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'REPORTABLE' IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 10747 OF 2013 PURUSHOTHAM                                   ... Appellant

VERSUS STATE OF KARNATAKA & ORS.                     ... Respondents WITH CIVIL APPEAL NO. 10748 OF 2013 CIVIL APPEAL NO. 10749 OF 2013 CIVIL APPEAL NO. 10750 OF 2013

J U D G M E N T KURIAN, J.

The  appellants  are  aggrieved  by  the  common  judgment  dated 05.09.2011 in Writ Petition No. 5428 of 2006 and Writ  Petition  No.  5173  of  2006  on  the  file  of  High  Court  of  Karnataka at Bangalore.  The High Court took the view that  Civic Amenity Site No. 2 has to be utilised only for the  purpose for which it was earmarked, viz., for a Bank and,  hence, the allotment of the same by the Bangalore Development  Authority (hereinafter referred to as 'BDA') to be used as a  petrol retail outlet was set aside being in violation of  Section 38A of the Bangalore Development Authority Act, 1976  (hereinafter referred to as 'Act').  The respondents in the  writ  petitions,  aggrieved,  pursued  the  matter  before  this  Court.   

The  appeals  were  initially  dismissed  by  judgment  in  'Purushottam v. State of Karnataka' dated 29.11.2013 reported  

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in 2014(3)SCC 721.  Having noticed that there were factual  mistakes in the judgment of the High Court which was upheld  by this Court, by a detailed order dated 10.09.2015, the  review petitions were allowed and the judgment referred to  above was recalled.

For the purpose of ready reference we shall reproduce  the order passed by this Court on 10.09.2015 as such: -

Delay in filing Review Petition No. 532 of  2014 is condoned.

These review petitions are preferred seeking  review of our judgment dated 29.11.2013 passed in  Civil Appeal No. 10747 of 2013, Civil Appeal No.  10748  of  2013,  Civil  Appeal  No.  10749  and  Civil  Appeal No. 10750 of 2013.

The  aforesaid  appeals  were  filed  impugning  the judgment of Karnataka High Court rendered in  Writ Petition No. 5428 of 2006 and Writ Petition  No. 5173 of 2006.  Those writ petitions were filed  by way of Public Interest Litigation under Article  226 of the Constitution of India challenging the  allotment  of  civic  amenity  site  No.  2  to  Bharat  Petroleum Corporation for establishment of a petrol  pump  and  seeking  a  declaration  that  the  said  allotment be declared null and void.   

During the course of hearing, on the basis of  a document, it was noticed that though this site  was initially earmarked for a 'Park', thereafter,  the user was changed to that for a 'Bank'.  On the  aforesaid premise that the site was earmarked for a  'Bank', the Court proceeded to decide as to whether  it could be allotted for a petrol pump and answered  the said question in the negative.  On that basis,  writ petitions were allowed and the allotment made  in favour of Bharat Petroleum Corporation Limited  was set aside.

We  may  notice  here  that,  in  the  meantime,  Bharat Petroleum Corporation Limited had allotted  this  site  to  Smt.  Ramadevi  for  establishment  of  petrol pump.  Smt. Ramadevi and her husband Shri  Purushottam  were,  accordingly,  also  arrayed  as  respondents in those writ petitions.  Two Appeals  

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were filed by Bharat Petroleum Corporation Limited  and appeals were also filed by Smt. Ramadevi and  Shri Purushottam.   

These  appeals,  as  mentioned  above,  were  decided by the impugned judgment dated 29.11.2013  (which is under review) accepting the reasons given  by the High Court resulting into the dismissal of  the said appeals.  In these three review petitions,  which  are  again  preferred  by  Bharat  Petroleum  Corporation, Smt. Ramadevi and Shri Purushottam, it  is  sought  to  be  argued  that  the  High  Court  was  misled and the site in question was not earmarked  for 'Bank' at all.  Certain documents are produced  in support of this submission that the site was, in  fact,  earmarked  for  civic  amenities  and  it  is  sought  to  be  shown  that  civil  amenities  include  petrol pump.  The documents which are produced have  been  obtained  from  the  Bangalore  Development  Authority under the Right to Information Act.

Since  these  are  official  documents,  their  genuineness,  prima  facie,  cannot  be  doubted.  Further,  it  would  be  in  the  interest  of  justice  that  implication/effect  of  these  documents  is  considered.  For these reasons, the judgment dated  29.11.2013 requires to be recalled and the matter  needs to be examined afresh in the light of these  documents.   These  review  petitions  are,  accordingly, allowed recalling the judgment dated  29.11.2013 and the appeals are restored to their  original numbers, viz., Civil Appeal No. 10747 of  2013,  Civil  Appeal  Nos.  10749-10750  of  2013  and  Civil Appeal No. 10748 of 2013.  

We may mention that we had started hearing,  with  the  consent  of  the  learned  counsel  for  the  parties,  the  appeals  afresh  on  merits  as  well.  However,  after  some  arguments,  learned  counsel  appearing for Respondent Nos. 4 to 14 requests for  some time in order to verify these documents.

At  request,  liberty  is  granted  to  Bharat  Petroleum  Corporation  Limited  to  file  additional  affidavit within two weeks.

Reply thereto, shall be filed by Respondent  Nos. 4 to 14 within two weeks thereafter.

The civil appeals shall be listed after four  weeks.

Interim orders to continue, in the meantime.”  

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Today when the matter was taken up, learned counsel  appearing for the respondents, apparently having gone through  the  documents,  submits  that  the  appellants  have  already  submitted  documents  referred  to  in  the  Review  Petitions  before the High Court and have sought for a review before the  High Court itself and, hence, the matter be remanded to the  High Court.   

Shri Mukul Rohatgi, learned Attorney General appearing  for  the  Bharat  Petroleum  Corporation  and  learned  senior  counsel appearing for other appellants submit that since the  errors are apparent on the face of the record and which have  been noted from the records already available before this  Court itself at the time of hearing of the review petition,  the matter needs to be given a quietus before this Court  particularly in view of the judgment rendered by this Court.

Be that as it may, grievance essentially pertains to  the dispute as to whether the site No. 2 earmarked for civic  amenity in a Modified Layout Plan of Scheme between Hennur  Road and Bana Swadi Road, Bangalore, is for a Bank or any  other civic amenity.

The Modified Layout Plan was available before the High  Court as produced by the BDA along with their statement and  marked as Annexure R2.  In any case, the learned counsel for  BDA submits that the Layout Plan produced as Annexure R4 with  

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a covering letter dated 21.12.2013 in the Review Petition is  the authenticated copy of the Plan and it is not disputed  also.   

Our attention has been invited to the Layout Plan and  it is seen that in Plot No. 19 [CA2] there is no earmarked  purpose whereas it is plot No. 20 that is earmarked to be  used as Bank and plot No. 21 for P&T.  Therefore, the whole  basis of the contention of the writ petitioners before the  High  Court  is  totally  shaken  and  the  same  is  wholly  misconceived on facts.  The petrol outlet is in Plot No. 19.

Once it is seen that against the disputed plot No. 19,  no  purpose  as  such  is  shown,  the  BDA  is  well  within  jurisdiction to allot it for any civic amenity.  There is no  dispute that petrol pump is a civic amenity coming under the  definition of civic amenity in Section 2(bb)(vi) of the Act  read with the Notification dated 29.08.1990.  Under Section  38A of the Act, the only restriction cast upon the Authority  is that it shall not sell or otherwise dispose of any area  reserved  for  public  parks  and  playgrounds  and  civic  amenities,  for  any  other  purpose  and  if  so  made,  such  disposition would be null and void.

Once it is seen from the Notification dated 29.08.1990  that petrol pump is a civic amenity duly notified in terms of  Section 2(bb) of the Act, nothing prevents the Authority from  allotting it for being used as a notified civic amenity.  

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Therefore, it has become unnecessary to consider any other  point.

In that view of the matter, there is no merit in the  writ  petitions  filed  before  the  High  Court.   They  are,  accordingly, dismissed.  The civil appeals are allowed as  above.

No costs.    

......................, J. [ KURIAN JOSEPH ]

......................, J. [ ROHINTON FALI NARIMAN ]

New Delhi; December 02, 2015.

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