Atul Projects India Pvt Ltd v. Municipal Corporation of Greater Mumbai & Ors.

13. Between 11th August 2009 and 9th November 2011, the MCGM issued various permissions and sanctions to the Petitioner including an Intimation of Disapproval or IOD, the usual negatively worded building permission, and the CC. In November of that year, MCGM accepted the Petitioner’s application for an alignment of the already once realigned 18.[3] meter DP Road which affected a portion of Petitioner’s plot. Ultimately, on 7th June 2013 the MCGM issued a possession receipt. This covered 276 sq mts and possession of this was admittedly delivered to the MCGM.

14. There now follow a series of what Mr Kamat calls opinions obtained by the MCGM and which he says are directly and diametrically opposite to the stand that it has taken in the Petition. Among these is the opinion of the legal department. There are also opinions of a Senior Counsel and so on. This unfortunately — and possibly needlessly — opens up an entirely different avenue of inquiry as to whether opinions obtained by one party can, should, or may properly be used in a litigation by the opposite party, but we propose to let this pass. We will not be basing any part of our judgment today on what a particular opinion obtained by the MCGM said or did not say. As far as we are concerned, no judgment of a court can be determined on the basis of an opinion obtained by one side or the other. At best, therefore, this may be what is popularly known amongst Senior Counsel throughout the country as a ‘talking point’, but little beyond that. What is of relevance is how MCGM conducted itself because this is clearly not a solitary case. It is by no means the only such case that has come before the Court nor is it the only such case that came to the MCGM at all.

15. This is of some consequence because, as Mr Kamat puts it, an inconsistent approach between those similarly placed leads us into a straightforward Article 14 challenge. We believe he is correct therefore when he draws our attention to Exhibit “L” at page 80 of the Petition. This is in relation to another property. The architect in question, one Shirvatkar, made an application and MCGM prepared a note for a legal opinion precisely on this question of whether an amenity open space could be adjusted against the Development Plan Regulation under DCR 57(4)(c).

16. At this stage, therefore, we need to turn to that DCR 57 for its precise wording. This DCR speaks of a special industrial or I-3 zone. It reads thus: “57. Special Industrial Zone (1-3 Zone): (1) General conditions governing the uses permitted in an 1-3 Zone—The Special Industrial Zone (1-3 Zone) includes any building or part of a building which is used for the storage, handling, manufacturing or processing or highly combustible or explosive materials or products which are liable to burn with extreme rapidity of which may produce poisonous fumes or explosions; for storage, handling, manufacturing or processing which involve highly corrosive, toxic or various alkalis, acids or other liquid, or chemicals producing flames, fumes and explosive, poisonous, irritant or corrosive gases; or for the storage, handling or processing of any material producing explosive mixtures of dust or which result in the division of matter into fine particles capable of spontaneous ignition. Examples of buildings in this class are those used for: (a) … (b) … (c) … (d) … (2) … (3) … (4) … (a) … (b) …

(c) With the previous approval of

Commissioner, any open land or lands or industrial lands in the Special Industrial Zone (1-3 Zone) (including industrial estate), excluding lands of cotton textile mills, may be permitted to be utilized for any of the permissible users in Residential Zone (R-1 zone) or the Residential Zone with shop line (R-2 Zone) or for those in the Local Commercial Zone (C-1 Zone) subject to the following:

(i) The conversion of Industrial Zone to

Residential / Commercial Zone in respect of closed industries shall not be permitted unless NOC from Labour Commissioner, Maharashtra State, Mumbai stating that all legal dues have been paid to the workers or satisfactory arrangement between management and workers have been made, is obtained. Provided that where conversion has been permitted on the basis of this Certificate, occupation certificate will not be given unless a no dues certificate is granted by Labour Commissioner. However, in respect of any open land in the industrial zone, where industry never existed, NOC from Labour Commissioner is not required. The layout or sub-division of such land shall be approved by the Commissioner, who will ensure that 5% land for public utilities and amenities like electric, sub-station, bus-station, sub-post office, police out post and such other amenities, as may be considered necessary, will be provided therein.

(ii) In such layouts or sub-divisions having areas more than 2 ha, but less than 5 ha 20 per cent land for public utilities and amenities like electric, sub-station, bus-station, sub-post office, police out post, garden, playground, school dispensary and such other amenities shall be provided. In such layout or sub-division each more than 5 ha. in area, 25% land for public utilities and amenities like electric, sub-station, bus-station, sub-post office, police out post, garden, playground, school dispensary and such other amenities shall be provided. Provided that at least 50% of the amenity space shall be designated as open space reservation. These areas will be in addition to the recreational space as required to be provided under regulation No. 23.

(iii) The required segregating distance as prescribed under these regulations shall be provided within such land intended to be used for residential or commercial purposes.

(iv) Such residential or local commercial development shall be allowed within the permissible FSI of the nearby residential or commercial zone.

(v) Provision for public utilities, amenities and open space shall be considered to be reservation in the development plan and Transferable Development Rights as in Appendix VII or FSI of the same shall be available for utilization on the remaining land. Provided that public utility and amenity plots shall not be developed as per Regulation 9. Note:

I. Conversion from industrial zone to residential / commercial zone shall be applicable to the part area of land holding subject to the condition that total area of the entire land holding shall be considered for deciding the percentage of and to be reserved of the said part area of land for public amenity spaces, as per the said Regulation. However, necessary segregating distance shall be provided from industrial use.

II. In the layout, where Development Plan has provided any reservations:

III. Out of the total floor area proposed to be utilized for residential development, 20% of the same shall be built for residential tenements having built up area up to 50 sq.mt.” (Emphasis added)

17. Although there is then a reference to various opinions including of a Senior Counsel, we proceed straight away to page 96 of the Petition. This is a note that was prepared by the MCGM in regard to architect Shirvatkar’s application. His representation is noted at page 96. Paragraph 6 at page 97 deals with layout and amenity space. There is an area statement that is given. Then in paragraph 7 at page 100, there is a reference to the DCR provision including DCR 57(4)(c) and DCR 57(4)(c)(ii). The Note that we have extracted above is quoted. The remarks from the departments concerned are then covered in paragraph 8 and the opinion in paragraph 9. At page 103, there are specific questions in items 2 and 3 of the table at page 103 and then the corresponding answers, as shown below.

2) Whether this office can adjust the area of D.P Road of entire layout of residential Zone and Industrial Zone against the required amenity space of 25% In view of the views/remarks of the undersigned of point No. 1, you can adjust the area of D.P. Road of entire layout of residential zone and industrial zone against the required amenity space of 25%.

3) Whether this office can adjust the area of D.P. road and R.G. which is in possession of MCGM against the required amenity space of 25% In view of point Nos. 1 and 2, you can adjust the area of D.P. Road and R.G. which is in possession of MCGM against the required amenity space of 25%. “Legal department of MCGM in its opinion/report has mentioned that “Regulation 57(4)(c)(ii) Note II contemplates set off for the requirement of public amenity space of 25% against any reservation and in view of the fact that, D.P. Road can be designated as a reservation by virtue of section 22(d) read with section 126 of MRTP Act. It cannot be disputed that, the provisions contemplated in the Development Plan for D.P. Road is a reservation on the subject property. Since the Regulation 57(4)(c) of the DCR 1991 contemplates for providing public amenities which necessarily includes road and further such road can be designated on the D.P. Plan as a reservation and such reservation is allowed to be set off under Regulation 57(4)(c) Note II of DCR. It is further stated that, in this proposal the area under Development Plan reservation is 27806.90 sq.mt. The required area of Public Amenity spaces is 24731.33 sq.mt. The area under Development Plan reservation is more than the required area of public amenity spaces, then the provision for public amenity spaces is not necessary as per provisions of Note II under clause 57(4)(c) of DCR 1991 by giving I to R permission.” (Emphasis added)

18. So far, this tells us that the question of adjusting an amenity space reservation against a DP Road reservation was not new or peculiar to the Petitioner’s present case. It had come to the MCGM before. Opinions had been taken. We are not concerned with the contents of those opinions. It is enough to note that the MCGM, guided by those opinions, accepted the position as a matter of administrative or executive action, to set off the amenity space reservation against the surrender of land for a DP Road. It did so not on the basis of some ad hoc or discretionary exercise of jurisdiction but specifically on a consideration of DCR 57(4)(c) and specifically DCR 57(4)(c)(ii) and Note II.

19. The note in that DCR relates to conversion from industrial zones to residential or commercial zones. Clause II of that Note speaks about reservations in the layout where such reservations are shown on the development plan. Sub-note A then says that if the area under the DP reservation is less than the required area of the public amenity space as per the regulation then only the difference in the area is to be provided in the public amenity space. If the DP reservation is more, then the provision for a public amenity space is not necessary.

20. Indeed, independently of what the MCGM was advised and what it actually did, and leaving aside for a moment the decisions that Mr Kamat relies on, we believe that on its own this note is wholly logical. It would otherwise make no sense at all to have a ‘double reservation’ in the manner that is now being suggested in this particular case.

21. Accordingly, on 14th October 2014, the Petitioner’s architect made an application (copy at Exhibit “O” at page 105) to Respondent No. 4, the Executive Engineer of the MCGM, for permission to adjust the DP Road reservation against the open amenity space requirement. On 7th January 2015, the Petitioner wrote to the Chief Engineer of the MCGM requesting that it be permitted to adjust 5% amenity space on the basis of DCR 57 specifically invoked. A reminder followed on 27th January 2015. Copies of these documents are at Exhibit “P” at page 107 and Exhibit “Q” at page 109 respectively.

22. This unsettled state of affairs led the Petitioner to file Writ Petition (L) No. 1685 of 2015 and on this Petition on 29th June 2015, this Court made an order directing the MCGM to consider the Petitioner’s application made on 14th October 2014 and in January 2015 within six weeks. The Petitioner sent a copy of this order on to the MCGM.

23. This met with the usual bureaucratic response that we are never able to understand because on 12th April 2016 the MCGM said that since the Petitioner’s Writ Petition was pending it could not process the application. This is simply bizarre because the order of the Court required the MCGM to consider that application and we entirely fail to see how the MCGM could have said that because the High Court had not disposed of the Writ Petition, therefore it could not follow an order of the High Court itself. In any case, confronted with this, the Petitioner did the next best thing — it withdrew its earlier Writ Petition. In light of this, the Petitioner wrote to the MCGM on 23rd May 2016 asking it to now consider its application for an adjustment of the 5% open space amenity against the DP Road.

24. We come now to 21st July 2016. On this date MCGM published a notice stating that the State of Maharashtra intended to modify DCR 57 and therefore suggestions and objections were invited. A copy that notification of 21st July 2016 is at page 198. This is the notice by which suggestions and objections were invited to the proposed modifications inter alia DCR 57(4)(c). This Notification is central to Ms Shastri’s case, and we will consider this shortly. At page 201, we find the relevant portions of the 21st July 2016 UDD notification.

25. On 19th August 2016, the Petitioner sent its objections to the proposed modification.

26. We are not concerned with an internal note that the MCGM may have made on the Petitioner’s application.

27. On 21st September 2016, the Executive Engineer rejected the Petitioner’s application. The reason given was that the application was not in consonance with the 24th August 2016 circular issued by the MCGM. A copy of that circular is at Exhibit “FF” at page 212 and rather than return to it at a later stage, we believe that it is necessary to see it immediately.

28. The circular says that recently the UDD had published a notice proposing a modification inter alia to 57(4)(c), a reference to the 21st July 2016 modification notification Then the circular says that policy guidelines would be followed thereafter, i.e., after the circular, for allowing residential or commercial use on land situated in general industrial and special industrial zone land inter alia under DCR 57(4)(c). Item 4 of the table in that circular relates to OCs to all buildings. It says that these applications are to be processed as per the notification dated 21st July 2016 of the State Government.

29. We pause briefly to note is the sequence in which Ms Shastri has positioned her case. She accepts that prior to the impugned rejection adjustment or set offs had been granted (in other cases). But, she says, there was then a proposed modification of the applicable DCR 57(4)(c). The State Government had invited suggestions and objections by its notice dated 21st July 2016 and had set out the proposed modifications. This was therefore a draft modification. The MCGM for its part issued a circular only saying that OCs (with which we are concerned) would, as a matter of guideline, follow the proposed draft modification under the UDD notification of 21st July 2016. In her submission this would have to be read with Section 46 of the MRTP Act and her submission is simplicity itself: “What choice did the MCGM have in the matter?” she asks. “We could hardly ignore Section 46. Nor could we ignore the UDD draft modification or our own circular.” If all these are put together, she submits, then the application that the Petitioner made had to be rejected.

30. Her emphasis in particular is on Clauses A and B of Item II of the note in the UDD modification notification of 21st July

2016. We reproduce the whole of the note from page 201. Note:

II. In the event of DP having provided a reservation/reservations on a plot desiring conversion from Industrial Zone to Residential / Commercial Zone, the following shall apply: a. If the area under DP reservation to be handed over to MCGM (excluding the areas under DP roads/ road setback) is less than the required area of public amenity space as per this Regulation, only the additional land area shall be provided for public amenity spaces. b. If the area under DP reservation to be handed over to MCGM, (excluding the areas under DP roads / road setback), is more than the required area of public amenity spaces as per this Regulation, then the provision for public amenity spaces is not necessary. c. In case of plot area under conversion is less than 2000 sq.mt. Land component either 10% amenity space in the form of open land or 5% built up space shall considered for the purpose of amenity space as per note (a) and (b) above.”

31. Ms Shastri’s effort is to say that by the proposed draft modification an exclusion was sought to be introduced, i.e., the area under DP Road was to be excluded. This meant that there could be no adjustment of the 5% open amenity space against the area under the DP Road. So long as this remained in draft, in Ms Shastri’s submission, there was no question of allowing that adjustment.

32. We will return to a consideration of the argument shortly. We have only noted it at this stage because the notification and the circular occur at this point in the chronological narrative.

33. To very briefly complete this portion of it, on 28th July 2020, MCGM issued a CC. This had its note that development permissions had been granted to the Petitioner pending the delivery of possession of 5% amenity space. On the same day, there was a building report prepared by the MCGM regarding compliance with the CC conditions. This is included in the Interim Application that is before us.

34. We proceed immediately to the three orders to which Mr Kamat has invited our attention.

35. The first judgment of Wadhwa Residency Private Limited & Ors v Municipal Corporation of Greater Mumbai & Ors[3] was by Division Bench (Anoop V Mohta J and AA Sayed J, as he then was) 3 2014 SCC OnLine Bom 354: (2014) 4 Bom CR 845. on 13th March 2014. It opens with the observation that a property development was frustrated because there was an inordinate delay in granting permission to the petitioners to change and utilise a railway reservation as an amenity under the DCRs. Sections 37 and 46 of the MRTP Act were noted. Then, DCR 57 was set out. The Division Bench observed that DCR 57 permitted changes from an industrial to a residential or commercial zone. The Division Bench relied on the decision of the Supreme Court in Oswal Agro Mills Limited v Hindustan Petroleum Corporation Ltd and Ors.[4] The Division Bench said that the Regulations did not require prior permission or sanction from the State Government.

36. Mr Kamat submits that paragraph 10 of the judgment shows that case was exactly on all fours with the present one. Paragraph 10 at pages 126 and 127 of the paper book reads thus: “10. On 15.02.2010, the Mumbai Municipal Corporation addressed a letter to the Principal Secretary, Urban Development Department seeking clarification whether the area of 15.24 meters wide Railway Reservation which is proposed to modify the new DP Road by Urban Development Department where 37(1) and also 37(1A) is already issued by Urban Development Department and also suggestions/objections in this respect have been invited by D.D.T.P can be adjusted against Amenity open space required as per modification Regulations 57(4)(c) of DC Regulations 1991 Notification dated 14 May, 2007; and whether DP Road can be treated as reservation and can be adjusted against Amenity open space.”

37. Clearly, there was a case of adjusting reservations. Then in paragraph 15 at page 129 the Division Bench observed: “15. The Respondents have already granted permission by communication dated 24.02.2010 for development in question. However, no benefits of adjustment of reservation against amenities as required are granted to the Petitioners, under DC Regulation 57(4)(c)(ii) and Note appended thereto. The Petitioners, therefore, challenge arbitrary, unreasonable and discriminatory action of Respondents by this petition in March 2013.”

38. The Division Bench observed that the relief that the petitioner before it sought had been granted to another party. The Court held that the reliefs sought were within the purview of the policy. It interpreted ‘any reservation’ to mean and include all reservations. There, the issue was of a railway reservation. The Court held that once the railway reservation was a reservation as contemplated in law, an adjustment was permissible inter alia under Note II (extracted above). The Petition was accordingly allowed.

39. Wadhwa Residency was followed by a Division Bench of this Court in Shree Sai Baba Municipal Market Vyapari Welfare Association v Municipal Corporation of Greater Mumbai and Ors, delivered on 18th September 2014.[5]

40. Mr Kamat’s next waypoint is the decision of the Division Bench (of the same composition) on 29th October 2015 in Runwal Homes Private Limited & Anr v Municipal Corporation of Greater 5 2014 SCC OnLine Bom 1259: (2014) 6 AIR Bom 359. Decided on 18th September 2014. Mumbai & Ors.[6] This too was a case of an adjustment of reservations and reference was made to the previous judgment of this Court in Wadhwa Residency. Runwal Homes was also a case of a DP reservation. Paragraph 23 of the judgment makes an important observation that the MCGM could not ‘discriminate against’ the petitioner by denying the benefits of adjustment of the DP reservation against the amenity space to the extent of the DP Road. This tells us that the policy is (or was) not to insist on the amenity space, but to allow the setting off.

41. Mr Kamat then refers to the order of the Supreme Court of 11th January 2016 in an Special Leave Petition (Civil) NO. 46 of 2016 filed by the MCGM in the Runwal Homes case. The Special Leave Petition failed. Keeping this in mind, Mr Kamat’s submission is that there is no question of denying the Petitioner the benefit of an adjustment. The proposed modification remained in that form, as a draft, and was never finally sanctioned. DCR 1991 has since been replaced by DCPR 2034 at least for the city of Mumbai. It is inconceivable, Mr Kamat submits, that by a proposed modification inviting suggestions and objections a sanctioned development plan could be thrown in to disarray in perpetuity. It is even more inconceivable that subordinate legislation such as the DC Regulations could be further modified in the manner not contemplated by statute by simply inviting suggestions and objections, and leaving it at that, with the planning authority issuing a circular, lower in echelon, to refuse precisely the kind of adjustments that not only had the MCGM previously allowed, but which had come before the Court and which the Court had determined were required to be allowed as a matter of law.

42. He also submits that it is unthinkable that a judgment of a Court, let alone one that has attained finality on the dismissal of a Special Leave Petition, could be set at naught by the simple device of issuing a notification proposing a draft modification notification and never actually sanctioning it. This is precisely the sum and substance of the MCGM’s argument. It amounts to saying that DCR 57(c)(4) as it exists on the statute book is now nullified and wiped out by a proposed modification that was never brought into force, that remained in draft, and in respect of which the MCGM issued an internal guidance circular. How this process can be used to undo the effect of binding judgments of the Court is never explained.

43. Ms Shastri’s answer to this is to say that the judgments in Wadhwa Residency and Runwal Homes both predate the UDD notification of 27th July 2016 and the subsequent MCGM circular. Apart from the arguments that we have noted above, she refers to certain decisions of the Supreme Court for the proposition that the application has to be considered in light of the law as it stands on the date of the grant of permission.

44. The first decision she cites is Howrah Municipal Corporation & Ors v Ganges Rope Co Ltd & Ors[7] of the Supreme Court. The first submission is that merely applying for permission does not create any vested right in the party making the application. The second argument is that sanction has to be granted on the basis of building rules prevalent at the time of grant of the sanction, not at the time of the application for the sanction. In Howrah Municipal Corporation and Ors, the Supreme Court held there is no right to demand the application of the regime as it stood on the date of the application.[8]

45. The Howrah Municipal Corporation Court relied on the decision of the Supreme Court in Usman Gani J Khatri of Bombay v Cantonment Board & Ors.[9] That was a case involving construction proposed in the Pune Cantonment Board area. The petitioners all claimed to be entitled to the building regulations or restrictions as they existed at an earlier point in time (when the permissible area to be constructed was more). The petitioners did not submit revised building plans. The Cantonment Board pointed out that the earlier and more lenient regime had resulted in undue benefits to builders. It insisted that the new, and more stringent, controls should govern. As a finding of fact, the Supreme Court found that some builders had put up constructions that did not conform to the later restrictions. It negatived the plea of the builders to be allowed to follow the earlier restrictions. In paragraph 28, the Supreme Court held that the scheme of building regulations or restrictions in force at the relevant time, i.e., the later and the more stringent set of restrictions would apply.

8 And merely because a particular party had approached a Court, this would not give it any special right or vested right to apply an earlier provision.

46. The Supreme Court followed and applied the ratio in Usman Khatri in State of West Bengal v Terra Firma Investment & Trading Pvt Ltd. 10

47. Mr Kamat’s answer is that this submission by Ms Shastri is not just over simplistic, but it is utterly facile. It amounts to saying that a corporation can simply delay the grant of permission and wait indefinitely until the law changes to ensure that an application is refused. This is not the purport of any of the judgments cited by Ms Shastri. A telling circumstance is in the Usman Khatri case where the Petitioner before the High Court and the Supreme Court wanted to derive an additional benefit on the basis of a previous development control regime and failed to make an application under the revised, later regulations. This was impermissible.

48. It is in this context that Mr Kamat invites attention to the critical dates. Possession of the DP Road was delivered on 7th June

2013. That is the date of the possession receipt. The two reservations of the 5% amenity space and the DP Road obviously predate the delivery of possession of the DP Road. The decisions in Wadhwa Residency and Shree Sai Baba Municipal Market are of 2014. Runwal Homes followed in 2015. In an almost identical situation, an adjustment was granted on 15th May 2014 to another party. The Petitioner’s own application was of 14th October 2014 and was made once again on 7th and 27th January 2015. The High Court order directing a consideration was of 29th June 2015. The UDD draft modification notification at page 198 did not actually come until 21st July 2016. Just a look at the way these dates cascade is, in Mr Kamat’s submission, a complete answer and sufficient reason that the Petition must be allowed. This is not a case of the Petitioner seeking to apply under an old regime. This is a case of the Municipal Corporation failing to grant permission, though clearly allowable under the regulations as they then stood and under binding decisions of the Court, at the relevant time. If anything, the decisions in Usman Khatri and Terra Firma are against the Municipal Corporation: just as a developer or private owner cannot invoke a past and more lenient regime after a new regime has come into force, a Municipal Corporation cannot unreasonably and unduly deny or delay permission under an existing regime and, only after a later set of restrictions comes into being, rely on the latter. Nothing is shown to us to indicate that the relief of setting off sought by the Petitioner could not have been granted even previously. There is no explanation at all for why the permission was not granted when it was made although it had been granted to others, there were High Court judgments to that effect, and every consultant of the MCGM also said that the setting off had to be allowed.

49. Finally, it is his submission based on Article 14 of the Constitution that this conduct of the MCGM is facially and manifestly arbitrary. It cries out for judicial review. He says he hesitates to use any stronger descriptor such as perversity, but there is simply no other way to describe this. There is not only hostile and invidious discrimination where likes have not been treated alike, but the equal protection of laws and equality before the law have both been denied to this Petitioner. Viewed from any perspective, therefore, in his submission, there is simply no answer to the Petition.

50. It is not necessary, therefore, to proceed to any other argument of a more intricate nature whether founded under Article 19 or Article 300A of the Constitution of India. All that the Petitioner seeks is an application of the law as it stood, and as it was in fact applied, by the Municipal Corporation in applicable cases and as it was held had to be applied by not one but three separate Division Bench judgments of this Court. We believe Mr Kamat is correct: it is entirely impermissible for the MCGM to escape its obligations in this manner. Indeed, the entire construct presented to us by Ms Shastri itself raises a quite significant dilemma. If that line of argument is to be accepted, it means that a sanctioned final development plan can effectively be modified almost from beginning to end by the simple device of issuing a draft proposed modification, never actually sanctioning the modification, but requiring the planning authority to have regard to it while granting permissions. This would make a complete mockery of the planning process. Correctly read, what Section 46 says is that a draft modification must be taken into consideration while it is legitimately still in the form of a draft, i.e., it is going through the process required to either finally sanction the modification or to withdraw it. Section 46 does not contemplate a situation where a draft is introduced and then left hanging in the form of a draft for all time to come. That would be a thoroughly unreasonable reading of the statutory provision and might well lead to, in a given case, this provision having to be read down or even struck down. It is not his intention, Mr Kamat says, to go that distance in this particular case. Fortunately, it is not even required. But Ms Shastri’s reading of Section 46 in this context does certainly render vulnerable the Section itself if this interpretation is to be adopted. On the other hand, the interpretation commended by Mr Kamat, whether this is viewed through the lens of any of the well-established principles of statutory interpretation such as purposive construction or the mischief rule, is that the Court will strive to uphold the vires and constitutional validity of a particular section if plainly read this can be done. No interpretation should be permitted as would leave to a vulnerability or a patent absurdity. Nor should ambiguity be introduced where the plain language provides a clear line of interpretation free of all ambiguity.

51. Consequently, having regard to the facts and circumstances of the case and the settled law, we make Rule absolute now in terms of prayer clauses (b) and a(i), a(ii) and a(iii) (in that order, since, obviously, a certiorari must precede a mandamus). There will be no order as to costs. (Kamal Khata, J) (G. S. Patel, J)