Supreme Court Upholds Change in Land Use for Playground: MIG Cricket Club vs. Abhinav Sahakar Education Society (2011)

Date of the Judgment: 5th September 2011
Citation: 2011 INSC 523
Judges: Justice Markandey Katju and Justice Chandramauli Kr. Prasad

Can a change in land use from a designated school and cultural center to a playground be legally upheld? The Supreme Court of India recently addressed this question in a case concerning a plot of land in Mumbai. This case revolves around conflicting claims over the use of a specific piece of land, with one party seeking to establish a school and the other a cricket ground. The Court’s decision clarifies the powers of the State Government in modifying development plans under the Maharashtra Regional and Town Planning Act, 1966.

The judgment was delivered by a two-judge bench comprising Justice Markandey Katju and Justice Chandramauli Kr. Prasad. The opinion was authored by Justice Chandramauli Kr. Prasad.

Case Background

The case involves a land dispute in Mumbai. Abhinav Sahakar Education Society (the “Society”), a registered society, was initially allotted a plot of land measuring 7224 sq. yards in MIG Colony, Bandra (East). The land was leased to the Society for 99 years by the Maharashtra Housing and Area Development Authority (“MHADA”) and the Bombay Housing and Area Development Board (“BHADB”) with the consent of the Municipal Corporation of Greater Bombay (“Corporation”) in February 1965.

Upon measuring the plot, the Society found the area to be 7301.25 sq. yards. When the Society planned to construct a school, it discovered that the land was reserved for a playground in the draft development plan. The Society informed MHADA and BHADB in 1968, and was advised to change the land use according to the law.

The Maharashtra Regional and Town Planning Act, 1966 (“the Act”) came into force on December 20, 1966. In 1978, the Government of Maharashtra and MHADA requested a modification of the draft development plan to designate the plot for “school purpose”. In 1979, the Bombay Metropolitan Regional Development Authority asked the Society for details and plans, which were duly provided. In 1983, the State Government informed the Society that instructions were given to the Corporation to change the land use for school purposes. In February 1984, the Corporation passed a resolution sanctioning the use of the plot for a school.

In 1985, a notification was issued under Section 37(2) of the Act, excluding 6103.33 sq. meters from the playground reservation and earmarking it for a “school and cultural center”. The Corporation confirmed this change to the Society in April 1985.

Between 1985 and 1986, the MIG Cricket Club (the “Club”) also sought to change the land use to a “cricket playground.” The Society was pressured to relocate the school. The Society sought permission to erect a compound wall due to threats from the Club, which was granted in 1986. The Corporation informed the Society that the proposed development plan mistakenly showed the plot as a “cricket club and playground” and directed the Society to approach the State Government for rectification. The Society did so in November 1986.

In 1992, the Society discovered a notification dated April 24, 1992, which modified the land use to a “playground” under Section 31(1) of the Act, reversing the 1985 notification. Aggrieved, the Society filed a writ petition challenging the notification and seeking restoration of the “school and cultural center” reservation.

Timeline:

Course of Proceedings

The Bombay High Court, after reviewing the case, concluded that the notification dated April 10, 1985, which was purportedly issued under Section 37(2) of the Act, was actually issued under Section 31(1) of the Act. The High Court noted that the draft development plan was prepared and made available for public objections on April 30, 1984. The 1985 notification finalized the reservation of the land for a school and cultural center. The High Court reasoned that since there was no finalization of the plan under Section 31 of the Act other than the 1985 notification, the 1985 notification had to be construed as being issued under Section 31 of the Act, despite the reference to Section 37(2).

Regarding the notification dated April 24, 1992, which was said to have been issued under Section 31(1) of the Act, the High Court determined that the State Government had actually exercised its power under Section 37(2) of the Act. The High Court stated that once the draft plan was prepared and subjected to public objections, and a part of the area was finalized and notified on April 10, 1985, the reference to Section 37(2) in the 1985 notification could not mean that the powers had been exercised under Section 37(2). Instead, it had to be construed as having been exercised under Section 31(1) of the Act.

The High Court held that the 1992 notification was issued without considering the 1985 notification, making it illegal. The court emphasized that the decision-making process did not provide the Society an opportunity to be heard, nor did the concerned authorities apply their minds to the 1985 notification before issuing the 1992 notification. Consequently, the High Court quashed the 1992 notification and directed the respondents to restore the reservation of the plot in accordance with the 1985 notification.

Legal Framework

The case primarily revolves around the interpretation and application of the Maharashtra Regional and Town Planning Act, 1966. The key sections are:

✓ Section 35 of the Maharashtra Regional and Town Planning Act, 1966: This section states that any development plan sanctioned by the State Government before the commencement of the Act shall be deemed to be a final development plan sanctioned under the Act. It reads as follows:

“35. Development plans sanctioned by State Government before commencement of this Act: If any Planning Authority has prepared a Development plan which has been sanctioned by the State Government before the commencement of this Act, then such Development plan shall be deemed to be a final Development plan sanctioned under this Act.”

✓ Section 31(1) of the Maharashtra Regional and Town Planning Act, 1966: This section empowers the State Government to sanction a draft development plan submitted to it, with or without modifications. It reads as follows:

“31. Sanction to draft Development plan. (1) Subject to the provisions of this section, and not later than one year from the date of receipt of such plan from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft Development plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct, or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan:”

✓ Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966: This section allows the State Government to make minor modifications to a final development plan. It reads as follows:

“37. Minor modification of final Development plan. (2) The State Government may, after making such inquiry as it may consider necessary after hearing the persons served with the notice and 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 plan shall be deemed to have been modified accordingly.”

These sections are crucial for understanding the powers of the State Government in sanctioning and modifying development plans, and the legal basis for the dispute in this case.

Arguments

Appellant’s (MIG Cricket Club) Submissions:

• The appellant contended that the High Court erred in holding that the notification dated April 10, 1985, was a final development plan under Section 31(1) of the Act.
• They argued that under Section 35 of the Act, a development plan sanctioned before the commencement of the Act is deemed to be the final development plan.
• The appellant stated that the 1985 notification modified the deemed final development plan, which existed before the Act came into force.
• According to the appellant, the area in question was designated as a “playground” in the deemed development plan. Therefore, the modification could be made under Section 37(2) of the Act.
• The appellant submitted that the notification dated April 10, 1985, was issued under Section 37(2) of the Act, changing the land use from “playground” to “school and cultural center.”
• They further argued that the draft development plan submitted on April 29, 1986, was sanctioned as a development plan under Section 31(1) of the Act by the notification dated April 24, 1992.
• The appellant contended that the High Court wrongly held that the 1992 notification was issued under Section 37(2) of the Act.
• In summary, the appellant argued that the 1985 notification was issued under Section 37(2) and the 1992 notification was issued under Section 31(1) of the Act, contrary to the High Court’s findings.

Respondent’s (Abhinav Sahakar Education Society) Submissions:

• The respondent submitted that the notification dated April 10, 1985, was a final development plan sanctioned under Section 31(1) of the Act.
• They argued that the impugned notification dated April 24, 1992, modified the 1985 notification without considering it, which was illegal.
• The respondent contended that the 1992 notification was issued under Section 37(2) of the Act, which is not permissible without considering the 1985 notification.
• The respondent pointed out that the non-consideration of the 1985 notification while issuing the 1992 notification vitiates the latter.

Submissions of Parties

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues in a numbered list in the judgment. However, the core issue that the court addressed was:

• Whether the notification dated April 24, 1992, issued under Section 31(1) of the Maharashtra Regional and Town Planning Act, 1966, was legal and valid, considering the earlier notification dated April 10, 1985.

The sub-issue that the court dealt with was:

• Whether the notification dated April 10, 1985, was issued under Section 37(2) or Section 31(1) of the Act.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues:

Authorities

The Supreme Court considered the following legal provisions:

• Section 35 of the Maharashtra Regional and Town Planning Act, 1966: This section provides that development plans sanctioned before the Act’s commencement are deemed final plans under the Act.
• Section 31(1) of the Maharashtra Regional and Town Planning Act, 1966: This section outlines the procedure for sanctioning a draft development plan.
• Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966: This section allows for minor modifications to a final development plan.

Treatment of Authorities by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Section 35 of the Maharashtra Regional and Town Planning Act, 1966* to establish that a deemed final development plan existed prior to the 1985 notification.
• The Court used Section 31(1) of the Maharashtra Regional and Town Planning Act, 1966* to determine that the 1992 notification was a valid sanction of a development plan.
• The Court used Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966* to establish that the 1985 notification was a minor modification of the existing development plan.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the interpretation of the relevant provisions of the Maharashtra Regional and Town Planning Act, 1966, and the sequence of notifications issued by the State Government. The Court emphasized the legal fiction created by Section 35, which deems development plans sanctioned before the Act’s commencement as final plans under the Act. The Court also focused on the distinction between the power to sanction a draft development plan under Section 31(1) and the power to make minor modifications to a final development plan under Section 37(2).

The Court’s reasoning suggests a strong emphasis on adhering to the statutory framework and the powers conferred upon the State Government. The Court also highlighted the importance of town planning as an expert function best left to the State Government, absent any arbitrariness.

Fact:Law Ratio

Logical Reasoning:

Judgment

The Supreme Court, after analyzing the facts and legal provisions, held that the High Court had erred in its interpretation of the notifications and the relevant sections of the Act. The Court concluded that the notification dated April 10, 1985, was a minor modification of the deemed final development plan under Section 37(2) of the Act, and not a final sanction under Section 31(1). The Court further held that the notification dated April 24, 1992, was a valid sanction of a development plan under Section 31(1) of the Act.

The Court emphasized that the validity of an order does not depend on the section mentioned in the order. A wrong provision mentioned in the order does not invalidate it if the order could be validly passed under any other provision. In this case, the Court found that the powers were exercised in accordance with the law, and there was no arbitrariness in the decision to change the land use.

The Court also stated that the user of the land is to be decided by the empowered authority, and the Court, in its power of judicial review, would not interfere unless the change in user is found to be arbitrary. The Court recognized that town planning requires a high degree of expertise and is best left to the decision of the State Government, which has the advice of expert bodies available.

The Supreme Court allowed the appeal, set aside the judgment of the High Court, and dismissed the contempt petition. There was no order as to costs.

“It is well settled that the user of the land is to be decided by the authority empowered to take such a decision and this Court in exercise of its power of judicial review would not interfere with the same unless the change in the user is found to be arbitrary.”

“The process involves consideration of competing claims and requirements of the inhabitants in present and future so as to make their lives happy, healthy and comfortable.”

“We are of the opinion that town planning requires high degree of expertise and that is best left to the decision of State Government to which the advise of the expert body is available.”

Key Takeaways

• The Supreme Court has clarified the distinction between the powers under Section 31(1) and Section 37(2) of the Maharashtra Regional and Town Planning Act, 1966.
• The judgment emphasizes the importance of adhering to the statutory procedures for modifying development plans.
• The Court has reaffirmed the principle that the validity of an order is not solely dependent on the provision mentioned in the order, but on whether the power to pass the order exists.
• The decision highlights the deference that courts should give to the State Government’s decisions in town planning matters, provided there is no arbitrariness.
• The judgment underscores that town planning requires expertise and is best left to the State Government’s discretion.

Directions

No specific directions were given by the Supreme Court in this judgment.

Specific Amendments Analysis

There is no discussion of specific amendments in this judgment.

Development of Law

The ratio decidendi of this case is that a development plan sanctioned before the commencement of the Maharashtra Regional and Town Planning Act, 1966, is deemed to be a final development plan under the Act. Minor modifications to such plans can be made under Section 37(2), while the sanction of a new plan is governed by Section 31(1). The Court also clarified that the validity of an order does not depend on the section mentioned in the order, but on whether the power to pass the order exists. This case clarifies the interplay between Sections 31, 35 and 37 of the Maharashtra Regional and Town Planning Act, 1966.

Conclusion

In conclusion, the Supreme Court allowed the appeal by MIG Cricket Club, setting aside the Bombay High Court’s judgment. The Supreme Court held that the change in land use from “school and cultural center” to “playground” was valid under the Maharashtra Regional and Town Planning Act, 1966. The Court emphasized the importance of adhering to the statutory procedures for modifying development plans and the deference courts should give to the State Government’s decisions in town planning matters, provided there is no arbitrariness. This judgment provides clarity on the interpretation of the relevant sections of the Act and the powers of the State Government in town planning.

Category

Parent Category: Maharashtra Regional and Town Planning Act, 1966

Child Categories:

• Section 31, Maharashtra Regional and Town Planning Act, 1966
• Section 35, Maharashtra Regional and Town Planning Act, 1966
• Section 37, Maharashtra Regional and Town Planning Act, 1966
• Town Planning Law
• Land Use
• Development Plan