Promoters & Builders Association of Pune Vs. Pune Municipal Corporation & Ors
[2007] Insc 553 (11 May 2007)
G.P. Mathur & R.V. Raveendran
REVIEW PETITION (CIVIL) NO.1809 OF 2005 IN CIVIL APPEAL NO.3800 OF 2003 WITH
REVIEW PETITION (CIVIL) NOS.1856-1857 OF 2005 IN CIVIL APPEAL NO.3804 OF 2003
G.P. Mathur, J.
These are review petitions seeking review of the judgment and order dated
5.5.2004 passed by this Court in Civil Appeal No.3800 of 2003. We will give the
facts of Review Petition No.1809 of 2005, which is the leading case.
2. The Maharashra legislature enacted Maharashtra Regional Town Planning
Act, 1966 (for short 'the Act') for planning and development of the cities,
constitution of Regional Planning Boards and to make provision for the
preparation of development plans with a view to ensuring that Town Planning
Schemes are made in a proper manner and their execution is made effective and
for ancillary purposes. Chapter III of the Act deals with development plans.
Under the Scheme of the Act, Development Control Rules are framed separately
for each city keeping in view the peculiar requirements of each city/town. The
dispute here pertains to Development Control Rules (for short 'DCR') for Pune
which has been constituted as a corporation under the Bombay Provincial and
Municipal Corporation Act, 1949 (for short 'BPMC Act'). Pune Municipal
Corporation is also the planning authority under the provisions of the Act for
the city of Pune. A concept of Transfer of Development Rights (for short 'TDR')
was introduced in the Regulations of Greater Bombay and the object of
introducing such concept was to facilitate acquisition of land for public
purposes. The concept of TDR operates in the following manner :- "The
owner or the lessee of the plot of land will hand over the possession of the
reserved land to the planning authority and as against such handing over, such
owner or the lessee will be granted "development right certificate"
so as to enable such owner to construct built up area equivalent to permissible
FSI of the land acquired in one or more other plots and in the zones specified.
Such one or more plots are termed as "receiving plots".
3. The State of Maharashtra issued a directive under Section 37(1) of the
Act to the Pune Municipal Corporation on 8.7.1993 to amend Development Control
Rules of Pune city. The Pune Municipal Corporation then issued a notification
in the Gazette on 30.9.1993 by which the process of modification was initiated
and it was notified that the modification would be on the same lines as
applicable in Greater Bombay. One of the proposed modifications was in Rule
N.2.4.11 which was as under :
"FSI of receiving plot shall be allowed to be exceeded by not more than
0.4 in respect of D.R. available in respect of the reserved plot and upto a
future 0.4 in respect of D.R. available in respect of the lands surrendered for
road widening or construction of new roads as prescribed."
After prescribed procedure had been completed, the Corporation forwarded the
proposed modification to the State Government. The State Government then issued
a notification under Section 37(2) of the Act on 5.6.1997 sanctioning the
proposal and notified the modified Development Control Rules of Pune Municipal
Corporation. Rule N.2.4.11 which was sanctioned and notified by the State
Government reads as under :
"(a) The FSI on receiving plots shall be allowed to be exceeded not
more than 0.4 in respect of DR available for the reserved plots.
(b) The FSI on receiving plots shall be allowed to be exceeded by further
0.4 in respect of DR available on account of the land surrendered for the road
widening or construction of new road from very said plot."
4. The State Government while sanctioning Rule N.2.4.11 introduced a
departure from the Bombay Development Control Rules.
Some other changes were also made by the State Government in the Rules which
had been proposed by the Pune Municipal Corporation.
Thereafter, some exchange of correspondence and meetings took place between
the Pune Municipal Corporation and the State Government as regards the
interpretation of the above Rule. The Chief Secretary of the Urban Development
Department, Government of Maharashtra then sent a detailed letter to the Pune
Municipal Corporation on 11.6.1998 regarding the correct interpretation of the
notified Development Control Rules. Regarding Rule N.2.4.11 it was stated as
under in the said letter :
"8. Use of 0.4 Transferable Development Rights and
0.4 Development Plan Road together making 0.8 Floor Space Index on the same
property.
The policy adopted by the Mumbai Municipal Corporation should be followed by
the Pune Municipal Corporation."
5. In view of the clarification issued by the State Government, the Pune
Municipal Corporation issued a circular on 20.7.1999 and with regard to Rule N.2.4.11
it was stated as under :
"As per the rule No.2.4.11 (a & b) of the Development Control Rules
the TDR of 0.4 of the total floor space area of the receiving plot out of TDR
of road widening or other roads widening and 0.4 of the total floor space area
of the receiving plot out of TDR of areas reserved for other purposes is
allowed. Thus a maximum of 0.8 of the total floor space area of the receiving
plot shall be permitted."
More than two years thereafter, the Pune Municipal Corporation passed a Resolution
on 29.10.2001 not to allow use of additional 0.4 FSI in the area other then the
plot from which the land for road widening has been acquired which was in tune
with clause (b) of D.C.R.-2.4.11. This decision of the Corporation was endorsed
by the General Body on 21.11.2001. It may be pointed out here that while
sanctioning the proposal of the Pune Municipal Corporation, the State
Government added the words "from the very said plot" towards the end
of clause (b) of Development Control Rule N.2.4.11 in the notification which
was issued by it on 5.6.1997. It is the addition of these words by the State
Government which gave rise to the litigation which was ultimately decided by
this Court in Civil Appeal No.3820 of 2003 and the introduction of said words is
also under challenge in the present review petitions.
6. Promoters and Builders Association of Pune, a Society registered under
the provisions of Societies Registration Act, filed Writ Petition No.5198 of
2001 against Pune Municipal Corporation and State of Maharashtra challenging
the modified Development Control Rules, especially Rule N-2.3(A) and N.2.4.11
(a) and (b), wherein the principal relief claimed was that a writ of mandamus
be issued commanding the respondents to the writ petition to implement Development
Control Rule N-2.4.11(b) in a manner that the road area in respect of the plot,
which is reserved for the road can be utilized being 0.4 FSI on the same plot
and the balance unutilized FSI, if any, can be converted into TDR and can be
used anywhere on a receiving plot to the extent of 0.4 FSI, in addition to the
0.4 FSI permissible on the receiving plot for amenities under Rule N-2.4.11(a)
and direct the Municipal Corporation to forthwith dispose of the applications
which had been submitted by the members of the petitioner Association in the
light of said clarification. The writ petition was contested by the Pune
Municipal Corporation and State of Maharashtra by filing counter affidavits.
The High Court after considering the provisions of Section 37 of the Act and
also of the Development Control Rules, allowed the writ petition on 23.4.2002.
It will be useful to reproduce the findings recorded by the High Court and the
relevant part of paras 18, 19 and 21 of the judgment of the High Court are reproduced
below:
"18. In our opinion, therefore, it was not possible for the State to
add the words "from the same plot" in clause 2.4.11 as the same have
been added without being publicized as required by the provisions of Section
37(1).
The planning authority did not want the words "same plot" to be
introduced. It did not therefore propose the modifications in that fashion. It
is the claim of the Planning Authority before us that the words were inserted
by the Government. There is no answer to this by the State Government and it
was obvious that it was done by the State Government. Since the addition has
been done by the State without following the procedure established by Section
37(1)(A) or Section 37(1), the words added cannot be read as validly added in
the Development Regulations and the addition will have to be struck down as
beyond the competence of the State Government. The State Government has not
directed under Section 37(1) to make modification in the Regulations as the
direction does not include the words "from the same plot". There was
no notice to the persons affected and therefore there was no objection raised
to it.
The insertion of those words by the State while granting sanction is
therefore tantamount to modifying the Final Development Plan in the exercise of
its powers under Section 37(1)(A). The State could have done so but then it was
duty bound to follow the procedure under Section 37(1)(A). Obviously there is
failure on the part of the State to do so and therefore inclusion of those words
in the Regulation is illegal. ........ .............................
19. ..................................... On the principles of promissory
estoppel also, therefore, the Corporation cannot be allowed to insist that the
additional 0.4 FSI be used on the same very plot. In our opinion, therefore,
even if the interpretation put by us on Section 37 is not accepted still on the
ground of promissory estoppel, the corporation will have to be restrained from
requiring the owners or builders from giving up additional 0.4 FSI on the
interpretation of the regulation of 2.4.11 to mean that it must be used on the
same very plot.
21. In the result, therefore, the petitions succeed and are allowed. The
words "from the same very plot" in clause 2.4.11 of the Development
Control Regulation as passed by the Planning Authority, Municipal Corporation,
Pune are hereby struck down. The respondents Planning Authority is directed to
permit the use of 0.8 FSI to the petitioners and other similarly situated
owners, builders etc. as transferred development rights wholly or on part as
proposed by them.
Consequently, the respondents are directed to sanction the building plan
submitted by the petitioners incorporating FSI of 0.8 as available in
accordance with D.C. Rules 2.4.11."
7. Feeling aggrieved by the decision of the High Court, the Pune Municipal
Corporation filed Civil Appeal No.3800 of 2003 in this Court. After hearing
learned counsel for the parties, this Court allowed the appeal by the judgment
and order dated 5.5.2004. The judgment of the High Court was set aside and the
writ petition filed before the High Court was dismissed. For the sake of
convenience, the relevant part of the judgment of this Court is reproduced
below :
"The question now for consideration is whether the State Government can
make any changes of its own in the modifications submitted by Planning
Authority or not. The impugned Section 37 of the Act reads as follows:
"37(1) Where a modification of any part of or any proposal made in, a
final Development plan is of such a nature that it will not change the
character of such Development plan, the Planning Authority may, or when so
directed by the State Government shall, within sixty days from the date of such
direction, publish a notice in the Official Gazette and in such other manner as
may be determined by it inviting objections and suggestions from any person
with respect to the proposed modification not later than one month from the
date of such notice; and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons, submit
the proposed modification with amendments, if any, to the State Government for
sanction.
(1A) .....
(1AA) .....
(1B) ......
(2) The State Government may, make such inquiry as it may consider necessary
and after consulting the Director of Town Planning by notification in the
Official Gazette, sanction the modification with or without such changes, and
subject to such conditions as it may deem fit, or refuse to accord sanction. If
a modification is sanctioned, the final Development plans shall be deemed to
have been modified accordingly."
(emphasis supplied) Reading of this provision reveals that under Clause (1),
the Planning Authority after inviting objections and suggestions regarding the
proposed amendment and after giving notice to all affected persons shall submit
the proposed modification for sanction to the Government. The deliberation with
the public before making the amendment is over at this stage. The Government,
thereafter, under Clause (2) is given absolute liberty to make or not to make
necessary inquiry before granting sanction. Again, while according sanction,
Government may do so with or without modifications. Government could impose
such conditions as it deem fit. It is also permissible for the Government to
refuse the sanction. This is the true meaning of the Clause (2). It is
difficult to uphold the contrary interpretation given by the High Court. The
main limitation for the Government is made under Clause (1) that no authority
can propose an amendment so as to change the basic character of the development
plan. The proposed amendment could only be minor within the limits of the
development plan. And for such minor changes it is only normal for the government
to exercise a wide discretion, by keeping various relevant factors in mind.
Again, if it is arbitrary or unreasonable the same could be challenged. It is
not the case of the Respondents herein that the proposed change is arbitrary or
unreasonable. They challenged the same citing the reason that the Government is
not empowered under the Act to make such changes to the modification.
Making of DCR or amendment thereof are legislative functions. Therefore,
Section 37 has to be viewed as repository of legislative powers for effecting
amendments to DCR. That legislative power of amending DCR is delegated to State
Government. As we have already pointed out, the true interpretation of Section
37(2) permits the State government to make necessary modifications or put
conditions while granting sanction.
In Section 37(2), the legislature has not intended to provide for a public
hearing before according sanction.
The procedure for making such amendment is provided in Section 37(1).
Delegated legislation cannot be questioned for violating principles of natural
justice in its making except when the statute itself provides for that
requirement. Where the legislature has not chosen to provide for any notice or
hearing, no one can insist upon it and it is not permissible to read natural
justice into such legislative activity. Moreover, a provision for 'such inquiry
as it may consider necessary' by a subordinate legislating body is generally an
enabling provision to facilitate the subordinate legislating body to obtain
relevant information from any source and it is not intended to vest any right
in anybody. (Union of India and Anr. v. Cynamide India Ltd and Anr. (1987) 2
SCC 720 paragraphs 5 and 27. See generally HSSK Niyami and Anr. v. Union of
India and Anr. (1990) 4 SCC 516 and Canara Bank v. Debasis Das (2003) 4 SCC
557).
While exercising legislative functions, unless unreasonableness or
arbitrariness is pointed out, it is not open for the Court to interfere. (See
generally ONGC v.
Assn. of Natural Gas Consuming Industries of Gujarat 1990 (Supp) SCC 397)
Therefore, the view adopted by the High Court does not appear to be correct.
The DCR are framed under Section 158 of the Act.
Rules framed under the provisions of a statute form part of the statute.
(See General Office Commanding-in-Chief and Anr. v. Dr. Subhash Chandra Yadav
and Anr. (1988) 2 SCC 351, paragraph 14). In other words, DCR have statutory
force. It is also a settled position of law that there could be no 'promissory
estoppel' against a statue.
(A.P Pollution Control Board II v. M V Nayudu (2001) 2 SCC 62, paragraph 69,
Sales Tax Officer and Another v.
Shree Durga Oil Mills (1998) 1 SCC 572, paragraphs 21 and 22 and Sharma
Transport v. Govt. of AP (2002) 2 SCC 188, paragraphs 13 to 24). Therefore, the
High Court again went wrong by invoking the principle of 'promissory estoppel'
to allow the petition filed by the Respondents herein.
For the foregoing reasons, the view adopted by the High Court cannot be
sustained."
8. We have heard Mr. U.U. Lalit and Mr. V.A. Bobde, Senior Advocates for the
review petitioners and Mr. Mukul Rohatgi, Senior Advocate for the respondents
at considerable length and have examined the record.
9. The main challenge of the review petitioners is to the addition of the
words "from the very said plot" towards the end of clause (b) in
DCR-2.4.11. Learned counsel for the petitioners have submitted that in the
proposal sent by the Pune Municipal Corporation after following the procedure
prescribed in Sub-section (1) of Section 37 the aforesaid words were not there.
However, the State Government while sanctioning the proposal added the said
words which in law it could not do. It has been submitted that the Municipal
Corporation had submitted the proposal after inviting objections and after
giving an opportunity of hearing and the proposal so made by the Municipal
Corporation could not have been modified or altered by the State Government
without inviting objections or giving an opportunity of hearing with regard to
changes which it proposed to make and which were ultimately made in the
notification issued by it. This point has been considered and examined in the
judgment and order of this Court dated 5.5.2004. The language of Sub-section
(2) of Section 37 uses the expression "sanction the modification with or
without such changes, and subject to such conditions as it may deem fit, or
refuse to accord sanction". The language of the Section is very clear and
it empowers the State Government to sanction the proposal of the Municipal Corporation
regarding modification of Development Control Rules "with or without any
changes as it may deem fit".
These words are important and cannot be ignored. They have to be given their
natural meaning. In Union of India v. Hansoli Devi (2002) 7 SCC 273 it has been
held that it is a cardinal principle of construction of a statute that when the
language of the statute is plain and unambiguous, then the Court must give
effect to the words used in the statute and it would not be open to the court
to adopt a hypothetical construction on the ground that such construction is
more consistent with the alleged object and the policy of the Act. In Nathi
Devi v. Radha Devi Gupta (2005) 2 SCC 271 it was emphasized that it is well
settled that in interpreting a statute, effort should be made to give effect to
each and every word used by the legislature. The courts always presume that the
legislature inserted every part of a statute for a purpose and the legislative
intention is that every part of the statute should have effect. In Dr.Ganga
Prasad Verma v. State of Bihar (1995) Supp. (1) SCC 192 it has been held that
where the language of the Act is clear and explicit, the Court must give effect
to it, whatever may be the consequences, for in that case the words of the statute
speak the intention of the legislature. Therefore, the view taken by this Court
in the judgment and order dated 5.5.2004 that the State Government had full
authority to make any changes or add any condition in the proposal of the
Municipal Corporation is perfectly correct. In fact, on the plain language of
the statute no other view can possibly be taken.
10. The High Court also accepted the contention of the writ petitioners
based on the ground of promissory estoppel. The Development Control Rules are
framed by the State Government in exercise of power conferred by Section 158 of
the Act. Consequently they must be treated as if they were in the Act and are
to be of the same effect as if contained in the Act and are to be judicially
noticed for all purposes of construction and obligation. [See State of U.P. v.
Babu Ram Upadhya AIR 1961 SC 751 and State of Tamil Nadu v.
Hind Stones AIR 1981 SC 711 (para 11)]. If the Development Control Rules
have the same force as that of a statute, then no question of promissory
estoppel would arise as the principle is well settled that there can be no
estoppel against a statute. We are in complete agreement with the view taken
earlier by this Court and there is not even a slightest ground which may cast
any doubt regarding the correctness of the earlier judgment.
11. As was observed by this Court in Col. Avtar Singh Sekhon v.
Union of India (1980) Supp. SCC 562 review is not a routine procedure. A
review of an earlier order is not permissible unless the Court is satisfied
that material error, manifest on the face of the order undermines its soundness
or results in miscarriage of justice. A review of judgment in a case is a
serious step and reluctant resort to it is proper only where a glaring omission
or patent mistake or like grave error has crept in earlier by judicial
fallibility ..... The stage of review is not a virgin ground but review of an
earlier order which has the normal feature of finality.
This view has been reiterated in Devender Pal Singh v. State (2003) 2 SCC
501 (para 16). This being the legal position, there is absolutely no ground for
review of the judgment and order dated 5.5.2004. The review petitions are,
therefore, liable to be dismissed.
12. Learned counsel for the review petitioners next submitted that after the
clarification had been issued by the Chief Secretary of the Urban Development
Authority of the State Government by the letter dated 11.6.1998 and consequent
circular had been issued by the Pune Municipal Corporation on 20.7.1999 which
provided that a maximum of 0.8 of the total floor space area of the receiving
plot shall be permitted, large number of land owners whose properties were
reserved for public amenities like roads, schools, gardens, etc. were
encouraged to hand over their lands to the Pune Municipal Corporation free of
cost, in the expectation of fetching higher price for this TDR as a result of
greater utilization to the extent of 0.8 being permissible as against the
earlier 0.4 FSI. Similarly, the developers while negotiating for buildable
properties considered total FSI potential of 1.8 (1 + 0.8 TDR, FSI) as against
1.4 FSI and have accordingly paid much higher consideration towards the land.
Many developers commenced their projects after sanctioning regular 1.0 FSI and
as per the Pune Municipal Corporation procedure applied for further 0.8 TDR,
FSI. In fact, many builders and land owners had got their entire project lay
out approved from the Corporation with 1.8 FSI and had constructed some
buildings upto the sanctioned height.
Many such plans were approved by the Pune Municipal Corporation between the
period 20.7.1999 and 21.11.2001 when the second circular was issued adopting a
different stand. It has been urged that refusal of Pune Municipal Corporation
to honour its own lay out plan has given rise to disputes between developers
and buyers of the flats and also between the developers and land owners. The
difficulty being faced by the review petitioners appears to be quite genuine as
the stand of Pune Municipal Corporation between the period 20.7.1999 to
21.11.2001 was different and building plans were sanctioned without giving
effect to the words "from the very said plot" occurring towards the
end of clause (b) in D.C.R.-2.4.11. A reply affidavit has been filed by Shri
Prashant Madhukar Waghmare, City Engineer, Pune Municipal Corporation giving
statement of TDR cases wherein an excess of TDR was claimed during the period
20.7.1999 to 21.11.2001. The sanction of plan and construction undertaken have
been broadly described in 7 categories and category nos.1 to 4 are as under :
:- S.
No.
Description Total Cases Total sanctioned area (in sq.
meters) Excess TDR utilized (in sq. meters) 1.
Details of construction works for which the final completion certificate was
granted after 21.11.2001, wherein the original sanction for construction by the
Corporation was in excess of 0.4 TDR.
55 213763.89 35544.66 2.
Details of construction works for which the part completion certificate was
granted after 21.11.2001, wherein the original sanction for construction by the
Corporation was in excess of 0.4 TDR.
9 92287.14 20073.25 3.
Details of construction works for which the completion certificate was
granted between 20.07.1999 to 21.11.2001, wherein the original sanction for
construction by the Corporation was in excess of 0.4 TDR.
14 31124.47 4676.57 4.
Details of construction works for which no completion certificate has been
granted so far, wherein the original sanction for construction by the
corporation was in excess of 0.4 TDR 5 8555.62 1600.88 It will be seen that in
all the above mentioned four categories the Municipal Corporation gave sanction
for construction in excess of
0.4 TDR and even completion certificates were issued for serial nos.1 to 3.
13. During the course of hearing Mr. Makarand D. Adkar, learned Advocate for
Pune Municipal Corporation, on instructions received from the Commissioner,
Pune Municipal Corporation, has made a statement that having regard to the
facts and circumstances of the case, the respondent corporation will have no
objection if the constructions made as enumerated in category nos.1 to 4
described above are treated to be not in violation of clause (b) of
D.C.R.-2.4.11.
In the written submission filed by Mr. Vishwajit Singh, Advocate, learned
counsel for Pune Municipal Corporation, it is stated that the Corporation does
not have objection if the four categories of construction mentioned above are
given relief in view of the fact that - a The building plans have been
sanctioned by the Corporation b In most of the cases, the completion or the
part completion certificates have been issued by the Corporation.
c In all the cases, the TDR has been loaded/utilized and commencement
certificate has been issued for the particular projects.
d In all the cases, the construction has taken place with sanction of
Corporation.
The statement made by Mr. Makarand D. Adkar, Advocate, is accordingly taken
on record.
14. The review petitions are dismissed, recording the submission on behalf
of the Pune Municipal Corporation that the constructions mentioned in
categories 1 to 4 above will not be treated to be in violation of clause (b) of
D.C.R.-2.4.11.
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