Shri Girish Vyas
& Anr. Vs. The State of Maharastra & Ors.
Dr. Laxmikant Madhav
Murudkar (since deceased) Through LRs Mrs. Ranjana Laxmikant Murudkar & Ors.
Vs. The State of Maharastra & Ors.
Shri Manohar Joshi
Vs. The State of Maharastra & Ors
Shri Ravindra
Murlidhar Mane Vs. The State of Maharastra & Ors
Shri Rama Nath Jha
Vs. The State of Maharastra & Ors.
Maruti Raghu Sawant
& Ors. Vs. The State of Maharastra & Ors.
J U D G E M E N T
H.L. Gokhale J.
1.
What
is the nature and significance of the planning process for a large Municipal
town area? In that process, what is the role of the Municipal Corporation, which
is the statutory planning authority? Can the State Government interfere in its
decisions in that behalf and if so, to what extent? Does the State Government
have the power to issue instructions to the Municipal Corporation to act in a particular
manner contrary to the Development Plan sanctioned by the State Government, and
that too a number of years after the Municipal Corporation having taken the
necessary steps in consonance with the plan?
Can the State
Government instruct a Municipal Corporation to shift the reservation for a
public amenity such as a primary school on a plot of land, and also instruct it
to grant a development permission for residential purposes thereon without
modifying the Development Plan? Could it still be considered as an action following
the due process of law merely because a provision of Development Control Rules
is relied upon, whether it is applicable or not? Or where the Municipal Corporation
is required to take such contrary steps, supposedly on the instructions of the
concerned Minister / Chief Minister, for the development of a property for the
benefit of his relative, would such instructions amount to interference/mala fide
exercise of power?
Is it permissible for
the landowner and developer to defend the decision of the Government in their
favour on the basis of a provision in the erstwhile Town Planning Scheme as
against the purpose for which the land is reserved under the presently
prevalent Development Plan? Is it permissible for the landowner and developer
to explain and justify such a favourable Government decision by relying upon
the authority of the Government under another section of the statute which is not
even invoked by the Government? What inference is expected to be drawn in such
a situation with respect to the role played by the ministers or the municipal
officers?
What orders are
expected to be passed when such facts are brought to the notice of the High
Court in a Public Interest Litigation? These are some of the issues which arise
in this group of Civil Appeals in the context of the provisions of the
Maharashtra Regional and Town Planning Act, 1966 (for short MRTP Act)
concerning a property situated in Pune Municipal area.
2.
These
appeals arise out of two writ petitions in public interest leading to concurrent
judgments and a common order dated 6th - 15th March 1999 passed by a Division
Bench of the Bombay High Court. These writ petitions bearing nos.4433 and 4434
of 1998 were filed respectively by one Vijay Krishna Kumbhar, a journalist and
one Nitin Duttatraya Jagtap, a Municipal Corporator of Pune. The petitions
pointed out that a particular plot of land bearing Final Plot No.110 (F.P. No. 110
for short), and admeasuring about 3450 sq. meters, situated on Prabhat Road in the
Erandwana area of the city, was initially reserved for a public purpose namely,
a garden/playground, and subsequently for a primary school.
They further pointed
out that a number of years after the Pune Municipal Corporation (hereinafter referred
to as PMC) took all the necessary steps to acquire this particular plot of land,
the landowner one Dr. Laxmikant Madhav Murudkar appointed M/s Vyas Constructions,
a proprietary concern of one Shri Girish Vyas (the appellant in Civil Appeal No.198-199
of 2000) as the developer of the property. Shri Girish Vyas is the son-in-law
of Shri Manohar Joshi who was the Chief Minister of Maharashtra from 14.03.1995
till January 1999.
The petitioners
contended that only because of the instructions from the Urban Development
Department (UDD for short) which was under Shri Manohar Joshi, that in spite of
the reservation for a primary school, the plot was permitted to be developed for
private residences flouting all norms and mandatory legal provisions. They
sought to challenge the building permission which was issued by the PMC under
the instructions of the State Government, by submitting that these instructions
amounted to interference into the lawful exercise of the powers of the Municipal
Corporation, and the same was mala fide.
After hearing all
concerned, the petitions were allowed, and an order has been passed to cancel the
Commencement (of construction) certificates, and Occupation Certificate, and to
pull down the concerned building which has been 5constructed in the meanwhile. The
State Government has been directed to initiate criminal investigation against
Shri Manohar Joshi, Shri Ravindra Murlidhar Mane, the then Minister of State for
UDD, and the then Pune Municipal Commissioner Shri Ram Nath Jha.
3.
Being
aggrieved by this order, the present group of appeals have been filed:(i) Civil
Appeal Nos. 198- 199/ 2000 are filed by the developer Shri Girish Vyas and his
proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450 of 2000 is filed
by the landowner Dr. Laxmikant Madhav Murudkar (since deceased) to challenge the
judgments and the order in their entirety. Their submissions by and large are
similar. (ii) Civil Appeal Nos. 2102-2103 of 2000 are filed by Shri Manohar
Joshi, the then Chief Minister, Civil Appeal Nos. 2105-2106 of 2000 are filed
by Shri Ram Nath Jha who was the then Pune Municipal Commissioner, and Civil
Appeal No. 2120 of 2000 is filed by Shri Ravindra Murlidhar Mane, the then
Minister of State, UDD.
These appeals seek to
expunge the adverse remarks against the appellants, and the order directing
criminal investigation against them. (iii) Civil Appeal Nos. 196-197 of 2000
are filed by Maruti Raghu Sawant and others who were the tenants in this
property. They contend that in the scheme prepared by the developer, they were to
become owners of their tenements whereas under the original reservation, they
were to be evicted.
We may note at this stage
that though the PMC accepts the judgment, it has no objection to the tenants
continuing as tenants of PMC in the building which is constructed for
accommodating them on a portion of the very plot of land. The tenants, however,
contend that if the plot of land is taken over by PMC, they will remain mere tenants
as against the ownership rights which were assured to them by the developer and
the landlord, and are, therefore, continuing to maintain their appeals.
4.
All
these appeals are opposed and the impugned judgment and order are defended by the
original petitioners as well as by the PMC and the State Government. It is
relevant to note that the State of Maharashtra as well as PMC had opposed the
writ petitions in the High Court, but they have not filed any appeals and have
now accepted the judgment and order as it is. Since, all these appeals are
arising out of the same judgment and order, they have been heard and are being
decided together, by treating the appeals filed by Shri Girish Vyas as the lead
appeals. Facts leading to these appeals Reservation on F.P. No. 110 for a
garden
5.
Dr.
Laxmikant Madhav Murudkar (since deceased), appellant in Civil Appeal No. 2450 of
2000 (hereinafter referred to as landowner) owned the property bearing F.P. No.
110. The Government of Maharashtra sanctioned a Development Plan for Pune City
by publishing a notification dated 7.7.1966 in the official gazette dated
8.7.1966, which fixed 15.8.1966 as the date on which the said plan shall come
into force. (The said plan is hereinafter referred to as 1966 7D.P. Plan). Under
the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a garden. The Plan was
sanctioned in exercise of the power of the State Government under Section 10 of
the then prevalent Bombay Town Planning Act 1954 (1954 Act for short). This
notification stated that the PMC had passed the necessary resolution of its
intention to prepare a Development Plan, carried out the necessary survey,
considered the suggestions received from the members of the pubic under Section
9 of the Act, and after modifying the Plan wherever found necessary, submitted it
to the Government, and thereafter the Government having consulted the Director
of Town Planning, had in exercise of its power under Section 10 (1) and (2) of
the Act, sanctioned the Development Plan.
6.
Subsequently,
the 1954 Act was repealed and replaced by the MRTP Act with effect from
11.01.1967. However, by virtue of Section 165 (2) of MRTP Act, the 1966 D.P.
Plan was saved. Consequently, when the landowner applied for the sanction of a
layout in F.P. No.110, the same was rejected by PMC. Therefore, the landowner
served on the State Government a notice dated 8th May 1979 under Section 49 (1)
of the MRTP Act, calling upon it to purchase the land and to "commence the
proceedings for acquisition".
The notice stated that
the F.P. No.110 was not acquired within the period of 10 years granted to the
Planning Authority to implement the D.P. (for the Pune Municipal area, PMC is
the Planning Authority). It further stated that as per his understanding, the
D.P. was under revision but the reservation on petitioner's F.P. No.110 had not
been changed, and `the reservation will never be cancelled and the final plot
will 8never be handed back' to him. The State Government confirmed the purchase
notice under Section 49 (4) of the Act by its letter dated 5.12.1979. The
Government's letter informed the landowner that necessary instructions have
been issued to the PMC, and he may approach their office. Steps for acquisition
of F.P. No. 110
7.
The
standing committee of the PMC thereafter passed a resolution on 5.1.1980 to
initiate the proposal for acquisition. The PMC then forwarded the proposal to
the Collector of Pune on 9.5.1980 to take the steps for acquisition. On 27.8.1981,
the State Government notified the land for acquisition under Section 126 of the
MRTP Act read with Section 6 of the Land Acquisition Act 1894 (for short L.A.
Act). A Special Land Acquisition Officer (S.L.A.O. for short) was appointed to
perform the functions of the Collector.
A notice informing
the initiation of the proceedings under the L.A. Act as required under Section 9
thereof was issued on 8.9.1981 seeking claims for compensation. The landowner
replied to the notice, but did not challenge the acquisition. He filed his claim
statement during the acquisition proceeding, and demanded the compensation at the
rate of Rs. 480 per sq.m, and also that the material removed after demolition of
the temporary structures (of the tenants) on the property should be given to him.
Twenty four tenants filed a common claim statement and objected to the
acquisition, but did not seek any compensation.
They specifically
stated that `there will not be any objection if they are provided with alternative
accommodation on the land to be acquired'. The S.L.A.O. passed his award under
Section 11 of the L.A. Act on 12.5.1983. He rejected the 9objections of the
tenants, and awarded the compensation of Rs. 100 to each of the 25 tenants. He
determined the compensation payable to the landowner at Rs. 6,10,823/-. On 15.3.1985
the landowner withdrew the amount of compensation by furnishing necessary
security, though under protest.
8.
After
the Award was made by the S.L.A.O. on 12.5.1983 as stated earlier, a notice under
Section 12 (2) of the L.A. Act was given, to take possession of the land on 20.5.1983.
Once again, only the tenants objected thereto. They filed a suit on 19.5.1983 in
the Court of Civil Judge, Senior Division, Pune, bearing Suit No. 966 of 1983,
to challenge the acquisition and the Award. The landowner was joined therein as
defendant No. 3.
The Court granted an interim
injunction on 19.6.1983, restraining the authorities from taking possession. However,
after hearing the parties, an order was passed on 9.2.1984 vacating the
injunction, and returning the plaint for failure to give the mandatory notice
required under Section 80 of the Code of Civil Procedure. The tenants filed an
appeal to the District Court against that order, but the same was also dismissed.
Thereafter, the tenants made a representation to the then Minister of State for
UDD, pointing out their difficulties, which persuaded him to pass an administrative
order restraining the authorities concerned from taking possession of F.P. No.
110.
9.
It
is pertinent to note that all along, the landowner did not challenge the acquisition
of his land in any manner whatsoever. On the other hand, he sought a Reference
under Section 18 of the L.A. Act for enhancement of the compensation. The District
Court dismissed that Reference bearing No. 10273 of 1983 by order dated
15.4.1988, but enhanced the solatium and additional amount payable under
Section 23(2) and 23(1A) of the L.A. Act. The amount payable under the order of
the District Court was collected by the landowner, though under protest, but he
did not prefer the appeal permissible under Section 54 of the L.A. Act. Revision
of the D.P. Plan for Pune under the MRTP Act and change of utilisation of F.P.
No. 110 to a Primary school
10.
In
the meanwhile, the process of revising the Development Plan of Pune city under the
provisions of MRTP Act was going on. The PMC as the planning authority had
passed a resolution on 15.3.1976 declaring its intention to prepare a Revised
Development Plan under Section 23 (1) read with Section 38 of the MRTP Act. The
State Government appointed the Director of Town Planning to be the Special Officer
for that purpose under Section 162 (1) of that Act. After observing all the
legal formalities, the said Director published in the official gazette on
18.9.1982 the Revised Draft Development Plan under Section 26 (1) of the Act. In
that plan F.P. No. 110-112 were initially reserved for children's play-ground, but
subsequently the reservation was changed to primary school.
After inviting the objections
and suggestions, and after considering them, the State Government sanctioned
the Revised D.P. Plan on 5.1.1987 (though with a few modifications), to be effective
from 1.1.1987 (hereafter referred as 1987 D.P. Plan for short) as also the
Development Control Rules (D.C. Rules for short). In the sanctioned D.P. Plan of
1987, the purpose of utilization of these three plots was, as stated above
changed to primary school. The modification with respect to these three plots
was as follows:- "Reservation continued. Development allowed as per note
4". Note 4 reads as follows:-
"Sites
designated for Primary Schools from Sector I to VI as may be decided by the Pune
Municipal Corporation may be allowed to be developed by recognized public institutions
registered under Public Charitable Trust Act, working in that field or the
owners of the land."Thus by virtue of this note, the purpose could also be
effectuated either by the owner of the land, or by a recognized charitable
institution.
11.
It
is relevant to note at this stage that a school for the handicapped children
has come up in the adjoining F.P. No. 111. Besides, a primary school was set up
by Symbiosis International Cultural and Educational Centre (`Symbiosis' for
short) on F.P. No. 112. It is stated that Symbiosis and another educational institution
viz. Maharashtra Education Society (MES) had sought these plots since they were
in need of land for extension of their educational activities. The then Chief Minister
of Maharashtra had recommended the proposal of MES by his letter dated
9.4.1986, and the society had applied to the then Commissioner of Pune by its
letter dated 29.4.1986. That was, however, without any effect.
12.
The
S.L.A.O. gave one more notice to take possession of F.P. No.110 on 1.3.1988. It
led to the filing of Regular Civil Suit bearing No. 397 of 1988 by some of the
tenants in the Court of Civil Judge, Senior Division, Pune against the State
Government and PMC, once again challenging the award of the 12S.L.A.O., and seeking
an injunction to protect their possession. The Court granted the interim
injunction as sought. Thereafter the landowner, who was one of the defendants
in the suit, applied for transposing himself as a plaintiff, which prayer was
allowed on 2.4.1988. The Court accepted the contention of the tenants that the acquisition
had lapsed due to the change of purpose of reservation from what it was in 1966
viz. a garden by the time the award was made, and, therefore, decreed the suit
by its order dated 23.4.1990.
13.
The
PMC preferred a first appeal against that decree to the Bombay High Court on
7.1.1991, but the Additional Registrar of the High Court returned the appeal by
his order dated 21.4.1992 for presentation to the District Court on the basis
of the valuation of the suit, and the provision for jurisdiction as it then existed.
Accordingly, the PMC filed the appeal before the District Court immediately on
29.4.1992, but the District Court in turn, by its order passed two years later on
7.4.1994 returned the appeal for re-presenting it to the High Court, on the
ground that the suit was valued above Rs. 50,000/- and as per the rules then
existing the appeal would lie to the High Court.
PMC once again filed the
appeal in the High Court being F.A (Stamp) No. 18615 of 1994 on 18.7.1994,
along with an Application for condonation of delay for the reasons as stated
above. This Appeal remained pending till it was withdrawn on the direction of
the State Government on 18.8.1998, in the circumstances which will be presently
pointed out. It is, however, relevant to note that this appeal was withdrawn at
a point of time when the two public interest petitions were filed on 12.8.1998,
and were pending in the High Court.
The impugned order of
the Division Bench on 13these petitions has directed the PMC to move an Application
before the High Court for reviving the First Appeal (Stamp No.18615 of 1994), and
pursuant thereto the PMC has already moved the necessary Application on
13.1.2000. Be that as it may. Steps taken by the landowner after Shri Manohar
Joshi took over as the Chief Minister of Maharashtra
14.
It
is material to note that after the decision of the Reference Court, the
landowner entered into an agreement of sale of the concerned land with one Shri
Mukesh Jain on 17.8.1989, though no steps were taken thereafter by either of
the parties on the basis of that agreement. It so happened that consequent upon
the elections to the State Assembly, a new Government came in power in the
State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the
Chief Minister (hereinafter referred as the then Chief Minister). He retained
with himself the UDD portfolio.
The earlier referred
Shri Ravindra Mane became the Minister of State for UDD (hereinafter referred
to as the then Minister of State). On 20.10.1995 the landowner entered into a
Development agreement with M/s Vyas Constructions by virtue of which the
landowner handed over all rights of development in the property to them for a
consideration of Rs. 1.25 crores, a flat of 1500 sq. feet area and an office
space of 500 sq. feet in the building to be developed on F.P. No. 110. The
agreement stated that it was being entered into to solve the practical
difficulties. Para 7 thereof stated that the developer shall follow the procedure
or process of de-reservation of the said property. Para 20 and 21 stated that
`after de-reservation of the property, the developer agrees to get the
clearance under the Urban Land (Ceiling and Regulation) Act 1976 which may be
necessary,' and for that purpose he was authorised to get any scheme
sanctioned.
M/s Vyas
Constructions is stated to have settled the claim of above referred Shri Mukesh
Jain. On the same day, the landowner executed an irrevocable Power of Attorney
in favour of Shri Girish Vyas for the development of F.P No. 110. (He is
referred hereinafter as the developer). The landowner simultaneously executed
another Power of Attorney in favour of one Shri Shriram Karandikar on
26.10.1995, authorising him to take necessary steps concerning the development
of that land.
15.
Thereafter,
on 1.11.1995 the architect of the landowner submitted to PMC a building layout
for permission for residential use of F.P. No. 110. The City Engineer of PMC
rejected the proposal by his reply dated 6.11.1995 under Section 45 of the MRTP
Act read with Section 255 of the Bombay Provincial Municipal Corporations Act
1949 (BPMC Act for short) and D.C. Rule No. 6.7.1, since the plot had been reserved
for a primary school, and hence such a permission could not be granted. It was
however pointed out in this reply of the City Engineer that the development of
the land was permissible in the manner indicated in the note No.4 published in
the gazette which has been referred to hereinabove (i.e. putting up a primary
school either by the landowner or by a charitable trust).
16.
At
this stage, landowner's Attorney holder, Shri Shriram Karandikar wrote to the
Minister of State for UDD on 20.11.1995 seeking a direction to the Municipal Commissioner
to sanction landowner's aforesaid application dated 151.11.1995 for development
of the property for residential houses. He relied on the decree of Civil Judge
Senior Division in Civil Suit No.399 of 1998 and prayed for correcting the
Development Plan also. From here onwards starts the role of the then Minister of
State, the Municipal Commissioner, and the then Chief Minister. Processing of
the application dated 20.11.1995 on behalf of the landowner at the level of the
State Government
17.
In
their petitions to the High Court, the writ petitioners made the allegation of
mala fides on the part of the then Chief Minister and the Minister of State for
UDD in entertaining the application made on behalf of the landowner. It,
therefore, became necessary for the Division Bench of the High Court to call
for the original record from the State Government as well as from the PMC. The
application dated 20.11.1995 made by Shri Karandikar on behalf of the landlord
narrated the developments until the date of that application including the
judgment and decree of the Civil Court setting aside the acquisition of the
property.
It was, thereafter, submitted
that the Municipal Commissioner be directed to sanction the development permission
as per the application of the architect of the landowner. It is relevant to
note that as far as this application of Shri Karandikar is concerned, it was
not addressed to the State Government or to the Secretary of the concerned
Department, but directly to the Minister of State for UDD, which fact is noted by
the Division Bench in its judgment.
The application did not
bear any inward stamp of UDD. In the margin of the application, there was a
noting by the Private Secretary of the Minister of State 16for UDD, recording
that the Minister had directed the Deputy Secretary, UDD, to call a meeting on
19.1.1996. The record further shows that although the Under Secretary of UDD Shri
P.V. Ghadge accordingly called the initial meeting, by addressing a letter to the
Director, Town Planning and the Municipal Commissioner, the same was adjourned
to 22.1.1996. On that date, the meeting was attended by the Director of Town Planning,
the Deputy City Engineer of PMC, Deputy Director of Town Planning, Pune, as
well as by Shri Karandikar and his advocate, but what happened in that meeting
is not reflected in this file. Initial Stand of Urban Development Department
and PMC
18.
The
Under Secretary (Shri P.V. Ghadge) prepared a preliminary note dated 2.2.1996 for
the subsequent meeting. At the outset, the note mentions in a nutshell the background
for the meeting which was sought on behalf of the landlord. Thereafter it gives
the initial opinion of the U.D. Department at the end of the note, which is as
follows:- "In this regard it is the advice of the department that, acquisition
has been done after taking action on the purchase notice. The compensation
amount has been accepted. Even if the reservation of the plot is changed, it does
not make any difference. Directions be given to the Pune Municipal Corporation to
immediately present this matter in the Bombay High Court. The question of returning
the plot to the land owner does not arise."
19.
On
the background of this departmental note containing its advice, a meeting was
held on 3.2.1996 presided over by the Minister of State for UDD, and the
minutes of the meeting are part of the record placed before the High Court. Apart
from Shri Karandikar and his advocate, high ranking officers such 17as (i)
Secretary, UDD, (ii) Director, Town Planning, (iii) Commissioner, PMC, (iv)
City Engineer, PMC and (v) Under Secretary, UDD were present in the meeting. The
minutes of the meeting are recorded by the Under Secretary.
20.
These
minutes record that in this meeting the advocate of the applicant explained the
facts leading to his client's application, justifying as to why the reservation
on the land may be deleted. He referred to the Court proceedings, the fact that
25-30 tenants were residing on the property for many years, and that on the
adjoining property a school was running. He therefore submitted that the
reservation on the land be deleted.
21.
The
note records a preliminary query raised by the Secretary, UDD as to whether the
advocate was pleading on behalf of the tenants or the landowner, to which the Advocate
replied that he was pleading for the landowner. The Secretary, UDD raised two
more queries viz. (i) if the land was not useful for reservation because of the
tenants, then how will it be available to the landowner, and (ii) whether the landowner
had ever objected to this reservation, to which the advocate replied in the
negative.
22.
The
City Engineer, PMC pointed out during the meeting that consequent upon the
property owner issuing the purchase notice, the PMC had acquired the land, the
award was made, the property owner had accepted the compensation, and that he
never objected to the change in reservation due to the revision of the D.P. Plan
during the entire period of revision i.e. 1982-87. With respect to the
proceedings initiated by the tenants, he pointed that PMC 18had filed an Appeal
in the Bombay High Court against the judgment of the Civil Court, and the
matter was sub-judice. He specifically asked whether the hearing given to the
applicant was on an appeal under Section 47 of the MRTP Act, or was it on his application.
He pointed out that the
property was under reservation, and it could not be de-reserved in an appeal
under Section 47. It required an action in the nature of modification under
Section 37 of the MRTP Act. If it was an appeal, then it may be rejected, and
if it was an application for modification then a decision cannot be taken as
the matter was sub-judice. On these queries it was stated on behalf of the
landowner that his application was a request and not an appeal. Directions by
Minister of State and report made by the Municipal Commissioner in pursuance
thereof
23.
It
was thereafter pointed out on behalf of landowner that on the adjoining two
plots, schools had been developed, and the Corporation may not need this land. The
note records that in view of this submission, the Minister of State, UDD asked the
Municipal Commissioner to examine whether the PMC really needed the concerned
property.
He also suggested
that it be examined, if PMC can keep some portion of the land under reservation,
and release the remaining to the landowner. If such a compromise is to be
arrived at, then the property owner will have to accommodate the tenants on a
portion of property released to him. If PMC did not have any objection to
reduce the area under reservation, Government will issue the necessary direction
to take action under Section 37. The note records at that stage, that the Municipal
Commissioner pointed out that the permission of the Municipal Corporation (meaning
the 19general body) was necessary to either delete the reservation, or to
reduce the area under reservation.
24.
The
file shows that accordingly the Under Secretary wrote to the Municipal
Commissioner on 14.2.1996 requesting him to examine the possibility regarding
any settlement after a site inspection, and to forward his opinion. He was also
asked to inform as to when had the PMC filed its appeal in the Bombay High
Court, and about its status.
25.
The
file shows that at this stage, the landowner changed his stand. Shri Karandikar
wrote another letter dated 23.3.1996 to the Minister of State that his
application be treated as an appeal under Section 47 of the MRTP Act.
26.
The
Municipal Commissioner replied Government's letter dated 14.2.1996 by his
letter dated 17.4.1996. He pointed out that the development permission for this
particular plot had been rejected because the property was under reservation. Then
he reiterated the position of PMC as stated in the meeting of 3.2.1996. Then he
added - "On 3.2.1996 we took the same stand which was taken by us in
various counts and administrative levels regarding dispute for the development of
property, and that if any change is proposed in the use of the said property,
permission has to be taken from the Pune Municipal Corporation. The Hon'ble
Minister of State for urban development ordered us to survey the subject property
and also ordered to explore the options of changing or reducing the area of the
reservation."
27.
The
Municipal Commissioner then stated that before considering the various options as
directed by the State Government, it was necessary to 20note the background of
the subject property; viz. that as per the 1966 D.P. Plan, it was reserved for
a garden, and subsequently the reservation was changed to a Primary School in
the draft D.P. Plan of 1982 confirmed in 1987. He referred to the litigation
initiated by the tenants, the fact that the PMC had filed an appeal to the High
Court against the decision in the Civil Suit No. 397/1988, and that the High
Court sent back the matter to the District Court and it was pending there.
He placed on record the
fact that though full price of the land was paid to the owner, procedure of
taking actual possession by the PMC was still pending for last 13 years,
because of which it was not possible to make appropriate use of the land. The Minister
had asked him to survey the subject property, and to explore the possibility of
changing or reducing the area of reservation. The commissioner pointed out that
a survey was carried accordingly. He recorded that on inspection following
facts were mainly noted:-
"1. There are
about 36 temporary Houses on the land.
2. Out of the total
area nearly half is encumbered.
3. Two Educational Institutions
in the vicinity of the School.
4. There are 11
Educational Institutions in the vicinity of the School.
5. Except the
temporary Houses on this property the development of the area is planned and
corporation has control over it.
"The Commissioner
however, did not specify as to which area of the city was considered by him
when he spoke about `vicinity' in item No. 4 above.
28.
The
land was to be developed either by PMC or the owner or by a Charitable Trust as
per the D.P. Note 4 referred to above. The Municipal Commissioner then gave his
opinion that development of a primary school on 21that plot by a charitable institution
appeared impossible due to various factors such as the order of the Civil Court,
litigation concerning this plot, the requirement of rehabilitation of the
tenants on that plot, and existence of near-by schools. Besides, the area being
a higher middle class area, the response to a municipal school was doubtful.
He then added as
follows - `considering the funds available, the PMC is inclined to develop school
on some other plot reserved for school'. As we have noted earlier two well-known
educational institutions, viz. MES and Symbiosis had already sought this plot
also. The PMC had however replied to them that it was not possible for it to
give them this plot, since it was not in the possession of PMC. The Municipal
Commissioner failed to bring these very relevant facts to the notice of the
Government. Having noticed these facts, the Division Bench has observed in para
143 of its judgment that the Commissioner's statement in this behalf in his
report was "far from truth".
29.
The
Commissioner then recorded that in view of the direction of the State Government
to suggest alternatives for settlement, he had in the meanwhile, held
discussions with Shri Karandikar, and that Shri Karandikar had expressed
readiness to give alternate unencumbered land within suburbs of Pune admeasuring
5000 to 10000 sq. feet free of cost. Thereafter, in view of the direction of the
State Government and proposals from Shri Karandikar, the Commissioner recorded
two suggestions:- "1. Presently reserved area is about 3541 sq.mtrs out of
which nearly 50% area is occupied by occupants and remaining area is open. The
land owner after excluding the area occupied by the existing houses, to
transfer the remaining area to the Pune Municipal Corporation for school.
However, since the
land owner 22 has accepted compensation for the entire area, for the area to be
transferred, he should refund the amount to the Pune Municipal Corporation at the
rate suggested by the Director of Town Planning. 2. To get transferred land admeasuring
3000 sq.mtrs elsewhere at a convenient place in Pune City with school admeasuring
500 sq.mtrs constructed thereon free of cost as per specifications of the Pune Municipal
Corporation, and for that purpose it is necessary to get executed a proper
agreement. But land to be given elsewhere should not be reserved in development
plan for school or some other purpose." Thereafter his letter stated as
follow:-
"If first
proposal is to be accepted for developing school on remaining area question
regarding decision of Civil Judge, Senior Division would arise. In this
situation it is necessary to have the support of the land owner and tenants for
this proposal. For implementing both the aforesaid proposals suggested by us it
would be appropriate if the following things are complied with:-
1. The Pune Municipal
Corporation administration to take permission from the Pune Municipal
Corporation before releasing rights in respect of the subject property.
2. For deleting reservation
on the property taking action under Section 37 of M.R.T.P.
3. For acquiring new
site as per Proposal No.2 permission of concerned Departments of the Pune Municipal
Corporation will have to be taken.
Then the Commissioner
added:- Prior to this since no such settlement matters have taken place regarding
the development plan of Pune Municipal Corporation, the experience of Pune Municipal
Corporation in this regard is limited. Till the next order is received from the
State Government the Pune Municipal Corporation is continuing the judicial procedure
in respect of this land."
30.
After
the receipt of the letter dated 17.4.1996 from the Municipal Commissioner, the
file shows the following noting dated 24.4.1996:- " Mantralaya, Bombay 400
032 23 Date 24/4/1996 According to the instructions of Shri Chavan, Private
Secretary of the Hon'ble Chief Minister, please forward a copy of the report of
the Pune Municipal Corporation in the matter of Shri Karandikar for the perusal
of the Hon'ble Chief Minister. Shri Ghadesaheb Sd/- Under Secretary Private
Secretary N.V. Minister of State for Finance, Planning and Urban Development Government
of Maharashtra"
31.
On
receiving the above reply dated 17.4.1996 from Municipal Commissioner, Shri
Ghadge, the Under Secretary once again put up a detailed note thereon. In first
8 paragraphs of that note he recorded the previous developments, including and
upto the letter sent by the Municipal Commissioner. Thereafter in paragraph 9,
10 and 11 he put up the proposal of the department:- "9. Considering the
entire aforesaid circumstances, it is firstly pointed out that applicant Shri
Karandikar has approached the Government on behalf of the land owner but the
land owner has already taken the price of the said property in the year 1983.
Though the physical possession
of the said property is not received to the Municipal Corporation still however,
legally Municipal Corporation has become owner of the said property. Therefore,
the Land Owner does not have any right to demand return of the said property by
deleting reservation. Now considering the tenants, they have approached the Court
and therefore, it is not necessary to consider that aspect till the matter is decided
by the Court. If the said matter is decided against the Municipal Corporation still
the said persons shall be tenants and the land owner shall be Municipal Corporation
and further that the tenants have requested for allotment of the land for
developing it.
10. Still however
considering the fact that no way out will be available if the matter is kept
pending as it is, and further considering that there are numerous schools in
the vicinity of the said property, there should be no objection to consider and
approve on government level the alternative No.1 suggested by 24 the Municipal
Commissioner. However, for the said purpose the tenants will have to withdraw
their proceedings from the Court and they will have to pay to the Municipal
Corporation the cost price of the 50% portion to be released for the said
tenants as may be determined by the Director, Town Planning. If the said alternative
is acceptable to the land owner, the Pune Municipal Corporation be informed
about the orders of the Government to initiate proceedings u/s 37 for the
purposes of deletion of 50% property from reservation and to forward the said
proposal to the Government.
11. Second alternative
does not deserve any consideration since for shifting the reservation the alternative
property should have the same area like that of the original one and that it is
necessary that such property should be in the vicinity of approximately 200 mtrs.
from the property under reservation. So also the matters like approach road and
level of the land are also required to be similar. (MARGINAL REMARK - Rule
No.13.5 of Pune Development Control Rules).
12. Proposal in
paragraph 10 submitted for approval." The note was countersigned by Shri
Deshpande, Deputy Secretary, Town Planning on 4.6.1996, and by the Senior Chief
Secretary (NV i.e. Nagar Vikas or Urban Development). Thus the Urban
Development Department did not accept the second proposal of the Municipal Commissioner
to remove the reservation on the plot in its entirety, but recommended the
acceptance of the first proposal to reduce the reservation on the plot to 50% of
its area. The Minister for State however did not sign the note and he ordered a
further discussion on the subject on 12.6.1996.
32.
Thus
there was once again a discussion with the Minister of State, UDD on 12.6.1996
when Shri Karandikar, Shri Harihar, City Engineer, PMC, Shri Deshpande, Deputy
Secretary, Town Planning and Shri Ghadge, Under Secretary were present. Shri Ghadge
made a note of the meeting and signed it on 2513.6.1996, and which note is also
signed by Shri Deshpande and the Additional Chief Secretary. The note records
that on behalf of the applicants it was stated that it was not possible for
them to accept the alternative no.1, and Municipal Corporation should consider the
second alternative.
The note further records
that thereupon the City Engineer suggested that if the applicant shows some
other alternative properties, the Municipal Corporation will inspect all of them
and then consider as to which of them is possible to be accepted. The note
thereafter records as follows:- "In the event such alternative property is
selected by Municipal Corporation, then action to be taken for shifting the reservation
from the subject property as per Rule No. 13.5 of Pune Development Control
Rules can be considered. However, it was clarified by the Department that for that
purpose the condition of 200 mtr. Distance will have to be relaxed and for which
the permission of Hon. Chief Minister will have to be obtained". The PMC
was thereafter asked to submit its response in the light of above discussion. Shri
Ghadge recorded this suggestion in his letter dated 20.6.1996 addressed to the Municipal
Commissioner.
33.
The
Municipal Commissioner then wrote back to the Under Secretary, UDD by his
letter dated 15.7.1996, pointing out that the applicant had shown four sites from
which one at Lohegaon Survey No.261 H.No.1/2 admeasuring 3000 sq.meter was
suitable for a primary school, but it was in the Agricultural zone as per the approved
D.P., and if it was to be converted to Residential zone, the approval of the
State Government will have to be obtained for such a modification.
34.
On
receiving this letter from the Municipal Commissioner, Shri Ghadge once again put
up a detailed note and at the end of para 8 thereof stated as follows:- "Considering
the above circumstances and especially `A" on 12 T.V. and B on 14 T.V.,
there could be no objection in granting permission for shifting reservation
under Rule 13.5 of the D.C. Rules by relaxing the 200 meter condition and
accordingly directions can be given to the PMC for taking the following
necessary action:-
1. The Pune Municipal
Corporation should recover the amount of compensation paid earlier, for acquisition
of final plot No.110 at Earndwane together with the structures, with simple
interest.
2. The State Government
should issue directions to the Pune Municipal Corporation for getting the plot at
Lohegaon, Pune Survey No.261 Hissa No.1/2 from Agricultural zone into residential
zone by following the procedure under Section 37(1) of the Maharastra Regional and
Town Planning Act, 1966 and thereafter submitting the proposal to the State
Government for sanction.
3. The Commissioner Pune
Municipal Corporation should take action for shifting the reservation for
Primary School on Final Plot No.110 in the Development Plan of Pune City under
Rule 13.5 of the Development Control Rules, Pune to Lohegaon, Survey No.261,
Hissa No.1/2 and for that purpose the permission of the Corporation is not necessary
as intimated earlier by the State Government in another case [Survey No.39/1,
Kothrud, Pune].
4. After complying with
(1) and (3) above, the Pune Municipal Corporation should enter into an
Agreement for transfer of the land at Lohegaon Pune and thereafter give development
permission for the plot at Erandwane. However the Completion Certificate for
that place should not be issued unless the construction of School at Lohegaon
is completed." Below that note there are signatures as follows:-
"Sd/- 26/7/96
(P.V. Ghadge)
Under Secretary
Sd/- 26/7/96
(Shri Deshpande)
Deputy Secretary Town
Planning
Sd/- 26/7/96
Additional Chief
Secretary, (U.D.)
Sd/- 30/7/96
Hon'ble Minister of
State (U.D.)
Received
31/7/96 All action be
taken in accordance with law. No objection.
Sd/- 21/8/96
Hon. Chief
Minister"
35.
In
view of the above decision signed by the Chief Minister on 21.8.1996, the
Deputy Secretary, UDD sent a letter/order dated 3.9.1996 to the Commissioner containing
exactly the above four conditions. The letter stated that he had been ordered by
the State Government to inform those four directives, and after quoting those
four directives the letter further directed the Corporation to act as per the above
State Government directives and report compliance. The letter reads as
follows:- "ENGLISH TRANSLATION OF STATE GOVERNMENT LETTER DATED 03/09/1996
(MAHARASHTRA STATE) No.TPS-1896/102/Matter No.7/96/U.D.-93 Urban Development Department
Mantralaya, Mumbai 400 032 Date : 3rd September, 1996 To,
The Commissioner Pune
Municipal Corporation 28 Pune Sub: Development Permission of T.P. Scheme No.1,
Final Ploat No.110. Ref: Request Application dated 20/11/95 by Shri Shriram Karandikar
to Minister of State for Urban Development for Development in the subject
matter. Sir, I have been ordered by the State Government to communicate to you
the following directives.
1. The Pune Municipal
Corporation should recover from the land owner according to the land acquisition
law the principal amount paid for acquisition of Final Ploat No.110, Erandwane along
with construction, with interest thereon at 12%.
2. S.No.261 Hissa No.1/2
Lohegaon, Pune which is in agricultural zone should be included within
residential zone in the Development Plan. For doing this you are directed that
Pune Municipal Corporation should complete the entire legal action under Section
37 (1) of the Maharashtra Regional and Town Planning Act, 1966 and send the proposals
to the State Government for sanction.
3. The Commissioner,
Pune Municipal Corporation should take steps to shift the reservation of primary
school in accordance with Rule 13.5 of the Development Control Rules from Final
Plot No.110, Erandwane to Lohegaon S. No.260 Hissa No.1/2. For this purpose no
sanction is required from the Pune Municipal Corporation as has been earlier communicated
to you in another matter (S.No.39/1 Kothrud).
4. After action as stated
in (1) and (3) above is completed, appropriate agreement be entered into by Pune
Municipal Corporation with land owner about transferring the Lohegaon plot and thereafter
Development permission be granted in respect of the Plot at Erandwane, however no
completion certificate for that place be granted unless the construction of
school at Lohegaon is complete. Corporation to act as per the above State Government
directive and submit report regarding compliance to the Government. 29 Yours
faithfully, Sd/- Vidyadhar Deshpande Deputy Secretary" Notings from the
Municipal Files:-
36.
Thereafter
we have the notings from the Municipal files which show that consequently the
City Engineer has written to landowner on 27.9.1996 to return the amount paid
to him for acquisition of final Plot No.110 T.P. Scheme, No.1 with interest at
the rate of 12%, and secondly to transfer concerned land bearing survey No.261
Hissa No.1/2 at Lohegaon free of cost and without any encumbrances. The letter
further stated that only after compliance of the above two conditions he will
be given permission for development of F.P. No.110. It then stated that building
completion certificate will be given only after the procedure under Section 37 (1)
of the MRTP Act for deleting Survey No.261 Hissa 2/1 at Lohegaon, Hadapsar from
the agricultural zone, and reserving it for primary school is completed, and
sanctioned by the State Government.
37.
Thereafter
there is one more note of the Municipal Commissioner dated 21.9.1996 which records
the opinion of the Senior Law Officer that the permission of the general body of
PMC will be required for entering into an agreement for deleting the
reservation of plot at Erandawana. With respect to the same the commissioner
has recorded as follows:- "However, since the State Government has given clear
orders to take action under Rule 13.5 of the Development Control Rules of Pune
for complying with the subject matters and since 30 directives have been given for
making such change, no permission of the Pune Municipal Corporation is
necessary". Subsequent Developments
38.
Consequently,
the subsequent steps have been taken. The landowner has returned the amount as
sought, a deed of settlement has been entered into between the landowner and the
PMC, and Commencement Certificates have been issued on 28.11.1996 and 3.5.1997
for the two buildings proposed to be constructed. An Occupation Certificate dated
20.12.1997 was also given for a part of the building completed thereafter namely,
B Wing containing 24 flats for the tenants. It is however interesting to note
that PMC instructed its counsel on 19.11.1996 to withdraw its first appeal in the
High Court as directed by the Government even before the landowner returning
the amount of compensation with interest on 22.11.1996.
39.
It
has so transpired that though the land at Lohegaon was handed over to PMC as proposed,
subsequently the Municipal Corporation found that there was not so much need of
a school at Lohegaon, but a school was needed at Sinhagad Road, Dattawadi. The
procedure for changing the zone of the land at Lohegaon as required under
Section 37 of the MRTP Act was also taking its own time at the municipal level.
Once again there was a correspondence between the PMC and the Government in
this behalf.
The Commissioner
wrote to the Dy. Secretary, UDD on 28.5.1998 for a modification in the
conditions in the Government letter dated 3.9.1996 to get the school constructed
at Dattawadi (instead of Lohegaon) in lieu of the school reservation on plot
no. 110 31at Prabhat road. At this stage for the first time we have the letter from
the developer dated 15.7.1998 addressed to the City Engineer of PMC signed by
Shri Girish Vyas for the Vyas Constructions, stating that he was prepared to
offer an alternative site admeasuring 3000 sq. meters at Mundhwa within PMC area
which is in residential zone.
This was to avoid the
difficulty concerning the change of zone. Additionally he was prepared to
deposit an amount with PMC equivalent to the cost of construction of 500 sq.
meters as per PMC's standard specifications, and PMC may construct the school whenever
and wherever it required. He further sought that on his doing so, the final
completion certificate be issued so that the flat purchasers can occupy their
flats in the building on F.P. No.110 which was almost ready.
40.
The
Government file contains one more note made by the Under Secretary Shri Rajan Kop
and signed by Shri Deshpande on 22.7.1998. It is clearly recorded below the note
that it was marked for the Additional Chief Secretary to the Chief Minister, and
also for the Chief Minister. The note mentions that there has been substantial
criticism in local newspaper about this matter. It is stated that the issue was
raised in the general body of PMC, and it was represented that an amenity in
the area is being destroyed by deleting the reservation for a primary school.
The Commissioner had
defended the decision by contending that although 3450 sq. meter area of
reservation of F.P. No.110 was being deleted, reservation on 8219 sq. meters on
adjoining two plots was being maintained. It was also pointed out by the Commissioner
that an additional amenity was being created in another area. The note further
records 32that in the meanwhile the proposal to shift the reservation on the plot
at Lohegaon had been filed (i.e. disapproved) by the Standing Committee of PMC.
Last para of this note states as follows:- "Senior Chief Secretary of Hon.
Chief Minister has issued instructions to put up a self explanatory note in
this entire matter for perusal of Hon. Chief Minister.
It is further instructed
to include the matters wherein the Government has taken a decision in this matter
as also in another matter prior thereto, the information provided and points suggested
by Municipal Corporation with respect to the matters of deletion of reservation
from Pune City Development Plan, etc., Such note containing the full
background, factual and other aspects of the matter would be useful for Hon.
Chief Minister if certain questions are raised with respect to the said matter in
the current session of Legislative Assembly."
41.
On
receiving the developer's letter dated 15.7.1998, the Commissioner once again wrote
to Under Secretary UDD on 23.7.1998 suggesting acceptance of the two proposals
of the developer, but seeking orders of the government therefor. It is material
to note at this stage that in the Government file there is a clear noting of the
Principal Secretary UDD dated 24.7.1998 that the application of Rule 13.5 in
the matter under question was not legal.
As the note states:- ".......With
due respect to the persons then, doing interpretation of the said decision of
the Government and Rule No. 13.5, I feel that application of Rule No. 13.5 in the
matter under question is not legal. Upon plain reading of the said rule it is
clear that this rule can be applied when the reservation is to be shifted within
a distance of 200 mtrs. Government or the Commissioner do not appear to be
empowered for such shifting beyond the distance of 200 mtrs. It would have been
much appropriate that the action for change as contemplated in Sec. 37 of the
Maharashtra Regional and Town Planning Act, 1966 would have been
taken......" 33
42.
In
view of Commissioner's letter dated 23.7.1998 however, once again a departmental
note was prepared containing following opinion, still seeking to resort to Rule
13.5. "...... After considering this issue the following opinion is being
expressed on the proposal of Pune Municipal Corporation. (1) Commissioner, Pune
Municipal Corporation to take action to cancel the action earlier taken of
shifting reservation at Lohegaon as per Rule No. 13.5 and the action of shifting
the said part reservation to Mundhawa be initiated afresh under Rule 13.5. (2) Prior
to taking action as stated in (1) above, even though it is stated by the Commissioner
that the land at Mundhwa admeasuring 3000 sq. mtrs., suggested by the Promoter
is suitable, still however, it is necessary that the Commissioner , Pune
Municipal Corporation should get himself satisfied about the 12 mtr. wide
approach being available to the said land.
After satisfying
itself the legal action for taking the said Mundhwa land in possession of the
Pune Municipal Corporation be completed. After completing these actions only,
it is necessary to take action as stipulated in (1) above. (3) As per the
earlier instructions, the Pune Municipal Corporation got executed agreement for
construction of 500 sq.mtrs. Since the action with respect to Lohegaon land had
remained incomplete, the Municipal Corporation could not grant permission to construct
school therein.
This construction could
have been got done on Mundhwa land. However, from the letter of the
Commissioner, Pune Municipal Corporation it is seen that he has not yet decided
as to whether the school is to be constructed on the said land or not. On the
other hand he has asserted that since the Promoter is ready to pay such amount of
construction no loss would be caused to Municipal Corporation by getting deposited
such amount. Considering this issue, principally there appears to be no
objection on the part of the Commissioner in accepting the proposal of promoter
as recommended by him with a view to get available the necessary amenity for
the school as per their requirements.
However, it would be
binding upon the Commissioner to spend the said amount for the construction at such
place which may be found necessary and as may be recommended by the Education
Committee. (4) Since the actions to be taken as stipulated in point No. (3)
above, are between the Pune Municipal Corporation Education Committee and Commissioner,
Pune Municipal Corporation, there is no reason to suspend the action of
granting completion certification to the Promoter therefore. Therefore, the
Government shall have no objection if the completion certificate is granted by Municipal
Corporation to the 34 Promoter after completing the actions as stipulated in
para No. 1 and 2 subject to the rules and provisions in that behalf.
If the aforesaid issues
are approved, the proposal of the Commissioner in the present circumstances being
FOR superior purpose than these contained in the earlier directives of the Government
there should be no reason to object the proposal submitted by the Commissioner
and the same ought to be principally approval subject however, to the conditions
mentioned in the aforesaid discussion. In accordance hereof the draft or letter
to be sent to Pune Municipal Corporation is put up at Page No. _____/PV. The
above proposal will be issued on the same being approved. Submitted for orders.
Sd/- 27.7.98 (Vidyadhar Deshpande) Dy. Secretary. Sd/-27.7.1998"
43.
Below
this note however, the Additional Chief Secretary to the Chief Minister put up
a remark as follows and signed below it:- "In this matter the developer
and Hon. Chief Minister being related, it is requested that the Hon. Minister
of State should take proper decision as per rules". Thereafter there is
the order of the Minister of State which is as follows:- `Proposal of
Department approved. Orders be issued':- "Sd/- 28.7.98 N.V.V."
44.
The
Deputy Secretary thereafter sent a reply dated 29.7.1998 to the letters of the Municipal
Commissioner dated 28.5.1998 and 23.7.1998. In para 1 thereof he referred to
the Commissioner's letter dated 28.5.1998 seeking to shift reservation on F.P.
No. 110 under DC Rule 13.5 to Mundhawa instead of Lohegaon. Thereafter he
stated in para 2 as follows:- 35 ".........Now the Developer has shown his
readiness to make available land at Mundhawa. Therefore, in your letter you have
sought approval to recover the proper amount required for the construction of 500
sq.mtrs, after taking action stated in preceding paragraph. Upon due
consideration of your request,
I have orders to inform
you that after recovering such proper amount from the Developer, the said amount
be utilized for construction of primary school at such place as may be required
and recommended by the Education Committee of Pune Municipal Corporation. Because
of this order request made by you in your letter dt. 28.5.98 automatically
becomes redundant. In your letter dt. 23rd July 98 you have sought guidance on the
issue of grant of occupancy certificate to the Developer. After taking the
action as stated in paragraph 1 and 2, there is no reason for the Government to
have objection if in furtherance thereof the Pune Municipal Corporation issues the
occupancy certificate subject to the other provisions of the Rules in that behalf."
45.
In
view of the directions dated 3.9.1996 issued by the State Government, the PMC issued
(i) Commencement Certificate (C.C. for short) in the name of the landowner dated
28.11.1996 for constructing a building to rehabilitate the tenants, (ii) the
second C.C. dated 3.5.1997 for constructing the other residential buildings consisting
of ground plus ten floors (named as Sundew Apartment by the developer), and
(iii) the Occupation Certificate (O.C. for short) in part dated 20.12.1997 for the
tenants' building. Thereafter, the developer signed a confirming agreement with
the landowner and his family members on 16.1.1998 to once again confirm the terms
of the earlier referred development agreement entered into between the
developer and landowner on 20.10.1995.
It is at this stage, that
two petitions bearing no. 4433/1998 and 4434/1998 were filed on 12.8.1998 and
14.8.1998 respectively. A Division Bench first issued Rule Nisi without any
interim order. In as much as the construction 36had started from March 1997 and
was substantially completed, only a direction was given in Writ Petition
No.4434/1998 not to create any third party interest. The PMC was already
directed not to grant completion certificate in respect of the ten storey
building. Subsequently, the petitions were heard finally, and the Division Bench
consisting of Hon'ble Justice B.N. Srikrishna and Justice S.S Parkar, rendered two
concurrent judgments on 6th-15th March 1999, and a common order which have been
challenged in the present group of appeals. Justification of the shifting of
reservation under D.C. Rule 13.5: Is it in consonance with the statute?
46.
As
we have noted, the State Government directed the PMC to shift the reservation on
F.P. No. 110 under DC Rule 13.5. The question therefore comes up as to whether the
action by the State is in consonance with the statutory scheme, and that apart
whether such an action is permissible under DC Rule 13.5? If we look to the scheme
of the Act it gives importance to the implementation of the sanctioned plan as it
is and it is only in certain contingencies that the provision thereunder is
permitted to be modified, and that too after following the necessary procedure
made in that behalf. Signification of the Sanctioned Plan and the provisions for
the modification thereof
47.
The
Planning process under the MRTP Act is quite an elaborate process. A number of town
planners, architects and officers of the Planning Authority, and wherever
necessary those of the State Government participate in the process.
They take into
consideration the requirements of the citizens and 37the need for the public
amenities. The planners consider the difficulties presently faced by the
citizens, make rough estimate of the likely growth of the city in near future
and provide for their solutions. The plan is expected to be implemented during
the course of the next twenty years. After the draft Development Plan is prepared,
a notice is published in the official gazette stating that the plan is prepared.
Under Section 26(1) of the Act the name and place where copy thereof will be
available for inspection to the public at large is notified. Copies and extracts
thereof are also made available for sale.
Thereafter suggestions
and objections are invited. The provisions of regional plan are given due
weightage under Section 27 of the Act and then the plan is finalised after following
the detailed process under Section 28 of the Act. This being the position, Chapter-III
of the MRTP Act on Development Plans requires the sanctioned plan to be implemented
as it is. There are only two methods by which modifications of the final
Development Plan can be brought about. One is where the proposal is such that it
will not change the character of the Development Plan, which is known as minor modification
and for which the procedure is laid down under Section 37 of the Act.
The other is where the
modification is of a substantial nature which is defined under Section 22A of
the Act. In that case the procedure as laid down under Section 29 is required
to be followed. There is also one more analogous provision though it is slightly
different i.e. the one provided under Section 50 of the Act, for deletion of
the reservation where the appropriate authority (other than the planning
authority) 38no longer requires the designated land for the particular public purpose,
and seeks deletion of the reservation thereon.
48.
The
Government's action to shift the reservation on F.P. No. 110 is under DC Rule 13.5
and not under Section 37 of the MRTP Act. We may therefore refer to DC Rule
13.5 and Section 37. DC Rule 13.5 reads as follows:- "13.5 If the land
proposed to be laid out is affected by any reservation/s or public purpose/s
authority may agree to adjust the location of such reservation/s to suit the development
without altering the area of such reservation. Provided however, that no such
shifting of the reservation/s shall be permitted.
(a) beyond 200 m. of
the location in the Development Plan.
(b) beyond the holding
of the owner in which such reservation is located, and
(c) unless the
alternative location is at least similar to the location of the Development Plan
as regards access, levels etc.
All such alterations
in the reservations/alignment of roads shall be reported by the Planning
Authority to Govt. at the time of sanctioning the layout."
49.
As
can be seen from the D.C. Rule 13.5, shifting of the reservation thereunder has
to be without altering the size of the area under reservation. Besides it is
permissible only on three conditions namely, that (1) it cannot be beyond 200
metres of the original location in the Development Plan, (2) it has to be
within the holding of the owner in which the reservation is located, and (3)
the alternative location ought to have a similar access and land level as the
original location. Obviously the shifting of the reservation from F.P. No. 110
to a far off place could not be justified under D.C. rule 13.5. 39 Minor
Modifications
50.
Section
37 of the MRTP Act, reads as follows:- "37. Modification of final
Development Plan (1) Where a modification of any part of or any proposal made
in, a final Development plan is of such a nature that it will not change the
character of such Development plan, the Planning Authority may, or when so directed
by the State Government [shall, within sixty days from the date of such
direction, publish a notice] in the Official Gazette [and in such other manner
as may be determined by it] inviting objections and suggestions from any person
with respect to the proposed modification not later than One month from the date
of such notice; and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons, submit
the proposed modification (with amendments, if any), to the State Government for
sanction.
[(1A) If the Planning
Authority fails to issue the notice as directed by the State Government, the State
Government shall issue the notice, and thereupon the provisions of sub-section
(1) shall apply as they apply in relation to a notice to be published by a
Planning Authority.] [(1AA) (a) Notwithstanding anything Contained in sub-sections
(1), (1A) and (2), where the State Government is satisfied that in the public interest
it is necessary to carry out urgently a modification of any part of, or any proposal
made in, a final Development Plan of such a nature that it will not change the character
of such Development Plan, the State Government may, on its own, publish a
notice in the Official Gazette, and in such other manner as may be determined
by it, inviting objections and suggestions from any person with respect to the proposed
modification not later than one month from the date of such notice and shall
also serve notice on all persons affected by the proposed modification and the
Planning Authority.
(b) The State
Government shall, after the specified period, forward a copy of all such
objections and suggestions to the Planning Authority for its say to the
Government within a period of one month from the receipt of the copies of such
objections and suggestions from the Government. (c) The State Government shall,
after giving hearing to the affected persons and the Planning Authority and after
40 making such inquiry as it may consider necessary and consulting the Director
of Town Planning, by notification in the Official Gazette, publish the approved
modifications with or without changes, and subject to such conditions as it may
deem fit, or may decide not to carry out such modification.
On the publication of
the modification in the Official Gazette, the final Development Plan shall be deemed
to have been modified accordingly.] [(1-B) Notwithstanding anything contained
in sub-section (1), if the Slum Rehabilitation Authority appointed under
section 3A of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment)
Act, 1971(Mah. XXV-III of 1971) is satisfied that a modification of any part
of, or any proposal made in, a final Development Plan is required to be made
for implementation of the Slum Rehabilitation Scheme declared under the said Act,
then, it may publish a notice in the Official Gazette, and in such other manner
as may be determined by it, inviting objections and suggestions from any person
with respect to the proposed modification not later than one month from the date
of such notice; and shall also serve notice on all persons affected by the proposed
modification, and after giving a hearing to any such persons, submit the
proposed modification (with amendments, if any) to the State Government for
sanction.]
(2) The State Government
may, [make such inquiry as it may consider necessary] and after consulting the Director
of Town Planning by notification in the Official Gazette, sanction the modification
* * * with or without such changes, and subject to such conditions as it may
deem fit or refuse to accord sanction. If a modification is sanctioned, the
final Development Plans shall be deemed to have been modified accordingly."
51.
As
seen from this Section, the minor modification under Section 37 (1) has to be
such that it will not change the character of the Development Plan. The section
indicates that for setting the procedure under Section 37 into motion, the
Planning Authority has to firstly form an opinion that the proposed modification
will not change the character of the Development Plan. Such an opinion has to
be formed by the Planning Authority meaning the general body of the Municipal
Corporation, since this function is not permitted to be delegated to anybody
else under Section 152 of the Act.
Thereafter the
Planning Authority has to publish a notice in the official gazette inviting the
objections and suggestions from the public with respect to the proposed modification.
It is also required to give a notice to all the persons affected by the proposed
modification. Sub-section (1A) lays down that if the Planning Authority does
not give the notice, the State Government is required to issue the notice as
stated above. The notice to the affected persons in our case will mean notice
at least to the two institutions which had applied for developing a Primary
school on this very plot of land.
Thereafter they have to
be heard, and the proposed modification with amendments if any, is to be submitted
to the State Government for sanction. Subsequently, after making appropriate
enquiries and after consulting the Director of Town Planning the State
Government may under sub-section (2) sanction the modification with or without
appropriate changes, or subject to such conditions as it may deem fit or refuse
to grant the sanction.
52.
Sub-section
(1AA) of Section 37 lays down the power of the State Government where it feels
the urgency for carrying out any such modification. In that case the State
Government may publish the notice in the Official Gazette, and follow the
similar procedure, but subsequently it has to place the proposal before the
general body of the Planning Authority for its say, and thereafter only it may
sanction the modification after consulting the Director of Town Planning in a similar
manner.
This shows that in the
event of a minor modification the general body of the Planning Authority has a
say in the matter. The Government has to invite the objections and suggestions from
the public at large by publishing the notification in the Official Gazette,
plus it has to issue a specific notice to the persons affected by the proposed
modification, and last but not the least it has to consult the Director of Town
Planning before arriving at its decision. In the present case nothing of the
kind has been done.
53.
In
the instant case the officers of the Urban Development Department as well as of
the PMC took the stand (until it was possible), that the procedure under Section
37 will have to be followed. This was because what was contemplated was a
modification of a proposal made in the Development Plan. A reservation for an
amenity was sought to be shifted (which will in fact mean it was sought to be
deleted) from the place where it was provided.
If that was the
official view of UDD and PMC, what was required was a compliance of the
procedure under Section 37(1) and (2). Ultimately, since the direction was given
by the State Government, (and if the State Government thought that there was an
urgency), it was necessary for it to act under Section 37 (1AA), and to publish
a notice in the Official Gazette to invite objections and suggestions from the public
at large, and also from the persons affected by the proposed modification. Thereafter
the State Government was required to send the proposal to PMC for its say and then
it had to consult the Director of Town Planning. Modifications of a substantial
nature
54.
Where
the modification is of a substantial nature, a different procedure is prescribed
under Section 22A of the Act. This Section reads as follows:- 43 " 22A.
Modifications of a substantial nature In section 29 or 31, the expression
"of a substantial nature" used in relation to the modifications made by
the Planning Authority or the officer appointed by the State Government under
sub-section (4) of section 21 (hereinafter referred to as "the said
Officer") or the State Government, as the case may be, in the Draft
Development Plan means,-
(a) reduction of more
than fifty per cent., or increase by ten per cent. in area of reservations
provided for in clauses (b) to (i) of section 22, in each planning unit or sector
of a draft Development Plan, in sites admeasuring more than 0.4 hectare in the Municipal
Corporation area and 'A' Class Municipal area and 1.00 hectare in 'B' Class and
'C' Class Municipal areas;
(b) all changes which
result in the aggregate to a reduction of any public amenity by more than ten per
cent of the area provided in the planning unit or sector in a draft Development
Plan prepared and published under section 26 or published with modification
under section 29 or 31, as the case may be;
(c) reduction in an
area of an actually existing site reserved for a public amenity except for marginal
area upto two hundred square meteres required for essential public amenity or
utility services;
(d) change in the
proposal of allocating the use of certain lands from one zone to any other zone
provided by clause (a) of section 22 which results in increasing the area in
that other zone by ten per cent. in the same planning unit or sector in a draft
Development Plan prepared and published under section 26 or published with
modification under section 29 or 31, as the case may be; (e) any new reservation
made in a draft Development Plan which is not earlier published under section
26, 29 or 31, as the case may be; (f) alternation in the Floor Space Index
beyond ten per cent. of the Floor Space Index prescribed in the Development
Control Regulations prepared and published under section 26 or published with modification
under section 29 or 31, as the case may be.]."Additional requirement of notice
in local newspapers before effecting modifications of substantial nature:-
55.
The
modification under Section 22A requires following of the procedure under
Section 29 of the MRTP Act. It lays down that apart from a notice in the official
gazette, a notice will have to be published in the local newspapers for the
information at the public at large, so that they may make their suggestions or file
objections thereto if they so deem it fit. Section 29 reads as follows:-
"29. Modification
made after preparing and publishing notice of draft Development plan. Where the
modifications made by a Planning Authority or the said Officer in the draft Development
plan are [of a substantial nature], the Planning Authority or as the case may
be, the said Officer shall publish a notice in the Official Gazette and also in
the local newspapers inviting objections and suggestions from any person with
respect to the proposed modifications not later than sixty days from the date of
such notice; and thereupon, the provisions of section 28 shall apply in
relation to such suggestions and objections as they apply to suggestions and objections
dealt with under that section."
56.
As
seen from this Section 22A, it treats modifications of six types as substantial
modifications. They are as follows:-(a) if a plot is admeasuring more than 0.4
hectare (i.e. 4000 sq. metres) in the Municipal Corporation area or an A class
Municipal area a reduction of more than 50 per cent would be considered as a
substantial modification. In B & C class Municipal Areas such a plot has to
be of one hectare.
(b) secondly, under
sub-section
(b) all changes which
result in the aggregate to a reduction of any public amenity by more than ten per
cent of the area provided in the planning unit are considered a substantial
change.
(c) where there is an
actually existing site reserved for a public amenity, except for marginal area
upto two hundred square metres required for essential public amenities or utility
services their reduction will be a substantial modification.
(d) shifting of the
allocation of use of land from zone to zone which results in increasing the
area in the other zone by ten per cent in the same planning unit will be a
substantial modification.
(e) any new
reservation made in a draft Development Plan which is not earlier published
will be a substantial modification, and
(f) alternation in the
Floor Space Index beyond ten per cent will be a substantial modification. Importance
given to the spaces reserved for public amenities
57.
As
we have noted, all such substantial modifications can be effected only after
following the additional requirement laid down in Section 29 viz. a notice in
the local newspapers inviting objections and suggestions within sixty days from
the public at large with respect to the proposed modification. Sub-section (a)
deals with reduction of more than fifty percent in area provided in clauses (b)
to (i) of Section 22 which sub-sections are concerned with proposals for
designation of land for public purposes such as schools, colleges, markets, and
open spaces, playgrounds, transport and communications, water supply, drainage
and sewerage and other public amenities.
It can be seen that
sub-sections (b) and (c) of section 22A give importance to retention of places reserved
for public amenities. Sub-section (b) deals with a reduction of any 46public
amenity by more than ten per cent of the area reserved in the planning unit. Sub-section
(c) deals with any reduction in an actually existing site reserved for a public
amenity (other than marginal area upto 200 sq. metres required for essential
public amenities or utility services for e.g. road widening). Both are treated as
substantial modifications. Section 2 (2) of the MRTP Act defines what is an
"amenity". It is relevant to note that this definition of amenity
includes primary and secondary schools and colleges and polytechnics. It reads
as follows:- "2 [(2). "amenity" means roads, streets, open spaces,
parks recreational grounds, play grounds, sports complex, parade grounds,
gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics,
clinics, dispensaries and hospitals, water supply, electricity supply, street lighting,
sewerage, drainage, public works and includes other utilities, services and
conveniences]."
58.
In
the present case we have a situation where the reservation for a Primary school
on a plot of an area of 3450 sq. metres is deleted. Would it not amount to a
substantial modification under sub-section (b) of Section 22A since it results
into deletion of a public amenity in the entire planning unit? Would it not
mean that in view thereof it was necessary to follow the procedure required
under Section 29 of the Act which provides for a public notice in the Official
Gazettee and also in the local newspapers inviting objections and suggestions?
Would it not mean
that thereafter it was necessary to follow the procedure to deal with the suggestions
and objections laid down while finalizing the draft Development Plan under Section
28 of the Act? Whether the shifting of this reservation is covered under Section
37 or Section 22A is a moot point to consider. One thing is however very clear,
that it could not be justified under D.C. Rule 13.5. If the statute provides
for doing a particular act in a specified manner, it has got to be done in that
manner alone, and not in any other manner. Alleged Conflict between D.P. Plan and
the erstwhile T.P. Scheme canvassed for the first time in the High Court - Can
a provision in the erstwhile T.P. Scheme be relied upon in the face of a
contrary reservation in the subsequent D.P. Plan?
59.
In
as much as the action of the State Government could not be defended under D.C.
Rule 13.5, the appellants came up with the submission for the first time in the
High Court and then in this Court that under the erstwhile Town Planning Scheme,
this F.P. No. 110 could be developed for residential purposes, and that purpose
subsisted in spite of the subsequent reservation for a public purpose on that
plot of land under the D.P. Plan.
60.
It
was pointed out that a Town Planning Scheme was framed under the then Bombay
Town Planning Act of 1915 for Pune City to become effective from 1.3.1931. Regulation
14 of the Principal scheme framed under that Act provided for the areas
included in the scheme which were intended mainly for residential purposes
wherein this plot was included as original plot No. 230/C. It was subsequently
allotted F.P. No. 110.
There was no
reservation on this plot for any public purpose. The 1915 Act was repealed and
replaced by the Bombay Town Planning Act 1957 w.e.f. 1.4.1957 whereunder the concept
of a Development Plan was introduced. However, by virtue of Section 90 of the
1954 48Act the previous schemes were saved. The erstwhile Town Planning scheme
as varied, was sanctioned by the State Government w.e.f. 15.8.1979, and
thereunder the permissible user of F.P. No. 110 continued to be residential. In
the meanwhile, in exercise of its power under the 1954 Act, the State Government
sanctioned the Development Plan of Pune City w.e.f. 15.8.1966 whereunder F.P.
No. 110-112 were reserved for a garden.
The 1954 Act was
repealed and replaced by the MRTP Act 1966 w.e.f. 11.1.1967. By virtue of Section
165 of the MRTP Act, however, the erstwhile Principal T.P. scheme (as varied),
as well as the D.P. Plan were both saved. Subsequently, when the D.P. Plan of
Pune City was revised in 1982 and finalized in 1987 under the provisions of the
MRTP Act, the reservation on the plot was initially proposed to be changed for
a play-ground, but ultimately shifted for a primary school in the final 1987 DP
Plan.
61.
It
is contended on behalf of the landowner and the developer that the permission
for the user of the concerned plot of land for residential purposes under the
T.P. Scheme effective from 15.8.1979 continued to survive by virtue of the saving
clause under Section 165(2) of the MRTP Act, and, therefore, the order passed by
the Government on 3.9.1996 as well as the commencement certificates were valid
even on that count. It is submitted that until the Town Planning scheme is varied
under Section 39 read with 92 of MRTP Act, the proposals in the Final
Development Plan of 1987 cannot have any effect on the land covered by the erstwhile
Town Planning scheme.
The Development Plan
and Town Planning scheme will both have their independent operation until the 49Town
Planning scheme is varied to bring it in accord with the Development Plan. As
noted earlier that right from 8.5.1979, when the landowner issued purchase
notice, and led the State Government and PMC to acquire the plot of land, this
plea was never raised (and the High Court would have been within its rights not
to entertain this plea on the ground of acquiescing into the change of user
under the D.P. Plan). The plea having been considered and rejected in the
impugned judgment, is canvassed once again in this Court. To consider this plea,
it becomes necessary to examine the relevant provisions of the Act. Relevant
provisions of the Act in the context of the D.P. Plan as against the erstwhile
T.P. Scheme
62.
The
preamble of the MRTP Act shows that this is an Act to make provisions for:(1)
planning the development and use of land in regions established for that purpose
and for constitution of regional planning boards therefor,(2) to make better
provisions for the preparation of development plans with a view to ensuring
that T.P. Schemes are made in the proper manner and their execution is made
effective,(3) to provide for the creation of new towns by means of development authorities,(4)
to make provisions for the compulsory acquisition of land required for public purposes
in respect of the plans, and 50(5) for purposes connected with the matters
aforesaid.
63.
(i)
Chapter I of the Act contains the Preliminary provisions. Chapter II of the Act
is concerning the Regional Plans. Chapter III is about the Development Plan, and
Chapter IV about Control of Development and Use of Land included in Development
Plans. Chapter V is about the T.P. Schemes. (ii) Section 3 of the Act permits
the State Government to establish any area in the State to be a Region. A
Regional Plan is supposed to be prepared for various subjects which are mentioned
in Section 14 of the Act.
The `Development
Plan' is defined under Section 2 (9) of the Act as a plan for the development
or re-development of the area within the jurisdiction of a planning authority. Section
2 (19) defines the Planning Authority to mean a local authority, and it includes
some other specified authorities also. There is no dispute that the development
plan has to be prepared `in accordance with the provisions of a Regional plan'
which is what is specifically stated in Section 21 (1) of the Act. (iii) It is,
however, disputed by the developer that the T.P. scheme which is normally supposed
to be a detailed scheme for a smaller part of a Municipal Area has necessarily
to be in consonance with the development plan.
As against this
submission we have the mandate of Section 39 of the Act, which reads as
follows:- "39. Variation of town planning scheme by Development Plan. 51 Where
a final Development plan contains proposals which are in variation, or modification
of those made in a town planning scheme which has been sanctioned by the State Government
before the commencement of this Act, the Planning Authority shall vary such scheme
suitably under section 92 to the extent necessary by the proposals made in the
final Development plan."
This Section states
that the T.P. scheme shall be suitably varied to the extent necessary wherever the
final development plan contains proposals which are in variation or modification
of the proposals contained in the T.P. Scheme. In the instant case, we are
concerned with the final development plan of 1987 which contains the
reservation for a Primary School on F.P. No.110 as against the plot being placed
in a residential zone in the final T.P. scheme of 1979. It is submitted by the appellant
that the planning authority may take steps to vary the T.P. scheme suitably to
bring it in consonance with the D.P plan, but until that is done, the
provisions in the T.P. scheme will survive. The High Court has rejected this
submission by holding that the D.P. plan overrides the T.P. Scheme.
64.
As
noted above, Section 39 lays down that the T.P. Scheme is to be varied suitably
in accordance with the D.P. Plan under Section 92 of the Act. Section 92
appears in Chapter V which is on Town Planning schemes. The first section in
this chapter V is Section 59. Section 59 reads as follows:- "59. Preparation
and contents of Town Planning Scheme (1) Subject to the provisions of this Act
or any other law for the time being in force- (a) a Planning Authority may for
the purpose of implementing the proposals in the final Development Plan, prepare
one or more town planning schemes for the area within its jurisdiction, or any part
thereof; 52 (b) a town planning scheme may make provision for any of the
following matters, that is to say-
(i) any of the
matters specified in section 22; (ii) the laying out or re-laying out of land, either
vacant or already built upon, including areas of comprehensive development; (iii)
the suspension, as far as may be necessary for the proper carrying out of the
scheme, of any rule, by-law, regulation, notification or order made or issued under
any law for the time being in force which the Legislature of the State is
competent to make; (iv) such other matter not inconsistent with the object of
this Act, as may be directed by the State Government.
(2) In making
provisions in a draft town planning scheme for any of the matter referred to in
clause (b) of sub-section (1), it shall be lawful for a Planning Authority with
the approval of the Director of Town Planning and subject to the provisions of section
68 to provide for suitable amendment of the Development plan."As can be seen,
Section 59 states two things: firstly the opening part of sub-section 1 of
Section 59 states that the T.P. scheme is to be prepared "subject to the provisions
of this Act". Thereafter, Sub-section 1(a) of this section specifically states
that the planning authority is to prepare one or more T.P. schemes for the area
within its jurisdiction "for the purpose of implementing the proposals in
the final Development Plan". Thus, Section 39 read with Section 59 do
indicate the approach of legislature, namely, superiority of the D.P. plan over
the T.P. scheme.
65.
The
learned senior counsel for the developer, Shri Naphade relied on the provisions
contained in Section 59 (1) (b) (i), and 59 (2) of the Act in support of his
arguments. Section 59 (1) (b) (i) provides that a town planning scheme may make
provision amongst others for any of the matters specified in 53Section 22 of
the Act. Section 22 lays down as to what ought to be the contents of a Development
Plan. Section 59 (2) states that in making the draft T.P. scheme for any of the
matters referred to in sub-section 1 (b), it shall be lawful for a planning
authority to provide for suitable amendments of the Development Plan. It is, therefore,
submitted that there is no primacy between the Development Plan and the T.P.
scheme. It is contended that if the purpose of the T.P. Scheme is only to implement
the Development Plan, it will militate against the plain reading of Section 51
(2) and 59 (1) (b) and that, in such a case, Section 59 (1) (b) will become
otiose. Shri Naphade, therefore, submitted that the D.P. Plan and the T.P.
Scheme both are of equal strength.
66.
While
examining this submission, we must note that Section 39 requires the T.P.
scheme to be varied to the extent necessary in accordance with the final
Development Plan. The provision in Section 59 (1) (b) (i) is infact made to see
to it that there is no conflict between the T.P. scheme and the Development
Plan. Otherwise, the question will arise as to what meaning will be given to
Section 59 (1) (a) which specifically states that the T.P. scheme is to be prepared
for the purpose of implementing the proposals in the final Development Plan.
Merely because Section 59 (1) (b) provides that the T.P. scheme may make
provision for any of the matters specified in Section 22, the T.P. scheme
cannot be placed on the same pedestal as a Development Plan. Section 59 (2) is
only an enabling provision.
It may happen that in
a given situation a suitable amendment of the Development Plan may as well become
necessary while seeing to it that the T.P. scheme is in consonance with the
Development Plan. Section 59 (2) will only mean that the legislature has given
an elbow room to the planning authority to amend the Development Plan if that is
so necessary, so that there is no conflict between the T.P. Scheme and the D.P.
Plan. In fact what is indicated by stating that "it shall be lawful to carry
out, such an amendment" is that normally such a reverse action is not expected,
but in a given case if it becomes so necessary, it will not be unlawful. Use of
this phrase in fact shows the superiority of the D.P. Plan over the T.P.
scheme.
Besides, the phrase put
into service in this sub-section is only `to provide for a suitable amendment'.
This enabling provision for an appropriate amendment in the D.P. plan cannot
therefore, be raised to the level of the provision contained in Section 39
which mandates that the planning authority shall vary the T.P. scheme if the
final D.P. Plan is in variation with the T.P. Scheme sanctioned before the
commencement of the MRTP Act. It also indicates that subsequent to the
commencement of the Act, a T.P. Scheme will have to be inconsonance with the D.P.
Plan. Similarly, Section 59 (1) (b) (i) cannot take away the force of the
provision contained in Section 59 (1) (a) of the Act. As noted above, Section
39 specifically directs that the planning authority shall vary the T.P. scheme
to the extent necessary by the proposal made in the final Development Plan, and
Section 59 (1) (a) gives the purpose of the T.P. scheme, viz. that it is for
implementing the proposals contained in the final Development Plan. Under
Section 31 (6) of the act, a Development plan which has came into operation is binding
on the planning authority.
The Planning
Authority cannot act contrary to D.P. plan and grant Development permission to
defeat the provision of the D.P. 55plan. Besides, it cannot be ignored that a duty
is cast on every planning authority specifically under Section 42 of the Act to
take steps as may be necessary to carry out the provisions of the plan referred
in Chapter III of the Act, namely the Development Plan. Section 46 of the Act also
lays down specifically that the planning authority in considering an application
for permission for development shall have "due regard" to the provisions
of any draft or any final plan or proposal submitted or sanctioned under the
Act.
It indicates that the
moment a Draft Plan is proposed, a permission for a contrary development can no
more be granted, since it will lead to a situation of conflict. Section 52 of
the Act in fact provides for penalty for unauthorised development or for use
otherwise then in conformity with the development plan. Thus, when it comes to
the development in the area of a local authority, a conjoint reading of the
relevant sections makes the primacy of the Development Plan sufficiently clear.
67.
Much
emphasis was laid on Section 69 (6) which reads as follows:- "(6) The
provisions of Chapter IV shall, mutatis mutandis, apply in relation to the
development and use of land included in a town planning scheme in so far as
they are not inconsistent with the provisions of the Chapter." It was,
therefore, submitted that thus the provisions of Chapter IV which are about the
Control of Development and use of land included in the Development Plan, are
mutatis mutandis applicable to the development and the use of land included in
the T.P. scheme, and therefore the D.P. plan and T.P. scheme are on par.
68.
Now,
it is material to note that sub-sections (1) to (5) of Section 69 operate when
the draft T.P. scheme is under preparation. Sub-section (6) will have to be
read on that background because this sub-section itself states that provisions of
Chapter IV will apply in relation to the development of the land included in a
T.P. scheme "in so far as it is not inconsistent with the provision of this
Chapter", i.e. Chapter V on Town Planning Schemes wherein Section 69 is
placed. Chapter IV is on control of Development and use of land included in
Development Plans. And as noted above, Section 59 (1) (a) which is the first
section of Chapter V clearly contains the direction that the T.P. scheme is to
be prepared for the purpose of implementing the proposals in the final
Development Plan. Therefore, merely because by incorporating the provisions of
Chapter IV those provisions are made applicable to T.P. schemes, the mandate of
Section 59 (1) (a) cannot be lost sight of.
69.
It
is then submitted by the appellant that the Development Plan and the T.P. scheme
operate independent of each other, and, until the State Government exercises
its power of eminent domain under the Development Plan, and acquire the land,
the landowner can develop his property as per the user permitted under the T.P.
scheme. In view of the scheme of the relevant sections and particularly Section
46 which we have noted above, this submission cannot be accepted. It will mean
permitting a development contrary to the provisions of the Development Plan,
knowing fully well that the user under the T.P. scheme is at variance with the Development
Plan. Any such interpretation will make provisions of Section 39, 42, 46 and 52
meaningless.
70.
There
is one more aspect of the matter. Section 43 of the Act lays down that after the
date on which the declaration of intention to prepare a Development Plan is
published, no person shall carry out any development on land without the
permission of the Planning Authority. The principal part of this section reads
as follows:- "43. Restrictions on development of land After the date on which
the declaration of intention to prepare a Development plan for any area is published
in the Official Gazette [or after the date on which a notification specifying
any undeveloped area as a notified area, or any area designated as a site for a
new town, is published in Official Gazette] no person shall institute or change
the use of any land or carry out any development of land without the permission
in writing of the Planning Authority."
71.
This
section will have to be read along with the requirement provided in Section 39.
Section 39 provides for a T.P. Scheme sanctioned and subsisting prior to the Development
Plan. The section mandates that such a prior scheme shall be varied to the
extent necessary by the proposals made in the final Development Plan. Section 43
provides that once the declaration of intention to prepare a Development Plan
is gazetted, no development contrary thereto can be permitted. As provided under
Section 59 (1) (a), the town planning scheme is to be prepared for the purpose of
implementing the proposals in the final Development Plan.
Therefore, even if
such a variation as directed under Section 39 does not take place, the land
cannot be put to use in any way in contradiction with the provision in the D.P.
Plan. In the instant case, we have a provision of the T.P. Scheme effective
from 15.8.1979 as against the D.P. Plan containing a contrary provision which
was notified on 18.9.1982. Shri 58Dholakia, learned senior counsel appearing
for the State Government, therefore, rightly submitted that in view of Section
165 of the MRTP Act, if the construction was completed, partly started or plans
were submitted, or any such appropriate steps were taken prior to 18.9.1982,
the same could have been permitted.
Once the State Government
published the draft Development Plan on 18.9.1982, providing for the reservation
for a primary school, any construction contrary thereto could not be permitted.
This can only be the interpretation of the provisions contained in Section 39
read with Section 43 and Section 165 of the MRTP Act. For convenience, we may
refer to Section 165 (1) and (2), which read as follows:- "165. Repeal and
saving.
(1) The Bombay Town
Planning Act, 1954 and sections 219 to 226A and clause (xxxvi) of sub-section
(2) of section 274 of the Maharashtra Zilla Parishads and Panchayat Samitis
Act, 1961, are hereby repealed. (2) Notwithstanding the repeal of the provisions
aforesaid, anything done or any action taken (including any declaration of intention
to make a development plan or town planning scheme, any draft development plan or
scheme published by a local authority, any application made to the State Government
for the sanction of the draft development plan or scheme, any sanction given by
the State Government to the draft development plan or scheme or any part
thereof, any restriction imposed on any person against carrying out any development
work in any building or in or over any land or upon an owner of land or
building against the erection or re-erection of any building or works, any commencement
certificate granted, any order or suspension of rule, bye-law, regulation, notification
or order made, any purchase notice served on a local authority and the interest
of the owner compulsorily acquired or deemed to be acquired by it in pursuance
of such purchase notice, any revision of development plan, any appointment made
of Town Planning Officer, any proceeding pending before, and decisions of,
a Town Planning Officer,
any decisions of Board of Appeal, any final scheme forwarded to, or sanctioned,
varied or withdrawn by the State Government, any delivery of possession
enforced, any eviction summarily made, any notice served, any action taken to enforce
a scheme, any costs of scheme calculated and any payments made to local authorities
by owners of plots included in a scheme, any recoveries made or to be made or compensation
awarded or to be awarded in respect of any plot, any rules or regulations made under
the repealed provisions shall be deemed to have been done or taken under the corresponding
provisions of this Act, and the provisions of this Act shall have effect in relation
thereto."
72.
The
learned senior counsel Shri Virendra Tulzapurkar appearing for the tenants went
to the extent of contending that by provisions in the T.P. Scheme are superior
to those in the D.P. Plan. In support to his submission he relied upon the judgment
of a Division Bench of Gujarat High Court in Gordhanbhai Vs. The Anand
Municipality & Ors. reported in XVI (1975) Gujarat Law Report 558 which was
under the Bombay Town Planning Act 1954 (the 1954 Act for short) as applicable to
Gujarat. The petitioner therein was aggrieved by the development permission
granted by the Anand Municipality to the respondents Nos. 4 to 12 to put up a
structure on the plot adjoining to his plot.
One of the objections
raised by the petitioner was that the disputed construction did not observe the
margins prescribed in the regulations framed under the Development Plan
(comparable to the D.C. regulations in the present 60case). The respondents
pointed out that the regulations which were published and sanctioned by the
State Government as a part of the T.P. scheme specifically provided that no margin
should be imposed on the particular final plot of the respondents Nos. 4 to 12.
In view thereof, the Division Bench in para 6 of its judgment referred to Section
18 (2) (k) of the 1954 Act which specifically provided that the Town Planning
scheme may provide for the suspension, so far as may be necessary for the
proper carrying out of the scheme of any rule, by-law, regulation, notification
or order made or issued under any Act of the State Legislature. Since that had
been done, the permission for construction in the particular case could not be faulted.
It was in this context
that the Division Bench observed that the provisions of the scheme which are contrary
to those regulations shall prevail over the same. It is material to note that
this provision in Section 18 (2) (k) of the 1954 Act is pari-materia to Section
59 (1) (b) (iii) of the MRTP Act. It is also material to note that like Section
59 (1) (a) of the MRTP Act, Section 18 (1) of the 1954 Act provides as
follows:- "Making and contents of town planning scheme 18. Subject to the
provisions of this Act or any other law for the time being in force:- (1) a local
authority for the purpose of implementing the proposals in the final development
plan may make one or more town planning schemes for the area within its
jurisdiction or any part thereof;" Section 18 of the 1954 Act as well as
Section 59 of the MRTP Act provide for suspension of the regulations in a given
case by making a specific 61provision in the T.P. scheme, which is basically
with the object of implementing the proposals in the Final Development Plan.
This judgment cannot therefore be relied upon to canvass a general proposition that
the provisions in the Town Planning scheme are superior to the Development
Plan. The need for a holistic interpretation
73.
The
provision of a statute are required to be read together after noting the purpose
of the Act, namely that there should be an orderly development in the region, local
authority as well as in the town area. The MRTP Act does not envisage a
situation of conflict. Therefore one will have to iron out the edges to read those
provisions of the Act which are slightly incongruous, so that all of them are
read in consonance with the object of the Act, which is to bring about an
orderly and planned development.
The provision of Section
165 can not be read to mean a right to carry out a development contrary to the
Development Plan, and in any case without a valid development permission
particularly when the landowner had not taken any step in pursuance to the
erstwhile T.P. scheme nor had objected to the changes brought in by the
authorities by following the due process of law. The submissions of Shri Naphade
and Tulzapurkar with respect to the alleged conflict between T.P. and D.P. can
not, therefore, be accepted.
74.
The
observations of O. Chinnappa Reddy J. in para 33 of the Judgment in Reserve
Bank of India Vs. Peerless Corpn. reported in [AIR 1987 SC 1023 = 1987 (1) SCC
424] are instructive in this behalf - 62 "33. Interpretation must depend on
the text and the context. They are the bases of interpretation. One may well say
if the text is the texture, context is what gives the colour. Neither can be ignored.
Both are important. That interpretation is best which makes the textual interpretation
match the contextual.
A statute is best interpreted
when we know why it was enacted. With this knowledge, the statute must be read,
first as a whole and then section by section, clause by clause, phrase by
phrase and word by word. If a statute is looked at, in the context of its
enactment, with the glasses of the statute-maker, provided by such context, its
scheme, the sections, clauses, phrases and words may take colour and appear different
than when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what each section,
each clause, each phrase and each word is meant and designed to say as to fit
into the scheme of the entire Act. No part of a statute and no word of a statute
can be construed in isolation. Statutes have to be construed so that every word
has a place and everything is in its place."...... (emphasis supplied)
75.
The
counsel for the landowner criticised the impugned judgment for accepting the
observations of another Division Bench of Bombay High Court in Rusy Kapadia v.
State of Maharashtra reported in [1998 (2) ALL MR 181], In that matter certain private
land was reserved in the D.P. plan of Pune for a public park. The landowner had
no objection to the same, but the land was not acquired. The landowner sold the
land to some other persons, who moved the Government for de-reservation of the
land to use it for residential purpose. The Government invited objections under
Section 37 of the MRTP Act and thereafter issued the notification granting de-reservation.
At that stage some other citizens filed this PIL challenging that notification
on the ground that the land was ear-marked for environmental purposes and
should not be de-reserved.
It was submitted in
that matter on behalf of the purchasers of the land that in 63the T.P. scheme
the use for residential purpose was permissible, and since the T.P. scheme was
sanctioned subsequent to the development plan, it shall prevail. Rejecting that
argument, the Division Bench observed in para 8 of its judgment as follows:- "......
We heard and also perused the provisions with the assistance of the Ld. Counsel
for the parties. Town Planning Scheme is provided and dealt with by Chapter V
of the Act. This Chapter has beginning with Section 59 and opening of the
section itself refers that the provisions of this Chapter are subject to the provisions
of the Act.
The provisions
precedent to section 59 are from section 1 to section 58 which include section
31, sub-section (6) which proclaims that the Draft Plan is final and binding on
the Planning Authority. As such the binding force would carry even when they anyway
deal with the Town Planning Scheme. Besides this section 39 and section 42 of
the Act unequivocally indicate that the Development Plan has to definitely
prevail over anything and everything including the Town Planning Scheme. In view
of this the submission is without any merit."
76.
The
Division Bench deciding Rusy Kapadia's case (supra) referred to para 25 of the
Judgment of this Court in Bangalore Medical Trust Vs. B.S. Muddapa reported in [1991
(4) SCC 54] to emphasize the importance of protecting environment. The High
Court quashed the decision of the Government granting de-reservation but kept
it in abeyance for a period of two years, and directed that if during this
period the private respondents (i.e. purchasers of the land) provided adequate
green area as envisaged in the development plan, this order will not operate. This
order of the High Court in Rusy Kapadia (supra) was challenged by those private
respondents, the judgment in which Appeal is reported in the case of Raju S. Jethmalani
Vs. State of Maharashtra reported in [2005 (11) SCC 222].
This Court in the
case of Raju Jethmalani 64noted that the observations in Bangalore Medical
Trust were in the context of Section 38 (A) of that Act. The Court also noted
that though the development plan provided the area for the garden, no proceedings
for acquisition of the concerned plot had ever been initiated. In that context,
the court observed that there is no prohibition for preparing the development
plan comprising the private land, but the plan cannot be implemented unless the
said private land was acquired. It was for this reason that the court allowed
the appeal and set aside the order in Rusy Kapadia's case, but this time
directed the petitioners of the PIL (i.e. Rusy Kapadia & Ors.) to raise
funds in six months if they wanted the park to be maintained, in order to
assist the Government to acquire the land, failing which it will be open to the
appellants to develop the land.
This direction was given
because the State Government and PMC had expressed inability to raise the
necessary funds to acquire the concerned plot of land. It is material to note that
in Raju Jethmalani's case this Court did not deal with the controversy
concerning the superiority of the Development Plan vis-a-vis the T.P. scheme, nor
can the Judgment be read as laying down a proposition that development contrary
to the D.P. plan is permissible.
The observations in the
case of Rusy Kapadia as quoted above are approved in the presently impugned
judgment, and have been once again reiterated by another Division Bench of the
Bombay High Court in Indirabai Bhalchandra Bhajekar Vs. The Pune Municipal
Corporation and Ors., reported in [2009 (111) Bom LR 4251]. Having noted the
inter-relation amongst the various sections of the statute, in 65our view, it
cannot be said that the T.P. scheme is either superior or of equal strength as
the Development Plan.
77.
The
counsel for the developer then relied upon the judgment of this Court in Laxmi
Narayan Bhattad Vs. State of Maharashtra reported in [2003 (5) SCC 413] for
further supporting the submission in this behalf. The appellant in this case was
allotted an alternative plot of land and monetary compensation under an award
when part of his land was acquired to implement the T.P. scheme finalized in 1987.
The appellant however
wanted additionally the Transferable Development Rights (TDR) as provided under
Development Control Regulations framed later in 1991. This Court declined to accept
the submission of the appellant. It was held that the appellant will be
eligible only for the benefits under the T.P. scheme, since the acquisition of
his land was to implement the same. The D.C. Regulations of 1991 had come subsequently.
There was no provision for TDR under the T.P. scheme and therefore, the appellant
could not get T.D.R which are provided subsequently in the D.C. Regulations of
1991. This judgment also cannot be read as laying down that the T.P. scheme
will prevail over or is of equal strength as the D.P. plan.
78.
Thus
from the analysis of the relevant provisions and the judgments it is clear that
the right claimed under the erstwhile T.P. scheme could not be sustained in the
teeth of the reservation for a Primary school under the 1987 D.P. plan. The
submission in this behalf cannot be accepted. 66 Additional submissions in this
Court in defence of the Government Order:-
79.
The
appellants came up with some more submissions in this Court. They submitted that
the shifting was protected under Rule 6.6.2.2, and the reference to Rule 13.5
in the Government's order dated 3.9.1996 was erroneous. Now, this Rule 6.6.2.2
reads as follows:- "6.6.2.2 In specific cases where a clearly demonstrable
hardship is caused the Commissioner may by special written permission (i)
Permit any of the dimensions/provisions prescribed by these rules to be
modified provided the relaxation sought does not violate the health safety, fire
safety, structural safety and public safety of the inhabitants, the buildings and
the neighborhood.
However, no relaxation
from the set back required from the road boundary or FSI shall be granted under
any circumstances. While granting permissions under (i) conditions may be imposed
on size, cost or duration of the structure abrogation of claim of compensation
payment of deposit and its forfeiture for non-compliance and payment of
premium." As can be seen from this Rule it provides for variations with
respect to dimensions and structural requirements. This rule 6.6.2.2 is a part
of Rule 6 which contains the `Procedure for obtaining building permission/
commencement certificates'. It does not deal with shifting of a particular
reservation from one plot to another which is covered under Rule 13.5 (with
certain restrictions) to which we have already referred. Thus Rule 6.6.2.2 has
no application at all.
80.
The
request of the landowner was to shift the reservation of a primary school from F.P.
No. 110, and to grant him the permission for development under Section 45 of
the Act. It is also material to note that though subsequent to the Government
orders, Commencement Certificates were issued, 67there was no order
specifically setting aside the earlier order of the City Engineer of PMC passed
under Section 45 of the MRTP Act rejecting the building permission by his
letter/order dated 6.11.1995. We are, therefore, required to infer from the Commencement
Certificate which refers to Section 44 and 45 (alongwith other sections) that
the appeal against the order of the City Engineer is impliedly allowed under
Section 47 of the Act. This is because there is no such specific mention of
reversal of the order dated 6.11.1995 even in the aforesaid order of the State
Government dated 3.9.1996.
81.
It
was therefore contended on behalf of the developer that the order passed by the
Government made a reference to a wrong provision of law. It was submitted that
Section 47 was erroneously relied upon, and the order was in fact an order
passed under Section 50 of the Act. Section 50 reads as follows:- "50. Deletion
of reservation of designated land for interim draft of final Development Plan. (1)
The Appropriate Authority (other than the Planning Authority), if it is
satisfied that the land is not or no longer required for the public purpose for
which it is designated or reserved or allocated in the interim or the draft Development
plan or plan for the area of Comprehensive development or the final Development
plan, may request
(a) the Planning
Authority to sanction the deletion of such designation or reservation or allocation
from the interim or the draft Development plan or plan for the area of Comprehensive
development, or (b) the State Government to sanction the deletion of such
designation or reservation or allocation from the final Development plan. (2) On
receipt of such request from the Appropriate Authority, the Planning Authority,
or as the case may be, the State Government may make an order sanctioning the
deletion of 68 such designation or reservation or allocation from the relevant plan:
Provided that, the Planning Authority, or as the case may be, the State Government
may, before making any order, make such enquiry as it may consider necessary
and satisfy itself that such reservation or designation or allocation is no longer
necessary in the public interest.
(3) Upon an order under
sub-section (2) being made, the land shall be deemed to be released from such
designation, reservation, or, as the case may be, allocation and shall become available
to the owner for the purpose of development as otherwise permissible in the case
of adjacent land, under the relevant plan." As can be seen, Section 50
provides for deletion of a reservation at the instance of an Appropriate
authority (other than the planning authority) for whose benefit the reservation
is made. Such is not the present case. Under sub-section (1) of Section 50, the
appropriate authority has to be satisfied that the land is not required for the
public purpose for which it is reserved.
"Appropriate
authority" is defined under Section 2 (3) of the Act to mean a public
authority on whose behalf the land is designed for a public purpose in any plan
or scheme and which it is authorised to acquire. In the instant case, the
acquiring body is PMC, and it will mean the general body of PMC. Assuming that
the section applies in the instance case, the general body has to be satisfied
that the land is no longer required for the public purpose for which it is
designed or reserved. In the instant case, it is on the direction of the
Minister of State that the Municipal Commissioner has given a report which has
been used by the State Government to pass an order of shifting the reservation
from F.P. No.110.
The officers of the Planning
Authority as well as of the concerned Government 69department were not in
favour of deleting the reservation. The Commissioner's opinion could not have been
treated as the opinion of PMC. Under certain circumstances the Municipal Commissioner
can act on behalf of the Municipal Corporation, and those sections are
specifically mentioned in Section 152 of the MRTP Act. Section 50 is not one of
those sections and, therefore, the State Government could not have made any such
order sanctioning the deletion of reservation on the basis of the report of the
Municipal Commissioner. Section 50 is, therefore, of no help to the appellants.
82.
One
of the sections which was pressed into service to defend the directions of the State
Government dated 3.9.1996 and 29.7.1998 and the actions of the Municipal
Commission was Section 154 (1) of the MRTP Act. This section reads as follows:-
"154. Control by State Government (1) Every Regional Board, Planning Authority
and Development Authority shall carry out such directions or instructions as
may be issued from time to time by the State Government for the efficient
administration of this Act. (2) If in, or in connection with, the exercise of
its powers and discharge of it functions by any Regional Board, Planning
Authority or Development Authority under this Act, any dispute arises between the
Regional Board, Planning Authority or Development Authority, and the State Government,
the decision of the State Government on such dispute shall be final."
It was submitted that
the State Government was thus entrusted with the over-all control in the
interest of efficient administration, and its directions had to be followed by
the Planning Authority, and such directions could not be faulted on any count. In
a similar situation in Bangalore Medical Trust (supra), a 70reservation for a
public park was sought to be shifted for the benefit of a private nursing home.
Amongst others Section 65 of the Bangalore Development Act, 1976 was sought to
be pressed into service which authorised the Government to issue directions to
carry out the purposes of the act. This Court observed in para 52 of that judgment
that the section authorises the Government to issue directions to ensure that
provisions of law are obeyed and not to empower itself to proceed contrary to law.
In the present matter,
it is to be seen that the section provides for directions or instructions to be
given by the State Government for the efficient administration of the Act. This
implies directions for that purpose which are normally general in character,
and not for the benefit of any particular party as in the present case. The provisions
of law cannot be disregarded and ignored merely because what was done, was
being done at the instance of the State Government. Consequently, Section 154
cannot save the directions issued by the State Government or the actions of the
Municipal Commissioner in pursuance thereof.
83.
Thus,
the reliance on these provisions is of no use to the appellants. It was
submitted that while passing the order the Government has referred to a wrong
provision of law and reference to a wrong provision of law does not vitiate the
order if the order can be traced to a legitimate source of power. Reliance was placed
on the judgment of this Court in PR Naidu v. Government of Andhra Pradesh (reported
in AIR 1977 SC 854) = [1977 (3) SCC 160] and VL and Co. v. Bennett Coloman and
Co. [AIR 1977 SCC 1884] = [1977 (1) SCC 561].
In the instant case,
however, the order of the 71Government dated 3.9.1996 cannot be traced to any
legitimate source of power, and therefore, the situation cannot be remedied by
reference to other sources of power. The Division Bench has therefore, rightly
commented on this submission in paragraph 180 of its judgment that `the rub is
that the action taken by the Planning authority was otherwise not legal and
justified'. It could not therefore be justified by reference to other provisions
of law because basically the decision itself was illegal.
84.
Thus
the submission canvassed on behalf of the appellants is that although the
landowner never objected to the reservation either for a garden or a primary
school during the process of the revision of the D.P. Plan during 1982 to 1987,
and although he had received the compensation for its acquisition, he retained the
right to develop the property for residential purposes merely because under the
erstwhile Town Planning scheme residential use was permissible, and it is
supposed to be saved under Section 165 (2) of the MRTP Act.
However, as seen from
the conjoint reading of Section 39, 42 and 46, and the scheme of the Act, such a
submission cannot be accepted. That apart, ultimately it was contended on his behalf
the deletion of the reservation of a primary school on this plot u/s 37 of the
MRTP Act is not necessary, and the order passed by the State Government in his
favour can be explained u/s 50 of the MRTP Act read with D.C. Rule 6.6.2.2. As
we have seen Section 50 as well as D.C. Rule 6.6.2.2. have no application to
the present case, nor can the power of the State Government under Section 154 of
the Act help the appellants. Besides, independent of one's right either under the
D.P. Plan or the T.P. 72Scheme, one ought to have a permission for development granted
by the planning authority traceable to an appropriate provision of law. In the
present case there is none.
The appellants are
essentially raising all these submissions to justify a construction which is without
a valid and legal development permission. The appellants have gone on improving
and tried to change their stand from time to time with a view to justify
Government's order in their favour. However, "Orders are not like old wine
becoming better as they grow older" as aptly stated by Krishna Iyer J. in para
8 of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in
1978 (1) SCC 405. The submissions of the appellants in defence of the decision
of the State Government are devoid of any merit and deserve to be rejected. Legality
of the acquisition of the land: Whether the acquisition lapses on account of
change of purpose of acquisition
85.
As
seen earlier, the letter of the landowner had led to the subsequent steps for
acquisition. The landowner was interested in good return for his land. The
tenants were interested only in the rehabilitation on the same plot of land. That
was their stand until the award dated 12.5.1983. The Civil Court has held the
acquisition for the changed purpose under the D.P Plan as bad in law on the ground
that the initially designated public purpose for acquisition was changed. Was
the civil suit maintainable? Was the view taken by the Civil Court a correct
view? We are required to go into that question also, 73since the order of the
Civil Court is sought to be defended by the landowner as well as by the
developer.
86.
The
Learned Civil Judge Senior Division set aside the award by his judgment and
decree dated 23.4.1990 on the ground that though the land was initially
proposed to be acquired for a garden, it was ultimately to be used for another
public purpose i.e. setting up a primary school. It was contended on behalf of
the developer that in the instant case the declaration under Section 6 of the
L.A. Act was issued when the land was reserved for a garden, and the purpose of
acquisition must subsist as initially designated until the possession of the
land is taken. The Court accepted the contention that the acquisition had
lapsed due the change of purpose of reservation by the time the award was made.
In the instant case, the award was made on 12.5.1983, but pursuant to the award
the possession of the plot was not taken in the circumstances mentioned
earlier. According to the appellant the acquisition was not complete, and the jurisdiction
to further continue with the acquisition was no longer available.
87.
Two
judgments of Bombay High Court were relied upon on behalf of the appellants
i.e. Industrial Development & Investment Company Pvt. Ltd. Vs. State of Maharashtra
reported in 1988 Mh.LJ 1027 (which was relied upon by the Learned Civil Judge
Senior Division also), and Santu Kisan Khandwe Vs. Special Land Acquisition
Officer No. 2 Nasik & Ors reported in 1995 (1) Mh.LJ 363, in support of the
proposition that the purpose of acquisition must subsists till vesting. As far
as the first judgment of the High 74Court in the case of Industrial Development
Company is concerned, the same is about the provisions of MRTP Act, and it has
been specifically overruled by this Court in Municipal Corporation of Greater Bombay
Vs. Industrial Development Investment Co. Pvt. Ltd. & Ors. reported in 1996
(11) SCC 501. It was a case where the concerned parcel of land situated in Dharavi,
Mumbai was acquired by the Municipal Corporation under the MRTP Act initially
for the setting up of a Sewage Purification Plant, but subsequently the land
was sought to be used for the residential and commercial purposes of its
employees, since this Sewage Treatment Plant was shifted to another parcel of
land. This utilisation was held to be completely valid and permissible by K.
Ramaswamy, J.
88.
The
appellants before us contended that Majmudar, J., the other Learned Judge
deciding the I.D.I Co's. case had taken a different view on the issue of change
of user, and therefore, the issue remained undecided, and that the view taken
by the Bombay High Court in the above referred two judgments deserved
acceptance. The appellants submitted that Majmudar, J. agreed with K.
Ramaswamy, J. only to the extent that the petition filed by the respondents in
the High Court deserved to be dismissed on the ground of delay and laches. As
far as the ground of change of purpose is concerned, Majmudar J., expressed his
different opinion in the following few sentences:-
"33. Even though
the proposal under Section 126(1) is for acquisition of land for a specified
public purpose, if the planning authority wants to acquire the land subsequently
for any other public purpose earmarked in the modified scheme as has happened
in the present case that is if the appellant-Corporation which had initially
proposed to acquire the land for extension of sewerage treatment plant wanted subsequently
to acquire the 75 same land for its staff quarters then such a purpose must be specifically
indicated in the plan meaning thereby that the land must be shown to be reserved
for the staff quarters of the Corporation and then the Special Planning Authority
which had become the appropriate planning authority, i.e., BMRDA would be required
to issue a fresh proposal under Section 126(1) read with Section 40(3)(e) and
Section 116 of the MRTP Act and follow the gamut thereafter. So long as that was
not done the earlier proposal under Section 126(1) and the consequential notification
by the State Government under Section 126(2) which had lost their efficacy
could not be revitalised.........."
89.
The
appellants relied upon the judgment of this Court in Special Land Acquisition
Bombay Vs. M/s Godrej & Boyce reported in AIR 1987 SC 2421, in support of
their contention, that the purpose for acquisition must continue until
possession is taken. In that matter this Court held that the title to the land vests
in the Government only when the possession is taken.
It is however,
material to note that this judgment is concerning Section 16 of the L.A. Act. As
far as this submission is concerned, as held by K. Ramaswamy J., in I.D.A Co's
case (supra), one must note that the scheme of MRTP Act is different from that
under the L.A. Act. In para 11 and 12 of his judgment in I.D.I Co's. case
(supra) he has specifically held that Section 126 (1) of the MRTP Act is a
substitute for the notification under Section 4 of the L.A. Act. A declaration under
Section 126 (2) is equivalent to a declaration under Section 6 of the L.A. Act.
The objections of the
persons concerned are considered before such land gets earmarked for public
purpose in the plan. Therefore, there is no need of any enquiry as under
Section 5A of the L.A. Act. Section 126 (1) (c) specifically states that when
an application is made to the State Government for acquiring the land under the
L.A. Act, the land vests absolutely with the Planning 76Authority. Therefore,
it was held that in the scheme of the MRTP Act, it is not necessary that the
original public purpose should continue to exist till the award was made and
possession taken.
90.
The
observations of K. Ramaswamy, J. in paragraph 11 of the judgment in I.D.A. Co's
case (supra) are relevant in this behalf. This para reads as follows:- "11.
If we turn to Chapter III of the MRTP Act, we find that the entire machinery is
provided for preparation, submission and sanction of development plan proceeding
from Section 21 and ending with Section 31. These provisions, in short, provide
for preparation of draft development plant by the planning authority inviting objections
of persons concerned against such proposals, hearing of objections filed by the
objectors as per Section 28 sub-section (3) by the Planning committee and then submitting
its report to the planning authority which ultimately gets the proposals approved
by the State Government under Section 30.
All these provisions do
indicate that requirement, designation, reservation or earmarking of any land
for acquisition for any specified public purpose as indicated in the plan has already
undergone the process of hearing after the objections of the persons concerned
were considered and then such land gets earmarked for public purpose in the
plan. It is after that stage, therefore, when need to acquire such earmarked,
designated or reserved land for public purpose under the plan arises, that Section
126(1) proposal gets issued by the planning authority concerned and which
itself becomes a substitute for Section 4(1) notification under the Act. It would
thus, appear that the scheme of acquisition of earmarked land under the plan for
a specified public purpose thereunder, is a complete scheme or code under the
MRTP Act. It is a distinct and independent scheme as compared to general scheme
of acquisition under the Land Acquisition Act." (emphasis supplied)
91.
In
this connection, we must note Section 126(1) of the MRTP Act provides for three
modes of acquisition of land for public purposes specified in the plan. The
third mode is by making an application to the State Government 77for acquiring
such land under the L.A. Act, and thereafter the land so acquired vests
absolutely in the Planning Authority. Sections 126(1) and (2) are extracted
herein below for ready reference.
"126 -
Acquisition of land required for public purposes specified in plans (1) Where after
the publication of a draft Regional Plan, a Development or any other plan or
Town Planning Scheme, any land is required or reserved for any of the public purposes
specified in any plan or scheme under this Act at any time the planning Authority,
Development Authority, or as the case may be, [any Appropriate Authority may,
expect as otherwise provided in section 113A] [acquire the land,-
(a) by agreement by
paying an amount agreed to, or (b) in lieu of any such amount, by granting the
land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing
with the Planning Authority, Development Authority or Appropriate Authority, as
the case may be, for payment to the lessor, an amount equivalent to the value
of the lessor's interest to be determined by any of the said Authorities
concerned on the basis of the principles laid down in the Land Acquisition Act,
1894(I of 1894),
Space Index (FSI) or Transferable
Development Rights (TDR) against the area of land surrendered free of cost and free
from all encumbrances, and also further additional Floor Space Index or
Transferable Development Rights against the development or construction of the amenity
on the surrendered land at his cost, as the Final Development Control Regulations
prepared in this behalf provide, or (c) by making an application to the State Government
for acquiring such land under the Land Acquisition Act,
1894(I of 1894),and the
land (together with the amenity, if any so developed or constructed) so
acquired by agreement or by grant of Floor Space Index or additional Floor Space
Index or Transferable Development Rights under this section or under the Land
Acquisition Act, 1894(I of 1890), as the case may be, shall vest absolutely free
from all encumbrances in the Planning Authority, Development Authority, or as the
case may be, any Appropriate Authority.] (2) On receipt of such application, if
the State Government is satisfied that the land specified in the application is
needed for 78 the public purpose therein specified, or
[if the State
Government (except in cases falling under section 49 [and except as provided in
section 113A)] itself is of opinion] that any land included in any such plan is
needed for any public purpose, it may make a declaration to that effect in the
Official Gazette, in the manner provided in section 6 of the Land Acquisition Act,
1894(I of 1894), in respect of the said land. The declaration so published shall,
notwithstanding anything contained in the said Act, be deemed to be a
declaration duly made under the said section: [Provided that, subject to the
provisions of sub-section (4), no such declaration shall be made after the
expiry of one year from the date of publication of the draft Regional Plan,
Development Plan or any other Plan, or Scheme, as the case may be.] (3)
........ (4) ........"
92.
Section
128 of the MRTP Act strengthens the view that we are taking. Section 128 deals with
a situation where the land is sought to be acquired for a purpose other than
the one which is designated in the plan or the scheme. In that case provisions of
the L.A. Act apply with full force. This Section reads as follows:- "128. Power
of State Government to acquire lands for purpose other than the one for which
it is designated in draft plan or scheme. (1) Where any land is included in
[any plan or scheme] as being reserved, allotted or designated for any purpose therein
specified or for the purpose of Planning Authority or Development Authority or
Appropriate Authority and the State Government is satisfied that the same land is
needed for a public purpose different from any such public purpose or purpose
of the Planning Authority,
Development Authority
or Appropriate Authority, the State Government may, notwithstanding anything contained
in this Act, acquire such land under the provisions of the Land Acquisition
Act, 1894(I of 1894). [(1A) Save as otherwise provided in this Act or any other
law for the time being in force where any land included in any 79 plan or
scheme as being reserved, allotted or designated for any purpose therein specified
or for the purposes of a Planning Authority or Development Authority or Appropriate
Authority, is being acquired by the State Government under the provisions of the
Maharashtra Industrial Development Act, 1961(Mah. III of 1962), for the Maharashtra
Industrial Development Corporation (being the Special Planning Authority deemed
to have been appointed as such under sub-section (1A) of section 40), the provisions
of sub-sections (2) and (3) of this section shall mutatis mutandis, apply to
such acquisition proceedings.]
(2) In the
proceedings under the Land Acquisition Act, 1894(I of 1894), the Planning Authority,
or Development Authority or Appropriate Authority, as the case may be, shall be
deemed to be a person interested in the land acquired; and in determining the amount
of compensation to be awarded, the market value of the land shall be assessed as
if the land had been released from the reservation, allotment or designation made
in the [any plan or scheme] or new town, as the case may be, and the Collector or
the Court shall take into consideration the damage, if any, that Planning Authority
or
Development Authority
or Appropriate Authority, as the case may be, may sustain by reason of acquisition
of such land under the Land Acquisition Act, 1894(I of 1894), or otherwise, and
the proportionate cost of the Development plan or town planning scheme or new town,
if any, incurred by such Authority and rendered abortive by reason of such
acquisition. (3) On the land vesting, in the State Government under sections 16
or 17 of the Land Acquisition Act, 1894(I of 1894), as the case may be, the
[relevant plan or scheme] shall be deemed to be suitably varied by reason of
acquisition of the said land." Sub-section (1) of this Section states that
in such situations the provision of L.A. Act will apply notwithstanding
anything contained in the MRTP Act, and sub-section (3) specifically states
that in such an event the vesting will take place under Section 16 and 17 of
the L.A. Act as the case may be.
That is not the case
with respect to the acquisition under Section 126 of the MRTP Act, where the
vesting takes place in the three circumstances mentioned thereunder. In the
present case also the acquisition is resorted to by issuing a notification 80under
Section 126 read with Section 6 of the L.A. Act. The vesting therefore takes
place at that stage.
93.
After
the declaration is made under Section 126 (2) of the MRTP Act, the proceedings
to determine the compensation follow the procedure as laid down under the L.A. Act
until Section 11 thereof. A notice is given to the interested persons as required
under Section 9 of the L.A. Act to lodge their claims to compensation for all
the interests in such land. Thereafter, they are heard in the inquiry made by
the Collector or the S.L.A.O., and after following the requirements as laid
down in Section 11, the compensation is arrived at. The change of purpose of utilisation
of the land acquired under Section 126 of the Act does not make any difference
in this behalf. There is no prejudice caused to the landowners since the award
is made only after affording them full hearing concerning their claims for
compensation.
94.
(i)
When it comes to urgency also, there is a separate provision in the MRTP Act,
distinct from the one in the L.A. Act. Section 129 of the MRTP Act contains
provisions different from Section 17 of the L.A. Act. Under sub-Section (2) of
Section 129 there is the requirement of paying to the owner of the land
concerned, an interest @ 4% per annum on the amount of compensation, from the
date of taking possession of the land until the date of payment.(ii) Thus the
MRTP Act contains a separate scheme in Chapter VII of the Act distinct from the
one in L.A. Act. This is because MRTP Act is a special 81act enacted for the purpose
of planned development and the provisions concerning land acquisition are made
therein in that context.
95.
We
may mention at this stage that recently a Constitution Bench of this Court has
also held in the context of Section 11A of the L.A. Act (providing for two
years period to make the award) in Girnar Traders (3) Vs. State of Maharashtra
& Ors. reported in 2011 (3) SCC 1, that only the provisions with respect to
the acquisition of land, payment of compensation and recourse of legal remedies
under the L.A. Act can be read into Chapter VII of the MRTP Act concerning Land
Acquisition, and Section 11A of the L.A. Act will not apply thereto.
It held that in the scheme
of the MRTP Act, the provisions of Land Acquisition Act would apply only until
the making of the award under Section 11 of the Act. The Court held that MRTP
Act is a self contained code and Sections 126 to 129 thereof clearly enunciate
the intention of the framers that substantive provisions of L.A. Act are not applicable
to MRTP Act. In para 129 of the judgment the Constitution Bench has
specifically held:- "129. ...... Vesting, unlike Section 16 of the Land Acquisition
Act which operates only after the award is made and compensation is given, whereas
under the MRTP Act it may operate even at the initial stages before making of
an award, for example, under Sections 126(1)(c) and 83."
96.
The
appellants herein have contended, and so had the respondents in I.D.A. Co's case
(supra) contended that the original public purpose should continue till the
award was made and possession taken. While dealing with this proposition, K.
Ramaswamy, J. took an overview of the leading judgments in this behalf. The
Learned Judge in arriving at his conclusions referred to the law laid 82down by
this Court in Ghulam Mustafa Vs. State of Maharashtra reported in 1976 (1) SCC
800, Mangal Oram Vs. State of Orissa reported in 1977 (2) SCC 46 , State of Maharashtra
Vs. Mahadeo Deoman Rai reported in 1990 (3) SCC 579 , Collector of 24 Parganas Vs.
Lalit Mohan Mullick reported in 1986 (2) SCC 138, and Ram Lal Sethi Vs. State
of Haryana reported in 1990 Supp. SCC 11.
97.
It
is relevant to refer to these judgments. Ghulam Mustafa (supra) & Mangal Oram
(Supra) were both cases concerning the acquisition under the Land Acquisition
Act. In the case of Ghulam Mustafa, V.R. Krishna Iyer J., observed as follows:-
".....once the original acquisition is valid and title has vested in the municipality
how it uses the excess land is no concern of the original owner and cannot be the
basis for invalidating the acquisition. There is no principle of law by which a
valid compulsory acquisition stands voided because long later the requiring
authority diverts it to a public purpose other than the one stated in the
Section 6(3) declaration." In Mangal Oram (supra) a bench of three Judges
specifically held that use of land after a valid acquisition for a different public
purpose will not invalidate the acquisition.
In Collector of 24
Parganas (supra) the notification under Section 4 of the West Bengal Land Development
and Planning Act was issued for settlement and rehabilitation of displaced
persons. Subsequently the land was utilised for establishment of a Hospital for
crippled children, which was held to be not vitiated. In Union of India Vs.
Jaswant Rai Kochhar reported in 1996 (3) SCC 491 land acquired for housing scheme
was utilised for commercial purpose i.e. a District Centre. This Court held in
that matter that it is 83will settled law that land sought to be acquired for
one public purpose may be used for another public purpose. In State of Maharashtra
Vs. Mahadeo Deoman Rai reported in 1990 (3) SCC 579 yet another Bench of three
Judges had held that requirement of public purpose may change from time to time
but the change will not vitiate the acquisition proceeding. The opinion
rendered by K. Ramaswamy J. is in conformity with this line of judgments. Following
this law, K. Ramaswamy, J. held in para 22 as follows:-
"22. It is thus well-settled
legal position that the land acquired for a public purpose may be used for another
public purpose on account of change or surplus thereof. The acquisition validly
made does not become invalid by change of the user or change of the user in the
Scheme as per the approved plan........... It would not, therefore, be
necessary that the original public purpose should continue to exist till the
award was made and possession taken." This being the position, there is no
difficultly in stating that the two judgments of the Bombay High Court which are
relied upon by the appellants (viz. in the cases of I.D.I. Co. (supra) and
Santu Kisan Khandwe (supra) do not lay down the correct position of law. We are
in respectful agreement with the opinion rendered by K.Ramaswamy J. in I.D.I.
Co's Case. The acquisition of the land in the present case cannot said to be
invalid on account of change of purpose during acquisition.
98.
That
apart, there is also the question as to whether the Civil Court had the jurisdiction
to entertain a suit to challenge the acquisition after the award was rendered. This
is because when it comes to acquisition, the L.A. Act provides for the entire
mechanism as to how acquisition is to be effected, and 84the remedies to the aggrieved
parties. In State of Bihar Vs. Dhirendra Kumar & Ors. reported in 1995 (4) SCC
229 this Court in terms held that since the Act is a complete code, by
necessary implication the power of the Civil Court to take cognizance of a case
under Section 9 of the CPC stands excluded, and Civil Court had no jurisdiction
to go into the question of the validity or legality of the notification under
Section 4 and declaration under Section 6, which could be done only by the High
Court in a proceeding under Article 226 of the Constitution. In view of this
dictum the civil suit itself was not maintainable in the present case. Conduct
of the Landowner/Developer
99.
99.
The facts as narrated earlier can be placed into proper prospective if we note
the conduct of the landowner and the developer appointed by him as it emerges
from stage to stage which is as follows:-(a) The landowner never raised any objection
when the F.P. No. 110 was sought to be reserved for a public purpose, viz.
either for a garden/playground or subsequently for a primary school.(b) On his issuing
the purchase notice to the Government to purchase the land and to commence the proceedings
for acquisition, the State Government responded by confirming the purchase
notice under Section 49 (4) of the Act by its letter dated 5.12.1979.(c) When SLAO
started the acquisitions proceedings, and when the notice under Section 9 of
the L.A. Act was issued, the landowner replied the same but 85did not challenge
the acquisition as such.
He merely demanded
compensation at a rate of Rs. 480 per sq.m, and demanded that the material removed
after demolition of the temporary structures (of the tenants) on the property be
handed over to him.(d) After the SLAO rejected the objections of the landowner as
well as the tenants, and gave his award dated 12.5.1983, the landowner accepted
the compensation on 15.3.1985, though under protest.(e) After the Reference Court
enhanced the solatium and the special component by its order dated 15.4.1988,
the landowner accepted the enhanced amount, once again under protest.
However, he did not
file the statutory appeal available to him under Section 54 of the L.A. Act.(f)
When the notice to take possession was given, it is the tenants alone who filed
a suit to challenge the acquisition.(g) After the injunction in that suit No.
966 of 1983 was vacated, the tenants represented to the Minister of State for
UDD, pointing out their difficulties. The landowner did not challenge the
acquisition in any manner whatsoever.(h) After the Development Plan under the
MRTP Act was sanctioned, though the reservation was continued, the purpose of utilization
of the land was changed in the 1987 D.P. plan from garden to primary school. Thereafter,
when the SLAO gave one more notice to take possession on 1.3.1988, some of the
tenants filed another Civil Suit bearing No. 397 of 1988 in the Court of Civil 86Judge,
Senior Division Pune.
It was at that stage
that the landowner who was a defendant in that suit, applied for transposing himself
as a plaintiff which application was allowed on 2.4.1988. The Civil Court having
held that the acquisition had lapsed due to the change of purpose of
acquisition (from what it originally was in 1966), the PMC filed an Appeal
which is pending thereafter.(i) After Shri Manohar Joshi took over as the Chief
Minister on 14.3.1995, the landowner entered into a Development agreement with
M/s Vyas Constructions on 20.10.1995. Besides, he executed two powers of
attorney, one in favour of its proprietor Shri Girish Vyas on 20.10.1995 for carrying
out development on F.P. No. 110, and another in favour of Shri Shriram
Karandikar on 26.10.1995 to take necessary steps concerning this development.
Thereafter the follow-up
steps were taken by Shri Karandikar, until the last stage when Shri Girish Vyas
stepped in.(j) After the City Engineer, Pune rejected the proposal of the
Architect of the landowner for building permission by his reply dated 6.11.1995,
the above referred Shri Karandikar straightaway wrote to the Minister of State
for UDD on 20.11.1995, and sought a direction to the Municipal Commissioner to consider
landowner's application for development of the property. This application was
not addressed to the State Government or to the Secretary concerned, but straightaway
to the Minister of State for UDD, and did not bear any inward stamp of the
department.
The noting of the
Private Secretary of the Minister of State in UDD in the margin of the application
showed that it was directly received at the Minister's level. Thereafter as
directed by the Minister of State, 87the Under Secretary of UDD immediately called
a meeting of high ranking officers such as Secretary UDD, Director Town
Planning, Commissioner of PMC, City Engineer of PMC, and Under Secretary UDD, which
meeting would not have been possible unless one had a clout with the
Ministry.(k) The initial stand of the administration was clearly reflected in
the notings, and in the record of the meeting held on 3.2.1996. The preliminary
note dated 2.2.1996 from the department clearly stated that the land had been acquired
after taking the necessary action on the purchase notice, and the compensation
had been accepted.
The question of returning
of the plot to the landowner therefore did not arise.(l) During the meeting held
on 3.2.1996 the City Engineer of PMC also pointed out that landowner had never
objected to the reservation on the plot, or the change in the purpose of its
utilization from 1982 to 1987, i.e. during the entire process of revising the development
plan. If the proceeding before the Minister of State was in the nature of an
appeal under Section 47 of the MRTP Act (against the rejection of the proposal
of development) under Section 45, the same could not be entertained, and the
appeal had to be rejected.
If it was an application
for de-reservation then it had to be considered under Section 37 of the MRTP
Act and not otherwise.(m) The landowner initially took the stand that it was not
an appeal, but subsequently wrote a letter on 23.3.1996 through Shri Karandikar
that it was an 88appeal under Section 47 of the MRTP Act. The landowner and the
developer have been changing their stand from time to time. The conduct of the Minister
of State for UDD, the then Chief Minister, and the Municipal Commissioner
100.
We
may now refer to the conduct of the then Minister of State for UDD, the then
Chief Minister and the then Municipal Commissioner. (a) As stated above the
application of the landowner was received directly at the level of the Minister
of State and immediately a meeting of high ranking officers was called, which
is normally not done.(b) In spite of a clear initial stand taken by the City
Engineer PMC, as well as by the senior officers of UDD such as its Secretary, in
view of the landowner submitting that on the adjoining plots schools had been
developed, the Minister of State for UDD asked the Municipal Commissioner to
survey the property and make a report, whether the PMC really needed the concerned
property.
The note of the
meeting dated 3.2.1996 shows that initially the Minister of State for UDD was also
of the view that if necessary a direction may be issued under Section 37 of the
Act, and only a part of F.P. 110 could be released if PMC did not have any
objection to reduce the area under reservation. (c) In view of the direction of
the Minister of State, the Municipal Commissioner who is the Chief Executive of
PMC and an I.A.S. officer of a high rank was asked to make a report after
personally making a site inspection. A 89direction to a high ranking officer to
make a site inspection is not expected in such a case, and is quite unusual and
disturbing to say the least. (d) In his letter dated 17.4.1996 the Municipal Commissioner
reiterated the earlier stated stand of PMC to begin with, and then gave the
report about the schools in the vicinity.
However, he
volunteered to add thereafter that private institutions may not come to this
plot to set up a primary school, and PMC may as well spend its funds elsewhere.
This was not correct since the applications of two reputed educational institutions
for this very plot were pending with the PMC, and this fact was not stated by
the Commissioner in his report. (e) In view of the direction of the State
Government, the Commissioner held discussions with Shri Karandikar, who offered
to give an alternate unencumbered plot of land of about 5000 to 10,000 sq. feet
free of cost.
Thereafter the Commissioner
recorded in his letter the two proposals given by Shri Karandikar, and observed
that if the school was to be shifted from F.P. No. 110, an action under Section
37 of the MRTP Act as well as the permission from PMC will be required.(f) On
24.4.1996 there is a noting (which is subsequent to the letter of the Municipal
Commissioner dated 17.4.1996) that the file was called by the then Chief Minister
for his perusal. Thus the Chief Minister had kept himself fully abreast with
the developments in this matter.(g) The UDD department did not accept the
proposal of shifting the school from F.P. No. 110 to a place far away, as seen
from the note prepared by the 90department (signed by the Deputy Secretary on
4.6.1996) recording that if the school was to be shifted from F.P. No. 110, it
had to come up in the vicinity of approximately 200 metres as per rule 13.5 of Pune
D.C. Rules.
The note suggested acceptance
of the proposal of reduction of 50% of the area under reservation by resorting
to the procedure under Section 37 of MRTP Act. (h) The Minister of State did not
approve this note dated 4.6.1996, and in view of Shri Karandikar insisting on
shifting the school from F.P. No. 110, the subsequent note dated 13.6.1996
recorded that if the condition of 200 metres is to be relaxed, orders will have
to be obtained from the Chief Minister (which power is disputed by the
Principal Secretary, UDD in his subsequent note dated 24.7.1998). (i) Thereafter,
the developer offered another parcel of land at Lohegaon (which is a far off
place), on which proposal the department prepared a note to give four directions
to PMC which have been referred earlier.
Under that proposal,
Lohegaon land was to be exchanged for the concerned F.P. No. 110 which was to
be released by invoking DC Rule 13.5, and the landowner was to return to PMC
the amount of compensation received. This note was approved by the Chief Minister
on 21.8.1996 and accordingly a direction was given to the Municipal
Commissioner on 3.9.1996 to accept the proposal of the developer and issue the
development permission for F.P. No. 110.(j) The Senior Law Officer of the PMC recorded
an objection that such permission will require the approval of the general body
of the Municipal 91Corporation, but the Municipal Commissioner overruled him on
21.9.1996, in view of the direction of the government to act under DC Rule 13.5
as stated above, and ignored the mandatory provision of Section 37 of MRTP Act.
(k) Thereafter the commencement
certificates have been issued on 28.11.1996, and an occupation certificate for
the tenants' building was also given on 20.12.1997. (l) At this stage, the land
developer Shri Girish Vyas had written on 15.7.1998 to PMC on learning that
according to PMC the Lohegaon land was not suitable for a school. He offered to
handover another parcel of land in a residential zone at Mundhwa (which is also
a far off place), and to deposit whatever amount that was required for the
construction of a school of 500 sq. feet area at Mundhwa or elsewhere, but the Completion
Certificate for the building for the other occupants of F.P. No. 110 (named as
Sun-Dew Apartment) be issued. (m) There is a clear office note dated 22.7.1998
on record which shows that there was already a criticism of this matter in the
newspapers and in the General Body of PMC, that one educational amenity in that
area was being destroyed.
The note recorded that
Sr. Chief Secretary of Chief Minister had issued instructions, to put up a self-explanatory
note for the perusal of the Chief Minister, to enable him to answer the
probable questions in the assembly. This note dated 22.7.1998 was specifically
marked for the Chief Minister. 92(n) The Principal Secretary UDD had opined on
24.7.1998 that resort to DC Rule 13.5 will not be legal, and an action be taken
under Section 37 of MRTP Act. Yet, in view of the favourable indication of the Municipal
Commissioner in his letter dated 17.4.1996, a note was prepared on 27.7.1998 to
continue to maintain the decision under DC Rule 13.5. (o) When Shri Girish Vyas
had entered into the picture through his above referred letter, the Additional Chief
Secretary made a note that since the developer is related to the Chief
Minister, the Minister of State may take proper decision as per the rules.
It is only because of
this note that the Minister of State had signed the papers approving the proposal
of the department, and directing that the necessary orders be issued to the PMC.
Accordingly, the Deputy Secretary of UDD issued the consequent letter dated
29.7.1998 to the Municipal Commissioner, permitting him to accept the land at Mundhwa
or elsewhere, as well as the amount to construct a school building of 500 sq.
feet, and to issue the occupancy certificate for the Sundew Apartments. (p) Thus
it has got to be inferred that not only the then Chief Minister was fully aware
about this matter right from April 1996, until the last direction of UDD dated
29.7.1998, but was associated with the decision making process and the
directions issued all throughout.
101.
The
events in this matter disclose that although the officers of UDD and the PMC
initially took the clear stand opposing the proposal on behalf of the landowner
to put up a residential building in place of a Primary School, the 93Minister of
State for Urban Development asked the Municipal Commissioner to personally carry
out a survey of the property, on the ground that two schools had come up in the
near vicinity, ignoring the fact that they had so come up as per the provision
in the D.P. Plan itself. Thereafter when it was pointed out that the permission
of the general body of the Municipal Corporation will be required for the
modification, that submission was by-passed. The provision of DC Rule 13.5 requiring
alternate land to be provided for the same purpose within 200 meters was also
given a go-bye, and this rule was utilized to accept the proposal to shift the school
to a very far off place.
The mandatory provision
for modification under Section 37 of the MRTP Act was totally ignored. Ultimately
only an amount for constructing a school building elsewhere and the land
therefor was offered to the Municipal Corporation, for getting a reserved plot
of land in a prime area of the city released from a public amenity. Last but
not the least, the Municipal Corporation was instructed to withdraw the First Appeal
which it had filed to challenge the decision of the District Court in favour of
the landowner in the matter of acquisition.
102.
It
is material to note that after the Municipal Commissioner sent his report dated
17.4.1996, the Private Secretary to the then Chief Minister Shri Manohar Joshi had
called for the file for his perusal. After all necessary directions were decided,
the Chief Minister placed on record his approval on 21.8.1996 with an apparently
innocent remark `All actions be taken in accordance with law', though he did
not forget to record "No objection".
Thus, the decision of
the Government dated 3.9.1996 to shift the reservation of a primary school from
F.P. 110 under D.C. Rule 13.5 was under his order dated 21.8.1996. Subsequently,
when his son-in-law Shri Girish Vyas wrote the letter dated 15.7.1998 that
money be received for constructing a school somewhere else, it became obvious on
the record that the son-in-law of the then Chief Minister was behind the
project.
At that stage also
the Chief Minister had to be pointed out by the Addl. Chief Secretary that the
developer is related to him, and therefore, the necessary decision may not be
taken by him, but by the Minister of State. Therefore, the file went to the Minister
of State for UDD on whose direction the last necessary letter has been sent to
PMC by the Deputy Secretary UDD on 29.7.1998. However this subsequent decision
is in continuation to the initial decision of the Chief Minister dated 21.8.1996,
and therefore the responsibility for the clearance of this disputed
construction squarely lies on his shoulders. A brief summary
103.
This
is not a case where the landowner or his developer have approached the
appropriate authority on the basis of their allegedly subsisting rights under
the erstwhile T.P. scheme contending that setting up of a primary school on
that plot contrary thereto would be affecting their right to develop the property
and is therefore illegal. It is also not a case where they have approached the appropriate
authority pointing out that there are sufficient number of schools in the near vicinity
with supporting information and, therefore, sought deletion of reservation on
the concerned plot. This is a case where the landowner never raised either of
the two pleas to begin with.
He was conscious of
the fact that the land was reserved for a public garden in the 1966 D.P. Plan and,
therefore, gave a purchase notice in May, 1979 which was confirmed by the State
Government in December, 1979. When the D.P. Plan was revised during 1982-1987, he
never raised any of the above two submissions. He did not even challenge the subsequent
reservation for a primary school finalized in 1987. Only in 1995 when Shri
Manohar Joshi became the Chief Minister, he appointed his son-in-law as a
developer and another power of attorney Shri Karandikar to approach the
Ministers directly.
He pointed out that
two schools had come up on the adjoining plots (which was in fact as per the
D.P. Plan itself), and the Minister used this information to get a report from
the Municipal Commissioner who suppressed the fact that applications for this
very plot from two educational institutions were pending with PMC. Then also
the order of deletion was not passed either under Section 37 (leave aside
Section 22A), or Section 50 of the Act which was invoked for the first time in
this Court (and which otherwise also could not be applied). The order of deletion
was passed under D.C. Rule 13.5 which had no application.
104.
The
effect of what has been done is this: that a landowner accepts compensation for
his land when acquisition proceedings are initiated at his instance. The
landowner does not challenge either the acquisition proceedings or the amount of
compensation, but in fact collects the amount. When the tenants challenge the
acquisition, the land owner joins the same subsequently. When the award is set
aside by the civil court, and the Municipal Corporation files the appeal, the
landowner approaches a close relative of the Chief Minister, 96who happens to be
a property developer.
The development permission
is granted by-passing the objections of the concerned department of the
Government and the Municipal Corporation, and flouting all relevant provisions
of law. The Municipal Corporation is asked to withdraw the appeal against the
judgment holding that acquisition has lapsed. When the actions are challenged
in a public interest litigation, the landowner contends that he had a
subsisting right under the erstwhile T.P. Scheme, in spite of a subsequent reservation
for a public amenity in the D.P. Plan holding the field, and that the construction
is permissible though its legality cannot be traced to any provision of law.
105.
Present
case is not one where permission was sought for the construction under
erstwhile T.P. scheme, or under Section 50 of the MRTP Act. This is a case
where the personal relationship of the developer with the Chief Minister was apparently
used to obtain permission for construction without following any due process of
law. This is a case of rules and procedures being circumvented to benefit a
close relative of the Chief Minister.
It is a clear case of
mala fide exercise of the powers and, therefore, the High Court was perfectly
justified in canceling the development permission which was granted by the
State Government. The development permission could not be defended either under
Rule 6.6.2.2 or under Section 50. The MRTP Act requires a valid development permission
under chapter IV of the act, and in the instant case there is none. Consequently,
the construction put up on the basis of such permission had to be held to be
illegal. In the circumstances, we uphold the judgment of the Division Bench as
fully justified in law and in the facts of the case. Impugned Order passed by
the Division Bench
106.
(i)
As seen above, the Division Bench in the impugned judgment came to the conclusion
that the disputed construction by the developer was totally illegal, and also
concluded that there was nothing wrong with the acquisition of F.P. No.110. Having
held so, it passed the impugned order which can be split into two parts. The
first part of the order is arising out of the determination concerning the
legality of the construction, and it can be seen in sub-paragraphs (a) to (d) of
para 227 of the judgment.
The order pertaining to
costs is connected with this part and it is in sub-paragraph (f). The second
part of the order is regarding appropriate criminal investigation which is in sub-paragraph
(e). (ii) In the first part of its order the Division Bench directed:- (a) the
cancellation of the commencement certificate dated 20.8.1996, 3.5.1997 and 3.7.1998,
and occupation certificate dated 20.12.1997, (b) the PMC and its Commissioner
to call upon the landowner and the developer to restore F.P. No.110 to the
position prior to the date of the earliest of the commencement certificates,
failing which these authorities will take action to demolish the disputed construction,
and collect the cost of such action from the landowner and the developer, 98 (c)
the PMC to move an application for restoration of First Appeal (stamp no.18615
of 1994), and (d) rejected the prayer to revive first appeal without the
demolition of the structure. (f) the Division Bench directed payment of cost of
Rs. 10,000/- each by the State of Maharashtra, the PMC, the then Chief
Minister, the then Minister of State, the developer and the Municipal Commissioner
to the petitioners.
107.
In
view of the gross illegality in the order of the State Government and PMC in granting
the development permission, the direction (a) for cancellation of Commencement
Certificates and Occupation Certificate had to be issued and the same can not
be faulted. As far as the direction (c) is concerned, it was noted by the High Court
that the PMC had been forced by the State Government to apply for withdrawal of
its First Appeal so that the judgment of the Civil Court remains undisturbed. Since
the High Court came to the conclusion that there were nothing illegal about the
acquisition, the First Appeal had to be restored. The direction is therefore
fully justified. We may note that PMC has already filed an application for
restoration of the First Appeal. Direction to demolish the disputed building,
and rejection of the objection based on alleged delay and laches
108.
The
direction (b) in the impugned order was issued basically on two grounds. Firstly,
the development permission had no legal validity whatsoever, and secondly it
was clearly a case of showing favouritism by going out of the way and circumventing
the law. Besides, since the challenge to acquisition was being rejected, it
would not have been proper to postpone the demolition of the disputed
construction on the ground of pendency of the First Appeal, since the construction
was absolutely illegal. Hence, the High Court issued direction (d) as above.
109.
The
demolition was objected to by the appellants amongst others on the ground that
there was delay and laches in moving the petitions to the High Court. It was submitted
that if the petitioners were vigilant, they could have seen the building coming
up from November 1996 onwards, but the petitions have been filed only in August
1998. According to them by the time the petitions were filed, the tenants' wing
was complete, and even the other wing of Sundew Apartments was nearing
completion
The Division Bench
has rejected this submission in paragraph 220 of its judgment by observing that
merely because a construction is coming up, a citizen cannot assume that it is
illegal or that the developer had obtained the construction permission in a
manner contrary to law. Besides, when the petitioner in Writ Petition No. 4434 of
1998 (who is a Corporator) sought the information about the construction, he
was informed by PMC that the same could not be made available under the
relevant rules, though no such rules were shown to the Division Bench.
The High Court has on
the other hand noted that as a matter of fact even the construction of the
building meant for the tenants was actually said to have commenced in March
1997 only. Hence, in the facts of the present case it could not be said that
the writ petitions suffered on account of delay or laches, and therefore the
High Court was right in rejecting that contention.
110.
With
respect to the direction for demolition, we may note that similar direction was
given way back in the case of Pratibha Cooperative Housing Society Vs. State of
Maharashtra reported in 1991 (3) SCC 341. The appellant society situated in a
prime area in Mumbai had added eight upper floors in excess of the F.S.I.
permissible, and the Municipal Corporation directed removal of those floors. The
petitioner society challenged the order of the Municipal Corporation.
A Division Bench of
the Bombay High Court dismissed the Writ Petition, but permitted the society to
give proposals to reduce the area of construction upto the permissible limit. During
the pendency of the appeal from the judgment of the High Court, the proposal of
the society was examined by the Municipal Corporation and was found
unacceptable. While dismissing the appeal, this Court noted in the aforesaid
judgment that `the tendency of raising unlawful construction by the builders in
violation of the rules and regulations of the Corporation was rampant' in the
city of Mumbai.
Thereafter it
observed in para 6 of the judgment:- "We are also of the view that the tendency
of raising unlawful construction and unauthorised encroachments is increasing
in the entire country and such activities are required to be dealt with by firm
hands. Having noted so it upheld the demolition of the upper eight floors and
further observed in the last para of the judgment ` "Before parting with the
case we would like to observe that this case should be a pointer to all the
builders that making 10 of unauthorised constructions never pays and is against
the interest of the society."
111.
The
observations of the Court however, have had no effect. In M.I Builders Pvt.
Ltd. Vs. Radhey Shyam Sahu & Ors. reported in 1999 (6) SCC 464, the issue
was with respect to the retention of a public amenity viz. a park in a congested
area of city of Lucknow. The park was of historical importance and also an
environmental necessity. The Lucknow Mahapalika had permitted the appellant builder
to put up a shopping complex and a parking facility thereon. The appellant was
permitted to do so without calling any bids and for hardly any monetary gain to
the Municipal Corporation.
This was also a case
where the construction was on the basis of an agreement with the builder which
agreement amounted to a fraud on the powers of the Mahapalika, and a clear case
of favouritism, as in the present case. This Court dismissed the appeal and
directed the demolition of the disputed construction and observed as follows in
para 73 of its judgment:- "73. ....... This Court in numerous decisions
has held that no consideration should be shown to the builder or any other person
where construction is unauthorised.
This dicta is now
almost bordering the rule of law. Stress was laid by the appellant and the prospective
allottees of the shops to exercise judicial discretion in moulding the relief. Such
a discretion cannot be exercised which encourages illegality or perpetuates an
illegality. Unauthorised construction, if it is illegal and cannot be
compounded, has to be demolished. There is no way out. Judicial discretion cannot
be guided by expediency. Courts are not free from statutory fetters. Justice is
to be rendered in accordance with law......" (emphasis supplied)
112.
In
the present case, one would have thought of retaining the building and utilising
it for a school. The PMC had shown its willingness to consider such a proposal.
But the developer wanted to retain half of the flats of this ten storey
building which would have been contrary to the provision in the Development Plan,
and hence the proposal fell through. That apart, such a compounding would have
been contrary to the above dicta in M.I Builders case (supra). There is no
redeeming feature whatsoever in the present case. It is clearly a case of
misuse of one's position for the benefit of a relative leading to an action which
is nothing short of fraud on one's power and also on the statute. There is no reason
for us to interfere in the order passed by the High Court directing the
demolition of the disputed buildings.
113.
The
building constructed for the tenants is meant for accommodating them, and it
has been stated on behalf of the developer that he is not interested in
dis-housing them. The learned senior counsel for PMC Shri R.P. Bhat has also stated
on instructions, that PMC has no objection to the retention of the building constructed
for the erstwhile occupants of the plot, however these occupants will now have
to continue in that building as tenants of PMC. As far as these occupants are
concerned, their status at the highest was that of tenants of the landowner.
They claim to have
been residing on this plot for over fifty years, and appear to be belonging to
economically weaker section of the society. Their only request during the
acquisition proceedings was that they should be accommodated on this very plot
of land. It is another matter that in the High Court and in this Court they supported
the landowner and the developer, in view of the promise given to them that in
the event the landowner and the developer succeed, the tenants will get
ownership rights. Now that the plea of the landowner and the developer is
rejected, the best that can happen to these occupants is to get the tenancy
rights on this very plot of land.
That apart, in view
of their long stay on this plot, they had to be rehabilitated. The offer of PMC
to accommodate them on the very plot of land is more than fair, and deserves
acceptance. Since, the tenants were already in possession of a part of the plot
for residential purpose, they are being continued to remain on that plot for
that very purpose. In that event, the tenants may not be entitled to receive
any monetary compensation since this offer is as per their original demand and
it very much compensates them. However, since the amount of compensation awarded
to them was too meagre, if they have collected it, they need not return the
same to PMC. This being the position, in our view, the main operative order
passed by the High Court needs to be modified appropriately. In the
circumstances, we modify and restrict the operative order of demolition only to
the extent it directs the removal / demolition of the building meant for the
persons other than these tenants (i.e. the ten storey building named as Sundew Apartments).
114.
We
may as well mention at this stage that as far as this building viz. Sundew Apartments
is concerned, no one, except a bank had come forward to claim any third party
rights, or prejudice on account of the order of demolition passed by the High
Court in spite of the well publicised litigation of this matter. The concerned
bank had advanced a loan to the developer against the security 10of two flats
in that building, and it intervened only at the last stage of passing of the order.
The Division Bench has rightly rejected the claim of the bank in paragraphs 224
to 226 of its judgment by observing that the court could not accept the
contention of the bank that it was not aware of the illegality on the part of the
developer.
The court did not accept
the bank's plea of innocently advancing the money, since the mortgage was
executed on 13.8.1998, whereas the allegations concerning the illegality of
this transaction had appeared in the newspapers right from March 1998. The bank
should have considered the matter in depth before advancing the loan. In any
case the demolition will only extinguish its security though its claim against
the developer may remain. Adverse remarks, and the direction for criminal
investigation
115.
The
second part of the operative order in the impugned judgment was based on the
adverse inferences drawn by the Division Bench against the then Chief Minister,
the Minister of State and the Municipal Commissioner. The petitioners had
infact sought a prosecution against all of them. However, after considering the
facts and circumstances of the case the court was not inclined to grant that
relief, without appropriate prior investigation.
Therefore, with
respect to this prayer the Court passed an order which is contained in
paragraph 227 (e) in two parts as follows: (i) to direct the State of Maharashtra
to make appropriate investigation against the then Chief Minister, the Minister
of State and the Municipal Commissioner by an impartial agency, and 10(ii) if satisfied
that any criminal offences have been committed by the aforesaid respondents in
the discharge of their duties, to take such action as is warranted in law.
These three
appellants have therefore made two fold prayers viz. expunging the adverse observations,
and setting aside the direction for appropriate investigation to be followed by
such action as is warranted in law. Adverse remarks by the Division Bench against
the Municipal Commissioner, Minister of State and the then Chief Minister:- Adverse
remarks against the Municipal Commissioner
116.
Apart
from other allegations, it has been specifically alleged in Writ Petition 4434
of 1998 that the then Municipal Commissioner "wilted under the pressure of
the Chief Minister.....", "acted in flagrant disregard to the
provisions of the law", and "with a view to favour his son-in-law Shri
Girish Vyas acted illegally and mala fide". As we have seen from the
notings on the file, initially he did take a stand which could be said to be as
per the record, and in consonance with law.
In his affidavit before
the High Court, he took the stand that he acted under the directions of the Minister,
and hence, he should not be blamed for the ultimate decision. Shri Narshima,
learned senior counsel appearing for him drew our attention to the Maharashtra Government
Rules of Business framed under Article 166 of the Constitution in this behalf. He
also tried to defend the Commissioner's action by invoking Section 154 of the
MRTP Act which lays down amongst others that the Planning Authority has to carry
out the directions and instructions of the State Government for the efficient 10administration
of the act. The Division Bench declined to accept this explanation. We have
already dealt with this submission and recorded our reasons as to why we also
cannot accept this reliance on Section 154.
117.
(i)
It was submitted on behalf of the Commissioner that he brought the correct
legal position to the notice of the Minister of State to begin with, but
ultimately had to give up due to the instructions from the Minister of State,
meaning thereby that he cannot be blamed since he was acting under the
directions of his superiors. Reliance was placed in this behalf on the
proposition in paragraph 16 of Tarlochan Das Vs. State of Punjab & Ors reported
in 2001 (6) SCC 260 to the following effect:-
"No government servant
shall in the performance of his official duties, or in the exercise of power
conferred on him, act otherwise than in his best judgment except when he is acting
under the direction of his official superior."(ii) This defence cannot
help him much if we see his actions atleast on two occasions. Firstly, when he
made his report dated 17.4.1996 to the Minister of State, he overlooked the
fact that the reservation on this plot was for a primary school, and not merely
for a municipal primary school. As has been noted by the Division Bench, two
private schools had already come up on the adjoining plots as per the D.P. provision
itself. Besides, two renowned educational institutions had applied way back for
this plot of land for running of schools thereon.
The Commissioner did not
place this very vital information before the Minister of State in his report. On
the other hand he stated that Prabhat Road being a higher middle class area, a
municipal school may not get adequate students. The Division Bench has
therefore, observed in paragraph 143 of its judgment, that 10his report was
"far from truth". Secondly, he bypassed the general body of the
Municipal Corporation in the matter of deleting the reservation on F.P. No. 110
inspite of being aware of the correct legal position, and his attention having
been specifically drawn thereto by the senior law officer of PMC.
118.
Both
these acts on the part of the Municipal Commissioner clearly amounted to failure
on his part to discharge his duty correctly for which he cannot blame anybody
else. This is the least that is got to be stated about his conduct by this
Court. The Division Bench has commented that he acted "as a loyal soldier
perhaps more loyal to the king than king himself", which was "with a
view to please his bosses".
It is true that in the
first meeting called by the Minister of State for UDD, it was pointed out on
behalf of PMC that the land had been acquired. The Commissioner had also
pointed out that if the reservation was to be reduced or to be deleted, the
permission of the Municipal Corporation will have to be obtained. His report of
17.4.1996, cannot however be said to be fully satisfactory and he failed in his
duty when he permitted the by-passing of the Municipal Corporation in the
matter of deletion of reservation on F.P. No.110, which he claims to have done
in view of the direction from the Chief Minister under the D.C. Rules. We can
say that a high ranking IAS Officer was expected to show his mettle, and he
failed to come up to the expectations, but noticing that he had no personal interest
in the matter, and he was acting under the directions of his superior, the Division
Bench could have avoided making the particular remarks against him. The conduct
of the Minister of State
119.
In
paragraph 3 of Writ Petition 4434 of 1998, there is a specific allegation
against the then Minister of State as well as the then Chief Minister of "the
blatant misuse of executive powers", "with a sole objective of
ensuring a substantial monetary benefit for M/s Vyas Constructions. The defence
of the Minister of State was that he tried to find out a workable solution, and
acted on the advice of the officers of his department. As we have seen from the
notings and as observed by the Division Bench that initially the Minister of
State was also of the view that Section 37 of the MRTP Act should be followed.
In this connection,
it is relevant to note that after receiving the letter dated 17.4.1996 from the
Municipal Commissioner, the UDD department prepared its note in which it
specifically recommended that only half the area of the concerned plot be
released to the landowner, and that he should accommodate the tenants in his development
of the property on that portion of land, and an action under Section 37 be
taken for that purpose. Thus, the departmental note was in fact as per the
initial stand taken by the Minister of State, yet strangely enough, he declined
to approve the note. He contended in his affidavit before the High Court that
he was persuaded to accept the suggestion to act under the D.C. Rule 13.5 under
which a similar action had been taken in Kothrud, Pune. No particulars of that
Kothrud precedent were however, placed before the Court.
120.
The
Minister of State also tried to contend that until the last he had no knowledge
of Shri Murudkar's connection with the son-in-law of Chief Minister. In view of
the facts which have emerged on the record, it was just not possible to accept
this contention. The Division Bench has given its reasons for 10the same and
has commented on his conduct as follows at the end of paragraph 140:- ".......It
is difficult to account for the anxiety of the Minister of State, UDD, to find
out some solution to either reduce the area of reservation or shift it to a new
place. Only tenable explanation is that it was a design to ensure that the representation
made by Murudkar on November 20, 1995 was allowed. It is not being suggested by
any one that respondent No.6 was personally interested in the proposal or that
he had any particular interest in seeing that this proposal was sanctioned. We,
therefore, have to fall back on the inference that respondent No.6 was under pressure
from respondent No.5."
121.
In
this behalf it is relevant to note the conduct of the Minister of State from
stage to stage. (i) Firstly, he entertained the application of Shri Karandikar directly
at his own level, and thereafter immediately called a meeting of high ranking
officers to take a decision thereon. Would such other applications receive such
a direct and expeditious attention? (ii) Secondly, he directed the Municipal Commissioner,
a very high ranking officer, to carry out a personal inspection and to make a
report. Would he issue such directions in the case of other similar
applications? (iii) Thirdly, after the Commissioner's report, the UDD
department supported the initial view of the Minister of State that only a part
of F.P.No. 110 be released, and that too under Section 37.
Why did he not
approve that note?(iv) He acted as if he was waiting for the Commissioner to state
that two schools had come up in the adjoining plots, so that he can release
F.P. No. 110 from the reservation for a Primary school. Did he not realise that
those schools had come up as per the Development plan itself? 11(v) He relied upon
an alleged precedent of release of the land at Kothrud under D.C. Rule 13.5
without having the particulars thereof on record.
(vi) He tried to put the
blame on the Municipal Commissioner and the Municipal Officers for the decision
arrived at. It is true that the Commissioner failed in his duties to place full
facts on record. At the same time the fact that the Minister of State ignored
the initial notes of his own department and of PMC, which were in accordance
with law, and went on acting and instructing as per the suggestions of Shri
Karandikar, which led to the convenient reports cannot be lost sight of. He
acted clearly against the provisions of law though he was fully informed about
the same.
Would he have acted
in such a manner on any other similar application? (vii) Would he not be aware
that the file was called by the Chief Minister after receiving the report from
the Municipal Commissioner, and for what purpose? The natural inference which flows
from all this conduct is that right from the beginning, the Minister of State was
aware about Shri Murudkar's connection with the son-in-law of Chief Minister,
and therefore he acted for the benefit of the developer, obviously at the
instance of the then Chief Minister as inferred by the Division Bench. We have
no reason to disagree. Observations against the Chief Minister
122.
(i)
The two Writ Petitions contain serious allegations against the then Chief
Minister at various places. Thus in paragraph 2 of the Writ Petition 4433 of
1998, it is alleged that the then Chief Minister misused his executive powers
and 11authority for the purpose of securing benefits for his near relatives, and
in paragraph 3 it is specifically stated that this was for ensuring a substantial
monetary benefit for M/s Vyas Constructions. A specific averment in paragraph 2
in this behalf is as follows:-
"It is the claim
of the petitioner that on account of this close relationship, the executive powers
vested in the State of Maharashtra have either been misused and/or actions which
cannot be taken in exercise of the executive powers under the Act are
presumably take in purported exercise of such executive powers with a full
knowledge that the actions are illegal and ultra vires the provisions of the
Act."(ii) As we have noted earlier, on 24.4.1996 the initial report made by
the Municipal Commissioner dated 17.4.1996 was called for the perusal of the
then Chief Minister. The basic order dated 21.8.1996 granting no objection,
thereby approval to the release of the reservation on F.P. No. 110 was that of
the then Chief Minister. The disputed permission dated 3.9.1996 was issued in
pursuance thereto.
There is a note dated
22.7.1998 on record which was meant for the perusal of the then Chief Minister to
enable him to answer the probable questions concerning this matter in the
assembly. The last order proposed at the Government level was also brought to
his notice, and he was going to sign it, but for the advice of the Additional Chief
Secretary that since his son-in-law had written a letter by that time to the Commissioner,
the papers be sent for the signature of the Minister of State. Thus it is quite
clear that he was aware about the developments in the matter, and the orders therein
were issued with his approval and knowledge. He cannot therefore, escape the
responsibility for all the illegal actions in this matter. 11(iii) The learned
senior counsel for the then Chief Minister Shri Shyam Diwan objected to the
language used in paragraphs 111 and 131 of the judgment which accused him of "pettifogging
or obfuscation of facts".
It is stated in the
judgment that the then Chief Minister "furtively" sought a copy of the
report dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared
by his private secretary to the Minister of State for Urban Development calling
for the file for the then Chief Minister's perusal. It was submitted that there
was no need for the then Chief Minister to act secretively. In our view, there
is no use in taking umbrage behind the language used by the Court. The question
is whether the inference that the Chief Minister had called for the file for his
perusal can be disputed. A private secretary will not make such a note unless
the file is required by the Chief Minister. In our view the inference was fully
justified. It was also sought to be contended that the petitions were
politically motivated and one of the petitioners did not have clean
antecedents.
We are concerned in the
present case with respect to serious allegations against the then Chief
Minister misusing his office for the benefit of his son-in-law and in that
process destroying a public amenity in the nature of a primary school. Such
submissions cannot take away the seriousness of the charge, and the Chief Minister
must squarely explain and justify his actions.
123.
(i)
With respect to the Chief Minister calling the file for his perusal, the
Division Bench has posed a question as to whether it was an idle curiosity.
"Why were the Chief Minister and the Minister of State interested in one particular
case? What momentous public policy decision was sought to be taken in this 11matter?"
Shri Murudkar was not someone for whom the administration could have moved so
fast. It was very clear that the Chief Minister was very much interested in knowing
the progress of the case all throughout.
The obvious inference
was that the then Chief Minister and the Minister of State took keen interest
in the matter only because Shri Murudkar had appointed the son-in-law of the
Chief Minister as his developer.(ii) The Division Bench has dealt with the
affidavit of the then Chief Minister, some of the relevant events in this
behalf and then held that the conduct of the then Chief Minister definitely leads
to the conclusion that he was very much interested in knowing the progress of
the case pertaining to F.P. No.110, and he wanted to apprise himself of report
dated 17.4.1996 made by the Commissioner of PMC. Therefore, the Division Bench
held at the end of para 131 as follows:- "We are afraid, unless the Court is
naove and its credulousness is stretched to the extreme, the inference has to be
that, not only was there an attempt on the part of respondent No.5 to `concern'
himself with the file even prior to August 1996, but also that respondent No.5
had taken an active interest in the case."
124.
(i)
Then we come to the merits of the disputed permission dated 3.9.1996 which was in
pursuance to the order of the Chief Minister dated 21.8.1996 viz. "All
actions be taken in accordance with law. No objection". It was sought to be
contended on his behalf that he had clearly stated that all actions be taken in
accordance with law. But we cannot ignore that he had simultaneously stated in his
remarks of approval, "no objection" to the note containing the
proposal which had been put up before him, and which was not in 11accordance
with law.
The note clearly
stated that the reservation on the land at Lohegaon be shifted from
agricultural zone to residential zone by following the procedure under Section 37
of the MRTP Act. But as far as shifting of reservation from F.P. No. 110 was
concerned, a different yardstick, namely that of D.C. Rule 13.5 was applied for
which there was no explanation whatsoever. Thus he gave no objection to an
illegal proposal as proposed in the note, and directed that all actions be
taken in accordance with law which will only mean that the proposal be somehow
fitted in four corners of law. (ii) The letter dated 17.4.1996 from the
Municipal Commissioner had already been forwarded for his perusal.
This report had
clearly stated to begin with that the departmental permission had been rejected
because the property was under reservation. The report of the Municipal
Commissioner also stated that in case the change was proposed in the use of the
property, permission had to be taken from the Pune Municipal Corporation. Could
not the Chief Minister understand that D.C. Rule 13.5 could not be applied to
F.P. No.110 in the manner in which it was suggested? Could he not understand that
the permission of Municipal Corporation was required as per the law? In the
teeth of these legal provisions he gave no objection to the proposal to shift the
reservation of F.P. No. 110 under D.C. Rule 13.5, and to shift the reservation
of the plot at Lohegaon under D.C. Rule 37. In between there is a noting of
22.7.1998 which recorded that the Chief Minister had to be briefed about this matter
appropriately for him to answer the questions in the legislative assembly.
The note has also
recorded that there was a criticism about this matter in the local newspaper. Subsequently,
thereafter when the land at Mundhwa or elsewhere was sought to be exchanged in
place of Lohegaon, the letter of Shri Girish Vyas was already on the file of the
PMC and the Government. Still he was going to sign note of approval but for the
advice of the Additional Chief Secretary. This shows the keen interest of the then
Chief Minister in the matter and it can certainly be inferred that he was so
acting for the benefit of his son-in-law.
125.
According
to Shri Naphade, the learned counsel appearing for the developer, the inference
of mala fides is misconceived, as it is contrary to the material on record. He submitted
that the Municipal Commissioner's report dated 17.4.1996 was not found to be untrue
or false by any authority.
He emphasized that as
per the report (i) There are about 36 structures on the land which are occupied
by tenants; (ii) Half the area of the plot is encumbered; (iii) There are two educational
institutions in the vicinity of the plot and 11 educational institutions in the
area; (iv) The acquisition of the plot has been declared illegal by the Court;
(v) The locality in question is inhabited by higher middle class people and
there may not be an appropriate response to a Primary School; (vi) Considering the
funds available the Pune Municipal Corporation is inclined to develop school on
some other plot reserved for school.
He defended the
decision of the then State Government and the actions taken in pursuance
thereof by submitting that (i) There is no detriment to Public Interest, as no
Municipal Primary School was required in the locality. (ii) The Appellant made alternative
plot available at his own cost in the locality where a Municipal Primary School
was required. (iii) The developer paid a sum of Rs. 25 lakhs to the PMC for
construction of Municipal Primary School wherever it wanted to put it up. (iv) Tenants
occupying dilapidated structures were rehabilitated on the very plot and were
to get the ownership right free of cost.
126.
These
arguments are based on an erroneous premise that the plot was reserved for a Municipal
Primary school. It was reserved for a Primary school and not merely a Municipal
Primary school. It is on this false premise that the Commissioner had opined that
this being a higher middle class area, a Municipal Primary school may not get an
appropriate response. The two adjoining plots were also reserved for Primary
schools as per the D.P. plan, and thereon two private schools had already come
up. That cannot be a ground to say that this plot be released from reservation.
The Municipal Commissioner had failed to place on record a very material information
that one renowned educational institution had sought this very plot for educational
activities way back in 1986.
The Municipal Commissioner
had not specified as to what he meant by the particular area when he stated
that eleven educational institutions had come up therein. The plot had been
reserved for a Primary school after an elaborate planning process wherein the
requirements of the particular area are appropriately considered. This is not
the first case where there would be three adjoining plots reserved for Primary
schools. There are many such schools and educational complexes which always
require adjoining plots and are developed accordingly. The submission that the
acquisition had been declared illegal by the Court was also a very convenient
submission ignoring that the Municipal Appeal therefrom was pending in the High
Court.
There was no reason for
the Corporation to be deterred by the encumbrances on the plot, since the
compensation therefor had already been arrived at as per the law, and it did
not cast much burden on the Corporation. The report of the Municipal
Commissioner was clearly made "to please the bosses" as observed by
the Division Bench, and could not be accepted as the basis for a valid legal
action. The acceptance of the offer of the developer would mean that whenever
anybody wants to delete a reservation of a public amenity in a prime area, he
can throw the money to the Municipal Corporation and say that let the amenity
come up elsewhere, but the reservation be deleted. Such an approach will mean
destruction of the entire planning process and deserves to be rejected. None of
these arguments can whitewash the material on the record which clearly leads to
the inference, that the impugned actions were motivated to benefit the son-in-law
of then Chief Minister.
127.
(i)
The learned counsel for the then Chief Minister objected to the inference drawn
by the Division Bench that the then Chief Minister had pressurized the officers
into taking an illegal action. It was submitted that the notings on the file
indicated that there were deliberations on issues involved in the matter at the
government level on a number of occasions. The course of action suggested in the
PMC note dated 26.7.1996 was approved at several levels of authority before the
same coming to the then Chief Minister. The Deputy Secretary in the UDD Shri Vidyadhar
Despande has also stated in his affidavit that there was no pressure from the
office of the Chief Minister or for himself.
That apart there were
cogent factors explaining why there was no need for yet another primary school
in the locality and generally the thinking was that public interest would gain
from the proposed course of action. (ii) As far as this latter submission about
there being no need of one more primary school, one may immediately note the
scant respect that the then Chief Minister had for the cause of education and
the method of planning. One fails to see as to what public interest was going
to be achieved by preventing a primary school from coming up on a designated
plot.
There is no use
stating that instead a primary school will come up in another area. It will of
course come up in that area if it is so required. But there is no need to
tinker with a school in another area, provided by a proper planning process. (iii)
We have already noted the manner in which the matter had been handled. The
application of the developer was entertained directly at the level of the
Minister of State. Immediately a meeting of high ranking officers was called.
Inspite of a clear stand taken by the offices of UDD as well as by PMC, the
Minister of State asked the Commissioner, a high ranking officer to make a
personal site inspection and then a report, only because the developer
submitted that two schools had come up on the adjoining plots. Was it not clear
to the Minister of State that those two schools had come up as per the
provisions of the D.P. plan?
The Municipal
Commissioner in his report, and thereafter the officers of the UDD, initially
submitted that if deletion of reservation was to be resorted, the action will have
to be initiated under Section 37 of the Act. It is only because of the
insistence of the developer that the resort to D.C. Rule 13.5 was adopted. During
the course of all these developments the file had been called by 11the
Secretary to the Chief Minister. Were these not clear signals to the officers
as to what was the interest of the then Chief Minister? There will never be any
direct evidence of the officers being pressurized, nor will they say that they
were so pressurized. Ultimately one has to draw the inference from the course of
events, the manner in which the officers have acted and changed their stand to
suit the developer and the fact that the son-in-law of the then Chief Minister
was the developer of the project.
As we have noted earlier
the affidavit of the Commissioner clearly indicated that he tried to place the
correct legal position initially but ultimately had to give in from the pressure
from the superiors. Unless one is naove one will have to agree with the
conclusion which the Division Bench had drawn in para 136 of its judgment to
the following effect:- "We are left with only one conclusion which we have
to draw from the facts on record and, to quote the words of the petitioners,
"the conduct of respondent No.5 itself indicates that he had `pressurized'
the officials into taking an illegal action" and this, in our view, is
certainly misuse of executive powers."
128.
The
learned senior counsel who had appeared for the then Chief Minister in the High
Court had relied upon amongst others on the judgment of this Court in E.P.
Royappa vs. State of Tamil Nadu [AIR 1974 SC 555] . Krishna Iyer J. had
observed in paragraph 92 of his judgment in that matter that "we must not also
overlook that the burden of establishing mala fides is very heavy on the person
who alleges it. The allegations of mala fides are often more easily made than
proved, and the very seriousness of such allegations demands proof of a high
order of credibility." Shri Royappa, while challenging his transfer had made
allegations of mala fides against the then Chief Minister of Tamil Nadu, and
this Court had refused to accept those allegations.
The Division Bench 12noted
in the presently impunged judgment that Shri Royappa was a Chief Secretary, and
hardly any Chief Secretary of a State Government was known who would be in any way
hamstrung, or stopped from getting information or documents on the basis of
which he makes out the case of mala fides against the officer holding a public office.
The Division Bench rightly observed at the end of para 129 as follows:- "We
do agree with Mr. Salve that a finding of mala fides against public authority,
that too of the rank of Chief Minister of the State, should not be lightly drawn.
It is quite a serious matter. But, if the Court is required to draw such an
inference after examining the record, we feel that the Court cannot flinch from
its duty."
129.
In
one earlier case i.e Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi
[1987 (1) SCC 227], a single Judge of the Bombay High Court had held that in
the facts of that case it could be reasonably held that the marksheet of the
M.D. Examination was tampered to benefit the daughter of Shri Shivajirao, the
then Chief Minister of Maharashtra. The Division Bench of the Bombay High Court
took the view that the circumstances relied on clearly formed a reasonable and
cogent basis for the adverse comments on the conduct of Shri Shivaji Rao. The Division
Bench had noted that the single Judge had followed the tests led down by this Court
earlier in State of U.P. Vs. Mohammad Naim [AIR 1964 SC 703] which were as
follows:- "10. ......(a) whether the party whose conduct is in question is
before the court or has an opportunity of explaining or defending himself; (b) whether
there is evidence on record bearing on that conduct justifying the remarks; and
(c) whether it is necessary for the decision of the case, an in integral part thereof,
to animadvert on that conduct.
It has also been 12 recognized
that judicial pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve."Having approved the
approach of the High Court this Court held in the facts of Shri Shivajirao's
Case as follows:- "50. There is no question in this case of giving any
clear chit to the appellant in the first appeal before us. It leaves a great
deal of suspicion that tampering was done to please Shri Patil or at his
behest. It is true that there is no direct evidence. It is also true that there
is no evidence to link him up with tampering. Tampering is established. The relationship
is established. The reluctance to face a public enquiry is also apparent. Apparently
Shri Patil, though holding a public office does not believe that "Ceaser's
wife must be above suspicion....."
130.
The
facts of the present case are stronger than those in the case of Shri Shivajirao
Nilangekar (supra). Here also a relationship is established. The basic order
dated 21.8.1996 in this matter granting no objection to an illegal action is
signed by the then Chief Minister himself. That was after personally calling
for the file containing the report dated 17.4.1996 sent by the Municipal Commissioner
much earlier. The entire narration shows that the then Chief Minister had clear
knowledge about this particular file all throughout, and the orders were issued
only because the developer was his son-in-law, and he wanted to favour him. Ultimately,
one has to draw the inference on the basis of probabilities. The test is not one
of being proved guilty beyond reasonable doubt, but one of preponderance of
probabilities. Appropriate actions taken in a Public Interest Litigation
131.
It
was contended before the High Court that the rule as to the construction of
pleadings should be strictly applied in the present case and that the material
as contained in the petitions did not justify any further probe. The High Court
rightly rejected that argument. There was a sufficient foundation in the
petition for the further steps to be taken by the High Court. The petitions
before the High Court were in the nature of public interest litigation. The purpose
in such matters is to draw the attention of the High Court to a particular state
of facts, and if the Government action is found to be contrary to law or affecting
the rights of the citizen, the court is required to intervene.
There was a specific
plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that "the
fundamental and legal right of the citizens of Pune of submitting objections
and suggestions to any modification in the Final Development Plan u/s 37 of the
act has been infringed", and that was solely on account of the developer being
a close relation of the then Chief Minister who was also the Minister for Urban
Development which controls the appointments of a Municipal Commissioner to a
Corporation established under the B.P.M.C Act 1949. A prima facie case had been
made up in the petitions which got supported when the High Court in exercise of
its Writ Jurisdiction rightly called for the relevant files from the State
Government and the PMC to explain and defend their decisions.
132.
Public
Interest Litigation is not in the nature of adversarial litigation, but it is a
challenge and an opportunity to the government and its officers to make basic human
rights meaningful as observed by this Court in paragraph 9 of Bandhua Mukti
Morcha Vs. Union of India [AIR 1984 SC 12802]. By its very nature the PIL is
inquisitorial in character. Access to justice being a Fundamental Right and citizen's
participatory role in the democratic process itself being a constitutional
value, accessing the Court will not be readily discouraged. Consequently, when
the cause or issue, relates to matters of good governance in the Constitutional
sense, and there are no particular individuals or class of persons who can be
said to be injured persons, groups of persons who may be drawn from different walks
of life, may be granted standing for canvassing the PIL.
A Civil Court acts
only when the dispute is of a civil nature, and the action is adversarial. The
Civil Court is bound by its rules of procedure. As against that the position of
a Writ Court when called upon to act in protection of the rights of the
citizens can be stated to be distinct.
133.
It
was submitted on behalf of the appellants that inference should not be drawn merely
on the basis of the notings in the file, and the remarks made by the Division
Bench ought to be expunged. In this connection we may profitably refer to the observations
of this Court in P.K. Dave Vs. Peoples' Union of Civil Liberties (Delhi) &
Ors. reported in 1996 (4) SCC 262. A Writ Petition by way of a PIL was filed before
the Delhi High Court alleging commission of gross financial irregularities by
the Director of Govt. Hospitals in Delhi. Notings in the office file produced by
the Government showed that despite suggestions made by the Health Secretary and
Chief Secretary to the Delhi Administration, Lt. Governor of the Administration
had refused to take any action against the Director.
The High Court had
passed strictures against the Lt. Governor. The learned senior counsel Shri
Venugopal appearing on behalf of the 12appellant Lt. Governor had submitted
that the strictures based on the basis of the notings should be expunged. Rejecting
the submission this Court observed in paragraph 8 as follows:- "8. ..... Where
the relevant departmental files were produced before the court by the
Government and the court on scrutiny of the same came to the conclusion that
the decision has not been taken fairly, then the court would be entitled to comment
on the role of such person who took the decision.....
In such circumstances
if the contention of Mr. Venugopal is accepted then no administrative authority
and his conduct would come under the judicial scrutiny of the court. That an administrative
order is subjected to judicial review is by now the settled position and no longer
remains res integra. This being the position we fail to appreciate the contentions
of Mr. Venugopal that the notings in the file or the orders passed by the Secretary
and Chief Secretary as well as the Governor should not have formed the basis of
the strictures passed against the appellant."
134.
Reliance
was placed on the judgment of this Court in Jasbir Singh Chhabra Vs. State of
Punjab reported in 2010 (4) SCC 192 to submit that the issues and policy matters
which are required to be decided by the Government are dealt with by several
functionaries, some of whom may record notings on the files, and such notings
recorded in the files cannot be made basis for a finding of mala fides. There
can be no dispute with the preposition when policy matters are involved as in
that case where the question was whether the State Government's refusal to sanction
change of land use from industrial to residential was vitiated due to mala fides
claimed to be arising out of such notings. In the present case we are concerned
with the notings not concerning with any policy matter, but with respect to the
application on behalf of an individual landowner to delete the reservation of a
primary school on his land, where the developer is the son-in-law of the Chief
Minister. The notings in the present case are quite clear and the inference of mala
fides therefrom is inescapable.
135.
We
have noted the observations and the conclusions arrived at by the High Court
with respect to the conduct of the then Municipal Commissioner, the Minister of
State and the then Chief Minister. The High Court has drawn its inferences and
made the remarks after following the dicta in State of U.P. Vs. Mohd. Naim
(supra). Having seen the totality of facts and guidelines laid down by this
Court in P.K. Dave's case (supra), we do not see that we can draw any other
inference then the one which was drawn by the Division Bench. We will be
failing in our duty if we do not draw the inference which clearly arises from
the notings on the file, the affidavits filed by the persons concerned and the
law with respect to drawing such inference. In the circumstances, we refuse to
expunge any of these remarks rendered by the Division Bench. Orders for
Criminal Investigation
136.
Having
drawn the above inferences, and having made the adverse remarks about the conduct
of the then Chief Minister, Minister of State and Municipal Commissioner the impugned
judgment has directed the State of Maharashtra to initiate appropriate investigation
against them through an impartial agency, and if satisfied that any criminal
offence has been committed to take such action as warranted in law.
137.
Now,
as far as this direction is concerned, we have to note that as far as the
Municipal Commissioner is concerned, though the Division Bench did 12not approve
his conduct and squarely criticized him for being more loyal to the king then the
king himself, yet in terms it observed in paragraph 144 of the judgment, that
it did not attributive any motive to him for his actions. This para reads as
follows:-
"144. While we may
not attribute any motive to respondent No.10 for his actions, we cannot approve
of the actions taken by him. We have already pointed out that the action of withdrawing
the appeal was wrong. In our view, respondent No.10 would have served the interests
of the PMC better if he had placed his dilemma before the PMC and sought a resolution
thereof, particularly when he believed that the Government was issuing him
instructions contrary to law, which he believed to exist. But, perhaps, this might
not have been clear to him at the time when he acted to please his masters.
While holding that the
actions taken by the tenth respondent were contrary to the provisions of the
BPMC Act, MRTP Act and Development Control Rule No.13.5, we find it difficult
to accept the suggestion in the writ petitions that he was a willing party to the
process of abuse of executive powers." That apart, Shri Narsimha, learned senior
counsel appearing for the Municipal Commissioner drew our attention to Section
147 of the MRTP Act which provides that no suit, prosecution or other legal
proceedings shall lie against any person for anything which is in good faith
done or entitled to be done under this Act or any rules or regulations made
therein.
Reliance was also
placed on Section 486 of the B.P.M.C. Act 1949 which is also to the similar
effect. The Division Bench has also clearly stated that it did not accept the
suggestion in the writ petitions that the Commissioner was willingly a party to
the process of abuse of executive powers. This being the position, in our view
it would not be correct to direct any criminal investigation against the then
Municipal Commissioner, and in our view to that extent the order of the
Division Bench requires to be corrected.
138.
As
far as the Minister of State is concerned also, the Division Bench commented adversely
on his conduct in paragraph 140 of its judgment. Yet it also observed in
paragraph 142 that there was nothing on record as suggested that he had any
personal motive in the matter. The relevant observation at the end of paragraph
142 reads as follows:- ".......All that we can say is that there is
nothing on record to suggest that he had any other personal motive in the
matter. We, therefore, infer that respondent No.6 must have done it to oblige his
senior colleague i.e. the then Chief Minister, respondent No.5." The
Division Bench has thus specifically inferred that whatever he has done, was done
to oblige his senior Minister i.e. the then Chief Minister and he had no
personal motive in the matter. In the circumstances, he is entitled to a
benefit of doubt and, therefore, the direction for criminal investigation
against him also can not be sustained.
139.
As
far as the Chief Minister is concerned, however, it is very clear that he was
fully aware about the application made by Shri Karandikar who was a camouflage for
his son-in-law. He had called for the file after the Municipal Commissioner
sent his report in April, 1996. But for his personal interest, the Government
and the Municipal officers would not have taken the stand and put up the notes
that he wanted to be on record. The shifting of the reservation from F.P.
No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of the
Municipal Corporation and ignoring the mandate of Section 37 was also not expected,
yet he gave "no objection" to a contrary and totally unjustified
order. The earlier part of his order viz. "all action be taken in accordance
with law" 12therefore becomes meaningless, and is nothing but a
camouflage. The conduct on the part of the then Chief Minister prima-facie
amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for
the original petitioners submits that such a conduct ought to be sternly dealt
with.
140.
The
learned counsel for the Chief Minister on the other hand pointed out that there
were no prayers for prosecution in the Writ Petitions, and the direction contained
in paragraph 227 (e) was beyond the prayers. The question therefore, is whether
the operative order passed by the High Court in this behalf is legally tenable.
The direction given by the High Court in paragraph 227 (e) is as follows:- "(e)
As far as prayer for directing prosecution against Respondent Nos. 5, 6 and 10
is concerned, after considering the facts and circumstances of the case we are
not inclined to grant this relief. ...... Nonetheless, we direct the first respondent
to make appropriate investigations through an impartial agency and, if
satisfied that any criminal offences have been committed by the aforesaid respondents
in the discharge of their duties, to take action as is warranted in
law."Respondent Nos. 5, 6 and 10 were the then Chief Minister, the then
Minister of State and the then Municipal Commissioner.
141.
In
this context we have to take note of the judgment of a bench of three Judges of
this Court in this behalf on a review petition in the case of Common Cause, A
Registered Society Vs. Union of India & Ors. reported in 1999 (6) SCC 667.
The Minister concerned in that matter had committed the misfeasance of allotment
of retail outlets of petroleum products out of the discretionary quota in an
arbitrary and mala fide manner. Such allotments had been set aside by a bench of
two Judges by its judgment between the same parties reported in 1996 (6) SCC 530.
The Court had
thereafter passed an order that the Minister concerned shall show cause within two
weeks why a direction be not issued to the appropriate police authority to
register a case and initiate prosecution against him for criminal breach of
trust of any other offence under law. This Court held in paragraph 174 of its judgment
on the review petition as follows:- "174. The other direction, namely, the
direction to CBI to investigate "any other offence" is wholly
erroneous and cannot be sustained.
Obviously, direction for
investigation can be given only if any offence is, prima facie, found to have
been committed or a person's involvement is prima facie established, but a direction
to CBI to investigate whether any person has committed an offence or not cannot
be legally given. Such a direction would be contrary to the concept and philosophy
of "LIFE" and "LIBERTY" guaranteed to a person under Article
21 of the Constitution. This direction is in complete negation of various decisions
of this Court in which the concept of "LIFE" has been explained in a
manner which has infused "LIFE" into the letters of Article 21."
142.
It
could be perhaps argued that the misfeasance on the part of the then Chief
Minister and the Minister of State amounts to a criminal misconduct also under
Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In the present
case however, there is neither any such reference to this section nor any prima
facie finding in the impugned judgment rendered way back in March 1999. In the circumstances
in view of the proposition of law enunciated by a larger bench in the above
case it is difficult to sustain the direction to make appropriate
investigations through an impartial agency, and if satisfied that any criminal offence
has been committed by the aforesaid respondents in the discharge of their
duties, to take action as is warranted in law. 13 Epilogue Approach Towards the
Planning Process
143.
The
significance of planning in a developing country cannot be understated. After
years of foreign rule when we became independent, leaders of free India realized
that for advancement of our society and for an orderly progress, we had to make
a planned effort. Infact, even prior to independence the leaders of the freedom
struggle had applied their mind to this aspect. The leaders of Indian Freedom
Movement and particularly Pandit Jawaharlal Nehru, our first Prime Minister
always emphasised democratic planning as a method of nation building and
economic and social upliftment of Indian society.
In March, 1931, the
Indian National Congress at its Karachi Session passed a resolution to the
effect that the State shall take steps to secure that ownership and control of the
material resources of the community are so distributed as best to subserve the common
good. Pandit Nehru drafted this resolution in consultation with Gandhiji and
described it as a very short step in a socialist direction. In 1938, the National
Planning Committee of the Congress was set up under the Chairmanship of Pandit
Nehru who has been aptly described as "the Architect of democratic planning
in India". The Economic Programme Committee of the Congress under his
Chairmanship made a recommendation of setting up a permanent Planning
Commission in 1947-48.
144.
Shri
H.K. Paranjape, (1924-1993) an eminent Economist and a former Member of
Monopolies and Restrictive Trade Practices Commission and former Chairman of
Railway Tariff Committee, in his monograph "Jawaharlal Nehru and the Planning
Commission" (published by Indian Institute of Public Administration in
September, 1964) notes that Nehru linked up the work of Planning Commission directly
to the Fundamental Rights and the Directive Principles enunciated in the Constitution.
Nehru always wanted to make sure that the objectives of the Planning Commission
were well defined and well understood. In this article, the author further
records as follows:-
"When the
National Development Council was discussing the Draft Outline of the Third Plan
in September, 1960, he emphasized the importance of remembering "what our
objectives were and not to lose ourselves in the forest of details that a Plan had
to deal with. Because, always when one considered the detail, one must look
back on the main thing, how far it fitted in with the main issue; otherwise, it
was out of place". Nehru believed in participation of different sections
of society in framing of the Plan. The emphasis has always been amongst others
to put land to the best use from the point of the requirements of our society,
since land is a scarce resource and it has to be used for the optimum benefit
of the society
145.
As
stated above, we adopted the model of democratic planning which involves the participation
of the citizens, planners, administrators, Municipal bodies and the Government
as is also seen throughout the MRTP Act. Thus when it comes to the Development
Plan for a city, at the initial stage itself there is the consideration of the present
and future requirements of the city. Suggestions and objections of the citizens
are invited with respect to the proposed plan, and then the planners apply their
mind to arrive at the plan which is prepared after a scientific study, and
which will be implemented during 13the next 10 to 20 years as laid down under
Section 38 of the MRTP Act.
The plan is prepared
after going through the entire gamut under Sections 21 to 30 of the Act, and then
only the sanction is obtained thereto from the State Government. That is why
the powers to modify the provisions of the plan are restricted as noted
earlier. If the plan is to be tinkered for the benefit of the interested
persons, or for those who can approach the persons in authority, then there is
no use in having a planned development.
Therefore, Section 37
which permits the minor modifications provides that even that should not result
into changing the character of the development plan, prior whereto also a
notice in the gazette is required to be issued to invite suggestions and
objections. Where the modification is of a substantial nature, then the
procedure under Section 29 of the Act requiring a notice in the local newspapers
inviting objections and suggestions from the citizens is to be resorted to. Even
the deletion of reservation under Section 50 is at the instance of the
appropriate authority only when it does not want the land for the designated
purpose.
146.
The
idea is that once the plan is formulated, one has to implement it as it is, and
it is only in the rarest of the rare cases that you can depart therefrom. There
is no exclusive power given to the State Government, or to the planning authority,
or to the Chief Minister to bring about any modification, deletion or
de-reservation, and certainly not by a resort to any of the D.C. Rules. All
these constituents of the planning process have to follow the mandate under Section
37 or 22A as the case may be if any modification becomes necessary.
That is why this
Court observed in paragraph 45 of Chairman, Indore Vikas Prodhikaran Vs. Pure
Industrial Coke & Chemicals Ltd. & Ors. reported in 2007 (8) SCC 705 as
follows:- "45. Town and country planning involving land development of the
cities which are sought to be achieved through the process of land use, zoning plan
and regulating building activities must receive due attention of all concerned.
We are furthermore not oblivious of the fact that such planning involving highly
complex cities depends upon scientific research, study and experience and, thus,
deserves due reverence. (emphasis supplied) Role of Municipalities
147.
The
municipalities which are the planning authorities for the purpose of bringing
about the orderly development in the municipal areas, are given a place of
pride in this entire process. They are expected to render wide ranging
functions which are now enumerated in the constitution. They are now given a status
under Part IX A of the Constitution introduced by the 74th Amendment w.e.f. 1.6.1993.
Article 243W lays down the powers of the Municipalities to perform the
functions which are listed in the Twelfth Schedule. For performing these
functions, planning becomes very important.
This Twelfth Schedule
contains the following items:- "TWELFTH SCHEDULE [Article 243W]
1. Urban planning
including town planning.
2. Regulation of
land-use and construction of buildings. 3. Planning for economic and social
development.
4. Roads and bridges.
5. Water supply for
domestic, industrial and, commercial purposes.
6. Public health,
sanitation conservancy and solid waste management.
7. Fire services. 13
8. Urban forestry, protection
of the environment and promotion of ecological aspects.
9. Safeguarding the
interests of weaker sections of society, including the handicapped and mentally
retarded.
10. Slum improvement
and upgradation.
11. Urban poverty
alleviation.
12. Provision of
urban amenities and facilities such as parks, gardens, playgrounds.
13. Promotion of
cultural, educational and aesthetic aspects.
14. Burials and burial
grounds; cremations, cremation grounds and electric crematoriums.
15. Cattle ponds;
prevention of cruelty to animals.
16. Vital statistics
including registration of births and deaths.
17. Public amenities
including street lighting, parking lots, bus stops and public conveniences.
18. Regulation of
slaughter houses and tanneries.
"The primary
powers of the Municipal Corporations in Maharashtra such as PMC (excluding some
Municipal Corporations which have their separate enactments) and of the Standing
Committees of the Corporations are enumerated in the BPMC Act. Coupled with those
powers, the Municipal Corporations have their powers under MRTP Act. These are
the statutory powers, and they cannot be bypassed. The Responsibility of the
Municipal Commissioner and the Senior Government Officers
148.
The
Municipal Commissioner is the Chief Executive of the Municipal Corporation. It
is his responsibility to act in accordance with these laws and to protect the
interest of the Corporation. The Commissioner is expected to place the complete
and correct facts before the Government when any such occasion arises, and
stand by the correct legal position. That is what is expected of the senior administrative
officers like him.
That is why they are given
appropriate 13protection under the law. In this behalf, it is worthwhile to
refer to the speech of Sardar Vallabhbhai Patel, the first Home Minister of independent
India, made during the Constituent Assembly Debates, where he spoke about the
need of the senior secretaries giving their honest opinions which may not be to
the liking of the Minister. While speaking about the safeguards for the Members
of Indian Civil Service (now Indian Administrative Service), he said- "...To-day,
my Secretary can write a note opposed to my views. I have given that freedom to
all my Secretaries. I have told them `if you do not give your honest opinion
for fear that it will displease your Minister, please then you had better go. I
will bring another Secretary.' I will never be displeased over a frank expression
of opinion.
That is what the
Britishers were doing with the Britishers. We are now sharing the
responsibility. You have agreed to share responsibility. Many of them with whom
I have worked, I have no hesitation in saying that they are patriotic, as loyal
and as sincere as myself."(Ref: Constituent Assembly Debates. Vol.10 p.
50)Now unfortunately, we have a situation where the senior officers are
changing their position looking to the way the wind is blowing. Expectations
from the Political Executive
149.
Same
are the expectations from the political executive viz. that it must be above board,
and must act in accordance with the law and not in furtherance of the interest
of a relative. However, as the time has passed, these expectations are belied.
That is why in the case of Shri Shivajirao Nilangekar (supra) this Court had to
lament in paragraph 51 of the judgment as follows:- "51. This Court cannot
be oblivious that there has been a steady decline of public standards or public
morals and public morale. It is necessary to cleanse public life in this
country along with or even before cleaning the physical atmosphere. The pollution
in our values and standards in (sic is) an equally grave menace as the pollution
of the environment. Where such situations cry out, the courts should not and
cannot remain mute and dumb."
150.
People
of a state look up to the Chief Minister and those who occupy the high
positions in the Government and the Administration for redressal of their
grievances. Citizens are facing so many problems and it is expected of those in
such positions to resolve them. Children are particularly facing serious
problems concerning facilities for their education and sports, quality of
teaching, their health and nutrition. It is the duty of those in high positions
to ensure that their conduct should not let down the people of the country, and
particularly the younger generation.
The ministers, corporators
and the administrators must zealously guard the spaces reserved for public
amenities from the preying hands of the builders. What will happen, if the protectors
themselves become poachers? Their decisions and conduct must be above board. Institutional
trust is of utmost importance. In the case of Bangalore Medical Trust (supra)
this court observed in paragraph 45 of its judgment that "the directions
of the Chief Minister, the apex public functionary of the State, was in breach
of public trust, more like a person dealing with his private property than discharging
his obligation as head of the State administration in accordance with law and
rules". Same is the case in the present matter where Shri Manohar Joshi,
the then Chief Minister and Shri Ravindra Mane, the Minister of State have
failed in this test, and in discharge of their duties. Nay, they have let down
the people of the city and the state, and the children. Importance of the
spaces for public amenities
151.
As
we have seen, the MRTP Act gives a place of prominence to the spaces meant for
public amenities. An appropriately planned city requires good roads, parks, playgrounds,
markets, primary and secondary schools, clinics, dispensaries and hospitals and
sewerage facilities amongst other public amenities which are essential for a
good civic life. If all the spaces in the cities are covered only by the
construction for residential houses, the cities will become concrete jungles
which is what they have started becoming.
That is how there is
need to protect the spaces meant for public amenities which cannot be
sacrificed for the greed of a few landowners and builders to make more money on
the ground of creating large number of houses. The MRTP Act does give importance
to the spaces reserved for public amenities, and makes the deletion thereof difficult
after the planning process is gone through, and the plan is finalized. Similar
are the provisions in different State Acts.
Yet, as we have seen from
the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical
Trust (supra) and Lucknow (M.I Builders Pvt. Ltd. (supra), and now as is seen in
this case in Pune, the spaces for the public amenities are under a systematic attack
and are shrinking all over the cities in India, only for the benefit of the
landowners and the builders. Time has therefore come to take a serious stock of
the situation. Undoubtedly, the competing interest of the landowner is also to
be taken into account, but that is already done when the plan is finalized, and
the landowner is compensated as per the law. Ultimately when the land is reserved
for a public purpose after following the due process of law, the interest of
the individual must yield to the public interest.
152.
As
far as the MRTP Act is concerned, as we have noted earlier, there is a complete
mechanism for the protection of the spaces meant for public amenities. We have
seen the definition of substantial modification, and when the reservation for a
public amenity on a plot of land is sought to be deleted completely, it would
surely be a case of substantial modification, and not a minor modification. In that
case what is required is to follow the procedure under Section 29 of the Act, to
publish a notice in local newspapers also, inviting objections and suggestions
within sixty days. The Government and the Municipal Corporations are trustees
of the citizens for the purposes of retention of the plots meant for public amenities.
As the Act has indicated, the citizens are vitally concerned with the retention
of the public amenities, and, therefore deletion or modification should be resorted
to only in the rarest of rare case, and after fully examining as to why the concerned
plot was originally reserved for a public amenity, and as to how its deletion
is necessary.
Otherwise it will
mean that we are paying no respect to the efforts put in by the original planners
who have drafted the plan, as per the requirements of the city, and which plan
has been finalized after following the detailed procedures as laid down by the
law. Suggested safeguards for the future
153.
Having
noted as to what has happened in the present matter, in our view it is
necessary that we should lay down the necessary safeguards for the future so
that such kind of gross deletions do not occur in the future, and the provisions
of the Act are strictly implemented in tune with the spirit behind. 13(i) Therefore,
when the gazette notification is published, and the public notice in the local
newspapers is published under Section 29 (or under Section 37) it must briefly
set out the reasons as to why the particular modification is being proposed. Since
Section 29 provides for publishing a notice in the `local newspapers', we adopt
the methodology of Section 6 (2) of the L.A. Act, and expect that the notice shall
be published atleast in two daily newspapers circulating in the locality, out of
which atleast one shall be in the regional language.
We expect the notice
to be published in the newspapers with wide circulation and at prominent place
therein.(ii) Section 29 lays down that after receiving the suggestions and
objections, the procedure as prescribed in Section 28 is to be followed. Sub-section
(3) of Section 28 provides for holding an inquiry thereafter wherein the
opportunity of being heard is to be afforded by the Planning Committee (of the Planning
Authority) to such persons who have filed their objections and made suggestions.
The Planning
Committee, therefore, shall hold a public inquiry for all such persons to get
an opportunity of making their submission, and then only the Planning Committee
should make its report to the Planning Authority.(iii) One of the reasons which
is often given for modification/deletion of reservation is paucity of funds,
which was also sought to be raised in the present matter by the Municipal
Commissioner for unjustified reasons, in as much as the compensation amount had
already been paid. However, if there is any such difficulty, the planning
authority must call upon the citizens to contribute for the project, in the
public notice contemplated under Section 29, in as much as these public amenities
are meant for them, and there will be many philanthropist or corporate bodies
or individuals who may come forward and support the public project financially.
That was also the approach indicated by this Court in Raju S. Jethmalani Vs.
State of Maharashtra reported in [2005 (11) SCC 222]. Primary Education
154.
Primary
education is one of the important responsibilities to be discharged by Municipalities
under the Bombay Primary Education Act 1947. Again, to state the reality, even
after sixty years after the promulgation of the Constitution, we have not been able
to attain full literacy. Of all the different areas of education, primary education
is suffering the most. When the Constitution was promulgated, a Directive
Principle was laid down in Article 45 which states that the State shall
endeavour to provide, within the period of ten years from the commencement of the
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.
This has not been achieved
yet. The 86th Amendment to the Constitution effected in the year 2002 deleted
this Article 45, and substituted it with new Article 45 which lays down that the
State shall endeavour to provide early childhood care and education for all children
until they complete the age of six years. The amendment has made Right to
Education a Fundamental Right under Article 21A. This Article lays down that
the State shall provide free and compulsory education to all children of the
age of six to fourteen years in such manner as the State may, by law,
determine. In the year 2009 we passed the Right of Children to 14Free and
Compulsory Education Act 2009. All these laws have however not been implemented
with the spirit with which they ought to have been.
We have several national
initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary
Education Programme, and the Universal Elementary Education Programme to name a
few. However, the statistical data shows that we are still far away from
achieving the goal of full literacy.
155.
Nobel
laureate Shri Amartya Sen commented on our tardy progress in the field of basic
education in his Article `The Urgency of Basic Education' in the seminar "Right
to Education-Actions Now" held at New Delhi on 19.12.2007 as follows:- "India
has been especially disadvantaged in basic education, and this is one of our
major challenges today. When the British left their Indian empire, only 12 per
cent of the India population was literate. That was terrible enough, but our progress
since independence has also been quite slow.
This contrasts with our
rapid political development into the first developing country in the world to have
a functioning democracy."The story for Pune city is not quite different. Since
the impugned development permission given by the Municipal Corporation was on
the basis of no objection of the Chief Minister dated 21.8.1996, we may refer
to the Educational Statistics of Pune city, at that time. As per the Census of
India 1991, the population of Pune city was 24,85,014, out of which 17,14,273
were the literate persons which comes to just above 2/3 of the population. The
percentage of literacy has gone up thereafter, but still we are far away from
achieving full literacy and from the goal of providing quality education and
facilities at the primary level.
156.
There
is a serious problem of children dropping out from the primary schools. There
are wide ranging factors which affect the education of the children at a tender
age, such as absence of trained teachers having the proper understanding of child
psychology, ill-health, and mal-nutrition. The infrastructural facilities are
often very inadequate. Large number of children are cramped into small
classrooms and there is absence of any playground attached with the school.
This requires adequate spaces for the primary schools.
Even in the so called
higher middle class areas in large cities like Pune, there are hardly any open
spaces within the housing societies and, therefore, adequate space for the
playgrounds of the primary schools is of utmost importance. Having noted this
scenario and the necessity of spaces for primary schools in urban areas, it is rather
unfortunate that the then Chief Minister who claims to be an educationist took
interest in releasing a plot duly reserved and acquired for a primary school only
for the benefit of his son-in-law. It also gives a dismal picture of his
deputy, the Minister of State acting to please his superior, and so also of the
Municipal Commissioner ignoring his statutory responsibilities. Operative order
with respect to the disputed buildings
157.
We
have held the direction given by the State Government for the deletion of reservation
on Final Plot No.110, and the commencement and occupation certificates issued
by the Pune Municipal Corporation in favour of the developer were in complete subversion
of the statutory requirements of the MRTP Act. The development permission was
wholly illegal and unjustified. As far as the building meant for the tenants is
concerned, the developer as well as 14PMC have indicated that they have no
objection to the building being retained.
As far as the ten
storied building meant for the private sale is concerned, the developer had offered
to hand over half the number of floors to PMC, provided it permits the remaining
floors to be retained by the developer. PMC has rejected that offer since the
plot was reserved for a primary school. The building must therefore be either demolished
or put to a permissible use.
The illegal
development carried out by the developer has resulted into a legitimate primary
school not coming up on the disputed plot of land. Thousands of children would
have attended the school on this plot during last 15 years. The loss suffered
by the children and the cause of education is difficult to assess in terms of
money, and in a way could be considered to be far more than the cost of
construction of this building. Removal of this building is however not going to
be very easy. It will cause serious nuisance to the occupants of the adjoining buildings
due to noise and air pollution. The citizens may as well initiate actions
against the PMC for appropriate reliefs.
It is also possible
that the developer may not be able to remove the disputed building within a
specified time, in which case the PMC will have to incur the expenditure on removal.
It will, therefore, be open to the developer to redeem himself by offering the entire
building to PMC for being used as a primary school or for the earmarked
purpose, free of cost. If he is so inclined, he may inform PMC that he is
giving up his claim on this building also in favour of PMC.
158.
The
High Court has not specified the time for taking the necessary steps in this
behalf. Hence, for the sake of clarity, we direct the developer to 14inform the
PMC within two weeks from today whether he is giving up the claim on the ten
storied building named `Sundew Apartments' apart from the tenants' building in
favour of PMC, failing which PMC will issue a notice to the developer within
two weeks thereafter, calling upon him to furnish particulars to PMC within two
weeks from the receipt of the notice, as to in what manner and time frame he
proposes to demolish this ten storied building.
In the event the
developer declines or fails to do so, or does not respond within the specified
period, or if PMC forms an impression after receiving his reply that the
developer is incapable of removing the building in reasonably short time, the
PMC will go ahead and demolish the same. In either case the decision of the
City Engineer of PMC with respect to the manner of removal of the building and
disposal of the debris shall be final.
159.
As
far as the ownership of the plot is concerned, the same will abide by the
decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will
be decided in accordance with law. The old tenants will continue to occupy the
building meant for the tenants.
160.
The
PMC and the State Government have fairly changed/reviewed their legal position in
this Court, and defended their original stand about the illegality of the construction.
We therefore, absolve both of them from paying costs to the original
petitioners. The order with respect to payment of cost of Rs. 10,000/- against
the then Chief Minister and the Minister of State to each of the original
petitioners however remains. Over and above we add Rs. 15,000/- for each of
them to pay to the two petitioners separately towards the cost of these 14appeals
in this Court. Thus, the then Chief Minister and the Minister of State shall
each pay Rs. 25,000/- to the two petitioners separately.
161.
The
spaces for public amenities such as roads, playgrounds, markets, water supply and
sewerage facilities, hospitals and particularly educational institutions are essential
for a decent urban life. The planning process therefore assumes significance in
this behalf.
The parcels of land
reserved for public amenities under the urban plans cannot be permitted to be
tinkered with. The greed for making more money is leading to all sorts of construction
for housing in prime city areas usurping the lands meant for public amenities
wherever possible and in utter disregard for the quality of life. Large number of
areas in big cities have already become concrete jungles bereft of adequate
public amenities.
It is therefore, that
we have laid down the guidelines in this behalf which flow from the scheme of the
MRTP Act itself so that this menace of grabbing public spaces for private ends stops
completely. We are also clear that any unauthorised construction particularly
on the lands meant for public amenities must be removed forthwith. We expect the
guidelines laid down in this behalf to be followed scrupulously. The
conclusions in nutshell and the consequent order162. In the circumstances we
conclude and pass the following order –
i.
We
hold that the direction given by the Government of Maharashtra for the deletion
of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the consequent
Commencement and Occupation certificates issued by the Pune Municipal Corporation
(PMC) in favour of the developer were in complete 14subversion of the statutory
requirements of the MRTP Act. The development permission was wholly illegal and
unjustified.
ii.
The
direction of the High Court in the impugned judgment dated 6/15.3.1999 in Writ Petition
Nos. 4433 and 4434/1998 for demolition of the concerned building was fully
legal and justified.
iii.
The
contention of the landowner that his right of development for residential
purposes on the concerned plot under the erstwhile Town Planning scheme
subsisted in spite of coming into force of Development Plan reserving the plot
for a primary school, is liable to be rejected.
iv.
The
acquisition of the concerned plot of land was complete with the declaration under
Section 126 of the MRTP Act read with Section 6 of Land Acquisition Act and the
same is valid and legal.
v.
The
order passed by the High Court directing the Municipal Corporation to move for
the revival of the First Appeal Stamp No. 18615 of 1994 was therefore necessary.
The High Court is expected to decide the revived First Appeal at the earliest
and preferably within four months hereafter in the light of the law and the
directions given in this judgment.
vi.
The
developer shall inform the PMC whether he is giving up the claim over the
construction of the ten storied building (named `Sundew Apartments') apart from
the tenants' building in favour of PMC, failing which either the developer or the
PMC shall take steps for demolition of the disputed building (Sundew
Apartments) as per the time frame laid down in this judgment.
vii.
The
former occupants of F.P No. 110 will continue to reside in the building
constructed for the tenants on the terms stated in the judgment.
viii.
The
corporation will not be required to pay any amount to the developer for the
tenants' building constructed by him, nor for the ten storied building in the
event he gives up his claim over it in favour of PMC.
ix.
The
strictures passed by the High Court against the then Chief Minister of Maharashtra
Shri Manohar Joshi and the then Minister of State Shri Ravindra Mane are maintained.
The prayer to expunge these remarks is rejected. The remarks against the
Municipal Commissioner are however deleted.
x.
The
order directing criminal investigation and thereafter further action as
warranted in law, is however deleted in view of the judgment of this Court in
the case of Common Cause A Registered Society Vs. Union of India reported in
1999 (6) SCC 667
xi.
The
then Chief Minister and the then Minister of State shall each pay cost of Rs.
15,000/- to each of the two petitioners in the High Court towards these ten
appeals, over and above the cost of Rs. 10,000/- awarded by the High Court in
the writ petitions payable by each of them to the two writ petitioners.
xii.
The
State Government and the Planning authorities under the MRTP Act shall
hereafter scrupulously follow the directions and the suggested safeguards with
respect to the spaces meant for public amenities. All the appeals stand
disposed of as above.
...............................J.
( R.V. Raveendran )
...............................J.
( H.L. Gokhale )
New
Delhi
Dated:
October 12, 2011.
Back