1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1180 OF 2009 1. Pramod S. Salvi, Salvi Bungalow, Shivajinagar, Ratnagiri 415 639. 2. M/s. Chowgule Industries Ltd., Having its registered address at Chowgule House, Marmugao Harbour, Goa 403 803. ..Petitioners. Versus 1. The State of Maharashtra , through the Department of Urban Development. 2. Director of Town Planning, Maharashtra State, Pune. 3. Deputy Director (Town Planning), 2 Konkan Bhavan, Navi Mumbai, District – Thane. 4. Town Planner, Ratnagiri Branch, Ratnagiri. 5. Ratnagiri Municipal Council, having its office at Jai Stambha, Ratnagiri, through its Chief Officer. ..Respondents. ... Mr.V.T. Tulzapurkar, Sr.Counsel i/b. Mr.V.P. Sawant, Advocate for the petitioners. Mr.R.P. Behere, Addl. G.P. for the respondent Nos.1 to 4 – State. .... CORAM : BILAL NAZKI, AND SMT.V.K.TAHILRAMANI,JJ DATE OF RESERVING THE JUDGMENT : 26TH JUNE, 2009 3 DATE OF PRONOUNCING THE JUDGMENT : 23RD JULY, 2009. JUDGMENT [PER SMT.V.K.TAHILRAMANI,J.] :- 1. The petitioners seek quashing of letter dated 25th August, 2008 issued by the Urban Development Department wherein the petitioners’ request for deletion of their plot from open space (EP-33) came to be rejected stating that there was no necessity to reconsider about EP-33. 2. Brief facts, which are not disputed, are as under : 3. The petitioner No.1 is the owner of the lands bearing Survey No.201, Hissa No.I-A 10 (earlier Survey No.190/A) situated at village Nachane, District – Ratnagiri. 4 4. The said lands admeasuring about 10,300 sq. mtrs. was purchased by petitioner No.1 from petitioner No.2 in the year, 1990 and petitioner No.1 is in possession of the said land since then. Out of the said open plot of land, petitioner No.1 handed over to Ratnagiri Municipal Council i.e. respondent No.5 an area admeasuring 1978 sq. mtrs. for municipal road and open space. 5. In the sanctioned Development Plan (DP) for Ratnagiri published in the year, 1974 an additional part of the said land admeasuring 3392 sq. mtrs. was shown as reserved for “Open Space”. The said DP came into force w.e.f. 13.1.1974. The said lands were not acquired under the provisions of the Maharashtra Regional Town Planning Act (hereinafter referred as “MRTP Act”). Thereafter, by its 5 Administrator’s Resolution dated 2nd May, 1984, the Ratnagiri Municipal Council made a declaration under Section 23(1) read with Section 38 of the said MRTP Act of its intention to prepare a Revised DP. A notice to that effect came to be published in the Government Gazette dated 7.6.1994. Thereafter a draft DP for entire Ratnagiri was published on 21.12.1993. Objections and suggestions to the said draft DP were invited by notice dated 30.12.1993. After considering all the objections and suggestions, the Ratnagiri Municipal Council decided to propose substantial modifications and published a notice to that effect. In the said draft DP, the Ratnagiri Municipal Council suggested the deletion of the reservation for Open Space shown in the previous sanctioned plan in respect of the petitioner’s land. 6 6. The draft DP was submitted by the Ratnagiri Municipal Council to the State Government for sanction, vide letter dated 30.12.1996. The State Government decided to make some modifications in the said plan as well as the DP Regulations and excluding some parts in which substantial changes have been made, granted sanction to the said DP and Development Control Regulations vide notification dated 27th April, 2000. As some of the modifications proposed by the State Government were of substantial nature, they were republished as required under Section 32 of the MRTP Act. These proposed modifications were republished in the Government Gazette dated 5th May, 2000 inviting suggestions and objections in respect of the substantial modifications. In these proposed modifications, 7 by Excluded Portion (EP) No.33, the State Government proposed to retain/reinstate the reservation shown on the plot of the petitioners in the draft plan, which was proposed to be deleted by the Ratnagiri Municipal Council. 7. The petitioners filed objections to the said proposed modifications proposed by the State Government. Respondent No.3 i.e. Deputy Director of Town Planning was appointed by the State Government for hearing objections. After considering the objections raised by the parties, respondent no.3 submitted his report, by his letter dated 23.2.2001, to the Government wherein he recommended that the change proposed by the State Government be maintained. 8. By notification dated 17.6.2004 the Government sanctioned 8 the substantial modifications in respect of Ratnagiri city as shown in the plan. 27.6.2005 was fixed as the date on which the modification of DP shall come into force. 9. However, prior to the notification dated 17.6.2004, petitioner No.1 was called for hearing before the Minister of State, Urban Deveopment Department with regard to the proposed modification / deletion of the reservation as suggested by Ratnagiri Municipal Council. Petitioner No.1 attended the meeting before the Minister of State in the month of June, 2002. The petitioner claims that he pointed out that the reservation on the said plot was not necessary in view of various objections raised by petitioner No.1 and in view of the fact that there was already open space around the plot. The petitioner also pointed out that substantial portion of the 9 land was handed over by the petitioner in past when required by the Council for the purpose of Municipal road and open spaces. The petitioner claims that on being convinced, he was assured that in view of the stand of respondent No.5, the land of the petitioners would not be reserved and that the modifications suggested would not be maintained. The petitioner claims that he was informed that the suggestions of respondent No.5 Council in the original draft plan for deletion of reservation would be accepted. A remark was also made by the concerned Minister of State on the file on 9.5.2002 stating that the reservation be deleted. Thereafter, the file was forwarded to the Chief Minister as Head of the Urban Development Department and according to the petitioner the Chief Minister on 8.8.2002 has accepted the 10 deletion of reservation mooted by respondent No.5 Council. 10. The grievance of the petitioners is that inspite of deletion of reservation being accepted by the State Government, the official notification published by the State Government shows that the lands of the petitioner are reserved for open space. In view of the fact that the concerned Minister of State as well as the Chief Minister had accepted deletion of reservation, the said decision was not given effect to and the final notification was published contrary to the record wherein the land of the petitioner is shown as reserved for open space. 11. An affidavit of the Principal Secretary to the Government, Urban Development Department bears out the case of the petitioner that the Minister of State, Urban Development 11 Department had recommended on the office-note of the file that “As per proposal of Ratnagiri Municipal Council the northern part of EP-33 be deleted”. However, it is stated that the Chief Minister had not accepted the recommendation of the Minister of State and endorsed “meeting” on the note. It is further stated in the affidavit that, the meeting was held on 21.5.2005. In the said meeting, the Chief Minister accorded sanction to EP (S.R. No.1 to 6) except EP-31. It is stated that there is no mention of EP-33 in the above approval. Therefore, when the petitioner No.1 again requested, vide letter dated 9.10.2005, to change the notification in respect of EP-33, reply was sent which was communicated to him by letter dated 25.8.2008 that there was no any necessity for reconsideration. 12 12. During the hearing, we also had an occasion to peruse the original files. Copies of the said files had already been annexed to the Petition, which copies have been obtained by the petitioners under Right to Information Act. On perusal of the files, it is noticed that the concerned Minister of State has made a remark thereon on 9.5.2002 stating that the reservation be deleted. Thereafter, the file was forwarded to the Chief Minister. The remark of the Chief Minister shows that as per the proposal submitted by the Ratnagiri Municipal Council the northern side area of EP-33 should be deleted. It is not disputed that the petitioner’s land falls in the northern side area. 13. On perusal of the file, a note is noticed which mentions that “The Hon’ble Chief Minister has granted permission to the 13 deleted areas EP of Ratnagiri City and to draft the notification of the said E.P. sanction and to prepare maps, it is necessary to send a file to Director, Town Planning, Maharashtra State, Pune.” This note clearly shows that changes sanctioned in the EP by the Chief Minister be sent to the Director of Town Planning for carrying out necessary changes in the DP. The instructions by the Chief Minister specifically state that “sanction change including change in EP-33 as recommended by the Minister of State and the plan of the plot has been attached herewith”. As per the further note put up by the Desk Officer, it appears that, the changes sanctioned by the Chief Minister have been carried out in the DP and the modified plan was sent to the Government for sanction by letter dated 25.8.2003. 14 14. The case of the State is that though the Minister of State Urban Development Department had recommended that northern part of EP 33 be deleted the Chief Minister had not accepted the recommendation of the Minister of State and in fact endorsed “meeting” on the file. It is evident that this endorsement of “meeting” pertains to representations received from other plot owners in respect of their plots. It appears that it was decided that the new representations would be considered after elections and it was directed in the note to put up after elections. It is clear that a modified plan was sent by the Director of Town Planning, by his letter dated 25.8.2003 which bears exclusion of the northern portion of EP-33. However, the plan was not immediately notified as new representations received from other plot 15 owners had to be considered. This is fortified by another note dated 16.6.2004 which asks for permission to fix a meeting to consider the other applications. 15. From the record, it appears that the matter pertaining to EP-33 in particular was never again considered by the Minister and there are no changes pertaining to the said sanction and the file pertaining to the DP was put up only for consideration for other representations / applications received thereafter. From the record, it is clear that the deletion of the reservation of the plots of the petitioners has infact been accepted and the proposed modification by the Directior of Town Planning had been dropped. In such case,while giving effect to all other changes, the change in respect of EP-33 should also have been given effect to, 16 which is specially mentioned in the instructions from the Secretary dated 13.8.2003. 16. The meeting held thereafter was held to consider EP-31 regarding inclusion or extension of densely populated areas. Letter of petitioner No.1 dated 9.10.2005 is also referred to. However, it appears that the concerned Desk Officer without any application of mind to the records has put up departments view and stated that while deletion of reservation No.EP-33 was sanctioned by the Chief Minister earlier, in the meeting held on 21.5.2005, the Chief Minister has not granted sanction to EP-33 and that no fresh sanction was given to EP-33 and thus no sanction is obtained by the Minister of State to the proposal of the Department. This observation by the Desk Officer is clearly 17 erroneous and contrary to the record. From the file, it is clear that the matter regarding EP-33 was complete with the sanction dated 8.8.2002 and the Director of Town Planning had also submitted the DP under his letter dated 25.8.2003 after effecting changes to that effect for final approval. The final approval was kept pending till after the election only for consideration of other matters such as other representations received as mentioned in the note dated 22.8.2003. From the note pertaining to meeting dated 21.5.2005 with the Chief Minister, it is apparent from the notings on the file that the sanction was also given to the modified plan as submitted by the Director of Town Planning and that only matters pertaining to EP-31 were pending. 18 17. As far as reservations for open space is concerned, it is seen that there was already open space available around the plot. Petitioner No.1 had already handed over substantial portion of his land in the past when required by respondent No.5 Council for the purpose of municipal road and open space. Respondent No.5 Council had passed a resolution and pursuant thereto in the draft DP published for Ratnagiri on 21.12.1993 had proposed deletion of the reservation for open space shown in the previous sanctioned plan in respect of the petitioners’ land. The Deputy Director of Town Planning submitted his report recommending that the reservation be maintained. In the said report, it is observed that petitioner No.1 had earlier handed over some land without compensation for public purpose. In the said report, 19 the view of respondent No.5 Council is also recorded which suggest that the land need not be reserved. However, it is noticed that the report does not at all examine the actual or bonafide need for reserving the land as open space and makes no comment or recommendation on that basis. Remarks in Exhibit-F which is an extract from the file clearly shows the remarks for deletion of the reservation by the Minister of State dated 9.5.2002 and acceptance of the remarks by the Chief Minister dated 8.8.2002. In view of these clear remarks by the Minister of State as well as Chief Minister, the matter ought to have rested there and the changes ought to have been carried out in the final notification i.e. the reservation on the plot of the petitioners ought to have been deleted. It is strange to note that despite 20 the above mentioned notings by the Minister of State and the Chief Minister these notings have been misunderstood by the Desk Officer due to which the final notification does not show deletion of reservation on the plot of the petitioners. 18. The notings of the Minister of State and Chief Minister are clear. They speak of deletion of reservation in respect of land of the petitioner. Despite this, respondent No.1 has not given effect to the decision and order of the Minister to accept the suggestions of the Municipal Council and reject the modification to retain the reservation of open space in respect of the land of the petitioner. The action of respondent No.1 is contrary to the record and suffers from non-application of mind. It is clearly contrary to the Government’s decision. In this view of the matter, the letter 21 dated 25th August, 2008 issued by respondent No.1 is quashed and set-aside. 19. In view of all the above facts, we are of the opinion that the file should be placed before the Hon’ble Chief Minister. Accordingly the file be placed before the Hon’ble Chief Minister within one week from today. 20. Writ Petition is disposed of accordingly. [BILAL NAZKI,J] [SMT.V.K.TAHILRAMANI,J.]