Hari Krishna Mandir Trust Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
property - modification - sections 86 and 88 of the maharashtra regional and town planning act - petitioner purchased property - divided into four parts - name of municipal corporation was shown as owner of internal road which was part of plot - petitioner applied for sanction for making modification under section 91 (2) - urban development department directed respondents to cancel internal road and to merge its area in adjoining sub-plots - respondents by impugned order refused to give sanction for making modification - hence, present petition - held, petitioner never complained that land not vest with municipal corporation - although petitioner accepted this position for long time - power under section 91(2) can be exercised only if state government satisfied that variation required was not substantial - change of public road into private road was variation of substantial nature - petition dismissed - section 34: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the act bombay court fees act (36 of 1959), schedule i, article 3, schedule ii, article 1(f)(iii) held, according to article 3 of schedule i, on any plaint, application or petition or memorandum of appeal for setting aside or modifying an award, same court fee is payable as is payable on a plaint or memorandum of appeal under article 1. thus, when an award is challenged by a plaint, application, petition or memorandum of appeal, court fee is payable on ad valorem basis. but from this requirement of payment of court fee on ad valorem basis, article 3 excludes an application or petition or memorandum of appeal filed in civil or revenue court challenging any award made under the arbitration act, 1940.thus, the provisions of article 3 of schedule 1 do not apply when an application is filed or appeal is filed challenging an award made under the arbitration act, 1940. thus the provisions of article 3 of schedule i do not apply when an application is filed challenging an award made under the arbitration act, 1940. the question, therefore, that arises for consideration is whether reference to the provisions of 1940 act found in article 3 of schedule i of the bombay court fees act can be said to include reference to the 1996 act. perusal of the provisions of section 8 of general clauses act shows that where by a central enactment any provision of a former enactment is repealed and re-enacted with or without modification then reference in any other enactment to the provisions so repealed shall, unless a different intention appears, be construed as references to the provisions so re-enacted. in the present case, it is common ground that the former enactment is the 1940 act, the new enactment is the 1996 act and any other enactment is the bombay court fees act, the only provision of the 1940 act referred to in article 3 of schedule 1 of the bombay court fees act is the provisions of section 33 of the 1940act and bare comparison of that provision with the provisions of sub-section (1) of section 34 of the 1996 act shows that the provision of section 33 of 1940 act is repealed and re-enacted in sub-section (1) of section 34 of the 1996 act with slight modification. therefore, reference to the provisions of section 33 of the 1940 act in article 3 of schedule-i of the bombay court fees act has to be construed, in view of the provisions of section 8 of the general clauses act, as reference to the provisions of section 34 of the 1996 act. so far as an appeal filed under section 37 of the 1996 act is concerned, perusal of section 37 shows that an appeal is provided to the appellate court against an order setting aside an arbitral award or refusing to set aside an arbitral award under section 34. thus, as the provisions of article 3 of schedule-i do not apply to an application or petition filed under section 34 of the 1996 act, they will also not apply to the memorandum of appeal filed to set aside or modify an award made by the arbitrator under the 1996 act. in other words nothing contained in article 3 of schedule-i of the bombay court fees act applies to an application, petition or memorandum of appeal to set aside or modify any award made under the 1996 act as it does not apply to an application or petition or memorandum of appeal to set aside or modify an award made under the arbitration act, 1940. perusal of the provisions of section 8 of the general clauses act shows that references in any other enactment to a provision in a former enactment is to be construed as reference to re-enacted provision in the new enactment unless a different intention appears. the different intention may appear either in the new enactment or in the other enactment. nothing was pointed out either in the 1996 act or in the bombay court fees act which can be construed as a different intention or which will show that it was not the intention of the maharashtra legislature to exclude an application or petition or memorandum of appeal filed in court to set aside or modify an award made under the 1996 act, from the provisions of article 3 of schedule-i of the bombay court fees act. it appears that the intention behind excluding an application made, challenging the award made under the 1940 act, from requirement of payment of ad valorem court fee which is required to be paid if the same litigant filed a suit on the same subject matter, was to encourage a litigant to go for arbitration instead of filing a suit. nothing has been pointed out to show that ther4e is any change in that legislative policy. on the contrary, from the preamble of the 1996 act it is clear that the policy of the legislature is to encourage people to adopt the mode of arbitration for resolving disputes. article 3 of schedule-i of the bombay court fees act does not apply to a petition, application or memorandum of appeal filed for challenging an award made under the 1996 act, and court fee on a petition filed under section 34 of the 1996 act challenging an award in high court is payable according to article 1(f)(iii) of schedule ii. section 37: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. schedule i, article 3 & schedule ii, article 1(f)(iii): [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on petition under section 34 of the arbitration & conciliation act, 1996 - held, when a petition under section 34 is to be filed before a principal civil court of original jurisdiction which is not a high court, the question arises which article of either first schedule or second schedule would apply. in so far as the challenge to an award made under the 1940 act is concerned, an application under section 33 of that act could be made to a civil court and therefore, payment of court fee was governed by article 1(a) of schedule ii. this was so because the application was to be presented to the court of civil judge which was not a principal civil court of original jurisdiction. but now because of change of definition of term court in the 1996 act, a petition has to be presented, challenging an award made under the 1996 act in terms of the provisions of section 34 thereof, before the principal civil court of original jurisdiction. no entry either in the first schedule or in the second schedule was pointed out which applies to an application or petition to be made before the principal civil court of original jurisdiction, and therefore, when a litigant wants to file petition before a principal civil court having original jurisdiction which is not high court, challenging an award made under the 1996 act, no court fee under bombay court fees act is payable because of absence of a general or specific provision. therefore, it can be said that no court fee under the bombay court fees act is payable when a petition under section 34 challenging an award is filed before any principal civil court of original jurisdiction which is not high court. schedule ii, article 13: [d.k. deshmukh, s.j. vazifdar & j.p. devadhar, jj] court fee on appeal under section 37 of the arbitration & conciliation act, 1996 - held, court fee is payable according to article 13 of schedule ii of the bombay court fees act. - 531 passed on 28th november, 2000 recommended the general body to vary the scheme under section 91 of the act. the petitioner accepted the final scheme which came into effect from 15th august, 1979 and thereafter did not complain that the land did not vest with the corporation, but submitted to the government that the scheme be varied and on 25th april 2000 the government directed the corporation to undertake variation of the said scheme under sub-section (2) of section 91 of the maharashtra regional and town planning act. 11. in the light of the fact that from the year 1979 till the year 2000 the petitioner never complained that the land did not vest with the pune municipal corporation. (2) if, on receiving such application or otherwise, the state government is satisfied that the variation required is not substantial, the state government shall, by notification in the official gazette, authorise or direct the planning authority to prepare a draft of such variation and publish a notice in the official gazette and in such other manner as may be prescribed stating that a draft variation has been prepared. sub-section (1) of section 91 of the act gives power to the government to make variation or modification of a minor nature and in our view under sub-section (2) of section 91 if the state government is satisfied that the variation was not substantial, shall by causing for issuance of notification in the official gazette, authorise or direct the planning authority to prepare a draft of such variation. because the power under section 91(2) can be exercised only if the state government was satisfied that the variation required was not substantial and in our view the change of public road into a private road was a variation of substantial nature.nazki bilal, j.1. by this writ petition, the petitioner assails the order passed by respondent no. 1 on 3rd may, 2006. notice before admission was issued to the respondents. counter affidavits have been filed and the matter has been heard for final disposal.2. the facts leading to filing of this petition as narrated by the petitioner, are:3. the property, which is the subject-matter of the writ petition, originally belonged to one thorat family. one mrs. krishnabai gopalrao thorat sold the property comprising final plot no. 473 and 473-b admeasuring 4910 sq. mtrs. on 29th december, 1956 in favour of swami dilipkumar roy and mrs. indira devi by a registered sale deed. this property was later on transferred on 12th march, 1997 to the petitioner trust. final plot no. 473, according to the petitioner, had been divided into four plots being final plot nos. 473-b1, 473-b2, 473-b3 and 473-b4. the order of division of this plot was passed on 20th august, 1970. from 4th march, 1986 the name of respondent no. 3, namely, pune municipal corporation, was shown as the owner with respect to an internal road, which originally was part of the plot. the petitioner further contends that by letters dated 29th june, 1996, 4th january, 1997 and 18th january, 1997 the town planning department admitted and accepted the facts that the internal road has never been acquired by the pune municipal corporation. they also admitted, according to the petitioner, that the pune municipal corporation was wrongly shown and the road was not held by the pune municipal corporation. the town planning scheme no. 1 was sanctioned on 5th july, 1979 by which final plot no. 473-b have been shown to have been divided into final plot nos. 473-b 1,473-b2, 473-b3 and 473-b4 and in addition to that another approach road had been shown. no separate number was given. on 25th april, 2000, respondent no. 1 through the urban development department directed respondent nos. 3 and 4 to cancel the internal road for which the pune municipal corporation's name is shown in the layout of the final plot no. 473-b and to merge its area in the adjoining sub-plots. the municipal commissioner was approached for variation in the plan and on 6th july, 2001 he invited objections, which was published in government gazette on 23rd august, 2001. notice was again issued on 8th september, 2004 and was published in government gazette on 16th september, 2004. similar notice was also published in daily newspaper on 29th october, 2004. the resolution no. 611 was passed on 23rd march, 2007 by the general body of respondent nos. 3 and 4 resolving that they would not claim any right in respect of final plot no. 473-b4. on 7th april, 2006, after conducting enquiry the municipal commissioner wrote a letter to respondent no. 1 and respondent no. 2 and proposal was submitted for approval for making the variation in respect of town planning under the provisions of the maharashtra regional and town planning act. respondent nos. 1 and 2 passed the impugned order and refused to give sanction for making modification under the provisions of section 91 of the maharashtra regional and town planning act. therefore, the writ petition.4. on the basis of these assertions in the writ petition, the petitioner contended that since the pune municipal corporation had clearly admitted that it was not owner of the property the impugned order was bad. it is also contended that by virtue of section 88 of the maharashtra regional and town planning act, since the word 'vest' is not used, it cannot be said that the full ownership had got transferred to the planning authority. this section has to be read along with section 126 of the maharashtra regional and town planning act and unless an award was passed the land could not have been owned by the planning authority. it is contended that the arbitrator was not appointed in terms of section 91(6). it is also contended that the road was internal road and was not a public street. after amendment of the writ petition, the petitioner had also submitted that the impugned order had been passed by the respondents without giving an opportunity of being heard to the petitioner.5. respondent nos. 1 and 2 have filed counter affidavit through the deputy director of town planning and respondent no. 3 has filed counter affidavit through the city engineer.6. in the first instance, we make a reference to the reply affidavit filed by respondent no. 3 in which it is stated that the town planning scheme no. 1 was sanctioned by the state government by order dated 5th july, 1979 and it came into force with effect from 15th august, 1979. divisions were made in this and road measuring 444.14 sq.mtrs. was allotted to the ownership of the pune municipal corporation and having regard to section 88(a) of the maharashtra regional and town planning act the area admeasuring 444.14 sq. mtrs. was allotted to pune municipal corporation and vested in respondent no. 3. it is stated that the owners of final plot no. 473-b2 and 473-b3 requested the state government to direct the pune municipal corporation to vary the town planning scheme to delete area admeasuring 444.14 sq. mtrs. of road and include the said area in adjacent final plot no. 473-b2 to 473-b4. the state government by its order dated 25th april, 2000 directed the pune municipal corporation to undertake the variation of the scheme as per section 91(2) of the act to merge the said road area in final plot nos. 473-b2 to 473-b4. it is stated that pursuant to this direction of the government, the approval of general body for varying town planning scheme under section 91 of the maharashtra regional and town planning act was sought. the improvement committee under resolution no. 531 passed on 28th november, 2000 recommended the general body to vary the scheme under section 91 of the act. public notice was issued and the report was submitted to the state government on 16th june, 2003. however, the additional secretary of urban development department of the government of maharashtra addressed a communication dated 20th may, 2004 to the municipal commissioner stating therein that the public notice was issued in marathi language and not in english language in the government gazette and local newspapers. he, therefore, called upon the municipal commissioner to send proposal only after removal of the infirmities. it is further contended that thereafter dr. vishwas s. patil and dr. abhijeet v. patil filed a writ petition no. 6240 of 2004, in this court for striking down the notice dated 3rd january, 2002 published in daily sakal (newspaper) proposing to surrender the pune municipal corporation road to private plot holders among others. the high court directed the respondents therein to decide the issue under section 91 of the maharashtra regional and town planning act. accordingly, public notice was published in english language in the maharashtra government gazette on 16th september, 2004 and also in newspapers on 1st november, 2004. the opinion of the general body was communicated by the municipal commissioner to the additional secretary of the urban development department. the government considered the objection of the pune municipal corporation and passed the impugned order on 3rd may, 2006.7. the counter affidavit filed on behalf of respondent nos. 1 and 2 does not raise any dispute with regard to the facts. but they claim that in terms of section 83 of the act the land had vested with the pune municipal corporation and government did not find it feasible to make changes in this in accordance with section 91 of the act.8. now in the light of pleadings, the submissions made by the learned counsel for the petitioner and the learned a.g.p. appearing for respondent nos. 1 and 2 and the learned counsel appearing for respondent nos. 3 and 4 are to be examined.9. much stress is laid by the learned counsel for the petitioner that the pune municipal corporation always maintained that the property did not belong to the corporation.10. a reference is made to the government order dated 25th april, 2000. this order in fact goes against submissions that are now being made by the petitioner. this order says, amongst other things, 'and whereas, the owner of the final plot no. 473-b2 and 473-b3 has requested the government to direct the pune municipal corporation to vary the said scheme to delete the said road and include the area in adjacent final plot no. 473-b2 to 473-b4'. this shows that it was never the case of the petitioner that the land had not vested with the pune municipal corporation which is now the main argument before this court to assail the impugned order. the petitioner accepted the final scheme which came into effect from 15th august, 1979 and thereafter did not complain that the land did not vest with the corporation, but submitted to the government that the scheme be varied and on 25th april 2000 the government directed the corporation to undertake variation of the said scheme under sub-section (2) of section 91 of the maharashtra regional and town planning act.11. in the light of the fact that from the year 1979 till the year 2000 the petitioner never complained that the land did not vest with the pune municipal corporation. therefore, it is not fair for the petitioner to contend at this stage that the land never vested with the pune municipal corporation although the petitioner had accepted this position for a long time. section 88 of the maharashtra regional and town planning act, 1966, lays down:88. effect of final scheme.- on and after the day on which a final scheme comes into force:(a) all lands required by the planning authority shall, unless it is otherwise determined in such scheme, vest absolutely in the planning authority free from all encumbrances;(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by arbitrator;(c) the planning authority shall hand over possession of final plots to the owners to whom they are allotted in the final scheme.bare perusal of section 88(a) would make it clear that all lands required by the planning authority shall absolutely vest in the planning authority free from all encumbrances after the final scheme comes into force. therefore, the question that unless an award was passed in terms of section 126 of the maharashtra regional and town planning act, the vesting was not complete, is without any basis.12. now we come to the impugned order which has been passed under section 91 of the maharashtra regional and town planning act. section 91 of the maharashtra regional and town planning act, reads as under:91. power to wry scheme on ground of error, irregularity or informality.(1) if after the final scheme has come into force, the planning authority considers that the scheme is defective on account of an error, irregularity or informality or that the scheme needs the variation or modification of a minor nature, the planning authority may apply in writing to the state government for variation of the scheme.(2) if, on receiving such application or otherwise, the state government is satisfied that the variation required is not substantial, the state government shall, by notification in the official gazette, authorise or direct the planning authority to prepare a draft of such variation and publish a notice in the official gazette and in such other manner as may be prescribed stating that a draft variation has been prepared.(3) the notice of preparation of a draft variation published under sub-section (2) shall state every amendment proposed to be made in the scheme, and if any such amendment relates to a matter specified in any of the sub-clauses (i) to (iii) of clause (b) of section 59, the draft variation shall also contain such other particulars as may be prescribed.(4) the draft variation shall be open to the inspection of the public at the office of the planning authority during office hours and copies of such draft variation or any extract therefrom certified to be correct shall be available for sale to the public at a reasonable price.(5) not later than one month of the date of the publication of the notice regarding preparation of draft variation, any person affected thereby may communicate in writing his objections to such variation to the state government, and send a copy thereof to the planning authority.(6) alter receiving the objections under sub-section (5), the state government may, after consulting the planning authority and after making such inquiry as it may think fit, by notification in the official gazette.(a) appoint an arbitrator, and thereupon the provisions of this chapter shall, so far as may be, apply to such draft variation, as if it were draft scheme submitted to the state government for sanction;(b) sanction the variation with or without modification; or(v) refuse to sanction the variation.(7) from the date of the notification sanctioning the variation, with or without modifications, such variation shall take effect as it were incorporated in the scheme.sub-section (1) of section 91 of the act gives power to the government to make variation or modification of a minor nature and in our view under sub-section (2) of section 91 if the state government is satisfied that the variation was not substantial, shall by causing for issuance of notification in the official gazette, authorise or direct the planning authority to prepare a draft of such variation. because the power under section 91(2) can be exercised only if the state government was satisfied that the variation required was not substantial and in our view the change of public road into a private road was a variation of substantial nature. sub-section (5) of section 91 lays down that after publication of notice, any person affected thereby may communicate in writing the objections to such variation to the government and after considering the objections, if any, received under section 91(5) and after consulting the planning authority and after making inquiry as it may think fit, it has three options; either to appoint an arbitrator or to sanction the variation with or without modification or refuse to sanction the variation.13. the state government considered and passed the impugned order and gave four reasons for rejecting the application for variation. even if the argument of the petitioner is accepted that the first ground in the impugned order was not correct, that the pune municipal corporation was the owner of the land, even then the other grounds remain that the impugned order was passed without following requirements of law. the learned counsel for the respondents submits that the requirements of law were followed and it was also observed that if the road was converted into a private road there would be no access available to the holders of the new plots of land.14. on the question of a hearing, the learned counsel for the respondent has drawn our attention to the judgment of the supreme court in the case of (pune municipal corporation and anr. v. promoters and builders association) reported in : (2003)12scc587 wherein section 37(2) was the bone of contention, which is para materia to section 91 as far as issuance of notices are concerned. since we have already quoted section 91, it will be profitable to quote the relevant portion of section 37, which reads thus: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.(1-a)...(1-aa)...(1-b)...(2) the state government may, make such inquiry as it may consider necessary arid 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.analysing this section, the supreme court held as under:4. 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.5. 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 source and it is intended to vest any in anybody. (union of india and anr. v. cynamide india ltd. and anr.) : [1987]2scr841 paragraphs 5 and 27. see generally (hssk niyami and anr. v. union of india and anr.) : [1990]3scr862 and (canara bank v. debasis das) : (2003)iillj531sc . 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) : 1990crilj788 . therefore, the view adopted by the high court does not appear to be correct.15. in so far as section 126 of the maharashtra regional and town planning act is concerned, this question has also been considered by the division bench of this court in the case of (zahir jahangir vakil and ors. v. pune municipal corporation and anr.) reported in 2006(4) all.m.r. 326, and it held, 'this provision of section 126(2) providing for acquisition of the land will apply prior to the said town planning scheme is finally sanctioned under the provisions of section 86 of the maharashtra regional and town planning act, 1966'. the reasons have been given in detail in paragraph 24 of the said judgment and this judgment also lays down that vesting under section 88 of the maharashtra regional and town planning act is absolute and free from all encumbrances. in paragraph 27 of the judgment in zahir jahangir vakil (supra) this court says:27. thus, the meaning of the word 'vest' has to be ascertained on the basis of the setting in which it is used and the context in which it is provided under the provisions of a particular statute. in our view, the provisions of section 88 provide for a total and complete vesting and de hors of any right, title and interest in favour of any of the original plot holders. this is so because the provisions of section 88(a) provides for a vesting absolute and free of all encumbrances. it would not be out of place to state that the word vesting' in light of section 88 of the m.r.t.p. act, 1966 itself also came up for consideration in the case of (laxminarayan r. bhattad and ors. v. state of maharashtra and anr.) 2003(5) bom.c.r. 549 [supra) in which also the supreme court while considering the provisions of the said m.r.t.p. act, 1966 section 88 held that vesting under section 88 is absolute and free of all encumbrances and no right survives of any party in respect of the original plot of land once the final town planning scheme is sanctioned under section 86 of the said m.r.t.p. act, 1966.16. for the aforesaid reasons, we find no merit-in the writ petition, which is hereby dismissed.