Ashok Gajanan Joshi vs State Of Maharashtra, The ...
2004 Latest Caselaw 382 Bom

JUDGMENT

C.K. Thakker, C.J.

1. The petitioner by invoking Article 226 of the Constitution as pro bono publico has prayed for a writ of mandamus or any other appropriate writ, direction or order for grant of benefits of Development Control Regulations and of incentive additional Floor Space Index ("FSI" for short) to all owners, occupiers and cooperative societies. Other reliefs also have been sought.

2. It is the case of the petitioner that he is a public spirited citizen and has been prosecuting the cause highlighted in the petition since several years. Even in past, he had filed petitions being Writ Petition Nos. 5286 of 1998 and 6290 of 1999. The question raised in the present petition relates to Final Development Plan prepared by Thane Municipal Corporation, respondent No. 3 herein ("Corporation" for short). Respondent No. 1 is the State of Maharashtra and respondent No. 2 is the Secretary of Urban Development Department, Government of Maharashtra. Respondent No. 3 is Municipal Corporation, Thane, and also a "Planning Authority" under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Act"). Certain modifications have been suggested by respondent No. 3 in the Final Development Plan and were sanctioned by the first respondent in accordance with the provisions of the Act. The grievance of the petitioner is that the Final Development Plan sanctioned by the State Government is not in consonance with law, and hence a writ of mandamus is sought by the petitioner directing respondents to act according to law by granting certain benefits under the said Final Development Plan.

3. The grievance of the petitioner is that the modified Regulations which have been brought into force by respondent No. 3 are illegal, unlawful and improper. Firstly, it is contended that the modified Regulations have been brought into force in 1999 but the benefits of the said Regulations have not been granted to buildings which have been demolished prior to 4th October, 1999. The said action is arbitrary, discriminatory and violative of Article 14 of the Constitution. Secondly, the benefit of incentive FSI has been granted to the owners who had put up such construction authorisedly and legally but the similar benefits had not been given to the owners who had made the construction unauthorisedly. Such action is illegal and discriminatory and deserves to be interfered with. Thirdly, FSI has not been calculated correctly and the benefit to which the owners are entitled would be more on correct interpretation of the relevant rules. Finally, the benefit of incentive FSI has been extended in favour of owners of the properties which have been let out and are in actual and physical possession of tenants and not in possession of owners, occupiers or co-operative housing societies. A classification of properties in possession of tenants on the one hand and in possession of owners, occupiers or other persons on the other hand is artificial, irrational and discriminatory without there being any rationale with the object sought to be achieved. Such classification, therefore, must be held arbitrary, unreasonable and violative of Articles 14, 19 and 21 of the Constitution.

4. Notice was issued, pursuant to which the respondents appeared. Affidavits and further affidavits have been filed and the matter had been heard finally.

5. We have heard Mr. A.V. Anturkar, learned counsel for the petitioner, Mr. R.D. Rane, learned Additional Government Pleader, for respondent Nos. 1 and 2 and Mr. R.S. Apte, learned counsel for respondent No. 3.

6. At the outset, it may be stated that Mr. Anturkar, learned counsel for the petitioner, expressly gave up challenge to modified Regulations on the first three grounds. He had not pressed the validity of the Regulations on the ground that the benefits thereunder had not been extended to unauthorized construction as, according to him, the said benefit has been conferred subsequently by the respondents even in respect of unauthorized construction. Similarly, he has not pressed challenge to the Regulations on the ground that the policy decision has not been made applicable to buildings demolished prior to 4th October, 1999 as, according to the learned counsel, by a subsequent Resolution, the said benefit has been conferred even to the owners of buildings who had demolished them prior to 4th October, 1999. Likewise, he had given up the point as to mathematical calculation of FSI. In view of the above concession, we do not deal with those points. We may, however, clarify that we may not be understood to have expressed any opinion on the submissions of the learned counsel for the petitioner that those benefits have been granted by the respondents as urged and submitted by Mr. Anturkar.

7. The only point remains for our consideration and decision thus relates to the grant of benefit of additional FSI as per the modified Regulations and the Government decision to owners, occupiers and co-operative housing societies.

8. It is an admitted fact that the Draft Development Regulations were prepared in 1994 by Respondent No. 3. The Draft Regulations were sent for sanction to the State Government and sanction had been accorded to the said Regulations by the first respondent on 28th April, 1995 and they came into force from 1st June, 1995. The Regulations were applied to proposals for reconstruction/redevelopment schemes undertaken by owners of existing residential premises. Similarly, they were made applicable to buildings destroyed by fire, collapsed or demolished. The third respondent-Corporation, it was stated by the petitioner, did not cater the needs of growing city of Thane which necessitated modifications. Representations were, therefore, made by third respondent-Corporation to the Government seeking modification in Development Regulations. The modification mainly related to permissible FSI and additional FSI in certain cases as an incentive to the owner for making reconstruction/redevelopment. Before the modification under Section 37 of the Act, the Regulations provided that the owner of the building would be entitled to FSI either actually consumed by the existing building or the FSI permissible by the Regulations whichever was more. The Corporation, however, felt that more benefits were needed, keeping in view the progress and development of the City. By following the requirements of law, a modification was submitted by respondent No. 3 for approval by respondent No. 1. No decision, however, was taken on the modification submitted by the third respondent. Petitions were filed by the petitioner and direction was issued to the State Government to take final decision in the matter on modification submitted by respondent No. 3 to respondent No. 1. On 4th October, 1999, the modification was sanctioned by respondent No. l, as submitted by respondent No. 3, and a notification was issued by the State Government. The notification dated 4th October, 1999. is relevant and material for the purpose of controversy raised in the present petition and may, therefore, be reproduced;

"URBAN DEVELOPMENT DEPARTMENT

Mantralaya, Mumbai 400 032, dated 4th October 1099

NOTIFICATION

MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966.

No. TPS. 1297/127/CR-6/97-UD-12.-Whereas the Government in Urban Development No. TPS-1295/CST-222/94/UD-12, dated 28th April, 1995 has sanctioned the Draft Development Control Regulation which has come into force with effect from 1st June 1995 (hereinafter referred to as the said Regulation);

And whereas, the Municipal Corporation of city of Thane (hereinafter referred to as the "said Planning Authority") is of the opinion that the provision of Regulation No. 165 of the Regulation and the corresponding Appendix "R" needs modification so as to give effective implementation to the safety of existing building and to solve the problem of rehousing the tenants of the existing dilapidated buildings as the provisions of regulation No. 165 and Appendix "R" thereunder are inadequate;

And whereas, the said Planning Authority under its letter (Marathi) No. dated 10th March 1997 has informed the Government to reconsider the necessary changes in the contents of Regulation No. 165 and Appendix "R" thereunder;

And whereas, the Government has considered the request of the said Planning Authority and with a view to give relief to the existing dilapidated buildings and the tenants residing therein has under its letter number TPS 1297/127/CR-6/97/UD-12, dated 27th October 1997 directed the said Planning Authority to initiate the proposal of modification to the regulation No. 165 and Appendix "R" thereunder of the said sanctioned Regulations under Section 37 (1) of the said Act and submit the same to the Government for sanction after following the legal procedure;

And whereas, the said Planning Authority has submitted then proposal for sanction after following the necessary legal formalities under Section 37 of the said Act vide letter (Marathi) number dated 25th August 1998;

And whereas, after making necessary enquiries and after consulting the Director of Town Planning Maharashtra State, Pune the Government of Maharashtra State is satisfied that the said proposal of modification is necessary in the public interest and should be sanctioned with certain changes.

Now, therefore, in exercise of the powers conferred by Sub-section (2) of Section 37 of the said Act and all other powers enabling it in that behalf the Government of Maharashtra hereby-

(A) Sanction the said modification, whereby following provision shall be substituted Clause 1 (a) (b) of Appendix "R" of the said regulations as given be low:-

"1(a) These provisions shall be applicable to following proposals:-

(i) Reconstruction/Redevelopment schemes undertaken by the Corporation/owners for the existing authorized residential development, the FSI consumed by the existing authorized building whichever is more. In addition to this 15% additional FSI shall be allowed as an incentive to the owner.

(ii Reconstruction/Redevelopment of buildings destroyed by fire, collapsed, demolished etc. Reconstruction in whole or in part of a building (not being a building wholly occupied by warehousing user) on or before reference date as specified in 1 (c) below and which has ceased to exist in consequence of accidental fire, natural collapse or demolition for the reason of the same having been declared unsafe by or under a lawful order of the Commissioner.

(a) Redevelopment outside congested area shall be allowed with an FSI equivalent to that already authorisedly utilized plus 50% of the permissible FSI or 2.00 whichever is more provided the total FSI of the new structure shall not exceed 3.00.

Redevelopment within the congested area shall be allowed with an FSI equivalent to that already authorisedly utilized plus 50% of the permissible FSI provided that the total FSI of the new structure shall not exceed 3.00

(b) The Committee comprises of Commissioner(TMC), Superintending Engineer, Public Works Department, Thane, Dy. Director, Town Planning, Konkan Division shall be set up and the said committee shall decide the buildings which are dangerous an dilapidated"

(B) Fixes this day to be the date on which the same modification will come into force.

By order and in the name of Governor of Maharashtra.

A.M. ABHYANKAR

Desk Officer."

9. One Wasant Shanket Kelkar approached this Court by filing Writ Petition No. 6970 of 1999 challenging the validity of the notification dated 4th October, 1999 on various grounds. The petition was, however, dismissed on 4th April, 2000 by the Division Bench repelling all the contentions. It was held that the notification was legal and did not suffer from any infirmity, and cannot be held illegal or ultra vires.

10. The learned counsel for the petitioner submitted that the phraseology used in the notification is express, clear and explicit. No doubt, in the Preamble, it recited that the third respondent-Corporation was of the opinion that Regulation 165 needed modification "so as to give effective implementation to the safety of existing building and to solve the problem of rehousing the tenants of the existing dilapidated buildings" as also "with a view to give relief to the existing dilapidated buildings and the tenants residing therein". In the operative part of the notification, however, there was nothing to show that the benefit of additional FSI was restricted to buildings occupied by or in possession of tenants. The action taken and the order passed under Sub-section (2) of Section 37 of the Act as such applied to reconstruction/redevelopment schemes undertaken by owners/ occupiers/co-operative societies of the existing authorized residential development and entitled them to the benefit of additional FSI to the extent indicated in the notification. It is further stated in the notification that it would be applicable to buildings destroyed by fire, collapsed, demolished, etc. There is no whisper in the decision that the benefit of additional FSI was restricted to the owners of the buildings which are in occupation/possession of tenants. It is, therefore, contended that the notification must be read as it is and when it does not state that the benefit is limited to tenanted properties, it is not open either to respondent-State or to the Corporation to restrict its operation to tenanted properties without granting the benefit to owners, occupiers or co-operative housing societies. Such interpretation, therefore, cannot be said to be legal and valid and cannot be accepted.

11. Alternatively, it was contended that if it is assumed for the sake of argument that it was intended by the respondent authorities that the benefit should be extended to tenanted premises as there was acute problem of such premises and with a view to give incentive of additional FSI to tenanted properties, the action must be held illegal and improper. The object of incentive of additional FSI was to ensure that dilapidated buildings should be demolished as otherwise it would be dangerous and may cause harm to owners/occupiers/persons staying therein. If that was the object, there was no doubt whatsoever that such benefit must be given to all persons similarly situated. Keeping in mind the underlying object i.e. demolition of dilapidated or dangerous buildings, classification made between tenanted premises and non-tenanted premises cannot be said to be based on intelligible differentia and cannot be termed as reasonable classification. Moreover, it also cannot be said that such classification, even if it is held to be reasonable, has any rationale to the object sought to be achieved thereby, namely to avoid danger to human life. Such classification, therefore, is hit by Article 14 of the Constitution and the benefit of the notification must be extended to all owners, occupiers and co-operative housing societies having dilapidated or dangerous buildings.

12. Affidavits in reply have been filed by the State authorities as well as by the Corporation. The Deputy Secretary to Government, Urban Development Department of the first respondent in his affidavit dated 5th February, 2003, has stated that the proposal submitted by the third respondent for modification of the sanctioned Development Control Regulations was approved by the Government on 4th October, 1999.

13. He then stated:

"The Government's intention is to grant additional FSI for redevelopment/reconstruction, to give relief to the owners and tenants, therefore, to accommodate the existing tenants in the new buildings. The Government's intention is not to give such benefits to the unauthorized structures. To avoid further complications regarding existence of a structure, whether it was dilapidated, a specific date for implementation is mentioned in the Notification and as per the decision of the committee appointed. Similarly, all the Co-operative Societies functioning under Co-operative Societies Act in which the occupiers are members of the Society. Therefore, it is submitted that no relief can be given to the buildings of the Housing Societies."

14. In a further affidavit dated 5th April, 2003, in paragraph 3, he stated:

"With reference to paragraph 3 of the Affidavit in Rejoinder, I say that the Thane Municipal Corporation is of the opinion that the provision of Regulation No. 165 of the Regulations and the corresponding Appendix-R needs modification so as to give effective implementation to the safety of existing building and to solve the problem of rehousing the tenants of the existing dilapidated building as the provisions of Regulation No. 165 of Appendix-R thereunder. The Planning Authority under its letter No. TMC/D.D.P./Gen-859, dated 10th March, 1997 has informed the Government to reconsider the necessary changes in the contents of Regulation No. 165 and Appendix-R thereunder.

The Government has considered the request of the said Planning Authority and with a view to give relief to the existing dilapidate building and the tenants residing therein has under its letter No. TPS 1297/127/CR-6/97/UD-12, dated 27th October, 1997 (Annexure A1 of the Petition) directed the said Planning authority to initiate the proposal of modifications to the Regulation No. 165 and Appendix-R thereunder of the said sanctioned Regulations under Section 37 (1) of the said Act and submit the same to the Government for sanction after following legal procedure.

In this directive, the Government's intention is clear that the relief can be given only to the tenants building but it is not so mentioned in the directive. In the Notification, dated 4th October, 1999, however, the Government has clearly mentioned such relief to the existing dilapidated buildings and the tenants residing therein.

Further it is stated about the Co-operative Housing Society that the Co-operative Housing Societies being the owner of the building, such Co-operative Housing Society collect Sinking Funds for maintenance of the property. Moreover, the tenement holders are the owners of the flats and it is their own primary responsibility to maintain. Their own house/property. There is, thus, no question of giving the additional F.S.I. for redevelopment.

I further state that after reading the notification in relation with the object, it can be seen that giving benefits of this Notification to Cooperative Housing Societies will be detriment to the spirit and object of the modification."

15. Yet, in another affidavit dated 26th August, 2003, it was stated that the Government had considered the request of the Planning Authority and issued instructions on July 28, 2003 under Section 37 of the Act. It was stated that the intention of the Government was only to give the benefit to "authorized tenanted property" and not to cooperative housing society. The instructions issued on July 28, 2003 on the request of respondent No. 3 Corporation has been annexed along with the said affidavit by respondent No. 1. The relevant Clause (3) in Marathi and in English read thus;

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ekydh gDdkP;k bekjrh[email protected] vksulZ vlksfl,'[email protected]`gfuekZ.k lkslk;Vh ;kaps bekjrhl /kksdknk;d o eksM+d Ghl vkysY;k bekjrhP;k iuZcka/kxhpk Qk;nk nsuk ;sokj ukgh-

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Sr. No.   Particulars of Points      Government decision
------------------------------------------------------------------------
3.     It is not clearly             These benefit of the regulations
       mentioned that whether        for dilapidated buildings are not
       the said regulations are      applicable to Ownership
       applicable to the             Buildings/Flat Owners Association/
       buildings owned by the        Co-operative Societies
      Apartment Owners Assoctions
       (Society)       
------------------------------------------------------------------------

 

16. In the affidavit in reply of Assistant Director of Town Planning of Thane Municipal Corporation, it was stated that the provisions of Regulation 165 needed modification so as to effectively implement them by solving problems of rehousing tenants of the existing dilapidated buildings. According to the deponent, the intention was to confer benefit to those owners of the buildings which were let out to tenants so that the owners would be encouraged for reconstruction/redevelopment of such buildings.

17. In an affidavit in rejoinder dated 6th March, 2003, the petitioner contended that while issuing directives, the first respondent had not made any discrimination whether the building was privately owned or was owned by co-operative housing society. He also stated that the phrase "dilapidated buildings" included all the buildings with the sole criterion whether it was in a "dilapidated" condition. The term "family" would mean family occupying building, whether such occupation is in the capacity of tenant or in the capacity of owner or occupier. Since the co-operative societies had been functioning under the provisions of the Act in force, occupation of the members of such co-operative societies was legal and lawful. It was, therefore, not open to the respondent No. 1-State or to respondent No. 3-Corporation to deprive similar benefit to the members of co-operative housing societies who are otherwise entitled to the benefit under the notification. When the notification was clear, it was not open to the respondents by mentioning the intention which weighed with the authorities in issuing it. If the order is clear, it cannot be construed or interpreted in the light of explanation subsequently given either by filing affidavit or otherwise.

18. A short question for our consideration, therefore, is whether the action of the respondent-authorities in granting benefit of additional FSI as an incentive only to owners of buildings in occupation of tenants is legal, lawful or reasonable? The contention of the petitioner is that the notification dated 4th October, 1999 does not make distinction between properties occupied by owners on the one hand and the properties occupied by tenants on the other. The notification has to be read as it is. Subsequent explanation or affidavit would not change the nature or character of the benefit conferred on owners, occupiers, co-operative housing societies of buildings in dilapidated or dangerous condition. No doubt, subsequently a change was effected on July 28, 2003 by clarifying that the benefit of incentive FSI would be given to owners of building in possession of tenants. Such change, however, is illegal, unconstitutional and ultra vires Article 14 of the Constitution inasmuch as, it is neither based on intelligible differentia nor it has nexus to the object sought to be achieved thereby.

19. The learned counsel for the respondents, on the other hand, supported the stand taken by them contending that the paramount consideration of issuance of notification was to give benefit of incentive FSI to owners of those buildings who had let out the premises and the properties were in actual possession and occupation of tenants. If incentive of additional FSI is granted, they would reconstruct/redevelop the property. Respondent No. 3, therefore, moved the Government. The Government applied its mind and considered the proposal. In the Preamble of the Notification dated 4th October, 1999, the said fact had been reflected. Though it was not specifically included in the subsequent part of the notification, the validity of the notification had been upheld by the Division Bench of this Court in a well reasoned decision in Writ Petition No. 3498 of 2000. The Division Bench, upholding the notification, observed that the problem of re-housing tenants of existing dilapidated buildings was under active consideration of the Government and keeping in view the problem, incentive of additional FSI had been given by the authorities to owners of tenanted properties which cannot be held illegal. There was pressing need to rehouse tenants who would have been displaced from dilapidated buildings and it could not be achieved unless additional FSI would be given to the owners/ builders/ developers in the form of incentive for redevelopment or reconstruction.

20. It was also submitted that in any case, the position was clarified by a subsequent decision that the benefit would not be given to buildings/flat owners/associations/co-operative housing societies. Such an action can neither be said arbitrary nor discriminatory as the classification between properties occupied by owners and occupied by tenants is reasonable one and based on intelligible differentia. It has also nexus with the avowed object to be achieved thereby , namely, to ensure safety and security of tenants occupying or residing in properties in dilapidated condition which needed some incentive to be given to owners, developers, etc. No complaint, therefore, can be made that such classification is either irrational or arbitrary or it has no nexus with the object. It was, therefore, submitted that the petition deserved to be dismissed.

21. Having given thoughtful and anxious consideration to the rival contentions of the parties, in our opinion, the petition deserves to be allowed. As far as notification dated 4th October, 1999 is concerned, to us, it is clear that the language of the notification is express and explicit. There is no ambiguity therein. True it is that the Preamble of the notification refers to tenanted premises. But then a decision has been taken after considering all facts and it unequivocally stated that reconstruction/redevelopment would be available to existing authorized residential development and additional FSI would be allowed as an incentive "to the owner". It also refers to the fact that such benefit would be available for reconstruction/redevelopment of buildings destroyed by fire, collapsed, demolished, etc. The Committee referred to therein was empowered to decide "the buildings which are in dangerous and dilapidated" condition. It is thus clear that the notification has taken into account all relevant, germane and valid considerations including the nature of building and condition of construction. If it is dilapidated or dangerous, some incentive should be given to the owner, occupier, co-operative housing society so that such dilapidated/dangerous building could be reconstructed/redeveloped. In our judgment, therefore, the petitioner is right in contending that if that was the sole consideration, no distinction can be made between the premises occupied by "A" or by "B". A building otherwise dilapidated or dangerous in possession of a tenant could not be described or considered safe, if occupied by owner, builder, developer or a member of co-operative housing society. Condition of building has nothing to do with the fact as to who occupies it. It has something to do with the building itself. The object cannot be to give a particular benefit to the owner if he has let the property and the same is occupied by a tenant by denying and depriving similar benefit to him if it is occupied by the owner himself. The intention is to save people from dilapidated/dangerous nature of building. Keeping in view the paramount consideration, advisedly the operative part of the notification makes no mention of tenants and the operation of the notification has not been made limited though the proposal was made by the respondent-Corporation with a view to solving the problem of rehousing of tenants which had been referred to in the Preamble of the notification. In our opinion, therefore, the submission of the petitioner is well founded that the benefit must be given to one and all similarly situated provided the primary condition is fulfilled viz. the building must be in a dilapidated or dangerous condition.

22. The learned counsel for the petitioner is also right in submitting that when the language of the notification is clear, it has to be given effect. The court will interpret the notification as it is. It is thereafter not open to the respondent-authorities to state how such notification was interpreted by them or the meaning given by the authorities.

23. In this connection, our attention has been invited by the learned counsel to a decision of the Full Bench of this Court (Nagpur Bench) in Anil Dattatraya Ade v. Presiding Officer, School Tribunal, Amravati Region, Amravati and Ors., (2003) 2 MhLJ 316 (FB). It was submitted in Anil Dattatraya Ade as to how certain provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 were interpreted by the Government. Dealing with the submission and interpreting the provisions of the Act, one of us (C. K. Thakker, C.J.) stated;

"But, even otherwise, in our judgment, whether or not an Act would apply to a particular institution would depend upon the interpretation of the relevant provisions of law. This is "exclusively" a "judicial function" and expression of opinion by the petitioner, by the respondent or by the State Government is immaterial and cannot bind the Court."

(emphasis supplied)

24. The above view has been reiterated recently by the Full Bench in Awdhesh Narayan K. Singh v. Adarsh Vidya Mandir Trust and Anr., (2004) 1 All MR 346 (FB). Following Anil Dattatraya Ade, C.K. Thakker, C.J. said;

"There is another reason also why the submission on behalf of the State Government cannot be accepted. Enacting a law is a legislative function. When legislature delegates such power on an executive, it is permissible for the executive or Government to exercise such power. In the light of express provisions in Section 16 of the Act empowering the State Government to frame rules, it was open to the Government to frame rules. In exercise of such powers, the Rules have been framed by the State Government. To that extent, therefore, no objection can be raised. But the function ends there. It is not open to the Government to come forward, interpret those Rules and insist that the interpretation adopted by the Government should be accepted by the Court. Interpretation of statutory provision primary or delegated- is judicial function pure and simple. The Government cannot do both, use words in a statute and give meaning to those words. In our judgment, the former is the power of the Government, the latter is of the Judiciary. Therefore, once a provision has been made, it is for the Judiciary to give meaning to the words used by the rule making authority, to interpret them and to apply to concrete cases."

(emphasis supplied)

25. In our judgment, thus, the law appears to be well settled. Once a notification is issued, it is the language used in the notification which is important, relevant and material. It is the language on the basis of which the Court will decide the matter. Interpretation is exclusive judicial function. Construction of notification is the function and power of the Court and Court alone. Neither the petitioner nor the respondents nor any other authority has any voice in the process of interpretation. Once a notification is issued, it is for the Judiciary to interpret it to give meaning to the words used and to apply it to the case on hand.

26. So far as the notification dated 4th October, 1999 is concerned, in our considered opinion, the language is clear and leaves no room of doubt that the benefit is not restricted to tenanted premises. The contention of the respondents, therefore, that it was issued only to protect the tenanted premises cannot be upheld and is hereby negatived.

27. The learned counsel is also right in urging that in the light of the language used, explanation put forward by the respondents in affidavits and further affidavits can neither alter the position nor make the situation better. For that, reference could be made to Commissioner of Police, Bombay v. Gordhandas Bhanji, as also to Mohinder Singh Gill v. Chief Election Commissioner, New Delhi, . In both the cases, the Apex Court held that public orders publicly made in exercise of statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant or what was in his mind or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those of whom they are addressed and must be construed objectively with reference to the language used in the order itself. "They are not like old wine becoming better growing older". We are, therefore, unable to uphold the argument of the respondents that the notification has been issued with limited intention to give incentive of additional FSI to owners, builders and developers whose buildings were in occupation of tenants.

28. It was finally urged by the respondents that in any case, by a subsequent decision dated 28th July, 2003, modification has already been made and it was held that the reconstruction/redevelopment scheme and incentive of additional FSI would be allowed to existing authorized tenanted buildings. In our opinion, however, the incentive was given in the larger public interest. It was for safety and security of persons occupying and staying in dilapidated or dangerous buildings. Thus, the paramount consideration was the nature of building and safety of people occupying such property. As already observed hereinabove, dangerous/dilapidated building might have been occupied by an owner or a tenant, the element of danger is inherent in it. If the intention of the authorities is to save and protect people from inherent danger, there is no earthly reason to make distinction on the basis of occupation of such building by tenants and owners/occupiers. The so-called classification, in our opinion, is neither based on intelligible differentia nor it has rational relation or nexus to the object sought to be achieved. It is well settled and covered by a catena of decisions starting from Ram Krishna Dalmia v. Justice S.R. Tendulkar and Ors., that for upholding the classification under Article 14 of the Constitution, twin test must be satisfied, (i) every classification must be founded on intelligible differentia i.e. it must distinguish those that are grouped together from the rest; and (ii) such classification or differentia must have a relation or nexus to the object sought to be achieved thereby.

29. In the instant case, the twin test is not satisfied. A classification between owners and tenants is neither based on intelligible differentia nor it has a rationale nexus to the object sought to be achieved. If the intention is to protect persons from any casualty keeping in view the nature and condition of the building, it is immaterial whether it is occupied by an owner himself or has been let out to someone else. The intention is to avoid calamity. If it is so, and to fulfil that object, some incentive has been extended in the form of additional FSI, there is no reason on the part of the State authorities to create artificial distinction between the buildings occupied by owners and members of co-operative societies and buildings occupied by tenants. Such classification, in our judgment, must be held arbitrary, discriminatory, unreasonable and ultra vires Article 14 as well as Article 19 of the Constitution.

30. For the foregoing reasons, the petition is partly allowed. The distinction made between tenanted properties and other properties for reconstruction/redevelopment of dangerous/dilapidated buildings for the purpose of granting incentive of additional FSI is declared arbitrary, irrational, discriminatory, unreasonable and violative of Articles 14 and 19 of the Constitution of India. The benefit under the notification dated October 4, 1999 as clarified/modified by the State Government on July 28, 2003 will be available to all properties which are in dilapidated or dangerous condition, irrespective of whether they are occupied by tenants, owners, occupiers or belong to co-operative housing societies. Rule is made absolute to the extent indicated above. In the facts and circumstances of the case, however, there shall be no order as to costs.

Parties to act on an ordinary copy of this order duly authenticated by the Sheristedar/Private Secretary.

The learned counsel for respondent No. 3 prays that the order passed by us today may be stayed for some time so as to enable the Corporation to approach the Hon'ble Supreme Court. In our opinion, it would be reasonable to grant stay against the judgment for a period of four weeks from today. Order accordingly.