Judgment:
1. The petitioners are residents of a locality formed by Meghadoot Cooperative Housing Society Limited. The case of the petitioners is, that when the layout of the aforesaid housing society was finalised, an area measuring 18 guntas of land was earmarked as open space. The aforesaid open space was vested with the Corporation of the City of Belgaum (respondent No.3). under Section 174 of the Municipal Corporation Act, as a trustee. It is the case of the petitioners, that the aforesaid open space must be deemed to be a park, within the meaning of Section 2(f) of the Karnataka Parks, Play-fields and Open Space (Preservation and Regulation) Act. 1985. Despite the aforesaid, it is the submission of the learned counsel for the petitioners, that Resolution No.378 came to be passed by the Corporation of the City of Belgaum on 7.6.1999 whereby, an area of 6 guntas of land in the open space of R.S.No.205 of Meghdoot Co-operative Housing Society was allotted to the Banashankari Education and Social Welfare Society, with liberty to the aforesaid society to construct a school on the allotted land. The submission of the teamed counsel for the petitioners is that the open space could not be allotted for any other purpose, other than for park and playground, i.e. the very purpose for which it was originally reserved, and for which, it came to be transferred to the Corporation of the City of Belgaum, under Section 174 of the Municipal Corporation Act.
2. Even though the instant writ petition has been filed as a cause in public interest, it is the vehement submission of learned counsel representing respondent No.4. that the petitioners are also remiss of the same fault, which they are attributing to respondent No.4. namely, under the aforestated impugned Resolution No.378, the petitioners were allotted 5 guntas of land from the same open space for maintenance of Batta Mandir and public garden. For the aforesaid purpose, learned counsel for respondent No.4 has handed over to us, in Court today, a photograph depicting the temple constructed on the land allotted to the petitioners for maintenance as Datta Mandir and public garden. The aforesaid photograph is taken on record and marked as Annexure-A.
3. During the course of hearing, we invited the attention of the learned counsel for the rival parties to a decision rendered by a Division Bench of this Court in Balappa Basamanappa Kosji and others vs. The State of Karnataka and others (Writ Petition No.24363/1992, decided on 1.8.2001). Having perused the aforesaid judgment, whilst learned counsel for the petitioners stated that the aforesaid judgment adjudicated a controversy exactly similar to the one which is subject matter of consideration in the instant writ petition, learned counsel for respondent No.4 distinguished the same by asserting, that the land herein, i.e.. in the present controversy, has been leased to respondent No.4 whereas, in Writ Petition Mo.24363/1992, the same was sold to a party, similarly situated as respondent No.4. Be that as it may, we are satisfied, that the distinguishing feature pointed out at the hands of the lettmed counsel for the respondents would have no effect in the facts and circumstances of this case, specially on account of the fact, that, the land herein was also transferred under Section 174 of the Municipal Corporation Act to the Corporation of the City of Belgaum for maintenance as an open space, as it was in the aforesaid case wherein. it had been transferred to the Corporation of Gulbarga City. Herein, as also in Writ Petition No.24363/1992, the object of the transfer is to authorise the transferee to construct an educational institution. Thus viewed, we arc satisfied, that the controversy raised in the instant writ petition is squarely covered by the decision rendered in Balappa Basamanappa Kosji's case supra.
4. In view of the above, the instant writ petition is also liable lo be disposed of in terms of the order passed by the Division Bench of this Court in Balappa Basamanappa Kosji's case supra. Ordered accordingly.
5. In view of our aforesaid determination, the impugned resolution dated 7.6.1999 to the extent, that it has leased out land to respondent No.4 for erection of a school building is hereby set aside.
6. Insofar as the construction of the temple premises in the same open space is concerned, learned counsel for the petitioners vehemently denies, that the petitioners have either been vested with the responsibility of maintenance of the said temple, or that they have actually constructed the same. In the aforesaid view of the matter, it will be open to respondent No.4 to raise a challenge to the construction of the temple, if so advised, by filing a fresh writ petition, impleading those responsible for the construction of the temple. Allowed in the aforesaid terms.