Bombay High Court
Digambar Sakharm Tambolkar And Anr. vs Pune Municipal Corporation And Ors. on 31 July, 1986
Equivalent citations: AIR1987BOM297, 1987(1)BOMCR43, AIR 1987 BOMBAY 297, (1987) 1 BOM CR 43, ILR 1986 BOM 1529, (1986) ILR BOM 1529, (1987) MAH LJ 419, (1987) MAHLR 379
JUDGMENT Sugla, J.
1. By this petition under Art. 226/ 227 of the constitution of India the petitioners have challenged the order dated 1st July, 1983 passed by the Municipal Commissioner Pune Municipal Corporation and Planning Authority (hereinafter referred toas thePlanning Athtority) under S. 51 of the Maharashtra Regional and Town Planing Act, 1966 where by Planning Authority has revoked thepermision granted to petitioner. No. 1 for building constructed vide commencemetn Certificate No. 285 dated d9 the June 1982 in terms of which the permission was grated topetitioner No. 1 to construce a building onhis plot of land no. CTS 517 with 69 and F. S. I.; 4. 45 petitioner No. 1 is the owner of theplot CTS 517. Sadashiv Peth, Pune and petitioner NO. 2 is the personwith whom the first petitioner has entered into an agreement for development of plot of land under an agreement dated 10thJune 1982. The above agreement was thus entered into by the first petitioner with petitiner No. 2 on the day next tot he day the Commencement Certificate for construction was issued tohim Respondent and respondent NO. 2 4 is the State of Maharshtra. Respondent Nos. 2 and 3 are the officers of Pune Municipal Corporation one of whm i. e Mr. A. Bongirwas is not only the municipal Commissioner but also the Plai\ning Authority under the Maharashtra regional and town Planning Act.
2. Briefly stated the relevant facts are that the development plan for Pune was approved on 16 the August 1966 by the State of Maharashtra, which has been operative durng thematerialperiod. The first petitioner won is the owner of plot CTS No.517 Sadashiv Petn, Pune made anapplication for sanction tohis proposed plan of building construction of he Municipal Authority No 13 the January 1982. Commerncement Certificate being No. 285 was issued tohim to 9 the June, 1982,. As stated earlier on 10the June 1982, petitioner NO. 1 entered into anagreement with the second petitioner for the development of the said for land. No 20the October 1982 the Plaing Authority issued a notice under s. 51 of the M. r. T. P. Act requiring the first petitiner to show cause why the permission grated tohim for building construciton on 9the June e1982 shule not be revoked and thereafter passed an order on 4th Novermber 1982 under s. 51 of the M. R. R. T,P. Act revoking permission granted topetitioner No. 1 on 9th June 1982. The petitioner challenged the said petition was with drawn on 25 the February 1983 in view of the statement of the respondents withdrawing the said order of revocation Soom thereafter the Plaing Authority issued a fresh notice under S. 51 the m. R. T. P. Act on 15 the March 1983 requiring the first petitioner to show cause why the permission toconstruct a building on plot should not be revoked as the permission granted violated.
Existing sanctioned development plan read with bye laws and directive dated 25-8-1981:
The standardised bye law and development control rules published on 10-6-1982. And.
Draft revised development plan published on 18-9-1982.
The reply of the petitioner is dated 5the May. 1983 The petitioners were also heard the impugned orde under S. 51 of the M. R. T. P. Acthas been passed by the planning authority on 1st july, 1983 revoking the permisiwon The Planning Authority has held that the commencement certificate issued to the petitioners violates.
The exsiting sanctioned development Plan read with the Building Rules and Bye laws there under read with thedirective of government under S. 154 issued 25-6-1981 whichfrom andintergral part of the develpmetn plan.
the Draft Standardised Building bye lawa and Development control rules Published on 10-6-1982 and.
the Draft Standardish Building bye laws and Development Plan Published on 18-9-1982 readwith the aforsaid Draft Standardised Building by laws and ...............intertrat part of the Draft Developmetn Plan. After observing that the violation of even anyone of the above grounds is sufficient for the exercise of thepowers under S. 51 of the M. r. T. P. Act, the Planning Authority has further held that the case of the petitioners does not fall within theexception contemplated under S. 51 of the M. R. T. P.
3. Shri Tulzapurkar the learned Counsel for the petitioners and Advocates General for the respondents have advanted detailed arguments in support of their rival contentions andhave also relied ona mumber of authorities. The contentions raised on behalf of the petitioners broadyly are M. R. T. P. Act itself recognises the distinction between the development plan prepared but not sanctioned and development planunder prepartion. It also makes distinction between mineo modifications of a final development plan not changing tocharcter of such a plan and the revision of the development plan. On a true andproper construction of s.51 of the M.R. T.P. Act,the Planing Authority can revoke permissioin if ti is contrary to the development paln preparted or under preparation. The Planing Authority has no powe torevoke the permission if the permission has been granted underthe sactioned development plan. According to the learned counsel. If S. 51 of the M. R. T. P. Act is construed tocover a case of "Sanctioned development plan ", the words "sanctioned development plan" will have tobe read into the section which in neither necessary nor permissible. The support inthis regard has been taken from the privy Council Decision reported in the Case of Shrimate Renula Bose v. Manmatha Nath, Air 1945 PC 108 at p. 110. Relying on the obsercations made by the Supreme Court in the case of S. Narayanaswami V. G. Panneselvan report in , it is urged that grammatical meaning requires tobe give to the expression used namely development plan prepared and the development plan under preparted in S. 51 of the M. R. T. P. Act, 1966. It was stated that there willbeto finality or sancity to the sanctioned development plain if the planning Authority is complaed torevoke thepermission granted under a sanctioned developmetn plan also. Althernaticely Shri Tulzapurkar pointed out that the Planning Authority has rovoked thepermission mainly on th gruond that the land for which the permission was granted is not a 'gaothan' tenure. The coming to this conclusion. The Plannin Authority has considered irrelevant evidence ignored materal evidence andhas not applied its mind at all. The finding given by him, it thus vitiated and the order of thePlanning Authority under S.s 51 of the M. R. T. P. Act must therefore fall Assuming thepetitioner land was not a gaothan tenure as such it being surrounded by gaothanland s ti will have tobe treated as gaothanlands it willhave tobe treated as gaothan land Inthis context is wassubmit that the expression surrounded by was not the same thing as bounded by.
4.As regards the direction issued by the government on 25th August, 1981 andfurther directive issued on 27 the August 1918 Shri Tulzapurkar invited our attention on s. 154 of he M. R. T. P. Act toshow that the state Government is empowered to issue directions or instructions for a limited purpose I, e. efficient adminstration of the M. R. T. P. Act.The State Governement canot direct the Plannnin Authority by means of directins of instrctions undr s. 154 of he M. R. T.P. Act to suspend or ignore the provisions of R. 2 (5) of the Building Bye-law of the Pune Municipal Corporation or for that matter any other rule wholly or partly. Assuming that the State Government was competent to issue direction under S. 154 of the M. R. T. P. Act tosuspend or ignore the privisioner of r. 2 (5) of the Buildings Bye- Laws of the Pune Municipal Corporation or for that matter any other Rule wholly or partly Assuming that the State Government was competnet to issue directions under S. 154 of the M. R. T. P. Act for suspending or ignoring th eproviisons of R. 2 (5) of the Building Bye-law of the Pune Municipal Corporation it cannot be ignored that he State Governement issued another directive on 27th August , 1981 in Inviting out attention to the fact tat S. 2 (7) of Building Bye-law at page 63 provides that even agricultural lands surrounded by gaothan lands are to be treated like gaothan lands, the Planning Authority, it is stated, has not applied its mind to this aspect of the matter and the reply given by the respondents intheaffidavit is to says the least vague. Shri tulzapukar unen attention to the Governement's...... Architects. Pune's letter dated 24th September, 1982 addressed to the Chief secretary seeking clarification withregard tot thedirective issued by the Government letter NO. TPS - 1982/3275/UD7, dated, 17th July. 1982 for the purpose of showing that the directive was toapply only to those cease where by building proposals were submitted prior to 17th August 1982 but for which to saction wasgiven by the Corporation prior tothat dage. He also referred to Cl. 5. 2. Of the Development Control rules Proposed for Application in Pune Municipal Corporation Area For revised Development Planof Pune 1982 published under s. 26 of the M. R. T. P. Act on 8th September 1982 According to him, this clause also exempted cases form application of the amended rules where building permits were granted before codification of the proposed rules except in the circumstances mentioned in the Clause. It is stated that the petitioners case does not fall within the exceptions provided in the above sub-clause.
5. Shri Tulzapurkar submitted that he provisionw of S.s 51 of the M R. T. P. Act are invalid and ultra vires the constitution on the grounds such as the section conferes unbriddled and arbitary power without laying down any guidenlies as regards expendiency, and no appeal is also provided for against the over of revocation.
6. Assuming that the Planning Authority could consider the petitioners caseunder ground Nos. 11 and III, his order would be invalid unless he had acted in good faith and reasonably. In order to show that thePlanning permission Shri Tulzapukar pointed out that in the first wh cause notice issued on 20th October, 1982 reference to ground Nos. 11 and III was not made all where as in the second show cause notice dated 15th march, 1983 these grounds were specifically taken up. Inviting thenour attention to the fact that there are a number of buildings in the vicinity with a height of 70 or even more Shri tulxapurkar submitted that it cannot be accepted that it was expedient torevoke the permission granted to the petitioners for contructing abuilding of the height of 69, Bharatiya Vidya Peeth, it was stated was permitted to construct a 10 storey building Anticipating thearguments of the repondents the Bharatiya Vidya Peeth was a public charitable building constructed by Bharatiya Vidya Peeth was a commercial complext. NO good reasons having been given as towhy it was expedient in the case of the petitioners andnot inother cases to revoke the permission the order passed by the Planning Authority revoking the permission already granted requires tobe held as bad inlaw.
7.Inviting our attention to tha fact thet the Counsel for the petitioners that conveniently omitted togive a particular dated in the list of the dates supplied to the court. which is very important for deciding the case, Shri Sawant the learned Advocate General appearing for the respondents development is 10 years. The first Development Plan for Pune was sactional in the year 1966., The State Governement made a declearation of tis intention toprepara a further Development Planby publising notice tothis effect in terms of Ss. 23 and 38 of t he M.R. T. P.Act on 15th May 1976 The requistite resolution was passed by the Municipal Corporation on 3rd June, 1982 and published in the Gazetter on 10th June 1982. Inviting the our attention to theprovisions of S. 46 of the M. r. T. P. Act, the submitted that when permisiosn was granted to the petitioners on 9th June 1982, the Planning Authority was object totake into account not only the draft or the final plan but also the proposals inconncection therewith. In support he heavily relied on the decision of he Division Bench of this Court int hecase of Life Insureacne Corpn of India v. Municpla Corpn. Of Greater Bombay dated 6th march 1984, inWrir Petn No. 2944 of 1982 for the proposition that the permision granted by the plaining Authority of 9on June was bad even ontheday it was granted.
8. As regards the scope of directives tobe issued by the State Government under S, 154 of the M. R, T. P. Act, the learned Advocate General relied on another decision of this Court in thecase of S. P. Seth v. Municipal Corpn of Greter Bombay dated 28th and 29th Janurary. 1980 in Misc Petn No. 1134 of 1976 to show that the state governement directives need not be limited to the general policy matters. In apporpriate cases the directive can be specific. According to the learned Advocte- General, S. 51 is constitutionally valid as the section contains all the indicia of a valid piece of legislation. Alternatively the submission is that the Courts have to assume constitutional validity of the provisions and the burden is on the pary whichurges unconstitution validy of the provisions and the burden is on the party which urges unconstitutionality toprove that the provisions are really unconstitutional.
9. It is stated that though the expression sanctioned Development Plan is absent in S, 51 of the M. R. T. P. Act, the same is implied if Ss. 22, 23, 28, 29, 32, 37, 38,etc. of the M. R. T. P. Act are read along with the definition of expression development and development plan in S. 2 (7) and 2(9) of the Act. In appropriate cases such an expression can be red int hesection tomake thesection meaningful. In the context thelearned Advocate- general pointed out that any other constrcution of S.s 51 would mean that permission wrongly granted under the sanctioned plan can over be revoked except in cases falling within themischief of S. 258 of the Bombay Provincial Municipal Corporation Act, 1949 Such a construction he urged be avoided. Last contention in this regard wast hat thepermission granted on 9th June 1982, was valid that same having become bad on account of development planprepared or under preparation at the time theshow cause notice was issued under S. 51 of the Act.
10. As regards the finding of the Planning Authority that the land in dispute i.e. CTS. No. 517 is not a gaonthan land the learned Advocate general stated that being a finding of fact this Court should not disturb it in writ proceedings. ON merits of the finding he took us through the evidence on record in the shape of Revence Surevey Sheets toshow that form the evidence intheshape of Exhibit 'J' at page 84 is not at all clear whether the said sheet pertains to the landindispute insmuch as the plot of land is shown inNarauan Peth and not in Sadeshiv Peth. The Revenue Survey Sheet at page d106 which pertains to land indispute on theother land clearly shows that the tenure of theland id 'Sarkari and not even inami of khaisa. Other revenue Survey Sheets it was stated clearly indicate the tenure as Galothan where the lands are goaothan lands. Taking us through the definition of the expression 'Gaothan in r. 1 (30) of the Building Rules and Bye laws of Pune Municipal Corporation. S. 2(10) of the Maharashtra Land Revenue Code and ss. 22 and 122 of the Maharashtra Land Revenue Code, 1966, it is contendedthat unless the Collector orSurveyor has specifically earmarked that land as gaothan on the basis of sucha vague evidence, Further clause 2, 43A of the Development Control rules Proposed for Application in Pune Municipal Corporation Area for revised Development Plan of Pune, 1982 published under S. 26 the M. R. T. TP. Act on 18th September 1982 makes the position abundantly clear the even Inami andKhalas lands the not to be treated as Gaothan lands under the planunder preparation.
11. Section 51 read with s. 46 of the M. R. T. P. Act in the light of he Division Bench decision of the this court (supra), according to the learned Advocate General makes it clear that the permission was wrongly granted and the Planning Authority was fully justified in revoking such a permission. Letter written by Shri Dalvi a junior officer of the Corporation on 18th November 1983 to an individual cannot alter thelegal position Para. 5. 2. Of the not development rules of 1982, it is stated does not save thepetitioers cases as contended by thelearned Counsel for thepetitioners.
12. In response to a query raised in the course of hearing the learned Advocate Genreal pointedout that the Planning Authority had taken action under S. 51 of the M. R. T. P. Act torevoke that permission granted earlier in a number of cases. In some cases the proceedings had tobe dropped as thecases were found tobe covered by the proviso to. 51 (1) Insome cases the matters come to the High Court and quite a few other cases were setted on some justifiable basis. The allegation that upon when anumber of buildings with highter heights are allowed to come up and/or exist in thvicintity there was no expediency inthis case according to thelearned Advocates General requires to be ignored as unsubstantiated as full facts of those cases are not available and it is not possible to say in the what circumstances thiepermissionswere granted and could not revoked. For the purpose the learned Advocate general again invited our attention to the progisions of s. 51 (1) of the M. R. T.P. Act which prohibited revocation of permision already granted incases coveredby theprovisio thereof.
13. In reply Shri Tulzapurkar pointed out that the proposals contemplated vide Corporation Resolution dated 3rd June 1982 notified on 10th June 1982 are minor modificationa This is clear form the fact that the notifications is issued under s. 37 of the M. R. T. P. Act Besides the minor modifications cannot be taken into account until they have undergone the exercise contemplated in S. 37 of the Act andapproved by the Government. He also invited our attention to the notification dated 17th September 1982 being Exh. A at page 389 of the paper book toshow the that there was no revised development plan unde preparation or prepared until then. By theis notification the State government has appionted theDirector of town Plainning Maharashtra State under S. 162 (1) of the M. R. T. P Act tobe an authority to take action for publication of notice of the development plan under S.s 26 after performing functions under ss. 26 after perfoming funcations under Ss. 28 and 29 of the M. R. T. P. Act etc. and then to submit it under s. 30 (1) of the Act within a period of year form thedate of publication The Development Control Rules under the revised Plan having beenpublished on 18th September 1982, Shri Tulzapurkar stated that thosw rules could not be applied to the permission granted on 9th June 1982, Inany event according to him Clauses, 5. 2. Of the Revised Development Plan saves permission gratned before 18 the September 1982, Further inviting our attention to the fact that the respondents have not found anything wroing with thepetitioners claimthat the land in dispute willhave tobe treates as Goatham landinvies of the provsions of Bye-law. 2 (7) (at page 63 of the Building Rules and Bye laws), the land in dispute it was stated requires to be taken as gaothanland. It is dealt with by the Planning Authority in tis impugned order. On the strength the comments of the learned Aurthor Wade on Adminstrative Law, 5th Edn. At pages 225 and 226 it is urged that the permision fraudulently obtained can always be revoked and therefore there is no justidication in the submission of behalf of the respondent that unless one reads "santioned development plan" in s. 51 of the M. R. T. P. Act themistake committed in granting permision wil perpetuate. The provisions of S. 46 according tohimdid not apply to the proposals not submitted' even if the minoe modificances contemplated under s. 37 of the Act can be treated proposals.
14. Having heard the partis at lengh and after going through materialon record relevant provisions inthevarious statures Rules and Bye-laws and the dicisions relied upon we find that the mainissue inthis petition is whether and towhat extent the order passed by the Planning Aurhority under S. 51 of the M. R. T. P. Act is justified. For this purpose it is desirabld torefer to the provisions of s. 51 of the Act which reads as under:
"51 91) It is appears toa Planning Authority that it is expedient having regard to the Development Planprepared or under preparation that any permission todevelp land grated under this Act or any other law should be revoked or modified the Planning Authority may after giving theperson concerned an opportunity of being heard against such revocation or modification by order revoke or modify and permission to such extent as appears toit to be necessary.
Provided that---
Where that developmetn relates to carrying out of any building or other operation onsuch orde shall affect such of the operations are have been previously carried out or shall be passed after these operations have substantially progressed or have been complated, Where thedevelopmet reates to a change of use of land no such order shall be passed at any time after the changed has taken place.
(2) Where premision is revoked or modified by an order made under sub-sec (1) and any owner claims within the time and in themanner prescribed compensation for the k expenditure incurred incarryint out the development in accordance with such permisison which has been rendered abortive by the revocation or modification the plainning Authorty shall after giving the owner reasonable opportunity of being heard by the town Planning Officer and after considering his report assess and officer subject to the provisions of S. 19 such compensation to the woner asit think fit.
It the owner does not accept the compensation andgives notcie within such times as amy be porescribed of his refusal To accept the Planning Authority shall refer the matter for the adudication of the court and the decision of the Court shallbe final and be binding ontheowner and Planning Authority.
This section comes under Chaptet IV which deals with"Vconrtrol of Development and Use of Land included in Development Plans". There are serveral inbuilt safe guards in the section as is evidents form its plain reading. Permission already granted can be revoked under S. 51 only if it apperas to the Planning Authority that it is expedient todo so having regard toteh Development plan prepared or under preparation. It is therefore, difficult to accept that no guidenlines are indicated on the section. Thee is provision for giving opprtunityof being heard to the affefted party before the permission already granted can be revoked or modified. There again it is not as in all cases falling under S. 51 (1) but not falling under the proviso thereto thepermission granted must be revoked It can be modified in appropriated cases. Thus the Planning Authority is vested with the discretion It can revoke or modify the permision depending uponthe circumstannces of each case. Sub-section (2) on the other hand provides for compensation incases where the affected party has to sufferloss for no fault of it. In the case affected party is not satisfied with the amount of compensation granted thee is provision for reference of the disputes for the adudication of the Court The personauthorised totake action under S. 51 is no less a person than the senior most officer of the Municipal Corporation i. e. Municipal commissioner It is true that the Act does not provide for an appeal against the order passed under this section. Howerver, invies of the fact that the remedy by way of writ in such cases is always avaliable it cannot be held that for mere want of right of appeal against the order under S,.15 thesection is unconstitutional. The section satisfies each andevery test anddown by theSupreme court in its decision onthCase of m/s. Babubhai & Co. V. State of Gujarat . Inthis and the decision inthecase of Prakash Amichand Shah. V. State of Gujarat . It is held that themere absence of a provision for appeal in t he absence of anything more does not make a provision unconstitutional Looked at form any point of View Shri Turzapukae's contention that S. 51 of the Act is constitutionally invalid requires tobe rejected.
15.It the expression "Having regard toe the development plan prepared or under prepartion is tamentomean what has been contended before us by Shri. Tulzapukar it wouldmeen that thepermisison grated can be rovoked ormodified it it violates the development plan prepreed orunder preparationbut not a development plan prepared and sanctioned. Inour vies s. 51 of the Act cannot be red in isolation but will have tobe read together with the other provision of the Act . The expression used in s.s51 viz., "Development plan prepared" has two facets. But not It willinclude a development plan prepared but not yet sanctioned. The second facet is that the development plan is prepared and sactioned. Inout view, the general expression used inth section must include bothe these plans. Therefore, it will alsotake intis import a development plan prepared and ........... not that such an expression is used in S.34 of the Act Therefore, it isnot possible for us toe accept the contention that s. 51 of the Act willnot take in tis import a santioned development plan.
16. coming to the construction part in apperars tous that what canbe revoked or modified under s. 51 is any permission todevelop landgranted under theis /Act or any other law" (underlling by us) In the presernt case the permission was granted tothepetitioners to develop land under s. 45 of the M. R. T. P.Act That apst the expression "permission granted under this Act or nayother law' is wide enough to cover all kinds of permissions granted to develop land. It is thus obvoius that such a permission to develp landcan be revoked or modified provided the vies of the Planning Authority that it is exepdient having regard to the Development plan prepared or under prepration that the permission granted should be revoked or modified is justified.
17. This takes us tohe next question namely whether the permission granted to the petitioner for the construction of the building on CTS No. 517 on 9th June 1982. Assumming for the present it was valid when granted violates theprovision of the "Development Plan prepared orundr preparation' For this purpose it is to be borne in mind that the inmpugned order has beenpassed on 1st july 1983 and the show cause notice was issued on 15 th March, 1983 Development Control Rules Proposed for Application in Pune Municpal Corporation Area For revised Development Plan Of Pune (hereinafter referred toas "Revised Development Plan") were adittebly published under S. 26 of the M. R. T. P. Act on 18th September 1982 Clause 243 A there of defines gaothan in a manner different form the meaning given toit under s.2 (5) of the Building Rules and Bye laws inasmuch as Inami or Khalas lands A new concent of . s. I. has been recogised under the Revised Development Plan. In terms of the same even gaothan lands cannot have a F. S.I. of more than 2. 00 The situation at present is that under ther premission granted on 9th June, 1982, the first petitiner is entitled to construct abuilding the F. S. I. which would which would work out to4. 45 It is thus clear that the permision granted int his case is not in conformity with the Revised Developmetn Plan.
18. Next question requring consideration is whether thevies of the Planning Authority that it is expedient having regard to the Development Plan prepared or under Prepartion that the permisino granted should be revoked or modified is justified, There is not dispute that the petitioners were givenopportunityof being heard before the order was passed and the their case is not saved by the Proviso to sub-sec. (1) of S. 51 of the Act. Howerver under th provision it is not as ti inevery case of permission granted under thesanctionned development plan violating thedevelopment planprepared or under preparation the Planning Authority must take steps under s. 51 He can and wil do soonly it id appears exepdient to him, todo so having regard to the development plan prepared orunder prepartaion whch wil include plansactioned,These two concepts are different. Theoretically it is possible to conceive of a case orcases where the permission was valid at the time it was granted but is not in conformity with thie development plan prepared or under preparation or sactioned and it is ont expedinate toapply theprovisionns of s. 51
19. so far as the instant case is concerned themeaning of gaothan land the materially changed and new F. S. 1. Restrictions have come intoforce with the result the F. S. L. available to the builders will be between s1.50to 2.00 under the New Development Control rules depending uponwhether the land is gaothen or whether it is going to be a purely residential or resideratial cum commercial building against the f. s.L. of 4.45 under the permission granted. The differenct being so much we hold that thecondition for applying s.51 is satisfied subject of couse to the further condition that the Plainnin Authority acted bona fide and reasonably.
20. It as contended by Shri Tulzapurkar the Planning Authority had already made up its mind to revoke the permission granted its order will have tobe set asside invies ofhte decision reported in roberts V. Hopwood 1925 AC 578 9at p. 613 middle of the suiy lat but one para). This contention is based on the fact that in the first show case notice dated 20th October 1982, only ground given was that the permissin granted was contrary to the existing sactioned development plan read with Government dierective dated 25th August 1951 whereas in th eimpugned who cause notice dated 15th March 1983, two more grounds are added. Our attention was invited to the circumstances inwhichthe writ petition being No. 471 of 1983 filed by thepetitioners against the order of revocation dated 4th November 1982 was conceded by the petitinoers against the order of revocations dated 25th February 1983, to our mind from themere fact of the respondents statemen with drawing the order dated 25th february. 1983 and subsequently issuing a fresh show cause notice under s. 51 of the Act on a number of grounds it is not possible to infer that the planning Authority was minted torevoke the permission After all these is nothing wroing in with drawing the order if it is found that the order as passed cannot be sustained and therefore initiating fresh and proper proceedings provided that is justified. Therefore, the moot point requiring consideration is whether on facts and in law the Planning Authority was justified inrevoking the permission on one of these or all these three grounds,
21. that the underlying object of allthes development plans is to see that thetowns develop in an organised way I, e. there is n undue congestion The buildings are provide withsuggicient light an air. Th town does not suffer formwhat to water or efficient seweraesystme and is provided withgood sites for schols hospitals parks, markets etc. does not require anargument. There fore the object tobe acheved by revoking ormidifying the permision granted can be one of these which is found in th revised development Plan published. The main contention of the petitioners had been why should it be expedient torevokde the permission intheir case only particularly whentehre is not even a suggestion that invies of the Revised Development Plan the site is required for road widening or that o\an airport is coming nearby or that the side or part of it is required for public purpose such as playground schools hospitals strong emphais was laid on the fact that at least 14 buiding with the heights varying between 60 to 101' are allowed tocome up in the vicinity, In particular our attention was invited to a ten stroey building constructed by Bharatiya Vidya Peeth where no steps were taken by thke Planning Authority under s. 15 of the Act of revoke the permission. We are afraid that in the absence of full facts indicating circumstances in which the permission was grated in theses cases or it was not revoked or modified under s. 51 it is not possible tosaythat the mere fact of there being order buildings in the vicinity should justify a conclusion that there was no ecpediency totake action unde s. 51 inthat case. It is pertineny to mention that the proviso to S. 51 (1) itself provides that no action under S, 51 (1) will be takenif substantial progree has already beenmade in pursuance of the permission granted Moreover, sofar as Bhartiya Vidya Peeth is concerned the Advocate Generaloninstruction s form this clients stated that the permisison was granted on 8th Aproal 1981 andthat ebing dissatisfired with the permision Bhartiya Vidya peth filed anappeal which wa decided on 23 rd January 1982 in terms of which it was allowed tohave 10 storeys as against Less storeys allowed by the Planning Authority. The matter went up to the Supreme Court and the writ petition was dismissed, Some other cases had come tothis court Thus, on the basis of the information available abut to other cases to say the least it is not possible tocome to the conclusion that thepetitioner have beeb discriminated against.
22, this takes us to the last limp of the contention raised onbehalf of the petitioiners, namely that heland in dispute is or has got tobe traetae as gaothan ternue. The question as to whether a particular land it is fact a gaothan land is obvioualy a question of fact,. It is contention before us tht while deciding the said question various circumstances and documants have not been taken into consideration by the Planning Authority. Certain materialis also producted before us insupport of thecontention that in fact the said land is gaothan land. In our view it will not be fair nor necessary todecide this disputed question of fact in this writ jurisdiction on the basis of the material placed before us. This is more sosince the alternative pleated before us by the petitioners has great substance.
23. the Planning Authority has not considered a relavant andimportant aspect which goes to the root of the matter namely the land in dispurt willstill be treated as gaothan land because of the provisions of r. 2 (7) at page 63 of the Building rules and Bye laws and thefact that it is surrounded by gaothan lands. No satisfactory answer has beengiven tothis allegation in th affidavit filed by the respondents except indicating the boundaries of the land in dispute. Excepte for stating that the plan produced did not for conclusively establish that the land in dispute is surrounded by the gaothan lands, Advocate general has not elaborated his submission in this regard. Thus,it will have tobeheld that the finding of the Planning Authority that the land on disputes is not a gaothanland is vitated onthis ground. The city maps in the paper book, onour vies sufficiently vindicate the petitioner stand. There isnot ven a suggestion that the provisios inthis regard have changed. Accordingly we held that the land in dispute is tobe treated as gaothan land Rationable behind this rule is obvious nemaly that when all the surrounding lands are allowed F. S. I. on the basis of gaothan tenure than not granting the same f. S. I to the land surrounded by these lande will have be learned counsel for the petitinoersthat the expression 'surrounded by" is not the same thing as bounded by. Mere fact that one or two siders for the land in dispute there are public roads it cannot be accepted that the landindispute is not surrounded by the gaothan lands.
24. Having regard to the above discussion our conclusion is that the planning Authority was justifited in taking steps under s. 51 of the M. R. T. P. Act torevoke or modify the permission granted to the petitioners for building construction with commencement Certificate No. 285 dated 9th June 1982 However, the land in dispute willhave to be treated as gaothan land.
25. it is pertinent ot mentioin that as per directives received formt he Government dated 13th January, 1982 and 12 th Aprial 1982. The Pune Municpal Corporation by its general Body resolution dated 3rd June, 1982 proposed Modification to the existing 'Building rules and Bye laws and regulations Controlling Developmetn of land Notice was issued inthis regard on 5th June, 1982 in which it was iter alia stated that a book showing int modification is availble for instpection in the Office of Deputy City Engineer (Building Control) during office hours. Suggesstions as regards modifications of the Building rules and Bye-laws and regulations Controlling Development of land were published by the Pune Muncipal Corporation in the Maharashtra Governement Gaxette of 0th June 1982,. There is no dispute that interms of the modifications suggested the F. S.I. for the buildings tobe construted ongaothanlands was resticted to 1. 5 of rrseidentiual purpose and 2. 00 for comnined residerntal andcommercial purpose. The Planning Authority being the Municipal Commisssioner Pune himself it is difficult toimagine that he did not know about the modifications suggested when he grated permission under s. 45 of th eACt on 9-6-1982 Following the decision of the Division Bench of this Court in the case of Life Insturance Corpn. Of India v. Municipal Corporation of greter Bombay, in Writ Petn. NO. 2944 of 1982 dated 6th March 1984, which is binding uponus we have tohold that the Planning Authority was bound to consider theproposal for modifications suggested by means of resolution dated 3rd June, 1982 for whicha notice was issued on 5th June 1982.
The relevant facts in thecase decided by the Division Bench of this Court in Writ Petn No. 2944 of 1982 of tth March, 1984 are that theapplication todevelop land (building construction ) dated 31st May, 1982 was rejuected by the Planning Authority under s. 45 read with S. 46 of the /Act ontheground theat thesite was earmarked for a public purpose of recreation of ground in the Revised Development Plan. However the application for inspection of the Revised Development Plan was refused on the ground that the Revised Development plan had not till then been published. One of the question involved before the DivisitonBench was whether the Planning Authority was justified in taking intoaccouont the proposals in the Revised Development Plan which was not published and for which inspection was not allowed. After elaborately discussing thelegal position judgmernt It iwas held vide paragraph 37 of the judgement as under;
"Thus under s. 46 not only the publushed plan not allrelevant factors must be taken intocosderation. And the paramound consideration must necessarily be that the development plan is advanced andnot thwarted, To do otherwise would result in the development planand the development procee being set at naught fro private aggrandisement and the nagation of public good."
It is not possoble for us toaccept the contention of Shri Tulzapulkar that the above decision is either per incuriamor should be confined tot he facts oftht case. It our view that will be contraty to thewell established principles of judicial discipline.
26. In the vies we have taken of the provision of S. 46 and s.51 of the Act it is not necessary todeal with the arguments advanced by the parties regarding the validity an impact of the two directive issued by the State Governement on 25th and 27th August 1981. Under S. 154 whether It is necessary for a piece of land ot be a gaothan land that it should be sodescribed in the Revenue survey sheet having regard toR. 1 (30) of the Building Rules and Bye- Laws Ss. 2(1), 22, and 122 of theMaharashtra land Revenue Code, 1966, as also whether the permission gratned before 18th September 1982 is saved interms of Cl. 5. 2 of the Revised Development Plan as clarified by State Governement leter to?Shri Peshave (at page110 of the paper book) No. IPC 1882/4052/UD-7 said to be dated 18th November, 1982 Last question is not decided as we have held following the judgment of he Division Bench of this Court inLife Insuracne of India.s case that the permission granted on 9th June, 1982 itself was not proper,
27. In the result the petition partly scceeds, The impugned order of the Planning Authority is set aside andhe is directed to modify the permission grated on 9th June, 1982 in accordance with the Reviseds Development Plan treating the petitioners land as gaothanland. The rule is made partly absolute, There will be no order as tocosts.
28. Petition party allowed.