Mig Cricket Club vs Abhinav Sahakar Edn.Society & Ors

(East) in the city of Mumbai. Respondent No. 4,

Maharashtra Housing and Area Development Authority

(hereinafter referred to as "MHADA") and Respondent

No. 5, Bombay Housing and Area Development Board

(hereinafter referred to as "BHADB") with the

consent of Respondent No. 3, Municipal Corporation

of Greater Bombay (hereinafter referred to as the

3

"Corporation") under a resolution of February, 1965

granted lease for a period of 99 years to the writ

petitioner on a premium equivalent to the price

fixed and payable annually by way of installments.

According to the writ petitioner, however, on

measurement of the plot, the area was found to be

7301.25 sq. yards and when it proposed to construct

a school building thereon, it came to its notice

that the area in question has been reserved for a

playground in the draft development plan. Writ

Petitioner brought this fact to the notice of MHADA

and BHADB by letter dated 8th of May, 1968 and in

answer thereto the writ petitioner Society was

asked to get the user of the land changed in

accordance with law. Meanwhile, according to the

writ petitioner, the Maharashtra Regional and Town

Planning Act, 1966 (hereinafter referred to as the

"Act") had come into force on 20th of December,

1966.

4 3. Further case of the writ petitioner is that by

letter dated 15th of November, 1978 the Secretary to

the Government of Maharashtra in the Department of

Housing and the Chief Executive Officer and Vice-

President of MHADA in a letter addressed to the

Secretary of Urban Development Department requested

for modification of the draft development plan

showing "school purpose" for the user of the said

plot. By letter dated 1st of January, 1979, the

Senior Town Planner of the Bombay Metropolitan

Regional Development Authority directed the writ

petitioner to furnish certain details and plans.

According to the writ petitioner he duly complied

with the direction. It has been further averred

that by letter dated 12th of November, 1979

addressed to the Personal Assistant to the Minister

for Education, his intervention was sought for the

necessary change in the user of the land for the

purpose of school. By letter dated 10th of August,

5

1983, the Under Secretary to the Urban Development

Department of the State Government informed the

writ petitioner that instruction has been issued to

the Corporation for change of the user of the plot

in question for school purposes. In February 1984,

according to the writ petitioner, the Corporation

passed a resolution sanctioning user of the said

plot for the purpose of a school. Ultimately in

exercise of the powers under Section 37(2) of the

Act, a notification dated 10th of April, 1985 came

to be issued and published in the Government

Gazette on 25th of April, 1985. By the said

notification the land admeasuring 6103.33 sq.

meters out of Survey No. 341 (Part) was excluded

from the site reserved for the playground and the

land so released was earmarked for the "school and

cultural centre" in the development plan of the

area. The change of the user of the said plot was

also confirmed to the writ petitioner by the

6

Executive Engineer, Town Planning (Division Plan)

by the Corporation by letter dated 15th of April,

1985.

4. It is the allegation of the writ petitioner

that during the period 1985-1986 it came to its

notice that Respondent No. 3 of the writ petition

i.e. MIG Cricket Club (the appellant herein) had

also approached the State Government for change of

the user of the said plot for "cricket playground".

It is the case of the writ petitioner that attempts

were made to convince it to shift the school to

another plot as the plot in question was required

by the MIG Cricket Club (hereinafter referred to as

"the Club") for its playground. Petitioner did not

yield to the pressure and by letter dated 10th of

November, 1986 sought permission to erect a

compound wall on account of the threats given by

the Club. The Corporation by its communication

dated 24th of November, 1986 gave the permission

7

sought for and informed the writ petitioner to

submit development plan to the State Government.

According to the writ petitioner, the Corporation

informed it that in the proposed development plan

submitted to the Government, by mistake it has

shown the plot in question as "cricket club and

playground". In the aforesaid premises petitioner

was asked to approach the State Government to get

the mistake rectified. As directed, the petitioner

by letter dated 8th of November, 1986 approached

the State Government for rectification of the

mistake and the same was acknowledged by the

Corporation stating that appropriate action would

be taken in this regard. However, to its surprise

the petitioner came across the notification dated

24th of April, 1992 published in the Gazette on 7th

of May, 1992 which revealed that State Government

in exercise of the powers conferred under Section

31(1) of the Act, had modified the user of the land

8

in question and instead of land being shown

reserved for "school and cultural centre" it was

shown as a "playground".

5. Aggrieved by the same, the petitioner

preferred the writ petition inter alia challenging

the aforesaid notification and further for a

direction to the respondents of the writ petition

to restore the reservation of plot for "school and

cultural centre".

6. Respondents in the writ petition including the

Club, the appellant herein, contested the writ

petition and according to them the notification

dated 10th of April, 1985 was a minor modification

in relation to a specific plot of land of a

development plan sanctioned by the State Government

before the commencement of the Act. It was further

pointed out that the draft development plan for the

entire area was already prepared on 16th October,

9

1984 and after hearing the necessary objections and

suggestion the revised draft development plan was

submitted on 29th of April, 1986 by the Corporation

with necessary modification to the State

Government. The same was finalized and the impugned

notification dated 24th of April, 1992 was issued

and published on 7th of May, 1992, whereby the land

in question was shown as reserved for the purpose

of "playground". It has further been averred by

the respondents that the interest of the petitioner

was also safeguarded by reserving a plot towards

the eastern side of the plot in question for the

"school and cultural centre". According to the

respondents such finalization of the plan was done

after hearing all the interested parties. It is

the allegation of the respondents that the school

opened by the petitioner was permanently closed

since 1990 and on account of the failure on the

part of the petitioner to pay the premiums payable

10

to MHADA, the allotment in favour of the petitioner

is liable to be cancelled. Respondents have

further averred that the land in question was

delivered to the Corporation which in turn leased

the same to the Club since September, 1974.

7. In view of the pleadings of the parties the

question which fell for consideration before the

High Court was whether the notification dated 24th

of April, 1992 issued in exercise of the powers

under Section 31(1) of the Act was legal, valid and

complied with the provisions of the Act.

8. The High Court on appraisal of the materials

came to the conclusion that the notification dated

10th of April, 1985 purportedly issued in exercise

of the powers under Section 37(2) of the Act was in

fact issued in exercise of the power under Section

31(2) of the Act. While doing so the High Court

observed as follows:

11 "The very fact that the draft development plan was prepared and placed for objections and suggestions from the members of the public on 30th April, 1984 and thereafter, by the notification dated 10th April, 1985 the respondents had finalized the reservation of the land in question to be for school and cultural centre, even though the notification on the face of it refers to the exercise of powers under Section 37(2) of the said Act, for all the legal purposes, it will have to be construed as having been issued in exercise of powers under Section 31 of the said Act in relation to the area in question. It is pertinent to note that there is no dispute on the point that subsequent to the draft development plan was prepared on 30th April, 1984, there was no finalization of the said plan in terms of Section 31 of the said Act otherwise than the notification of 10th April, 1985. Being so, there was no occasion for the respondents on 10th April, 1985 to exercise the powers under Section 37(2) which clearly speaks of modification in the final development plan."

As regards notification dated 24th of April,

1992 said to have been issued in exercise of the

power under Section 31(1) of the Act, the High

Court observed that in fact the State Government

12

exercised the power under Section 37(2) of the Act.

In this connection, the High Court observed as

follows:

"........Once it was known to the respondents that the draft plan was prepared on 30th April, 1984 and was subjected to the objections and suggestions from the members of the public and thereafter, on 10th April, 1985, a part of such area was finalized and notified, mere reference in the notification to Section 37(2) of the said Act could not be construed to mean that the powers had been, in fact, exercised under Section 37(2). It will have to be construed as having been exercised under Section 31(1) of the said Act, and for the same reason, it was necessary for the respondents to explain as to how and why the said notification dated 10th April, 1985 could not be considered or was not necessary to be construed while issuing the notification dated 24th April, 1992."

Ultimately, the High Court held that the

impugned notification dated 24th of April, 1992 had

been issued without consideration of the

notification dated 10th of April, 1985 which

13

renders the same illegal. While holding so the

High Court observed as follows:

".........The impugned notification is of dated 24th April, 1992. Being so, once it is held that the impugned notification has not been issued in compliance with the provisions of law and the decision making process in that regard does not disclose the opportunity to the petitioner of being heard in the matter and the consideration of the notification dated 10th April, 1985 and application of mind by the concerned authorities before issuing the impugned notification, for the reasons stated above, therefore, the impugned notification is liable to be quashed and set aside to the extent it relates to the plot in question.

Consequently, the respondents will have to be also directed to restore the reservation of the plot in question in accordance with the notification dated 10th April, 1985."

Accordingly the High Court allowed the writ

petition, quashed the impugned notification and

granted the relief sought for by the writ

petitioner.

14 9. Mr. Shyam Divan, Senior Advocate appearing on

behalf of the appellant contends that the High

Court erred in holding that the notification dated

10th April, 1985 is, in fact, final development

plan in relation to the area in question as

contemplated under Section 31(1) of the Act. He

points out that under Section 35 of the Act a

development plan sanctioned by the State Government

before commencement of the Act shall be deemed to

be final development plan sanctioned under the Act.

According to him, the notification dated 10th

April, 1985 modified the deemed final development

plan which was in existence prior to the coming

into force of the Act. Under the deemed development

plan, according to Mr. Divan, the area in question

was shown as "playground" and hence, the

modification in the final development plan can be

done in exercise of the power conferred under

Section 37(2) of the Act. In fact, while issuing

15

the notification dated 10th April, 1985, such a

power was exercised which would be apparent from

the notification and the site reserved for

"playground" was earmarked for the "school and

cultural centre". Mr. Divan further points out

that the draft development plan submitted on 29th

April, 1986 was sanctioned as development plan

under Section 31(1) of the Act by notification

dated 24th April, 1992 and the notification itself

shows that it was sanctioned under Section 31(1) of

the Act. According to him, the High Court

erroneously held that this notification, in fact,

was issued under Section 37(2) of the Act. In sum

and substance, according to Mr. Divan, the

notifications dated 10th April, 1984 and 24th April,

1992 show that it were issued in exercise of the

powers under Section 37(2) and Section 31(1) of the

Act, but the High Court misdirected itself and held

16

the same to have been issued under Sections 31(1)

and 37(2) of the Act respectively.

10. Ms. Vaishali Thorat, however, appearing on

behalf of Respondent No.1 submits that the

notification dated 10th April, 1985 was a final

development plan sanctioned under Section 31(1) of

the Act and without considering the same it has

been modified by the impugned notification dated

24th April, 1992 in exercise of the power under

Section 37(2) of the Act which renders the same

illegal in the eye of law. She further points out

that non-consideration of the notification dated

10th April, 1985, while issuing the notification

dated 24th April, 1992 vitiates the impugned

notification.

11. Rival submissions necessitate examination of

the scheme of the Act. Section 35 of the Act which

17

is relevant for the purpose, reads as follows:

"35. Development plans sanctioned by State Government before commencement of this Act :

If any Planning Authority has prepared a Development plan which has been sanctioned by the State Government before the commencement of this Act, then such Development plan shall be deemed to be a final Development plan sanctioned under this Act."

From a plain reading of the aforesaid

provision, it is evident that the Development plan

sanctioned by the State Government before the

commencement of the Act, shall be deemed to be a

final Development plan sanctioned under the Act.

Making of Development plan requires consideration

of various inputs and for that several bodies have

to be consulted and various steps as provided in

the Act are required to be taken. Naturally it

would take some time. A town cannot exist without a

Development plan, otherwise it would lead to chaos.

No Development plan was made under the Act which

18

came into force on 20th of December, 1966 and hence

the legislature created a legal fiction by enacting

Section 35 of the Act. It provided for assuming a

fact i.e. existence of a Development plan, which

was, in fact, not made in accordance with the

provisions of the Act. It has to be borne in mind

that when a legal fiction is created it shall be

given full effect. Generally legal fiction is

created to advance public policy and preserve the

rights of certain individuals and institutions.

Legal fiction tends to treat an imaginary state of

affairs as real and entails the natural corollaries

of that state of affairs. Hence, the Development

plan, existing prior to the coming into force of

the Act, shall be deemed to be a sanctioned

Development plan under Section 31(1) of the Act.

12. Section 31(1) of the Act inter alia provides

for sanction of the draft Development plan, the

same reads as follows:

19 " 31. Sanction to draft Development plan.

(1) Subject to the provisions of this section, and not later than one year from the date of receipt of such plan from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct, or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan:

Provided that, the State Government may, if it thinks fit, whether the said period has expired or not, extend from time to time, by a notification in the Official Gazette, the period for sanctioning the draft Development plan or refusing to accord sanction thereto, by such further period as may be specified in the notification:

20 Provided further that, where the modifications proposed to be made by the State Government are of a substantial nature, the State Government shall publish a notice in the Official Gazette and also in local newspapers inviting objections and suggestions from any person in respect of the proposed modifications within a period of sixty days from the date of such notice."

The aforesaid provision confers power on the

State Government to sanction the draft Development

plan submitted to it for the whole area or

separately for any part thereof either without

modification or subject to such modifications as it

may consider proper. Therefore, Section 31 of the

Act operates in the field of the power of the State

Government to sanction a draft Development plan.

Under the scheme of the Act, a minor modification

of the Development plan sanctioned under Section

31(1) of the Act is provided under Section 37(2) of

the Act. It reads as follows:

21 "37. Minor modification of final Development plan.

(1) xx xx xx

(2) The State Government may, after making such inquiry as it may consider necessary after hearing the persons served with the notice 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 plan shall be deemed to have been modified accordingly."

From a plain reading of the aforesaid provision

it is evident that the State Government has been

conferred with the power to make minor modification

to the final Development plan. Thus, under the

scheme of the Act, a Development plan sanctioned by

the State Government prior to the commencement of

the Act, shall be deemed to be the final

Development plan and there can be minor

22

modification in such Development plan by the State

Government in exercise of power conferred under

Section 37(2) of the Act. Sanction of draft

Development plan is provided under Section 31(1) of

the Act.

13. Bearing in mind the scheme of the Act, as

aforesaid, we are of the opinion that the

Development plan sanctioned by the State Government

before commencement of the Act, has become final

Development plan under the Act. The Development

plan existing prior to the commencement of the Act

shows that the area in question was reserved for

"playground" which was modified to "school and

cultural society" in exercise of power under

Section 37(2) of the Act and earmarked for the

"school and cultural centre" by notification dated

25th April, 1985. Such a course was permissible

under law. It is the writ petitioner's plea that

23

the Corporation informed it that in the proposed

Development plan the area in question has been

shown as "cricket club and playground". Had the

notification dated 25th April, 1985 been a sanction

of final Development plan, the area in question

ought not to have figured in the draft Development

plan submitted to the State Government. The draft

plan submitted to the State Government was

considered by it and the Development plan dated 24th

April, 1992 was sanctioned. This, in our opinion,

is not the modification of the Development plan but

sanction of the same in exercise of the power under

Section 31(1) of the Act. It seems that the High

Court misdirected itself by considering the

notification dated 10th April, 1985 to be the

sanction of the Development plan under Section

37(2) of the Act and the notification dated 24th

April, 1992 to be the modification of the final

Development plan which has rendered its order

24

illegal. It is trite that the validity of the order

does not depend upon the section mentioned in the

order. Wrong provision mentioned in the order

itself does not invalidate the order, if it is

found that order could be validly passed under any

other provision. However in a case, like the

present one, contrary to what have been mentioned

in the notifications the Court cannot say that such

powers were not exercised to render the

notification illegal if in fact such power exists.

14. It is well settled that the user of the

land is to be decided by the authority empowered to

take such a decision and this Court in exercise of

its power of judicial review would not interfere

with the same unless the change in the user is

found to be arbitrary. The process involves

consideration of competing claims and requirements

of the inhabitants in present and future so as to

make their lives happy, healthy and comfortable.

25 We are of the opinion that town planning requires

high degree of expertise and that is best left to

the decision of State Government to which the

advise of the expert body is available. In the

facts of the present case, we find that the power

has been exercised in accordance with law and there

is no arbitrariness in the same.

15. In the result, the appeal is allowed, the

impugned judgment of the High Court is set aside.

However, there shall be no order as to costs.

CONTEMPT PETITION ) NO.43 OF 2007:

16. In view of the order passed in Civil

Appeal No.2047 of 2007, we are not inclined to

entertain the contempt petition. The Contempt

Petition stands dismissed.

...........................................................J ( MARKANDEY KATJU )

........................................................................J (CHANDRAMAULI KR. PRASAD)

26

NEW DELHI, SEPTEMBER 5, 2011.