JANHIT MANCH Vs. STATE OF MAHARASHTRA, PRINCIPAL SECRETARY DEPARTMENT OF URBAN DEVELOPMENT, PRINCIPAL SECRETARY, REVENUE AND FOREST DEPARTMENT, GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) Originally the writ petition was filed in public interest seeking a restraint from de- reserving a plot of land. During the pendency of the petition, a notification came to be issued on 10-2-2004. By this notification 50% of land, after de-reservation, was given to respondent No. 3 and the remaining 50% was to be continued as reserved. It was also reflected in the amended Development Plan. The petitioners thereafter amended the petition and have challenged the said notification in this petition. Counters have been filed and we have heard the learned Counsel appearing for the parties at length.

(2.) This petition relates to a piece of land admeasuring 58197 sq. metres (approximately 14 acres) adjacent to the existing Ranibaug Botanical Garden & Zoo. It was always reserved under the Development Plan for extension to the Zoo. Two lease deeds were executed with respect to this land by Collector of Bombay in favour of respondent No. 3-Mafatlal Industries Limited, effective from 1913 and 1918 respectively for a period of 99 years each. The leases also gave an option for renewal to respondent No. 3 for a further period of 99 years on the same terms and conditions. Only the rent would be increased on the basis of prevailing market value. On 23-12-1991 the Final Development Plan for E-Ward came into force. The reservation of the land as an extension for the Zoo was continued. Respondent No. 3 filed a petition being Writ Petition No. 1327 of 1992 challenging the retention of the reservation and submitted that the land should have been marked for industrial use. In February, 2000 respondent No. 3 filed a Reference with the BIFR under SICA. In June, 2000 respondent No. 3 stopped manufacturing activity and on 19-9-2000 respondent No. 3 was declared a sick industrial company by the BIFR. The IDBI was directed to prepare a scheme for revival, if found viable. Respondent No. 3 addressed a purchase notice under Section 49 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter called as "the MRTP Act") to the Government of Maharashtra. On 14-5-2001 respondent No. 3 gave another proposal to the Government and it was proposed that the Government should de-reserve the said land thereby enabling respondent No. 3 to restart spinning activities at its Mazgaon Unit and develop a portion of the land in accordance with DCR No. 58. On 18-6-2001 the Government of Maharashtra rejected the purchase notice. On 4-7-2001 the Government passed an order under Section 37(1) of the MRTP Act, directing the Bombay Municipal Corporation to initiate steps to modify the Development Plan so as to effect the deletion of the said reservation. On 20-4-2002 the Bombay Municipal Corporation wrote a letter to the BIFR opposing deletion of the reservation. On 30-10-2002 the BIFR sanctioned the scheme for rehabilitation of respondent No. 3-Mill. The sanctioned scheme envisaged the operation of the plant at Mazgaon with 10000 spindles and payment of the dues of the workers and financial institutions. An integral part of the sanctioned scheme was the sale of surplus/unproductive assets of respondent No. 3, including its land. One of the reliefs which was required to be granted by the Government under the sanctioned scheme was the issuance of the final order for de-reservation of the said land and to allow respondent No. 3 to develop its land under DCR No. 58 in order to finance the scheme. The sanctioned scheme envisages the rationalisation of the work-force of respondent No. 3. The total VRS payable under the sanctioned scheme was Rs. 104.75 crores. Out of this, about Rs. 86 crores pertain to the workers of the Mumbai Unit of respondent No. 3. The notification of the Government was issued under Section 37(2) of the MRTP Act, sanctioning deletion of 50% of the net reservation area from the "extension of VBJ Udayan" and designating the deleted area as "extension activities" and retaining the remaining 50% as reserved for extension to VBJ Udayan on the terms and conditions stipulated in the order. One of the conditions was that respondent No. 3 shall handover to the Bombay Municipal Corporation free from encumbrances the reserved area on non-cash compensation term. As a result of this the total area of land reserved for the Zoo in 1967 Development Plan was 12 hectares. Of this, respondent No. 3 admeasures 5.56 hectares. Fifty percent of this land i.e. 2.78 hectares has been released from reservation. The facts have been mentioned briefly and are not disputed.

(3.) The learned amicus curiae appearing in the case has challenged the order on various grounds. He submitted that the Zoo, which is also a botanical park, is the only open space of a reasonable size in the area and is extensively used as a recreational space by the public. He submits that the City of Mumbai suffers from a gross shortage of public open spaces and those spaces which exist are facing tremendous pressure. He submitted that universally it is expected that open space to population ratio must be at least 4 acres per thousand persons, but in Mumbai it would be around 088 acres per thousand persons. He further submitted that there are studies which have placed it at around 03 acres per thousand persons. Therefore, the learned amicus curiae submits that it is need in Mumbai to save open spaces which are still available because it will not be possible to create open spaces. He also contended that as a principal de- reservation of land reserved for such open spaces should not be allowed unless it was absolutely unavoidable or inescapable. In any effort for balancing of interest while considering de-reservation of an open space, the Court should always tilt in favour of maintaining the reservation. Thirdly, he contended that since the land was reserved for extension of the Zoo, the Government should have considered whether the land in question was required for the Zoo or not. He has also contended that the justifications given by the respondents for de-reservation of a part of the land were not relevant. According to him, the present figure of workers' dues payable under the VRS were only Rs. 27 crores. All 2634 workers of respondent No. 3 in Mumbai had opted for the VRS and, therefore, were entitled to the VRS. He also contends that TDR rates were approximately Rs. 25,000/- per sq. metre at that time and had respondent No. 3 surrendered the entire 14 acres against receipt of TDR for the plot, it would have received about Rs. 193 crores. Therefore, the interest of the workers could have been taken care of with this money.