REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2047 OF 2007

MIG CRICKET CLUB    …Appellant  

VERSUS

ABHINAV SAHAKAR EDUCATION SOCIETY & ORS. …Respondents  

WITH  

CONTEMPT PETITION (C) NO.43 OF 2007

JUDGMENT  

CHANDRAMAULI KR. PRASAD,J.

CIVIL APPEAL NO.2047 OF 2007:

1. Respondent  No.  3,  MIG  Cricket  Club  has  

preferred this appeal by special leave, aggrieved  

by the judgment of the Division Bench of the Bombay  

High Court dated 5th of September, 2005 passed in  

Writ  Petition  No.  1561  of  1992  whereby  it  had  

allowed  the  writ  petition  and   quashed     the

notification dated 24th of April, 1992, published  

in  the  Gazette  on  7th of  May,  1992  and  further  

directed the respondents of the writ petition to  

restore  the  reservation  of  plot  for  “school  and  

cultural centre”.

2. According to the writ petitioner – Respondent  

No. 1 Abhinav Sahkar Education Society, a Society  

registered  under  the  Societies  Registration  Act,  

1860  (hereinafter  referred  to  as  the  “writ  

petitioner”) it was allotted a portion  of plot of  

land admeasuring 7224 sq. yards, bearing Survey No.  

341 situated at MIG Colony, Gandhi Nagar, Bandra  

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

Maharashtra Housing and Area Development Authority  

(hereinafter referred to as “MHADA”) and Respondent  

No. 5, Bombay Housing and Area Development Board  

(hereinafter  referred  to  as  “BHADB”)  with  the  

consent of Respondent No. 3, Municipal Corporation  

of Greater Bombay (hereinafter referred to as the  

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“Corporation”) under a resolution of February, 1965  

granted lease for a period of 99 years to the writ  

petitioner  on  a  premium  equivalent  to  the  price  

fixed and payable annually by way of installments.  

According  to  the  writ  petitioner,  however,  on  

measurement of the plot, the area was found to be  

7301.25 sq. yards and when it proposed to construct  

a school building thereon, it came to its notice  

that the area in question has been reserved for a  

playground  in  the  draft  development  plan.   Writ  

Petitioner brought this fact to the notice of MHADA  

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

answer  thereto  the  writ  petitioner  Society  was  

asked  to  get  the  user  of  the  land  changed  in  

accordance with law.  Meanwhile, according to the  

writ petitioner, the Maharashtra Regional and Town  

Planning Act, 1966 (hereinafter referred to as the  

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

1966.   

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3. Further case of the writ petitioner is that by  

letter dated 15th of November, 1978 the Secretary to  

the Government of Maharashtra in the Department of  

Housing and the Chief Executive Officer and Vice-

President of MHADA in a letter addressed to the  

Secretary of Urban Development Department requested  

for  modification  of  the  draft  development  plan  

showing “school purpose” for the user of the said  

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

Senior  Town  Planner  of  the  Bombay  Metropolitan  

Regional  Development  Authority  directed  the  writ  

petitioner to furnish certain details and plans.  

According to the writ petitioner he duly complied  

with the direction.  It has been further averred  

that  by  letter  dated  12th of  November,  1979  

addressed to the Personal Assistant to the Minister  

for Education, his intervention was sought for the  

necessary change in the user of the land for the  

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

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1983, the Under Secretary to the Urban Development  

Department  of  the  State  Government  informed  the  

writ petitioner that instruction has been issued to  

the Corporation for change of the user of the plot  

in question for school purposes.  In February 1984,  

according to the writ petitioner, the Corporation  

passed a resolution sanctioning user of the said  

plot for the purpose of a school.  Ultimately in  

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

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

to  be  issued  and  published  in  the  Government  

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

notification  the  land  admeasuring  6103.33  sq.  

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

from the site reserved for the playground and the  

land so released was earmarked for the “school and  

cultural  centre”  in  the  development  plan  of  the  

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

also  confirmed  to  the  writ  petitioner  by  the

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Executive Engineer, Town Planning (Division Plan)  

by the Corporation by letter dated 15th of    April,  

1985.

4. It is the allegation of the writ petitioner  

that during the period 1985-1986 it came to its  

notice that Respondent No. 3 of the writ petition  

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

also approached the State Government for change of  

the user of the said plot for “cricket playground”.  

It is the case of the writ petitioner that attempts  

were made to convince it to shift the school to  

another plot as the plot in question was required  

by the MIG Cricket Club (hereinafter referred to as  

“the Club”) for its playground.  Petitioner did not  

yield to the pressure and by letter dated 10th of  

November,  1986  sought  permission  to  erect  a  

compound wall on account of the threats given by  

the  Club.   The  Corporation  by  its  communication  

dated 24th of  November, 1986  gave  the  permission  

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sought  for  and  informed  the  writ  petitioner  to  

submit development plan to the State Government.  

According to the writ petitioner, the Corporation  

informed it that in the proposed development plan  

submitted  to  the  Government,  by  mistake  it  has  

shown the plot in question as “cricket club and  

playground”.  In the aforesaid premises petitioner  

was asked to approach the State Government to get  

the mistake rectified.  As directed, the petitioner  

by  letter  dated  8th of  November,  1986  approached  

the  State  Government  for  rectification  of  the  

mistake  and  the  same  was  acknowledged  by  the  

Corporation stating that appropriate action would  

be taken in this regard.  However, to its surprise  

the petitioner came across the notification dated  

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

of May, 1992 which revealed that State Government  

in exercise of the powers conferred under Section  

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

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in  question  and  instead  of  land  being  shown  

reserved for “school and cultural centre” it was  

shown as a “playground”.   

5. Aggrieved  by  the  same,  the  petitioner  

preferred the writ petition inter alia  challenging  

the  aforesaid  notification  and  further  for  a  

direction to the respondents of the writ petition  

to restore the reservation of plot for “school and  

cultural centre”.

6. Respondents in the writ petition including the  

Club,  the  appellant  herein,  contested  the  writ  

petition  and  according  to  them  the  notification  

dated 10th of April, 1985 was a minor modification  

in  relation  to  a  specific  plot  of  land  of  a  

development plan sanctioned by the State Government  

before the commencement of the Act.  It was further  

pointed out that the draft development plan for the  

entire  area  was  already prepared on 16th October,  

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1984 and after hearing the necessary objections and  

suggestion the revised draft development plan was  

submitted on 29th of April, 1986 by the Corporation  

with  necessary  modification  to  the  State  

Government. The same was finalized and the impugned  

notification dated 24th of April, 1992 was issued  

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

in question was shown as reserved for the purpose  

of “playground”.  It has further been averred by  

the respondents that the interest of the petitioner  

was also safeguarded by reserving a plot towards  

the eastern side of the plot in question for the  

“school  and  cultural  centre”.   According  to  the  

respondents such finalization of the plan was done  

after hearing all the interested parties.  It is  

the allegation of the respondents that the school  

opened  by  the  petitioner  was  permanently  closed  

since 1990 and on account of the failure on the  

part of the petitioner to pay the premiums payable  

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to MHADA, the allotment in favour of the petitioner  

is  liable  to  be  cancelled.   Respondents  have  

further  averred  that  the  land  in  question  was  

delivered to the Corporation which in turn leased  

the same to the Club since September, 1974.   

7. In view of the pleadings of the parties the  

question which fell for consideration before the  

High Court was whether the notification dated 24th  

of April, 1992 issued in exercise of the powers  

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

complied with the provisions of the Act.   

8. The High Court on appraisal of the materials  

came to the conclusion that the notification dated  

10th of April, 1985 purportedly issued in exercise  

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

fact issued in exercise of the power under Section  

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

observed as follows:

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

As  regards  notification  dated  24th of  April,  

1992 said to have been issued in exercise of the  

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

Court observed that in fact the State Government  

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

In  this  connection,  the  High  Court  observed  as  

follows:

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

April, 1992.”

Ultimately,  the  High  Court  held  that  the  

impugned notification dated 24th of April, 1992 had  

been  issued  without  consideration  of  the  

notification  dated  10th of  April,  1985  which  

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renders the same illegal.  While holding so the  

High Court observed as follows:

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

Accordingly  the  High  Court  allowed  the  writ  

petition,  quashed  the  impugned  notification  and  

granted  the  relief  sought  for  by  the  writ  

petitioner.     

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9. Mr. Shyam Divan, Senior Advocate appearing on  

behalf  of  the  appellant  contends  that  the  High  

Court erred in holding that the notification dated  

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

plan  in  relation  to  the  area  in  question  as  

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

points  out  that  under  Section  35  of  the  Act  a  

development plan sanctioned by the State Government  

before commencement of the Act shall be deemed to  

be final development plan sanctioned under the Act.  

According  to  him,  the  notification   dated  10th  

April, 1985 modified the deemed final development  

plan which was in existence prior to the coming  

into force of the Act. Under the deemed development  

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

was  shown  as  “playground”  and  hence,  the  

modification in the final development plan can be  

done  in  exercise  of  the  power  conferred  under  

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

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the  notification  dated  10th April,  1985,  such  a  

power was exercised which would be apparent from  

the  notification  and  the  site  reserved  for  

“playground”  was  earmarked  for  the  “school  and  

cultural  centre”.   Mr.  Divan  further  points  out  

that the draft development plan submitted on 29th  

April,  1986  was  sanctioned  as  development  plan  

under  Section  31(1)  of  the  Act  by  notification  

dated 24th April, 1992 and the notification itself  

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

the  Act.  According  to  him,  the  High  Court  

erroneously held that this notification, in fact,  

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

and  substance,  according  to  Mr.  Divan,  the  

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

1992 show that it were issued in exercise of the  

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

Act, but the High Court misdirected itself and held  

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

and 37(2) of the Act respectively.

10. Ms.  Vaishali  Thorat,  however,  appearing  on  

behalf  of  Respondent  No.1  submits  that  the  

notification  dated  10th April,  1985  was  a  final  

development plan sanctioned under Section 31(1) of  

the Act and without considering the same it has  

been modified by the impugned notification dated  

24th April,  1992  in  exercise  of  the  power  under  

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

illegal in the eye of law. She further points out  

that  non-consideration  of  the  notification  dated  

10th April,  1985,  while  issuing  the  notification  

dated  24th April,  1992  vitiates  the  impugned  

notification.

11.  Rival submissions necessitate examination of  

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

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is relevant for the purpose, reads as follows:

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

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

From  a  plain  reading  of  the  aforesaid  

provision, it is evident that the Development plan  

sanctioned  by  the  State  Government  before  the  

commencement of the Act, shall be deemed to be a  

final Development plan sanctioned under the Act.  

Making of Development plan requires consideration  

of various inputs and for that several bodies have  

to be consulted and various steps as provided in  

the  Act  are  required  to  be  taken.  Naturally  it  

would take some time. A town cannot exist without a  

Development plan, otherwise it would lead to chaos.  

No Development plan was made under the Act which  

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

the legislature created a legal fiction by enacting  

Section 35 of the Act. It provided for assuming a  

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

was,  in  fact,  not  made  in  accordance  with  the  

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

that when a legal fiction is created it shall be  

given  full  effect.   Generally  legal  fiction  is  

created to advance public policy and preserve the  

rights  of  certain  individuals  and  institutions.  

Legal fiction tends to treat an imaginary state of  

affairs as real and entails the natural corollaries  

of that state of affairs. Hence, the Development  

plan, existing prior to the coming into force of  

the  Act,  shall  be  deemed  to  be  a  sanctioned  

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

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

for  sanction  of  the  draft  Development  plan,  the  

same reads as follows:

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“  31.  Sanction  to  draft  Development  plan.

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

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

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

The aforesaid provision confers power on the  

State Government to sanction the draft Development  

plan  submitted  to  it  for  the  whole  area  or  

separately  for  any  part  thereof  either  without  

modification or subject to such modifications as it  

may consider proper. Therefore, Section 31 of the  

Act operates in the field of the power of the State  

Government to sanction a draft Development plan.  

Under the scheme of the Act, a minor modification  

of the Development plan sanctioned under Section  

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

the Act. It reads as follows:

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“37.  Minor  modification  of  final  Development plan.

(1)   xx   xx      xx

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

From a plain reading of the aforesaid provision  

it is evident that the State Government has been  

conferred with the power to make minor modification  

to  the  final  Development  plan.  Thus,  under  the  

scheme of the Act, a Development plan sanctioned by  

the State Government prior to the commencement of  

the  Act,  shall  be  deemed  to  be  the  final  

Development  plan  and   there  can  be  minor  

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modification in such Development plan by the State  

Government  in  exercise  of  power  conferred  under  

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

Development plan is provided under Section 31(1) of  

the Act.  

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

aforesaid,  we  are  of  the  opinion  that  the  

Development plan sanctioned by the State Government  

before commencement of the Act, has become final  

Development  plan  under  the  Act.  The  Development  

plan existing prior to the commencement of the Act  

shows that the area in question was reserved for  

“playground”  which  was  modified  to  “school  and  

cultural  society”  in  exercise  of  power  under  

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

“school and cultural centre” by notification dated  

25th April,  1985.  Such  a  course  was  permissible  

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

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the Corporation informed it that in the proposed  

Development plan  the  area  in  question  has been  

shown  as  “cricket  club  and  playground”.  Had  the  

notification dated 25th April, 1985 been a sanction  

of  final  Development  plan,  the  area  in  question  

ought not to have figured in the draft Development  

plan submitted to the State Government. The draft  

plan  submitted  to  the  State  Government  was  

considered by it and the Development plan dated 24th  

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

is not the modification of the Development plan but  

sanction of the same in exercise of the power under  

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

Court  misdirected  itself  by  considering  the  

notification  dated  10th April,  1985  to  be  the  

sanction  of  the  Development  plan  under  Section  

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

April, 1992 to be the modification of the final  

Development  plan  which  has  rendered  its  order  

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illegal. It is trite that the validity of the order  

does not depend upon the section mentioned in the  

order.  Wrong  provision  mentioned  in  the  order  

itself  does  not  invalidate  the  order,  if  it  is  

found that order could be validly passed under any  

other  provision.  However  in  a  case,  like  the  

present one, contrary to what have been mentioned  

in the notifications the Court cannot say that such  

powers  were  not  exercised  to  render  the  

notification illegal if in fact such power exists.  

14. It is well settled that the user of the  

land is to be decided by the authority empowered to  

take such a decision and this Court in exercise of  

its power of judicial review would not interfere  

with the same unless the change in the user is  

found  to  be  arbitrary.  The  process  involves  

consideration of competing claims and requirements  

of the inhabitants in present and future so as to  

make their lives happy, healthy and comfortable.  

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We are of the opinion that town planning requires  

high degree of expertise and that is best left to  

the  decision  of  State  Government  to  which  the  

advise  of  the  expert  body  is  available.  In  the  

facts of the present case, we find that the power  

has been exercised in accordance with law and there  

is no arbitrariness in the same.

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

impugned judgment of the High Court is set aside.  

However, there shall be no order as to costs.

CONTEMPT PETITION © NO.43 OF 2007:

16. In  view  of  the  order  passed  in  Civil  

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

entertain  the  contempt  petition.  The  Contempt  

Petition stands dismissed.  

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

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

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NEW DELHI, SEPTEMBER 5, 2011.

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