Civil Appeal No 2107 of 1987
From the Judgment and Order dated 331986 of the Delhi High Court in Writ Petition No 2503 of 1985
RK Garg and DK Garg for the Appellant
MS Rao and CV Subba Rao for the Respondents
The Judgment of the Court was delivered by RAY J
Special leave granted
Heard arguments of learned counsel for the parties
This appeal by special leave is against the judgment and order dated 3rd March 1986 passed by the High Court at Delhi dismissing the writ petition No 2503 of 1985
The facts of the case in brief are that the appellant was appointed to the post of Craftsman Jawan on November 23 1973
We was sent to 3 EME Centre Bhopal for training
After completion of his two years  training he was posted to 80 EME Battalion Co 56
APO on July 25 1975
The appellant in view of his good service was promoted to the post of Naik and subsequently he was confirmed in that post
During his service as Jawan and as a Naik the appellant served at various places in the country including the field area at Punj Sector in 956 Jammu  Kashmir
The appellant was reverted from the post of Naik to the post of Jawan Craftsman by Lt Col GS Srivastava and he was thereafter directed to report to NEFA
The appellant joined his post in NEFA
However the appellant was subsequently transferred and posted in Panagarh
One Major NK Tiwari who was the Commanding Officer of the said regiment became very much displeased with the appellant as he did not comply with his directions to go to Kanpur to bring his personal goods from Kanpur to Panagarh
The appellant was harassed and maltreated in various ways
The appellant being unable to bear the torture caused to him approached Col RK Mehta Commanding Officer EME Depot Battalion Sikandrabad and surrendered to the mercy of the said Colonel
The Colonel advised the appellant to go back to Panagarh and report to his Unit
The appellant was sent with the certificate of surrender
On his return the appellant was not permitted to join his duty but he was taken into the custody immediately and thereafter he was directed by Major Tiwari to be treated without leave for three days and should be court martialled for the same
The appellant was charge sheeted for the purpose and he was convicted to 42 days imprisonment in military custody
During the period of his remaining in military custody he was given only a small sum of Rs60 and as such his family had to suffer much harassment
The appellant however on 12th September 1984 left Panagarh with his wife and children for Kanpur without taking any leave
It is stated that he became unwell and he was under the treatment of a doctor
After coming round he reported to Panagarh and reported in his Unit with the fitness certificate
The appellant was called by the Officer Commanding and he was served with a charge sheet on November 2 1984 wherein it was ordered by Major PS Mahant that the appellant be tried by a Summary Court Martial
It has been alleged that Major Mahant appointed his close associate Captain KJ Singh to record summary of evidence
The appellant was not given proper opportunity to defend himself
In the proceedings the appellant was not allowed to raise any objections
On 9th November 1984 the order of dismissal from service of the appellant was made by Major PS Mahant Commanding Officer in the summary court martial
The appellant challenged this order by a writ petition being Civil Writ Petition No 2503 of 1985 on the ground that the Commanding Officer was not legally competent to preside a summary court martial
It was also stated in the petition that the punishment of dismissal from service was disproportionate to the charge he was denied a fair 957 opportunity to defend himself and was in fact not permitted to ask questions to the witnesses
The appellant so prayed for issuance of an appropriate writ for quashing the impugned order of dismissal from service and also for a direction to the respondents to pay the entire arrears of salary and allowances which are legally due to him
The writ petition was heard by a Division Bench of the High Court at Delhi and it was dismissed on March 3 1986 holding inter alia that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel
It was also held that in the writ petition no objection was taken as to the competence of Major PS Mahant to act as a Judge in the Summary Court Martial nor objection was made to the effect that Captain KJ Singh ordered him to keep his mouth shut
It was also observed that besides Major PS Mahant who was presiding Summary Court Martial there were two other members
The appellant it was held had earlier been convicted four times and entries were made in the red ink
The appellant was absent from duty without any leave and he pleaded guilty before the court martial proceedings and as such there was no illegality in the order of dismissal made in the court martial proceedings
It is against this judgment and order the impugned appeal on special leave has been preferred before this Court
An affidavit in counter sworn by one Capt
DK Ghosh on behalf of the respondents has been filed
In paragraph 4 of the said affidavit it has been submitted that Rule 392 of the Army Rules deals with the disqualification of officers for General and District Courts Martial
The said rule says that an officer is disqualified for serving on a general or district court martial if he is the Commanding Officer of the accused
The appellant has assailed the court martial proceedings on the ground that the Commanding Officer served on the Court Martial and as such the court martial proceedings are in breach of Rule 392 of the Army Rules 1954
It has been further stated that the appellant was tried by a Summary Court Martial and not by a General or District Court Martial and Army Rule 392 does not apply to Summary Court Martial constituted under Section 116 of the 
It has been further stated that a Summary Court Martial may be held by a Commanding Officer of any Corps Department or Detachment of the regular army as stipulated by Section 116c of the 
It has been submitted that the appellant has been tried by a Summary Court Martial and he was sentenced to dismissal from 958 service on November 9 1984
It has also been stated that the proceedings have been attended throughout by two other persons in accordance with the provisions of Section 1161 of the said Act
It has been averred that in a case of Summary Court Martial as per Section 116 of the said Act the Commanding Officer shall alone constitute the Court
The proceedings of the Court shall be attended by two officersJCOs or one of either
It has been further stated that the appellant incurred the following red ink entries while serving with various units prior to the summary court martial i 14 days RI in military custody under AA Army Act Sec
39a on September 3 1975 by 80 EME Bn
ii 3 days RI in military custody under AA Sec
39a on 22nd June 1979 by 1 EME Centre
iii Reduced to the rank under AA Sec 63 on 24 January 1983 by 174 Fd
iv 28 days RI and 14 days detention in mil
custody under AA Sec
39a on 10th July 1984 by 986 AD
Regt WKSP
The appellant was issued a show cause notice for discharge being unsuitable inefficient soldier on 30th August 1984 to which he replied on 2nd September 1984
The appellant again became absent without leave on 13th September 1984
The appellant did not inform the Unit authority again of taking his family to Kanpur
While leaving for Kanpur he locked his quarter securely to keep possession of the family accommodation
The proceedings of the summary court martial were in accordance with the provisions of the and the order of dismissal from service of the appellant is a valid order
A rejoinder was filed by the appellant wherein he reiterated that the order of dismissal passed by the Commanding Officer Major PS Mahant was illegal and contrary to the provisions of natural justice
The charge sheet was given to the appellant by the aforesaid Major alleging that the appellant remained absent from 13th September 1984 to 30101984 without leave from the Unit s line and the said officer himself made an order that the appellant shall be tried by a summary court martial on that day
The said officer constituted the court of summary court martial and himself presided over the same
The order of dismissal was passed in violation of the rules of natural justice
It has also been submitted that the conviction of the appellant 959 was in utter breach of Articles 14 and 21 of the Constitution of India and as such the said order was liable to be set aside
The first submission on behalf of the appellant is that the constitution of the Summary Court Martial by the Commanding Officer Major PS Mahant is in contravention of Rule 392 of the Army Rules 1954
the relevant provisions of Rules 39 are in the following terms Rule 39   2 An officer is disqualified for serving on a general or district court martial if he a is an officer who convened the court or b is the prosecutor or a witness for the prosecution or c investigated the charges before trial or took down the summary of evidence or was a member of a court of inquiry respecting the matters on which the charges against the accused are founded or was the squadron battery company or other commander who made preliminary inquiry into the case or was a member of a previous court martial which tried the accused in respect of the same offence or d is the commanding officer of the accused or of the corps to which the accused belongs or e has a personal interest in the case Rule 392 provides that an officer who is the Commanding Officer of the accused or of the corps to which the accused belongs or who is an officer who convened the court or who is the prosecutor or a witness for the prosecution and who has a personal interest in the case is not eligible for serving on a general or district Court Martial
There are four kinds of court martials specified in Section 108 of the Army Act 1959
These are a General Courts Martial b District Courts Martial 960 c Summary General Courts Martial d Summary Courts Martial Section 116 of the said Act says that a summary court martial may be held by the commanding officer of any corps or department or detachment of the regular Army and he shall alone constitute the court
It further provides that the proceedings shall be attended throughout by two other persons who shall be officers or junior commissioned officers or one of either and who shall not as such be sworn or affirmed
In the instant case a summary court martial was held by the Commanding Officer Major PS Mahant in accordance with the provisions of Section 116 of the Army Act
The Commanding Officer of the Corps Department of Detachment of the Regular Army to which the appellant belongs is quite competent in accordance with the provisions of Section 116 of the said Act and as such the constitution of the summary court martial by the Commanding Officer of the Corps cannot be questioned as illegal or incompetent
It is neither a general court martial nor a district court martial where the appellant s case was tried and decided
In case of general court martial or district court martial Rule 392 of the Army Rules 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial
The summary court martial was held by the Commanding Officer of the corps Major PS Mahant and there are two other officers including Capt
KJ Singh and another officer to attend the proceedings
In such circumstances the summary court martial having been convened by the Commanding Officer of the corps according to the provisions of the  the first submission made on behalf of the appellant fails
Chapter 6 of the specifies the offences and also the punishments for such offences
Section 39a specifies that to be absent without leave constitutes an offence and Section 71e of the said Act provides dismissal from service as one of the punishments for such an offence
The appellant undoubtedly absented himself from duty without taking any leave from the lines as required under the 
The appellant was charge sheeted for the said offence and he was tried by a summary court martial convened by the Commanding Officer and after giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry
Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service
The submission 961 that the punishment is disproportionate to charge is wholly unsustainable
The summary court martial constituted by Major PS Mahant after considering the evidences has found the appellant guilty of the alleged charge and awarded the said punishment in accordance with the provisions of the 
As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality
It has been urged on behalf of the appellant that he raised an objection to Major PS Mahant to preside over the summary court martial
It has also been urged that at the time of taking evidence of the witnesses the appellant was asked to keep his mouth shut and as such the appellant could not cross examine the witnesses examined on behalf of the prosecution thereby the principles of natural justice have been violated
It appears that the appellant has not filed any objection before the summary court martial objecting to the presiding of the court martial proceedings by Major PS Mahant nor any such objection had been taken in the writ petition moved before the High Court
It is for the first time in the appeal which the appellant filed before the Chief of the Army Staff Competent Authority Army Headquarters New Delhi that he raised an objection to the presiding of Major PS Mahant as Judge of the court martial proceedings
It has been rightly held by the High Court that this is an after thought and as such this submission cannot be permitted to be made by the appellant after the court martial proceedings were completed and the order of dismissal from service was made
As regards the other objection that he was directed by Capt
KJ Singh to keep his mouth shut it is also without any substance in as much as it appears from the summary of the evidences recorded that the appellant in fact cross examined the prosecution witnesses
It is also evident from the judgment of the Delhi High Court that the appellant admitted his guilt of absenting from duty without taking any leave
Considering all these facts and circumstances the judgment and order passed by the High Court of Delhi appears to us as unassailable
We therefore dismiss the appeal and affirm the judgment and order of the High Court
There will be no order as to costs
NVK Appeal dismissed


Summary:
 A piece of land had been purchased for the construction of a five star hotel
In the sanctioned development plan the said land was shown in the residential zone and a contiguous parcel of land was shown as green belt
When the plan was submitted to the Municipal Corporation for the construction of a five star hotel the Commissioner rejected the plan on the ground that it was proposed to earmark the said land as a recreational ground with suitable internal network of roads during the revision of the development plan which was in the offing
Aggrieved by the rejection an appeal was preferred to the State Government under sec
47 of the Maharashtra Regional and Town Planning Act 1966
The appeal was heard by the Minister of State for Urban Development
The appellants herein members of various ecological groups and rate payers of the Municipal Corporation appeared and opposed saying that the land should be kept reserved for a green belt or recreational ground in the interest of the general public
However the Minister set aside the order of the Municipal Commissioner and directed the sanctioning of the plan on certain conditions
The Municipal Corporation accepted the appellate order and did not challenge it
But the appellants filed a Writ Petition challenging the legality of the order
The writ petition was dismissed by the High Court
The present appeal by special leave is against this dismissal
Meanwhile the Municipal Corporation passed a resolution extending the park reservation by including the remaining area of the land in question
By another resolution the first resolution was modified limiting the reservation for the park to 7000 sq
yards out of the dis 920 puted land
Thereafter the State Government exempted the disputed land under section 20 of the Urban Land Ceiling and Regulation Act 1976
The resolutions and the order were challenged in the High Court
The petitions were dismissed by a Single Judge of the High Court and later by the Division Bench on appeal
The Review Petitions also met the same fate
The petitioners have not challenged the judgment of the High Court passed on the review applications but filed before this Court the two special leave petitions challenging the legality and validity of the two resolutions and the order of Government giving exemption under section 20 of the Urban Land Ceiling and Regulation Act
Dismissing the appeal and the special leave petitions this Court  HELD 11 In allowing the appeal and directing sanction of the development plan the Minister 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 on the ground that the Bombay Municipal Corporation had decided to revise the 1966 Development Plan
The Minister was of the view that the Planning Authority could only take into consideration any draft or final plan or proposal which had been published by means of notice or sanctioned under the Act
When Municipal Commissioner rejected the plan there was no draft revised development plan in existence
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
The 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
Therefore the ground for rejecting the plan was not tenable and the appellate authority was justified in allowing the appeal
923H 924A B H 925A C 12 The Municipal Corporation has subsequent to the judgment of the High Court prepared and published a draft revised development plan
The plan is not inconsistent with the draft revised development plan
There is no material on record to show that the Municipal Corporation which is the Planning Authority had prepared the draft revised 921 plan in accordance with the direction of the Minister
The Minister has acted in public interest by imposing the conditions
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 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
926E H 2
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 and conditioned by the Minister is not inconsistent with the draft revised plan
The petitioners have also not seriously pressed the validity of the said resolution
928C D 3
This Court is not called upon to decide the legality or otherwise of the order granting exemption
These have 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 and are not concerned with the question as to the legality or otherwise of the exemption granted by the Government
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
928G H 929A