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TMI Blog2004 (4) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... land in favour of an industrial undertaking was in question. 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. 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 of the first respondent. The Division Bench of the High Court also does not appear to have considered the plea taken by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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. (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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 assig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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