ORDER
A.J. Sadashiva, J.
1. Whether the Bangalore Development Authority, hereinafter called 'the B.D.A.' is barred from making the allotment of a C.A. Site specified for a specific purpose, for such purpose, if such CA site is being used by the general public for any purpose other than the one for which it is specified and, whether the B.D.A. is barred from making the allotment of open spaces reserved under the erstwhile C.I.T.B. Act and specified for a specific purpose, for such purpose, in view of Section 16 of the Bangalore Development Authority Act, 1976, hereinafter called the 'BDA Act'? are the questions in controversy in these petitions.
2. In all these petitions except in the last petition the petitioners have called in question the allotment of CA site nos. 42, 39[a] and 39[c] situated in IIIrd Block, Koramangala Layout, Bangalore; Whereas the last petition is for a larger relief of a direction to- the BDA, not to make allotment of any CA site until the requirement of reservation of vacant land for parks and playgrounds as prescribed by Section 16 of the BDA Act is satisfied.
3. W.P.Nos. 15770-771/1992 are by some of the residents of III Block, Koramangala, to protect their common interest with that of other residents of Koramangala, in respect of CA site No. 39, situated in Koramangaia. These petitions are filed for,
[a] a declaration that the notification dated February 21, 1990 as per Annexure-'C' is illegal and without jurisdiction;
[b] to declare that the resolution dated May 24, 1990, in subject No. 1590 as per Annexure-'D' is illegal and void;
[c] to direct the respondents to forbear from giving effect to the aforesaid resolution as to allotment of CA site No. 39 in favour of respondents 3 and 4 and,
[d] to direct respondents 1 and 2 to forbear from diverting the said CA Site No. 39 for any use but to preserve the same as a playground for public use as specified in the layout plan.
4. The petitioners have contended that, the open space situated in the IIIrd Block, Koramangala, bounded on the East by : 10th Main West by : 12th Main, South by : 3rd Cross, which is identified as C.A. Site No. 39 is a C.A. site earmarked for a public playground; the BDA besides designating the said site as a playground has assured the petitioners and members of the public by erecting the concrete panels on all the four sides on the plot as the plot reserved for play ground; The said open site No. 39 is being used as playground as specified in the C.D.P.; The BDA without having any regard, either to the provisions of the BDA Act or to the public interest divided the said site into three parts and proposed to allot the CA site No. 39/A for a School and CA Site No. 39/C for an hospital by Notification dated November 21, 1990, and invited the applications from the eligible persons. It is further stated that CA Site No. 39/A is allotted in favour of the 3rd respondent for running a Kannada Medium School and CA Site N0.39/C is allotted in favour of the 4th respondent to establish an eye hospital. It is the contention of the petitioners that Site No. 39 is a playground and in the CDP it is shown as the place reserved for College; the BDA has recognised the said site as a playground by installing concrete panels; The BDA has no right to divert the said site for any purpose other than the one for which it is reserved; The BDA having due regard to the necessity of a public playground in the locality should reserve this area for the public playground as in any locality and public playground is much more than an amenity and, the allotment in favour of respondents 3 and 4 is violative of the scheme and Section 38A of the BDA Act.
5. The petitioners have, in support of their case, produced the xerox copy of the Layout plan; the notification issued by the BDA and the photographs of the land in question wherein the concrete panels are erected indicating that it is a BDA Civic Amenity Site, Public Playground.
6. The respondents have denied the contentions of the petitioners. They contend that the site in question is not reserved nor earmarked for playground; the area is designated as semi-public in the Comprehensive Development Plan; It is only a civic amenity site not expressly reserved for playground; The writing on the concrete panels that it is a public playground is not by the BDA but by someone else interested, in order to make it appear that it is reserved for playground; The mere inscription on the concrete panels, for which the BDA is not responsible, would not render the site reserved for playground unless it is specifically reserved either in the scheme or in the layout plan or by any subsequent resolution. It is contended by respondent No. 3 Ananda Education Trust that, the BDA has every right to allot the site reserved for a college for running schools as the objectives of both is to promote and propagate education and educational activities. It is further contended that the petitioners have filed this petition to prevent the 3rd respondent from starting a school even though they have no right and they could not have any objections; That, the petitioners have filed these petitions, not in good faith but to harass them; That they did not have any objections when a nearby CA Site was allotted for the construction of a temple. If the public interest is not suffered by allotment of a civic amenity site for a temple, it is contended by respondent No. 3 that, it is not open for the petitioners to contend that the public interest would be affected if another civic amenity site is allotted for educational activities.
7. The petitioner in W.P.Nos. 36334-335/1993 is a Cooperative House Construction Society, registered under the provisions of the Karnataka Co-operative Societies Registration Act, 1959. They filed these petitions for declaring the resolution No. 306/1992 dated 24.9.1992, passed by the BDA allotting CA Site No. 42 in III Block, Koramangala, in favour of respondent No. 2 as illegal and non est, with a further direction to the BDA to forbear from giving effect to the said resolution. They also pray for a writ of mandamus to BDA to furnish certified copy of the proceedings concluded in resolution No. 306/1992 dated September 24, 1992, with a further direction to consider the claim of the petitioners in so far as CA Site No. 42 and also CA Site adjacent to CA Site No. 39 and not to make allotment in favour of any other party pending consideration of the petitioners' claim.
8. The petitioner has contended that, CA Site No. 42 and CA Site adjacent to CA Site No. 39 are specified for social and cultural activities; They were notified for allotment as per Annexure 'C', the Notification dated June 4, 1992, inviting applications; The petitioner also applied for allotment in respect of both the sites and, that CA Site No. 42 is allotted in favour of the second respondent without considering the application of the petitioner in their proper perspective. It is their contention that the allotment of civic amenity sites is governed by the provisions of the Bangalore Development Authority [Allotment of Civic Amenity Sites] Rules 1989, hereinafter called the 'Rules'; Rule 7 of the Rules provides for the principles of selection of institutions; The respondent has not followed the said rules and therefore, the allotment in favour of the 2nd respondent is illegal and void. It is their further contention that they should have been heard by the committee constituted for the purpose of allotment of CA Sites, at the time of consideration of the applications; The allotment without providing an opportunity of being heard to the petitioner is violative of principles of natural justice.
9. The second respondent, filed its statement of objections inter alia contending that, it is an association registered under the Societies Registration Act; and, established to promote the social and cultural activities; it is one of the leading social and cultural associations working for the peace and prosperity of the society; The aim is sought to be achieved through social, cultural and charitable activities. It is further contended by them that as a part of its social and cultural activities it had organised several musical concerts, dance programmes and dramas and play by leading artists of the country; The institution has since 1988 started awarding scholarship to the students coming from weaker sections of the society irrespective of caste, creed or community and they have also taken a keen interest in providing drinking water supply by installing borewells at different localities and every year they are devoting certain time and money towards social cause; Since they did not have any space of their own for the effective execution of their scheme, they have been applying to the BDA for allotment of a CA site in order to construct a multipurpose community hall mainly for promoting the cause of art and culture. It is their contention that as the site in question is designated for social and cultural activities, no illegality is committed I in the allotment of the said site in their favour as they have satisfied all the conditions prescribed for allotment. They have also stated that the members of the association is open to all; It is a public organisation; It is not established with any commercial motive. Dealing I with the complaint that it would be used as a Kalyana Mantapa it is stated that they are prepared to give an undertaking that it would not be used as a Kalyana Mantapa.
10. The petitioners in W.P.24779/94 are stated to be the residents of Koramangala and also the office bearers of Koramangala Residents Vigilance Group.
11. In this petition they are seeking for the following reliefs:-
[a] to declare that the resolution No. 306/92 dated 24.9.1992 and the allotment made by the first respondent in favour of the 2nd respondent in respect of the civic amenity site bearing No. 42 in IIIrd Block, Koramangala, Bangalore, is illegal and non est;
[b] to direct the first respondent-BDA to forbear from giving effect to the aforementioned resolution and to produce the records relating to resolution No, 306/92 passed on 24.9.1992 and the allotment file in favour of the 2nd respondent in respect of the CA Site No. 42.
12. The main contention of the petitioners in this petition is that the site in question though notified for allotment for the purpose of social and cultural activities, the 2nd respondent has obtained the allotment for the purpose of constructing a Kalyana Mantapa. It is their further contention that the 2nd respondent is planning to have a Kalyana Mantapa under the cover of community hall. The seating arrangement in the hall and in the dining room with seats for hundreds at the basement with a kitchen facility etc., clearly goes to show that their intention to have a big Kalyana Mantapa.
13. The 2nd respondent has filed its statement of objections along with certain documents disputing the contention of the petitioners. In para 5 of the statement of objections it is stated that :-
5. The respondent No. 2 as a part of its charitable programme right from 1988 has been awarding scholarship to meritorious students coming from economically weaker section of the society without any distinction made regarding caste, colour, creed or sex. A statement of awarding scholarship by the respondent No. 2 to meritorious students in the year 1993-94 in various fields to students of different colleges is annexed hereto and marked as 'Annexure-R3'. It could be seen that from 1988 to 1994, the Respondent No. 2 has spent a sum of Rs. 4,50,000/- for scholarship. The respondent No. 2 has contributed for improving the drinking water facilities by installing 25 bore-wells in different localities for the benefit of poor and downtrodden without any discrimination regarding caste and community at an expenses of Rs. 5 lakhs as disclosed by Statements and Auditor's Report of the Respondent No. 2.....
The respondent No. 2 in para 12 of the statement of objections has further stated as follows :
'12. The allegations of the petitioners that the respondent No. 2 is trying to put up a 'Kalyana Mantapa' in the said CA site is emphatically denied by the Respondent No. 2. The respondent No. 2 respectfully submits that in view of the cultural and charitable activities in which it is engaged, it was very much in need of a CA site for constructing an Auditorium/Community Centre which would be utilised for cultural and social activities only. The Respondent No. 2 succinctly states that it has no intention whatsoever of using the said Auditorium/Community Center for marriage purposes and utilize the same for commercial gain. The Respondent no.2, as a matter of fact, is a non-profit organisation and as such it has no intention to change the use of land for profit purposes. It is only a figment of imagination of the petitioners that the Respondent No. 2 is intending to put up Kalyana Mantapa.'
14. The petitioners in W.P 1 964071996 are stated to be internationally acclaimed sports persons and public spirited citizens residing in Koramangala, Bangalore. They have filed this petition for the following reliefs:-
[i] to declare that site nos. 39 and 42 require to be maintained as play ground and protected under the provisions of the parks, Playgrounds, Open Spaces [Preservation and Regulation] Act, 1985;
[ii] to quash the order of allotment made in respect of site no. 42 in favour of 3rd respondent;
[iii] to quash the order of allotment made in respect of site no. 39[c] in favour of the 4th respondent;
[iv] to quash the order of allotment made in respect of site No. 39[a] in favour of the 5th respondent;
[v] to restrain the respondents 3, 4 and 5 from using site nos. 39 and 42 and to direct the first and second respondents to implement the provisions of the BDA Act 1976 and the Parks, Playgrounds and Open Spaces [Preservation and Regulation] Act, 1985, hereinafter called the 'PRO ACT'.
15. The main grievance of the petitioners in this petition is that site Nos. 39 and 42 situated in 3rd block, Koramangala, are civic amenity sites and they were being used as playgrounds for over 20 years. That in 1992, the first respondent notified site No. 42 as a site reserved for social and cultural activities and parts of site No. 39 reserved for hospital and school and invited applications for allotment from the eligible persons for allotment. It is their contention that even though large extent of land was shown as parks and playgrounds in the development plan large extent of land were utilised for various purposes and therefore there is no vacant place for playgrounds. Site No. 42 and site No. 39 situated in Koramangala layout are being used as playgrounds for more than 20 years and it has been recognised as such by the Bangalore Development Authority and the Corporation by erecting concrete panels describing the area as 'BDA Civic Amenity-Public Playground'. It is their further contention that the said sites cannot be converted for different purposes in order to allot it to private persons for commercial venture. They have also further contended that the first and second respondent did not take action under the PPO Act and therefore they have violated the provisions of the said Act. The petitioners' further case is that site No. 39 which was specified for a college in the layout plan is divided into 3 parts and has been allotted in favour of respondents 4 and 5 in piece-meal without having lawful authority to divert the same from one purpose to another in violation of Section 38-A of the Act.
16. The respondents have disputed the contentions of the petitioners.
17. The petitioner in W.P.33913/1996 is a retired Naval Officer, he is residing in Koramangala layout. He has filed this petition as a public interest litigation for a writ in the nature of mandamus directing respondents to forbear from allotting any land available in the scheme as vacant space, irrespective of the land use in the CDP for any purpose other than retaining the public park and play ground until atleast 15% of the scheme is assured to the petitioner as public park and playground; with a further writ in the nature of mandamus directing respondents to recall any allotment of civic amenity sites which is left vacant and retain the same as public park and playground until the petitioner is assured of the statutory minimum of 15% of the scheme as public park and playground.
18. The BDA having entered appearance filed its statement of objections disputing the contention of the petitioner in respect of its inaction and has contended that the scheme is being implemented in accordance with the layout plan as approved in the year 1972 and it has not been violated in any manner. It is contended by the BDA that the BDA has not allotted any piece of Civic Amenity Site to any private party at all. The area is reserved for the purpose for which it has been reserved, the allotments are made in accordance with the rules, the petitioner has not produced any authenticated documents to show that the respondent-authority has made any allotment of CA sites to private individuals or permitted any third party to encroach upon open space available in the scheme; The petitioner on mere apprehension make such bald statement without there being any material on record.
19. Even though the writ petition W.P.33913/1996 is filed as a public interest litigation for a larger relief than the reliefs prayed in the other petitions, from the contents of the petition it is virtually a petition supporting the contention of the petitioner in other petitions and has adopted a different route to achieve the object. I am therefore, of the view that it is just and appropriate to consider W.P.No. 33913/1996 first, before taking the other petitions into consideration.
20. In view of the reliefs claimed by the petitioner, it is necessary to note certain statements made in the petition which are as follows:-
In para-1 of the petition the petitioner has stated that,
'...The respondents should ensure that any land already allotted as civic amenity sites but continues to remain vacant should be maintained and retained as open space until petitioner is assured of a minimum of 15% of the scheme as Public Park and play ground.'
In para 17 of the petition the petitioner has stated that,
'The petitioner fears that the land now available as open space would be allotted for other purposes whereby third party rights would come in and the petitioner would thus be unable to enforce his fundamental right to public park and play ground. This will result in irreparable loss and injury to them. The petitioner also fears that land already allotted as civic amenity sites and kept vacant for several years would now be quickly put to construction by private owners even though the petitioners statutory right to public park and playground is not met with.'
Even though the second relief in the petition is for a direction to respondents to recall any allotment of civic amenity sites which is left vacant and retain the same as public park and playground until the petitioner is assured of the statutory minimum of 15% of the scheme as public park and playground, it is virtually a prayer to set aside the allotment made in favour of various institutions without making them a party.
21. The petitioner's main grievance appears to be that, under Section 16 of the BDA Act, every development scheme under Section 15 of the Act shall provide for not less than 15% of the total area of the scheme for public parks and playgrounds and additional area of not less than 10% of the total area of the scheme for its civic amenities. It is therefore, his contention that he was assured of adequate lung space in the scheme for the enhancement of the quality of his life.
22. The BDA in its statement of objections has stated as follows:-
'3. It is submitted that the layout in question has been approved in the year 1974, i.e. prior to coming into force of the Bangalore Development Authority Act, 1976. Hence, the question of granting such a relief is impermissible. The petitioner has not made out any prima facie case for interference of this Hon'ble Court.
4. It is submitted that Koramangala Layout consists of eight blocks. CA site numbers are given block wise and also dimensions in meters and area in square meters etc. This fact is evident from the statement which contains the particulars of CA sites in Koramangala Layout. The statement showing the details of the CA sites in Koramangala Layout is filed herewith and marked as Annexure-R1, for kind perusal of this Hon'ble Court. The said statement is prepared on the basis of the layout plan. The entire layout plan is produced herewith. In the said layout CA sites are indicated. The copy of the layout plan of Koramangala is filed herewith and marked as Annexure-R2. The boundaries of the CA sites are shown with red colour. This respondent authority has strictly adhered to the layout plan and there is no violation as such is committed nor the authority has converted any portion of the area marked for a specific purpose. The petitioner has not produced an iota of evidence to show that a particular C.A. site has been diverted to some other purpose. Therefore, the writ petition is a misconceived one and hence the same is liable to be dismissed.'
The BDA has also furnished certain particulars with respect to Civic Amenity sites.
23. Mrs. Laila T, Ollapalfy, learned Counsel appearing for the petitioner has contended that protection of the environment, open spaces for recreation and fresh air, playgrounds for children and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a developmental scheme. Section 16[d] of the BDA Act in order to provide all those conveniences or amenities to make the life of the petitioner and others similarly situated, a meaningful one has prescribed certain percentage of area to be set-out for parks and playgrounds and other civic amenities. The BDA without -having any due regard for Section 16[d] of the BDA Act is disposing of the vacant sites to various persons without maintaining the percentage of vacant land for parks and playgrounds prescribed by Section 16[d] of the Act. It is therefore, necessary for this court to issue direction to forbear BDA to make allotment and to recall allotments which has already been made but not utilised to bring the vacant land within the ratio of the prescribed limit to provide parks and playgrounds. In support of her contention Mrs Laila T. Ollapally, relied on the decision of the Supreme Court in BANGALORE MEDICAL TRUST v. B.S. MUDDAPPA AND OTHERS, : [1991]3SCR102 and M.C. MEHTA v. UNION OF INDIA, : (1997)3SCC715 .
24. It is true that, the Supreme Court in M.C. Mehta's case, has held that,
'All preventive measures have to be taken keeping in view the carrying capacity of the ecosystems operating in the environmental surroundings under consideration.'
In Bangalore Medical Trust, the Supreme Court has held as follows :
'24. Protection of environment, open spaces for recreation and fresh air, play grounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be scarified by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens.
25. Reservation of open spaces for parks and play grounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbansiation.'
[Emphasis supplied]
25. In the light of the aforesaid decision and in the facts and circumstances of this case, it is necessary to examine whether the petitioner is entitled for the reliefs claimed in this petition.
26. It is admitted that Koramangal Layout scheme was approved prior to the BDA Act coming into force. It is also not in dispute that the said scheme was approved under Section 14 of the City of Bangalore Improvement Act, 1945, for short 'the CITB Act'. Under the CITB Act there was no provision for reservation of any land for parks and playgrounds and civic amenities separately. What is provided therein was sufficient open spaces for ventilation. The layout plan prepared, in respect of the scheme indicated, extent of open spaces left and all those spaces were shown and specified for a certain purpose in the layout plan together with its extent. It is not the case of the petitioner that any of those vacant spaces reserved for a specific purpose has been diverted for a different purpose; nor is there any complaint that the civic amenity sites were allotted in favour of individuals for commercial purposes; nor is there any allegation that some have been allotted in violation of the provisions of the Act or the scheme or the provisions of the planning Act. The contention of the petitioner is that by virtue of Section 16[d] of the BDA Act there shall be reserved an extent of not less than 15% of the total area of the layout for parks and playgrounds and until that ratio is maintained the BDA shall not make allotments of vacant sites in favour of anyone and to recall the order of allotment if any made and if such sites are not yet utilised. In this view of the matter, the question would arise whether the petitioner can maintain a petition for enforcing a provision under the BDA Act in respect of a scheme prepared and enforced under the CITB Act. It is no doubt true that the Supreme Court in Bangalore Medical Trust case has held that,
'The subsequent amendments are not a deviation from or alteration of the original legislative intent but only a elucidation or affirmation of the same.'
But that, in my considered view, would not mean that all the vacant sites reserved as civic amenity sites under the CITB Act should be maintained for parks until the area reserved for parks would satisfy the requirement of Section 16[d] of the BDA Act. The Supreme Court in the context of the facts of the case in Bangalore Medical Trust has held that, Sections 16[1][d] and 38A and other provisions are care factory of this object of accomplishment of the statutory object which is to promote the orderly development of the City of Bangalore and adjoining areas and to preserve open spaces by reserving public parks and playgrounds with a view to protecting the residents from the ill-effects of the urbanisation. The petitioner's case is not that, no area is reserved for parks but the area available is less. That is the area reserved in the scheme prepared and approved in 1974, pursuant to which sites have been allotted and, the allottees including the petitioner have accepted the allotment in accordance with the scheme. Can it be altered in the year 1997 to bring the scheme on par with Section 16[1][d] of the Act without affecting the interests of others? Is the petitioner entitled for more amenities than what is provided in the scheme, pursuant to which he accepted the allotment? In my considered view, it is not possible. What is necessary in this context is to maintain the areas reserved for any specific purposes for such purposes only. Even otherwise, it is not possible for this Court, in the absence of any data of the area reserved as the vacant space where parks are provided in the development layout, to hold that the vacant space reserved is not sufficient for ventilation or fresh air. Dealing with the contention that under Section 16[1] that every development scheme shall- provide for the reservation of not less than 15% of the total area of the layout for public parks and playgrounds and an additional area of 10% of the layout for civic amenities, the Supreme Court, in H. KASHINATH AND ORS. v. STATE OF KARNATAKA AND OTHERS, : AIR1995SC2510 has held that,
'In the absence, however, of any relevant data showing that this plot is within this minimum reservation we are not examining this contention of the appellants.'
The facts in this case are no different from the facts in the said case in so far as it relates to the data. Hence, it is not just and proper for this court to examine the contention, 23 years after the scheme was approved and enforced, whether it satisfy the requirements of Section 16[1][d] of the BDA Act.
27. Even otherwise, the relief prayed in this petition cannot be granted in the absence of any specific allegation of violation of statutory provision by the BDA. It is well settled that every authority established under a statute would perform their function, exercise their power and discharge their duties in accordance with the provisions of the said statute and no direction may be issued to such statutory authority to perform its function, exercise its powers and discharge its duties in accordance with law, in the absence of any specific allegation and on proof of such allegations, No specific allegation is made in this petition in respect of any particular allotment in violation of the statutory provisions. The relief prayed is, therefore, too general in nature to be granted.
28. This petition is also liable to be dismissed for want of necessary parties. The petitioner has prayed for a direction to BDA to recall the allotment made. It is virtually a prayer to set aside the allotment. No allotment of a site can be set aside without providing the allottee an opportunity of being heard, particularly where the possession of the sites has already been delivered. The petitioner has not joined even a single allottee as a party to these proceedings. This petition is, therefore, liable to be rejected solely for non-joinder of necessary parties.
29. W.P.3G334 and 335/1993 are filed by a Cooperative House Construction Society registered under the provisions of the Karnataka Cooperative Societies Act. Pursuant to he notification issued by the BDA inviting applications for allotment of Civic Amenity sites No. 42 and another site situated adjacent to Site No. 39, they filed their applications for allotment of the same. It is their case that site No. 42 is allotted in favour of the second respondent where no action is taken in respect of a site situated adjacent to site No. 39. Their main grievance is that the allotment of the site No. 42 in favour of respondent No. 2 is illegal and non est, for having been made in violation of Rule 7 of the rules without considering their application in its proper perspective and for not providing them an opportunity of being heard.
30. It is not in dispute that site No.42 is specified for allotment for social and cultural activities. Eight applications were received by the BDA. The BDA after detailed scrutiny and examination of all the applications resolved to allot this site in favour of the 2nd respondent. Except the petitioner no other applicant has challenged the allotment of site made in favour of the second respondent, nor is it the case of the petitioner that the reservation of the site in question for social and cultural activities is illegal. The petitioner sought for the allotment of the said site only for the purpose of promoting social and cultural activities. The BDA has considered the applicants' applications on their merits. The second respondent had produced before the BDA their byelaws, the objects, the particulars of the social and cultural activities being organised. It is seen from the records produced before this Court that the 2nd respondent has arranged any number of cultural activities in Bangalore City. In addition to that they have also undertaken social activities to help those students who come from the lower strata of the society by awarding scholarship and prizes and also assisting the sinking of borewells in backward areas. It is seen from the byelaws of the Society that it is not confined to any group; The admission is open to those who possess the eligible qualification. The BDA, after having examined all this resolved to allot the site No. 42 in favour of the 2nd respondent. It is no doubt true that the resolution does not contain all these particulars. But there is a reference as to the consideration.
31. If, the BDA after having considered each of the applications on relevant merits and decided to allot the site in favour of the 2nd respondent, it cannot be said that it is an arbitrary decision. This court cannot look into the consideration of the comparative merits also, if the decision making process is just and proper. I find no irregularity in the decision making process.
32. Even otherwise, in my considered view the petitioner cannot question the allotment of site No. 42 in favour of the 2nd respondent as he did not possess the required eligibility to apply. Admittedly, the petitioner is a House Construction Co-operative Society which is purely meant for construction activities and the activities related to or incidental to the main activities. Either in their petition or in the byelaws of the society there is no reference to any social or cultural activities. If the object of the petitioner is not to promote social and cultural activities it cannot be said that the petitioner possessed the eligible qualification. Where the petitioner did not possess the eligible qualification and where he did not question the reservation of the site for the social and cultural activities, he cannot question the allotment of civic amenity site No. 42 in favour of the second respondent on any other ground.
33. The residents and the office bearers of Kormangala Residents Vigilance Group have filed W.P.No. 24779/1994 for the same relief as prayed in W.P.NOs. 36334 and 335/1993. The petitioners have not disputed that the 2nd respondent Deppayan is a social and cultural association. They have also not disputed that site No.42, Koramangala, was a Civic Amenity Site and specifically earmarked for social and cultural activities. However, they have filed this petition to declare that the allotment is illegal and non est solely on the ground that the 2nd respondent has obtained allotment to have a Kalyana Mantapa under the cover of a Community Hall. The petitioners in W.P.Nos. 36334-335/1993 have also raised a similar objection. It is their contention that Kalyana Mantap is not a civic amenity and therefore the allotment of site No. 42 for construction of Kalyana Mantap is illegal and non est. In support of their contention they relied on the decision of the Supreme Court in SENGUNTHAR TRUST v. BANGALORE DEVELOPMENT AUTHORITY AND OTHERS, 1993 Supp [1] SCC 672 by which the Supreme Court has affirmed the finding of this Court that, allotment for the purposes of Kalyana Mantapam may have been a public convenience but it was not a civic amenity or amenity under Clauses (bb) and (b) of Section 2 of the Act.
34. The petitioners have next contended that the allotment of CA sites in favour of the 2nd respondent for construction of a Kalyana Mantapam or for any construction which is not meant for public purposes is not a civic amenity and therefore the allotment is illegal and non est. They draw support for their contention from the decision of the Supreme Court in H. KASHINATH AND OTHERS v. STATE OF KARNATAKA AND OTHERS., wherein the Supreme Court has held that the allotment of a civic amenity site in favour of Karnataka Chalana Chitra Kalavidara Sangha cannot be considered as objects which fall under the category of public or semi-public purpose. The Supreme Court in the aforesaid decision has held that:
'We presume that this would be on payment of hire charges and it would not be a free use, since the fourth respondent is essentially an organisation for the benefit of film artists and its avowed object is to raise funds and utilise them for the benefit of film artists. The lease in question, therefore, is not for a public or semi-public purpose. It is purely for the benefit of the fourth respondent.'
It has further held that,
'...Unfortunately, even these Bye-Laws do not help respondent No. 4 First of all respondent No. 4 cannot be described as an educational, cultural or religious institution. It is essentially a society for the promotion of interests of film artists. Secondly, what is being constructed is not a community hall. What is being constructed is a theatre to train artists and stage plays or show films in that connection along with a school for training artists. It is nowhere stated that the theatre would be open to the public at a nominal cost, or that the fourth respondent will not make profits out of running the theatre, or hiring it out to other organisations or individuals. In fact, one of the avowed aims of respondents No. 4 is to earn income which can be utilised for the objects of the Association.'
The facts in this case are entirely different from the facts in the case of H. KASHINATH. The second respondent is a registered association; Admission is open to all. It is admittedly a social and cultural association established to promote and propagate the cause of art and literature and to render social service. They have specifically pleaded that they are constructing a Community Hall to promote cultural activities and it will not be made use of for marriage purposes. The dining hall is provided to provide free lunch for students and other communities during special occasions. The plan is also sanctioned for construction of a community hall. Just because a kitchen is provided in the cellar it is not possible to hold that they are constructing a Kalyana Mantap. If the second respondent violates any conditions of the grant, it is open for the BDA to take appropriate action for such violation. It cannot be a ground to cancel the allotment. The petitioners except pleading that the 2nd respondent is constructing a Kalyana Mantap in the guise of community hall, have not made out any ground to cancel the allotment.
35. Allotment of Site Nos. 39A in favour of Ananda Social & Educational Trust, Respondent No. 3 and allotment of site No. 39C in favour of Yeshomurthy Trust, Respondent No. 4, are sought to be quashed by the petitioners in W.P.Nos. 15770 and 15771/1992. Similarly, the allotment of a site No. 42, CA Site No. 39/C and CA Site No. 39/A, in favour of Deepayan, herein after called Respondent No. 3, Ananda Social & Educational Trust, hereinafter called Respondent No. 4, and Yeshomurthy Trust, herein after called Respondent No. 5, respectively, are sought to be quashed by the petitioners in W.P.19640/1996.
36. As stated supra, the petitioners have contended that CA Site Nos. 42 and 39 situated in Koramangala IIIrd Block are being used as playgrounds for over 20 years. The BDA has also recognised them as playgrounds by erecting concrete panels showing the same as public play ground and assured them that they would be retained as such for the benefit of the residents of Koramangala. Except the aforesaid CA Sites there are no other CA Sites reserved as playgrounds. The BDA in violation of the statutory provisions notified CA site No. 42 for allotment from social and cultural activities and CA site No. 39 for school and hospital after bifurcating the same into 3 parts. It is their further contention that site No. 39 was shown as the one reserved for college in the layout plan and the BDA cannot divert the same for a different purpose in violation of Section 38-A of the BDA Act. Site No. 42 has been allotted in favour of an association of rich persons for commercial purposes. The allotment has deprived the residents of the Kormanagala Layout of their right to playgrounds and for ventilation and fresh air. They have also contended that the first respondent failed to take action under the PPO Act. These areas should have been declared as parks and playgrounds under the PPO Act. The inaction of BDA has resulted in grave injustice to the residents of Kormanagala layout. They have also contended that the 3rd respondent intends to construct on Site No. 42, a Kalyana Mantapa which will have a huge auditorium and a dining hall and a large kitchen. For obvious reasons this Kalyana Mantapa has been referred to as a Community Centre.
37. By annexure-C, the notification dated 21.2.1990 issued by the BDA as produced in W.P.No. 19640/1996 it is seen that the BDA notified four more sites situated in IVth Block, Koramangala, for allotment along with CA Site Nos. 39/C and 39/A situated in Koramangala III Block. The allotment of those CA sites have not been questioned in any of these petitions nor is there any averment in respect of the aforesaid civic amenity sites. C.A. Site No. 31 measures 4180 Sq.Mtrs. C.A. Site No. 6 measures 1800 Sq.Mtrs; C.A. Site No. 30/A measures 2190 Sq.Mtrs; and C.A. Site No. 7 measures 1531 Sq.Mtrs. In none of these petitions the allotment of these sites is called in question. I secured the original layout plan wherein the properties in question are shown as Civic Amenity sites; One reserved for petty shops and the other viz., site No. 39 reserved for college. Neither of them have been shown to have been reserved either for park or for a playground. The petitioners want this Court to hold that they are playgrounds because they are being used as playgrounds and the same is also inscribed on the concrete panels. The BDA in its statement of objections has no doubt admitted the erection of concrete panels but they denied the writing thereon that they are public playgrounds. They have contended that it must have been written by some persons interested. The CA sites cannot be held to have been reserved for playgrounds without being specifically reserved for such purpose either in the scheme or in the plan, merely because it is being used by some locals and it is described as such on a concrete panel. CA Site No. 42 is no doubt shown as reserved for petty shops. But it is later notified for allotment for social and cultural activities. Sri Chandi, learned Counsel appearing for the petitioners in W.P. 19640/1996 has contended that there is a deviation and therefore the allotment is bad. The contention of Sri Chandi is unsustainable for more then one reason. Firstly, he has not pleaded in his petition that it is diverted for a purpose different from the one for which it is reserved and thereby the petitioners are affected. Secondly, there is no specific pleading as to the respondents did not have an opportunity to traverse. Thirdly the residents of the locality, as in other petitions, have admitted that CA site No. 42 was specified for social and cultural activities by BDA and as such it was within their knowledge. Lastly, as the reservation of site No. 42 for social and cultural activities is not challenged, challenge to the allotment of CA site No. 42 is therefore unsustainable in law.
38. However, the case in respect of CA site No. 39 is distinguishable from CA Site No. 42. C.A. Site No. 39 has been reserved for a college in the Layout plan. CA Site No. 39/C and CA Site No. 39/A were notified for allotment for School and Hospital respectively. There is no dispute that CA Site No. 39 is bifurcated into 3 sites, viz., CA Site No. 39A, CA Site No. 39B and CA Site No. 39C. CA Site No. 39C and CA Site No. 39A were notified for allotment for school and hospital respectively. There is also no dispute that Section 38A of the Act deals with the grant of area reserved for civic amenities, prohibits the disposal of any area reserved for public parks and playgrounds and civic amenities, for any other purposes. It reads as under:-
'38A. Grant of area reserved for civic amenities etc:-
1) The Authority shall have the power to lease, sell or otherwise transfer any area reserved for civic amenities for the purpose for which such area is reserved.
2) The Authority shall not sell or otherwise dispose of any area reserved for public parks and playgrounds and civic amenities, for any other purpose and any disposition so made shall be null and void:
Provided that where the allottee commits breach of any of the conditions of allotment, the Authority shall have right to resume such site after affording an opportunity of being heard to such allottee.'
This Court in HOLY SAINT EDUCATION SOCIETY v. VENKATARAMANA, P ILR 1982[1] KAR 1, has held that where, 'under the improvement scheme drawn up by the Board and approved by the Government, the said site had been reserved for children's playground, unless the scheme was modified in accordance with law, the site could not be utilities for any purpose.' In NARAYANA REDDY v. BANGALORE DEVELOPMENT AUTHORITY, ILR 1992 KAR 2329 this Court has again held that, 'once under the scheme a particular site is specified as a Civic Amenity Site, that cannot be altered except in accordance with the provisions contained in the Act and not by mere passing a Resolution of the nature in question.' The site which was originally reserved for college is bifurcated into three small bits for being allotted to a school and to a private hospital. No material is placed before this Court as to under what authority the site No. 39 is bifurcated into 3 different sites and CA Site No. 39A and CA Site No. 39C were proposed for allotment to a hospital and a school. This is clearly in violation of Section 38A of the Act. The allotment of Civic Amenity Site No. 39C and 39A in favour of respondents 4 and 5 respectively is therefore unsustainable in law.
39. In the result, I pass the following order:-
(a) W.P.Nos. 36334-335/93, W.P.No. 24779/94 and 33913/1996 are dismissed. Rule discharged.
W.P.No. 19640/1996 is partly allowed. The petition challenging the allotment of CA Site No. 42 in favour of 3rd respondent (Deepayan) is dismissed.
The petition challenging the allotment of CA Site No. 39C and CA Site No. 39A in favour of respondents 4 and 5 respectively are hereby allowed.
In view of the order in W.P.No. 19640/1996, W.P.No. 15770 and 15771/1992 are also allowed. The allotment of CA Site Nos. 39C and 39A in favour of respondents 3 and 4 therein is hereby quashed.
40. In the circumstances of the case 'there is no order as to costs.