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Nal Layout Residents’ … vs Bangalore Development Authority … on 1 February, 2005

Karnataka High Court
Nal Layout Residents’ … vs Bangalore Development Authority … on 1 February, 2005
Equivalent citations: 2005 (3) KarLJ 86
Author: R Gururajan
Bench: R Gururajan

ORDER

R. Gururajan, J.

1. NAL Layout Residents’ Association and NAL Employees’ Co-operative Housing Society Limited, are before me seeking a direction, directing the BDA to revoke the allotment of school and playground area
in the layout made by National Aerospace Laboratories Employees’ Co-operative Housing Society Limited formed in Sy. Nos. 50, 51 and 52 of Tavarekere Village, Bangalore South Taluk and seek a further direction that the illegal construction coming up in the said school and playground area is to be removed forthwith and the school and playground area be restored to its original position as on 11-9-1996.

2. The 1st petitioner is Association and the 2nd petitioner is a Society. Employees of National Aeronautical Laboratories in Order to acquire sites in Bangalore City made attempts through NAL Employees’ Co-operative Housing Society, to purchase suitable land in Bangalore to make a layout of residential sites on such land and then allotted the sites to its members after negotiations with BDA. The employees were successful in acquiring by means of purchase from BDA 8 acres of land in Sy. Nos. 50, 51 and 52 of Tavarekere Village. After negotiations with BDA reached the final stage a sale deed was executed in 1985. As per BDA rules certain portion of the layout area has to be reserved for civic amenities such as school, playground, hospital, post-office, police station, electricity office, park, etc. Accordingly, relinquishment deed dated 11-9-1996 was executed by the Society in favour of BDA and the same was registered. Annexure-D is the relinquishment deed. Annexure-E is the layout plan approved by the BDA in which also the school and playground area is indicated in red colour. After the civic amenity area in a layout is surrendered by a Housing Society it becomes statutory obligation on the part of the BDA to maintain such civic amenity area as such throughout. Petitioner association came across construction on the civic amenity area and on enquiry they learnt that the same has been granted to the 2nd respondent. Petitioner states that the said grant is unsustainable in law. Petitioner further says that when the area is earmarked for school and playground the allotment of the same for purposes other than for which it is reserved in the layout plan is entirely illegal. If a commercial complex is allowed to come up in the layout it would choke and block the electricity, water supply and sewage connections. Petitioners under these circumstances are according to the petition averments obliged to seek appropriate directions.

3. Notice was issued. Respondents entered appearance.

4. The contesting respondents would say in the objection that in the NAL Layout most of the employees of the NAL who had obtained the allotment of sites from the society have sold the sites. It is only third parties who were in no way connected with NAT, are residing in the layout. A civic amenity site allotted to 2nd respondent is not the playground but an independent adjacent area.

5. 2nd respondent states that a civic amenity site in NAL-HBCS, BTM I Stage, I Phase, Bangalore, measuring East to West 27.43 mtrs. and North to South 45.71 mtrs. was allotted by the respondent by virtue of a registered lease to the Welfare Trust for a period of 30 years in terms of Annexure-R1. It was made under Special orders of the Government and the Government has power to do so under the B.D.A. Act. They have also filed the registered Trust Deed as Annexure-R2 granted by the Commissioner. They are in possession of the amenity site. Possession certificate is filed under Annexure-R5. They have also paid remittance to the BDA in terms of the documents filed along with the statement. They want the petition to be dismissed.

6. BDA has entered appearance. BDA says in its statement of objection that civic amenity sites formed in a layout has to be surrendered to the BDA. Accordingly, the same was surrendered by NAL Employees’ Co-operative Housing Society in favour of the BDA on 11-9-1996. It is also stated that the writ petition is to be dismissed on the ground of delay and laches since it is filed after 2 years in the matter. BDA says that it has not violated any Rule or provisions of the Act while allotting the civic amenity site on lease. State Government has exercised its power under Section 38-A of the Act to allow site on lease. The definition of civic amenity site includes centre for educational, social and cultural activities run by the Trust. The 2nd respondent-Trust established for the purpose of running educational institutions for the benefit of public in general and to serve Kashmiries in particular who are displaced and to encourage Kashmiri culture is eligible for allotment.

7. Matter is heard for final disposal. Sri Chandra Shekar, learned Counsel appearing for the petitioners would say that they have surrendered certain lands for the purpose of civic amenities. After surrender, those lands have been granted to the 2nd respondent contrary to the BDA Rules and Regulations. He argued that the BDA has violated BDA (Allotment of Civic Amenity Sites) Rules, 1989, in particular Rule 3 of the Rules. Learned Counsel says that there was no publicity in terms of Rule 3(3) of the Rules. He says that the entire action on the part of the respondents runs counter and that he wants interference by this Court.

8. Per contra, the learned Counsel for the respondents has invited my attention to the delay in question and also they say that no legal right as such is violated for grant of amenities in the present case. They further say that as a matter of fact, allotment is made by the Government in exercise of its powers under the Act. They want the petition to be dismissed.

9. After hearing, I have carefully perused the material on record.

10. Petitioners admittedly have surrendered civic amenity in terms of relinquishment deed Annexure-D. It is stated therein, that the 1st party viz., National Aeronautical Laboratory Employees’ Co-operative Housing Society Limited has agreed to hand over the civic amenity sites free of cost through a deed, including parks, playgrounds, etc., with water supply and sewage mains, street lights, etc., on completion of private layout works to the BDA for being handed over the concerned local bodies. The said deed is registered in terms of the material available on record. It is also an admitted fact that the State Government while exercising its power under Section 38-A has chosen to provide a relief to the contesting respondents in terms of the powers under Section 38-A of the BDA Act. The civic amenity site lease agreement is at Annexure-R1. The said agreement would show that the 2nd respondent applied for lease of civic amenity site to the lessor for the benefit and use of the said site for the construction of Kashmir Bhavan for a specific purpose mentioned herein. BDA agreed to lease the schedule property to the lessee vide. Government Order dated 18-5-2001 under Section 38-A(l) of the BDA Act mentioned herein. The said agreement provided for 30 years lease. A sum of Rs. 14,95,808/- was determined in terms of the deed conditions. The 2nd respondent also registered as I see from the material on record. It has been granted possession on 30-7-2002 in terms of the Government Order. They have made over remittance in terms of Annexure-R6. BDA remittance challan is at Annexure-R7. They have also paid the necessary amount to the Revenue Department. They have also made over certain payment to the BDA in the matter. Now, when they are halfway through the construction, the present petition is filed.

11. The only point that requires my consideration is whether the grant of the site in question to contesting respondents runs counter to the BDA Regulations or the Rules framed therein.

12. Admittedly, Government has chosen to make an Order under Section 38-A, dated 18-5-2001. Section 38-A provides for grant of area reserved for civic amenity sites. Authority is defined to mean ‘the Bangalore Development Authority’. Power of the Government is not questioned in the case on hand. When the Government has chosen to issue an Order dated 18-5-2001 the BDA has no option but to obey the same. It was in terms of the Order dated 18-5-2001 the BDA has chosen to provide a lease in favour of the 2nd respondent. Admittedly, the Government Order dated 18-5-2001 is not challenged by the petitioners.

13. Petitioners argument is that the said Order is not made available to them. Objection statement has been filed as early as in August 2004. Nothing prevented the petitioners from obtaining a copy of the Order for the purpose of challenge. Petitioners have not chosen to raise their little finger by way of challenge to the Order dated 18-5-2001. So long as this Order is available on record, it is not possible for the petitioners to seek any relief at the hands of this Court. In the circumstances, petitioners cannot be granted any relief in the matter.

14. Even otherwise, petitioners cannot get any relief in the case on hand in the given circumstances. Admittedly, petitioners have chosen to relinquish the lands in favour of the BDA. BDA in the Government Order under Section 38-A has chosen to provide a lease agreement. The Government Order is dated 18-5-2001. Lease agreement was entered into on 16th July, 2002. We are in the year 2005. Petition is filed only in the year 2004. There is roughly about 2 years delay in the matter. Courts have considered delay in the matter of challenge of grant of sites. Supreme Court has considered delay in the case of Chairman and Managing Director, BPL Limited v. S. P. Gururaja and Ors. In the said case, Supreme Court noticed that a delay of one year conies in the way of the petitioner. Supreme Court held that in such circumstances, delay had defeated equity. Supreme Court also noticed that the allottee had taken possession and had made sufficient investment in the matter. In these circumstances, Supreme Court rejected the writ petition. The present set of facts would attract Gururaja’s case. Grant of sites in 2001 has resulted in a lease agreement of 2002, when the construction is halfway through, at this stage, the present writ petition is filed. Delay of two years in the given case defeats the petitioner’s right in terms of the judgment of the Supreme Court.

15. I must also notice a serious argument advanced by Sri Chandra Shekar. Learned Counsel repeatedly invited my attention to Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989. Rule 3 of the Rules provides for an offer of civic amenity sites for allotment. It provides for a power to the authorities to make available in any area reserve such number of sites for the purpose of providing civic amenity referred to in Sub-clauses (i) and (v) of Clause (bb) of Section 2, by the Central Government, the State Government, Corporation or by a body established by the Central Government or the State Government. Sub-rule (2) of Rule 3 says that after making reservation under Sub-rule (1) the Authority may, subject to Section 38-A and general or special orders of the Government and having regard to the particular type of civic amenity required to be provided in any locality offer such of the remaining civic amenity sites for the purpose of allotment on lease basis to any institution. The argument of Sri Chandra Shekar is that publicity was not given and that therefore, the grant of civic amenity runs counter to Rule 3 of the Rules. I am afraid that this argument is not available to the petitioners. A careful reading of Rule 3 would show that Rule 3(2) is subject to Section 38-A and general or special orders of the Government in the matter. When there is a standing Order of the Government in the matter of lease of the land to BDA the question of violating Rule 3 does not arise. Rule 3 would apply to only to such cases which are not governed under Section 38-A of the Act. Therefore, this argument is also not available to the petitioner.

16. I must notice at this stage that the petitioners are seeking a mandamus. Law is well-settled that a mandamus can be issued for the purpose of directing an authority to comply with a public duty or public responsibility cast in terms of the statute. Petitioner has to show existence of a legal right in the matter of performance of legal duty by public authority in the matter. No such right or no such duty is shown to me by the petitioner. In the circumstances, petitioners cannot seek a mandamus.

17. Looking from any angle, no case as such is made out. Accordingly, the petitions are rejected. No costs.

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