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2007 (5) TMI 601
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.... 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 th....
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.... 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 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 t....
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.... 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 State to do so and therefore inclusion of those words in the Regulation is illegal. ........ ......................
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.... 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 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 absol....
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.... 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 principl....
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....hi 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 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 con....
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....xtent 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 the stand of Pune Municipal Corporation between the period 20.7.1999 to 21.11.2001 was different and building pl....