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PETITIONER: S.N. RAO & ORS. ETC.

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT09/02/1988

BENCH: DUTT, M.M. (J) BENCH: DUTT, M.M. (J) THAKKAR, M.P. (J)

CITATION:  1988 AIR  712            1988 SCR  (2) 919  1988 SCC  (1) 586        JT 1988 (1)   288  1988 SCALE  (1)299  CITATOR INFO :  RF         1992 SC1817  (17)

ACT:      Maharashtra  Regional  and  Town  Planning  Act,  1966: Sections 31,  40, 43, 45, 46, and 47-Development of land for construction of five star hotel-Master plan showing the land as residential  zone  and  contiguous  zone  as  green  belt Municipal  Commissioner   rejecting   the   plan-Appeal   to Government-Minister setting  aside the Commissioner’s order- Validity of the appellate order.

HEADNOTE: %      A piece of land had been purchased for the construction of a five-star hotel. In the sanctioned development plan the said land was shown in the residential zone and a contiguous parcel of  land was  shown as  green belt. When the plan was submitted to  the Municipal Corporation for the construction of a  five-star hotel, the Commissioner rejected the plan on the ground  that it was proposed to earmark the said land as a recreational  ground with  suitable  internal  network  of roads during  the revision of the development plan which was in the  offing. Aggrieved  by the  rejection, an  appeal was preferred to  the State  Government under  sec.  47  of  the Maharashtra Regional and Town Planning Act, 1966.      The appeal was heard by the Minister of State for Urban Development.  The  appellants  herein,  members  of  various ecological  groups   and  rate   payers  of   the  Municipal Corporation, appeared  and  opposed  saying  that  the  land should be  kept reserved  for a  green belt  or recreational ground in  the interest  of the general public. However, the Minister set  aside the  order of the Municipal Commissioner and  directed   the  sanctioning  of  the  plan  on  certain conditions. The Municipal Corporation accepted the appellate order and  did not  challenge it. But the appellants filed a Writ Petition  challenging the  legality of  the order.  The writ petition  was dismissed  by the High Court. The present appeal by special leave is against this dismissal.      Meanwhile the Municipal Corporation passed a resolution extending the  park reservation  by including  the remaining area of  the land  in question.  By another  resolution  the

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first resolution  was modified  limiting the reservation for the park to 7,000 sq. yards out of the dis- 920 puted land.  Thereafter the  State Government  exempted  the disputed land  under section  20 of  the Urban Land (Ceiling and Regulation)  Act, 1976.  The resolutions  and the  order were challenged  in  the  High  Court.  The  petitions  were dismissed by  a Single  Judge of the High Court and later by the Division  Bench on appeal. The Review Petitions also met the same  fate. The  petitioners  have  not  challenged  the judgment  of   the  High   Court  passed   on   the   review applications, but  filed before  this Court  the two special leave petitions challenging the legality and validity of the two resolutions and the order of Government giving exemption under section  20 of the Urban Land (Ceiling and Regulation) Act.      Dismissing the appeal, and the special leave petitions, this Court, ^      HELD: 1.1 In allowing the appeal and directing sanction of the  development plan, the Minister observed that in view of the  clear provisions of sections 46 and 31(6) of the Act and having  regard to  the position  that in  the sanctioned plan of  1966, the said land was included in the residential zone and  no proposal  to exclude  it therefrom in the draft revised development  plan had  been published, the Municipal Commissioner was  not justified in rejecting the application for approval  of the  plan on  the ground  that  the  Bombay Municipal  Corporation   had  decided  to  revise  the  1966 Development Plan.  The Minister  was of  the view  that  the Planning Authority  could only  take into  consideration any draft or  final plan or proposal which had been published by means of notice, or sanctioned under the Act. When Municipal Commissioner rejected  the plan,  there was no draft revised development plan  in existence.  It was in contemplation. If there had been such a plan, the Municipal Commissioner would be entitled to rely upon the same in rejecting the plan. The Commissioner was  not justified  in merely  relying  upon  a proposal for  the preparation  of a  draft revised  plan. An order rejecting a development plan submitted by the owner of the land  should be  supported by some concrete material. In the absence  of any  such material,  it will  be improper to reject the  plan on  the ground that there is a proposal for revision of  the draft plan or that such a revision is under contemplation. Therefore,  the ground for rejecting the plan was not tenable and the appellate authority was justified in allowing the appeal. [923H; 924A-B, H; 925A-C]      1.2 The  Municipal Corporation  has, subsequent  to the judgment of  the High  Court, prepared and published a draft revised development  plan. The plan is not inconsistent with the draft  revised development plan. There is no material on record to  show that  the Municipal Corporation which is the Planning Authority, had prepared the draft revised 921 plan in  accordance with  the direction of the Minister. The Minister has  acted  in  public  interest  by  imposing  the conditions. The conditions would show that considerable area out of  the disputed land has been reserved for recreational ground or  green belt.  The plan,  as  sanctioned  with  the conditions imposed,  has been  shown in  the  draft  revised plan. It was open to the Municipal Corporation to accept the verdict of the appellate authority and it has done so by not challenging it  in the  High Court  or  before  this  Court. [926E-H]      2.  The  contention  of  the  petitioners  against  the

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validity of  the resolution  is no  longer  tenable,  regard being had  to the  fact that  the draft  revised development plan has  since been  published and  the plan  submitted and conditioned by  the Minister  is not  inconsistent with  the draft revised  plan. The petitioners have also not seriously pressed the validity of the said resolution. [928C-D]      3. This Court is not called upon to decide the legality or otherwise  of the  order granting  exemption. These  have been considered  by the High Court in its judgment disposing of  the   review  applications.  The  petitioners  have  not challenged  the   judgment  on   review  applications.   The petitioners are  only interested  in seeing  that sufficient area is  kept reserved  for a  park or recreation ground for the benefit  of the  members of  the  public,  and  are  not concerned with  the question as to the legality or otherwise of the  exemption granted  by the  Government. The  question whether or  not sufficient  quantity of  land has  been kept reserved for  park and recreation ground has been adequately considered and  taken into account by the High Court. [928G- H; 929A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2537 of 1985 etc.      From the  Judgment and  Order dated  27.4.1984  of  the Bombay High Court in O.S.W.P. No. 704 of 1984.      G.G. Kalsekar, K.M.M. Khan, N. Nettar and S.N. Bhat for the Appellants.      S.K.  Dholakia,   Ashok  H.   Desai,  A.M.  Khanwilkar, A.S.Bhasme, D.N.  Mishra, S. Sukumaran, G.E. Vahanvati, V.B. Agarwala,  B.B.  Agarwala,  R.B.  Hathi  Khanawala  for  the Respondents.      Vinod A.  Bobde, Mrs.  J. Wad and Mrs. Aruna Mathur for the Intervener. 922      The Judgment of the Court was delivered by      DUTT, J.  The subject-matter  of this appeal by special leave is  the permission for development of the land granted in favour  of respondent  No. 5  who proposed to construct a five-star hotel  on a  tract  of  land  measuring  44,820.49 square yards at Bandra, Bombay, bearing R.S. Nos. 416 (Part) and 417.  The land  in question  had been  purchased by  the respondent  No.   5,  Enjay  Estates  Pvt.  Ltd.,  from  its erstwhile owner,  Byramji Jeejeebhoy  Pvt. Ltd.  In the 1966 sanctioned Development Plan of Greater Bombay, the said land was shown in the residential zone and a contiguous parcel of land measuring 18,000 sq. yds. was shown as a green belt.      With a  view  to  developing  the  disputed  land,  the respondent  No.   5  submitted   a  plan  to  the  Municipal Corporation of Greater Bombay for the construction of a five star hotel.  The Commissioner  of the Municipal Corporation, however, rejected  the plan  on the  sole ground that it was proposed to  earmark the  said land  under  reference  as  a recreational ground  with suitable internal network of roads during the revision of the development plan which was in the offing. Being  aggrieved by  the said rejection of the plan, the respondent  No. 5 pref erred an appeal to the Government of Maharashtra  under section 47 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as ’the Act’.      The appellants,  who are  rate-payers of  the Municipal Corporation of  Greater Bombay  and claim  to be  members of various ecological action groups, appeared in the appeal and

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opposed the  same contending,  inter alia, that the whole of the said  land should  be kept  reserved for a green belt or recreational ground in the interest of the general public.      The appeal was heard by the Minister of State for Urban Development, the respondent No. 2 herein. The respondent No. 2 set  aside the  order of the Commissioner of the Municipal Corporation rejecting  the plan  submitted by the respondent No. 5  after hearing  the petitioners  as also the Municipal Commissioner and directed sanctioning of the plan on certain conditions which will be referred to later in this judgment.      The Municipal  Corporation accepted the appellate order and did not challenge the order of the respondent No. 2. But the  appellants   filed  a  writ  petition  challenging  the legality of the order of the respon- 923 dent No.  2 granting  sanction of  the plan submitted by the respondent No. 5 for the construction of a hotel on the said land. The  writ petition  was,  however,  dismissed  by  the Division Bench  of the  High Court  by  the  judgment  under appeal.      At this  stage, we  may refer to some of the provisions of the  Act. It is an Act to make provision for planning the development and  use of land in Regions established for that purpose and for the constitution of Regional Planning Boards therefor; to  make better  provisions for the preparation of Development Plans with a view to ensuring that town planning schemes are  made in  a proper manner and their execution is made effective;  to provide for the creation of new towns by means of Development Authorities; to make provisions for the compulsory acquisition  of land required for public purposes in respect of the plans; and for purposes connected with the matters aforesaid.  Section 2(9)  defines "Development Plan" to mean  a plan for the development or re-development of the area within  the jurisdiction  of a  Planning Authority  and includes revision  of a  development plan and proposals of a Special Planning  Authority for  development of  land within its jurisdiction.  Under section 2(19), "Planning Authority" means a  local authority;  and includes  a Special  Planning Authority constituted or appointed under section 40. Chapter III of the Act contains provisions for the Development plan. Section 23  provides for the declaration of intention by the Planning Authority to prepare a Development plan. Section 26 provides for  the preparation  and the publication of notice of draft  Development plan.  Under section  30, the Planning Authority has  to submit  the draft  Development Plan to the State Government  for sanction.  Section 31 provides for the sanction  to   the  draft  Development  plan  by  the  State Government. Section  43 provides,  inter Ala, that after the date on  which the  declaration of  intention to  prepare  a Development plan  for any  area is published in the Official Gazette, no  person shall  carry out any development of land without the permission in writing of the Planning Authority. Section 45  deals with  grant or  refusal  of  sanction  for development by  the Planning  Authority. Section  45 enjoins that the  Planning Authority  in considering  an application for permission  shall have  due regard  to the provisions of any draft  or final  plan or proposals published by means of notice submitted  or sanctioned  under the  Act. Section  47 provides for  an appeal  to the  State Government  or to  an officer appointed  by the  State Government by any applicant aggrieved by  an order  granting permission on conditions or refusing permission under section 45.      In allowing  the appeal  of the  respondent No.  5  and directing 924

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sanction of  the development  plan,  the  respondent  No.  2 observed that in view of the clear provisions of sections 46 and 31(6)  of the Act and having regard to the position that in the  sanctioned plan  of 1966, the said land was included in the  residential zone  and  no  proposal  to  exclude  it therefrom in  the draft  revised development  plan had  been published, the  Municipal Commissioner  was not justified in rejecting the application for approval of the plan submitted by the  respondent No.  5 on  the  ground  that  the  Bombay Municipal  Corporation   had  decided  to  revise  the  1966 Development Plan.  We have already referred to section 46 of the Act  which  provides  that  the  Planning  Authority  in considering the  application for  permission shall  have due regard to  the provisions  of any  draft or  final  plan  or proposals  published   by  means   of  notice  submitted  or sanctioned under the Act. It seems that the respondent No. 2 was of  the view that the Planning Authority could only take into its  consideration any  draft or final plan or proposal which had  been published  by means  of notice or sanctioned under the  Act as  provided in  section 46. There is, in our opinion, some  force in the contention made by Mr. Kalsekar, learned Counsel  appearing on behalf of the appellants, that the respondent  No. 2  has misunderstood  the provisions  of section 46.  It is submitted by the learned Counsel that the Municipal   Corporation    was   entitled   to   take   into consideration   other    relevant   facts    including   the contemplated  revision   of  the   plan,  apart  from  those mentioned in  section 46.  In support of his contention, the learned  Counsel   has  placed  reliance  on  an  unreported decision of  a learned Single Judge of the Bombay High Court in Life  Insurance  Corporation  of  India  and  Another  v. Municipal Corporation  of Greater  Bombay and  Others,  Writ Petition No.  2944 of  1932 disposed of on 6.3.1984. In that case,  a   development  application   was  rejected  by  the Municipal Corporation  on the  ground that  the property was proposed  to   be  reserved   for  public  purposes  or  for recreational ground  in the  draft revised development plan, and the  High Court  repelled the  challenge to the decision taking the  view that  even the  proposed revision  could be taken into account as one of the relevant factors.      There can  be no  doubt that  if  there  be  any  other material or  relevant fact, section 46 does not stand in the way of  such  material  or  fact  being  considered  by  the Municipal Corporation  for the  grant or  refusal  to  grant sanction of any development plan. In the unreported decision of the  High Court,  the relevant  fact that  was taken into consideration was  the draft  revised development plan, even though the  plan was  not published.  In the  instant  case, however, at the time the Municipal Commissioner rejected the plan submitted  by the  respondent No. 5, there was no draft revised development plan in existence. 925 It was  in contemplation. If there had been such a plan, the Municipal Commissioner  would be  entitled to  rely upon the same in  rejecting the  plan submitted by the respondent No. 5. But,  as there was no such draft revised plan as has been stated before  this  Court  even  by  the  Counsel  for  the Municipal Corporation,  the Municipal  Commissioner was  not justified  in   merely  relying  upon  a  proposal  for  the preparation of  a draft  revised plan.  An order rejecting a development plan  submitted by  the owner of the land should be supported  by some  concrete material.  In the absence of any such material, it will be improper to reject the plan on the ground  that there  is a  proposal for  revision of  the draft plan  or that  such a revision is under contemplation.

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We are, therefore, of the view that the ground for rejecting the plan  submitted by  the respondent No. 5 was not tenable and the  appellate authority  was justified  in allowing the appeal.      It is urged by Mr. Kalsekar that in any event no appeal lay under  section 47  when the  Municipal  Corporation  had decided to  revise the  development plan.  We are afraid, we are unable to accept the contention. The same contention was advanced before  the respondent  No. 2  and it  was  rightly rejected. Section  47  of  the  Act  does  not  warrant  the contention urged  by the learned Counsel. In our opinion, to hold that  after the  Municipal Corporation  had decided  to revise the development plan, no appeal would be competent to the State  Government under  section  47,  would  amount  to legislating and  rewriting the  provision. Such a contention is without any substance and is rejected.      The respondent  No. 2 directed sanction of the plan out of 44,820.49  sq. yds. belonging to the respondent No. 5, on the following conditions:           (i)   15% Recreation space to be left in Block ’A’                shall be  kept on  the southern  side of  the                plot abutting the green space left from Block                ’B’ after  merging the Road area in the Green                space.           (ii) The Development shall be allowed IOD and C.C.                shall  be   issued  as  per  the  Development                Control Rules.           (iii)The  F.S.I.   of  the   road  area  would  be                admissible on  plot ’A’  as  per  Development                Control Rule 10(2).           (iv) The   Municipal    Commissioner,    Municipal                Corporation of  Greater Bombay, Bombay, shall                take over the possession of 926                the land  proposed to  be kept  as  Green  on                southern side, abutting the sea after getting                the plots properly demarcated.           The Municipal Commissioner, M.C., G.E., Bombay,      may consider the proposal of allowing the development      and maintenance of the park and garden space by the      applicant party at their own cost after obtaining the      possession of the lands now proposed to be kept green.           The permission for development of plots as per      plans submitted by appellants be granted by the M.C.B.      M.C. subject to the conditions mentioned above.      We are  told that after the above conditions are worked out, the area that will be available to the respondent No. 5 for the construction of the hotel is only 19,951.10 sq. yds. It is,  therefore, apparent that in granting sanction to the plan, the  respondent  No.  2  was  quite  alive  to  public interest.      At  this  stage,  we  may  notice  a  very  significant development that has taken place during the pendency of this appeal,  namely,   that  the   Municipal  Corporation   has, subsequent to  the judgment  of the High Court, prepared and published on  April 30,  1984 a  draft  revised  development plan. The  plan of  the respondent No. 5 is not inconsistent with  the   draft  revised   development  plan.   This  fact demolishes all the contentions of the appellants against the plan submitted  by the  respondent  No.  5.  Realising  this difficulty, Mr.  Kalsekar assailed the draft revised plan on the ground  that it  was prepared  in  accordance  with  the direction of  the respondent  No. 2.  This contention of the learned Counsel  has no  foundation whatsoever.  There is no material on  record to  show that  the Municipal Corporation

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which is  the Planning  Authority, had  prepared  the  draft revised  plan  in  accordance  with  the  direction  of  the respondent No.  2. The respondent No. 2, in our opinion, has acted  in   public  interest   by  imposing  the  conditions mentioned above. The conditions would show that considerable area  out  of  the  disputed  land  has  been  reserved  for recreational ground  or green  belt. The plan, as sanctioned by the  respondent No.  2 with  the conditions  imposed, has been shown  in the  draft revised  plan. It  was open to the Municipal Corporation to accept the verdict of the appellate authority and  it has  done so  by not challenging it in the High Court or before this Court. In the circumstances, there is no  merit in  this appeal  challenging the  order of  the respondent No.  2 sanctioning  the development  plan of  the respondent No. 5. 927      Now we  may take  up the  two Special  Leave  Petitions being Special  Leave Petition (Civil) No. 173776 of 1985 and Special Leave  Petition (Civil)  No. 17377  of 1985.  A  few facts may be stated.      The  Municipal   Corporation  passed  a  resolution  on 3.12.1973, inter  Ala, extending  the  park  reservation  by including the  remaining area  of the land comprised in R.S. No. 416  and R.S.  No. 417  (part)  at  Bandra.  By  another resolution  dated   14.3.1974,  the   first  resolution  was modified limiting  the reservation for the park to 7,000 sq. yds. out  of the disputed land. The petitioners, who are the appellants in  the above  appeal, filed two Misc. Petitions, namely, Misc.  Petition No.  463  of  1974  challenging  the legality and  validity of the resolution dated 14.3.1974 and Misc. Petition No. 1406 of 1978 challenging the order of the Government of  Maharashtra  dated  25.7.1978  exempting  the disputed land  under section  20 of  the Urban Land (Ceiling and Regulation)  Act, 1976,  hereinafter referred  to as the ’Urban Land  Ceiling Act’.  Both the  Misc.  Petitions  were dismissed by  a learned  Single Judge  of  the  Bombay  High Court. Two appeals were preferred by the petitioners against the judgment  of the  learned Single  Judge to  the Division Bench. On  July 30,  1984 when the appeals were taken up for hearing, a  prayer was  made by  the learned Counsel for the petitioners for  an adjournment  for two weeks on the ground that Shri  Bhore, the  Advocate-on-Record, had  met with  an accident and  the learned Counsel was unable to proceed with the appeals  without  the  Advocate-on-Record.  The  learned Judges of the Division Bench did not accede to the prayer of the learned  Counsel for an adjournment for two weeks on the ground that  the appeals  were old appeals of 1979, and that the learned  Counsel  who  prayed  for  adjournment  himself appeared throughout  the proceedings  as  an  Advocate.  The learned Judges,  however, adjourned  the appeals to the next day, that is, July 31, 1984 to enable the learned Counsel to be ready with the matter.      On the next day, the learned Counsel did not appear and the learned  Judges of  the Division  Bench disposed  of the appeals ex  parte by a judgment dealing with the contentions of the  petitioners. The  result was  that both  the appeals were dismissed.  We do  not think that we are called upon to consider whether  the learned  Judges should have granted an adjournment for  two weeks  as was prayed for by the learned Counsel. Suffice  it to  say that if an adjournment had been granted,  multiplicity   of  proceedings   could  have  been avoided.      Be  that   as  it   may,  the   petitioners  filed  two applications for  review. Both  the  said  applications  for review were dismissed by the

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928 Division Bench  after considering  all the  points including certain  additional  grounds  to  the  effect  that  certain contentions had  not been dealt with earlier by the judgment dated  October   9/10,  1985.   The  petitioners   have  not challenged the  judgment of  the High  Court passed  on  the review applications.  They have,  however, filed before this Court the above two Special Leave Petitions.      Special Leave Petition (Civil) No. 17376 of 1985 arises out  of   Misc.  Petition   No.  463  of  1974  whereby  the petitioners challenged the legality and validity of the said resolution dated  14.3.1974. We  are of  the view  that  the contention of  the petitioners  against the  validity of the resolution is  no longer  tenable, regard  being had  to the fact that  the draft revised development plan has since been published and the plan submitted by the respondent No. 5 and conditioned by the respondent No. 2 is not inconsistent with the draft  revised plan.  In that  view of  the matter,  Mr. Kalsekar also  has not seriously pressed the validity of the said resolution. Accordingly, Special Leave Petition (Civil) No. 17376 of 1985 is liable to be dismissed.      So far  as Special  Leave Petition  (Civil) No.17377 of 1985 is  concerned, it  has been  strenuously urged  by  Mr. Kalsekar that in granting exemption to the respondent No. 5, the authority concerned has violated the relevant guidelines and also  the provision  of section  20 of  the  Urban  Land Ceiling Act.  Learned Counsel  points out  that one  of  the grounds for exemption is that 75,000 sq. yds. of vacant land is available  for the development of gardens. As a matter of fact, Counsel submits, it is not a vacant land, but contains 350 houses.  It is  submitted that granting exemption on the ground of  availability of  75,000 sq. yds. of open site for the purpose  of gardens is a fraud on the Urban Land Ceiling Act. It  is, accordingly,  urged by the learned Counsel that the order granting exemption should be quashed.      The  above   grounds  of  challenge  to  the  order  of exemption granted  to the  respondent No.  5 have  all  been considered by  the High  Court in  its judgment disposing of the review applications. The petitioners have not challenged the judgment  on review  applications. The  petitioners  are only interested  in seeing  that  sufficient  area  is  kept reserved for  a park or recreation ground for the benefit of the members  of the  public. They  are not,  in our opinion, concerned with  the question as to the legality or otherwise of the exemption granted by the Government to the respondent No. 5  under the Urban Land Ceiling Act. A copy of the draft revised development  plan has been produced before us by Mr. Desai, learned Counsel appearing on behalf of 929 the respondent  No. 5.  We are  satisfied that  the question whether or  not sufficient  quantity of  land has  been kept reserved for  park and recreation ground has been adequately considered and  taken into account by the High Court. In the circumstances, we  do not  think that  we are called upon to decide the  legality or  otherwise  of  the  order  granting exemption to  the respondent  No. 5  under  the  Urban  Land Ceiling Act.  There  is,  therefore  no  substance  also  in Special Leave Petition (Civil) No. 17377 of 1985.      In the  result, the  appeal and  both the special leave petitions are dismissed. There will, however, be no order as to costs. G.N.                         Appeal and Petitions dismissed. 930

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