MIG CRICKET CLUBversusABHINAV SAHAKAR EDUCATION SOCIETY AND ORS.

                    [2011] 11 S.C.R. 141


                    MIG CRICKET CLUB                               A
                               v.
 ABHINAV SAHAKAR EDUCATION SOCIETY AND ORS.
          (Civil appeal No. 2047 of 2007)
                    SEPTEMBER 5, 2011
                                                                   B
   [MARKANDEY KATJU AND CHANDRAMAULI KR.
                PRASAD, JJ.)

     Maharashtra Regional and Town Planning Act, 1966:
ss.31(1), 37(2) - Sanction to draft development plan - Held:       C
Development Plan existing prior to the coming into force of
the Act shall be deemed to be a sanctioned Development
Plan u/s.31(1) of Act - In the instant case, the Development
Plan existing prior to the commencement of the Act showed
the area in question as reserved for "playground" which was        D
modified to "school and cultural society" by State Governn:ient
in exercise of its power u/s.37(2) and earmarked for the
"school and cultural centre" by notification dated 25th April,
1985 - Such a course was permissible under law -
Notification dated 24th April, 1992 provided that State            E
Government in exercise of powers conferred u/s.31(1) had
modified the user of land to "playground" - This was not the
modification of the Development Plan ·but sanction of the
same in exercise of power uls.31 (1) of the Act - High_ Court
misdirected itself by considering notification dated 10th April,   F
1985 to be the sanction of the Development plan u/s.37(2) of
the Act and the notification dated 24th April, 1992 to be the
modification of the final Development plan which rendered its
order illegal.

     Administrative Law: Judicial review - Change in user of       G
land by State Government - Scope of judicial review - Held:
User of the land is to be decided by the authority empowered
to take such a decision and the Court in exercise of its power
of judicial review would not interfere with the same unless the
                               141                                 H
    142      SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A change if] the user is found to be arbitrary - 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 - Town planning.

         Interpretation of statutes: Legal fiction - Held.· When a
8
    legal fiction is created, it shall be given full effect - Generally
    legal fiction is created to advance public policy and preserve
    the rights of certain individuals and institutions - Legal fiction
    tends to treat an imaginary state of affairs as real and entails
    the natural corollanes of that state of aff3irs.
c
         The case of respondent no.1 was that it was granted
    lease of a portion of land for a period of 99 years by
    Maharashtra Housing and Area Development Authority
    (MHADA) and Bombay Housing and Area Development
D   Board (BHADB) with the consent of Municipal
    Corporation of Greater Bombay (Corporation). When
    respondent no.1 proposed to construct a school building
    thereon, it noticed that area in question was reserved for
    a playground in the draft development plan. Respondent
E   no.1 brought this fact to the notice of MHADA and
    BHADB and in response respondent no.1 was asked to
    get the user of land changed in accordance with law.
    Meanwhile, the Maharashtra Regional and Town Planning
    Act, 1966 came into force on 20.12.1966. In Febru.ary, 1984,
F   the Corporation passed a resolution sanctioning user of
    said plot for the purpose of constructing school. By
    notification dated 25.4.1985, the said land was earmarked
    for the school and cultural centre in the development plan
    of the area. During the period 1985-86, the appellant-club
G   approached the State Government for change of user of
    the said plot for "cricket playground". The attempts were
    made to convince respondent no.1 to shift the school to
    another plot as the plot in question was required by the
    appellant for its playground. Respondent no.1 did not
H   accept the proposal and by letter dated 10.11.1986 sought
 MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 143
                     SOCIETY

 permission to erect a compound wall on account of the          A
 threats given by the appellant. Respondent no.1
 submitted the development plan to the State Government.
 However, contrary to the expectations of respondent
 no.1, notification dated 24.4.1992 was published in the
 Gazette on 7 .5.1992 which revealed that the State             B
 Government in exercise of powers conferred under
 Section 31 (1) of the Act had modified the user of the land
 in question and instead of land being shown reserved for
 "school and cultural centre", it was shown as a
 '"playground". 'Respondent no.1 filed a writ petition          c
 challenging the notification and further fo'r a direction to
 the respondents to restore the reservation of plot for
 "school and cultural ·centre". The High Court quashed the
 notification dated 24.4.1992 holding that it was issued
 without consideration of the notification dated 10.4.1985      0
·which rendered the same illegal. The instant appeal was
 filed challenging the order of the High Court.

     Allowing the appeal, the Court

       HELD: 1.1. A plain reading of Section 35 of the          E
   Maharashtra Regional Town Planning Act shows that the
  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.
  Making of Development plan requires consideration of          F
  various inputs and for that, several bodies have to be
  consulted and various steps as provided in the Act are
 .required to be taken. Naturally it would take some time.
  A town cannot exist without a Development plan,
  otherwise it would lead to chaos.. No Development plan        G
, was made under the Act which came into force on 20th
  of December, 1966 and henc;e the legislature created a
  legal fiction by enacting Section 35 of the Act ltprovided
. for assuming a fact i.e. existence of a DeveJopment plan,
  which was, in fact, not made in accordance with the
                                                                H
    144     SUPREME COURT REPORTS             [2011] 11 S.C R.


A provisions of the Act. When a legal fiction is created, it
  shall be given full effect. Generally legal fiction is created
  to advance public policy and preserve the rights of
  certain individuals and institutions. Legal fiction t:ends to
  treat an imaginary state of affairs as real and entails the
B natural corollaries of that state of affairs. Hence, the
  Development plan, existing prior to the coming into force
  of the Act, shall be deemed to be a sanctionecj
  Development plar. under Section 31 (1) of the Act.
  Section 31 (1) confers power on the State Government to
c 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. Under the scheme of the Act, a
  minor modification of the Development plan by the State
  government in exercise of powers conferred is provided
0
  under SectiolJ 37(2) of the Act. [Paras 11, 12] [153-F-H;
  154-A-D; 155-C-D]                                       .

         1.2. Bearing in mind the scheme of the Act, the
    Development plan sanctioned by the State Government
E   before commencement of the Act, has become final
    Development plan under the Act. The Development plan
    existing prior to the commencement of the Act shows
    that the area in question was reserved for "playground"
    which was modified to "school and cultural society" in
F   exercise of power under Section 37(2) of the Act and
    earmarked for the "school and cultural centre" by
    notification dated 25th April, 1985. Such a course was
    permissible under law. It was the plea of Respondent
    No.1 that the Corporation informed it that in the proposed
G   Development plan the. area in question has been
    shown as "cricket club and playground". Had notification
    dated 25th April, 1985 been a sanction of final
    Development plan, the area in question ought not to have
    figured in the draft Development plan submitted to the
H   State Government. The draft plan submitted to the State
 MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 145
                     SOCIETY

 Government was considered by it and the Development                A
 plan dated 24th April, 1992 was sanctioned. This was not
 the modification of the Development plan but sanction of
 the same in exercise of the power under Section 31(1) of
 the Act. The High Court misdirected itself by considering
 the notification dated 10th April, 1985 to be the sanction         B
 of the Development plan under Section 37(2) of the Act
 and the notification dated 24th April, 1992 to be the
 modification of the final Development plan which has
 rendered its order illegal. It is trite that the validity of the
 order does not depend upon the section mentioned in the            c
 order. Wrong provision mentioned in the order itself
.does not invalidate the order, if it is found that order could
 be validly passed under any other provision. However in
 a case, like the instant one, contrary to what was
 mentioned in the notifications the Court cannot say that           0
 such powers were not exercised to render the notification
 illegal if in fact such power exists. [Para 13] (156-C-H; 157.:
 A-8]

     2. It is well settled that the user of the land is to be
decided by the authority empowered to take such a                   E
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
inv·olves consideration of competing claims and
requirements of the inhabitants in present and future so            F
as to make their lives happy, healthy and comfortable.
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. In the facts of
the instant case, the power was been exercised in                   G
accordance with law and there is no arbitrariness in the
same. (Para 14] (157-C-E]

     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2047 of 2007.
                                                                    H
    146       SUPREME COURT REPORTS             [2011] 11 S.C.R.


A       From the Judgment & Order dated 05.09.2005 of the High
    Court of Bombay in Writ Petition No. 1561 of 1992.

                                WITH

    Conmt. Pet. (C) No. 43 of 2007.
B
         Shyam Divan, Atul Y. Chitale, R.P. Bhatt, Jay Savla, S.
    Ghanekar, Rajesh Kothari, Renuka Sahu, Meenakshi Ogra,
    Vaishali Thorat, Karan Thorat, A.S. Bhasme, Pankaj Mishra,
    Nishtha Kumar, Suchitra Atul Chitale, Sanjay Kharde (for Asha
c   Gopalan Nair) Mahima C. Shroff, Chirag M. Shroff, Vinay
    Navare, Keshav Ranjan (for Abha R. Sharma) for the appearing
    parties.

          The Judgment of the Court was delivered by

D       CHANDRAMAULI KR. PRASAD, J. 1. Respondent No .
  .3, MIG Cricket Club has preferred this appeal by special leave,
   aggrieved by the judgment of the Division Bench of the
   Bombay High Court dated 5th of September, 2005 passed in
   Writ Petition No. 1561 of'1992 whereby it had allowed the writ
E petition and quashed the notification dated 24th of April, 1992,
   published 7th in the Gazette on of May, 1992 and further
   directed the respondents of the writ petition to restore the
   reservation of plot for "school and cultural centre".

F      2. According to the writ petitioner - Respondent No. 1
  Abhinav Sahkar Education Society, a Society registered under
  the Societies Registration Act, 1860 (hereinafter referred to as
  the "writ petitioner") it was allotted a portion of plot of land
  admeasuring 7224 sq. yards, bearing Survey No. 341 situated
G at MIG Colony, Gandhi Nagai", Sandra (East) in the city of
  Mumbai. Respondent No. 4, Maharashtra Housing and Area
  Development Authority (hereinafter referred to as "MHADA")
  and Respondent No. 5, Bombay Housing and Area
  Development Board (hereinafter referred to as "BHADB") with
  the consent of Respondent No. 3, Municipal Corporation of
H
 MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 147
      SOCIETY [CHANDRAMAULI KR. PRASAD, J.]

 Greater Bombay (hereinafter referred to as the "Corporation") A
 under a resolution of February, 1965 granted lease for a period
 of 99 years to the writ petitioner on a premium equivalent to
 the price fixed and payable annually by way of installments.
 According to the writ petitioner, however, on measurement of
 the plot, the area was found to be 7301.25 sq. yards and when B
 it proposed to construct a school building thereon, it came to
 its notice that the area in question has been reserved for a
 playground in the draft development plan. Writ Petitioner brought
 this fact to the notice of MHADA and BHADB by letter dated
 8th of May, 1968 and in answer thereto the writ petitioner c
 Society was asked to get the user of the land changed in
 accordance with law. Meanwhile, according to the writ petitioner,
 the Maharashtra Regional and Town Planning Act, 1966
 (hereinafter referred to as the "Act") had come into force on
 20th of December, 1966.
                                                                   D
        3. Further case of the writ petitioner is that by letter dated
  15th of November, 1978 the Secretary to the Government of
· Maharashtra in the Department of Housing and the Chief
  Executive Officer and Vice-President of MHADA in a letter
  addressed to the Secretary of Urban Development Department             E
  requested for modification of the draft development plan
  showing "school purpose" for the user of the said plot. By letter
  dated 1st of January, 1979, the Senior Town Planner of the
  Bombay Metropolitan Regional Development Authority directed
  the writ petitioner to furnish certain details and plans. According    F
  to the writ petitioner he duly complied with the direction. It has
  been further averred that by fetter dated 12th of November, 1979
  addressed to the Personal Assistant to the Minister for
  Education, his intervention was sought for the necessary change
  in the user of the land for the purpose of school. By fetter dated     G
  10th of August, 1983, the Under Secretary to the Urban
 Development Department of the State Government informed the
 writ petitioner that instruction has been issued to the
 Corporation for change of the user of the plot in question for
 school purposes. In February 1984,' according to the writ               H
     148      SUPREME COURT REPORTS               [2011] 11 S.C.R.


6.   petitioner. the Corporation passed a resolution sanctioning
     user of the said plot for the purpose of a school. Ultimately in
     exercise of the powers under Section 37(2) of the Act, a
     notification dated 10th of April, 1985 came to be issued and
     pu!Slrshed in the Government Gazette on 25th of April, 1985.
B    By the said notification the land admeasuring 6103.33 sq.
     meters out of Survey No. 341 (Part) was excluded from the site
     reserved for the playground and the land so released was
     earmarked for the "school and cultural centre" in the
     development plan of the area. The change of the user of the
C    said plot was also confir.med to the writ petitioner by the
     Executive Engineer, Town Planning (Division Plan) by the
     Corporation by letter dated 15th of April, 1985.

        4. It is th~ allegation of the writ petitioner that during the
  period 1985-1986 it came to its notice that Respondent No. 3
D of the writ petition i.e. MIG Cricket Club (the appellant herein)
  had also approached the State Government for change of the
  user of the said plot for "cricket playground". It is the case of
  the writ petitioner that attempts were made to convince it to shift·
  the school to another plot as the plot in question was required
E by the MIG Cricket Club (hereinafter referred to as "the Club")
  for its playground. Petitioner did not yield to the pressure and
  by letter dated 10th of November, 1986 sought permission to
  erect a compound wall on account of the threats given by the
  Club. The Corporation by its communication dated 24th of
F November, 1986 gave the permission sought for and informed
  the writ petitioner to submit development plan to the State
  Government. According to the writ petitioner, the Corporation
  informed it that in the proposed development plan submitted
  to the Government, by mistake it has shown the plot in question
G as "cricket club and playground". In the aforesaid premises
  petitioner was asked to approach the State Government to get
  the mistake rectified. As directed, the petitioner 8th by ~tter
  dated of November, 1986 approached the State Government
  for rectification of the mistake and the same was
H acknowledged by the· Corporation stating that appropriate
MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 149
     SOCIETY [CHANDRAMAULI KR. PRASAD. J.]

action would be tak~n in this regard However. to its surprise         A
the petitioner came across the notification dated24th of April,
1992 published in the Gazette on 7th of May, 1992 which
revealed that State Government in exercise of the powers
conferred under Section 31 ( 1) of the Act, had modified the user
of the land in question and instead of land being shown               B
reserved for "school and cultural centre" it was shown as a
"playground".

      5. Aggrieved by the same, the petitioner preferred the writ
petition inter alia challenging the aforesaid notification and        C
further. for a direction to the respondents of the writ petition to
restore the reservation of plot for "school and cultural centre" .

     . 6. Respondents in the writ petition including the Club, the
appellant herein, contested the writ petition and according to
them the notification dated 10th of April, 1985 was a minor           D
modification in relation to a specific plot of land of a
development plan sanctioned by the State Government before
the commencement of the Act. It was further pointed out that
the draft development plan for the entire area was already
prepared on 16th October, 1984 and after hearing the                  E
necessary objections and suggestion the revised draft
development plan was submitted on 29th of April, 1986 by the
Corporation with necessary modification to the State
Government. The same was finalized and the impugned
notification dated 24th of April, 1992 was issued and published       F
on 7th of May, 1992, whereby the land in question was shown
as reserved for the purpose of "playground". It has further been
averred by the respondents that the interest of the petitioner
was also safeguarded by reserving a plot towards the eastern
side of the plot in question for the "school and cultural centre".    G
According to the respondents such finalization of the plan was
done after hearing all the interested parties. It is the allegation
of the respondents that the school opened by the petitioner was
permanently closed since 1990 and on account of the failure
on the part of the petitioner to pay the premiums payable to
                                                                      H
    150       SUPREME COURT REPORTS                 [2011] 11 S.C R.


A   MHADA, the allotment in favour of the petitioner is liable to be
    cancelled. Respondents have further averred that the land in
    question was delivered to the Corporation which ih turn leased
    the same to the Club since September, 1974.

          7. In view of the pleadings of the parties the question which
8
    fell for consideration before the High Court was whether the
    notification dated 24th of April, 1992 issued in exercise of the
    powers under Section 31(1) of the Act was legal, valid and
    complied with the provisions of the Act.

C      8. The High Court on appraisal of the materials came to
  the conclusion that the notification dated 10th of April, 1985
  purportedly issued in exercise of the powers under Section
  37(2) of the Act was in fact issued in exercise of the power
  under Section 31(2) of the Act. While doing so the High Court
D observed as follows:

          ''The very fact that the draft development plan was prepared
          and placed for objections and suggestions from the
          members of the public on 30th April, 1984 and thereafter,
          by the notification dated 10th April, 1985 the respondents
E
          had finalized the reservation of the land in question to be
          for school and cultural centre, even though the notification
          on the face of it refers to the exercise of powers under
          Section 37(2) of the said Act, for all the legal purposes, it
          will have to be construed as having been issued in
F         exercise of powers under Section 31 of the said Act in
          relation to the area in question. It is pertinent to note that
          there is no dispute on the point that subsequent to the draft
          development plan was prepared on 30th April, 1984, there
          was no finalization of the said plan in terms of Section 31
G         of the said Act otherwise than the notification of 10th April,
          1985. Being so, there was no occasion for the
          respondents on 10th April, 1985 to exercise the powers
          under Section 37(2) which clearly speaks of modification
          in the final development plan."
H
MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 151.
     SOCIETY [CHANDRAMAULI KR. PRASAD, J.]

     As regards notification dated 24th otApril, 1992 said to        A
have been issued in exercise of the power under Section 31 (1)
of the Act, the High Court observed that in fact the State
Government exerci~ed the power under Section 37(2) of the
Act. In this connection, the High Court observed as follows:
                                                                     8
     "........ Once it was known to the respondents that the draft
     plan was prepared on 30th April, 1984 and was subjected
     to the objections and suggestions from the members of the
     public and thereafter, on 10th April, 1985, a part of such
     area was finalized and notified, mere reference in the
     notification to Section 37(2) of the said Act could not be      C
     construed to mean that the powers had been, in fact,
     exercised under Section 37(2). It will have to be construed
     as having been exercised under Section 31(1) of,the said
     Act, and for the same reason, it was necessary for the
     respondents to explain as to how and why the said               D
     notification dated 10th April, 1985 could not be considered
    ·or was not necessary to be construed while issuing the
     notification dated 24th April, 1992."

      Ultimately, the High Court held that the impugned              E
notification dated 24th of April, 1992 had been issued without
consideration of the notification dated 10th of April, 1985 which
renders the same illegal. While holding so the High Court
observed as follows:

      "......... The impugned notification is of dated 24th April,   F
      1992. Being so, once it is held that the impugned
      notification has not been issued in compliance with the
      provisions of law and the decision making process in that
      regard does not disclose the opportunity to the petitioner
      of being heard in the matter and the consideration of the      G
      notification dated 10th April, 1985 and application of mind
      by the concerned authorities before issuing the impugned
   ·· notification, for the 'reasons stated above, therefore, the
      impugned notification is liable to be quashed and set aside
    .                                                     \
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    152       SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A         to the extent it relates to the plot in question. Consequently,
          the respondents will have to be also directed to restore the
          reservation of the plot in question in accordance with the
          notification dated 10th April, 1985."

         Accordingly the High Court allowed the writ petition,
8
    quashed the impugned notification and granted the relief sought
    for by the writ petitioner.

          9. Mr. Shyam Divan, Senior Advocate appearing on behalf
    of the appellant contends that the High Court erred in holding
C   that the notification dated 10th April, 1985 is, in fact, final
    development plan in relation to the area in question as
    contemplated under Section 31 (1) of the Act. He points out that
    under Section 35 of the Act a development plan sanctioned by
    the State Government before commencement of the Act shall
D   be deemed to be final development plan sanctioned under the
    Act. According to him, the notification dated 1oth April, 1985
    modified the deemed final development plan which was in
    existence prior to the coming into force of the Act. Under the
    deemed development plan, according to Mr. Divan, the area
E   in question was shown as "playground" and hence, the
    modification in the final development plan can be done in
    exercise of the power conferred under Section 37(2) of the Act.
    In fact, while issuing the notification dated 10th April, 1985, such
    a power was exercised which would be apparent from the
F   notification and the site reserved for "playground" was
    earmarked for the "school and cultural centre". Mr. Divan further
    points out that the draft development plan submitted on 29th
    April, 1986 was sanctioned as development plan under Section
    31 (1) of the Act by notification dated 24th April, 1992 and the
G   notification itself shows that it was sanctioned under Section
    31 (1) of the Act. According to him, the High Court erroneously
    held that this notification, in fact, was issued under Section
    37(2) of the Act. In sum and substance, according to Mr. Divan,
    the notifications dated 10th April, 1984 and 24th April, 1992
    show that it were issued in exercise of the powers under
H
MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 153
     SOCIETY [CHANDRAMAULI KR. PRASAD, J.]

Section 37(2) and Section 31 (1) of the Act, but the High Court    A
misdirected itself and held the same to have been issued under
Sections 31 (1) and 37(2) of the Act respectively.

      10. Ms. Vaishali Thorat, however, appearing on behalf of
Respondent No.1 submits that the notification dated 10th April,    8
1985 was a final development plan sanctioned under'Section
31 ( 1) of the Act and without considering the same i! has been
modified by the impugned notification dated 24th April, 1992
in exercise of the power under Section 37(2) of the Act which
renders the same illegal in the eye of law. She further points     C
out that non-consideration of the notification dated 10th April,
1985, while issuing the notification dated 24th April, 1992
vitiates the impugned notification.

     11. Rival submissions necessitate examinatior. of the
scheme of the Act. Section 35 of the Act which is ~levant for      D
the purpose, reads as follows:

     "35. Development plans sanctioned by State
     Government before commencement of this Act :

    If any Planning Authority has prepared a Development plan      E
    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."
                                                                   F
     From a plain reading of the aforesaid provision, it is
evident that the 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. Making of Development plan requires consideration of          G
various inputs and for that several bodies have to be consulted
and various steps as provided in the Act are required to be
taken. Natural!~ it would take some time. A town cannot e)\ist
without a Development plan, otherwise it would lead to chaos.
No Development plan was made under the Act which came into         H
    154       SUPREME COURT REPORTS                  [2011] 11 S.C.R.


A force on 20th of December, 1966 and hence the legislature
  created a legal fiction by enacting Section 35 of the Act. It
  provided for assuming a fact i.e. existence of a Development
  plan, which was, in fact, not made in accordance with the
  provisions of the Act. It has to be borne in mind that when a
B legal fiction is created it shall be given full effect. Generally legal
  fiction is created to advance public policy and preserve the
  rights of ce.rtain individuals and institutions. Legal fictioni tends
  to treat an imaginary st?te of affairs as real and entails the
  natural corollaries of that state of affairs. Hence, the
c Development plan, existing prior to the coming into force of the
  Act, shall be deemed to be a sanctioned Development plan
  under Section 31 (1) of the Act.

         12. Section 31 (1) of the Actinter alia provides for sanction
    of the draft Oevelopment plan, the same reads as follows:
D
          "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
E
          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
F         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 modifyir!Q 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:
G
                 Provided that, the State Government may, if it thinks
          fit, whether the said period has expired or not, extend from
          time to time, by a notification in the Official Gazette; the
          period for sanctioning the draft Development plan or
H
MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 155
     SOCIETY [CHANDRAMAULI KR. PRASAD, J.)

    refusing to accord sanction thereto, by such further period      A
    as may be specified in the notification:

            Provided further that, where the modifications
     proposed to be made by the State Government are of a
     substantial nature, the State Government shall publish a
     notice in the Official Gazette and also in local newspapers
                                                                     B
     inviting objections and suggestions from any person in
     respect of the proposed modifications within a period of
     sixty days from the date of such notice."

       The aforesaid provision confers power on the State            C
Government to 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. Therefore, Section 31 of the Act operates in
the field of the power of the State Government to sanction a         D
draft Development plan. Under the scheme of the Act, a minor
f'T'!Odification of the Development plan sanctioned under Section
31 (1) of the Act is provided under Section 37(2) of the Act. It
reads as follows:

     "37. Minor modification of final Development plan.              E

     (1) xx xx xx

    (2) The State Government may, after making such inquiry
    as it may consider necessary after hearing the persons           F
    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      G
    Development plan shall be deemed to have been modified
    accordingly."

    From a plain reading of the aforesaid provision it is
evident that the State Government has been conferred with the
                                                                     H
    156     SUPREME COURT REPORTS                [2011] 11 S.C.R.


A. power to make minor modification to the final Development
   plan. Thus, under the scheme of the Act, a Development plan
   sanctioned by the State Government prior to the
   commencement of the Act, shall be deemed to be the final
   Development plan and there can be minor modification in such
8 Development plan by the State Government in exercise of
   power conferred under Section 37(2) of the Act. Sanction of
   draft Development plan is provided under Section 31 (1) of the
   Act.

         13. Bearing in mind the scheme of the Act, as aforesaid,
C we are of the opinion that the Development plan sanctioned by
  the State Government before commencement of the Act, has
  become final Development plan under the Act. The
  Development plan existing prior to the commencement of the
  Act shows that the area in question was reserved for
D "playground" which was modified to "school and cultural society"
  in exercise of power under Section 37(2) of the Act and
  earmarked for the "school and cultural centre" by notification
  dated 25th April, 1885. Such a course was permissible under
  law. It is the writ petitioner's plea that the Corporation informed
E it that in the proposed Development plan the area in question
  has beenshown as "cricket club and playground". Had the
  notification dated 25th April, 1985 been a sanction of final
  Development plan, the area in question ought not to have
  figured in the draft Development plan submitted to the State
F Government. The draft plan submitted to the State Government
  was considered by it and the Development plan dated 24th
  April, 1992 was sanctioned. This, in our opinion, is not the
  modification of the Development plan but sanction of the same
  in exercise of the power under Section 31 (1) of the Act. It
G seems that the High Court misdirected itself by considering the
  notification dated 10th April, 1985 to be the sanction of the
  Development plan under Section 37(2) of the Act and the
  notification dated 24th April, 1992 to be the modification of the
  final Development plan which has rendered its order illegal. It
H is trite that the validity of the order does not depend upon the
 MIG CRICKET CLUB v. ABHINAV SAHAKAR EDUCATION 157
      SOCIETY [CHANDRAMAULI KR. PRASAD, J.]

section mentioned in the order. Wrong provision mentioned in          A
the order itself does not invalidate the order, if it is found that
order could be validly passed under any other provision.
However in a case, like the present one, contrary to what have
been mentioned in the notifications the Court cannot say that
such powers were not exercised to render the notification illegal     B
if in fact such power exists.

     14. 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      C
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.
                                                                      D
     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.
In the facts of the present case, we find that the power has been
exercised in accordance with law and there is no arbitrariness        E
in the same.

    15. In the result, the appeal is allowed, the impugned
judgment of the High Court is set aside. However, there shall
be no order as to costs.
                                                                      F
CONTEMPT PETITION © N0.43 OF 2007:

     16. In view of the order passed in Civil Appeal No.2047
of 2007, we are not inclined to entertain the contempt petition.
The Contempt Petition stands dismissed. .                             G

D.G.                                       Matters disposed of.