Bombay High Court
Corporation'S Act vs The State Of Maharashtra on 10 December, 2013
Bench: B.P. Dharmadhikari, R.V. Ghuge
writ4045.05 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
WRIT PETITION No. 4045 OF 2005
Ahmednagar Municipal Corporation,
Body constituted under the provisions
of the Bombay Provincial Municipal
Corporation's Act,
Through its Commissioner. .. Petitioner.
versus
1. The State of Maharashtra,
Through Department of Social Justice,
Culture, Sports and Special Assistance,
Mantralaya,
Mumbai - 400 032.
2. The Zilla Krida Sankul Karyakari,
Samiti
(The Ahmednagar District Sports
Complex Committee),
Registered Public Trust having
Registration No. S/F/6670 (A'Nagar),
dated 28-02-2002,
Through its Member Secretary,
The District Sports Officer,
Ahmednagar.
3. The Collector, Ahmednagar,
District : Ahmednagar.
4. The Chairman,
The Zilla Krida Sankul Karyakari Samiti,
Ahmednagar,
District : Ahmednagar.
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writ4045.05 2
5. M/s. M.R. Mutha,
a Partnership Firm having its
registered office at 1/7, Govardhan Apartment,
Dr. Ambedkar Road, Ahmednagar. .. Respondents
.........................
Mr. P.M. Shah, Senior Advocate, with
Mr. Mukul Kulkarni, Advocate, for the petitioner.
Mr. S.K. Tambe, Assistant Government Pleader, for
respondent nos.1 and 3.
Mr. A.P. Bhandari, Advocate, for respondent no.2
and 4.
Mr. R.R. Mantri, Advocate, for respondent no.5.
..........................
CORAM : B.P. DHARMADHIKARI &
RAVINDRA V. GHUGE, JJ.
Date of reserving the
judgment : 25th October 2013.
Date of pronouncing the
judgment : 10th December 2013
JUDGMENT (Per B.P. Dharmadhikari, J.) :
1. Petitioner Municipal Corporation - a local
authority constituted & functioning under the Bombay
(Maharashtra) Provincial Municipal Corporations Act, 1949,
( hereafter 1949 Act & earlier known as Bombay Provincial
Municipal Corporation Act) in this petition under Art. 226 of
the Constitution of India has sought the following reliefs :--
i) a direction or writ to restrain the
Respondents from developing the final plot no.
194 located at Scheme 3 known as Wadia Park
in derogation of the government resolution
dated 8.2.2002 & Maharashtra Regional & Town
Planning Act,1966, hereafter referred to as
1966 Act. ( prayer A in writ petition)
ii) to restore said final plot in possession of
Petitioner. (Prayer B)
iii) to demolish the shopping plazas i.e.
buildings A & B or to hand over those buildings
to Petitioner for putting it to permissible use.
(Prayer B-1)
iv) to restrain the Respondents or those
claiming through them form putting the
shopping plaza A & B or the periphery of the
main building to any commercial use till
occupancy certificate as per S. 263 of the
Bombay Provincial Municipal Corporation Act.
(Prayer B-2)
v) to demolish or remove the basement,
ground floor, mezzanine cum first floor i.e. two
level shopping in the periphery of the main
stadium building & to restore the construction
as per approved building plan dated
10.11.2001. (Prayer B-3)
vi) to direct Respondents to evict Respondent
5 by removing its corporate office in about
370.05 Sq. Mtrs. Area in southern side of the
stadium near badminton hall and to put it to
use as part of stadium. (Prayer B-4)
vii) to direct Respondents to remove the shops
constructed in the space meant for entrance of
stadium on western side between Sector I & II
ad measuring about 120 Sq. Mtrs. & to restore
said entrance. (Prayer B-5)
viii) interim payer to restrain the Respondents
from further developing the site in derogation
of the government resolution dated 8.2.2002 &
Maharashtra Regional & Town Planning Act,
1966. (Prayer C)
ix) to deliver to Petitioner the possession of
final plot no. 194 located at Scheme 3 known
as Wadia Park continuing with the Respondents
in derogation of the government resolution
dated 8.2.2002. (Prayer D)
x) to direct the respondents to enforce
compliance with the directions or writs issued
or to to permit the Petitioners to execute it & to
reimburse the expenditure incurred. (Prayer
B-6).
Writ Petition with prayers A to D came to be filed
on 6.6.2005 while Prayers B1 to B6 came to incorporated as
per Court orders dated 4.7.2012. Prayers E to G in Petition
are consequential and hence, have not been stated above.
2. Petitioner was earlier a Municipal Council
constituted as per the Maharashtra Municipal Councils,
Nagar Panchayats & Industrial Townships Act,1965.
Respondent 1 is the State Of Maharashtra while Respondent
3 is the Collector of Ahmednagar district. Respondent 2 is
the public trust registered under the Bombay Public Trust
Act as per the policy of Respondent 1 with a view to manage
the sports center on final plot 194 while Respondent 4 is its
Chairman. It is also a District Sports Committee. The
Respondent 1 State has nominated the trustees on said trust.
Respondent 5, the registered partnership firm undertaking
the development of the subject sports center as per its
concession agreement with the Respondent 2, has been
added as party on 12.9.2007.
3. This Court has on 12.9.2007 passed interim orders
& directed the parties to maintain status quo regarding the
shops forming part of commercial complex as on that day.
Respondent 5 filed Civil Application 10151/2009 for
vacating it. Order of this Court dated 21.12.2010 rejecting
said prayer was questioned by the Respondent 5 developer
in SLP (civil) 9466/2011 & while refusing to interfere, the
Hon. Apex Court expected this Court to make all endeavours
to decide the main writ petition at the earliest. Accordingly,
We have heard Sr. Adv. P. M. Shaha with Adv. Mukul Kulkarni
for Petitioner, Shri Suryawanshi, learned AGP for
Respondents 1 & 3, Shri Bhandari for Respondents 2 & 4
and Adv. Mantri for Respondent no. 5 developer.
4 Shri Shaha, learned Sr. Adv. points out that
Respondent no. 2 is established as per Government
Resolution dated 16.11.1998 and registered as a public trust
vide S/F/6670 (A'Nagar) dated 28.2.2002 under the
Bombay Public Trusts Act. Respondent 3 Collector is made
the ex-officio Chairman of the Respondent 2 Trust. The suit
property i.e. final plot 194 in development plan (DP here
after) of Ahmadnagar ad measuring about 83,322.05 Sq.
Mtrs. at scheme no. III, Chawrana (Bk) - known locally as
Wadiya Park which had a badminton hall & a pavilion etc. is
earmarked for stadium & sports complex. On 29.9.1998,
vide resolution no. 24, Petitioner resolved to construct a
sports complex. Construction was to be through Respondent
2 District Sports Committee i.e. Trust. Condition no. 5 of the
model terms prescribe that the control over such stadium &
sports center has to vest with Respondent 2 Trust. This
condition was specifically not accepted by Petitioner & it
resolved to vest administrative control with a committee of
its President, Vice-president, members of the Standing
Committee & the President of the sports committee of the
then Ahmadnagar Municipal Council. Thereafter, the above
policy decision dated 16.11.1998 was taken by Respondent 1
State & then Respondent 2 Committee (Trust) came to be
constituted for Ahmadnagar. A registered agreement was
then executed between Petitioner & Respondent 2/3 on
22.9.1999 and suit property came to be transferred to
Respondent 2. According to Petitioner, the terms &
conditions in GR dated 16.11.1998 & resolution of Petitioner
dated 29.9.1998 came to be adopted as part of this
agreement. On 25.9.2001, Respondent 2 applied for
permission to develop with a map & it was granted by the
Petitioner vide order dated 1.10.2001 subject to fulfillment
of its terms and conditions.
5 Adv. Shaha urges that Respondent 1 State then
issued GR dated 8.2.2002 & allowed Respondent 2 to
proceed through the schemes of Finance,Build,Transfer
(FBT) & Build,Operate & Transfer (BOT) only in case of
Petitioner. Similarly, it permitted commercial user also
contrary to the reservation in DP under 1966 Act. Said GR
also envisages execution of a memorandum of
understanding (MOU) between Petitioner and Respondent
2/3 finalizing the terms & conditions of development and
approval thereto by the Director, Youth & Sports,
Government of Maharashtra. But no such MOU is ever
executed. The terms & conditions are never settled &
Respondents deliberately avoided the MOU. The Respondent
3 on 10.12.2003 moved an application seeking permission to
construct as per fresh plan and memo of petition discloses
that said request is still pending. On 24.2.2004, an
inspection was conducted by Petitioner & it learnt that
Respondent 2 was unauthorizedly constructing a basement
in the complex. Petitioner on 26.2.2004 issued a notice to
stop it under 1966 Act as also under BPMC Act and called
upon the Respondent 2 to pay development charges of Rs.
28,12,766/ as per S. 124 of 1966 Act. The notice was totally
ignored & on 2.6.2004, Respondent 2 sought partial
permission from the Petitioner with assurance to pay the
development charges after same are determined by the
Respondent 1 State. The "development body" of the
Petitioner in meeting on 28.5.2004 resolved not to grant
revised or fresh permission after noticing violation of general
body resolution dated 29.9.1998, GR dated 16.11.1998 &
8.2.2002. General Body of Petitioner vide resolution no. 35
dated 20.11.2004 resolved to take back the suit property and
constituted a committee consisting of Mayor, Commissioner,
Deputy Municipal Commissioner, District Sports Officer and
Town Planner. But the District Sports Officer who is secretary
of Respondent 2 chose not to cooperate & kept away. On
6.1.2005, a notice pointing out numerous breaches was
issued to Respondents 2 & 3. Thereafter, the writ petition
came to be filed as Respondents 1 to 4 did not discontinue
the unauthorized construction. Petition has been further
amended to place the relevant developments date wise on
record. Those events & dates have a bearing on the defence
of deemed sanction raised by the Respondent 5. Hence, we
feel it appropriate to refer to those details while discussing
this defence little later.
6. Petitioner argues that as plot no. 194 has got DP
reservations notified as cite no. 165 & 166. Reservation 165
is for stadium & sports complex while site no. 166 is meant
for park. Thus. Commercial exploitation is totally prohibited.
S. 2(2) of 1966 Act defines Amenity & it covers the sports
complex. Hence, without proper modification either through
S. 22A or S. 37 thereof, the shopping plazas can not be
erected. The modification proposed vide EP 44 is rejected &
in any case not approved by the Respondent 1 State
Government. Hence, construction of two independent
commercial buildings vide plaza A & B is not legal & those
two structures must be demolished. He invites attention to
the approved plan dated 1.10.2001 to submit that this is the
only sanctioned building plan, revised permission is dated
10.11.2001 & any construction in its violation must be
declared illegal & demolished. The place at which the
commercial complexes i.e. building A & B have been built
are earmarked for parking in the stadium cum sports center
complex & hence, its other user can not be condoned. He
also states that highhandedly, without obtaining the
occupancy certificate, buildings have been occupied & put to
commercial user also. Approved plan does not permit any
basement but the same has been constructed illegally. The
sanctioned plan allows 126 shops to be housed at
circumference of the stadium in between its two outer walls
i.e. at periphery. The Respondents have constructed about
252 shops by varying the size & area of the sanctioned shops
& by increasing the number of floors., shops are provided in
two tiers i.e. floors in periphery of stadium abutting Tilak
Road. The approved entrance door of stadium is also closed
to adjust these shops. Respondent 5 firm has also occupied
huge area for its Corporate office. All these deviations are
without any approval/sanction as required by law. Same also
are beyond the regularization & not compoundable.
Inconsistent stand of the Respondents in correspondence or
then in statutory appeal under S. 47 is also highlighted. The
defence of "deemed sanction" is erroneous. He points out
how Respondents were seeking sanction even on 13.5.2004
& 29.4.2005. Other dates & developments are also pressed
into service to rebut said defence.
7. Adv. Shaha states that the Respondents nowhere
specifically plead completion of project & in affidavit dated
21.7.2005, Respondent 2 has stated that construction is
about 95% complete. He further contends that demand of
the development charges or its payment does not & can not
imply sanction to the unauthorized structure. Respondent 2,
being a public trust, can not invoke S. 58(2)(i) of 1966 Act.
It already resorted to S. 44 of said Act & has also filed an
appeal under S, 47 thereof challenging the rejection of
occupancy certificate on 30.9.2005 by Petitioner. Assistance
is also taken from S. 45(5) & S. 46 to buttress the
contention. The concession agreement dated 7.9.2003
entered into by Respondent 2 & Respondent 5 is not binding
upon the Petitioner. Even otherwise, the shopping plaza on
plot A & B was to be approved by the Petitioner as per DC
Rules & Respondents could not have proceeded to construct
it in its absence or in the face of objections thereto.
Communication dated 31.10.2005 sent by Respondent 2 to
Petitioner to persuade it to sign MOU is also relied upon.
Complaint made by Respondent 2 to Chief Minister on
31.10.2005 about sanction-rejection dated 1.10.2005 by
Petitioner & rejection of occupancy certificate dated
20.10.2005 is also read out. Learned Adv. Points out that
after 10.11.2001, all subsequent steps in the matter are
unilateral by Respondent 2 & without taking Petitioner in
confidence. The stand of Respondent 4 in reply affidavit
dated 30.7.2012 that ownership lies with it is also assailed
as contrary to basic understanding between the Petitioner &
Respondents 1 to 4 & schedule A with GR dated 16.11.1998.
The Petitioners got knowledge of role of Respondent 5 only
on 12.9.2007 when this Court passed orders of status quo.
He has invited attention to letter dated 3.1.2006 pointing
out the extent of unauthorized commercial construction by
the Respondents.
8. Judgments at 2013 (5) Mh.L.J. 30(SC) - Esha
Ekta Apartments Co-operative Housing Society vs.
Municipal Corporation of Mumbai & 2012 (3) SCC 619--
Manohar Joshi vs. State of Maharashtra, 2007 (5)
Mh.L.J. 25- Ghanshyam Chandumal Harwani vs, State Of
Maharashtra, 2001 (3) Mh.L.J. 31- Vithal Ramchandra
Devkhar vs. State of Maharashtra & 2007 (11) SCC 40-
Commissioner of Municipal Corporation, Simla vs. Prem
Lata Sood & Others are heavily relied upon by him to
support the prayers.
9. Shri Mantri opened the arguments for
Opponents. Arguing for Respondent 5 Developer, he submits
that the Petitioner has got various powers & instead of
putting the same to use, with oblique motive, present writ
petition came to be filed that too belatedly. According to him
the discussions in the meetings of Petitioner are sufficient to
show its ulterior motive. On surmises, huge profits have
been found possible and Petitioner, ignoring the FBT nature
of contract, demanded 25% share in profits or then part of
property itself. Feigning ignorance of the developer agency
i.e. the Respondent 5 firm, writ petition was filed after
undue delay and interim order was obtained almost after 2.5
years. This was only to put Respondent 5 who by then had
invested huge amounts in the project, in problem. Letter
dated 11.6.2004 & 3.1.2006 sent by the Petitioner to
developer are relied upon to substantiate the bad faith.
Resolution no. 5 of the general body of the Petitioner in
meeting dated 20.11.2004 is read out to show that on that
day Petitioner was aware of BOT development & permission
given by the State to use 1/3rd of the available area for
commercial purpose. It also notices that Mayor was/is
managing committee member of Respondent 2 Trust.
Approved plan does not show that shopping plaza i.e.
building A & B have come up at parking place. The parking
shown in it is only for 10 to 12 cars while building A & B
have come up at place earmarked for fountain. Permission
granted initially is only tentative and final permission is to
be granted after the Respondent 2 submits "work done"
plan. Fresh plan submitted is still pending & these assertions
in paragraph 7 of the additional reply affidavit of
Respondent 5 have remained uncontroverted. He contends
that perusal of relevant Development Control Rules i.e. DCR
is essential, if controversy as alleged, is to be adjudicated
upon but the Petitioners have not even touched that facet.
10. Our attention is drawn to paragraph 9 of CA
10151 of 2009 to show how the deemed permission in terms
of S. 48 (4) of the 1966 Act resulted in June,2004 when the
plans submitted on 2.6.2004 & 11.6.2004 were kept pending
without any action by the Petitioner. Huge area of 5285 Sq,
Mtrs. is still available for parking. The law does not prohibit
commercial user where reservation is for sports center or
stadium. Similarly, the exact requirement of parking area or
permissible commercial area can not be worked out as the
Petitioner has not brought on record necessary data & law.
Plea in paras 28 to 30 is pressed into service to show the
specific defence already raised on these lines & to
demonstrate loss sustained by Respondent 5. He invites
attention to letters dated 1.10.2001 & 20.4.2004 sent by the
Petitioner permitting construction of shops, offices etc. i.e.
commercial user. Reply dated 31.1.2005 sent by
Respondent 1 to Petitioner is also relied upon. This direction
of State Government was acquiesced by accepting the
proportionate development charges & as such, estoppel bars
Petitioner from raising an objection to commercial user & to
operation of S. 58 of 1966 Act. He invites attention to
pleadings in paragraph 17-VII (a) & (b) of the writ petition
to urge that there is admission of commercial user. No
entrance or its part is blocked & he adds that if any such
entrance door is blocked, Petitioner can force it open
without any opposition on part of the Respondent 5.
Constructed space available for use has been occupied by
said Respondent for its corporate office as per law. Letter
dated 3.1.2006 sent by Petitioner is pressed into service to
show the knowledge of completion of construction,
commercial user & malafides actuating the belated approach
to this Court. He also states that the documents demanded
either on 15.1.2004 or 30.9.2005 can not be supplied to the
Petitioners as the revised plans sent by Respondent 2/5 are
still pending. Resolution 1 dated 28.5.2004 of the General
Body of Petitioner confirming partly the earlier proceedings
dated 20.2.2004 & 31.3.2004 are criticized in this
background as without any apparent reasons. S.46 of 1966
Act casts an obligation upon the Petitioner & the revised
plans submitted to it by the Respondents are not examined
in the light of DCR provisions & compoundability.
Modifications sanctioned by the State Government in second
revised DP of excluded part of Ahmadnagar show that the
proposal to club site 165 & 166 together as one site for
stadium,sports complex & shopping center is still pending.
Pending Appeal under S. 47 of 1966 Act read with S. 53(3),
in this situation does not permit the Petitioner to remove any
part of the construction. He also argues that application of S.
58 r/w S.124F of 1966 Act is also a material aspect which
needs to be examined. All these issues having direct bearing
on the prayers made in the writ petition are being looked
into by the competent authorities as per statutory scheme &
till then no cognizance of the prayers made can be taken.
Lastly, he points out that the ultimate purchasers who are
owners of the shops or other parts/portions of the
construction are not joined as parties before this Court, and
hence, none of the prayers in memo of writ petition can be
granted in their absence.
11. Adv. Bhandari on behalf of Respondent 2 & 4
states that on 4.7.2008, the Respondent 1 sanctioned E.P.
Nos. 1 to 43 & 45 to 62 while the E.P. 44 is still under
consideration. Municipal Council, Ahmadnagar on 29.9.1998
resolved & accepted the commercial user i.e. shopping
complex. The GR dated 16.11.1998 no where bars the
shopping complex & on the contrary, it emphasizes
importance of S. 58 of 1966 Act in the matter. The role of
State Government & agreement dated 21.2.1999 being
subject to State approval, absence of any term empowering
the Petitioner to resume back the land, permission dated
1.10.2001 for shops & offices, approval dated 8.2.2002 by
the State to user of part of area for commercial purpose ,
submission of revised maps/plans on10,12,2003, no decision
on it within 60 days by the Municipal Council & defence of
deemed sanction are the important aspects according to
learned Counsel. Respondent 2 on 7.7.2004 informed the
resulting deemed sanction & intention to proceed with the
construction to Petitioner. He also points out GR dated
24.2.2003 allowing commercial user of the 1/3rd area of
final plot no. 194 is 83,322.05 Sq. Mtrs. Existing
construction is on 1,35,000/ Sq. Ft. only. The approved plan
dated 10.11.2001 also shows that shops are allowed to be
constructed. Initial permission is for 60,000 Sq. ft. while the
building A & B are 41,102 sq. ft. only. Resolution of
Petitioner dated 20.11.2004 shows its knowledge of BOT
nature. He relies upon the resolution dated 29.7.2004 of the
Special Committee of the Petitioner to show how it
acquiesced in the structure & demanded 25% of the
proposed 252 shops. The legal notice issued by the Petitioner
also does not show alleged violation of DP as the ground.
Communication dated 15.1.2004 sent by the Petitioner to
Respondent 2 reveals that decision could not be reached &
application of Respondents was kept pending. Earlier
resolution & proceedings dated 20.2.2004 are relied upon to
urge that burden of dealing with earlier occupiers & their
court cases was also placed upon Respondent 2 & 4 only.
Letter dated 20.4.2004 by Petitioner to State about mixed
user, demand of development charge accordingly and
direction of State to charge proportionate development
charge are used to discredit the Petitioner. Adv, Bhandari
submits that communication dated 20.10.2005 is the first
disclosure of rejection of building permission on 1.10.2005.
He also invites attention to paragraph 10 of the affidavit
reply of Respondent 1 to show plea of deemed permission
after 60 days from submission of fresh plan on 10.12.2003
as said request is stated to be still pending by the Petitioner.
Stand of Respondent 1 that 90% construction work is over
& it is as per State policy is also pressed into service.
Permission given by the Chief Officer of Municipal Council,
Ahmadnagar on 10.11.2001 sanctions shopping complex
also. Direction of State Government dated 16.3.2005 to
Petitioner to accord sanction as per S. 58 (2) is also relied
upon.
12. Learned Counsel further adds that as Respondent
2 is an authority of State Government, S.58(2) of 1966 Act is
squarely attracted. The Petitioner permitted things to
become irreversible & then approached this Court & did not
bother to seek any interim relief till 2007. There is also
arbitration clause in concession agreement. Several disputed
questions arise and controversy is mainly about breach of
contract, Petitioner also suppressed material facts, therefore
this Court should not entertain a writ petition as civil suit is
the most appropriate remedy. He adds that the occupants
are not paying any amount to Respondent 2 or 4 due to
status quo order operating in the matter.
13. Learned AGP relies upon the reply affidavit of
Respondent 1 to oppose the writ petition. He also adopts the
arguments of adv. Bhandari.
14. Shri Shaha in reply arguments states that about
40,000 Sq,ft. of excess construction is effected & extra profit
has been earned by the Respondent 5. GR dated 24.2.2003 is
a general guideline & it does not affect the operation of S.
31 or other similar provisions of 1966 Act. GR dated
8.2.2002 is specially for Petitioner & it does not lay down
any specific area for commercial purpose. The occupation &
user without completion certificate as per S. 263 of the
BPMC Act is unsustainable. The commercial user or activity
can not be the dominant activity in the complex but it has to
subserve the main purpose or object. Last application
submitted for sanction is dated 29.4.2005 & there were total
9 such applications for revised sanction. The rejection was
communicated & notice action for illegal construction was
also taken. The theory of :work done plan" is a misleading
defence. Respondent 2 is not a State but a trust & hence, S.
58 of 1966 Act is not attracted at all.
15. We find that the land i.e. final plot no. 194
undisputedly came from Petitioner Municipal Corporation.
It is claimed by the Petitioner that it has not received any
sum from any occupant towards occupation charges or taxes.
Respondents also claim that they have not received anything
from the persons in occupation because of the orders of this
Court to maintain status quo passed on 12.9.2007 regarding
the shops forming part of commercial complex as on that
day. After Civil Application 10151/2009 moved by it for
vacating the same was rejected on 21.12.2010, Respondent
5 developer questioned it in SLP (civil) 9466/2011
unsuccessfully. After hearing respective Counsel, several
doubts do arise in our mind. Few such questions which
call for consideration are :--
a-- Why Petitioner did not challenge the tender
invitation by Respondent 2 if it was opposing the commercial
user totally?
b-- Why Petitioner did not stop the process if it was
opposed to handing over of management of Sports Center to
Respondent 2?
c-- Why it did not specifically enforce its representation
& participation in meetings of Respondent 2 Trust ?
d-- Why Petitioner did not stop the construction of two
commercial plazas "A" & "B" at sites proposed for parking?
e-- Why the Municipal Commissioner &/or Mayor did
not file & move the legal proceedings immediately to
prohibit creation of 3rd party interests?
f-- Why the Petitioner did not join Respondent 5 as
party while approaching this Court? Why it has feigned
ignorance of existence of Respondent 5?
g-- Why the Petitioner did not challenge & stop said
Respondent 5 from inviting the public at large to book in its
scheme?
h-- Why the Petitioner could not carry out the
inspections of the ongoing work from time to time &
produce the records thereof before this Court?
i-- Why the Petitioner can not or could not point out
the violations, if any, of the interim orders of this Court
dated 12.9.2007?
j-- Why neither Petitioner nor any of the Respondents 1
to 4 could secure a direction requiring the Respondent 5 to
produce the accounts of bookings & details of occupants or
the agreements with them?
k-- Why the Petitioner did not levy or collect the
municipal taxes form the occupants?
l-- Why Respondents 1 to 4 proceeded with project in
the face of objections of Petitioner when it had not signed
MOU?
m-- Why neither Petitioner nor Respondents are
pointing out any specific provision either in DCR or Building
byelaws regarding the extent of area to be earmarked for
parking in case of stadium & sports center?
n-- When stadium has seating capacity of 40,000
people, whether & why the Respondents 1 to 4 or Petitioner
did not initially procure or prepare an estimate or project
report pointing out the area available, its earmarking &
details of construction with its type/user looking to the large
area of open land to be used for the project?
o-- When stadium has seating capacity of 40,000
people, whether the stand of Respondent 5 that parking in
approved plan dated 1.10. 2001 was only for 10 to 12 cars
is plausible?
p-- Who may be the ultimate victims if the legal
provisions are strictly interpreted?
q-- As of to-day, who is the likely beneficiary in this
controversy?
r-- Is this litigation being fought in collusion & with
oblique motive?
s-- Is any legal right of Petitioner violated? Prejudice
to it?
t-- What is impact of defence of deemed sanction?
u-- What is impact of pending appeal under S. 47 of
1966 Act?
v-- Whether S.58 of 1966 Act has any relevance?
w-- Whether compounding or regularization is
open?
x-- What can be the legal & workable solution?
y-- What should be the precautionary measures in
future?
z-- Whether any disciplinary measures are called
for?
However, before embarking upon the exercise to
resolve the same, we find it appropriate to evaluate the
controversy of deemed sanction as pleaded in defence by the
Respondents. The question whether any such defence is
open in present facts or not will be gone into thereafter.
16. One document in which defence of deemed
sanction appears is the memo of appeal under S. 47 of 1966
Act by the Respondent 2. Said appeal appears to have been
filed after receipt of letter dated 1.10.2005 on 20.10.2005 &
letter dated 20.10.2005 on 21.10.2005. Both these letters
are sent by the Petitioner Corporation and appeal is claimed
to be within one month of receipts of said letters. This
appeal mentions that State Government on 24.2.2003
instructed Respondent 2 to build a stadium & shopping
complex & allowed 1/3rd land to be put to commercial
purpose. Respondent 2 accordingly invited the tenders & as
tender of Respondent 5 was found highest, work order came
to be issued in its favour on 1.11.2003. As per sanction, in
periphery walls of the stadium, shops were located on
ground floor & offices on 1st floor. However, due to slope
towards Tilak Road, to make adjustments, two level
shopping became essential at that place. Thus, a revised plan
came to be submitted on 12.2.2004 & 30.4.2004.
Respondent 2 then wrote to Petitioner on 13.5.2004,
2.6.2004 & 11.6.2004 but no decision was taken by it.
Hence, after 60 days & on 30.6.2004, in terms of S. 45(5) of
1966 Act, the deemed sanction followed. It was accordingly
communicated to Petitioners on 7.7.2004. Respondent then
points out a demand dated 26.2.2004 by the Petitioner
towards the development charges and S. 124(F) 1. This plea
in Appeal, even if presumed to be correct, still is about the
adjustments in periphery wall of the stadium & does not
speak of shopping plazas A & B.
17. Respondent 2 has also filed a reply affidavit
before this Court on 21. 7. 2005. Therein, it is stated that
95% of the construction is already complete. In para 9 of
said reply, Respondent 2 states that it applied to the
Petitioner for revised permission with the plan on
10.12.2003 & asserts grant of deemed sanction after 60 days
therefrom. Statutory notice dated 26.2.2004 sent by the
Petitioner is urged to be after said 60 days. Perusal of notice
reveals a joint inspection on 24.2.2004, mention of sanction
dated 1.10.2001 as revised on 10.11.2001 and work of
basement digging in periphery of the Stadium. Respondent 2
has been warned to discontinue the illegal work &
threatened with coercive steps as per 1966 Act. Thus, this
insistence by the Petitioner to stick to 2001 sanctioned plans
is after 12.2.2004 & hence, the plan submitted by
Respondent 5 on 12.2.2004 or its deemed sanction as
pleaded in appeal memo becomes redundant. The plan with
application dated 10.12.2003 is of buildings A & B i.e. of
shopping plazas. About plans dated 10.12.2003, on
15.1.2004, Respondent 2 was informed that shopping plaza
plots A & B can not be allowed as per town planning
scheme 3- final plot 194. Thus, in the face of express
rejection on 15.1.2004, repeated request for same purpose
by the Respondent or not taking same decision upon it
again by the Petitioner, are the events not sufficient to infer
the "deemed sanction". Moreover, this story of deemed
sanction is not in consonance with the story in its S. 47
Appeal. On 29.4.2005, while depositing the development
charges, said Respondent again seeks the building
permission for shopping plazas A & B. Thus the Respondent
2 again seeks building permission for buildings A & B & this
act also militates with defence of deemed sanction. Plea of
Deemed sanction must be certain & all necessary ingredients
must be disclosed and established.
18. In this background, the scheme of S. 44,45 & S.
53 of 1966 Act needs appreciation. Chapter IV of the Act is
about control of development & use of land included in DP.
S.43 prohibits every person from carrying out the
development or changing use of land without permission in
writing of the planning authority. In present matter,
inclusion of land within DP, its user vide reservation site 165
& 166 are the facts not in dispute & Petitioner alleges
development contrary to the DP while according to
Respondents, commercial user is not prohibited by the said
DP. S.44(1) mandates every person not being Central or
State Government or Local Authority intending to carry out
any development to apply to planning authority & seek its
prior permission. This position is also not in dispute before
us. S. 45 requires the planning authorities like Petitioner to
communicate the grant or refusal of permission by an order
in writing. Reasons are also required to be recorded for
imposing conditions or for refusing the permission. Failure to
communicate the decision either way results in grant of
deemed sanction under Section 45 sub-section 5. But then
the language of first proviso to this sub-section reveals that if
the permission sought for violates any legal provisions or the
DP requirement, or any draft or proposed plan, this deeming
fiction is not attracted. Rigour of this proviso is further
strengthened by the later or second proviso of S.45(5),
which creates a negative deeming fiction. Thus, if the
development carried out by invoking deemed permission
under S.45(5) is in violation of any final DP or DCR or other
legal provision, the same is deemed to be unauthorized for
the purposes of S.52 to S.57 of 1966 Act. S.52 to 57 deal
with steps or measures for removal of such unauthorized
development. Thus, this deemed permission to develop is an
exception & rather a stringent exception to normal rule & it
permits an honest diligent owner or developer to proceed to
construct/develop at his own risk. Thus, failure to
communicate decision of planning authority within 60 days
to such person does not result in transforming the otherwise
inherent wrong construction or development into legal one.
It is only concession given to the honest developer who must
be certain that his work is in consonance with all legal
provisions & does not violate it. Only such person can
proceed to develop or construct, if he is ready & willing to
do so at his own risk & costs. Respondents before this Court
can not succeed only by pointing out non communication of
a decision by the Petitioner within 60 days period. Here, on
facts also we have already found such a plea of Respondents
unsustainable & misconceived. Moreover, neither Petitioner
nor Respondents have pointed out any law which enables
commercial user of a site reserved in DP for Stadium &
Sports center. Predecessor of the Petitioner viz. Municipal
Council, Ahmadnagar on 29.9.1998 resolved & accepted the
commercial user i.e. shopping complex. Facts show that on
4.7.2008, the Respondent 1 sanctioned E.P. Nos. 1 to 43 &
45 to 62 while on the E.P. 44 relevant here, there is no
decision. In law, resolution of local body does not amend the
DP user & therefore only said EP 44 became necessary.
Necessity of such a step in law & fact of its still being under
consideration is not in dispute. Notification dated 4.7.2008
reveals that on 4.7.2005 excluded part of the draft
development (second revised) plan was published &
objections were invited under S. 31 (1) of the 1966 Act. An
officer was also appointed under sub-section 2 to hear the
objectors & period for sanctioning the draft development
plan of Ahmadnagar (second revised-excluded part) was also
increased upto 4.7.2008. The State had thereafter
considered the objections & suggestions and then, decided to
keep the proposed modification EP 44 pending. EP 44
appears at Sr. No. 44 & it is in respect of site no. 5 & 6. S. 26
of 1966 Act is on preparation & publication of the draft
development plan. After following or through the process
prescribed in S. 27,28,30 & 31; said proposal with or
without modifications, then becomes the final development
plan under S.31(6) of the 1966 Act. As per proposal
published under S, 26, site no. 5 was for stadium & sports
complex while site no. 6 is for garden. In draft plan
submitted to the State Government as per S. 30 by an officer
appointed under S. 162, site no. 165 was proposed for
stadium & sports complex while site no. 166 for garden.
Through substantive modification republished under S. 31 of
1966 Act, both these sites were to become site 165 i.e. only
one site with reservation for stadium & sports complex &
shopping center. Thus earmarking of site no. 6 is for garden
was proposed to be removed. This proposal is still not
rejected and is claimed to be under its consideration by the
State Government. The other EPs. have been suitably
accepted & published under S. 31 (1). Date 21.8.2008 was
fixed as the date for coming in force of development plan of
the said excluded part of Ahmadnagar (second revised). S.
31 (6) lays down that such development plan is called as
final development plan & it is binding on everybody
including the Petitioner also.
19. In present matter, this scheme of 1966 Act and
events leading to GR dated 4.7.2008 are not in dispute.
Petitioner, in para 3 of the writ petition pleads that the suit
property i.e. final plot no. 194 is reserved for stadium &
sports complex and in support, document at Annexure A is
relied. This document or narration does not specify the date
of publication of plan & there is no disclosure of the date on
which the final development plan of Ahmadnagar came into
force. Annexure A shows heading as "part plan of revised
sanctioned development plan of Ahmadnagar. Plan showing
T.P.S. No. III Wadia Park, F.P. 194 and surrounding area".
Document at Annexure N-2 with petition is the
communication dated 18.7.2001 sent by Assistant Director
of town planning to the Chief Officer of Municipal Council,
Ahmadnagar which shows that final development plan for
Ahmadnagar is in force since 1.4.1978 after final sanction by
the State & in it, entire area of Wadia Park is reserved as
sports center & open play ground. It is stated that therefore,
it can be used as stadium. Town planning scheme no. 3 is
finally sanctioned in 1966 itself & there final plot no. 194
area 83,314 Sq. Mtrs. is for garden & sports complex.
Second development plan for Ahmadnagar was submitted to
State under S.30 for final sanction and it suggests two
reservations in final plot 194. Site no. 165 is for stadium &
sports complex while site no. 166 is proposed for park. The
Assistant Director of town planning has opined that only site
no. 165 therefore can be used as stadium & if site 166 of
park is to be put to use as stadium, steps to have a minor
modification under S. 37 are essential. This letter also
discloses that small shops can be allowed in the structure of
Stadium & prima facie, reservation on site 166 for park was
not affected by the proposed structure. Here, the
Respondents are using the entire area of final plot 194 and
they do not state that site no. 166 i.e. Garden is left
untouched by their construction. In this background, the
importance of EP 44 becomes apparent. If it is accepted,
both these sites become site 165 i.e. only one site with
reservation for stadium, sports complex as also shopping
center & the earmarking of site no. 166 for garden gets
deleted. But then till this is done as per law, separate
reservations on site no. 165 & 166 survive & need to be
adhered to. The proposed change was not acceded to till
4.7.2008 & has not been cleared till date. The defence of
"deemed sanction" needs evaluation in this background.
20. Judgment of Hon'ble Apex Court in 2012 (3)
SCC 619-- Manohar Joshi vs. State of Maharashtra is the
important landmark in such a situation. It also helps in
understanding the law. There the State Government had
directed Poona Municipal Corporation to shift the
reservation on FP No. 110 under DC Rule 13.5. The question
whether it was in consonance with the statutory scheme &
permissible under DC Rule 13.5 cropped up. Hon. Apex
Court holds that the scheme of the 1966 Act gives
importance to the implementation of the sanctioned plan as
it is and only in certain contingencies, the provision
thereunder is permitted to be modified, that too after
following the necessary prescribed procedure. The planning
process under the MRTP Act i.e. 1966 Act is found to be
quite an elaborate process. A number of town planners,
architects and officers of the Planning Authority, and
wherever necessary, those of the State Government
participate in the process. They take into consideration the
requirements of the citizens and the need for the public
amenities. The planners consider the difficulties currently
faced by the citizens, make rough estimate of the likely
growth of the city in near future and provide solutions. The
plan is expected to be implemented during the course of the
next twenty years. After the preparation of draft
development plan, its notice is published in the Official
Gazette under Section 26(1) of the Act with the name of
place where copy thereof will be available for inspection to
the public at large. Copies and extracts thereof are also
made available for sale. The suggestions and objections are
invited. The provisions of the regional plan are given due
weightage under Section 27 of the Act and then the plan is
finalized after following the detailed process under Section
28 of the Act. Hon. Apex Court states that Chapter III of the
MRTP Act on development plans requires the sanctioned
plan to be implemented as it is. It further points out that
there are only two methods to modify the final DP. One
where the proposal does not change the character of the
development plan, it is known as minor modification and the
procedure therefor is laid down under Section 37 of the Act.
The other where the modification is of a substantial nature
as defined under Section 22-A of the Act, the procedure as
laid down under Section 29 is required to be followed. Hon.
Apex Court states that one more analogous provision
though slightly different under Section 50 of the Act is 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. Discussion in judgment
thereafter till paragraph 62 is on minor modifications, its
scope etc. As the Respondents are not alleging any minor
modification here, it is not necessary for us to dwell more on
that part. The Respondents speak of GR dated 4.7.2008 & EP
44 which proposes deletion of reservation for garden & a
provision only for stadium-sports complex & shopping
center. The procedure being followed for modification is via
S.26 to 30 till S.31(1) i.e. of modification of a substantial
nature.
21. Observations of Hon. Apex Court on
modification of a substantial nature are also material. It is
held that Section 39 specifically directs that the Planning
Authority shall vary the TP scheme to the extent necessary
by the proposals made in the final development plan, and
Section 59(1)(a) gives the purpose of the TP scheme viz.
that it is for implementing the proposals contained in the
final development plan. Under Section 31(6) of the Act, a
development plan which has came into operation is binding
on the Planning Authority. The Planning Authority cannot
act contrary to DP plan and grant development permission to
defeat the provision of the DP plan. Hon. Apex Court notes
that a duty is cast on every Planning Authority specifically
under Section 42 of the Act to take steps as may be
necessary to carry out the provisions of the plan referred to
in Chapter III of the Act, namely, the development plan.
Section 46 also lays down specifically that the Planning
Authority in considering an application for permission for
development shall have "due regard" to the provisions of any
draft or any final plan or proposal submitted or sanctioned
under the Act. It is found indicative of a stipulation that the
moment a draft plan is proposed, a permission for a contrary
development can not be granted, since it will lead to a
situation of conflict. Section 52 of the Act provides for
penalty for unauthorised development or for use otherwise
than in conformity with the development plan. Hon. Apex
Court holds that 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. It is in this background that Section 59(2)
is held to be only an enabling provision. Hon. Apex Court
explains that in a given situation a suitable amendment of
the development plan may as well become necessary while
seeing to it that the TP scheme is in consonance with the
development plan. Section 59(2) only means that the
legislature has given an elbow room to the Planning
Authority to amend the development plan if necessary, so
that there is no conflict between the TP scheme and the DP
plan. In fact words that "it shall be lawful to carry out such
an amendment" are held to be employed to convey the
intention that normally such a reverse action is not expected,
but in a given case, if it becomes so necessary, it will not be
unlawful. Use of this phrase is found to show the superiority
of the DP plan over the TP scheme. Besides, the phrase put
into service in this sub-section is only "to provide for a
suitable amendment". Hon'ble Court states that this enabling
provision for an appropriate amendment in the DP plan
cannot, therefore, be raised to the level of the provision
contained in Section 39 which mandates that the Planning
Authority shall vary the TP scheme if the final DP plan is in
variance with the TP scheme sanctioned before the
commencement of the MRTP Act. It also indicates that
subsequent to the commencement of the Act, a TP scheme
will have to be in consonance with the DP plan. It is declared
that Section 59(1)(b)(i) cannot take away the force of the
provision contained in Section 59(1)(a) of the Act. In
present matter, the Respondents before us have not argued
that DP has undergone any modification At the most, their
defence is of permissibility of the shop blocks in periphery of
the stadium structure. But then that defence is not enough
as the reservation of site no. 166 for garden still stands.
Hence, mere fact that proposal EP 44 suggesting deletion of
the said reservation for Garden is pending can not legalize or
regularize the development which is otherwise illegal.
Government's policy decision at State level dated 24.2.2003
& letter dated 10.3.2003 produced as Annex.R-1 by the
Respondent 5 is addressed to Chairman of Respondent 2 i.e.
Collector, Ahmadnagar. It only mentions a policy decision to
permit user of 1/3rd area for commercial purposes to support
the sports & games activities. This decision can not & does
not override DP and can not substitute the statutory
procedure under 1966 Act for effecting the modifications in
DP. Same holds good in regard to the GR dated 8.2.2002.
Observations made by the Hon. Apex Court on obligations of
senior bureaucrats & politicians like C.M. are equally
important & helpful but in the absence of any express plea of
any dereliction of duties on their part, we do not wish to
comment on that angle. Here, it is surprising to note that
Respondent 2 has directly addressed a letter to Hon. Chief
Minister on 31.10.2005 & made grievance against the
Petitioner.
22. ig Letter dated 3.1.2006 sent by Petitioner to
Respondent 2 is signed by its Town Planner, Deputy
Municipal Commissioner as also the Municipal
Commissioner. Its copies are given to Secretary of Sports
Department of the State as also to the Respondent 1 State. It
mentions several meetings between the parties as also large
correspondence. It mentions that on 16.12.2005, there was a
meeting of office bearers of the Petitioner & it was presided
over by the Mayor. Purpose of the meeting was to decide the
future policy of the Petitioner on the development. It also
states that possession of land worth Rs. 18 Crores has been
handed over retaining its ownership for the sports
development of Petitioner. It regrets that Respondent 2
decided to complete the project on FBT basis without taking
Petitioner in confidence & the development is practically
complete. Petitioner has in it demanded 60,000 Sqr. Feet
commercial constructed portion in return for or in lieu of
land. It is urged that Petitioner approved only 57,500 Sq. ft/
commercial development & the agreement in favour of
Developers is for 1,00,000 Sq. Ft. of commercial area. Fact
that the actual commercial development is of 1,40,000 Sq.
ft. i.e. much in excess is also disclosed. Profit of the
developer is also estimated at Rs.22 Crores. This letter also
points out that on part of land a gallery for the spectators &
badminton hall has been constructed in 1982 through the
municipal funds. Need to continue that part in possession &
under control of the Petitioner without any interference by
the Respondent 2 is also expressed. Response from the
Respondent 2 is sought so as to place it before the General
Body of the Municipal Corporation. This letter is obviously &
surprisingly after filing of the present writ petition & it
shows impression of Respondent 2 that it could have
approved the excess construction. Even prayer clause "B-1"
in writ petition is also indicative thereof. This attitude is not
in consonance with the law & challenge then already placed
before this Court. Thus, looking to the facts of this matter,
the provisos to S.45(5) of 1966 Act do not enable the
Respondents to even plead the grant of deemed sanction.
On the contrary, in the light of second proviso to sub-section
(5) of S. 45, it is clear that their construction needs to be
treated as unauthorised one. Defence of deemed sanction or
permission raised by the Respondents is erroneous &
misconceived. Their story is apparently not consistent or
convincing. Moreover as late as on 31.1.2005, the Desk
Officer has asked Petitioner to examine the building plans
submitted by the Petitioner under S. 58 of 1966 Act & it also
militates with the stance of deemed permission. Moreover,
this plan was found deficient & Respondent 2 was
accordingly informed to remove the lacunae on 28.3.2005
with express mention that till compliance as demanded, the
plans can not be considered. Thus the defence of deemed
sanction is liable to be rejected. Contention of Adv. Bhandari
that letter dated 20.10.2005 sent by the Petitioner is the first
disclosure of rejection of building permission on 1.10.2005 is
also irrelevant. Letter dated 20.10.2005 is rejection of
request to issue the occupancy certificate.
23. ig This brings us to consideration of special status
claimed by Respondent No. 2 and claim for exemption due
to or under S. 58 & S.124 F. The construction is being made
by the Respondent No. 5 on FBT basis. Thus, till it transfers
the construction to the Petitioner or Respondent No. 2,
Respondent No. 5 remains the person answerable for
everything. It is not the case of Respondents that Respondent
5 was assured any special treatment or concession in these
matters or then he was not to comply with S.43 or 44 of
1966 Act. This aspect has to be regulated by the terms &
conditions of the advertisement inviting public tenders,
agreements & arrangements between the parties. No such
term or condition is pressed into service by any of the
Respondents. They also do not plead any estoppel. As grant
of exemption under S. 124(F) of 1966 Act for the
development except the commercial part, is not an issue
before us, we are not expressing anything on this subject. S.
58 gets attracted only when the Government intends to
carry out any development for the purpose of any of its
departments or offices or authorities. Here, the State
Government has not even stated that it is carrying out the
development on FP 194 & it also has not informed the
Petitioner accordingly at any time as mandated by its Sub-
section(1). This plea is taken by Respondent Nos. 2 & 5 and
is obviously by way of afterthought i.e. long after 1.10.2001
or 10.11.2001. Desk Officer of Respondent 1 on 31.1.2005
written to the Municipal Commissioner of Petitioner to
scrutinize the plans as per S.58(2)(1) of 1966 Act. This
request was found incomplete & Respondent 2 was called
upon to make amends on 28.3.2005. Respondent No. 2 in its
letter dated 31.10.2005 sent to the Chief Minister refers to S.
58 but it nowhere points out any letter under S. 58(1) by
Respondent No. 1 to Petitioner. Respondent No. 4 in
additional reply affidavit dated 30.7.2012, in paragraph 13
has urged that S.58 does not empower Petitioner to decide
the rights & legality or otherwise of the construction. As the
Respondent No. 5 has been given the right to finance, build
& transfer the stadium, it is obvious that till the stadium is
transferred to & vets in either Petitioner or Respondent No.
2, the Respondent No. 5 remains in charge. Activities of
development undertaken by it do not become the activities
of Respondent 1 State. This facet also can not be finally
decided here due to absence of proper arguments or
assistance from the respective Counsel. In fact while replying
to a Court query on half hearted challenges, latches & equity
etc. learned Senior Advocate candidly confessed to
difficulties faced by him while assisting this Court. S. 43, in
its opening part, expressly uses the word "no person"
thereby taking State Government also within its fold. S. 44
(1) only carves out an exception for Central or State
Government & Local Authorities intending to carry out the
development. Thus, everybody else has to apply for
permission to develop. S. 58(1) also requires the State
Government to apply 30 days prior to date scheduled for
commencement of work for grant of such permission. The
provisions of S. 44 do not prescribe any such time limit since
the law does not normally envisage the commencement of
development without prior permission. However, in case the
work is being undertaken by the State Government itself, its
officer incharge thereof has to apply to the planning
authority. If the planning authority raises any objection, such
officer can either make the desired amends or then submit
the proposal for development with the objections raised by
the planning authority to the State Government itself as per
sub-section 2(ii) of S.58. The State Government may,
thereafter, in consultation with the Director of Town
Planning, approve the proposal with or without
modifications. Sub-section(4) of S. 58 only protects &
furthers this special treatment to State Government by
removing provisions like S.44, 45 or 47 & by modifying S. 46
to bring the same in conformity with scheme of S. 58. It
does not dispense with the scrutiny of the building plan
submitted by such officer by applying the relevant norms.
24. In present facts, we have noted that Desk Officer
of Respondent No. 1 on 31.1.2005 wrote to the Municipal
Commissioner of Petitioner to scrutinize the plans as per S.
58(2)(1) of 1966 Act. This was first such move &
Respondent 2 was called upon to complete the incomplete
proposal vide letter dated 28.3.2005. Respondent no. 2 in its
letter dated 31.10.2005 sent to the Chief Minister refers to S.
58 but it nowhere points out any letter under S. 58(1) by
Respondent No. 1 to Petitioner before 1.10.2001 or
10.11.2001. Respondent No. 2 never approached the State
in terms of S. 58(2) & State also did not take steps under S.
58(3) of 1966 Act. In any case, S.58 does not give license to
anybody including the State to violate the DP settled under
S. 31(1) of the 1966 Act. The special arrangement made via
S. 58 is only to permit the State Government to complete its
project with utmost speed. Therefore only, it requires
submission of such application only one month before the
date scheduled for commencement of actual work &
excludes the need of commencement certificate. This
reliance on S. 58 by the Respondents militates with their
defence of deemed sanction after 60 days as its Sub-section
(4) makes S. 45 itself unavailable to it. This special
treatment & procedure for State Government is carved out
only in public interest & due to confidence reposed (&
inherent) that the State will never flout the mandatory
provisions of 1966 Act and defeat requirements of DP.
Respondents can not plead S.58 in an attempt to justify the
violations of DP. It also needs to be noted that the
Respondent No. 2 has already filed an appeal under S.47 in
the matter. The emerging state of affairs is unsatisfactory &
shows the roving attempts of Respondents to somehow
justify its highhanded actions against the public interest.
Reasons recorded by the Hon. Apex Court while interpreting
S. 59 of 1966 Act in Manohar Joshi vs. State of
Maharashtra (supra) also hold good here. Purpose of
exemption provided to Governments or Local Body from
certain provisions of the 1966 Act is due to faith reposed in
them that they will, at no cost, compromise the DP or any of
their legal obligations. It is this inbuilt faith placed by the
democracy in these institutions of self-governance which
resulted in framing the provision like S.58. This provision or
such provisions can not be construed to enable the
Governments or Local Bodies to disregard the DP & to
undertake or encourage the wanton acts of developers. In
its landmark judgment in Esha Ekta Apartments Coop.
Housing Society Ltd. v. Municipal Corpn. of Mumbai ,
( supra) in paragraph 8, the Hon. Apex Court has
observed--"At the outset, we would like to observe that by
rejecting the prayer for regularization of the floors constructed
in wanton violation of the sanctioned plan, the Deputy Chief
Engineer and the appellate authority have demonstrated their
determination to ensure planned development of the
commercial capital of the country and the orders passed by
them have given a hope to the law-abiding citizens that
someone in the hierarchy of administration will not allow
unscrupulous developers/builders to take law into their hands
and get away with it." S. 58 does not derogate from the
otherwise complete scheme of 1966 Act or does not dilute it.
25. The next question is whether the development in
contravention of DP can be regularized or condoned.
Pendency of EP 44 before the State Government is not in
dispute & there are no prayers for its expeditious disposal by
anybody. Time being spent prejudices general public as the
construction in blatant breach of law continues & may
encourage the others to follow the footsteps. It is bound to
help Respondent No. 5 as it/he has inducted the occupants,
obviously not free of charge. It has not brought on record
the agreements subject to which the occupants have been
introduced in the stadium or shopping plazas A & B. None of
the parties before us have also shown that much diligence &
have assisted & permitted Respondent 5 to continue to earn.
Even no directions to disclose the names of occupants or to
file the accounts periodically are obtained. Recent judgment
of Hon'ble Apex Court in Esha Ekta Apartments Co-
operative Housing Society vs. Municipal Corporation of
Mumbai (supra) clinches the law on regularization of such
developments & it lays down that an analysis of the
provisions of 1966 Act makes it clear that any person who
undertakes or carries out development or changes the use of
land without permission of the Planning Authority is liable
to be punished with imprisonment. At the same time, the
Planning Authority is empowered to require the owner to
restore the land to its original condition as it existed before
the development work was undertaken. The scheme of these
provisions does not mandate regularization of construction
made without obtaining the required permission or in
violation thereof. While rejecting the arguments of occupants
for leniency, Hon. Court also concluded that the flat buyers
had consciously occupied the flats illegally constructed by
the developers/builders. In this scenario, the only remedy
available to them was held to be to sue the lessee and the
developer/builder for return of the money and/or for
damages and they cannot seek a direction for regularization
of the illegal and unauthorised construction made by the
developers/builders. Here also it was duty of the occupants
to verify the sanctions & then only to buy or book. The
relevant records could have been inspected by them in the
office of Petitioner or Respondent Nos. 2 or 5. If assertions of
all the parties before this Court are correct, then none of the
occupants has paid either the occupation charges or taxes.
The deviation from the sanctioned plan while providing shop
blocks in peripheral wall of the structure of stadium itself
may call for a little different perspective. But two buildings A
& B of shopping plazas have come up at a place to be left
either open to sky or then for parking,fountain etc. Need of
huge parking space for a stadium with seating capacity of
40,000 spectators can not be overlooked & Respondents
have not pointed out any alternate arrangements made by
them for parking. They have increased the number of shop
blocks and by adding the shopping plazas, added to the
chaos. Obviously they have loaded public roads or lands in
vicinity with the burden of that parking. By placing reliance
upon CA 10151 of 2009, Shri Mantri, the learned Counsel
has urged that about 5285 Sq. Mtrs. of open space is
available for parking. However, said space is not shown to be
part of the project or development undertaken by the
Respondent 5. Respondents 2, 3 & 4 who must & ought to
have realized the problem also conveniently turned a
nelson's eye. Petitioner as also respective Respondents Nos. 1
to 4 by observing silence assisted the cause of Respondent
No. 5. It is difficult to accept submission of Adv. Mantri that
Respondent No. 5 is also not in position to recover any
amount from the occupants. If occupants are really not
paying anything, neither in law nor in equity, they deserve
any consideration. Here, the original reservations are on two
different sites and for two mutually exclusive purposes. Now,
the effort of Respondents No. 2 to 5 is to eliminate entire
reservation for Garden & to club both sites together for
supporting the development of stadium, sports complex &
shopping center. EP 44 is aimed at this purpose but then
State Government could not clear it till date. Hence, said
modification is not legally in existence today and can not
support the unauthorised illegal deviations of the
Respondents. Current user contrary to law also can not
continue. Commissioner of Municipal Corporation, Simla
vs. Prem Lata Sood & Others (supra) is the other leading
Apex Court judgment which shows that when the law is
breached & statutory restrictions are overlooked, there is no
question of deemed sanction. It also shows that a vested
right can not be taken away, because the amendment
proposal is in offing. Division Benches of this Court in
Ghanshyam Chandumal Harwani vs, State Of
Maharashtra (supra) & Vithal Ramchandra Devkhar vs.
State of Maharashtra (supra) again follow these principles
only. The expectations of wrongdoers that their leaders will
dilute law again & again must be nipped off in bud.
Politicians can not, on one hand take steps in larger public
interest & make laws to redress the mischief i.e. for proper
development of towns and then, on the other hand, kill that
legislation by misusing their positions. Acceptance of such a
course of conduct by Courts will legalise the backdoor
breaches & violations of DP & result in a sick democracy in
every sense. This is high time to note that neither the highest
politician nor the top bureaucrat is above law & must obey
it. Bureaucrats are bound to implement the law & policy.
They will be right & must be strong enough to refuse to tow
the line of such leaders & influential builders. If they lack
this courage, they are unfit to hold the responsible positions
which they occupy & in process, also disrespect the law of
the land. Such dereliction of the duties on their part can
never be countenanced & must be sternly dealt with. In
view of clinching precedents of the Hon'ble Apex Court on
the controversy, it is not necessary to deal with the
judgments of this Court. Inevitable conclusion is
regularization or compounding of the illegal development in
present matter is not possible. Hence, pendency of an appeal
u/S. 47 by Respondent no. 2 is of no consequence. It can
also be noted here that the appeal has been filed only to
prolong the life of & avoid action against the development
in dispute. None of the Respondents have seriously
prosecuted it. Pending arbitration proceedings also have got
no bearing on the controversy involved in this petition.
26. The land of final plot no. 194 i.e. reservation site
165/166 is public property. Petitioner Municipal Corporation
can not claim any exclusive right to deal with it or to earn
out of it. Legally, it can not claim any prejudice if the sites
are put to legitimate use. The vesting of stadium or sports
center or power to control it, whether with the Petitioner or
the Respondent No. 2, cannot in these facts be construed as
an unforeseen eventuality. Petitioner was aware that the site
is to be developed for stadium-sports center and also agreed
to its development by Respondent 2. Not only this it was
aware of the fact that Respondent 2 was not developing any
garden. It still granted the sanction to the building plan on
1.10..2001 and then granted the revised permission on
10.11.2001. In this situation, merely because it did not sign
MOU or then it did not accept the condition no. 5 of the
model terms prescribing that the control over such stadium
& sports center has to vest with Respondent No. 2, it can
not oppose the development. Facts noted by us above also
show that Petitioner was aware of the type, nature or extent
of construction activities going on at the spot. Before this
Court, effort has been made to show that the Petitioner
became aware of the existence or role of Respondent No. 5
developer only on 12.9.2007 and hence, on that day, with
the leave of this Court, Respondent No. 5 came to be
impleaded. This Writ Petition with prayers A to D came to be
filed on 6.6.2005 while Prayers B1 to B6 came to
incorporated as per Court orders dated 4.7.2012. Petitioner
did not even attempt to seek any effective orders till
12.9.2007. Our comments on orders of this Court dated
12.9.2007 and the state of affairs have already come on
record. The stand of Petitioner that it was not aware of
Respondent No. 5 is clearly false. Inspection report of the
structure in dispute dated 3.12.2004 filed on record is
prepared by its town planner after spot visit on 22.11. 2004.
It mentions details of unauthorized developments like
building A & B, without permission modifications in few
sectors of the stadium. It also mentions name of Respondent
No. 2 as person on whose behalf the development was being
carried out. It also contains the name of M.R. Mutha as the
developer. Copy of Reminder 3 dated 11.6.2004 sent by
Respondent no. 2 to Petitioner is on subject of grant of
permission to buildings A & B at the earliest. Copy of this
reminder is sent by Respondent No. 2 to its architect and
also to said Mr. M.R. Mutha- Respondent No. 5. These
documents & contents thereof are not in dispute.
27. Respondent No. 2 has while inviting tenders
has also used the words "and repair to existing &
development of a shopping plaza". Work order given to
Respondent No. 5 is dated 1.11.2003. The agreement
between Respondents No. 2 & 5 also reveals mentions of a
six sectors in stadium for shopping against entry 3 -
Shopping & Stadium while describing the details & scope of
work. Against entry 13 dealing with Shopping Plaza (Plot A
& B) it is stated that the designs of the commercial buildings
on plots A & B are to be provided for by the Respondent No.
5 & Respondent No. 2. Further stipulation shows that the
same is to be approved by the local authority i.e. Petitioner
subject to compliance with DC Rules. Petitioner, admittedly
is not signatory to this document & it never made any
attempts to obtain its copies from the concerned
Respondents. It also has not attempted to urge that while
inviting tenders from the public at large, these shopping
plazas were not pointed out and other aspirants, therefore,
could not evaluate possibility of said commercial
exploitation while submitting their offers. Respondent No. 2
appears to have published the tender invitation on
17.6.2003 & surprisingly its letter dated 12.7.2002
addressed to Respondent No. 5 speaks of CSD i.e. Common
Set of Deviations. Shopping plazas at plots A & B find
mention in this document. This letter is at record page 282.
CSD document itself mentions doubts raised in pre-bid
meeting held on 11.7.2003.Copy of said work order dated
1.11.2003 at record page 237 states that it is in furtherance
of the concession agreement dated 7.9.2004 entered into
between the parties. Handwritten endorsement on this work
order shows that certified copy of volume 1 & 2 of bid
document were enclosed with it. This endorsement is signed
by the Secretary of the Respondent No. 2 & there is
overwriting or correction while mentioning the month in the
date placed below this signature. Not only this, neither the
Petitioner nor any of the Respondents have thought it fit to
point out how the booking for proposed shops was done by
the Respondent No. 5. Did it publish any advertisements or
circulate any brochure or leaflets! Has Respondent No. 5
entered into any agreements with the customers who booked
the shops or whether the same are countersigned by
Respondent No. 2! are the crucial aspects which needed
disclosure, if Petitioner wanted to point out any injury to
itself. It has not even bothered to demand the copies of those
agreements and did not even choose to levy any tax on the
commercial structures. It could have obtained orders from
this Court to procure these details, documents and recovered
tax. The Petitioner did not approach this Court immediately
to stop the further construction, came without impleading
Respondent No. 5. Its role appears to be dubious as on
3.1.2006, its three top officers wrote an inconsistent letter to
Respondent No. 2. They thought it convenient to overlook
the mandate of DP at that juncture. Then by obtaining an
order of status quo almost two years after filing of writ
petition, Petitioner obliged none else but Respondent 5.
Respondent Nos. 2 & 5 have invited our attention to some
more letters sent by Petitioner to expose its double
standards. However, we do not find it necessary to deal with
the same. Petitioner did not carry out any inspections after
12.9.2007 & did not collect data relating to occupiers. Its
earlier resolutions show demand for share in profits of
Respondents No. 2 or 5 or then demand of 25% of the shops
constructed. Thus the Chief Officers & Presidents of the
Municipal Council, The Municipal Commissioners & The
Mayors of the Petitioner Corporation. Incumbents holding
the posts of Secretary & Chairman of the Respondent No. 2
& the Collectors of Ahmadnagar have not acted in good faith
or with due diligence with a view to protect the public
property & revenue. The Respondents No. 2, 3 & 4 have also
not attempted to sort out the issues or differences with
Petitioner before issuing work order to Respondent No. 5. All
the Respondents were acting with some haste, obviously
undue in such maters. We also find it interesting to note that
the Respondent no. 2 addresses representation or grievance
directly to the Hon. Chief Minister. Thus, there are some
aspects which may necessitate a proper investigation. Parties
before this Court, by their deliberate inaction, permitted the
illegal, unwarranted use & exploitation of public property.
Petitioner did not file a proper writ petition & its half-
hearted plea and prayers show only a face saving effort.
Respondents also followed the suit. Thus, the process of this
Court appears to be abused with ulterior motives jointly by
the parties to confer undue benefits upon the developer
Respondent 5. A stringent action needs to be taken against
all these office bearers or officers and their estate to
discourage its repetition in future. Responsibility for proper
compliance and due completion of the exercise needs to be
placed on shoulders of the Divisional Commissioner of the
Revenue Division in which Petitioner Corporation is situate.
Similarly, no leniency can be shown to those who are in
occupation of shops in buildings i.e. commercial plazas A &
B. They ought to have verified the sanction & approval by
visiting the office of Petitioner and then parted with the
consideration or premium. We therefore find it expedient to
issue the following directions to the said Divisional
Commissioner.
28. We direct said Divisional Commissioner to
nominate a suitable officer below him to first complete the
exercise of verification of names and addresses of the
occupants in possession of the shop blocks in Stadium
structure as also in buildings of shopping plazas on plots A &
B. This exercise shall be completed within six weeks from
today. Thereafter, said Divisional Commissioner shall
proceed to place seal on the shopping plazas A & B within
next two weeks. The occupants in possession of the any of
the shop blocks in structure of the Stadium or the two
buildings of shopping plazas on plots A & B due to any
grant, license or allotment in their favour by any of the
parties to this litigation, either directly or indirectly, shall file
details of the arrangement or agreements in their favour
with the proof of payment made in the office of the
Divisional Commissioner in the meanwhile. After the seal as
above is put, the Divisional Commissioner shall wait for
further period of six weeks & shall, thereafter, if there are no
restraining orders or any orders to the contrary by the Hon.
Apex Court, proceed to demolish the two buildings of
shopping plazas on plots A & B as per law & attempt to
complete the same within next three months. No elected
representative politician or the bureaucrat shall in any way
attempt to influence the said Divisional Commissioner or any
officer acting under his orders or under any provision of Law
to accomplish this. Any such attempt shall be treated as
contempt of this Court. To enable the office of the concerned
Divisional Commissioner to undertake this exercise, we
direct the Petitioner, Respondent no. 1,2,3 to deposit an
amount of Rs. 5 Lac each with the office of said Divisional
Commissioner within 3 weeks from today. We direct the
Petitioner to deposit amount of Rs. 10 Lac & Respondent No.
5 to similarly deposit the amount of Rs. 15 Lac with the
office of the Divisional Commissioner. If the Respondent No.
5 does not deposit said amount accordingly, Divisional
Commissioner shall also put seal on its corporate office
immediately on expiry of said period. Non-deposit by others
shall not enable the said Divisional Commissioner to delay or
postpone the exercise as directed. . However, the non-
deposit shall render the party in default viz. the present
Municipal Commissioner of Petitioner, present Secretary &
Chairman of Respondent No. 2 for consideration of suitable
action under the Contempt of Courts Act. If the Divisional
Commissioner needs more funds for said purpose, the same
shall be made available to him by the parties named above
in very same proportion & ratio within 2 weeks of the receipt
of such demand. Same consequences shall ensue in its
default. We fasten the duty of pointing out any non-
compliance with these directions upon the incumbent
functioning as Divisional Commissioner.
29. We are sure that the original records in this
matter may be required to fasten the personal
responsibilities on individuals who at the relevant time
were/are at the helm of affairs in Petitioner, Respondents no.
2, 3 & 4. We can legitimately presume that said records are
properly preserved by the responsible officers of the State
Government & other concerned public bodies. However, the
Divisional Commissioner shall ascertain this aspect also
within 4 weeks from today & file suitable affidavit of its
responsible delegate on the record of this writ petition
immediately thereafter. He shall also ascertain the names of
all officers, office bearers and other influential persons who
may have dealt with the matter or files while working in any
capacity with the Petitioner, Respondents no. 2, 3 & 4.
Simultaneously, he shall also nominate an officer to conduct
a preliminary inquiry in to the lapses and acts of omissions
or commissions against all such officers, office bearers to
find out their culpability, if any. The name of officer
nominated for this purpose shall also be reported to this
Court within 4 weeks from today. The officer so nominated
shall complete the preliminary inquiry against all concerned,
whether in service or not, retired or deceased, ignoring the
bar of limitation, if any and submit his report to the
Divisional Commissioner within further 3 months. The
Divisional Commissioner of the Revenue Division in which
Petitioner Corporation is situate shall then, within next two
weeks, forward the said report to competent authorities
functioning as disciplinary authorities in relation to the
respective employees/office bearers as also to the competent
authority under the Bombay Act No. XXV Of 1930 i.e. The
Bombay Local Fund Audit Act, 1930, or the other relevant
local fund audit enactment to determine the culpability &
quantum of punishment &/or recovery as per law. An
affidavit that it has been so forwarded shall be filed within
two weeks by his responsible delegate alongwith copy of
said report on the record of this writ petition.
30. We hope that the State Government is serious
about proper & effective implementation of 1966 Act & not
in creating the situations or finding out the excuses to
condone its violations. To avoid the repetition of such
abuses & misuses in future, we direct the State Government
to consider providing of a website where all the sanctioned
building plans & lay out plans will be displayed at the cost
of the concerned builder or developer by the Planning
Authorities or other authorities sanctioning the building
plans or development plans or the layouts on lands. The
grant of permission to develop should not come in to effect
till such authorities place the duly approved plans/maps on
such site. State Government shall also ensure that no
development is commenced & no builder or developer can
even advertise the scheme or start the booking &
construction without such plan being first uploaded on
website. Name of an individual having adequate interest &
stake in the project to be held personally responsible for any
lapse or omission or violations on part of the developers
shall be mentioned on the plan/map submitted for seeking
the sanction & shall also be contained in the advertisement
or brochure or literature circulated by the developers.
31. In so far as shop blocks and other violations in
the peripheral wall of Stadium are concerned, the Petitioner
shall explore the possibility of its regularization if the same
do not in any way militate with the sports activities & user of
stadium as sports center. An application for said purpose will
be moved jointly by the Respondents No. 2, 3 & 4 alongwith
respective occupants complying with the above directions
within 6 weeks from today. The applicants shall agree to
remove within 6 weeks of the intimation of the decision on
such application, such part of the construction as is found
not sustainable by the Petitioner. Such of the occupants who
do not apply or qualify to so apply shall handover the
possession of their premises to the Divisional Commissioner
within said six weeks. If Petitioner finds that regularization
is feasible, it may undertake said exercise on such terms and
conditions as it may deem expedient and conducive to
progress of sports activities. It shall complete said exercise
within period of four months from receipt of the application
stipulated above.
32. We accordingly partly allow this writ petition by
making the Rule absolute in terms of the directions issued
above.
33. Though with these directions and by this
judgment, the writ petition is being disposed of, we grant
parties liberty to move necessary applications in this
disposed of matter to secure effective time bound
compliance with the directions issued.
34. C.A. No. 7338 of 2012 stands disposed of.
(RAVINDRA V. GHUGE) (B.P. DHARMADHIKARI)
JUDGE JUDGE
dragon/
bgp/
