Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
CASE NO.:
Appeal (civil) 4593 of 1999
PETITIONER:
The Printers (Mysore) Ltd.
RESPONDENT:
M.A. Rasheed & Ors.
DATE OF JUDGMENT: 05/04/2004
BENCH:
CJI, S.B. Sinha & S.H. Kapadia.
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
INTRODUCTION:
Validity of a sale deed dated 19.6.1985 executed by the
Bangalore Development Authority (hereinafter referred to as
’the Authority’) in favour of the appellant herein was
questioned by the first respondent before the High Court by
way of a public interest litigation which has been allowed
by reason of the impugned judgment.
FACTUAL BACKGROUND:
The appellant is a company incorporated under the
Companies Act engaged in printing and publishing of
newspapers and periodicals. For grant of allotment of a
suitable plot for establishing an industry, an application
was filed by it before the said Authority and upon
consideration thereof, a plot admeasuring 1 acre 20 guntas
under the Byrasandra-Travaekere-Madivala (BTM) was allotted
on a consideration of Rs.1,87,500/-. On the said amount
having been deposited by the appellant, a deed of sale was
executed in its favour by the authority on or about
29.6.1985. The appellant was also put in possession
thereof. A licence for fencing the property was also
obtained by the appellant.
In 1988, a public interest litigation was filed by the
First Respondent herein, inter alia, on the ground that the
impugned alienation was against public policy and, thus,
illegal and void having regard to the fact neither any
public auction was held therefor; nor any tender was called
for; nor any public advertisement for sale of the said land
was issued.
The contention of the appellant in the aforementioned
writ petition, inter alia, was that the said writ petition
in the nature of public interest litigation was in fact
filed by the First Respondent at the instance of one S.A.
Krishnappa who had been unsuccessful at earlier stages in
his attempt to stall the acquisition proceedings. It was
contended that one Mohd. Ibrahim had also filed a suit to
achieve the same purpose but it was dismissed. In the said
writ petition the locus of the writ petitioner was also
questioned.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
A learned Single Judge of the High Court allowed the
said writ application by an order dated 29.1.1996 holding
that the allotment in favour of the appellant herein by the
Authority being a bulk one, the same was contrary to the
provisions of the Bangalore Development Authority Act (for
short ’the Act’).
Aggrieved by and dissatisfied therewith, the appellant
preferred a Letters Patent Appeal. A Division Bench of the
High Court dismissed the same holding that establishment of
an industry cannot be termed as a step towards development
of the Bangalore Metropolitan Area. Noticing that under the
the Act three different sets of rules had been framed and
interpreting Section 38 thereof, it was held that the
provisions of the rules would govern the transfer of land.
SUBMISSIONS:
Mr. Shanti Bhushan, learned Senior Counsel appearing on
behalf of the appellant assailing the impugned judgment,
would submit that the High Court committed a manifest error
insofar as it failed to take into consideration that there
was no legal impediment for allotment of the land by the
Authority to the appellant for the purpose of setting up of
an industry for printing and publishing of newspapers. The
learned counsel would urge that the power to lease, sell or
otherwise transfer an immovable property having been
conferred on the Authority under the Act, no illegality can
be said to have been committed in transferring the land in
question in favour of the appellant. Establishment of an
industry for printing and publishing newspapers, it was
argued, comes within the purview of development of the
metropolitan area. Mr.Shanti Bhushan would urge that
Section 38 of the Act confers an unrestricted power to
lease, sell or transfer movable or immovable property for
the purpose of any development scheme.
Mr. S.N. Bhat, learned Senior Counsel appearing on
behalf of the first respondent, on the other hand, would
contend that the land in question having been earmarked for
housing, the same could not have been allotted in favour of
the appellant without any tender having been issued or
without issuing any advertisement therefor. The High Court,
Mr. Bhat would contend, has rightly set aside the allotment
made by the Authority in favour of the appellant having
regard to the provision contained in Section 38 of the Act.
Bulk allotment, the learned counsel would argue, is covered
by Section 38B of the Act which admittedly is not attracted
in the instant case.
STATUTORY PROVISIONS :
The said Act was enacted for the establishment of a
development of a Development Authority for the development
of the City of Bangalore and areas adjacent thereto and for
matters connected therewith.
’Development’ has been defined in Section 2(j) to
mean :
""Development" with its grammatical
variations means the carrying out of
building, engineering, or other
operations in or over or under land or
the making of any material change in any
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
building or land and includes
redevelopment’"
Chapter III of the Act provides for development
schemes. In terms of Section 15 of the Act, the Authority
may draw up detailed schemes for the development of
Bangalore Metropolitan Area and with the previous approval
of the Government undertake from time to time any works for
the Bangalore Metropolitan Area and incur expenditure
therefor and also for framing and execution of development
schemes. It is also entitled to take up any new or
additional scheme from time to time.
Sections 38 of the Act reads thus :
"38. Power of Authority to lease, sell
or transfer property.-Subject to such
restrictions, conditions and
limitations as may be prescribed, the
authority shall have power to lease,
sell or otherwise transfer any movable
or immovable property which belongs to
it, and to appropriate or apply any
land vested in or acquired by it for
the formation of open spaces or for
building purposes or in any other
manner for the purpose of any
development scheme."
Section 38-B of the Act provides as under :
"38-B. Power of Authority to make bulk
allotment. \026 Notwithstanding anything
contained in this Act or Development
Scheme sanctioned under this Act, the
authority may, subject to any
restriction, condition and limitation
as may be prescribed, make bulk
allotment by way of sale, lease or
otherwise of any land which belongs to
it or is vested in it or acquired by
it for the purpose of any development
scheme. \026
(i) to the State Government; or
(ii) to the Central Government, or
(iii) to any Corporation, Body or
Organisation owned or controlled
by the Central Government or the
State Government; or
(iv) to any Housing Cooperative
Society registered under the
Karnataka Cooperative Societies
Act, 1959 (Karnataka Act 11 of
1959); or
(v) to any society registered under
the Karnataka Societies
Registration Act, 1960 (Karnataka
Act 7 of 1960); or
(vi) to a trust created wholly for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
charitable, educational or
religious purpose:
Provided that prior approval of the
Government shall be obtained for
allotment of land to any category
listed above."
FINDINGS:
The first respondent in paragraph 3 of the writ
petition averred :
"...In the said Link Road, huge
Industrial Estates have come up and
potentiality of the acquired lands being
increased by leaps and bounds..."
The alienation of the land in question in favour of the
appellant herein, as noticed hereinbefore, was questioned
only on the ground that no auction was held nor any tender
therefor was called for and furthermore no public
advertisement was issued prior to making of the impugned
allotment. No contention had been raised in the writ
petition to the effect that the land could not be alienated
by the Authority for setting up of an industrial
undertaking. In fact, as noticed hereinbefore, the first
respondent in the writ petition accepted that huge
industrial area had come up as a result whereof the
potentiality of the acquired lands had been increased by
leaps and bounds. The thrust of the writ petition was,
thus, on legality of the acquisition of the land or amount
of compensation payable therefor.
The Division Bench of the High Court, in our opinion,
misconstrued and misinterpreted the provision of Section 38
of the Act. A bare perusal of the of the said provision
would demonstrate that the Authority has power to lease,
sell or otherwise transfer any movable or immovable property
belonging to it, subject to such restrictions, conditions
and limitations, as may be prescribed. The State of
Karnataka has framed three rules under the Act, namely, (i)
Bangalore Development Authority (Allotment of Sites) Rules,
1982; (ii) Bangalore Development Authority (Allotment of
Buildings under Self Financing Housing Scheme) Rules, 1982;
and (iii) Bangalore Development Authority (Disposal of
Corner Sites and Commercial Sites) Rules, 1984.
It is beyond any cavil that the provisions of the
aforementioned three sets of rules were not applicable to
the allotment in question. If the provisions of the said
rules are not applicable in the instant case, the question
of power of the Authority being restricted, conditioned or
limited in selling or otherwise transferring the property
would not arise.
In Surinder Singh Vs. Central Government and Others
[(1986) 4 SCC 667], it was held:
"6. The High Court has held that the
disposal of property forming part of the
compensation pool was "subject" to the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
rules framed as contemplated by Sections
8 and 40 of the Act and since no rules
had been framed by the Central
Government with regard to the disposal
of the urban agricultural property
forming part of the compensation pool,
the authority constituted under the Act
had no jurisdiction to dispose of urban
agricultural property by auction sale.
Unless rules were framed as contemplated
by the Act, according to the High Court
the Central Government had no authority
in law to issue executive directions for
the sale and disposal of urban
agricultural property. This view was
taken, placing reliance on an earlier
decision of a Division Bench of that
court in Bishan Singh v. Central
Government. [(1961) 63 Punj LR 75]. The
Division Bench in Bishan case [(1961) 63
Punj LR 75] took the view that since the
disposal of the compensation pool
property was subject to the rules that
may be made, and as no rules had been
framed, the Central Government had no
authority in law to issue administrative
directions providing for the transfer of
the urban agricultural land by auction
sale. In our opinion the view taken by
the High Court is incorrect. Where a
statute confers powers on an authority
to do certain acts or exercise power in
respect of certain matters, subject to
rules, the exercise of power conferred
by the statute does not depend on the
existence of rules unless the statute
expressly provides for the same. In
other words framing of the rules is not
condition precedent to the exercise of
the power expressly and unconditionally
conferred by the statute. The expression
"subject to the rules" only means, in
accordance with the rules, if any. If
rules are framed, the powers so
conferred on authority could be
exercised in accordance with these
rules. But if no rules are framed there
is no void and the authority is not
precluded from exercising the power
conferred by the statute."
In Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr.
[2004 (1) SCALE 224] this Court noticed:
"Subject to" is an expression
whereby limitation is expressed. The
order is conclusive for all purposes.
This Court further noticed the dictionary meaning of
"subject to" stating:
"Furthermore, the expression ’subject
to’ must be given effect to.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
In Black’s Law Dictionary, Fifth
Edition at page 1278 the expression
"Subject to" has been defined as
under :
"Liable, subordinate, subservient,
inferior, obedient to; governed or
affected by; provided that;
provided, answerable for. Homan v.
Employers Reinsurance Corp,., 345
Mo. 650, 136 S.W. 2d 289, 302"
Reliance placed by Mr. Bhat in K.R.C.S. Balakrishna
Chetty and Sons & Co. vs. The State of Madras [AIR 1961 SC
1152] is misplaced. In that case, an exemption provision
contained in Section 5 of the Madras General Sales Tax Act
was invoked which could be granted only subject to such
restrictions and conditions, as may be prescribed and in
that context it was held :
"...On a proper interpretation of the
section it only means that the exemption
under the licence is conditional upon
the observance of the conditions
prescribed and upon the restrictions
which are imposed by and under the Act
whether in the rules or in the licence
itself; that is, a licensee is exempt
from assessment as long as he conforms
to the conditions of the licence and not
that he is entitled to exemption whether
the conditions upon which the licence is
given are fulfilled or not. The use of
the words "subject to" has reference
to effectuating the intention of the law
and the correct meaning, in our opinion,
is "conditional upon.""
In the instant case, it would appear, that no
restriction, condition or limitation has been prescribed and
in that view of the matter, the High Court, in our opinion,
committed a manifest error in holding that the provisions of
the said rules would apply to any transfer made by the
Authority in favour of any person. A similar question came
up for consideration before this Court in Chairman & MD,
BPL Ltd. vs. S.P. Gururaja and Others [(2003 8 SCC 567].
This Court in that case examined in details the provisions
of the said Act vis-‘-vis the Karnataka Industrial Areas
Development Act, 1966. Therein also allotment of a peace
of land in favour of an industrial undertaking was in
question. The Court referred to a large number of decisions
including Guruvayoor Devaswom Managing Committee and Another
vs. C.K. Rajan and Others [(2003) 7 SCC 546] and held :
"Mr. Subba Rao referred to N.M. Thomas
(supra) for the proposition that court
is also a ’State’ within the meaning of
Article 12 but that would not mean that
in a given case the court shall assume
the role of the Executive Government of
the State. Statutory functions are
assigned to the State by the Legislature
and not by the Court. The Courts while
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
exercising its jurisdiction ordinarily
must remind itself about the doctrine of
separation of powers which, however,
although does not mean that the Court
shall not step-in in any circumstance
whatsoever but the Court while
exercising its power must also remind
itself about the rule of self-restraint.
The Courts, as indicated hereinbefore,
ordinarily is reluctant to assume the
functions of the statutory
functionaries. It allows them to
perform their duties at the first
instance.
The court steps in by Mandamus when the
State fails to perform its duty. It
shall also step in when the discretion
is exercised but the same has not been
done legally and validly. It steps in
by way of a judicial review over the
orders passed. Existence of alternative
remedy albeit is no bar to exercise
jurisdiction under Article 226 of the
Constitution of India but ordinarily it
will not do so unless it is found that
an order has been passed wholly without
jurisdiction or contradictory to the
constitutional or statutory provisions
or where an order has been passed
without complying with the principles of
natural justice. (See Whirlpool
Corporation Vs. Registrar of Trade
Marks, Mumbai and Others (1998) 8 SCC
1).
Exercise of self-restraint, thus, should
be adhered to, subject of course to,
just exceptions."
Dawn Oliver in Constitutional Reform in the UK under
the heading ’The Courts and Theories of Democracy,
Citizenship, and Good Governance’ at page 105 states:
"However, this concept of democracy as
rights-based with limited governmental
power, and in particular of the role of
the courts in a democracy, carries high
risks for the judges - and for the
public. Courts may interfere
inadvisedly in public administration.
The case of Bromley London Borough
Council v. Greater London Council
([1983] 1 AC 768, HL) is a classic
example. The House of Lords quashed the
GLC cheap fares policy as being based on
a misreading of the statutory
provisions, but were accused of
themselves misunderstanding transport
policy in so doing. The courts are not
experts in policy and public
administration - hence Jowell’s point
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
that the courts should not step beyond
their institutional capacity
(Jowell,2000). Acceptance of this
approach is reflected in the judgments
of Laws LJ in International Transport
Roth GmbH Vs. Secretary of State for the
Home Department ([2002] EWCA Civ 158,
[2002] 3 WLR 344) and of Lord Nimmo
Smith in Adams v. Lord Advocate (Court
of Session, Times, 8 August 2002) in
which a distinction was drawn between
areas where the subject matter lies
within the expertise of the courts (for
instance, criminal justice, including
sentencing and detention of individuals)
and those which were more appropriate
for decision by democratically elected
and accountable bodies. If the courts
step outside the area of their
institutional competence, government may
react by getting Parliament to legislate
to oust the jurisdiction of the courts
altogether. Such a step would undermine
the rule of law. Government and public
opinion may come to question the
legitimacy of the judges exercising
judicial review against Ministers and
thus undermine the authority of the
courts and the rule of law."
The said decision squarely applies to the fact of the
present case. Section 38-B which was inserted by Act No.17
of 1994 w.e.f. 20.12.1975 cannot have any application to the
facts and circumstances of the instant case. The provisions
of Section 38 and 38B operate in different fields. By
reason of Section 38B of the Act, the legislature
contemplated bulk transfer of land in favour of the
Authorities mentioned therein which, may carry out the
development scheme or deal with the matter in accordance
with law. The High Court, in our opinion, has not correctly
applied the principles of law governing the field inasmuch
as it cannot be said that allotment of a plot measuring 1
acre 20 guntas is a bulk allotment. Whenever an allotment
of land is made for industrial purpose, it cannot be
restricted to a small peace of land. The extent of land
sought to be allotted must be commensurate with the purpose
for which the same is made.
Reliance placed by Mr. Bhat upon Padma vs. Hiralal
Motilal Desarda & Ors. [2002 (6) SCALE 683] is again
misplaced. In that case, it was categorically held that the
sale of bulk land by an institution like CIDCO was an
anathema to its objective and purpose or its establishment.
Such alienation was held to be contrary to the law dealing
with development planning. It was further found therein
that the land in question was required as buffer for
maintaining the ecology balance. Such is not the position
herein.
Furthermore, the writ petition should not have been
entertained keeping in view the fact that it was filed about
three years after making of the allotment and execution of
the deed of sale. The High Court should have dismissed the
writ petition on the ground of delay and laches on the part
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
of the first respondent. The Division Bench of the High
Court also does not appear to have considered the plea taken
by the appellant herein to the effect that the first
respondent had been set up by certain interested persons.
In a public interest litigation, the Court should, when such
a plea is raised, determine the same.
For the reasons aforementioned, the impugned judgment
cannot be sustained. It is accordingly set aside. The
appeal is allowed. The writ petition filed by the respondent
stands dismissed. No costs.