Girish Vyas And Anr vs State Of Maharashtra And Ors

Shri Girish Vyas & Anr. ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 2450 OF 2000

Dr. Laxmikant Madhav Murudkar (since deceased)

Through LRs Mrs. Ranjana Laxmikant Murudkar & Ors. ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

WITH

CIVIL APPEAL NOS. 2102-2103 OF 2000

Shri Manohar Joshi ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

WITH

CIVIL APPEAL NO. 2120 OF 2000

Shri Ravindra Murlidhar Mane ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

WITH

CIVIL APPEAL NOS. 2105-2106 OF 2000

2

Shri Rama Nath Jha ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

WITH

CIVIL APPEAL NOS. 196-197 OF 2000

Maruti Raghu Sawant & Ors. ...Appellants

Versus

The State of Maharastra & Ors. ...Respondents

J U D G E M E N T

H.L. Gokhale J.

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

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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

4

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

5

constructed 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.

6

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

7

D.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

8

never 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

9

objections 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.

10

273 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.

11

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

12

S.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,

alongwith 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

13

these 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

14

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

15

1.11.1995 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

16

for 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

17

as (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

18

had 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

19

general 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

20

note 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

21

that 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

25

13.6.1996, 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.

26

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)

27

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

31

at 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

32

that 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

36

had 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

37

the 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)

38

no 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

41

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

42

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:-

44

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.

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(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

46

public 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

47

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

48

Act 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

49

Town 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

53

Section 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.

54

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.

55

plan. 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.

56

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.

57

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

58

Dholakia, 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

59

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

60

case). 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

61

provision 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

63

the 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

64

noted 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

65

our 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,

67

there 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

69

department 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

70

reservation 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

71

Government 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.

72

Scheme, 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,

73

since 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

74

Court 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

76

Authority. 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

77

for 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), Floor 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

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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

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under 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

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act 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

82

down 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

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will 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

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the 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. 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

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did 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

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Judge, 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,

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the 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

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appeal 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

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direction 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

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department (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

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Corporation, 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.

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(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

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Minister 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

94

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

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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,

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who 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

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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,

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(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

99

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

10

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)

10

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

10

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

10

of 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

10

administration 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

10

his 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

10

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

10

the 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

11

authority 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

11

matter?" 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

11

accordance 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.

11 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

11

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

11

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

11

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

11

the 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

12

noted 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

12

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

12

802]. 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

12

appellant 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,

12

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

12

not 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.

12

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"

12

therefore 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

12

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

13

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

13

the 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

13

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

13

protection 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

13

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

13

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. 13

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.

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(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

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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

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Free 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.

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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

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PMC 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

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inform 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

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appeals 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 order

162. 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

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subversion 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.

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(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 )

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................................J.

( H.L. Gokhale )

New Delhi

Dated: October 12, 2011.