Keshavraj Lalchand Sakraney And ... vs Special Land Acquisition Officer ...
2003 Latest Caselaw 239 Bom

JUDGMENT

A.P. Shah, J.

1. This petition under Article 226 is for the issue of an appropriate writ, order or direction directing the State Government to make order sanctioning deletion of reservation for recreation ground on the petitioners' plot of land. The petitioners also seek the issue of an appropriate writ, order or direction for quashing the letter dated 31-10-2002 issued by the State Government to Municipal Commissioner of Gr. Mumbai and for directing the State Government to withdraw from acquisition proceedings in respect of the said land.

2. The petitioners are owners of land bearing CS No. 65 of Dadar Naigaon Division, admeasuring 3718 square metres, hereinafter called the said land. The Mumbai Municipal Corporation, prepared Development Plan for City of Bombay, which was sanctioned in respect of "F" Ward vide Resolution No. TPE 4366/641 dated 7-1-1967, hereinafter called as 1967 Development Plan. The land of the petitioners was reserved in 1967 Development Plan for public purpose of recreation ground. In the revision Development Plan which came into force on 30-1-1992 this reservation has been maintained. The revised Development Plan has been finalized by following the procedure prescribed in Sections 26 to 30 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as 'the Act'. It appears that in 1978 proceedings were initiated to acquire the said land as per request made by the Corporation and pursuant to its Resolution No. 1287 dated 16-1-1978. The said Resolution was passed in view of the notice issued by the owners under Section 127 of the Act. For the purpose of acquisition the said land was notified by the Special Land Acquisition Officer by issuing notification under Section 6 of the Land Acquisition Act, 1894 on 7-4-1978. However, the acquisition proceedings were not proceeded with and lapsed by virtue of the amended provisions of the Land Acquisition Act. Thereafter the petitioners filed Writ Petition No. 2397 of 1987 seeking direction to the respondents to grant development permission or to direct the Corporation to deposit the amount specified by the SLAO. In the meantime since earlier acquisition proceedings had lapsed, Corporation made fresh application to the State Government for acquisition of land of the petitioners reserved for recreation

ground in the revised final Development Plan. Pursuant to the said request, land was again notified by the State Government for acquisition on 17-2-1994. Writ Petition No. 2397 of 1987 was disposed of by the Division Bench on 14-7-1994 holding that since the award was not made within the specified period as required under Section 11A of the Land Acquisition Act, acquisition proceedings had lapsed and consequently reservation of the plot under the Development Plan dated 7-1-1967 also stood lapsed. The petitioners again approached this Court by way of Writ Petition No. 330 of 1998 contending inter alia that once reservation had lapsed it is not open for the State Government to reintroduce the reservation while sanctioning the revised Development Plan. The division bench did not accept this contention and by order dated 12-8-1998 directed the State Government to start acquisition proceedings within six months from the date of the order and pass award within six months thereafter and further directed that if acquisition proceedings are not started within the time specified then the reservation shall stand deleted as contemplated by Section 127 of the Act.

3. Pursuant to the order dated 12-8-1998 SLAO proceeded with the acquisition and prepared the draft award. It appears that in preparing the draft award some time had lapsed which resulted in the authorities not being able to comply with the time stipulation" prescribed by this court in its order dated 12-8-1998. Therefore a Notice of Motion was moved by the State Government for extension of time for declaration of the award. The said Notice of Motion came to be dismissed by this court on 30-8-1999. The said order was challenged by the Corporation in Special Leave Petition No. 17993 of 1999 before the Supreme Court. In the SLP Corporation sought extension of time granted by this court for declaration of the award. It appears that contemporaneously this issue was also placed before the Improvement Committee of the Corporation to take decision whether to continue with the SLP filed for extension of time to declare the award and complete the acquisition or to allow the reservation to lapse as per the order passed by this court. The Improvement Committee resolved to recommend that SLP be pursued further and that the land be acquired by declaration of award. The Corporation endorsed the view of the Improvement Committee vide Resolution dated 7-2-2000. The Urban Development Department was informed by the Corporation that it will pay compensation as and when the award is declared. The above SLP No. 17993 of 1999 was finally heard on 14-2-2000 and the Supreme Court granted extension of time of three months for declaration of the award especially in view of the fact the said land was reserved for the public purpose of recreation ground in the Development Plan and that the Corporation had agreed to acquire the said land and undertaken to pay the compensation as per the award. The Supreme Court also ordered that the compensation shall be deposited by the Corporation within one month from the declaration of the award. Subsequently SLAO declared the award on 12-5-2000 within the time stipulated by the Supreme Court. The compensation amount under the award was Rs. 2.56 crores. The said amount was duly deposited by the Corporation with the SLAO within one month as directed by the Supreme Court.

4. By passing Resolution Nos. 280 and 281 dated 18-7-2000 the Corporation took a decision to reconsider its earlier Resolution dated 7-2-2000

for acquiring the aforesaid land for the public purpose of recreation ground. The Improvement Committee by its Resolution No. 67 dated 11-8-2000 recommended to the Corporation to sanction the proposal as below :

 i)       Not to take possession of the land and withdraw the aforesaid land
from acquisition.  
 

              ii)      Withdraw any amount of compensation if deposited, based on the
Award declared by SLAO without delay.  
 

 The Corporation by its Resolution No. 492 dated 18-9-2000 accorded approval to the recommendation of the Improvement Committee to withdraw the land from acquisition and to withdraw the money deposited with the SLAO. The State Government, however, by its letter dated 30-10-2002 communicated to the Corporation that request of the Corporation for withdrawal of the said land from acquisition could not be accepted. 
 

5. On behalf of the State Government counter affidavit has been filed by Shri Ramanand Tiwari, Principal Secretary, Urban Development Department, supporting the Government's decision not to withdraw from the acquisition. It is inter alia contended that the State Government has considered the request of the Corporation and has come to conclusion that the reasons for withdrawal by the Corporation would be contrary to and in conflict with the planning proposals as contained in the Development Plan. The reservations are kept in the Development Plan considering the need of a particular area for such reservation. The Corporation has not given cogent reasons as to why the said land is now not required fore the purposes for which it is earmarked in the Development Plan, particularly in view of the fact that the acquisition proceedings were pursued vigorously till the declaration of the award and deposit of the compensation. If such a request is to be accepted it will amount to the whole planning process being jeopardized and also there would be a lopsided development of the area in question. It would also deprive the citizens of the facility of recreation ground and would therefore be against public interest. It is pointed out that the encumbrances on the land in question are there right from the beginning when the acquisition proceedings were initiated in the year 1978 and started afresh again in the year 1994 and, therefore, the Corporation cannot be heard to say that it has taken a decision to withdraw from acquisition only on the ground that there are encumbrances on the land in question. It is also contended that this sudden volte face on the part of the Corporation does not appear to be justified and bona fide. If the decision of the Corporation is allowed to prevail it will amount to making mockery of the judicial proceedings and the orders passed therein. It is contended that it would be travesty of justice if the planning process, which is finalised after taking into consideration all the relevant material, is allowed to be done away with in the manner as is sought to be done in the present case. It is contended that the land should be utilised for the purposes for which it is earmarked in the Development Plan and more so when the acquisition proceedings are complete.

6. Mr. Singhvi, learned counsel for the petitioner strenuously contended that the land was reserved for recreation ground under 1967 Development Plan and the purchase notice was also issued under Section 127 after expiry of the

period of 10 years and since the respondents failed to acquire the land within the stipulated period, reservation stood lapsed. According to Mr. Singhvi mere issuance of the revised Development Plan under Section 22 of the Act shall not take away the right already accrued and vested with the land owner on expiry of 10. years from the existing Development Plan and failure on the part of the authority to acquire the land within six months period. In support of this contention Mr. Singhvi placed reliance on the decision of the Supreme Court in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. and Ors., . Secondly, Mr. Singhvi contended that the planning authority has passed a resolution not to acquire the land and allowed the reservation to lapse. The State Government has no power to override the decision of planning authority and to proceed with the acquisition proceedings as Section 50 of the Act requires the State Government to delete such reservation from the development plan. Lastly, Mr. Singhvi urged that the decision of the State Government not to permit the Corporation from withdrawing from acquisition is totally arbitrary and discriminatory. The learned counsel submitted that in a similar case the State Government has allowed the Corporation to withdraw from the acquisition in respect of the plot of land which was reserved for Municipal Market and this shows that discriminatory treatment was meted out to the petitioners.

7. At the outset we may mention that the submission of Mr. Singhvi that the reservation has lapsed is not specifically taken in the petition. In the present petition the cause of action is not based on the lapsing of the reservation. However, it seems that Mr. Sanghvi has raised this submission in the light of the recent judgment of the Supreme Court in Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors. (supra). In our opinion this plea of lapsing of reservation is not available to the petitioners as the same is clearly barred by the principles of res-judicata. The petitioners had earlier filed Writ Petition No. 2397 of 1987 and contended that reservation of the plot in 1967 Development Plan has lapsed under Section 127 of the Act. This contention was accepted by the division bench vide order dated 14-7-1995. Thereafter, the petitioners filed Contempt Petition No. 16 of 1997 alleging that once the reservation has lapsed it is not open to the State Government to reintroduce reservation while sanctioning revised development plan. That petition was opposed by the Corporation. The petitioners withdrew the contempt petition with liberty to file a substantive petition. Thereafter the petitioners filed Writ Petition No. 330 of 1998 and urged the same contention. This court did not accept the said contention. Instead this court permitted the State Government to start acquisition within six months from the date of the order and pass award within six months and further directed that if acquisition proceedings are not started within the time specified then the reservation shall stand deleted as provided by Section 127 of the Act. The time to make the award was extended by the Supreme Court by further 3 months from 14-2-2000. In view of the above facts the plea of lapsing of reservation is clearly not available to the petitioners.

8. Under the scheme of the MRTP Act, once a plot of land is reserved in a finally sanctioned development plan for any of the purposes contemplated by provisions of Section 22 and other provisions of the said Act, continues to remain

subject to such reservation until any of the following events occur Viz. reservation lapses either under Section 49 or Section 127 of the said Act, plan is modified under Section 37 of the said Act and reservation is removed or reservation is deleted under Section 50 of the Act. Section 50 provides for deletion of reservation of designated land from the interim, draft or final development plan in certain cases in case the land is no longer required by the appropriate authority for the public purpose for which it is designated or reserved or allocated. Section 50 reads thus :

"50(1) The Appropriate Authority (other than the planning authority) if it is satisfied that the land is not or no longer required for the public purpose for which it is designated or reserved or allocated in the interim or the draft development plan or plan for the area of comprehensive development or the final development plan, may request-

 a)      the planning authority to sanction the deletion of such designation or reservation or allocation from the interim or the draft development plan or plan for the area of comprehensive development or; 
 

 b)      the State Government to sanction the deletion of such designation or reservation or allocation from the final development plan    
 

 2) On receipt of such request from the Appropriate Authority, the planning authority or as the case may be the State Government may make an order sanctioning the deletion of such designation or reservation or allocation from the relevant plan; 
 

 Provided that, the planning authority, or as the case may be, the State Government may, before making any order, make such enquiry as it may consider necessary and satisfy itself that such reservation or designation or allocation is no longer necessary in the public interest. 
 

 3) Upon an order under Sub-section (2) being made, the land shall be deemed to be released from such designation, reservation or as the case may be allocation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land, under the relevant plan".  
 

9. A plain reading of Section 50 makes it clear that the land cannot be deleted unless the competent authority on whose behalf the land is reserved for public purpose is satisfied that the land reserved for public purpose is no longer required for such public purpose and such appropriate authority must be authority other than the planning authority. In the present case Section 50 is not attracted as the planning authority itself is the appropriate authority. Section 50(1) specifically excludes planning authority from the scope of the section. The State Government can pass an order under Section 50 only if it is satisfied that the reservation is no longer required in public interest. In the instant case the State Government is not so satisfied that the reservation is not necessary in public interest. Therefore provisions of Section 50 are clearly inapplicable to the present case. Therefore there is no question of lapsing of reservation. The submission of Mr. Singhvi that reservation has lapsed must be rejected.

10. Mr. Singhvi's next contention is that the State Government has no power or discretion to revise or modify the decision of the planning authority. This contention is devoid of any merit. The scheme of the Act clearly shows that the powers of the State Government as compared to those of any planning authority are very wide. The State Government plays a decisive and dominant role in implementation of the provisions of the Act. Section 22(1)(2) requires the planning authority to carry out survey, prepare on existing land use map and prepare a draft development plan and submit the same to the State Government for sanction. The planning authority has to submit a quarterly report to the State Government about progress made in carrying out the aforesaid tasks. The aforesaid tasks are to be performed within three years of the said Act coming into force or within three years of the constitution of the planning authority as the case may be. Section 21(3) lays down that if the draft plan is not prepared within the stipulated time, then the planning authority has to apply to the State Government for extension of time and on receipt of such application the Government can extend time. Section 21(4) lays down that if the planning authority does not submit the development plan to State Government within the stipulated period then the State Government can appoint Officer to prepare the development plan and submit the same to the Government. Section 24 requires every planning authority to appoint town planning officer having prescribed qualification. The appointment of such town planning officer is subject to the previous sanction of the Government. Section 26(1) mandates the planning authority to prepare a draft plan and to publish the same. This has to be done not later than 2 years from the publication of notice under Section 23 i.e. notice of intention to prepare the development plan. Section 30 lays down that the planning authority has to submit the draft development plan to the State Government for sanction within a period of 12 months from the date of publication of the notice in the Official Gazette under Section 26(1). Section 31 empowers the State Government to sanction the draft development plan submitted to it by planning authority without modification or subject to such modifications as it may consider proper. The State Government can also return the draft development plan to the planning authority and refuse to accord sanction and direct the planning authority to prepare a fresh draft development plan. The objections raised to the draft development plan are considered by the Class I officer appointed by the Government. Section 37 of the Act deals with the modification of the finally sanctioned plans. The planning authority can only make a proposal for modification and invite objections and suggestions. The Government after considering the objections and suggestions in respect thereof has to consider the question whether to sanction the modification or not. The Government can even refuse to sanction modification. Under Section 37(A) the Government can also permit the change of user of a particular plot of land. Under Section 47 of the said Act the Government has appellate powers over the planning authority's refusal to grant development permission or granting the same subject to certain conditions. Section 154 of the said Act confers upon the State Government powers to issue directions for implementation of the Act. It is open for the State Government to issue direction to the Corporation under

Section 154 to acquire the plot and develop the same as recreation garden. If the planning authority fails to acquire the land and fails to develop the same as recreation ground the State Government may take recourse to Section 162 of the Act to acquire the land and develop the same as recreation ground and recover the expenses incurred therefor from the planning authority. Thus the scheme of the Act clearly envisages supervisory role of the State Government in preparation and implementation of the Development Plan. Therefore, the argument of Mr. Singhvi that the State Government is bound to act as per the advise of the planning authority is liable to be rejected.

11. Now the only question that remains to be considered is whether the State Government was right in rejecting the request of the Corporation to withdraw from the acquisition. In the instant case the plot in question is reserved for recreation ground in the revised Development Plan sanctioned on 19-12-1991. The Corporation initially on 7-2-2000 decided to go ahead with the acquisition though the said plot was encumbered. All the factors which weighed with the Corporation at the time of resolution of 11-8-2000 and 18-9-2000 were present when the earlier resolution was passed on 7-2-2000. There is no change in the circumstances. The reservation is for recreation ground which is the need of the public residing in the area and if such reservation is allowed to be deleted whole planning process will be affected causing serious hardship to the people residing in the area. It is well known that there is dearth of open spaces in the city of Mumbai. In these circumstances the decision of the State Government not to withdraw from the acquisition cannot be said to be arbitrary or mala fide. The ground of discrimination is also without any merit and is not borne out by the record. In their counter affidavit the respondents have explained how the land reserved for municipal market was required to be deleted from the reservation. We are satisfied that the State Government has acted bona fide and in the interest of public. No interference is therefore called for under Article 226 of the Constitution.

Petition is dismissed.