Bombay High Court
Mrs. Prabha Jain And Ors vs The Commissioner, Pune Municipal ... on 5 December, 2016
Bench: Ranjit More
WP 7946.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7946 OF 2014
Mrs. Vandana Singh, ]
Age- Adult Occ-Service ]
Through Power of Attorney holder ]
Mr. Mitesh Ved, ]
Age-Adult, Occ-Service ]
R/at-714, A wing, Swapnlok Apartment, ]
Mogra Lane, Andheri (E), Mumbai - 64. ]...Petitioner
versus
1. The State of Maharashtra, ]
Through Principal Secretary, ]
Urban Development Department; ]
Having its office at - ig ]
Mantralaya, Mumbai. ]
2. The Commissioner, ]
Pune Municipal Corporation, ]
Having its office at ]
PMC Building, Shivajinagar, ]
Pune 411 005. ]....Respondents
along with
WRIT PETITION NO. 1335 OF 2016
Mrs. Vandana Singh, ]
Age- Adult Occ-Service ]
Through Power of Attorney holder ]
Mr. Narendra Pratap Singh, ]
Age-Adult, Occ-Service ]
R/at-B/4, Radhika Empress, Jagtap Nagar, ]
Wanowrie, PUNE - 411 040. ]....Petitioner
versus
1. The State of Maharashtra, ]
Through Principal Secretary, ]
Urban Development Department; ]
Having its office at - ]
Mantralaya, Mumbai. ]
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2. Pune Municipal Corporation, ]
Having its office at ]
PMC Building, Shivajinagar, ]
Pune 411 005. ]....Respondents
along with
WRIT PETITION NO.8717 OF 2016
1) Mrs. Prabha Jain, Age - Adult, Occ: Business ]
Building/Unit No.A11/303, Anusaya Enclave, ]
Opp. Shinde Chhatri, Wanawari, Pune 411002 ]
2) Khemraj Maniraj Thakulla, Age-Adult, ]
Occ - Service, Building/Unit No.A/204, 2nd ]
Floor, Golden Dreams, Gondhak Nagar, ]
Hadapsar, Pune 411028. ]
3) Bhupinder Singh Arora, Age-Adult,
Occ - Asst. Engineer Building/Unit No.A/1101
]
]
R/at 1-B, Dr. Coyaji Road, Camp, Pune 411001 ]
4) Rahul Shankar Zope, Age-Adult, Occ: Adult, ]
Occ: Lead Engineer, Building/Unit No.B/1102 ]
R/at 56/57, Hadapsar Industrial Estate, ]
Pune 411013 ]
5) Aateka Khan, Age-Adult, Occ-Lecturer ]
Building/Unit No.C/311, R./at 783/48, ]
Bhagwandas Chawl, Bhawani Peth, ]
Pune - 42. ]
6) Shaikh Muhammed Raffique, Age-Adult, ]
Occ-Retired, Building/Unit No.C/107, R/at ]
589, Nana Peth, Kas Chambers, 2 nd floor, ]
Pune 411042. ]
7) Abdul Kadir Ali Alvi, Age- Adult, Occ-Logistic ]
Supervisor, Building/Unit No.D/706 ]
Rat-C/o. Wahida Parkar, Silver Estate ]
Housing Society, B2/102, Nibm Road, ]
Kondhwa, Pune. ]
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8) Mohmad Arif Nasir Shaikh, Age-Adult, ]
Occ-Business, Building/Unit No.A/1103, ]
R/at-922, Kagdipura, Kasbapeth, Pune 11. ]
9) Abhijit Dayaneshwar Tambade, Age-Adult, ]
Occ-Finance Exe. Building/Unit No.C/4-09, ]
R/at-G-9, Kumar Park, Bibewadi, Kondhwa ]
Road, Pune 411037. ]
10) Sachin Nimbalkar, Age-Adult, Occ-Project ]
Manager, Building/Unit No.B/203, R/at. B1/ ]
301, Anita Residency, Kondhwa Road, ]
Katraj, Pune. ]
11) Rohit Raosaheb Ghatge, Age-Adult, ]
Occ-Service, Plot 13, Radha Krishna Colony ]
Panchgaon Back to Martoshri Vrudha
ig ]
Ashram, Kolhapur ]
12) Pramod Suresh Yewale, Age-Adult, ]
Occ-Service, Building 1/Unit No.16, Ganesh ]
Aradhana, S No-29, Chaitnya Nagar, ]
Dhankawadi, Pune 411043 ]
13) Sandip R. Joshi, Age-Adult, Occ-Service, ]
Building / Unit No.B/802, R/at-B-1-4, Sahil ]
Sarvadha, Sr.No.38/5B, Near Nedw Kondhwa ]
Police Station, Pune 411048. ]
14) Ratnakar Shridhar Kaveeshwar, Age-Adult, ]
Occ-Service, Building/Unit No.10, Madhav ]
Prasad Apartment, Postal and Telephone ]
Colony, Trimak Road, Nasik. ]
15) Anjum Jabbar Momin, Age-Adult, ]
Occ-Service, Building/Unit No.10, 2nd Floor, ]
852, Bhawani Peth, Pratham Chamber, ]
Pune - 411042 ]
16) Irfan Ayyub Momin, Age-Adult, Occ-Business ]
Building/Unit No.C/502, R/at - 852, Bhawani ]
Peth, Ratan Chamber, Pune ]
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17) Zarin Javed Shaikh, Age-Adult, Occ-Service ]
Building 4/Unit No.504, R-Euphoria, Opp. ]
Talab Colony, Kondhwa, Budruk, Pune-48. ]
18) Rajnish Harwani, Age-Adult, Occ-Advocate ]
Building/Unit No.B/503, R./at-A-3/203, ]
Kumar Palmgrove, Opp. Sai Service Station, ]
Kondhwa, Pune 411048 ]
19) Ashok Sadashiv Mokashi, Age-Adult, ]
Occ-Clerk, Building/Unit No.D/106, R/at - ]
Navrang Society, Shivshambhu Apartment, ]
S.No.3718, Dhanakawadi, Pune - 43. ]
20) Vitthal Sadashiv Mokashi, Age-Adult, ]
Occ-Business, At Post Bhivandi Taluka ]
Purandar, Dist. Pune.
21) Nivrutti Suresh Godase, Age-Adult,
Occ-Asst. Manager, 45/7, Shivkrupa Building
]
]
Shila Vihar Colony, Paud ]
22) Prerana Ravi Bhalla, Age-Adult, Occ-Business ]
Building/Unit No.A.702 R/at - Flat No.402, ]
Prakash Uday, Behind Katraj Dairy, Bharti ]
Vidya Peeth, Katraj, Pune 411048 ]
23) Himanshu Satishkumar Patel, Age-Adult, ]
Occ- Service, Building 9/Unit No.902, ]
R-Euphoria, Opp-Talab Colony, Kondhwa, ]
Budruk, Pune - 411048 ]
24) Ramakant Govindrao Salvi, Age-Adult, ]
Occ-Service, 10-Memory Garden, Nibm Road ]
Kondhwa, Pune - 411 048. ]
25) Nagendra Pratap Badri Singh, Age-Adult, ]
Occ-Business, Ganga Dham Society Building ]
D, Flat No.103, Phase-I, Market Yard, Pune ]
26) Sikandar Allaudin Shaikh, Age-Adult, ]
Occ-Business, Flat No.C-8, Kumar Park ]
Kondhwa Road, Bibwewadi, Pune 411037 ]
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27) Indresh R. Tiwari, Age-Adult, Occ-Business ]
D2/404, Cita Del Enclave, C.H.S., B.T. Kawade ]
Road, Ghorpadigaon, Pune - 411001 ]
28) Rizwana Asad Killedar, Age-Adult, ]
Occ-Housewife, Building/Unit No.C/209, ]
R/at-F/202, Ganga Savera, Off Shivarkar ]
Road, Wanwadi, Pune 411040. ]
29) Rizwana Asad Killedar, Age-Adult, ]
Occ-Housewife, Building/Unit No.C/209, ]
R/at-F/202, Ganga Savera, Off Shivarkar ]
Road, Wanwadi, Pune 411040. ]
30) Moses B. Lobo, Age-Adult, Occ-Service, ]
Building B/5, F/15, Kubera Garden, ]
NIMB Road, Kondhwa, Pune - 48. ig ]
31) Moses B. Lobo, Age-Adult, Occ-Service, ]
Building B/5, F/15, Kubera Garden, ]
NIMB Road, Kondhwa, Pune - 48. ]
32) Alpana Pandey, Age-Adult, Occ-Service, ]
Building No.G/702, P.O. Box 9570, ]
Doha Qatar ]
33) Bahar Kiran Dhairyawan, Age-Adult, ]
Occ-Service, Building No-S/Unit No.19, ]
Kubera Colony, NIMB Road, Pune. ]
34) Vijay Madhukar Aiwale, Age-Adult, ]
Occ-S/W Engineer R/at - Flat No.303, B-1 ]
Wing, Welcome City Society, Lane No.6, ]
Sukhsagar Nagar, Part-II, Katraj Pune 46 ]
35) Neelam Ranvijay Singh, Age-Adult, ]
Occ-Service, Plot No.507, 1st Floor, Ponama ]
Gate, Old Town Bhuneswar, Dist Khurda ]
759010.
36) Vanaram Manaji Choudhary, Age-Adult, ]
Occ-Service, C/P Prabhat Sweets, ]
Bhagyodha Nagar, Galli No.3, Kondhwa, ]
Khurd, Pune 411048. ]
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37) Ravi Harish Bhalla, Age-Adult, Occ-Builder ]
Building/Unit No.G/702, R/at=Flat No.402, ]
Prakash Uday, Behind Katraj Dairy, ]
Bharti Vidya Peeth, Katraj, Pune 411048. ] ... Petitioners
versus
The Commissioner, ]
Pune Municipal Corporation, ]
Having its office at ]
PMC Building, Shivaji Nagar, ]
Pune 411 005. ]...Respondents
Mr. G. S. Godbole,advocate i/b. Mr. Drupad Sopan Patil, advocate for the
petitioner in writ petition No.7946 of 2014 and writ petition No. 1335 of
2016.
Mr. G. S. Godbole, advocate i/b. Mr. Sumit S. Kothari, advocate for the
petitioners in writ petition No.8717 of 2016.
Mr. A. M. Kulkarni along with Mr. Akshay Shinde, advocate for the
applicant in civil application No.2957 of 2015.
Mrs. M. P. Thakur, AGP for the State.
Mr. A. A. Kumbhakoni, senior counsel along with Mr. Abhijit
Purushottam Kulkarni along with Mr. Manoj Badgugar, advocate for
respondent No.2.
CORAM : RANJIT MORE &
ANUJA PRABHUDESSAI, JJ.
DATE OF RESERVING : 5th OCTOBER, 2016.
DATE OF PRONOUNCEMENT : 5th DECEMBER, 2016.
Oral Judgment : (Per Ranjit More, J.)
Rule. Rule is made returnable forthwith and the petitions
are heard finally by consent.
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WP 7946.14
2. Heard Mr. Godbole, learned counsel for the petitioners,
Mr. Kumbhakoni, learned senior counsel for the Corporation and
Mrs. M. P. Thakur, learned AGP for the State.
3. The petitioners in writ petition Nos.7946 of 2014 and 8717
of 2016 seeks to challenge the order/minutes of the meeting dated
14th July, 2014, to the extent of allotting land of amenity space
admeasuring about 4000 square meters out of the land bearing survey
No.30 situated at village- Kondhwa, Budruk, Pune, for the purpose of
crematorium. The challenge is mainly on the ground that since the said
decision is taken without hearing the petitioners, the amenity space
cannot be allotted for the purpose of crematorium and there is no
sanction of the Municipal Corporation for the said decision. The
respondent - Corporation by filing affidavits in writ petition No.7946 of
2014 justified the impugned decision. During the pendency of writ
petition No. 7946 of 2014, the Corporation passed resolution No.45
dated 20th April, 2015, granting permission for development of
crematorium on the said plot under Section 321 of the Maharashtra
Municipal Corporations Act. The petitioner in writ petition No.7946 of
2014, thereafter, filed a fresh writ petition No.1335 of 2016 challenging
the said resolution of the Corporation dated 20th April, 2015.
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4. The land bearing survey Nos. 31/3, 30/7, 30/2B/2 situate
at village - Kondhwa, Budruk, Pune, is owned by M/s. Kumar Builders.
The said Kumar Builders submitted proposal for amalgamation of the
said lands to Pune Municipal Corporation. Pune Municipal Corporation
sanctioned the said layout for amalgamation on 19 th April, 2010 and
thereafter, building plans were sanctioned on 27 th May, 2011. As per
regulation No.M-6.8(b)(iii) of the Development Control Rules for Pune
Municipal Corporation, the developer is required to provide for 20% of
the land for public utility and amenities in case of areas under industrial
zones for which residential user is permitted.
5. It is the case of the petitioners that the developer
accordingly has made provision in the said sanctioned plan dated
27th May, 2011, as well as revised plan dated 22 nd February, 2013, for
amenity plot admeasuring 6265.314 square meters. The case of the
Corporation is that the developer was supposed to handover an area of
10964.304 square meters towards amenity space as per the sanctioned
layout plan for the said land. However, the developer has handed over
only an area of 6265.314 square meters and the balance area is yet to
be handed over to Pune Municipal Corporation. The petitioners in the
above petitions claim to have purchased flats in the buildings
constructed on the said land by M/s. Kumar Builders. It is the case of
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the petitioners that the property under development is situated in
residential zone and, therefore, they opted to purchase the flats in the
said buildings. The petitioners, thereafter, got knowledge about the
meeting dated 14th July, 2014 convened by the Municipal Commissioner
for designating the said amenity plot for crematorium and for vehicle
depot of encroachment department. As stated above, the petitioners
being aggrieved by the said decision, initially filed writ petition Nos. 7946
of 2014 and 8717 of 2016, and after the resolution was passed by the
Corporation, the petitioner in writ petition No.7946 of 2014 filed writ
petition No.1335 of 2016.
6. Mr. Godbole, learned counsel for the petitioners,
submitted that the plot of land designated for crematorium is situated
in residential zone and the buildings constructed on the adjoining land
are used for residential purpose and this fact has not been taken into
consideration by the Corporation while taking the impugned decision.
He also submitted that the Corporation neither invited any objections
nor gave notice to the residents in the vicinity before taking the said
decision. Mr. Godbole further submitted that the amenity plot cannot
be allotted for the purpose of crematorium. In this regard, he relied
upon provisions of sub-section (2) of Section 2 of the Maharashtra
Regional and Town Planning Act, 1966 (for short "the MRTP Act") as well
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as regulations M-6.8(b)(iii) and 13.8(M)(II) of the Development Control
Rules. Mr. Godbole also relied upon the decision of the Apex Court in
Godrej and Boyce Manufacturing Company Limited versus State of
Maharashtra and ors. 2009(5)SCC 24 to contend that crematorium is
not amenity within the meaning of sub-section (2) of Section 2 of the
MRTP Act.
7. Mr. Kumbhakoni, learned senior counsel for the
Corporation, opposed the petitions vehemently. He submitted that the
developer has executed a registered document on 18 th/26th June, 2013.
Thereby the property in question is transferred in favour of Pune
Municipal Corporation. Subsequently, possession of this area was also
given to the Corporation by executing possession receipt dated 18 th June,
2013. Mr. Kumbhakoni asserted that the amenity space can be very well
utilized for the purpose of crematorium. Mr. Kumbhakoni relied upon
the provisions of Section 63 and 321 of the Maharashtra Municipal
Corporations Act (for short "the Corporations Act") to contend that the
impugned decision cannot be faulted with.
8. In order to appreciate the controversy raised in the
petitions, reference is required to be made to the relevant provisions of
the Maharashtra Municipal Corporations Act, the Maharashtra Regional
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and Town Planning Act, 1966 and the Development Control Rules.
Section 63 of the Corporations Act reads as under :
"63. Matters to be provided for by the
Corporation :
It shall be incumbent on the Corporation to make
reasonable and adequate provision, by any means or
measures which it is lawfully competent to it to use
or to take, for each of the following matters, namely ;-
(1).......
(11) the maintenance, change and regulation of
places for the disposal of the dead and the provision
of new places for the said purpose and disposing of
unclaimed dead bodies;"
Section 321 of the Corporations Act reads as under :
"321. Provision of new places for disposal of the
dead.
(1) If the existing places for the disposal of the
dead shall at any time appear to be insufficient, or if
any place is closed under the provisions of Section 323,
the Commissioner shall, with the sanction of the
Corporation, provide other fit and convenient places
for the said purpose, either within or without the City,
and shall cause the same to be registered in the
register kept under Section 320, and shall deposit in
the municipal office, at the time of registration of each
place so provided, a plan thereof showing the locality,
extent and boundaries of the same and bearing the
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signature of the City Engineer.
(2) All the provisions of this act and the rules and
bye-laws shall apply to any place provided under sub-
section (1) without the City and vesting in the
Corporation as if such place were situate within the
City."
Section 2 of the MRTP Act reads as under :
"2. Definitions:- In this Act, unless the context
requires, -
(1)......
(2) "amenity" means roads, streets, open spaces, parks,
recreational grounds, play grounds, sports complex,
parade grounds, gardens, markets, parking lots,
primary and secondary schools and colleges and
polytechnics, clinics, dispensaries and hospitals, water
supply, electricity
supply, street lighting, sewerage, drainage, public works
and includes other utilities, services and
conveniences;]"
The relevant port of Regulation No.M6.8(b)(i)reads as
under :
"(i) The conversion of Industrial Zone to
Residential/Commercial Zone in respect closed
industries shall not be permitted unless NOC from
Labour Commissioner, Maharashtra State, Mumbai
stating that all legal dues have been paid to the
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workers or satisfactory arrangement between
management and workers have been made, is
obtained.
However, in respect of any open land in the industrial
zone, where industry never existed, NOC from Labour
Commissioner is not required."
The relevant port of Regulation No.M6.8(b)(ii)reads as
under:
"(ii) The layout or sub division of such land
admeasuring about 2.00 Ha., shall be approved by the
Commissioner, who will ensure that 5% land for
public utilities and amenities like electric sub-station,
bus-station, sub-post office, police out post and such
other amenities, as may be considered necessary, will
be provided therein."
The relevant port of Regulation No.M6.8(b)(iii)reads as
under:
"(iii) In such layouts or sub-divisions having area more
than 2 ha. but less than 5 ha.,20% land for public
utilities and amenities like electric sub-station, bus
station, sub-post office, police out post, garden,
playground, school, dispensary and such other
amenities shall be provided. Provided that at least
50% of this land shall be reserved for unbuildable
reservations such as Garden, Recreational ground
etc."
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Admittedly, the developer has executed registered
document and transferred the property in question (amenity area
admeasuring about 6265.314 square meters) in favour of Pune
Municipal Corporation on 18th June, 2013, and thereafter, possession is
also handed over to the Corporation by executing possession receipt
dated 18th June, 2013. This property is vested solely in Pune Municipal
Corporation as an exclusive owner in possession and entitling it to use
the same in terms of the Corporations Act. Chapter VI of the
Corporations Act deals with duties and powers of the municipal
authorities and officers. Section 63 which falls in Chapter VI deals with
matters to be provided for by the Corporation. Under this Section, it is
obligatory on the part of the Corporation to make reasonable and
adequate provision for the matters enumerated in the said Section. In
the present petition, we are concerned with matter referred at serial
No.11 in Section 63, under which, it is incumbent for the Corporation to
maintain, change and regulate the places for the disposal of the dead
and to make provision of new places for the said purpose and for
disposal of unclaimed dead bodies.
Section 321 of the Corporations Act makes provision for
new places for disposal of the dead. Under this Section, in the event of
existing places for the disposal of the dead are insufficient, the
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Commissioner shall with the sanction of the Corporation, provide other
fit and convenient places for the said purpose, either within or without
the City.
The provisions of the above Sections makes it abundantly
clear that it is not at all necessary in law for the Commissioner to consult
anybody while deciding to provide any place for the purpose of disposal
of the dead. However, a committee was constituted under the
chairmanship of the Commissioner and this committee has taken
decision to approve the use of land in question for the purpose of
crematorium. It is apparent that to bring in transparency and to rule out
arbitrariness in taking such decision, the commissioner has taken
approval/recommendation of the said committee. The Corporation
subsequently has also passed resolution No. 45 on 20 th April, 2015,
sanctioning the use of the said space as fit and convenient place for the
purpose of disposal of the dead. In these circumstances, we find that
the Corporation was within its jurisdiction in allotting the land in
question for the purpose of crematorium.
9. The submission of Mr. Godbole, learned counsel for the
petitioners that the crematorium is not an amenity within the meaning
of sub-section 2 of Section 2 of the MRTP Act as well as under
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DCR M.6.8.b(iii) is also without any merit. The words "includes other
utilities, services and conveniences" in sub-section 2 of Section 2 of the
MRTP Act and the words "such other amenities" in Regulation
No.M.6.8(b)(iii) makes it abundantly clear that the amenities space can
be very well utilised for the purpose of crematorium.
10. Mr. Godbole, learned counsel for the petitioner relying
upon the last approved DCR No.M-6.8(b)(iii) submitted that it is
incumbent upon the Corporation to reserve at least 50% of the amenity
area for unbuildable reservations such as garden, recreational ground
etc. In the impugned decision, the Corporation resolved to allot an area
of 4000 square meters of amenity space for crematorium and balance
area was reserved for vehicle depot for encroachment department. The
City Engineer of respondent-Corporation, however, filed an affidavit
dated 9th September, 2016. In paragraph (6), following averments are
made:
"6. I say that the Respondent PMC is ready, willing and
in fact will be keeping 50% of the said amenity space
presently vesting with it (i.e. total 3132.657 square meters
out of 6265.314 square meters) as unbuildable reservation
and as an open space. I therefore say and submit that
after following the required procedure, PMC will construct
a crematorium only on the 50% area out of the 6265.314
i.e. 3132.657 square meters approximately and
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create/construct a garden on the remaining 50% i.e.
3132.657 square meters approximately, of presently
available amenity space area Plot."
Mr. Kumbhakoni submitted that in terms of this
averments, the Corporation will construct the crematorium only on 50%
of area out of 6265.314 square meters i.e. on 3132.657 square meters
and construct a garden on the balance 50% area i.e. on 3132.657 square
meters. In the light of the above averments and submissions of Mr.
Kumbhakoni, we are not inclined to entertain the petitioners' challenge
on the basis of Regulation No.6.8(b)(iii).
11. Let us consider the petitioners' challenge to the impugned
decision in the light of provisions of DCR 13.8 M(II). Mr. Godbole, in this
regard, submitted that the amenity space can be utilised only for
schools, hospitals and public garden etc and not for any other purpose.
Regulation No.13.8 (M)(II) starts with words "in case, the above
alternative is not feasible". These words make it clear that Regulation
No.13.8 (M)(II) is applicable only in case of alternative referred therein is
not feasible. Mr. Godbole, however, did not place on record the
alternative referred in the said Regulation No.13.8.M(II). In the absence
of the same, we are handicapped to deal with this submission.
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WP 7946.14
12. This takes us to consider the next submission of Mr.
Godbole that crematorium is not an amenity within the meaning of sub-
section (2) of Section 2 of the MRTP Act and DCR No. M-6.8(b)(iii). Mr.
Godbole, in this regard, heavily relied upon the decision of the Apex
Court in Godrej and Boyce Manufacturing Company Ltd. (supra) and
especially the observations made in paragraph 59. Mr. Kumbhakoni,
however, submitted that the observations made in paragraph 59 neither
constitute a precedent nor obiter dictum.
13.
The question as to what would constitute a precedent
came to be considered by the Apex Court in Union of India and ors.
versus Dhanwanti Devi and ors. (1996) 6 SCC 44. In paragraph 9 and
10, the Apex Court has observed thus :
9......It is not everything said by a Judge while giving
judgment that constitutes a precedent. The only thing
in a Judge's decision binding a party is the principle
upon which the case is decided and for this reason it is
important to analayse a decision and isolate from it the
ratio decidendi. .... .... What is of the essence in a
decision is its ratio and not every observation found
therein nor what logically follows from the various
observations made in the judgment. Every judgment
must be read as applicable to the particular facts
proved, or assumed to be proved, since the generality
of the expressions which may be found there is not
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WP 7946.14
intended to be exposition of the whole law but
governed and qualified by the particular facts of the
case in which such expressions are to be found. It
would, therefore, be not profitable to extract a
sentence here and there from the judgment and to
build upon it because the essence of the decision is its
ratio and not every observation found therein. The
enunciation of the reason or principle on which a
question before a Court as been decided is alone
binding as a precedent.......A deliberate judicial decision
arrived at after hearing an argument on a question
which arises in the case or is put in issue may
constitute a precedent, no matter for what reason, and
the precedent by long recognition may mature into rule
of stare decisis.
10. Therefore, in order to understand and appreciate
the binding force of a decision it is always necessary to
see what were the facts in the case in which the
decision was given and what was the point which had
to be decided. No judgment can be read as if it is a
statute. A word or a clause or a sentence in the
judgment cannot be regarded as a full exposition of
law. Law cannot afford to be static and, therefore,
Judges are to employ an intelligent technique in the
use of precedents. "
A Division Bench of this Court in M/s. Mohandas
Issardas versus A. N. Sattanathan 1955 Indian Law
Reports 318 had an occasion to deal with the
distinction between ratio decidendi and obiter dictum.
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WP 7946.14
The Division Bench held that the opinion of the Court
on the question which was necessary for the
determination of the case is ratio decidendi; the
opinion of the Court on a question which arose before
it for its determination but which was not necessary for
the decision of the case is obiter dictum. The Division
Bench further observed that the Supreme Court being
the highest judicial tribunal in India, it is necessary in
the interest of judicial uniformity and discipline that all
the High Courts should accept as binding the Obiter
dicta of the Supreme Court in the same spirit as they
accepted those of the Privy Council. But it would be
incorrect to say that every opinion of the Supreme
Court or every casual observation made in the course
of its judgment would be binding on the High Courts in
India. The only opinion which would be binding is an
opinion expressed by the Supreme Court on a question
which arose for its determination even though it might
ultimately be found that, that question was not
necessary for the decision of the case."
In the light of the above decision, let us see whether the
observations of the Apex Court in Godrej and Boyce Manufacturing
Company Limited (supra) constitute "ratio decidendi" or "obiter
dictum". The relevant observations in paragraph 59, which were heavily
relied upon by Mr. Godbole reads thus:
"59. In regard to the circular there is something
else too that we find quite curious. This aspect of the
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WP 7946.14
matter was not argued before us and it is not relevant
for the present, nevertheless we would like to point it
out as it may help the authorities concerned in future.
It is to be noted that both Section 126(1)(b) of the Act
and Para 6 of Appendix VII to the Regulations provide
for additional FSI or TDR for construction or
development of amenity, which term is defined both
in the Act and the Regulations. But in the Circular
dated 9.4.1996 100% FSI (built-up area) is reserved for
public utilities none of which is expressly mentioned
in the definition of amenity in Regulation 3(7) of the
garage",
Regulations.
"fire
Furthermore
station",
"municipal
"auditorium",
transport
"electric
crematorium", "municipal workshop", "town duty
office" and "office building" are not even covered by
the definition of "amenity" under Section 2(2) of the
Act. It is highly debatable if those public utilities can
be introduced through the circular as "amenities"
within the meaning of the Act or the Regulations."
We have gone through this decision of the Apex Court. In
this case, the issue which fell for consideration before the Apex Court
was about the entitlement of the appellants and petitioners for amenity
TDR for roads construction on the surrendered lands at the owner's
cost. Whether crematorium would fall in the list of amenities was not
the issue before the Apex Court. In the opening words of paragraph 59,
the Apex Court itself made it clear that, that point was neither argued
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WP 7946.14
nor it was relevant to decide the issue in question. This decision,
therefore, in our considered opinion, cannot come to the rescue of the
petitioners.
14. As regards the contention of Mr. Godbole that hearing
was not given to the petitioners before passing the impugned
order/minutes of order is concerned, none of the sections of the Acts
mentioned hereinabove contemplate that hearing to the public at
large or inviting objections for the use of amenity space is required.
15. Before concluding this judgment, we must mention that
taking into consideration that the crematorium in question is proposed
in residential zone, it will be necessary for the Corporation to take extra
caution while developing the crematorium area so that the people
residing in vicinity are not subjected to any kind of inconvenience.
Likewise, it is also necessary that people visiting the crematorium should
not be inconvenienced. We, accordingly, direct the Corporation to
develop the crematorium area in such a way that it is made cleaner,
presentable and convenient for those visiting the
crematorium/cremation ground. The Corporation will also take steps to
reduce carbon emission by using modern technology so as to control
the pollution.
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WP 7946.14
16. In view of the discussion made hereinabove, the petitions
are dismissed. Rule is discharged.
17. In view of disposal of the petitions, civil application No.
2957 of 2014 will not survive for consideration and the same is also
disposed of.
[ANUJA PRABHUDESSAI, J.] ig [RANJIT MORE, J.]
At this stage, Mr. Godbole, learned counsel for the petitioners,
seeks continuation of the interim relief for a period of three weeks from
today. The request is opposed by Mr. Kulkarni, learned counsel for the
Corporation. However, in the interests of justice and in order to enable
the petitioners to approach the Supreme Court, the status-quo granted
earlier shall remain in force till 23 rd December, 2016. It is made clear
that the petitioners will not seek further extension of the status-quo.
[ANUJA PRABHUDESSAI, J.] [RANJIT MORE, J.]
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