K L GUPTE PADAMAKAR BALKRISHNA SAMANT INDIA FARMERS PRIVATE LIMITED BOMBAY LAXMISINGH UDITSINGH Vs. MUNICIPAL CORPORATION OF GREATER BOMBAY

JUDGEMENT

(1.) This is a group of four writ petitions filed under Article 32 of the Constitution. The common attack in all these petitions is against the validity of certain Sections of the Bombay Town Planning Act, 1954, hereinafter referred to as the Act.

(2.) The petitioners are all owners of plots of land in areas round about Bombay, commonly known as Greater Bombay. They have all similar but separate grievances with respect to the development plan prepared and published under the Act. In Writ Petition No. 215 of 1966, the petitioner's complaint is as regards his land being earmarked for the public purpose of a park in the Development Plan prepared under the Act. He seeks to prevent the respondents from giving effect to the said designation of lands in Development Plan and in particular, to have the third respondents order i. e. the Executive Engineer (Planning) (of the Municipal Corporation of Bombay) dated 11th August, 1964 to the effect that his lands were needed for the public purpose of a park quashed. In Writ Petition No. 228 of 1966 the prayer is that the designation of the petitioner's land as being earmarked for recreation centre and for green belt in the development plan of 'P' Ward of the City of Greater Bombay should be removed, that their lands should be redesignated as earmarked for industrial purpose, that the order of the Assistant Engineer, Bombay Municipal Corporation, rejecting, the petitioners' proposal for construction of two factory buildings and lavatory blocks should be quashed and a declaration be made that Ss. 9, 10, 11, 12 and 13 of the Bombay Town Planning Act are ultra vires the Constitution of India. In Writ Petition No. 251 of 1966 the prayers include an order for quashing Resolution No. 1173 of December 19, 1963 and Resolution No. 343 of July 2, 1964 of the first respondent and for removal of the designation attached to the petitioners' land as reserved for Government purposes in the Development Plan of 'P' Ward of Greater Bombay. In Writ Petition No. 256 of 1966 the prayers are inter alia for the issue of writs declaring that the Development Plan submitted by the first respondent to the fourth respondent (including P Ward) on July 8, 1964 infringes the petitioners' rights and directing the issue of a commencement certificate for the development and utilisation of the said land in the manner proposed. At the hearing, a further prayer was made for urging an additional ground in all the writ petitions challenging the validity of S. 17 of the Act.

(3.) We may consider the broad facts in Writ Petition No. 228 of 1966 by way of sample. The petitioners in this case are two persons who claim to be owners of land bearing S. No. 70, Hissa Nos. 4, 5 and 6 comprising an aggregate area of 31,641 sq. yds. approximately in village Pahadi at Goregaon in Greater Bombay. Their case is that they had applied through their architect on January 2, 1962 for permission to change the existing user of their lands by putting them to industrial use and had written a letter to the Municipal Commissioner of Bombay for that purpose by which they proposed to construct on a portion of the land in S. No. 70 Hissa No. 4 a shed for a factory and other necessary sheds. Along with the said letter, they gave a notice under S. 33 of the Bombay Municipal Corporation Act, 1888 of their intention to erect a factory shed on the said land with a request for approval thereof. On January 27, 1962 the Executive Engineer, Development Plan intimated the petitioners that as a major portion of the proposed factory shed intended to be constructed fall outside the heavy industrial zone in the green belt area as shown in the plan accompanying the letter and as the area was affected by net work of proposed 78' East West and 30' wide North South road under the development plan of the area, with only a small portion of the land shown coloured violet falling in the heavy industrial area, a commencement certificate could not be granted. By their letter dated March 13, 1962 the petitioners complained that the Executive Engineer, Development Plan had no authority to earmark any area for green belt and therefore he should reconsider the matter and grant a commencement certificate. On the same day, the petitioners also wrote to the Municipal Commissioner that inasmuch as they had not till then received the notice of disapproval or any further requisition concerning their application, they would place on record that their right to proceed with the construction of the intended shed had become absolute under S. 345 of the Bombay Municipal Corporation Act. On March 22, 1962 the Deputy Municipal Commissioner (Suburbs) acknowledged receipt of the letter. By letter dated April 18, 1962 the Executive Engineer, Development Plan, informed the petitioner that their request for a commencement certificate would not be reconsidered until the development plan was finalised. By their solicitor's letter dated June, 13, 1962 the petitioners wrote to the 1st respondent, i. e. the Bombay Municipal Corporation, that the refusal to grant a commencement certificate was wrongful. This was followed up by a writ petition in the High Court of Bombay being Miscellaneous Petition No. 256 of 1962 challenging the said refusal as illegal and invalid. By order dated September 7, 1963 the High Court of Bombay allowed the petitioners application on the ground that the powers and functions of the Bombay Municipal Corporation under S. 12 of the Act had not been exercised by an officer prescribed under S.86 of the Act and the decision dated January 27, 1962 was liable to be set aside.