REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 198-199 OF 2000

Shri Girish Vyas & Anr.       …Appellants

Versus

The State of Maharastra & Ors.                   …Respondents

WITH

CIVIL APPEAL NO. 2450 OF 2000

Dr. Laxmikant Madhav Murudkar (since deceased) Through LRs Mrs. Ranjana Laxmikant Murudkar  & Ors.    …Appellants

Versus

The State of Maharastra & Ors.        …Respondents

WITH

CIVIL APPEAL NOS. 2102-2103 OF 2000

Shri Manohar Joshi       …Appellants

Versus

The State of Maharastra & Ors.                  …Respondents

WITH

CIVIL APPEAL NO. 2120 OF 2000

Shri Ravindra Murlidhar Mane       …Appellants

Versus

The State of Maharastra & Ors.       …Respondents

WITH

CIVIL APPEAL NOS. 2105-2106 OF 2000

Shri Rama Nath Jha       …Appellants

Versus

The State of Maharastra & Ors.                    …Respondents

WITH  

CIVIL APPEAL NOS. 196-197 OF 2000

Maruti Raghu Sawant & Ors.       …Appellants

Versus

The State of Maharastra & Ors.                    …Respondents

J  U  D  G  E  M  E  N  T

H.L. Gokhale J.

What is the nature and significance of the planning process for a  

large Municipal town area?  In that process, what is the role of the Municipal  

Corporation,  which  is  the  statutory  planning  authority?   Can  the  State  

Government interfere in its decisions in that behalf and if so, to what extent?  

Does the State Government have the power to issue instructions to the Municipal  

Corporation  to  act  in  a  particular  manner  contrary  to  the  Development  Plan  

sanctioned by the State Government, and that too a number of years after the  

Municipal Corporation having taken the necessary steps in consonance with the  

plan?  Can the State Government instruct a Municipal Corporation to shift the  

reservation for a public amenity such as a primary school on a plot of land, and  

also  instruct  it  to  grant  a  development  permission  for  residential  purposes  

thereon without modifying the Development Plan?  Could it still be considered as  

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an  action  following  the  due  process  of  law  merely  because  a  provision  of  

Development Control Rules is relied upon, whether it is applicable or not?  Or  

where  the  Municipal  Corporation  is  required  to  take  such  contrary  steps,  

supposedly on the instructions of the concerned Minister / Chief Minister, for the  

development of a property for the benefit of his relative, would such instructions  

amount to interference/mala fide exercise of power?  Is it permissible for the  

landowner  and developer  to  defend the  decision  of  the  Government in  their  

favour on the basis of a provision in the erstwhile Town Planning Scheme as  

against the purpose for which the land is reserved under the presently prevalent  

Development Plan?  Is it permissible for the landowner and developer to explain  

and justify such a favourable Government decision by relying upon the authority  

of  the  Government  under  another  section  of  the  statute  which  is  not  even  

invoked by the Government?  What inference is expected to be drawn in such a  

situation  with  respect  to  the  role  played  by  the  ministers  or  the  municipal  

officers?  What orders are expected to be passed when such facts are brought to  

the notice of the High Court in a Public Interest Litigation?  These are some of  

the  issues  which  arise  in  this  group  of  Civil  Appeals  in  the  context  of  the  

provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short  

MRTP Act) concerning a property situated in Pune Municipal area.      

2. These  appeals  arise  out  of  two  writ  petitions  in  public  interest  

leading to concurrent judgments and a common order dated 6th – 15th March  

1999 passed by a Division Bench of the Bombay High Court.  These writ petitions  

bearing nos.4433 and 4434 of 1998 were filed respectively by one Vijay Krishna  

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Kumbhar, a journalist and one Nitin Duttatraya Jagtap, a Municipal Corporator of  

Pune.  The petitions pointed out that a particular plot of land bearing Final Plot   

No.110  (F.P.  No.  110  for  short),  and  admeasuring  about  3450  sq.  meters,  

situated  on  Prabhat  Road  in  the  Erandwana  area  of  the  city,  was  initially  

reserved for a public purpose namely, a garden/playground, and subsequently  

for a primary school.  They further pointed out that a number of years after the  

Pune  Municipal  Corporation  (hereinafter  referred  to  as  PMC)  took  all  the  

necessary steps to acquire this particular plot of land, the landowner one Dr.  

Laxmikant Madhav Murudkar appointed M/s Vyas Constructions,  a proprietary  

concern of one Shri  Girish  Vyas (the appellant  in Civil  Appeal  No.198-199 of  

2000) as the developer of the property.  Shri Girish Vyas is the son-in-law of Shri  

Manohar Joshi who was the Chief Minister of Maharashtra from 14.03.1995 till  

January 1999.  The petitioners contended that only because of the instructions  

from the Urban Development Department (UDD for short) which was under Shri  

Manohar Joshi, that in spite of the reservation for a primary school, the plot was  

permitted  to  be  developed  for  private  residences  flouting  all  norms  and  

mandatory legal provisions.  They sought to challenge the building permission  

which was issued by the PMC under the instructions of the State Government, by  

submitting  that  these  instructions  amounted  to  interference  into  the  lawful  

exercise of the powers of the Municipal Corporation, and the same was  mala  

fide.  After hearing all concerned, the petitions were allowed, and an order has  

been passed to cancel  the Commencement (of  construction)  certificates,  and  

Occupation Certificate, and to pull down the concerned building which has been  

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constructed  in  the  meanwhile.   The State Government  has  been directed  to  

initiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar  

Mane,  the  then  Minister  of  State  for  UDD,  and  the  then  Pune  Municipal  

Commissioner Shri Ram Nath Jha.

3. Being aggrieved by this order, the present group of appeals have  

been filed:

(i) Civil Appeal Nos. 198- 199/ 2000 are filed by the developer Shri Girish  

Vyas and his proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450  

of  2000  is  filed  by  the  landowner  Dr.  Laxmikant  Madhav  Murudkar  (since  

deceased)  to challenge the judgments and the order in their  entirety.   Their  

submissions by and large are similar.   

(ii) Civil Appeal Nos. 2102-2103 of 2000 are filed by Shri Manohar Joshi, the  

then Chief Minister, Civil Appeal Nos. 2105-2106 of 2000 are filed by Shri Ram  

Nath Jha who was the then Pune Municipal Commissioner, and Civil Appeal No.  

2120 of 2000 is filed by Shri Ravindra Murlidhar Mane, the then Minister of State,  

UDD.   These  appeals  seek  to  expunge  the  adverse  remarks  against  the  

appellants, and the order directing criminal investigation against them.   

(iii) Civil Appeal Nos. 196-197 of 2000 are filed by Maruti Raghu Sawant and  

others who were the tenants in this property.  They contend that in the scheme  

prepared by the developer,  they were to become owners  of  their  tenements  

whereas under the original reservation, they were to be evicted.   

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We  may  note  at  this  stage  that  though  the  PMC  accepts  the  

judgment, it has no objection to the tenants continuing as tenants of PMC in the  

building which is constructed for accommodating them on a portion of the very  

plot of land.  The tenants, however, contend that if the plot of land is taken over  

by PMC, they will  remain mere tenants as against the ownership rights which  

were assured to them by the developer and the landlord, and are, therefore,  

continuing to maintain their appeals.

4. All  these appeals  are opposed and the impugned judgment and  

order are defended by the original petitioners as well as by the PMC and the  

State Government.  It is relevant to note that the State of Maharashtra as well as  

PMC had opposed the writ petitions in the High Court, but they have not filed  

any appeals and have now accepted the judgment and order as it is.  Since, all  

these appeals are arising out of the same judgment and order, they have been  

heard and are being decided together, by treating the appeals filed by Shri Girish  

Vyas as the lead appeals.

Facts leading to these appeals

Reservation on F.P. No. 110 for a garden

5. Dr. Laxmikant Madhav Murudkar (since deceased), appellant in Civil  

Appeal  No.  2450  of  2000  (hereinafter  referred  to  as  landowner)  owned  the  

property bearing F.P. No. 110.  The Government of Maharashtra sanctioned a  

Development Plan for Pune City by publishing a notification dated 7.7.1966 in the  

official gazette dated 8.7.1966, which fixed 15.8.1966 as the date on which the  

said plan shall come into force.  (The said plan is hereinafter referred to as 1966  

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D.P. Plan).  Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a  

garden.   The  Plan  was  sanctioned  in  exercise  of  the  power  of  the  State  

Government under Section 10 of the then prevalent Bombay Town Planning Act  

1954 (1954 Act for short).  This notification stated that the PMC had passed the  

necessary resolution of its intention to prepare a Development Plan, carried out  

the necessary survey, considered the suggestions received from the members of  

the pubic under Section 9 of the Act, and after modifying the Plan wherever  

found  necessary,  submitted  it  to  the  Government,  and  thereafter  the  

Government having consulted the Director of Town Planning, had in exercise of  

its power under Section 10 (1) and (2) of the Act, sanctioned the Development  

Plan.

6. Subsequently,  the  1954  Act  was  repealed  and  replaced  by  the  

MRTP Act with effect from 11.01.1967.  However, by virtue of Section 165 (2) of  

MRTP Act, the 1966 D.P. Plan was saved.  Consequently, when the landowner  

applied for the sanction of a layout in F.P. No.110, the same was rejected by  

PMC.  Therefore, the landowner served on the State Government a notice dated  

8th May 1979 under Section 49 (1) of the MRTP Act, calling upon it to purchase  

the land and to “commence the proceedings for acquisition”.  The notice stated  

that the F.P. No.110 was not acquired within the period of 10 years granted to  

the Planning Authority to implement the D.P. (for the Pune Municipal area, PMC  

is the Planning Authority).  It further stated that as per his understanding, the  

D.P. was under revision but the reservation on petitioner’s F.P. No.110 had not  

been changed, and ‘the reservation will never be cancelled and the final plot will   

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never be handed back’ to him.   The State Government confirmed the purchase  

notice  under  Section  49  (4)  of  the  Act  by  its  letter  dated  5.12.1979.   The  

Government’s  letter  informed the landowner  that  necessary  instructions  have  

been issued to the PMC, and he may approach their office.

Steps for acquisition of F.P. No. 110

7. The standing committee of the PMC thereafter passed a resolution  

on 5.1.1980 to initiate the proposal for acquisition.  The PMC then forwarded the  

proposal to the Collector of Pune on 9.5.1980 to take the steps for acquisition.  

On  27.8.1981,  the  State  Government  notified  the  land  for  acquisition  under  

Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act  

1894 (for short L.A. Act).  A Special Land Acquisition Officer (S.L.A.O. for short)  

was appointed to perform the functions of the Collector.  A notice informing the  

initiation  of  the proceedings  under  the  L.A.  Act  as  required  under  Section  9  

thereof  was  issued  on  8.9.1981  seeking  claims  for  compensation.   The  

landowner replied to the notice, but did not challenge the acquisition.  He filed  

his  claim  statement  during  the  acquisition  proceeding,  and  demanded  the  

compensation  at  the  rate  of  Rs.  480  per  sq.m,  and  also  that  the  material  

removed after demolition of the temporary structures (of the tenants) on the  

property should be given to him.  Twenty four tenants filed a common claim  

statement and objected to the acquisition, but did not seek any compensation.  

They specifically stated that ‘there will not be any objection if they are provided  

with  alternative  accommodation  on  the  land  to  be  acquired’.   The  S.L.A.O.  

passed his award under Section 11 of the L.A. Act on 12.5.1983.  He rejected the  

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objections of the tenants, and awarded the compensation of Rs. 100 to each of  

the 25 tenants.  He determined the compensation payable to the landowner at  

Rs.  6,10,823/-.    On  15.3.1985  the  landowner  withdrew  the  amount  of  

compensation by furnishing necessary security, though under protest.   

8. After the Award was made by the S.L.A.O. on 12.5.1983 as stated  

earlier,  a  notice  under  Section  12  (2)  of  the  L.A.  Act  was  given,  to  take  

possession of the land on 20.5.1983.  Once again, only the tenants objected  

thereto.   They  filed  a  suit  on  19.5.1983  in  the  Court  of  Civil  Judge,  Senior  

Division, Pune, bearing Suit No. 966 of 1983, to challenge the acquisition and the  

Award.   The landowner  was  joined  therein  as  defendant  No.  3.   The Court  

granted  an  interim  injunction  on  19.6.1983,  restraining  the  authorities  from  

taking possession.  However, after hearing the parties, an order was passed on  

9.2.1984 vacating the injunction, and returning the plaint for failure to give the  

mandatory notice required under Section 80 of the Code of Civil Procedure.  The  

tenants filed an appeal to the District Court against that order, but the same was  

also  dismissed.   Thereafter,  the  tenants  made  a  representation  to  the  then  

Minister of State for UDD, pointing out their difficulties, which persuaded him to  

pass an administrative order restraining the authorities concerned from taking  

possession of F.P. No. 110.   

9. It  is  pertinent  to  note  that  all  along,  the  landowner  did  not  

challenge the acquisition of his land in any manner whatsoever. On the other  

hand, he sought a Reference under Section 18 of the L.A. Act for enhancement  

of the compensation. The District Court dismissed that Reference bearing No.  

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273 of 1983 by order dated 15.4.1988, but enhanced the solatium and additional  

amount payable under Section 23(2) and 23(1A) of the L.A. Act.  The amount  

payable under the order of the District Court was collected by the landowner,  

though under protest, but he did not prefer the appeal permissible under Section  

54 of the L.A. Act.

Revision  of  the  D.P.  Plan  for  Pune  under  the  MRTP  Act  and  

change of utilisation of F.P. No. 110 to a Primary school

10. In the meanwhile, the process of revising the Development Plan of  

Pune city under the provisions of MRTP Act was going on.  The PMC as the  

planning authority had passed a resolution on 15.3.1976 declaring its intention to  

prepare a Revised Development Plan under Section 23 (1) read with Section 38  

of the MRTP Act. The State Government appointed the Director of Town Planning  

to be the Special  Officer for that purpose under Section 162 (1) of that Act.  

After observing all the legal formalities, the said Director published in the official  

gazette on 18.9.1982 the Revised Draft Development Plan under Section 26 (1)  

of the Act.  In that plan F.P. No. 110-112 were initially reserved for children’s  

play-ground, but subsequently the reservation was changed to primary school.  

After inviting the objections and suggestions, and after considering them, the  

State Government sanctioned the Revised D.P. Plan on 5.1.1987 (though with a  

few modifications),  to be effective from 1.1.1987 (hereafter referred as 1987  

D.P. Plan for short) as also the Development Control Rules (D.C. Rules for short).  

In the sanctioned D.P. Plan of 1987, the purpose of utilization of these three  

plots was, as stated above changed to primary school.   

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The modification with respect to these three plots was as follows:–  

“Reservation continued.  Development allowed as per note 4”.   

Note 4 reads as follows:-

“Sites designated for Primary Schools from Sector I   to  VI  as  may  be  decided  by  the  Pune  Municipal   Corporation  may  be  allowed  to  be  developed  by   recognized  public  institutions  registered  under  Public   Charitable Trust Act, working in that field or the owners of   the land.”

Thus by virtue of this note, the purpose could also be effectuated either by the  

owner of the land, or by a recognized charitable institution.

11. It is relevant to note at this stage that a school for the handicapped  

children has come up in the adjoining F.P. No. 111.  Besides, a primary school  

was  set  up  by  Symbiosis  International  Cultural  and  Educational  Centre  

(‘Symbiosis’ for short) on F.P. No. 112.  It is stated that Symbiosis and another  

educational  institution  viz.  Maharashtra  Education  Society  (MES)  had  sought  

these plots since they were in need of land for extension of their educational  

activities.   The  then  Chief  Minister  of  Maharashtra  had  recommended  the  

proposal of MES by his letter dated 9.4.1986, and the society had applied to the  

then Commissioner of Pune by its letter dated 29.4.1986.  That was, however,  

without any effect.

12. The  S.L.A.O.  gave  one  more  notice  to  take  possession  of  F.P.  

No.110 on 1.3.1988.  It led to the filing of Regular Civil Suit bearing No. 397 of  

1988 by some of the tenants in the Court of Civil Judge, Senior Division, Pune  

against the State Government and PMC, once again challenging the award of the  

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S.L.A.O.,  and  seeking  an  injunction  to  protect  their  possession.   The  Court  

granted the interim injunction as sought.  Thereafter the landowner, who was  

one of the defendants in the suit, applied for transposing himself as a plaintiff,  

which prayer was allowed on 2.4.1988.  The Court accepted the contention of  

the tenants that the acquisition had lapsed due to the change of purpose of  

reservation from what it was in 1966 viz. a garden by the time the award was  

made, and, therefore, decreed the suit by its order dated 23.4.1990.   

13. The PMC preferred a first appeal against that decree to the Bombay  

High Court on 7.1.1991, but the Additional Registrar of the High Court returned  

the appeal by his order dated 21.4.1992 for presentation to the District Court on  

the basis of the valuation of the suit, and the provision for jurisdiction as it then  

existed.   Accordingly,  the  PMC  filed  the  appeal  before  the  District  Court  

immediately on 29.4.1992, but the District Court in turn, by its order passed two  

years  later  on 7.4.1994 returned the  appeal  for  re-presenting  it  to  the High  

Court, on the ground that the suit was valued above Rs. 50,000/- and as per the  

rules then existing the appeal would lie to the High Court.  PMC once again filed  

the appeal in the High Court being F.A (Stamp) No. 18615 of 1994 on 18.7.1994,  

alongwith  an  Application  for  condonation  of  delay  for  the  reasons  as  stated  

above.  This Appeal remained pending till it was withdrawn on the direction of  

the State Government on 18.8.1998, in the circumstances which will be presently  

pointed out.  It is, however, relevant to note that this appeal was withdrawn at a  

point of time when the two public interest petitions were filed on 12.8.1998, and  

were pending in the High Court.  The impugned order of the Division Bench on  

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these petitions has directed the PMC to move an Application before the High  

Court  for  reviving  the First  Appeal  (Stamp No.18615 of  1994),  and pursuant  

thereto the PMC has already moved the necessary Application on 13.1.2000.  Be  

that as it may.

Steps taken by the landowner after Shri Manohar Joshi  

took over as the Chief Minister of Maharashtra

14. It is material to note that after the decision of the Reference Court,  

the landowner entered into an agreement of sale of the concerned land with one  

Shri Mukesh Jain on 17.8.1989, though no steps were taken thereafter by either  

of the parties on the basis of that agreement.  It so happened that consequent  

upon the elections to the State Assembly, a new Government came in power in  

the State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the  

Chief Minister (hereinafter referred as the then Chief Minister).  He retained with  

himself the UDD portfolio.  The earlier referred Shri Ravindra Mane became the  

Minister of State for UDD (hereinafter referred to as the then Minister of State).  

On 20.10.1995 the landowner entered into a Development agreement with M/s  

Vyas Constructions by virtue of which the landowner handed over all rights of  

development in the property to them for a consideration of Rs. 1.25 crores, a flat  

of 1500 sq. feet area and an office space of 500 sq. feet in the building to be  

developed on F.P. No. 110.  The agreement stated that it was being entered into  

to solve the practical difficulties. Para 7 thereof stated that the developer shall  

follow the procedure or process of de-reservation of the said property. Para 20  

and 21 stated that ‘after de-reservation of the property, the developer agrees to  

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get the clearance under the Urban Land (Ceiling and Regulation) Act 1976 which  

may be necessary,’ and for that purpose he was authorised to get any scheme  

sanctioned. M/s Vyas Constructions is stated to have settled the claim of above  

referred  Shri  Mukesh  Jain.   On  the  same  day,  the  landowner  executed  an  

irrevocable Power of Attorney in favour of Shri Girish Vyas for the development  

of F.P No. 110. (He is referred hereinafter as the developer).  The landowner  

simultaneously executed another Power of Attorney in favour of one Shri Shriram  

Karandikar on 26.10.1995, authorising him to take necessary steps concerning  

the development of that land.   

15. Thereafter, on 1.11.1995 the architect of the landowner submitted  

to PMC a building layout for permission for residential use of F.P. No. 110.  The  

City Engineer of PMC rejected the proposal by his reply dated 6.11.1995 under  

Section 45 of the MRTP Act read with Section 255 of the Bombay Provincial  

Municipal Corporations Act 1949 (BPMC Act for short) and D.C. Rule No. 6.7.1,  

since  the  plot  had  been  reserved  for  a  primary  school,  and  hence  such  a  

permission could not be granted.  It was however pointed out in this reply of the  

City Engineer that the development of the land was permissible in the manner  

indicated in the note No.4 published in the gazette which has been referred to  

hereinabove (i.e. putting up a primary school either by the landowner or by a  

charitable trust).

16.  At this stage, landowner’s Attorney holder, Shri Shriram Karandikar  

wrote to the Minister of State for UDD on 20.11.1995 seeking a direction to the  

Municipal  Commissioner  to  sanction  landowner’s  aforesaid  application  dated  

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1.11.1995 for development of the property for residential houses.  He relied on  

the decree of Civil Judge Senior Division in Civil Suit No.399 of 1998 and prayed  

for correcting the Development Plan also.  From here onwards starts the role of  

the  then  Minister  of  State,  the  Municipal  Commissioner,  and  the  then  Chief  

Minister.

 Processing of the application dated 20.11.1995 on behalf of the  

landowner at the level of the State Government

17. In their petitions to the High Court, the writ petitioners made the  

allegation of mala fides on the part of the then Chief Minister and the Minister of  

State for UDD in entertaining the application made on behalf of the landowner.  

It, therefore, became necessary for the Division Bench of the High Court to call  

for the original record from the State Government as well as from the PMC.  The  

application dated 20.11.1995 made by Shri Karandikar on behalf of the landlord  

narrated  the  developments  until  the  date  of  that  application  including  the  

judgment  and  decree  of  the  Civil  Court  setting  aside  the  acquisition  of  the  

property.   It  was,  thereafter,  submitted  that  the  Municipal  Commissioner  be  

directed to sanction the development permission as per the application of the  

architect of the landowner.  It is relevant to note that as far as this application of  

Shri Karandikar is concerned, it was not addressed to the State Government or to  

the Secretary of the concerned Department, but directly to the Minister of State  

for  UDD,  which  fact  is  noted  by  the  Division  Bench  in  its  judgment.   The  

application  did  not  bear  any  inward  stamp  of  UDD.   In  the  margin  of  the  

application, there was a noting by the Private Secretary of the Minister of State  

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for UDD, recording that the Minister had directed the Deputy Secretary, UDD, to  

call a meeting on 19.1.1996.  The record further shows that although the Under  

Secretary  of  UDD Shri  P.V.  Ghadge accordingly  called  the initial  meeting,  by  

addressing  a  letter  to  the  Director,  Town  Planning  and  the  Municipal  

Commissioner, the same was adjourned to 22.1.1996.  On that date, the meeting  

was attended by the Director of Town Planning, the Deputy City Engineer of  

PMC, Deputy Director of Town Planning, Pune, as well as by Shri Karandikar and  

his advocate, but what happened in that meeting is not reflected in this file.

Initial Stand of Urban Development Department and PMC  

18. The Under  Secretary  (Shri  P.V.  Ghadge)  prepared  a  preliminary  

note  dated  2.2.1996  for  the  subsequent  meeting.  At  the  outset,  the  note  

mentions in a nutshell  the background for the meeting which was sought on  

behalf  of  the  landlord.   Thereafter  it  gives  the  initial  opinion  of  the  U.D.  

Department at the end of the note, which is as follows:-  

“In  this  regard  it  is  the advice  of  the department  that,   acquisition has been done after taking action on the purchase   notice.  The compensation amount has been accepted.  Even if   the  reservation  of  the  plot  is  changed,  it  does  not  make any   difference.  Directions be given to the Pune Municipal Corporation   to immediately present this matter in the Bombay High Court.   The question of returning the plot to the land owner does not   arise.”

19. On the background of this departmental note containing its advice,  

a meeting was held on 3.2.1996 presided over by the Minister of State for UDD,  

and the minutes of the meeting are part of the record placed before the High  

Court.  Apart from Shri Karandikar and his advocate, high ranking officers such  

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as (i) Secretary, UDD, (ii) Director, Town Planning, (iii) Commissioner, PMC, (iv)  

City Engineer, PMC and (v) Under Secretary, UDD were present in the meeting.  

The minutes of the meeting are recorded by the Under Secretary.   

20. These  minutes  record  that  in  this  meeting  the  advocate  of  the  

applicant explained the facts leading to his client’s application, justifying as to  

why the reservation  on the land may be deleted.   He referred to the Court  

proceedings, the fact that 25-30 tenants were residing on the property for many  

years, and that on the adjoining property a school was running.  He therefore  

submitted that the reservation on the land be deleted.   

21. The note records a preliminary query raised by the Secretary, UDD  

as  to  whether  the  advocate  was  pleading  on  behalf  of  the  tenants  or  the  

landowner,  to  which  the  Advocate  replied  that  he  was  pleading  for  the  

landowner.  The Secretary, UDD raised two more queries viz. (i) if the land was  

not useful for reservation because of the tenants, then how will it be available to  

the  landowner,  and  (ii)  whether  the  landowner  had  ever  objected  to  this  

reservation, to which the advocate replied in the negative.

22. The  City  Engineer,  PMC  pointed  out  during  the  meeting  that  

consequent upon the property owner issuing the purchase notice, the PMC had  

acquired the land, the award was made, the property owner had accepted the  

compensation, and that he never objected to the change in reservation due to  

the revision of the D.P. Plan during the entire period of revision i.e. 1982-87.  

With respect to the proceedings initiated by the tenants, he pointed that PMC  

17

had filed an Appeal in the Bombay High Court against the judgment of the Civil  

Court, and the matter was sub-judice.  He specifically asked whether the hearing  

given to the applicant was on an appeal under Section 47 of the MRTP Act, or  

was  it  on  his  application.   He  pointed  out  that  the  property  was  under  

reservation, and it could not be de-reserved in an appeal under Section 47.  It  

required an action in the nature of modification under Section 37 of the MRTP  

Act.  If it was an appeal, then it may be rejected, and if it was an application for  

modification then a decision cannot be taken as the matter was sub-judice.  On  

these queries it was stated on behalf of the landowner that his application was a  

request and not an appeal.

Directions by Minister of State and report made by the Municipal  

Commissioner in pursuance thereof

23. It was thereafter pointed out on behalf of landowner that on the  

adjoining two plots, schools had been developed, and the Corporation may not  

need this land.  The note records that in view of this submission, the Minister of  

State,  UDD asked the  Municipal  Commissioner  to  examine  whether  the  PMC  

really needed the concerned property.  He also suggested that it be examined, if  

PMC  can keep  some portion  of  the  land  under  reservation,  and  release  the  

remaining to the landowner.  If such a compromise is to be arrived at, then the  

property owner will have to accommodate the tenants on a portion of property  

released to him.  If PMC did not have any objection to reduce the area under  

reservation, Government will issue the necessary direction to take action under  

Section 37.  The note records at that stage, that the Municipal Commissioner  

pointed  out  that  the  permission  of  the  Municipal  Corporation  (meaning  the  

18

general body) was necessary to either delete the reservation, or to reduce the  

area under reservation.   

24. The file shows that accordingly the Under Secretary wrote to the  

Municipal Commissioner on 14.2.1996 requesting him to examine the possibility  

regarding any settlement after a site inspection, and to forward his opinion.  He  

was also asked to inform as to when had the PMC filed its appeal in the Bombay  

High Court, and about its status.   

25. The file shows that at this stage, the landowner changed his stand.  

Shri Karandikar wrote another letter dated 23.3.1996 to the Minister of State that  

his application be treated as an appeal under Section 47 of the MRTP Act.

26. The  Municipal  Commissioner  replied  Government’s  letter  dated  

14.2.1996 by his letter dated 17.4.1996.  He pointed out that the development  

permission for this particular plot had been rejected because the property was  

under  reservation.  Then  he  reiterated  the  position  of  PMC  as  stated  in  the  

meeting of 3.2.1996.  Then he added –  

”On 3.2.1996 we took the same stand which was taken by   us in various counts and administrative levels regarding dispute   for  the  development  of  property,  and  that  if  any  change  is   proposed in the use of the said property, permission has to be   taken from the Pune Municipal Corporation.  The Hon’ble Minister   of State for urban development ordered us to survey the subject   property and also ordered to explore the options of changing or   reducing the area of the reservation.”   

27. The Municipal  Commissioner  then stated that  before  considering  

the various options as directed by the State Government, it was necessary to  

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note the background of the subject property; viz. that as per the 1966 D.P. Plan,  

it was reserved for a garden, and subsequently the reservation was changed to a  

Primary School in the draft D.P. Plan of 1982 confirmed in 1987.  He referred to  

the litigation initiated by the tenants, the fact that the PMC had filed an appeal to  

the High Court against the decision in the Civil Suit No. 397/1988, and that the  

High Court sent back the matter to the District Court and it was pending there.   

He placed on record the fact that though full price of the land was paid to the  

owner, procedure of taking actual possession by the PMC was still pending for  

last 13 years, because of which it was not possible to make appropriate use of  

the land.  The Minister had asked him to survey the subject property, and to  

explore the possibility  of  changing or reducing the area of  reservation.   The  

commissioner pointed out that a survey was carried accordingly.  He recorded  

that on inspection following facts were mainly noted:-

“1. There are about 36 temporary Houses on the land. 2. Out of the total area nearly half is encumbered.

3. Two  Educational  Institutions  in  the  vicinity  of  the   School.

4. There are 11 Educational Institutions in the vicinity   of the School.

5. Except the temporary Houses on this property the   development of the area is planned and corporation  has control over it.”

The Commissioner however, did not specify as to which area of the city was  

considered by him when he spoke about ‘vicinity’ in item No. 4 above.

28. The land was to be developed either by PMC or the owner or by a  

Charitable  Trust  as  per  the  D.P.  Note  4  referred  to  above.   The  Municipal  

Commissioner then gave his opinion that development of a primary school on  

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that plot by a charitable institution appeared impossible due to various factors  

such  as  the  order  of  the  Civil  Court,  litigation  concerning  this  plot,  the  

requirement of rehabilitation of the tenants on that plot, and existence of near-

by schools.  Besides, the area being a higher middle class area, the response to  

a municipal school was doubtful.  He then added as follows - ‘considering the  

funds  available,  the  PMC  is  inclined  to  develop  school  on  some  other  plot  

reserved  for  school’.   As  we  have  noted  earlier  two  well-known educational  

institutions, viz. MES and Symbiosis had already sought this plot also. The PMC  

had however replied to them that it was not possible for it to give them this plot,   

since it was not in the possession of PMC.  The Municipal Commissioner failed to  

bring these very relevant facts to the notice of the Government.  Having noticed  

these facts, the Division Bench has observed in para 143 of its judgment that the  

Commissioner’s statement in this behalf in his report was “far from truth”.   

29. The Commissioner then recorded that in view of the direction of  

the  State  Government  to  suggest  alternatives  for  settlement,  he  had  in  the  

meanwhile, held discussions with Shri Karandikar, and that Shri Karandikar had  

expressed readiness to give alternate unencumbered land within suburbs of Pune  

admeasuring 5000 to 10000 sq. feet free of cost.    Thereafter, in view of the  

direction  of  the  State  Government  and  proposals  from  Shri  Karandikar,  the  

Commissioner recorded two suggestions:-

“1. Presently reserved area is about 3541 sq.mtrs out of   which nearly 50% area is occupied by occupants and remaining   area is open.  The land owner after excluding the area occupied   by the existing houses, to transfer the remaining area to the Pune   Municipal Corporation for school.  However, since the land owner   

21

has accepted compensation for the entire area, for the area to be   transferred, he should refund the amount to the Pune Municipal   Corporation  at  the  rate  suggested  by  the  Director  of  Town   Planning.

2. To  get  transferred  land  admeasuring  3000  sq.mtrs   elsewhere  at  a  convenient  place  in  Pune  City  with  school   admeasuring 500 sq.mtrs constructed thereon free of cost as per   specifications  of  the  Pune  Municipal  Corporation,  and  for  that   purpose it is necessary to get executed a proper agreement.  But   land  to  be  given  elsewhere  should  not  be  reserved  in   development plan for school or some other purpose.”

Thereafter his letter stated as follow:-

“If first proposal is to be accepted for developing school on   remaining area question regarding decision of Civil Judge, Senior   Division would arise.  In this situation it is necessary to have the   support  of  the  land owner  and tenants  for  this  proposal.   For   implementing  both  the  aforesaid  proposals  suggested  by  us  it   would be appropriate if the following things are complied with:-

1. The  Pune  Municipal  Corporation  administration  to  take   permission from the Pune Municipal Corporation before releasing   rights in respect of the subject property.

2. For  deleting  reservation  on  the  property  taking  action   under Section 37 of M.R.T.P.

3. For acquiring new site as per Proposal No.2 permission of   concerned  Departments  of  the  Pune  Municipal  Corporation  will   have to be taken.

Then the Commissioner added:-

Prior to this since no such settlement matters have taken place   regarding the development plan of Pune Municipal  Corporation,   the  experience  of  Pune Municipal  Corporation  in  this  regard  is   limited.  Till the next order is received from the State Government   the  Pune  Municipal  Corporation  is  continuing  the  judicial   procedure in respect of this land.”

30. After the receipt of the letter dated 17.4.1996 from the Municipal  

Commissioner, the file shows the following noting dated 24.4.1996:-

“ Mantralaya, Bombay 400 032

22

Date 24/4/1996

According to the instructions of Shri Chavan, Private Secretary   of the Hon’ble Chief Minister, please forward a copy of the report of   the Pune Municipal Corporation in the matter of Shri Karandikar for   the perusal of the Hon’ble Chief Minister.

Shri Ghadesaheb Sd/- Under Secretary Private Secretary N.V. Minister of State for Finance,

Planning and Urban Development

Government of Maharashtra”

31. On  receiving  the  above  reply  dated  17.4.1996  from  Municipal  

Commissioner, Shri Ghadge, the Under Secretary once again put up a detailed  

note  thereon.   In  first  8  paragraphs  of  that  note  he  recorded  the  previous  

developments, including and upto the letter sent by the Municipal Commissioner.  

Thereafter in paragraph 9, 10 and 11 he put up the proposal of the department:-

“9. Considering the entire aforesaid circumstances, it is   firstly pointed out that applicant Shri Karandikar has approached   the Government on behalf of the land owner but the land owner   has already taken the price of the said property in the year 1983.   Though  the  physical  possession  of  the  said  property  is  not   received  to  the  Municipal  Corporation  still  however,  legally   Municipal  Corporation has become owner of the said property.   Therefore, the Land Owner does not have any right to demand   return  of  the  said  property  by  deleting  reservation.   Now  considering  the  tenants,  they  have approached  the  Court  and   therefore,  it  is  not  necessary  to  consider  that  aspect  till  the   matter is decided by the Court.   If  the said matter is  decided   against the Municipal Corporation still the said persons shall be   tenants and the land owner shall be Municipal Corporation and   further that the tenants have requested for allotment of the land   for developing it.

10. Still however considering the fact that no way out   will be available if the matter is kept pending as it is, and further   considering that there are numerous schools in the vicinity of the   said  property,  there  should  be  no  objection  to  consider  and   approve on government level the alternative No.1 suggested by   

23

the Municipal Commissioner. However, for the said purpose the   tenants will  have to withdraw their proceedings from the Court   and they will have to pay to the Municipal Corporation the cost   price of the 50% portion to be released for the said tenants as   may be determined by the Director, Town Planning.  If the said   alternative is acceptable to the land owner, the Pune Municipal   Corporation be informed about the orders of the Government to   initiate proceedings u/s 37 for the purposes of deletion of 50%   property from reservation and to forward the said proposal to the   Government.

11. Second  alternative  does  not  deserve  any   consideration  since  for  shifting  the  reservation  the  alternative   property should have the same area like that of the original one   and  that  it  is  necessary  that  such  property  should  be  in  the   vicinity  of  approximately  200  mtrs.  from  the  property  under   reservation.  So also the matters like approach road and level of   the land are also required to be similar.  (MARGINAL REMARK –   Rule No.13.5 of Pune Development Control Rules).  

12. Proposal in paragraph 10 submitted for approval.”

The note was countersigned by Shri Deshpande, Deputy Secretary,  

Town Planning on 4.6.1996, and by the Senior Chief Secretary (NV i.e. Nagar  

Vikas   or Urban Development).  Thus the Urban Development Department did  

not accept the second proposal of the Municipal Commissioner to remove the  

reservation on the plot in its entirety, but recommended the acceptance of the  

first proposal to reduce the reservation on the plot to 50% of its area.  The  

Minister  for  State  however  did  not  sign  the  note  and  he  ordered  a  further  

discussion on the subject on 12.6.1996.

32. Thus there was once again a discussion with the Minister of State,  

UDD on 12.6.1996 when Shri Karandikar, Shri Harihar, City Engineer, PMC, Shri  

Deshpande, Deputy Secretary, Town Planning and Shri Ghadge, Under Secretary  

were  present.   Shri  Ghadge  made  a  note  of  the  meeting  and  signed  it  on  

24

13.6.1996, and which note is also signed by Shri Deshpande and the Additional  

Chief Secretary.  The note records that on behalf of the applicants it was stated  

that it was not possible for them to accept the alternative no.1, and Municipal  

Corporation should consider the second alternative.  The note further records  

that thereupon the City Engineer suggested that if the applicant shows some  

other alternative properties, the Municipal Corporation will  inspect all of them  

and then consider as to which of them is possible to be accepted.  The note  

thereafter records as follows:-

“In  the  event  such  alternative  property  is  selected  by   Municipal  Corporation,  then action  to be taken for  shifting  the   reservation from the subject  property  as per  Rule  No. 13.5 of   Pune Development Control Rules can be considered.  However, it   was  clarified  by  the  Department  that  for  that  purpose  the   condition of 200 mtr.  Distance will  have to be relaxed and for   which  the  permission  of  Hon.  Chief  Minister  will  have  to  be   obtained”.

The PMC was thereafter asked to submit its response in the light of  

above  discussion.   Shri  Ghadge  recorded  this  suggestion  in  his  letter  dated  

20.6.1996 addressed to the Municipal Commissioner.

33.  The  Municipal  Commissioner  then  wrote  back  to  the  Under  

Secretary, UDD by his letter dated 15.7.1996, pointing out that the applicant had  

shown  four  sites  from  which  one  at  Lohegaon  Survey  No.261  H.No.1/2  

admeasuring 3000 sq.meter was suitable for a primary school, but it was in the  

Agricultural  zone as per the approved D.P.,  and if  it  was to be converted to  

Residential zone, the approval of the State Government will have to be obtained  

for such a modification.

25

34. On  receiving  this  letter  from  the  Municipal  Commissioner,  Shri  

Ghadge once again put up a detailed note and at the end of para 8 thereof  

stated as follows:-

“Considering the above circumstances and especially ‘A” on 12 T.V.   and B on 14 T.V., there could be no objection in granting permission   for shifting reservation under Rule 13.5 of the D.C. Rules by relaxing   the 200 meter condition and accordingly directions can be given to the   PMC for taking the following necessary action:-

1. The Pune Municipal Corporation should recover the amount of   compensation  paid  earlier,  for  acquisition  of  final  plot  No.110  at   Earndwane together with the structures, with simple interest.

2. The  State  Government  should  issue  directions  to  the   Pune Municipal  Corporation  for  getting  the plot  at  Lohegaon,  Pune   Survey  No.261  Hissa  No.1/2  from Agricultural  zone  into  residential   zone  by  following  the  procedure  under  Section  37(1)  of  the   Maharastra  Regional  and  Town  Planning  Act,  1966  and  thereafter   submitting the proposal to the State Government for sanction.

3. The  Commissioner  Pune  Municipal  Corporation  should   take action for shifting the reservation for Primary School on Final Plot   No.110 in the Development Plan of Pune City under Rule 13.5 of the   Development Control Rules, Pune to Lohegaon, Survey No.261, Hissa   No.1/2 and for that purpose the permission of the Corporation is not   necessary  as  intimated earlier  by the State Government in another   case [Survey No.39/1, Kothrud, Pune].

4. After  complying  with  (1)  and  (3)  above,  the  Pune   Municipal Corporation should enter into an Agreement for transfer of   the  land  at  Lohegaon  Pune  and  thereafter  give  development   permission  for  the  plot  at  Erandwane.   However  the  Completion   Certificate for that place should not be issued unless the construction   of School at Lohegaon is completed.”

Below that note there are signatures as follows:- “Sd/-

     26/7/96       (P.V. Ghadge)   Under Secretary

Sd/-      26/7/96  

(Shri Deshpande)

26

Deputy Secretary Town Planning

 Sd/-      26/7/96   

     Additional Chief Secretary, (U.D.)

Sd/-     30/7/96  

Hon’ble Minister of State (U.D.) Received 31/7/96

All action be taken in accordance with law.  No objection.

 Sd/-       21/8/96

Hon. Chief Minister“

35. In  view of  the  above  decision  signed  by  the  Chief  Minister  on  

21.8.1996, the Deputy Secretary, UDD sent a letter/order dated 3.9.1996 to the  

Commissioner containing exactly the above four conditions.  The letter stated  

that  he  had  been  ordered  by  the  State  Government  to  inform  those  four  

directives, and after quoting those four directives the letter further directed the  

Corporation  to act  as per  the above State Government directives  and report  

compliance.  The letter reads as follows:-

“ENGLISH TRANSLATION OF STATE GOVERNMENT LETTER DATED  03/09/1996

(MAHARASHTRA STATE)

No.TPS-1896/102/Matter No.7/96/U.D.-93 Urban  Development  Department  Mantralaya, Mumbai 400 032

Date : 3rd September, 1996

To, The Commissioner Pune Municipal Corporation

27

Pune

Sub: Development Permission of T.P. Scheme No.1, Final Ploat  No.110.

Ref: Request Application dated 20/11/95 by Shri Shriram  Karandikar to Minister of State for Urban Development for   Development in the subject matter.

Sir,

I have been ordered by the State Government to communicate to you the   following directives.

1. The  Pune  Municipal  Corporation  should  recover  from the   land owner  according  to  the  land  acquisition  law  the   principal amount paid for acquisition of Final Ploat No.110,   Erandwane along with construction, with interest thereon   at 12%.

2. S.No.261  Hissa  No.1/2  Lohegaon,  Pune  which  is  in   agricultural zone should be included within residential zone   in the Development Plan.  For doing this you are directed   that Pune Municipal Corporation should complete the entire   legal  action  under  Section  37  (1)  of  the  Maharashtra   Regional  and  Town  Planning  Act,  1966  and  send  the   proposals to the State Government for sanction.

3. The Commissioner, Pune Municipal Corporation should take   steps  to  shift  the  reservation  of  primary  school  in   accordance with Rule 13.5 of the Development Control Rules   from Final Plot No.110, Erandwane to Lohegaon S. No.260   Hissa No.1/2.  For this purpose no sanction is required from   the  Pune  Municipal  Corporation  as  has  been  earlier   communicated  to  you  in  another  matter  (S.No.39/1   Kothrud).

4. After action as stated in (1) and (3) above is completed,   appropriate agreement be entered into by Pune Municipal   Corporation  with  land  owner  about  transferring  the   Lohegaon plot  and thereafter  Development  permission  be   granted in respect of the Plot  at Erandwane, however no   completion certificate for that place be granted unless the   construction of school at Lohegaon is complete.

Corporation  to  act  as  per  the  above  State  Government  directive  and   submit report regarding compliance to the Government.

28

Yours faithfully,

Sd/-     Vidyadhar Deshpande

           Deputy Secretary”

Notings from the Municipal Files:-

36. Thereafter we have the notings from the Municipal files which show  

that consequently the City Engineer has written to landowner on 27.9.1996 to  

return the amount paid to him for acquisition of final Plot No.110 T.P. Scheme,  

No.1 with interest at the rate of 12%, and secondly to transfer concerned land  

bearing survey No.261 Hissa No.1/2 at Lohegaon free of cost and without any  

encumbrances.  The letter further stated that only after compliance of the above  

two conditions he will be given permission for development of F.P. No.110.  It  

then  stated  that  building  completion  certificate  will  be  given  only  after  the  

procedure under Section 37 (1) of the MRTP Act for deleting Survey No.261  

Hissa 2/1 at Lohegaon, Hadapsar from the agricultural zone, and reserving it for  

primary school is completed, and sanctioned by the State Government.   

37. Thereafter there is one more note of the Municipal Commissioner  

dated 21.9.1996 which records the opinion of the Senior Law Officer that the  

permission of  the general  body of PMC will  be required  for  entering into an  

agreement for deleting the reservation of plot at Erandawana.  With respect to  

the same the commissioner has recorded as follows:-

“However,  since  the  State  Government  has  given  clear   orders to take action under Rule 13.5 of the Development Control   Rules of Pune for complying with the subject matters and since   

29

directives  have  been  given  for  making  such  change,  no   permission of the Pune Municipal Corporation is necessary”.  

Subsequent Developments

38. Consequently,  the  subsequent  steps  have  been  taken.   The  

landowner has returned the amount as sought, a deed of settlement has been  

entered  into  between  the  landowner  and  the  PMC,  and  Commencement  

Certificates have been issued on 28.11.1996 and 3.5.1997 for the two buildings  

proposed to be constructed.  An Occupation Certificate dated 20.12.1997 was  

also  given  for  a  part  of  the  building  completed  thereafter  namely,  B  Wing  

containing 24 flats for the tenants.  It is however interesting to note that PMC  

instructed its  counsel  on 19.11.1996 to withdraw its  first  appeal  in the High  

Court as directed by the Government even before the landowner returning the  

amount of compensation with interest on 22.11.1996.

39. It has so transpired that though the land at Lohegaon was handed  

over to PMC as proposed, subsequently the Municipal  Corporation found that  

there was not so much need of a school at Lohegaon, but a school was needed  

at Sinhagad Road, Dattawadi.  The procedure for changing the zone of the land  

at Lohegaon as required under Section 37 of the MRTP Act was also taking its  

own  time  at  the  municipal  level.   Once  again  there  was  a  correspondence  

between the PMC and the Government in this behalf. The Commissioner wrote  

to the Dy. Secretary, UDD on 28.5.1998 for a modification in the conditions in  

the  Government  letter  dated  3.9.1996  to  get  the  school  constructed  at  

Dattawadi (instead of Lohegaon) in lieu of the school reservation on plot no. 110  

30

at Prabhat road. At this stage for the first time we have the letter from the  

developer dated 15.7.1998 addressed to the City Engineer of PMC signed by Shri  

Girish Vyas for the Vyas Constructions, stating that he was prepared to offer an  

alternative  site  admeasuring  3000  sq.  meters  at  Mundhwa  within  PMC  area  

which  is  in  residential  zone.  This  was  to  avoid  the  difficulty  concerning  the  

change of zone. Additionally he was prepared to deposit an amount with PMC  

equivalent to the cost of construction of 500 sq. meters as per PMC’s standard  

specifications,  and PMC may construct  the  school  whenever  and wherever  it  

required. He further sought that on his doing so, the final completion certificate  

be issued so that the flat purchasers can occupy their flats in the building on F.P.  

No.110 which was almost ready.   

40. The Government file contains one more note made by the Under  

Secretary Shri Rajan Kop and signed by Shri Deshpande on 22.7.1998.  It is  

clearly  recorded  below the  note that  it  was  marked for  the  Additional  Chief  

Secretary  to  the  Chief  Minister,  and  also  for  the  Chief  Minister.   The  note  

mentions that there has been substantial criticism in local newspaper about this  

matter.  It is stated that the issue was raised in the general body of PMC, and it  

was represented that an amenity in the area is being destroyed by deleting the  

reservation for a primary school.  The Commissioner had defended the decision  

by contending that although 3450 sq. meter area of reservation of F.P. No.110  

was being deleted, reservation on 8219 sq. meters on adjoining two plots was  

being  maintained.   It  was  also  pointed  out  by  the  Commissioner  that  an  

additional amenity was being created in another area.  The note further records  

31

that  in  the  meanwhile  the  proposal  to  shift  the  reservation  on  the  plot  at  

Lohegaon had been filed (i.e. disapproved) by the Standing Committee of PMC.  

Last para of this note states as follows:-

“Senior Chief Secretary of Hon. Chief Minister has issued   instructions to put up a self explanatory note in this entire matter   for  perusal  of  Hon.  Chief  Minister.   It  is  further  instructed  to   include the matters wherein the Government has taken a decision   in  this  matter  as  also  in  another  matter  prior  thereto,  the   information  provided  and  points  suggested  by  Municipal   Corporation with respect to the matters of deletion of reservation   from Pune City Development Plan, etc., Such note containing the   full background, factual and other aspects of the matter would be   useful for Hon. Chief Minister if certain questions are raised with   respect to the said matter in the current session of Legislative   Assembly.”

41. On  receiving  the  developer’s  letter  dated  15.7.1998,  the  

Commissioner  once  again  wrote  to  Under  Secretary  UDD  on  23.7.1998  

suggesting acceptance of the two proposals of the developer, but seeking orders  

of  the government therefor.   It  is  material  to note at  this  stage that in the  

Government file  there is a clear noting of the Principal  Secretary UDD dated  

24.7.1998 that the application of Rule 13.5 in the matter under question was not  

legal.  As the note states:-

“…….With  due  respect  to  the  persons  then,  doing   interpretation of the said decision of the Government and Rule   No. 13.5, I feel that application of Rule No. 13.5 in the matter   under question is not legal.  Upon plain reading of the said rule it   is clear that this rule can be applied when the reservation is to be   shifted  within  a  distance  of  200  mtrs.   Government  or  the   Commissioner do not appear to be empowered for such shifting   beyond the distance  of  200 mtrs.   It  would  have been much   appropriate that the action for change as contemplated in Sec. 37   of the Maharashtra Regional and Town Planning Act, 1966 would   have been taken……”

32

42. In view of Commissioner’s letter dated 23.7.1998 however, once  

again  a  departmental  note  was  prepared  containing  following  opinion,  still  

seeking to resort to Rule 13.5.

  “…… After considering this issue the following opinion is   being expressed on the proposal of Pune Municipal Corporation.

(1)  Commissioner, Pune Municipal Corporation to take action to   cancel the action earlier taken of shifting reservation at Lohegaon   as  per  Rule  No.  13.5  and  the  action  of  shifting  the  said  part   reservation to Mundhawa be initiated afresh under Rule 13.5.

(2)  Prior to taking action as stated in (1) above, even though it is   stated by the Commissioner that the land at Mundhwa admeasuring   3000 sq. mtrs., suggested by the Promoter is suitable, still however,   it is necessary that the Commissioner , Pune Municipal Corporation   should get himself satisfied about the 12 mtr. wide approach being   available to the said land.  After satisfying itself the legal action for   taking the said Mundhwa land in possession of the Pune Municipal   Corporation be completed.  After completing these actions only, it is   necessary to take action as stipulated in (1) above.

(3)  As per the earlier instructions, the Pune Municipal Corporation   got executed agreement for construction of 500 sq.mtrs.  Since the   action with respect to Lohegaon land had remained incomplete, the   Municipal Corporation could not grant permission to construct school   therein.   This construction could have been got done on Mundhwa   land.  However, from the letter of the Commissioner, Pune Municipal   Corporation it is seen that he has not yet decided as to whether the   school is to be constructed on the said land or not.  On the other hand   he has asserted that since the Promoter is ready to pay such amount   of construction no loss would be caused to Municipal Corporation by   getting  deposited  such  amount.   Considering  this  issue,  principally   there appears to be no objection on the part of the Commissioner in   accepting the proposal of promoter as recommended by him with a   view to get available the necessary amenity for the school as per their   requirements.  However, it would be binding upon the Commissioner   to spend the said amount for the construction at such place which   may  be  found  necessary  and  as  may  be  recommended  by  the   Education Committee.

(4)  Since the actions to be taken as stipulated in point No. (3) above,   are between the Pune Municipal Corporation Education Committee and   Commissioner,  Pune  Municipal  Corporation,  there  is  no  reason  to   suspend the action of granting completion certification to the Promoter   therefore.  Therefore, the Government shall have no objection if the   completion  certificate  is  granted  by  Municipal  Corporation  to  the   

33

Promoter after completing the actions as stipulated in para No. 1 and   2 subject to the rules and provisions in that behalf.

If  the  aforesaid  issues  are  approved,  the  proposal  of  the   Commissioner  in  the  present  circumstances  being  FOR  superior   purpose  than  these  contained  in  the  earlier  directives  of  the   Government  there  should  be  no  reason  to  object  the  proposal   submitted by the Commissioner and the same ought to be principally   approval  subject  however,  to  the  conditions  mentioned  in  the   aforesaid discussion.  In accordance hereof the draft or letter to be   sent to Pune Municipal Corporation is put up at Page No. _____/PV.

The above proposal will be issued on the same being approved.

Submitted for orders.

Sd/-       27.7.98 (Vidyadhar Deshpande)     Dy. Secretary.    Sd/-27.7.1998”

43. Below  this  note  however,  the  Additional  Chief  Secretary  to  the  

Chief Minister put up a remark as follows and signed below it:-

“In this matter the developer and Hon. Chief Minister being   related, it is requested that the Hon. Minister of State should take   proper decision as per rules”.

Thereafter there is the order of the Minister of State which is as follows:-

‘Proposal of Department approved. Orders be issued’:-

“Sd/-        28.7.98       N.V.V.”

44. The Deputy Secretary thereafter sent a reply dated 29.7.1998 to  

the letters of the Municipal  Commissioner dated 28.5.1998 and 23.7.1998. In  

para 1 thereof he referred to the Commissioner’s letter dated 28.5.1998 seeking  

to shift reservation on F.P. No. 110 under DC Rule 13.5 to Mundhawa instead of  

Lohegaon.  Thereafter he stated in para 2 as follows:-

34

“………Now  the  Developer  has  shown  his  readiness  to   make available land at Mundhawa.  Therefore, in your letter you   have sought approval to recover the proper amount required for   the  construction  of  500  sq.mtrs,  after  taking  action  stated  in   preceding paragraph.  Upon due consideration of your request, I   have  orders  to  inform  you  that  after  recovering  such  proper   amount  from  the  Developer,  the  said  amount  be  utilized  for   construction of primary school at such place as may be required   and  recommended  by  the  Education  Committee  of  Pune   Municipal Corporation.  Because of this order request made by   you in your letter dt. 28.5.98 automatically becomes redundant.

In your letter dt. 23rd July 98 you have sought guidance on   the  issue  of  grant  of  occupancy  certificate  to  the  Developer.   After taking the action as stated in paragraph 1 and 2, there is no   reason for the Government to have objection if  in  furtherance   thereof  the  Pune  Municipal  Corporation  issues  the  occupancy   certificate  subject  to  the other  provisions  of  the Rules  in  that   behalf.”

45. In  view  of  the  directions  dated  3.9.1996  issued  by  the  State  

Government, the PMC issued (i) Commencement Certificate (C.C. for short) in  

the  name of  the  landowner  dated  28.11.1996  for  constructing  a  building  to  

rehabilitate the tenants, (ii) the second C.C. dated 3.5.1997 for constructing the  

other  residential  buildings  consisting  of  ground  plus  ten  floors  (named  as  

Sundew Apartment by the developer), and (iii) the Occupation Certificate (O.C.  

for short) in part dated 20.12.1997 for the tenants’ building.  Thereafter, the  

developer  signed a confirming agreement  with  the landowner  and his  family  

members on 16.1.1998 to once again confirm the terms of the earlier referred  

development agreement entered into between the developer and landowner on  

20.10.1995.  It is at this stage, that two petitions bearing no. 4433/1998 and  

4434/1998 were filed on 12.8.1998 and 14.8.1998 respectively. A Division Bench  

first issued Rule Nisi without any interim order.  In as much as the construction  

35

had started from March 1997 and was substantially completed, only a direction  

was given in Writ Petition No.4434/1998 not to create any third party interest.  

The PMC was already directed not to grant completion certificate in respect of  

the ten storey building.  Subsequently, the petitions were heard finally, and the  

Division  Bench  consisting  of  Hon’ble  Justice  B.N.  Srikrishna  and  Justice  S.S  

Parkar,  rendered  two  concurrent  judgments  on  6th-15th March  1999,  and  a  

common order which have been challenged in the present group of appeals.

Justification of the shifting of reservation under D.C. Rule 13.5:  

Is it in consonance with the statute?

46. As we have noted, the State Government directed the PMC to shift  

the reservation on F.P.  No. 110 under DC Rule 13.5. The question therefore  

comes  up as  to  whether  the  action  by  the  State  is  in  consonance  with  the  

statutory scheme, and that apart whether such an action is permissible under DC  

Rule  13.5?  If  we look  to  the  scheme of  the  Act  it  gives  importance  to  the  

implementation  of  the  sanctioned  plan  as  it  is  and  it  is  only  in  certain  

contingencies that the provision thereunder is permitted to be modified, and that  

too after following the necessary procedure made in that behalf.  

Signification of the Sanctioned Plan and the provisions for the  

modification thereof

47. The Planning process under the MRTP Act is  quite  an elaborate  

process.   A number of  town planners,  architects  and officers  of the Planning  

Authority, and wherever necessary those of the State Government participate in  

the process. They take into consideration the requirements of the citizens and  

36

the need for the public amenities. The planners consider the difficulties presently  

faced by the citizens, make rough estimate of the likely growth of the city in near  

future and provide for their solutions.  The plan is expected to be implemented  

during the course of the next twenty years.  After the draft Development Plan is  

prepared, a notice is published in the official  gazette stating that the plan is  

prepared.   Under  Section  26(1)  of  the  Act  the  name and place  where  copy  

thereof will be available for inspection to the public at large is notified.  Copies  

and extracts thereof are also made available for sale.  Thereafter suggestions  

and  objections  are  invited.   The  provisions  of  regional  plan  are  given  due  

weightage  under  Section  27  of  the  Act  and  then  the  plan  is  finalised  after  

following  the  detailed  process  under  Section  28  of  the  Act.   This  being  the  

position,  Chapter-III  of  the  MRTP  Act  on  Development  Plans  requires  the  

sanctioned plan to be implemented as it  is.  There are only two methods by  

which modifications of the final Development Plan can be brought about.  One is  

where  the  proposal  is  such  that  it  will  not  change  the  character  of  the  

Development  Plan,  which  is  known as  minor  modification  and  for  which  the  

procedure is laid down under Section 37 of the Act.  The other is where the  

modification is of a substantial nature which is defined under Section 22A of the  

Act.  In that case the procedure as laid down under Section 29 is required to be  

followed.   There  is  also  one  more  analogous  provision  though  it  is  slightly  

different i.e. the one provided under Section 50 of the Act, for deletion of the  

reservation where the appropriate authority (other than the planning authority)  

37

no longer requires the designated land for the particular  public  purpose, and  

seeks deletion of the reservation thereon.

48. The Government’s action to shift the reservation on F.P. No. 110 is  

under  DC  Rule  13.5  and  not  under  Section  37  of  the  MRTP  Act.   We may  

therefore refer to DC Rule 13.5 and Section 37.

DC Rule 13.5 reads as follows:-

“13.5 If the land proposed to be laid out is affected by any   reservation/s or public purpose/s authority may agree to adjust the   location  of  such  reservation/s  to  suit  the  development  without   altering the area of such reservation.  Provided however, that no   such shifting of the reservation/s shall be permitted.

(a) beyond 200 m. of the location in the Development   Plan.

(b) beyond  the  holding  of  the  owner  in  which  such   reservation is located, and

(c) unless the alternative location is at least similar to   the  location  of  the  Development  Plan  as  regards   access, levels etc.

All such alterations in the reservations/alignment of roads   shall be reported by the Planning Authority to Govt. at the time of   sanctioning the layout.”

49. As can be seen from the D.C. Rule 13.5, shifting of the reservation  

thereunder has to be without altering the size of the area under reservation.  

Besides it is permissible only on three conditions namely, that (1) it cannot be  

beyond 200 metres of the original location in the Development Plan, (2) it has to  

be within the holding of the owner in which the reservation is located, and (3)  

the alternative location ought to have a similar  access and land level  as the  

original location.  Obviously the shifting of the reservation from F.P. No. 110 to a  

far off place could not be justified under D.C. rule 13.5.

38

Minor Modifications

50. Section 37 of the MRTP Act, reads as follows:-

“37. Modification of final Development Plan

(1) Where a modification of any part of or any proposal   made in, a final Development plan is of such a nature that it will   not change the character of such Development plan, the Planning   Authority  may,  or  when so  directed  by  the  State Government   [shall, within sixty days from the date of such direction, publish a   notice] in the Official Gazette [and in such other manner as may   be determined by it] inviting objections and suggestions from any   person with respect to the proposed modification not later than   One month from the date of such notice; and shall  also serve   notice on all persons affected by the proposed modification and   after giving a hearing to any such persons, submit the proposed   modification (with amendments, if any), to the State Government   for sanction.

[(1A)  If  the  Planning  Authority  fails  to  issue  the  notice  as   directed by the State Government, the State Government shall   issue the notice, and thereupon the provisions of sub-section (1)   shall apply as they apply in relation to a notice to be published by   a Planning Authority.]

[(1AA) (a) Notwithstanding anything Contained in sub-sections   (1), (1A) and (2), where the State Government is satisfied that in   the  public  interest  it  is  necessary  to  carry  out  urgently  a   modification  of  any  part  of,  or  any  proposal  made  in,  a  final   Development Plan of such a nature that it will  not change the   character of such Development Plan, the State Government may,   on its own, publish a notice in the Official Gazette, and in such   other manner as may be determined by it, inviting objections and   suggestions  from  any  person  with  respect  to  the  proposed   modification  not  later  than one month  from the  date  of  such   notice and shall also serve notice on all persons affected by the   proposed modification and the Planning Authority.

(b) The State Government shall, after the specified period,   forward a copy of all such objections and suggestions to   the Planning Authority for its say to the Government within   a period of one month from the receipt of the copies of   such objections and suggestions from the Government.

(c) The State Government shall, after giving hearing to the   affected  persons  and  the  Planning  Authority  and  after   

39

making  such  inquiry  as  it  may  consider  necessary  and   consulting the Director of Town Planning, by notification in   the  Official  Gazette,  publish  the  approved  modifications   with or without changes, and subject to such conditions as   it  may  deem fit,  or  may  decide  not  to  carry  out  such   modification. On the publication of the modification in the   Official  Gazette,  the  final  Development  Plan  shall  be   deemed to have been modified accordingly.]

[(1-B) Notwithstanding anything contained in sub-section (1), if   the Slum Rehabilitation Authority appointed under section 3A of   the  Maharashtra  Slum  Areas  (Improvement,  Clearance  and   Redevelopment) Act, 1971(Mah. XXV-III of 1971) is satisfied that   a modification of any part of, or any proposal made in, a final   Development Plan is required to be made for implementation of   the  Slum  Rehabilitation  Scheme  declared  under  the  said  Act,   then, it may publish a notice in the Official Gazette, and in such   other manner as may be determined by it, inviting objections and   suggestions  from  any  person  with  respect  to  the  proposed   modification  not  later  than one month  from the  date  of  such   notice; and shall also serve notice on all persons affected by the   proposed modification,  and after  giving a hearing to any such   persons, submit the proposed modification (with amendments, if   any) to the State Government for sanction.]

(2) The State Government may, [make such inquiry as it  may   consider  necessary]  and after  consulting  the Director  of  Town   Planning  by  notification  in  the  Official  Gazette,  sanction  the   modification * * * with or without such changes, and subject to   such conditions as it may deem fit or refuse to accord sanction. If   a modification is sanctioned, the final Development Plans shall be   deemed to have been modified accordingly.”

51. As seen from this Section, the minor modification under Section 37  

(1) has to be such that it will not change the character of the Development Plan.  

The  section  indicates  that  for  setting  the  procedure  under  Section  37  into  

motion, the Planning Authority has to firstly form an opinion that the proposed  

modification will  not change the character of the Development Plan. Such an  

opinion has to be formed by the Planning Authority meaning the general body of  

the Municipal Corporation, since this function is not permitted to be delegated to  

40

anybody else under Section 152 of the Act.  Thereafter the Planning Authority  

has  to  publish  a  notice  in  the  official  gazette  inviting  the  objections  and  

suggestions from the public with respect to the proposed modification. It is also  

required  to  give  a  notice  to  all  the  persons  affected  by  the  proposed  

modification. Sub-section (1A) lays down that if the Planning Authority does not  

give the notice, the State Government is required to issue the notice as stated  

above.  The notice to the affected persons in our case will mean notice at least  

to the two institutions which had applied for developing a Primary school on this  

very  plot  of  land.   Thereafter  they  have  to  be  heard,  and  the  proposed  

modification  with  amendments  if  any,  is  to  be  submitted  to  the  State  

Government for sanction.  Subsequently, after making appropriate enquiries and  

after consulting the Director of Town Planning the State Government may under  

sub-section (2) sanction the modification with or without appropriate changes, or  

subject to such conditions as it may deem fit or refuse to grant the sanction.   

52. Sub-section (1AA) of Section 37 lays down the power of the State  

Government where it feels the urgency for carrying out any such modification.  

In that case the State Government may publish the notice in the Official Gazette,  

and follow the similar procedure, but subsequently it has to place the proposal  

before the general body of the Planning Authority for its say, and thereafter only  

it may sanction the modification after consulting the Director of Town Planning in  

a similar manner.   This shows that in the event of a minor modification the  

general body of the Planning Authority has a say in the matter.  The Government  

has  to  invite  the  objections  and  suggestions  from  the  public  at  large  by  

41

publishing the notification in the Official Gazette, plus it has to issue a specific  

notice to the persons affected by the proposed modification, and last but not the  

least  it  has  to  consult  the  Director  of  Town  Planning  before  arriving  at  its  

decision.  In the present case nothing of the kind has been done.   

53. In  the  instant  case  the  officers  of  the  Urban  Development  

Department as well as of the PMC took the stand (until it was possible), that the  

procedure under Section 37 will have to be followed.  This was because what  

was contemplated was a modification of a proposal made in the Development  

Plan. A reservation for an amenity was sought to be shifted (which will in fact  

mean it was sought to be deleted) from the place where it was provided.  If that  

was the official view of UDD and PMC, what was required was a compliance of  

the procedure under Section 37(1) and (2).  Ultimately, since the direction was  

given by the State Government, (and if the State Government thought that there  

was an urgency), it was necessary for it to act under Section 37 (1AA), and to  

publish a notice in the Official Gazette to invite objections and suggestions from  

the  public  at  large,  and  also  from  the  persons  affected  by  the  proposed  

modification.   Thereafter  the  State  Government  was  required  to  send  the  

proposal  to PMC for its say and then it  had to consult the Director  of  Town  

Planning.

Modifications of a substantial nature

54. Where  the  modification  is  of  a  substantial  nature,  a  different  

procedure  is  prescribed under  Section 22A of  the Act.  This  Section  reads  as  

follows:-

42

“ 22A. Modifications of a substantial nature

In section 29 or 31, the expression "of a substantial nature"   used in relation to the modifications  made by the Planning   Authority or the officer appointed by the State Government   under sub-section (4) of section 21 (hereinafter referred to as   "the said Officer") or the State Government, as the case may   be, in the Draft Development Plan means,--

(a) reduction of more than fifty per cent., or increase by ten per   cent. in area of reservations provided for in clauses (b) to (i)   of  section  22,  in  each  planning  unit  or  sector  of  a  draft   Development  Plan,  in  sites  admeasuring  more  than  0.4   hectare  in  the  Municipal  Corporation  area  and  'A'  Class   Municipal  area  and  1.00  hectare  in  'B'  Class  and  'C'  Class   Municipal areas;

(b) all changes which result in the aggregate to a reduction of   any public  amenity by more than ten per cent of  the area   provided in the planning unit or sector in a draft Development   Plan prepared and published under section 26 or published   with modification under section 29 or 31, as the case may be;

(c) reduction in an area of an actually existing site reserved for   a public amenity except for marginal area upto two hundred   square meteres required for essential public amenity or utility   services;

(d) change in the proposal of allocating the use of certain lands   from one zone to any other zone provided by clause (a) of   section 22 which results in increasing the area in that other   zone by ten per cent. in the same planning unit or sector in a   draft Development Plan prepared and published under section   26 or published with modification under section 29 or 31, as   the case may be;

(e)  any  new reservation  made  in  a  draft  Development  Plan   which is not earlier published under section 26, 29 or 31, as   the case may be;

(f) alternation in the Floor Space Index beyond ten per cent. of   the Floor Space Index prescribed in the Development Control   Regulations  prepared  and  published  under  section  26  or   published with  modification  under  section 29 or 31, as the   case may be.].”

Additional  requirement  of  notice  in  local  newspapers  before  

effecting modifications of substantial nature:-

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55. The  modification  under  Section  22A  requires  following  of  the  

procedure under Section 29 of the MRTP Act.  It lays down that apart from a  

notice  in  the official  gazette,  a  notice  will  have to be  published  in  the local  

newspapers for the information at the public at large, so that they may make  

their suggestions or file objections thereto if  they so deem it fit.   Section 29  

reads as follows:-

”29.  Modification  made  after  preparing  and  publishing notice of draft Development plan.

Where the modifications made by a Planning Authority or   the  said  Officer  in  the  draft  Development  plan  are  [of  a   substantial nature], the Planning Authority or as the case may be,   the said Officer shall publish a notice in the Official Gazette and   also in the local newspapers inviting objections and suggestions   from any person with respect to the proposed modifications not   later  than  sixty  days  from  the  date  of  such  notice;  and   thereupon, the provisions of section 28 shall apply in relation to   such suggestions and objections as they apply to suggestions and   objections dealt with under that section.”

56. As seen from this Section 22A, it treats modifications of six types as  

substantial modifications.  They are as follows:-

(a) if a plot is admeasuring more than 0.4 hectare (i.e. 4000 sq. metres) in  

the Municipal Corporation area  or an A class Municipal area a reduction of more  

than 50 per cent would be considered as a substantial modification.  In B & C  

class Municipal Areas such a plot has to be of one hectare.

(b) secondly, under sub-section (b) all changes which result in the aggregate  

to a reduction of any public  amenity by more than ten per cent of the area  

provided in the planning unit are considered a substantial change.

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(c) where  there  is  an actually  existing  site  reserved for  a  public  amenity,  

except for marginal area upto two hundred square metres required for essential  

public  amenities  or  utility  services  their  reduction  will  be  a  substantial  

modification.

(d) shifting of the allocation of use of land from zone to zone which results in  

increasing the area in the other zone by ten per cent in the same planning unit  

will be a substantial modification.

(e) any new reservation made in a draft Development Plan which is not earlier  

published will be a substantial modification, and  

(f) alternation  in  the  Floor  Space  Index  beyond  ten  per  cent  will  be  a  

substantial modification.

Importance given to the spaces reserved for public amenities

57. As  we  have  noted,  all  such  substantial  modifications  can  be  

effected only after following the additional requirement laid down in Section 29  

viz. a notice in the local newspapers inviting objections and suggestions within  

sixty days from the public at large with respect to the proposed modification.  

Sub-section (a) deals with reduction of more than fifty percent in area provided  

in  clauses  (b)  to  (i)  of  Section  22  which  sub-sections  are  concerned  with  

proposals for designation of land for public purposes such as schools, colleges,  

markets, and open spaces, playgrounds, transport and communications, water  

supply, drainage and sewerage and other public amenities.  It can be seen that  

sub-sections (b) and (c) of section 22A give importance to retention of places  

reserved for public  amenities.   Sub-section (b) deals with a reduction of any  

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public amenity by more than ten per cent of the area reserved in the planning  

unit.   Sub-section  (c)  deals  with  any  reduction  in  an  actually  existing  site  

reserved for a public  amenity (other than marginal  area upto 200 sq. metres  

required for essential public amenities or utility services for e.g. road widening).  

Both are treated as substantial modifications.  Section 2 (2) of the MRTP Act  

defines what is an “amenity”.  It is relevant to note that this definition of amenity  

includes primary and secondary schools and colleges and polytechnics.  It reads  

as follows:-

“2  [(2).  “amenity”  means  roads,  streets,  open  spaces,   parks recreational grounds, play grounds, sports complex, parade   grounds, gardens, markets, parking lots, primary and secondary   schools and colleges and polytechnics, clinics,  dispensaries and   hospitals,  water  supply,  electricity  supply,  street  lighting,   sewerage,  drainage,  public  works  and  includes  other  utilities,   services and conveniences].”

58. In the present case we have a situation where the reservation for a  

Primary school on a plot of an area of 3450 sq. metres is deleted. Would it not  

amount to a substantial modification under sub-section (b) of Section 22A since  

it results into deletion of a public amenity in the entire planning unit?  Would it  

not mean that in view thereof it was necessary to follow the procedure required  

under Section 29 of the Act which provides for a public  notice in the Official  

Gazettee and also in the local newspapers inviting objections and suggestions?  

Would it not mean that thereafter it was necessary to follow the procedure to  

deal  with  the suggestions  and objections  laid  down while  finalizing  the draft  

Development Plan under Section 28 of the Act?  Whether the shifting of this  

reservation  is  covered  under  Section  37  or  Section  22A  is  a  moot  point  to  

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consider.  One thing is however very clear, that it could not be justified under  

D.C. Rule 13.5.  If the statute provides for doing a particular act in a specified  

manner,  it  has  got  to  be  done in  that  manner  alone,  and not  in  any other  

manner.

Alleged  Conflict  between  D.P.  Plan  and  the  erstwhile  T.P.  

Scheme canvassed for the first time in the High Court –      

Can a provision in the erstwhile T.P. Scheme be relied upon in  

the face of a contrary reservation in the subsequent D.P. Plan?

59.     In as much as the action of the State Government could not be  

defended under D.C. Rule 13.5, the appellants came up with the submission for  

the first time in the High Court and then in this Court that under the erstwhile  

Town Planning Scheme, this  F.P.  No.  110 could be developed for  residential  

purposes, and that purpose subsisted in spite of the subsequent reservation for a  

public purpose on that plot of land under the D.P. Plan.   

60. It was pointed out that a Town Planning Scheme was framed under  

the then Bombay Town Planning Act of 1915 for Pune City to become effective  

from 1.3.1931.  Regulation 14 of the Principal scheme framed under that Act  

provided for the areas included in the scheme which were intended mainly for  

residential purposes wherein this plot was included as original plot No. 230/C.  It  

was subsequently allotted F.P. No. 110.  There was no reservation on this plot  

for any public purpose.  The 1915 Act was repealed and replaced by the Bombay  

Town  Planning  Act  1957  w.e.f.  1.4.1957 whereunder  the  concept  of  a  

Development Plan was introduced.  However, by virtue of Section 90 of the 1954  

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Act the previous schemes were saved. The erstwhile Town Planning scheme as  

varied,  was  sanctioned  by  the  State  Government  w.e.f.  15.8.1979, and  

thereunder the permissible user of F.P. No. 110 continued to be residential.  In  

the  meanwhile,  in  exercise  of  its  power  under  the  1954  Act,  the  State  

Government  sanctioned  the  Development  Plan  of  Pune City  w.e.f.  15.8.1966  

whereunder F.P. No. 110-112 were reserved for a garden.  The 1954 Act was  

repealed and replaced by the MRTP Act 1966 w.e.f. 11.1.1967.   By virtue of  

Section 165 of the MRTP Act, however, the erstwhile Principal T.P. scheme (as  

varied), as well as the D.P. Plan were both saved.  Subsequently, when the D.P.   

Plan of Pune City was revised in 1982 and finalized in 1987 under the provisions  

of the MRTP Act, the reservation on the plot was initially proposed to be changed  

for a play-ground, but ultimately shifted for a primary school in the final 1987 DP  

Plan.   

61. It is contended on behalf of the landowner and the developer that  

the permission for the user of the concerned plot of land for residential purposes  

under the T.P. Scheme effective from 15.8.1979 continued to survive by virtue of  

the saving clause under Section 165(2) of the MRTP Act, and, therefore,  the  

order passed by the Government on 3.9.1996 as well  as the commencement  

certificates were valid even on that count.  It is submitted that until the Town  

Planning  scheme is  varied  under  Section  39 read  with  92 of  MRTP Act,  the  

proposals in the Final Development Plan of 1987 cannot have any effect on the  

land covered by the erstwhile Town Planning scheme. The Development Plan  

and Town Planning scheme will both have their independent operation until the  

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Town Planning scheme is varied to bring it in accord with the Development Plan.  

As noted earlier that right from 8.5.1979, when the landowner issued purchase  

notice, and led the State Government and PMC to acquire the plot of land, this  

plea was never raised (and the High Court would have been within its rights not  

to entertain this plea on the ground of acquiescing into the change of user under  

the D.P. Plan).  The plea having been considered and rejected in the impugned  

judgment,  is  canvassed  once  again  in  this  Court.   To  consider  this  plea,  it  

becomes necessary to examine the relevant provisions of the Act.

Relevant provisions of the Act in the context of the D.P. Plan as  

against the erstwhile T.P. Scheme

62. The preamble of the MRTP Act shows that this is an Act to make  

provisions for:

(1) planning the development and use of land in regions established for that  

purpose and for constitution of regional planning boards therefor,

(2) to make better provisions for the preparation of development plans with  a  

view to ensuring that T.P. Schemes are made in the proper manner  and  

their execution is made effective,

(3) to  provide  for  the  creation  of  new  towns  by  means  of  development  

authorities,

(4) to make provisions for the compulsory acquisition of land required for public  

purposes in respect of the plans, and

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(5) for purposes connected with the matters aforesaid.

63. (i) Chapter I of the Act contains the Preliminary provisions.  Chapter II  

of  the  Act  is  concerning  the  Regional  Plans.   Chapter  III  is  about  the  

Development Plan, and Chapter IV about Control of Development and Use of  

Land included in Development Plans.  Chapter V is about the T.P. Schemes.   

(ii) Section 3 of the Act permits the State Government to establish any  

area in the State to be a Region.  A Regional Plan is supposed to be prepared for  

various  subjects  which  are  mentioned  in  Section  14  of  the  Act.   The  

‘Development Plan’ is defined under Section 2 (9) of the Act as a plan for the  

development or re-development of the area within the jurisdiction of a planning  

authority.   Section  2  (19)  defines  the  Planning  Authority  to  mean  a  local  

authority,  and it  includes  some other  specified  authorities  also.   There is  no  

dispute that the development plan has to be prepared ‘in accordance with the  

provisions of a Regional plan’ which is what is specifically stated in Section 21 (1)  

of the Act.   

(iii) It  is,  however,  disputed by the developer  that the T.P.  scheme  

which is  normally  supposed to be a detailed scheme for  a smaller  part  of  a  

Municipal Area has necessarily to be in consonance with the development plan.  

As against this submission we have the mandate of Section 39 of the Act, which  

reads as follows:-

“39.  Variation  of  town  planning  scheme  by  Development Plan.  

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Where a final Development plan contains proposals which   are in variation, or modification of those made in a town planning   scheme which  has  been  sanctioned  by  the  State  Government   before  the  commencement  of  this  Act,  the  Planning  Authority   shall vary such scheme suitably under section 92 to the extent   necessary by the proposals made in the final Development plan.”

This Section states that the T.P. scheme shall be suitably varied to  

the extent necessary wherever the final  development plan contains proposals  

which are in  variation  or  modification of  the proposals  contained in  the T.P.  

Scheme.  In the instant case, we are concerned with the final development plan  

of 1987 which contains the reservation for a Primary School on F.P. No.110 as  

against the plot being placed in a residential zone in the final T.P. scheme of  

1979.  It is submitted by the appellant that the planning authority may take  

steps to vary the T.P. scheme suitably to bring it in consonance with the D.P  

plan, but until that is done, the provisions in the T.P. scheme will survive.  The  

High Court has rejected this submission by holding that the D.P. plan overrides  

the T.P. Scheme.  

64. As noted above, Section 39 lays down that the T.P. Scheme is to be  

varied suitably in accordance with the D.P. Plan under Section 92 of the Act.  

Section 92 appears in Chapter V which is on Town Planning schemes.  The first  

section in this chapter V is Section 59.  Section 59 reads as follows:-

“59.  Preparation  and  contents  of  Town  Planning   Scheme

(1) Subject to the provisions of this Act or any other law for   the time being in force-

(a) a Planning Authority may for the purpose of implementing   the proposals in the final Development Plan, prepare one or more   town planning schemes for the area within its jurisdiction, or any   part thereof;

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(b) a town planning scheme may make provision for any of   the following matters, that is to say-

(i) any of the matters specified in section 22; (ii)  the laying out or re-laying out of  land,  either   vacant  or  already  built  upon,  including  areas  of   comprehensive development; (iii) the suspension, as far as may be necessary for   the proper carrying out of the scheme, of any rule,   by-law,  regulation,  notification  or  order  made  or   issued under any law for  the time being in force   which the Legislature of the State is competent to   make; (iv)  such  other  matter  not  inconsistent  with  the   object of this Act, as may be directed by the State   Government.

(2) In making provisions in a draft town planning scheme for   any of the matter referred to in clause (b) of sub-section (1), it shall   be lawful for a Planning Authority with the approval of the Director   of  Town Planning and subject  to  the  provisions  of  section  68 to   provide for suitable amendment of the Development plan.”

As can be seen, Section 59 states two things: firstly the opening part of sub-

section 1 of Section 59 states that the T.P. scheme is to be prepared “subject to  

the  provisions  of  this  Act”.   Thereafter,  Sub-section  1(a)  of  this  section  

specifically  states that the planning authority is  to prepare one or more T.P.  

schemes for the area within its jurisdiction “for the purpose of implementing the  

proposals in the final Development Plan”.  Thus, Section 39 read with Section 59  

do indicate the approach of legislature, namely, superiority of the D.P. plan over  

the T.P. scheme.

65. The learned senior counsel for the developer, Shri Naphade relied  

on the provisions contained in Section 59 (1) (b) (i), and 59 (2) of the Act in  

support of his arguments.  Section 59 (1) (b) (i) provides that a town planning  

scheme may make provision amongst others for any of the matters specified in  

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Section 22 of the Act.  Section 22 lays down as to what ought to be the contents  

of  a Development Plan.  Section 59 (2) states that  in making the draft  T.P.  

scheme for any of the matters referred to in sub-section 1 (b), it shall be lawful  

for a planning authority to provide for suitable amendments of the Development  

Plan.   It  is,  therefore,  submitted  that  there  is  no  primacy  between  the  

Development Plan and the T.P. scheme.  It is contended that if the purpose of  

the  T.P.  Scheme is  only  to  implement  the  Development  Plan,  it  will  militate  

against the plain reading of Section 51 (2) and 59 (1) (b) and that, in such a  

case, Section 59 (1) (b) will become otiose.  Shri Naphade, therefore, submitted  

that the D.P. Plan and the T.P. Scheme both are of equal strength.   

66. While  examining this  submission,  we must  note that  Section  39  

requires the T.P. scheme to be varied to the extent necessary in accordance with  

the final Development Plan.  The provision in Section 59 (1) (b) (i) is infact made  

to  see  to  it  that  there  is  no  conflict  between  the  T.P.  scheme  and  the  

Development Plan.  Otherwise, the question will arise as to what meaning will be  

given to Section 59 (1) (a) which specifically states that the T.P. scheme is to be  

prepared for the purpose of implementing the proposals in the final Development  

Plan. Merely because Section 59 (1) (b) provides that the T.P. scheme may make  

provision for any of the matters specified in Section 22, the T.P. scheme cannot  

be placed on the same pedestal as a Development Plan.  Section 59 (2) is only  

an  enabling  provision.  It  may  happen  that  in  a  given  situation  a  suitable  

amendment  of  the  Development  Plan  may  as  well  become  necessary  while  

seeing to it that the T.P. scheme is in consonance with the Development Plan.  

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Section 59 (2) will only mean that the legislature has given an elbow room to the  

planning authority to amend the Development Plan if that is so necessary, so  

that there is no conflict between the T.P. Scheme and the D.P. Plan.  In fact  

what  is  indicated  by  stating  that  “it  shall  be  lawful  to  carry  out,  such  an  

amendment” is that normally such a reverse action is not expected, but in a  

given case if it becomes so necessary, it will not be unlawful.  Use of this phrase  

in fact shows the superiority of the D.P. Plan over the T.P. scheme.  Besides, the  

phrase  put  into  service  in  this  sub-section  is  only  ‘to  provide  for  a  suitable  

amendment’.  This enabling provision for an appropriate amendment in the D.P.  

plan cannot therefore, be raised to the level of the provision contained in Section  

39 which mandates that the planning authority shall vary the T.P. scheme if the  

final  D.P.  Plan  is  in  variation  with  the  T.P.  Scheme  sanctioned  before  the  

commencement  of  the  MRTP  Act.   It  also  indicates  that  subsequent  to  the  

commencement of the Act, a T.P. Scheme will have to be inconsonance with the  

D.P. Plan.  Similarly, Section 59 (1) (b) (i) cannot take away the force of the  

provision contained in Section 59 (1) (a) of the Act.   As noted above, Section 39  

specifically directs that the planning authority shall vary the T.P. scheme to the  

extent  necessary  by  the  proposal  made  in  the  final  Development  Plan,  and  

Section  59 (1)  (a)  gives  the  purpose  of  the  T.P.  scheme,  viz.  that  it  is  for  

implementing  the proposals  contained in the final  Development  Plan.   Under  

Section 31 (6) of the act, a Development plan which has came into operation is  

binding on the planning authority.  The Planning Authority cannot act contrary to  

D.P. plan and grant Development permission to defeat the provision of the D.P.  

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plan.   Besides,  it  cannot  be  ignored  that  a  duty  is  cast  on  every  planning  

authority  specifically  under  Section  42  of  the  Act  to  take  steps  as  may  be  

necessary to carry out the provisions of the plan referred in Chapter III of the  

Act,  namely  the  Development  Plan.   Section  46  of  the  Act  also  lays  down  

specifically  that  the  planning  authority  in  considering  an  application  for  

permission for development shall  have “due regard”  to the provisions of  any  

draft or any final plan or proposal submitted or sanctioned under the Act.   It  

indicates that the moment a Draft Plan is proposed, a permission for a contrary  

development can no more be granted, since it will lead to a situation of conflict.  

Section 52 of the Act in fact provides for penalty for unauthorised development  

or for use otherwise then in conformity with the development plan.  Thus, when  

it comes to the development in the area of a local authority, a conjoint reading  

of the relevant sections makes the primacy of the Development Plan sufficiently  

clear.

67. Much emphasis was laid on Section 69 (6) which reads as follows:-

“(6) The provisions of Chapter IV shall, mutatis mutandis,   apply in relation to the development and use of land included in a   town planning scheme in so far as they are not inconsistent with   the provisions of the Chapter.”

It was, therefore, submitted that thus the provisions of Chapter IV  

which are about the Control of Development and use of land included in the  

Development Plan, are mutatis mutandis applicable to the development and the  

use of land included in the T.P. scheme, and therefore the D.P. plan and T.P.  

scheme are on par.

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68. Now, it is material to note that sub-sections (1) to (5) of Section 69  

operate when the draft T.P. scheme is under preparation.  Sub-section (6) will  

have to be read on that background because this sub-section itself states that  

provisions of Chapter IV will  apply in relation to the development of the land  

included in a T.P. scheme “in so far as it is not inconsistent with the provision of  

this Chapter”, i.e. Chapter V on Town Planning Schemes wherein Section 69 is  

placed.  Chapter IV is on control of Development and use of land included in  

Development Plans.  And as noted above, Section 59 (1) (a) which is the first  

section of Chapter V clearly contains the direction that the T.P. scheme is to be  

prepared for the purpose of implementing the proposals in the final Development  

Plan.  Therefore, merely because by incorporating the provisions of Chapter IV  

those provisions are made applicable to T.P. schemes, the mandate of Section 59  

(1) (a) cannot be lost sight of.

69. It is then submitted by the appellant that the Development Plan  

and the T.P. scheme operate independent of each other, and, until the State  

Government exercises its power of eminent domain under the Development Plan,  

and acquire the land, the landowner can develop his property as per the user  

permitted under the T.P. scheme.  In view of the scheme of the relevant sections  

and particularly Section 46 which we have noted above, this submission cannot  

be accepted.  It will mean permitting a development contrary to the provisions of  

the Development Plan, knowing fully well that the user under the T.P. scheme is  

at  variance  with  the  Development  Plan.   Any  such  interpretation  will  make  

provisions of Section 39, 42, 46 and 52 meaningless.   

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70. There is one more aspect of the matter.  Section 43 of the Act lays  

down that  after  the date on which the declaration  of  intention  to prepare  a  

Development Plan is published, no person shall carry out any development on  

land without the permission of the Planning Authority.  The principal part of this  

section reads as follows:-

“43. Restrictions on development of land

After  the  date  on  which  the  declaration  of  intention  to   prepare  a  Development  plan  for  any  area  is  published  in  the   Official  Gazette  [or  after  the  date  on  which  a  notification   specifying any undeveloped area as a notified area, or any area   designated  as  a  site  for  a  new  town,  is  published  in  Official   Gazette] no person shall institute or change the use of any land   or carry out any development of land without the permission in   writing of the Planning Authority.”

71. This  section  will  have  to  be  read  along  with  the  requirement  

provided in Section 39.  Section 39 provides for a T.P. Scheme sanctioned and  

subsisting prior to the Development Plan.  The section mandates that such a  

prior scheme shall be varied to the extent necessary by the proposals made in  

the final Development Plan.  Section 43 provides that once the declaration of  

intention to prepare a Development Plan is gazetted, no development contrary  

thereto  can  be  permitted.   As  provided  under  Section  59  (1)  (a),  the  town  

planning  scheme  is  to  be  prepared  for  the  purpose  of  implementing  the  

proposals in the final Development Plan.  Therefore, even if such a variation as  

directed under Section 39 does not take place, the land cannot be put to use in  

any way in contradiction with the provision in the D.P. Plan.  In the instant case,  

we have a provision of the T.P. Scheme effective from 15.8.1979 as against the  

D.P. Plan containing a contrary provision which was notified on 18.9.1982.  Shri  

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Dholakia, learned senior counsel appearing for the State Government, therefore,  

rightly submitted that in view of Section 165 of the MRTP Act, if the construction  

was completed, partly started or plans were submitted, or any such appropriate  

steps were taken prior to 18.9.1982, the same could have been permitted.  Once  

the  State  Government  published  the  draft  Development  Plan  on  18.9.1982,  

providing  for  the  reservation  for  a  primary  school,  any construction  contrary  

thereto  could  not  be  permitted.   This  can  only  be  the  interpretation  of  the  

provisions contained in Section 39 read with Section 43 and Section 165 of the  

MRTP Act.  For convenience, we may refer to Section 165 (1) and (2), which  

read as follows:-

“165. Repeal and saving.

(1) The Bombay Town Planning Act, 1954 and sections   219 to 226A and clause (xxxvi) of sub-section (2) of   section 274 of the Maharashtra Zilla Parishads and   Panchayat Samitis Act, 1961, are hereby repealed.

(2) Notwithstanding  the  repeal  of  the  provisions   aforesaid,  anything  done  or  any  action  taken   (including  any  declaration  of  intention  to  make a   development  plan  or  town  planning  scheme,  any   draft development plan or scheme published by a   local  authority,  any application made to the State   Government  for  the  sanction  of  the  draft   development plan or scheme, any sanction given by   the  State  Government  to  the  draft  development   plan or scheme or any part thereof, any restriction   imposed  on  any  person  against  carrying  out  any   development work in any building or in or over any   land or upon an owner of land or building against   the erection or re-erection of any building or works,   any commencement certificate granted,  any order   or  suspension  of  rule,  bye-law,  regulation,   notification  or  order  made,  any  purchase  notice   

58

served on a local authority and the interest of the   owner  compulsorily  acquired  or  deemed  to  be   acquired by it in pursuance of such purchase notice,   any revision of development plan, any appointment   made  of  Town  Planning  Officer,  any  proceeding   pending before, and decisions of, a Town Planning   Officer, any decisions of Board of Appeal, any final   scheme  forwarded  to,  or  sanctioned,  varied  or   withdrawn by the State Government, any delivery of   possession enforced, any eviction summarily made,   any notice  served,  any action  taken to enforce a   scheme,  any costs  of  scheme calculated  and any   payments  made to  local  authorities  by owners  of   plots included in a scheme, any recoveries made or   to  be  made  or  compensation  awarded  or  to  be   awarded  in  respect  of  any  plot,  any  rules  or   regulations  made  under  the  repealed  provisions   shall be deemed to have been done or taken under   the  corresponding  provisions  of  this  Act,  and the   provisions  of  this  Act  shall  have effect  in relation   thereto.”

72.  The learned senior counsel Shri Virendra Tulzapurkar appearing for  

the  tenants  went  to  the extent  of  contending that  by provisions  in  the T.P.  

Scheme are superior to those in the D.P. Plan.  In support to his submission he  

relied  upon  the  judgment  of  a  Division  Bench  of  Gujarat  High  Court  in  

Gordhanbhai Vs. The Anand Municipality & Ors. reported in  XVI (1975)  

Gujarat Law Report 558  which was under the Bombay Town Planning Act  

1954 (the 1954 Act for short) as applicable to Gujarat.  The petitioner therein  

was aggrieved by the development permission granted by the Anand Municipality  

to the respondents Nos. 4 to 12 to put up a structure on the plot adjoining to his  

plot.    One of  the objections  raised by the petitioner  was that  the disputed  

construction did not observe the margins prescribed in the regulations framed  

under the Development Plan (comparable to the D.C. regulations in the present  

59

case).  The respondents pointed out that the regulations which were published  

and sanctioned by the State Government as a part of the T.P. scheme specifically  

provided that no margin should be imposed on the particular final plot of the  

respondents Nos. 4 to 12.  In view thereof, the Division Bench in para 6 of its  

judgment  referred  to  Section  18  (2)  (k)  of  the  1954  Act  which  specifically  

provided that the Town Planning scheme may provide for the suspension, so far  

as may be necessary for the proper carrying out of the scheme of any rule, by-

law, regulation, notification or order made or issued under any Act of the State  

Legislature.  Since that had been done, the permission for construction in the  

particular case could not be faulted.  It was in this context that the Division  

Bench observed that the provisions of the scheme which are contrary to those  

regulations shall prevail over the same. It is material to note that this provision in  

Section 18 (2) (k) of the 1954 Act is pari-materia to Section 59 (1) (b) (iii) of the  

MRTP Act.  It is also material to note that like Section 59 (1) (a) of the MRTP  

Act, Section 18 (1) of the 1954 Act provides as follows:-

“Making and contents of town planning scheme

18. Subject to the provisions of this Act or any other law   for the time being in force:- (1) a  local  authority  for  the  purpose  of   

implementing  the  proposals  in  the  final   development  plan  may  make  one  or  more  town planning schemes for the area within   its jurisdiction or any part thereof;”

 Section 18 of the 1954 Act as well as Section 59 of the MRTP Act  

provide for suspension of the regulations in a given case by making a specific  

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provision in the T.P. scheme, which is basically with the object of implementing  

the proposals in the Final Development Plan. This judgment cannot therefore be  

relied upon to canvass a general  proposition that the provisions in the Town  

Planning scheme are superior to the Development Plan.   

The need for a holistic interpretation  

73. The provision of a statute are required to be read together after  

noting  the  purpose  of  the  Act,  namely  that  there  should  be  an  orderly  

development in the region, local  authority as well  as in the town area.  The  

MRTP Act does not envisage a situation of conflict.  Therefore one will have to  

iron  out  the  edges  to  read  those  provisions  of  the  Act  which  are  slightly  

incongruous, so that all of them are read in consonance with the object of the  

Act, which is to bring about an orderly and planned development.  The provision  

of Section 165 can not be read to mean a right to carry out a development  

contrary to the Development Plan, and in any case without a valid development  

permission particularly when the landowner had not taken any step in pursuance  

to the erstwhile T.P. scheme nor had objected to the changes brought in by the  

authorities  by  following  the  due  process  of  law.   The  submissions  of  Shri  

Naphade and Tulzapurkar with respect to the alleged conflict between T.P. and  

D.P. can not, therefore, be accepted.

74. The observations of  O. Chinnappa Reddy J.  in para 33 of the  

Judgment in  Reserve Bank of India Vs. Peerless Corpn. reported in  [AIR  

1987 SC 1023 = 1987 (1) SCC 424] are instructive in this behalf –  

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“33.  Interpretation must  depend on the text  and   the context. They are the bases of interpretation. One may well   say if the text is the texture, context is what gives the colour.   Neither  can  be  ignored.  Both  are  important.  That  interpretation  is  best  which  makes  the  textual   interpretation  match  the  contextual.  A  statute  is  best   interpreted  when  we  know  why  it  was  enacted.  With  this   knowledge, the statute must be read, first as a whole and then   section by section, clause by clause, phrase by phrase and word   by word. If a statute is looked at, in the context of its enactment,   with the glasses of the statute-maker, provided by such context,   its scheme, the sections, clauses, phrases and words may take   colour and appear different than when the statute is looked at   without the glasses provided by the context. With these glasses   we must  look at  the Act  as  a  whole  and discover  what  each   section, each clause, each phrase and each word is meant and   designed to say as to fit into the scheme of the entire Act.  No  part  of  a  statute  and  no  word  of  a  statute  can  be   construed in isolation. Statutes have to be construed so   that  every  word  has  a  place  and  everything  is  in  its   place.”……

    (emphasis supplied)

75. The counsel for the landowner criticised the impugned judgment  

for accepting the observations of another Division Bench of Bombay High Court  

in  Rusy Kapadia v. State of Maharashtra reported in  [1998 (2) ALL MR  

181], In that matter certain private land was reserved in the D.P. plan of Pune  

for a public park. The landowner had no objection to the same, but the land was  

not acquired.  The landowner sold the land to some other persons, who moved  

the Government for de-reservation of the land to use it for residential purpose.  

The  Government  invited  objections  under  Section  37  of  the  MRTP  Act  and  

thereafter issued the notification granting de-reservation.  At that stage some  

other citizens filed this PIL challenging that notification on the ground that the  

land was ear-marked for environmental purposes and should not be de-reserved.  

It was submitted in that matter on behalf of the purchasers of the land that in   

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the T.P. scheme the use for residential purpose was permissible, and since the  

T.P. scheme was sanctioned subsequent to the development plan, it shall prevail.  

Rejecting that argument, the Division Bench observed in para 8 of its judgment  

as follows:-

“…… We heard and also perused the provisions with the   assistance  of  the  Ld.  Counsel  for  the parties.   Town Planning   Scheme is provided and dealt with by Chapter V of the Act.  This   Chapter has beginning with Section 59 and opening of the section   itself refers that the provisions of this Chapter are subject to the   provisions of the Act.  The provisions precedent to section 59 are   from section 1 to section 58 which include section 31, sub-section   (6) which proclaims that the Draft Plan is final and binding on the   Planning Authority.  As such the binding force would carry even   when  they  anyway  deal  with  the  Town  Planning  Scheme.   Besides this section 39 and section 42 of the Act unequivocally   indicate that the Development Plan has to definitely prevail over   anything and everything including the Town Planning Scheme.  In   view of this the submission is without any merit.”

76. The Division Bench deciding Rusy Kapadia’s case (supra) referred  

to para 25 of the Judgment of this Court in Bangalore Medical Trust Vs. B.S.  

Muddapa  reported in  [1991 (4)  SCC 54] to  emphasize the importance  of  

protecting environment. The High Court quashed the decision of the Government  

granting de-reservation but kept it in abeyance for a period of two years, and  

directed that if during this period the private respondents (i.e. purchasers of the  

land) provided adequate green area as envisaged in the development plan, this  

order will not operate.  This order of the High Court in Rusy Kapadia (supra)  

was challenged by those private respondents, the judgment in which Appeal is  

reported  in  the  case  of  Raju  S.  Jethmalani  Vs.  State  of  Maharashtra  

reported in [2005 (11) SCC 222].  This Court in the case of Raju Jethmalani  

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noted that the observations in Bangalore Medical Trust were in the context of  

Section 38 (A) of that Act.  The Court also noted that though the development  

plan provided the area for  the garden,  no proceedings  for  acquisition  of  the  

concerned plot had ever been initiated.  In that context, the court observed that  

there is no prohibition for preparing the development plan comprising the private  

land,  but  the  plan  cannot  be  implemented  unless  the  said  private  land  was  

acquired.  It was for this reason that the court allowed the appeal and set aside  

the order in Rusy Kapadia’s case, but this time directed the petitioners of the  

PIL (i.e. Rusy Kapadia & Ors.) to raise funds in six months if they wanted the  

park to be maintained, in order to assist the Government to acquire the land,  

failing which it will be open to the appellants to develop the land.  This direction  

was given because the State Government and PMC had expressed inability to  

raise the necessary funds to acquire the concerned plot of land.   It is material to  

note  that  in  Raju  Jethmalani’s case  this  Court  did  not  deal  with  the  

controversy concerning the superiority of the Development Plan vis-a-vis the T.P.  

scheme,  nor  can  the  Judgment  be  read  as  laying  down  a  proposition  that  

development contrary to the D.P. plan is permissible. The observations in the  

case of Rusy Kapadia as quoted above are approved in the presently impugned  

judgment, and have been once again reiterated by another Division Bench of the  

Bombay  High  Court  in  Indirabai  Bhalchandra  Bhajekar  Vs.  The  Pune  

Municipal Corporation and Ors., reported in [2009 (111) Bom LR 4251].  

Having noted the inter-relation amongst the various sections of the statute, in  

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our view, it cannot be said that the T.P. scheme is either superior or of equal  

strength as the Development Plan.

77. The counsel for the developer then relied upon the judgment of  

this Court in Laxmi Narayan Bhattad Vs. State of Maharashtra reported in  

[2003 (5) SCC 413] for further supporting the submission in this behalf.  The  

appellant  in  this  case  was  allotted  an alternative  plot  of  land and monetary  

compensation under an award when part of his land was acquired to implement  

the T.P. scheme finalized in 1987.  The appellant however wanted additionally  

the  Transferable  Development  Rights  (TDR)  as  provided  under  Development  

Control  Regulations  framed later in 1991.  This  Court  declined to accept  the  

submission of the appellant.  It was held that the appellant will be eligible only  

for the benefits under the T.P. scheme, since the acquisition of his land was to  

implement the same.  The D.C. Regulations of 1991 had come subsequently.  

There  was  no  provision  for  TDR  under  the  T.P.  scheme  and  therefore,  the  

appellant  could  not  get  T.D.R  which  are  provided  subsequently  in  the  D.C.  

Regulations of 1991.  This judgment also cannot be read as laying down that the  

T.P. scheme will prevail over or is of equal strength as the D.P. plan.

78. Thus  from  the  analysis  of  the  relevant  provisions  and  the  

judgments it is clear that the right claimed under the erstwhile T.P. scheme could  

not be sustained in the teeth of the reservation for a Primary school under the  

1987 D.P. plan.  The submission in this behalf cannot be accepted.

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Additional  submissions  in  this  Court  in  defence  of  the  

Government Order:-

79. The appellants came up with some more submissions in this Court.  

They  submitted  that  the  shifting  was  protected  under  Rule  6.6.2.2,  and the  

reference to Rule 13.5 in the Government’s order dated 3.9.1996 was erroneous.  

Now, this Rule 6.6.2.2 reads as follows:-

“6.6.2.2 In specific  cases where a clearly  demonstrable   hardship  is  caused  the  Commissioner  may  by  special  written   permission

(i) Permit any of the dimensions/provisions prescribed by   these rules to be modified provided the relaxation sought does   not  violate  the health  safety,  fire  safety,  structural  safety  and   public  safety  of  the  inhabitants,  the  buildings  and  the   neighborhood.   However,  no  relaxation  from  the  set  back   required from the road boundary or FSI shall be granted under   any circumstances.

While  granting  permissions  under  (i)  conditions  may be   imposed on size, cost or duration of the structure abrogation of   claim of compensation payment of deposit and its forfeiture for   non-compliance and payment of premium.”

As can be seen from this Rule it provides for variations with respect  

to dimensions and structural requirements.  This rule 6.6.2.2 is a part of Rule 6  

which contains the ‘Procedure for obtaining building permission/ commencement  

certificates’.  It does not deal with shifting of a particular reservation from one  

plot to another which is covered under Rule 13.5 (with certain restrictions) to  

which we have already referred.  Thus Rule 6.6.2.2 has no application at all.

80. The request  of  the landowner was to shift  the reservation  of  a  

primary  school  from  F.P.  No.  110,  and  to  grant  him  the  permission  for  

development under Section 45 of the Act.  It is also material to note that though  

subsequent to the Government orders, Commencement Certificates were issued,  

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there was no order specifically setting aside the earlier order of the City Engineer  

of  PMC  passed  under  Section  45  of  the  MRTP  Act  rejecting  the  building  

permission by his letter/order dated 6.11.1995.  We are, therefore, required to  

infer  from the Commencement Certificate  which refers  to  Section  44 and 45  

(alongwith other sections) that the appeal against the order of the City Engineer  

is impliedly allowed under Section 47 of the Act.  This is because there is no such  

specific mention of reversal of the order dated 6.11.1995 even in the aforesaid  

order of the State Government dated 3.9.1996.

81. It  was therefore contended on behalf  of  the developer  that the  

order passed by the Government made a reference to a wrong provision of law.  

It was submitted that Section 47 was erroneously relied upon, and the order was  

in fact an order passed under Section 50 of the Act.   

Section 50 reads as follows:-

“50.  Deletion  of  reservation  of  designated  land  for  interim draft of final Development Plan.

(1)  The Appropriate  Authority (other than the Planning   Authority), if it is satisfied that the land is not or no longer required   for the public  purpose for which it  is  designated or reserved or   allocated in the interim or the draft Development plan or plan for   the area of Comprehensive development or the final Development   plan, may request—

(a) the Planning Authority to sanction the deletion   of  such  designation  or  reservation  or  allocation  from  the   interim or the draft Development plan or plan for the area of   Comprehensive development, or

(b) the State Government to sanction the deletion   of such designation or reservation or allocation from the final   Development plan.

(2) On  receipt  of  such  request  from the  Appropriate   Authority,  the Planning Authority,  or  as the case may be,  the   State Government may make an order sanctioning the deletion of   

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such designation or reservation or allocation from the relevant   plan:

Provided that, the Planning Authority, or as the case may   be, the State Government may, before making any order, make   such enquiry as it may consider necessary and satisfy itself that   such  reservation  or  designation  or  allocation  is  no  longer   necessary in the public interest.

(3) Upon an order under sub-section (2) being made,   the land shall be deemed to be released from such designation,   reservation, or, as the case may be, allocation and shall become   available  to  the  owner  for  the  purpose  of  development  as   otherwise  permissible  in  the  case  of  adjacent  land,  under  the   relevant plan.”

As can be seen, Section 50 provides for deletion of a reservation at  

the instance of an Appropriate authority (other than the planning authority) for  

whose benefit the reservation is made.  Such is not the present case.  Under  

sub-section (1) of Section 50, the appropriate authority has to be satisfied that  

the  land  is  not  required  for  the  public  purpose  for  which  it  is  reserved.  

“Appropriate authority” is defined under Section 2 (3) of the Act to mean a public  

authority on whose behalf the land is designed for a public purpose in any plan  

or  scheme  and  which  it  is  authorised  to  acquire.   In  the  instant  case,  the  

acquiring body is PMC, and it will mean the general body of PMC.  Assuming that  

the section applies in the instance case, the general body has to be satisfied that  

the land is no longer required for the public purpose for which it is designed or  

reserved.  In the instant case, it is on the direction of the Minister of State that  

the Municipal Commissioner has given a report which has been used by the State  

Government to pass an order of shifting the reservation from F.P. No.110.  The  

officers  of  the  Planning  Authority  as  well  as  of  the  concerned  Government  

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department were not in favour of deleting the reservation.  The Commissioner’s  

opinion  could  not  have been treated  as  the  opinion  of  PMC.   Under  certain  

circumstances the Municipal  Commissioner can act on behalf  of the Municipal  

Corporation, and those sections are specifically mentioned in Section 152 of the  

MRTP Act.  Section 50 is not one of those sections and, therefore, the State  

Government could not have made any such order sanctioning the deletion of  

reservation on the basis of the report of the Municipal Commissioner.  Section 50  

is, therefore, of no help to the appellants.

82. One of the sections which was pressed into service to defend the  

directions  of  the  State  Government  dated  3.9.1996  and  29.7.1998  and  the  

actions of the Municipal Commission was Section 154 (1) of the MRTP Act.  This  

section reads as follows:-

“154. Control by State Government

(1) Every  Regional  Board,  Planning  Authority  and   Development  Authority  shall  carry  out  such  directions  or   instructions as may be issued from time to time by the State   Government for the efficient administration of this Act. (2) If in, or in connection with, the exercise of its powers   and  discharge  of  it  functions  by  any  Regional  Board,   Planning Authority or Development Authority under this Act,   any  dispute  arises  between  the  Regional  Board,  Planning   Authority  or  Development  Authority,  and  the  State   Government, the decision of the State Government on such   dispute shall be final.”

It was submitted that the State Government was thus entrusted with the  

over-all control in the interest of efficient administration, and its directions had to  

be followed by the Planning Authority, and such directions could not be faulted  

on any count.  In a similar situation in  Bangalore Medical Trust (supra), a  

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reservation for a public park was sought to be shifted for the benefit of a private  

nursing home.  Amongst others Section 65 of the Bangalore Development Act,  

1976 was sought to be pressed into service which authorised the Government to  

issue directions to carry out the purposes of the act.  This Court observed in para  

52  of  that  judgment  that  the  section  authorises  the  Government  to  issue  

directions to ensure that provisions of law are obeyed and not to empower itself  

to proceed contrary to law.  In the present matter, it is to be seen that the  

section  provides  for  directions  or  instructions  to  be  given  by  the  State  

Government for the efficient administration of the Act.  This implies directions for  

that purpose which are normally general in character, and not for the benefit of  

any particular party as in the present case.  The provisions of law cannot be  

disregarded and ignored merely because what was done, was being done at the  

instance of the State Government.  Consequently, Section 154 cannot save the  

directions  issued  by  the  State  Government  or  the  actions  of  the  Municipal  

Commissioner in pursuance thereof.        

83. Thus,  the  reliance  on  these  provisions  is  of  no  use  to  the  

appellants.  It was submitted that while passing the order the Government has  

referred to a wrong provision of law and reference to a wrong provision of law  

does not vitiate the order if the order can be traced to a legitimate source of  

power.   Reliance was placed on the judgment of this  Court  in  PR Naidu v.  

Government of Andhra Pradesh (reported in AIR 1977 SC 854) = [1977  

(3) SCC 160] and VL and Co. v. Bennett Coloman and Co. [AIR 1977 SCC  

1884] = [1977 (1) SCC 561].   In the instant case, however, the order of the  

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Government dated 3.9.1996 cannot be traced to any legitimate source of power,  

and therefore, the situation cannot be remedied by reference to other sources of  

power.   The Division Bench has therefore, rightly commented on this submission  

in paragraph 180 of its judgment that ‘the rub is that the action taken by the  

Planning authority was otherwise not legal and justified’.  It could not therefore  

be justified by reference to other provisions of law because basically the decision  

itself was illegal.  

84. Thus the submission canvassed on behalf of the appellants is that  

although the landowner never objected to the reservation either for a garden or  

a primary school during the process of the revision of the D.P. Plan during 1982  

to 1987, and although he had received the compensation for its acquisition, he  

retained  the  right  to  develop  the  property  for  residential  purposes  merely  

because  under  the  erstwhile  Town  Planning  scheme  residential  use  was  

permissible, and it is supposed to be saved under Section 165 (2) of the MRTP  

Act.  However, as seen from the conjoint reading of Section 39, 42 and 46, and  

the  scheme of  the  Act,  such  a  submission  cannot  be  accepted.  That  apart,  

ultimately it was contended on his behalf the deletion of the reservation of a  

primary school on this plot u/s 37 of the MRTP Act is not necessary, and the  

order passed by the State Government in his favour can be explained u/s 50 of  

the MRTP Act read with D.C. Rule 6.6.2.2.  As we have seen Section 50 as well  

as D.C. Rule 6.6.2.2. have no application to the present case, nor can the power  

of  the  State  Government  under  Section  154  of  the  Act  help  the  appellants.  

Besides,  independent  of  one’s  right  either  under  the  D.P.  Plan  or  the  T.P.  

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Scheme,  one  ought  to  have  a  permission  for  development  granted  by  the  

planning authority traceable to an appropriate provision of law.  In the present  

case there is none.  The appellants are essentially raising all these submissions  

to  justify  a  construction  which  is  without  a  valid  and  legal  development  

permission.  The appellants have gone on improving and tried to change their  

stand from time to time with a view to justify Government’s order in their favour.  

However, “Orders are not like old wine becoming better as they grow older” as  

aptly stated by Krishna Iyer J. in para 8 of  Mohinder Singh Gill  Vs. Chief  

Election Commissioner, New Delhi   reported in  1978 (1) SCC 405. The  

submissions of the appellants in defence of the decision of the State Government  

are devoid of any merit and deserve to be rejected.  

Legality of the acquisition of the land:

Whether the acquisition lapses on account of change of purpose  

of acquisition

85. As  seen  earlier,  the  letter  of  the  landowner  had  led  to  the  

subsequent steps for acquisition.  The landowner was interested in good return  

for his land.  The tenants were interested only in the rehabilitation on the same  

plot of land.  That was their stand until the award dated 12.5.1983.  The Civil   

Court has held the acquisition for the changed purpose under the D.P Plan as  

bad  in  law  on  the  ground  that  the  initially  designated  public  purpose  for  

acquisition was changed.  Was the civil suit maintainable?  Was the view taken  

by the Civil Court a correct view?  We are required to go into that question also,  

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since the order of the Civil Court is sought to be defended by the landowner as  

well as by the developer.

86. The Learned Civil Judge Senior Division set aside the award by his  

judgment and decree dated 23.4.1990 on the ground that though the land was  

initially proposed to be acquired for a garden, it was ultimately to be used for  

another public purpose i.e. setting up a primary school.  It was contended on  

behalf of the developer that in the instant case the declaration under Section 6  

of the L.A. Act was issued when the land was reserved for a garden, and the  

purpose of acquisition must subsist as initially designated until the possession of  

the land is taken.  The Court accepted the contention that the acquisition had  

lapsed due the change of purpose of reservation by the time the award was  

made.  In the instant case, the award was made on 12.5.1983, but pursuant to  

the  award  the  possession  of  the  plot  was  not  taken  in  the  circumstances  

mentioned earlier.  According to the appellant the acquisition was not complete,  

and  the  jurisdiction  to  further  continue  with  the  acquisition  was  no  longer  

available.

87. Two judgments of Bombay High Court were relied upon on behalf  

of the appellants i.e. Industrial Development & Investment Company Pvt.  

Ltd. Vs. State of Maharashtra  reported in  1988 Mh.LJ 1027  (which was  

relied upon by the Learned Civil Judge Senior Division also), and Santu Kisan  

Khandwe Vs. Special Land Acquisition Officer No. 2 Nasik & Ors reported  

in  1995 (1)  Mh.LJ 363, in  support  of  the proposition  that  the purpose  of  

acquisition must subsists till vesting.  As far as the first judgment of the High  

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Court in the case of Industrial Development Company is concerned, the same is  

about the provisions of MRTP Act, and it has been specifically overruled by this  

Court  in  Municipal  Corporation  of  Greater  Bombay Vs. Industrial  

Development Investment Co. Pvt. Ltd. & Ors. reported in 1996 (11) SCC  

501.  It was a case where the concerned parcel of land situated in Dharavi,  

Mumbai was acquired by the Municipal Corporation under the MRTP Act initially  

for the setting up of a Sewage Purification Plant, but subsequently the land was  

sought to be used for the residential and commercial purposes of its employees,  

since this Sewage Treatment Plant was shifted to another parcel of land.  This  

utilisation was held to be completely valid and permissible by K. Ramaswamy, J.   

88. The appellants before us contended that Majmudar, J., the other  

Learned Judge deciding the I.D.I Co’s. case had taken a different view on the  

issue of change of user, and therefore, the issue remained undecided, and that  

the view taken by the Bombay High Court in the above referred two judgments  

deserved acceptance.  The appellants submitted that Majmudar, J. agreed with  

K. Ramaswamy, J. only to the extent  that the petition filed by the respondents  

in the High Court deserved to be dismissed on the ground of delay and laches.   

As far as the ground of change of purpose is concerned, Majmudar J., expressed  

his different opinion in the following few sentences:-

“33. Even though the proposal under Section 126(1) is for   acquisition of land for a specified public purpose, if the planning   authority wants to acquire the land subsequently for any other   public  purpose  earmarked  in  the  modified  scheme  as  has   happened in the present case that is if the appellant-Corporation   which had initially proposed to acquire the land for extension of   sewerage treatment  plant  wanted subsequently  to  acquire  the   

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same land for  its  staff  quarters  then such a purpose must be   specifically indicated in the plan meaning thereby that the land   must  be  shown  to  be  reserved  for  the  staff  quarters  of  the   Corporation and then the Special Planning Authority which had   become the appropriate planning authority, i.e., BMRDA would be   required to issue a fresh proposal under Section 126(1) read with   Section 40(3)(e) and Section 116 of the MRTP Act and follow the   gamut  thereafter.  So  long  as  that  was  not  done  the  earlier   proposal under Section 126(1) and the consequential notification   by the State Government under Section 126(2) which had lost   their efficacy could not be revitalised……….”

89. The appellants relied upon the judgment of this Court in  Special  

Land Acquisition Bombay Vs. M/s Godrej & Boyce reported in AIR 1987  

SC 2421, in support of their contention, that the purpose for acquisition must  

continue until possession is taken.  In that matter this Court held that the title to  

the  land vests  in  the Government only  when the possession  is  taken.   It  is  

however, material to note that this judgment is concerning Section 16 of the L.A.  

Act.  As far as this submission is concerned, as held by K. Ramaswamy J., in   

I.D.A Co’s case (supra), one must note that the scheme of MRTP Act is different  

from that under the L.A. Act.  In para 11 and 12 of his judgment in I.D.I Co’s.  

case (supra) he has specifically held that Section 126 (1) of the MRTP Act is a  

substitute for the notification under Section 4 of the L.A. Act.  A declaration  

under Section 126 (2) is equivalent to a declaration under Section 6 of the L.A.  

Act.  The objections of the persons concerned are considered before such land  

gets earmarked for public purpose in the plan.  Therefore, there is no need of  

any enquiry as under Section 5A of the L.A. Act.  Section 126 (1) (c) specifically   

states that when an application is made to the State Government for acquiring  

the  land  under  the  L.A.  Act,  the  land  vests  absolutely  with  the  Planning  

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Authority.  Therefore, it was held that in the scheme of the MRTP Act, it is not  

necessary that the original public purpose should continue to exist till the award  

was made and possession taken.

90. The  observations  of  K.  Ramaswamy,  J.  in  paragraph  11  of  the  

judgment in I.D.A. Co’s case (supra) are relevant in this behalf.  This para reads  

as follows:-

“11.  If we turn to Chapter III of the MRTP Act, we find   that the entire machinery is provided for preparation, submission   and sanction of development plan proceeding from Section 21   and ending with Section 31.  These provisions, in short, provide   for  preparation  of  draft  development  plant  by  the  planning   authority inviting objections of persons concerned against such   proposals,  hearing  of  objections  filed  by  the  objectors  as  per   Section 28 sub-section (3) by the Planning committee and then   submitting its report  to the planning authority which ultimately   gets  the  proposals  approved  by  the  State  Government  under   Section 30.  All  these provisions do indicate  that requirement,   designation, reservation or earmarking of any land for acquisition   for  any  specified  public  purpose  as  indicated  in  the  plan  has   already undergone the process of hearing after the objections of   the persons concerned were considered and then such land gets   earmarked for public purpose in the plan.  It is after that stage,   therefore, when need to acquire such earmarked, designated or   reserved  land  for  public  purpose  under  the  plan  arises,  that   Section  126(1)  proposal  gets  issued by  the planning  authority   concerned and which itself becomes a substitute for Section 4(1)   notification under the Act.  It would thus, appear that the   scheme of acquisition of earmarked land under the plan   for a specified public purpose thereunder, is a complete   scheme or code under the MRTP Act.  It is a distinct and  independent scheme as compared to general scheme of   acquisition under the Land Acquisition Act.”

(emphasis supplied)   

91. In this connection, we must note Section 126(1) of the MRTP Act  

provides for three modes of acquisition of land for public purposes specified in  

the plan.  The third mode is by making an application to the State Government  

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for acquiring such land under the L.A. Act, and thereafter the land so acquired  

vests absolutely in the Planning Authority.  Sections 126(1) and (2) are extracted  

herein below for ready reference.

"126 - Acquisition of land required for public purposes   specified in plans

(1)  Where  after  the  publication  of  a  draft  Regional  Plan,  a   Development or any other plan or Town Planning Scheme, any   land  is  required  or  reserved  for  any  of  the  public  purposes   specified in any plan or scheme under this Act at any time the   planning Authority, Development Authority, or as the case may   be, [any Appropriate Authority may, expect as otherwise provided   in section 113A] [acquire the land,--

(a) by agreement by paying an amount agreed to, or

(b) in lieu of any such amount, by granting the land-owner or the   lessee,  subject,  however,  to  the  lessee  paying  the  lessor  or   depositing with the Planning Authority, Development Authority or   Appropriate Authority, as the case may be, for payment to the   lessor, an amount equivalent to the value of the lessor's interest   to be determined by any of the said Authorities concerned on the   basis  of  the  principles  laid  down in  the  Land  Acquisition  Act,   1894(I  of  1894),  Floor  Space  Index  (FSI)  or  Transferable   Development Rights (TDR) against the area of land surrendered   free of  cost  and free from all  encumbrances,  and also further   additional Floor Space Index or Transferable Development Rights   against the development or construction of the amenity on the   surrendered land at his cost, as the Final Development Control   Regulations prepared in this behalf provide, or

(c)  by  making  an  application  to  the  State  Government  for   acquiring  such land under  the Land Acquisition Act,  1894(I  of   1894),and  the  land  (together  with  the  amenity,  if  any  so   developed or constructed) so acquired by agreement or by grant   of  Floor  Space  Index  or  additional  Floor  Space  Index  or   Transferable Development Rights under this section or under the   Land Acquisition Act, 1894(I of 1890), as the case may be, shall   vest  absolutely  free  from  all  encumbrances  in  the  Planning   Authority,  Development Authority,  or as the case may be, any   Appropriate Authority.]

(2) On receipt  of  such application,  if  the State Government is   satisfied that the land specified in the application is needed for   

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the public purpose therein specified, or [if the State Government   (except in cases falling under section 49 [and except as provided   in section 113A)] itself is of opinion] that any land included in any   such  plan  is  needed  for  any  public  purpose,  it  may  make  a   declaration to that effect in the Official Gazette, in the manner   provided  in  section  6  of  the  Land  Acquisition  Act,  1894(I  of   1894), in respect of the said land. The declaration so published   shall,  notwithstanding  anything  contained  in  the  said  Act,  be   deemed to be a declaration duly made under the said section:

[Provided that, subject to the provisions of sub-section (4), no   such declaration shall be made after the expiry of one year from  the date of publication of the draft Regional Plan, Development   Plan or any other Plan, or Scheme, as the case may be.]

(3) ……..

(4) ……..”

92. Section 128 of the MRTP Act strengthens the view that we are  

taking.   Section  128  deals  with  a  situation  where  the  land  is  sought  to  be  

acquired for a purpose other than the one which is designated in the plan or the  

scheme.  In that case provisions of  the L.A. Act  apply  with  full  force.   This  

Section reads as follows:-

“128. Power of State Government to acquire lands  for purpose other than the one for which it is designated  in draft plan or scheme.

(1) Where any land is included in [any plan or scheme] as   being reserved,  allotted or designated for any purpose therein   specified or for the purpose of Planning Authority or Development   Authority or Appropriate Authority and the State Government is   satisfied  that  the  same  land  is  needed  for  a  public  purpose   different from any such public purpose or purpose of the Planning   Authority,  Development  Authority  or  Appropriate  Authority,  the   State  Government may,  notwithstanding  anything contained  in   this  Act,  acquire  such  land  under  the  provisions  of  the  Land   Acquisition Act, 1894(I of 1894).

[(1A) Save as otherwise provided in this Act or any other   law for the time being in force where any land included in any   

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plan or scheme as being reserved, allotted or designated for any   purpose  therein  specified  or  for  the  purposes  of  a  Planning   Authority or Development Authority or Appropriate Authority, is   being acquired by the State Government under the provisions of   the  Maharashtra  Industrial  Development  Act,  1961(Mah.  III  of   1962), for the Maharashtra Industrial  Development Corporation   (being  the  Special  Planning  Authority  deemed  to  have  been   appointed  as  such  under  sub-section  (1A)  of  section  40),  the   provisions of sub-sections (2) and (3) of this section shall mutatis   mutandis, apply to such acquisition proceedings.]

 (2) In the proceedings under the Land Acquisition Act,   1894(I  of  1894),  the  Planning  Authority,  or  Development   Authority or Appropriate Authority, as the case may be, shall be   deemed to be a person interested in the land acquired; and in   determining  the  amount  of  compensation  to  be  awarded,  the   market value of the land shall  be assessed as if  the land had   been  released  from  the  reservation,  allotment  or  designation   made in the [any plan or scheme] or new town, as the case may   be, and the Collector or the Court shall take into consideration   the  damage,  if  any,  that  Planning  Authority  or  Development   Authority  or  Appropriate  Authority,  as  the  case  may  be,  may   sustain  by  reason of  acquisition  of  such  land  under  the  Land   Acquisition  Act,  1894(I  of  1894),  or  otherwise,  and  the   proportionate  cost  of  the  Development  plan  or  town  planning   scheme or  new town,  if  any,  incurred  by  such  Authority  and   rendered abortive by reason of such acquisition.

(3) On the land vesting, in the State Government under   sections 16 or 17 of the Land Acquisition Act, 1894(I of 1894), as   the case may be, the [relevant plan or scheme] shall be deemed   to be suitably varied by reason of acquisition of the said land.”

Sub-section (1) of this Section states that in such situations the  

provision of L.A. Act will apply notwithstanding anything contained in the MRTP  

Act, and sub-section (3) specifically states that in such an event the vesting will  

take place under Section 16 and 17 of the L.A. Act as the case may be.  That is   

not the case with respect to the acquisition under Section 126 of the MRTP Act,  

where the vesting takes place in the three circumstances mentioned thereunder.  

In the present case also the acquisition is resorted to by issuing a notification  

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under Section 126 read with Section 6 of the L.A. Act.  The vesting therefore  

takes place at that stage.   

93. After the declaration is made under Section 126 (2) of the MRTP  

Act, the proceedings to determine the compensation follow the procedure as laid  

down under  the  L.A.  Act  until  Section  11 thereof.   A  notice  is  given to the  

interested persons as required under Section 9 of the L.A. Act to lodge their  

claims to compensation for all the interests in such land.  Thereafter, they are  

heard in the inquiry made by the Collector or the S.L.A.O., and after following  

the requirements as laid down in Section 11, the compensation is arrived at.  The  

change of purpose of utilisation of the land acquired under Section 126 of the  

Act does not make any difference in this behalf.  There is no prejudice caused to  

the landowners since the award is made only after affording them full hearing  

concerning their claims for compensation.

94. (i) When it comes to urgency also, there is a separate provision in the  

MRTP Act, distinct from the one in the L.A. Act.  Section 129 of the MRTP Act  

contains provisions different from Section 17 of the L.A. Act.  Under sub-Section  

(2) of Section 129 there is the requirement of paying to the owner of the land  

concerned, an interest @ 4% per annum on the amount of compensation, from  

the date of taking possession of the land until the date of payment.

(ii) Thus the MRTP Act contains a separate scheme in Chapter VII of  

the Act distinct from the one in L.A. Act.  This is because MRTP Act is a special   

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act  enacted  for  the  purpose  of  planned  development  and  the  provisions  

concerning land acquisition are made therein in that context.  

95. We may mention at this stage that recently a Constitution Bench of  

this Court has also held in the context of Section 11A of the L.A. Act (providing  

for two years period to make the award) in Girnar Traders (3) Vs. State of  

Maharashtra & Ors. reported in 2011 (3) SCC 1, that only the provisions with  

respect to the acquisition of land, payment of compensation and recourse of  

legal remedies under the L.A. Act can be read into Chapter VII of the MRTP Act  

concerning  Land  Acquisition,  and  Section  11A of  the  L.A.  Act  will  not  apply  

thereto.  It held that in the scheme of the MRTP Act, the provisions of Land  

Acquisition Act would apply only until the making of the award under Section 11  

of the Act. The Court held that MRTP Act is a self contained code and Sections  

126 to 129 thereof clearly enunciate the intention of the framers that substantive  

provisions  of  L.A.  Act  are  not  applicable  to  MRTP Act.   In  para  129 of  the  

judgment the Constitution Bench has specifically held:-

“129. ……  Vesting,  unlike  Section  16  of  the  Land   Acquisition Act which operates only after the award is made and   compensation  is  given,  whereas  under  the  MRTP  Act  it  may   operate even at the initial stages before making of an award, for   example, under Sections 126(1)(c) and 83.”

96. The appellants herein have contended, and so had the respondents  

in I.D.A. Co’s case (supra) contended that the original  public  purpose should  

continue till the award was made and possession taken.  While dealing with this  

proposition, K. Ramaswamy, J. took an overview of the leading judgments in this  

behalf.  The Learned Judge in arriving at his conclusions referred to the law laid  

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down by this Court in Ghulam Mustafa Vs. State of Maharashtra reported in  

1976 (1) SCC 800,  Mangal Oram Vs. State of Orissa reported in 1977 (2)  

SCC 46  ,  State  of  Maharashtra  Vs.  Mahadeo Deoman Rai  reported  in  

1990 (3) SCC 579  ,  Collector of 24 Parganas Vs. Lalit Mohan Mullick  

reported in  1986 (2) SCC 138, and  Ram Lal Sethi Vs. State of Haryana  

reported in 1990 Supp. SCC 11.

97. It  is  relevant  to  refer  to  these  judgments.   Ghulam Mustafa  

(supra) &  Mangal Oram (Supra) were both cases concerning the acquisition  

under the Land Acquisition Act.  In the case of Ghulam Mustafa, V.R. Krishna  

Iyer J., observed as follows:-

“…..once  the  original  acquisition  is  valid  and  title  has   vested  in  the  municipality  how  it  uses  the  excess  land  is  no   concern  of  the  original  owner  and  cannot  be  the  basis  for   invalidating the acquisition. There is no principle of law by which   a valid compulsory acquisition stands voided because long later   the requiring authority diverts it to a public purpose other than   the one stated in the Section 6(3) declaration.”

In Mangal Oram (supra) a bench of three Judges specifically held  

that use of land after a valid acquisition for a different public purpose will not  

invalidate the acquisition.   In Collector of 24 Parganas (supra) the notification  

under Section 4 of the West Bengal Land Development and Planning Act was  

issued for settlement and rehabilitation of displaced persons.  Subsequently the  

land was utilised for establishment of a Hospital for crippled children, which was  

held to be not vitiated.  In Union of India Vs. Jaswant Rai Kochhar reported  

in  1996  (3)  SCC  491 land  acquired  for  housing  scheme  was  utilised  for  

commercial purpose i.e. a District Centre.  This Court held in that matter that it is  

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will settled law that land sought to be acquired for one public purpose may be  

used for  another  public  purpose.   In  State of Maharashtra Vs.  Mahadeo  

Deoman Rai reported in 1990 (3) SCC 579 yet another Bench of three Judges  

had held that requirement of public purpose may change from time to time but  

the change will not vitiate the acquisition proceeding.  The opinion rendered by  

K. Ramaswamy J. is in conformity with this line of judgments.  Following this law,  

K. Ramaswamy, J. held in para 22 as follows:-

“22.  It  is  thus well-settled legal  position that  the land   acquired for a public  purpose may be used for another public   purpose on account of change or surplus thereof.  The acquisition   validly made does not become invalid by change of the user or   change  of  the  user  in  the  Scheme  as  per  the  approved   plan……….. It would not, therefore, be necessary that the original   public purpose should continue to exist till the award was made   and possession taken.”

This being the position, there is no difficultly in stating that the two  

judgments of the Bombay High Court which are relied upon by the appellants  

(viz. in the cases of I.D.I. Co. (supra) and Santu Kisan Khandwe (supra) do  

not lay down the correct position of law.  We are in respectful agreement with  

the opinion rendered by K.Ramaswamy J. in I.D.I. Co’s Case.  The acquisition of  

the land in the present case cannot said to be invalid on account of change of   

purpose during acquisition.

98. That apart, there is also the question as to whether the Civil Court  

had the jurisdiction  to  entertain  a  suit  to  challenge the acquisition  after  the  

award was rendered.  This is because when it comes to acquisition, the L.A. Act  

provides for the entire mechanism as to how acquisition is to be effected, and  

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the  remedies  to  the  aggrieved  parties.   In  State  of  Bihar  Vs.  Dhirendra  

Kumar & Ors.  reported in  1995 (4) SCC 229 this Court in terms held that  

since the Act is a complete code, by necessary implication the power of the Civil  

Court to take cognizance of a case under Section 9 of the CPC stands excluded,  

and Civil  Court  had no jurisdiction  to  go into the question of  the validity  or  

legality of the notification under Section 4 and declaration under Section 6, which  

could be done only by the High Court in a proceeding under Article 226 of the  

Constitution.  In view of this dictum the civil suit itself was not maintainable in  

the present case.     

Conduct of the Landowner/Developer  

99. The facts as narrated earlier can be placed into proper prospective  

if we note the conduct of the landowner and the developer appointed by him as  

it emerges from stage to stage which is as follows:-

(a) The landowner never raised any objection when the F.P.  No. 110 was  

sought to be reserved for a public purpose, viz. either for a garden/playground  

or subsequently for a primary school.

(b) On his issuing the purchase notice to the Government to purchase the  

land and to commence the proceedings for acquisition, the State Government  

responded by confirming the purchase notice under Section 49 (4) of the Act by  

its letter dated 5.12.1979.

(c) When SLAO started the acquisitions  proceedings,  and when the notice  

under Section 9 of the L.A. Act was issued, the landowner replied the same but  

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did not challenge the acquisition as such.  He merely demanded compensation at  

a  rate of  Rs.  480 per  sq.m, and demanded that  the material  removed after  

demolition  of  the  temporary  structures  (of  the  tenants)  on  the  property  be  

handed over to him.

(d) After the SLAO rejected the objections of the landowner as well as the  

tenants,  and  gave  his  award  dated  12.5.1983,  the  landowner  accepted  the  

compensation on 15.3.1985, though under protest.

(e) After  the  Reference  Court  enhanced  the  solatium  and  the  special  

component by its order dated 15.4.1988, the landowner accepted the enhanced  

amount, once again under protest.  However, he did not file the statutory appeal  

available to him under Section 54 of the L.A. Act.

(f) When the notice to take possession was given, it is the tenants alone who  

filed a suit to challenge the acquisition.

(g) After the injunction in that suit No. 966 of 1983 was vacated, the tenants  

represented to the Minister of State for UDD, pointing out their difficulties.  The  

landowner did not challenge the acquisition in any manner whatsoever.

(h) After the Development Plan under the MRTP Act was sanctioned, though  

the  reservation  was  continued,  the  purpose  of  utilization  of  the  land  was  

changed in the 1987 D.P. plan from garden to primary school.  Thereafter, when  

the SLAO gave one more notice to take possession on 1.3.1988, some of the  

tenants filed another Civil  Suit  bearing No. 397 of 1988 in the Court  of Civil  

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Judge, Senior Division Pune.  It was at that stage that the landowner who was a  

defendant  in  that  suit,  applied  for  transposing  himself  as  a  plaintiff  which  

application  was  allowed  on  2.4.1988.   The  Civil  Court  having  held  that  the  

acquisition had lapsed due to the change of purpose of acquisition (from what it  

originally was in 1966), the PMC filed an Appeal which is pending thereafter.

(i) After Shri Manohar Joshi took over as the Chief Minister on 14.3.1995, the  

landowner entered into a Development agreement with M/s Vyas Constructions  

on 20.10.1995.  Besides, he executed two powers of attorney, one in favour of  

its proprietor Shri Girish Vyas on 20.10.1995 for carrying out development on  

F.P. No. 110, and another in favour of Shri Shriram Karandikar on 26.10.1995 to  

take  necessary  steps  concerning  this  development.   Thereafter  the  follow-up  

steps were taken by Shri Karandikar, until the last stage when Shri Girish Vyas  

stepped in.

(j) After the City Engineer, Pune rejected the proposal of the Architect of the  

landowner  for  building  permission  by  his  reply  dated  6.11.1995,  the  above  

referred Shri Karandikar straightaway wrote to the Minister of State for UDD on  

20.11.1995, and sought a direction to the Municipal Commissioner to consider  

landowner’s application for development of the property.  This application was  

not  addressed  to  the  State  Government  or  to  the  Secretary  concerned,  but  

straightaway to the Minister  of  State for  UDD, and did not  bear  any inward  

stamp of the department.  The noting of the Private Secretary of the Minister of  

State  in  UDD  in  the  margin  of  the  application  showed  that  it  was  directly  

received at the Minister’s level.  Thereafter as directed by the Minister of State,  

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the  Under  Secretary  of   UDD immediately  called  a  meeting  of  high  ranking  

officers such as Secretary UDD, Director Town Planning, Commissioner of PMC,  

City Engineer of PMC, and Under Secretary UDD, which meeting would not have  

been possible unless one had a clout with the Ministry.

(k) The initial stand of the administration was clearly reflected in the notings,  

and in the record of the meeting held on 3.2.1996.  The preliminary note dated  

2.2.1996 from the department clearly stated that the land had been acquired  

after taking the necessary action on the purchase notice, and the compensation  

had been accepted.   The question of returning of the plot  to the landowner  

therefore did not arise.

(l) During  the  meeting  held  on  3.2.1996  the  City  Engineer  of  PMC  also  

pointed out that landowner had never objected to the reservation on the plot, or  

the change in the purpose of its utilization from 1982 to 1987, i.e. during the  

entire process of revising the development plan. If the proceeding before the  

Minister of State was in the nature of an appeal under Section 47 of the MRTP  

Act (against the rejection of the proposal of development) under Section 45, the  

same could not be entertained, and the appeal had to be rejected.  If it was an  

application for de-reservation then it had to be considered under Section 37 of  

the MRTP Act and not otherwise.

(m) The landowner  initially  took the  stand that  it  was  not  an appeal,  but  

subsequently wrote a letter on 23.3.1996 through Shri Karandikar that it was an  

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appeal under Section 47 of the MRTP Act.  The landowner and the developer  

have been changing their stand from time to time.

The  conduct  of  the  Minister  of  State  for  UDD,  the  then  Chief  Minister, and the Municipal Commissioner

100. We may now refer to the conduct of the then Minister of State for  

UDD, the then Chief Minister and the then Municipal Commissioner.   

(a) As stated above the application of the landowner was received directly at  

the level of the Minister of State and immediately a meeting of high ranking  

officers was called, which is normally not done.

(b) In spite of a clear initial stand taken by the City Engineer PMC, as well as  

by the senior officers of UDD such as its Secretary, in view of the landowner  

submitting that on the adjoining plots schools had been developed, the Minister  

of State for UDD asked the Municipal Commissioner to survey the property and  

make a report, whether the PMC really needed the concerned property.  The  

note of the meeting dated 3.2.1996 shows that initially the Minister of State for  

UDD was also of the view that if necessary a direction may be issued under  

Section 37 of the Act, and only a part of F.P. 110 could be released if PMC did  

not have any objection to reduce the area under reservation.  

(c) In  view  of  the  direction  of  the  Minister  of  State,  the  Municipal  

Commissioner who is the Chief Executive of PMC and an I.A.S. officer of a high  

rank was asked to make a report after personally making a site inspection.  A  

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direction to a high ranking officer to make a site inspection is not expected in  

such a case, and is quite unusual and disturbing to say the least.  

(d) In his letter dated 17.4.1996 the Municipal Commissioner reiterated the  

earlier stated stand of PMC to begin with, and then gave the report about the  

schools in the vicinity.  However, he volunteered to add thereafter that private  

institutions may not come to this plot to set up a primary school, and PMC may  

as well spend its funds elsewhere.  This was not correct since the applications of  

two reputed educational  institutions  for this  very plot  were pending with  the  

PMC, and this fact was not stated by the Commissioner in his report.  

(e) In view of the direction of the State Government, the Commissioner   held  

discussions with Shri Karandikar, who offered to give an alternate unencumbered  

plot  of  land of  about  5000 to  10,000  sq.  feet  free  of  cost.   Thereafter  the  

Commissioner recorded in his letter the two proposals given by Shri Karandikar,  

and observed that if the school was to be shifted from F.P. No. 110, an action  

under Section 37 of the MRTP Act as well as the permission from PMC will be  

required.

(f) On 24.4.1996 there is a noting (which is subsequent to the letter of the  

Municipal Commissioner dated 17.4.1996) that the file was called by the then  

Chief  Minister for his perusal.   Thus the Chief Minister had kept himself fully  

abreast with the developments in this matter.

(g) The UDD department did not accept the proposal of shifting the school  

from F.P. No. 110 to a place far away, as seen from the note prepared by the  

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department (signed by the Deputy Secretary on 4.6.1996) recording that if the  

school was to be shifted from F.P. No. 110, it had to come up in the vicinity of  

approximately  200  metres  as  per  rule  13.5  of  Pune  D.C.  Rules.  The  note  

suggested acceptance of the proposal of reduction of 50% of the area under  

reservation by resorting to the procedure under Section 37 of MRTP Act.  

(h) The Minister of State did not approve this note dated 4.6.1996, and in  

view of Shri Karandikar insisting on shifting the school from F.P. No. 110, the  

subsequent note dated 13.6.1996 recorded that if the condition of 200 metres is  

to be relaxed, orders will  have to be obtained from the Chief Minister (which  

power is disputed by the Principal Secretary, UDD in his subsequent note dated  

24.7.1998).  

(i) Thereafter,  the  developer  offered  another  parcel  of  land  at  Lohegaon  

(which is a far off place), on which proposal the department prepared a note to  

give  four  directions  to  PMC  which  have  been  referred  earlier.   Under  that  

proposal, Lohegaon land was to be exchanged for the concerned F.P. No. 110  

which was to be released by invoking DC Rule 13.5, and the landowner was to  

return to PMC the amount of compensation received.  This note was approved by  

the Chief Minister on 21.8.1996 and accordingly a direction was given to the  

Municipal Commissioner on 3.9.1996 to accept the proposal of the developer and  

issue the development permission for F.P. No. 110.

(j) The  Senior  Law  Officer  of  the  PMC  recorded  an  objection  that  such  

permission  will  require  the  approval  of  the  general  body  of  the  Municipal  

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Corporation,  but  the  Municipal  Commissioner  overruled  him on 21.9.1996,  in  

view of the direction of the government to act under DC Rule 13.5 as stated  

above, and ignored the mandatory provision of Section 37 of MRTP Act.  

(k) Thereafter  the  commencement  certificates  have  been  issued  on  

28.11.1996, and an occupation certificate for the tenants’ building was also given  

on 20.12.1997.   

(l) At  this  stage,  the  land  developer  Shri  Girish  Vyas  had  written  on  

15.7.1998 to PMC on learning that according to PMC the Lohegaon land was not  

suitable  for  a  school.  He  offered  to  handover  another  parcel  of  land  in  a  

residential  zone at  Mundhwa (which  is  also  a  far  off  place),  and to  deposit  

whatever amount that was required for the construction of a school of 500 sq.  

feet  area  at  Mundhwa  or  elsewhere,  but  the  Completion  Certificate  for  the  

building for the other occupants of F.P. No. 110 (named as Sun-Dew Apartment)  

be issued.  

(m) There is a clear office note dated 22.7.1998 on record which shows that  

there was already a criticism of this matter in the newspapers and in the General  

Body of PMC, that one educational amenity in that area was being destroyed.  

The  note  recorded  that  Sr.  Chief  Secretary  of  Chief  Minister  had  issued  

instructions,  to  put  up  a  self-explanatory  note  for  the  perusal  of  the  Chief  

Minister, to enable him to answer the probable questions in the assembly.  This  

note dated 22.7.1998 was specifically marked for the Chief Minister.  

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(n) The Principal Secretary UDD had opined on 24.7.1998 that resort to DC  

Rule 13.5 will not be legal, and an action be taken under Section 37 of MRTP  

Act.  Yet, in view of the favourable indication of the Municipal Commissioner in  

his letter dated 17.4.1996, a note was prepared on 27.7.1998 to continue to  

maintain the decision under DC Rule 13.5.  

(o) When Shri  Girish Vyas had entered into the picture through his  above  

referred  letter,  the  Additional  Chief  Secretary  made  a  note  that  since  the  

developer is related to the Chief Minister, the Minister of State may take proper  

decision as per the rules.  It is only because of this note that the Minister of  

State had signed the papers  approving the proposal  of  the department,  and  

directing  that  the  necessary  orders  be  issued to  the  PMC.   Accordingly,  the  

Deputy Secretary of UDD  issued the consequent letter dated 29.7.1998 to the  

Municipal  Commissioner,  permitting  him  to  accept  the  land  at  Mundhwa  or  

elsewhere, as well as the amount to construct a school building of 500 sq. feet,  

and to issue the occupancy certificate for the Sundew Apartments.  

(p) Thus it has got to be inferred that not only the then Chief Minister was  

fully aware about this matter right from April 1996, until the last direction of UDD  

dated 29.7.1998, but was associated with the decision making process and the  

directions issued all throughout.

101. The events in this matter disclose that although the officers of UDD  

and the PMC initially took the clear stand opposing the proposal on behalf of the  

landowner  to  put  up a residential  building  in  place  of  a  Primary School,  the  

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Minister of State for Urban Development asked the Municipal Commissioner to  

personally carry out a survey of the property, on the ground that two schools  

had come up in the near vicinity, ignoring the fact that they had so come up as  

per the provision in the D.P. Plan itself.  Thereafter when it was pointed out that  

the permission of the general body of the Municipal Corporation will be required  

for the modification, that submission was by-passed.  The provision of DC Rule  

13.5 requiring alternate land to be provided for the same purpose within 200  

meters was also given a go-bye, and this rule was utilized to accept the proposal  

to  shift  the  school  to  a  very  far  off  place.  The  mandatory  provision  for  

modification under Section 37 of the MRTP Act was totally ignored. Ultimately  

only  an  amount  for  constructing  a  school  building  elsewhere  and  the  land  

therefor was offered to the Municipal Corporation, for getting a reserved plot of  

land in a prime area of the city released from a public amenity.  Last but not the  

least,  the  Municipal  Corporation  was  instructed  to  withdraw the  First  Appeal  

which it had filed to challenge the decision of the District Court in favour of the  

landowner in the matter of acquisition.

102. It is material to note that after the Municipal Commissioner sent his  

report  dated 17.4.1996, the Private Secretary  to  the then Chief  Minister  Shri  

Manohar  Joshi  had  called  for  the  file  for  his  perusal.   After  all  necessary  

directions  were decided,  the Chief  Minister  placed on record  his  approval  on  

21.8.1996  with  an  apparently  innocent  remark  `All  actions  be  taken  in  

accordance with law’, though he did not forget to record “No objection”.  Thus,  

the decision of  the Government dated 3.9.1996 to shift  the reservation  of  a  

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primary school from F.P. 110 under D.C. Rule 13.5 was under his order dated  

21.8.1996.  Subsequently, when his son-in-law Shri Girish Vyas wrote the letter  

dated 15.7.1998 that money be received for constructing a school somewhere  

else,  it  became obvious  on the record  that  the son-in-law of the then Chief  

Minister was behind the project.  At that stage also the Chief Minister had to be  

pointed out by the Addl. Chief Secretary that the developer is related to him, and  

therefore, the necessary decision may not be taken by him, but by the Minister of  

State.   Therefore,  the  file  went  to  the  Minister  of  State  for  UDD on whose  

direction the last necessary letter has been sent to PMC by the Deputy Secretary  

UDD on 29.7.1998.  However this subsequent decision is in continuation to the  

initial  decision  of  the  Chief  Minister  dated  21.8.1996,  and  therefore  the  

responsibility for the clearance of this disputed construction squarely lies on his  

shoulders.

A brief summary

103. This  is  not  a  case  where  the  landowner  or  his  developer  have  

approached the appropriate authority on the basis of their allegedly subsisting  

rights under the erstwhile T.P. scheme contending that setting up of a primary  

school on that plot contrary thereto would be affecting their right to develop the  

property  and  is  therefore  illegal.   It  is  also  not  a  case  where  they  have  

approached  the  appropriate  authority  pointing  out  that  there  are  sufficient  

number  of  schools  in  the  near  vicinity  with  supporting  information  and,  

therefore, sought deletion of reservation on the concerned plot.  This is a case  

where the landowner never raised either of the two pleas to begin with.  He was  

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conscious of the fact that the land was reserved for a public garden in the 1966  

D.P.  Plan  and,  therefore,  gave  a  purchase  notice  in  May,  1979  which  was  

confirmed by the State Government in December, 1979.  When the D.P. Plan  

was  revised  during  1982-1987,  he  never  raised  any  of  the  above  two  

submissions.   He  did  not  even  challenge  the  subsequent  reservation  for  a  

primary school finalized in 1987.  Only in 1995 when Shri Manohar Joshi became  

the Chief Minister, he appointed his son-in-law as a developer and another power  

of attorney Shri Karandikar to approach the Ministers directly.  He pointed out  

that two schools had come up on the adjoining plots (which was in fact as per  

the D.P. Plan itself), and the Minister used this information to get a report from  

the Municipal Commissioner who suppressed the fact that applications for this  

very plot from two educational institutions were pending with PMC.  Then also  

the order of deletion was not passed either under Section 37 (leave aside Section  

22A), or Section 50 of the Act which was invoked for the first time in this Court  

(and which otherwise also could not be applied).   The order of deletion was  

passed under D.C. Rule 13.5 which had no application.

104. The effect of what has been done is this: that a landowner accepts  

compensation  for  his  land  when  acquisition  proceedings  are  initiated  at  his  

instance.  The landowner does not challenge either the acquisition proceedings  

or  the amount of  compensation,  but in fact  collects  the amount.   When the  

tenants challenge the acquisition, the land owner joins the same subsequently.  

When the award is set aside by the civil  court, and the Municipal Corporation  

files the appeal, the landowner approaches a close relative of the Chief Minister,  

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who  happens  to  be  a  property  developer.   The  development  permission  is  

granted  by-passing  the  objections  of  the  concerned  department  of  the  

Government and the Municipal Corporation, and flouting all relevant provisions of  

law.  The Municipal  Corporation is asked to withdraw the appeal  against  the  

judgment holding that acquisition has lapsed. When the actions are challenged in  

a public interest litigation, the landowner contends that he had a subsisting right  

under  the  erstwhile  T.P.  Scheme,  in  spite  of  a  subsequent  reservation  for  a  

public amenity in the D.P. Plan holding the field, and that the construction is  

permissible though its legality cannot be traced to any provision of law.

105. Present  case  is  not  one  where  permission  was  sought  for  the  

construction under erstwhile T.P. scheme, or under Section 50 of the MRTP Act.  

This is a case where the personal relationship of the developer with the Chief  

Minister  was  apparently  used  to  obtain  permission  for  construction  without  

following any due process of law.  This is a case of rules and procedures being  

circumvented to benefit a close relative of the Chief Minister.  It is a clear case of  

mala fide exercise of the powers and, therefore, the High Court was perfectly  

justified  in  canceling  the  development  permission  which  was  granted  by  the  

State Government.  The development permission could not be defended either  

under  Rule  6.6.2.2  or  under  Section  50.   The  MRTP  Act  requires  a  valid  

development permission under chapter IV of the act,  and in the instant case  

there  is  none.   Consequently,  the  construction  put  up  on  the  basis  of  such  

permission had to be held to be illegal.   In the circumstances, we uphold the  

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judgment of the Division Bench as fully justified in law and in the facts of the  

case.

Impugned Order passed by the Division Bench

106.  (i) As seen above, the Division Bench in the impugned judgment came  

to the conclusion that the disputed construction by the developer was totally  

illegal, and also concluded that there was nothing wrong with the acquisition of  

F.P. No.110.  Having held so, it passed the impugned order which can be split  

into two parts.  The first part of the order is arising out of the determination  

concerning the legality of the construction, and it can be seen in sub-paragraphs  

(a)  to  (d)  of  para  227  of  the  judgment.  The  order  pertaining  to  costs  is  

connected with this part and it is in sub-paragraph (f).  The second part of the  

order is regarding appropriate criminal investigation which is in sub-paragraph  

(e).   

(ii) In the first part of its order the Division Bench directed:-

(a) the cancellation of the commencement certificate dated 20.8.1996,  

3.5.1997  and  3.7.1998,  and  occupation  certificate  dated  

20.12.1997,

(b) the PMC and its Commissioner to call upon the landowner and the  

developer to restore F.P. No.110 to the position prior to the date of  

the earliest of the commencement certificates, failing which these  

authorities will  take action to demolish the disputed construction,  

and collect  the cost of such action from the landowner and the  

developer,

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(c) the  PMC to  move  an  application  for  restoration  of  First  Appeal  

(stamp no.18615 of 1994),  

and

(d) rejected the prayer to revive first appeal without the demolition of  

the structure.

(f) the Division Bench directed payment of cost of Rs. 10,000/- each  

by  the State of Maharashtra, the PMC, the then Chief Minister, the  

then  Minister  of  State,  the  developer  and  the  Municipal  

Commissioner to the petitioners.

107.  In view of the gross illegality in the order of the State Government  

and  PMC  in  granting  the  development  permission,  the  direction  (a)  for  

cancellation of Commencement Certificates and Occupation Certificate had to be  

issued and the same can not be faulted.  As far as the direction (c) is concerned,  

it  was noted by the High Court  that the PMC had been forced by the State  

Government to apply for withdrawal of its First Appeal so that the judgment of  

the  Civil  Court  remains  undisturbed.   Since  the  High  Court  came  to  the  

conclusion that there were nothing illegal about the acquisition, the First Appeal  

had to be restored.  The direction is therefore fully justified.  We may note that  

PMC has already filed an application for restoration of the First Appeal.   

Direction to demolish the disputed building, and rejection of the  

objection based on alleged delay and laches

108.    The direction (b) in the impugned order was issued basically  on  

two  grounds.   Firstly,  the  development  permission  had  no  legal  validity  

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whatsoever, and secondly it was clearly a case of showing favouritism by going  

out  of  the  way  and circumventing  the  law.   Besides,  since  the  challenge  to  

acquisition was being rejected, it would not have been proper to postpone the  

demolition of the disputed construction on the ground of pendency of the First  

Appeal,  since the construction was absolutely  illegal.   Hence,  the High Court  

issued direction (d) as above.   

109. The demolition was objected to by the appellants amongst others  

on the ground that there was delay and laches in moving the petitions to the  

High Court.  It was submitted that if the petitioners were vigilant, they could  

have  seen  the  building  coming  up  from  November  1996  onwards,  but  the  

petitions have been filed only in August 1998.  According to them by the time the  

petitions were filed, the tenants’ wing was complete, and even the other wing of  

Sundew Apartments was nearing completion The Division Bench has rejected this  

submission in paragraph 220 of its judgment by observing that merely because a  

construction is coming up, a citizen cannot assume that it is illegal or that the  

developer had obtained the construction permission in a manner contrary to law.  

Besides,  when  the  petitioner  in  Writ  Petition  No.  4434  of  1998  (who  is  a  

Corporator) sought the information about the construction, he was informed by  

PMC that the same could not be made available under the relevant rules, though  

no such rules were shown to the Division Bench.  The High Court has on the  

other hand noted that as a matter of fact even the construction of the building  

meant for the tenants was actually said to have commenced in March 1997 only.  

Hence, in the facts of the present case it could not be said that the writ petitions  

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suffered on account of delay or laches, and therefore the High Court was right in  

rejecting that contention.

110. With  respect  to  the  direction  for  demolition,  we  may  note  that  

similar  direction  was given  way  back  in  the  case  of  Pratibha Cooperative  

Housing Society Vs. State of Maharashtra reported in 1991 (3) SCC 341.  

The appellant society situated in a prime area in Mumbai had added eight upper  

floors in excess of the F.S.I. permissible, and the Municipal Corporation directed  

removal  of  those  floors.  The  petitioner  society  challenged  the  order  of  the  

Municipal Corporation.  A Division Bench of the Bombay High Court dismissed the  

Writ Petition, but permitted the society to give proposals to reduce the area of  

construction upto the permissible limit.  During the pendency of the appeal from  

the judgment of the High Court, the proposal of the society was examined by the  

Municipal Corporation and was found unacceptable. While dismissing the appeal,  

this Court noted in the aforesaid judgment that ‘the tendency of raising unlawful  

construction  by  the  builders  in  violation  of  the  rules  and  regulations  of  the  

Corporation was rampant’ in the city of Mumbai.  Thereafter it observed in para 6  

of the judgment:-

“We  are  also  of  the  view  that  the  tendency  of  raising   unlawful  construction  and  unauthorised  encroachments  is   increasing in the entire country and such activities are required to   be dealt with by firm hands.

Having noted so it upheld the demolition of the upper eight floors  

and further observed in the last para of the judgment ‘

“Before parting with  the case we would like to  observe   that this case should be a pointer to all the builders that making   

10

of  unauthorised  constructions  never  pays  and  is  against  the   interest of the society.”

111. The observations of the Court however, have had no effect. In M.I  

Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors.  reported in  1999 (6)  

SCC 464, the issue was with respect to the retention of a public amenity viz. a  

park  in  a  congested  area  of  city  of  Lucknow.   The  park  was  of  historical  

importance and also an environmental necessity.  The Lucknow Mahapalika had  

permitted the appellant  builder  to put up a shopping complex and a parking  

facility thereon.  The appellant was permitted to do so without calling any bids  

and for hardly any monetary gain to the Municipal Corporation. This was also a  

case where the construction was on the basis of an agreement with the builder  

which agreement amounted to a fraud on the powers of the Mahapalika, and a  

clear case of favouritism, as in the present case. This Court dismissed the appeal  

and directed the demolition of the disputed construction and observed as follows  

in para 73 of its judgment:-

“73.  ……. This Court in numerous decisions has held  that no consideration should be shown to the builder or   any  other  person  where  construction  is  unauthorised.   This  dicta is now almost bordering the rule of law.  Stress  was laid  by the appellant  and the prospective allottees  of  the   shops to exercise judicial discretion in moulding the relief.  Such   a discretion cannot be exercised which encourages illegality  or   perpetuates an illegality.  Unauthorised construction, if it is   illegal and cannot be compounded, has to be demolished.  There is no way out.   Judicial  discretion cannot be guided by   expediency.  Courts are not free from statutory fetters.  Justice is   to be rendered in accordance with law……”

    (emphasis supplied)

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112. In  the  present  case,  one  would  have  thought  of  retaining  the  

building and utilising it  for a school.   The PMC had shown its  willingness  to  

consider such a proposal.  But the developer wanted to retain half of the flats of   

this ten storey building which would have been contrary to the provision in the  

Development  Plan,  and hence the proposal  fell  through.   That  apart,  such a  

compounding would have been contrary to the above dicta in M.I Builders case  

(supra). There is no redeeming feature whatsoever in the present case.  It is  

clearly a case of misuse of one’s position for the benefit of a relative leading to  

an action which is nothing short of fraud on one’s power and also on the statute.  

There is no reason for us to interfere in the order passed by the High Court  

directing the demolition of the disputed buildings.   

113. The  building  constructed  for  the  tenants  is  meant  for  

accommodating them, and it has been stated on behalf of the developer that he  

is not interested in dis-housing them. The learned senior counsel for PMC Shri  

R.P.  Bhat  has  also  stated on instructions,  that  PMC has  no objection  to the  

retention  of the building constructed for the erstwhile  occupants of  the plot,  

however these occupants will now have to continue in that building as tenants of  

PMC.  As far as these occupants are concerned, their status at the highest was  

that of tenants of the landowner.  They claim to have been residing on this plot  

for over fifty years, and appear to be belonging to economically weaker section  

of the society.  Their only request during the acquisition proceedings was that  

they should be accommodated on this very plot of land.  It is another matter that  

in  the  High  Court  and  in  this  Court  they  supported  the  landowner  and  the  

10

developer, in view of the promise given to them that in the event the landowner  

and the developer succeed, the tenants will get ownership rights.  Now that the  

plea of the landowner and the developer is rejected, the best that can happen to  

these occupants is to get the tenancy rights on this very plot of land.  That apart,  

in view of their long stay on this plot, they had to be rehabilitated.  The offer of   

PMC to accommodate  them on the very  plot  of  land is  more than fair,  and  

deserves acceptance.  Since, the tenants were already in possession of a part of  

the plot for residential purpose, they are being continued to remain on that plot  

for that very purpose.  In that event, the tenants may not be entitled to receive  

any monetary compensation since this offer is as per their original demand and it  

very much compensates them.  However,  since the amount of compensation  

awarded to them was too meagre, if they have collected it, they need not return  

the same to PMC.  This being the position, in our view, the main operative order  

passed  by  the  High  Court  needs  to  be  modified  appropriately.   In  the  

circumstances, we modify and restrict the operative order of demolition only to  

the  extent  it  directs  the  removal  /  demolition  of  the  building  meant  for  the  

persons other than these tenants (i.e. the ten storey building named as Sundew  

Apartments).  

114.  We may as well mention at this stage that as far as this building  

viz. Sundew Apartments is concerned, no one, except a bank had come forward  

to claim any third party rights, or prejudice on account of the order of demolition  

passed by the High Court in spite of the well publicised litigation of this matter.  

The concerned bank had advanced a loan to the developer against the security  

10

of two flats in that building, and it intervened only at the last stage of passing of  

the order.   The Division Bench has rightly  rejected the claim of  the bank in  

paragraphs 224 to 226 of its judgment by observing that the court could not  

accept the contention of the bank that it was not aware of the illegality on the  

part of the developer. The court did not accept the bank’s plea of innocently  

advancing the money, since the mortgage was executed on 13.8.1998, whereas  

the allegations concerning the illegality of this transaction had appeared in the  

newspapers  right  from March  1998.   The  bank  should  have  considered  the  

matter in depth before advancing the loan. In any case the demolition will only  

extinguish its security though its claim against the developer may remain.

Adverse remarks, and the direction for criminal investigation

115. The second part of the operative order in the impugned judgment  

was based on the adverse inferences drawn by the Division Bench against the  

then Chief Minister, the Minister of State and the Municipal Commissioner.  The  

petitioners had infact sought a prosecution against all of them.  However, after  

considering the facts and circumstances of the case the court was not inclined to  

grant that relief, without appropriate prior investigation.  Therefore, with respect  

to this prayer the Court passed an order which is contained in paragraph 227 (e)  

in two parts as follows:  

(i) to  direct  the  State  of  Maharashtra  to  make  appropriate  investigation  

against  the  then  Chief  Minister,  the  Minister  of  State  and  the  Municipal  

Commissioner by an impartial agency, and  

10

(ii) if  satisfied  that  any  criminal  offences  have  been  committed  by  the  

aforesaid respondents in the discharge of their duties, to take such action as is  

warranted in law.    

These three appellants have therefore made two fold prayers viz. expunging the  

adverse  observations,  and  setting  aside  the  direction  for  appropriate  

investigation to be followed by such action as is warranted in law.

 Adverse  remarks  by  the  Division  Bench  against  the  Municipal  

Commissioner, Minister of State and the then Chief Minister:-

    Adverse remarks against the Municipal Commissioner

116. Apart from other allegations, it has been specifically alleged in Writ  

Petition 4434 of 1998 that the then Municipal Commissioner “wilted under the  

pressure of the Chief Minister…..”, “acted in flagrant disregard to the provisions  

of the law”, and “with a view to favour his son-in-law Shri Girish Vyas acted  

illegally and mala fide”.  As we have seen from the notings on the file, initially he  

did take a stand which could be said to be as per the record, and in consonance  

with law.    In his affidavit before the High Court, he took the stand that he  

acted under the directions of the Minister, and hence, he should not be blamed  

for the ultimate decision.  Shri Narshima, learned senior counsel appearing for  

him  drew  our  attention  to  the  Maharashtra  Government  Rules  of  Business  

framed under Article 166 of the Constitution in this behalf.   He also tried to  

defend the Commissioner’s action by invoking Section 154 of the MRTP Act which  

lays  down amongst  others  that  the  Planning  Authority  has  to  carry  out  the  

directions  and  instructions  of  the  State  Government  for  the  efficient  

10

administration of the act. The Division Bench declined to accept this explanation.  

We have already dealt with this submission and recorded our reasons as to why  

we also cannot accept this reliance on  Section 154.

117. (i) It  was  submitted  on  behalf  of  the  Commissioner  that  he  

brought the correct legal position to the notice of the Minister of State to begin  

with, but ultimately had to give up due to the instructions from the Minister of  

State, meaning thereby that he cannot be blamed since he was acting under the  

directions of his superiors.  Reliance was placed in this behalf on the proposition  

in paragraph 16 of  Tarlochan Das Vs. State of Punjab & Ors reported in  

2001 (6) SCC 260 to the following effect:-

“No government servant shall  in  the performance of his   official duties, or in the exercise of power conferred on him, act   otherwise than in his best  judgment except  when he is acting   under the direction of his official superior.”

(ii) This defence cannot help him much if we see his actions atleast on two  

occasions.  Firstly, when he made his report dated 17.4.1996 to the Minister of  

State, he overlooked the fact that the reservation on this plot was for a primary  

school, and not merely for a municipal primary school.  As has been noted by the  

Division Bench, two private schools had already come up on the adjoining plots  

as per the D.P. provision itself. Besides, two renowned educational institutions  

had applied way back for this plot of land for running of schools thereon.  The  

Commissioner  did  not place  this  very vital  information  before  the Minister  of  

State in his report.  On the other hand he stated that Prabhat Road being a  

higher middle class area, a municipal school may not get adequate students. The  

Division Bench has therefore, observed in paragraph 143 of its judgment, that  

10

his report was “far from truth”.  Secondly, he bypassed the general body of the  

Municipal Corporation in the matter of deleting the reservation on F.P. No. 110  

inspite of being aware of the correct legal position, and his attention having been  

specifically drawn thereto by the senior law officer of PMC.

118. Both these acts on the part of the Municipal Commissioner clearly  

amounted to failure on his  part  to discharge his  duty correctly  for which he  

cannot blame anybody else.  This is the least that is got to be stated about his  

conduct by this Court.  The Division Bench has commented that he acted “as a  

loyal soldier perhaps more loyal to the king than king himself”, which was “with a  

view to please his bosses”.  It is true that in the first meeting called by the  

Minister of State for UDD, it was pointed out on behalf of PMC that the land had  

been acquired.  The Commissioner had also pointed out that if the reservation  

was to be reduced or to be deleted, the permission of the Municipal Corporation  

will have to be obtained.  His report of 17.4.1996, cannot however be said to be  

fully satisfactory and he failed in his duty when he permitted the by-passing of  

the Municipal Corporation in the matter of deletion of reservation on F.P. No.110,  

which he claims to have done in view of the direction from the Chief Minister  

under the D.C. Rules.  We can say that a high ranking IAS Officer was expected  

to show his mettle, and he failed to come up to the expectations, but noticing  

that he had no personal interest in the matter, and he was acting under the  

directions  of  his  superior,  the Division Bench could have avoided making the  

particular remarks against him.  

The conduct of the Minister of State

10

119. In paragraph 3 of Writ Petition 4434 of 1998, there is a specific  

allegation against the then Minister of State as well as the then Chief Minister of  

“the blatant misuse of executive powers”, “with a sole objective of ensuring a  

substantial  monetary  benefit  for  M/s  Vyas  Constructions.  The defence  of  the  

Minister of State was that he tried to find out a workable solution, and acted on  

the advice of the officers of his department.  As we have seen from the notings  

and as observed by the Division Bench that initially the Minister of State was also  

of  the  view  that  Section  37  of  the  MRTP  Act  should  be  followed.   In  this  

connection, it is relevant to note that after receiving the letter dated 17.4.1996  

from the  Municipal  Commissioner,  the  UDD department  prepared  its  note  in  

which it specifically recommended that only half the area of the concerned plot  

be released to the landowner, and that he should accommodate the tenants in  

his development of the property on that portion of land, and an action under  

Section 37 be taken for that purpose.  Thus, the departmental note was in fact  

as per the initial stand taken by the Minister of State, yet strangely enough, he  

declined to approve the note.  He contended in his affidavit  before the High  

Court that he was persuaded to accept the suggestion to act under the D.C. Rule  

13.5  under  which  a  similar  action  had  been  taken  in  Kothrud,  Pune.   No  

particulars of that Kothrud precedent were however, placed before the Court.   

120. The Minister of State also tried to contend that until the last he had  

no  knowledge  of  Shri  Murudkar’s  connection  with  the  son-in-law  of  Chief  

Minister. In view of the facts which have emerged on the record, it was just not  

possible to accept this contention.  The Division Bench has given its reasons for  

10

the same and has commented on his conduct as follows at the end of paragraph  

140:-

“…….It is difficult to account for the anxiety of the Minister   of State, UDD, to find out some solution to either reduce the area   of reservation or shift it to a new place.  Only tenable explanation   is that it was a design to ensure that the representation made by   Murudkar on November 20, 1995 was allowed.  It is not being   suggested  by  any  one  that  respondent  No.6  was  personally   interested in the proposal or that he had any particular interest in   seeing that this proposal was sanctioned.  We, therefore, have to   fall  back  on  the  inference  that  respondent  No.6  was  under   pressure from respondent No.5.”

121. In this behalf it is relevant to note the conduct of the Minister of  

State from stage to stage.     

(i) Firstly,  he entertained the application of Shri  Karandikar  directly  at  his  

own level, and thereafter immediately called a meeting of high ranking officers to  

take a decision thereon.  Would such other applications receive such a direct and  

expeditious attention?   

(ii) Secondly,  he directed the Municipal  Commissioner, a very high ranking  

officer, to carry out a personal inspection and to make a report.  Would he issue  

such directions in the case of other similar applications?  

(iii) Thirdly, after the Commissioner’s report, the UDD department supported  

the  initial  view  of  the  Minister  of  State  that  only  a  part  of  F.P.No.  110  be  

released, and that too under Section 37.  Why did he not approve that note?

(iv) He acted as if  he was waiting for the Commissioner to state that two  

schools had come up in the adjoining plots, so that he can release F.P. No. 110  

from the reservation for a Primary school.  Did he not realise that those schools  

had come up as per the Development plan itself?

10

(v)  He relied upon an alleged precedent of release of the land at Kothrud  

under D.C. Rule 13.5 without having the particulars thereof on record.   

(vi) He  tried  to  put  the  blame  on  the  Municipal  Commissioner  and  the  

Municipal Officers for the decision arrived at.  It is true that the Commissioner  

failed in his duties to place full facts on record.  At the same time the fact  that  

the Minister of State ignored the initial notes of his own department and of PMC,  

which were in accordance with law, and went on acting and instructing as per  

the suggestions of Shri Karandikar, which led to the convenient reports cannot  

be lost sight of. He acted clearly against the provisions of law though he was  

fully informed about the same.  Would he have acted in such a manner on any  

other similar application?  

(vii) Would he not be aware that the file was called by the Chief Minister after  

receiving the report from the Municipal Commissioner, and for what purpose?   

The natural inference which flows from all this conduct is that right from the  

beginning, the Minister of State was aware about Shri  Murudkar’s  connection  

with the son-in-law of Chief Minister, and therefore he acted for the benefit of  

the developer, obviously at the instance of the then Chief Minister as inferred by  

the Division Bench.  We have no reason to disagree.

Observations against the Chief Minister

122. (i) The two Writ Petitions contain serious allegations against the then  

Chief Minister at various places.  Thus in paragraph 2 of the Writ Petition 4433 of  

1998, it is alleged that the then Chief Minister misused his executive powers and  

11

authority  for  the  purpose  of  securing  benefits  for  his  near  relatives,  and  in  

paragraph  3  it  is  specifically  stated  that  this  was  for  ensuring  a  substantial  

monetary benefit for M/s Vyas Constructions.  A specific averment in paragraph 2  

in this behalf is as follows:-

“It is the claim of the petitioner that on account of this   close relationship,  the executive powers vested in the State of   Maharashtra  have  either  been  misused  and/or  actions  which   cannot be taken in exercise of the executive powers under the   Act are presumably take in purported exercise of such executive   powers with a full knowledge that the actions are illegal and ultra   vires the provisions of the Act.”

(ii) As we have noted earlier,  on 24.4.1996 the initial  report  made by the  

Municipal Commissioner dated 17.4.1996 was called for the perusal of the then  

Chief Minister.  The basic order dated 21.8.1996 granting no objection, thereby  

approval to the release of the reservation on F.P. No. 110 was that of the then  

Chief Minister. The disputed permission dated 3.9.1996 was issued in pursuance  

thereto.  There is a note dated 22.7.1998 on record which was meant for the  

perusal  of  the  then  Chief  Minister  to  enable  him  to  answer  the  probable  

questions concerning this matter in the assembly. The last order proposed at the  

Government level was also brought to his notice, and he was going to sign it, but  

for the advice of the Additional  Chief  Secretary that since his son-in-law had  

written a letter by that time to the Commissioner, the papers be sent for the  

signature of the Minister of State.  Thus it is quite clear that he was aware about  

the developments in the matter, and the orders therein were issued with his  

approval and knowledge. He cannot therefore, escape the responsibility for all  

the illegal actions in this matter.

11

(iii) The learned senior counsel for the then Chief Minister Shri Shyam Diwan  

objected to the language used in paragraphs 111 and 131 of the judgment which  

accused  him  of  “pettifogging  or  obfuscation  of  facts”.   It  is  stated  in  the  

judgment that the then Chief  Minister “furtively” sought a copy of the report  

dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared by his  

private secretary to the Minister of State for Urban Development calling for the  

file for the then Chief Minister’s perusal. It was submitted that there was no need  

for the then Chief Minister to act secretively.  In our view, there is no use in  

taking  umbrage  behind  the  language  used  by  the  Court.   The  question  is  

whether  the  inference  that  the  Chief  Minister  had  called  for  the  file  for  his  

perusal can be disputed. A private secretary will not make such a note unless the  

file is required by the Chief Minister. In our view the inference was fully justified.  

It was also sought to be contended that the petitions were politically motivated  

and one of the petitioners did not have clean antecedents.  We are concerned in  

the  present  case  with  respect  to  serious  allegations  against  the  then  Chief  

Minister misusing his office for the benefit of his son-in-law and in that process  

destroying a public amenity in the nature of a primary school.  Such submissions  

cannot take away the seriousness of the charge, and the Chief Minister must  

squarely explain and justify his actions.  

123. (i) With respect to the Chief Minister calling the file for his perusal, the  

Division Bench has posed a question as to whether it was an idle curiosity. “Why  

were the Chief  Minister  and the Minister of State interested in one particular  

case? What momentous public policy decision was sought to be taken in this  

11

matter?”  Shri Murudkar was not someone for whom the administration could  

have moved so fast.  It was very clear that the Chief Minister was very much  

interested in  knowing the progress  of  the case all  throughout.   The obvious  

inference was that the then Chief Minister and the Minister of State took keen  

interest in the matter only because Shri Murudkar had appointed the son-in-law  

of the Chief Minister as his developer.

(ii) The Division Bench has dealt with the affidavit of the then Chief Minister,  

some of the relevant events in this behalf and then held that the conduct of the  

then Chief  Minister  definitely  leads to the conclusion that he was very much  

interested in knowing the progress of the case pertaining to F.P. No.110, and he  

wanted to apprise himself of report dated 17.4.1996 made by the Commissioner  

of PMC.  Therefore, the Division Bench held at the end of para 131 as follows:-

“We  are  afraid,  unless  the  Court  is  naïve  and  its   credulousness is stretched to the extreme, the inference has to   be that, not only was there an attempt on the part of respondent   No.5 to ‘concern’ himself with the file even prior to August 1996,   but also that respondent No.5 had taken an active interest in the   case.”

124. (i)   Then we come to the  merits of the disputed permission dated  

3.9.1996  which  was  in  pursuance  to  the  order  of  the  Chief  Minister  dated  

21.8.1996 viz. “All actions be taken in accordance with law.  No objection”.  It  

was sought to be contended on his behalf that he had clearly stated that all   

actions be taken in accordance with law.  But we cannot ignore that he had  

simultaneously  stated in  his  remarks  of  approval,  “no objection”  to  the note  

containing the proposal which had been put up before him, and which was not in  

11

accordance with law.  The note clearly stated that the reservation on the land at  

Lohegaon be shifted from agricultural zone to residential zone by following the  

procedure  under  Section  37  of  the  MRTP  Act.   But  as  far  as  shifting  of  

reservation from F.P. No. 110 was concerned, a different yardstick, namely that  

of D.C. Rule 13.5 was applied for which there was no explanation whatsoever.  

Thus he gave no objection to an illegal proposal as proposed in the note, and  

directed that all actions be taken in accordance with law which will only mean  

that the proposal be somehow fitted in four corners of law.   

(ii) The letter dated 17.4.1996 from the Municipal Commissioner had already  

been forwarded for his perusal. This report had clearly stated to begin with that  

the departmental permission had been rejected because the property was under  

reservation.  The report of the Municipal Commissioner also stated that in case  

the change was proposed in the use of the property, permission had to be taken  

from the Pune Municipal Corporation.  Could not the Chief Minister understand  

that D.C. Rule 13.5 could not be applied to F.P. No.110 in the manner in which it  

was  suggested?   Could  he  not  understand  that  the  permission  of  Municipal  

Corporation was required as per the law?  In the teeth of these legal provisions  

he gave no objection to the proposal to shift the reservation of F.P. No. 110  

under D.C. Rule 13.5, and to shift the reservation of the plot at Lohegaon under  

D.C. Rule 37.  In between there is a noting of 22.7.1998 which recorded that the  

Chief  Minister  had  to  be  briefed  about  this  matter  appropriately  for  him to  

answer the questions in the legislative assembly.  The note has also recorded  

that  there  was  a  criticism  about  this  matter  in  the  local  newspaper.  

11

Subsequently, thereafter when the land at Mundhwa or elsewhere was sought to  

be exchanged in place of Lohegaon, the letter of Shri Girish Vyas was already on  

the file of the PMC and the Government.  Still  he was going to sign note of  

approval but for the advice of the Additional Chief Secretary.  This shows the  

keen interest of the then Chief Minister in the matter and it can certainly be  

inferred that he was so acting for the benefit of his son-in-law.  

125. According to Shri Naphade, the learned counsel appearing for the  

developer, the inference of  mala fides is misconceived, as it is contrary to the  

material  on  record.   He  submitted  that  the  Municipal  Commissioner’s  report  

dated 17.4.1996 was not found to be untrue or  false by any authority.   He  

emphasized that as per the report (i) There are about 36 structures on the land  

which are occupied by tenants; (ii) Half the area of the plot is encumbered; (iii)  

There  are  two  educational  institutions  in  the  vicinity  of  the  plot  and  11  

educational  institutions in the area; (iv) The acquisition of  the plot  has been  

declared illegal by the Court; (v) The locality in question is inhabited by higher  

middle class people and there may not be an appropriate response to a Primary  

School; (vi) Considering the funds available the Pune Municipal Corporation is  

inclined to develop school on some other plot reserved for school.  He defended  

the decision of the then State Government and the actions taken in pursuance  

thereof by submitting that (i) There is no detriment to Public  Interest, as no  

Municipal Primary School was required in the locality. (ii) The Appellant made  

alternative plot available at his own cost in the locality where a Municipal Primary  

School was required. (iii) The developer paid a sum of Rs. 25 lakhs to the PMC  

11

for construction of Municipal Primary School wherever it wanted to put it up. (iv)  

Tenants occupying dilapidated structures were rehabilitated on the very plot and  

were to get the ownership right free of cost.

126. These arguments are based on an erroneous premise that the plot  

was reserved for a Municipal  Primary school.   It  was reserved for a Primary  

school and not merely a Municipal Primary school.  It is on this false premise that  

the  Commissioner  had  opined  that  this  being  a  higher  middle  class  area,  a  

Municipal  Primary  school  may  not  get  an  appropriate  response.  The  two  

adjoining plots were also reserved for Primary schools as per the D.P. plan, and  

thereon two private schools had already come up.  That cannot be a ground to  

say that this plot be released from reservation.  The Municipal Commissioner had  

failed  to  place  on  record  a  very  material  information  that  one  renowned  

educational institution had sought this very plot for educational activities way  

back in 1986.  The Municipal  Commissioner had not specified as to what he  

meant by the particular area when he stated that eleven educational institutions  

had come up therein.  The plot had been reserved for a Primary school after an  

elaborate planning process wherein the requirements of the particular area are  

appropriately considered.  This is not the first case where there would be three  

adjoining plots reserved for Primary schools.  There are many such schools and  

educational complexes which always require adjoining plots and are developed  

accordingly.  The submission that the acquisition had been declared illegal by the  

Court was also a very convenient submission ignoring that the Municipal Appeal  

therefrom  was  pending  in  the  High  Court.   There  was  no  reason  for  the  

11

Corporation  to  be  deterred  by  the  encumbrances  on  the  plot,  since  the  

compensation therefor had already been arrived at as per the law, and it did not  

cast much burden on the Corporation.  The report of the Municipal Commissioner  

was clearly made “to please the bosses” as observed by the Division Bench, and  

could not be accepted as the basis for a valid legal action.  The acceptance of  

the offer of the developer would mean that whenever anybody wants to delete a  

reservation of a public amenity in a prime area, he can throw the money to the  

Municipal Corporation and say that let the amenity come up elsewhere, but the  

reservation be deleted.  Such an approach will  mean destruction of the entire  

planning process and deserves to be rejected.  None of these arguments can  

whitewash the material on the record which clearly leads to the inference, that  

the impugned actions were motivated to benefit  the son-in-law of then Chief  

Minister.  

127. (i) The learned counsel  for  the then Chief  Minister  objected to the  

inference  drawn  by  the  Division  Bench  that  the  then  Chief  Minister  had  

pressurized the officers into taking an illegal action.  It was submitted that the  

notings on the file indicated that there were deliberations on issues involved in  

the matter at the government level on a number of occasions.  The course of  

action  suggested in  the PMC note  dated 26.7.1996 was approved  at  several  

levels  of  authority  before  the  same  coming  to  the  then  Chief  Minister.  The  

Deputy Secretary in the UDD Shri Vidyadhar Despande has also stated in his  

affidavit that there was no pressure from the office of the Chief Minister or for  

himself.  That apart there were cogent factors explaining why there was no need  

11

for yet another primary school in the locality and generally the thinking was that  

public interest would gain from the proposed course of action.   

(ii) As far as this latter submission about there being no need of one more  

primary school, one may immediately note the scant respect that the then Chief  

Minister had for the cause of education and the method of planning.  One fails to  

see as to what public interest was going to be achieved by preventing a primary  

school from coming up on a designated plot.  There is no use stating that instead  

a primary school will come up in another area.  It will of course come up in that   

area if it is so required.  But there is no need to tinker with a school in another  

area, provided by a proper planning process.   

(iii) We  have  already  noted  the  manner  in  which  the  matter  had  been  

handled. The application of the developer was entertained directly at the level of  

the Minister of State.  Immediately a meeting of high ranking officers was called.  

Inspite of a clear stand taken by the offices of UDD as well  as by PMC, the  

Minister  of  State  asked the  Commissioner,  a  high  ranking officer  to  make a  

personal site inspection and then a report, only because the developer submitted  

that two schools had come up on the adjoining plots.  Was it not clear to the  

Minister of State that those two schools had come up as per the provisions of the  

D.P. plan?  The Municipal Commissioner in his report, and thereafter the officers  

of the UDD, initially submitted that if deletion of reservation was to be resorted,  

the  action  will  have  to  be  initiated  under  Section  37 of  the  Act.   It  is  only  

because of the insistence of the developer that the resort to D.C. Rule 13.5 was  

adopted.  During the course of all these developments the file had been called by  

11

the Secretary to the Chief Minister. Were these not clear signals to the officers as  

to what was the interest of the then Chief Minister?   There will never be any  

direct evidence of the officers being pressurized, nor will they say that they were  

so pressurized.  Ultimately one has to draw the inference from the course of  

events, the manner in which the officers have acted and changed their stand to  

suit the developer and the fact that the son-in-law of the then Chief Minister was  

the  developer  of  the project.   As  we have noted earlier  the  affidavit  of  the  

Commissioner clearly indicated that he tried to place the correct legal position  

initially  but  ultimately  had  to  give  in  from the  pressure  from the  superiors.  

Unless one is naïve one will have to agree with the conclusion which the Division  

Bench had drawn in para 136 of its judgment to the following effect:-  

“We are left with only one conclusion which we have to   draw from the facts on record and, to quote the words of the   petitioners, “the conduct of respondent No.5 itself indicates that   he had ‘pressurized’ the officials into taking an illegal action” and   this, in our view, is certainly misuse of executive powers.”  

128.  The learned senior counsel who had appeared for the then Chief  

Minister in the High Court had relied upon amongst others on the judgment of  

this Court in  E.P. Royappa vs. State of Tamil Nadu [AIR 1974 SC 555].  

Krishna Iyer J. had observed in paragraph 92 of his judgment in that matter that  

“we must not also overlook that the burden of establishing  mala fides is very  

heavy on the person who alleges it.  The allegations of mala fides are often more  

easily made than proved, and the very seriousness of such allegations demands  

proof of a high order of credibility.”  Shri Royappa, while challenging his transfer  

had made allegations  of  mala  fides against  the then Chief  Minister  of  Tamil  

Nadu, and this Court had refused to accept those allegations. The Division Bench  

11

noted  in  the  presently  impunged  judgment  that  Shri  Royappa  was  a  Chief  

Secretary,  and hardly any Chief Secretary of a State Government was known  

who would be in any way hamstrung, or stopped from getting information or  

documents on the basis of which he makes out the case of  mala fides against  

the officer holding a public office.  The Division Bench rightly observed at the  

end of para 129 as follows:-

“We do agree with Mr. Salve that a finding of mala fides   against public authority, that too of the rank of Chief Minister of   the  State,  should  not  be  lightly  drawn.   It  is  quite  a  serious   matter.  But, if the Court is required to draw such an inference   after examining the record, we feel that the Court cannot flinch   from its duty.”

129. In  one  earlier  case  i.e  Shivajirao  Nilangekar  Patil  v.  Dr.  

Mahesh Madhav Gosavi [1987 (1) SCC 227], a single Judge of the Bombay  

High Court had held that in the facts of that case it could be reasonably held that  

the marksheet of the M.D. Examination was tampered to benefit the daughter of  

Shri Shivajirao, the then Chief Minister of Maharashtra.  The Division Bench of  

the Bombay High Court took the view that the circumstances relied on clearly  

formed a reasonable and cogent basis for the adverse comments on the conduct  

of Shri Shivaji Rao.  The Division Bench had noted that the single Judge had  

followed  the  tests  led  down  by  this  Court  earlier  in  State  of  U.P.  Vs.  

Mohammad Naim [AIR 1964 SC 703] which were as follows:-

“10.  ……(a)  whether  the  party  whose  conduct  is  in   question is before the court or has an opportunity of explaining   or defending himself;  (b) whether  there is evidence on record   bearing on that conduct justifying the remarks; and (c) whether it   is  necessary  for  the  decision  of  the  case,  an  in  integral  part   thereof,  to  animadvert  on  that  conduct.   It  has  also  been   

12

recognized  that  judicial  pronouncements  must  be  judicial  in   nature, and should not normally depart from sobriety, moderation   and reserve.”

Having approved the approach of the High Court this Court held in the facts of  

Shri Shivajirao’s Case as follows:-

“50. There is no question in this case of giving any clear   chit to the appellant in the first appeal before us.  It leaves a   great deal of suspicion that tampering was done to please Shri   Patil or at his behest.  It is true that there is no direct evidence.   It  is  also  true  that  there  is  no  evidence  to  link  him  up  with   tampering.   Tampering  is  established.   The  relationship  is   established.   The  reluctance  to  face  a  public  enquiry  is  also   apparent.   Apparently Shri Patil,  though holding a public  office   does not believe that “Ceaser’s wife must be above suspicion…..”

130. The facts of the present case are stronger than those in the case of  

Shri Shivajirao Nilangekar (supra).  Here also a relationship is established.  

The basic order dated 21.8.1996 in this matter granting no objection to an illegal  

action is signed by the then Chief Minister himself.  That was after personally  

calling for the file containing the report dated 17.4.1996 sent by the Municipal  

Commissioner  much earlier.   The entire  narration  shows that  the  then Chief  

Minister had clear knowledge about this particular file all throughout, and the  

orders  were  issued  only  because  the  developer  was  his  son-in-law,  and  he  

wanted to favour him.  Ultimately, one has to draw the inference on the basis of   

probabilities.   The test  is  not  one of  being proved guilty  beyond reasonable  

doubt, but one of preponderance of probabilities.

Appropriate actions taken in a Public Interest Litigation

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131. It was contended before the High Court that the rule as to the  

construction of pleadings should be strictly applied in the present case and that  

the material as contained in the petitions did not justify any further probe.  The  

High Court rightly rejected that argument.  There was a sufficient foundation in  

the petition for the further steps to be taken by the High Court.  The petitions  

before  the  High  Court  were  in  the  nature  of  public  interest  litigation.   The  

purpose in such matters is to draw the attention of the High Court to a particular  

state of facts, and if the Government action is found to be contrary to law or  

affecting the rights of the citizen, the court is required to intervene.  There was a  

specific plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that  

“the fundamental and legal right of the citizens of Pune of submitting objections  

and suggestions to any modification in the Final Development Plan u/s 37 of the  

act has been infringed”, and that was solely on account of the developer being a  

close relation of the then Chief Minister who was also the Minister for Urban  

Development which controls the appointments of a Municipal Commissioner to a  

Corporation established under the B.P.M.C Act 1949.  A prima facie case had  

been made up in the petitions  which got  supported when the High Court  in  

exercise of its Writ Jurisdiction rightly called for the relevant files from the State  

Government and the PMC to explain and defend their decisions.

132. Public  Interest  Litigation  is  not  in  the  nature  of  adversarial  

litigation, but it  is a challenge and an opportunity to the government and its  

officers  to make basic human rights meaningful  as observed by this Court in  

paragraph 9 of  Bandhua Mukti Morcha Vs. Union of India [AIR 1984 SC  

12

802]. By its very nature the PIL is inquisitorial in character.  Access to justice  

being  a  Fundamental  Right  and  citizen’s  participatory  role  in  the  democratic  

process itself being a constitutional value, accessing the Court will not be readily  

discouraged.  Consequently, when the cause or issue, relates to matters of good  

governance in the Constitutional sense, and there are no particular individuals or  

class of persons who can be said to be injured persons, groups of persons who  

may  be  drawn  from  different  walks  of  life,  may  be  granted  standing  for  

canvassing the PIL.  A Civil Court acts only when the dispute is of a civil nature,  

and the action is adversarial. The Civil Court is bound by its rules of procedure.  

As against that the position of a Writ Court when called upon to act in protection  

of the rights of the citizens can be stated to be distinct.   

133. It was submitted on behalf of the appellants that inference should  

not be drawn merely on the basis of the notings in the file, and the remarks  

made by the Division Bench ought to be expunged.  In this connection we may  

profitably refer to the observations of this Court  in  P.K. Dave Vs. Peoples’  

Union of Civil Liberties (Delhi) & Ors.  reported in  1996 (4) SCC 262.  A  

Writ  Petition by way of a PIL was filed before the Delhi  High Court  alleging  

commission of gross financial irregularities by the Director of Govt. Hospitals in  

Delhi.   Notings  in  the  office  file  produced  by  the  Government  showed  that  

despite suggestions made by the Health Secretary and Chief Secretary to the  

Delhi Administration, Lt. Governor of the Administration had refused to take any  

action against the Director.  The High Court had passed strictures against the Lt.  

Governor.  The learned senior counsel Shri Venugopal appearing on behalf of the  

12

appellant Lt. Governor had submitted that the strictures based on the basis of  

the notings should be expunged.  Rejecting the submission this Court observed  

in paragraph 8 as follows:-

“8.  …..  Where  the  relevant  departmental  files  were   produced before the court by the Government and the court on   scrutiny of the same came to the conclusion that the decision has   not  been  taken  fairly,  then  the  court  would  be  entitled  to   comment on the role of such person who took the decision….. In   such  circumstances  if  the  contention  of  Mr.  Venugopal  is   accepted then no administrative authority and his conduct would   come  under  the  judicial  scrutiny  of  the  court.   That  an   administrative order is subjected to judicial review is by now the   settled position and no longer remains res integra.  This being   the  position  we  fail  to  appreciate  the  contentions  of  Mr.   Venugopal that the notings in the file or the orders passed by the   Secretary and Chief Secretary as well as the Governor should not   have  formed  the  basis  of  the  strictures  passed  against  the   appellant.”  

134. Reliance was placed on the judgment of this Court in Jasbir Singh  

Chhabra Vs. State of Punjab reported in 2010 (4) SCC 192 to submit that  

the  issues  and  policy  matters  which  are  required  to  be  decided  by  the  

Government are dealt with by several functionaries, some of whom may record  

notings on the files, and such notings recorded in the files cannot be made basis  

for a finding of mala fides.  There can be no dispute with the preposition when  

policy matters are involved as in that case where the question was whether the  

State Government’s  refusal  to sanction change of land use from industrial  to  

residential  was  vitiated  due to  mala  fides claimed  to  be  arising  out  of  such  

notings.  In the present case we are concerned with the notings not concerning  

with  any  policy  matter,  but  with  respect  to  the  application  on  behalf  of  an  

individual landowner to delete the reservation of a primary school on his land,  

12

where the developer is the son-in-law of the Chief Minister. The notings in the  

present  case  are  quite  clear  and  the  inference  of  mala  fides therefrom  is  

inescapable.

135. We have noted the observations and the conclusions arrived at by  

the High Court with respect to the conduct of the then Municipal Commissioner,  

the Minister of State and the then Chief Minister. The High Court has drawn its  

inferences and made the remarks after following the dicta in State of U.P. Vs.  

Mohd. Naim (supra). Having seen the totality of facts and guidelines laid down  

by this Court in P.K. Dave’s case (supra), we do not see that we can draw any  

other inference then the one which was drawn by the Division Bench.  We will be  

failing in our duty if we do not draw the inference which clearly arises from the  

notings on the file, the affidavits filed by the persons concerned and the law with  

respect to drawing such inference.  In the circumstances, we refuse to expunge  

any of these remarks rendered by the Division Bench.

Orders for Criminal Investigation

136. Having drawn the above inferences, and having made the adverse  

remarks  about  the conduct  of  the then Chief  Minister,  Minister  of  State and  

Municipal  Commissioner  the  impugned  judgment  has  directed  the  State  of  

Maharashtra  to  initiate  appropriate  investigation  against  them  through  an  

impartial agency, and if satisfied that any criminal offence has been committed  

to take such action as warranted in law.

137. Now, as far as this direction is concerned, we have to note that as  

far as the Municipal Commissioner is concerned, though the Division Bench did  

12

not approve his conduct and squarely criticized him for being more loyal to the  

king then the king himself,  yet in terms it observed in paragraph 144 of the  

judgment, that it did not attributive any motive to him for his actions. This para  

reads as follows:-  

”144.   While  we  may  not  attribute  any  motive  to   respondent  No.10  for  his  actions,  we  cannot  approve  of  the   actions  taken by him.  We have already pointed out  that  the   action  of  withdrawing  the  appeal  was  wrong.   In  our  view,   respondent No.10 would have served the interests of the PMC   better if he had placed his dilemma before the PMC and sought a   resolution  thereof,  particularly  when  he  believed  that  the   Government was issuing him instructions contrary to law, which   he believed to exist.   But,  perhaps,  this  might not have been   clear to him at the time when he acted to please his masters.   While  holding  that  the  actions  taken by  the  tenth  respondent   were contrary to the provisions of the BPMC Act, MRTP Act and   Development Control Rule No.13.5, we find it difficult to accept   the suggestion in the writ petitions that he was a willing party to   the process of abuse of executive powers.”   

That apart, Shri Narsimha, learned senior counsel appearing for the Municipal  

Commissioner drew our attention to Section 147 of the MRTP Act which provides  

that no suit, prosecution or other legal proceedings shall lie against any person  

for anything which is in good faith done or entitled to be done under this Act or  

any rules or regulations made therein.  Reliance was also placed on Section 486  

of the B.P.M.C. Act 1949 which is also to the similar effect.  The Division Bench  

has also clearly stated that it did not accept the suggestion in the writ petitions  

that the Commissioner was willingly a party to the process of abuse of executive  

powers.  This being the position, in our view it would not be correct to direct any  

criminal investigation against the then Municipal Commissioner, and in our view  

to that extent the order of the Division Bench requires to be corrected.

12

138. As far as the Minister of State is concerned also, the Division Bench  

commented adversely on his conduct in paragraph 140 of its judgment. Yet it  

also observed in paragraph 142 that there was nothing on record as suggested  

that he had any personal motive in the matter. The relevant observation at the  

end of paragraph 142 reads as follows:-  

“…….All that we can say is that there is nothing on record   to suggest that he had any other personal motive in the matter.   We, therefore, infer that respondent No.6 must have done it to   oblige  his  senior  colleague  i.e.  the  then  Chief  Minister,   respondent No.5.”  

The Division Bench has thus specifically inferred that whatever he has done, was  

done to oblige his senior Minister i.e.  the then Chief Minister and he had no  

personal motive in the matter.  In the circumstances, he is entitled to a benefit  

of doubt and, therefore, the direction for criminal investigation against him also  

can not be sustained.  

139. As far as the Chief Minister is concerned, however, it is very clear  

that he was fully aware about the application made by Shri Karandikar who was  

a camouflage for his son-in-law. He had called for the file after the Municipal  

Commissioner sent his report in April, 1996.  But for his personal interest, the  

Government and the Municipal officers would not have taken the stand and put  

up the notes that he wanted to be on record.  The shifting of the reservation  

from F.P. No.110 was clearly untenable under D.C. Rule 13.5.  The by-passing of  

the Municipal Corporation and ignoring the mandate of Section 37 was also not  

expected, yet he gave “no objection” to a contrary and totally unjustified order.  

The earlier part of his order viz. “all action be taken in accordance with law”  

12

therefore becomes meaningless, and is nothing but a camouflage.  The conduct  

on the part of the then Chief Minister prima-facie amounts to a misfeasance and  

Shri  Wasudev,  learned  senior  counsel  appearing  for  the  original  petitioners  

submits that such a conduct ought to be sternly dealt with.    

140. The  learned  counsel  for  the  Chief  Minister  on  the  other  hand  

pointed out that there were no prayers for prosecution in the Writ Petitions, and  

the  direction  contained  in  paragraph  227 (e)  was beyond the  prayers.   The  

question therefore, is whether the operative order passed by the High Court in  

this behalf is legally tenable.  The direction given by the High Court in paragraph  

227 (e) is as follows:-

“(e)  As  far  as  prayer  for  directing  prosecution  against   Respondent Nos. 5, 6 and 10 is concerned, after considering the   facts and circumstances of the case we are not inclined to grant   this  relief.  …...  Nonetheless,  we direct  the  first  respondent  to   make appropriate investigations through an impartial agency and,   if satisfied that any criminal offences have been committed by the   aforesaid respondents in the discharge of their  duties,  to take   action as is warranted in law.”

Respondent Nos. 5, 6 and 10 were the then Chief Minister, the then Minister of  

State and the then Municipal Commissioner.     

141.   In this context we have to take note of the judgment of a bench  

of three Judges of this Court in this behalf on a review petition in the case of  

Common Cause, A Registered Society Vs. Union of India & Ors. reported  

in 1999 (6) SCC 667. The Minister concerned in that matter had committed the  

misfeasance  of  allotment  of  retail  outlets  of  petroleum  products  out  of  the  

discretionary quota in an arbitrary and mala fide manner.  Such allotments had  

been set aside by a bench of two Judges by its judgment between the same  

12

parties reported in  1996 (6) SCC 530.  The Court had thereafter passed an  

order  that the Minister  concerned shall  show cause within  two weeks why a  

direction be not issued to the appropriate police authority to register a case and  

initiate prosecution against him for criminal breach of trust of any other offence  

under law.  This Court held in paragraph 174 of its judgment on the review  

petition as follows:-

“174.  The other direction, namely, the direction to CBI to   investigate “any other offence” is wholly erroneous and cannot be   sustained.   Obviously,  direction  for  investigation  can  be  given   only if any offence is, prima facie, found to have been committed   or  a  person’s  involvement  is  prima  facie  established,  but  a   direction to CBI to investigate whether any person has committed   an offence or not cannot be legally given.  Such a direction would   be  contrary  to  the  concept  and  philosophy  of  “LIFE”  and   “LIBERTY”  guaranteed  to  a  person  under  Article  21  of  the   Constitution.   This direction is in complete negation of various   decisions of this Court in which the concept of “LIFE” has been   explained in a manner which has infused “LIFE” into the letters of   Article 21.”

142. It could be perhaps argued that the misfeasance on the part of the  

then Chief Minister and the Minister of State amounts to a criminal misconduct  

also under Section 13 (1) (d) of the Prevention of Corruption Act, 1988.  In the  

present case however, there is neither any such reference to this section nor any  

prima facie finding in the impugned judgment rendered way back in March 1999.  

In the circumstances in view of the proposition of law enunciated by a larger  

bench in the above case it is difficult to sustain the direction to make appropriate  

investigations  through an  impartial  agency,  and if  satisfied  that  any  criminal  

offence has been committed by the aforesaid respondents in the discharge of  

their duties, to take action as is warranted in law.

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Epilogue Approach Towards the Planning Process

143. The  significance  of  planning  in  a  developing  country  cannot  be  

understated.  After years of foreign rule when we became independent, leaders  

of free India realized that for advancement of our society and for an orderly  

progress, we had to make a planned effort.  Infact, even prior to independence  

the leaders of the freedom struggle had applied their mind to this aspect.  The  

leaders of Indian Freedom Movement and particularly Pandit Jawaharlal Nehru,  

our first Prime Minister always emphasised democratic planning as a method of  

nation building and economic and social upliftment of Indian society.  In March,  

1931, the Indian National Congress at its Karachi Session passed a resolution to  

the effect that the State shall take steps to secure that ownership and control of  

the material resources of the community are so distributed as best to subserve  

the common good.   Pandit  Nehru drafted  this  resolution in  consultation with  

Gandhiji and described it as a very short step in a socialist direction.  In 1938,  

the  National  Planning  Committee  of  the  Congress  was  set  up  under  the  

Chairmanship of Pandit Nehru who has been aptly described as “the Architect  

of democratic planning in India”. The Economic Programme Committee of  

the Congress under his Chairmanship made a recommendation of setting up a  

permanent Planning Commission in 1947-48.   

144. Shri  H.K.  Paranjape,  (1924-1993)  an  eminent  Economist  and  a  

former Member of Monopolies and Restrictive Trade Practices Commission and  

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former Chairman of Railway Tariff Committee, in his monograph  “Jawaharlal   

Nehru  and  the  Planning  Commission” (published  by  Indian  Institute  of  

Public Administration in September, 1964) notes that Nehru linked up the work  

of  Planning Commission directly  to the Fundamental  Rights  and the Directive  

Principles enunciated in the Constitution.  Nehru always wanted to make sure  

that  the  objectives  of  the  Planning  Commission  were  well  defined  and  well  

understood.  In this article, the author further records as follows:-

“When the National Development Council was discussing   the  Draft  Outline  of  the  Third  Plan  in  September,  1960,  he   emphasized the importance of remembering “what our objectives   were and not to lose ourselves in the forest of details that a Plan   had to  deal  with.   Because,  always  when one considered  the   detail, one must look back on the main thing, how far it fitted in   with the main issue; otherwise, it was out of place”.   

Nehru believed in participation of different sections of society in framing of the  

Plan.  The emphasis has always been amongst others to put land to the best use  

from the point of the requirements of our society, since land is a scarce resource  

and it has to be used for the optimum benefit of the society

145. As stated above,  we adopted the model  of  democratic  planning  

which  involves  the  participation  of  the  citizens,  planners,  administrators,  

Municipal bodies and the Government as is also seen throughout the MRTP Act.  

Thus when it comes to the Development Plan for a city, at the initial stage itself   

there is the consideration of the present and future requirements of the city.  

Suggestions  and  objections  of  the  citizens  are  invited  with  respect  to  the  

proposed plan,  and then the planners apply  their  mind to arrive at  the plan  

which is prepared after a scientific study, and which will be implemented during  

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the next 10 to 20 years as laid down under Section 38 of the MRTP Act.  The  

plan is prepared after going through the entire gamut under Sections 21 to 30 of  

the  Act,  and  then  only  the  sanction  is  obtained  thereto  from  the  State  

Government.  That is why the powers to modify the provisions of the plan are  

restricted as noted earlier.  If the plan is to be tinkered for the benefit of the  

interested persons, or for those who can approach the persons in authority, then  

there is no use in having a planned development.  Therefore, Section 37 which  

permits the minor modifications provides that even that should not result into  

changing the character of the development plan, prior whereto also a notice in  

the gazette is required to be issued to invite suggestions and objections.  Where  

the modification is of a substantial nature, then the procedure under Section 29  

of  the Act  requiring  a  notice  in  the local  newspapers  inviting  objections  and  

suggestions  from  the  citizens  is  to  be  resorted  to.   Even  the  deletion  of  

reservation under Section 50 is at the instance of the appropriate authority only  

when it does not want the land for the designated purpose.  

146. The idea is that once the plan is formulated, one has to implement  

it  as it  is,  and it  is  only in the rarest of the rare cases that you can depart  

therefrom.  There is no exclusive power given to the State Government, or to the  

planning  authority,  or  to  the  Chief  Minister  to  bring  about  any  modification,  

deletion or de-reservation, and certainly not by a resort to any of the D.C. Rules.  

All these constituents of the planning process have to follow the mandate under  

Section 37 or 22A as the case may be if any modification becomes necessary.  

That is why this Court observed in paragraph 45 of  Chairman, Indore Vikas  

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Prodhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors. reported in  

2007 (8) SCC 705 as follows:-

“45.  Town  and  country  planning  involving  land   development of the cities which are sought  to  be  achieved  through  the  process  of  land  use,  zoning  plan  and  regulating   building  activities  must  receive due attention  of  all  concerned.   We are furthermore not oblivious of the fact that such planning  involving  highly  complex  cities  depends upon scientific   research, study and experience and, thus, deserves due   reverence.

(emphasis supplied)

Role of Municipalities

147. The  municipalities  which  are  the  planning  authorities  for  the  

purpose of bringing about the orderly development in the municipal areas, are  

given a place of pride in this entire process.  They are expected to render wide  

ranging functions which are now enumerated in the constitution. They are now  

given  a  status  under  Part  IX  A  of  the  Constitution  introduced  by  the  74th  

Amendment  w.e.f.  1.6.1993.   Article  243W  lays  down  the  powers  of  the  

Municipalities to perform the functions which are listed in the Twelfth Schedule.  

For performing these functions, planning becomes very important. This Twelfth  

Schedule contains the following items:-  

“TWELFTH SCHEDULE [Article 243W]

1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and, commercial purposes. 6. Public health, sanitation conservancy and solid waste management. 7. Fire services.

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8. Urban forestry, protection of the environment and promotion of   ecological aspects.

9. Safeguarding the interests of weaker sections of society, including  the handicapped and mentally retarded.

10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens,  

playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials  and burial  grounds;  cremations,  cremation  grounds and   

electric crematoriums. 15. Cattle ponds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops   

and public conveniences. 18. Regulation of slaughter houses and tanneries.”

The primary powers of the Municipal Corporations in Maharashtra such as PMC  

(excluding some Municipal Corporations which have their separate enactments)  

and  of  the  Standing  Committees  of  the  Corporations  are  enumerated  in  the  

BPMC Act.  Coupled with those powers, the Municipal Corporations have their  

powers under MRTP Act.  These are the statutory powers, and they cannot be  

bypassed.  

The Responsibility of the Municipal Commissioner and the Senior  

Government Officers

148. The Municipal Commissioner is the Chief Executive of the Municipal  

Corporation.  It is his responsibility to act in accordance with these laws and to  

protect the interest of the Corporation.  The Commissioner is expected to place  

the complete and correct facts before the Government when any such occasion  

arises, and stand by the correct legal position.  That is what is expected of the  

senior administrative officers like him. That is why they are given appropriate  

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protection under the law.  In this behalf, it is worthwhile to refer to the speech of  

Sardar Vallabhbhai Patel,  the first Home Minister of independent India, made  

during the Constituent Assembly Debates, where he spoke about the need of the  

senior secretaries giving their honest opinions which may not be to the liking of  

the Minister.  While speaking about the safeguards for the Members of Indian  

Civil Service (now Indian Administrative Service), he said-  

“…To-day, my Secretary can write a note opposed to my   views.  I have given that freedom to all my Secretaries.  I have   told them ‘if you do not give your honest opinion for fear that it   will displease your Minister, please then you had better go.  I will   bring another Secretary.’ I will never be displeased over a frank   expression of opinion. That is what the Britishers were doing with   the Britishers.  We are now sharing the responsibility.  You have   agreed to share responsibility.  Many of them with whom I have   worked, I have no hesitation in saying that they are patriotic, as   loyal and as sincere as myself.”

(Ref: Constituent Assembly Debates. Vol.10 p. 50)

Now unfortunately, we have a situation where the senior officers are changing  

their position looking to the way the wind is blowing.

Expectations from the Political Executive

149. Same are the expectations from the political executive viz. that it  

must  be above board,  and must  act  in  accordance with  the law and not  in  

furtherance of the interest of a relative.  However, as the time has passed, these  

expectations are belied. That is why in the case of Shri Shivajirao Nilangekar  

(supra) this Court had to lament in paragraph 51 of the judgment as follows:-

“51. This Court cannot be oblivious that there has been a   steady decline of  public  standards or  public  morals  and public   morale. It is necessary to cleanse public life in this country along   with  or  even  before  cleaning  the  physical  atmosphere.  The   

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pollution in our values and standards in (sic is) an equally grave  menace  as  the  pollution  of  the  environment.  Where  such   situations cry out, the courts should not and cannot remain mute   and dumb.”  

150. People  of  a  state  look  up to  the  Chief  Minister  and those who  

occupy the high positions in the Government and the Administration for redressal  

of their grievances.  Citizens are facing so many problems and it is expected of  

those in such positions to resolve them.  Children are particularly facing serious  

problems concerning facilities for their education and sports, quality of teaching,  

their health and nutrition.  It is the duty of those in high positions to ensure that  

their conduct should not let down the people of the country, and particularly the  

younger  generation.  The  ministers,  corporators  and  the  administrators  must  

zealously guard the spaces reserved for public amenities from the preying hands  

of  the  builders.   What  will  happen,  if  the  protectors  themselves  become  

poachers?  Their decisions and conduct must be above board.  Institutional trust  

is of utmost importance.  In the case of Bangalore Medical Trust (supra) this  

court observed in paragraph 45 of its judgment that “the directions of the Chief  

Minister, the apex public functionary of the State, was in breach of public trust,  

more  like  a  person  dealing  with  his  private  property  than  discharging  his  

obligation as head of the State administration in accordance with law and rules”.  

Same is the case in the present matter where Shri Manohar Joshi, the then Chief  

Minister and Shri Ravindra Mane, the Minister of State have failed in this test,  

and in discharge of their duties.  Nay, they have let down the people of the city  

and the state, and the children.  

 Importance of the spaces for public amenities

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151. As we have seen, the MRTP Act gives a place of prominence to the  

spaces meant for public amenities.  An appropriately planned city requires good  

roads,  parks,  playgrounds,  markets,  primary  and  secondary  schools,  clinics,  

dispensaries and hospitals and sewerage facilities amongst other public amenities  

which are essential for a good civic life.  If all the spaces in the cities are covered  

only by the construction for residential houses, the cities will become concrete  

jungles which is what they have started becoming.  That is how there is need to  

protect the spaces meant for public amenities which cannot be sacrificed for the  

greed of a few landowners and builders to make more money on the ground of  

creating large number of houses.  The MRTP Act does give importance to the  

spaces reserved for public  amenities,  and makes the deletion thereof difficult  

after the planning process is gone through, and the plan is finalized.  Similar are  

the provisions in different State Acts.  Yet, as we have seen from the earlier  

judgments concerning the public amenities in Bangalore (Bangalore Medical  

Trust (supra) and Lucknow (M.I Builders Pvt.  Ltd.  (supra),  and now as is  

seen  in  this  case  in  Pune,  the  spaces  for  the  public  amenities  are  under  a  

systematic  attack  and are  shrinking all  over  the  cities  in  India,  only  for  the  

benefit of the landowners and the builders. Time has therefore come to take a  

serious  stock  of  the  situation.  Undoubtedly,  the  competing  interest  of  the  

landowner is also to be taken into account, but that is already done when the  

plan is finalized, and the landowner is compensated as per the law.  Ultimately  

when the land is reserved for a public purpose after following the due process of  

law, the interest of the individual must yield to the public interest.   

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152. As far as the MRTP Act is concerned, as we have noted earlier,  

there is a complete mechanism for the protection of the spaces meant for public  

amenities. We have seen the definition of substantial modification, and when the  

reservation  for  a  public  amenity  on  a  plot  of  land  is  sought  to  be  deleted  

completely, it would surely be a case of substantial modification, and not a minor  

modification.  In that case what is  required is to follow the procedure under  

Section  29 of  the Act,  to  publish  a  notice  in  local  newspapers  also,  inviting  

objections and suggestions within sixty days.  The Government and the Municipal  

Corporations are trustees of the citizens for the purposes of retention of the plots  

meant for public  amenities.   As the Act has indicated, the citizens are vitally  

concerned with the retention of the public amenities, and, therefore deletion or  

modification should be resorted to only in the rarest of rare case, and after fully  

examining as to  why the concerned plot  was originally  reserved for a public  

amenity, and as to how its deletion is necessary.  Otherwise it will mean that we  

are paying no respect to the efforts put in by the original planners who have  

drafted the plan, as per the requirements of the city, and which plan has been  

finalized after following the detailed procedures as laid down by the law.  

Suggested safeguards for the future

153. Having noted as to what has happened in the present matter, in  

our view it is necessary that we should lay down the necessary safeguards for  

the future so that such kind of gross deletions do not occur in the future, and the  

provisions of the Act are strictly implemented in tune with the spirit behind.   

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(i) Therefore,  when  the  gazette  notification  is  published,  and  the  public  

notice in the local newspapers is published under Section 29 (or under Section  

37) it must briefly set out the reasons as to why the particular modification is  

being proposed.  Since Section 29 provides for publishing a notice in the ‘local  

newspapers’, we adopt the methodology of Section 6 (2) of the L.A. Act, and  

expect  that  the  notice  shall  be  published  atleast  in  two  daily  newspapers  

circulating  in  the  locality,  out  of  which  atleast  one  shall  be  in  the  regional  

language.  We expect the notice to be published in the newspapers with wide  

circulation and at prominent place therein.

(ii) Section 29 lays down that after receiving the suggestions and objections,  

the procedure as prescribed in Section 28 is to be followed.  Sub-section (3) of  

Section 28 provides for holding an inquiry thereafter wherein the opportunity of  

being  heard  is  to  be  afforded  by  the  Planning  Committee  (of  the  Planning  

Authority)  to  such  persons  who  have  filed  their  objections  and  made  

suggestions.  The Planning Committee, therefore, shall hold a public inquiry for  

all such persons to get an opportunity of making their submission, and then only  

the Planning Committee should make its report to the Planning Authority.

(iii) One  of  the  reasons  which  is  often  given  for  modification/deletion  of  

reservation is paucity of funds, which was also sought to be raised in the present  

matter by the Municipal Commissioner for unjustified reasons, in as much as the  

compensation amount had already been paid.   However, if  there is any such  

difficulty, the planning authority must call upon the citizens to contribute for the  

project, in the public notice contemplated under Section 29, in as much as these  

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public amenities are meant for them, and there will be many philanthropist or  

corporate bodies or individuals who may come forward and support the public  

project financially.   That was also the approach indicated by this Court in Raju  

S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222].  

Primary Education

154. Primary  education  is  one  of  the  important  responsibilities  to  be  

discharged  by  Municipalities  under  the  Bombay  Primary  Education  Act  1947.  

Again, to state the reality, even after sixty years after the promulgation of the  

Constitution, we have not been able to attain full literacy. Of all the different  

areas  of  education,  primary  education  is  suffering  the  most.   When  the  

Constitution was promulgated, a Directive Principle was laid down in Article 45  

which states that the State shall endeavour to provide, within the period of ten  

years  from the  commencement  of  the  Constitution,  for  free  and  compulsory  

education for all children until they complete the age of fourteen years. This has  

not been achieved yet.  The 86th Amendment to the Constitution effected in the  

year 2002 deleted this Article 45, and substituted it with new Article 45 which  

lays down that the State shall endeavour to provide early childhood care and  

education  for  all  children  until  they  complete  the  age  of  six  years.  The  

amendment has made Right to Education a Fundamental Right under Article 21A.  

This Article lays down that the State shall provide free and compulsory education  

to all children of the age of six to fourteen years in such manner as the State  

may, by law, determine.  In the year 2009 we passed the Right of Children to  

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Free and Compulsory Education Act 2009.  All these laws have however not been  

implemented with  the spirit  with  which they ought  to have been.   We have  

several  national  initiatives  in  operation  such  as  the  Sarva  Shiksha  Abhiyan,  

District Primary Education Programme, and the Universal Elementary Education  

Programme to name a few.  However, the statistical data shows that we are still  

far away from achieving the goal of full literacy.   

155. Nobel laureate Shri Amartya Sen commented on our tardy progress  

in the field of basic education in his Article ‘The Urgency of Basic Education’ in  

the seminar  “Right to Education-Actions Now” held at New Delhi on 19.12.2007  

as follows:-

“India  has  been  especially  disadvantaged  in  basic   education, and this is one of our major challenges today.  When   the British left their Indian empire, only 12 per cent of the India   population  was  literate.   That  was  terrible  enough,  but  our   progress  since  independence  has  also  been  quite  slow.   This   contrasts  with  our  rapid  political  development  into  the  first   developing  country  in  the  world  to  have  a  functioning   democracy.”

The story for Pune city is not quite different.   Since the impugned development  

permission given by the Municipal Corporation was on the basis of no objection  

of the Chief Minister dated 21.8.1996, we may refer to the Educational Statistics  

of Pune city, at that time.  As per the Census of India 1991, the population of  

Pune city was 24,85,014, out of which 17,14,273 were the literate persons which  

comes to just above 2/3 of the population.  The percentage of literacy has gone  

up thereafter, but still we are far away from achieving full literacy and from the  

goal of providing quality education and facilities at the primary level.   

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156. There  is  a  serious  problem  of  children  dropping  out  from  the  

primary schools.  There are wide ranging factors which affect the education of  

the children at a tender age, such as absence of trained teachers having the  

proper  understanding  of  child  psychology,  ill-health,  and  mal-nutrition.   The  

infrastructural facilities are often very inadequate.  Large number of children are  

cramped into small classrooms and there is absence of any playground attached  

with the school. This requires adequate spaces for the primary schools.  Even in  

the so called higher middle class areas in large cities like Pune, there are hardly  

any open spaces within the housing societies and, therefore, adequate space for  

the playgrounds of the primary schools is of utmost importance.  Having noted  

this scenario and the necessity of spaces for primary schools in urban areas, it is  

rather unfortunate that the then Chief Minister who claims to be an educationist  

took interest in releasing a plot duly reserved and acquired for a primary school  

only for the benefit of his son-in-law.  It also gives a dismal picture of his deputy,  

the Minister of State acting to please his superior, and so also of the Municipal  

Commissioner ignoring his statutory responsibilities.  

Operative order with respect to the disputed buildings  

157. We have held the direction given by the State Government for the  

deletion  of  reservation  on  Final  Plot  No.110,  and  the  commencement  and  

occupation certificates issued by the Pune Municipal Corporation in favour of the  

developer  were  in  complete  subversion  of  the  statutory  requirements  of  the  

MRTP Act.  The development permission was wholly illegal and unjustified.  As  

far as the building meant for the tenants is concerned, the developer as well as  

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PMC have indicated that they have no objection to the building being retained.  

As far as the ten storied building meant for the private sale is concerned, the  

developer had  offered to hand over half the number of floors to PMC, provided  

it  permits  the  remaining  floors  to  be  retained  by  the  developer.   PMC  has  

rejected that offer since the plot was reserved for a primary school.  The building  

must therefore be either demolished or put to a permissible use.  The illegal  

development carried out by the developer has resulted into a legitimate primary  

school not coming up on the disputed plot of land.  Thousands of children would  

have attended the school on this plot during last 15 years.  The loss suffered by  

the children and the cause of education is difficult to assess in terms of money,  

and in a way could be considered to be far more than the cost of construction of   

this building.  Removal of this building is however not going to be very easy.  It   

will  cause serious nuisance to the occupants of the adjoining buildings due to  

noise and air pollution.  The citizens may as well initiate actions against the PMC  

for appropriate reliefs.  It is also possible that the developer may not be able to  

remove the disputed building within a specified time, in which case the PMC will  

have to incur the expenditure on removal.  It will,  therefore, be open to the  

developer to redeem himself by offering the entire building to PMC for being  

used as a primary school or for the earmarked purpose, free of cost.  If he is so  

inclined, he may inform PMC that he is giving up his claim on this building also in  

favour of PMC.    

158. The High Court has not specified the time for taking the necessary  

steps in this behalf.  Hence, for the sake of clarity, we direct the developer to  

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inform the PMC within two weeks from today whether he is giving up the claim  

on the ten storied building named ‘Sundew Apartments’ apart from the tenants’  

building in favour of PMC, failing which PMC will issue a notice to the developer  

within two weeks thereafter, calling upon him to furnish particulars to PMC within  

two weeks from the receipt of the notice, as to in what manner and time frame  

he proposes to demolish this ten storied building.   In the event the developer  

declines or fails to do so, or does not respond within the specified period, or if  

PMC forms an impression after receiving his reply that the developer is incapable  

of removing the building in reasonably short time, the PMC will go ahead and  

demolish the same.  In either case the decision of the City Engineer of PMC with  

respect to the manner of removal of the building and disposal of the debris shall  

be final.

159. As far as the ownership of the plot  is  concerned, the same will  

abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994  

which will be decided in accordance with law.  The old tenants will continue to  

occupy the building meant for the tenants.

160. The PMC and the State Government have fairly changed/reviewed  

their  legal  position in this Court,  and defended their original  stand about the  

illegality of the construction. We therefore, absolve both of them from paying  

costs to the original petitioners. The order with respect to payment of cost of Rs.  

10,000/- against the then Chief Minister and the Minister of State to each of the  

original petitioners however remains.  Over and above we add Rs. 15,000/- for  

each of them to pay to the two petitioners separately towards the cost of these  

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appeals in this Court.  Thus, the then Chief Minister and the Minister of State  

shall each pay Rs. 25,000/- to the two petitioners separately.

161. The spaces  for  public  amenities  such  as  roads,  playgrounds,  

markets,  water  supply  and  sewerage  facilities,  hospitals  and  particularly  

educational  institutions  are  essential  for  a  decent  urban  life.   The  planning  

process  therefore  assumes  significance  in  this  behalf.   The  parcels  of  land  

reserved for public amenities under the urban plans cannot be permitted to be  

tinkered with.   The greed for  making more  money is  leading to  all  sorts  of  

construction for housing in prime city areas usurping the lands meant for public  

amenities wherever possible and in utter disregard for the quality of life.  Large  

number of areas in big cities have already become concrete jungles bereft of  

adequate public amenities.  It is therefore, that we have laid down the guidelines  

in this behalf which flow from the scheme of the MRTP Act itself so that this  

menace of grabbing public spaces for private ends stops completely.  We are  

also clear that any unauthorised construction particularly on the lands meant for  

public  amenities  must  be  removed forthwith.   We expect  the guidelines  laid  

down in this behalf to be followed scrupulously.

The conclusions in nutshell and the consequent order

162. In the circumstances we conclude and pass the following order –

(i)  We hold that the direction given by the Government of Maharashtra for  

the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the  

consequent  Commencement  and  Occupation  certificates  issued  by  the  Pune  

Municipal  Corporation  (PMC)  in  favour  of  the  developer  were  in  complete  

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subversion of  the statutory  requirements  of  the MRTP Act.  The development  

permission was wholly illegal and unjustified.

(ii) The  direction  of  the  High  Court  in  the  impugned  judgment  dated  

6/15.3.1999 in  Writ  Petition  Nos.  4433 and 4434/1998 for  demolition  of  the  

concerned building was fully legal and justified.

(iii) The  contention  of  the  landowner  that  his  right  of  development  for  

residential purposes on the concerned plot under the erstwhile Town Planning  

scheme subsisted in spite of coming into force of Development Plan reserving  

the plot for a primary school, is liable to be rejected.   

(iv) The  acquisition  of  the  concerned  plot  of  land  was  complete  with  the  

declaration under  Section 126 of the MRTP Act  read with Section 6 of  Land  

Acquisition Act and the same is valid and legal.  

(v) The order passed by the High Court directing the Municipal Corporation to  

move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore  

necessary. The High Court is expected to decide the revived First Appeal at the  

earliest and preferably within four months hereafter in the light of the law and  

the directions given in this judgment.

(vi) The developer shall inform the PMC whether he is giving up the claim over  

the construction of the ten storied building (named ‘Sundew Apartments’) apart  

from the tenants’ building in favour of PMC, failing which either the developer or  

the  PMC  shall  take  steps  for  demolition  of  the  disputed  building  (Sundew  

Apartments) as per the time frame laid down in this judgment.

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(vii) The former occupants of F.P No. 110 will continue to reside in the building  

constructed for the tenants on the terms stated in the judgment.

(viii) The corporation will not be required to pay any amount to the developer  

for the tenants’ building constructed by him, nor for the ten storied building in  

the event he gives up his claim over it in favour of PMC.  

(ix) The strictures passed by the High Court against the then Chief Minister of  

Maharashtra Shri Manohar Joshi and the then Minister of State Shri Ravindra  

Mane are maintained.  The prayer to expunge these remarks is rejected. The  

remarks against the Municipal Commissioner are however deleted.

(x) The order directing criminal investigation and thereafter further action as  

warranted in law, is however deleted in view of the judgment of this Court in the  

case of Common Cause A Registered Society Vs. Union of India reported  

in 1999 (6) SCC 667

(xi) The then Chief Minister and the then Minister of State shall each pay cost  

of Rs. 15,000/- to each of the two petitioners in the High Court towards these  

ten appeals, over and above the cost of Rs. 10,000/- awarded by the High Court   

in the writ petitions payable by each of them to the two writ petitioners.     

(xii) The State Government and the Planning authorities under the MRTP Act  

shall hereafter scrupulously follow the directions and the suggested safeguards  

with respect to the spaces meant for public amenities.  

All the appeals stand disposed of as above.

…..……………………..J. (  R.V. Raveendran )

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…………………………..J.  ( H.L. Gokhale  )

New Delhi Dated:  October 12, 2011.

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