JUDGMENT B.P. Dharmadhikari, J.
1. By this petition filed under Article 226 of the Constitution of India the petitioner, a Society registered under the Societies Registration Act, 1860, has challenged the communication dated 12-4-1991 issued by the Trust Engineer, informing the petitioners that the land, which is under reference No. W-87 for Architect Association, cannot be allotted to them. The petition has been filed sometime in the month of June-1991. It appears that, later on in exercise of powers under Section 31(1) of the Maharashtra Regional and Town Planning Act, 1966, respondent No. 2-State of Maharashtra has sanctioned draft development plan, in which such reservation in favour of petitioner has been removed. Challenge to this Notification published on 21-9-2001 in Government Gazette has been incorporated by way of amendment. It further appears that after finalization of development plan in terms of Section 31(6) of the Maharashtra Regional and Town Planning Act, respondent No. 1-Nagpur Improvement Trust decided to develop it on BOT basis and called tenders for the work. The offer made by respondent No. 4 came to be accepted and that is how respondent No. 4 has been added on 6-10-2004.
2. The parties, before beginning the argument, have invited attention of this Court to the fact that a judgment concerning the same site has been delivered by the Division Bench of this Court on 3-7-2003 and it is reported in 2004 (2) Mh.L.J. 252 Cine Exhibition Association, Nagpur v. State of Maharashtra and Ors. It is stated that commercial user of the said site has been approved by the Division Bench. The Division Bench has prohibited only construction of Cinema Theater on it. The learned Counsel appearing on behalf of the petitioner has stated that the said judgment of the Division Bench has been challenged by the Nagpur Improvement Trust in Special Leave Petition before the Hon'ble Supreme Court and the Hon'ble Apex Court has been pleased to grant leave in the matter. Therefore, a request was made to postpone the consideration of the present petition. However, after hearing all the counsel, we are of the opinion that decision of the Hon'ble Apex Court in the matter will, at the most, better the situation for respondent No. 1-Nagpur Improvement Trust and respondent No. 4, who has undertaken the construction work. Therefore, we find that decision of the Hon'ble Apex Court is not going to affect the present controversy in the matter. Hence, Writ Petition was taken up for final hearing.
3. The petitioner claims that it is a Society, registered under the provisions of Societies Registration Act, 1860 and as per the provisions of Section 22 of the Maharashtra Regional and Town Planning Act, 1966 the site in question, which is located on North Ambazari Road in Lendra area of the City of Nagpur, has been shown as reserved for the petitioner Association. It is stated that the said reservation is at Item No. 66 and the site in question as divided is between Town Planners Association and the petitioner Association. The reservation for Town Planners Association was given No. W-86 and reservation in favour of petitioner Association was given No. W-87. It is not in dispute that in development plan in the year 1976, the said plot was shown for public utility purposes and it belongs to respondent No. 1-Nagpur Improvement Trust and was being used by it as a Central Godown. In the draft development plan, prepared in 1989, the above reservations No. W-86 and No. W-87 were shown. The said plan was then forwarded to the State Government for its finalization in terms of Section 31 of the Maharashtra Regional and Town Planning Act and the State Government invited objections and suggestions, if any, as per procedure prescribed by publishing notice dated 7-1-2000. It appointed the Deputy Director of Town Planning Nagpur Division, Nagpur as an Officer under Section 31 for considering the said objections and also directed him to hear the objections in respect of suggestions and objections received by him in the stipulated period. In the said notice, it was mentioned that the proposal was to cancel the reservation in favour of the Town Planners Association and the petitioner Association and to amalgamate the said reservations together and accordingly reservation for Conventional Centre/Commercial Complex and to redesignate the site as W-86 with appropriate Authority for the purpose of development. The petitioner stated that accordingly they, in their detailed objection before the Deputy Director of Town Planning filed alleged representation dated 24-3-2001 and accordingly they were heard by the said Officer. After hearing, the Officer has prepared his report and the said report only suggested cancellation of reservation i.e. W-86 in favour of Town Planners Association in view of the fact that alternate site was already occupied by them. However, reservation in favour of the petitioner Association was maintained and the Officer recommended that the change as suggested should not be effected. Then report was placed before the State Government for consideration. The petitioner contended that the report has been mechanically considered and the proposal, as submitted by respondent No. 1, has been accepted and reservation No. W-87 in favour of the petitioner Association has been cancelled. It is contended that the Notification dated 18-9-2001 published in this respect does not show any application of mind and the report has not at all been looked into.
4. In view of the challenge made, this Court on 11-3-1992, while issuing Rule, granted Stay of communication dated 12-4-1991.
5. We have heard Mr. A.A. Naik, Advocate for the petitioner, Mr. S.K. Mishra, Advocate for respondent No. 1, Mr. Dhote, learned A.G.P. for respondent Nos. 2 and 3, Mr. Dangre, Advocate for respondent No. 4. The respondent No.-1 Nagpur Improvement Trust has filed a pursis adopting its written submissions as return in the matter. Similarly respondent No. 4 has placed an affidavit on record.
6. Advocate Naik for the petitioner has contended that the report of Deputy Director, Town Planning, Nagpur i.e. respondent No. 3, was in favour of the petitioner and if the said report was to be ignored and a decision contrary to that report was to be taken, an opportunity of hearing ought to have been given to the petitioner. The learned Counsel relied upon the provisions of Section 31 to contend that Section 31(3) does not expressly provide an opportunity of hearing but when a decision adverse to the petitioner was to be taken, such an opportunity of hearing needs to be read into such provisions. He argues that perusal of Notification dated 10-9-2001 only shows that the words like consideration, exemption or consultation are used mechanically without giving details in the said notificati pn. He further states that if a well reasoned report was to be rejected by respondent No. 2-State Government, reasons to that effect ought to have been recorded and as the reasons are not recorded, an important right otherwise available to the petitioners has been taken away. He further contended that in such a situation, the Notification dated 10-9-2001 deserves to be quashed and set aside. He further argues that, if order dated 10-9-2001 goes the earlier order dated 12-4-1991, which is also challenged in writ petition, is bound to fail. It is suggested that the State Government should be directed to hear the petitioner again, in the light of report of respondent No. 3, in the matter and take a fresh decision. It is further argued that after filing of this petition the land under reservation has been put to commercial use and respondent No. 4 has started construction of complex on it. He points out that one association by name Cine Exhibition Association challenged this commercial user in writ petition and have partly succeeded, as per judgment of Division Bench. He also points out that even in said Judgment of Division Bench, reported in 2004 (2) Mh.L.J. 252, Cine Exhibition Association, Nagpur v. State of Maharashtra and Ors., the fact of pendency of the present petition was brought to the knowledge of the Division Bench. He further argues that there is nothing in the judgment of the Division Bench which comes in the way of the present petitioner in establishing its rights in the present writ petition.
7. Mr. Mishra, Advocate appearing on behalf of respondent No.-1 contended that the provisions of Section 31 of the Maharashtra Regional and Town Planning Act, 1966 are very clear in the matter. He contends that the opportunity of hearing has been provided for whenever it is required in the scheme of Section 31 and it has not been expressly provided for any scheme under Sub-section (3) of Section 31. Therefore, no such opportunity is required to be extended while taking decision under Section 31(3). He argues that the Government has taken into consideration the report and also scrutinized it and thereafter also has consulted Director of Town Planning, Maharashtra State, Pune and, thereafter, the decision has been taken. He contends that, in view of provisions of Section 31(3) the argument that opportunity of hearing should be extended to the petitioner is without any substance. He further contends that the provisions of Section 22 of Maharashtra Regional and Town Planning Act did not contemplate any reservation in favour of the petitioner and the said section contemplates only reservations, which are general in nature and in public interest. According to him, the reservation as mentioned in favour of the petitioner under W-87 in draft development plan, itself is contrary to the provisions of Section 22 and, therefore, non est. According to him, there was no legal and existing reservation in favour of the petitioner and hence there was no report of respondent No. 2 in its favour. He states that the right of hearing being invoked, by pointing out such reservation in draft development plan in the provisions of Section 31(3) is, therefore, misconceived. It is further argued that the petition itself is based on misconceived facts and the report of Deputy Director itself is not in favour of the petitioner. It is further argued that the report accepts the position that commercial development can be undertaken on that plot. He further argues that respondent No. 3 was overwhelmed by the fact that this Court has granted interim stay in writ petition filed by the petitioner and hence, it is observed that the allotment and reservation in favour of the petitioner should be maintained. It is further contended that report itself is not correct because instead of considering legal provisions, the Deputy Director has considered existence of various public institutions in the vicinity. It is further pointed out that the stand of respondent No. 1 is that the alleged reservation in draft development plan was procured clandestinely, without taking elected Body and Chairman of the Nagpur Improvement Trust in confidence. He further submitted that a preliminary objection was accordingly filed and it was pointed out that on 2-5-1991 there was a resolution passed by the Nagpur Improvement Trust in this respect and after finding that such reservation was shown by Shri Mulak, Deputy Director, Town Planning, Nagpur clandestinely, it was resolved to call for his explanation. It was also resolved to move the State Government for deleting that reservation under Section 50 of the Maharashtra Regional and Town Planning Act and to restore earlier reservation as per 1976 plan. He contends that as such, there was no existing right in favour of the petitioner to claim any hearing under Section 31(3) of the Maharashtra Regional and Town Planning Act. He further points out that after Notification dated 10-9-2001, Final Development Plan has come into force as contemplated by Section 31(6) and it is binding on the Nagpur Improvement Trust. He has further stated that, thereafter, the work of construction of conventional centre/commercial complex has been undertaken and it was decided to build it on BOT basis. A paper advertisement was published and after calling offers, the lowest offer was accepted and a contract has also been entered into and the construction has started. The petitioner never assailed any of these developments but petition filed by one Cine Exhibition Association, Nagpur has been allowed by this Court on 3-7-2003. The said judgment is teported at 2001 (2) Mh.L.J. 252. He further contended that this decision has been challenged by the Nagpur Improvement Trust in Special Leave Petition and the Hon'ble Apex Court has granted leave to appeal in the matter. He further submits that construction of complex has progressed further and, therefore, the clock cannot be now set back. He also invites attention of this Court to the fact that after final development plan came into force, an application was moved in this Writ Petition, for vacation of interim orders and this Court has, by speaking order dated 28-3-2002, allowed that Civil Application, observing that the petitioner has failed to demonstrate any prima facie case in its favour. He further submi's that this Court also recorded that the petitioner can always apply to respondent No. 1-Nagpur Improvement Trust for allotment of any available plots according to law. According to him, this Court has also permitted construction to be carried on and the commercial development is held legally possible on that site. He further states that by resolution No. 1, reservation Nos. 86 and 87 have been amalgamated and one plot has been created and construction has been made upon it. According to them, therefore, situation has become irreversible. He further argues that in this situation, the petitioner is not being put to any irreparable loss in the matter as it is entitled to apply for any other available plot to respondent No. 1. According to him in any circumstances, no relief can be given to the petitioner in the present matter.
8. Mr. Dhote, the learned A.G.P. for respondent Nos. 2 and 3 adopted the arguments advanced by Mr. Mishra, Advocate and contends that Section 31(3), does not provide for any opportunity of hearing in the matter. He states that respondent No. 2 has considered the report received by it and after examination of that report, after consulting Director of Town Planning, Maharashtra State, Pune, the decision has been taken. According to him, there is nothing wrong in the matter and decision taken is perfectly legal and does not warrant any interference.
9. Mr. Dangre, Advocate for respondent No. 4 states that respondent No. 4 has come into picture only after offer of Rs. 16.10 Crores submitted by it was accepted by respondent No. 1. On 27-10-2002 there was concluded contract with the Nagpur Improvement Trust and construction has been permitted by this Court. He states that construction has progressed much further and an amount of more than Rs. 20,00,00,000/- (Rs. Twenty Crores Only) has already invested by respondent No. 4. He further adopted the arguments advanced by Mr. S.K. Mishra, Advocate that the petitioner cannot claim any interest or right to have the said plot allotted to it. He further argues that there is no legal right in favour of the petitioner and only desire of the petitioner is not sufficient.
10. The question which requires consideration is; whether under Section 22 of Maharashtra Regional and Town Planning Act, 1966 can there be any allotment in favour of the petitioner? The petitioner, admittedly is a private Society. On perusal of provisions of Section 22 of Maharashtra Regional and Town Planning Act, 1966, it is apparent that the development plan shall generally indicate the manner in which the lands covered under it shall be used or its user shall be regulated. Said Section 22 reads as under:
22. Contents of Development Plan.--A Development plan shall generally indicate the manner in which the use of land in the area of a Planning Authority shall be regulated and also indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say,
(a) proposal for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational;
(b) proposals for designation of land for public purposes, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, or public assembly, museums, art galleries, religious building and government and other public buildings as may from time to time be approved by the State Government;
(c) Proposal for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies;
(d) transport and communications, such as roads, high-ways, parkways, railways, waterways, canals and air ports, including their extension and development;
(e) water supply, drainage, sewerage, sewage disposal, other public utilities amenities and services including electricity and gas;
(f) reservation of land for community facilities and services;
(g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale;
(h) preservation, conservation and development of areas of natural scenery and landscape;
(i) preservation of features, structures or places of historical, natural architectural and scientific interest and educational value (and of heritage buildings and heritage precincts);
(j) proposals for flood control and prevention of river pollution;
(k) proposals of the Central Government, a State Government Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to requisition for public purpose or as specified in a Development plan, having regard to the provisions of Section 14 or for development or for securing use of the land in the manner provided by or under this Act;
(l) the filing up or reclamation of law lying, swampy or unhealthy areas, or levelling up of land;
(m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority including imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the location, number site, height, number of storeys and character of buildings and density of population allowed in a specified area, the use and purposes to which buildings or specified areas of land may or may not be appropriated, the sub-division of plots the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the sizes of projections and advertisement signs and boardings and other matters as may be considered necessary for carrying out the objects of this Act.
Clause (b) of Section 22 alone can be looked into to find out validity of allotment in favour of the present petitioner. The said clause takes into account the designation of the land for public purposes, such as Schools, Colleges and other Educational Institutions, medical public institutions etc. The clause does not permit reservation or designation on any particular site in favour of any particular individual or in favour of a particular Institution or Society. The clause only permit the earmarking of that site for a particular purpose. It is, therefore, apparent from scheme of provisions of Section 22 that, the reservation in favour of an individual or institution like petitioner, is not contemplated therein. Mr. Mishra, Advocate has argued that respondent No. 1 has to act under the Land Disposal Rules in the matter and even though the land is reserved for a particular purpose, the said land has to be allotted only in accordance with the provisions of said Rules. Respondent No. 1 is statutory authority and cannot confer any largess. If public land is to be allotted it has to be through open competitive process and in accordance with Land Disposal Rules. It is clear that such reservation in favour of any individual or any institution if upheld, it will amount to giving go bye to the said Land Disposal Rules. However, we find that it is not possible to uphold the earmarking of any particular land in favour of an individual or an institution or society like petitioner under the Scheme under Clause 22 of the Maharashtra Regional and Town Planning Act, 1966. It is also clear that if the land is earmarked for any particular purposes, the land will have to be disposed of in accordance with the provisions of Land Disposal Rules.
11. It is therefore clear that the land, on which the alleged reservation was provided, belong to Nagpur Improvement Trust and it still belongs to Nagpur Improvement Trust. The question there is; whether submission of report by respondent No. 3, which apparently is in favour of the petitioner, in any way necessitate grant of hearing while finalizing draft development plan under Section 31(3). The report of respondent No. 3 does not take into consideration the fact that there cannot be any reservation in favour of the petitioner Association or Town Planners Association. The report proceeds on the assumption that the reservation No. W-87 in favour of the petitioner is proper. However, perusal of report also reveals that it has been held that commercial activity is possible on the said plot. The report, thereafter, considers that various education and similar public institutions are located on North Ambazari road, on which the said plot is located and, therefore, if commercial purpose is permitted on that plot, it would constitute change of user in the area. The Deputy Director has not and could not have expressed that any provision of the Maharashtra Regional and Town Planning Act prohibited commercial exploitation of plot. This situation and position has been taken into account by the State Government while passing the orders on 10-9-2001, The orders passed by the State Government expressly mention that they have considered suggestions, objections and report of respondent No. 3. It has also been mentioned that the report has been examined and after consulting the Director of Town Planning, Maharashtra State, Pune sanction has been accorded. In these circumstances, it is apparent that finding in the report, in favour of the petitioner, is of no legal consequence and also reservation in draft development plan was of no consequence in the eyes of law. In view of this finding, we find it not necessary to pronounce upon the stand of respondents that petitioner clandestinely and because of its influence succeeded in getting the reservation W-87 mentioned in its favour in draft development plan.
12. The scheme of Section 31 also shows that if the State Government finds the modifications proposed in the draft development plan are of substantial nature, it has to publish a notice in the Official Gazettee and also in local newspapers inviting objections, suggestions and it has to appoint an Officer not below the rank of Class-I and to direct him to hear any such person in respect of such objections and suggestions. Then the said Officer has to submit his report to the State Government. Thus opportunity of hearing is expressly provided in Sub-section (2) of Section 31 before an Officer appointed by the State Government, who has been entrusted with the job of considering objections and suggestions received and, who has to submit report to the State Government. The State Government has, thereafter, only to consider the objections and suggestions received and the report of the Officer. The second opportunity of hearing before the State Government has not been contemplated. It has to be noted that if such second opportunity is read into Sub-section (3) of Section 31, opportunity of hearing granted before the Officer may itself be rendered redundant. The Maharashtra Regional and Town Planning Act, 1966 is a welfare measure and finalization of development plan and town planning are the factors in interest of environment and general public. No vested rights are being taken away just by finalizing the development plan. Therefore, the contention of the petitioner that because report of respondent No. 3 was being ignored by respondent No. 2, the opportunity of hearing should have been given and should be read into accordingly in the light of provisions of Section 31(3) cannot be accepted.
13. It is to be noted that the petitioner has not pointed out any mala fide in the matter and the Notification dated 10-9-2001 has not been challenged on any such ground.
14. The perusal of judgment reported at 2004 (2) Mh.L.J. 252 (supra) shows that the decision of Nagpur Improvement Trust to put such plot to commercial use and construct a Multiplex thereon has been gone into by the Division Bench of this Court. It has been held that commercial user of said plot is possible. In such circumstances, we find nothing wrong with the impugned orders. The activity of construction of commercial complex, as argued, has already begun. Therefore, situation, insofar as the present writ petition is concerned, has become irreversible. We think that the petitioner, who had no legal right in the matter, cannot at this stage seek to reverse the entire situation only on the basis of alleged reservation of said plot in its favour in draft development plan.
Under these circumstances, we find no merits in the petition. The petition is accordingly dismissed with no orders as to costs.