Dr. Dina Sohrab Hakim And Dr. ... vs The State Of Maharashtra Having ...
2002 Latest Caselaw 348 Bom

JUDGMENT

R.M. Lodha, J.

1. Heard Mrs.M.V.Shetty, learned Counsel for Petitioners and Ms.Savla, learned Counsel for Respondent No.2 viz. Municipal Corporation of Gr.Bombay.

2.At the outset, we are constrained to observe that the first Respondent viz. State of Maharashtra has not chosen to file any counter or return in opposition to the Writ Petition. Shockingly, nobody has appeared for State Government to argue the matter on their behalf. In the circumstances, we heard the learned Counsel for Petitioners and learned Counsel for second Respondent.

3.The Petitionerslaimed to be owners of a plot of land admeasuring 3646.23 sq.mtrs. known as Hakimwadi situate at the junction of Falkland Road and Eruchshaw Road, bearing Cadastral Survey No.176, Tardeo Division, Bombay, particulars whereof are given in Exhibit-A. The said property was reserved for a Municipal Recreation ground in the "D" Ward Development Plan sanctioned by the State Government under Government Notification, Urban Development, Public Health and Housing Department No. TPB-4366/78109 dated 6-1-67. According to Petitioners, the proceedings for acquisition of the said property were not commenced for more than 10 years. The Petitioners then served a notice dated 1st July, 1977 under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 ( for short "the MRTP Act") so that Planning Authority could either acquire the said property or release the same from reservation. It appears that correspondence ensued between the Petitioners and the authorities of the Municipal Corporation of Greater Bombay (Planning Authority) thereafter and ultimately on 7th April, 1978 the first Respondent in exercise of the powers conferred by sub-section (4) read with sub-section (2) of Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894 declared that the property in question is needed for public purpose of recreation ground. The declaration under Section 6 was published in the Government Gazette on 20th April, 1978. It is averred by the Petitioners in the Writ Petition that though the Petitioners submitted their statement of claim dated 11th April, 1979, no Award was passed and the Land Acquisition Officer informed the Petitioners vide letter dated 19th July, 1980 that the acquisition proceedings for the land in question were to be kept in abeyance. The Petitioners claim to have filed a Writ Petition being Writ Petition No. 1420 of 1980 in this Court for a direction to the concerned authorities to publish the Award and pay compensation to the Petitioners. This Court by order dated 28-1-1981 directed the Land Acquisition Officer to declare the Award and determine the compensation in respect of the property in question within six months therefrom. Thereafter it appears that several tenants of the property in question formed an Association styled Dr.Hakimwadi Tenants Association and got it registered under the Societies Registration Act and filed Writ Petition No.799 of 1981 for quashing the proceedings for acquisition commenced by the Planning Authority and the consequent notification issued by first Respondent on the ground that reservation of the land had lapsed. The learned single Judge of this Court by an order dated 21st September, 1983 quashed and set aside the Notification issued by first Respondent under Section 6 of the Land Acquisition Act and all steps subsequent to the issuance of the said Notification . The learned single Judge also declared that the Planning Authority and the State Government are not entitled to acquire the property in question in exercise of the powers under Section 126 of the MRTP Act. A letters Patent Appeal was filed by Respondent No.2 before a Division Bench of this Court but without success. The second Respondent also challenged the order of the learned single Judge and that of Division Bench before the Apex Court in Civil Appeal No. 4139 of 1986. The said Appeal was dismissed by the Apex Court on 24-11-1987. It appears that during the interregnum, Bombay Municipal Corporation ( second Respondent) finalised the Draft Revised Development Plan of "D" Ward but in view of the judgment of the Apex Court, the reservation of property in question was deleted and Draft Revised Development Plan of "D" Ward was forwarded to the State Government. The State Government upon receipt of the Draft Revised Development Plan of "D" Ward, made modification thereon so far as property in question is concerned and reserved the property in question for public purpose of recreation ground. It is this modification made by the State Government in Draft Revised Development Plan of "D" Ward under Section 31(1) of the MRTP Act which is under challenge before us in this Writ Petition.

4.Principally the challenge to the said modification of the Draft Revised Development Plan of "D"Ward is on the ground that no notice as required under second proviso to Section 31 (1) of the MRTP Act was published by the first Respondent inviting objections and suggestions to the said Reservation and,therefore, such modification is bad-in-law.

5. As we have already noted above, the facts stated in the Writ Petition have not been traversed. Neither the first Respondent nor the second Respondent has chosen to file any counter or return to oppose the Writ Petition. It is thus clear that in the Draft Revised Development Plan of "D" Ward forwarded by the Planning Authority i.e. Respondent No.2 to the State Government ( Respondent No.1) the property in question was not reserved for any public purpose. The State Government, however, appears to have not agreed with the view of the Planning Authority and modified the Draft Revised Development Plan of "D" Ward by reserving the property in question for recreation ground. The question that arises for reconsideration is whether such modification in the Draft Revised Development Plan of "D" Ward made by the State Government is in accordance with law.

6. We have already made reference to the Writ Petition filed by the tenants of the property in question in the name of Dr.Hakimwadi Tenants Association for quashing the proceedings for acquisition of the property in question commenced by the Planning Authority and the consequent notification issued by the first Respondent. The matter ultimately went to the Supreme Court and the Judgment of the Apex Court is . In paragraph 7 of the report, the Apex Court ruled thus:-

"7. According to the plain reading of S.127 of the Act, it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by S.127, is a mixed question of fact and law. It would therefore be difficult, if not well-high impossible, to lay down a rule of universal application. It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under S.127 of the Act. The condition prerequisite for the running of time under S.127 of the service of a valid purchase notice. It is needless to stress that the Corporation must prima facie be satisfied that the notice served was by the owner of the affected land or any person interested in the land. But, at the same time, S.127 of the Act does not contemplate an investigation into title by the officers of the Planning Authority, nor can the Officers prevent the running of time if there is a valid notice. Viewed in that perspective, the High Court rightly held that the Executive Engineer of the Municipal Corporation was not justified in addressing the letter Dt.July 28, 1977 by which he required Respondents 4-7, the trustees, to furnish information regarding their title and ownership, and also to furnish particulars of the tenants , the nature and user of the tenements and the total areas occupied by them at present. The Corporation had the requisite information in their records. The High Court was therefore right in reaching the conclusion that it did. In the present case, the Planning Authority was the Municipal Corporation of Greater Bombay. It cannot be doubted that the Municipal Corporation has access to all land records including the records

of Tardeo. We are inclined to the view that the aforesaid letter dt. July 28, 1977 addressed by the Executive Engineer was just an attempt to prevent the running of time and was of little or no consequence. As was rightly pointed out by respondents 4-7 in their reply dt.Aug.3, 1977, there was no question of the period of six months being reckoned from the date of the receipt from them of the information requisitioned. The Municipal Corporation had been assessing the trust properties to property tax and issuing periodic bills and receipts therefor and obviously could not question the title or ownership of the trust.We are informed that the building being situate on Falkland Road, the occupants are mostly dancing girls and this is in the knowledge of the Corporation authorities. The rateable value of each tenement would also be known by an inspection of the assessment registers. We must accordingly uphold the finding arrived at by the High Court that the appellant having failed to take any steps, namely, of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the date of service of the purchase notice, the impugned notification issued by the State Government under S.6 Land Acquisition Act, making the requisite declaration that such land was required for a public purpose i.e. for a recreation ground was invalid, null and void."

Then in paragraph 10 the Apex Court ruled thus: " 10. Another safeguard provided is the one under S.127 of the Act. It cannot be laid down as an abstract proposition that the period of six months would always begin to run from the date of service of notice. The Corporation is entitled to be satisfied that the purchase notice under S.127 of the Act has been served by the owner or any person interested in the land. If there is no such notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development plan of having lapsed. It a fortiorari follows that in the absence of a valid notice under S.127, there is no question of the land becoming available to the owner for the purpose of development or otherwise. In the present case, these considerations do not arise. We must hold in agreement with the High Court that the purchase notice dt.July 1, 1977 served by Respondents 4-7 was a valid notice and therefore the failure of the appellant to take any steps for the acquisition of the land within the period of six months therefrom, the reservation of the land in the Development Plan for a recreation ground lapsed and consequently the impugned notification dated April 7, 1978 under S.6, Land Acquisition Act, issued by the State Government must be struck down as a nullity.

7. Ultimately overruling all the grounds set up by the Appellant therein viz. Municipal Corporation of Greater Bombay, the Apex Court maintained the order passed by the learned single Judge and affirmed in Letters Patent Appeal by the Division Bench. The effect of the judgment of the Apex Court was that the reservation of property in question for recreation ground in Development Plan had lapsed. This related to the Development Plan of the year 1967. In the interregnum before the matter was decided by the Apex Court, Respondent No.2 finalized the Draft Revised Development Plan of "D" Ward. However, after the judgment of the Apex Court, the Planning Authority i.e. Respondent No.2 deleted the reservation of property in question for recreation ground and forwarded the Draft Revised Development Plan to the State Government under Section 30 of the MRTP Act. Section 31 of the MRTP Act provides the procedure for sanction to Draft Development Plan which reads thus:

" 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 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 modification as it may consider proper or return the draft development plan to the Planning Authority or as the case may be, the sa id Officer for modifying the plans as it may direct or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development Plan.

Provided that, the State Government ay, 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 refusing to accord sanction thereto, by such further period 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 inviting objection and suggestions from any person in respect of the proposed modifications within a period of sixty days, from the date of such notice.

(2)The State Government may appoint an officer of rank not below that of a Class-I Officer and direct him to hear any such person in respect of such objection and suggestions and submit his report thereon to the State Government.

(3) The State Government shall before according sanction to the draft Development Plan take into consideration such objections and suggestions and the report of the officer.

(4)The State Government shall fix in the notification under sub-section (1) a date not earlier than one month from its publication on which the final Development plan shall come into operation.

(f)If a Development Plan contains any proposal for the designation of any land for a purpose specified in clauses (b) and (c) of Section 22, and if such land does not vest in the Planning Authority, the State Government shall not include that in the Development Plan, unless it is satisfied that the Planning Authority will be able to acquire such land by private agreement or compulsory acquisition not later than ten years from the date on which the Development plan comes into operation.

(6)A Development plan which has come into operation shall be called the "final Development Plan" and shall, subject to the provisions of this Act, be binding on the Planning Authority."

8. We are mainly concerned with compliance of second proviso to sub-section (1) of Section 31 of the MRTP Act inasmuch as the question posed by Petitioners before us is that since the Planning Authority in the Draft Revised Development Plan submitted to the State Government had not reserved the property in question for recreation ground, whether the State Government upon modification of the Draft Revised Development Plan submitted by the Planning Authority which was of a substantial nature was required to publish notice in the Official Gazette and local newspapers inviting objections and suggestions.

9. We have no hesitation in holding that the State Government by reserving the property in question for recreation ground which was not proposed by Planning Authority has definitely made modification in the Draft Revised Development Plan of a substantial nature. As a matter of fact, Ms.Savla, learned Counsel appearing for Respondent No.2 could not seriously refute this position. If the State Government proposed to make modifications in the Draft Revised Development Plan of "D" Ward submitted by the Planning Authority and when the said modification was of a substantial nature, it was incumbent upon the State Government to public a notice in the Official Gazette and also in local newspapers inviting objections and suggestions from any person in respect of proposed modification within a period of 60 days from the date of such notice and having not done that, the procedure prescribed in second proviso to sub-section (1) of Section 31, which is mandatory in character, has not been adhered to and that vitiates the modification made by the State Government in the Draft Revised Development Plan of "D" Ward whereby the property in question has been reserved for recreation ground.

10. We, accordingly, allow the Writ Petition in terms of prayer clause (a). Prayer clause (a) reads thus:-

"(a) That this Honble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other writ, order or direction under Article 226 of the Constitution of India to call for the records from the Respondents and after examining the same and going into the legality and propriety of the impugned reservation of the land bearing C.S.No.176 of Tardeo Division known as Hakimwadi Chawl, situate at the junction of Falkland Land Road and Eruchshaw Road in the Development Plan, off "D" Ward sanctioned by the 1st Respondents under a Govt. Resolution No.TPB-4390/1902 UD (RDP) dated 6th July, 1991 caused the said reservation;"

No costs.

Certified copy expedited.