JUDGMENT
R.M. Lodha, J.
1. Heard Mrs.M.V.Shetty, learned Counsel for
Petitioners and Ms.Savla, learned Counsel for
Respondent No.2 viz. Municipal Corporation of
Gr.Bombay.
2.At the outset, we are constrained to
observe that the first Respondent viz. State of
Maharashtra has not chosen to file any counter or
return in opposition to the Writ Petition.
Shockingly, nobody has appeared for State
Government to argue the matter on their behalf.
In the circumstances, we heard the learned Counsel
for Petitioners and learned Counsel for second
Respondent.
3.The Petitionerslaimed to be owners of a
plot of land admeasuring 3646.23 sq.mtrs. known
as Hakimwadi situate at the junction of Falkland
Road and Eruchshaw Road, bearing Cadastral Survey
No.176, Tardeo Division, Bombay, particulars
whereof are given in Exhibit-A. The said property
was reserved for a Municipal Recreation ground in
the “D” Ward Development Plan sanctioned by the
State Government under Government Notification,
Urban Development, Public Health and Housing
Department No. TPB-4366/78109 dated 6-1-67.
According to Petitioners, the proceedings for
acquisition of the said property were not
commenced for more than 10 years. The Petitioners
then served a notice dated 1st July, 1977 under
Section 127 of the Maharashtra Regional and Town
Planning Act, 1966 ( for short “the MRTP Act”) so
that Planning Authority could either acquire the
said property or release the same from
reservation. It appears that correspondence
ensued between the Petitioners and the authorities
of the Municipal Corporation of Greater Bombay
(Planning Authority) thereafter and ultimately on
7th April, 1978 the first Respondent in exercise
of the powers conferred by sub-section (4) read
with sub-section (2) of Section 126 of the MRTP
Act read with Section 6 of the Land Acquisition
Act, 1894 declared that the property in question
is needed for public purpose of recreation ground.
The declaration under Section 6 was published in
the Government Gazette on 20th April, 1978. It is
averred by the Petitioners in the Writ Petition
that though the Petitioners submitted their
statement of claim dated 11th April, 1979, no
Award was passed and the Land Acquisition Officer
informed the Petitioners vide letter dated 19th
July, 1980 that the acquisition proceedings for
the land in question were to be kept in abeyance.
The Petitioners claim to have filed a Writ
Petition being Writ Petition No. 1420 of 1980 in
this Court for a direction to the concerned
authorities to publish the Award and pay
compensation to the Petitioners. This Court by
order dated 28-1-1981 directed the Land
Acquisition Officer to declare the Award and
determine the compensation in respect of the
property in question within six months therefrom.
Thereafter it appears that several tenants of the
property in question formed an Association styled
Dr.Hakimwadi Tenants Association and got it
registered under the Societies Registration Act
and filed Writ Petition No.799 of 1981 for
quashing the proceedings for acquisition commenced
by the Planning Authority and the consequent
notification issued by first Respondent on the
ground that reservation of the land had lapsed.
The learned single Judge of this Court by an order
dated 21st September, 1983 quashed and set aside
the Notification issued by first Respondent under
Section 6 of the Land Acquisition Act and all
steps subsequent to the issuance of the said
Notification . The learned single Judge also
declared that the Planning Authority and the State
Government are not entitled to acquire the
property in question in exercise of the powers
under Section 126 of the MRTP Act. A letters
Patent Appeal was filed by Respondent No.2 before
a Division Bench of this Court but without
success. The second Respondent also challenged
the order of the learned single Judge and that of
Division Bench before the Apex Court in Civil
Appeal No. 4139 of 1986. The said Appeal was
dismissed by the Apex Court on 24-11-1987. It
appears that during the interregnum, Bombay
Municipal Corporation ( second Respondent)
finalised the Draft Revised Development Plan of
“D” Ward but in view of the judgment of the Apex
Court, the reservation of property in question was
deleted and Draft Revised Development Plan of “D”
Ward was forwarded to the State Government. The
State Government upon receipt of the Draft Revised
Development Plan of “D” Ward, made modification
thereon so far as property in question is
concerned and reserved the property in question
for public purpose of recreation ground. It is
this modification made by the State Government in
Draft Revised Development Plan of “D” Ward under
Section 31(1) of the MRTP Act which is under
challenge before us in this Writ Petition.
4.Principally the challenge to the said
modification of the Draft Revised Development Plan
of “D”Ward is on the ground that no notice as
required under second proviso to Section 31 (1) of
the MRTP Act was published by the first Respondent
inviting objections and suggestions to the said
Reservation and,therefore, such modification is
bad-in-law.
5. As we have already noted above, the facts
stated in the Writ Petition have not been
traversed. Neither the first Respondent nor the
second Respondent has chosen to file any counter
or return to oppose the Writ Petition. It is thus
clear that in the Draft Revised Development Plan
of “D” Ward forwarded by the Planning Authority
i.e. Respondent No.2 to the State Government (
Respondent No.1) the property in question was not
reserved for any public purpose. The State
Government, however, appears to have not agreed
with the view of the Planning Authority and
modified the Draft Revised Development Plan of “D”
Ward by reserving the property in question for
recreation ground. The question that arises for
reconsideration is whether such modification in
the Draft Revised Development Plan of “D” Ward
made by the State Government is in accordance with
law.
6. We have already made reference to the
Writ Petition filed by the tenants of the property
in question in the name of Dr.Hakimwadi Tenants
Association for quashing the proceedings for
acquisition of the property in question commenced
by the Planning Authority and the consequent
notification issued by the first Respondent. The
matter ultimately went to the Supreme Court and
the Judgment of the Apex Court is . In paragraph 7 of the report,
the Apex Court ruled thus:-
“7. According to the plain reading of
S.127 of the Act, it is manifest that the
question whether the reservation has
lapsed due to the failure of the Planning
Authority to take any steps within a
period of six months of the date of
service of the notice of purchase as
stipulated by S.127, is a mixed question
of fact and law. It would therefore be
difficult, if not well-high impossible,
to lay down a rule of universal
application. It cannot be posited that
the period of six months would
necessarily begin to run from the date of
service of a purchase notice under S.127
of the Act. The condition prerequisite
for the running of time under S.127 of
the service of a valid purchase notice.
It is needless to stress that the
Corporation must prima facie be satisfied
that the notice served was by the owner
of the affected land or any person
interested in the land. But, at the same
time, S.127 of the Act does not
contemplate an investigation into title
by the officers of the Planning
Authority, nor can the Officers prevent
the running of time if there is a valid
notice. Viewed in that perspective, the
High Court rightly held that the
Executive Engineer of the Municipal
Corporation was not justified in
addressing the letter Dt.July 28, 1977 by
which he required Respondents 4-7, the
trustees, to furnish information
regarding their title and ownership, and
also to furnish particulars of the
tenants , the nature and user of the
tenements and the total areas occupied by
them at present. The Corporation had the
requisite information in their records.
The High Court was therefore right in
reaching the conclusion that it did. In
the present case, the Planning Authority
was the Municipal Corporation of Greater
Bombay. It cannot be doubted that the
Municipal Corporation has access to all
land records including the records
pertaining to cadastral survey No. 176
of Tardeo. We are inclined to the view
that the aforesaid letter dt. July 28,
1977 addressed by the Executive Engineer
was just an attempt to prevent the
running of time and was of little or no
consequence. As was rightly pointed out
by respondents 4-7 in their reply
dt.Aug.3, 1977, there was no question of
the period of six months being reckoned
from the date of the receipt from them of
the information requisitioned. The
Municipal Corporation had been assessing
the trust properties to property tax and
issuing periodic bills and receipts
therefor and obviously could not question
the title or ownership of the trust.We
are informed that the building being
situate on Falkland Road, the occupants
are mostly dancing girls and this is in
the knowledge of the Corporation
authorities. The rateable value of each
tenement would also be known by an
inspection of the assessment registers.
We must accordingly uphold the finding
arrived at by the High Court that the
appellant having failed to take any
steps, namely, of making an application
to the State Government for acquiring the
land under the Land Acquisition Act
within a period of six months from the
date of service of the purchase notice,
the impugned notification issued by the
State Government under S.6 Land
Acquisition Act, making the requisite
declaration that such land was required
for a public purpose i.e. for a
recreation ground was invalid, null and
void.”
Then in paragraph 10 the Apex Court ruled thus:
” 10. Another safeguard provided is the
one under S.127 of the Act. It cannot be
laid down as an abstract proposition that
the period of six months would always
begin to run from the date of service of
notice. The Corporation is entitled to
be satisfied that the purchase notice
under S.127 of the Act has been served by
the owner or any person interested in the
land. If there is no such notice by the
owner or any person, there is no question
of the reservation, allotment or
designation of the land under a
development plan of having lapsed. It a
fortiorari follows that in the absence of
a valid notice under S.127, there is no
question of the land becoming available
to the owner for the purpose of
development or otherwise. In the present
case, these considerations do not arise.
We must hold in agreement with the High
Court that the purchase notice dt.July 1,
1977 served by Respondents 4-7 was a
valid notice and therefore the failure of
the appellant to take any steps for the
acquisition of the land within the period
of six months therefrom, the reservation
of the land in the Development Plan for a
recreation ground lapsed and consequently
the impugned notification dated April 7,
1978 under S.6, Land Acquisition Act,
issued by the State Government must be
struck down as a nullity.
7. Ultimately overruling all the grounds set
up by the Appellant therein viz. Municipal
Corporation of Greater Bombay, the Apex Court
maintained the order passed by the learned single
Judge and affirmed in Letters Patent Appeal by the
Division Bench. The effect of the judgment of the
Apex Court was that the reservation of property in
question for recreation ground in Development Plan
had lapsed. This related to the Development Plan
of the year 1967. In the interregnum before the
matter was decided by the Apex Court, Respondent
No.2 finalized the Draft Revised Development Plan
of “D” Ward. However, after the judgment of the
Apex Court, the Planning Authority i.e.
Respondent No.2 deleted the reservation of
property in question for recreation ground and
forwarded the Draft Revised Development Plan to
the State Government under Section 30 of the MRTP
Act. Section 31 of the MRTP Act provides the
procedure for sanction to Draft Development Plan
which reads thus:
” 31. Sanction to draft Development
Plan. : (1) Subject to the provisions of
this Section, and not later than one
year from the date of receipt of such
plan from the Planning Authority, or as
the case may be, from the said Officer,
the State Government may, after
consulting the Director of Town Planning
by notification in the Official Gazette
sanction the draft Development plan
submitted to it for the whole area, or
separately for any part thereof, either
without modification, or subject to such
modification as it may consider proper or
return the draft development plan to the
Planning Authority or as the case may be,
the sa id Officer for modifying the plans
as it may direct or refuse to accord
sanction and direct the Planning
Authority or the said Officer to prepare
a fresh Development Plan.
Provided that, the State Government
ay, if it thinks fit, whether the said
period has expired or not, extend from
time to time, by a notification in the
Official Gazette, the period for
sanctioning the draft development plan or
refusing to accord sanction thereto, by
such further period as may be specified
in the notification.
Provided further that, where the
modifications proposed to be made by the
State Government are of a substantial
nature, the State Government shall
publish a notice in the Official Gazette
and also in local newspapers inviting
objection and suggestions from any person
in respect of the proposed modifications
within a period of sixty days, from the
date of such notice.
(2)The State Government may appoint an
officer of rank not below that of a
Class-I Officer and direct him to hear
any such person in respect of such
objection and suggestions and submit his
report thereon to the State Government.
(3) The State Government shall before
according sanction to the draft
Development Plan take into consideration
such objections and suggestions and the
report of the officer.
(4)The State Government shall fix in
the notification under sub-section (1) a
date not earlier than one month from its
publication on which the final
Development plan shall come into
operation.
(f)If a Development Plan contains any
proposal for the designation of any land
for a purpose specified in clauses (b)
and (c) of Section 22, and if such land
does not vest in the Planning Authority,
the State Government shall not include
that in the Development Plan, unless it
is satisfied that the Planning Authority
will be able to acquire such land by
private agreement or compulsory
acquisition not later than ten years from
the date on which the Development plan
comes into operation.
(6)A Development plan which has come
into operation shall be called the “final
Development Plan” and shall, subject to
the provisions of this Act, be binding on
the Planning Authority.”
8. We are mainly concerned with compliance
of second proviso to sub-section (1) of Section 31
of the MRTP Act inasmuch as the question posed by
Petitioners before us is that since the Planning
Authority in the Draft Revised Development Plan
submitted to the State Government had not reserved
the property in question for recreation ground,
whether the State Government upon modification of
the Draft Revised Development Plan submitted by
the Planning Authority which was of a substantial
nature was required to publish notice in the
Official Gazette and local newspapers inviting
objections and suggestions.
9. We have no hesitation in holding that the
State Government by reserving the property in
question for recreation ground which was not
proposed by Planning Authority has definitely made
modification in the Draft Revised Development Plan
of a substantial nature. As a matter of fact,
Ms.Savla, learned Counsel appearing for Respondent
No.2 could not seriously refute this position. If
the State Government proposed to make
modifications in the Draft Revised Development
Plan of “D” Ward submitted by the Planning
Authority and when the said modification was of a
substantial nature, it was incumbent upon the
State Government to public a notice in the
Official Gazette and also in local newspapers
inviting objections and suggestions from any
person in respect of proposed modification within
a period of 60 days from the date of such notice
and having not done that, the procedure prescribed
in second proviso to sub-section (1) of Section
31, which is mandatory in character, has not been
adhered to and that vitiates the modification made
by the State Government in the Draft Revised
Development Plan of “D” Ward whereby the property
in question has been reserved for recreation
ground.
10. We, accordingly, allow the Writ Petition
in terms of prayer clause (a). Prayer clause (a)
reads thus:-
“(a) That this Honble Court be pleased
to issue a writ of mandamus or writ in
the nature of mandamus or any other writ,
order or direction under Article 226 of
the Constitution of India to call for the
records from the Respondents and after
examining the same and going into the
legality and propriety of the impugned
reservation of the land bearing
C.S.No.176 of Tardeo Division known as
Hakimwadi Chawl, situate at the junction
of Falkland Land Road and Eruchshaw Road
in the Development Plan, off “D” Ward
sanctioned by the 1st Respondents under a
Govt. Resolution No.TPB-4390/1902 UD
(RDP) dated 6th July, 1991 caused the
said reservation;”
No costs.
Certified copy expedited.