@JUDGMENTTAG-ORDER
G.C. Bharuka, J.@mdashThe question raised in this present Writ Petition concern''s the legality and propriety of allowing a part of the Indian Air Force area to a commercial establishment like the third respondent, A.B. Corporation Limited (hereinafter in short the "the Company") on rental basis for conducting certain events connected with a purely commercial venture, namely, the "Miss World Beauty Pageant, 1996"
2. The present Writ Petition has been filed as a public interest litigation. The petitioner, apart from being a practicing Advocate of this court and sitting MLA, is an active social worker.
3. The third respondent is a company incorporated and registered ''under the Companies Act, 1956. It is holding the 1996 beauty pageant at Bangalore. As is evident from the programme announced by it (Annexure A), the events of the pageant have already commenced from 11.11.1996 and are to continue till 24.11.1996. As per the said programme, three of the events namely, Carnival, Children''s Party and Coronation Ball were to take place at the grounds. Hotel Windsor Manor and the Palace grounds. But subsequently, as per the permission accorded by the second respondent, it was permitted to be held at the sports field at Head Quarters Training Command, Indian Air Force, Hebbal. It is the grant of this permission which is being assailed herein on various constitutional and legal grounds.
4. It is not in dispute that the beauty pageant in question is a purely commercial venture-conducted for gains and profits by a private commercial organisation. It is hardly intended to promote any public cause or ensure any public interest. It is more in the nature of an amusement for the participants drawn from the affluent section of the society from across the globe. In the case of Manila Jagran Manch v. State of Karnataka (WA No. 9173 of 1996 dd. 19.11.1996) wherein the holding of the pageant was challenged on various grounds, it has been field by the Division Bench that (pr.22):
"It has been conceded before us, by all concerned that the State Government cannot assist and co-operate in folding Beauty Pageant. The occasion cannot be termed to be either any social, cultural or a sports event. From the pleadings of the parties and the arguments addressed, we have come to the conclusion that the said function is a purely commercial adventure of respondent No. 2. There can be a difference of opinion regarding the proclaimed object for which the pageant was being held, but there is no difference of opinion that the said function is not function of the State."
5. In the Statement of objections filed by the Indian Air Force authorities, it has been stated that the parade ground or the play ground which has been made available to the third respondent company for holding certain events of beauty pageant "is located in the domestic area around which married accommodation of Officers, Airmen, regimental shopping complex and a sick quarter are situated. The security of the Training Command Building is always guarded, and no person, more so, families of defence personnel and civilians can claim or seek entry in this area." It has been further stated that "the play ground in question has been cordoned by 8'' high metallic wall and the entry and exit to the venue is strictly through the Entry Pass and regulated under strict security. The Command HQ Building where defence documents and the offices of the Air Force Officers are situated has been provided with the Special Guards." It has also been stated that "no unauthorised person can seek entry into the area of importance at any cost. Further, the domestic area is also usually guarded to ensure that no unauthorised person especially those visiting the area in question for the said event gets access in any way."
6. The further facts which has come on record pursuant to court''s query and documents filed on behalf of the second respondent are also of material consequence for determining the issues involved herein. The records produced by the second respondent disclose that the Indian Air Force grounds have been made available to the third respondent company on the basis of an alleged approval accorded by the DEFENCE MINISTRY.
7. The fax message dated 04.11.1996 which was sent by the office of the Chief of the Air Staff contained a direction from the Ministry of Defence for merely providing necessary assistance to the State Government in connection with holding of the beauty pageant. The directions were to the following effect:
Ministry of Defence
Sub: Miss World Pageant to be Held at
Bangalore in November 1996.
A copy of the letter dated 30th September 1996 from Shri R. Roshan Baig. Minister of State for Home and Wakfs, Government of Karnataka, together with enclosures thereto addressed to Defence Secretary, regarding assistance on the occasion of the World Pageant being held at Bangalore in November 1996, is enclosed. It has been decided with the approval of Raksha Mantri that necessary assistance may be provided to the State Government, on normal terms and conditions. Suitable instructions may please, therefore, be issued.
Sd/-
(Vinod Rai)
Joint Secretary (Air)
4th November 1996."
8. According to the second respondent, it was pursuant to the said direction from the Ministry of Defence, that they have provided the defence lands to third respondent company. It has been so done on the date of receiving the said direction itself i.e., 7.11.1996 under a communication addressed to the fourth respondent Minister of State for Home and Wakfs, Government of Karnataka with a simultaneous handing over of a copy thereof to the Chief Executive Officer of the respondent company. The communication is to the following effect:
HO Training Command
Indian Air Force
JC Nagar Post
Bangalore - 560 006
TC/612/AOC-in-C 07 Nov 96
Shri R. Roshan Baig
Honourable Minister of State
for Home and Wakfs
Government of Karnataka Vidhana Soudha,
Bangalore - 560 001
MISS WORLD PAGEANT 1996
Dear Sir,
1. Please refer your letter dated 24th Oct''96 addressed to the AOC-in-C.
2. As requested by you, the sports field at HQ Training Command, IAF, Hebbal is being made available to M/s ABCL for conducting the following sub-events connected with the pageant:
(a) The Bangalore Carnival on 12 Nov. 96.
(b) Tea with School children including spastic children on 14 Nov. 96.
(c) Coronation Ball on 23rd/24th Nov. 96.
3. The rentals for the sports field as per the normal Govt. rates as assessed by the Defence Estates Officer are to be deposited by M/s ABCL with the Govt. Treasury in advance. M/s. ABCL will be responsible for all logistical management and proper conduct of the event;
4. Arrangements may please be made for providing adequate external security and traffic control outside the Air Force Campus. The Internal Security within the Air Force Campus will be ensured by the IAF and assistance, if required, will be sought from the civil Police
5. The letter is issued under directions of Air Headquarters as approved by Ministry of Defence, Govt. of India.
Yours sincerely,
Sd/- (SAB Naidu)
Air Vice Marshal
Senior Officer
I/c Administration"
9. From the facts and communication noticed above, what transpires is that in the context of holding of a world pageant at Bangalore the Defence Ministry had merely directed the Air Force authorities at Bangalore that "necessary assistance may be provided to the State Government on normal terms and conditions." There is no whisper in the Defence Ministry''s letter to make available the defence lands, either by way of lease or licence, to the third respondent company for conducting any of its sub-events connected with the commercial venture undertaken by it. Nothing has been brought on record to show that the third respondent company had any point of time approached the Central Government or the Indian Air Force authorities seeking their permission for the said purpose. I am quite at a loss as to how keeping the said directions of the Ministry of Defence, the second respondent or for that, sake, the Air Force Authorities at Bangalore could have thereafter directly entered into a dialogue with the third respondent company and after assessment accepted the ground rents and made available a part of the defence grounds putting substantial strains on the safety measures of sensitive defence establishments. Even if it be conceded that taking care of the safety and security of the defence establishments is prime and ultimate duty of the defence personnel and they have taken all cares to ensure the same which, considering the high traditions and performance standards maintained by our defence forces, cannot even for a moment be doubted, the question to be attended to herein particularly, in the context of the developments noticed herein before are of vital constitutional importance, particularly, in the context of Articles 298 and 299 of the Constitution of India.
10. The said two Articles of the Constitution of India reads as under:
"Article 298. The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purposes.
Provided that-
(a) the said executive power of the Union shall, in so far as such trade of business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and
(b) the said executive powers of each State shall, in so far as , such trade of business or such purpose is not one with respect to which State Legislature may make laws, be subject to legislation by Parliament.
Article 299. (1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power, shall be executed on behalf of the President or the Governor by such persons and in such manner as he may direct or authorise.
(2) Neither the President nor the Governor shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof."
11. In the case of
"We feel that some reasonable meaning must be attached to Article 299(1). We do not think the provisions were inserted for the sake of mere form. We feel they are to safeguard Government against unauthorised contracts. If in fact a contract is unauthorised or in excess of authority it is right that Government should be safeguarded."
12. It is now well settled that the provisions of Article 299 of the Constitution which are mandatory in character require that a contract made in the exercise of the executive power of the Union or of a State must satisfy three conditions viz. (i) it must be expressed to be made by the President or by the Governor of the State, as the case may be; (ii) it must be executed on behalf of the President or the Governor, as the case may be, and, (iii) its execution must be by such person and in such manner as the President or Governor may direct or authorise. Failure to comply with these conditions nullifies the contract and renders it void and unenforceable. (See decisions of the Supreme Court in
13. It will also be useful to refer to the judgment of the Supreme Court in
"There is no question of estoppel or ratification in a case where there is contravention of the provisions of Article 299(1) of the Constitution. The reason is that the provisions of Section 175(3) of the Government of India Act and the corresponding provisions of Article 299(1) of the Constitution have not been enacted for the sake of mere form but they have been enacted for safeguarding the Government against unauthorised contracts. The provisions are embodied in Section 175 of the Government of India Act and Article 299(1) of the Constitution on the ground of public policy - on the ground of protection of general public - and these formalities cannot be waived or dispensed with."
14. Keeping in view the said aspects, under order dated 13.11.1996, I had directed the first and second respondent to file additional Statement of Objections in the light of the following questions:
"(i) Whether, there is any established procedure coupled with appropriate guidelines or norms for making available the lands of the Indian Air Force to civilians and particularly commercial establishments like 3rd respondent.
(ii) Who is the competent authority to take final decision with regard to grant of lease, of such lands, and,
(iii) If in normal course or is not available to civilians and commercial establishments, then what are the exceptional circumstances which has persuaded the competent authorities to lease out the Indian Air Force lands to the 3rd respondent."
15. Despite grant of opportunities no additional statement has been filed on behalf of the second respondent as required. Instead Mr. Shailendra Kumar, learned CGSC appearing for respondent No. 1 & 2 has submitted that the Defence grounds in question has been given to the respondent company as per the provisions contained in the Cantonment Act, 1924 read, with Rules framed u/s 280 thereof, namely, Cantonment Land (Administration) Rules, 1937.
16. Mr. Jayaram, learned Senior Advocate appearing for the respondent company, fairly conceded that no application was filed on behalf of the said company either before the Central Government or the Air Force authorities at Bangalore for making available the Defence lands for conduct of any of the events connected with holding of "Miss World Beauty Pageant, 1996."
17. On 19.11.1996, Sri R. Roshan Baig. Hon''ble Minister of State has come on record through a personal affidavit making startling disclosures which gives a new dimension to the entire transaction making the 1st and the 2nd respondents answerable to the whole nation and the public at large on certain vital issues having bearing on national security, management and use of defence properties and the dignity and pride of our armed forces.
18. The Minister has stated on oath that "it is not factually correct to state that the sports field at the Headquarters Training Command, Indian Force, Hebbal, was made available for functions organised by the third respondent on the 12th, 14th and 23rd/24th November 1996 at my instance."
19. In paragraphs 3 & 4 of his affidavit, the Minister has given a graphic description of the correspondences which had taken place between him and the Defence Secretary, Government of India, Air Marshal K.B. Singh and Sri Naidu, Air Vice-Marshal Xerox copies of the said correspondences have also been placed on record by the learned Advocate General who has appeared for the fourth respondent. These paragraphs read as under:
"3. On the 30th September 1996 I addressed a letter to the Defence Secretary, Government of India, New Delhi, stating that the carnival to be organised by the 3rd Respondent would incorporate the Armed Forces show and that the 3rd Respondent had approached Brig. I.J. Singh, Commander K.K. & C. Area to present the Armed Force Show. Further, in that letter is requested the Defence Secretary to send clearance to the Area Office at Madras and the Sub-Area Office at Bangalore to extend to full support and present a spectacular armed forces show. In my submission, this letter cannot be construed as a request on behalf of the 4th Respondent to the authorities concerned to make available the Stadium. The response to the above said letter was by Fax message dated 4.11.1996 sent by the Joint Secretary, Air, Ministry of Defence, which conveyed that the Ministry has decided that necessary assistance be provided to the State Government on normal terms and conditions, the Hon''ble Court may be pleased to hold that there is no reference whatsoever in this communication to the 3rd Respondent. On the 24th October, I addressed a letter to the Air Marshal K.B. Singh, Air Officer Commanding in Chief. Headquarters Training Command, I.A.F. which stated that the 3rd Respondent was hosting the Miss World Contest from 10th November to 3rd November, and that for an event of such magnitude, the assistance of the Air Force Authorities was required and a request was made accordingly. This was a routine letter written pursuant to the request which the 3rd Respondent had made to take all steps for maintenance of law and order so that the programme could be held smoothly. The request to the Air Force Authorities was to render assistance only and no more. In my respectful submission, this letter cannot be construed as recommending the case of the 3rd Respondent. To the aforesaid letter of the 24th October, 1996, addressed to me requested to indicate the arrangements made by the State Government for the conduct of the contest. As the State Government has not made any arrangements, except arrangements related to law and order and allied matters, no reply was sent to the aforesaid letter. The correspondence in this regard is what has been referred to hereinbefore.
4. I submit that the letter of 7th November, 1996 written by Shri Naidu, Air Vice Marshal, clearly states that rentals for the sports field as per the normal Government rates are to be deposited by the 3rd Respondent, who would also be responsible for all logistical management and proper conduct of the event."
20. Therefore on facts, as found above, it has to be concluded that:
(i) no application was filed by the 3rd respondent company either before the Central Government or any of the Air Force Authorities seeking permission to use the lands under the occupation of the Indian Air Force.
(ii) no permission was accorded by the Defence Ministry for the said purpose, and,
(iii) the State Government or its Minister of State had not sent any request to the Air Force Authorities for the said purpose.
21. THEREFORE, there is no escape from holding that the Air Force Authorities in their communication dt. 7.11.1996, which has been quoted above in extenso, had made available the defence lands to the respondent company of their own on certain factually wrong premises, namely-
(a) that request was made to the said effect on behalf of the State Government or its Minister, and,
(b) that the Defence Ministry had granted permission for the said purposes.
22. In the said factual background, now let me examine the question of legal competence of the Air Force Authorities at Bangalore to offer and make available the defence lands to the third respondent company to perform their part of the commercial activities with the luxury of availing spectacular armed forces show specially organised for the participants of the beauty pageant.
23. Admittedly, the Air Force area at Hebbal has not been declared a "Cantonment" u/s 3 of the Cantonment Act, 1924. Therefore, the "Cantonment Land (Administration) Rules, 1937 (hereinafter, in short "the Rules") wilt not perse have any application to the lands in question. But, according to the executive instructions, contained in the "Compendium of Important Instructions on Land Matters" published by the Ministry of Defence (p.88) the lands outside the Cantonment has to be treated as analogous to Class "A-1" lands as defined under the Rules. The management of such land remains with the head of the department or the service concerned for whom the land it held. According to these instructions, military lands outside Cantonment can, with the approval of the Government, be placed by the head of the department under the management of the Military Estates Officer.
24. Under Rule 5(i) of the Rules, Class "A-1" land is defined as the "land which is actually used or occupied by the Military Authorities, for the purposes of fortification, barracks, stores, arsenals, aerodromes, bungalows for military officers which are the property of Government, parade grounds, military recreation grounds, rifle ranges, grass farms, dairy farms, brick fields, soldiers and hospital gardens as provided for in paragraphs 419, 421 and 425 of the Regulations for the Army in India and other official requirements of the Military Authorities."
25. Rule 14(3) & 14(5) of the Rules specifically provides that:
"Rule 14(3). Land in (Class "A" shall not be used or occupied for any purpose other than those stated in Sub-rule (i) of Rule 5 without the previous sanction of the Central Government or such authority as they may appoint in this behalf:
Provided that the temporary use of Class "A" (i) land which is under the management of the Military Authorities may be permitted by those Authorities for the storage of materials by contractors for the purpose of carrying out Government work. Such permission shall be given in writing by the officer of the Military Engineer Services in charge of the work and shall remain in force only for such period as he may consider reasonable.
Rule 14(5). No building of any kind, either permanent or temporary, shall be erected on Class "A" land except with the previous sanction of, and subject to such conditions as may be imposed by, the Central Government or by such other authority as the Central Government may appoint for the purpose:
Provided that:
(a) a temporary construction may, with the previous sanction of the Officer Commanding the Station, be allowed on Class "A" (2) land licensed by ''the Military Estates Officer under Sub-rule (4); and
(b) a temporary construction may, with the previous sanction of the authority sanctioning the lease, be allowed on Class "A"
2) land leased by the Military Estates Officer under Sub-rule (4).
26. From the above it is clear that it was not within the competence of the Air Force Authorities at Bangalore to permit the use of the Defence lands by the third respondent company even for consideration or otherwise. The alleged agreement entered into between the second and the third respondents at the instance of the Vice Air Marshal through correspondence and mutual conduct is clearly in contravention of Article 229 of the Constitution of India and is therefore, void and unenforceable in law.
27. Section 45 of the Air Force Act, 1950 provides for punishment for the officer governed by the Act who behave in a manner unbecoming of his position and the character expected of him. Similarly, Section 52 of this Act creates offences in respect of property and Clause (f) thereof prohibits doing of things with the intent to defraud, or to cause wrongful gain to one person or wrongful loss to another person. Section 57 of the Act has declared the act of falsifying official documents and false declarations to be an offence. I find Clause (a) of the Section to be material for the present purpose which is quoted hereunder it reads:
"Section 57 - Any person subject id this Act who commits any of the following offences, that is to say.
(a) in any report, return, list, certificate, book or other document made or signed by him, or the contents of which it is his duty to ascertain the accuracy, knowingly makes, or is privy to the making of, any false or fraudulent statement; or
(b)...............
(e)...............
shall, on conviction by court-martial, be liable to suffer imprisonment for a term which may extend to fourteen years or such less punishment as is in this Act mentioned."
28. I have referred to the aforesaid penal provisions contained under the Air Force Act only to highlight the gravity of the happenings and the casualness with which the officers of the Air Force have dealt with the properties of the sensitive defence establishments. In my opinion, the entire issue needs to be inquired into and investigated by the appropriate administrative and statutory authorities so as to arrive at logistical conclusions to ensure that such illegalities do not recur. It is also desirable that the public should "be taken into confidence by clarifying as to how all these things have happened and who is really responsible for the same. The administrative lapses tantamounting to offences in civil administration both at the hands of political as well as administrative executives which are under investigations at various stages and levels have already rocked the nation, severely shaking the confidence of the public in the administrative machinery. But if similar vices are allowed to set in their roots in the defence forces as well, then it may endanger the very freedom and the security of the nation: I am really bewildered as to how anybody was able to manage and manipulate the Air Force Authorities to secure the availability of the defence lands on a clear floatation of all norms, the statutory requirements and security measurers in order to help a high profiled commercial concern.
29. For the reasons aforesaid, I declare that the agreement entered into between the second and the third respondent is void and unenforceable. Consequently, it is directed that the third respondent will not be permitted to hold any of its events in or upon the defence properties in question. The materials, if any, belonging in the third respondent which may be found laying on the defence lands should be immediately removed therefrom at the cost of the said respondent under strict supervision of the Air Force Authorities without loss of time.
30. Writ Petition is accordingly allowed but under the facts and circumstances, there will be no order as to costs.
