Residents Welfare Association vs The Karnataka Housing Board

Ashok B. Hinchigeri, J.—The petitioner association is seeking a writ of mandamus to the 1st and 2nd respondents to enable the 3rd respondent for developing the civic amenity sites bearing Nos. 48, 48A, 49 and 49A situated at 4th phase, Yelahanka New Town, Bangalore, formed by the Karnataka Housing Board, as a public park only. It has also sought the quashing of the allotment of civic amenity site No. 49A in favour of the 4th respondent and the resolution dated 06.06.2009 amending the Comprehensive Development Plan (CDP).

Sri N.G. Sridhar, learned counsel for the petitioner submits that petitioner association is formed for safeguarding the interests of the residents of the locality. To buttress his submission that the petitioner association has the litigational competence to file the PIL, he relies on a decision of the Apex Court in Bangalore Medical Trust Vs. B.S. Muddappa and others, . He submits that once an area is earmarked for the purpose of a park, it cannot be converted into a civic amenity site. Even if it has to be converted, it has to be only with the approval of the Government. In the instant case, there is no such conversion, much less approval from the Government, so contends learned counsel. In this regard, he complaints of the violation of the requirements contained in Sections 23 and 24 of the Karnataka Housing Board Act, 1962, (for short ''the Act''). The said provisions are extracted herein;

" 23. Variation of programme by Board after it is sanctioned.- The Board may, at any time, vary any programme or any part thereof included in the programme sanctioned by the State Government:

Provided that no such variation shall be made if it involves an expenditure in excess of twenty percent of the amount as originally sanctioned for the execution of any housing scheme or land development scheme included in such programme or affects its scope or purpose."

"24. Sanctioned housing schemes and land development schemes to be executed.- (1) After the programme has been sanctioned and published by the State Government under Sections 20 and 21, the Board shall, subject to the provisions of Section 23, proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme.

(2) The Board shall not execute any housing scheme, land development scheme and labour housing scheme unless the same has been sanctioned by the State Government."

Sri. Nanjunda Swamy, learned counsel for the 1st respondent submits that Annexure-A is only a survey sketch. He submits that the petitioner is not justified in construing the same as an approved plan. He submits that the civic amenity sites in question were never earmarked for any park purpose. In the plan approved on 18.12.1998, the sites in question are shown as civic amenity sites only.

Sri. S.K.V. Chalapathy, learned Senior Counsel appearing on behalf of the 5th respondent submits that the petitioner had applied for the allotment of the very same site, which is now allotted to the 5th respondent.

The submissions of learned counsel have received our thoughtful consideration.

The party espousing a public cause has to approach this Court not only with clean hands but also with clean heart. It is not in dispute that the petitioner association has applied for the allotment of site in question for constructing a community hall. If the sites in question were park area, the petitioner-association could not have applied for its allotment. That apart, filing of one such application is not disclosed in the memorandum of writ petition.

Despite all these, even assuming that the petitioner has the litigational competence, no good grounds are made out for invalidating the impugned allotment. Though the provisions contained under Sections 23 and 24 are brought to our notice, it is not demonstrated as to how they are violated in the instant case. The areas in question were never shown as park in any official records. For the first time in the plan approved on 18.12.1998, they are set apart as civic amenity sites. The provisions contained in Sections 23 and 24 deal with the varying a programme or housing scheme or land development scheme. It is also profitable to refer to this Court''s interim order dated 03.03.2011. The relevant portion of the said order is extracted hereinabove.

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A perusal of the land use analysis reveals, that for parks and open spaces, an area of 40,096 hectares has been reserved, which accounts to 15.28% of the total area of the layout. The said plan also reveals, that site Nos. 49 and 49A were reserved as CA sites.

If the factual position, depicted in the opening paragraph of the instant order, is not repudiated by cogent material/documents, the factual position depicted hereinabove, shall be accepted as final for determination of the present controversy."

The perusal of the aforesaid extracted order reveals that site Nos. 49 and 49A were reserved as civic amenity sites. No documents whatsoever are produced by the petitioner to show that they were reserved for park purpose.

The word programme'' used in Section 23 is defined in Section 2(n) of the said Act as we annual housing programme and land development programme prepared by the Board u/s 19. It has no application for reserving site for civic amenity purpose.

The petitioner''s plea to treat Annexure-A itself as the approved plan does not lead it anywhere, as the same is not certified or authenticated by any person or authority.

In the result, both on the ground of non-disclosure of material information and as there is no legal impediment in reserving the sites in question as civic amenity sites and allotting one such site to the 5th respondent, we dismiss this petition. We notice with concern that so much of strain is put on the administrative machinery of the Government, Housing Board, BBMP and BDA and that the petition is lacking not only in merits but also in bona fides. Besides, because of the interim order of stay obtained by the petitioner, the construction of 150 bedded hospital by ''the 5th respondent is delayed. The 5th respondent has to unnecessarily bear the escalation in the cost of constructing the hospital. The development of infrastructure is delayed. The residents of that locality, for no fault on their part, are also denied of the hospital facilities between 2008 and 2014. We, therefore deem it just and necessary to dismiss this petition imposing cost. The petitioner shall pay by way of cost of Rs. Rs. 10,000/- to each of the six respondents, within a period of one month.