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

- **Citation:** [2011] 12 S.C.R. 781
- **Court:** Supreme Court of India
- **Decided:** 2011-10-12
- **Case number:** Civil Appeal No. 198-199 of 2000
- **Bench:** R. V. Raveendran, H.L. Gokhale
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shri-girish-vyas-anr-v-the-state-of-maharashtra-ors-27242
- **Pages:** 160

## Headnote

MAHARASHTRA REGIONAL AND TOWN PLANNING
ACT, 1966:
s. 23 (1) read with s. 38 - Revised Development Plan,
and Development Control Rules, sanctioned - Subsequently,
shifting of reservation of a primary school to a far off place,
under D. C. Rule 13. 5 - Held: If the statute provides for doing
A
B
c
a particular act in a specified manner, it has to be done in
0
that manner alone and not in any other manner -
In the
instant case, the shifting of reservation to a far off place,
though effected under DC Rule 13.5; was in violation of the
said rule and, as such, could not be justified - Once the State
Government published the draft Development Plan reserving
E
the plot for a primary school, any construction contrary thereto
could not be permitted - Development Control Rules - r. 13. 5
s. 39 r/w ss. 59, 46 and 165 - Primacy of Development
Plan over Town Planning Scheme - In Development Plan,
plot reserved for a primary school - Land owner's claim that
F
as per Town Planning Scheme, the plot could be used for
residential purposes -
Held: Subsequent to the
commencement of MRTP Act, as per s. 39 rlw s. 59 thereof,
a TP Scheme will have to be in consonance with the DP Plan
- s. 39, r/w s. 59 do indicate the superiority of DP Plan over
G
TP Scheme -
s. 46 indicates that the moment a draft
Development Plan is proposed, permission for contrary
development can no more be granted - Besides, when the
land-owner issued the purchase notice u/s 49 and led the
781
H
782
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A State Government and the Municipal Corporation to acquire
the plot, such a plea was never raised - Nor had the land
owner taken any step in pursuance of the erstwhile TP Scheme
- Therefore, the right claimed under the erstwhile TP Scheme
cannot be sustained.
B
ss. 50 and 154 - Deletion of reservation - Held: s. 50
provides for deletion of a reservation at the instance of the
authority for whose benefit the reservation is made - In the
instant case, the acquiring body is the Municipal Corporation,
i.e., its general body, which has to be satisfied that the land
C is no longer required for the public purpose for which it is
reserved - The officers of the Planning Authority as well as
of the Government department concerned were not in favour
of deleting the reservation - The application of the landowner
was received directly at the level of the Minister of State and
D it was on latter's direction that the Municipal Commissioner
gave a report which was used by the State Government and
the Chief Minister approved the shifting of the reservation -
The Commissioner's opinfon could not have been treated as
the opinion of the Municipal Corporation, and the State
E Government could not have made any order sanctioning the
deletion of reservation on the basis thereof - s. 154, cannot
save the directions issued by the State Government or the
actions of the Municipal Commissioner in pursuance thereof
ss. 37 and 22A - Development Plan - Modification of -
F Held: The model of democratic planning involves the
participation of the citizens, planners, administrators,
Municipal bodies and the Government - The provisions of the
Act indicate that once the plan is formulated, one has to
implement it as it is, and it is only in the rarest of the rare
G cases that one 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
resort to any of the D. C. Rules - All these constituents of the
H planning process have to follow the mandate u/s. 37 or 22A,
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 783
& ORS.
as the case may be, if any modification becomes necessary.
A
s. 126 - Acquisition of land - Change of purpose during
acquisition - Applicability of Land Acquisition Act - Held:
MRTP Act is a self-contained code and in the scheme of said
Act substantive provisions of L.A. Act are not applicable - In
8
the instant

## Text

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[2011] 12 S.C.R. 781
SHRI GIRISH VYAS & ANR. .
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 198-199 of 2000)
OCTOBER 12, 2011
[R. V. RAVEENDRAN AND H.L. GOKHALE, JJ.]
MAHARASHTRA REGIONAL AND TOWN PLANNING
ACT, 1966:
s. 23 (1) read with s. 38 - Revised Development Plan,
and Development Control Rules, sanctioned - Subsequently,
shifting of reservation of a primary school to a far off place,
under D. C. Rule 13. 5 - Held: If the statute provides for doing
A
B
c
a particular act in a specified manner, it has to be done in
0
that manner alone and not in any other manner -
In the
instant case, the shifting of reservation to a far off place,
though effected under DC Rule 13.5; was in violation of the
said rule and, as such, could not be justified - Once the State
Government published the draft Development Plan reserving
E
the plot for a primary school, any construction contrary thereto
could not be permitted - Development Control Rules - r. 13. 5
s. 39 r/w ss. 59, 46 and 165 - Primacy of Development
Plan over Town Planning Scheme - In Development Plan,
plot reserved for a primary school - Land owner's claim that
F
as per Town Planning Scheme, the plot could be used for
residential purposes -
Held: Subsequent to the
commencement of MRTP Act, as per s. 39 rlw s. 59 thereof,
a TP Scheme will have to be in consonance with the DP Plan
- s. 39, r/w s. 59 do indicate the superiority of DP Plan over
G
TP Scheme -
s. 46 indicates that the moment a draft
Development Plan is proposed, permission for contrary
development can no more be granted - Besides, when the
land-owner issued the purchase notice u/s 49 and led the
781
H
782
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A State Government and the Municipal Corporation to acquire
the plot, such a plea was never raised - Nor had the land
owner taken any step in pursuance of the erstwhile TP Scheme
- Therefore, the right claimed under the erstwhile TP Scheme
cannot be sustained.
B
ss. 50 and 154 - Deletion of reservation - Held: s. 50
provides for deletion of a reservation at the instance of the
authority for whose benefit the reservation is made - In the
instant case, the acquiring body is the Municipal Corporation,
i.e., its general body, which has to be satisfied that the land
C is no longer required for the public purpose for which it is
reserved - The officers of the Planning Authority as well as
of the Government department concerned were not in favour
of deleting the reservation - The application of the landowner
was received directly at the level of the Minister of State and
D it was on latter's direction that the Municipal Commissioner
gave a report which was used by the State Government and
the Chief Minister approved the shifting of the reservation -
The Commissioner's opinfon could not have been treated as
the opinion of the Municipal Corporation, and the State
E Government could not have made any order sanctioning the
deletion of reservation on the basis thereof - s. 154, cannot
save the directions issued by the State Government or the
actions of the Municipal Commissioner in pursuance thereof
ss. 37 and 22A - Development Plan - Modification of -
F Held: The model of democratic planning involves the
participation of the citizens, planners, administrators,
Municipal bodies and the Government - The provisions of the
Act indicate that once the plan is formulated, one has to
implement it as it is, and it is only in the rarest of the rare
G cases that one 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
resort to any of the D. C. Rules - All these constituents of the
H planning process have to follow the mandate u/s. 37 or 22A,
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 783
& ORS.
as the case may be, if any modification becomes necessary.
A
s. 126 - Acquisition of land - Change of purpose during
acquisition - Applicability of Land Acquisition Act - Held:
MRTP Act is a self-contained code and in the scheme of said
Act substantive provisions of L.A. Act are not applicable - In
8
the instant case, the letter of the landowner had led to the
subsequent steps for acquisition - s. 126 (1) (c) specifically
states that when an application is made to the State
Government for acquiring the land under the L.A. Act, the land
vests absolutely with the Planning Authority - Though the civil C
court has held the acquisition for the changed purpose under
the D.P Plan as bad in law, in the scheme of the MRTP Act,
it is not necessary that the original public purpose should
continue to exist till the award was made and possession
taken - In the instant case, the acquisition cannot be said to
be invalid on account of change of purpose during acquisition
D
- Besides, the civil suit itself was not maintainable - The
appeal of the Municipal Corporation has been directed by the
Higb- Court to be revived.
_.
CONSTITUTION OF /NOIA, 1950:
E
F
Article 226 - Writ petitions in public interest alleging
illegal shifting of reservation of a primary school from a plot
and granting permission to develop the plot for private
residences - Held: The development permission is granted
by-passing the objections of the department of the
Government and the Municipal Corporation, and flouting all
relevant provisions of law - The Municipal Corporation was
asked to withdraw the appeal against the judgment holding
that acquisition has lapsed -
This is not a case where
permission was sought for the construction under erstwhile
G
T.P. scheme, or uls. 50 of the MRTP Act - This is a case
where the personal relationship of the developet with the then
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
H
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SUPREME COURT REPORTS
[LU'l'I j 12 S.C.R.
A benefit a close relative of the Chief Minister- It is a clear case
of ma/a fide exercise of powers and, therefore, High Court was
perfectly justified in canceling the development permission
which was granted by the State Government - Consequently,
the construction put up on the basis of such permission had
B to be held to be illegal - Maharashtra Regional and Town
Planning Act, 1966.
Article 226 -Writ petitions - Strictures passed by High
Court - Held: The then Minister of State acted clearly against
C the provisions of law though he was fully informed about the
same - He was aware about the land owner's connection with
the developer and latter's relationship with the then Chief
Minister, and acted for the benefit of the developer at the
instance of the Chief Minister, as has rightly been inferred by
the High Court - The Chief Minister's relationship with the
D developer is established -
The basic order granting no
objection to an illegal action is signed by the Chief Minister
himself - The strictures passed by the High Court against the
then Chief Minister and the then Minister of State are
maintained - However, though the acts of the Municipal
E Commissioner clearly amounted to failure on his part to
discharge his duty correctly, but as he had no personal interest
in the matter and was acting under the directions of his
superior, the remarks against him are deleted.
F
Article 226 - Direction by High Court to initiate criminal
proceedings against the persons responsible - Held: High
Court itself did not attribute any personal motive to the
Municipal Commissioner and the Minister of State -
Therefore, direction for criminal investigation against them
G cannot be sustained - Though the conduct on the part of the
then Chief Minister prima facie amounts to misfeasance, but
as there is no prima facie finding in the judgment rendered
way back in 1999, the direction of the High Court to make
criminal investigations through an impartial agency cannot be
sustained and is set aside.
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 785
& ORS.
Articles 226 and 136 - High Court directing removal of A
illegal construction of residential apartments raised on a plot
reserved for a primary school - Held: The ten storied building
meant for private sale must be· either demolished or put to a
permissible use - The illegal development carried out by the
developer has resulted into a legitimate primary school not B
coming up on the disputed plot of land -
Thousands of
children would have attended the school on this plot during
last 15 years -
The loss suffered by the children and the
cause of education is difficult to assess in terms of money,
and in a way could be considered to be far more than the cost c
of construction of the building - It will, therefore, be open to
the developer to redeem himself by offering the entire building
to the Municipal Corporation for being used as a primary
school or for the earmarked purpose, free of cost - Directions
for taking the necessary steps in this behalf within the
0
stipulated frame, given - As regards the tenants, who belong
to economically weaker section of the society and were
occupiers of the erstwhile plot, Municipal Corporation has no
objection in their continuance in the premises meant for them, · ·
but they shall now continue in the building as tenants of the · E
Municipal Corporation for residential purpose - Public
Interest Litigation.
PUBLIC INTEREST LIT/GA TION:
Locus standi - Writ petition in public interest alleging
illegal shifting of reservation for a primary school - Held:
F
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 - By its very nature the PIL is inquisitorial in
character - Access to justice being a Fundamental Right and G
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 H
786
SUPREME COURT REPORTS
(2011] 12 S.C.R.
A 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 and if the
Government action is found to be contrary to law or affecting
the rights of citizens, the court is required to intervene - In the
B instant case, there was sufficient foundation in the petition for
further steps to be taken by High Court- Constitution of India,
1950 - Article 226.
URBAN DEVELOPMENT:
C
Town Planning - Role of Municipalities, responsibilities
of Municipal Commissioners, other Government Officers and
Political Executives -
Explained -
Public amenities
earmarked in Development Plan - Deletion or modification
of- Safeguards laid down - Maharashtra Regional and Town
D Planning Act, 1966 - Constitution of India, 1950 - Chapter
IX A - Article 243W
A plot of land (FP No. 110) admeasuring 3450 sq.
meters, situate in the prime area of the city and reserved
under the Development Plan, 1966 for public purpose,
E namely, garden/play ground, was, pursuant to the
purchase notice u/s 49 of the MRTP Act, 1966, given by
its owner, notified on 27.8.1981 for acquisition u/s 126 of
the Act read with s. 6 of the Land Acquisition Act, 1894.
In the final Development Plan, 1987, the said plot was
F reserved for a primary school. However, on 21.8.1996 the
then Chief Minister approved the shifting of reservation
on F.P. 110 to another plot. This was given effect to by
the Government in its letter/order dated 3.9.1996 to the
Commissioner of Municipal Corporation. Accordingly,
G Commencement (of construction) Gertificates dated
28.8.1996 and 3.5.1997 and the Occupation Certificate
dated 20.12.1997 were issued in respect of FP No. 110.
Two writ petitions were filed in public interest stating that
F.P. No. 110 was de-reserved and permitted to be
H developed for private residences by flouting all norms
GIRISH WAS & ANR. v. STATE OF MAHARASHTRA 787
& ORS.
and mandatory provisions. The High Court allowed the
A
writ petitions and directed to cancel the Commencement
Certificates and the Occupation Certificate and to remove
the construction raised on the plot. The State Government
was also directed to initiate criminal investigation against
the then Chief Minister, the then Minister of State for
B
Urban Development Department and the then Municipal
Commissioner.
Disposing of the appeals, the Court
HELD:
c
Shifting of reservation under DC Rule 13.5:
1.1. Chapter-Ill of the Maharashtra Regional and Town
Planning Act, 1966 on Development Plans requires the
sanctioned plan to be implemented as it is. There are only
D
two methods by which modifications of the final
Development Plan can be brought about. One is where
the proposal is such that if will not change the character
of the Development Plan, which ·is known as minor
modification [s. 37]. The other is where the modification
E
is of a substantial nature [ss.22-A and 29]. There is also
one more analogous provision, though it is slightly
different: the one, for deletion of the resel'Vation where
the appropriate authority (other than the planning
authority) no longer requires the designated land for the
F
particular public purpose, and seeks deletion of the
reservation thereon [s.50]. [Para 47] [839-D-F]
1.2. In the instant case, the Government's action to
shift the reservation from F.P. No. 110 is under r.13.5 of
Development Control Rules [DC Rule 13.5) and not u/s.
G
37 of the MRTPAct. Under D.C. Rule 13.5, shifting of the
reservation has to be without altering the size of the area
under reservation. Besides, it is permissible only on three
conditions, namely, that (1) it cannot be beyond 200
metres of the original location in the Development Plan,
H
788
SUPREME COURT REPORTS
[2011] 12 S.C.R
A (2) it has to be within the holding of the owner in which
the reservation is located, and (3) the alternative location
ought to have a similar access and land level as the
original location. Obviously the shifting of the reservation
from F.P. No. 110 to a far off place could not be justified
B under D.C. Rule 13.5. If the statute provides for doing a
particular act in a specified manner, it has got to be done
in that manner alone, and not in any other manner.
[para 49 and 58] [839-G; 840-A·D-F; 848-H; 849-A]
C Primacy of Development Plan over Town Planning
Scheme:
2.1. Inasmuch as the action of the State Government
could not be defended under D.C. Rules, 135, the
appellants claimed for the first time before the High Court
D that under the erstwhile Town Planning Scheme, FP 110
could be developed for residential purposes irrespective
of subsequent reservation for a public purpose on the
plot under the Development Plan. It is significant to note
that right from 8.5.1979, when the landowner issued
E purchase notice, and led the State Government and PMC
to acquire the plot of land, this plea was never raised.
[Para 59 and 61) [849-C-D; 850-F]
2.2. Section 39 lays down that the T.P. Scheme is to
F be varied suitably in accordance with the D.P. Plan u/s.
92 of the Act. Thus, s. 39 read with s. 59 do indicate the
approach of legislature, namely, superiority of the D.P.
plan over the T.P. scheme. Subsequent to the
commencement of the MRTP Act, a T.P. Scheme will have
to be in consonance with the D.P. Plan. The Planning
G Authority cannot act contrary to D.P. plan and grant
Development permission to defeat the provision of the
D.P. plan. Once the State Government published the draft
Development Plan on 18.9.1982, providing for the
reservation for a primary school on F.P. 110, any
H construction contrary thereto could not be permitted.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 789
& ORS.
This can only be the interpretation of the provisions
A
contained ins. 39 read with ss. 43 and 165 of the MRTP
Act. [Para 63,64, 66 and 71] [852-H; 853-A; 854-C; 856-A;
855-F; 858-H; 859-A]
Gordhanbhai Vs. The Anand Municipality & Ors. XVI
8
(1975) Gujarat Law Report 558 - held inapplicable
2.3. It is significant to note that the landowner had not
taken any step in pursuance to the erstwhile T.P. scheme
nor had he objected to the changes brought in by the
authorities by following the due process of law. Thus, in
C
view of the provisions of ss. 39, 42 and 46, the scheme
of the Act and the judicial pronouncements, it is clear that
the right claimed under the erstwhile T.P. scheme could
not be sustained in the teeth of the reservation for a
Primary school under the 1987 D.P. plan. Merely because o
under the erstwhile Town Planning scheme residential
use was permissible, it cannot be supposed to be saved
u/s. 165 (2) of the MRTP Act. Besides, independent of
one's right either under the D.P. Plan or the T.P. Scheme,
one ought to have a permission for development granted
E
by the planning authority traceable to an appropriate
provision of law. In the instant case there is none. [Para
78 and 84] [865-F; 871-8-E]
Reserve Bank of India Vs. Peerless Corpn. 1987 (2)
SCR 1 =AIR 1987 SC 1023=1987 (1) sec 424; Raju S.
Jethmalani Vs. State of Maharashtra 2005 Suppl. (1)
SCR 1 = 2005 (11) SCC 222 - held inapplicable .
F
Rusy Kapadia v. State of Maharashtra 1998 (2) ALL MR
181; and lndirabai Bhalchandra Bhajekar Vs. The Pune
G
Municipal Corporation and Ors., 2009 (111) Born LR 4251 -
referred to
2.4. It is also material to note that though subsequent
to the Government orders, Commencement Certificates
H
790
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A were issued, there was no order specifically setting aside
the earlier order of the City Engineer of PMC passed u/s.
45 of the MRTP Act rejecting the building permission by
his letter/order dated 6.11.1995. There is no such specific
mention of reversal of the order dated 6.11.1995 even in
8 the order of the State Government dated 3.9.1996. [Para
80] [866-H; 867-A-B]
2.5. Section 50 provides for deletion of a reservation
at the instance of an appropriate authority (other than the
planning authority) for whose benefit the reservation is
C made. In the instant case, the acquiring body is PMC, and
it will mean the general body of PMC. Assuming that the
section applies in the instance case, the general body
has to be satisfied that the land is no longer required for
the public purpose for which it is designed or reserved.
D It is on the direction of the Minister of State that the
Municipal Commissioner has given a report which has
been used by the State Government to pass an order of
shifting the reservation from F.P. No.110. The officers of
the Planning Authority as well as of the Government
E department concerned were not in favour of deleting the
reservation. The Commissioner's opinion could not have
been treated as the opinion of PMC. The State
Government could not have made any such order
sanctioning the deletion of reservation on the basis of
F the report of the Municipal Commissioner. [Para 81] [868E-H; 869-A·B]
2.6. The provisions of law cannot be disregarded and
ignored merely because what was done, was being done
at the instance of the State Government. Section 154,
G which provides for directions or instructions to be given
by the State Government for efficient administration of
the Act, cannot save the directions issued by the State
Government or the actions of the Municipal
Commissioner in pursuance thereof. [Para 82] [870-B-D]
H
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 791
& ORS.
2.7. The direction given by the State Government-for
A
the deletion of reservation on F.P. No.110, and. the
commencement and occupation certificates issued by
Pune Municipal Corporation in favour of the developer
were in complete subversion of the statutory
requirements of the MRTP Act. The development
B
permission was wholly illegal and unjustified. The order
of the Government dated 3.9.1996 cannot be traced to
any legitimate source of power, and, therefore, the
situation cannot be remedied by reference to other
sources of power. The Division Bench has, therefore, c
rightly held that the action taken by the Planning
authority was not legal and justified. [Paras 83 & 157]
[870-F-H; 935-H; 936-A-B]
3.1. In Gimar Traders case this Court has held that
in the scheme of the MRTP Act, the provisions of Land
D
Acquisition Act would apply only until the making of the
award u/s. 11 of the Act; and that MRTP Act is a selfcontai ned code and ss. 126 to 129 thereof clearly
enunciate the intention of the framers that substantive
provisions of L.A. Act are not applicable to MRTP Act. In
E
the instant case, the letter of the landowner had led to the
subsequent steps for acquisition. Section 126 (1) (c)
specifically states that when an application is made to
the State Government for acquiring the land under the L.A.
Act, the land vests absolutely with the Planning Authority.
F
Therefore, in /DI Co.'s case it was held that in the scheme
of MRTP Act, it is not necessary that the original public
purpose should continue to exist till the award was made
and possession taken. [Para 85, 89 and 95] [872-B; 874H; 875-A; 880-H; 881-A-E]
G
Municipal Corporation of Greater Bombay vs. Industrial
Development Investment Co. Pvt. Ltd. And Ors. (1996) 11
SCC 501; and Gimar Traders (3) Vs. State of Maharashtra
& Ors. 2011 (3) SCR 1 = 2011 (3) SCC 1 - relied on.
H
792
SUPREME COURT REPORTS
[2011] 12 S.C.R.
A
Industrial Development & Investment Company Pvt. Ltd.
Vs. State of Maharashtra 1988 Mh.LJ 1027 - stood
overruled.
Santu Kisan Khandwe Vs. Special Land Acquisition
8 Officer No. 2 Nasik & Ors 1995 (1) Mh.LJ 363 - disapproved
Special Land Acquisition Bombay Vs. Mis Godrej &
Boyce 1988 (1) SCR 590 =AIR 1987 SC 2421 -
distinguished
c
Ghulam Mustafa Vs. State of Maharashtra 1977 (1)
SCR 875 =1976 (1) SCC 800; Mangat Oram Vs. State of
Orissa 1977 (2) SCR 666 =1977 (2) SCC 46; State of
Maharashtra Vs. Mahadeo Deoman Rai 1990 (2) SCR
533 =1990 (3) SCC 579; Collector of 24 Parganas Vs. La/it
D Mohan Mullick 1986 (1)· SCR 271 =1986 (2) SCC 138 and
Ram Lal Sethi Vs. State of Haryana 1990 Supp. SCC 11 -
referred to
3.2. The acquisition of the land, in the instant case,
cannot said to be invalid on account of change of
E purpose during acquisition. Though, the civil court has
held the acquisition for the changed purpose under the
D.P Plan as bad in law on the ground that the initially
designated public purpose for acquisition was changed,
in view of the decision of this Court in Dhirendra Kumar's
F case, the civil suit itself was not maintainable in the
instant case. It is stated that an application has already
been filed for restoration of the appeal against the
decision of the civil court. [Para 97, 99 and 107] [883-C;
883-H; 884-A-B; 892-F-H; 893-A·D; 895-G-H; 896-A·B]
G Conduct of land owner/Developer:
4.1. The landowner never raised any objection when
the F.P. No. 110 was sought to be reserved for a public
purpose, viz. either for a garden/playground or
H subsequently for a primary school, nor did he challenge
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 793
& ORS.
the acquisition. He merely demanded compensation at a
A
higher rate. When the notice to take possession was
given, it is the tenants alone who filed suits challenging
the acquisition. It was in Civil Suit No. 397 of 1988 filed
by the tenants that on 2.4.1988 the prayer of the land
owner for transposing himself as a plaintiff was allowed. s
The civil court having held that the acquisition had
lapsed due to the change in purpose of acquisition (from
what it originally was in 1966), the PMC filed an appeal.
In 1995 the land-owner appointed the son-in-law of the
then Chief Minister as a developer and another power of c
attorney 'SKK' 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 O.P. Plan
itself), and the Minister used this information to get a
report from the Municipal Commissioner who suppressed
0
the fact that applications for this very plot from two
educational institutions were pending with PMC. Then
also the order of deletion was not passed either u/s. 37
(leave aside s. 22A), ors. 50 of the Act which was invoked
for the first time in this Court (and which otherwise also
E
could not be applied). The order of deletion was passed
under D.C. Rule 13.5 which had no application. [Para 99
and 103] [883-H; 8S4-A-D; 885-B-D; 893-A-D]
Conduct of the Minister of State for UDO. the then Chief
Minister, and the Municipal Commissioner :
F
4.2. The application of the landowner was received
directly at the level of the Minister of State and
immediately a meeting of High ranking officers was
called. In view of the direction of the Minister of State, the
Municipal Commissioner, who was the Chief Executive
G
of PMC and an officer of a high rank, was asked to make
a report after personally making a site inspection. Such
a direction is quite unusual and disturbing and is not
expected. The Municipal Commissioner, in his letter dated
17.4.1996, though reiter~ted the earlier stand of PMC, but
H
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SUPREME COURT REPORTS
[2011] 12 S.C.R.
A volunteered to add that private institutions may not come
to F.P. 110 to set up a primary school and PMC may as
well spend its funds elsewhere. This was not correct,
since applications of two reputed educational institutions
for this very plot were pending with PMC, and this fact
B was not stated by the Commissioner in his report. The
UDO did not accept the proposal of shifting the school
from F.P. 110 to a place far away, but the Minister of State
did not approve the note. The events in the matter
disclose that although the officers of UDO and the PMC
C 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 for Urban
Development asked the Municipal Commissioner to
personally carry out a survey of the property, on the
0 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 will be required for the
modification, that submission was by-passed. The
E 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 u/s. 37 of the
F 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 amenity. The Municipal
G Corporation was instructed to withdraw the First Appeal
which it had filed to challenge the decision of the civil
court in favour of the landowner in the matter of
acquisition. It is material to note that after the Municipal
Commissioner sent his report dated 17.4.1996, the Private
H Secretary to the then Chief Minister called for the file.
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 795
& ORS.
After all necessary directions were complied with, the
A
Chief Minister placed his approval on 21.8.1996. 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 he was
also associated with the decision making process and
B
the directions issued all throughout. [Para 100, 101 and
102] [887 -C-F-H; 888-A-B-E-F; 891-C-H; 892-A-D]
5.1. This is not a case where permission was sought
for the construction under erstwhile T.P. scheme, or u/s.
50 of the MRTP Act. This is a case where the personal
C
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. The development D
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 asked to
withdraw the appeal against the judgment holding that
E
acquisition has lapsed. 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 _ F
either under Rule 6.6.2.2 or u/s. 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, the judgment of the Division Bench of the
G
High Court holding that the disputed construction by the
developer was totally illegal and that there was nothing
wrong with the acquisition of F.P. No.110, is upheld as
- fully justified in law and in the facts of the case. [Para 104106) [893-E-H; 894-A-G; 895-A]
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[2011] 12 S.C.R
A
5.2. In view of the gross illegality in the order of the
State Government and PMC in granting the development
permission, the direction for cancellation of
Commencement Certificates and Occupation Certificate
had to be issued and the same can not be faulted. It was
B noted by the High Court that the PMC had been forced
by the State Government to apply for withdrawal of its
appeal so that the judgment of the civil court remains
undisturbed. Since the High Court came to the
conclusion that there was nothing illegal about the
c acquisition, the appeal had to be restored. The direction
is, therefore, fully justified. PMC has already filed an
application for restoration of the appeal. [Para 107] [895G-H; 896-A-B]
D
Order passed by the Division Bench of the High Court:
5.3. The direction (b) in the impugned order to
demolish the disputed building was issued basically on
two grounds. Firstly, the development permission had no
legal validity whatsoever, and secondly it was clearly a
E case of showing favouritism by going out of the way and
circumventing the law. Besides, since the challenge to
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 appeal,
F since the construction was absolutely illegal. There is no
redeeming feature whatsoever in the instant 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 power and also on the statute. The High
G Court was right in its conclusion. [Para 108, 109 and 112]
[896-C-D; 897-A-B; 899-B-C]
Pratibha Cooperative Housing Society Vs. State of
Maharashtra 1991 (2) SCR 745 = 1991 (3) SCC 341; M./
Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors. 1999 (3)
H SCR 1066 = 1999 (6) sec 464 - relied on
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 797
& ORS.
5.4. The ten storied building meant for private sale
A
must be either demolished or put to a permissible use.
The illegal development carried out by the developer has
resulted into a legitimate primary school not coming up
on the disputed plot of land. Thousands of children
would have attended the school on this plot during last s
15 years. The loss suffered by the children and the cause
of education is difficult to assess in terms of money, and
in a way could be considered to be far more than the cost
of construction of the building. It will, therefore, be open
to the developer to redeem himself by offering the entire c
building to PMC for being used as a primary school or
for the earmarked purpose, free of cost; Directions for
taking the necessary steps in this behalf within the
stipulated frame, given. [Para 158] [936-H; 937-A-C]
5.5. The building constructed for the tenants is meant D
for accommodating them, the developer and PMC have
no objection to the retention of the building constructed
for the erstwhile occupants of the plot. However these
occupants, who belong to economically weaker section
of the society, will now have to continue in that building
E
as tenants of PMC, for residential purpose, and they may
not be entitled to receive any monetary compensation.
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. [Para 113] [899-D-H; 900-AF
C]
5.6. As far as the ownership of the plot is concerned,
the same will abide by the decision of the High Court in
First Appeal Stamp No. 18615 of 1994 which will be
G
decided in accordance with law. [Para 159] [937-D]
Adverse remarks by High Court and its direction for
criminal investigation:
6.1. As regards the defence of the Municipal
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SUPREME COURT REPORTS
[2011] 12 S.C.R.
A Commissioner, firstly, when he made his report dated
17.4.1996 to the Minister of State, he overlooked the fact
that the reservation on the plot in question was for a
primary school, and not merely for a municipal primary
school. Two private schools had already come up on the
B adjoining plots as per the D.P. provision itself. Besides,
two renowned educational institutions had applied for
this plot of land for running of schools thereon. The
Commissioner did not place this very vital information
before the Minister for Urban Development in his report.
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. Both these acts
0 on the part of the Municipal Commissioner clearly
amounted to failure on his part to discharge his duty
correctly. But noticing that he had no personal interest
in 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 remarks
E against the Municipal Commissioner are, therefore,
deleted. [Para 117, 118 and 162] [902-G-H; 903-A-E-H; 904A; 939-H]
6.2. As regards the direction to initiate appropriate
F investigation, it has to be seen that as far as the
Municipal Commissioner is concerned, though the
Division Bench did not approve his conduct and squarely
criticized him, yet it observed that it did not attribute any
motive to him for his actions. That apart, s. 147 of the
G MRTP Act 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 be
done under this Act or any rules or regulations made
therein. Section 486 of the B.P.M.C. Act 1949 is also to the
H similar effect. The Division Bench of the High Court has
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 799
& ORS .
.
also clearly stated that it did not accept the suggestion
A
in the writ petitions that the Commissioner was willingly
a party to the process of abuse of executive powers.
Therefore, it would not be correct to direct any criminal
investigation against the then Municipal Commissioner.
[Para 137) [920-C-G-H; 921-A-B]
B
6.3. The Division Bench observed that initially the
Minister of State was also of the view that s. 37 of the
MRTP Act should be followed and the departmental note
was in fact as per the initial stand taken by the Minister C
of State, yet he declined to approve the note. The stand
of the Minister of State that until the last he had no
knowledge of land owner's connection with the son-inlaw of the Chief Minister can not be accepted. He acted
clearly against the provisions of law though he was fully
informed about the same. The natural inference which
D
flows from all this conduct is that right from the
beginning, the Minister of State was aware about land
owner's connection with the son-in-law of Chief Minister,
and, therefore, he acted for the benefit of the developer,
obviously at the instance of the then Chief Minister as
E
inferred by the Division Bench. There is no reason to
disagree. The remarks against the Minister of State are,
therefore, sustained. [Para 119- 121) [904-D-F; 906-F]
6.4. Though the Division Bench commented
F
adversely on the conduct of the Minister of State, yet it
also observed that there was nothing on record that he
had any personal motive in the matter. The Division
Bench has, thus, specifically inferred that whatever he
has done, was done to oblige his senior Minister i.e. the
G
then Chief Minister. In the circumstances, he is entitled
to a benefit of doubt and, therefore, the direction for
criminal investigation against him can not be sustained.
[Para 138) [921-F]
6.5. The two writ petitions contain serious allegations
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[2011] 12 S.C.R.
A
against the then Chief Minister. It is alleged that the Chief
Minister misused his executive powers and authority for
the purpose of securing benefits for his near relatives,
and it is specifically stated that this was for ensuring a
substantial monetary benefit for them. It is evident, on
B
24.4.1996 the initial report IJlade by the Municipal
Commissioner dated 17.4.1996 was called for the perusal
of the then Chief Minister. The 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
C Chief Minister himself. The disputed permission dated
3.9.1996 was issued in pursuance thereto. There is a
note dated 22.7.1998 on record which was meant for the
perusal of the Chief Minister to enable him to answer the
probable questions concerning this matter in the
0
assembly. 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 knowledge. The record
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. The relationship
E
is established. He cannot, therefore, escape the
responsibility for all the illegal actions in this matter. This
Court, therefore, refuses to expunge any of the remarks
made against him by the High Court. [para 122, 124, 130
and 135] [906-G-H; 907-A-G; 910-F; 916-D; 919-E-G]
F
State of U.P. Vs. Mohammad Nairn 1964 SCR 363 =
AIR 1964 SC 703; and P.K. Dave Vs. Peoples' Union of Civil
Liberties (Delhi) & Ors. 1996 (2) Suppl. SCR 770 = 996 (4)
sec 262 - relied on.
G
6.6. The conduct on the part of the then Chief Minister
prima-facie amounts to a misfeasance. However, in order
to indicate that misfeasance on the part of the Chief
Minister and the Minister of State amounts to a criminal
misconduct u/s 13(1)(d) of the Prevention of Corruption
H Act, 1988, there is neither any such reference to this
GIRISH VYAS & ANR. v. STATE OF MAHARASHTRA 801
& ORS.
section nor any prima facie finding in the impugned
A
judgment rendered way back in 1999. In the
circumstances in view of the proposition of law
enunciated in the case of Common Cause, a Registered
Society, the direction of the High Court to make criminal
investigations through an impartial agency, cannot be
B
sustained and is set aside. [Para 142) [923-F-H; 924-A]
Common Cause, A Registered Society Vs. Union of India
& Ors. 1999 (3) SCR 1279 = 1999 (6) sec 667 - relied on
7.1. Public interest litigation is not in the nature of C
adversarial litigation, but it is a challenge and an
opportunity to the government and its officers to make
basic human rights meaningful. By its very nature the PIL
is inquisitorial in character. Access to justice being a
Fundamental Right and citizen's participatory role in the
D
democratic process itself being a constitutional value,
accessing the court will.