Pune
Municipal Corporation & Anr Vs. Promoters & Builders Association & Anr
[2004] Insc 363 (5 May
2004)
Cji
& G.P. Mathur.
(with
Civil Appeals Nos. 3801/2003, 3802/2003, 3803/2003, 3804/2003) RAJENDRA BABU,
CJI. :
Whether
the impugned amendment to the Development Control Rules (DCR) sanctioned by the
State Government of Maharashtra is in accordance with the provisions of the Maharashtra
Regional and Town Planning Act, 1966 (the Act) is the matter for consideration
herein.
The
Act inter alia constituted Regional Development Authorities to streamline the
development planning of Greater Bombay and Pune. Respective Corporations of
Bombay and Pune were nominated as Regional Development Authorities under the
Act. On 8-7-1993 the Maharashtra Government issued a
directive under section 37 of the Act to Pune Municipal Corporation (PMC) to
amend its DCR in the line of Bombay DCR. On 30-9-1993 PMC published the proposed amendments in the Official
Gazette and invited objections / suggestions in accordance with section 37(1)
of the Act. Subsequently the State Government sanctioned the proposed
amendments. On 22-8-1995 the PMC submitted a proposal for
modification of the DCR without any modification in the draft regulations.
Thereafter, the State Government vide Notification dated 5-6-1997 under section 37(2) of the Act sanctioned the
proposal of the modification and notified the modified DCR. It is pointed out
that the proposal submitted by the PMC did not contain the words "very
said plot" in the proposed amendment to Rule N 2.4.11. However when the
sanction was granted the State Government made certain additions to the Rules
and the Rule N 2.4.11 contains the word "very said plot". The Floor
Space Index (FSI) granted additionally under these rules was properly sanctioned
by the PMC. Subsequently, the request to grant additional FSI was rejected by
the PMC.
This
resulted in the present litigation. The Respondents herein challenges this
amendment before the High Court on the ground that the additions made by the
State Government while giving the final sanction is beyond the powers of the
State Government under section 37(2) of the Act. The High Court allowed the
petition on the reasoning that the language of section 37(2) nowhere allows the
State Government to add conditions of its own or amendments of its own in the
modifications submitted by the Planning Authority. It is also found that the
State Government is bound to hear the affected parties or those who suggested
modification to the proposals, before giving sanction. High Court also pointed
out that on applying the principles of promissory estoppel the corporation
couldn't be allowed to insist that the additional 0.4 FSI be used on the same
very plot. This decision is impugned before us.
The
question now for consideration is whether the State Government can make any
changes of its own in the modifications submitted by Planning Authority or not.
The impugned section 37 of the Act reads as follows:
"37(1)
Where a modification of any part of or any proposal made in, a final
Development plan is of such a nature that it will not change the character of
such Development plan, the Planning Authority may, or when so directed by the
State Government shall, within sixty days from the date of such direction,
publish a notice in the Official Gazette and in such other manner as may be
determined by it inviting objections and suggestions from any person with
respect to the proposed modification not later than one month from the date of
such notice; and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons, submit
the proposed modification with amendments, if any, to the State Government for
sanction.
(1A) (1AA)
(1B) (2) The State Government may, make such inquiry as it may consider
necessary and after consulting the Director of Town Planning by notification in
the Official Gazette, sanction the modification with or without such changes,
and subject to such conditions as it may deem fit, or refuse to accord sanction.
If a modification is sanctioned, the final Development plans shall be deemed to
have been modified accordingly." (emphasis supplied) Reading of this provision reveals that
under clause (1), the Planning Authority after inviting objections and suggestions
regarding the proposed amendment and after giving notice to all affected
persons shall submit the proposed modification for sanction to the Government.
The deliberation with the public before making the amendment is over at this
stage. The Government, thereafter, under clause (2) is given absolute liberty
to make or not to make necessary inquiry before granting sanction. Again, while
according sanction, Government may do so with or without modifications.
Government could impose such conditions as it deem fit. It is also permissible
for the Government to refuse the sanction. This is the true meaning of the
clause (2). It is difficult to uphold the contrary interpretation given by the
High Court. The main limitation for the Government is made under clause (1)
that no authority can propose an amendment so as to change the basic character
of the development plan. The proposed amendment could only be minor within the
limits of the development plan. And for such minor changes it is only normal
for the government to exercise a wide discretion, by keeping various relevant
factors in mind. Again, if it is arbitrary or unreasonable the same could be
challenged. It is not the case of the Respondents herein that the proposed
change is arbitrary or unreasonable. They challenged the same citing the reason
that the Government is not empowered under the Act to make such changes to the
modification.
Making
of DCR or amendment thereof are legislative functions. Therefore, section 37
has to be viewed as repository of legislative powers for effecting amendments
to DCR. That legislative power of amending DCR is delegated to State
Government. As we have already pointed out, the true interpretation of section
37(2) permits the State government to make necessary modifications or put
conditions while granting sanction. In section 37(2), the legislature has not
intended to provide for a public hearing before according sanction. The
procedure for making such amendment is provided in section 37. Delegated
legislation cannot be questioned for violating principles of natural justice in
its making except when the statute itself provides for that requirement. Where
the legislature has not chosen to provide for any notice or hearing, no one can
insist upon it and it is not permissible to read natural justice into such
legislative activity. Moreover, a provision for 'such inquiry as it may
consider necessary' by a subordinate legislating body is generally an enabling
provision to facilitate the subordinate legislating body to obtain relevant
information from any source and it is not intended to vest any right in
anybody. (Union of India and Anr. v. Cynamide India Ltd and Anr. (1987) 2 SCC 720
paragraphs 5 and 27. See generally HSSK Niyami and Anr. v. Union of India and Anr.
(1990) 4 SCC 516 and Canara Bank v. Debasis Das (2003) 4 SCC 557). While
exercising legislative functions, unless unreasonableness or arbitrariness is
pointed out, it is not open for the Court to interfere. (See generally ONGC v.
Assn. of Natural Gas Consuming Industries of Gujarat 1990 (Supp) SCC 397)
Therefore, the view adopted by the High Court does not appear to be correct.
The
DCR are framed under section 158 of the Act.
Rules
framed under the provisions of a statute form part of the statute. (See General
Office Commanding-in-Chief and Anr. v. Dr. Subhash Chandra Yadav and Anr. (1988)
2 SCC 351, paragraph 14). In other words, DCR have statutory force. It is also
a settled position of law that there could be no 'promissory estoppel' against
a statue. (A.P Pollution Control Board II v. M V Nayudu (2001) 2 SCC 62,
paragraph 69, Sales Tax Officer and Another v. Shree Durga Oil Mills (1998) 1
SCC 572, paragraphs 21 and 22 and Sharma Transport v. Govt. of AP (2002) 2 SCC
188, paragraphs 13 to 24). Therefore, the High Court again went wrong by
invoking the principle of 'promissory estoppel' to allow the petition filed by
the Respondents herein.
For
the foregoing reasons, the view adopted by the High Court cannot be sustained.
These
appeals are allowed by setting aside the order of the High Court and the writ
petitions filed before the High Court are dismissed.
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