1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 05th DAY OF MARCH 2013

BEFORE:

THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

WRIT PETITION Nos.5445-5455 OF 2012 (BDA)

BETWEEN:

1. Sobha Developers Limited,

A company incorporated under the

provisions of Companies Act 1956

having its registered office at

Sarjapur – Marthahalli Outer Ring

Road (ORR), Devarabisanahalli,

Bellandur Post, Bangalore – 560 103.

Represented by its Authorized Signatory,

Sri. Vijayakumar .G Bagoji.

2. Sobha Innercity Technopolis Private

Limited, a Company incorporated

under the provisions of Companies Act 1956,

having its registered office at

No.E-106, Sunrise Chambers,

No.22, Ulsoor Road,

Bangalore – 560 042,

Represented by its Authorized Signatory,

Sri. Vijayakumar G.Bagoji. …PETITIONERS

(By Shri. Madhusudhana R.Naik, Senior Advocate for Shri.

Venkatesh P.Dalwai, Advocate )

2

AND:

1. The State of Karnataka,

Department of Urban Development

and Town Planning,

Vikasa Soudha, Bangalore – 560 001,

Represented by its Secretary.

2. The Bangalore Development Authority,

No.1, T. Chowdiah Road,

Kumara Park West,

Bangalore – 560 002,

Represented by its Commissioner.

3. Sobha Ameshyst and Sobha Adamus

Apartment Owners Welfare Association,

Sy.No.184, 185 and 187,

Kannamangala Village,

Bidarahalli Hobli,

Bangalore,

Represented by its President and

Secretary.

4. Sobha Althea and Sobha Azalea,

Apartment Owners Welfare Association,

Sy. No.41/1, 41/2 and 55/2,

Harohalli Village,

Yelahanka Hobli,

Bangalore North Taluk,

Bangalore,

Represented by its President and Secretary.

5. Sobha Lotus Villa,

Owners Association,

Sy. No.61/2, Kundalahalli Village,

3

K.R.Puram Hobli,

Bangalore East Taluk,

Bangalore, Represented by its President

and Secretary.

[cause title amended

as per the order dated 10.12.2012]

…RESPONDENTS

(By Shri. K. Krishna, Additional Government Advocate for

Respondent No.1

Shri. V.B. Shiva Kumar, Advocate for Respondent No.2

Shri. P.S. Rajagopal, Senior Advocate for Shri. Madhukar

Deshpande, Advocate for Respondent Nos. 3 to 5 )

*****

These Writ Petitions are filed under Articles 226 and 227 of

the Constitution of India, praying to quash item No.7,9,10 and 11

and condition nos. 1, 2 and 3 of allotment letters dated 3.1.2012,

second respondent in No.451 to 455 produced at Annexure-G, H,

J, K and L respectively, in the interest of justice and equity and

etc;

These petitions, having been heard and reserved on

11.01.2013 and coming on for Pronouncement of Orders this day,

the Court delivered the following:-

O R D E R

The facts of the case are as follows:

The petitioners are engaged in the business of Real

Estate Development and have jointly preferred these writ

petitions raising several common questions of law.

4

The petitioners have furnished details of their

unquestionable presence in the business and their track record.

The petitioners claim that during the period 2006 to 2010, they

had developed five residential group housing projects namely,

a) Sobha Althea & Azalea, b) Sobha Adamus & Amethyst, c)

Sobha Chrysanthemum and d) Sobha Ruby & Ruby Platinum,

and had developed a layout project, namely, e) Sobha Lotus.

This was as per the plans sanctioned by the second respondent,

the Bangalore Development Authority.

It is stated that after such sanction of plans, as

required under law the petitioners had executed

Relinquishment deeds in respect of civic amenity sites, open

spaces and park areas in respect of the above projects as per the

sanctioned plan, in favour of the second respondent. The

second respondent is the Planning Authority under the

Karnataka Town and Country Planning Act, 1961 (hereinafter

referred to as ‘the KTCP Act’ for brevity). In terms of Section

67 of the Bangalore Development Authority Act, 1976

5

(hereinafter referred to as ‘the BDA Act’ for brevity), it has

framed the Revised Master Plan 2015, (hereinafter referred to

as the ‘RMP 2015’ for brevity) which was duly approved by

the State Government on 22.06.2007. That under the RMP

2015, the BDA incorporated a mode of disposal of Civic

amenity sites, open spaces and park areas for the purpose of

development by the owner or developer, which ultimately was

to be handed over to the Local Residents Association or group,

for maintenance. The petitioners contend that after completion

of the construction in the above said five residential projects,

they had requested the BDA on several occasions, the last of

which was on 9.7.2010, for re-allotment of the civic amenity

sites out of the area relinquished to it for providing amenities

for the benefit of residents, while abiding by the process and

procedures in terms of RMP 2015. The said representation

was kept pending without any response. Therefore, the

petitioners were constrained to file a writ petition before this

Court in W.P.No.31663-667/2011 which was ultimately

6

disposed of by an order dated 8.9.2011, in terms of an order

passed in W.P.No.12689/2011, dated 13.07.2011. This Court

had held in those petitions, that the Bangalore Development

Authority (Allotment of Civic Amenity Sites) Rules, 1989

(hereinafter referred to as ‘the 1989 Rules’, for brevity), were

not applicable in considering the representation of the

petitioners and directed the BDA to consider the representation

made by the petitioners for allotment of the civic amenity sites

in terms of Regulation 7 of the RMP 2015. Therefore, the

petitioners had again made a request on 16.09.2011 to the BDA

to comply with the directions issued by this Court. The BDA

had issued allotment letters on 3.1.2012, and on other dates,

and allotted 11 civic amenity sites, however, contrary to the

mandate of RMP 2015 and the specific direction issued by this

Court. The BDA had invoked the 1989 Rules and incorporated

certain conditions such as a fixed period of lease for 30 years,

payment of lease amount in a lumpsum or in yearly

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installments and fixation of annual rents, etc., which are not at

all contemplated in RMP 2015.

The petitioners claim that they have completed the

residential projects. The BDA has also issued occupation

certificates in respect of the various apartments and other units

and the petitioners have also executed sale deeds in favour of

third party purchasers of such units from 27.08.2010 onwards

and in those sale deeds and other agreements, the petitioners

have committed themselves to certain contractual obligations

for providing certain civic amenities on sites which were to be

allotted by Respondent No.2 and have also agreed to develop

the same at their own cost and hand over the same to

associations which would undertake the maintenance of the

common areas and the civic amenities in the respective

projects as they represent the ultimate beneficiaries. The

petitioners had then made a request to the BDA seeking

sanction of plan for construction of the civic amenities, as per

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letters dated 31.01.2012 onwards. The measurement of the

civic amenity sites pertaining to the projects is as hereunder:

Request made for Plan Sanction in CA Sites

Projects CA sites

(Sq.mt.)

Sobha Althea/ Azalea

Sy.No.41/1, 41/2 and 45/2 of Harohally,

Yelahanka Hobli, Bangalore North Taluk,

Bangalore

1914.576

Sobha Chrysanthemum

Sy.No.98/1, 98/2, 99/1, 99/3 of

Thanisandra, K.R. Puram Hobli,

Bangalore

East Taluk, Bangalore.

3785.24

Sobha Adamus Amethyst

Sy.No.184, 185, 187 of Kannamangala,

Bidarahalli Hobli, Bangalore East Taluk,

Bangalore.

2377.97

576.16 Sobha Lotus

Sy.No.61/2 of Kundalahalli Village,

K.R. Puram Hobli,

Bangalore East Taluk, Bangalore.

600.96

9

It is the case of the petitioners that in view of their

contractual obligations, the resident associations are exerting

pressure on the petitioners to develop the civic amenity sites, as

their members are reluctant to occupy the apartments without the

civic amenities being provided and those who have already

occupied the apartments notwithstanding that the civic amenity

sites are not developed, are even more agitated and are threatening

legal action against the petitioners. This situation has been

brought about for no fault of the petitioners. In that, the

petitioners have not proceeded to develop the civic amenity sites

in the light of extraneous conditions having been imposed by the

BDA, dehors the RMP 2015. It is the imposition of such

conditions that is under challenge in these writ petitions.

2. The learned Senior Advocate, Shri Madhusudan R. Naik,

appearing for the learned counsel for the petitioners contends that

the BDA has no power or jurisdiction to impose a condition as

regards the period of lease and to claim lease rentals under the

10

RMP 2015 while acting in its capacity as the Planning Authority

under the KTCP Act. Therefore, the impugned conditions are

illegal and without jurisdiction. Attention is drawn to Regulation

7.1.2 of RMP 2015 which reads as follows:

“Regulation 7.1.2:

A minimum 5% of total plot area shall be provided

for civic amenities and the owner or developer shall

develop such civic amenities which finally shall be

handed over to local residents association for

maintenance. The mode of such handing over shall

be decided by the Authority.”

From a reading of the above, the learned Senior Advocate would

point out that about 5% of the total plot area to be reserved for

civic amenity sites which is to be developed by the builder and to

be handed over to the local residents association for maintenance.

From this, it would follow that the role of the Planning Authority

and its intervention is contemplated only after the builder develops

the civic amenity site and when it is to be handed over to the local

residents association in deciding the procedure for transfer from

11

the developer to the local residents association. It does not

authorise the BDA to impose conditions such as the period of

lease, the lease rentals, etc. It is also pointed out that under the

amended Section 67 of the BDA Act, 1976, the BDA is the

Planning Authority for the purposes of the KTCP Act. Section

81(b) under the said Act empowers the BDA to act as the local

Planning Authority, thereby exercising all powers under the

KTCP Act. While discharging the functions as the Planning

Authority, the BDA has no power to invoke the provisions of the

1989 Rules and impose conditions, which are not at all

contemplated under the RMP 2015, or under the KTCP Act, 1961.

Notwithstanding that the BDA discharges duties of dual

authorities under the independent statutes, it is not contemplated

in law that while exercising power under one Act, the said

authority could invoke the provisions of the other as though there

was an amalgamation of such power. The exercise of power

under the said statutes remains distinct and independent.

Therefore, the imposition of any such conditions while applying

12

RMP 2015 by recourse to the 1989 Rules, is clearly without

jurisdiction. The circumstance that the BDA has chosen to

impose such conditions by recourse to a hybrid procedure as

above, in spite of this Court having issued a specific direction as

to the BDA being required to apply the RMP 2015 without

reference to the 1989 Rules, is hence, an affront to this Court and

is therefore liable to be quashed.

3. The learned counsel for the BDA on the other hand

contends that it is not in dispute as to the petitioners having

executed the Relinquishment Deeds in respect of the civic amenity

areas and open spaces and park areas. The BDA being the

Planning Authority under the provisions of the KTCP Act and

having framed the RMP 2015, duly approved by the State

Government, is also not in dispute. RMP 2015 provides for the

mode of disposal of the civic amenity sites. Clause 7.1 of the

RMP 2015, provides for 10% of the land reserved for parks and

open spaces. The open spaces and parks relinquished in favour of

13

the authority free of cost may be allowed to be maintained by the

local residents’ association, if the authority so decides. It is

contended that the RMP 2015, is only a notification. The

petitioners cannot seek any benefit under the same. On the civic

amenities, open spaces and park areas vesting with the BDA by

virtue of the same having been relinquished in its favour it will

necessarily have to follow the procedure prescribed under the

1989 Rules which govern the field as regards the manner in which

the civic amenity sites shall be allotted, and would override any

notification issued under the KTCP Act. Even the notification

issued under the KTCP Act contemplates that the mode of

handing over shall be decided by the authority. This affords

adequate discretion to the authority to prescribe modalities of

handing over of the same. The letters of allotment of the civic

amenity sites that have been issued to the petitioners, are not

issued under the provisions of the RMP 2015 but they are issued

under the provisions of the 1989 Rules. It is not incumbent on the

authority to apply the RMP 2015 or the provisions of the KTCP

14

Act for purposes of collection of the lease amounts. Hence, it is

contended that the petitions lack merit. It is incidentally also

canvassed that the BDA Act defines civic amenity which may be

allotted in accordance with the provisions of the allotment of sites

rules, which contemplates the imposition of conditions in terms of

the lease deed. So also, the 1989 Rules provide for allotment and

prescribes the eligibility criteria and the selection of an institution

for leasing out the civic amenity sites. Therefore, when the 1989

Rules continue to remain on the statute book, the authority is

enabled to invoke the same in exercise of its power thereunder.

4. The learned Senior Advocate Shri Naik, by way of

rejoinder, would submit that in the first instance, without

prejudice to the case of the petitioners, the petitioners were

directed to deposit one year’s rentals as indicated by the BDA,

subject to the result of the writ petitions. Such rentals have been

deposited in respect of four projects and the BDA has in turn

sanctioned the plan with respect of the civic amenity sites to be

15

developed by the petitioners and handed over to the residents

association. Regulation 7.1 that provides for regulations for

residential development plan and 7.1.1 and 7.1.2, 10% of the land

shall be reserved for parks and open spaces, which is to be

relinquished to the authority free of cost and which may be

allowed to be maintained by the local residents’ association, if the

authority so desires. A minimum of 5% of the total plot area shall

be provided for civic amenity sites. The petitioners have

relinquished 15% of the total plot area in terms of the above

regulations in all its five projects. Therefore, after coming into

force of the RMP, 2015 with effect from 25.06.2007, the

petitioners had been requesting the BDA to release the land to

develop the civic amenity sites which is ultimately to be handed

over to the local residents’ association for maintenance. Under

RMP, 2015, it is the builder who is compulsorily required to

develop the civic amenity sites free of cost and hand over the

same to the local residents associations who are the ultimate

beneficiaries of the developed civic amenities. It is pointed out

16

that this court has declared the position of law in this regard, in

that , the 1989 Rules not being attracted and the totally different

purpose and object of the introduction of the RMP 2015. While

also holding that there is indeed no conflict between the two, in

deciding the writ petitions as at Annexures C & D to the petitions.

The BDA having accepted the findings, as the said Orders have

attained finality, is estopped from contending otherwise. There

can be no doubt as is evident from the allotment letters now issued

in respect of the civic amenity sites that the same are issued with

reference to the RMP 2015. Having regard to the finding of this

court , the BDA is not justified in dismissing the RMP 2015, as a

mere “notification” over which the 1989 Rules, purportedly,

prevail.

The claim of the BDA that by virtue of the relinquishment

deeds executed by the petitioners, it has gained the absolute

authority to impose any conditions, is misconceived. As the

development of the civic amenity sites is entirely at the cost of the

petitioners and the ultimate beneficiaries being the local residents

17

associations, there is no justification in fact or in law for the BDA

to impose any such obligation of payment of lease rentals or other

charges. This would amount to nothing short of extortion. The

petitioners in any event do not stand to gain any benefit from the

allotment of the civic amenity sites.

It is asserted that it is Regulation 7.1.2 of RMP 2015 which

is relevant and a plain reading of the same would indicate that

there are four stages that are contemplated in the transfer of civic

amenity sites.

a) A minimum of 5 % of total plot area shall be provided

for civic amenities.

b) The owner or developer shall develop such civic

amenities.

c) The developed civic amenity site shall , ultimately, be

handed over to the local residents associations.

d) The mode of such handing over shall be decided by the

authority.

18

In deciding the “mode of handing over”, there is no scope

for the BDA to act under the 1989 Rules, while exercising its

authority under the RMP 2015. In any event RMP 2015 does not

contemplate the imposition of lease rentals or the execution of a

lease deed. The development of the civic amenity site by the

developer and handing over to resident associations is not a

scenario contemplated under the 1989 Rules.

5. In the light of the above contentions, it is to be noticed at

the outset that the controversy has been largely considered and an

opinion expressed by this court that the BDA cannot apply the

1989 Rules in acting under Clause 7.1.2 of the RMP 2015 (which

is the Clause relevant for the purposes of this case.) This court by

its Order dated 13-7-2011, passed in W.P.No.12689/2011, M/s

Golden Gate Properties Ltd. Vs. State of Karnataka & another, has

expressed thus :

“Insofar as 5% of the area provided for civic

amenities is concerned, the developer has to develop

the civic amenities and thereafter, the same has to be

19

handed over to the local residents association for

maintenance. The mode of such handing over has to

be decided by the Authority i.e., the BDA.

Therefore, representations have been made in that

regard both by the developer as well as the

Association to permit 10% of the park and open

space which has been relinquished to the BDA for

permission to maintain the same by the Association

and further a request has also been made for the

development of 5% of the Civic Amenities Areas so

that the same could be handed over to the local

residents’ association for maintenance. While

considering the said representations, the BDA has

applied the Rules of 1989, which in my view, are not

applicable, having regard to the fact that the

regulations and particularly Regulation 7.1 are clearly

specific and they being approved by the State

Government would have an overriding effect on the

1989 Rules. The 1989 Rules deals with the allotment

of Civic Amenity Sites to various categories of

persons mentioned in the said Rules on lease basis for

the purpose of providing Civic Amenities, subject to

certain terms and conditions. The expression Civic

Amenity Site is defined in Clause ‘b’ of Section 2 to

20

mean an area marked for civic amenity in a layout

formed by the authority earmarked is not a private

layout approved by the authority and relinquished to

it.

11. The object of the Karnataka Town and

Country Planning Act, 1961 is to provide for the

regulation of planned growth of land use and

development and for the making and execution of

town planning schemes in the State of Karnataka.

Under the Act what is envisaged is to create

favourable conditions to provide full civic and social

amenities for the people of the State and to improve

existing recreational facilities and other amenities

contributing towards plan, use of lands and to

generally promote standards of living.

‘Development’ has been defined in Sub-Clause (1-c)

of Section 2 of the Act. Under Section (3-b) ‘Master

Plan’ is defined to mean a plan for the development

or re-development of the area within the jurisdiction

of the planning authority. ‘Planning Authority’ is

defined in Sub-Section (7) of Section 2 which refers

to Bangalore Development Authority as far as local

planning area comprising the City of Bangalore is

21

concerned. Preparation of Master Plan is envisaged

under Section 9 of the Act, while Section 10 deals

with declaration of intention for making Master Plan.

Contents of the Master Plan is stated in Section 12 of

the Act while the procedure for approval of the

Master Plan is enunciated in Section 13. The Zoning

Regulation for Bangalore was approved by

Government Order dated 25.6.2007, popularly called

the Revised Master Plan-2015 which applies to the

Bangalore Metropolitan Area also defined as the

Local Planning for the City of Bangalore and its

surroundings as declared under Karnataka Town and

Country Planning Act, 1961 and the Authority i.e.,

BDA has certainpowers and duties with regard to the

enforcement of the Master Plan-2015. The Revised

Master Plan-2015 has to be read in terms of the

relevant planning district plans in the matter of

permissible land uses within the zone and the

respective regulations for land use to achieve orderly

growth. The entire Local Planning Area for the city

of Bangalore has been divided into three main Rings

and the classification of land use zones are also given

including public utilities and Park and open space.

Having regard to the fact that the zoning regulations

22

for Bangalore Local Planning Area is prepared in

terms of Section 12 of the Karnataka Town and

Country Planning Act and the Revised Regulations

have been adopted by Government Order dated

25.6.2007, the same would be applicable in respect of

Group Housing since it is the BDA which is the

Authority which has to grant sanction for Group

Housing Plan.

12. Thus, Revised Master Plan-2015 is a

document which envisages a compact balanced plan

and equitable, urban growth for the city. Zonal

Regulations are an integral part of the Revised

Master Plan-2015 and are required to be read with the

proposals for land use plans.

13. Chapter 7 of the Revised Master Plan-

2015 deals with regulations for residential

development plans and non-residential development

plans. Chapter 7.1 deals with residential

development plan, which is under consideration.

Regulation 7 deals with the manner in which areas

reserved for park and open space which are

relinquished to the authority can be maintained by the

23

local residents’ association if the authority so desires.

As far as civic amenity sites are concerned,

Regulation 7.2 provides for development of the

said sites by the developer and the maintenance.

Though the open space and park areas or the civic

amenity sites may be relinquished by the

developer of the private layout through the

authority, nevertheless what regulation under

Chapter 7 prescribes is, only with regard to the

maintenance of the said areas. The said

regulations do not deal with disposal of such sites.

Even in the absence of disposal of the said areas

by the authority, the maintenance of the said city

can be handed over to the registered local

residents’ association. It is only when the civic

amenity site is allotted to specific categories of

persons that the Bangalore Development

Authority (Allotment of Civil Amenity Site) Rules,

1989 would apply. The said allotment would be

having regard to various criteria as stated in Rule

7 read with Rules 4 and 10. Therefore, when

there is no allotment of a civic amenity site, but

only the maintenance of the same has to be

considered, Regulation 7 of the Master Plan-2015

24

would apply and not Rules of 1989. It is only

when a civil amenity site is to be disposed on the

basis of a lease to be executed by the authority

that the 1989 Rules would apply.

(Emphasis supplied)

14. In the instant case, the petitioners are

seeking a direction to the Bangalore Development

Authority to consider their representation as well as

the representation made by the association in terms of

Chapters 7.1 and 7.2 of Revised Master Plan-2015.

They are not seeking any allotment of the civic

amenity site which they have relinquished to the

BDA. Therefore, 1989 rules pertaining to allotment

of Civic Amenity Sites would not be applicable.

15. Hence, the BDA has to consider the

representation made by the petitioner as well as by

the Association in terms of Regulations 7.1 and 7.2

respectively rather than referring the matter to the

State Government or by stating that a lease has to be

executed by the BDA with regard to the park and

open space as well as with regard to the Civic

Amenity Sites. Hence, a direction has to be issued to

the respondent-BDA to consider the representation

25

made by the petitioner as well as the Association

which are at Annexure-F in the context of Regulation

7.1 of the Revised Master Plan-2015. Moreover, the

State Government has also stated that it is for the

Bangalore Development Authority to take a decision

in the matter in terms of letter dated 21.4.2011 which

is filed along with the memo dated 12.7.2011. The

respondent-BDA is therefore directed to consider

the case of the petitioners in the light of

Regulation 7 of the Revised Master Plan-2015 and

not under the 1989 Rules. The said consideration

shall be made within a period of two months from the

date of receipt of the certified copy of this order. In

the result, the writ petition is disposed of with the

above direction.”

(Emphasis supplied)

The above decision was in fact applied to the petitioners herein in

their earlier petition before this court in WP 31663- 667/ 2011

dated 6-9-2011, a copy of the Order is at Annexure –C to the

present petitions.

It is therefore inexplicable that the BDA has chosen to

ignore the specific direction of this court. The conditions

26

imposed, of a deposit, a yearly rental and surcharge, under the

several allotment certificates issued in respect of the specific civic

amenities, which are under challenge in these petitions, cannot be

justified.

Under Chapter 6 of the RMP 2015, providing for – Sub-

division Regulations , under Regulation 6.1 d) i) it is provided as

under :

“d) Civic amenities and Roads:

i) After making provision for Parks and roads in the layout,

the balance portion of land shall be earmarked for civic amenity

site only. Such CA site shall be relinquished to BDA free of cost

and free of encumbrance.”

Further Regulation 6.2 i. , reads as follows :

“6.2) General conditions applicable for sub division,

amalgamation and Bifurcation of plot:

i. Subdivision

� The Authority reserves the right to modify the layout

submitted by the applicant / owner and may impose

27

any condition either from planning point of view or

in interest of public.

� 60% of the sites shall be released upon issue of work

order based on the draft plan. The sites to be

released are to be clearly indicated on the plan along

with the phasewise development. The release of

sites is subject to relinquishment of civic amenity

sites / parks 7 open spaces and roads to the authority

free of cost by way of a registered relinquishment

deed. 40% of the sites shall be released only after

the layout is fully developed in terms of utilities and

infrastructure. The entire process shall be as per the

government order issued in this regard.

� The approval of Layout Plan is subject to the

condition that the proposal satisfies all the

requirements stipulated under section 17 of K.T.C.P.

Act, 1961 and section 32 of BDA Act, 1976.”

And Regulation 7.1, (7.1.1 & 7.1.2 ) read as follows :

“7.1 Regulations for Residential Development Plan:

1. 10% of the land shall be reserved for Park and

Open space. The open space (park) shall be

28

relinquished to the authority free of cost and the same

may be allowed to be maintained by the local

residents association (registered), if the Authority so

desires.

2. A minimum 5% of total plot area shall be provided

for Civic amenities and the owner or developer shall

develop such civic amenities which finally shall be

handed over to the local residents association for

maintenance. The mode of such handing over shall

be decided by the authority.”

6. In the instant case the land is of the petitioners, the

development plans indicating the area earmarked for the civic

amenity sites were duly approved. The petitioners have

relinquished the said civic amenity sites in favour of the BDA.

The said civic amenities were to be developed at the cost of the

petitioners for purposes indicated in the sanctioned plans. There is

no dispute that the petitioners seek to develop the specified

amenities for the benefit of the local residents, who apparently

would have paid the price for such facility being provided as a

29

common facility for all the residents. There is hence no

consideration flowing from the BDA in seeking to impose

conditions of payment of lease rentals, a deposit or surcharge.

Property taxes in any event would be payable in respect of the

structures, which would adequately reimburse the BDA or such

other local authority which provides the general facilities such as

water supply, sewerage connections & power. ( Provided the

same are not alternatively provided for, in-house ) The BDA not

being able to resist the imposition of the above rentals, only on the

basis of the circumstance that the law requires the civic amenity

site to be relinquished in favour of the authority as a pre-condition

to development of the land and that the same stands vested in it as

on date, is unreasonable and arbitrary. The obvious requirement

that civic amenities and the parks as well as open spaces

appurtenant to any such development of land, as in the present

case on hand, being relinquished in favour of the BDA is to ensure

that same are compulsorily maintained as such and that the

developer does not dispose of the same for private profit.

30

Therefore the authority being given the discretion to decide the

mode of transfer of the civic amenity in favour of the local

residents association, after the development of the same, only

implies that the ultimate transferee is placed on terms as to the

manner in which the civic amenity shall be maintained and the

terms and conditions on which any such civic amenity could be

thrown open to the general public – if that is a possibility, or such

other safeguard being worked into the terms on which the transfer

is made to the local residents association for the limited purpose

of maintenance. In other words it would be unjust to permit the

BDA to embark on a “ lease- back” arrangement in respect of land

that belonged to the petitioners, and now to the local residents

who are the transferees of the developed land, of which the civic

amenity is only an appurtenance.

7. Therefore, in the opinion of this court the impugned

conditions demanding payment of any one time payment of lease

amount and yearly rentals or such other charges are wholly

31

unreasonable and are liable to be quashed. The petitions are

allowed as prayed for. The BDA is bound to refund any amounts

deposited pursuant to the impugned conditions imposed under the

allotment certificates, forthwith. In any event within a period of

15 days from the date of receipt of a copy of this order.

Sd/-

JUDGE

KS