Karnataka High Court

Island Star Mall Developers ... vs Bangalore Development Authority on 9 September, 2022

Bench: E.S.Indiresh

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 09TH DAY OF SEPTEMBER, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE E.S. INDIRESH

         WRIT PETITION NO.18965 of 2021 (BDA)

BETWEEN:

ISLAND STAR MALL DEVELOPERS PRIVATE LIMITED
A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956
HAVING REGISTERED OFFICE AT
MARKET CITY RESOURCE PVT. LTD.
R.R. HOSIERY BUILDING
SHREE LAXMI WOOLLEN MILLS ESTATE
OPP. SHAKTHI MILLS
OFF. DR.E. MOES ROAD, MAHALAXMI
MUMBAI - 400 011.

ALSO HAVING OFFICE AT MALL MANAGEMENT
OFFICE LOWER GROUND FLOOR
NO.40 & 41, MAHADEVAPURA POST
BENGALURU - 560 048.
(REP. BY MR. GAJENDRA SINGH RATHORE)
                                             ...PETITIONER

(BY SRI K. ARUN KUMAR, SENIOR COUNSEL
 FOR SRI SUNDARA RAMAN, M.V., ADVOCATE)

AND:

1.     BANGALORE DEVELOPMENT AUTHORITY
       KUMPARA PARK WEST
       T. CHOWDAIAH ROAD
                           2




     BENGALURU - 560 020.
     REPRESENTED BY THE COMMISSIONER

2.   TOWN PLANNING MEMBER
     BANGALORE DEVELOPMENT AUTHORITY
     KUMARA PARK WEST,
     T. CHOWDAIAH ROAD
     BENGALURU - 560 020.

3.   DEPUTY DIRECTOR (EAST)
     BANGALORE DEVELOPMENT AUTHORITY
     KUMARA PARK WEST,
     T. CHOWDAIAH ROAD
     BENGALURU - 560 020.

4.   STATE OF KARNATAKA
     URBAN DEVELOPMENT DEPARTMENT
     NO.4, M S BUILDING, 4TH FLOOR
     6TH BLOCK, NEAR VIDHANA SOUDHA
     AMBEDKAR VEEDHI
     BENGALURU - 560 001,
     REPRESENTED BY THE DEPUTY SECRETARY
                                        ...RESPONDENTS

(BY SRI D.N. NANJUNDA REDDY, SENIOR COUNSEL
 FOR SRI G. LAKSHMEESH RAO, ADVOCATE FOR R1 TO R3;
 SRI K.R. NITYANANDA, AGA FOR R4)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
CONSTITUTION OF INDIA PRAYING TO QUASH THE LETTERS
DATED 12.03.2020 AT ANNEXURE-H; ISSUED BY R2, LETTER
DATED 10.09.2020 AT ANNEXURE-K ISSUED BY R3, LETTER
DATED 25.03.2021 AT ANNEXURE-M AND LETTER DATED
19.08.2021 AT ANNEXURE-Q ISSUED BY R2; AND ETC.

    IN THIS WRIT PETITION, ARGUMENTS BEING HEARD,
JUDGMENT RESERVED, COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
                                 3




                            ORDER

Feeling aggrieved by the letters dated 12th March, 2020;

10th September, 2020; 25th March, 2021 and 19th August, 2021

produced as Annexure-H, K, M and Q to the writ petition, issued

by respondent-authorities along with seeking consideration of

the application dated 19th July, 2019, the petitioner has

presented this writ petition.

2. The relevant facts for adjudication of this writ petition

are that, the petitioner is a Company incorporated under the

provisions of Companies Act, 1956; and in order to expand its

existing facilities in the existing building comprised of Plot No.9

(part), 10, 11A and 12 situate in Sub.No.1, 2, 3, 5, 6, 7, 10 and

11 of Survey No.40 and Sub.No.15, 16, 17 and 18 of survey

No.41 at property bearing khata (Old No.17) and New No.23 of

Dyvasandra Industrial Phase-II, Dyavasandra village, Bangalore-

560 048, petitioner sought for according sanction plan. The

respondent-Bangalore Development Authority (for brevity

hereinafter referred to as "BDA"), sanctioned plan through

Bruhat Bengaluru Mahanagara Palike (for short 'BBMP') on 11th

September, 2019. The respondent No.2 notified the zoning

regulations of Bengaluru, as per Revised Master Plan-2015

(Amendment) Regulations, 2019 (for short hereinafter referred

to as '2019 Regulations'), and as such, the petitioner filed

application on 19th July, 2019. The grievance of the petitioner is

that the petitioner is entitled for certain benefits accorded to

developers, specifically with regard to the Floor Area Ratio, car

parking benefits, service area benefits, etc. extended in the 2019

Regulations. Pursuant to the same, the petitioner sought to

modify its existing development plan and accordingly, made an

application on 19th July, 2019 along with the proposed Modified

Plan for approval and the same was returned by respondent-

authorities, calling upon the petitioner to provide necessary

clarification. Thereafter, complying with the necessary

clarifications sought for by the respondent-authorities, the

petitioner having re-submitted the applications for issuance of

modification of Development Plan as per letter dated 09th July,

2021 and 19th August, 2021, the respondent-authorities have not

considered the applications. That apart, the petitioners have

challenged the impugned letters produced at Annexure-H, K, M

and Q, whereby the respondent-authorities have communicated

to the petitioner that 2019 Regulations are prospective in nature

and therefore, rejected the claim made by the petitioner seeking

benefits under the said Regulations. Hence this writ petition.

3. The respondent-BDA has filed statement of objection,

seeking rejection of the writ petition on the ground that 2019

Regulations are prospective in operation and not retro-active,

accordingly, stated that the modifications sought for by the

petitioner has to be considered in the light of 2019 Regulations.

4. Heard Sri K. Arun Kumar, learned Senior Counsel

appearing on behalf of Sri Sundara Raman M.V. for the

petitioner; Sri D.N. Nanjunda Reddy, learned Senior Counsel

appearing for Sri G. Lakshmeesh Rao, for the respondent-BDA;

and Sri K.R. Nityananda, learned Additional Government

Advocate, for the respondent-State.

5. Sri K. Arun Kumar, learned Senior Counsel appearing

for the petitioner contended that 2019 Regulations are

retrospective in nature and the petitioner is entitled for the

benefits accorded in the said Regulations. He further contended

that as the partial occupancy certificate was issued on 10th

October, 2011 relating to the completion of the building as per

the original sanction plan, there is no impediment for the

respondent-BDA to consider the case of the petitioner for

extending the benefits in terms of prayer made in the

applications and accordingly, learned Senior Counsel sought for

interference of this Court. To buttress his arguments, he relied

upon the judgment of the Hon'ble Apex Court in the case of N.K.

BAJPAI v. UNION OF INDIA AND ANOTHER reported in

(2012)4 SCC 653. The learned Senior Counsel also relied upon

the judgment of the Hon'ble Apex Court in the case of STATE

BANK'S STAFF UNION (MADRAS CIRCLE) v. UNION OF

INDIA AND OTHERS reported in (2005)7 SCC 584 and

contended that 2019 Regulations are retro-active in nature and

therefore, he contended that the petitioner is entitled for benefits

under the 2019 Regulations.

6. Per contra, Sri D.N. Najunda Reddy, learned Senior

Counsel appearing for the respondent-BDA argued in support of

the rejection of the applications made by the respondent-BDA

and further submitted that since the original plan was sanctioned

by the respondent-BDA on 23rd June 2010, the Rule prevalent

then has to be considered for accepting the applications made by

the petitioner and therefore, he submitted that the writ petition

deserves to be dismissed in limine. To fortify his contentions, Sri

D.N. Nanjunda Reddy, learned Senior Counsel referred to the

judgment of the Hon'ble Apex Court in the case of SRI

VIJAYALAKSHMI RICE MILLS, NEW CONTRACTORS CO.

AND OTHERS v. STATE OF ANDHRA PRADESH reported in

(1976)3 SCC 37. Insofar as the argument advanced by the

learned Senior Counsel for the petitioner relating to

consideration of the application for modification of the plan at

the later stage is concerned, Sri D.N. Nanjunda Reddy, learned

Senior Counsel appearing for the respondent-BDA places reliance

on the judgment of the Hon'ble Apex Court in the case of

HOWRAH MUNICIPAL CORPORATION AND OTHERS v.

GANGES ROPE CO. LTD. AND OTHERS reported in (2004)1

SCC 663 and contended that the 2019 Regulations are

prospective in nature and therefore, petitioner is not entitled for

benefit under the said Regulations.

7. Sri K.R. Nityananda, learned Additional Government

Advocate for the respondent-State, supports the contentions

raised by the learned Senior Counsel appearing for respondent-

BDA and in addition to that with regard to consideration of the

application seeking sanction plan at the later stage, he relied

upon the judgment of the Hon'ble Apex Court in the case of K.S.

PARIPOORNAN v. STATE OF KERALA AND OTHERS reported

in (1994)5 SCC 593.

8. In the light of the submissions made by the learned

counsel appearing for the parties, the issue involved in this writ

petition is whether the petitioner is entitled for benefits under

2019 Regulations, or not?

9. In this context, on careful consideration of the writ

papers, it is not in dispute that the petitioner made an

application seeking occupancy rights/sanction plan with the

respondent-BDA on 23rd June, 2010 and the partial sanction was

accorded on 10th October, 2011. The petitioner completed the

building by 01st February, 2013 and thereafter, the petitioner on

09th May, 2018, filed modified plan for approval. Pursuant to

same, spot inspection was conducted by the respondent-BDA

and found that no adequate parking space was provided and

hence raised certain objections. Thereafter, no steps were taken

to remove the same and as such, the respondent-BDA did not

consider the request made by the petitioner. In the meanwhile,

the Zonal Regulations, 2015 as per Annexure-A, was published

on 07th March, 2019 known as Zoning Regulations of Bengaluru

Revised Master Plan, 2015 (Amendment) Regulations, 2019.

Clause (2) of the Regulation provides that the said Regulations

comes into force from the date of the publication i.e. 07th March,

2019. Certain minor amendments have been made to the Zonal

Regulations of 2015. The claim made by the petitioner that,

2019 Regulations are retrospective in nature and therefore, the

case of the petitioner has to be considered by extending benefits

accorded under 2019 Regulations. In this aspect, the

respondent-BDA, as per Annexure-H, has sought for opinion

from the Government and pursuant to the letter dated 25th

February, 2020, the Government opined as follows:

"G¯ÉèÃR (4) gÀ ¸ÀPÁðgÀzÀ ¥ÀvÀæzÀ°è PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄ C©ü¥ÁæAiÀÄ ¥ÀqÉAiÀÄ¯ÁVzÀÄÝ, PÁ£ÀÆ£ÀÄ E¯ÁSÉAiÀÄÄ "AiÀiÁªÀÅzÉÃ MAzÀÄ C¢ü¸ÀÆZÀ£ÉAiÀÄÄ CzÀgÀ°è ¥ÀÆªÁð£ÀéAiÀÄªÁV C£ÀéAiÀÄªÁUÀvÀPÀÌzÀÄÝ JAzÀÄ ¤¢ðµÀÖªÁV ºÉÃ¼ÀzÉÃ EzÀÝ ¥ÀPÀëzÀ°è ¸ÀzÀj C¢ü¸ÀÆZÀ£ÉAiÀÄÄ ºÉÆgÀr¹zÀ ¢£ÁAPÀ¢AzÀ eÁjUÉ §gÀÄvÀÛzÉ JAzÀÄ ¥ÀjUÀtÂ¸À¨ÉÃPÁUÀÄvÀÛzÉ" JAzÀÄ w½¹gÀÄªÀÅzÀjAzÀ ¢£ÁAPÀ 19.06.2019gÀ C¢ü¸ÀÆZÀ£ÉAiÀÄ£ÀéAiÀÄ ¸ÀzÀj ªÀiÁ¥ÁðrvÀ C©üªÀÈ¢Þ AiÉÆÃd£Á £ÀPÉë C£ÀÄªÉÆÃzÀ£ÉAiÀÄ ¤ªÀÄä ªÀÄ£À«AiÀÄ£ÀÄß ¥ÀjUÀtÂ¸À®Ä CªÀPÁ±À«gÀÄªÀÅ¢®èªÉAzÀÄ F ªÀÄÆ®PÀ w½¹zÉ."

10. In the backdrop of these aspects, the question to be

answered in this writ petition is whether the benefit provided

under 2019 Regulations should be considered from the date of

sanction or from the date of application made by the petitioner in

the present case. In this aspect, it is useful to refer to the

judgment of the Hon'ble Apex Court in the case of P.

MAHENDRA v. STATE OF KARNATAKA AND OTHERS

reported in AIR 1990 SC 405, wherein at paragraph 5 of the

judgment, it is held as follows:

"5. It is well-settled rule of construction that every statute or statutory Rule is prospective unless it is

expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the Rules showing the intention to affect existing rights the Rule must be held to be prospective. If a Rule is expressed in language which is fairly capable of either interpretation it ought to be construed as prospective only. In the absence of any express provision or necessary intendment the rule cannot be given retrospective effect except in matter of procedure. The amending Rule of 1987 does not contain any express provision giving the amendment retrospective effect nor there is anything therein showing the necessary intendment for enforcing the Rule with retrospective effect. Since the amending Rule was not retrospective, it could not adversely affect the right of those candidates who were qualified for selection and appointment on the date they applied for the post, moreover as the process of selection had already commenced when the amending Rules came into force. The amended Rule could not affect the existing rights of those candidates who were being considered for selection as they possessed the requisite qualifications prescribed by the Rules before its amendment moreover construction of amending Rules should be made in a reasonable manner to avoid unnecessary hardship to those who have no control over the subject matter."

11. The Hon'ble Supreme Court in the case of G. SEKAR

v. GEETA AND OTHERS reported in 2009(6) SCC 99, at

paragraphs 30, 31, 39, 40, 42 and 43 of the judgment, has

observed thus:

"30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective.

31. It is now a well settled principle of law that the question as to whether a statute having prospective operation will affect the pending proceeding would depend upon the nature as also text and context of the statute. Whether a litigant has obtained a vested right as on the date of institution of the suit which is sought to be taken away by operation of a subsequent statute will be a question which must be posed and answered.

32 to 38 xxx xxx xxx

39. Indisputably, the question as to whether an amendment is prospective or retrospective in nature, will depend upon its construction.

40. It is merely a disabling provision. Such a right could be enforced if a cause of action therefor arose subsequently. A right of the son to keep the right of the daughters of the last male owner to seek for partition of a dwelling house being a right of the male owner to keep the same in abeyance till the division takes place is not a right of enduring in nature. It cannot be said to be an accrued right or a vested right. Such a right indisputably can be taken away by operation of the statute and/or by removing the disablement clause.

41. xxx xxx xxx

42. In Vishwant Kumar v. Madan Lal Sharma and Anr. [(2004) 4 SCC 1], a three judge Bench of this Court repelled a similar contention that Section 9 of the Delhi Rent Control Act providing for the exclusion of operation thereof in the following words:

"4...There is a difference between a mere right and what is right acquired or accrued. We have to examine the question herein with reference to Section 4, 6 and 9 of the Act. It is correct that under section 4 of the Rent Act, the tenant is not bound to pay rent in excess of the standard rent, whereas under section 9 he has a right to get the standard rent fixed. Such a right is the right to take advantage of an enactment and it is not an accrued right."

It was furthermore opined:

"4... What is unaffected by repeal is a right acquired or accrued under the Act. That till the decree is passed, there is no accrued right. The mere right existing on date of repeal to take advantage of the repealed provisions is not a right accrued within section 6(c) of the General Clauses Act. Further, there is a vast difference between rights of a tenant under the Rent Act and the rights of the landlord. The right of a statutory tenant to pay rent not exceeding standard rent or the right to get standard rent fixed are protective rights and not vested rights. On the other hand, the landlord has rights recognised under the law of Contract and Transfer of Property Act which are vested rights and which are suspended by the provisions of the Rent Act but the day the Rent Act is withdrawn, the suspended rights of the landlord revive."

43. A similar question came up for consideration recently in Subodh S. Salaskar v. Jayprakash M. Shah and Anr. , wherein it was noticed:

"27. In Madishetti Bala Ramul (Dead) By LRs. v. Land Acquisition Officer [(2007) 9 SCC 650], this Court held as under:

"18. It is not the case of the appellants that the total amount of compensation stands reduced. If it had not been, we fail to understand as to how Section 25 will have any application in the instant case.

Furthermore, Section 25 being a substantive provision will have no retrospective effect. The original award was passed on 8-2-1981: Section 25, as

it stands now, may, therefore, not have any application in the instant case."

The question is now covered by a judgment of this Court in Anil Kumar Goel v. Kishan Chand Kaura holding:

"9. "17. All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive.

Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutory provision has retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. If the language is not clear then the court has to decide whether, in the light of the surrounding circumstances, retrospective effect should be given to it or not. (See: Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and Ors.,)

10. There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. Obviously, when the complaint was filed on 28.11.1998, the respondent could not have foreseen that in future any amendment providing for extending the period of limitation on

sufficient cause being shown would be enacted.'"

12. In the case of COMMISSIONER OF INCOME TAX,

MUMBAI v. M/S. ESSAR TELEHOLDINGS LIMITED reported

in (2018)3 SCC 253, at paragraphs 22, 25 and 26, of the

judgment has observed thus:

"22. The legislature has plenary power of legislation within the fields assigned to them, it may legislate prospectively as well as retrospectively. It is a settled principle of statutory construction that every statute is prima facie prospective unless it is expressly or by necessary implications made to have retrospective operations. Legal Maxim "nova constitutio futuris formam imponere debet non praeteritis", i.e. 'a new law ought to regulate what is to follow, not the past', contain a principle of presumption of prospectively of a statute.

23 & 24 xxx xxx xxx

25. A Constitution Bench of this court speaking through one us, Dr. Justice A.K.Sikri, in the case of The Commissioner of Income Tax (Central 1 New Delhi) Vs. Vatika Township Pvt Ltd., 2015 (1) SCC 1, while considering as to whether Proviso inserted in Section 113 of Income Tax Act w.e.f. 01.06.2002 is prospective or clarificatory/retrospective noticed the general principles

concerning retrospectivity. Following was laid down by the Constitution Bench in Paras 28, 29 and 33:

"28. Of the various rules guiding how legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities.

Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. As was observed in Phillips v. Eyre6, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law.

29. The obvious basis of the principle against retrospectivity is the principle of "fairness", which must be the basis of every legal rule as was observed in L'Office Cherifien des Phosphates v. Yamashita Shinnihon Steamship Co. Ltd. Thus, legislations which modified accrued rights or which impose obligations or impose new duties or attach a new disability have to be treated as prospective unless the legislative intent is clearly to give the enactment a retrospective effect; unless the legislation is for purpose of supplying an obvious omission in a former legislation or to explain a former legislation. We need not note the cornucopia of case law available on the subject

because aforesaid legal position clearly emerges from the various decisions and this legal position was conceded by the counsel for the parties. In any case, we shall refer to few judgments containing this dicta, a little later.

33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas, while considering the nature of amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)

"8. ... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."

26. A two Judge Bench, speaking through one of us, Dr. Justice A. K. Sikri in Jayam and company Vs. Assistant Commissioner & Ors., (2016) 15 SCC 125, again reiterated the broad legal principles while testing a retrospective statute in Paragraphs 14 and 18 which is to the following effect:

"14. With this, let us advert to the issue on retrospectivity. No doubt, when it comes to fiscal legislation, the legislature has power to make the provision retrospectively. In R.C. Tobacco (P) Ltd.

v. Union of India, this Court stated broad legal principles while testing a retrospective statute, in the following manner: (SCC pp. 73738 & 740, paras 2122 & 28)

"(i) A law cannot be held to be unreasonable merely because it operates retrospectively;

(ii) The unreasonability must lie in some other additional factors;

(iii) The retrospective operation of a fiscal statute would have to be found to be unduly oppressive and confiscatory before it can be held to be unreasonable as to violate constitutional norms;

(iv) Where taxing statute is plainly discriminatory or provides no procedural machinery for assessment and levy of tax or that is confiscatory, courts will be justified in striking down the impugned statute as unconstitutional;

(v) The other factors being period of retrospectivity and degree of unforeseen or unforeseeable financial burden imposed for the past period;

(vi) Length of time is not by itself decisive to affect retrospectivity." (Jayam and Co. case1, SCC Online Mad para 85)

18. The entire gamut of retrospective operation of fiscal statutes was revisited by this Court in a Constitution Bench judgment in CIT v. Vatika Township (P) Ltd. in the following manner: (SCC p. 24, paras 3335)

"33. A Constitution Bench of this Court in Keshavlal Jethalal Shah v. Mohanlal Bhagwandas, while considering the nature of

amendment to Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act as amended by Gujarat Act 18 of 1965, observed as follows: (AIR p. 1339, para 8)

'8. ... The amending clause does not seek to explain any pre-existing legislation which was ambiguous or defective. The power of the High Court to entertain a petition for exercising revisional jurisdiction was before the amendment derived from Section 115 of the Code of Civil Procedure, and the legislature has by the amending Act not attempted to explain the meaning of that provision. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act.'

34. It would also be pertinent to mention that assessment creates a vested right and an assessee cannot be subjected to reassessment unless a provision to that effect inserted by amendment is either expressly or by necessary implication retrospective. (See CED v. M.A. Merchant.)

35. We would also like to reproduce hereunder the following observations made by this Court in Govind Das v. ITO, while holding Section 171(6) of the Income Tax Act to be prospective and inapplicable for any assessment year prior to 141962, the date on which the Income Tax Act came into force: (SCC p. 914, para 11)

'11. Now it is a well settled rule of interpretation hallowed by time and sanctified by judicial decisions that, unless the terms of a statute

expressly so provide or necessarily require it, retrospective operation should not be given to a statute so as to take away or impair an existing right or create a new obligation or impose a new liability otherwise than as regards matters of procedure. The general rule as stated by Halsbury in Vol. 36 of the Laws of England (3rd Edn.) and reiterated in several decisions of this Court as well as English courts is that

"all statutes other than those which are merely declaratory or which relate only to matters of procedure or of evidence are prima facie prospective and retrospective operation should not be given to a statute so as to affect, alter or destroy an existing right or create a new liability or obligation unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.""

13. Following the aforementioned judgments of the

Hon'ble Apex Court, I have carefully examined the 2019

Regulations. In the said Regulations, there is no express

provision in the amendment giving effect to the amended 2019

Regulations retrospectively. In this regard, it is well established

principle in law that, if a right created in favour of any person,

whether they are property rights or rights arising from a

transaction in the nature of a contract or rights protected under

a statute, are to be taken away by any legislation or by an

executive order, then such legislation or executive order will

have to say so specifically by giving its provisions a retrospective

effect. It is a cardinal principle of construction that every

statute/amendment made to the existing statute, must be

prospective in nature, unless it is expressly or by necessary

implication made to have retrospective operation. In this regard,

I find force in the submission made by the learned Senior

Counsel appearing for the respondent-BDA and the learned

Additional Government Advocate. In the case of

VIJAYALAKSHMI RICE MILLS (supra), Hon'ble Apex Court at

paragraph 5, held as follows:

"5. Mr. Nariman appearing on behalf of the appellants has laid great emphasis on the word "substituted" occurring in clause 2 of the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 and has urged that the claim of the appellants cannot be validity ignored Elaborating his submission, counsel has contended that as the prices fixed by the Government are

meant for the entire season, the appellants have to be paid at the controlled price as fixed vide the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964, regardless of the dates an which the supplies were made. We cannot accede to this contention. It is no doubt true that the literal meaning of the word "substitute" is "to replace' but the question before us is from which date the substitution or replacement of the new Schedule took effect. There is no deeming clause or some such provision in the Rice (Andhra Pradesh) Price Control (Third Amendment) order, 1964 to indicate that it was intended to have a retrospective effect. It is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity, may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disability or obligations or impose new duties in respect of transactions which were complete at the time the Amending Act came into force. (See Mani Gopal Mitra v. The State of Bihar"."

14. In the case of N.K. BAJPAI (supra), Hon'ble Apex

Court elaborately discussed about the test to be adopted with

regard to the law that operates retro-actively. The observation

made at paragraph 58 to 62 of the judgment, reads as under:

"58. Now, we shall proceed to examine the merits of the contention raised that the provisions of Section 129(6) of the Customs Act cannot be given effect to retrospectively. The argument advanced is that the appellants were enrolled as advocates when the provisions of Section 129(6) were not on the statute book. After ceasing to be members of the Tribunal and starting their practice as advocates, such a bar was not operative. Now, after the lapse of so many years, their right to practice before such Tribunals cannot be taken away and to that extent, in any case, the provisions of Section 129(6) cannot be made retrospective.

59. As already noticed by us above, the right to practice law is a statutory right. The statutory right itself is restricted one. It is controlled by the provisions of the Advocates Act, 1961 as well as the rules framed by the Bar Council in that Act. A statutory right cannot be placed at a higher pedestal to a fundamental right. Even a fundamental right is subject to restriction and control. At the cost of repetition, we may notice that it is not possible to imagine a -right without restriction and controls in the present society. When the appellants were enrolled as advocates as well as when they started practicing as advocates, their right was subject to the limitations under any applicable Act or under the constitutional limitations, as the case may be.

60. One must clearly understand a distinction between a law being enforced retrospectively and a law that operates retroactively. The restriction in the present case is a clear example where the right to practice before a limited forum is being taken away in presenti while leaving all other forums open for practice by the appellants. Though such a restriction may have the effect of relating back to a date prior to the presenti. In that sense, the law stricto sensu is not retrospective, but would be retroactive. It is not for the Court to interfere with the implementation of a restriction, which is otherwise valid in law, only on the ground that it has the effect of restricting the rights of the people who attain that status prior to the introduction of the restriction. It is certainly not a case of settled or vested rights, which are incapable of being interfered with. It is a settled canon of law that the rights are subject to restrictions and the restrictions, if reasonable, are subject to judicial review of a very limited scope.

61. We do not find any reason to accept the submission that enforcement of the restriction retroactively would be impermissible, particularly in the facts and circumstances of the present case.

62. We may refer to the case of R.V. Inhabitants of St,. Mary,. Whitechapel [(1881) 12 QB 149] whereby under Section 2 of the Poor Removal Act, 1846, 'No woman residing in any parish with her husband at the

time of his death shall be removed... from such parish, for twelve calendar months after his death, if she so long continue a widow.' In this case, a widow was sought to be removed within such period of 12 months, on the grounds that her husband had died before the coming into force of that Act. The question was whether that provision applied retrospectively. Lord Denman, C.J, held that 'the statute is, in its direct operation, prospective, as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisites for its action is drawn from its time antecedent to its passing'. Thus, the provision was held not to be retrospective.

Examined the case of the appellants from this angle, it would mean that the law is not at all retrospective even though the -retirement or date of ceasing to be a member of the Tribunal may have been on a date anterior to the date of passing of the law."

15. In the case of HOWRAH MUNICIPAL

CORPORATION (supra), the question before the Hon'ble Apex

Court is with regard to grant of sanction of construction of three

additional floors to the multistoreyed complex, which is already

constructed up to four floors belonging to the respondent

therein, and in the said case, the Hon'ble Apex Court at

paragraph 29 and 30, held as follows:

"29. It has been urged very forcefully that the sanction has to be granted on the basis of Building Rules prevailing at the time of submission of the application for sanction. In the case of Usman Gani (supra), the High Court negatived a similar contention and this Court affirmed the same by observing thus:

"In any case, the High Court is right in taking the view that the building plan can only be sanctioned according to the building regulations prevailing at the time of sanctioning of such building plans. At present the statutory bye-laws published on 30.4.1988 are in force and the fresh building plans to be submitted by the petitioners, if any, shall now be governed by these bye-laws and not by any other bye-laws or schemes which are no longer in force now. If we consider a reverse case where building regulations are amended more favourably to the builders before sanctioning of building plans already submitted, the builders would certainly claim and get advantage of the regulations amended to their benefit."

30. This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This Court has envisaged a reverse situation that if subsequent to the making of the application for sanction, Building Rules, on the date of sanction, have been amended more favourably in favour of the person or

party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying."

16. Further, in the said ruling, the Hon'ble Apex Court,

while allowing the appeal preferred by the Appellant-Corporation

therein, at paragraph 38, has observed thus:

"38. In the matter of sanction of buildings for construction and restricting their height, the paramount consideration is public interest and convenience and not the interest of a particular person or a party. The sanction now directed to be granted by the High Court for construction of additional floors in favour of respondent is clearly in violation of the amended Building Rules and the Resolution of the Corporation which restrict heights of buildings on GT Road. This Court in its discretionary jurisdiction under Article 136 of the Constitution cannot support the impugned order of the High Court of making an exception in favour of the respondent company by issuing directions for grant of sanction for construction of building with height in violation of the amended Building Rules and the resolution of the Corporation passed consequent thereupon."

17. The Constitution Bench of the Hon'ble Apex Court in

the case of K.S. PARIPOORNAN (supra), at paragraphs 91 and

92 of the judgment, held as follows:

"91. This observation was made as the literal and abstract construction would have resulted in hardship. Any legislation specially a legislation enacted to mitigate social mischief is normally construed to serve the public good. Principles of interpretation are only the guideline, they are not conclusive. The sure and safe way is to interpret the provision on the necessity and requirement as appears from the objective of the Act and the words used by the legislature. Reliance was placed on observations made by Lord Goffe in Alexander v. Mercourisl9 distinguishing Whitechapel case1 that a statute, "would not be operating prospectively if it creates new rights and duties arising out of past transaction". This decision turned more on the language of the section than the principle that the prospectivity of a provision is not affected even if it draws partly from past transactions.

Section 1(1) of the Defective Premises Act, 1972 provided that a person "taking on work for or in connection with the provision of a dwelling" owes a duty to see that the work is done properly, "so that as regards that work the dwelling will be fit for habitation when completed". The question that arose was "whether this duty applied where the work was taken on before the commencement of the

1972 Act but completed after. It was held that the substance of the matter was the initial act of 'taking on' the work, therefore, the duty could not be said to arise unless the 'taking on' occurred after the commencement of the Act." The decision thus turned on the explicit language used in the section. No exception can be taken to the observation 1(1848) 12 QB 120, 127: 17 LJMC 172: 116 ER 811 19 (1979) 3 All ER 305 :(1979) 1 WLR 1270 that a statute creating new right on past transactions cannot be held to be prospective. How does this principle help the State? Section 23 (1-A) does not create any right on past transactions. Misconception appears to be prevailing due to fixation of the period for which additional compensation shall be paid. The two termini, that is, issuance of notification under Section 4(1) and publication of declaration under Section 6 are erroneously understood as creating right or furnishing starting point from which the section shall apply. The right which is substantive in nature is to get additional compensation at the rate of twelve per cent. The right is not created on past transactions. It operates in future, that is, confers benefit of additional compensation from the date it came into force and not from a date prior to coming into force of the provisions.

92. A substantive law is held to be prospective as a matter of legal policy since it is founded on public policy that no right be so created as to work to the disadvantage for whom it is created as if it be so, "it would be betrayal

of what the law stands for" (Bennion on Statutory Interpretation). Section 23 (1-A) does not suffer from such betrayal. It is just otherwise. It instead of operating to disadvantage promotes the law and fairness by extending the benefit provided by the section to all such proceedings which are pending before the Court under Section 18. It ensures uniformity and equality."

18. Following the aforementioned dictum of the Hon'ble

Apex Court and applying the same to the case on hand wherein

the petitioner herein has made application, seeking sanction of

plan on 23rd June, 2010 and therefore, the said sanction was

granted partially and thereafter, it was modified subsequently, as

per the approval made by the respondent-BDA on 09th May,

2018, and therefore, I am of the view that the second application

seeking to revise the original sanction plan cannot be considered

at the later stage after publishing of the amended 2019

Regulations. Therefore, I am of the view that the judgment

relied upon by the learned Senior Counsel appearing for the

petitioner in the case of STATE BANK'S STAFFS UNION