Case: Shri Girish Vyas &amp; Others Vs. The State of Maharastra &amp; Others

of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities. Operative order with respect to the disputed buildings 157. We have held the direction given by the State Government for the deletion of reservation on Final Plot No.110, and the commencement and occupation certificates issued by the Pune Municipal Corporation in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. As far as the building meant for the tenants is concerned, the developer as well as PMC have indicated that they have no objection to the building being retained. As far as the ten storied building meant for the private sale is concerned, the developer had offered to hand over half the number of floors to PMC, provided it permits the remaining floors to be retained by the developer. PMC has rejected that offer since the plot was reserved for a primary school. The building must therefore be either demolished or put to a permissible use. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money, and in a way could be considered to be far more than the cost of construction of this building. Removal of this building is however not going to be very easy. It will cause serious nuisance to the occupants of the adjoining buildings due to noise and air pollution. The citizens may as well initiate actions against the PMC for appropriate reliefs. It is also possible that the developer may not be able to remove the disputed building within a specified time, in which case the PMC will have to incur the expenditure on removal. It will, therefore, be open to the developer to redeem himself by offering the entire building to PMC for being used as a primary school or for the earmarked purpose, free of cost. If he is so inclined, he may inform PMC that he is giving up his claim on this building also in favour of PMC. 158. The High Court has not specified the time for taking the necessary steps in this behalf. Hence, for the sake of clarity, we direct the developer to inform the PMC within two weeks from today whether he is giving up the claim on the ten storied building named `Sundew Apartments apart from the tenants building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final. 159. As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants. 160. The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We therefore, absolve both of them from paying costs to the original petitioners. The order with respect to payment of cost of Rs. 10,000/- against the then Chief Minister and the Minister of State to each of the original petitioners however remains. Over and above we add Rs. 15,000/- for each of them to pay to the two petitioners separately towards the cost of these appeals in this Court. Thus, the then Chief Minister and the Minister of State shall each pay Rs. 25,000/- to the two petitioners separately. 161. The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorised construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously. The conclusions in nutshell and the consequent order

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]53. In the instant case the officers of the Urban Development Department as well as of the PMC took the stand (until it was possible), that the procedure under Section 37 will have to be followed. This was because what was contemplated was a modification of a proposal made in the Development Plan. A reservation for an amenity was sought to be shifted (which will in fact mean it was sought to be deleted) from the place where it was provided. If that was the official view of UDD and PMC, what was required was a compliance of the procedure under Section 37(1) and (2). Ultimately, since the direction was given by the State Government, (and if the State Government thought that there was an urgency), it was necessary for it to act under Section 37 (1AA), and to publish a notice in the Official Gazette to invite objections and suggestions from the public at large, and also from the persons affected by the proposed modification. Thereafter the State Government was required to send the proposal to PMC for its say and then it had to consult the Director of Town Planning.Thus the submission canvassed on behalf of the appellants is that although the landowner never objected to the reservation either for a garden or a primary school during the process of the revision of the D.P. Plan during 1982 to 1987, and although he had received the compensation for its acquisition, he retained the right to develop the property for residential purposes merely because under the erstwhile Town Planning scheme residential use was permissible, and it is supposed to be saved under Section 165 (2) of the MRTP Act. However, as seen from the conjoint reading of Section 39, 42 and 46, and the scheme of theAct, such a submission cannot be accepted. That apart, ultimately it was contended on his behalf the deletion of the reservation of a primary school on this plot u/s 37 of the MRTP Act is not necessary, and the order passed by the State Government in his favour can be explained u/s 50 of the MRTP Act read with D.C. Rule 6.6.2.2. As we have seen Section 50 as well as D.C. Rule 6.6.2.2. have no application to the present case, nor can the power of the State Government under Section 154 of the Act help the appellants. Besides, independent of ones right either under the D.P. Plan or the T.P. Scheme, one ought to have a permission for development granted by the planning authority traceable to an appropriate provision of law. In the present case there is none. The appellants are essentially raising all these submissions to justify a construction which is without a valid and legal development permission. The appellants have gone on improving and tried to change their stand from time to time with a view to justify Governments order in their favour. However,are not like old wine becoming better as they growas aptly stated by Krishna Iyer J. in para 8 of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi reported in 1978 (1) SCC 405. The submissions of the appellants in defence of the decision of the State Government are devoid of any merit and deserve to be rejected.That apart, there is also the question as to whether the Civil Court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the L.A. Act provides for the entire mechanism as to how acquisition is to be effected, and the remedies to the aggrieved parties. In State of Bihar Vs. Dhirendra Kumar & Ors. reported in 1995 (4) SCC 229  this Court in terms held that since the Act is a complete code, by necessary implication the power of the Civil Court to take cognizance of a case under Section 9 of the CPC stands excluded, and Civil Court had no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable in the present case.The building constructed for the tenants is meant for accommodating them, and it has been stated on behalf of the developer that he is not interested in dis-housing them. The learned senior counsel for PMC Shri R.P. Bhat has also stated on instructions, that PMC has no objection to the retention of the building constructed for the erstwhile occupants of the plot, however these occupants will now have to continue in that building as tenants of PMC. As far as these occupants are concerned, their status at the highest was that of tenants of the landowner. They claim to have been residing on this plot for over fifty years, and appear to be belonging to economically weaker section of the society. Their only request during the acquisition proceedings was that they should be accommodated on this very plot of land. It is another matter that in the High Court and in this Court they supported the landowner and the developer, in view of the promise given to them that in the event the landowner and the developer succeed, the tenants will get ownership rights. Now that the plea of the landowner and the developer is rejected, the best that can happen to these occupants is to get the tenancy rights on this very plot of land. That apart, in view of their long stay on this plot, they had to be rehabilitated. The offer of PMC to accommodate them on the very plot of land is more than fair, and deserves acceptance. Since, the tenants were already in possession of a part of the plot for residential purpose, they are being continued to remain on that plot for that very purpose. In that event, the tenants may not be entitled to receive any monetary compensation since this offer is as per their original demand and it very much compensates them. However, since the amount of compensation awarded to them was too meagre, if they have collected it, they need not return the same to PMC. This being the position, in our view, the main operative order passed by the High Court needs to be modified appropriately. In the circumstances, we modify and restrict the operative order of demolition only to the extent it directs the removal / demolition of the building meant for the persons other than these tenants (i.e. the ten storey building named as Sundew Apartments).114. We may as well mention at this stage that as far as this building viz. Sundew Apartments is concerned, no one, except a bank had come forward to claim any third party rights, or prejudice on account of the order of demolition passed by the High Court in spite of the well publicised litigation of this matter. The concerned bank had advanced a loan to the developer against the security of two flats in that building, and it intervened only at the last stage of passing of the order. The Division Bench has rightly rejected the claim of the bank in paragraphs 224 to 226 of its judgment by observing that the court could not accept the contention of the bank that it was not aware of the illegality on the part of the developer. The court did not accept the banks plea of innocently advancing the money, since the mortgage was executed on 13.8.1998, whereas the allegations concerning the illegality of this transaction had appeared in the newspapers right from March 1998. The bank should have considered the matter in depth before advancing the loan. In any case the demolition will only extinguish its security though its claim against the developer may remain. Adverse remarks, and the direction for criminal investigation115. The second part of the operative order in the impugned judgment was based on the adverse inferences drawn by the Division Bench against the then Chief Minister, the Minister of State and the Municipal Commissioner. The petitioners had infact sought a prosecution against all of them. However, after considering the facts and circumstances of the case the court was not inclined to grant that relief, without appropriate prior investigation.As far as the Chief Minister is concerned, however, it is very clear that he was fully aware about the application made by Shri Karandikar who was a camouflage for his son-in-law. He had called for the file after the Municipal Commissioner sent his report in April, 1996. But for his personal interest, the Government and the Municipal officers would not have taken the stand and put up the notes that he wanted to be on record. The shifting of the reservation from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by-passing of the Municipal Corporation and ignoring the mandate of Section 37 was also not expected, yet he gaveto a contrary and totally unjustified order. The earlier part of his order viz.action be taken in accordance withtherefore becomes meaningless, and is nothing but a camouflage. The conduct on the part of the then Chief Minister prima-facie amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for the original petitioners submits that such a conduct ought to be sternly dealt with.