1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CIVIL WRIT PETITION NO. 988 OF 2001 1. Smt. Indirabai Bhalchandra Bhajekar aged about 90 years, Occupation housewife, residing at Flat No. 13, Mohar Apartment, Kelkar Marg, Pune – 411 004. 2. Dr. Ashok Bhalchandra Bhajekar aged about 70 yrs., Occupation Retired, residing at Flat No.13, Mohar Apartments, Kelkar Marg, Pune – 411 003. 3. Smt. Nilima Arvind Raddi Residing at Nayantara “809” Shivaji Nagar, Bhandarkar Road, Pune – 411 004. ..Petitioners Vs. 1. The Pune Municipal Corporation having its office at Pune Municipal Corporation Bldg., Shivajinagar, Pune – 411 005 2. The State of Maharashtra, The Ministry of Urban Development Mantralaya, Mumbai. ..Respondents Mr. Mohan Pungaliya for petitioners. Mr. R.S. Khadapkar for respondent no.1. Mr. S.D. Rayrikar, AGP for respondent no.2. 2 CORAM: B.H.MARLAPALLE & SMT. ROSHAN DALVI,JJ. Reserved on : September 10, 2009. Pronounced on: October 09, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This petition filed under Article 226 of the Constitution prays for, (a) a declaration that Final Plot No. 103 in Town Planning Scheme, Pune No. III is reserved for parking and not for school, (b) directions to the respondents to forthwith allow the petitioners to develop their land for the purpose of reservation for parking, (c) quashing and setting aside the notice dated 2/12/1997 issued under Section 88-89 of M.R.T.P. Act, 1966 as being illegal, (d) quashing and setting aside the Resolution No. 94 passed on 29/6/2000 along with such further actions based on the same by respondent no.1-Corporation, (e) directions to the respondents to withdraw the proceedings if initiated under Section 37 of the M.R.T.P. Act to change the land use of parking on the subject plot, (f) declaration that the possession allegedly taken on paper of the subject plot by the Municipal Corporation is illegal, null and void and to restore the said possession in its original form. 3 2. The petitioners’ predecessor late Shri Bhalchandra Bhajekar was the owner of original Plot No. 109 (CTS No. 674), Ghorpade Peth, Pune and admeasuring 2724.9 sq.mtrs. and subsequently marked as Final Plot No. 103 admeasuring about 2306.6 sq.mtrs. and located within the limits of Haveli Taluka of Pune District. On the demise of Shri Bhalchandra Bhajekar on 28/10/1976, the names of original petitioners came to be entered as the owners of the suit plot. During the pendency of this petition, petitioner no.1 died and petitioner nos.2 and 3 are her legal heirs. In the year 1935, the plot was proposed to be reserved for a Municipal School under the Draft Town Planning Scheme and the same reservation was sanctioned by the Government on 1/4/1943 under the Bombay Town Planning Act, 1915. A development plan of Pune City was sanctioned on 15/8/1956. The Act of 1915 was replaced by the Bombay Town Planning Act, 1954 which came into force w.e.f. 1st April, 1957. Under the said Act, the draft development plan was sanctioned by the State Government on 15/8/1966. The Maharashtra Regional Town Planning Act, 1966 was brought into force by repealing and replacing the Town Planning Act, 1954 on 11th January, 1967. Under the Maharashtra Regional Town Planning 4 Act, 1966 (M.R.T.P. Act) an Arbitrator came to be appointed for framing the Draft Scheme, which was forwarded to the State Government for sanction in the year 1981 and in the said proposal the suit plot was shown reserved for a Municipal School. Under the said Act the State Government appointed the Director, Town Planning Scheme, Maharashtra State, Pune as a Special Officer for preparation of the Draft Revised Development Plan as the earlier sanctioned plan was to expire on 10th September, 1982 and it was published on 18/9/1982, in which the suit plot was proposed to be reserved for parking. The Draft Development Plan was scrutinized by the Government of Maharashtra and it was finally sanctioned on 5/1/1987. This decision was informed to respondent no.1-Corporation by the Urban Department of the Government of Maharashtra vide its letter dated 6/1/1987. However, at that time the proposal of Final Town Planning Scheme submitted in the year 1981 by the respondent no.1 – Corporation was pending with the State Government and it came to be sanctioned on 15/7/1989, whereas 15/9/1989 was the date fixed on which all the liabilities created by the Final Scheme were to come into force. Thus, in the Revised Development Plan sanctioned on 5/1/1987, the suit plot came to be reserved for parking, whereas in the Town 5 Planning Scheme sanctioned on 15/7/1989 and brought into force from 15/9/1989 the said plot was shown as reserved for Municipal School. It appears when the Final Town Planning Scheme was sanctioned on 15/7/1989, the Development Plan sanctioned on 5/1/1987 was not taken into consideration so far as it concerned the suit plot. 3. The petitioners were served with the notice dated 2/12/1997 issued by the Deputy Engineer of respondent no.1 purportedly under Section 89-90 of the M.R.T.P. Act and under Rule No.19-20 of the Maharashtra Town Planning Rules, 1974 contending that the said land was under reservation for a public purpose namely a municipal school as per the Town Planning Scheme, Pune No.III, as sanctioned by the Government of Maharashtra on 15/7/1989 and the petitioners were called upon to vacate the said land, to remove any structure or part of the structure and to make available the land to the Corporation, failing which the Corporation would take action under Section 89-90 of the M.R.T.P. Act. The petitioners also claim that they came across, subsequently, the submissions made by the Additional Commissioner of respondent no.1 – Corporation to its Secretary vide his letter dated 27/1/2000 by which there was a 6 proposal to hand over the suit plot to Shri Vasantdada Seva Sanstha so as to construct a Boys and Girls School and this proposal was made at the behest of one of the sitting Corporators. Similarly, another society by name Rajashree Shahu Maharaj Samaj Vikas Sanstha for backward classes had also made a demand in respect of the said land for construction of a Hostel and the Municipal Corporation was considering to hand over Final Plot No. 103 to one of these institutions on the basis of the reservation of Municipal School as set out in Town Planning Scheme – III. The petitioners claim that there was a contradiction between the notice dated 2/12/1997 and the letter dated 27/1/2000 regarding the reservation of the suit plot. The petitioners also contended that their representative Shri Avinash Jadhav had submitted an application to the respondent no.1 – Corporation with a request to communicate and confirm the user of the suit land and the Corporation by its letter dated 17/6/2001 informed that the user of the land was under reservation for parking and that the said land was partly affected by slum. However, the letter dated 27/1/2000 indicated a different reservation i.e. for Municipal School and the Corporation claimed that the suit plot had vested in the Corporation and it had taken over its possession, despite the 7 fact that the property card had shown the ownership of the petitioners all along and they were paying the property taxes to the respondent – Corporation till date. The petitioners also alleged that on 29/6/2000 Resolution No. 94 was passed by the Corporation to hand over the suit plot to a society by name Vasantdada Seva Sanstha for a period of 30 years and on the payment fixed by the City Engineer. This proposal, as per the petitioners, was at the behest of Shri Sanjay Balgude, one of the Corporators and the Corporation had no such authority unless the suit plot was acquired by the Corporation by following the procedure under Section 126 of the M.R.T.P. Act. 4. Affidavit-in-reply has been filed by the Junior Engineer working in the Development Plan Department of the respondent – Municipal Corporation so as to oppose the petition. It has been stated that (a) the petition does not make out any cause of action and, therefore, it deserves to be dismissed; (b) the arbitration proceedings were initiated for preparation of town planning scheme and the petitioner appeared before the arbitrator who gave his decision confirming the proposal for reservation of the subject plot for a municipal school and the same has not been challenged by filing an appeal under Section 8 74 of the MRTP Act; (c) consistent with the decision of the Arbitrator for reservation of the subject plot for municipal school, the town planning scheme came into force with effect from 15th September 1989 and the petition has been filed on or about 2nd February 2001 and, therefore, it suffers from gross delays / latches; (d) the petitioners were issued with a notice dated 2nd December 1997 under Sections 89 and 90 of the MRTP Act to hand over the possession of the suit plot and the possession has been taken over by drawing the panchanama on 13th May 1999. Consequently the suit plot has vested with the Corporation free from any encumbrances and, therefore, the petitioners have no locus standi to maintain the present petition as they have been divested of their title to the suit plot; (e) the notice dated 2nd December 1997 was challenged by one Shri Narayan Baykoba Kakade (a tenant on part of the suit plot) in Regular Civil Suit No.1088 of 1998 and the application for temporary injunction came to be dismissed by the trial Court on 25/11/1998. The said order was challenged in Misc. Civil Appeal No.468 of 1998 which was dismissed by the District Court on 9/4/1999. The plaintiff had approached this Court in Civil Revision Application No.446 of 1999 and it was rejected on 5/5/1999. Consequently the possession of the suit plot was 9 taken over on 13th May 1999; (f) the Corporation has approached the Government of Maharashtra under Section 37 of the MRTP Act for approval to the proposal for change of reservation i.e. from “parking” to “municipal school” as per the letter dated 24th December 2000 and in any case under Rule 14.4.1 of the Development Control Rules such a variation in reservation could be done by the Corporation by way of a General Body Resolution and subject to prior approval of the State Government. The Corporation contends that the petitioners have no title to the suit plot and the claim that they have been paying property taxes and the plot stands in their name even as of now in the Government / Municipal record has no consequence at all. It is contended that a letter dated 14th July 1999 was addressed to the City Survey Officer but it was replied on 11/11/1999 and the Corporation’s name has not been recorded. It is only a ministerial act and that by itself does not entitle the petitioners to claim that they still continue to be the owners of the suit plot. It is also emphasized that the town planning scheme approved by the Government vide its notification dated 15th July 1989 will prevail over the development plan sanctioned by the State 10 Government on 5th January 1987. 5. Affidavit in rejoinder has been filed on behalf of the petitioners explaining the delay caused in filing this petition with reference to the notice dated 2/12/1997 and it has been denied that that suit plot has vested with the Municipal Corporation. It has been pointed out that as per the resolution dated 8/11/1999 passed by the Education Board of the Municipal Corporation and as per the letter dated 29/6/2001 by the said Board, it is clear that in the vicinity of the suit plot there are eight schools and thus there is no requirement for one more municipal school. The petitioners have brought on record the property card of the suit plot as amended upto 1977 and it is stated in the affidavit dated 31st August 2009 that there is no change in the said property card even as of now. In the said property card the petitioners are shown to be the owners of the suit plot. 6. The Government of Maharashtra through the Deputy Director of Town Planning, Pune Division, Pune has filed an affidavit. It has been pointed out that the Arbitrator appointed under the MRTP Act is empowered to transfer the rights from the original plot to the reconstituted plot or 11 extinction of such rights as per Section 72(xiii) of the said Act. Affidavit refers to Section 101 of the MRTP Act as well and it has been pointed out that Original Plot No.109 became Final Plot No. 103 in the reconstitution of plots as per the decision of the Arbitrator and against the said decision no appeal under Section 74 of the MRTP Act was filed by the petitioners before the Tribunal and if no such appeal was filed, under Section 82(1) of the Act, the decision of the Arbitrator shall be final and binding on all the parties. The scheme finalized by the Arbitrator and approved by the Government shall have effect under Section 86(3) from the date of the notification issued and as per Section 88 of the MRTP Act all lands required by the Planning Authority shall vest absolutely in the Planning Authority free from all encumbrances. The affidavit further states that though the Corporation claims to have taken possession of Final Plot No.103 on 13/5/1999, the record of rights has not been changed. The affidavit in short supports the contentions of the Corporation. 7. At the first instance it requires to be noted that the suit plot has not yet been handed over to any educational society by the Corporation and from the order dated 2nd May 2001 passed in this petition it is clear that the Municipal 12 Corporation approached the State Government for modification of the Development Plan under Section 37 of the MRTP Act and till this day no such sanction has been received from the State Government and, therefore, the reservation of the subject plot is that of “parking” as per the sanctioned Development Plan and the proposal to change the reservation to a “municipal school” as per the sanctioned town planning scheme cannot be brought into force unless the modification submitted under Section 37 is approved by the State Government. 8. Though the petitioners have prayed for various reliefs as recorded hereinabove, we are required to consider only the following issues viz. (a) whether the reservation on the subject plot for parking continues to be operative despite the town planning scheme sanctioned by the State Government on 15/7/1989, (b) the validity and legality of the notice dated 2/12/1997 and (c) whether the Municipal Corporation can claim to have taken over the possession of the suit plot and that it has vested in the Corporation free from any encumbrances. The issue of quashing and setting aside Resolution No.94 passed by the Corporation on 29/6/2000 does not call for any consideration as admittedly the said resolution has not been acted upon and 13 prior permission of the Government to change the reservation from “parking” to “municipal school” has not been approved by the State Government. 9. So far as the arbitration proceedings are concerned Mr.Pungaliya fairly concedes that the arbitration proceedings were held sometimes in the year 1964 and the petitioners’ predecessor had participated in the same. It is also admitted that he received an amount of Rs.2000/- by way of compensation consequent to the said arbitration proceedings. Mr.Pungaliya clarified that the said arbitration proceedings were in respect of reconstruction / realignment of original Plot No.109 and while demarcating Final Plot No.103, the petitioner had lost some area and, therefore, the compensation amount was paid. He stoutly denies that there were any arbitration proceedings in which the petitioner had participated, qua the town planning scheme sanctioned in the year 1989 by the State Government and in any case the scheme so sanctioned cannot supersede the Development Plan finally approved by the State Government as per the communication dated 5/1/1987 received by the respondent – Corporation. As per Mr.Pungaliya the arbitration proceedings held in the year 1964 cannot be the basis in 14 support of the impugned notice dated 2/12/1997 and the subsequent paper possession claimed to have been taken of the suit plot by the respondent – corporation. He reiterated that unless the compensation is paid pursuant to the award passed, the suit plot cannot become the property of the Municipal Corporation and the arbitration proceedings relied upon by the Corporation were the proceedings only for reconstruction / realignment of the plots within the meaning of Section 72 of the Act. He submitted that final vesting within the meaning of Section 82 of the suit plot in favour of the Corporation can arise only if the arbitration proceedings were in respect of the reconstruction / re-lay out of the plots and whatever proceedings were held in the year 1964, the petitioners’ lost some area in the reconstruction of plot i.e. original Plot No.109 has been reconstructed to Final Plot No.103 and the petitioners were paid compensation. 10. Before dealing with the rival submissions between the parties and the authorities relied upon in support of the aforesaid contentions, it has become necessary to set our certain provisions of the said Act which require interpretation in the present petition. 15 Section 2(9) defines the development plan. Sections 30 and 31 provide for a draft development plan and sanction to the draft development plan. “2(9) “Development plan” means 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 proposal of a special planning Authority for development of land within its jurisdiction;” “30. Submission of draft-Development Plan. - (1) The Planning Authority or as the case may be, the said Officer shall submit that draft-Development Plan to the State Government for sanction within a period of twelve months from the date of publication of the notice in the Official Gazette regarding its preparation under section 26; Provided that, the State Government may, on an application by a Planning Authority or the said Officer by an order in writing, and for adequate reasons which should be recorded, extend from time to time the said period by such further period as may be specified in the order but not in any case exceeding twenty-four months in the aggregate. 16 (2) The particulars referred to in sub-section (2) of section 26 shall also be submitted to the State Government. “31. Sanction to draft-Development Plan. -(1) Subject to the provisions of this section, and not later than one year from the date of receipt of such plan from the Planning Authority, or as the case may be, from the said Officer, the State Government may, after consulting the Director of Town Planning by notification in the Official Gazette sanction the draft- Development Plan submitted to it for the whole area, or separately for any part thereof, either without modification, or subject to such modifications as it may consider proper, or return the draft-Development plan to the Planning Authority or as the case may be, the said Officer for modifying the plan as it may direct, or refuse to accord sanction and direct the Planning Authority or the said Officer to prepare a fresh Development plan; Provided that, the State Government may, if it thinks fit, whether the said period has expired or not, extend from time to time, by a notification in the Official Gazette, the period for sanctioning the draft Development plan or refusing to accord sanction thereto, by such further period as may be specified in the notification; 17 Provided further that, where the modifications proposed to be made by the State Government are of a substantial nature, the State Government shall publish a notice in the Official Gazette and also in local newspapers inviting objections and suggestions from any person in respect of the proposed modification within a period of sixty days from the date of such notice. (2) The State Government may appoint an officer of rank not below that of Class I officer and direct him to hear any such person in respect of such objections and suggestions and submit his report thereon to the State Government. (3) The State Government shall before according sanction to the draft-Development plan take into consideration such objections and suggestions and the report of the officer. (4) The State Government shall fix in the notification under sub-section (1) a date not earlier than one month from its publication on which the final Development plan shall come into operation. (5) If a Development plan contain any proposal for the designation of any land for a purpose specified in clauses (b) and (c) of section 22, and if such land does not vest in the Planning Authority, the State Government, shall not include that in the 18 Development plan, unless it is satisfied that the Planning Authority will be able to acquire such land by private agreement or compulsory acquisition not later than ten years from the date on which the Development plan comes into operation. (6) A Development plan which has come into operation shall be called the “final Development plan” and shall, subject to the provisions of this Act, be binding on the Planning Authority.” 11. The provisions of Town Planning Scheme are covered under Chapter V of the said Act. Section 59 provides for preparation and contents of the Town Planning Scheme. The said section reads as under: “59. Preparation and contents of Town Planning Scheme – (1) Subject to the provisions of this Act or any other law for the time being in force - (a) a Planning Authority may for the purpose of implementing the proposals in the final Development plan, prepare one or more town planning schemes for the area within its jurisdiction, or any part thereof; (b) a town planning scheme may make provision for any of the following matters, that is to say - 19 (i) any of the matters specified in section 22; (ii) the laying out or re-laying out of land, either vacant or already built upon, including areas of comprehensive development; (iii) the suspension, as far as may be necessary for the proper carrying out of the scheme, of any rule, by law, regulation, notification or order made or issued under any law for the time being in force which the Legislature of the State is competent to make; (iv) such other matter not inconsistent with the object of this Act, as may be directed by the State Government. (2) In making provisions in a draft town planning scheme for any of the matters referred to in clause (b) of sub-section (1), it shall be lawful for a Planning Authority with the approval of the Director of Town Planning and subject to the provisions of section 68 to provide for suitable amendment of the Development Plan.” Section 61 of the Act provide for publication of a draft scheme. The said section 61 reads as under :- “61. Making and publication of draft scheme by means of notice. - (1) Not later than twelve months from the date of the declaration, subject however, to sub-section (3), the Planning Authority shall in consultation with the Director of Town Planning, make 20 a draft scheme for the area in respect of which the declaration was made, and published a notice in the Official Gazette and in such manner as may be prescribed stating that the draft scheme in respect of such area has been made. The notice shall state the name of the place where a copy thereof shall be available for inspection by the public and shall state that copies hereof or any extract therefrom certified to be correct shall be available for sale to the public at a reasonable price. (2) If the Planning Authority fails to make a draft scheme and publish a notice regarding its making within the period specified in sub-section (1) or within the period extended under sub-section (3),