HOUSILA BALCHAND SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This writ petition under Article 226 of the Constitution of India raises a question whether or not the State Government after sanctioning and publishing the final plan under section 31 of the Maharashtra Regional & Town Planning Act, 1966 (for short, "the Act"), by issuing corrigendum, could restore the status-quo ante without taking recourse to the entire process of republication of notification under sections 28 and 31 read with section 37 of the Act. In other words, whether or not for rectifying an error in the final development plan published under section 31, the procedure contemplated under sections 28 and 31 read with section 37 of the Act could be by-passed. In the present case, the entire area in survey no.34, which was reserved for botanical garden in the draft development plan, was reduced and 15,000 sq.meters on the western side was shown in residential zone. This error of reduction was rectified by issuing corrigendum and the status-quo ante was restored.

(2.) The petitioner is the owner of land bearing survey no 34, Hissa Nos 5/1, 6,3,5 situated at Anand Valli, Nasik city, within the territorial jurisdiction of the Municipal Corporation of City of Nasik, i.e. Respondent no.3 (for short, "the land in question" or "the land"). In the petition it is stated that the total extent of the land in survey no.34 is approximately 30,000 sq.meters. Respondent nos 3 and its Commissioner-respondent no.4, the Planning Authority, under section 26 of the Act prepared and published the draft development plan in the Government Gazette dated 3.8.1989 in which at sr.no.70 the land in question was shown reserved for garden. The petitioner, on 11.9.1989, obtained a copy of the part of the said draft development plan. A notice dated 24.7.1990 bearing no.VIYO/Nasik Mun.Corpn/Sec.28 /1377/237/1556, purporting to be under section 28(3) read with section 26 of the Act, inviting objections with respect to the reservation of survey no.34 in the draft development plan was served on the petitioner. However, he did not submit objections. He was also called upon, to remain present before the concerned authority on 7.8.1990 for personal hearing. In reply dated 21.9.1990, the petitioner contended that there was no need to reserve survey no.34 for garden inasmuch as the said land was falling in green belt and as such there was no reason for reserving several pieces of land on either side of the road for garden. It was further pointed out that the said property was also an agricultural land which was being cultivated by him and that he had incurred substantial expenditure over its development. A reference was also made to the resolution passed by the Corporation dated 26.4.1985 by which it had decided to convert the said land into residential zone and contended that the reservation shown in the draft development plan was contrary to the said resolution. It appears that the petitioner had on 9.3.1993 made further representation to respondent no.1 objecting to the reservation of the said land for the purpose of garden.

(3.) Respondent no.3-Corporation, after following the procedure stipulated under section 28 of the Act and giving an opportunity of being heard to the petitioner, finalised the draft development plan and submitted it to respondent no.1 for its sanction under section 31 of the Act. Respondent no.1, being the final authority, accorded final sanction to the draft development plan of the city of Nasik with some modifications and published the same in the Government Gazette dated 28.6.1993. It was also ordained by respondent no.1 that the final development plan would come into effect on 16.11.1993.