# BANGALORE MYSORE INFRASTRUCTURE CORRIDOR AREA PLANNING AUTHORITY & ANR v. NANDI INFRASTRUCTURE CORRIDOR ENTERPRISE LIMITED & ORS

- **Citation:** [2020] 8 S.C.R. 782
- **Court:** Supreme Court of India
- **Decided:** 2020-05-19
- **Case number:** CIVIL APPEAL NO. 2116-2128 OF 2020
- **Bench:** A.M. Khanwilkar, Dinesh Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bangalore-mysore-infrastructure-corridor-area-planning-authority-anr-v-nandi-34856
- **Pages:** 93

## Headnote

Karnataka Town and Country Planning Act, 1961 -
Development of Integrated Infrastructure Corridor and Finance
Project (IICFP) between Bangalore and Mysore, Karnataka,
consisting of residential, industrial and commercial facilities -
Framework Agreement (FWA) executed between State and
respondent no.1, followed by Supplementary agreements and a
Tripartite agreement between the State, respondent nos.1 & 2 (both
jointly called Project Proponents) - Modified development plan
submitted by Project Proponents for permission to set up group
housing scheme at location other than those demarcated for
Townships in the FWA and Infrastructure Corridor Project
Technical Report (PTR) - Eventually, the Planning Authority
rejected the modified plan - High Court quashed the said
communication; directed the Planning Authority to issue
Commencement Certificate to the Project Proponents - Held: PTR
suggested creation of seven Townships but, in the final FWA, only
five Townships were approved - Project Proponents are obliged
to construct the five Townships at the demarcated location(s) only
and to the extent of land specified therefor in the PTR, which
applies proprio vigore to the expression "Townships" in the FWA
- Modified proposal submitted by the Project Proponents for
developing 42 acres 30 guntas of land as group housing scheme
was not for setting up of Township as such - Neither the PTR nor
the FWA envisaged construction of standalone group housing
scheme, that too at a location other than demarcated location(s)
for five Townships - Thus, it was a clear case of deviation from
the stipulations contained therein - To relax or modify the same,
prior permission of the State was mandatory in terms of Article 7.1,
FWA - No proposal for the same was submitted to the State by the
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Project Proponents - Further, Project Proponents could not have
directly approached the Planning Authority for approval of
modified proposal replete with deviations - Judgment of High Court
set aside - Project Proponents at liberty to approach the State for
prior permission allowing them to deviate from the stipulations/
specifications in the FWA and the PTR - Karnataka Industrial
Areas Development Act, 1966 - Acquiescence/Waiver.
Allowing the appeals, the Court
HELD: 1.1 The Outline Development Plan (ODP)/Master
Plan was prepared by the Planning Authority for the new planning
area and had received approval of the State. In the backdrop of
the stated agreements, ODP/Master Plan and the amendment
to Zonal Regulations of ODP/Master Plan, the Project
Proponents submitted an application to the Planning Authority
for sanction of group housing scheme in 53 acres 5 guntas of
land, which included lands transferred to the Project Proponents
under sale deeds and notified under Section 28(4) of the
Karnataka Industrial Areas Development Act, 1966. Later on,
the Project Proponents submitted modified development plan for
permission to set up group housing scheme in 42 acres 30
guntas of land by excluding the lands in respect of which no sale
deed was executed in their favour. The present (fifth) round of
litigation is by the Project Proponents themselves, who had
applied to the Planning Authority for grant of permission for
construction of group housing scheme at the stated location(s).
That permission having been rejected, subject writ petitions
were filed before the High Court, which have been disposed of
by the common judgment and order of the Division Bench. The
High Court posed wrong questions to itself and that led to the
erroneous and untenable conclusion deduced by it. The
fundamental issue is: whether the subject modified plan
submitted by the Project Proponents directly to the Planning
Authority for approval is replete with deviations and/or violation
of the stipulations and specifications in the FWA? In that, the
FWA had circumscribed the user of the land in terms of the
location(s), as well as, the area thereof for implementat

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BANGALORE MYSORE INFRASTRUCTURE
CORRIDOR AREA PLANNING AUTHORITY & ANR.
v.
NANDI INFRASTRUCTURE CORRIDOR
ENTERPRISE LIMITED & ORS.
(Civil Appeal Nos. 2116-2128/2020)
MAY 19, 2020
[A.M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Karnataka Town and Country Planning Act, 1961 -
Development of Integrated Infrastructure Corridor and Finance
Project (IICFP) between Bangalore and Mysore, Karnataka,
consisting of residential, industrial and commercial facilities -
Framework Agreement (FWA) executed between State and
respondent no.1, followed by Supplementary agreements and a
Tripartite agreement between the State, respondent nos.1 & 2 (both
jointly called Project Proponents) - Modified development plan
submitted by Project Proponents for permission to set up group
housing scheme at location other than those demarcated for
Townships in the FWA and Infrastructure Corridor Project
Technical Report (PTR) - Eventually, the Planning Authority
rejected the modified plan - High Court quashed the said
communication; directed the Planning Authority to issue
Commencement Certificate to the Project Proponents - Held: PTR
suggested creation of seven Townships but, in the final FWA, only
five Townships were approved - Project Proponents are obliged
to construct the five Townships at the demarcated location(s) only
and to the extent of land specified therefor in the PTR, which
applies proprio vigore to the expression "Townships" in the FWA
- Modified proposal submitted by the Project Proponents for
developing 42 acres 30 guntas of land as group housing scheme
was not for setting up of Township as such - Neither the PTR nor
the FWA envisaged construction of standalone group housing
scheme, that too at a location other than demarcated location(s)
for five Townships - Thus, it was a clear case of deviation from
the stipulations contained therein - To relax or modify the same,
prior permission of the State was mandatory in terms of Article 7.1,
FWA - No proposal for the same was submitted to the State by the
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Project Proponents - Further, Project Proponents could not have
directly approached the Planning Authority for approval of
modified proposal replete with deviations - Judgment of High Court
set aside - Project Proponents at liberty to approach the State for
prior permission allowing them to deviate from the stipulations/
specifications in the FWA and the PTR - Karnataka Industrial
Areas Development Act, 1966 - Acquiescence/Waiver.
Allowing the appeals, the Court
HELD: 1.1 The Outline Development Plan (ODP)/Master
Plan was prepared by the Planning Authority for the new planning
area and had received approval of the State. In the backdrop of
the stated agreements, ODP/Master Plan and the amendment
to Zonal Regulations of ODP/Master Plan, the Project
Proponents submitted an application to the Planning Authority
for sanction of group housing scheme in 53 acres 5 guntas of
land, which included lands transferred to the Project Proponents
under sale deeds and notified under Section 28(4) of the
Karnataka Industrial Areas Development Act, 1966. Later on,
the Project Proponents submitted modified development plan for
permission to set up group housing scheme in 42 acres 30
guntas of land by excluding the lands in respect of which no sale
deed was executed in their favour. The present (fifth) round of
litigation is by the Project Proponents themselves, who had
applied to the Planning Authority for grant of permission for
construction of group housing scheme at the stated location(s).
That permission having been rejected, subject writ petitions
were filed before the High Court, which have been disposed of
by the common judgment and order of the Division Bench. The
High Court posed wrong questions to itself and that led to the
erroneous and untenable conclusion deduced by it. The
fundamental issue is: whether the subject modified plan
submitted by the Project Proponents directly to the Planning
Authority for approval is replete with deviations and/or violation
of the stipulations and specifications in the FWA? In that, the
FWA had circumscribed the user of the land in terms of the
location(s), as well as, the area thereof for implementation of the
Project. If so, was it imperative for the Project Proponents under
the FWA to obtain prior approval of the State including that of
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the Empowered Committee? And if that was declined or granted
in part, should they take recourse to remedy of resolution of
disputes or through arbitration mechanism, as provided in the
FWA itself? If all these questions were to be answered in favour
of the Project Proponents, only then the Court could be called
upon to examine the justness of the four reasons recorded by
the Planning Authority. The High Court hastened to examine the
justness of the reasons given by the Planning Authority for
rejecting the proposal, vide the impugned communication dated
7.2.2015. The Integrated Infrastructure Corridor and Finance
Project (the Project) was conceived and formalised to construct
a privately financed infrastructure corridor and seven new
Townships between Bangalore city and Mysore city in Karnataka
State. The Project also included construction of the southern
section of the Bangalore City Outer Peripheral Road. The
infrastructure corridor was to include a modern, four-lane
(extendable to six-lane) limited access expressway; potable
water, sewage treatment, and electric power transmission
facilities; and fibre optic communication cables. The southern
section of the Outer Peripheral Road was to link the
infrastructure corridor with the region's entire highway network.
The report (PTR) plainly sets out that the seven new Townships
were to be organic, self-sufficient communities, each with its own
unique economic base and directly served by the infrastructure
corridor. All this would fulfil the National and State policy goals
for population dispersion, infrastructure modernisation and
economic development, and inevitably, economic and
infrastructure privatisation. As a limited-access expressway with
a continuous barrier on either side, the road was intended to
prevent ribbon development, increase efficiency of individual
travel and cargo movement, and improve vehicle safety. It also
notes that it was intended to provide access to existing and
proposed Townships, for which nine (9) interchanges were to be
constructed along the length of the expressway. Location(s) of
the interchanges, as well as, the "Townships" area were clearly
demarcated in the PTR. Section I of the report (PTR) deals with
topics such as Socio- Economic Profile, Highway Planning
Issues, Recommended Scheme, Traffic Data and Analysis,
Engineering Design, Bridges, Initial Environmental Examination,
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Cost Estimate, Privatisation of Highway Projects, Appendix-I and
Appendix-II. Under topic "Recommended Scheme", the details
of
the
Expressway,
Underpasses/Overpasses,
Cattle
Underpasses, Utilities Road, Interchanges, Service Areas, Toll
Plazas, Central Administrative Complex, Express Lighting, City
Centre Access etc. have been duly elaborated including their
exact location and other essential specifications. The project
report (PTR) was deliberated and eventually translated into a
formal decision of the State with some modifications and changes
to the recommendations made therein. Finally, the Framework
Agreement (FWA) was executed between the State and NICE.
Even this agreement at the outset - in the recitals,
unambiguously refers to the PTR and the necessity to implement
the Project as finally approved by the Government in larger
public interest. The underlying concern of the State was about
the increasing urbanisation problems and to assuage the hardship
caused on that account to the general public. The Project, as
envisaged and finalised was intended to achieve the objective
of orderly development of Bangalore as a major industrial,
commercial and residential city. [Paras 7, 11-14, 36-40][799-EG; 800-A-C; 820-D-H; 821-A; 825-B-C; 835-G-H; 836-A; 838E-F]
1.2 The PTR had suggested creation of seven Townships,
but in the final decision, as noted in the FWA, only five
Townships have been approved as part of the Project being
Townships 1, 2, 4, 5 and 7. It was a conscious decision taken by
the State to have limited number of self-sustaining Townships
in the entire belt, so as to fulfil the National and State policy goals
of population dispersion and to ensure proper functionality in the
region. In other words, the FWA predicates that the Project
Proponents will be allowed to develop only five Townships at
the demarcated locations and which are self-sustaining with
sufficient infrastructure for ensuring smooth and accident-free
traffic on Bangalore-Mysore Expressway stretched to about 140
kilometres. There is no room for giving liberal meaning to the
stipulations and specifications which would inevitably defeat and
frustrate the underlying objective of the Project- of orderly
development of Bangalore City and to address the everincreasing urbanisation problems. The FWA executed between
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the State and the Project Proponents delineates the nature of
contract and the scope of work to be carried out by the Project
Proponents, as per the terms and conditions specified therein.
It is an integrated project not only for construction and
management of Expressway, but also creation of Townships at
the demarcated location(s) as per the specifications and area
earmarked therefor. The "Infrastructure Corridor" has been
defined as having the same meaning as set forth in the recital
(4th WHEREAS clause) of the FWA. It means, collectively, the
Land, the Toll Road, the Townships, the Power Plants, the
Telecommunication Facilities, Water Supply Facilities and the
Waste Water Treatment Facilities and other developments, and
the acquisition, design, construction, engineering, financing and
implementation thereof, as referred to in the PTR. "Townships"
is, therefore, an identified and well-defined component of the
"Infrastructure Corridor Project". From this definition, it is
amply clear that only five Townships (each having different
purpose - such as Corporate Centre, Industrial Centre,
Ecotourism Centre, Heritage Centre and Commercial Centre)
have been envisaged in the Infrastructure Corridor Project. The
location(s) of these five Townships have been identified in the
PTR. Besides the location(s), the extent of area to be utilised
for creation of each Township has also been specified in the PTR,
which applies proprio vigore to the expression "Townships" in
the FWA. The term "Townships", no doubt, includes housing,
but a standalone group housing scheme cannot be regarded as
a Township as such. The Townships would, however, comprise
of not only housing, but also schools, hospitals, shopping
complexes, parks and open spaces as noted in Schedule 4.
Besides Schedule 4, it may be appropriate to advert to Schedule
1, which deals with the total Land to be used for the
Infrastructure Corridor Project. The bifurcation of the extent of
land to be used for different activities, such as Toll Road and
Township areas township-wise, is also specified. To put it
differently, the Project Proponents are obliged to construct the
five Townships at the demarcated location(s) only and to the
extent of land specified therefor. Any other proposal of the
Project Proponents would be nothing short of deviation from the
FWA in particular. The Project Proponents are obliged to
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construct housing in the area demarcated for Townships and
ensure that the other socio-economic infrastructure components
such as schools, hospitals, shopping complexes, parks and open
spaces etc. are also provided for within the Townships. The
construction of the essential components including housing, as
expressly provided in the FWA, must also comply with the
municipal laws governing such constructions. Indeed, while
planning for the development of Townships, it is open to the
Project Proponents to deviate from the PTR within the defined
norms to the extent such deviation is required to enable the
parties to realise the full benefits intended from development
of the Project. But, that is required to be done only with prior
written approval of the State. This is made amply clear by Article
7.1 of the FWA itself. Article 3 deals with the obligations of the
State for implementation of the Project referred to in the FWA.
Considering the fact that the State is obliged to facilitate the
Project Proponents to deviate from the PTR specifications
adopted in the FWA for the development of Townships, that does
not mean that the Project Proponents will set up housing complex
at location(s) other than those demarcated for five Townships
including not providing for other components of Townships in
the proposal or limit the proposal only to one component, such
as housing and excluding the other mandatory components -
schools, hospitals, shopping complexes, parks and open spaces
etc. Such interpretation cannot be countenanced and if
accepted, it would inevitably defeat the very purpose of the welldefined project intended to address the increasing urbanisation
problems and for orderly development of Bangalore City
including smooth and accident-free traffic between Bangalore
and Mysore Expressway. [Paras 41-44][838-H; 839-A-F; 840B-C; 841-H; 842-D-F; 844-D; 848-C; 850-C-D]
2.1 The next question is: whether the stipulations and
specifications in the FWA regarding the scope of work and the
application of both parties stood modified or altered due to
supplementary agreements dated 6.10.1999 and 31.3.2000?
Even on a fair reading of these agreements, there is no express
clause therein which would alter the scope of work and the
obligations of both parties regarding the setting up of five selfsustaining Townships only at the demarcated location(s). The
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supplementary agreements, however, deal with other aspects
with which the Court is not concerned nor are the same relevant
to decide the matters in issue. Similarly, the Tripartite
Agreement dated 9.8.2002 between the State, NICE and NECE
also does not alter or modify the stipulations and specifications
for setting up of five self-sustaining Townships only at the
demarcated locations. The Court fails to understand as to how
this clause can be construed to mean that the original stipulations
and specifications regarding the five designated Townships in
the FWA stood modified or altered in any manner. This clause
only deals with the meaning of "Stage 1 of the Infrastructure
Corridor". Indeed, clause (c) thereof refers to Township-1, but
that reference is in the context of basic development and sale
of land, and by no stretch of imagination, can be construed to
mean that Township-1 (Corporate Centre) could be set up at
any other location much less at intersections demarcated in the
PTR. The purpose of intersections is to provide for free flow of
traffic across the area. All the five Townships referred to in the
PTR are indisputably far away from intersections. Despite that,
the Project Proponents have proposed for group housing
scheme in Section A of the Project at intersections 5/7 thereat
on the peripheral road. This is notwithstanding the fact that even
the Tripartite Agreement does not modify the location(s) and
specifications for the Townships referred to in the PTR, which
forms part of the FWA. The thrust of the argument of the Project
Proponents is that housing is a permitted usage, in terms of the
ODP/Master Plan. For, the area for which the proposal for group
housing scheme had been submitted is within yellow zone/
residential zone. The question is: whether the Project
Proponents can rely solely on ODP/Master Plan, notified by the
Planning Authority in exercise of statutory function as a Planning
Authority (for the entire area including the Project area)? The
ODP/Master Plan, no doubt, would apply and must be reckoned
if any building proposal/plan is submitted to the Planning
Authority. However, the Project Proponents are obliged to
develop the Project only in the manner provided for in the FWA.
For, the right to develop the Project bestowed on the Project
Proponents flows, primarily, from the FWA and the
supplementary agreements in that regard. Unless the FWA
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enables the Project Proponents to set up Townships at
location(s) other than location(s) for five Townships demarcated
in the FWA read with PTR and as standalone group housing
scheme, the question of Project Proponents unilaterally using
the allotted land for construction of a group housing scheme
spread over in 42 acres and 30 guntas, that too at location(s)
other than demarcated for five Townships, cannot be
countenanced. Only upon grant of prior permission by the State
in that regard, the stipulations in the FWA (about the location(s)
of the Townships/group housing scheme), would stand relaxed
and modified and the Project Proponents would then be entitled
to pursue such proposal with the Planning Authority. The State
can do so in terms of Article 3.2.3 and the Project Proponents
can request the State in that regard by invoking the enabling
provision in Article 7.1 (both of the FWA). The zone specified
in the ODP/Master Plan per se is not enough to allow the Project
Proponents to unilaterally use the land made over to them after
acquisition from private land owners for the Project, for purpose
and manner other than specified in the FWA and the PTR. [Paras
45-47][850-E-G; 851-B-H; 852-A-D]
2.2 The second round of litigation was again a public
interest litigation to question the land acquisition proceedings
initiated by the State for implementation of the Project. The
group of writ petitions came to be disposed of by the Division
Bench of the High Court, resulting in dismissal of stated writ
petitions and issuance of a direction to the State to continue to
implement the Project. That decision was affirmed by this Court
in State of Karnataka & Anr. Vs. All India Manufacturers
Organisation & Ors. Neither the judgment rendered in appeal
by this Court in All India Manufacturers Organisation nor the
observation found in the order dated 3.11.2009 (passed by this
Court in Contempt Petition (C) No. 144/2006 and connected
contempt petitions in Civil Appeal Nos. 3492-3494/2005) will be
of any avail to the Project Proponents. For, the Court was not
called upon to adjudicate the question even indirectly, as to
whether the subject proposal for setting up of group housing
scheme could be proceeded directly before the Planning
Authority just because it is in conformity with the ODP/Master
Plan and even though it is proposed at a location different than
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the demarcated location(s) for the five Townships in the FWA
read with the PTR. No such plea was raised by the Project
Proponents. In other words, none of the Court orders referred
to by the Project Proponents had examined the questions/issues
involved in these appeals. Admittedly, in the present case, the
modified proposal submitted by the Project Proponents on
5.5.2012 for developing 42 acres 30 guntas of land as group
housing scheme, pertained to Survey Nos. 17(P), 18, 19, 20/1,
20/3, 21/1(P), 21/2A2(P), 21/2B(P), 21/2C(P), 21/2D(P) and 21/
2E(P) at village Kommagatta, Kengeri Hobli, Bangalore South
Taluk (at intersection 5/7, Section A of the Project on the
peripheral road). It was not for setting up of Township as such.
Neither the PTR nor the FWA envisages construction of
standalone group housing scheme, that too at a location other
than demarcated location(s) for five Townships. Thus, it was a
clear case of deviation from the stipulations and specification
contained in the FWA read with the PTR; and to relax or modify
the same, prior permission of the State is made mandatory in
terms of the Article 7.1. For that reason, the Planning Authority
had informed the Managing Director, NECE vide letter dated
28.5.2012 to obtain NOC from the concerned authorities.
Notably, even the State had intimated the Planning Authority vide
letter dated 19.12.2013 sent by the Principal Secretary, Public
Works, Ports and Inland Water Transport Department, that in
respect of change in land use and approval of residential
developments, prior decision of the Empowered Committee
should be obtained. [Paras 4, 49-51][797-E-G; 798-A; 854-E-H;
855-A-C; 860-D]
State of Karnataka & Anr. v. All India Manufacturers
Organisation & Ors. (2006) 4 SCC 683 : [2006] 1
Suppl. SCR 86 - held inapplicable.
2.3 Article 7.1 of the FWA obliges the Project Proponents
to submit proposal to the State for approval in case of any
deviation. No such proposal was submitted to the State. Instead,
the Project Proponents pursued the matter directly with the
Planning Authority. In that sense, prior approval of the State for
deviating from the FWA and in particular constructing housing
complex at location other than demarcated for Townships, is not
forthcoming. Admittedly, no such approval was taken. If such
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proposal was to be submitted to the State, it would be open to
the State to examine the same on its own or refer the matter to
the Empowered Committee constituted for resolving such issues,
as envisaged in Article 4 of the FWA. Indeed, the Empowered
Committee is not a statutory committee, but it can be so
constituted in terms of Article 4 read with Schedule 6, consisting
of high officials of the concerned departments. This is only to
facilitate quick processing of the proposals and implementation
of the Infrastructure Corridor Project with mutual understanding
and due consultation wherever necessary. It may be assumed
that the Empowered Committee may not agree with the
proposal, as it may be of the view that the deviation is quite
substantial and would disrupt the core objective of the Integrated
Infrastructure Corridor (the Project), which has been designed
with purpose of holistic and orderly development of the region
as a whole. In that eventuality, the Project Proponents would be
required to resort to mechanism of resolution of disputes
envisaged in Article 18 of the FWA. A priori, it must necessarily
follow that the Project Proponents cannot and ought not to have
directly approached the Planning Authority for grant of stated
permission in reference to the provisions in the KTCP Act or
ODP/Master Plan. If the proposal to be submitted by the Project
Proponents was compliant with the stipulations and specifications
given in the FWA read with the PTR, only then the Project
Proponents could justifiably approach the Planning Authority
directly for grant of permission as per the extant regulations
and municipal laws applicable in that regard, to construct
buildings and structures for establishing a Township. In other
words, the proposal/application of the Project Proponents would
be a valid proposal/application to the Planning Authority only if
it was to be in strict compliance with the land use specified in
the FWA read with the PTR. In case of any deviation therefrom,
it ought to accompany a formal prior approval of the State or
the Empowered Committee, as the case may be, so that it can
be processed further by the Planning Authority. [Paras 52,
53][863-C-D; 865-F-H; 866-D-F]
3.1 Much emphasis was placed on the fact that the
appellants had permitted the Project Proponents to construct
housing complex at a location outside the demarcated area for
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the five Townships referred to in the FWA. Similarly, as the
stated location was falling in yellow zone being residential, the
other neighbouring private land owners were permitted to
develop their property for housing complex. This argument does
not take the matter any further for the Project Proponents,
inasmuch as the land in question has been allotted to the Project
Proponents by the State after acquiring it from private land
owners for implementation of the Project. For that reason, the
use of the land should be strictly in conformity with the FWA
and the applicable stipulations in the PTR. It is not open to the
Project Proponents to contend that they can unilaterally develop
the land allotted to them by the State in the manner other than
specified in the FWA, being bound by the contractual obligations
flowing from the FWA. Notably, the State had granted prior
permission to the Project Proponents to construct housing units
at location(s) other than the five Townships. That was to
accommodate the concerned land losers in connection with the
same Project as per the policy of the State. Besides, the stated
housing complex is not spread over in 42 acres and 30 guntas
of land, so as to disrupt the holistic development envisaged in
the FWA/PTR. In any case, that could be done only after
obtaining prior approval of the State in that regard. As regards
permission given to the private land owners, as aforesaid, that
was given by the Planning Authority as per the applicable town
planning regulations and in particular the use specified in the
ODP/Master Plan. For, their lands did not form part of the
Project and also because they are not bound by the stipulations
in FWA in particular, unlike the Project Proponents. [Paras 54,
55][866-G-H; 867-A-D]
3.2 Reverting to the factum of assurance given by the
Planning Authority in the earlier round of writ petition(s) that
the modified proposal/application dated 5.5.2012 will be
considered in accordance with law and also that the State was
party to that petition, does not entail in acquiescence or waiver
of the jurisdictional issue by the State (regarding necessity of
seeking prior approval of Empowered Committee and No
Objection (Certificate)/approval from the concerned State
authorities). In that, the assurance given by the Planning
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Authority cannot come in the way of the State to urge that in
law, the Project Proponents had no authority to develop the lands
in question except as per the stipulations and specifications
prescribed in the FWA read with the relevant clauses of the PTR.
As a matter of fact, the earlier writ petitions were not decided
on merits, but came to be disposed of leaving all contentions
open, in lieu of the assurance given by the Planning Authority
that it would consider the modified application as per law. In the
present writ petitions, therefore, the State in the larger public
interest is duty-bound to take a legal plea regarding jurisdictional
issue including the extent of right of the writ petitioners (Project
Proponents) being limited to stipulations in the FWA. Thus,
neither the unilateral assurance given by the Planning Authority
nor the fact that such specific reason has not been recorded by
the Planning Authority in the impugned communication or that
the State was party to the said writ petitions, would denude the
State from raising the legal question regarding the scope of
the FWA disentitling the Project Proponents for grant of any
relief in the subject writ petitions. Further, the High Court in
the guise of issuing mandamus to the Planning Authority for
issuing the Commencement Certificate, in effect, has prevented
the State from calling upon the Project Proponents to strictly
abide by the stipulations in the FWA. That cannot be
countenanced. It is urged that this Court had held that it would
be open to the Project Proponents to carry on construction work
of housing on lands which are not falling within the Townships
area, if the same were otherwise permissible under the ODP/
Master Plan and the town planning regulations. This submission
is founded on complete misreading of the observations in the
decision of this Court in All India Manufacturers Organisation.
The lis before this Court including review petition(s) had arisen
on account of the challenge to the FWA and also the acquisition
of land for the purpose of the corridor project being excessive.
Neither the High Court nor this Court was called upon to answer
the issue now raised by the Project Proponents that it was free
to construct standalone group housing scheme and at location(s)
outside the demarcated five Townships (in the FWA/PTR). The
argument of the Project Proponents that the plea taken by the
State is hit by res judicata and in any case, by principles of
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v.
NANDI INFRA CORRIDOR ENTERPRISE LTD.
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constructive res judicata, cannot be countenanced. As a matter
of fact, the Project Proponents did not pursue the plea of res
judicata or of constructive res judicata before the High Court.
Even if it can be considered as a question of law, the same does
not arise in the fact situation of the present case. [Paras 5658][867-E-H; 868-A-H]
3.3 The Project can be taken forward by the Project
Proponents only in conformity with the stipulations and
specifications in the FWA and the PTR. Additionally, the Project
Proponents are also obliged to ensure compliance of ODP/
Master Plan and if so complied, the Planning Authority cannot
create any impediment. If the State accords approval to the
deviation in terms of the FWA itself, the Project Proponents may
be competent to carry on such a work. Prior approval of the
State for deviation from the stipulations and specifications in the
FWA is the quintessence. Further, the dictum in M.
Nagabhushana (in third round of litigation which challenged the
acquisition proceedings initiated for implementation of the
Project. That challenge was rejected by the Division Bench of
the High Court. The said proceedings culminated with the
decision of this Court in M. Nagabhushana) will also be of no
avail to the Project Proponents as it does not militate against
the Planning Authority and State, in particular. The direction
issued by the High Court in the impugned judgment, in any case,
cannot be countenanced in law. But this question has become
academic for the view already taken that the Project Proponents
could not have directly approached the Planning Authority for
approval of modified proposal, which was replete with deviations
from the stipulations and specifications in the FWA read with the
PTR. This is so because the right in favour of the Project
Proponents to carry on development work on the lands referred
to in the FWA and the PTR would enure only in conformity with
the stipulations and specifications in the stated documents. It
is not open to the Project Proponents to develop the land in any
other manner, unless permitted by the State. The impugned
judgment of the High Court is set aside with liberty to the
Project Proponents to first approach the State (under Article 7
of the FWA) for its prior permission to allow them to deviate
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from the stipulations and specifications in the FWA and the PTR.
Further directions issued.[Paras 60, 62, 66-68][869-D-E; 870C; 873-E-G; 874-A-B]
M. Nagabhushana v. State of Karnataka & Ors. (2011)
3 SCC 408 : [2011] 2 SCR 435 ; Dakshinamurthy v.
B.K. Das, IAS & Ors. (2010) 1 SCC 64 - held
inapplicable.
Tata Cellular v. Union of India (1994) 6 SCC 651 :
[1994] 2 Suppl. SCR 122 ; Raunaq International Ltd.
v. IVR Construction Ltd. & Ors. (1999) 1 SCC 492 :
[1998] 3 Suppl. SCR 421 ; Association of Registration
Plates v. Union of India & Ors. (2005) 1 SCC 679 :
[2004] 6 Suppl. SCR 496 ; Michigan Rubber (India)
Limited v. State of Karnataka & Ors. (2012) 8 SCC 216
: [2012] 8 SCR 128 ; Badrinath vs. Government of
Tamil Nadu & Ors. (2000) 8 SCC 395 : [2000] 3
Suppl. SCR 573 - referred to.
S.M. Mohan Rao Nadgir v. State of Karnataka & Ors.
Decision dated 28.2.2005 of High Court of Karnataka
in Writ Appeal No. 72/2004 - held inapplicable.
H.T. Somashekar Reddy v. Government of Karnataka
& Anr. 1998 SCC Online Kar 609 - referred to.
Case Law Reference
[2006] 1 Suppl. SCR 86
held inapplicable
Para 4
[2011] 2 SCR 435
held inapplicable
Para 5
[1994] 2 Suppl. SCR 122
referred to
Para 22
[1998] 3 Suppl. SCR 421
referred to
Para 22
[2004] 6 Suppl. SCR 496
referred to
Para 22
[2012] 8 SCR 128
referred to
Para 22
(2010) 1 SCC 64
held inapplicable
Para 59
[2000] 3 Suppl. SCR 573
referred to
Para 65
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v.
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CIVIL APPELLATE JURISDICTION : CIVIL APPEAL NO.
2116-2128 OF 2020.
From the Judgment and Order dated 15.10.2019 of the High
Court of Karnataka at Bengaluru in Writ Petition Nos. 16576-77/2015
and 18481-91/2015(GM-RES).
With
C.A. No. 2129-2141/2020
C.A. Sundaram, Chander Uday Singh, Mr. Mukul Rohatgi,
Dr. A.M. Singhvi, Sr.Advs., Ms. Anitha Shenoy, Shailesh Madiyal,
Sudhanshu Prakash, Kartik Anand, Rohini Musa, Zafar Inayat, Ms.
Sanjana Grace Thomas, Abhishek Gupta, Shubhranshu Padhi, Ms. Sruti
Chaganti, Ashish Yadav, Rakshit Jain, Vishal Banshal, Mahesh Agarwal,
Ankur Saigal, Anirudh Bhatia, Rohan Pratap Talwar, Ms. Aashna
Agarwal, Ms. Abha Saigal and E. C. Agrawala, Advs. for the appearing
parties.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. These appeals filed by Bangalore Mysore Infrastructure
Corridor Area Planning Authority1 and the State of Karnataka2 directed
against the common judgment and order dated 15.10.2019 passed by
the High Court of Karnataka at Bengaluru3 in Writ Petition Nos.
16576-16577/2015 and 18481-18491/2015 (GM-RES), whereby the
High Court quashed the communication bearing No. BMICAPA/339/
Praa.Pra.Pa./1541/2011-12 dated 7.2.2015 issued by the Planning
Authority rejecting the application made by the respondent No. 1 -
Nandi Infrastructure Corridor Enterprise Limited4 and respondent No.
2 - Nandi Economic Corridor Enterprises Limited5,6, dated 5.5.2012, for
permission to develop a group housing scheme under the Framework
Agreement dated 3.4.19977 in different survey numbers at Kommagatta
village, Kengeri Hobli, Bangalore South Taluk (at interchanges 5/7 of
peripheral road) covering 42 acres 30 guntas of land. The High Court
1 For short, "the Planning Authority"
2 For short, "the State"
3 For short, "the High Court"
4 For short, "NICE"
5 For short, "NECE"
6 NICE and NECE are jointly referred to as "the Project Proponents", for short
7 For short, "the FWA"
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additionally directed the Planning Authority to issue Commencement
Certificate to the Project Proponents in terms of application dated
5.5.2012, within six weeks from the date of receipt of copy of the High
Court's order.
2. This is the fifth round of litigation pertaining to the Integrated
Infrastructure Corridor and Finance Project8 situated between
Bangalore and Mysore, Karnataka, consisting of residential, industrial
and commercial facilities, such as, among other things, self-sustaining
Townships, expressways, utilities and amenities including power plants,
industrial plants, water treatment plants and other infrastructural
developments, as more specifically described in the Infrastructure
Corridor Project Technical Report9 dated August, 1995, as amended.
3. The first round of litigation was in the form of a public interest
litigation filed by H.T. Somashekar Reddy before the High Court,
questioning the requirement of land for the Project as per the FWA for
development of industrial infrastructure facilities (residential, commercial,
industrial etc.) and to quash the FWA besides directing an enquiry to
be conducted by Central Bureau of Investigation10. That challenge was
rejected by the Division Bench of the High Court vide judgment and
order dated 21.9.1998 in Writ Petition No. 29221/199711 and which
decision came to be affirmed by this Court on 26.3.1999 in SLP(C)
No. 4922/1999, dismissing the said special leave petition in limine.
4. The second round of litigation was at the instance of J.C.
Madhuswamy and Srirama Reddy, again a public interest litigation to
question the land acquisition proceedings initiated by the State for
implementation of the Project. The main grouse in this petition was about
excess land being acquired for real estate purpose near Bangalore at
interchange areas to pass on the benefit to the Project Proponents and
illegal sale of land for construction of Bangalore Exhibition Centre. The
group of writ petitions raising aforementioned challenge being Writ
Petition
Nos.
45334/2004
(GM-RES-PIL),
45386/2004
(PIL-LA-KIADB) and 48981/2004 (GM-RES-PIL) came to be
disposed of by the Division Bench of the High Court vide judgment
8 For short, "the IICFP" or "the Project"
9 For short, "the PTR"
10 For short, "the CBI"
11 Reported as H.T. Somashekar Reddy vs. Government of Karnataka & Anr., 1998
SCC Online Kar 609
BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v.
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and order dated 3.5.2005, resulting in dismissal of stated writ petitions
and issuance of a direction to the State to continue to implement the
Project. That decision was affirmed by this Court in State of Karnataka
& Anr. Vs. All India MAnufacturers Organisation & Ors.12.
5. The third round of litigation was at the instance of one
M. Nagabhushana, challenging the acquisition proceedings initiated for
implementation of the Project. That challenge was rejected by the
Division Bench of the High Court in Writ Appeal No. 1192/2007 vide
judgment and order dated 23.7.2010. The said proceedings culminated
with the decision of this Court in M. Nagabhushana vs. State of
Karnataka & Ors.13.
6. The fourth round of litigation was initiated by Abraham T.J.
in reference to allegations of illegality and offences committed under
the Prevention of Corruption Act in the course of implementation of
the Project. That culminated with the dismissal of SLP(Crl.) No. 397/
2017 vide order dated 5.9.2018 and R.P.(Crl.) 647/2018 in the dismissed
SLP vide order dated 11.12.2018 by this Court.
7. The present (fifth) round of litigation, however is by the
Project Proponents themselves, who had applied to the Planning
Authority for grant of permission for construction of group housing
scheme at the stated location(s). That permission having been rejected
on 7.2.2015, subject writ petitions were filed before the High Court,
which have been disposed of by the common judgment and order dated
15.10.2019 of the Division Bench, in the following terms: -
"ORDER
(i) Writ petitions are allowed.
(ii) Communication bearing No. BMICAPA/339/Praa. Praa.
Pa/1541/20 11-12 dated 07.02.2015 (Annexure-A) issued
by first respondent to the petitioner is hereby quashed.
(iii) A writ of mandamus is issued directing first respondent
to issue commencement certificate as sought for by the
petitioner in its application bearing No. NECE//05/170
12 (2006) 4 SCC 683
13 (2011) 3 SCC 408
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dated 05.05.2012 (Annexure-G) expeditiously and at any
rate, within an outer limit of 6 weeks from the date of
receipt of copy of this order.
(iv) Costs made easy."
8.