Satyabrata Seal Alias Dulu Vs. State of West Bengal and ors. - Court Judgment

Excerpt:
- maharashtra regional & town planning act, 1966 [act no. 37/1966]. section 45 & development control rules, 1967, rule 10: [k.g. balakrishnan, cji, lokeshwar singh panta & j.m. panchal, jj] deemed grant of permission to develop plot applicant seeking additional fsi under rule 10 was under consideration of authorities competent authority had no occasion to consider plans submitted by the applicant held, deemed provision applies only if the permission applied for is strictly in conformity with relevant dc regulations. applicants are not entitled to declaration that permission applied for was deemed to have been granted. declaration that applicants are entitled to additional fsi as claimed cannot also be granted as it falls within the discretionary power of government. -- sections 46 & 45 & development control rules, 1967, rule 10(2), environment (protection) act (29 of 1986), section 3 & environment (protection) rules 1986, rule 5(3)(d): coastal regulation zone notification dated 19.2.1991 permission for development of land held, the permission to develop land that falls in coastal regulation zone ii (crz-ii) category has to be granted as per development control rules, 1967. fat that the application for development has been made in 2005 i.e., much after new development control regulations had been enforced, notwithstanding. this is because of the notification issued by the ministry of environment and forest under the provisions of the environment protection act, 1986 regulating building activities in coastal zones which is known as coastal regulation zone notification. the said notification classifies the area within 500 meters of high tide land, into crz-i, crz-ii, crz-iii and crz-iv categories. the notification inter alia provides that buildings shall be permitted only on the landward side of the existing road and buildings and shall be subject to the existing local town and country planning regulations including the existing norms of floor space index. the ministry of environment and forest had clarified that the existing dc regulations applicable to crz-ii areas in mumbai would mean the dc rules, 1967. section 3 of the environment (protection) act, 1986 inter alia provides that the provisions of the act and any order or notification issued under the said act will prevail over the provisions of any other law. the phrase any other law will also include the mj.r.t.p. act, 1966. the notification dated february, 19, 1991 issued under the provisions of environment (protection) act, 1986 freezes the building activity in an area falling within crz ii to the law which was prevalent and in force as on february 19, 1991. the draft rules of 1989 would not, therefore, apply as they were not existing law in force and prevalent as on february 19, 1991. the plea that in view of the provisions of section 46 of the town planning act, 1966, the planning authority has to take into consideration the draft regulations of 1989 is devoid of merits. what is emphasised in section 46 of the m.r.t.p. act, 1966, is that the planning authority should have due regard to the draft rules. the legislature has not used the phrase must have regard or shall have regard. when the sanctioned d.c. regulations for greater bombay, 1991 do not apply to areas the sanctioned d.c. regulations for greater bombay, 1991 do not apply to areas covered within crz-ii, since those regulations came into force with effect from march 20, 1991, its previous draft also cannot apply. the draft published is to be taken into consideration so that the development plan is advanced and not thwarted. the draft development plan was capable of being sanctioned, but when the final development plan is not applicable, its draft would equally not apply as there is no question of that plan being thwarted at all. as far as development in the area covered by crz-ii is concerned, one will have to proceed on the footing that the draft plan after crz notification never existed. it is true that that dc rules, 1967 the norm of permissible fsi is laid down to be 1.33. however, under rule 10(2) of rules of 1967, the floor space indices specified may be permitted to be exceeded in respect of buildings of educational and medical relief institution as well as government and semi-government offices and luxury hotels with the previous approval of the government. the norm as set out regarding fsi in dc rules of 1967. it cannot, therefore, be said that the applicant who proposes to construct a luxury hotel would only be entitled to 1.33 fsi as fixed under rule 10(2) of development control rules of 1967. -- section 46 & development control rules, 1967, rule 10 (2): development of land grant of additional floor space index (f.s.i) to certain buildings - held, it is a discretionary power of government. exercise of discretion must be in consonance with article 14 of the constitution of india so that it does not suffer from the vice of arbitrariness. -- section 127 & environment (protection) act (29 of 1986), section 3 & environment (protection) act (29 of 1986), section 3 & coastal regulation zone notification dated 19.2.1991: de-reservation of plot - held, crz notification does not freeze application of section 127. therefore, it cannot be said that the plot reserved when crz notification was issued cannot be used by owner for any other purpose after de-reservation. - like manu bhusan roy prodhan in w.i.d. dua, j.1. satyabrata seal alias dulu has forwarded the present petition for a writ in the nature of habeas corpus from dum dum central jail in the state of west bengal. like manu bhusan roy prodhan in w. p. no. 252 of 1972 : reported in : 1974crilj401 pursuant to the order of detention dated august 21, 1971 he too was arrested on november 11, 1971 when the grounds of detention were also served on him. the fact of making the detention order was reported to the state government on august 23, 1971 and the state government approved the same on august 31, 1971. the same day the necessary report was submitted to the central government, his case was placed before the advisory board on december 9, 1971 and the board gave its decision on january 19, 1971. his representation was received by the state government on december 10, 1971 and was considered by the said government on january 18, 1972. the state government confirmed the detention order on february 2, 1972 and it was communicated to the detenu on february 7, 1972.2. the grounds of his detention are:1. on 16-4-71 at about 20.00 hours you along with others committed murderous assault on shri bulo das gupta on the road in front of the manila samiti at dhupguri, police station dhupguri, dist. jalpaiguri causing severe injuries to his persson. shri das gupta subsequently died in hospital. as a result of this murder committed by you people of the locality became highly terrorised and the public peace was greatly disturbed.2. on 18-7-71 at about 19.30 hours you along with others forcibly entered into dhupguri high school, police station dhupguri, district jalpaiguri and set fire to the school buildings causing irreparable loss to the school with the ulterior object of causing dislocation in the present system of education and to compel the school authorities to close down the same. as a result of the fire set by you, the teachers and the local people became panic stricken and the public peace was greatly disturbed.these two grounds are exactly similar to the grounds on the basis of which manu bhusan roy prodhan was detained in w.p. 252 of 1972 : reported in : 1974crilj401 . as a matter of fact it appears that the present petitioner was one of the persons who, according to the detaining authority, associated with manu bhusan, roy prodhan in the course of the two incidents mentioned in both these writ petitions. in w.p. 252 of 1972 we have held that ground no. 1 is irrelevant and that ground is not of an unessential nature and its exclusion from consideration might reasonably have affected the subjective satisfaction of the authority making the impugned order of detention. on this ground the present petition has also to be allowed.3. in the present case, how-ever, there is also an additional infirmity. the representation made by the petitioner to the state government was received by the state government on december 10, 1971 but was considered by it only on january 18, 1972. the explanation for this delay as stated in the counter-affidavit is as under:.that delay was also caused due to abrupt, increase in number of detention cases during that time as there was spate of anti-social activities by naxalite and other political extremists in the state. this explanation appears to be much too vague and indefinite and this would also have rendered the petitioner's detention thereafter illegal. however, as the grounds of detention are outside the statute the impugned order of detention is liable to be struck down on that ground alone. we had directed the petitioner's release on october 5, 1972. we have now record ed our reasons for doing so.