ORDER
1. The challenge in this writ petition is to the notification dated 7th May, 1992
issued by the State Government under Section 31(1) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act) in so far as it
changes the reservation of plot bearing City
Survey No. F951 & I No. 53 of TP Scheme IV,
IIIrd Road Bombay from “Municipal
Dispensary & Nurses’ Quarters” to “Re
creation Ground”. The petitioners have also
challenged the order dated 28th Dec. 1994
rejecting the petitioners’ application under
Section 24(1) of the Urban Land. Ceiling and
Regulation Act, 1976 (ULC Act) for allotment of the said land to the petitioner No. 1
society for constructing houses for its members. Petitioner No. 1 is a proposed co
operative society. Petitioner No. 2 is the
Chairman of petitioner No. 1 society. It is the
case of the petitioners that they had entered
into an agreement of sale on 21st Sept 1975
for the purchase of the said land with (he
owner Mrs. Myrtle Almeida. It is further the
case of the petitioners that the original owner
did not disclose the agreement of sale in the
proceedings under the ULC Act and ultimately the land was declared as surplus and
acquired by the State Government on 15th
May, 1979. It seems that thereafter the
petitioners made an application for allotment
of the land under Section 24 of the ULC Act.
The petitioners’ application was processed by
the concerned officers with recommendation
to make the allotment of the land to the
petitioners subject to construction of a dispensary at the cost of the petitioners and
handing it over to the municipal authorities.
However, by the impugned notification dated
7th May, 1992 the reservation of the land was
changed by the State Government from
“Municipal Dispensary & Nurses’ Quarters”
to “Recreation Ground”. In view of the fact
that the plot was reserved for recreation
ground, the petitioners application came to be
rejected on 26th Dec. 1994. .
2. The basic contention of the petitioners is that the change of reservation from
Municipal Dispensary & Nurses’ Quarters to Recreation Ground by the State Government without taking steps under Section 39 read with Section 92 of the MRTP Act is illegal. It is pointed out that in the Town Planning Scheme of 1937, the land is designated for residential purpose. Even under the Revised Planning Scheme of 1959, the user of the land remains residential. It is, therefore, contended that the reservation of the land for Recreation Ground by the impugned notification amounts to variation in the Town Planning Scheme and since such variation is not permissible without following the procedure prescribed under Section 39 read with Section 92 of the MRTP Act, the impugned notification is liable to be declared as ultra vires and illegal. It is further contended that there are other recreation grounds and parks in the vicinity and therefore there was no need for reserving the land in question for the purpose of Recreation Ground.
3. I do not find any merit in the contentions raised by the petitioners. In my opinion, they are based on total misconception of the provisions of the MRTP Act. But before dealing with the contentions of the petitioners, it is necessary to state the correct factual position that emerges on scrutiny of the record. It is true that the user of the land is designated as residential in the Town Planning Scheme of 1937 and Revised Planning Scheme of 1959. Originally the land belonged to Mrs. Myrtle Almeida. However, admittedly from 15th May, 1979 the land is vested in the State Government by virtue of the provisions of the ULC Act. In the year 1984 the development plan of Greater Bombay, which was sanctioned in 1966, was taken up for revision under Section 38 of the MRTP Act and as required under Section 26 of the MRTP Act, a notice was published inviting objections/suggestions to the Revised Development Plan for ward “H” (West). In the draft Revised Development Plan, the land, namely, CTS No. 5-957 was reserved for “Dispensary”. After considering the objections/suggestions, the planning authority i.e. B.M.C. while submitting the draft revised
plan to the State Government under Section 30 on 29th April, 1986 proposed that the reservation he changed to “Dispensary and Nurses Quarters”. The State Government after following due process of law sanctioned revised draft development plan of ‘H’ (West) ward under Section 31(1) of the MRTP Act under notification dated 7th May, 1992. While sanctioning the said development plan the reservation of dispensary, as published under Section 26, was changed to recreational ground. In view of the change in the reservation, it was clearly impermissible to make any construction upon the property and therefore the petitioners application for allotment of the land under Section 24 of the ULC Act was rejected by the State Government on 28th Dec. 1994.
4. Reverting back to the contentions of the petitioners it is necesssary to examine the provisions of the MRTP Act relating to the framing of Town Planning Scheme and preparation of Development Plan. Chapter V lays down procedure for making of Town Planning Schemes. Section 59 to 85 provides an elaborate procedure for preparation of a Town Planning Scheme. Section 86 then provides for sanctioning of the scheme by the State Government. Section 88 deals with effect of final scheme. Sections 89 and 90 confers powers on the planning authority to enforce the scheme. Then Sections 91 and 92 deals with power and procedure to vary the planning scheme. Turning then to the provisions pertaining to Development Plan it is seen that chapter III deals with preparation, submission and sanction to development plan and Chapter IV deals with the control of development and use of land included in the development plans. Under Section 21 it is the duty of the planning authority to prepare the draft development plan and submit such draft development plan to the State Government for sanction. Section 22 enumerates contents of development plan which includes proposals for allocating and use of the land for the purposes such as residential industrial, commercial, agricultural, recreational and also for designation of areas for open spaces, play-ground, stadium, zoological gardens, greenbelts, nature reserves, sanctuaries,
dairies etc. Section 26 provides for perparation and publication of notice of draft development plan. Then after considering the suggestions/objections, the planning authority is required to submit the plan to the State Government under Section 30 for sanction. Section 31 provides that the State Government may sanction the plan either without modification or subject to such modifications as it may consider proper or return the draft development plan to the planning authority for modifying the plan or refuse to accord sanction and direct the planning authority to prepare a fresh development plan. Under subsection 4 of Section 31, the State Government is required to fix a date on which final development plan shall come into force Section 38 requires the planning authority to revise the development plan every 10 years. Thus Chapter III lays down complete scheme for preparation and sanction of development plan. It is necessary to note that the planning authority is not precluded from reserving the land for a purpose different than the purpose designated under the Town Planning Scheme. Merely because the land is designated for residential purpose cannot prevent the planning authority from allocating a different user for this land or reserving the land for recreational purpose.
5. Now Section 39 on which heavy reliance is placed by the petitioners read as follows:
“39. Variation of town planning scheme by development plan.
Whether a final development plan contains proposals which are in variation, or modification of those made in a town planning scheme which has been sanctioned by the State Government before the commencement of this Act, the Planning Authority shall vary such scheme suitably under Section 92 to the extent necesssary by the proposals made in the final Development plan”.
The section provides that if it is noticed that the final development plan contains proposal which are in variation or modification of those in a Town Planning Scheme which has already been sanctioned by the State
Government before commencement of the MRTP Act, the planning authority shall be duty bound to vary such scheme suitably under Section 92 of the extent necessary by the proposal made in the final development plan. The legislative intent in enacting this section is to create the planning scheme as per the requirement of the final development plan so that the Town Planning Scheme which has already been sanctioned prior to the coming into force of the Act shall be brought on par with the final development plan. Thus Section 39 does not create any impediment in reserving a land in the Development Plan for a purpose other than the one designated under the Town Planning Scheme but it merely provides that the planning authority should take steps to make suitable changes in the Town Planning Scheme under Section 92 in order to remove inconsistency if any in the final development plan and the Town Planning Scheme which has been sanctioned prior to the commencement of the MRTP Act.
6. Coming then to the facts of the case we have already seen that under the Revised Development Plan the land was reserved for Municipal Dispenary & Nurses’ Quarters. While sanctioning the plan the State Government changed the reservation from Municipal Dispensary and Nurses’ Quarters to Recreational Ground. It is also seen that the Stale Government has got power to make modifications in the plan while granting sanction. Thus the change of reservation to Recreational Ground cannot be said to be without authority of law. Moreover, it was also not necessary to invite objections for the change effected by the State Government as, admittedly, the land is vested in the State Government. Even assuming that such reservation is in variation or modification of the Town Planning Scheme, all that is required by Section 39 is to alter the scheme suitably under Section 92. But by no stretch of imagination the provisions of Section 39 can be construed as some sort of a fetter on the planning authority’s power to allocate different users or make reservations. It is, therefore, not possible to accept the petitioners’ contention that without causing variation to the scheme, the land cannot be reserved for
public purpose of recreational ground.
7. As far as petitioners’ contention that
there are other recreational grounds and
parks in the vicinity and therefore there is no
need for reserving the land in question for
recreation purposes. It is well settled that this
Court cannot sit in appeal over the decision of
the planning authority in its writ jurisdiction
under Article 226 of the Constitution. Whether such recreational place should be pro
vided in the area is a matter within the domain
of the planning authority. I have therefore no
hesitation to reject the contention. In fact, in
my opinion, the petitioners have no, locus to
challenge the impugned notification. Merely
because the petitioners are aspiring for
allotment of the land under Section 24, it
cannot be said that they have any right or
interest in the said land. The authorities have
rightly rejected the petitioners’ application in
view of the changed circumstances. Hence,
petition is dismissed summarily.
8. Petition dismissed.
