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TMI Blog2011 (10) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... what extent? Does the State Government have the power to issue instructions to the Municipal Corporation to act in a particular manner contrary to the Development Plan sanctioned by the State Government, and that too a number of years after the Municipal Corporation having taken the necessary steps in consonance with the plan? Can the State Government instruct a Municipal Corporation to shift the reservation for a public amenity such as a primary school on a plot of land, and also instruct it to grant a development permission for residential purposes thereon without modifying the Development Plan? Could it still be considered as an action following the due process of law merely because a provision of Development Control Rules is relied upon, whether it is applicable or not? Or where the Municipal Corporation is required to take such contrary steps, supposedly on the instructions of the concerned Minister / Chief Minister, for the development of a property for the benefit of his relative, would such instructions amount to interference/mala fide exercise of power? Is it permissible for the landowner and developer to defend the decision of the Government in their favour on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. Being aggrieved by this order, the present group of appeals have been filed: (i) Civil Appeal Nos. 198- 199/ 2000 are filed by the developer Shri Girish Vyas and his proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450 of 2000 is filed by the landowner Dr. Laxmikant Madhav Murudkar (since deceased) to challenge the judgments and the order in thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P. Plan). Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a garden. The Plan was sanctioned in exercise of the power of the State Government under Section 10 of the then prevalent Bombay Town Planning Act 1954 (1954 Act for short). This notification stated that the PMC had passed the necessary resolution of its intention to prepare a Development Plan, carried out the necessary survey, considered the suggestions received from the members of the pubic under Section 9 of the Act, and after modifying the Plan wherever found necessary, submitted it to the Government, and thereafter the Government having consulted the Director of Town Planning, had in exercise of its power under Section 10 (1) and (2) of the Act, sanctioned the Development Plan. 6. Subsequently, the 1954 Act was repealed and replaced by the MRTP Act with effect from 11.01.1967. However, by virtue of Section 165 (2) of MRTP Act, the 1966 D.P. Plan was saved. Consequently, when the landowner applied for the sanction of a layout in F.P. No.110, the same was rejected by PMC. Therefore, the landowner served on the State Government a notice dated 8th May 1979 under Section 49 (1) of the MRTP Act, calling up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andowner withdrew the amount of compensation by furnishing necessary security, though under protest. 8. After the Award was made by the S.L.A.O. on 12.5.1983 as stated earlier, a notice under Section 12 (2) of the L.A. Act was given, to take possession of the land on 20.5.1983. Once again, only the tenants objected thereto. They filed a suit on 19.5.1983 in the Court of Civil Judge, Senior Division, Pune, bearing Suit No. 966 of 1983, to challenge the acquisition and the Award. The landowner was joined therein as defendant No. 3. The Court granted an interim injunction on 19.6.1983, restraining the authorities from taking possession. However, after hearing the parties, an order was passed on 9.2.1984 vacating the injunction, and returning the plaint for failure to give the mandatory notice required under Section 80 of the Code of Civil Procedure. The tenants filed an appeal to the District Court against that order, but the same was also dismissed. Thereafter, the tenants made a representation to the then Minister of State for UDD, pointing out their difficulties, which persuaded him to pass an administrative order restraining the authorities concerned from taking possession of F.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of the land." Thus by virtue of this note, the purpose could also be effectuated either by the owner of the land, or by a recognized charitable institution. 11. It is relevant to note at this stage that a school for the handicapped children has come up in the adjoining F.P. No. 111. Besides, a primary school was set up by Symbiosis International Cultural and Educational Centre ('Symbiosis' for short) on F.P. No. 112. It is stated that Symbiosis and another educational institution viz. Maharashtra Education Society (MES) had sought these plots since they were in need of land for extension of their educational activities. The then Chief Minister of Maharashtra had recommended the proposal of MES by his letter dated 9.4.1986, and the society had applied to the then Commissioner of Pune by its letter dated 29.4.1986. That was, however, without any effect. 12. The S.L.A.O. gave one more notice to take possession of F.P. No.110 on 1.3.1988. It led to the filing of Regular Civil Suit bearing No. 397 of 1988 by some of the tenants in the Court of Civil Judge, Senior Division, Pune against the State Government and PMC, once again challenging the award of the S.L.A.O., and seeking an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It so happened that consequent upon the elections to the State Assembly, a new Government came in power in the State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the Chief Minister (hereinafter referred as the then Chief Minister). He retained with himself the UDD portfolio. The earlier referred Shri Ravindra Mane became the Minister of State for UDD (hereinafter referred to as the then Minister of State). On 20.10.1995 the landowner entered into a Development agreement with M/s Vyas Constructions by virtue of which the landowner handed over all rights of development in the property to them for a consideration of ₹ 1.25 crores, a flat of 1500 sq. feet area and an office space of 500 sq. feet in the building to be developed on F.P. No. 110. The agreement stated that it was being entered into to solve the practical difficulties. Para 7 thereof stated that the developer shall follow the procedure or process of de-reservation of the said property. Para 20 and 21 stated that 'after de-reservation of the property, the developer agrees to get the clearance under the Urban Land (Ceiling and Regulation) Act 1976 which may be necessary,' and for that purpose he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 995 made by Shri Karandikar on behalf of the landlord narrated the developments until the date of that application including the judgment and decree of the Civil Court setting aside the acquisition of the property. It was, thereafter, submitted that the Municipal Commissioner be directed to sanction the development permission as per the application of the architect of the landowner. It is relevant to note that as far as this application of Shri Karandikar is concerned, it was not addressed to the State Government or to the Secretary of the concerned Department, but directly to the Minister of State for UDD, which fact is noted by the Division Bench in its judgment. The application did not bear any inward stamp of UDD. In the margin of the application, there was a noting by the Private Secretary of the Minister of State for UDD, recording that the Minister had directed the Deputy Secretary, UDD, to call a meeting on 19.1.1996. The record further shows that although the Under Secretary of UDD Shri P.V. Ghadge accordingly called the initial meeting, by addressing a letter to the Director, Town Planning and the Municipal Commissioner, the same was adjourned to 22.1.1996. On that date, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w will it be available to the landowner, and (ii) whether the landowner had ever objected to this reservation, to which the advocate replied in the negative. 22. The City Engineer, PMC pointed out during the meeting that consequent upon the property owner issuing the purchase notice, the PMC had acquired the land, the award was made, the property owner had accepted the compensation, and that he never objected to the change in reservation due to the revision of the D.P. Plan during the entire period of revision i.e. 1982-87. With respect to the proceedings initiated by the tenants, he pointed that PMC had filed an Appeal in the Bombay High Court against the judgment of the Civil Court, and the matter was sub-judice. He specifically asked whether the hearing given to the applicant was on an appeal under Section 47 of the MRTP Act, or was it on his application. He pointed out that the property was under reservation, and it could not be de-reserved in an appeal under Section 47. It required an action in the nature of modification under Section 37 of the MRTP Act. If it was an appeal, then it may be rejected, and if it was an application for modification then a decision cannot be taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be taken from the Pune Municipal Corporation. The Hon'ble Minister of State for urban development ordered us to survey the subject property and also ordered to explore the options of changing or reducing the area of the reservation." 27. The Municipal Commissioner then stated that before considering the various options as directed by the State Government, it was necessary to note the background of the subject property; viz. that as per the 1966 D.P. Plan, it was reserved for a garden, and subsequently the reservation was changed to a Primary School in the draft D.P. Plan of 1982 confirmed in 1987. He referred to the litigation initiated by the tenants, the fact that the PMC had filed an appeal to the High Court against the decision in the Civil Suit No. 397/1988, and that the High Court sent back the matter to the District Court and it was pending there. He placed on record the fact that though full price of the land was paid to the owner, procedure of taking actual possession by the PMC was still pending for last 13 years, because of which it was not possible to make appropriate use of the land. The Minister had asked him to survey the subject property, and to explore the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Commissioner recorded two suggestions:- "1. Presently reserved area is about 3541 sq.mtrs out of which nearly 50% area is occupied by occupants and remaining area is open. The land owner after excluding the area occupied by the existing houses, to transfer the remaining area to the Pune Municipal Corporation for school. However, since the land owner has accepted compensation for the entire area, for the area to be transferred, he should refund the amount to the Pune Municipal Corporation at the rate suggested by the Director of Town Planning. 2. To get transferred land admeasuring 3000 sq.mtrs elsewhere at a convenient place in Pune City with school admeasuring 500 sq.mtrs constructed thereon free of cost as per specifications of the Pune Municipal Corporation, and for that purpose it is necessary to get executed a proper agreement. But land to be given elsewhere should not be reserved in development plan for school or some other purpose." Thereafter his letter stated as follow:- "If first proposal is to be accepted for developing school on remaining area question regarding decision of Civil Judge, Senior Division would arise. In this situation it is necessary to have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny right to demand return of the said property by deleting reservation. Now considering the tenants, they have approached the Court and therefore, it is not necessary to consider that aspect till the matter is decided by the Court. If the said matter is decided against the Municipal Corporation still the said persons shall be tenants and the land owner shall be Municipal Corporation and further that the tenants have requested for allotment of the land for developing it. 10. Still however considering the fact that no way out will be available if the matter is kept pending as it is, and further considering that there are numerous schools in the vicinity of the said property, there should be no objection to consider and approve on government level the alternative No.1 suggested by the Municipal Commissioner. However, for the said purpose the tenants will have to withdraw their proceedings from the Court and they will have to pay to the Municipal Corporation the cost price of the 50% portion to be released for the said tenants as may be determined by the Director, Town Planning. If the said alternative is acceptable to the land owner, the Pune Municipal Corporation be informed about t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artment that for that purpose the condition of 200 mtr. Distance will have to be relaxed and for which the permission of Hon. Chief Minister will have to be obtained". The PMC was thereafter asked to submit its response in the light of above discussion. Shri Ghadge recorded this suggestion in his letter dated 20.6.1996 addressed to the Municipal Commissioner. 33. The Municipal Commissioner then wrote back to the Under Secretary, UDD by his letter dated 15.7.1996, pointing out that the applicant had shown four sites from which one at Lohegaon Survey No.261 H.No.1/2 admeasuring 3000 sq.meter was suitable for a primary school, but it was in the Agricultural zone as per the approved D.P., and if it was to be converted to Residential zone, the approval of the State Government will have to be obtained for such a modification. 34. On receiving this letter from the Municipal Commissioner, Shri Ghadge once again put up a detailed note and at the end of para 8 thereof stated as follows:- "Considering the above circumstances and especially 'A" on 12 T.V. and B on 14 T.V., there could be no objection in granting permission for shifting reservation under Rule 13.5 of the D.C. Rules by relax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09/1996 (MAHARASHTRA STATE) No.TPS-1896/102/Matter No.7/96/U.D.-93 Urban Development Department Mantralaya, Mumbai 400 032 Date : 3rd September, 1996 To, The Commissioner Pune Municipal Corporation Pune Sir, Sub: Development Permission of T.P. Scheme No.1, Final Ploat No.110. Ref: Request Application dated 20/11/95 by Shri Shriram Karandikar to Minister of State for Urban Development for Development in the subject matter. I have been ordered by the State Government to communicate to you the following directives. 1. The Pune Municipal Corporation should recover from the land owner according to the land acquisition law the principal amount paid for acquisition of Final Ploat No.110, Erandwane along with construction, with interest thereon at 12%. 2. S.No.261 Hissa No.1/2 Lohegaon, Pune which is in agricultural zone should be included within residential zone in the Development Plan. For doing this you are directed that Pune Municipal Corporation should complete the entire legal action under Section 37 (1) of the Maharashtra Regional and Town Planning Act, 1966 and send the proposals to the State Government for sanction. 3. The Commissioner, Pune Municipal Corporation sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Pune Municipal Corporation is necessary". Subsequent Developments 38. Consequently, the subsequent steps have been taken. The landowner has returned the amount as sought, a deed of settlement has been entered into between the landowner and the PMC, and Commencement Certificates have been issued on 28.11.1996 and 3.5.1997 for the two buildings proposed to be constructed. An Occupation Certificate dated 20.12.1997 was also given for a part of the building completed thereafter namely, B Wing containing 24 flats for the tenants. It is however interesting to note that PMC instructed its counsel on 19.11.1996 to withdraw its first appeal in the High Court as directed by the Government even before the landowner returning the amount of compensation with interest on 22.11.1996. 39. It has so transpired that though the land at Lohegaon was handed over to PMC as proposed, subsequently the Municipal Corporation found that there was not so much need of a school at Lohegaon, but a school was needed at Sinhagad Road, Dattawadi. The procedure for changing the zone of the land at Lohegaon as required under Section 37 of the MRTP Act was also taking its own time at the municipal level. Once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of Hon. Chief Minister. It is further instructed to include the matters wherein the Government has taken a decision in this matter as also in another matter prior thereto, the information provided and points suggested by Municipal Corporation with respect to the matters of deletion of reservation from Pune City Development Plan, etc., Such note containing the full background, factual and other aspects of the matter would be useful for Hon. Chief Minister if certain questions are raised with respect to the said matter in the current session of Legislative Assembly." 41. On receiving the developer's letter dated 15.7.1998, the Commissioner once again wrote to Under Secretary UDD on 23.7.1998 suggesting acceptance of the two proposals of the developer, but seeking orders of the government therefor. It is material to note at this stage that in the Government file there is a clear noting of the Principal Secretary UDD dated 24.7.1998 that the application of Rule 13.5 in the matter under question was not legal. As the note states:- "…….With due respect to the persons then, doing interpretation of the said decision of the Government and Rule No. 13.5, I feel that applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue, principally there appears to be no objection on the part of the Commissioner in accepting the proposal of promoter as recommended by him with a view to get available the necessary amenity for the school as per their requirements. However, it would be binding upon the Commissioner to spend the said amount for the construction at such place which may be found necessary and as may be recommended by the Education Committee. (4) Since the actions to be taken as stipulated in point No. (3) above, are between the Pune Municipal Corporation Education Committee and Commissioner, Pune Municipal Corporation, there is no reason to suspend the action of granting completion certification to the Promoter therefore. Therefore, the Government shall have no objection if the completion certificate is granted by Municipal Corporation to the Promoter after completing the actions as stipulated in para No. 1 and 2 subject to the rules and provisions in that behalf. If the aforesaid issues are approved, the proposal of the Commissioner in the present circumstances being FOR superior purpose than these contained in the earlier directives of the Government there should be no reason to object the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate (C.C. for short) in the name of the landowner dated 28.11.1996 for constructing a building to rehabilitate the tenants, (ii) the second C.C. dated 3.5.1997 for constructing the other residential buildings consisting of ground plus ten floors (named as Sundew Apartment by the developer), and (iii) the Occupation Certificate (O.C. for short) in part dated 20.12.1997 for the tenants' building. Thereafter, the developer signed a confirming agreement with the landowner and his family members on 16.1.1998 to once again confirm the terms of the earlier referred development agreement entered into between the developer and landowner on 20.10.1995. It is at this stage, that two petitions bearing no. 4433/1998 and 4434/1998 were filed on 12.8.1998 and 14.8.1998 respectively. A Division Bench first issued Rule Nisi without any interim order. In as much as the construction had started from March 1997 and was substantially completed, only a direction was given in Writ Petition No.4434/1998 not to create any third party interest. The PMC was already directed not to grant completion certificate in respect of the ten storey building. Subsequently, the petitions were heard finally, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the proposal is such that it will not change the character of the Development Plan, which is known as minor modification and for which the procedure is laid down under Section 37 of the Act. The other is where the modification is of a substantial nature which is defined under Section 22A of the Act. In that case the procedure as laid down under Section 29 is required to be followed. There is also one more analogous provision though it is slightly different i.e. the one provided under Section 50 of the Act, for deletion of the reservation where the appropriate authority (other than the planning authority) no longer requires the designated land for the particular public purpose, and seeks deletion of the reservation thereon. 48. The Government's action to shift the reservation on F.P. No. 110 is under DC Rule 13.5 and not under Section 37 of the MRTP Act. We may therefore refer to DC Rule 13.5 and Section 37. DC Rule 13.5 reads as follows:- "13.5 If the land proposed to be laid out is affected by any reservation/s or public purpose/s authority may agree to adjust the location of such reservation/s to suit the development without altering the area of such reservation. Provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development Plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice and shall also serve notice on all persons affected by the proposed modification and the Planning Authority. (b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the Government. (c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, publish the approved modifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to give a notice to all the persons affected by the proposed modification. Sub-section (1A) lays down that if the Planning Authority does not give the notice, the State Government is required to issue the notice as stated above. The notice to the affected persons in our case will mean notice at least to the two institutions which had applied for developing a Primary school on this very plot of land. Thereafter they have to be heard, and the proposed modification with amendments if any, is to be submitted to the State Government for sanction. Subsequently, after making appropriate enquiries and after consulting the Director of Town Planning the State Government may under sub-section (2) sanction the modification with or without appropriate changes, or subject to such conditions as it may deem fit or refuse to grant the sanction. 52. Sub-section (1AA) of Section 37 lays down the power of the State Government where it feels the urgency for carrying out any such modification. In that case the State Government may publish the notice in the Official Gazette, and follow the similar procedure, but subsequently it has to place the proposal before the general body of the Planning Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase by ten per cent. in area of reservations provided for in clauses (b) to (i) of section 22, in each planning unit or sector of a draft Development Plan, in sites admeasuring more than 0.4 hectare in the Municipal Corporation area and 'A' Class Municipal area and 1.00 hectare in 'B' Class and 'C' Class Municipal areas; (b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modification under section 29 or 31, as the case may be; (c) reduction in an area of an actually existing site reserved for a public amenity except for marginal area upto two hundred square meteres required for essential public amenity or utility services; (d) change in the proposal of allocating the use of certain lands from one zone to any other zone provided by clause (a) of section 22 which results in increasing the area in that other zone by ten per cent. in the same planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d square metres required for essential public amenities or utility services their reduction will be a substantial modification. (d) shifting of the allocation of use of land from zone to zone which results in increasing the area in the other zone by ten per cent in the same planning unit will be a substantial modification. (e) any new reservation made in a draft Development Plan which is not earlier published will be a substantial modification, and (f) alternation in the Floor Space Index beyond ten per cent will be a substantial modification. Importance given to the spaces reserved for public amenities 57. As we have noted, all such substantial modifications can be effected only after following the additional requirement laid down in Section 29 viz. a notice in the local newspapers inviting objections and suggestions within sixty days from the public at large with respect to the proposed modification. Sub-section (a) deals with reduction of more than fifty percent in area provided in clauses (b) to (i) of Section 22 which sub-sections are concerned with proposals for designation of land for public purposes such as schools, colleges, markets, and open spaces, playgrounds, tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheme canvassed for the first time in the High Court - Can a provision in the erstwhile T.P. Scheme be relied upon in the face of a contrary reservation in the subsequent D.P. Plan? 59. In as much as the action of the State Government could not be defended under D.C. Rule 13.5, the appellants came up with the submission for the first time in the High Court and then in this Court that under the erstwhile Town Planning Scheme, this F.P. No. 110 could be developed for residential purposes, and that purpose subsisted in spite of the subsequent reservation for a public purpose on that plot of land under the D.P. Plan. 60. It was pointed out that a Town Planning Scheme was framed under the then Bombay Town Planning Act of 1915 for Pune City to become effective from 1.3.1931. Regulation 14 of the Principal scheme framed under that Act provided for the areas included in the scheme which were intended mainly for residential purposes wherein this plot was included as original plot No. 230/C. It was subsequently allotted F.P. No. 110. There was no reservation on this plot for any public purpose. The 1915 Act was repealed and replaced by the Bombay Town Planning Act 1957 w.e.f. 1.4.1957 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act. Relevant provisions of the Act in the context of the D.P. Plan as against the erstwhile T.P. Scheme 62. The preamble of the MRTP Act shows that this is an Act to make provisions for: (1) planning the development and use of land in regions established for that purpose and for constitution of regional planning boards therefor, (2) to make better provisions for the preparation of development plans with a view to ensuring that T.P. Schemes are made in the proper manner and their execution is made effective, (3) to provide for the creation of new towns by means of development authorities, (4) to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans, and (5) for purposes connected with the matters aforesaid. 63. (i) Chapter I of the Act contains the Preliminary provisions. Chapter II of the Act is concerning the Regional Plans. Chapter III is about the Development Plan, and Chapter IV about Control of Development and Use of Land included in Development Plans. Chapter V is about the T.P. Schemes. (ii) Section 3 of the Act permits the State Government to establish any area in the State to be a Region. A Regional Plan is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 reads as follows:- "59. Preparation and contents of Town Planning Scheme (1) Subject to the provisions of this Act or any other law for the time being in force- (a) a Planning Authority may for the purpose of implementing the proposals in the final Development Plan, prepare one or more town planning schemes for the area within its jurisdiction, or any part thereof; (b) a town planning scheme may make provision for any of the following matters, that is to say- (i) any of the matters specified in section 22; (ii) the laying out or re-laying out of land, either vacant or already built upon, including areas of comprehensive development; (iii) the suspension, as far as may be necessary for the proper carrying out of the scheme, of any rule, by-law, regulation, notification or order made or issued under any law for the time being in force which the Legislature of the State is competent to make; (iv) such other matter not inconsistent with the object of this Act, as may be directed by the State Government. (2) In making provisions in a draft town planning scheme for any of the matter referred to in clause (b) of sub-section (1), it shall be lawful for a Planning Authority w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the T.P. scheme may make provision for any of the matters specified in Section 22, the T.P. scheme cannot be placed on the same pedestal as a Development Plan. Section 59 (2) is only an enabling provision. It may happen that in a given situation a suitable amendment of the Development Plan may as well become necessary while seeing to it that the T.P. scheme is in consonance with the Development Plan. Section 59 (2) will only mean that the legislature has given an elbow room to the planning authority to amend the Development Plan if that is so necessary, so that there is no conflict between the T.P. Scheme and the D.P. Plan. In fact what is indicated by stating that "it shall be lawful to carry out, such an amendment" is that normally such a reverse action is not expected, but in a given case if it becomes so necessary, it will not be unlawful. Use of this phrase in fact shows the superiority of the D.P. Plan over the T.P. scheme. Besides, the phrase put into service in this sub-section is only 'to provide for a suitable amendment'. This enabling provision for an appropriate amendment in the D.P. plan cannot therefore, be raised to the level of the provision contained in Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are about the Control of Development and use of land included in the Development Plan, are mutatis mutandis applicable to the development and the use of land included in the T.P. scheme, and therefore the D.P. plan and T.P. scheme are on par. 68. Now, it is material to note that sub-sections (1) to (5) of Section 69 operate when the draft T.P. scheme is under preparation. Sub-section (6) will have to be read on that background because this sub-section itself states that provisions of Chapter IV will apply in relation to the development of the land included in a T.P. scheme "in so far as it is not inconsistent with the provision of this Chapter", i.e. Chapter V on Town Planning Schemes wherein Section 69 is placed. Chapter IV is on control of Development and use of land included in Development Plans. And as noted above, Section 59 (1) (a) which is the first section of Chapter V clearly contains the direction that the T.P. scheme is to be prepared for the purpose of implementing the proposals in the final Development Plan. Therefore, merely because by incorporating the provisions of Chapter IV those provisions are made applicable to T.P. schemes, the mandate of Section 59 (1) (a) c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision 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, learned senior counsel appearing for the State Government, therefore, rightly submitted that in view of Section 165 of the MRTP Act, if the construction was completed, partly started or plans were submitted, or any such appropriate steps were taken prior to 18.9.1982, the same could have been permitted. Once the State Government published the draft Development Plan on 18.9.1982, providing for the reservation for a primary school, any construction contrary thereto could not be permitted. This can only be the interpretation of the provisions contained in Section 39 read with Section 43 and Section 165 of the MRTP Act. For convenience, we may refer to Section 165 (1) and (2), which read as follows:- "165. Repeal and saving. (1) The Bombay Town Planning Act, 1954 and sections 219 to 226A and clause (xxxvi) of sub-section (2) of section 274 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, are hereby repealed. (2) Notwithstanding the repeal of the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructure on the plot adjoining to his plot. One of the objections raised by the petitioner was that the disputed construction did not observe the margins prescribed in the regulations framed under the Development Plan (comparable to the D.C. regulations in the present case). The respondents pointed out that the regulations which were published and sanctioned by the State Government as a part of the T.P. scheme specifically provided that no margin should be imposed on the particular final plot of the respondents Nos. 4 to 12. In view thereof, the Division Bench in para 6 of its judgment referred to Section 18 (2) (k) of the 1954 Act which specifically provided that the Town Planning scheme may provide for the suspension, so far as may be necessary for the proper carrying out of the scheme of any rule, by- law, regulation, notification or order made or issued under any Act of the State Legislature. Since that had been done, the permission for construction in the particular case could not be faulted. It was in this context that the Division Bench observed that the provisions of the scheme which are contrary to those regulations shall prevail over the same. It is material to note that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."…… (emphasis supplied) 75. The counsel for the landowner criticised the impugned judgment for accepting the observati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts (i.e. purchasers of the land) provided adequate green area as envisaged in the development plan, this order will not operate. This order of the High Court in Rusy Kapadia (supra) was challenged by those private respondents, the judgment in which Appeal is reported in the case of Raju S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222]. This Court in the case of Raju Jethmalani noted that the observations in Bangalore Medical Trust were in the context of Section 38 (A) of that Act. The Court also noted that though the development plan provided the area for the garden, no proceedings for acquisition of the concerned plot had ever been initiated. In that context, the court observed that there is no prohibition for preparing the development plan comprising the private land, but the plan cannot be implemented unless the said private land was acquired. It was for this reason that the court allowed the appeal and set aside the order in Rusy Kapadia's case, but this time directed the petitioners of the PIL (i.e. Rusy Kapadia & Ors.) to raise funds in six months if they wanted the park to be maintained, in order to assist the Government to acquire the land, failing wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in this Court. They submitted that the shifting was protected under Rule 6.6.2.2, and the reference to Rule 13.5 in the Government's order dated 3.9.1996 was erroneous. Now, this Rule 6.6.2.2 reads as follows:- "6.6.2.2 In specific cases where a clearly demonstrable hardship is caused the Commissioner may by special written permission (i) Permit any of the dimensions/provisions prescribed by these rules to be modified provided the relaxation sought does not violate the health safety, fire safety, structural safety and public safety of the inhabitants, the buildings and the neighborhood. However, no relaxation from the set back required from the road boundary or FSI shall be granted under any circumstances. While granting permissions under (i) conditions may be imposed on size, cost or duration of the structure abrogation of claim of compensation payment of deposit and its forfeiture for non-compliance and payment of premium." As can be seen from this Rule it provides for variations with respect to dimensions and st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate 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: Provided that, the Planning Authority, or as the case may be, the State Government may, before making any order, make such enquiry as it may consider necessary and satisfy itself that such reservation or designation or allocation is no longer necessary in the public interest. (3) Upon an order under sub-section (2) being made, the land shall be deemed to be released from such designation, reservation, or, as the case may be, allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land, under the relevant plan." As can be seen, Section 50 provides for deletion of a reservation at the instance of an Appropriate authority (other than the planning authority) for whose benefit the reservation is made. Such is not the present case. Under sub-section (1) of Section 50, the appropriate authority has to be satisfied that the land is not required for the public purpose for which it is reserved. "Appropriate authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 for the benefit of a private nursing home. Amongst others Section 65 of the Bangalore Development Act, 1976 was sought to be pressed into service which authorised the Government to issue directions to carry out the purposes of the act. This Court observed in para 52 of that judgment that the section authorises the Government to issue directions to ensure that provisions of law are obeyed and not to empower itself to proceed contrary to law. In the present matter, it is to be seen that the section provides for directions or instructions to be given by the State Government for the efficient administration of the Act. This implies directions for that purpose which are normally general in character, and not for the benefit of any particular party as in the present case. The provisions of law cannot be disregarded and ignored merely because what was done, was being done at the instance of the State Government. Consequently, Section 154 cannot save the directions issued by the State Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o have a permission for development granted by the planning authority traceable to an appropriate provision of law. In the present case there is none. The appellants are essentially raising all these submissions to justify a construction which is without a valid and legal development permission. The appellants have gone on improving and tried to change their stand from time to time with a view to justify Government's order in their favour. However, "Orders are not like old wine becoming better as they grow older" as aptly stated by Krishna Iyer J. in para 8 of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 (1) SCC 405. The submissions of the appellants in defence of the decision of the State Government are devoid of any merit and deserve to be rejected. Legality of the acquisition of the land: Whether the acquisition lapses on account of change of purpose of acquisition 85. As seen earlier, the letter of the landowner had led to the subsequent steps for acquisition. The landowner was interested in good return for his land. The tenants were interested only in the rehabilitation on the same plot of land. That was their stand until the award dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tially for the setting up of a Sewage Purification Plant, but subsequently the land was sought to be used for the residential and commercial purposes of its employees, since this Sewage Treatment Plant was shifted to another parcel of land. This utilisation was held to be completely valid and permissible by K. Ramaswamy, J. 88. The appellants before us contended that Majmudar, J., the other Learned Judge deciding the I.D.I Co's. case had taken a different view on the issue of change of user, and therefore, the issue remained undecided, and that the view taken by the Bombay High Court in the above referred two judgments deserved acceptance. The appellants submitted that Majmudar, J. agreed with K. Ramaswamy, J. only to the extent that the petition filed by the respondents in the High Court deserved to be dismissed on the ground of delay and laches. As far as the ground of change of purpose is concerned, Majmudar J., expressed his different opinion in the following few sentences:- "33. Even though the proposal under Section 126(1) is for acquisition of land for a specified public purpose, if the planning authority wants to acquire the land subsequently for any other public purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... award was made and possession taken. 90. The observations of K. Ramaswamy, J. in paragraph 11 of the judgment in I.D.A. Co's case (supra) are relevant in this behalf. This para reads as follows:- "11. If we turn to Chapter III of the MRTP Act, we find that the entire machinery is provided for preparation, submission and sanction of development plan proceeding from Section 21 and ending with Section 31. These provisions, in short, provide for preparation of draft development plant by the planning authority inviting objections of persons concerned against such proposals, hearing of objections filed by the objectors as per Section 28 sub-section (3) by the Planning committee and then submitting its report to the planning authority which ultimately gets the proposals approved by the State Government under Section 30. All these provisions do indicate that requirement, designation, reservation or earmarking of any land for acquisition for any specified public purpose as indicated in the plan has already undergone the process of hearing after the objections of the persons concerned were considered and then such land gets earmarked for public purpose in the plan. It is after that stage, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ared in this behalf provide, or (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894(I of 1894),and the land (together with the amenity, if any so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894(I of 1890), as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.] (2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or [if the State Government (except in cases falling under section 49 [and except as provided in section 113A)] itself is of opinion] that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894(I of 1894), in respect of the said land. The declaration so published shall, notwithst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the land acquired; and in determining the amount of compensation to be awarded, the market value of the land shall be assessed as if the land had been released from the reservation, allotment or designation made in the [any plan or scheme] or new town, as the case may be, and the Collector or the Court shall take into consideration the damage, if any, that Planning Authority or Development Authority or Appropriate Authority, as the case may be, may sustain by reason of acquisition of such land under the Land Acquisition Act, 1894(I of 1894), or otherwise, and the proportionate cost of the Development plan or town planning scheme or new town, if any, incurred by such Authority and rendered abortive by reason of such acquisition. (3) On the land vesting, in the State Government under sections 16 or 17 of the Land Acquisition Act, 1894(I of 1894), as the case may be, the [relevant plan or scheme] shall be deemed to be suitably varied by reason of acquisition of the said land." Sub-section (1) of this Section states that in such situations the provision of L.A. Act will apply notwithstanding anything contained in the MRTP Act, and sub-section (3) specifically states that in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al remedies under the L.A. Act can be read into Chapter VII of the MRTP Act concerning Land Acquisition, and Section 11A of the L.A. Act will not apply thereto. It held that in the scheme of the MRTP Act, the provisions of Land Acquisition Act would apply only until the making of the award under Section 11 of the Act. The Court held that MRTP Act is a self contained code and Sections 126 to 129 thereof clearly enunciate the intention of the framers that substantive provisions of L.A. Act are not applicable to MRTP Act. In para 129 of the judgment the Constitution Bench has specifically held:- "129. …… Vesting, unlike Section 16 of the Land Acquisition Act which operates only after the award is made and compensation is given, whereas under the MRTP Act it may operate even at the initial stages before making of an award, for example, under Sections 126(1)(c) and 83." 96. The appellants herein have contended, and so had the respondents in I.D.A. Co's case (supra) contended that the original public purpose should continue till the award was made and possession taken. While dealing with this proposition, K. Ramaswamy, J. took an overview of the leading judgments in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquired for a public purpose may be used for another public purpose on account of change or surplus thereof. The acquisition validly made does not become invalid by change of the user or change of the user in the Scheme as per the approved plan……….. It would not, therefore, be necessary that the original public purpose should continue to exist till the award was made and possession taken." This being the position, there is no difficultly in stating that the two judgments of the Bombay High Court which are relied upon by the appellants (viz. in the cases of I.D.I. Co. (supra) and Santu Kisan Khandwe (supra) do not lay down the correct position of law. We are in respectful agreement with the opinion rendered by K.Ramaswamy J. in I.D.I. Co's Case. The acquisition of the land in the present case cannot said to be invalid on account of change of purpose during acquisition. 98. That apart, there is also the question as to whether the Civil Court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the L.A. Act provides for the entire mechanism as to how acquisition is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as vacated, the tenants represented to the Minister of State for UDD, pointing out their difficulties. The landowner did not challenge the acquisition in any manner whatsoever. (h) After the Development Plan under the MRTP Act was sanctioned, though the reservation was continued, the purpose of utilization of the land was changed in the 1987 D.P. plan from garden to primary school. Thereafter, when the SLAO gave one more notice to take possession on 1.3.1988, some of the tenants filed another Civil Suit bearing No. 397 of 1988 in the Court of Civil Judge, Senior Division Pune. It was at that stage that the landowner who was a defendant in that suit, applied for transposing himself as a plaintiff which application was allowed on 2.4.1988. The Civil Court having held that the acquisition had lapsed due to the change of purpose of acquisition (from what it originally was in 1966), the PMC filed an Appeal which is pending thereafter. (i) After Shri Manohar Joshi took over as the Chief Minister on 14.3.1995, the landowner entered into a Development agreement with M/s Vyas Constructions on 20.10.1995. Besides, he executed two powers of attorney, one in favour of its proprietor Shri Gir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the MRTP Act and not otherwise. (m) The landowner initially took the stand that it was not an appeal, but subsequently wrote a letter on 23.3.1996 through Shri Karandikar that it was an appeal under Section 47 of the MRTP Act. The landowner and the developer have been changing their stand from time to time. The conduct of the Minister of State for UDD, the then Chief Minister, and the Municipal Commissioner 100. We may now refer to the conduct of the then Minister of State for UDD, the then Chief Minister and the then Municipal Commissioner. (a) As stated above the application of the landowner was received directly at the level of the Minister of State and immediately a meeting of high ranking officers was called, which is normally not done. (b) In spite of a clear initial stand taken by the City Engineer PMC, as well as by the senior officers of UDD such as its Secretary, in view of the landowner submitting that on the adjoining plots schools had been developed, the Minister of State for UDD asked the Municipal Commissioner to survey the property and make a report, whether the PMC really needed the concerned property. The note of the meeting dated 3.2.1996 shows that initial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the procedure under Section 37 of MRTP Act. (h) The Minister of State did not approve this note dated 4.6.1996, and in view of Shri Karandikar insisting on shifting the school from F.P. No. 110, the subsequent note dated 13.6.1996 recorded that if the condition of 200 metres is to be relaxed, orders will have to be obtained from the Chief Minister (which power is disputed by the Principal Secretary, UDD in his subsequent note dated 24.7.1998). (i) Thereafter, the developer offered another parcel of land at Lohegaon (which is a far off place), on which proposal the department prepared a note to give four directions to PMC which have been referred earlier. Under that proposal, Lohegaon land was to be exchanged for the concerned F.P. No. 110 which was to be released by invoking DC Rule 13.5, and the landowner was to return to PMC the amount of compensation received. This note was approved by the Chief Minister on 21.8.1996 and accordingly a direction was given to the Municipal Commissioner on 3.9.1996 to accept the proposal of the developer and issue the development permission for F.P. No. 110. (j) The Senior Law Officer of the PMC recorded an objection that such permission wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Municipal Commissioner, permitting him to accept the land at Mundhwa or elsewhere, as well as the amount to construct a school building of 500 sq. feet, and to issue the occupancy certificate for the Sundew Apartments. (p) Thus it has got to be inferred that not only the then Chief Minister was fully aware about this matter right from April 1996, until the last direction of UDD dated 29.7.1998, but was associated with the decision making process and the directions issued all throughout. 101. The events in this matter disclose that although the officers of UDD and the PMC initially took the clear stand opposing the proposal on behalf of the landowner to put up a residential building in place of a Primary School, the Minister of State for Urban Development asked the Municipal Commissioner to personally carry out a survey of the property, on the ground that two schools had come up in the near vicinity, ignoring the fact that they had so come up as per the provision in the D.P. Plan itself. Thereafter when it was pointed out that the permission of the general body of the Municipal Corporation will be required for the modification, that submission was by-passed. The provision of DC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights under the erstwhile T.P. scheme contending that setting up of a primary school on that plot contrary thereto would be affecting their right to develop the property and is therefore illegal. It is also not a case where they have approached the appropriate authority pointing out that there are sufficient number of schools in the near vicinity with supporting information and, therefore, sought deletion of reservation on the concerned plot. This is a case where the landowner never raised either of the two pleas to begin with. He was conscious of the fact that the land was reserved for a public garden in the 1966 D.P. Plan and, therefore, gave a purchase notice in May, 1979 which was confirmed by the State Government in December, 1979. When the D.P. Plan was revised during 1982-1987, he never raised any of the above two submissions. He did not even challenge the subsequent reservation for a primary school finalized in 1987. Only in 1995 when Shri Manohar Joshi became the Chief Minister, he appointed his son-in-law as a developer and another power of attorney Shri Karandikar to approach the Ministers directly. He pointed out that two schools had come up on the adjoining plots (wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State Government. The development permission could not be defended either under Rule 6.6.2.2 or under Section 50. The MRTP Act requires a valid development permission under chapter IV of the act, and in the instant case there is none. Consequently, the construction put up on the basis of such permission had to be held to be illegal. In the circumstances, we uphold the judgment of the Division Bench as fully justified in law and in the facts of the case. Impugned Order passed by the Division Bench 106. (i) As seen above, the Division Bench in the impugned judgment came to the conclusion that the disputed construction by the developer was totally illegal, and also concluded that there was nothing wrong with the acquisition of F.P. No.110. Having held so, it passed the impugned order which can be split into two parts. The first part of the order is arising out of the determination concerning the legality of the construction, and it can be seen in sub-paragraphs (a) to (d) of para 227 of the judgment. The order pertaining to costs is connected with this part and it is in sub-paragraph (f). The second part of the order is regarding appropriate criminal investigation which is in sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection (d) as above. 109. The demolition was objected to by the appellants amongst others on the ground that there was delay and laches in moving the petitions to the High Court. It was submitted that if the petitioners were vigilant, they could have seen the building coming up from November 1996 onwards, but the petitions have been filed only in August 1998. According to them by the time the petitions were filed, the tenants' wing was complete, and even the other wing of Sundew Apartments was nearing completion The Division Bench has rejected this submission in paragraph 220 of its judgment by observing that merely because a construction is coming up, a citizen cannot assume that it is illegal or that the developer had obtained the construction permission in a manner contrary to law. Besides, when the petitioner in Writ Petition No. 4434 of 1998 (who is a Corporator) sought the information about the construction, he was informed by PMC that the same could not be made available under the relevant rules, though no such rules were shown to the Division Bench. The High Court has on the other hand noted that as a matter of fact even the construction of the building meant for the ten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so without calling any bids and for hardly any monetary gain to the Municipal Corporation. This was also a case where the construction was on the basis of an agreement with the builder which agreement amounted to a fraud on the powers of the Mahapalika, and a clear case of favouritism, as in the present case. This Court dismissed the appeal and directed the demolition of the disputed construction and observed as follows in para 73 of its judgment:- "73. ……. This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law……" (emphasis suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for that very purpose. In that event, the tenants may not be entitled to receive any monetary compensation since this offer is as per their original demand and it very much compensates them. However, since the amount of compensation awarded to them was too meagre, if they have collected it, they need not return the same to PMC. This being the position, in our view, the main operative order passed by the High Court needs to be modified appropriately. In the circumstances, we modify and restrict the operative order of demolition only to the extent it directs the removal / demolition of the building meant for the persons other than these tenants (i.e. the ten storey building named as Sundew Apartments). 114. We may as well mention at this stage that as far as this building viz. Sundew Apartments is concerned, no one, except a bank had come forward to claim any third party rights, or prejudice on account of the order of demolition passed by the High Court in spite of the well publicised litigation of this matter. The concerned bank had advanced a loan to the developer against the security of two flats in that building, and it intervened only at the last stage of passing of the order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally and mala fide". As we have seen from the notings on the file, initially he did take a stand which could be said to be as per the record, and in consonance with law. In his affidavit before the High Court, he took the stand that he acted under the directions of the Minister, and hence, he should not be blamed for the ultimate decision. Shri Narshima, learned senior counsel appearing for him drew our attention to the Maharashtra Government Rules of Business framed under Article 166 of the Constitution in this behalf. He also tried to defend the Commissioner's action by invoking Section 154 of the MRTP Act which lays down amongst others that the Planning Authority has to carry out the directions and instructions of the State Government for the efficient administration of the act. The Division Bench declined to accept this explanation. We have already dealt with this submission and recorded our reasons as to why we also cannot accept this reliance on Section 154. 117. (i) It was submitted on behalf of the Commissioner that he brought the correct legal position to the notice of the Minister of State to begin with, but ultimately had to give up due to the instructions from the M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to be obtained. His report of 17.4.1996, cannot however be said to be fully satisfactory and he failed in his duty when he permitted the by-passing of the Municipal Corporation in the matter of deletion of reservation on F.P. No.110, which he claims to have done in view of the direction from the Chief Minister under the D.C. Rules. We can say that a high ranking IAS Officer was expected to show his mettle, and he failed to come up to the expectations, but noticing that he had no personal interest in the matter, and he was acting under the directions of his superior, the Division Bench could have avoided making the particular remarks against him. The conduct of the Minister of State 119. In paragraph 3 of Writ Petition 4434 of 1998, there is a specific allegation against the then Minister of State as well as the then Chief Minister of "the blatant misuse of executive powers", "with a sole objective of ensuring a substantial monetary benefit for M/s Vyas Constructions. The defence of the Minister of State was that he tried to find out a workable solution, and acted on the advice of the officers of his department. As we have seen from the notings and as observed by the Division ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, a very high ranking officer, to carry out a personal inspection and to make a report. Would he issue such directions in the case of other similar applications? (iii) Thirdly, after the Commissioner's report, the UDD department supported the initial view of the Minister of State that only a part of F.P.No. 110 be released, and that too under Section 37. Why did he not approve that note? (iv) He acted as if he was waiting for the Commissioner to state that two schools had come up in the adjoining plots, so that he can release F.P. No. 110 from the reservation for a Primary school. Did he not realise that those schools had come up as per the Development plan itself? (v) He relied upon an alleged precedent of release of the land at Kothrud under D.C. Rule 13.5 without having the particulars thereof on record. (vi) He tried to put the blame on the Municipal Commissioner and the Municipal Officers for the decision arrived at. It is true that the Commissioner failed in his duties to place full facts on record. At the same time the fact that the Minister of State ignored the initial notes of his own department and of PMC, which were in accordance with law, and went on ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment level was also brought to his notice, and he was going to sign it, but for the advice of the Additional Chief Secretary that since his son-in-law had written a letter by that time to the Commissioner, the papers be sent for the signature of the Minister of State. Thus it is quite clear that he was aware about the developments in the matter, and the orders therein were issued with his approval and knowledge. He cannot therefore, escape the responsibility for all the illegal actions in this matter. (iii) The learned senior counsel for the then Chief Minister Shri Shyam Diwan objected to the language used in paragraphs 111 and 131 of the judgment which accused him of "pettifogging or obfuscation of facts". It is stated in the judgment that the then Chief Minister "furtively" sought a copy of the report dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared by his private secretary to the Minister of State for Urban Development calling for the file for the then Chief Minister's perusal. It was submitted that there was no need for the then Chief Minister to act secretively. In our view, there is no use in taking umbrage behind the language used by the Court. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was in pursuance to the order of the Chief Minister dated 21.8.1996 viz. "All actions be taken in accordance with law. No objection". It was sought to be contended on his behalf that he had clearly stated that all actions be taken in accordance with law. But we cannot ignore that he had simultaneously stated in his remarks of approval, "no objection" to the note containing the proposal which had been put up before him, and which was not in accordance with law. The note clearly stated that the reservation on the land at Lohegaon be shifted from agricultural zone to residential zone by following the procedure under Section 37 of the MRTP Act. But as far as shifting of reservation from F.P. No. 110 was concerned, a different yardstick, namely that of D.C. Rule 13.5 was applied for which there was no explanation whatsoever. Thus he gave no objection to an illegal proposal as proposed in the note, and directed that all actions be taken in accordance with law which will only mean that the proposal be somehow fitted in four corners of law. (ii) The letter dated 17.4.1996 from the Municipal Commissioner had already been forwarded for his perusal. This report had clearly stated to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He defended the decision of the then State Government and the actions taken in pursuance thereof by submitting that (i) There is no detriment to Public Interest, as no Municipal Primary School was required in the locality. (ii) The Appellant made alternative plot available at his own cost in the locality where a Municipal Primary School was required. (iii) The developer paid a sum of ₹ 25 lakhs to the PMC for construction of Municipal Primary School wherever it wanted to put it up. (iv) Tenants occupying dilapidated structures were rehabilitated on the very plot and were to get the ownership right free of cost. 126. These arguments are based on an erroneous premise that the plot was reserved for a Municipal Primary school. It was reserved for a Primary school and not merely a Municipal Primary school. It is on this false premise that the Commissioner had opined that this being a higher middle class area, a Municipal Primary school may not get an appropriate response. The two adjoining plots were also reserved for Primary schools as per the D.P. plan, and thereon two private schools had already come up. That cannot be a ground to say that this plot be released from reservati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the then Chief Minister. The Deputy Secretary in the UDD Shri Vidyadhar Despande has also stated in his affidavit that there was no pressure from the office of the Chief Minister or for himself. That apart there were cogent factors explaining why there was no need for yet another primary school in the locality and generally the thinking was that public interest would gain from the proposed course of action. (ii) As far as this latter submission about there being no need of one more primary school, one may immediately note the scant respect that the then Chief Minister had for the cause of education and the method of planning. One fails to see as to what public interest was going to be achieved by preventing a primary school from coming up on a designated plot. There is no use stating that instead a primary school will come up in another area. It will of course come up in that area if it is so required. But there is no need to tinker with a school in another area, provided by a proper planning process. (iii) We have already noted the manner in which the matter had been handled. The application of the developer was entertained directly at the level of the Minister of State. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mala fides is very heavy on the person who alleges it. The allegations of mala fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility." Shri Royappa, while challenging his transfer had made allegations of mala fides against the then Chief Minister of Tamil Nadu, and this Court had refused to accept those allegations. The Division Bench noted in the presently impunged judgment that Shri Royappa was a Chief Secretary, and hardly any Chief Secretary of a State Government was known who would be in any way hamstrung, or stopped from getting information or documents on the basis of which he makes out the case of mala fides against the officer holding a public office. The Division Bench rightly observed at the end of para 129 as follows:- "We do agree with Mr. Salve that a finding of mala fides against public authority, that too of the rank of Chief Minister of the State, should not be lightly drawn. It is quite a serious matter. But, if the Court is required to draw such an inference after examining the record, we feel that the Court cannot flinch from its duty." 129. In one earlier case i.e Shivajirao Nil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his particular file all throughout, and the orders were issued only because the developer was his son-in-law, and he wanted to favour him. Ultimately, one has to draw the inference on the basis of probabilities. The test is not one of being proved guilty beyond reasonable doubt, but one of preponderance of probabilities. Appropriate actions taken in a Public Interest Litigation 131. It was contended before the High Court that the rule as to the construction of pleadings should be strictly applied in the present case and that the material as contained in the petitions did not justify any further probe. The High Court rightly rejected that argument. There was a sufficient foundation in the petition for the further steps to be taken by the High Court. The petitions before the High Court were in the nature of public interest litigation. The purpose in such matters is to draw the attention of the High Court to a particular state of facts, and if the Government action is found to be contrary to law or affecting the rights of the citizen, the court is required to intervene. There was a specific plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that "the fundamental an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... produced by the Government showed that despite suggestions made by the Health Secretary and Chief Secretary to the Delhi Administration, Lt. Governor of the Administration had refused to take any action against the Director. The High Court had passed strictures against the Lt. Governor. The learned senior counsel Shri Venugopal appearing on behalf of the appellant Lt. Governor had submitted that the strictures based on the basis of the notings should be expunged. Rejecting the submission this Court observed in paragraph 8 as follows:- "8. ….. Where the relevant departmental files were produced before the court by the Government and the court on scrutiny of the same came to the conclusion that the decision has not been taken fairly, then the court would be entitled to comment on the role of such person who took the decision….. In such circumstances if the contention of Mr. Venugopal is accepted then no administrative authority and his conduct would come under the judicial scrutiny of the court. That an administrative order is subjected to judicial review is by now the settled position and no longer remains res integra. This being the position we fail to appreciate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Maharashtra to initiate appropriate investigation against them through an impartial agency, and if satisfied that any criminal offence has been committed to take such action as warranted in law. 137. Now, as far as this direction is concerned, we have to note that as far as the Municipal Commissioner is concerned, though the Division Bench did not approve his conduct and squarely criticized him for being more loyal to the king then the king himself, yet in terms it observed in paragraph 144 of the judgment, that it did not attributive any motive to him for his actions. This para reads as follows:- "144. While we may not attribute any motive to respondent No.10 for his actions, we cannot approve of the actions taken by him. We have already pointed out that the action of withdrawing the appeal was wrong. In our view, respondent No.10 would have served the interests of the PMC better if he had placed his dilemma before the PMC and sought a resolution thereof, particularly when he believed that the Government was issuing him instructions contrary to law, which he believed to exist. But, perhaps, this might not have been clear to him at the time when he acted to please his masters. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t his report in April, 1996. But for his personal interest, the Government and the Municipal officers would not have taken the stand and put up the notes that he wanted to be on record. The shifting of the reservation from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of the Municipal Corporation and ignoring the mandate of Section 37 was also not expected, yet he gave "no objection" to a contrary and totally unjustified order. The earlier part of his order viz. "all action be taken in accordance with law" therefore becomes meaningless, and is nothing but a camouflage. The conduct on the part of the then Chief Minister prima-facie amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for the original petitioners submits that such a conduct ought to be sternly dealt with. 140. The learned counsel for the Chief Minister on the other hand pointed out that there were no prayers for prosecution in the Writ Petitions, and the direction contained in paragraph 227 (e) was beyond the prayers. The question therefore, is whether the operative order passed by the High Court in this behalf is legally tenable. The direction given by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the part of the then Chief Minister and the Minister of State amounts to a criminal misconduct also under Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In the present case however, there is neither any such reference to this section nor any prima facie finding in the impugned judgment rendered way back in March 1999. In the circumstances in view of the proposition of law enunciated by a larger bench in the above case it is difficult to sustain the direction to make appropriate investigations through an impartial agency, and if satisfied that any criminal offence has been committed by the aforesaid respondents in the discharge of their duties, to take action as is warranted in law. Epilogue Approach Towards the Planning Process 143. The significance of planning in a developing country cannot be understated. After years of foreign rule when we became independent, leaders of free India realized that for advancement of our society and for an orderly progress, we had to make a planned effort. Infact, even prior to independence the leaders of the freedom struggle had applied their mind to this aspect. The leaders of Indian Freedom Movement and particularly Pandit J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itizens, planners, administrators, Municipal bodies and the Government as is also seen throughout the MRTP Act. Thus when it comes to the Development Plan for a city, at the initial stage itself there is the consideration of the present and future requirements of the city. Suggestions and objections of the citizens are invited with respect to the proposed plan, and then the planners apply their mind to arrive at the plan which is prepared after a scientific study, and which will be implemented during the next 10 to 20 years as laid down under Section 38 of the MRTP Act. The plan is prepared after going through the entire gamut under Sections 21 to 30 of the Act, and then only the sanction is obtained thereto from the State Government. That is why the powers to modify the provisions of the plan are restricted as noted earlier. If the plan is to be tinkered for the benefit of the interested persons, or for those who can approach the persons in authority, then there is no use in having a planned development. Therefore, Section 37 which permits the minor modifications provides that even that should not result into changing the character of the development plan, prior whereto also a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and, commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of ecological aspects. 9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally retarded. 10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens, playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials and burial grounds; cremations, cremation grounds and electric crematoriums. 15. Cattle ponds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops and public conveniences. 18. Regulation of slaughter houses and tanneries." The primary powers of the Municipal Corporations in Maharashtra such as PMC (excluding some Municipal Corporations which have their separate enactments) and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) this Court had to lament in paragraph 51 of the judgment as follows:- "51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out, the courts should not and cannot remain mute and dumb." 150. People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for a public purpose after following the due process of law, the interest of the individual must yield to the public interest. 152. As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities. We have seen the definition of substantial modification, and when the reservation for a public amenity on a plot of land is sought to be deleted completely, it would surely be a case of substantial modification, and not a minor modification. In that case what is required is to follow the procedure under Section 29 of the Act, to publish a notice in local newspapers also, inviting objections and suggestions within sixty days. The Government and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated, the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, in as much as these public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222]. Primary Education 154. Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act 1947. Again, to state the reality, even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the Constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall endeavour to provide, within the period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ools. There are wide ranging factors which affect the education of the children at a tender age, such as absence of trained teachers having the proper understanding of child psychology, ill-health, and mal-nutrition. The infrastructural facilities are often very inadequate. Large number of children are cramped into small classrooms and there is absence of any playground attached with the school. This requires adequate spaces for the primary schools. Even in the so called higher middle class areas in large cities like Pune, there are hardly any open spaces within the housing societies and, therefore, adequate space for the playgrounds of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities. Operative order with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nants' building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final. 159. As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants. 160. The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the landowner that his right of development for residential purposes on the concerned plot under the erstwhile Town Planning scheme subsisted in spite of coming into force of Development Plan reserving the plot for a primary school, is liable to be rejected. (iv) The acquisition of the concerned plot of land was complete with the declaration under Section 126 of the MRTP Act read with Section 6 of Land Acquisition Act and the same is valid and legal. (v) The order passed by the High Court directing the Municipal Corporation to move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore necessary. The High Court is expected to decide the revived First Appeal at the earliest and preferably within four months hereafter in the light of the law and the directions given in this judgment. (vi) The developer shall inform the PMC whether he is giving up the claim over the construction of the ten storied building (named 'Sundew Apartments') apart from the tenants' building in favour of PMC, failing which either the developer or the PMC shall take steps for demolition of the disputed building (Sundew Apartments) as per the time frame laid down in this judgment. (v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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