Blossom School vs The Bangalore Development ...
2023 Latest Caselaw 1384 Kant

                                            -1-
                                                    WP No. 18969 of 2015




                   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 17TH DAY OF FEBRUARY, 2023

                                         BEFORE

                       THE HON'BLE MR JUSTICE KRISHNA S DIXIT

                          WRIT PETITION NO. 18969 OF 2015 (BDA)
                   BETWEEN:

                   1. BLOSSOM SCHOOL,
                      KANAKA EDUCATIONAL TRUST (REGD)
                      KHANEMUNESHWARASWAMY TEMPLE GROUND,
                      KUMARASWAMY LAYOUT, BANGALORE-560 078
                      REPTD BY ITS ASSISTANT HEAD MISTRESS,
                      SMT.K.SARASWATHI

                   2. KANAKA EDUCATION TRUST (REGD)
                      NO.6,KHANEMUNESHWARASWAMY TEMPLE GROUND,
                      KUMARASWAMY LAYOUT, BANGALORE-560 078
                      REPTD BY ITS SECRETARY
                      SRI MUNITHIMMANNA M
                                                          ...PETITIONERS
                   (BY SRI. M V VEDACHALA .,ADVOCATE)

                   AND:
Digitally signed
by CHETAN B
C
Location: HIGH
                   THE BANGALORE DEVELOPMENT AUTHORITY (BDA)
COURT OF           T CHOUDAIAH ROAD, KUMAR PARK EAST,
KARNATAKA
                   BANGALORE-560 020.
                   REP BY ITS COMMISSIONER.
                                                          ...RESPONDENT
                   (BY SRI. G LAKSHMEESH RAO.,ADVOCATE)

                        THIS WRIT PETITION IS FILED UNDER ARTICLES 226
                   AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET
                   ASIDE    OR   QUASH    THE   IMPUGNED   NOTIFICATION
                   DT.11.3.2015 AT ANNX-M AND CORRIGENDUM DT.4.4.2015 AT
                   ANNX-N ISSUED BY THE RESPONDENT AND ALL FURTHER
                   PROCEEDINGS PURSUANT TO THE IMPUGNED NOTIFICATION
                   AND ETC.,
                              -2-
                                      WP No. 18969 of 2015




     THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT MADE THE FOLLOWING:

                          ORDER

The 1st Petitioner - School run by the 2nd Petitioner -

Trust are knocking at the doors of Writ Court for assailing

the BDA Notification dated 11.03.2015 (Annexure-M) and

the Corrigendum dated 04.04.2015 (Annexure-N) whereby

applications are invited from the public at large for the

allotment of the subject site for the purpose of religious &

community abode.

2. Learned counsel for the Petitioners falters the

subject notifications contending that in the earlier round of

litigation a Coordinate Bench has remanded the matter

after quashing the allotment of the site to another body

and therefore, the BDA is bound to process the earlier

applications only; the subject site is being used as the

playground for the children of the Petitioner school since

decades and therefore, it cannot be allotted for any other

purpose; the site in question being a civic amenity site

cannot be granted for the construction of religious &

WP No. 18969 of 2015

community buildings, without effecting the diverting of

purpose as prescribed under Section 14 & 14 A of the

Karnataka Town and Country Planning Act, 1961.

3. After service of notice, the Respondent - BBMP

having entered appearance through its Sr. Panel Counsel

has filed its Statement of Objections on 04.08.2016

resisting the Writ Petition. Learned Panel Counsel

contends with equal vehemence justifying the impugned

notification and the corrigendum, essentially contending

that: BDA being the owner can allot the site for the

specific purpose and petitioner cannot object to that; the

Court order in earlier Writ Petition does not interdict

allotment of site for the purpose other than educational; it

is open to the Petitioners to stake their claim for allotment

under the subject notifications; the petition being devoid

of merits is unworthy of adjudication. So contending he

seeks dismissal of Writ Petition.

4. Having heard the learned counsel for the parties

and having perused the Petition papers, this Court declines

WP No. 18969 of 2015

to grant indulgence in the matter for the following

reasons:

(a) The site in question belongs to the ownership of

BDA, same having been earmarked as a civic amenity site

in the Layout Approved Plan, cannot be disputed. The

ownership is a bundle of rights and one of them being the

right to transfer the property. BDA being the owner, can

deal with the property in the manner it wants consistent

with the provision of Bangalore Development Areas Act,

1976 and the Rules promulgated thereunder. Since, the

terms 'civic amenity' is extensively defined under Section

2(bb) of the 1976 Act, the purpose for which the said site

is being notified for allotment, cannot be said to be alien,

as rightly contended by learned Panel Counsel appearing

for the BDA.

(b) The vehement submission of learned counsel

for the petitioner that earlier the site was allotted to the

BDA for educational purpose and therefore, the impugned

notifications which provide for allotment for the purpose of

WP No. 18969 of 2015

religious & community building, are bad in law is difficult

to countenance. Firstly, there is nothing on record to

demonstrate that the site in question was earmarked for

educational purpose. Secondly, the purpose for which the

site is notified for allotment, as already mentioned above

falls within the definition of civic amenity and therefore,

there is no question of change of purpose at all. Thirdly,

assuming that there is change of purpose, it is being done

by the BDA which otherwise is the competent authority for

sanctioning the change of user, such a contention is legally

unsustainable.

(c) The submission of Petitioners' counsel that what

is ordered in the earlier round of litigation does not permit

the subject site being notified for any purpose other than

educational, cannot be agreed to. True it is that the site

was allotted to another Trust vide BDA resolution dated

26.03.2010 and this came to be voided by the Coordinate

Bench in Petitioners W.P No. 22194-95/2010 allowed on

WP No. 18969 of 2015

16.09.2011. The Bench at paragraph 7 of the judgment

has observed as under:

"7. However, the quashing of the allotment of civic amenity site No.6/A earlier allotted to the respondent No.2, does not mean that it is to be given to the petitioner or to the other applicants which do not meet the eligibility criteria. If the application/s of the petitioner or of any other applicants is/are are not meeting the eligibility criteria as per the said Rules, the respondent No.1 is bound to reject all such applications, which on scrutiny, is/are found to be ineligible. It shall draw and hold the comparative assessment of the merits of the eligible applicants and then take a decision in the matter. Furthermore, it is also made clear that there is no impediment in allotting the site to the respondent No.2, if the first respondent or its Committee comes to the studied conclusion that the second respondent's claims are more meritorious than those of the other applicants."

There is nothing in the whole judgment which

interdicts the BDA from notifying the site for any other

purpose, the only restriction being that such a purpose

should not be alien to the idea of civic amenity as

expansively stated u/s.2(bb) of the 1976 Act.

WP No. 18969 of 2015

(d) There is force in the submission of learned Panel

Counsel that it is also open to the petitioners to apply

under the impugned notifications for the allotment of

subject site provided that they have eligibility &

qualifications. The response of the petitioners' counsel

that the Bruhat Bengaluru Mahanagara Palike is trying to

usurp the site in question on the basis of BDA resolution

dated 14.08.2012 is discounted by the Panel Counsel who

states that the said resolution now pales into

insignificance, the BBMP having not come forward for

taking the site and further the impugned notifications

having been issued calling for applications from the public

for allotment for the purpose of Religious & Community

Building. This fairness of the Panel Counsel needs to be

appreciated.

(e) The last submission of petitioners' counsel that

the subject site is being used by school children and others

as a playground since years and therefore the same cannot

be notified for allotment for any other purpose, is difficult

WP No. 18969 of 2015

to countenance. As already mentioned above, it is the

property of BDA and therefore BDA would decide as to

what it should do with the same, of course, subject to

regulation by the law. If the Trust is running the school, it

is for the Trust to secure some other property for being

used as school playground. It cannot eye on public

property for its purpose in the absence of enabling

provisions of law. The Karnataka Education Act, 1983 and

the rules promulgated thereunder do prescribe the

requirement of school playground. The responsibility is on

the management to secure such a ground and it cannot

seek refuge under the umbrella of respondent-BDA. This

apart, no evidentiary material is produced that the subject

site is being used by the public and by the school children

as a play ground, despite its not being designated as such.

Even otherwise, such a contention does not avail in law so

as to create any right in favour of the petitioners based on

which impugned notifications can be voided.

WP No. 18969 of 2015

In the above circumstances, the Petition being devoid

of merits, is liable to be dismissed and accordingly it is,

costs having been made easy.

However, nothing stated hereinabove shall come in

the way of Petitioners applying for the allotment of the

subject site under the impugned Notification, within a

period of four weeks. If such an application is made, the

Respondent - BDA shall consider the same along with

other claims in accordance with law.

No costs.

Sd/-

JUDGE Bsv