LAW RESOURCE INDIA

What will happen, if the protectors themselves become poachers? The then Chief Minister has let down the people of the city and the state, and the children.

Posted in ACCOUNTABILITY, CORRUPTION, GOVERNANCE, LEGISLATURE by NNLRJ INDIA on October 16, 2011
SUPREME COURT OF INDIA

SUPREME COURT OF INDIA

LAW RESOURSCE INDIA

What will happen, if the protectors themselves become poachers? The then Chief Minister has let down the people of the city and the state, and the children. This iswhat the Supreme Court said about Mr Manohar Joshi former Speaker of Lok Sabha .

New Delhi:  The Supreme Court has slammed Shiv Sena leader and former Maharashtra Chief Minister Manohar Joshi for handing over prime government land in Pune to his son-in-law for building a housing complex in 1998. In a severe indictment of Mr Joshi – also a former Lok Sabha Speaker – the court observed, “It is rather unfortunate that the then chief minister, who claims to be an educationist, took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law.”

The case, dating back to 1998, pertains to the change of land use of a plot meant for a primary school in Pune to favour a builder who was close to Mr Joshi’s son-in-law Girish Vyas. The nod for the change in the land use was given by Mr Joshi himself. The court has imposed a fine of Rs 15,000 on Mr Joshi and has asked his son-in-law, Mr Vyas, to surrender his claim on the ten-storied building that has come up on that land, failing which the structure would be demolished.

The Court in a wide ranging order while reminding the duties of the various agencies said that ” People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for public amenities from the preying hands of the builders. What will happen, if the protectors themselves become poachers? Their decisions and conduct must be above board. Institutional trust is of utmost importance. In the case of Bangalore Medical Trust (supra) this court observed in paragraph 45 of its judgment that the directions of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules Same is the case in the present matter where Shri Manohar Joshi, the then Chief Minister and Shri Ravindra Mane, the Minister of State have failed in this test, and in discharge of their duties. Nay, they have let down the people of the city and the state, and the children.”

We reproduce some important paragraphs from this judgement :

The Responsibility of the Municipal Commissioner and the Senior Government Officers

The Municipal Commissioner is the Chief Executive of the Municipal Corporation. It is his responsibility to act in accordance with these laws and to protect the interest of the Corporation. The Commissioner is expected to place the complete and correct facts before the Government when any such occasion arises, and stand by the correct legal position. That is what is expected of the senior administrative officers like him. That is why they are given appropriate  protection under the law. In this behalf, it is worthwhile to refer to the speech of Sardar Vallabhbhai Patel, the first Home Minister of independent India, made during the Constituent Assembly Debates, where he spoke about the need of the senior secretaries giving their honest opinions which may not be to the liking of the Minister. While speaking about the safeguards for the Members of Indian Civil Service (now Indian Administrative Service), he said-…To-day, my Secretary can write a note opposed to my views. I have given that freedom to all my Secretaries. I have told them `if you do not give your honest opinion for fear that it will displease your Minister, please then you had better go. I will bring another Secretary.’ I will never be displeased over a frank expression of opinion. That is what the Britishers were doing with the Britishers. We are now sharing the responsibility. You have agreed to share responsibility. Many of them with whom I have worked, I have no hesitation in saying that they are patriotic, as loyal and as sincere as myself(Ref: Constituent Assembly Debates. Vol.10 p. 50)

Now unfortunately, we have a situation where the senior officers are changing their position looking to the way the wind is blowing.

Expectations from the Political Executive

Same are the expectations from the political executive viz. that it must be above board, and must act in accordance with the law and not in furtherance of the interest of a relative. However, as the time has passed, these expectations are belied. That is why in the case of Shri Shivajirao Nilangekar (supra) this Court had to lament in paragraph 51 of the judgment as follows:- "51. This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale. It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere. The  pollution in our values and standards in (sic is) an equally grave menace as the pollution of the environment. Where such situations cry out, the courts should not and cannot remain mute and dumb

People of a state look up to the Chief Minister and those who occupy the high positions in the Government and the Administration for redressal of their grievances. Citizens are facing so many problems and it is expected of those in such positions to resolve them. Children are particularly facing serious problems concerning facilities for their education and sports, quality of teaching, their health and nutrition. It is the duty of those in high positions to ensure that their conduct should not let down the people of the country, and particularly the younger generation. The ministers, corporators and the administrators must zealously guard the spaces reserved for public amenities from the preying hands of the builders. What will happen, if the protectors themselves become poachers? Their decisions and conduct must be above board. Institutional trust is of utmost importance. In the case of Bangalore Medical Trust (supra) this court observed in paragraph 45 of its judgment that "the directions of the Chief Minister, the apex public functionary of the State, was in breach of public trust, more like a person dealing with his private property than discharging his obligation as head of the State administration in accordance with law and rules Same is the case in the present matter where Shri Manohar Joshi, the then Chief Minister and Shri Ravindra Mane, the Minister of State have failed in this test, and in discharge of their duties. Nay, they have let down the people of the city and the state, and the children.

Importance of the spaces for public amenities

As we have seen, the MRTP Act gives a place of prominence to the spaces meant for public amenities. An appropriately planned city requires good roads, parks, playgrounds, markets, primary and secondary schools, clinics, dispensaries and hospitals and sewerage facilities amongst other public amenities which are essential for a good civic life. If all the spaces in the cities are covered only by the construction for residential houses, the cities will become concrete jungles which is what they have started becoming. That is how there is need to protect the spaces meant for public amenities which cannot be sacrificed for the greed of a few landowners and builders to make more money on the ground of creating large number of houses. The MRTP Act does give importance to the spaces reserved for public amenities, and makes the deletion thereof difficult after the planning process is gone through, and the plan is finalized. Similar are the provisions in different State Acts. Yet, as we have seen from the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical Trust (supra) and Lucknow (M.I Builders Pvt. Ltd. (supra), and now as is seen in this case in Pune, the spaces for the public amenities are under a systematic attack and are shrinking all over the cities in India, only for the benefit of the landowners and the builders. Time has therefore come to take a serious stock of the situation. Undoubtedly, the competing interest of the landowner is also to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for a public purpose after following the due process of law, the interest of the individual must yield to the public interest.

As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities. We have seen the definition of substantial modification, and when the reservation for a public amenity on a plot of land is sought to be deleted completely, it would surely be a case of substantial modification, and not a minor modification. In that case what is required is to follow the procedure under Section 29 of the Act, to publish a notice in local newspapers also, inviting objections and suggestions within sixty days. The Government and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated, the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to only in the rarest of rare case, and after fully examining as to why the concerned plot was originally reserved for a public amenity, and as to how its deletion is necessary. Otherwise it will mean that we are paying no respect to the efforts put in by the original planners who have drafted the plan, as per the requirements of the city, and which plan has been finalized after following the detailed procedures as laid down by the law. Suggested safeguards for the future

Having noted as to what has happened in the present matter, in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in tune with the spirit behind.

(i) Therefore, when the gazette notification is published, and the public notice in the local newspapers is published under Section 29 (or under Section 37) it must briefly set out the reasons as to why the particular modification is being proposed. Since Section 29 provides for publishing a notice in the `local newspapers’, we adopt the methodology of Section 6 (2) of the L.A. Act, and expect that the notice shall be published atleast in two daily newspapers circulating in the locality, out of which atleast one shall be in the regional language. We expect the notice to be published in the newspapers with wide circulation and at prominent place therein.

(ii) Section 29 lays down that after receiving the suggestions and objections, the procedure as prescribed in Section 28 is to be followed. Sub-section (3) of Section 28 provides for holding an inquiry thereafter wherein the opportunity of being heard is to be afforded by the Planning Committee (of the Planning Authority) to such persons who have filed their objections and made suggestions. The Planning Committee, therefore, shall hold a public inquiry for all such persons to get an opportunity of making their submission, and then only the Planning Committee should make its report to the Planning Authority. (iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, in as much as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, in as much as these  public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani Vs. State of Maharashtra reported in [2005 (11) SCC 222].

Primary Education

Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act 1947. Again, to state the reality, even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the Constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall endeavour to provide, within the period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendment to the Constitution effected in the year 2002 deleted this Article 45, and substituted it with new Article 45 which lays down that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. The amendment has made Right to Education a Fundamental Right under Article 21A. This Article lays down that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. In the year 2009 we passed the Right of Children to  Free and Compulsory Education Act 2009. All these laws have however not been implemented with the spirit with which they ought to have been. We have several national initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary Education Programme, and the Universal Elementary Education Programme to name a few. However, the statistical data shows that we are still far away from achieving the goal of full literacy.

Nobel laureate Shri Amartya Sen commented on our tardy progress in the field of basic education in his Article `The Urgency of Basic Education’ in the seminar Right to Education-Actions Now held at New Delhi on 19.12.2007 as follows:-

India has been especially disadvantaged in basic education, and this is one of our major challenges today. When the British left their Indian empire, only 12 per cent of the India population was literate. That was terrible enough, but our progress since independence has also been quite slow. This contrasts with our rapid political development into the first developing country in the world to have a functioning democracy.

The story for Pune city is not quite different. Since the impugned development permission given by the Municipal Corporation was on the basis of no objection of the Chief Minister dated 21.8.1996, we may refer to the Educational Statistics of Pune city, at that time. As per the Census of India 1991, the population of Pune city was 24,85,014, out of which 17,14,273 were the literate persons which comes to just above 2/3 of the population. The percentage of literacy has gone up thereafter, but still we are far away from achieving full literacy and from the goal of providing quality education and facilities at the primary level.

There is a serious problem of children dropping out from the primary schools. There are wide ranging factors which affect the education of the children at a tender age, such as absence of trained teachers having the proper understanding of child psychology, ill-health, and mal-nutrition. The infrastructural facilities are often very inadequate. Large number of children are cramped into small classrooms and there is absence of any playground attached with the school. This requires adequate spaces for the primary schools. Even in the so called higher middle class areas in large cities like Pune, there are hardly any open spaces within the housing societies and, therefore, adequate space for the playgrounds of the primary schools is of utmost importance. Having noted this scenario and the necessity of spaces for primary schools in urban areas, it is rather unfortunate that the then Chief Minister who claims to be an educationist took interest in releasing a plot duly reserved and acquired for a primary school only for the benefit of his son-in-law. It also gives a dismal picture of his deputy, the Minister of State acting to please his superior, and so also of the Municipal Commissioner ignoring his statutory responsibilities.

Operative order with respect to the disputed buildings

We have held the direction given by the State Government for the deletion of reservation on Final Plot No.110, and the commencement and occupation certificates issued by the Pune Municipal Corporation in favour of the developer were in complete subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified. As far as the building meant for the tenants is concerned, the developer as well as  PMC have indicated that they have no objection to the building being retained. As far as the ten storied building meant for the private sale is concerned, the developer had offered to hand over half the number of floors to PMC, provided it permits the remaining floors to be retained by the developer. PMC has rejected that offer since the plot was reserved for a primary school. The building must therefore be either demolished or put to a permissible use. The illegal development carried out by the developer has resulted into a legitimate primary school not coming up on the disputed plot of land. Thousands of children would have attended the school on this plot during last 15 years. The loss suffered by the children and the cause of education is difficult to assess in terms of money, and in a way could be considered to be far more than the cost of construction of this building. Removal of this building is however not going to be very easy. It will cause serious nuisance to the occupants of the adjoining buildings due to noise and air pollution. The citizens may as well initiate actions against the PMC for appropriate reliefs. It is also possible that the developer may not be able to remove the disputed building within a specified time, in which case the PMC will have to incur the expenditure on removal. It will, therefore, be open to the developer to redeem himself by offering the entire building to PMC for being used as a primary school or for the earmarked purpose, free of cost. If he is so inclined, he may inform PMC that he is giving up his claim on this building also in favour of PMC.

The High Court has not specified the time for taking the necessary steps in this behalf. Hence, for the sake of clarity, we direct the developer to  inform the PMC within two weeks from today whether he is giving up the claim on the ten storied building named `Sundew Apartments’ apart from the tenants’ building in favour of PMC, failing which PMC will issue a notice to the developer within two weeks thereafter, calling upon him to furnish particulars to PMC within two weeks from the receipt of the notice, as to in what manner and time frame he proposes to demolish this ten storied building. In the event the developer declines or fails to do so, or does not respond within the specified period, or if PMC forms an impression after receiving his reply that the developer is incapable of removing the building in reasonably short time, the PMC will go ahead and demolish the same. In either case the decision of the City Engineer of PMC with respect to the manner of removal of the building and disposal of the debris shall be final.

As far as the ownership of the plot is concerned, the same will abide by the decision of the High Court in First Appeal Stamp No. 18615 of 1994 which will be decided in accordance with law. The old tenants will continue to occupy the building meant for the tenants.

The PMC and the State Government have fairly changed/reviewed their legal position in this Court, and defended their original stand about the illegality of the construction. We therefore, absolve both of them from paying costs to the original petitioners. The order with respect to payment of cost of Rs. 10,000/- against the then Chief Minister and the Minister of State to each of the original petitioners however remains. Over and above we add Rs. 15,000/- for each of them to pay to the two petitioners separately towards the cost of these appeals in this Court. Thus, the then Chief Minister and the Minister of State shall each pay Rs. 25,000/- to the two petitioners separately.

The spaces for public amenities such as roads, playgrounds, markets, water supply and sewerage facilities, hospitals and particularly educational institutions are essential for a decent urban life. The planning process therefore assumes significance in this behalf. The parcels of land reserved for public amenities under the urban plans cannot be permitted to be tinkered with. The greed for making more money is leading to all sorts of construction for housing in prime city areas usurping the lands meant for public amenities wherever possible and in utter disregard for the quality of life. Large number of areas in big cities have already become concrete jungles bereft of adequate public amenities. It is therefore, that we have laid down the guidelines in this behalf which flow from the scheme of the MRTP Act itself so that this menace of grabbing public spaces for private ends stops completely. We are also clear that any unauthorised construction particularly on the lands meant for public amenities must be removed forthwith. We expect the guidelines laid down in this behalf to be followed scrupulously.

The conclusions in nutshell and the consequent order

In the circumstances we conclude and pass the following order –

(i) We hold that the direction given by the Government of Maharashtra for the deletion of reservation on Final Plot No. 110, at Prabhat Road, Pune, and the consequent Commencement and Occupation certificates issued by the Pune Municipal Corporation (PMC) in favour of the developer were in complete  subversion of the statutory requirements of the MRTP Act. The development permission was wholly illegal and unjustified.

(ii) The direction of the High Court in the impugned judgment dated 6/15.3.1999 in Writ Petition Nos. 4433 and 4434/1998 for demolition of the concerned building was fully legal and justified.

(iii) The contention of the landowner that his right of development for residential purposes on the concerned plot under the erstwhile Town Planning scheme subsisted in spite of coming into force of Development Plan reserving the plot for a primary school, is liable to be rejected. (iv) The acquisition of the concerned plot of land was complete with the declaration under Section 126 of the MRTP Act read with Section 6 of Land Acquisition Act and the same is valid and legal.

(v) The order passed by the High Court directing the Municipal Corporation to move for the revival of the First Appeal Stamp No. 18615 of 1994 was therefore necessary. The High Court is expected to decide the revived First Appeal at the earliest and preferably within four months hereafter in the light of the law and the directions given in this judgment.

(vi) The developer shall inform the PMC whether he is giving up the claim over the construction of the ten storied building (named `Sundew Apartments’) apart from the tenants’ building in favour of PMC, failing which either the developer or the PMC shall take steps for demolition of the disputed building (Sundew Apartments) as per the time frame laid down in this judgment.

(vii) The former occupants of F.P No. 110 will continue to reside in the building constructed for the tenants on the terms stated in the judgment. (viii) The corporation will not be required to pay any amount to the developer for the tenants’ building constructed by him, nor for the ten storied building in the event he gives up his claim over it in favour of PMC. (ix) The strictures passed by the High Court against the then Chief Minister of Maharashtra Shri Manohar Joshi and the then Minister of State Shri Ravindra Mane are maintained. The prayer to expunge these remarks is rejected. The remarks against the Municipal Commissioner are however deleted.

(x) The order directing criminal investigation and thereafter further action as warranted in law, is however deleted in view of the judgment of this Court in the case of Common Cause A Registered Society Vs. Union of India reported in 1999 (6) SCC 667

(xi) The then Chief Minister and the then Minister of State shall each pay cost of Rs. 15,000/- to each of the two petitioners in the High Court towards these ten appeals, over and above the cost of Rs. 10,000/- awarded by the High Court in the writ petitions payable by each of them to the two writ petitioners.

(xii) The State Government and the Planning authorities under the MRTP Act shall hereafter scrupulously follow the directions and the suggested safeguards with respect to the spaces meant for public amenities.

2 Responses

Subscribe to comments with RSS.

  1. rajeevghuwalewala said, on October 16, 2011 at 14:09

    It’s vitally essential to minimize discretionary powers of the office bearers looking to the quality of people coming in power to hold top constitutional posts. Depending on any individual for protection from poachers is sheer foolishness. Only the system can protect. We need to have effective checks and balances mechanism in place so that the power of a single individual or body of government is limited and only legitimate powers are allowed to govern. Good ideas to be implemented, while abuse of power, corruption and oppression are minimized.

  2. ivooscarfaleiro said, on October 16, 2011 at 14:10

    What will happen, if the protectors themselves become poachers??? Isn’t it precisely because of this we need a very stringent Lokpal and Lokayutka Bill in the country and the states, respectively? This is the reason why all political parties have NOT passed the Lokpal Bill since 1968 when it was first presented in the Parliament by the then Law Minister, Mr. Bushan. They all want to plunder India and loot the Indians. Jai Hind. – Ivo Oscar Faleiro, Ex-General Secretary, South Goa District Congress (I) Committee, Flat No. G-2, Queen’s Garden, Behind Old Kare Law College, Rua Calcada De Nossa Senhora De Piedade, Margao – Goa. INDIA. Ph (Res): 91-832-2735790. M: 09420783557 / 09226779988.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: