MIs La’crni Enterprkcs. v. Bruhat Bangalote Mahanagara Pahke.

hais of the order ot this Court in .P.No.3 1394/2009. During the pendene> of the i it petition, the Corporation has again issued a notice dated 10.7.2011 under Section 4 1; of the Public Premises Act. It is argued that the Corporation has leased only the land liberty to the petitionet to put up a commercial complex thereon. rhe petitioner has put up construction in terms of the plan sanctioned b the Corporation. Petitioner is the O6 nor of the said building Theretore. the pro’ isions of the Public Premises Act does not apply to the case on hand. H there is a breach of conditions of the lease, the Corporation has to take action against the petitioner tW its e iction under Section I G. of the Transfer of Property Act, 1882. Thus. the notices impugned herein ate totally ithout jurisdiction ‘The order ol the Di’ isbn B.nch of this Court in V I’ \o.3 1 W412009 has no ipphcation to thi’ ca’e. 10

9. On the other hand, learned Counsel appearing for the respondents ‘submits that a Di isbn Bench of this court W.P.No 31394/2009 has issued interim orders from time to time directing the Corporation to remote ali the encroachments oter storm isater drains. In the said case. the Corporation has filed an affidavit dated 3.8.2011 stating the procedure that tsould be tollotsed tor remosal of the encroachments oser the storm ater drains. Recording the said affidas it. the ss nt petition was disposed of That is wh3 the Corporation nas issued notice as per Anneure IC dated 4 7.20 I I calling upon the petitioner as to why the lease should not be terminated and the building should not be demolished. The building forms part and parcel ot the land leased to the petitioner hating regard to Section 3(17) ot the Karnataka General Clauses Act. I X9) The Corporation is also justified in initiatina action for eiction of tht. p..titsoner ftom the propert> in que%tion under the Public Premises Act as the building torms part ol the land. 11 10 It is further contended that Section 28& I) ot the Act authorises the Commissioner of the Corporation to grant licence subject to such conditions and restrictions as he may think fit to the o ncr or occupier of any premises to put tip or continue to have erandahs. balconies. sun-shade. seainer-franies and the like to project oser a street or in streets in ‘hich the constructions of arcades has been sanctioned by the Corporation to put up or continue to have an arcade or to construct an> step or drain coering necessary for access to the premises. However, no licence can be granted if the pi,jection of the or construction is likely to he injurious to health or cause public ineonenience or others ise materially interfere ssith the use of the road as such Therefore, the Corporation is lustified in issuing the impugned notices Ihecause the building has been constructed over the drain. In this tonnection. he has relied on the decision of this Court in W4.JID I’S. STITE OF £4Iec4TAc 1- ILR 1986 kAR 3679. It ;s triucd th it Section of the \ct o’s emdes the pros isions of the Public Premises Act. 12 I 1 It k argued that the leae deed has become sold due to passage of time. It is io1ati’.e of Section 23 of the Indian Contract In this connection, he is opposed to public policy. Act. 1872 as it decision relied R ING.INA )AI&%M.3L4 & •IXOTHER I’S. K.S.PRAK ISII (D BY LRs. & OTHERS - 2008 AIR SCW 6476. the Apex Court It

12. is contended that demolition of the building is absolutel> necescar> in public interest for the free flov of storm ‘be 13 Having regard to the contentions urged. the first question for concideration is hether the notice at Annexure ‘K’ dated 4 “.2() I I terminating the tenancy is illegal? In the notite at Annewe K’. one 01

14. the rea’on’ assigned thr the eviction of the petitioner is the order passed in 13 W.P.No 1394/2009. In the said case. the Chief Engineer (Storm ater Draint BBMP, Bangalore. ha filed an affidatit dated

3.8.2() 11 undertaking to remove the encroachments o er the storm water drains. Recording the said affidavit, on 4.$.20l 1. this Court disposed of the writ petition with a direction to remtne all encroachments over the storm water drains. Needle’s to sa> that the encroachments ha’e to be remoed in accordance with law and not otherwise. In the instant writ petition. we hase to con’ider as to whether the procedure adopted is in conformity with law.

15. The other ground ctated in the notice is that petitioner has sublet different portions of the building The lease deed at nne’iure ‘C’ e’tet.uted b3 the c orporation is a term lease for 60 >ears Under the said deed. the petitioner was permitted to use the schedule land for the construction of the building for i’rnmercial purposes. Clause I I ot the lease deed bars the petitioner trom subletting or parting with possession of the schedule land On the e’ipir> o. the period of lease, the building 14 constructed b the petitioner ests with the Corporation free from all encumbrances Clause 15 of the lease deed is as under ‘On breach of an> of the aforesaid condition, lessor shall have the right to reoke the lease and resume possession of the schedule land ith the building constructed, if any. by the lessee thereon notwithstanding the un-expired penod of lease and the lessee shall not be entitled to any compensation in respect of the building”

16. After construction ot the building. the petitioner has let out arious portions of the building to different tenants. The Corporation has assessed the building to ta on the basis of the rents collected by the petitioner from anous tenants. The notice issued by the Corporation terminating th tenanc> vas challenged Ii> the petitioner in the suit relerred to aNne. Issue So. I framed in the suit is a under: 15 “W hether the notice of termination of tease issued by the setond defendant bearing No.BCC/LC RR 06/04 05 dated 1.4.2006 is illegal, arbitrary and ithout junsdiction?”

17. ‘While anstsering the ‘aid is’,.r. the Cit it Court has held that the notice is illegal and without jurisdiction The decree ot the Cis it Court has become tinal and binding on the parties It is true the Cnit Court has resened libert to the Corpoiation to initiate action for eiction of the plaintiff horn the property in question in accordance ith lay. 18 It is eIl established that unlike in Itngland in India there can be a dual o nership. in the sense. that the land ma betonu to onc peison ai d the buildinas theieon may bclong to anothei person. This concept ot dual oneiship sas r’cojniscd by th Prns Council in ‘sIRI) 1’,, D4S ICIII.tITY VS. J1I1NDRI 16 TI! ROY CHOWDHRY & OTHERS — :111? 1927 PRJIT CO(\CIL 135. as under: “The maxim which is found in Eneli\h law, viz, “quic quid planiatur solo, SOLO cedit . has at the most only a limited application in India. Iire is nothing in the la s or Customs of India, to shos an traces of the existence of an\ absolute Rule of La that hateser is itself.” (emphasis supplied h\ me) I 9. In Dr,k.A,DHAIRYA fl 1.V & OTHERS I S. J.R.TIL4KL’R & OTHERS — AIR 195S SC 769. the Apex Court v as considerin the eviction of a tenant under the Bomha\ Rents, lintel and Lodging House Rates Control Act. 1947. In the said case, the appellants trustees of \Iankesh ar Temple. c\euted a ixcistcred iCde in fa\ our of tile rcspondIlt. a llerchy the\ demised a parcel of the land. The ease was for twent\ -one 17 \ears. Under the terms of the lease, the lessee had to construct s ithin sk months from the date ot the lease a double store> ed buildine consisting of shops en the ground floor and residential rooms on the upper floor. on termination of the lease, either at the end of the twenty-one sears or earlier, the lessee was to surrender the demised premises including the building with its fixtuies and appurtenances to the lessors without an compensation for the same. Shortly before the lease was to e”pire. the appellants gate notice to the respondents to deli’ter possession of the demised premises and the building on the epiry of the lease. After examining the tarious clauses of the lease, the kpex Court found that in none of them has it been positiiel> stated that the building to be erected on the demised land would be in the ownership of the lescoi s. I ‘nder the law. there w a’ no ir’ediment in the way of the parties to ha’e had a clause, in a positi’e t’nrrn. to that eftect. In the ihsenct. of such i clause in the lease. w htthei it ‘in ‘x said that there had also been a demise of’ the huildiin. The Supreme Court found that the schedule to the lease speeit’icall mentions that the 18 land had been demised and there is no mention therein that the building when constructed thereon would also form part of thc demised property. Taking into account these factual aspects, Apc court held as under: In 1927. when the lease was ececuted the Act was not in existence and it may reasonably be said that none of the parties had ever in contemplation that the Act or any thing akin thereto would become law in the future affecting the rights of the parties undet the lease. The sarious clauses of t.hn lease are consistent with the ow nership in the building being with the lessees in which the lessors had no right while the Is. lease subsisted. In the case of Vannan I)as 54 bad pp 21k (4IR 19r PC’ 1 35, Jatindra Karl, g’lj the Priy Council approved the obsenations of Sir Barnes Peacock in the case of ThaAt’’r Chundel Pt ‘reilnanit ‘A I s. Rumdln’1,’ BhIgttcft ‘har,ec 6 .Suth WI? 22’s ‘B, to the tollowing effect “We have not been able to rind in thc laws or this country any traces of customs of — —...—. . -a... ... f.t..—— a&. %?4•..... t. _t’. _______ 19 law that existence of an absolute rule of whatever is aftixed or built on the soil becomes a part of it. and is subjected to the same ‘rights In the case of of property as the soil itseir. Va!labhdas Naranji Vs. Development Officer, Bantlra. 56 Intl App 259: fAIR 1929 PC 163 (C the Privy Council once again referred to Sir Barnes Peacock’s observation as stated above. The Privy Council also quoted the following in the case of observation of Counch, C.J., Naroyan Vs. Bholagir, 6 Born BC (AC) 80(D): We cannot, however, apply to cases arising in India the doctrine of the English they should law as to buildings, viz., belong to the owner of the land. The only doctrine which we can apply is the doctrine the party so established in India building on another’s should allowed to remove the materials.”

20. In cHANrnu Bid VS. TUKARAM - 1977 (1) KU 270, this Court was considering the eviction of a tenant under I I) . ._.. S.. t...t - ZflJ. •1fl. . .. .. . —. 20 Section. 2 H I ‘U’ of the Karnataka Rent Control Act. 1961 In the said case, the petitioner was the owner of an open site. He leased the site to respondent No. I. Respodent No.1 constructed a building worth Rs.40() and agreed to put up a structure worth Rs.600. The lease period was 15 )ears. The lessee agreed to hand oer possession of the building without taking money at the end of the term, and not to mortgage or sell the building or alienate the building. Respondent No. I had ‘blet certain rooms in the building to respondent Nos.2 and I This Court held that the demised premises was only the open ‘ite and as such the lease of the two rooms to respondent No.2 and 3 did not amount to subletting

21. In 1LG.IIIREMATH & ANOTHER

33. I.KRISH’s t.PPA — hR 1978 ILIRXITAKA 13. this Court has held that there may be separation of the owntrship of the buildm& from the ow nership of the land. and there i no rule of law that 21 shateer is affixed or built on the soil becomes a part of it and is subjected LI) the same rights of property a the soil itself.

22. In WEST’S P-I TENT 2ESS (‘0. LTD. 1 ‘sI) :1 .VOTIIER VS. GOVINDNAIA GURL’i’s. 1 TH.V4IK AALGHATGI & OTHERS - AIR 1984 VOC 274 (K IR.’s.IflK-U. this Court has held thai in a building lease, if the tenant built on the open site leased to him, then, bs vixtue of the doctrine of dual o nership, h.. ould have the ownership of the building, and ii he let out the building. it would not amount to subletting of the lease-hold property. for the lease-hold property “as only an open site.

2. In BALL’ 31 IL P. SETH VS. (IRIYIPPA — ILR 1991 EAR 1256. this Court ct.nsidering the protection a’ailable to sub tenants inducted b tenant ith npt ‘ss consent of landloid In this case, a acant site let out h die landlord in Ln our of respondent No.4 for a period of 20 sears on a monthly rental ot 22 lihert’ the tenant was at Rs 200/-. The lease deed proided that the tenant shall construct a building according to the plan got sanctioned by the (‘orponition. the tenant at his own The building was to be constructed by expense. and apart from the pound floor and the first floor as to construct othet shown in the plan. storey thereon and use it tor himsdf w1d for others at his instance according to his con’enience. After the c’cpiry of 20 years. tenant was to dcli’ er possession of the building as it with atleast the ground floor and the first floor. The landlord ga e notice to the tenant as also to the sub-tenants calling upon them to hand o er sacant possession of th: building on 6.1 .1986 a the term ot 20 years was to expire on that day. Since the tenant and the sub- tenants did not ‘acate the premises. the landlord tiled a petition to, then stood decision grounds Relying on on arious c iction DrJt4.DIIAIRY4W4X\ case supra’. this Court has hcld Js 23 the landlords in from the sub-tenants. However, “Applying the principles laid down by the Supreme Court to the facts of the instant case. all that can be said is that ew of the contract became the owners of the super-structure on the expiry of the term of the lease, and if they so desired, could recover seeking eviction of the tenants, they have necessarily to resort to the procedure laid down in the Karnataka Rent Control Act, which they have done in the instant case. They have therefore to ir’ke out a ground for eviction of question. The decision in DrDhairyawan’s case can be of no assistance in deciding whether in pursuance of the decree for eviction passed against the tenant. the sub-tenant can also be evicted with the aid of Section 30 of the Act, because the status of the sub-tenants inducted by the tenant ii not fall for con%ideration before the supreme Court.” from the premises the occupants

24. The Apex Court in £4 TAN LAL lAiN & OTHERS VS. LIMA SHANKAR WAS & OTHERS - (2O02) 2 SCC 656, has considered a similar question. It has been held as under: I 24 ‘6. Clause (h) of Section 108 of the Transfer of Property Act, 1882 confers a right on the lessee to remove either during or even after the determination of the lease, at any time whilst he is in possession of the property leased but not afterwards, all things which he has attached to the earth which will include any building raised by him on the leased land. However, such right is subject to a contract or local usage to the contrary. In the present case, clause 16 of the lease deed obliges the lessee to hand over, at the end of the lease. all the construction with fittings and tenancy to the owners. In the facts very similar to those before us. this Court held in Ka-tDhairyawan (Dr) V. J.R.Thakur that although under Section 108 of the TP Act, the lessee had the right to remove the building but by the contract he had agreed to hand over the same to the lessors without the right to recei - compensation at the end of the lease. The matter would be governed by the contract between the parties. Such a contract did no transfer the ownership in the building to the lessors only while the lease subsisted. Obviously at the end of the lease. the things attached to earth by the tenants 25 pass over to lessor-owners of land in accordance with the contract. On determination of lease, as entered into between the panics the consequences which follow are: (i) the lease of land comes to an end, (ii) the ownership of building raised by incipal tenants stand vested in the lessor-owners of land, the building goes with the land, tenants have to physically vacate the property. and (iv) the lessor- owners stand subrogated in place of principal tenants.” the principal (iii)

25. In the instant case, the Corporation is the owner of the land. Under the lease deed at Annexure ‘C’ the petitioner was put in possession of the said land. It was a term lease for 60 years under which the petitioner was permitted to put up a construction. The petitioner has constructed a multi-storied complex thereon as per the plan sanctioned by the Corporation. None of the clauses in the lease deed positively state that the uulding to be erected on the demised land would be in the ownership of the Corporation. There “as no impediment in the way of the panics to have had a clause in a positive form to that effect. In the absence of such a clause, it 4 I 26 cannot be said that the (‘orporntion is the owner of the building. By ‘irtue of the doctrine of dual ownership, the petitioner has become the oner ot the building. The petitionet has not iolated an) of the conditions of the lease. The lease of the building by the petitioner in favour of third panics did not amount to sub-letting as the lease hold property as only the land On this ground, Corporation cannot evict the petitioner from the land and the building in question On the expiry ot the penod of lease, building constructed by the petitioner will vest with the Cot poration tree froni all encumbrances. If the petitioner iolatcs an of the terms of the lease insofar as ti;e land is concerned, it can he evicted from the land and the building ncn ithstanding the un expired penod of lease 26 That brings me to the second question a to hether the (orpotation is justified in inu fling auton tot esiction ot petitioner under the pro’ isions of the Karnataka Public Premises (Esiction oft. nauthorised Occupants) Au. 1974? 27

27. Annexure bN* is the notice issued by the Corporation under Section 4(l) of the Public Premises Act calling upon the petitioner as to why it should not be evicted from the land and building in question. The ground urged in the notice is that petitioner has sub-let the building in favour of third parties in violation of Clause 11 of the lease deed. Clause 11 of the lease deed bars the petitioner from subletting or parting with possession of the land. On the expiry of the period of lease, the building constructed by the petitioner vests with the Corporation free from all encumbrances. Clause 15 states that the Corporation shall have the right to revoke the lease and resume possession of the land with the building constructed thereon if the lessee contravenes any of the terms and conditions of the lease deed. As has been noticed above, under the lease, petitioner was permitted to use the land for construction of the building for commercial purpose. He has not sub-let the land in question. I have already held that petitioner is the owner of the super structure. As the owner of the super ctructure. he has let out different portions of the building to I 28 different tenants. On the e\pir of the peiiod ot 6() sears, building constructed by the petitioner sests ssdth the Corporation free from all encumbrances. The petitioner has not parted ith possession of the land. Therefore, the question is shether the leasing of the buildings to the tenants attracts the provisions of the Public Premises Act? 2S The Apex Court in EXPRESS i’LWSPAPERS PVT. LTD. & OTHERS VS. UNION OF IADIA & OTHERS - AIR 1986 SC 872. has considered an identical question. In the said case, it has been held thus: 87, NpierJi,Ltd ,Vv th the sanction of the lessor i e. the on Plots \os) and I 0. Bahaduishah /iMgr cdnjgetggI lease bircistcred lease deed datLd March 1 198 can, by noprocess ot reasog. regarded edcrenIshelpnging ft Central Gosernment under S 2(e). That hem so, there 29 )reictiorof the Express Newspapers Pvt. Ltd., under S.5( 1) of the t,197liorir under sub-sec. (2 Due process of law in a case like the present necessarily implies the filing of suit by the lessor i.e. tile Union of India, Ministry of Works & Housing for the enforcement of the alleged right of re-entry, if any, upon fo”’iture of lease due to breach of the terms of the lease,” (emphasis supplied by me)

29. This Court COL.S,P.A NA ND VS. THE COMPETENT OFFICER, SECRETARY TO BANGALORE DEVELOPMENT AL7HTORITY, BANGALORE AND ANOTHER 2001 (6) kU 72, was considering the eviction of an allottee from a site allotted by the BDA and the house constructed h the petitioner thereon with the sanction of the competent authority. It is hc.ld that the premises cannot he considere.d as a 30 I public piemises belonging to the autho ty Consequently. there is no jurisdiction to direct e’ iction of the allottee therefrom. Due process ot Ias requires tiling of suit br enforcement of its right of ie’.oking the allotment and for re-entry. Psiction proceedings was accordingly quashed by this Court resersing liberty to the BD\ to take suitable action before the r; II Court in a properly constituted suit. It has been held thus’ In this ease. as stated above, the question of tenancy does not arise in vies of the fact that the building in question was constructed by the petitioner spending money and the same was also according to the plan and specifications panted by the BDA. Therefoic. it cannot be construed a a public premises.” (J. Iherefore it cannot be said that petitioner has unauthorisedly sub-let portions of the building. The building in question cannot be treated as public premises The petitioner Is the ow net of Uic said building The Corporation becomes the owner of 31 the building after the expiry of 60 years from the date of execution hen the petitioner violate’ the terms of of the lease deed. It is only the lease, the Corporation is at liberty to terminate the lease and resume possession of the land and building notwithstanding the unexpired period of lease. The petitioner has not violated any of the the action initiated In the is so. If that the lease. terms ot Corporation for eviction of the petitioner under the provisions of Public Premises Act is ithout authority of la.

31. At this stage. it is necessary to consider the contention of the learned Counsel for the Corporation that the building put up by the petitioner forms part of the land leased by the Corporation haung zegard to Section 3(17) 01 the Karnataka General Clauses \ct. 3899. Theretkwe. the Corporation is justified in inok.ing the pm’ isions of the Public Premises Act for e’ ic.tion ot the petitioner 32 The object of the Public Premises Act is to indicate th. meaning of an expression in a genc: ic and not in a rigid ot 32 exhaustive sense and shorten the language of statutory enactments and to provide for uniformity of expression in case where there is identity of subject matter. Vhatever th.. General Clauses Act says as regards the meaning of the words or as regards the legal principles has to be read into every statute to which it applies provided the statute does not contain anything repugnant to them in its subject or context and does not produce a different intention. In N.SUBRAMANIA IYER VS. OFFICIAL RECEIVER, QIJILON AND ANOTHER — AIR 1958 SC 1. the Apex Court has held that the General Clauses Act is enacted in order to shorten language used in parliamentary legislation and to av?id repetition of the same words in the course of the same piece of a legislation. Such an Act is not meant to give a hide-bound meaning to terms and phra.cs generally occurring in legislation. That is the reason why the definition section contains words like ‘unless there is anything repugnant in the subject or context’. a .a..aac a a a..aa• la’a.a.a..a._._•_. 33 a’

33. Section 2e) 1)1 the Public Premises Act defines public an> premises belonging to or allotted to Suite premises Gosernment or taken on lease or requisitioned by or on behalf of the State Government and inciutes an premises belonging to or ‘Premises’ taken on lease In different parties mentioned therein. has been defined in Section 2(c) as any land or any building or hut or pan of a building or hut and includes the garden. grounds and outhouses if any. appertaining to such building or hut or part of a building oi hut. and an> fittings affled to such building or hut or part of a building or hut for the mow beneficial enjoy ment thereof. 34 Tn the instant case, the premises let out by the petitioner It belongs to k the super structure ‘shich k not a public premises the petitioner. The expression ‘premises’ or ‘public premises are not defined in the General Clauses 4..t The object of Public Premise’ Act is to pit ‘ide for a speedt remedy br e ictmon of the unauthoristd oc.cupants from public premise’. hen the npression puhlic premises’ has not been defined in the Geneial (austs Act. 34 is uflncccsszu’v to import immn able propert>’ into the Public Premises Acts. (he definition of the c’tpression 35 The third contention of the learned Counsel the Corporation is authoriied to demolish the petitioner is that building in question constructed oer the storm water drain having regard to Section 288 of the Kamataka Municipal Corporations The impugned notices hate not been issued under Act. 1976. ‘ection 288 of the said Act. Be that as it ma)

36. Section 288(1) authorises t’:, Commissioner to grant licence subject to such conditions as he mitt> think fit to the oner to put up or ontinuc to hate or occupier ot an) premises iseather frames and the like to terandahs. balconies, sun-shades. hmch the constructions of project oser a street or in streets in arcades has been sanctioned t’ the Corporation to put up or to tonstruct any step ot drain continue to hate an arcade or cotering necessar> for access to the piemises. Sub-section (2) 35 to such licence subject to grant auihorises the Commissioner conditions and restrictions as he may think fit br any temporary construction in any street or in any public place the control of which is sested in Corporation. Sub-section 4i states that on the epiry of an> period for which a licence has been granted or after due communication of an order of suspension or re’.ocation of such an> the Commissioner ma>. w about notice, licence, projection or construction put up under sub-section tl) or (2) to be remo’ed. These pros isions have no application because petitioner has taken possession of the land under a lease deed for a period of 60 years and put up construction thereon. Section 288(4) does not pro’. ide for c. icting a tenant fr’m the property belonging to the Corporation or to demolish the building lass fully constructed by tht remove the Commissioner petitioner pinlections oi constructions put up by the licencees after the epin the petiod ob liencc or attei suspension or tesocation of the authoriies It lLence 36 In W4JIL)\ case isupnn relied on In

37. the learned as considering the this Court the Corporation, It Counsel renIo%al of hunk shops put up h> the petitioners therein on the foot as held that path and sub-ts a s sithin the Corporation limits. encroachment of any type including bunk shops on the foot path is not permitted b> the statute There is no potter in the Corporation to grant permission to put up even bunk shop on the foot path. The Corporation is competent to remo’e the ohstructions, projections in or upon the streets, bridges and other public places. The Court has further held that Section 288 of the Act s hen compared to Public statute and it ovemdes the Premises Act becomes a special pro’ isions of the Public Premises Act. In the instant case. ttc are not considering the reinos al of encroachments under Section the aforesaid decision is not Thererore. 288(4 of the Act. applitable to the facts of this case.

38. That brings me to the la’t contention ot the tespondent the object of the lease deed at Anneure ‘C’ has betome 37 It is argued that is opposed to public polic). tinlaM ful as it subject matter of the lease is the portion of the land lying oser the storm water drain. The ‘torm water drain is meant for drdinin2 the oertiowing water which floods adjoining properties. Ha’ ing regard to Section 23 of the Indian Contract Act. 1872. the contract has etentually bewme void roads, paements

39. Section 23 of the Contract \ct las, down that if it i is unlawful am agreement consideration or object ot forbidden by law, or would defeat the pro’ isions of any law, or would invol c injurs to the person or property of another or the immoral or opposed to public policy The Court considers it Contract Act does not define the expression ‘public policy’. The public policy is the principle which declares that no man can law lull> do that which has a tendency to be injurious to the public weltare. Public policy comprehends the protection and promotion 01 puNk weltare. It is a pnnciple ot lass under which freedom tot contract or pth ate deal’ng is restricted by the law tor the good tif 38 j I the community A contract which has the tendency to injure public inteicst or public elfare is one against public policy. The concept immutable iiite it must ary with the It ut public policy is not It does not remain static. changing needs of the society. changes with passage of time

40. stated that immutable. In NAGLE S. FIELDEX — 1966(2) QB 633. cannot the law relating to public policy It must change w ith passage of time The wind of iemain it was change blows upon it.

41. The Andhra Pradesh High Court in RATTA.VCIIANI) has observed that IIIR4CHAXD VS. ASkIR XAIIAZ 1CM) - AIR 1976 AP 112 in a modem progresshe society with fast it becomes more and more changing social alues and concepts. impeaatne to eohe new heads ot public policy. Law cannot afford to remain sta&. The pnnciples gcnen.iog publi’.. polk’ are thus capable on proper occasion ot expansion ot modification. If there is no head of policy which coven a case. then the Court must 39 consonance with publit conscience mid in keeping with ublic goods and public intcrct. declare practices which were considered nomial at one time, but ha’e become obno’ious and oppressie to public conscience. to he opposed to public policy.

42. Tn ASSO(’IA FED (tME VT COMPANIES LTD. VS. THE STATE OF R4JA STRAY AND ANOTHER - AIR 1981 RAJ4STIL4N 133. it has been held thus: Publie polk> does not remain static in an> gisen It ma’ ‘my from generation to genetation community. and een in the same generation. Public Policy would it was to remain in fixed moulds be almost useless it rhe difficulty of disco’ering what public fin all time. policy is at any gnen moment certainty does not In absolve the Judges from the duty of doing o. conducting an enquirs. Judges arc not hide abound In precedent The Judges must took hey ond the narrow though this still 1eaes open held of past precetlents. they must cast their The Judges we to base their decision in whi:h directioi. the question, ga’e. or’ 40 opinions of men of the world, as distinguished from In other words, the learning. opinion based on legal Judges will have to look beyond. the jurisprudence and their own those of the personal standards or predilections but dominant opinion at a given moment. or what ha been termed customary morality.” they must consuLt not in so doing,

43. In GURMLJKH SINGH VS. AMAR SJNGH - (1991)3 5CC 79. the Apex Court has held as under: It is variable with the ‘Public policy is not static. changing times and the needs of the society. The march of law must match with the fact situation. A tending to injure public interest or public contract the right of the third welfare or fraudulent to defeat parties is void under Section 23 of the Contract Act.”

44. The legislature often fails to keep pace with the changing needs and values nor is it realistic to except that it will is, have provided for all contingencies and eventualities, I 1! 4. ?4t$t !at tttttt-’ .. . ..• . . , a. 41 I thcrefr’re. not only neces’ary. hut obhgator> on the Courts to step 15cc R4fl’AX L’H4ND IIIR.4L’II4VD IX in to fill the lacuna. ASK1R £IW4Z JLMJ — (1991 j 3 Sfl’ 67). 1976

45. The Kamataka Municipal Corporations Act. authorises the Corporation to lease the lands in question. The agreement was executed on 24.9 1980 for a period of 60 years. The State Gos ernment has accorded appros alto execute the lease deed The contention of the Corporation is that the construction of the building oser the storm water drain presents free flow rain water resulting in submergence of the area during the rain> season. It the time when the lease deed was further submitted that at executed. City of Bangalore had not des eloped to today \ extent Encroachment and construction oser st•am water drain has caused In public interest. flow of storm water oh%tiuction to the fret flooding of wads. pasenients must he asoided The Corporation should ensure that Banaloie Cit’ is equipped with obstruttion fret. storm water drains. ss hich will thannalise the flood water properl>. 42 I I become unlawfuL Whether the contract ihus. the contract has nm ha’ mnentuall> become ‘old ith the passage of time as contended tact. in the learned Counsel The impugned notices have riot been issued on this ground. refrain from recording rn observations on this liberty to initiate appropriate the Corporation js a quection of question The Corporation js at Therefore. I proceedings on this ground

46. In RANGA&1YAk4MMSs case (supra relied on by the Apex Court has held the learned Counsel for the Corporatior is not required to be a’ oided that a void document oidahIe document rnut be Whether the lease deed is a oid document or not is not the cubject matter of thk writ petition hereas 47 It is rele ant to note that the C orporation ls not helple’s of storm ater in the In ft mine the obstruction for the free It is permissible to acquire the lease hold rights drain in qut stion. of the petitioner in the land and its o’ner’hip nghts in the hitildins. constructed thereon in accordance ith lass. 43 48 The nt petition is aecordingi> allowed. 1 he notices at nneurc ‘K and S’ dated 4.7.O 11 and 30.7.2011 respectie1y are hereb> qua%hed. No ct)st%. it ; 8MM!