REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2047 OF 2007
MIG CRICKET CLUB ...Appellant
VERSUS
ABHINAV SAHAKAR EDUCATION SOCIETY & ORS. ...Respondents
WITH
CONTEMPT PETITION (C) NO.43 OF 2007
JUDGMENT
CHANDRAMAULI KR. PRASAD,J.
CIVIL APPEAL NO.2047 OF 2007:
1. Respondent No. 3, MIG Cricket Club has
preferred this appeal by special leave, aggrieved
by the judgment of the Division Bench of the Bombay
High Court dated 5th of September, 2005 passed in
Writ Petition No. 1561 of 1992 whereby it had
allowed the writ petition and quashed the
2
notification dated 24th of April, 1992, published
in the Gazette on 7th of May, 1992 and further
directed the respondents of the writ petition to
restore the reservation of plot for "school and
cultural centre".
2. According to the writ petitioner - Respondent
No. 1 Abhinav Sahkar Education Society, a Society
registered under the Societies Registration Act,
1860 (hereinafter referred to as the "writ
petitioner") it was allotted a portion of plot of
land admeasuring 7224 sq. yards, bearing Survey No.
341 situated at MIG Colony, Gandhi Nagar, Bandra
(East) in the city of Mumbai. Respondent No. 4,
Maharashtra Housing and Area Development Authority
(hereinafter referred to as "MHADA") and Respondent
No. 5, Bombay Housing and Area Development Board
(hereinafter referred to as "BHADB") with the
consent of Respondent No. 3, Municipal Corporation
of Greater Bombay (hereinafter referred to as the
3
"Corporation") under a resolution of February, 1965
granted lease for a period of 99 years to the writ
petitioner on a premium equivalent to the price
fixed and payable annually by way of installments.
According to the writ petitioner, however, on
measurement of the plot, the area was found to be
7301.25 sq. yards and when it proposed to construct
a school building thereon, it came to its notice
that the area in question has been reserved for a
playground in the draft development plan. Writ
Petitioner brought this fact to the notice of MHADA
and BHADB by letter dated 8th of May, 1968 and in
answer thereto the writ petitioner Society was
asked to get the user of the land changed in
accordance with law. Meanwhile, according to the
writ petitioner, the Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as the
"Act") had come into force on 20th of December,
1966.
4
3. Further case of the writ petitioner is that by
letter dated 15th of November, 1978 the Secretary to
the Government of Maharashtra in the Department of
Housing and the Chief Executive Officer and Vice-
President of MHADA in a letter addressed to the
Secretary of Urban Development Department requested
for modification of the draft development plan
showing "school purpose" for the user of the said
plot. By letter dated 1st of January, 1979, the
Senior Town Planner of the Bombay Metropolitan
Regional Development Authority directed the writ
petitioner to furnish certain details and plans.
According to the writ petitioner he duly complied
with the direction. It has been further averred
that by letter dated 12th of November, 1979
addressed to the Personal Assistant to the Minister
for Education, his intervention was sought for the
necessary change in the user of the land for the
purpose of school. By letter dated 10th of August,
5
1983, the Under Secretary to the Urban Development
Department of the State Government informed the
writ petitioner that instruction has been issued to
the Corporation for change of the user of the plot
in question for school purposes. In February 1984,
according to the writ petitioner, the Corporation
passed a resolution sanctioning user of the said
plot for the purpose of a school. Ultimately in
exercise of the powers under Section 37(2) of the
Act, a notification dated 10th of April, 1985 came
to be issued and published in the Government
Gazette on 25th of April, 1985. By the said
notification the land admeasuring 6103.33 sq.
meters out of Survey No. 341 (Part) was excluded
from the site reserved for the playground and the
land so released was earmarked for the "school and
cultural centre" in the development plan of the
area. The change of the user of the said plot was
also confirmed to the writ petitioner by the
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Executive Engineer, Town Planning (Division Plan)
by the Corporation by letter dated 15th of April,
1985.
4. It is the allegation of the writ petitioner
that during the period 1985-1986 it came to its
notice that Respondent No. 3 of the writ petition
i.e. MIG Cricket Club (the appellant herein) had
also approached the State Government for change of
the user of the said plot for "cricket playground".
It is the case of the writ petitioner that attempts
were made to convince it to shift the school to
another plot as the plot in question was required
by the MIG Cricket Club (hereinafter referred to as
"the Club") for its playground. Petitioner did not
yield to the pressure and by letter dated 10th of
November, 1986 sought permission to erect a
compound wall on account of the threats given by
the Club. The Corporation by its communication
dated 24th of November, 1986 gave the permission
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sought for and informed the writ petitioner to
submit development plan to the State Government.
According to the writ petitioner, the Corporation
informed it that in the proposed development plan
submitted to the Government, by mistake it has
shown the plot in question as "cricket club and
playground". In the aforesaid premises petitioner
was asked to approach the State Government to get
the mistake rectified. As directed, the petitioner
by letter dated 8th of November, 1986 approached
the State Government for rectification of the
mistake and the same was acknowledged by the
Corporation stating that appropriate action would
be taken in this regard. However, to its surprise
the petitioner came across the notification dated
24th of April, 1992 published in the Gazette on 7th
of May, 1992 which revealed that State Government
in exercise of the powers conferred under Section
31(1) of the Act, had modified the user of the land
8
in question and instead of land being shown
reserved for "school and cultural centre" it was
shown as a "playground".
5. Aggrieved by the same, the petitioner
preferred the writ petition inter alia challenging
the aforesaid notification and further for a
direction to the respondents of the writ petition
to restore the reservation of plot for "school and
cultural centre".
6. Respondents in the writ petition including the
Club, the appellant herein, contested the writ
petition and according to them the notification
dated 10th of April, 1985 was a minor modification
in relation to a specific plot of land of a
development plan sanctioned by the State Government
before the commencement of the Act. It was further
pointed out that the draft development plan for the
entire area was already prepared on 16th October,
9
1984 and after hearing the necessary objections and
suggestion the revised draft development plan was
submitted on 29th of April, 1986 by the Corporation
with necessary modification to the State
Government. The same was finalized and the impugned
notification dated 24th of April, 1992 was issued
and published on 7th of May, 1992, whereby the land
in question was shown as reserved for the purpose
of "playground". It has further been averred by
the respondents that the interest of the petitioner
was also safeguarded by reserving a plot towards
the eastern side of the plot in question for the
"school and cultural centre". According to the
respondents such finalization of the plan was done
after hearing all the interested parties. It is
the allegation of the respondents that the school
opened by the petitioner was permanently closed
since 1990 and on account of the failure on the
part of the petitioner to pay the premiums payable
10
to MHADA, the allotment in favour of the petitioner
is liable to be cancelled. Respondents have
further averred that the land in question was
delivered to the Corporation which in turn leased
the same to the Club since September, 1974.
7. In view of the pleadings of the parties the
question which fell for consideration before the
High Court was whether the notification dated 24th
of April, 1992 issued in exercise of the powers
under Section 31(1) of the Act was legal, valid and
complied with the provisions of the Act.
8. The High Court on appraisal of the materials
came to the conclusion that the notification dated
10th of April, 1985 purportedly issued in exercise
of the powers under Section 37(2) of the Act was in
fact issued in exercise of the power under Section
31(2) of the Act. While doing so the High Court
observed as follows:
11
"The very fact that the draft
development plan was prepared and placed
for objections and suggestions from the
members of the public on 30th April, 1984
and thereafter, by the notification
dated 10th April, 1985 the respondents
had finalized the reservation of the
land in question to be for school and
cultural centre, even though the
notification on the face of it refers to
the exercise of powers under Section
37(2) of the said Act, for all the legal
purposes, it will have to be construed
as having been issued in exercise of
powers under Section 31 of the said Act
in relation to the area in question. It
is pertinent to note that there is no
dispute on the point that subsequent to
the draft development plan was prepared
on 30th April, 1984, there was no
finalization of the said plan in terms
of Section 31 of the said Act otherwise
than the notification of 10th April,
1985. Being so, there was no occasion
for the respondents on 10th April, 1985
to exercise the powers under Section
37(2) which clearly speaks of
modification in the final development
plan."
As regards notification dated 24th of April,
1992 said to have been issued in exercise of the
power under Section 31(1) of the Act, the High
Court observed that in fact the State Government
12
exercised the power under Section 37(2) of the Act.
In this connection, the High Court observed as
follows:
"........Once it was known to the
respondents that the draft plan was
prepared on 30th April, 1984 and was
subjected to the objections and
suggestions from the members of the
public and thereafter, on 10th April,
1985, a part of such area was
finalized and notified, mere reference
in the notification to Section 37(2)
of the said Act could not be construed
to mean that the powers had been, in
fact, exercised under Section 37(2).
It will have to be construed as having
been exercised under Section 31(1) of
the said Act, and for the same reason,
it was necessary for the respondents
to explain as to how and why the said
notification dated 10th April, 1985
could not be considered or was not
necessary to be construed while
issuing the notification dated 24th
April, 1992."
Ultimately, the High Court held that the
impugned notification dated 24th of April, 1992 had
been issued without consideration of the
notification dated 10th of April, 1985 which
13
renders the same illegal. While holding so the
High Court observed as follows:
".........The impugned notification is of
dated 24th April, 1992. Being so, once
it is held that the impugned
notification has not been issued in
compliance with the provisions of law
and the decision making process in
that regard does not disclose the
opportunity to the petitioner of being
heard in the matter and the
consideration of the notification
dated 10th April, 1985 and application
of mind by the concerned authorities
before issuing the impugned
notification, for the reasons stated
above, therefore, the impugned
notification is liable to be quashed
and set aside to the extent it relates
to the plot in question.
Consequently, the respondents will
have to be also directed to restore
the reservation of the plot in
question in accordance with the
notification dated 10th April, 1985."
Accordingly the High Court allowed the writ
petition, quashed the impugned notification and
granted the relief sought for by the writ
petitioner.
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9. Mr. Shyam Divan, Senior Advocate appearing on
behalf of the appellant contends that the High
Court erred in holding that the notification dated
10th April, 1985 is, in fact, final development
plan in relation to the area in question as
contemplated under Section 31(1) of the Act. He
points out that under Section 35 of the Act a
development plan sanctioned by the State Government
before commencement of the Act shall be deemed to
be final development plan sanctioned under the Act.
According to him, the notification dated 10th
April, 1985 modified the deemed final development
plan which was in existence prior to the coming
into force of the Act. Under the deemed development
plan, according to Mr. Divan, the area in question
was shown as "playground" and hence, the
modification in the final development plan can be
done in exercise of the power conferred under
Section 37(2) of the Act. In fact, while issuing
15
the notification dated 10th April, 1985, such a
power was exercised which would be apparent from
the notification and the site reserved for
"playground" was earmarked for the "school and
cultural centre". Mr. Divan further points out
that the draft development plan submitted on 29th
April, 1986 was sanctioned as development plan
under Section 31(1) of the Act by notification
dated 24th April, 1992 and the notification itself
shows that it was sanctioned under Section 31(1) of
the Act. According to him, the High Court
erroneously held that this notification, in fact,
was issued under Section 37(2) of the Act. In sum
and substance, according to Mr. Divan, the
notifications dated 10th April, 1984 and 24th April,
1992 show that it were issued in exercise of the
powers under Section 37(2) and Section 31(1) of the
Act, but the High Court misdirected itself and held
16
the same to have been issued under Sections 31(1)
and 37(2) of the Act respectively.
10. Ms. Vaishali Thorat, however, appearing on
behalf of Respondent No.1 submits that the
notification dated 10th April, 1985 was a final
development plan sanctioned under Section 31(1) of
the Act and without considering the same it has
been modified by the impugned notification dated
24th April, 1992 in exercise of the power under
Section 37(2) of the Act which renders the same
illegal in the eye of law. She further points out
that non-consideration of the notification dated
10th April, 1985, while issuing the notification
dated 24th April, 1992 vitiates the impugned
notification.
11. Rival submissions necessitate examination of
the scheme of the Act. Section 35 of the Act which
17
is relevant for the purpose, reads as follows:
"35. Development plans sanctioned by
State Government before commencement
of this Act :
If any Planning Authority has prepared
a Development plan which has been
sanctioned by the State Government
before the commencement of this Act,
then such Development plan shall be
deemed to be a final Development plan
sanctioned under this Act."
From a plain reading of the aforesaid
provision, it is evident that the Development plan
sanctioned by the State Government before the
commencement of the Act, shall be deemed to be a
final Development plan sanctioned under the Act.
Making of Development plan requires consideration
of various inputs and for that several bodies have
to be consulted and various steps as provided in
the Act are required to be taken. Naturally it
would take some time. A town cannot exist without a
Development plan, otherwise it would lead to chaos.
No Development plan was made under the Act which
18
came into force on 20th of December, 1966 and hence
the legislature created a legal fiction by enacting
Section 35 of the Act. It provided for assuming a
fact i.e. existence of a Development plan, which
was, in fact, not made in accordance with the
provisions of the Act. It has to be borne in mind
that when a legal fiction is created it shall be
given full effect. Generally legal fiction is
created to advance public policy and preserve the
rights of certain individuals and institutions.
Legal fiction tends to treat an imaginary state of
affairs as real and entails the natural corollaries
of that state of affairs. Hence, the Development
plan, existing prior to the coming into force of
the Act, shall be deemed to be a sanctioned
Development plan under Section 31(1) of the Act.
12. Section 31(1) of the Act inter alia provides
for sanction of the draft Development plan, the
same reads as follows:
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" 31. Sanction to draft Development
plan.
(1) Subject to the provisions of this
section, and not later than one year
from the date of receipt of such plan
from the Planning Authority, or as the
case may be, from the said Officer,
the State Government may, after
consulting the Director of Town
Planning by notification in the
Official Gazette sanction the draft
Development plan submitted to it for
the whole area, or separately for any
part thereof, either without
modification, or subject to such
modifications as it may consider
proper, or return the draft
Development plan to the Planning
Authority or as the case may be, the
said Officer for modifying the plan as
it may direct, or refuse to accord
sanction and direct the Planning
Authority or the said Officer to
prepare a fresh Development plan:
Provided that, the State
Government may, if it thinks fit,
whether the said period has expired or
not, extend from time to time, by a
notification in the Official Gazette,
the period for sanctioning the draft
Development plan or refusing to accord
sanction thereto, by such further
period as may be specified in the
notification:
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Provided further that, where the
modifications proposed to be made by
the State Government are of a
substantial nature, the State
Government shall publish a notice in
the Official Gazette and also in local
newspapers inviting objections and
suggestions from any person in respect
of the proposed modifications within a
period of sixty days from the date of
such notice."
The aforesaid provision confers power on the
State Government to sanction the draft Development
plan submitted to it for the whole area or
separately for any part thereof either without
modification or subject to such modifications as it
may consider proper. Therefore, Section 31 of the
Act operates in the field of the power of the State
Government to sanction a draft Development plan.
Under the scheme of the Act, a minor modification
of the Development plan sanctioned under Section
31(1) of the Act is provided under Section 37(2) of
the Act. It reads as follows:
21
"37. Minor modification of final
Development plan.
(1) xx xx xx
(2) The State Government may, after
making such inquiry as it may
consider necessary after hearing the
persons served with the notice and
after consulting the Director of Town
Planning by notification in the
Official Gazette, sanction the
modification with or without such
changes, and subject to such
conditions as it may deem fit, or
refuse to accord sanction. If a
modification is sanctioned, the final
Development plan shall be deemed to
have been modified accordingly."
From a plain reading of the aforesaid provision
it is evident that the State Government has been
conferred with the power to make minor modification
to the final Development plan. Thus, under the
scheme of the Act, a Development plan sanctioned by
the State Government prior to the commencement of
the Act, shall be deemed to be the final
Development plan and there can be minor
22
modification in such Development plan by the State
Government in exercise of power conferred under
Section 37(2) of the Act. Sanction of draft
Development plan is provided under Section 31(1) of
the Act.
13. Bearing in mind the scheme of the Act, as
aforesaid, we are of the opinion that the
Development plan sanctioned by the State Government
before commencement of the Act, has become final
Development plan under the Act. The Development
plan existing prior to the commencement of the Act
shows that the area in question was reserved for
"playground" which was modified to "school and
cultural society" in exercise of power under
Section 37(2) of the Act and earmarked for the
"school and cultural centre" by notification dated
25th April, 1985. Such a course was permissible
under law. It is the writ petitioner's plea that
23
the Corporation informed it that in the proposed
Development plan the area in question has been
shown as "cricket club and playground". Had the
notification dated 25th April, 1985 been a sanction
of final Development plan, the area in question
ought not to have figured in the draft Development
plan submitted to the State Government. The draft
plan submitted to the State Government was
considered by it and the Development plan dated 24th
April, 1992 was sanctioned. This, in our opinion,
is not the modification of the Development plan but
sanction of the same in exercise of the power under
Section 31(1) of the Act. It seems that the High
Court misdirected itself by considering the
notification dated 10th April, 1985 to be the
sanction of the Development plan under Section
37(2) of the Act and the notification dated 24th
April, 1992 to be the modification of the final
Development plan which has rendered its order
24
illegal. It is trite that the validity of the order
does not depend upon the section mentioned in the
order. Wrong provision mentioned in the order
itself does not invalidate the order, if it is
found that order could be validly passed under any
other provision. However in a case, like the
present one, contrary to what have been mentioned
in the notifications the Court cannot say that such
powers were not exercised to render the
notification illegal if in fact such power exists.
14. It is well settled that the user of the
land is to be decided by the authority empowered to
take such a decision and this Court in exercise of
its power of judicial review would not interfere
with the same unless the change in the user is
found to be arbitrary. The process involves
consideration of competing claims and requirements
of the inhabitants in present and future so as to
make their lives happy, healthy and comfortable.
25
We are of the opinion that town planning requires
high degree of expertise and that is best left to
the decision of State Government to which the
advise of the expert body is available. In the
facts of the present case, we find that the power
has been exercised in accordance with law and there
is no arbitrariness in the same.
15. In the result, the appeal is allowed, the
impugned judgment of the High Court is set aside.
However, there shall be no order as to costs.
CONTEMPT PETITION ) NO.43 OF 2007:
16. In view of the order passed in Civil
Appeal No.2047 of 2007, we are not inclined to
entertain the contempt petition. The Contempt
Petition stands dismissed.
...........................................................J
( MARKANDEY KATJU )
........................................................................J
(CHANDRAMAULI KR. PRASAD)
26
NEW DELHI,
SEPTEMBER 5, 2011.
