Bilal Nazki, J.
1. Earlier this petition was filed on the ground of inaction on the part of the respondents to take a decision. Thereafter, it appears that decision was taken and the petition is now challenging the Government Notification dated 3-2-2007.
2. This petition has been filed by a society which claims that it was in possession of the land bearing Survey No. 12 (Part), situate at Kohdhava Khurd, Pune. The respondent No. 2 published a draft development plan for the City of Pune. In the said draft, the land mentioned above was shown as reserved for public garden. The petitioner raised objection to the said reservation by submitting various representations. The draft development plan was sanctioned by respondent No. 1 in 1975. The layout of the said land was approved in 1973 and 1975. Earlier to this, there was a sanctioned development plan of the year 1966, in which the petitioner's land admeasuring 3.54 acres was shown to be reserved for a garden. While sanctioning the layout of the said land, respondent No. 2, according to the petitioner, compelled it to show the land as public amenities, even though there was no reservation. All the areas under the reservation were never actually shown in the development plan but again in the draft development plan (revised) for the year 1981 and 1991, the reservation of the garden was continued and also some part of the land was shown in the hill-top and hill-slope zone. The land was then sought to be acquired and the Attorney of the petitioner submitted a proposal for grant of TDR/DRC to respondent No. 2 in lieu of compensation, as provided under Section 126 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter called as 'the MRTP Act'). According to the petitioner, the proposal was scrutinized, opinion was sought from various authorities and all the authorities concerned showed their willingness to grant TDR/DRC in lieu of the petitioner's entitlement to compensation. The petitioner claims that in view of the Development Control Regulation No. N-2.4.17, it was entitled to TDR/DRC. The petitioner further contends that regarding acquisition, there were litigations going on between the petitioner and the respondents and the legal advisor of respondent No. 2 informed the petitioner that if it withdraws all the proceedings initiated in the Court of law, it would be granted the TDR/DRC. The petitioner accordingly withdrew all the litigations filed by it.
3. The facts are not in dispute. Various affidavits in-reply were filed. The first reply is filed by the Deputy Director of Town Planning. She submits that the original development plan of the City of Pune was approved by the Government in 1996 and the land under reference was not included and therefore was not reserved for garden. Thereafter, the Pune Municipal Corporation prepared and submitted to the Government a development plan for additional area of Pune, which was sent back by the Government to the Pune Municipal Corporation, without approving the same and with a direction to prepare afresh a revised development plan for the entire limit of the Pune Municipal Corporation. As per the directive of the Government, the Pune Municipal Corporation prepared a draft development plan for original area and additional area limit afresh and submitted the same to the Government for approval. The said development plan was sanctioned by the Government in 1987 under the provisions of the MRTP Act. In the revised sanctioned development plan, the land under reference is shown as 'existing garden'. The acquisition of the land under reference for the purposes of garden was completed under the provisions of the Land Acquisition Act, 1894 (hereinafter called as 'the LA Act') and not under the MRTP Act. In the land acquisition process, Section 4 Notification was published on 28-1-1982 and there was no provision for grant of transferable development rights in lieu of compensation. In addition, the intention to grant 'transferable development rights' is to acquire the land reserved in the sanctioned development plan for public purposes, without imposing financial burden on the planning authority. The land under reference was acquired before the Transferable Development Rights Regulations were made applicable. The Regulation bearing No. N-2.4 was made applicable to the area within the jurisdiction of the Pune Municipal Corporation vide Government Notification dated 5-6-1997. The compensation for acquisition of the land under reference had been offered to the petitioner in 1987, when the award was passed. But the same has not yet been accepted by the petitioner. The compensation offered to the petitioner is a lawful compensation under the LA Act.
4. Additional counter was filed later on by the same authority in which it is stated that by order dated 3-2-2007 the Government of Maharashtra issued directions under Section 154 of the MRTP Act.
5. In the present case, the land in question has been acquired under the LA Act and the award was passed in 1987. The possession of the land has been taken and handed over to the Pune Municipal Corporation. It is submitted that the directions issued under Section 154 of the MRTP Act were not applicable to the present case where the acquisition had been completed under the LA Act. Now in the light of these pleadings, this Court will have to interpret the modified DCR No. N-2.4.17(ii). It lays down, that it will apply to cases where possession of the land has been delivered without having received part or full compensation under either the Maharashtra and Town Planning Act, Bombay Provincial Municipal Corporation Act, private negotiation or under any Act for the time being in force within 12 years prior to 30-9-1993. The learned Counsel for the petitioner submits that bare perusal of this regulation would show that it is immaterial as to whether the land was delivered either in terms of the Maharashtra and Town Planning Act, Bombay Provincial Municipal Corporation Act, private negotiation or under any Act which was in force. The land should have been delivered within 12 years prior to 30-9-1993. The land, according to him, admittedly, was acquired under the LA Act and the possession had been delivered within 12 years prior to 30-9-1993, and in terms of Regulation No. N-2.4.17(i) grant of TDR was mandatory if a request was made.
6. The respondents, on the other hand, contend that this provision would not apply where the land was not reserved in the development plan. The learned Advocate General contended that the land in question was not reserved for a garden in the development plan under the MRTP Act but the land was part of the layout submitted by the petitioner for the development of the land wherein it was shown as a garden, which was approved by respondent No. 2 in 1973. The development permission was granted on the said assurance of the petitioner. But we fail to understand as to how it would make a difference whether the land was part of a development plan reserved by the Government or was part of the development plan submitted by the petitioner in which the land in question was shown as a garden. The modified DCR No. N-2.4.17(ii) does not make any such distinction. It only offers TDR in lieu of compensation at the request of the owner, provided the land was acquired or taken possession of 12 years prior to 30-9-1993. The second submission made was that TDR could not be claimed when the land was not acquired by an agreement between the planning authority and the owner. No such stipulation can be seen in Regulation No. 2.4.17. The petitioner claims, which has not been disputed, that owners similar to him were granted TD Rs. This argument is replied by the respondents by submitting that an illegality even if committed cannot be asked to be committed again and Article 14 in such cases would have no application. We have no quarrel with the principle but the question is, whether the cases in which TDRs were granted were granted in accordance with law or not? If Regulation No. 2.4.17 does not make a distinction between the lands which were reserved in the development plan or which were reserved in the layout by the owners themselves, how can such a distinction be allowed to be made by the respondents. Another argument is that Regulation No. 2.4.17 cannot override the statutory provisions of the MRTP Act. We have not been shown which of the provisions of the MRTP Act can be said to override the Regulation No. 2.4.17. The Regulation No. 2.4.17 has been framed by the respondents themselves and they cannot perhaps claim that this Regulation is in contravention of the provisions of the MRTP Act. There is no doubt that the Regulations have been framed in exercise of power under Section 22(m) of the MRTP Act and are in the nature of subordinate legislation and these Regulations have to operate within the framework of the parent legislation. But we fail to understand as to how Regulation No. 2.4.17 is ultra vires of the provisions of Section 126 of the MRTP Act. Section 126 is a provision which lays down the methodology for the acquisition of land required for public purposes specified in plans. Therefore, an argument is being made that the land was not acquired for the purpose specified in the plan, though we fail to understand as to why it cannot be said that the land in question was for public purpose specified in the plan even if it was mentioned as a garden in the layout submitted by the petitioner. But even then the land in the present case was not acquired at all under the MRTP Act It was definitely acquired under the LA Act for public purpose. Land cannot be acquired under the LA Act if it is not acquired for a public purpose. Therefore, the distinction which is sought to be made by the learned Advocate General that the land acquired, which is not part of the plan, would not be land as mentioned in Regulation No. 2.4.17, cannot be accepted. As it is already mentioned that Regulation No. 2.4.17 does not make any such distinction.
7. Various judgments have been relied upon by the learned Counsel for the petitioner. In a judgment in the matter of Pune Municipal Corporation and Anr. v. Promoters and Builders Association and Anr. reported in : (2004) 10 SCC 796, the Supreme Court held thus:
5. Making of DCR or amendments 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 the 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 the 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 v. Cynamide India Ltd. : (1987) 2 SCC 720, SCC paras 5 and 27. See generally H.S.S.K. Niyami v. Union of India : (1990) 4 SCC 516 and Canara Bank v. Debasis Das : (2003) 4 SCC 557 : 2003 SCC (L&S;) 507.) 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 Supreme Court was dealing with the same set of DCRs under the MRTP Act.
8. Coming to the impugned letter dated 22-3-2007, it is submitted by Shri K.K. Singhvi, learned senior counsel appearing for the petitioner that Regulation No. 2.4.17 is in the realm of subordinate legislation. Therefore, no direction contrary to it could be given by the Government in terms of Section 154 of the MRTP Act. We have perused the Notification dated 3-2-2007. The Notification itself leaves no room to deny that the Notification was issued under Section 154 as one of the paras specifically mentions that. Curiously it also gives certain directions which it mentions as 'New Rule' and the new Rule (1) is, 'Transferable Development Rights (TDR) shall not be permissible once an award has been declared under the acquisition process and or the possession has already been delivered to the Municipal Corporation under any Act.' The new Rule (4) says, 'Pending the approval to the aforesaid modification the new rule mentioned hereinabove shall come into force with effect from the date of issue of this notification.' The new Rule (3) says, 'After completing the procedure as laid down under Section 37(1) of the said Act Municipal Corporation shall submit the said modification proposal to the Government for final sanction.' In effect, this Notification appears to be a recommendation for modifying the Regulation. Although this Notification was issued in 2007, but on the date of hearing it was conceded that there was no such approval granted by the Government and this Notification amounts to modifying Regulation No. 2.4.17 which could not have been done in exercise of power under Section 154 of the MRTP Act. Shri Singhvi refers to the judgment of the Supreme Court in Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr. reported in : (2003) 5 SCC 413 and more particularly to the observations in para 51 thereof. The said observations read thus:
A direction of the State Government in terms of Section 154 of the Act cannot supersede the statutory provisions contained either in the main enactment or the statutory regulations. The State of Maharashtra had absolutely no jurisdiction to issue any directive contrary to the statute or the statutory regulations.
9. The learned Advocate General, on the other hand, has relied on the decision of the Supreme Court in the matter of Ekta Shakti Foundation v. Govt. of NCT of Delhi reported in : AIR 2006 SC 2609 : 2006 AIR SCW 3601, to canvass that that the principle of equality cannot be applied to legitimise illegal actions. Another judgment relied upon is in the matter of Union of India and Anr. v. Cynamide India Ltd. and Anr. etc. reported in : AIR 1987 SC 1802, to canvass with regard to applicability of principles of natural justice in cases of any inquiry contemplated under a legislation or a subordinate legislation. We do not think that these judgments will carry us anywhere. The other judgments relied upon are in the matters of Bombay Environmental Action Group and Anr. v. State of Maharashtra and Ors. reported in 2001 (4) Mh.L.J. 260 and Swadeshi Cotton Mills v. Union of India reported in : (1981) 1 SCC 664. These judgments, in our view, are not relevant for the purpose of deciding the controversy in the present petition.
10. The Notification dated 22-3-2007 is a consequential notification to the Notification dated 3-2-2007. Since we are of the view that the Notification dated 3-2-2007 is illegal and ultra vires to the Regulations, the Notification dated 22-3-2007 is also illegal and ultra vires to the Regulations.
11. For the reasons aforesaid, we allow the writ petition, quash the Notification dated 3-2-2007 and direct the respondents to grant TDR to the petitioner in terms of Regulation No. 2.4.17. The petition accordingly stands disposed of.