URMILABEN JAYANTILAL PARIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY the present petition, the petitioners are seeking relief in the form of writ of mandamus directing the respondents to dereserve Plot Nos. 626/1 and 626/17 belonging to petitioner Nos. 1 and 2 respectively totally admeasuring 897. 80 sq. mtrs. situated at village Oshiwara, of Taluka Andheri in Registration District and Sub District of Bombay Suburban and more particularly described in Exh. A to the petition.

(2.) THE brief facts relevant for the decision are that the first Development Plan for K/west Ward of Greater Bombay was sanctioned by the respondent No. 1 on 7-7-1966 and it came into force with effect from 8-8-1966 and that at the relevant time, C. T. S. Nos. 626/1 and 626/17 which are the subject matter of the petition were falling under Industrial Zone (1-2 ). At that time, they were not reserved for any public purpose in the Development Plan. The petitioner No. 1 herein purchased Plot Nos. F-1 to F-16 (C. T. S. No. 626/1 to 626/5) along with some other plots by a Deed of Sale dated 21-11-1968. Similarly, the petitioner No. 2 also purchased plots bearing No. F-41 to F-44 (C. T. S. Nos. 626/17) by the Sale Deed of the same date. Both the deeds were duly registered. The respondent No. 2, Municipal Corporation of Gr. Bombay in terms of the provisions contained in section 23 of the Maharashtra Regional Town Planning Act (hereinafter called the M. R. T. P. Act read with section 38 of the M. R. T. P. Act declared its intention to revise the said Development Plan which was finalised in the year 1966 and accordingly after following the procedure prescribed under the said M. R. T. P. Act, the respondent No. 1 changed the user of the said land in question along with the neighbouring area from Industrial zone to the residential zone by notification dated 14-1-1980. On 30-4-1984, after carrying out the actual survey in the concerned area in terms of the provisions contained under section 25 of the M. R. T. P. Act, the respondent No. 2 prepared and published necessary notice under section 26 (1) of the M. R. T. P. Act inviting objections and suggestions from the public for the revised Development Plan. In the draft revised Development Plan, the land of the petitioners along with the adjoining land bearing C. T. S. No. 625 (part) was shown under reservation for the purpose of recreation ground. The entire area comprising of the said C. T. S. No. 625 (Part) along with the petitioners land was shown as site No. 61 in the said plan and it comprised of total area of 26200 square meters. On 5-10-1985, the petitioners Architect lodged objection to the said Development Plan and made certain suggestions for necessary correction and incorporation in the Draft Development Plan. The Planning Committee after hearing the objections and suggestions by all the persons concerned, including the petitioners, prepared a report on the basis of the such suggestions and objections, made certain recommendations. It recommended deletion of 50% of area from the reserved site No. 61. Consequently, the area comprising under C. T. S. No. 626 (part) from site No. 61 was dereserved and only the area comprising of C. T. S. No. 626/1 and 626/17 was retained as "the reserved area" for recreation ground. In the result, therefore, an area of only 879. 80 square meters out of the total area of 26,200 sq. mtrs. was reserved for recreation ground. The said recommendation of the Committee was accepted by the respondent No. 2 who submitted the revised Draft Development Plan of K/west Ward for sanction under section 31 of the M. R. T. P. Act after modification therein as suggested by the Committee which included the dereservation of C. T. S. No. 626 (part) and continuation of C. T. S. No. 626/1 and 626/17 as the reserved area. On 19-5-1990, the scrutiny of the Draft Development Plan was carried out by the Urban Development Department and the same was placed before the Secretaries Committee appointed under the Chairmanship of Mr. K. B. Srinivasan (then Chief Secretary of the State of Maharashtra ). Meanwhile, it is the case of the petitioners that despite the reservation being continued from the year 1984 in the area comprised under C. T. S. 625 (part), one M/s. Ajmera Construction Corporation commenced construction in the said plot No. 625 (part) which formed part of site No. 61. The construction was carried out sometime in the year 1991 without any objection by the respondents for such construction, and inspite of the fact that it was reserved area. Simultaneously, the objections filed by the petitioners to the draft revised plan were being considered by the respondents and concerned Committee after studying the modification done by the Municipal Corporation in the draft revised plan and after carrying out inspection, submitted its report. A copy of the said report is made available on record at Exh. 2 along with the affidavit of the respondent No. 2. According to the said Committee report, since the building Construction had already come up in the area comprised of C. T. S. No. 625 (part), the said land was required to be dereserved since the said land was not available as recreation ground and therefore no purpose was to be served in keeping the said land under reservation. As regard the remaining portion of the area of site No. 61 which comprised of C. T. S. Nos. 626/1 and 626/17 belonging to the petitioners, it was decided to be continued to be kept as the reserved plot for recreation purpose. Consequent to the said report, the petitioners were informed by the respondent No. 1 on 29-6-1992, that request made for dereservation in respect of the said land of the petitioners would be considered while finalising the Draft Development Plan of the K/west Ward that the petitioners submissions would be considered at that time. The petitioners, accordingly, again by letter dated 14-3-1992 reminded the respondents to de-reserve their plots. However, the Government sanctioned the revised draft plan for K/west on the basis of the recommendations of the Srinivasan Committee which had been accepted by respondent No. 1 by its decision dated 19-3-1993 and accordingly, the notification to that effect was issued. The petitioners, subsequently enquired about the decision regarding their request for dereservation of their plots which was replied to by the respondent No. 2 on 16-6-1993 that the land of the petitioners was continued to be reserved for the purpose of recreation ground. The petitioners, thereupon, on 26-7-1993 made representation to the concerned Minister to look into the matter. However, the respondent No. 2 again informed the petitioners that the land in question of the petitioners was reserved for playground. The same was communicated to the petitioners by the respondent No. 2 by its letter dated 18-2-1994. Consequently, the petitioners filed the present writ petition.

(3.) UPON hearing the learned Advocates for the parties and on perusal of the entire record placed before us, including the decision of the Planning Committee on the point of request by the petitioners for dereservation of their plots consequent to the dereservation of the area comprised under C. T. S. No. 625 (part) it is seen that undisputedly from the year 1984 the area comprised under C. T. S. No. 625 (part) was under reservation for recreation ground. While the said land continued to be under reservation for recreation ground, construction was carried out on the said plots sometime in the year 1991. The report of the Planning Committee as well as the Scrutiny Committee disclose that dereservation of plot comprising of C. T. S. No. 625 was on account of the fact that said area was already utilised with full F. S. I, for construction purposes and therefore was not available as play ground. In other words, since the fact of construction and non-availability of open land in C. T. S. No. 625 (part) being fait accompli, there was no justification for keeping the same under reservation for recreation purposes and that therefore it was to be de-reserved whereas the remaining area comprised of the petitioners plot continued to be an open land and therefore was decided to be retained as recreation ground. The decision in this regard of the Committee, the relevant portion of which is placed on record reads thus :