ORDER
Mohan Shantanagoudar, J.
1. Heard Sri Udaya Holla, Learned Senior Counsel appearing for the petitioner and Sri U. Abdul Khadar, Learned Counsel appearing for the Respondent No. 1 authority and Sri Anant Mandagi Learned Counsel appearing for Respondent No. 2 and perused the records.
2. The petitioner has sought for writ of certiorari for quashing the decision of the 1st respondent dated 3-10-2002 by which, the 1st respondent-‘BDA’ decided to execute the Civic Amenity Sites Lease Agreement in favour of the 2nd respondent ‘Trust’ and also for quashing the C.A. Site lease agreement dated 27-2-2003 executed by the 1st respondent Bangalore Development Authority (‘BD A’ for short) in favour of the 2nd respondent M/s Appalo Educational Trust (r) (‘Trust’ for short) registered before the Sub-Registrar, Bangalore Urban District.
3. The 1st respondent ‘BDA’, pursuant to the direction of this Court issued in W.R No. 29200/1994 sold twenty (20) acres of land situated in Survey No. 17 of Kathriguppa village, Bangalore South Taluk through two registered sale deeds dated 2-8-1996 and 24-10-1998 respectively vide Annexure-B and C to the writ petition in favour of petitioners’ society under bulk allotment scheme. Thereafter, the petitioner has paid the betterment charges and property tax, consequent upon which, katha was transferred in the name of petitioner housing society.
The layout plan submitted by petitioner was approved by the ‘BDA’. In the said layout plan, the petitioners’ ‘Housing Society’ has reserved certain vacant sites for Civic Amenities purposes and one such Civic Amenity Site (‘CAS’ for short) i.e. schedule property is reserved in a portion of ‘U’ Block. According to petitioner, it has not surrendered any Civic Amenity site in any block of its layout to the ‘BDA’ and all the sites and land are in possession of the petitioner; that it is the absolute owner of the entire land including the ‘CAS’ inasmuch as it has paid the entire value of the land to ‘BDA’. In the meanwhile, the 1st respondent ‘BDA’ has leased the ‘CAS’ in question in favour of the 2nd respondent ‘Trust’ for a period of thirty (30) years for the purpose of running school through the impugned registered lease agreement dated 27-2-2003 produced at Annexure-K and possession is handed over to the 2nd respondent. After taking possession of the said ‘CAS’, the 2nd respondent has started construction of school building.
4. Sri Udaya Holla Learned Senior Counsel appearing for the petitioners’ ‘Housing Society’ vehemently submits that the 1st respondent has no right whatsoever to lease the “CAS” in question in favour of the 2nd respondent Trust’. As the 1st respondent has got no right, title or interest over the said ‘CAS’, it should not have leased the said property in favour of the 2nd respondent; that when the 1st respondent has sold the entire 20 acres of land including the schedule property in favour of the petitioners’ society by accepting the full sale consideration, the ‘BDA’ cannot have any right, title or interest on the property in question; that the ‘BDA’ has no right whatsoever to allot the ‘CAS’ in question unless the said ‘CAS’ is relinquished to ‘BDA’; that in the present case, according to the petitioner, various ‘CAS’ laid in the layout including the petition schedule property are not relinquished to the 1st respondent; that the 1st respondent has not followed the procedure contemplated under ‘BDA’ (Allotment of Civic Amenity Sites) Rules, 1989 (hereinafter referred to as ‘CAS Rules’ for short) while leasing the property in question in favour of 2nd respondent Trust’ inasmuch as, the ‘BDA’ has not given due publicity regarding the allotment of ‘CAS’ as required under Rule-3(3) of ‘CAS Rules’.
5. Per contra, Sri U. Abdul Khader and Shri Ananth Mandagi Learned Counsels appearing on behalf of the ‘BDA’ and second respondent respectively, contended that it is mandatory on the part of the petitioner ‘Housing Society’ to transfer the ownership of roads, drains, water supply mains and open spaces of the layout formed by it to the ‘BDA’ permanently without claiming any compensation, as the same is condition precedent for approval of the layout plan submitted by the petitioner as contemplated under Section 32(5) of the Bangalore Development Act 1976 (‘Act’ for short); that ‘BDA’ has suo-moto taken possession of the schedule property under mahazar dated 3-12-2001 and after taking over possession of the ‘CAS’, the ‘BDA’ has leased the same in favour of the 2nd respondent Trust after following the due procedure, rules and regulations for valuable consideration of Rs. 46,20,728/-. It is pointed out that due publicity is given on 1 -5-2002 in respect of allotment of’CAS’ in various layouts including the ‘CAS’ in question by publishing the notification in Kannada and English news papers which are having wide circulation in Bangalore City. They produced the copies of the said paper publications before the Court. According to them, the respondent No.2 after taking possession of the same, has started constructing the building for the school.
6. There cannot be any dispute that the petitioner has purchased 20 acres of land from the ‘BDA’ under bulk allotment scheme through two registered sale deeds dated 2-8-1996 and 24-10-1998. Thus, it is clear that the petitioner ‘Housing Society’ is the owner of the entire extent of 20 acres of land. It is also not in dispute that the petitioner “Housing Society’ submitted layoutplan vide Annexure-G for approval and the same is approved by the ‘BDA’. As could be seen from the said layout plan, the petitioner ‘Housing Society’ has formed layout in accordance with law, rules and regulations by laying roads, CAS, open space, playground etc., including the ‘CAS’ in question. As aforesaid, the main contention of the petitioner is that the petitioner ‘Housing society’ has not handed over the ‘CAS’ in question to the 1st respondent ‘BDA’ as it is not obliged to do so.
7. To examine the correctness or otherwise of the said contention it is just and necessary to look into the provision of Section 32 of the ‘BDA Act’ 1976. Section 32(1) of the ‘Act1 makes it clear that no person shall form or attempt to form any extension or layout for the purpose of constructing buildings thereon without the express sanction in writing of the authority and except in accordance with such conditions as the authority may specify. Further, Section 32(2) of the ‘Act’ mandates that any person intending to form an extension or layout or to make a new private street, shall send to the Commissioner a written application with plans and sections showing the various particulars viz., layout of the sites including streets, or open spaces etc. Section 32(7) of the Act mandates that no person shall form a layout without sanction of or otherwise in conformity with the conditions imposed by the authority. Further, the provisions of Section 32 of the ‘Act’ if read in toto, make it clear that the person who wishes to form the layout shall comply with various statutory requirements for getting the layout approved viz., has to specify the roads, drains, water supply mains and open spaces. At this stage, it is relevant to extract the provision of Section 32(5) of the Act, which reads thus:
“32(5): The authority may require the applicant to deposit, before sanctioning the application, the sums necessary for meeting the expenditure for making roads, side-drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as such applicant may be called upon by the authority, provided the applicant also agrees to transfer the ownership of the roads, drains water supply mains and “open spaces” laid out by him to the authority permanently without claiming any compensation therefor.
The aforesaid provision makes it clear that it is mandatory on the part of the applicant who applies for sanction of layout plan to agree for transfer of ownership of the “roads, drains, water supply mains and open spaces ” laid by him to the authority permanently without claiming any compensation therefor. The same implies that the roads, drains, water supply mains and open spaces laid by the applicant will vest with the authority after their transfer to BDA permanently and no compensation need be paid by the authority to the applicant concerned in that regard.
8. The aforesaid provision sub-serves the public policy inasmuch as, the roads, drains, water supply mains and open spaces are required to be maintained by the ‘BDA’ for better utilization and in the best interest of general public at large. In other words, if the ‘Housing Society’ or the persons who form the layout are allowed to retain the roads, drains, water supply mains and open spaces and if they fail to maintain them in proper manner, ultimate sufferers will be the public at large. In such an event the public will have to approach the Courts of law, every now and then. To avoid such contingencies, the legislature must have thought it fit to enact the said provision i.e. Section 32(5) of the Act.
9. According to the petitioner, the word “open spaces ” found in Section 32(5) of the Act will not include the “Civic Amenities Sites ” and that therefore there is no obligation for the petitioner to transfer the ‘CAS’. Learned Counsel for the petitioner submits that the word ‘open space’ means, only parks, play grounds etc., and not ‘civic amenities sites’,
The word ‘open spaces’ is not defined in “BD A1 Act. However, the word ‘Civic Amenity’ is defined Under Section 2(bb) of the ‘BDA Act’. The word ‘Civic Amenity’ as per the said definition means various things viz., a market, a post office, a telephone exchange, a bank, a fair price shop, a milk booth, a school, a dispensary, a hospital, a pathological laboratory, a maternity home, a child care centre, a library, a gymnasium, a bus stand or a bus depot, a centre of educational, religious, social and cultural activities or for philanthropic service run by a Co-operative Society Registered under the Karnataka Co-operative Societies Act, 1959 etc. Thus, it is clear that “school” comes within the definition of Civic Amenity’.
Though the word ‘Open Space’ is not defined in BDA Act, however, the same is defined in the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act 1985. The provisions of the aforesaid Act are applicable to various cities in Karnataka including Bangalore-City. Section 2(f) of the said Act reads as under:
2(f): ‘Open Space’ means any land on which there are no buildings or of which not more than one twentieth part is covered with buildings and the whole or the remainder of which is used or meant for purposes of recreations, air or light or set apart for civic amenity purposes.
10. As, the word ‘Open Space’ is defined in the statute which is applicable to all the cities including Bangalore City, there is no embargo for the Courts to import/apply the same to the present case, as the aforesaid Act is enacted for the purposes of preservation and regulation of parks, play fields and open space. Thus, in the absence of definition of ‘open space in BDA ‘Act’, it is just and necessary to import the said meaning of ‘open space’ into BDA Act particularly when the provisions of the Karnataka Parks Act 1985 don’t conflict with provisions of BDA Act, particularly in so far as they relate to regulation of open spaces are concerned. The provisions of two enactment’s viz., BDA Act and Karnataka Parks, Play Fields and open spaces (Preservation and Regulation) Act 1985 will have to be read conjointly and harmoniously. If the definition of “Civic Amenity ” found in BDA Act and the definition of ‘Open Space’ found in the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act 1985 are read harmoniously, it would be clear that the ‘open space’ means and includes the land/site earmarked/set apart for civic amenities purposes.
Even otherwise, the word ‘Open Space’ contained in Section 32(5) of the ‘BDA Act’ cannot be construed in the literal sense of term ‘open space’, looking to the entire scheme of the ‘BD A-Act’. In this context, it is relevant to note the provisions of Section 30(2) of the ‘BDA-Act’ which reads as under:
30(2): Any open space including such parks and playgrounds as may be notified by the Government reserved for ventilation in any part of the area under the jurisdiction of the authority as part of any development scheme sanctioned by the Government shall be transferred on completion to the Corporation for maintenance at the expense of the Corporation and shall thereupon vest in the Corporation.
11. The careful reading of the said provision, makes it amply clear that the word ‘open space’ is a broader connotation, which includes the ‘Civic Amenity Site’ also. The words “open space including such parks and playgrounds” found in Section 30(2) of the Act are to be noted significantly in this regard. Thus the word ‘Open Space’ does not mean, only parks and playgrounds but the same includes other places which are left open at the time of formation of layout by the applicant. It is needless to observe that the other open spaces to be left open by the applicant, are for the purposes of beneficial use of public in the form of ‘Civil Amenity’. Thus, this Court is of the considered view that the word ‘open space ‘means and includes the land/site set apart for the purpose of ‘Civic Amenities’ also.
12. Under Section 38-A of the BDA Act and Rule-3 of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989, the BDA alone has exclusive right to deal with Civic Amenities Sites. The authority may, out of the total number of ‘Civic Amenities Sites’ available in any area reserve such number of sites for the purpose of providing civic amenities referred to in sub-clause (i) and (v) of clause (bb) of Section 2 of BDA Act, by the Central Government, the State Government, Corporation or by a body established by the Central Government or the State Government. After making such reservations, the authority may offer remaining Civic Amenities Sites for the purpose of allotment on lease basis to any other institution. It is also clear from the aforesaid provisions that the authority shall not sell or otherwise dispose of any area reserved for parks, play grounds and civil amenities for any other purpose and any disposition so made shall be null and void.
13. Thus, by harmonious and combined reading of provisions of Section 32(5) and 38-A of the Bangalore Development Act, the definition “open space” found in section 2(f) of the Karnataka Parks, Play-Fields and open spaces (Preservation and Regulation) Act 1985 and the definition of “Civic Amenity” found in section 2(bb) of the BDA-Act and Rule-2(b) of the Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules 1989 and other provisions of the BDA Act, this Court will safely conclude that the “Civic Amenity Sites” earmarked in a layout formed by the authority or a site earmarked for civic amenity in a private layout approved by the authority will vest in ‘BDA’, free of cost, subject to the relinquishment by the applicants.
14. It is contended on behalf of BDA that there is no need for formal relinquishment or conveyance by the petitioner in its favour, as the ‘CAS’, roads, drainage, parks etc., will automatically vest with ‘BDA’ by operation of law and that therefore, ‘BDA’ has every right to deal with such ‘CAS’ in accordance with the provisions of ‘BDA Act and Rules framed thereunder. It is further contended that when the petitioner wants the ‘BDA’ to maintain roads, drainages, water main lines, parks etc., without there being any relinquishment deed executed by the petitioner in favour of ‘BDA’, it is strange that the petitioner is now contending that ‘BDA’ cannot maintain the ‘CAS’ without there being relinquishment of the same. Sri. Abdul Khader, Learned Advocate appearing on behalf of BDA, placed reliance upon the judgment passed by the Learned Single Judge of this Court in the case of The Residents of Mico Layout II Stage, Bangalore and Ors. v. J.S.S. Mahavidya Peetha, Mysore and Ors. 1997 (4) Kar. L.J. 442 in support of the aforesaid contentions.
15. To decide the said question as to whether the BDA can deal with the ‘CAS’ in any manner, even without the same being relinquished, it is relevant to note the following provisions of 2(b) of the BDA (Allotment of Civic Amenity Sites) Rules, 1989 and Section 32(5) of the BDA Act once again which read thus:
2(b) “Civic Amenity Site” means a site earmarked for civic amenity in a layout formed by the authority or a site earmarked for civic amenity in a private layout approved by the authority and relinquished to it.”
Section 32(5) : The authority may require the applicant to deposit, before sanctioning the application, the sums necessary for meeting the expenditure for making roads, side-drains, culverts, underground drainage and water supply and lighting and the charges for such other purposes as such applicant may be called upon by the authority, provided the applicant also agrees to transfer the ownership of the roads, drains water supply mains and open spaces laid out by him to the authority permanently without claiming any compensation therefor.
The aforesaid provisions make it mandatory that the person who applies for sanction for formation of layout, should relinquish the open spaces in favour of 1st respondent-authority. The language used in the aforesaid provisions is plain, simple and unambiguous. In view of the aforesaid mandatory provisions, I cannot persuade myself to agree with the argument of Sri Abdul Khader that ‘CAS’ shall vest automatically with the authority immediately after forming the layout. In the absence of such deeming provisions, the ‘CAS’ will not vest automatically with BDA. Under such circumstances, this Court has no other option but to hold that execution of the relinquishment deed is necessary for transfer of ‘CAS’ from petitioner to ‘BDA’.
16. The aforesaid finding of mine is fully supported by the Judgment of the Division Bench of this Court in the case of The Residents of Mico Layout and Ors. v. JSS Maha Vidya Peetha and Ors. Writ Appeal No. 6869/1996 disposed of on 25-3-1998 wherein it is held as under:
Despite agreement and the provisions of Section 32(5) of the B.D.A. Act, the property was not transferred in favour of the 2nd respondent. In the absence of the transfer of said ‘CAS’ in favour of the ‘BDA’, the ‘BDA’ had no authority under law to allot the site 1st respondent. The Learned Single Judge erred in law by holding that no deed for the purpose of transfer was needed. The transfer contemplated under Section 32(5) of the B.D.A. Act is a mandatory provision which when completed authorises the authority to deal with such transferred property in any manner it likes.
Consequently, the Division Bench in the aforesaid Judgment has set aside the Judgment of Learned Single Judge dated 21-6-1996 passed in W.P. No. 26957/1995 reported in 1997 (4) Kar. LJ. 442 cited supra. Thus, the law laid down by the Learned Single in the decision cited supra is no longer a good law in view of the Judgment passed in Writ Appeal No. 6869/1996.
17. In view of the above, the contention of the Learned Counsel for the BDA that it has suo-moto taken possession of the ‘CAS’ in question under the mahazar dated 3-12-2001 cannot be accepted. Admittedly, in this case, there is no relinquishment of ‘CAS’ in question by the petitioner in favour the 1st respondent ‘BDA’. In this view of the matter, the petitioner’s contention that as it has not relinquished the ‘Civic Amenity Site’ in question in favour of the 1st respondent-authority, the 1st respondent cannot claim right over the same and consequently cannot deal with the said ‘CAS’, is to be accepted. Thus, the lease agreement entered into between first and second respondent is liable to be set aside.
18. It is well settled that whenever a private layout is to be formed, approval has to be obtained from the ‘BDA’ as contemplated Under Section 32 of the Act. Section 32(5) of the ‘BDA-Act’ empowers the BDA to insist upon the release of CAS’ in its favour for approval of the layout plan as the same is condition precedent for such approval. Thus, while getting the layout approved, the applicants should agree to transfer the ownership of the roads, drains water supply mains and open spaces laid out by them to the authority permanently without claiming any compensation therefor. Acombined reading of Section 32(5) of the ‘BDA-Act, Rule 2(b) of BDA(Allotment of Civil Amenity Sites) Rules-1989 and provisions of Section 2(f) of the Karnataka Parks, Play-Fields and Open Spaces (Preservation and Regulation) Act, 1985, would make it clear that the ‘CAS’ will have to be relinquished to BDA by the applicants. No option is left to the applicants, but to relinquish the ‘CAS’ in favour of BDA. There is no right vested in the ‘Housing Society’ to reserve the ‘Civic Amenities Sites’ for its purpose, as it is duty of BDA to maintain the said benefits for the benefit of public. Sections 38 and 38A of the “BDA-Act” empower the authority exclusively to deal with ‘Civic Amenities Sites’ in any area or any property vested in or acquired by it under the Act. The grant of 20 acres of land made to petitioners’ Society in the year 1998 is subject to the conditions stipulated in the sale deed vide Annexure-C. The relevant conditions read thus:
6. The purchaser agreed to abide all the conditions in the Government Order HUD 590 MNX 88, dated 23-11-1995.
7. After execution of sale deed the purchaser shall execute relinquishment deed as per Annexure-I.
ANNEXURE-I
SI. No. Block Measurement Total Purpose
1. R (400+360) X240 91,200 Civil Amenity
2. S 320X40 12,800 Park
3. T (620 + 640) X 140 88,200 Park
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2
4. U (320+350) X (520+542) 1,77,885 Civil Amenity
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2 2
5. Roads 1,01,592.26 Roads
Total 4,71,677.26 Sq. Ft.
As could be seen from the conditions imposed in sale deed, the petitioner should leave certain portions of the property for roads, civic amenities purposes and parks etc., and such properties/sites should be relinquished in favour of the BD A.
19. The word ‘Civic Amenity’ broadly means that the amenity meant and required by public at large for the purpose of better enjoyment and for making their life happier by living in the locality. The educational institution is necessary, as it is one of the fundamental facility required to be provided to every citizen by the Government or statutory authority. In the present case, the petitioners’ ‘Housing Society’ itself has agreed, as the same is mandatory to do so, to leave certain space of the area to be used by the inhabitants of the locality for the common purpose of civic amenity. The documentary evidence which has come on record in the form of Sale deed and the layout plan produced by the petitioner’s Housing Society’ conclusively proves that the ‘CAS’ in question was left in the scheme to be used as ‘Civic Amenity Site’ for the use of public at large. Having taken advantage of selling the plots in a developed colony which were purchased by the inhabitants with an understanding that the civic amenity will be provided to the residents of the locality which is essential for them, the petitioner cannot be now permitted to turn around to claim the land left in the scheme for being used for ‘Civil Amenity’, as the property belonging to Co-operative Society.
20. The contention of petitioner that no adequate publicity was given by the 1st respondent authority while allotting the ‘Civic Amenity Site’ in question in favour of the 2nd respondent Trust’ also cannot be sustained inasmuch as, the Learned Counsel appearing for the 1st respondent authority has brought to the notice of the Court that the concerned notification is published in the daily news papers, which have wider circulation in Bangalore City as per the rules. Thus the records disclose that due publicity is given by the 1st respondent by publishing the notification calling for the applications for allotment of ‘CAS’ on lease basis.
21. From the above discussion, it is clear that the petitioner’s society is bound to hand over the ‘CAS’ in question in favour of the 1st respondent-authority by way of relinquishment, as agreed by it while getting the sale deed executed in its favour from the BDA. Added to it, that is the requirement of law also, as contemplated Under Section 32(5) of the Act. Thus it is necessary that the petitioner be directed to comply with the said contractual and statutory obligations. However, in the case on hand, no such relinquishment deed is executed by the petitioner in favour of the BDA. But the B.D.A., suo-moto took possession of the ‘CAS’ in question under mahazar dated 3-12-2001 and leased the same in favour of the 2nd respondent Trust for construction of school building. As the ‘CAS’ in question is not relinquished by the petitioner in favour of 1st respondent authority, it cannot and consequently should not have leased the same in favour of the 2nd respondent-Trust. It is also not in dispute that in pursuance of the lease deed executed by the BDA and after taking possession, the 2nd respondent-Trust has already started construction of school building by investing huge amounts. In view of my finding that the ‘CAS’ in question was leased by the 1st respondent in favour of the 2nd respondent for a period of 30 years on receipt of adequate amount of consideration and after due publicity as required by law, I deem it proper to safeguard the interests of the BDA as well as the 2nd respondent-Trust which is constructing the school building, by said process, the loss of public property will be prevented. In view of the same, the following order is made.
(a) The decision taken by the BDA dated 3 -10-2002 to execute the lease deed in respect of Civic Amenity Site situated in Bhavani House Building Co-operative Society, Banashankari-III Stage, Bangalore in favour of the 2nd respondent is quashed.
(b) The petitioner is directed to relinquish the Civic Amenity Site situated in Bhavani House Building Co-operative Society Layout, Banashankari-III Stage, Bangalore as per the terms of the sale deed dated 24-10-1998 (Vide Annexure-C) within two months from today in favour of BDA.
(c) The 1st respondent BDA shall thereafter lease the said schedule ‘CAS’ in favour of the 2nd respondent-Trust by executing fresh lease deed without any delay, on the same terms and conditions as contained in the lease deed dated 27-2-2003 vide Annexure-K.
The writ petition is disposed of accordingly.