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

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A 1.4. Compared to Karnataka’s growth in population during 1981-91 which was 20.09%, the growth of population of Bangalore urban area was 59.08% during 1971-81 and 38.00% in 1981-91 and that of rural Bangalore was 24.30% during 1971-81 and 14.70% in 1981-91. B 1.5. As against this, Mysore with a population of 6.52 lakhs in 1991 recorded a growth of 24.97% in 1971-81 and 21.58% in 1981-91 at the district level. Various agencies estimated the expected population of Bangalore during 2001 as 70 lakhs (Town Planning Department) and 82 lakhs (anticipated by Bangalore Water supply and sewage Board). The Comprehensive C Development Plan (CDP) 1984 for 2001 of Bangalore Development Authority (BDA) projected a population of 70.00 lakhs for Bangalore in 2001. The revised (1995) CDP for 2011 AD proposed land uses for 56,465 hac. as against 43,928 hac. During 2001. This is in addition to the green belt, surrounding the conurbation area.

16. The rapid increase in population necessitated a thinking process to contain Bangalore to a reasonable size, assure it the desired level of civic and social services to keep its premier status and direct additional growth to alternate places in a desirable manner. The acute problems of Bangalore are increasing level of pollution, pressure on land, acute shortage of water, inadequate sewaging system and lack of proper sewage treatment and disposal arrangements, shortage of power, shortage of residential accommodation,inefficient telecommunication system, paucity of land space within green belt etc. 1.7. Bangalore, located at an elevation of +900m is suffering for want of a good transport system, inter and intracity wise. A reliable power supply system to assure 1000mw was planned as a part of Karnataka power requirement. Tourist and amusement areas like T.G. Halli Reservoir, Hesarghatta Tank, Bannerghata National Park and Ramohalli Banyan Tree and Kanva Reservoir were considered, but no active steps taken. The region lacks the facility of good environment parks or amusement places.

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The above and many other factors indicate that there is a A need for a policy to establish urban growth centers, with dependable infrastructure and accessibility to the metropolitan area along a fast corridor. Examples of this nature are many in Switzerland, Norway, Mourville away from Paris in France are just a few instances of polycentred settlements working as countermagnets, with a strong support base. The townships along the proposed Bangalore Mysore Expressway would go a long way in reducing pressure on Bangalore. These settlements should, however, take into account the growth pressure likely to be faced by them after a decade of their completion. Creation of new settlements is likely to bring in better results compared to improvements and modification or creating new urban extensions to metropolitan Bangalore as these actions need to necessarily serve under severe constraints on the other facilities like land, transport and power. Usewise for any unit of expenditure, the efficacy of modifications will be comparatively less. The environment and purity will only reduce. But in the case of new settlements, it will be easier to achieve better results. It is, however, necessary to ensure that the existing structures and balances in the rural sector are not thoughtlessly disturbed; the emphasis in the new townships should be for achieving a high degree of green and low rise and low density development. A very important aspect is to give orientation towards the direction in which new townships should grow. Referring to Bangalore, good transport facilities towards Mysore are in the offing which is a good boost for industrial and tourism growth. Mysore having an excellent source of shelter, tourism, industry, and raw materials, will serve very well the purpose of an important supporting city (as the other end of a corridor of development with other facilities and settlements dispersed judiciously in between). Secondly, there are three medium irrigation projects near about Bangalore viz the Manchanabale Project, the lggalur project and the Arobele project, which can yield some water for supporting the growth. Rivers Arakavati Shimsa and Cauveri are on the corridor towards Mysore. The Ground Water department ascertained that there is good ground H

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A water development possibility for making about 33,000 additional well structures in Bangalore; 41,600 in Mysore and 42,100 in Mandya. At least it indicates good ground water condition at depths ranging 50m and more. By far the climatic and physical conditions in this area are very congenial, compared to some other areas in Karnataka. Therefore, it is most desirable to develop B the belt as a corridor with settlements of high order of infrastructure well connected to the two metropolitan towns of Bangalore and Mysore. Selection of Townships C 1.10 Estimates indicate that the population of Bangalore will reach 85 lakhs by 2011. There is an absolute need to restrict the population to 70 lakhs by 2011. Even for achieving this objective, a number of measures to prepare Bangalore for sustaining a holding capacity of 70 lakhs will be required to be taken. The proposal now is an effort to absorb almost 7 to 8 lakhs population D in the proposed corridor by developing seven townships (Mandya, Maddur, Ramanagram and Chanpatna shall be geared to absorb about 2.0 lakhs additional population). The balance of 6 lakh population has to be diverted across towards other countermagnets and some administrative actions taken. E 1.10.2 The selection of the seven townships and the need for land has been done by physical examination of the present ground level conditions and development. Since an expressway is being considered, a comprehensive view has been taken about the availability of access to the corridor from the proposed townships each of which will be given an access to the expressway. 1.10.3 Availability of water is an important consideration. There are no water sources of perennial nature, barring Cauveri which can be tapped for water supply to these townships. Ground water conditions do indicate the presence of water at depths 40 to 50m between the rocks, but this is not an adequate source to sustain the nature and level of development. Even the National Water Policy hints that drinking water for urban areas shall be met from surface flows, and only in rural areas, extensive dependence on tube wells may be considered. Heavy exploitation of subsoil water can reduce the growth of greens. The idea of bringing water from

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Cauveri along the expressway and supplying to the townships is the only solution. Some water to be tapped trough tube wells and water ponding by digging lakes can be only auxiliary measures. 1.10.4. Efforts are being made to avoid acquisition of lands which are under good cultivation. Such lands which are good for agriculture and gardens are being almost avoided. Forest land is also being avoided. Since it is necessary to have one expanse of land of about 2,000 acres and more for about 1.0 lakh population (or more), search was made for presence of continuous plots of land, as far as possible, forming a regular geometric figure without wedges projecting in or out. However in a few cases, a few villages and major district roads exist on ground in the midst of such expansive areas. In such cases, the villages and road are to be integrated suitably with other planning, and some measures will have to be taken to integrate them with main area. This will be a right step to encourage the rural settlements adopting new norms of a system and not distort, or feel disparities. D 1.11. The area on the corridor towards Maddur and Mandya are highly agricultural in character with existing irrigation facilities. It is for this reason that more townships are located in the first half of the corridor nearer to Bangalore and only 2 out of seven in the other half of corridor nearer Mysore. E Fig. 3.1 (Section-I) shows the location of the townships and the areas and the location of expressway. Where the township area is away from the expressway, a dedicated road with good specification is proposed to be constructed up to the expressway as a part of the township development. They will be served through the Expressway interchanges. To avoid speculation, no survey of land has been done. Help of Topo maps has been taken to know ground conditions. Ground conditions are further examined by limited walking along. There are some changes on ground since the last survey work was done for preparing topo maps. Land use maps of each township have been prepared to indicate the suggested breakup of areas. After the land is finally selected and ground survey done to some extent of precision (the existing maps are to a scale of 1:50,000), the land uses firmed up and density H

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A can be finally decided with zoning and other development components like FAR, Height, Set Backs, Architectural Control etc. 1.14. The present comprehensive development plan for Bangalore shows the following land use pattern. In addition, there is a green B belt on the periphery Residential 43.16% Commercial 2.91% Industrial 6.81% C Public and Open Spaces 13.79% Public and semi public 8.69% Transportation 20.72% Unclassified 3.92% D 100.00% 1.15. Some townshipsare exclusively designed to promote industry and one for Environment and amusement. The land use pattern at city level in Bangalore cannot be extended for townships outside. The land use pattern in the E other township areas will generally be as below. Housing 30-50% Parks, open spaces 15-20% (excl. Agr. University) Commercial 5-10% F Industrial 0-20% Roads and Utilities 20% Municipal & Institutional 5-15% Total 100% G Subsequent chapters describe the concept of township layouts infrastructural services and the manner in which they will be designed and provided.” (emphasis supplied) H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 831 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

The Conceptual Aspects of Townships are separately discussed as second item in Section-II, which reads thus: - “2. CONCEPTUAL ASPECTS OF TOWNSHIPS 2.1 Problems of the urban community multiply with the increasing complexity of our age. The physical expansion of cities is running out of control, and the economic and social consequences command the attention of civic leadership in Government, business and industry. The Practical limitation of the pyramidal form of the city has forced decentralization. When the congestion at the core becomes unbearable, the inner layers slip out. The present exercise is to contain this phenomenon by planning the infrastructural corridor having seven new townships to cater to the varying and complex needs of the region, along the proposed expressway connecting Bangalore and Mysore. These are indicated on the index map. The new townships would be of relatively small sizes, designed to encourage pedestrians circulation and maintain close proximity to surrounding open space. The plans indicate an abundance of space flowing throughout the community. The special endeavour has been made to preserve natural wooded areas or unusual topographical characteristics in all the towns. The existing villages are assimilated in the overall schemes of development as they are existing on all sites. The human scale predominates in the total planning of all the new town ships which are planned as self-contained communities seeking a balance between sources of employment, business centres, centre for fashion technology, medical and other research centres etc. are suitably located in various townships which are essentially organic elements in a broad programme of decentralization of the congested urban centres of Bangalore and Mysore. In all townships, the floor-space required to be occupied by people and ground space for circulation has been carefully worked out. The emerging pattern is a balance between these elements. The high rise ‘Land Mark’ buildings, for all towns have been thought of essentially in the commercial sectors, to dominate the skyline and also to be seen from the Expressway. H

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A The grid pattern is followed for roads with circles and radials in some cases. Three types of principal rights of way have been followed, the respective width being 33.0, 24.5 m and 18.00 m. Each neighbourhood in the new townships has a small sub centre for shopping, a primary school, and social facilities. B The secondary schools serve several neighbourhoods. Fig. 3.1 indicates the general locations of the townships along the proposed Expressway and existing Bangalore-Mysore State Highway No.17. The existing villages and towns are also indicated. The distance in km is shown on the drawing along the alignment of proposed Expressway. There are five townships with in the distance of 40 kms from Bangalore and two townships in the vicinity of Mysore on either side of the Kaveri River. Township No.1 assumes great significance due to its proximity to Bangalore. It is situated on either side of the Expressway on the fringes of the Outer Ring Road of Bangalore city. The nature of this township may be roughly identified as a corporate township providing facilities for Research and Development, Business Centre, Hotels, Golf Course, Residential, and related infrastructure. Some facilities from the core of the city could be shifted here in a planned and organised manner. The entrance and exit to the township is through an interchange and toll-booths. This is located on the west of the town. The town is provided with a Green Belt on its periphery. Due consideration has been given to the ecological and environmental factors. The F total area of the township is 2792 acres. The ‘Land Mark’ buildings are proposed at appropriate locations. The city is designed as a self-contained entity with all facilities, including a hospital and a college with appropriate number of primary schools, high schools and other town requirements. G 2.8 Township No. 2 is located about 10 kms from the Bangalore conurbation boundary. The site is proposed to be developed as a commercial township, contributing to relieve the pressures of urbanization. H

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Covering an area of 1868 acres, the township is situated about A 7-8 kms off the Bangalore-Mysore Expressway and 4 kms from the existing railway line and state highway No.17 to the south of the township. The existing site features are more or less suitably modified according to the layout with an exception of a few rirulets, natural B water bodies and hillocks and rocky outcrops scattered within the site boundary. The proposed township site is bounded by two roads leading to Bangalore from Nejjala and Bidadi towns. A number of existing settlements are present all around the site boundary especially towards the south while two settlements fall within the site boundary. C

The basic design of this township revolves around the central core. This central core is the major commercial, business, services and institutional hub of the town. The residential area is distributed all around this central core. D The multifunctional central core offers varied services, right from a commercial complex to hotel, bus terminal municipal offices, institutional and office use, hospital, and college, all located within 2 kms from the farthest point in the township and hence confirms to the standards of human scale, facilitating use of non motorised form of transport. E

The road layout is more or less a grid pattern. Each residential pocket is to be developed as a self-contained neighbourhood with facilities like school, playground, park, dispensary, convenient shopping etc. F The environmentally friendly nature of the township is emphasized by developing the township for non- motorised transport system, encompassing the existing settlements within the overall structure of the township and provision of a green buffer all along the site boundary besides the provision of community parks and trees lining the major roads of the township. G Last but not the least is the link to the proposed Expressway which will be provided through an interchange on the expressway. 2.9 Township No. 3 xxx xxx xxx H

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A 2.10. Town ship No. 4 is about 36-37 kms. west of Bangalore along the proposed Expressway. The site has an area of about 1660 acres and is meant for the industrial land use. It is intended to accommodate different types of plots for the various industries. A green buffer is maintained all round the township and the environmental considerations shall be well looked after. The site has an approach from the Expressway. The necessary provision has also been maintained for the public and semi-public and the green areas. The town shall be designed on the lines of a modern Industrial township will all necessary trapping. 2.11. Township No. 5 is north of township no.4. This township is located near the existing Bangalore-Mysore State Highway No.17 and also near the existing Railway line. The site of this township in on the north of the existing village of Archahakra Halli, which is along the State Highway No.17 from where an existing roadway leads to the hinterlands. This road passes through the entire length of the proposed township. This proposed township has a mix of cultural and residential land use and it occupies an area of about 2700 acres. The town shall have a medical centre with a full-fledged hospital with centres for the study of various types of medical systems like Allopathy, E Ayurveda etc. it will also have a centre for religious studies with subcentres for all world religion and will accommodate special centre for the Vedic studies. Housing also forms the major component of this township. Township No. 6 xxx xxx xxx F Township No. 7 is in the near vicinity of Mysore City, about 3 km on its outskirts and about 1 km on the north of Kaveri River. It occupies an area of 4010 acres. The township is designed for Ecotourism and all facilities have been provided to meet this target. G This is the township of contrasts. It will have an Amusement Park, Golf Course and hotels with some residential neighbourhoods. A town centre with commercial, public buildings and other necessary infrastructure facilities is provided. All these townships together provide for necessary infrastructure support required in this region for perspective requirements.

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 835 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

The townships will be developed in line with modern town planning practices. Special consideration should be shown while detailing open spaces parks and greens. Special attention is to be given to Agricultural Zone and the Agriculture University where uses like agriculture, horticulture farming, chilling centers, farm houses and accessory buildings will be planned. B Since the detailed layout and architectural control & drafting zoning applicable norms is not within the scope of this report, this is not attempted; also it is an exclusive work, which has to be handled separately. However there are certain points which have links with land use planning and which need to be considered in development planning. They are listed below. C

1. Road hierarchy has to be planned to avoid main traffic in a subcity going through residential areas.

2. Wind Rose is to be kept in view while treating high rise buildings vs. low rise buildings. D

3. Continuous green may be attempted to allow minimum public use of motorised transport – encourage cycle or pedestrian movement.

4. All high rise buildings to be on wide roads only. E

5. Drainage and greens to be integrated

6. Low rise buildings to be attempted to harmonize with environment

7. Energy savings should be an important criterion while detailing architectural plans. F

8. Local zoning to ensure a low noise environment for schools, hospitals, and residences.” (emphasis supplied)

40Copy pinpoint40. The project report (PTR) was deliberated and eventually G 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 H

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A approved by the Government in larger public interest. The relevant recitals read thus: - “W I T N E S S E T H WHEREAS, Bangalore and Mysore are the fastest developing cities in the State of Karnataka and are leading centres for industry, trade and commerce, simultaneously attracting tourists from all over the world; WHEREAS, the traffic intensity between Bangalore and Mysore has been very high and will continue to increase with further growth of industry, trade, commerce and tourism in such cities and in the State of Karnataka; WHEREAS, in order to ensure smooth and accident- free traffic between Bangalore and Mysore, an expressway between the two cities is proposed;

D WHEREAS, in light of the ever-increasing urbanisation problems and in an effort to achieve the orderly development of Bangalore as a major industrial commercial and residential city. GOK has proposed to promote an integrated infrastructure corridor situated between Bangalore and Mysore, Karnataka, consisting of E 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 F Project Technical Report, dated August 1995, as amended (collectively, the “Infrastructure Corridor”); WHEREAS, GOK has been consistently attempting to attract on agreeable terms a consortium to industrially and commercially develop the Infrastructure Corridor in accordance with the vision of GOK; G WHEREAS, the Kalyani Group, SAB Engineering and Construction Inc., and Vanasse Hangen Brustlin Inc. (collectively, the “Consortium”) and GOK entered into a Memorandum of Understanding dated 20 February, 1995 relating to the further consideration of the industrial and commercial development of H

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the Infrastructure Corridor by the Consortium (the “Memorandum A of Understanding”); WHEREAS, GOK, upon review, assessment and consideration of the Infrastructure Corridor Project Technical Report dated August – 1995 prepared by the Consortium, as amended by the Government Order (defined below) and the Annexure thereto B (the “Infrastructure Corridor Project Technical Report”) is satisfied that the interests of the State of Karnataka would be best served if the Infrastructure Corridor is industrially and commercially developed as contemplated by the Infrastructure Corridor Project Technical Report inasmuch as such development would promote industrial, commercial and economic growth in C the State of Karnataka generally and in Bangalore and Mysore and the Infrastructure Corridor specifically create new job opportunities for the residents in and around the Infrastructure Corridor, promote tourism, decongest traffic in Bangalore and Mysore, ensure smooth and safer traffic between Bangalore and D Mysore and provide a world-class expressway between the two cities; WHEREAS, GOK issued Order No. PWD 32 CSR 95 dated 20 November 1995 (the “Government Order”) authorizing the development of the Infrastructure Corridor by the Consortium E as contemplated by the Infrastructure Corridor Project Technical Report; WHEREAS, GOK has consented to and acknowledged the exercise by the Company of the Consortium’s rights under the Memorandum of Understanding and the Government Order F pursuant to a Consent and Acknowledgement Agreement dated 9th September, 1996 among the GOK and the members of the Consortium; WHEREAS, the Company has agreed to industrially and commercially develop the Infrastructure Corridor and G finance, own and/or operate such developments in the manner contemplated by this Agreement; WHEREAS, under the above recited premises, GOK has undertaken to extend to and provide the Company with the necessary governmental actions, cooperation and assistance and H

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A grant the Company rights required for the industrial and commercial development of the Infrastructure Corridor, including the services and businesses contemplated in Schedule 4, which GOK believes is in the best interests of the State of Karnataka and its citizens because, among other things, it will (i) promote industrial, commercial and economic growth in the Infrastructure B Corridor, the cities of Bangalore and Mysore and the State of Karnataka generally, (ii) create new jobs, (iii) provide the State of Karnataka a much needed world-class expressway between Bangalore and Mysore, (iv) create a counter-magnet to Bangalore city and (v) help in promotion and development of world-class tourism; and WHEREAS, the Company will assign its rights under this Agreement to the various Project Companies, each of which will develop, construct and finance part of the Infrastructure Corridor Project in a manner to be determined by the Company in accordance with this Agreement; NOW, THEREFORE, in consideration of the mutual premises, covenants and promises herein contained, the Company and GOK do hereby agree as follows:” (emphasis supplied) E Suffice it to observe that the underlying concern of the State was about the increasing urbanisation problems and to assuage the hardship caused on that account to the general public. The Project, as envisaged and finalised was intended to achieve the objective of orderly development of Bangalore as a major industrial, commercial and residential city. The Integrated Infrastructure Corridor (the Project) was to consist of residential, industrial and commercial facilities, amongst other things, self- sustaining townships, expressways, utilities and amenities including power plants, industrial plants, water treatment plants and other infrastructural developments, as envisaged in the PTR, as amended. The objective of the Project was also to ensure smooth and accident-free traffic between Bangalore and Mysore; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; decongest traffic etc.

41Copy pinpoint41. Notably, the PTR had suggested creation of seven Townships, but in the final decision, as noted in the FWA, only five Townships have H

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been approved as part of the Project being Townships 1, 2, 4, 5 and 7. A It was a conscious decision taken by the State to have limited number of self-sustaining Townships in the entire belt, so as to fulfil the National and State policy goals of population dispersion and to ensure proper functionality in the region. In other words, the FWA predicates that the Project Proponents will be allowed to develop only five Townships at the demarcated locations and which are self-sustaining with sufficient infrastructure for ensuring smooth and accident-free traffic on Bangalore-Mysore Expressway stretched to about 140 kilometres. Keeping that objective in mind, the stipulations and specifications in the FWA read with the relevant portion of the PTR will have to be examined. There is no room for giving liberal meaning to the stipulations and specifications which would inevitably defeat and frustrate the underlying objective of the Project - of orderly development of Bangalore City and to address the ever-increasing urbanisation problems.

42Copy pinpoint42. Be it noted that the FWA executed between the State and the Project Proponents delineates the nature of contract and the scope of work to be carried out by the Project Proponents, as per the terms and conditions specified therein. It is an integrated project not only for construction and management of Expressway, but also creation of Townships at the demarcated location(s) as per the specifications and area earmarked therefor. The “Infrastructure Corridor” has been defined as having the same meaning as set forth in the recital (4 th WHEREAS E 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 F PTR. “Townships” is, therefore, an identified and well-defined component of the “Infrastructure Corridor Project”. It has been defined as follows: - “”Townships” means the townships described as Townships 1, 2, 4, 5 and 7 in the Infrastructure Corridor Project Technical G Report which will be developed by the Company and/or the Project Companies for the industrial and commercial growth and other development of the Infrastructure Corridor, and the provision of roads, supply of water and electricity, street lighting, sewage, conservancy and such other conveniences and socio- H

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A economic infrastructure, inter alia comprising of housing schools, hospitals, shopping complexes, parks and open spaces as set forth in Schedule 4 attached hereto.” From this definition, it is amply clear that only five Townships (each having different purpose – such as Corporate Centre, Industrial B 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 C “Townships”, no doubt, includes housing, but a standalone group housing scheme cannot be regarded as a Township as such. The Townships would, however, comprise of not only housing, but also schools, hospitals, shopping complexes, parks and open spaces, as noted in Schedule 4, which reads thus: - D “SCHEDULE 4 Bangalore-Mysore Infrastructure Corridor Possible Business and Services

1. Power E Generation & Transmission Distribution & Metering

2. Water Purification & Transmission Distribution F Reservoirs

3. Sewage Collection & Treatment Recycling & Selling the water Selling by product

G 4. Tele-communication Transmission & Switching Distribution in township

5. Expressway toll facilities

H 6. Restaurants and Gas Pumps

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7. Interchange Plazas A

8. Hospitals

9. Schools Primary and High Schools Colleges

10. Hotels & Motels (Townships) B

11. Real Estate - Commercial - Industrial - Housing C - Municipal - Rental

12. Garbage

13. Cable TV D

14. Parking Authority

15. Entertainment - Golf Course E - Movie Theatres - Bars - Amusement Park

16. Marriage Mandaps F

17. Temples and religious activities

18. Convention and Exhibition Centres

19. Land Management

20. Industrial Plants G

21. Any other such business area which may emerge from time to time as permitted by law.” Besides Schedule 4, it may be appropriate to advert to Schedule 1, which deals with the total Land to be used for the Infrastructure Corridor Project. The bifurcation of the extent of land to be used for H

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A different activities, such as Toll Road and Township areas township-wise, is also specified. Schedule 1 reads thus: - “SCHEDULE 1 Land TOTAL TOTAL B PVT (Acres)

C TOTAL

The figures noted above are approximates.” To put it differently, the Project Proponents are obliged to construct the five Townships at the demarcated location(s) only and to the extent of land specified therefor. Any other proposal of the Project Proponents would be nothing short of deviation from the FWA in particular. It is not necessary for us to dilate on the essential specifications and components to constitute a Township. Suffice it to observe that the Project Proponents are obliged to construct housing in the area demarcated for Townships and ensure that the other socio-economic infrastructure components such as schools, hospitals, shopping complexes, parks and open spaces etc. are also provided for within the Townships. The construction of the essential components including housing, as expressly provided in the FWA, must also comply with the municipal laws governing such constructions. For, Schedule 2 F of the FWA reads as follows:- “SCHEDULE 2 Approvals The Company shall have received the required permissions, approval, sanctions and/or licences under the following acts and G rules of GOI and GOK:

1. Environment (Protection) Act, 1986 – Section 3(1) and Section 3(2)(v).

2. Environment (Protection) Rules, 1986 – Rule 5(3)(a); H

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3. Water (Prevention and Control of Pollution) Act, 1974 A – Section 25.

4. Air (Prevention and Control of Pollution) Act, 1981- Section 21.

5. Clearance and confirmation from GOK that the Land does not contain reserve forest under the Forest B (Conservation) Act, 1980 – Section 44 and Section 28.

6. Exemption under Section 20 of the Urban Land (Ceiling and Regulation) Act, 1976 for holding land in the site falling within the Urban Agglomerations. C

7. Declaration by GOK under the appropriate Act and formation of Greenbelt.

8. Karnataka Stamp Act, 1957 – Section 9 in respect of stamp duty payable on the amounts secured any by mortgage deeds executed in connection with the D Infrastructure Corridor Project.

9. Electricity (Supply) Act, 1948.

10. Consent of the Telegraph Authority under Section 4 of the Indian Telegraph Act, 1985 and Part V of the Indian Telegraph Rules for the provision of telecommunication E facilities.

11. Permissions approvals under the Foreign Exchange Regulation Act, 1973 for, Offshore borrowings and debt servicing. F Appointment of and payment to the foreign contractors. Purchase or lease of equipment supplies from abroad. Appointment of and payment to non- resident/foreign G consultants, advisors and experts. Consent to remit dividends to non-resident shareholders.

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A Consent for remittance to non-resident directors. Permission for creation of securities in favour of non-resident lenders.

12. Exemption under Section 9 of Karnataka Stamp Act for purchase of the Land. B

13. Rural Development and Panchayat Raj.

14. Applicable rules of the Irrigation Department of GOK.

15. Town & Country Planning Act, 1961.

16. Karnataka Land Revenue Act and Rules, 1964 and C 1965.”

43Copy pinpoint43. 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 D Project. But, that is required to be done only with prior written approval of the State. This is made amply clear by Article 7.1 of the FWA itself. Article 7 reads thus: - “ARTICLE 7. TOWNSHIPS. E 7.1 Development. Each of GOK and the Company acknowledges and agrees that the industrial and commercial development of the Townships by the Company is an integral part of the Infrastructure Corridor Project and its goal of increasing and promoting industry, trade, commerce and tourism in Bangalore, Mysore and the Infrastructure Corridor. Accordingly, GOK will F assist the Company in the manner contemplated herein so that the Company may develop the Townships in the manner described in the Infrastructure Corridor Project Technical Report and as authorised in the Government Order. The Company may deviate from the Infrastructure Corridor Project Technical G Report in the development of the Townships within the applicable law to the extent such deviation is required to enable the Parties to realize the full benefits intended from development of the Infrastructure Corridor Project and with prior written approval of GOK which approval shall not be unreasonably withheld by GOK. H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 845 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

7.2 Operation and Maintenance. GOK and the Company agree A that the Company shall have the right to operate the Townships. The Company and GOK shall enter into an agreement negotiated in good faith by each for the operation and maintenance and in accordance with applicable laws. Notwithstanding the previous sentence on the first anniversary of the Township B Completion Date, the Company shall transfer to GOK the assets relating to the Townships set forth in Schedule 5 and the right of way over the Land that may be required with respect to such assets, but not including any ownership interest in any part of the Land (the “Transferred Township Assets”) and shall assign the C administration of such Townships to GOK or a GOK Governmental Instrumentality designated by GOK, GOK shall pay to the Company the sum of Rs.1 for such Transferred Township Assets and shall assume all obligations relating thereto and to the administration of the D Townships. GOK shall contract with the Company to provide to the Townships after such assumption the utilities and amenities theretofore provided by the Company or its Affiliates or to be thereafter provided for which the Company shall receive reasonable compensation agreed to by the Parties in good faith negotiation. GOK will indemnify and hold harmless the Company E and its Affiliates and each of its and their respective directors, managers, officers, employees and agents from any and all expense, loss or claim relating to the Townships (or any assets or part thereof) and the administration, management and operation thereof arising in respect of any date on or after the F date of such possession and assumption. 7.2.1 Deliveries Upon Transfer. Each Party shall deliver to the other Party all documents and things necessary to effect the transfer set forth above, including (i) the delivery by the Company of an agreement assigning and transferring the Transferred Township Assets, (ii) the delivery by G GOK of an agreement in which GOK assumes all obligations of the Company relating to the Transferred Township Assets and the administration, management, operation and maintenance of the Townships after the date of such assumption and releases in full the H

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A Company and its Affiliates from all liability relating to the Transferred Township Assets and such administration, management, operation and maintenance after such date and (iii) the delivery by GOK to the Company of Rs.1. B 7.2.2 Maintenance. In connection with the transfer contemplated by this Paragraph 7.2, GOK will offer to the Company the right to provide all utilities and amenities to the Townships on terms mutually agreed upon by the Parties. The failure of the Parties to mutually agree to the provision of any such utilities or amenities will entitle GOK to contract the provision of such utilities or amenities with a third party, GOK or a GOK Governmental Instrumentality on terms no more favourable then those offered by GOK to the Company. 7.3 Construction Responsibilities. The Company shall assure that its construction, development and maintenance obligations in relation to each Township shall be performed in accordance with the provisions of this Agreement. 7.4. Completion of the Townships. Within 30 days of the completion of the full industrial, commercial and other development, including the services and businesses contemplated in Schedule 4, of the Townships (including sale by the Company of those parts of the Townships intended to be sold as part of the development of the Townships), the Company shall deliver a notice in writing to GOK with regard to such completion (The “Township F Completion Notice”). The Company shall specify in such Township Completion Notice the date on which full development of the Townships was completed (the “Township Completion Date”). The parties understand that the Company will develop the Infrastructure Corridor Project in a coordinated manner in accordance with the terms of this Agreement and that work at anytime may be conducted on all or any part of the Land with respect to the Toll Road, the Townships, the Water Supply Facilities, the Telecommunication Facilities, the Power Plants and the utilities and other supports ancillary thereto in furtherance of the Infrastructure Corridor Project. The basic infrastructure for the Townships will be substantially completed (i.e.

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 847 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

minimal reasonable facilities that enable some people to be able to live in the Townships shall have been completed) within twelve (12) years from the date of the Toll Road Completion Notice. The Township Completion Date in no event shall be later than the date which is thirty (30) years from the date the Toll Road Completion Notice B as or should or would have been delivered pursuant to the provisions of Paragraph 6.6.2 and clause (iii) of Paragraph 6.6.3. 7.5 Warranties. The Company warrants to GOK that: 7.5.1 The Company will industrially and commercially develop the townships so as to promote the industry, trade, commerce and tourism in such Townships as intended by the Infrastructure Corridor Project Technical Report; 7.5.2 all the skill and care to be expected of a professionally qualified and competent designer experienced in work of similar nature and scope as that required in connection with the development of the Townships will be exercised in the design of the Townships; 7.5.3 the developments in the Townships will, when completed, comply in all material respects with all applicable Laws of E India; 7.5.4 the Townships will be developed using proven up-to-date good practices which are consistent with applicable Laws of India; 7.5.5 no goods or materials generally known to be deleterious F or otherwise not in accordance with good engineering practice will be specified or selected by the Company or any one acting on its behalf and no goods or materials which, after their specification or selection by or on behalf of the Company but before being incorporated into the developments of the G Townships, become generally known to be deleterious or otherwise not in accordance with good engineering practice, will be incorporated into the development of the Townships; and

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A 7.5.6 it will obtain all necessary approvals from an appropriate GOKGovernmental Instrumentality with regard to the Technical Requirements for the Townships. 7.6 Execution of Documentation. GOK and the Company shall execute such agreements, Certificates, instruments and other documentation in order to give effect to the purposes of this Article 7.” (emphasis supplied)

44Copy pinpoint44. Article 3 deals with the obligations of the State for implementation of the Project referred to in the FWA. Much emphasis has been placed on Article 3.2.3, which postulates that the State will not restrict the use of the land in any way and the Project Proponents shall have full freedom and discretion to industrially and commercially develop and use the land. Article 3 reads thus: - “ARTICLE 3. OBLIGATIONS OF GOK D GOK covenants, agrees and undertakes that it shall perform, and shall cause its Governmental Instrumentalities to perform, each of the following obligations: 3.1. Approvals. E 3.1.1 GOK shall use its best efforts to grant, and cause its Governmental Instrumentalities, GOI and GOI governmental Instrumentalities to grant, all Approvals required in connection with the Infrastructure Corridor Project, including all Approvals listed on Schedule 2. F 3.1.2 GOK shall use its best efforts to dispose of, resist and resolve any obstacles or impediments created or placed by any Person to thwart or challenge any part of the Infrastructure Corridor Project. 3.2 Land G 3.2.1 GOK shall use its best efforts to, and cause its Governmental Instrumentalities to, promulgate, facilitate, initiate, advocate and/or amend to the full extent possible under the Laws of India any and all enactments, acts and legislation necessary or desirable to enable GOK or any GOK Governmental H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 849 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

Instrumentality to obtain, procure and/or transfer the Land to the A Company for the purposes set forth in this Agreement. 3.2.2. GOK shall authorise and take whatever other action that may be necessary for the use of any part of the Land and/or any other tract of land reasonably requested by the Company as a waste dump/disposal site for the waste generated by any of the Components of the Infrastructure Corridor Project during construction and development of the Infrastructure Corridor Project, all in accordance with applicable law. 3.2.3 GOK covenants that it will not restrict the use of the Land in any way and that the Company shall have full freedom and discretion to industrially and commercially develop and use the Land, as generally contemplated by this Agreement except that GOK shall zone and rezone, and shall cause to be zoned and rezoned, all Land in a manner consistent with its intended use in the Infrastructure Corridor Project as contemplated by this D Agreement or as reasonably requested by the Company, all in accordance with applicable law. 3.2.4 GOK covenants that upon transfer of the Land as contemplated hereby, the Company will have good, valid, clear and marketable title to the Land and all buildings, structures and E other improvements thereon, free of any Encumbrances, GOK will indemnify and hold harmless and the Company and its Affiliates and their respective directors, managers, officers, employees and agents from any and all expenses, loses or claims relating to the use or ownership of such Land by the Company F or any project Company in the manner contemplated herein. 3.2.5 Company shall request and GOK shall use its best efforts to cause GOK Instrumentalities to, remove in the most expeditious manner possible any person that trespasses or encroaches on any part of the Land or any right of the Company hereunder and shall G take all other action reasonably requested by the Company to permit the Company to fully enjoy its rights thereon or thereto and to develop the Land in the manner contemplated in this Agreement.

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A 3.2.6 GOK covenants that it shall provide all assistance reasonably requested by the Company with respect to clearance and preparation of the Land for development in the manner contemplated herein. .....” B (emphasis supplied) Considering the fact that the State is obliged to facilitate the Project Proponents to deviate from the PTR specifications adopted in the FWA for the development of Townships, that does not mean that the Project Proponents will set up housing complex at location(s) other than those demarcated for five Townships including not providing for other components of Townships in the proposal or limit the proposal only to one component, such as housing and excluding the other mandatory components - schools, hospitals, shopping complexes, parks and open spaces etc. Such interpretation cannot be countenanced and if accepted, it would inevitably defeat the very purpose of the well- defined project intended to address the increasing urbanisation problems and for orderly development of Bangalore City including smooth and accident-free traffic between Bangalore and Mysore Expressway.

45Copy pinpoint45. The next question is: whether the stipulations and specifications in the FWA regarding the scope of work and the application of both parties stood modified or altered due to supplementary agreements dated 6.10.1999 and 31.3.2000? Even on a fair reading of these agreements, we find that there is no express clause therein which would alter the scope of work and the obligations of both parties regarding the setting up of five self-sustaining Townships only at the demarcated location(s). The supplementary agreements, however, deal with other aspects with which we are not concerned nor are the same relevant to decide the matters in issue. Similarly, the Tripartite Agreement dated 9.8.2002 between the State, NICE and NECE also does not alter or modify the stipulations and specifications for setting up of five self-sustaining Townships only at the demarcated locations. The High Court has placed emphasis on clause 1.1.3 of the Tripartite Agreement, which reads thus: - “1.1.3 Stage 1 of the Infrastructure Corridor shall mean (a) Toll road (Section -A) H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 851 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

(b) Acquisition of the land and such rights, title and interests therein as may be necessary for the above-mentioned roads and development and sale of land. (c) Basic development and sale of land, including that at ten (10) interchanges and Township-1" We fail to understand as to how this clause can be construed to mean that the original stipulations and specifications regarding the five designated Townships in the FWA stood modified or altered in any manner. This clause only deals with the meaning of “Stage 1 of the Infrastructure Corridor”. Indeed, clause (c) thereof refers to Township– 1, but that reference is in the context of basic development and sale of land, and by no stretch of imagination, can be construed to mean that Township–1 (Corporate Centre) could be set up at any other location much less at intersections demarcated in the PTR. The purpose of intersections is to provide for free flow of traffic across the area. All the five Townships referred to in the PTR are indisputably far away from intersections. Despite that, the Project Proponents have proposed for group housing scheme in Section A of the Project at intersections 5/7 thereat on the peripheral road. This is notwithstanding the fact that even the Tripartite Agreement does not modify the location(s) and specifications for the Townships referred to in the PTR, which forms part of the FWA. E

46Copy pinpoint46. The thrust of the argument of the Project Proponents is that housing is a permitted usage, in terms of the ODP/Master Plan. For, the area for which the proposal for group housing scheme had been submitted is within yellow zone/residential zone. The question is: whether the Project Proponents can rely solely on ODP/Master Plan, notified by the Planning Authority in exercise of statutory function as a Planning Authority (for the entire area including the Project area)? The ODP/ Master Plan, no doubt, would apply and must be reckoned if any building proposal/plan is submitted to the Planning Authority. However, the Project Proponents are obliged to develop the Project only in the manner provided for in the FWA. For, the right to develop the Project bestowed on the Project Proponents flows, primarily, from the FWA and the supplementary agreements in that regard. Unless the FWA enables the Project Proponents to set up Townships at location(s) other than location(s) for five Townships demarcated in the FWA read with PTR and as standalone group housing scheme, the question of Project H

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A 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 B 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).

47Copy pinpoint47. To put it differently, the zone specified in the ODP/Master Plan per se is not enough to allow the Project Proponents to unilaterally use the land made over to them after acquisition from private land owners for the Project, for purpose and manner other than specified in the FWA and the PTR.

48Copy pinpoint48. Much emphasis was placed on the order dated 3.11.2009 passed by this Court in Contempt Petition (C) No. 144/2006 and connected contempt petitions in Civil Appeal Nos. 3492- 3494/2005 and connected appeals to contend that the Planning Authority and the State were obliged to allow the Project Proponents to complete the Project E and also permit them to use the land allotted to them, as per the alignment specified in the ODP/Master Plan dated 12.2.2004. The said order dated 3.11.2009 reads thus:- “We have heard the learned counsel for the parties on the Contempt Application. F After hearing the learned counsel for the parties and after going through the materials on record and the application for Contempt, we are of the view that pending final disposal of the Contempt proceeding, the following order may be passed: - By a final Judgment, this Court directed the State/respondents G to implement the Bangalore-Mysore 1 Infrastructure Corridor Project. Unfortunately, the said project has not yet been implemented by the State/respondents. On 4th of February, 2009, when this Contempt proceeding was taken up for hearing by this Court, Mr. G. E. Vahanvati, learned Solicitor General of India (as he then was) appearing for the State, stated before the Court H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 853 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

that the State Government has decided to implement the A Judgment of the High Court of Karnataka, as upheld by this Court, and needs time for implementation of the decision. Unfortunately, in spite of such submission made by the learned Solicitor General of India (as he then was), we are informed that the project has not yet been implemented. While some argument was advanced by the learned counsel for the parties and the Advocate General of the State, who is present today in Court, who submitted before us that the State has already taken all steps to implement the project and in fact, some lands have already been allotted to the applicants. Since the learned Advocate General of the State submitted that all possible steps have been taken to implement the project and to act in compliance with the Judgment of this Court, we direct that the 2 State Government shall constitute a Committee to be headed by the Chief Minister of Karnataka for the purpose of implementation of the project in question, which will submit a report by 22nd of November, 2009 as to allotment and possession of lands for completion of the project and such steps can be taken within the time that may be mentioned in the report and the project shall be allowed to be completed as per the alignment specified in the Outline Development Plan dated 12th of February, 2004 issued by the Bangalore Mysore Infrastructure Corridor E Area Planning Authority as per the Town and Country Planning Act. Let this matter be placed for further orders on 26 th of November, 2009 at 3.30 PM.” (emphasis supplied) F

Indisputably, these contempt petitions were in reference to the order passed by this Court on 20.4.2006 in Civil Appeal Nos. 3492-3494/ 2005 and connected appeals. Those appeals were against the decision of the High Court, which had considered two questions posed before it, as noted in paragraph 21 of the reported judgment in All India G Manufacturers Organisation (supra). The same reads thus: - “21. The High Court in the impugned judgment (vide para 18) raised the following two questions for consideration in the three writ petitions: H

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A “(1) Whether the FWA entered into between the Government of Karnataka and Nandi was a result of any fraud or misrepresentation as alleged by J.C. Madhuswamy and others and the State Government? (2) Whether any excess land than what is required for the B Project had been acquired by the State Government and whether it is open to it to raise such a plea?”” The High Court allowed the writ petitions and directed the State and all its instrumentalities, including the KIADB to execute the Project as conceived originally and to implement the FWA in its letter and spirit. C That direction was the subject matter of assail by the State on the ground that the direction amounted to mandamus to specifically perform the FWA, which is extremely complex contract. At the same time, the State had contended that the Project was vitiated by fraud, misrepresentation and mala fide. However, the latter plea was given up before this Court as noted in paragraph 24 of the reported judgment. D

49Copy pinpoint49. The fact remains that the original proceedings in the form of writ petitions were filed as public interest litigation before the High Court, challenging the Project in question, the stipulations in the FWA and because in the garb of the Project, acquisition of excess land was resorted to by the State, which would eventually result in undue profiteering by Project Proponents. In our opinion, neither the judgment rendered in appeal by this Court in All India Manufacturers Organisation (supra) nor the observation found in the order dated 3.11.2009 will be of any avail to the Project Proponents. For, the Court was not called upon to adjudicate the question even indirectly, as to whether the subject proposal for setting up of group housing scheme could be proceeded directly before the Planning Authority just because it is in conformity with the ODP/Master Plan and even though it is proposed at a location different than the demarcated location(s) for the five Townships in the FWA read with the PTR. No such plea was raised by the Project Proponents. In other words, none of the Court G orders referred to by the Project Proponents had examined the questions/issues involved in these appeals.

50Copy pinpoint50. 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 H Nos. 17(P), 18, 19, 20/1, 20/3, 21/1(P), 21/2A2(P), 21/2B(P), 21/2C(P),

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 855 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

21/2D(P) and 21/2E(P) at village Kommagatta, Kengeri Hobli, A 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 B from the stipulations and specification contained in the FWA read with the PTR; and to relax or modify the same, prior permission of the State is made mandatory in terms of the Article 7.1. For that reason, the Planning Authority had informed the Managing Director, NECE vide letter dated 28.5.2012 to obtain NOC from the concerned authorities. The same reads thus: - C “BANGALORE MYSORE INFRASTRUCTURE CORRIDOR LOCAL AREA PLANNING AUTHORITY OFFICE OF THE DIECTOR FOR TOWN PLANNING, P.B. NO.5257 M.S. BUILDING, GATE NO.4, D DR. B.R. AMBEDKAR VEEDHI, BANGALORE 560001 No. BMICAPA/339/ProaPraPa/541/2011-12 Dated: 28.05.2012 The Managing Director M/s Nandi Economic Corridor Enterprises Limited Midford House. Midford Garden, E M.G. Road, Bangalore-540001. Sir, Sub: Regarding approval for construction of Group housing in the land measuring 53 acres 05 guntas in Sy. No.17 Part, 18, 19, 20/ F 1, 20/3, 20/4, 21/1 part, 21/2A1 part, 21/2A2 Part, 21/2B part, 21/2C Part, 21/2D part and 21/2E Part of Kommaghatta Village, Kengeri Hobli, Bangalore South Taluk. Ref.: Your request date: NECE/05/170 dated 05.05.2012 with reference to the above subject, on verification of the proposal submitted in the letter at reference above, the following defects G are noticed.

1. Submit Survey sketch Prepared by the taluk Surveyor and certified by the Tahsildar showing the proposed land, existing road connection, adjacent survey numbers, Karab land. H

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A 2. Submit No Objection Certificate from the Project Co-Ordinal or – BMICP, KIADB (BMICP), P.W.D. with regard to Provision for this proposal as per the FWA’ entered into between Government and NICEL.

3. Submit No Objection Certificate from KSPCB, BWSSB, B Environment Pollution Department and BESCOM relating to the proposed lands.

4. Submit Detailed Project Report relating to the proposed lands.

5. Submit No objection Certificates from Fire Department, C Airport Department and BSNL relating to the proposed lands.

6. Submit on affidavit stating therein that no disputes or cases relating to the proposed lands are pending in the courts. D The above documents have to be submitted within 7 days of receipt of the above letter, failing which your representation will be rejected and will be kept in abeyance. Yours faithfully, E Sd/- Additional Director for Town And Country Planning and Member Secretary BMICAPA Bangalore.” F In response to the above noted communication, the NECE vide letter dated 6.6.2012, wrote to the Member Secretary of the Planning Authority. The said letter reads thus: - “NANDI ECONOMIC CORRIDOR ENTERPRISES LIMITED G Registered Office: 1, Midford House, Midford Garden, Off. M.G. Road, Bangalore – 560001, INDIA Telephone: (80) 2555 9819, 2559 5252 Fax: (80) 2555 9998 Email : nandi@nicelimited.com

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 857 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

Ref: NECE/06/211 A Dated: June 6, 2012 Without Prejudice The Member Secretary, Bangalore Mysore Infrastructure Corridor Area Fanning Authority, B Office of the Director of Town and Country Planning, P.B. No. 5257, Gate No.4, M.S. Building, Dr. B.R. Ambedkar Veedhi, Bangalore-560 001 Sir, C Sub: Approval for Group Housing Scheme in 42-08G in Sy. Nos. 17(P), 18, 19, 20/1, 20/3, 21/1(P), 21/2A1(P), 21/2A2(P), 21/ 2B(P), 21/2C(P), 21/2D(P) and 21/2E(P) of Kommaghatta Village, Kengeri Hobli, Bangalore South Taluk. Ref.: 1) Your Letter No. BMICAPA/339/Pra.Pra/1541/2011-12 D dt. 28th May 2012 2) Our Letter No. NECE/05/170, dated 5th May 2012. With reference to your above letter, we furnish the following clarifications/documents to the queries raised by you therein: E

1. We are submitting an original survey sketch prepared by the Taluk Surveyor and duly attested an authenticated by the Tahsildar, Bangalore South Taluk. The survey sketch clearly shows the existing bridge, road, kharab land and the relevant survey numbers surrounds, the land for which your approval is now sought.

2. Your second query requesting us to provide “No Objection Certificate” from the Authorities referred above would be once against breach of terms of understanding of the Framework Agreement since it can be clearly seen from the sale deeds executed by the KIADB transferring title of the above survey numbers, photocopy of which have already been submitted to you, we are, the absolute owners of the land in question without any restrictions/limitations on the use of the land. This is in conformity with the FWA where under the State Government has agreed H

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A that it will not restrict use of land in any manner and we shall be fully entitled at our discretion to industrial and commercially develop the land. We reproduce below for you ready reference clauses 3.2.3 and 3.8.3 of the FWA which read as follows: 3.2.3 GOK, covenants that will not restrict the use of the Land B in any way and that the Company shall have full freedom and discretion to industrially and commercially develop and use the land as generally contemplated by this Agreement except that GOK shall come and rezone, and shall cause to be zoned and rezoned, all Land in a manner consistent with its intended use in the Infrastructure Corridor Project as contemplated by this C Agreement or as reasonably requested by the Company, all in accordance with applicable law. 3.8.3 GOK understands that each of the components of the Infrastructure Corridor Project is an integral part of the Industrial and commercial development of the Infrastructure D Corridor ma manner designed and calculated to maximize the full industrial and commercial growth, potential and quality of life in such corridor. Accordingly, GOK shall use its best efforts to cause land of appropriate width from the outer boundaries of the entry and exist points (rampways interchanges) of the Toll Road the outer boundaries of each of the Townships, each as identified by the Company, not to be rezoned for use other than for farming (such area being called herein the “Greenbelt”). The appropriate width referred to in the immediately preceding sentence shall be determined by the appropriate Local Planning Authority. In the event an area to be included in the Greenbelt is on the date hereof already developed, GOK shall not be required to rezone such land for the Greenbelt, GOK acknowledges and agrees that the Greenbelt will protect and buffer the Toll Road and the Townships from unfettered and uncontrolled development which would cause irreparable harm to the Toll Road and the Townships and undermine the goals and purposes of the infrastructure Corridor Project contemplated hereby and that in the event of breach of this Paragraph 3.8.3 no adequate namely, would exist and damages would be difficult to measure and accordingly, the Company shall be entitled to Injunctive H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 859 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

relief for specific performance pending resolution of any A Dispute involving the provisions of this Paragraph 3.8.3. In the event any Person attempts to use the land designated for the Greenbelt for purposes other than farming, the Company may in its sole discretion take any and all steps it deems necessary or required, including the initiation of legal action B against such Person, to step or prevent such unauthorized use. GOK shall support to the full extent possible under applicable law such efforts of the Company to stop and prevent such unauthorized use. However, violation of the Greenbelt by third parties shall not constitute a GOK Event of Default. As you are aware, FWA has been upheld by the Hon’ble High C Court of Karnataka in its judgments dated 21.09.1998 and 03.05.2005 and the Hon’ble Supreme Court in its judgment dated 20.04.2006 has affirmed the judgment dated 03.05.2005 passed by the Hon’ble High Court of Karnataka. The legal position emerging from the reading of FWA and the D rulings of the Hon’ble High Court of Karnataka and the Hon’ble Supreme Court of India clearly shows that our Company has absolute and full power and authority to develop the land, commercially and industrially, subject, however, to the ODP and the zoning regulations. As such, the question of obtaining No E Objection Certificate (NOC) or any other form of consent from the State Government would not arise.

3. The NOC’s obtained from BSNL, Airport and BWSSB and the acknowledgments for having applied to KSPCB, BESCOM and Fire Force and enclosed herewith. F

4. The NOC’s from KSPCB, BESCOM and Fire Force will be submitted immediately after their receipt.

5. The detailed Project Report is enclosed.

6. You have requested to submit an Affidavit Stating that G “no law suits” are pending in any of the courts with regard to the subject lands. We would like to state that we have already submitted the original copy of the Affidavit along with the letter cited at reference (ii) copy of which is enclosed. H

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A In addition to this, a true copy of the learned Advocate General’s opinion dated 24.12.2011 furnished by in to the Planning Authority in response to the reference in this behalf obtained by us under the provisions of the Right to Information Act is enclosed for your ready reference. B This is for your kind information and further needful action in the matter. Thanking you Your faithfully, For Nandi Economic Corridor Enterprises Limited, C Sd/- Authorised Signatory”

51Copy pinpoint51. 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 D of change in land use and approval of residential developments, prior decision of the Empowered Committee should be obtained. The said communication reads thus: - “LoE 114 CRM 2013 Secretariat, Government of Karnataka E Vikasa Soudha th Bangalore, Dated 19 December, 2013 From Principal Secretary Government of Karnataka Public Works, Ports and Inland Water Transport Department F Bangalore. To Member Secretary Bangalore-Mysore Infrastructure Corridor Area Planning Authority, Multi-storeyed Building, G Bangalore-1 Sir, Sub: Re: Furnishing of documents and opinion as sought for by the authority with respect to the BMICP project. H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 861 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

Ref: 1. Your letter No. BMICAPA: 339:PraPra A P:1541:2011-12 dated 17.07.2012

2. Your letter No.BMICAPA:145:Bhu.U.B:519:2011-12 dated 18.08.2011 and 12.04.2012

3. Your letter No.BMICAPA:371:Design:1629:2010-11 dated 12.08.2011 and 12.04.2012 B

4. Your letter No.BMICAPA:81:Bhu.U.B:422:2011-12 dated 12.08.2011, 07.09.2011 and 09.04.2012

5. Your letter N o . B M I C A PA : 8 0 : R e s i d e n t i a l Plan:421:2011-12 dated 12.08.2011, 04.11.2011 and C 14.12.2011

6. Your letter N o . B M I C A PA : 7 9 : R e s i d e n t i a l Design:420:2011-12 dated 12.08.2011

7. Letter No.BMICAPA:Yo Sa:29:Information:2013-14 dated 23.09.2013 of Shri B. Mahendra, Member D Secretary, BMICAPA, Bangalore. The Cabinet in its meeting on 30.08.2007 with respect to the subject matter as mentioned above while referring to Article 1.1.3 of the Tripartite Agreement entered into between M/s. NICE, M/s. NECEL and the Government of Karnataka on 09.08.2002 E while referring to clauses in the said agreement namely (c) basic development and sale of land including that at ten (10) interchanges and Township 1 as follows- (iii) NICEL or anyone who is implementing the BMICP shall not be entitled to sell/alienate any portion of the land in the F interchanges/road portion of the BMICP. Necessary steps be taken by the concerned department to cancel the agreement dated 09.08.2002 between NICE and the Government of Karnataka insofar as it introduces clause for sale of land in Para 1.1.3 or elsewhere in the agreement. G Apart from that, the judgments rendered in the context of implementation of the project by the High Court of Karnataka and Supreme Court mandate execute the project as conceived originally and upheld in Somashekar Reddy’s case and to implement the FWA in letter and spirit. The clauses in the H

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A Tripartite Agreement dated 09.08.2002 which are in contradiction with the FWA are to be ignored. Further, the agreement dated 09.08.2002 is to be limited to assignment only. The PTR submitted by M/s NICE is a prominent part of the FWA and the project will have to be implemented in accordance with the Technical Report. As per the definition of Toll Road and Township in the FWA which is reproduced below, the Toll Road is to be specifically restricted to Toll Road as defined. Further, for the residential and commercial development, Township has been separately provided for and in such Township, different commercial and residential plans being provided, the same are to be implemented in accordance with the rules. “Toll Road” means the portion of the infrastructure corridor project consisting of Phase I Road, Phase II Road, Phase III Road, Phase IV Road, Phase V Road, Phase VI Road, the Bangalore Feeder, the Mysore Feeder, Link Road and the Outer D Peripheral Road collectively; “Townships” means the townships described as Township 1, 2, 4, 5 and 7 in the Infrastructure Corridor Project Technical Report which will be developed by the company and/or project companies for the industrial and commercial growth and other development E of the infrastructure corridor and the provision of roads, supply of water, and electricity, street lighting, sewage, conservancy, and such other conveniences and socio- economic infrastructure, inter alia, comprising of housing, schools, hospitals, shopping complexes, parks and open spaces as set forth in Schedule 4 attached hereto. F M/s. NICE has completed the Peripheral Road and Link Road. However, with respect to the facilities that are necessary for drivers of vehicles being plied on such road, such as petrol bunks, service stations, and truck terminals, it is noticed that till date none of these facilities have been provided for. G In the light of the above points, before any decision is taken with respect to change in land use and approval of residential developments, the pros and cons will have to be placed before the Empowered Committee constituted under the FWA and decision be obtained from it. I have been directed to inform you accordingly. H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 863 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

Approved by the Principal Secretary PWD A Yours sincerely, Sd/- N. Mahalakshamma Project Coordinator (BMICP), Public Works, Ports and Inland Water Transport Department” B (emphasis supplied)

52Copy pinpoint52. The fact remains that Article 7.1 of the FWA obliges the Project Proponents to submit proposal to the State for approval in case of any deviation. No such proposal was submitted to the State. Instead, the Project Proponents pursued the matter directly with the Planning C Authority. In that sense, prior approval of the State for deviating from the FWA and in particular constructing housing complex at location other than demarcated for Townships, is not forthcoming. Admittedly, no such approval was taken. If such proposal was to be submitted to the State, it would be open to the State to examine the same on its own or refer D the matter to the Empowered Committee constituted for resolving such issues, as envisaged in Article 4 of the FWA. Article 4 reads thus: - “ARTICLE 4 EMPOWERED COMMITTEE 4.1 Empowered Committee. E 4.1.1 Composition and Actions of Empowered Committee GOK represents and warrants that it has established a committee (the “Empowered Committee”) which consists of Chief Secretary and other members whose postings and titles are as set forth in Schedule 6 attached hereto. In the event of a vacancy on the Empowered Committee, GOK shall fill F such vacancy with a similarly titled person from the same GOK governmental Instrumentality. The Empowered Committee shall meet only after convening a duly called meeting and providing seven (7) Days prior written notice to the Company so that the Company may make available to such G Committee a Company representative to answer any questions that the Empowered Committee may have and to update the Company on actions taken by such Committee. 4.1.2 Committee Determinations Do Not Modify Rights or Obligations. The Parties acknowledge and agree that the H

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A rights and obligations of the Parties to this Agreement and the parties to any Project Contract shall be as set forth in this Agreement and such Project Contract and the Empowered Committee shall not have the authority to modify or alter such rights and obligations other than through a written agreement between the Parties hereto or the parties thereto. Subject to the foregoing, the Empowered Committee shall be the mechanism by which GOK will coordinate (with any necessary assistance from the Company) performance of its obligations under this Agreement, including to: 4.1.2.1 facilitate and expedite all Approvals required in connection with the Infrastructure Corridor Project at the state and local level; specifically, as the Empowered Committee consists of high level members from each of the affected ministries of GOK, it will act as the “single window co-ordination centre” with respect to the required clearance and permits; such committee shall also assist the Company in all means possible with regard to obtaining any and all Approvals required from GOK or any GOI Governmental Instrumentality; E 4.1.2.2 oversee GOK Governmental Instrumentalities compliance with the provisions of this Agreement. 4.1.2.3 serve as the information centre and clearinghouse for assembling and disseminating information with respect to the Infrastructure Corridor Project to GOK and the F GOK Governmental Instrumentalities and the public at large; and 4.1.2.4 serve as the primary intermediary on behalf of GOK and GOI and any Governmental Instrumentality thereof in connection with dealings between GOK and the Company.

G 4.1.3 Committee Pronouncements and Decisions. GOK, on behalf of itself and the GOK Governmental Instrumentalities, covenants that the Company may rely on the pronouncements and decisions of the Empowered Committee as pronouncements and decisions of GOK or the relevant GOK Governmental Instrumentality in connection with the Infrastructure Corridor Project and that such pronouncements and decisions shall be made by GOK or such

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 865 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

GOK Governmental Instrumentalities in an expeditions and timely manner. GOK understands and agrees that this is one of the primary purposes of setting up such Empowered Committee and that it will facilitate and expedite the realisation of the goals of the Infrastructure Corridor Project. 4.1.4 Committee Rights of Observation. GOK shall have the right, upon reasonable prior notice to the Company, through the Empowered Committee, to observe the progress of Infrastructure Corridor Project. The company shall assist GOK in arranging such visits. All persons visiting the Infrastructure Corridor Project site on behalf of GOK shall comply with all reasonable instructions, directions and safety requirements as prescribed by the Company or its contractors from time to time. GOK shall cause all such persons to comply with the Company Rules and Regulations regarding site safety and access, and in the event any such GOK employee or representative fails to comply with any reasonable requirements of the Company, GOK shall be exclusively liable for and shall indemnify, defend and hold harmless the Company against any and all damages, costs, claims, expenses and consequences arising out of such failure. Unless otherwise provided herein, such rights of GOK to visit the Infrastructure Corridor Project shall not be construed directly or indirectly as a contractual right of GOK to review, advise, recommend, approve or require changes.” (emphasis supplied) Indeed, the Empowered Committee is not a statutory committee, but it can be so constituted in terms of Article 4 read with Schedule 6, F consisting of high officials of the concerned departments. This is only to facilitate quick processing of the proposals and implementation of the Infrastructure Corridor Project with mutual understanding and due consultation wherever necessary. We may assume that the Empowered Committee may not agree with the proposal, as it may be of the view that the deviation is quite substantial and would disrupt the core objective G of the Integrated Infrastructure Corridor (the Project), which has been designed with purpose of holistic and orderly development of the region as a whole. In that eventuality, the Project Proponents would be required to resort to mechanism of resolution of disputes envisaged in Article 18 of the FWA, which reads thus: - H

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A “ARTICLE 18. RESOLUTION OF DISPUTES 18.1 Mutual Discussions. In the event of a Dispute, the Parties shall endeavour to resolve such Dispute by discussion in good faith in the first instance within thirty (30) days of Notice of such Dispute. B 18.2 Referral to the Expert. If any Dispute cannot be settled within such thirty (30) Day period and the Parties mutually agree in writing, such Dispute shall be referred to the Expert. If the Expert does not arrive at a decision within sixty (60) days or if either Party does not accept the decision of the Expert, then either C Party may, upon giving Notice to the other Party, refer the Dispute immediately for arbitration in accordance with Paragraph 18.3. …..”

53Copy pinpoint53. A priori, it must necessarily follow that the Project Proponents D cannot and ought not to have directly approached the Planning Authority for grant of stated permission in reference to the provisions in the KTCP Act or ODP/Master Plan. As aforesaid, if the proposal to be submitted by the Project Proponents was compliant with the stipulations and specifications given in the FWA read with the PTR, only then the Project E 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.

54Copy pinpoint54. Much emphasis was placed on the fact that the appellants had permitted the Project Proponents to construct housing complex at a location outside the demarcated area for the five Townships referred to in the FWA. Similarly, as the stated location was falling in yellow zone being residential, the other neighbouring private land owners were permitted to develop their property for housing complex. This argument does not take the matter any further for the Project Proponents, H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 867 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

inasmuch as the land in question has been allotted to the Project A 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 B the State in the manner other than specified in the FWA, being bound by the contractual obligations flowing from the FWA.

55Copy pinpoint55. 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, C 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 D 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.

56Copy pinpoint56. Reverting to the factum of assurance given by the Planning E Authority in the earlier round of writ petition(s) that the modified proposal/application dated 5.5.2012 will be considered in accordance with law and also that the State was party to that petition, in our view, it does not entail in acquiescence or waiver of the jurisdictional issue by the State (regarding necessity of seeking prior approval of Empowered Committee and No Objection (Certificate)/approval from the concerned State authorities). In that, the assurance given by the Planning Authority cannot come in the way of the State to urge that in law, the Project Proponents had no authority to develop the lands in question except as per the stipulations and specifications prescribed in the FWA read with the relevant clauses of the PTR. As a matter of fact, the earlier writ petitions were not decided on merits, but came to be disposed of leaving all contentions open, in lieu of the assurance given by the Planning Authority that it would consider the modified application as per law. In the present writ petitions, therefore, the State in the larger public interest is duty-bound to take a legal plea regarding H

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A 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.

57Copy pinpoint57. It is urged that this Court had held that it would be open to the Project Proponents to carry on construction work of housing on lands which are not falling within the Townships area, if the same were otherwise permissible under the ODP/Master Plan and the town planning regulations. This submission is founded on complete misreading of the observations in the decision of this Court in All India Manufacturers Organisation (supra). As noticed earlier, the lis before this Court including review petition(s) had arisen on account of the challenge to the FWA and also the acquisition of land for the purpose of the corridor project being excessive. Neither the High Court nor this E 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).

58Copy pinpoint58. Thus understood, the argument of the Project Proponents that F the plea taken by the State is hit by res judicata and in any case, by principles of constructive res judicata, cannot be countenanced. As a matter of fact, the Project Proponents did not pursue the plea of res judicata or of constructive res judicata before the High Court, as is evident from the points for consideration formulated by the High Court G in paragraph 9 reproduced in the earlier part of this judgment (in paragraph 22). Even if it can be considered as a question of law, in our opinion, the same does not arise in the fact situation of the present case.

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 869 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

59Copy pinpoint59. The Project Proponents had also placed reliance on the dictum of the High Court in S.M. Mohan Rao Nadgir vs. State of Karnataka & Ors.22, which, in our opinion has no bearing on the question that arises for our consideration. Paragraph 10 of the said decision as reproduced in the written submission filed by the Project Proponents, in fact merely sets out the factual matrix of that case and is certainly not an opinion of the Court answering the plea required to be adjudicated in the present appeals. Even the observation in Dakshinamurthy vs. B.K. Das, IAS & Ors.23, being an order passed in Contempt Petitions filed in Civil Appeal Nos. 3492-3494/2005 and connected appeals [decided on 20.4.2006, as reported in All India Manufacturers Organisation (supra)] will be of no avail to the Project Proponents. C The fact recorded that the Project shall be allowed to be completed as per the alignment specified in the ODP/Master Plan, as noted therein, has no bearing on the questions dealt with in the present appeals.

60Copy pinpoint60. Be it noted that the Project can be taken forward by the Project Proponents only in conformity with the stipulations and specifications in the FWA and the PTR. Additionally, the Project Proponents are also obliged to ensure compliance of ODP/Master Plan and if so complied, the Planning Authority cannot create any impediment. If the State accords approval to the deviation in terms of the FWA itself, the Project Proponents may be competent to carry on such a work. To put it differently, prior approval of the State for deviation from the stipulations and specifications in the FWA is the quintessence. We do not wish to burden this judgment with the argument about attitude of the concerned authorities in creating obstructions in completion of the Project because no official has been named in the writ petitions filed by the Project Proponents being responsible for that situation.

61Copy pinpoint61. The argument of the Project Proponents that the housing complexes can be constructed even at intersections by placing reliance on the observations in All India Manufacturers Organisation (supra), is begging the question. The issue is: whether it is open to the Project G Proponents to deviate from the stipulations and specifications of the FWA, in particular, in respect of Townships without prior approval of

22 Decided by the High Court on 28.2.2005 in Writ Appeal No. 72/2004 and connected writ appeals 23 (2010) 1 SCC 64 H

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A the State? The issue considered in the earlier rounds of litigation by this Court was on the basis of stand taken by the State to defend the Project, the FWA and the acquisition of land for the purpose of the project. In the present appeals, the matter is required to be examined in the context of the stand of the Project Proponents that they are free to carry on construction of housing scheme at any location of their choice even outside the demarcated location(s) for five Townships, stretched over about 140 kilometres of the expressway, in the FWA and the PTR.

62Copy pinpoint62. Reverting to the dictum in M. Nagabhushana (supra), the same will also be of no avail to the Project Proponents as it does not militate against the Planning Authority and State, in particular. As already noted, the State is competent to maintain its stand that the legal right of Project Proponents flows only from the terms and conditions specified in the FWA read with the PTR. That is a just plea available to the State and must be taken by it in the larger public interest to ensure that the objective of the Integrated Corridor Project (the Project) is not marginalised, undermined or frustrated in any manner. If development as desired by the Project Proponents on the stretch of 140 kilometres of the expressway is allowed, it would result in development in manner other than the one planned and conceived in the FWA and the PTR, the objective of which is to provide for holistic and orderly development of the self-sustaining Townships with all basic infrastructure and civic facilities and to ensure smooth and accident-free traffic between Bangalore and Mysore; population dispersal as per the National/State policy; to create new job opportunities for the residents in and around the Infrastructure Corridor; promote tourism; and decongest traffic etc.

63Copy pinpoint63. It is not necessary for us to dilate on other aspects regarding the efficacy of the FWA and the PTR or the other agreements executed between the parties, having held that it is for the State to consider the proposal for allowing the Project Proponents to deviate from the stipulations and specifications of the FWA and the PTR and until that G decision is taken by the State or its instrumentalities including the Empowered Committee constituted in terms of the FWA, the Planning Authority cannot process the proposal/application directly submitted to it by the Project Proponents. Further, such non-compliant proposal/ application submitted by the Project Proponents directly to the Planning Authority must be regarded as infirm, invalid and non-est in law. H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 871 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

64Copy pinpoint64. The next question is: whether the findings recorded by the A High Court for setting aside the reasons given by the Planning Authority in the impugned communication dated 7.2.2015, can be said to be the just approach of the High Court? In view of the conclusion reached by us hitherto, it is not necessary for us to dilate on the correctness of the view taken by the High Court in that regard. B

65Copy pinpoint65. Suffice it to observe that assuming the High Court was right in taking the view as it did to set aside the communication dated 7.2.2015, it was certainly not right in issuing mandamus to the Planning Authority to straightaway grant Commencement Certificate in respect of the modified proposal. The appropriate order that could have been passed by the High Court in such a situation after setting aside the communication dated 7.2.2015, would have been to relegate the Project Proponents before the Planning Authority for proceeding with this proposal in accordance with law and applicable regulations expeditiously after considering the other issues/points raised by the State. The Project Proponents would, however, rely on the exposition in paragraph 27 of the decision of this Court in Badrinath vs. Government of Tamil Nadu & Ors.24, which reads thus: - “27. This flows from the general principle applicable to “consequential orders”. Once the basis of a proceeding is gone, may be at a later point of time by order of a superior authority, any intermediate action taken in the meantime – like the recommendation of the State and by the UPSC and the action taken thereon – would fall to the ground. This principle of consequential orders which is applicable to judicial and quasi-judicial proceedings equally applicable to administrative orders. In other words, where an order is passed by an authority and its validity is being reconsidered by a superior authority (like the Governor in this case) and if before the superior authority has given its decision, some further action has been taken on the basis of the initial order of the primary authority, then such further action will fall to the ground the moment the superior authority has set aside the primary order.” Reliance is also placed on Section 15 of the KTCP Act, in particular, proviso thereto, which reads thus: - 24 (2000) 8 SCC 395 H

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A “15 - Permission for development of building or land.- (1) On receipt of the application for permission under section 14, the Planning Authority shall furnish to the applicant a written acknowledgment of its receipt and after such inquiry as may be necessary either grant or refuse a commencement certificate: B Provided that such certificate may be granted subject to such general or special conditions as the State Government may, by order made in this behalf, direct. (2) If the Planning Authority does not communicate its decision to the applicant within three months from the date of such acknowledgment, such certificate shall be deemed to have been granted to the applicant. Provided that the land use, change in land use or the development for which permission was sought for is in conformity with the outline development plan and the regulation finally approved under sub-section (3) of section 13. (3) Subject to the provisions of section 16, no compensation shall be payable for the refusal of or the insertion or imposition of conditions in the commencement certificate. (4) If any person does any work on, or makes any use of, any property in contravention of section 14 or of sub- section (1) of this section, the Planning Authority may direct such person by notice in writing, to stop any such work in progress or discontinue any such use; and may, after making an inquiry in the prescribed manner, remove or pull down any such work and restore the land to its original condition or, as the case may be, take any measure to stop such use. (5) Any expenses incurred by the Planning Authority under sub-section (4) shall be a sum due to such Authority under this Act from the person in default or from the owner of the land. G Explanation. -The power to grant necessary permission under this section for a change of user of land shall include the power to grant permission for the retention on land of any building or work constructed or carried out thereon before the date of the publication of the declaration of intention to prepare an outline H

BANGALORE MYSORE INFRA CORRIDOR AREA PLANNING AUTH. v. 873 NANDI INFRA CORRIDOR ENTERPRISE LTD. [A. M. KHANWILKAR, J.]

development plan under sub-section (1) of section 10 or for the A continuance of any use of land instituted before the said date. (6) Any person aggrieved by the decision of the Planning Authority under sub-section (1) or sub-section (4) may, within thirty days from the date of such decision, appeal to such authority as may be prescribed. B

(7) The prescribed authority may, after giving a reasonable opportunity of being heard to the appellant and the Planning Authority, pass such orders as it deems fit, as far as may be, within four months from the date of receipt of the appeal.” C (emphasis supplied) We are not impressed by this submission. The reported decision pressed into service does not go to the extent of justifying the direction issued by the High Court vide impugned judgment to issue Commencement Certificate. Indisputably, the question of issuing D Commencement Certificate would arise only if the Planning Authority was fully satisfied that the proposal/plan submitted by the Project Proponents is compliant in all respects in reference to the extant town planning rules and regulations. Moreso, because it is not a case where the Project Proponents were invoking the provision regarding deemed approval of the modified plan submitted on 5.5.2012. E

66Copy pinpoint66. As a result, we have no hesitation in taking view that the direction issued by the High Court in the impugned judgment, in any case, cannot be countenanced in law. But this question, if we may say so, has become academic for the view that we have already taken that the Project Proponents could not have directly approached the F 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 G 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.

67Copy pinpoint67. Taking overall view of the matter, we have no hesitation in allowing the present appeals filed by the Planning Authority and the H