Civil Appeal No 2537 of 1985 etc
From the Judgment and Order dated 2741984 of the Bombay High Court in OSWP No 704 of 1984
GG Kalsekar KMM Khan N Nettar and SN Bhat for the Appellants
SK Dholakia Ashok H Desai AM Khanwilkar ASBhasme DN Mishra section Sukumaran GE Vahanvati VB Agarwala BB Agarwala RB Hathi Khanawala for the Respondents
Vinod A Bobde Mrs J Wad and Mrs Aruna Mathur for the Intervener
922 The Judgment of the Court was delivered by DUTT J
The subject matter of this appeal by special leave is the permission for development of the land granted in favour of respondent No 5 who proposed to construct a five star hotel on a tract of land measuring 4482049 square yards at Bandra Bombay bearing RS Nos 416 Part and 417
The land in question had been purchased by the respondent No 5 Enjay Estates Pvt Ltd from its erstwhile owner Byramji Jeejeebhoy Pvt Ltd In the 1966 sanctioned Development Plan of Greater Bombay the said land was shown in the residential zone and a contiguous parcel of land measuring 18000 sq
was shown as a green belt
With a view to developing the disputed land the respondent No 5 submitted a plan to the Municipal Corporation of Greater Bombay for the construction of a five star hotel
The Commissioner of the Municipal Corporation however rejected the plan on the sole ground that it was proposed to earmark the said land under reference as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing
Being aggrieved by the said rejection of the plan the respondent No 5 pref erred an appeal to the Government of Maharashtra under section 47 of the Maharashtra Regional and Town Planning Act 1966 hereinafter referred to as the Act 
The appellants who are rate payers of the Municipal Corporation of Greater Bombay and claim to be members of various ecological action groups appeared in the appeal and opposed the same contending inter alia that the whole of the said land should be kept reserved for a green belt or recreational ground in the interest of the general public
The appeal was heard by the Minister of State for Urban Development the respondent No 2 herein
The respondent No 2 set aside the order of the Commissioner of the Municipal Corporation rejecting the plan submitted by the respondent No 5 after hearing the petitioners as also the Municipal Commissioner and directed sanctioning of the plan on certain conditions which will be referred to later in this judgment
The Municipal Corporation accepted the appellate order and did not challenge the order of the respondent No 2
But the appellants filed a writ petition challenging the legality of the order of the respon 923 dent No 2 granting sanction of the plan submitted by the respondent No 5 for the construction of a hotel on the said land
The writ petition was however dismissed by the Division Bench of the High Court by the judgment under appeal
At this stage we may refer to some of the provisions of the Act
It is an Act to make provision for planning the development and use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor to make better provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective to provide for the creation of new towns by means of Development Authorities to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans and for purposes connected with the matters aforesaid
Section 29 defines Development Plan to mean a plan for the development or re development of the area within the jurisdiction of a Planning Authority and includes revision of a development plan and proposals of a Special Planning Authority for development of land within its jurisdiction
Under section 219 Planning Authority means a local authority and includes a Special Planning Authority constituted or appointed under section 40
Chapter III of the Act contains provisions for the Development plan
Section 23 provides for the declaration of intention by the Planning Authority to prepare a Development plan
Section 26 provides for the preparation and the publication of notice of draft Development plan
Under section 30 the Planning Authority has to submit the draft Development Plan to the State Government for sanction
Section 31 provides for the sanction to the draft Development plan by the State Government
Section 43 provides inter Ala that after the date on which the declaration of intention to prepare a Development plan for any area is published in the Official Gazette no person shall carry out any development of land without the permission in writing of the Planning Authority
Section 45 deals with grant or refusal of sanction for development by the Planning Authority
Section 45 enjoins that the Planning Authority in considering an application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act
Section 47 provides for an appeal to the State Government or to an officer appointed by the State Government by any applicant aggrieved by an order granting permission on conditions or refusing permission under section 45
In allowing the appeal of the respondent No 5 and directing 924 sanction of the development plan the respondent No 2 observed that in view of the clear provisions of sections 46 and 316 of the Act and having regard to the position that in the sanctioned plan of 1966 the said land was included in the residential zone and no proposal to exclude it therefrom in the draft revised development plan had been published the Municipal Commissioner was not justified in rejecting the application for approval of the plan submitted by the respondent No 5 on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan
We have already referred to section 46 of the Act which provides that the Planning Authority in considering the application for permission shall have due regard to the provisions of any draft or final plan or proposals published by means of notice submitted or sanctioned under the Act
It seems that the respondent No 2 was of the view that the Planning Authority could only take into its consideration any draft or final plan or proposal which had been published by means of notice or sanctioned under the Act as provided in section 46
There is in our opinion some force in the contention made by Mr Kalsekar learned Counsel appearing on behalf of the appellants that the respondent No 2 has misunderstood the provisions of section 46
It is submitted by the learned Counsel that the Municipal Corporation was entitled to take into consideration other relevant facts including the contemplated revision of the plan apart from those mentioned in section 46
In support of his contention the learned Counsel has placed reliance on an unreported decision of a learned Single Judge of the Bombay High Court in Life Insurance Corporation of India and Another vs Municipal Corporation of Greater Bombay and Others Writ Petition No 2944 of 1932 disposed of on 631984
In that case a development application was rejected by the Municipal Corporation on the ground that the property was proposed to be reserved for public purposes or for recreational ground in the draft revised development plan and the High Court repelled the challenge to the decision taking the view that even the proposed revision could be taken into account as one of the relevant factors
There can be no doubt that if there be any other material or relevant fact section 46 does not stand in the way of such material or fact being considered by the Municipal Corporation for the grant or refusal to grant sanction of any development plan
In the unreported decision of the High Court the relevant fact that was taken into consideration was the draft revised development plan even though the plan was not published
In the instant case however at the time the Municipal Commissioner rejected the plan submitted by the respondent No 5 there was no draft revised development plan in existence
925 It was in contemplation
If there had been such a plan the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan submitted by the respondent No 5
But as there was no such draft revised plan as has been stated before this Court even by the Counsel for the Municipal Corporation the Municipal Commissioner was not justified in merely relying upon a proposal for the preparation of a draft revised plan
An order rejecting a development plan submitted by the owner of the land should be supported by some concrete material
In the absence of any such material it will be improper to reject the plan on the ground that there is a proposal for revision of the draft plan or that such a revision is under contemplation
We are therefore of the view that the ground for rejecting the plan submitted by the respondent No 5 was not tenable and the appellate authority was justified in allowing the appeal
It is urged by Mr Kalsekar that in any event no appeal lay under section 47 when the Municipal Corporation had decided to revise the development plan
We are afraid we are unable to accept the contention
The same contention was advanced before the respondent No 2 and it was rightly rejected
Section 47 of the Act does not warrant the contention urged by the learned Counsel
In our opinion to hold that after the Municipal Corporation had decided to revise the development plan no appeal would be competent to the State Government under section 47 would amount to legislating and rewriting the provision
Such a contention is without any substance and is rejected
The respondent No 2 directed sanction of the plan out of 4482049 sq yds
belonging to the respondent No 5 on the following conditions i 15 Recreation space to be left in Block A  shall be kept on the southern side of the plot abutting the green space left from Block B  after merging the Road area in the Green space
ii The Development shall be allowed IOD and CC shall be issued as per the Development Control Rules
iiiThe FSI of the road area would be admissible on plot A  as per Development Control Rule 102
iv The Municipal Commissioner Municipal Corporation of Greater Bombay Bombay shall take over the possession of 926 the land proposed to be kept as Green on southern side abutting the sea after getting the plots properly demarcated
The Municipal Commissioner MC GE Bombay may consider the proposal of allowing the development and maintenance of the park and garden space by the applicant party at their own cost after obtaining the possession of the lands now proposed to be kept green
The permission for development of plots as per plans submitted by appellants be granted by the MCB MC subject to the conditions mentioned above
We are told that after the above conditions are worked out the area that will be available to the respondent No 5 for the construction of the hotel is only 1995110 sq
It is therefore apparent that in granting sanction to the plan the respondent No 2 was quite alive to public interest
At this stage we may notice a very significant development that has taken place during the pendency of this appeal namely that the Municipal Corporation has subsequent to the judgment of the High Court prepared and published on April 30 1984 a draft revised development plan
The plan of the respondent No 5 is not inconsistent with the draft revised development plan
This fact demolishes all the contentions of the appellants against the plan submitted by the respondent No 5
Realising this difficulty Mr Kalsekar assailed the draft revised plan on the ground that it was prepared in accordance with the direction of the respondent No 2
This contention of the learned Counsel has no foundation whatsoever
There is no material on record to show that the Municipal Corporation which is the Planning Authority had prepared the draft revised plan in accordance with the direction of the respondent No 2
The respondent No 2 in our opinion has acted in public interest by imposing the conditions mentioned above
The conditions would show that considerable area out of the disputed land has been reserved for recreational ground or green belt
The plan as sanctioned by the respondent No 2 with the conditions imposed has been shown in the draft revised plan
It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it in the High Court or before this Court
In the circumstances there is no merit in this appeal challenging the order of the respondent No 2 sanctioning the development plan of the respondent No 5 927 Now we may take up the two Special Leave Petitions being Special Leave Petition Civil No 173776 of 1985 and Special Leave Petition Civil No 17377 of 1985
A few facts may be stated
The Municipal Corporation passed a resolution on 3121973 inter Ala extending the park reservation by including the remaining area of the land comprised in RS No 416 and RS No 417 part at Bandra
By another resolution dated 1431974 the first resolution was modified limiting the reservation for the park to 7000 sq
out of the disputed land
The petitioners who are the appellants in the above appeal filed two Misc
Petitions namely Misc
Petition No 463 of 1974 challenging the legality and validity of the resolution dated 1431974 and Misc
Petition No 1406 of 1978 challenging the order of the Government of Maharashtra dated 2571978 exempting the disputed land under section 20 of the Urban Land Ceiling and Regulation Act 1976 hereinafter referred to as the Urban Land Ceiling Act 
Both the Misc
Petitions were dismissed by a learned Single Judge of the Bombay High Court
Two appeals were preferred by the petitioners against the judgment of the learned Single Judge to the Division Bench
On July 30 1984 when the appeals were taken up for hearing a prayer was made by the learned Counsel for the petitioners for an adjournment for two weeks on the ground that Shri Bhore the Advocate on Record had met with an accident and the learned Counsel was unable to proceed with the appeals without the Advocate on Record
The learned Judges of the Division Bench did not accede to the prayer of the learned Counsel for an adjournment for two weeks on the ground that the appeals were old appeals of 1979 and that the learned Counsel who prayed for adjournment himself appeared throughout the proceedings as an Advocate
The learned Judges however adjourned the appeals to the next day that is July 31 1984 to enable the learned Counsel to be ready with the matter
On the next day the learned Counsel did not appear and the learned Judges of the Division Bench disposed of the appeals ex parte by a judgment dealing with the contentions of the petitioners
The result was that both the appeals were dismissed
We do not think that we are called upon to consider whether the learned Judges should have granted an adjournment for two weeks as was prayed for by the learned Counsel
Suffice it to say that if an adjournment had been granted multiplicity of proceedings could have been avoided
Be that as it may the petitioners filed two applications for review
Both the said applications for review were dismissed by the 928 Division Bench after considering all the points including certain additional grounds to the effect that certain contentions had not been dealt with earlier by the judgment dated October 910 1985
The petitioners have not challenged the judgment of the High Court passed on the review applications
They have however filed before this Court the above two Special Leave Petitions
Special Leave Petition Civil No 17376 of 1985 arises out of Misc
Petition No 463 of 1974 whereby the petitioners challenged the legality and validity of the said resolution dated 1431974
We are of the view that the contention of the petitioners against the validity of the resolution is no longer tenable regard being had to the fact that the draft revised development plan has since been published and the plan submitted by the respondent No 5 and conditioned by the respondent No 2 is not inconsistent with the draft revised plan
In that view of the matter Mr Kalsekar also has not seriously pressed the validity of the said resolution
Accordingly Special Leave Petition Civil No 17376 of 1985 is liable to be dismissed
So far as Special Leave Petition Civil No17377 of 1985 is concerned it has been strenuously urged by Mr Kalsekar that in granting exemption to the respondent No 5 the authority concerned has violated the relevant guidelines and also the provision of section 20 of the Urban Land Ceiling Act
Learned Counsel points out that one of the grounds for exemption is that 75000 sq
of vacant land is available for the development of gardens
As a matter of fact Counsel submits it is not a vacant land but contains 350 houses
It is submitted that granting exemption on the ground of availability of 75000 sq
of open site for the purpose of gardens is a fraud on the Urban Land Ceiling Act
It is accordingly urged by the learned Counsel that the order granting exemption should be quashed
The above grounds of challenge to the order of exemption granted to the respondent No 5 have all been considered by the High Court in its judgment disposing of the review applications
The petitioners have not challenged the judgment on review applications
The petitioners are only interested in seeing that sufficient area is kept reserved for a park or recreation ground for the benefit of the members of the public
They are not in our opinion concerned with the question as to the legality or otherwise of the exemption granted by the Government to the respondent No 5 under the Urban Land Ceiling Act
A copy of the draft revised development plan has been produced before us by Mr Desai learned Counsel appearing on behalf of 929 the respondent No 5
We are satisfied that the question whether or not sufficient quantity of land has been kept reserved for park and recreation ground has been adequately considered and taken into account by the High Court
In the circumstances we do not think that we are called upon to decide the legality or otherwise of the order granting exemption to the respondent No 5 under the Urban Land Ceiling Act
There is therefore no substance also in Special Leave Petition Civil No 17377 of 1985
In the result the appeal and both the special leave petitions are dismissed
There will however be no order as to costs
GN Appeal and Petitions dismissed


Summary:
 A Division Bench of a High Court made certain observations casting reflections on the conduct of certain officials and their competence to decide matters in the quasi judicial capacity
In the appeal by special leave the Charity Commissioner sought redressal in respect of such observations
A direction against Respondent No 16 was also sought
Disposing of the appeal this Court  HELD 1
The High Court might well have avoided casting reflections on the Deputy Charity Commissioner who was merely discharging his judicial functions under the Act
He should have been permitted to discharge his function in regard to the issues arising before him in the light of his own independent perspective
The observations made by the Single Judge on merits in regard to the interpretation of the clauses of the Will could not have influenced even the trial court
Besides an appeal was pending before the Division Bench
Taking a view different from the one reflected in the judgment of the Single Judge could not be said to have been made in scant regard of the judgment nor can it be construed as exhibiting disrespect for the High Court
The Division Bench went too far in observing to the effect that what the officer had done in discharging his quasi judicial functions would constitute contempt of Court
The official was entitled to take his own view subject to his decision being questioned in accordance with law
He had not been amiss or at fault in taking the view which commended itself to him and which he was at full liberty to take under the law
The observations made against the Deputy Charity Commissioner should be treated as non existent
So also the observations made in regard to the mode of recruitment to the office in question
950G H 951A E 2
The status quo in regard to the property in question shall be maintained
Respondent No 16 shall not get executed or obtain a sale 950 deed in respect of the property in his favour or in favour of his nominees or assignees till the question is finally disposed of
The Assistant Charity Commissioner before whom the matter is pending will have full liberty to decide the matter in accordance with law in the light of his own perception of the matter without being influenced one way or the other by any observation made in the judgment of the learned Single Judge or in the judgment of the Division Bench of the High Court
951H 952A B The Court directed the Assistant Charity Commissioner to dispose of the matter with expedition preferably within the outside limit of six months 952C