MAIDAN BACCHAV SAMITI AND ORS. vs. RAMCHANDRA PADMAKAR VAIDYA HALL TRUST AND ORS.

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srp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION/PIL NO. 4642 OF 2005
1. Maidan Bacchav Samiti, A Society registered ]
under the Society’s Registration Act Through ]
its President Shri Sachin Sridhar Chavan, ]
having address at Mahagiri, Koliwada, ]
Thane (W), 400 601. ]
2. Shri Madhukar Govind Koli, ]
Aged : 50 years, Occ: Business, ]
R/o Mahagiri, Koliwada, Thane 400 601. ]
3. Shri Milind Shantilal Patel, aged 36 years, ]
Occ: Business, R/o Mahagiri, Koliwada, ]
Thane 400 601. ]
4. Shri Milind Shantilal Patel, aged 36 years, ]
Occ: Business, R/o Mahagiri, Koliwada, ]
Thane 400 601. ] ... Petitioners
V/s
1. Ramchandra Padmakar Vaidya Hall Trust, ]
having Registration No.A-34-T, situated at ]
Kharkar Ali, Thane 400 601 – Through its ]
President, Shri Ashok Kotnis. ]
2. Shri Anand Waman Nadkarni, ]
R/o Block No.65, Sitaladevi Trust Building, ]
Lady Jamshedji Road, Mahim, Mumbai. ]
3. Shri Ashok Dwarkanath Pothnis, ]
R/o IInd Floor, R.M. Pride, Ram Maruti Road, ]
Above ICICI Bank, Thane. ]
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4. Shri Ramchandra Sitaram Satgare, ]
nd
R/o Hiradeep, 2 Floor, Block No.12, ]
Mental Hospital Road, Thane. ]
5. Shri Ravindra Gajanan Pradhan, ]
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6 Floor, Bldg. No.A, Flower Valley, Thane. ]
6. Shri Sanjay Mukund Kelkar, ]
st
Shram Saphalaya, 1 Floor, Aaram Road ]
Estate, Veer Savarkar Marg, Thane. ]
7. M/s.Ratnamani Developers Pvt. Ltd. ]
Through its Partners Shri Kanti M. Shah and ]
Shri Yogesh Kapasi, having office at ]
Sutravihar Co-op. Hsg. Society, Ram Murti ]
Road, Thane. ]
8. Municipal Corporation of the City of Thane, ]
By its Commissioner. ]
9. The Commissioner, ]
Municipal Corporatio of City of Thane. ]
10. The Asst. Charity Commissioner, ]
Thane Region, Thane. ]
11. The Asst. Director of Town Planning, ]
Thane Municipal Corporation, Thane. ]
12. The Secretary, ]
Urban Development Department, ]
Mantralaya, Mumbai. ]... Respondents
Mr. Shriram S. Kulkarni for Petitioners and for Applicants in Civil
Application No. 946 of 2010.
Mr. A.V. Anturkar with Sugandh B. Deshmukh for Respondent Nos.1
to 5 and Applicants in Civil Application No.517 of 2009.
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Mr. C.R. Sonawane, AGP and Mr. R.B. Behere, AGP, for Respondent
Nos.10, 12 and 13 – State.
Mr. R.S. Apte, senior advocate with Mr. Mandar Limaye for
Respondent Nos.8 and 9.
CORAM : MOHIT SHAH, C.J.
& S.J. VAZIFDAR, J.
Date of Reserving : TUESDAY, 15TH MARCH, 2011.
Date of Pronouncement : FRIDAY, 1ST APRIL, 2011.
ORAL JUDGMENT : [Per S.J. Vazifdar, J.]
1. Petitioner No.1 is a registered society which claims to be
established, inter-alia , for protecting open spaces in Thane City,
Maharashtra. Petitioner Nos.2 to 4 claim to have been using the suit
plot for sports, cultural and other activities. Respondent Nos. 2 to 6
are the trustees of respondent No.1. Respondent Nos.1 to 6 claim to
have entered into an agreement with respondent No.7 M/s. Ratnamani
Developers Pvt. Ltd. for the development of the land in question
which we will presume belongs to respondent No.1. Respondent Nos.
8 to 11 are the Municipal Corporation of the City of Thane, the
Commissioner of respondent No.8, the Assistant Charity
Commissioner, Thane Region, the Assistant Director of Town
Planning of respondent No.8 and the Secretary, Urban Development
Department, Mantralaya, Mumbai, respectively.
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2. The petitioners have filed this Public Interest Litigation, inter-
alia , for a Writ of Certiorari to quash the proceedings in respect of
change No.M/19 of the suit plot in the final Development Plan
th
published by the State Government in the Official Gazette on 4
October, 1999 and to restore the original user stipulated in the
Development Plan as submitted by the Planning Authority under
section 30(1) of the Maharashtra Regional & Town Planning Act,
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1966 (MRTP Act) for final sanction on 19 February, 1996. The
petitioners have also sought a Writ to quash and set aside an order
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dated 18 December, 2003, in M.A. No.80/03 passed by the Assistant
Charity Commissioner, respondent No.10, according permission to the
Trust to develop the property pursuant to an agreement with the
developer, respondent No.7.
3. Respondent No.8 – Thane Municipal Corporation (TMC) by a
nd
letter dated 2 July, 2004, responded to the queries raised by the
petitioners under the Right to Information Act. One Sanjay S.
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Deshmukh, an officer of TMC filed an affidavit dated 16 August,
2005, in this petition. One Hemant Ramdas Thakur working as a
Town Planner in the office of the Assistant Director of Town Planning
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filed an affidavit dated 20 October, 2005. The facts appearing in
these three documents are relevant for the purpose of considering the
petitioners case under the MRTP Act.
4(A) In the year 1974, the property was shown as open space in the
Development Plan.
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st
(B) The draft Development Plan published on 21 December, 1991,
showed the land to be in gaothan area.
The said Deshmukh’s affidavit states that in the draft
st
Development Plan of 21 December, 1991, the plot was “shown to
have been proposed to be reserved as open space.” This, however,
Mr.Apte, the learned senior counsel appearing on behalf of TMC,
states was a mistake. He relied upon Schedule I to the Government
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Notification dated 4 October, 1999. Under the column “Proposals as
per submitted Draft Development Plan under Section 30 of the MRTP
ACT, 1966”, it is stated as follows in respect of the said plot:-
“Existing open space situated on North-East side of Site
No.13.” “Extension to school.”
The said Thakur’s affidavit states that in this plan, the land was
“designated” as an “existing entertainment use”. During the hearing
and in the written submission on behalf of the Assistant Town Planner,
it is stated that the land was shown as “Existing Recreational use”.
There is no affidavit filed by either the said Deshmukh or the
said Thakur stating that there was any error in their respective
th
affidavits. The 4 October, 1999 Notification relied upon by the
respondents in this regard is under challenge in this Writ Petition.
Further, even if we were to presume Mr. Apte’s submission to be
correct the plot was, even according to him, shown as an “existing
open space”.
th
5. The reply to the RTI query states that on 6 October, 1994, the
revised draft Development Plan was published wherein “Existing
entertainment/recreation user” was shown in respect of the said plot
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which was recommended to be included by change No.22 in
congested area. The reply also stated that when the draft Development
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Plan was re-published on 15 January, 1996, the existing user was
shown for entertainment and the area was recommended for including
the same in congested area vide change No.23.
The reply further states that the same position continued while
submitting the revised draft Development Plan for final sanction
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under section 30(1) on 19 February, 1996.
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6, Pausing here, it must be noted that by an application dated 10
April, 1997, made to the Ministry of Urban Development, respondent
No.1 requested for a change in user in respect of the said land.
7. This brings us to the main controversy in the petition viz., to the
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sanctioned revised Development Plan dated 4 October, 1999. The
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Urban Development Department, by the Notification dated 4
October, 1999, in exercise of powers under section 31(1) of the MRTP
Act sanctioned the said draft Development Plan. The Notification
stated that some of the modifications proposed to be made by the State
Government, included in Schedule II thereto, were of a substantial
nature requiring re-publication under section 31. The modification
further stated as under:-
“Now, therefore, in exercise of the powers conferred by
sub-section (1) of section 31 of the said Act and all other
powers enabling it in that behalf of the Government of
Maharashtra hereby sanctions the said Draft
Development Plan, excluding the areas under
modifications, which are of substantial nature mentioned
in schedule-II and shown on plan in Orange Colour
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verged and marked as Excluding Portion E.P.1 To E.P.
256 on the plan submitted by the said Corporation, with
certain modifications made by Government which are not
considered to be of substantial nature are shown in
Orange Colour on said Draft Development Plan, and as
described in schedule-1 appended to this notification and
fixes 22 November 1999 to be date on which the said
Development Plan shall come into force.”
th
The first respondent’s application dated 10 April, 1997, for
change of user, was apparently granted. The authorities, however, did
not consider the modification to be substantial and, therefore, included
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it in Schedule I to the Notification dated 4 October, 199 at Sr. No.19
which reads as under:-
“SCHEDULE I
SECTOR No.1

8. There were protests from the public and residents of the locality
including sports organizations about the change in user/modification.
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The petitioners’ contention is that the modification was granted
without following the procedure under section 31 of the MRTP Act,
requiring re-publication as in the case of a substantial modification.
The State Government did not consider the modification to be a
substantial one warranting the same.
9. Mr. Kulkarni, the learned counsel appearing on behalf of the
petitioners submitted that the said modification was a substantial one
which required the authorities to follow the mandatory provisions of
section 31 requiring re-publication. The State Government and the
authorities were not entitled to exercise power on their own while
granting the modification. Mr. Anturkar, the learned counsel appearing
on behalf of respondent Nos.1 to 5 contended that the modification
was not a substantial one and that, therefore, the State Government
was entitled to consider it on its own without re-publishing the same
inviting objections. The learned counsel for the respondent authorities
supported Mr. Anturkar.
10. Section 31 of the MRTP Act reads as under:-
“ 31. Sanction to draft Development plan .- (1) Subject
to the provisions of this section, and not latter than one
year from 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 modifications as
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it may consider proper, or return the draft Development
plan to the Planning Authority or as the case may be, the
said Officer for modifying the plan 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 may, 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 objections 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 objections and
suggestions and submit his report thereto 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 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.
(5) 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
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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.”
Thus, under section 31, the State Government is entitled, inter-
alia , to sanction the draft Development Plan submitted to it subject to
such modifications as it may consider proper. Under the third proviso,
however, 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 the local
newspapers inviting objections and suggestions from any person in
respect of the proposed modifications within a period of 60 days from
the date of such notice.
11. The Notice, as contemplated under the third proviso to section
31 was admittedly not published. It was not disputed that the
provision is mandatory. The respondent’s only contention is that the
said modification is not of a substantial nature.
12. The modification is undoubtedly a substantial one. It can
hardly be suggested that a change of the user of land from open space
to a residential zone requiring only 33% to be kept open is not a
substantial modification. Mr. Anturkar, however, submitted that the
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MRTP Act defines a substantial modification; the said modification
does not fall within the definition and that, therefore, the said
modification is not a substantial modification within the meaning of
the MRTP Act.
We will presume for the purpose of this petition that the said
land belongs to respondent No.1 and that Schedule I under the first
column we have reproduced qua the said land merely indicates the
location of the open space and that the same has nothing to do with
the school. We will also presume that the use of the land, albeit for
several decades by the members of the public, does not affect the first
respondent’s ownership thereof. In other words, the first respondent
merely permitted persons to use the property for sports and other
activities. It was a mere permissive user. For the purpose of this Writ
Petition, this is immaterial. The only question is whether the change
is a substantial modification, thereby requiring the authorities to
follow the mandatory provision under section 31 or whether it was not
a substantial modification, thereby entitling the State Government to
consider and allow the same without republishing the proposed
modification.
13. Mr. Anturkar submitted that the said modification is not of a
substantial nature as it does not fall within section 22A(c) of the
MRTP Act. Section 2(2) and section 22A of the MRTP Act read as
under:-
“2. Definitions. - In this Act, unless the context requires,-
(1) ..........
(2) “amenity” means roads, streets, open spaces,
parks, recreational grounds, play grounds, sports
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complex, parade grounds, gardens, markets, parking lots,
primary and secondary schools and colleges and
polytechnics, clinics, dispensaries and hospitals, water
supply, electricity supply, street lighting, sewerage,
drainage, public works and includes other utilities,
services and conveniences;”
..................................
22A. Modification of a substantial nature .- In section
29 or 31, the expression “of a substantial nature” used in
relation to the modifications made by the Planning
Authority or the officer appointed by the State
Government under sub-section (4) of section 21
(hereinafter referred to as “the said Officer”) or the State
Government, as the case may be, in the draft
Development Plan means,-
(a) reduction of more than fifty per cent., or increase
by ten per cent., in area of reservations provided for in
clauses (b) to (i) of section 22, in each planning unit or
sector of a draft Development Plan, in sites admeasuring
more than 0.4 hectare in the Municipal corporation area
and `A’ class Municipal area and 1.00 hectare in `B’
Class and `C’ Class Municipal areas;
(b) all changes which result in the aggregate to a
reduction of any public amenity by more than ten per
cent. of the area provided in the planning unit or sector in
a draft Development Plan prepared and published under
section 26 or published with modifications under section
29 or 31, as the case may be;
(c) reduction in an area of an actually existing site
reserved for a public amenity except for marginal area
upto two hundred square metres required for essential
public amenity or utility services;
(d) change in the proposal of allocating the use of
certain lands from one zone to any other zone provided
by clause (a) of section 22 which results in increasing the
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area in that other zone by ten per cent in the same
planning unit or sector in a draft Development Plan
prepared and published under section 26 or published
with modifications under section 29 or 31, as the case
may be;
(e) any new reservation made in a draft Development
Plan which is not earlier published under section 26, 29
or 31, as the case may be;
(f) alternations in the Floor Space Index beyond ten
per cent of the Floor Space Index prescribed in the
Development Control Regulations prepared and
published under section 26 or published with
modifications under section 29 or 31, as the case may
be.]”
Mr. Anturkar contended that each word in the expression
“a ctually existing site reserved for public amenity ” in section 22A(c)
is important. According to him, the section requires that there should
be an actually existing site, that the same must be reserved and that
the reservation must be for a public amenity.
14. The said plot is an actually existing site and it falls within the
Development Plan.
15. The next question is whether the plot was reserved. Mr.
Anturkar submitted that there is nothing in the plan that indicates that
the plot was reserved. Mr. Anturkar submitted that the plot was not
“reserved” for any purpose. In the Development Plan, certain areas are
to be kept open. In this case, the Development Plan only directs the
plot to be kept open but does not reserve it for any purpose.
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According to him the said plot was only “designated” and not
reserved as an existing open area. He submitted that the MRTP Act
uses the words “allocating”, “designation” and “reservation” each of
which must be given a separate and distinct meaning. In this regard,
he placed considerable reliance upon section 22 of the MRTP Act
which reads as under:-
“22. Contents of Development Plan .- A Development
plan shall generally indicate the manner in which the use
of land in the area of the Planning Authority shall be
regulated, and also indicate the manner in which the
development of land therein shall be carried out. In
particular, it shall provide so far as may be necessary for
all or any of the following matters, that is to say,-
(a) proposals for allocating the use of land for
purposes, such as residential, industrial, commercial
agricultural, recreational;
(b) proposals for designation of land for public
purpose, such as schools, colleges and other educational
institutions, medical and public health institutions,
markets, social welfare and cultural institutions, theatres
and places for public entertainment, or public assembly,
museums, art galleries, religious buildings and
government and other public buildings as may from time
to time be approved by the State Government;
(c) proposals for designation of areas for open spaces,
playgrounds, stadia, zoological gardens, green belts,
nature reserves, sanctuaries and diaries;
(d) transports and communications, such as roads,
high-ways, park-ways, railways, water-ways, canals and
airports, including their extension and development;
(e) water supply, drainage, sewerage, sewage disposal,
other public utilities, amenities and services including
electricity and gas;
(f) reservation of land for community facilities and
services;
(g) proposals for designation of sites for service
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industries, industrial estates and any other development
on an extensive scale;
(h) preservation, conservation and development of
areas of natural scenary and landscape;
(i) preservation of features, structures or places of
historical, natural, architectural and scientific interest and
educational value [and of heritage buildings and heritage
precincts];
(j) proposals for flood control and prevention of river
pollution;
(k) proposals of the Central Government, a State
Government, Planning Authority or public utility
undertaking or any other authority established by law for
designation of land as subject to acquisition for public
purpose or as specified in a Development plan, having
regard to the provisions of section 14 or for development
or for securing use of the land in the manner provided by
or under this Act;
(l) the filling up or reclamation of low lying, swampy
or unhealthy areas, or levelling up of land;
(m) provisions for permission to be granted for
controlling and regulating the use and development of
land within the jurisdiction of a local authority including
imposition of conditions and restrictions in regard to the
open space to be maintained about buildings, the
percentage of building area for a plot, the location,
number, size, height, number of storeys and character of
buildings and density of population allowed in a
specified area, the use and purpose to which buildings or
specified areas of land may or may not be appropriated,
the sub-division of plots the discontinuance of
objectionable users of land in any area in reasonable
periods, parking space and loading and unloading space
for any building and the sizes of projections and
advertisement signs and hoardings and other matters as
may be considered necessary for carrying out the objects
of this Act.”
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Mr. Anturkar emphasized the fact that the words “allocating”,
“designation” and “reservation” are used in different sub-clauses
indicating thereby that the Legislature intended giving each of them a
different meaning. Thus, he submitted, the question of a substantial
modification under section 22A(c) can arise only if there is a
“reservation” of a site.
16. The submission is not well founded. We agree with Mr.
Kulkarni that the words “allocating”, “designation” and “reservation”
are interchangeable and that the ambit of each of the words is the
same. The provisions of the Act themselves support Mr. Kulkarni’s
submission.
17. Section 22A(a) refers to area of reservations provided for in
clauses (b) to (i) of section 22. Only clause (f) of section 22 refers to
reservation of land. The other clauses viz. (b) to (e) and (g) to (i) do
not refer to reservations. Clauses (b), (c) and (g) refer to designation
of areas, sites and land. Clauses (d), (e), (h) and (i) do not refer to the
terms “allocating”, “designation” or “reservation”. Thus the term
“reservation” in section 22A(a) refers not merely to “reservation”, but
also to the terms “allocating” and “designation”.
18. 24. Section 113(1) of the Act reads as under:-
“ 113. Designation of site for new town .- (1) If the State
Government is satisfied that it is expedient in the public
interest that any area should be developed as a site for a
new town as reserved or designated [in any draft or final
Regional Plan] it may, by notification in the Official
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Gazette , designate that area as a site for the proposed
new town. The new town shall be known by the name
specified in the notification.”
Whereas, in the first part of the first sentence, the words
“reserved” or “designated” are used, the second part of the same
sentence only uses the word “designate” indicating thereby that the
term “designate” is also used in respect of a reservation indicating that
the terms are interchangeable.
19. It is true that in some provisions, such as section 50, all the
terms are used. Normally, this would indicate an intention to ascribe a
different meaning to each of them. However, considering the manner
in which the terms have been used in the Act, it appears that they are
interchangeable.
20. Mr. Anturkar submitted that the Act uses the word
“designation” to mean that the user is for the purpose for which it is
designated and nothing more. In other words, once a property is
designated for a particular purpose, the owner thereof can use it only
for that purpose. According to Mr. Anturkar, the term `designation’ is
used only to restrict the nature of use of the land by private owners.
Further, according to him, the designation of lands does not constitute
reservation entitling the Government to acquire the same under the
provisions of section 126 of the said Act.
21. This is not so. Section 22(b) refers to proposals for designation
of land, inter-alia , for public health institutions, places for public
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entertainment and Government and other public buildings. Proposals
for designation of land therefore are not only with respect to private
lands.
22. Mr. Anturkar submitted that only plots which are reserved in a
Development Plan may be acquired by the State Government in
exercise of powers under section 126 of the said Act. According to
him, properties which are merely designated cannot be acquired. The
purpose of designating private plots is, according to him, as noted
earlier, only for the purpose of indicating the nature of user by the
private owner.
23. The submission is, in fact, contrary to section 50 of the Act
which reads as under:-
“ 50. Deletion of reservation of designated land for
interim draft of final Development plan .- (1) The
Appropriate Authority [(other than the Planning
Authority)], if it is satisfied that the land is not or no
longer required for the public purpose for which it is
designated or reserved or allocated in the interim of draft
Development plan or plans for the area of
Comprehensive development or the final Development
plan, may request -
(a) the Planning Authority to sanction the
deletion of such designation or reservation or
allocation from the interim or the draft
Development plan or plans for the area of
Comprehensive development, or
(b) the State Government to sanction the
deletion of such designation or reservation or
allocation from the final Development plan.
(2) On receipt of such request from the Appropriate
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Authority, the Planning Authority, or as the case may be,
the State Government may make an order sanctioning the
deletion of such designation or reservation or allocation
from the relevant plan:
Provided that, the Planning Authority, or as the
case may be, the State Government may, before making
any order, make such enquiry as it may consider
necessary and satisfy itself that such reservation or
designation or allocation is no longer necessary in the
public interest.
(3) Upon an order under sub-section (2) being made,
the land shall be deemed to be released from such
designation, reservation, or as the case may be, allocation
and shall become available to the owner for the purpose
of development as otherwise permissible in the case of
adjacent land, under the relevant plan.”
The section indicates that plots are also designated for public
purpose and designation is not only of private plots.
24. Section 125 does not support Mr. Anturkar’s submission.
Section 125 reads as under:-
“ 125. Compulsory acquisition of land needed for
purposes of Regional Plan, Development plan or town
planning scheme, etc .- Any land required, reserved or
designated in a Regional Plan, Development plan or
town planning scheme for a public purpose or purposes
including plans for any area of comprehensive
development or for any new town shall be deemed to be
land needed for a public purpose within the meaning of
the Land Acquisition Act, 1894 (I of 1894).”
25. Section 125 is only a deeming provision to the effect that when
land which is required, reserved or designated, inter-alia , in a
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Development Plan is sought to be acquired, it shall be deemed to be
land needed for a public purpose within the meaning of the Land
Acquisition Act. The section is of no assistance in determining the
question whether the terms are interchangeable or not.
26. The submission is also contrary to section 127 which deals with
lapsing of reservation. The section provides that:- “ if any land
reserved, allotted or designated for any purpose specified in any plan
under this Act is not acquired by agreement” or if proceedings for
acquisition of such land under the Land Acquisition Act are not
commenced within the stipulated period, the owner or any person
interested in the land may serve a notice upon the appropriate
authority to that effect and if within 6 months from the date of service
of such notice, the land is not acquired or steps are not taken for its
acquisition, the reservation, allotment or designation shall be deemed
to have lapsed and thereupon the land shall be deemed to be released
from such reservation, allotment or designation and shall become
available to the owner for the purpose of development as otherwise
permissible in the case of adjacent land under the relevant plan.
The section, therefore, makes it clear that lands which are either
reserved, allotted or designated may be acquired. In other words, it is
not only lands which are shown to be reserved under the Development
Plan, which may be acquired under the Act.
27. Our attention was not invited to any part of the Act
which makes separate provisions for lands which are allotted, reserved
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21 ASPIL4642.05
and designated. The Act deals with the same in an identical manner.
28. Mr. Kulkarni’s reliance upon a judgment of a Division Bench of
the Gujarat High Court in Palitana Sugar Mill Pvt. Ltd. v. State of
Gujarat (2001) 4 GLR 3048 , is well founded. The judgment dealt
with the provisions of the Gujarat Town Planning & Urban
Development Act, 1976. However, as regards the present question,
the provisions of the two Acts are similar. In paragraph 46, Chief
Justice D.M. Dharmadhikari (as His Lordship then was) speaking for
the Division Bench held :-
“ 46 . Since under Section 20 there is reference to
specific clauses (b), (d), (f), (k) and (o) of subsection (2)
of Section 12 and in Section 12 both the expressions
`designation’ and `reservation’ are used, in our opinion,
in the expression `designation’ shall be deemed to have
lapsed under subsection (2) would include `reservation’
to have lapsed as well. The two words `designation’ and
`reservation’ seem to be interchangeable for the purpose
of the Act. This is so because clauses (b), (f) and (k) in
subsection (2) uses the expression `proposals for
reservation’ whereas clauses (e), (n) and (o) do not use
the word either `reservation’ or `designation’, but, only
makes a mention of proposals for specific public
purposes. All the above mentioned clauses containing
use of expression `reservation’ or omission of it find
mention in subsection (1) of Section 20 to which
subsection (2) of Section 20 is made applicable
specifically by mention of entire subsection (1) in
opening part of subsection (2) to enable the authorities to
acquire the land both `reserved’ or `designated’ within a
period of ten years or within six months of service of
notice by the land owner or person interested. The
automatic result of service of notice is failure of the
authorities in taking steps to acquire the land and is
lapsing of designation or reservation of land affected by
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the Act.” (emphasis supplied)
29. An appeal against the judgment was dismissed by the Supreme
Court in Bhavnagar University v. Palitana Sugar Mills, (P) Ltd.
(2003) 2 SCC 111 . This aspect was, however, not dealt with in the
judgment.
30. Mr. Anturkar submitted that the above observations are only
orbiter as it was not necessary for the Division Bench to consider the
same. We do not agree. The Division Bench analyzed several
provisions of the Act, including sections 12 and 20 thereof. Indeed,
whether the observations are orbiter or not matters little for even if
they were not orbiter, we are not bound by the judgment. We are,
however, in respectful agreement with the reasoning adopted by the
Division Bench of the Gujarat High Court.
31. Mr. Anturkar lastly submitted that in any event, in the present
case, the provisions of section 22A(c) do not apply as the reservation
was not for a public amenity. He stated that the plot belongs only to
the first respondent-Trust and cannot be used by the public as a play-
ground.
32. Even assuming for the sake of argument that the members of
the public are not entitled to use the plot being owned by the Trust as
a matter of right as on date, it would make no difference to this
petition. Even according to the respondents, it has been shown as an
open plot in the draft Development Plan. If we are right in holding
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23 ASPIL4642.05
that the terms “allocating”, “reserved” and “designation” are
interchangeable, it matters not whether in the draft Development Plan,
the land was shown to be allotted, designated or reserved. If this
“allocation”, “reservation” or “designation” is for a public amenity,
the case falls within section 22A(c). It is not necessary, as suggested
by Mr. Anturkar, that the plot to fall within section 22A(c) must be
actually in use for such public amenity on the date of the
Development Plan. If Mr. Anturkar’s submission was correct, the
word or words in section 22A(c) would have been “utilized” or “being
utilized” or “used” instead of “reserved”. A Development Plan also
provides for the future use of land. It is subject to acquisition under
the provisions of the Act. Upon such acquisition, the
Government/authorities would be entitled to use/retain it as a public
amenity. Open spaces falls within the definition of “amenity” under
section 2(2). There is no reason we are able to gather for the plot
being shown in the Development Plan as an existing open space or for
recreational or entertainment purpose other than for the purpose of the
reservation or allocation or designation thereof for using it as a public
amenity.
33. In the circumstances, it was necessary for the concerned
respondents to follow the provisions of section 31(1) of the said Act.
They admittedly did not do so. The impugned modification is,
therefore, liable to be quashed.
34. In this view of the matter, it is not necessary for us to consider
Mr. Kulkarni’s submission that there is no rationale for the
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24 ASPIL4642.05
modification. He relied upon the judgment of the Supreme Court in
Bangalore Medical Trust v. B. S.Mudappa & Ors., AIR 1991 SC 1902 .
Nor have we considered the challenge to the order of the Assistant
Charity Commissioner. The petitioners are at liberty to raise the issue
in future, if necessary.
35. In the result, Rule is made absolute in terms of prayer (b),
which reads as under :-
“(b) This Hon’ble Court be pleased to issue a Writ of
Certiorari or writ in the nature of Certiorari, or any other
appropriate writ, order or direction calling for the record
and proceedings in respect of Change No.M/19 of suit
plot in the Final Development Plan published by the
State Government in the Official Gazette on 04.10.1998,
and after examining the legality, validity and propriety of
the same, further be pleased to quash and set aside the
same, and to restore the original user in the Development
Plan as submitted by the Planning Authority under
Section 30(1) of the Maharashtra Regional Town
Planning Act, 1966 for final sanction on 19.02.1996.”
However, there shall be no order as to costs.
CHIEF JUSTICE
S.J. VAZIFDAR, J.
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