2011 (10) TMI 729 - SC - Indian Laws

Plot of land - reserved for a public purpose - primary school - development permission - cancel the commencement and occupation certificates - illegal development - a particular plot was initially reserved for a public purpose and subsequently for a primary school. The petitioners contended that only because of the instructions from the Urban Development Department (UDD) that in spite of the reservation for a primary school the plot was permitted to be developed for private residences flouting all norms and mandatory legal provisions. They sought to challenge the building permission which was issued by the PMC under the instructions of the State Government by submitting that these instructions amounted to interference into the lawful exercise of the powers of the Municipal Corporation and the same was mala fide. After hearing all concerned the petitions were allowed and an order has been passed to cancel the Commencement (of construction) certificates and Occupation Certificate and to pull down the concerned building which has been constructed in the meanwhile. The State Government has been directed to initiate criminal investigation against Shri Manohar Joshi Shri Ravindra Murlidhar Mane the then Minister of State for UDD and the then Pune Municipal Commissioner Shri Ram Nath Jha. Being aggrieved by this order the present group of appeals have been filed. The tenants however contend that if the plot of land is taken over by PMC they will remain mere tenants as against the ownership rights which were assured to them by the developer and the landlord and are therefore continuing to maintain their appeals. HELD THAT - Present case is not one 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 relationship of the developer with the Chief Minister was apparently used to obtain permission for construction without following any due process of law. This is a case of rules and procedures being circumvented to benefit a close relative of the Chief Minister. It is a clear case of mala fide exercise of the powers and therefore the High Court was perfectly justified in canceling the development permission which was granted by the State Government. The development permission could not be defended either under Rule 6.6.2.2 or 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 we uphold the judgment of the Division Bench as fully justified in law and in the facts of the case. As far as the building meant for the tenants is concerned the developer as well as PMC have indicated that they have no objection to the building being retained. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money and in a way could be considered to be far more than the cost of construction of this building. All the appeals stand disposed of

Summary

Issues Involved:
1. Nature and significance of the planning process for a large Municipal town area.
2. Role of the Municipal Corporation as the statutory planning authority.
3. Extent of State Government's power to interfere in Municipal Corporation's decisions.
4. Legality of State Government's instructions to Municipal Corporation contrary to the Development Plan.
5. Legality of shifting reservation for a public amenity without modifying the Development Plan.
6. Legality of State Government's instructions for development of a property for the benefit of a relative of the Chief Minister.
7. Permissibility of defending a Government decision based on a provision in the erstwhile Town Planning Scheme.
8. Permissibility of justifying a Government decision under a statute section not invoked by the Government.
9. Inference regarding the role of ministers and municipal officers in such situations.
10. Appropriate orders when such facts are brought to the notice of the High Court in a Public Interest Litigation.

Detailed Analysis:

1. Nature and Significance of the Planning Process:
The planning process for a large Municipal town area is significant as it involves the participation of town planners, architects, and officers of the Planning Authority and the State Government. The process is designed to address the current and future needs of the citizens and to provide for public amenities. The Development Plan, once sanctioned, is expected to be implemented over the next 20 years.

2. Role of the Municipal Corporation:
The Municipal Corporation, as the statutory planning authority, plays a crucial role in the planning process. It is responsible for preparing, revising, and implementing the Development Plan. The Municipal Corporation must act in accordance with the provisions of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) and cannot deviate from the sanctioned plan without following the due process of law.

3. Extent of State Government's Power:
The State Government has limited power to interfere in the decisions of the Municipal Corporation. Any modification of the Development Plan must follow the procedures laid down in the MRTP Act. The State Government cannot issue instructions to the Municipal Corporation that are contrary to the Development Plan without following the statutory procedures for modification.

4. Legality of State Government's Instructions:
The State Government's instructions to the Municipal Corporation to shift the reservation for a public amenity such as a primary school and to grant development permission for residential purposes without modifying the Development Plan were found to be illegal. Such actions must follow the procedures under Section 37 or Section 22A of the MRTP Act.

5. Legality of Shifting Reservation Without Modifying the Development Plan:
Shifting the reservation for a public amenity without modifying the Development Plan is not permissible under the MRTP Act. The Development Control Rule 13.5, which was relied upon by the State Government, does not allow for shifting the reservation beyond 200 meters of the original location or outside the holding of the owner. The proper procedure for modification must be followed.

6. Legality of Instructions for Development for the Benefit of a Relative:
The instructions from the State Government to the Municipal Corporation to act in a manner that benefited the relative of the Chief Minister were found to be a mala fide exercise of power. The actions were taken to favor the developer, who was the son-in-law of the Chief Minister, and were not in accordance with the law.

7. Permissibility of Defending Government Decision Based on Erstwhile Town Planning Scheme:
The argument that the landowner retained the right to develop the property for residential purposes under the erstwhile Town Planning Scheme, despite the subsequent reservation for a public amenity in the Development Plan, was rejected. The Development Plan overrides the Town Planning Scheme, and any modification must follow the procedures laid down in the MRTP Act.

8. Permissibility of Justifying Government Decision Under a Different Statute Section:
The attempt to justify the Government's decision under a different section of the statute, which was not invoked by the Government, was not accepted. The decision must be traceable to a legitimate source of power, and in this case, it was not.

9. Inference Regarding the Role of Ministers and Municipal Officers:
The High Court drew adverse inferences against the then Chief Minister, the Minister of State, and the Municipal Commissioner for their roles in the illegal actions. The Chief Minister and the Minister of State were found to have misused their powers to benefit the developer, while the Municipal Commissioner failed to discharge his duties correctly.

10. Appropriate Orders by the High Court:
The High Court ordered the cancellation of the development permissions, directed the demolition of the illegal construction, and called for an investigation into the conduct of the Chief Minister, the Minister of State, and the Municipal Commissioner. The order for criminal investigation was later modified to align with the judgment of the Supreme Court in Common Cause, A Registered Society Vs. Union of India.

Conclusion:
The Supreme Court upheld the High Court's judgment, emphasizing the importance of adhering to the statutory procedures in the planning process. The judgment serves as a reminder of the need to protect public amenities and the integrity of the planning process from misuse of power and favoritism.