1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05th DAY OF MARCH 2013
BEFORE:
THE HON’BLE MR. JUSTICE ANAND BYRAREDDY
WRIT PETITION Nos.5445-5455 OF 2012 (BDA)
BETWEEN:
1. Sobha Developers Limited,
A company incorporated under the
provisions of Companies Act 1956
having its registered office at
Sarjapur – Marthahalli Outer Ring
Road (ORR), Devarabisanahalli,
Bellandur Post, Bangalore – 560 103.
Represented by its Authorized Signatory,
Sri. Vijayakumar .G Bagoji.
2. Sobha Innercity Technopolis Private
Limited, a Company incorporated
under the provisions of Companies Act 1956,
having its registered office at
No.E-106, Sunrise Chambers,
No.22, Ulsoor Road,
Bangalore – 560 042,
Represented by its Authorized Signatory,
Sri. Vijayakumar G.Bagoji. …PETITIONERS
(By Shri. Madhusudhana R.Naik, Senior Advocate for Shri.
Venkatesh P.Dalwai, Advocate )
2
AND:
1. The State of Karnataka,
Department of Urban Development
and Town Planning,
Vikasa Soudha, Bangalore – 560 001,
Represented by its Secretary.
2. The Bangalore Development Authority,
No.1, T. Chowdiah Road,
Kumara Park West,
Bangalore – 560 002,
Represented by its Commissioner.
3. Sobha Ameshyst and Sobha Adamus
Apartment Owners Welfare Association,
Sy.No.184, 185 and 187,
Kannamangala Village,
Bidarahalli Hobli,
Bangalore,
Represented by its President and
Secretary.
4. Sobha Althea and Sobha Azalea,
Apartment Owners Welfare Association,
Sy. No.41/1, 41/2 and 55/2,
Harohalli Village,
Yelahanka Hobli,
Bangalore North Taluk,
Bangalore,
Represented by its President and Secretary.
5. Sobha Lotus Villa,
Owners Association,
Sy. No.61/2, Kundalahalli Village,
3
K.R.Puram Hobli,
Bangalore East Taluk,
Bangalore, Represented by its President
and Secretary.
[cause title amended
as per the order dated 10.12.2012]
…RESPONDENTS
(By Shri. K. Krishna, Additional Government Advocate for
Respondent No.1
Shri. V.B. Shiva Kumar, Advocate for Respondent No.2
Shri. P.S. Rajagopal, Senior Advocate for Shri. Madhukar
Deshpande, Advocate for Respondent Nos. 3 to 5 )
*****
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India, praying to quash item No.7,9,10 and 11
and condition nos. 1, 2 and 3 of allotment letters dated 3.1.2012,
second respondent in No.451 to 455 produced at Annexure-G, H,
J, K and L respectively, in the interest of justice and equity and
etc;
These petitions, having been heard and reserved on
11.01.2013 and coming on for Pronouncement of Orders this day,
the Court delivered the following:-
O R D E R
The facts of the case are as follows:
The petitioners are engaged in the business of Real
Estate Development and have jointly preferred these writ
petitions raising several common questions of law.
4
The petitioners have furnished details of their
unquestionable presence in the business and their track record.
The petitioners claim that during the period 2006 to 2010, they
had developed five residential group housing projects namely,
a) Sobha Althea & Azalea, b) Sobha Adamus & Amethyst, c)
Sobha Chrysanthemum and d) Sobha Ruby & Ruby Platinum,
and had developed a layout project, namely, e) Sobha Lotus.
This was as per the plans sanctioned by the second respondent,
the Bangalore Development Authority.
It is stated that after such sanction of plans, as
required under law the petitioners had executed
Relinquishment deeds in respect of civic amenity sites, open
spaces and park areas in respect of the above projects as per the
sanctioned plan, in favour of the second respondent. The
second respondent is the Planning Authority under the
Karnataka Town and Country Planning Act, 1961 (hereinafter
referred to as ‘the KTCP Act’ for brevity). In terms of Section
67 of the Bangalore Development Authority Act, 1976
5
(hereinafter referred to as ‘the BDA Act’ for brevity), it has
framed the Revised Master Plan 2015, (hereinafter referred to
as the ‘RMP 2015’ for brevity) which was duly approved by
the State Government on 22.06.2007. That under the RMP
2015, the BDA incorporated a mode of disposal of Civic
amenity sites, open spaces and park areas for the purpose of
development by the owner or developer, which ultimately was
to be handed over to the Local Residents Association or group,
for maintenance. The petitioners contend that after completion
of the construction in the above said five residential projects,
they had requested the BDA on several occasions, the last of
which was on 9.7.2010, for re-allotment of the civic amenity
sites out of the area relinquished to it for providing amenities
for the benefit of residents, while abiding by the process and
procedures in terms of RMP 2015. The said representation
was kept pending without any response. Therefore, the
petitioners were constrained to file a writ petition before this
Court in W.P.No.31663-667/2011 which was ultimately
6
disposed of by an order dated 8.9.2011, in terms of an order
passed in W.P.No.12689/2011, dated 13.07.2011. This Court
had held in those petitions, that the Bangalore Development
Authority (Allotment of Civic Amenity Sites) Rules, 1989
(hereinafter referred to as ‘the 1989 Rules’, for brevity), were
not applicable in considering the representation of the
petitioners and directed the BDA to consider the representation
made by the petitioners for allotment of the civic amenity sites
in terms of Regulation 7 of the RMP 2015. Therefore, the
petitioners had again made a request on 16.09.2011 to the BDA
to comply with the directions issued by this Court. The BDA
had issued allotment letters on 3.1.2012, and on other dates,
and allotted 11 civic amenity sites, however, contrary to the
mandate of RMP 2015 and the specific direction issued by this
Court. The BDA had invoked the 1989 Rules and incorporated
certain conditions such as a fixed period of lease for 30 years,
payment of lease amount in a lumpsum or in yearly
7
installments and fixation of annual rents, etc., which are not at
all contemplated in RMP 2015.
The petitioners claim that they have completed the
residential projects. The BDA has also issued occupation
certificates in respect of the various apartments and other units
and the petitioners have also executed sale deeds in favour of
third party purchasers of such units from 27.08.2010 onwards
and in those sale deeds and other agreements, the petitioners
have committed themselves to certain contractual obligations
for providing certain civic amenities on sites which were to be
allotted by Respondent No.2 and have also agreed to develop
the same at their own cost and hand over the same to
associations which would undertake the maintenance of the
common areas and the civic amenities in the respective
projects as they represent the ultimate beneficiaries. The
petitioners had then made a request to the BDA seeking
sanction of plan for construction of the civic amenities, as per
8
letters dated 31.01.2012 onwards. The measurement of the
civic amenity sites pertaining to the projects is as hereunder:
Request made for Plan Sanction in CA Sites
Projects CA sites
(Sq.mt.)
Sobha Althea/ Azalea
Sy.No.41/1, 41/2 and 45/2 of Harohally,
Yelahanka Hobli, Bangalore North Taluk,
Bangalore
1914.576
Sobha Chrysanthemum
Sy.No.98/1, 98/2, 99/1, 99/3 of
Thanisandra, K.R. Puram Hobli,
Bangalore
East Taluk, Bangalore.
3785.24
Sobha Adamus Amethyst
Sy.No.184, 185, 187 of Kannamangala,
Bidarahalli Hobli, Bangalore East Taluk,
Bangalore.
2377.97
576.16 Sobha Lotus
Sy.No.61/2 of Kundalahalli Village,
K.R. Puram Hobli,
Bangalore East Taluk, Bangalore.
600.96
9
It is the case of the petitioners that in view of their
contractual obligations, the resident associations are exerting
pressure on the petitioners to develop the civic amenity sites, as
their members are reluctant to occupy the apartments without the
civic amenities being provided and those who have already
occupied the apartments notwithstanding that the civic amenity
sites are not developed, are even more agitated and are threatening
legal action against the petitioners. This situation has been
brought about for no fault of the petitioners. In that, the
petitioners have not proceeded to develop the civic amenity sites
in the light of extraneous conditions having been imposed by the
BDA, dehors the RMP 2015. It is the imposition of such
conditions that is under challenge in these writ petitions.
2. The learned Senior Advocate, Shri Madhusudan R. Naik,
appearing for the learned counsel for the petitioners contends that
the BDA has no power or jurisdiction to impose a condition as
regards the period of lease and to claim lease rentals under the
10
RMP 2015 while acting in its capacity as the Planning Authority
under the KTCP Act. Therefore, the impugned conditions are
illegal and without jurisdiction. Attention is drawn to Regulation
7.1.2 of RMP 2015 which reads as follows:
“Regulation 7.1.2:
A minimum 5% of total plot area shall be provided
for civic amenities and the owner or developer shall
develop such civic amenities which finally shall be
handed over to local residents association for
maintenance. The mode of such handing over shall
be decided by the Authority.”
From a reading of the above, the learned Senior Advocate would
point out that about 5% of the total plot area to be reserved for
civic amenity sites which is to be developed by the builder and to
be handed over to the local residents association for maintenance.
From this, it would follow that the role of the Planning Authority
and its intervention is contemplated only after the builder develops
the civic amenity site and when it is to be handed over to the local
residents association in deciding the procedure for transfer from
11
the developer to the local residents association. It does not
authorise the BDA to impose conditions such as the period of
lease, the lease rentals, etc. It is also pointed out that under the
amended Section 67 of the BDA Act, 1976, the BDA is the
Planning Authority for the purposes of the KTCP Act. Section
81(b) under the said Act empowers the BDA to act as the local
Planning Authority, thereby exercising all powers under the
KTCP Act. While discharging the functions as the Planning
Authority, the BDA has no power to invoke the provisions of the
1989 Rules and impose conditions, which are not at all
contemplated under the RMP 2015, or under the KTCP Act, 1961.
Notwithstanding that the BDA discharges duties of dual
authorities under the independent statutes, it is not contemplated
in law that while exercising power under one Act, the said
authority could invoke the provisions of the other as though there
was an amalgamation of such power. The exercise of power
under the said statutes remains distinct and independent.
Therefore, the imposition of any such conditions while applying
12
RMP 2015 by recourse to the 1989 Rules, is clearly without
jurisdiction. The circumstance that the BDA has chosen to
impose such conditions by recourse to a hybrid procedure as
above, in spite of this Court having issued a specific direction as
to the BDA being required to apply the RMP 2015 without
reference to the 1989 Rules, is hence, an affront to this Court and
is therefore liable to be quashed.
3. The learned counsel for the BDA on the other hand
contends that it is not in dispute as to the petitioners having
executed the Relinquishment Deeds in respect of the civic amenity
areas and open spaces and park areas. The BDA being the
Planning Authority under the provisions of the KTCP Act and
having framed the RMP 2015, duly approved by the State
Government, is also not in dispute. RMP 2015 provides for the
mode of disposal of the civic amenity sites. Clause 7.1 of the
RMP 2015, provides for 10% of the land reserved for parks and
open spaces. The open spaces and parks relinquished in favour of
13
the authority free of cost may be allowed to be maintained by the
local residents’ association, if the authority so decides. It is
contended that the RMP 2015, is only a notification. The
petitioners cannot seek any benefit under the same. On the civic
amenities, open spaces and park areas vesting with the BDA by
virtue of the same having been relinquished in its favour it will
necessarily have to follow the procedure prescribed under the
1989 Rules which govern the field as regards the manner in which
the civic amenity sites shall be allotted, and would override any
notification issued under the KTCP Act. Even the notification
issued under the KTCP Act contemplates that the mode of
handing over shall be decided by the authority. This affords
adequate discretion to the authority to prescribe modalities of
handing over of the same. The letters of allotment of the civic
amenity sites that have been issued to the petitioners, are not
issued under the provisions of the RMP 2015 but they are issued
under the provisions of the 1989 Rules. It is not incumbent on the
authority to apply the RMP 2015 or the provisions of the KTCP
14
Act for purposes of collection of the lease amounts. Hence, it is
contended that the petitions lack merit. It is incidentally also
canvassed that the BDA Act defines civic amenity which may be
allotted in accordance with the provisions of the allotment of sites
rules, which contemplates the imposition of conditions in terms of
the lease deed. So also, the 1989 Rules provide for allotment and
prescribes the eligibility criteria and the selection of an institution
for leasing out the civic amenity sites. Therefore, when the 1989
Rules continue to remain on the statute book, the authority is
enabled to invoke the same in exercise of its power thereunder.
4. The learned Senior Advocate Shri Naik, by way of
rejoinder, would submit that in the first instance, without
prejudice to the case of the petitioners, the petitioners were
directed to deposit one year’s rentals as indicated by the BDA,
subject to the result of the writ petitions. Such rentals have been
deposited in respect of four projects and the BDA has in turn
sanctioned the plan with respect of the civic amenity sites to be
15
developed by the petitioners and handed over to the residents
association. Regulation 7.1 that provides for regulations for
residential development plan and 7.1.1 and 7.1.2, 10% of the land
shall be reserved for parks and open spaces, which is to be
relinquished to the authority free of cost and which may be
allowed to be maintained by the local residents’ association, if the
authority so desires. A minimum of 5% of the total plot area shall
be provided for civic amenity sites. The petitioners have
relinquished 15% of the total plot area in terms of the above
regulations in all its five projects. Therefore, after coming into
force of the RMP, 2015 with effect from 25.06.2007, the
petitioners had been requesting the BDA to release the land to
develop the civic amenity sites which is ultimately to be handed
over to the local residents’ association for maintenance. Under
RMP, 2015, it is the builder who is compulsorily required to
develop the civic amenity sites free of cost and hand over the
same to the local residents associations who are the ultimate
beneficiaries of the developed civic amenities. It is pointed out
16
that this court has declared the position of law in this regard, in
that , the 1989 Rules not being attracted and the totally different
purpose and object of the introduction of the RMP 2015. While
also holding that there is indeed no conflict between the two, in
deciding the writ petitions as at Annexures C & D to the petitions.
The BDA having accepted the findings, as the said Orders have
attained finality, is estopped from contending otherwise. There
can be no doubt as is evident from the allotment letters now issued
in respect of the civic amenity sites that the same are issued with
reference to the RMP 2015. Having regard to the finding of this
court , the BDA is not justified in dismissing the RMP 2015, as a
mere “notification” over which the 1989 Rules, purportedly,
prevail.
The claim of the BDA that by virtue of the relinquishment
deeds executed by the petitioners, it has gained the absolute
authority to impose any conditions, is misconceived. As the
development of the civic amenity sites is entirely at the cost of the
petitioners and the ultimate beneficiaries being the local residents
17
associations, there is no justification in fact or in law for the BDA
to impose any such obligation of payment of lease rentals or other
charges. This would amount to nothing short of extortion. The
petitioners in any event do not stand to gain any benefit from the
allotment of the civic amenity sites.
It is asserted that it is Regulation 7.1.2 of RMP 2015 which
is relevant and a plain reading of the same would indicate that
there are four stages that are contemplated in the transfer of civic
amenity sites.
a) A minimum of 5 % of total plot area shall be provided
for civic amenities.
b) The owner or developer shall develop such civic
amenities.
c) The developed civic amenity site shall , ultimately, be
handed over to the local residents associations.
d) The mode of such handing over shall be decided by the
authority.
18
In deciding the “mode of handing over”, there is no scope
for the BDA to act under the 1989 Rules, while exercising its
authority under the RMP 2015. In any event RMP 2015 does not
contemplate the imposition of lease rentals or the execution of a
lease deed. The development of the civic amenity site by the
developer and handing over to resident associations is not a
scenario contemplated under the 1989 Rules.
5. In the light of the above contentions, it is to be noticed at
the outset that the controversy has been largely considered and an
opinion expressed by this court that the BDA cannot apply the
1989 Rules in acting under Clause 7.1.2 of the RMP 2015 (which
is the Clause relevant for the purposes of this case.) This court by
its Order dated 13-7-2011, passed in W.P.No.12689/2011, M/s
Golden Gate Properties Ltd. Vs. State of Karnataka & another, has
expressed thus :
“Insofar as 5% of the area provided for civic
amenities is concerned, the developer has to develop
the civic amenities and thereafter, the same has to be
19
handed over to the local residents association for
maintenance. The mode of such handing over has to
be decided by the Authority i.e., the BDA.
Therefore, representations have been made in that
regard both by the developer as well as the
Association to permit 10% of the park and open
space which has been relinquished to the BDA for
permission to maintain the same by the Association
and further a request has also been made for the
development of 5% of the Civic Amenities Areas so
that the same could be handed over to the local
residents’ association for maintenance. While
considering the said representations, the BDA has
applied the Rules of 1989, which in my view, are not
applicable, having regard to the fact that the
regulations and particularly Regulation 7.1 are clearly
specific and they being approved by the State
Government would have an overriding effect on the
1989 Rules. The 1989 Rules deals with the allotment
of Civic Amenity Sites to various categories of
persons mentioned in the said Rules on lease basis for
the purpose of providing Civic Amenities, subject to
certain terms and conditions. The expression Civic
Amenity Site is defined in Clause ‘b’ of Section 2 to
20
mean an area marked for civic amenity in a layout
formed by the authority earmarked is not a private
layout approved by the authority and relinquished to
it.
11. The object of the Karnataka Town and
Country Planning Act, 1961 is to provide for the
regulation of planned growth of land use and
development and for the making and execution of
town planning schemes in the State of Karnataka.
Under the Act what is envisaged is to create
favourable conditions to provide full civic and social
amenities for the people of the State and to improve
existing recreational facilities and other amenities
contributing towards plan, use of lands and to
generally promote standards of living.
‘Development’ has been defined in Sub-Clause (1-c)
of Section 2 of the Act. Under Section (3-b) ‘Master
Plan’ is defined to mean a plan for the development
or re-development of the area within the jurisdiction
of the planning authority. ‘Planning Authority’ is
defined in Sub-Section (7) of Section 2 which refers
to Bangalore Development Authority as far as local
planning area comprising the City of Bangalore is
21
concerned. Preparation of Master Plan is envisaged
under Section 9 of the Act, while Section 10 deals
with declaration of intention for making Master Plan.
Contents of the Master Plan is stated in Section 12 of
the Act while the procedure for approval of the
Master Plan is enunciated in Section 13. The Zoning
Regulation for Bangalore was approved by
Government Order dated 25.6.2007, popularly called
the Revised Master Plan-2015 which applies to the
Bangalore Metropolitan Area also defined as the
Local Planning for the City of Bangalore and its
surroundings as declared under Karnataka Town and
Country Planning Act, 1961 and the Authority i.e.,
BDA has certainpowers and duties with regard to the
enforcement of the Master Plan-2015. The Revised
Master Plan-2015 has to be read in terms of the
relevant planning district plans in the matter of
permissible land uses within the zone and the
respective regulations for land use to achieve orderly
growth. The entire Local Planning Area for the city
of Bangalore has been divided into three main Rings
and the classification of land use zones are also given
including public utilities and Park and open space.
Having regard to the fact that the zoning regulations
22
for Bangalore Local Planning Area is prepared in
terms of Section 12 of the Karnataka Town and
Country Planning Act and the Revised Regulations
have been adopted by Government Order dated
25.6.2007, the same would be applicable in respect of
Group Housing since it is the BDA which is the
Authority which has to grant sanction for Group
Housing Plan.
12. Thus, Revised Master Plan-2015 is a
document which envisages a compact balanced plan
and equitable, urban growth for the city. Zonal
Regulations are an integral part of the Revised
Master Plan-2015 and are required to be read with the
proposals for land use plans.
13. Chapter 7 of the Revised Master Plan-
2015 deals with regulations for residential
development plans and non-residential development
plans. Chapter 7.1 deals with residential
development plan, which is under consideration.
Regulation 7 deals with the manner in which areas
reserved for park and open space which are
relinquished to the authority can be maintained by the
23
local residents’ association if the authority so desires.
As far as civic amenity sites are concerned,
Regulation 7.2 provides for development of the
said sites by the developer and the maintenance.
Though the open space and park areas or the civic
amenity sites may be relinquished by the
developer of the private layout through the
authority, nevertheless what regulation under
Chapter 7 prescribes is, only with regard to the
maintenance of the said areas. The said
regulations do not deal with disposal of such sites.
Even in the absence of disposal of the said areas
by the authority, the maintenance of the said city
can be handed over to the registered local
residents’ association. It is only when the civic
amenity site is allotted to specific categories of
persons that the Bangalore Development
Authority (Allotment of Civil Amenity Site) Rules,
1989 would apply. The said allotment would be
having regard to various criteria as stated in Rule
7 read with Rules 4 and 10. Therefore, when
there is no allotment of a civic amenity site, but
only the maintenance of the same has to be
considered, Regulation 7 of the Master Plan-2015
24
would apply and not Rules of 1989. It is only
when a civil amenity site is to be disposed on the
basis of a lease to be executed by the authority
that the 1989 Rules would apply.
(Emphasis supplied)
14. In the instant case, the petitioners are
seeking a direction to the Bangalore Development
Authority to consider their representation as well as
the representation made by the association in terms of
Chapters 7.1 and 7.2 of Revised Master Plan-2015.
They are not seeking any allotment of the civic
amenity site which they have relinquished to the
BDA. Therefore, 1989 rules pertaining to allotment
of Civic Amenity Sites would not be applicable.
15. Hence, the BDA has to consider the
representation made by the petitioner as well as by
the Association in terms of Regulations 7.1 and 7.2
respectively rather than referring the matter to the
State Government or by stating that a lease has to be
executed by the BDA with regard to the park and
open space as well as with regard to the Civic
Amenity Sites. Hence, a direction has to be issued to
the respondent-BDA to consider the representation
25
made by the petitioner as well as the Association
which are at Annexure-F in the context of Regulation
7.1 of the Revised Master Plan-2015. Moreover, the
State Government has also stated that it is for the
Bangalore Development Authority to take a decision
in the matter in terms of letter dated 21.4.2011 which
is filed along with the memo dated 12.7.2011. The
respondent-BDA is therefore directed to consider
the case of the petitioners in the light of
Regulation 7 of the Revised Master Plan-2015 and
not under the 1989 Rules. The said consideration
shall be made within a period of two months from the
date of receipt of the certified copy of this order. In
the result, the writ petition is disposed of with the
above direction.”
(Emphasis supplied)
The above decision was in fact applied to the petitioners herein in
their earlier petition before this court in WP 31663- 667/ 2011
dated 6-9-2011, a copy of the Order is at Annexure –C to the
present petitions.
It is therefore inexplicable that the BDA has chosen to
ignore the specific direction of this court. The conditions
26
imposed, of a deposit, a yearly rental and surcharge, under the
several allotment certificates issued in respect of the specific civic
amenities, which are under challenge in these petitions, cannot be
justified.
Under Chapter 6 of the RMP 2015, providing for – Sub-
division Regulations , under Regulation 6.1 d) i) it is provided as
under :
“d) Civic amenities and Roads:
i) After making provision for Parks and roads in the layout,
the balance portion of land shall be earmarked for civic amenity
site only. Such CA site shall be relinquished to BDA free of cost
and free of encumbrance.”
Further Regulation 6.2 i. , reads as follows :
“6.2) General conditions applicable for sub division,
amalgamation and Bifurcation of plot:
i. Subdivision
� The Authority reserves the right to modify the layout
submitted by the applicant / owner and may impose
27
any condition either from planning point of view or
in interest of public.
� 60% of the sites shall be released upon issue of work
order based on the draft plan. The sites to be
released are to be clearly indicated on the plan along
with the phasewise development. The release of
sites is subject to relinquishment of civic amenity
sites / parks 7 open spaces and roads to the authority
free of cost by way of a registered relinquishment
deed. 40% of the sites shall be released only after
the layout is fully developed in terms of utilities and
infrastructure. The entire process shall be as per the
government order issued in this regard.
� The approval of Layout Plan is subject to the
condition that the proposal satisfies all the
requirements stipulated under section 17 of K.T.C.P.
Act, 1961 and section 32 of BDA Act, 1976.”
And Regulation 7.1, (7.1.1 & 7.1.2 ) read as follows :
“7.1 Regulations for Residential Development Plan:
1. 10% of the land shall be reserved for Park and
Open space. The open space (park) shall be
28
relinquished to the authority free of cost and the same
may be allowed to be maintained by the local
residents association (registered), if the Authority so
desires.
2. A minimum 5% of total plot area shall be provided
for Civic amenities and the owner or developer shall
develop such civic amenities which finally shall be
handed over to the local residents association for
maintenance. The mode of such handing over shall
be decided by the authority.”
6. In the instant case the land is of the petitioners, the
development plans indicating the area earmarked for the civic
amenity sites were duly approved. The petitioners have
relinquished the said civic amenity sites in favour of the BDA.
The said civic amenities were to be developed at the cost of the
petitioners for purposes indicated in the sanctioned plans. There is
no dispute that the petitioners seek to develop the specified
amenities for the benefit of the local residents, who apparently
would have paid the price for such facility being provided as a
29
common facility for all the residents. There is hence no
consideration flowing from the BDA in seeking to impose
conditions of payment of lease rentals, a deposit or surcharge.
Property taxes in any event would be payable in respect of the
structures, which would adequately reimburse the BDA or such
other local authority which provides the general facilities such as
water supply, sewerage connections & power. ( Provided the
same are not alternatively provided for, in-house ) The BDA not
being able to resist the imposition of the above rentals, only on the
basis of the circumstance that the law requires the civic amenity
site to be relinquished in favour of the authority as a pre-condition
to development of the land and that the same stands vested in it as
on date, is unreasonable and arbitrary. The obvious requirement
that civic amenities and the parks as well as open spaces
appurtenant to any such development of land, as in the present
case on hand, being relinquished in favour of the BDA is to ensure
that same are compulsorily maintained as such and that the
developer does not dispose of the same for private profit.
30
Therefore the authority being given the discretion to decide the
mode of transfer of the civic amenity in favour of the local
residents association, after the development of the same, only
implies that the ultimate transferee is placed on terms as to the
manner in which the civic amenity shall be maintained and the
terms and conditions on which any such civic amenity could be
thrown open to the general public – if that is a possibility, or such
other safeguard being worked into the terms on which the transfer
is made to the local residents association for the limited purpose
of maintenance. In other words it would be unjust to permit the
BDA to embark on a “ lease- back” arrangement in respect of land
that belonged to the petitioners, and now to the local residents
who are the transferees of the developed land, of which the civic
amenity is only an appurtenance.
7. Therefore, in the opinion of this court the impugned
conditions demanding payment of any one time payment of lease
amount and yearly rentals or such other charges are wholly
31
unreasonable and are liable to be quashed. The petitions are
allowed as prayed for. The BDA is bound to refund any amounts
deposited pursuant to the impugned conditions imposed under the
allotment certificates, forthwith. In any event within a period of
15 days from the date of receipt of a copy of this order.
Sd/-
JUDGE
KS