{"id":102056,"date":"2011-10-12T00:00:00","date_gmt":"2011-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/girish-vyas-and-anr-vs-state-of-maharashtra-and-ors-on-12-october-2011"},"modified":"2018-04-03T05:31:17","modified_gmt":"2018-04-03T00:01:17","slug":"girish-vyas-and-anr-vs-state-of-maharashtra-and-ors-on-12-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/girish-vyas-and-anr-vs-state-of-maharashtra-and-ors-on-12-october-2011","title":{"rendered":"Girish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Girish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011<\/div>\n
Bench: R.V. Raveendran, H.L. Gokhale<\/div>\n
                                                                                  REPORTABLE\n\n\n               IN THE SUPREME COURT OF INDIA\n\n                 CIVIL APPELLATE JURISDICTION\n\n\n                  CIVIL APPEAL NOS. 198-199 OF 2000\n\n\n\n     Shri Girish Vyas & Anr.                                      ...Appellants\n\n                                     Versus\n\n     The State of Maharastra & Ors.                                   ...Respondents\n\n\n\n                                     WITH\n\n                    CIVIL APPEAL NO. 2450 OF 2000\n\n\n\n     Dr. Laxmikant Madhav Murudkar (since deceased)\n\n     Through LRs Mrs. Ranjana Laxmikant Murudkar  & Ors.    ...Appellants\n\n                                     Versus\n\n     The State of Maharastra & Ors.                                ...Respondents\n\n\n\n                                     WITH\n\n                CIVIL APPEAL NOS. 2102-2103 OF 2000\n\n\n\n     Shri Manohar Joshi                                           ...Appellants\n\n                                     Versus\n\n     The State of Maharastra & Ors.                                   ...Respondents\n\n\n\n                                     WITH\n\n                    CIVIL APPEAL NO. 2120 OF 2000\n\n\n\n     Shri Ravindra Murlidhar Mane                                 ...Appellants\n\n                                     Versus\n\n     The State of Maharastra & Ors.                               ...Respondents\n\n\n\n                                     WITH\n\n                CIVIL APPEAL NOS. 2105-2106 OF 2000\n\n\n                                              2\n\n\n\n\n\n        Shri Rama Nath Jha                                            ...Appellants\n\n                                            Versus\n\n        The State of Maharastra & Ors.                                           ...Respondents\n\n\n\n                                                   WITH \n\n                      CIVIL APPEAL NOS. 196-197 OF 2000\n\n\n\n        Maruti Raghu Sawant & Ors.                                            ...Appellants\n\n                                            Versus\n\n        The State of Maharastra & Ors.                                           ...Respondents\n\n\n\n\n\n                                 J  U  D  G  E  M  E  N  T\n\n\n\nH.L. Gokhale J.\n\n\n\n                What is the nature and significance of the planning process for a \n\n\nlarge  Municipal town area?   In that process, what is the role  of  the Municipal \n\n\nCorporation,   which   is   the   statutory   planning   authority?     Can   the   State \n\n\nGovernment  interfere  in  its decisions  in  that behalf  and  if  so, to what extent?  \n\n\nDoes the State Government have the power to issue instructions to the Municipal \n\n\nCorporation   to   act   in   a   particular   manner   contrary   to   the   Development   Plan \n\n\nsanctioned by the State Government, and that too a number of years after the \n\n\nMunicipal Corporation having taken the necessary steps in consonance with the \n\n\nplan?    Can the State Government  instruct a Municipal  Corporation  to shift  the \n\n\nreservation for a public amenity such as a primary school on a plot of land, and \n\n\nalso   instruct   it   to   grant   a   development   permission   for   residential   purposes \n\n\nthereon without modifying the Development Plan?  Could it still be considered as  \n\n\n                                                 3\n\n\nan   action   following   the   due   process   of   law   merely   because   a   provision   of \n\n\nDevelopment  Control Rules is relied  upon, whether it is applicable  or not?   Or \n\n\nwhere   the   Municipal   Corporation   is   required   to   take   such   contrary   steps, \n\n\nsupposedly on the instructions of the concerned Minister \/ Chief Minister, for the \n\n\ndevelopment of a property for the benefit of his relative, would such instructions  \n\n\namount   to   interference\/mala  fide  exercise  of  power?     Is   it   permissible   for   the \n\n\nlandowner   and   developer   to   defend   the   decision   of   the   Government   in   their \n\n\nfavour   on   the   basis   of   a   provision   in   the   erstwhile   Town   Planning   Scheme   as \n\n\nagainst the purpose for which the land is reserved under the presently prevalent  \n\n\nDevelopment Plan?  Is it permissible for the landowner and developer to explain \n\n\nand justify such a favourable Government decision by relying upon the authority \n\n\nof   the   Government   under   another   section   of   the   statute   which   is   not   even \n\n\ninvoked by the Government?  What inference is expected to be drawn in such a  \n\n\nsituation   with   respect   to   the   role   played   by   the   ministers   or   the   municipal \n\n\nofficers?  What orders are expected to be passed when such facts are brought to \n\n\nthe notice of the High Court in a Public Interest Litigation?   These are some of  \n\n\nthe   issues   which   arise   in   this   group   of   Civil   Appeals   in   the   context   of   the  \n\n\nprovisions of the Maharashtra Regional and Town Planning Act, 1966 (for short \n\n\nMRTP Act) concerning a property situated in Pune Municipal area.     \n\n\n\n2.               These   appeals   arise   out   of   two   writ   petitions   in   public   interest \n\n\nleading   to   concurrent   judgments   and   a   common   order   dated   6th  -   15th  March \n\n\n1999 passed by a Division Bench of the Bombay High Court.  These writ petitions \n\n\nbearing nos.4433 and 4434 of 1998 were filed respectively by one Vijay Krishna \n\n\n                                                 4\n\n\nKumbhar, a journalist and one Nitin Duttatraya Jagtap, a Municipal Corporator of  \n\n\nPune.  The petitions pointed out that a particular plot of land bearing Final Plot  \n\n\nNo.110   (F.P.   No.   110   for   short),   and   admeasuring   about   3450   sq.   meters, \n\n\nsituated   on   Prabhat   Road   in   the   Erandwana   area   of   the   city,   was   initially  \n\n\nreserved  for  a public  purpose  namely, a garden\/playground,  and subsequently \n\n\nfor a primary school.  They further pointed out that a number of years after the \n\n\nPune   Municipal   Corporation   (hereinafter   referred   to   as   PMC)   took   all   the \n\n\nnecessary   steps   to   acquire   this   particular   plot   of   land,   the   landowner   one   Dr.  \n\n\nLaxmikant   Madhav   Murudkar   appointed   M\/s   Vyas   Constructions,   a   proprietary \n\n\nconcern   of   one   Shri   Girish   Vyas   (the   appellant   in   Civil   Appeal   No.198-199   of \n\n\n2000) as the developer of the property.  Shri Girish Vyas is the son-in-law of Shri \n\n\nManohar Joshi who was the Chief Minister of Maharashtra from 14.03.1995 till \n\n\nJanuary 1999.   The petitioners contended that only because of the instructions \n\n\nfrom the Urban Development Department (UDD for short) which was under Shri \n\n\nManohar Joshi, that in spite of the reservation for a primary school, the plot was  \n\n\npermitted   to   be   developed   for   private   residences   flouting   all   norms   and \n\n\nmandatory  legal provisions.    They sought  to challenge  the building  permission \n\n\nwhich was issued by the PMC under the instructions of the State Government, by \n\n\nsubmitting   that   these   instructions   amounted   to   interference   into   the   lawful \n\n\nexercise   of   the   powers   of   the   Municipal   Corporation,   and   the   same   was  mala  \n\n\nfide.   After hearing all concerned, the petitions were allowed, and an order has \n\n\nbeen   passed   to   cancel   the   Commencement   (of   construction)   certificates,   and \n\n\nOccupation Certificate, and to pull down the concerned building which has been \n\n\n                                                  5\n\n\nconstructed   in   the   meanwhile.     The   State   Government   has   been   directed   to \n\n\ninitiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar \n\n\nMane,   the   then   Minister   of   State   for   UDD,   and   the   then   Pune   Municipal \n\n\nCommissioner Shri Ram Nath Jha.\n\n\n\n3.                Being aggrieved by this order, the present group of appeals have \n\n\nbeen filed:\n\n\n\n(i)       Civil   Appeal   Nos.   198-   199\/   2000  are   filed   by   the   developer   Shri   Girish \n\n\nVyas and his proprietary concern M\/s Vyas Constructions. Civil Appeal No. 2450 \n\n\nof   2000   is   filed   by   the   landowner   Dr.   Laxmikant   Madhav   Murudkar   (since \n\n\ndeceased)   to   challenge   the   judgments   and   the   order   in   their   entirety.     Their \n\n\nsubmissions by and large are similar.  \n\n\n\n(ii)      Civil Appeal Nos. 2102-2103 of 2000 are filed by Shri Manohar Joshi, the \n\n\nthen Chief Minister, Civil Appeal Nos. 2105-2106 of 2000 are filed by Shri Ram \n\n\nNath Jha who was the then Pune Municipal Commissioner, and Civil Appeal No. \n\n\n2120 of 2000 is filed by Shri Ravindra Murlidhar Mane, the then Minister of State, \n\n\nUDD.     These   appeals   seek   to   expunge   the   adverse   remarks   against   the \n\n\nappellants, and the order directing criminal investigation against them.  \n\n\n\n(iii)     Civil Appeal Nos. 196-197 of 2000 are filed by Maruti Raghu Sawant and \n\n\nothers who were the tenants in this property.  They contend that in the scheme \n\n\nprepared   by   the   developer,   they   were   to   become   owners   of   their   tenements \n\n\nwhereas under the original reservation, they were to be evicted.  \n\n\n                                               6\n\n\n                We   may   note   at   this   stage   that   though   the   PMC   accepts   the \n\n\njudgment, it has no objection to the tenants continuing as tenants of PMC in the  \n\n\nbuilding which is constructed for accommodating them on a portion of the very \n\n\nplot of land.  The tenants, however, contend that if the plot of land is taken over  \n\n\nby  PMC,  they  will   remain  mere   tenants  as  against   the  ownership   rights  which \n\n\nwere   assured   to   them   by   the   developer   and   the   landlord,   and   are,   therefore, \n\n\ncontinuing to maintain their appeals.\n\n\n\n4.              All   these   appeals   are   opposed   and   the   impugned   judgment   and \n\n\norder  are   defended  by   the  original   petitioners  as  well  as  by  the  PMC   and  the \n\n\nState Government.  It is relevant to note that the State of Maharashtra as well as \n\n\nPMC had opposed the writ petitions in the High Court, but they have not filed  \n\n\nany appeals and have now accepted the judgment and order as it is.  Since, all \n\n\nthese appeals are arising out of the same judgment and order, they have been \n\n\nheard and are being decided together, by treating the appeals filed by Shri Girish \n\n\nVyas as the lead appeals.\n\n\n\n        Facts leading to these appeals\n\n        Reservation on F.P. No. 110 for a garden\n\n\n5.              Dr. Laxmikant Madhav Murudkar (since deceased), appellant in Civil \n\n\nAppeal   No.   2450   of   2000   (hereinafter   referred   to   as   landowner)   owned   the \n\n\nproperty  bearing  F.P.  No. 110.   The Government of  Maharashtra sanctioned  a \n\n\nDevelopment Plan for Pune City by publishing a notification dated 7.7.1966 in the \n\n\nofficial gazette dated 8.7.1966, which fixed 15.8.1966 as the date on which the  \n\n\nsaid plan shall come into force.  (The said plan is hereinafter referred to as 1966 \n\n\n                                                7\n\n\nD.P. Plan).  Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a \n\n\ngarden.     The   Plan   was   sanctioned   in   exercise   of   the   power   of   the   State \n\n\nGovernment under Section 10 of the then prevalent Bombay Town Planning Act \n\n\n1954 (1954 Act for short).  This notification stated that the PMC had passed the  \n\n\nnecessary resolution of its intention to prepare a Development Plan, carried out \n\n\nthe necessary survey, considered the suggestions received from the members of \n\n\nthe   pubic   under   Section   9   of   the   Act,   and   after   modifying   the   Plan   wherever  \n\n\nfound   necessary,   submitted   it   to   the   Government,   and   thereafter   the \n\n\nGovernment having consulted the Director of Town Planning, had in exercise of  \n\n\nits power under Section 10 (1) and (2) of the Act, sanctioned the Development \n\n\nPlan.\n\n\n\n6.               Subsequently,   the   1954   Act   was   repealed   and   replaced   by   the \n\n\nMRTP Act with effect from 11.01.1967.  However, by virtue of Section 165 (2) of \n\n\nMRTP Act, the 1966 D.P. Plan was saved.   Consequently, when the landowner  \n\n\napplied  for the sanction of a layout in F.P. No.110, the same was rejected  by  \n\n\nPMC.  Therefore, the landowner served on the State Government a notice dated \n\n\n8th May 1979 under Section 49 (1) of the MRTP Act, calling upon it to purchase  \n\n\nthe land and to \"commence the proceedings for acquisition\".  The notice stated  \n\n\nthat the F.P. No.110 was not acquired within the period of 10 years granted to \n\n\nthe Planning Authority to implement the D.P. (for the Pune Municipal area, PMC \n\n\nis the Planning Authority).   It further stated that as per his understanding, the \n\n\nD.P. was under revision but the reservation on petitioner's F.P. No.110 had not  \n\n\nbeen changed, and `the reservation will never be cancelled and the final plot will  \n\n\n                                                 8\n\n\nnever be handed back' to him.   The State Government confirmed the purchase  \n\n\nnotice   under   Section   49   (4)   of   the   Act   by   its   letter   dated   5.12.1979.     The \n\n\nGovernment's   letter   informed   the   landowner   that   necessary   instructions   have \n\n\nbeen issued to the PMC, and he may approach their office.\n\n\n\n        Steps for acquisition of F.P. No. 110\n\n\n\n7.               The standing committee of the PMC thereafter passed a resolution \n\n\non 5.1.1980 to initiate the proposal for acquisition.  The PMC then forwarded the \n\n\nproposal to the Collector of Pune on 9.5.1980 to take the steps for acquisition. \n\n\nOn   27.8.1981,   the   State   Government   notified   the   land   for   acquisition   under \n\n\nSection   126   of   the   MRTP   Act   read   with   Section   6   of   the   Land   Acquisition   Act \n\n\n1894 (for short L.A. Act).  A Special Land Acquisition Officer (S.L.A.O. for short)  \n\n\nwas appointed to perform the functions of the Collector.  A notice informing the \n\n\ninitiation   of   the   proceedings   under   the   L.A.   Act   as   required   under   Section   9  \n\n\nthereof   was   issued   on   8.9.1981   seeking   claims   for   compensation.     The \n\n\nlandowner replied to the notice, but did not challenge the acquisition.   He filed \n\n\nhis   claim   statement   during   the   acquisition   proceeding,   and   demanded   the \n\n\ncompensation   at   the   rate   of   Rs.   480   per   sq.m,   and   also   that   the   material  \n\n\nremoved   after   demolition   of   the   temporary   structures   (of   the   tenants)   on   the \n\n\nproperty   should   be   given   to   him.     Twenty   four   tenants   filed   a   common   claim \n\n\nstatement and objected to the acquisition, but did not seek any compensation. \n\n\nThey specifically stated that `there will not be any objection if they are provided \n\n\nwith   alternative   accommodation   on   the   land   to   be   acquired'.     The   S.L.A.O. \n\n\npassed his award under Section 11 of the L.A. Act on 12.5.1983.  He rejected the \n\n\n                                                 9\n\n\nobjections of the tenants, and awarded the compensation of Rs. 100 to each of  \n\n\nthe 25 tenants.   He determined the compensation payable to the landowner at \n\n\nRs.   6,10,823\/-.       On   15.3.1985   the   landowner   withdrew   the   amount   of \n\n\ncompensation by furnishing necessary security, though under protest.  \n\n\n\n8.               After the Award was made by the S.L.A.O. on 12.5.1983 as stated \n\n\nearlier,   a   notice   under   Section   12   (2)   of   the   L.A.   Act   was   given,   to   take  \n\n\npossession   of   the   land   on   20.5.1983.     Once   again,   only   the   tenants   objected  \n\n\nthereto.     They   filed   a   suit   on   19.5.1983   in   the   Court   of   Civil   Judge,   Senior \n\n\nDivision, Pune, bearing Suit No. 966 of 1983, to challenge the acquisition and the \n\n\nAward.     The   landowner   was   joined   therein   as   defendant   No.   3.     The   Court \n\n\ngranted   an   interim   injunction   on   19.6.1983,   restraining   the   authorities   from \n\n\ntaking possession.  However, after hearing the parties, an order was passed on \n\n\n9.2.1984 vacating the injunction, and returning the plaint for failure to give the  \n\n\nmandatory notice required under Section 80 of the Code of Civil Procedure.  The \n\n\ntenants filed an appeal to the District Court against that order, but the same was \n\n\nalso   dismissed.     Thereafter,   the   tenants   made   a   representation   to   the   then \n\n\nMinister of State for UDD, pointing out their difficulties, which persuaded him to  \n\n\npass   an   administrative   order   restraining   the   authorities   concerned   from   taking \n\n\npossession of F.P. No. 110.  \n\n\n\n9.               It   is   pertinent   to   note   that   all   along,   the   landowner   did   not \n\n\nchallenge  the  acquisition  of  his  land  in  any  manner  whatsoever.  On  the other  \n\n\nhand, he sought a Reference under Section 18 of the L.A. Act for enhancement \n\n\nof   the   compensation.   The   District   Court   dismissed   that   Reference   bearing   No.  \n\n\n                                                  10\n\n\n273 of 1983 by order dated 15.4.1988, but enhanced the solatium and additional \n\n\namount payable under Section 23(2) and 23(1A) of the L.A. Act.   The amount  \n\n\npayable  under the order  of  the District  Court  was collected  by the landowner,  \n\n\nthough under protest, but he did not prefer the appeal permissible under Section \n\n\n54 of the L.A. Act.\n\n\n\n        Revision   of   the   D.P.   Plan   for   Pune   under   the   MRTP   Act   and \n\n        change of utilisation of F.P. No. 110 to a Primary school\n\n\n\n10.              In the meanwhile, the process of revising the Development Plan of \n\n\nPune   city   under   the   provisions   of   MRTP   Act   was   going   on.     The   PMC   as   the \n\n\nplanning authority had passed a resolution on 15.3.1976 declaring its intention to \n\n\nprepare a Revised Development Plan under Section 23 (1) read with Section 38 \n\n\nof the MRTP Act. The State Government appointed the Director of Town Planning \n\n\nto   be   the   Special   Officer   for   that   purpose   under   Section   162   (1)   of   that   Act.  \n\n\nAfter observing all the legal formalities, the said Director published in the official  \n\n\ngazette on 18.9.1982 the Revised Draft Development Plan under Section 26 (1) \n\n\nof the Act.   In that plan F.P. No. 110-112 were initially reserved for children's  \n\n\nplay-ground,  but subsequently the reservation was changed to primary school.  \n\n\nAfter   inviting   the   objections   and   suggestions,   and   after   considering   them,   the \n\n\nState Government sanctioned the Revised D.P. Plan on 5.1.1987 (though with a \n\n\nfew   modifications),   to   be   effective   from   1.1.1987   (hereafter   referred   as   1987 \n\n\nD.P. Plan for short) as also the Development Control Rules (D.C. Rules for short). \n\n\nIn   the   sanctioned   D.P.   Plan   of   1987,   the   purpose   of   utilization   of   these   three \n\n\nplots was, as stated above changed to primary school.  \n\n\n                                              11\n\n\n        The modification with respect to these three plots was as follows:- \n\n\n                \"Reservation continued.  Development allowed as per note 4\".  \n\n                Note 4 reads as follows:-\n\n\n                        \"Sites designated for Primary Schools from Sector I  \n                to   VI   as   may   be   decided   by   the   Pune   Municipal  \n                Corporation   may   be   allowed   to   be   developed   by  \n                recognized   public   institutions   registered   under   Public  \n                Charitable Trust Act, working in that field or the owners of  \n                the land.\"\n\n\nThus by virtue of this note, the purpose could also be effectuated either by the \n\n\nowner of the land, or by a recognized charitable institution.\n\n\n\n11.             It is relevant to note at this stage that a school for the handicapped \n\n\nchildren has come up in the adjoining F.P. No. 111.   Besides, a primary school \n\n\nwas   set   up   by   Symbiosis   International   Cultural   and   Educational   Centre \n\n\n(`Symbiosis' for short) on F.P. No. 112.   It is stated that Symbiosis and another \n\n\neducational   institution   viz.   Maharashtra   Education   Society   (MES)   had   sought \n\n\nthese  plots   since  they  were  in  need   of  land   for   extension  of   their   educational \n\n\nactivities.     The   then   Chief   Minister   of   Maharashtra   had   recommended   the  \n\n\nproposal of MES by his letter dated 9.4.1986, and the society had applied to the \n\n\nthen Commissioner of Pune by its letter dated 29.4.1986.   That was, however,  \n\n\nwithout any effect.\n\n\n\n12.             The   S.L.A.O.   gave   one   more   notice   to   take   possession   of   F.P.  \n\n\nNo.110 on 1.3.1988.  It led to the filing of Regular  Civil Suit bearing No. 397 of \n\n\n1988  by some of the tenants in the Court of Civil Judge, Senior Division, Pune \n\n\nagainst the State Government and PMC, once again challenging the award of the \n\n\n                                                12\n\n\nS.L.A.O.,   and   seeking   an   injunction   to   protect   their   possession.     The   Court \n\n\ngranted  the interim injunction  as sought.   Thereafter  the landowner,  who was  \n\n\none of the defendants in the suit, applied for transposing himself as a plaintiff,  \n\n\nwhich prayer was allowed on 2.4.1988.   The Court accepted the contention  of \n\n\nthe   tenants   that   the   acquisition   had   lapsed   due   to   the   change   of   purpose   of \n\n\nreservation from what it was in 1966 viz. a garden by the time the award was \n\n\nmade, and, therefore, decreed the suit by its order dated 23.4.1990.  \n\n\n\n13.             The PMC preferred a first appeal against that decree to the Bombay \n\n\nHigh Court on 7.1.1991, but the Additional Registrar of the High Court returned \n\n\nthe appeal by his order dated 21.4.1992 for presentation to the District Court on \n\n\nthe basis of the valuation of the suit, and the provision for jurisdiction as it then  \n\n\nexisted.     Accordingly,   the   PMC   filed   the   appeal   before   the   District   Court \n\n\nimmediately on 29.4.1992, but the District Court in turn, by its order passed two  \n\n\nyears   later   on   7.4.1994   returned   the   appeal   for   re-presenting   it   to   the   High  \n\n\nCourt, on the ground that the suit was valued above Rs. 50,000\/- and as per the \n\n\nrules then existing the appeal would lie to the High Court.  PMC once again filed  \n\n\nthe appeal in the High Court being F.A (Stamp) No. 18615 of 1994 on 18.7.1994, \n\n\nalongwith   an   Application   for   condonation   of   delay   for   the   reasons   as   stated \n\n\nabove.   This Appeal remained pending till it was withdrawn on the direction of \n\n\nthe State Government on 18.8.1998, in the circumstances which will be presently  \n\n\npointed out.  It is, however, relevant to note that this appeal was withdrawn at a \n\n\npoint of time when the two public interest petitions were filed on 12.8.1998, and \n\n\nwere pending in the High Court.   The impugned order of the Division Bench on \n\n\n                                               13\n\n\nthese   petitions   has   directed   the   PMC   to   move   an   Application   before   the   High \n\n\nCourt   for   reviving   the   First   Appeal   (Stamp   No.18615   of   1994),   and   pursuant \n\n\nthereto the PMC has already moved the necessary Application on 13.1.2000.  Be \n\n\nthat as it may.\n\n\n\n        Steps taken by the landowner after Shri Manohar Joshi \n\n        took over as the Chief Minister of Maharashtra\n\n\n\n14.             It is material to note that after the decision of the Reference Court, \n\n\nthe landowner entered into an agreement of sale of the concerned land with one \n\n\nShri Mukesh Jain on 17.8.1989, though no steps were taken thereafter by either \n\n\nof the parties on the basis of that agreement.  It so happened that consequent \n\n\nupon the elections to the State Assembly, a new Government came in power in \n\n\nthe State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the \n\n\nChief Minister (hereinafter referred as the then Chief Minister).  He retained with \n\n\nhimself the UDD portfolio.  The earlier referred Shri Ravindra Mane became the \n\n\nMinister of State for UDD (hereinafter referred to as the then Minister of State).  \n\n\nOn 20.10.1995 the landowner entered into a Development agreement with M\/s \n\n\nVyas Constructions  by virtue  of which  the landowner  handed over all rights  of \n\n\ndevelopment in the property to them for a consideration of Rs. 1.25 crores, a flat \n\n\nof 1500 sq. feet area and an office space of 500 sq. feet in the building to be \n\n\ndeveloped on F.P. No. 110.  The agreement stated that it was being entered into \n\n\nto solve the practical difficulties. Para 7 thereof stated that the developer shall  \n\n\nfollow the procedure or process of de-reservation of the said property. Para 20 \n\n\nand 21 stated that `after de-reservation of the property, the developer agrees to \n\n\n                                                14\n\n\nget the clearance under the Urban Land (Ceiling and Regulation) Act 1976 which \n\n\nmay be necessary,' and for that purpose he was authorised to get any scheme \n\n\nsanctioned. M\/s Vyas Constructions is stated to have settled the claim of above  \n\n\nreferred   Shri   Mukesh   Jain.     On   the   same   day,   the   landowner   executed   an \n\n\nirrevocable Power of Attorney in favour of Shri Girish Vyas for the development \n\n\nof  F.P No. 110. (He is referred  hereinafter  as the developer).    The  landowner  \n\n\nsimultaneously executed another Power of Attorney in favour of one Shri Shriram \n\n\nKarandikar  on 26.10.1995, authorising  him to take necessary steps concerning \n\n\nthe development of that land.  \n\n\n\n15.             Thereafter, on 1.11.1995 the architect of the landowner submitted \n\n\nto PMC a building layout for permission for residential use of F.P. No. 110.  The \n\n\nCity Engineer of PMC rejected the proposal by his reply dated 6.11.1995 under \n\n\nSection   45   of   the   MRTP   Act   read   with   Section   255   of   the   Bombay   Provincial  \n\n\nMunicipal Corporations Act 1949 (BPMC Act for short) and D.C. Rule No. 6.7.1, \n\n\nsince   the   plot   had   been   reserved   for   a   primary   school,   and   hence   such   a \n\n\npermission could not be granted.  It was however pointed out in this reply of the  \n\n\nCity Engineer that the development of the land was permissible in the manner \n\n\nindicated in the note No.4 published in the gazette which has been referred to \n\n\nhereinabove  (i.e. putting up a primary school either by the landowner or by a \n\n\ncharitable trust).\n\n\n\n16.             At this stage, landowner's Attorney holder, Shri Shriram Karandikar \n\n\nwrote to the Minister of State for UDD on 20.11.1995 seeking a direction to the  \n\n\nMunicipal   Commissioner   to   sanction   landowner's   aforesaid   application   dated \n\n\n                                               15\n\n\n1.11.1995 for development of the property for residential houses.   He relied on \n\n\nthe decree of Civil Judge Senior Division in Civil Suit No.399 of 1998 and prayed  \n\n\nfor correcting the Development Plan also.  From here onwards starts the role of \n\n\nthe   then   Minister   of   State,   the   Municipal   Commissioner,   and   the   then   Chief  \n\n\nMinister.\n\n\n\n          Processing of the application dated 20.11.1995 on behalf of the \n\n             landowner at the level of the State Government\n\n\n\n17.              In their petitions to the High Court, the writ petitioners made the \n\n\nallegation of mala fides on the part of the then Chief Minister and the Minister of \n\n\nState for UDD in entertaining the application made on behalf of the landowner.  \n\n\nIt, therefore, became necessary for the Division Bench of the High Court to call \n\n\nfor the original record from the State Government as well as from the PMC.  The \n\n\napplication dated 20.11.1995 made by Shri Karandikar on behalf of the landlord \n\n\nnarrated   the   developments   until   the   date   of   that   application   including   the \n\n\njudgment   and   decree   of   the   Civil   Court   setting   aside   the   acquisition   of   the \n\n\nproperty.     It   was,   thereafter,   submitted   that   the   Municipal   Commissioner   be \n\n\ndirected  to   sanction  the   development   permission  as  per   the  application   of  the \n\n\narchitect of the landowner.  It is relevant to note that as far as this application of  \n\n\nShri Karandikar is concerned, it was not addressed to the State Government or to \n\n\nthe Secretary of the concerned Department, but directly to the Minister of State  \n\n\nfor   UDD,   which   fact   is   noted   by   the   Division   Bench   in   its   judgment.     The \n\n\napplication   did   not   bear   any   inward   stamp   of   UDD.     In   the   margin   of   the \n\n\napplication, there was a noting by the Private Secretary of the Minister of State  \n\n\n                                                    16\n\n\nfor UDD, recording that the Minister had directed the Deputy Secretary, UDD, to \n\n\ncall a meeting on 19.1.1996.  The record further shows that although the Under \n\n\nSecretary   of   UDD   Shri   P.V.   Ghadge   accordingly   called   the   initial   meeting,   by \n\n\naddressing   a   letter   to   the   Director,   Town   Planning   and   the   Municipal \n\n\nCommissioner, the same was adjourned to 22.1.1996.  On that date, the meeting \n\n\nwas   attended   by   the   Director   of   Town   Planning,   the   Deputy   City   Engineer   of \n\n\nPMC, Deputy Director of Town Planning, Pune, as well as by Shri Karandikar and \n\n\nhis advocate, but what happened in that meeting is not reflected in this file.\n\n\n\n        Initial Stand of Urban Development Department and PMC \n\n\n\n18.                The   Under   Secretary   (Shri   P.V.   Ghadge)   prepared   a   preliminary \n\n\nnote   dated   2.2.1996   for   the   subsequent   meeting.   At   the   outset,   the   note \n\n\nmentions   in   a   nutshell   the   background   for   the   meeting   which   was   sought   on \n\n\nbehalf   of   the   landlord.     Thereafter   it   gives   the   initial   opinion   of   the   U.D.  \n\n\nDepartment at the end of the note, which is as follows:- \n\n\n                   \"In   this   regard   it   is   the   advice   of   the   department   that,  \n        acquisition   has   been   done   after   taking   action   on   the   purchase  \n        notice.   The compensation amount has been accepted.   Even if  \n        the   reservation   of   the   plot   is   changed,   it   does   not   make   any  \n        difference.  Directions be given to the Pune Municipal Corporation  \n        to   immediately   present   this   matter   in   the   Bombay   High   Court.  \n        The  question   of  returning   the  plot   to  the   land  owner   does   not  \n        arise.\"\n\n\n\n19.                On the background of this departmental note containing its advice, \n\n\na meeting was held on 3.2.1996 presided over by the Minister of State for UDD, \n\n\nand the minutes of the meeting are part of the record placed before the High  \n\n\nCourt.   Apart from Shri Karandikar and his advocate, high ranking officers such \n\n\n                                                17\n\n\nas (i) Secretary, UDD, (ii) Director, Town Planning, (iii) Commissioner, PMC, (iv) \n\n\nCity Engineer, PMC and (v) Under Secretary, UDD were present in the meeting.  \n\n\nThe minutes of the meeting are recorded by the Under Secretary.  \n\n\n\n20.             These   minutes   record   that   in   this   meeting   the   advocate   of   the \n\n\napplicant  explained  the  facts leading  to  his client's  application,  justifying  as to \n\n\nwhy   the   reservation   on   the   land   may   be   deleted.     He   referred   to   the   Court  \n\n\nproceedings, the fact that 25-30 tenants were residing on the property for many \n\n\nyears, and that on the adjoining property a school was running.   He therefore  \n\n\nsubmitted that the reservation on the land be deleted.  \n\n\n\n21.             The note records a preliminary query raised by the Secretary, UDD \n\n\nas   to   whether   the   advocate   was   pleading   on   behalf   of   the   tenants   or   the \n\n\nlandowner,   to   which   the   Advocate   replied   that   he   was   pleading   for   the \n\n\nlandowner.  The Secretary, UDD raised two more queries viz. (i) if the land was  \n\n\nnot useful for reservation because of the tenants, then how will it be available to \n\n\nthe   landowner,   and   (ii)   whether   the   landowner   had   ever   objected   to   this \n\n\nreservation, to which the advocate replied in the negative.\n\n\n\n22.             The   City   Engineer,   PMC   pointed   out   during   the   meeting   that \n\n\nconsequent upon the property owner issuing the purchase notice, the PMC had \n\n\nacquired the land, the award was made, the property owner had accepted the  \n\n\ncompensation, and that he never objected to the change in reservation due to \n\n\nthe  revision  of  the  D.P.  Plan  during  the  entire  period  of  revision  i.e.  1982-87. \n\n\nWith  respect  to the proceedings initiated  by the tenants, he pointed  that PMC  \n\n\n                                              18\n\n\nhad filed an Appeal in the Bombay High Court against the judgment of the Civil \n\n\nCourt, and the matter was sub-judice.  He specifically asked whether the hearing \n\n\ngiven to the applicant was on an appeal under Section 47 of the MRTP Act, or  \n\n\nwas   it   on   his   application.     He   pointed   out   that   the   property   was   under  \n\n\nreservation, and it could not be de-reserved in an appeal under Section 47.   It \n\n\nrequired an action in the nature of modification under Section 37 of the MRTP \n\n\nAct.  If it was an appeal, then it may be rejected, and if it was an application for  \n\n\nmodification then a decision cannot be taken as the matter was sub-judice.  On  \n\n\nthese queries it was stated on behalf of the landowner that his application was a  \n\n\nrequest and not an appeal.\n\n\n\n        Directions by Minister of State and report made by the Municipal \n\n        Commissioner in pursuance thereof\n\n\n23.             It was thereafter pointed out on behalf of landowner  that on the \n\n\nadjoining two plots, schools had been developed, and the Corporation may not \n\n\nneed this land.  The note records that in view of this submission, the Minister of \n\n\nState,   UDD   asked   the   Municipal   Commissioner   to   examine   whether   the   PMC \n\n\nreally needed the concerned property.  He also suggested that it be examined, if \n\n\nPMC   can   keep   some   portion   of   the   land   under   reservation,   and   release   the \n\n\nremaining to the landowner.  If such a compromise is to be arrived at, then the  \n\n\nproperty owner will have to accommodate the tenants on a portion of property  \n\n\nreleased to him.   If PMC did not have any objection to reduce the area under \n\n\nreservation, Government will issue the necessary direction to take action under \n\n\nSection   37.    The   note   records  at   that   stage,   that   the  Municipal  Commissioner \n\n\npointed   out   that   the   permission   of   the   Municipal   Corporation   (meaning   the  \n\n\n                                               19\n\n\ngeneral body) was necessary to either delete the reservation, or to reduce the \n\n\narea under reservation.  \n\n\n\n24.             The file  shows that accordingly  the Under  Secretary wrote to the \n\n\nMunicipal Commissioner on 14.2.1996 requesting him to examine the possibility \n\n\nregarding any settlement after a site inspection, and to forward his opinion.  He \n\n\nwas also asked to inform as to when had the PMC filed its appeal in the Bombay \n\n\nHigh Court, and about its status.  \n\n\n\n25.             The file shows that at this stage, the landowner changed his stand. \n\n\nShri Karandikar wrote another letter dated 23.3.1996 to the Minister of State that  \n\n\nhis application be treated as an appeal under Section 47 of the MRTP Act.\n\n\n\n26.             The   Municipal   Commissioner   replied   Government's   letter   dated \n\n\n14.2.1996 by his letter dated 17.4.1996.   He pointed out that the development \n\n\npermission for this particular plot had been rejected because the property was \n\n\nunder   reservation.   Then   he   reiterated   the   position   of   PMC   as   stated   in   the \n\n\nmeeting of 3.2.1996.  Then he added - \n\n\n                \"On 3.2.1996 we took the same stand which was taken by  \n        us in various counts and administrative levels regarding dispute  \n        for   the   development   of   property,   and   that   if   any   change   is  \n        proposed in the use of the said property, permission has to be  \n        taken from the Pune Municipal Corporation.  The Hon'ble Minister  \n        of State for urban development ordered us to survey the subject  \n        property and also ordered to explore the options of changing or  \n        reducing the area of the reservation.\"  \n\n\n\n27.             The   Municipal   Commissioner   then   stated   that   before   considering \n\n\nthe   various   options  as  directed  by  the  State   Government,  it  was  necessary  to  \n\n\n                                                20\n\n\nnote the background of the subject property; viz. that as per the 1966 D.P. Plan,  \n\n\nit was reserved for a garden, and subsequently the reservation was changed to a \n\n\nPrimary School in the draft D.P. Plan of 1982 confirmed in 1987.  He referred to \n\n\nthe litigation initiated by the tenants, the fact that the PMC had filed an appeal to  \n\n\nthe High Court against the decision in the Civil Suit No. 397\/1988, and that the \n\n\nHigh Court sent back the matter to the District Court and it was pending there.  \n\n\nHe placed on record the fact that though full price of the land was paid to the  \n\n\nowner, procedure of taking actual possession by the PMC was still pending for \n\n\nlast 13 years, because of which it was not possible to make appropriate use of \n\n\nthe  land.    The  Minister  had asked  him to  survey the  subject  property,  and  to \n\n\nexplore   the   possibility   of   changing   or   reducing   the   area   of   reservation.     The \n\n\ncommissioner pointed  out that a survey was carried  accordingly.    He recorded \n\n\nthat on inspection following facts were mainly noted:-\n\n\n                \"1.      There are about 36 temporary Houses on the land.\n                2.       Out of the total area nearly half is encumbered.\n        3.      Two   Educational   Institutions   in   the   vicinity   of   the  \n                         School.\n                4.       There are 11 Educational Institutions in the vicinity  \n                         of the School.\n                5.       Except the temporary Houses on this property the  \n                         development of the area is planned and corporation \n                         has control over it.\"\n\n\n\nThe   Commissioner   however,   did   not   specify   as   to   which   area   of   the   city   was \n\n\nconsidered by him when he spoke about `vicinity' in item No. 4 above.\n\n\n\n28.             The land was to be developed either by PMC or the owner or by a \n\n\nCharitable   Trust   as   per   the   D.P.   Note   4   referred   to   above.     The   Municipal \n\n\nCommissioner   then  gave  his  opinion  that  development   of  a  primary   school on \n\n\n                                               21\n\n\nthat plot by a charitable  institution appeared  impossible  due to various factors  \n\n\nsuch   as   the   order   of   the   Civil   Court,   litigation   concerning   this   plot,   the \n\n\nrequirement of rehabilitation of the tenants on that plot, and existence of near-\n\n\nby schools.  Besides, the area being a higher middle class area, the response to \n\n\na municipal school was doubtful.    He then added  as follows - `considering  the  \n\n\nfunds   available,   the   PMC   is   inclined   to   develop   school   on   some   other   plot \n\n\nreserved   for   school'.     As   we   have   noted   earlier   two   well-known   educational \n\n\ninstitutions, viz. MES and Symbiosis had already sought this plot also. The PMC \n\n\nhad however replied to them that it was not possible for it to give them this plot,  \n\n\nsince it was not in the possession of PMC.  The Municipal Commissioner failed to \n\n\nbring these very relevant facts to the notice of the Government.  Having noticed  \n\n\nthese facts, the Division Bench has observed in para 143 of its judgment that the  \n\n\nCommissioner's statement in this behalf in his report was \"far from truth\".  \n\n\n\n29.             The   Commissioner   then   recorded   that   in   view   of   the   direction   of \n\n\nthe   State   Government   to   suggest   alternatives   for   settlement,   he   had   in   the \n\n\nmeanwhile, held discussions with Shri Karandikar, and that Shri Karandikar had  \n\n\nexpressed readiness to give alternate unencumbered land within suburbs of Pune \n\n\nadmeasuring 5000 to 10000 sq. feet free of cost.       Thereafter, in view of the \n\n\ndirection   of   the   State   Government   and   proposals   from   Shri   Karandikar,   the  \n\n\nCommissioner recorded two suggestions:-\n\n\n\n                \"1.     Presently reserved area is about 3541 sq.mtrs out of  \n       which nearly 50% area is occupied by occupants and remaining  \n       area is open.   The land owner after excluding the area occupied  \n       by the existing houses, to transfer the remaining area to the Pune  \n       Municipal Corporation for school.  However, since the land owner  \n\n\n                                               22\n\n\n       has accepted compensation for the entire area, for the area to be  \n       transferred, he should refund the amount to the Pune Municipal  \n       Corporation   at   the   rate   suggested   by   the   Director   of   Town  \n       Planning.\n\n\n       2.      To   get   transferred   land   admeasuring   3000   sq.mtrs  \n       elsewhere   at   a   convenient   place   in   Pune   City   with   school  \n       admeasuring 500 sq.mtrs constructed thereon free of cost as per  \n       specifications   of   the   Pune   Municipal   Corporation,   and   for   that  \n       purpose it is necessary to get executed a proper agreement.  But  \n       land   to   be   given   elsewhere   should   not   be   reserved   in  \n       development plan for school or some other purpose.\"\n\n\n       Thereafter his letter stated as follow:-\n\n\n               \"If first proposal is to be accepted for developing school on  \n       remaining area question regarding decision of Civil Judge, Senior  \n       Division would arise.   In this situation it is necessary to have the  \n       support   of   the   land   owner   and   tenants   for   this   proposal.     For  \n       implementing   both   the   aforesaid   proposals   suggested   by   us   it  \n       would be appropriate if the following things are complied with:-\n\n\n       1.      The   Pune   Municipal   Corporation   administration   to   take  \n       permission from the Pune Municipal Corporation before releasing  \n       rights in respect of the subject property.\n\n\n       2.      For   deleting   reservation   on   the   property   taking   action  \n       under Section 37 of M.R.T.P.\n\n\n       3.      For acquiring new site as per Proposal No.2 permission of  \n       concerned   Departments   of   the   Pune   Municipal   Corporation   will  \n       have to be taken.\n\n\nThen the Commissioner added:-\n\n\n       Prior  to this since no such  settlement matters  have taken  place  \n       regarding   the   development   plan   of   Pune   Municipal   Corporation,  \n       the   experience   of   Pune   Municipal   Corporation   in   this   regard   is  \n       limited.  Till the next order is received from the State Government  \n       the   Pune   Municipal   Corporation   is   continuing   the   judicial  \n       procedure in respect of this land.\"\n\n\n\n30.            After the receipt of the letter dated 17.4.1996 from the Municipal \n\n\nCommissioner, the file shows the following noting dated 24.4.1996:-\n\n\n               \"                Mantralaya, Bombay 400 032\n\n\n                                                 23\n\n\n                                  Date 24\/4\/1996\n\n\n                According to the instructions of Shri Chavan, Private Secretary  \n        of the Hon'ble Chief Minister, please forward a copy of the report of  \n        the Pune Municipal Corporation in the matter of Shri Karandikar for  \n        the perusal of the Hon'ble Chief Minister.\n\n\n        Shri Ghadesaheb                                              Sd\/-\n        Under Secretary                                     Private Secretary\n        N.V.                                                Minister of State for Finance,\n                                                            Planning and Urban Development\n\n\n                                                            Government of Maharashtra\"\n\n\n\n31.             On   receiving   the   above   reply   dated   17.4.1996   from   Municipal \n\n\nCommissioner, Shri Ghadge, the Under Secretary once again put up a detailed \n\n\nnote   thereon.     In   first   8   paragraphs   of   that   note   he   recorded   the   previous  \n\n\ndevelopments, including and upto the letter sent by the Municipal Commissioner. \n\n\nThereafter in paragraph 9, 10 and 11 he put up the proposal of the department:-\n\n\n                \"9.      Considering the entire aforesaid circumstances, it is  \n        firstly pointed out that applicant Shri Karandikar has approached  \n        the Government on behalf of the land owner but the land owner  \n        has already taken the price of the said property in the year 1983.  \n        Though   the   physical   possession   of   the   said   property   is   not  \n        received   to   the   Municipal   Corporation   still   however,   legally  \n        Municipal   Corporation   has   become   owner   of   the   said   property.  \n        Therefore, the Land Owner does not have any right to demand  \n        return   of   the   said   property   by   deleting   reservation.     Now  \n        considering   the   tenants,   they   have   approached   the   Court   and  \n        therefore,   it   is   not   necessary   to   consider   that   aspect   till   the  \n        matter   is   decided   by   the   Court.     If   the   said   matter   is   decided  \n        against the Municipal Corporation  still the said persons shall be  \n        tenants  and the land owner shall be Municipal  Corporation  and  \n        further that the tenants have requested for allotment of the land  \n        for developing it.\n\n\n                10.      Still however considering the fact that no way out  \n        will be available if the matter is kept pending as it is, and further  \n        considering that there are numerous schools in the vicinity of the  \n        said   property,   there   should   be   no   objection   to   consider   and  \n        approve on government level the alternative No.1 suggested by  \n\n\n                                                  24\n\n\n        the Municipal Commissioner. However, for the said purpose the  \n        tenants will  have to withdraw their proceedings  from the Court  \n        and they will have to pay to the Municipal Corporation the cost  \n        price of the 50% portion to be released for the said tenants as  \n        may be determined by the Director, Town Planning.   If the said  \n        alternative  is acceptable  to the land owner, the Pune Municipal  \n        Corporation be informed about the orders of the Government to  \n        initiate proceedings u\/s 37 for the purposes of deletion  of 50%  \n        property from reservation and to forward the said proposal to the  \n        Government.\n\n\n                 11.      Second   alternative   does   not   deserve   any  \n        consideration   since   for   shifting   the   reservation   the   alternative  \n        property should have the same area like that of the original one  \n        and   that   it   is   necessary   that   such   property   should   be   in   the  \n        vicinity   of   approximately   200   mtrs.   from   the   property   under  \n        reservation.  So also the matters like approach road and level of  \n        the land are also required to be similar.   (MARGINAL REMARK -  \n        Rule No.13.5 of Pune Development Control Rules). \n\n\n                 12.      Proposal in paragraph 10 submitted for approval.\"\n\n\n                 The note was countersigned by Shri Deshpande, Deputy Secretary, \n\n\nTown Planning  on 4.6.1996, and by the Senior Chief Secretary  (NV i.e.  Nagar  \n\n\nVikas     or Urban Development).   Thus the Urban Development Department did \n\n\nnot  accept  the  second  proposal  of  the Municipal  Commissioner  to  remove  the \n\n\nreservation on the plot in its entirety, but recommended the acceptance of the  \n\n\nfirst   proposal   to   reduce   the   reservation   on   the   plot   to   50%   of   its   area.     The \n\n\nMinister   for   State   however   did   not   sign   the   note   and   he   ordered   a   further \n\n\ndiscussion on the subject on 12.6.1996.\n\n\n\n32.              Thus there was once again a discussion with the Minister of State, \n\n\nUDD on 12.6.1996 when Shri Karandikar, Shri Harihar, City Engineer, PMC, Shri \n\n\nDeshpande, Deputy Secretary, Town Planning and Shri Ghadge, Under Secretary \n\n\nwere   present.     Shri   Ghadge   made   a   note   of   the   meeting   and   signed   it   on \n\n\n                                                 25\n\n\n13.6.1996, and which note is also signed by Shri Deshpande and the Additional  \n\n\nChief Secretary.  The note records that on behalf of the applicants it was stated  \n\n\nthat it was not possible for them to accept the alternative no.1, and Municipal \n\n\nCorporation   should   consider   the   second   alternative.     The   note   further   records  \n\n\nthat   thereupon   the   City   Engineer   suggested   that   if   the   applicant   shows   some \n\n\nother   alternative   properties,   the   Municipal   Corporation   will   inspect   all   of   them  \n\n\nand  then consider  as  to  which  of  them is  possible  to  be  accepted.    The  note \n\n\nthereafter records as follows:-\n\n\n\n                 \"In   the   event   such   alternative   property   is   selected   by  \n        Municipal   Corporation,   then   action   to   be   taken   for   shifting   the  \n        reservation   from   the   subject   property   as   per   Rule   No.   13.5   of  \n        Pune Development Control Rules can be considered.  However, it  \n        was   clarified   by   the   Department   that   for   that   purpose   the  \n        condition   of   200   mtr.   Distance   will   have   to   be   relaxed   and   for  \n        which   the   permission   of   Hon.   Chief   Minister   will   have   to   be  \n        obtained\".\n\n\n                 The PMC was thereafter asked to submit its response in the light of \n\n\nabove   discussion.     Shri   Ghadge   recorded   this   suggestion   in   his   letter   dated \n\n\n20.6.1996 addressed to the Municipal Commissioner.\n\n\n\n33.                The   Municipal   Commissioner   then   wrote   back   to   the   Under \n\n\nSecretary, UDD by his letter dated 15.7.1996, pointing out that the applicant had \n\n\nshown   four   sites   from   which   one   at   Lohegaon   Survey   No.261   H.No.1\/2 \n\n\nadmeasuring 3000 sq.meter was suitable for a primary school, but it was in the \n\n\nAgricultural   zone   as   per   the   approved   D.P.,   and   if   it   was   to   be   converted   to \n\n\nResidential zone, the approval of the State Government will have to be obtained  \n\n\nfor such a modification.\n\n\n                                                 26\n\n\n34.              On   receiving   this   letter   from   the   Municipal   Commissioner,   Shri \n\n\nGhadge   once   again   put   up   a   detailed   note   and   at   the   end   of   para   8   thereof  \n\n\nstated as follows:-\n\n\n            \"Considering the above circumstances and especially `A\" on 12 T.V.  \n        and B on 14 T.V., there could be no objection in granting permission  \n        for shifting reservation under Rule 13.5 of the D.C. Rules by relaxing  \n        the 200 meter condition and accordingly directions can be given to the  \n        PMC for taking the following necessary action:-\n\n\n            1. The Pune Municipal Corporation should recover the amount of  \n        compensation   paid   earlier,   for   acquisition   of   final   plot   No.110   at  \n        Earndwane together with the structures, with simple interest.\n\n\n                 2.      The   State   Government   should   issue   directions   to   the  \n        Pune   Municipal   Corporation   for   getting   the   plot   at   Lohegaon,   Pune  \n        Survey   No.261   Hissa   No.1\/2   from   Agricultural   zone   into   residential  \n        zone   by   following   the   procedure   under   Section   37(1)   of   the  \n        Maharastra   Regional   and   Town   Planning   Act,   1966   and   thereafter  \n        submitting the proposal to the State Government for sanction.\n\n\n                 3.      The   Commissioner   Pune   Municipal   Corporation   should  \n        take action for shifting the reservation for Primary School on Final Plot  \n        No.110 in the Development Plan of Pune City under Rule 13.5 of the  \n        Development Control Rules, Pune to Lohegaon, Survey No.261, Hissa  \n        No.1\/2 and for that purpose the permission of the Corporation is not  \n        necessary   as   intimated   earlier   by   the   State   Government   in   another  \n        case [Survey No.39\/1, Kothrud, Pune].\n\n\n                 4.      After   complying   with   (1)   and   (3)   above,   the   Pune  \n        Municipal Corporation should enter into an Agreement for transfer of  \n        the   land   at   Lohegaon   Pune   and   thereafter   give   development  \n        permission   for   the   plot   at   Erandwane.     However   the   Completion  \n        Certificate for that place should not be issued unless the construction  \n        of School at Lohegaon is completed.\"\n\n\n        Below that note there are signatures as follows:-\n\n                                                                                               \"Sd\/-\n                                                                                         26\/7\/96\n                                                                                (P.V. Ghadge)\n                                                                             Under Secretary\n\n\n                                                                                            Sd\/- \n                                                                                       26\/7\/96 \n                                                                           (Shri Deshpande)\n\n\n                                              27\n\n\n                                                     Deputy Secretary Town Planning\n\n\n                                                                                       Sd\/- \n                                                                                  26\/7\/96  \n                                                   Additional Chief Secretary, (U.D.)\n\n\n                                                                                       Sd\/- \n                                                                                 30\/7\/96 \n                                                     Hon'ble Minister of State (U.D.)\n       Received\n       31\/7\/96\n               All action be taken in accordance with law.  No objection.\n\n\n                                                                                        Sd\/-\n                                                                                    21\/8\/96\n                                                                     Hon. Chief Minister\"\n\n\n35.            In   view   of   the   above   decision   signed   by   the   Chief   Minister   on \n\n\n21.8.1996, the Deputy Secretary, UDD sent a letter\/order dated 3.9.1996 to the  \n\n\nCommissioner   containing   exactly   the   above   four   conditions.     The   letter   stated \n\n\nthat   he   had   been   ordered   by   the   State   Government   to   inform   those   four \n\n\ndirectives, and after quoting those four directives the letter further directed the \n\n\nCorporation   to   act   as   per   the   above   State   Government   directives   and   report \n\n\ncompliance.  The letter reads as follows:-\n\n\n\n       \"ENGLISH TRANSLATION OF STATE GOVERNMENT LETTER DATED \n                                        03\/09\/1996\n\n\n                                (MAHARASHTRA STATE)\n\n\n                                                        No.TPS-1896\/102\/Matter\n                                                        No.7\/96\/U.D.-93\n                                                        Urban   Development   Department\n                                                         Mantralaya, Mumbai 400 032\n\n\n                                                    Date : 3rd September, 1996\n\n\n       To,\n       The Commissioner\n       Pune Municipal Corporation\n\n\n                                                28\n\n\n       Pune\n\n\n               Sub:      Development Permission of T.P. Scheme No.1, Final Ploat \n                                  No.110.\n\n\n               Ref:      Request Application dated 20\/11\/95 by Shri Shriram \n                         Karandikar to Minister of State for Urban Development for  \n                         Development in the subject matter.\n\n\n       Sir,\n\n\n       I have been ordered by the State Government to communicate to you the  \nfollowing directives.\n\n\n               1.        The   Pune   Municipal   Corporation   should   recover   from   the  \n                         land     owner   according   to   the   land   acquisition   law   the  \n                         principal amount paid for acquisition of Final Ploat No.110,  \n                         Erandwane  along with construction, with interest thereon  \n                         at 12%.\n\n\n               2.        S.No.261   Hissa   No.1\/2   Lohegaon,   Pune   which   is   in  \n                         agricultural zone should be included within residential zone  \n                         in  the Development Plan.   For doing this you are directed  \n                         that Pune Municipal Corporation should complete the entire  \n                         legal   action   under   Section   37   (1)   of   the   Maharashtra  \n                         Regional   and   Town   Planning   Act,   1966   and   send   the  \n                         proposals to the State Government for sanction.\n\n\n               3.        The Commissioner, Pune Municipal Corporation should take  \n                         steps   to   shift   the   reservation   of   primary   school   in  \n                         accordance with Rule 13.5 of the Development Control Rules  \n                         from Final Plot No.110, Erandwane to Lohegaon S. No.260  \n                         Hissa No.1\/2.  For this purpose no sanction is required from  \n                         the   Pune   Municipal   Corporation   as   has   been   earlier  \n                         communicated   to   you   in   another   matter   (S.No.39\/1  \n                         Kothrud).\n\n\n               4.        After   action   as   stated   in   (1)   and   (3)   above   is   completed,  \n                         appropriate   agreement   be   entered   into   by   Pune   Municipal  \n                         Corporation   with   land   owner   about   transferring   the  \n                         Lohegaon   plot   and   thereafter   Development   permission   be  \n                         granted   in   respect   of   the   Plot   at   Erandwane,   however   no  \n                         completion  certificate   for that  place  be granted  unless  the  \n                         construction of school at Lohegaon is complete.\n\n\n       Corporation   to   act   as   per   the   above   State   Government   directive   and  \nsubmit report regarding compliance to the Government.\n\n\n                                                29\n\n\n                                                  Yours faithfully,\n\n\n\n                                                           Sd\/-\n                                              Vidyadhar Deshpande\n                                             Deputy Secretary\"\n\n\n\n        Notings from the Municipal Files:-\n\n\n\n36.             Thereafter we have the notings from the Municipal files which show \n\n\nthat consequently the City Engineer has written to landowner on 27.9.1996 to  \n\n\nreturn the amount paid to him for acquisition of final Plot No.110 T.P. Scheme, \n\n\nNo.1 with interest at the rate of 12%, and secondly to transfer concerned land \n\n\nbearing survey No.261 Hissa No.1\/2 at Lohegaon free of cost and without any \n\n\nencumbrances.  The letter further stated that only after compliance of the above  \n\n\ntwo conditions he will be given permission for development of F.P. No.110.   It \n\n\nthen   stated   that   building   completion   certificate   will   be   given   only   after   the \n\n\nprocedure   under   Section   37   (1)   of   the   MRTP   Act   for   deleting   Survey   No.261  \n\n\nHissa 2\/1 at Lohegaon, Hadapsar from the agricultural zone, and reserving it for \n\n\nprimary school is completed, and sanctioned by the State Government.  \n\n\n\n37.             Thereafter there is one more note of the Municipal Commissioner \n\n\ndated  21.9.1996 which  records  the opinion  of the Senior  Law Officer  that  the \n\n\npermission   of   the   general   body   of   PMC   will   be   required   for   entering   into   an \n\n\nagreement for deleting the reservation of plot at Erandawana.   With respect to \n\n\nthe same the commissioner has recorded as follows:-\n\n\n                \"However,   since   the   State   Government   has   given   clear  \n        orders to take action under Rule 13.5 of the Development Control  \n        Rules of Pune for complying with the subject matters and since  \n\n\n                                                30\n\n\n        directives   have   been   given   for   making   such   change,   no  \n        permission of the Pune Municipal Corporation is necessary\". \n\n\n\n        Subsequent Developments\n\n\n\n38.             Consequently,   the   subsequent   steps   have   been   taken.     The \n\n\nlandowner has returned the amount as sought, a deed of settlement has been \n\n\nentered   into   between   the   landowner   and   the   PMC,   and   Commencement \n\n\nCertificates have been issued on 28.11.1996 and 3.5.1997 for the two buildings  \n\n\nproposed  to be constructed.    An Occupation  Certificate  dated  20.12.1997 was  \n\n\nalso   given   for   a   part   of   the   building   completed   thereafter   namely,   B   Wing \n\n\ncontaining 24 flats for the tenants.   It is however interesting to note that PMC \n\n\ninstructed   its   counsel   on   19.11.1996   to   withdraw   its   first   appeal   in   the   High \n\n\nCourt as directed by the Government even before the landowner returning the \n\n\namount of compensation with interest on 22.11.1996.\n\n\n\n39.             It has so transpired that though the land at Lohegaon was handed \n\n\nover   to   PMC   as   proposed,   subsequently   the   Municipal   Corporation   found   that \n\n\nthere was not so much need of a school at Lohegaon, but a school was needed \n\n\nat Sinhagad Road, Dattawadi.  The procedure for changing the zone of the land \n\n\nat Lohegaon as required under Section 37 of the MRTP Act was also taking its \n\n\nown   time   at   the   municipal   level.     Once   again   there   was   a   correspondence  \n\n\nbetween the PMC and the Government in this behalf. The Commissioner wrote \n\n\nto the Dy. Secretary, UDD on 28.5.1998 for a modification in the conditions in  \n\n\nthe   Government   letter   dated   3.9.1996   to   get   the   school   constructed   at \n\n\nDattawadi (instead of Lohegaon) in lieu of the school reservation on plot no. 110 \n\n\n                                                   31\n\n\nat   Prabhat   road.   At   this   stage   for   the   first   time   we   have   the   letter   from   the  \n\n\ndeveloper dated 15.7.1998 addressed to the City Engineer of PMC signed by Shri \n\n\nGirish Vyas for the Vyas Constructions, stating that he was prepared to offer an \n\n\nalternative   site   admeasuring   3000   sq.   meters   at   Mundhwa   within   PMC   area \n\n\nwhich   is   in   residential   zone.   This   was   to   avoid   the   difficulty   concerning   the \n\n\nchange of zone. Additionally he was prepared to deposit  an amount with PMC \n\n\nequivalent to the cost of construction of 500 sq. meters as per PMC's standard \n\n\nspecifications,   and   PMC   may   construct   the   school   whenever   and   wherever   it \n\n\nrequired. He further sought that on his doing so, the final completion certificate \n\n\nbe issued so that the flat purchasers can occupy their flats in the building on F.P. \n\n\nNo.110 which was almost ready.  \n\n\n\n40.              The Government file contains one more note made by the Under \n\n\nSecretary   Shri   Rajan   Kop   and   signed   by   Shri   Deshpande   on   22.7.1998.     It   is  \n\n\nclearly   recorded   below   the   note   that   it   was   marked   for   the   Additional   Chief  \n\n\nSecretary   to   the   Chief   Minister,   and   also   for   the   Chief   Minister.     The   note \n\n\nmentions that there has been substantial criticism in local newspaper about this \n\n\nmatter.  It is stated that the issue was raised in the general body of PMC, and it \n\n\nwas represented that an amenity in the area is being destroyed by deleting the \n\n\nreservation for a primary school.  The Commissioner had defended the decision \n\n\nby contending that although 3450 sq. meter area of reservation of F.P. No.110 \n\n\nwas being deleted, reservation on 8219 sq. meters on adjoining two plots was \n\n\nbeing   maintained.     It   was   also   pointed   out   by   the   Commissioner   that   an \n\n\nadditional amenity was being created in another area.  The note further records  \n\n\n                                                   32\n\n\nthat   in   the   meanwhile   the   proposal   to   shift   the   reservation   on   the   plot   at \n\n\nLohegaon had been filed (i.e. disapproved) by the Standing Committee of PMC. \n\n\nLast para of this note states as follows:-\n\n\n                 \"Senior Chief Secretary of Hon. Chief Minister has issued  \n        instructions to put up a self explanatory note in this entire matter  \n        for   perusal   of   Hon.   Chief   Minister.     It   is   further   instructed   to  \n        include the matters wherein the Government has taken a decision  \n        in   this   matter   as   also   in   another   matter   prior   thereto,   the  \n        information   provided   and   points   suggested   by   Municipal  \n        Corporation with respect to the matters of deletion of reservation  \n        from Pune City Development Plan, etc., Such note containing the  \n        full background, factual and other aspects of the matter would be  \n        useful for Hon. Chief Minister if certain questions are raised with  \n        respect   to   the   said   matter   in   the   current   session   of   Legislative  \n        Assembly.\"\n\n\n\n41.              On   receiving   the   developer's   letter   dated   15.7.1998,   the \n\n\nCommissioner   once   again   wrote   to   Under   Secretary   UDD   on   23.7.1998 \n\n\nsuggesting acceptance of the two proposals of the developer, but seeking orders \n\n\nof   the   government   therefor.     It   is   material   to   note   at   this   stage   that   in   the  \n\n\nGovernment   file   there   is   a   clear   noting   of   the   Principal   Secretary   UDD   dated \n\n\n24.7.1998 that the application of Rule 13.5 in the matter under question was not \n\n\nlegal.  As the note states:-\n\n\n                 \".......With   due   respect   to   the   persons   then,   doing  \n        interpretation  of  the  said   decision   of the  Government  and  Rule  \n        No. 13.5, I feel that application  of Rule No. 13.5 in  the matter  \n        under question is not legal.  Upon plain reading of the said rule it  \n        is clear that this rule can be applied when the reservation is to be  \n        shifted   within   a   distance   of   200   mtrs.     Government   or   the  \n        Commissioner do not appear to be empowered for such shifting  \n        beyond   the   distance   of   200   mtrs.     It   would   have   been   much  \n        appropriate that the action for change as contemplated in Sec. 37  \n        of the Maharashtra Regional and Town Planning Act, 1966 would  \n        have been taken......\"\n\n\n                                                 33\n\n\n42.              In   view   of   Commissioner's   letter   dated   23.7.1998   however,   once \n\n\nagain   a   departmental   note   was   prepared   containing   following   opinion,   still \n\n\nseeking to resort to Rule 13.5.\n\n\n                      \"...... After considering this issue the following opinion is  \n         being expressed on the proposal of Pune Municipal Corporation.\n\n           (1)  Commissioner,   Pune   Municipal   Corporation   to   take   action   to  \n         cancel the action earlier taken of shifting reservation at Lohegaon  \n         as   per   Rule   No.   13.5   and   the   action   of   shifting   the   said   part  \n         reservation to Mundhawa be initiated afresh under Rule 13.5.\n\n          (2)  Prior to taking action as stated in (1) above, even though it is  \n         stated by the Commissioner that the land at Mundhwa admeasuring  \n         3000 sq. mtrs., suggested by the Promoter is suitable, still however,  \n         it is necessary that the Commissioner , Pune Municipal Corporation  \n         should get himself satisfied about the 12 mtr. wide approach being  \n         available to the said land.   After satisfying itself the legal action for  \n         taking the said Mundhwa land in possession of the Pune Municipal  \n         Corporation be completed.  After completing these actions only, it is  \n         necessary to take action as stipulated in (1) above.\n\n         (3)   As per the earlier instructions, the Pune Municipal Corporation  \n       got   executed   agreement   for   construction   of   500   sq.mtrs.   Since   the  \n       action   with  respect  to  Lohegaon  land  had  remained  incomplete,  the  \n       Municipal Corporation could not grant permission to construct school  \n       therein.     This   construction   could   have   been   got   done   on   Mundhwa  \n       land.   However, from the letter of the Commissioner, Pune Municipal  \n       Corporation it is seen that he has not yet decided as to whether the  \n       school is to be constructed on the said land or not.  On the other hand  \n       he has asserted that since the Promoter is ready to pay such amount  \n       of construction no loss would be caused to Municipal Corporation by  \n       getting   deposited   such   amount.     Considering   this   issue,   principally  \n       there appears to be no objection on the part of the Commissioner in  \n       accepting  the proposal  of promoter as recommended  by  him with  a  \n       view to get available the necessary amenity for the school as per their  \n       requirements.   However, it would be binding upon the Commissioner  \n       to   spend   the   said   amount   for   the   construction   at   such   place   which  \n       may   be   found   necessary   and   as   may   be   recommended   by   the  \n       Education Committee.\n\n       (4)  Since the actions to be taken as stipulated in point No. (3) above,  \n       are between the Pune Municipal Corporation Education Committee and  \n       Commissioner,   Pune   Municipal   Corporation,   there   is   no   reason   to  \n       suspend the action of granting completion certification to the Promoter  \n       therefore.   Therefore, the Government shall have no objection if the  \n       completion   certificate   is   granted   by   Municipal   Corporation   to   the  \n\n\n                                              34\n\n\n       Promoter after completing the actions as stipulated in para No. 1 and  \n       2 subject to the rules and provisions in that behalf.\n\n                If   the   aforesaid   issues   are   approved,   the   proposal   of   the  \n       Commissioner   in   the   present   circumstances   being   FOR   superior  \n       purpose   than   these   contained   in   the   earlier   directives   of   the  \n       Government   there   should   be   no   reason   to   object   the   proposal  \n       submitted by the Commissioner and the same ought to be principally  \n       approval   subject   however,   to   the   conditions   mentioned   in   the  \n       aforesaid discussion.   In accordance  hereof the draft or letter to be  \n       sent to Pune Municipal Corporation is put up at Page No. _____\/PV.\n                The above proposal will be issued on the same being approved.\n\n                Submitted for orders.\n\n                                                Sd\/-\n                                              27.7.98\n                                        (Vidyadhar Deshpande)\n                                            Dy. Secretary.\n                                           Sd\/-27.7.1998\"\n\n\n43.             Below   this   note   however,   the   Additional   Chief   Secretary   to   the \n\n\nChief Minister put up a remark as follows and signed below it:-\n\n\n\n                \"In this matter the developer and Hon. Chief Minister being  \n        related, it is requested that the Hon. Minister of State should take  \n        proper decision as per rules\".\n\n\n        Thereafter there is the order of the Minister of State which is as follows:-\n\n\n         `Proposal of Department approved. Orders be issued':-\n\n                                                                                 \"Sd\/- \n                                                                               28.7.98\n                                                                               N.V.V.\"\n\n\n44.             The   Deputy  Secretary   thereafter   sent   a  reply   dated  29.7.1998   to \n\n\nthe   letters   of   the   Municipal   Commissioner   dated   28.5.1998   and   23.7.1998.   In \n\n\npara 1 thereof he referred to the Commissioner's letter dated 28.5.1998 seeking \n\n\nto shift reservation on F.P. No. 110 under DC Rule 13.5 to Mundhawa instead of  \n\n\nLohegaon.  Thereafter he stated in para 2 as follows:-\n\n\n                                                 35\n\n\n                 \".........Now   the   Developer   has   shown   his   readiness   to  \n        make available land at Mundhawa.  Therefore, in your letter you  \n        have sought approval to recover the proper amount required for  \n        the   construction   of   500   sq.mtrs,   after   taking   action   stated   in  \n        preceding paragraph.  Upon due consideration of your request, I  \n        have   orders   to   inform   you   that   after   recovering   such   proper  \n        amount   from   the   Developer,   the   said   amount   be   utilized   for  \n        construction of primary school at such place as may be required  \n        and   recommended   by   the   Education   Committee   of   Pune  \n        Municipal   Corporation.     Because  of  this   order   request   made  by  \n        you in your letter dt. 28.5.98 automatically becomes redundant.\n\n\n                 In your letter dt. 23rd July 98 you have sought guidance on  \n        the   issue   of   grant   of   occupancy   certificate   to   the   Developer.  \n        After taking the action as stated in paragraph 1 and 2, there is no  \n        reason   for   the   Government   to   have   objection   if   in   furtherance  \n        thereof   the   Pune   Municipal   Corporation   issues   the   occupancy  \n        certificate   subject   to   the   other   provisions   of   the   Rules   in   that  \n        behalf.\"\n\n\n\n45.              In   view   of   the   directions   dated   3.9.1996   issued   by   the   State \n\n\nGovernment,   the  PMC   issued   (i)  Commencement   Certificate   (C.C.   for  short)  in \n\n\nthe   name   of   the   landowner   dated   28.11.1996   for   constructing   a   building   to \n\n\nrehabilitate the tenants, (ii) the second C.C. dated 3.5.1997 for constructing the \n\n\nother   residential   buildings   consisting   of   ground   plus   ten   floors   (named   as \n\n\nSundew Apartment by the developer), and (iii) the Occupation Certificate (O.C. \n\n\nfor   short)   in   part   dated   20.12.1997   for   the   tenants'   building.     Thereafter,   the  \n\n\ndeveloper   signed   a   confirming   agreement   with   the   landowner   and   his   family \n\n\nmembers on 16.1.1998 to once again confirm the terms of the earlier referred \n\n\ndevelopment agreement entered into between the developer and landowner on \n\n\n20.10.1995.   It is at this stage,  that two  petitions  bearing  no. 4433\/1998 and \n\n\n4434\/1998 were filed on 12.8.1998 and 14.8.1998 respectively. A Division Bench \n\n\nfirst issued Rule Nisi without any interim order.  In as much as the construction  \n\n\n                                                 36\n\n\nhad started from March 1997 and was substantially completed, only a direction \n\n\nwas given in Writ Petition No.4434\/1998 not to create any third party interest.  \n\n\nThe PMC was already directed not to grant completion certificate in respect of \n\n\nthe ten storey building.  Subsequently, the petitions were heard finally, and the \n\n\nDivision   Bench   consisting   of   Hon'ble   Justice   B.N.   Srikrishna   and   Justice   S.S \n\n\nParkar,   rendered   two   concurrent   judgments   on   6th-15th  March   1999,   and   a \n\n\ncommon order which have been challenged in the present group of appeals.\n\n\n\n        Justification of the shifting of reservation under D.C. Rule 13.5: \n\n        Is it in consonance with the statute?\n\n\n\n46.              As we have noted, the State Government directed the PMC to shift \n\n\nthe   reservation   on   F.P.   No.   110   under   DC   Rule   13.5.   The   question   therefore \n\n\ncomes   up   as   to   whether   the   action   by   the   State   is   in   consonance   with   the \n\n\nstatutory scheme, and that apart whether such an action is permissible under DC \n\n\nRule   13.5?   If   we   look   to   the   scheme   of   the   Act   it   gives   importance   to   the \n\n\nimplementation   of   the   sanctioned   plan   as   it   is   and   it   is   only   in   certain \n\n\ncontingencies that the provision thereunder is permitted to be modified, and that  \n\n\ntoo after following the necessary procedure made in that behalf. \n\n\n\n        Signification   of   the   Sanctioned   Plan   and   the   provisions   for   the \n\n        modification thereof\n\n\n\n47.              The   Planning   process   under   the   MRTP   Act   is   quite   an   elaborate \n\n\nprocess.     A   number   of   town   planners,   architects   and   officers   of   the   Planning \n\n\nAuthority, and wherever necessary those of the State Government participate in \n\n\nthe process. They take into consideration  the requirements of the citizens and  \n\n\n                                                   37\n\n\nthe need for the public amenities. The planners consider the difficulties presently  \n\n\nfaced by the citizens, make rough estimate of the likely growth of the city in near \n\n\nfuture and provide for their solutions.   The plan is expected to be implemented  \n\n\nduring the course of the next twenty years.  After the draft Development Plan is \n\n\nprepared,   a   notice   is   published   in   the   official   gazette   stating   that   the   plan   is  \n\n\nprepared.     Under   Section   26(1)   of   the   Act   the   name   and   place   where   copy  \n\n\nthereof will be available for inspection to the public at large is notified.   Copies \n\n\nand  extracts  thereof  are  also  made  available  for  sale.    Thereafter  suggestions  \n\n\nand   objections   are   invited.     The   provisions   of   regional   plan   are   given   due \n\n\nweightage   under   Section   27   of   the   Act   and   then   the   plan   is   finalised   after  \n\n\nfollowing   the   detailed   process   under   Section   28   of   the   Act.     This   being   the \n\n\nposition,   Chapter-III   of   the   MRTP   Act   on   Development   Plans   requires   the \n\n\nsanctioned   plan   to   be   implemented   as   it   is.     There   are   only   two   methods   by \n\n\nwhich modifications of the final Development Plan can be brought about.  One is \n\n\nwhere   the   proposal   is   such   that   it   will   not   change   the   character   of   the  \n\n\nDevelopment   Plan,   which   is   known   as   minor   modification   and   for   which   the \n\n\nprocedure   is   laid   down   under   Section   37   of   the   Act.     The   other   is   where   the \n\n\nmodification is of a substantial nature which is defined under Section 22A of the  \n\n\nAct.  In that case the procedure as laid down under Section 29 is required to be \n\n\nfollowed.     There   is   also   one   more   analogous   provision   though   it   is   slightly  \n\n\ndifferent i.e. the one provided under Section 50 of the Act, for deletion of the  \n\n\nreservation where the appropriate authority (other than the planning authority)  \n\n\n                                                 38\n\n\nno   longer   requires   the   designated   land   for   the   particular   public   purpose,   and \n\n\nseeks deletion of the reservation thereon.\n\n\n\n48.              The Government's action to shift the reservation on F.P. No. 110 is \n\n\nunder   DC   Rule   13.5   and   not   under   Section   37   of   the   MRTP   Act.     We   may \n\n\ntherefore refer to DC Rule 13.5 and Section 37.\n\n\n                 DC Rule 13.5 reads as follows:-\n\n\n                 \"13.5 If the land proposed to be laid out is affected by any  \n       reservation\/s or public purpose\/s authority may agree to adjust the  \n       location   of   such   reservation\/s   to   suit   the   development   without  \n       altering the area of such reservation.   Provided however, that no  \n       such shifting of the reservation\/s shall be permitted.\n\n\n                 (a)     beyond 200 m. of the location in the Development  \n                         Plan.\n\n                 (b)     beyond   the   holding   of   the   owner   in   which   such  \n                         reservation is located, and\n\n                 (c)     unless the alternative location  is at least similar to  \n                         the   location   of   the   Development   Plan   as   regards  \n                         access, levels etc.\n\n                 All such alterations in the reservations\/alignment of roads  \n       shall be reported by the Planning Authority to Govt. at the time of  \n       sanctioning the layout.\"\n\n\n\n49.              As can be seen from the D.C. Rule 13.5, shifting of the reservation \n\n\nthereunder   has   to   be   without   altering   the   size   of   the   area   under   reservation. \n\n\nBesides it is permissible only on three conditions namely, that (1) it cannot be \n\n\nbeyond 200 metres of the original location in the Development Plan, (2) it has to  \n\n\nbe within the holding of the owner in which the reservation is located, and (3) \n\n\nthe   alternative   location   ought   to   have   a   similar   access   and   land   level   as   the \n\n\noriginal location.  Obviously the shifting of the reservation from F.P. No. 110 to a \n\n\nfar off place could not be justified under D.C. rule 13.5.\n\n\n                                               39\n\n\n       Minor Modifications\n\n\n\n50.            Section 37 of the MRTP Act, reads as follows:-\n\n\n\n               \"37. Modification of final Development Plan\n\n\n                 (1) Where a modification of any part of or any proposal  \n       made in, a final Development plan is of such a nature that it will  \n       not change the character of such Development plan, the Planning  \n       Authority   may,   or   when   so   directed   by   the   State   Government  \n       [shall, within sixty days from the date of such direction, publish a  \n       notice] in the Official Gazette [and in such other manner as may  \n       be determined by it] inviting objections and suggestions from any  \n       person with respect to the proposed modification not later than  \n       One   month   from   the   date   of   such   notice;   and   shall   also   serve  \n       notice on all persons affected by the proposed modification and  \n       after giving a hearing to any such persons, submit the proposed  \n       modification (with amendments, if any), to the State Government  \n       for sanction.\n\n\n         [(1A)   If   the   Planning   Authority   fails   to   issue   the   notice   as  \n       directed   by   the   State   Government,   the   State   Government   shall  \n       issue the notice, and thereupon the provisions of sub-section (1)  \n       shall apply as they apply in relation to a notice to be published by  \n       a Planning Authority.]\n\n\n         [(1AA)   (a)   Notwithstanding   anything   Contained   in   sub-sections  \n       (1), (1A) and (2), where the State Government is satisfied that in  \n       the   public   interest   it   is   necessary   to   carry   out   urgently   a  \n       modification   of   any   part   of,   or   any   proposal   made   in,   a   final  \n       Development   Plan   of   such   a   nature   that  it   will   not   change   the  \n       character of such Development Plan, the State Government may,  \n       on its own, publish a notice in the Official Gazette, and in such  \n       other manner as may be determined by it, inviting objections and  \n       suggestions   from   any   person   with   respect   to   the   proposed  \n       modification   not   later   than   one   month   from   the   date   of   such  \n       notice and shall also serve notice on all persons affected by the  \n       proposed modification and the Planning Authority.\n\n               (b) The State Government shall, after the specified period,  \n               forward a copy of all such objections  and suggestions to  \n               the Planning Authority for its say to the Government within  \n               a period  of one month from  the receipt  of the copies  of  \n               such objections and suggestions from the Government.\n\n               (c) The State Government shall, after giving hearing to the  \n               affected   persons   and   the   Planning   Authority   and   after  \n\n\n                                                40\n\n\n                making   such   inquiry   as   it   may   consider   necessary   and  \n                consulting the Director of Town Planning, by notification in  \n                the   Official   Gazette,   publish   the   approved   modifications  \n                with or without changes, and subject to such conditions as  \n                it   may   deem   fit,   or   may   decide   not   to   carry   out   such  \n                modification. On the publication of the modification in the  \n                Official   Gazette,   the   final   Development   Plan   shall   be  \n                deemed to have been modified accordingly.]\n\n\n          [(1-B) Notwithstanding anything contained in sub-section (1), if  \n        the Slum Rehabilitation Authority appointed under section 3A of  \n        the   Maharashtra   Slum   Areas   (Improvement,   Clearance   and  \n        Redevelopment) Act, 1971(Mah. XXV-III of 1971) is satisfied that  \n        a  modification   of  any  part of,  or any  proposal  made  in, a  final  \n        Development Plan is required to be made for implementation of  \n        the   Slum   Rehabilitation   Scheme   declared   under   the   said   Act,  \n        then, it may publish a notice in the Official Gazette, and in such  \n        other manner as may be determined by it, inviting objections and  \n        suggestions   from   any   person   with   respect   to   the   proposed  \n        modification   not   later   than   one   month   from   the   date   of   such  \n        notice; and shall also serve notice on all persons affected by the  \n        proposed   modification,   and   after   giving   a   hearing   to   any   such  \n        persons, submit the proposed modification (with amendments, if  \n        any) to the State Government for sanction.]\n\n        (2)   The   State   Government   may,   [make   such   inquiry   as   it   may  \n        consider   necessary]   and   after   consulting   the   Director   of   Town  \n        Planning   by   notification   in   the   Official   Gazette,   sanction   the  \n        modification * * * with or without such changes, and subject to  \n        such conditions as it may deem fit or refuse to accord sanction. If  \n        a modification is sanctioned, the final Development Plans shall be  \n        deemed to have been modified accordingly.\"\n\n\n\n51.             As seen from this Section, the minor modification under Section 37 \n\n\n(1) has to be such that it will not change the character of the Development Plan.  \n\n\nThe   section   indicates   that   for   setting   the   procedure   under   Section   37   into \n\n\nmotion, the Planning Authority has to firstly form an opinion that the proposed  \n\n\nmodification   will   not   change   the   character   of   the   Development   Plan.   Such   an \n\n\nopinion has to be formed by the Planning Authority meaning the general body of  \n\n\nthe Municipal Corporation, since this function is not permitted to be delegated to \n\n\n                                                  41\n\n\nanybody else under Section 152 of the Act.   Thereafter the Planning Authority \n\n\nhas   to   publish   a   notice   in   the   official   gazette   inviting   the   objections   and \n\n\nsuggestions from the public with respect to the proposed modification. It is also \n\n\nrequired   to   give   a   notice   to   all   the   persons   affected   by   the   proposed \n\n\nmodification. Sub-section (1A) lays down that if the Planning Authority does not  \n\n\ngive the notice, the State Government is required to issue the notice as stated \n\n\nabove.  The notice to the affected persons in our case will mean notice at least  \n\n\nto the two institutions which had applied for developing a Primary school on this \n\n\nvery   plot   of   land.     Thereafter   they   have   to   be   heard,   and   the   proposed  \n\n\nmodification   with   amendments   if   any,   is   to   be   submitted   to   the   State \n\n\nGovernment for sanction.  Subsequently, after making appropriate enquiries and \n\n\nafter consulting the Director of Town Planning the State Government may under \n\n\nsub-section (2) sanction the modification with or without appropriate changes, or \n\n\nsubject to such conditions as it may deem fit or refuse to grant the sanction.  \n\n\n\n52.              Sub-section (1AA) of Section 37 lays down the power of the State \n\n\nGovernment where it feels the urgency for carrying out any such modification. \n\n\nIn that case the State Government may publish the notice in the Official Gazette,  \n\n\nand follow the similar procedure, but subsequently it has to place the proposal \n\n\nbefore the general body of the Planning Authority for its say, and thereafter only \n\n\nit may sanction the modification after consulting the Director of Town Planning in \n\n\na   similar   manner.       This   shows   that   in   the   event   of   a   minor   modification   the  \n\n\ngeneral body of the Planning Authority has a say in the matter.  The Government \n\n\nhas   to   invite   the   objections   and   suggestions   from   the   public   at   large   by  \n\n\n                                                  42\n\n\npublishing the notification in the Official Gazette, plus it has to issue a specific  \n\n\nnotice to the persons affected by the proposed modification, and last but not the  \n\n\nleast   it   has   to   consult   the   Director   of   Town   Planning   before   arriving   at   its \n\n\ndecision.  In the present case nothing of the kind has been done.  \n\n\n\n53.              In   the   instant   case   the   officers   of   the   Urban   Development \n\n\nDepartment as well as of the PMC took the stand (until it was possible), that the \n\n\nprocedure  under Section 37 will have to be followed.    This was because what \n\n\nwas contemplated  was a modification  of  a proposal made  in the Development \n\n\nPlan. A reservation for an amenity was sought to be shifted (which will in fact  \n\n\nmean it was sought to be deleted) from the place where it was provided.  If that  \n\n\nwas the official view of UDD and PMC, what was required was a compliance of \n\n\nthe procedure under Section 37(1) and (2).   Ultimately, since the direction was  \n\n\ngiven by the State Government, (and if the State Government thought that there \n\n\nwas an urgency), it was necessary for it to act under Section 37 (1AA), and to \n\n\npublish a notice in the Official Gazette to invite objections and suggestions from \n\n\nthe   public   at   large,   and   also   from   the   persons   affected   by   the   proposed  \n\n\nmodification.     Thereafter   the   State   Government   was   required   to   send   the \n\n\nproposal   to   PMC   for   its   say   and   then   it   had   to   consult   the   Director   of   Town  \n\n\nPlanning.\n\n\n\n        Modifications of a substantial nature\n\n\n\n54.              Where   the   modification   is   of   a   substantial   nature,   a   different \n\n\nprocedure   is   prescribed   under   Section   22A   of   the   Act.   This   Section   reads   as \n\n\nfollows:-\n\n\n                                       43\n\n\n                \" 22A. Modifications of a substantial nature\n\n   In section 29 or 31, the expression \"of a substantial nature\"  \n   used   in   relation   to   the   modifications   made   by   the   Planning  \n   Authority   or   the   officer   appointed   by   the   State   Government  \n   under sub-section (4) of section 21 (hereinafter referred to as  \n   \"the said Officer\") or the State Government, as the case may  \n   be, in the Draft Development Plan means,--\n\n (a) reduction of more than fifty per cent., or increase by ten per  \n   cent. in area of reservations provided for in clauses (b) to (i)  \n   of   section   22,   in   each   planning   unit   or   sector   of   a   draft  \n   Development   Plan,   in   sites   admeasuring   more   than   0.4  \n   hectare   in   the   Municipal   Corporation   area   and   'A'   Class  \n   Municipal   area   and   1.00   hectare   in   'B'   Class   and   'C'   Class  \n   Municipal areas;\n\n (b) all changes which result in the aggregate to a reduction of  \n   any   public   amenity   by   more   than   ten   per   cent   of   the   area  \n   provided in the planning unit or sector in a draft Development  \n   Plan   prepared   and   published   under   section   26   or   published  \n   with modification under section 29 or 31, as the case may be;\n\n (c) reduction in an area of an actually existing site reserved for  \n   a public amenity except for marginal area upto two hundred  \n   square meteres required for essential public amenity or utility  \n   services;\n\n (d) change in the proposal of allocating the use of certain lands  \n   from  one  zone  to  any   other  zone  provided  by  clause  (a)  of  \n   section  22 which results in increasing the area in that other  \n   zone by ten per cent. in the same planning unit or sector in a  \n   draft Development Plan prepared and published under section  \n   26 or published with modification under section 29 or 31, as  \n   the case may be;\n\n (e)   any   new   reservation   made   in   a   draft   Development   Plan  \n   which is not earlier published under section 26, 29 or 31, as  \n   the case may be;\n\n\n (f) alternation in the Floor Space Index beyond ten per cent. of  \n   the Floor Space Index prescribed in the Development Control  \n   Regulations   prepared   and   published   under   section   26   or  \n   published   with   modification   under   section   29   or   31,   as   the  \n   case may be.].\"\n\n\n\nAdditional   requirement   of   notice   in   local   newspapers   before \n\neffecting modifications of substantial nature:-\n\n\n                                                   44\n\n\n55.               The   modification   under   Section   22A   requires   following   of   the \n\n\nprocedure under Section 29 of the MRTP  Act.   It lays down that apart from a \n\n\nnotice   in   the   official   gazette,   a   notice   will   have   to   be   published   in   the   local  \n\n\nnewspapers for the information at the public  at large,  so that they may make \n\n\ntheir   suggestions   or   file   objections   thereto   if   they   so   deem   it   fit.     Section   29  \n\n\nreads as follows:-\n\n\n                  \"29.   Modification   made   after   preparing   and  \n         publishing notice of draft Development plan.\n\n\n                  Where the modifications made by a Planning Authority or  \n         the   said   Officer   in   the   draft   Development   plan   are   [of   a  \n         substantial nature], the Planning Authority or as the case may be,  \n         the said Officer shall publish a notice in the Official Gazette and  \n         also in the local newspapers inviting objections and suggestions  \n         from any person with respect to the proposed modifications not  \n         later   than   sixty   days   from   the   date   of   such   notice;   and  \n         thereupon, the provisions of section 28 shall apply in relation to  \n         such suggestions and objections as they apply to suggestions and  \n         objections dealt with under that section.\"\n\n\n\n56.               As seen from this Section 22A, it treats modifications of six types as \n\n\nsubstantial modifications.  They are as follows:-\n\n\n(a)      if a plot is admeasuring more than 0.4 hectare (i.e. 4000 sq. metres) in  \n\n\nthe Municipal Corporation area  or an A class Municipal area a reduction of more \n\n\nthan 50 per cent would be considered as a substantial modification.   In B & C \n\n\nclass Municipal Areas such a plot has to be of one hectare.\n\n\n(b)      secondly, under sub-section (b) all changes which result in the aggregate \n\n\nto   a   reduction   of   any   public   amenity   by   more   than   ten   per   cent   of   the   area \n\n\nprovided in the planning unit are considered a substantial change.\n\n\n                                                45\n\n\n(c)     where   there   is   an   actually   existing   site   reserved   for   a   public   amenity, \n\n\nexcept for marginal area upto two hundred square metres required for essential \n\n\npublic   amenities   or   utility   services   their   reduction   will   be   a   substantial \n\n\nmodification.\n\n\n(d)     shifting of the allocation of use of land from zone to zone which results in  \n\n\nincreasing the area in the other zone by ten per cent in the same planning unit \n\n\nwill be a substantial modification.\n\n\n(e)     any new reservation made in a draft Development Plan which is not earlier \n\n\npublished will be a substantial modification, and \n\n\n(f)     alternation   in   the   Floor   Space   Index   beyond   ten   per   cent   will   be   a \n\n\nsubstantial modification.\n\n\n\n        Importance given to the spaces reserved for public amenities\n\n\n\n57.              As   we   have   noted,   all   such   substantial   modifications   can   be \n\n\neffected only after following the additional requirement laid down in Section 29 \n\n\nviz. a notice in the local newspapers inviting objections and suggestions within \n\n\nsixty  days  from  the   public  at   large  with   respect  to   the   proposed  modification. \n\n\nSub-section (a) deals with reduction of more than fifty percent in area provided \n\n\nin   clauses   (b)   to   (i)   of   Section   22   which   sub-sections   are   concerned   with  \n\n\nproposals for designation of land for public purposes such as schools, colleges, \n\n\nmarkets,   and   open   spaces,  playgrounds,  transport   and  communications,  water \n\n\nsupply, drainage and sewerage and other public amenities.  It can be seen that \n\n\nsub-sections  (b) and (c) of section 22A give importance  to retention  of places  \n\n\nreserved   for   public   amenities.     Sub-section   (b)   deals   with   a   reduction   of   any \n\n\n                                                  46\n\n\npublic amenity by more than ten per cent of the area reserved in the planning \n\n\nunit.     Sub-section   (c)   deals   with   any   reduction   in   an   actually   existing   site  \n\n\nreserved   for   a   public   amenity   (other   than   marginal   area   upto   200   sq.   metres \n\n\nrequired for essential public amenities or utility services for e.g. road widening). \n\n\nBoth   are   treated   as   substantial   modifications.     Section   2   (2)   of   the   MRTP   Act \n\n\ndefines what is an \"amenity\".  It is relevant to note that this definition of amenity \n\n\nincludes primary and secondary schools and colleges and polytechnics.  It reads \n\n\nas follows:-\n\n\n                 \"2  [(2).   \"amenity\"   means   roads,   streets,   open   spaces,  \n        parks recreational grounds, play grounds, sports complex, parade  \n        grounds, gardens, markets, parking lots, primary and secondary  \n        schools   and   colleges   and   polytechnics,   clinics,   dispensaries   and  \n        hospitals,   water   supply,   electricity   supply,   street   lighting,  \n        sewerage,   drainage,   public   works   and   includes   other   utilities,  \n        services and conveniences].\"\n\n\n\n58.              In the present case we have a situation where the reservation for a \n\n\nPrimary school on a plot of an area of 3450 sq. metres is deleted. Would it not  \n\n\namount to a substantial modification under sub-section (b) of Section 22A since \n\n\nit results into deletion of a public amenity in the entire planning unit?  Would it \n\n\nnot mean that in view thereof it was necessary to follow the procedure required \n\n\nunder   Section   29   of   the   Act   which   provides   for   a   public   notice   in   the   Official \n\n\nGazettee and also in the local newspapers inviting objections and suggestions? \n\n\nWould it not mean that thereafter it was necessary to follow the procedure  to \n\n\ndeal   with   the   suggestions   and   objections   laid   down   while   finalizing   the   draft \n\n\nDevelopment   Plan   under   Section   28   of   the   Act?     Whether   the   shifting   of   this  \n\n\nreservation   is   covered   under   Section   37   or   Section   22A   is   a   moot   point   to  \n\n\n                                                 47\n\n\nconsider.   One thing is however very clear, that it could not be justified under \n\n\nD.C. Rule 13.5.   If the statute provides for doing a particular act in a specified  \n\n\nmanner,   it   has   got   to   be   done   in   that   manner   alone,   and   not   in   any   other  \n\n\nmanner.\n\n\n          Alleged   Conflict   between   D.P.   Plan   and   the   erstwhile   T.P. \n\n            Scheme canvassed for the first time in the High Court -     \n\n            Can a provision in the erstwhile T.P. Scheme be relied upon in \n\n            the face of a contrary reservation in the subsequent D.P. Plan?\n\n\n\n\n59.              In   as   much   as   the   action   of   the   State   Government   could   not   be \n\n\ndefended under D.C. Rule 13.5, the appellants came up with the submission for \n\n\nthe first time in the High Court and then in this Court that under the erstwhile \n\n\nTown   Planning   Scheme,   this   F.P.   No.   110   could   be   developed   for   residential \n\n\npurposes, and that purpose subsisted in spite of the subsequent reservation for a \n\n\npublic purpose on that plot of land under the D.P. Plan.  \n\n\n\n60.              It was pointed out that a Town Planning Scheme was framed under \n\n\nthe then Bombay Town Planning Act of 1915 for Pune City to become effective  \n\n\nfrom   1.3.1931.     Regulation   14   of   the   Principal   scheme   framed   under   that   Act \n\n\nprovided for the areas included in the scheme which were intended mainly for \n\n\nresidential purposes wherein this plot was included as original plot No. 230\/C.  It \n\n\nwas subsequently allotted  F.P. No. 110.   There was no reservation on this plot \n\n\nfor any public purpose.  The 1915 Act was repealed and replaced by the Bombay \n\n\nTown   Planning   Act   1957   w.e.f.  1.4.1957  whereunder   the   concept   of   a \n\n\nDevelopment Plan was introduced.  However, by virtue of Section 90 of the 1954 \n\n\n                                               48\n\n\nAct the previous schemes were saved. The erstwhile Town Planning scheme as  \n\n\nvaried,   was   sanctioned   by   the   State   Government   w.e.f.  15.8.1979,  and \n\n\nthereunder the permissible user of F.P. No. 110 continued to be  residential.   In \n\n\nthe   meanwhile,   in   exercise   of   its   power   under   the   1954   Act,   the   State  \n\n\nGovernment   sanctioned   the   Development   Plan   of   Pune   City   w.e.f.   15.8.1966 \n\n\nwhereunder F.P. No. 110-112 were reserved for a garden.   The 1954 Act was \n\n\nrepealed  and replaced  by the  MRTP  Act 1966 w.e.f.  11.1.1967.     By virtue of  \n\n\nSection 165 of the MRTP Act, however, the erstwhile Principal T.P. scheme (as \n\n\nvaried), as well as the D.P. Plan were both saved.  Subsequently, when the D.P.  \n\n\nPlan of Pune City was revised in 1982 and finalized in 1987 under the provisions  \n\n\nof the MRTP Act, the reservation on the plot was initially proposed to be changed \n\n\nfor a play-ground, but ultimately shifted for a primary school in the final 1987 DP \n\n\nPlan.  \n\n\n\n61.             It is contended on behalf of the landowner and the developer that \n\n\nthe permission for the user of the concerned plot of land for residential purposes \n\n\nunder the T.P. Scheme effective from 15.8.1979 continued to survive by virtue of \n\n\nthe   saving   clause   under   Section   165(2)   of   the   MRTP   Act,   and,   therefore,   the \n\n\norder   passed   by   the   Government   on   3.9.1996   as   well   as   the   commencement \n\n\ncertificates were valid even on that count.   It is submitted that until the Town \n\n\nPlanning   scheme   is   varied   under   Section   39   read   with   92   of   MRTP   Act,   the  \n\n\nproposals in the Final Development Plan of 1987 cannot have any effect on the \n\n\nland   covered   by   the   erstwhile   Town   Planning   scheme.   The   Development   Plan \n\n\nand Town Planning scheme will both have their independent operation until the \n\n\n                                                49\n\n\nTown Planning scheme is varied to bring it in accord with the Development Plan. \n\n\nAs noted earlier that right from 8.5.1979, when the landowner issued purchase \n\n\nnotice, and led the State Government and PMC to acquire the plot of land, this \n\n\nplea was never raised (and the High Court would have been within its rights not \n\n\nto entertain this plea on the ground of acquiescing into the change of user under  \n\n\nthe D.P. Plan).  The plea having been considered and rejected in the impugned  \n\n\njudgment,   is   canvassed   once   again   in   this   Court.     To   consider   this   plea,   it  \n\n\nbecomes necessary to examine the relevant provisions of the Act.\n\n\n\n\n\n        Relevant provisions of the Act in the context of the D.P. Plan as \n\n\n        against the erstwhile T.P. Scheme\n\n\n\n62.             The preamble of the MRTP Act shows that this is an Act to make \n\n\nprovisions for:\n\n\n(1) planning the development and use of land in regions established for                     that \n\n\n    purpose and for constitution of regional planning boards  therefor,\n\n\n(2) to make better provisions for the preparation of development plans                      with   a \n\n\n    view to ensuring that T.P. Schemes are made in the proper                       manner   and \n\n\n    their execution is made effective,\n\n\n(3) to   provide   for   the   creation   of   new   towns   by   means   of   development \n\n\n    authorities,\n\n\n(4) to make provisions for the compulsory acquisition of land required for public  \n\n\n    purposes in respect of the plans, and\n\n\n                                                50\n\n\n(5) for purposes connected with the matters aforesaid.\n\n\n\n63.      (i)     Chapter I of the Act contains the Preliminary provisions.  Chapter II \n\n\nof   the   Act   is   concerning   the   Regional   Plans.     Chapter   III   is   about   the  \n\n\nDevelopment   Plan,   and   Chapter   IV   about   Control   of   Development   and   Use   of \n\n\nLand included in Development Plans.  Chapter V is about the T.P. Schemes.  \n\n\n\n(ii)             Section 3 of the Act permits the State Government to establish any \n\n\narea in the State to be a Region.  A Regional Plan is supposed to be prepared for \n\n\nvarious   subjects   which   are   mentioned   in   Section   14   of   the   Act.     The \n\n\n`Development Plan' is defined under Section 2 (9) of the Act as a plan for the  \n\n\ndevelopment or re-development of the area within the jurisdiction of a planning \n\n\nauthority.     Section   2   (19)   defines   the   Planning   Authority   to   mean   a   local \n\n\nauthority,   and   it   includes   some   other   specified   authorities   also.     There   is   no \n\n\ndispute that the development  plan has to be prepared  `in accordance with the  \n\n\nprovisions of a Regional plan' which is what is specifically stated in Section 21 (1)  \n\n\nof the Act.  \n\n\n\n(iii)            It   is,   however,   disputed   by   the   developer   that   the   T.P.   scheme \n\n\nwhich   is   normally   supposed   to   be   a   detailed   scheme   for   a   smaller   part   of   a \n\n\nMunicipal Area has necessarily to be in consonance with the development plan. \n\n\nAs against this submission we have the mandate of Section 39 of the Act, which \n\n\nreads as follows:-\n\n\n                 \"39.   Variation   of   town   planning   scheme   by  \n                 Development Plan. \n\n\n                                                 51\n\n\n               Where   a   final   Development   plan   contains   proposals   which  \n        are in variation, or modification of those made in a town planning  \n        scheme   which   has   been   sanctioned   by   the   State   Government  \n        before   the   commencement   of   this   Act,   the   Planning   Authority  \n        shall vary such  scheme suitably  under section  92 to the extent  \n        necessary by the proposals made in the final Development plan.\"\n\n\n                 This Section states that the T.P. scheme shall be suitably varied to \n\n\nthe   extent   necessary   wherever   the   final   development   plan   contains   proposals \n\n\nwhich   are   in   variation   or   modification   of   the   proposals   contained   in   the   T.P. \n\n\nScheme.  In the instant case, we are concerned with the final development plan \n\n\nof 1987 which contains the reservation for a Primary School on F.P. No.110 as \n\n\nagainst  the plot  being  placed  in a residential  zone  in the final T.P.  scheme of \n\n\n1979.     It   is   submitted   by   the   appellant   that   the   planning   authority   may   take  \n\n\nsteps to vary the T.P.  scheme suitably  to bring  it  in consonance  with the  D.P  \n\n\nplan, but until that is done, the provisions in the T.P. scheme will survive.  The  \n\n\nHigh Court has rejected this submission by holding that the D.P. plan overrides  \n\n\nthe T.P. Scheme. \n\n\n\n64.              As noted above, Section 39 lays down that the T.P. Scheme is to be \n\n\nvaried   suitably   in   accordance   with   the   D.P.   Plan   under   Section   92   of   the   Act. \n\n\nSection 92 appears in Chapter V which is on Town Planning schemes.  The first \n\n\nsection in this chapter V is Section 59.  Section 59 reads as follows:-\n\n\n                 \"59.   Preparation   and   contents   of   Town   Planning  \n        Scheme\n\n\n                 (1)  Subject to the provisions of this Act or any other law for  \n        the time being in force-\n                 (a) a Planning Authority may for the purpose of implementing  \n        the  proposals  in  the  final  Development  Plan,   prepare   one or  more  \n        town   planning   schemes   for   the   area   within   its   jurisdiction,   or   any  \n        part thereof;\n\n\n                                                  52\n\n\n                 (b) a town  planning  scheme may make provision  for any of  \n        the following matters, that is to say-\n                         (i) any of the matters specified in section 22;\n                         (ii)   the   laying   out   or   re-laying   out   of   land,   either  \n                         vacant   or   already   built   upon,   including   areas   of  \n                         comprehensive development;\n                         (iii) the suspension, as far as may be necessary for  \n                         the proper carrying out of the scheme, of any rule,  \n                         by-law,   regulation,   notification   or   order   made   or  \n                         issued   under   any   law   for   the   time   being   in   force  \n                         which the Legislature of the State is competent to  \n                         make;\n                         (iv)   such   other   matter   not   inconsistent   with   the  \n                         object of this Act, as may be directed by the State  \n                         Government.\n                 (2) In making provisions in a draft town planning scheme for  \n        any of the matter referred to in clause (b) of sub-section (1), it shall  \n        be lawful for a Planning Authority with the approval of the Director  \n        of   Town   Planning   and   subject   to   the   provisions   of   section   68   to  \n        provide for suitable amendment of the Development plan.\"\n\n\n\nAs can  be  seen, Section  59 states two things: firstly  the  opening  part  of sub-\n\n\nsection 1 of Section 59 states that the T.P. scheme is to be prepared \"subject to  \n\n\nthe   provisions   of   this   Act\".     Thereafter,   Sub-section   1(a)   of   this   section \n\n\nspecifically   states   that   the   planning   authority   is   to   prepare   one   or   more   T.P. \n\n\nschemes for the area within its jurisdiction \"for the purpose of implementing the \n\n\nproposals in the final Development Plan\".  Thus, Section 39 read with Section 59  \n\n\ndo indicate the approach of legislature, namely, superiority of the D.P. plan over  \n\n\nthe T.P. scheme.\n\n\n\n65.              The learned senior counsel for the developer, Shri Naphade relied \n\n\non the provisions contained  in Section  59 (1) (b) (i), and 59 (2) of the Act in \n\n\nsupport of his arguments.   Section 59 (1) (b) (i) provides that a town planning  \n\n\nscheme may make provision amongst others for any of the matters specified in  \n\n\n                                                53\n\n\nSection 22 of the Act.  Section 22 lays down as to what ought to be the contents  \n\n\nof   a   Development   Plan.     Section   59   (2)   states   that   in   making   the   draft   T.P. \n\n\nscheme for any of the matters referred to in sub-section 1 (b), it shall be lawful \n\n\nfor a planning authority to provide for suitable amendments of the Development \n\n\nPlan.     It   is,   therefore,   submitted   that   there   is   no   primacy   between   the  \n\n\nDevelopment Plan and the T.P. scheme.   It is contended that if the purpose of  \n\n\nthe   T.P.   Scheme   is   only   to   implement   the   Development   Plan,   it   will   militate \n\n\nagainst the plain reading of Section 51 (2) and 59 (1) (b) and that, in such a  \n\n\ncase, Section 59 (1) (b) will become otiose.  Shri Naphade, therefore, submitted \n\n\nthat the D.P. Plan and the T.P. Scheme both are of equal strength.  \n\n\n\n66.              While   examining   this   submission,   we   must   note   that   Section   39 \n\n\nrequires the T.P. scheme to be varied to the extent necessary in accordance with \n\n\nthe final Development Plan.  The provision in Section 59 (1) (b) (i) is infact made  \n\n\nto   see   to   it   that   there   is   no   conflict   between   the   T.P.   scheme   and   the \n\n\nDevelopment Plan.  Otherwise, the question will arise as to what meaning will be \n\n\ngiven to Section 59 (1) (a) which specifically states that the T.P. scheme is to be  \n\n\nprepared for the purpose of implementing the proposals in the final Development \n\n\nPlan. Merely because Section 59 (1) (b) provides that the T.P. scheme may make \n\n\nprovision for any of the matters specified in Section 22, the T.P. scheme cannot  \n\n\nbe placed on the same pedestal as a Development Plan.  Section 59 (2) is only \n\n\nan   enabling   provision.   It   may   happen   that   in   a   given   situation   a   suitable \n\n\namendment   of   the   Development   Plan   may   as   well   become   necessary   while \n\n\nseeing to it that the T.P. scheme is in consonance with the Development Plan. \n\n\n                                                  54\n\n\nSection 59 (2) will only mean that the legislature has given an elbow room to the \n\n\nplanning   authority  to   amend   the  Development  Plan   if   that  is  so  necessary,   so \n\n\nthat  there is no conflict  between  the T.P.  Scheme  and  the D.P.  Plan.    In fact \n\n\nwhat   is   indicated   by   stating   that   \"it   shall   be   lawful   to   carry   out,   such   an  \n\n\namendment\"   is   that   normally   such   a   reverse   action   is   not   expected,   but   in   a  \n\n\ngiven case if it becomes so necessary, it will not be unlawful.  Use of this phrase \n\n\nin fact shows the superiority of the D.P. Plan over the T.P. scheme.  Besides, the \n\n\nphrase   put   into   service   in   this   sub-section   is   only   `to   provide   for   a   suitable  \n\n\namendment'.  This enabling provision for an appropriate amendment in the D.P. \n\n\nplan cannot therefore, be raised to the level of the provision contained in Section  \n\n\n39 which mandates that the planning authority shall vary the T.P. scheme if the \n\n\nfinal   D.P.   Plan   is   in   variation   with   the   T.P.   Scheme   sanctioned   before   the \n\n\ncommencement   of   the   MRTP   Act.     It   also   indicates   that   subsequent   to   the \n\n\ncommencement of the Act, a T.P. Scheme will have to be inconsonance with the  \n\n\nD.P.  Plan.   Similarly,  Section  59 (1) (b) (i)  cannot take away the force  of  the \n\n\nprovision contained in Section 59 (1) (a) of the Act.   As noted above, Section 39 \n\n\nspecifically directs that the planning authority shall vary the T.P. scheme to the  \n\n\nextent   necessary   by   the   proposal   made   in   the   final   Development   Plan,   and \n\n\nSection   59   (1)   (a)   gives   the   purpose   of   the   T.P.   scheme,   viz.   that   it   is   for \n\n\nimplementing   the   proposals   contained   in   the   final   Development   Plan.     Under \n\n\nSection 31 (6) of the act, a Development plan which has came into operation is  \n\n\nbinding on the planning authority.  The Planning Authority cannot act contrary to  \n\n\nD.P. plan and grant Development permission to defeat the provision of the D.P.  \n\n\n                                                55\n\n\nplan.     Besides,   it   cannot   be   ignored   that   a   duty   is   cast   on   every   planning \n\n\nauthority   specifically   under   Section   42   of   the   Act   to   take   steps   as   may   be  \n\n\nnecessary to carry out the provisions of the plan referred in Chapter III of the  \n\n\nAct,   namely   the   Development   Plan.     Section   46   of   the   Act   also   lays   down \n\n\nspecifically   that   the   planning   authority   in   considering   an   application   for \n\n\npermission   for   development   shall   have   \"due   regard\"   to   the   provisions   of   any \n\n\ndraft or any final plan or proposal submitted or sanctioned under the Act.     It  \n\n\nindicates that the moment a Draft Plan is proposed, a permission for a contrary  \n\n\ndevelopment can no more be granted, since it will lead to a situation of conflict.  \n\n\nSection 52 of the Act in fact provides for penalty for unauthorised development  \n\n\nor for use otherwise then in conformity with the development plan.  Thus, when \n\n\nit comes to the development in the area of a local authority, a conjoint reading \n\n\nof the relevant sections makes the primacy of the Development Plan sufficiently  \n\n\nclear.\n\n\n\n67.             Much emphasis was laid on Section 69 (6) which reads as follows:-\n\n\n                \"(6)  The provisions of Chapter IV shall, mutatis mutandis,  \n       apply in relation to the development and use of land included in a  \n       town planning scheme in so far as they are not inconsistent with  \n       the provisions of the Chapter.\"\n\n\n                It was, therefore, submitted that thus the provisions of Chapter IV  \n\n\nwhich   are   about   the   Control   of   Development   and   use   of   land   included   in   the \n\n\nDevelopment Plan, are mutatis mutandis applicable to the development and the \n\n\nuse of land included in the T.P. scheme, and therefore  the D.P. plan and T.P.  \n\n\nscheme are on par.\n\n\n                                                 56\n\n\n68.              Now, it is material to note that sub-sections (1) to (5) of Section 69 \n\n\noperate when the draft T.P. scheme is under preparation.   Sub-section (6) will  \n\n\nhave to be read on that background because this sub-section itself states that \n\n\nprovisions   of   Chapter   IV  will   apply   in   relation   to   the   development   of   the   land \n\n\nincluded in a T.P. scheme \"in so far as it is not inconsistent with the provision of  \n\n\nthis Chapter\", i.e. Chapter V on Town Planning Schemes wherein Section 69 is \n\n\nplaced.    Chapter  IV is  on  control of  Development  and  use  of  land  included  in \n\n\nDevelopment Plans.   And as noted above, Section 59 (1) (a) which is the first \n\n\nsection of Chapter V clearly contains the direction that the T.P. scheme is to be \n\n\nprepared for the purpose of implementing the proposals in the final Development \n\n\nPlan.   Therefore, merely because by incorporating the provisions of Chapter IV \n\n\nthose provisions are made applicable to T.P. schemes, the mandate of Section 59 \n\n\n(1) (a) cannot be lost sight of.\n\n\n\n69.              It   is   then   submitted   by   the   appellant   that   the   Development   Plan \n\n\nand   the   T.P.   scheme   operate   independent   of   each   other,   and,   until   the   State \n\n\nGovernment exercises its power of eminent domain under the Development Plan, \n\n\nand acquire  the land, the landowner  can develop  his property  as per the user \n\n\npermitted under the T.P. scheme.  In view of the scheme of the relevant sections  \n\n\nand particularly Section 46 which we have noted above, this submission cannot \n\n\nbe accepted.  It will mean permitting a development contrary to the provisions of  \n\n\nthe Development Plan, knowing fully well that the user under the T.P. scheme is \n\n\nat   variance   with   the   Development   Plan.     Any   such   interpretation   will   make \n\n\nprovisions of Section 39, 42, 46 and 52 meaningless.  \n\n\n                                                57\n\n\n70.             There is one more aspect of the matter.  Section 43 of the Act lays \n\n\ndown   that   after   the   date   on   which   the   declaration   of   intention   to   prepare   a \n\n\nDevelopment  Plan is published,  no person shall carry out any development  on \n\n\nland without the permission of the Planning Authority.  The principal part of this \n\n\nsection reads as follows:-\n\n\n                \"43. Restrictions on development of land\n\n\n                After   the   date   on   which   the   declaration   of   intention   to  \n        prepare   a   Development   plan   for   any   area   is   published   in   the  \n        Official   Gazette   [or   after   the   date   on   which   a   notification  \n        specifying any undeveloped area as a notified area, or any area  \n        designated   as   a   site   for   a   new   town,   is   published   in   Official  \n        Gazette] no person shall institute or change the use of any land  \n        or carry out any development of land without the permission in  \n        writing of the Planning Authority.\"\n\n\n\n71.             This   section   will   have   to   be   read   along   with   the   requirement  \n\n\nprovided in Section 39.   Section 39 provides for a T.P. Scheme sanctioned and  \n\n\nsubsisting   prior   to   the   Development   Plan.     The   section   mandates   that   such   a \n\n\nprior scheme shall be varied to the extent necessary by the proposals made in \n\n\nthe  final  Development  Plan.    Section   43  provides   that  once   the  declaration   of \n\n\nintention to prepare a Development Plan is gazetted, no development contrary  \n\n\nthereto   can   be   permitted.     As   provided   under   Section   59   (1)   (a),   the   town \n\n\nplanning   scheme   is   to   be   prepared   for   the   purpose   of   implementing   the \n\n\nproposals in the final Development Plan.   Therefore, even if such a variation as  \n\n\ndirected under Section 39 does not take place, the land cannot be put to use in \n\n\nany way in contradiction with the provision in the D.P. Plan.  In the instant case, \n\n\nwe have a provision of the T.P. Scheme effective from 15.8.1979 as against the  \n\n\nD.P. Plan containing a contrary provision which was notified on 18.9.1982.  Shri \n\n\n                                                58\n\n\nDholakia, learned senior counsel appearing for the State Government, therefore, \n\n\nrightly submitted that in view of Section 165 of the MRTP Act, if the construction  \n\n\nwas completed, partly started or plans were submitted, or any such appropriate \n\n\nsteps were taken prior to 18.9.1982, the same could have been permitted.  Once  \n\n\nthe   State   Government   published   the   draft   Development   Plan   on   18.9.1982, \n\n\nproviding   for   the   reservation   for   a   primary   school,   any   construction   contrary \n\n\nthereto   could   not   be   permitted.     This   can   only   be   the   interpretation   of   the  \n\n\nprovisions contained in Section 39 read with Section 43 and Section 165 of the \n\n\nMRTP  Act.   For convenience,  we may refer  to Section  165 (1) and (2),  which \n\n\nread as follows:-\n\n\n\n\n\n                \"165. Repeal and saving.\n\n\n                (1)      The Bombay Town Planning Act, 1954 and sections  \n                         219 to 226A and clause (xxxvi) of sub-section (2) of  \n                         section 274 of the Maharashtra Zilla Parishads and  \n                         Panchayat Samitis Act, 1961, are hereby repealed.\n\n\n                (2)      Notwithstanding   the   repeal   of   the   provisions  \n                         aforesaid,   anything   done   or   any   action   taken  \n                         (including   any   declaration   of   intention   to   make   a  \n                         development   plan   or   town   planning   scheme,   any  \n                         draft   development   plan   or   scheme   published   by   a  \n                         local   authority,   any   application   made   to   the   State  \n                         Government   for   the   sanction   of   the   draft  \n                         development plan or scheme, any sanction given by  \n                         the   State   Government   to   the   draft   development  \n                         plan or scheme or any part thereof, any restriction  \n                         imposed   on   any   person   against   carrying   out   any  \n                         development work in any building or in or over any  \n                         land or upon an owner of land or building against  \n                         the erection or re-erection of any building or works,  \n                         any   commencement   certificate   granted,   any   order  \n                         or   suspension   of   rule,   bye-law,   regulation,  \n                         notification   or   order   made,   any   purchase   notice  \n\n\n                                                 59\n\n\n                         served on a local authority and the interest of the  \n                         owner   compulsorily   acquired   or   deemed   to   be  \n                         acquired by it in pursuance of such purchase notice,  \n                         any revision of development plan, any appointment  \n                         made   of   Town   Planning   Officer,   any   proceeding  \n                         pending before, and decisions of, a Town Planning  \n                         Officer, any decisions of Board of Appeal, any final  \n                         scheme   forwarded   to,   or   sanctioned,   varied   or  \n                         withdrawn by the State Government, any delivery of  \n                         possession enforced, any eviction summarily made,  \n                         any   notice   served,   any   action   taken   to   enforce   a  \n                         scheme,   any   costs   of   scheme   calculated   and   any  \n                         payments   made   to   local   authorities   by   owners   of  \n                         plots included in a scheme, any recoveries made or  \n                         to   be   made   or   compensation   awarded   or   to   be  \n                         awarded   in   respect   of   any   plot,   any   rules   or  \n                         regulations   made   under   the   repealed   provisions  \n                         shall be deemed to have been done or taken under  \n                         the   corresponding   provisions   of   this   Act,   and   the  \n                         provisions   of   this   Act   shall   have   effect   in   relation  \n                         thereto.\"\n\n\n\n72.               The learned senior counsel Shri Virendra Tulzapurkar appearing for \n\n\nthe   tenants   went   to   the   extent   of   contending   that   by   provisions   in   the   T.P.  \n\n\nScheme are superior to those in the D.P. Plan.  In support to his submission he  \n\n\nrelied   upon   the   judgment   of   a   Division   Bench   of   Gujarat   High   Court   in \n\n\nGordhanbhai Vs. The Anand Municipality & Ors.  reported in  XVI (1975) \n\n\nGujarat   Law   Report   558  which   was   under   the   Bombay   Town   Planning   Act \n\n\n1954 (the 1954 Act for short) as applicable  to Gujarat.   The petitioner therein \n\n\nwas aggrieved by the development permission granted by the Anand Municipality  \n\n\nto the respondents Nos. 4 to 12 to put up a structure on the plot adjoining to his \n\n\nplot.       One   of   the   objections   raised   by   the   petitioner   was   that   the   disputed  \n\n\nconstruction  did  not observe  the  margins  prescribed  in the  regulations  framed \n\n\nunder the Development Plan (comparable to the D.C. regulations in the present \n\n\n                                                   60\n\n\ncase).   The respondents pointed out that the regulations which were published  \n\n\nand sanctioned by the State Government as a part of the T.P. scheme specifically \n\n\nprovided  that no  margin  should  be  imposed  on  the particular  final plot  of  the  \n\n\nrespondents Nos. 4 to 12.   In view thereof, the Division Bench in para 6 of its \n\n\njudgment   referred   to   Section   18   (2)   (k)   of   the   1954   Act   which   specifically \n\n\nprovided that the Town Planning scheme may provide for the suspension, so far \n\n\nas may be necessary for the proper carrying out of the scheme of any rule, by-\n\n\nlaw, regulation, notification or order made or issued under any Act of the State  \n\n\nLegislature.    Since that had been  done,  the permission for construction  in the  \n\n\nparticular   case   could   not   be   faulted.     It   was   in   this   context   that   the   Division  \n\n\nBench observed that the provisions of the scheme which are contrary to those \n\n\nregulations shall prevail over the same. It is material to note that this provision in \n\n\nSection 18 (2) (k) of the 1954 Act is pari-materia to Section 59 (1) (b) (iii) of the \n\n\nMRTP Act.   It is also material to note that like Section 59 (1) (a) of the MRTP \n\n\nAct, Section 18 (1) of the 1954 Act provides as follows:-\n\n\n\n\n\n                 \"Making and contents of town planning scheme\n\n\n                 18.     Subject to the provisions of this Act or any other law  \n                         for the time being in force:-\n                          (1)      a   local   authority   for   the   purpose   of  \n                                   implementing   the   proposals   in   the   final  \n                                   development   plan   may   make   one   or   more  \n                                   town   planning   schemes   for   the   area   within  \n                                   its jurisdiction or any part thereof;\"\n\n\n                 Section 18 of the 1954 Act as well as Section 59 of the MRTP Act \n\n\nprovide  for suspension of the regulations in a given case by making a specific  \n\n\n                                                 61\n\n\nprovision in the T.P. scheme, which is basically with the object of implementing \n\n\nthe proposals in the Final Development Plan. This judgment cannot therefore be \n\n\nrelied   upon   to   canvass   a   general   proposition   that   the   provisions   in   the   Town \n\n\nPlanning scheme are superior to the Development Plan.  \n\n\n\n                 The need for a holistic interpretation \n\n\n\n73.              The provision  of  a statute are required  to  be read  together  after \n\n\nnoting   the   purpose   of   the   Act,   namely   that   there   should   be   an   orderly  \n\n\ndevelopment   in   the   region,   local   authority   as   well   as   in   the   town   area.     The \n\n\nMRTP Act does not envisage a situation of conflict.   Therefore one will have to \n\n\niron   out   the   edges   to   read   those   provisions   of   the   Act   which   are   slightly  \n\n\nincongruous, so that all of them are read in consonance with the object of the  \n\n\nAct, which is to bring about an orderly and planned development.  The provision  \n\n\nof   Section   165   can   not   be   read   to   mean   a   right   to   carry   out   a   development  \n\n\ncontrary to the Development Plan, and in any case without a valid development  \n\n\npermission particularly when the landowner had not taken any step in pursuance \n\n\nto the erstwhile T.P. scheme nor had objected to the changes brought in by the \n\n\nauthorities   by   following   the   due   process   of   law.     The   submissions   of   Shri  \n\n\nNaphade and Tulzapurkar with respect to the alleged conflict between T.P. and \n\n\nD.P. can not, therefore, be accepted.\n\n\n\n74.              The   observations   of  O.   Chinnappa   Reddy   J.   in   para   33   of   the \n\n\nJudgment in  Reserve Bank of India Vs. Peerless Corpn.  reported in  [AIR \n\n\n1987 SC 1023 = 1987 (1) SCC 424] are instructive in this behalf - \n\n\n                                                62\n\n\n                \"33.  Interpretation   must   depend   on   the   text   and  \n        the context. They are the bases of interpretation. One may well  \n        say  if the text  is  the  texture,  context   is  what  gives  the colour.  \n        Neither   can   be   ignored.   Both   are   important.                    That  \n        interpretation   is   best   which   makes   the   textual  \n        interpretation   match   the   contextual.  A   statute   is   best  \n        interpreted   when   we   know   why   it   was   enacted.   With   this  \n        knowledge, the statute must be read, first as a whole and then  \n        section by section, clause by clause, phrase by phrase and word  \n        by word. If a statute is looked at, in the context of its enactment,  \n        with the glasses of the statute-maker, provided by such context,  \n        its  scheme,  the  sections,  clauses,  phrases  and words  may  take  \n        colour  and  appear  different   than  when   the statute  is   looked  at  \n        without the glasses provided by the context. With these glasses  \n        we   must   look   at   the   Act   as   a   whole   and   discover   what   each  \n        section, each clause, each phrase and each word is meant and  \n        designed to say as to fit into the scheme of the entire Act.   No  \n        part   of   a   statute   and   no   word   of   a   statute   can   be  \n        construed in isolation. Statutes have to be construed so  \n        that   every   word   has   a   place   and   everything   is   in   its  \n        place.\"......\n\n                                                       (emphasis supplied)\n\n\n\n75.             The   counsel   for   the   landowner   criticised   the   impugned   judgment \n\n\nfor accepting the observations of another Division Bench of Bombay High Court \n\n\nin  Rusy Kapadia v. State of Maharashtra  reported in  [1998 (2) ALL MR \n\n\n181], In that matter certain private land was reserved in the D.P. plan of Pune \n\n\nfor a public park. The landowner had no objection to the same, but the land was  \n\n\nnot acquired.  The landowner sold the land to some other persons, who moved \n\n\nthe Government for de-reservation of the land to use it for residential purpose. \n\n\nThe   Government   invited   objections   under   Section   37   of   the   MRTP   Act   and \n\n\nthereafter   issued   the   notification   granting   de-reservation.     At   that   stage   some \n\n\nother citizens filed this PIL challenging that notification on the ground that the \n\n\nland was ear-marked for environmental purposes and should not be de-reserved.  \n\n\nIt was submitted in that matter on behalf of the purchasers of the land that in  \n\n\n                                              63\n\n\nthe T.P. scheme the use for residential purpose was permissible, and since the \n\n\nT.P. scheme was sanctioned subsequent to the development plan, it shall prevail.  \n\n\nRejecting that argument, the Division Bench observed in para 8 of its judgment \n\n\nas follows:-\n\n\n                \"......  We heard and also perused  the provisions with the  \n       assistance   of   the   Ld.   Counsel   for   the   parties.     Town   Planning  \n       Scheme is provided and dealt with by Chapter V of the Act.  This  \n       Chapter has beginning with Section 59 and opening of the section  \n       itself refers that the provisions of this Chapter are subject to the  \n       provisions of the Act.  The provisions precedent to section 59 are  \n       from section 1 to section 58 which include section 31, sub-section  \n       (6) which proclaims that the Draft Plan is final and binding on the  \n       Planning Authority.   As such the binding force would carry even  \n       when   they   anyway   deal   with   the   Town   Planning   Scheme.  \n       Besides this section  39 and section  42 of the Act unequivocally  \n       indicate that the Development Plan has to definitely prevail over  \n       anything and everything including the Town Planning Scheme.  In  \n       view of this the submission is without any merit.\"\n\n\n\n76.             The Division Bench deciding Rusy Kapadia's case (supra) referred \n\n\nto para 25 of the Judgment of this Court in Bangalore Medical Trust Vs. B.S. \n\n\nMuddapa  reported   in  [1991   (4)   SCC   54]  to   emphasize   the   importance   of \n\n\nprotecting environment. The High Court quashed the decision of the Government \n\n\ngranting  de-reservation but kept it in abeyance for a period  of two years, and \n\n\ndirected that if during this period the private respondents (i.e. purchasers of the \n\n\nland) provided adequate green area as envisaged in the development plan, this \n\n\norder will not operate.   This order of the High Court in  Rusy Kapadia  (supra) \n\n\nwas challenged by those private respondents, the judgment in which Appeal is \n\n\nreported   in   the   case   of  Raju   S.   Jethmalani   Vs.   State   of   Maharashtra \n\n\nreported in [2005 (11) SCC 222].  This Court in the case of Raju Jethmalani \n\n\n                                                64\n\n\nnoted that the observations in Bangalore Medical Trust were in the context of \n\n\nSection 38 (A) of that Act.   The Court also noted that though the development  \n\n\nplan   provided   the   area   for   the   garden,   no   proceedings   for   acquisition   of   the \n\n\nconcerned plot had ever been initiated.  In that context, the court observed that  \n\n\nthere is no prohibition for preparing the development plan comprising the private  \n\n\nland,   but   the   plan   cannot   be   implemented   unless   the   said   private   land   was \n\n\nacquired.  It was for this reason that the court allowed the appeal and set aside \n\n\nthe order in  Rusy Kapadia's case, but this time directed the petitioners of the \n\n\nPIL (i.e. Rusy Kapadia & Ors.) to raise funds in six months if they wanted the \n\n\npark to be maintained,  in order  to assist the Government to acquire  the land,  \n\n\nfailing which it will be open to the appellants to develop the land.  This direction  \n\n\nwas   given   because   the   State   Government   and   PMC   had   expressed   inability   to \n\n\nraise the necessary funds to acquire the concerned plot of land.   It is material to \n\n\nnote   that   in  Raju   Jethmalani's  case   this   Court   did   not   deal   with   the \n\n\ncontroversy concerning the superiority of the Development Plan vis-a-vis the T.P. \n\n\nscheme,   nor   can   the   Judgment   be   read   as   laying   down   a   proposition   that \n\n\ndevelopment   contrary   to   the   D.P.   plan   is   permissible.   The   observations   in   the \n\n\ncase of Rusy Kapadia as quoted above are approved in the presently impugned \n\n\njudgment, and have been once again reiterated by another Division Bench of the \n\n\nBombay   High   Court   in  Indirabai   Bhalchandra   Bhajekar   Vs.   The   Pune \n\n\nMunicipal Corporation and Ors., reported in [2009 (111) Bom LR 4251]. \n\n\nHaving noted the inter-relation  amongst the various sections of the statute, in \n\n\n                                                65\n\n\nour view, it cannot be said that the T.P. scheme is either superior or of equal  \n\n\nstrength as the Development Plan.\n\n\n\n77.             The   counsel   for   the   developer   then   relied   upon   the   judgment   of \n\n\nthis Court in Laxmi Narayan Bhattad Vs. State of Maharashtra reported in \n\n\n[2003 (5) SCC 413] for further supporting the submission in this behalf.  The \n\n\nappellant   in   this   case   was   allotted   an   alternative   plot   of   land   and   monetary  \n\n\ncompensation under an award when part of his land was acquired to implement  \n\n\nthe T.P. scheme finalized in 1987.   The appellant however wanted additionally \n\n\nthe   Transferable   Development   Rights   (TDR)   as   provided   under   Development \n\n\nControl   Regulations   framed   later   in   1991.     This   Court   declined   to   accept   the \n\n\nsubmission of the appellant.   It was held that the appellant will be eligible only  \n\n\nfor the benefits under the T.P. scheme, since the acquisition of his land was to  \n\n\nimplement   the   same.     The   D.C.   Regulations   of   1991   had   come   subsequently. \n\n\nThere   was   no   provision   for   TDR   under   the   T.P.   scheme   and   therefore,   the  \n\n\nappellant   could   not   get   T.D.R   which   are   provided   subsequently   in   the   D.C.  \n\n\nRegulations of 1991.  This judgment also cannot be read as laying down that the \n\n\nT.P. scheme will prevail over or is of equal strength as the D.P. plan.\n\n\n\n78.             Thus   from   the   analysis   of   the   relevant   provisions   and   the \n\n\njudgments it is clear that the right claimed under the erstwhile T.P. scheme could \n\n\nnot be sustained in the teeth of the reservation for a Primary school under the \n\n\n1987 D.P. plan.  The submission in this behalf cannot be accepted.\n\n\n                                                66\n\n\n        Additional   submissions   in   this   Court   in   defence   of   the \n\n        Government Order:-\n\n\n\n79.             The appellants came up with some more submissions in this Court. \n\n\nThey   submitted   that   the   shifting   was   protected   under   Rule   6.6.2.2,   and   the  \n\n\nreference to Rule 13.5 in the Government's order dated 3.9.1996 was erroneous. \n\n\nNow, this Rule 6.6.2.2 reads as follows:-\n\n\n                \"6.6.2.2  In   specific   cases   where   a   clearly   demonstrable  \n        hardship   is   caused   the   Commissioner   may   by   special   written  \n        permission\n                (i) Permit any of the dimensions\/provisions prescribed by  \n        these rules   to  be modified  provided   the relaxation  sought does  \n        not   violate   the   health   safety,   fire   safety,   structural   safety   and  \n        public   safety   of   the   inhabitants,   the   buildings   and   the  \n        neighborhood.     However,   no   relaxation   from   the   set   back  \n        required from the road boundary or FSI shall be granted under  \n        any circumstances.\n                While   granting   permissions   under   (i)   conditions   may   be  \n        imposed on size, cost or duration of the structure abrogation of  \n        claim of compensation payment of deposit and its forfeiture for  \n        non-compliance and payment of premium.\"\n\n\n                As can be seen from this Rule it provides for variations with respect \n\n\nto dimensions and structural requirements.  This rule 6.6.2.2 is a part of Rule 6 \n\n\nwhich contains the `Procedure for obtaining building permission\/ commencement \n\n\ncertificates'.   It does not deal with shifting of a particular reservation from one \n\n\nplot  to  another which  is covered  under  Rule  13.5 (with certain  restrictions)  to \n\n\nwhich we have already referred.  Thus Rule 6.6.2.2 has no application at all.\n\n\n\n80.             The   request   of   the   landowner   was   to   shift   the   reservation   of   a \n\n\nprimary   school   from   F.P.   No.   110,   and   to   grant   him   the   permission   for \n\n\ndevelopment under Section 45 of the Act.  It is also material to note that though  \n\n\nsubsequent to the Government orders, Commencement Certificates were issued, \n\n\n                                                  67\n\n\nthere was no order specifically setting aside the earlier order of the City Engineer \n\n\nof   PMC   passed   under   Section   45   of   the   MRTP   Act   rejecting   the   building \n\n\npermission by his letter\/order dated 6.11.1995.   We are, therefore, required to \n\n\ninfer   from   the   Commencement   Certificate   which   refers   to   Section   44   and   45 \n\n\n(alongwith other sections) that the appeal against the order of the City Engineer  \n\n\nis impliedly allowed under Section 47 of the Act.  This is because there is no such \n\n\nspecific mention of reversal of the order dated 6.11.1995 even in the aforesaid \n\n\norder of the State Government dated 3.9.1996.\n\n\n\n81.              It   was   therefore   contended   on   behalf   of   the   developer   that   the \n\n\norder passed by the Government made a reference to a wrong provision of law. \n\n\nIt was submitted that Section 47 was erroneously relied upon, and the order was \n\n\nin fact an order passed under Section 50 of the Act.  \n\n\n                 Section 50 reads as follows:-\n\n\n                 \"50.   Deletion   of   reservation   of   designated   land   for \n\n       interim draft of final Development Plan.\n\n\n                 (1)     The   Appropriate   Authority   (other   than   the   Planning  \n       Authority), if it is satisfied that the land is not or no longer required  \n       for   the   public   purpose   for   which   it   is   designated   or   reserved   or  \n       allocated in the interim or the draft Development plan or plan for  \n       the area of Comprehensive development or the final Development  \n       plan, may request--\n                          (a) the Planning Authority  to sanction the deletion  \n             of   such   designation   or   reservation   or   allocation   from   the  \n             interim or the draft Development plan or plan for the area of  \n             Comprehensive development, or\n\n                          (b) the State Government to sanction  the deletion  \n             of such designation or reservation or allocation from the final  \n             Development plan.\n\n                 (2)      On   receipt   of   such   request   from   the   Appropriate  \n         Authority,   the   Planning   Authority,   or   as   the   case   may   be,   the  \n         State Government may make an order sanctioning the deletion of  \n\n\n                                                68\n\n\n        such   designation   or   reservation   or   allocation   from   the   relevant  \n        plan:\n\n\n                 Provided that, the Planning Authority, or as the case may  \n        be, the State Government may, before making any order, make  \n        such enquiry as it may consider necessary and satisfy itself that  \n        such   reservation   or   designation   or   allocation   is   no   longer  \n        necessary in the public interest.\n\n                 (3)     Upon   an  order   under  sub-section   (2)   being  made,  \n        the land shall be deemed to be released from such designation,  \n        reservation, or, as the case may be, allocation and shall become  \n        available   to   the   owner   for   the   purpose   of   development   as  \n        otherwise   permissible   in   the   case   of   adjacent   land,   under   the  \n        relevant plan.\"\n\n\n\n                 As can be seen, Section 50 provides for deletion of a reservation at \n\n\nthe instance of an Appropriate authority (other than the planning authority) for  \n\n\nwhose benefit  the reservation  is made.    Such  is not the  present  case.    Under  \n\n\nsub-section (1) of Section 50, the appropriate authority has to be satisfied that  \n\n\nthe   land   is   not   required   for   the   public   purpose   for   which   it   is   reserved. \n\n\n\"Appropriate authority\" is defined under Section 2 (3) of the Act to mean a public \n\n\nauthority on whose behalf the land is designed for a public purpose in any plan \n\n\nor   scheme   and   which   it   is   authorised   to   acquire.     In   the   instant   case,   the \n\n\nacquiring body is PMC, and it will mean the general body of PMC.  Assuming that \n\n\nthe section applies in the instance case, the general body has to be satisfied that \n\n\nthe land is no longer required for the public purpose for which it is designed or \n\n\nreserved.  In the instant case, it is on the direction of the Minister of State that \n\n\nthe Municipal Commissioner has given a report which has been used by the State \n\n\nGovernment to pass an order of shifting the reservation from F.P. No.110.  The \n\n\nofficers   of   the   Planning   Authority   as   well   as   of   the   concerned   Government \n\n\n                                                 69\n\n\ndepartment were not in favour of deleting the reservation.  The Commissioner's \n\n\nopinion   could   not   have   been   treated   as   the   opinion   of   PMC.     Under   certain  \n\n\ncircumstances   the   Municipal   Commissioner   can   act   on   behalf   of   the   Municipal \n\n\nCorporation, and those sections are specifically mentioned in Section 152 of the \n\n\nMRTP   Act.     Section   50   is   not   one   of   those   sections   and,   therefore,   the   State  \n\n\nGovernment   could   not   have   made   any   such   order   sanctioning   the   deletion   of \n\n\nreservation on the basis of the report of the Municipal Commissioner.  Section 50 \n\n\nis, therefore, of no help to the appellants.\n\n\n\n82.              One of the sections which was pressed into service to defend the \n\n\ndirections   of   the   State   Government   dated   3.9.1996   and   29.7.1998   and   the \n\n\nactions of the Municipal Commission was Section 154 (1) of the MRTP Act.  This \n\n\nsection reads as follows:-\n\n\n                 \"154. Control by State Government\n\n\n                 (1)      Every   Regional   Board,   Planning   Authority   and  \n                 Development   Authority   shall   carry   out   such   directions   or  \n                 instructions as may be issued from time to time by the State  \n                 Government for the efficient administration of this Act.\n                 (2)      If in, or in connection with, the exercise of its powers  \n                 and   discharge   of   it   functions   by   any   Regional   Board,  \n                 Planning Authority or Development Authority under this Act,  \n                 any   dispute   arises   between   the   Regional   Board,   Planning  \n                 Authority   or   Development   Authority,   and   the   State  \n                 Government, the decision of the State Government on such  \n                 dispute shall be final.\"\n\n\n\n        It was submitted that the State Government was thus entrusted with the  \n\n\nover-all control in the interest of efficient administration, and its directions had to \n\n\nbe followed by the Planning Authority, and such directions could not be faulted \n\n\non  any count.    In a  similar  situation  in  Bangalore  Medical   Trust  (supra),  a \n\n\n                                                    70\n\n\nreservation for a public park was sought to be shifted for the benefit of a private  \n\n\nnursing home.   Amongst others Section 65 of the Bangalore Development Act, \n\n\n1976 was sought to be pressed into service which authorised the Government to  \n\n\nissue directions to carry out the purposes of the act.  This Court observed in para \n\n\n52   of   that   judgment   that   the   section   authorises   the   Government   to   issue \n\n\ndirections to ensure that provisions of law are obeyed and not to empower itself \n\n\nto   proceed   contrary   to   law.     In   the   present   matter,   it   is   to   be   seen   that   the  \n\n\nsection   provides   for   directions   or   instructions   to   be   given   by   the   State \n\n\nGovernment for the efficient administration of the Act.  This implies directions for \n\n\nthat purpose which are normally general in character, and not for the benefit of \n\n\nany   particular   party   as   in   the   present   case.     The   provisions   of   law   cannot   be \n\n\ndisregarded and ignored merely because what was done, was being done at the  \n\n\ninstance of the State Government.   Consequently, Section 154 cannot save the  \n\n\ndirections   issued   by   the   State   Government   or   the   actions   of   the   Municipal \n\n\nCommissioner in pursuance thereof.       \n\n\n\n83.               Thus,   the   reliance   on   these   provisions   is   of   no   use   to   the \n\n\nappellants.   It was submitted that while passing the order the Government has \n\n\nreferred to a wrong provision of law and reference to a wrong provision of law \n\n\ndoes not vitiate the order  if the order  can be traced  to a legitimate  source  of \n\n\npower.     Reliance   was   placed   on   the   judgment   of   this   Court   in  PR   Naidu  v. \n\n\nGovernment of Andhra  Pradesh<\/a>  (reported in  AIR 1977 SC 854) =  [1977 \n\n\n(3) SCC 160] and VL and Co. v. Bennett Coloman and Co. [AIR 1977 SCC \n\n\n1884] = [1977 (1) SCC 561].   In the instant case, however, the order of the \n\n\n                                                 71\n\n\nGovernment dated 3.9.1996 cannot be traced to any legitimate source of power, \n\n\nand therefore, the situation cannot be remedied by reference to other sources of \n\n\npower.   The Division Bench has therefore, rightly commented on this submission \n\n\nin paragraph  180 of its judgment that `the rub is that the action taken by the  \n\n\nPlanning authority was otherwise not legal and justified'.  It could not therefore \n\n\nbe justified by reference to other provisions of law because basically the decision \n\n\nitself was illegal. \n\n\n\n84.              Thus the submission canvassed on behalf of the appellants is that \n\n\nalthough the landowner never objected to the reservation either for a garden or \n\n\na primary school during the process of the revision of the D.P. Plan during 1982  \n\n\nto 1987, and although he had received the compensation for its acquisition, he \n\n\nretained   the   right   to   develop   the   property   for   residential   purposes   merely \n\n\nbecause   under   the   erstwhile   Town   Planning   scheme   residential   use   was \n\n\npermissible, and it is supposed to be saved under Section 165 (2) of the MRTP  \n\n\nAct.  However, as seen from the conjoint reading of Section 39, 42 and 46, and \n\n\nthe   scheme   of   the   Act,   such   a   submission   cannot   be   accepted.   That   apart, \n\n\nultimately   it   was   contended   on   his   behalf   the   deletion   of   the   reservation   of   a \n\n\nprimary  school on this plot  u\/s 37 of  the MRTP  Act  is not necessary, and the  \n\n\norder passed by the State Government in his favour can be explained u\/s 50 of  \n\n\nthe MRTP Act read with D.C. Rule 6.6.2.2.  As we have seen Section 50 as well \n\n\nas D.C. Rule 6.6.2.2. have no application to the present case, nor can the power \n\n\nof   the   State   Government   under   Section   154   of   the   Act   help   the   appellants.  \n\n\nBesides,   independent   of   one's   right   either   under   the   D.P.   Plan   or   the   T.P. \n\n\n                                                72\n\n\nScheme,   one   ought   to   have   a   permission   for   development   granted   by   the \n\n\nplanning authority traceable to an appropriate provision of law.   In the present \n\n\ncase there is none.   The appellants are essentially raising all these submissions \n\n\nto   justify   a   construction   which   is   without   a   valid   and   legal   development \n\n\npermission.   The appellants have gone on improving and tried  to change their \n\n\nstand from time to time with a view to justify Government's order in their favour. \n\n\nHowever, \"Orders are not like old wine becoming better as they grow older\" as \n\n\naptly   stated   by   Krishna   Iyer   J.   in   para   8   of  Mohinder   Singh   Gill   Vs.   Chief \n\n\nElection   Commissioner,   New   Delhi    reported   in  1978   (1)   SCC   405.  The \n\n\nsubmissions of the appellants in defence of the decision of the State Government \n\n\nare devoid of any merit and deserve to be rejected. \n\n\n\n        Legality of the acquisition of the land:\n\n\n        Whether the acquisition lapses on account of change of purpose \n\n        of acquisition\n\n\n\n85.             As   seen   earlier,   the   letter   of   the   landowner   had   led   to   the \n\n\nsubsequent steps for acquisition.   The landowner was interested in good return \n\n\nfor his land.  The tenants were interested only in the rehabilitation on the same \n\n\nplot of land.   That was their stand until the award dated 12.5.1983.   The Civil  \n\n\nCourt has held the acquisition for the changed purpose under the D.P Plan as \n\n\nbad   in   law   on   the   ground   that   the   initially   designated   public   purpose   for \n\n\nacquisition was changed.   Was the civil suit maintainable?   Was the view taken \n\n\nby the Civil Court a correct view?  We are required to go into that question also, \n\n\n                                               73\n\n\nsince the order of the Civil Court is sought to be defended by the landowner as  \n\n\nwell as by the developer.\n\n\n\n86.             The Learned Civil Judge Senior Division set aside the award by his \n\n\njudgment and decree dated 23.4.1990 on the ground that though the land was  \n\n\ninitially proposed to be acquired for a garden, it was ultimately to be used for \n\n\nanother public  purpose i.e.  setting  up a primary school.    It was contended  on \n\n\nbehalf of the developer that in the instant case the declaration under Section 6 \n\n\nof the L.A. Act was issued when the land was reserved for a garden, and the  \n\n\npurpose of acquisition must subsist as initially designated until the possession of \n\n\nthe land is taken.   The Court accepted the contention that the acquisition had \n\n\nlapsed   due   the   change   of   purpose   of   reservation   by   the   time   the   award   was \n\n\nmade.  In the instant case, the award was made on 12.5.1983, but pursuant to \n\n\nthe   award   the   possession   of   the   plot   was   not   taken   in   the   circumstances  \n\n\nmentioned earlier.  According to the appellant the acquisition was not complete, \n\n\nand   the   jurisdiction   to   further   continue   with   the   acquisition   was   no   longer \n\n\navailable.\n\n\n\n87.             Two judgments of Bombay High Court were relied upon on behalf \n\n\nof the appellants i.e. Industrial Development & Investment Company Pvt. \n\n\nLtd.   Vs.   State   of   Maharashtra  reported   in  1988   Mh.LJ   1027  (which   was \n\n\nrelied upon by the Learned Civil Judge Senior Division also), and  Santu Kisan \n\n\nKhandwe Vs. Special Land Acquisition Officer No. 2 Nasik & Ors reported \n\n\nin  1995   (1)   Mh.LJ   363,  in   support   of   the   proposition   that   the   purpose   of \n\n\nacquisition must subsists till vesting.    As far as the first judgment of the High  \n\n\n                                                74\n\n\nCourt in the case of Industrial Development Company is concerned, the same is \n\n\nabout the provisions of MRTP Act, and it has been specifically overruled by this \n\n\nCourt   in  Municipal   Corporation   of   Greater   Bombay  Vs.  Industrial \n\n\nDevelopment Investment Co. Pvt. Ltd. & Ors. reported in 1996 (11) SCC \n\n\n501.    It   was   a   case   where   the   concerned   parcel   of   land   situated   in   Dharavi, \n\n\nMumbai was acquired by the Municipal Corporation under the MRTP Act initially \n\n\nfor the setting up of a Sewage Purification Plant, but subsequently the land was \n\n\nsought to be used for the residential and commercial purposes of its employees, \n\n\nsince this Sewage Treatment Plant was shifted to another parcel of land.   This \n\n\nutilisation was held to be completely valid and permissible by K. Ramaswamy, J.  \n<\/pre>\n
88.             The appellants  before  us contended  that Majmudar,  J., the other <\/p>\n
Learned Judge deciding  the I.D.I Co’s. case had taken a different view on the  <\/p>\n
issue of change of user, and therefore, the issue remained undecided, and that <\/p>\n
the view taken by the Bombay High Court in the above referred two judgments <\/p>\n
deserved acceptance.   The appellants submitted that Majmudar, J. agreed with <\/p>\n
K. Ramaswamy, J. only to the extent  that the petition filed by the respondents <\/p>\n
in the High Court deserved to be dismissed on the ground of delay and laches.  <\/p>\n
As far as the ground of change of purpose is concerned, Majmudar J., expressed <\/p>\n
his different opinion in the following few sentences:-\n<\/p>\n<\/p>\n
                “33. Even though the proposal under Section 126(1) is for
\n        acquisition of land for a specified public purpose, if the planning
\n        authority   wants   to  acquire   the land  subsequently  for  any  other
\n        public   purpose   earmarked   in   the   modified   scheme   as   has
\n        happened in the present case that is if the appellant-Corporation
\n        which had initially proposed to acquire the land for extension of
\n        sewerage   treatment   plant   wanted   subsequently   to   acquire   the  <\/p>\n
                                                  75<\/span><\/p>\n
        same   land   for   its   staff   quarters   then   such   a   purpose   must   be
\n        specifically  indicated  in  the plan  meaning thereby  that the land
\n        must   be   shown   to   be   reserved   for   the   staff   quarters   of   the
\n        Corporation   and   then   the  Special   Planning   Authority   which   had
\n        become the appropriate planning authority, i.e., BMRDA would be
\n        required to issue a fresh proposal under Section 126(1) read with
\n        Section 40(3)(e) and Section 116 of the MRTP Act and follow the
\n        gamut   thereafter.   So   long   as   that   was   not   done   the   earlier
\n        proposal under Section 126(1) and the consequential notification
\n        by   the   State   Government   under   Section   126(2)   which   had   lost
\n        their efficacy could not be revitalised……….”<\/p>\n
89.              The appellants relied upon the judgment of this Court in  Special <\/p>\n
Land Acquisition Bombay Vs. M\/s Godrej & Boyce  reported in  AIR 1987 <\/p>\n
SC 2421, in support of their contention, that the purpose for acquisition must  <\/p>\n
continue until possession is taken.  In that matter this Court held that the title to  <\/p>\n
the   land   vests   in   the   Government   only   when   the   possession   is   taken.     It   is  <\/p>\n
however, material to note that this judgment is concerning Section 16 of the L.A. <\/p>\n
Act.    As far as this submission is concerned,  as held  by K. Ramaswamy J.,  in  <\/p>\n
I.D.A Co’s case (supra), one must note that the scheme of MRTP Act is different  <\/p>\n
from that under the L.A. Act.   In para 11 and 12 of his judgment in I.D.I Co’s. <\/p>\n
case (supra) he has specifically held that Section 126 (1) of the MRTP Act is a <\/p>\n
substitute   for   the   notification   under   Section   4   of   the   L.A.   Act.     A   declaration  <\/p>\n
under Section 126 (2) is equivalent to a declaration under Section 6 of the L.A. <\/p>\n
Act.   The objections of the persons concerned are considered before such land <\/p>\n
gets earmarked for public purpose in the plan.   Therefore, there is no need of  <\/p>\n
any enquiry as under Section 5A of the L.A. Act.  Section 126 (1) (c) specifically  <\/p>\n
states that when an application is made to the State Government for acquiring  <\/p>\n
the   land   under   the   L.A.   Act,   the   land   vests   absolutely   with   the   Planning  <\/p>\n
                                               76<\/span><\/p>\n
Authority.   Therefore, it was held that in the scheme of the MRTP Act, it is not  <\/p>\n
necessary that the original public purpose should continue to exist till the award  <\/p>\n
was made and possession taken.\n<\/p>\n<\/p>\n
90.             The   observations   of   K.   Ramaswamy,   J.   in   paragraph   11   of   the <\/p>\n
judgment in I.D.A. Co’s case (supra) are relevant in this behalf.  This para reads <\/p>\n
as follows:-\n<\/p>\n<\/p>\n
                “11.  If we turn to Chapter III of the MRTP Act, we find
\n       that the entire machinery is provided for preparation, submission
\n       and   sanction   of   development   plan   proceeding   from   Section   21
\n       and ending with Section 31.   These provisions, in short, provide
\n       for   preparation   of   draft   development   plant   by   the   planning
\n       authority   inviting   objections   of   persons   concerned   against   such
\n       proposals,   hearing   of   objections   filed   by   the   objectors   as   per
\n       Section 28 sub-section (3) by the Planning committee and then
\n       submitting   its   report   to   the   planning   authority   which   ultimately
\n       gets   the   proposals   approved   by   the   State   Government   under
\n       Section   30.     All   these   provisions   do   indicate   that   requirement,
\n       designation, reservation or earmarking of any land for acquisition
\n       for   any   specified   public   purpose   as   indicated   in   the   plan   has
\n       already undergone the process of hearing after the objections of
\n       the persons concerned were considered and then such land gets
\n       earmarked for public purpose in the plan.   It is after that stage,
\n       therefore, when need to acquire such earmarked, designated or
\n       reserved   land   for   public   purpose   under   the   plan   arises,   that
\n       Section   126(1)   proposal   gets   issued   by   the   planning   authority
\n       concerned and which itself becomes a substitute for Section 4(1)
\n       notification   under   the   Act.    It   would   thus,   appear   that   the
\n       scheme of acquisition of earmarked land under the plan
\n       for a specified public purpose thereunder, is a complete
\n       scheme or code under the MRTP Act.   It is a distinct and
\n       independent  scheme  as   compared   to  general  scheme   of
\n       acquisition under the Land Acquisition Act.”\n<\/p><\/blockquote>\n
                                                          (emphasis supplied)<\/p>\n<\/blockquote>\n
91.             In this connection, we must note Section 126(1) of the MRTP Act <\/p>\n
provides for three modes of acquisition of land for public purposes specified in <\/p>\n
the plan.  The third mode is by making an application to the State Government  <\/p>\n
                                              77<\/span><\/p>\n
for acquiring such land under the L.A. Act, and thereafter the land so acquired  <\/p>\n
vests absolutely in the Planning Authority.  Sections 126(1) and (2) are extracted <\/p>\n
herein below for ready reference.\n<\/p><\/blockquote>\n
              “126 – Acquisition of land required for public purposes
\n              specified in plans<\/p>\n
      (1)   Where   after   the   publication   of   a   draft   Regional   Plan,   a
\n      Development  or any other plan  or Town Planning Scheme, any
\n      land   is   required   or   reserved   for   any   of   the   public   purposes
\n      specified in any plan or scheme under this Act at any time the
\n      planning  Authority,   Development  Authority,   or  as   the  case may
\n      be, [any Appropriate Authority may, expect as otherwise provided
\n      in section 113A] [acquire the land,–\n<\/p><\/blockquote>\n
      (a) by agreement by paying an amount agreed to, or<\/p>\n<\/blockquote>\n
      (b) in lieu of any such amount, by granting the land-owner or the
\n      lessee,   subject,   however,   to   the   lessee   paying   the   lessor   or
\n      depositing with the Planning Authority, Development Authority or
\n      Appropriate   Authority,   as  the case  may  be,  for payment  to  the
\n      lessor, an amount equivalent to the value of the lessor’s interest
\n      to be determined by any of the said Authorities concerned on the
\n      basis   of   the   principles   laid   down   in   the   Land   Acquisition   Act,
\n      1894(I   of   1894),   Floor   Space   Index   (FSI)   or   Transferable
\n      Development Rights (TDR) against the area of land surrendered
\n      free   of   cost   and   free   from   all   encumbrances,   and   also   further
\n      additional Floor Space Index or Transferable Development Rights
\n      against  the  development  or  construction  of the  amenity   on  the
\n      surrendered   land  at  his   cost,   as   the  Final  Development   Control
\n      Regulations prepared in this behalf provide, or<\/p>\n<\/blockquote>\n
      (c)   by   making   an   application   to   the   State   Government   for
\n      acquiring   such   land   under   the   Land   Acquisition   Act,   1894(I   of
\n      1894),and   the   land   (together   with   the   amenity,   if   any   so
\n      developed or constructed) so acquired by agreement or by grant
\n      of   Floor   Space   Index   or   additional   Floor   Space   Index   or
\n      Transferable Development Rights under this section or under the
\n      Land Acquisition Act, 1894(I of 1890), as the case may be, shall
\n      vest   absolutely   free   from   all   encumbrances   in   the   Planning
\n      Authority,   Development   Authority,   or   as   the   case   may   be,   any
\n      Appropriate Authority.]<\/p>\n
      (2)   On   receipt   of   such   application,   if   the   State   Government   is
\n      satisfied that the land specified in the application  is needed for  <\/p>\n
                                                  78<\/span><\/p>\n
        the public purpose therein specified, or [if the State Government
\n        (except in cases falling under section 49 [and except as provided
\n        in section 113A)] itself is of opinion] that any land included in any
\n        such   plan   is   needed   for   any   public   purpose,   it   may   make   a
\n        declaration  to that effect in  the Official  Gazette,  in  the manner
\n        provided   in   section   6   of   the   Land   Acquisition   Act,   1894(I   of
\n        1894), in respect of the said land. The declaration so published
\n        shall,   notwithstanding   anything   contained   in   the   said   Act,   be
\n        deemed to be a declaration duly made under the said section:\n<\/p><\/blockquote>\n
          [Provided that, subject to the provisions of sub-section (4), no
\n        such declaration shall be made after the expiry of one year from
\n        the date of publication of the draft Regional Plan, Development
\n        Plan or any other Plan, or Scheme, as the case may be.]<\/p>\n
                 (3) ……..\n<\/p><\/blockquote>\n
                 (4) ……..”\n<\/p><\/blockquote>\n
92.              Section   128   of   the   MRTP   Act   strengthens   the   view   that   we   are  <\/p>\n
taking.     Section   128   deals   with   a   situation   where   the   land   is   sought   to   be <\/p>\n
acquired for a purpose other than the one which is designated in the plan or the <\/p>\n
scheme.     In   that   case   provisions   of   the   L.A.   Act   apply   with   full   force.     This  <\/p>\n
Section reads as follows:-\n<\/p><\/blockquote>\n
                 “128.   Power  of  State  Government  to  acquire   lands <\/p>\n
        for purpose other than the one for which it is designated <\/p>\n
        in draft plan or scheme.\n<\/p><\/blockquote>\n
                 (1) Where any land is included in [any plan or scheme] as
\n        being   reserved,   allotted   or   designated   for   any   purpose   therein
\n        specified or for the purpose of Planning Authority or Development
\n        Authority or Appropriate Authority and the State Government is
\n        satisfied   that   the   same   land   is   needed   for   a   public   purpose
\n        different from any such public purpose or purpose of the Planning
\n        Authority,   Development   Authority   or   Appropriate   Authority,   the
\n        State   Government   may,   notwithstanding   anything   contained   in
\n        this   Act,   acquire   such   land   under   the   provisions   of   the   Land
\n        Acquisition Act, 1894(I of 1894).\n<\/p><\/blockquote>\n
                 [(1A) Save as otherwise provided in this Act or any other
\n        law for the time being in force where any land included in any  <\/p>\n
                                               79<\/span><\/p>\n
      plan or scheme as being reserved, allotted or designated for any
\n      purpose   therein   specified   or   for   the   purposes   of   a   Planning
\n      Authority  or  Development  Authority  or  Appropriate  Authority,   is
\n      being acquired by the State Government under the provisions of
\n      the   Maharashtra   Industrial   Development   Act,   1961(Mah.   III   of
\n      1962),   for   the   Maharashtra   Industrial   Development   Corporation
\n      (being   the   Special   Planning   Authority   deemed   to   have   been
\n      appointed   as   such   under   sub-section   (1A)   of   section   40),   the
\n      provisions of sub-sections (2) and (3) of this section shall mutatis
\n      mutandis, apply to such acquisition proceedings.]<\/p>\n
                 (2) In the proceedings  under the Land Acquisition  Act,
\n      1894(I   of   1894),   the   Planning   Authority,   or   Development
\n      Authority or Appropriate Authority, as the case may be, shall be
\n      deemed to be a person interested  in the land acquired; and in
\n      determining   the   amount   of   compensation   to   be   awarded,   the
\n      market   value   of   the   land   shall   be   assessed   as   if   the   land   had
\n      been   released   from   the   reservation,   allotment   or   designation
\n      made in the [any plan or scheme] or new town, as the case may
\n      be,  and the  Collector   or the Court  shall take into  consideration
\n      the   damage,   if   any,   that   Planning   Authority   or   Development
\n      Authority   or   Appropriate   Authority,   as   the   case   may   be,   may
\n      sustain   by   reason   of   acquisition   of   such   land   under   the   Land
\n      Acquisition   Act,   1894(I   of   1894),   or   otherwise,   and   the
\n      proportionate   cost   of   the   Development   plan   or   town   planning
\n      scheme   or   new   town,   if   any,   incurred   by   such   Authority   and
\n      rendered abortive by reason of such acquisition.\n<\/p><\/blockquote>\n
              (3)   On   the   land   vesting,   in   the   State   Government   under
\n      sections 16 or 17 of the Land Acquisition Act, 1894(I of 1894), as
\n      the case may be, the [relevant plan or scheme] shall be deemed
\n      to be suitably varied by reason of acquisition of the said land.”<\/p><\/blockquote>\n
              Sub-section   (1)   of   this   Section   states   that   in   such   situations   the <\/p>\n
provision of L.A. Act will apply notwithstanding anything contained in the MRTP <\/p>\n
Act, and sub-section (3) specifically states that in such an event the vesting will <\/p>\n
take place under Section 16 and 17 of the L.A. Act as the case may be.  That is  <\/p>\n
not the case with respect to the acquisition under Section 126 of the MRTP Act, <\/p>\n
where the vesting takes place in the three circumstances mentioned thereunder.\n<\/p><\/blockquote>\n
In the present case also the acquisition is resorted  to by issuing  a notification <\/p>\n
                                                  80<\/span><\/p>\n
under  Section  126 read  with  Section  6 of the L.A.  Act.    The vesting  therefore <\/p>\n
takes place at that stage.\n<\/p>\n<\/p>\n
93.              After the declaration is made under Section 126 (2) of the MRTP <\/p>\n
Act, the proceedings to determine the compensation follow the procedure as laid <\/p>\n
down   under   the   L.A.   Act   until   Section   11   thereof.     A   notice   is   given   to   the  <\/p>\n
interested   persons   as   required   under   Section   9   of   the   L.A.   Act   to   lodge   their <\/p>\n
claims to compensation for all the interests in such land.   Thereafter, they are  <\/p>\n
heard in the inquiry made by the Collector or the S.L.A.O., and after following <\/p>\n
the requirements as laid down in Section 11, the compensation is arrived at.  The <\/p>\n
change of purpose of utilisation of the land acquired under Section 126 of the <\/p>\n
Act does not make any difference in this behalf.  There is no prejudice caused to <\/p>\n
the landowners since the award is made only after affording them full hearing <\/p>\n
concerning their claims for compensation.\n<\/p>\n<\/p>\n
94.     (i)      When it comes to urgency also, there is a separate provision in the <\/p>\n
MRTP Act, distinct from the one in the L.A. Act.   Section 129 of the MRTP Act <\/p>\n
contains provisions different from Section 17 of the L.A. Act.  Under sub-Section <\/p>\n
(2) of Section 129 there is the requirement of paying to the owner of the land <\/p>\n
concerned, an interest @ 4% per annum on the amount of compensation, from <\/p>\n
the date of taking possession of the land until the date of payment.<\/p>\n
(ii)             Thus the MRTP Act contains a separate scheme in Chapter VII of <\/p>\n
the Act distinct from the one in L.A. Act.  This is because MRTP Act is a special  <\/p>\n
                                                  81<\/span><\/p>\n
act   enacted   for   the   purpose   of   planned   development   and   the   provisions <\/p>\n
concerning land acquisition are made therein in that context. <\/p>\n
95.              We may mention at this stage that recently a Constitution Bench of <\/p>\n
this Court has also held in the context of Section 11A of the L.A. Act (providing  <\/p>\n
for two years period to make the award) in  Girnar Traders (3) Vs. State of <\/p>\n
Maharashtra & Ors. reported in 2011 (3) SCC 1, that only the provisions with <\/p>\n
respect   to   the   acquisition   of   land,   payment   of   compensation   and   recourse   of <\/p>\n
legal remedies under the L.A. Act can be read into Chapter VII of the MRTP Act  <\/p>\n
concerning   Land   Acquisition,   and   Section   11A   of   the   L.A.   Act   will   not   apply  <\/p>\n
thereto.     It   held   that   in   the   scheme   of   the   MRTP   Act,   the   provisions   of   Land  <\/p>\n
Acquisition Act would apply only until the making of the award under Section 11  <\/p>\n
of the Act. The Court held that MRTP Act is a self contained code and Sections  <\/p>\n
126 to 129 thereof clearly enunciate the intention of the framers that substantive <\/p>\n
provisions   of   L.A.   Act   are   not   applicable   to   MRTP   Act.     In   para   129   of   the <\/p>\n
judgment the Constitution Bench has specifically held:-<\/p>\n
                 “129. ……   Vesting,   unlike   Section   16   of   the   Land
\n        Acquisition Act which operates only after the award is made and
\n        compensation   is   given,   whereas   under   the   MRTP   Act   it   may
\n        operate even at the initial stages before making of an award, for
\n        example, under Sections 126(1)(c) and 83.”\n<\/p><\/blockquote>\n
96.              The appellants herein have contended, and so had the respondents <\/p>\n
in   I.D.A.   Co’s   case   (supra)   contended   that   the   original   public   purpose   should  <\/p>\n
continue till the award was made and possession taken.  While dealing with this <\/p>\n
proposition, K. Ramaswamy, J. took an overview of the leading judgments in this <\/p>\n
behalf.  The Learned Judge in arriving at his conclusions referred to the law laid <\/p>\n
                                               82<\/span><\/p>\n
down by this Court in Ghulam Mustafa Vs. State of Maharashtra reported in <\/p>\n
1976 (1) SCC 800,  Mangal Oram Vs. State of Orissa reported in 1977 (2) <\/p>\n
SCC   46  ,  State   of   Maharashtra   Vs.   Mahadeo   Deoman   Rai  reported   in <\/p>\n
1990   (3)   SCC   579  ,  Collector   of   24   Parganas   Vs.   Lalit   Mohan   Mullick <\/p>\n
reported  in  1986  (2)  SCC 138,  and  Ram Lal Sethi  Vs. State of Haryana <\/p>\n
reported in 1990 Supp. SCC 11.\n<\/p>\n<\/p>\n
97.            It   is   relevant   to   refer   to   these   judgments.    Ghulam   Mustafa <\/p>\n
(supra)   &  Mangal   Oram  (Supra)   were   both   cases   concerning   the   acquisition <\/p>\n
under the Land Acquisition Act.  In the case of Ghulam Mustafa, V.R. Krishna <\/p>\n
Iyer J., observed as follows:-\n<\/p>\n<\/p>\n
               “…..once   the   original   acquisition   is   valid   and   title   has
\n       vested   in   the   municipality   how   it   uses   the   excess   land   is   no
\n       concern   of   the   original   owner   and   cannot   be   the   basis   for
\n       invalidating the acquisition. There is no principle of law by which
\n       a valid compulsory acquisition  stands voided because long later
\n       the requiring authority diverts it to a public purpose other than
\n       the one stated in the Section 6(3) declaration.”\n<\/p><\/blockquote>\n
               In Mangal Oram (supra) a bench of three Judges specifically held <\/p>\n
that use of land after a valid acquisition for a different  public purpose will not <\/p>\n
invalidate the acquisition.     In Collector of 24 Parganas (supra) the notification  <\/p>\n
under  Section   4  of   the  West  Bengal  Land   Development   and  Planning   Act   was <\/p>\n
issued for settlement and rehabilitation of displaced persons.   Subsequently the <\/p>\n
land was utilised for establishment of a Hospital for crippled children, which was <\/p>\n
held to be not vitiated.  In Union of India Vs. Jaswant Rai Kochhar reported <\/p>\n
in  1996   (3)   SCC   491  land   acquired   for   housing   scheme   was   utilised   for <\/p>\n
commercial purpose i.e. a District Centre.  This Court held in that matter that it is <\/p>\n
                                                  83<\/span><\/p>\n
will settled law that land sought to be acquired for one public purpose may be  <\/p>\n
used   for   another   public   purpose.     In  State   of   Maharashtra   Vs.   Mahadeo <\/p>\n
Deoman Rai reported in 1990 (3) SCC 579 yet another Bench of three Judges <\/p>\n
had held that requirement of public purpose may change from time to time but <\/p>\n
the change will not vitiate the acquisition proceeding.  The opinion rendered by <\/p>\n
K. Ramaswamy J. is in conformity with this line of judgments.  Following this law, <\/p>\n
K. Ramaswamy, J. held in para 22 as follows:-\n<\/p><\/blockquote>\n
                 “22.    It   is   thus   well-settled   legal   position   that   the   land
\n        acquired   for   a   public   purpose   may   be   used   for   another   public
\n        purpose on account of change or surplus thereof.  The acquisition
\n        validly made does not become invalid by change of the user or
\n        change   of   the   user   in   the   Scheme   as   per   the   approved
\n        plan……….. It would not, therefore, be necessary that the original
\n        public purpose should continue to exist till the award was made
\n        and possession taken.”<\/p><\/blockquote>\n<\/blockquote>\n
                 This being the position, there is no difficultly in stating that the two <\/p>\n
judgments of the Bombay High Court which  are relied  upon  by the appellants  <\/p>\n
(viz. in the cases of I.D.I. Co. (supra) and Santu Kisan Khandwe (supra) do <\/p>\n
not lay down the correct position of law.   We are in respectful agreement with <\/p>\n
the opinion rendered by K.Ramaswamy J. in I.D.I. Co’s Case.  The acquisition of <\/p>\n
the land in the present case cannot said to be invalid on account of change of  <\/p>\n
purpose during acquisition.\n<\/p><\/blockquote>\n
98.              That apart, there is also the question as to whether the Civil Court <\/p>\n
had   the   jurisdiction   to   entertain   a   suit   to   challenge   the   acquisition   after   the  <\/p>\n
award was rendered.  This is because when it comes to acquisition, the L.A. Act <\/p>\n
provides for the entire mechanism as to how acquisition is to be effected, and <\/p>\n
                                                  84<\/span><\/p>\n
the   remedies   to   the   aggrieved   parties.     In  State   of   Bihar   Vs.   Dhirendra <\/p>\n
Kumar  &  Ors.  reported  in  1995   (4)  SCC   229  this  Court  in  terms held  that <\/p>\n
since the Act is a complete code, by necessary implication the power of the Civil <\/p>\n
Court to take cognizance of a case under Section 9 of the CPC stands excluded,  <\/p>\n
and   Civil   Court   had   no   jurisdiction   to   go   into   the   question   of   the   validity   or <\/p>\n
legality of the notification under Section 4 and declaration under Section 6, which  <\/p>\n
could be done only by the High Court in a proceeding under Article 226 of the <\/p>\n
Constitution.   In view of this dictum the civil suit itself was not maintainable in  <\/p>\n
the present case.\n<\/p>\n<\/p>\n
        Conduct of the Landowner\/Developer <\/p>\n
99.              The facts as narrated earlier can be placed into proper prospective <\/p>\n
if we note the conduct of the landowner and the developer appointed by him as <\/p>\n
it emerges from stage to stage which is as follows:-\n<\/p>\n<\/p>\n
(a)     The   landowner   never   raised   any   objection   when   the   F.P.   No.   110   was <\/p>\n
sought to be reserved for a public purpose, viz. either for a garden\/playground  <\/p>\n
or subsequently for a primary school.\n<\/p>\n<\/p>\n
(b)     On   his   issuing   the   purchase   notice   to   the   Government   to   purchase   the <\/p>\n
land   and   to   commence   the   proceedings   for   acquisition,   the   State   Government <\/p>\n
responded by confirming the purchase notice under Section 49 (4) of the Act by <\/p>\n
its letter dated 5.12.1979.\n<\/p>\n<\/p>\n
(c)     When   SLAO   started   the   acquisitions   proceedings,   and   when   the   notice <\/p>\n
under Section 9 of the L.A. Act was issued, the landowner replied the same but  <\/p>\n
                                                  85<\/span><\/p>\n
did not challenge the acquisition as such.  He merely demanded compensation at <\/p>\n
a   rate   of   Rs.   480   per   sq.m,   and   demanded   that   the   material   removed   after <\/p>\n
demolition   of   the   temporary   structures   (of   the   tenants)   on   the   property   be <\/p>\n
handed over to him.\n<\/p>\n<\/p>\n
(d)     After  the  SLAO rejected  the  objections  of  the  landowner  as  well as the <\/p>\n
tenants,   and   gave   his   award   dated   12.5.1983,   the   landowner   accepted   the <\/p>\n
compensation on 15.3.1985, though under protest.\n<\/p>\n<\/p>\n
(e)     After   the   Reference   Court   enhanced   the   solatium   and   the   special <\/p>\n
component by its order dated 15.4.1988, the landowner accepted the enhanced  <\/p>\n
amount, once again under protest.  However, he did not file the statutory appeal  <\/p>\n
available to him under Section 54 of the L.A. Act.\n<\/p>\n<\/p>\n
(f)     When the notice to take possession was given, it is the tenants alone who <\/p>\n
filed a suit to challenge the acquisition.\n<\/p>\n<\/p>\n
(g)     After the injunction in that suit No. 966 of 1983 was vacated, the tenants  <\/p>\n
represented to the Minister of State for UDD, pointing out their difficulties.  The <\/p>\n
landowner did not challenge the acquisition in any manner whatsoever.<\/p>\n
(h)     After the Development Plan under the MRTP Act was sanctioned, though <\/p>\n
the   reservation   was   continued,   the   purpose   of   utilization   of   the   land   was <\/p>\n
changed in the 1987 D.P. plan from garden to primary school.  Thereafter, when <\/p>\n
the  SLAO  gave  one more  notice  to  take possession  on  1.3.1988, some  of the <\/p>\n
tenants   filed   another   Civil   Suit   bearing   No.   397   of   1988   in   the   Court   of   Civil <\/p>\n
                                                86<\/span><\/p>\n
Judge, Senior Division Pune.  It was at that stage that the landowner who was a <\/p>\n
defendant   in   that   suit,   applied   for   transposing   himself   as   a   plaintiff   which <\/p>\n
application   was   allowed   on   2.4.1988.     The   Civil   Court   having   held   that   the <\/p>\n
acquisition had lapsed due to the change of purpose of acquisition (from what it <\/p>\n
originally was in 1966), the PMC filed an Appeal which is pending thereafter.<\/p>\n
(i)     After Shri Manohar Joshi took over as the Chief Minister on 14.3.1995, the <\/p>\n
landowner entered into a Development agreement with M\/s Vyas Constructions <\/p>\n
on 20.10.1995.   Besides, he executed two powers of attorney, one in favour of <\/p>\n
its   proprietor   Shri  Girish  Vyas  on  20.10.1995  for  carrying  out   development   on <\/p>\n
F.P. No. 110, and another in favour of Shri Shriram Karandikar on 26.10.1995 to  <\/p>\n
take   necessary   steps   concerning   this   development.     Thereafter   the   follow-up <\/p>\n
steps were taken by Shri Karandikar, until the last stage when Shri Girish Vyas <\/p>\n
stepped in.\n<\/p>\n<\/p>\n
(j)     After the City Engineer, Pune rejected the proposal of the Architect of the <\/p>\n
landowner   for   building   permission   by   his   reply   dated   6.11.1995,   the   above <\/p>\n
referred Shri Karandikar straightaway wrote to the Minister of State for UDD on  <\/p>\n
20.11.1995, and sought  a direction  to  the Municipal Commissioner  to  consider  <\/p>\n
landowner’s application for development of the property.   This application  was <\/p>\n
not   addressed   to   the   State   Government   or   to   the   Secretary   concerned,   but  <\/p>\n
straightaway   to   the   Minister   of   State   for   UDD,   and   did   not   bear   any   inward  <\/p>\n
stamp of the department.  The noting of the Private Secretary of the Minister of  <\/p>\n
State   in   UDD   in   the   margin   of   the   application   showed   that   it   was   directly  <\/p>\n
received at the Minister’s level.  Thereafter as directed by the Minister of State, <\/p>\n
                                                87<\/span><\/p>\n
the   Under   Secretary   of     UDD   immediately   called   a   meeting   of   high   ranking <\/p>\n
officers such as Secretary UDD, Director Town Planning, Commissioner of PMC, <\/p>\n
City Engineer of PMC, and Under Secretary UDD, which meeting would not have <\/p>\n
been possible unless one had a clout with the Ministry.\n<\/p>\n<\/p>\n
(k)     The initial stand of the administration was clearly reflected in the notings, <\/p>\n
and in the record of the meeting held on 3.2.1996.  The preliminary note dated  <\/p>\n
2.2.1996   from   the   department   clearly   stated   that   the   land   had   been   acquired <\/p>\n
after taking the necessary action on the purchase notice, and the compensation <\/p>\n
had   been   accepted.     The   question   of   returning   of   the   plot   to   the   landowner  <\/p>\n
therefore did not arise.\n<\/p>\n<\/p>\n
(l)     During   the   meeting   held   on   3.2.1996   the   City   Engineer   of   PMC   also <\/p>\n
pointed out that landowner had never objected to the reservation on the plot, or <\/p>\n
the change in the purpose of its utilization  from 1982 to 1987, i.e.  during  the <\/p>\n
entire   process   of   revising   the   development   plan.   If   the   proceeding   before   the <\/p>\n
Minister of State was in the nature of an appeal under Section 47 of the MRTP  <\/p>\n
Act (against the rejection of the proposal of development) under Section 45, the <\/p>\n
same could not be entertained, and the appeal had to be rejected.  If it was an  <\/p>\n
application for de-reservation then it had to be considered under Section 37 of <\/p>\n
the MRTP Act and not otherwise.\n<\/p>\n<\/p>\n
(m)     The   landowner   initially   took   the   stand   that   it   was   not   an   appeal,   but <\/p>\n
subsequently wrote a letter on 23.3.1996 through Shri Karandikar that it was an <\/p>\n
                                                 88<\/span><\/p>\n
appeal  under  Section  47 of the  MRTP  Act.    The landowner  and the  developer <\/p>\n
have been changing their stand from time to time.\n<\/p>\n<\/p>\n
        The   conduct   of   the   Minister   of   State   for   UDD,   the   then   Chief <\/p>\n
        Minister, and the Municipal Commissioner<\/p>\n
100.             We may now refer to the conduct of the then Minister of State for <\/p>\n
UDD, the then Chief Minister and the then Municipal Commissioner.  <\/p>\n
(a)     As stated above the application of the landowner was received directly at <\/p>\n
the   level   of   the   Minister   of   State   and   immediately   a   meeting   of   high   ranking <\/p>\n
officers was called, which is normally not done.\n<\/p>\n<\/p>\n
(b)     In spite of a clear initial stand taken by the City Engineer PMC, as well as  <\/p>\n
by  the   senior  officers  of   UDD such  as  its  Secretary,   in  view   of  the  landowner  <\/p>\n
submitting that on the adjoining plots schools had been developed, the Minister  <\/p>\n
of State for UDD asked the Municipal Commissioner to survey the property and  <\/p>\n
make   a   report,   whether   the   PMC   really   needed   the   concerned   property.     The  <\/p>\n
note of the meeting dated 3.2.1996 shows that initially the Minister of State for <\/p>\n
UDD   was   also   of   the   view   that   if   necessary   a   direction   may   be   issued   under  <\/p>\n
Section 37 of the Act, and only a part of F.P. 110 could be released if PMC did <\/p>\n
not have any objection to reduce the area under reservation. <\/p>\n
(c)     In   view   of   the   direction   of   the   Minister   of   State,   the   Municipal  <\/p>\n
Commissioner who is the Chief Executive of PMC and an I.A.S. officer of a high <\/p>\n
rank was asked to make a report after personally making a site inspection.   A <\/p>\n
                                                  89<\/span><\/p>\n
direction to a high ranking officer to make a site inspection is not expected in  <\/p>\n
such a case, and is quite unusual and disturbing to say the least. <\/p>\n
(d)     In his letter  dated  17.4.1996 the  Municipal  Commissioner  reiterated  the <\/p>\n
earlier stated stand of PMC to begin with, and then gave the report about the <\/p>\n
schools in the vicinity.   However, he volunteered to add thereafter that private <\/p>\n
institutions may not come to this plot to set up a primary school, and PMC may  <\/p>\n
as well spend its funds elsewhere.  This was not correct since the applications of <\/p>\n
two   reputed   educational   institutions   for   this   very   plot   were   pending   with   the <\/p>\n
PMC, and this fact was not stated by the Commissioner in his report. <\/p>\n
(e)     In view of the direction of the State Government, the Commissioner   held <\/p>\n
discussions with Shri Karandikar, who offered to give an alternate unencumbered <\/p>\n
plot   of   land   of   about   5000   to   10,000   sq.   feet   free   of   cost.     Thereafter   the  <\/p>\n
Commissioner recorded in his letter the two proposals given by Shri Karandikar,  <\/p>\n
and observed that if the school was to be shifted from F.P. No. 110, an action  <\/p>\n
under Section 37 of the MRTP Act as well as the permission from PMC will be <\/p>\n
required.\n<\/p>\n<\/p>\n
(f)     On 24.4.1996 there is a noting (which is subsequent to the letter of the <\/p>\n
Municipal  Commissioner   dated  17.4.1996)   that   the  file  was  called  by   the   then <\/p>\n
Chief   Minister   for   his   perusal.     Thus   the   Chief   Minister   had   kept   himself   fully  <\/p>\n
abreast with the developments in this matter.\n<\/p>\n<\/p>\n
(g)     The UDD department  did  not  accept  the proposal of  shifting  the school  <\/p>\n
from F.P. No. 110 to a place far away, as seen from the note prepared by the  <\/p>\n
                                                 90<\/span><\/p>\n
department (signed by the Deputy Secretary on 4.6.1996) recording that if the <\/p>\n
school was to be shifted from F.P. No. 110, it had to come up in the vicinity of <\/p>\n
approximately   200   metres   as   per   rule   13.5   of   Pune   D.C.   Rules.   The   note  <\/p>\n
suggested   acceptance   of   the   proposal   of   reduction   of   50%   of   the   area   under <\/p>\n
reservation by resorting to the procedure under Section 37 of MRTP Act. <\/p>\n
(h)     The   Minister   of   State   did  not   approve  this   note   dated  4.6.1996,   and   in <\/p>\n
view of Shri Karandikar insisting on shifting  the school from F.P. No. 110, the  <\/p>\n
subsequent note dated 13.6.1996 recorded that if the condition of 200 metres is <\/p>\n
to   be   relaxed,   orders   will   have   to   be   obtained   from   the   Chief   Minister   (which  <\/p>\n
power is disputed by the Principal Secretary, UDD in his subsequent note dated  <\/p>\n
24.7.1998).\n<\/p>\n<\/p>\n
(i)     Thereafter,   the   developer   offered   another   parcel   of   land   at   Lohegaon <\/p>\n
(which is a far off place), on which proposal the department prepared a note to <\/p>\n
give   four   directions   to   PMC   which   have   been   referred   earlier.     Under   that <\/p>\n
proposal, Lohegaon land was to be exchanged for the concerned F.P. No. 110  <\/p>\n
which was to be released by invoking DC Rule 13.5, and the landowner was to <\/p>\n
return to PMC the amount of compensation received.  This note was approved by <\/p>\n
the   Chief   Minister   on   21.8.1996   and   accordingly   a   direction   was   given   to   the <\/p>\n
Municipal Commissioner on 3.9.1996 to accept the proposal of the developer and <\/p>\n
issue the development permission for F.P. No. 110.\n<\/p>\n<\/p>\n
(j)     The   Senior   Law   Officer   of   the   PMC   recorded   an   objection   that   such <\/p>\n
permission   will   require   the   approval   of   the   general   body   of   the   Municipal <\/p>\n
                                                91<\/span><\/p>\n
Corporation,   but   the   Municipal   Commissioner   overruled   him   on   21.9.1996,   in <\/p>\n
view  of  the   direction  of  the  government  to   act   under  DC  Rule   13.5   as   stated  <\/p>\n
above, and ignored the mandatory provision of Section 37 of MRTP Act. <\/p>\n
(k)     Thereafter   the   commencement   certificates   have   been   issued   on <\/p>\n
28.11.1996, and an occupation certificate for the tenants’ building was also given <\/p>\n
on 20.12.1997.\n<\/p>\n<\/p>\n
(l)     At   this   stage,   the   land   developer   Shri   Girish   Vyas   had   written   on <\/p>\n
15.7.1998 to PMC on learning that according to PMC the Lohegaon land was not <\/p>\n
suitable   for   a   school.   He   offered   to   handover   another   parcel   of   land   in   a  <\/p>\n
residential   zone   at   Mundhwa   (which   is   also   a   far   off   place),   and   to   deposit  <\/p>\n
whatever amount that was required for the construction of a school of 500 sq. <\/p>\n
feet   area   at   Mundhwa   or   elsewhere,   but   the   Completion   Certificate   for   the <\/p>\n
building for the other occupants of F.P. No. 110 (named as Sun-Dew Apartment) <\/p>\n
be issued.\n<\/p>\n<\/p>\n
(m)     There is a clear office note dated 22.7.1998 on record which shows that <\/p>\n
there was already a criticism of this matter in the newspapers and in the General <\/p>\n
Body of PMC,  that one educational  amenity in that area  was being  destroyed. <\/p>\n
The   note   recorded   that   Sr.   Chief   Secretary   of   Chief   Minister   had   issued  <\/p>\n
instructions,   to   put   up   a   self-explanatory   note   for   the   perusal   of   the   Chief  <\/p>\n
Minister, to enable him to answer the probable questions in the assembly.  This <\/p>\n
note dated 22.7.1998 was specifically marked for the Chief Minister. <\/p>\n
                                                 92<\/span><\/p>\n
(n)     The Principal Secretary UDD had opined on 24.7.1998 that resort to DC <\/p>\n
Rule 13.5 will not be legal, and an action be taken under Section 37 of MRTP <\/p>\n
Act.   Yet, in view of the favourable indication of the Municipal Commissioner in <\/p>\n
his   letter   dated   17.4.1996,   a   note   was   prepared   on   27.7.1998   to   continue   to <\/p>\n
maintain the decision under DC Rule 13.5.\n<\/p>\n<\/p>\n
(o)     When   Shri   Girish   Vyas   had   entered   into   the   picture   through   his   above <\/p>\n
referred   letter,   the   Additional   Chief   Secretary   made   a   note   that   since   the <\/p>\n
developer is related to the Chief Minister, the Minister of State may take proper  <\/p>\n
decision  as per  the rules.    It is only because  of this note that  the Minister  of  <\/p>\n
State   had   signed   the   papers   approving   the   proposal   of   the   department,   and <\/p>\n
directing   that   the   necessary   orders   be   issued   to   the   PMC.     Accordingly,   the <\/p>\n
Deputy Secretary of UDD   issued the consequent letter dated 29.7.1998 to the <\/p>\n
Municipal   Commissioner,   permitting   him   to   accept   the   land   at   Mundhwa   or <\/p>\n
elsewhere, as well as the amount to construct a school building of 500 sq. feet, <\/p>\n
and to issue the occupancy certificate for the Sundew Apartments. <\/p>\n
(p)     Thus it has got to be inferred that not only the then Chief Minister was <\/p>\n
fully aware about this matter right from April 1996, until the last direction of UDD <\/p>\n
dated 29.7.1998, but was associated with the decision making process and the <\/p>\n
directions issued all throughout.\n<\/p>\n<\/p>\n
101.             The events in this matter disclose that although the officers of UDD <\/p>\n
and the PMC initially took the clear stand opposing the proposal on behalf of the  <\/p>\n
landowner   to   put   up   a   residential   building   in   place   of   a   Primary   School,   the  <\/p>\n
                                               93<\/span><\/p>\n
Minister  of State for Urban Development  asked the Municipal Commissioner  to <\/p>\n
personally  carry out a survey of the property,  on the ground  that two schools  <\/p>\n
had come up in the near vicinity, ignoring the fact that they had so come up as  <\/p>\n
per the provision in the D.P. Plan itself.  Thereafter when it was pointed out that <\/p>\n
the permission of the general body of the Municipal Corporation will be required  <\/p>\n
for the modification, that submission was by-passed.   The provision of DC Rule <\/p>\n
13.5   requiring  alternate   land  to   be   provided  for  the   same   purpose  within   200 <\/p>\n
meters was also given a go-bye, and this rule was utilized to accept the proposal <\/p>\n
to   shift   the   school   to   a   very   far   off   place.   The   mandatory   provision   for  <\/p>\n
modification  under  Section  37 of the  MRTP  Act was totally  ignored.  Ultimately <\/p>\n
only   an   amount   for   constructing   a   school   building   elsewhere   and   the   land <\/p>\n
therefor was offered to the Municipal Corporation, for getting a reserved plot of <\/p>\n
land in a prime area of the city released from a public amenity.  Last but not the <\/p>\n
least,   the   Municipal   Corporation   was   instructed   to   withdraw   the   First   Appeal <\/p>\n
which it had filed to challenge the decision of the District Court in favour of the <\/p>\n
landowner in the matter of acquisition.\n<\/p>\n<\/p>\n
102.            It is material to note that after the Municipal Commissioner sent his <\/p>\n
report   dated   17.4.1996,   the   Private   Secretary   to   the   then   Chief   Minister   Shri <\/p>\n
Manohar   Joshi   had   called   for   the   file   for   his   perusal.     After   all   necessary <\/p>\n
directions   were   decided,   the   Chief   Minister   placed   on   record   his   approval   on <\/p>\n
21.8.1996   with   an   apparently   innocent   remark   `All   actions   be   taken   in <\/p>\n
accordance with law’, though he did not forget to record “No objection”.  Thus,  <\/p>\n
the   decision   of   the   Government   dated   3.9.1996   to   shift   the   reservation   of   a <\/p>\n
                                                94<\/span><\/p>\n
primary school from F.P. 110 under D.C.  Rule 13.5 was under his order dated  <\/p>\n
21.8.1996.   Subsequently, when his son-in-law Shri Girish Vyas wrote the letter <\/p>\n
dated  15.7.1998 that money be received  for constructing  a school somewhere  <\/p>\n
else,   it   became   obvious   on   the   record   that   the   son-in-law   of   the   then   Chief  <\/p>\n
Minister was behind the project.   At that stage also the Chief Minister had to be <\/p>\n
pointed out by the Addl. Chief Secretary that the developer is related to him, and <\/p>\n
therefore, the necessary decision may not be taken by him, but by the Minister of  <\/p>\n
State.     Therefore,   the   file   went   to   the   Minister   of   State   for   UDD   on   whose <\/p>\n
direction the last necessary letter has been sent to PMC by the Deputy Secretary  <\/p>\n
UDD on 29.7.1998.   However this subsequent decision is in continuation to the <\/p>\n
initial   decision   of   the   Chief   Minister   dated   21.8.1996,   and   therefore   the <\/p>\n
responsibility for the clearance of this disputed construction squarely lies on his <\/p>\n
shoulders.\n<\/p>\n<\/p>\n
        A brief summary<\/p>\n
103.             This   is   not   a   case   where   the   landowner   or   his   developer   have <\/p>\n
approached  the appropriate  authority on the basis of their  allegedly  subsisting  <\/p>\n
rights under the erstwhile T.P. scheme contending that setting up of a primary  <\/p>\n
school on that plot contrary thereto would be affecting their right to develop the  <\/p>\n
property   and   is   therefore   illegal.     It   is   also   not   a   case   where   they   have <\/p>\n
approached   the   appropriate   authority   pointing   out   that   there   are   sufficient  <\/p>\n
number   of   schools   in   the   near   vicinity   with   supporting   information   and,  <\/p>\n
therefore, sought deletion of reservation on the concerned plot.   This is a case <\/p>\n
where the landowner never raised either of the two pleas to begin with.  He was <\/p>\n
                                               95<\/span><\/p>\n
conscious of the fact that the land was reserved for a public garden in the 1966 <\/p>\n
D.P.   Plan   and,   therefore,   gave   a   purchase   notice   in   May,   1979   which   was <\/p>\n
confirmed  by   the   State  Government  in  December,   1979.     When   the  D.P.  Plan <\/p>\n
was   revised   during   1982-1987,   he   never   raised   any   of   the   above   two <\/p>\n
submissions.     He   did   not   even   challenge   the   subsequent   reservation   for   a <\/p>\n
primary school finalized in 1987.  Only in 1995 when Shri Manohar Joshi became <\/p>\n
the Chief Minister, he appointed his son-in-law as a developer and another power <\/p>\n
of attorney Shri Karandikar to approach the Ministers directly.   He pointed out  <\/p>\n
that two schools had come up on the adjoining plots (which was in fact as per  <\/p>\n
the D.P. Plan itself), and the Minister used this information to get a report from <\/p>\n
the  Municipal  Commissioner  who suppressed  the  fact  that  applications  for  this <\/p>\n
very plot from two educational institutions were pending with PMC.   Then also <\/p>\n
the order of deletion was not passed either under Section 37 (leave aside Section <\/p>\n
22A), or Section 50 of the Act which was invoked for the first time in this Court <\/p>\n
(and  which  otherwise  also could  not  be  applied).      The  order  of  deletion  was  <\/p>\n
passed under D.C. Rule 13.5 which had no application.\n<\/p>\n<\/p>\n
104.            The effect of what has been done is this: that a landowner accepts  <\/p>\n
compensation   for   his   land   when   acquisition   proceedings   are   initiated   at   his <\/p>\n
instance.   The landowner does not challenge either the acquisition proceedings <\/p>\n
or   the   amount   of   compensation,   but   in   fact   collects   the   amount.     When   the <\/p>\n
tenants challenge the acquisition, the land owner joins the same subsequently. <\/p>\n
When  the award is set aside  by the civil  court,  and the Municipal Corporation <\/p>\n
files the appeal, the landowner approaches a close relative of the Chief Minister,  <\/p>\n
                                                  96<\/span><\/p>\n
who   happens   to   be   a   property   developer.     The   development   permission   is <\/p>\n
granted   by-passing   the   objections   of   the   concerned   department   of   the <\/p>\n
Government and the Municipal Corporation, and flouting all relevant provisions of <\/p>\n
law.     The   Municipal   Corporation   is   asked   to   withdraw   the   appeal   against   the <\/p>\n
judgment holding that acquisition has lapsed. When the actions are challenged in  <\/p>\n
a public interest litigation, the landowner contends that he had a subsisting right  <\/p>\n
under   the   erstwhile   T.P.   Scheme,   in   spite   of   a   subsequent   reservation   for   a  <\/p>\n
public   amenity   in   the   D.P.   Plan   holding   the   field,   and   that   the   construction   is <\/p>\n
permissible though its legality cannot be traced to any provision of law.<\/p>\n
105.             Present   case   is   not   one   where   permission   was   sought   for   the <\/p>\n
construction under erstwhile T.P. scheme, or under Section 50 of the MRTP Act.  <\/p>\n
This is a case where the personal relationship  of the developer  with the Chief <\/p>\n
Minister   was   apparently   used   to   obtain   permission   for   construction   without <\/p>\n
following any due process of law.  This is a case of rules and procedures being <\/p>\n
circumvented to benefit a close relative of the Chief Minister.  It is a clear case of  <\/p>\n
mala fide  exercise of the powers  and, therefore, the High Court was perfectly <\/p>\n
justified   in   canceling   the   development   permission   which   was   granted   by   the <\/p>\n
State Government.   The development permission could not be defended either <\/p>\n
under   Rule   6.6.2.2   or   under   Section   50.     The   MRTP   Act   requires   a   valid  <\/p>\n
development   permission   under   chapter   IV   of   the   act,   and   in   the   instant   case <\/p>\n
there   is   none.     Consequently,   the   construction   put   up   on   the   basis   of   such <\/p>\n
permission had to be held to be illegal.     In the circumstances, we uphold the <\/p>\n
                                                97<\/span><\/p>\n
judgment of the Division Bench as fully justified in law and in the facts of the <\/p>\n
case.\n<\/p>\n<\/p>\n
          Impugned Order passed by the Division Bench<\/p>\n
106.  (i)        As seen above, the Division Bench in the impugned judgment came <\/p>\n
to   the   conclusion   that   the   disputed   construction   by   the   developer   was   totally <\/p>\n
illegal, and also concluded that there was nothing wrong with the acquisition of  <\/p>\n
F.P. No.110.   Having held so, it passed the impugned order which can be split <\/p>\n
into  two parts.    The first  part  of the order  is arising  out of  the determination  <\/p>\n
concerning the legality of the construction, and it can be seen in sub-paragraphs  <\/p>\n
(a)   to   (d)   of   para   227   of   the   judgment.   The   order   pertaining   to   costs   is <\/p>\n
connected with this part and it is in sub-paragraph (f).   The second part of the  <\/p>\n
order  is  regarding  appropriate   criminal  investigation   which  is  in   sub-paragraph <\/p>\n
(e).\n<\/p>\n<\/p>\n
(ii)      In the first part of its order the Division Bench directed:-<\/p>\n
          (a)    the cancellation of the commencement certificate dated 20.8.1996, <\/p>\n
                 3.5.1997   and   3.7.1998,   and   occupation   certificate   dated <\/p>\n
                 20.12.1997,<\/p>\n<\/blockquote>\n
          (b)    the PMC and its Commissioner to call upon the landowner and the <\/p>\n
                 developer to restore F.P. No.110 to the position prior to the date of <\/p>\n
                 the earliest of the commencement certificates, failing which these <\/p>\n
                 authorities  will  take action  to demolish  the disputed  construction, <\/p>\n
                 and   collect   the   cost   of   such   action   from   the   landowner   and   the <\/p>\n
                 developer,<\/p>\n
                                                 98<\/span><\/p>\n<\/blockquote>\n
        (c)      the   PMC   to   move   an   application   for   restoration   of   First   Appeal <\/p>\n
                 (stamp no.18615 of 1994), <\/p>\n
                                                       and<\/p>\n<\/blockquote>\n
        (d)      rejected the prayer to revive first appeal without the demolition of <\/p>\n
                 the structure.\n<\/p><\/blockquote>\n
        (f)      the Division Bench directed payment of cost of Rs. 10,000\/- each <\/p>\n
                 by  the State of Maharashtra, the PMC, the then Chief Minister, the <\/p>\n
                 then   Minister   of   State,   the   developer   and   the   Municipal <\/p>\n
                 Commissioner to the petitioners.\n<\/p><\/blockquote>\n
107.              In view of the gross illegality in the order of the State Government <\/p>\n
and   PMC   in   granting   the   development   permission,   the   direction   (a)   for <\/p>\n
cancellation of Commencement Certificates and Occupation Certificate had to be <\/p>\n
issued and the same can not be faulted.  As far as the direction (c) is concerned, <\/p>\n
it   was   noted   by   the   High   Court   that   the   PMC   had   been   forced   by   the   State  <\/p>\n
Government to apply for withdrawal of its First Appeal so that the judgment of <\/p>\n
the   Civil   Court   remains   undisturbed.     Since   the   High   Court   came   to   the <\/p>\n
conclusion that there were nothing illegal about the acquisition, the First Appeal  <\/p>\n
had to be restored.  The direction is therefore fully justified.  We may note that <\/p>\n
PMC has already filed an application for restoration of the First Appeal.  <\/p>\n
        Direction to demolish the disputed building, and rejection of the <\/p>\n
        objection based on alleged delay and laches<\/p>\n
108.             The   direction   (b)   in   the   impugned   order   was   issued   basically   on <\/p>\n
two   grounds.     Firstly,   the   development   permission   had   no   legal   validity  <\/p>\n
                                               99<\/span><\/p>\n
whatsoever, and secondly it was clearly a case of showing favouritism by going  <\/p>\n
out   of   the   way   and   circumventing   the   law.     Besides,   since   the   challenge   to <\/p>\n
acquisition was being rejected, it would not have been proper to postpone the <\/p>\n
demolition of the disputed construction on the ground of pendency of the First  <\/p>\n
Appeal,   since   the   construction   was   absolutely   illegal.     Hence,   the   High   Court <\/p>\n
issued direction (d) as above.\n<\/p>\n<\/p>\n
109.            The demolition was objected to by the appellants amongst others <\/p>\n
on the ground that there was delay and laches in moving  the petitions to the  <\/p>\n
High  Court.    It   was   submitted  that  if  the   petitioners  were  vigilant,   they  could  <\/p>\n
have   seen   the   building   coming   up   from   November   1996   onwards,   but   the <\/p>\n
petitions have been filed only in August 1998.  According to them by the time the <\/p>\n
petitions were filed, the tenants’ wing was complete, and even the other wing of  <\/p>\n
Sundew Apartments was nearing completion The Division Bench has rejected this <\/p>\n
submission in paragraph 220 of its judgment by observing that merely because a <\/p>\n
construction is coming up, a citizen cannot assume that it is illegal or that the <\/p>\n
developer had obtained the construction permission in a manner contrary to law.  <\/p>\n
Besides,   when   the   petitioner   in   Writ   Petition   No.   4434   of   1998   (who   is   a <\/p>\n
Corporator) sought the information about the construction, he was informed by <\/p>\n
PMC that the same could not be made available under the relevant rules, though  <\/p>\n
no such rules were  shown to the Division  Bench.   The High Court has on the  <\/p>\n
other hand noted that as a matter of fact even the construction of the building  <\/p>\n
meant for the tenants was actually said to have commenced in March 1997 only. <\/p>\n
Hence, in the facts of the present case it could not be said that the writ petitions <\/p>\n
                                                10<\/span><\/p>\n
suffered on account of delay or laches, and therefore the High Court was right in  <\/p>\n
rejecting that contention.\n<\/p>\n<\/p>\n
110.             With   respect   to   the   direction   for   demolition,   we   may   note   that <\/p>\n
similar   direction   was   given   way   back   in   the   case   of  Pratibha   Cooperative <\/p>\n
Housing Society Vs. State of Maharashtra reported in 1991 (3) SCC 341. <\/p>\n
The appellant society situated in a prime area in Mumbai had added eight upper  <\/p>\n
floors in excess of the F.S.I. permissible, and the Municipal Corporation directed <\/p>\n
removal   of   those   floors.   The   petitioner   society   challenged   the   order   of   the <\/p>\n
Municipal Corporation.  A Division Bench of the Bombay High Court dismissed the <\/p>\n
Writ Petition, but permitted the society to give proposals to reduce the area of <\/p>\n
construction upto the permissible limit.  During the pendency of the appeal from <\/p>\n
the judgment of the High Court, the proposal of the society was examined by the <\/p>\n
Municipal Corporation and was found unacceptable. While dismissing the appeal, <\/p>\n
this Court noted in the aforesaid judgment that `the tendency of raising unlawful <\/p>\n
construction   by   the   builders   in   violation   of   the   rules   and   regulations   of   the  <\/p>\n
Corporation was rampant’ in the city of Mumbai.  Thereafter it observed in para 6 <\/p>\n
of the judgment:-\n<\/p>\n<\/p>\n
                 “We   are   also   of   the   view   that   the   tendency   of   raising
\n        unlawful   construction   and   unauthorised   encroachments   is
\n        increasing in the entire country and such activities are required to
\n        be dealt with by firm hands.<\/p><\/blockquote>\n
                 Having noted so it upheld the demolition of the upper eight floors <\/p>\n
and further observed in the last para of the judgment `<\/p>\n
                 “Before   parting   with   the   case   we   would   like   to   observe
\n        that this case should be a pointer to all the builders that making  <\/p>\n
                                                10<\/span><\/p>\n
        of   unauthorised   constructions   never   pays   and   is   against   the
\n        interest of the society.”\n<\/p>\n<\/p>\n
111.            The observations of the Court however, have had no effect. In M.I <\/p>\n
Builders  Pvt. Ltd. Vs. Radhey Shyam  Sahu & Ors.  reported  in  1999   (6) <\/p>\n
SCC 464, the issue was with respect to the retention of a public amenity viz. a <\/p>\n
park   in   a   congested   area   of   city   of   Lucknow.     The   park   was   of   historical <\/p>\n
importance and also an environmental necessity.  The Lucknow Mahapalika had  <\/p>\n
permitted   the   appellant   builder   to   put   up   a   shopping   complex   and   a   parking <\/p>\n
facility thereon.   The appellant was permitted to do so without calling any bids <\/p>\n
and for hardly any monetary gain to the Municipal Corporation. This was also a  <\/p>\n
case where the construction was on the basis of an agreement with the builder <\/p>\n
which agreement amounted to a fraud on the powers of the Mahapalika, and a  <\/p>\n
clear case of favouritism, as in the present case. This Court dismissed the appeal <\/p>\n
and directed the demolition of the disputed construction and observed as follows  <\/p>\n
in para 73 of its judgment:-\n<\/p>\n<\/p>\n
                “73.  ……. This Court in numerous decisions has held
\n        that no consideration should be shown to the builder or
\n        any   other   person   where   construction   is   unauthorised.
\n        This  dicta is now almost bordering the rule of law.  Stress
\n        was   laid   by   the   appellant   and   the   prospective   allottees   of   the
\n        shops to exercise judicial discretion in moulding the relief.  Such
\n        a   discretion   cannot   be   exercised   which   encourages   illegality   or
\n        perpetuates an illegality.   Unauthorised construction, if it is
\n        illegal and cannot be compounded, has to be demolished.
\n        There   is   no   way   out.     Judicial   discretion   cannot   be   guided   by
\n        expediency.  Courts are not free from statutory fetters.  Justice is
\n        to be rendered in accordance with law……”\n<\/p><\/blockquote>\n
                                                                (emphasis supplied)<\/p>\n
                                                  10<\/span><\/p>\n<\/blockquote>\n
112.             In   the   present   case,   one   would   have   thought   of   retaining   the <\/p>\n
building   and   utilising   it   for   a   school.     The   PMC   had   shown   its   willingness   to <\/p>\n
consider such a proposal.  But the developer wanted to retain half of the flats of  <\/p>\n
this ten storey building which would have been contrary to the provision in the <\/p>\n
Development   Plan,   and   hence   the   proposal   fell   through.     That   apart,   such   a <\/p>\n
compounding would have been contrary to the above dicta in M.I Builders case <\/p>\n
(supra).  There  is  no redeeming  feature  whatsoever  in  the  present  case.    It  is <\/p>\n
clearly a case of misuse of one’s position for the benefit of a relative leading to  <\/p>\n
an action which is nothing short of fraud on one’s power and also on the statute.\n<\/p><\/blockquote>\n
There   is   no   reason   for   us   to   interfere   in   the   order   passed   by   the   High   Court <\/p>\n
directing the demolition of the disputed buildings.\n<\/p>\n<\/p>\n
113.             The   building   constructed   for   the   tenants   is   meant   for <\/p>\n
accommodating them, and it has been stated on behalf of the developer that he <\/p>\n
is not interested in dis-housing them. The learned senior counsel for PMC Shri  <\/p>\n
R.P.   Bhat   has   also   stated   on   instructions,   that   PMC   has   no   objection   to   the  <\/p>\n
retention   of   the   building   constructed   for   the   erstwhile   occupants   of   the   plot, <\/p>\n
however these occupants will now have to continue in that building as tenants of <\/p>\n
PMC.   As far as these occupants are concerned, their status at the highest was <\/p>\n
that of tenants of the landowner.  They claim to have been residing on this plot  <\/p>\n
for over fifty years, and appear to be belonging to economically weaker section <\/p>\n
of the society.   Their only request during the acquisition proceedings was that <\/p>\n
they should be accommodated on this very plot of land.  It is another matter that <\/p>\n
in   the   High   Court   and   in   this   Court   they   supported   the   landowner   and   the <\/p>\n
                                                10<\/span><\/p>\n
developer, in view of the promise given to them that in the event the landowner <\/p>\n
and the developer succeed, the tenants will get ownership rights.  Now that the <\/p>\n
plea of the landowner and the developer is rejected, the best that can happen to  <\/p>\n
these occupants is to get the tenancy rights on this very plot of land.  That apart, <\/p>\n
in view of their long stay on this plot, they had to be rehabilitated.  The offer of  <\/p>\n
PMC   to   accommodate   them   on   the   very   plot   of   land   is   more   than   fair,   and <\/p>\n
deserves acceptance.  Since, the tenants were already in possession of a part of <\/p>\n
the plot for residential purpose, they are being continued to remain on that plot <\/p>\n
for that very purpose.  In that event, the tenants may not be entitled to receive <\/p>\n
any monetary compensation since this offer is as per their original demand and it <\/p>\n
very   much   compensates   them.     However,   since   the   amount   of   compensation  <\/p>\n
awarded to them was too meagre, if they have collected it, they need not return <\/p>\n
the same to PMC.  This being the position, in our view, the main operative order <\/p>\n
passed   by   the   High   Court   needs   to   be   modified   appropriately.     In   the <\/p>\n
circumstances, we modify and restrict the operative order of demolition only to <\/p>\n
the   extent   it   directs   the   removal   \/   demolition   of   the   building   meant   for   the <\/p>\n
persons other than these tenants (i.e. the ten storey building named as Sundew  <\/p>\n
Apartments).\n<\/p>\n<\/p>\n
114.               We may as well mention at this stage that as far as this building  <\/p>\n
viz. Sundew Apartments is concerned, no one, except a bank had come forward  <\/p>\n
to claim any third party rights, or prejudice on account of the order of demolition <\/p>\n
passed by the High Court in spite of the well publicised litigation of this matter. <\/p>\n
The concerned bank had advanced a loan to the developer against the security  <\/p>\n
                                                 10<\/span><\/p>\n
of two flats in that building, and it intervened only at the last stage of passing of  <\/p>\n
the   order.     The   Division   Bench   has   rightly   rejected   the   claim   of   the   bank   in <\/p>\n
paragraphs   224   to   226   of   its   judgment   by   observing   that   the   court   could   not <\/p>\n
accept the contention of the bank that it was not aware of the illegality on the <\/p>\n
part   of   the   developer.   The   court   did   not   accept   the   bank’s   plea   of   innocently  <\/p>\n
advancing the money, since the mortgage was executed on 13.8.1998, whereas  <\/p>\n
the allegations concerning the illegality of this transaction had appeared in the <\/p>\n
newspapers   right   from   March   1998.     The   bank   should   have   considered   the <\/p>\n
matter in depth before advancing the loan. In any case the demolition will only  <\/p>\n
extinguish its security though its claim against the developer may remain.<\/p>\n
        Adverse remarks, and the direction for criminal investigation<\/p>\n
115.             The second part of the operative order in the impugned judgment <\/p>\n
was based on the adverse inferences drawn by the Division Bench against the <\/p>\n
then Chief Minister, the Minister of State and the Municipal Commissioner.  The <\/p>\n
petitioners had infact sought a prosecution against all of them.   However, after <\/p>\n
considering the facts and circumstances of the case the court was not inclined to <\/p>\n
grant that relief, without appropriate prior investigation.  Therefore, with respect <\/p>\n
to this prayer the Court passed an order which is contained in paragraph 227 (e)  <\/p>\n
in two parts as follows:\n<\/p>\n<\/p>\n
(i)     to   direct   the   State   of   Maharashtra   to   make   appropriate   investigation <\/p>\n
against   the   then   Chief   Minister,   the   Minister   of   State   and   the   Municipal  <\/p>\n
Commissioner by an impartial agency, and <\/p>\n
                                                  10<\/span><\/p>\n
(ii)    if   satisfied   that   any   criminal   offences   have   been   committed   by   the <\/p>\n
aforesaid respondents in the discharge of their duties, to take such action as is <\/p>\n
warranted in law.\n<\/p>\n
These three appellants have therefore made two fold prayers viz. expunging the <\/p>\n
adverse   observations,   and   setting   aside   the   direction   for   appropriate <\/p>\n
investigation to be followed by such action as is warranted in law.<\/p>\n
        Adverse   remarks   by   the   Division   Bench   against   the   Municipal <\/p>\n
             Commissioner, Minister of State and the then Chief Minister:-<\/p>\n
             Adverse remarks against the Municipal Commissioner<\/p>\n
116.             Apart from other allegations, it has been specifically alleged in Writ  <\/p>\n
Petition  4434 of 1998 that the then Municipal Commissioner  “wilted  under the <\/p>\n
pressure of the Chief Minister…..”, “acted in flagrant disregard to the provisions <\/p>\n
of   the   law”,   and   “with   a   view   to   favour   his   son-in-law   Shri   Girish   Vyas   acted  <\/p>\n
illegally and mala fide”.  As we have seen from the notings on the file, initially he <\/p>\n
did take a stand which could be said to be as per the record, and in consonance  <\/p>\n
with  law.        In his  affidavit  before  the  High  Court,  he took  the  stand that  he <\/p>\n
acted under the directions of the Minister, and hence, he should not be blamed  <\/p>\n
for the ultimate decision.   Shri Narshima, learned senior counsel appearing  for <\/p>\n
him   drew   our   attention   to   the   Maharashtra   Government   Rules   of   Business <\/p>\n
framed   under   Article   166   of   the   Constitution   in   this   behalf.     He   also   tried   to <\/p>\n
defend the Commissioner’s action by invoking Section 154 of the MRTP Act which <\/p>\n
lays   down   amongst   others   that   the   Planning   Authority   has   to   carry   out   the <\/p>\n
directions   and   instructions   of   the   State   Government   for   the   efficient <\/p>\n
                                                 10<\/span><\/p>\n
administration of the act. The Division Bench declined to accept this explanation.  <\/p>\n
We have already dealt with this submission and recorded our reasons as to why <\/p>\n
we also cannot accept this reliance on  Section 154.\n<\/p>\n<\/p>\n
117.             (i)      It   was   submitted   on   behalf   of   the   Commissioner   that   he <\/p>\n
brought the correct legal position to the notice of the Minister of State to begin  <\/p>\n
with, but ultimately had to give up due to the instructions from the Minister of  <\/p>\n
State, meaning thereby that he cannot be blamed since he was acting under the <\/p>\n
directions of his superiors.  Reliance was placed in this behalf on the proposition  <\/p>\n
in   paragraph   16  of  Tarlochan   Das   Vs.   State   of   Punjab   &   Ors  reported   in <\/p>\n
2001 (6) SCC 260 to the following effect:-\n<\/p>\n<\/p>\n
                 “No   government   servant   shall   in   the   performance   of   his
\n        official duties, or in the exercise of power conferred on him, act
\n        otherwise   than   in   his   best   judgment   except   when   he   is   acting
\n        under the direction of his official superior.”\n<\/p><\/blockquote>\n
(ii)    This defence cannot help him much if we see his actions atleast on two <\/p>\n
occasions.   Firstly, when he made his report dated 17.4.1996 to the Minister of <\/p>\n
State, he overlooked the fact that the reservation on this plot was for a primary  <\/p>\n
school, and not merely for a municipal primary school.  As has been noted by the <\/p>\n
Division Bench, two private schools had already come up on the adjoining plots  <\/p>\n
as per  the D.P.  provision  itself. Besides, two renowned  educational institutions <\/p>\n
had applied way back for this plot of land for running of schools thereon.   The  <\/p>\n
Commissioner   did   not   place   this   very   vital   information   before   the   Minister   of <\/p>\n
State   in   his   report.     On   the   other   hand   he   stated   that   Prabhat   Road   being   a <\/p>\n
higher middle class area, a municipal school may not get adequate students. The <\/p>\n
Division Bench has therefore, observed in paragraph 143 of its judgment, that  <\/p>\n
                                                     10<\/span><\/p>\n
his report was “far from truth”.  Secondly, he bypassed the general body of the <\/p>\n
Municipal Corporation in the matter of deleting the reservation on F.P. No. 110  <\/p>\n
inspite of being aware of the correct legal position, and his attention having been <\/p>\n
specifically drawn thereto by the senior law officer of PMC.<\/p>\n
118.              Both these acts on the part of the Municipal Commissioner clearly <\/p>\n
amounted   to   failure   on   his   part   to   discharge   his   duty   correctly   for   which   he <\/p>\n
cannot blame anybody else.  This is the least that is got to be stated about his <\/p>\n
conduct by this Court.   The Division Bench has commented that he acted “as a <\/p>\n
loyal soldier perhaps more loyal to the king than king himself”, which was “with a <\/p>\n
view   to   please   his   bosses”.     It   is   true   that   in   the   first   meeting   called   by   the  <\/p>\n
Minister of State for UDD, it was pointed out on behalf of PMC that the land had <\/p>\n
been acquired.   The Commissioner had also pointed out that if the reservation <\/p>\n
was to be reduced or to be deleted, the permission of the Municipal Corporation  <\/p>\n
will have to be obtained.  His report of 17.4.1996, cannot however be said to be <\/p>\n
fully satisfactory and he failed in his duty when he permitted the by-passing of <\/p>\n
the Municipal Corporation in the matter of deletion of reservation on F.P. No.110, <\/p>\n
which he claims to have done in view of the direction  from the Chief  Minister  <\/p>\n
under the D.C. Rules.  We can say that a high ranking IAS Officer was expected  <\/p>\n
to show his mettle, and he failed to come up to the expectations, but noticing <\/p>\n
that   he   had   no   personal   interest   in   the   matter,   and   he   was   acting   under   the  <\/p>\n
directions   of   his   superior,   the   Division   Bench   could   have   avoided   making   the <\/p>\n
particular remarks against him.\n<\/p>\n<\/p>\n
                  The conduct of the Minister of State<\/p>\n
                                                10<\/span><\/p>\n
119.            In  paragraph  3  of  Writ   Petition   4434  of  1998,  there  is   a  specific <\/p>\n
allegation against the then Minister of State as well as the then Chief Minister of  <\/p>\n
“the blatant misuse of executive powers”,  “with a sole objective  of ensuring  a <\/p>\n
substantial   monetary   benefit   for   M\/s   Vyas   Constructions.   The   defence   of   the <\/p>\n
Minister of State was that he tried to find out a workable solution, and acted on <\/p>\n
the advice of the officers of his department.  As we have seen from the notings <\/p>\n
and as observed by the Division Bench that initially the Minister of State was also  <\/p>\n
of   the   view   that   Section   37   of   the   MRTP   Act   should   be   followed.     In   this <\/p>\n
connection, it is relevant to note that after receiving the letter dated 17.4.1996  <\/p>\n
from   the   Municipal   Commissioner,   the   UDD   department   prepared   its   note   in <\/p>\n
which it specifically recommended that only half the area of the concerned plot <\/p>\n
be released to the landowner, and that he should accommodate the tenants in  <\/p>\n
his  development  of the  property  on  that portion  of  land,  and an  action  under <\/p>\n
Section 37 be taken for that purpose.  Thus, the departmental note was in fact  <\/p>\n
as per the initial stand taken by the Minister of State, yet strangely enough, he <\/p>\n
declined   to   approve   the   note.     He   contended   in   his   affidavit   before   the   High <\/p>\n
Court that he was persuaded to accept the suggestion to act under the D.C. Rule <\/p>\n
13.5   under   which   a   similar   action   had   been   taken   in   Kothrud,   Pune.     No <\/p>\n
particulars of that Kothrud precedent were however, placed before the Court.  <\/p>\n
120.            The Minister of State also tried to contend that until the last he had <\/p>\n
no   knowledge   of   Shri   Murudkar’s   connection   with   the   son-in-law   of   Chief <\/p>\n
Minister. In view of the facts which have emerged on the record, it was just not <\/p>\n
possible to accept this contention.  The Division Bench has given its reasons for  <\/p>\n
                                                   10<\/span><\/p>\n
the same and has commented on his conduct as follows at the end of paragraph <\/p>\n
140:-\n<\/p>\n<\/p>\n
                 “…….It is difficult to account for the anxiety of the Minister
\n         of State, UDD, to find out some solution to either reduce the area
\n         of reservation or shift it to a new place.  Only tenable explanation
\n         is that it was a design to ensure that the representation made by
\n         Murudkar  on November 20, 1995 was  allowed.    It is  not being
\n         suggested   by   any   one   that   respondent   No.6   was   personally
\n         interested in the proposal or that he had any particular interest in
\n         seeing that this proposal was sanctioned.  We, therefore, have to
\n         fall   back   on   the   inference   that   respondent   No.6   was   under
\n         pressure from respondent No.5.”\n<\/p><\/blockquote>\n
121.             In this behalf it is relevant to note the conduct of the Minister of  <\/p>\n
State from stage to stage.\n<\/p>\n<\/p>\n
(i)      Firstly,   he   entertained   the   application   of   Shri   Karandikar   directly   at   his  <\/p>\n
own level, and thereafter immediately called a meeting of high ranking officers to <\/p>\n
take a decision thereon.  Would such other applications receive such a direct and <\/p>\n
expeditious attention?\n<\/p>\n<\/p>\n
(ii)     Secondly,   he   directed   the   Municipal   Commissioner,   a   very   high   ranking <\/p>\n
officer, to carry out a personal inspection and to make a report.  Would he issue  <\/p>\n
such directions in the case of other similar applications? <\/p>\n
(iii)    Thirdly, after the Commissioner’s report, the UDD department supported <\/p>\n
the   initial   view   of   the   Minister   of   State   that   only   a   part   of   F.P.No.   110   be  <\/p>\n
released, and that too under Section 37.  Why did he not approve that note?<\/p>\n
(iv)     He   acted   as   if   he   was   waiting   for   the   Commissioner   to   state   that   two <\/p>\n
schools had come up in the adjoining plots, so that he can release F.P. No. 110  <\/p>\n
from the reservation for a Primary school.  Did he not realise that those schools <\/p>\n
had come up as per the Development plan itself?\n<\/p>\n
\n                                                 11<\/span><\/p>\n
(v)      He   relied   upon   an   alleged   precedent   of   release   of   the   land   at   Kothrud <\/p>\n
under D.C. Rule 13.5 without having the particulars thereof on record.  <\/p>\n
(vi)     He   tried   to   put   the   blame   on   the   Municipal   Commissioner   and   the <\/p>\n
Municipal Officers for the decision arrived at.   It is true that the Commissioner <\/p>\n
failed in his duties to place full facts on record.  At the same time the fact  that  <\/p>\n
the Minister of State ignored the initial notes of his own department and of PMC, <\/p>\n
which were in accordance with law, and went on acting and instructing as per <\/p>\n
the suggestions of Shri Karandikar, which led to the convenient reports cannot <\/p>\n
be lost sight of. He acted clearly  against the provisions of law though he was  <\/p>\n
fully informed about the same.  Would he have acted in such a manner on any  <\/p>\n
other similar application?\n<\/p>\n<\/p>\n
(vii)    Would he not be aware that the file was called by the Chief Minister after <\/p>\n
receiving the report from the Municipal Commissioner, and for what purpose?  <\/p>\n
The   natural   inference   which   flows   from   all   this   conduct   is   that   right   from   the <\/p>\n
beginning,   the   Minister   of   State   was   aware   about   Shri   Murudkar’s   connection  <\/p>\n
with the son-in-law of Chief Minister, and therefore he acted for the benefit of <\/p>\n
the developer, obviously at the instance of the then Chief Minister as inferred by <\/p>\n
the Division Bench.  We have no reason to disagree.\n<\/p>\n<\/p>\n
         Observations against the Chief Minister<\/p>\n
122. (i)         The two Writ Petitions contain serious allegations against the then <\/p>\n
Chief Minister at various places.  Thus in paragraph 2 of the Writ Petition 4433 of <\/p>\n
1998, it is alleged that the then Chief Minister misused his executive powers and <\/p>\n
                                                   11<\/span><\/p>\n
authority   for   the   purpose   of   securing   benefits   for   his   near   relatives,   and   in <\/p>\n
paragraph   3   it   is   specifically   stated   that   this   was   for   ensuring   a   substantial <\/p>\n
monetary benefit for M\/s Vyas Constructions.  A specific averment in paragraph 2 <\/p>\n
in this behalf is as follows:-\n<\/p>\n<\/p>\n
                 “It   is   the   claim   of   the   petitioner   that   on   account   of   this
\n        close   relationship,   the   executive   powers   vested   in   the   State   of
\n        Maharashtra   have   either   been   misused   and\/or   actions   which
\n        cannot be taken  in  exercise  of the executive  powers  under the
\n        Act are presumably take in purported exercise of such executive
\n        powers with a full knowledge that the actions are illegal and ultra
\n        vires the provisions of the Act.”\n<\/p><\/blockquote>\n
(ii)    As   we   have   noted   earlier,   on   24.4.1996   the   initial   report   made   by   the <\/p>\n
Municipal Commissioner dated 17.4.1996 was called for the perusal of the then  <\/p>\n
Chief Minister.   The basic order dated 21.8.1996 granting no objection, thereby <\/p>\n
approval to the release of the reservation on F.P. No. 110 was that of the then <\/p>\n
Chief Minister. The disputed permission dated 3.9.1996 was issued in pursuance <\/p>\n
thereto.    There is a note dated 22.7.1998 on record  which was meant for the  <\/p>\n
perusal   of   the   then   Chief   Minister   to   enable   him   to   answer   the   probable <\/p>\n
questions concerning this matter in the assembly. The last order proposed at the  <\/p>\n
Government level was also brought to his notice, and he was going to sign it, but <\/p>\n
for   the   advice   of   the   Additional   Chief   Secretary   that   since   his   son-in-law   had <\/p>\n
written  a letter  by  that  time  to the  Commissioner,  the  papers  be  sent  for  the <\/p>\n
signature of the Minister of State.  Thus it is quite clear that he was aware about  <\/p>\n
the   developments   in   the   matter,   and   the   orders   therein   were   issued   with   his <\/p>\n
approval and knowledge.  He cannot therefore,  escape the responsibility  for all  <\/p>\n
the illegal actions in this matter.\n<\/p>\n
\n                                                 11<\/span><\/p>\n
(iii)    The learned senior counsel for the then Chief Minister Shri Shyam Diwan <\/p>\n
objected to the language used in paragraphs 111 and 131 of the judgment which <\/p>\n
accused   him   of   “pettifogging   or   obfuscation   of   facts”.     It   is   stated   in   the <\/p>\n
judgment   that   the   then   Chief   Minister   “furtively”   sought   a   copy   of   the   report  <\/p>\n
dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared by his <\/p>\n
private secretary to the Minister of State for Urban Development calling for the  <\/p>\n
file for the then Chief Minister’s perusal. It was submitted that there was no need <\/p>\n
for  the then Chief  Minister  to  act secretively.    In our  view,  there is no use in <\/p>\n
taking   umbrage   behind   the   language   used   by   the   Court.     The   question   is <\/p>\n
whether   the   inference   that   the   Chief   Minister   had   called   for   the   file   for   his <\/p>\n
perusal can be disputed. A private secretary will not make such a note unless the  <\/p>\n
file is required by the Chief Minister. In our view the inference was fully justified.  <\/p>\n
It was also sought to be contended that the petitions were politically motivated <\/p>\n
and one of the petitioners did not have clean antecedents.  We are concerned in  <\/p>\n
the   present   case   with   respect   to   serious   allegations   against   the   then   Chief <\/p>\n
Minister misusing his office for the benefit of his son-in-law and in that process <\/p>\n
destroying a public amenity in the nature of a primary school.  Such submissions <\/p>\n
cannot   take   away   the   seriousness   of   the   charge,   and   the   Chief   Minister   must <\/p>\n
squarely explain and justify his actions.\n<\/p>\n<\/p>\n
123. (i)         With respect to the Chief Minister calling the file for his perusal, the <\/p>\n
Division Bench has posed a question as to whether it was an idle curiosity. “Why <\/p>\n
were   the   Chief   Minister   and   the   Minister   of   State   interested   in   one   particular <\/p>\n
case?   What   momentous   public   policy   decision   was   sought   to   be   taken   in   this <\/p>\n
                                                  11<\/span><\/p>\n
matter?”     Shri Murudkar  was  not  someone  for   whom  the   administration  could  <\/p>\n
have moved so fast.   It was very clear that the Chief Minister  was very much  <\/p>\n
interested   in   knowing   the   progress   of   the   case   all   throughout.     The   obvious  <\/p>\n
inference was that the then Chief Minister and the Minister of State took keen <\/p>\n
interest in the matter only because Shri Murudkar had appointed the son-in-law <\/p>\n
of the Chief Minister as his developer.\n<\/p>\n<\/p>\n
(ii)    The Division Bench has dealt with the affidavit of the then Chief Minister, <\/p>\n
some of the relevant events in this behalf and then held that the conduct of the  <\/p>\n
then   Chief   Minister   definitely   leads   to   the   conclusion   that   he   was   very   much <\/p>\n
interested in knowing the progress of the case pertaining to F.P. No.110, and he  <\/p>\n
wanted to apprise himself of report dated 17.4.1996 made by the Commissioner <\/p>\n
of PMC.  Therefore, the Division Bench held at the end of para 131 as follows:-<\/p>\n
                  “We   are   afraid,   unless   the   Court   is   naove   and   its
\n        credulousness is stretched to the extreme, the inference has to
\n        be that, not only was there an attempt on the part of respondent
\n        No.5 to `concern’ himself with the file even prior to August 1996,
\n        but also that respondent No.5 had taken an active interest in the
\n        case.”\n<\/p><\/blockquote>\n
124. (i)             Then we come to the   merits of the disputed permission dated <\/p>\n
3.9.1996   which   was   in   pursuance   to   the   order   of   the   Chief   Minister   dated <\/p>\n
21.8.1996 viz. “All actions be taken in accordance with law.   No objection”.   It <\/p>\n
was   sought   to   be   contended   on   his   behalf   that   he   had   clearly   stated   that   all  <\/p>\n
actions   be   taken   in   accordance   with   law.     But   we   cannot   ignore   that   he   had  <\/p>\n
simultaneously   stated   in   his   remarks   of   approval,   “no   objection”   to   the   note <\/p>\n
containing the proposal which had been put up before him, and which was not in <\/p>\n
                                                  11<\/span><\/p>\n
accordance with law.  The note clearly stated that the reservation on the land at  <\/p>\n
Lohegaon be shifted from agricultural zone to residential zone by following the <\/p>\n
procedure   under   Section   37   of   the   MRTP   Act.     But   as   far   as   shifting   of <\/p>\n
reservation from F.P. No. 110 was concerned, a different yardstick, namely that <\/p>\n
of D.C. Rule 13.5 was applied for which there was no explanation whatsoever. <\/p>\n
Thus he gave no objection to an illegal proposal as proposed in the note, and <\/p>\n
directed that all actions be taken in accordance with law which will only mean <\/p>\n
that the proposal be somehow fitted in four corners of law.  <\/p>\n
(ii)    The letter dated 17.4.1996 from the Municipal Commissioner had already <\/p>\n
been forwarded for his perusal. This report had clearly stated to begin with that <\/p>\n
the departmental permission had been rejected because the property was under <\/p>\n
reservation.   The report of the Municipal Commissioner also stated that in case  <\/p>\n
the change was proposed in the use of the property, permission had to be taken <\/p>\n
from the Pune Municipal Corporation.   Could not the Chief Minister understand <\/p>\n
that D.C. Rule 13.5 could not be applied to F.P. No.110 in the manner in which it <\/p>\n
was   suggested?     Could   he   not   understand   that   the   permission   of   Municipal <\/p>\n
Corporation was required as per the law?  In the teeth of these legal provisions <\/p>\n
he   gave   no   objection   to   the   proposal   to   shift   the   reservation   of   F.P.   No.   110 <\/p>\n
under D.C. Rule 13.5, and to shift the reservation of the plot at Lohegaon under  <\/p>\n
D.C. Rule 37.  In between there is a noting of 22.7.1998 which recorded that the  <\/p>\n
Chief   Minister   had   to   be   briefed   about   this   matter   appropriately   for   him   to  <\/p>\n
answer the questions in  the legislative  assembly.    The note has also recorded <\/p>\n
that   there   was   a   criticism   about   this   matter   in   the   local   newspaper. <\/p>\n
                                                   11<\/span><\/p>\n
Subsequently, thereafter when the land at Mundhwa or elsewhere was sought to <\/p>\n
be exchanged in place of Lohegaon, the letter of Shri Girish Vyas was already on <\/p>\n
the   file   of   the   PMC   and   the   Government.     Still   he   was   going   to   sign   note   of <\/p>\n
approval  but for  the advice  of  the Additional  Chief  Secretary.    This shows the  <\/p>\n
keen   interest   of   the   then   Chief   Minister   in   the   matter   and   it   can   certainly   be  <\/p>\n
inferred that he was so acting for the benefit of his son-in-law. <\/p>\n
125.             According to Shri Naphade, the learned counsel appearing for the <\/p>\n
developer, the inference of  mala fides  is misconceived,  as it is contrary to the <\/p>\n
material   on   record.     He   submitted   that   the   Municipal   Commissioner’s   report <\/p>\n
dated   17.4.1996   was   not   found   to   be   untrue   or   false   by   any   authority.     He <\/p>\n
emphasized that as per the report (i) There are about 36 structures on the land <\/p>\n
which are occupied by tenants; (ii) Half the area of the plot is encumbered; (iii) <\/p>\n
There   are   two   educational   institutions   in   the   vicinity   of   the   plot   and   11 <\/p>\n
educational   institutions   in   the   area;   (iv)   The   acquisition   of   the   plot   has   been <\/p>\n
declared illegal by the Court; (v) The locality in question is inhabited by higher <\/p>\n
middle class people and there may not be an appropriate response to a Primary <\/p>\n
School;   (vi)   Considering   the   funds   available   the   Pune   Municipal   Corporation   is <\/p>\n
inclined to develop school on some other plot reserved for school.  He defended <\/p>\n
the decision of the then State Government and the actions taken in pursuance <\/p>\n
thereof   by   submitting   that   (i)   There   is   no   detriment   to   Public   Interest,   as   no <\/p>\n
Municipal   Primary  School  was  required  in   the  locality.  (ii)   The  Appellant   made  <\/p>\n
alternative plot available at his own cost in the locality where a Municipal Primary <\/p>\n
School was required. (iii) The developer paid a sum of Rs. 25 lakhs to the PMC <\/p>\n
                                                11<\/span><\/p>\n
for construction of Municipal Primary School wherever it wanted to put it up. (iv)  <\/p>\n
Tenants occupying dilapidated structures were rehabilitated on the very plot and  <\/p>\n
were to get the ownership right free of cost.\n<\/p>\n<\/p>\n
126.            These arguments are based on an erroneous premise that the plot <\/p>\n
was   reserved   for   a   Municipal   Primary   school.     It   was   reserved   for   a   Primary <\/p>\n
school and not merely a Municipal Primary school.  It is on this false premise that <\/p>\n
the   Commissioner   had   opined   that   this   being   a   higher   middle   class   area,   a <\/p>\n
Municipal   Primary   school   may   not   get   an   appropriate   response.   The   two <\/p>\n
adjoining plots were also reserved for Primary schools as per the D.P. plan, and <\/p>\n
thereon two private schools had already come up.  That cannot be a ground to <\/p>\n
say that this plot be released from reservation.  The Municipal Commissioner had  <\/p>\n
failed   to   place   on   record   a   very   material   information   that   one   renowned <\/p>\n
educational   institution   had   sought   this   very   plot   for   educational   activities   way  <\/p>\n
back   in   1986.     The   Municipal   Commissioner   had   not   specified   as   to   what   he <\/p>\n
meant by the particular area when he stated that eleven educational institutions <\/p>\n
had come up therein.  The plot had been reserved for a Primary school after an <\/p>\n
elaborate planning process wherein the requirements of the particular area are  <\/p>\n
appropriately considered.  This is not the first case where there would be three  <\/p>\n
adjoining plots reserved for Primary schools.  There are many such schools and  <\/p>\n
educational complexes which always require adjoining plots and are developed <\/p>\n
accordingly.  The submission that the acquisition had been declared illegal by the <\/p>\n
Court was also a very convenient submission ignoring that the Municipal Appeal  <\/p>\n
therefrom   was   pending   in   the   High   Court.     There   was   no   reason   for   the <\/p>\n
                                               11<\/span><\/p>\n
Corporation   to   be   deterred   by   the   encumbrances   on   the   plot,   since   the <\/p>\n
compensation therefor had already been arrived at as per the law, and it did not  <\/p>\n
cast much burden on the Corporation.  The report of the Municipal Commissioner  <\/p>\n
was clearly made “to please the bosses” as observed by the Division Bench, and <\/p>\n
could not be accepted as the basis for a valid legal action.   The acceptance of  <\/p>\n
the offer of the developer would mean that whenever anybody wants to delete a <\/p>\n
reservation of a public amenity in a prime area, he can throw the money to the <\/p>\n
Municipal Corporation and say that let the amenity come up elsewhere, but the <\/p>\n
reservation  be deleted.    Such  an approach  will  mean destruction  of the  entire <\/p>\n
planning  process   and   deserves  to  be  rejected.     None   of  these   arguments   can <\/p>\n
whitewash the material on the record which clearly leads to the inference, that <\/p>\n
the   impugned   actions   were   motivated   to   benefit   the   son-in-law   of   then   Chief <\/p>\n
Minister.\n<\/p>\n<\/p>\n
127. (i)        The   learned   counsel   for   the   then   Chief   Minister   objected   to   the <\/p>\n
inference   drawn   by   the   Division   Bench   that   the   then   Chief   Minister   had <\/p>\n
pressurized the officers into taking an illegal action.   It was submitted that the <\/p>\n
notings on the file indicated that there were deliberations on issues involved in <\/p>\n
the matter at the government level on a number of occasions.   The course of <\/p>\n
action   suggested   in   the   PMC   note   dated   26.7.1996   was   approved   at   several <\/p>\n
levels   of   authority   before   the   same   coming   to   the   then   Chief   Minister.   The <\/p>\n
Deputy   Secretary   in   the   UDD   Shri   Vidyadhar   Despande   has   also   stated   in   his <\/p>\n
affidavit that there was no pressure from the office of the Chief Minister or for <\/p>\n
himself.  That apart there were cogent factors explaining why there was no need <\/p>\n
                                                    11<\/span><\/p>\n
for yet another primary school in the locality and generally the thinking was that  <\/p>\n
public interest would gain from the proposed course of action.  <\/p>\n
(ii)     As far as this latter submission about there being no need of one more <\/p>\n
primary school, one may immediately note the scant respect that the then Chief  <\/p>\n
Minister had for the cause of education and the method of planning.  One fails to  <\/p>\n
see as to what public interest was going to be achieved by preventing a primary  <\/p>\n
school from coming up on a designated plot.  There is no use stating that instead <\/p>\n
a primary school will come up in another area.  It will of course come up in that  <\/p>\n
area if it is so required.  But there is no need to tinker with a school in another  <\/p>\n
area, provided by a proper planning process.\n<\/p>\n<\/p>\n
(iii)    We   have   already   noted   the   manner   in   which   the   matter   had   been <\/p>\n
handled. The application of the developer was entertained directly at the level of <\/p>\n
the Minister of State.  Immediately a meeting of high ranking officers was called. <\/p>\n
Inspite   of   a   clear   stand   taken   by   the   offices   of   UDD   as   well   as   by   PMC,   the <\/p>\n
Minister   of   State   asked   the   Commissioner,   a   high   ranking   officer   to   make   a <\/p>\n
personal site inspection and then a report, only because the developer submitted <\/p>\n
that two schools had come up on the adjoining plots.   Was it not clear to the  <\/p>\n
Minister of State that those two schools had come up as per the provisions of the <\/p>\n
D.P. plan?  The Municipal Commissioner in his report, and thereafter the officers <\/p>\n
of the UDD, initially submitted that if deletion of reservation was to be resorted, <\/p>\n
the   action   will   have   to   be   initiated   under   Section   37   of   the   Act.     It   is   only  <\/p>\n
because of the insistence of the developer that the resort to D.C. Rule 13.5 was  <\/p>\n
adopted.  During the course of all these developments the file had been called by <\/p>\n
                                                 11<\/span><\/p>\n
the Secretary to the Chief Minister. Were these not clear signals to the officers as <\/p>\n
to what was the interest of the then Chief Minister?     There will never be any  <\/p>\n
direct evidence of the officers being pressurized, nor will they say that they were <\/p>\n
so   pressurized.     Ultimately   one   has   to   draw   the   inference   from   the   course   of  <\/p>\n
events, the manner in which the officers have acted and changed their stand to <\/p>\n
suit the developer and the fact that the son-in-law of the then Chief Minister was <\/p>\n
the   developer   of   the   project.     As   we   have   noted   earlier   the   affidavit   of   the <\/p>\n
Commissioner clearly indicated  that he tried  to place  the correct  legal position  <\/p>\n
initially   but   ultimately   had   to   give   in   from   the   pressure   from   the   superiors.  <\/p>\n
Unless one is naove one will have to agree with the conclusion which the Division <\/p>\n
Bench had drawn in para 136 of its judgment to the following effect:- <\/p>\n
                 “We  are left  with   only  one conclusion  which  we have to
\n        draw   from   the   facts   on   record   and,   to  quote   the  words   of  the
\n        petitioners, “the conduct of respondent No.5 itself indicates that
\n        he had `pressurized’ the officials into taking an illegal action” and
\n        this, in our view, is certainly misuse of executive powers.”\n<\/p><\/blockquote>\n
128.               The learned senior counsel who had appeared for the then Chief <\/p>\n
Minister in the High Court had relied upon amongst others on the judgment of  <\/p>\n
this Court in  E.P. Royappa vs. State of Tamil Nadu<\/a> [AIR 1974  SC 555] . <\/p>\n
Krishna Iyer J. had observed in paragraph 92 of his judgment in that matter that <\/p>\n
“we  must  not  also  overlook  that  the burden  of  establishing  mala fides  is very <\/p>\n
heavy on the person who alleges it.  The allegations of mala fides are often more <\/p>\n
easily made than proved, and the very seriousness of such allegations demands <\/p>\n
proof of a high order of credibility.”  Shri Royappa, while challenging his transfer <\/p>\n
had   made   allegations   of  mala   fides  against   the   then   Chief   Minister   of   Tamil <\/p>\n
Nadu, and this Court had refused to accept those allegations. The Division Bench <\/p>\n
                                                 12<\/span><\/p>\n
noted   in   the   presently   impunged   judgment   that   Shri   Royappa   was   a   Chief <\/p>\n
Secretary,   and   hardly   any   Chief   Secretary   of   a   State   Government   was   known <\/p>\n
who   would  be  in  any  way   hamstrung,  or  stopped   from   getting   information   or <\/p>\n
documents on the basis of which he makes out the case of  mala fides  against <\/p>\n
the officer  holding  a public  office.    The Division  Bench rightly observed at the <\/p>\n
end of para 129 as follows:-\n<\/p>\n<\/p>\n
                “We do agree with Mr. Salve that a finding of mala fides
\n        against public authority, that too of the rank of Chief Minister of
\n        the   State,   should   not   be   lightly   drawn.     It   is   quite   a   serious
\n        matter.   But, if the Court is required to draw such an inference
\n        after examining the record, we feel that the Court cannot flinch
\n        from its duty.”\n<\/p><\/blockquote>\n
129.            In   one   earlier   case   i.e  Shivajirao   Nilangekar   Patil   v.   Dr. <\/p>\n
Mahesh Madhav Gosavi<\/a> [1987 (1) SCC 227], a single Judge of the Bombay <\/p>\n
High Court had held that in the facts of that case it could be reasonably held that  <\/p>\n
the marksheet of the M.D. Examination was tampered to benefit the daughter of  <\/p>\n
Shri Shivajirao, the then Chief Minister of Maharashtra.   The Division Bench of <\/p>\n
the  Bombay High  Court  took the  view that the circumstances  relied  on clearly <\/p>\n
formed a reasonable and cogent basis for the adverse comments on the conduct <\/p>\n
of   Shri  Shivaji Rao.    The  Division  Bench   had   noted   that  the  single   Judge   had  <\/p>\n
followed   the   tests   led   down   by   this   Court   earlier   in  State   of   U.P.   Vs. <\/p>\n
Mohammad Naim [AIR 1964 SC 703] which were as follows:-\n<\/p>\n<\/p>\n
                “10.   ……(a)   whether   the   party   whose   conduct   is   in
\n        question is before the court or has an opportunity of explaining
\n        or   defending   himself;   (b)   whether   there   is   evidence   on   record
\n        bearing on that conduct justifying the remarks; and (c) whether it
\n        is   necessary   for   the   decision   of   the   case,   an   in   integral   part
\n        thereof,   to   animadvert   on   that   conduct.     It   has   also   been  <\/p>\n
                                                  12<\/span><\/p>\n
        recognized   that   judicial   pronouncements   must   be   judicial   in
\n        nature, and should not normally depart from sobriety, moderation
\n        and reserve.”\n<\/p><\/blockquote>\n
Having approved the approach of the High Court this Court held in the facts of  <\/p>\n
Shri Shivajirao’s Case as follows:-\n<\/p>\n<\/p>\n
                 “50.     There is no question in this case of giving any clear
\n        chit   to  the   appellant   in   the  first   appeal   before   us.    It  leaves   a
\n        great deal of suspicion  that tampering was done to please Shri
\n        Patil or at his behest.  It is true that there is no direct evidence.
\n        It   is   also   true   that   there   is   no   evidence   to   link   him   up   with
\n        tampering.     Tampering   is   established.     The   relationship   is
\n        established.     The   reluctance   to   face   a   public   enquiry   is   also
\n        apparent.     Apparently   Shri   Patil,   though   holding   a   public   office
\n        does not believe that “Ceaser’s wife must be above suspicion…..”\n<\/p><\/blockquote>\n
130.             The facts of the present case are stronger than those in the case of <\/p>\n
Shri  Shivajirao  Nilangekar  (supra).    Here  also a relationship  is established. <\/p>\n
The basic order dated 21.8.1996 in this matter granting no objection to an illegal <\/p>\n
action  is signed  by the then Chief Minister  himself.    That was after  personally  <\/p>\n
calling for the file containing the report dated 17.4.1996 sent by the Municipal  <\/p>\n
Commissioner   much   earlier.     The   entire   narration   shows   that   the   then   Chief <\/p>\n
Minister   had   clear   knowledge   about   this   particular   file   all   throughout,   and   the <\/p>\n
orders   were   issued   only   because   the   developer   was   his   son-in-law,   and   he <\/p>\n
wanted to favour him.  Ultimately, one has to draw the inference on the basis of  <\/p>\n
probabilities.     The   test   is   not   one   of   being   proved   guilty   beyond   reasonable <\/p>\n
doubt, but one of preponderance of probabilities.\n<\/p>\n<\/p>\n
        Appropriate actions taken in a Public Interest Litigation<\/p>\n
                                                  12<\/span><\/p>\n
131.             It   was   contended   before   the   High   Court   that   the   rule   as   to   the <\/p>\n
construction of pleadings should be strictly applied in the present case and that <\/p>\n
the material as contained in the petitions did not justify any further probe.  The <\/p>\n
High Court rightly rejected that argument.  There was a sufficient foundation in <\/p>\n
the petition for the further steps to be taken by the High Court.   The petitions <\/p>\n
before   the   High   Court   were   in   the   nature   of   public   interest   litigation.     The  <\/p>\n
purpose in such matters is to draw the attention of the High Court to a particular  <\/p>\n
state of facts, and if the Government action  is found to be contrary to law or  <\/p>\n
affecting the rights of the citizen, the court is required to intervene.  There was a <\/p>\n
specific plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that  <\/p>\n
“the fundamental and legal right of the citizens of Pune of submitting objections <\/p>\n
and suggestions to any modification in the Final Development Plan u\/s 37 of the <\/p>\n
act has been infringed”, and that was solely on account of the developer being a  <\/p>\n
close   relation   of   the   then   Chief   Minister   who   was   also   the   Minister   for   Urban <\/p>\n
Development which controls the appointments of a Municipal Commissioner to a <\/p>\n
Corporation   established   under   the   B.P.M.C   Act   1949.     A   prima   facie   case   had  <\/p>\n
been   made   up   in   the   petitions   which   got   supported   when   the   High   Court   in <\/p>\n
exercise of its Writ Jurisdiction rightly called for the relevant files from the State <\/p>\n
Government and the PMC to explain and defend their decisions.<\/p>\n
132.             Public   Interest   Litigation   is   not   in   the   nature   of   adversarial <\/p>\n
litigation,   but   it   is   a   challenge   and   an   opportunity   to   the   government   and   its  <\/p>\n
officers   to   make   basic   human   rights   meaningful   as   observed   by   this   Court   in <\/p>\n
paragraph 9 of  Bandhua Mukti Morcha Vs. Union of India [AIR 1984 SC <\/p>\n
                                                  12<\/span><\/p>\n
802]. By its very nature the PIL is inquisitorial in character.   Access to justice  <\/p>\n
being   a   Fundamental   Right   and   citizen’s   participatory   role   in   the   democratic <\/p>\n
process itself being a constitutional value, accessing the Court will not be readily  <\/p>\n
discouraged.  Consequently, when the cause or issue, relates to matters of good <\/p>\n
governance in the Constitutional sense, and there are no particular individuals or <\/p>\n
class of persons who can be said to be injured persons, groups of persons who  <\/p>\n
may   be   drawn   from   different   walks   of   life,   may   be   granted   standing   for <\/p>\n
canvassing the PIL.  A Civil Court acts only when the dispute is of a civil nature,  <\/p>\n
and the action is adversarial. The Civil Court is bound by its rules of procedure.  <\/p>\n
As against that the position of a Writ Court when called upon to act in protection  <\/p>\n
of the rights of the citizens can be stated to be distinct.  <\/p>\n
133.             It was submitted on behalf of the appellants that inference should <\/p>\n
not   be  drawn   merely  on  the  basis  of   the  notings  in   the  file,   and   the  remarks <\/p>\n
made by the Division Bench ought to be expunged.  In this connection we may  <\/p>\n
profitably   refer   to   the   observations   of   this   Court   in  P.K.   Dave   Vs.   Peoples’ <\/p>\n
Union of Civil Liberties (Delhi) & Ors.  reported in  1996 (4) SCC 262.   A <\/p>\n
Writ   Petition   by   way   of   a   PIL   was   filed   before   the   Delhi   High   Court   alleging  <\/p>\n
commission of gross financial irregularities by the Director of Govt. Hospitals in <\/p>\n
Delhi.     Notings   in   the   office   file   produced   by   the   Government   showed   that <\/p>\n
despite   suggestions   made   by   the   Health   Secretary   and   Chief   Secretary   to   the <\/p>\n
Delhi Administration, Lt. Governor of the Administration had refused to take any  <\/p>\n
action against the Director.  The High Court had passed strictures against the Lt.  <\/p>\n
Governor.  The learned senior counsel Shri Venugopal appearing on behalf of the <\/p>\n
                                                12<\/span><\/p>\n
appellant Lt. Governor had submitted that the strictures based on the basis of <\/p>\n
the notings should be expunged.   Rejecting the submission this Court observed <\/p>\n
in paragraph 8 as follows:-\n<\/p>\n<\/p>\n
                 “8.   …..   Where   the   relevant   departmental   files   were
\n        produced before the court by the Government and the court on
\n        scrutiny of the same came to the conclusion that the decision has
\n        not   been   taken   fairly,   then   the   court   would   be   entitled   to
\n        comment on the role of such person who took the decision….. In
\n        such   circumstances   if   the   contention   of   Mr.   Venugopal   is
\n        accepted then no administrative authority and his conduct would
\n        come   under   the   judicial   scrutiny   of   the   court.     That   an
\n        administrative order is subjected to judicial review is by now the
\n        settled   position  and  no  longer   remains  res   integra.    This   being
\n        the   position   we   fail   to   appreciate   the   contentions   of   Mr.
\n        Venugopal that the notings in the file or the orders passed by the
\n        Secretary and Chief Secretary as well as the Governor should not
\n        have   formed   the   basis   of   the   strictures   passed   against   the
\n        appellant.”\n<\/p><\/blockquote>\n
134.             Reliance was placed on the judgment of this Court in Jasbir Singh <\/p>\n
Chhabra Vs. State of Punjab reported in  2010 (4) SCC 192  to submit that <\/p>\n
the   issues   and   policy   matters   which   are   required   to   be   decided   by   the <\/p>\n
Government are dealt with by several functionaries, some of whom may record <\/p>\n
notings on the files, and such notings recorded in the files cannot be made basis <\/p>\n
for a finding of  mala fides.  There can be no dispute with the preposition when <\/p>\n
policy matters are involved as in that case where the question was whether the <\/p>\n
State   Government’s   refusal   to   sanction   change   of   land   use   from   industrial   to <\/p>\n
residential   was   vitiated   due   to  mala   fides  claimed   to   be   arising   out   of   such <\/p>\n
notings.  In the present case we are concerned with the notings not concerning <\/p>\n
with   any   policy   matter,   but   with   respect   to   the   application   on   behalf   of   an  <\/p>\n
individual landowner to delete the reservation of a primary school on his land, <\/p>\n
                                               12<\/span><\/p>\n
where the developer is the son-in-law of the Chief Minister. The notings in the <\/p>\n
present   case   are   quite   clear   and   the   inference   of  mala   fides  therefrom   is <\/p>\n
inescapable.\n<\/p>\n<\/p>\n
135.            We have noted the observations and the conclusions arrived at by <\/p>\n
the High Court with respect to the conduct of the then Municipal Commissioner, <\/p>\n
the Minister of State and the then Chief Minister. The High Court has drawn its <\/p>\n
inferences and made the remarks after following  the dicta in State of U.P. Vs. <\/p>\n
Mohd. Naim (supra). Having seen the totality of facts and guidelines laid down <\/p>\n
by this Court in P.K. Dave’s case (supra), we do not see that we can draw any <\/p>\n
other inference then the one which was drawn by the Division Bench.  We will be <\/p>\n
failing in our duty if we do not draw the inference which clearly arises from the <\/p>\n
notings on the file, the affidavits filed by the persons concerned and the law with <\/p>\n
respect to drawing such inference.  In the circumstances, we refuse to expunge <\/p>\n
any of these remarks rendered by the Division Bench.\n<\/p>\n<\/p>\n
        Orders for Criminal Investigation<\/p>\n
136.            Having drawn the above inferences, and having made the adverse <\/p>\n
remarks   about   the   conduct   of   the   then   Chief   Minister,   Minister   of   State   and  <\/p>\n
Municipal   Commissioner   the   impugned   judgment   has   directed   the   State   of <\/p>\n
Maharashtra   to   initiate   appropriate   investigation   against   them   through   an <\/p>\n
impartial agency, and if satisfied that any criminal offence has been committed <\/p>\n
to take such action as warranted in law.\n<\/p>\n<\/p>\n
137.            Now, as far as this direction is concerned, we have to note that as <\/p>\n
far as the Municipal Commissioner is concerned, though the Division Bench did <\/p>\n
                                                  12<\/span><\/p>\n
not approve his conduct and squarely criticized him for being more loyal to the  <\/p>\n
king   then   the   king   himself,   yet   in   terms   it   observed   in   paragraph   144   of   the  <\/p>\n
judgment, that it did not attributive any motive to him for his actions. This para  <\/p>\n
reads as follows:-\n<\/p>\n<\/p>\n
                 “144.     While   we   may   not   attribute   any   motive   to
\n        respondent   No.10   for   his   actions,   we   cannot   approve   of   the
\n        actions   taken   by   him.     We   have   already   pointed   out   that   the
\n        action   of   withdrawing   the   appeal   was   wrong.     In   our   view,
\n        respondent   No.10   would   have   served   the   interests   of   the   PMC
\n        better if he had placed his dilemma before the PMC and sought a
\n        resolution   thereof,   particularly   when   he   believed   that   the
\n        Government was issuing him instructions contrary to law, which
\n        he   believed   to   exist.     But,   perhaps,   this   might   not   have   been
\n        clear   to  him  at  the  time  when  he  acted  to  please  his   masters.
\n        While   holding   that   the   actions   taken   by   the   tenth   respondent
\n        were contrary to the provisions of the BPMC Act, MRTP Act and
\n        Development Control Rule No.13.5, we find it difficult to accept
\n        the suggestion in the writ petitions that he was a willing party to
\n        the process of abuse of executive powers.”\n<\/p><\/blockquote>\n
That   apart,   Shri   Narsimha,   learned   senior   counsel   appearing   for   the   Municipal <\/p>\n
Commissioner drew our attention to Section 147 of the MRTP Act which provides <\/p>\n
that no suit, prosecution or other legal proceedings shall lie against any person <\/p>\n
for anything which is in good faith done or entitled to be done under this Act or <\/p>\n
any rules or regulations made therein.  Reliance was also placed on Section 486 <\/p>\n
of the B.P.M.C. Act 1949 which is also to the similar effect.  The Division Bench  <\/p>\n
has also clearly stated that it did not accept the suggestion in the writ petitions  <\/p>\n
that the Commissioner was willingly a party to the process of abuse of executive <\/p>\n
powers.  This being the position, in our view it would not be correct to direct any <\/p>\n
criminal investigation against the then Municipal Commissioner, and in our view  <\/p>\n
to that extent the order of the Division Bench requires to be corrected.<\/p>\n
                                                   12<\/span><\/p>\n
138.              As far as the Minister of State is concerned also, the Division Bench <\/p>\n
commented  adversely on his conduct  in paragraph  140 of its judgment.  Yet it  <\/p>\n
also observed in paragraph 142 that there was nothing on record as suggested  <\/p>\n
that he had any personal motive in the matter. The relevant observation at the  <\/p>\n
end of paragraph 142 reads as follows:-\n<\/p>\n<\/p>\n
                  “…….All that we can say is that there is nothing on record
\n         to suggest that he had any other personal motive in the matter.
\n         We, therefore, infer that respondent No.6 must have done it to
\n         oblige   his   senior   colleague   i.e.   the   then   Chief   Minister,
\n         respondent No.5.”\n<\/p><\/blockquote>\n
The Division Bench has thus specifically inferred that whatever he has done, was  <\/p>\n
done   to   oblige   his   senior   Minister   i.e.   the   then   Chief   Minister   and   he   had   no <\/p>\n
personal motive in the matter.  In the circumstances, he is entitled to a benefit  <\/p>\n
of doubt and, therefore, the direction for criminal investigation against him also <\/p>\n
can not be sustained.\n<\/p>\n<\/p>\n
139.              As far as the Chief Minister is concerned, however, it is very clear  <\/p>\n
that he was fully aware about the application made by Shri Karandikar who was <\/p>\n
a  camouflage   for  his  son-in-law.  He  had  called  for   the  file  after   the  Municipal <\/p>\n
Commissioner sent his report in April, 1996.   But for his personal interest, the <\/p>\n
Government and the Municipal officers would not have taken the stand and put <\/p>\n
up the notes that he wanted to be on record.   The shifting  of the reservation  <\/p>\n
from F.P. No.110 was clearly untenable under D.C. Rule 13.5.  The by-passing of <\/p>\n
the Municipal Corporation and ignoring the mandate of Section 37 was also not  <\/p>\n
expected, yet he gave “no objection” to a contrary and totally unjustified order.  <\/p>\n
The   earlier   part   of   his   order   viz.   “all   action   be   taken   in   accordance   with   law”  <\/p>\n
                                                12<\/span><\/p>\n
therefore becomes meaningless, and is nothing but a camouflage.  The conduct <\/p>\n
on the part of the then Chief Minister prima-facie amounts to a misfeasance and  <\/p>\n
Shri   Wasudev,   learned   senior   counsel   appearing   for   the   original   petitioners  <\/p>\n
submits that such a conduct ought to be sternly dealt with.   <\/p>\n
140.            The   learned   counsel   for   the   Chief   Minister   on   the   other   hand <\/p>\n
pointed out that there were no prayers for prosecution in the Writ Petitions, and <\/p>\n
the   direction   contained   in   paragraph   227   (e)   was   beyond   the   prayers.     The <\/p>\n
question therefore, is whether the operative order passed by the High Court in  <\/p>\n
this behalf is legally tenable.  The direction given by the High Court in paragraph  <\/p>\n
227 (e) is as follows:-\n<\/p>\n<\/p>\n
                “(e)  As   far   as   prayer   for   directing   prosecution   against
\n        Respondent Nos. 5, 6 and 10 is concerned, after considering the
\n        facts and circumstances of the case we are not inclined to grant
\n        this   relief.   ……   Nonetheless,   we   direct   the   first   respondent   to
\n        make appropriate investigations through an impartial agency and,
\n        if satisfied that any criminal offences have been committed by the
\n        aforesaid   respondents   in   the   discharge   of   their   duties,   to   take
\n        action as is warranted in law.”\n<\/p><\/blockquote>\n
Respondent Nos. 5, 6 and 10 were the then Chief Minister, the then Minister of <\/p>\n
State and the then Municipal Commissioner.\n<\/p>\n<\/p>\n
141.               In this context we have to take note of the judgment of a bench <\/p>\n
of three Judges of this Court in this behalf on a review petition in the case of  <\/p>\n
Common Cause, A Registered Society Vs. Union of India & Ors. reported <\/p>\n
in 1999 (6) SCC 667. The Minister concerned in that matter had committed the <\/p>\n
misfeasance   of   allotment   of   retail   outlets   of   petroleum   products   out   of   the <\/p>\n
discretionary quota in an arbitrary and  mala fide  manner.   Such allotments had <\/p>\n
been   set  aside  by  a  bench  of  two   Judges  by  its  judgment   between   the  same  <\/p>\n
                                                12<\/span><\/p>\n
parties  reported  in  1996   (6)  SCC  530.   The Court  had thereafter  passed  an <\/p>\n
order   that   the   Minister   concerned   shall   show   cause   within   two   weeks   why   a <\/p>\n
direction be not issued to the appropriate police authority to register a case and <\/p>\n
initiate prosecution against him for criminal breach of trust of any other offence  <\/p>\n
under   law.     This   Court   held   in   paragraph   174   of   its   judgment   on   the   review  <\/p>\n
petition as follows:-\n<\/p>\n<\/p>\n
                 “174.   The other direction, namely, the direction to CBI to
\n        investigate “any other offence” is wholly erroneous and cannot be
\n        sustained.     Obviously,   direction   for   investigation   can   be   given
\n        only if any offence is, prima facie, found to have been committed
\n        or   a   person’s   involvement   is   prima   facie   established,   but   a
\n        direction to CBI to investigate whether any person has committed
\n        an offence or not cannot be legally given.  Such a direction would
\n        be   contrary   to   the   concept   and   philosophy   of   “LIFE”   and
\n        “LIBERTY”   guaranteed   to   a   person   under   Article   21   of   the
\n        Constitution.     This   direction   is   in   complete   negation   of   various
\n        decisions of this Court in which the concept of “LIFE” has been
\n        explained in a manner which has infused “LIFE” into the letters of
\n        Article 21.”\n<\/p><\/blockquote>\n
142.             It could be perhaps argued that the misfeasance on the part of the <\/p>\n
then Chief Minister and the Minister of State amounts to a criminal misconduct  <\/p>\n
also under Section 13 (1) (d) of the Prevention of Corruption Act, 1988.  In the <\/p>\n
present case however, there is neither any such reference to this section nor any <\/p>\n
prima facie finding in the impugned judgment rendered way back in March 1999. <\/p>\n
In  the  circumstances   in  view   of  the  proposition  of   law  enunciated  by  a  larger <\/p>\n
bench in the above case it is difficult to sustain the direction to make appropriate <\/p>\n
investigations   through   an   impartial   agency,   and   if   satisfied   that   any   criminal  <\/p>\n
offence  has  been  committed   by  the  aforesaid  respondents   in  the  discharge   of <\/p>\n
their duties, to take action as is warranted in law.\n<\/p>\n
\n                                                 13<\/span><\/p>\n
        Epilogue<\/p>\n
        Approach Towards the Planning Process<\/p>\n
143.             The   significance   of   planning   in   a   developing   country   cannot   be <\/p>\n
understated.  After years of foreign rule when we became independent, leaders <\/p>\n
of   free   India   realized   that   for   advancement   of   our   society   and   for   an   orderly  <\/p>\n
progress, we had to make a planned effort.  Infact, even prior to independence <\/p>\n
the leaders of the freedom struggle had applied their mind to this aspect.   The <\/p>\n
leaders of Indian Freedom Movement and particularly Pandit Jawaharlal Nehru, <\/p>\n
our first Prime Minister always emphasised democratic planning as a method of <\/p>\n
nation building and economic and social upliftment of Indian society.  In March, <\/p>\n
1931, the Indian National Congress at its Karachi Session passed a resolution to <\/p>\n
the effect that the State shall take steps to secure that ownership and control of  <\/p>\n
the material resources of the community are so distributed as best to subserve  <\/p>\n
the   common   good.     Pandit   Nehru   drafted   this   resolution   in   consultation   with <\/p>\n
Gandhiji and described it as a very short step in a socialist direction.   In 1938, <\/p>\n
the   National   Planning   Committee   of   the   Congress   was   set   up   under   the <\/p>\n
Chairmanship of Pandit Nehru who has been aptly described as “the Architect <\/p>\n
of democratic  planning in India”. The Economic  Programme Committee of <\/p>\n
the Congress under his Chairmanship made a recommendation of setting up a  <\/p>\n
permanent Planning Commission in 1947-48.\n<\/p>\n<\/p>\n
144.             Shri   H.K.   Paranjape,   (1924-1993)   an   eminent   Economist   and   a <\/p>\n
former  Member  of Monopolies  and Restrictive  Trade Practices Commission and <\/p>\n
                                                 13<\/span><\/p>\n
former  Chairman of Railway  Tariff Committee,  in his monograph  “Jawaharlal  <\/p>\n
Nehru   and   the   Planning   Commission”  (published   by   Indian   Institute   of <\/p>\n
Public Administration in September, 1964) notes that Nehru linked up the work <\/p>\n
of   Planning   Commission   directly   to   the   Fundamental   Rights   and   the   Directive <\/p>\n
Principles  enunciated   in  the  Constitution.     Nehru  always  wanted  to   make  sure <\/p>\n
that   the   objectives   of   the   Planning   Commission   were   well   defined   and   well <\/p>\n
understood.  In this article, the author further records as follows:-<\/p>\n
                   “When the National Development Council was discussing
\n        the   Draft   Outline   of   the   Third   Plan   in   September,   1960,   he
\n        emphasized the importance of remembering “what our objectives
\n        were and not to lose ourselves in the forest of details that a Plan
\n        had   to   deal   with.     Because,   always   when   one   considered   the
\n        detail, one must look back on the main thing, how far it fitted in
\n        with the main issue; otherwise, it was out of place”.\n<\/p><\/blockquote>\n
Nehru believed in participation of different sections of society in framing of the <\/p>\n
Plan.  The emphasis has always been amongst others to put land to the best use <\/p>\n
from the point of the requirements of our society, since land is a scarce resource  <\/p>\n
and it has to be used for the optimum benefit of the society<\/p>\n
145.             As   stated   above,   we   adopted   the   model   of   democratic   planning <\/p>\n
which   involves   the   participation   of   the   citizens,   planners,   administrators,  <\/p>\n
Municipal bodies and the Government as is also seen throughout the MRTP Act.  <\/p>\n
Thus when it comes to the Development Plan for a city, at the initial stage itself  <\/p>\n
there   is   the   consideration   of   the   present   and   future   requirements   of   the   city.  <\/p>\n
Suggestions   and   objections   of   the   citizens   are   invited   with   respect   to   the  <\/p>\n
proposed   plan,   and   then   the   planners   apply   their   mind   to   arrive   at   the   plan  <\/p>\n
which is prepared after a scientific study, and which will be implemented during  <\/p>\n
                                                       13<\/span><\/p>\n
the next 10 to 20 years as laid down under Section 38 of the MRTP Act.   The <\/p>\n
plan is prepared after going through the entire gamut under Sections 21 to 30 of  <\/p>\n
the   Act,   and   then   only   the   sanction   is   obtained   thereto   from   the   State  <\/p>\n
Government.   That is why the powers to modify the provisions of the plan are <\/p>\n
restricted as noted earlier.    If the plan is to be tinkered for the benefit of the  <\/p>\n
interested persons, or for those who can approach the persons in authority, then <\/p>\n
there is no use in having a planned development.   Therefore, Section 37 which <\/p>\n
permits  the  minor  modifications  provides  that  even that  should  not  result  into <\/p>\n
changing the character of the development plan, prior whereto also a notice in <\/p>\n
the gazette is required to be issued to invite suggestions and objections.  Where <\/p>\n
the modification is of a substantial nature, then the procedure under Section 29 <\/p>\n
of   the   Act   requiring   a   notice   in   the   local   newspapers   inviting   objections   and <\/p>\n
suggestions   from   the   citizens   is   to   be   resorted   to.     Even   the   deletion   of <\/p>\n
reservation under Section 50 is at the instance of the appropriate authority only  <\/p>\n
when it does not want the land for the designated purpose. <\/p>\n
146.               The idea is that once the plan is formulated, one has to implement <\/p>\n
it   as   it   is,   and   it   is   only   in   the   rarest   of   the   rare   cases   that   you   can   depart  <\/p>\n
therefrom.  There is no exclusive power given to the State Government, or to the <\/p>\n
planning   authority,   or   to   the   Chief   Minister   to   bring   about   any   modification,  <\/p>\n
deletion or de-reservation, and certainly not by a resort to any of the D.C. Rules.  <\/p>\n
All these constituents of the planning process have to follow the mandate under  <\/p>\n
Section 37 or 22A as the case may be if any modification becomes necessary.  <\/p>\n
That is why this Court observed in paragraph 45 of  Chairman, Indore Vikas <\/p>\n
                                                13<\/span><\/p>\n
Prodhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors. reported in <\/p>\n
2007 (8) SCC 705 as follows:-\n<\/p>\n<\/p>\n
                 “45.     Town   and   country   planning   involving   land
\n         development of the cities which are sought                  to   be   achieved
\n         through   the   process   of   land   use,   zoning   plan   and   regulating
\n         building   activities   must   receive   due   attention   of   all   concerned.
\n         We are furthermore not oblivious of the fact that such planning
\n         involving   highly   complex   cities   depends   upon   scientific
\n         research,   study   and   experience   and,   thus,   deserves   due
\n         reverence.\n<\/p><\/blockquote>\n
                                                                   (emphasis supplied)<\/p>\n
         Role of Municipalities<\/p>\n<\/blockquote>\n
147.             The   municipalities   which   are   the   planning   authorities   for   the <\/p>\n
purpose of bringing about the orderly development in the municipal areas, are <\/p>\n
given a place of pride in this entire process.  They are expected to render wide <\/p>\n
ranging functions which are now enumerated in the constitution. They are now <\/p>\n
given   a   status   under   Part   IX   A   of   the   Constitution   introduced   by   the   74th <\/p>\n
Amendment   w.e.f.   1.6.1993.     Article   243W   lays   down   the   powers   of   the <\/p>\n
Municipalities to perform the functions which are listed in the Twelfth Schedule. <\/p>\n
For performing these functions, planning becomes very important. This Twelfth <\/p>\n
Schedule contains the following items:-\n<\/p>\n<\/p>\n
                                         “TWELFTH SCHEDULE<\/p>\n
                                             [Article 243W]<\/p>\n<\/blockquote>\n
         1.      Urban planning including town planning.\n<\/p><\/blockquote>\n
         2.      Regulation of land-use and construction of buildings.\n<\/p><\/blockquote>\n
         3.      Planning for economic and social development.\n<\/p><\/blockquote>\n
         4.      Roads and bridges.\n<\/p><\/blockquote>\n
         5.      Water supply for domestic, industrial and, commercial purposes.\n<\/p><\/blockquote>\n
         6.      Public health, sanitation conservancy and solid waste management.\n<\/p><\/blockquote>\n
         7.      Fire services.\n<\/p><\/blockquote>\n
                                                13<\/span><\/p>\n
        8.      Urban   forestry,   protection   of   the  environment   and   promotion   of
\n                ecological aspects.\n<\/p><\/blockquote>\n
        9.      Safeguarding the interests of weaker sections of society, including
\n                the handicapped and mentally retarded.\n<\/p><\/blockquote>\n
        10.     Slum improvement and upgradation.\n<\/p><\/blockquote>\n
        11.     Urban poverty alleviation.\n<\/p><\/blockquote>\n
        12.     Provision of urban amenities and facilities such as parks, gardens,
\n                playgrounds.\n<\/p><\/blockquote>\n
        13.     Promotion of cultural, educational and aesthetic aspects.\n<\/p><\/blockquote>\n
        14.     Burials   and   burial   grounds;   cremations,   cremation   grounds   and
\n                electric crematoriums.\n<\/p><\/blockquote>\n
        15.     Cattle ponds; prevention of cruelty to animals.\n<\/p><\/blockquote>\n
        16.     Vital statistics including registration of births and deaths.\n<\/p><\/blockquote>\n
        17.     Public  amenities including street lighting, parking lots, bus stops
\n                and public conveniences.\n<\/p><\/blockquote>\n
        18.     Regulation of slaughter houses and tanneries.”\n<\/p><\/blockquote>\n
The primary powers of the Municipal Corporations in Maharashtra such as PMC  <\/p>\n
(excluding some Municipal Corporations which have their separate enactments) <\/p>\n
and   of   the   Standing   Committees   of   the   Corporations   are   enumerated   in   the <\/p>\n
BPMC   Act.     Coupled   with   those   powers,  the   Municipal   Corporations  have  their <\/p>\n
powers under MRTP Act.   These are the statutory powers, and they cannot be <\/p>\n
bypassed.\n<\/p>\n<\/p>\n
        The Responsibility of the Municipal Commissioner and the Senior <\/p>\n
          Government Officers<\/p>\n
148.            The Municipal Commissioner is the Chief Executive of the Municipal <\/p>\n
Corporation.  It is his responsibility to act in accordance with these laws and to  <\/p>\n
protect the interest of the Corporation.   The Commissioner is expected to place <\/p>\n
the complete and correct facts before the Government when any such occasion  <\/p>\n
arises, and stand by the correct legal position.   That is what is expected of the  <\/p>\n
senior   administrative   officers   like   him.   That   is   why   they   are   given   appropriate <\/p>\n
                                                13<\/span><\/p>\n
protection under the law.  In this behalf, it is worthwhile to refer to the speech of <\/p>\n
Sardar   Vallabhbhai   Patel,   the   first   Home   Minister   of   independent   India,   made <\/p>\n
during the Constituent Assembly Debates, where he spoke about the need of the  <\/p>\n
senior secretaries giving their honest opinions which may not be to the liking of  <\/p>\n
the Minister.   While speaking about the safeguards for the Members of Indian  <\/p>\n
Civil Service (now Indian Administrative Service), he said- <\/p>\n
                “…To-day, my Secretary can write a note opposed to my
\n        views.   I have given that freedom to all my Secretaries.   I have
\n        told them `if you do not give your honest opinion for fear that it
\n        will displease your Minister, please then you had better go.  I will
\n        bring another Secretary.’ I will never be displeased over a frank
\n        expression of opinion. That is what the Britishers were doing with
\n        the Britishers.  We are now sharing the responsibility.  You have
\n        agreed to share responsibility.  Many of them with whom I have
\n        worked, I have no hesitation in saying that they are patriotic, as
\n        loyal and as sincere as myself.”\n<\/p><\/blockquote>\n
(Ref: Constituent Assembly Debates. Vol.10 p. 50)<\/p>\n
Now unfortunately, we have a situation where the senior officers are changing <\/p>\n
their position looking to the way the wind is blowing.\n<\/p>\n<\/p>\n
        Expectations from the Political Executive<\/p>\n
149.            Same are the expectations from the political executive viz. that it <\/p>\n
must   be   above   board,   and   must   act   in   accordance   with   the   law   and   not   in  <\/p>\n
furtherance of the interest of a relative.  However, as the time has passed, these  <\/p>\n
expectations are belied. That is why in the case of Shri Shivajirao Nilangekar <\/p>\n
(supra) this Court had to lament in paragraph 51 of the judgment as follows:-<\/p>\n
                “51. This Court cannot be oblivious that there has been a
\n        steady   decline   of   public   standards   or   public   morals   and   public
\n        morale. It is necessary to cleanse public life in this country along
\n        with   or   even   before   cleaning   the   physical   atmosphere.   The  <\/p>\n
                                              13<\/span><\/p>\n
        pollution in our values and standards in (sic is) an equally grave
\n        menace   as   the   pollution   of   the   environment.   Where   such
\n        situations cry out, the courts should not and cannot remain mute
\n        and dumb.”\n<\/p><\/blockquote>\n
150.           People   of   a   state   look   up   to   the   Chief   Minister   and   those   who <\/p>\n
occupy the high positions in the Government and the Administration for redressal <\/p>\n
of their grievances.  Citizens are facing so many problems and it is expected of <\/p>\n
those in such positions to resolve them.  Children are particularly facing serious <\/p>\n
problems concerning facilities for their education and sports, quality of teaching,  <\/p>\n
their health and nutrition.  It is the duty of those in high positions to ensure that  <\/p>\n
their conduct should not let down the people of the country, and particularly the <\/p>\n
younger   generation.   The   ministers,   corporators   and   the   administrators   must <\/p>\n
zealously guard the spaces reserved for public amenities from the preying hands <\/p>\n
of   the   builders.     What   will   happen,   if   the   protectors   themselves   become <\/p>\n
poachers?  Their decisions and conduct must be above board.  Institutional trust <\/p>\n
is of utmost importance.  In the case of Bangalore Medical Trust (supra) this <\/p>\n
court observed in paragraph 45 of its judgment that “the directions of the Chief <\/p>\n
Minister, the apex public functionary of the State, was in breach of public trust,  <\/p>\n
more   like   a   person   dealing   with   his   private   property   than   discharging   his <\/p>\n
obligation as head of the State administration in accordance with law and rules”. <\/p>\n
Same is the case in the present matter where Shri Manohar Joshi, the then Chief  <\/p>\n
Minister  and Shri Ravindra  Mane, the Minister of State have failed in this test, <\/p>\n
and in discharge of their duties.  Nay, they have let down the people of the city  <\/p>\n
and the state, and the children.\n<\/p>\n<\/p>\n
        Importance of the spaces for public amenities<\/p>\n
                                                  13<\/span><\/p>\n
151.             As we have seen, the MRTP Act gives a place of prominence to the <\/p>\n
spaces meant for public amenities.  An appropriately planned city requires good <\/p>\n
roads,   parks,   playgrounds,   markets,   primary   and   secondary   schools,   clinics, <\/p>\n
dispensaries and hospitals and sewerage facilities amongst other public amenities <\/p>\n
which are essential for a good civic life.  If all the spaces in the cities are covered  <\/p>\n
only by the construction  for residential houses, the cities will become concrete <\/p>\n
jungles which is what they have started becoming.  That is how there is need to <\/p>\n
protect the spaces meant for public amenities which cannot be sacrificed for the <\/p>\n
greed of a few landowners and builders to make more money on the ground of <\/p>\n
creating  large  number of houses.   The MRTP  Act does give  importance  to the  <\/p>\n
spaces   reserved   for   public   amenities,   and   makes   the   deletion   thereof   difficult <\/p>\n
after the planning process is gone through, and the plan is finalized.  Similar are <\/p>\n
the   provisions   in   different   State   Acts.     Yet,   as   we   have   seen   from   the   earlier  <\/p>\n
judgments   concerning  the   public  amenities  in   Bangalore  (Bangalore   Medical <\/p>\n
Trust  (supra)  and   Lucknow   (M.I   Builders   Pvt.   Ltd.  (supra),  and   now   as   is <\/p>\n
seen   in   this   case   in   Pune,   the   spaces   for   the   public   amenities   are   under   a <\/p>\n
systematic   attack   and   are   shrinking   all   over   the   cities   in   India,   only   for   the  <\/p>\n
benefit of the landowners and the builders. Time has therefore come to take a  <\/p>\n
serious   stock   of   the   situation.   Undoubtedly,   the   competing   interest   of   the <\/p>\n
landowner is also to be taken into account, but that is already done when the  <\/p>\n
plan is finalized, and the landowner is compensated as per the law.   Ultimately <\/p>\n
when the land is reserved for a public purpose after following the due process of <\/p>\n
law, the interest of the individual must yield to the public interest.  <\/p>\n
                                                  13<\/span><\/p>\n
152.             As   far   as   the   MRTP   Act   is   concerned,   as   we   have   noted   earlier,  <\/p>\n
there is a complete mechanism for the protection of the spaces meant for public  <\/p>\n
amenities. We have seen the definition of substantial modification, and when the <\/p>\n
reservation   for   a   public   amenity   on   a   plot   of   land   is   sought   to   be   deleted  <\/p>\n
completely, it would surely be a case of substantial modification, and not a minor <\/p>\n
modification.     In   that   case   what   is   required   is   to   follow   the   procedure   under <\/p>\n
Section   29   of   the   Act,   to   publish   a   notice   in   local   newspapers   also,   inviting  <\/p>\n
objections and suggestions within sixty days.  The Government and the Municipal  <\/p>\n
Corporations are trustees of the citizens for the purposes of retention of the plots  <\/p>\n
meant   for   public   amenities.     As   the   Act   has   indicated,   the   citizens   are   vitally  <\/p>\n
concerned with the retention of the public amenities, and, therefore deletion or <\/p>\n
modification should be resorted to only in the rarest of rare case, and after fully <\/p>\n
examining   as   to   why   the   concerned   plot   was   originally   reserved   for   a   public <\/p>\n
amenity, and as to how its deletion is necessary.  Otherwise it will mean that we <\/p>\n
are  paying  no  respect  to the  efforts  put  in  by  the original  planners  who  have <\/p>\n
drafted the plan, as per the requirements of the city, and which plan has been  <\/p>\n
finalized after following the detailed procedures as laid down by the law. <\/p>\n
        Suggested safeguards for the future<\/p>\n
153.             Having noted as to what has happened  in the present matter,  in <\/p>\n
our view it is necessary that we should lay down the necessary safeguards for <\/p>\n
the future so that such kind of gross deletions do not occur in the future, and the  <\/p>\n
provisions of the Act are strictly implemented in tune with the spirit behind.  <\/p>\n
                                                  13<\/span><\/p>\n
(i)      Therefore,   when   the   gazette   notification   is   published,   and   the   public <\/p>\n
notice in the local newspapers is published under Section 29 (or under Section  <\/p>\n
37) it must briefly set out the reasons as to why the particular  modification  is  <\/p>\n
being proposed.   Since Section 29 provides for publishing a notice in the `local <\/p>\n
newspapers’,  we  adopt  the methodology  of  Section  6 (2) of  the L.A. Act,  and <\/p>\n
expect   that   the   notice   shall   be   published   atleast   in   two   daily   newspapers  <\/p>\n
circulating   in   the   locality,   out   of   which   atleast   one   shall   be   in   the   regional  <\/p>\n
language.   We expect the notice to be published in the newspapers with wide <\/p>\n
circulation and at prominent place therein.\n<\/p>\n<\/p>\n
(ii)     Section 29 lays down that after receiving the suggestions and objections,  <\/p>\n
the procedure as prescribed in Section 28 is to be followed.   Sub-section (3) of <\/p>\n
Section 28 provides for holding an inquiry thereafter wherein the opportunity of <\/p>\n
being   heard   is   to   be   afforded   by   the   Planning   Committee   (of   the   Planning <\/p>\n
Authority)   to   such   persons   who   have   filed   their   objections   and   made  <\/p>\n
suggestions.   The Planning Committee, therefore, shall hold a public inquiry for <\/p>\n
all such persons to get an opportunity of making their submission, and then only  <\/p>\n
the Planning Committee should make its report to the Planning Authority.<\/p>\n
(iii)    One   of   the   reasons   which   is   often   given   for   modification\/deletion   of <\/p>\n
reservation is paucity of funds, which was also sought to be raised in the present <\/p>\n
matter by the Municipal Commissioner for unjustified reasons, in as much as the <\/p>\n
compensation   amount   had   already   been   paid.     However,   if   there   is   any   such <\/p>\n
difficulty, the planning authority must call upon the citizens to contribute for the <\/p>\n
project, in the public notice contemplated under Section 29, in as much as these <\/p>\n
                                                  14<\/span><\/p>\n
public  amenities  are meant for them, and there will be many philanthropist  or <\/p>\n
corporate bodies or individuals who may come forward and support the public <\/p>\n
project financially.   That was also the approach indicated by this Court in  Raju <\/p>\n
S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222]. <\/p>\n
        Primary Education<\/p>\n
154.             Primary   education   is   one   of   the   important   responsibilities   to   be <\/p>\n
discharged   by   Municipalities   under   the   Bombay   Primary   Education   Act   1947. <\/p>\n
Again, to state the reality, even after sixty years after the promulgation of the <\/p>\n
Constitution,   we   have   not   been   able   to   attain   full  literacy.   Of   all   the   different <\/p>\n
areas   of   education,   primary   education   is   suffering   the   most.     When   the <\/p>\n
Constitution was promulgated, a Directive Principle was laid down in Article 45 <\/p>\n
which states that the State shall endeavour to provide, within the period of ten <\/p>\n
years   from   the   commencement   of   the   Constitution,   for   free   and   compulsory <\/p>\n
education for all children until they complete the age of fourteen years. This has  <\/p>\n
not been achieved yet.  The 86th Amendment to the Constitution effected in the <\/p>\n
year 2002 deleted this Article  45, and substituted  it with new Article  45 which <\/p>\n
lays   down   that   the   State   shall   endeavour   to   provide   early   childhood   care   and <\/p>\n
education   for   all   children   until   they   complete   the   age   of   six   years.   The <\/p>\n
amendment has made Right to Education a Fundamental Right under Article 21A. <\/p>\n
This Article lays down that the State shall provide free and compulsory education  <\/p>\n
to all children of the age of six to fourteen years in such manner as the State <\/p>\n
may, by law, determine.   In the year 2009 we passed the Right of Children to <\/p>\n
                                              14<\/span><\/p>\n
Free and Compulsory Education Act 2009.  All these laws have however not been  <\/p>\n
implemented   with   the   spirit   with   which   they   ought   to   have   been.     We   have <\/p>\n
several   national   initiatives   in   operation   such   as   the   Sarva   Shiksha   Abhiyan, <\/p>\n
District Primary Education Programme, and the Universal Elementary Education <\/p>\n
Programme to name a few.  However, the statistical data shows that we are still <\/p>\n
far away from achieving the goal of full literacy.\n<\/p>\n<\/p>\n
155.            Nobel laureate Shri Amartya Sen commented on our tardy progress <\/p>\n
in the field of basic education in his Article `The Urgency of Basic Education’ in <\/p>\n
the seminar  “Right to Education-Actions Now” held at New Delhi on 19.12.2007 <\/p>\n
as follows:-\n<\/p>\n<\/p>\n
                “India   has   been   especially   disadvantaged   in   basic
\n        education, and this is one of our major challenges today.  When
\n        the British left their Indian empire, only 12 per cent of the India
\n        population   was   literate.     That   was   terrible   enough,   but   our
\n        progress   since   independence   has   also   been   quite   slow.     This
\n        contrasts   with   our   rapid   political   development   into   the   first
\n        developing   country   in   the   world   to   have   a   functioning
\n        democracy.”\n<\/p><\/blockquote>\n
The story for Pune city is not quite different.   Since the impugned development <\/p>\n
permission given by the Municipal Corporation was on the basis of no objection <\/p>\n
of the Chief Minister dated 21.8.1996, we may refer to the Educational Statistics <\/p>\n
of Pune city, at that time.   As per the Census of India 1991, the population of <\/p>\n
Pune city was 24,85,014, out of which 17,14,273 were the literate persons which <\/p>\n
comes to just above 2\/3 of the population.  The percentage of literacy has gone <\/p>\n
up thereafter, but still we are far away from achieving full literacy and from the <\/p>\n
goal of providing quality education and facilities at the primary level.  <\/p>\n
                                                14<\/span><\/p>\n
156.             There   is   a   serious   problem   of   children   dropping   out   from   the <\/p>\n
primary schools.   There are wide ranging factors which affect the education of <\/p>\n
the   children   at   a   tender   age,   such   as   absence   of   trained   teachers   having   the <\/p>\n
proper   understanding   of   child   psychology,   ill-health,   and   mal-nutrition.     The <\/p>\n
infrastructural facilities are often very inadequate.  Large number of children are <\/p>\n
cramped into small classrooms and there is absence of any playground attached  <\/p>\n
with the school. This requires adequate spaces for the primary schools.  Even in <\/p>\n
the so called higher middle class areas in large cities like Pune, there are hardly <\/p>\n
any open spaces within the housing societies and, therefore, adequate space for <\/p>\n
the playgrounds of the primary schools is of utmost importance.   Having noted <\/p>\n
this scenario and the necessity of spaces for primary schools in urban areas, it is  <\/p>\n
rather unfortunate that the then Chief Minister who claims to be an educationist  <\/p>\n
took interest in releasing a plot duly reserved and acquired for a primary school  <\/p>\n
only for the benefit of his son-in-law.  It also gives a dismal picture of his deputy,  <\/p>\n
the Minister of State acting to please his superior, and so also of the Municipal <\/p>\n
Commissioner ignoring his statutory responsibilities. <\/p>\n
        Operative order with respect to the disputed buildings <\/p>\n
157.             We have held the direction given by the State Government for the <\/p>\n
deletion   of   reservation   on   Final   Plot   No.110,   and   the   commencement   and <\/p>\n
occupation certificates issued by the Pune Municipal Corporation in favour of the  <\/p>\n
developer   were   in   complete   subversion   of   the   statutory   requirements   of   the <\/p>\n
MRTP Act.   The development permission was wholly illegal and unjustified.   As <\/p>\n
far as the building meant for the tenants is concerned, the developer as well as <\/p>\n
                                                 14<\/span><\/p>\n
PMC have indicated that they have no objection to the building being retained. <\/p>\n
As far as the ten storied building  meant for  the private  sale  is concerned,  the <\/p>\n
developer had  offered to hand over half the number of floors to PMC, provided <\/p>\n
it   permits   the   remaining   floors   to   be   retained   by   the   developer.     PMC   has <\/p>\n
rejected that offer since the plot was reserved for a primary school.  The building  <\/p>\n
must   therefore   be   either   demolished   or   put   to   a   permissible   use.     The   illegal <\/p>\n
development carried out by the developer has resulted into a legitimate primary <\/p>\n
school not coming up on the disputed plot of land.  Thousands of children would <\/p>\n
have attended the school on this plot during last 15 years.  The loss suffered by <\/p>\n
the children and the cause of education is difficult to assess in terms of money,  <\/p>\n
and in a way could be considered to be far more than the cost of construction of  <\/p>\n
this building.  Removal of this building is however not going to be very easy.  It  <\/p>\n
will  cause  serious  nuisance  to the  occupants of  the adjoining  buildings  due to  <\/p>\n
noise and air pollution.  The citizens may as well initiate actions against the PMC <\/p>\n
for appropriate reliefs.  It is also possible that the developer may not be able to  <\/p>\n
remove the disputed building within a specified time, in which case the PMC will <\/p>\n
have   to   incur   the   expenditure   on   removal.     It   will,   therefore,   be   open   to   the <\/p>\n
developer   to   redeem   himself   by   offering   the   entire   building   to   PMC   for   being  <\/p>\n
used as a primary school or for the earmarked purpose, free of cost.  If he is so  <\/p>\n
inclined, he may inform PMC that he is giving up his claim on this building also in  <\/p>\n
favour of PMC.\n<\/p>\n<\/p>\n
158.             The High Court has not specified the time for taking the necessary <\/p>\n
steps in this behalf.   Hence, for the sake of clarity, we direct the developer to <\/p>\n
                                                 14<\/span><\/p>\n
inform the PMC within two weeks from today whether he is giving up the claim <\/p>\n
on the ten storied building named `Sundew Apartments’ apart from the tenants’  <\/p>\n
building in favour of PMC, failing which PMC will issue a notice to the developer  <\/p>\n
within two weeks thereafter, calling upon him to furnish particulars to PMC within <\/p>\n
two weeks from the receipt of the notice, as to in what manner and time frame <\/p>\n
he proposes to demolish this ten storied building.     In the event the developer  <\/p>\n
declines or fails to do so, or does not respond within the specified period, or if <\/p>\n
PMC forms an impression after receiving his reply that the developer is incapable  <\/p>\n
of removing the building  in reasonably short time,  the PMC  will go ahead and  <\/p>\n
demolish the same.  In either case the decision of the City Engineer of PMC with  <\/p>\n
respect to the manner of removal of the building and disposal of the debris shall <\/p>\n
be final.\n<\/p>\n<\/p>\n
159.             As   far   as   the   ownership   of   the   plot   is   concerned,   the   same   will <\/p>\n
abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 <\/p>\n
which will be decided in accordance with law.   The old tenants will continue to <\/p>\n
occupy the building meant for the tenants.\n<\/p>\n<\/p>\n
 160.            The PMC and the State Government have fairly changed\/reviewed <\/p>\n
their   legal   position   in   this   Court,   and   defended   their   original   stand   about   the <\/p>\n
illegality   of  the  construction.  We  therefore,  absolve   both  of   them  from  paying  <\/p>\n
costs to the original petitioners. The order with respect to payment of cost of Rs. <\/p>\n
10,000\/- against the then Chief Minister and the Minister of State to each of the  <\/p>\n
original petitioners however remains.   Over and above we add Rs. 15,000\/- for <\/p>\n
each of them to pay to the two petitioners separately towards the cost of these <\/p>\n
                                                14<\/span><\/p>\n
appeals  in this Court.   Thus, the then Chief Minister  and the Minister  of State <\/p>\n
shall each pay Rs. 25,000\/- to the two petitioners separately.<\/p>\n
161.            The  spaces   for   public   amenities   such   as   roads,   playgrounds, <\/p>\n
markets,   water   supply   and   sewerage   facilities,   hospitals   and   particularly <\/p>\n
educational   institutions   are   essential   for   a   decent   urban   life.     The   planning  <\/p>\n
process   therefore   assumes   significance   in   this   behalf.     The   parcels   of   land <\/p>\n
reserved for public amenities under the urban plans cannot be permitted to be <\/p>\n
tinkered   with.     The   greed   for   making   more   money   is   leading   to   all   sorts   of <\/p>\n
construction for housing in prime city areas usurping the lands meant for public  <\/p>\n
amenities wherever possible and in utter disregard for the quality of life.  Large  <\/p>\n
number   of   areas   in   big   cities   have   already   become   concrete   jungles   bereft   of  <\/p>\n
adequate public amenities.  It is therefore, that we have laid down the guidelines <\/p>\n
in   this  behalf   which  flow  from   the  scheme  of  the  MRTP   Act  itself   so  that  this <\/p>\n
menace  of   grabbing  public   spaces  for  private   ends  stops   completely.     We   are <\/p>\n
also clear that any unauthorised construction particularly on the lands meant for <\/p>\n
public   amenities   must   be   removed   forthwith.     We   expect   the   guidelines   laid <\/p>\n
down in this behalf to be followed scrupulously.\n<\/p>\n<\/p>\n
        The conclusions in nutshell and the consequent order<\/p>\n
162.            In the circumstances we conclude and pass the following order –<\/p>\n
(i)       We hold that the direction given by the Government of Maharashtra for <\/p>\n
the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the <\/p>\n
consequent   Commencement   and   Occupation   certificates   issued   by   the   Pune <\/p>\n
Municipal   Corporation   (PMC)   in   favour   of   the   developer   were   in   complete <\/p>\n
                                                14<\/span><\/p>\n
subversion   of   the   statutory   requirements   of   the   MRTP   Act.   The   development <\/p>\n
permission was wholly illegal and unjustified.\n<\/p>\n<\/p>\n
(ii)     The   direction   of   the   High   Court   in   the   impugned   judgment   dated <\/p>\n
6\/15.3.1999   in   Writ   Petition   Nos.   4433   and   4434\/1998   for   demolition   of   the <\/p>\n
concerned building was fully legal and justified.\n<\/p>\n<\/p>\n
(iii)    The   contention   of   the   landowner   that   his   right   of   development   for <\/p>\n
residential purposes on  the concerned  plot  under  the erstwhile  Town  Planning <\/p>\n
scheme subsisted in  spite of  coming  into force  of  Development  Plan  reserving <\/p>\n
the plot for a primary school, is liable to be rejected.\n<\/p>\n<\/p>\n
(iv)     The   acquisition   of   the   concerned   plot   of   land   was   complete   with   the <\/p>\n
declaration   under   Section   126   of   the   MRTP   Act   read   with   Section   6   of   Land  <\/p>\n
Acquisition Act and the same is valid and legal.\n<\/p>\n<\/p>\n
(v)      The order passed by the High Court directing the Municipal Corporation to <\/p>\n
move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore  <\/p>\n
necessary. The High Court is expected to decide the revived First Appeal at the  <\/p>\n
earliest and preferably within four months hereafter in the light of the law and <\/p>\n
the directions given in this judgment.\n<\/p>\n<\/p>\n
(vi)     The developer shall inform the PMC whether he is giving up the claim over <\/p>\n
the construction of the ten storied building (named `Sundew Apartments’) apart  <\/p>\n
from the tenants’ building in favour of PMC, failing which either the developer or  <\/p>\n
the   PMC   shall   take   steps   for   demolition   of   the   disputed   building   (Sundew <\/p>\n
Apartments) as per the time frame laid down in this judgment.<\/p>\n
                                               14<\/span><\/p>\n
(vii)     The former occupants of F.P No. 110 will continue to reside in the building <\/p>\n
constructed for the tenants on the terms stated in the judgment.<\/p>\n
(viii)    The corporation will not be required to pay any amount to the developer <\/p>\n
for the tenants’ building constructed by him, nor for the ten storied building in <\/p>\n
the event he gives up his claim over it in favour of PMC.\n<\/p>\n<\/p>\n
(ix)      The strictures passed by the High Court against the then Chief Minister of  <\/p>\n
Maharashtra   Shri   Manohar   Joshi   and   the   then   Minister   of   State   Shri   Ravindra  <\/p>\n
Mane   are  maintained.     The  prayer   to  expunge  these  remarks  is  rejected.   The <\/p>\n
remarks against the Municipal Commissioner are however deleted.<\/p>\n
(x)       The order directing criminal investigation and thereafter further action as <\/p>\n
warranted in law, is however deleted in view of the judgment of this Court in the <\/p>\n
case of Common Cause A Registered Society Vs. Union of India reported <\/p>\n
in 1999 (6) SCC 667<\/p>\n
(xi)      The then Chief Minister and the then Minister of State shall each pay cost <\/p>\n
of Rs. 15,000\/- to each of the two petitioners in the High Court towards these  <\/p>\n
ten appeals, over and above the cost of Rs. 10,000\/- awarded by the High Court  <\/p>\n
in the writ petitions payable by each of them to the two writ petitioners.    <\/p>\n
 (xii)    The State Government and the Planning authorities under the MRTP Act <\/p>\n
shall hereafter scrupulously follow the directions and the suggested safeguards <\/p>\n
with respect to the spaces meant for public amenities.\n<\/p>\n<\/p>\n
          All the appeals stand disposed of as above.\n<\/p>\n<\/p>\n
                                                                 ………………………….J.\n<\/p>\n
                                                                 (  R.V. Raveendran )<\/p>\n
                             14<\/span><\/p>\n
                                   …………………………..J.\n<\/p>\n
                                   ( H.L. Gokhale  )<\/p>\n
New Delhi<\/p>\n
Dated:  October 12, 2011.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Girish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011 Bench: R.V. Raveendran, H.L. Gokhale REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 198-199 OF 2000 Shri Girish Vyas & Anr. …Appellants Versus The State of Maharastra & Ors. …Respondents WITH CIVIL […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-102056","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGirish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/girish-vyas-and-anr-vs-state-of-maharashtra-and-ors-on-12-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Girish Vyas And Anr vs State Of Maharashtra And Ors on 12 October, 2011 - 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