BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY & ANR. v. NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED & ORS.
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Headnote — Supreme Court Reports (editorial summary, not part of the judgment)
Catchwords
A B (Civil Appeal Nos. 2116-2128/2020) Karnataka Town and Country Planning Act, 1961 – C 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 D 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, H FWA – No proposal for the same was submitted to the State by the 782
Catchwords
Project Proponents – Further, Project Proponents could not have A 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 B 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 D 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 F 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
Reporter's headnote (continued) and case details
782 [2020] SUPREME COURT 8 S.C.R. 782 REPORTS [2020] 8 S.C.R.
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 783 NANDI INFRA CORRIDOR ENTERPRISE LTD.
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A 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 B 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 C 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 D 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 E 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 F 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 G 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, H
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Cost Estimate, Privatisation of Highway Projects, Appendix-I and A 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, E 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 F 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 G 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 H
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A 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 B 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 C 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 G 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 H
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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 - E 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 F 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 G 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 H
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A 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 B 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 C 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/ F 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 G 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 H
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 789 NANDI INFRA CORRIDOR ENTERPRISE LTD.
enables the Project Proponents to set up Townships at A 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) B 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 C 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 D 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 E 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 F 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 G 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 H
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A 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 B 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] F 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 G 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
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 791 NANDI INFRA CORRIDOR ENTERPRISE LTD.
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 H
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A 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 B 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, F 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 G 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 H
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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, C 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 H
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A 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] B 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 C 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. D 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 G 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 H
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from the stipulations and specifications in the FWA and the PTR. A 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 B 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 C 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. D
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 E & 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 F [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 G (2010) 1 SCC 64 held inapplicable Para 59 [2000] 3 Suppl. SCR 573 referred to Para 65
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A 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). B 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. C 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.
Judgment
D The Judgment of the Court was delivered by A. M. KHANWILKAR, J.
11. These appeals filed by Bangalore Mysore Infrastructure Corridor Area Planning Authority1 and the State of Karnataka2 directed E 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 – F 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 G 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 H 7 For short, “the FWA”
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 797 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
additionally directed the Planning Authority to issue Commencement A 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.
22. This is the fifth round of litigation pertaining to the Integrated Infrastructure Corridor and Finance Project 8 situated between B 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. C
33. 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 D 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. 29221/1997 11 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. E
44. 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 F 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 G
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 H
p. 798
A 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.
55. The third round of litigation was at the instance of one B 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. C
66. 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 D SLP vide order dated 11.12.2018 by this Court.
77. 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 E 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
F (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 G to issue commencement certificate as sought for by the petitioner in its application bearing No. NECE//05/170
12 (2006) 4 SCC 683 13 H (2011) 3 SCC 408
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 799 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
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.”
88. 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.
99. 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, D NICE and NECE on 9.8.2002.
1010. 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 E PTR in respect of certain matters.
1111. 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.
1212. 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.
1313. 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” H
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A 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.
1414. 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 C 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.
1515. 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.
1616. The Planning Authority in its 34th General Meeting convened on 12.9.2012 resolved that the application of the Project Proponents F 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 G Authority had thus kept the modified development plan submitted by the Project Proponents in abeyance till the decision of the High-Level/ Empowered Committee.
H 16 For short, “the KIADA Act”
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 801 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
1717. Once again, the Planning Authority vide letter dated 15.1.2013 A 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 B 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. C
1818. 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. D 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. E
1919. 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 F 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. G
2020. 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 H
p. 802
A 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.
2121. Before the decision was taken by the Planning Authority, the Project Proponents submitted their response to the notice dated B 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: - C “BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY SECOND FLOOR, GATE NO.4, M.S. BUILDING, DR. B.R. AMBEDKAR VEEDHI, D BANGALORE-560001 TEL:080-22353976 FAX: 080- 22389519 No BMICAPA/339/CC/1541/201 1-12 Date: 07.02.2015 To, Managing Director E 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 F 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 G (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;
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 803 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
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. B 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 C 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.” G 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 H
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A disposed of by the Division Bench of the High Court vide impugned judgment.
2222. 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: - B “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? C 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? D (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? E (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, F 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 G (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 H (2012) 8 SCC 216
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 805 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
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, H
p. 806
A 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. D 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 E 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: F “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: G “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”.
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 807 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
3. Accordingly, making the above statement, the order of the A 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.” B (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, F 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, G 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 H
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A 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 B 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. C 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) F 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. G 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: -
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 809 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
“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 C 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 D 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 E 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 H
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A 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 B 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) C 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)
2323. 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. F
2424. 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 G 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 H
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 811 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
construction of road as indicated in the impugned communication. It A 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 B 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 C 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” D 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: E
“SCHEDULE 5 Transferred Township Assets
1. Right of way relating to the public roads in the Townships other than the Toll Road F
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 G with the civil operation of the Township as mutually agreed
6. Such other assets as may be mutually agreed between GOK and the Company” H
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A 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 B 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. C 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
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 813 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
also impressed by the argument of the Project Proponents that the A 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 B 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 C Planning Authority was adopting policy of pick and choose for grant of approval or sanction.
2525. 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 D plan submitted by the Project Proponents did not violate any condition.
2626. 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 E 5.5.2012 and issued a direction to the Planning Authority to grant Commencement Certificate as sought by the Project Proponents.
2727. 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 F 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 G 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. H
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A 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.
2828. 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 G 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
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 815 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
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. C 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 D authority.
2929. 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 E 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 F 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 G 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 H
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A 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 B 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.
3030. It is further urged that the logic invoked by the High Court C 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 D 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 E 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 F 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.
3131. The appellants urge that the fact that permissions were granted G 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 H For short, “the KIADB”
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 817 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
must be in the designated areas/location(s) specified as “Townships” A 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. B
3232. 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.
3333. 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 H
p. 818
A 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 B 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 C 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. D
3434. 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 E 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 F 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 G 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 H
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 819 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
Proponents that it is clear from perusal of the ODP/Master Plan that A 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. B 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 C 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, D 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 E 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. F
3535. 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.
3636. Considering the rival submissions, we are inclined to accept G 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 H
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A 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? B 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 C 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.
3737. For answering the matters in issue in proper perspective, it would be essential to first understand the purpose of the Integrated D 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 E 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 F 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, G 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
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 821 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
constructed along the length of the expressway. Location(s) of the A 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 B
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 C Center (Township Site #5), Ramanagaram and Channapatna
5. Maddur
6. Mandya D
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 E 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 F 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, G 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. H
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A 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 D reads thus: - “TOWNSHIP DEVELOPMENT SUMMARY The Consortium proposes to design, acquire land for, and construct seven new townships as part of the Bangalore- Mysore E 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. H
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 823 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
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) H
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A 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 B 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. C 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: D 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 E 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. F 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 G 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 H Road would open for traffic operations at the end of year three.
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 825 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]
Upon completion of each subsequent expressway section, it would A also be opened for traffic operation.” (emphasis supplied)
3838. 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 B 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 C Access etc. have been duly elaborated including their exact location and other essential specifications.
3939. The topic “Townships Along the Corridor” has been separately detailed in Section-II. The relevant portion of the PTR dealing with “Townships” reads thus: - D “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. E 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 F 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. G 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. H
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