Page 1

ITEM NO.1B               COURT NO.9             SECTION IVA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                   Civil Appeal No.10747/2013 @ Petition(s) for Special Leave to Appeal (Civil) No(s).31690/2011

PURUSHOTHAM                                       Petitioner(s)

                VERSUS

STATE OF KARNATAKA & ORS.                         Respondent(s)

WITH Civil Appeal No.10748/2013 @ SLP(C) NO. 31695 of 2011

Civil Appeal No.10749/2013 @ SLP(C) NO. 33184 of 2011

Civil Appeal No.10750/2013 @ SLP(C) NO. 33319 of 2011

Date: 29/11/2013  These matters were called on for pronouncement of      Judgment today.

For Petitioner(s)                      Dr. Sushil Balwada,Adv.

Mr. Rajeev Mishra, Adv.                      Mr. Sanand Ramakrishnan For Respondent(s)                      Mr. Ankur S. Kulkarni,Adv.                      Ms. Anitha Shenoy ,Adv                      Mr. Rajesh Mahale ,Adv

Mr. Rajeev Mishra, Adv.                      Mr. Sanand Ramakrishnan ,Adv

          UPON hearing counsel the Court made the following                                O R D E R  

Leave granted.

Hon'ble  Mr.  Justice  Surinder  Singh  Nijjar  

pronounced  the  Judgment  of  the  Bench  comprising  His  

Lordship and Hon'ble Mr. Justice A.K. Sikri.

For  the  reasons  recorded  in  the  signed  

Reportable Judgment, the Appeals are dismissed.  

(Vishal Anand) Court Master

(Indu Bala Kapur) Court Master

(Signed Reportable Judgment is placed on the file)

Page 2

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.10747 OF 2013 (Arising out of SLP (C) No. 31690 of 2011)

Purushottam                                            …Appellant  

VERSUS

State of Karnataka & Ors.                        ...Respondents

With

Civil Appeal No.10748 of 2013 (Arising out of SLP (C)  No. 31695 of 2011)

Mrs. Ramadevi                                          …Appellant  

VERSUS

Bangalore Development Authority & Ors. ...Respondents

With

Civil Appeal No.10749 of 2013 (Arising out of SLP (C)  No. 33184 of 2011)

Bharat Petroleum Corporation Limited     …Appellant  

VERSUS

Subramanya & Ors.                                  ...Respondents

With

Page 3

Civil Appeal No.10750 of 2013 (Arising out of SLP (C) No. 33319 of 2011)

Bharat Petroleum Corporation Limited    …Appellant  

VERSUS

Dr. Harish V. Iyer & Ors.                          ...Respondents

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. Leave granted.

2. These four appeals arising out of SLP (C) No.31690 of 2011,  

SLP (C) No.31695 of 2011, SLP (C) No.33184 of 2011 and SLP  

(C)  No.33319  of  2011,  impugn  the  judgment  of  a  Division  

Bench of Karnataka High Court rendered in Writ Petition No.  

5428 of 2006 (BDA-PIL), and Writ Petition No. 5173 of 2006  

(GM-RES/PIL),  whereby  the  High  Court  has  declared  the  

allotment  of  civic  amenity  site  no.  2  to  Bharat  Petroleum  

Corporation (respondent No. 3) for establishment of a petrol  

pump, null  and void.  The writ petitions have been allowed.  

The  allotment  dated  4th August,  2005  made  in  favour  of  

respondent No. 3 has been set aside.  

3. The facts as narrated in C.A. No. 10747 of 2013 arising out of

Page 4

SLP (C) No. 31690 of 2011 are as under:-

• On 29th August,  1990 a Notification was issued by the  

State of Karnataka Government under Section 2bb(vi) of  

the  Bangalore  Development  Authority  Act,  1976  

(hereinafter referred to as “BDA Act, 1976”) to the effect  

that  the  amenities  such  as  liquefied  petroleum  gas  

godowns, retail domestic fuel depots, petrol retail outlets  

are  the  “civic  amenities”  for  the  purposes  of  the  

aforesaid Act.   

• Thereafter,  the  State  Government  issued  another  

Notification  on  29th April,  1994,  inviting  objections  or  

suggestions to the Revised Comprehensive Development  

Plan  of  Bangalore  City  Planning  Area,  prepared  under  

Karnataka  Town  and  Country  Planning  Act,  1961,  

(Karnataka Act 11 of 1963), which had been provisionally  

approved by the Government.   

• On  5th January,  1995,  Site  No.2  is  reserved  for  civic  

amenities (hereinafter referred to as “CA Site No.2”)

• On 31st January, 2000, Bangalore Development Authority  

(hereinafter referred to as “BDA”) passed Resolution No.

Page 5

28  of  2000  empowering  the  Chairman  or  the  

Commissioner  to  allot  Civil  Amenity  Site  to  any  

Government  Body,  State  or  Central  Government  

undertaking.   

• On 1st January, 2001, BDA allotted CA Site No.2 and 3 in  

HRBR Layout III Block each measuring 2195.35 sq. mtrs.  

and 629.18 sq. mtrs. in favour of Bangalore Water Supply  

and  Sewerage  Board  (hereinafter  referred  to  as  

“BWSSB”)  on  lease  for  a  period  of  30  years  for  the  

purpose of service station and pump house.  

• On  28th March,  2002,  a  detailed  representation  was  

submitted  by  one  Mr.  Padmanabha  Reddy  on  the  

subject : Requisition for Allotment of Civic Amenity Site  

No.2 & 3 in HRBR UI Block, Bangalore – 43 as park.  It  

was pointed out in this representation that the III Block of  

the  HRBR  Layout  is  a  residential  layout,  with  homes  

situated,  chock-a-block,  with  absolutely  no  ventilation  

space.  It was pointed out that in these circumstances,  

the provision for a park/ventilation space is a crying-need

Page 6

of the locality.  The representation also mentions that the  

objectors had an opportunity to go through the Revised  

Comprehensive  Development  Plan  –  2011  (RCDP)  

pertaining to District No.7, which clearly showed that, a  

squarish block of land,  situated on the western side of  

Civic  Amenity  site  wherein  the  BWSSB  has  already  

housed  the  Twin  Ground  Level  reservoirs  had  been  

earmarked for a park. The other surprise in store in the  

RCDP was the earmarking of CA Site No.2, which was the  

bone  of  contention,  as  Commercial  Area/Zone.   It  is  

pointed out that in reality, much before 1995, when the  

RCDP had allegedly been finalized, the BDA had already  

accomplished the task of converting this  squarish block  

of  land into  residential  sites  and  either  allotted  or  

auctioned such sites.  The land had been clearly shown  

as earmarked for a park or a playground.  Another similar  

block of land, which was also earmarked to be developed  

as a park has continued to be used as a burial ground.  

The representationist also brought to the notice of the  

BDA sentiments expressed by this Court in the case of  

Bangalore Medical Trust Vs. B.S. Muddappa & Ors.  1    

1  (1991`) 4 SCC 54

Page 7

Particular  attention  of  the  authorities  was  drawn  to  

Paragraphs  18,  19,  24,  25,  27,  37  and  48  with  the  

comment  that  the  observations made in  the  aforesaid  

paragraphs reflect the aspirations of the respondent Nos.  

4 to 14 (petitioners in the High Court).   Legally it  was  

stated that the action of the BDA is contrary to Section  

38A(2) of the BDA Act, 1976.  It  was ultimately stated  

that  the  land  on  which,  now,  reservoirs  had  been  

developed  was  beyond  “redemption  and  resumption”.  

The other area earmarked for the park can not be used  

as a park since it has already been used as a graveyard.  

Their only intention was to save the remaining part which  

has now been allotted for the use as the petrol pump.

• On 9th February, 2005, the State Government passed an  

order for continuation of revised CDP 1995 till 2015.   

• On  30th June,  2005,  Bharat  Petroleum  Corporation  

(respondent  No.3)  requested  BDA  to  allot  land  for  

development of a retail outlet.   

• On 4th August, 2005, BDA allotted CA Site No.2 in favour  

of respondent No.3.  

Page 8

• Thereafter, on 7th October, 2005, the lease deed was duly  

executed between BDA and respondent No.3 for a period  

of 30 years.  Dealership licence was granted in favour of  

wife of the appellant by respondent No.3 on 4th February,  

2006.   

• Thereafter on 21st February, 2006, BDA has approved the  

plan  for  establishment  of  petrol  pump  in  favour  of  

respondent No.3.  Aggrieved by the aforesaid action, Writ  

Petition No. 5428 of 2006 and others were filed in public  

interest  to  challenge  the  decision  of  BDA  

dated 21st February,  2006 with a  prayer  to  quash  the  

allotment of CA Site No.2 in favour of respondent No.3 for  

establishing a petrol pump and to convert the same to a  

park for the elderly and a playground for the young.   

4. By the impugned judgment, the Division Bench of Karnataka  

High Court on interpretation of Section 38A concluded that the  

allotment was in violation of Section 38A sub-section (2).  The  

High Court has concluded that CA Site No.2 at the time of its  

allotment  to  respondent  No.3 was expressly  earmarked  for  

use as “bank”.  Therefore, in terms of Section 38A of the BDA  

Act,  1976  could  not  have  been  leased,  sold  or  otherwise

Page 9

transferred for a purpose other than the one  for which such  

area  is  reserved.  Since  the  site  in  question  was  

earmarked/reserved  for  “bank”,  it  could  not  have  been  

allotted for use as a petrol pump. The High Court also held  

that the allotment of the site was null and void as it was not in  

consonance of Section 38A sub-section (2).  The High Court  

further observed that even though both “bank” and “petrol  

pump” are civic amenities within the meaning of Section 2(bb)  

of the BDA Act, 1976, yet the mandate of Section 38A is clear  

and unambiguous.  It is for the  very civic amenity, for which  

the area is reserved, for which it has to be put to use.  

5. We have heard the learned counsel for the parties.  

6. It is submitted by the learned counsel that the High Court has  

erred  in  holding  that  any  area  of  particular  civic  amenity  

cannot be subsequently changed to another user which also  

falls within the definition of a civic amenity.  It is submitted by  

the  learned senior  counsel  appearing  for  all  the  appellants  

that the High Court has failed to appreciate that the sites still  

remain allotted to a civic amenity.  Merely, because the user  

has been changed from public park to bank and now to petrol  

pump would not violate the provisions contained in  Section

Page 10

38A(1) and (2).  It is submitted that since the Notification was  

duly  issued  that  petrol  pump would  be  a  civic  amenity as  

provided  under  Section  2(bb)(vi)  of  the  Act,  there  was  no  

violation of Section 38A(2).   

7. Learned counsel for the appellants have submitted that in fact  

there is no resolution passed by the BDA to show that the site  

in  question  has  been  earmarked  for  a  bank.   It  is  further  

submitted that the change of purpose or user for a particular  

piece of land as a civic amenity is permissible under Rule 3(1)  

of the Bangalore Development Authority (Civic Amenity Site)  

Allotment Rules, 1989 (hereinafter referred to as “BDAA Rules,  

1989”) as amended.  According to the learned senior counsel,  

once the land is reserved as a civic amenity and allotted in  

favour of a Government department or statutory authority of  

the  Central  Government,  the  BDA  Rules,  1989  has  no  

application.  It was further submitted that the Division Bench  

has erred in distinguishing the earlier judgment of the Division  

Bench  of  the  same  Court  Aicoboo  Nagar  Residents  

Welfare Association & Anr. Vs.  Bangalore Development  

Authority, Bangalore & Anr.  2   in which it has been clearly  

laid  down that  “the  use  of  site  as  a  civic  amenity  for  the  

2  ILR 2002 Kar. 4705

Page 11

distribution of petroleum products also would come within the  

scope of civic amenity”.  

8. Learned  counsel  appearing  for  the  BDA  and  the  State  of  

Karnataka  have  supported  the  case  pleaded  by  the  

appellants. Learned counsel appearing for respondent Nos. 4  

to 14, however, submitted that the High Court has correctly  

interpreted Section 38A(1) and (2) that any area reserved for  

a particular civic amenity cannot be diverted to any other civic  

amenity on the ground that civic amenity is a general term.  

According to the learned counsel, the judgment of the High  

Court is in consonance with the law laid down by this Court in  

the  case  of  B.S.  Muddappa  (supra).   The  aforesaid  

judgment  has  been  subsequently  followed by  this  Court  in  

R.K. Mittal & Ors. Vs. State of Uttar Pradesh & Ors.  3    It  

has been submitted that in view of the law declared by this  

Court, the impugned judgment of the High Court does not call  

for any interference.

9. We have considered the  submissions made by the  learned  

counsel for the parties.

10. In our opinion, it is no longer necessary for us to consider  

the issues raised by the appellants on first principle, as the  

3  (2012) 2 SCC 232

Page 12

issue is no longer res integra.  In the case of B.S. Muddappa  

(supra), this Court examined the entire issue wherein, it has  

been  held  “that  the  legislative  intent  of  the  Bangalore  

Development Authority (Amendment)  Act,  1991 (hereinafter  

referred to as “BDA (Amendment)  Act,  1991”),  which came  

into force w.e.f. 16th January, 1991 is to prevent the diversion  

of the user of an area reserved for a public park or playground  

or civic amenity to another user.   

11. Original  Section  38A  of  the  BDA  Act,  1976  has  been  

substituted  with  the  present  Section  38A  w.e.f.  21st April,  

1984, which reads as under:-

“‘38-A. 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.”

12. Interpreting the aforesaid provision, this Court has held as

Page 13

under:-

“This new Section 38-A, as clarified in the Statement of  Objects  and  Reasons  and  in  the  Explanatory  Statement attached to L.A. Bill 6 of 1991, removed the  prohibition against lease or sale or any other transfer  of any area reserved for a civic amenity, provided the  transfer is for the same purpose for which the area has  been reserved. This means that once an area has been  stamped  with  the  character  of  a  particular  civic  amenity  by  reservation  of  that  area  for  purpose,  it  cannot be diverted to any other use even when it is  transferred  to  another  party.  The  rationale  of  this  restriction is that the scheme once sanctioned by the  government  must  operate universally  and the areas  allocated for particular objects must not be diverted to  other objects. This means that a site for a school or  hospital  or  any  other  civic  amenity  must  remain  reserved for that purpose, although the site itself may  change hands. This is the purpose of sub-section (1) of  Section  38-A  as  now substituted.  Sub-section  (2)  of  Section  38-A,  on  the  other  hand,  emphasises  the  conceptual  distinction  between  ‘public  parks  and  playgrounds’  forming  one  category  of  ‘space’  and  ‘civic  amenities’  forming  another  category  of  sites.  While public parks and playgrounds cannot be parted  with  by  the  BDA  for  transfer  to  private  hands  by  reason  of  their  statutory  dedication  to  the  general  public, other areas reserved for civic amenities may be  transferred to private parties for the specific purposes  for  which  those  areas  are  reserved.  There  is  no  prohibition, as such, against transfer of open spaces  reserved for public parks or playgrounds, whether or  not  for  consideration,  but  the  transfer  is  limited  to  public  authorities  and  their  user  is  limited  to  the  purposes  for  which  they  are  reserved  under  the  scheme. The distinction is that while public parks and  playgrounds are dedicated to the public at  large for  common  use,  and  must  therefore  remain  with  the  State  or its  instrumentalities,  such as  the BDA or a  Municipal Corporation or any other authority, the civic  amenities are not so dedicated, but only reserved for

Page 14

particular or special purposes……………………

24. Protection  of  the  environment,  open  spaces  for  recreation  and  fresh  air,  playgrounds  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  sacrificed  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  playgrounds 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 urbanisation.

27. The statutes in force in India and abroad reserving  open  spaces  for  parks  and  playgrounds  are  the  legislative  attempt  to  eliminate  the  misery  of  disreputable  housing  condition  caused  by  urbanisation.  Crowded  urban  areas  tend  to  spread  disease, crime and immorality. As stated by the U.S.  Supreme Court in Samuel Berman v. Andrew Parker: (L  Ed pp. 37-38 : US pp. 32-33)

“…  They  may  also  suffocate  the  spirit  by  reducing the people who live there to the  status  of  cattle.  They  may  indeed  make  living an  almost  insufferable  burden.  They

Page 15

may also be an ugly sore, a  blight on the  community  which  robs  it  of  charm,  which  makes it a place from which men turn. The  misery of housing may despoil a community  as an open sewer may ruin a river.

… The concept of the public welfare is broad  and  inclusive  ….  The  values  it  represents  are spiritual as well as physical, aesthetic as  well as monetary. It is within the power of  the  legislature  to  determine  that  the  community  should  be  beautiful  as  well  as  healthy,  spacious  as  well  as  clean,  well- balanced  as  well  as  carefully  patrolled.  In  the  present  case,  the  Congress  and  its  authorized  agencies  have  made  determinations  that  take  into  account  a  wide variety of values ….” (Per Douglas, J.).”

13. In our opinion, the aforesaid observations are a complete  

answer to all the submissions made by the learned counsel for  

the appellants.  

14. This apart on the interpretation of Section 38A(1) and (2),  

the inescapable conclusion is that under Section 38A (1), BDA  

would have the authority to lease, sell or otherwise transfer  

any  area  reserved  for  the  purpose  for  which  such  area  is  

reserved,  and  no  other.   This  clearly  means  that  the  

Government  can  pass  on  the  responsibility  to  another  

concern,  be  it  individual,  company  or  corporation  for  the  

purposes of carrying  on the  activity  for  which the  plot  has

Page 16

been reserved as a civic amenity.  It does not give a licence to  

the BDA to convert the area reserved for civic amenities for  

activities  which  do  not  fall  within  the  definition  of  civic  

amenities.  Sub-section (2) of Section 38 is an embargo that  

even such sale or disposal otherwise of an area reserved for  

public  parks,  playground would not be permitted to private  

parties.  Though such spaces,  playgrounds and parks can be  

transferred  to  public  authorities,  but  their  user  would  be  

limited to the purposes for which they are reserved under the  

scheme.  In case, a disposition is made for a purpose other  

than the one for which it  is reserved, the Act has declared  

that, it shall be null and void.  In our opinion, Rule 3 of which  

the support is sought by the appellants can not be permitted  

to override the statutory provision contained in Section 38A(1)  

and (2).  Even otherwise, the rule only reiterates the statutory  

provision in Section 38A(1) and (2).  We also do not find any  

substance in the submission that the site was never allotted  

as  a  bank,  and,  therefore,  it  could  be  allotted  as  a  petrol  

pump. The High Court upon perusal of the pleadings as well as  

annexure ‘c’ appended to the writ petition has recorded the  

following facts :

Page 17

“In  so  far  as  the  factual  matrix  is  concerned,  it  is  necessary  to  record  that  the  site  in  question  was  originally earmarked as park/playground in 1984. This  factual  position stands acknowledged at the hands of  the Bangalore Development Authority in paragraph 5 of  its counter affidavit. Subsequently, three civic amenity  sites  came  to  be  carved  out,  in  the  area  earlier  earmarked for  park/play ground.  The first  of  these is  presently  being  used  by  the  Bangalore  Water  supply  and Sewerage Board. The second site, which is the one  in question was earmarked for use as a “bank”. So far  as the instant aspect of the matter is concerned, our  attention has been invited to Annexure-C appended to  the  writ  petition,  wherein  civic  amenity  site  no.2 has  been  shown as  earmarked  for  “bank”.  The  aforesaid  Annexure-C came to be executed on 06.01.1996. Civil  amenity  site  no.2  is  indicted  therein,  as  measuring  2195.35 sq. meters. In the column titled “purpose for  which earmarked”,  Annexure-C  specifies  “bank”.  It  is  the contention of the petitioners that, civic amenity site  no.2 which was earmarked exclusively for use as “bank”  has never undergone any change at the hands of the  Bangalore  Development  Authority.  Civic  amenity  site  no. 3 is not relevant for the instant case, and as such  we refrain, for reasons of brevity, from recording any  details in connection therewith.”     

15.   Upon  consideration  of  the  submissions  of  the  learned  

counsel for the parties, the High Court has concluded -

“We are satisfied that civil amenity site no. 2, at the  time of its allotment to respondent no.3 was expressly  earmarked for use as “bank”. The aforesaid position has  remained  unaltered  to  this  day.  In  terms  of  the  mandate  contained  in  Section 38-A  of  the  Bangalore  Development  Authority  Act,  19776  it  could  not  have  been leased, sold or otherwise, transferred for purpose  other than the one “….for which such area is reserved”.  Since  the  civil  amenity  site  in  question  was

Page 18

earmarked/reserved for “bank”, we are satisfied that it  could  not  have  been  allotted  for  use  as  a  “petrol  station”.    

16. From the above, it is evident that in fact, the site had  

been  originally  earmarked  to  be  developed  as  a  public  

park/playground  in  1984.  However,  since  the  same  has  been  

converted to a residential area, respondents Nos. 4 to 14 have  

very fairly stated that it could not at this stage be restored to its  

original  purpose  without  causing  havoc  in  the  lives  of  the  

residents.  They  have,  therefore,  not  insisted  that  the  site  be  

restored to its original purpose.    

17. We also do not find any merit in the submission that the  

term civic amenities would permit BDA to change the reservation  

from  one  particular  user  to  another  without  the  necessary  

amendment in the development plan.  This would be contrary to  

the law laid down by this Court in the case of B.S. Muddappa  

(supra).

18. We also do not find any substance in the submissions  

that the High Court has wrongly distinguished the judgment of  

the earlier Division Bench of the High Court in  Aicoboo Nagar  

Residents  Welfare  Association (supra).  A  perusal  of  the

Page 19

paragraph 10 of the aforesaid judgment clearly shows that  in  

that case, the High Court considered the legality of allotment of  

civic  amenity  site  no.3.  There  was,  in  fact,  no  change in  the  

activity/purpose,  as  the  site  had  not  been  reserved  for  any  

specific purpose. The other question was whether the lease in  

favour  of the government  company for  opening of petrol  and  

diesel outlet would fall within the definition of civic amenity. In  

the present case, it was not the case of the respondent nos. 4 to  

14 that petrol pump is not a civic amenity, therefore, the site  

could  not  have  been  allotted  to  open  a  petrol  pump.  The  

grievance of the respondents (writ petitioners in the High Court)  

was that civic amenity site no.2 had been earmarked for a bank  

and  could  not  be  allotted  for  a  petrol  pump  without  making  

necessary amendment in the site. Therefore, the High Court has  

rightly distinguished the aforesaid judgment and not relied upon  

the same.   

19. We,  therefore,  find  no  merit  in  the  appeals  and  the  

same are hereby dismissed.  

...………………….….….J.  [Surinder Singh Nijjar]

Page 20

………………………….J. [A.K.Sikri]

New Delhi; November 29, 2013.