CASE NO.: Review Petition (civil) 1809 of 2005 PETITIONER: Promoters & Builders Association of Pune RESPONDENT: Pune Municipal Corporation & Ors DATE OF JUDGMENT: 11/05/2007 BENCH: G.P. Mathur & R.V. Raveendran JUDGMENT:
J U D G M E N T
REVIEW PETITION (CIVIL) NO.1809 OF 2005
IN
CIVIL APPEAL NO.3800 OF 2003
WITH
REVIEW PETITION (CIVIL) NOS.1856-1857 OF 2005
IN
CIVIL APPEAL NO.3804 OF 2003
G.P. Mathur, J.
These are review petitions seeking review of the judgment and
order dated 5.5.2004 passed by this Court in Civil Appeal No.3800 of
2003. We will give the facts of Review Petition No.1809 of 2005,
which is the leading case.
2. The Maharashra legislature enacted Maharashtra Regional
Town Planning Act, 1966 (for short ‘the Act’) for planning and
development of the cities, constitution of Regional Planning Boards
and to make provision for the preparation of development plans with a
view to ensuring that Town Planning Schemes are made in a proper
manner and their execution is made effective and for ancillary
purposes. Chapter III of the Act deals with development plans.
Under the Scheme of the Act, Development Control Rules are framed
separately for each city keeping in view the peculiar requirements of
each city/town. The dispute here pertains to Development Control
Rules (for short ‘DCR’) for Pune which has been constituted as a
corporation under the Bombay Provincial and Municipal Corporation
Act, 1949 (for short ‘BPMC Act’). Pune Municipal Corporation is
also the planning authority under the provisions of the Act for the city
of Pune. A concept of Transfer of Development Rights (for short
‘TDR’) was introduced in the Regulations of Greater Bombay and the
object of introducing such concept was to facilitate acquisition of land
for public purposes. The concept of TDR operates in the following
manner :-
“The owner or the lessee of the plot of land will hand
over the possession of the reserved land to the planning
authority and as against such handing over, such owner
or the lessee will be granted “development right
certificate” so as to enable such owner to construct built
up area equivalent to permissible FSI of the land acquired
in one or more other plots and in the zones specified.
Such one or more plots are termed as “receiving plots”.
3. The State of Maharashtra issued a directive under Section 37(1)
of the Act to the Pune Municipal Corporation on 8.7.1993 to amend
Development Control Rules of Pune city. The Pune Municipal
Corporation then issued a notification in the Gazette on 30.9.1993 by
which the process of modification was initiated and it was notified
that the modification would be on the same lines as applicable in
Greater Bombay. One of the proposed modifications was in Rule
N.2.4.11 which was as under :
“FSI of receiving plot shall be allowed to be exceeded
by not more than 0.4 in respect of D.R. available in
respect of the reserved plot and upto a future 0.4 in
respect of D.R. available in respect of the lands
surrendered for road widening or construction of new
roads as prescribed.”
After prescribed procedure had been completed, the
Corporation forwarded the proposed modification to the State
Government. The State Government then issued a notification under
Section 37(2) of the Act on 5.6.1997 sanctioning the proposal and
notified the modified Development Control Rules of Pune Municipal
Corporation. Rule N.2.4.11 which was sanctioned and notified by the
State Government reads as under :
“(a) The FSI on receiving plots shall be allowed to be
exceeded not more than 0.4 in respect of DR available for
the reserved plots.
(b) The FSI on receiving plots shall be allowed to be
exceeded by further 0.4 in respect of DR available on
account of the land surrendered for the road widening or
construction of new road from very said plot.”
4. The State Government while sanctioning Rule N.2.4.11
introduced a departure from the Bombay Development Control Rules.
Some other changes were also made by the State Government in the
Rules which had been proposed by the Pune Municipal Corporation.
Thereafter, some exchange of correspondence and meetings took
place between the Pune Municipal Corporation and the State
Government as regards the interpretation of the above Rule. The
Chief Secretary of the Urban Development Department, Government
of Maharashtra then sent a detailed letter to the Pune Municipal
Corporation on 11.6.1998 regarding the correct interpretation of the
notified Development Control Rules. Regarding Rule N.2.4.11 it was
stated as under in the said letter :
“8. Use of 0.4 Transferable Development Rights and
0.4 Development Plan Road together making 0.8 Floor
Space Index on the same property.
The policy adopted by the Mumbai Municipal
Corporation should be followed by the Pune Municipal
Corporation.”
5. In view of the clarification issued by the State Government, the
Pune Municipal Corporation issued a circular on 20.7.1999 and with
regard to Rule N.2.4.11 it was stated as under :
“As per the rule No.2.4.11 (a & b) of the Development
Control Rules the TDR of 0.4 of the total floor space area
of the receiving plot out of TDR of road widening or
other roads widening and 0.4 of the total floor space area
of the receiving plot out of TDR of areas reserved for
other purposes is allowed. Thus a maximum of 0.8 of
the total floor space area of the receiving plot shall be
permitted.”
More than two years thereafter, the Pune Municipal
Corporation passed a Resolution on 29.10.2001 not to allow use of
additional 0.4 FSI in the area other then the plot from which the land
for road widening has been acquired which was in tune with clause (b)
of D.C.R.-2.4.11. This decision of the Corporation was endorsed by
the General Body on 21.11.2001. It may be pointed out here that
while sanctioning the proposal of the Pune Municipal Corporation, the
State Government added the words “from the very said plot” towards
the end of clause (b) of Development Control Rule N.2.4.11 in the
notification which was issued by it on 5.6.1997. It is the addition of
these words by the State Government which gave rise to the litigation
which was ultimately decided by this Court in Civil Appeal No.3820
of 2003 and the introduction of said words is also under challenge in
the present review petitions.
6. Promoters and Builders Association of Pune, a Society
registered under the provisions of Societies Registration Act, filed
Writ Petition No.5198 of 2001 against Pune Municipal Corporation
and State of Maharashtra challenging the modified Development
Control Rules, especially Rule N-2.3(A) and N.2.4.11 (a) and (b),
wherein the principal relief claimed was that a writ of mandamus be
issued commanding the respondents to the writ petition to implement
Development Control Rule N-2.4.11(b) in a manner that the road area
in respect of the plot, which is reserved for the road can be utilized
being 0.4 FSI on the same plot and the balance unutilized FSI, if any,
can be converted into TDR and can be used anywhere on a receiving
plot to the extent of 0.4 FSI, in addition to the 0.4 FSI permissible on
the receiving plot for amenities under Rule N-2.4.11(a) and direct the
Municipal Corporation to forthwith dispose of the applications which
had been submitted by the members of the petitioner Association in
the light of said clarification. The writ petition was contested by the
Pune Municipal Corporation and State of Maharashtra by filing
counter affidavits. The High Court after considering the provisions of
Section 37 of the Act and also of the Development Control Rules,
allowed the writ petition on 23.4.2002. It will be useful to reproduce
the findings recorded by the High Court and the relevant part of paras
18, 19 and 21 of the judgment of the High Court are reproduced
below:
“18. In our opinion, therefore, it was not possible for
the State to add the words “from the same plot” in clause
2.4.11 as the same have been added without being
publicized as required by the provisions of Section 37(1).
The planning authority did not want the words “same
plot” to be introduced. It did not therefore propose the
modifications in that fashion. It is the claim of the
Planning Authority before us that the words were
inserted by the Government. There is no answer to this
by the State Government and it was obvious that it was
done by the State Government. Since the addition has
been done by the State without following the procedure
established by Section 37(1)(A) or Section 37(1), the
words added cannot be read as validly added in the
Development Regulations and the addition will have to
be struck down as beyond the competence of the State
Government. The State Government has not directed
under Section 37(1) to make modification in the
Regulations as the direction does not include the words
“from the same plot”. There was no notice to the persons
affected and therefore there was no objection raised to it.
The insertion of those words by the State while granting
sanction is therefore tantamount to modifying the Final
Development Plan in the exercise of its powers under
Section 37(1)(A). The State could have done so but then
it was duty bound to follow the procedure under Section
37(1)(A). Obviously there is failure on the part of the
State to do so and therefore inclusion of those words in
the Regulation is illegal. …….. ………………………..
19. ………………………………. On the principles of
promissory estoppel also, therefore, the Corporation
cannot be allowed to insist that the additional 0.4 FSI be
used on the same very plot. In our opinion, therefore,
even if the interpretation put by us on Section 37 is not
accepted still on the ground of promissory estoppel, the
corporation will have to be restrained from requiring the
owners or builders from giving up additional 0.4 FSI on
the interpretation of the regulation of 2.4.11 to mean that
it must be used on the same very plot.
21. In the result, therefore, the petitions succeed and
are allowed. The words “from the same very plot” in
clause 2.4.11 of the Development Control Regulation as
passed by the Planning Authority, Municipal
Corporation, Pune are hereby struck down. The
respondents Planning Authority is directed to permit the
use of 0.8 FSI to the petitioners and other similarly
situated owners, builders etc. as transferred development
rights wholly or on part as proposed by them.
Consequently, the respondents are directed to sanction
the building plan submitted by the petitioners
incorporating FSI of 0.8 as available in accordance with
D.C. Rules 2.4.11.”
7. Feeling aggrieved by the decision of the High Court, the Pune
Municipal Corporation filed Civil Appeal No.3800 of 2003 in this
Court. After hearing learned counsel for the parties, this Court
allowed the appeal by the judgment and order dated 5.5.2004. The
judgment of the High Court was set aside and the writ petition filed
before the High Court was dismissed. For the sake of convenience,
the relevant part of the judgment of this Court is reproduced below :
“The question now for consideration is whether the
State Government can make any changes of its own in
the modifications submitted by Planning Authority or
not. The impugned Section 37 of the Act reads as
follows:
“37(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) …..
(1AA) …..
(1B) ……
(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.”
(emphasis supplied)
Reading of this provision reveals that under
Clause (1), the Planning Authority after inviting
objections and suggestions regarding the proposed
amendment and after giving notice to all affected persons
shall submit the proposed modification for sanction to the
Government. The deliberation with the public before
making the amendment is over at this stage. The
Government, thereafter, under Clause (2) is given
absolute liberty to make or not to make necessary inquiry
before granting sanction. Again, while according
sanction, Government may do so with or without
modifications. Government could impose such conditions
as it deem fit. It is also permissible for the Government to
refuse the sanction. This is the true meaning of the
Clause (2). It is difficult to uphold the contrary
interpretation given by the High Court. The main
limitation for the Government is made under Clause (1)
that no authority can propose an amendment so as to
change the basic character of the development plan. The
proposed amendment could only be minor within the
limits of the development plan. And for such minor
changes it is only normal for the government to exercise
a wide discretion, by keeping various relevant factors in
mind. Again, if it is arbitrary or unreasonable the same
could be challenged. It is not the case of the Respondents
herein that the proposed change is arbitrary or
unreasonable. They challenged the same citing the reason
that the Government is not empowered under the Act to
make such changes to the modification.
Making of DCR or amendment thereof are
legislative functions. Therefore, Section 37 has to be
viewed as repository of legislative powers for effecting
amendments to DCR. That legislative power of amending
DCR is delegated to State Government. As we have
already pointed out, the true interpretation of Section
37(2) permits the State government to make necessary
modifications or put conditions while granting sanction.
In Section 37(2), the legislature has not intended to
provide for a public hearing before according sanction.
The procedure for making such amendment is provided
in Section 37(1). Delegated legislation cannot be
questioned for violating principles of natural justice in its
making except when the statute itself provides for that
requirement. Where the legislature has not chosen to
provide for any notice or hearing, no one can insist upon
it and it is not permissible to read natural justice into such
legislative activity. Moreover, a provision for ‘such
inquiry as it may consider necessary’ by a subordinate
legislating body is generally an enabling provision to
facilitate the subordinate legislating body to obtain
relevant information from any source and it is not
intended to vest any right in anybody. (Union of India
and Anr. v. Cynamide India Ltd and Anr. (1987) 2 SCC
720 paragraphs 5 and 27. See generally HSSK Niyami
and Anr. v. Union of India and Anr. (1990) 4 SCC 516
and Canara Bank v. Debasis Das (2003) 4 SCC 557).
While exercising legislative functions, unless
unreasonableness or arbitrariness is pointed out, it is not
open for the Court to interfere. (See generally ONGC v.
Assn. of Natural Gas Consuming Industries of Gujarat
1990 (Supp) SCC 397) Therefore, the view adopted by
the High Court does not appear to be correct.
The DCR are framed under Section 158 of the Act.
Rules framed under the provisions of a statute form part
of the statute. (See General Office Commanding-in-Chief
and Anr. v. Dr. Subhash Chandra Yadav and Anr. (1988)
2 SCC 351, paragraph 14). In other words, DCR have
statutory force. It is also a settled position of law that
there could be no ‘promissory estoppel’ against a statue.
(A.P Pollution Control Board II v. M V Nayudu (2001) 2
SCC 62, paragraph 69, Sales Tax Officer and Another v.
Shree Durga Oil Mills (1998) 1 SCC 572, paragraphs 21
and 22 and Sharma Transport v. Govt. of AP (2002) 2
SCC 188, paragraphs 13 to 24). Therefore, the High
Court again went wrong by invoking the principle of
‘promissory estoppel’ to allow the petition filed by the
Respondents herein.
For the foregoing reasons, the view adopted by the
High Court cannot be sustained.”
8. We have heard Mr. U.U. Lalit and Mr. V.A. Bobde, Senior
Advocates for the review petitioners and Mr. Mukul Rohatgi, Senior
Advocate for the respondents at considerable length and have
examined the record.
9. The main challenge of the review petitioners is to the addition
of the words “from the very said plot” towards the end of clause (b) in
DCR-2.4.11. Learned counsel for the petitioners have submitted that
in the proposal sent by the Pune Municipal Corporation after
following the procedure prescribed in Sub-section (1) of Section 37
the aforesaid words were not there. However, the State Government
while sanctioning the proposal added the said words which in law it
could not do. It has been submitted that the Municipal Corporation
had submitted the proposal after inviting objections and after giving
an opportunity of hearing and the proposal so made by the Municipal
Corporation could not have been modified or altered by the State
Government without inviting objections or giving an opportunity of
hearing with regard to changes which it proposed to make and which
were ultimately made in the notification issued by it. This point has
been considered and examined in the judgment and order of this Court
dated 5.5.2004. The language of Sub-section (2) of Section 37 uses
the expression “sanction the modification with or without such
changes, and subject to such conditions as it may deem fit, or refuse to
accord sanction”. The language of the Section is very clear and it
empowers the State Government to sanction the proposal of the
Municipal Corporation regarding modification of Development
Control Rules “with or without any changes as it may deem fit”.
These words are important and cannot be ignored. They have to be
given their natural meaning. In Union of India v. Hansoli Devi (2002)
7 SCC 273 it has been held that it is a cardinal principle of
construction of a statute that when the language of the statute is plain
and unambiguous, then the Court must give effect to the words used
in the statute and it would not be open to the court to adopt a
hypothetical construction on the ground that such construction is more
consistent with the alleged object and the policy of the Act. In Nathi
Devi v. Radha Devi Gupta (2005) 2 SCC 271 it was emphasized that
it is well settled that in interpreting a statute, effort should be made to
give effect to each and every word used by the legislature. The courts
always presume that the legislature inserted every part of a statute for
a purpose and the legislative intention is that every part of the statute
should have effect. In Dr.Ganga Prasad Verma v. State of Bihar
(1995) Supp. (1) SCC 192 it has been held that where the language of
the Act is clear and explicit, the Court must give effect to it, whatever
may be the consequences, for in that case the words of the statute
speak the intention of the legislature. Therefore, the view taken by this
Court in the judgment and order dated 5.5.2004 that the State
Government had full authority to make any changes or add any
condition in the proposal of the Municipal Corporation is perfectly
correct. In fact, on the plain language of the statute no other view can
possibly be taken.
10. The High Court also accepted the contention of the writ
petitioners based on the ground of promissory estoppel. The
Development Control Rules are framed by the State Government in
exercise of power conferred by Section 158 of the Act. Consequently
they must be treated as if they were in the Act and are to be of the
same effect as if contained in the Act and are to be judicially noticed
for all purposes of construction and obligation. [See State of U.P. v.
Babu Ram Upadhya AIR 1961 SC 751 and State of Tamil Nadu v.
Hind Stones AIR 1981 SC 711 (para 11)]. If the Development
Control Rules have the same force as that of a statute, then no
question of promissory estoppel would arise as the principle is well
settled that there can be no estoppel against a statute. We are in
complete agreement with the view taken earlier by this Court and
there is not even a slightest ground which may cast any doubt
regarding the correctness of the earlier judgment.
11. As was observed by this Court in Col. Avtar Singh Sekhon v.
Union of India (1980) Supp. SCC 562 review is not a routine
procedure. A review of an earlier order is not permissible unless the
Court is satisfied that material error, manifest on the face of the order
undermines its soundness or results in miscarriage of justice. A
review of judgment in a case is a serious step and reluctant resort to it
is proper only where a glaring omission or patent mistake or like
grave error has crept in earlier by judicial fallibility ….. The stage of
review is not a virgin ground but review of an earlier order which has
the normal feature of finality.
This view has been reiterated in Devender Pal Singh v. State
(2003) 2 SCC 501 (para 16). This being the legal position, there is
absolutely no ground for review of the judgment and order dated
5.5.2004. The review petitions are, therefore, liable to be dismissed.
12. Learned counsel for the review petitioners next submitted that
after the clarification had been issued by the Chief Secretary of the
Urban Development Authority of the State Government by the letter
dated 11.6.1998 and consequent circular had been issued by the Pune
Municipal Corporation on 20.7.1999 which provided that a maximum
of 0.8 of the total floor space area of the receiving plot shall be
permitted, large number of land owners whose properties were
reserved for public amenities like roads, schools, gardens, etc. were
encouraged to hand over their lands to the Pune Municipal
Corporation free of cost, in the expectation of fetching higher price for
this TDR as a result of greater utilization to the extent of 0.8 being
permissible as against the earlier 0.4 FSI. Similarly, the developers
while negotiating for buildable properties considered total FSI
potential of 1.8 (1 + 0.8 TDR, FSI) as against 1.4 FSI and have
accordingly paid much higher consideration towards the land. Many
developers commenced their projects after sanctioning regular 1.0 FSI
and as per the Pune Municipal Corporation procedure applied for
further 0.8 TDR, FSI. In fact, many builders and land owners had
got their entire project lay out approved from the Corporation with 1.8
FSI and had constructed some buildings upto the sanctioned height.
Many such plans were approved by the Pune Municipal Corporation
between the period 20.7.1999 and 21.11.2001 when the second
circular was issued adopting a different stand. It has been urged that
refusal of Pune Municipal Corporation to honour its own lay out plan
has given rise to disputes between developers and buyers of the flats
and also between the developers and land owners. The difficulty
being faced by the review petitioners appears to be quite genuine as
the stand of Pune Municipal Corporation between the period
20.7.1999 to 21.11.2001 was different and building plans were
sanctioned without giving effect to the words “from the very said
plot” occurring towards the end of clause (b) in D.C.R.-2.4.11. A
reply affidavit has been filed by Shri Prashant Madhukar Waghmare,
City Engineer, Pune Municipal Corporation giving statement of TDR
cases wherein an excess of TDR was claimed during the period
20.7.1999 to 21.11.2001. The sanction of plan and construction
undertaken have been broadly described in 7 categories and category
nos.1 to 4 are as under : :-
S.
No.
Description
Total
Cases
Total
sanctioned
area (in sq.
meters)
Excess
TDR
utilized (in
sq. meters)
1.
Details of construction works for
which the final completion
certificate was granted after
21.11.2001, wherein the original
sanction for construction by the
Corporation was in excess of 0.4
TDR.
55
213763.89
35544.66
2.
Details of construction works for
which the part completion
certificate was granted after
21.11.2001, wherein the original
sanction for construction by the
Corporation was in excess of 0.4
TDR.
9
92287.14
20073.25
3.
Details of construction works for
which the completion certificate
was granted between 20.07.1999
to 21.11.2001, wherein the
original sanction for construction
by the Corporation was in excess
of 0.4 TDR.
14
31124.47
4676.57
4.
Details of construction works for
which no completion certificate
has been granted so far, wherein
the original sanction for
construction by the corporation
was in excess of 0.4 TDR
5
8555.62
1600.88
It will be seen that in all the above mentioned four categories
the Municipal Corporation gave sanction for construction in excess of
0.4 TDR and even completion certificates were issued for serial nos.1
to 3.
13. During the course of hearing Mr. Makarand D. Adkar, learned
Advocate for Pune Municipal Corporation, on instructions received
from the Commissioner, Pune Municipal Corporation, has made a
statement that having regard to the facts and circumstances of the
case, the respondent corporation will have no objection if the
constructions made as enumerated in category nos.1 to 4 described
above are treated to be not in violation of clause (b) of D.C.R.-2.4.11.
In the written submission filed by Mr. Vishwajit Singh, Advocate,
learned counsel for Pune Municipal Corporation, it is stated that the
Corporation does not have objection if the four categories of
construction mentioned above are given relief in view of the fact that –
a The building plans have been sanctioned by the Corporation
b In most of the cases, the completion or the part completion
certificates have been issued by the Corporation.
c In all the cases, the TDR has been loaded/utilized and
commencement certificate has been issued for the particular
projects.
d In all the cases, the construction has taken place with sanction
of Corporation.
The statement made by Mr. Makarand D. Adkar, Advocate, is
accordingly taken on record.
14. The review petitions are dismissed, recording the submission on
behalf of the Pune Municipal Corporation that the constructions
mentioned in categories 1 to 4 above will not be treated to be in
violation of clause (b) of D.C.R.-2.4.11.