Dismissed

Blossom School v. the Bangalore Development Authority (Bda)

Karnataka HC17 Feb 2023WP/18969/2015

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging notifications inviting public applications for allotment of a BDA civic amenity site for religious and community purposes. The Court held that BDA, as the owner, can allot the site within the scope of 'civic amenity' definitions and that the petitioners remain eligible to apply, though the petition itself lacked merit due to their failure to dem

What did the court decide?

The writ petition was dismissed with costs made easy. Petitioners were permitted to apply for allotment of the site under the notifications within four weeks.

Blossom School Vs the Bangalore… — Pension and Retirement Benefits | Karnataka HC (2023)

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1 - WP No. 18969 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 17^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE KRISHNA S DIXIT

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WRIT PETITION NO. 18969 OF 2015 (BDA)

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BETWEEN:

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

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

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…PETITIONERS

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(BY SRI. M V VEDACHALA .,ADVOCATE)

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AND:

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Digitally signed by CHETAN B C Location: HIGH COURT OF KARNATAKA

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THE BANGALORE DEVELOPMENT AUTHORITY (BDA) T CHOUDAIAH ROAD, KUMAR PARK EAST, BANGALORE-560 020. REP BY ITS COMMISSIONER.

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…RESPONDENT

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(BY SRI. G LAKSHMEESH RAO.,ADVOCATE)

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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.,

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WP No. 18969 of 2015

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

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ORDER

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The 1^st Petitioner – School run by the 2^nd Petitioner –

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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.

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Learned counsel for the Petitioners falters the

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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 &

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WP No. 18969 of 2015

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community buildings, without effecting the diverting of purpose as prescribed under Section 14 & 14 A of the Karnataka Town and Country Planning Act, 1961.

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After service of notice, the Respondent – BBMP

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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.

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Having heard the learned counsel for the parties and having perused the Petition papers, this Court declines

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WP No. 18969 of 2015

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to grant indulgence in the matter for the following reasons:

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(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.

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(b) The vehement submission of learned counsel

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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

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5 - WP No. 18969 of 2015

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religious & community building, are bad in law is difficult

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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.

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(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

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6 - WP No. 18969 of 2015

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16.09.2011. The Bench at paragraph 7 of the judgment

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has observed as under:

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“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.”

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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.

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WP No. 18969 of 2015

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

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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.

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(e) The last submission of petitioners’ counsel that

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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

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WP No. 18969 of 2015

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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

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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

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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.

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WP No. 18969 of 2015

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In the above circumstances, the Petition being devoid

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of merits, is liable to be dismissed and accordingly it is, costs having been made easy.

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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.

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No costs.

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Sd/JUDGE

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Bsv

Blossom School v. the Bangalore Development Authority (Bda)

Case brief

What is this about?

What did the court decide?

Blossom School v. the Bangalore Development Authority (Bda)

Case brief

What is this about?

What did the court decide?

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