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
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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
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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
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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.
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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
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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 the75
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
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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 for78
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 any79
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
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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
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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
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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
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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
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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
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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
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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,
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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
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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
97
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,
98
(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 been12
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.
13
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. The13
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
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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.
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(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.
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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.
