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CASE NO.: Review Petition (civil)  1809 of 2005

PETITIONER: Promoters & Builders Association of Pune

RESPONDENT: Pune Municipal Corporation & Ors

DATE OF JUDGMENT: 11/05/2007

BENCH: G.P. Mathur & R.V. Raveendran

JUDGMENT: J U D G M E N T

REVIEW PETITION (CIVIL) NO.1809 OF 2005 IN  CIVIL APPEAL NO.3800 OF 2003 WITH REVIEW PETITION (CIVIL) NOS.1856-1857 OF 2005 IN  CIVIL APPEAL NO.3804 OF 2003

G.P. Mathur, J.

       These are review petitions seeking review of the judgment and  order dated 5.5.2004 passed by this Court in Civil Appeal No.3800 of  2003.   We will give the facts of Review Petition No.1809 of 2005,  which is the leading case.  

2.          The Maharashra legislature enacted Maharashtra Regional  Town Planning Act, 1966 (for short ’the Act’) for planning and  development of the cities, constitution of Regional Planning Boards  and to make provision for the preparation of development plans with a  view to ensuring that Town Planning Schemes are made in a proper  manner and their execution is made effective and for ancillary  purposes.   Chapter III of the Act deals with development plans.    Under the Scheme of the Act, Development Control Rules are framed  separately for each city keeping in view the peculiar requirements of  each city/town.  The dispute here pertains to Development Control  Rules (for short ’DCR’) for Pune which has been constituted as a  corporation under the Bombay Provincial and Municipal Corporation  Act, 1949 (for short ’BPMC Act’).  Pune Municipal Corporation is  also the planning authority under the provisions of the Act for the city  of Pune.  A concept of Transfer of Development Rights (for short  ’TDR’) was introduced in the Regulations of Greater Bombay and the  object of introducing such concept was to facilitate acquisition of land  for public purposes.   The concept of TDR operates in the following  manner :-  "The owner or the lessee of the plot of land will hand  over the possession of the reserved land to the planning  authority and as against such handing over, such owner  or the lessee will be granted "development right  certificate" so as to enable such owner to construct built  up area equivalent to permissible FSI of the land acquired  in one or more other plots and in the zones specified.    Such one or more plots are termed as "receiving plots".

3.      The State of Maharashtra issued a directive under Section 37(1)

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of the Act to the Pune Municipal Corporation on 8.7.1993 to amend  Development Control Rules of Pune city. The Pune Municipal  Corporation then issued a notification in the Gazette on 30.9.1993 by  which the process of modification was initiated and it was notified  that the modification would be on the same lines as applicable in  Greater Bombay.  One of the proposed modifications was in Rule  N.2.4.11 which was as under :  "FSI of receiving plot shall be allowed to be exceeded  by not more than 0.4 in respect of D.R. available in  respect of the reserved plot and upto a future 0.4 in  respect of D.R. available in respect of the lands  surrendered for road widening or construction of new  roads as prescribed."

       After prescribed procedure had been completed, the  Corporation forwarded the proposed modification to the State  Government.   The State Government then issued a notification under  Section 37(2) of the Act on 5.6.1997 sanctioning the proposal and  notified the modified Development Control Rules of Pune Municipal  Corporation.  Rule N.2.4.11 which was sanctioned and notified by the  State Government reads as under :  "(a)    The FSI on receiving plots shall be allowed to be  exceeded not more than 0.4 in respect of DR available for  the reserved plots.

(b)     The FSI on receiving plots shall be allowed to be  exceeded by further 0.4 in respect of DR available on  account of the land surrendered for the road widening or  construction of new road from very said plot."             

4.      The State Government while sanctioning Rule N.2.4.11  introduced a departure from the Bombay Development Control Rules.  Some other changes were also made by the State Government in the  Rules which had been proposed by the Pune Municipal Corporation.    Thereafter, some exchange of correspondence and meetings took  place between the Pune Municipal Corporation and the State  Government as regards the interpretation of the above Rule.  The  Chief Secretary of the Urban Development Department, Government  of Maharashtra then sent a detailed letter to the Pune Municipal  Corporation on 11.6.1998 regarding the correct interpretation of the  notified Development Control Rules.   Regarding Rule N.2.4.11 it was  stated as under in the said letter :  "8.    Use of 0.4 Transferable Development Rights and  0.4 Development Plan Road together making 0.8 Floor  Space Index on the same property.

The policy adopted by the Mumbai Municipal  Corporation should be followed by the Pune Municipal  Corporation."

5.      In view of the clarification issued by the State Government, the  Pune Municipal Corporation issued a circular on 20.7.1999 and with  regard to Rule N.2.4.11 it was stated as under : "As per the rule No.2.4.11 (a & b) of the Development  Control Rules the TDR of 0.4 of the total floor space area  of the receiving plot out of TDR of road widening or  other roads widening and 0.4 of the total floor space area  of the receiving plot out of TDR of areas reserved for  other purposes is allowed.   Thus a maximum of 0.8 of  the total floor space area of the receiving plot shall be  permitted."

       More than two years thereafter, the Pune Municipal

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Corporation  passed a Resolution on 29.10.2001 not to allow use of  additional 0.4 FSI in the area other then the plot from which the land  for road widening has been acquired which was in tune with clause (b)  of D.C.R.-2.4.11.   This decision of the Corporation was endorsed by  the General Body on 21.11.2001.  It may be pointed out here that  while sanctioning the proposal of the Pune Municipal Corporation, the  State Government added the words "from the very said plot" towards  the end of clause (b) of Development Control Rule N.2.4.11 in the  notification which was issued by it on 5.6.1997.  It is the addition of  these words by the State Government which gave rise to the litigation  which was ultimately decided by this Court in Civil Appeal No.3820  of 2003 and the introduction of said words is also under challenge in  the present review petitions.     6.      Promoters and Builders Association of Pune, a Society  registered under the provisions of Societies Registration Act, filed  Writ Petition No.5198 of 2001 against Pune Municipal Corporation  and State of Maharashtra challenging the modified Development  Control Rules, especially Rule N-2.3(A) and N.2.4.11 (a) and (b),  wherein the principal relief claimed was that a writ of mandamus be  issued commanding the respondents to the writ petition to implement  Development Control Rule N-2.4.11(b) in a manner that the road area  in respect of the plot, which is reserved for the road can be utilized  being 0.4 FSI on the same plot and the balance unutilized FSI, if any,  can be converted into TDR and can be used anywhere on a receiving  plot to the extent of 0.4 FSI, in addition to the 0.4 FSI permissible on  the receiving plot for amenities under Rule N-2.4.11(a) and direct the  Municipal Corporation to forthwith dispose of the applications which  had been submitted by the members of the petitioner Association in  the light of said clarification.   The writ petition was contested by the  Pune Municipal Corporation and State of Maharashtra by filing  counter affidavits.  The High Court after considering the provisions of  Section 37 of the Act and also of the Development Control Rules,  allowed the writ petition on 23.4.2002.  It will be useful to reproduce  the findings recorded by the High Court and the relevant part of paras  18, 19 and 21 of the judgment of the High Court are reproduced  below:                  "18.    In our opinion, therefore, it was not possible for  the State to add the words "from the same plot" in      clause  2.4.11 as the same have been added without being  publicized as required by the provisions of Section 37(1).   The planning authority did not want the words "same  plot" to be introduced.  It did not therefore propose the  modifications in that fashion. It is the claim of the  Planning Authority before us that the words were  inserted by the Government.  There is no answer to this  by the State Government and it was obvious that it was  done by the State Government.  Since the addition has  been done by the State without following the procedure  established by Section 37(1)(A) or Section 37(1), the  words added cannot be read as validly added in the  Development Regulations and the addition will have to  be struck down as beyond the competence of the State  Government.  The State Government has not directed  under Section 37(1) to make modification in the  Regulations as the direction does not include the words  "from the same plot".  There was no notice to the persons  affected and therefore there was no objection raised to it.    The insertion of those words by the State while granting  sanction is therefore tantamount to modifying the Final  Development Plan in the exercise of its powers under  Section 37(1)(A).  The State could have done so but then  it was duty bound to follow the procedure under Section  37(1)(A).  Obviously there is failure on the part of the

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State to do so and therefore inclusion of those words in  the Regulation is illegal. ........ .............................

19.     ..................................... On the principles of  promissory estoppel also, therefore, the Corporation  cannot be allowed to insist that the additional 0.4 FSI be  used on the same very plot.   In our opinion, therefore,  even if the interpretation put by us on Section 37 is not  accepted still on the ground of promissory estoppel, the  corporation will have to be restrained from requiring the  owners or builders from giving up additional 0.4 FSI on  the interpretation of the regulation of 2.4.11 to mean that  it must be used on the same very plot.

21.     In the result, therefore, the petitions succeed and  are allowed.   The words "from the same very plot" in  clause 2.4.11 of the Development Control Regulation as  passed by the Planning Authority, Municipal  Corporation, Pune are hereby struck down. The  respondents Planning Authority is directed to permit the  use of 0.8 FSI to the petitioners and other similarly  situated owners, builders etc. as transferred development  rights wholly or on part as proposed by them.    Consequently, the respondents are directed to sanction  the building plan submitted by the petitioners  incorporating FSI of 0.8 as available in accordance with  D.C. Rules 2.4.11."

7.      Feeling aggrieved by the decision of the High Court, the Pune  Municipal Corporation filed Civil Appeal No.3800 of 2003 in this  Court.   After hearing learned counsel for the parties, this Court  allowed the appeal by the judgment and order dated 5.5.2004.  The  judgment of the High Court was set aside and the writ petition filed  before the High Court was dismissed.   For the sake of convenience,  the relevant part of the judgment of this Court is reproduced below :         "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) ..... (1AA) ..... (1B) ...... (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

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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 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(1). 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

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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."

8.      We have heard Mr. U.U. Lalit and Mr. V.A. Bobde, Senior  Advocates for the review petitioners and Mr. Mukul Rohatgi, Senior  Advocate for the respondents at considerable length and have  examined the record.  

9.      The main challenge of the review petitioners is to the addition  of the words "from the very said plot" towards the end of clause (b) in  DCR-2.4.11.  Learned counsel for the petitioners have submitted that  in the proposal sent by the Pune Municipal Corporation after  following the procedure prescribed in Sub-section (1) of Section 37  the aforesaid words were not there.   However, the State Government  while sanctioning the proposal added the said words which in law it  could not do.  It has been submitted that the Municipal Corporation  had submitted the proposal after inviting objections and after giving  an opportunity of hearing and the proposal so made by the Municipal  Corporation could not have been modified or altered by the State  Government without inviting objections or giving an opportunity of  hearing with regard to changes which it proposed to make and which  were ultimately made in the notification issued by it.  This point has  been considered and examined in the judgment and order of this Court  dated 5.5.2004.   The language of Sub-section (2) of Section 37 uses  the expression "sanction the modification with or without such  changes, and subject to such conditions as it may deem fit, or refuse to  accord sanction".  The language of the Section is very clear and it  empowers the State Government to sanction the proposal of the  Municipal Corporation regarding modification of Development  Control Rules "with or without any changes as it may deem fit".    These words are important and cannot be ignored.  They have to be  given their natural meaning. In Union of India v. Hansoli Devi (2002)  7 SCC 273 it has been held that it is a cardinal principle of  construction of a statute that when the language of the statute is plain  and unambiguous, then the Court must give effect to the words used  in the statute and it would not be open to the court to adopt a  hypothetical construction on the ground that such construction is more  consistent with the alleged object and the policy of the Act.  In Nathi  Devi v. Radha Devi Gupta (2005) 2 SCC 271 it was emphasized that   it is well settled that in interpreting a statute, effort should be made to  give effect to each and every word used by the legislature.  The courts  always presume that the legislature inserted every part of a statute for  a purpose and the legislative intention is that every part of the statute  should have effect.  In Dr.Ganga Prasad Verma v. State of Bihar  (1995) Supp. (1) SCC 192 it has been held that where the language of  the Act is clear and explicit, the Court must give effect to it, whatever  may be the consequences, for in that case the words of the statute  speak the intention of the legislature. Therefore, the view taken by this

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Court in the judgment and order dated 5.5.2004 that the State  Government had full authority to make any changes or add any  condition in the proposal of the Municipal Corporation is perfectly  correct.  In fact, on the plain language of the statute no other view can  possibly be taken.  

10.     The High Court also accepted the contention of the writ  petitioners based on the ground of promissory estoppel. The  Development Control Rules are framed by the State Government in  exercise of power conferred by Section 158 of the Act.   Consequently  they must be treated as if they were in the Act and are to be of the  same effect as if contained in the Act and are to be judicially noticed  for all purposes of construction and obligation.  [See State of U.P. v.  Babu Ram Upadhya AIR 1961 SC 751 and State of Tamil Nadu v.  Hind Stones AIR 1981 SC 711 (para 11)].  If the Development  Control Rules have the same force as that of a statute, then no  question of promissory estoppel would arise as the principle is well  settled that there can be no estoppel against a statute.  We are in  complete agreement with the view taken earlier by this Court and  there is not even a slightest ground which may cast any doubt  regarding the correctness of the earlier judgment.    

11.     As was observed by this Court in Col. Avtar Singh Sekhon v.  Union of India (1980) Supp. SCC 562 review is not a routine  procedure.   A review of an earlier order is not permissible unless the  Court is satisfied that material error, manifest on the face of the order  undermines its soundness or results in miscarriage of justice.   A  review of judgment in a case is a serious step and reluctant resort to it  is proper only where a glaring omission or patent mistake or like  grave error has crept in earlier by judicial fallibility .....  The stage of  review is not a virgin ground but review of an earlier order which has  the normal feature of finality.   

This view has been reiterated in Devender Pal Singh v. State  (2003) 2 SCC 501 (para 16).  This being the legal position, there is  absolutely no ground for review of the judgment and order dated  5.5.2004.  The review petitions are, therefore, liable to be dismissed.  

12.     Learned counsel for the review petitioners next submitted that  after the clarification had been issued by the Chief Secretary of the  Urban Development Authority of the State Government by the letter  dated 11.6.1998 and consequent circular had been issued by the Pune  Municipal Corporation on 20.7.1999 which provided that a maximum  of 0.8 of the total floor space area of the receiving plot shall be  permitted, large number of land owners whose properties were  reserved for public amenities like roads, schools, gardens, etc. were  encouraged to hand over their lands to the Pune Municipal  Corporation free of cost, in the expectation of fetching higher price for  this TDR as a result of greater utilization to the extent of 0.8 being  permissible as against the earlier 0.4 FSI.   Similarly, the developers  while negotiating for buildable properties considered total FSI  potential of 1.8 (1 + 0.8 TDR, FSI) as against 1.4 FSI and have  accordingly paid much higher consideration towards the land.   Many  developers commenced their projects after sanctioning regular 1.0 FSI  and as per the Pune Municipal Corporation procedure applied for  further 0.8 TDR, FSI.    In fact, many builders and land owners had  got their entire project lay out approved from the Corporation with 1.8  FSI and had constructed some buildings upto the sanctioned height.    Many such plans were approved  by the Pune Municipal Corporation  between the period 20.7.1999 and 21.11.2001 when the second  circular was issued adopting a different stand.  It has been urged that  refusal of Pune Municipal Corporation to honour its own lay out plan  has given rise to disputes between developers and buyers of the flats  and also between the developers and land owners.   The difficulty  being faced by the review petitioners appears to be quite genuine as

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the stand of Pune Municipal Corporation between the period  20.7.1999 to 21.11.2001 was different and building plans were  sanctioned without giving effect to the words "from the very said  plot" occurring towards the end of clause (b) in D.C.R.-2.4.11. A  reply affidavit has been filed by Shri Prashant Madhukar Waghmare,  City Engineer, Pune Municipal Corporation giving statement of TDR  cases wherein an excess of TDR was claimed during the period  20.7.1999 to 21.11.2001.  The sanction of plan and construction  undertaken have been broadly described in 7 categories and category  nos.1 to 4 are as under : :-   S. No. Description Total Cases Total  sanctioned  area (in sq.  meters) Excess  TDR  utilized (in  sq. meters) 1. Details of construction works for  which the final completion  certificate was granted after  21.11.2001, wherein the original  sanction for construction by the  Corporation was in excess of 0.4  TDR.   55 213763.89  35544.66 2. Details of construction works for  which the part completion  certificate was granted after  21.11.2001, wherein the original  sanction for construction by the  Corporation was in excess of 0.4  TDR.    9  92287.14  20073.25 3. Details of construction works for  which the completion certificate  was granted between 20.07.1999  to 21.11.2001, wherein the  original sanction for construction  by the Corporation was in excess  of 0.4 TDR.   14   31124.47    4676.57 4. Details of construction works for  which no completion certificate  has been granted so far, wherein  the original sanction for  construction by the corporation  was in excess of 0.4 TDR    5    8555.62

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  1600.88

It will be seen that in all the above mentioned four categories  the Municipal Corporation gave sanction for construction in excess of  0.4 TDR and even completion certificates were issued for serial nos.1  to 3.    

13.     During the course of hearing Mr. Makarand D. Adkar, learned  Advocate for Pune Municipal Corporation, on instructions received  from the Commissioner, Pune Municipal Corporation, has made a  statement that having regard to the facts and circumstances of the  case, the respondent corporation will have no objection if the  constructions made as enumerated in category nos.1 to 4 described  above are treated to be not in violation of clause (b) of D.C.R.-2.4.11.  In the written submission filed by Mr. Vishwajit Singh, Advocate,  learned counsel for Pune Municipal Corporation, it is stated that the  Corporation does not have objection if the four categories of  construction mentioned above are given relief in view of the fact that -

a       The building plans have been sanctioned by the Corporation

b       In most of the cases, the completion or the part completion  certificates have been issued by the Corporation.  

c       In all the cases, the TDR has been loaded/utilized and  commencement certificate has been issued for the particular  projects.

d       In all the cases, the construction has taken place with sanction  of Corporation.     

       The statement made by Mr. Makarand D. Adkar, Advocate, is  accordingly taken on record.  

14.     The review petitions are dismissed, recording the submission on  behalf of the Pune Municipal Corporation that the constructions  mentioned in categories 1 to 4 above will not be treated to be in  violation of clause (b) of D.C.R.-2.4.11.