JUDGMENT
V.G. Palshikar, J.
1. By this petition, the Municipal Corporation of Nashik has challenged the order passed by the Government of Maharashtra purportedly under section 47 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the Act).
2. The facts giving rise to the petition stated briefly are that a development plan was prepared by the Municipal Council of Nashik under the provisions of Bombay Town Planning Act 1954. On 1-6-1959 this development plan was sanctioned by the Government and in this development plan city Survey Nos. 133, 134, 135 and 136 were reserved for public purposes of road widening and car parking. This development plan continued to be the development plan under the above Act.
3. On 24-9-1974 the Municipal Council (as it then was) passed a General Council Resolution bearing No. 116 resolving to acquire the said lands for road widening and car parking. The State Government was therefore approached to start acquisition proceedings under section 126 of the Act read with provisions of Land Acquisition Act, 1894. Ultimately on 31-5-1983 the Special Land Acquisition Officer passed an Award acquiring the said land for the said purpose. On 26-4-1984 an application for review made by the tenants of the property was rejected by the Revenue Commissioner.
4. On 18-11-1985 Land Acquisition Officer issued notices to the owners and tenants to vacate the premises on or before 17-12-1985, so that the land would be handed over to the petitioner. On 3-1-1986 however W.P. No. 14/86 was filed before this Court praying for quashing of the acquisition proceedings culminating in the Award dated 31-5-1983. Though the petitioners sought quashing of the acquisition proceedings a body for which the acquisition was undertaken that the petitioner was not made a party to the petition.
5. On 7-4-1994 the Government of Maharashtra issued a Resolution purportedly under section 154 of the Act, indicating that the Municipal Council of the Corporation as the case may be can take steps to request the Government to amend the Rules by taking appropriate steps under section 37 of the Act and submit the same for approval and on approval for implementation wherever necessary.
6. On 26-9-1994 respondents 2 to 6 made an application to the Municipal Commissioner of the petitioner seeking permission to permit the owners to develop the land as per the recent policy declared by the State vide Resolution dated 7-4-1994. Around same time the Municipal Corporation also started to proceed to undertake development of the said lands and therefore rejected the proposal of the respondents 2 to 6 submitted by them on 26-9-1994 on the ground that since the said land is being developed through the Municipal Corporation its proposal cannot be accepted. This was done by communication dated 13-7-1995. The respondents 2 to 6 therefore filed an appeal before the Government challenging the decision of the petitioner dated 13-7-1995. Submissions were made before the State Government by both the petitioner and the respondent in support of their rival contentions. The petitioner Corporation claimed that the appeal be dismissed as not maintainable as also on merit which was opposed by the Corporation. The respondents claimed that the appeal is liable to be allowed under section 47 of the Act.
7. It is to be noted here that during all this, W.P. No. 14/86 was pending in this Court. Therefore Civil Application No. 4148/96 was made in this petition by respondents 2 to 6 for being joined as party respondent. This application was rejected by this Court on 27-4-1996. It was thereafter categorically contended by the Corporation before the State Government that in view of the fact that the Corporation itself is willing to develop the property as per the plan and there is no question of granting any proposal for development by the builder or the owner and prayed that the appeal be dismissed.
8. However on 17-8-1996 the State Government passed an order and allowed the appeal directing the petitioner to cancel the acquisition proceedings and sanctioned the plan according to the existing Development Rules. This order is challenged by the Corporation in this petition, on the ground mentioned in the petition as also on the ground verbally addressed before us. It was contended by the learned Counsel Mr. C.R. Dalvi appearing of the Corporation that the order of State Government dated 27-8-1996 is unsustainable in law as it is outstanding the scope of the power of the State either under this Act or under the Land Acquisition Act. The order was supported by the respondent on the ground that the State Government does have the power under section 154 of the Act to issue such directions. The correctness of the order passed by the State is therefore an issue to be decided by us.
9. It will be necessary in the circumstances to notice the legal provisions which exists in this mater and to find out whether the State Government could, in the circumstances and on the basis of legal provisions exists, pass the impugned order.
10. It is not in dispute that the petitioner is the planning authority as defined by the Act and therefore has all the rights to decide and undertake development of the city of Nashik in accordance with the provisions of the Act. It was in exercise of this analogy that the petitioner sought acquisition of certain lands for the road widening and car parking. The land acquisition proceedings were accordingly taken up and completed and thereafter the petitioner decided to undertake the development in relation to this land. It is pertinent to note that till the impugned order was passed in the year 1996, W.P. 14/86 was pending. Taking into consideration this order, the petition was sought to be withdrawn and was allowed to the withdrawn as the purpose of which the application was filed stood fulfilled by the order impugned in this petition in as much as permission as directed to be granted to respondents 2 to 6 to develop the said land in accordance with the Resolution of 1995.
11. It will be seen from the provisions of section 44 that permission can be sought by individual or body by making an application in writing to the planning authority for permission to carry out any development on any land. Power is squarely conferred on the planning authority which in the present case is in the petitioner to grant or refuse such permission. Accordingly an application under section 44 for the purpose of permission to develop the said land described hereinbefore was made by respondents 2 to 6. But taking into consideration the fact that the Corporation itself has decided to develop the very land, the application came to be rejected by the planning authority.
12. This rejection of the application under section 44 were therefore the subject matter of the appeal as provided by section 47 of the Act before the Government. The Government was therefore called upon to examine the legality or otherwise of the order passed by the Corporation. The appeal before the State Government does squarely invoke the appellate jurisdiction of the State as conferred by section 47 of the Act. It is under the exercise of this jurisdiction that the impugned order is passed.
13. In our opinion the impugned order cannot be sustained for several reasons. It will be seen that the State Government exercising its power under section 47 of the Act is acting as quasi judicial authority deciding civil right of the parties before it. As a quasi judicial authority, it is duty bound on it to give a well reasoned order deciding the appeal under section 47. The impugned order Annexure-1 does not disclose any of the established Rules of application of mind by the appellate authority. There is no narration of facts giving rise to the appeal, the contentions of the rival parties are not noted, nor the question raised by the petitioner are considered as to the maintainability of the appeal or scope and extend of power under sections 44 and 47. Reasons why refusal of permission, under section 44 was improper have not been stated. In our opinion therefore the orders suffer from non-application of mind and on this ground alone it is liable to be set aside.
14. The order was sought to be defended by the respondents on the ground that the State Government has powers under section 154 of the Act to give directions to the planning authority and consequently it could give directions under section 154 and therefore order can be sustained as one, issuing directions of the kind contemplated by section 154. In other words the contention of the respondents that under this order allowing to give a direction under section 154 by the planning authority to drop the proceedings of acquisition is proper. The question as to whether such direction under section 154 could be issued or not after completion of entire preceding and payment of compensation was also not considered by the State. The question as to whether such direction under section 154 can be issued where an order under section 44 of the Act is made and that the order is appealable before the State.
15. The directions which can be issued under section 154 in our opinion are directions in relation to the development and planning. The powers under section 154 cannot be used to drop the acquisition proceedings. For doing so, specific provisions has been made in the Land Acquisition Act. This provision will have to be followed by the State before such direction is issued. There is nothing in Annexure-1 order dated 17-8-1996 to show that there is application of mind to any of these aspects by the State. The order therefore suffers from non-application of mind to the attending local provisions. It is therefore necessary to have a legal order. The petition therefore must succeed and the order dated 17-8-1996 is liable to be quashed.
16. However mere quashing of the order will not serve the purpose of either of the parties and several incurred rights will remain there unless the dispute raised by the respondents 2 to 6 under section 44 regarding development of this land is finally decided. The matter is therefore remitted back to the State for deciding the appeal under section 47 of the Act afresh in the light of the provisions of law as also the observations made hereinbefore. As valuable time has lost in this matter, we deem it fit and proper to issue directions regarding disposal of the appeal expeditiously by the State.
DIRECTIONS.
1) All parties concerned including the parties of this petition, shall appear before the State Government i.e. The Principal Secretary to the concerned department on 2nd of August, 2002 and request the Principal Secretary to take up adjudication of the appeal under section 47 as expeditiously as possible.
2) The State Government through the Principal Secretary to the concerned department is requested to decide and dispose of the appeal within three months from 2nd August, 2002 as development of road widening and car parking is stalled for the last more than 14 years.
3) Parties shall co-operate with the State in getting the matter disposed of expeditiously.
4) The State Government shall decide only the appeal under section 47 as lodged before it by the respondents 2 to 6 strictly in accordance with the provisions of the Act and decide the correctness of the order passed by the petitioner refusing permission of development under section 44 of the Act to respondents 2 to 6.
Parties to act on the authenticated copy of this order.