Printers (Mysore) Ltd. Vs. M.A. Rasheed & Ors
 Insc 225 (5
S.B. Sinha & S.H. Kapadia. S.B. Sinha, J :
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.
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.
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.
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
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').
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.
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.
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.
allotment, the learned counsel would argue, is covered by Section 38B of the
Act which admittedly is not attracted in the instant case.
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
has been defined in Section 2(j) to mean :
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 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
38 of the Act reads thus :
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:
Power of Authority to make bulk allotment. 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
the State Government; or
to the Central Government, or
any Corporation, Body or Organisation owned or controlled by the Central
Government or the State Government; or
any Housing Cooperative Society registered under the Karnataka Cooperative
Societies Act, 1959 (Karnataka Act 11 of 1959); or
any society registered under the Karnataka Societies Registration Act, 1960
(Karnataka Act 7 of 1960); or
a trust created wholly for charitable, educational or religious purpose:
that prior approval of the Government shall be obtained for allotment of land
to any category listed above."
first respondent in paragraph 3 of the writ petition averred:
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.
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
(i) Bangalore Development Authority (Allotment of
Sites) Rules, 1982;
Bangalore Development Authority (Allotment of Buildings under Self Financing
Housing Scheme) Rules, 1982; and
Bangalore Development Authority (Disposal of Corner Sites and Commercial Sites)
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.
4 SCC 667], it was held:
The High Court has held that the disposal of property forming part of the
compensation pool was "subject" to the 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
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."
[2004 (1) SCALE 224] this Court noticed:
to" is an expression whereby limitation is expressed. The order is
conclusive for all purposes.
Court further noticed the dictionary meaning of "subject to" stating:
the expression 'subject to' must be given effect to.
Black's Law Dictionary, Fifth Edition at page 1278 the expression "Subject
to" has been defined as under :
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 :
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].
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
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 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.
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.
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 Marks, Mumbai and Others (1998) 8 SCC 1).
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:
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
case of Bromley London Borough Council v. Greater London Council ( 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 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 Home Department ( EWCA Civ 158,  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.
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.
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.
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 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.
public interest litigation, the Court should, when such a plea is raised,
determine the same.
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.