H. Kashinath
& Ors Vs. State of Karnataka & Ors [1995] INSC 411 (21 August 1995)
Manohar
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs.Sujata V.Manohar.J.
CITATION:
1995 AIR 2510 1995 SCC (5) 647 1995 SCALE (4)769
ACT:
HEAD NOTE:
This
appeal pertains to a plot of land situated within C.A.No.19 in the Vth Block, Jayanagar,
Bangalore City. The total measurement of the site which lies between 38th Cross Road and 42nd Cross Road is 298 mtrs. x 91 mtrs. The site is
in two parts. The northern portion admeasures 91 mtrs. East to West and 165 mtrs.
North to South. It lies between 38th Cross Road and the storm water drain. The southern portion lies beyond the storm
water drain and stretches upto the 42nd Cross Road. The dispute relates to a piece of land admeasuring 91 mtrs. x 91 mtrs.
in the southern portion of this site lying between 10th and 11th main Road and
facing 42nd Cross Road.
In the
Comprehensive Development Plan framed under the Karnataka Town and Country Planning Act, 1961,
which has been published under Section 23 of this Act, the northern portion of
site No.19 has been earmarked for a park and the southern portion is earmarked
for a general purpose which is a public or semi-public purpose. We are
concerned with the portion which is lying in the southern part of this site
which is earmarked for a public or semi-public purpose.
At the
request of the fourth respondent, namely, Karnataka Chalana Chitra Kalavidara Sangha,
the Corporation of the City of Bangalore, second respondent herein, passed a
Resolution dated 30.12.1983 resolving to grant the above plot admeasuring 91 mtrs.
x 91 mtrs. to respondent No.4 on a lease at an annual rent of Rs.500/-. The
Government of Karnataka accorded sanction for the same by its Order dated
10.5.1984 under which it granted approval for the lease for a period of 20
years on an annual lease rent of Rs.750/-.
This
was, however, modified by Government Order dated 5.10.1984 enhancing the period
of the lease to 50 years and reducing the annual lease rent to Rs.500/-.
Accordingly, by a Deed of Lease dated 11th of May, 1986, the second
respondent-Corporation granted to the fourth respondent a lease of the said
plot for the purpose of building a theatre for the development of drama or
films and in order to impart training to artists. The terms and conditions of
the lease are set out in the Deed of Lease. The appellants before us, on coming
to know of the said lease, filed a public interest writ petition before the
High Court of Karnataka challenging the allotment of this plot of land to the
fourth respondent.
They
contended that the said plot which is situated in the southern portion of site
No.19 is reserved for a public or semi-public purpose or for a civic amenity;
and that granting of lease to the fourth respondent is not for the purpose for
which the said site is earmarked under the Comprehensive Development plan. The
High Court, however, has rejected the writ petition. Hence the present appeal
has come before us for consideration.
Respondent
No.4 is a society registered under the Karnataka Societies Registration Act.
The objects of the fourth respondent-Association as set out in clause (3) of
the Memorandum of Association are as follows:
"(a)
to promote the interests of the KANNADA FILM ARTISTS (Actor and Actresses) in
the State of Karnataka and to work in harmony with such similar societies
elsewhere in India;
(b) to
promote and protect the rights and privileges of the Film Artists as against
outsiders as well as between and among themselves;
(c) to
provide basic and other amenities to the Film Artists either in the course of
their profession or otherwise;
(d) to
provide financial and other facilities to the family members of the Film
Artists at times of distress due to death or any other disablement of such
members;
(e) to
provide financial and other benefits to the members of Film Artists to
prosecute education of their children;
(f) to
build and acquire auditorium to display shows and concerts for the benefit of
the SANGHA as well as to raise funds to be utilised for achieving the objects
mentioned herein and without involving any activity for profit;
(g) to
raise funds through regular subscriptions from members, donations from members
and outsiders, to conduct benefit shows, stage shows and other concerts for the
above purposes;
(h) to
acquire moveable and immoveable properties, to acquire income bearing
securities so as to raise regular incomes for the society;
(i) to
settle and compromise disputes, if any, among the members or between the
outsiders and members;
(j) to
borrow funds for the fulfilment of the above objects;
(k) to
establish or run any school for diffusing necessary technical knowledge for the
benefit of the SANGHA".
From
the Statement of Objects and Reasons, it is clear that the fourth respondent-Association
has been formed basically to promote the interests of the Kannada film artists
and to protect and promote their rights and interests. One of the objects of
the Association is to build or acquire an auditorium to stage shows and concerts
for the benefit of the fourth respondent as well as to raise funds to achieve
the objects of respondent No.4. The objects also include establishment and
running of a school for imparting the necessary technical skill and knowledge
for the benefit of the members of the fourth respondent. These purposes can
hardly be considered as either public or semi-public purposes. The fourth
respondent-Society is essentially a society to promote the interests of its
members who are film artists. Undoubtedly, the objects are laudable but they
cannot be considered as objects which fall under the category of a public or
semi-public purpose.
The
grant of the lease is for the purpose of building a theatre for the purpose of
giving training to film artists and for the purpose of development of drama and
films. It was stated before us by learned counsel for the fourth respondent
that the fourth respondent proposes to start a training school for film artists
in the structure which is to be constructed on the leased plot. It was also
stated that the theatre to be constructed can be given to any other organisation
or individual for use. We presume that this would be on payment of hire charges
and it would not be a free use, since the fourth respondent is essentially an organisation
for the benefit of film artists and its avowed object is to raise funds and utilise
them for the benefit of film artists. The lease in question, therefore, is not
for a public or semi-public purpose. It is purely for the benefit of the fourth
respondent.
In
this connection out attention has been drawn to the Building Bye-Laws of 1983
framed by the Corporation of the City of Bangalore, the second respondent. Schedule I of these Bye-Laws deals with
land-use classifications and occupancies (or uses) permitted. paragraph 1.2.7
deals with public and semi-public uses. Paragraph 1.2.7.1 enumerates uses that
are permitted under this category. These are:
Government
Administration Centres, Secretariates, District Offices, Law Courts, Jails,
Police Stations, Governor's Residency and Institutional Offices, Educational,
Cultural and Religious Institutions including Library, Reading Rooms and Clubs.
Among the uses which are permitted are "cultural institutions like
community halls, opera houses etc. of a pre-dominantly non-commercial
nature". It also includes among the uses permitted, parks and play
grounds. Can we consider the allotment of this plot to respondent No.4 as
allotment for a public or semi-public use as described in the Bye-Laws?
Although these Bye-Laws do not appear to have been pointed out to the High
Court, they have been pointed out to us. Unfortunately, even these Bye-Laws do
not help respondent No.4. First of all respondent No.4 cannot be described as
an educational, cultural or religious institution. It is essentially a society
for the promotion of interests of film artists. Secondly, what is being
constructed is not a community hall. What is being constructed is a theatre to
train artists and stage plays or show films in that connection along with a school
for training artists. It is nowhere stated that the theatre would be open to
the public at a nominal cost, or that the fourth respondent will not make
profits out of running the theatre, or hiring it out to other organisations or
individuals. In fact, one of the avowed aims of respondent No. 4 is to earn
income which can be utilised for the objects of the Association. In the
circumstances, it is difficult to accept the contention of the respondents that
the allotment of this plot is for a public or semi-public purpose.
The
appellants also contended that the lease was not for the purpose of providing a
civic amenity. They sought to draw support from the definition of `civic
amenity' under section 2(bb) of the Bangalore Development Authority Act of
1976. Section 2(bb) although it was introduced in 1988, is given effect from
21.4.1984 i.e. a date prior to the execution of the lease in favour of the
fourth repondent.
Under
Section 2(bb) `civic amenity' is defined as follows:
Civic
amenity means:
"Section
2(bb):/ (i) a market, a post office, a Telephone Exchange, a Bank a Fair price
Shop, a milk Booth, a Dispensary, a Hospital, a Pathological Laboratory, a
Maternity Home, a child care Centre, a Library, a Gymnasium, a Bus stand or a
Bus Depot;
(ii) A
Recreation Centre run by the Government or the Corporation;
(iii)
A Centre for educational, social or cultural activities established by the
central Government or the state Government or by a Body established by the
Central Government or State Government;
(iv) A
Centre for educational, religious, social or cultural activities or for
philanthropic service run by a cooperative society registered under the co-
operative Societies Act, 1959 (karnataka Act 11 of 1959) or a Society
registered under the karnataka Societies Registration Act, 1960 (karnataka Act
17 of 1960) or by a Trust created wholly for charitable, educational or
religious purposes;
(v) A
Police Station, an area office or a service station of the Corporation of the
Bangalore Water Supply and Sewerage Board or the Karnataka Electricity Board;
and (vi) such other amenity as the Government may by notification,
specify".
The
portion relevant for our purposes is sub-section (iv) which deals with a centre
for educational, religious, social or cultural activities or for philanthropic
service run, inter alia, by a society registered under the Karnataka Societies
Registration Act, 1960. The activities of the fourth respondent, in our view,
would not fall under any of these categories. They are activities of a very
specific nature aimed at imparting training and promoting the welfare of film
artists. They are not activities which can be generally classified as
educational, social or cultural activities. Under section 38-A of the Bangalore
Development Authority Act, there is a prohibition against selling or otherwise
disposing of any area reserved for public parks and play grounds and civic
amenities for any other purpose; and any disposition so made shall be null and
void. The appellants also drew our attention to Section 16(1) of the Bangalore
Development Authority Act of 1976. Under Section 16(1), every development
scheme shall provide for the reservation of not less than 15% of the total area
of the lay out for public parks and play grounds and an additional area of 10%
of the lay out for civic amenities. They contend that the area in question
falls within this reservation and hence should not be used for any other
purpose. In the absence, however, of any relevant data showing that this plot
is within this minimum reservation we are not examining this contention of the
appellants. In any view of the matter, since the plot is reserved under the
comprehensive Development plan for a public or semi-public purpose, the lease
in favour of respondent No. 4 cannot be upheld since it is in violation of the
purpose for which the site has been earmarked.
It was
contended before us by the respondents that in the case of Jagdish v. Bangalore
Development Authority (judgment dated 7th of January, 1990 in Writ Appeal No.
2781 of 1990 before the High Court of karnatka, the Division Bench consisting
of Justice S. Mohan, Chief justice, as he then was, and Justice Shivraj Patil)
allotment of a plot of land in the same southern portion of this very site for
the construction of a community hall by the Municipal Corporation of Bangalore
City was upheld. This was also a public interest litigation challenging the
allotment of the plot for the construction of a community hall. The challenge
was negatived. That plot is not the same plot as the present plot. However,
this plot is also situated within the same southern portion of Survey no. 19
which has been reserved for a public or semi-public purpose under the
Comprehensive Development plan. In the case before the Karnataka high Court in
the above appeal, however, the Corporation of the City of bangalore proposed to construct a community
hall in a portion of the said area at a cost of Rs. 9 lakhs for the benefit of
the public. This was upheld as a public purpose and the construction of a community
hall by the Corporation of the City of Bangalore was considered as a civic amenity.
The
present lease, however, is for a purpose which is altogether different.
Therefore, the respondents cannot derive any support from the above case. On
the contrary, it is clear that in the above case also the High Court has upheld
the contention of the appellants that the site in question, namely, the
southern portion of C.A. No. 19 is reserved for a public or semi-public purpose
under the Comprehensive Development Plan.
In
view thereof, the present appeal is allowed. The said lease in favour of the
fourth respondent is set aside.
The
respondents are restrained from carrying out any construction activity on the
said open space allotted to the fourth respondent under the said lease deed. In
the circumstances, however, there will be no order as to costs.
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