MULCHAND BAKHRU Vs. T.N. VAIDYA
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 10747 of 2013, Judgment Date: Dec 02, 2015
'REPORTABLE'
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10747 OF 2013
PURUSHOTHAM ... Appellant
VERSUS
STATE OF KARNATAKA & ORS. ... Respondents
WITH
CIVIL APPEAL NO. 10748 OF 2013
CIVIL APPEAL NO. 10749 OF 2013
CIVIL APPEAL NO. 10750 OF 2013
J U D G M E N T
KURIAN, J.
The appellants are aggrieved by the common judgment dated
05.09.2011 in Writ Petition No. 5428 of 2006 and Writ Petition No. 5173 of
2006 on the file of High Court of Karnataka at Bangalore. The High Court
took the view that Civic Amenity Site No. 2 has to be utilised only for the
purpose for which it was earmarked, viz., for a Bank and, hence, the
allotment of the same by the Bangalore Development Authority (hereinafter
referred to as 'BDA') to be used as a petrol retail outlet was set aside
being in violation of Section 38A of the Bangalore Development Authority
Act, 1976 (hereinafter referred to as 'Act'). The respondents in the writ
petitions, aggrieved, pursued the matter before this Court.
The appeals were initially dismissed by judgment in
'Purushottam v. State of Karnataka' dated 29.11.2013 reported in 2014(3)SCC
721. Having noticed that there were factual mistakes in the judgment of
the High Court which was upheld by this Court, by a detailed order dated
10.09.2015, the review petitions were allowed and the judgment referred to
above was recalled.
For the purpose of ready reference we shall reproduce the order
passed by this Court on 10.09.2015 as such: -
Delay in filing Review Petition No. 532 of 2014 is condoned.
These review petitions are preferred seeking review of our
judgment dated 29.11.2013 passed in Civil Appeal No. 10747 of 2013, Civil
Appeal No. 10748 of 2013, Civil Appeal No. 10749 and Civil Appeal No. 10750
of 2013.
The aforesaid appeals were filed impugning the judgment of
Karnataka High Court rendered in Writ Petition No. 5428 of 2006 and Writ
Petition No. 5173 of 2006. Those writ petitions were filed by way of
Public Interest Litigation under Article 226 of the Constitution of India
challenging the allotment of civic amenity site No. 2 to Bharat Petroleum
Corporation for establishment of a petrol pump and seeking a declaration
that the said allotment be declared null and void.
During the course of hearing, on the basis of a document, it
was noticed that though this site was initially earmarked for a 'Park',
thereafter, the user was changed to that for a 'Bank'. On the aforesaid
premise that the site was earmarked for a 'Bank', the Court proceeded to
decide as to whether it could be allotted for a petrol pump and answered
the said question in the negative. On that basis, writ petitions were
allowed and the allotment made in favour of Bharat Petroleum Corporation
Limited was set aside.
We may notice here that, in the meantime, Bharat Petroleum
Corporation Limited had allotted this site to Smt. Ramadevi for
establishment of petrol pump. Smt. Ramadevi and her husband Shri
Purushottam were, accordingly, also arrayed as respondents in those writ
petitions. Two Appeals were filed by Bharat Petroleum Corporation Limited
and appeals were also filed by Smt. Ramadevi and Shri Purushottam.
These appeals, as mentioned above, were decided by the impugned
judgment dated 29.11.2013 (which is under review) accepting the reasons
given by the High Court resulting into the dismissal of the said appeals.
In these three review petitions, which are again preferred by Bharat
Petroleum Corporation, Smt. Ramadevi and Shri Purushottam, it is sought to
be argued that the High Court was misled and the site in question was not
earmarked for 'Bank' at all. Certain documents are produced in support of
this submission that the site was, in fact, earmarked for civic amenities
and it is sought to be shown that civil amenities include petrol pump. The
documents which are produced have been obtained from the Bangalore
Development Authority under the Right to Information Act.
Since these are official documents, their genuineness, prima
facie, cannot be doubted. Further, it would be in the interest of justice
that implication/effect of these documents is considered. For these
reasons, the judgment dated 29.11.2013 requires to be recalled and the
matter needs to be examined afresh in the light of these documents. These
review petitions are, accordingly, allowed recalling the judgment dated
29.11.2013 and the appeals are restored to their original numbers, viz.,
Civil Appeal No. 10747 of 2013, Civil Appeal Nos. 10749-10750 of 2013 and
Civil Appeal No. 10748 of 2013.
We may mention that we had started hearing, with the consent of
the learned counsel for the parties, the appeals afresh on merits as well.
However, after some arguments, learned counsel appearing for Respondent
Nos. 4 to 14 requests for some time in order to verify these documents.
At request, liberty is granted to Bharat Petroleum Corporation
Limited to file additional affidavit within two weeks.
Reply thereto, shall be filed by Respondent Nos. 4 to 14 within
two weeks thereafter.
The civil appeals shall be listed after four weeks.
Interim orders to continue, in the meantime.”
Today when the matter was taken up, learned counsel appearing
for the respondents, apparently having gone through the documents, submits
that the appellants have already submitted documents referred to in the
Review Petitions before the High Court and have sought for a review before
the High Court itself and, hence, the matter be remanded to the High Court.
Shri Mukul Rohatgi, learned Attorney General appearing for the
Bharat Petroleum Corporation and learned senior counsel appearing for other
appellants submit that since the errors are apparent on the face of the
record and which have been noted from the records already available before
this Court itself at the time of hearing of the review petition, the matter
needs to be given a quietus before this Court particularly in view of the
judgment rendered by this Court.
Be that as it may, grievance essentially pertains to the
dispute as to whether the site No. 2 earmarked for civic amenity in a
Modified Layout Plan of Scheme between Hennur Road and Bana Swadi Road,
Bangalore, is for a Bank or any other civic amenity.
The Modified Layout Plan was available before the High Court as
produced by the BDA along with their statement and marked as Annexure R2.
In any case, the learned counsel for BDA submits that the Layout Plan
produced as Annexure R4 with a covering letter dated 21.12.2013 in the
Review Petition is the authenticated copy of the Plan and it is not
disputed also.
Our attention has been invited to the Layout Plan and it is
seen that in Plot No. 19 [CA2] there is no earmarked purpose whereas it is
plot No. 20 that is earmarked to be used as Bank and plot No. 21 for P&T.
Therefore, the whole basis of the contention of the writ petitioners before
the High Court is totally shaken and the same is wholly misconceived on
facts. The petrol outlet is in Plot No. 19.
Once it is seen that against the disputed plot No. 19, no
purpose as such is shown, the BDA is well within jurisdiction to allot it
for any civic amenity. There is no dispute that petrol pump is a civic
amenity coming under the definition of civic amenity in Section 2(bb)(vi)
of the Act read with the Notification dated 29.08.1990. Under Section 38A
of the Act, the only restriction cast upon the Authority is that it shall
not sell or otherwise dispose of any area reserved for public parks and
playgrounds and civic amenities, for any other purpose and if so made, such
disposition would be null and void.
Once it is seen from the Notification dated 29.08.1990 that
petrol pump is a civic amenity duly notified in terms of Section 2(bb) of
the Act, nothing prevents the Authority from allotting it for being used as
a notified civic amenity. Therefore, it has become unnecessary to consider
any other point.
In that view of the matter, there is no merit in the writ
petitions filed before the High Court. They are, accordingly, dismissed.
The civil appeals are allowed as above.
No costs.
......................, J.
[ KURIAN JOSEPH ]
......................, J.
[ ROHINTON FALI NARIMAN ]
New Delhi;
December 02, 2015.