Bombay High Court
Smt. Hansa Dattatraya Moodaliar & ... vs The Pune Municipal Corporation & Others on 22 July, 1997
Equivalent citations: 1998(2)BOMCR647, 1998(3)MHLJ10, 1997 A I H C 4050, (1998) 3 MAH LJ 10, (1998) 1 MAHLR 648, (1997) 4 ALLMR 481 (BOM), 1997 BOM LR 99 527, (1998) 2 BOM CR 647
Author: A.P. Shah
Bench: A.P. Shah, B.B. Vagyani
ORDER A.P. Shah, J.
1. By this petition under Articles 226/227 of the Constitution the petitioners seek to challenge the order dated 13th March, 1984 passed by She Municipal Commissioner of Pune Municipal Corporation and the Planning Authority (hereinafter referred to as the "Planning Authority") under section 51 of the Maharashtra Regional and Town Planning Act, 1966 ("Act" for short) whereby the Planning Authority has revoked the permission granted to the petitioners for building construction vide commencement certificate No. 85 dated 30th April, 1982.
2. The facts and circumstances giving rise to the present petition are as under:
The petitioner Nos. 1 to 3 are the owners of the property bearing City Survey No. 590, situate at Rasta Peth, Pune and the petitioner Nos. 4 and 5 are the persons with whom the petitioner Nos. 1 to 3 have entered into agreement for development of the property under the agreement dated 23rd January, 1982. The development plan for Pune was approved on 16th August, 1966 by the State of Maharashtra which has been operative during the material time. Under section 458 of the Bombay Provincial Municipal Corporation Act, 1949 the building rules and-bye-laws were framed by the Municipal Corporation for the purpose of development of lands possessing gaonthan tenure. There is no dispute that the petitioners' (and being a gaonthan tenure, as per the existing building rules there was no restriction on F.S.I. available on the land. The restriction was only to the height of the structure.
3. On 3rd March, 1982 the petitioners submitted building plans to the Municipal Corporation in accordance with the relevant building rules applicable to gaonthan land. Initially, the Municipal Corporation vide its letter dated 23rd March, 1982 refused permission to the petitioners by raising certain objections against grant of permission. The petitioners thereafter submitted corrected plans on 10th April, 1982 by making necessary amendments in view of the objections raised by the Municipal Corporation. The re-submitted plans were approved and permission was granted to the petitioners to develop their property vide commencement certificate No. 85 dated 30th April, 1982 in terms of which permission the petitioners were entitled to construct a building on their property with built-up area of 50085 sq. ft., height permitted 70 feet and F.S.I. 4.42. It seems that since the existing building on the property was occupied by tenants, the petitioners sought permission from the Municipal Corporation to submit a phase-wise plan which got approval from the Municipal Corporation on 3rd September, 1982, On 20th December, 1982 the petitioners submitted to the Municipal Corporation plans for the construction of second phase of the building. Accordingly, permission was granted by the Corporation on 4th January, 1983.
4. At this stage it is required to take note of certain events which took place after the building plans of the petitioners were sanctioned and which finally led to the revocation of the petitioners' building permission under section 51 of the Act. As indicated earlier the development plan sanctioned by the State Government came into force on 15th August, 1966. Under the provisions of the Act, a fresh development plan is required to be prepared at least once in ten years. The Planning Authority had on 15th March, 1976 made a declaration under section 38 of the Act of its intention to prepare a revised development plan. On 25th August, 1981 the State Government issued a directive under section 154 of the Act to the Planning Authority to prepare the draft plan. Further directive was also issued on 27th August, 1981 with some minor modifications to the earlier directive. The requisite resolution was passed by the Municipal Corporation on 3rd June, 1982 which was published in the official gazette on 10th June, 1982. Thereafter on 18th September. 1982 a draft revised development plan was published under section 26 of the Act. Clause 2.43-A thereof defines 'gaonthan' in a manner different than the meaning given to it under Rule 2(5) of the Building Ruies and Bye-laws, in as much as 'Inamt or 'Khalsa' lands are no longer treated as on par with gaonthan lands. A new concept of F.S.I, has been recognised under the revised development plan. In terms of the same even gaonthan lands cannot have a F.S.I. of more than 2.00
5. On 24th February, 1983 the Planning Authority issued notice under section 51 of the Act to the architects of the petitioners as to why the building permission should not be revoked. According to the petitioners, the notice was nol received by them as it was sent to a wrong address. A fresh notice dated 2nd March, 1983 under section 51 was issued by the Planning Authority to the petitioners and was served on the petitioners on 7th March, 1983. It is the case of the petitioners that at that stage they had consumed F.S.I. of about 2.8 out of the total F.S.I. of 4.42.
6. The petitioners by their letter dated 10th March, 1983 recorded their objections to the show cause notice. The petitioners were given personal hearing by the Planning Authority on 4th April, 1983. It is the case of the petitioners that at the time of hearing it was pointed out by them that the construction had substantially progressed by the time the petitioners received the notice under section 51 and, therefore, the proceedings are liable to be dropped. It is also the case of the petitioners that they had suggested several alternatives to the Planning Authority during the hearing. One such suggestion was that F.S.I. would be reduced by 1300 sq. ft. or so. It is the case of the petitioners that during the hearing the Planning Authority clearly indicated to the petitioners that their permission will not be revoked provided they submit no compensation letter for giving up 1300 sq. ft. of F.S.I. On 19th April, 1983 the Planning Authority passed the following order on the petitioners' file :
"May not revoke building permission. Put up draft order."
7. In pursuance of the order passed by the Planning Authority, the petitioners duly submitted no compensation letter for F.S.I. of 1300 sq.ft. However, it appears that the Planning Authority subsequently cancelled the order passed on 19th April, 1983. No notice was given to the petitioner before passing the order of cancellation. The Planning Authority merely directed that the petitioners should be called for re-hearing. However, it appears that even notice of hearing was not issued to the petitioners. In the meanwhile, the petitioners proceeded with the construction. On 26th August, 1983, a stop work notice came to be issued by the municipal authorities. The petitioners says that by that time they had already consumed nearly 4 out of the allocated F.S.I. of 4.42. Thereafter, the petitioners were again called for hearing. In their reply, the petitioners pointed out that the construction of the building is almost over. There are 24 tenants who are required to be accommodated in the new building. The rest of the flats and the shops are sold to various other parties. The petitioners pointed out that they would be seriously prejudiced as they proceeded with the construction on the assumption that permission was not going to be revoked.
8. By order dated 13th March, 1984 the Planning Authority quashed the building permission of the petitioner on the following grounds :
(1) The building permission granted to the petitioner was violative of the existing sanctioned development plan read along with the building rules and bye-taws thereunder read with a directive of the Government under section 154 issued on 25th August, 1981 which formed an integral part of the development plan and/or (2) The said building permission was in violation of the draft standardised building bye laws and development control rules published on 10th June, 1982 and/or (3) The said permission was violative of the draft revised development plan published on 18th September, 1982 read with the above said draft standardised building bye-laws and D.C. rules which formed an integral part of the draft development plan.
9. The petitioners sought to challenge the order of the Planning Authority by filing an appeal before the State Government. However, the appeal came to be dismissed on the ground that no such appeal is provided under the provisions of the Act. Thereafter the petitioners have filed the present petition under Articles 226/227.
10: Shri Soni, learned Counsel for the petitioners submitted that on a true and proper construction of section 51 of the Act, the Planning Authority can revoke permission only if it is contrary to the development plan prepared or under preparation. The Planning Authority has no power to revoke the permission if the permission has been granted under the sanctioned development plan. Therefore, the order of the Planning Authority is completely without jurisdiction. In the alternative Shri Soni submitted that the provisions of section 51 of the Act are invalid and ultra vires the Constitution on the ground such as the section confers unbridled and arbitrary powers without laying down any guidelines as regards the expediency and no appeal is provided for against the order of revocation. Shri Soni next submitted that the building plans of the petitioners were sanctioned when the proposals for modification of the F.S.I. admissible to gaonthan land was not even in contemplation. He referred to the directive issued by the Government on 25th August, 1981 in order to show that no change was contemplated in the existing building rules by the Government's directive. He also invited our attention to the Government's reply to Shri RH. Peshave, Chartered Architects, Rune's letter dated 24th September, 1982 addressed to the Chief Secretary seeking clarification with regard to the directive issued by the Government's fetter dated 17th July, 1982 for the purpose of showing that the directive was to apply only to those cases where the building proposals were submitted prior to 17th August, 1982, but for which sanction was given by the Corporation prior to that date. He also referred to Clause 5.2 of the Development Control Rules Proposals for Revised Development Plan published under section 26 of the Act on 18th September, 1982. According to him this clause also exempted cases from application of the amended rules when building permits were granted before codification of the proposed rules except in the circumstances mentioned in the clause. He stated that the petitioners case does not fail within the exceptions provided in the above sub-clause.
11. Shri Soni next submitted that by the time the show cause notice was served on the petitioners the construction had progressed substantially and therefore initiation of proceedings under section 51 was not proper in view o( the proviso to the said section 51. It was also submitted that the Planning Authority had passed an order to drop the proceedings on 19th April, 1983. The Planning Authority had asked the petitioners to submit no compensation letter which was duly submitted on 12th May, 1983. Thereafter the petitioners proceeded with the construction completely unaware of the ex parte revocation of the order dated 19th April, 1983 passed by the Planning Authority. The petitioners were served with the stop-work notice dated 26th August, 1983 when they had nearly completed the building. In these circumstances, Shri Soni argued that the permission granted to the petitioners was not liable to be revoked. He submitted that in similar cases the Planning Authority had allowed the parties to complete the construction with or without modifications. He submitted that the Planning Authority cannot pick and choose in the matter of compromise or regularisation of the building construction. He urged that the action of the Planning Authority is totally illegal and arbitrary and violative of the petitioners' fundamental rights guaranteed under Article 14.
12. In reply, Shri Ketkar submitted that section 51 has been construed by the Division Bench of this Court in Digambar v. Pune Municipal Corporation, wherein it has been held that the Planning Authority has power to revoke permission granted even under the sanctioned development plan. He submitted that by the said judgment the constitutional challenge to section 51 was over-ruled. He submitted that Shri Soni's submissions based upon the Government's letter to Shri Peshave and Clause 5.2 of the Development Control Rules were also advanced before the Division Bench and were rejected. He argued that the Planning Authority was fully justified in revoking the building permission. He argued that when the notice was issued to the petitioners, they had not even consumed 0.50 F.S.I. He relied upon the site inspection report carried by the municipal officers on 3rd February, 1983. As regards the cancellation of the order dated 19th April, 1983, he submitted that the petitioners cannot rely upon the said order as it was only an internal matter and the order was not even communicated to the petitioners. He submitted that as the order was not communicated to the petitioners they cannot rely upon the said order with a view to plead prejudice. He submitted that merely because the party has chosen to proceed with the construction on its own volition, it cannot be said that the case is covered by the proviso to section 51. He therefore contended that no interference is warranted under Articles 226/227.
13. After having heard learned Advocates, the first question which falls for determination is whether under section 51 the Planning Authority has power to revoke permission granted under the sanctioned development plan. In our opinion, the question is squarely covered by the decision of the Division Bench in Digambar v. Pune Municipal Corporation (supra). The Division Bench has held that the expression used in section 51, namely, "Development Plan Prepared" has two facets. It will include the development plan prepared but not yet sanctioned. The second facet is that the development plan is prepared and sanctioned. The general expression used in the section must include both these plans. Therefore, it will take in its import a development plan prepared and sanctioned. The Division Bench also over-ruled the constitutional challenge to section 51. In para 15 of the judgment it was observed that there are several in-built safeguards in the section. Permission already granted can be revoked under section 51 only if it appears to the Planning Authority that it is expedient to do so having regard to the development plan prepared or under preparation. It cannot, therefore, be said that no guidelines are indicated in the section. There is provision for giving an opportunity of being heard to the affected party before the permission already granted can be revoked or modified. There again it is not as if in all cases falling under section 51(1) but not falling under the proviso thereto, the permission granted must be revoked. It can be modified in appropriate cases. Thus the Planning Authority is vested with the discretion. It can revoke or modify the permission depending upon the circumstances of each case. Sub-section (2) on the other hand provides for compensation in cases where the affected party has to suffer loss for no fault of his. In case the affected party is not satisfied with the amount of compensation granted, there is provision for reference of the dispute for the adjudication of the Court. The person authorised to take action under section 51 is no less a person than the senior most officer of the Municipal Corporation i.e., the Municipal Commissioner. Although the Act does not provide for an appeal against the order passed under the section, the remedy by way of writ in such cases is always available and, therefore, it cannot be held that for mere want of right of appeal against an order under section 51, the section is unconstitutional. In view of the pronouncement of law by the Division Bench, the submission that the Planning Authority has no jurisdiction to revoke the permission granted under the sanctioned development plan cannot be accepted.
14. This takes us to the next question namely, whether the permission granted to the petitioners on 30th April, 1982 violates the provisions of the development plan prepared or under preparation". The argument of Shri Soni is that the sanction of the building plans of the petitioners was in accordance with the law prevailing at the relevant time. He has pointed out that when the permission was granted there was no revised development plan in existence. Even the requisite resolution for adopting revised building rules was passed only on 3rd June, 1982 which came to be published in the official gazette on 10th June, 1982. Therefore, the argument is that the building permission cannot be said to be violative of any plan prepared or under preparation. Reliance is placed on the decision of the Supreme Court in S.N. Rao v. State of Maharashtra, . It is true that the building permission was validly granted in accordance with the law existing at that time but it is to be borne in mind that thereafter Draft Revised Development Plan of Pune was admitted published under section 26 of the Act on 18th September, 1982. Under the Revised Development Plan even gaonthan land cannot have F.S.I. of more than 2.00 whereas by virtue of the permission granted on 30th April, 1982 the petitioners were entitled to construct a building the F.S.I. of which would work out to 4.42. It is thus clear that the permission granted in this case is not in conformity with the Revised Development Plan. Consequently, it was open for the Planning Authority to revoke the permission if in its view it was expedient to do, so having regard to the development plan prepared or under preparation.
15. The next question requiring consideration is whether the petitioners' case falls within the exception carved out by the proviso to section 51. In order to appreciate the rival contentions in that behalf it will be useful to refer to provisions of section 51 which reads as follows :
"51. Power to revocation and modification of permission to development.
(1) If it appears to a Planning Authority that it is expedient, having regard to the Development Plan prepared or under preparation that any permission to develop land granted (or deemed to be granted) under this Act or any other law, should be revoked or modified, the Planning Authority may, alter giving the person concerned an opportunity of being heard against such revocation or modification, by order, revoke or modify the permission to such extent as appears to it to be necessary :
Provided that -
(a) where the development relates to the carrying out of any building or other operation, no such order shall affect such of the operations as have been previously carried out; or shall be passed after these operations have substantially progressed or have been completed;
(b) where the development relates to a change of use of land, no such order shall be passed at any time after the change has taken place.
(2) and (3) ..... ....."
16. The proviso to section 51(1) clearly lays down that any order under section 51 shall not affect the operations which has substantially progressed or have been completed. In the present case the notice under section 51 was issued for the first time on 24th February, 1983. There is serious controversy as to whether the notice was served upon the petitioners. Admittedly, a fresh notice was issued on 2nd March, 1983 and it was served on the petitioners on 7th March, 1983. According to the petitioners, by that time they had finished upto 2.8 F.S.I. This claim of the petitioners is contested by the respondents. It is stated by the respondent that as per the measurement taken on 3rd February, 1983, the F.S.I. consumed was only .48 and it is impossible that the construction had reached 2.8 F.S.I. when the notice was received by the petitioners on 7th March, 1983. Be that as it may, there cannot be any dispute that the construction had already started and it progressed considerably by the time the notice was issued. In pursuance of the notice the petitioners appeared before the Planning Authority and made their submissions. It seems that they had offered alternative proposals and one of the proposals was for reduction of F.S.I. by 1300 sq. ft. The petitioners have stated that during the hearing the Planning Authority clearly indicated that permission will not be revoked. This is supported by the endorsement made by the Planning Authority on 19th April, 1983 that the permission should not be revoked. In their affidavit in reply the respondents have not given any explanation as to why the Planning Authority had changed his mind. It is merely stated that the order was not communicated to the petitioners. We see no reason to disbelieve the petitioners' version that the Planning Authority had indicated during the hearing that permission will not be revoked and accordingly the order was passed. In fact the petitioners submitted no compensation letter in respect of 1300 sq. ft. F.S.I, which was agreed to the given up by the petitioners during the hearing. The Planning Authority cancelled its order without any notice to the petitioners on 12th May, 1983. It is an admitted position that this order was not communicated to the petitioners till August, 1983. By the time stop-work notice was served, the petitioners had already completed nearly 80% of the construction. This position appears to have been conceded even by the municipal authorities as it is seen from the record that a report was made by the concerned officer that 3.37 F.S.I. was consumed by the time the stop-work notice was served.
17. We have seen that by the impugned order the Planning Authority directed revocation of the entire building permission. Shri Ketkar was unable to give any explanation as to why the Planning Authority has revoked the entire building permission when, admittedly, F.S.I. 2 is permitted in gaonthan areas. It is pertinent to note that in similar cases the Planning Authority had permitted the parties to complete the construction with or without reduction in F.S.I. The petitioners have submitted a chart showing the names of the concerned parties and the nature of the orders passed by the Planning Authority for regularising the construction. It is clearly seen from the said chart that in number of cases the Planning Authority has allowed the parties to complete the project where the construction was substantially progressed. In some cases only 50% work was completed. In the case of Shri Dadhe Ruikar (2007, Sadashiv Peth), at the time of notice, only 25% work was completed but the party was allowed to complete the construction by deduction of only 2074 F.S.I. In our opinion, the proviso to section 51 has been enacted to take care of such situation. The intention of the Legislature is to ensure that the parties should not suffer where the construction has substantially progressed or completed. It has come on record that the existing tenants are accommodated in the new building and the rest of the tenements are sold to third parties. They have formed a society under the Maharashtra Co-operative Societies Act. The order of revocation will cause serious hardship to the occupants of the building.
18. In the result, the impugned order directing revocation of the petitioners' building permission is quashed and set aside. Rule is made absolute accordingly. No order as to costs.
19. Petitioner allowed.