Posted On by &filed under Supreme Court of India.


Supreme Court of India
Girish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011
Bench: R.V. Raveendran, H.L. Gokhale
                                                                                  REPORTABLE


               IN THE SUPREME COURT OF INDIA

                 CIVIL APPELLATE JURISDICTION


                  CIVIL APPEAL NOS. 198-199 OF 2000



     Shri Girish Vyas & Anr.                                      ...Appellants

                                     Versus

     The State of Maharastra & Ors.                                   ...Respondents



                                     WITH

                    CIVIL APPEAL NO. 2450 OF 2000



     Dr. Laxmikant Madhav Murudkar (since deceased)

     Through LRs Mrs. Ranjana Laxmikant Murudkar  & Ors.    ...Appellants

                                     Versus

     The State of Maharastra & Ors.                                ...Respondents



                                     WITH

                CIVIL APPEAL NOS. 2102-2103 OF 2000



     Shri Manohar Joshi                                           ...Appellants

                                     Versus

     The State of Maharastra & Ors.                                   ...Respondents



                                     WITH

                    CIVIL APPEAL NO. 2120 OF 2000



     Shri Ravindra Murlidhar Mane                                 ...Appellants

                                     Versus

     The State of Maharastra & Ors.                               ...Respondents



                                     WITH

                CIVIL APPEAL NOS. 2105-2106 OF 2000


                                              2





        Shri Rama Nath Jha                                            ...Appellants

                                            Versus

        The State of Maharastra & Ors.                                           ...Respondents



                                                   WITH 

                      CIVIL APPEAL NOS. 196-197 OF 2000



        Maruti Raghu Sawant & Ors.                                            ...Appellants

                                            Versus

        The State of Maharastra & Ors.                                           ...Respondents





                                 J  U  D  G  E  M  E  N  T



H.L. Gokhale J.



                What is the nature and significance of the planning process for a 


large  Municipal town area?   In that process, what is the role  of  the Municipal 


Corporation,   which   is   the   statutory   planning   authority?     Can   the   State 


Government  interfere  in  its decisions  in  that behalf  and  if  so, to what extent?  


Does the State Government have the power to issue instructions to the Municipal 


Corporation   to   act   in   a   particular   manner   contrary   to   the   Development   Plan 


sanctioned by the State Government, and that too a number of years after the 


Municipal Corporation having taken the necessary steps in consonance with the 


plan?    Can the State Government  instruct a Municipal  Corporation  to shift  the 


reservation for a public amenity such as a primary school on a plot of land, and 


also   instruct   it   to   grant   a   development   permission   for   residential   purposes 


thereon without modifying the Development Plan?  Could it still be considered as  


                                                 3


an   action   following   the   due   process   of   law   merely   because   a   provision   of 


Development  Control Rules is relied  upon, whether it is applicable  or not?   Or 


where   the   Municipal   Corporation   is   required   to   take   such   contrary   steps, 


supposedly on the instructions of the concerned Minister / Chief Minister, for the 


development of a property for the benefit of his relative, would such instructions  


amount   to   interference/mala  fide  exercise  of  power?     Is   it   permissible   for   the 


landowner   and   developer   to   defend   the   decision   of   the   Government   in   their 


favour   on   the   basis   of   a   provision   in   the   erstwhile   Town   Planning   Scheme   as 


against the purpose for which the land is reserved under the presently prevalent  


Development Plan?  Is it permissible for the landowner and developer to explain 


and justify such a favourable Government decision by relying upon the authority 


of   the   Government   under   another   section   of   the   statute   which   is   not   even 


invoked by the Government?  What inference is expected to be drawn in such a  


situation   with   respect   to   the   role   played   by   the   ministers   or   the   municipal 


officers?  What orders are expected to be passed when such facts are brought to 


the notice of the High Court in a Public Interest Litigation?   These are some of  


the   issues   which   arise   in   this   group   of   Civil   Appeals   in   the   context   of   the  


provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short 


MRTP Act) concerning a property situated in Pune Municipal area.     



2.               These   appeals   arise   out   of   two   writ   petitions   in   public   interest 


leading   to   concurrent   judgments   and   a   common   order   dated   6th  -   15th  March 


1999 passed by a Division Bench of the Bombay High Court.  These writ petitions 


bearing nos.4433 and 4434 of 1998 were filed respectively by one Vijay Krishna 


                                                 4


Kumbhar, a journalist and one Nitin Duttatraya Jagtap, a Municipal Corporator of  


Pune.  The petitions pointed out that a particular plot of land bearing Final Plot  


No.110   (F.P.   No.   110   for   short),   and   admeasuring   about   3450   sq.   meters, 


situated   on   Prabhat   Road   in   the   Erandwana   area   of   the   city,   was   initially  


reserved  for  a public  purpose  namely, a garden/playground,  and subsequently 


for a primary school.  They further pointed out that a number of years after the 


Pune   Municipal   Corporation   (hereinafter   referred   to   as   PMC)   took   all   the 


necessary   steps   to   acquire   this   particular   plot   of   land,   the   landowner   one   Dr.  


Laxmikant   Madhav   Murudkar   appointed   M/s   Vyas   Constructions,   a   proprietary 


concern   of   one   Shri   Girish   Vyas   (the   appellant   in   Civil   Appeal   No.198-199   of 


2000) as the developer of the property.  Shri Girish Vyas is the son-in-law of Shri 


Manohar Joshi who was the Chief Minister of Maharashtra from 14.03.1995 till 


January 1999.   The petitioners contended that only because of the instructions 


from the Urban Development Department (UDD for short) which was under Shri 


Manohar Joshi, that in spite of the reservation for a primary school, the plot was  


permitted   to   be   developed   for   private   residences   flouting   all   norms   and 


mandatory  legal provisions.    They sought  to challenge  the building  permission 


which was issued by the PMC under the instructions of the State Government, by 


submitting   that   these   instructions   amounted   to   interference   into   the   lawful 


exercise   of   the   powers   of   the   Municipal   Corporation,   and   the   same   was  mala  


fide.   After hearing all concerned, the petitions were allowed, and an order has 


been   passed   to   cancel   the   Commencement   (of   construction)   certificates,   and 


Occupation Certificate, and to pull down the concerned building which has been 


                                                  5


constructed   in   the   meanwhile.     The   State   Government   has   been   directed   to 


initiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar 


Mane,   the   then   Minister   of   State   for   UDD,   and   the   then   Pune   Municipal 


Commissioner Shri Ram Nath Jha.



3.                Being aggrieved by this order, the present group of appeals have 


been filed:



(i)       Civil   Appeal   Nos.   198-   199/   2000  are   filed   by   the   developer   Shri   Girish 


Vyas and his proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450 


of   2000   is   filed   by   the   landowner   Dr.   Laxmikant   Madhav   Murudkar   (since 


deceased)   to   challenge   the   judgments   and   the   order   in   their   entirety.     Their 


submissions by and large are similar.  



(ii)      Civil Appeal Nos. 2102-2103 of 2000 are filed by Shri Manohar Joshi, the 


then Chief Minister, Civil Appeal Nos. 2105-2106 of 2000 are filed by Shri Ram 


Nath Jha who was the then Pune Municipal Commissioner, and Civil Appeal No. 


2120 of 2000 is filed by Shri Ravindra Murlidhar Mane, the then Minister of State, 


UDD.     These   appeals   seek   to   expunge   the   adverse   remarks   against   the 


appellants, and the order directing criminal investigation against them.  



(iii)     Civil Appeal Nos. 196-197 of 2000 are filed by Maruti Raghu Sawant and 


others who were the tenants in this property.  They contend that in the scheme 


prepared   by   the   developer,   they   were   to   become   owners   of   their   tenements 


whereas under the original reservation, they were to be evicted.  


                                               6


                We   may   note   at   this   stage   that   though   the   PMC   accepts   the 


judgment, it has no objection to the tenants continuing as tenants of PMC in the  


building which is constructed for accommodating them on a portion of the very 


plot of land.  The tenants, however, contend that if the plot of land is taken over  


by  PMC,  they  will   remain  mere   tenants  as  against   the  ownership   rights  which 


were   assured   to   them   by   the   developer   and   the   landlord,   and   are,   therefore, 


continuing to maintain their appeals.



4.              All   these   appeals   are   opposed   and   the   impugned   judgment   and 


order  are   defended  by   the  original   petitioners  as  well  as  by  the  PMC   and  the 


State Government.  It is relevant to note that the State of Maharashtra as well as 


PMC had opposed the writ petitions in the High Court, but they have not filed  


any appeals and have now accepted the judgment and order as it is.  Since, all 


these appeals are arising out of the same judgment and order, they have been 


heard and are being decided together, by treating the appeals filed by Shri Girish 


Vyas as the lead appeals.



        Facts leading to these appeals

        Reservation on F.P. No. 110 for a garden


5.              Dr. Laxmikant Madhav Murudkar (since deceased), appellant in Civil 


Appeal   No.   2450   of   2000   (hereinafter   referred   to   as   landowner)   owned   the 


property  bearing  F.P.  No. 110.   The Government of  Maharashtra sanctioned  a 


Development Plan for Pune City by publishing a notification dated 7.7.1966 in the 


official gazette dated 8.7.1966, which fixed 15.8.1966 as the date on which the  


said plan shall come into force.  (The said plan is hereinafter referred to as 1966 


                                                7


D.P. Plan).  Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a 


garden.     The   Plan   was   sanctioned   in   exercise   of   the   power   of   the   State 


Government under Section 10 of the then prevalent Bombay Town Planning Act 


1954 (1954 Act for short).  This notification stated that the PMC had passed the  


necessary resolution of its intention to prepare a Development Plan, carried out 


the necessary survey, considered the suggestions received from the members of 


the   pubic   under   Section   9   of   the   Act,   and   after   modifying   the   Plan   wherever  


found   necessary,   submitted   it   to   the   Government,   and   thereafter   the 


Government having consulted the Director of Town Planning, had in exercise of  


its power under Section 10 (1) and (2) of the Act, sanctioned the Development 


Plan.



6.               Subsequently,   the   1954   Act   was   repealed   and   replaced   by   the 


MRTP Act with effect from 11.01.1967.  However, by virtue of Section 165 (2) of 


MRTP Act, the 1966 D.P. Plan was saved.   Consequently, when the landowner  


applied  for the sanction of a layout in F.P. No.110, the same was rejected  by  


PMC.  Therefore, the landowner served on the State Government a notice dated 


8th May 1979 under Section 49 (1) of the MRTP Act, calling upon it to purchase  


the land and to "commence the proceedings for acquisition".  The notice stated  


that the F.P. No.110 was not acquired within the period of 10 years granted to 


the Planning Authority to implement the D.P. (for the Pune Municipal area, PMC 


is the Planning Authority).   It further stated that as per his understanding, the 


D.P. was under revision but the reservation on petitioner's F.P. No.110 had not  


been changed, and `the reservation will never be cancelled and the final plot will  


                                                 8


never be handed back' to him.   The State Government confirmed the purchase  


notice   under   Section   49   (4)   of   the   Act   by   its   letter   dated   5.12.1979.     The 


Government's   letter   informed   the   landowner   that   necessary   instructions   have 


been issued to the PMC, and he may approach their office.



        Steps for acquisition of F.P. No. 110



7.               The standing committee of the PMC thereafter passed a resolution 


on 5.1.1980 to initiate the proposal for acquisition.  The PMC then forwarded the 


proposal to the Collector of Pune on 9.5.1980 to take the steps for acquisition. 


On   27.8.1981,   the   State   Government   notified   the   land   for   acquisition   under 


Section   126   of   the   MRTP   Act   read   with   Section   6   of   the   Land   Acquisition   Act 


1894 (for short L.A. Act).  A Special Land Acquisition Officer (S.L.A.O. for short)  


was appointed to perform the functions of the Collector.  A notice informing the 


initiation   of   the   proceedings   under   the   L.A.   Act   as   required   under   Section   9  


thereof   was   issued   on   8.9.1981   seeking   claims   for   compensation.     The 


landowner replied to the notice, but did not challenge the acquisition.   He filed 


his   claim   statement   during   the   acquisition   proceeding,   and   demanded   the 


compensation   at   the   rate   of   Rs.   480   per   sq.m,   and   also   that   the   material  


removed   after   demolition   of   the   temporary   structures   (of   the   tenants)   on   the 


property   should   be   given   to   him.     Twenty   four   tenants   filed   a   common   claim 


statement and objected to the acquisition, but did not seek any compensation. 


They specifically stated that `there will not be any objection if they are provided 


with   alternative   accommodation   on   the   land   to   be   acquired'.     The   S.L.A.O. 


passed his award under Section 11 of the L.A. Act on 12.5.1983.  He rejected the 


                                                 9


objections of the tenants, and awarded the compensation of Rs. 100 to each of  


the 25 tenants.   He determined the compensation payable to the landowner at 


Rs.   6,10,823/-.       On   15.3.1985   the   landowner   withdrew   the   amount   of 


compensation by furnishing necessary security, though under protest.  



8.               After the Award was made by the S.L.A.O. on 12.5.1983 as stated 


earlier,   a   notice   under   Section   12   (2)   of   the   L.A.   Act   was   given,   to   take  


possession   of   the   land   on   20.5.1983.     Once   again,   only   the   tenants   objected  


thereto.     They   filed   a   suit   on   19.5.1983   in   the   Court   of   Civil   Judge,   Senior 


Division, Pune, bearing Suit No. 966 of 1983, to challenge the acquisition and the 


Award.     The   landowner   was   joined   therein   as   defendant   No.   3.     The   Court 


granted   an   interim   injunction   on   19.6.1983,   restraining   the   authorities   from 


taking possession.  However, after hearing the parties, an order was passed on 


9.2.1984 vacating the injunction, and returning the plaint for failure to give the  


mandatory notice required under Section 80 of the Code of Civil Procedure.  The 


tenants filed an appeal to the District Court against that order, but the same was 


also   dismissed.     Thereafter,   the   tenants   made   a   representation   to   the   then 


Minister of State for UDD, pointing out their difficulties, which persuaded him to  


pass   an   administrative   order   restraining   the   authorities   concerned   from   taking 


possession of F.P. No. 110.  



9.               It   is   pertinent   to   note   that   all   along,   the   landowner   did   not 


challenge  the  acquisition  of  his  land  in  any  manner  whatsoever.  On  the other  


hand, he sought a Reference under Section 18 of the L.A. Act for enhancement 


of   the   compensation.   The   District   Court   dismissed   that   Reference   bearing   No.  


                                                  10


273 of 1983 by order dated 15.4.1988, but enhanced the solatium and additional 


amount payable under Section 23(2) and 23(1A) of the L.A. Act.   The amount  


payable  under the order  of  the District  Court  was collected  by the landowner,  


though under protest, but he did not prefer the appeal permissible under Section 


54 of the L.A. Act.



        Revision   of   the   D.P.   Plan   for   Pune   under   the   MRTP   Act   and 

        change of utilisation of F.P. No. 110 to a Primary school



10.              In the meanwhile, the process of revising the Development Plan of 


Pune   city   under   the   provisions   of   MRTP   Act   was   going   on.     The   PMC   as   the 


planning authority had passed a resolution on 15.3.1976 declaring its intention to 


prepare a Revised Development Plan under Section 23 (1) read with Section 38 


of the MRTP Act. The State Government appointed the Director of Town Planning 


to   be   the   Special   Officer   for   that   purpose   under   Section   162   (1)   of   that   Act.  


After observing all the legal formalities, the said Director published in the official  


gazette on 18.9.1982 the Revised Draft Development Plan under Section 26 (1) 


of the Act.   In that plan F.P. No. 110-112 were initially reserved for children's  


play-ground,  but subsequently the reservation was changed to primary school.  


After   inviting   the   objections   and   suggestions,   and   after   considering   them,   the 


State Government sanctioned the Revised D.P. Plan on 5.1.1987 (though with a 


few   modifications),   to   be   effective   from   1.1.1987   (hereafter   referred   as   1987 


D.P. Plan for short) as also the Development Control Rules (D.C. Rules for short). 


In   the   sanctioned   D.P.   Plan   of   1987,   the   purpose   of   utilization   of   these   three 


plots was, as stated above changed to primary school.  


                                              11


        The modification with respect to these three plots was as follows:- 


                "Reservation continued.  Development allowed as per note 4".  

                Note 4 reads as follows:-


                        "Sites designated for Primary Schools from Sector I  
                to   VI   as   may   be   decided   by   the   Pune   Municipal  
                Corporation   may   be   allowed   to   be   developed   by  
                recognized   public   institutions   registered   under   Public  
                Charitable Trust Act, working in that field or the owners of  
                the land."


Thus by virtue of this note, the purpose could also be effectuated either by the 


owner of the land, or by a recognized charitable institution.



11.             It is relevant to note at this stage that a school for the handicapped 


children has come up in the adjoining F.P. No. 111.   Besides, a primary school 


was   set   up   by   Symbiosis   International   Cultural   and   Educational   Centre 


(`Symbiosis' for short) on F.P. No. 112.   It is stated that Symbiosis and another 


educational   institution   viz.   Maharashtra   Education   Society   (MES)   had   sought 


these  plots   since  they  were  in  need   of  land   for   extension  of   their   educational 


activities.     The   then   Chief   Minister   of   Maharashtra   had   recommended   the  


proposal of MES by his letter dated 9.4.1986, and the society had applied to the 


then Commissioner of Pune by its letter dated 29.4.1986.   That was, however,  


without any effect.



12.             The   S.L.A.O.   gave   one   more   notice   to   take   possession   of   F.P.  


No.110 on 1.3.1988.  It led to the filing of Regular  Civil Suit bearing No. 397 of 


1988  by some of the tenants in the Court of Civil Judge, Senior Division, Pune 


against the State Government and PMC, once again challenging the award of the 


                                                12


S.L.A.O.,   and   seeking   an   injunction   to   protect   their   possession.     The   Court 


granted  the interim injunction  as sought.   Thereafter  the landowner,  who was  


one of the defendants in the suit, applied for transposing himself as a plaintiff,  


which prayer was allowed on 2.4.1988.   The Court accepted the contention  of 


the   tenants   that   the   acquisition   had   lapsed   due   to   the   change   of   purpose   of 


reservation from what it was in 1966 viz. a garden by the time the award was 


made, and, therefore, decreed the suit by its order dated 23.4.1990.  



13.             The PMC preferred a first appeal against that decree to the Bombay 


High Court on 7.1.1991, but the Additional Registrar of the High Court returned 


the appeal by his order dated 21.4.1992 for presentation to the District Court on 


the basis of the valuation of the suit, and the provision for jurisdiction as it then  


existed.     Accordingly,   the   PMC   filed   the   appeal   before   the   District   Court 


immediately on 29.4.1992, but the District Court in turn, by its order passed two  


years   later   on   7.4.1994   returned   the   appeal   for   re-presenting   it   to   the   High  


Court, on the ground that the suit was valued above Rs. 50,000/- and as per the 


rules then existing the appeal would lie to the High Court.  PMC once again filed  


the appeal in the High Court being F.A (Stamp) No. 18615 of 1994 on 18.7.1994, 


alongwith   an   Application   for   condonation   of   delay   for   the   reasons   as   stated 


above.   This Appeal remained pending till it was withdrawn on the direction of 


the State Government on 18.8.1998, in the circumstances which will be presently  


pointed out.  It is, however, relevant to note that this appeal was withdrawn at a 


point of time when the two public interest petitions were filed on 12.8.1998, and 


were pending in the High Court.   The impugned order of the Division Bench on 


                                               13


these   petitions   has   directed   the   PMC   to   move   an   Application   before   the   High 


Court   for   reviving   the   First   Appeal   (Stamp   No.18615   of   1994),   and   pursuant 


thereto the PMC has already moved the necessary Application on 13.1.2000.  Be 


that as it may.



        Steps taken by the landowner after Shri Manohar Joshi 

        took over as the Chief Minister of Maharashtra



14.             It is material to note that after the decision of the Reference Court, 


the landowner entered into an agreement of sale of the concerned land with one 


Shri Mukesh Jain on 17.8.1989, though no steps were taken thereafter by either 


of the parties on the basis of that agreement.  It so happened that consequent 


upon the elections to the State Assembly, a new Government came in power in 


the State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the 


Chief Minister (hereinafter referred as the then Chief Minister).  He retained with 


himself the UDD portfolio.  The earlier referred Shri Ravindra Mane became the 


Minister of State for UDD (hereinafter referred to as the then Minister of State).  


On 20.10.1995 the landowner entered into a Development agreement with M/s 


Vyas Constructions  by virtue  of which  the landowner  handed over all rights  of 


development in the property to them for a consideration of Rs. 1.25 crores, a flat 


of 1500 sq. feet area and an office space of 500 sq. feet in the building to be 


developed on F.P. No. 110.  The agreement stated that it was being entered into 


to solve the practical difficulties. Para 7 thereof stated that the developer shall  


follow the procedure or process of de-reservation of the said property. Para 20 


and 21 stated that `after de-reservation of the property, the developer agrees to 


                                                14


get the clearance under the Urban Land (Ceiling and Regulation) Act 1976 which 


may be necessary,' and for that purpose he was authorised to get any scheme 


sanctioned. M/s Vyas Constructions is stated to have settled the claim of above  


referred   Shri   Mukesh   Jain.     On   the   same   day,   the   landowner   executed   an 


irrevocable Power of Attorney in favour of Shri Girish Vyas for the development 


of  F.P No. 110. (He is referred  hereinafter  as the developer).    The  landowner  


simultaneously executed another Power of Attorney in favour of one Shri Shriram 


Karandikar  on 26.10.1995, authorising  him to take necessary steps concerning 


the development of that land.  



15.             Thereafter, on 1.11.1995 the architect of the landowner submitted 


to PMC a building layout for permission for residential use of F.P. No. 110.  The 


City Engineer of PMC rejected the proposal by his reply dated 6.11.1995 under 


Section   45   of   the   MRTP   Act   read   with   Section   255   of   the   Bombay   Provincial  


Municipal Corporations Act 1949 (BPMC Act for short) and D.C. Rule No. 6.7.1, 


since   the   plot   had   been   reserved   for   a   primary   school,   and   hence   such   a 


permission could not be granted.  It was however pointed out in this reply of the  


City Engineer that the development of the land was permissible in the manner 


indicated in the note No.4 published in the gazette which has been referred to 


hereinabove  (i.e. putting up a primary school either by the landowner or by a 


charitable trust).



16.             At this stage, landowner's Attorney holder, Shri Shriram Karandikar 


wrote to the Minister of State for UDD on 20.11.1995 seeking a direction to the  


Municipal   Commissioner   to   sanction   landowner's   aforesaid   application   dated 


                                               15


1.11.1995 for development of the property for residential houses.   He relied on 


the decree of Civil Judge Senior Division in Civil Suit No.399 of 1998 and prayed  


for correcting the Development Plan also.  From here onwards starts the role of 


the   then   Minister   of   State,   the   Municipal   Commissioner,   and   the   then   Chief  


Minister.



          Processing of the application dated 20.11.1995 on behalf of the 

             landowner at the level of the State Government



17.              In their petitions to the High Court, the writ petitioners made the 


allegation of mala fides on the part of the then Chief Minister and the Minister of 


State for UDD in entertaining the application made on behalf of the landowner.  


It, therefore, became necessary for the Division Bench of the High Court to call 


for the original record from the State Government as well as from the PMC.  The 


application dated 20.11.1995 made by Shri Karandikar on behalf of the landlord 


narrated   the   developments   until   the   date   of   that   application   including   the 


judgment   and   decree   of   the   Civil   Court   setting   aside   the   acquisition   of   the 


property.     It   was,   thereafter,   submitted   that   the   Municipal   Commissioner   be 


directed  to   sanction  the   development   permission  as  per   the  application   of  the 


architect of the landowner.  It is relevant to note that as far as this application of  


Shri Karandikar is concerned, it was not addressed to the State Government or to 


the Secretary of the concerned Department, but directly to the Minister of State  


for   UDD,   which   fact   is   noted   by   the   Division   Bench   in   its   judgment.     The 


application   did   not   bear   any   inward   stamp   of   UDD.     In   the   margin   of   the 


application, there was a noting by the Private Secretary of the Minister of State  


                                                    16


for UDD, recording that the Minister had directed the Deputy Secretary, UDD, to 


call a meeting on 19.1.1996.  The record further shows that although the Under 


Secretary   of   UDD   Shri   P.V.   Ghadge   accordingly   called   the   initial   meeting,   by 


addressing   a   letter   to   the   Director,   Town   Planning   and   the   Municipal 


Commissioner, the same was adjourned to 22.1.1996.  On that date, the meeting 


was   attended   by   the   Director   of   Town   Planning,   the   Deputy   City   Engineer   of 


PMC, Deputy Director of Town Planning, Pune, as well as by Shri Karandikar and 


his advocate, but what happened in that meeting is not reflected in this file.



        Initial Stand of Urban Development Department and PMC 



18.                The   Under   Secretary   (Shri   P.V.   Ghadge)   prepared   a   preliminary 


note   dated   2.2.1996   for   the   subsequent   meeting.   At   the   outset,   the   note 


mentions   in   a   nutshell   the   background   for   the   meeting   which   was   sought   on 


behalf   of   the   landlord.     Thereafter   it   gives   the   initial   opinion   of   the   U.D.  


Department at the end of the note, which is as follows:- 


                   "In   this   regard   it   is   the   advice   of   the   department   that,  
        acquisition   has   been   done   after   taking   action   on   the   purchase  
        notice.   The compensation amount has been accepted.   Even if  
        the   reservation   of   the   plot   is   changed,   it   does   not   make   any  
        difference.  Directions be given to the Pune Municipal Corporation  
        to   immediately   present   this   matter   in   the   Bombay   High   Court.  
        The  question   of  returning   the  plot   to  the   land  owner   does   not  
        arise."



19.                On the background of this departmental note containing its advice, 


a meeting was held on 3.2.1996 presided over by the Minister of State for UDD, 


and the minutes of the meeting are part of the record placed before the High  


Court.   Apart from Shri Karandikar and his advocate, high ranking officers such 


                                                17


as (i) Secretary, UDD, (ii) Director, Town Planning, (iii) Commissioner, PMC, (iv) 


City Engineer, PMC and (v) Under Secretary, UDD were present in the meeting.  


The minutes of the meeting are recorded by the Under Secretary.  



20.             These   minutes   record   that   in   this   meeting   the   advocate   of   the 


applicant  explained  the  facts leading  to  his client's  application,  justifying  as to 


why   the   reservation   on   the   land   may   be   deleted.     He   referred   to   the   Court  


proceedings, the fact that 25-30 tenants were residing on the property for many 


years, and that on the adjoining property a school was running.   He therefore  


submitted that the reservation on the land be deleted.  



21.             The note records a preliminary query raised by the Secretary, UDD 


as   to   whether   the   advocate   was   pleading   on   behalf   of   the   tenants   or   the 


landowner,   to   which   the   Advocate   replied   that   he   was   pleading   for   the 


landowner.  The Secretary, UDD raised two more queries viz. (i) if the land was  


not useful for reservation because of the tenants, then how will it be available to 


the   landowner,   and   (ii)   whether   the   landowner   had   ever   objected   to   this 


reservation, to which the advocate replied in the negative.



22.             The   City   Engineer,   PMC   pointed   out   during   the   meeting   that 


consequent upon the property owner issuing the purchase notice, the PMC had 


acquired the land, the award was made, the property owner had accepted the  


compensation, and that he never objected to the change in reservation due to 


the  revision  of  the  D.P.  Plan  during  the  entire  period  of  revision  i.e.  1982-87. 


With  respect  to the proceedings initiated  by the tenants, he pointed  that PMC  


                                              18


had filed an Appeal in the Bombay High Court against the judgment of the Civil 


Court, and the matter was sub-judice.  He specifically asked whether the hearing 


given to the applicant was on an appeal under Section 47 of the MRTP Act, or  


was   it   on   his   application.     He   pointed   out   that   the   property   was   under  


reservation, and it could not be de-reserved in an appeal under Section 47.   It 


required an action in the nature of modification under Section 37 of the MRTP 


Act.  If it was an appeal, then it may be rejected, and if it was an application for  


modification then a decision cannot be taken as the matter was sub-judice.  On  


these queries it was stated on behalf of the landowner that his application was a  


request and not an appeal.



        Directions by Minister of State and report made by the Municipal 

        Commissioner in pursuance thereof


23.             It was thereafter pointed out on behalf of landowner  that on the 


adjoining two plots, schools had been developed, and the Corporation may not 


need this land.  The note records that in view of this submission, the Minister of 


State,   UDD   asked   the   Municipal   Commissioner   to   examine   whether   the   PMC 


really needed the concerned property.  He also suggested that it be examined, if 


PMC   can   keep   some   portion   of   the   land   under   reservation,   and   release   the 


remaining to the landowner.  If such a compromise is to be arrived at, then the  


property owner will have to accommodate the tenants on a portion of property  


released to him.   If PMC did not have any objection to reduce the area under 


reservation, Government will issue the necessary direction to take action under 


Section   37.    The   note   records  at   that   stage,   that   the  Municipal  Commissioner 


pointed   out   that   the   permission   of   the   Municipal   Corporation   (meaning   the  


                                               19


general body) was necessary to either delete the reservation, or to reduce the 


area under reservation.  



24.             The file  shows that accordingly  the Under  Secretary wrote to the 


Municipal Commissioner on 14.2.1996 requesting him to examine the possibility 


regarding any settlement after a site inspection, and to forward his opinion.  He 


was also asked to inform as to when had the PMC filed its appeal in the Bombay 


High Court, and about its status.  



25.             The file shows that at this stage, the landowner changed his stand. 


Shri Karandikar wrote another letter dated 23.3.1996 to the Minister of State that  


his application be treated as an appeal under Section 47 of the MRTP Act.



26.             The   Municipal   Commissioner   replied   Government's   letter   dated 


14.2.1996 by his letter dated 17.4.1996.   He pointed out that the development 


permission for this particular plot had been rejected because the property was 


under   reservation.   Then   he   reiterated   the   position   of   PMC   as   stated   in   the 


meeting of 3.2.1996.  Then he added - 


                "On 3.2.1996 we took the same stand which was taken by  
        us in various counts and administrative levels regarding dispute  
        for   the   development   of   property,   and   that   if   any   change   is  
        proposed in the use of the said property, permission has to be  
        taken from the Pune Municipal Corporation.  The Hon'ble Minister  
        of State for urban development ordered us to survey the subject  
        property and also ordered to explore the options of changing or  
        reducing the area of the reservation."  



27.             The   Municipal   Commissioner   then   stated   that   before   considering 


the   various   options  as  directed  by  the  State   Government,  it  was  necessary  to  


                                                20


note the background of the subject property; viz. that as per the 1966 D.P. Plan,  


it was reserved for a garden, and subsequently the reservation was changed to a 


Primary School in the draft D.P. Plan of 1982 confirmed in 1987.  He referred to 


the litigation initiated by the tenants, the fact that the PMC had filed an appeal to  


the High Court against the decision in the Civil Suit No. 397/1988, and that the 


High Court sent back the matter to the District Court and it was pending there.  


He placed on record the fact that though full price of the land was paid to the  


owner, procedure of taking actual possession by the PMC was still pending for 


last 13 years, because of which it was not possible to make appropriate use of 


the  land.    The  Minister  had asked  him to  survey the  subject  property,  and  to 


explore   the   possibility   of   changing   or   reducing   the   area   of   reservation.     The 


commissioner pointed  out that a survey was carried  accordingly.    He recorded 


that on inspection following facts were mainly noted:-


                "1.      There are about 36 temporary Houses on the land.
                2.       Out of the total area nearly half is encumbered.
        3.      Two   Educational   Institutions   in   the   vicinity   of   the  
                         School.
                4.       There are 11 Educational Institutions in the vicinity  
                         of the School.
                5.       Except the temporary Houses on this property the  
                         development of the area is planned and corporation 
                         has control over it."



The   Commissioner   however,   did   not   specify   as   to   which   area   of   the   city   was 


considered by him when he spoke about `vicinity' in item No. 4 above.



28.             The land was to be developed either by PMC or the owner or by a 


Charitable   Trust   as   per   the   D.P.   Note   4   referred   to   above.     The   Municipal 


Commissioner   then  gave  his  opinion  that  development   of  a  primary   school on 


                                               21


that plot by a charitable  institution appeared  impossible  due to various factors  


such   as   the   order   of   the   Civil   Court,   litigation   concerning   this   plot,   the 


requirement of rehabilitation of the tenants on that plot, and existence of near-


by schools.  Besides, the area being a higher middle class area, the response to 


a municipal school was doubtful.    He then added  as follows - `considering  the  


funds   available,   the   PMC   is   inclined   to   develop   school   on   some   other   plot 


reserved   for   school'.     As   we   have   noted   earlier   two   well-known   educational 


institutions, viz. MES and Symbiosis had already sought this plot also. The PMC 


had however replied to them that it was not possible for it to give them this plot,  


since it was not in the possession of PMC.  The Municipal Commissioner failed to 


bring these very relevant facts to the notice of the Government.  Having noticed  


these facts, the Division Bench has observed in para 143 of its judgment that the  


Commissioner's statement in this behalf in his report was "far from truth".  



29.             The   Commissioner   then   recorded   that   in   view   of   the   direction   of 


the   State   Government   to   suggest   alternatives   for   settlement,   he   had   in   the 


meanwhile, held discussions with Shri Karandikar, and that Shri Karandikar had  


expressed readiness to give alternate unencumbered land within suburbs of Pune 


admeasuring 5000 to 10000 sq. feet free of cost.       Thereafter, in view of the 


direction   of   the   State   Government   and   proposals   from   Shri   Karandikar,   the  


Commissioner recorded two suggestions:-



                "1.     Presently reserved area is about 3541 sq.mtrs out of  
       which nearly 50% area is occupied by occupants and remaining  
       area is open.   The land owner after excluding the area occupied  
       by the existing houses, to transfer the remaining area to the Pune  
       Municipal Corporation for school.  However, since the land owner  


                                               22


       has accepted compensation for the entire area, for the area to be  
       transferred, he should refund the amount to the Pune Municipal  
       Corporation   at   the   rate   suggested   by   the   Director   of   Town  
       Planning.


       2.      To   get   transferred   land   admeasuring   3000   sq.mtrs  
       elsewhere   at   a   convenient   place   in   Pune   City   with   school  
       admeasuring 500 sq.mtrs constructed thereon free of cost as per  
       specifications   of   the   Pune   Municipal   Corporation,   and   for   that  
       purpose it is necessary to get executed a proper agreement.  But  
       land   to   be   given   elsewhere   should   not   be   reserved   in  
       development plan for school or some other purpose."


       Thereafter his letter stated as follow:-


               "If first proposal is to be accepted for developing school on  
       remaining area question regarding decision of Civil Judge, Senior  
       Division would arise.   In this situation it is necessary to have the  
       support   of   the   land   owner   and   tenants   for   this   proposal.     For  
       implementing   both   the   aforesaid   proposals   suggested   by   us   it  
       would be appropriate if the following things are complied with:-


       1.      The   Pune   Municipal   Corporation   administration   to   take  
       permission from the Pune Municipal Corporation before releasing  
       rights in respect of the subject property.


       2.      For   deleting   reservation   on   the   property   taking   action  
       under Section 37 of M.R.T.P.


       3.      For acquiring new site as per Proposal No.2 permission of  
       concerned   Departments   of   the   Pune   Municipal   Corporation   will  
       have to be taken.


Then the Commissioner added:-


       Prior  to this since no such  settlement matters  have taken  place  
       regarding   the   development   plan   of   Pune   Municipal   Corporation,  
       the   experience   of   Pune   Municipal   Corporation   in   this   regard   is  
       limited.  Till the next order is received from the State Government  
       the   Pune   Municipal   Corporation   is   continuing   the   judicial  
       procedure in respect of this land."



30.            After the receipt of the letter dated 17.4.1996 from the Municipal 


Commissioner, the file shows the following noting dated 24.4.1996:-


               "                Mantralaya, Bombay 400 032


                                                 23


                                  Date 24/4/1996


                According to the instructions of Shri Chavan, Private Secretary  
        of the Hon'ble Chief Minister, please forward a copy of the report of  
        the Pune Municipal Corporation in the matter of Shri Karandikar for  
        the perusal of the Hon'ble Chief Minister.


        Shri Ghadesaheb                                              Sd/-
        Under Secretary                                     Private Secretary
        N.V.                                                Minister of State for Finance,
                                                            Planning and Urban Development


                                                            Government of Maharashtra"



31.             On   receiving   the   above   reply   dated   17.4.1996   from   Municipal 


Commissioner, Shri Ghadge, the Under Secretary once again put up a detailed 


note   thereon.     In   first   8   paragraphs   of   that   note   he   recorded   the   previous  


developments, including and upto the letter sent by the Municipal Commissioner. 


Thereafter in paragraph 9, 10 and 11 he put up the proposal of the department:-


                "9.      Considering the entire aforesaid circumstances, it is  
        firstly pointed out that applicant Shri Karandikar has approached  
        the Government on behalf of the land owner but the land owner  
        has already taken the price of the said property in the year 1983.  
        Though   the   physical   possession   of   the   said   property   is   not  
        received   to   the   Municipal   Corporation   still   however,   legally  
        Municipal   Corporation   has   become   owner   of   the   said   property.  
        Therefore, the Land Owner does not have any right to demand  
        return   of   the   said   property   by   deleting   reservation.     Now  
        considering   the   tenants,   they   have   approached   the   Court   and  
        therefore,   it   is   not   necessary   to   consider   that   aspect   till   the  
        matter   is   decided   by   the   Court.     If   the   said   matter   is   decided  
        against the Municipal Corporation  still the said persons shall be  
        tenants  and the land owner shall be Municipal  Corporation  and  
        further that the tenants have requested for allotment of the land  
        for developing it.


                10.      Still however considering the fact that no way out  
        will be available if the matter is kept pending as it is, and further  
        considering that there are numerous schools in the vicinity of the  
        said   property,   there   should   be   no   objection   to   consider   and  
        approve on government level the alternative No.1 suggested by  


                                                  24


        the Municipal Commissioner. However, for the said purpose the  
        tenants will  have to withdraw their proceedings  from the Court  
        and they will have to pay to the Municipal Corporation the cost  
        price of the 50% portion to be released for the said tenants as  
        may be determined by the Director, Town Planning.   If the said  
        alternative  is acceptable  to the land owner, the Pune Municipal  
        Corporation be informed about the orders of the Government to  
        initiate proceedings u/s 37 for the purposes of deletion  of 50%  
        property from reservation and to forward the said proposal to the  
        Government.


                 11.      Second   alternative   does   not   deserve   any  
        consideration   since   for   shifting   the   reservation   the   alternative  
        property should have the same area like that of the original one  
        and   that   it   is   necessary   that   such   property   should   be   in   the  
        vicinity   of   approximately   200   mtrs.   from   the   property   under  
        reservation.  So also the matters like approach road and level of  
        the land are also required to be similar.   (MARGINAL REMARK -  
        Rule No.13.5 of Pune Development Control Rules). 


                 12.      Proposal in paragraph 10 submitted for approval."


                 The note was countersigned by Shri Deshpande, Deputy Secretary, 


Town Planning  on 4.6.1996, and by the Senior Chief Secretary  (NV i.e.  Nagar  


Vikas     or Urban Development).   Thus the Urban Development Department did 


not  accept  the  second  proposal  of  the Municipal  Commissioner  to  remove  the 


reservation on the plot in its entirety, but recommended the acceptance of the  


first   proposal   to   reduce   the   reservation   on   the   plot   to   50%   of   its   area.     The 


Minister   for   State   however   did   not   sign   the   note   and   he   ordered   a   further 


discussion on the subject on 12.6.1996.



32.              Thus there was once again a discussion with the Minister of State, 


UDD on 12.6.1996 when Shri Karandikar, Shri Harihar, City Engineer, PMC, Shri 


Deshpande, Deputy Secretary, Town Planning and Shri Ghadge, Under Secretary 


were   present.     Shri   Ghadge   made   a   note   of   the   meeting   and   signed   it   on 


                                                 25


13.6.1996, and which note is also signed by Shri Deshpande and the Additional  


Chief Secretary.  The note records that on behalf of the applicants it was stated  


that it was not possible for them to accept the alternative no.1, and Municipal 


Corporation   should   consider   the   second   alternative.     The   note   further   records  


that   thereupon   the   City   Engineer   suggested   that   if   the   applicant   shows   some 


other   alternative   properties,   the   Municipal   Corporation   will   inspect   all   of   them  


and  then consider  as  to  which  of  them is  possible  to  be  accepted.    The  note 


thereafter records as follows:-



                 "In   the   event   such   alternative   property   is   selected   by  
        Municipal   Corporation,   then   action   to   be   taken   for   shifting   the  
        reservation   from   the   subject   property   as   per   Rule   No.   13.5   of  
        Pune Development Control Rules can be considered.  However, it  
        was   clarified   by   the   Department   that   for   that   purpose   the  
        condition   of   200   mtr.   Distance   will   have   to   be   relaxed   and   for  
        which   the   permission   of   Hon.   Chief   Minister   will   have   to   be  
        obtained".


                 The PMC was thereafter asked to submit its response in the light of 


above   discussion.     Shri   Ghadge   recorded   this   suggestion   in   his   letter   dated 


20.6.1996 addressed to the Municipal Commissioner.



33.                The   Municipal   Commissioner   then   wrote   back   to   the   Under 


Secretary, UDD by his letter dated 15.7.1996, pointing out that the applicant had 


shown   four   sites   from   which   one   at   Lohegaon   Survey   No.261   H.No.1/2 


admeasuring 3000 sq.meter was suitable for a primary school, but it was in the 


Agricultural   zone   as   per   the   approved   D.P.,   and   if   it   was   to   be   converted   to 


Residential zone, the approval of the State Government will have to be obtained  


for such a modification.


                                                 26


34.              On   receiving   this   letter   from   the   Municipal   Commissioner,   Shri 


Ghadge   once   again   put   up   a   detailed   note   and   at   the   end   of   para   8   thereof  


stated as follows:-


            "Considering the above circumstances and especially `A" on 12 T.V.  
        and B on 14 T.V., there could be no objection in granting permission  
        for shifting reservation under Rule 13.5 of the D.C. Rules by relaxing  
        the 200 meter condition and accordingly directions can be given to the  
        PMC for taking the following necessary action:-


            1. The Pune Municipal Corporation should recover the amount of  
        compensation   paid   earlier,   for   acquisition   of   final   plot   No.110   at  
        Earndwane together with the structures, with simple interest.


                 2.      The   State   Government   should   issue   directions   to   the  
        Pune   Municipal   Corporation   for   getting   the   plot   at   Lohegaon,   Pune  
        Survey   No.261   Hissa   No.1/2   from   Agricultural   zone   into   residential  
        zone   by   following   the   procedure   under   Section   37(1)   of   the  
        Maharastra   Regional   and   Town   Planning   Act,   1966   and   thereafter  
        submitting the proposal to the State Government for sanction.


                 3.      The   Commissioner   Pune   Municipal   Corporation   should  
        take action for shifting the reservation for Primary School on Final Plot  
        No.110 in the Development Plan of Pune City under Rule 13.5 of the  
        Development Control Rules, Pune to Lohegaon, Survey No.261, Hissa  
        No.1/2 and for that purpose the permission of the Corporation is not  
        necessary   as   intimated   earlier   by   the   State   Government   in   another  
        case [Survey No.39/1, Kothrud, Pune].


                 4.      After   complying   with   (1)   and   (3)   above,   the   Pune  
        Municipal Corporation should enter into an Agreement for transfer of  
        the   land   at   Lohegaon   Pune   and   thereafter   give   development  
        permission   for   the   plot   at   Erandwane.     However   the   Completion  
        Certificate for that place should not be issued unless the construction  
        of School at Lohegaon is completed."


        Below that note there are signatures as follows:-

                                                                                               "Sd/-
                                                                                         26/7/96
                                                                                (P.V. Ghadge)
                                                                             Under Secretary


                                                                                            Sd/- 
                                                                                       26/7/96 
                                                                           (Shri Deshpande)


                                              27


                                                     Deputy Secretary Town Planning


                                                                                       Sd/- 
                                                                                  26/7/96  
                                                   Additional Chief Secretary, (U.D.)


                                                                                       Sd/- 
                                                                                 30/7/96 
                                                     Hon'ble Minister of State (U.D.)
       Received
       31/7/96
               All action be taken in accordance with law.  No objection.


                                                                                        Sd/-
                                                                                    21/8/96
                                                                     Hon. Chief Minister"


35.            In   view   of   the   above   decision   signed   by   the   Chief   Minister   on 


21.8.1996, the Deputy Secretary, UDD sent a letter/order dated 3.9.1996 to the  


Commissioner   containing   exactly   the   above   four   conditions.     The   letter   stated 


that   he   had   been   ordered   by   the   State   Government   to   inform   those   four 


directives, and after quoting those four directives the letter further directed the 


Corporation   to   act   as   per   the   above   State   Government   directives   and   report 


compliance.  The letter reads as follows:-



       "ENGLISH TRANSLATION OF STATE GOVERNMENT LETTER DATED 
                                        03/09/1996


                                (MAHARASHTRA STATE)


                                                        No.TPS-1896/102/Matter
                                                        No.7/96/U.D.-93
                                                        Urban   Development   Department
                                                         Mantralaya, Mumbai 400 032


                                                    Date : 3rd September, 1996


       To,
       The Commissioner
       Pune Municipal Corporation


                                                28


       Pune


               Sub:      Development Permission of T.P. Scheme No.1, Final Ploat 
                                  No.110.


               Ref:      Request Application dated 20/11/95 by Shri Shriram 
                         Karandikar to Minister of State for Urban Development for  
                         Development in the subject matter.


       Sir,


       I have been ordered by the State Government to communicate to you the  
following directives.


               1.        The   Pune   Municipal   Corporation   should   recover   from   the  
                         land     owner   according   to   the   land   acquisition   law   the  
                         principal amount paid for acquisition of Final Ploat No.110,  
                         Erandwane  along with construction, with interest thereon  
                         at 12%.


               2.        S.No.261   Hissa   No.1/2   Lohegaon,   Pune   which   is   in  
                         agricultural zone should be included within residential zone  
                         in  the Development Plan.   For doing this you are directed  
                         that Pune Municipal Corporation should complete the entire  
                         legal   action   under   Section   37   (1)   of   the   Maharashtra  
                         Regional   and   Town   Planning   Act,   1966   and   send   the  
                         proposals to the State Government for sanction.


               3.        The Commissioner, Pune Municipal Corporation should take  
                         steps   to   shift   the   reservation   of   primary   school   in  
                         accordance with Rule 13.5 of the Development Control Rules  
                         from Final Plot No.110, Erandwane to Lohegaon S. No.260  
                         Hissa No.1/2.  For this purpose no sanction is required from  
                         the   Pune   Municipal   Corporation   as   has   been   earlier  
                         communicated   to   you   in   another   matter   (S.No.39/1  
                         Kothrud).


               4.        After   action   as   stated   in   (1)   and   (3)   above   is   completed,  
                         appropriate   agreement   be   entered   into   by   Pune   Municipal  
                         Corporation   with   land   owner   about   transferring   the  
                         Lohegaon   plot   and   thereafter   Development   permission   be  
                         granted   in   respect   of   the   Plot   at   Erandwane,   however   no  
                         completion  certificate   for that  place  be granted  unless  the  
                         construction of school at Lohegaon is complete.


       Corporation   to   act   as   per   the   above   State   Government   directive   and  
submit report regarding compliance to the Government.


                                                29


                                                  Yours faithfully,



                                                           Sd/-
                                              Vidyadhar Deshpande
                                             Deputy Secretary"



        Notings from the Municipal Files:-



36.             Thereafter we have the notings from the Municipal files which show 


that consequently the City Engineer has written to landowner on 27.9.1996 to  


return the amount paid to him for acquisition of final Plot No.110 T.P. Scheme, 


No.1 with interest at the rate of 12%, and secondly to transfer concerned land 


bearing survey No.261 Hissa No.1/2 at Lohegaon free of cost and without any 


encumbrances.  The letter further stated that only after compliance of the above  


two conditions he will be given permission for development of F.P. No.110.   It 


then   stated   that   building   completion   certificate   will   be   given   only   after   the 


procedure   under   Section   37   (1)   of   the   MRTP   Act   for   deleting   Survey   No.261  


Hissa 2/1 at Lohegaon, Hadapsar from the agricultural zone, and reserving it for 


primary school is completed, and sanctioned by the State Government.  



37.             Thereafter there is one more note of the Municipal Commissioner 


dated  21.9.1996 which  records  the opinion  of the Senior  Law Officer  that  the 


permission   of   the   general   body   of   PMC   will   be   required   for   entering   into   an 


agreement for deleting the reservation of plot at Erandawana.   With respect to 


the same the commissioner has recorded as follows:-


                "However,   since   the   State   Government   has   given   clear  
        orders to take action under Rule 13.5 of the Development Control  
        Rules of Pune for complying with the subject matters and since  


                                                30


        directives   have   been   given   for   making   such   change,   no  
        permission of the Pune Municipal Corporation is necessary". 



        Subsequent Developments



38.             Consequently,   the   subsequent   steps   have   been   taken.     The 


landowner has returned the amount as sought, a deed of settlement has been 


entered   into   between   the   landowner   and   the   PMC,   and   Commencement 


Certificates have been issued on 28.11.1996 and 3.5.1997 for the two buildings  


proposed  to be constructed.    An Occupation  Certificate  dated  20.12.1997 was  


also   given   for   a   part   of   the   building   completed   thereafter   namely,   B   Wing 


containing 24 flats for the tenants.   It is however interesting to note that PMC 


instructed   its   counsel   on   19.11.1996   to   withdraw   its   first   appeal   in   the   High 


Court as directed by the Government even before the landowner returning the 


amount of compensation with interest on 22.11.1996.



39.             It has so transpired that though the land at Lohegaon was handed 


over   to   PMC   as   proposed,   subsequently   the   Municipal   Corporation   found   that 


there was not so much need of a school at Lohegaon, but a school was needed 


at Sinhagad Road, Dattawadi.  The procedure for changing the zone of the land 


at Lohegaon as required under Section 37 of the MRTP Act was also taking its 


own   time   at   the   municipal   level.     Once   again   there   was   a   correspondence  


between the PMC and the Government in this behalf. The Commissioner wrote 


to the Dy. Secretary, UDD on 28.5.1998 for a modification in the conditions in  


the   Government   letter   dated   3.9.1996   to   get   the   school   constructed   at 


Dattawadi (instead of Lohegaon) in lieu of the school reservation on plot no. 110 


                                                   31


at   Prabhat   road.   At   this   stage   for   the   first   time   we   have   the   letter   from   the  


developer dated 15.7.1998 addressed to the City Engineer of PMC signed by Shri 


Girish Vyas for the Vyas Constructions, stating that he was prepared to offer an 


alternative   site   admeasuring   3000   sq.   meters   at   Mundhwa   within   PMC   area 


which   is   in   residential   zone.   This   was   to   avoid   the   difficulty   concerning   the 


change of zone. Additionally he was prepared to deposit  an amount with PMC 


equivalent to the cost of construction of 500 sq. meters as per PMC's standard 


specifications,   and   PMC   may   construct   the   school   whenever   and   wherever   it 


required. He further sought that on his doing so, the final completion certificate 


be issued so that the flat purchasers can occupy their flats in the building on F.P. 


No.110 which was almost ready.  



40.              The Government file contains one more note made by the Under 


Secretary   Shri   Rajan   Kop   and   signed   by   Shri   Deshpande   on   22.7.1998.     It   is  


clearly   recorded   below   the   note   that   it   was   marked   for   the   Additional   Chief  


Secretary   to   the   Chief   Minister,   and   also   for   the   Chief   Minister.     The   note 


mentions that there has been substantial criticism in local newspaper about this 


matter.  It is stated that the issue was raised in the general body of PMC, and it 


was represented that an amenity in the area is being destroyed by deleting the 


reservation for a primary school.  The Commissioner had defended the decision 


by contending that although 3450 sq. meter area of reservation of F.P. No.110 


was being deleted, reservation on 8219 sq. meters on adjoining two plots was 


being   maintained.     It   was   also   pointed   out   by   the   Commissioner   that   an 


additional amenity was being created in another area.  The note further records  


                                                   32


that   in   the   meanwhile   the   proposal   to   shift   the   reservation   on   the   plot   at 


Lohegaon had been filed (i.e. disapproved) by the Standing Committee of PMC. 


Last para of this note states as follows:-


                 "Senior Chief Secretary of Hon. Chief Minister has issued  
        instructions to put up a self explanatory note in this entire matter  
        for   perusal   of   Hon.   Chief   Minister.     It   is   further   instructed   to  
        include the matters wherein the Government has taken a decision  
        in   this   matter   as   also   in   another   matter   prior   thereto,   the  
        information   provided   and   points   suggested   by   Municipal  
        Corporation with respect to the matters of deletion of reservation  
        from Pune City Development Plan, etc., Such note containing the  
        full background, factual and other aspects of the matter would be  
        useful for Hon. Chief Minister if certain questions are raised with  
        respect   to   the   said   matter   in   the   current   session   of   Legislative  
        Assembly."



41.              On   receiving   the   developer's   letter   dated   15.7.1998,   the 


Commissioner   once   again   wrote   to   Under   Secretary   UDD   on   23.7.1998 


suggesting acceptance of the two proposals of the developer, but seeking orders 


of   the   government   therefor.     It   is   material   to   note   at   this   stage   that   in   the  


Government   file   there   is   a   clear   noting   of   the   Principal   Secretary   UDD   dated 


24.7.1998 that the application of Rule 13.5 in the matter under question was not 


legal.  As the note states:-


                 ".......With   due   respect   to   the   persons   then,   doing  
        interpretation  of  the  said   decision   of the  Government  and  Rule  
        No. 13.5, I feel that application  of Rule No. 13.5 in  the matter  
        under question is not legal.  Upon plain reading of the said rule it  
        is clear that this rule can be applied when the reservation is to be  
        shifted   within   a   distance   of   200   mtrs.     Government   or   the  
        Commissioner do not appear to be empowered for such shifting  
        beyond   the   distance   of   200   mtrs.     It   would   have   been   much  
        appropriate that the action for change as contemplated in Sec. 37  
        of the Maharashtra Regional and Town Planning Act, 1966 would  
        have been taken......"


                                                 33


42.              In   view   of   Commissioner's   letter   dated   23.7.1998   however,   once 


again   a   departmental   note   was   prepared   containing   following   opinion,   still 


seeking to resort to Rule 13.5.


                      "...... After considering this issue the following opinion is  
         being expressed on the proposal of Pune Municipal Corporation.

           (1)  Commissioner,   Pune   Municipal   Corporation   to   take   action   to  
         cancel the action earlier taken of shifting reservation at Lohegaon  
         as   per   Rule   No.   13.5   and   the   action   of   shifting   the   said   part  
         reservation to Mundhawa be initiated afresh under Rule 13.5.

          (2)  Prior to taking action as stated in (1) above, even though it is  
         stated by the Commissioner that the land at Mundhwa admeasuring  
         3000 sq. mtrs., suggested by the Promoter is suitable, still however,  
         it is necessary that the Commissioner , Pune Municipal Corporation  
         should get himself satisfied about the 12 mtr. wide approach being  
         available to the said land.   After satisfying itself the legal action for  
         taking the said Mundhwa land in possession of the Pune Municipal  
         Corporation be completed.  After completing these actions only, it is  
         necessary to take action as stipulated in (1) above.

         (3)   As per the earlier instructions, the Pune Municipal Corporation  
       got   executed   agreement   for   construction   of   500   sq.mtrs.   Since   the  
       action   with  respect  to  Lohegaon  land  had  remained  incomplete,  the  
       Municipal Corporation could not grant permission to construct school  
       therein.     This   construction   could   have   been   got   done   on   Mundhwa  
       land.   However, from the letter of the Commissioner, Pune Municipal  
       Corporation it is seen that he has not yet decided as to whether the  
       school is to be constructed on the said land or not.  On the other hand  
       he has asserted that since the Promoter is ready to pay such amount  
       of construction no loss would be caused to Municipal Corporation by  
       getting   deposited   such   amount.     Considering   this   issue,   principally  
       there appears to be no objection on the part of the Commissioner in  
       accepting  the proposal  of promoter as recommended  by  him with  a  
       view to get available the necessary amenity for the school as per their  
       requirements.   However, it would be binding upon the Commissioner  
       to   spend   the   said   amount   for   the   construction   at   such   place   which  
       may   be   found   necessary   and   as   may   be   recommended   by   the  
       Education Committee.

       (4)  Since the actions to be taken as stipulated in point No. (3) above,  
       are between the Pune Municipal Corporation Education Committee and  
       Commissioner,   Pune   Municipal   Corporation,   there   is   no   reason   to  
       suspend the action of granting completion certification to the Promoter  
       therefore.   Therefore, the Government shall have no objection if the  
       completion   certificate   is   granted   by   Municipal   Corporation   to   the  


                                              34


       Promoter after completing the actions as stipulated in para No. 1 and  
       2 subject to the rules and provisions in that behalf.

                If   the   aforesaid   issues   are   approved,   the   proposal   of   the  
       Commissioner   in   the   present   circumstances   being   FOR   superior  
       purpose   than   these   contained   in   the   earlier   directives   of   the  
       Government   there   should   be   no   reason   to   object   the   proposal  
       submitted by the Commissioner and the same ought to be principally  
       approval   subject   however,   to   the   conditions   mentioned   in   the  
       aforesaid discussion.   In accordance  hereof the draft or letter to be  
       sent to Pune Municipal Corporation is put up at Page No. _____/PV.
                The above proposal will be issued on the same being approved.

                Submitted for orders.

                                                Sd/-
                                              27.7.98
                                        (Vidyadhar Deshpande)
                                            Dy. Secretary.
                                           Sd/-27.7.1998"


43.             Below   this   note   however,   the   Additional   Chief   Secretary   to   the 


Chief Minister put up a remark as follows and signed below it:-



                "In this matter the developer and Hon. Chief Minister being  
        related, it is requested that the Hon. Minister of State should take  
        proper decision as per rules".


        Thereafter there is the order of the Minister of State which is as follows:-


         `Proposal of Department approved. Orders be issued':-

                                                                                 "Sd/- 
                                                                               28.7.98
                                                                               N.V.V."


44.             The   Deputy  Secretary   thereafter   sent   a  reply   dated  29.7.1998   to 


the   letters   of   the   Municipal   Commissioner   dated   28.5.1998   and   23.7.1998.   In 


para 1 thereof he referred to the Commissioner's letter dated 28.5.1998 seeking 


to shift reservation on F.P. No. 110 under DC Rule 13.5 to Mundhawa instead of  


Lohegaon.  Thereafter he stated in para 2 as follows:-


                                                 35


                 ".........Now   the   Developer   has   shown   his   readiness   to  
        make available land at Mundhawa.  Therefore, in your letter you  
        have sought approval to recover the proper amount required for  
        the   construction   of   500   sq.mtrs,   after   taking   action   stated   in  
        preceding paragraph.  Upon due consideration of your request, I  
        have   orders   to   inform   you   that   after   recovering   such   proper  
        amount   from   the   Developer,   the   said   amount   be   utilized   for  
        construction of primary school at such place as may be required  
        and   recommended   by   the   Education   Committee   of   Pune  
        Municipal   Corporation.     Because  of  this   order   request   made  by  
        you in your letter dt. 28.5.98 automatically becomes redundant.


                 In your letter dt. 23rd July 98 you have sought guidance on  
        the   issue   of   grant   of   occupancy   certificate   to   the   Developer.  
        After taking the action as stated in paragraph 1 and 2, there is no  
        reason   for   the   Government   to   have   objection   if   in   furtherance  
        thereof   the   Pune   Municipal   Corporation   issues   the   occupancy  
        certificate   subject   to   the   other   provisions   of   the   Rules   in   that  
        behalf."



45.              In   view   of   the   directions   dated   3.9.1996   issued   by   the   State 


Government,   the  PMC   issued   (i)  Commencement   Certificate   (C.C.   for  short)  in 


the   name   of   the   landowner   dated   28.11.1996   for   constructing   a   building   to 


rehabilitate the tenants, (ii) the second C.C. dated 3.5.1997 for constructing the 


other   residential   buildings   consisting   of   ground   plus   ten   floors   (named   as 


Sundew Apartment by the developer), and (iii) the Occupation Certificate (O.C. 


for   short)   in   part   dated   20.12.1997   for   the   tenants'   building.     Thereafter,   the  


developer   signed   a   confirming   agreement   with   the   landowner   and   his   family 


members on 16.1.1998 to once again confirm the terms of the earlier referred 


development agreement entered into between the developer and landowner on 


20.10.1995.   It is at this stage,  that two  petitions  bearing  no. 4433/1998 and 


4434/1998 were filed on 12.8.1998 and 14.8.1998 respectively. A Division Bench 


first issued Rule Nisi without any interim order.  In as much as the construction  


                                                 36


had started from March 1997 and was substantially completed, only a direction 


was given in Writ Petition No.4434/1998 not to create any third party interest.  


The PMC was already directed not to grant completion certificate in respect of 


the ten storey building.  Subsequently, the petitions were heard finally, and the 


Division   Bench   consisting   of   Hon'ble   Justice   B.N.   Srikrishna   and   Justice   S.S 


Parkar,   rendered   two   concurrent   judgments   on   6th-15th  March   1999,   and   a 


common order which have been challenged in the present group of appeals.



        Justification of the shifting of reservation under D.C. Rule 13.5: 

        Is it in consonance with the statute?



46.              As we have noted, the State Government directed the PMC to shift 


the   reservation   on   F.P.   No.   110   under   DC   Rule   13.5.   The   question   therefore 


comes   up   as   to   whether   the   action   by   the   State   is   in   consonance   with   the 


statutory scheme, and that apart whether such an action is permissible under DC 


Rule   13.5?   If   we   look   to   the   scheme   of   the   Act   it   gives   importance   to   the 


implementation   of   the   sanctioned   plan   as   it   is   and   it   is   only   in   certain 


contingencies that the provision thereunder is permitted to be modified, and that  


too after following the necessary procedure made in that behalf. 



        Signification   of   the   Sanctioned   Plan   and   the   provisions   for   the 

        modification thereof



47.              The   Planning   process   under   the   MRTP   Act   is   quite   an   elaborate 


process.     A   number   of   town   planners,   architects   and   officers   of   the   Planning 


Authority, and wherever necessary those of the State Government participate in 


the process. They take into consideration  the requirements of the citizens and  


                                                   37


the need for the public amenities. The planners consider the difficulties presently  


faced by the citizens, make rough estimate of the likely growth of the city in near 


future and provide for their solutions.   The plan is expected to be implemented  


during the course of the next twenty years.  After the draft Development Plan is 


prepared,   a   notice   is   published   in   the   official   gazette   stating   that   the   plan   is  


prepared.     Under   Section   26(1)   of   the   Act   the   name   and   place   where   copy  


thereof will be available for inspection to the public at large is notified.   Copies 


and  extracts  thereof  are  also  made  available  for  sale.    Thereafter  suggestions  


and   objections   are   invited.     The   provisions   of   regional   plan   are   given   due 


weightage   under   Section   27   of   the   Act   and   then   the   plan   is   finalised   after  


following   the   detailed   process   under   Section   28   of   the   Act.     This   being   the 


position,   Chapter-III   of   the   MRTP   Act   on   Development   Plans   requires   the 


sanctioned   plan   to   be   implemented   as   it   is.     There   are   only   two   methods   by 


which modifications of the final Development Plan can be brought about.  One is 


where   the   proposal   is   such   that   it   will   not   change   the   character   of   the  


Development   Plan,   which   is   known   as   minor   modification   and   for   which   the 


procedure   is   laid   down   under   Section   37   of   the   Act.     The   other   is   where   the 


modification is of a substantial nature which is defined under Section 22A of the  


Act.  In that case the procedure as laid down under Section 29 is required to be 


followed.     There   is   also   one   more   analogous   provision   though   it   is   slightly  


different i.e. the one provided under Section 50 of the Act, for deletion of the  


reservation where the appropriate authority (other than the planning authority)  


                                                 38


no   longer   requires   the   designated   land   for   the   particular   public   purpose,   and 


seeks deletion of the reservation thereon.



48.              The Government's action to shift the reservation on F.P. No. 110 is 


under   DC   Rule   13.5   and   not   under   Section   37   of   the   MRTP   Act.     We   may 


therefore refer to DC Rule 13.5 and Section 37.


                 DC Rule 13.5 reads as follows:-


                 "13.5 If the land proposed to be laid out is affected by any  
       reservation/s or public purpose/s authority may agree to adjust the  
       location   of   such   reservation/s   to   suit   the   development   without  
       altering the area of such reservation.   Provided however, that no  
       such shifting of the reservation/s shall be permitted.


                 (a)     beyond 200 m. of the location in the Development  
                         Plan.

                 (b)     beyond   the   holding   of   the   owner   in   which   such  
                         reservation is located, and

                 (c)     unless the alternative location  is at least similar to  
                         the   location   of   the   Development   Plan   as   regards  
                         access, levels etc.

                 All such alterations in the reservations/alignment of roads  
       shall be reported by the Planning Authority to Govt. at the time of  
       sanctioning the layout."



49.              As can be seen from the D.C. Rule 13.5, shifting of the reservation 


thereunder   has   to   be   without   altering   the   size   of   the   area   under   reservation. 


Besides it is permissible only on three conditions namely, that (1) it cannot be 


beyond 200 metres of the original location in the Development Plan, (2) it has to  


be within the holding of the owner in which the reservation is located, and (3) 


the   alternative   location   ought   to   have   a   similar   access   and   land   level   as   the 


original location.  Obviously the shifting of the reservation from F.P. No. 110 to a 


far off place could not be justified under D.C. rule 13.5.


                                               39


       Minor Modifications



50.            Section 37 of the MRTP Act, reads as follows:-



               "37. Modification of final Development Plan


                 (1) Where a modification of any part of or any proposal  
       made in, a final Development plan is of such a nature that it will  
       not change the character of such Development plan, the Planning  
       Authority   may,   or   when   so   directed   by   the   State   Government  
       [shall, within sixty days from the date of such direction, publish a  
       notice] in the Official Gazette [and in such other manner as may  
       be determined by it] inviting objections and suggestions from any  
       person with respect to the proposed modification not later than  
       One   month   from   the   date   of   such   notice;   and   shall   also   serve  
       notice on all persons affected by the proposed modification and  
       after giving a hearing to any such persons, submit the proposed  
       modification (with amendments, if any), to the State Government  
       for sanction.


         [(1A)   If   the   Planning   Authority   fails   to   issue   the   notice   as  
       directed   by   the   State   Government,   the   State   Government   shall  
       issue the notice, and thereupon the provisions of sub-section (1)  
       shall apply as they apply in relation to a notice to be published by  
       a Planning Authority.]


         [(1AA)   (a)   Notwithstanding   anything   Contained   in   sub-sections  
       (1), (1A) and (2), where the State Government is satisfied that in  
       the   public   interest   it   is   necessary   to   carry   out   urgently   a  
       modification   of   any   part   of,   or   any   proposal   made   in,   a   final  
       Development   Plan   of   such   a   nature   that  it   will   not   change   the  
       character of such Development Plan, the State Government may,  
       on its own, publish a notice in the Official Gazette, and in such  
       other manner as may be determined by it, inviting objections and  
       suggestions   from   any   person   with   respect   to   the   proposed  
       modification   not   later   than   one   month   from   the   date   of   such  
       notice and shall also serve notice on all persons affected by the  
       proposed modification and the Planning Authority.

               (b) The State Government shall, after the specified period,  
               forward a copy of all such objections  and suggestions to  
               the Planning Authority for its say to the Government within  
               a period  of one month from  the receipt  of the copies  of  
               such objections and suggestions from the Government.

               (c) The State Government shall, after giving hearing to the  
               affected   persons   and   the   Planning   Authority   and   after  


                                                40


                making   such   inquiry   as   it   may   consider   necessary   and  
                consulting the Director of Town Planning, by notification in  
                the   Official   Gazette,   publish   the   approved   modifications  
                with or without changes, and subject to such conditions as  
                it   may   deem   fit,   or   may   decide   not   to   carry   out   such  
                modification. On the publication of the modification in the  
                Official   Gazette,   the   final   Development   Plan   shall   be  
                deemed to have been modified accordingly.]


          [(1-B) Notwithstanding anything contained in sub-section (1), if  
        the Slum Rehabilitation Authority appointed under section 3A of  
        the   Maharashtra   Slum   Areas   (Improvement,   Clearance   and  
        Redevelopment) Act, 1971(Mah. XXV-III of 1971) is satisfied that  
        a  modification   of  any  part of,  or any  proposal  made  in, a  final  
        Development Plan is required to be made for implementation of  
        the   Slum   Rehabilitation   Scheme   declared   under   the   said   Act,  
        then, it may publish a notice in the Official Gazette, and in such  
        other manner as may be determined by it, inviting objections and  
        suggestions   from   any   person   with   respect   to   the   proposed  
        modification   not   later   than   one   month   from   the   date   of   such  
        notice; and shall also serve notice on all persons affected by the  
        proposed   modification,   and   after   giving   a   hearing   to   any   such  
        persons, submit the proposed modification (with amendments, if  
        any) to the State Government for sanction.]

        (2)   The   State   Government   may,   [make   such   inquiry   as   it   may  
        consider   necessary]   and   after   consulting   the   Director   of   Town  
        Planning   by   notification   in   the   Official   Gazette,   sanction   the  
        modification * * * with or without such changes, and subject to  
        such conditions as it may deem fit or refuse to accord sanction. If  
        a modification is sanctioned, the final Development Plans shall be  
        deemed to have been modified accordingly."



51.             As seen from this Section, the minor modification under Section 37 


(1) has to be such that it will not change the character of the Development Plan.  


The   section   indicates   that   for   setting   the   procedure   under   Section   37   into 


motion, the Planning Authority has to firstly form an opinion that the proposed  


modification   will   not   change   the   character   of   the   Development   Plan.   Such   an 


opinion has to be formed by the Planning Authority meaning the general body of  


the Municipal Corporation, since this function is not permitted to be delegated to 


                                                  41


anybody else under Section 152 of the Act.   Thereafter the Planning Authority 


has   to   publish   a   notice   in   the   official   gazette   inviting   the   objections   and 


suggestions from the public with respect to the proposed modification. It is also 


required   to   give   a   notice   to   all   the   persons   affected   by   the   proposed 


modification. Sub-section (1A) lays down that if the Planning Authority does not  


give the notice, the State Government is required to issue the notice as stated 


above.  The notice to the affected persons in our case will mean notice at least  


to the two institutions which had applied for developing a Primary school on this 


very   plot   of   land.     Thereafter   they   have   to   be   heard,   and   the   proposed  


modification   with   amendments   if   any,   is   to   be   submitted   to   the   State 


Government for sanction.  Subsequently, after making appropriate enquiries and 


after consulting the Director of Town Planning the State Government may under 


sub-section (2) sanction the modification with or without appropriate changes, or 


subject to such conditions as it may deem fit or refuse to grant the sanction.  



52.              Sub-section (1AA) of Section 37 lays down the power of the State 


Government where it feels the urgency for carrying out any such modification. 


In that case the State Government may publish the notice in the Official Gazette,  


and follow the similar procedure, but subsequently it has to place the proposal 


before the general body of the Planning Authority for its say, and thereafter only 


it may sanction the modification after consulting the Director of Town Planning in 


a   similar   manner.       This   shows   that   in   the   event   of   a   minor   modification   the  


general body of the Planning Authority has a say in the matter.  The Government 


has   to   invite   the   objections   and   suggestions   from   the   public   at   large   by  


                                                  42


publishing the notification in the Official Gazette, plus it has to issue a specific  


notice to the persons affected by the proposed modification, and last but not the  


least   it   has   to   consult   the   Director   of   Town   Planning   before   arriving   at   its 


decision.  In the present case nothing of the kind has been done.  



53.              In   the   instant   case   the   officers   of   the   Urban   Development 


Department as well as of the PMC took the stand (until it was possible), that the 


procedure  under Section 37 will have to be followed.    This was because what 


was contemplated  was a modification  of  a proposal made  in the Development 


Plan. A reservation for an amenity was sought to be shifted (which will in fact  


mean it was sought to be deleted) from the place where it was provided.  If that  


was the official view of UDD and PMC, what was required was a compliance of 


the procedure under Section 37(1) and (2).   Ultimately, since the direction was  


given by the State Government, (and if the State Government thought that there 


was an urgency), it was necessary for it to act under Section 37 (1AA), and to 


publish a notice in the Official Gazette to invite objections and suggestions from 


the   public   at   large,   and   also   from   the   persons   affected   by   the   proposed  


modification.     Thereafter   the   State   Government   was   required   to   send   the 


proposal   to   PMC   for   its   say   and   then   it   had   to   consult   the   Director   of   Town  


Planning.



        Modifications of a substantial nature



54.              Where   the   modification   is   of   a   substantial   nature,   a   different 


procedure   is   prescribed   under   Section   22A   of   the   Act.   This   Section   reads   as 


follows:-


                                       43


                " 22A. Modifications of a substantial nature

   In section 29 or 31, the expression "of a substantial nature"  
   used   in   relation   to   the   modifications   made   by   the   Planning  
   Authority   or   the   officer   appointed   by   the   State   Government  
   under sub-section (4) of section 21 (hereinafter referred to as  
   "the said Officer") or the State Government, as the case may  
   be, in the Draft Development Plan means,--

 (a) reduction of more than fifty per cent., or increase by ten per  
   cent. in area of reservations provided for in clauses (b) to (i)  
   of   section   22,   in   each   planning   unit   or   sector   of   a   draft  
   Development   Plan,   in   sites   admeasuring   more   than   0.4  
   hectare   in   the   Municipal   Corporation   area   and   'A'   Class  
   Municipal   area   and   1.00   hectare   in   'B'   Class   and   'C'   Class  
   Municipal areas;

 (b) all changes which result in the aggregate to a reduction of  
   any   public   amenity   by   more   than   ten   per   cent   of   the   area  
   provided in the planning unit or sector in a draft Development  
   Plan   prepared   and   published   under   section   26   or   published  
   with modification under section 29 or 31, as the case may be;

 (c) reduction in an area of an actually existing site reserved for  
   a public amenity except for marginal area upto two hundred  
   square meteres required for essential public amenity or utility  
   services;

 (d) change in the proposal of allocating the use of certain lands  
   from  one  zone  to  any   other  zone  provided  by  clause  (a)  of  
   section  22 which results in increasing the area in that other  
   zone by ten per cent. in the same planning unit or sector in a  
   draft Development Plan prepared and published under section  
   26 or published with modification under section 29 or 31, as  
   the case may be;

 (e)   any   new   reservation   made   in   a   draft   Development   Plan  
   which is not earlier published under section 26, 29 or 31, as  
   the case may be;


 (f) alternation in the Floor Space Index beyond ten per cent. of  
   the Floor Space Index prescribed in the Development Control  
   Regulations   prepared   and   published   under   section   26   or  
   published   with   modification   under   section   29   or   31,   as   the  
   case may be.]."



Additional   requirement   of   notice   in   local   newspapers   before 

effecting modifications of substantial nature:-


                                                   44


55.               The   modification   under   Section   22A   requires   following   of   the 


procedure under Section 29 of the MRTP  Act.   It lays down that apart from a 


notice   in   the   official   gazette,   a   notice   will   have   to   be   published   in   the   local  


newspapers for the information at the public  at large,  so that they may make 


their   suggestions   or   file   objections   thereto   if   they   so   deem   it   fit.     Section   29  


reads as follows:-


                  "29.   Modification   made   after   preparing   and  
         publishing notice of draft Development plan.


                  Where the modifications made by a Planning Authority or  
         the   said   Officer   in   the   draft   Development   plan   are   [of   a  
         substantial nature], the Planning Authority or as the case may be,  
         the said Officer shall publish a notice in the Official Gazette and  
         also in the local newspapers inviting objections and suggestions  
         from any person with respect to the proposed modifications not  
         later   than   sixty   days   from   the   date   of   such   notice;   and  
         thereupon, the provisions of section 28 shall apply in relation to  
         such suggestions and objections as they apply to suggestions and  
         objections dealt with under that section."



56.               As seen from this Section 22A, it treats modifications of six types as 


substantial modifications.  They are as follows:-


(a)      if a plot is admeasuring more than 0.4 hectare (i.e. 4000 sq. metres) in  


the Municipal Corporation area  or an A class Municipal area a reduction of more 


than 50 per cent would be considered as a substantial modification.   In B & C 


class Municipal Areas such a plot has to be of one hectare.


(b)      secondly, under sub-section (b) all changes which result in the aggregate 


to   a   reduction   of   any   public   amenity   by   more   than   ten   per   cent   of   the   area 


provided in the planning unit are considered a substantial change.


                                                45


(c)     where   there   is   an   actually   existing   site   reserved   for   a   public   amenity, 


except for marginal area upto two hundred square metres required for essential 


public   amenities   or   utility   services   their   reduction   will   be   a   substantial 


modification.


(d)     shifting of the allocation of use of land from zone to zone which results in  


increasing the area in the other zone by ten per cent in the same planning unit 


will be a substantial modification.


(e)     any new reservation made in a draft Development Plan which is not earlier 


published will be a substantial modification, and 


(f)     alternation   in   the   Floor   Space   Index   beyond   ten   per   cent   will   be   a 


substantial modification.



        Importance given to the spaces reserved for public amenities



57.              As   we   have   noted,   all   such   substantial   modifications   can   be 


effected only after following the additional requirement laid down in Section 29 


viz. a notice in the local newspapers inviting objections and suggestions within 


sixty  days  from  the   public  at   large  with   respect  to   the   proposed  modification. 


Sub-section (a) deals with reduction of more than fifty percent in area provided 


in   clauses   (b)   to   (i)   of   Section   22   which   sub-sections   are   concerned   with  


proposals for designation of land for public purposes such as schools, colleges, 


markets,   and   open   spaces,  playgrounds,  transport   and  communications,  water 


supply, drainage and sewerage and other public amenities.  It can be seen that 


sub-sections  (b) and (c) of section 22A give importance  to retention  of places  


reserved   for   public   amenities.     Sub-section   (b)   deals   with   a   reduction   of   any 


                                                  46


public amenity by more than ten per cent of the area reserved in the planning 


unit.     Sub-section   (c)   deals   with   any   reduction   in   an   actually   existing   site  


reserved   for   a   public   amenity   (other   than   marginal   area   upto   200   sq.   metres 


required for essential public amenities or utility services for e.g. road widening). 


Both   are   treated   as   substantial   modifications.     Section   2   (2)   of   the   MRTP   Act 


defines what is an "amenity".  It is relevant to note that this definition of amenity 


includes primary and secondary schools and colleges and polytechnics.  It reads 


as follows:-


                 "2  [(2).   "amenity"   means   roads,   streets,   open   spaces,  
        parks recreational grounds, play grounds, sports complex, parade  
        grounds, gardens, markets, parking lots, primary and secondary  
        schools   and   colleges   and   polytechnics,   clinics,   dispensaries   and  
        hospitals,   water   supply,   electricity   supply,   street   lighting,  
        sewerage,   drainage,   public   works   and   includes   other   utilities,  
        services and conveniences]."



58.              In the present case we have a situation where the reservation for a 


Primary school on a plot of an area of 3450 sq. metres is deleted. Would it not  


amount to a substantial modification under sub-section (b) of Section 22A since 


it results into deletion of a public amenity in the entire planning unit?  Would it 


not mean that in view thereof it was necessary to follow the procedure required 


under   Section   29   of   the   Act   which   provides   for   a   public   notice   in   the   Official 


Gazettee and also in the local newspapers inviting objections and suggestions? 


Would it not mean that thereafter it was necessary to follow the procedure  to 


deal   with   the   suggestions   and   objections   laid   down   while   finalizing   the   draft 


Development   Plan   under   Section   28   of   the   Act?     Whether   the   shifting   of   this  


reservation   is   covered   under   Section   37   or   Section   22A   is   a   moot   point   to  


                                                 47


consider.   One thing is however very clear, that it could not be justified under 


D.C. Rule 13.5.   If the statute provides for doing a particular act in a specified  


manner,   it   has   got   to   be   done   in   that   manner   alone,   and   not   in   any   other  


manner.


          Alleged   Conflict   between   D.P.   Plan   and   the   erstwhile   T.P. 

            Scheme canvassed for the first time in the High Court -     

            Can a provision in the erstwhile T.P. Scheme be relied upon in 

            the face of a contrary reservation in the subsequent D.P. Plan?




59.              In   as   much   as   the   action   of   the   State   Government   could   not   be 


defended under D.C. Rule 13.5, the appellants came up with the submission for 


the first time in the High Court and then in this Court that under the erstwhile 


Town   Planning   Scheme,   this   F.P.   No.   110   could   be   developed   for   residential 


purposes, and that purpose subsisted in spite of the subsequent reservation for a 


public purpose on that plot of land under the D.P. Plan.  



60.              It was pointed out that a Town Planning Scheme was framed under 


the then Bombay Town Planning Act of 1915 for Pune City to become effective  


from   1.3.1931.     Regulation   14   of   the   Principal   scheme   framed   under   that   Act 


provided for the areas included in the scheme which were intended mainly for 


residential purposes wherein this plot was included as original plot No. 230/C.  It 


was subsequently allotted  F.P. No. 110.   There was no reservation on this plot 


for any public purpose.  The 1915 Act was repealed and replaced by the Bombay 


Town   Planning   Act   1957   w.e.f.  1.4.1957  whereunder   the   concept   of   a 


Development Plan was introduced.  However, by virtue of Section 90 of the 1954 


                                               48


Act the previous schemes were saved. The erstwhile Town Planning scheme as  


varied,   was   sanctioned   by   the   State   Government   w.e.f.  15.8.1979,  and 


thereunder the permissible user of F.P. No. 110 continued to be  residential.   In 


the   meanwhile,   in   exercise   of   its   power   under   the   1954   Act,   the   State  


Government   sanctioned   the   Development   Plan   of   Pune   City   w.e.f.   15.8.1966 


whereunder F.P. No. 110-112 were reserved for a garden.   The 1954 Act was 


repealed  and replaced  by the  MRTP  Act 1966 w.e.f.  11.1.1967.     By virtue of  


Section 165 of the MRTP Act, however, the erstwhile Principal T.P. scheme (as 


varied), as well as the D.P. Plan were both saved.  Subsequently, when the D.P.  


Plan of Pune City was revised in 1982 and finalized in 1987 under the provisions  


of the MRTP Act, the reservation on the plot was initially proposed to be changed 


for a play-ground, but ultimately shifted for a primary school in the final 1987 DP 


Plan.  



61.             It is contended on behalf of the landowner and the developer that 


the permission for the user of the concerned plot of land for residential purposes 


under the T.P. Scheme effective from 15.8.1979 continued to survive by virtue of 


the   saving   clause   under   Section   165(2)   of   the   MRTP   Act,   and,   therefore,   the 


order   passed   by   the   Government   on   3.9.1996   as   well   as   the   commencement 


certificates were valid even on that count.   It is submitted that until the Town 


Planning   scheme   is   varied   under   Section   39   read   with   92   of   MRTP   Act,   the  


proposals in the Final Development Plan of 1987 cannot have any effect on the 


land   covered   by   the   erstwhile   Town   Planning   scheme.   The   Development   Plan 


and Town Planning scheme will both have their independent operation until the 


                                                49


Town Planning scheme is varied to bring it in accord with the Development Plan. 


As noted earlier that right from 8.5.1979, when the landowner issued purchase 


notice, and led the State Government and PMC to acquire the plot of land, this 


plea was never raised (and the High Court would have been within its rights not 


to entertain this plea on the ground of acquiescing into the change of user under  


the D.P. Plan).  The plea having been considered and rejected in the impugned  


judgment,   is   canvassed   once   again   in   this   Court.     To   consider   this   plea,   it  


becomes necessary to examine the relevant provisions of the Act.





        Relevant provisions of the Act in the context of the D.P. Plan as 


        against the erstwhile T.P. Scheme



62.             The preamble of the MRTP Act shows that this is an Act to make 


provisions for:


(1) planning the development and use of land in regions established for                     that 


    purpose and for constitution of regional planning boards  therefor,


(2) to make better provisions for the preparation of development plans                      with   a 


    view to ensuring that T.P. Schemes are made in the proper                       manner   and 


    their execution is made effective,


(3) to   provide   for   the   creation   of   new   towns   by   means   of   development 


    authorities,


(4) to make provisions for the compulsory acquisition of land required for public  


    purposes in respect of the plans, and


                                                50


(5) for purposes connected with the matters aforesaid.



63.      (i)     Chapter I of the Act contains the Preliminary provisions.  Chapter II 


of   the   Act   is   concerning   the   Regional   Plans.     Chapter   III   is   about   the  


Development   Plan,   and   Chapter   IV   about   Control   of   Development   and   Use   of 


Land included in Development Plans.  Chapter V is about the T.P. Schemes.  



(ii)             Section 3 of the Act permits the State Government to establish any 


area in the State to be a Region.  A Regional Plan is supposed to be prepared for 


various   subjects   which   are   mentioned   in   Section   14   of   the   Act.     The 


`Development Plan' is defined under Section 2 (9) of the Act as a plan for the  


development or re-development of the area within the jurisdiction of a planning 


authority.     Section   2   (19)   defines   the   Planning   Authority   to   mean   a   local 


authority,   and   it   includes   some   other   specified   authorities   also.     There   is   no 


dispute that the development  plan has to be prepared  `in accordance with the  


provisions of a Regional plan' which is what is specifically stated in Section 21 (1)  


of the Act.  



(iii)            It   is,   however,   disputed   by   the   developer   that   the   T.P.   scheme 


which   is   normally   supposed   to   be   a   detailed   scheme   for   a   smaller   part   of   a 


Municipal Area has necessarily to be in consonance with the development plan. 


As against this submission we have the mandate of Section 39 of the Act, which 


reads as follows:-


                 "39.   Variation   of   town   planning   scheme   by  
                 Development Plan. 


                                                 51


               Where   a   final   Development   plan   contains   proposals   which  
        are in variation, or modification of those made in a town planning  
        scheme   which   has   been   sanctioned   by   the   State   Government  
        before   the   commencement   of   this   Act,   the   Planning   Authority  
        shall vary such  scheme suitably  under section  92 to the extent  
        necessary by the proposals made in the final Development plan."


                 This Section states that the T.P. scheme shall be suitably varied to 


the   extent   necessary   wherever   the   final   development   plan   contains   proposals 


which   are   in   variation   or   modification   of   the   proposals   contained   in   the   T.P. 


Scheme.  In the instant case, we are concerned with the final development plan 


of 1987 which contains the reservation for a Primary School on F.P. No.110 as 


against  the plot  being  placed  in a residential  zone  in the final T.P.  scheme of 


1979.     It   is   submitted   by   the   appellant   that   the   planning   authority   may   take  


steps to vary the T.P.  scheme suitably  to bring  it  in consonance  with the  D.P  


plan, but until that is done, the provisions in the T.P. scheme will survive.  The  


High Court has rejected this submission by holding that the D.P. plan overrides  


the T.P. Scheme. 



64.              As noted above, Section 39 lays down that the T.P. Scheme is to be 


varied   suitably   in   accordance   with   the   D.P.   Plan   under   Section   92   of   the   Act. 


Section 92 appears in Chapter V which is on Town Planning schemes.  The first 


section in this chapter V is Section 59.  Section 59 reads as follows:-


                 "59.   Preparation   and   contents   of   Town   Planning  
        Scheme


                 (1)  Subject to the provisions of this Act or any other law for  
        the time being in force-
                 (a) a Planning Authority may for the purpose of implementing  
        the  proposals  in  the  final  Development  Plan,   prepare   one or  more  
        town   planning   schemes   for   the   area   within   its   jurisdiction,   or   any  
        part thereof;


                                                  52


                 (b) a town  planning  scheme may make provision  for any of  
        the following matters, that is to say-
                         (i) any of the matters specified in section 22;
                         (ii)   the   laying   out   or   re-laying   out   of   land,   either  
                         vacant   or   already   built   upon,   including   areas   of  
                         comprehensive development;
                         (iii) the suspension, as far as may be necessary for  
                         the proper carrying out of the scheme, of any rule,  
                         by-law,   regulation,   notification   or   order   made   or  
                         issued   under   any   law   for   the   time   being   in   force  
                         which the Legislature of the State is competent to  
                         make;
                         (iv)   such   other   matter   not   inconsistent   with   the  
                         object of this Act, as may be directed by the State  
                         Government.
                 (2) In making provisions in a draft town planning scheme for  
        any of the matter referred to in clause (b) of sub-section (1), it shall  
        be lawful for a Planning Authority with the approval of the Director  
        of   Town   Planning   and   subject   to   the   provisions   of   section   68   to  
        provide for suitable amendment of the Development plan."



As can  be  seen, Section  59 states two things: firstly  the  opening  part  of sub-


section 1 of Section 59 states that the T.P. scheme is to be prepared "subject to  


the   provisions   of   this   Act".     Thereafter,   Sub-section   1(a)   of   this   section 


specifically   states   that   the   planning   authority   is   to   prepare   one   or   more   T.P. 


schemes for the area within its jurisdiction "for the purpose of implementing the 


proposals in the final Development Plan".  Thus, Section 39 read with Section 59  


do indicate the approach of legislature, namely, superiority of the D.P. plan over  


the T.P. scheme.



65.              The learned senior counsel for the developer, Shri Naphade relied 


on the provisions contained  in Section  59 (1) (b) (i), and 59 (2) of the Act in 


support of his arguments.   Section 59 (1) (b) (i) provides that a town planning  


scheme may make provision amongst others for any of the matters specified in  


                                                53


Section 22 of the Act.  Section 22 lays down as to what ought to be the contents  


of   a   Development   Plan.     Section   59   (2)   states   that   in   making   the   draft   T.P. 


scheme for any of the matters referred to in sub-section 1 (b), it shall be lawful 


for a planning authority to provide for suitable amendments of the Development 


Plan.     It   is,   therefore,   submitted   that   there   is   no   primacy   between   the  


Development Plan and the T.P. scheme.   It is contended that if the purpose of  


the   T.P.   Scheme   is   only   to   implement   the   Development   Plan,   it   will   militate 


against the plain reading of Section 51 (2) and 59 (1) (b) and that, in such a  


case, Section 59 (1) (b) will become otiose.  Shri Naphade, therefore, submitted 


that the D.P. Plan and the T.P. Scheme both are of equal strength.  



66.              While   examining   this   submission,   we   must   note   that   Section   39 


requires the T.P. scheme to be varied to the extent necessary in accordance with 


the final Development Plan.  The provision in Section 59 (1) (b) (i) is infact made  


to   see   to   it   that   there   is   no   conflict   between   the   T.P.   scheme   and   the 


Development Plan.  Otherwise, the question will arise as to what meaning will be 


given to Section 59 (1) (a) which specifically states that the T.P. scheme is to be  


prepared for the purpose of implementing the proposals in the final Development 


Plan. Merely because Section 59 (1) (b) provides that the T.P. scheme may make 


provision for any of the matters specified in Section 22, the T.P. scheme cannot  


be placed on the same pedestal as a Development Plan.  Section 59 (2) is only 


an   enabling   provision.   It   may   happen   that   in   a   given   situation   a   suitable 


amendment   of   the   Development   Plan   may   as   well   become   necessary   while 


seeing to it that the T.P. scheme is in consonance with the Development Plan. 


                                                  54


Section 59 (2) will only mean that the legislature has given an elbow room to the 


planning   authority  to   amend   the  Development  Plan   if   that  is  so  necessary,   so 


that  there is no conflict  between  the T.P.  Scheme  and  the D.P.  Plan.    In fact 


what   is   indicated   by   stating   that   "it   shall   be   lawful   to   carry   out,   such   an  


amendment"   is   that   normally   such   a   reverse   action   is   not   expected,   but   in   a  


given case if it becomes so necessary, it will not be unlawful.  Use of this phrase 


in fact shows the superiority of the D.P. Plan over the T.P. scheme.  Besides, the 


phrase   put   into   service   in   this   sub-section   is   only   `to   provide   for   a   suitable  


amendment'.  This enabling provision for an appropriate amendment in the D.P. 


plan cannot therefore, be raised to the level of the provision contained in Section  


39 which mandates that the planning authority shall vary the T.P. scheme if the 


final   D.P.   Plan   is   in   variation   with   the   T.P.   Scheme   sanctioned   before   the 


commencement   of   the   MRTP   Act.     It   also   indicates   that   subsequent   to   the 


commencement of the Act, a T.P. Scheme will have to be inconsonance with the  


D.P.  Plan.   Similarly,  Section  59 (1) (b) (i)  cannot take away the force  of  the 


provision contained in Section 59 (1) (a) of the Act.   As noted above, Section 39 


specifically directs that the planning authority shall vary the T.P. scheme to the  


extent   necessary   by   the   proposal   made   in   the   final   Development   Plan,   and 


Section   59   (1)   (a)   gives   the   purpose   of   the   T.P.   scheme,   viz.   that   it   is   for 


implementing   the   proposals   contained   in   the   final   Development   Plan.     Under 


Section 31 (6) of the act, a Development plan which has came into operation is  


binding on the planning authority.  The Planning Authority cannot act contrary to  


D.P. plan and grant Development permission to defeat the provision of the D.P.  


                                                55


plan.     Besides,   it   cannot   be   ignored   that   a   duty   is   cast   on   every   planning 


authority   specifically   under   Section   42   of   the   Act   to   take   steps   as   may   be  


necessary to carry out the provisions of the plan referred in Chapter III of the  


Act,   namely   the   Development   Plan.     Section   46   of   the   Act   also   lays   down 


specifically   that   the   planning   authority   in   considering   an   application   for 


permission   for   development   shall   have   "due   regard"   to   the   provisions   of   any 


draft or any final plan or proposal submitted or sanctioned under the Act.     It  


indicates that the moment a Draft Plan is proposed, a permission for a contrary  


development can no more be granted, since it will lead to a situation of conflict.  


Section 52 of the Act in fact provides for penalty for unauthorised development  


or for use otherwise then in conformity with the development plan.  Thus, when 


it comes to the development in the area of a local authority, a conjoint reading 


of the relevant sections makes the primacy of the Development Plan sufficiently  


clear.



67.             Much emphasis was laid on Section 69 (6) which reads as follows:-


                "(6)  The provisions of Chapter IV shall, mutatis mutandis,  
       apply in relation to the development and use of land included in a  
       town planning scheme in so far as they are not inconsistent with  
       the provisions of the Chapter."


                It was, therefore, submitted that thus the provisions of Chapter IV  


which   are   about   the   Control   of   Development   and   use   of   land   included   in   the 


Development Plan, are mutatis mutandis applicable to the development and the 


use of land included in the T.P. scheme, and therefore  the D.P. plan and T.P.  


scheme are on par.


                                                 56


68.              Now, it is material to note that sub-sections (1) to (5) of Section 69 


operate when the draft T.P. scheme is under preparation.   Sub-section (6) will  


have to be read on that background because this sub-section itself states that 


provisions   of   Chapter   IV  will   apply   in   relation   to   the   development   of   the   land 


included in a T.P. scheme "in so far as it is not inconsistent with the provision of  


this Chapter", i.e. Chapter V on Town Planning Schemes wherein Section 69 is 


placed.    Chapter  IV is  on  control of  Development  and  use  of  land  included  in 


Development Plans.   And as noted above, Section 59 (1) (a) which is the first 


section of Chapter V clearly contains the direction that the T.P. scheme is to be 


prepared for the purpose of implementing the proposals in the final Development 


Plan.   Therefore, merely because by incorporating the provisions of Chapter IV 


those provisions are made applicable to T.P. schemes, the mandate of Section 59 


(1) (a) cannot be lost sight of.



69.              It   is   then   submitted   by   the   appellant   that   the   Development   Plan 


and   the   T.P.   scheme   operate   independent   of   each   other,   and,   until   the   State 


Government exercises its power of eminent domain under the Development Plan, 


and acquire  the land, the landowner  can develop  his property  as per the user 


permitted under the T.P. scheme.  In view of the scheme of the relevant sections  


and particularly Section 46 which we have noted above, this submission cannot 


be accepted.  It will mean permitting a development contrary to the provisions of  


the Development Plan, knowing fully well that the user under the T.P. scheme is 


at   variance   with   the   Development   Plan.     Any   such   interpretation   will   make 


provisions of Section 39, 42, 46 and 52 meaningless.  


                                                57


70.             There is one more aspect of the matter.  Section 43 of the Act lays 


down   that   after   the   date   on   which   the   declaration   of   intention   to   prepare   a 


Development  Plan is published,  no person shall carry out any development  on 


land without the permission of the Planning Authority.  The principal part of this 


section reads as follows:-


                "43. Restrictions on development of land


                After   the   date   on   which   the   declaration   of   intention   to  
        prepare   a   Development   plan   for   any   area   is   published   in   the  
        Official   Gazette   [or   after   the   date   on   which   a   notification  
        specifying any undeveloped area as a notified area, or any area  
        designated   as   a   site   for   a   new   town,   is   published   in   Official  
        Gazette] no person shall institute or change the use of any land  
        or carry out any development of land without the permission in  
        writing of the Planning Authority."



71.             This   section   will   have   to   be   read   along   with   the   requirement  


provided in Section 39.   Section 39 provides for a T.P. Scheme sanctioned and  


subsisting   prior   to   the   Development   Plan.     The   section   mandates   that   such   a 


prior scheme shall be varied to the extent necessary by the proposals made in 


the  final  Development  Plan.    Section   43  provides   that  once   the  declaration   of 


intention to prepare a Development Plan is gazetted, no development contrary  


thereto   can   be   permitted.     As   provided   under   Section   59   (1)   (a),   the   town 


planning   scheme   is   to   be   prepared   for   the   purpose   of   implementing   the 


proposals in the final Development Plan.   Therefore, even if such a variation as  


directed under Section 39 does not take place, the land cannot be put to use in 


any way in contradiction with the provision in the D.P. Plan.  In the instant case, 


we have a provision of the T.P. Scheme effective from 15.8.1979 as against the  


D.P. Plan containing a contrary provision which was notified on 18.9.1982.  Shri 


                                                58


Dholakia, learned senior counsel appearing for the State Government, therefore, 


rightly submitted that in view of Section 165 of the MRTP Act, if the construction  


was completed, partly started or plans were submitted, or any such appropriate 


steps were taken prior to 18.9.1982, the same could have been permitted.  Once  


the   State   Government   published   the   draft   Development   Plan   on   18.9.1982, 


providing   for   the   reservation   for   a   primary   school,   any   construction   contrary 


thereto   could   not   be   permitted.     This   can   only   be   the   interpretation   of   the  


provisions contained in Section 39 read with Section 43 and Section 165 of the 


MRTP  Act.   For convenience,  we may refer  to Section  165 (1) and (2),  which 


read as follows:-





                "165. Repeal and saving.


                (1)      The Bombay Town Planning Act, 1954 and sections  
                         219 to 226A and clause (xxxvi) of sub-section (2) of  
                         section 274 of the Maharashtra Zilla Parishads and  
                         Panchayat Samitis Act, 1961, are hereby repealed.


                (2)      Notwithstanding   the   repeal   of   the   provisions  
                         aforesaid,   anything   done   or   any   action   taken  
                         (including   any   declaration   of   intention   to   make   a  
                         development   plan   or   town   planning   scheme,   any  
                         draft   development   plan   or   scheme   published   by   a  
                         local   authority,   any   application   made   to   the   State  
                         Government   for   the   sanction   of   the   draft  
                         development plan or scheme, any sanction given by  
                         the   State   Government   to   the   draft   development  
                         plan or scheme or any part thereof, any restriction  
                         imposed   on   any   person   against   carrying   out   any  
                         development work in any building or in or over any  
                         land or upon an owner of land or building against  
                         the erection or re-erection of any building or works,  
                         any   commencement   certificate   granted,   any   order  
                         or   suspension   of   rule,   bye-law,   regulation,  
                         notification   or   order   made,   any   purchase   notice  


                                                 59


                         served on a local authority and the interest of the  
                         owner   compulsorily   acquired   or   deemed   to   be  
                         acquired by it in pursuance of such purchase notice,  
                         any revision of development plan, any appointment  
                         made   of   Town   Planning   Officer,   any   proceeding  
                         pending before, and decisions of, a Town Planning  
                         Officer, any decisions of Board of Appeal, any final  
                         scheme   forwarded   to,   or   sanctioned,   varied   or  
                         withdrawn by the State Government, any delivery of  
                         possession enforced, any eviction summarily made,  
                         any   notice   served,   any   action   taken   to   enforce   a  
                         scheme,   any   costs   of   scheme   calculated   and   any  
                         payments   made   to   local   authorities   by   owners   of  
                         plots included in a scheme, any recoveries made or  
                         to   be   made   or   compensation   awarded   or   to   be  
                         awarded   in   respect   of   any   plot,   any   rules   or  
                         regulations   made   under   the   repealed   provisions  
                         shall be deemed to have been done or taken under  
                         the   corresponding   provisions   of   this   Act,   and   the  
                         provisions   of   this   Act   shall   have   effect   in   relation  
                         thereto."



72.               The learned senior counsel Shri Virendra Tulzapurkar appearing for 


the   tenants   went   to   the   extent   of   contending   that   by   provisions   in   the   T.P.  


Scheme are superior to those in the D.P. Plan.  In support to his submission he  


relied   upon   the   judgment   of   a   Division   Bench   of   Gujarat   High   Court   in 


Gordhanbhai Vs. The Anand Municipality & Ors.  reported in  XVI (1975) 


Gujarat   Law   Report   558  which   was   under   the   Bombay   Town   Planning   Act 


1954 (the 1954 Act for short) as applicable  to Gujarat.   The petitioner therein 


was aggrieved by the development permission granted by the Anand Municipality  


to the respondents Nos. 4 to 12 to put up a structure on the plot adjoining to his 


plot.       One   of   the   objections   raised   by   the   petitioner   was   that   the   disputed  


construction  did  not observe  the  margins  prescribed  in the  regulations  framed 


under the Development Plan (comparable to the D.C. regulations in the present 


                                                   60


case).   The respondents pointed out that the regulations which were published  


and sanctioned by the State Government as a part of the T.P. scheme specifically 


provided  that no  margin  should  be  imposed  on  the particular  final plot  of  the  


respondents Nos. 4 to 12.   In view thereof, the Division Bench in para 6 of its 


judgment   referred   to   Section   18   (2)   (k)   of   the   1954   Act   which   specifically 


provided that the Town Planning scheme may provide for the suspension, so far 


as may be necessary for the proper carrying out of the scheme of any rule, by-


law, regulation, notification or order made or issued under any Act of the State  


Legislature.    Since that had been  done,  the permission for construction  in the  


particular   case   could   not   be   faulted.     It   was   in   this   context   that   the   Division  


Bench observed that the provisions of the scheme which are contrary to those 


regulations shall prevail over the same. It is material to note that this provision in 


Section 18 (2) (k) of the 1954 Act is pari-materia to Section 59 (1) (b) (iii) of the 


MRTP Act.   It is also material to note that like Section 59 (1) (a) of the MRTP 


Act, Section 18 (1) of the 1954 Act provides as follows:-





                 "Making and contents of town planning scheme


                 18.     Subject to the provisions of this Act or any other law  
                         for the time being in force:-
                          (1)      a   local   authority   for   the   purpose   of  
                                   implementing   the   proposals   in   the   final  
                                   development   plan   may   make   one   or   more  
                                   town   planning   schemes   for   the   area   within  
                                   its jurisdiction or any part thereof;"


                 Section 18 of the 1954 Act as well as Section 59 of the MRTP Act 


provide  for suspension of the regulations in a given case by making a specific  


                                                 61


provision in the T.P. scheme, which is basically with the object of implementing 


the proposals in the Final Development Plan. This judgment cannot therefore be 


relied   upon   to   canvass   a   general   proposition   that   the   provisions   in   the   Town 


Planning scheme are superior to the Development Plan.  



                 The need for a holistic interpretation 



73.              The provision  of  a statute are required  to  be read  together  after 


noting   the   purpose   of   the   Act,   namely   that   there   should   be   an   orderly  


development   in   the   region,   local   authority   as   well   as   in   the   town   area.     The 


MRTP Act does not envisage a situation of conflict.   Therefore one will have to 


iron   out   the   edges   to   read   those   provisions   of   the   Act   which   are   slightly  


incongruous, so that all of them are read in consonance with the object of the  


Act, which is to bring about an orderly and planned development.  The provision  


of   Section   165   can   not   be   read   to   mean   a   right   to   carry   out   a   development  


contrary to the Development Plan, and in any case without a valid development  


permission particularly when the landowner had not taken any step in pursuance 


to the erstwhile T.P. scheme nor had objected to the changes brought in by the 


authorities   by   following   the   due   process   of   law.     The   submissions   of   Shri  


Naphade and Tulzapurkar with respect to the alleged conflict between T.P. and 


D.P. can not, therefore, be accepted.



74.              The   observations   of  O.   Chinnappa   Reddy   J.   in   para   33   of   the 


Judgment in  Reserve Bank of India Vs. Peerless Corpn.  reported in  [AIR 


1987 SC 1023 = 1987 (1) SCC 424] are instructive in this behalf - 


                                                62


                "33.  Interpretation   must   depend   on   the   text   and  
        the context. They are the bases of interpretation. One may well  
        say  if the text  is  the  texture,  context   is  what  gives  the colour.  
        Neither   can   be   ignored.   Both   are   important.                    That  
        interpretation   is   best   which   makes   the   textual  
        interpretation   match   the   contextual.  A   statute   is   best  
        interpreted   when   we   know   why   it   was   enacted.   With   this  
        knowledge, the statute must be read, first as a whole and then  
        section by section, clause by clause, phrase by phrase and word  
        by word. If a statute is looked at, in the context of its enactment,  
        with the glasses of the statute-maker, provided by such context,  
        its  scheme,  the  sections,  clauses,  phrases  and words  may  take  
        colour  and  appear  different   than  when   the statute  is   looked  at  
        without the glasses provided by the context. With these glasses  
        we   must   look   at   the   Act   as   a   whole   and   discover   what   each  
        section, each clause, each phrase and each word is meant and  
        designed to say as to fit into the scheme of the entire Act.   No  
        part   of   a   statute   and   no   word   of   a   statute   can   be  
        construed in isolation. Statutes have to be construed so  
        that   every   word   has   a   place   and   everything   is   in   its  
        place."......

                                                       (emphasis supplied)



75.             The   counsel   for   the   landowner   criticised   the   impugned   judgment 


for accepting the observations of another Division Bench of Bombay High Court 


in  Rusy Kapadia v. State of Maharashtra  reported in  [1998 (2) ALL MR 


181], In that matter certain private land was reserved in the D.P. plan of Pune 


for a public park. The landowner had no objection to the same, but the land was  


not acquired.  The landowner sold the land to some other persons, who moved 


the Government for de-reservation of the land to use it for residential purpose. 


The   Government   invited   objections   under   Section   37   of   the   MRTP   Act   and 


thereafter   issued   the   notification   granting   de-reservation.     At   that   stage   some 


other citizens filed this PIL challenging that notification on the ground that the 


land was ear-marked for environmental purposes and should not be de-reserved.  


It was submitted in that matter on behalf of the purchasers of the land that in  


                                              63


the T.P. scheme the use for residential purpose was permissible, and since the 


T.P. scheme was sanctioned subsequent to the development plan, it shall prevail.  


Rejecting that argument, the Division Bench observed in para 8 of its judgment 


as follows:-


                "......  We heard and also perused  the provisions with the  
       assistance   of   the   Ld.   Counsel   for   the   parties.     Town   Planning  
       Scheme is provided and dealt with by Chapter V of the Act.  This  
       Chapter has beginning with Section 59 and opening of the section  
       itself refers that the provisions of this Chapter are subject to the  
       provisions of the Act.  The provisions precedent to section 59 are  
       from section 1 to section 58 which include section 31, sub-section  
       (6) which proclaims that the Draft Plan is final and binding on the  
       Planning Authority.   As such the binding force would carry even  
       when   they   anyway   deal   with   the   Town   Planning   Scheme.  
       Besides this section  39 and section  42 of the Act unequivocally  
       indicate that the Development Plan has to definitely prevail over  
       anything and everything including the Town Planning Scheme.  In  
       view of this the submission is without any merit."



76.             The Division Bench deciding Rusy Kapadia's case (supra) referred 


to para 25 of the Judgment of this Court in Bangalore Medical Trust Vs. B.S. 


Muddapa  reported   in  [1991   (4)   SCC   54]  to   emphasize   the   importance   of 


protecting environment. The High Court quashed the decision of the Government 


granting  de-reservation but kept it in abeyance for a period  of two years, and 


directed that if during this period the private respondents (i.e. purchasers of the 


land) provided adequate green area as envisaged in the development plan, this 


order will not operate.   This order of the High Court in  Rusy Kapadia  (supra) 


was challenged by those private respondents, the judgment in which Appeal is 


reported   in   the   case   of  Raju   S.   Jethmalani   Vs.   State   of   Maharashtra 


reported in [2005 (11) SCC 222].  This Court in the case of Raju Jethmalani 


                                                64


noted that the observations in Bangalore Medical Trust were in the context of 


Section 38 (A) of that Act.   The Court also noted that though the development  


plan   provided   the   area   for   the   garden,   no   proceedings   for   acquisition   of   the 


concerned plot had ever been initiated.  In that context, the court observed that  


there is no prohibition for preparing the development plan comprising the private  


land,   but   the   plan   cannot   be   implemented   unless   the   said   private   land   was 


acquired.  It was for this reason that the court allowed the appeal and set aside 


the order in  Rusy Kapadia's case, but this time directed the petitioners of the 


PIL (i.e. Rusy Kapadia & Ors.) to raise funds in six months if they wanted the 


park to be maintained,  in order  to assist the Government to acquire  the land,  


failing which it will be open to the appellants to develop the land.  This direction  


was   given   because   the   State   Government   and   PMC   had   expressed   inability   to 


raise the necessary funds to acquire the concerned plot of land.   It is material to 


note   that   in  Raju   Jethmalani's  case   this   Court   did   not   deal   with   the 


controversy concerning the superiority of the Development Plan vis-a-vis the T.P. 


scheme,   nor   can   the   Judgment   be   read   as   laying   down   a   proposition   that 


development   contrary   to   the   D.P.   plan   is   permissible.   The   observations   in   the 


case of Rusy Kapadia as quoted above are approved in the presently impugned 


judgment, and have been once again reiterated by another Division Bench of the 


Bombay   High   Court   in  Indirabai   Bhalchandra   Bhajekar   Vs.   The   Pune 


Municipal Corporation and Ors., reported in [2009 (111) Bom LR 4251]. 


Having noted the inter-relation  amongst the various sections of the statute, in 


                                                65


our view, it cannot be said that the T.P. scheme is either superior or of equal  


strength as the Development Plan.



77.             The   counsel   for   the   developer   then   relied   upon   the   judgment   of 


this Court in Laxmi Narayan Bhattad Vs. State of Maharashtra reported in 


[2003 (5) SCC 413] for further supporting the submission in this behalf.  The 


appellant   in   this   case   was   allotted   an   alternative   plot   of   land   and   monetary  


compensation under an award when part of his land was acquired to implement  


the T.P. scheme finalized in 1987.   The appellant however wanted additionally 


the   Transferable   Development   Rights   (TDR)   as   provided   under   Development 


Control   Regulations   framed   later   in   1991.     This   Court   declined   to   accept   the 


submission of the appellant.   It was held that the appellant will be eligible only  


for the benefits under the T.P. scheme, since the acquisition of his land was to  


implement   the   same.     The   D.C.   Regulations   of   1991   had   come   subsequently. 


There   was   no   provision   for   TDR   under   the   T.P.   scheme   and   therefore,   the  


appellant   could   not   get   T.D.R   which   are   provided   subsequently   in   the   D.C.  


Regulations of 1991.  This judgment also cannot be read as laying down that the 


T.P. scheme will prevail over or is of equal strength as the D.P. plan.



78.             Thus   from   the   analysis   of   the   relevant   provisions   and   the 


judgments it is clear that the right claimed under the erstwhile T.P. scheme could 


not be sustained in the teeth of the reservation for a Primary school under the 


1987 D.P. plan.  The submission in this behalf cannot be accepted.


                                                66


        Additional   submissions   in   this   Court   in   defence   of   the 

        Government Order:-



79.             The appellants came up with some more submissions in this Court. 


They   submitted   that   the   shifting   was   protected   under   Rule   6.6.2.2,   and   the  


reference to Rule 13.5 in the Government's order dated 3.9.1996 was erroneous. 


Now, this Rule 6.6.2.2 reads as follows:-


                "6.6.2.2  In   specific   cases   where   a   clearly   demonstrable  
        hardship   is   caused   the   Commissioner   may   by   special   written  
        permission
                (i) Permit any of the dimensions/provisions prescribed by  
        these rules   to  be modified  provided   the relaxation  sought does  
        not   violate   the   health   safety,   fire   safety,   structural   safety   and  
        public   safety   of   the   inhabitants,   the   buildings   and   the  
        neighborhood.     However,   no   relaxation   from   the   set   back  
        required from the road boundary or FSI shall be granted under  
        any circumstances.
                While   granting   permissions   under   (i)   conditions   may   be  
        imposed on size, cost or duration of the structure abrogation of  
        claim of compensation payment of deposit and its forfeiture for  
        non-compliance and payment of premium."


                As can be seen from this Rule it provides for variations with respect 


to dimensions and structural requirements.  This rule 6.6.2.2 is a part of Rule 6 


which contains the `Procedure for obtaining building permission/ commencement 


certificates'.   It does not deal with shifting of a particular reservation from one 


plot  to  another which  is covered  under  Rule  13.5 (with certain  restrictions)  to 


which we have already referred.  Thus Rule 6.6.2.2 has no application at all.



80.             The   request   of   the   landowner   was   to   shift   the   reservation   of   a 


primary   school   from   F.P.   No.   110,   and   to   grant   him   the   permission   for 


development under Section 45 of the Act.  It is also material to note that though  


subsequent to the Government orders, Commencement Certificates were issued, 


                                                  67


there was no order specifically setting aside the earlier order of the City Engineer 


of   PMC   passed   under   Section   45   of   the   MRTP   Act   rejecting   the   building 


permission by his letter/order dated 6.11.1995.   We are, therefore, required to 


infer   from   the   Commencement   Certificate   which   refers   to   Section   44   and   45 


(alongwith other sections) that the appeal against the order of the City Engineer  


is impliedly allowed under Section 47 of the Act.  This is because there is no such 


specific mention of reversal of the order dated 6.11.1995 even in the aforesaid 


order of the State Government dated 3.9.1996.



81.              It   was   therefore   contended   on   behalf   of   the   developer   that   the 


order passed by the Government made a reference to a wrong provision of law. 


It was submitted that Section 47 was erroneously relied upon, and the order was 


in fact an order passed under Section 50 of the Act.  


                 Section 50 reads as follows:-


                 "50.   Deletion   of   reservation   of   designated   land   for 

       interim draft of final Development Plan.


                 (1)     The   Appropriate   Authority   (other   than   the   Planning  
       Authority), if it is satisfied that the land is not or no longer required  
       for   the   public   purpose   for   which   it   is   designated   or   reserved   or  
       allocated in the interim or the draft Development plan or plan for  
       the area of Comprehensive development or the final Development  
       plan, may request--
                          (a) the Planning Authority  to sanction the deletion  
             of   such   designation   or   reservation   or   allocation   from   the  
             interim or the draft Development plan or plan for the area of  
             Comprehensive development, or

                          (b) the State Government to sanction  the deletion  
             of such designation or reservation or allocation from the final  
             Development plan.

                 (2)      On   receipt   of   such   request   from   the   Appropriate  
         Authority,   the   Planning   Authority,   or   as   the   case   may   be,   the  
         State Government may make an order sanctioning the deletion of  


                                                68


        such   designation   or   reservation   or   allocation   from   the   relevant  
        plan:


                 Provided that, the Planning Authority, or as the case may  
        be, the State Government may, before making any order, make  
        such enquiry as it may consider necessary and satisfy itself that  
        such   reservation   or   designation   or   allocation   is   no   longer  
        necessary in the public interest.

                 (3)     Upon   an  order   under  sub-section   (2)   being  made,  
        the land shall be deemed to be released from such designation,  
        reservation, or, as the case may be, allocation and shall become  
        available   to   the   owner   for   the   purpose   of   development   as  
        otherwise   permissible   in   the   case   of   adjacent   land,   under   the  
        relevant plan."



                 As can be seen, Section 50 provides for deletion of a reservation at 


the instance of an Appropriate authority (other than the planning authority) for  


whose benefit  the reservation  is made.    Such  is not the  present  case.    Under  


sub-section (1) of Section 50, the appropriate authority has to be satisfied that  


the   land   is   not   required   for   the   public   purpose   for   which   it   is   reserved. 


"Appropriate authority" is defined under Section 2 (3) of the Act to mean a public 


authority on whose behalf the land is designed for a public purpose in any plan 


or   scheme   and   which   it   is   authorised   to   acquire.     In   the   instant   case,   the 


acquiring body is PMC, and it will mean the general body of PMC.  Assuming that 


the section applies in the instance case, the general body has to be satisfied that 


the land is no longer required for the public purpose for which it is designed or 


reserved.  In the instant case, it is on the direction of the Minister of State that 


the Municipal Commissioner has given a report which has been used by the State 


Government to pass an order of shifting the reservation from F.P. No.110.  The 


officers   of   the   Planning   Authority   as   well   as   of   the   concerned   Government 


                                                 69


department were not in favour of deleting the reservation.  The Commissioner's 


opinion   could   not   have   been   treated   as   the   opinion   of   PMC.     Under   certain  


circumstances   the   Municipal   Commissioner   can   act   on   behalf   of   the   Municipal 


Corporation, and those sections are specifically mentioned in Section 152 of the 


MRTP   Act.     Section   50   is   not   one   of   those   sections   and,   therefore,   the   State  


Government   could   not   have   made   any   such   order   sanctioning   the   deletion   of 


reservation on the basis of the report of the Municipal Commissioner.  Section 50 


is, therefore, of no help to the appellants.



82.              One of the sections which was pressed into service to defend the 


directions   of   the   State   Government   dated   3.9.1996   and   29.7.1998   and   the 


actions of the Municipal Commission was Section 154 (1) of the MRTP Act.  This 


section reads as follows:-


                 "154. Control by State Government


                 (1)      Every   Regional   Board,   Planning   Authority   and  
                 Development   Authority   shall   carry   out   such   directions   or  
                 instructions as may be issued from time to time by the State  
                 Government for the efficient administration of this Act.
                 (2)      If in, or in connection with, the exercise of its powers  
                 and   discharge   of   it   functions   by   any   Regional   Board,  
                 Planning Authority or Development Authority under this Act,  
                 any   dispute   arises   between   the   Regional   Board,   Planning  
                 Authority   or   Development   Authority,   and   the   State  
                 Government, the decision of the State Government on such  
                 dispute shall be final."



        It was submitted that the State Government was thus entrusted with the  


over-all control in the interest of efficient administration, and its directions had to 


be followed by the Planning Authority, and such directions could not be faulted 


on  any count.    In a  similar  situation  in  Bangalore  Medical   Trust  (supra),  a 


                                                    70


reservation for a public park was sought to be shifted for the benefit of a private  


nursing home.   Amongst others Section 65 of the Bangalore Development Act, 


1976 was sought to be pressed into service which authorised the Government to  


issue directions to carry out the purposes of the act.  This Court observed in para 


52   of   that   judgment   that   the   section   authorises   the   Government   to   issue 


directions to ensure that provisions of law are obeyed and not to empower itself 


to   proceed   contrary   to   law.     In   the   present   matter,   it   is   to   be   seen   that   the  


section   provides   for   directions   or   instructions   to   be   given   by   the   State 


Government for the efficient administration of the Act.  This implies directions for 


that purpose which are normally general in character, and not for the benefit of 


any   particular   party   as   in   the   present   case.     The   provisions   of   law   cannot   be 


disregarded and ignored merely because what was done, was being done at the  


instance of the State Government.   Consequently, Section 154 cannot save the  


directions   issued   by   the   State   Government   or   the   actions   of   the   Municipal 


Commissioner in pursuance thereof.       



83.               Thus,   the   reliance   on   these   provisions   is   of   no   use   to   the 


appellants.   It was submitted that while passing the order the Government has 


referred to a wrong provision of law and reference to a wrong provision of law 


does not vitiate the order  if the order  can be traced  to a legitimate  source  of 


power.     Reliance   was   placed   on   the   judgment   of   this   Court   in  PR   Naidu  v. 


Government of Andhra  Pradesh  (reported in  AIR 1977 SC 854) =  [1977 


(3) SCC 160] and VL and Co. v. Bennett Coloman and Co. [AIR 1977 SCC 


1884] = [1977 (1) SCC 561].   In the instant case, however, the order of the 


                                                 71


Government dated 3.9.1996 cannot be traced to any legitimate source of power, 


and therefore, the situation cannot be remedied by reference to other sources of 


power.   The Division Bench has therefore, rightly commented on this submission 


in paragraph  180 of its judgment that `the rub is that the action taken by the  


Planning authority was otherwise not legal and justified'.  It could not therefore 


be justified by reference to other provisions of law because basically the decision 


itself was illegal. 



84.              Thus the submission canvassed on behalf of the appellants is that 


although the landowner never objected to the reservation either for a garden or 


a primary school during the process of the revision of the D.P. Plan during 1982  


to 1987, and although he had received the compensation for its acquisition, he 


retained   the   right   to   develop   the   property   for   residential   purposes   merely 


because   under   the   erstwhile   Town   Planning   scheme   residential   use   was 


permissible, and it is supposed to be saved under Section 165 (2) of the MRTP  


Act.  However, as seen from the conjoint reading of Section 39, 42 and 46, and 


the   scheme   of   the   Act,   such   a   submission   cannot   be   accepted.   That   apart, 


ultimately   it   was   contended   on   his   behalf   the   deletion   of   the   reservation   of   a 


primary  school on this plot  u/s 37 of  the MRTP  Act  is not necessary, and the  


order passed by the State Government in his favour can be explained u/s 50 of  


the MRTP Act read with D.C. Rule 6.6.2.2.  As we have seen Section 50 as well 


as D.C. Rule 6.6.2.2. have no application to the present case, nor can the power 


of   the   State   Government   under   Section   154   of   the   Act   help   the   appellants.  


Besides,   independent   of   one's   right   either   under   the   D.P.   Plan   or   the   T.P. 


                                                72


Scheme,   one   ought   to   have   a   permission   for   development   granted   by   the 


planning authority traceable to an appropriate provision of law.   In the present 


case there is none.   The appellants are essentially raising all these submissions 


to   justify   a   construction   which   is   without   a   valid   and   legal   development 


permission.   The appellants have gone on improving and tried  to change their 


stand from time to time with a view to justify Government's order in their favour. 


However, "Orders are not like old wine becoming better as they grow older" as 


aptly   stated   by   Krishna   Iyer   J.   in   para   8   of  Mohinder   Singh   Gill   Vs.   Chief 


Election   Commissioner,   New   Delhi    reported   in  1978   (1)   SCC   405.  The 


submissions of the appellants in defence of the decision of the State Government 


are devoid of any merit and deserve to be rejected. 



        Legality of the acquisition of the land:


        Whether the acquisition lapses on account of change of purpose 

        of acquisition



85.             As   seen   earlier,   the   letter   of   the   landowner   had   led   to   the 


subsequent steps for acquisition.   The landowner was interested in good return 


for his land.  The tenants were interested only in the rehabilitation on the same 


plot of land.   That was their stand until the award dated 12.5.1983.   The Civil  


Court has held the acquisition for the changed purpose under the D.P Plan as 


bad   in   law   on   the   ground   that   the   initially   designated   public   purpose   for 


acquisition was changed.   Was the civil suit maintainable?   Was the view taken 


by the Civil Court a correct view?  We are required to go into that question also, 


                                               73


since the order of the Civil Court is sought to be defended by the landowner as  


well as by the developer.



86.             The Learned Civil Judge Senior Division set aside the award by his 


judgment and decree dated 23.4.1990 on the ground that though the land was  


initially proposed to be acquired for a garden, it was ultimately to be used for 


another public  purpose i.e.  setting  up a primary school.    It was contended  on 


behalf of the developer that in the instant case the declaration under Section 6 


of the L.A. Act was issued when the land was reserved for a garden, and the  


purpose of acquisition must subsist as initially designated until the possession of 


the land is taken.   The Court accepted the contention that the acquisition had 


lapsed   due   the   change   of   purpose   of   reservation   by   the   time   the   award   was 


made.  In the instant case, the award was made on 12.5.1983, but pursuant to 


the   award   the   possession   of   the   plot   was   not   taken   in   the   circumstances  


mentioned earlier.  According to the appellant the acquisition was not complete, 


and   the   jurisdiction   to   further   continue   with   the   acquisition   was   no   longer 


available.



87.             Two judgments of Bombay High Court were relied upon on behalf 


of the appellants i.e. Industrial Development & Investment Company Pvt. 


Ltd.   Vs.   State   of   Maharashtra  reported   in  1988   Mh.LJ   1027  (which   was 


relied upon by the Learned Civil Judge Senior Division also), and  Santu Kisan 


Khandwe Vs. Special Land Acquisition Officer No. 2 Nasik & Ors reported 


in  1995   (1)   Mh.LJ   363,  in   support   of   the   proposition   that   the   purpose   of 


acquisition must subsists till vesting.    As far as the first judgment of the High  


                                                74


Court in the case of Industrial Development Company is concerned, the same is 


about the provisions of MRTP Act, and it has been specifically overruled by this 


Court   in  Municipal   Corporation   of   Greater   Bombay  Vs.  Industrial 


Development Investment Co. Pvt. Ltd. & Ors. reported in 1996 (11) SCC 


501.    It   was   a   case   where   the   concerned   parcel   of   land   situated   in   Dharavi, 


Mumbai was acquired by the Municipal Corporation under the MRTP Act initially 


for the setting up of a Sewage Purification Plant, but subsequently the land was 


sought to be used for the residential and commercial purposes of its employees, 


since this Sewage Treatment Plant was shifted to another parcel of land.   This 


utilisation was held to be completely valid and permissible by K. Ramaswamy, J.  

88. The appellants before us contended that Majmudar, J., the other

Learned Judge deciding the I.D.I Co’s. case had taken a different view on the

issue of change of user, and therefore, the issue remained undecided, and that

the view taken by the Bombay High Court in the above referred two judgments

deserved acceptance. The appellants submitted that Majmudar, J. agreed with

K. Ramaswamy, J. only to the extent that the petition filed by the respondents

in the High Court deserved to be dismissed on the ground of delay and laches.

As far as the ground of change of purpose is concerned, Majmudar J., expressed

his different opinion in the following few sentences:-

“33. Even though the proposal under Section 126(1) is for
acquisition of land for a specified public purpose, if the planning
authority wants to acquire the land subsequently for any other
public purpose earmarked in the modified scheme as has
happened in the present case that is if the appellant-Corporation
which had initially proposed to acquire the land for extension of
sewerage treatment plant wanted subsequently to acquire the

75

same land for its staff quarters then such a purpose must be
specifically indicated in the plan meaning thereby that the land
must be shown to be reserved for the staff quarters of the
Corporation and then the Special Planning Authority which had
become the appropriate planning authority, i.e., BMRDA would be
required to issue a fresh proposal under Section 126(1) read with
Section 40(3)(e) and Section 116 of the MRTP Act and follow the
gamut thereafter. So long as that was not done the earlier
proposal under Section 126(1) and the consequential notification
by the State Government under Section 126(2) which had lost
their efficacy could not be revitalised……….”

89. The appellants relied upon the judgment of this Court in Special

Land Acquisition Bombay Vs. M/s Godrej & Boyce reported in AIR 1987

SC 2421, in support of their contention, that the purpose for acquisition must

continue until possession is taken. In that matter this Court held that the title to

the land vests in the Government only when the possession is taken. It is

however, material to note that this judgment is concerning Section 16 of the L.A.

Act. As far as this submission is concerned, as held by K. Ramaswamy J., in

I.D.A Co’s case (supra), one must note that the scheme of MRTP Act is different

from that under the L.A. Act. In para 11 and 12 of his judgment in I.D.I Co’s.

case (supra) he has specifically held that Section 126 (1) of the MRTP Act is a

substitute for the notification under Section 4 of the L.A. Act. A declaration

under Section 126 (2) is equivalent to a declaration under Section 6 of the L.A.

Act. The objections of the persons concerned are considered before such land

gets earmarked for public purpose in the plan. Therefore, there is no need of

any enquiry as under Section 5A of the L.A. Act. Section 126 (1) (c) specifically

states that when an application is made to the State Government for acquiring

the land under the L.A. Act, the land vests absolutely with the Planning

76

Authority. Therefore, it was held that in the scheme of the MRTP Act, it is not

necessary that the original public purpose should continue to exist till the award

was made and possession taken.

90. The observations of K. Ramaswamy, J. in paragraph 11 of the

judgment in I.D.A. Co’s case (supra) are relevant in this behalf. This para reads

as follows:-

“11. If we turn to Chapter III of the MRTP Act, we find
that the entire machinery is provided for preparation, submission
and sanction of development plan proceeding from Section 21
and ending with Section 31. These provisions, in short, provide
for preparation of draft development plant by the planning
authority inviting objections of persons concerned against such
proposals, hearing of objections filed by the objectors as per
Section 28 sub-section (3) by the Planning committee and then
submitting its report to the planning authority which ultimately
gets the proposals approved by the State Government under
Section 30. All these provisions do indicate that requirement,
designation, reservation or earmarking of any land for acquisition
for any specified public purpose as indicated in the plan has
already undergone the process of hearing after the objections of
the persons concerned were considered and then such land gets
earmarked for public purpose in the plan. It is after that stage,
therefore, when need to acquire such earmarked, designated or
reserved land for public purpose under the plan arises, that
Section 126(1) proposal gets issued by the planning authority
concerned and which itself becomes a substitute for Section 4(1)
notification under the Act. It would thus, appear that the
scheme of acquisition of earmarked land under the plan
for a specified public purpose thereunder, is a complete
scheme or code under the MRTP Act. It is a distinct and
independent scheme as compared to general scheme of
acquisition under the Land Acquisition Act.”

(emphasis supplied)

91. In this connection, we must note Section 126(1) of the MRTP Act

provides for three modes of acquisition of land for public purposes specified in

the plan. The third mode is by making an application to the State Government

77

for acquiring such land under the L.A. Act, and thereafter the land so acquired

vests absolutely in the Planning Authority. Sections 126(1) and (2) are extracted

herein below for ready reference.

“126 – Acquisition of land required for public purposes
specified in plans

(1) Where after the publication of a draft Regional Plan, a
Development or any other plan or Town Planning Scheme, any
land is required or reserved for any of the public purposes
specified in any plan or scheme under this Act at any time the
planning Authority, Development Authority, or as the case may
be, [any Appropriate Authority may, expect as otherwise provided
in section 113A] [acquire the land,–

(a) by agreement by paying an amount agreed to, or

(b) in lieu of any such amount, by granting the land-owner or the
lessee, subject, however, to the lessee paying the lessor or
depositing with the Planning Authority, Development Authority or
Appropriate Authority, as the case may be, for payment to the
lessor, an amount equivalent to the value of the lessor’s interest
to be determined by any of the said Authorities concerned on the
basis of the principles laid down in the Land Acquisition Act,
1894(I of 1894), Floor Space Index (FSI) or Transferable
Development Rights (TDR) against the area of land surrendered
free of cost and free from all encumbrances, and also further
additional Floor Space Index or Transferable Development Rights
against the development or construction of the amenity on the
surrendered land at his cost, as the Final Development Control
Regulations prepared in this behalf provide, or

(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894(I of
1894),and the land (together with the amenity, if any so
developed or constructed) so acquired by agreement or by grant
of Floor Space Index or additional Floor Space Index or
Transferable Development Rights under this section or under the
Land Acquisition Act, 1894(I of 1890), as the case may be, shall
vest absolutely free from all encumbrances in the Planning
Authority, Development Authority, or as the case may be, any
Appropriate Authority.]

(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for

78

the public purpose therein specified, or [if the State Government
(except in cases falling under section 49 [and except as provided
in section 113A)] itself is of opinion] that any land included in any
such plan is needed for any public purpose, it may make a
declaration to that effect in the Official Gazette, in the manner
provided in section 6 of the Land Acquisition Act, 1894(I of
1894), in respect of the said land. The declaration so published
shall, notwithstanding anything contained in the said Act, be
deemed to be a declaration duly made under the said section:

[Provided that, subject to the provisions of sub-section (4), no
such declaration shall be made after the expiry of one year from
the date of publication of the draft Regional Plan, Development
Plan or any other Plan, or Scheme, as the case may be.]

(3) ……..

(4) ……..”

92. Section 128 of the MRTP Act strengthens the view that we are

taking. Section 128 deals with a situation where the land is sought to be

acquired for a purpose other than the one which is designated in the plan or the

scheme. In that case provisions of the L.A. Act apply with full force. This

Section reads as follows:-

“128. Power of State Government to acquire lands

for purpose other than the one for which it is designated

in draft plan or scheme.

(1) Where any land is included in [any plan or scheme] as
being reserved, allotted or designated for any purpose therein
specified or for the purpose of Planning Authority or Development
Authority or Appropriate Authority and the State Government is
satisfied that the same land is needed for a public purpose
different from any such public purpose or purpose of the Planning
Authority, Development Authority or Appropriate Authority, the
State Government may, notwithstanding anything contained in
this Act, acquire such land under the provisions of the Land
Acquisition Act, 1894(I of 1894).

[(1A) Save as otherwise provided in this Act or any other
law for the time being in force where any land included in any

79

plan or scheme as being reserved, allotted or designated for any
purpose therein specified or for the purposes of a Planning
Authority or Development Authority or Appropriate Authority, is
being acquired by the State Government under the provisions of
the Maharashtra Industrial Development Act, 1961(Mah. III of
1962), for the Maharashtra Industrial Development Corporation
(being the Special Planning Authority deemed to have been
appointed as such under sub-section (1A) of section 40), the
provisions of sub-sections (2) and (3) of this section shall mutatis
mutandis, apply to such acquisition proceedings.]

(2) In the proceedings under the Land Acquisition Act,
1894(I of 1894), the Planning Authority, or Development
Authority or Appropriate Authority, as the case may be, shall be
deemed to be a person interested in the land acquired; and in
determining the amount of compensation to be awarded, the
market value of the land shall be assessed as if the land had
been released from the reservation, allotment or designation
made in the [any plan or scheme] or new town, as the case may
be, and the Collector or the Court shall take into consideration
the damage, if any, that Planning Authority or Development
Authority or Appropriate Authority, as the case may be, may
sustain by reason of acquisition of such land under the Land
Acquisition Act, 1894(I of 1894), or otherwise, and the
proportionate cost of the Development plan or town planning
scheme or new town, if any, incurred by such Authority and
rendered abortive by reason of such acquisition.

(3) On the land vesting, in the State Government under
sections 16 or 17 of the Land Acquisition Act, 1894(I of 1894), as
the case may be, the [relevant plan or scheme] shall be deemed
to be suitably varied by reason of acquisition of the said land.”

Sub-section (1) of this Section states that in such situations the

provision of L.A. Act will apply notwithstanding anything contained in the MRTP

Act, and sub-section (3) specifically states that in such an event the vesting will

take place under Section 16 and 17 of the L.A. Act as the case may be. That is

not the case with respect to the acquisition under Section 126 of the MRTP Act,

where the vesting takes place in the three circumstances mentioned thereunder.

In the present case also the acquisition is resorted to by issuing a notification

80

under Section 126 read with Section 6 of the L.A. Act. The vesting therefore

takes place at that stage.

93. After the declaration is made under Section 126 (2) of the MRTP

Act, the proceedings to determine the compensation follow the procedure as laid

down under the L.A. Act until Section 11 thereof. A notice is given to the

interested persons as required under Section 9 of the L.A. Act to lodge their

claims to compensation for all the interests in such land. Thereafter, they are

heard in the inquiry made by the Collector or the S.L.A.O., and after following

the requirements as laid down in Section 11, the compensation is arrived at. The

change of purpose of utilisation of the land acquired under Section 126 of the

Act does not make any difference in this behalf. There is no prejudice caused to

the landowners since the award is made only after affording them full hearing

concerning their claims for compensation.

94. (i) When it comes to urgency also, there is a separate provision in the

MRTP Act, distinct from the one in the L.A. Act. Section 129 of the MRTP Act

contains provisions different from Section 17 of the L.A. Act. Under sub-Section

(2) of Section 129 there is the requirement of paying to the owner of the land

concerned, an interest @ 4% per annum on the amount of compensation, from

the date of taking possession of the land until the date of payment.

(ii) Thus the MRTP Act contains a separate scheme in Chapter VII of

the Act distinct from the one in L.A. Act. This is because MRTP Act is a special

81

act enacted for the purpose of planned development and the provisions

concerning land acquisition are made therein in that context.

95. We may mention at this stage that recently a Constitution Bench of

this Court has also held in the context of Section 11A of the L.A. Act (providing

for two years period to make the award) in Girnar Traders (3) Vs. State of

Maharashtra & Ors. reported in 2011 (3) SCC 1, that only the provisions with

respect to the acquisition of land, payment of compensation and recourse of

legal remedies under the L.A. Act can be read into Chapter VII of the MRTP Act

concerning Land Acquisition, and Section 11A of the L.A. Act will not apply

thereto. It held that in the scheme of the MRTP Act, the provisions of Land

Acquisition Act would apply only until the making of the award under Section 11

of the Act. The Court held that MRTP Act is a self contained code and Sections

126 to 129 thereof clearly enunciate the intention of the framers that substantive

provisions of L.A. Act are not applicable to MRTP Act. In para 129 of the

judgment the Constitution Bench has specifically held:-

“129. …… Vesting, unlike Section 16 of the Land
Acquisition Act which operates only after the award is made and
compensation is given, whereas under the MRTP Act it may
operate even at the initial stages before making of an award, for
example, under Sections 126(1)(c) and 83.”

96. The appellants herein have contended, and so had the respondents

in I.D.A. Co’s case (supra) contended that the original public purpose should

continue till the award was made and possession taken. While dealing with this

proposition, K. Ramaswamy, J. took an overview of the leading judgments in this

behalf. The Learned Judge in arriving at his conclusions referred to the law laid

82

down by this Court in Ghulam Mustafa Vs. State of Maharashtra reported in

1976 (1) SCC 800, Mangal Oram Vs. State of Orissa reported in 1977 (2)

SCC 46 , State of Maharashtra Vs. Mahadeo Deoman Rai reported in

1990 (3) SCC 579 , Collector of 24 Parganas Vs. Lalit Mohan Mullick

reported in 1986 (2) SCC 138, and Ram Lal Sethi Vs. State of Haryana

reported in 1990 Supp. SCC 11.

97. It is relevant to refer to these judgments. Ghulam Mustafa

(supra) & Mangal Oram (Supra) were both cases concerning the acquisition

under the Land Acquisition Act. In the case of Ghulam Mustafa, V.R. Krishna

Iyer J., observed as follows:-

“…..once the original acquisition is valid and title has
vested in the municipality how it uses the excess land is no
concern of the original owner and cannot be the basis for
invalidating the acquisition. There is no principle of law by which
a valid compulsory acquisition stands voided because long later
the requiring authority diverts it to a public purpose other than
the one stated in the Section 6(3) declaration.”

In Mangal Oram (supra) a bench of three Judges specifically held

that use of land after a valid acquisition for a different public purpose will not

invalidate the acquisition. In Collector of 24 Parganas (supra) the notification

under Section 4 of the West Bengal Land Development and Planning Act was

issued for settlement and rehabilitation of displaced persons. Subsequently the

land was utilised for establishment of a Hospital for crippled children, which was

held to be not vitiated. In Union of India Vs. Jaswant Rai Kochhar reported

in 1996 (3) SCC 491 land acquired for housing scheme was utilised for

commercial purpose i.e. a District Centre. This Court held in that matter that it is

83

will settled law that land sought to be acquired for one public purpose may be

used for another public purpose. In State of Maharashtra Vs. Mahadeo

Deoman Rai reported in 1990 (3) SCC 579 yet another Bench of three Judges

had held that requirement of public purpose may change from time to time but

the change will not vitiate the acquisition proceeding. The opinion rendered by

K. Ramaswamy J. is in conformity with this line of judgments. Following this law,

K. Ramaswamy, J. held in para 22 as follows:-

“22. It is thus well-settled legal position that the land
acquired for a public purpose may be used for another public
purpose on account of change or surplus thereof. The acquisition
validly made does not become invalid by change of the user or
change of the user in the Scheme as per the approved
plan……….. It would not, therefore, be necessary that the original
public purpose should continue to exist till the award was made
and possession taken.”

This being the position, there is no difficultly in stating that the two

judgments of the Bombay High Court which are relied upon by the appellants

(viz. in the cases of I.D.I. Co. (supra) and Santu Kisan Khandwe (supra) do

not lay down the correct position of law. We are in respectful agreement with

the opinion rendered by K.Ramaswamy J. in I.D.I. Co’s Case. The acquisition of

the land in the present case cannot said to be invalid on account of change of

purpose during acquisition.

98. That apart, there is also the question as to whether the Civil Court

had the jurisdiction to entertain a suit to challenge the acquisition after the

award was rendered. This is because when it comes to acquisition, the L.A. Act

provides for the entire mechanism as to how acquisition is to be effected, and

84

the remedies to the aggrieved parties. In State of Bihar Vs. Dhirendra

Kumar & Ors. reported in 1995 (4) SCC 229 this Court in terms held that

since the Act is a complete code, by necessary implication the power of the Civil

Court to take cognizance of a case under Section 9 of the CPC stands excluded,

and Civil Court had no jurisdiction to go into the question of the validity or

legality of the notification under Section 4 and declaration under Section 6, which

could be done only by the High Court in a proceeding under Article 226 of the

Constitution. In view of this dictum the civil suit itself was not maintainable in

the present case.

Conduct of the Landowner/Developer

99. The facts as narrated earlier can be placed into proper prospective

if we note the conduct of the landowner and the developer appointed by him as

it emerges from stage to stage which is as follows:-

(a) The landowner never raised any objection when the F.P. No. 110 was

sought to be reserved for a public purpose, viz. either for a garden/playground

or subsequently for a primary school.

(b) On his issuing the purchase notice to the Government to purchase the

land and to commence the proceedings for acquisition, the State Government

responded by confirming the purchase notice under Section 49 (4) of the Act by

its letter dated 5.12.1979.

(c) When SLAO started the acquisitions proceedings, and when the notice

under Section 9 of the L.A. Act was issued, the landowner replied the same but

85

did not challenge the acquisition as such. He merely demanded compensation at

a rate of Rs. 480 per sq.m, and demanded that the material removed after

demolition of the temporary structures (of the tenants) on the property be

handed over to him.

(d) After the SLAO rejected the objections of the landowner as well as the

tenants, and gave his award dated 12.5.1983, the landowner accepted the

compensation on 15.3.1985, though under protest.

(e) After the Reference Court enhanced the solatium and the special

component by its order dated 15.4.1988, the landowner accepted the enhanced

amount, once again under protest. However, he did not file the statutory appeal

available to him under Section 54 of the L.A. Act.

(f) When the notice to take possession was given, it is the tenants alone who

filed a suit to challenge the acquisition.

(g) After the injunction in that suit No. 966 of 1983 was vacated, the tenants

represented to the Minister of State for UDD, pointing out their difficulties. The

landowner did not challenge the acquisition in any manner whatsoever.

(h) After the Development Plan under the MRTP Act was sanctioned, though

the reservation was continued, the purpose of utilization of the land was

changed in the 1987 D.P. plan from garden to primary school. Thereafter, when

the SLAO gave one more notice to take possession on 1.3.1988, some of the

tenants filed another Civil Suit bearing No. 397 of 1988 in the Court of Civil

86

Judge, Senior Division Pune. It was at that stage that the landowner who was a

defendant in that suit, applied for transposing himself as a plaintiff which

application was allowed on 2.4.1988. The Civil Court having held that the

acquisition had lapsed due to the change of purpose of acquisition (from what it

originally was in 1966), the PMC filed an Appeal which is pending thereafter.

(i) After Shri Manohar Joshi took over as the Chief Minister on 14.3.1995, the

landowner entered into a Development agreement with M/s Vyas Constructions

on 20.10.1995. Besides, he executed two powers of attorney, one in favour of

its proprietor Shri Girish Vyas on 20.10.1995 for carrying out development on

F.P. No. 110, and another in favour of Shri Shriram Karandikar on 26.10.1995 to

take necessary steps concerning this development. Thereafter the follow-up

steps were taken by Shri Karandikar, until the last stage when Shri Girish Vyas

stepped in.

(j) After the City Engineer, Pune rejected the proposal of the Architect of the

landowner for building permission by his reply dated 6.11.1995, the above

referred Shri Karandikar straightaway wrote to the Minister of State for UDD on

20.11.1995, and sought a direction to the Municipal Commissioner to consider

landowner’s application for development of the property. This application was

not addressed to the State Government or to the Secretary concerned, but

straightaway to the Minister of State for UDD, and did not bear any inward

stamp of the department. The noting of the Private Secretary of the Minister of

State in UDD in the margin of the application showed that it was directly

received at the Minister’s level. Thereafter as directed by the Minister of State,

87

the Under Secretary of UDD immediately called a meeting of high ranking

officers such as Secretary UDD, Director Town Planning, Commissioner of PMC,

City Engineer of PMC, and Under Secretary UDD, which meeting would not have

been possible unless one had a clout with the Ministry.

(k) The initial stand of the administration was clearly reflected in the notings,

and in the record of the meeting held on 3.2.1996. The preliminary note dated

2.2.1996 from the department clearly stated that the land had been acquired

after taking the necessary action on the purchase notice, and the compensation

had been accepted. The question of returning of the plot to the landowner

therefore did not arise.

(l) During the meeting held on 3.2.1996 the City Engineer of PMC also

pointed out that landowner had never objected to the reservation on the plot, or

the change in the purpose of its utilization from 1982 to 1987, i.e. during the

entire process of revising the development plan. If the proceeding before the

Minister of State was in the nature of an appeal under Section 47 of the MRTP

Act (against the rejection of the proposal of development) under Section 45, the

same could not be entertained, and the appeal had to be rejected. If it was an

application for de-reservation then it had to be considered under Section 37 of

the MRTP Act and not otherwise.

(m) The landowner initially took the stand that it was not an appeal, but

subsequently wrote a letter on 23.3.1996 through Shri Karandikar that it was an

88

appeal under Section 47 of the MRTP Act. The landowner and the developer

have been changing their stand from time to time.

The conduct of the Minister of State for UDD, the then Chief

Minister, and the Municipal Commissioner

100. We may now refer to the conduct of the then Minister of State for

UDD, the then Chief Minister and the then Municipal Commissioner.

(a) As stated above the application of the landowner was received directly at

the level of the Minister of State and immediately a meeting of high ranking

officers was called, which is normally not done.

(b) In spite of a clear initial stand taken by the City Engineer PMC, as well as

by the senior officers of UDD such as its Secretary, in view of the landowner

submitting that on the adjoining plots schools had been developed, the Minister

of State for UDD asked the Municipal Commissioner to survey the property and

make a report, whether the PMC really needed the concerned property. The

note of the meeting dated 3.2.1996 shows that initially the Minister of State for

UDD was also of the view that if necessary a direction may be issued under

Section 37 of the Act, and only a part of F.P. 110 could be released if PMC did

not have any objection to reduce the area under reservation.

(c) In view of the direction of the Minister of State, the Municipal

Commissioner who is the Chief Executive of PMC and an I.A.S. officer of a high

rank was asked to make a report after personally making a site inspection. A

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direction to a high ranking officer to make a site inspection is not expected in

such a case, and is quite unusual and disturbing to say the least.

(d) In his letter dated 17.4.1996 the Municipal Commissioner reiterated the

earlier stated stand of PMC to begin with, and then gave the report about the

schools in the vicinity. However, he volunteered to add thereafter that private

institutions may not come to this plot to set up a primary school, and PMC may

as well spend its funds elsewhere. This was not correct since the applications of

two reputed educational institutions for this very plot were pending with the

PMC, and this fact was not stated by the Commissioner in his report.

(e) In view of the direction of the State Government, the Commissioner held

discussions with Shri Karandikar, who offered to give an alternate unencumbered

plot of land of about 5000 to 10,000 sq. feet free of cost. Thereafter the

Commissioner recorded in his letter the two proposals given by Shri Karandikar,

and observed that if the school was to be shifted from F.P. No. 110, an action

under Section 37 of the MRTP Act as well as the permission from PMC will be

required.

(f) On 24.4.1996 there is a noting (which is subsequent to the letter of the

Municipal Commissioner dated 17.4.1996) that the file was called by the then

Chief Minister for his perusal. Thus the Chief Minister had kept himself fully

abreast with the developments in this matter.

(g) The UDD department did not accept the proposal of shifting the school

from F.P. No. 110 to a place far away, as seen from the note prepared by the

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department (signed by the Deputy Secretary on 4.6.1996) recording that if the

school was to be shifted from F.P. No. 110, it had to come up in the vicinity of

approximately 200 metres as per rule 13.5 of Pune D.C. Rules. The note

suggested acceptance of the proposal of reduction of 50% of the area under

reservation by resorting to the procedure under Section 37 of MRTP Act.

(h) The Minister of State did not approve this note dated 4.6.1996, and in

view of Shri Karandikar insisting on shifting the school from F.P. No. 110, the

subsequent note dated 13.6.1996 recorded that if the condition of 200 metres is

to be relaxed, orders will have to be obtained from the Chief Minister (which

power is disputed by the Principal Secretary, UDD in his subsequent note dated

24.7.1998).

(i) Thereafter, the developer offered another parcel of land at Lohegaon

(which is a far off place), on which proposal the department prepared a note to

give four directions to PMC which have been referred earlier. Under that

proposal, Lohegaon land was to be exchanged for the concerned F.P. No. 110

which was to be released by invoking DC Rule 13.5, and the landowner was to

return to PMC the amount of compensation received. This note was approved by

the Chief Minister on 21.8.1996 and accordingly a direction was given to the

Municipal Commissioner on 3.9.1996 to accept the proposal of the developer and

issue the development permission for F.P. No. 110.

(j) The Senior Law Officer of the PMC recorded an objection that such

permission will require the approval of the general body of the Municipal

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Corporation, but the Municipal Commissioner overruled him on 21.9.1996, in

view of the direction of the government to act under DC Rule 13.5 as stated

above, and ignored the mandatory provision of Section 37 of MRTP Act.

(k) Thereafter the commencement certificates have been issued on

28.11.1996, and an occupation certificate for the tenants’ building was also given

on 20.12.1997.

(l) At this stage, the land developer Shri Girish Vyas had written on

15.7.1998 to PMC on learning that according to PMC the Lohegaon land was not

suitable for a school. He offered to handover another parcel of land in a

residential zone at Mundhwa (which is also a far off place), and to deposit

whatever amount that was required for the construction of a school of 500 sq.

feet area at Mundhwa or elsewhere, but the Completion Certificate for the

building for the other occupants of F.P. No. 110 (named as Sun-Dew Apartment)

be issued.

(m) There is a clear office note dated 22.7.1998 on record which shows that

there was already a criticism of this matter in the newspapers and in the General

Body of PMC, that one educational amenity in that area was being destroyed.

The note recorded that Sr. Chief Secretary of Chief Minister had issued

instructions, to put up a self-explanatory note for the perusal of the Chief

Minister, to enable him to answer the probable questions in the assembly. This

note dated 22.7.1998 was specifically marked for the Chief Minister.

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(n) The Principal Secretary UDD had opined on 24.7.1998 that resort to DC

Rule 13.5 will not be legal, and an action be taken under Section 37 of MRTP

Act. Yet, in view of the favourable indication of the Municipal Commissioner in

his letter dated 17.4.1996, a note was prepared on 27.7.1998 to continue to

maintain the decision under DC Rule 13.5.

(o) When Shri Girish Vyas had entered into the picture through his above

referred letter, the Additional Chief Secretary made a note that since the

developer is related to the Chief Minister, the Minister of State may take proper

decision as per the rules. It is only because of this note that the Minister of

State had signed the papers approving the proposal of the department, and

directing that the necessary orders be issued to the PMC. Accordingly, the

Deputy Secretary of UDD issued the consequent letter dated 29.7.1998 to the

Municipal Commissioner, permitting him to accept the land at Mundhwa or

elsewhere, as well as the amount to construct a school building of 500 sq. feet,

and to issue the occupancy certificate for the Sundew Apartments.

(p) Thus it has got to be inferred that not only the then Chief Minister was

fully aware about this matter right from April 1996, until the last direction of UDD

dated 29.7.1998, but was associated with the decision making process and the

directions issued all throughout.

101. The events in this matter disclose that although the officers of UDD

and the PMC initially took the clear stand opposing the proposal on behalf of the

landowner to put up a residential building in place of a Primary School, the

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Minister of State for Urban Development asked the Municipal Commissioner to

personally carry out a survey of the property, on the ground that two schools

had come up in the near vicinity, ignoring the fact that they had so come up as

per the provision in the D.P. Plan itself. Thereafter when it was pointed out that

the permission of the general body of the Municipal Corporation will be required

for the modification, that submission was by-passed. The provision of DC Rule

13.5 requiring alternate land to be provided for the same purpose within 200

meters was also given a go-bye, and this rule was utilized to accept the proposal

to shift the school to a very far off place. The mandatory provision for

modification under Section 37 of the MRTP Act was totally ignored. Ultimately

only an amount for constructing a school building elsewhere and the land

therefor was offered to the Municipal Corporation, for getting a reserved plot of

land in a prime area of the city released from a public amenity. Last but not the

least, the Municipal Corporation was instructed to withdraw the First Appeal

which it had filed to challenge the decision of the District Court in favour of the

landowner in the matter of acquisition.

102. It is material to note that after the Municipal Commissioner sent his

report dated 17.4.1996, the Private Secretary to the then Chief Minister Shri

Manohar Joshi had called for the file for his perusal. After all necessary

directions were decided, the Chief Minister placed on record his approval on

21.8.1996 with an apparently innocent remark `All actions be taken in

accordance with law’, though he did not forget to record “No objection”. Thus,

the decision of the Government dated 3.9.1996 to shift the reservation of a

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primary school from F.P. 110 under D.C. Rule 13.5 was under his order dated

21.8.1996. Subsequently, when his son-in-law Shri Girish Vyas wrote the letter

dated 15.7.1998 that money be received for constructing a school somewhere

else, it became obvious on the record that the son-in-law of the then Chief

Minister was behind the project. At that stage also the Chief Minister had to be

pointed out by the Addl. Chief Secretary that the developer is related to him, and

therefore, the necessary decision may not be taken by him, but by the Minister of

State. Therefore, the file went to the Minister of State for UDD on whose

direction the last necessary letter has been sent to PMC by the Deputy Secretary

UDD on 29.7.1998. However this subsequent decision is in continuation to the

initial decision of the Chief Minister dated 21.8.1996, and therefore the

responsibility for the clearance of this disputed construction squarely lies on his

shoulders.

A brief summary

103. This is not a case where the landowner or his developer have

approached the appropriate authority on the basis of their allegedly subsisting

rights under the erstwhile T.P. scheme contending that setting up of a primary

school on that plot contrary thereto would be affecting their right to develop the

property and is therefore illegal. It is also not a case where they have

approached the appropriate authority pointing out that there are sufficient

number of schools in the near vicinity with supporting information and,

therefore, sought deletion of reservation on the concerned plot. This is a case

where the landowner never raised either of the two pleas to begin with. He was

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conscious of the fact that the land was reserved for a public garden in the 1966

D.P. Plan and, therefore, gave a purchase notice in May, 1979 which was

confirmed by the State Government in December, 1979. When the D.P. Plan

was revised during 1982-1987, he never raised any of the above two

submissions. He did not even challenge the subsequent reservation for a

primary school finalized in 1987. Only in 1995 when Shri Manohar Joshi became

the Chief Minister, he appointed his son-in-law as a developer and another power

of attorney Shri Karandikar to approach the Ministers directly. He pointed out

that two schools had come up on the adjoining plots (which was in fact as per

the D.P. Plan itself), and the Minister used this information to get a report from

the Municipal Commissioner who suppressed the fact that applications for this

very plot from two educational institutions were pending with PMC. Then also

the order of deletion was not passed either under Section 37 (leave aside Section

22A), or Section 50 of the Act which was invoked for the first time in this Court

(and which otherwise also could not be applied). The order of deletion was

passed under D.C. Rule 13.5 which had no application.

104. The effect of what has been done is this: that a landowner accepts

compensation for his land when acquisition proceedings are initiated at his

instance. The landowner does not challenge either the acquisition proceedings

or the amount of compensation, but in fact collects the amount. When the

tenants challenge the acquisition, the land owner joins the same subsequently.

When the award is set aside by the civil court, and the Municipal Corporation

files the appeal, the landowner approaches a close relative of the Chief Minister,

96

who happens to be a property developer. The development permission is

granted by-passing the objections of the concerned department of the

Government and the Municipal Corporation, and flouting all relevant provisions of

law. The Municipal Corporation is asked to withdraw the appeal against the

judgment holding that acquisition has lapsed. When the actions are challenged in

a public interest litigation, the landowner contends that he had a subsisting right

under the erstwhile T.P. Scheme, in spite of a subsequent reservation for a

public amenity in the D.P. Plan holding the field, and that the construction is

permissible though its legality cannot be traced to any provision of law.

105. Present case is not one where permission was sought for the

construction under erstwhile T.P. scheme, or under Section 50 of the MRTP Act.

This is a case where the personal relationship of the developer with the Chief

Minister was apparently used to obtain permission for construction without

following any due process of law. This is a case of rules and procedures being

circumvented to benefit a close relative of the Chief Minister. It is a clear case of

mala fide exercise of the powers and, therefore, the High Court was perfectly

justified in canceling the development permission which was granted by the

State Government. The development permission could not be defended either

under Rule 6.6.2.2 or under Section 50. The MRTP Act requires a valid

development permission under chapter IV of the act, and in the instant case

there is none. Consequently, the construction put up on the basis of such

permission had to be held to be illegal. In the circumstances, we uphold the

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judgment of the Division Bench as fully justified in law and in the facts of the

case.

Impugned Order passed by the Division Bench

106. (i) As seen above, the Division Bench in the impugned judgment came

to the conclusion that the disputed construction by the developer was totally

illegal, and also concluded that there was nothing wrong with the acquisition of

F.P. No.110. Having held so, it passed the impugned order which can be split

into two parts. The first part of the order is arising out of the determination

concerning the legality of the construction, and it can be seen in sub-paragraphs

(a) to (d) of para 227 of the judgment. The order pertaining to costs is

connected with this part and it is in sub-paragraph (f). The second part of the

order is regarding appropriate criminal investigation which is in sub-paragraph

(e).

(ii) In the first part of its order the Division Bench directed:-

(a) the cancellation of the commencement certificate dated 20.8.1996,

3.5.1997 and 3.7.1998, and occupation certificate dated

20.12.1997,

(b) the PMC and its Commissioner to call upon the landowner and the

developer to restore F.P. No.110 to the position prior to the date of

the earliest of the commencement certificates, failing which these

authorities will take action to demolish the disputed construction,

and collect the cost of such action from the landowner and the

developer,

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(c) the PMC to move an application for restoration of First Appeal

(stamp no.18615 of 1994),

and

(d) rejected the prayer to revive first appeal without the demolition of

the structure.

(f) the Division Bench directed payment of cost of Rs. 10,000/- each

by the State of Maharashtra, the PMC, the then Chief Minister, the

then Minister of State, the developer and the Municipal

Commissioner to the petitioners.

107. In view of the gross illegality in the order of the State Government

and PMC in granting the development permission, the direction (a) for

cancellation of Commencement Certificates and Occupation Certificate had to be

issued and the same can not be faulted. As far as the direction (c) is concerned,

it was noted by the High Court that the PMC had been forced by the State

Government to apply for withdrawal of its First Appeal so that the judgment of

the Civil Court remains undisturbed. Since the High Court came to the

conclusion that there were nothing illegal about the acquisition, the First Appeal

had to be restored. The direction is therefore fully justified. We may note that

PMC has already filed an application for restoration of the First Appeal.

Direction to demolish the disputed building, and rejection of the

objection based on alleged delay and laches

108. The direction (b) in the impugned order was issued basically on

two grounds. Firstly, the development permission had no legal validity

99

whatsoever, and secondly it was clearly a case of showing favouritism by going

out of the way and circumventing the law. Besides, since the challenge to

acquisition was being rejected, it would not have been proper to postpone the

demolition of the disputed construction on the ground of pendency of the First

Appeal, since the construction was absolutely illegal. Hence, the High Court

issued direction (d) as above.

109. The demolition was objected to by the appellants amongst others

on the ground that there was delay and laches in moving the petitions to the

High Court. It was submitted that if the petitioners were vigilant, they could

have seen the building coming up from November 1996 onwards, but the

petitions have been filed only in August 1998. According to them by the time the

petitions were filed, the tenants’ wing was complete, and even the other wing of

Sundew Apartments was nearing completion The Division Bench has rejected this

submission in paragraph 220 of its judgment by observing that merely because a

construction is coming up, a citizen cannot assume that it is illegal or that the

developer had obtained the construction permission in a manner contrary to law.

Besides, when the petitioner in Writ Petition No. 4434 of 1998 (who is a

Corporator) sought the information about the construction, he was informed by

PMC that the same could not be made available under the relevant rules, though

no such rules were shown to the Division Bench. The High Court has on the

other hand noted that as a matter of fact even the construction of the building

meant for the tenants was actually said to have commenced in March 1997 only.

Hence, in the facts of the present case it could not be said that the writ petitions

10

suffered on account of delay or laches, and therefore the High Court was right in

rejecting that contention.

110. With respect to the direction for demolition, we may note that

similar direction was given way back in the case of Pratibha Cooperative

Housing Society Vs. State of Maharashtra reported in 1991 (3) SCC 341.

The appellant society situated in a prime area in Mumbai had added eight upper

floors in excess of the F.S.I. permissible, and the Municipal Corporation directed

removal of those floors. The petitioner society challenged the order of the

Municipal Corporation. A Division Bench of the Bombay High Court dismissed the

Writ Petition, but permitted the society to give proposals to reduce the area of

construction upto the permissible limit. During the pendency of the appeal from

the judgment of the High Court, the proposal of the society was examined by the

Municipal Corporation and was found unacceptable. While dismissing the appeal,

this Court noted in the aforesaid judgment that `the tendency of raising unlawful

construction by the builders in violation of the rules and regulations of the

Corporation was rampant’ in the city of Mumbai. Thereafter it observed in para 6

of the judgment:-

“We are also of the view that the tendency of raising
unlawful construction and unauthorised encroachments is
increasing in the entire country and such activities are required to
be dealt with by firm hands.

Having noted so it upheld the demolition of the upper eight floors

and further observed in the last para of the judgment `

“Before parting with the case we would like to observe
that this case should be a pointer to all the builders that making

10

of unauthorised constructions never pays and is against the
interest of the society.”

111. The observations of the Court however, have had no effect. In M.I

Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors. reported in 1999 (6)

SCC 464, the issue was with respect to the retention of a public amenity viz. a

park in a congested area of city of Lucknow. The park was of historical

importance and also an environmental necessity. The Lucknow Mahapalika had

permitted the appellant builder to put up a shopping complex and a parking

facility thereon. The appellant was permitted to do so without calling any bids

and for hardly any monetary gain to the Municipal Corporation. This was also a

case where the construction was on the basis of an agreement with the builder

which agreement amounted to a fraud on the powers of the Mahapalika, and a

clear case of favouritism, as in the present case. This Court dismissed the appeal

and directed the demolition of the disputed construction and observed as follows

in para 73 of its judgment:-

“73. ……. This Court in numerous decisions has held
that no consideration should be shown to the builder or
any other person where construction is unauthorised.
This dicta is now almost bordering the rule of law. Stress
was laid by the appellant and the prospective allottees of the
shops to exercise judicial discretion in moulding the relief. Such
a discretion cannot be exercised which encourages illegality or
perpetuates an illegality. Unauthorised construction, if it is
illegal and cannot be compounded, has to be demolished.
There is no way out. Judicial discretion cannot be guided by
expediency. Courts are not free from statutory fetters. Justice is
to be rendered in accordance with law……”

(emphasis supplied)

10

112. In the present case, one would have thought of retaining the

building and utilising it for a school. The PMC had shown its willingness to

consider such a proposal. But the developer wanted to retain half of the flats of

this ten storey building which would have been contrary to the provision in the

Development Plan, and hence the proposal fell through. That apart, such a

compounding would have been contrary to the above dicta in M.I Builders case

(supra). There is no redeeming feature whatsoever in the present case. It is

clearly a case of misuse of one’s position for the benefit of a relative leading to

an action which is nothing short of fraud on one’s power and also on the statute.

There is no reason for us to interfere in the order passed by the High Court

directing the demolition of the disputed buildings.

113. The building constructed for the tenants is meant for

accommodating them, and it has been stated on behalf of the developer that he

is not interested in dis-housing them. The learned senior counsel for PMC Shri

R.P. Bhat has also stated on instructions, that PMC has no objection to the

retention of the building constructed for the erstwhile occupants of the plot,

however these occupants will now have to continue in that building as tenants of

PMC. As far as these occupants are concerned, their status at the highest was

that of tenants of the landowner. They claim to have been residing on this plot

for over fifty years, and appear to be belonging to economically weaker section

of the society. Their only request during the acquisition proceedings was that

they should be accommodated on this very plot of land. It is another matter that

in the High Court and in this Court they supported the landowner and the

10

developer, in view of the promise given to them that in the event the landowner

and the developer succeed, the tenants will get ownership rights. Now that the

plea of the landowner and the developer is rejected, the best that can happen to

these occupants is to get the tenancy rights on this very plot of land. That apart,

in view of their long stay on this plot, they had to be rehabilitated. The offer of

PMC to accommodate them on the very plot of land is more than fair, and

deserves acceptance. Since, the tenants were already in possession of a part of

the plot for residential purpose, they are being continued to remain on that plot

for that very purpose. In that event, the tenants may not be entitled to receive

any monetary compensation since this offer is as per their original demand and it

very much compensates them. However, since the amount of compensation

awarded to them was too meagre, if they have collected it, they need not return

the same to PMC. This being the position, in our view, the main operative order

passed by the High Court needs to be modified appropriately. In the

circumstances, we modify and restrict the operative order of demolition only to

the extent it directs the removal / demolition of the building meant for the

persons other than these tenants (i.e. the ten storey building named as Sundew

Apartments).

114. We may as well mention at this stage that as far as this building

viz. Sundew Apartments is concerned, no one, except a bank had come forward

to claim any third party rights, or prejudice on account of the order of demolition

passed by the High Court in spite of the well publicised litigation of this matter.

The concerned bank had advanced a loan to the developer against the security

10

of two flats in that building, and it intervened only at the last stage of passing of

the order. The Division Bench has rightly rejected the claim of the bank in

paragraphs 224 to 226 of its judgment by observing that the court could not

accept the contention of the bank that it was not aware of the illegality on the

part of the developer. The court did not accept the bank’s plea of innocently

advancing the money, since the mortgage was executed on 13.8.1998, whereas

the allegations concerning the illegality of this transaction had appeared in the

newspapers right from March 1998. The bank should have considered the

matter in depth before advancing the loan. In any case the demolition will only

extinguish its security though its claim against the developer may remain.

Adverse remarks, and the direction for criminal investigation

115. The second part of the operative order in the impugned judgment

was based on the adverse inferences drawn by the Division Bench against the

then Chief Minister, the Minister of State and the Municipal Commissioner. The

petitioners had infact sought a prosecution against all of them. However, after

considering the facts and circumstances of the case the court was not inclined to

grant that relief, without appropriate prior investigation. Therefore, with respect

to this prayer the Court passed an order which is contained in paragraph 227 (e)

in two parts as follows:

(i) to direct the State of Maharashtra to make appropriate investigation

against the then Chief Minister, the Minister of State and the Municipal

Commissioner by an impartial agency, and

10

(ii) if satisfied that any criminal offences have been committed by the

aforesaid respondents in the discharge of their duties, to take such action as is

warranted in law.

These three appellants have therefore made two fold prayers viz. expunging the

adverse observations, and setting aside the direction for appropriate

investigation to be followed by such action as is warranted in law.

Adverse remarks by the Division Bench against the Municipal

Commissioner, Minister of State and the then Chief Minister:-

Adverse remarks against the Municipal Commissioner

116. Apart from other allegations, it has been specifically alleged in Writ

Petition 4434 of 1998 that the then Municipal Commissioner “wilted under the

pressure of the Chief Minister…..”, “acted in flagrant disregard to the provisions

of the law”, and “with a view to favour his son-in-law Shri Girish Vyas acted

illegally and mala fide”. As we have seen from the notings on the file, initially he

did take a stand which could be said to be as per the record, and in consonance

with law. In his affidavit before the High Court, he took the stand that he

acted under the directions of the Minister, and hence, he should not be blamed

for the ultimate decision. Shri Narshima, learned senior counsel appearing for

him drew our attention to the Maharashtra Government Rules of Business

framed under Article 166 of the Constitution in this behalf. He also tried to

defend the Commissioner’s action by invoking Section 154 of the MRTP Act which

lays down amongst others that the Planning Authority has to carry out the

directions and instructions of the State Government for the efficient

10

administration of the act. The Division Bench declined to accept this explanation.

We have already dealt with this submission and recorded our reasons as to why

we also cannot accept this reliance on Section 154.

117. (i) It was submitted on behalf of the Commissioner that he

brought the correct legal position to the notice of the Minister of State to begin

with, but ultimately had to give up due to the instructions from the Minister of

State, meaning thereby that he cannot be blamed since he was acting under the

directions of his superiors. Reliance was placed in this behalf on the proposition

in paragraph 16 of Tarlochan Das Vs. State of Punjab & Ors reported in

2001 (6) SCC 260 to the following effect:-

“No government servant shall in the performance of his
official duties, or in the exercise of power conferred on him, act
otherwise than in his best judgment except when he is acting
under the direction of his official superior.”

(ii) This defence cannot help him much if we see his actions atleast on two

occasions. Firstly, when he made his report dated 17.4.1996 to the Minister of

State, he overlooked the fact that the reservation on this plot was for a primary

school, and not merely for a municipal primary school. As has been noted by the

Division Bench, two private schools had already come up on the adjoining plots

as per the D.P. provision itself. Besides, two renowned educational institutions

had applied way back for this plot of land for running of schools thereon. The

Commissioner did not place this very vital information before the Minister of

State in his report. On the other hand he stated that Prabhat Road being a

higher middle class area, a municipal school may not get adequate students. The

Division Bench has therefore, observed in paragraph 143 of its judgment, that

10

his report was “far from truth”. Secondly, he bypassed the general body of the

Municipal Corporation in the matter of deleting the reservation on F.P. No. 110

inspite of being aware of the correct legal position, and his attention having been

specifically drawn thereto by the senior law officer of PMC.

118. Both these acts on the part of the Municipal Commissioner clearly

amounted to failure on his part to discharge his duty correctly for which he

cannot blame anybody else. This is the least that is got to be stated about his

conduct by this Court. The Division Bench has commented that he acted “as a

loyal soldier perhaps more loyal to the king than king himself”, which was “with a

view to please his bosses”. It is true that in the first meeting called by the

Minister of State for UDD, it was pointed out on behalf of PMC that the land had

been acquired. The Commissioner had also pointed out that if the reservation

was to be reduced or to be deleted, the permission of the Municipal Corporation

will have to be obtained. His report of 17.4.1996, cannot however be said to be

fully satisfactory and he failed in his duty when he permitted the by-passing of

the Municipal Corporation in the matter of deletion of reservation on F.P. No.110,

which he claims to have done in view of the direction from the Chief Minister

under the D.C. Rules. We can say that a high ranking IAS Officer was expected

to show his mettle, and he failed to come up to the expectations, but noticing

that he had no personal interest in the matter, and he was acting under the

directions of his superior, the Division Bench could have avoided making the

particular remarks against him.

The conduct of the Minister of State

10

119. In paragraph 3 of Writ Petition 4434 of 1998, there is a specific

allegation against the then Minister of State as well as the then Chief Minister of

“the blatant misuse of executive powers”, “with a sole objective of ensuring a

substantial monetary benefit for M/s Vyas Constructions. The defence of the

Minister of State was that he tried to find out a workable solution, and acted on

the advice of the officers of his department. As we have seen from the notings

and as observed by the Division Bench that initially the Minister of State was also

of the view that Section 37 of the MRTP Act should be followed. In this

connection, it is relevant to note that after receiving the letter dated 17.4.1996

from the Municipal Commissioner, the UDD department prepared its note in

which it specifically recommended that only half the area of the concerned plot

be released to the landowner, and that he should accommodate the tenants in

his development of the property on that portion of land, and an action under

Section 37 be taken for that purpose. Thus, the departmental note was in fact

as per the initial stand taken by the Minister of State, yet strangely enough, he

declined to approve the note. He contended in his affidavit before the High

Court that he was persuaded to accept the suggestion to act under the D.C. Rule

13.5 under which a similar action had been taken in Kothrud, Pune. No

particulars of that Kothrud precedent were however, placed before the Court.

120. The Minister of State also tried to contend that until the last he had

no knowledge of Shri Murudkar’s connection with the son-in-law of Chief

Minister. In view of the facts which have emerged on the record, it was just not

possible to accept this contention. The Division Bench has given its reasons for

10

the same and has commented on his conduct as follows at the end of paragraph

140:-

“…….It is difficult to account for the anxiety of the Minister
of State, UDD, to find out some solution to either reduce the area
of reservation or shift it to a new place. Only tenable explanation
is that it was a design to ensure that the representation made by
Murudkar on November 20, 1995 was allowed. It is not being
suggested by any one that respondent No.6 was personally
interested in the proposal or that he had any particular interest in
seeing that this proposal was sanctioned. We, therefore, have to
fall back on the inference that respondent No.6 was under
pressure from respondent No.5.”

121. In this behalf it is relevant to note the conduct of the Minister of

State from stage to stage.

(i) Firstly, he entertained the application of Shri Karandikar directly at his

own level, and thereafter immediately called a meeting of high ranking officers to

take a decision thereon. Would such other applications receive such a direct and

expeditious attention?

(ii) Secondly, he directed the Municipal Commissioner, a very high ranking

officer, to carry out a personal inspection and to make a report. Would he issue

such directions in the case of other similar applications?

(iii) Thirdly, after the Commissioner’s report, the UDD department supported

the initial view of the Minister of State that only a part of F.P.No. 110 be

released, and that too under Section 37. Why did he not approve that note?

(iv) He acted as if he was waiting for the Commissioner to state that two

schools had come up in the adjoining plots, so that he can release F.P. No. 110

from the reservation for a Primary school. Did he not realise that those schools

had come up as per the Development plan itself?

11

(v) He relied upon an alleged precedent of release of the land at Kothrud

under D.C. Rule 13.5 without having the particulars thereof on record.

(vi) He tried to put the blame on the Municipal Commissioner and the

Municipal Officers for the decision arrived at. It is true that the Commissioner

failed in his duties to place full facts on record. At the same time the fact that

the Minister of State ignored the initial notes of his own department and of PMC,

which were in accordance with law, and went on acting and instructing as per

the suggestions of Shri Karandikar, which led to the convenient reports cannot

be lost sight of. He acted clearly against the provisions of law though he was

fully informed about the same. Would he have acted in such a manner on any

other similar application?

(vii) Would he not be aware that the file was called by the Chief Minister after

receiving the report from the Municipal Commissioner, and for what purpose?

The natural inference which flows from all this conduct is that right from the

beginning, the Minister of State was aware about Shri Murudkar’s connection

with the son-in-law of Chief Minister, and therefore he acted for the benefit of

the developer, obviously at the instance of the then Chief Minister as inferred by

the Division Bench. We have no reason to disagree.

Observations against the Chief Minister

122. (i) The two Writ Petitions contain serious allegations against the then

Chief Minister at various places. Thus in paragraph 2 of the Writ Petition 4433 of

1998, it is alleged that the then Chief Minister misused his executive powers and

11

authority for the purpose of securing benefits for his near relatives, and in

paragraph 3 it is specifically stated that this was for ensuring a substantial

monetary benefit for M/s Vyas Constructions. A specific averment in paragraph 2

in this behalf is as follows:-

“It is the claim of the petitioner that on account of this
close relationship, the executive powers vested in the State of
Maharashtra have either been misused and/or actions which
cannot be taken in exercise of the executive powers under the
Act are presumably take in purported exercise of such executive
powers with a full knowledge that the actions are illegal and ultra
vires the provisions of the Act.”

(ii) As we have noted earlier, on 24.4.1996 the initial report made by the

Municipal Commissioner dated 17.4.1996 was called for the perusal of the then

Chief Minister. The basic order dated 21.8.1996 granting no objection, thereby

approval to the release of the reservation on F.P. No. 110 was that of the then

Chief Minister. The disputed permission dated 3.9.1996 was issued in pursuance

thereto. There is a note dated 22.7.1998 on record which was meant for the

perusal of the then Chief Minister to enable him to answer the probable

questions concerning this matter in the assembly. The last order proposed at the

Government level was also brought to his notice, and he was going to sign it, but

for the advice of the Additional Chief Secretary that since his son-in-law had

written a letter by that time to the Commissioner, the papers be sent for the

signature of the Minister of State. Thus it is quite clear that he was aware about

the developments in the matter, and the orders therein were issued with his

approval and knowledge. He cannot therefore, escape the responsibility for all

the illegal actions in this matter.

11

(iii) The learned senior counsel for the then Chief Minister Shri Shyam Diwan

objected to the language used in paragraphs 111 and 131 of the judgment which

accused him of “pettifogging or obfuscation of facts”. It is stated in the

judgment that the then Chief Minister “furtively” sought a copy of the report

dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared by his

private secretary to the Minister of State for Urban Development calling for the

file for the then Chief Minister’s perusal. It was submitted that there was no need

for the then Chief Minister to act secretively. In our view, there is no use in

taking umbrage behind the language used by the Court. The question is

whether the inference that the Chief Minister had called for the file for his

perusal can be disputed. A private secretary will not make such a note unless the

file is required by the Chief Minister. In our view the inference was fully justified.

It was also sought to be contended that the petitions were politically motivated

and one of the petitioners did not have clean antecedents. We are concerned in

the present case with respect to serious allegations against the then Chief

Minister misusing his office for the benefit of his son-in-law and in that process

destroying a public amenity in the nature of a primary school. Such submissions

cannot take away the seriousness of the charge, and the Chief Minister must

squarely explain and justify his actions.

123. (i) With respect to the Chief Minister calling the file for his perusal, the

Division Bench has posed a question as to whether it was an idle curiosity. “Why

were the Chief Minister and the Minister of State interested in one particular

case? What momentous public policy decision was sought to be taken in this

11

matter?” Shri Murudkar was not someone for whom the administration could

have moved so fast. It was very clear that the Chief Minister was very much

interested in knowing the progress of the case all throughout. The obvious

inference was that the then Chief Minister and the Minister of State took keen

interest in the matter only because Shri Murudkar had appointed the son-in-law

of the Chief Minister as his developer.

(ii) The Division Bench has dealt with the affidavit of the then Chief Minister,

some of the relevant events in this behalf and then held that the conduct of the

then Chief Minister definitely leads to the conclusion that he was very much

interested in knowing the progress of the case pertaining to F.P. No.110, and he

wanted to apprise himself of report dated 17.4.1996 made by the Commissioner

of PMC. Therefore, the Division Bench held at the end of para 131 as follows:-

“We are afraid, unless the Court is naove and its
credulousness is stretched to the extreme, the inference has to
be that, not only was there an attempt on the part of respondent
No.5 to `concern’ himself with the file even prior to August 1996,
but also that respondent No.5 had taken an active interest in the
case.”

124. (i) Then we come to the merits of the disputed permission dated

3.9.1996 which was in pursuance to the order of the Chief Minister dated

21.8.1996 viz. “All actions be taken in accordance with law. No objection”. It

was sought to be contended on his behalf that he had clearly stated that all

actions be taken in accordance with law. But we cannot ignore that he had

simultaneously stated in his remarks of approval, “no objection” to the note

containing the proposal which had been put up before him, and which was not in

11

accordance with law. The note clearly stated that the reservation on the land at

Lohegaon be shifted from agricultural zone to residential zone by following the

procedure under Section 37 of the MRTP Act. But as far as shifting of

reservation from F.P. No. 110 was concerned, a different yardstick, namely that

of D.C. Rule 13.5 was applied for which there was no explanation whatsoever.

Thus he gave no objection to an illegal proposal as proposed in the note, and

directed that all actions be taken in accordance with law which will only mean

that the proposal be somehow fitted in four corners of law.

(ii) The letter dated 17.4.1996 from the Municipal Commissioner had already

been forwarded for his perusal. This report had clearly stated to begin with that

the departmental permission had been rejected because the property was under

reservation. The report of the Municipal Commissioner also stated that in case

the change was proposed in the use of the property, permission had to be taken

from the Pune Municipal Corporation. Could not the Chief Minister understand

that D.C. Rule 13.5 could not be applied to F.P. No.110 in the manner in which it

was suggested? Could he not understand that the permission of Municipal

Corporation was required as per the law? In the teeth of these legal provisions

he gave no objection to the proposal to shift the reservation of F.P. No. 110

under D.C. Rule 13.5, and to shift the reservation of the plot at Lohegaon under

D.C. Rule 37. In between there is a noting of 22.7.1998 which recorded that the

Chief Minister had to be briefed about this matter appropriately for him to

answer the questions in the legislative assembly. The note has also recorded

that there was a criticism about this matter in the local newspaper.

11

Subsequently, thereafter when the land at Mundhwa or elsewhere was sought to

be exchanged in place of Lohegaon, the letter of Shri Girish Vyas was already on

the file of the PMC and the Government. Still he was going to sign note of

approval but for the advice of the Additional Chief Secretary. This shows the

keen interest of the then Chief Minister in the matter and it can certainly be

inferred that he was so acting for the benefit of his son-in-law.

125. According to Shri Naphade, the learned counsel appearing for the

developer, the inference of mala fides is misconceived, as it is contrary to the

material on record. He submitted that the Municipal Commissioner’s report

dated 17.4.1996 was not found to be untrue or false by any authority. He

emphasized that as per the report (i) There are about 36 structures on the land

which are occupied by tenants; (ii) Half the area of the plot is encumbered; (iii)

There are two educational institutions in the vicinity of the plot and 11

educational institutions in the area; (iv) The acquisition of the plot has been

declared illegal by the Court; (v) The locality in question is inhabited by higher

middle class people and there may not be an appropriate response to a Primary

School; (vi) Considering the funds available the Pune Municipal Corporation is

inclined to develop school on some other plot reserved for school. He defended

the decision of the then State Government and the actions taken in pursuance

thereof by submitting that (i) There is no detriment to Public Interest, as no

Municipal Primary School was required in the locality. (ii) The Appellant made

alternative plot available at his own cost in the locality where a Municipal Primary

School was required. (iii) The developer paid a sum of Rs. 25 lakhs to the PMC

11

for construction of Municipal Primary School wherever it wanted to put it up. (iv)

Tenants occupying dilapidated structures were rehabilitated on the very plot and

were to get the ownership right free of cost.

126. These arguments are based on an erroneous premise that the plot

was reserved for a Municipal Primary school. It was reserved for a Primary

school and not merely a Municipal Primary school. It is on this false premise that

the Commissioner had opined that this being a higher middle class area, a

Municipal Primary school may not get an appropriate response. The two

adjoining plots were also reserved for Primary schools as per the D.P. plan, and

thereon two private schools had already come up. That cannot be a ground to

say that this plot be released from reservation. The Municipal Commissioner had

failed to place on record a very material information that one renowned

educational institution had sought this very plot for educational activities way

back in 1986. The Municipal Commissioner had not specified as to what he

meant by the particular area when he stated that eleven educational institutions

had come up therein. The plot had been reserved for a Primary school after an

elaborate planning process wherein the requirements of the particular area are

appropriately considered. This is not the first case where there would be three

adjoining plots reserved for Primary schools. There are many such schools and

educational complexes which always require adjoining plots and are developed

accordingly. The submission that the acquisition had been declared illegal by the

Court was also a very convenient submission ignoring that the Municipal Appeal

therefrom was pending in the High Court. There was no reason for the

11

Corporation to be deterred by the encumbrances on the plot, since the

compensation therefor had already been arrived at as per the law, and it did not

cast much burden on the Corporation. The report of the Municipal Commissioner

was clearly made “to please the bosses” as observed by the Division Bench, and

could not be accepted as the basis for a valid legal action. The acceptance of

the offer of the developer would mean that whenever anybody wants to delete a

reservation of a public amenity in a prime area, he can throw the money to the

Municipal Corporation and say that let the amenity come up elsewhere, but the

reservation be deleted. Such an approach will mean destruction of the entire

planning process and deserves to be rejected. None of these arguments can

whitewash the material on the record which clearly leads to the inference, that

the impugned actions were motivated to benefit the son-in-law of then Chief

Minister.

127. (i) The learned counsel for the then Chief Minister objected to the

inference drawn by the Division Bench that the then Chief Minister had

pressurized the officers into taking an illegal action. It was submitted that the

notings on the file indicated that there were deliberations on issues involved in

the matter at the government level on a number of occasions. The course of

action suggested in the PMC note dated 26.7.1996 was approved at several

levels of authority before the same coming to the then Chief Minister. The

Deputy Secretary in the UDD Shri Vidyadhar Despande has also stated in his

affidavit that there was no pressure from the office of the Chief Minister or for

himself. That apart there were cogent factors explaining why there was no need

11

for yet another primary school in the locality and generally the thinking was that

public interest would gain from the proposed course of action.

(ii) As far as this latter submission about there being no need of one more

primary school, one may immediately note the scant respect that the then Chief

Minister had for the cause of education and the method of planning. One fails to

see as to what public interest was going to be achieved by preventing a primary

school from coming up on a designated plot. There is no use stating that instead

a primary school will come up in another area. It will of course come up in that

area if it is so required. But there is no need to tinker with a school in another

area, provided by a proper planning process.

(iii) We have already noted the manner in which the matter had been

handled. The application of the developer was entertained directly at the level of

the Minister of State. Immediately a meeting of high ranking officers was called.

Inspite of a clear stand taken by the offices of UDD as well as by PMC, the

Minister of State asked the Commissioner, a high ranking officer to make a

personal site inspection and then a report, only because the developer submitted

that two schools had come up on the adjoining plots. Was it not clear to the

Minister of State that those two schools had come up as per the provisions of the

D.P. plan? The Municipal Commissioner in his report, and thereafter the officers

of the UDD, initially submitted that if deletion of reservation was to be resorted,

the action will have to be initiated under Section 37 of the Act. It is only

because of the insistence of the developer that the resort to D.C. Rule 13.5 was

adopted. During the course of all these developments the file had been called by

11

the Secretary to the Chief Minister. Were these not clear signals to the officers as

to what was the interest of the then Chief Minister? There will never be any

direct evidence of the officers being pressurized, nor will they say that they were

so pressurized. Ultimately one has to draw the inference from the course of

events, the manner in which the officers have acted and changed their stand to

suit the developer and the fact that the son-in-law of the then Chief Minister was

the developer of the project. As we have noted earlier the affidavit of the

Commissioner clearly indicated that he tried to place the correct legal position

initially but ultimately had to give in from the pressure from the superiors.

Unless one is naove one will have to agree with the conclusion which the Division

Bench had drawn in para 136 of its judgment to the following effect:-

“We are left with only one conclusion which we have to
draw from the facts on record and, to quote the words of the
petitioners, “the conduct of respondent No.5 itself indicates that
he had `pressurized’ the officials into taking an illegal action” and
this, in our view, is certainly misuse of executive powers.”

128. The learned senior counsel who had appeared for the then Chief

Minister in the High Court had relied upon amongst others on the judgment of

this Court in E.P. Royappa vs. State of Tamil Nadu [AIR 1974 SC 555] .

Krishna Iyer J. had observed in paragraph 92 of his judgment in that matter that

“we must not also overlook that the burden of establishing mala fides is very

heavy on the person who alleges it. The allegations of mala fides are often more

easily made than proved, and the very seriousness of such allegations demands

proof of a high order of credibility.” Shri Royappa, while challenging his transfer

had made allegations of mala fides against the then Chief Minister of Tamil

Nadu, and this Court had refused to accept those allegations. The Division Bench

12

noted in the presently impunged judgment that Shri Royappa was a Chief

Secretary, and hardly any Chief Secretary of a State Government was known

who would be in any way hamstrung, or stopped from getting information or

documents on the basis of which he makes out the case of mala fides against

the officer holding a public office. The Division Bench rightly observed at the

end of para 129 as follows:-

“We do agree with Mr. Salve that a finding of mala fides
against public authority, that too of the rank of Chief Minister of
the State, should not be lightly drawn. It is quite a serious
matter. But, if the Court is required to draw such an inference
after examining the record, we feel that the Court cannot flinch
from its duty.”

129. In one earlier case i.e Shivajirao Nilangekar Patil v. Dr.

Mahesh Madhav Gosavi [1987 (1) SCC 227], a single Judge of the Bombay

High Court had held that in the facts of that case it could be reasonably held that

the marksheet of the M.D. Examination was tampered to benefit the daughter of

Shri Shivajirao, the then Chief Minister of Maharashtra. The Division Bench of

the Bombay High Court took the view that the circumstances relied on clearly

formed a reasonable and cogent basis for the adverse comments on the conduct

of Shri Shivaji Rao. The Division Bench had noted that the single Judge had

followed the tests led down by this Court earlier in State of U.P. Vs.

Mohammad Naim [AIR 1964 SC 703] which were as follows:-

“10. ……(a) whether the party whose conduct is in
question is before the court or has an opportunity of explaining
or defending himself; (b) whether there is evidence on record
bearing on that conduct justifying the remarks; and (c) whether it
is necessary for the decision of the case, an in integral part
thereof, to animadvert on that conduct. It has also been

12

recognized that judicial pronouncements must be judicial in
nature, and should not normally depart from sobriety, moderation
and reserve.”

Having approved the approach of the High Court this Court held in the facts of

Shri Shivajirao’s Case as follows:-

“50. There is no question in this case of giving any clear
chit to the appellant in the first appeal before us. It leaves a
great deal of suspicion that tampering was done to please Shri
Patil or at his behest. It is true that there is no direct evidence.
It is also true that there is no evidence to link him up with
tampering. Tampering is established. The relationship is
established. The reluctance to face a public enquiry is also
apparent. Apparently Shri Patil, though holding a public office
does not believe that “Ceaser’s wife must be above suspicion…..”

130. The facts of the present case are stronger than those in the case of

Shri Shivajirao Nilangekar (supra). Here also a relationship is established.

The basic order dated 21.8.1996 in this matter granting no objection to an illegal

action is signed by the then Chief Minister himself. That was after personally

calling for the file containing the report dated 17.4.1996 sent by the Municipal

Commissioner much earlier. The entire narration shows that the then Chief

Minister had clear knowledge about this particular file all throughout, and the

orders were issued only because the developer was his son-in-law, and he

wanted to favour him. Ultimately, one has to draw the inference on the basis of

probabilities. The test is not one of being proved guilty beyond reasonable

doubt, but one of preponderance of probabilities.

Appropriate actions taken in a Public Interest Litigation

12

131. It was contended before the High Court that the rule as to the

construction of pleadings should be strictly applied in the present case and that

the material as contained in the petitions did not justify any further probe. The

High Court rightly rejected that argument. There was a sufficient foundation in

the petition for the further steps to be taken by the High Court. The petitions

before the High Court were in the nature of public interest litigation. The

purpose in such matters is to draw the attention of the High Court to a particular

state of facts, and if the Government action is found to be contrary to law or

affecting the rights of the citizen, the court is required to intervene. There was a

specific plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that

“the fundamental and legal right of the citizens of Pune of submitting objections

and suggestions to any modification in the Final Development Plan u/s 37 of the

act has been infringed”, and that was solely on account of the developer being a

close relation of the then Chief Minister who was also the Minister for Urban

Development which controls the appointments of a Municipal Commissioner to a

Corporation established under the B.P.M.C Act 1949. A prima facie case had

been made up in the petitions which got supported when the High Court in

exercise of its Writ Jurisdiction rightly called for the relevant files from the State

Government and the PMC to explain and defend their decisions.

132. Public Interest Litigation is not in the nature of adversarial

litigation, but it is a challenge and an opportunity to the government and its

officers to make basic human rights meaningful as observed by this Court in

paragraph 9 of Bandhua Mukti Morcha Vs. Union of India [AIR 1984 SC

12

802]. By its very nature the PIL is inquisitorial in character. Access to justice

being a Fundamental Right and citizen’s participatory role in the democratic

process itself being a constitutional value, accessing the Court will not be readily

discouraged. Consequently, when the cause or issue, relates to matters of good

governance in the Constitutional sense, and there are no particular individuals or

class of persons who can be said to be injured persons, groups of persons who

may be drawn from different walks of life, may be granted standing for

canvassing the PIL. A Civil Court acts only when the dispute is of a civil nature,

and the action is adversarial. The Civil Court is bound by its rules of procedure.

As against that the position of a Writ Court when called upon to act in protection

of the rights of the citizens can be stated to be distinct.

133. It was submitted on behalf of the appellants that inference should

not be drawn merely on the basis of the notings in the file, and the remarks

made by the Division Bench ought to be expunged. In this connection we may

profitably refer to the observations of this Court in P.K. Dave Vs. Peoples’

Union of Civil Liberties (Delhi) & Ors. reported in 1996 (4) SCC 262. A

Writ Petition by way of a PIL was filed before the Delhi High Court alleging

commission of gross financial irregularities by the Director of Govt. Hospitals in

Delhi. Notings in the office file produced by the Government showed that

despite suggestions made by the Health Secretary and Chief Secretary to the

Delhi Administration, Lt. Governor of the Administration had refused to take any

action against the Director. The High Court had passed strictures against the Lt.

Governor. The learned senior counsel Shri Venugopal appearing on behalf of the

12

appellant Lt. Governor had submitted that the strictures based on the basis of

the notings should be expunged. Rejecting the submission this Court observed

in paragraph 8 as follows:-

“8. ….. Where the relevant departmental files were
produced before the court by the Government and the court on
scrutiny of the same came to the conclusion that the decision has
not been taken fairly, then the court would be entitled to
comment on the role of such person who took the decision….. In
such circumstances if the contention of Mr. Venugopal is
accepted then no administrative authority and his conduct would
come under the judicial scrutiny of the court. That an
administrative order is subjected to judicial review is by now the
settled position and no longer remains res integra. This being
the position we fail to appreciate the contentions of Mr.
Venugopal that the notings in the file or the orders passed by the
Secretary and Chief Secretary as well as the Governor should not
have formed the basis of the strictures passed against the
appellant.”

134. Reliance was placed on the judgment of this Court in Jasbir Singh

Chhabra Vs. State of Punjab reported in 2010 (4) SCC 192 to submit that

the issues and policy matters which are required to be decided by the

Government are dealt with by several functionaries, some of whom may record

notings on the files, and such notings recorded in the files cannot be made basis

for a finding of mala fides. There can be no dispute with the preposition when

policy matters are involved as in that case where the question was whether the

State Government’s refusal to sanction change of land use from industrial to

residential was vitiated due to mala fides claimed to be arising out of such

notings. In the present case we are concerned with the notings not concerning

with any policy matter, but with respect to the application on behalf of an

individual landowner to delete the reservation of a primary school on his land,

12

where the developer is the son-in-law of the Chief Minister. The notings in the

present case are quite clear and the inference of mala fides therefrom is

inescapable.

135. We have noted the observations and the conclusions arrived at by

the High Court with respect to the conduct of the then Municipal Commissioner,

the Minister of State and the then Chief Minister. The High Court has drawn its

inferences and made the remarks after following the dicta in State of U.P. Vs.

Mohd. Naim (supra). Having seen the totality of facts and guidelines laid down

by this Court in P.K. Dave’s case (supra), we do not see that we can draw any

other inference then the one which was drawn by the Division Bench. We will be

failing in our duty if we do not draw the inference which clearly arises from the

notings on the file, the affidavits filed by the persons concerned and the law with

respect to drawing such inference. In the circumstances, we refuse to expunge

any of these remarks rendered by the Division Bench.

Orders for Criminal Investigation

136. Having drawn the above inferences, and having made the adverse

remarks about the conduct of the then Chief Minister, Minister of State and

Municipal Commissioner the impugned judgment has directed the State of

Maharashtra to initiate appropriate investigation against them through an

impartial agency, and if satisfied that any criminal offence has been committed

to take such action as warranted in law.

137. Now, as far as this direction is concerned, we have to note that as

far as the Municipal Commissioner is concerned, though the Division Bench did

12

not approve his conduct and squarely criticized him for being more loyal to the

king then the king himself, yet in terms it observed in paragraph 144 of the

judgment, that it did not attributive any motive to him for his actions. This para

reads as follows:-

“144. While we may not attribute any motive to
respondent No.10 for his actions, we cannot approve of the
actions taken by him. We have already pointed out that the
action of withdrawing the appeal was wrong. In our view,
respondent No.10 would have served the interests of the PMC
better if he had placed his dilemma before the PMC and sought a
resolution thereof, particularly when he believed that the
Government was issuing him instructions contrary to law, which
he believed to exist. But, perhaps, this might not have been
clear to him at the time when he acted to please his masters.
While holding that the actions taken by the tenth respondent
were contrary to the provisions of the BPMC Act, MRTP Act and
Development Control Rule No.13.5, we find it difficult to accept
the suggestion in the writ petitions that he was a willing party to
the process of abuse of executive powers.”

That apart, Shri Narsimha, learned senior counsel appearing for the Municipal

Commissioner drew our attention to Section 147 of the MRTP Act which provides

that no suit, prosecution or other legal proceedings shall lie against any person

for anything which is in good faith done or entitled to be done under this Act or

any rules or regulations made therein. Reliance was also placed on Section 486

of the B.P.M.C. Act 1949 which is also to the similar effect. The Division Bench

has also clearly stated that it did not accept the suggestion in the writ petitions

that the Commissioner was willingly a party to the process of abuse of executive

powers. This being the position, in our view it would not be correct to direct any

criminal investigation against the then Municipal Commissioner, and in our view

to that extent the order of the Division Bench requires to be corrected.

12

138. As far as the Minister of State is concerned also, the Division Bench

commented adversely on his conduct in paragraph 140 of its judgment. Yet it

also observed in paragraph 142 that there was nothing on record as suggested

that he had any personal motive in the matter. The relevant observation at the

end of paragraph 142 reads as follows:-

“…….All that we can say is that there is nothing on record
to suggest that he had any other personal motive in the matter.
We, therefore, infer that respondent No.6 must have done it to
oblige his senior colleague i.e. the then Chief Minister,
respondent No.5.”

The Division Bench has thus specifically inferred that whatever he has done, was

done to oblige his senior Minister i.e. the then Chief Minister and he had no

personal motive in the matter. In the circumstances, he is entitled to a benefit

of doubt and, therefore, the direction for criminal investigation against him also

can not be sustained.

139. As far as the Chief Minister is concerned, however, it is very clear

that he was fully aware about the application made by Shri Karandikar who was

a camouflage for his son-in-law. He had called for the file after the Municipal

Commissioner sent his report in April, 1996. But for his personal interest, the

Government and the Municipal officers would not have taken the stand and put

up the notes that he wanted to be on record. The shifting of the reservation

from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of

the Municipal Corporation and ignoring the mandate of Section 37 was also not

expected, yet he gave “no objection” to a contrary and totally unjustified order.

The earlier part of his order viz. “all action be taken in accordance with law”

12

therefore becomes meaningless, and is nothing but a camouflage. The conduct

on the part of the then Chief Minister prima-facie amounts to a misfeasance and

Shri Wasudev, learned senior counsel appearing for the original petitioners

submits that such a conduct ought to be sternly dealt with.

140. The learned counsel for the Chief Minister on the other hand

pointed out that there were no prayers for prosecution in the Writ Petitions, and

the direction contained in paragraph 227 (e) was beyond the prayers. The

question therefore, is whether the operative order passed by the High Court in

this behalf is legally tenable. The direction given by the High Court in paragraph

227 (e) is as follows:-

“(e) As far as prayer for directing prosecution against
Respondent Nos. 5, 6 and 10 is concerned, after considering the
facts and circumstances of the case we are not inclined to grant
this relief. …… Nonetheless, we direct the first respondent to
make appropriate investigations through an impartial agency and,
if satisfied that any criminal offences have been committed by the
aforesaid respondents in the discharge of their duties, to take
action as is warranted in law.”

Respondent Nos. 5, 6 and 10 were the then Chief Minister, the then Minister of

State and the then Municipal Commissioner.

141. In this context we have to take note of the judgment of a bench

of three Judges of this Court in this behalf on a review petition in the case of

Common Cause, A Registered Society Vs. Union of India & Ors. reported

in 1999 (6) SCC 667. The Minister concerned in that matter had committed the

misfeasance of allotment of retail outlets of petroleum products out of the

discretionary quota in an arbitrary and mala fide manner. Such allotments had

been set aside by a bench of two Judges by its judgment between the same

12

parties reported in 1996 (6) SCC 530. The Court had thereafter passed an

order that the Minister concerned shall show cause within two weeks why a

direction be not issued to the appropriate police authority to register a case and

initiate prosecution against him for criminal breach of trust of any other offence

under law. This Court held in paragraph 174 of its judgment on the review

petition as follows:-

“174. The other direction, namely, the direction to CBI to
investigate “any other offence” is wholly erroneous and cannot be
sustained. Obviously, direction for investigation can be given
only if any offence is, prima facie, found to have been committed
or a person’s involvement is prima facie established, but a
direction to CBI to investigate whether any person has committed
an offence or not cannot be legally given. Such a direction would
be contrary to the concept and philosophy of “LIFE” and
“LIBERTY” guaranteed to a person under Article 21 of the
Constitution. This direction is in complete negation of various
decisions of this Court in which the concept of “LIFE” has been
explained in a manner which has infused “LIFE” into the letters of
Article 21.”

142. It could be perhaps argued that the misfeasance on the part of the

then Chief Minister and the Minister of State amounts to a criminal misconduct

also under Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In the

present case however, there is neither any such reference to this section nor any

prima facie finding in the impugned judgment rendered way back in March 1999.

In the circumstances in view of the proposition of law enunciated by a larger

bench in the above case it is difficult to sustain the direction to make appropriate

investigations through an impartial agency, and if satisfied that any criminal

offence has been committed by the aforesaid respondents in the discharge of

their duties, to take action as is warranted in law.

13

Epilogue

Approach Towards the Planning Process

143. The significance of planning in a developing country cannot be

understated. After years of foreign rule when we became independent, leaders

of free India realized that for advancement of our society and for an orderly

progress, we had to make a planned effort. Infact, even prior to independence

the leaders of the freedom struggle had applied their mind to this aspect. The

leaders of Indian Freedom Movement and particularly Pandit Jawaharlal Nehru,

our first Prime Minister always emphasised democratic planning as a method of

nation building and economic and social upliftment of Indian society. In March,

1931, the Indian National Congress at its Karachi Session passed a resolution to

the effect that the State shall take steps to secure that ownership and control of

the material resources of the community are so distributed as best to subserve

the common good. Pandit Nehru drafted this resolution in consultation with

Gandhiji and described it as a very short step in a socialist direction. In 1938,

the National Planning Committee of the Congress was set up under the

Chairmanship of Pandit Nehru who has been aptly described as “the Architect

of democratic planning in India”. The Economic Programme Committee of

the Congress under his Chairmanship made a recommendation of setting up a

permanent Planning Commission in 1947-48.

144. Shri H.K. Paranjape, (1924-1993) an eminent Economist and a

former Member of Monopolies and Restrictive Trade Practices Commission and

13

former Chairman of Railway Tariff Committee, in his monograph “Jawaharlal

Nehru and the Planning Commission” (published by Indian Institute of

Public Administration in September, 1964) notes that Nehru linked up the work

of Planning Commission directly to the Fundamental Rights and the Directive

Principles enunciated in the Constitution. Nehru always wanted to make sure

that the objectives of the Planning Commission were well defined and well

understood. In this article, the author further records as follows:-

“When the National Development Council was discussing
the Draft Outline of the Third Plan in September, 1960, he
emphasized the importance of remembering “what our objectives
were and not to lose ourselves in the forest of details that a Plan
had to deal with. Because, always when one considered the
detail, one must look back on the main thing, how far it fitted in
with the main issue; otherwise, it was out of place”.

Nehru believed in participation of different sections of society in framing of the

Plan. The emphasis has always been amongst others to put land to the best use

from the point of the requirements of our society, since land is a scarce resource

and it has to be used for the optimum benefit of the society

145. As stated above, we adopted the model of democratic planning

which involves the participation of the citizens, planners, administrators,

Municipal bodies and the Government as is also seen throughout the MRTP Act.

Thus when it comes to the Development Plan for a city, at the initial stage itself

there is the consideration of the present and future requirements of the city.

Suggestions and objections of the citizens are invited with respect to the

proposed plan, and then the planners apply their mind to arrive at the plan

which is prepared after a scientific study, and which will be implemented during

13

the next 10 to 20 years as laid down under Section 38 of the MRTP Act. The

plan is prepared after going through the entire gamut under Sections 21 to 30 of

the Act, and then only the sanction is obtained thereto from the State

Government. That is why the powers to modify the provisions of the plan are

restricted as noted earlier. If the plan is to be tinkered for the benefit of the

interested persons, or for those who can approach the persons in authority, then

there is no use in having a planned development. Therefore, Section 37 which

permits the minor modifications provides that even that should not result into

changing the character of the development plan, prior whereto also a notice in

the gazette is required to be issued to invite suggestions and objections. Where

the modification is of a substantial nature, then the procedure under Section 29

of the Act requiring a notice in the local newspapers inviting objections and

suggestions from the citizens is to be resorted to. Even the deletion of

reservation under Section 50 is at the instance of the appropriate authority only

when it does not want the land for the designated purpose.

146. The idea is that once the plan is formulated, one has to implement

it as it is, and it is only in the rarest of the rare cases that you can depart

therefrom. There is no exclusive power given to the State Government, or to the

planning authority, or to the Chief Minister to bring about any modification,

deletion or de-reservation, and certainly not by a resort to any of the D.C. Rules.

All these constituents of the planning process have to follow the mandate under

Section 37 or 22A as the case may be if any modification becomes necessary.

That is why this Court observed in paragraph 45 of Chairman, Indore Vikas

13

Prodhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors. reported in

2007 (8) SCC 705 as follows:-

“45. Town and country planning involving land
development of the cities which are sought to be achieved
through the process of land use, zoning plan and regulating
building activities must receive due attention of all concerned.
We are furthermore not oblivious of the fact that such planning
involving highly complex cities depends upon scientific
research, study and experience and, thus, deserves due
reverence.

(emphasis supplied)

Role of Municipalities

147. The municipalities which are the planning authorities for the

purpose of bringing about the orderly development in the municipal areas, are

given a place of pride in this entire process. They are expected to render wide

ranging functions which are now enumerated in the constitution. They are now

given a status under Part IX A of the Constitution introduced by the 74th

Amendment w.e.f. 1.6.1993. Article 243W lays down the powers of the

Municipalities to perform the functions which are listed in the Twelfth Schedule.

For performing these functions, planning becomes very important. This Twelfth

Schedule contains the following items:-

“TWELFTH SCHEDULE

[Article 243W]

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings.

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and, commercial purposes.

6. Public health, sanitation conservancy and solid waste management.

7. Fire services.

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8. Urban forestry, protection of the environment and promotion of
ecological aspects.

9. Safeguarding the interests of weaker sections of society, including
the handicapped and mentally retarded.

10. Slum improvement and upgradation.

11. Urban poverty alleviation.

12. Provision of urban amenities and facilities such as parks, gardens,
playgrounds.

13. Promotion of cultural, educational and aesthetic aspects.

14. Burials and burial grounds; cremations, cremation grounds and
electric crematoriums.

15. Cattle ponds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street lighting, parking lots, bus stops
and public conveniences.

18. Regulation of slaughter houses and tanneries.”

The primary powers of the Municipal Corporations in Maharashtra such as PMC

(excluding some Municipal Corporations which have their separate enactments)

and of the Standing Committees of the Corporations are enumerated in the

BPMC Act. Coupled with those powers, the Municipal Corporations have their

powers under MRTP Act. These are the statutory powers, and they cannot be

bypassed.

The Responsibility of the Municipal Commissioner and the Senior

Government Officers

148. The Municipal Commissioner is the Chief Executive of the Municipal

Corporation. It is his responsibility to act in accordance with these laws and to

protect the interest of the Corporation. The Commissioner is expected to place

the complete and correct facts before the Government when any such occasion

arises, and stand by the correct legal position. That is what is expected of the

senior administrative officers like him. That is why they are given appropriate

13

protection under the law. In this behalf, it is worthwhile to refer to the speech of

Sardar Vallabhbhai Patel, the first Home Minister of independent India, made

during the Constituent Assembly Debates, where he spoke about the need of the

senior secretaries giving their honest opinions which may not be to the liking of

the Minister. While speaking about the safeguards for the Members of Indian

Civil Service (now Indian Administrative Service), he said-

“…To-day, my Secretary can write a note opposed to my
views. I have given that freedom to all my Secretaries. I have
told them `if you do not give your honest opinion for fear that it
will displease your Minister, please then you had better go. I will
bring another Secretary.’ I will never be displeased over a frank
expression of opinion. That is what the Britishers were doing with
the Britishers. We are now sharing the responsibility. You have
agreed to share responsibility. Many of them with whom I have
worked, I have no hesitation in saying that they are patriotic, as
loyal and as sincere as myself.”

(Ref: Constituent Assembly Debates. Vol.10 p. 50)

Now unfortunately, we have a situation where the senior officers are changing

their position looking to the way the wind is blowing.

Expectations from the Political Executive

149. Same are the expectations from the political executive viz. that it

must be above board, and must act in accordance with the law and not in

furtherance of the interest of a relative. However, as the time has passed, these

expectations are belied. That is why in the case of Shri Shivajirao Nilangekar

(supra) this Court had to lament in paragraph 51 of the judgment as follows:-

“51. This Court cannot be oblivious that there has been a
steady decline of public standards or public morals and public
morale. It is necessary to cleanse public life in this country along
with or even before cleaning the physical atmosphere. The

13

pollution in our values and standards in (sic is) an equally grave
menace as the pollution of the environment. Where such
situations cry out, the courts should not and cannot remain mute
and dumb.”

150. People of a state look up to the Chief Minister and those who

occupy the high positions in the Government and the Administration for redressal

of their grievances. Citizens are facing so many problems and it is expected of

those in such positions to resolve them. Children are particularly facing serious

problems concerning facilities for their education and sports, quality of teaching,

their health and nutrition. It is the duty of those in high positions to ensure that

their conduct should not let down the people of the country, and particularly the

younger generation. The ministers, corporators and the administrators must

zealously guard the spaces reserved for public amenities from the preying hands

of the builders. What will happen, if the protectors themselves become

poachers? Their decisions and conduct must be above board. Institutional trust

is of utmost importance. In the case of Bangalore Medical Trust (supra) this

court observed in paragraph 45 of its judgment that “the directions of the Chief

Minister, the apex public functionary of the State, was in breach of public trust,

more like a person dealing with his private property than discharging his

obligation as head of the State administration in accordance with law and rules”.

Same is the case in the present matter where Shri Manohar Joshi, the then Chief

Minister and Shri Ravindra Mane, the Minister of State have failed in this test,

and in discharge of their duties. Nay, they have let down the people of the city

and the state, and the children.

Importance of the spaces for public amenities

13

151. As we have seen, the MRTP Act gives a place of prominence to the

spaces meant for public amenities. An appropriately planned city requires good

roads, parks, playgrounds, markets, primary and secondary schools, clinics,

dispensaries and hospitals and sewerage facilities amongst other public amenities

which are essential for a good civic life. If all the spaces in the cities are covered

only by the construction for residential houses, the cities will become concrete

jungles which is what they have started becoming. That is how there is need to

protect the spaces meant for public amenities which cannot be sacrificed for the

greed of a few landowners and builders to make more money on the ground of

creating large number of houses. The MRTP Act does give importance to the

spaces reserved for public amenities, and makes the deletion thereof difficult

after the planning process is gone through, and the plan is finalized. Similar are

the provisions in different State Acts. Yet, as we have seen from the earlier

judgments concerning the public amenities in Bangalore (Bangalore Medical

Trust (supra) and Lucknow (M.I Builders Pvt. Ltd. (supra), and now as is

seen in this case in Pune, the spaces for the public amenities are under a

systematic attack and are shrinking all over the cities in India, only for the

benefit of the landowners and the builders. Time has therefore come to take a

serious stock of the situation. Undoubtedly, the competing interest of the

landowner is also to be taken into account, but that is already done when the

plan is finalized, and the landowner is compensated as per the law. Ultimately

when the land is reserved for a public purpose after following the due process of

law, the interest of the individual must yield to the public interest.

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152. As far as the MRTP Act is concerned, as we have noted earlier,

there is a complete mechanism for the protection of the spaces meant for public

amenities. We have seen the definition of substantial modification, and when the

reservation for a public amenity on a plot of land is sought to be deleted

completely, it would surely be a case of substantial modification, and not a minor

modification. In that case what is required is to follow the procedure under

Section 29 of the Act, to publish a notice in local newspapers also, inviting

objections and suggestions within sixty days. The Government and the Municipal

Corporations are trustees of the citizens for the purposes of retention of the plots

meant for public amenities. As the Act has indicated, the citizens are vitally

concerned with the retention of the public amenities, and, therefore deletion or

modification should be resorted to only in the rarest of rare case, and after fully

examining as to why the concerned plot was originally reserved for a public

amenity, and as to how its deletion is necessary. Otherwise it will mean that we

are paying no respect to the efforts put in by the original planners who have

drafted the plan, as per the requirements of the city, and which plan has been

finalized after following the detailed procedures as laid down by the law.

Suggested safeguards for the future

153. Having noted as to what has happened in the present matter, in

our view it is necessary that we should lay down the necessary safeguards for

the future so that such kind of gross deletions do not occur in the future, and the

provisions of the Act are strictly implemented in tune with the spirit behind.

13

(i) Therefore, when the gazette notification is published, and the public

notice in the local newspapers is published under Section 29 (or under Section

37) it must briefly set out the reasons as to why the particular modification is

being proposed. Since Section 29 provides for publishing a notice in the `local

newspapers’, we adopt the methodology of Section 6 (2) of the L.A. Act, and

expect that the notice shall be published atleast in two daily newspapers

circulating in the locality, out of which atleast one shall be in the regional

language. We expect the notice to be published in the newspapers with wide

circulation and at prominent place therein.

(ii) Section 29 lays down that after receiving the suggestions and objections,

the procedure as prescribed in Section 28 is to be followed. Sub-section (3) of

Section 28 provides for holding an inquiry thereafter wherein the opportunity of

being heard is to be afforded by the Planning Committee (of the Planning

Authority) to such persons who have filed their objections and made

suggestions. The Planning Committee, therefore, shall hold a public inquiry for

all such persons to get an opportunity of making their submission, and then only

the Planning Committee should make its report to the Planning Authority.

(iii) One of the reasons which is often given for modification/deletion of

reservation is paucity of funds, which was also sought to be raised in the present

matter by the Municipal Commissioner for unjustified reasons, in as much as the

compensation amount had already been paid. However, if there is any such

difficulty, the planning authority must call upon the citizens to contribute for the

project, in the public notice contemplated under Section 29, in as much as these

14

public amenities are meant for them, and there will be many philanthropist or

corporate bodies or individuals who may come forward and support the public

project financially. That was also the approach indicated by this Court in Raju

S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222].

Primary Education

154. Primary education is one of the important responsibilities to be

discharged by Municipalities under the Bombay Primary Education Act 1947.

Again, to state the reality, even after sixty years after the promulgation of the

Constitution, we have not been able to attain full literacy. Of all the different

areas of education, primary education is suffering the most. When the

Constitution was promulgated, a Directive Principle was laid down in Article 45

which states that the State shall endeavour to provide, within the period of ten

years from the commencement of the Constitution, for free and compulsory

education for all children until they complete the age of fourteen years. This has

not been achieved yet. The 86th Amendment to the Constitution effected in the

year 2002 deleted this Article 45, and substituted it with new Article 45 which

lays down that the State shall endeavour to provide early childhood care and

education for all children until they complete the age of six years. The

amendment has made Right to Education a Fundamental Right under Article 21A.

This Article lays down that the State shall provide free and compulsory education

to all children of the age of six to fourteen years in such manner as the State

may, by law, determine. In the year 2009 we passed the Right of Children to

14

Free and Compulsory Education Act 2009. All these laws have however not been

implemented with the spirit with which they ought to have been. We have

several national initiatives in operation such as the Sarva Shiksha Abhiyan,

District Primary Education Programme, and the Universal Elementary Education

Programme to name a few. However, the statistical data shows that we are still

far away from achieving the goal of full literacy.

155. Nobel laureate Shri Amartya Sen commented on our tardy progress

in the field of basic education in his Article `The Urgency of Basic Education’ in

the seminar “Right to Education-Actions Now” held at New Delhi on 19.12.2007

as follows:-

“India has been especially disadvantaged in basic
education, and this is one of our major challenges today. When
the British left their Indian empire, only 12 per cent of the India
population was literate. That was terrible enough, but our
progress since independence has also been quite slow. This
contrasts with our rapid political development into the first
developing country in the world to have a functioning
democracy.”

The story for Pune city is not quite different. Since the impugned development

permission given by the Municipal Corporation was on the basis of no objection

of the Chief Minister dated 21.8.1996, we may refer to the Educational Statistics

of Pune city, at that time. As per the Census of India 1991, the population of

Pune city was 24,85,014, out of which 17,14,273 were the literate persons which

comes to just above 2/3 of the population. The percentage of literacy has gone

up thereafter, but still we are far away from achieving full literacy and from the

goal of providing quality education and facilities at the primary level.

14

156. There is a serious problem of children dropping out from the

primary schools. There are wide ranging factors which affect the education of

the children at a tender age, such as absence of trained teachers having the

proper understanding of child psychology, ill-health, and mal-nutrition. The

infrastructural facilities are often very inadequate. Large number of children are

cramped into small classrooms and there is absence of any playground attached

with the school. This requires adequate spaces for the primary schools. Even in

the so called higher middle class areas in large cities like Pune, there are hardly

any open spaces within the housing societies and, therefore, adequate space for

the playgrounds of the primary schools is of utmost importance. Having noted

this scenario and the necessity of spaces for primary schools in urban areas, it is

rather unfortunate that the then Chief Minister who claims to be an educationist

took interest in releasing a plot duly reserved and acquired for a primary school

only for the benefit of his son-in-law. It also gives a dismal picture of his deputy,

the Minister of State acting to please his superior, and so also of the Municipal

Commissioner ignoring his statutory responsibilities.

Operative order with respect to the disputed buildings

157. We have held the direction given by the State Government for the

deletion of reservation on Final Plot No.110, and the commencement and

occupation certificates issued by the Pune Municipal Corporation in favour of the

developer were in complete subversion of the statutory requirements of the

MRTP Act. The development permission was wholly illegal and unjustified. As

far as the building meant for the tenants is concerned, the developer as well as

14

PMC have indicated that they have no objection to the building being retained.

As far as the ten storied building meant for the private sale is concerned, the

developer had offered to hand over half the number of floors to PMC, provided

it permits the remaining floors to be retained by the developer. PMC has

rejected that offer since the plot was reserved for a primary school. The building

must therefore be either demolished or put to a permissible use. The illegal

development carried out by the developer has resulted into a legitimate primary

school not coming up on the disputed plot of land. Thousands of children would

have attended the school on this plot during last 15 years. The loss suffered by

the children and the cause of education is difficult to assess in terms of money,

and in a way could be considered to be far more than the cost of construction of

this building. Removal of this building is however not going to be very easy. It

will cause serious nuisance to the occupants of the adjoining buildings due to

noise and air pollution. The citizens may as well initiate actions against the PMC

for appropriate reliefs. It is also possible that the developer may not be able to

remove the disputed building within a specified time, in which case the PMC will

have to incur the expenditure on removal. It will, therefore, be open to the

developer to redeem himself by offering the entire building to PMC for being

used as a primary school or for the earmarked purpose, free of cost. If he is so

inclined, he may inform PMC that he is giving up his claim on this building also in

favour of PMC.

158. The High Court has not specified the time for taking the necessary

steps in this behalf. Hence, for the sake of clarity, we direct the developer to

14

inform the PMC within two weeks from today whether he is giving up the claim

on the ten storied building named `Sundew Apartments’ apart from the tenants’

building in favour of PMC, failing which PMC will issue a notice to the developer

within two weeks thereafter, calling upon him to furnish particulars to PMC within

two weeks from the receipt of the notice, as to in what manner and time frame

he proposes to demolish this ten storied building. In the event the developer

declines or fails to do so, or does not respond within the specified period, or if

PMC forms an impression after receiving his reply that the developer is incapable

of removing the building in reasonably short time, the PMC will go ahead and

demolish the same. In either case the decision of the City Engineer of PMC with

respect to the manner of removal of the building and disposal of the debris shall

be final.

159. As far as the ownership of the plot is concerned, the same will

abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994

which will be decided in accordance with law. The old tenants will continue to

occupy the building meant for the tenants.

160. The PMC and the State Government have fairly changed/reviewed

their legal position in this Court, and defended their original stand about the

illegality of the construction. We therefore, absolve both of them from paying

costs to the original petitioners. The order with respect to payment of cost of Rs.

10,000/- against the then Chief Minister and the Minister of State to each of the

original petitioners however remains. Over and above we add Rs. 15,000/- for

each of them to pay to the two petitioners separately towards the cost of these

14

appeals in this Court. Thus, the then Chief Minister and the Minister of State

shall each pay Rs. 25,000/- to the two petitioners separately.

161. The spaces for public amenities such as roads, playgrounds,

markets, water supply and sewerage facilities, hospitals and particularly

educational institutions are essential for a decent urban life. The planning

process therefore assumes significance in this behalf. The parcels of land

reserved for public amenities under the urban plans cannot be permitted to be

tinkered with. The greed for making more money is leading to all sorts of

construction for housing in prime city areas usurping the lands meant for public

amenities wherever possible and in utter disregard for the quality of life. Large

number of areas in big cities have already become concrete jungles bereft of

adequate public amenities. It is therefore, that we have laid down the guidelines

in this behalf which flow from the scheme of the MRTP Act itself so that this

menace of grabbing public spaces for private ends stops completely. We are

also clear that any unauthorised construction particularly on the lands meant for

public amenities must be removed forthwith. We expect the guidelines laid

down in this behalf to be followed scrupulously.

The conclusions in nutshell and the consequent order

162. In the circumstances we conclude and pass the following order –

(i) We hold that the direction given by the Government of Maharashtra for

the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the

consequent Commencement and Occupation certificates issued by the Pune

Municipal Corporation (PMC) in favour of the developer were in complete

14

subversion of the statutory requirements of the MRTP Act. The development

permission was wholly illegal and unjustified.

(ii) The direction of the High Court in the impugned judgment dated

6/15.3.1999 in Writ Petition Nos. 4433 and 4434/1998 for demolition of the

concerned building was fully legal and justified.

(iii) The contention of the landowner that his right of development for

residential purposes on the concerned plot under the erstwhile Town Planning

scheme subsisted in spite of coming into force of Development Plan reserving

the plot for a primary school, is liable to be rejected.

(iv) The acquisition of the concerned plot of land was complete with the

declaration under Section 126 of the MRTP Act read with Section 6 of Land

Acquisition Act and the same is valid and legal.

(v) The order passed by the High Court directing the Municipal Corporation to

move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore

necessary. The High Court is expected to decide the revived First Appeal at the

earliest and preferably within four months hereafter in the light of the law and

the directions given in this judgment.

(vi) The developer shall inform the PMC whether he is giving up the claim over

the construction of the ten storied building (named `Sundew Apartments’) apart

from the tenants’ building in favour of PMC, failing which either the developer or

the PMC shall take steps for demolition of the disputed building (Sundew

Apartments) as per the time frame laid down in this judgment.

14

(vii) The former occupants of F.P No. 110 will continue to reside in the building

constructed for the tenants on the terms stated in the judgment.

(viii) The corporation will not be required to pay any amount to the developer

for the tenants’ building constructed by him, nor for the ten storied building in

the event he gives up his claim over it in favour of PMC.

(ix) The strictures passed by the High Court against the then Chief Minister of

Maharashtra Shri Manohar Joshi and the then Minister of State Shri Ravindra

Mane are maintained. The prayer to expunge these remarks is rejected. The

remarks against the Municipal Commissioner are however deleted.

(x) The order directing criminal investigation and thereafter further action as

warranted in law, is however deleted in view of the judgment of this Court in the

case of Common Cause A Registered Society Vs. Union of India reported

in 1999 (6) SCC 667

(xi) The then Chief Minister and the then Minister of State shall each pay cost

of Rs. 15,000/- to each of the two petitioners in the High Court towards these

ten appeals, over and above the cost of Rs. 10,000/- awarded by the High Court

in the writ petitions payable by each of them to the two writ petitioners.

(xii) The State Government and the Planning authorities under the MRTP Act

shall hereafter scrupulously follow the directions and the suggested safeguards

with respect to the spaces meant for public amenities.

All the appeals stand disposed of as above.

………………………….J.

( R.V. Raveendran )

14

…………………………..J.

( H.L. Gokhale )

New Delhi

Dated: October 12, 2011.


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