TMI Blog2011 (10) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... e Municipal Corporation, and the same was mala fide. After hearing all concerned, the petitions were allowed, and an order has been passed to cancel the Commencement (of construction) certificates, and Occupation Certificate, and to pull down the concerned building which has been constructed in the meanwhile. The State Government has been directed to initiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar Mane, the then Minister of State for UDD, and the then Pune Municipal Commissioner Shri Ram Nath Jha. Being aggrieved by this order, the present group of appeals have been filed. The tenants, however, contend that if the plot of land is taken over by PMC, they will remain mere tenants as against the ownership rights which were assured to them by the developer and the landlord, and are, therefore, continuing to maintain their appeals. HELD THAT:- Present case is not one where permission was sought for the construction under erstwhile T.P. scheme, or u/s 50 of the MRTP Act. This is a case where the personal relationship of the developer with the Chief Minister was apparently used to obtain permission for construction without following any due process o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat extent? Does the State Government have the power to issue instructions to the Municipal Corporation to act in a particular manner contrary to the Development Plan sanctioned by the State Government, and that too a number of years after the Municipal Corporation having taken the necessary steps in consonance with the plan? Can the State Government instruct a Municipal Corporation to shift the reservation for a public amenity such as a primary school on a plot of land, and also instruct it to grant a development permission for residential purposes thereon without modifying the Development Plan? Could it still be considered as an action following the due process of law merely because a provision of Development Control Rules is relied upon, whether it is applicable or not? Or where the Municipal Corporation is required to take such contrary steps, supposedly on the instructions of the concerned Minister / Chief Minister, for the development of a property for the benefit of his relative, would such instructions amount to interference/mala fide exercise of power? Is it permissible for the landowner and developer to defend the decision of the Government in their favour on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e residences flouting all norms and mandatory legal provisions. They sought to challenge the building permission which was issued by the PMC under the instructions of the State Government, by submitting that these instructions amounted to interference into the lawful exercise of the powers of the Municipal Corporation, and the same was mala fide. After hearing all concerned, the petitions were allowed, and an order has been passed to cancel the Commencement (of construction) certificates, and Occupation Certificate, and to pull down the concerned building which has been constructed in the meanwhile. The State Government has been directed to initiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar Mane, the then Minister of State for UDD, and the then Pune Municipal Commissioner Shri Ram Nath Jha. 3. Being aggrieved by this order, the present group of appeals have been filed: (i) Civil Appeal Nos. 198- 199/ 2000 are filed by the developer Shri Girish Vyas and his proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450 of 2000 is filed by the landowner Dr. Laxmikant Madhav Murudkar (since deceased) to challenge the judgments and the order i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter referred to as 1966 D.P. Plan). Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a garden. The Plan was sanctioned in exercise of the power of 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 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 conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haritable 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 ₹ 1.25 crores, a flat of 1500 sq. feet area and an office space of 500 sq. feet in the building to be developed on F.P. No. 110. The agreement stated that it was being entered into to solve the practical difficulties. Para 7 thereof stated that the developer shall follow the procedure or process of de-reservation of the said property. Para 20 and 21 stated that after de-reservation of the property, the developer agrees to get the clearance under the Urban Land (Ceiling and Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easuring 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hysical 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. 34. On receiving this letter from the Municipal Commissioner, Shri Ghadge once again put up a detailed note and at the end of pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pune Sir, Sub: Development Permission of T.P. Scheme No.1, Final Ploat No.110. Ref: Request Application dated 20/11/95 by Shri Shriram Karandikar to Minister of State for Urban Development for Development in the subject matter. I have been ordered by the State Government to communicate to you the following directives. 1. The Pune Municipal Corporation should recover from the land owner according to the land acquisition law the principal amount paid for acquisition of Final Ploat No.110, Erandwane along with construction, with interest thereon at 12%. 2. S.No.261 Hissa No.1/2 Lohegaon, Pune which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner that an additional amenity was being created in another area. The note further records 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 comple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) no longer requires the designated land for the particular public purpose, and seeks deletion of the reservation thereon. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity 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 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribed under Section 22A of the Act. This Section reads as follows:- 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) reduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 amen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Town Planning scheme is varied to bring it in accord with the Development Plan. As noted earlier that right from 8.5.1979, when the 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; (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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Section 59 (2) will only mean that the legislature has given an elbow room to the plannin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lict. 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. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 noted that the observations in Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. 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. 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 dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder 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. 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 cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 developmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the time being in force where any land included in any plan or scheme as being reserved, allotted or designated for any purpose therein specified or for the purposes of a Planning Authority or Development Authority 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (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 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 Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly 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 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 origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not challenge the acquisition as such. He merely demanded compensation at a rate of ₹ 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 appeal under Section 47 of the MRTP Act. The landowner and the developer h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... probable questions in the assembly. This note dated 22.7.1998 was specifically marked for the Chief Minister. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst 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 chap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en 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 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 lac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved 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 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 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Division Bench has therefore, observed in paragraph 143 of its judgment, that 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 fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rested 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 na ve 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 Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ign 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 Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anged 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 na ve 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roach 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 through ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged. 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 G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows:- 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 includin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds, 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 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 Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reate 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 ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gitimate 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urping 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 subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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