SHRI GIRISH VYAS & ANR. . v. THE STATE OF MAHARASHTRA & ORS.

41Copy pinpoint41. On receiving the developer's letter dated 15.7.1998, the Commissioner once again wrote to Under Secretary UDO on 23. 7.1998 suggesting acceptance of the two proposals of G 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 UDO dated 24.7.1998 that the application of Rule 13.5 in the matter under question was not legal. As the note states:- H

834 SUPREME COURT REPORTS [2011] 12 S.C.R.

A "....... With due respect to the persons then, doing interpretation of the said decision of the Government and Rule No. 13. 5, I feel that application of Rule No. 13. 5 in the matter .under question is not legal. Upon plain reading of the said rule it is clear that this rule can be applied B when the reservation is to be shifted within a distance of 200 mfrs. Government or the Commissioner do not appear to be empowered for such shifting beyond the distance of 200 mtrs. It would have been much appropriate that the action for change as contemplated c in Sec. 37 of the Maharashtra Regional and Town Planning Act, 1966 would have been taken ...... "

42Copy pinpoint42. In view of Commissioner's letter dated 23. 7.1998 however, once again a departmental note was prepared containing following opinion, still seeking to resort to Rule 13.5. D " ...... After considering this issue the following opinion is being expressed on the proposal of Pune Municipal Corporation.

(1) Commissioner; Pune Municipal Corporation to take E action to cancel the action earlier taken of shifting reservation at Lohegaon as per Rule No. 13.5 and the action of shifting the said part reservation to Mundhawa be initiated afresh under Rule 13.5.

F (2) Prior to taking action as stated in (1) above, even though it is stated by the Commissioner that the land at Mundhwa admeasuring 3000 sq. mtrs., suggested by the Promoter is suitable, still however, it is necessary that the Commissioner , Pune Municipal Corporation should get himself satisfied about the 12 mtr. wide approach being available to the said land. After satisfying itself the legal action for taking the said Mundhwa land in possession of the Pune Municipal Corporation be completed. After completing these actions only, it is necessary to take action as stipulated in (1) above.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 835 & ORS. [H.L. GOKHALE, J.]

(3) As per the earlier instructions, the Pune Municipal A Corporation got executed agreement for construction of 500 sq.mtrs. Since the action with respect to Lohegaon land had remained incomplete, the Municipal Corporation could not grant permission to construct school therein. This construction could have been got done on Mundhwa land. B However, from the letter of the Commissioner, Pune Municipal Corporation it is seen that he has not yet decided as to whether the school is to be constructed on the said land or not. On the other hand he has asserted that since the. Promoter is ready to pay such amount of c construction no loss would be caused to Municipal Corporation by getting deposited such amount. Considering this issue, principally there appears to be no objection on the part of the Commissioner in accepting the proposal of promoter as recommended by him with a view 0 to get available the necessary amenity for the school as per their requirements. However, it would be binding upon the Commissioner to spend the said amount for the construction at such place which may be fo.und necessary and as may be recommended by the Education E Committee.

(4) Since the actions to be taken as stipulated in point No. (3) above, are between the Pune Municipal Corporation Education Committee and Commissioner, Pune Municipal Corporation, there is no reason to suspend the action of granting completion certification to the Promoter therefore. Therefore, the Government shall have no objection if the completion certificate is granted by Municipal Corporation to the Promoter after completing the actions as stipulated in para No. 1 and 2 subject to the rules and provisions in that behalf.

If the aforesaid issues are approved, the proposal of the Commissioner in the present circumstances being FOR superior purpose than these contained in the earlier H

836 SUPREME COURT REPORTS [2011] 12 S.C.R.

A directives of the Government there should be no reason to object the proposal submitted by the Commissioner and the same ought to be principally approval subject however, to the conditions mentioned in the aforesaid discussion. In accordance hereof the draft or letter to be sent to Pune B Municipal Corporation is put up at Page No. /PV.

The above proposal will be issued on the same being approved.

Submitted for orders. c Sd/- 27.7.98 (Vidyadhar Deshpande) Dy. Secretary. Sd/-27. 7.1998" D

43Copy pinpoint43. Below this note however, the Additional Chief Secretary to the Chief Minister put up a remark as follows and signed below it:-

"In this matter the developer and Hon. Chief E Minister being related, it is requested that the Hon. Minister of State should take proper decision as per rules".

Thereafter there is the order of the Minister of State which F is as follows:-

'Proposal of Department approved. Orders be issued':- "Sd/- 28.7.98 G N.V.V."

44Copy pinpoint44. The Deputy Secretary thereafter sent a reply dated

29. 7.1998 to the letters of the Municipal Commissioner dated 28.5.1998 and 23. 7.1998. In para 1 thereof he referred to the Commissioner's letter dated 28.5.1998 seeking to shift H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 837 & ORS. [H.L. GOKHALE, J.] reservation on F.P. No. 11.0 under DC Rule 13.5 to Mundhawa A instead of Lohegaon. Thereafter he stated in f)ara 2 as follows:-

"......... Now the Developer has shown his readiness to make available land at Mundhawa. Therefore, in your leMer you have sought approval to recover the proper 8 amount required for the construction of 500 sq.mtrs, after taking action sf'ated in preceding paragraph. Upon due consideration of your request, I have orders to inform you that after recovering such proper amount from the Developer, the said amount be utilized for construction of C primary school at such place as may be required and recommended by the Education Committee of Pune Municipal Corporation. Because of this order request made by you in your letter dt. 28.5.98 automatically becomes redundant. D In your letter dt. 23rd July 98 you have sought guidance on the issue of grant of occupancy certificate to the Developer. After taking the action as stated in paragraph 1 and 2, there is no reason for the Government to have objection if in furtherance thereof the Pune E Municipal Corporation issues the occupancy certificate subject to the other provisions of the Rules in that behalf."

45Copy pinpoint45. In view of the directions dated 3.9.1996 issued by the State Government, the PMC issued (i) Commencement Certificate (C.C. for short) in the name of the landowner dated F 28.11.1996 for constructing a buHding to rehabilitate the tenants, (ii) the second C.C. dated 3.5.1997 for constructing the other residential buildings consisting of ground plus ten floors (named as Sundew Apartment by the developer), ·and (iii) the Occupation Certificate (O.C. for short) in part dated G 20.12.1997 for the tenants' building. Thereafter, the developer signed a confirming agreement with the landowner and his family members on 16.1.1998 to once again confirm the terms of the earlier referred development agreement entered into between the developer and landowner on 20.10.1995. It is at H

838 SUPREME COURT REPORTS [2011] 12 S.C.R.

A this stage, that two petitions bearing no. 4433/1998 and 4434/ 1998 were filed on 12.8.1998 and 14.8.1998 respectively. A Division Bench first issued Rule Nisi without any interim order. In as much as the construction had started from March 1997 and was substantially completed, only a direction was given in B Writ Petition No.4434/1998 not to create any third party interest. The PMC was already directed not to grant completion certificate in respect of the ten storey building. Subsequently, the petitions were heard finally, and the Division Bench consisting of Hon'ble Justice B.N. Srikrishna and Justice S.S c Parkar, rendered two concurrent judgments on 6th-15th March 1999, and a common order which have been challenged in the present group of appeals.

Justification of the shifting of reservation under D.C. Rule 13.5: Is it in consonance with the statute? D

46Copy pinpoint46. As we have noted, the State Government directed the PMC to shift the reservation on F.P. No. 110 under DC Rule 13.5. The question therefore comes up as to whether the action by the State is in consonance with the statutory scheme, and that apart whether such an action is permissible under DC Rule 13.5? If we look to the scheme of the Act it gives importance to the implementation of the sanctioned plan as it is and it is only in certain contingencies that the provision thereunder is permitted to be modified, and that too after following the necessary procedure made in that behalf.

Signification of the Sanctioned Plan and the provisions for the modification thereof

47Copy pinpoint47. The Planning process under the MRTP Act is quite an elaborate process. A number of town planners, architects and officers of the Planning Authority, and wherever necessary those of the State Government participate in the process. They take into consideration the requirements of the citizens and the need for the public amenities. The planners consider the difficulties presently faced by the citizens, make rough estimate of the

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 839 & ORS. [H.L. GOKHALE, J.] likely growth of the city in near future and provide for their solutions. The plan is expected to be implemented during the course of the next twenty years. After the draft Development Plan is prepared, a notice is published in the official gazette stating that the plan is prepared. Under Section 26(1) of the Act the name and place where copy thereof will be available for inspection to the public at large is notified. Copies and extracts thereof are also made available for sale. Thereafter suggestions and objections are invited. The provisions of regional plan are given due weightage under Section 27 of the Act and then the plan is finalised after following the detailed c process under Section 28 of the Act. This being the position, Chapter-Ill of the MRTP Act on Development Plans requires the sanctioned plan to be implemented as it is. There are only two methods by which modifications of the final Development Plan can be brought about. One is where the proposal is such that it will not change the character of the Development Plan, which is known as minor modification and for which ·the procedure is laid down under Section 37 of the Act. The other is where the modification is of a substantial nature which is defined under Section 22A of the Act. In that case the procedure as laid down under Section 29 is required to be followed. There is also one more analogous provision though it is slightly different i.e. the one provided under Section 50 of the Act, for deletion of the reservation where the appropriate authority (other than the planning authority) no longer requires the designated land for the particular public purpose, and seeks deletion of the reservation thereon.

48Copy pinpoint48. The Government's action to shift the reservation on F.P. No. 110 is under DC Rule 13.5 and not under Section 37 of the MRTP Act. We may therefore refer to DC Rule 13.5 and G Section 37. DC Rule 13.5 reads as follows:-

"13.5 If the land proposed to be laid out is affected . by any reservationls or public purposels authority may H

840 SUPREME COURT REPORTS [2011] 12 S.C.R.

A agree to adjust the location of such reservationls to suit the development without altering the area of such reservation. Provided however, that no such shifting of the reservationls shall be permitted.

(a) beyond 200 m. of the location in the Development B Plan.

(b) beyond the holding 9f the owner in which such reservation is located, and

c (c) unless the alternative location is at least similar to the location of the Development Plan as regards access, levels etc.

All such alterations in the reservations/alignment of roads shall be reported by the Planning Authority to Govt. D at the time of sanctioning the layout."

49Copy pinpoint49. As can be seen from the D.C. Rule 13.5, shifting of the reservation thereunder has to be without altering the size of the area under reservation. Besides it is permissible only on three conditions namely, that (1) it cannot be beyond 200 metres of the original location in the Development Plan, (2) it has to be within the holding of the owner in which the reservation is located, and (3) the alternative location ought to have a similar access and land level as the original location. Obviously the shifting of the reservation from F.P. No. 110 to a far off place could not be justified under D.C. rule 13.5.

Minor Modifications

50Copy pinpoint50. Section 37 of the MRTP Act, reads as follows:- G "37. Modification of final Development Plan ,_ (1) Where a modification of any part of or any proposal made in, a final Development plan is of such a nature that it will not chanQe the character of s11cb H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 841 & ORS, [H.L. GOKHALE, J.] Development plan, the Planning Authority may, or when so A directed by the State Government [shall, within sixty days from the date of such direction, publish a notice] in the Official Gazette [and in such other manner as may be determined by it] inviting objections and suggestions from any person with respect to the proposed modification not 8 later than One month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. C

[(1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government shall issue the notice, and thereupon the provisions of sub- section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority.] D

[(1AA) (a) Notwithstanding anything Contained in sub- sections (1), (1A) and (2), where the State Government is satisfied that in the public interest it is necessary to carry out urgently a modification of any part of, or any proposal made in, a final Development Plan of such a nature that it will not change the character of such Development Plan, the State Government may, on its own, publish a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice and shall also serve notice on all persons affected by the proposed modification and the Planning Authority. (b) The State Government shall, after the specified period, forward a copy of all such objections and suggestions to the Planning Authority for its say to the Government within a period of one month from the receipt of the copies of such objections and suggestions from the Government. H

842 SUPREME COURT REPORTS . [2011] 12 S.C.R.

A (c) The State Government shall, after giving hearing to the affected persons and the Planning Authority and after making such inquiry as it may consider necessary and consulting the Director of Town Planning, by notification in the Official Gazette, B publish the approved modifications with or without changes, and subject to such conditions as it may deem fit, or may decide not to carry out such modification. On the publication of the modification in the Official Gazette, the final Development Plan shall be deemed to have been modified c accordingly.]

[(1-B) Notwithstanding anything contained in sub-section (1 ), if the Slum Rehabilitation Authority appointed under section 3A of the Maharashtra Slum Areas (Improvement, D Clearance and Redevelopment) Act, 1971(Mah. XXV-111 of 1971) is satisfied that a modification of any part of, or any proposal made in, a final Development Plan is required to be made for implementation of the Slum Rehabilitation Scheme declared under the said Act. then, it may publish E a notice in the Official Gazette, and in such other manner as may be determined by it, inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification, and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any) to the State Government for sanction.]

(2) The State Government may, [make such inquiry. as it may consider necessary] and after consulting the Director of Town Planning by notification in the Official Gazette, sanction the modification * * * with or without such changes, and subject to such conditions as it may deem fit or refuse to accord sanction. If a modification is H.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 843 & ORS. [H.L. GOKHALE, J.] sanctioned, the final Development Plans shall be deemed A to have been modified accordingly."

51Copy pinpoint51. As seen from this Section, the minor modification under Section 37 (1) has to be such that it will not change the character of the Development Plan. The section indicates that 8 for setting the procedure under Section 37 into motion, the Planning Authority has to firstly form an opinion that the proposed modification will not change the character of the Development Plan. Such an opinion has to be formed by the Planning Authority meaning the general body of the Municipal C Corporation, since this function is not permitted to be delegated to anybody else under Section 152 of the Act. Thereafter the Planning Authority has to publish a notice in the official gazette inviting the objections and suggestions from the public with respect to the proposed modification. It is also required to give a notice to all the persons affected by the proposed D modification. Sub-section (1A) lays down that if the Planning Authority does not give the notice, the State Government is required to issue the notice as stated above. The notice to the affected persons in our case will mean notice at least to the two institutions which had applied for developing a Primary E school on this very plot of land. Thereafter they have to be heard, and the proposed modification with amendments if any, is to be submitted to the State Government for sanction. Subsequently, after making appropriate enquiries and after consulting the Director of Town Planning the State Government F may under sub-section (2) sanction the modification with or without appropriate changes, or subject to such conditions as it may deem fit or refuse to grant the sanction. ·

52Copy pinpoint52. Sub-section (1AA) of Section 37 lays down the power G of the State Government where it feels the urgency for carrying out any such modification. In that case the State Government may publish the notice in the Official Gazette, and follow the similar procedure, but subsequently it has to place the proposal before the general body of the Planning Authority for its say, H

844 SUPREME COURT REPORTS [2011] 12 S.C.R.

A and thereafter only it may sanction the modification after consulting the Director of Town Planning in a similar manner. This shows that in the event-Of a minor modification the general body of the Planning Authority has a say in the matter. The Government has to invite the objections and suggestions from s the public at large by publishing the notification in the Official Gazette, plus it has to issue a specific notice to the persons affected by the proposed modification, and last but not the least it has to consult the Director of Town Planning before arriving at its decision. In the present case nothing of the kind has been c done.

53Copy pinpoint53. 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. Modifications of a substantial nature G

54Copy pinpoint54. Where the modification is of a substantial nature, a different procedure is prescribed under Section 22A of the Act. This Section reads as follows:-

H "22A. Modifications of a substantial nature

I GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 845 & ORS. [H.L. GOKHALE, J.] '' ' In section 29 or 31, the expression "of a substantial nature" A used in relation to the modifications made·by the Planning Authority or the officer appointed by the State Government under sub-section (4) of section 21 (hereinafter referred to as "the said Officer") or the State Government, as the case may be, in the Draft Development Plan means,- 8 (a) reduction of more than fifty per cent., or increase by ten per cent. in area of reservations provided for in clauses (b) to (i) of section 22, in each planning unit or sector of a draft Development Plan, in sites admeasuring more than 0.4 hectare in the Municipal Corporation area and 'A' Class C Municipal area and 1.00 hectare in 'B' Class and 'C' Class Municipal areas;

(b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modification under section 29 or 31, as the case may be;

(c) reduction in an area of an actually existing site reserved for a public amenity except for marginal area upto two hundred square meteres required for essential public amenity or utility services;

(d) change in the proposal of allocating the use of certairi lands from one zone to any other zone provided by clause (a) of section 22 which results in increasing the area in that other zone by ten per cent. in the same planning unit or sector in a draft Development Plan prepared and published under section 26 or published with modification under section 29 or 31, as the case may be;

(e) any new reservation made in a draft Development Plan which is not earlier published under section 26, 29 or 31, as the case may be; H

· 846 SUPREME COURT REPORTS [2011] 12 S.C.R.

A (f) alternation in the Floor Space Index beyond ten per cent. of the Floor Space Index prescribed in the Development Control Regulations prepared and published under section 26 or pi..blished with modification under section 29 or 31, as the case may be.]." 8 Additional requirement of notice in local newspapers before effecting modifications of substantial nature:-

55Copy pinpoint55. The modification under Section 22A requires following of the procedure under Section 29 of the MRTP Act. It lays down C that apart from a notice in the official gazette, a notice will have to be published in the local newspapers for the information at the public at large, so that they may make their suggestions or file objections thereto if they so deem it fit. Section 29 reads as follows:- D "29. Modification made after preparing and publishing notice of draft Development plan. Where the modifications made by a Planning Authority or the said Officer in the draft Development E plan are [of a substantial nature], the Planning Authority or as the case may be, the said Officer shall publish a notice in the Official Gazette and also in the local newspapers inviting objections and suggestions from any person with respect to the proposed modifications not F later than sixty days from the date of such notice; and thereupon, the provisions of section 28 shall apply in relation to such suggestions and objections as they apply to suggestions and objections dealt with under that section." G

56Copy pinpoint56. As seen from this Section 22A, it treats modifications of six types as substantial modifications. They are as follows:-

(a) if a plot is admeasuring more than 0.4 hectare (i.e. 4000 sq. metres) in the Municipal Corporation area or an class H Municipal area a reduction of more than 50 per cent would be

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 847 & ORS. [H.L. GOKHALE, J.]

considered as a substantial modification. In B & C class A Municipal Areas such a plot has to be of one hectare.

(b) secondly, under sub-section (b) all changes which result in the aggregate to a reduction of any public amenity by more than ten per cent of the area provided in the planning unit C!re considered a substantial change.

(c) where there is an actually existing site reserved for a public amenity, except for marginal area upto two hundred square metres required for essential public amenities or utility services their reduction will be a substantial modification.

(d) shifting of the allocation of use of land from zone to zone which results in increasing the area in the other zone by ten per cent in the same planning unit will be a substantial modification. D (e) any new reservation made in a draft Development Plan which is not earlier published will be a substantial modification, and

(f) alternation in the Floor Space Index beyond ten per cent will be a substantial modification. E

Importance given to the spaces reserved for public amenities

57Copy pinpoint57. As we have noted, all such substantial modifications can be effected only after following the additional requirement laid down in Section 29 viz. a notice in the local newspapers inviting objections and suggestions within sixty days from the public at large with respect to the proposed modification. Sub- section (a) deals with reduction of more than fifty percent in area provided in clauses (b) to (i) of Section 22 which sub- sections are concerned with proposals for designation of land for public purposes such as schools, colleges, markets, and open spaces, playgrounds, transport and communications, water supply, drainage and sewerage and other public amenities. It can be seen that sub-sections (b) and (c) of section H

848 SUPREME COURT REPORTS {2011] 12 S.C.R.

A 22A give importance to retention of places reserved for public amenities. Sub-section (b) deals with a reduction of any public amenity by more than ten per cent of the area reserved in the .planning unit. Sub-section (c) deals with any reduction in an actually existing site resented for a public amenity (other than B marginal area upto 200 sq. metres requifed for..essential public amenities or utility services for q. road widening). Both are treated as substantial modifications. Section 2 (2) of the MRTP Act defines what is an "amenity". It is relevant to note that this definition of amenity includes primary and secondary schools c and colleges and polytechnics. It reads as follows:-

"2 [(2}. "amenity" means roads, streets, open spaces, parks recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and D polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences]."

58Copy pinpoint58. In the present case we have a situation where the reservation for a Primary school on a plot of an area of 3450 sq. metres is deleted. Would it not amount to a substantial modification under sub-section (b) of Section 22A since it results into deletion of a public amenity in the entire planning unit? Would it not mean that in view thereof it was necessary to follow the procedure required under Section 29 of the Act which provides for a public notice in the Official Gazettee and also in the local newspapers inviting objections and suggestions? Would it not mean that thereafter it was necessary to follow the procedure to deal with the suggestions and objections laid down while finalizing the draft Development Plan under Section 28 of the Act? Whether the shifting of this reservation is covered under Section 37 or Section 22A is a moot point to consider. One thing is however very clear, that it could not be justified under D.C. Rule 13.5. If the statute

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 849 & ORS. [H.L. GOKHALE, J.] provides for doing a particular act in a specified manner, it has got to be done in that manner alone, and not in any other manner.

Alleged Conflict between D.P. Plan and the erstwhile T.P. Scheme canvassed for the first time in the High B Court -

Can a provision in the erstwhile T.P. Scheme be relied upon in the face of a contrary reservation in the subsequent D.P. Plan? c

59Copy pinpoint59. In as much as the action of the State Government could not be defended under D.C. Rule 13.5, the appellants came up with the submission for the first time in the High Court and then in this Court that under the erstwhile Town Planning Scheme, this F.P. No. 110 could be developed for residential purposes, and that purpose subsisted in spite of the subsequent reservation for a public purpose on that plot of land under the D.P. Plan.

60Copy pinpoint60. It was pointed out that a Town Planning Scheme was framed under the then Bombay Town Planning Act of. 1915 for Pune City to become effective from 1.3.1931. Regulation 14 of the Principal scheme framed under that Act provided for the areas included in the scheme which were intended mainly for residential purposes wherein this plot was included as original plot No. 230/C. It was subsequently allotted F. P. No. 110. There F was no reservation on this plot for any public purpose. The 1915 Act was repealed and replaced by the Bombay Town Planning Act 1957 w.e.f. 1.4.1957 whereunder the concept of a Development Plan was introduced. However, by virtue of Section 90 of the 1954 Act the previous schemes were saved. G The erstWhile Town Planning scheme as varied, was sanctioned by the State Government w.e.f. 15. B.1979, and thereunder the permissible user of F.P. No. 110 continued to be residential. In the meanwhile, in exercise of its power under the 1954 Act, the State Government sanctioned the Development Plan of H

850 SUPREME COURT REPORTS [2011] 12 S.C.R.

A Pune City w.e.f. 15.8.1966 whereunder F.P. No. 110-112 were reserved for a garden. The 1954 Act was repealed and replaced by the MRTP Act 1966 w.e.f. 11.1.1967. By virtue of Section 165 of the MRTP Act, however, the erstwhile Principal T.P. scheme (as varied), as well as the D.P. Plan were both B saved. Subsequently, when the D.P. Plan of Pune City was revised in 1982 and finalized in 1987 under the provisions of the MRTP Act, the reservation on the plot was initially proposed to be changed for a play-ground, but ultimately shifted for a primary school in the final 1987 DP Plan. c

61Copy pinpoint61. It is contended on behalf of the landowner and the developer that the permission for the user of the concerned plot of land for residential purposes under the T.P. Scheme effective from 15.8.1979 continued to survive by virtue of the saving clause under Section 165(2) of the MRTP Act, and,. therefore, the order passed by the Government on 3.9.1996 as well as the commencement certificates were valid even on that count. It is submitted that until the Town Planning scheme is varied under Section 39 read with 92 of MRTP Act, the proposals in the Final Development Plan of 1987 cannot have any effect on the land covered by the erstwhile Town Planning scheme. The Development Plan and Town Planning scheme will both have their independent operation until the Town Planning scheme is varied to bring it in accord with the Development Plan. As noted earlier that right from 8.5.1979, when the landowner issued purchase notice, and led the State Government and PMC to acquire the plot of land, this plea was never raised (and the High Court would have been within its rights not to entertain this plea on the ground of acquiescing into the change of user under the D.P. Plan). The plea having been considered and rejected in the impugned judgment, is canvassed once again in this Court. To consider this plea, it becomes necessary to examine the relevant provisions of the Act.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA· 851 & ORS. [H.L. GOKHALE, J.]

Relevant provisions of the Act in the context of the A D.P. Plan as against the erstwhile T.P. Scheme

62Copy pinpoint62. The preamble of the MRTP Act shows that this is an Act to make provisions for:

(1) planning the development and use of land in regions B established forthat purpose and for constitution of regional planning boards therefor,

(2) to make better provisions for the preparation of development plans with a view to ensuring that T.P. c Schemes are made in the propermanner and their execution is made effective,

(3) to provide for the creation of new towns by means of development authorities, D (4) to make provisions for the compulsory acquisition of land required for public purposes in respect of >·the plans, and .. (5) for purposes connected with the matters aforesaid . E

63Copy pinpoint63. (i) Chapter I of the Act contains the Preliminary provisions. Chapter II of the Act is concerning the Regional Plans. Chapter Ill is about the Development Plan, and Chapter IV about Control of Development and Use of Land included in F Development Plans. Chapter Vis about the T.P. Schemes.

(ii) Section 3 of the Act permits the State Government to establish any area in the State to be a Region. A Regional Plan is supposed to be prepared for various subjects which are mentioned in Section 14 of the Act. The G 'Development Plan' is defined under Section 2 (9) of the Act as a plan for the development or re-development of the area within the jurisdiction of a planning authority. Se-ction 2 (19) defines the Planning .Authority to mean a local authority, and it includes some other specified H

852 SUPREME COURT REPORTS [2011] 12 S.C.R.

A authorities also. There is no dispute that the development plan has to be prepared 'in accordance with the provisions of a~Regional plan' which is what is specifically stated in Section 21 (1) of the Act.

B (iii) It is, however, disputed by the developer that the T.P. scheme which is normally supposed to be a detailed scheme for a smaller part of a Municipal Area has necessarily to be in consonance with the development plan. As against this submission we have the mandate of Section 39 of the Act, which reads as follows:- c "39. Variation of town planning scheme by Development Plan.

Where a final Development plan contains proposals which are in variation, or modification of those made in a town planning scheme which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall vary such scheme suitably under section 92 to the extent necessary by the proposals made in the final Development plan."

This Section states that the T.P. scheme shall be suitably varied to the extent necessary wherever the final development plan contains proposals which are in variation or modification of the proposals contained in the T.P. Scheme. In the instant case, we are concerned with the final development plan of 1987 which contains the reservation for a Primary School on F.P. No.110 as against the plot being placed in a residential zone in the final T.P. scheme of 1979. It is submitted by the appellant that the planning authority may take steps to vary the G T.P. scheme suitably to bring it in consonance with the D.P plan, but until that is done, the provisions in the T.P. scheme will survive. The High Court has rejected this submission by holding that the D.P. plan overrides the T.P. Scheme.

64Copy pinpoint64. As noted above, Section 39 lays down that the T.P.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 853 & ORS. [H.L. GOKHALE, J.]

Scheme is to be varied suitably in accordance with the D.P. A Plan under Section 92 of the Act. Section 92 appears in Chapter V which is on Town Planning schemes. The first section in this chapter V is Section 59. Section 59 reads as follows:-

"59. Preparation and contents of Town Planning Scheme B

(1) Subject to the provisions of this Act or any other law for the time being in force-

(a) a Planning Authority may for the purpose of implementing the proposals in the final Development Plan, C prepare one or more town planning schemes for the area within its jurisdiction, or any part thereof;

(b) a town planning scheme may make provision for any of the following matters, that is to say- D (i) any of the matters specified in section 22;

(ii) the laying out or re-laying out of land, either vacant or already built upon, including areas of comprehensive development; E (iii) the suspension, as far as may be necessary for the proper carrying out of the scheme, of any rule, by-law, regulation, notification or order made or issued under any law for the time being in force F which the Legislature of the State is competent to make;

(iv) such other matter not inconsistent with the object of this Act, as may be directed by the State Government. (2) In making provisions in a draft town planning scheme for any of the matter referred to in clause (b) of sub-section (1), it shall be lawful for a Planning Authority with the approval of the Director of Town Planning and H

854 SUPREME COURT REPORTS [2011) 12 S.C.R.

A subject to the provisions-of section 68 to provide for suitable amendment of the Development plan."

As can be seen, Section 59 states two things: firstly the opening part of sub-section 1 of Section 59 states that the T.P. 8 scheme is to be prepared "subject to the provisions of th is Act". Thereafter, Sub-section 1(a) of this section specifically states that the planning authority is to prepare one or more T.P. schemes for the area within its jurisdiction "for the purpose of implementing the proposals in the final Development Plan". C Thus, Section 39 read with Section 59 do indicate the approach of legislature, namely, superiority of the D.P. plan over the T.P. scheme.

65Copy pinpoint65. The learned senior counsel for the developer, Shri Naphade relied on the provisions contained in Section 59 (1) · D (b) (i), and 59 (2) of the Act in support of his arguments. Section 59 (1) (b) (i) provides that a town planning scheme may make provision amongst others for any of the matters specified in Section 22 of the Act. Section 22 lays down as to what ought to be the contents of a Development Plan. Section 59 (2) states that in making the draft T.P. scheme for any of the matters referred to in sub-section 1 (b), it shall be lawful for a planning authority to provide for. suitable amendments of the Development Plan. It is, therefore, submitted that there is no primacy between the Development Plan and the T.P. scheme. F It is contended that if the purpose of the T.P. Scheme is c;mly to implement the Development Plan, it will militate against the plain reading of Section 51 (2) and 59 (1) (b) and that, in such a case, Section 59 (1) (b) will become otiose. Shri Naphade, therefore, submitted that the D.P. Plan and the T.P. Scheme G both are of equal strength.

66Copy pinpoint66. While examining this submission, we must note that Section 39 requires the T.P. scheme to be varied to the extent necessary in accordance with the final Development Plan. The provision in Section 59 (1) (b) (i) is infact made to see to it that H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 855 & ORS. [H.L. GOKHALE, J.]

there is no conflict between the T.P. scheme and the A Development Plan. Otherwise, the question will arise as to what meaning will be given to Section 59 (1) (a) which specifically states that the T.P. scheme is to be prepared for the purpose of implementing the proposals in the final Development Plan. Merely because Section 59 (1) (b) provides that the T.P. B scheme may make provision for any of the matters specified in Section 22, the T.P. scheme cannot be placed on the same pedestal as a Development Plan. Section 59 (2) is only an enabling provision. It may happen that in a given situation a suitable amendment of the Development Plan may as well c become necessary while seeing to it that the T.P. scheme is in consonance with the Development Plan. Section 59 (2) will only mean that the legislature has given an elbow room to the planning authority to amend the Development Plan if that is so necessary, so that there is no conflict between the T.P. Scheme D and the D.P. Plan. In fact what is indicated by stating that "it shall be lawful to carry out, such an amendment" is that normally such a reverse action is not expected, but in a given case if it becomes so necessary, it will not be unlawful. Use of this phrase in fact shows the superiority of the D.P. Plan over the T.P. E scheme. Besides, the phrase put into service in this sub- section is only 'to provide for a suitable amendment'. This enabling provision for an appropriate amendment in the D.P. plan cannot therefore, be raised to the level of the provision contained in Section 39 which mandates that the planning authority shall vary the T.P. scheme if the final D.P. Plan is in variation with the T.P. Scheme sanctioned before the commencement of the MRTP Act. It also indicates that subsequent to the commencement of the Act, a T.P. Scheme will have to be inconsonance with the D.P. Plan. Similarly, Section 59 (1) (b) (i) cannot take away the force of the provision contained in Section 59 (1) (a) of the Act. As noted above, Section 39 specifically directs that the planning authority shall vary the T.P. scheme to the extent necessary by the proposal made in the final Development Plan, and Section 59 (1) (a) gives the purpose of the T.P. scheme, viz. that it is for H

856 SUPREME COURT REPORTS (2011] 12 S.C.R.

A implementing the proposals contained in the final Development Plan. Under Section 31 (6) of the act, a Development plan which has came into operation is binding on the plann_ing authority. The Planning Authority cannot act contrary to D.P. plan and grant Development permission to defeat the provision of 8 the D.P. plan. Besides, it cannot be ignored that a duty is cast on every planning authority specifically under Section 42 of the Act to take steps as may be necessary to carry out the provisions of the plan referred in Chapter Ill of the Act, namely the Development Plan. Section 46 of the Act also lays down c specifically that the planning authority in considering an application for permission for development shall have "due regard" to the provisions of any draft or any final plan or proposal submitted or sanctioned under the Act. It indicates that the moment a Draft Plan is proposed, a permission for a D contrary development can no more be granted, since it will lead to a situation of conflict. Section 52 of the Act in fact provides for penalty for unauthorised development or for use otherwise then in conformity with the development plan. Thus, when it comes to the development in the area of a local authority, a E conjoint reading of the relevant sections makes the primacy of the Development Plan sufficiently clear.

67Copy pinpoint67. Much emphasis was laid on Section 69 (6) which reads as follows:-

F "(6) The provisions of Chapter IV shall, mutatis mutandis, apply in relation to the development and use of land included in a town planning scheme in so far as they are not inconsistent with the provisions of the Chapter." G It was, therefore, submitted that thus the provisions of Chapter IV which are about the Control of Development and use of land included in the Development Plan, are mutatis mutandis applicable to the development and the use of land included in the T.P. scheme, and therefore the D.P. plan and H T.P. scheme are on par.

GIRISH VYAS &. ANR. v. STATE OF MAHARASHTRA 857 & ORS. [H.L. GOKHALE, J.]

68Copy pinpoint68. Now, it is material to note that sub-sections (1) to (5) A of Section 69 operate when the draft T.P. scheme is under preparation. Sub-section (6) will have to be read on that background because this sub-section itself states that provisions of Chapter IV will apply in relation to the development of the land included in a T.P. scheme "in so far as it is not B inconsistent with the provision of this Chapter", i.e. Chapter V on Town Planning Schemes wherein Section 69 is placed. Chapter IV is on control of Development and use of land included in Development Plans. And as noted above, Section 59 (1) (a) which is the first section of Chapter V clearly contains c the direction that the T.P. scheme is to be prepared for the purpose of implementing the proposals in the final Development Plan. Therefore, merely because by incorporating the provisions of Chapter. IV those provisions are made applicable to T.P. schemes, the mandate of Section 59 (1) (a) D cannot be lostsight of.

69Copy pinpoint69. It is then submitted by the appellant that the Development Plan and the T.P. scheme operate independent of each other, and, until the State Government exercises its power of eminent domain under the Development Plan, and acquire the land, the landowner can develop his property as per the user permitted under the T.P. scheme. In view of the scheme of the relevant sections and particularly Section 46 which we have noted above, this submission cannot be accepted. It will mean permitting a development contrary to the provisions of the Development Plan, knowing fully well that the user under the T.P. scheme is at variance with the Development Plan. Any such interpretation will make provisions of Section 39, 42, 46 and 52 meaningless. G

70Copy pinpoint70. There is one more aspect of the matter. Section 43 of the Act lays down that after the date on which the declaration of intention to prepare a Development Plan is published, no · person shall carry out any development on land without the H

858 SUPREME COURT REPORTS [2011] 12 S.C.R.

A permission of the Planning Authority. The principal part of this section reads as follows:-

"43. Restrictions on development of land

After the date on which the declaration of intention B to prepare a Development plan for any area is published in the Official Gazette [or after the date on which a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town, is published in Official Gazette] no person shall institute or c change the use of any land or carry out any development of land without the permission in writing of the Planning Authority."

71Copy pinpoint71. This section will have to be read along with the D requirement provided in Section 39. Section 39 provides for a T.P. Scheme sanctioned and subsisting prior to the Development Plan. The section mandates that such a prior scheme shall be varied to the extent necessary by the proposals made-in the final Development Plan. Section -43 E provides that once the declaration of intention to prepare a Development Plan is gazetted, no development contrary thereto can be permitted. As provided under Section 59 (1) (a), the town planning scheme is to be prepared for the purpose of implementing the proposals in the final Development Plan. Therefore, even if such a variation as directed under Section F 39 does not take place, the land cannot be put to use in any way in contradiction with the provision in the D.P. Plan. In the instant case, we have a provision of the T.P. Scheme effective from 15.8.1979 as against the D.P. Plan containing a contrary provision which was notified on 18.9.1982. Shri Dholakia, G learned senior counsel appearing for the State Government, therefore, rightly submitted that in view of Section 165 of the MRTP Act, if the construction was completed, partly started or plans were submitted, or any such appropriate steps were taken prior to 18.9.1982, the same could have been permitted. Once H the State Government published the draft Development Plan on

-- GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 859 & ORS. [H.L. GOKHALE, J.]

18.9.1982, providing for the reservation for a primary school, A any construction contrary thereto could not be permitted. This can only be the interpretation of the provisions contained in Section 39 read with Section 43 and Section 165 of the MRTP Act. For convenience, we may refer to Section 165 (1) and (2), · which read as follows:- B

"165. Repeal and saving. ·

(1) The Bombay Town Planning Act, 1954 and sections 219 to 226A and clause (xxxvi) of sub-section (2) of section 274 of the Maharashtra Zilla Parishads and C Panchayat Samitis Act, 1961, are hereby repealed.

(2) Notwithstanding the repeal of the provisions aforesaid, anything done or any action taken (including any declaration of intention to make a development plan or town planning scheme, any draft development plan or scheme published by a local authority, any application made to the State Government for the sanction of the draft development plan or scheme, any sanction given by the State Government to the draft development plan or scheme or any part thereof, any restriction imposed on any person against carrying out any development work in any building or in or over any land or upon an owner of land or building against the erection or re-erection of any building or works, any commencement certificate granted, any order or suspension of rule, bye-law, regulation, notification or order made, any purchase notice served on a local authority and the interest of the owner compulsorily acquired or deemed to be acquired by it in pursuance of such purchase notice, . any revision of development plan, any appointment made of Town Planning Officer, any proceeding pending before, and decisions of, a Town Planning Officer, any decisions of Board of Appeal, any final scheme forwarded to, or sanctioned, varied or withdrawn by the State Government, any delivery of possession enforced, any eviction H

860 SUPREME COURT REPORTS [2011] 12 S.C.R.

A summarily made, any notice served, any action taken to enforce a scheme, any costs of scheme calculated and any payments made to local authorities by owners of plots included in a scheme, any recoveries made or to be made or compensation awarded or to be awarded in respect of B any plot, any rules or regulations made under the repealed provisions shall be deemed to have been done or taken under the corresponding provisions of this Act, and the provisions of this Act shall have effect in relation thereto."

72Copy pinpoint72. The learned senior counsel Shri Virendra Tulzapurkar C appearing for the tenants went to the extent of contending that by provisions in the T.P. Scheme are superior to those in the D.P. Plan. In support to his submission he relied upon the judgment of a Division Bench of Gujarat High Court in Gordhanbhai Vs. The Anand Municipality & Ors. reported in D XVI (1975) Gujarat Law Report 558 which was under the Bombay Town Planning Act 1954 (the 1954 Act for short) as applicable to Gujarat. The petitioner therein was aggrieved by the development permission granted by the Anand Municipality to the respondents Nos. 4 to 12 to put up a structure on the E plot adjoining to his plot. One of the objections raised by the petitioner was that the disputed construction did not observe the margins prescribed in the regulations framed under the Development Plan (comparable to the D.C. regulations in the present case). The respondents pointed out that the regulations F . which were published and sanctioned by the State Government as a part of the T.P. scheme specifically provided that no margin should be imposed on the particular final plot of the respondents Nos. 4 to 12. In view thereof, the Division Bench in para 6 of its judgment referred to Section 18 (2) (k) of the G 1954 Act which specifically provided that the Town Planning scheme may provide for the suspension, so far as may be necessary for the proper carrying out of the scheme of any rule, by-law, regulation, notification or order made or issued under any Act of the State Legislature. Since that had been done, the H P!=!rmission for construction in the particular case could not be

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 861 & ORS. [H.L. GOKHALE, J.]

faulled. It was in this context that the Division Bench observed A that the provisions of the scheme which are contrary to those regulations shall prevail over the same. It is material to note that this provision in Section 18 (2) (k) of the 1954 Act is pari- materia to Section 59 (1) (b) (iii) of the MRTP Act. It is also material to note that like Section 59 (1) (a) of the MRTP Act, B Section 18 (1) of the 1954 Act provides as follows:-

"Making and contents of town planning scheme

18. Subject to the provisions of this Act or any other law for the time being in force:- C (1) a local authority for the purpose of implementing the proposals in the final development plan may make one or more town planning schemes for the area within its D jurisdiction or any part thereof;" Section 18 of the 1954 Act as well as Section 59 of the MRTP Act provide for suspension of the regulations in a· given case by making a specific provision in the T.P. scheme, which is basically with the object of implementing the proposals jn the E Final Development Plan. This judgment cannot therefore be relied upon to canvass a general proposition that the provisions in the Town Planning scheme are superior to the Development Plan. F The need for a holistic interpretation

73Copy pinpoint73. The provision of a statute are required to be read together after noting the purpose of the Act, namely that there should be an orderly development in the region, local authority as well as in the town area. The MRTP Act does not envisage G a situation of conflict. Therefore one will have to iron out the edges to read those provisions of the Act which are slightly incongruous, so that all of them are read in consonance with the object of the Act, which is to bring about an orderly and planned development. The provision of Section 165 can not be H

862 SUPREME COURT REPORTS [2011) 12 S.C.R.

A read to mean a right to carry out a development contrary to the Development Plan, and in any case without a valid development permission particularly when the landowner had not taken any step in pursuance to the erstwhile T.P. scheme nor had objected to the changes brought in by the authorities by B following the due process of law. The submissions of Shri Naphade and Tulzapurkar with respect to the alleged conflict between T.P. and D.P. can not, therefore, be accepted.

74Copy pinpoint74. The observations of 0. Chinnappa Reddy J. in para C 33 of the Judgment in Reserve Bank of India Vs. Peerless = Corpn. reported in [AIR 1987 SC 1023 1987 (1) SCC 424) are instructive in this behalf -

"33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statut~ is best interpreted when we know why it was enacted. ·with this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute- m a ke r, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must. look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."..... . H (emphasis supplied)

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 863 & ORS. [H.L. GOKHALE, J.]

75Copy pinpoint75. The counsel for the landowner criticised the impugned judgment for accepting the observations of another Division Bench of Bombay High Court in Rusy Kapadia v. State of Maharashtra reported in [1998 (2) ALL MR 181], In that matter certain private land was reserved in the D.P. plan of Pune for a public park. The landowner had no objection to the same, but the land was not acquired. The landowner sold the land to some other persons, who moved the Government for de-reservation of the land to use it for residential purpose. The Government invited objections under Section 37 of the MRTP Act and thereafter issued the notification granting de-reservation. At that c stage some ·other citizens filed this PIL challenging that notification on the ground that the land was ear-marked for environmental purposes and should not be de-reserved. It was submitted in that matter on behalf of the purchasers of the land that in the T.P. scheme the use for residential purpose was 0 permissible, and since the T.P. scheme was sanctioned subsequ"ent to the development plan, it shall prevail. Rejecting that argument, the Division Bench observed in para 8 of its judgment as follows:- "...... We heard and also perused the provisions with·the E assistance of the Ld. Counsel for the parties. Town Planning Scheme is provided and dealt with by Chapter V of the Act. This Chapter has beginning with Section 59 and opening of the section itself refers that the provisions of this Chapter are subject to the provisions of the Act. The F provisions precedent to section 59 are from section 1 to section 58 which include section 31, sub-section (6) which proclaims that the Draft Plan is final and binding on the Planning Authority. As such the binding force would carry even when they anyway deal with the Town Planning G Scheme. Besides this section 39 and section 42 of the Act unequivocally indicate that the Development Plan has to definitely prevail over anything and everything including the Town Planning Scheme. In view of this the submission is without any merit." H

864 SUPREME COURT REPORTS [2011] 12 S.C.R.

76Copy pinpoint76. The Division Bench deciding Rusy Kapadia's case (supra) referred to para 25 of the Judgment of this Court in Bangalore Medical Trust Vs. 8.S. Muddapa reported in [1991 (4) sec 54] to emphasize the importance of protecting environment. The High Court quashed the decision of the B Government granting de-reservation but kept it in abeyance for a period of two years, and directed that if during this period the private respondents (i.e . .purchasers of the land) provided adequate green area as envisaged in the development plan, this order will not operate. This order of the High Court in Rusy c Kapadia (supra) was challenged by those private respondents, the judgment in which Appeal is reported in the case of Raju S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222]. This Court in the case of Raju Jethmalani noted that the observations in Bangalore Medical Trust were in the context of Section 38 (A) of that Act. The Court also noted that though the development plan provided the area for the.garden, no proceedings for acquisition of the concerned plot had ever been initiated. In that context, the court observed that there is no prohibition for preparing the development plan comprising the private land, but the plan cannot be implemented unless the said private land was acquired. It was for this reason that the court allowed the appeal and set aside the order in Rusy Kapadia's case, but this time directed the petitioners of the PIL (i.e. Rusy Kapadia & Ors.) to raise funds in six months if they wanted the park to be maintained, in order to assist the F Government to acquire the land, failing which it will be open to the appellants to develop the land. This direction was given because the State Government and PMC had expressed inability to raise the necessary funds to acquire the concerned plot of land. It is material to note that in Raju Jethmalani's case this Court did not deal with the controversy concerning the superiority of the Development Plan vis-a-vis the T.P. scheme, nor can the Judgment be read as laying down a proposition that development contrary to the D.P. plan is permissible. The observations in the case of Rusy Kapadia as quoted above are approved in the presently impugned judgment, and have

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 865 & ORS. [H.L. GOKHALE, J.] been once again reiterated by another Division Bench of the A Bombay High Court in lndirabai Bha/chandra Bhajekar Vs. The Pune Municipal Corporation and Ors., reported in [2009 ( 111) Born LR 4251]. Having noted the inter-relation amongst the various sections of the statute, in our view; it cannot be said that the T.P. scheme is either superior or of equal strength as the Development Plan.

77Copy pinpoint77. The counsel for the developer then relied upon the judgment of this Court in Laxmi Narayan Bhattad Vs. State of Maharashtra reported in [2003 (5) SCC 413] for further supporting the submission in this behalf. The appellant in this case was allotted an alternative plot of land and monetary compensation under an award when part of his land was · acquired to implement the T.P. scheme finalized in 1987. The appellant however wanted additionally the Transferable Development Rights (TOR) as provided under Development D Control Regulations framed later in 1991. This Court declined to accept the submission of the appellant. It was held that the appella_nt will be eligible only for the benefits un.der the T.P. scheme, since the acquisition of his land was to implement the same. The D.C. Regulations of 1991 had come subsequently. E ·There was no provision for TDR under the T.P. scheme and therefore, the appellant could not get T.D.R which are provided subsequently in the D.C. Regulations of 1991. This judgment also cannot be read as laying down that the T.P. scheme will prevail over or is of equal strength as-the D.P. plan. F

78Copy pinpoint78. Thus from the analysis of the relevant provisions and the judgments it is clear that the right claimed under the erstwhile T.P. scheme could not be sustained in the teeth of the reservation for a Primary school under the 1987 D.P. plan. The G submission in this behalf cannot be accepted.

Additional submissions in this Court in defence of the Government Order:-

79Copy pinpoint79. The appellants came up with some more submissions H

866 SUPREME COURT REPORTS [2011) 12 S.C.R.

A in this Court. They submitted that the shifting was protected under Rule 6.6.2.2, and the reference to Rule 13.5 in the Government's order dated 3.9.1996 was erroneous. Now, this Rule 6.6.2.2 reads as follows:-

"6.6.2.2 In specific cases where a clearly B demonstrable hardship is caused the Commissioner may by special written permission

(i) Permit any of the dimensions/provisions prescribed by these rules to be modified provided the c relaxation sought does not violate the health safety, fire safety, structural safety and public safety of the inhabitants, the buildings and the neighborhood. However, no relaxation from the set back required from the road boundary or FSI shall be granted under any circumstances. D While granting permissions under (i) conditions may be imposed on size, cost or duration of the structure abrogation of claim of compensation payment of deposit and its forfeiture for non-compliance and payment of premium." E As can be seen from this Rule it provides for variations . with respect to dimensions and structural requirements. This rule 6.6.2.2 is a part of Rule 6 which contains the 'Procedure for obtaining building permission/ commencement certificates'. F It does not deal with shifting of a particular reservation from one plot to another which is covered under Rule 13.5 (with certain restrictions) to which we have already referred. Thus Rule 6.6.2.2 has no application at all.

80Copy pinpoint80. The request of the landowner was to shift the reservation of a primary school from F.P. No. 110, and to grant him the permission for development under Section 45 of the Act. It is also material to note that though subsequent to the Government orders, Commencement Certificates were issued, H there was no order specifically setting aside the earlier order

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 867 & ORS. [H.L. GOKHALE, J.] of the City Engineer of PMC passed under Section 45 of the A MRTP Act rejecting the building permission by his letter/order dated 6.11.1995. We are, therefore, required to infer from the Commencement Certificate which refers to Section 44 and 45 (alongwith other sections) that the appeal against the order of the City Engineer is impliedly allowed under Section 47 of the B Act. This is because there is no such specific mention of reversal of the order dated 6.11.1995 even in the aforesaid order of the State Government dated 3.9.1996.

81Copy pinpoint81. It was therefore contended on behalf of the developer that the order passed by the Government made a reference to C a wrong provision of law. It was submitted that Section 47 was erroneously relied upon, and the order was in fact an order passed under Section 50 of the Act.

Section 50 reads as follows:- D

"50. Deletion of reservation of designated land for interim draft of final Development Plan.

(1) The Appropriate Authority (other than the Planning Authority), if it is satisfied that the land is not or E no longer required for the public purpose for which it is designated or reserved or allocated in the interim or the draft Development plan or plan for the area of Comprehensive development or the final Development plan, may request- F

(a) the Planning Authority to sanction the deletion of such designation or reservation or allocation from the interim or the draft Development plan or plan for the area of Comprehensive development, or G (b) the State Government to sanction the deletion of such designation or reservation or allocation from the final Development plan. (2) On receipt of such request from the Appropriate H

868 SUPREME COURT REPORTS [2011] 12 S.C.R.

• A Authority, the Planning Authority, or as the case may be, the State Government may make an order sanctioning the deletion of such designation or reservation or allocation · from the relevant plan:

B Provided that, the Planning Authority, or as the case may be, the State Government may, before making any order, make such enquiry as it may consider necessary and satisfy itself that such reservation or designation or allocation is no longer necessary in the public interest. c (3) Upon an order under sub-section (2) being made, the land shall be deemed to be released from such designation, reservation, or, as the case may be, allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land, under the relevant plan."

As can be seen, Section 50 provides for deletion of a reservation at the instance of an Appr0priate authority (other than the planning authority) for whose benefit the reservation is made. Such is not the present case. Under sub-section (1) of Section 50, the appropriate authority has to be satisfied that the land is not required for the public purpose for which it is reserved. "Appropriate authority" is defined under Section 2 (3) . of the Act to mean a public authority on whose behalf the land is designed for a public purpose in any plan or scheme and which it is authorised to acquire. In the instant case, the acquiring body is PMC, and it will mean the general body of PMC. Assuming that the section applies in the instance case, the general body has to be satisfied that the land is no longer required for the public purpose for which it is designed or reserved. In the instant case, it is on the direction of the Minister of State that the Municipal Commissioner has given a report which has been used by the State Government to pass an order of shifting the reservation from F.P. No.110. The officers of the Planning Authority as well as of the concerned Government H department were not in favour of deleting the reservation. The

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 869 & ORS. [H.L. GOKHALE, J.] Commissioner's opinion could not have been treated as the opinion of.PMC. Under certain circumstances the Municipal Commissioner can act on behalf of the Municipal Corporation, and those sections are specifically mentioned in Section 152 of the MRTP Act. Section 50 is not one of those sections and, therefore, the State Government could not have made any such order sanctioning the deletion of reservation on the basis of the report of the Municipal Commissioner. Section 50 is, therefore, of no help to the appellants.

82Copy pinpoint82. One of the sections which was pressed into service to defend the directions of the State Government dated 3.9.1996 C and 29.7.1998 and the actions of the Municipal Commission was Section 154 (1) of the MRTP Act. This section reads as follows:-

"154. Control by State Government D

(1) Every Regional Board, Planning Authority and Development Authority shall carry out such directions or instructions as may be issued from time to time by the State Government for the efficient administration of this E Act. (2) If in, or in connection with, the exercise of its powers and discharge of it functions by any Regional Board, Planning Authority or Development Authority under this Act, any dispute arises between the Regional Board, F Planning Authority or Development Authority, and the State Government, the decision of the State Government on such dispute shall be final." It was submitted that the State Government was thus G entrusted with the over-all control in the interest of efficient administration, and its directions had to be followed by the Planning Authority, and such directions could not be faulted on any count. In a similar situation in Bangalore Medical Trust {supra), a reservation for a public park was sought to be shifted H

; 70 SUPREME COURT REPORTS [2011] 12 S.C.R.

A for the benefit of a private nursing home. Amongst others Section 65 of the Bangalore Development Act, 1976 was sought to be pressed into service which authorised the Government to issue directions to carry out the purposes of the act. This Court observed in para 52 of that judgment that the s section authorises the Government to issue directions to ensure that provisions of law are obeyed and not to empower itself to proceed contrary to law. In the present matter, it is to be seen that the section provides for directions or instructions to be given by the State Government for the efficient administration c of the Act. This implies directions for that purpose which are normally general in character, and not for the benefit of any particular party as in the present case. The provisions of law cannot be disregarded and ignored merely because what was done, was being done at the instance of the State Government. Consequently, Section 154 cannot save the directions issued 0 by the State Government or the actions of the Municipal Commissioner in pursuance thereof.

83Copy pinpoint83. Thus, the reliance on these provisions is of no use to the appellants. It was submitted that while passing the order the E Government has referred to a wrong provision of law and reference to a wrong provision of law does not vitiate the order if the order can be traced to a legitimate source of power. Reliance was placed on the judgment of this Court in PR Naidu v. Government of Andhra Pradesh (reported in AIR 1977 SC F 854) = [1977 (3) SCC 160) and VL and Co. v. Bennett = Coloman and Co. [AIR 1977 SCC 1884] [1977 (1) SCC 561). In the instant case, however, the order of the Government dated 3.9.1996 cannot be traced to any legitimate source of power, and therefore, the situation cannot be remedied by reference to other sources of power. The Division Bench has therefore, rightly commented on this submission in paragraph 180 of its judgment that 'the rub is that the action taken by the Planning authority was otherwise not legal and justified'. It could not therefore be justified by reference to other provisions of law because basically the decision itself was illegal.

GIRlSH VYAS & ANR. v. STATE OF MAHARASHTRA 871 & ORS. [H.L. GOKHALE, J.]

84Copy pinpoint84. 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 the Act, 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 one's 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 F a view to justify Government's order in their favour. However, "Orders are not like old wine becoming better as they grow older" as 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 G appellants in defence of the decision of the State Government are devoid of any merit and deserve to be rejected.

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A Legality of the acquisition of the land:

Whether the acquisition lapses on account of change of purpose of acquisition

85Copy pinpoint85. As seen earlier, the letter of the landowner had led to the subsequent steps for acquisition. The landowner was interested in good return for his land. The tenants were interested only in the rehabilitation on the same plot of land. That was their stand until the award dated 12.5.1983. The Civil Court has held the acquisition for the changed purpose under the D.P Plan as bad in law on the ground that the initially designated public purpose for acquisition was changed. Was the civil suit maintainable? Was the view taken by the Civil Court a correct view? We are required to go into that question also, since the order of the Civil Court is sought to be defended by the landowner as well as by the developer.

86Copy pinpoint86. The Learned Civil Judge Senior Division set aside the award by his judgment and decree dated 23.4.1990 on the ground that though the land was initially proposed to be acquired for a garden, it was ultimately to be used for another public purpose i.e. setting up a primary school. It was contended on behalf of the developer that in the instant case the declaration under Section 6 of the L.A. Act was issued when the land was reserved for a garden, and the purpose of acquisition must subsist as initially designated until the possession of the land is taken. The Court accepted the contention that the acquisition had lapsed due the change of purpose of reservation by the time the award was made. In the instant case, the award was made on 12.5.1983, but pursuant to the award the possession of the plot was not taken in the circumstances mentioned earlier. According to the appellant the acquisition was not complete, and the jurisdiction to further continue with the acquisition was no longer available.

87Copy pinpoint87. Two judgments of Bombay High Court were relied upon on behalf of the appellants i.e. Industrial Development

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 873 & ORS. [H.L. GOKHALE, J.] & Investment Company Pvt. Ltd. Vs. State of Maharashtra A reported in 1988 Mh.LJ 1027 (which was relied upon by the Learned Civil Judge Senior Division also), and Santu Kisan . Khandwe Vs. Special Land Acquisition Officer No. 2 Nasik & Ors reported in 1995 (1) Mh.LJ 363, in support of the proposition that the purpose of acquisition must subsists till B vesting. As far as the first judgment of the High Court in the case of Industrial Development Company is concerned, the same is about the provisions of MRTP Act, and it has been specifically overruled by this Court in Municipal Corporation of Greater Bombay Vs. Industrial Development Investment Co. Pvt. Ltd. c & Ors. reported in 1996 (11) sec 501. It was a case where the concerned parcel of land situated in Dharavi, Mumbai was acquired by the Municipal Corporation under the MRTP Act initially for the setting up of a Sewage Purification Plant, but subsequently the land was sought to be used for the residential 0 and commercial purposes of its employees, since this Sewage Treatment Plant was shifted to another parcel of land. This utilisation was held to be completely valid and permissible by K. Ramaswamy, J. ·

88Copy pinpoint88. The appellants before us contended that Majmudar, J., E the other Learned Judge deciding the l.D.I Co's. case had taken a different view on the issue of change of user, and therefore, the issue remained undecided, and that the view taken by the Bombay High Court in the above referred two. judgments deserved acceptance. The appellants submitted that Majmudar, F J. agreed with K. Ramaswamy, J. only to the extent that the petition filed by the respondents in the High Court deserved to be dismissed on the ground of delay and laches. As far as the ground of change of purpose is concerned, Majmudar J., expressed his different opinion in the following few sentences:- G

"33. Even though the proposal under Section 126(1) is for acquisition of land for a specified public purpose, if the planning authority wants to acquire the land subsequently for any other public purpose earmarked in the H

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A modified scheme as has happened in the present case that is if the appellant-Corporation which had initially proposed to acquire the land for extension of sewerage treatment plant wanted subsequently to acquire the same land for its staff quarters then such a purpose must be B specifically indicated in the plan meaning thereby that the land must be shown to be reserved for the staff quarters of the Corporation and then the Special Planning Authority which had become the appropriate planning authority, i.e., BMRDA would be required to issue a fresh proposal under c Section 126(1) read with Section 40(3)(e) and Section 116 of the MRTP Act and follow the gamut thereafter. So long as that was not done the earlier proposal under Section 126(1) and the consequential notification by the State Government under Section 126(2) which had lost their efficacy could not be revitalised .......... " D

89Copy pinpoint89. The appellants relied upon the judgment of this Court in Special Land Acquisition Bombay Vs. Mis Godrej & Boyce reported in AIR 1987 SC 2421, in support of their contention, that the purpose for acquisition must continue until possession E is taken. In that matter this Court held that the title to the land vests in the Government only when the possession is taken. It is however, material to note that this judgment is concerning Section 16 of the L.A. Act. As far as this submission is concerned, as held by K. Ramaswamy J., in l.D.A Co's case F (supra), one must note that the scheme of MRTP Act is different from that under the L.A. Act. In para 11 and 12 of his judgment in /.0./ Co's. case (supra) he has specifically held that Section 126 (1) of the MRTP Act is a substitute for the notification under Section 4 of the L.A. Act. A declaration under Section 126 (2) G is equivalent to a declaration under Section 6 of the L.A. Act. The objections of the persons concerned are considered before such land gets earmarked for public purpose in the plan. Therefore, there is no need of any enquiry as under Section SA of the L.A. Act. Section 126 (1) (c) specifically states that when H an application is made to the State Government for acquiring

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 875 & ORS. [H.L. GOKHALE, J.] the land under the L.A. Act, the land vests absolutely with the A Planning Authority. Therefore, it was held that in the scheme of the MRTP Act, it is not necessary that the original public purpose .should continue to exist till the award was made and possession taken. B

90Copy pinpoint90. The observations of K. Ramaswamy, J. in paragraph 11 of the judgment in l.D.A. Co's case (supra) are relevant in this behalf. This para reads as follows:-

"11. If we turn to Chapter Ill of the MRTP Act, we find that the entire machinery is provided for preparation, submission and sanction of development plan proceeding from Section 21 and ending with Section 31. These provisions, in short, provide for preparation of draft development plant by the planning authority inviting objections of persons concerned against such proposals, hearing of objections filed by the objectors as per Section 28 sub-section (3) by the Planning committee and then submitting its report to the planning authority which ultimately gets the proposals approved by the State Government under Section 30. All these provisions do indicate that requirement, designation, reservation or earmarking of any land for acquisition for any specified public purpose as indicated in the plan has already undergone the process of hearing after the objections of the persons concerned were considered and then such land gets earmarked for public purpose in the plan. It is after that stage, therefore,· when need to acquire such· earmarked, designated or reserved land for public purpose under the plan arises, that Section 126(1) proposal gets issued by the planning authority concerned and which itself becomes a substitute for Section 4(1) notification under the Act. ft would thus, appear that the scheme of acquisition of earmarked land under the plan for a specified public purpose thereunder, is a complete scheme or code under the MRTP Act. It is a distinct and H

876 SUPREME COURT REPORTS [2011] 12 S.C.R.

A independent scheme as compared to general scheme of acquisition under the Land Acquisition Act."

(emphasis supplied)

91Copy pinpoint91. In this connection, we must note Section 126(1) of the B MRTP Act provides for three modes of acquisition of land for public purposes specified in the plan. The third mode .is by making an application to the State Government for acquiring such land under the L.A. Act, and thereafter the land so acquired vests absolutely in the Planning Authority. Sections 126(1) and C (2) are extracted herein below for ready reference.

"126 - Acquisition of land required for public purposes specified in plans

(1) Where after the publication of a draft Regional Plan, a D Development or any other plan or Town Planning Scheme, any land is required or re~erved for any of the public purposes specified in any plan or scheme under this Act at any time the planning Authority, Development Authority, or as the case may be, [any Appropriate Authority may, expect as otherwise provided in section 113A] [acquire the land,-

(a) by agreement by paying an amount agreed to, or

(b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894(1of1894), Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 877 & ORS. [H.L. GOKHALE, J.] encumbrances, and also further additional Floor Space A. Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or B (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894(1 of 1894),and the land (together with the amenity, if any so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space C Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894(1 of 1890), as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.] D

(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or [if the State Government (except in cases falling under section E 49 [and except as provided in section 113A)] itself is of opinion] that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894(1of1894), in F respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section: [Provided that, subject to the provisions of sub-section (4), G no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.]

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92Copy pinpoint92. Section 128 of the MRTP Act strengthens the view that we are taking. Section 128 deals with a situation where the 8 land is sought to be acquired for a purpose other than the one which is designated in the plan or the scheme. In that case provisions of the L.A. Act apply with full force. This Section reads as follows:-

c "128. Power of State Government to acquire lands for purpose other than the one for which it is designated in draft plan or scheme.

(1) Where any land is included in [any plan or scheme] as being reserved, allotted or designated for any purpose D therein specified or for the purpose of Planning Authority or Development Authority or Appropriate Authority and the State Government is satisfied that the same land is needed for a public purpose different from any such public purpose or purpose of the Planning Authority, Development E Authority or Appropriate Authority, the State Government may, notwithstanding anything contained in this Act, acquire such land under the provisions of the Land Acquisition Act, 1894(1 of 1894).

F [(1A) Save as otherwise provided in this Act or any other law for the time being in force where any land included in any plan or scheme as being reserved, allotted or designated for any purpose therein specified or for the purposes of a Planning Authority or Development Authority G or Appropriate Authority, is being acquired by the State Government under the provisions of the Maharashtra Industrial Development Act, 1961 (Mah. Ill of 1962), for the Maharashtra Industrial Development Corporation (being the Special Planning Authority deemed to have been appointed as such under sub-section (1A) of section 40), H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 879 & ORS. [H.L. GOKHALE, J.]

the provisions of sub-sections (2) and (3) of this section A shall mutatis mutandis, apply to such acquisition proceedings.] .

(2) In the proceedings under the Land Acquisition Act, 1894(1 of 1894), the Planning Authority, or 8 Development Authority or Appropriate Authority, as the case may be, shall be deemed to be a person interested in the land acquired; and in determining the amount of compensation to be awarded, the market value of the land shall be assessed as if the land had been released from the reservation, allotment or designation made in the [any plan or scheme] or new town, as the case may be, and the Collector or the Court shall take into consideration the damage, if any, that Planning Authority or Development Authority or Appropriate Authority, as the case may be, may sustain by reason of acquisition of such land under the Land Acquisition Act, 1894(1 of 1894), or otherwise, and the proportionate cost of the Development plan or town planning scheme or new town, if any, incurred by such Authority and rendered abortive by reason of such acquisition. E

(3) On the land vesting, in the State Government under sections 16 or 17 of the Land Acquisition Act, 1894(1 of 1894), as the case may be, the [relevant plan or scheme] shall be deemed to be suitably varied by reason of acquisition of the said land."

Sub-section (1) of this Section states that in such situations the provision of L.A. Act will apply notwithstanding anything contained in the MRTP Act, and sub-section (3) specifically states that in such an event the vesting will take place under Section 16 and 17 of the L.A. Act as the case may be. That is not the case with respect to the acquisition under Section 126 of the MRTP Act, where the vesting takes place in the three circumstances mentioned thereunder. In the present case also the acquisition is resorted to by issuing a notification under H

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A Section 126 read with Section 6 of the L.A. Act. The vesting therefore takes place at that stage.·

93Copy pinpoint93. After the declaration is made under Section 126 (2) of the MRTP Act, the proceedings to determine the compensation follow the procedure as laid down under the L.A. 8 Act until Section 11 thereof. A notice is given to the interested persons as required under Section 9 of the L.A. Act to lodge their claims to compensation for all the interests in such land. Thereafter, they are heard in the inquiry made by the Collector or the S.L.A.O., and after following the requirements as laid down in Section 11, the compensation is arrived at. The change of purpose of utilisation of the land acquired under Section 126 of the Act does not make any difference in this behalf. There is no prejudice caused to the landowners since the award is made only after affording them full hearing concerning their claims for compensation.

94Copy pinpoint94. (i) When it comes to urgency also, there is a separate provision in the MRTP Act, distinct from the one in the L.A. Act. Section 129 of the MRTP Act contains provisions different from E Section 17 of the L.A. Act. Under sub-Section (2) of Section 129 there is the requirement of paying to the owner of the land concerned, an interest @ 4% per annum on the amount of compensation, from the date of taking possession of the land until the date of payment. F (ii) Thus the MRTP Act contains a separate scheme in Chapter VI I of the Act distinct from the one in L.A. Act. This is because MRTP Act is a special act enacted for the purpose of planned development and the provisions concerning land acquisition are made therein in that context.

95Copy pinpoint95. We may mention at this stage that recently a Constitution Bench of this Court has also held in the context of Section 11A of the L.A. Act (providing for two years period to make the award) in Gimar Traders (3) Vs. State of Maharashtra

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 881 & ORS. [H.L. GOKHALE, J.] & Ors. reported in 2011 (3) SCC 1, that only the provisions with respect to the acquisition of land, payment of compensation and recourse of legal remedies under the L.A. Act can be read into Chapter VII of the MRTP Act concerning Land Acquisition, and Section 11A of the L.A. Act will not apply thereto. It held that in the scheme of the MRTP Act, the provisions of Land s Acquisition Act would apply only until the making of the award under Section 11 of the Act. The Court held that MRTP Act is a self contained code and Sections 126 to 129 thereof clearly enunciate the intention of the framers that substantive provisions of L.A. Act are not applicable to MRTP Act. In para 129 of the c judgment the Constitution Bench has specifically held:-

"129 ....... Vesting, unlike Section 16 of the Land Acquisition Act which operates only after the award is made and compensation is given, whereas under the MRTP Act it may operate even at the initial stages before making of an award, for example, under Sections 126(1)(c) and 83."

96Copy pinpoint96. The appellants ·herein have contended, and so had the respondents in /.D.A. Co's case (supra) contended that the original public purpose should continue till the award was made and possession taken. While dealing with this proposition, K. Ramaswamy, J. took an overview of the leading judgments in this behalf. The Learned Judge in arriving at his conclusions referred to the law laid down by this Court in Ghu/am Mustafa . F Vs. State of Maharashtra reported in 1976 ( 1) SCC 800, Mangat Oram Vs. State of Orissa reported in 1977 (2) SCC 46, State of Maharashtra Vs. Mahadeo Deoman Rai reported in 1990 (3) SCC 579 , Collector of 24 Parganas Vs. La/it Mohan Mullick reported in 1986 (2) SCC 138, and Ram Lal G Sethi Vs. State of Haryana reported in 1990 Supp. SCC 11.

97Copy pinpoint97. It is relevant to refer to these judgments. Ghu/am Mustafa (supra) & Mangat Oram (Supra) were both cases concerning the acquisition under the Land Acquisition Act. In H

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A the case of Ghulam Mustafa, V.R. Krishna Iyer J., observed as follows:-

"..... once the original acquisition is valid and title has vested in the municipality how it uses the excess land is no concern of the original owner and cannot be the basis B for invalidating the acquisition. There is no principle of law by which a valid compulsory acquisition stands voided because long later the requiring authority diverts it to a public purpose other than the one stated in the Section 6(3) declaration." c In Mangat Oram (supra) a bench of three Judges specifically held that use of land after a valid acquisition for a different public purpose will not invalidate the acquisition. In Collector of 24 Parganas (supra) the notification under Section D 4 of the West Bengal Land Development and Planning Act was issued for settlement and rehabilitation of displaced persons. Subsequently the land was utilised for establishment of a Hospital for crippled children, which was held to be not vitiated. In Union of India Vs. Jaswant Rai Kochhar reported in 1996 E (3) sec 491 land acquired for housing scheme was utilised for commercial purpose i.e. a District Centre. This Court held in that matter that it is will settled law that land sought to be acquired for one public purpose may be used for another public purpose. In State of Maharashtra Vs. Mahadeo Deoman Rai F reported in 1990 (3) SCC 579 yet another Bench of three Judges had held that requirement of public purpose may change from time to time but the change will not vitiate the acquisition proceeding. The opinion rendered by K. Ramaswamy J. is in conformity with this line of judgments. G Following this law, K. Ramaswamy,_ J. held in para 22 as follows:-

"22. It is thus well-settled legal position that the land acquired for a public purpose may be used for another public purpose on account of change or surplus thereof. H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 883 & ORS. [H.L GOKHALE, J.] The acquisition validly made does not become invalid by A change of the user or change of the user in the Scheme as per the approved plan ........... It would not, therefore, be necessary that the original public purpose should continue to e).Cist till the award was made and possession taken." B

This being the position, there is no difficultly in stating that the two judgments of the Bombay High Court which are relied upon by the appellants (viz. in the cases of 1.0./. Co. (supra) and Santu Kisan Khandwe (supra) do not lay down the correct position of law. We are in respectful agreement with the opinion C rendered by K.Ramaswamy J. in /.0./. Co's Case. The acquisition of the land in the present case cannot said to be invalid on account of change of purpose during acquisition ..

98Copy pinpoint98. That apart, there is also the question as to whether the D 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. E Ohirendra 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 F 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. G Conduct of the Landowner/Developer

99Copy pinpoint99. The facts as narrated earlier can be placed into proper prospective if we note the conduct of the landowner and the H

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A developer appointed by him as it emerges from stage to stage which is as follows:-

(a) The landowner never raised any objection when the F.P. No. 110 was sought to be reserved for a public purpose, viz. either for a garden/playground or subsequently for a 8 primary school.

(b) On his issuing the purchase notice to the Government to purchase the land and to commence the proceedings for acquisition, the State Government responded by c confirming the purchase notice under Section 49 (4) of the Act by its letter dated 5.12.1979.

(c) When SLAO started the acquisitions proceedings, and when the notice under Section 9 of the L.A. Act was issued, D the landowner replied the same but did not challenge the acquisition as such. He merely demanded compensation at a rate of Rs. 480 per sq.m, and demanded that the material removed after demolition of the temporary structures (of the tenants) on the property be handed over to him. E (d) After the SLAO rejected the objections of the landowner as well as the tenants, and gave his award dated 12.5.1983, the landowner accepted the compensation on 15.3.1985, though under protest. F (e) After the Reference Court enhanced the solatium and the special component by its order dated 15.4.1988, the landowner accepted the enhanced amount, once again under protest. However, he did not file the statutory appeal G available to him under Section 54 of the L.A. Act. (f) When the notice to take possession was given, it is the tenants alone who filed a suit to challenge the acquisition.