The State Government had the authority to make changes to the Development Control Rules under Section 37(2) of the Act, and there could be no estoppel against a statute.

Headnote:
Review Petitions - Maharashtra Regional Town Planning Act - Chapter III - Development Control Rules - Transfer of Development Rights - Section 37(1) - Section 37(2) - Promissory Estoppel
Fact of the Case:

The case involved a dispute over the modification of Development Control Rules (DCR) for Pune city under the Maharashtra Regional Town Planning Act. The State Government added the words 'from the very said plot' to a rule, leading to litigation.
Finding of the Court:

The High Court found that the State Government's addition of the words 'from the same plot' was illegal and struck down the words. It also held that the Corporation could not insist on the additional FSI to be used on the same plot. The Supreme Court, however, allowed the appeal and set aside the High Court's judgment, stating that the State Government had the authority to make changes to the DCR.
Issues: The main issue was the legality of the State Government's addition of words to the DCR without following the prescribed procedure. Another issue was the application of promissory estoppel in the case.
Ratio Decidendi: The Court held that the State Government had the authority to make changes to the DCR under Section 37(2) of the Act. It also emphasized that there could be no estoppel against a statute, and the DCR had the same force as the Act.
Final Decision: The review petitions were dismissed, and the constructions made in violation of the DCR were not treated as such based on the Corporation's submission.

JUDGMENT:

G.P. Mathur, J.

These are review petitions seeking review of the judgment and order dated 5.5.2004 passed by this Court in Civil Appeal No.3800 of 2003. We will give the facts of Review Petition No.1809 of 2005, which is the leading case.

2. The Maharashra legislature enacted Maharashtra Regional Town Planning Act, 1966 (for short the Act) for planning and development of the cities, constitution of Regional Planning Boards and to make provision for the preparation of development plans with a view to ensuring that Town Planning Schemes are made in a proper manner and their execution is made effective and for ancillary purposes. Chapter III of the Act deals with development plans. Under the Scheme of the Act, Development Control Rules are framed separately for each city keeping in view the peculiar requirements of each city/town. The dispute here pertains to Development Control Rules (for short DCR) for Pune which has been constituted as a corporation under the Bombay Provincial and Municipal Corporation Act, 1949 (for short BPMC Act). Pune Municipal Corporation is

also the planning authority under the provisions of the Act for the city of Pune. A concept of Transfer of Development Rights (for short TDR) was introduced in the Regulations of Greater Bombay and the object of introducing such concept was to facilitate acquisition of land for public purposes. The concept of TDR operates in the following manner :-

"The owner or the lessee of the plot of land will hand over the possession of the reserved land to the planning authority and as against such handing over, such owner or the lessee will be granted "development right certificate" so as to enable such owner to construct built up area equivalent to permissible FSI of the land acquired in one or more other plots and in the zones specified. Such one or more plots are termed as "receiving plots".

3.The State of Maharashtra issued a directive under Section 37(1) of the Act to the Pune Municipal Corporation on 8.7.1993 to amend Development Control Rules of Pune city. The Pune Municipal Corporation then issued a notification in the Gazette on 30.9.1993 by which the process of modification was initiated and it was notified that the modification would be on the same lines as applicable in Greater Bombay. One of the proposed modifications was in Rule N.2.4.11 which was as under :

"FSI of receiving plot shall be allowed to be exceeded by not more than 0.4 in respect of D.R. available in respect of the reserved plot and upto a future 0.4 in respect of D.R. available in respect of the lands surrendered for road widening or construction of new roads as prescribed."

After prescribed procedure had been completed, the Corporation forwarded the proposed modification to the State Government. The State Government then issued a notification under Section 37(2) of the Act on 5.6.1997 sanctioning the proposal and notified the modified Development Control Rules of Pune Municipal Corporation. Rule N.2.4.11 which was sanctioned and notified by the State Government reads as under :

"(a) The FSI on receiving plots shall be allowed to be exceeded not more than 0.4 in respect of DR available for the reserved plots.

(b)The FSI on receiving plots shall be allowed to be exceeded by further 0.4 in respect of DR available on account of the land surrendered for the road widening or construction of new road from very said plot."

4.The State Government while sanctioning Rule N.2.4.11 introduced a departure from the Bombay Development Control Rules. Some other changes were also made by the State Government in the Rules which had been proposed by the Pune Municipal Corporation. Thereafter, some exchange of correspondence and meetings took place between the Pune Municipal Corporation and the State Government as regards the interpretation of the above Rule. The Chief Secretary of the Urban Development Department, Government of Maharashtra then sent a detailed letter to the Pune Municipal

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2007 Supreme(SC) 705

The State Government had the authority to make changes to the Development Control Rules under Section 37(2) of the Act, and there could be no estoppel against a statute.

Cases Referred (6)