H. KASHINATH AND ORS.versusSTATE OF KARNATAKA AND ORS.

                                                                                     ~-     .....
A                       H. KASHINATH AND ORS.
                                  v.
                     STATE OF KARNATAKA AND ORS.

                                AUGUST 21, 1995

B        [M.M. PUNCHHI AND MRS. SUJATA V. MANOHAR, JJ.)

                                                                                     ·-r-
          Bangalore Development Authority Act, 1976/Karnataka Town and
    Country Planning Act, 1961/Corporation of City of Bangalore Building Bye-
    laws, 1983:
c
           Sections 2(bb)(iv), 38A/Section 23/Schedule-l, Paragraph 1.2.7- Cor-
    poration of City of Bangalore-Comprehensive Development Plart--Land use
    and occupancies-Classification-Public and semi-public uses-'Civic
    amenity'-Land eannarked for public or semi public uses-Grant of lease to
    a society for building a theatre for purposes of development of drama and
D   films and to impart training to film artists-Held, lease is in violation of .
    pwpose for which site has been eannarked-Activities aimed at imparting
    training and promoting welfare of film artists are not educational, social or
    cultural activities.

E         Words and Phrases :

          'Civic amenity'-Section 2 (bb) of Bangalore Development Auth01ity
    Act, 1976-Meaning of.

          'Public or semi-public uses'-City Corporation of Bombay Building
                                                                                     '\
F   Bye-law, 1983, Schedule I, paragraph 1.2.7-Explained.

          Respondent No. 4, a Society registered under the Karnataka
    Societies Registration Act, 1960 and formed to promote the interests of
    Karnataka film artists, was allotted the land in dispute by the Corporation
    of the City of Bangalore, on a lease for the purpose of building a theatre
G   for the development of drama and films and to impart training to artists.
    The Government of Karnataka approved the lease for a period of 50 years
    on an annual lease rent of Rs. 500. In the comprehensive Development Plan ·      r-
    framed under Karnataka Town and Country Planning Act, 1961 and
    published under section 23 thereof, the land in dispute was earmarked for
H   a public o.. semi-public purpose or for a civic amenity. The appellants filed.
                                        834
                            H. KASHINATH v. STATE
                                                      .                       835

1   a public interest writ petition before the High Court challenging the            A
    allotment on the ground that granting of lease was not for the purpose for
    which the site was earmarked in the Plan. The High Court dismissed the
    writ petition. Aggrieved, the appellants filed the appeal by special leave.

          Allowing the appeal, this Court
                                                                                     B
          HELD : 1.1. The lease in favour of respondent No. 4 is in violation
    of the purpose for which the site has been earmarked, as the plot is
    reserved under the comprehensive Development Plan for a public or
    semi-public purpose. [837-D]
                                                                                     c
          1.2. The allotment of the plot to respondent No. 4 cannot be said to
    be an allotment of kind for a public or semi-public use as described in
    paragraph 1.2.7 of Schedule I to the Building Bye-law, 1983 framed by the
    Corpo~tion of the City of Bangalore. Respondent No. 4 is not an educa-
    tional cultural or religious institution what is being constructed by it is a D
    theatre to train artists and to stage plays or show films in the connection
    along with a school for training artists. It does not seem that the theatre
    would be open to the public at a nominal cost, or that respondent No. 4
    will not make profits out of running the theatre of hiring it out to other
    organisations of individuals. In fact, one of the avowed aims of respondent E
    No. 4 is to earn income which can be utilised for the objects of the
    Association, in the circumstances, it cannot be said that the allotment of
    this plot is for a public or semi-public purpose. It is purely for the benefit
    of respondent No. 4. [839-E-H; C]

           1.3. Respondent No. 4 is essentially a society to promote the interests
                                                                                     F
    of its members who are film artists. The activities of respondent No. 4
    would not fall under any of the categories of 'civic' amenity' mentioned in
    section 2(bb)(iv) of Bangalore Development Authority Act, 1976 which
    deals with a centre for educational, religious, social or cultural activities
    or for philanthropic service run, inter alia by a society re~istered under the   G
    Karnataka Societies Registration Act, 1960. On the other hand, under
    section 38-A of 1976 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. (838-G; 840-E-F; 841-B]                                                H
    836                    SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.                  .
                                                                                        r.


A           Lease in favour of the fourth respondent set aside. [842-C]            t
            CIVIL APPELLATE JURISDICTION: Civil Appeal'No. 3367 of
    1995.

         From the Judgment and Order dated 18.7.94 of the Karnataka High
B   Court in W.P. No. 24250 of 1991.

            S. Ravindra Bhatt and Ms. Kiran for the Appellants.

            M.R. Janardhan and P. Mahale for the Respondents No.1.

c           M. Veerappa for the Respondent No. 2.

            S.K. Kulkarni, Ms. Sangeeta for the Respondents No. 3.

            Subramanya Jois and T. Kanka Durga for the Respondents No. 4.

            The Judgment of the Court was delivered by
D
           MRS. SUJATA V. MANOHAR, J. 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 Cro.ss Road
    and 42nd Cross Road is 298 mtrs. x 91 mtrs. The site is in two parts. The
E   northern portion admeasures 91 mts. 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.
F                                                                                  ·~


         In the Comprehensive Development Plan framed under the Kar-
    nataka 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
G
    the portion which is lying in the southern part of this site which is ear-
    marked for a public or semi-public purpose.

          At the request of the fourth respondent, namely, Karnataka Chalana
    Chitra Kalavidara Sangha, the Corporation ofthe City of Bangalore second
H   respondent herein, passed a Resolution dated 30.12.1983 resolving to grant
           H. KASHINATH v. STATE [MRS. SUJATA V. MANOHAR, J.]               837

•   the above plot admeasuring 91 mtrs. x 91 mtrs. to respondent No. 4 on a        A
    lease at an annual rent of Rs. 500. The Government of Karnataka ac-
    corded 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 a 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       B
    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    C
    a public interest writ petition before the High Court of Karnataka chal-
    lenging 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    D
    purpose for which the said site is earmarked under the Comprehensive
    Development Plan. The High Court, however, has rejected the writ peti-
    tion. 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- Associa-     E
    tion 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 oif Karnataka and to work in
            harmony with such similar societies elsewhere in India;                F

            (b) to promote and protect the rights and privileges of the Film
            Artists as against outsiders as well as between and among them-
            selves;

            (c) to provide basic and other amenities to the Film Artists either    G
            in the course of their profession or otherwise;

            ( d) to provide financial and other facilities to the family members
            of the Film Artists at time of distress due to death or any other
            disablement of such members;                                           H
    838                  SUPREME COURT REPORTS (1995] SUPP. 2 S.C.R.

A           (e) to provide financial and other benefits to the member of Film
            Artists to prosecute education of their children;

            (t) 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
B           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 purpose;
c           (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
D           or between the outsiders and members;

            G) 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".
E
           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
F   respondent as well as to raise to achieve the objects of respondent No. 4. ·
    The objects also include establishment and running of a school for impart-
    ing the necessary technical skill and knowledge for the benefit of the
    members of the fourth respondent. These purposes can hardly be con-
    sidered as either public or semi-public purposes. The fourth respondent-
G   Society is essentially a society 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.
                                                                                    1I

         The grant of the lease is for the purpose of building a theatre for the
H   purpose of giving training to film artists and for the purpose of develop-
       H. KASHINATII v. STATE [MRS. SUJATA V. MANOHAR, J.]              839

ment of drama and films. It was stated before us by learned counsel for A
the fourth respondent that the fourth respondent proposed 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, B
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 our attention has been drawn to the Building         C
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 occupancie!'(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 D
Centres, Secretaries, District Officers, 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 com-
munity halls, opera houses etc. of a pre-dominantly non-commercial na-
ture". It also includes among the uses permitted, parks and play grounds. E
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 F
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 G
would be open to the public at a nominal cost, or that the fourth respon-
dent 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
respondr.nt 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 con-
tention of the respondents that the allotment of this plot is for a public or H
    840                    SUPREME COURT REPORTS [1995] SUPP. 2 S.C.R.

    semi-public purpose.
                                                                                       .....
A
           The appellants also contended that the lease was not for the purpose
    of providing a civic amenity. They sought to draw support from the defini-
    tion of "civic amenity" under Section 2(bb) of the Bangalore Development
    Authority Act of 1976. Section 2(bb) although it was introduced in 1988,
B   is given effect from 21.4.1984 i.e. a date prior to the execution of the lease
    in favour of the fourth respondent. Under Section 2(bb) 'civic amenity' is
    defined as follows :
                                                                                       f

            "Section 2(bb): Civic Amenity means: (i) a market, a Post Office,
            a Telephone Exchange, a Bank, a Fair Price Shop, a Milk Booth,
c           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 Corpora-
D           tion;

            (iii) A Centre for educational, social or cultural activities estab-       {

            lished by the Central Government or the State Government or by
                                                                                               ~
            a Body established by the Central Government or State Govern-
            ment;
E
            (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
F           created wholly for charitable, educational or religious purposes;         ''f


            (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
G
            (vi) such other amenity as the Government may by notification,
            specify".
                                                                                      ·,-I -
    The portion relevant for our purposes is sub:..section (iv) which deals with
    a Centre for educational, religious, social or cultural activities or for
H   philanthropic service run, inter alia, by a society registered under the
       H. KASHINATH v. STATE [MRS. SUJATA V. MANOHAR, J.)                 841

Karnataka Societies Registration Act, 1960. The activities of the fourth         A
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 arc not activities which can be
generally classified as educati~nal, social or cultural activities. Under sec-
tion 38-A of the Bangalore Development Authority Act, there is a prohibi-        B
tion against selling or otherwis~ 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     C
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. ln the
absence, however, of any relevant data showing that this plot is within this
minimum reservation we are not examining this contention of the appel-           D
lants. 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 E
Jagdish v. Bangalore Development Authority Gudgment dated 7th of
January, 1990 in Writ Appeal No. 2781of1990 before the High Court of
Karnataka, the Division Bench consisting of Justice S. Mohan, Chief Jus-
tice, 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 F
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 G
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 H
    842                  SUPREME COURT REPORTS (1995) SUPP. 2 S.C.R.

A   Corporation of the City 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 Survey No. 19 is reserved for a public or semi-
B   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
c   to tlie fourth respondent under the said lease deed. ,In the circumstances,
    however, there will be no order as to costs.

    R.P.                                                       Appeal allowed. ·




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