BHAVANI HOUSING CO-OPERATIVE SOCIETY LIMITED R APPALO EDUCATIONAL TRUST R Vs. BANGALORE DEVELOPMENT AUTHORITY AND APPALO EDUCATIONAL TRUST R BANGALORE

JUDGEMENT

(1.) IN these intra-Court appeals, the appellant in WA No. 3697/2005 (hereinafter referred to as 'the society' for the sake of convenience), who was the petitioner in Writ Petition No. 35078/03 has challenged the order dated 4. 10. 2005 passed by the learned single Judge in its entirety. The appellant in WA No. 3759/05 (hereinafter referred to as the 'trust' for the sake of convenience)was arrayed as the second respondent in the said writ petition. The Trust has challenged the order passed in W. P. No. 35078/2003 only to the extent of the learned single Judge quashing the decision of the Bangalore Development Authority dated 3. 10. 2002 to execute the lease deed in favour of the Trust.

(2.) THE Society was before the learned Single Judge in the said writ petition calling in question the decision dated 3. 10. 2002 by which the BDA decided to execute a lease agreement in favour of the Trust in respect of the civic amenity site situate in the Housing Layout formed by the society. In this regard, the society also sought for quashing of the lease agreement dated 27. 2. 2003 executed by the BDA in favour of the Trust. The society had therefore sought for issue of writ of certiorari to quash the decision dated 3. 10. 2002 based on the pleadings in the writ petition. The said prayers were opposed by the respondents by detailed objection statement.

(3.) ON the rival contentions advanced by the petitioner and respondents, the learned Single Judge considered the relevant provisions of the Bangalore Development Authority Act (hereinafter referred to as 'the Act') viz. , Section 32 more particularly Section 32 (1) (2) (5) and (7) of the Act since it was argued on behalf of the society that even though it could be considered that Section 32 (5) of the Act would make it mandatory for the society to vest the different reserved areas to the BDA, the said provision only speaks about the roads, drains, water supply mains, open spaces, but does not include civic amenity and therefore even this mandatory provision for approval of the layout plan does not envisage the handing over of the civic amenity site to the bda. Since the open space has not been defined under the Act, it became necessary to refer to the definition of 'open space' which is defined at Section 2 (f) of the Karnataka Parks, Play Fields and open spaces (preservation and regulation) Act, 1985 (hereinafter referred to as the 'open spaces Act ). The learned Single Judge after referring to the same has come to the conclusion that the definition of open space in the Open spaces Act could be considered for the purpose of deciding whether the civic amenity site also forms a part of the mandatory provision under section 32 (5) of the Act and by coming to such conclusion, the learned single Judge has decided that the same can also be considered as an open space and therefore the same is to be relinquished by the society to the BDA as contemplated under the Act The next question which was considered by the learned Single Judge was with regard to the nature by which the BDA could claim the civic amenity site. In this regard the learned Single Judge has disapproved the manner in which the BDA has claimed to have taken possession of the site and has further held that the BDA can come in possession of the Civic amenity site only by way of relinquishment deed to be executed by the society and in this context, the learned Single Judge has quashed the decision taken by the BDA dated 3. 10. 2002 to execute the lease deed in favour of the Trust. Consequently however, the learned single Judge has directed the society to relinquish the civic amenity site in favour of the BDA and has directed the BDA to thereafter lease the civic amenity site in favour of the Trust.