1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO.6162 OF 2006 1.Vasant Gangaram Mhaske ] Aged 68 years ] ] 2.Arvind Gangaram Mhaske ] Aged 62 years ] ] 3.Vijay Gangaram Mhaske ] Aged 59 years ] ] 4.Smt.Sulabha Sumant Shelke ] Aged 55 years ] ] 5.Smt. Sunanda Ramkrishna Rahane ] Aged 59 years ] ] 6.Smt. Kamla Pandharinath Thitme ] Aged 59 years ] ] 7.Smt. Shashikala Niwruti Choudhari ] Aged 57 years ] through Power of Attorney holder ] Shri Vishwas Vasant Mhaske ] Residing at Pallavi Nursari ] Lok Gram Road, Ambarnath ] Tal: Ambernath, Dist: Thane. ]..Petitioners Versus 1.The Chief Planner Mumbai ] Metropolitan Region Development ] ] 2 Authority Bandra Kurla Complex ] Bandra (E), Mumbai-400 051 ] ] 2.Dy. Chief Planner Mumbai ] Metropolitan Region Development ] Authority Divisional Office ] Tilak Chowk, Kalyan. ] ] 3.Chief Officer Ambernath ] Municipal Council Ambernath ] Tal: Ambernath, Dist: Thane ] ] 4.State of Maharashtra ] Through its Principle Secretary ] for Urban Development at ] Mantralaya, Mumbai. ]..Respondents Mr.Y.S. Jahagirdar, Senior Council with Mr. Atul G. Damle for Petitioners Mrs. M.P. Thakur, A.G.P for Respondent No.4 Mrs. Kiran Bagalia for Respondents 1 & 2 Mr. Balakrishna Joshi for Respondent No.3 CORAM: SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of reserving the Judgment : 5th March, 2008 Date of pronouncing the Judgment: 9th June, 2008 JUDGMENT (Per Smt. Roshan Dalvi, J.) 1. Rule. Respondents waive service. By consent of the parties taken up for hearing forthwith. 3 2. The petitioners are the co-owners of the land situated at Survey No.166 part, bearing C.T.S.No.8873B admeasuring 22382 sq. yds. = 18717 sq. mtrs. Respondents 1 and 2 are the Planning Authorities. Respondent No.3 is the Chief Officer of Municipal Council. Respondent No.4 is the State Government entitled to make modifications to the plans made by the Planning Authority. 3. According to the petitioners a draft development plan was notified vide Notification dated 10th May, 2001, in which the petitioner' s land was shown as reserved for public purpose. The petitioners submitted their objections to the same. By letter dated 1st October, 2002 the petitioners' power of attorney holder Vishwas Mhatre was informed that he should remain present for hearing on 9th October, 2002 and, if he is unable to remain present he should keep his representative present with relevant papers. 4. Objections were filed on behalf of the petitioners. The petitioners were called for personal hearing. The petitioners attended the personal hearing. The petitioners were informed by respondents 1 and 2, i.e., the Special Planning Authority that their objections were upheld and the draft 4 development plan is suitably amended vide letter dated 29th December, 2005. 5. The Special Planning Authority had, in the meantime, submitted the revised draft development plan for notified area under Section 30 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act for short) to State Government for sanction. 6. By Notification dated 25th July, 2005 issued under Section 31(1) of the MRTP Act, the State Government accorded sanction to the draft development plan subject to the modifications appended to the notification as Schedule I, excluding certain parts as stated in Schedule II in which modification of substantial nature had to be made. 7. The basic grievance of the petitioners is that Respondent 4 i.e., the State Government has not followed the provisions of Section 31, more particularly Section 31(2) of the MRTP Act while modifying the draft development plan which was prepared by respondent 3, after considering objections of all concerned. 8. It is submitted across the bar by learned Counsel for the 5 petitioners that the petitioners' land is mentioned in Schedule II which contains excluded parts where modification of a substantial nature has to be made and, therefore, it was obligatory on the State Government to follow procedure prescribed under Section 31(1). It must be stated here that in the entire Petition there is no averment to the effect that the petitioners' land is shown in Schedule II. Consistent stand of the respondents is that the petitioners' land is shown in Schedule I. Two affidavits in reply have been filed to that effect. The petitioners have not refuted this stand by filing affidavit in rejoinder. 9. In any case, we will examine the contention that procedure contemplated under Section 31(1) & (2) was required to be followed and was not followed in this case. 10. In his affidavit dated 21st February, 2008, Prakash Ravirao, Town Planner from the office of the Deputy Director Town Planning, Konkan Division has stated that after considering the objections of the petitioners, respondent 1 had changed the alignment of 24 M wide road alongwith Western boundary of the petitioners' land and reduced the reservation area as per Modification No.44, while submitting the draft development plan under Section 30(1) of the MRTP 6 Act to the 4th Respondent. The modification proposed by the 1st respondent was set aside by the 4th respondent as the proposed road alignment was not proper from traffic point of view and also because the proposed road alignment was affecting the green belt along with the existing nalla. It is further stated in the affidavit that in order to keep the green belt along with the existing nalla in tact and to ensure proper road network and junction in the interest of public, the 4th respondent has reinstated the reservation as per sanctioned modification. It is further stated that reinstatement of the alignment of the road as reservation as per the proposal published under Section 26 of the MRTP Act does not require it' s republishing for suggestions/objections as contemplated in Section 22A of the MRTP Act. 11. In short, what is stated in the affidavit is that the 4th respondent reinstated the reservation and since the proposal in respect thereof was earlier published and all formalities were carried out there was no question of republishing it under Section 31(2) and giving opportunity of hearing to the petitioners. 12. We must also refer to Section 22A which states what is 7 meant by modification of a substantial nature. As per Section 22A modification of substantial nature inter alia means reduction of more than fifty per cent or increase by ten per cent in area of reservation. In his affidavit dated 10th December, 2007, Shri Ravirao has stated that the land of the petitioners is reserved for the purpose of Recreational Open Space vide Site No.167 and 24M wide Development Plan roads published under Section 26 of the MRTP Act. These reservations are retained by the Government under Section 31(1) vide Notification dated 25th July, 2005, only by changing designation of the reservation as Flowing Green Garden instead of Recreational Open Space. Hence, there is no reduction of more than fifty per cent or increase by ten per cent in area reservations in the concerned Planning Unit No.17 of Ambernath City and therefore, Sub-section 22A(a) is not attracted. This affidavit clearly indicates that the modification about which grievance is made is not of a substantial nature. We have no reason to disbelieve this statement. 13. Even if the Petitioners' contention that their land is included in Schedule II which contains excluded parts is accepted, a notice was issued on the same day i.e. 25th July, 2005 under Section 31(1) inviting objections. This has been 8 so stated by Shri Vinod Dawle, Chief Officer, Ambarnath Municipal Council, Ambarnath, Thane. It was open to the petitioners to submit their objections to the said notice. Instead of submitting objections the petitioners have filed the present petition almost one year after the notification i.e., on 20th July, 2006. Shri Ravirao has in his affidavit stated that after following due procedure prescribed under the MRTP Act, the State Government has accorded final sanction (partly) to the draft development plan under Section 31(1) of the MRTP Act and it has come into force. In our opinion, in view of this statement, the petition cannot be entertained. 14. The petitioners have placed reliance on Dina Sohrab Hakim & Anr. Vs. State of Maharashtra & Anr. 2002(2) Maharashtra Law Journal 851. In that case in the Draft Revised Development Plan forwarded by the Planning Authority to the State Government, the property in question was not reserved for any public purpose. The State Government did not agree with the Planning Authority. The State Government modified the Draft Revised Development Plan by reserving the property in question for recreation ground. The said notification was challenged on the ground that no notice as required under second proviso to Section 31(1) of the MRTP Act was published by the State 9 Government inviting objections and suggestions to the said reservation and therefore, the notification is bad in law. This Court held that the State Government by reserving the property in question for recreation ground which was not proposed by the Planning Authority has made modifications of a substantial nature in the Draft Revised Development Plan. This Court held that it was incumbent upon the State Government to publish a notification in the Government Gazette and also in the local newspaper inviting objections and suggestions. This Court held that the procedure prescribed in second proviso to Section 31(1) was mandatory in character and therefore, the modification made by the State Government in the Draft Revised Development Plan was vitiated. 15. Facts of the present case materially differ from the facts of Dina Sohrab case (supra). We have already quoted extensively from the affidavit of the Town Planner Shri Ravirao. He has inter alia stated that reservations on the petitioners' land are retained vide Notification dated 25th July, 2005. There is only change in the designation of the reservation as Flowing Green Garden instead of Recreational Open Space. There is no reduction of more than fifty percent or increase by ten percent in area of reservations in the 10 concerned Planning Unit. Thus, the modification is not of substantial nature. Ratio of Dina Sohrab's case will, therefore, not be applicable to the present case. In any case as stated by Shri Dawale, Chief Officer, Ambarnath Municipal Council, Government of Maharashtra, vide notice dated 25th July, 2005 had invited objections and suggestions. Therefore, Dina Sohrab's case has no application to the present case. 16. In the circumstances in our opinion there is no substance in this. The petition, therefore, fails and is dismissed. (SMT. ROSHAN DALVI, J.) (SMT.RANJANA DESAI, J.)