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Memorandum of Writ Petition
(Page No. 1 _ 15 of W.P. No. 40994 of 2002)

PETITIONERS
RESPONDENTS
MEMORANDUM OF WRIT PETITION
GROUNDS
GROUNDS IN SUPPORT OF THE INTERIM PRAYER
PRAYER
INTERIM PRAYER

IN THE HIGH COURT OF KARNATAKA BANGALORE

(Original Jurisdiction)

WRIT PETITION NO. 40994 OF 2002.

BETWEEN:

Judicial Layout Residents and Site Holders Association (Regd.)

G.K.V.K. Post,

BANGALORE 560 065,

Represented by the Board of Directors Consisting of

(a) B.V. Byra Reddy, President, No. 1362, III Cross,
Judicial Lay-out, Bangalore _65,

(b) Y.R. Jagadish, Vice-President, No. 548, 18th Main Road,
Judicial Lay-out, Bangalore-65,

(c) M. Chikkalingaiah, Secretary, No. 1816, 8th Main,
Judicial Lay-out, Bangalore-65,

(d) G.K. Nagaraja, Treasurer, No. 1730, 6th Main, 5th Cross,
Judicial Lay-out, Bangalore-65,

(e) S. D. Venkataramanaiah, Founder President and Director,
No. 1803, 8th Main Road, Judicial Lay-out, Bangalore-65,

(f) M. Shiva Murthy, Former Vice-President and Director,
No. 1430, 1st Cross, Judicial Lay-out, Bangalore _65.

(g) D.N. Kagwad, Director, No. 1185, 10th Cross,
Judicial Lay-out, Bangalore-65,

(h) Smt. Rupa Kumari, Director, No. 126, 21st Main,
Judicial Lay-out, Bangalore-65,

(i) Y.C. Bujabhalaiah, Joint Secretary and Director,
No. 990, 14th Cross, Judicial Lay-out, Bangalore-65,

(j) A. Laxman Rao, Director, No. 522, Seven hills,
23rd Cross, 18th Main, Judicial Lay-out, Bangalore-65,

(k) L.S. Raja Rao, Director, No. 516, 18th Main, 24th Cross,
Judicial Lay-out, Bangalore-65,

(l) N. Nagaraju, Director, No. 185, 25th Main Road,
Judicial Lay-out, Bangalore-65,

(m) Manjunatha Holla, Director, 13th Main,
Judicial Lay-out, Bangalore-65,

(n) Smt. Saraswati, Director, 11th Main, 8th Cross,
Judicial Lay-out, Bangalore-65, …PETITIONERS.

 AND:

[1] Bangalore Development Authority
Represented by Commissioner,
T. Chowdaiah Road, Kumarapark West,
BANGALORE. 560 020.

[2] The State of Karnataka
By its Secretary,
Housing and Urban Development Department.
M.S. Building, BANGALORE. 560 001.

[3] The City Municipal Council,
Yelahanka,
Represented by its Commissioner,
BANGALORE. 560 064

[4] The Karnataka State Judicial Department
Employees House Building Co-operative Society,
Represented by its Secretary, High Court Buildings,
BANGALORE. 560 001. … RESPONDENTS.

  MEMORANDUM OF WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA

The above named petitioner states as follows;

[1] In this writ petition, the petitioner seeks at direction to the respondents to take all necessary steps to protect, preserve and maintain the o9pen spaces in the judicial Lay-out, Bangalore Bellary Road, Bangalore _ 560 065.

[2] The petitioner is a Society registered under the Karnataka Societies Registration Act, 1960. a true copy of the certificate of registration is produced herewith and marked as Annexure-`A'[040.04] .The said society has been promoted and registered to secure the rights of the residents and site holders of the Judicial Lay-out, Bellary Road, Bangalore-65, Presently the membership of the said society is about 200. In view of the increasing irregularities and illegalities committed by the 4th respondent, which has seriously jeopardized the rights of the residents of the lay-out, by a resolution dated 6-5-2002 a true copy of which is produced herewith and marked as Annexure-`B' [040.05 ] the Executive Committee of the petitioner society unanimously resolved to prefer a writ petition. Accordingly, this writ petition is preferred on behalf of the petitioner society.

[3] The 4th respondent is a Society registered under the Karnataka Co-operative Societies Act, 1959. it was registered as a co-operative society on 11-8-1983. It is stated to have been registered with the object of acquiring lands, forming lay-out and allot house sites to its members. In furtherance of this object, the society approached the 2nd respondent to acquire certain lands under the provisions of the Land Acquisition Act. Accordingly, an extent of 193 Acres of land was acquired by the 2nd respondent and handed over to the 4th respondent. After taking possession of these lands, the 4th respondent prepared a detailed plan of the lay-out to be formed and submitted the same to the first respondent for approval. It is stated that by a resolution dated 16-11-1992 bearing No. 503/92, the first respondent approved the said plan subject to certain conditions. Accordingly, the lay-out has been formed by laying roads, leaving open spaces for parks, Civic Amenity Sites and 2048 housing sites were formed, as detailed below:

(a) 845 sites of the size 30'X 40'
(b) 70 sites of the size 30' X 45'
(c) 493 sites of the size 40' X 60'
(d) 220 sites of the size 30' X 40'
(e) 80 sites of the size 50' X 80'
(f) 104 Sites of the size 60' X 90'
(g) 39 sites of the size 80' X 120'
(h) 197 odd sites.

This information was furnished to this Hon'ble Court by the 4th respondent society in its Statement of objections in the case reported in SUBRAMAINI Vs . UNION OF INDIA _ I.L.R. 1995 Kar. 3139. Therein, it was stated that the sites have been formed after the lay-out was approved by the first respondent as per Annexure R3 produced therein .

[4] The 4th respondent specifically held out to its members before allotment of sites that the approved plan provides for formation of 11 parks and 5 Civic Amenity sites in the said lay-out. It is on the strength of the said representation that the members of the 4th respondent-society have applied for and secured sites in the layout. All the members of the petitioner-society had applied and secured sites on the basis of the representation so held out by the 4th respondent. Majority of the members of the petitioner-society have already put up constructions and are residing in this very lay-out. In the Statement of Objections referred to above the respondent No. 4 had stated that "Besides provision has also been made for meeting public amenities required for the locality such as provision for park, stadium, play grounds, hospital, temple, schools, educational institutions etc., keeping in view the norms prescribed by the B.D.A."

[5] The petitioner has been writing to all the respondents herein furnish a copy of the approved plan of the lay-out in question. However, till this day, no such copy has been supplied or made available to the petitioner. The petitioner produces herewith and marks as Annexure-`C', C1 to C3 (Colly.) [040.06][040.07] [040.08] [040.09, true copies of the representations made in that behalf. The first respondent has sent a reply in response to the said representation by its communication dated 17-06-2002, a true copy of the same is produced herewith and marked as Annexure-`D' [040.11] , intimating that by a resolution dated 16-11-1992 the authority had decided to approve the plan subject to certain conditions. The 4th respondent-society was required to pay the first respondent the estimated cost for the lay-out. The 4th respondent has not paid the said amount and it has not complied with the conditions imposed in the resolution and hence it has not issued the approved layout plan and work order to the 4th respondent. Be that as it may, the 4th respondent has consistently held out that the layout is formed in accordance with the approved plan and citing the resolution dated 16-11-1992 as the authority for formation of the layout as also for allotment of sites. This representation is made by the 4th respondent in every communication issued by it in this behalf and has also stated so before this Hon'ble Court on oath in the Statement of objections referred to earlier. In every sale deed executed by the 4th respondent-society in favour of the allottees, it has held out that the layout plan is approved by the first respondent in Resolution No. 503/92 dated 16-11-1992.

[6] The 4th respondent represented before this Hon'ble Court that the total number of sites formed in the layout was 2048. the 4th respondent, however, has not allotted and sold much more that the 2048 sites. As a matter of fact, the open spaces earmarked for Parks, Civic Amenity Sites etc., have already been allotted and construction of residential buildings are put up in about ten of those CA sites. The 4th respondent itself has represented to its General Body at a meeting held on 29th September 2002, that 49% of the 193 Acres utilized for formation of the layout has been reserved for roads, underground drainage, temple, parks and play grounds. This is evident from the statement of the 4th respondent management made to the General Body-a true copy of which is produced herewith and marked as Annexure-`E'. 49% of 193 Acres works out to 95 acres. In other words, the number of sites formed should not exceed 98 acres.

[7] In view of the fact that the 4th respondent has allotted and sold more than 2048 sites, the petitioner has been demanding the 4th respondent to disclose the details of the same and to inform as to the number of sites so formed in excess of 2048 sites and the area utilized for the said purpose, in the layout. In this behalf, several communications have been addressed to the 4th respondent _ true copies of the same are produced herewith and marked as Annexure-`F' series colly. Only on 15-4-2002 the 4th respondent has given a reply by a communication (wrongly the date has been mentioned in the communication as 15-2-2002) _ a true copy of the same is produced herewith and marked as Annexure-`G'.

[8] During the year 2000, the petitioner society sought permission of the 4th respondent to install Gouri and Ganesha idols to celebrate Ganesha Festival during that year. In response to the same, by a letter dated 28-8-2000 _ a true copy of which is produced herewith and marked as Annexure-`H', the 4th respondent had specifically mentioned that the civic amenity site bounded to the East; by 14th Main Road; to the West; site No. 969; to the North:16 the Cross and to the South : 15 the Cross, would be made available for the said purpose. It is thus clear that the entire land so described, is a civic amenity site. The petitioner has reliably learnt and believes it to true that the 4th respondent is now taking steps to convert this plot into sites and dispose of the same.

[9] In the entire lay-out, till this day, not a single plot is developed as Park or a play-ground. Not a singly plot has been made available for a stadium hospital, temple, schools, educational institutions or other civic amenities like Bus terminal, market etc. no stadium, hospital or other public office has been started till this day in the lay-out. It is thus clear that the 4th respondent has not handed over any open space to the 1st respondent or the 3rd respondent though it is statutorily bound to do so. On the other hand more than five hundred sites have been formed in these parks, play grounds and civic amenity sites by the fourth respondent and sold in favour of individuals to commercially exploit these plots. Respondent No.3 has been freely effecting change of kathas and granting building licenses in flagrant violation of its statutory duty.

[10] It is in these circumstances that two members of the 4th respondent society, by name B.R. Srinivas and P.H Basavaraj had caused a legal notice to be served on all the respondents and other authorities _ a true copy of the said notice is produced herewith and marked as Annexure-I. Besides informing the flagrant violation of the approved plan specific information was given about the nature of violation and a demand was made to take stern action against these deviations. The Notice-Annexure-J, has been served on all the respondents in the month of October 2001 itself. However, till this day, no favourable action has been taken by any one of the respondents in response to the notice. It is, therefore clear that not with standing a specific demand made in that behalf, the respondents are not inclined to take any action against the violation of the approved layout plan.

[11] The petitioner produces herewith and marks as Annexure-K a true copy of the Statement of Objections filed by the 4th respondent in W.P.No. 11211/95, before this Hon'ble Court. The petitioner also produces herewith and marks as Annexures-`L' and `M' _ true copies of two sale deeds executed by the 4th respondent specifically relying on the approved layout plan given by the first respondent by its Resolution No. 503/92 dated 16-11-1992.

[12] In view of the fact that Annexure-`H' was a notice given on behalf of the two Members of the 4th respondent-society, the petitioner respectfully prays that the said notice may be treated as demand made on behalf of the petitioner-society also. Since no action has been taken in response to the said notice, it is evident that the respondents have refused to discharge their statutory duties to preserve, protect and maintain the parks and other open spaces. Hence, this petition.

[13] The petition has not presented any other writ petition seeking similar reliefs as prayed for in this writ petition.

[14] As the petitioner has no other efficacious and alternative remedy except to approach this Hon'ble Court, it has preferred this writ petition under Art. 226 of the constitution, on the following among other:

GROUNDS 

[15] Under the Zoning of Land Rules and Regulations of the Bangalore Development Authority (G.O.NO.HUD 139 MNJ 95, dated 5.1.1995), a minimum of 25%of the total area in any layout plan should be reserved for civic amenity sites, parks ands open spaces subject to a minimum of 15% for parks and open space. The 4th respondent itself has made a categorical statement that 49% of the layout area is used for this purpose as per Annexure-E. even in its statement of objections before this Hon'ble Court, it has categorically stated on oath that provision has been made for parks stadium play-grounds, hospital, temple, schools, educational institutions etc. Under Sec. 32(5) of the Bangalore Development Authority Act, the condition precedent for sanctioning a private layout is an unconditional undertaking by the 4th respondent-society to transfer ownership of the open spaces to the B.D.A. permanently without claiming any compensation thereof. Under Sub-sec.(2) of Sec.32 thereof, every layout plan submitted for approval should provide for open spaces. Under the aforesaid Zoning Regulations, it is mandatory that the area reserved for parks, and open spaces and civic amenity sites shall be handed over free of cost to the B.D.A. under a registered relinquishment Deed before issue of work order. In the instant registered relinquishment Deed before issue of work order. In the instant case, not only formation of the layout is completed but the layout is substantially developed already. Nearly 40% of the sites allotted have already been utilized for putting up residential houses; but, even to this day, the 4th respondent has not handed over the parks, C.A. sites and other open spaces either to the first respondent or to the 3rd respondent. It is therefore, clear that there is a total violation of the mandatory requirements of the aforementioned provisions and the 4th respondent has failed in its statutory duty to do so and since it has wrongfully refused to perform the said duty, it is just and necessary that this Hon'ble Court compels the 4th respondent to perform its statutory duty through the process of this Hon'ble Court.

[16] It is a statutory duty cast on the 1st respondent under Section 32 of the B.D.A. Act, to demand and secure registered relinquishment deeds in respect of parks, civic amenity sites and other open spaces, as shown in the approved plan. The first respondent has failed to perform this statutory duty and it is, therefore, just and necessary to compel the first respondent has failed to perform this statutory duty and it is, therefore, just and necessary to compel the first respondent to perform the said duty.

[17] Now that the entire judicial layout has been included within the Municipal limits of the 3rd respondent, it is the responsibility of the 1st respondent to take possession and title deeds in respect of the open spaces from the 4th respondent and make over the same to the 3rd respondent to be protected, preserved and maintained in accordance with the provisions of the Karnataka Municipalities Act, 1964. Since the 3rd respondent has failed to perform its statutory duty to take possession of the open spaces in the Judicial Layout and to protect, preserve and maintain the same, it is just and necessary to compel the 3rd respondent to perform the said statutory duty.

[18] It is obligatory function of the 3rd respondent under Section 87 of the Municipalities Act, to remove obstructions and projections of public places and in places not being private property which are open to the enjoyment of the public under Clause (f) thereof. Likewise, it is its obligatory duty to clean all public places and all places not being private property which are open to the enjoyment of the public. This is a statutory obligation is caston the 3rd respondent even when such open spaces are not vested in the Municipal Council. In other words, whether or not the open spaces are made over to the 3rd respondent, the 3rd respondent is under a statutory obligation to preserve, protect and maintain the open spaces. Since the 3rd respondent has wrongfully refused to perform this duty, it is just and necessary to compel the 3rd respondent to perform this duty.

[19] Parks, playgrounds, other lung spaces and civic amenity sites are essential for preserving and protecting environment of the layout. They are indispensable for a beneficial enjoyment of the rights of the petitioner's members over the sites allotted to them by the 4th respondent. This right is a part of the right to life guaranteed under Art. 21 of the Constitution. By the willed disobedience to perform the statutory duties cast on the respondent, this right to life guaranteed to the members of the petitioner society is infringed and therefore, it is just and necessary to compel the respondents to perform their statutory obligations, in the interest of justice and equity.

[20] The B.D.A. is prohibited from allowing any park, playground or civic amenity sites being disposed of for any other purpose. What the B.D.A. cannot do directly, it cannot allow respondent No.4 to do and thus defeat statutory mandate under Sec.38A of the B.D.A. Act. Hence, all actions of the respondents in converting parks. Open spaces and C.A. sites into sites and transferring, registering, changing Katha, sanctioning building licences etc., in favour of individuals are null and void.

[21] Acts and omissions of the respondents in allowing the 4th respondent to deviate from the approved layout plan and commercially expeit the parks, playgrounds, civic amenity sites and other open spaces meant for beneficial enjoyment of the residents of the locality by converting them into sites and selling the same to the individuals has resulted in unauthorisedly converting the public property into private property. This is a racked act of sacrificing the public interest defeating the very mandate of the B.D.A. Act. Beside being the clear breach of rule of law, the acts and omissions of the respondents in converting parks, playgrounds, civic amenity sites and other open spaces to private property is a fraud on power and wholly male fide act. It is the essence of the legislative mandate under the Act and the Rule of Law to ensure to protect preserve and to maintain these open spaces for the purpose for which they are earmarked in the approved plan. These acts are therefore liable to be invalidated as null and void in the interest of justice and equity.

[22] Failure on the part of the 4th respondent-society to hand over the parks, playgrounds, Civic Amenity sites and other open spaces in Judicial layout to the 1st respondent and the inaction on the part of the respondents 1 and 2 in not securing possession and title deeds in respect of these open spaces is arbitrary, capricious and whimsical, violating the rights guaranteed to the petitioner under Article 14 of the Constitution of India.

 GROUNDS IN SUPPORT OF THE INTERIM PRAYER

The manner in which the 4th respondent is violating the approved layout plan gives room for a reasonable apprehension to the petitioner that if the interest of the residents of the layout is not protected, through an interim order as prayed for, not only the parks, civic amenity sites and other open paces, but even the roads and drainages may not be available to the residents in the near future. Deviation from the approved layout plan and converting the parks, civic amenity sites and other open spaces for other purpose to form house sites and put up the said open spaces to commercial purposes, would result in irreparable loss and injury, which cannot be compensated in terms of money. The petitioner has made out a prima facie case and the illegality is writ large, in the omissions and commissions of the respondents. The balance of convenience is in favour of the petitioner. Hence, the interim prayer.

 P R A Y E R

WHEREFORE, the petitioner respectfully prays that this Hon'ble Court be pleased to :

[i] DIRECT THE First respondent to produce before this Hon'ble Court the layout plan of the Judicial Layout approved in favour of the 4th respondent Society by its Resolution No. 503/92, dated 16-11-1992;

[ii] DECLARE all the actions of the 4th respondent society and any one claiming under it, deviating from the approved layout plan sanctioned by the first respondent bearing Resolution No. 503/92, dated 16-11-1992, in so far as they altered the nature of the Parks, civic amenity sites and other open spaces specified therein, as illegal, void and inoperative;

[iii] ISSUE a writ, order of direction in the nature of Mandamus directing the first respondent to take registered relinquishment deed from the 4th respondent society transferring all the Parks, civic amenity sites and other open spaces as specified in the layout plan sanctioned by it as per Resolution No. 503/92 dated 16-11-1992 and hand over possession of the same to the 3rd respondent herein, in the interest of justice and equity.

[iv] ISSUE a writ, order or direction in the nature of Mandamus directing the 3rd respondent to forth with take all necessary steps to preserve, protect and maintain the parks, civic amenity sites and other open spaces in the Judicial Layout, Bellary Road, G.K.V.K post, Bangalore-560 065, in the interest of justice and equity; and

[v] GRANT such other relief this Hon'ble Court deems fir in the facts and circumstances of this case, including an order as costs, in the interest of justice and equity;

 INTERIM PRAYER

[a] ISSUE an order of temporary injunction restraining the 4th respondent society and anyone claiming through is, from altering the nature of the land in all Parks, civic amenity sites and other open spaces As found in the layout plan approved by the 1st Respondent vide its resolution No. 503/92 dated 16-11-1992 Pending disposal of this writ petition, in the interest of Justice and equity; and

[b] RESTRAIN the 3rd respondent from issuing any building licenses or changing the Katha in respect of the sites formed in the Parks, civic amenity sites and other open spaces in the layout plan approved by the first respondent by its Resolution No.503/92 dated 16-11-1992, in the interest of justice and equity.

Bangalore.

Dated: 28-10-2002.

.-Signed..

ADVOCATE FOR PETITIONER.

[RAVIVARMA KUMAR]

Address for Service:-

Shri. Ravivarma Kumar, and J. Prashanth, Advocates,

No. 37, II Main Road, Vyalikaval, Bangalore- 560 003.

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