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CASE NO.: Appeal (civil)  3800 of 2003

PETITIONER: Pune Municipal Corporation & Anr.

RESPONDENT: Promoters & Builders Association & Anr.

DATE OF JUDGMENT: 05/05/2004

BENCH: CJI & G.P. MATHUR.

JUDGMENT: JUDGMENT

(with Civil Appeals Nos. 3801/2003,  

3802/2003, 3803/2003, 3804/2003)                 

RAJENDRA BABU,  CJI. :

       Whether the impugned amendment to the Development  Control Rules (DCR) sanctioned by the State Government of  Maharashtra is in accordance with the provisions of the  Maharashtra Regional and Town Planning Act, 1966 (the Act)  is the matter for consideration herein.  

       The Act inter alia constituted Regional Development  Authorities to streamline the development planning of  Greater Bombay and Pune. Respective Corporations of  Bombay and Pune were nominated as Regional Development  Authorities under the Act. On 8-7-1993 the Maharashtra  Government issued a directive under section 37 of the Act to  Pune Municipal Corporation (PMC) to amend its DCR in the  line of Bombay DCR. On 30-9-1993 PMC published the  proposed amendments in the Official Gazette and invited  objections / suggestions in accordance with section 37(1) of  the Act. Subsequently the State Government sanctioned the  proposed amendments. On 22-8-1995 the PMC submitted a  proposal for modification of the DCR without any  modification in the draft regulations. Thereafter, the State  Government vide Notification dated 5-6-1997 under section  37(2) of the Act sanctioned the proposal of the modification  and notified the modified DCR. It is pointed out that the  proposal submitted by the PMC did not contain the words  "very said plot" in the proposed amendment to Rule N  2.4.11. However when the sanction was granted the State  Government made certain additions to the Rules and the  Rule N 2.4.11 contains the word "very said plot". The Floor  Space Index (FSI) granted additionally under these rules  was properly sanctioned by the PMC. Subsequently, the  request to grant additional FSI was rejected by the PMC.  This resulted in the present litigation. The Respondents  herein challenges this amendment before the High Court on  the ground that the additions made by the State  Government while giving the final sanction is beyond the  powers of the State Government under section 37(2) of the  Act. The High Court allowed the petition on the reasoning  that the language of section 37(2) nowhere allows the State  Government to add conditions of its own or amendments of  its own in the modifications submitted by the Planning  Authority. It is also found that the State Government is

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bound to hear the affected parties or those who suggested  modification to the proposals, before giving sanction. High  Court also pointed out that on applying the principles of  promissory estoppel the corporation couldn’t be allowed to  insist that the additional 0.4 FSI be used on the same very  plot. This decision is impugned before us.  

       The question now for consideration is whether the State  Government can make any changes of its own in the  modifications submitted by Planning Authority or not. The  impugned section 37 of the Act reads as follows:  

"37(1) Where a modification of any part of or  any proposal made in, a final Development  plan is of such a nature that it will not  change the character of such Development  plan, the Planning Authority may, or when so  directed by the State Government shall,  within sixty days from the date of such  direction, publish a notice in the Official  Gazette and in such other manner as may be  determined by it inviting objections and  suggestions from any person with respect to  the proposed modification not later than one  month from the date of such notice; and  shall also serve notice on all persons affected  by the proposed modification and after giving  a hearing to any such persons, submit the  proposed modification with amendments, if  any, to the State Government for sanction.  (1A) \005 (1AA) \005 (1B) \005 (2) The State Government may, make such  inquiry as it may consider necessary 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 plans shall be deemed to  have been modified accordingly."  (emphasis supplied)

       Reading of this provision reveals that under clause (1),  the Planning Authority after inviting objections and  suggestions regarding the proposed amendment and after  giving notice to all affected persons shall submit the  proposed modification for sanction to the Government. The  deliberation with the public before making the amendment is  over at this stage. The Government, thereafter, under clause  (2) is given absolute liberty to make or not to make  necessary inquiry before granting sanction. Again, while  according sanction, Government may do so with or without  modifications. Government could impose such conditions as  it deem fit. It is also permissible for the Government to  refuse the sanction. This is the true meaning of the clause  (2).  It is difficult to uphold the contrary interpretation given  by the High Court. The main limitation for the Government is  made under clause (1) that no authority can propose an  amendment so as to change the basic character of the  development plan. The proposed amendment could only be  minor within the limits of the development plan. And for  such minor changes it is only normal for the government to

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exercise a wide discretion, by keeping various relevant  factors in mind. Again, if it is arbitrary or unreasonable the  same could be challenged. It is not the case of the  Respondents herein that the proposed change is arbitrary or  unreasonable. They challenged the same citing the reason  that the Government is not empowered under the Act to  make such changes to the modification.          Making of DCR or amendment thereof are legislative  functions. Therefore, section 37 has to be viewed as  repository of legislative powers for effecting amendments to  DCR. That legislative power of amending DCR is delegated to  State Government. As we have already pointed out, the true  interpretation of section 37(2) permits the State government  to make necessary modifications or put conditions while  granting sanction. In section 37(2), the legislature has not  intended to provide for a public hearing before according  sanction. The procedure for making such amendment is  provided in section 37. Delegated legislation cannot be  questioned for violating principles of natural justice in its  making except when the statute itself provides for that  requirement. Where the legislature has not chosen to  provide for any notice or hearing, no one can insist upon it  and it is not permissible to read natural justice into such  legislative activity. Moreover, a provision for ’such inquiry as  it may consider necessary’ by a subordinate legislating body  is generally an enabling provision to facilitate the  subordinate legislating body to obtain relevant information  from any source and it is not intended to vest any right in  anybody. (Union of India and Anr. v. Cynamide India Ltd  and Anr. (1987) 2 SCC 720 paragraphs 5 and 27. See  generally HSSK Niyami and Anr. v. Union of India and Anr.  (1990) 4 SCC 516 and Canara Bank v. Debasis Das (2003) 4  SCC 557). While exercising legislative functions, unless  unreasonableness or arbitrariness is pointed out, it is not  open for the Court to interfere. (See generally ONGC v.  Assn. of Natural Gas Consuming Industries of Gujarat 1990  (Supp) SCC 397) Therefore, the view adopted by the High  Court does not appear to be correct.          The DCR are framed under section 158 of the Act.  Rules framed under the provisions of a statute form part of  the statute. (See General Office Commanding-in-Chief and  Anr. v. Dr. Subhash Chandra Yadav and Anr. (1988) 2 SCC  351, paragraph 14). In other words, DCR have statutory  force. It is also a settled position of law that there could be  no ’promissory estoppel’ against a statue. (A.P Pollution  Control Board II v. M V Nayudu (2001) 2 SCC 62, paragraph  69, Sales Tax Officer and Another v. Shree Durga Oil Mills  (1998) 1 SCC 572, paragraphs 21 and 22 and Sharma  Transport v. Govt. of AP (2002) 2 SCC 188, paragraphs 13  to 24). Therefore, the High Court again went wrong by  invoking the principle of ’promissory estoppel’ to allow the  petition filed by the Respondents herein.          For the foregoing reasons, the view adopted by the  High Court cannot be sustained.           These appeals are allowed by setting aside the order of  the High Court and the writ petitions filed before the High  Court are dismissed.