Research › Browse › Judgment

Karnataka High Court · body

1989 DIGILAW 5 (KAR)

B. S. MUDDAPPA v. STATE OF KARNATAKA

1989-01-04

M.RAMA JOIS

body1989
RAMA JOIS, J. ( 1 ) THIS writ petition is presented by 30 residents of Rajamahal Vilas Extension, City of bangalore, questioning the legality of the grant of a civic amenity site in the said extension in favour of the fourth respondent - the bangalore Medical Trust. ( 2 ) THE facts of the case, in brief, are as follow: The City Improvement Trust Board ('the CITE' for short) which had been constituted under the provisions of the City of bangalore Improvement Act, 1945, had prepared a development scheme for bringing into existence an extension of the City of bangalore which came to be known as the palace Upper Orchards Sadashivangar, later came to be named as Rajamahal Vilas extension. The petitioners are all persons to whom the sites were allotted by the CITB and on which they have constructed their residential houses. In the said extension, an area facing the sankey Tank was earmarked for being developed as a low level park. By resolution dated 14-7-1976 the said site was allotted in favour of the fourth respondent - trust for construction of a nursing home and hospital. Questioning the legality of the said allotment, the petitioners have presented this petition. ( 3 ) THE plea of the petitioners in support of the challenge to the legality of the allotment is as follows: In the scheme prepared under the City of Bangalore Improvement act 1945, the site allotted to the fourth respondent was earmarked for a park. After the formation of the streets in the manner provided in the plan of the scheme sanctioned by the Government, a notification dated 3-1-1973 was issued by the State government under Section 23 of the said act. Consequent on the said notification, the entire extension came under the control of the Corporation of the City of Bangalore ('the Corporation' for short), and the Corporation has been levying tax on the house properties. In view of the said notification and the provisions of sub-section (2) of Section 23 of the said Act, all open spaces including the park area in question stood transferred to the Corporation and thereafter to the Bangalore Development authority ('the BDA' for short) which is the successor authority to the CITB under the bangalore Development Authority act, 1976, which came into force with effect from 20-12-1975. The BDA has no powers at all to dispose of the land in question. The BDA has no powers at all to dispose of the land in question. Even on the basis the ownership of the land continued to be vested in the BDA, it could not dispose of the site in the manner it has done when it was specifically earmarked for developing it as a park. ( 4 ) IN the statement of objection filed on behalf of the BDA the stand taken is as follows: It is true that in the Improvement scheme prepared by the then CITB the land in question was earmarked for developing it as a park. But it is not true that the park and other open space in the extension had been transferred to the Corporation. The notification dated 3-1-1973 on which the petitioners rely was issued under Section 23 (1) of the bangalore City Improvement Act, but the open spaces, parks etc. , had not been transferred to the Corporation, under sub- section (2) of section 23 of the Act The position continued to be the same till the BDA came into existence. Thereafter, at the instance of the bda, the Government made an order on 27-5-1976 converting the low level park earmarked in the scheme, as a civic amenity site. Thereafter, the Government also accorded sanction in its order dated 11-6-1976 for the allotment of the site in favour of the fourth respondent - Trust. The BDA proposed to grant the site in favour of the fourth respondent as it was a charitable trust desirous of establishing a nursing home and a hospital for the benefit of the general public, having due regard to the object of the trust to establish a nursing home and a hospital providing medical benefits to the poor, the sick and the suffering. The action of the BDA is in conformity with the provisions of law and the contention of the petitioners that the grant is illegal, is untenable. ( 5 ) THE State Government and the fourth respondent have taken the stand similar to the one taken by the BDA. ( 6 ) IN the light of the rival pleas, the following two questions arise for consideration: (1) Whether the land had become the property of the Corporation and therefore the allotment of land by the bda in favour of the fourth respondent is illegal and invalid? ( 6 ) IN the light of the rival pleas, the following two questions arise for consideration: (1) Whether the land had become the property of the Corporation and therefore the allotment of land by the bda in favour of the fourth respondent is illegal and invalid? (2) Even assuming that the ownership of the land had not been transferred to the Corporation, whether the action of the BDA in allotting the land, originally earmarked for a park, for construction of a nursing home and a hospital, to the fourth respondent is illegal and invalid? ( 7 ) THERE is no dispute that the land allotted to the fourth respondent was earmarked for a low level park in the scheme prepared by the CITB and approved by the state Government under the provisions of the City Improvement Act. Thereafter, the citb executed the scheme and completed the formation of streets. The provision relating to the vesting of the streets in the corporation and transfer of open spaces to the corporation are incorporated in Section 23 of the City Improvement Act. It reads:"23. STREETS ON COMPLETION TO vest IN AND BE MAINTAINED BY corporation- (1) The Government after consulting the corporation and on being satisfied that and street formed by the Board has been duly levelled, paved, metalled, flagged channeled, drained and sewered in the manner provided for in the plans of any scheme sanctioned by the Government and that such lamps, lamp posts and other apparatus as are in its opinion necessary for the lighting thereof and should be provided by the Board have been so provided, shall declare such street to be a public street, and such street shall thereupon vest or re-vest as the case may be, in the Corporation and the corporation shall thence forward, maintain, keep in repair, light and cleanse such street. (2) OPEN SPACES RESERVED FOR ventilation TO VEST IN AND BE maintained BY THE CORPORATION: Any open space reserved for ventilation in any part of the City, and provided by the Board as part of any improvement scheme sanctioned by the government shall be transferred on completion to the Corporation for maintenance at the expense of the Corporation and shall thereupon vest in the corporation. "a notification under sub-section (1) of Section 23 of the City Improvement Act was issued on 3-1-1973. "a notification under sub-section (1) of Section 23 of the City Improvement Act was issued on 3-1-1973. The said notification together with the relevant entries in the Annexure, reads: notification "in exercise of the powers conferred by sub-section (1) of Section 23 of the City of bangalore Improvement Act 1945 (Mysore Act V of 1945), the Government are pleased to declare after consulting the corporation of the City of Bangalore that all the streets formed by the Board of trustees for the improvement of the City of Bangalore in the layouts specified in column (2) of the Table annexed within the boundaries specified in column (3) thereof, having been duly levelled, paved, metalled, flagged, channeled, drained and sewered in the manner provided in the plan of the scheme sanctioned by government and that lamps lamp posts and other apparatus necessary for the lighting thereof, having been provided by the Board are public streets. Annexure of Notification No. HMA 53 (1) mnx 72 Dt. 3rd January 1973.