Supreme Court of India
SHRI GIRISH VYAS & ANR. .versusTHE STATE OF MAHARASHTRA & ORS.
- Citation
- 2011 INSC 756
- Decided
- 12 October 2011
- Disposal
- Disposed off
- Bench
- R V RAVEENDRAN
Holding
The State Government’s order to shift the reservation under Rule 13.5 was illegal; the Development Plan prevails over the Town Planning Scheme; the land acquisition remains valid; the demolition order is justified; and the direction for criminal investigation is set aside.
Summary
The case concerned a 3,450‑sq‑metre plot (FP No.110) in Pune that was originally reserved for a garden and later for a primary school under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). After the land was acquired, the developer, who was the son‑in‑law of the then Chief Minister, obtained a development permission for a ten‑storey residential building by invoking a State Government order that shifted the reservation under Development Control Rule 13.5, a move challenged in a public‑interest writ petition. The Supreme Court held that the MRTP Act requires any modification of a final Development Plan to be made under Section 37 (minor) or Section 22A (substantial) and that Rule 13.5 could not be used to shift a reservation beyond the statutory limits, making the State Government’s order illegal. The Court affirmed the primacy of the Development Plan over the earlier Town Planning Scheme, upheld the validity of the land acquisition, and confirmed the High Court’s demolition order while setting aside the direction for criminal investigation. The appeals were dismissed and the respondents were ordered to comply with the demolition and other remedial directions.
Issues considered
- The legality of shifting the reservation of a primary‑school plot under Development Control Rule 13.5.
- Whether the Development Plan under the MRTP Act has primacy over an earlier Town Planning Scheme.
- Whether deletion or modification of a reservation can be effected under Section 50, Section 37 or Section 22A of the MRTP Act.
- The effect of a change in public purpose on the validity of land acquisition under Section 126 of the MRTP Act.
- The propriety of directing criminal investigations against the Chief Minister, Minister of State and Municipal Commissioner.
- The existence of mala‑fides in the actions of the political executives and senior officials.
Legislation cited
- Bombay Provincial Municipal Corporations Act, 1949s. 255, s. 45
- Constitution of Indias. Article 136, s. Article 21A, s. Article 226, s. Article 243W, s. Article 45
- Land Acquisition Act, 1894s. 11, s. 12, s. 16, s. 17, s. 4, s. 6, s. 9
- Maharashtra Regional and Town Planning Act, 1966s. 126, s. 128, s. 147, s. 152, s. 154, s. 165, s. 22A, s. 23(1), s. 37, s. 38, s. 39, s. 46, s. 50, s. 54
- Prevention of Corruption Act, 1988s. 13(1)(d)
Subjects
public interest litigationdevelopment plantown planning schemereservation deletionland acquisitionillegal constructiondemolition ordermunicipal corporationmisfeasancemala fides
Judgment
[2011] 12 S.C.R. 781
SHRI GIRISH VYAS & ANR. . A
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 198-199 of 2000)
OCTOBER 12, 2011
B
[R. V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
MAHARASHTRA REGIONAL AND TOWN PLANNING
ACT, 1966:
c
s. 23 (1) read with s. 38 - Revised Development Plan,
and Development Control Rules, sanctioned - Subsequently,
shifting of reservation of a primary school to a far off place,
under D. C. Rule 13. 5 - Held: If the statute provides for doing
a particular act in a specified manner, it has to be done in 0
that manner alone and not in any other manner - In the
instant case, the shifting of reservation to a far off place,
though effected under DC Rule 13.5; was in violation of the
said rule and, as such, could not be justified - Once the State
Government published the draft Development Plan reserving E
the plot for a primary school, any construction contrary thereto
could not be permitted - Development Control Rules - r. 13. 5
s. 39 r/w ss. 59, 46 and 165 - Primacy of Development
Plan over Town Planning Scheme - In Development Plan,
plot reserved for a primary school - Land owner's claim that F
as per Town Planning Scheme, the plot could be used for
residential purposes - Held: Subsequent to the
commencement of MRTP Act, as per s. 39 rlw s. 59 thereof,
a TP Scheme will have to be in consonance with the DP Plan
- s. 39, r/w s. 59 do indicate the superiority of DP Plan over G
TP Scheme - s. 46 indicates that the moment a draft
Development Plan is proposed, permission for contrary
development can no more be granted - Besides, when the
land-owner issued the purchase notice u/s 49 and led the
781 H
782 SUPREME COURT REPORTS [2011] 12 S.C.R.
A State Government and the Municipal Corporation to acquire
the plot, such a plea was never raised - Nor had the land
owner taken any step in pursuance of the erstwhile TP Scheme
- Therefore, the right claimed under the erstwhile TP Scheme
cannot be sustained.
B ss. 50 and 154 - Deletion of reservation - Held: s. 50
provides for deletion of a reservation at the instance of the
authority for whose benefit the reservation is made - In the
instant case, the acquiring body is the Municipal Corporation,
i.e., its general body, which has to be satisfied that the land
C is no longer required for the public purpose for which it is
reserved - The officers of the Planning Authority as well as
of the Government department concerned were not in favour
of deleting the reservation - The application of the landowner
was received directly at the level of the Minister of State and
D it was on latter's direction that the Municipal Commissioner
gave a report which was used by the State Government and
the Chief Minister approved the shifting of the reservation -
The Commissioner's opinfon could not have been treated as
the opinion of the Municipal Corporation, and the State
E Government could not have made any order sanctioning the
deletion of reservation on the basis thereof - s. 154, cannot
save the directions issued by the State Government or the
actions of the Municipal Commissioner in pursuance thereof
ss. 37 and 22A - Development Plan - Modification of -
F Held: The model of democratic planning involves the
participation of the citizens, planners, administrators,
Municipal bodies and the Government - The provisions of the
Act indicate that once the plan is formulated, one has to
implement it as it is, and it is only in the rarest of the rare
G cases that one 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
resort to any of the D. C. Rules - All these constituents of the
H planning process have to follow the mandate u/s. 37 or 22A,
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 783
& ORS.
as the case may be, if any modification becomes necessary. A
s. 126 - Acquisition of land - Change of purpose during
acquisition - Applicability of Land Acquisition Act - Held:
MRTP Act is a self-contained code and in the scheme of said
Act substantive provisions of L.A. Act are not applicable - In 8
the instant case, the letter of the landowner had led to the
subsequent steps for acquisition - s. 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 Authority - Though the civil C
court has held the acquisition for the changed purpose under
the D.P Plan as bad in law, 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 - In the instant case, the acquisition cannot be said to
be invalid on account of change of purpose during acquisition D
- Besides, the civil suit itself was not maintainable - The
appeal of the Municipal Corporation has been directed by the
Higb- Court to be revived. _.
CONSTITUTION OF /NOIA, 1950: E
Article 226 - Writ petitions in public interest alleging
illegal shifting of reservation of a primary school from a plot
and granting permission to develop the plot for private
residences - Held: The development permission is granted
F
by-passing the objections of the department of the
Government and the Municipal Corporation, and flouting all
relevant provisions of law - The Municipal Corporation was
asked to withdraw the appeal against the judgment holding
that acquisition has lapsed - This is not a case where
permission was sought for the construction under erstwhile G
T.P. scheme, or uls. 50 of the MRTP Act - This is a case
where the personal relationship of the developet with the then
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 H
784 SUPREME COURT REPORTS [LU'l'I j 12 S.C.R.
A benefit a close relative of the Chief Minister- It is a clear case
of ma/a fide exercise of powers and, therefore, High Court was
perfectly justified in canceling the development permission
which was granted by the State Government - Consequently,
the construction put up on the basis of such permission had
B to be held to be illegal - Maharashtra Regional and Town
Planning Act, 1966.
Article 226 -Writ petitions - Strictures passed by High
Court - Held: The then Minister of State acted clearly against
C the provisions of law though he was fully informed about the
same - He was aware about the land owner's connection with
the developer and latter's relationship with the then Chief
Minister, and acted for the benefit of the developer at the
instance of the Chief Minister, as has rightly been inferred by
the High Court - The Chief Minister's relationship with the
D developer is established - The basic order granting no
objection to an illegal action is signed by the Chief Minister
himself - The strictures passed by the High Court against the
then Chief Minister and the then Minister of State are
maintained - However, though the acts of the Municipal
E Commissioner clearly amounted to failure on his part to
discharge his duty correctly, but as he had no personal interest
in the matter and was acting under the directions of his
superior, the remarks against him are deleted.
F Article 226 - Direction by High Court to initiate criminal
proceedings against the persons responsible - Held: High
Court itself did not attribute any personal motive to the
Municipal Commissioner and the Minister of State -
Therefore, direction for criminal investigation against them
G cannot be sustained - Though the conduct on the part of the
then Chief Minister prima facie amounts to misfeasance, but
as there is no prima facie finding in the judgment rendered
way back in 1999, the direction of the High Court to make
criminal investigations through an impartial agency cannot be
sustained and is set aside.
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 785
& ORS.
Articles 226 and 136 - High Court directing removal of A
illegal construction of residential apartments raised on a plot
reserved for a primary school - Held: The ten storied building
meant for private sale must 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 B
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 c
of construction of the building - It will, therefore, be open to
the developer to redeem himself by offering the entire building
to the Municipal Corporation for being used as a primary
school or for the earmarked purpose, free of cost - Directions
for taking the necessary steps in this behalf within the
0
stipulated frame, given - As regards the tenants, who belong
to economically weaker section of the society and were
occupiers of the erstwhile plot, Municipal Corporation has no
objection in their continuance in the premises meant for them, · ·
but they shall now continue in the building as tenants of the · E
Municipal Corporation for residential purpose - Public
Interest Litigation.
PUBLIC INTEREST LIT/GA TION:
Locus standi - Writ petition in public interest alleging
F
illegal shifting of reservation for a primary school - Held:
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 - By its very nature the PIL is inquisitorial in
character - Access to justice being a Fundamental Right and G
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 H
786 SUPREME COURT REPORTS (2011] 12 S.C.R.
A 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 and if the
Government action is found to be contrary to law or affecting
the rights of citizens, the court is required to intervene - In the
B instant case, there was sufficient foundation in the petition for
further steps to be taken by High Court- Constitution of India,
1950 - Article 226.
URBAN DEVELOPMENT:
C Town Planning - Role of Municipalities, responsibilities
of Municipal Commissioners, other Government Officers and
Political Executives - Explained - Public amenities
earmarked in Development Plan - Deletion or modification
of- Safeguards laid down - Maharashtra Regional and Town
D Planning Act, 1966 - Constitution of India, 1950 - Chapter
IX A - Article 243W
A plot of land (FP No. 110) admeasuring 3450 sq.
meters, situate in the prime area of the city and reserved
under the Development Plan, 1966 for public purpose,
E namely, garden/play ground, was, pursuant to the
purchase notice u/s 49 of the MRTP Act, 1966, given by
its owner, notified on 27.8.1981 for acquisition u/s 126 of
the Act read with s. 6 of the Land Acquisition Act, 1894.
In the final Development Plan, 1987, the said plot was
F reserved for a primary school. However, on 21.8.1996 the
then Chief Minister approved the shifting of reservation
on F.P. 110 to another plot. This was given effect to by
the Government in its letter/order dated 3.9.1996 to the
Commissioner of Municipal Corporation. Accordingly,
G Commencement (of construction) Gertificates dated
28.8.1996 and 3.5.1997 and the Occupation Certificate
dated 20.12.1997 were issued in respect of FP No. 110.
Two writ petitions were filed in public interest stating that
F.P. No. 110 was de-reserved and permitted to be
H developed for private residences by flouting all norms
GIRISH WAS & ANR. v. STATE OF MAHARASHTRA 787
& ORS.
and mandatory provisions. The High Court allowed the A
writ petitions and directed to cancel the Commencement
Certificates and the Occupation Certificate and to remove
the construction raised on the plot. The State Government
was also directed to initiate criminal investigation against
the then Chief Minister, the then Minister of State for B
Urban Development Department and the then Municipal
Commissioner.
Disposing of the appeals, the Court
HELD: c
Shifting of reservation under DC Rule 13.5:
1.1. Chapter-Ill of the Maharashtra Regional and Town
Planning Act, 1966 on Development Plans requires the
sanctioned plan to be implemented as it is. There are only D
two methods by which modifications of the final
Development Plan can be brought about. One is where
the proposal is such that if will not change the character
of the Development Plan, which ·is known as minor
modification [s. 37]. The other is where the modification E
is of a substantial nature [ss.22-A and 29]. There is also
one more analogous provision, though it is slightly
different: the one, for deletion of the resel'Vation where
the appropriate authority (other than the planning
authority) no longer requires the designated land for the F
particular public purpose, and seeks deletion of the
reservation thereon [s.50]. [Para 47] [839-D-F]
1.2. In the instant case, the Government's action to
shift the reservation from F.P. No. 110 is under r.13.5 of
Development Control Rules [DC Rule 13.5) and not u/s. G
37 of the MRTPAct. Under D.C. Rule 13.5, shifting of the
reservation 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, H
788 SUPREME COURT REPORTS [2011] 12 S.C.R
A (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
B 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.
[para 49 and 58] [839-G; 840-A·D-F; 848-H; 849-A]
C Primacy of Development Plan over Town Planning
Scheme:
2.1. Inasmuch as the action of the State Government
could not be defended under D.C. Rules, 135, the
appellants claimed for the first time before the High Court
D that under the erstwhile Town Planning Scheme, FP 110
could be developed for residential purposes irrespective
of subsequent reservation for a public purpose on the
plot under the Development Plan. It is significant to note
that right from 8.5.1979, when the landowner issued
E purchase notice, and led the State Government and PMC
to acquire the plot of land, this plea was never raised.
[Para 59 and 61) [849-C-D; 850-F]
2.2. Section 39 lays down that the T.P. Scheme is to
F be varied suitably in accordance with the D.P. Plan u/s.
92 of the Act. Thus, s. 39 read with s. 59 do indicate the
approach of legislature, namely, superiority of the D.P.
plan over the T.P. scheme. Subsequent to the
commencement of the MRTP Act, a T.P. Scheme will have
to be in consonance with the D.P. Plan. The Planning
G Authority cannot act contrary to D.P. plan and grant
Development permission to defeat the provision of the
D.P. plan. Once the State Government published the draft
Development Plan on 18.9.1982, providing for the
reservation for a primary school on F.P. 110, any
H construction contrary thereto could not be permitted.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 789
& ORS.
This can only be the interpretation of the provisions A
contained ins. 39 read with ss. 43 and 165 of the MRTP
Act. [Para 63,64, 66 and 71] [852-H; 853-A; 854-C; 856-A;
855-F; 858-H; 859-A]
Gordhanbhai Vs. The Anand Municipality & Ors. XVI
(1975) Gujarat Law Report 558 - held inapplicable 8
2.3. It is significant to note that the landowner had not
taken any step in pursuance to the erstwhile T.P. scheme
nor had he objected to the changes brought in by the
authorities by following the due process of law. Thus, in C
view of the provisions of ss. 39, 42 and 46, the scheme
of the Act and the judicial pronouncements, 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. Merely because o
under the erstwhile Town Planning scheme residential
use was permissible, it cannot be supposed to be saved
u/s. 165 (2) of the MRTP Act. Besides, independent of
one's right either under the D.P. Plan or the T.P. Scheme,
one ought to have a permission for development granted E
by the planning authority traceable to an appropriate
provision of law. In the instant case there is none. [Para
78 and 84] [865-F; 871-8-E]
Reserve Bank of India Vs. Peerless Corpn. 1987 (2)
SCR 1 =AIR 1987 SC 1023=1987 (1) sec 424; Raju S. F
Jethmalani Vs. State of Maharashtra 2005 Suppl. (1)
SCR 1 = 2005 (11) SCC 222 - held inapplicable .
Rusy Kapadia v. State of Maharashtra 1998 (2) ALL MR
181; and lndirabai Bhalchandra Bhajekar Vs. The Pune G
Municipal Corporation and Ors., 2009 (111) Born LR 4251 -
referred to
2.4. It is also material to note that though subsequent
to the Government orders, Commencement Certificates H
790 SUPREME COURT REPORTS [2011] 12 S.C.R.
A were issued, there was no order specifically setting aside
the earlier order of the City Engineer of PMC passed u/s.
45 of the MRTP Act rejecting the building permission by
his letter/order dated 6.11.1995. There is no such specific
mention of reversal of the order dated 6.11.1995 even in
8 the order of the State Government dated 3.9.1996. [Para
80] [866-H; 867-A-B]
2.5. 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
C made. 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.
D 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 Government
E department concerned were not in favour of deleting the
reservation. The Commissioner's opinion could not have
been treated as the opinion of PMC. The State
Government could not have made any such order
sanctioning the deletion of reservation on the basis of
F the report of the Municipal Commissioner. [Para 81] [868-
E-H; 869-A·B]
2.6. The provisions of law cannot be disregarded and
ignored merely because what was done, was being done
at the instance of the State Government. Section 154,
G which provides for directions or instructions to be given
by the State Government for efficient administration of
the Act, cannot save the directions issued by the State
Government or the actions of the Municipal
Commissioner in pursuance thereof. [Para 82] [870-B-D]
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 791
& ORS.
2.7. The direction given by the State Government-for A
the deletion of reservation on F.P. No.110, and. the
commencement and occupation certificates issued by
Pune Municipal Corporation in favour of the developer
were in complete subversion of the statutory
requirements of the MRTP Act. The development B
permission was wholly illegal and unjustified. The order
of the 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, c
rightly held that the action taken by the Planning
authority was not legal and justified. [Paras 83 & 157]
[870-F-H; 935-H; 936-A-B]
3.1. In Gimar Traders case this Court has held that
in the scheme of the MRTP Act, the provisions of Land D
Acquisition Act would apply only until the making of the
award u/s. 11 of the Act; and that MRTP Act is a self-
contai ned code and ss. 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 E
the instant case, the letter of the landowner had led to the
subsequent steps for acquisition. 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 Authority. F
Therefore, in /DI Co.'s case it was held that in the scheme
of MRTP Act, it is not necessary that the original public
purpose should continue to exist till the award was made
and possession taken. [Para 85, 89 and 95] [872-B; 874-
H; 875-A; 880-H; 881-A-E] G
Municipal Corporation of Greater Bombay vs. Industrial
Development Investment Co. Pvt. Ltd. And Ors. (1996) 11
SCC 501; and Gimar Traders (3) Vs. State of Maharashtra
& Ors. 2011 (3) SCR 1 = 2011 (3) SCC 1 - relied on.
H
792 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Industrial Development & Investment Company Pvt. Ltd.
Vs. State of Maharashtra 1988 Mh.LJ 1027 - stood
overruled.
Santu Kisan Khandwe Vs. Special Land Acquisition
Officer No. 2 Nasik & Ors 1995 (1) Mh.LJ 363 - disapproved
8
Special Land Acquisition Bombay Vs. Mis Godrej &
Boyce 1988 (1) SCR 590 =AIR 1987 SC 2421 -
distinguished
c Ghulam Mustafa Vs. State of Maharashtra 1977 (1)
SCR 875 =1976 (1) SCC 800; Mangat Oram Vs. State of
Orissa 1977 (2) SCR 666 =1977 (2) SCC 46; State of
Maharashtra Vs. Mahadeo Deoman Rai 1990 (2) SCR
533 =1990 (3) SCC 579; Collector of 24 Parganas Vs. La/it
D Mohan Mullick 1986 (1)· SCR 271 =1986 (2) SCC 138 and
Ram Lal Sethi Vs. State of Haryana 1990 Supp. SCC 11 -
referred to
3.2. The acquisition of the land, in the instant case,
cannot said to be invalid on account of change of
E purpose during acquisition. Though, 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,
in view of the decision of this Court in Dhirendra Kumar's
F case, the civil suit itself was not maintainable in the
instant case. It is stated that an application has already
been filed for restoration of the appeal against the
decision of the civil court. [Para 97, 99 and 107] [883-C;
883-H; 884-A-B; 892-F-H; 893-A·D; 895-G-H; 896-A·B]
G
Conduct of land owner/Developer:
4.1. 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
H subsequently for a primary school, nor did he challenge
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 793
& ORS.
the acquisition. He merely demanded compensation at a A
higher rate. When the notice to take possession was
given, it is the tenants alone who filed suits challenging
the acquisition. It was in Civil Suit No. 397 of 1988 filed
by the tenants that on 2.4.1988 the prayer of the land
owner for transposing himself as a plaintiff was allowed. s
The civil court having held that the acquisition had
lapsed due to the change in purpose of acquisition (from
what it originally was in 1966), the PMC filed an appeal.
In 1995 the land-owner appointed the son-in-law of the
then Chief Minister as a developer and another power of c
attorney 'SKK' 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 O.P. Plan
itself), and the Minister used this information to get a
report from the Municipal Commissioner who suppressed
0
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 u/s. 37
(leave aside s. 22A), ors. 50 of the Act which was invoked
for the first time in this Court (and which otherwise also E
could not be applied). The order of deletion was passed
under D.C. Rule 13.5 which had no application. [Para 99
and 103] [883-H; 8S4-A-D; 885-B-D; 893-A-D]
Conduct of the Minister of State for UDO. the then Chief
Minister, and the Municipal Commissioner : F
4.2. 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. In view of the direction of the Minister of State, the
Municipal Commissioner, who was the Chief Executive G
of PMC and an officer of a high rank, was asked to make
a report after personally making a site inspection. Such
a direction is quite unusual and disturbing and is not
expected. The Municipal Commissioner, in his letter dated
17.4.1996, though reiter~ted the earlier stand of PMC, but H
794 SUPREME COURT REPORTS [2011] 12 S.C.R.
A volunteered to add that private institutions may not come
to F.P. 110 to set up a primary school and PMC may as
well spend its funds elsewhere. This was not correct,
since applications of two reputed educational institutions
for this very plot were pending with PMC, and this fact
B was not stated by the Commissioner in his report. The
UDO did not accept the proposal of shifting the school
from F.P. 110 to a place far away, but the Minister of State
did not approve the note. The events in the matter
disclose that although the officers of UDO and the PMC
C 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 Minister 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,
0
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
E 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 u/s. 37 of the
F 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. The Municipal
G Corporation was instructed to withdraw the First Appeal
which it had filed to challenge the decision of the civil
court in favour of the landowner in the matter of
acquisition. It is material to note that after the Municipal
Commissioner sent his report dated 17.4.1996, the Private
H Secretary to the then Chief Minister called for the file.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 795
& ORS.
After all necessary directions were complied with, the A
Chief Minister placed his approval on 21.8.1996. 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 UDO dated 29.7.1998, but he was
also associated with the decision making process and B
the directions issued all throughout. [Para 100, 101 and
102] [887 -C-F-H; 888-A-B-E-F; 891-C-H; 892-A-D]
5.1. This is not a case where permission was sought
for the construction under erstwhile T.P. scheme, or u/s.
50 of the MRTP Act. This is a case where the personal C
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. The development D
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 E
acquisition has lapsed. It is a clear case of ma/a 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 _ F
either under Rule 6.6.2.2 or u/s. 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, the judgment of the Division Bench of the G
High Court holding that the disputed construction by the
developer was totally illegal and that there was nothing
wrong with the acquisition of F.P. No.110, is upheld as
- fully justified in law and in the facts of the case. [Para 104-
106) [893-E-H; 894-A-G; 895-A] H
796 SUPREME COURT REPORTS [2011] 12 S.C.R
A 5.2. In view of the gross illegality in the order of the
State Government and PMC in granting the development
permission, the direction for cancellation of
Commencement Certificates and Occupation Certificate
had to be issued and the same can not be faulted. It was
B noted by the High Court that the PMC had been forced
by the State Government to apply for withdrawal of its
appeal so that the judgment of the civil court remains
undisturbed. Since the High Court came to the
conclusion that there was nothing illegal about the
c acquisition, the appeal had to be restored. The direction
is, therefore, fully justified. PMC has already filed an
application for restoration of the appeal. [Para 107] [895-
G-H; 896-A-B]
Order passed by the Division Bench of the High Court:
D
5.3. The direction (b) in the impugned order to
demolish the disputed building was issued basically on
two grounds. Firstly, the development permission had no
legal validity whatsoever, and secondly it was clearly a
E 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 appeal,
F since the construction was absolutely illegal. There is no
redeeming feature whatsoever in the instant 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. The High
G Court was right in its conclusion. [Para 108, 109 and 112]
[896-C-D; 897-A-B; 899-B-C]
Pratibha Cooperative Housing Society Vs. State of
Maharashtra 1991 (2) SCR 745 = 1991 (3) SCC 341; M./
Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors. 1999 (3)
H SCR 1066 = 1999 (6) sec 464 - relied on
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 797
& ORS.
5.4. The ten storied building meant for private sale A
must 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 s
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 the building. It will, therefore, be open
to the developer to redeem himself by offering the entire c
building to PMC for being used as a primary school or
for the earmarked purpose, free of cost; Directions for
taking the necessary steps in this behalf within the
stipulated frame, given. [Para 158] [936-H; 937-A-C]
5.5. The building constructed for the tenants is meant D
for accommodating them, the developer and PMC have
no objection to the retention of the building constructed
for the erstwhile occupants of the plot. However these
occupants, who belong to economically weaker section
of the society, will now have to continue in that building E
as tenants of PMC, for residential purpose, and they may
not be entitled to receive any monetary compensation.
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. [Para 113] [899-D-H; 900-A- F
C]
5.6. 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 G
decided in accordance with law. [Para 159] [937-D]
Adverse remarks by High Court and its direction for
criminal investigation:
6.1. As regards the defence of the Municipal H
798 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Commissioner, firstly, when he made his report dated
17.4.1996 to the Minister of State, he overlooked the fact
that the reservation on the plot in question was for a
primary school, and not merely for a municipal primary
school. Two private schools had already come up on the
B adjoining plots as per the D.P. provision itself. Besides,
two renowned educational institutions had applied for
this plot of land for running of schools thereon. The
Commissioner did not place this very vital information
before the Minister for Urban Development in his report.
c 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. Both these acts
on the part of the Municipal Commissioner clearly
0
amounted to failure on his part to discharge his duty
correctly. 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 remarks
E against the Municipal Commissioner are, therefore,
deleted. [Para 117, 118 and 162] [902-G-H; 903-A-E-H; 904-
A; 939-H]
6.2. As regards the direction to initiate appropriate
F investigation, it has to be seen that as far as the
Municipal Commissioner is concerned, though the
Division Bench did not approve his conduct and squarely
criticized him, yet it observed that it did not attribute any
motive to him for his actions. That apart, s. 147 of the
G MRTP Act 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. Section 486 of the B.P.M.C. Act 1949 is also to the
H similar effect. The Division Bench of the High Court has
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 799
& ORS .
.
also clearly stated that it did not accept the suggestion A
in the writ petitions that the Commissioner was willingly
a party to the process of abuse of executive powers.
Therefore, it would not be correct to direct any criminal
investigation against the then Municipal Commissioner.
[Para 137) [920-C-G-H; 921-A-B] B
6.3. The Division Bench observed that initially the
Minister of State was also of the view that s. 37 of the
MRTP Act should be followed and the departmental note
was in fact as per the initial stand taken by the Minister C
of State, yet he declined to approve the note. The stand
of the Minister of State that until the last he had no
knowledge of land owner's connection with the son-in-
law of the Chief Minister can not be accepted. He acted
clearly against the provisions of law though he was fully
informed about the same. The natural inference which D
flows from all this conduct is that right from the
beginning, the Minister of State was aware about land
owner'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 E
inferred by the Division Bench. There is no reason to
disagree. The remarks against the Minister of State are,
therefore, sustained. [Para 119- 121) [904-D-F; 906-F]
6.4. Though the Division Bench commented F
adversely on the conduct of the Minister of State, yet it
also observed that there was nothing on record that he
had any personal motive in the matter. The Division
Bench has, thus, specifically inferred that whatever he
has done, was done to oblige his senior Minister i.e. the G
then Chief Minister. In the circumstances, he is entitled
to a benefit of doubt and, therefore, the direction for
criminal investigation against him can not be sustained.
[Para 138) [921-F]
6.5. The two writ petitions contain serious allegations H
800 SUPREME COURT REPORTS [2011] 12 S.C.R.
A against the then Chief Minister. It is alleged that the Chief
Minister misused his executive powers and authority for
the purpose of securing benefits for his near relatives,
and it is specifically stated that this was for ensuring a
substantial monetary benefit for them. It is evident, on
B 24.4.1996 the initial report IJlade 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
C Chief Minister himself. 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 Chief Minister to enable him to answer the
probable questions concerning this matter in the
assembly. Thus, it is quite clear that he was aware about
0
the developments in the matter, and the orders therein
were issued with his approval and knowledge. The record
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. The relationship
E is established. He cannot, therefore, escape the
responsibility for all the illegal actions in this matter. This
Court, therefore, refuses to expunge any of the remarks
made against him by the High Court. [para 122, 124, 130
and 135] [906-G-H; 907-A-G; 910-F; 916-D; 919-E-G]
F
State of U.P. Vs. Mohammad Nairn 1964 SCR 363 =
AIR 1964 SC 703; and P.K. Dave Vs. Peoples' Union of Civil
=
Liberties (Delhi) & Ors. 1996 (2) Suppl. SCR 770 996 (4)
sec 262 - relied on.
G 6.6. The conduct on the part of the then Chief Minister
prima-facie amounts to a misfeasance. However, in order
to indicate that misfeasance on the part of the Chief
Minister and the Minister of State amounts to a criminal
misconduct u/s 13(1)(d) of the Prevention of Corruption
H Act, 1988, there is neither any such reference to this
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 801
& ORS.
section nor any prima facie finding in the impugned A
judgment rendered way back in 1999. In the
circumstances in view of the proposition of law
enunciated in the case of Common Cause, a Registered
Society, the direction of the High Court to make criminal
investigations through an impartial agency, cannot be B
sustained and is set aside. [Para 142) [923-F-H; 924-A]
Common Cause, A Registered Society Vs. Union of India
=
& Ors. 1999 (3) SCR 1279 1999 (6) sec 667 - relied on
7.1. Public interest litigation is not in the nature of C
adversarial litigation, but it is a challenge and an
opportunity to the government and its officers to make
basic human rights meaningful. By its very nature the PIL
is inquisitorial in character. Access to justice being a
Fundamental Right and citizen's participatory role in the D
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 E
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. [Para 132) [917-
D-G]
7.2. The petitions before the High Court were in the F
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 G
sufficient foundation in the petition for the further steps
to be taken by the High Court. 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
H
802 SUPREME COURT REPORTS [2011] 12 S.C.R.
A called for the relevant files from the State Government and
the PMC to explain and defend their decisions. [Para 131
and 134] (916-G-H; 917-A-D]
Jasbir Singh Chhabra Vs. State of Punjab 2010 (4) SCC
192 - Distinguished
8
Approach towards the planning process:
8.1. The significance of planning cannot be
understated. The model of democratic planning involves
c the participation of the citizens, planners, administrators,
Municipal bodies and the Government as is also seen
throughout in the MRTP Act the provisions whereof
indicate that once the plan is formulated, one has to
implement it as it is, and it is only in the rarest of the rare
0 cases that one 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
E constituents of the planning process have to follow the
mandate u/s. 37 or 22A as the case may be if any
modification becomes necessary. [Paras 145 & 146] (925-
E-G; 926-D-E]
Chairman, Indore Vikas Prodhikaran Vs. Pure Industrial
F Coke & Chemicals Ltd. & Ors. 2007 (6) SCR 799 =2007 (8)
sec 705 - relied on.
"Jawaharlal Nehru and the Planning Commission"
published by Indian Institute of Public Administration in
G September, 1964 - referred to.
8.2. The municipalities which are the planning
authorities for the purpose of bringing about the orderly
development in the municipal areas, are given a status
under Part IX A of the Constitution. Article 243W lays
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 803
& ORS.
down the powers of the Municipalities to perform the . A
functions which are listed in the Twelfth Schedule. For
performing these functions, planning becomes very
important. These are the statutory powers, and they
cannot be bypassed. The Ministers, the Corporators and
the administrators including the Municipal Commissioner B
must act with responsibility to protect the interest of the
Corporation. [Para 147, 148 and 150) [927-A-C; 928-F-H]
8.3. The MRTP Act gives a place of prominence to the
spaces meant for public amenities, which are essential C
for a good civic life and cannot be sacrificed. Similar are
the provisions in different State Acts. Yet, cases are being
noticed, as is seen in the instant case, that the spaces
for the public amenities are under a systematic attack.
Time has, therefore, come to take a serious stock of the
situation. When the land is reserved for a public purpose D
after following the due process of law, the interest of the
individual must yield to the public interest. [Para 151]
[931-A-F]
8.4. As far as the MRTP Act is concerned, there is a E
complete mechanism for the protection of the spaces
meant for public amenities. Their deletion or modification
should be resorted to only in the rarest of rare case, and
after fully examining as to why the plot concerned was
originally reserved for a public amenity, and as to how F
its deletion is necessary. Safeguards have been laid
down in the judgment so that such kind of gross
deletions do not occur in future, and the provisions of the
Act are strictly implemented in tune with the spirit behind.
It is also made clear that any unauthorised construction G
particularly on the lands meant for public amenities must
be removed forthwith. It is expected that the guidelines
laid down in this behalf would be followed scrupulously.
[para 15.3 and 161] [931-G-H; 932-A-D, E; 938-C]
Raju S. Jethmalani Vs. State of Maharashtra 2005 H
804 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Suppl. (1) SCR 1 = 2005 (11) sec 222 - relied on
Case Law Reference:
XVI (1975) Gujarat Law Report 558 h e I d
inapplicable Para 72
B
1987 (2) SCR 1 referred to Para 74
1998 (2) ALL MR 181 referred to Para 75
2005 Suppl. (1) SCR 1 held inapplicable Para 76
C 2009 (111) Born LR 4251 referred to Para 76
1988 Mh.LJ 1027 stood overruled Para 87
1995 (1) Mh.LJ 363 disapproved Para 87
D 1988 (1) SCR 590 distinguished Para 89
2011 (3) SCR 1 relied on Para 95
1977 (1) SCR 875 referred to Para 96
1977 (2) SCR 666 referred to Para 96
E
1990 (2) SCR 533 referred to Para 96
1986 (1) SCR 271 referred to Para 96
1990 Supp. sec 11 referred to Para 96
F
1991 (2) SCR 745 relied on Para 110
1999 (3) SCR 1066 relied on Para 111
2010 (4) sec 192 Distinguished Para 134
G 1964 SCR 363 relied on para 135
1996 (2) Suppl. SCR 770 relied on para 135
2005 Suppl. (1) SCR 1 relied on Para 138
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 805
& ORS.
1999 (3) SCR 1279 relied on Para 141 A
2007 (6) SCR 799 relied on Para 146
CIVIL AP PELLATE JURISDICTION : Civil Appeal No. 198-
199 of 2000.
B
From the Judgment and Order dated 6, 8, 9, 10, 11, 12
and 15 March 1999 of High Court of Bombay in writ Petition
Nos. 4433 and 4434 of 1998.
WITH
c
Civil Appeal Nos. 196-197, 2450, 2102-2103, 2105-2106 and
2120 of 2000.
V. Tulzapurkar, Shekhar Naphade, P.S. Narsimha, Shyam
Divan and S.S. Sanyal, Purnima Bhat. E.C. Agrawala, Javaid 0
Muzaffar, Pankaj Sutter, Umesh Kumar Khaitan, D.M.
Nargolkar, Shakil Ahmed Syed, Makarand D. Adkar, Braj K.
Misra, Vijay Kumar and Vishwajit Singh for the Appellants.
Ramesh P. Bhatt, Kailash Vasdev S.K. Dholakia, P.V.
Yogeswaran, Jayashree Wad, Ashish Wad, Tamali Wad, Chiraf E
S. Dave, Sameer Abhayankar, J.S. Wad & Co. Ravindra
Keshavrao Adsure, A.P. Mayee, Charudatta Mahendrakar,
Sanjay Kharde, Arun R. Pedneker, Chinmoy A. Kaladkar and
Asha Gopalan Nair for the Respondents.
F
The Judgment of the Court was delivered by
H.L. GOKHALE J. 1. What is the nature and significance
of the planning process for a large Municipal town area? In that
process, what is the role of the Municipal Corporation, which
is the statutory planning authority? Can the State Government G
interfere in its decisions in that behalf and if so, to what extent?
Does the State Government have the power to issue
instructio,A"s to the Municipal Corporation to act in a particular
manner contrary to the Development Plan sanctioned by the
H
806 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B instruct it to grant a development permission for residential
purposes thereon without modifying the Development Plan?
Could it still be considered as an action following the duG
process of law merely because a provision of Development
Control Rules is relied upon, whether it is applicable or not?
C Or where the Municipal Corporation is required to take such
contrary steps, supposedly on the instructions of the concerned
Minister I Chief Minister, for the development of a property for
the benefit of his relative, would such instructions amount to
interference/ma/a fide exercise of power? Is it permissible for
D 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
E 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
F 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
G 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
H the Bombay High Court. These writ petitions bearing nos.4433
GIRISH VYAS & ANR. v.· STATE OF MAHARASHTRA 807
& ORS. [H.L. GOKHALE, J.]
and 4434 of 1998 were filed respectively by one Vijay Krishna A
Kumbhar, a journalist and one Nitin Duttatray.a 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 B
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. c
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 D
from 14.03.1995 till January 1999. The petitioners contended
that only because of the instructions from the Urban
Development Department (UDO 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
E
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 ma/a fide. After F
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 constructed
in the meanwhile. The State Government has been directed to G
initiate criminal investigation against Shri Manohar Joshi, Shri
Ravindra Murlidhar Mane, the then Minister of State for UDO,
and the then Pune Municipal Commissioner Shri Ram Nath
Jha.
H
808 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8
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
C 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, UDO. These appeals seek to expunge the adverse
D 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
E property. They contend that in the scheme prepared by the
developer, they were to become owners of their tenements
whereas under the original reservation, they were to be evicted.
We may note at this stage that though the PMC accepts
the judgmerit, it has no objection to the tenants continuing as
F 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
G 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
H well as by the PMC and the State Government. It is relevant to
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 809
& ORS. [H.L. GOKHALE, J.]
note that the State of Maharashtra as well as PMC had A
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 B
Vyas as the lead appeals.
Facts leading to these appeals
Reservation on F.P. No. 110 for a garden
c
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 D
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 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 E
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 F
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. G
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 H
810 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
c had not been changed, and 'the reservation will never be
cancelled and the final plot will 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
0
approach their office.
Steps for acquisition of F.P. No. 110
7. The standing committee of the PMC thereafter passed
E 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
F 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
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 811
& ORS. [H.L. GOKHALE~ J.]
tenants filed a common claim statement and objected to the A
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 objections of the B
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. c
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, D
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 E
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 F
Minister of State for UDO, 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 landownerdid G
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. 273 of 1983 by order dated 15.4.1988, but H
812 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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.
B
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
C 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
D 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
E 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
F 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.
G The modification with respect to these three plots was as
follows:-
"Reservation continued. Development allowed as
per note 4".
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 813
& ORS. [H.L. GOKHALE, J.]
Note 4 reads as follows:- A
"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
8
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. C
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.
1
111. Be sides, a primary school was set up by Symbiosis
International Cultural and Educational Centre ('Symbiosis' for 0
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 E
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 F
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
S.L.A.O., and seeking an injunction to protect their possession.
The Court granted the interim injunction as sought. Thereafter G
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 H
814 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
C 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. 18615of1994 on 18.7.1994, alongwith
D 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
E 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 these
petitions has directed the PMC to move an Application before
the High Court for reviving the First Appeal (Stamp No.18615
1
F 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
G 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
H consequent upon the elections to the State Assembly, a new
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 815
& ORS. [H.L. GOKHALE, J.]
Government came in power in the State of Maharashtra in A
March 1995, and Shri Manohar Joshi took over as the Chief
Minister (hereinafter referred as the then Chief Minister). He
retained with himself the UDO portfolio. The earlier referred Shri
Ravindra Mane became the Minister of State for UDO
(hereinafter referred to as the then Minister of State). On B
20.10.1995 the landowner entered into a Development
agreement with Mis 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 c
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 0
developer agrees to get the clearance under the Urban Land
(Ceiling and Regulation) Act 1976 which may be necessary,'
and for that purpose he was authorised to get any scheme
sanctioned. M/s Vyas Constructions is stated to have settled
the claim of above referred Shri Mukesh Jain. On the same E
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 F
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 G
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 H
816 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 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
B charitable trust).
16. At this stage, landowner's Attorney holder, Shri Shriram
Karandikar wrote to the Minister of State for UDO on
20.11.1995 seeking a direction to the Municipal Commissioner
C to sanction landowner's aforesaid application dated 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.
D
Processing of the application dated 20.11.1995 on
behalf of the landowner at the level of the State
Government
E 17. In their petitions to the High Court, the writ petitioners
made the allegation of ma/a tides on the part of the then Chief
Minister and the Minister of State for UDO in entertaining the
application made on behalf of the landowner. It, therefore,
became necessary for the Division Bench of the High Court to
F 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
G 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
H concerned Department, but directly to the Minister of State for
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 817
& ORS. [H.L. GOKHALE, J.]
UDO, which fact is noted by the Division Bench in its judgment.· A
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 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 B
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 c
Engineer of PMC, Deputy Director of Town Planning, Pune, as
well as by Shri Karand.ikar and his advocate, but what
happened in that meeting is not reflected in this file.
Initial Stand of Urban Development Department and
PMC D
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. E
Thereafter it gives the initial opinion of the U.D. Department at
the end of the note, which is as follows:-
"ln this regard it is the advice of the department that,
acquisition has been done after taking action on. the F
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." G
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 H
818 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Shri Karandikar and his advocate, high ranking officers such
as (i) Secretary, UDO, (ii) Director, Town Planning, (iii)
Commissioner, PMC, (iv) City Engineer, PMC and (v) Under
Secretary, UDO were present in the meeting. The minutes of
the meeting are recorded by the Under Secretary.
B
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,
C 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, UDO as to whether the advocate was pleading on
D behalf of the tenants or the landowner, to which the Advocate
replied that he was pleading for the landowner. The Secretary,
UDO 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
E 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,
F 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 initia.ted by the
tenants, he pointed that PMC had filed an Appeal in the Bombay
G 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
H de-reserved in an appeal under Section 47. It required an
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 819
& ORS. [H.L. GOKHALE, J.]
action in the nature of modification under Section 37 of the A
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. B
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, C
and the Corporation may not need this land. The note records
that in view of this submission, the Minister of State, UDO
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 D
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 tiim. If PMC did not have any objection to
reduce the area under reservation, Government will issue the E
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 general body) was necessary to either delete the
reservation, or to reduce the area under reservation. F
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, arid to forward his opinion. He was also asked
to inform as to when had the PMC filed its· appeal in the G
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 H
820 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8
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
C 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
D 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
E Government, it was necessary to 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
F 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
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 821
& ORS. [H.L. GOKHALE, J.)
accordingly. He recorded that on inspection following facts were A
mainly noted:-
"1. There are about 36 temporary Houses on the land. ·
2. Out of the total area nearly half is encumbered.
B
3. Two Educational Institutions in the vicinity of the
School.
4. There are 11 Educational Institutions in the vicinity
of the School.
c
5. Except the temporary Houses on this property the
development of the area is planned and
corporation has control over
it."
D
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 E
to above. The Municipal Commissioner then gave his opinion
that development of a primary school on 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 F
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- G
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 H
822 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 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
8
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,
C 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
D 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 has accepted
E 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
F 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
G not be reserved in development plan for school or some
other purpose."
Thereafter his letter stated as follow:-
"/f first proposal is to be accepted for developing
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 823
& ORS. [H.L. GOKHALE, J.]
school on remaining area question regarding decision of A
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:- B
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 C
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. o
Then the Commissioner added:-
Prior to t~is since no such settlement matters have taken
place regarding the development plan of Pune Municipal
Corporation, the experience of Pune Municipal E
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." •
F
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
G
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 H
824 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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,
B Planning and Urban
Development Government of
Maharashtra"
31. On receiving the above reply dated 17.4.1996 from
C t{lunicipal 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:-
D
"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
E 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
F 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
G
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
H further considering that there are numerous schools in the
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 825
& ORS. [H.L. GOKHALE, J.]
vicinity of the said property, there should be no objection A
to consider and approve on government level the
alternative No.1 suggested by 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 B
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 c
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 D
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 E
Pune Development Control Rules).
12. Proposal in paragraph 10 submitted for
approval."
The note was countersigned by Shri Deshpande,
F
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 G
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. H
826 SUPREME COURT REPORTS [2011] 12 S.C.R. ..
A 32. Thus there was once again a discussion with the
Minister of State, UDO 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 rn.eeting and
B signed it on 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.
c 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:-
D "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
E 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
F light of above discussion. Shri Ghadge recorded this
suggestion in his letter dated 20.6.1996 addressed to the
Mu'licipal Commissioner.
33. The Municipal Commissioner then wrote back to the
Under Secretary, UDO by his letter dated 15.7.1996, pointing
G 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
H Government will have to be obtained for such a modification.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 827
& ORS. [H.L. GOKHALE, J.]
34. On receiving this letter from the Municipal A
Commissioner, Shri Ghadge once again put up a detailed note
and at the end of para 8 thereof stated as follows:-
"Con sidering the above circumstances and
especially 'A" on 12 T.V. and Bon 14 T.V., there could be 8
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 C
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 D
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 E
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 F
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]. G
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. H
828 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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:-
B "Sd/-
2617196
(P.V. Ghadge)
Under Secretary
Sd/-
c 26/7/96
(Shri Deshpande)
Deputy Secretary Town Planning
Sd/-
D 26/7/96
Additional Chief Secretary, (U.D.)
Sd/-
30/7/96
Hon'ble Minister of State (U.D.)
E Received
31/7/96
All action be taken in accordance with law. No objection.
Sd/-
F 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, UDO sent a letter/
order dated 3.9.1996 to the Commissioner containing exactly
G 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
H as follows:-
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 829
& ORS. [H.L. GOKHALE, J.]
"ENGLISH TRANSLATION OF STATE A
GOVERNMENT LETTER DA TED 03/09/1996
(MAHARASHTRA STATE)
No. TPS-1896/102/
MatterNo.7/96/U.D.-93 B
Urban Development
Department Mantralaya,
Mumbai 400 032 c
Date : 3rd September, 1996
To,
The Commissioner
Pune Municipal Corporation
D
Pune
Sub: Development Permission of T.P. Scheme No.1,
Final Ploat
No.110.
Ref: Request Application dated 20/11/95 by Shri E
Shriram Karandikar to Minister of State for Urban
De_velopment for Development in the subject
matter.
Sir, F
I have been ordered by the State Government to
communicate to you the following directives.
1. The Pune Municipal Corporation should recover
from the landowner according to the land G
acquisition law the principal amount paid for
acquisition of Final Ploat No.110, Erandwane
along with construction, with interest thereon at
12%.
H
830 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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.
Yours faithfully,
G Sd/-
Vidyadhar Deshpande
Deputy Secretary"
Notings from the Municipal Files:-
H 36. Thereafter we have the notings from the Municipal files
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 831
& ORS. [H.L. GOKHALE, J.]
which show that consequently the City Engineer has written to A
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 B
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 f9r deleting
Survey No.261 Hissa 2/1 at Lohegaon, Hadapsar from the c .
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 D
of PMC will be required for entering into an agreement for
deleting the reservation of plot at Erandawana. With respect
toJhe same the commissioner has recorded,as follows:-
"However, since the State Government has given clear E
orders to take action under Rule 13.5 of the Development
Control Rules of Pune for complying with the subject matters
and since directives have been given for making such change,
no permission of the Pune Municipal Corporation is necessary".
F
Subsequent Developments
38. Consequently, the subsequent steps have been taken.
The landowner has returned the amo1,mt as sought, a deed of
settlement has been entered into between the landowner and
the PMC, and Commencement Certificates have been issued G
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 H
832 SUPREME COURT REPORTS (2011] 12 S.C.R.
A 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
8
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
C 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
D school constructed at _Dattawadi (instead of Lohegaon) in lieu
of the school reservation on plot no. 110 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
E 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
F 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.
G
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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 833
& -ORS. [H.L. GOKHALE, J.]
mentions that there has been substantial criticism in local A
newspaper about this matter. It is stat~d 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. B
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 that in the meanwhile the proposal to c
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 D
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
p"rior thereto, the information provided and points
suggested by Municipal Corporation with respect to the E
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 F
of Legislative Assembly." ·
41. On receiving the developer's letter dated 15.7.1998,
the Commissioner once again wrote to Under Secretary UDO
on 23. 7.1998 suggesting acceptance of the two proposals of G
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 UDO dated
24.7.1998 that the application of Rule 13.5 in the matter under
question was not legal. As the note states:-
H
834 SUPREME COURT REPORTS [2011] 12 S.C.R.
A "....... 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
B when the reservation is to be shifted within a distance of
200 mfrs. 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
c in Sec. 37 of the Maharashtra Regional and Town
Planning Act, 1966 would have been taken ...... "
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.
D
" ...... After considering this issue the following
opinion is being expressed on the proposal of Pune
Municipal Corporation.
(1) Commissioner; Pune Municipal Corporation to take
E
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.
F (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
G 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
H as stipulated in (1) above.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 835
& ORS. [H.L. GOKHALE, J.]
(3) As per the earlier instructions, the Pune Municipal A
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. B
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 c
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
0
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 fo.und necessary
and as may be recommended by the Education E
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 F
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 Promoter after completing the actions as stipulated
in para No. 1 and 2 subject to the rules and provisions in G
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 H
836 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B Municipal Corporation is put up at Page No. /PV.
The above proposal will be issued on the same being
approved.
Submitted for orders.
c Sd/-
27.7.98
(Vidyadhar Deshpande)
Dy. Secretary.
Sd/-27. 7.1998"
D
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
E 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
F is as follows:-
'Proposal of Department approved. Orders be issued':-
"Sd/-
28.7.98
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 837
& ORS. [H.L. GOKHALE, J.]
reservation on F.P. No. 11.0 under DC Rule 13.5 to Mundhawa A
instead of Lohegaon. Thereafter he stated in f)ara 2 as follows:-
"......... Now the Developer has shown his readiness
to make available land at Mundhawa. Therefore, in your
leMer you have sought approval to recover the proper
8
amount required for the construction of 500 sq.mtrs, after
taking action sf'ated 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 C
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.
D
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 E
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 F
28.11.1996 for constructing a buHding 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 G
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 H
838 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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 had started from March 1997
and was substantially completed, only a direction was given in
B 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
c 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?
D
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
E 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
F 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
G 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 the need
for the public amenities. The planners consider the difficulties
H presently faced by the citizens, make rough estimate of the
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 839
& ORS. [H.L. GOKHALE, J.]
likely growth of the city in near future and provide for their A
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 B
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 c
process under Section 28 of the Act. This being the position,
Chapter-Ill 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 D
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 E
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) no longer requires the designated land for
the particular public purpose, and seeks deletion of the F
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 G
Section 37.
DC Rule 13.5 reads as follows:-
"13.5 If the land proposed to be laid out is affected
. by any reservationls or public purposels authority may H
840 SUPREME COURT REPORTS [2011] 12 S.C.R.
A agree to adjust the location of such reservationls to suit
the development without altering the area of such
reservation. Provided however, that no such shifting of the
reservationls shall be permitted.
(a) beyond 200 m. of the location in the Development
B
Plan.
(b) beyond the holding 9f the owner in which such
reservation is located, and
c (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.
D 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
E 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
F shifting of the reservation from F.P. No. 110 to a far off place
could not be justified under D.C. rule 13.5.
Minor Modifications
50. Section 37 of the MRTP Act, reads as follows:-
G
"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 chanQe the character of s11cb
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 841
& ORS, [H.L. GOKHALE, J.]
Development plan, the Planning Authority may, or when so A
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 8
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. C
[(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.] D
[(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 E
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 F
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 G
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. H
842 SUPREME COURT REPORTS . [2011] 12 S.C.R.
A (c) The State Government shall, after giving hearing
to the affected persons and the Planning Authority
and after making such inquiry as it may consider
necessary and consulting the Director of Town
Planning, by notification in the Official Gazette,
B 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
c 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,
D Clearance and Redevelopment) Act, 1971(Mah. XXV-111 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
E 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
F 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
G 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
H.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 843
& ORS. [H.L. GOKHALE, J.]
sanctioned, the final Development Plans shall be deemed A
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 8
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 C
Corporation, since this function is not permitted to be delegated
to anybody else under Section 152 of the Act. Thereafter the
Planning Authority has to publish a notice in the official gazette
inviting the objections and suggestions from the public with
respect to the proposed modification. It is also required to give
a notice to all the persons affected by the proposed D
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 E
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 F
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 G
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,
H
844 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
s the public at large by publishing the notification in the Official
Gazette, plus it has to issue a specific notice to the persons
affected by the proposed modification, and last but not the least
it has to consult the Director of Town Planning before arriving
at its decision. In the present case nothing of the kind has been
c 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
D 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
E 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
F 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
G
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:-
H "22A. Modifications of a substantial nature
I
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 845
& ORS. [H.L. GOKHALE, J.]
'' '
In section 29 or 31, the expression "of a substantial nature" A
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,- 8
(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 C
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 D
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 E
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 certairi F
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 G
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;
H
· 846 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (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 pi..blished with modification under section 29 or 31,
as the case may be.]."
8 Additional requirement of notice in local newspapers
before effecting modifications of substantial nature:-
55. The modification under Section 22A requires following
of the procedure under Section 29 of the MRTP Act. It lays down
C 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:-
D
"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
E 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
F 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."
G
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
H Municipal area a reduction of more than 50 per cent would be
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 847
& ORS. [H.L. GOKHALE, J.]
considered as a substantial modification. In B & C class A
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 C!re B
considered a substantial change.
(c) where there is an actually existing site reserved for a
public amenity, except for marginal area upto two hundred
square metres required for essential public amenities or utility C
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.
D
(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. E
Importance given to the spaces reserved for public
amenities
57. As we have noted, all such substantial modifications F
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 G
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 H
848 SUPREME COURT REPORTS {2011] 12 S.C.R.
A 22A give importance to retention of places reserved for public
amenities. Sub-section (b) deals with a reduction of any 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 resented for a public amenity (other than
B marginal area upto 200 sq. metres requifed for..essential public
amenities or utility services for q. 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
c 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
D
polytechnics, clinics, dispensaries and hospitals, water
supply, electricity supply, street lighting, sewerage,
drainage, public works and includes other utilities, services
and conveniences]."
E 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
F 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
G to follow the procedure to deal with the suggestions and
objections laid down while finalizing the draft Development Plan
under Section 28 of the Act? Whether the shifting of this
reservation is covered under Section 37 or Section 22A is a
moot point to consider. One thing is however very clear, that it
H could not be justified under D.C. Rule 13.5. If the statute
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 849
& ORS. [H.L. GOKHALE, J.]
provides for doing a particular act in a specified manner, it has A
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 B
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?
c
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 D
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 E
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 F
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 Act the previous schemes were saved. G
The erstWhile Town Planning scheme as varied, was sanctioned
by the State Government w.e.f. 15. B.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 H
850 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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.
c
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
D 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
E 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 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
F 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
G 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.
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA· 851
& ORS. [H.L. GOKHALE, J.]
Relevant provisions of the Act in the context of the A
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 B
established forthat 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. c
Schemes are made in the propermanner and their
execution is made effective,
(3) to provide for the creation of new towns by means
of development authorities,
D
(4) to make provisions for the compulsory acquisition
of land required for public purposes in respect of
>·the plans, and
..
(5) for purposes connected with the matters aforesaid . E
63. (i) Chapter I of the Act contains the Preliminary
provisions. Chapter II of the Act is concerning the Regional
Plans. Chapter Ill is about the Development Plan, and Chapter
IV about Control of Development and Use of Land included in F
Development Plans. Chapter Vis 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 G
'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.
Se-ction 2 (19) defines the Planning .Authority to mean a
local authority, and it includes some other specified H
852 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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.
B (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:-
c
"39. Variation of town planning scheme by Development
Plan.
Where a final Development plan contains proposals
D 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
E 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
F 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
G 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.
H 64. As noted above, Section 39 lays down that the T.P.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 853
& ORS. [H.L. GOKHALE, J.]
Scheme is to be varied suitably in accordance with the D.P. A
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 B
(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, C
prepare one or more town planning schemes for the area
within its jurisdiction, or any part thereof;
(b) a town planning scheme may make provision for
any of the following matters, that is to say- D
(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; E
(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
F
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 H
854 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 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.
8 scheme is to be prepared "subject to the provisions of th is 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".
C 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) ·
D (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
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
E 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.
F It is contended that if the purpose of the T.P. Scheme is c;mly
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
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 855
& ORS. [H.L. GOKHALE, J.]
there is no conflict between the T.P. scheme and the A
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. B
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 c
become necessary while seeing to it that the T.P. scheme is
in consonance with the Development Plan. Section 59 (2) will
only mean that the legislature has given an elbow room to the
planning authority to amend the Development Plan if that is so
necessary, so that there is no conflict between the T.P. Scheme D
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. E
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 F
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 G
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 H
856 SUPREME COURT REPORTS (2011] 12 S.C.R.
A 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 plann_ing
authority. The Planning Authority cannot act contrary to D.P. plan
and grant Development permission to defeat the provision of
8 the D.P. 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 Ill of the Act, namely
the Development Plan. Section 46 of the Act also lays down
c 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
D 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
E 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:-
F "(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."
G 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
H T.P. scheme are on par.
GIRISH VYAS &. ANR. v. STATE OF MAHARASHTRA 857
& ORS. [H.L. GOKHALE, J.]
68. Now, it is material to note that sub-sections (1) to (5) A
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 B
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 c
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) D
cannot be lostsight 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 E
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 F
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.
G
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
H
858 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
c 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
D 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
E 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
F 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 Dholakia,
G 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
H the State Government published the draft Development Plan on
--
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 859
& ORS. [H.L. GOKHALE, J.]
18.9.1982, providing for the reservation for a primary school, A
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:- B
"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 C
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 D
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 E
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 F
suspension of rule, bye-law, regulation, notification or order
made, any purchase notice served on a local authority and
the interest of the owner compulsorily acquired or deemed
to be acquired by it in pursuance of such purchase notice,
. any revision of development plan, any appointment made
of Town Planning Officer, any proceeding pending before, G
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
H
860 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
C 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
D 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
E 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 case). The respondents pointed out that the regulations
F . 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
G 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
H P!=!rmission for construction in the particular case could not be
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 861
& ORS. [H.L. GOKHALE, J.]
faulled. It was in this context that the Division Bench observed A
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, B
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:- C
(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 D
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 provision in the T.P. scheme, which
is basically with the object of implementing the proposals jn the E
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.
F
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 G
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 H
862 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 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
B 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 0. Chinnappa Reddy J. in para
C 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 -
"33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may
D 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 statut~ is best
interpreted when we know why it was enacted. ·with this
E 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-
m a ke r, provided by such context, its scheme, the
F 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
G
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."..... .
H (emphasis supplied)
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 863
& ORS. [H.L. GOKHALE, J.]
75. The counsel for the landowner criticised the impugned A
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 B
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 c
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 the T.P. scheme the use for residential purpose was
0
permissible, and since the T.P. scheme was sanctioned
subsequ"ent 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 E
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 F
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 G
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." H
864 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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. 8.S. Muddapa reported in [1991
(4) sec 54] to emphasize the importance of protecting
environment. The High Court quashed the decision of the
B 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
c 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 noted
that the observations in Bangalore Medical Trust were in the
D 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
E 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
F 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
G 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
H are approved in the presently impugned judgment, and have
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 865
& ORS. [H.L. GOKHALE, J.]
been once again reiterated by another Division Bench of the A
Bombay High Court in lndirabai Bha/chandra Bhajekar Vs.
The Pune Municipal Corporation and Ors., reported in [2009
( 111) Born LR 4251]. Having noted the inter-relation amongst
the various sections of the statute, in our view; it cannot be said
that the T.P. scheme is either superior or of equal strength as B
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 C
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 (TOR) as provided under Development D
Control Regulations framed later in 1991. This Court declined
to accept the submission of the appellant. It was held that the
appella_nt will be eligible only for the benefits un.der the T.P.
scheme, since the acquisition of his land was to implement the
same. The D.C. Regulations of 1991 had come subsequently. E
·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. F
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 G
submission in this behalf cannot be accepted.
Additional submissions in this Court in defence of the
Government Order:-
79. The appellants came up with some more submissions H
866 SUPREME COURT REPORTS [2011) 12 S.C.R.
A 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
B
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
c 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.
D
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."
E
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'.
F 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.
G 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,
H there was no order specifically setting aside the earlier order
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 867
& ORS. [H.L. GOKHALE, J.]
of the City Engineer of PMC passed under Section 45 of the A
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 B
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 C
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:- D
"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 E
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- F
(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 G
(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 H
868 SUPREME COURT REPORTS [2011] 12 S.C.R.
•
A Authority, the Planning Authority, or as the case may be,
the State Government may make an order sanctioning the
deletion of such designation or reservation or allocation
· from the relevant plan:
B 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.
c (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
D 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 Appr0priate authority (other
than the planning authority) for whose benefit the reservation
E 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
F 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
G 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
H department were not in favour of deleting the reservation. The
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 869
& ORS. [H.L. GOKHALE, J.]
Commissioner's opinion could not have been treated as the A
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 B
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 C
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 D
(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 E
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, F
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 G
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 reservation for a public park was sought to be shifted H
; 70 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
s 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
c 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
0
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
E 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
F 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 Government
dated 3.9.1996 cannot be traced to any legitimate source of
power, and therefore, the situation cannot be remedied by
G 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
H because basically the decision itself was illegal.
GIRlSH VYAS & ANR. v. STATE OF MAHARASHTRA 871
& ORS. [H.L. GOKHALE, J.]
84. Thus the submission canvassed on behalf of the A
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 B
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 C
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 D
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. Scheme, one ought to have a permission for
development granted by the planning authority traceable to an E
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 F
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 G
appellants in defence of the decision of the State Government
are devoid of any merit and deserve to be rejected.
H
872 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
C 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, since the order of the Civil Court is sought to be defended
D 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
E 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
F 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
G 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
H upon on behalf of the appellants i.e. Industrial Development
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 873
& ORS. [H.L. GOKHALE, J.]
& Investment Company Pvt. Ltd. Vs. State of Maharashtra A
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 B
vesting. As far as the first judgment of the High 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. c
& Ors. reported in 1996 (11) sec 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 0
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., E
the other Learned Judge deciding the l.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, F
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:- G
"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 H
874 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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 same
land for its staff quarters then such a purpose must be
B 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
c 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 .......... "
D
89. The appellants relied upon the judgment of this Court
in Special Land Acquisition Bombay Vs. Mis Godrej & Boyce
reported in AIR 1987 SC 2421, in support of their contention,
that the purpose for acquisition must continue until possession
E 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 l.D.A Co's case
F (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 /.0./ 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)
G 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 SA
of the L.A. Act. Section 126 (1) (c) specifically states that when
H an application is made to the State Government for acquiring
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 875
& ORS. [H.L. GOKHALE, J.]
the land under the L.A. Act, the land vests absolutely with the A
Planning 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.
B
90. The observations of K. Ramaswamy, J. in paragraph
11 of the judgment in l.D.A. Co's case (supra) are relevant in
this behalf. This para reads as follows:-
"11. If we turn to Chapter Ill of the MRTP Act, we find
that the entire machinery is provided for preparation, C
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, D
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 E
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 F
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 G
becomes a substitute for Section 4(1) notification under
the Act. ft 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
H
876 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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 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
C (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
D Development or any other plan or Town Planning Scheme,
any land is required or re~erved 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,
E 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
F
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
G determined by any of the said Authorities concerned on
the basis of the principles laid down in the Land
Acquisition Act, 1894(1of1894), Floor Space Index (FSI)
or Transferable Development Rights (TDR) against the
area of land surrendered free of cost and free from all
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 877
& ORS. [H.L. GOKHALE, J.]
encumbrances, and also further additional Floor Space A.
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
B
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894(1
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 C
Index or Transferable Development Rights under this
section or under the Land Acquisition Act, 1894(1 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.] D
(2) On receipt of such application, if the State Government
is satisfied that the land specified in the application is
needed for the public purpose therein specified, or [if the
State Government (except in cases falling under section E
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(1of1894), in F
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), G
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.]
878 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (3) ...... ..
(4) ........ "
92. Section 128 of the MRTP Act strengthens the view that
we are taking. Section 128 deals with a situation where the
8 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:-
c "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
D
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
E 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(1 of 1894).
F [(1A) Save as otherwise provided in this Act or any
other law for the time being in force where any land
included in any 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
G or Appropriate Authority, is being acquired by the State
Government under the provisions of the Maharashtra
Industrial Development Act, 1961 (Mah. Ill 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),
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 879
& ORS. [H.L. GOKHALE, J.]
the provisions of sub-sections (2) and (3) of this section A
shall mutatis mutandis, apply to such acquisition
proceedings.] .
(2) In the proceedings under the Land Acquisition
Act, 1894(1 of 1894), the Planning Authority, or 8
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 C
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 D
the Land Acquisition Act, 1894(1 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. E
(3) On the land vesting, in the State Government
under sections 16 or 17 of the Land Acquisition Act, 1894(1
of 1894), as the case may be, the [relevant plan or scheme]
shall be deemed to be suitably varied by reason of F
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 G
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 under H
880 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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.
8
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
C 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
D 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
E 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.
F (ii) Thus the MRTP Act contains a separate scheme in
Chapter VI I of the Act distinct from the one in L.A. Act. This
is because MRTP Act is a special act enacted for the
purpose of planned development and the provisions
concerning land acquisition are made therein in that
G 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
H make the award) in Gimar Traders (3) Vs. State of Maharashtra
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 881
& ORS. [H.L. GOKHALE, J.]
& Ors. reported in 2011 (3) SCC 1, that only the provisions with A
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 s
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 c
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 D
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 /.D.A. Co's case (supra) contended that the E
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 down by this Court in Ghu/am Mustafa . F
Vs. State of Maharashtra reported in 1976 ( 1) SCC 800,
Mangat 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. La/it
Mohan Mullick reported in 1986 (2) SCC 138, and Ram Lal G
Sethi Vs. State of Haryana reported in 1990 Supp. SCC 11.
97. It is relevant to refer to these judgments. Ghu/am
Mustafa (supra) & Mangat Oram (Supra) were both cases
concerning the acquisition under the Land Acquisition Act. In
H
882 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B
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."
c
In Mangat 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
D 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
E (3) sec 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 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
F 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.
G 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.
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 883
& ORS. [H.L GOKHALE, J.]
The acquisition validly made does not become invalid by A
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 e).Cist till the award was made and possession
taken." B
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 1.0./. Co. (supra)
and Santu Kisan Khandwe (supra) do not lay down the correct
position of law. We are in respectful agreement with the opinion C
rendered by K.Ramaswamy J. in /.0./. 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 D
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 the
remedies to the aggrieved parties. In State of Bihar Vs. E
Ohirendra 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 F
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.
G
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
H
884 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8
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
c 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,
D the landowner replied the same but 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.
E
(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.
F
(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
G 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
H vacated, the tenants represented to the Mini~ter of State
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 885
& ORS. [H.L. GOKHALE, J.]
for UDO, pointing out their difficulties. The landowner did A
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
8
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 Judge, Senior
Division Pune. It was at that stage that the landowner who
was a defendant in that suit, applied for transposing himself C
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. D
{i) After Shri Manohar Joshi took over as the Chief Minister
on 14.3.1995, the landowner entered into a Development
agreement with Mis Vyas Constructions on 20.10.1995.
Besides, he executed two powers of attorney, one in favour E
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 F
last stage when Shri Girish Vyas stepped in.
0) 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 G
UDO 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 H
886 SUPREME COURT REPORTS [2011] 12 S.C.R.
A Minister of State for UDO, and did not bear any inward
stamp of the department. The noting of the Private
Secretary of the Minister of State in UDO in the margin of
the application showed that it was directly received at the
Minister's level. Thereafter as directed by the Minister of
B State, the Under Secretary of UDO immediately called a
meeting of high ranking officers such as Secretary UDO,
Director Town Planning, Commissioner of PMC, City
Engineer of PMC, and Under Secretary UDO, which
meeting would not have been possible unless one had a
c 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
D 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.
E (I) 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
F 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
G
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 appeal under
H Section 47 of the MRTP Act. The landowner and the
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 887
& ORS. [H.L. GOKHALE, J.]
developer have been changing their stand from time to A
time.
The conduct of the Minister of State for UDO, the. then Chief
Minister, and the Municipal Commissioner
100. We may now refer to the conduct of the then Minister B
of State for UDO, the then Chief Minister and the then Municipal
Commissioner.
(a) As stated above the application of the landowner was
received directly at the le'(el of the Minister of State and c
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 UDO such as its
Secretary, in view of the landowner submitting that on the D
adjoining plots schools had been developed, the Minister
of State for UDO 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 E
State for UDO 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.
F
(c) In view of the direction of the Minister of State, the
Municipal Commissioner who is the Chief Executive of
PMC and an I.AS. officer of a high rank was asked to
make a report after personally making a site inspection.
A direction to a high ranking officer to make a site G
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 H
888 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
c 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 th~ MRTP Act as well as the permission
D 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
E perusal. Thus the Chief Minister had kept himself fully
abreast with the developments in this matter.
(g) The UDO 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 department (signed
F 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
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 889
& ORS. [H.L. GOKHALE, J.]
shifting the school from F.P. No. 110, the subsequent note A
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 Miriister (which power is disputed by the
Principal Secretary, UDO in his subsequent note dated
24.7.1998). B
(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 C
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 D
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 E
objection that such permission will require the approval of
the general body of the Municipal 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
F
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.·
G
(I) 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), H
890 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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. 11 O (named
as Sun-Dew Apartment) be issued.
B
(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
c 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.
D
(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
E 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
F 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
G necessary orders be issued to the PMC. Accordingly, the
Deputy Secretary of UDO 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
H building of 500 sq. feet, and to issue the occupancy
GIRISH VYAS & ANR. v. STATE OF. MAHARASHTRA 891
& ORS. [H.L. GOKHALE, J.)
certificate for the Sundew Apartments. A
(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 UDO dated 29.7.1998, but
was associated with the decision making process and the
B
directions issued all throughout.
101. The events in this matter disclose that although the
officers of UDO 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 Minister C
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 D
the permission of the general body of the Municipal Corporation
wiH 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 E
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 F
plot of land in a prime area of the city released from a public
amenify. 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.
G
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 H
892 SUPREME COURT REPORTS [2011] 12 S.C.R.
A or: 21.8.1996 with an apparently innocent remark 'All actions
be taken in accordance with law', though he did not forget to
record "No objection". Thus, the decision of the Government
dated 3.9.1996 to shift the reservation of a primary school from
F.P. 110 under D.C. Rule 13.5 was under his order dated
B 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
c be pointed out by the Addi. 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 UDO on whose direction
the last necessary letter has been sent to PMC by the Deputy
Secretary UDO on 29.7.1998. However this subsequent
0
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.
E 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.
F schem·e 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
G supporting information and, therefore, sought deletion of
reservation on the concerned plot. This is a case where the
landowner never raised either of the two pleas to begin with.·
He was conscious of the fact that the land was reserved for a
public garden in the 1966 D.P. Plan and, therefore, gave a
purchase notice in May, 1979 which was confirmed by the State
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 893
& ORS. [H.L. GOKHALE, J.]
Government in December, 1979. When the D.P. Plan was A
revised during 1982-1987, he never raised any of the above
two submissions. He did not even challenge the subsequent
reser-.ration for a primary school finalized in 1987. Only in 1995
when Shri Mariohar Joshi became the Chief Minister, he
appointed his son-in-law as a developer and another power of 8
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 C
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
0
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 E
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 F
. approaches a close relative of the Chief Minister, 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 G
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 H
894 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8 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 ma/a fide exercise of
C 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
D chapter IV of the act, and in the instant case there is none.
Consequently, the construction put up on the basis of such
permission had to be held to be illegal. In the circumstances,
we uphold the judgment of the Division Bench .as fully justified
in law and in the facts of the case.
E
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
F 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)
G 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).
H
GIRISH 'VYAS & ANR. v. STATE OF MAHARASHTRA 895
& ORS. [H.L. GOKHALE, J.]
(ii) In the first part of its order the Division Bench A
directed:-
(a) the cancellation of the commencement
certificate dated 20.8.1996, 3.5.1997 and
3. 7.1998, and occupation certificate dated B
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 c
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,
D
(c) the PMC to move an application for
restoration of First Appeal (stamp no.18615
of 1994),
--·
and
E
(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 F
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 G
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 H
896 SUPREME COURT REPORTS [2011] 12 S.C.R.
A . 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
B 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
c 108. The direction (b) in the impugned order was issued
basically on two grounds. Firstly, the development permission
had no legal validity whatsoever, and secondly it was clearly a
case of showing favouritism by going out of the way and
circumventing the law. Besides, since the challenge to
D 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.
E
109. The demolition was objected to by the appellants
amongst others on the ground that there was delay and !aches
in moving the petitions to the High Court. It was submitted that
if the petitioners were vigilant, they could have seen the building
F 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
G 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
H was informed by PMC that the same could not be made
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 897
& ORS. [H.L. GOKHALE, J.]
available under the relevant rules, though no such rules were A
' shown to the Division Bench. The High Court has on the other
hand noted that as a matter of fact even the construction of the
building meant for the tenants was actually said to have
commenced in March 1997 only. Hence, in the facts of the
present case it could not be said that the writ petitions suffered B
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 C
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 D
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 E
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 F
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 G
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
H
898 SUPREME COURT REPORTS (2011] 12 S.C.R.
A "Before parting with the case we would like to
observe that this case should be a pointer to all the
builders that making of unauthorised constructions never
pays and is against the interest of the society."
111. The observations of the Court however, have had no
8
effect. In M./ Builders Pvt. Ltd. Vs. Radhey Shyam Sahu &
Ors. reported in 1999 (6) sec 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
C 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
D 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 dis::JUted construction and
observed as follows in para 73 of its judgment:-
E
"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
F 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
G
cannot be guided by expediency. Courts are not free from
statutory fetters. Justice is to be rendered in accordance
with law...... "
(emphasis supplied)
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 899
& ORS. [H.L. GOKHALE, J.]
112. In the present case, one would have thought of A
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 B
apart, such a compounding would have been contrary to the
above dicta in M./ 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 c
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 D
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 E
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 F
proceedings was that they should be accommodated on this
very plot of land. It is another matter that in the High Court and
in this Court they supported the landowner and the developer,
in view of the promise given to them that in the event the
landowner and the developer succeed, the tenants will get G
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 H
900 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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
c 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 I demolition
of the building meant for the persons other than these tenants
(i.e. the ten storey building named as Sundew Apartments).
D 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 litiga!ion of this
E matter. The concerned bank had advanced a loan to the
developer against the security of two flats in that building, and
pt
it !n:t~rvened only at th.e last st~ge passin~ of the order. T~e
D1v1s1on Bench has rightly reie~d the claim of the bank m
paragraphs 224 to 226 of its judgment by observing that the
F court could not accept the contention of the bank that it was not
aware of th~ 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
G 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 i\s claim against the developer
may remain.
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 901
& ORS. [H.L. GOKHALE, J.]
Adverse remarks, and the direction for criminal A
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, B
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 C
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 D
agency, and
(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. E
. 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.
F
Adverse .remarks by the Division Bench
against the Municipal Commissioner~ Minister
of State and the then Chief Minister:-
, I
Adverse remarks aga.inst the Municipal . G
Commissioner
116. Apart from other allegatiorls, it has been specifically
aU,eged 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 H
902 SUPREME COURT REPORTS [2011) 12 S.C.R.
A the law", and "with a view to favour his son-in-law Shri Girish
Vyas acted illegally and ma/a 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
B 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
c 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 administration of the act. The
Division Bench declined to accept this explanation. We have
already dealt with this submission and recorded our reasons
0
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
E 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 Oas Vs. State
of Punjab & Ors reported in 2001 (6) SCC 260 to the following
F 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
H a primary school, and not merely for a municipal primary
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 903
& ORS. [H.L. GOKHALE, J.]
school. As has been noted by the Division Bench, two A
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 iand for running of schools thereon. The
Commissioner did not place this very vital information B
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 his report was "far from truth". c
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.
D
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 E
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 UDO, it was pointed out on behalf of PMC that the land had
been acquired. The Commissioner had also pointed out that if F
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 . G
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
1 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 H
904 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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 Mis Vyas Constructions. The defence of
C 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
D be followed. In this connection, it is relevant to note that after
receiving the letter dated 17.4.1996 from the Municipal
Commissioner, the UDO 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
E 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
F 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 befor~ the
Court.
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 905
& ORS. [H.L. GOKHALE, J.]
the same and has commented on his conduct as follows at the A
end of paragraph 140:-
"....... It is difficult to account for the anxiety of the
Minister of State, UDO, 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 8
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 C
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 ~tage. o
I
(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 E
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? F
(iii) Thirdly, after the Commissioner's report, the UDO
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? G
(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
H
906 SUPREME COURT REPORTS [2011) 12 S.C.R.
A those schools had come up as per the Development plan
itself?
(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.
B
(vi) He tried to put the blame on the Municipal
C:>mmissioner and the Municipal Officers for the decision
a Tived at. It is true that the Commissioner failed in his
::!uties to place full facts on record. At the same time the
c 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 ~uggestions of Shri Karandikar, which led to the
convenient reports cannot be lost sight of. He acted clearly
D 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 b~ aware that the file was called by the
Chief Minister after receiving the report from the Municipal
E Commissioner, and for what purpose?
The natural inference which flows from all this conduct is
that right from the beginning, the Mir1ster of State was
aware about Shri Murudkar's connec .on with the son-in-
F law of Chief Minister, and therefore hf.: 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.
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 907
& ORS. [H.L. GOKHALE, J.]
authority for the purpose of securing benefits for his near A
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:-
B
"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 C
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 D
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 E
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 F
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 G
knowledge. He cannot therefore, escape the responsibility
for all the illegal actions in this matter.
(iii) The learned senior counsel for the then Chief Minister
Shri Shyam Diwan objected to the language used in
H
908 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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.
c 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
D 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
E
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
F 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 matter?" Shri Murudkar was not someone for whom the
G 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
H appointed the son-in-law of the Chief Minister as his developer.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 909
& ORS. [H.L. GOKHALE, J.]
.
(ii) The Division Bench has dealt with the affidavit of the A
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 B
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 na'ive and its
credulousness is stretched to the extreme, the inference C
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."
D
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 E
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 accordance with law.
The note clearly stated that the reservation on the land at F
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 G
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.
H
910 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (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
8 Municipal Commissioner also stated that in case the
change was proposed in the use of the property,
permission had t.J 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
c 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.
D
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
E newspaper. Subsequently, thereafter when the land at
Mundhwa or elsewhere was sought to be exchanged in
place of Lohegaon, the letter of Shri Girish Vyas was
already on the file of the PMC and the Government. Still
he was going to sign note of approval but for the advice
F 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.
G 125. According to Shri Naphade, the learned counsel
appearing for the developer, the inference of ma/a tides 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.
H He emphasized that as per the report (i) There are about 36
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 911
& ORS. [H.L. GOKHALE, J.]
structures on the land which are occupied by tenants; (ii) Half A
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 B
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 our :uance thereof by c
submitting that (i) There is no detriment to Public Interest, as
no Municipal Primary School was required in the locality. (ii)
The Appellant made alternative plot available at his own cost
in the locality where a Municipal Primary School was required.
(iii) The developer paid a sum of Rs. 25 lakhs to the PMC for
0
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 E
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 F
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 G
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 H
912 SUPREME COURT REPORTS [2011] 12 S.C.R
A 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
B always require adjoining plots and are developed accordingly.
The submission that the acquisition had been declared illegal
by the Court was also a very convenient submission ignoring
that the Municipal Appeal therefrom was pending in the High
Court. There was no reason for the Corporation to be deterred
c 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 burder:i 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
D 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
E 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.
F 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
G 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
H that there was no pressure from the office of the Chief Minister
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 913
& ORS. [H.L. GOKHALE, J.]
or for himself. That apart there were cogent factors explaining A
why there was no need for yet another primary school in the
locality and generally the thinking was that public interest would
gain from the proposed course of action.
(ii) As far as this latter submission about there being no
need of one more primary school, one may immediately 8
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 ·C
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.
D
(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.
lmmediateiy a meeting of high ranking officers was called.
lnspite of a clear stand taken by the offices of UDO as well E
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 F
those two schools had come up as per the provisions of
the D.P. pian? The Municipal Commissioner in his report,
and thereafter the officers of the UDO, 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 G
resort to D.C. Rule 13.5 was adopted. During the course
of all these developments the file had been called by the
Secretary to the Chief Minister. Were these not clear
signals to the officers as to what was the interest of the
H
914 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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 narve one will
c 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
D 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 illegaJ action" and this, in our Jiew, is certainly misuse
of executive powers."
E
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 [Al R 1974 SC 555]. Krishna Iyer J. had observed
F in paragraph 92 of his judgment in that matter that "we must
not also overlook that the burden of establishing ma/a fides is
very heavy on the person who alleges it. The allegations of ma/a
fides are often more easily made than proved, and the very
seriousness of such allegations demands proof of a high order
G of credibility." Shri Royappa, while challenging his transfer had
made allegations of ma/a fides against the then Chief Minister
of Tamil Nadu, and this Court had refused to accept those
allegations. The Division Bench noted in the presently
impunged judgment that Shri Royappa was a Chief Secretary,
and hardly any Chief Secretary of a State Government was
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 915
& ORS. [H.L. GOKHALE, J.]
known who would be in any way hamstrung, or stopped from A
getting information or documents on the basis of which he
makes out the case of ma/a fides against the officer holding a
public office. The Division Bench rightly observed at the end
of para 129 as follows:-
8
"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." C
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 D
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 E
Rao, The Division Bench had noted that the single Judge had
followed the tests led down by this Court earlier in State of UP.
Vs. Mohammad Nairn [AIR 1964 SC 703] which were as
follows:-
"10 ....... (a) whether the party whose conduct is in F
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 G
that conduct. It has also been recognized that judicial
pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderatio!l and reserve."
Having approved the approach of the High Court this Court H.
I
916 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B
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
c 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
o 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 muc'.1 earlier. The entire
narration shows that the then Chief Minister had clear
E 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
F preponderance of probabilities.
Appropriate actions taken in a Public Interest Litigation
131. It was contended before the High Court that the rule
as to the construction of pleadings should be strictly applied in
G 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
H interest litigation. The purpose in such matters is to draw the
GIRISH WAS & ANR. v. STATE OF MAHARASHTRA 917
& ORS. [H.L. GOKHALE, J.]
attention of the High Court to a particular state of facts, and if A
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 B
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 C
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 J_urisdiction rightly called
for the relevant files from the State Government and the PMC
to explain and defend their decisions.
D
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 802]. E
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 F
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 G
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.
H
918 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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 pfthis Court in P.K. Dave Vs. Peoples' Union
B 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
C 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 appe~ring on behalf of
D the 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
E 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
F 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
G 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."
H
-GIKl~H VYAS & ANR. v. STATE OF MAHARASHTRA 919
& ORS. [H.L. GOKHALE, J.)
134. Reliance was placed on the judgment of this Court A
1 Jasbir Singh Chhabra Vs. State of Punjab reported in 201 O
--4) sec 192 to submit that the issues and policy matters which
. .re required to be decided by the Government are dealt with
->y several functionaries, some of whom may record notings on
mhe files, and such notings recorded in the files cannot be made B
lasis for a finding of ma/a tides. There can be no dispute with
-he preposition when policy matters are involved as in that case
o\/here the question was whether the State Government's refusal
---:O sanction change of land use from industrial to residential was
-titiated due to ma/a tides claimed to be arising out of such c
"""flotings. In the present case we are concerned with the notings
-not concerning with any policy matter, but with respect to the
-application on behalf of an individual landowner to delete the
-reservation of a primary school on his land, where the developer
-is the son-in-law of the Chief Minister. The notings in the
0
present case are quite clear and the inference of ma/a fides
therefrom is inescapable.
135. We have noted tt:Je 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 E
Chief Minister. The High Court has drawn its inferences and
made the remarks after following the· dicta in State of U.P. Vs.
Mohd. Nairn (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 F
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 G
remarks rendered by the Division Bench.
Orders for Criminal Investigation
136. Having drawn the above inferences, and having made
H
jo.
(
920 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B 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 not approve his
conduct and squarely criticized him for being more loyal to the
C 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
D 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
E 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
F 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."
G 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
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 921
& ORS. [H.L. GOKHALE, J.]
be done under this Act or any rules or regulations made therein. A
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, B
in our view it would not be correct to direct any criminal
investigation against the then Municipal Commissioner, and in
our view to that extent the order of the Division Bench requires
to be corrected.
138. As far as the Minister of State is concerned also, the C
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:- D
"....... 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 E
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 F
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 G
made by Shri Karandikar who was a camouflage for his son-
i n-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 H
922 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B order viz. "all action be taken in accordance with law" 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
c 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
D 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
E 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
F 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.
G
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
H 667. The Minister concerned in that matter had committed the
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 923
& ORS. [H.L. GOKHALE, J.]
misfeasance of allotment of retail outlets of petroleum products A
out of the discretionary quota in an arbitrary and ma/a fide
manner. Such allotments had been set aside by a bench of two
Judges by its judgment between the same parties reported in
1996 (6) SCC 530. The Court had thereafter passed an order
that the Minister concerned shall show cause within two weeks s
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:- c
"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 D
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. E
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."
F
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 G
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 H
924 SUPREME COURT REPORTS [2011] 12 S.C.R.
A any criminal offence has been committed by the aforesaid
respondents in the discharge of their duties, to take action as
is warranted in law.
Epilogue
B 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
c advancement of our society and for an orderly progress, we had
to make a planned effort. Intact, 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
D 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
E 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
F 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.
G 144. Shri H.K. Paranjape, (1924-1993) an eminent
Economist and a former Member of Monopolies and Restrictive
Trade Practices Commission and former Chairman of Railway
Tariff Committee, in his monograph "Jawaharlal Nehru and the
Planning Commission" (published by Indian Institute of Public
H Administration in September, 1964) notes that Nehru linked up
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 925
& ORS. [H.L. GOKHALE, J.]
the work of Planning Commission directly to the Fundamental A
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:- B
"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, C
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 D
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 E
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 F
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
duri!"g the next 10 to 20 years as laid down under Section 38 G
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 H
926 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8 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
C 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
D 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
E have to follow the mandate under Section 37 or 22A as the
case may be if any modification becomes necessary. That is
why this Court observed in paragraph 45 of Chairman, Indore
Vikas Prodhikaran Vs. Pure Industrial Coke & Chemicals Ltd.
& Ors. reported in 2007 (8) SCC 705 as follows:-
. F
"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
G that such planning involving highly complex cities depends
upon scientific research, study and experience and, thus,
deserves due reverence.
(emphasis supplied)
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 927
& ORS. [H.L. GOKHALE; J.]
Role of Municipalities A
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
8
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 C
Schedule contains the following items:-
"TWELFTH SCHEDULE
[Article 243W] D
1. Urban planning including town planning.
2. Regulation of land-use and construction of
buildings.
E
3. Planning for economic and social development.
4. Roads and bridges.
5. Water supply for domestic, industrial and,
commercial purposes. F
6. Public health, sanitation conservancy and solid
waste management.
7. Fire services.
G
8. Urban forestry, protection of the environment and
promotion ofecological aspects.
9. Safeguarding the interests of weaker sections of
society, including the handicapped and mentally H
928 SUPREME COURT REPORTS [2011] 12 S.C.R.
A retarded.
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
B 12. Provision of urban amenities and facilities such as
parks, gardens.playgrounds.
13. Promotion of cultural, educational and aesthetic
aspects.
c .
14. Burials and burial grounds; cremations, cremation
grounds andelectric crematoriums.
15. Cattle ponds; prevention of cruelty to animals.
D
16. Vital statistics including registration of births and
deaths.
17. Public amenities including street lighting, parking
lots, bus stopsand public conveniences.
E 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
F 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
G 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
H Corporation. The Commissioner is expected to place the
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 929
& ORS. [H.L. GOKHALE, J.]
complete and correct facts before the Government when any A
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 protection under
the law. In this behalf, it is worthwhile to refer to the speech of
Sardar Vallabhbhai Patel, the first Home Minister of B
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 C
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 D
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 E
worked, I have no hesitation in saying that they are patriotic,
as loyal and as sincere as myself."
(Ref: Constituent Assembly Debates. Vol.1 O p. 50)
Now unfortunately, we have a situation where the senior officers F
are changing their position looking to the way the wind is
blowing.
Expectations from the Political Execuw.;~
G
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 H
930 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
B
this country along with or even before cleaning the physical
atmosphere. The pollution in our values and standards in
(sic is) an equally grave menace as the pollution of the
environment. Where such situations cry out, the courts
should not and cannot remain mute and dumb."
c
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
D 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
E 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
F 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
G 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
H children.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 931
& ORS. [H.L. GOKHALE, J.]
Importance of the spaces for public amenities A
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 B
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 C
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 D
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 E
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 F
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.
G
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 H
932 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
8 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
C 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
0 as laid down by the law.
Suggested safeguards for the future
153. Having noted as to what has happened in the present
i::
'-
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.
(i) Therefore, when the gazette notification is published,
F 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
G 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
H at prominent place therein.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 933
& ORS. [H.L. GOKHALE, J.]
(ii) Section 29 lays down that after receiving the A
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 B
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 C
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 D
as much as the compensation amount had already been
paid. However, if there is any such difficulty, the planning
authority must call upon the citizens to contribute for the , -
project, in the public notice contemplated under Section
29, in as much as these public amenities are meant for E
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. Jethma/ani Vs. State
of Maharashtra reported in [2005 (11) SCC 222]. F
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, G
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 H
934 SUf>REME COURT REPORTS [2011] 12 S.C.R.
A endeavour to provide, within the period of ten years from the
commencement of the e;onstitution, 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
B 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
F.undamental Right under Article 21A. This Article lays down
C 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 Free and Compulsory
Education Act 2009. All these laws have however not been
D 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.
E
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
F 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
G 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
fo have a functioning democracy."
H The story for Pune city is not quite different. Since the impugned
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 935
& ORS. [H.L. GOKHALE, J.]
development permission given by the Municipal Corporation A
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 B
population. The percentage of literacy has gone up thereafter,
but still we are far away from achieving full literacy and from
the goal of providing quality education and facilities at the
primary level.
156. There is a serious problem of children dropping out C
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 D
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 E
and, therefore, adequate space tor 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 F
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. G
. 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 H
936 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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 PMC have indicated that
B 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
c 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
D 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
E 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,
F 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.
G
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 inform the PMC within two weeks
from today whether he is giving up the claim on the ten storied
H building named 'Sundew Apartments' apart from the tenants'
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 937
& ORS. [H.L. GOKHALE, J.]
building in favour of PMC, failing which PMC will issue a notice A
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 8
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 C
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 D
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 E
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 F
each of them ,to pay to the two petitioners separately towards
the cost of these 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, G
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
H
938 SUPREME COURT REPORTS [2011] 12 S.C.R.
A 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
s 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
C 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
D
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
E
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 subversion of the statutory
requirements of the MRTP Act. The development
F 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
G 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
H
GIRISH VYAS & ANR. v. STATE. OF MAHARASHTRA 939
& ORS. [H.L. GOKHALE, J.)
the plot for a primary school, is liable to be rejected. A
(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. B
(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 C
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 D
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
framed laid down in this judgment.
E
(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 F
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 G
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.
H
940 SUPREME COURT REPORTS [2011] 12 S.C.R.
A (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) sec 667
B
(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
c 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
D the spaces meant for public amenities.
All the appeals stand disposad of as above.
R.P. Appeals disposed of.
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