PURUSHOTHAM Vs. STATE OF KARNATAKA & ORS.

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


            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.