1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION PUBLIC INTEREST LITIGATION NO.66 OF 2003 Shri Mihir Yadunath Thatte, ] aged around 44 years, Occupation: ] Journalist, residing at A-5/30, ] Raksha Leela Society, Dattawadi, ] Pune – 411 030. ] .. Petitioner v/s. 1. State of Maharashtra, through the ] Secretary, Urban Development ] Department, Mantralaya, Mumbai-32. ] 2. The Pune Municipal Corporation ] having its office at Shivaji Nagar ] Pune 411 005 to be served upon the ] Municipal Commissioner, having his ] office address as above. ] 3. M/s. Padmanabh Realties Pvt. Ltd. ] a company registered as per ] provisions of the Companies Act,1956,] Represented through its Directors ] i) Mr. Avinash M. Bhosale, ] ii) Mrs. Gauri Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 4. M/s. Vanamali Realty Pvt. Ltd., ] a company registered as per ] provisions of the Companies Act,1956,] Represented through its Directors ] i) Mr. Avinash M. Bhosale, ] ii) Mrs. Gauri Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 5. M/s. Shashbindu Constructions Pvt. ] 2 Ltd., a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 6. M/s. Yugavrata Developers Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 7. M/s. Aadidev Constructions Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 8. M/s. Sahastrajit Realty Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 9. M/s. Dhardhar Developers Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 3 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 10. M/s. Shatamurti Realty Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 11. M/s. Yavuwahan Realty Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 12. M/s. Maheshan Realties Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 13. M/s. Trisma Construction Pvt. Ltd., ] a Company registered as per ] provisions of The Companies Act, ] 1956, represented through its ] Directors ] 4 i) Mrs. Gauri Avinash Bhosale, ] ii) Mr. Amit Avinash Bhosale, ] having its place of business at ] Bhosale Pavilion 759/34, ] Bhandarkar Road, Pune 411 004. ] 14. Smt. Venubai Santaram Khalate ] 15. Mr. Pandurang Santaram Khalate ] 16. Mr. Dattatraya Santaram Khalate ] 17. Mr. Laxman Santaram Khalate ] 18. Mr. Ramchandra Santaram Khalate ] 19. Smt. Vandana Bharat Khalate ] 20. Mr. Sandeep Pandharinath Khalate ] 21.Mr. Madhurkar Sadhu Khalate ] (for himself and as Karta of his HUF) ] 22. Mr. Hanumant Sadhu Khalate ] (for himself and as Karta of his HUF) ] Respondent Nos.14 to 23 R/at: ] S.No.92/B, Khalate Sadan, Parvati, ] Pune 411 009. ] And Respondent Nos.3 & 4 are ] represented through their Director ] Mr. Avinash Bhosale & Respondent ] No.5 to 23 are represented through ] their Power of Attorney Holder ] Mr. Avinash N. Bhosale, Indian ] Inhabitant, having its residence at ] Plot No.21, Jijai, Yeshwant Ghatge- ] -nagar Society, Ganesh Khind Road, ] Pune 411 007. ] .. Respondents Mr. D.A. Nalawade for the petitioner. Mr. R.M. Kadam, Advocate General with Mr. N.P. Deshpande, Assistant Government Pleader for the respondent No.1. Mr. K.K. Singhvi, senior counsel with Mr. R.G. Ketkar and Mr. R.M. Pethe for the respondent No.2. 5 Dr. Virendra Tulzapurkar, senior counsel with Mr. T.N. Subramanian and Ms. C.S. Radia for the respondent Nos.3 to 23. CORAM : R.M. LODHA & S.A. BOBDE , JJ. DATE OF RESERVING THE JUDGMENT : 19TH OCTOBER, 2006. DATE OF PRONOUNCING THE JUDGMENT : 21ST NOVEMBER, 2006. JUDGMENT: (Per R.M. Lodha , J.) By means of this writ petition, in the nature of Public Interest Litigation, the petitioner challenges the action of the State Government (Respondent No.1) under section 37 of the Maharashtra Regional Town Planning Act, 1966 (for short, `the Town Planning Act') in excluding the plot bearing Survey No.86 (Part) Parvati admeasuring 1.75 hectares from Hill Top Hill Slope Zone (HTHS Zone) and inclusion of the same in the Residential Zone of the city of Pune. 2. The petitioner claims to be renowned freelance Journalist. He is Trustee Secretary of a Trust named Rashtra Seva Pratisthan. He also claims to be a Trustee of Acharya Anand Rishiji Blood Bank at Pune. He claims to be the member of the Managing Committee of an organization “Hridayankit” founded to help cardiac patients from amongst down trodden. According to him, he has all along been in the forefront in Mr. Anna Hazare's drive against corruption and has, on his behalf, led several agitations in Pune. He is resident and tax payer of the Pune Municipal Corporation. 6 3. The petitioner has set up the case that the development plan for Pune city was published in the month of September, 1982 under the Town Planning Act. That development plan provides for preservation, conservation and development of the areas of natural scenery and landscape amongst other provision; while doing so, it has made special provision in respect of HTHS Zone. The Development Control Rules (DCR) dated 5th January, 1987 stipulates that the HTHS Zone should be reserved in favour of the various department of the government for afforestation and creating recreational places. By the Government notification dated 5th June, 1997, modified DCR were made operational for Pune Municipal Corporation and thereby the additional uses like swimming pools, sports and games, health clubs, cafeteria canteen, amusement park were made permissible in the HTHS Zone providing further that the maximum floor space area shall not exceed 4% of the total plot with ground floor structure without stilts. 4. The petitioner has averred that survey No.86 (Part) Parvati comprises of an area of approximately 22 acres. It also comprises various plots viz. survey No.86/1/1, survey No.86/1/1/2, survey No.86/1/2, survey No.86/2, survey No.86/3, survey No.86/4 and survey No.86/47. 5. The State Government, on 22nd August, 2000, suo motu issued direction to the Pune Municipal Corporation (PMC) under section 37(1) of the Town Planning Act to initiate proceedings for conversion of survey No.86 (Part) admeasuring 1.75 hectares from HTHS Zone to the residential zone. According to the petitioner, the aforesaid directive was issued on the ostensible ground that since survey No.87(Part) as well as survey No.86(Part) are situated at 7 the same hight and further that survey No.87(Part) has already been included in the residential zone under section 37 of the Town Planning Act and that it was desirable that survey No.86(Part) is also included in the residential zone. 6. Pursuant to the letter dated 22nd August, 2000, the Additional Municipal Commissioner vide letter dated 28th November, 2000 directed the Municipal Secretary of the PMC to table a resolution before the City Improvement Committee and the General Body to seek sanction to invite objections and suggestions from the citizens for excluding survey No.86 (Part) Parvati from the HTHS Zone and including the same in the residential zone and to issue public notice in the local newspapers and after receiving objections and suggestions from the citizens and after going through the same to prepare a report thereof under section 37(1) of the Town Planning Act and submit the same to the Government for its final approval. 7. Accordingly, the Municipal Secretary included the aforesaid subject in the agenda of the meeting of the City Improvement Committee dated 28th November, 2000 as subject No.537/536. The City Improvement Committee on that very day viz. 28th November, 2000 passed the resolution No.536 recommending to the General Body of the PMC for the inclusion of survey No.86 (Part) Parvati from HTHS Zone by following the procedure prescribed under section 37(1). 8. In pursuance of the said resolution dated 28th November, 2000, the proposal was placed before the General Body meeting which was scheduled on 20th December, 2000 vide agenda No.465. The General Body meeting was thereafter 8 scheduled on 26th December, 2000 and the aforesaid proposal was passed in the said meeting, though it is the case of the petitioner that there has been interpolation in respect of the record pertaining to the minutes of the meeting dated 26th December, 2000 and that, in fact, for the modification of survey No.86 from HTHS Zone to residential zone, no resolution was ever passed by the General Body of the Pune Municipal Corporation. 9. The petitioner has set up the case that the procedure contemplated under section 37 of the Town Planning Act for modification of the final development plan has not been followed at all. According to him, under section 37(1), the direction of the State Government has to be tabled before the General Body for publishing the notice in the official gazette inviting objections and suggestions in this regard. The General Body then has to pass a resolution delegating its power of giving the hearing to the affected persons before a competent official of the Municipal Corporation who thereafter has to hear any such person and submit the proposed modification again to the General Body, which has to deliberate on the same and thereafter, pass a resolution for submitting the proposed modification with the minutes, if any, to the State Government for sanction. The submission of the petitioner is that, while carrying out any modification to the final development plan in pursuance of any direction given by the Government under section 37(1) of the Town Planning Act, the proposal has to come up twice before the General Body; initially for inviting objections and suggestions and subsequently, after hearing the objections and suggestions, to provide opportunity to the General Body to deliberate on the proposed modification, and suggest amendment, if any. According to him, it is only after the said procedure, the resolution has to be forwarded to the State Government for 9 sanction which has not been done. The petitioner has averred (by way of amendment) that the modification proposal sent by the City Engineer/Municipal Commissioner cannot be considered to be the lawful proposal sent by the Planning Authority to the Government; the hearing to the affected persons was given by the City Engineer and the finding was also recorded by him which he was not empowered to and, thus, there is total violation of the procedure prescribed under section 37(1) of the Town Planning Act for effecting the modification. 10. The petitioner has also averred that the deletion of survey No.86(Part) Parvati from HTHS Zone and its inclusion in the residential zone amounts to change in the character of the development plan which is impermissible under section 37 of the Town Planning Act. He also alleges that change of the user of survey No.86 (Part) Parvati from HTHS Zone to the residential zone amounts to modification of a substantial nature as this amounts to reduction in areas of actual existing site reserved for public amenities. 11. In opposition to the writ petition, on behalf of the PMC, two reply affidavits have been filed. The first reply affidavit was filed on 7th October, 2002 and the other on 11th October, 2002. The reply affidavit dated 11th October, 2002 through the Municipal Secretary deals with the aspects relating to the resolution passed by the General Body on 26.12.2000. It is stated in that reply affidavit that whatever has been stated by the petitioner with regard to the General Body meeting held on 26.12.2000 and the resolution passed in that meeting, are only hear-say and based on the newspaper cuttings. The petitioner was not present in the said 10 meeting; he could not have been as he was not member of the Municipal Corporation. The Municipal Secretary has given the details as to how the subject was called out by him on 26.12.2000, the members who proposed and seconded the subject, the passing of the original resolution and the amendment at the end of the meeting on 26.12.2000 and the mistake committed by the stenographer in preparing the minutes of the meeting of the General Body. He has stated that the minutes of the meeting of the General Body dated 26.12.2000 were circulated to all the Corporators of the PMC on 24.7.2001 and the minutes were confirmed in the meeting of the General Body held on 27..7.2001. In the said meeting held on 27.7.2001, Mrs. Vandana Chavan was also present. He has highlighted the position that between the meetings of the General Body dated 26.12.2000 and 27.7.200, 4/5 general body meetings were held but nobody raised any objection with regard to the resolution passed on 26.12.2000. Even, at the time of confirmation of the minutes on 27.7.2001, no objection was raised. He has emphasized that the resolution No.417 passed in the General Body dated 26.12.2000 is in accord with law and there is no forgery whatsoever. 12. The other affidavit in reply by the PMC has been filed through the Development Engineer on 7th October, 2002. It is stated that way back on 29.11.1988, the Additional Secretary, Urban Development Department, Government of Maharashtra issued directive under section 37(1) of the Town Planning Act for inclusion of survey No.87/A/1 and survey No.86(Part) of Parvati, Pune in the residential zone. The PMC submitted the proposal to the State Government on 11.3.1992 after following the requisite procedure under section 37 of the Town Planning Act. The State Government vide notification dated 28.5.1992 sanctioned exclusion 11 of survey No.87/1A/1 from HTHS zone and its inclusion in the residential zone. In so far as survey No.86 (Part) is concerned, no decision was communicated. Non-inclusion of survey No.86 in residential zone led to the filing of the writ petition No.6205 of 1997 by its owners. The said writ petition was disposed of by this court on 29.1.1998 directing the State Government to decide the application dated 8th August, 1997 made by the owners after giving them reasonable opportunity of being heard as well as after considering all relevant documents. It is stated that pursuant to the direction given by this court on 29.1.1988 in writ petition No.6205 of 1997, the hearing was given by the Minister for Urban Development Department on 10.5.1999. The Additional Secretary under letter dated 27.9.1999 informed the PMC that proposal for exclusion of survey No.86(Part) Parvati from HTHS Zone and its inclusion in residential zone is rejected. The Power of Attorney holder of the owners of survey No.86 (Part), then again, submitted a proposal on 19.11.1999 for its exclusion from the HTHS Zone and inclusion in the residential zone. By the letter dated 25.2.2000, the PMC submitted its report opposing such conversion. Thereafter, the parties were heard by the Chief Minister who was holding port-folio of Urban Development Department on 9.3.2000 then the directive was issued under section 37 of the Town Planning Act to the PMC on 22.8.2000 to initiate proceedings under section 37(1) of the Town Planning Act by issuing notice for inviting objections/suggestions from the public within 60 days from the receipt of the said directive and after completion of the formalities under section 37(1), submit the proposal to the State Government for its sanction. In the affidavit dated 7th October, 2002, the Development Engineer has stated that pursuant to the directive dated 22.8.2000, the City Engineer of the PMC put up the submissions before the Additional Commissioner (Special) which 12 was followed by the proposal dated 28.11.2000 submitted by the Additional Municipal Commissioner (Special) for obtaining sanction of the General Body through City Improvement Committee. The City Improvement Committee passed resolution No.536 on 28.11.2000 recommending to the General Body to initiate proceedings under Section 37(1) of the Town Planning Act. The General Body passed resolution No.417 alongwith the amendment on 26.12.2000 according sanction for following the legal formalities laid down under section 37(1) of the Town Planning Act and submitting the proposal to the State Government for its final sanction. Pursuant to the General Body resolution dated 26.12.2000, the notification in the Maharashtra Government Gazette was published on 11.1.2001. The public notice also appeared in two news papers viz., `Daily Sakal' and `Indian Express' on 1.2.2001 inviting objections/suggestions from the public. The public were called upon to submit their objections/suggestions within one month from the date of publication of the notice in the official gazette. In response thereof, 39 objections/suggestions were received. The hearing was completed on 26.2.2001. Neither the petitioner nor the Corporators from whom the petitioner claims to have obtained information, submitted any objections/suggestions. After completing the requisite formalities, the proposal was submitted to the State Government for final sanction under section 37(1) on 26.4.2001. It is, thus, stated that there has been no violation of the procedure prescribed under section 37(1) for effecting the modification excluding survey No.86 (Part) from HTHS Zone and its inclusion in the residential zone. 13. The State Government in opposition to the writ petition filed its reply affidavit on 28th October, 2002 through Vijay R. 13 Karulkar, Under Secretary, Urban Development Department, in the reply affidavit stated that after initial rejection of the proposal for the conversion of survey No.86(Part) to the residential zone, the Power of Attorney holder of the owners made another application for conversion of survey No.86 (Part) to residential zone on the ground that the adjacent survey No.87 Parvati has already been converted into the residential zone. The Urban Development Department sent that application to the Director of Town Planning for his report who by his letter dated 21.3.2000 reported that the subject land has a mild slope and is in level with the adjacent survey No.87. The Director of Town Planning, accordingly, recommended inclusion of survey No.86(Part) in the residential zone. The State Government then issued directive to the PMC under section 37(1) of the Town Planning Act on 22nd August, 2000 for converting the land bearing survey No. 86(Part) Parvati from HTHS Zone to residential zone. The PMC then passed General Body resolution No.417 on 26.12.2000 and submitted the modification proposal to the Government for sanction under section 37. The State Government consulted the Director of Town Planning as required under section 37(2). The Director of Town Planning by his letter dated 11.5.2001 recommended that the modification as proposed by the PMC may be sanctioned. It is also stated that in the meanwhile, writ petition Nos.5296 of 2000 and 5820 of 2000 filed by Ujwal Keskar and others were disposed of by the order dated 20th April, 2001 wherein the statement has been recorded on behalf of the State Government that the State Government on its own will not change the zoning of lands falling in HTHS Zone from 38 villages that are newly merged in PMC and for which the development plan is being prepared. Another writ petition No.4805 of 2001 was filed by the land owners of survey No.86 (Part) before this court making a grievance that the State 14 Government was not taking decision on their representation. By the order dated 9.10.2001, the Division Bench made it clear that the order in the writ petition Nos.5296 of 2000 and 5820 of 2000 shall not stand in the way of the State Government in taking final decision pursuant to the directive of the Government dated 22nd August, 2000 by which process under section 37 of the Town Planning Act had already commenced. In the reply affidavit, the State Government has asserted that the notification changes the zoning of lands which merely admeasures 1.75 hectares which is not substantial area; it is adjacent to the already developed residential area. It is also asserted that the modification in the development plan vide notification dated 4.4.2002 would not change the character of the development plan of the city of Pune and that the area to be converted in the residential zone is not too large to affect the ecological balance. The State Government reiterated that the full procedure contemplated under section 37 has been followed by the State Government as well as Pune Municipal Corporation before issuance of the notification dated 4.4.2002. 14. The petitioner filed the affidavit in rejoinder on 10th March, 2003 in the light of the two reply affidavits filed by PMC through the Municipal Secretary and the Development Engineer (Development Plan) and the reply affidavit filed by the State Government through the Under Secretary, Urban Development Department. In the affidavit-in-rejoinder, the petitioner sought to reiterate that the minutes pertaining to purported resolution No.417 dated 26th December, 2000 are forged and fabricated and that interpolation was carried out in the minutes. He sought to reiterate that the directive issued by the State Government to the PMC under section 37(1) of the Town Planning Act on 22nd August, 2000 15 to initiate proceedings under section 37(1) of the Town Planning Act by issuing notice/inviting objections/ suggestions from the public as regards the deletion of plot bearing survey No.86(Part) from HTHS Zone to residential zone after the rejection of the earlier representation on 27th September, 1999 was illegal and motivated. He also reiterated in the rejoinder that the notification issued under section 37(2) on 4th April, 2002 suffers from illegality as it has been issued without following due procedure prescribed under the Act. 15. On behalf of the respondent Nos.3 to 23, the reply affidavit was filed on 26.10.2004. 16. By another affidavit filed by Shri Vijay R. Karulkar, Under Secretary, Urban Development Department on 18th February, 2005, it is sought to be clarified that direction by the State Government to the PMC to take proceedings under section 37(1) of the Town Planning Act after rejection of the proposal of the PMC to convert survey No.86 (Part) Parvati from HTHS Zone to residential zone on 27.9.1999 was not politically motivated. It is stated that the PMC way back in or about the year 1987-88 proposed to the State Government for conversion of lands situate at villages Munjeri and Parvati which were included in HTHS Zone in the sanctioned development plan to the residential zone. Thereupon, by the letter dated 12.8.1988, the State Government called for the report of the Director of Town Planning, Pune. The owner of the land bearing survey No.87/1A/1 made the representation to the State Government for conversion of his land from HTHS Zone