Shri Girish Vyas & Anr. Vs. The State of Maharastra & Ors.
Dr. Laxmikant Madhav Murudkar (since deceased) Through LRs Mrs. Ranjana Laxmikant Murudkar & Ors. Vs. The State of Maharastra & Ors.
Shri Manohar Joshi Vs. The State of Maharastra & Ors
Shri Ravindra Murlidhar Mane Vs. The State of Maharastra & Ors
Shri Rama Nath Jha Vs. The State of Maharastra & Ors.
Maruti Raghu Sawant & Ors. Vs. The State of Maharastra & Ors.
J U D G E M E N T
H.L. Gokhale J.
1. What is the nature and significance of the planning process for a large Municipal town area? In that process, what is the role of the Municipal Corporation, which is the statutory planning authority? Can the State Government interfere in its decisions in that behalf and if so, to what extent? Does the State Government have the power to issue instructions to the Municipal Corporation to act in a particular manner contrary to the Development Plan sanctioned by the State Government, and that too a number of years after the Municipal Corporation having taken the necessary steps in consonance with the plan?
Can the State Government instruct a Municipal Corporation to shift the reservation for a public amenity such as a primary school on a plot of land, and also instruct it to grant a development permission for residential purposes thereon without modifying the Development Plan? Could it still be considered as an action following the due process of law merely because a provision of Development Control Rules is relied upon, whether it is applicable or not? Or where the Municipal Corporation is required to take such contrary steps, supposedly on the instructions of the concerned Minister / Chief Minister, for the development of a property for the benefit of his relative, would such instructions amount to interference/mala fide exercise of power?
Is it permissible for the landowner and developer to defend the decision of the Government in their favour on the basis of a provision in the erstwhile Town Planning Scheme as against the purpose for which the land is reserved under the presently prevalent Development Plan? Is it permissible for the landowner and developer to explain and justify such a favourable Government decision by relying upon the authority of the Government under another section of the statute which is not even invoked by the Government? What inference is expected to be drawn in such a situation with respect to the role played by the ministers or the municipal officers?
What orders are expected to be passed when such facts are brought to the notice of the High Court in a Public Interest Litigation? These are some of the issues which arise in this group of Civil Appeals in the context of the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short MRTP Act) concerning a property situated in Pune Municipal area.
2. These appeals arise out of two writ petitions in public interest leading to concurrent judgments and a common order dated 6th - 15th March 1999 passed by a Division Bench of the Bombay High Court. These writ petitions bearing nos.4433 and 4434 of 1998 were filed respectively by one Vijay Krishna Kumbhar, a journalist and one Nitin Duttatraya Jagtap, a Municipal Corporator of Pune. The petitions pointed out that a particular plot of land bearing Final Plot No.110 (F.P. No. 110 for short), and admeasuring about 3450 sq. meters, situated on Prabhat Road in the Erandwana area of the city, was initially reserved for a public purpose namely, a garden/playground, and subsequently for a primary school.
They further pointed out that a number of years after the Pune Municipal Corporation (hereinafter referred to as PMC) took all the necessary steps to acquire this particular plot of land, the landowner one Dr. Laxmikant Madhav Murudkar appointed M/s Vyas Constructions, a proprietary concern of one Shri Girish Vyas (the appellant in Civil Appeal No.198-199 of 2000) as the developer of the property. Shri Girish Vyas is the son-in-law of Shri Manohar Joshi who was the Chief Minister of Maharashtra from 14.03.1995 till January 1999.
The petitioners contended that only because of the instructions from the Urban Development Department (UDD for short) which was under Shri Manohar Joshi, that in spite of the reservation for a primary school, the plot was permitted to be developed for private residences flouting all norms and mandatory legal provisions. They sought to challenge the building permission which was issued by the PMC under the instructions of the State Government, by submitting that these instructions amounted to interference into the lawful exercise of the powers of the Municipal Corporation, and the same was mala fide.
After hearing all concerned, the petitions were allowed, and an order has been passed to cancel the Commencement (of construction) certificates, and Occupation Certificate, and to pull down the concerned building which has been 5constructed in the meanwhile. The State Government has been directed to initiate criminal investigation against Shri Manohar Joshi, Shri Ravindra Murlidhar Mane, the then Minister of State for UDD, and the then Pune Municipal Commissioner Shri Ram Nath Jha.
3. Being aggrieved by this order, the present group of appeals have been filed:(i) Civil Appeal Nos. 198- 199/ 2000 are filed by the developer Shri Girish Vyas and his proprietary concern M/s Vyas Constructions. Civil Appeal No. 2450 of 2000 is filed by the landowner Dr. Laxmikant Madhav Murudkar (since deceased) to challenge the judgments and the order in their entirety. Their submissions by and large are similar. (ii) Civil Appeal Nos. 2102-2103 of 2000 are filed by Shri Manohar Joshi, the then Chief Minister, Civil Appeal Nos. 2105-2106 of 2000 are filed by Shri Ram Nath Jha who was the then Pune Municipal Commissioner, and Civil Appeal No. 2120 of 2000 is filed by Shri Ravindra Murlidhar Mane, the then Minister of State, UDD.
These appeals seek to expunge the adverse remarks against the appellants, and the order directing criminal investigation against them. (iii) Civil Appeal Nos. 196-197 of 2000 are filed by Maruti Raghu Sawant and others who were the tenants in this property. They contend that in the scheme prepared by the developer, they were to become owners of their tenements whereas under the original reservation, they were to be evicted.
We may note at this stage that though the PMC accepts the judgment, it has no objection to the tenants continuing as tenants of PMC in the building which is constructed for accommodating them on a portion of the very plot of land. The tenants, however, contend that if the plot of land is taken over by PMC, they will remain mere tenants as against the ownership rights which were assured to them by the developer and the landlord, and are, therefore, continuing to maintain their appeals.
4. All these appeals are opposed and the impugned judgment and order are defended by the original petitioners as well as by the PMC and the State Government. It is relevant to note that the State of Maharashtra as well as PMC had opposed the writ petitions in the High Court, but they have not filed any appeals and have now accepted the judgment and order as it is. Since, all these appeals are arising out of the same judgment and order, they have been heard and are being decided together, by treating the appeals filed by Shri Girish Vyas as the lead appeals. Facts leading to these appeals Reservation on F.P. No. 110 for a garden
5. Dr. Laxmikant Madhav Murudkar (since deceased), appellant in Civil Appeal No. 2450 of 2000 (hereinafter referred to as landowner) owned the property bearing F.P. No. 110. The Government of Maharashtra sanctioned a Development Plan for Pune City by publishing a notification dated 7.7.1966 in the official gazette dated 8.7.1966, which fixed 15.8.1966 as the date on which the said plan shall come into force. (The said plan is hereinafter referred to as 1966 7D.P. Plan). Under the said 1966 D.P. Plan, F.P. No. 110-112 were reserved for a garden. The Plan was sanctioned in exercise of the power of the State Government under Section 10 of the then prevalent Bombay Town Planning Act 1954 (1954 Act for short). This notification stated that the PMC had passed the necessary resolution of its intention to prepare a Development Plan, carried out the necessary survey, considered the suggestions received from the members of the pubic under Section 9 of the Act, and after modifying the Plan wherever found necessary, submitted it to the Government, and thereafter the Government having consulted the Director of Town Planning, had in exercise of its power under Section 10 (1) and (2) of the Act, sanctioned the Development Plan.
6. Subsequently, the 1954 Act was repealed and replaced by the MRTP Act with effect from 11.01.1967. However, by virtue of Section 165 (2) of MRTP Act, the 1966 D.P. Plan was saved. Consequently, when the landowner applied for the sanction of a layout in F.P. No.110, the same was rejected by PMC. Therefore, the landowner served on the State Government a notice dated 8th May 1979 under Section 49 (1) of the MRTP Act, calling upon it to purchase the land and to "commence the proceedings for acquisition".
The notice stated that the F.P. No.110 was not acquired within the period of 10 years granted to the Planning Authority to implement the D.P. (for the Pune Municipal area, PMC is the Planning Authority). It further stated that as per his understanding, the D.P. was under revision but the reservation on petitioner's F.P. No.110 had not been changed, and `the reservation will never be cancelled and the final plot will 8never be handed back' to him. The State Government confirmed the purchase notice under Section 49 (4) of the Act by its letter dated 5.12.1979. The Government's letter informed the landowner that necessary instructions have been issued to the PMC, and he may approach their office. Steps for acquisition of F.P. No. 110
7. The standing committee of the PMC thereafter passed a resolution on 5.1.1980 to initiate the proposal for acquisition. The PMC then forwarded the proposal to the Collector of Pune on 9.5.1980 to take the steps for acquisition. On 27.8.1981, the State Government notified the land for acquisition under Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act 1894 (for short L.A. Act). A Special Land Acquisition Officer (S.L.A.O. for short) was appointed to perform the functions of the Collector.
A notice informing the initiation of the proceedings under the L.A. Act as required under Section 9 thereof was issued on 8.9.1981 seeking claims for compensation. The landowner replied to the notice, but did not challenge the acquisition. He filed his claim statement during the acquisition proceeding, and demanded the compensation at the rate of Rs. 480 per sq.m, and also that the material removed after demolition of the temporary structures (of the tenants) on the property should be given to him. Twenty four tenants filed a common claim statement and objected to the acquisition, but did not seek any compensation.
They specifically stated that `there will not be any objection if they are provided with alternative accommodation on the land to be acquired'. The S.L.A.O. passed his award under Section 11 of the L.A. Act on 12.5.1983. He rejected the 9objections of the tenants, and awarded the compensation of Rs. 100 to each of the 25 tenants. He determined the compensation payable to the landowner at Rs. 6,10,823/-. On 15.3.1985 the landowner withdrew the amount of compensation by furnishing necessary security, though under protest.
8. After the Award was made by the S.L.A.O. on 12.5.1983 as stated earlier, a notice under Section 12 (2) of the L.A. Act was given, to take possession of the land on 20.5.1983. Once again, only the tenants objected thereto. They filed a suit on 19.5.1983 in the Court of Civil Judge, Senior Division, Pune, bearing Suit No. 966 of 1983, to challenge the acquisition and the Award. The landowner was joined therein as defendant No. 3.
The Court granted an interim injunction on 19.6.1983, restraining the authorities from taking possession. However, after hearing the parties, an order was passed on 9.2.1984 vacating the injunction, and returning the plaint for failure to give the mandatory notice required under Section 80 of the Code of Civil Procedure . The tenants filed an appeal to the District Court against that order, but the same was also dismissed. Thereafter, the tenants made a representation to the then Minister of State for UDD, pointing out their difficulties, which persuaded him to pass an administrative order restraining the authorities concerned from taking possession of F.P. No. 110.
9. It is pertinent to note that all along, the landowner did not challenge the acquisition of his land in any manner whatsoever. On the other hand, he sought a Reference under Section 18 of the L.A. Act for enhancement of the compensation. The District Court dismissed that Reference bearing No. 10273 of 1983 by order dated 15.4.1988, but enhanced the solatium and additional amount payable under Section 23(2) and 23(1A) of the L.A. Act. The amount payable under the order of the District Court was collected by the landowner, though under protest, but he did not prefer the appeal permissible under Section 54 of the L.A. Act. Revision of the D.P. Plan for Pune under the MRTP Act and change of utilisation of F.P. No. 110 to a Primary school
10. In the meanwhile, the process of revising the Development Plan of Pune city under the provisions of MRTP Act was going on. The PMC as the planning authority had passed a resolution on 15.3.1976 declaring its intention to prepare a Revised Development Plan under Section 23 (1) read with Section 38 of the MRTP Act. The State Government appointed the Director of Town Planning to be the Special Officer for that purpose under Section 162 (1) of that Act. After observing all the legal formalities, the said Director published in the official gazette on 18.9.1982 the Revised Draft Development Plan under Section 26 (1) of the Act. In that plan F.P. No. 110-112 were initially reserved for children's play-ground, but subsequently the reservation was changed to primary school.
After inviting the objections and suggestions, and after considering them, the State Government sanctioned the Revised D.P. Plan on 5.1.1987 (though with a few modifications), to be effective from 1.1.1987 (hereafter referred as 1987 D.P. Plan for short) as also the Development Control Rules (D.C. Rules for short). In the sanctioned D.P. Plan of 1987, the purpose of utilization of these three plots was, as stated above changed to primary school. The modification with respect to these three plots was as follows:- "Reservation continued. Development allowed as per note 4". Note 4 reads as follows:-
"Sites designated for Primary Schools from Sector I to VI as may be decided by the Pune Municipal Corporation may be allowed to be developed by recognized public institutions registered under Public Charitable Trust Act, working in that field or the owners of the land."Thus by virtue of this note, the purpose could also be effectuated either by the owner of the land, or by a recognized charitable institution.
11. It is relevant to note at this stage that a school for the handicapped children has come up in the adjoining F.P. No. 111. Besides, a primary school was set up by Symbiosis International Cultural and Educational Centre (`Symbiosis' for short) on F.P. No. 112. It is stated that Symbiosis and another educational institution viz. Maharashtra Education Society (MES) had sought these plots since they were in need of land for extension of their educational activities. The then Chief Minister of Maharashtra had recommended the proposal of MES by his letter dated 9.4.1986, and the society had applied to the then Commissioner of Pune by its letter dated 29.4.1986. That was, however, without any effect.
12. The S.L.A.O. gave one more notice to take possession of F.P. No.110 on 1.3.1988. It led to the filing of Regular Civil Suit bearing No. 397 of 1988 by some of the tenants in the Court of Civil Judge, Senior Division, Pune against the State Government and PMC, once again challenging the award of the 12S.L.A.O., and seeking an injunction to protect their possession. The Court granted the interim injunction as sought. Thereafter the landowner, who was one of the defendants in the suit, applied for transposing himself as a plaintiff, which prayer was allowed on 2.4.1988. The Court accepted the contention of the tenants that the acquisition had lapsed due to the change of purpose of reservation from what it was in 1966 viz. a garden by the time the award was made, and, therefore, decreed the suit by its order dated 23.4.1990.
13. The PMC preferred a first appeal against that decree to the Bombay High Court on 7.1.1991, but the Additional Registrar of the High Court returned the appeal by his order dated 21.4.1992 for presentation to the District Court on the basis of the valuation of the suit, and the provision for jurisdiction as it then existed. Accordingly, the PMC filed the appeal before the District Court immediately on 29.4.1992, but the District Court in turn, by its order passed two years later on 7.4.1994 returned the appeal for re-presenting it to the High Court, on the ground that the suit was valued above Rs. 50,000/- and as per the rules then existing the appeal would lie to the High Court.
PMC once again filed the appeal in the High Court being F.A (Stamp) No. 18615 of 1994 on 18.7.1994, along with an Application for condonation of delay for the reasons as stated above. This Appeal remained pending till it was withdrawn on the direction of the State Government on 18.8.1998, in the circumstances which will be presently pointed out. It is, however, relevant to note that this appeal was withdrawn at a point of time when the two public interest petitions were filed on 12.8.1998, and were pending in the High Court.
The impugned order of the Division Bench on 13these petitions has directed the PMC to move an Application before the High Court for reviving the First Appeal (Stamp No.18615 of 1994), and pursuant thereto the PMC has already moved the necessary Application on 13.1.2000. Be that as it may. Steps taken by the landowner after Shri Manohar Joshi took over as the Chief Minister of Maharashtra
14. It is material to note that after the decision of the Reference Court, the landowner entered into an agreement of sale of the concerned land with one Shri Mukesh Jain on 17.8.1989, though no steps were taken thereafter by either of the parties on the basis of that agreement. It so happened that consequent upon the elections to the State Assembly, a new Government came in power in the State of Maharashtra in March 1995, and Shri Manohar Joshi took over as the Chief Minister (hereinafter referred as the then Chief Minister). He retained with himself the UDD portfolio.
The earlier referred Shri Ravindra Mane became the Minister of State for UDD (hereinafter referred to as the then Minister of State). On 20.10.1995 the landowner entered into a Development agreement with M/s Vyas Constructions by virtue of which the landowner handed over all rights of development in the property to them for a consideration of Rs. 1.25 crores, a flat of 1500 sq. feet area and an office space of 500 sq. feet in the building to be developed on F.P. No. 110. The agreement stated that it was being entered into to solve the practical difficulties. Para 7 thereof stated that the developer shall follow the procedure or process of de-reservation of the said property. Para 20 and 21 stated that `after de-reservation of the property, the developer agrees to get the clearance under the Urban Land (Ceiling and Regulation) Act 1976 which may be necessary,' and for that purpose he was authorised to get any scheme sanctioned.
M/s Vyas Constructions is stated to have settled the claim of above referred Shri Mukesh Jain. On the same day, the landowner executed an irrevocable Power of Attorney in favour of Shri Girish Vyas for the development of F.P No. 110. (He is referred hereinafter as the developer). The landowner simultaneously executed another Power of Attorney in favour of one Shri Shriram Karandikar on 26.10.1995, authorising him to take necessary steps concerning the development of that land.
15. Thereafter, on 1.11.1995 the architect of the landowner submitted to PMC a building layout for permission for residential use of F.P. No. 110. The City Engineer of PMC rejected the proposal by his reply dated 6.11.1995 under Section 45 of the MRTP Act read with Section 255 of the Bombay Provincial Municipal Corporations Act 1949 (BPMC Act for short) and D.C. Rule No. 6.7.1, since the plot had been reserved for a primary school, and hence such a permission could not be granted. It was however pointed out in this reply of the City Engineer that the development of the land was permissible in the manner indicated in the note No.4 published in the gazette which has been referred to hereinabove (i.e. putting up a primary school either by the landowner or by a charitable trust).
16. At this stage, landowner's Attorney holder, Shri Shriram Karandikar wrote to the Minister of State for UDD on 20.11.1995 seeking a direction to the Municipal Commissioner to sanction landowner's aforesaid application dated 151.11.1995 for development of the property for residential houses. He relied on the decree of Civil Judge Senior Division in Civil Suit No.399 of 1998 and prayed for correcting the Development Plan also. From here onwards starts the role of the then Minister of State, the Municipal Commissioner, and the then Chief Minister. Processing of the application dated 20.11.1995 on behalf of the landowner at the level of the State Government
17. In their petitions to the High Court, the writ petitioners made the allegation of mala fides on the part of the then Chief Minister and the Minister of State for UDD in entertaining the application made on behalf of the landowner. It, therefore, became necessary for the Division Bench of the High Court to call for the original record from the State Government as well as from the PMC. The application dated 20.11.1995 made by Shri Karandikar on behalf of the landlord narrated the developments until the date of that application including the judgment and decree of the Civil Court setting aside the acquisition of the property.
It was, thereafter, submitted that the Municipal Commissioner be directed to sanction the development permission as per the application of the architect of the landowner. It is relevant to note that as far as this application of Shri Karandikar is concerned, it was not addressed to the State Government or to the Secretary of the concerned Department, but directly to the Minister of State for UDD, which fact is noted by the Division Bench in its judgment.
The application did not bear any inward stamp of UDD. In the margin of the application, there was a noting by the Private Secretary of the Minister of State 16for UDD, recording that the Minister had directed the Deputy Secretary, UDD, to call a meeting on 19.1.1996. The record further shows that although the Under Secretary of UDD Shri P.V. Ghadge accordingly called the initial meeting, by addressing a letter to the Director, Town Planning and the Municipal Commissioner, the same was adjourned to 22.1.1996. On that date, the meeting was attended by the Director of Town Planning, the Deputy City Engineer of PMC, Deputy Director of Town Planning, Pune, as well as by Shri Karandikar and his advocate, but what happened in that meeting is not reflected in this file. Initial Stand of Urban Development Department and PMC
18. The Under Secretary (Shri P.V. Ghadge) prepared a preliminary note dated 2.2.1996 for the subsequent meeting. At the outset, the note mentions in a nutshell the background for the meeting which was sought on behalf of the landlord. Thereafter it gives the initial opinion of the U.D. Department at the end of the note, which is as follows:- "In this regard it is the advice of the department that, acquisition has been done after taking action on the purchase notice. The compensation amount has been accepted. Even if the reservation of the plot is changed, it does not make any difference. Directions be given to the Pune Municipal Corporation to immediately present this matter in the Bombay High Court. The question of returning the plot to the land owner does not arise."
19. On the background of this departmental note containing its advice, a meeting was held on 3.2.1996 presided over by the Minister of State for UDD, and the minutes of the meeting are part of the record placed before the High Court. Apart from Shri Karandikar and his advocate, high ranking officers such 17as (i) Secretary, UDD, (ii) Director, Town Planning, (iii) Commissioner, PMC, (iv) City Engineer, PMC and (v) Under Secretary, UDD were present in the meeting. The minutes of the meeting are recorded by the Under Secretary.
20. These minutes record that in this meeting the advocate of the applicant explained the facts leading to his client's application, justifying as to why the reservation on the land may be deleted. He referred to the Court proceedings, the fact that 25-30 tenants were residing on the property for many years, and that on the adjoining property a school was running. He therefore submitted that the reservation on the land be deleted.
21. The note records a preliminary query raised by the Secretary, UDD as to whether the advocate was pleading on behalf of the tenants or the landowner, to which the Advocate replied that he was pleading for the landowner. The Secretary, UDD raised two more queries viz. (i) if the land was not useful for reservation because of the tenants, then how will it be available to the landowner, and (ii) whether the landowner had ever objected to this reservation, to which the advocate replied in the negative.
22. The City Engineer, PMC pointed out during the meeting that consequent upon the property owner issuing the purchase notice, the PMC had acquired the land, the award was made, the property owner had accepted the compensation, and that he never objected to the change in reservation due to the revision of the D.P. Plan during the entire period of revision i.e. 1982-87. With respect to the proceedings initiated by the tenants, he pointed that PMC 18had filed an Appeal in the Bombay High Court against the judgment of the Civil Court, and the matter was sub-judice. He specifically asked whether the hearing given to the applicant was on an appeal under Section 47 of the MRTP Act, or was it on his application.
He pointed out that the property was under reservation, and it could not be de-reserved in an appeal under Section 47. It required an action in the nature of modification under Section 37 of the MRTP Act. If it was an appeal, then it may be rejected, and if it was an application for modification then a decision cannot be taken as the matter was sub-judice. On these queries it was stated on behalf of the landowner that his application was a request and not an appeal. Directions by Minister of State and report made by the Municipal Commissioner in pursuance thereof
23. It was thereafter pointed out on behalf of landowner that on the adjoining two plots, schools had been developed, and the Corporation may not need this land. The note records that in view of this submission, the Minister of State, UDD asked the Municipal Commissioner to examine whether the PMC really needed the concerned property.
He also suggested that it be examined, if PMC can keep some portion of the land under reservation, and release the remaining to the landowner. If such a compromise is to be arrived at, then the property owner will have to accommodate the tenants on a portion of property released to him. If PMC did not have any objection to reduce the area under reservation, Government will issue the necessary direction to take action under Section 37. The note records at that stage, that the Municipal Commissioner pointed out that the permission of the Municipal Corporation (meaning the 19general body) was necessary to either delete the reservation, or to reduce the area under reservation.
24. The file shows that accordingly the Under Secretary wrote to the Municipal Commissioner on 14.2.1996 requesting him to examine the possibility regarding any settlement after a site inspection, and to forward his opinion. He was also asked to inform as to when had the PMC filed its appeal in the Bombay High Court, and about its status.
25. The file shows that at this stage, the landowner changed his stand. Shri Karandikar wrote another letter dated 23.3.1996 to the Minister of State that his application be treated as an appeal under Section 47 of the MRTP Act.
26. The Municipal Commissioner replied Government's letter dated 14.2.1996 by his letter dated 17.4.1996. He pointed out that the development permission for this particular plot had been rejected because the property was under reservation. Then he reiterated the position of PMC as stated in the meeting of 3.2.1996. Then he added - "On 3.2.1996 we took the same stand which was taken by us in various counts and administrative levels regarding dispute for the development of property, and that if any change is proposed in the use of the said property, permission has to be taken from the Pune Municipal Corporation. The Hon'ble Minister of State for urban development ordered us to survey the subject property and also ordered to explore the options of changing or reducing the area of the reservation."
27. The Municipal Commissioner then stated that before considering the various options as directed by the State Government, it was necessary to 20note the background of the subject property; viz. that as per the 1966 D.P. Plan, it was reserved for a garden, and subsequently the reservation was changed to a Primary School in the draft D.P. Plan of 1982 confirmed in 1987. He referred to the litigation initiated by the tenants, the fact that the PMC had filed an appeal to the High Court against the decision in the Civil Suit No. 397/1988, and that the High Court sent back the matter to the District Court and it was pending there.
He placed on record the fact that though full price of the land was paid to the owner, procedure of taking actual possession by the PMC was still pending for last 13 years, because of which it was not possible to make appropriate use of the land. The Minister had asked him to survey the subject property, and to explore the possibility of changing or reducing the area of reservation. The commissioner pointed out that a survey was carried accordingly. He recorded that on inspection following facts were mainly noted:-
"1. There are about 36 temporary Houses on the land.
2. Out of the total area nearly half is encumbered.
3. Two Educational Institutions in the vicinity of the School.
4. There are 11 Educational Institutions in the vicinity of the School.
5. Except the temporary Houses on this property the development of the area is planned and corporation has control over it.
"The Commissioner however, did not specify as to which area of the city was considered by him when he spoke about `vicinity' in item No. 4 above.
28. The land was to be developed either by PMC or the owner or by a Charitable Trust as per the D.P. Note 4 referred to above. The Municipal Commissioner then gave his opinion that development of a primary school on 21that plot by a charitable institution appeared impossible due to various factors such as the order of the Civil Court, litigation concerning this plot, the requirement of rehabilitation of the tenants on that plot, and existence of near-by schools. Besides, the area being a higher middle class area, the response to a municipal school was doubtful.
He then added as follows - `considering the funds available, the PMC is inclined to develop school on some other plot reserved for school'. As we have noted earlier two well-known educational institutions, viz. MES and Symbiosis had already sought this plot also. The PMC had however replied to them that it was not possible for it to give them this plot, since it was not in the possession of PMC. The Municipal Commissioner failed to bring these very relevant facts to the notice of the Government. Having noticed these facts, the Division Bench has observed in para 143 of its judgment that the Commissioner's statement in this behalf in his report was "far from truth".
29. The Commissioner then recorded that in view of the direction of the State Government to suggest alternatives for settlement, he had in the meanwhile, held discussions with Shri Karandikar, and that Shri Karandikar had expressed readiness to give alternate unencumbered land within suburbs of Pune admeasuring 5000 to 10000 sq. feet free of cost. Thereafter, in view of the direction of the State Government and proposals from Shri Karandikar, the Commissioner recorded two suggestions:- "1. Presently reserved area is about 3541 sq.mtrs out of which nearly 50% area is occupied by occupants and remaining area is open. The land owner after excluding the area occupied by the existing houses, to transfer the remaining area to the Pune Municipal Corporation for school.
However, since the land owner 22 has accepted compensation for the entire area, for the area to be transferred, he should refund the amount to the Pune Municipal Corporation at the rate suggested by the Director of Town Planning. 2. To get transferred land admeasuring 3000 sq.mtrs elsewhere at a convenient place in Pune City with school admeasuring 500 sq.mtrs constructed thereon free of cost as per specifications of the Pune Municipal Corporation, and for that purpose it is necessary to get executed a proper agreement. But land to be given elsewhere should not be reserved in development plan for school or some other purpose." Thereafter his letter stated as follow:-
"If first proposal is to be accepted for developing school on remaining area question regarding decision of Civil Judge, Senior Division would arise. In this situation it is necessary to have the support of the land owner and tenants for this proposal. For implementing both the aforesaid proposals suggested by us it would be appropriate if the following things are complied with:-
1. The Pune Municipal Corporation administration to take permission from the Pune Municipal Corporation before releasing rights in respect of the subject property.
2. For deleting reservation on the property taking action under Section 37 of M.R.T.P.
3. For acquiring new site as per Proposal No.2 permission of concerned Departments of the Pune Municipal Corporation will have to be taken.
Then the Commissioner added:- Prior to this since no such settlement matters have taken place regarding the development plan of Pune Municipal Corporation, the experience of Pune Municipal Corporation in this regard is limited. Till the next order is received from the State Government the Pune Municipal Corporation is continuing the judicial procedure in respect of this land."
30. After the receipt of the letter dated 17.4.1996 from the Municipal Commissioner, the file shows the following noting dated 24.4.1996:- " Mantralaya, Bombay 400 032 23 Date 24/4/1996 According to the instructions of Shri Chavan, Private Secretary of the Hon'ble Chief Minister, please forward a copy of the report of the Pune Municipal Corporation in the matter of Shri Karandikar for the perusal of the Hon'ble Chief Minister. Shri Ghadesaheb Sd/- Under Secretary Private Secretary N.V. Minister of State for Finance, Planning and Urban Development Government of Maharashtra"
31. On receiving the above reply dated 17.4.1996 from Municipal Commissioner, Shri Ghadge, the Under Secretary once again put up a detailed note thereon. In first 8 paragraphs of that note he recorded the previous developments, including and upto the letter sent by the Municipal Commissioner. Thereafter in paragraph 9, 10 and 11 he put up the proposal of the department:- "9. Considering the entire aforesaid circumstances, it is firstly pointed out that applicant Shri Karandikar has approached the Government on behalf of the land owner but the land owner has already taken the price of the said property in the year 1983.
Though the physical possession of the said property is not received to the Municipal Corporation still however, legally Municipal Corporation has become owner of the said property. Therefore, the Land Owner does not have any right to demand return of the said property by deleting reservation. Now considering the tenants, they have approached the Court and therefore, it is not necessary to consider that aspect till the matter is decided by the Court. If the said matter is decided against the Municipal Corporation still the said persons shall be tenants and the land owner shall be Municipal Corporation and further that the tenants have requested for allotment of the land for developing it.
10. Still however considering the fact that no way out will be available if the matter is kept pending as it is, and further considering that there are numerous schools in the vicinity of the said property, there should be no objection to consider and approve on government level the alternative No.1 suggested by 24 the Municipal Commissioner. However, for the said purpose the tenants will have to withdraw their proceedings from the Court and they will have to pay to the Municipal Corporation the cost price of the 50% portion to be released for the said tenants as may be determined by the Director, Town Planning. If the said alternative is acceptable to the land owner, the Pune Municipal Corporation be informed about the orders of the Government to initiate proceedings u/s 37 for the purposes of deletion of 50% property from reservation and to forward the said proposal to the Government.
11. Second alternative does not deserve any consideration since for shifting the reservation the alternative property should have the same area like that of the original one and that it is necessary that such property should be in the vicinity of approximately 200 mtrs. from the property under reservation. So also the matters like approach road and level of the land are also required to be similar. (MARGINAL REMARK - Rule No.13.5 of Pune Development Control Rules).
12. Proposal in paragraph 10 submitted for approval." The note was countersigned by Shri Deshpande, Deputy Secretary, Town Planning on 4.6.1996, and by the Senior Chief Secretary (NV i.e. Nagar Vikas or Urban Development). Thus the Urban Development Department did not accept the second proposal of the Municipal Commissioner to remove the reservation on the plot in its entirety, but recommended the acceptance of the first proposal to reduce the reservation on the plot to 50% of its area. The Minister for State however did not sign the note and he ordered a further discussion on the subject on 12.6.1996.
32. Thus there was once again a discussion with the Minister of State, UDD on 12.6.1996 when Shri Karandikar, Shri Harihar, City Engineer, PMC, Shri Deshpande, Deputy Secretary, Town Planning and Shri Ghadge, Under Secretary were present. Shri Ghadge made a note of the meeting and signed it on 2513.6.1996, and which note is also signed by Shri Deshpande and the Additional Chief Secretary. The note records that on behalf of the applicants it was stated that it was not possible for them to accept the alternative no.1, and Municipal Corporation should consider the second alternative.
The note further records that thereupon the City Engineer suggested that if the applicant shows some other alternative properties, the Municipal Corporation will inspect all of them and then consider as to which of them is possible to be accepted. The note thereafter records as follows:- "In the event such alternative property is selected by Municipal Corporation, then action to be taken for shifting the reservation from the subject property as per Rule No. 13.5 of Pune Development Control Rules can be considered. However, it was clarified by the Department that for that purpose the condition of 200 mtr. Distance will have to be relaxed and for which the permission of Hon. Chief Minister will have to be obtained". The PMC was thereafter asked to submit its response in the light of above discussion. Shri Ghadge recorded this suggestion in his letter dated 20.6.1996 addressed to the Municipal Commissioner.
33. The Municipal Commissioner then wrote back to the Under Secretary, UDD by his letter dated 15.7.1996, pointing out that the applicant had shown four sites from which one at Lohegaon Survey No.261 H.No.1/2 admeasuring 3000 sq.meter was suitable for a primary school, but it was in the Agricultural zone as per the approved D.P., and if it was to be converted to Residential zone, the approval of the State Government will have to be obtained for such a modification.
34. On receiving this letter from the Municipal Commissioner, Shri Ghadge once again put up a detailed note and at the end of para 8 thereof stated as follows:- "Considering the above circumstances and especially `A" on 12 T.V. and B on 14 T.V., there could be no objection in granting permission for shifting reservation under Rule 13.5 of the D.C. Rules by relaxing the 200 meter condition and accordingly directions can be given to the PMC for taking the following necessary action:-
1. The Pune Municipal Corporation should recover the amount of compensation paid earlier, for acquisition of final plot No.110 at Earndwane together with the structures, with simple interest.
2. The State Government should issue directions to the Pune Municipal Corporation for getting the plot at Lohegaon, Pune Survey No.261 Hissa No.1/2 from Agricultural zone into residential zone by following the procedure under Section 37(1) of the Maharastra Regional and Town Planning Act, 1966 and thereafter submitting the proposal to the State Government for sanction.
3. The Commissioner Pune Municipal Corporation should take action for shifting the reservation for Primary School on Final Plot No.110 in the Development Plan of Pune City under Rule 13.5 of the Development Control Rules, Pune to Lohegaon, Survey No.261, Hissa No.1/2 and for that purpose the permission of the Corporation is not necessary as intimated earlier by the State Government in another case [Survey No.39/1, Kothrud, Pune].
4. After complying with (1) and (3) above, the Pune Municipal Corporation should enter into an Agreement for transfer of the land at Lohegaon Pune and thereafter give development permission for the plot at Erandwane. However the Completion Certificate for that place should not be issued unless the construction of School at Lohegaon is completed." Below that note there are signatures as follows:-
"Sd/- 26/7/96
(P.V. Ghadge)
Under Secretary
Sd/- 26/7/96
(Shri Deshpande)
Deputy Secretary Town Planning
Sd/- 26/7/96
Additional Chief Secretary, (U.D.)
Sd/- 30/7/96
Hon'ble Minister of State (U.D.)
Received
31/7/96 All action be taken in accordance with law. No objection.
Sd/- 21/8/96
Hon. Chief Minister"
35. In view of the above decision signed by the Chief Minister on 21.8.1996, the Deputy Secretary, UDD sent a letter/order dated 3.9.1996 to the Commissioner containing exactly the above four conditions. The letter stated that he had been ordered by the State Government to inform those four directives, and after quoting those four directives the letter further directed the Corporation to act as per the above State Government directives and report compliance. The letter reads as follows:- "ENGLISH TRANSLATION OF STATE GOVERNMENT LETTER DATED 03/09/1996 (MAHARASHTRA STATE) No.TPS-1896/102/Matter No.7/96/U.D.-93 Urban Development Department Mantralaya, Mumbai 400 032 Date : 3rd September, 1996 To,
The Commissioner Pune Municipal Corporation 28 Pune Sub: Development Permission of T.P. Scheme No.1, Final Ploat No.110. Ref: Request Application dated 20/11/95 by Shri Shriram Karandikar to Minister of State for Urban Development for Development in the subject matter. Sir, I have been ordered by the State Government to communicate to you the following directives.
1. The Pune Municipal Corporation should recover from the land owner according to the land acquisition law the principal amount paid for acquisition of Final Ploat No.110, Erandwane along with construction, with interest thereon at 12%.
2. S.No.261 Hissa No.1/2 Lohegaon, Pune which is in agricultural zone should be included within residential zone in the Development Plan. For doing this you are directed that Pune Municipal Corporation should complete the entire legal action under Section 37 (1) of the Maharashtra Regional and Town Planning Act, 1966 and send the proposals to the State Government for sanction.
3. The Commissioner, Pune Municipal Corporation should take steps to shift the reservation of primary school in accordance with Rule 13.5 of the Development Control Rules from Final Plot No.110, Erandwane to Lohegaon S. No.260 Hissa No.1/2. For this purpose no sanction is required from the Pune Municipal Corporation as has been earlier communicated to you in another matter (S.No.39/1 Kothrud).
4. After action as stated in (1) and (3) above is completed, appropriate agreement be entered into by Pune Municipal Corporation with land owner about transferring the Lohegaon plot and thereafter Development permission be granted in respect of the Plot at Erandwane, however no completion certificate for that place be granted unless the construction of school at Lohegaon is complete. Corporation to act as per the above State Government directive and submit report regarding compliance to the Government. 29 Yours faithfully, Sd/- Vidyadhar Deshpande Deputy Secretary" Notings from the Municipal Files:-
36. Thereafter we have the notings from the Municipal files which show that consequently the City Engineer has written to landowner on 27.9.1996 to return the amount paid to him for acquisition of final Plot No.110 T.P. Scheme, No.1 with interest at the rate of 12%, and secondly to transfer concerned land bearing survey No.261 Hissa No.1/2 at Lohegaon free of cost and without any encumbrances. The letter further stated that only after compliance of the above two conditions he will be given permission for development of F.P. No.110. It then stated that building completion certificate will be given only after the procedure under Section 37 (1) of the MRTP Act for deleting Survey No.261 Hissa 2/1 at Lohegaon, Hadapsar from the agricultural zone, and reserving it for primary school is completed, and sanctioned by the State Government.
37. Thereafter there is one more note of the Municipal Commissioner dated 21.9.1996 which records the opinion of the Senior Law Officer that the permission of the general body of PMC will be required for entering into an agreement for deleting the reservation of plot at Erandawana. With respect to the same the commissioner has recorded as follows:- "However, since the State Government has given clear orders to take action under Rule 13.5 of the Development Control Rules of Pune for complying with the subject matters and since 30 directives have been given for making such change, no permission of the Pune Municipal Corporation is necessary". Subsequent Developments
38. Consequently, the subsequent steps have been taken. The landowner has returned the amount as sought, a deed of settlement has been entered into between the landowner and the PMC, and Commencement Certificates have been issued on 28.11.1996 and 3.5.1997 for the two buildings proposed to be constructed. An Occupation Certificate dated 20.12.1997 was also given for a part of the building completed thereafter namely, B Wing containing 24 flats for the tenants. It is however interesting to note that PMC instructed its counsel on 19.11.1996 to withdraw its first appeal in the High Court as directed by the Government even before the landowner returning the amount of compensation with interest on 22.11.1996.
39. It has so transpired that though the land at Lohegaon was handed over to PMC as proposed, subsequently the Municipal Corporation found that there was not so much need of a school at Lohegaon, but a school was needed at Sinhagad Road, Dattawadi. The procedure for changing the zone of the land at Lohegaon as required under Section 37 of the MRTP Act was also taking its own time at the municipal level. Once again there was a correspondence between the PMC and the Government in this behalf.
The Commissioner wrote to the Dy. Secretary, UDD on 28.5.1998 for a modification in the conditions in the Government letter dated 3.9.1996 to get the school constructed at Dattawadi (instead of Lohegaon) in lieu of the school reservation on plot no. 110 31at Prabhat road. At this stage for the first time we have the letter from the developer dated 15.7.1998 addressed to the City Engineer of PMC signed by Shri Girish Vyas for the Vyas Constructions, stating that he was prepared to offer an alternative site admeasuring 3000 sq. meters at Mundhwa within PMC area which is in residential zone.
This was to avoid the difficulty concerning the change of zone. Additionally he was prepared to deposit an amount with PMC equivalent to the cost of construction of 500 sq. meters as per PMC's standard specifications, and PMC may construct the school whenever and wherever it required. He further sought that on his doing so, the final completion certificate be issued so that the flat purchasers can occupy their flats in the building on F.P. No.110 which was almost ready.
40. The Government file contains one more note made by the Under Secretary Shri Rajan Kop and signed by Shri Deshpande on 22.7.1998. It is clearly recorded below the note that it was marked for the Additional Chief Secretary to the Chief Minister, and also for the Chief Minister. The note mentions that there has been substantial criticism in local newspaper about this matter. It is stated that the issue was raised in the general body of PMC, and it was represented that an amenity in the area is being destroyed by deleting the reservation for a primary school.
The Commissioner had defended the decision by contending that although 3450 sq. meter area of reservation of F.P. No.110 was being deleted, reservation on 8219 sq. meters on adjoining two plots was being maintained. It was also pointed out by the Commissioner that an additional amenity was being created in another area. The note further records 32that in the meanwhile the proposal to shift the reservation on the plot at Lohegaon had been filed (i.e. disapproved) by the Standing Committee of PMC. Last para of this note states as follows:- "Senior Chief Secretary of Hon. Chief Minister has issued instructions to put up a self explanatory note in this entire matter for perusal of Hon. Chief Minister.
It is further instructed to include the matters wherein the Government has taken a decision in this matter as also in another matter prior thereto, the information provided and points suggested by Municipal Corporation with respect to the matters of deletion of reservation from Pune City Development Plan, etc., Such note containing the full background, factual and other aspects of the matter would be useful for Hon. Chief Minister if certain questions are raised with respect to the said matter in the current session of Legislative Assembly."
41. On receiving the developer's letter dated 15.7.1998, the Commissioner once again wrote to Under Secretary UDD on 23.7.1998 suggesting acceptance of the two proposals of the developer, but seeking orders of the government therefor. It is material to note at this stage that in the Government file there is a clear noting of the Principal Secretary UDD dated 24.7.1998 that the application of Rule 13.5 in the matter under question was not legal.
As the note states:- ".......With due respect to the persons
