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EXPRESS NEWS SERVICE
MUMBAI, March 10: Ruling that the dereservation of the Pune plot on which the then Chief Minister Manohar Joshi's son-in-law Girish Vyas went on to build a multi-storeyed commercial complex was ``totally illegal,'' the division bench of Bombay High Court today passed hard hitting strictures against the state government and the then Pune Municipal Commissioner Ramanand Jha in the `Girish Vyas case'.
Destroying the entire edifice of legalities and arguments on which the case was built by the respondents' counsels, the bench of Justice B N Srikrishna and Justice S S Parkar held that procedure under section 37 of the MRTP Act, (Maharashtra Regional Town Planning Act-whereby the proposal goes to the municipal corporation and objections and suggestions are called from the public) alone could be resorted to for a dereservation.
The Bombay High Court also observed that the former Chief Minister Manohar Joshi, who was the Cabinet Minister for Urban Development, did indeed show a keen interest in the case where hisson-in-law, Girish Vyas was allowed to construct a multi storeyed complex on the plot (number 110 of Prabhat road, Erandwane, Pune) which was reserved for a primary school.
``Mahatma Gandhi's saying that purity of means is as important as the goal itself, also holds good in the court of law,'' remarked Justice Srikrishna as he added that the court was not satisfied that ``either the means were clear or the object was laudable''.
The bench is adjudicating on two petitions filed by Pune journalist Vijay Kumbhar and Nitin Jagtap, corporator of the PMC in which they have accused former Joshi of misusing power to help his kin. Today was the fourth day of dictation of the judgement. While the earlier three days were marked by a statement of facts, with even the counsels interrupting the bench, today's dictation was heard with rapt attention which was shattered only when the court timings ended and the shrill sound of a cellphone was heard.
The bench concluded that the role of the then chief minister wascrucial since it was only after Joshi asked for the Pune municipal commissioner's report (listing out the options for a possible compromise) that ``files moved at an unprecedented speed''. ``Fax messages fly back and forth from the CM's offices,'' he noted and expressed surprise that ``routine official communications (in the case) were being communicated by fax!!!''. He actually asked the stenographer who was taking the notes to add three exclamation remarks.
Chronicling Joshi's actions in the case, Justice Srikrishna wondered why the chief minister had asked for only one document the commissioner's report from the entire file. ``We are somewhat puzzled by the note that the private secretary of the CM sent to the under secretary of urban Development Department asking for a copy of the commissioner's report'', he started. ``Normally one would have understood that since respondent number five was Minister of Urban Development, he would be officially concerned with all the matters of his department. Even then,we thought that he would take the entire file for making a decision in the matter. This, asking for a particular document from the entire file, appears suggestive of somebody's interest in the matter being aroused,'' he said adding that, ``from this point, there was only one direction the case could take.''
Observing the fact that the additional chief secretary Arun Bongirwar himself visited Pune to meet the commissioner to discuss the case as well as the various meetings held, the bench concluded that ``these facts leave no doubt that the objective, far from being pure, was only to ensure that the development permission was granted to the owner ... the real beneficiary was respondent number 8 (Girish Vyas).
He was referring to the arguments of the state government counsel, K K Venugopal who had said that the dereservation of the plot, whereby the PMC received around Rs 25 lakh (as the compensation amount was returned by the owner), as well as a plot of land at Mundhwa to construct a primary school, wasultimately or public good.
``It is doubtful if public good can be achieved in decisions taken in chambers of ministers and secretaries,'' he observed.
He rejected the other arguments of Venugopal that since the other plots around plot no 110, ie 111 and 112 had schools, the ``reservation lapses'' and upheld that the director of town planning as well as the planning authority, in this case, the Pune Municpal Corporation (PMC) alone are the experts to be consulted on the question of shifting of reservation''. He observed that these experts were not consulted in this matter.
He also criticised the decision of the Pune commissioner to unilaterally withdraw the appeal in the Bombay High Court against the owner without the sanction of the standing committee and ruled it as ``an abuse as well as an overreaching of power by the Pune municipal commissioner''.
The decision not to go to the Pune corporation's general body despite the municipal officers' advices was inferred as ``decided efforts to steamroll theproposals which would obviate the need to go to the corporation''. The bench also rejected the Kothrud case, where the state law and judiciary department had concluded that reservation could be shifted without going to the elected representatives-ie the corporation- which was cited as a precedent for this case.
``The legal opinion in the Kothrud case was tailor-made,'' the bench observed and expressed surprise that the Section 13.5 of the Development Control rules of Pune, under which the reservation in this case was deleted and shifted without seeking the approval of the corporation, was not even supported in the court!
Copyright © 1999 Indian Express Newspapers (Bombay) Ltd.
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