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

(g) After the injunction in that suit No. 966 of 1983 was vacated, the tenants represented to the Mini~ter of State

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 885 & ORS. [H.L. GOKHALE, J.] for UDO, pointing out their difficulties. The landowner did not challenge the acquisition in any manner whatsoever.

{h) After the Development Plan under the MRTP Act was sanctioned, though the reservation was continued, the purpose of utilization of the land was changed in the 1987 8 D.P. plan from garden to primary school. Thereafter, when the SLAO gave one more notice to take possession on 1.3.1988, some of the tenants filed another Civil Suit bearing No. 397 of 1988 in the Court of Civil Judge, Senior Division Pune. It was at that stage that the landowner who was a defendant in that suit, applied for transposing himself C as a plaintiff which application was allowed on 2.4.1988. The Civil Court having held that the acquisition had lapsed due to the change of purpose of acquisition (from what it originally was in 1966), the PMC filed an Appeal which is pending thereafter. D

{i) After Shri Manohar Joshi took over as the Chief Minister on 14.3.1995, the landowner entered into a Development agreement with Mis Vyas Constructions on 20.10.1995. Besides, he executed two powers of attorney, one in favour of its proprietor Shri Girish Vyas on 20.10.1995 for carrying out development on F. P. No. 110, and another in favour of Shri Shriram Karandikar on 26.10.1995 to take necessary steps concerning this development. Thereafter the follow-up steps were taken by Shri Karandikar, until the last stage when Shri Girish Vyas stepped in.

0) After the City Engineer, Pune rejected the proposal of the Architect of the landowner for building permission by his reply dated 6.11.1995, the above referred Shri Karandikar straightaway wrote to the Minister of State for G UDO on 20.11.1995, and sought a direction to the Municipal Commissioner to consider landowner's application for development of the property. This application was not addressed to the State Government or to the Secretary concerned, but straightaway to the H

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A Minister of State for UDO, and did not bear any inward stamp of the department. The noting of the Private Secretary of the Minister of State in UDO in the margin of the application showed that it was directly received at the Minister's level. Thereafter as directed by the Minister of B State, the Under Secretary of UDO immediately called a meeting of high ranking officers such as Secretary UDO, Director Town Planning, Commissioner of PMC, City Engineer of PMC, and Under Secretary UDO, which meeting would not have been possible unless one had a c clout with the Ministry.

(k) The initial stand of the administration was clearly reflected in the notings, and in the record of the meeting held on 3.2.1996. The preliminary note dated 2.2.1996 from the department clearly stated that the land had been D acquired after taking the necessary action on the purchase notice, and the compensation had been accepted. The question of returning of the plot to the landowner therefore did not arise.

E (I) During the meeting held on 3.2.1996 the City Engineer of PMC also pointed out that landowner had never objected to the reservation on the plot, or the change in the purpose of its utilization from 1982 to 1987, i.e. during the entire process of revising the development plan. If the proceeding F before the Minister of State was in the nature of an appeal under Section 47 of the MRTP Act (against the rejection of the proposal of development) under Section 45, the same could not be entertained, and the appeal had to be rejected. If it was an application for de-reservation then it had to be considered under Section 37 of the MRTP Act G and not otherwise. (m) The landowner initially took the stand that it was not an appeal, but subsequently wrote a letter on 23.3.1996 through Shri Karandikar that it was an appeal under H Section 47 of the MRTP Act. The landowner and the

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 887 & ORS. [H.L. GOKHALE, J.] developer have been changing their stand from time to A time.

The conduct of the Minister of State for UDO, the. then Chief Minister, and the Municipal Commissioner

100Copy pinpoint100. We may now refer to the conduct of the then Minister B of State for UDO, the then Chief Minister and the then Municipal Commissioner.

(a) As stated above the application of the landowner was received directly at the le'(el of the Minister of State and c immediately a meeting of high ranking officers was called, which is normally not done.

(b) In spite of a clear initial stand taken by the City Engineer PMC, as well as by the senior officers of UDO such as its Secretary, in view of the landowner submitting that on the D adjoining plots schools had been developed, the Minister of State for UDO asked the Municipal Commissioner to survey the property and make a report, whether the PMC really needed the concerned property. The note of the meeting dated 3.2.1996 shows that initially the Minister of E State for UDO was also of the view that if necessary a direction may be issued under Section 37 of the Act, and only a part of F.P. 110 could be released if PMC did not have any objection to reduce the area under reservation. F (c) In view of the direction of the Minister of State, the Municipal Commissioner who is the Chief Executive of PMC and an I.AS. officer of a high rank was asked to make a report after personally making a site inspection. A direction to a high ranking officer to make a site G inspection is not expected in such a case, and is quite unusual and disturbing to say the least.

(d) In his letter dated 17.4.1996 the Municipal Commissioner reiterated the earlier stated stand of PMC to begin with, and then gave the report about the schools H

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A in the vicinity. However, he volunteered to add thereafter that private institutions may not come to this plot to set up a primary school, and PMC may as well spend its funds elsewhere. This was not correct since the applications of two reputed educational institutions for this very plot were B pending with the PMC, and this fact was not stated by the Commissioner in his report.

(e) In view of the direction of the State Government, the Commissioner held discussions with Shri Karandikar, who offered to give an alternate unencumbered plot of land of c about 5000 to 10,000 sq. feet free of cost. Thereafter the Commissioner recorded in his letter the two proposals given by Shri Karandikar, and observed that if the school was to be shifted from F.P. No. 110, an action under Section 37 of th~ MRTP Act as well as the permission from PMC will be required.

(f) On 24.4.1996 there is a noting (which is subsequent to the letter of the Municipal Commissioner dated 17.4.1996) that the file was called by the then Chief Minister for his perusal. Thus the Chief Minister had kept himself fully abreast with the developments in this matter.

(g) The UDO department did not accept the proposal of shifting the school from F.P. No. 110 to a place far away, as seen from the note prepared by the department (signed by the Deputy Secretary on 4.6.1996) recording that if the school was to be shifted from F.P. No. 110, it had to come up in the vicinity of approximately 200 metres as per rule 13.5 of Pune D.C. Rules. The note suggested acceptance of the proposal of reduction of 50% of the area under reservation by resorting to the procedure under Section 37 of MRTP Act.

(h) The Minister of State did not approve this note dated 4.6.1996, and in view of Shri Karandikar insisting on H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 889 & ORS. [H.L. GOKHALE, J.] shifting the school from F.P. No. 110, the subsequent note A dated 13.6.1996 recorded that if the condition of 200 metres is to be relaxed, orders will have to be obtained from the Chief Miriister (which power is disputed by the Principal Secretary, UDO in his subsequent note dated 24.7.1998). B (i) Thereafter, the developer offered another parcel of land at Lohegaon (which is a far off place), on which proposal the department prepared a note to give four directions to PMC which have been referred earlier. Under that proposal, Lohegaon land was to be exchanged for the C concerned F.P. No. 110 which was to be released by invoking DC Rule 13.5, and the landowner was to return to PMC the amount of compensation received. This note was approved by the Chief Minister on 21.8.1996 and accordingly a direction was given to the Municipal D Commissioner on 3.9.1996 to accept the proposal of the developer and issue the development permission for F.P. No. 110.

(j) The Senior Law Officer of the PMC recorded an objection that such permission will require the approval of the general body of the Municipal Corporation, but the Municipal Commissioner overruled him on 21.9.1996, in view of the direction of the government to act under DC Rule 13.5 as stated above, and ignored the mandatory provision of Section 37 of MRTP Act.

(k) Thereafter the commencement certificates have been issued on 28.11.1996, and an occupation certificate for the tenants' building was also given on 20.12.1997.· G (I) At this stage, the land developer Shri Girish Vyas had written on 15.7.1998 to PMC on learning that according to PMC the Lohegaon land was not suitable for a school. He offered to handover another parcel of land in a residential zone at Mundhwa (which is also a far off place), H

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

A and to deposit whatever amount that was required for the construction of a school of 500 sq. feet area at Mundhwa or elsewhere, but the Completion Certificate for the building for the other occupants of F.P. No. 11 O (named as Sun-Dew Apartment) be issued. B (m) There is a clear office note dated 22.7.1998 on record which shows that there was already a criticism of this matter in the newspapers and in the General Body of PMC, that one educational amenity in that area was being destroyed. The note recorded that Sr. Chief Secretary of c Chief Minister had issued instructions, to put up a self- explanatory note for the perusal of the Chief Minister, to enable him to answer the probable questions in the assembly. This note dated 22. 7.1998 was specifically marked for the Chief Minister. D (n) The Principal Secretary UDD·had opined on 24.7.1998 that resort to DC Rule 13.5 will not be legal, and an action be taken under Section 37 of MRTP Act. Yet, in view of the favourable indication of the Municipal Commissioner E in his letter dated 17.4.1996, a note was prepared on 27.7.1998 to continue to maintain the decision under DC Rule 13.5.

(o) When Shri Girish Vyas had entered into the picture through his above referred letter, the Additional Chief F Secretary made a note that since the developer is related to the Chief Minister, the Minister of State may take proper decision as per the rules. It is only because of this note that the Minister of State had signed the papers approving the proposal of the department, and directing that the necessary orders be issued to the PMC. Accordingly, the Deputy Secretary of UDO issued the consequent letter dated 29. 7 .1998 to the Municipal Commissioner, permitting him to accept the land at Mundhwa or elsewhere, as well as the amount to construct a school building of 500 sq. feet, and to issue the occupancy

GIRISH VYAS & ANR. v. STATE OF. MAHARASHTRA 891 & ORS. [H.L. GOKHALE, J.) certificate for the Sundew Apartments. A (p) Thus it has got to be inferred that not only the then Chief Minister was fully aware about this matter right from April 1996, until the last direction of UDO dated 29.7.1998, but was associated with the decision making process and the B directions issued all throughout.

101Copy pinpoint101. The events in this matter disclose that although the officers of UDO and the PMC initially took the clear stand opposing the proposal on behalf of the landowner to put up a residential building in place of a Primary School, the Minister C of State for Urban Development asked the Municipal Commissioner to personally carry out a survey of the property, on the ground that two schools had come up in the near vicinity, ignoring the fact that they had so come up as per the provision in the D.P. Plan itself. Thereafter when it was pointed out that the permission of the general body of the Municipal Corporation wiH be required for the modification, that submission was by- passed. The provision of DC Rule 13.5 requiring alternate land to be provided for the same purpose within 200 meters was also given a go-bye, and this rule was utilized to accept the proposal to shift the school to a very far off place. The mandatory provision for modification under Section 37 of the · MRTP Act was totally ignored. Ultimately only an amount for constructing a school building elsewhere and the land therefor was offered to the Municipal Corporation, for getting a reserved plot of land in a prime area of the city released from a public amenify. Last but not the least, the Municipal Corporation was instructed to withdraw the First Appeal which it had filed to challenge the decision of the District Court in favour of the landowner in the matter of acquisition. G

102Copy pinpoint102. It is material to note that after the Municipal Commissioner sent his report dated 17.4.1996, the Private Secretary to the then Chief Minister Shri Manohar Joshi had • called for the file for his perusal. After all necessary directions were decided, the Chief Minister placed on record his approval H

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A or: 21.8.1996 with an apparently innocent remark 'All actions be taken in accordance with law', though he did not forget to record "No objection". Thus, the decision of the Government dated 3.9.1996 to shift the reservation of a primary school from F.P. 110 under D.C. Rule 13.5 was under his order dated B 21.8.1996. Subsequently, when his son-in-law Shri Girish Vyas wrote the letter dated 15.7.1998 that money be received for constructing a school somewhere else, it became obvious on the record that the son-in-law of the then Chief Minister was behind the project. At that stage also the Chief Minister had to c be pointed out by the Addi. Chief Secretary that the developer is related to him, and therefore, the necessary decision may not be taken by him, but by the Minister of State. Therefore, the file went to the Minister of State for UDO on whose direction the last necessary letter has been sent to PMC by the Deputy Secretary UDO on 29.7.1998. However this subsequent 0 decision is in continuation to the initial decision of the Chief Minister dated 21.8.1996, and therefore the responsibility for the clearance of this disputed construction squarely lies on his shoulders.

E A brief summary

103Copy pinpoint103. This is not a case where the landowner or his developer have approached the appropriate authority on the basis of their allegedly subsisting rights under the erstwhile T.P. F schem·e contending that setting up of a primary school on that plot contrary thereto would be affecting their right to develop the property and is therefore illegal. It is also not a case where they have approached the appropriate authority pointing out that there are sufficient number of schools in the near vicinity with supporting information and, therefore, sought deletion of reservation on the concerned plot. This is a case where the landowner never raised either of the two pleas to begin with.· He was conscious of the fact that the land was reserved for a public garden in the 1966 D.P. Plan and, therefore, gave a purchase notice in May, 1979 which was confirmed by the State H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 893 & ORS. [H.L. GOKHALE, J.] Government in December, 1979. When the D.P. Plan was A revised during 1982-1987, he never raised any of the above two submissions. He did not even challenge the subsequent reser-.ration for a primary school finalized in 1987. Only in 1995 when Shri Mariohar Joshi became the Chief Minister, he appointed his son-in-law as a developer and another power of 8 attorney Shri Karandikar to approach the Ministers directly. He pointed out that two schools had come up on the adjoining plots (which was in fact as per the D.P. Plan itself), and the Minister used this information to get a report from the Municipal Commissioner who suppressed the fact that applications for C this very plot from two educational institutions were pending with PMC. Then also the order of deletion was not passed either under Section 37 (leave aside Section 22A); or Section 50 of the Act which was invoked for the first time in this Court (and which otherwise also could not be applied). The order of deletion was passed under D.C. Rule 13.5 which had no 0 application.

104Copy pinpoint104. The effect of what has been done is this: that a landowner accepts compensation for his land when acquisition proceedings are initiated at his instance. The landowner does E not challenge either the acquisition proceedings or the amount of compensation, but in fact collects the amount. When the tenants challenge the acquisition, the land owner joins the same subsequently. When the award is set aside by the civil court, and the Municipal Corporation files the appeal, the landowner F . approaches a close relative of the Chief Minister, who happens to be a property developer. The development permission is granted by-passing the objections of the concerned department of the Government and the Municipal Corporation, and flouting all relevant provisions of law. The Municipal Corporation is G asked to withdraw the appeal against the judgment holding that acquisition has lapsed. When the actions are challenged in a public interest litigation, the landowner contends that he had a subsisting right under the erstwhile T.P. Scheme, in spite of a subsequent reservation for a public amenity in the D.P. Plan H

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

A holding the field, and that the construction is permissible though its legality cannot be traced to any provision of law.

105Copy pinpoint105. Present case is not one where permission was sought for the construction under erstwhile T.P. scheme, or under Section 50 of the MRTP Act. This is a case where the 8 personal relationship'of the developer with the Chief Minister was apparently used to obtain permission for construction without following any due process of law. This is a case of rules and procedures being circumvented to benefit a close relative of the Chief Minister. It is a clear case of ma/a fide exercise of the powers and, therefore, the High Court was perfectly justified in canceling the development permission which was granted by the State Government. The development permission could not be defended either under Rule 6.6.2.2 or under Section 50. The MRTP Act requires a valid development permission under chapter IV of the act, and in the instant case there is none. Consequently, the construction put up on the basis of such permission had to be held to be illegal. In the circumstances, we uphold the judgment of the Division Bench .as fully justified in law and in the facts of the case. E Impugned Order passed by the Division Bench

106Copy pinpoint106. (i) As seen above, the Division Bench in the impugned judgment came to the conclusion that the disputed construction by the developer was totally illegal, and also F concluded that there was nothing wrong with the acquisition of F.P. No.110. Having held so, it passed the impugned order which can be split into two parts. The first part of the order is arising out of the determination concerning the legality of the construction, and it can be seen in sub-paragraphs (a) to (d) G of para 227 of the judgment. The order pertaining to costs is connected with this part and it is in sub-paragraph (f). The second part of the order is regarding appropriate criminal investigation which is in sub-paragraph (e).

GIRISH 'VYAS & ANR. v. STATE OF MAHARASHTRA 895 & ORS. [H.L. GOKHALE, J.] (ii) In the first part of its order the Division Bench A directed:-

(a) the cancellation of the commencement certificate dated 20.8.1996, 3.5.1997 and

3. 7.1998, and occupation certificate dated B

(b) the PMC and its Commissioner to call upon the landowner and the developer to restore F.P. No.110 to the position prior to the date of the earliest of the commencement c certificates, failing which these authorities will take action to demolish the disputed construction, and collect the cost of such action from the landowner and the developer, D (c) the PMC to move an application for restoration of First Appeal (stamp no.18615 of 1994), --· and E (d) rejected the prayer to revive first appeal without the demolition of the structure.

(f) the Division Bench directed payment of cost of Rs. 10,000/- each by the State of F Maharashtra, the PMC, the then Chief Minister, the then Minister of State, the developer and the Municipal Commissioner to the petitioners.

107Copy pinpoint107. In view of the gross illegality in the order of the State G Government and PMC in granting the development permission, the direction (a) for cancellation of Commencement Certificates and Occupation Certificate had to be issued and the same can not be faulted. As far as the direction (c) is concerned, it was noted by the High Court that the PMC had been forced by the H

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

A . State Government to apply for withdrawal of its First Appeal so that the judgment of the Civil Court remains undisturbed. Since the High Court came to the conclusion that there were nothing illegal about the acquisition, the First Appeal had to be restored. The direction is therefore fully justified. We may note B that PMC has already filed an application for restoration of the First Appeal.

Direction to demolish the disputed building, and rejection of the objection based on alleged delay and laches c 108. The direction (b) in the impugned order was issued basically on two grounds. Firstly, the development permission had no legal validity whatsoever, and secondly it was clearly a case of showing favouritism by going out of the way and circumventing the law. Besides, since the challenge to D acquisition was being rejected, it would not have been proper to postpone the demolition of the disputed construction on the ground of pendency of the First Appeal, since the construction was absolutely illegal. Hence, the High Court issued direction (d) as above. E

109Copy pinpoint109. The demolition was objected to by the appellants amongst others on the ground that there was delay and !aches in moving the petitions to the High Court. It was submitted that if the petitioners were vigilant, they could have seen the building coming up from November 1996 onwards, but the petitions have been filed only in August 1998. According to them by the time the petitions were filed, the tenants' wing was complete, and even the other wing of Sundew Apartments was nearing completion The Division Bench has rejected this submission in· paragraph 220 of its judgment by observing that merely because a construction is coming up, a citizen cannot assume that it is illegal or that the developer had obtained the construction permission in a manner contrary to law. Besides, when the petitioner in Writ Petition No. 4434 of 1998 (who is a Corporator) sought the information about the construction, he was informed by PMC that the same could not be made

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 897 & ORS. [H.L. GOKHALE, J.] available under the relevant rules, though no such rules were A ' shown to the Division Bench. The High Court has on the other hand noted that as a matter of fact even the construction of the building meant for the tenants was actually said to have commenced in March 1997 only. Hence, in the facts of the present case it could not be said that the writ petitions suffered B on account of delay or laches, and therefore the High Court was right in rejecting that contention.

110Copy pinpoint110. With respect to the direction for demolition, we may note that similar direction was given way back in the case of Pratibha Cooperative Housing Society Vs. State of C Maharashtra reported in 1991 (3) SCC 341. The appellant society situated in a prime area in Mumbai had added eight upper floors in excess of the F.S.I. permissible, and the Municipal Corporation directed removal of those floors. The petitioner society challenged the order of the Municipal D Corporation. A Division Bench of the Bombay High Court dismissed the Writ Petition, but permitted the society to give proposals to reduce the area of construction upto the permissible limit. During the pendency of the appeal from the judgment of the High Court, the proposal of the society was E examined by the Municipal Corporation and was found unacceptable. While dismissing the appeal, this Court noted in the aforesaid judgment that 'the tendency of raising unlawful construction by the builders in violation of the rules and regulations of the Corporation was rampant' in the city of F Mumbai. Thereafter it observed in para 6 of the judgment:-

"We are also of the view that the tendency of raising unlawful construction and unauthorised encroachments is increasing in the entire country and such activities are G required to be dealt with by firm hands.

Having noted so it upheld the demolition of the upper eight floors and further observed in the last para of the judgment

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A "Before parting with the case we would like to observe that this case should be a pointer to all the builders that making of unauthorised constructions never pays and is against the interest of the society."

111Copy pinpoint111. The observations of the Court however, have had no 8 effect. In M./ Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors. reported in 1999 (6) sec 464, the issue was with respect to the retention of a public amenity viz. a park in a congested area of city of Lucknow. The park was of historical importance and also an environmental necessity. The Lucknow Mahapalika C had permitted the appellant builder to put up a shopping complex and a parking facility thereon. The appellant was permitted to do so without calling any bids and for hardly any monetary gain to the Municipal Corporation. This was also a case where the construction was on the basis of an agreement D with the builder which agreement amounted to a fraud on the powers of the Mahapalika, and a clear case of favouritism, as in the present case. This Court dismissed the appeal and directed the demolition of the dis::JUted construction and observed as follows in para 73 of its judgment:- E "73 ........ This Court in numerous decisions has held that no consideration should be shown to the builder or any other person where construction is unauthorised. This dicta is now almost bordering the rule of law. Stress was laid by the appellant and the prospective allottees of the shops to exercise judicial discretion in moulding the relief. Such a discretion cannot be exercised which encourages illegality or perpetuates an illegality. Unauthorised construction, if it is illegal and cannot be compounded, has to be demolished. There is no way out. Judicial discretion cannot be guided by expediency. Courts are not free from statutory fetters. Justice is to be rendered in accordance with law...... "

(emphasis supplied) H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 899 & ORS. [H.L. GOKHALE, J.]

112Copy pinpoint112. In the present case, one would have thought of A retaining the building and utilising it for a school. The PMC had shown its willingness to consider such a proposal. But the developer wanted to retain half of the flats of this ten storey building which would have been contrary to the provision in the Development Plan, and hence the proposal fell through. That B apart, such a compounding would have been contrary to the above dicta in M./ Builders case (supra). There is no redeeming feature whatsoever in the present case. It is clearly a case of misuse of one's position for the benefit of a relative leading to an action which is nothing short of fraud on one's c power and also on the statute. There is no reason for us to interfere in the order passed by the High Court directing the demolition of the disputed buildings.

113Copy pinpoint113. The building constructed for the tenants is meant for accommodating them, and it has been stated on behalf of the developer that he is not interested in dis-housing them. The learned senior counsel for PMC Shri R.P. Bhat has also stated on instructions, that PMC has no objection to the retention.of the building constructed for the erstwhile occupants of the plot, however these occupants will now have to continue in that building as tenants of PMC. As far as these occupants are concerned, their status at the highest was that of tenants of the landowner. They claim to have been residing on this plot for over fifty years, and appear to be belonging to economically weaker section of the society. Their only request during the acquisition proceedings was that they should be accommodated on this very plot of land. It is another matter that in the High Court and in this Court they supported the landowner and the developer, in view of the promise given to them that in the event the landowner and the developer succeed, the tenants will get ownership rights. Now that the plea of the landowner and the developer is rejected,, the best that can happen to these occupants is to get the' tenancy rights on this very plot of land. That apart, in view of their long stay on this plot, they had to be rehabilitated. The offer of PMC to accommodate them on the H

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

A very plot of land is more than fair, and deserves acceptance. Since, the tenants were already in possession of a part of the plot for residential purpose, they are being continued to remain on that plot for that very purpose. In that event, the tenants may not be entitled to receive any monetary compensation since this B offer is as per their original demand and it very much compensates them. However, since the amount of compensation awarded to them was too meagre, if they have collected it, they need not return the same to PMC. This being the position, in our view, the main operative order passed by c the High Court needs to be modified appropriately. In the circumstances, we modify and restrict the operative order of demolition only to the extent it directs the removal I demolition of the building meant for the persons other than these tenants (i.e. the ten storey building named as Sundew Apartments).

114Copy pinpoint114. We may as well mention at this stage that as far as this building viz. Sundew Apartments is concerned, no one, except a bank had come forward to claim any third party rights, or prejudice on account of the order of demolition passed by the High Court in spite of the well publicised litiga!ion of this matter. The concerned bank had advanced a loan to the developer against the security of two flats in that building, and pt it !n:t~rvened only at th.e last st~ge passin~ of the order. T~e D1v1s1on Bench has rightly reie~d the claim of the bank m paragraphs 224 to 226 of its judgment by observing that the court could not accept the contention of the bank that it was not aware of th~ illegality on the part of the developer. The court · did not accept the bank's plea of innocently advancing the_ money, since the mortgage was executed on 13.8.1998, whereas the allegations concerning the illegality of this transaction had appeared in the newspapers right from March

1998. The bank should have considered the matter in depth before advancing the loan. In any case the demolition will only extinguish its security though i\s claim against the developer may remain. H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 901 & ORS. [H.L. GOKHALE, J.]

Adverse remarks, and the direction for criminal A investigation

115Copy pinpoint115. The second part of the operative order in the impugned judgment was based on the adverse inferences drawn by the Division Bench against the then Chief Minister, B the Minister of State and the Municipal Commissioner. The petitioners had infact sought a prosecution against all of them. However, after considering the facts and circumstances of the case the court was not inclined to grant that relief, without appropriate prior investigation. Therefore, with respect to this prayer the Court passed an order which is contained in paragraph 227 (e) in two parts as follows:

(i) to direct the State of Maharashtra to make appropriate investigation against the then Chief Minister, the Minister of State and the Municipal Commissioner by an impartial agency, and

(ii) if satisfied that any criminal offences have been committed by the aforesaid respondents in the discharge of their duties, to take such action as is warranted in law. E

. These three appellants have therefore made two fold prayers viz. expunging the adverse observations, and setting aside the direction for appropriate investigation to be followed by such action as is warranted in law. F Adverse .remarks by the Division Bench against the Municipal Commissioner~ Minister of State and the then Chief Minister:- , I Adverse remarks aga.inst the Municipal . G Commissioner

116Copy pinpoint116. Apart from other allegatiorls, it has been specifically aU,eged in Writ Petition 4434 of 1998 that the then Municipal Commissioner "wilted under the pressure of the Chief Minister. ... .", "acted in flagrant disregard to the provisions of H

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

A the law", and "with a view to favour his son-in-law Shri Girish Vyas acted illegally and ma/a fide". As we have seen from the notings on the file, initially he did take a stand which could be said to be as per the record, and in consonance with law. In his affidavit before the High Court, he took the stand that he B acted under the directions of the Minister, and hence, he should not be blamed for the ultimate decision. Shri Narshima, learned senior counsel appearing for him drew our attention to the Maharashtra Government Rules of Business framed under Article 166 of the Constitution in this behalf. He also tried to c defend the Commissioner's action by invoking Section 154 of the MRTP Act which lays down amongst others that the Planning Authority has to carry out the directions and instructions of the State Government for the efficient administration of the act. The Division Bench declined to accept this explanation. We have already dealt with this submission and recorded our reasons 0 as to why we also cannot accept this reliance on Section 154.

117Copy pinpoint117. (i) It was submitted on behalf of the Commissioner that he brought the correct legal position to the notice of the Minister of State to begin with, but ultimately had to give up due to the instructions from the Minister of State, meaning thereby that he cannot be blamed since he was acting under the directions of his superiors. Reliance was placed in this behalf on the proposition in paragraph 16 of Tarlochan Oas Vs. State of Punjab & Ors reported in 2001 (6) SCC 260 to the following effect:-

"No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior."

(ii) This defence cannot help him much if we see his actions atleast on two occasions. Firstly, when he made his report dated 17.4.1996 to the Minister of State, he overlooked the fact that the reservation on this plot was for H a primary school, and not merely for a municipal primary

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 903 & ORS. [H.L. GOKHALE, J.] school. As has been noted by the Division Bench, two private schools had already come up on the adjoining plots as per the D.P. provision itself. Besides, two renowned educational institutions had applied way back for this plot of iand for running of schools thereon. The Commissioner did not place this very vital information before the Minister of State in his report. On the other hand he stated that Prabhat Road being a higher middle class area, a municipal school may not get adequate students. The Division Bench has therefore, observed in paragraph 143 of its judgment, that his report was "far from truth". c Secondly, he bypassed the general body of the Municipal Corporation in the matter of deleting the reservation on F.P. No. 110 inspite of being aware of the correct legal position, and his attention having been specifically drawn thereto by the senior law officer of PMC. D

118Copy pinpoint118. Both these acts on the part of the Municipal Commissioner clearly amounted to failure on his part to discharge his duty correctly for which he cannot blame anybody else. This is the least that is got to be stated about his conduct by this Court. The Division Bench has commented that he acted "as a loyal soldier perhaps more loyal to the king than king himself', which was "with a view to please his bosses". It is true that in the first meeting called by the Minister of State for UDO, it was pointed out on behalf of PMC that the land had been acquired. The Commissioner had also pointed out that if the reservation was to be reduced or to be deleted, the permission of the Municipal Corporation will have to be obtained. His report of 17.4.1996, cannot however be said to be fully satisfactory and he failed in his duty when he permitted the by-passing of the Municipal Corporation in the matter of . G deletion of reservation on F.P. No.110, which he claims to have done in view of the direction from the Chief Minister under the 1 D.C. Rules. We can say that a high ranking IAS Officer was expected to show his mettle, and he failed to come up to the expectations, but noticing that he had no personal interest in H

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

A the matter, and he was acting under the directions of his superior, the Division Bench could have avoided making the particular remarks against him.

The conduct of the Minister of State

119Copy pinpoint119. In paragraph 3 of Writ Petition 4434 of 1998, there is a specific allegation against the then Minister of State as well as the then Chief Minister of "the blatant misuse of executive powers", "with a sole objective of ensuring a substantial monetary benefit for Mis Vyas Constructions. The defence of the Minister of State was that he tried to find out a workable solution, and acted on the advice of the officers of his department. As we have seen from the notings and as observed by the Division Bench that initially the Minister of State was also of the view that Section 37 of the MRTP Act should be followed. In this connection, it is relevant to note that after receiving the letter dated 17.4.1996 from the Municipal Commissioner, the UDO department prepared its note in which it specifically recommended that only half the area of the concerned plot be released to the landowner, and that he should accommodate the tenants in his development of the property on that portion of land, and an action under Section 37 be taken for that purpose. Thus, the departmental note was in fact as per the initial stand taken by the Minister of State, yet strangely enough, he declined to approve the note. He contended in his affidavit before the High Court that he was persuaded to accept the suggestion to act under the D.C. Rule 13.5 under which a similar action had been taken in Kothrud, Pune. No particulars of that Kothrud precedent were however, placed befor~ the Court.

120Copy pinpoint120. The Minister of State also tried to contend that until the last he had no knowledge of Shri Murudkar's connection with the son-in-law of Chief Minister. In view of the facts which have emerged on the record, it was just not possible to accept this contention. The Division Bench has given its reasons for H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 905 & ORS. [H.L. GOKHALE, J.] the same and has commented on his conduct as follows at the A end of paragraph 140:-

"....... It is difficult to account for the anxiety of the Minister of State, UDO, to find out some solution to either reduce the area of reservation or shift it to a new place. Only tenable explanation is that it was a design to ensure 8 that the representation made by Murudkar on November 20, 1995 was allowed. It is not being suggested by any one that respondent No.6 was personally interested in the proposal or that he had any particular interest in seeing that this proposal was sanctioned. We, therefore, have to fall back on the inference that respondent No.6 was under pressure from respondent No.5."

121Copy pinpoint121. In this behalf it is relevant to 'note the conduct of the Minister of State from stage to ~tage. o I (i) Firstly, he entertained the application of Shri Karandikar directly at his own level, and thereafter immediately called a meeting of high ranking officers to take a decision thereon. Would such other applications receive such a E direct and expeditious attention?

(ii) Secondly, he directed the Municipal Commissioner, a very high ranking officer, to carry out a personal inspection and to make a report. Would he issue such directions in the case of other similar applications? F

(iii) Thirdly, after the Commissioner's report, the UDO department supported the initial view of the Minister of State that only a part of F.P.No. 110 be released, and that too under Section 37. Why did he not approve that note? G

(iv) He acted as if he was waiting for the Commissioner to state that two schools had come up in the adjoining plots, so that he can release F. P. No. 110 from the reservation for a Primary school. Did he not realise that H

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

A those schools had come up as per the Development plan itself?

(v) He relied upon an alleged precedent of release of the land at Kothrud under D.C. Rule 13.5 without having the particulars thereof on record. B (vi) He tried to put the blame on the Municipal C:>mmissioner and the Municipal Officers for the decision a Tived at. It is true that the Commissioner failed in his ::!uties to place full facts on record. At the same time the c fact that the Minister of State ignored the initial notes of his own department and of PMC, which were in accordance with law, and went on acting and instructing as per the ~uggestions of Shri Karandikar, which led to the convenient reports cannot be lost sight of. He acted clearly against the provisions of law though he was fully informed about the same. Would he have acted in such a manner on any other similar application?

(vii) Would he not b~ aware that the file was called by the Chief Minister after receiving the report from the Municipal E Commissioner, and for what purpose?

The natural inference which flows from all this conduct is that right from the beginning, the Mir1ster of State was aware about Shri Murudkar's connec .on with the son-in- F law of Chief Minister, and therefore hf.: acted for the benefit of the developer, obviously at the instance of the then Chief Minister as inferred by the Division Bench. We have no reason to disagree.

G Observations against the Chief Minister

122Copy pinpoint122. (i) The two Writ Petitions contain serious allegations against the then Chief Minister at various places. Thus in paragraph 2 of the Writ Petition 4433 of 1998, it is alleged that the then Chief Minister misused his executive powers and H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 907 & ORS. [H.L. GOKHALE, J.] authority for the purpose of securing benefits for his near A relatives, and in- paragraph 3 it is specifically stated that this was for ensuring a substantial monetary benefit for M/s Vyas Constructions.'A specific averment in paragraph 2 in this behalf is as follows:- B "It is the claim of the petitioner that on account of this close relationship, the executive powers vested in the State of Maharashtra have either been misused and/or actions which cannot be taken in exercise of the executive powers under the Act are presumably take in purported exercise C of such executive powers with a full knowledge that the actions are illegal and ultra vires the provisions of the Act."

(ii) As we have noted earlier, on 24.4.1996 the initial report made by the Municipal Commissioner dated 17.4.1996 was called for the perusal of the then Chief Minister. The D basic order dated 21.8.1996 granting no objection, thereby approval to the release of the reservation on F.P. No. 110 was that of the then Chief Minister. The disputed · permission dated 3.9.1996 was issued in pursuance thereto. There is a note dated 22. 7 .1998 on record which E was meant for the perusal of the then Chief Minister to enable him to answer the probable questions concerning this matter in the assembly. The last order proposed at the Government level was also brought to his notice, and he was going to sign it, but for the advice of the Additional F Chief Secretary that since his son-in-law had written a letter by that time to the Commissioner, the papers be sent for the signature of the Minister of State. Thus it is quite clear that he was aware about the developments in the matter, and the orders therein were issued with his approval and G knowledge. He cannot therefore, escape the responsibility for all the illegal actions in this matter.

(iii) The learned senior counsel for the then Chief Minister Shri Shyam Diwan objected to the language used in H

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A paragraphs 111 and 131 of the judgment which accused him of "pettifogging or obfuscation of facts". It is stated in the judgment that the then Chief Minister "furtively" sought a copy of the report dated 17.4.1996 on the basis of the file note dated 24.4.1996 prepared by his private secretary B to the Minister of State for Urban Development calling for the file for the then Chief Minister's perusal. It was submitted that there was no need for the then Chief Minister to act secretively. In our view, there is no use in taking umbrage behind the language used by the Court. c The question is whether the inference that the Chief Minister had called for the file for his perusal can be disputed. A private secretary will not make such a note unless the file is required by the Chief Minister. In our view the inference was fully justified. It was also sought to be contended that the petitions were politically motivated and one of the petitioners did not have clean antecedents. We are concerned in the present case with respect to serious allegations against the then Chief Minister misusing his , office for the benefit of his son-in-law and in that process destroying a public amenity in the nature of a primary school. Such submissions cannot take away the seriousness of the charge, and the Chief Minister must squarely explain and justify his actions.

123Copy pinpoint123. (i) With respect to the Chief Minister calling the file for his perusal, the Division Bench has posed a question as to whether it was an idle curiosity. "Why were the Chief Minister and the Minister of State interested in one particular case? What momentous public policy decision was sought to be taken in this matter?" Shri Murudkar was not someone for whom the administration could have moved so fast. It was very clear that the Chief Minister was very much interested in knowing the progress of the case all throughout. The obvious inference was that the then Chief Minister and the Minister of State took keen interest in the matter only because Shri Murudkar had appointed the son-in-law of the Chief Minister as his developer.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 909 & ORS. [H.L. GOKHALE, J.] . (ii) The Division Bench has dealt with the affidavit of the then Chief Minister, some of the relevant events in this behalf and then held that the conduct of the then Chief Minister definitely leads to the conclusion that he was very much interested in knowing the progress of the case pertaining to F.P. No.110, and he wanted to apprise himself of report dated 17.4.1996 made by the Commissioner of PMC. Therefore, the Division Bench held at the end of para 131 as follows:-

"We are afraid, unless the Court is na'ive and its credulousness is stretched to the extreme, the inference has to be that, not only was there an attempt on the part of respondent No.5 to 'concern' himself with the file even prior to August 1996, but also that respondent No.5 had taken an active interest in the case." D

124Copy pinpoint124. (i) Then we come to the merits of the disputed permission dated 3.9.1996 which was in pursuance to the order of the Chief Minister dated 21.8.1996 viz. "All actions be taken in accordance with law. No objection". It was sought to be contended on his behalf that he had clearly stated that all actions E be taken in accordance with law. But we cannot ignore that he had simultaneously stated in his remarks of approval, "no objection" to the note containing the proposal which had been put up before him, and which was not in accordance with law. The note clearly stated that the reservation on the land at F Lohegaon be shifted from agricultural zone to residential zone by following the procedure under Section 37 of the MRTP Act. But as far as shifting of reservation from F.P. No. 110 was concerned, a different yardstick, namely that of D.C. Rule 13.5 was applied for which there was no explanation whatsoever. Thus he gave no objection to an illegal proposal as proposed G in the note, and directed that all actions be taken in accordance with law which will only mean that the proposal be somehow fitted in four corners of law.

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

A (ii) The letter dated 17.4.1996 from the Municipal Commissioner had already been forwarded for his perusal. This report had clearly stated to begin with that the departmental permission had been rejected because the property was under reservation. The report of the 8 Municipal Commissioner also stated that in case the change was proposed in the use of the property, permission had t.J be taken from the Pune Municipal Corporation. Could not the Chief Minister understand that D.C. Rule 13.5 could not be applied to F.P. No.110 in the manner in which it was suggested? Could he not c understand that the permission of Municipal Corporation was required as per the law? In the teeth of these legal provisions he gave no objection to the proposal to shift the reservation of F.P. No. 110 under D.C. Rule 13.5, and to shift the reservation of the plot at Lohegaon under D.C. D Rule 37. In between there is a noting of 22.7.1998 which recorded that the Chief Minister had to be briefed about this matter appropriately for him to answer the questions in the legislative assembly. The note has also recorded that there was a criticism about this matter in the local newspaper. Subsequently, thereafter when the land at Mundhwa or elsewhere was sought to be exchanged in place of Lohegaon, the letter of Shri Girish Vyas was already on the file of the PMC and the Government. Still he was going to sign note of approval but for the advice of the Additional Chief Secretary. This shows the keen interest of the then Chief Minister in the matter and it can certainly be inferred that he was so acting for the benefit of his son-in-law.

125Copy pinpoint125. According to Shri Naphade, the learned counsel appearing for the developer, the inference of ma/a tides is misconceived, as it is contrary to the material on record. He submitted that the Municipal Commissioner's report dated 17.4.1996 was not found to be untrue or false by any authority. H He emphasized that as per the report (i) There are about 36

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 911 & ORS. [H.L. GOKHALE, J.] structures on the land which are occupied by tenants; (ii) Half A the area of the plot is encumbered; (iii) There are two educational institutions in the vicinity of the plot and 11 educational institutions in the area; (iv) The acquisition of the plot has been declared illegal by the Court; (v) The locality in question is inhabited by higher middle class people and there B may not be an appropriate response to a Primary School; (vi) Considering the funds available the Pune Municipal Corporation is inclined to develop school on some other plot reserved for school. He defended the decision of the then State Government and the actions taken in our :uance thereof by c submitting that (i) There is no detriment to Public Interest, as no Municipal Primary School was required in the locality. (ii) The Appellant made alternative plot available at his own cost in the locality where a Municipal Primary School was required. (iii) The developer paid a sum of Rs. 25 lakhs to the PMC for 0 construction of Municipal Primary School wherever it wanted to put it up. (iv) Tenants occupying dilapidated structures were rehabilitated on the very plot and were to get the ownership right free of cost.

126Copy pinpoint126. These arguments are based on an erroneous premise that the plot was reserved for a Municipal Primary school. It was reserved for a Primary school and not merely a Municipal Primary school. It is on this false premise that the Commissioner had opined that this being a higher middle class area, a Municipal Primary school may not get an appropriate response. The two adjoining plots were also reserved for Primary schools as per the D.P. plan, and thereon two private schools had already come up. That cannot be a ground to say that this plot be released from reservation. The Municipal Commissioner had failed to place on record a very material information that one renowned educational institution had sought this very plot for educational activities way back in 1986. The Municipal Commissioner had not specified as to what he meant by the particular area when he stated that eleven . educational institutions had come up therein. The plot had been H

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

A reserved for a Primary school after an elaborate planning - process wherein the requirements of the particular area are appropriately considered. This is not the first case where there would be three adjoining plots reserved for Primary schools. There are many such schools and educational complexes which B always require adjoining plots and are developed accordingly. The submission that the acquisition had been declared illegal by the Court was also a very convenient submission ignoring that the Municipal Appeal therefrom was pending in the High Court. There was no reason for the Corporation to be deterred c by the encumbrances on the plot, since the compensation therefor had already been arrived at as per the law, and it did not cast much burder:i on the Corporation. The report of the Municipal Commissioner was clearly made "to please the bosses" as observed by the Division Bench, and could not be accepted as the basis for a valid legal action. The acceptance of the offer of the developer would mean that whenever anybody wants to delete a reservation of a public amenity in a prime area, he can throw the money to the Municipal Corporation and say that let the amenity come up elsewhere, but the reservation be deleted. Such an approach will mean destruction of the entire planning process and deserves to be rejected. None of these arguments can whitewash the material on the record which clearly leads to the inference, that the impugned actions were motivated to benefit the son-in-law of then Chief Minister.

127Copy pinpoint127. (i) The learned counsel for the then Chief Minister objected to the inference drawn by the Division Bench that the then Chief Minister had pressurized the officers into taking an illegal action. It was submitted that the notings on the file indicated that there were deliberations on issues involved in the matter at the government level on a number of occasions. The course of action suggested in the PMC note dated 26.7.1996 was approved at several levels of authority before the same coming to the then Chief Minister. The Deputy Secretary in the UDD Shri Vidyadhar Despande has also stated in his affidavit that there was no pressure from the office of the Chief Minister

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 913 & ORS. [H.L. GOKHALE, J.] or for himself. That apart there were cogent factors explaining why there was no need for yet another primary school in the locality and generally the thinking was that public interest would gain from the proposed course of action.

(ii) As far as this latter submission about there being no need of one more primary school, one may immediately 8 note the scant respect that the then Chief Minister had for the cause of education and the method of planning. One fails to see as to what public interest was going to be achieved by preventing a primary school from coming up on a designated plot. There is no use stating that instead ·C a primary school will come up in another area. It will of course come up in that area if it is so required. But there is no need to tinker with a school in another area, provided by a proper planning process. D (iii) We have already noted the manner in which the matter had been handled. The application of the developer was entertained directly at the level of the Minister of State. lmmediateiy a meeting of high ranking officers was called. lnspite of a clear stand taken by the offices of UDO as well as by PMC, the Minister of State asked the Commissioner, a high ranking officer to make a personal site inspection and then a report, only because the developer submitted that two schools had come up on the adjoining plots. Was it not clear to the Minister of State that those two schools had come up as per the provisions of the D.P. pian? The Municipal Commissioner in his report, and thereafter the officers of the UDO, initially submitted that if deletion of reservation was to be resorted, the action will have to be initiated under Section 37 of the Act. It is only because of the insistence of the developer that the resort to D.C. Rule 13.5 was adopted. During the course of all these developments the file had been called by the Secretary to the Chief Minister. Were these not clear signals to the officers as to what was the interest of the H

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

A then Chief Minister? There will never be any direct evidence of the officers being pressurized, nor will they say that they were so pressurized. Ultimately one has to draw the inference from the course of events, the manner in which the officers have acted and changed their stand to B suit the developer and the fact that the son-in-law of the then Chief Minister was the developer of the project. As we have noted earlier the affidavit of the Commissioner clearly indicated that he tried to place the correct legal position initially but ultimately had to give in from the pressure from the superiors. Unless one is narve one will c have to agree with the conclusion which the Division Bench had drawn in para 136 of its judgment to the following effect:-

"We are left with only one conclusion which we have D to draw from the facts on record and, to quote the words of the petitioners, "the conduct of respondent No.5 itself indicates that he had 'pressurized' the officials into taking an illegaJ action" and this, in our Jiew, is certainly misuse of executive powers." E

128Copy pinpoint128. The learned senior counsel who had appeared for the then Chief Minister in the High Court had relied upon amongst others on the judgment of this Court in E.P. Royappa vs. State of Tamil Nadu [Al R 1974 SC 555]. Krishna Iyer J. had observed in paragraph 92 of his judgment in that matter that "we must not also overlook that the burden of establishing ma/a fides is very heavy on the person who alleges it. The allegations of ma/a fides are often more easily made than proved, and the very seriousness of such allegations demands proof of a high order of credibility." Shri Royappa, while challenging his transfer had made allegations of ma/a fides against the then Chief Minister of Tamil Nadu, and this Court had refused to accept those allegations. The Division Bench noted in the presently impunged judgment that Shri Royappa was a Chief Secretary, and hardly any Chief Secretary of a State Government was H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 915 & ORS. [H.L. GOKHALE, J.] known who would be in any way hamstrung, or stopped from A getting information or documents on the basis of which he makes out the case of ma/a fides against the officer holding a public office. The Division Bench rightly observed at the end of para 129 as follows:- 8 "We do agree with Mr. Salve that a finding of mala fides against public authority, that too of the rank of Chief Minister of the State, should not be lightly drawn. It is quite a serious matter. But, if the Court is required to draw such an inference after examining the record, we feel that the Court cannot flinch from its duty." C

129Copy pinpoint129. In one earlier case i.e Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi [1987 (1) SCC 227], a single Judge of the Bombay High Court had held that in the facts of that case it could be reasonably held that the marksheet of the D M.D. Examination was tampered to benefit the daughter of Shri Shivajirao, the then Chief Minister of Maharashtra. The Division Bench of the Bombay High Court took the view that the circumstances relied on clearly formed a reasonable and cogent basis for the adverse comments on the conduct of Shri Shivaji E Rao, The Division Bench had noted that the single Judge had followed the tests led down by this Court earlier in State of UP. Vs. Mohammad Nairn [AIR 1964 SC 703] which were as follows:-

"10 ....... (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, an in integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderatio!l and reserve."

Having approved the approach of the High Court this Court H. I

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

A held in the facts of Shri Shivajirao's Case as follows:-

"50. There is no question in this case of giving any clear chit to the appellant in the first appeal before us. It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest. It is true that there is no B direct evidence. It is also true that there is no evidence to link him up with tampering. Tampering is established. The relationship is established. The reluctance to face a public enquiry is also apparent. Apparently Shri Patil, though holding a public office does not believe that "Ceaser's wife c must be above suspicion ..... "

130Copy pinpoint130. The facts of the present case are stronger than those in the case of Shri Shivajirao Nilangekar (supra). Here also a relationship is established. The basic order dated 21.8.1996 o in this matter granting no objection to an illegal action is signed by the then Chief Minister himself. That was after personally calling for the file containing the report dated 17.4.1996 sent by the Municipal Commissioner muc'.1 earlier. The entire narration shows that the then Chief Minister had clear knowledge about this particular file all throughout, and the orders were issued only because the developer was his son- in-law, and he wanted to favour him. Ultimately, one has to draw the inference on the basis of probabilities. The test is not one of being proved guilty beyond reasonable doubt, but one of preponderance of probabilities.

Appropriate actions taken in a Public Interest Litigation

131Copy pinpoint131. It was contended before the High Court that the rule as to the construction of pleadings should be strictly applied in the present case and that the material as contained in the petitions did not justify any further probe. The High Court rightly rejected that argument. There was a sufficient foundation in the petition for the further steps to be taken by the High Court. The petitions before the High Court were in the nature of public interest litigation. The purpose in such matters is to draw the

GIRISH WAS & ANR. v. STATE OF MAHARASHTRA 917 & ORS. [H.L. GOKHALE, J.] attention of the High Court to a particular state of facts, and if the Government action is found to be contrary to law or affecting the rights of the citizen, the court is required to intervene. There was a specific plea in paragraph 10 of Writ Petition No. 4433 of 1998 to the effect that "the fundamental and legal right of the citizens of Pune of submitting objections and suggestions to any modification in the Final Development Plan u/s 37 of the act has been infringed", and that was solely on account of the developer being a close relation of the then Chief Minister who was also the Minister for Urban Development which controls the appointments of a Municipal Commissioner to a Corporation C established under the B.P.M.C Act 1949. A prima facie case had been made up in the petitions which got supported when the High Court in exercise of its Writ J_urisdiction rightly called for the relevant files from the State Government and the PMC to explain and defend their decisions. D

132Copy pinpoint132. Public Interest Litigation is not in the nature of adversarial litigation, but it is a challenge and an opportunity to the government and its officers to make basic human rights meaningful as observed by this Court in paragraph 9 of Bandhua Mukti Morcha Vs. Union of India [AIR 1984 SC 802]. E By its very nature the PIL is inquisitorial in character. Access to justice being a Fundamental Right and citizen's participatory role in the democratic process itself being a constitutional value, accessing the Court will not be readily discouraged. Consequently, when the cause or issue, relates to matters of good governance in the Constitutional sense, and there are no particular individuals or class of persons who can be said to be injured persons, groups of persons who may be drawn from different walks of life, may be granted standing for canvassing the PIL. A Civil Court acts only when the dispute is of a civil nature, and the action is adversarial. The Civil Court is bound by its rules of procedure. As against that the position of a Writ Court when called upon to act in protection of the rights of the citizens can be stated to be distinct. H

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

133Copy pinpoint133. It was submitted on behalf of the appellants that inference should not be drawn merely on the basis of the notings in the file, and the remarks made by the Division Bench ought to be expunged. In this connection we may profitably refer to the observations pfthis Court in P.K. Dave Vs. Peoples' Union B of Civil Liberties (Delhi) & Ors. reported in 1996 (4) SCC 262. A Writ Petition by way of a PIL was filed before the Delhi High Court alleging commission of gross financial irregularities by the Director of Govt. Hospitals in Delhi. Notings in the office file produced by the Government showed that despite suggestions made by the Health Secretary and Chief Secretary to the Delhi Administration, Lt. Governor of the Administration had refused to take any action against the Director. The High Court had passed strictures against the Lt. Governor. The learned senior counsel Shri Venugopal appe~ring on behalf of the appellant Lt. Governor had submitted that the strictures based on the basis of the notings should be expunged. Rejecting the submission this Court observed in paragraph 8 as follows:-

"8 ...... Where the relevant departmental files were produced before the court by the Government and the court on scrutiny of the same came to the conclusion that the decision has not been taken fairly, then the court would be entitled to comment on the role of such person who took the decision ..... In such circumstances if the contention of F Mr. Venugopal is accepted then no administrative authority and his conduct would come under the judicial scrutiny of the court. That an administrative order is subjected to judicial review is by now the settled position and no longer remains res integra. This being the position we fail to G appreciate the contentions of Mr. Venugopal that the notings in the file or the orders passed by the Secretary and Chief Secretary as well as the Governor should not have formed the basis of the strictures passed against the appellant." H

-GIKl~H VYAS & ANR. v. STATE OF MAHARASHTRA 919 & ORS. [H.L. GOKHALE, J.)

134Copy pinpoint134. Reliance was placed on the judgment of this Court A 1 Jasbir Singh Chhabra Vs. State of Punjab reported in 201 O --4) sec 192 to submit that the issues and policy matters which . .re required to be decided by the Government are dealt with ->y several functionaries, some of whom may record notings on mhe files, and such notings recorded in the files cannot be made B lasis for a finding of ma/a tides. There can be no dispute with -he preposition when policy matters are involved as in that case o\/here the question was whether the State Government's refusal ---:O sanction change of land use from industrial to residential was -titiated due to ma/a tides claimed to be arising out of such c """flotings. In the present case we are concerned with the notings -not concerning with any policy matter, but with respect to the -application on behalf of an individual landowner to delete the -reservation of a primary school on his land, where the developer -is the son-in-law of the Chief Minister. The notings in the 0 present case are quite clear and the inference of ma/a fides therefrom is inescapable.

135Copy pinpoint135. We have noted tt:Je observations and the conclusions arrived at by the High Court with respect to the conduct of the then Municipal Commissioner, the Minister of State and the then E Chief Minister. The High Court has drawn its inferences and made the remarks after following the· dicta in State of U.P. Vs. Mohd. Nairn (supra). Having seen the totality of facts and guidelines laid down by this Court in P.K. Dave's case (supra), we do not see that we can draw any other inference then the one which was drawn by the Division Bench. We will be failing in our duty if we do not draw the inference which clearly arises from the notings on the file, the affidavits filed by the persons concerned and the law with respect to drawing such inference. In the circumstances, we refuse to expunge any of these remarks rendered by the Division Bench.

Orders for Criminal Investigation

136Copy pinpoint136. Having drawn the above inferences, and having made H

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A the adverse remarks about the conduct of the then Chief Minister, Minister of State and Municipal Commissioner the impugned judgment has directed the State of Maharashtra to initiate appropriate investigation against them through an impartial agency, and if satisfied that any criminal offence has been committed to take such action as warranted in law.

137Copy pinpoint137. Now, as far as this direction is concerned, we have to note that as far as the Municipal Commissioner is concerned, though the Division Bench did not approve his conduct and squarely criticized him for being more loyal to the king then the king himself, yet in terms it observed in paragraph 144 of the judgment, that it did not attributive any motive to him for his actions. This para reads as follows:-

"144. While we may not attribute any motive to respondent No.10 for his actions, we cannot approve of the actions taken by him. We have already pointed out that the action of withdrawing the appeal was wrong. In our view, respondent No.10 would have served the interests of the PMC better if he had placed his dilemma before the E PMC and sought a resolution thereof, particularly when he believed that the Government was issuing him instructions contrary to law, which he believed to exist. But, perhaps, this might not have been clear to him at the time when he acted to please his masters. While holding that the actions F taken by the tenth respondent were contrary to the provisions of the BPMC Act, MRTP Act and Development Control Rule No.13.5, we find it difficult to accept the suggestion in the writ petitions that he was a willing party to the process of abuse of executive powers."

G That apart, Shri Narsimha, learned senior counsel appearing for the Municipal Commissioner drew our attention to Section 147 of the MRTP Act which provides that no suit, prosecution or other legal proceedings shall lie against any person for anything which is in good faith done or entitled to H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 921 & ORS. [H.L. GOKHALE, J.] be done under this Act or any rules or regulations made therein. A Reliance was also placed on Section 486 of the B.P.M.C. Act 1949 which is also to the similar effect. The Division Bench has also clearly stated that it did not accept the suggestion in the writ petitions that the Commissioner was willingly a party to the process of abuse of executive powers. This being the position, B in our view it would not be correct to direct any criminal investigation against the then Municipal Commissioner, and in our view to that extent the order of the Division Bench requires to be corrected.

138Copy pinpoint138. As far as the Minister of State is concerned also, the C Division Bench commented adversely on his conduct in paragraph 140 of its judgment. Yet it also observed in paragraph 142 that there was nothing on record as suggested that he had any personal motive in the matter. The relevant observation at the end of paragraph 142 reads as follows:- D

"....... All that we can say is that there is nothing on record to suggest that he had any other personal motive in the matter. We, therefore, infer that respondent No.6 must have done it to oblige his senior colleague i.e. the then Chief Minister, respondent No.5."

The Division Bench has thus specifically inferred that whatever he has done, was done to oblige his senior Minister i.e. the then Chief Minister and he had no personal motive in the matter. In the circumstances, he is entitled to a benefit of doubt and, therefore, the direction for criminal investigation against him also can not be sustained.

139Copy pinpoint139. As far as the Chief Minister is concerned, however, it is very clear that he was fully aware about the application made by Shri Karandikar who was a camouflage for his son- i n-law. He had called for the file after the Municipal Commissioner sent his report in April, 1996. But for his personal interest, the Government and the Municipal officers would not have taken the stand and put up the notes that he H

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A wanted to be on record. The shifting of the reservation from F.P. No.110 was clearly untenable under D.C. Rule 13.5. The by- passing of the Municipal Corporation and ignoring the mandate of Section 37 was also not expected, yet he gave "no objection" to a contrary and totally unjustified order. The earlier part of his B order viz. "all action be taken in accordance with law" therefore becomes meaningless, and is nothing but a camouflage. The conduct on the part of the then Chief Minister prima-facie amounts to a misfeasance and Shri Wasudev, learned senior counsel appearing for the original petitioners submits that such c a conduct ought to be sternly dealt with.

140Copy pinpoint140. The learned counsel for the Chief Minister on the other hand pointed out that there were no prayers for prosecution in the Writ Petitions, and the direction contained in paragraph 227 (e) was beyond the prayers. The question therefore, is whether the operative order passed by the High Court in this behalf is legally tenable. The direction given by the High Court in paragraph 227 (e) is as follows:-

"(e) As far as prayer for directing prosecution against Respondent Nos. 5, 6 and 10 is concerned, after considering the facts and circumstances of the case we are not inclined to grant this relief ....... Nonetheless, we direct the first respondent to make appropriate investigations through an impartial agency and, if satisfied that any criminal offences have been committed by the aforesaid respondents in the discharge of their duties, to take action as is warranted in law."

Respondent Nos. 5, 6 and 10 were the then Chief Minister, the then Minister of State and the then Municipal Commissioner. G

141Copy pinpoint141. In this context we have to take note of the judgment of a bench of three Judges of this Court in this behalf on a review petition in the case of Common Cause, A Registered Society Vs. Union of India & Ors. reported in 1999 (6) SCC

H 667. The Minister concerned in that matter had committed the

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 923 & ORS. [H.L. GOKHALE, J.] misfeasance of allotment of retail outlets of petroleum products A out of the discretionary quota in an arbitrary and ma/a fide manner. Such allotments had been set aside by a bench of two Judges by its judgment between the same parties reported in 1996 (6) SCC 530. The Court had thereafter passed an order that the Minister concerned shall show cause within two weeks s why a direction be not issued to the appropriate police authority to register a case and initiate prosecution against him for criminal breach of trust of any other offence under law. This Court held in paragraph 174 of its judgment on the review petition as follows:- c "174. The other direction, namely, the direction to CBI to investigate "any other offence" is wholly erroneous and cannot be sustained. Obviously, direction for investigation can be given only if any offence is, prima facie, found to have been committed or a person's involvement is prima D facie established, but a direction to CBI to investigate whether any person has committed an offence or not cannot be legally given. Such a direction would be contrary to the concept and philosophy of "LIFE" and "LIBERTY" ~ guaranteed to a person under Article 21 of the Constitution. E This direction is in complete negation of various decisions of this Court in which the concept of "LIFE" has been explained in a manner which has infused "LIFE" into the letters of Article 21." F

142Copy pinpoint142. It could be perhaps argued that the misfeasance on the part of the then Chief Minister and the Minister of State amounts to a criminal misconduct also under Section 13 (1) (d) of the Prevention of Corruption Act, 1988. In the present case however, there is neither any such reference to this section nor G any prima facie finding in the impugned judgment rendered way back in March· 1999. In the circumstances in view of the proposition of law enunciated by a larger bench in the above case it is difficult to sustain the direction to make appropriate investigations through an impartial agency, and if satisfied that H

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

A any criminal offence has been committed by the aforesaid respondents in the discharge of their duties, to take action as is warranted in law.

Epilogue

B Approach Towards the Planning Process

143Copy pinpoint143. The significance of planning in a developing country cannot be understated. After years of foreign rule when we became independent, leaders of free India realized that for c advancement of our society and for an orderly progress, we had to make a planned effort. Intact, even prior to independence the leaders of the freedom struggle had applied their mind to this aspect. The leaders of Indian Freedom Movement and particularly Pandit Jawaharlal Nehru, our first Prime Minister D always emphasised democratic planning as a method of nation building and economic and social upliftment of Indian society. In March, 1931, the Indian National Congress at its Karachi Session passed a resolution to the effect that the State shall take steps to secure that ownership and control of the material resources of the community are so distributed as best to subserve the common good. Pandit Nehru drafted this resolution in consultation with Gandhiji and described it as a very short step in a socialist direction. In 1938, the National Planning Committee of the Congress was set up under the Chairmanship of Pandit Nehru who has been aptly described as "the Architect of democratic planning in India". The Economic Programme Committee of the Congress under his Chairmanship made a recommendation of setting up a permanent Planning Commission in 1947-48.

144Copy pinpoint144. Shri H.K. Paranjape, (1924-1993) an eminent Economist and a former Member of Monopolies and Restrictive Trade Practices Commission and former Chairman of Railway Tariff Committee, in his monograph "Jawaharlal Nehru and the Planning Commission" (published by Indian Institute of Public H Administration in September, 1964) notes that Nehru linked up

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 925 & ORS. [H.L. GOKHALE, J.] the work of Planning Commission directly to the Fundamental A Rights and the Directive Principles enunciated in the Constitution. Nehru always wanted to make sure that the objectives of the Planning Commission were well defined and well understood. In this article, the author further records as follows:- B "When the National Development Council was discussing the Draft Outline of the Third Plan in September, 1960, he emphasized the importance of remembering "what our objectives were and not to lose ourselves in the forest of details that a Plan had to deal with. Because, C always when one considered the detail, one must look back on the main thing, how far it fitted in with the main issue; otherwise, it was out of place".

Nehru believed in participation of different sections of society in framing of the Plan. The emphasis has always been amongst others to put land to the best use from the point of the requirements of our society, since land is a scarce resource · and it has to be used for the optimum benefit of the society

145Copy pinpoint145. As stated above, we adopted the model of democratic planning which involves the participation of the citizens, planners, administrators, Municipal bodies and the . Government as is also seen throughout the MRTP Act. Thus when it comes to the Development Plan for a city, at the initial stage itself there is the consideration of the present and future requirements of the city. Suggestions and objections of the citizens are invited with respect to the proposed plan, and then the planners apply their mind to arrive at the plan which is prepared after a scientific study, and which will be implemented duri!"g the next 10 to 20 years as laid down under Section 38 G of the MRTP Act. The plan is prepared after going through the entire gamut under Sections 21 to 30 of the Act, and then only the sanction is obtained thereto from the State Government. That is why the powers to modify the provisions of the plan are restricted as noted earlier. If the plan is to be tinkered for the H

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

A benefit of the interested persons, or for those who can approach the persons in authority, then there is no use in having a planned development. Therefore, Section 37 which permits the minor modifications provides that even that should not result into changing the character of the development plan, prior 8 whereto also a notice in the gazette is required to be issued to invite suggestions and objections. Where the modification is of a substantial nature, then the procedure under Section 29 of the Act requiring a notice in the local newspapers inviting objections and suggestions from the citizens is to be resorted to. Even the deletion of reservation under Section 50 is at the instance of the appropriate authority only when it does not want the land for the designated purpose.

146Copy pinpoint146. The idea is that once the plan is formulated, one has to implement it as it is, and it is only in the rarest of the rare cases that you can depart therefrom. There is no exclusive power given to the State Government, or to the planning authority, or to the Chief Minister to bring about any modification, deletion or de-reservation, and certainly not by a resort to any of the D.C. Rules. All these constituents of the planning process have to follow the mandate under Section 37 or 22A as the case may be if any modification becomes necessary. That is why this Court observed in paragraph 45 of Chairman, Indore Vikas Prodhikaran Vs. Pure Industrial Coke & Chemicals Ltd. & Ors. reported in 2007 (8) SCC 705 as follows:- . F "45. Town and country planning involving land development of the cities which are sought to be achieved through the process of land use, zoning plan and regulating building activities must receive due attention of all concerned. We are furthermore not oblivious of the fact G that such planning involving highly complex cities depends upon scientific research, study and experience and, thus, deserves due reverence.

(emphasis supplied) H

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 927 & ORS. [H.L. GOKHALE; J.] Role of Municipalities A

147Copy pinpoint147. The municipalities which are the planning authorities for the purpose of bringing about the orderly development in the municipal areas, are given a place of pride in this entire process. They are expected to render wide ranging functions 8 which are now enumerated in the constitution. They are now given a status under Part IX A of the Constitution introduced by the 74th Amendment w.e.f. 1.6.1993. Article 243W lays down the powers of the Municipalities to perform the functions which are listed in the Twelfth Schedule. For performing these functions, planning becomes very important. This Twelfth C Schedule contains the following items:-

"TWELFTH SCHEDULE

[Article 243W] D

1. Urban planning including town planning.

2. Regulation of land-use and construction of buildings. E

3. Planning for economic and social development.

4. Roads and bridges.

5. Water supply for domestic, industrial and, commercial purposes. F

6. Public health, sanitation conservancy and solid waste management.

7. Fire services. G

8. Urban forestry, protection of the environment and promotion ofecological aspects.

9. Safeguarding the interests of weaker sections of society, including the handicapped and mentally H

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

A retarded.

10. Slum improvement and upgradation.

11. Urban poverty alleviation.

B 12. Provision of urban amenities and facilities such as parks, gardens.playgrounds.

13. Promotion of cultural, educational and aesthetic aspects. c .

14. Burials and burial grounds; cremations, cremation grounds andelectric crematoriums.

15. Cattle ponds; prevention of cruelty to animals.

16. Vital statistics including registration of births and deaths.

17. Public amenities including street lighting, parking lots, bus stopsand public conveniences.

E 18. Regulation of slaughter houses and tanneries."

The primary powers of the Municipal Corporations in Maharashtra such as PMC (excluding some Municipal Corporations which have their separate enactments) and of the Standing Committees of the Corporations are enumerated in the BPMC Act. Coupled with those powers, the Municipal Corporations have their powers under MRTP Act. These are the statutory powers, and they cannot be bypassed.

The Responsibility of the Municipal Commissioner and the Senior Government Officers

148Copy pinpoint148. The Municipal Commissioner is the Chief Executive of the Municipal Corporation. It is his responsibility to act in accordance with these laws and to protect the interest of the H Corporation. The Commissioner is expected to place the

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 929 & ORS. [H.L. GOKHALE, J.] complete and correct facts before the Government when any such occasion arises, and stand by the correct legal position. That is what is expected of the senior administrative officers like him. That is why they are given appropriate protection under the law. In this behalf, it is worthwhile to refer to the speech of Sardar Vallabhbhai Patel, the first Home Minister of independent India, made during the Constituent Assembly Debates, where he spoke about the need of the senior secretaries giving their honest opinions which may not be to the liking of the Minister. While speaking about the safeguards for the Members of Indian Civil Service (now Indian C Administrative Service), he said-

"... To-day, my Secretary can write a note opposed to my views. I have given that freedom to all my Secretaries. I have told them 'if you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary.' I will never be displeased over a frank expression of opinion. That is what the Britishers were doing with the Britishers. We are now sharing the responsibility. You have agreed to share responsibility. Many of them with whom I have worked, I have no hesitation in saying that they are patriotic, as loyal and as sincere as myself."

(Ref: Constituent Assembly Debates. Vol.1 O p. 50)

Now unfortunately, we have a situation where the senior officers are changing their position looking to the way the wind is blowing.

Expectations from the Political Execuw.;~ G

149Copy pinpoint149. Same are the expectations from the political executive viz. that it must be above board, and must act in accordance with the law and not in furtherance of the interest of a relative. However, as the time has passed, these expectations are belied. That is why in the case of Shri H

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

A Shivajirao Nilangekar (supra) this Court had to lament in paragraph 51 of the judgment as follows:-

"51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in B this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out, the courts should not and cannot remain mute and dumb." c

150Copy pinpoint150. People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for public amenities from the preying hands of the builders. What will happen, if the protectors themselves become poachers? Their decisions and conduct must be above board. Institutional F trust is of utmost importance. In the case of Bangalore Medical Trust (supra) this court observed in paragraph 45 of its judgment that "the directions of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules". Same is the case in the present matter where Shri Manohar Joshi, the then Chief Minister and Shri Ravindra Mane, the Minister of State have failed in this test, and in discharge of their duties. Nay, they have let down the people of the city and the state, and the children.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 931 & ORS. [H.L. GOKHALE, J.] Importance of the spaces for public amenities A

151Copy pinpoint151. As we have seen, the MRTP Act gives a place of prominence to the spaces meant for public amenities. An appropriately planned city requires good roads, parks, playgrounds, markets, primary and secondary schools, clinics, dispensaries and hospitals and sewerage facilities amongst other public amenities which are essential for a good civic life. If all the spaces in the cities are covered only by the construction for residential houses, the cities will become concrete jungles which is what they have started becoming. That is how there is need to protect the spaces meant for public amenities which cannot be sacrificed for the greed of a few landowners and builders to make more money on the ground of creating large number of houses. The MRTP Act does give importance to the spaces reserved for public amenities, and makes the deletion thereof difficult after the planning process is gone through, and the plan is finalized. Similar are the provisions in different State Acts. Yet, as we have seen from the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical Trust (supra) and Lucknow (M.I Builders Pvt. Ltd. (supra), and now as is seen in this case in Pune, the spaces for the public amenities are under a systematic attack and are shrinking all over the cities in India, only for the benefit of the landowners and the builders. Time has therefore come to take a serious stock of the situation. Undoubtedly, the competing interest of the landowner is also to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for a public purpose after following the due process of law, the interest of the individual must yield to the public interest. G

152Copy pinpoint152. As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities. We have seen the definition of substantial modification, and when the reservation for a public amenity on a plot of land is sought to be deleted H

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

A completely, it would surely be a case of substantial modification, and not a minor modification. In that case what is required is to follow the procedure under Section 29 of the Act, to publish a notice in local newspapers also, inviting objections and suggestions within sixty days. The Government 8 and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated, the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to only in the rarest of rare C case, and after fully examining as to why the concerned plot was originally reserved for a public amenity, and as to how its deletion is necessary. Otherwise it will mean that we are paying no respect to the efforts put in by the original planners who have drafted the plan, as per the requirements of the city, and which plan has been finalized after following the detailed procedures 0 as laid down by the law.

Suggested safeguards for the future

153Copy pinpoint153. Having noted as to what has happened in the present i:: '- matter, in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in tune with the spirit behind.

(i) Therefore, when the gazette notification is published, and the public notice in the local newspapers is published under Section 29 (or under Section 37) it must briefly set out the reasons as to why the particular modification is being proposed. Since Section 29 provides for publishing a notice in the 'local newspapers', we adopt the methodology of Section 6 (2) of the L.A. Act, and expect that the notice shall be published atleast in two daily newspapers circulating in the locality, out of which atleast one shall be in the regional language. We expect the notice to be published in the newspapers with wide circulation and at prominent place therein.

GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 933 & ORS. [H.L. GOKHALE, J.] (ii) Section 29 lays down that after receiving the suggestions and objections, the· procedure as prescribed in Section 28 is to be followed. Sub-section (3) of Section 28 provides for holding an inquiry thereafter wherein the opportunity of being heard is to be afforded by the Planning Committee (of the Planning Authority) to such persons who have filed their objections and made suggestions. The Planning Committee, therefore, shall hold a public inquiry for all such persons to get an opportunity of making their submission, and then only the Planning Committee should make its report to the Planning C Authority.

(iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, in as much as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the , - project, in the public notice contemplated under Section 29, in as much as these public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethma/ani Vs. State of Maharashtra reported in [2005 (11) SCC 222]. F

Primary Education

154Copy pinpoint154. Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act 1947. Again, to state the reality, G even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the Constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall H

934 SUf>REME COURT REPORTS [2011] 12 S.C.R.

A endeavour to provide, within the period of ten years from the commencement of the e;onstitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendment to the Constitution effected in the year 2002 deleted this Article B 45, and substituted it with new Article 45 which lays down that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. The amendment has made Right to Education a F.undamental Right under Article 21A. This Article lays down that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner . as the State may, by law, determine. In the year 2009 we passed the Right of Children to Free and Compulsory Education Act 2009. All these laws have however not been implemented with the spirit with which they ought to have been. We have several national initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary Education Programme, and the Universal Elementary Education Programme to name a few. However, the statistical data shows that we are still far away from achieving the goal of full literacy. E

155Copy pinpoint155. Nobel laureate Shri Amartya Sen commented on our tardy progress in the field of basic education in his Article 'The Urgency of Basic Education' in the seminar "Right to Education-Actions Now" held at New Delhi on 19.12.2007 as F follows:-