MASAY Vs. BANGALORE CITY CORPORATION

JUDGEMENT

(1.) THIS public interest litigation has been filed with a prayer that the land measuring 4 acres 28 guntas situated by the side of Cox town, Bangalore, be restored to its original use by quashing the government Order bearing No. HUD/190/mny/90 dated 2. 9. 1993 (Annexure-A) pursuant to which part of the land has been converted for exclusive use by the members of the 4th respondent, Indian gymkhana, a private club, by putting a compound wall all around and erecting permanent structures there on.

(2.) THE land in question situate on Wheelers Road, Cox Town and is meant for being used by the general public for sports and other related activities. This is now popularly known as Gymkhana ground. During the year 1932, the respondent-Club requested the corporation to permit them to use the land for sports activity and develop the same for public benefit. The Corporation by resolution dated 28. 7. 1932 resolved that the land be leased to the Club on lease at an annual rent of Rs. 5/-for a term of five years. On 14. 12. 1937 the lease was renewed for a further period of ten years on an annual rent of Rs. 5/ -. A copy of the said lease deed together with a sketch is produced as Annexure-R1. On 15. 2. 1954 the lease period was extended by 15 years and again on 29. 8. 1969 the lease was further renewed for five years. A copy of the lease deed dated 29. 8. 1969 is produced as Annexure -R2. On 8. 2. 1978 the lease was renewed for a period of 35 years with effect from 18. 6. 1973 and a copy of the same is produced as Annexure-R3. All these lease deeds stipulate that the area should be used only for the purpose of conducting sports and games and it should be kept as open space. Clause 3 and 5 of the subsisting lease agreement (Annexure-R3) are material for the present purposes. These clause read as under: Clause 3: The lessee shall use the schedule land only for the purpose of conducting sports and games and for no other purposes. Clause 5: The lessee shall keep the schedule land as open space and shall not put up any permanent structure without the written permission of the lessor. RE: NATURE OF THE LAND:

(3.) THE respondent-Corporation in its statement of objections (Para-4) has categorically stated that the land in question was used for over 60 years as a public play ground by the general public. The commissioner of the Corporation in his affidavit filed on 18. 11. 2002 has reiterated that the land was meant for being used for public for sports and related activities. This fact has been admitted even by the Prl. Secretary to Government, Urban Development Department. In his affidavit dated 19. 11. 2002, at paragraph 2 whereof, he has stated that the land is an open space/play ground belonging to the corporation. Even the Secretary of the respondent-Club, at paragraph 5 of his affidavit filed on 28. 8. 2002, has categorically admitted that from time immemorial the land has been used for playing cricket and other games. From the above affidavited statements made by all the concerned parties it has to be taken that the land in question was all through used by the public at large and it had vested in the corporation only as a play ground, and open space. RE: CHANGE IN LAND USE: