: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION (ST) NO.10143 OF 2006 IN LETTERS PATENT APPEAL NO. 17 OF 2002 IN FIRST APPEAL NO. 442 OF 1995 Jayesh Dhanesh Goragandhi, ) residing at A-2, Goragandhi Apartment, ) S.V.P. Road, Borivali (West), Mumbai 400 092. )... Petitioner Vs 1. The Municipal Corporation of Greater Bombay ) having its office at Mahapalika Marg, Fort, ) Mumbai 400 001. ) 2. The Ward Officer, R/N Ward, Municipal ) Corporation of Greater Bombay, Municipal ) Market Building, Borivali (West), ) Mumbai – 400 092 ) 3. Bhartiben Dhanesh Goragandhi, ) residing at `Goragandhi Apartments’, ) S.V.P. Road, Borivali (W), Mumbai – 400092. ) 4. Smt. Samita Raj Laliwala, ) residing at 5th Floor. ) 5. Ms. Disha Dhanesh Goragandhi, ) residing at A-2, Goragandhi Apartment, ) S.V.P. Road, Borivali (W), Mumbai – 400092. ) 6. Ranjit Harilal Goragandhi, ) residing at Goragandhi Apartment, S.V.P.Road, ) Borivali (West), Mumbai – 400 092. ) ... Respondents : 2 : ALONGWITH CIVIL APPLICATION NO. 64 OF 2006 Mr. A.K. Ganguli, senior counsel with Mr. Joaquim Reis for the petitioner. Mr. K.K. Singhvi, senior counsel with Mr. J.J. Xavier for the respondents. CORAM: S.B. MHASE & D.B. BHOSALE, JJ. DATE OF RESERVING: 4TH SEPTEMBER, 2009 DATE OF PRONOUNCEMENT : 16TH OCTOBER, 2009. ORAL JUDGMENT.: [Per S.B. Mhase, J.] 1. The Civil Application for condonation of delay and the Review Petition have been heard together. The Letters Patent Appeal No.17 of 2002 was decided by this Court on 6th May, 2005. Thereafter, the petitioner has preferred Special Leave to Appeal (Civil) No.20750 of 2005 before the Apex Court. The said matter was disposed of by the Apex Court on 24th October, 2005. The learned senior counsel appearing on behalf of the petitioner submitted before the Apex Court that certain points which were : 3 : really germane to the subject matter in dispute before the High Court had not been placed for its consideration. It is stated that the appropriate application be filed before the High Court for permission to urge those points. In view of the aforesaid submission, the Apex Court has passed the following order: “If it is done, the High Court shall deal with the matter in its proper perspective and in accordance with law about which we express no opinion.” In view of this order, the Review Petition along with the Civil Application for condonation of delay have been filed. The applicant in the Civil Application states that there is a delay of 319 days from the date of disposal of the matter by the Apex Court and that the said delay occurred because there was sudden death of the sister of the applicant/petitioner and since they were in a disturbed state of mind, they could not file the Petition. In view of the directions of the Apex Court and the grounds stated in the Civil Application, we condone the delay in filing the Review Petition and we direct the Office to number the Review Petition. : 4 : 2. We need not repeat the facts since all the facts have already been reflected in our judgment dated 6th May, 2005. What is important to be noted is that the original Plot No.9, final Plot No.44 as shown in the Scheme framed on 21st January, 1961, is a subject matter of this Petition. The only relevant fact which is required to be considered in the light of the submissions and the points raised by the learned senior counsel is that the said final Plot has been shown as a land required by the respondent- Planning Authority and as against the said plot, by way of compensation, no other land has been given to the petitioner. The Arbitrator, under the Maharashtra Regional Town Planning Act, 1966, has fixed the compensation and the said order passed by the Arbitrator was challenged before the District Court and later on by filing Writ Petition in this Court. The District Court, however, enhanced the compensation and thereafter this Court dismissed the Writ Petition. Thereafter, Suit was filed in the City Civil Court and from the said proceedings, the present Letters Patent Appeal has arisen. The learned counsel for the petitioner has raised the following propositions which have been submitted to this court in writing. We reproduce the same: “(1) Proposals for Development Plan must provide, inter alia, for: : 5 : (a) allocating the use of land for purposes such as; residential, industrial, commercial, agricultural, recreational. (b) designation of land for public purposes like schools, colleges ...., markets ...., government and other buildings....(vide section 22) (2) Town Planning Schemes prepared for implementing the proposals in the final Development plan should also make provisions for the matters specified in the Development Plan, including reservation, acquisition, or allotment of land, required for all the purposes mentioned in Section 59(1)(b). (vide Sections 59 & 64). (3) The Arbitrator appointed in accordance with Section 72 is required to define, demarcate and decide the areas allotted to or reserved for the public purpose or purposes of the Planning Authority, and also the final plots. (4) All lands required, reserved or designated in a Development Plan or town planning scheme for a public purpose, are deemed to be the land needed for a public purpose within the meaning of the Land Acquisition Act, 1894 (vide Section 125) and all such lands, required or reserved for any public purpose specified in any plan or scheme, may be acquired at any time by the Planning Authority or the Development Authority or any other appropriate Authority in accordance with the provisions contained in the Land Acquisition Act, 1894 (vide Section 126). (5) The cost of the scheme is required to be met wholly or in part by a contribution to be levied by the Planning Authority on each final plot calculated in proportion to the increment which is estimated to accrue in respect of such plot (vide Section 99). The cost the scheme includes all sums payable by a Planning Authority and all sums payable as compensation for lands reserved or allotted for any public purpose or purpose of a Planning Authority which is solely beneficial to the owners or residents within the area of the scheme. (6) Such plots of lands as are earmarked or reserved specifically for a public purpose, but which are not solely beneficial to the owners or the residents within the area of the scheme, would not fall within the jurisdiction of the Arbitrator since the estimated amount of : 6 : compensation payable for such lands could not be determined by him following the criterion laid down in Section 72 of the Act. (7) The lands, which are specifically reserved for a public purpose but not solely beneficial to the owners or the residential within the area of the scheme, would have to be compulsorily acquired in accordance with the Land Acquisition Act following the mandates of Section 125 and 126. The compensation that would become payable to the land owners for such acquisition would also not form part of such cost of the scheme and no part of the compensation amount could be met from the contribution to be levied by the Planning Authority on each final plot. (8) The lands specifically reserved and earmarked for a public purpose in the scheme which is not solely beneficial to the owners or the residents within the area of the scheme, are not lands “required by the Planning Authority” and hence, the provisions of Section 88(a) have no application in respect of such lands. (9) The decision dated 23.12.2004 of the Division Bench of this Hon’ble Court in Zahir Jahangir Vakil v Pune Municipal Corporation, has no application to the present case since the nature of the land which was the subject-matter of the scheme therein was completely different. In that case, out the original plot (revised plot no 77), two plots had been craved out – Final plot nos. 75 and 76. While the final Plot no. 76 was allotted to the landlord in substitution of the original plot of land, the other final plot no 75 was reserved for a school. The purpose of the school is a public purpose, and was reserved solely for the benefit of the owners and the residents within the area of the scheme and hence, the cost the said land became payable as compensation derived from the contribution levied by the Planning Authority and became part of the cost of the scheme. (10) In Zahir Jahangir Vakil's case, the provisions relating to "Finance of Schemes" contained in Section 97 and in particular clause(c) of Sub-section (1) thereof and sections 98 and 99, among others , had not been considered .Moreover, the inter-relationship between the provisions in Sections125 and 126 on the one hand, and : 7 : Sections 22(b), 64(b) and 97(1)(c) read with Section 99 regarding lands reserved for specific purpose in the development plan and in the Town Planning Scheme, which are not solely beneficial to the owners or residents within the area of the scheme had not been considered. The said decision, therefore, could not be regarded as a precedent for the questions involved in the present proceedings (vide Union of India v Dhanwanti Devi, (1996) 6 SCC 44, Para 9 and 10). (11) In the present case, however the land in question had been reserved for construction of a Municipal Building, which is neither solely beneficial to the owners nor the residents within the area of the Scheme. The compensation payable for such land could not be met from any contribution levied by the Planning Authority. Such compensation, therefore, would also not form part of the cost of the scheme and would have to be met independently by the acquiring authority in accordance with norms led down in the Land Acquisition Act. 3. The sum and substance of these submissions is that the Arbitrator and the Planning Authority, while framing the Scheme in respect of the property of the petitioner, should have considered whether the property required by the Planning Authority is for the beneficial use of the persons and the properties covered under the said Town Planning Scheme and/or the public in general. For the said purpose, reliance has been placed on Section 96, Section 72 and more specifically Section 72(3)(iv), (v), (vi) and (vii) of the Maharashtra Regional and Town Planning Act, 1966, and thereby it is contended that under the Scheme if any properties are required by the Planning Authority and if it is required for the beneficial use of the persons and the properties covered under the Scheme or general public, it is only : 8 : then that the Arbitrator can fix the compensation and pass an Award. It is further submitted that the petitioner’s property has been taken by the respondent-corporation for construction of office building of the respondent-Planning Authority and, therefore, it was not a property solely required for the benefit of the persons and the properties covered under the Scheme and/or for a public purpose and, therefore, the Arbitrator could not have passed an Award in respect of this property. It is then submitted that the cost of the said Scheme is to be incurred out of the contributions from the persons and the properties covered under the Scheme and, therefore, if the land is required by the Planning Authority, which is not for the beneficial use of the persons and the properties covered under the Town Planning Scheme, then the compensation which is to be paid to the persons similarly placed like the petitioner cannot be incurred out of the contributions. What is important to be noted is that while framing the Scheme, the contributions can be recovered from the persons and the properties covered under the Town Planning Scheme. The Planning Authority is also supposed to contribute if we look into the provisions of law. Therefore, the argument that the compensation cannot be paid to the persons similarly placed like the petitioner from the contributions of the persons covered under the Scheme is not sustainable in law. Apart from : 9 : that, it is an admitted position on record that the property is taken by the Planning Authority for the construction of an office and more specifically a Ward Office of the Planning Authority. All civil amenities are provided by the Planning Authority under the law and if the office of the Planning Authority is located in an area where the Town Planning Scheme has been framed, it will be definitely beneficial to the persons and the property covered under the Scheme. All the activities of the Planning Authority under the Act are to provide civil and municipal facilities to the citizens in the areas covered under its jurisdiction. Therefore, we do not find any substance in the said contention. 4. It is further to be noted that section 104 of the said Act is also relevant. The said section reads thus: “104. If the owner of an original plot is not provided with a final plot in the final scheme or if the contribution to be levied from him under section 100 is less than the total amount to be deducted therefrom under any of the provisions of this Act, the net amount of his loss shall be payable to him by the planning Authority in cash or in such other way as may be agreed upon by the parties.” On reading the said provision, it is clear the said owner is entitled for the net loss and that the same is payable by the Planning Authority in cash or in : 10 : such other way as may been agreed upon. This section does not qualify whether the final plot which is taken by the Planning Authority shall necessarily be a plot which is required for a beneficial use of the property and the persons covered under the Town Planning Scheme. In the present matter, there is no dispute about the fact that the amount of compensation has been fixed by the Arbitrator. Not only that, but on Appeal to the District Court, the amount has also been enhanced. It is not a case of the petitioner that from the said amount, the amount of contribution has been deducted. What is important to be noted first is that all the grounds which have been raised by way of the above propositions of law which has been advanced, were not part of the pleadings in the main Suit. Since the matter has arisen from the Suit, the said pleadings were very much necessary so that the other side could have had an opportunity to meet out those pleadings and led evidence in that regard. Viewed from any angle, we do not find any substance in the afore stated propositions advanced on behalf of the petitioner. No fault has been pointed out so far as our judgment dated 6th May, 2005, is concerned. No illegality and/or defect is also pointed out in the said judgment so as to interfere with it. 5. In the result, the Civil Application for condonation of delay is : 11 : allowed and stands disposed of. However, the Review Petition stands dismissed. (D.B. BHOSALE, J.) (S.B. MHASE, J.)