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

2. This is the fifth round of litigation pertaining to the Integrated Infrastructure Corridor and Finance Project situated between Bangalore and Mysore, Karnataka, consisting of residential, industrial and commercial facilities, such as, among other things, self-sustaining Townships, expressways, utilities and amenities including power plants, industrial plants, water treatment plants and other infrastructural developments, as more specifically described in the Infrastructure Corridor Project Technical Report dated August, 1995, as amended3. The first round of litigation was in the form of a public interest litigation filed by H.T. Somashekar Reddy before the High Court, questioning the requirement of land for the Project as per the FWA for development of industrial infrastructure facilities (residential, commercial, industrial etc.) and to quash the FWA besides directing an enquiry to be conducted by Central Bureau of Investigation . That challenge was rejected by the Division Bench of the High Court vide judgment and order dated 21.9.1998 in Writ Petition No. 29221/1997 (Reported as H.T. Somashekar Reddy vs. Government of Karnataka & Anr., 1998 SCC Online Kar 609) and which decision came to be affirmed by this Court on 26.3.1999 in SLP(C) No. 4922/1999, dismissing the said special leave petition in limine4. The second round of litigation was at the instance of J.C. Madhuswamy and Srirama Reddy, again a public interest litigation to question the land acquisition proceedings initiated by the State for implementation of the Project. The main grouse in this petition was about excess land being acquired for real estate purpose near Bangalore at interchange areas to pass on the benefit to the Project Proponents and illegal sale of land for construction of Bangalore Exhibition Centre. The group of writ petitions raising aforementioned challenge being Writ Petition Nos. 45334/2004 (GM-RES-PIL), 45386/2004 (PIL-LA-KIADB) and 48981/2004 (GM-RES-PIL) came to be disposed of by the Division Bench of the High Court vide judgment and order dated 3.5.2005, resulting in dismissal of stated writ petitions and issuance of a direction to the State to continue to implement the Project. That decision was affirmed by this Court in State of Karnataka & Anr. Vs. All India Manufacturers Organisation & Ors. (2006) 4 SCC 683 5. The third round of litigation was at the instance of one M. Nagabhushana, challenging the acquisition proceedings initiated for implementation of the Project. That challenge was rejected by the Division Bench of the High Court in Writ Appeal No. 1192/2007 vide judgment and order dated 23.7.2010. The said proceedings culminated with the decision of this Court in M. Nagabhushana vs. State of Karnataka & Ors. (2011) 3 SCC 408 6. The fourth round of litigation was initiated by Abraham T.J. in reference to allegations of illegality and offences committed under the Prevention of Corruption Act in the course of implementation of the Project. That culminated with the dismissal of SLP(Crl.) No. 397/2017 vide order dated 5.9.2018 and R.P.(Crl.) 647/2018 in the dismissed SLP vide order dated 11.12.2018 by this Court.7. The present (fifth) round of litigation, however is by the Project Proponents themselves, who had applied to the Planning Authority for grant of permission for construction of group housing scheme at the stated location(s). That permission having been rejected on 7.2.2015, subject writ petitions were filed before the High Court, which have been disposed of by the common judgment and order dated 15.10.2019 of the Division Bench, in the following terms: -(i) Writ petitions are allowed(ii) Communication bearing No. BMICAPA/339/Praa. Pra. Pa/1541/20 11-12 dated 07.02.2015 (Annexure-A) issued by first respondent to the petitioner is hereby quashed(iii) A writ of mandamus is issued directing first respondent to issue commencement certificate as sought for by the petitioner in its application bearing No. NECE//05/170 dated 05.05.2012 (Annexure-G) expeditiously and at any rate, within an outer limit of 6 weeks from the date of receipt of copy of this order(iv) Costs made easy8. Considering the fact that this is the fifth round of litigation before this Court and that the importance of the Project has already been taken note of in the earlier decisions, we deem it apposite to confine to the factual matrix essential to answer the matters in issue in reference to the relief granted by the High Court vide impugned judgment9. Shorn of unnecessary details, the State and the NICE had executed the FWA on 3.4.1997, setting out various terms for the purposes of developing the proposed infrastructure corridor. The FWA was followed by supplementary agreements dated 6.10.1999 and 31.3.2000 between the same parties. Besides the supplementary agreements, a Tripartite Agreement was executed between the State, NICE and NECE on 9.8.200210. The FWA delineates the location(s)/areas where the five self- sustaining Townships were to be set up. The subsequent agreements between the State and the Project Proponents do not alter the substance of that dispensation. The FWA makes reference to provisions in the PTR in respect of certain matters11. Indeed, the Outline Development Plan /Master Plan was prepared by the Planning Authority for the new planning area on 12.2.2004 and had received approval of the State. However, the ODP/Master Plan was not intended to materially change or alter the location(s) for Townships specified in the FWA12. The State in exercise of its powers under the Karnataka Town and Country Planning Act, 1961 , made amendments to the Zonal Regulations of ODP/Master Plan of various towns and cities permitting the single plot usage for residential purpose subject to certain conditions vide notification dated 10.3.200613. In the backdrop of the stated agreements, ODP/Master Plan and the amendment to Zonal Regulations of ODP/Master Plan, the Project Proponents submitted an application on 6.1.2012 to the Planning Authority for sanction of group housing scheme in 53 acres 5 guntas of land, which included lands transferred to the Project Proponents under sale deeds and notified under Section 28(4) of the Karnataka Industrial Areas Development Act, 196614. Later on, the Project Proponents submitted modified development plan on 5.5.2012 for permission to set up group housing scheme in 42 acres 30 guntas of land by excluding the lands in respect of which no sale deed was executed in their favour. The Planning Authority vide letter dated 28.5.2012 called upon the Project Proponents to furnish certain documents, namely, sketches, No Objection Certificates (NOCs), detailed project report etc., since in its view, the application submitted by the Project Proponents was defective in that regard. The Planning Authority also moved a proposal to place the matter for approval before the High-Level/Empowered Committee15. The Project Proponents submitted the clarifications and documents in support of the modified development plan vide communication dated 6.6.2012 and 5.7.2012. The Planning Authority, however, vide letter dated 17.7.2012 called upon the Project Proponents to furnish more documents i.e. RTCs, clarification pertaining to the possession over the proposed land and NOC for water supply in support of their application. The Project Proponents claimed to have submitted NOC received from the Karnataka Fire and Emergency Services Department on 10.9.201216. The Planning Authority in its 34 th General Meeting convened on 12.9.2012 resolved that the application of the Project Proponents be placed before the High-Level/Empowered Committee for decision. As a consequence of this resolution, the Planning Authority vide letter dated 3.11.2012 directed the Project Proponents to stop work on proposed lands till a decision was taken by the High-Level/Empowered Committee, having noticed that some unauthorised road construction activity was being carried out by the Project Proponents. The Planning Authority had thus kept the modified development plan submitted by the Project Proponents in abeyance till the decision of the High-Level/Empowered Committee17. Once again, the Planning Authority vide letter dated 15.1.2013 directed the Project Proponents to stop unauthorised work of construction of road, laying of water pipeline and electricity cables in the concerned area. In response, on 23.3.2013, the Project Proponents requested the Planning Authority to issue necessary approvals (Commencement Certificates) against their request letters including letter dated 5.5.2012. The Planning Authority vide letter dated 30.4.2013, informed the Project Proponents that appropriate decision would be taken on the modified development plan dated 5.5.2012 only after the decision of the High-Level/Empowered Committee. Accordingly, the Project Proponents were once again asked to stop all construction activities until final decision on the proposal was taken18. The Project Proponents then filed Writ Petition Nos. 57249- 57250/2013 (GM-RES) and 57266-57267/2013 (GM-RES) before the High Court for quashing of the decision of the Planning Authority taken in its 34 th General Meeting held on 12.9.2012 and instead to grant approval in reference to the modified development plan dated 5.5.2012. The Project Proponents had also sought a declaration that the approvals were deemed to have been granted in terms of Section 15(2) of the KTCP Act and to direct the Planning Authority to forthwith issue Commencement Certificate in reference to the application dated 5.5.201219. When the said writ petitions were pending, the Principal Secretary, Public Works, Ports and Inland Water Transport Department of the State, vide letter dated 19.12.2013, directed the Planning Authority to await the decision of the High- Level/Empowered Committee constituted under the FWA before considering the request of the Project Proponents, which would involve change of land use and approval of residential developments. On 25.6.2014, the Planning Authority issued notice under Section 15(4) of the KTCP Act to the Project Proponents directing, inter alia, to refrain from taking up the development works at the proposed sites and to remove the works already done and restore the land to its original form20. The writ petitions filed by the Project Proponents being Writ Petition Nos. 57249-57250/2013 (GM-RES) and 57266- 57267/2013 (GM-RES) came to be disposed of on 16.12.2014 recording the statement of the counsel for the Planning Authority that appropriate decision would be taken on the modified development plan dated 5.5.2012 submitted by the Project Proponents expeditiously. The High Court directed the Planning Authority to send appropriate communication to the Project Proponents by 15.3.201521. Before the decision was taken by the Planning Authority, the Project Proponents submitted their response to the notice dated 25.6.2014 issued by the Planning Authority under Section 15(4) of the KTCP Act, on 6.1.2015. The Planning Authority took decision on 7.2.2015 on the application filed by the Project Proponents dated 5.5.2012 regarding the modified plan for group housing scheme. The Planning Authority rejected that proposal, for the reasons noted in the communication dated 7.2.2015, which reads thus: -BANGALORE MYSORE INFRASTRUCTURE CORRIDORAREA PLANNING AUTHORITYSECOND FLOOR, GATE NO.4, M.S. BUILDING, DR. B.R.AMBEDKAR VEEDHI,BANGALORE-560001 TEL:080-22353976 FAX: 080- 22389519No BMICAPA/339/CC/1541/201 1-12 Date: 07.02.2015Managing DirectorM/s. Nandi Economic: Corridor Enterprises Limited.No.1, Midford House,M.G. Road, BangaloreSub: Regarding your application for plan approval for group housing in Sy. Nos. 17(P), 18, 19, 20/1, 20/3, 20/4, 21/1 (P), 21/2A1 (P), 21/2A2(P), 21/2B(P), 21/2C(P), 21/2D(P) and 21/2E(P), totally measuring 53 Acres-05 Gunte of Kommaghatta Village, Kengeri Hobli, Bangalore South Taluk.Ref. 1. Order of the Honble in W.P. No.57249- 50/2013 (GM.-RES) and 57266-67/2013 (GM-2013 dated 16.12.2014)2. Your application dated 05.05.20123. Your re-application dated 06.01.2015On verification of your application and documents following drawback are observed;1) In the master plan approved by the Government, the proposed land was earmarked for transporl and communication, park and open space, public and semi public zone. There is no opportunity for residential building in the said zone. In the plan submitted, lands are not reserved for park and open space2) As per Form-15 (EC) submitted shows that development agreement is entered with Umang Reality Pvt. Ltd. Copy of the said agreement not submitted3) As per sale deed submitted, the proposed lands were acquired for Stage-1 of Infrastructure Project. (as per FWA phase-1 included 9.8 k.m. link road and 3 k.m. of peripheral road). Further as per sale deed lands has to be returned to the Government after 30 years and there is no clarity in the said document about permitting for building plan in the land. In this regard we have written letter to PWD for information and they have not provided any information till now. That apart, the proposed land is not transferred to you for group housing purpose4) As per village map, there is a stream (halla) passing through east to west in the land. But in the survey sketch/building plan submitted only portion of the hall is shown5) Construction of Unauthorized road in the lands in question has been observedIn view of the above, it is hereby informed that, your proposal is rejectedYours sincerely,Additional Director, Town and CountryPlanning and Member Secretary,BMICAPA, Bangalore.above communication was assailed by the Project Proponents before the High Court and it was prayed that a writ be issued directing the Planning Authority to grant Commencement Certificate for the proposed group housing scheme. Those writ petitions [Writ Petition Nos. 16576-16577/2015 and 18481- 18491/2015 (GM-RES)] have been disposed of by the Division Bench of the High Court vide impugned judgment22. The High Court, after considering the stand taken by both the sides, formulated three points/questions for its consideration, as noted in the impugned judgment, which read thus: -(1) Whether writ petitions are liable to be dismissed on the ground of same not being maintainable as it relates to discharge of contractual obligations between the petitioner and third respondent? OR Whether writ petitions are liable to be dismissed on the ground of FWA providing for redressal of grievances of petitioner to be routed through High Level Committee?(2) Whether communication dated 07.02.2015 -Annexure-A issued by first respondent rejecting the prayer of the petitioner for approval of development plan for group housing in the Sy.Nos. indicated therein is liable to be upheld or quashed?(3) What order?At the outset, the High Court, while considering point No. 1, dealt with the argument regarding maintainability of writ petitions. It referred to the decisions of this Court in Tata Cellular vs. Union of India (1994) 6 SCC 651 , Raunaq International Ltd. vs. IVR Construction Ltd. & Ors. (1999) 1 SCC 492 , Association of Registration Plates vs. Union of India & Ors. (2005) 1 SCC 679  and Michigan Rubber (India) Limited vs. State of Karnataka & Ors. (2012) 8 SCC 216 . Thereafter, the High Court proceeded to observe as follows: -15. At the outset it requires to be noticed that petitioners are seeking for quashing of the communication dated 07.02.2015 (Annexure-A) addressed to the petitioners whereunder the approval of the plan for Group Housing which requires to be approved by BMIC-first respondent has been rejected. A perusal of the said communication would clearly disclose that nowhere first respondent has either contended or whispered about non consideration of the application submitted by the petitioners on the ground of petitioners having sought for enforcement of a contractual obligation or on the ground FWA providing for mechanism to enable the petitioners to work out their right as per said mechanism. On the other hand, first respondent by virtue of the said authority being the planning authority empowered under the FWA to grant approval, has examined the prayer of the petitioners for approval of the plan for group housing and has rejected the same by assigning five (5) specific reasons. It is nowhere stated said application of petitioner is not being considered on account of petitioner is attempting to enforce a contractual obligation or said application has to be placed before High Level/Power Committee. Thus, prima facie contention of third respondent with regard to maintainability of the writ petitions cannot be accepted16. In fact, petitioners herein had approached this Court in W.P. No. 57429-50/2013 and connected matters at the first instance when first respondent had resolved to refer said application to High Level Committee whereunder this Court had disposed of the writ petition by order dated 16.12.2014 based on stand by counsel appearing for BMIC therein undertaking to consider the application on merits. In said proceedings third respondent herein was a party and in fact, no statement of objections had been filed by the third respondent raising contention now raised and thereby it would clearly indicate that third respondent is attempting to improvise its stand stage by stage and step by step17. In the instant case, petitioner has impugned the communication dated 07.02.2005 (Annexure-A) whereunder application filed by the petitioner for approval of Group Housing has been rejected and said right of the petitioner to seek approval stems out of the FWA entered into between the petitioner and GOK and the consequential agreements. It is agreed between the parties that under clause 3.1.1 it is the obligation of the GOK to use its best efforts to grant and cause its Governmental Instrumentalities, Government of India and its instrumentalities to grant, all approvals required in connection with the Infrastructure Corridor project including the approvals indicated in Schedule II of FWA. The approval under the Town and Country Planning Act, 1961 has been referred at Sl. No. 15 of Schedule II. Respondents - 1 and 2 being the statutory authority conferred with the power under the Karnataka Town and Country Planning Act to accord approval for the Proposed Development Plan submitted by the petitioner, they are required to examine the application filed by petitioner for Group Housing and approve or reject said plan in accordance with the statutory provisions. In fact, petitioner by its communication dated 03.07.2014 (Annexure-H13) addressed to first respondent has contended that on account of development plan for Group Housing having not been approved, Section 15 which is a deeming provision under the Town and Country Planning Act, 1961 would be applicable. In other words, petitioner has sought for enforcement of statutory right. As such, the contention of respondents that petitioner has to avail the remedy available under clause 4.1.2 of FWA cannot be accepted. At the cost of repetition, it requires to be noticed that when the application of the petitioner for grant of approval of Group Housing was not disposed of by first respondent, petitioner had approached this Court in W.P. Nos. 57249- 250/2013 and 57266-267/2013 which came to be disposed of by the Division Bench by order dated 16.12.2014 (Annexure-J) in the light of statement made by the Planning Authority namely, first respondent herein. The statement so made which came to be recorded by the Division Bench in the said writ petitions reads:2. Before the petitions could be heard on merits, a statement is proposed to be made for BMICAPA, which being acceptable to the petitioners, the petitions are to be disposed of in terms of the statement as under:The applications dated 05.05.2012 and 21.04.2013 (both at Annexure-F in each set of petitions) shall be considered by the BMICAPA within a period of three months and the decisions thereon shall be communicated to the petitioners by the BMICAPA on or before 15.03.20153. Accordingly, making the above statement, the order of the Court, by consent, the petitions are disposed of in the aforesaid terms, with no order as to costs. Since none of the contentions of the parties are considered or pressed at this stage, the rights and contentions of the parties remain open to be agitated, if need be, in future(emphasis supplied by us)18. In the said writ petitions, GOK was also represented by the Special Government Advocate and the statement made by the first respondent in the said proceedings would clearly indicate that application of the petitioner was required to be considered under the provisions of the Karnataka Town and Country Planning Act, 1961 and as such, it came to be considered on merits and has been rejected on five (5) grounds as already noticed hereinabove. Hence, these writ petitions being dismissed on the ground of petitioner having remedy under the FWA does not arise. Petitioner having sought to enforce statutory right as well as the impugned communication stemming out of FWA being challenged on the ground of misuse of statutory powers by the respondent - authorities, contention raised with regard to maintainability of writ petitions is to be necessarily held as untenable and said contention is liable to be rejected19. It would not be out of context to state that the very same petitioner had sought for issuance of commencement certificate for residential layout plan relating to land measuring 14 acres 35 guntas in Sy. No. 27/2A of Kommaghatta village, Kengeri Hobli, Bangalore South Taluk and 17 acres 39 guntas in Sy. Nos. 164/4(P), 164/5, 165P, 166P, 167/1P, 168(P), 241(P), 242(P), 247(P), 248(P), 252(P) of Kengeri village, Kengeri Hobli, Bangalore South Taluk enclosing therewith layout plan. Since portions of land in Sy. No. 27/2A measuring 7.27 acres was reflected in ODP as Park, Open space/Traffic and transportation/agricultural, petitioners herein sought for change of land use and as such, petitioners had requested first respondent - authority herein to recommend to the Government for change of land use. This request was turned down by first respondent by its decision taken at its 33rd General Meeting held on 29.05.2012 and first respondent had resolved to place the matter before High Level/Empowered Committee. Being aggrieved by said decision, petitioner herein approached this Court in W.P. Nos. 37298-299/2013 and Division Bench by order dated 22.11.2013 allowed the said writ petition on the ground first respondent being the Planning Authority is bound to take its decision in accordance with Section 14A of the Act. Further direction was also issued to first respondent to consider the request of petitioner for change of land use strictly in accordance with the provisions of Section 14A of the Act. Similar direction had also been issued to first respondent by Division Bench of this Court in W.P. Nos. 37300-301/2013 by order dated 22.11.2013. In the said writ petitions, State namely, third respondent herein had been arrayed as second respondent and was represented by learned Advocate and in the said writ petitions, there was no plea raised with regard to maintainability of said writ petitions. As such, third respondent herein cannot be permitted to raise said ground in these writ petitions by attempting to improve its case step by step. Even otherwise, on merits also, we have held said contention not being tenable for the reasons already recorded20. That apart, contract in question also having element of public interest, we are of the considered view that writ petitions are maintainable and as such, contention raised regarding non-maintainability of writ petitions stands rejected.(emphasis supplied)The High Court then considered point No. 2 and by referring to clause 1.1.3 in the Tripartite Agreement dated 9.8.2002, held that it was a clear admission of the State that stage-1 of the infrastructure corridor would include 10 (ten) interchanges and Townships. On that basis, the High Court held that the Planning Authority ought not to entertain any doubt regarding the Townships being established at the interchanges. Further, the High Court in the first round of litigation in H.T. Somashekar Reddy (supra) had held that Townships can be established by the Project Proponents under the FWA. It extracted paragraph 66 of the said decision in support thereof. The High Court then examined the first ground on which the application dated 5.5.2012 was rejected by the Planning Authority and observed thus: -23. The Outline Development Plan (for short ODP) came to be approved by the Government of Karnataka on 12.02.2002 as per Annexures-L and L-1 respectively and same would indicate that area proposed by the petitioner for putting up residential buildings would fall within yellow zone/residential zone and thereby plan submitted by petitioner is in compliance with the zoning regulations and permitted under the ODP. In fact, plan submitted by petitioner along with application dated 05.05.2012, as rightly pointed out by Sri. D.L.N. Rao, learned Senior Counsel appearing for petitioner when juxtapositioned with the ODP, it would clearly demonstrate that plan submitted by the petitioner is in conformity with the zoning regulations. In fact, Honble Apex Court by its order dated 03.11.2009 passed in C.P. No. 96/2007 has directed that project should be completed as per the ODP dated 12.02.200424. Under FWA Clauses 3.1.1, 3.2.3, 3.2.5 and 3.2.6 it is incumbent upon Government of Karnataka (for short GOK) to make best efforts to grant and cause its instrumentalities all approvals required in connection with project including approvals specified under Schedule 2 of the agreement whereunder it is clearly specified that petitioner would receive the requisite permissions, approvals, sanctions and/or licences.... under the Acts and Rules of GOI and GOK as specified thereunder. This would also include granting approval under Karnataka Town and Country Planning Act, 1961. In fact, under Clause 3.2.3 it is agreed that GOK would not restrict the use of land in any way and petitioner would have freedom and discretion to develop and use the land as generally contemplated by the agreement and it would also be incumbent upon the GOK to zone and re-zone and caused to be done in a manner consistent with use in the infrastructure project as contemplated under the agreement and under Clause 3.2.5 it is understood by GOK that development of townships would have many components and take many forms including the industries, businesses and services contemplated in Schedule 4 of FWA25. In the light of above findings, contention raised by the learned Senior Counsel appearing for respondent No. 3 with regard to petitioners could not have approached the first respondent directly for plan approval on the ground that all approvals required in connection with the infrastructure corridor project had to be granted by the High Level Empowered committee consisting of members from each affected ministries of GOK, would not hold water and complete answer to such technical plea being raised has been laid to rest by the Honble Apex Court in its judgment rendered on 20.04.2006 in the matter of STATE OF KARNATAKA AND OTHERS vs. ALL INDIA MANUFACTURERS ORGANIZATION reported in (2006) 4 SCC 683 whereunder it has been held to the following effect:In the future also, we make it clear that while the State Government and its instrumentalities are entitled to exercise their contractual rights under the FWA, they must do so fairly, reasonably and without malafides; in the event they do not do so, the Court will be entitled to interfere with the sameHence, first ground on which plan approval/permission has been refused cannot be sustained and it is liable to be rejected and accordingly it stands rejected.(emphasis supplied)23. The High Court then examined the second ground in the impugned communication dated 7.2.2015 and observed that the document was never demanded by the Planning Authority24. While dealing with the third ground, in the impugned communication, it noted that the entire cost of acquisition of the land in question and implementation of the project, was to be borne and carried out by the Project Proponents. The State, on issuing notification under Section 4A(1) of the KTCP Act on 13.7.1999, had notified the appellant No. 1 (in C.A. Nos. 2116- 2128/2020) to be a separate Planning Authority for the infrastructure corridor in question. And that Authority had prepared ODP/Master Plan for the new planning area. Relying on the observations in All India Manufacturers Organisation (supra), the High Court opined that the lands have been acquired for the Project which is an integrated infrastructure project and not limited only to construction of road as indicated in the impugned communication. It once again relied on clause 1.1.3 of the Tripartite Agreement and also the communication dated 19.12.2013 and noted that it was not open to the Cabinet to unilaterally cancel the Tripartite Agreement dated 9.8.2002. It then noticed the amendment of Section 2(7a) of the KIADA Act, which defines industrial infrastructural facilities. It then moved over to consider the issue about return of the subject lands to the State Government after 30 years and for that, referred to the recitals in the sale deeds. The High Court held that it is agreed between the parties that what is to be transferred back is Transferred Toll Road Assets, as defined in the FWA on completion of the concession period. As regards the Transferred Township Assets, clause 7.2 of the FWA was adverted to and it concluded as follows: -37. A plain reading of expression Transferred Toll Road Assets, Transferred Township Assets, along with Clause 6.8 of FWA, it would indicate that petitioner has to transfer to GOK at the end of concession period, Transferred Toll Road Assets upon terms and conditions mutually agreed by the parties as set forth in Clause 6.8. Thus, there is no ad-idem between the parties with regard to townships being transferred by the petitioner to GOK. Under Schedule 5 it is more specifically indicated as to the assets, which are to be transferred in the township by the petitioner to the GOK. It reads:SCHEDULE 5Transferred Township Assets1. Right of way relating to the public roads in the Townships other than the Toll Road2. Buildings solely housing municipal offices3. Fire Station and related fire fighting equipment5. Employment of such employee employed in connection with the civil operation of the Township as mutually agreed6. Such other assets as may be mutually agreed between GOK and the CompanyThus, what is agreed under FWA and supplemental agreements by petitioner with GOK is to transfer the assets of townships as specified in Schedule - 5 of FWA and nothing new can be added or read into it38. In fact, contention now raised in the present writ petition was also the plea put forward by State Government before the Division Bench in the matter of J.C. MADHUSWAMY AND OTHERS vs. THE STATE OF KARNATAKA AND OTHERS in W.P. No. 45386/2004 (GM-PIL), which came to be considered and rejected. Same was also affirmed by the Honble Apex Court in the matter of STATE OF KARNATAKA AND OTHERS vs. ALL INDIA MANUFACTURERS ORGANISATION reported in (2006) 4 SCC 683 whereunder Honble Apex Court has negatived said contention as already observed herein above39. Thus, a combined reading of the above clauses in the FWA and the agreements would clearly indicate as to what assets would revert back to the Government and the developments that would take place in the subject lands other than what has been mentioned in clause 6.8.3 which would revert back to the State Government. As such, plea now raised by third respondent with regard to township established by the petitioner is required to be transferred to GOK cannot be accepted and it stands rejected.(emphasis supplied)The High Court thereafter adverted to the ODP/Master Plan prepared by the Planning Authority and opined that it defines the developmental activities to be carried out at the interchanges. After extracting the relevant portion thereof and adverting to the correspondence between the Public Works Department (PWD) of the State and the Planning Authority and the discussion during the 34 th General Meeting of the Planning Authority, the High Court concluded that interchange areas at link road and peripheral road are permitted for residential developments as per the FWA. It then went on to consider the argument of single plot and held that the plan submitted by the Project Proponents was in respect of one single plot, wherein they had proposed to develop group housing block wise. The High Court was also impressed by the argument of the Project Proponents that the Department of Town and Country Planning in respect of these very Project Proponents had granted approval for residential layout in Survey No. 15/1 (part), 16 & 18 (part) measuring 15 acres 38½ guntas at Varashansandra Village, Kengeri Hobli, Bangalore North Taluk for allotting sites to land losers followed by issuance of Commencement Certificate dated 7.3.2014. Therefore, the High Court went on to observe that it would not lie in the mouth of the Planning Authority to approbate and reprobate on the same subject matter. The High Court also adverted to the permissions accorded by the Planning Authority for setting up housing scheme by private persons nearby interchanges. After referring to those instances, the High Court concluded that the Planning Authority was adopting policy of pick and choose for grant of approval or sanction25. As regards the fourth ground in the impugned communication, the same was also overturned on the finding that the Authority committed factual error in that regard. The High Court opined that the plan submitted by the Project Proponents did not violate any condition26. Resultantly, the High Court was pleased to set aside the impugned communication dated 7.2.2015 rejecting the application preferred by the Project Proponents for permission to construct group housing scheme at the location(s) referred to in the application dated 5.5.2012 and issued a direction to the Planning Authority to grant Commencement Certificate as sought by the Project Proponents27. Feeling aggrieved, the Planning Authority and the State have filed separate appeals by special leave, assailing the impugned judgment.

Reasoning:
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.