1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION PIL WRIT PETITION NO.660 OF 2004 1. JANHIT MANCH Kuber Bhuvan, Bajaj Road, Vile Parle (West), Mumbai-400 056. 2. Bhagvanji Raiyani, Kuber Bhuvan, Bajaj Road, Vile Parle (West), Mumbai-400 056. 3. Dr. N.N. Kulkarni, R-21-1481, Abhyudaya Nagar, Cotton Green, Mumbai-400 033. 4. Save Mumbai Committee, through its President Shri Kisan Mehta, residing at 620, Jame Jamshed Road, 4th Floor, Dadar, Mumbai-400 014. .... Petitioners - Versus - 1. State of Maharashtra, through its Principal Secretary Department of Urban Development and the Principal Secretary, Revenue and Forest Department, Government of Maharashtra, Mantralaya, Mumbai-32. 2. The Commisioner, 2 Brihanmumbai Municipal Corporation, Mahapalika Marg, Mumbai-400 001. 3. The Chairman, Mafatlal Industries Limited, Mahafatlal Mahal, 1st Floor, Beckbay Recklamation, 4. Rashtriya Mill Mazdoor Sangh, Representative Union, having its office at Mazdoor Manzil, G.D. Ambekar Marg, Parel, Mumbai-400 012. 5. Central Zoo Authority, Bikaner House, Annexe-IV, Shahjehan Road, New Delhi-110 011. .... Respondents Mr. Shiraj Rustomji, Amicus Curiae. Mr. Bhagvanji Raiyani, Petitioner No.2 in-person. Mr. Ravi Kadam, Advocate General with Mr. D.A. Nalawade, Government Pleader for Respondent No.1. Mr. K.K. Singhvi, Senior Counsel, with Ms Shobha Ajitkumar for Respondent No.2. Mr. R.A. Dada, Senior Counsel with Mr. J.P. Sen and Mr. Piyush Raheja i/b M/s. Federal & Rashmikant for Respondent No.3. Mr. Janak Dwarkadas with Mr. V.R. 3 Dhond, Mr. Shailesh Pathak and Mr. Ravi Sankpal for Respondent No.4. CORAM: BILAL NAZKI & Smt. V.K.TAHILRAMANI, JJ. RESERVED ON : JULY 18, 2009 PRONOUNCED ON: SEPTEMBER 23, 2009 JUDGMENT (Per Bilal Nazki, J.): 1. Originally the writ petition was filed in public interest seeking a restraint from de- reserving a plot of land. During the pendency of the petition, a notification came to be issued on 10-2-2004. By this notification 50% of land, after de-reservation, was given to respondent No.3 and the remaining 50% was to be continued as reserved. It was also reflected in the amended Development Plan. The petitioners thereafter amended the petition and have challenged the said notification in this petition. Counters have been filed and we have heard the learned counsel appearing for the 4 parties at length. 2. This petition relates to a piece of land admeasuring 58197 sq.metres (approximately 14 acres) adjacent to the existing Ranibaug Botanical Garden & Zoo. It was always reserved under the Development Plan for extension to the Zoo. Two lease deeds were executed with respect to this land by Collector of Bombay in favour of respondent No.3-Mafatlal Industries Limited, effective from 1913 and 1918 respectively for a period of 99 years each. The leases also gave an option for renewal to respondent No.3 for a further period of 99 years on the same terms and conditions. Only the rent would be increased on the basis of prevailing market value. On 23-12-1991 the Final Development Plan for E-Ward came into force. The reservation of the land as an extension for the Zoo was continued. Respondent No.3 filed a petition being Writ 5 Petition No.1327 of 1992 challenging the retention of the reservation and submitted that the land should have been marked for industrial use. In February, 2000 respondent No.3 filed a Reference with the BIFR under SICA. In June, 2000 respondent No.3 stopped manufacturing activity and on 19-9-2000 respondent No.3 was declared a sick industrial company by the BIFR. The IDBI was directed to prepare a scheme for revival, if found viable. Respondent No.3 addressed a purchase notice under Section 49 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter called as "the MRTP Act") to the Government of Maharashtra. On 14-5-2001 respondent No.3 gave another proposal to the Government and it was proposed that the Government should de-reserve the said land thereby enabling respondent No.3 to restart spinning activities at its Mazgaon Unit and develop a portion of the land in accordance with DCR No.58. On 18-6-2001 the 6 Government of Maharashtra rejected the purchase notice. On 4-7-2001 the Government passed an order under Section 37(1) of the MRTP Act, directing the Bombay Municipal Corporation to initiate steps to modify the Development Plan so as to effect the deletion of the said reservation. On 20-4-2002 the Bombay Municipal Corporation wrote a letter to the BIFR opposing deletion of the reservation. On 30-10-2002 the BIFR sanctioned the scheme for rehabilitation of respondent No.3-Mill. The sanctioned scheme envisaged the operation of the plant at Mazgaon with 10000 spindles and payment of the dues of the workers and financial institutions. An integral part of the sanctioned scheme was the sale of surplus/unproductive assets of respondent No.3, including its land. One of the reliefs which was required to be granted by the Government under the sanctioned scheme was the issuance of the final order for de- reservation of the said land and to allow 7 respondent No.3 to develop its land under DCR No.58 in order to finance the scheme. The sanctioned scheme envisages the rationalisation of the work-force of respondent No.3. The total VRS payable under the sanctioned scheme was Rs.104.75 crores. Out of this, about Rs.86 crores pertain to the workers of the Mumbai Unit of respondent No.3. The notification of the Government was issued under Section 37(2) of the MRTP Act, sanctioning deletion of 50% of the net reservation area from the "extension of VBJ Udayan" and designating the deleted area as "extension activities" and retaining the remaining 50% as reserved for extension to VBJ Udayan on the terms and conditions stipulated in the order. One of the conditions was that respondent No.3 shall handover to the Bombay Municipal Corporation free from encumbrances the reserved area on non-cash compensation term. As a result of this the total area of land reserved for the Zoo in 1967 Development 8 Plan was 12 hectares. Of this, respondent No.3 admeasures 5.56 hectares. Fifty percent of this land i.e. 2.78 hectares has been released from reservation. The facts have been mentioned briefly and are not disputed. 3. The learned amicus curiae appearing in the case has challenged the order on various grounds. He submitted that the Zoo, which is also a botanical park, is the only open space of a reasonable size in the area and is extensively used as a recreational space by the public. He submits that the City of Mumbai suffers from a gross shortage of public open spaces and those spaces which exist are facing tremendous pressure. He submitted that universally it is expected that open space to population ratio must be at least 4 acres per thousand persons, but in Mumbai it would be around .088 acres per thousand persons. He further submitted that there are studies which 9 have placed it at around .03 acres per thousand persons. Therefore, the learned amicus curiae submits that it is need in Mumbai to save open spaces which are still available because it will not be possible to create open spaces. He also contended that as a principal de- reservation of land reserved for such open spaces should not be allowed unless it was absolutely unavoidable or inescapable. In any effort for balancing of interest while considering de-reservation of an open space, the Court should always tilt in favour of maintaining the reservation. Thirdly, he contended that since the land was reserved for extension of the Zoo, the Government should have considered whether the land in question was required for the Zoo or not. He has also contended that the justifications given by the respondents for de-reservation of a part of the land were not relevant. According to him, the present figure of workers' dues payable under 10 the VRS were only Rs.27 crores. All 2634 workers of respondent No.3 in Mumbai had opted for the VRS and, therefore, were entitled to the VRS. He also contends that TDR rates were approximately Rs.25,000/- per sq.metre at that time and had respondent No.3 surrendered the entire 14 acres against receipt of TDR for the plot, it would have received about Rs.193 crores. Therefore, the interest of the workers could have been taken care of with this money. 4. The learned senior counsel appearing on behalf of respondent No.3, on the other hand, submitted that respondent No.3 had issued a purchase notice on 19-12-2000 upon respondent No.1 in respect of the land. Respondent No.1 did not acquire the Mazgaon land pursuant to the purchase notice either within six months or at any time thereafter. Respondent No.1 by letter dated 18-6-2001 expressly rejected the purchase notice. According to the learned 11 senior counsel appearing for respondent No.3, the consequence of such would have been that the whole reservation would have gone. He further submitted that the fact that respondent Nos.1 and 2 were not able to acquire the land surrounding the Zoo, which was also reserved for the extension of the Zoo, also proves the fact that the State was in no position to acquire the land. Many other plots of land around the Zoo are reserved but without any realistic possibility that the land can actually be acquired and put to public use for extension of the Zoo. Respondent No.3 has submitted the ground situation in and around the Zoo which is as under: "(a) Area of Existing VJB Udayan ... 1,92,520 Sq.mtrs. (b) Area of Land Reserved for Extension of VJB Udyan (i.e. land Surrounding the Zoo) ... 1,20,832.72 Sq.mtrs. (c) Land acquired ... 22,517.27 Sq.mtrs. (d) Land reserved but not acquired ... 98,315.45 Sq.mtrs." 12 He submitted that respondent No.1 in its affidavit dated 17-7-2004 had expressly said thus: "The Corporation which would have acquired the said Mazagaon Land, was in no financial condition to acquire the same. The State Government, with its various priorities, also has no financial resources to acquire the said land. The Respondent No.3 Company is in use and occupation of the said Mazagaon Land under a subsisting lease which does not restrict the uses to which the same can be put to with provisions for renewal of the said lease on the same terms (including the provision for renewal), with a right to assign parts of the said land with only a notice to the Lessor as provided therein etc." He submits that in balancing the interest, the Zoo got 75% of land, almost with no cost and if the reservation had been continued, the Zoo would not get anything and the damage to respondent No.3, its workmen and financial institutions and creditors would have been tremendous. He submits that since respondent 13 No.3 was not permitted to either increase the capacity, expand or modernise the machineries existing for the last 40 years, respondent No. 3 was in no position to exploit the potential of the Mazgaon land and as such respondent No. 3 steadily deteriorated and was eventually declared a sick industry by the BIFR on 19-9-2000. He submits that though the sanctioned scheme provided for de-reservation of the whole land, ultimately respondent No.1 by the impugned notification provided for deletion of only 50% of the reservation and subjected it to the following conditions: (a) that the 50% of the area on which the reservation was retained would be handed over by Respondent No.3 to the Corporation free of any encumbrance and without any monetary compensation; (b) that the land released from the reservation would be developed in 14 accordance with Regulation 58 of the DCR for Greater Mumbai and in accordance with the Sanctioned Scheme; (c) that the Company shall utilize the funds from such development for payment of the dues of its workers and Financial Institutions as stipulated by the BIFR. 5. The learned Advocate General appearing for the State submitted that the Government has duly considered the matter in all its aspects and in order to strike a balance between the need to continue the reservation and the need to restore the company and also to see that the dues of the workers are paid, the de-reservation was approved. He submits that Regulation No.58 of the amended DCR empowers the State to adopt such a course and keeping in view the conflicting interest a conscious decision had been taken. Our attention has been drawn to a Judgment of the 15 Supreme Court in the case of Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group and others, reported in (2006) 3 SCC 434, where a comparison was made between the Old DCR and the New DCR No.58 and the Supreme Court held that the New DCR provides for a change of user in relation to the existing built-up area, subject to recommendations of the BIFR as a package. In para 126 of the Judgment, the Supreme Court held thus: "126. Sub-regulation (1) of DCR 58 provides for an approval of the Commissioner to a layout prepared for the development or redevelopment of the entire open land as well as built-up-area of the premises of a sick and/or closed textile mill. For the purpose of grant of sanction as regards change of user, the Commissioner may specify certain conditions as it may deem appropriate. Such an approval was sought to be a part of the measure of the package recommended by BIFR for the revival/rehabilitation of a potentially viable sick mill. Only if such conditions are specified, shall cause (a) apply which provides for change of user relating to existing built-up area." 16 Respondent No.3 by the impugned decision could revive its manufacturing activities with 10000 spindles which would provide employment to its workers and respondent No.3 could also pay the dues to its workers and could also pay back the financial institutions. The learned Advocate General further submitted that it is within the power of the Government of Maharashtra to take steps which are necessary for economic and social planning. No mala fides have been pleaded. There is no arbitrariness and the Regulations have not been violated. He submits that the learned amicus curiae has suggested alternatives. According to the learned Advocate General, may be there are alternatives but the Court cannot in appeal sit over the decision of the Government and say that there was better alternative and the Government should decide for that alternative. 17 6. The learned amicus curiae further submits that open spaces for a garden could not be de-reserved. Secondly, he submits that de-reservation was an environmental hazard. Thirdly, he contended that revival of a sick industrial unit cannot be at the cost of public interest. The workers' dues could be paid even by giving TDR to respondent No.3. He also contended that modification in the Plan by de-reserving was not in public interest and the balance of right was not proper as the State should have tilted towards the public good and public interest. He also contended that the Zoo was run by the Bombay Municipal Corporation and the Corporation had not taken any definite stand. In this connection, he relied on various Judgments of the Supreme Court. He refers to the Judgment in the case of Bangalore Medical Trust v. B.S. Muddappa and others, reported in (1991) 4 SCC 54, and particularly to para No.20 thereof 18 which reads thus: "20.Section 65 empowers the government to give such directions to the BDA as are, in its opinion, necessary for expedient for carrying out then purposes of the Act. It is the duty of the BDA to comply with such directions. It is contended that the BDA is bound by all directions of the government, irrespective of the nature or purpose of the directions. We do not agree that the power of the government under Section 65 is unrestricted. The object of the directions must be to carry out the object of the Act and not contrary to it. Only such directions as are reasonably necessary or expedient for carrying out the object of the enactment are contemplated by Section 65. If a direction were to be issued by the government to lease out to private parties areas reserved in the scheme for public parks and playgrounds, such a direction would not have the sanctity of Section 65. Any such diversion of the user of the land would be opposed to the statute as well as the object in constituting the BDA to promote the healthy development of the city and improve the quality of life. Any repository of power - be it the government or the BDA - must act reasonably and rationally and in accordance with law and with due regard to the legislative intent." 19 He has also relied on para No.24. The para No.24 reads thus: "24.Protection of the environment, open spaces for recreation and fresh air, playgrounds for children, promenade for the residents, and other conveniences or amenities are matters of great public concern and of vital interest to be taken care of in a development scheme. It is that public interest which is sought to be promoted by the Act by establishing the BDA. The public interest in the reservation and preservation of open spaces for parks and playgrounds cannot be sacrificed by leasing or selling such sites to private persons for conversion to some other user. Any such act would be contrary to the legislative intent and inconsistent with the statutory requirements. Furthermore, it would be in direct conflict with the constitutional mandate to ensure that any State action is inspired by the basic values of individual freedom and dignity and addressed to the attainment of a quality of life which makes the guaranteed rights a reality for all the citizens." 7. The learned Advocate General and the 20 learned counsel appearing for respondent No.3 submit that this Judgment would not apply to the case in hand because in Bangalore Medical Trust's case (supra), the Supreme Court was considering the power of the Government under Section 65 of the Bangalore Development Authority Act and Section 65 of the said Act empowered the Government to give directions to the Bangalore Development Authority which in its opinion were necessary and expedient for carrying out the purposes of the said Act. Therefore, the Supreme Court was of the view that the Government under sub-sections (5) and (6) of Section 19 of the Act could not give directions which were in conflict with the purpose of the Act. Therefore, the learned amicus curiae referred to para 30 of the same Judgment. Para 30 says thus: "30. In the circumstances, we are of the view that, apart from the fact that the scheme has not been validly altered by the BDA, it was 21 not open to the government in terms of Section 65 to give a direction to the BDA to defy the very object of the Act." The learned amicus curiae has also referred to another Judgment of the Supreme Court in the case of Virender Gaur and others v. State of Haryana and others, reported in (1995) 2 SCC 577. The facts of the case are summarised. The Municipal Committee had framed the Town Planning Scheme No.5. The Government of Haryana sanctioned that scheme on 30-10-1975. The appellant before the Supreme Court was the owner of a parcel of land which fell under the scheme. She surrendered 25% of her land to the Municipality which was a condition for sanction to construct her building. By operation of Section 61 of the Haryana Municipal Act, 1973, the land stood vested in the Municipality. The construction of the building had to be made in accordance with Section 203. The Government sanctioned for 22 the allotment of the land to a party on payment of price at the rates specified therein. The party paid the price and obtained sanction on 18-12-1992 for the construction of a Dharmashala. When the party started the construction, a writ petition was filed and an interim injunction was sought. The High Court declined to grant the injunction. Therefore, appeal was filed before the Supreme Court. The question in this case precisely was whether the Government could lease land to a private Trust which had vested in the Municipality and where the original owner had no right or title or interest thereafter. On surrender of 25% of the land by the original owner to the Municipality, the rest of the land by operation of law had vested in the Government and the Government had sanctioned a lease in favour of a Public Trust. In this factual position, the Supreme Court in para 11 of the 23 Judgment observed thus: "11. It is seen that the open lands, vested in the Municipality, were meant for the public amenity to the residents of the locality to maintain ecology, sanitation, recreation, playground and ventilation purposes. The buildings directed to be constructed necessarily affect the health and the environment adversely, sanitation and other effects on the residents in the locality. Therefore, the order passed by the Government and the action taken pursuant thereto by the Municipality would clearly defeat the purpose of the scheme. Shri D.V. Sehgal, learned Senior Counsel, again contended that two decades have passed by and that, therefore, the Municipality is entitled to use the land for any purpose. We are unable to accept the self-destructive argument to put a premium on inaction. The land having been taken from the citizens for a public purpose, the Municipality is required to use the land for the protection or preservation of hygienic conditions of the local residents in particular and the people in general and not for any other purpose. Equally acceptance of the argument of Shri V.C. Mahajan encourages pre-emptive action and conduct, deliberately charted out to frustrate the proceedings and to make the result fait accompli. We 24 are unable to accept the argument of fait accompli on the touchstone of prospective operation of our order." 8. Learned counsel for the respondent, on the other hand, submitted that basically the scheme of the MRTP Act is that the land reserved must be acquired. In this connection, he has drawn our attention to the language employed in Sections 49 and 126 of the MRTP Act and submits that both these sections need the State and the authorities to acquire the land once it is required. He relies on the Judgments of the Supreme Court in L. Hirday Narain v. Income-Tax Officer, Bareilly, reported in AIR 1971 SC 33 and State of Uttar Pradesh v. Jogendra Singh, reported in AIR 1963 SC 1618. In Hirday Narain's case (supra), the learned counsel has placed reliance on the sub-para of para 12. The said sub-para reads thus: 25 "The High Court observed that under Sec.35 of the Indian Income-tax Act, 1922, the jurisdiction of the Income-tax Officer is discretionary. If thereby it is intended that the Income-tax Officer has discretion to exercise or not to exercise the power to rectify, that view is in our judgment erroneous. Sec.35 enacts that the Commissioner or Appellate Assistant Commissioner or the Income-tax Officer may rectify any mistake apparent from the record. If a statute invests a public Officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid of enforcement of a right - public or private - of a citizen." In Jogendra Singh's case (supra), the learned counsel has relied on para 8. The said para 8 reads thus: "8. Rule 4(2) deals with the class of gazetted government 26 servants and gives them the right to make a request to the governor that their cases should be referred to the Tribunal in respect of matters specified in cls.(a) to (d) of sub- r.(1). The question for our decision is whether like the word "may" in R.4(1) which confers the discretion on the Governor, the word "may" in