Case: BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY &amp; ANR Vs. NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED &amp; ORS

view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the State. The Project Proponents would, however, rely on the exposition in paragraph 27 of the decision of this Court in Badrinath vs. Government of Tamil Nadu & Ors. (2000) 8 SCC 395 , which reads thus: - 27. This flows from the general principle applicable to consequential orders. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime – like the recommendation of the State and by the UPSC and the action taken thereon – would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order. Reliance is also placed on Section 15 of the KTCP Act, in particular, proviso thereto, which reads thus: - 15 - Permission for development of building or land.- (1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate: Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct. (2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the regulation finally approved under sub-section (3) of section 13. (3) Subject to the provisions of section 16, no compensation shall be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. (4) If any person does any work on, or makes any use of, any property in contravention of section 14 or of sub- section (1) of this section, the Planning Authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to such Authority under this Act from the person in default or from the owner of the land. Explanation. -The power to grant necessary permission under this section for a change of user of land shall include the power to grant permission for the retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an outline development plan under sub-section (1) of section 10 or for the continuance of any use of land instituted before the said date. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (1) or sub-section (4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed. (7) The prescribed authority may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such orders as it deems fit, as far as may be, within four months from the date of receipt of the appeal. (emphasis supplied) We are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.2012. 66. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]36. Considering the rival submissions, we are inclined to accept the argument of the appellants that the High Court in paragraph 9 of the impugned judgment (reproduced in paragraph 22 of this judgment), posed wrong questions to itself and that led to the erroneous and untenable conclusion deduced by itThe High Court, in our opinion, hastened to examine the justness of the reasons given by the Planning Authority for rejecting the proposal, vide the impugned communication dated 7.2.2015Suffice it to observe that the underlying concern of the State was about the increasing urbanisation problems and to assuage the hardship caused on that account to the general public. The Project, as envisaged and finalised was intended to achieve the objective of orderly development of Bangalore as a major industrial, commercial and residential city. The Integrated Infrastructure Corridor (the Project) was to consist of residential, industrial and commercial facilities, amongst other things, self- sustaining townships, expressways, utilities and amenities including power plants, industrial plants, water treatment plants and other infrastructural developments, as envisaged in the PTR, as amended. The objective of the Project was also to ensure smooth and accident-free traffic between Bangalore and Mysore; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; decongest traffic etc41. Notably, the PTR had suggested creation of seven Townships, but in the final decision, as noted in the FWA, only five Townships have been approved as part of the Project being Townships 1, 2, 4, 5 and 7. It was a conscious decision taken by the State to have limited number of self-sustaining Townships in the entire belt, so as to fulfil the National and State policy goals of population dispersion and to ensure proper functionality in the region. In other words, the FWA predicates that the Project Proponents will be allowed to develop only five Townships at the demarcated locations and which are self-sustaining with sufficient infrastructure for ensuring smooth and accident-free traffic on Bangalore-Mysore Expressway stretched to about 140 kilometres. Keeping that objective in mind, the stipulations and specifications in the FWA read with the relevant portion of the PTR will have to be examined. There is no room for giving liberal meaning to the stipulations and specifications which would inevitably defeat and frustrate the underlying objective of the Project - of orderly development of Bangalore City and to address the ever-increasing urbanisation problems42. Be it noted that the FWA executed between the State and the Project Proponents delineates the nature of contract and the scope of work to be carried out by the Project Proponents, as per the terms and conditions specified therein. It is an integrated project not only for construction and management of Expressway, but also creation of Townships at the demarcated location(s) as per the specifications and area earmarked therefor. The Infrastructure Corridor has been defined as having the same meaning as set forth in the recital (4 th WHEREAS clause) of the FWA. It means, collectively, the Land, the Toll Road, the Townships, the Power Plants, the Telecommunication Facilities, Water Supply Facilities and the Waste Water Treatment Facilities and other developments, and the acquisition, design, construction, engineering, financing and implementation thereof, as referred to in the PTR. Townships is, therefore, an identified and well-defined component of the Infrastructure Corridor ProjectFrom this definition, it is amply clear that only five Townships (each having different purpose – such as Corporate Centre, Industrial Centre, Ecotourism Centre, Heritage Centre and Commercial Centre) have been envisaged in the Infrastructure Corridor Project. The location(s) of these five Townships have been identified in the PTR. Besides the location(s), the extent of area to be utilised for creation of each Township has also been specified in the PTR, which applies proprio vigore to the expression Townships in the FWA. The term Townships, no doubt, includes housing, but a standalone group housing scheme cannot be regarded as a Township as suchTo put it differently, the Project Proponents are obliged to construct the five Townships at the demarcated location(s) only and to the extent of land specified therefor. Any other proposal of the Project Proponents would be nothing short of deviation from the FWA in particular. It is not necessary for us to dilate on the essential specifications and components to constitute a Township. Suffice it to observe that the Project Proponents are obliged to construct housing in the area demarcated for Townships and ensure that the other socio-economic infrastructure components such as schools, hospitals, shopping complexes, parks and open spaces etc. are also provided for within the Townships. The construction of the essential components including housing, as expressly provided in the FWA, must also comply with the municipal laws governing such constructions3. Indeed, while planning for the development of Townships, it is open to the Project Proponents to deviate from the PTR within the defined norms to the extent such deviation is required to enable the parties to realise the full benefits intended from development of the Project. But, that is required to be done only with prior written approval of the State. This is made amply clear by Article 7.1 of the FWA itselfConsidering the fact that the State is obliged to facilitate the Project Proponents to deviate from the PTR specifications adopted in the FWA for the development of Townships, that does not mean that the Project Proponents will set up housing complex at location(s) other than those demarcated for five Townships including not providing for other components of Townships in the proposal or limit the proposal only to one component, such as housing and excluding the other mandatory components - schools, hospitals, shopping complexes, parks and open spaces etc. Such interpretation cannot be countenanced and if accepted, it would inevitably defeat the very purpose of the well- defined project intended to address the increasing urbanisation problems and for orderly development of Bangalore City including smooth and accident-free traffic between Bangalore and Mysore ExpresswayEven on a fair reading of these agreements, we find that there is no express clause therein which would alter the scope of work and the obligations of both parties regarding the setting up of five self-sustaining Townships only at the demarcated location(s). The supplementary agreements, however, deal with other aspects with which we are not concerned nor are the same relevant to decide the matters in issue. Similarly, the Tripartite Agreement dated 9.8.2002 between the State, NICE and NECE also does not alter or modify the stipulations and specifications for setting up of five self-sustaining Townships only at the demarcated locations. The High Court has placed emphasis on clause 1.1.3 of the Tripartite AgreementWe fail to understand as to how this clause can be construed to mean that the original stipulations and specifications regarding the five designated Townships in the FWA stood modified or altered in any manner. This clause only deals with the meaning of Stage 1 of the Infrastructure CorridorIndeed, clause (c) thereof refers to Township–1, but that reference is in the context of basic development and sale of land, and by no stretch of imagination, can be construed to mean that Township–1 (Corporate Centre) could be set up at any other location much less at intersections demarcated in the PTR. The purpose of intersections is to provide for free flow of traffic across the area. All the five Townships referred to in the PTR are indisputably far away from intersections. Despite that, the Project Proponents have proposed for group housing scheme in Section A of the Project at intersections 5/7 thereat on the peripheral road. This is notwithstanding the fact that even the Tripartite Agreement does not modify the location(s) and specifications for the Townships referred to in the PTR, which forms part of the FWAThe ODP/Master Plan, no doubt, would apply and must be reckoned if any building proposal/plan is submitted to the Planning Authority. However, the Project Proponents are obliged to develop the Project only in the manner provided for in the FWA. For, the right to develop the Project bestowed on the Project Proponents flows, primarily, from the FWA and the supplementary agreements in that regard. Unless the FWA enables the Project Proponents to set up Townships at location(s) other than location(s) for five Townships demarcated in the FWA read with PTR and as standalone group housing scheme, the question of Project Proponents unilaterally using the allotted land for construction of a group housing scheme spread over in 42 acres and 30 guntas, that too at location(s) other than demarcated for five Townships, cannot be countenanced. Only upon grant of prior permission by the State in that regard, the stipulations in the FWA (about the location(s) of the Townships/group housing scheme), would stand relaxed and modified and the Project Proponents would then be entitled to pursue such proposal with the Planning Authority. The State can do so in terms of Article 3.2.3 and the Project Proponents can request the State in that regard by invoking the enabling provision in Article 7.1 (both of the FWA)47. To put it differently, the zone specified in the ODP/Master Plan per se is not enough to allow the Project Proponents to unilaterally use the land made over to them after acquisition from private land owners for the Project, for purpose and manner other than specified in the FWA and the PTR49. The fact remains that the original proceedings in the form of writ petitions were filed as public interest litigation before the High Court, challenging the Project in question, the stipulations in the FWA and because in the garb of the Project, acquisition of excess land was resorted to by the State, which would eventually result in undue profiteering by Project Proponents. In our opinion, neither the judgment rendered in appeal by this Court in All India Manufacturers Organisation (supra) nor the observation found in the order dated 3.11.2009 will be of any avail to the Project Proponents. For, the Court was not called upon to adjudicate the question even indirectly, as to whether the subject proposal for setting up of group housing scheme could be proceeded directly before the Planning Authority just because it is in conformity with the ODP/Master Plan and even though it is proposed at a location different than the demarcated location(s) for the five Townships in the FWA read with the PTR. No such plea was raised by the Project Proponents. In other words, none of the Court orders referred to by the Project Proponents had examined the questions/issues involved in these appeals50. Admittedly, in the present case, the modified proposal submitted by the Project Proponents on 5.5.2012 for developing 42 acres 30 guntas of land as group housing scheme, pertained to Survey Nos. 17(P), 18, 19, 20/1, 20/3, 21/1(P), 21/2A2(P), 21/2B(P), 21/2C(P), 21/2D(P) and 21/2E(P) at village Kommagatta, Kengeri Hobli, Bangalore South Taluk (at intersection 5/7, Section A of the Project on the peripheral road). It was not for setting up of Township as such. Neither the PTR nor the FWA envisages construction of standalone group housing scheme, that too at a location other than demarcated location(s) for five Townships. Thus, it was a clear case of deviation from the stipulations and specification contained in the FWA read with the PTR; and to relax or modify the same, prior permission of the State is made mandatory in terms of the Article 7.151. Notably, even the State had intimated the Planning Authority vide letter dated 19.12.2013 sent by the Principal Secretary, Public Works, Ports and Inland Water Transport Department, that in respect of change in land use and approval of residential developments, prior decision of the Empowered Committee should be obtained52. The fact remains that Article 7.1 of the FWA obliges the Project Proponents to submit proposal to the State for approval in case of any deviation. No such proposal was submitted to the State. Instead, the Project Proponents pursued the matter directly with the Planning Authority. In that sense, prior approval of the State for deviating from the FWA and in particular constructing housing complex at location other than demarcated for Townships, is not forthcoming. Admittedly, no such approval was taken. If such proposal was to be submitted to the State, it would be open to the State to examine the same on its own or refer the matter to the Empowered Committee constituted for resolving such issues, as envisaged in Article 4 of the FWAIndeed, the Empowered Committee is not a statutory committee, but it can be so constituted in terms of Article 4 read with Schedule 6, consisting of high officials of the concerned departments. This is only to facilitate quick processing of the proposals and implementation of the Infrastructure Corridor Project with mutual understanding and due consultation wherever necessary. We may assume that the Empowered Committee may not agree with the proposal, as it may be of the view that the deviation is quite substantial and would disrupt the core objective of the Integrated Infrastructure Corridor (the Project), which has been designed with purpose of holistic and orderly development of the region as a whole. In that eventuality, the Project Proponents would be required to resort to mechanism of resolution of disputes envisaged in Article 18 of the FWA,53. A priori, it must necessarily follow that the Project Proponents cannot and ought not to have directly approached the Planning Authority for grant of stated permission in reference to the provisions in the KTCP Act or ODP/Master Plan. As aforesaid, if the proposal to be submitted by the Project Proponents was compliant with the stipulations and specifications given in the FWA read with the PTR, only then the Project Proponents could justifiably approach the Planning Authority directly for grant of permission as per the extant regulations and municipal laws applicable in that regard, to construct buildings and structures for establishing a Township. In other words, the proposal/application of the Project Proponents would be a valid proposal/application to the Planning Authority only if it was to be in strict compliance with the land use specified in the FWA read with the PTR. In case of any deviation therefrom, it ought to accompany a formal prior approval of the State or the Empowered Committee, as the case may be, so that it can be processed further by the Planning AuthorityThis argument does not take the matter any further for the Project Proponents, inasmuch as the land in question has been allotted to the Project Proponents by the State after acquiring it from private land owners for implementation of the Project. For that reason, the use of the land should be strictly in conformity with the FWA and the applicable stipulations in the PTR. It is not open to the Project Proponents to contend that they can unilaterally develop the land allotted to them by the State in the manner other than specified in the FWA, being bound by the contractual obligations flowing from the FWA55. Notably, the State had granted prior permission to the Project Proponents to construct housing units at location(s) other than the five Townships. That was to accommodate the concerned land losers in connection with the same Project as per the policy of the State. Besides, the stated housing complex is not spread over in 42 acres and 30 guntas of land, so as to disrupt the holistic development envisaged in the FWA/PTR. In any case, that could be done only after obtaining prior approval of the State in that regard. As regards permission given to the private land owners, as aforesaid, that was given by the Planning Authority as per the applicable town planning regulations and in particular the use specified in the ODP/Master Plan. For, their lands did not form part of the Project and also because they are not bound by the stipulations in FWA in particular, unlike the Project Proponents56. Reverting to the factum of assurance given by the Planning Authority in the earlier round of writ petition(s) that the modified proposal/application dated 5.5.2012 will be considered in accordance with law and also that the State was party to that petition, in our view, it does not entail in acquiescence or waiver of the jurisdictional issue by the State (regarding necessity of seeking prior approval of Empowered Committee and No Objection (Certificate)/approval from the concerned State authorities). In that, the assurance given by the Planning Authority cannot come in the way of the State to urge that in law, the Project Proponents had no authority to develop the lands in question except as per the stipulations and specifications prescribed in the FWA read with the relevant clauses of the PTR. As a matter of fact, the earlier writ petitions were not decided on merits, but came to be disposed of leaving all contentions open, in lieu of the assurance given by the Planning Authority that it would consider the modified application as per law. In the present writ petitions, therefore, the State in the larger public interest is duty-bound to take a legal plea regarding jurisdictional issue including the extent of right of the writ petitioners (Project Proponents) being limited to stipulations in the FWA. Thus, neither the unilateral assurance given by the Planning Authority nor the fact that such specific reason has not been recorded by the Planning Authority in the impugned communication or that the State was party to the said writ petitions, would denude the State from raising the legal question regarding the scope of the FWA disentitling the Project Proponents for grant of any relief in the subject writ petitions. Further, the High Court in the guise of issuing mandamus to the Planning Authority for issuing the Commencement Certificate, in effect, has prevented the State from calling upon the Project Proponents to strictly abide by the stipulations in the FWA. That cannot be countenancedThis submission is founded on complete misreading of the observations in the decision of this Court in All India Manufacturers Organisation (supra). As noticed earlier, the lis before this Court including review petition(s) had arisen on account of the challenge to the FWA and also the acquisition of land for the purpose of the corridor project being excessive. Neither the High Court nor this Court was called upon to answer the issue now raised by the Project Proponents that it was free to construct standalone group housing scheme and at location(s) outside the demarcated five Townships (in the FWA/PTR)58. Thus understood, the argument of the Project Proponents that the plea taken by the State is hit by res judicata and in any case, by principles of constructive res judicata, cannot be countenanced. As a matter of fact, the Project Proponents did not pursue the plea of res judicata or of constructive res judicata before the High Court, as is evident from the points for consideration formulated by the High Court in paragraph 9 reproduced in the earlier part of this judgment (in paragraph 22). Even if it can be considered as a question of law, in our opinion, the same does not arise in the fact situation of the present case59. The Project Proponents had also placed reliance on the dictum of the High Court in S.M. Mohan Rao Nadgir vs. State of Karnataka & Ors. Decided by the High Court on 28.2.2005 in Writ Appeal No. 72/2004 and connected writ appeals, which, in our opinion has no bearing on the question that arises for our consideration. Paragraph 10 of the said decision as reproduced in the written submission filed by the Project Proponents, in fact merely sets out the factual matrix of that case and is certainly not an opinion of the Court answering the plea required to be adjudicated in the present appeals. Even the observation in Dakshinamurthy vs. B.K. Das, IAS & Ors. (2010) 1 SCC 64 , being an order passed in Contempt Petitions filed in Civil Appeal Nos. 3492-3494/2005 and connected appeals [decided on 20.4.2006, as reported in All India Manufacturers Organisation (supra)] will be of no avail to the Project Proponents. The fact recorded that the Project shall be allowed to be completed as per the alignment specified in the ODP/Master Plan, as noted therein, has no bearing on the questions dealt with in the present appeals60. Be it noted that the Project can be taken forward by the Project Proponents only in conformity with the stipulations and specifications in the FWA and the PTR. Additionally, the Project Proponents are also obliged to ensure compliance of ODP/Master Plan and if so complied, the Planning Authority cannot create any impediment. If the State accords approval to the deviation in terms of the FWA itself, the Project Proponents may be competent to carry on such a work. To put it differently, prior approval of the State for deviation from the stipulations and specifications in the FWA is the quintessence. We do not wish to burden this judgment with the argument about attitude of the concerned authorities in creating obstructions in completion of the Project because no official has been named in the writ petitions filed by the Project Proponents being responsible for that situation61. The argument of the Project Proponents that the housing complexes can be constructed even at intersections by placing reliance on the observations in All India Manufacturers Organisation (supra), is begging the questionThe issue considered in the earlier rounds of litigation by this Court was on the basis of stand taken by the State to defend the Project, the FWA and the acquisition of land for the purpose of the project. In the present appeals, the matter is required to be examined in the context of the stand of the Project Proponents that they are free to carry on construction of housing scheme at any location of their choice even outside the demarcated location(s) for five Townships, stretched over about 140 kilometres of the expressway, in the FWA and the PTR62. Reverting to the dictum in M. Nagabhushana (supra), the same will also be of no avail to the Project Proponents as it does not militate against the Planning Authority and State, in particular. As already noted, the State is competent to maintain its stand that the legal right of Project Proponents flows only from the terms and conditions specified in the FWA read with the PTR. That is a just plea available to the State and must be taken by it in the larger public interest to ensure that the objective of the Integrated Corridor Project (the Project) is not marginalised, undermined or frustrated in any manner. If development as desired by the Project Proponents on the stretch of 140 kilometres of the expressway is allowed, it would result in development in manner other than the one planned and conceived in the FWA and the PTR, the objective of which is to provide for holistic and orderly development of the self-sustaining Townships with all basic infrastructure and civic facilities and to ensure smooth and accident-free traffic between Bangalore and Mysore; population dispersal as per the National/State policy; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; and decongest traffic etc63. It is not necessary for us to dilate on other aspects regarding the efficacy of the FWA and the PTR or the other agreements executed between the parties, having held that it is for the State to consider the proposal for allowing the Project Proponents to deviate from the stipulations and specifications of the FWA and the PTR and until that decision is taken by the State or its instrumentalities including the Empowered Committee constituted in terms of the FWA, the Planning Authority cannot process the proposal/application directly submitted to it by the Project Proponents. Further, such non- compliant proposal/application submitted by the Project Proponents directly to the Planning Authority must be regarded as infirm, invalid and non-est in law65. Suffice it to observe that assuming the High Court was right in taking the view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the StateWe are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.201266. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the Planning Authority for approval of modified proposal, which was replete with deviations from the stipulations and specifications in the FWA read with the PTR. This is so because the right in favour of the Project Proponents to carry on development work on the lands referred to in the FWA and the PTR would enure only in conformity with the stipulations and specifications in the stated documents. It is not open to the Project Proponents to develop the land in any other manner, unless permitted by the State.