-: 1 :- wp- 6758/09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6758 OF 2009 Vasant Vinayak Sathe & Ors. ..Petitioner. Versus The State of Maharashtra & Others. ..Respondents. Mr. P. B. Shah i/b Mr. A. B. Avhad for the petitioners. Mr. V. S. Gokhale, AGP for R-1 & 3. Mr. Bharat Mehta for R-2. Mr. A. V. Anturkar with Mr. Sandip Pathak and Mr. S. G. Deshmukh for R-4. Coram : SMT. RANJANA DESAI & RANJIT MORE, JJ. Date : August 12, 2011. P. C. [Per Ranjit More, J.] : 1. Rule. By consent of the learned counsel appearing on behalf of the respective parties, the petition is taken up for final hearing forthwith. 2. Heard Mr. Shah, learned counsel for the petitioners, Mr. Bharat Mehta, learned counsel for respondent no.2, Mr. Anturkar for Respondent no.4 and Mr. Gokhale, learned AGP for Respondent nos. 1 and 3. 3. The petitioners by this petition filed under Articles 226 srp -: 2 :- wp- 6758/09 and 227 of the Constitution of India, seek directions to respondents to cancell the orders under which their names were deleted from the ownership columns and PMC is declared as owner of the suit property. The Petitioners have also claimed declaration to the effect that the acquisition of the suit property pursuant to the Town Planning Scheme is totally illegal and void abinitio. 4. The case of the petitioners is as follows : The petitioners are the owners of Plot No. 47-A of Survey No. 22[Part], CTS No.1077, Shukrawar Peth, Pune, admeasuring 3186.39 sq. meters [hereinafter referred to as “the suit property.”] In the year 1989, town planning scheme of Pune was published. In the said town planning scheme, Plot No.47- A, i.e., the suit property was shown as reserved for garden and open space. It is the case of the petitioners that the Corporation, without following any procedure for acquiring the suit property, unilaterally and without any notice to the petitioners, entered its name against the suit property by deleting the names of petitioners. It is also case of the petitioners that draft development plan of Pune Municipal Corporation was sanctioned on 5/8/1987 and in the said Development Plan, the suit property was shown in the -: 3 :- wp- 6758/09 residential zone. In short, it is the case of the petitioners that the suit property is shown in residential zone in the the Development Plan of Pune Municipal Corporation, at the same time it is shown to have been reserved for garden and open space in the Town Planning Scheme, which was sanctioned on 15/7/1989. The petitioners claim that there is a conflict between the Development Plan of Pune Municipal Corporation and Town Planning Scheme qua the suit property. It is also specific case of the petitioners that in case of a conflict between the Development Plan and Town Planning Scheme, the Development Plan shall prevail and therefore unless and until the Corporation acquires the suit property by following procedure under the Maharashtra Regional Town Planning Act, 1966 [for short “the MRTP Act, 1966”] petitioners’ names cannot be deleted from the record of rights of the suit property. 5. Mr. Shah, learned counsel for the petitioners during the course of arguments relied upon Division Bench judgment in the case of Indirabai B. Bhajekar & Ors. vs. Pune Municipal Corporation & Anr. [2009(6) BCR 554]. This case also pertains to the Pune Municipal Corporation. He relied upon paragraph nos.13 & 14 of this judgment to contend that after sanction of -: 4 :- wp- 6758/09 draft town planning scheme, there is noting on record to show that Arbitrator was appointed and he passed an award as contemplated under section 72(3) of the MRTP Act. 6. Mr. Anturkar and Mr. Bharat Mehta, learned counsel appearing on behalf of respondent no.4–Society and Pune Municipal Corporation respectively contested the petition. It was submitted that the draft Town Planning Scheme of Pune was sanctioned by the State Government on 1/4/1943. Thereafter, initially one Mr. J. B. Soparkar was appointed as Arbitrator. He was replaced by one Mr. V. K. Bakre. Mr. Bakre was also replaced by one Smt. Choubal and lastly Mr. M. I. Patel was appointed as Arbitrator on 24/7/1976. The Arbitrator Mr. M. I. Patel passed an award on 27/1/1977. Thereafter, Tribunal of Appeal was constituted on 1/12/1977. Several appeals in respect of the plots other than the suit property were preferred. Those appeals were disposed of in or about 1980 and thereafter the Government sanctioned the final scheme under section 86 of the MRTP Act, 1966 on 15/7/1989. Learned counsel submitted that in view of the final sanction of the scheme, the suit property vests absolutely in the planning authority. Regarding the conflict between the Town Planning -: 5 :- wp- 6758/09 Scheme and the Development Plan, it was submitted that there is no conflict, as the suit property was shown in the residential zone in Development Plan and it was not a reservation. 7. Insofar as the argument of Mr. Shah in respect of Indirabai’s case (supra) is concerned, Mr. Anturkar submitted that ratio of the same, cannot be made applicable to the present case. He submitted that in Indirabai’s case (supra), there was no award in respect of the plot of land which was subject matter of the writ petition. He also submitted that the observations of the Division Bench that there is no record showing that Arbitrator was appointed subsequent to the sanction of Town Planning Scheme, are factually incorrect. He also submitted that insofar as the present case is concerned, there is award passed by the Arbitrator in respect of the suit property. 8. Having considering the submissions of the learned counsel appearing for the respective parties and having gone through the compilation of writ petition alongwith annexures thereto and relevant case laws, we do not find any merit in the petition. There is no dispute that draft Town Planning Scheme -: 6 :- wp- 6758/09 was sanctioned by the State government on 1/4/1943 under the provisions of Bombay Town Planning Act, 1915. From the Indirabai’s case (supra), it is clear that initially one Mr. J. B. Soparkar, Consulting Surveyor to the Government of Bombay was appointed as Arbitrator for finalising the said scheme. On the retirement of Shri. Soparkar, Shri. V. K. Bakre was appointed as an Arbitrator and on his retirement, Smt. Jyotsna Choubal worked as an Arbitrator from 11/10/1975 to 23/5/1976. She was transferred and Shri. M. I. Patel took the charge as Arbitrator and passed his award on 27/1/1977. The above factual aspects are not disputed by Mr. Shah, Mr. Bharat Mehta and Mr. Anturkar, learned counsel appearing on behalf of the petitioner, respondent no.2 and respondent no.4 respectively. 9. One Mr. Prakash Bongale, Assistant Director of Town Planning has filed affidavit on behalf of respondent no.1 – State. He has annexed a copy of the map of final sanctioned Town Planning Scheme No.3 to his affidavit. At Exhibit-2 he has annexed the statement in Form-1 with regard to final Plot No. 47 and 47-A, i.e., the suit property. The contents of this affidavit are not denied by the petitioners by filing rejoinder. A perusal of this affidavit makes following facts very clear. -: 7 :- wp- 6758/09 (A) Survey No. 22 (original Plot No. 47) was admeasuring about 41,126.36 sq. mts and it was shown in the names of (i) Vinayak R. Sathe, (ii) Ramchandra R. Sathe, (iii) Purshottam R. Sahte, (iv) Narayan R. Sathe, (v) Smt. Ramabai L. Purandare and (vi) Smt. Malati S. Pethkar, i.e., the predecessor-in-title of the present petitioners. In Town Planning Scheme, final plot No. 47, admeasuring 34,145.23 sq. mts, i.e., the area under the plots and colony roads have been shown allotted to the owners and triangular shape final plot No. 47-A is shown to have been allotted to Pune Municipal Corporation. (B) The amount of Rs.13,800/- is shown payable to the owners of the original plot No.47 for the loss of their area in constituting final Plot No. 47-A and for the loss of area for the roads of the said Town Planning Scheme. (C) Final Plot No.47-A admeasuring 3186.39 sq. mts. is shown to have been reserved for garden and open space. 10. Perusal of Form-1 annexed at Exhibit-II to the affidavit of Mr. Prakash Bongale, ADTP, Pune shows that original Plot No. 47 was admeasuring about 10 Acres and 6.5 Gunthas after deducting an area about 2-Acres and 6.5- Gunthas, which was acquired for Tilak Road. Form-1 further shows that original Plot No. 47 was divided into 63 final plots, -: 8 :- wp- 6758/09 namely, Plot Nos.47/1 to 47/62 and 47-A. Plot No. 47-A is shown to have been reserved for open space and garden and entered in the name of PMC. The amount of Rs.13,800/- is shown as payable to the owners of original Plot No.47, i.e., the predecessors-in-title of the petitioners for the loss of their area for constituting final Plot No.47-A and for the loss of their area for the roads of the said Town Planning Scheme. This fact is not controverted by the petitioners by filing affidavit-in-rejoinder. 11. Mr. Anturkar, learned counsel for respondent no.4 tendered in Court a copy the judgment containing the decision of Tribunal of Appeal constituted under Section 72 of the MRTP Act, 1966 in respect of Town Planning Scheme No.-III, Pune [Final]. Perusal of the said judgment makes it clear that the Government by notification dated 1st December 1977 constituted the Tribunal of Appeals consisting of the President, namely, the Civil Judge, Senior Division, Pune and two Assessors, namely, D. T. Talim, Retired Director of Town Planning and Mr. J. T. Jabade, Retired Civil Judge, Junior Division, Pune. The judgment further shows that 613 appeals were filed challenging the decision of Arbitrator – Mr. M. I. Patel, under section 72(3) of the MRTP Act, 1966. A minute perusal of the -: 9 :- wp- 6758/09 judgment reveals that Appeal Nos. 105 to 115 were filed in respect of the final plots carved out of original Plot No. 47. What is important to note is that there was no appeal in respect of final plot No. 47-A. The operative part of the judgment shows that the Tribunal dismissed 589 appeals. 12. It is evident from the provisions of the MRTP Act, 1966 that Town Planning Scheme is required to be sanctioned at two stages. Under section 68 of the MRTP Act, 1966 [i.e., under section 28 of the Bombay Town Planning Act, 1954], the State Government sanctions the draft town planning scheme. Section 86 contemplates sanction by the State Government to the final town planning scheme. Once the draft scheme is sanctioned under Section 68 or corresponding section of the repealed Town Planning Act, the Arbitrator is appointed under Section 72 is required to decide all matters referred to in sub- section (3) of section 72. Any decision of the Arbitrator under clauses (vi) to (xi) and (xiv), (xv) and (xvi) of sub-section (3) of section 72 can be challenged by the aggrieved party by filing an appeal before Tribunal of Appeal under Section 74. The Arbitrator after the decision of appeals, is obliged to make necessary variations in the final scheme as drawn by him as -: 10 :- wp- 6758/09 contemplated under clause (xviii) of sub-section (3) of section 72 and thereafter is obliged to file the scheme together with copy of the decision of the Tribunal of Appeal for the sanction of the final scheme. Section 86 empowers the State Government to sanction the final scheme and once final scheme is sanctioned by the State Government, all lands required by the planning authority vest absolutely in the planning authority, free from all encumbrances under Section 88. 13. If the facts of the present case are examined alongwith the scheme of the MRTP Act, 1966, then it is unequivocally clear that draft town planning scheme was sanctioned on 1/4/1943 by the State Government under the provisions of repealed Town Planning Act, 1915 and thereafter Arbitrator was appointed to decide the objections under Section 72(3). The Arbitrator passed an award in which the final plot No. 47-A is alloted to the PMC and shown to have been reserved for open space and garden. The predecessors-in-title of the petitioners are held entitled for the compensation of Rs.13,800/- for loss of their land for constituting final Plot No.47-A. It is also clear that the petitioners have not preferred any appeal against this -: 11 :- wp- 6758/09 award so far as constitution of final Plot No.47-A is concerned. The final scheme was submitted to the State Government for sanction and the State Government has sanctioned the scheme under Section 86. In the backdrop of above facts and circumstances, we are of the considered opinion that in view of the provisions of section 88 of the MRTP Act, 1966, the suit property, namely, final Plot No.47-A admeasuring 3186.39 sq. meters was reserved for open space and garden and same vested absolutely in PMC free from all encumbrances. 14. We have also minutely perused the decision of the Division Bench in Indirabai’s case (supra), which is heavily relied upon by Mr. Shah, learned counsel for the petitioners. The Division Bench in paragraph no.13 has observed that the town planning scheme of Pune was sanctioned by the State Government on 15/7/1989 and it has been brought into force from 15/9/1989. The plot in question was shown to have reserved for municipal school in the said scheme. The Division Bench called upon the Corporation to place before them the details regarding appointment of Arbitrator after the scheme was sanctioned on 15/7/1989, including the awards passed by the Arbitrator in respect of plot in question so as to compute the compensation payable/receivable under Section 72 of the -: 12 :- wp- 6758/09 MRTP Act, 1966. The Division Bench observed that no such record or copy of the award was placed before them either by the Corporation or the State Government. It was also observed that there is no statement in the affidavit of the Government that Arbitrator was appointed after 15/7/1989. The Division Bench further observed that unless it is proved on the basis of material that after the Town Planning Scheme was sanctioned on 15/7/1989, the Arbitrator was appointed and accordingly arbitration proceedings were held in respect of the plot in question and compensation was computed and offered to the petitioners therein, the Corporation cannot rely upon the provisions of Sections 88, 89 and 90 the MRTP Act, 1966 and claim to have become absolute owner of the plot in question. 15. We have perused the relevant documents of the Corporation. As stated above, the MRTP Act, 1966 contemplates sanction to Town Planning Scheme at two stages, namely, sanction to the draft Town Planning Scheme under Section 68 and sanction to the final Town Planning Scheme under Section 86. The Arbitrator is appointed under Section 72, once the draft Town Planning Scheme is sanctioned. After the proceedings before the Arbitrator and Tribunal of Appeal -: 13 :- wp- 6758/09 are concluded, the Arbitrator is obliged to forward the final scheme to the State Government and State Government under Section 86 would grant sanction or refuse to give such sanction. Mr. Shah, learned counsel for the petitioners as well as Mr. Anturkar, learned counsel for respondent no.4 fairly admitted that final Town Planning Scheme of Pune Muncipal Corporation was sanctioned by the State Government on 15/7/1989 and it was brought into force from 15/9/1989. After sanction of the final scheme by the State Government, there is no question of appointment of Arbitrator to decide the arbitration proceedings. As per the provisions of section 88, after sanction of final Town Planning Scheme, all lands allotted to the Planning Authority vest absolutely in the planning authority free from all encumbrances. Under section 89, the planning authority has power to evict any person continuing to occupy any land which he is not entitled to occupy under the final scheme. Section 90 gives planning authority power to enforce the scheme. The Arbitrator under the scheme of the MRTP Act, 1966 is required to be appointed subsequent to the sanction of draft Town Planning Scheme. In the present case, on the basis of record placed before us, we have found that various Arbitrators were in fact appointed after sanction of the -: 14 :- wp- 6758/09 draft town planning scheme and ultimately award was passed by one Mr. M.I.Patel, the Arbitrator on 27/1/1977 and thereafter appeals arising out of arbitral proceedings were disposed of by the Tribunal of Appeal constituted under Section 75 of the MRTP Act, 1966. Under these facts and circumstances, in our considered opinion, Mr. Shah, learned counsel for the petitioners cannot rely upon the judgment of the Division Bench in Indirabai’s case (supra). 16. There is one more distinguishing factor between the present case and Indirabai’s case (supra). The observation in paragraph no.13 in Indirabai’s case (supra) makes it abundantly clear that though award was passed by Mr.M.I.Patel on 27/1/1977, the land in question in that case was not subject matter of the arbitral proceedings. In the present case, it is clear from the affidavit filed by Mr. Prakash Bongale, ADTP that there was an award in respect of Town Planning Scheme of Poona No. III and the suit property, namely, final Plot No.47-A was very much subject matter of the award. The said plot, as stated above, was reserved for garden and open space and shown in the name of PMC after awarding compensation of Rs. 13,800 to the erstwhile owners, i.e., the predecessors-in-title of -: 15 :- wp- 6758/09 the petitioners. 17. This takes us to consider Mr. Shah’s argument that there is a conflict between the Development Plan and Town Planning Scheme of Pune Municipal Corporation inasmuch as the suit property was shown in “residential zone” in the Development Plan and same property is shown as reserved for garden and open space in the Town Planning Scheme. We are not impressed by the submission. In the Development Plan, the suit property is only categorised as “residential zone”; it is not reservation for a particular purpose. However, in the Town Planning Scheme, the suit property is shown reserved for garden and open space. Residence is not a reservation, but it is a zone. The land placed in the residential zone in the Development Plan, can be shown reserved for garden and open space in residential zone. In our opinion, therefore, there is no conflict in the Development Plan of Pune Municipal Corporation and Town Planning Scheme in respect of the suit property. 18. Be that it as may, the suit property was subsequent to the sanction of Town Planning Scheme was encroached upon by the slum-dwellers and therefore, State Government in -: 16 :- wp- 6758/09 exercise of powers under Section 91 the MRTP Act, 1966 made modifications about the reservation status of the suit property in Town Planning Scheme and same is brought in conformity with the Development Plan of Pune Municipal Corporation of 1987. In these facts and circumstances, the question whether the Development Plan or the Town Planning Scheme will prevail does not arise in the present case. 19. Taking overall view of the matter, we do not find any merit in the petition and same is therefore dismissed. Rule is discharged. (Smt. Ranjana Desai,J.) (Ranjit More, J.)