RANJAN MANUBHAI DOCTOR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE petitioners have filed the present petition as trustees of Seth Bhaidas Sakhidas Charity Trust. It is the case of the petitioners that they are the owners of the property bearing C. T. S. No. 2300 and 2304 of the bhuleshwar Division and as such are the holders of 3042 sq. meters in C. S. No. 2300 of the Bhuleshwar Division and 134. 62 sq. meters in C. S. No. 2304 of the bhuleshwar Division. By Notification dated 3rd January, 1967 the petitioners properties were notified as reserved for public purpose for recreation ground except for a small strip facing the then named Thakurdwar Road. The development plan for Greater Bombay has been adopted under the Maharashtra regional and Town Planning Act, 1966, hereinafter referred to as the MRTP Act. It is averred that a legal notice dated 28th March, 1989 was addressed by their advocate and served on the Bombay Municipal Corporation and Municipal commissioner under section 127 of the MRTP Act for acquisition of the aforesaid properties. In response to that on behalf of the respondent Nos. 2 and 3 a letter was addressed to the petitioner's Advocate that with the purchase notice documents set out therein were not forwarded. By reply dated 5th June, 1989 the respondent Nos. 2 and 3 were informed that it was not necessary for the petitioners to submit the documents as called for and if action was not taken petitioner would take steps to get property relieved from the reservation. It is the contention of the petitioners that the respondent Nos. 2 and 3 in spite of 22 years having elapsed after the sanctioned plan had failed to acquire the land or to take any steps for acquisition. The respondents on the contrary under the draft revised plan had now reserved the property for Municipal Market except for a narrow strip. It is submitted that as the respondents failed to take action pursuant to the notice dated 28th March, 1989 the respondents were duty bound to release the petitioners property and having failed to do so had abdicated their statutory obligations and duties imposed upon them. It is pointed out that the actions and/or omissions of the respondents are illegal and they are in contravention of Articles 14, 19, 21 and 300-A of the Constitution. Reliance is placed on the judgment of the Apex Court in the case of Municipal Corporation bombay vs. Dr. Hakimwadi Tenants Association and ors. , 1988 Mh. L. J. page I. The petitioners, therefore, prayed for a writ of certiorari to quash and set aside the Notification dated 3rd January, 1967 and for a further writ of mandamus to direct the respondent Nos. 2 and 3 to release the properties from reservation. The petition came to be admitted on 15th April, 1991 and status quo was ordered to be maintained.

(2.) ON behalf of the respondent Nos. 2 and 3 an affidavit has been filed by shri Suhas Vishwanath Deshpande. It is set out therein that the 1st respondent in the revised development plan has dereserved and/or deleted the reservation for recreation Ground on the Northern and Western part of the suit plot subject to the condition that the Southern part admeasuring about 2550 sq. mtrs. , shall be developed for Recreation Ground by the petitioners and the said part shall be shown reserved for Recreation Ground as shown in the Revised Development plan. The suit plots bearing C. S. No. 2300 and 2304 of Bhuleshwar Division were admeasuring 3176. 62 sq. mtrs. These plots along with adjoining lands were reserved for recreation ground in the draft development plan published on 26th may, 1983. The petitioners had approached the 2nd respondent with a request to delete the property from reservation, when the draft development plan was published by respondent No. 2 for inviting suggestions/objections under section 26 of the MRTP Act. On considering the petitioners contention the planning authority appointed under section 28 of the MRTP Act decided to delete the reservation partly from the petitioner's property. The said draft revised development plan was submitted by the respondent No. 2 for sanction by respondent No. 1 and consequently reservation No. 110 for Recreation Ground has been lifted from part of the petitioner's property. The revised plan was sanctioned on 28th August, 1990. Adverting to the notice served under section 127 on 28th March, 1989 it is set out that it was served when the draft revised development plan was already published and in the draft revised plan the reservation had been continued. As at that time the draft revised plan was not sanctioned the notice under section 127 would not be applicable to the reservation proposed in the draft revised development plan.

(3.) AT the hearing of this petition learned Counsel have drawn attention to the provisions of the Act as also various judgments of this Court as also of the apex Court. They will be adverted to the extent they are necessary for the purpose of deciding the controversy. It is contended that once the land was reserved for a public purpose and the owners serve the notice as required under section 127, and if steps are not taken by the planning authority to acquire the land within the time set out, the reservation lapses and it is not open to the authorities including the Planning Authority to once again reserve the property for a public purpose in the revised plan. For this purpose reliance has been placed on the judgment of the Apex court in the case of Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd. and ors. , AIR 2003 SC 511 as also the judgment of a Division Bench of this Court in the case of Baburao Dhondiba Salokhe vs. Kolhapur Municipal Corporation, kolhapur and anr. , 2003 (3) Mh. L. J. 820. Reliance is also placed in the judgment of the Apex Court in the case of Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants Association and ors. , 1988 Mh. L. J. (SC) 1 = AIR 1988 sc 233 and unreported judgment of a Single Judge this Court in the case of rajendra Kumar M. Gandhi and ors. vs. The Municipal Corporation of Greater bombay and ors. , in Writ Petition No. 641 of 1996 decided on 20th and 23rd September, 1996. On the other hand on behalf of the respondent Nos. 2 and 3 their learned counsel submits that once there is a power under section 38 for revision of the sanctioned plan, the mere fact that earlier no action is taken in terms of the sanctioned plan would not prohibit the respondents from revising the plan, in the meantime the petitioners had not applied for development of the property subsequent to the notice being served under section 127 of the MRTP Act. There is power in the Planning Authority to revise the plan. Reliance has been placed on an unreported judgment of this Court in the case of Robert Joseph Castelline and anr. vs. The State of Maharashtra and anr. in Writ Petition No. 3664 of 1989 decided on September 15, 1994 as also the judgment of another Division Bench of this Court in the case of Prakash Rewadmal Gupta vs. Lonavala Municipal council and ors. , in Writ Petition No. 2945 of 2001 decided on 9th November, 2001-2002 Vol. 104 (1) Bom. L. R. 626. It is submitted that the judgment of the apex Court in the case of Bhavnagar University (supra) will have to be distinguished considering that it was under the provisions of the Gujarat Town planning and Urban Development Act, 1976 and the issue before the Apex Court in the said judgment was whether there was an automatic revision on the expiry of 10 years. Learned Counsel, submitted that such an issue is not in issue in the present case, as notice is required to be served on expiry of a period of ten years from the notification of the sanctioned plan, whereas the planning authority can proceed to issue fresh notification for revision of development plan after expiry of a period of twenty years from the notification of the sanctioned plan. Referring to the judgment of the Baburao Dhondiba Salokhe, it is pointed out that in that case after the notice was served for dereservation under section 127 the petitioner had applied for development of the property before the revised plan was notified. As a right had been accrued, though subsequently there was a revised draft plan the Division Bench of this Court held that subsequent revision will be of no consequence. The Division Bench also did not take notice of the fact that the section providing for revision of plan has not been challenged. It is, therefore, submitted that the said judgment also is distinguishable.