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CASE NO.: Appeal (civil)  8274-8275 of 2003

PETITIONER: Raju S. Jethmalani & Ors.

RESPONDENT: State of Maharashtra & Ors.

DATE OF JUDGMENT: 05/05/2005

BENCH: ASHOK  BHAN & A.K. MATHUR

JUDGMENT: J U D G M E N T  

A.K. MATHUR, J.

               These appeals are  directed against  orders passed by  learned Division Bench of the High Court of Bombay dated  September 4, 1997 and September 8, 1999.

               Initially a writ petition was filed before the  High Court of  Bombay by way of public interest litigation by the residents of  Salisbury park and persons living around that area challenging the  notification dated February 12, 1993 whereby an area admeasuring  1.50 acres of land was de-reserved from plot No.438   of Salisbury  Park within the Municipal limits of Pune which was reserved as a  garden in the development plan. In order to promote ecology and to  have congenial environment, a development plan was prepared on  August 15, 1986 for Pune city under  the erstwhile provisions of the  Bombay Town Planning Act, 1954 and that development plan was  carried out under the Maharashtra Regional and Town Planning Act,  1966 ( hereinafter to be referred to as the "1966 Act" ) where under  on September 18, 1982 a draft development plan was published by  the Municipal Corporation of Pune purported to be under Section  26(1) of the1966 Act. In that development plan Plot Nos. 437 & 438   were earmarked for the purposes of park and garden.  This draft  development plan was ultimately finalized and sanctioned on January  5, 1987. The present controversy centres around Plot No.438 and  this plot originally belonged to respondent No.3. She did not object to  the reservation of the plot for the garden. In December 1986, this plot  was purchased by respondent Nos.4 to 10  in the writ petition   (appellants herein)  at a throw away price. These respondent Nos. 4  to 10 then initiated a proposal for de-reserving this plot before the  Government.  Government of Maharashtra after hearing the Planning  authority  and on receiving report from the Municipal Corporation of  Pune that they are not in a position to acquire this plot of land for  garden , de-reserved the plot  by the aforesaid impugned notification.  This was challenged by a public interest litigation contending that  once the land is earmarked  for a particular purpose, namely to  promote environmental exigencies, the same cannot be de-reserved  to defeat the public purpose. Heavy reliance was placed on a  decision of this Court in the case of  Bangalore Medical Trust vs.  B.S.Muddappa & Ors. reported in (1991) 4 SCC 54.  As against this,  learned counsel appearing for the Municipal Corporation of Pune  submitted that the proposal for de-reservation was mooted by the  Corporation at the behest  and on the dictate of the State  Government and it was also pointed out that the Municipal  Corporation of Pune had no financial resources to acquire the  aforesaid land.  It was also submitted that the decision rendered by  this Court in the case of Bangalore Medical Trust (supra) cannot be of

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any assistance to the present controversy as the provisions of the  Bangalore Development Authority Act, 1976 are not pari materia with  that of the provisions of the Maharashtra Regional and Town  Planning Act, 1966. It was further pointed out that Section 38-A of the  Bangalore Development Authority Act, 1976 creates a complete  prohibition for the authority from selling or otherwise disposing of any  area reserved for the public parks and play grounds.  In this  background the Division Bench of the Bombay High Court after  hearing arguments came to the conclusion that an equitable device   can be worked out so as to serve the interest of public in general as  well as  safeguard the interest of the owners of the plot by putting  certain conditions. A proposal was also mooted  that  an alternative  plot adjacent and suitable  be  provided for the same purpose as  envisaged in the final development plan i.e.  park and garden  and  possibility may be explored that such a land  is available in the vicinity  which will serve the purpose. But no such land could be found in the  vicinity for the aforesaid purpose. However, finally the High Court  thought of  settlement that the notification be quashed but it deferred  it for a period of two years and within this period  the respondent Nos.  4 to 10 (appellants herein) provide necessary  area, approximate in  size, suitable for the purposes of garden and park as envisaged in the  Development Plan  to the satisfaction of the Planning authority. In  case of failure, the impugned notification shall stand quashed and set  aside.  After that  an application seeking clarification of the earlier  order was moved before the High Court. Therein it was contended  that in the order dated September 4, 1997  it was not indicated that  how  the applicants should offer piece of land for the purpose of park  and garden  in the same vicinity where the plot in question is situated.  This application was  dismissed by the Division Bench of the High  Court and it was observed that the order dated September 4, 1997 is  clear and does not call for any clarification as prayed for by the  applicants.  It was also observed that the order dated September 4,  1997 was not challenged during the last two years by the applicants.  Therefore, on the expiry of the period of two years, the order passed  by the Court quashing the notification dated February 12, 1993  became operative and Municipal Corporation of Pune was directed to  proceed accordingly. Aggrieved against both these orders i.e. order  dated September 4, 1997 and order dated September 8, 1999 the  present Special Leave Petitions were filed. Leave was granted and  these appeals were argued at some length before a Bench on  November 9, 2000  and the matters were adjourned at the request of  the parties to sit together and consider the terms on which a  settlement could be arrived at between the parties,  again on August  16, 2001  parties sought time   for some agreed solution of the issue.  When the matters again came up before this Bench and it was  mooted out that some solution  could be worked out but it could not  be worked out and this is how these appeals have come up for final  disposal before us.

       The Plot No.438 measuring 1.50 acres of land has a sub-plot  1  to 9. Construction  has already been completed on sub-plot Nos.4,5,6  & 7. The dispute is with regard to sub-plot Nos.1,2,3 and 8 & 9 on the  plot.  Sub-plot Nos.1,2,& 3 are on  one side of the  road and sub-plot  Nos.8 & 9 are on the other side of the road. It was also pointed out  that adjacent plot No.437 measuring 2.00 acres was acquired and a  garden was developed.  It was not disputed that Plot No.438 was  earmarked as garden in the development plan in 1966 but it   was not  acquired and it remained a  private  property. It is true that when it  was shown as a garden in the draft development plan no objection  was raised and final notification declaring this land as earmarked for  garden  was published. It is true that a Development Plan can be  prepared of a land comprising of a private person but that plan cannot  be implemented  till the land belonging to the private person is  acquired by the Planning authority. It is not that the Planning authority  was ignorant of this fact. It acquired some land from  Plot No.437 for

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developing garden but the land from  plot No.438 was not  acquired  for garden. Therefore, the question is whether the Government can  prepare a development plan and deprive the owner of the land from  using that land ? There is no prohibition of including private land in a  development plan but no development can be made on that land  unless that private land is acquired for development. The  Government cannot deprive the persons from using their private  property.  We quite appreciate the  interest of the residents of that  area that for the benefit of the ecology, certain areas should be  earmarked for garden and park so as to provide fresh air to the  residents of that locality. In order to provide such amenities to the  residents of the area   private land can be acquired in order to  effectuate their public purpose but without acquiring the private land  the Government cannot deprive the owner of the land from using that  land for residential purpose. In the present case, it is clear that Plot  No.438 belonged to the private person and it was shown as a garden  in the development plan of 1966.  But no effort was made by the  Municipal Corporation  or the Government  to acquire this plot for the  purpose of developing it as a garden. When it was not acquired for  the purpose of garden,  the owner of this land i.e. the appellants  moved the Government for de-reserving  this land and the  Government after resorting to necessary formalities de-reserved the  land by the impugned notification.  All the procedures which were  required under the 1966 Act were observed, the notification was  issued inviting objections against de-reservation. No objection was  filed by the residents of the area and ultimately a proposal was put up  before the Municipal Council  it also resolved that  Municipal Council  is not in a position to acquire the land because of the financial crunch  and accordingly, the Government was intimated. Government   accordingly de-reserved it and consequently, issued the impugned  notification dated February 12, 1993. When  finally the notification  came to be published on February 12, 1993 the residents of the area  woke up and brought about this public interest litigation. Section 37 of  the 1966 Act empowers the Government for modification of the final  development plan. It lays down that where a modification of any part  of or any proposal made in a final Development plan is of such a  nature that it will not change the character of such Development plan,   the Planning Authority may or when so directed by the State  Government shall within sixty days from the date of such direction,  publish a notice in the Official Gazette and in such other manner as  may be determined by  inviting objections and suggestions from any  person with respect to the proposed modification not later than one  month from the date of such notice and shall also serve notice on all  persons affected by the proposed modification and after giving a  hearing to any such persons, submit the proposed modification with  amendments if any, to the State Government for sanction and if the  Planning authority fails to issue the notice as directed by the State  Government, the State Government shall issue the notice, and  thereafter modification can be issued by the State Government.  Therefore, all the formalities required under the law were complied  with by the authorities.  In fact, the public spirited persons who have  filed the public interest litigation did not file any objection to the  proposed de-reservation of the area. The High Court after hearing  both the parties felt persuaded  because of the decision rendered  by  this Court in the case of Bangalore Medical Trust (supra). But with  great respect the Division Bench of the High Court of Bombay did not  examine the matter very closely   whether the provisions of the  Bangalore Development Authority Act, 1976 and that of the  Maharashtra Regional and Town Planning Act, 1966 are pari materia  or not. In the case of Bangalore Medical Trust, the open space  reserved for park under the development scheme was converted in to  a Hospital in favour of a private body by the Development authority at  the instance of the Chief Minister of the State.  Therefore, this Court  examined the provisions of the Bangalore Development Authority Act,  1976 and after considering all those provisions, this Court  held that

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this unilateral act of  the Bangalore Development Authority at the  instance of the Chief Minister of the State cannot be countenanced.  In that case, the area  was reserved for park and play-ground.  Section 38-A of the Bangalore Development Authority Act, 1976  specifically prohibited that  the authority shall not sell or otherwise  dispose of  any area reserved for public parks and playgrounds and  civic amenities for any other purpose and any disposition so made  shall be null and void. Firstly, there is no such provision under the  Maharashtra Regional and Town Planning Act, 1966 and secondly,  the area which is earmarked for the purpose of park and playground  was not owned by a private person.  In the present case, though the  development plan  has been prepared in the year 1966 and the area  has been earmarked for the purpose of garden but no proceeding for  acquisition of the present plot was  ever initiated  by the respondent-  Municipal Corporation or by the State Government. There is no  prohibition for preparing the development plan comprising of private  land but that plan cannot be implemented unless the said private land  is acquired by the Government for development purpose. In the  present case, the area comprising in the plot No.438 belonged to the  appellants and that no steps were taken to acquire  the said land by  the State Government or by the Municipal Corporation of Pune and  the Municipal Corporation had already expressed their inability to  acquire that land  and therefore, the said land has been de-reserved  by the State Government.  Therefore, the present case has no  semblance  with that of the Bangalore Medical Trust case (supra).   The question is whether without acquiring the land can the  Government deprive a person of his use of the land ? This in our  opinion, cannot be done. It would have been possible for the  Municipal Corporation and the Government of Maharashtra to acquire  the land in order to provide civic amenities. But the land in question  has not been acquired. We are quite conscious of the fact that the  open park and garden are necessary  for  the residents of the area.  But at the same time we cannot loose sight of the fact that a citizen is  deprived of his rights without following proper procedure of law. The  period of deferring the quashing of the de-reservation notification for   two years  by the High Court was perhaps to allow the Government or  the Municipal Corporation of Pune to muster up  funds so as to  acquire the same.  But  earnest hope was frustrated  when no step  was taken by the Municipal Corporation. The direction given by the  High Court of Bombay that within this period  if the respondents ( the  present appellants ) provide  necessary area, approximate in size,  suitable for the purposes of garden and park as envisaged in the  Development plan  to the satisfaction of the Planning authority,   quashing and setting aside of the impugned notification will not be  operative. We fail to understand how can  the burden be placed on  the appellants that they should provide  suitable area in the  present  locality for using the same as garden or park. Rather, the burden  should have been placed on the Municipal Corporation or the State  Government instead of putting it on the appellants that they must  provide some space for garden and park.  This direction, in our  opinion, appears to be wholly misconceived and we set aside the  impugned order of the Division Bench. Unfortunately, this direction  was reaffirmed by subsequent order passed on the  clarification  application  dated September 8, 1999 by the  Division Bench and the  Division Bench has observed that since the period of two years  has  already expired,  therefore, the notification stood quashed  and the  Municipal Corporation can proceed in the matter. Since we felt  persuaded to set aside   the direction given  on September 4, 1997   by the High Court putting the burden on the appellants, therefore,  the  subsequent order passed by the Division Bench on September 8,  1999 also cannot be sustained.  In this connection, our attention was  invited to a recent decision of this Court in the case of  Balakrishna  H.Sawant & Ors. vs. Sangli, Miraj & Kupwad  City Municipal  Corporation & Ors. reported in 2005 (2) SCALE 420 wherein  under  the identical situation under the Maharashtra Regional and Town

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Planning Act, 1966,  this Court quashed the reservation in respect of  the land owned by private person.  In that case  final development  plan was published reserving land for a High School and play ground   owned by the private person. The grievance of the appellant was that  the State had not taken any steps to acquire the land within the  stipulated statutory period, therefore, the reservation had lapsed.   The State Government also admitted that the reservation had lapsed  and  it had no power to condone the delay. However, the High Court  took the view that  since the Corporation has taken appropriate steps  to acquire the land in question so as to give effect to the reservation,  the same cannot be said to have lapsed. The matter came up before  this Court by way of Special Leave petition. The respondent- Corporation took the stand that the Corporation has no money  for the  construction of the High School and play ground and therefore, the  Corporation does not need the subject land. In this background, this  Court set aside the order of the High Court and quashed the  reservation in respect of the land in question owned by the appellant   and allowed the appeal. Similar is the position in this case also. Since  the Government and the Municipal Corporation expressed their  inability to acquire the land because of lack of funds,  the appellants  cannot be deprived of the use of the land. Therefore, the view taken  by the High Court  by the orders dated September 4, 1997 &  September 8, 1999 cannot be sustained & both are liable to be  set  aside.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 

       However, before parting with the case we may observe that we  tried to explore the possibility  if the Municipal Corporation is still  prepared to acquire the land  then even at this point of time we can  permit them to acquire the land keeping in view  the larger interest of  ecology and for the amenities to the public of that locality. But learned  counsel for the Municipal  Corporation  expressed    inability   of the  Corporation  and likewise  learned counsel for the State of  Maharashtra.  We also asked the counsel for the private respondents   if they can muster sufficient funds so as to enable the Municipal  Corporation to acquire the land in question but learned counsel for  the respondents expressed their inability to do so.  Be that as it may,  still we keep it open. In case within six months if the residents of the  locality can raise funds for acquisition of  the land by the Government,  then it will be open for them to keep this land as garden for the  benefit of the locality.  But we cannot sustain the present order  passed by the High Court of Bombay.  In case, the respondents  cannot muster sufficient funds to acquire the land within six months   from today, in that case, it will be open to the appellants to utilize the  land for residential/ other  purpose in accordance with law.

       In view of our above discussion, we allow these appeals and  set aside the impugned orders  dated September 4, 1997 in Writ  Petition No.2087 of 1993 and September 8, 1999 in Civil Application  

No. 6171 of 1999 in Writ Petition No.2087 of 1993  passed by the  High Court of Bombay. There will be no order as to costs.