BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY & ANR. versus NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED & ORS.
[2020] 8 S.C.R. 782, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
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BANGALORE MYSORE INFRASTRUCTURE
CORRIDOR AREA PLANNING AUTHORITY & ANR.
v.
NANDI INFRASTRUCTURE CORRIDOR
ENTERPRISE LIMITED & ORS.
(Civil Appeal Nos. 2116-2128/2020)
MAY 19, 2020
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Karnataka Town and Country Planning Act, 1961 –
Development of Integrated Infrastructure Corridor and Finance
Project (IICFP) between Bangalore and Mysore, Karnataka,
consisting of residential, industrial and commercial facilities –
Framework Agreement (FWA) executed between State and
respondent no.1, followed by Supplementary agreements and a
Tripartite agreement between the State, respondent nos.1 & 2 (both
jointly called Project Proponents) – Modified development plan
submitted by Project Proponents for permission to set up group
housing scheme at location other than those demarcated for
Townships in the FWA and Infrastructure Corridor Project
Technical Report (PTR) – Eventually, the Planning Authority
rejected the modified plan – High Court quashed the said
communication; directed the Planning Authority to issue
Commencement Certificate to the Project Proponents – Held: PTR
suggested creation of seven Townships but, in the final FWA, only
five Townships were approved – Project Proponents are obliged
to construct the five Townships at the demarcated location(s) only
and to the extent of land specified therefor in the PTR, which
applies proprio vigore to the expression “Townships” in the FWA
–
Modified proposal submitted by the Project Proponents for
developing 42 acres 30 guntas of land as group housing scheme
was not for setting up of Township as such – Neither the PTR nor
the FWA envisaged 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 contained therein – To  relax or modify the same,
prior permission of the State was mandatory in terms of Article 7.1,
FWA – No proposal for the same was submitted to the State by the
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Project Proponents – Further, Project Proponents could not have
directly approached the Planning Authority for approval of
modified proposal replete with deviations – Judgment of High Court
set aside – Project Proponents at liberty to approach the State for
prior permission allowing them to deviate from the stipulations/
specifications in the FWA and the PTR – Karnataka Industrial
Areas Development Act, 1966 – Acquiescence/Waiver.
Allowing the appeals, the Court
HELD: 1.1 The Outline Development Plan (ODP)/Master
Plan was prepared by the Planning Authority for the new planning
area and had received approval of the State. 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 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, 1966. Later on,
the Project Proponents submitted modified development plan 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 present (fifth) round of
litigation 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, subject writ petitions
were filed before the High Court, which have been disposed of
by the common judgment and order of the Division Bench. The
High Court posed wrong questions to itself and that led to the
erroneous and untenable conclusion deduced by it. The
fundamental issue is: whether the subject modified plan
submitted by the Project Proponents directly to the Planning
Authority for approval is replete with deviations and/or violation
of the stipulations and specifications in the FWA? In that, the
FWA had circumscribed the user of the land in terms of the
location(s), as well as, the area thereof for implementation of the
Project. If so, was it imperative for the Project Proponents under
the FWA to obtain prior approval of the State including that of
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the Empowered Committee? And if that was declined or granted
in part, should they take recourse to remedy of resolution of
disputes or through arbitration mechanism, as provided in the
FWA itself? If all these questions were to be answered in favour
of the Project Proponents, only then the Court could be called
upon to examine the justness of the four reasons recorded by
the Planning Authority. The High Court hastened to examine the
justness of the reasons given by the Planning Authority for
rejecting the proposal, vide the impugned communication dated
7.2.2015. The Integrated Infrastructure Corridor and Finance
Project (the Project) was conceived and formalised to construct
a privately financed infrastructure corridor and seven new
Townships between Bangalore city and Mysore city in Karnataka
State. The Project also included construction of the southern
section of the Bangalore City Outer Peripheral Road. The
infrastructure corridor was to include a modern, four-lane
(extendable to six-lane) limited access expressway; potable
water, sewage treatment, and electric power transmission
facilities; and fibre optic communication cables. The southern
section of the Outer Peripheral Road was to link the
infrastructure corridor with the region’s entire highway network.
The report (PTR) plainly sets out that the seven new Townships
were to be organic, self-sufficient communities, each with its own
unique economic base and
directly served by the infrastructure
corridor. All this would fulfil the National and State policy goals
for population dispersion, infrastructure modernisation and
economic development, and inevitably, economic and
infrastructure privatisation. As a limited-access expressway with
a continuous barrier on either side, the road was intended to
prevent ribbon development, increase efficiency of individual
travel and cargo movement, and improve vehicle safety. It also
notes that it was intended to provide access to existing and
proposed Townships, for which nine (9) interchanges were to be
constructed along the length of the expressway. Location(s) of
the interchanges, as well as, the “Townships” area were clearly
demarcated in the PTR. Section I of the report (PTR) deals with
topics such as Socio- Economic Profile, Highway Planning
Issues, Recommended Scheme, Traffic Data and Analysis,
Engineering Design, Bridges, Initial Environmental Examination,
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Cost Estimate, Privatisation of Highway Projects, Appendix-I and
Appendix-II. Under topic “Recommended Scheme”, the details
of 
the 
Expressway, 
Underpasses/Overpasses, 
Cattle
Underpasses, Utilities Road, Interchanges, Service Areas, Toll
Plazas, Central Administrative Complex, Express Lighting, City
Centre Access etc. have been duly elaborated including their
exact location and other essential specifications. The project
report (PTR) was deliberated and eventually translated into a
formal decision of the State with some modifications and changes
to the recommendations made therein. Finally, the Framework
Agreement (FWA) was executed between the State and NICE.
Even this agreement at the outset - in the recitals,
unambiguously refers to the PTR and the necessity to implement
the Project  as finally approved by the Government in larger
public interest. 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. [Paras 7, 11-14, 36-40][799-E-
G; 800-A-C; 820-D-H; 821-A; 825-B-C; 835-G-H; 836-A; 838-
E-F]
1.2 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. 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 problems. The FWA executed between
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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
(4th 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 Project”. From 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 such. The Townships would, however, comprise
of not only housing, but also schools, hospitals, shopping
complexes, parks and open spaces as noted in Schedule 4.
Besides Schedule 4, it may be appropriate to advert to Schedule
1, which deals with the total Land to be used for the
Infrastructure Corridor Project. The bifurcation of the extent of
land to be used for different activities, such as Toll Road and
Township areas township-wise, is also specified. To 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.  The Project Proponents are obliged to
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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 constructions. 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 itself. Article 3 deals with the obligations of the
State for implementation of the Project referred to in the FWA.
Considering 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 Expressway. [Paras 41-44][838-H; 839-A-F; 840-
B-C; 841-H; 842-D-F; 844-D; 848-C; 850-C-D]
2.1 The next question is: whether the stipulations and
specifications in the FWA regarding the scope of work and the
application of both parties stood modified or altered due to
supplementary agreements dated 6.10.1999 and 31.3.2000?
Even on a fair reading of these agreements, 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
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supplementary agreements, however, deal with other aspects
with which the Court is 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 Court fails 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
Corridor”. Indeed, 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 FWA. The thrust of the argument of the Project
Proponents is that housing is a permitted usage, in terms of the
ODP/Master Plan. For, the area for which the proposal for group
housing scheme had been submitted is within yellow zone/
residential zone. The question is: whether the Project
Proponents can rely solely on ODP/Master Plan, notified by the
Planning Authority in exercise of statutory function as a Planning
Authority (for the entire area including the Project area)? The
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
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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). 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 PTR. [Paras
45-47][850-E-G; 851-B-H; 852-A-D]
2.2 The second round of litigation was again a public
interest litigation to question the land acquisition proceedings
initiated by the State for implementation of the Project. The
group of writ petitions came to be disposed of by the Division
Bench of the High Court,
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. Neither the judgment rendered in appeal
by this Court in All India Manufacturers Organisation nor the
observation found in the order dated 3.11.2009 (passed by this
Court in Contempt Petition (C) No. 144/2006 and connected
contempt petitions in Civil Appeal Nos. 3492-3494/2005) 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
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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 appeals. 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 7.1. For that reason, the Planning Authority
had informed the Managing Director, NECE vide letter dated
28.5.2012 to obtain NOC from the concerned authorities.
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 obtained. [Paras 4, 49-51][797-E-G; 798-A; 854-E-H;
855-A-C; 860-D]
State of Karnataka & Anr. v. All India Manufacturers
Organisation & Ors. (2006) 4 SCC 683 : [2006] 1
Suppl. SCR 86 – held inapplicable.
2.3 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
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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 FWA. Indeed, 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. It may be assumed
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. 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. 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 Authority. [Paras 52,
53][863-C-D; 865-F-H; 866-D-F]
3.1 Much emphasis was placed on the fact that the
appellants had permitted the Project Proponents to construct
housing complex at a location outside the demarcated area for
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the five Townships referred to in the FWA. Similarly, as the
stated location was falling in yellow zone being residential, the
other neighbouring private land owners were permitted to
develop their property for housing complex. This 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 FWA. 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 Proponents. [Paras 54,
55][866-G-H; 867-A-D]
3.2 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,  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
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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
countenanced. It
is urged that this Court had held that it would
be open to the Project Proponents to carry on construction work
of housing on lands which are not falling within the Townships
area, if the same were otherwise permissible under the ODP/
Master Plan and the town planning regulations. This submission
is founded on complete misreading of the observations in the
decision of this Court in All India Manufacturers Organisation.
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). 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
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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.
Even if it can be considered as a question of law, the same does
not arise in the fact situation of the present case. [Paras 56-
58][867-E-H; 868-A-H]
3.3 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. Prior approval of the
State for deviation from the stipulations and specifications in the
FWA is the quintessence. Further, the dictum in M.
Nagabhushana (in third round of litigation which challenged the
acquisition proceedings initiated for implementation of the
Project. That challenge was rejected by the Division Bench of
the High Court. The said proceedings culminated  with the
decision of this Court in M. Nagabhushana) will also be of no
avail to the Project Proponents as it does not militate against
the Planning Authority and State, in particular. The direction
issued by the High Court in the impugned judgment, in any case,
cannot be countenanced in law. But this question has become
academic for the view 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. The impugned
judgment of the High Court is set aside with liberty to the
Project Proponents to first approach the State (under Article 7
of the FWA) for its prior permission to allow  them to deviate
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from the stipulations and specifications in the FWA and the PTR.
Further directions issued.[Paras 60, 62, 66-68][869-D-E; 870-
C; 873-E-G; 874-A-B]
M. Nagabhushana v. State of Karnataka & Ors. (2011)
3 SCC 408 : [2011] 2 SCR 435 ; Dakshinamurthy v.
B.K. Das, IAS & Ors. (2010) 1 SCC 64 – held
inapplicable.
Tata Cellular v. Union of India (1994) 6 SCC 651 :
[1994] 2 Suppl. SCR 122 ; Raunaq International Ltd.
v. IVR Construction Ltd. & Ors. (1999) 1 SCC 492 :
[1998] 3 Suppl. SCR 421 ; Association of Registration
Plates v. Union of India & Ors. (2005) 1 SCC 679 :
[2004] 6 Suppl. SCR 496 ; Michigan Rubber (India)
Limited v. State of Karnataka & Ors. (2012) 8 SCC 216
: [2012] 8 SCR 128 ; Badrinath vs. Government of
Tamil Nadu & Ors. (2000) 8 SCC 395 : [2000] 3
Suppl. SCR 573 – referred to.
S.M. Mohan Rao Nadgir v. State of Karnataka & Ors.
Decision dated 28.2.2005 of High Court of Karnataka
in Writ Appeal No. 72/2004 – held inapplicable.
H.T. Somashekar Reddy v. Government of Karnataka
& Anr. 1998 SCC Online Kar 609 – referred to.
Case Law Reference
[2006] 1 Suppl. SCR 86
held inapplicable
Para 4
[2011] 2 SCR 435
held inapplicable
Para 5
[1994] 2 Suppl. SCR 122
referred to
Para 22
[1998] 3 Suppl. SCR 421
referred to
Para 22
[2004] 6 Suppl. SCR 496
referred to
Para 22
[2012] 8 SCR 128
referred to
Para 22
(2010) 1 SCC 64
held inapplicable
Para 59
[2000] 3 Suppl. SCR 573
referred to
Para 65
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v.
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CIVIL APPELLATE JURISDICTION : CIVIL APPEAL NO.
2116-2128 OF 2020.
From the Judgment and Order dated 15.10.2019 of the High
Court of Karnataka at Bengaluru in Writ Petition Nos. 16576-77/2015
and 18481-91/2015(GM-RES).
With
C.A. No. 2129-2141/2020
C.A. Sundaram, Chander Uday Singh, Mr. Mukul Rohatgi,
Dr. A.M. Singhvi, Sr.Advs., Ms. Anitha Shenoy, Shailesh Madiyal,
Sudhanshu Prakash, Kartik Anand, Rohini Musa, Zafar Inayat, Ms.
Sanjana Grace Thomas, Abhishek Gupta, Shubhranshu Padhi, Ms. Sruti
Chaganti, Ashish Yadav, Rakshit Jain, Vishal Banshal, Mahesh Agarwal,
Ankur Saigal, Anirudh Bhatia, Rohan Pratap Talwar, Ms. Aashna
Agarwal, Ms. Abha Saigal and E. C. Agrawala, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. These appeals filed by Bangalore Mysore Infrastructure
Corridor Area Planning Authority1 and the State of Karnataka2 directed
against the common judgment and order dated 15.10.2019 passed by
the High Court of Karnataka at Bengaluru3 in Writ Petition Nos.
16576-16577/2015 and 18481-18491/2015 (GM-RES), whereby the
High Court quashed the communication bearing No. BMICAPA/339/
Praa.Pra.Pa./1541/2011-12 dated 7.2.2015 issued by the Planning
Authority rejecting the application made by the respondent No. 1 –
Nandi Infrastructure Corridor Enterprise Limited4 and respondent No.
2 - Nandi Economic Corridor Enterprises Limited5,6, dated 5.5.2012, for
permission to
develop a group housing scheme under the Framework
Agreement dated 3.4.19977 in different survey numbers at Kommagatta
village, Kengeri Hobli, Bangalore South Taluk (at interchanges 5/7 of
peripheral road) covering 42 acres 30 guntas of land. The High Court
1 For short, “the Planning Authority”
2 For short, “the State”
3 For short, “the High Court”
4 For short, “NICE”
5 For short, “NECE”
6 NICE and NECE are jointly referred to as “the Project Proponents”, for short
7 For short, “the FWA”
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additionally directed the Planning Authority to issue Commencement
Certificate to the Project Proponents in terms of application dated
5.5.2012, within six weeks from the date of receipt of copy of the High
Court’s order.
2. This is the fifth round of litigation pertaining to the Integrated
Infrastructure Corridor and Finance Project8 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 Report9 dated August, 1995, as amended.
3. 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 Investigation10. That challenge was
rejected by the Division Bench of the High Court vide judgment and
order dated 21.9.1998 in Writ Petition No. 29221/199711 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 limine.
4. 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
8 For short, “the IICFP” or “the Project”
9 For short, “the PTR”
10 For short, “the CBI”
11 Reported as H.T. Somashekar Reddy vs. Government of Karnataka & Anr., 1998
SCC Online Kar 609
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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.12.
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.13.
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: -
“ORDER
(i) Writ petitions are allowed.
(ii) Communication bearing No. BMICAPA/339/Praa. Praa.
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
12 (2006) 4 SCC 683
13 (2011) 3 SCC 408
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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 easy.”
8. 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
judgment.
9. 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 9.8.2002.
10. 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 matters.
11. Indeed, the Outline Development Plan14/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 FWA.
12. The State in exercise of its powers under the Karnataka
Town and Country Planning Act, 196115, 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 10.3.2006.
13. In the backdrop of the stated agreements, ODP/Master Plan
and the amendment to Zonal Regulations of ODP/Master Plan, the
14 For short, “the ODP”
15 For short, “the KTCP Act”
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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, 196616.
14. 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 Committee.
15. 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 10.9.2012.
16. The Planning Authority in its 34th 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 Committee.
16 For short, “the KIADA Act”
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17. 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 taken.
18. 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 34th 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
5.5.2012.
19. 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 form.
20. 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
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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 15.3.2015.
21. 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
CORRIDOR AREA PLANNING AUTHORITY
SECOND FLOOR, GATE NO.4, M.S. BUILDING, DR. B.R.
AMBEDKAR VEEDHI,
BANGALORE-560001 TEL:080-22353976 FAX: 080- 22389519
No BMICAPA/339/CC/1541/201 1-12 Date: 07.02.2015
To,
Managing Director
M/s. Nandi Economic: Corridor Enterprises Limited.
No.1, Midford House,
M.G. Road, Bangalore
Sir,
Sub: 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 Hon’ble in W.P. No.57249- 50/2013
(GM.-RES) and 57266-67/2013 (GM-2013 dated
16.12.2014)
2. Your application dated 05.05.2012
3. Your re-application dated 06.01.2015
On verification of your application and documents following
drawback are observed;
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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 space.
2) As per Form-15 (EC) submitted shows that
development agreement is entered with Umang Reality
Pvt. Ltd. Copy of the said agreement not submitted.
3) 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 purpose.
4) 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
shown.
5) Construction of Unauthorized road in the lands in
question has been observed
In view of the above, it is hereby informed that, your proposal is
rejected.
Yours sincerely,
Additional Director, Town and Country
Planning and Member Secretary,
BMICAPA, Bangalore.”
The 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
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disposed of by the Division Bench of the High Court vide impugned
judgment.
22. 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: -
“9…..
(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 India17,
Raunaq International Ltd. vs. IVR Construction Ltd. & Ors.18,
Association of Registration Plates vs. Union of India & Ors.19 and
Michigan Rubber (India) Limited vs. State of Karnataka & Ors.20.
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
17 (1994) 6 SCC 651
18 (1999) 1 SCC 492
19 (2005) 1 SCC 679
20 (2012) 8 SCC 216
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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 accepted.
16. 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 step.
17. 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,
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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 15.03.2015”.
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3. 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 rejected.
19. 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
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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 recorded.
20. 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 regardingthe 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: -
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“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, Hon’ble 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 12.02.2004.
24. 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 FWA.
25. In the light of above findings, contention raised by the
learned Senior Counsel appearing for respondent No. 3
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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 Hon’ble 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 same.”
Hence, 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 Authority.
24. 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
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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 5
Transferred Township Assets
1. Right of way relating to the public roads in the Townships
other than the Toll Road
2. Buildings solely housing municipal offices
3. Fire Station and related fire fighting equipment
4. Police Station
5. Employment of such employee employed in connection
with the civil operation of the Township as mutually
agreed
6. Such other assets as may be mutually agreed between
GOK and the Company”
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Thus, 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 it.
38. 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 Hon’ble Apex Court
in the matter of STATE OF KARNATAKA AND OTHERS vs.
ALL INDIA MANUFACTURERS ORGANISATION reported
in (2006) 4 SCC 683 whereunder Hon’ble Apex Court has
negatived said contention as already observed herein above.
39.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 34th
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
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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 sanction.
25. 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 condition.
26. 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 Proponents.
27. Feeling aggrieved, the Planning Authority and the State have
filed separate appeals by special leave, assailing the impugned judgment.
The thrust of assail is that the High Court has completely undermined
the scheme of the FWA, which was binding on the Project Proponents
and the State. The Project Proponents could develop the project only
as per the specified components of the Project. The FWA was founded
on the extensive exercise of holistic development of the area as
recorded in the PTR. The theme of the PTR was duly deliberated at
different levels and eventually an informed decision was taken by the
Authority to implement the report (PTR) subject to certain changes and
modifications. Consistent with such decision, the FWA was executed
between the Project Proponents and the State. The terms and conditions
set out in the FWA, are self-contained. The parties (Project Proponents
and the State) are bound to comply with the same in its letter and spirit.
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The essence of the FWA can be traced to the recitals therein. To wit,
the Project was necessitated to achieve an orderly development of
Bangalore as a major industrial, commercial and residential city in the
manner prescribed. The contours of development work have been
delineated in such a manner so as to ensure amongst other things,
self-sustaining townships, expressways, utilities and amenities, including
power plants, industrial plants, water treatment plants and other
infrastructural developments, as referred to in the PTR dated August,
1995, as amended. The development work was to promote industrial,
commercial and economic activities, so as to generate new job
opportunities for the residents in and around the infrastructure corridor,
promote tourism, decongest traffic in Bangalore and Mysore, ensure
smooth and safer traffic between Bangalore and Mysore and provide
a world class expressway between the two cities. The utility of the
land that would be offered by the State for the Project was clearly
defined and prioritised. The Project was to consist of a limited-access
toll expressway; electric power transmission line; water pipeline; and
fibre optic telecommunications cabling including construction of southern
section of the Bangalore City Outer Peripheral Road connecting
National Highway (NH)-7 and National Highway (NH)-4. As a
limited-access expressway with a continuous barrier on either side, the
road would
prevent ribbon development, increase efficiency of individual
travel and cargo movement, and improve vehicle safety. Originally, seven
“Township” areas in the entire project were earmarked and clearly
identified, but after due consideration of all aspects, it was decided to
reduce the number of “Townships” to only five, identified as Townships
1, 2, 4, 5 and 7 in the PTR. The “possible business and services” of
the Project have been articulated in Schedule 4 of the FWA to include
real estate and housing as one of the activities.
28. According to the appellants, the proposal submitted by the
Project Proponents was for development of group housing scheme. That
was not in accord with the usage of the land specified in the FWA and
the relevant specifications in the PTR. The PTR as well as FWA
recognise development of “Townships” and not group housing scheme
as such. The two concepts are materially different. Further, the subject
proposal to construct group housing scheme was in area other than the
identified five Townships in the FWA and the PTR, which was not
permissible in terms of the FWA. Besides, the proposal submitted by
the Project Proponents vide communication dated 5.5.2012 to develop
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group housing scheme in the stated area also did not include other
components required to be constructed and provided for in the
Townships. Being a deviation of the FWA, it was essential for the
Project Proponents to first take permission of the State, as provided in
the FWA, which could be granted on the basis of the opinion of the
“Empowered Committee”. Until grant of such permission, it was not
open to the Project Proponents to maintain any application or submit
proposal directly to the Planning Authority merely on the basis of the
ODP/Master Plan and the municipal laws concerning the town planning
scheme under the KTCP Act. It is urged that the High Court posed
wrong questions to itself and proceeded to answer the same, that too
in a manner which is untenable and founded on erroneous assumptions.
Despite the limited relief claimed by the Project Proponents, the High
Court went ahead with the issue of validity of the Cabinet decision of
the State in respect of the tripartite agreement. That was uncalled for.
Similarly, it proceeded to answer the issue regarding the “single plot”
which ought to have been left for consideration of the competent
authority.
29. In substance, the argument of the appellant is that in absence
of prior permission of the State regarding deviation from the FWA, it
was not open to the Planning Authority to process the application/
proposal under consideration. Nor such an application could be treated
as a valid application by the
Planning Authority, for the purpose of
Section 15 of the KTCP Act regarding deemed permission. It is urged
that the proposal submitted by the Project Proponents, if accepted,
would result in allowing development on the toll road or at toll road
interchanges, which cannot be made part of the Townships in view of
the express provision in that regard in the FWA. In case the Project
Proponents were not in agreement with the stipulations in the FWA or
the conditions specified by the competent authority of the State, they
could resort to remedy of resolution of disputes provided for in the FWA
itself, before the Committee or by way of arbitration, as the case may
be. However, the Project Proponents could not have directly approached
the Planning Authority for grant of permission and the High Court for
issue of writ of mandamus against the Planning Authority. In other
words, no relief could be granted to the Project Proponents unless the
State had agreed to the deviation. Significantly, the State had advised
the Planning Authority vide letter dated 19.12.2013 pointing out that,
before taking any decision with respect to change in land use and
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approving residential complex, decision of Empowered Committee
constituted under the FWA be obtained. It is urged that the Project
Proponents were conscious about their obligations. That is manifest
from the letter sent by NICE to Executive Member of the Karnataka
Industrial Development Board21, dated 6.1.1998, including from the
stand taken by them before the High Court in different proceedings. It
is also urged that the PTR and the FWA clearly provide for the sequence
of implementation and execution of the Project and it is open to the
State to insist for execution of Project strictly in that order. The Project
Proponents cannot be allowed to disregard these obligations.
30. It is further urged that the logic invoked by the High Court
is, to say the least, unstatable. Inasmuch as, merely because “Housing”
is mentioned in “Real Estate” column in Schedule 4, it would not follow
that the other components of the “Townships” specified in the FWA
and the PTR are dispensed with. On the other hand, the FWA, if read
as a whole alongwith the relevant stipulations in PTR referred to in
FWA, it would be evident that the Project ought to be implemented in
the manner specified therein including the establishment of Townships.
Housing scheme would only be one of the components of the
“Townships” to be constructed at the designated location of the five
Townships. That the lands on which development was proposed were
allotted to the
Project Proponents for implementation of the Project only
as per the FWA with obligation to retransfer the “Transferred Toll Road
Assets” back to the State. This has been completely misinterpreted by
the High Court. Further, the High Court was more impressed by the
fact that in the earlier writ petition filed by the Project Proponents, the
Planning Authority had agreed to consider the modified proposal dated
5.5.2012 submitted by the Project Proponents. The assurance so given
by the Planning Authority cannot be the basis to disregard the binding
obligations of the Project Proponents flowing from the FWA regarding
the manner in which the Project should be taken forward.
31. The appellants urge that the fact that permissions were granted
by the Planning Authority in respect of the neighbouring lands of private
persons for construction of group housing complex or for that matter
given to the Project Proponents in respect of some other area, cannot
be the basis to disregard the obligations flowing from the FWA and the
PTR. The housing scheme to be constructed by the Project Proponents
21 For short, “the KIADB”
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must be in the designated areas/location(s) specified as “Townships”
and only in the manner specified in the FWA and the PTR. For, the
FWA refers to the PTR in some measure, and by such reference the
stipulations and specifications regarding the execution of the Project
given in the PTR would get incorporated in the FWA to that extent.
The Project Proponents are obliged to adhere to all such stipulations.
32. Concededly, the right of the Project Proponents flows from
the FWA and is circumscribed by the same. If proposed deviation is to
be ignored, the whole purpose for which the Project has been conceived,
will be defeated. It would not be a development, as planned in the PTR
and approved in the FWA. It is, therefore, not open to the Project
Proponents to rely on general provisions applicable to other lands in
the neighbourhood not covered by the FWA. It is urged that it is essential
to keep in mind that the private land is made available to the Project
Proponents by the State after acquiring it from land owners for
implementation and execution of the Project. The regional or the zonal
plan showing the entire area as yellow zone being residential, would,
therefore, be of no avail to the Project Proponents. The Project
Proponents cannot be heard to say that unless they are permitted to
develop group housing scheme, it would not be possible for them to
finance the Project, inasmuch as, the manner of financing the Project
and generation of revenue is already
specified in the FWA. It is urged
that in any case, the High Court exceeded its jurisdiction in issuing
mandamus against the Planning Authority, directing to issue
Commencement Certificate, as sought by the Project Proponents vide
modified proposal dated 5.5.2012.
33. The Project Proponents, on the other hand, would reiterate
the stand taken by them before the High Court and which had found
favour with the High Court. According to the Project Proponents, the
High Court in the facts of the present case, was justified in not only
quashing the communication issued by the Planning Authority, dated
7.2.2015, but also directing the Planning Authority to issue
Commencement Certificate, as prayed in terms of the modified proposal
dated 5.5.2012. According to them, the State authorities including the
Planning Authority have been obstructing the implementation of the
Project, which has been approved long back and elucidated in the FWA
dated 3.4.1997. The group housing scheme is one of the activities clearly
permitted by the FWA. And being a permissible activity, it was
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unnecessary for the Project Proponents to approach the State or the
Empowered Committee, as the case may be. As a matter of fact, the
Empowered Committee is not a statutory Committee. It is only a
facilitation Committee under the FWA to ensure smooth implementation
of the Project. In any case, the four grounds articulated in the impugned
communication dated 7.2.2015 issued by the Planning Authority, make
no reference to the requirement of obtaining prior approval from the
State or the Empowered Committee. The State cannot be heard to raise
any objection in that regard in the present proceedings, as it did not
raise the same in the earlier writ petition filed by the Project Proponents
bearing Writ Petition Nos. 57249-57250/2013 (GM-RES) and
57266-57267/2013 (GM-RES), to which it was made party. In fact, an
order was passed on the basis of the assurance given by the Planning
Authority that it would consider the modified proposal submitted by the
Project Proponents on 5.5.2012 within specified time. According to the
Project Proponents, the reasons recorded by the High Court are in the
context of the arguments canvassed before it and invited by the parties.
34. It is urged that the entire action of the Planning Authority
and the stand taken by the State is replete with mala fides. This Court
even on the earlier occasion, had taken notice of the obstructions created
by the State authorities in the implementation of the
Project, as can be
discerned from the observations in All India Manufacturers
Organisation (supra). It is urged that the Project Proponents were not
invoking the deeming provision, but have pursued grounds to assail the
reasons stated by the Planning Authority in the impugned communication
dated 7.2.2015. The High Court dealt with all the four grounds noted
by the Planning Authority in the impugned communication and justly
concluded that the same were unsustainable. Having said that, the High
Court was justified in issuing direction to the Planning Authority for grant
of Commencement Certificate, as it was satisfied that no fruitful purpose
would have been served by relegating the Project Proponents before
the same (Planning) Authority. For, it was determined to create
obstruction in the implementation of the Project. It is urged that the
Planning Authority having issued ODP/Master Plan, was obliged to
process the modified proposal submitted by the Project Proponents on
that basis. The land use categorised in ODP/Master Plan refers to outer
peripheral road including the land reserved for interchanges. The High
Court had considered this aspect and accepted the stand of the Project
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Proponents that it is clear from perusal of the ODP/Master Plan that
the land in question can be used for various purposes including
residential, commercial, industrial developments, which would be in
consonance with clause 3.2.3 of the FWA. It is urged that the Project
Proponents had agreed to undertake and carry on the construction of
group housing scheme in strict compliance of the ODP/Master Plan.
The Project Proponents are also relying on the argument of the
Advocate General of the State of Karnataka, reproduced in paragraph
41 of the judgment of the High  Court in Writ Petition No. 3438/2010
dated 15.6.2011, wherein it was pleaded on behalf of the State that the
PTR was only a proposal and the ODP-2004 was the approved
alignment of the road. It is urged that  the State having approved the
ODP/Master Plan, was bound to give effect thereto and cannot be
allowed to approbate and reprobate relying on the PTR/FWA. It is
contended that this Court in All India Manufacturers Organisation
(supra) had negatived the submission of the State that 5119.37 acres
of land was required for the toll road in the PTR, however, in the FWA,
the area was enhanced to 6999 acres. It is urged that the PTR is not
a sacrosanct document and the parties accepted various modifications
to the same. It is also urged that the State cannot be permitted to raise
the same plea, which would be otherwise hit by principles of constructive
res judicata. According to  the Project Proponents,
the issue regarding
the development of land reserved for “Townships” has attained finality
and cannot be raised again in light of the dictum in All India
Manufacturers OrganisAtion (supra) including dismissal of review
petition raising the same ground now urged by the State. Further, there
is no infirmity in the view taken by the High Court, much less regarding
the direction issued vide the impugned judgment.
35. We have heard Mr. C.A. Sundaram, learned senior counsel
for the appellant-Planning Authority, Mr. Chandra Uday Singh, learned
senior counsel for the State and Dr. Abhishek Manu Singhvi and Mr.
Mukul Rohatgi, learned senior counsel for the Project Proponents.
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 it. The fundamental issue is: whether
the subject modified plan submitted by the Project Proponents directly
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to the Planning Authority for approval is replete with deviations and/or
violation of the stipulations and specifications in the FWA? In that, the
FWA had circumscribed the user of the land in terms of the location(s),
as well as, the area thereof for implementation of the Project. If so,
was it imperative for the Project Proponents under the FWA to obtain
prior approval of the State including that of the Empowered Committee?
And if that was declined or granted in part, should they take recourse
to remedy of resolution of disputes or through arbitration mechanism,
as provided in the FWA itself? If all these questions were to be answered
in favour of the Project Proponents, only then the Court could be called
upon to examine the justness of the four reasons recorded by the
Planning Authority. The 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 7.2.2015.
37. For answering the matters in issue in proper perspective, it
would be essential to first understand the purpose of the Integrated
Infrastructure Corridor and Finance Project (the Project). It was
conceived and formalised to construct a privately financed infrastructure
corridor and seven new Townships between Bangalore city and Mysore
city in Karnataka State. The Project also included construction of the
southern section of the Bangalore City
Outer Peripheral Road. The
infrastructure corridor was to include a modern, four-lane (extendable
to six- lane) limited access expressway; potable water, sewage
treatment, and electric power transmission facilities; and fibre optic
communication cables. The southern section of the Outer Peripheral
Road was to link the infrastructure corridor with the region’s entire
highway network. The report (PTR) plainly sets out that the seven new
Townships were to be organic, self- sufficient communities, each with
its own unique economic base and directly served by the infrastructure
corridor. All this would fulfil the National and State policy goals for
population dispersion, infrastructure modernisation and economic
development, and inevitably, economic and infrastructure privatisation.
As a limited-access expressway with a continuous barrier on either side,
the road was intended to prevent ribbon development, increase
efficiency of individual travel and cargo movement, and improve vehicle
safety. It also notes that it was intended to provide access to existing
and proposed Townships, for which nine (9) interchanges were to be
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constructed along the length of the expressway. Location(s) of the
interchanges, as well as, the “Townships” area were clearly demarcated
in the PTR. The relevant extract from the PTR reads thus: -
“1. The intersection of the expressway with the outer
peripheral road
2. The Corporate Counter (Township Site #1)
3. The Commercial Center (Township Site #2) and
Bidadi
4. The Farming Market Center (Township Site #3), the
Industrial Center (Township Site #4), the Heritage
Center (Township Site #5), Ramanagaram and
Channapatna
5. Maddur
6. Mandya
7. The Agricultural Center (Township Site #6) and Arakere
8. The Eco-Tourism Center (Township Site #7) and
Shrirangapatta
9. The intersection of the Expressway with the Mysore
Ring Road
The expressway will bypass congested village roadways,
eliminating conflict between inter-city and local traffic. By limiting
access to the expressway and charging tolls, local traffic will be
discouraged from using the corridor. As a result, the corridor will
significantly reduce travel time between Bangalore and Mysore
to about one and one-half hours. The design of the expressway
will, to the greatest extent possible, maintain the travel patterns
of the rural populace. For the most part, local cross roads,
although separate from the expressway, will be maintained
through the construction of bridges and culverts. Where crossing
the expressway with a local roadway or cattle path is not feasible,
local access roads will connect to nearby
roadways that do cross
the corridor. Bridges and underpasses for local roads, and most
of the large culverts will serve as cattle crossings during the dry
season.
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The expressway and its facilities will be constructed of the best
materials and implemented using state-of-the-art highway
engineering and construction techniques. The expressway will be
constructed to high standards of roadway safety with two
marked lanes in each direction and divided by a wide landscaped
median. The roadway alignment and pavement surface will be
designed to ensure safe travel and a smooth ride. To achieve
this objective, the expressway will be designed using innovative
materials and construction techniques such as jointless cement
concrete pavement. All bridges will be but of modern materials.
The roadway surface will be graded to prevent water pooling
and curves will be banked to enhance driving safety.”
(emphasis supplied)
The map of the concerned area clearly specified the location(s)
of the interchanges and the Townships, forming part of the PTR. As
regards the Townships development, the relevant portion of the PTR
reads thus: -
“TOWNSHIP DEVELOPMENT SUMMARY
The Consortium proposes to design, acquire land for, and construct
seven new townships as part of the Bangalore- Mysore
Infrastructure Corridor. The townships will be developed
entirely by the Consortium, including the provision of
infrastructure municipal services, and recreation facilities.
The creation of the new townships will provide significant
benefits to Bangalore, Mysore, the investment corridor,
and the entire state of Karnataka.
The townships are being
planned to be compatible with their environments. They
will strengthen the rural agricultural economies of the area
and maintain the stability of existing rural settlements.
Each of the proposed townships has a unique identity
determined by its economic base. The urban form,
transportation network, and municipal services serve and are
guided by the basic purpose and theme of the community. The
proposed townships are as follows:
Corporate Center: A home for corporate headquarters,
offices and research and development facilities.
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Industrial Center: A self-sufficient community dedicated to
clear manufacturing and industrial research and
development.
Agricultural Center: A town centered on a university and institute
dedicated to agricultural research and its application.
Eco-tourism Center: An environmental park and cultural
arts center which will become a destination for Indians and
foreign travellers who wish to learn about the region’s
environmental resources, fine and performing arts, and
heritage crafts.
Heritage Center: A pilgrimage site with conference and
traditional healing facilities.
Commercial Center: A residential suburb of Bangalore
with retail, light industry, and municipal support services.
Farming and Market Center: A farming community with a market
center for the sale of locally grown produce.
Beyond these themes, the communities share a common planning
philosophy. The towns must be modern, but accommodate
traditional Karnataka lifestyles, customs, and cultural values.
Transportation access and utility infrastructure will be provided
to a greater ultimate development capacity than will be initially
needed for those areas to be created by the Consortium. This
excess capacity will permit the new townships to
accommodate future growth with minimal disruption.
Each township has a primary town center with supporting
neighbourhood centers. The residential areas are planned
to include a range of housing models and are situated so
that the walking distances to work,
school, or shopping are
not greater than ½ mile (0.9 km). Elementary schools are
located in each neighbourhood. Parks and recreation
facilities are generously allocated to neighborhoods and
town centers. Transportation access to the expressway and
internal vehicle and pedestrian circulation patterns are
considered carefully. …”
(emphasis supplied)
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The other crucial aspect predicated in the PTR is the manner in
which the Project needs to be implemented and prioritized including the
Townships. It reads thus: -
PROJECT SCHEDULING AND PHASING:
The current project schedule and phasing plan is responsive to
the financial plan of the Consortium, and it meets the
transportation and township development needs of the region. A
master schedule illustrating the Bangalore-Mysore Infrastructure
Corridor Project elements and their interrelationships is presented
on the following page.
The project schedule and phasing plan has been developed that
sequentially constructs the expressway elements of the project.
Township development is phased to financially support the
construction of the Expressway and the southern section
of the Outer Peripheral Road. The project phasing can be
summarised as follows:
Construction of the Southern section of the Outer peripheral Road
around Bangalore City between years 1-3.
Construction of the Bangalore link Road between years 1-3
Construction of the northern section of the Expressway (0-55
km) between years 2-4.
Construction of the southern section of the Expressway and the
Mysore Link Road between years 4-6.
Construction of the Bangalore City Elevated Link Road Extension
between years 7-10.
Construction of the townships would begin in year 2 and extend
over a period of 12-15 years.
Development in each of the townships would be
concurrent with
the construction of the community and
municipal services. This will enable the financing of these
township elements and allow the consortium to manage
their cash flow.
Once construction of the various expressway elements has been
completed, tolled traffic operations will commence. For example,
it is envisioned that the Southern section of the Outer Peripheral
Road would open for traffic operations at the end of year three.
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Upon completion of each subsequent expressway section, it would
also be opened for traffic operation.”
(emphasis supplied)
38. Section I of the report (PTR) deals with topics such as
Socio-Economic Profile, Highway Planning Issues, Recommended
Scheme, Traffic Data and Analysis, Engineering Design, Bridges, Initial
Environmental Examination, Cost Estimate, Privatisation of Highway
Projects, Appendix-I and Appendix-II. Under topic “Recommended
Scheme”, the details of the Expressway, Underpasses/Overpasses,
Cattle Underpasses, Utilities Road, Interchanges, Service Areas, Toll
Plazas, Central Administrative Complex, Express Lighting, City Centre
Access etc. have been duly elaborated including their exact location
and other essential specifications.
39. The topic “Townships Along the Corridor” has been
separately detailed in Section-II. The relevant portion of the PTR dealing
with “Townships” reads thus: -
“1. TOWNSHIPS ALONG THE CORRIDOR
This part of the report deals with the analysis of developing
seven urban townships with all infrastructure and civic
facilities along the Bangalore- Mysore expressway.
Historically, the chieftain from Magadi, Kempegowda built
Bangalore during 1597 and established a few towers on the
boundary limits of Bangalore. The Mughals conquered it in 1687.
It is said, it was sold to Chikka Devaraya in 1690 for Rupees
three lakhs. It was Hyder Ali who got it as a personal jagir in
1759. However in 1791, Tippu Sultan was given suzerainty
over
it after the Treaty of Srirangapatnam. After the fall of Tippu at
Srirangapatnam, the same was returned to the Hindu Royalty in
1799. A military cantonment of the British was established in
1809 and Bangalore later on flourished as an administrative centre
since 1830. It grew spectacularly after 1951.
1.3. The population of Bangalore was 12 lakhs during 1961 and
it rose to 29 lakhs as per 1981 census.  In 1981, it was the fifth
most populated city in the country and accounted for 25% of the
population of the state – Hubli-Dharwad, the next urban centre
accounting for a fifth of Bangalore size population.
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1.4. Compared to Karnataka’s growth in population during
1981-91 which was 20.09%, the growth of population of
Bangalore urban area was 59.08% during 1971-81 and 38.00%
in 1981-91 and that of rural Bangalore was 24.30% during
1971-81 and 14.70% in 1981-91.
1.5. As against this, Mysore with a population of 6.52 lakhs in
1991 recorded a growth of 24.97% in 1971-81 and 21.58% in
1981-91 at the district level. Various agencies estimated the
expected population of Bangalore during 2001 as 70 lakhs (Town
Planning Department) and 82 lakhs (anticipated by Bangalore
Water supply and sewage Board). The Comprehensive
Development Plan (CDP) 1984 for 2001 of Bangalore
Development Authority (BDA) projected a population of 70.00
lakhs for Bangalore in 2001. The revised (1995) CDP for 2011
AD proposed land uses for 56,465 hac. as against 43,928 hac.
During 2001. This is in addition to the green belt, surrounding
the conurbation area.
16. The rapid increase in population necessitated a thinking
process to contain Bangalore to a reasonable size, assure
it the desired level of civic and social services to keep its
premier status and direct additional growth to alternate
places in a desirable manner. The acute problems of
Bangalore are increasing level of pollution, pressure on
land, acute shortage of water, inadequate sewaging system
and lack of proper sewage treatment and disposal
arrangements, shortage of power, shortage of
residential
accommodation,inefficient telecommunication system,
paucity of land space within green belt etc.
1.7. Bangalore, located at an elevation of +900m is suffering for
want of a good transport system, inter and intracity wise. A
reliable power supply system to assure 1000mw was planned as
a part of Karnataka power requirement. Tourist and amusement
areas like T.G. Halli Reservoir, Hesarghatta Tank, Bannerghata
National Park and Ramohalli Banyan Tree and Kanva Reservoir
were considered, but no active steps taken. The region lacks the
facility of good environment parks or amusement places.
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The above and many other factors indicate that there is a
need for a policy to establish urban growth centers, with
dependable infrastructure and accessibility to the
metropolitan area along a fast corridor. Examples of this
nature are many in Switzerland, Norway, Mourville away from
Paris in France are just a few instances of polycentred
settlements working as countermagnets, with a strong support
base. The townships along the proposed Bangalore Mysore
Expressway would go a long way in reducing pressure on
Bangalore. These settlements should, however, take into
account the growth pressure likely to be faced by them
after a decade of their completion. Creation of new
settlements is likely to bring in better results compared
to improvements and modification or creating new urban
extensions to metropolitan Bangalore as these actions
need to necessarily serve under severe constraints on the
other facilities like land, transport and power. Usewise for
any unit of expenditure, the efficacy of modifications will be
comparatively less. The environment and purity will only reduce.
But in the case of new settlements, it will be easier to achieve
better results. It is, however, necessary to ensure that the existing
structures and balances in the rural sector are not thoughtlessly
disturbed; the emphasis in the new townships should be for
achieving a high degree of green and low rise and low
density development.
A very important aspect is to give orientation towards
the
direction in which new townships should grow. Referring to
Bangalore, good transport facilities towards Mysore are in the
offing which is a good boost for industrial and tourism growth.
Mysore having an excellent source of shelter, tourism, industry,
and raw materials, will serve very well the purpose of an
important supporting city (as the other end of a corridor of
development with other facilities and settlements dispersed
judiciously in between). Secondly, there are three medium
irrigation projects near about Bangalore viz the Manchanabale
Project, the lggalur project and the Arobele project, which can
yield some water for supporting the growth. Rivers Arakavati
Shimsa and Cauveri are on the corridor towards Mysore. The
Ground Water department ascertained that there is good ground
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water development possibility for making about 33,000 additional
well structures in Bangalore; 41,600 in Mysore and 42,100 in
Mandya. At least it indicates good ground water condition at
depths ranging 50m and more. By far the climatic and physical
conditions in this area are very congenial, compared to some other
areas in Karnataka. Therefore, it is most desirable to develop
the belt as a corridor with settlements of high order of
infrastructure well connected to the two metropolitan towns of
Bangalore and Mysore.
Selection of Townships
1.10 Estimates indicate that the population of Bangalore will reach
85 lakhs by 2011. There is an absolute need to restrict the
population to 70 lakhs by 2011. Even for achieving this objective,
a number of measures to prepare Bangalore for sustaining a
holding capacity of 70 lakhs will be required to be taken. The
proposal now is an effort to absorb almost 7 to 8 lakhs population
in the proposed corridor by developing seven townships (Mandya,
Maddur, Ramanagram and Chanpatna shall be geared to absorb
about 2.0 lakhs additional population). The balance of 6 lakh
population has to be diverted across towards other
countermagnets and some administrative actions taken.
1.10.2 The selection of the seven townships and the need
for land has been done by physical examination of the
present ground level conditions and development. Since an
expressway is being considered, a comprehensive view
has been
taken about the availability of access to the corridor from the
proposed townships each of which will be given an access to
the expressway.
1.10.3 Availability of water is an important consideration. There
are no water sources of perennial nature, barring Cauveri which
can be tapped for water supply to these townships. Ground water
conditions do indicate the presence of water at depths 40 to 50m
between the rocks, but this is not an adequate source to sustain
the nature and level of development. Even the National Water
Policy hints that drinking water for urban areas shall be met from
surface flows, and only in rural areas, extensive dependence on
tube wells may be considered. Heavy exploitation of subsoil water
can reduce the growth of greens. The idea of bringing water from
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Cauveri along the expressway and supplying to the townships is
the only solution. Some water to be tapped trough tube wells and
water ponding by digging lakes can be only auxiliary measures.
1.10.4. Efforts are being made to avoid acquisition of lands which
are under good cultivation. Such lands which are good for
agriculture and gardens are being almost avoided. Forest land is
also being avoided. Since it is necessary to have one expanse of
land of about 2,000 acres and more for about 1.0 lakh population
(or more), search was made for presence of continuous plots of
land, as far as possible, forming a regular geometric figure without
wedges projecting in or out. However in a few cases, a few
villages and major district roads exist on ground in the midst of
such expansive areas. In such cases, the villages and road are
to be integrated suitably with other planning, and some measures
will have to be taken to integrate them with main area. This will
be a right step to encourage the rural settlements adopting new
norms of a system and not distort, or feel disparities.
1.11. The area on the corridor towards Maddur and Mandya are
highly agricultural in character with existing irrigation facilities.
It is for this reason that more townships are located in the
first half of the corridor nearer to Bangalore and only 2
out of seven in the other half of corridor nearer Mysore.
Fig. 3.1 (Section-I) shows the location of the townships and
the areas and the location
of expressway. Where the
township area is away from the expressway, a dedicated road
with good specification is proposed to be constructed up to the
expressway as a part of the township development. They will
be served through the Expressway interchanges.
To avoid speculation, no survey of land has been done. Help of
Topo maps has been taken to know ground conditions. Ground
conditions are further examined by limited walking along. There
are some changes on ground since the last survey work was done
for preparing topo maps. Land use maps of each township
have been prepared to indicate the suggested breakup of
areas. After the land is finally selected and ground survey
done to some extent of precision (the existing maps are
to a scale of 1:50,000), the land uses firmed up and density
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can be finally decided with zoning and other development
components like FAR, Height, Set Backs, Architectural
Control etc.
1.14. The present comprehensive development plan for Bangalore
shows the following land use pattern. In addition, there is a green
belt on the periphery
Residential
43.16%
Commercial
2.91%
Industrial
6.81%
Public and Open Spaces
13.79%
Public and semi public
8.69%
Transportation
20.72%
Unclassified
3.92%
100.00%
1.15. Some townshipsare exclusively designed to promote
industry and one for Environment and amusement. The
land use pattern at city level in Bangalore cannot be
extended for townships outside. The land use pattern in the
other township areas will generally be as below.
Housing
30-50%
Parks, open spaces
15-20% (excl. Agr. University)
Commercial
5-10%
Industrial
0-20%
Roads and Utilities
20%
Municipal & Institutional
5-15%
Total
100%
Subsequent chapters describe the concept of township
layouts infrastructural services and the manner in which
they will be designed and provided.”
(emphasis supplied)
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The Conceptual Aspects of Townships are separately discussed
as second item in Section-II, which reads thus: -
“2. CONCEPTUAL ASPECTS OF TOWNSHIPS
2.1 Problems of the urban community multiply with the increasing
complexity of our age. The physical expansion of cities is running
out of control, and the economic and social consequences
command the attention of civic leadership in Government,
business and industry. The Practical limitation of the pyramidal
form of the city has forced decentralization. When the congestion
at the core becomes unbearable, the inner layers slip out. The
present exercise is to contain this phenomenon by planning the
infrastructural corridor having seven new townships to cater to
the varying and complex needs of the region, along the proposed
expressway connecting Bangalore and Mysore. These are
indicated on the index map.
The new townships would be of relatively small sizes,
designed to encourage pedestrians circulation and maintain
close proximity to surrounding open space. The plans
indicate an abundance of space flowing throughout the community.
The special endeavour has been made to preserve natural
wooded areas or unusual topographical characteristics in all the
towns. The existing villages are assimilated in the overall schemes
of development as they are existing on all sites. The human scale
predominates in the total planning of all the new town ships which
are planned as self-contained communities seeking a balance
between sources of employment, business centres, centre for
fashion technology, medical and other research centres etc. are
suitably located in various townships which are essentially organic
elements in a broad programme of decentralization of the
congested urban centres of Bangalore and Mysore.
In all townships, the floor-space required to be occupied
by people and ground space for circulation has been
carefully worked out. The emerging pattern is a balance
between these elements. The high rise ‘Land Mark’
buildings, for all towns have been thought of essentially
in the commercial sectors, to dominate the skyline and
also to be seen from the Expressway.
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The grid pattern is followed for roads with circles and radials in
some cases. Three types of principal rights of way have been
followed, the respective width being 33.0, 24.5 m and 18.00 m.
Each neighbourhood in the new townships has a small sub
centre for shopping, a primary school, and social facilities.
The secondary schools serve several neighbourhoods.
Fig. 3.1 indicates the general locations of the townships
along 
the 
proposed 
Expressway 
and 
existing
Bangalore-Mysore State Highway No.17. The existing
villages and towns are also indicated. The distance in km is
shown on the drawing along the alignment of proposed
Expressway. There are five townships with in the distance of 40
kms from Bangalore and two townships in the vicinity of Mysore
on either side of the Kaveri River.
Township No.1 assumes great significance due to its proximity
to Bangalore. It is situated on either side of the Expressway on
the fringes of the Outer Ring Road of Bangalore city. The nature
of this township may be roughly identified as a corporate
township providing facilities for Research and Development,
Business Centre, Hotels, Golf Course, Residential, and related
infrastructure. Some facilities from the core of the city could be
shifted here in a planned and organised manner.
The entrance and exit to the township is through an interchange
and toll-booths. This is located on the west of the town. The town
is provided with a Green
Belt on its periphery. Due consideration
has been given to the ecological and environmental factors. The
total area of the township is 2792 acres.
The ‘Land Mark’ buildings are proposed at appropriate locations.
The city is designed as a self-contained entity with all facilities,
including a hospital and a college with appropriate number of
primary schools, high schools and other town requirements.
2.8 Township No. 2 is located about 10 kms from the Bangalore
conurbation boundary. The site is proposed to be developed as a
commercial township, contributing to relieve the pressures of
urbanization.
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Covering an area of 1868 acres, the township is situated about
7-8 kms off the Bangalore-Mysore Expressway and 4 kms from
the existing railway line and state highway No.17 to the south
of the township.
The existing site features are more or less suitably modified
according to the layout with an exception of a few rirulets, natural
water bodies and hillocks and rocky outcrops scattered within
the site boundary. The proposed township site is bounded by two
roads leading to Bangalore from Nejjala and Bidadi towns. A
number of existing settlements are present all around the site
boundary especially towards the south while two settlements fall
within the site boundary.
The basic design of this township revolves around the central
core. This central core is the major commercial, business, services
and institutional hub of the town. The residential area is distributed
all around this central core.
The multifunctional central core offers varied services, right from
a commercial complex to hotel, bus terminal municipal offices,
institutional and office use, hospital, and college, all located within
2 kms from the farthest point in the township and hence confirms
to the standards of human scale, facilitating use of non motorised
form of transport.
The road layout is more or less a grid pattern. Each residential
pocket is to be developed as a self-contained neighbourhood with
facilities like school, playground, park, dispensary, convenient
shopping etc.
The
environmentally friendly nature of the township is emphasized
by developing the township for non- motorised transport system,
encompassing the existing settlements within the overall structure
of the township and provision of a green buffer all along the site
boundary besides the provision of community parks and trees lining
the major roads of the township.
Last but not the least is the link to the proposed Expressway
which will be provided through an interchange on the expressway.
2.9 Township No. 3
xxx
xxx
xxx
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2.10. Town ship No. 4 is about 36-37 kms. west of Bangalore
along the proposed Expressway. The site has an area of about
1660 acres and is meant for the industrial land use. It is intended
to accommodate different types of plots for the various industries.
A green buffer is maintained all round the township and the
environmental considerations shall be well looked after. The site
has an approach from the Expressway. The necessary provision
has also been maintained for the public and semi-public and the
green areas. The town shall be designed on the lines of a modern
Industrial township will all necessary trapping.
2.11. Township No. 5 is north of township no.4. This township
is located near the existing Bangalore-Mysore State Highway
No.17 and also near the existing Railway line.
The site of this township in on the north of the existing village of
Archahakra Halli, which is along the State Highway No.17 from
where an existing roadway leads to the hinterlands. This road
passes through the entire length of the proposed township. This
proposed township has a mix of cultural and residential land use
and it occupies an area of about 2700 acres. The town shall have
a medical centre with a full-fledged hospital with centres for the
study of various types of medical systems like Allopathy,
Ayurveda etc. it will also have a centre for religious studies with
subcentres for all world religion and will accommodate special
centre
for the Vedic studies. Housing also forms the major
component of this township.
Township No. 6   xxx
xxx
xxx
Township No. 7 is in the near vicinity of Mysore City, about 3
km on its outskirts and about 1 km on the north of Kaveri River.
It occupies an area of 4010 acres. The township is designed for
Ecotourism and all facilities have been provided to meet this
target.
This is the township of contrasts. It will have an Amusement
Park, Golf Course and hotels with some residential
neighbourhoods. A town centre with commercial, public buildings
and other necessary infrastructure facilities is provided.
All these townships together provide for necessary infrastructure
support required in this region for perspective requirements.
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The townships will be developed in line with modern town planning
practices. Special consideration should be shown while detailing
open spaces parks and greens. Special attention is to be given
to Agricultural Zone and the Agriculture University where uses
like agriculture, horticulture farming, chilling centers, farm houses
and accessory buildings will be planned.
Since the detailed layout and architectural control & drafting
zoning applicable norms is not within the scope of this report,
this is not attempted; also it is an exclusive work, which has to
be handled separately. However there are certain points which
have links with land use planning and which need to be considered
in development planning. They are listed below.
1. Road hierarchy has to be planned to avoid main traffic
in a subcity going through residential areas.
2. Wind Rose is to be kept in view while treating high rise
buildings vs. low rise buildings.
3. Continuous green may be attempted to allow minimum
public use of motorised transport – encourage cycle or
pedestrian movement.
4. All high rise buildings to be on wide roads only.
5. Drainage and greens to be integrated
6. Low rise buildings to be attempted to harmonize with
environment
7. Energy savings should be an important criterion while
detailing architectural plans.
8. Local zoning to ensure a low noise environment for
schools, hospitals, and residences.”
(emphasis supplied)
40. The project report (PTR) was deliberated and
eventually
translated into a formal decision of the State with some modifications
and changes to the recommendations made therein. Finally, the
Framework Agreement (FWA) was executed between the State and
NICE. Even this agreement at the outset - in the recitals, unambiguously
refers to the PTR and the necessity to implement the Project as finally
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approved by the Government in larger public interest. The relevant
recitals read thus: -
“W I T N E S S E T H
WHEREAS, Bangalore and Mysore are the fastest developing
cities in the State of Karnataka and are leading centres for
industry, trade and commerce, simultaneously attracting tourists
from all over the world;
WHEREAS, the traffic intensity between Bangalore and Mysore
has been very high and will continue to increase with further
growth of industry, trade, commerce and tourism in such cities
and in the State of Karnataka;
WHEREAS, in order to ensure smooth and accident- free traffic
between Bangalore and Mysore, an expressway between the
two cities is proposed;
WHEREAS, in light of the ever-increasing urbanisation
problems and in an effort to achieve the orderly
development of Bangalore as a major industrial
commercial and residential city. GOK has proposed to
promote an integrated infrastructure corridor 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 amended
(collectively, the “Infrastructure Corridor”);
WHEREAS, GOK has been consistently
attempting to attract on
agreeable terms a consortium to industrially and commercially
develop the Infrastructure Corridor in accordance with the vision
of GOK;
WHEREAS, the Kalyani Group, SAB Engineering and
Construction Inc., and Vanasse Hangen Brustlin Inc. (collectively,
the “Consortium”) and GOK entered into a Memorandum of
Understanding dated 20 February, 1995 relating to the further
consideration of the industrial and commercial development of
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the Infrastructure Corridor by the Consortium (the “Memorandum
of Understanding”);
WHEREAS, GOK, upon review, assessment and consideration
of the Infrastructure Corridor Project Technical Report dated
August – 1995 prepared by the Consortium, as amended by the
Government Order (defined below) and the Annexure thereto
(the “Infrastructure Corridor Project Technical Report”) is
satisfied that the interests of the State of Karnataka would be
best served if the Infrastructure Corridor is industrially and
commercially developed as contemplated by the Infrastructure
Corridor Project Technical Report inasmuch as such development
would  promote industrial, commercial and economic growth in
the State of Karnataka generally and in Bangalore and Mysore
and the Infrastructure Corridor specifically create new job
opportunities for the residents in and around the Infrastructure
Corridor, promote tourism, decongest traffic in Bangalore and
Mysore, ensure smooth and safer traffic between Bangalore and
Mysore and provide a world-class expressway between the two
cities;
WHEREAS, GOK issued Order No. PWD 32 CSR 95 dated
20 November 1995 (the “Government Order”) authorizing the
development of the Infrastructure Corridor by the Consortium
as contemplated by the Infrastructure Corridor Project Technical
Report;
WHEREAS, GOK has consented to and acknowledged the
exercise by the Company of the Consortium’s rights under the
Memorandum of Understanding and the Government Order
pursuant to a Consent and Acknowledgement Agreement dated
9th September, 1996 among the GOK and the members of the
Consortium;
WHEREAS, the Company has agreed to industrially and
commercially develop the Infrastructure Corridor and
finance, own and/or operate such developments in the
manner contemplated by this Agreement;
WHEREAS, under the above recited premises, GOK has
undertaken to extend to and provide the Company with the
necessary governmental actions, cooperation and assistance and
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grant the Company rights required for the industrial and
commercial development of the Infrastructure Corridor, including
the services and businesses contemplated in Schedule 4, which
GOK believes is in the best interests of the State of Karnataka
and its citizens because, among other things, it will (i) promote
industrial, commercial and economic growth in the Infrastructure
Corridor, the cities of Bangalore and Mysore and the State of
Karnataka generally, (ii) create new jobs, (iii) provide the State
of Karnataka a much needed world-class expressway between
Bangalore and Mysore, (iv) create a counter-magnet to Bangalore
city and (v) help in promotion and development of world-class
tourism; and
WHEREAS, the Company will assign its rights under this
Agreement to the various Project Companies, each of which will
develop, construct and finance part of the Infrastructure Corridor
Project in a manner to be determined by the Company in
accordance with this Agreement;
NOW, THEREFORE, in consideration of the mutual premises,
covenants and promises herein contained, the Company and
GOK do hereby agree as follows:”
(emphasis supplied)
Suffice 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 etc.
41. Notably, the PTR had suggested creation of seven Townships,
but in the final decision, as noted in the FWA, only five Townships have
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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 problems.
42. 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 (4th 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 Project”. It has been defined
as follows: -
“”Townships” means the townships described as Townships 1,
2, 4, 5 and 7 in the Infrastructure Corridor Project Technical
Report which will be developed by the Company and/or the
Project Companies for the industrial and commercial growth and
other development of the Infrastructure Corridor, and the
provision of roads, supply of water and electricity, street lighting,
sewage, conservancy and such other conveniences and socio-
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economic infrastructure, inter alia comprising of housing schools,
hospitals, shopping complexes, parks and open spaces as set forth
in Schedule 4 attached hereto.”
From 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 such. The Townships
would, however, comprise of not only housing, but also schools, hospitals,
shopping complexes, parks and open spaces, as noted in Schedule 4,
which reads thus: -
“SCHEDULE 4
Bangalore-Mysore Infrastructure Corridor Possible
Business and Services
1. Power
Generation & Transmission
Distribution & Metering
2. Water
Purification & Transmission
Distribution
Reservoirs
3. Sewage
Collection & Treatment
Recycling & Selling the water
Selling by product
4. Tele-communication
Transmission & Switching
Distribution in township
5. Expressway toll facilities
6. Restaurants and Gas Pumps
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7. Interchange Plazas
8. Hospitals
9. Schools
Primary and High Schools Colleges
10. Hotels & Motels (Townships)
11. Real Estate
- Commercial
- Industrial
- Housing
- Municipal
- Rental
12. Garbage
13. Cable TV
14. Parking Authority
15. Entertainment
- Golf Course
- Movie Theatres
- Bars
- Amusement Park
16. Marriage Mandaps
17. Temples and religious activities
18. Convention and Exhibition Centres
19. Land Management
20. Industrial Plants
21. Any other such business area which may emerge from
time to time as permitted by law.”
Besides Schedule 4, it may be appropriate to advert to Schedule
1, which deals with the total Land to be used for the Infrastructure
Corridor Project. The bifurcation of the extent of land to be used for
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different activities, such as Toll Road and Township areas township-wise,
is also specified. Schedule 1 reads thus: -
“SCHEDULE 1
Land
TOTAL
TOTAL
PVT
(Acres)
TOTAL
The figures noted above are approximates.”
To 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 constructions. For, Schedule 2
of the FWA reads as follows:-
“SCHEDULE 2
Approvals
The Company shall have received the required permissions,
approval, sanctions and/or licences under the following acts and
rules of GOI and GOK:
1. Environment (Protection) Act, 1986 – Section 3(1) and
Section 3(2)(v).
2. Environment (Protection) Rules, 1986 – Rule 5(3)(a);
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3. Water (Prevention and Control of Pollution) Act, 1974
– Section 25.
4. Air (Prevention and Control of Pollution) Act, 1981-
Section 21.
5. Clearance and confirmation from GOK that the Land
does not contain reserve forest under the Forest
(Conservation) Act, 1980 – Section 44 and Section 28.
6. Exemption under Section 20 of the Urban Land (Ceiling
and Regulation) Act, 1976 for holding land in the site
falling within the Urban Agglomerations.
7. Declaration by GOK under the appropriate Act and
formation of Greenbelt.
8. Karnataka Stamp Act, 1957 – Section 9 in respect of
stamp duty payable on the amounts secured any by
mortgage deeds executed in connection with the
Infrastructure Corridor Project.
9. Electricity (Supply) Act, 1948.
10. Consent of the Telegraph Authority under Section 4 of
the Indian Telegraph Act, 1985 and Part V of the Indian
Telegraph Rules for the provision of telecommunication
facilities.
11. Permissions approvals under the Foreign Exchange
Regulation Act, 1973 for,
 Offshore borrowings and debt servicing.
 Appointment of and payment to the foreign
contractors.
 Purchase or lease of equipment supplies from
abroad.
 Appointment of and payment to non- resident/foreign
consultants, advisors and experts.
 Consent to remit dividends to non-resident
shareholders.
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 Consent for remittance to non-resident directors.
 Permission for creation of securities in favour of
non-resident lenders.
12. Exemption under Section 9 of Karnataka Stamp Act for
purchase of the Land.
13. Rural Development and Panchayat Raj.
14. Applicable rules of the Irrigation Department of GOK.
15. Town & Country Planning Act, 1961.
16. Karnataka Land Revenue Act and Rules, 1964 and
1965.”
43. 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 itself.
Article 7 reads thus: -
“ARTICLE 7. TOWNSHIPS.
7.1 Development. Each of GOK and the Company acknowledges
and agrees that the industrial and commercial development of
the Townships by the Company is an integral part of the
Infrastructure Corridor Project and its goal of increasing and
promoting industry, trade, commerce and tourism in Bangalore,
Mysore and the Infrastructure Corridor. Accordingly, GOK will
assist the Company in the manner contemplated herein so that
the Company may develop the Townships in the manner
described in the Infrastructure Corridor Project Technical Report
and as authorised in the
Government Order. The Company may
deviate from the Infrastructure Corridor Project Technical
Report in the development of the Townships within the
applicable law to the extent such deviation is required to
enable the Parties to realize the full benefits intended from
development of the Infrastructure Corridor Project and
with prior written approval of GOK which approval shall
not be unreasonably withheld by GOK.
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7.2 Operation and Maintenance. GOK and the Company agree
that the Company shall have the right to operate the Townships.
The Company and GOK shall enter into an agreement negotiated
in good faith by each for the operation and maintenance and in
accordance with applicable laws. Notwithstanding the
previous sentence on the first anniversary of the Township
Completion Date, the Company shall transfer to GOK the
assets relating to the Townships set forth in Schedule 5
and the right of way over the Land that may be required
with respect to such assets, but not including any
ownership interest in any part of the Land (the
“Transferred Township Assets”) and shall assign the
administration of such Townships to GOK or a GOK
Governmental Instrumentality designated by GOK, GOK
shall pay to the Company the sum of Rs.1 for such
Transferred Township Assets and shall assume all
obligations relating thereto and to the administration of the
Townships. GOK shall contract with the Company to provide
to the Townships after such assumption the utilities and amenities
theretofore provided by the Company or its Affiliates or to be
thereafter provided for which the Company shall receive
reasonable compensation agreed to by the Parties in good faith
negotiation. GOK will indemnify and hold harmless the Company
and its Affiliates and each of its and their respective directors,
managers, officers, employees and agents from any and all
expense, loss or claim relating to the
Townships (or any assets
or part thereof) and the administration, management and
operation thereof arising in respect of any date on or after the
date of such possession and assumption.
7.2.1 Deliveries Upon Transfer. Each Party shall deliver to
the other Party all documents and things necessary to effect
the transfer set forth above, including (i) the delivery by the
Company of an agreement assigning and transferring
the Transferred Township Assets, (ii) the delivery by
GOK of an agreement in which GOK assumes all
obligations of the Company relating to the Transferred
Township Assets and the administration, management,
operation and maintenance of the Townships after the
date of such assumption and releases in full the
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Company and its Affiliates from all liability relating
to 
the 
Transferred 
Township 
Assets 
and
such administration, management, operation and
maintenance after such date and (iii) the delivery by
GOK to the Company of Rs.1.
7.2.2 Maintenance. In connection with the transfer
contemplated by this Paragraph 7.2, GOK will offer to the
Company the right to provide all utilities and amenities to the
Townships on terms mutually agreed upon by the Parties. The
failure  of the Parties to mutually agree to the provision of
any such utilities or amenities will entitle GOK to contract the
provision of such utilities or amenities with a third party, GOK
or a GOK Governmental Instrumentality on terms no more
favourable then those offered by GOK to the Company.
7.3 Construction Responsibilities. The Company shall assure that
its construction, development and maintenance obligations in
relation to each Township shall be performed in accordance with
the provisions of this Agreement.
7.4. Completion of the Townships. Within 30 days of the
completion of the full industrial, commercial and other
development, including the services and businesses
contemplated in Schedule 4, of the Townships (including
sale by the Company of those parts of the Townships
intended to be sold as part of the development of the
Townships), the Company shall deliver a notice in writing
to GOK with regard to such completion (The “Township
Completion Notice”).
The Company shall specify in such
Township Completion Notice the date on which full development
of the Townships was completed (the “Township Completion
Date”). The parties understand that the Company will develop
the Infrastructure Corridor Project in a coordinated manner in
accordance with the terms of this Agreement and that work at
anytime may be conducted on all or any part of the Land with
respect to the Toll Road, the Townships, the Water Supply
Facilities, the Telecommunication Facilities, the Power Plants and
the utilities and other supports ancillary thereto in furtherance of
the Infrastructure Corridor Project. The basic infrastructure
for the Townships will be substantially completed (i.e.
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minimal reasonable facilities that enable some people to
be able to live in the Townships shall have been
completed) within twelve (12) years from the date of the
Toll Road Completion Notice. The Township Completion
Date in no event shall be later than the date which is thirty
(30) years from the date the Toll Road Completion Notice
as or should or would have been delivered pursuant to the
provisions of Paragraph 6.6.2 and clause (iii) of Paragraph
6.6.3.
7.5 Warranties. The Company warrants to GOK that:
7.5.1 The Company will industrially and commercially develop
the townships so as to promote the industry, trade, commerce
and tourism in such Townships as intended by the
Infrastructure Corridor Project Technical Report;
7.5.2 all the skill and care to be expected of a professionally
qualified and competent designer experienced in work of
similar nature and scope as that required in connection with
the development of the Townships will be exercised in the
design of the Townships;
7.5.3 the developments in the Townships will, when completed,
comply in all material respects with all applicable Laws of
India;
7.5.4 the Townships will be developed using proven up-to-date
good practices which are consistent with applicable Laws of
India;
7.5.5 no goods or materials generally known to be deleterious
or otherwise not in accordance with good engineering practice
will be specified or selected by the Company or any one
acting on its behalf and no goods or materials
which, after
their specification or selection by or on behalf of the Company
but before being incorporated into the developments of the
Townships, become generally known to be deleterious or
otherwise not in accordance with good engineering practice,
will be incorporated into the development of the Townships;
and
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7.5.6 it will obtain all necessary approvals from an appropriate
GOKGovernmental Instrumentality with regard to the
Technical Requirements for the Townships.
7.6 Execution of Documentation. GOK and the Company shall
execute such agreements, Certificates, instruments and other
documentation in order to give effect to the purposes of this
Article 7.”
(emphasis supplied)
44. Article 3 deals with the obligations of the State for
implementation of the Project referred to in the FWA. Much emphasis
has been placed on Article 3.2.3, which postulates that the State will
not restrict the use of the land in any way and the Project Proponents
shall have full freedom and discretion to industrially and commercially
develop and use the land. Article 3 reads thus: -
“ARTICLE 3. OBLIGATIONS OF GOK
GOK covenants, agrees and undertakes that it shall perform, and
shall cause its Governmental Instrumentalities to perform, each
of the following obligations:
3.1. Approvals.
3.1.1 GOK shall use its best efforts to grant, and cause its
Governmental  Instrumentalities,  GOI  and GOI governmental
Instrumentalities to grant, all Approvals required in connection
with the Infrastructure Corridor Project, including all Approvals
listed on Schedule 2.
3.1.2 GOK shall use its best efforts to dispose of, resist and
resolve any obstacles or impediments created or placed by any
Person to thwart or challenge any part of the Infrastructure
Corridor
Project.
3.2 Land
3.2.1 GOK shall use its best efforts to, and cause its
Governmental Instrumentalities to, promulgate, facilitate, initiate,
advocate and/or amend to the full extent possible under the Laws
of India any and all enactments, acts and legislation necessary
or desirable to enable GOK or any GOK Governmental
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Instrumentality to obtain, procure and/or transfer the Land to the
Company for the purposes set forth in this Agreement.
3.2.2. GOK shall authorise and take whatever other action that
may be necessary for the use of any part of the Land and/or
any other tract of land reasonably requested by the Company
as a waste dump/disposal site for the waste generated by any
of the Components of the Infrastructure Corridor Project during
construction and development of the Infrastructure Corridor
Project, all in accordance with applicable law.
3.2.3 GOK covenants that it will not restrict the use of the
Land in any way and that the Company shall have full
freedom and discretion to industrially and commercially
develop and use the Land, as generally contemplated by
this Agreement except that GOK shall zone and rezone,
and shall cause to be zoned and rezoned, all Land in a
manner consistent with its intended use in the
Infrastructure Corridor Project as contemplated by this
Agreement or as reasonably requested by the Company,
all in accordance with applicable law.
3.2.4 GOK covenants that upon transfer of the Land as
contemplated hereby, the Company will have good, valid, clear
and marketable title to the Land and all buildings, structures and
other improvements thereon, free of any Encumbrances, GOK
will indemnify and hold harmless and the Company and its
Affiliates and their respective directors, managers, officers,
employees and agents from any and all expenses,
loses or claims
relating to the use or ownership of such Land by the Company
or any project Company in the manner contemplated herein.
3.2.5 Company shall request and GOK shall use its best efforts
to cause GOK Instrumentalities to, remove in the most expeditious
manner possible any person that trespasses or encroaches on any
part of the Land or any right of the Company hereunder and shall
take all other action reasonably requested by the Company to
permit the Company to fully enjoy its rights thereon or thereto
and to develop the Land in the manner contemplated in this
Agreement.
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3.2.6 GOK covenants that it shall provide all assistance
reasonably requested by the Company with respect to clearance
and preparation of the Land for development in the manner
contemplated herein.
.....”
(emphasis supplied)
Considering 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 Expressway.
45. The next question is: whether the stipulations and
specifications in the FWA regarding the scope of work and the
application of both parties stood modified or altered due to
supplementary agreements dated 6.10.1999 and 31.3.2000? Even 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
Agreement, which reads thus: -
“1.1.3 Stage 1 of the Infrastructure Corridor shall mean
(a) Toll road (Section -A)
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(b) Acquisition of the land and such rights, title and interests
therein as may be necessary for the above-mentioned
roads and development and sale of land.
(c) Basic development and sale of land, including that at ten
(10) interchanges and Township-1"
We 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 Corridor”. Indeed, 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 FWA.
46. The thrust of the argument of the Project Proponents is that
housing is a permitted usage, in
terms of the ODP/Master Plan. For,
the area for which the proposal for group housing scheme had been
submitted is within yellow zone/residential zone. The question is: whether
the Project Proponents can rely solely on ODP/Master Plan, notified
by the Planning Authority in exercise of statutory function as a Planning
Authority (for the entire area including the Project area)? The 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
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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 PTR.
48. Much emphasis was placed on the order dated 3.11.2009
passed by this Court in Contempt Petition (C) No. 144/2006 and
connected contempt petitions in Civil Appeal Nos. 3492- 3494/2005 and
connected appeals to contend that the Planning Authority and the State
were obliged to allow the Project Proponents to complete the Project
and also permit them to use the land allotted to them, as per the
alignment specified in the ODP/Master Plan dated
12.2.2004. The said
order dated 3.11.2009 reads thus:-
“We have heard the learned counsel for the parties on the
Contempt Application.
After hearing the learned counsel for the parties and after going
through the materials on record and the application for Contempt,
we are of the view that pending final disposal of the Contempt
proceeding, the following order may be passed: -
By a final Judgment, this Court directed the State/respondents
to implement the Bangalore-Mysore 1 Infrastructure Corridor
Project. Unfortunately, the said project has not yet been
implemented by the State/respondents. On 4th of February, 2009,
when this Contempt proceeding was taken up for hearing by this
Court, Mr. G. E. Vahanvati, learned Solicitor General of India (as
he then was) appearing for the State, stated before the Court
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that the State Government has decided to implement the
Judgment of the High Court of Karnataka, as upheld by this Court,
and needs time for implementation of the decision. Unfortunately,
in spite of such submission made by the learned Solicitor General
of India (as he then was), we are informed that the project has
not yet been implemented. While some argument was advanced
by the learned counsel for the parties and the Advocate General
of the State, who is present today in Court, who submitted before
us that the State has already taken all steps to implement the
project and in fact, some lands have already been allotted to the
applicants. Since the learned Advocate General of the State
submitted that all possible steps have been taken to implement
the project and to act in compliance with the Judgment of this
Court, we direct that the 2 State Government shall constitute a
Committee to be headed by the Chief Minister of Karnataka for
the purpose of implementation of the project in question, which
will submit a report by 22nd of November, 2009 as to allotment
and possession of lands for completion of the project and
such steps can be taken within the time that may be
mentioned in the report and the project shall be allowed
to be completed as per the alignment specified in the
Outline Development Plan dated 12th of February, 2004
issued by the Bangalore Mysore Infrastructure Corridor
Area Planning Authority as per the Town and Country
Planning Act.
Let this
matter be placed for further orders on 26th of November,
2009 at 3.30 PM.”
(emphasis supplied)
Indisputably, these contempt petitions were in reference to the
order passed by this Court on 20.4.2006 in Civil Appeal Nos. 3492-3494/
2005 and connected appeals. Those appeals were against the decision
of the High Court, which had considered two questions posed before
it, as noted in paragraph 21 of the reported judgment in All India
Manufacturers Organisation (supra). The same reads thus: -
“21. The High Court in the impugned judgment (vide para 18)
raised the following two questions for consideration in the three
writ petitions:
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“(1) Whether the FWA entered into between the Government
of Karnataka and Nandi was a result of any fraud or
misrepresentation as alleged by J.C. Madhuswamy and
others and the State Government?
(2) Whether any excess land than what is required for the
Project had been acquired by the State Government and
whether it is open to it to raise such a plea?””
The High Court allowed the writ petitions and directed the State
and all its instrumentalities, including the KIADB to execute the Project
as conceived originally and to implement the FWA in its letter and spirit.
That direction was the subject matter of assail by the State on the
ground that the direction amounted to mandamus to specifically perform
the FWA, which is extremely complex contract. At the same time, the
State had contended that the Project was vitiated by fraud,
misrepresentation and mala fide. However, the latter plea was given
up before this Court as noted in paragraph 24 of the reported judgment.
49. 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 appeals.
50. 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),
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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 7.1. For that reason, the
Planning Authority had informed the Managing Director, NECE vide
letter dated 28.5.2012 to obtain NOC from the concerned authorities.
The same reads thus: -
“BANGALORE 
MYSORE 
INFRASTRUCTURE
CORRIDOR LOCAL AREA PLANNING AUTHORITY
OFFICE OF THE DIECTOR FOR TOWN PLANNING, P.B.
NO.5257 M.S. BUILDING, GATE NO.4,
DR. B.R. AMBEDKAR VEEDHI, BANGALORE 560001
No. BMICAPA/339/ProaPraPa/541/2011-12  Dated: 28.05.2012
The Managing Director
M/s Nandi Economic Corridor Enterprises Limited
Midford House. Midford Garden,
M.G. Road, Bangalore-540001.
Sir,
Sub: Regarding approval for construction of Group housing in the
land measuring 53 acres 05 guntas in Sy. No.17 Part, 18, 19, 20/
1, 20/3, 20/4, 21/1 part, 21/2A1 part, 21/2A2 Part, 21/2B part,
21/2C Part, 21/2D part and 21/2E Part of Kommaghatta Village,
Kengeri Hobli, Bangalore South Taluk.
Ref.: Your request
date: NECE/05/170 dated 05.05.2012 with
reference to the above subject, on verification of the proposal
submitted in the letter at reference above, the following defects
are noticed.
1. Submit Survey sketch Prepared by the taluk Surveyor
and certified by the Tahsildar showing the proposed land,
existing road connection, adjacent survey numbers,
Karab land.
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v.
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2. Submit No Objection Certificate from the Project
Co-Ordinal or – BMICP, KIADB (BMICP), P.W.D.
with regard to Provision for this proposal as per the
FWA’ entered into between Government and NICEL.
3. Submit No Objection Certificate from KSPCB, BWSSB,
Environment Pollution Department and BESCOM
relating to the proposed lands.
4. Submit Detailed Project Report relating to the proposed
lands.
5. Submit No objection Certificates from Fire Department,
Airport Department and BSNL relating to the proposed
lands.
6. Submit on affidavit stating therein that no disputes or
cases relating to the proposed lands are pending in the
courts.
The above documents have to be submitted within 7 days of
receipt of the above letter, failing which your representation will
be rejected and will be kept in abeyance.
Yours faithfully,
Sd/-
Additional Director for Town
And Country Planning and
Member Secretary BMICAPA
Bangalore.”
In response to the above noted communication, the NECE vide
letter dated 6.6.2012, wrote to the Member Secretary of the Planning
Authority. The said letter reads thus: -
“NANDI ECONOMIC CORRIDOR ENTERPRISES
LIMITED
Registered Office: 1, Midford House, Midford Garden, Off.
M.G. Road, Bangalore – 560001, INDIA
Telephone: (80) 2555 9819, 2559 5252 Fax: (80) 2555 9998
    Email : nandi@nicelimited.com
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Ref: NECE/06/211
Dated: June 6, 2012
Without Prejudice
The Member Secretary,
Bangalore Mysore Infrastructure
Corridor Area Fanning Authority,
Office of the Director of Town and Country Planning,
P.B. No. 5257, Gate No.4, M.S. Building,
Dr. B.R. Ambedkar Veedhi,
Bangalore-560 001
Sir,
Sub: Approval for Group Housing Scheme in 42-08G in Sy. Nos.
17(P), 18, 19, 20/1, 20/3, 21/1(P), 21/2A1(P), 21/2A2(P), 21/
2B(P), 21/2C(P), 21/2D(P) and 21/2E(P) of Kommaghatta
Village, Kengeri Hobli, Bangalore South Taluk.
Ref.: 1) Your Letter No. BMICAPA/339/Pra.Pra/1541/2011-12
dt. 28th May 2012
2) Our Letter No. NECE/05/170, dated 5th May 2012.
With reference to your above letter, we furnish the following
clarifications/documents to the queries raised by you therein:
1. We are submitting an original survey sketch prepared by the
Taluk Surveyor and duly attested an authenticated by the
Tahsildar, Bangalore South Taluk. The survey sketch clearly
shows the existing bridge, road, kharab land and the relevant
survey numbers surrounds, the land for which your approval is
now sought.
2. Your second query requesting us to provide “No Objection
Certificate” from the Authorities referred above would be once
against breach of terms of understanding of the Framework
Agreement since it can be clearly seen from the sale deeds
executed by the KIADB transferring title of the above survey
numbers, photocopy of which have already been submitted to you,
we are, the absolute owners of the
land in question without any
restrictions/limitations on the use of the land. This is in conformity
with the FWA where under the State Government has agreed
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that it will not restrict use of land in any manner and we shall be
fully entitled at our discretion to industrial and commercially
develop the land. We reproduce below for you ready reference
clauses 3.2.3 and 3.8.3 of the FWA which read as follows:
3.2.3 GOK, covenants that will not restrict the use of the Land
in any way and that the Company shall have full freedom and
discretion to industrially and commercially develop and use the
land as generally contemplated by this Agreement except that
GOK shall come and rezone, and shall cause to be zoned and
rezoned, all Land in a manner consistent with its intended use
in the Infrastructure Corridor Project as contemplated by this
Agreement or as reasonably requested by the Company, all
in accordance with applicable law.
3.8.3 GOK understands that each of the components of the
Infrastructure Corridor Project is an integral part of the
Industrial and commercial development of the Infrastructure
Corridor ma manner designed and calculated to maximize the
full industrial and commercial growth, potential and quality of
life in such corridor. Accordingly, GOK shall use its best
efforts to cause land of appropriate width from the outer
boundaries of the entry and exist points (rampways
interchanges) of the Toll Road the outer boundaries of each
of the Townships, each as identified by the Company, not to
be rezoned for use other than for farming (such area being
called herein the
“Greenbelt”). The appropriate width referred
to in the immediately preceding sentence shall be determined
by the appropriate Local Planning Authority. In the event an
area to be included in the Greenbelt is on the date hereof
already developed, GOK shall not be required to rezone such
land for the Greenbelt, GOK acknowledges and agrees that
the Greenbelt will protect and buffer the Toll Road and the
Townships from unfettered and uncontrolled development
which would cause irreparable harm to the Toll Road and the
Townships and undermine the goals and purposes of the
infrastructure Corridor Project contemplated hereby and that
in the event of breach of this Paragraph 3.8.3 no adequate
namely, would exist and damages would be difficult to measure
and accordingly, the Company shall be entitled to Injunctive
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relief for specific performance pending resolution of any
Dispute involving the provisions of this Paragraph 3.8.3. In
the event any Person attempts to use the land designated for
the Greenbelt for purposes other than farming, the Company
may in its sole discretion take any and all steps it deems
necessary or required, including the initiation of legal action
against such Person, to step or prevent such unauthorized use.
GOK shall support to the full extent possible under applicable
law such efforts of the Company to stop and prevent such
unauthorized use. However, violation of the Greenbelt by third
parties shall not constitute a GOK Event of Default.
As you are aware, FWA has been upheld by the Hon’ble High
Court of Karnataka in its judgments dated 21.09.1998 and
03.05.2005 and the Hon’ble Supreme Court in its judgment dated
20.04.2006 has affirmed the judgment dated 03.05.2005 passed
by the Hon’ble High Court of Karnataka.
The legal position emerging from the reading of FWA and the
rulings of the Hon’ble High Court of Karnataka and the Hon’ble
Supreme Court of India clearly shows that our Company has
absolute and full power and authority to develop the land,
commercially and industrially, subject, however, to the ODP and
the zoning regulations. As such, the question of obtaining No
Objection Certificate (NOC) or any other form of consent from
the State Government would not arise.
3. The NOC’s obtained from BSNL, Airport and BWSSB
and the
acknowledgments for having applied to KSPCB,
BESCOM and Fire Force and enclosed herewith.
4. The NOC’s from KSPCB, BESCOM and Fire Force
will be submitted immediately after their receipt.
5. The detailed Project Report is enclosed.
6. You have requested to submit an Affidavit Stating that
“no law suits” are pending in any of the courts with
regard to the subject lands. We would like to state that
we have already submitted the original copy of the
Affidavit along with the letter cited at reference (ii) copy
of which is enclosed.
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In addition to this, a true copy of the learned Advocate General’s
opinion dated 24.12.2011 furnished by in to the Planning Authority
in response to the reference in this behalf obtained by us under
the provisions of the Right to Information Act is enclosed for your
ready reference.
This is for your kind information and further needful action in
the matter.
Thanking you
Your faithfully,
For Nandi Economic Corridor Enterprises Limited,
Sd/-
Authorised Signatory”
51. 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 obtained. The said
communication reads thus: -
“LoE 114 CRM 2013
Secretariat, Government of Karnataka
Vikasa Soudha
Bangalore, Dated 19th December, 2013
From
Principal Secretary Government of Karnataka
Public Works, Ports and Inland Water Transport Department
Bangalore.
To
Member Secretary
Bangalore-Mysore Infrastructure Corridor Area Planning
Authority, Multi-storeyed Building,
Bangalore-1
Sir,
Sub: Re: Furnishing of documents and opinion as sought for by
the authority with respect to the BMICP project.
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Ref:
1.
Your
letter
No.
BMICAPA: 
339:PraPra
P:1541:2011-12 dated 17.07.2012
2.
Your letter No.BMICAPA:145:Bhu.U.B:519:2011-12
dated 18.08.2011 and 12.04.2012
3.
Your letter No.BMICAPA:371:Design:1629:2010-11
dated 12.08.2011 and 12.04.2012
4.
Your letter No.BMICAPA:81:Bhu.U.B:422:2011-12
dated 12.08.2011, 07.09.2011 and 09.04.2012
5.
Your
letter
No.BMICAPA:80:Resid ential
Plan:421:2011-12  dated  12.08.2011,  04.11.2011 and
14.12.2011
6.
Your
letter
No.BMICAPA:79:Resid ential
Design:420:2011-12 dated 12.08.2011
7.
Letter No.BMICAPA:Yo Sa:29:Information:2013-14
dated 23.09.2013 of Shri B. Mahendra, Member
Secretary, BMICAPA, Bangalore.
The Cabinet in its meeting on 30.08.2007 with respect to the
subject matter as mentioned above while referring to Article 1.1.3
of the Tripartite Agreement entered into between M/s. NICE,
M/s. NECEL and the Government of Karnataka on 09.08.2002
while referring to clauses in the said agreement namely (c) basic
development and sale of land including that at ten (10)
interchanges and Township 1 as follows-
(iii) NICEL or anyone who is implementing the BMICP shall not
be entitled to sell/alienate any portion of the land in the
interchanges/road portion of the BMICP. Necessary steps be
taken by the concerned department to cancel the agreement
dated 09.08.2002 between NICE and the Government of
Karnataka insofar as it introduces clause for sale of land in Para
1.1.3 or elsewhere in the agreement.
Apart from that, the judgments
rendered in the context of
implementation of the project by the High Court of Karnataka
and Supreme Court mandate execute the project as conceived
originally and upheld in Somashekar Reddy’s case and to
implement the FWA in letter and spirit. The clauses in the
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Tripartite Agreement dated 09.08.2002 which are in contradiction
with the FWA are to be ignored. Further, the agreement dated
09.08.2002 is to be limited to assignment only.
The PTR submitted by M/s NICE is a prominent part of the
FWA and the project will have to be implemented in accordance
with the Technical Report. As per the definition of Toll Road and
Township in the FWA which is reproduced below, the Toll Road
is to be specifically restricted to Toll Road as defined. Further,
for the residential and commercial development, Township has
been separately provided for and in such Township, different
commercial and residential plans being provided, the same are
to be implemented in accordance with the rules.
“Toll Road” means the portion of the infrastructure corridor
project consisting of Phase I Road, Phase II Road, Phase III
Road, Phase IV Road, Phase V Road, Phase VI Road, the
Bangalore Feeder, the Mysore Feeder, Link Road and the Outer
Peripheral Road collectively;
“Townships” means the townships described as Township 1, 2,
4, 5 and 7 in the Infrastructure Corridor Project Technical Report
which will be developed by the company and/or project companies
for the industrial and commercial growth and other development
of the infrastructure corridor and the provision of roads, supply
of water, and electricity, street lighting, sewage, conservancy, and
such other conveniences and socio- economic infrastructure, inter
alia, comprising of housing, schools, hospitals, shopping complexes,
parks and open spaces as set forth in Schedule 4 attached hereto.
M/s. NICE has completed the Peripheral Road and Link Road.
However, with respect to the facilities that are necessary for
drivers of vehicles being plied on such road, such as petrol bunks,
service stations, and truck terminals, it is noticed that till date
none of these facilities have been provided for.
In the light of the above points, before any decision is
taken with respect to change in land use and approval of
residential developments, the pros and cons will have to
be placed before the Empowered Committee constituted
under the FWA and decision be obtained from it. I have
been directed to inform you accordingly.
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Approved by the Principal Secretary PWD
Yours sincerely,
Sd/-
N. Mahalakshamma
Project Coordinator (BMICP), Public Works,
Ports and Inland Water Transport Department”
(emphasis supplied)
52. 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 FWA. Article 4 reads thus: -
“ARTICLE 4 EMPOWERED COMMITTEE
4.1 Empowered Committee.
4.1.1 Composition and Actions of Empowered Committee
GOK represents and warrants that it has established a
committee (the “Empowered Committee”) which consists of
Chief Secretary and other members whose postings and titles
are as set forth in Schedule 6 attached hereto. In the event
of a vacancy on the Empowered Committee, GOK shall fill
such vacancy with a similarly titled person from the same
GOK governmental Instrumentality. The Empowered
Committee shall
meet only after convening a duly called
meeting and providing seven (7) Days prior written notice to
the Company so that the Company may make available to such
Committee a Company representative to answer any questions
that the Empowered Committee may have and to update the
Company on actions taken by such Committee.
4.1.2 Committee Determinations Do Not Modify Rights or
Obligations. The Parties acknowledge and agree that the
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rights and obligations of the Parties to this Agreement and the
parties to any Project Contract shall be as set forth in this
Agreement and such Project Contract and the Empowered
Committee shall not have the authority to modify or alter such
rights and obligations other than through a written agreement
between the Parties hereto or the parties thereto. Subject to
the foregoing, the Empowered Committee shall be the
mechanism by which GOK will coordinate (with any
necessary assistance from the Company) performance of its
obligations under this Agreement, including to:
4.1.2.1 facilitate and expedite all Approvals required
in connection with the Infrastructure Corridor
Project at the state and local level; specifically, as the
Empowered Committee consists of high level members
from each of the affected ministries of GOK, it will act
as the “single window co-ordination centre” with
respect to the required clearance and permits; such
committee shall also assist the Company in all means
possible with regard to obtaining any and all Approvals
required from GOK or any GOI Governmental
Instrumentality;
4.1.2.2 oversee GOK Governmental Instrumentalities
compliance with the provisions of this Agreement.
4.1.2.3 serve as the information centre and clearinghouse
for assembling and disseminating information with respect
to the Infrastructure Corridor Project to GOK and the
GOK Governmental Instrumentalities and the public at
large; and 4.1.2.4 serve as the primary intermediary on
behalf of GOK and GOI and any Governmental
Instrumentality thereof in connection with dealings between
GOK and the Company.
4.1.3 Committee Pronouncements and Decisions. GOK, on behalf
of itself and the GOK Governmental Instrumentalities, covenants
that the Company may rely on the pronouncements and decisions
of the Empowered Committee as pronouncements and decisions
of GOK or the relevant GOK Governmental Instrumentality in
connection with the Infrastructure Corridor Project and that such
pronouncements and decisions shall be made by GOK or such
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GOK Governmental Instrumentalities in an expeditions and timely
manner. GOK understands and agrees that this is one of the
primary purposes of setting up such Empowered Committee and
that it will facilitate and expedite the realisation of the goals of
the Infrastructure Corridor Project.
4.1.4 Committee Rights of Observation. GOK shall have the
right, upon reasonable prior notice to the Company, through the
Empowered Committee, to observe the progress of Infrastructure
Corridor Project. The company shall assist GOK in arranging
such visits. All persons visiting the Infrastructure Corridor Project
site on behalf of GOK shall comply with all reasonable
instructions, directions and safety requirements as prescribed by
the Company or its contractors from time to time. GOK shall
cause all such persons to comply with the Company Rules and
Regulations regarding site safety and access, and in the event
any such GOK employee or representative fails to comply with
any reasonable requirements of the Company, GOK shall be
exclusively liable for and shall indemnify, defend and hold
harmless the Company against any and all damages, costs, claims,
expenses and consequences arising out of such failure. Unless
otherwise provided herein, such rights of GOK to visit the
Infrastructure Corridor Project shall not be construed directly or
indirectly as a contractual right of GOK to review, advise,
recommend, approve or require changes.”
(emphasis supplied)
Indeed, 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, which reads thus: -
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“ARTICLE 18. RESOLUTION OF DISPUTES
18.1 Mutual Discussions. In the event of a Dispute, the Parties
shall endeavour to resolve such Dispute by discussion in good
faith in the first instance within thirty (30) days of Notice of such
Dispute.
18.2 Referral to the Expert. If any Dispute cannot be settled within
such thirty (30) Day period and the Parties mutually agree in
writing, such Dispute shall be referred to the Expert. If the Expert
does not arrive at a decision within sixty (60) days or if either
Party does not accept the decision of the Expert, then either
Party may, upon giving Notice to the other Party, refer the
Dispute immediately for arbitration in accordance with Paragraph
18.3.
…..”
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 Authority.
54. Much emphasis was placed on the fact that the appellants
had permitted the Project Proponents to construct housing complex at
a location outside the demarcated area for the five Townships referred
to in the FWA. Similarly, as the stated location was falling in yellow
zone being residential, the other neighbouring private land owners were
permitted to develop their property for housing complex. This argument
does not take the matter any further for the Project Proponents,
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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 FWA.
55. 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 Proponents.
56. 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
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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 countenanced.
57. It is urged that this Court had held that it would be open to
the Project Proponents to carry on construction work of housing on
lands which are not falling within the Townships area, if the same were
otherwise permissible under the ODP/Master Plan and the town
planning regulations. This 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
case.
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59. 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.22, 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.23, 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 appeals.
60. 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
situation.
61. 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  question. The issue is: whether it is open to the Project
Proponents to deviate from the stipulations and specifications of the
FWA, in particular, in respect of Townships without prior approval of
22 Decided by the High Court on 28.2.2005 in Writ Appeal No. 72/2004 and connected
writ appeals
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the State? The 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 PTR.
62. 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 etc.
63. 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 law.
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64. The next question is: whether the findings recorded by the
High Court for setting aside the reasons given by the Planning Authority
in the impugned communication dated 7.2.2015, can be said to be the
just approach of the High Court? In view of the conclusion reached by
us hitherto, it is not necessary for us to dilate on the correctness of the
view taken by the High Court in that regard.
65. 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 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.24, 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: -
24 (2000) 8 SCC 395
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“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