G.P.Mathur, J. - (1.) 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". The State of Maharashtra issued a directive under Section 37(1) 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." 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."
(3.) 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 and 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 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. 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 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." ;