Digambar Sakharam Tambolkar And Another v. Pune Municipal Corporation And Others

Sugla, J.:— By this petition under Article 226/227 of the Constitution of India, the petitioners have challenged the order dated 1st July, 1983 passed by the Municipal Commissioner, Pune Municipal Corporation and Planning Authority (hereinafter referred to as the ‘Planning Authority’) under Section 51 of the Maharashtra Regional and Town Planning Act, 1966 whereby the Planning Authority has revoked the permission granted to petitioner No. 1 for building construction vide Commencement Certificate No. 285 dated 9th June, 1982 in terms of which the permission was granted to petitioner No. 1 to construct a building on his plot of land No. CTS 517 with built up area: 2895 sq. ft., height permitted: 69’ and F.S.I: 4.45 Petitioner No. 1 is the owner of the plot CTS 517, Sadashiv Peth, Pune and petitioner No. 2 is the person with whom the first petitioner has entered into an agreement for development of plot of land under an agreement dated 10th June, 1982. The above agreement was, thus, entered into by the first petitioner with petitioner No. 2 on the day next to the day the Commencement Certificate for construction was issued to him. Respondent No. 1 is the Pune Municipal Corporation and respondent No. 4 is the State of Maharashtra. Respondent Nos. 2 and 3 are the officers of Pune Municipal Corporation, one of whom i.e Mr. A. Bongirwar is not only the Municipal Commissioner but also the Planning Authority under the Maharashtra Regional and Town Planning Act.

2. Briefly stated the relevant facts are that the development plan for Pune was approved on 16th August, 1966 by the State of Maharashtra, which has been operative during the material period. The first petitioner, who is the owner of plot CTS No. 517, Sadashiv Peth, Pune, made an application for sanction to his proposed plan of building construction to the Municipal Authority on 13th January, 1982. Commencement Certificate being No. 285 was issued to him on 9th June, 1982. As stated earlier on 10th June, 1982, petitioner No. 1 entered into an agreement with the second petitioner for the development of the said plot of land. On 20th October, 1982 the Planning Authority issued a notice under Section 51 of the M.R.T.P Act requiring the first petitioner to show cause why the permission granted to him for building construction on 9th June, 1982 should not be revoked, and thereafter passed an order on 4th November, 1982 under Section 51 of the M.R.T.P Act revoking permission granted to petitioner No. 1 on 9th June, 1982. The petitioner challenged the said order by filing a writ petition being Writ Petition No. 471 of 1983. However, the said petition was withdrawn on 25th February 1983 in view of the statement of the respondents withdrawing the said order of revocation. Soon thereafter the Planning Authority issued a fresh notice under Section 51 of the M.R.T.P Act on 15th March, 1983 requiring the first petitioner to show cause why the permission to construct a building on his plot should not be revoked as the permission granted violated:

(1) Existing sanctioned development plan read with bye-laws and directive dated 25-8-1981;

(2) The standardised bye-laws and development control rules published on 10-6-1982; and

(3) Draft revised development plan published on 18-9-1982.

The reply of the petitioners is dated 5th May, 1983. The petitioners were also heard. The impugned order under Section 51 of the M.R.T.P Act has been passed by the Planning Authority on 1st July, 1983 revoking the permission. The Planning Authority has held that the commencement certificate issued to the petitioners violates:

(i) The existing sanctioned Development Plan read with the Building Rules and Bye-laws thereunder read with the directive of Government under Section 154 issued on 25-8-1981 which form an integral part of the development plan;

(ii) the Draft Standardised Building bye-laws and Development Control Rules published on 10-6-1982; and

(iii) the Draft Revised Development Plan published on 18-9-1982 read with the aforesaid Draft Standardised Building Bye-laws and Development Control Rules which form an integral part of the Draft Development Plan.

After observing that the violation of even anyone of the above grounds is sufficient for the exercise of the powers under Section 51 of the M.R.T.P Act, the Planning Authority has further held that the case of the Petitioners does not fall within the exception contemplated under Section 51 of the M.R.T.P Act.

3. Shri Tulzapurkar, the learned Counsel for the petitioner and Advocate-General for the respondents have advanced detailed arguments in support of their rival contentions and have also relied on a number of authorities. The contentions raised on behalf of the petitioners broadly are: M.R.T.P Act itself recognises the distinction between the development plan as sanctioned, the development plan prepared but not sanctioned and development plan under preparation. It also makes distinction between minor modifications of a final development plan not changing the character of such a plan and the revision of the development plan. On a true and proper construction of Section 51 of the M.R.T.P Act, the Planning Authority can revoke permission if it is contrary to the development plan prepared or under preparation. The Planning Authority has no power to revoke the permission if the permission has been granted under the sanctioned development plan. According to the learned counsel, if Section 51 of the M.R.T.P Act is construed to cover a case of “sanctioned development plan,” the words “sanctioned development plan” will have to be read into the section, which is neither necessary nor permissible. The support in this regard has been taken from the Privy Council Decision in the case of Shrimati Renula Bose v. Rai Manmatha Nath, AIR 1945 P.C 108 at page 110. Relying on the observations made by the Supreme Court in the case of S. Narayanaswami v. G. Panneerselvam, (1972) 3 SCC 717 : AIR 1972 SC 2284 at page 2285, it is urged that grammatical meaning requires to be given to the expression used namely “development plan prepared and the development plan under preparation” in Section 51 of the M.R.T.P Act, 1966. It was stated that there will be no finality or sanctity to the sanctioned development plan if the Planning Authority is empowered to revoke the permission granted under a sanctioned development plan also. Alternatively, Shri Tulzapurkar pointed out that the Planning Authority has revoked the permission mainly on the ground that the land for which the permission was granted is not a ‘gaothan’ tenure. For coming to this conclusion, the Planning Authority has considered irrelevant evidence, ignored material evidence and has not applied its mind at all. The finding given by him, is, thus vitiated and the order of the Planning Authority under Section 51 of the M.R.T.P Act must, therefore, fall. Assuming the petitioners' land was not a gaothan tenure as such, it being surrounded by gaothan lands, it will have to be treated as goathan land. In this context, it was submitted that the expression ‘surrounded by’ was not the same things as bounded by.

4. As regards the directive issued by the Government on 25th August, 1981 and further directive issued on 27th August, 1981, Shri Tulzapurkar invited our attention to Section 154 of the M.R.T.P Act to show that the State Government is empowered to issue directions or instructions for a limited purpose i.e ‘efficient administration of the M.R.T.P Act’. The State Government cannot direct the Planning Authority by means of directions or instructions under Section 154 of the M.R.T.P Act to suspend or ignore the provisions of Rule 2(5) of the Building Bye-laws of the Pune Municipal Corporation or for that matter any other Rule wholly or partly. Assuming that the State Government was competent to issue directions under Section 154 of the M.R.T.P Act for suspending or ignoring the provisions of Rule 2(5) of the Building Bye-laws of the Pune Municipal Corporation, it cannot be ignored that the State Government issued another directive on 27th August, 1981 in terms of which direction was modified. Inviting our attention to the fact that Rule 2(7) of Building Bye-laws at page 63 provides that even agricultural lands surrounded by gaothan lands are to be treated like gaothan lands, the Planning Authority, it is stated, has not applied its mind to this aspect of the matter and the reply given by the respondents in the affidavit is, to say the least, vague. Shri Tulzapurkar then invited but attention to the Government's reply to Shri P.H Peshave, Chartered Architects, Pune's letter dated 24th September, 1982 addressed to the Chief Secretary seeking clarification with regard to the directive issued by the Government letter No. TPS-1982/3275/UD-7, dated 17th July, 1982 for the purpose of showing that the directive was to apply only to those cases where the building proposals were submitted prior to 17th August, 1982, but for which no sanction was given by the Corporation prior to that date. He also referred to clause 5.2 of the Development Control Rules Proposed for Application in Pune Municipal Corporation Area for Revised Development Plan of Pune, 1982 published under Section 26 of the M.R.T.P Act on 18th September, 1982. According to him, this clause also exempted cases from application of the amended rules where building permits were granted before codification of the proposed rules except in the circumstances mentioned in the clause. It is stated that the petitioners' case does not fall within the exceptions provided in the above sub-clause.

5. Shri Tulzapurkar submitted that the provisions of Section 51 of the M.R.T.P Act are invalid and ultra vires the Constitution on the grounds such as the section confers unbridled and arbitrary power without laying down any guide-lines as regards expediency and no appeal is also provided for against the order of revocation.

6. Assuming that the Planning Authority could consider the Petitioners' case under ground Nos. II and III, his order would be invalid unless he had acted in good faith and reasonably. In order to show that the Planning Authority was minded to revoke the permission, Shri Tulzapurkar pointed out that in the first show cause notice issued on 20th October, 1982 reference to grounds Nos. II and III was not made at all, whereas in the second show cause notice dated 15th March, 1983 these grounds were specifically taken up. Inviting then our attention to the fact that there are a number of buildings in the vicinity with a height of 70’ or even more, Shri Tulzapurkar submitted that it cannot be accepted that it was expedient to revoke the permission granted to the petitioners for constructing a building of the height of 69’. Bharatiya Vidya Peeth, it was stated, was permitted to construct a 10 storey building. Anticipating the arguments of the respondents that Bharatiya Vidya Peeth, was a public charitable institution, Shri Tulzapurkar stated that the building constructed by Bharatiya Vidya Peeth was a commercial complex. No good reasons having been given as to why it was expedient in the case of the petitioners and not in other cases to revoke the permission, the order passed by the Planning Authority revoking the permission already granted requires to be held as bad in law.

7. Inviting our attention to the fact that the Counsel for the petitioners has conveniently omitted to give a particular date in the list of the dates supplied to the Court, which is very important for deciding the case, Shri Sawant, the learned Advocate-General appearing for the respondents stated that ordinarily the life of a sanctioned development is 10 years. The first Development Plan for Pune was sanctioned in the year 1966. The State Government made a declaration of its intention to prepare a further Development Plan by publishing notice to this effect in terms of sections 23 and 38 of the M.R.T.P Act on 15th May, 1976. The requisite resolution was passed by the Municipal Corporation on 3rd June, 1982 which was sent for notification on 5th June, 1982 and published in the Gazette on 10th June, 1982. Inviting then our attention to the provisions of section 46 of the M.R.T.P Act, he submitted that when permission was granted to the petitioners on 9th June, 1982, the Planning Authority was obliged to take into account not only the draft or the final plan but also the proposals in connection therewith. In support he heavily relied on the decision of the Division Bench of this Court in the case of Life Insurance Corporation of India v. Municipal Corporation of Greater Bombay, dated 6th March, 1984 in Writ Petition No. 2944 of 1982 for the proposition that the permission granted by the Planning Authority on 9th June, 1982 was bad even on the day it was granted.

8. As regards the scope of directives to be issued by the State Government under Section 154 of the M.R.T.P Act the learned Advocate-General relied on another decision of this Court in the case of S.P Seth v. The Municipal Corporation of Greater Bombay, dated 28th & 29th January, 1980 in Miscellaneous Petition No. 1134 of 1976 to show that the State Government's directives need not be limited to the general policy matters. In appropriate cases the directives can be specific. According to the learned Advocate-General, section 51 is constitutionally valid as the section contains all the indicia of a valid piece of legislation. Alternatively the submission is that the Courts have to assume constitutional validity of the provisions and the burden is on the party which urges unconstitutionality to prove that the provisions are really unconstitutional.

9. It is stated that though the expression ‘sanctioned Development Plan’ is absent in Section 51 of the M.R.T.P Act, the same is implied if sections 22, 23, 28, 29, 32, 37, 38, etc. of the M.R.T.P Act are read along with the definition of expression ‘development’ and ‘development plan’ in section 2(7) and 2(9) of the Act. In appropriate cases an expression can be read in the section to make the section meaningful. In this context, the learned Advocate-General pointed out that any other construction of section 51 would mean that permission wrongly granted under the sanctioned plan can never be revoked except in cases falling within the mischief of section 258 of the Bombay Provincial Municipal Corporations Act, 1949. Such a construction, he urged, be avoided. Last contention in this regard was that the petitioners' case is in any event covered by section 51of the M.R.T.P Act assuming that the permission granted on 9th June, 1982, was valid, the same having become bad on account of ‘development plan prepared or under preparation’ at the time the show cause notice was issued under section 51 of the Act.

10. As regards the finding of the Planning Authority that the land in dispute i.e CTS No. 517 is not a Gaothan land, the learned Advocate General stated that being a finding of fact, this Court should not disturb it in writ proceedings. On merits of the finding he took us through the evidence on record in the shape of Revenue Survey Sheets to show that from the evidence in the shape of Exhibit ‘J’ at page 84 it is not at all clear whether the said sheet pertains to the land in dispute, inasmuch as the plot of land is shown in Narayan Peth and not in Sadashiv Peth. The Revenue Survey Sheet at page 106 which pertains to land in dispute, on the other hand, clearly shows that the tenure of the land is ‘Sarkari’ and not even Inami or Khalsa. Other Revenue Survey Sheets, it was stated, clearly indicate the tenure as Gaothan, where the lands are Gaothan lands. Taking us through the definition of the expression ‘Gaothan’ in Rule 1(30) of the Building Rules and Bye-laws of Pune Municipal Corporation, section 2(10) of the Maharashtra Land Revenue Code and sections 22 and 122 of the Maharashtra Land Revenue Code 1966, it is contended that unless the Collector or Surveyer has specifically ear-marked the land as Gaothan, it is not possible to hold the land to be Gaothan on the basis of such a vague evidence. Further clause 2.43A of the Development Control Rules Proposed for Application in Pune Municipal Corporation Area for Revised Development Plan of Pune, 1982 published under Section 26 of the M.R.T.P Act on 18th September, 1982 makes the position abundantly clear that even Inami and Khalsa lands are not to be treated as Gaothan lands under the plan under preparation.

11. Section 51 read with section 46 of the M.R.T.P Act in the light of the Division Bench decision of this Court (supra), according to the learned Advocate-General, makes it clear that the permission was wrongly granted and the Planning Authority was fully justified in revoking such a permission. Letter written by Shri Dalvi a junior officer of the Corporation on 18th November, 1983 to an individual cannot alter the legal position. Para 5.2 of the new Development Rules of 1982, it is stated, does not save the petitioners' case as contended by the learned Counsel for the petitioners.

12. In response to a query raised in the course of hearing, the learned Advocate-General pointed out that the Planning Authority has taken action under Section 51 of the M.R.T.P Act to revoke the permission granted earlier in a number of cases. In some cases the proceedings had to be dropped as the cases were found to be covered by the proviso to section 51(1). In some cases, the matters came to the High Court and quite a few other cases were settled on some justifiable basis. The allegation that when a number of buildings with higher heights are allowed to come up and/or exist in the vicinity, there was no expediency in this case, according to the learned Advocate-General, requires to be ignored as unsubstantiated as full facts of those cases are not available, and it is not possible to say in what circumstances the permissions were granted and could not be revoked. For this purpose the learned Advocate-General again invited our attention to the provisions of section 51(1) of the M.R.T.P Act which prohibited revocation of permission already granted in cases covered by the proviso thereof.

13. In reply Shri Tulzapurkar pointed out that the proposals contemplated vide Corporation's Resolution dated 3rd June, 1982 notified on 10th June, 1982 are minor modifications. This is clear from the fact that the notification is issued under section 37 of the M.R.T.P Act. Besides the minor modifications cannot be taken into account until they have undergone the exercise contemplated in section 37 of the Act and approved by the Government. He also invited our attention to the notification dated 17th September, 1982 being Exh. A at page 38 of the paper book to show that there was no revised development plan under preparation or prepared until then. By this notification, the State Government has appointed the Director of Town Planning Maharashtra State under Section 162(1) of the M.R.T.P Act to be an authority to take action for publication of notice of the development plan under section 26 after performing functions under Sections 28 and 29 of the M.R.T.P Act etc. and then to submit it under Section 30(1) of the Act within a period of year from the date of publication. The Development Control Rules under the. Revised Plan having been published on 18th September, 1982, Shri Tulzapurkar stated mat those rules could not be applied to the permission granted on 9th June, 1982. In any event, according to him, Clause 5.2 of the Revised Development Plan saves permission granted before 18th September, 1982. Further inviting our attention to the fact that the respondents have not found anything wrong with the petitioners' claim that the land in dispute will have to be treated as Gaothan land in view of the provisions of Bye-law 2(7) (at page 63 of the Building Rules and Bye-laws), the land in dispute, it was stated, requires to be taken as gaothan land. It is pointed out mat this ground has not been dealt with by the Planning Authority in its impugned order. On the strength of the comments of the learned Author Wade on Administrative Law, 5th Edn. at pages 225 and 226, it is urged that the permission fraudulently obtained can always be revoked and therefore there is no justification in the submission on behalf of the respondents that unless one reads “sanctioned development plan” in section 51 of the M.R.T P Act, the mistake committed in granting permission will perpetuate. The provisions of section 46, according to him, did not apply to the proposals “not submitted” even if the minor modifications contemplated under Section 37 of the Act can be treated proposals.

14. Having heard the parties at length and after going through the material on record, relevant provisions in the various Statutes, Rules and Bye-laws, and the decisions relied upon, we find that the main issue in this petition is whether and to what extent the order passed by the Planning Authority under Section 51 of the M.R.T.P Act is justified. For this purpose it is desirable to refer to the provisions of Section 51 of the Act which reads as under:

“51. (1) If it appears to a Planning Authority that it is expedient, having regard to the Development plan prepared or under preparation that any permission to develop land granted under this Act or any other law, should be revoked or modified, the Planning Authority may, after giving the person concerned an opportunity of being heard against such revocation or modification, by order, revoke or modify the permission to such extent as appears to it to be necessary:

Provided that—

(a) Where the development relates to carrying out of any building or other operation, no such order shall affect such of the operations as have been previously carried out; or shall be passed after these operations have substantially progressed or have been completed;

(b) where the development relates to a change of use of land, no such order shall be passed at any time after the change has taken place.

(2) Where permission is revoked or modified by an order made under subsection (1) and any owner claims within the time and in the manner prescribed, compensation for the expenditure incurred in carrying out the development in accordance with such permission which has been rendered abortive by the revocation or modification, the Planning Authority shall, after giving the owner reasonable opportunity of being heard by the Town Planning Officer, and ofter considering his report, assess and offer, subject to the provisions of section 19, such compensation to the owner as it thinks fit.

(3) If the owner does not accept the compensation and gives notice, within such time as may be prescribed, of his refusal to accept, the Planning Authority shall refer the matter for the adjudication of the Court; and the decision of the Court shall be final and be binding on the owner and Planning Authority.”

This section comes under Chapter IV which deals with “Control of Development and Use of Land included in Development Plans”. There are several inbuilt safeguards in the section as is evident from its plain reading. Permission already granted can be revoked under Section 51 only if it appears to the Planning Authority that it is expedient to do so having regard to the Development plan prepared or under preparation. It is, therefore, difficult to accept that no guide-lines are indicated in the section. There is provision for giving opportunity of being heard to the affected party before the permission already granted can be revoked or modified. There again it is not as if in all cases falling under Section 51(1) but not falling under the proviso thereto, the permission granted must be revoked. It can be modified in appropriate cases. Thus, the Planning Authority is vested with the discretion. It can revoke or modify the permission depending upon the circumstances of each case. Sub-section (2) on the other hand provides for compensation in cases where the affected party has to suffer loss for no fault of it. In case the affected party is not satisfied with the amount of compensation granted, there is provision for reference of the disputes for the adjudication of the Court. The person authorised to take action under Section 51 is no less a person than the senior most officer of the Municipal Corporation i.e Municipal Commissioner. It is true that the Act does not provide for an appeal against the order passed under this section. However, in view of the fact that the remedy by way of writ in such cases is always available, it cannot be held that for mere want of right of appeal against the order under Section 51, the section is unconstitutional. The section satisfies each and every test laid down by the Supreme Court in its decision in the case of Babubhai & Co. v. State of Gujarat, (1985) 2 SCC 732 : AIR 1985 SC 613 (at page 616 being paragraph 8). In this and the decision in the case of Prakash Amichand Shah v. State of Gujrat, (1986) 1 SCC 581 : AIR 1986 SC 468, it is held that the mere absence of a provision for appeal in the absence of anything more does not make a provision unconstitutional. Looked at from any point of view Shri Tulzapurkar's contention that Section 51 of the Act is constitutionally invalid requires to be rejected.

15. If the expression “having regard to the development plan prepared or cinder preparation” is taken to mean what has been contended before us by Shri Tulzapurkar, it would mean that the permission granted can be revoked or modified if it violates the development plan prepared or under preparation but not a development plan prepared and sanctioned. In our view Section 51 of the Act cannot be read in isolation, but will have to be read together with the other provisions of the Act. The expression used in Section 51 viz. “Development Plan prepared” has two facets. It will include a development plan prepared, but not yet sanctioned. The second facet is that the development plan is prepared and sanctioned. In our view, the general expression used in the section must include both these plans. Therefore, it will also take in its import a development plan prepared and sanctioned. It is pertinent to note that such an expression is used in Section 34 of the Act. Therefore, it is not possible for us to accept the contention that Section 51 of the Act will not take in its import a sanctioned development plan.

16. Coming to the construction part, it appears to us that what can be revoked or modified under Section 51 is “any permission to develop land granted under this Act or any other law” (Emphasis supplied). In the present case the permission was granted to the petitioners to develop land under Section 45 of the M.R.T.P Act. That apart the expression “permission granted under this Act or any other law” is wide enough to cover all kinds of permission granted to develop land. It is, thus, obvious that such a permission to develop land can be revoked or modified, provided the view of the Planning Authority that it is expedient, having regard to the Development plan prepared or under preparation, that the permission granted should be revoked or modified is justified.

17. This takes us to the next question namely, whether the permission granted to the petitioners for the construction of a building on CTS No. 517 on 9th June, 1982, assuming for the present it was valid when granted, violates the provisions of the “Development Plan prepared or under preparation”. For this purpose it is to be borne in mind that the impugned order has been passed on 1st July, 1983 and the show cause notice was issued on 15th March, 1983. Development Control Rules Proposed for Application in PUNE MUNICIPAL CORPORATION AREA FOR REVISED DEVELOPMENT PLAN OF PUNE (hereinafter referred to as “Revised Development Plan”) were admittedly published under Section 26 of the M.R.T.P Act on 18th September, 1982. Clause 2.43A thereof defines ‘Gaothan’ in a manner different from the meaning given to it under Rule 2(5) of the Building Rules and Bye-laws, inasmuch as ‘Inami’ or ‘Khalsa’ lands are no longer treated as on par with gaothan lands. A new concept of F.S.I has been recognised under the Revised Development Plan. In terms of the same even goathan Lands cannot have F.S.I of more than 2.00 The situation at present is that under the permission granted on 9th June, 1982, the first petitioner is entitled to construct a building the F.S.I of which would work out to 4.45 It is thus, clear that the permission granted in this case is not in conformity with the Revised Development Plan.

18. Next question requiring consideration is whether the view of the Planning Authority that is expedient having regard to the Development Plan prepared or under preparation that the permission granted should be revoked or modified is justified? There is no dispute that the petitioners were given opportunity of being heard before the order was passed and that their case is not saved by the Proviso to sub-section (1) of Section 51 of the Act. However, under the provision it is not as if in every case of permission granted under the sanctioned development plan violating the development plan prepared or under preparation, the Planning Authority must-take steps under Section 51. He can and will do so only if it appears expedient to him to do so having regard to the development plan prepared or under preparation which will include plan sanctioned. These two concepts are different. Theoretically, it is possible to conceive of a case or cases where the permission was valid at the time it was granted but is not in conformity with the development plan prepared or under preparation or sanctioned and yet it is not expedient to apply the provisions of section 51.

19. So far as the instant case is concerned, the meaning of gaothan land has materially changed and new F.S.I restrictions have come into force with the result the F.S.I available to the builders will be between 1.50 to 2.00 under the New Development Control Rules depending upon whether the land is gaothan or whether it is going to be a purely residential or residential cum commercial building against the F.S.I of 4.45 under the permission granted. The difference being so much we hold that the condition for applying Section, 51 is satisfied subject, of course, to the further condition that the Planning Authority acted bona fide and reasonably.

20. If as contended by Shri Tulzapurkar the Planning Authority had already made up its mind to revoke the permission granted, its order will have to be set aside in view of the decision reported in Roberts v. Hopwood, (1925) A.C 578 (at page 613 middle of the last but one para). This contention is based on the fact that in the first show-cause notice dated 20th October, 1982, only ground given was that the permission granted was contrary to the existing sanctioned development plan read with Government's directive dated 25th August, 1981 whereas in the impugned show cause notice dated 15th March, 1983, two more grounds are added. Our attention was invited to the circumstances in which the writ petition being No. 471 of 1983 filed by the petitioners against the order of revocation dated 4th November, 1982 was conceded by the respondents on 25th February, 1983. To our mind from the mere fact of the respondents' statement withdrawing the order dated 25th February, 1983 and subsequently issuing a fresh show cause notice under section 51 of the Act on a number of grounds it is not possible to infer that the Planning Authority was minded to revoke the permission. After all there is nothing wrong in withdrawing the order if it is found that the order as passed cannot be sustained and thereafter initiating fresh and proper proceedings provided that is justified. Threfore, the moot point requiring consideration is whether on facts and in law the Planning Authority was justified in revoking the permission on one of these or all these three grounds.

21. That the underlying object of all these development plans is to see that the towns develop in an organised way i.e there is no undue congestion. The buildings are provided with sufficient light and air. The town does not suffer from want of water or efficient sewerage system and is provided with good sites for schools, hospitals, parks, markets etc. does not require an argument. Therefore, the object to be achieved by revoking or modifying the permission granted can be one of these which is found in the Revised Development Plan published. The main contention of the petitioners has' been why should it be expedient to revoke the permission in their case only particularly when there is not even a suggestion that in view of the Revised Development Plan, the site is required for road widening or that an air-port is coming nearby or that the site or part of it is required for public purpose such as playground, schools, hospitals, strong emphasis was laid on the fact that at least 14 buildings with the Heights varying between 60’ to 101’ are allowed to come up in the vicinity. In particular our attention was invited to a 10 storey building constructed by Bhartiya Vidya Peeth where no steps were taken by the Planning Authority under Section 51 of the Act to revoke the permission. We are afraid that in the absence of full facts indicating circumstances in which the permission was granted in these cases or it was not revoked or modified under Section 51, it is not possible to say that the mere fact of there being other buildings in the vicinity should justify a conclusion that there was no expendiency to take action under Section 51 in that case. It is pertinent to mention that the Proviso to Section 51(1) itself provides that no action under Section 51(1) will be taken if substantial progress has already been made in pursuance of the permission granted. Moreover, so far as Bharatiya Vidya Peeth is concerned, the Advocate-General on instructions from his clients stated that the permission was granted on 8th April, 1981 and that being dissatisfied with the permission Bharatiya Vidya Peeth filed an appeal which was decided on 23rd January, 1982 in terms of which it was allowed to have 10 storeys as against less storeys allowed by the Planning Authority. The matter went upto the Supreme Court and the writ petition was dismissed. Some other cases had come to this court. Thus, on the basis of the information available about other cases, to say the least, it is not possible to come to the conclusion that the petitioners have been discriminated against.

22. This takes us to the last limb of the contention raised on behalf of the petitioners, namely, that the land in dispute is or has got to be treated as gaothan tenure. The question as to whether a particular land is in fact a gaothan land is obviously a question of fact. It is contended before us that while deciding the said question, various circumstances and documents have not been taken into consideration by the Planning Authority. Certain material is also produced before us in support of the contention that in fact the said land is gaothan land. In our view, it will not be fair nor necessary to decide this disputed question of fact, in this writ jurisdiction on the basis of the material placed before us. This is more so since the alternate pleaded before us by the petitoners has great substance.

23. The Planning Authority has not considered a relevant and important aspect which goes to the root of the matter namely, the land in dispute will still be treated as goathan land because of the provisions of Rule 2(7) at page 63 of the Building Rules and Bye-laws and the fact that it is surrounded by goathan lands. No satisfactory answer has been given to this allegation in the affidavit filed by the respondents except indicating the boundaries of the land in dispute. Except for stating that the plan produced did not conclusively establish that the land in dispute is surrounded by the gaothan lands, Advocate-General has not elaborated his submissions in this regard. Thus, it will have to be held that the finding of the Planning Authority that the land in dispute is not a gaothan land is vitiated on this ground. The City maps in the paper book, in our view, sufficiently vindicate the petitioners' stand. There is not even a suggestion that the provisions in this regard have changed. Accordingly we hold that the land in dispute is to be treated as gaothan land being surrounded by gaothan lands. Rationale behind this rule is obvious, namely, that when all the surrounding lands are allowed F.S.I on the basis of gaothan tenure, then not granting the same F.S.I to the land surrounded by those lands will have no justification. We are in the agreement with the learned Counsel for the petitioner that the expression “surrounded by” is not the same things as bounded by. Mere fact that on one or two sides of the land in dispute there are public roads it cannot be accepted that the land in dispute is not surrounded by the goathan lands.

24. Having regard to the above discussion our conclusion is that the Planning Authority was justified in taking steps under Section 51 of the M.R.T.P Act to revoke or modify the permission granted to the petitioners for building construction vide Commencement Certificate No. 285 dated 9th June, 1982. However the land in dispute will have to be treated as gaothan land.

25. It is pertinent to mention that as per directives received from the Government dated 13th January, 1982 and 12th April, 1982, the Pune Municipal Corporation by its General Body resolution dated 3rd June, 1982 proposed modifications to the existing “Building Rules and Bye-laws and Regulations Controlling Development of land”. Notice was issued in this regard on 5th June, 1982 in which it was inter alia stated that a book showing the modification is available for inspection in the office of the Deputy City Engineer (Building Control) during office hours. Suggestions as regards modifications of the building Rules and Bye-laws and Regulations Controlling Development of land, were published by the Pune Municipal Corporation in the Maharashtra Government Gazette on 10th June, 1982. There is no dispute that in terms of the modifications suggested the F.S.I for the buildings to be constructed on gaothan lands was restricted to 1.5 for residential purpose and 2.00 for combined residential and commercial purpose. The Planning Authority being the Municipal Commissioner Pune himself, it is difficult to imagine that he did not know about the modifications suggested when he granted permission under Section 45 of the Act on 9-6-1982. Following the decision of the Division Bench of this Court in the case of Life Insurance Corporation of India v. Municipal Corporation of Greater Bombay, in Writ Petition No. 2944 of 1982 dated 6th March, 1984, which is binding upon us we have to hold that the Planning Authority was bound to consider the proposal for modifications suggested by means of resolution dated 3rd June, 1982 for which a notice was issued on 5th June, 1982.

The relevant facts in the case decided by the Division Bench of this Court in Writ Petition No 2944 of 1982 on 6th March, 1984 are that the application to develop land (building construction) dated 31st May, 1982 was rejected by the Planning Authority under Section 45 read with Section 46 of the Act on the ground that the site was earmarked for a public purpose of recreation ground in the Revised Development Plan. However, the application for inspection of the Revised Development Plan was refused on the ground that the Revised Development Plan had not till then published. One of the questions involved before the Division Bench was whether the Planning Authority was justified in taking into account the Proposals in the Revised Development Plan which was not published and for which inspection was not allowed. After elaborately discussing the legal position in this regard in paragraphs 35 and 36 of the Judgment, it was held vide paragraph 37 of the judgment as under:

“Thus under Section 46, not only the published plan, but all relevant factors must be taken into consideration. And the paramount consideration must necessarily be that the development plan is advanced and not thwarted. To do otherwise would result in the development plan and the development process being set at naught for private aggrandisement and the negation of public good.”

It is not possible for us to accept the contention of Shri Tulzapurkar that the above decision is either per-incuriam or should be confined to the facts of that case. In our view that will be contrary to the well established principles of judicial discipline.

26. In the view we have taken of the provisions of section 46 and Section 51 of the Act, it is not necessary to deal with the arguments advanced by the parties regarding the validity and impact of the two directives issued by the State Government on 25th and 27th August, 1981 under Section 154, whether it is necessary for a piece of land to be a gaothan land that it should be so described in the Revenue Survey sheet having regard to Rule 1(30) of the Building Rules and Bye-laws, Sections 2(1), 22 and 122 of the Maharashtra Land Revenue Code, 1966, as also whether the permission granted before 18th September, 1982 is saved in terms of clause 5.2 of the Revised Development Plan as clarified by State Government's letter to Shri Peshave (at page 110 of the paper book) No. TPS-1882/4052/UD-7, said to be dated 18th November, 1982. Last question is not decided as we have held following the judgment of the Division Bench of this Court in Life Insurance of India's case that the permission granted on 9th June, 1982 itself was not proper.

27. In the result, the Petition partly succeeds. The impugned order of the Planning Authority is set aside and he is directed to modify the permission granted on 9th June, 1982 in accordance with the Revised Development Plan treating the petitioners' land as a gaothan land. The Rule is made partly absolute. There will be no order as to costs.

Petition partly allowed.