Case: Mafatlal Industries Limited &amp; Another Vs. State of Maharashtra Through Its Ministries Revenue &amp; Forest &amp; Urban Development &amp; Others

of their rights, that this principle would come into play. This is enshrined in Article 300A of the Constitution of India. In that event, even the guarantee of equality flowing from Article 14 of the Constitution of India is breached and violated. This is not a case of that nature. This is a case where the requirement of the land for a predesignated public purpose is fulfilled by balancing the rights and equities of the petitioners as lessees of Government land or public properties. Pertinently, the petitioners are not challenging the power of the State Government to make a conditional modification in the Development Plan or proposal. The power flowing from the substantive provisions of the MRTP Act can be exercised unconditionally or by imposing terms and conditions consistent with the object and purpose of the MRTP Act. Even the conditions of the Notifications are not challenged. It is but a reading and construction thereof to their advantage which is attempted by the petitioners in this petition. Once we find that such an attempt cannot succeed, then, no relief can be granted to the petitioners, particularly in terms of the prayers set out hereinabove.77. None of the decisions cited by Mr. Khambata would assist the petitioners.78. In those decisions, the controversy was entirely different. The ambit and scope of powers conferred by Section 37 of the MRTP Act was in issue in Pune Municipal Corporation V/s. Promoters and Builders Association (supra). The principle of estoppel and particularly promissory estoppel was pressed into service but even that attempt was not successful because the principles of promissory estoppel cannot be invoked against statutes. The backdrop in which all these issues arose for determination and consideration are totally different and distinct. The question was whether the State Government can make any changes on its own in the modifications submitted by the Planning Authority or not. It is answering that issue in favour of the Pune Municipal Corporation and rejecting all the arguments to the contrary that this Judgment was rendered. Far from assisting the petitioners before us, some of the observations in this Judgment would militate against the contentions of Mr. Khambata.79. In the case of Godrej And Boyce Manufacturing Company Limited (supra), the facts were peculiar. The plots of the appellants and the petitioners therein were shown in the Development Plan as reserved for roads. They voluntarily surrendered their lands. They constructed on their respective pieces of land the development plan roads at their own cost and as per the specifications stipulated in the relevant rules. This was in addition to the voluntary surrender. The dispute between the parties was limited to the question of extent of floor space index (FSI) or transferable development rights (TDR) for the roads constructed on the surrendered lands at the owners cost. The land owners claimed a certain FSI or TDR and relied upon para 6 of Appendix VII to the Development Control Regulations for Greater Bombay, 1991. The Municipal Corporation, however, relied on a circular issued on 9-4-1996 and restricted the additional TDR only to the extent of 15% of the road area. The argument of the petitioners was that the contents of this circular were merely in the nature of executive instructions and could not supersede or override the provisions of the DC Regulations which were legislative in nature.80. It is in such a controversy that the issue arose as to whether this was a correct understanding of the State and the Municipal Corporation, or whether the petitioners were right. Holding that the contentions of the petitioners are of substance, their case came to be accepted. The observations relied upon by Mr. Khambata cannot be read in isolation but must be read in the backdrop of this essential question or controversy. We do not see how then can the petitioners claim any relief based on this Judgment. This Judgment is, therefore, entirely distinguishable.81. We do not see how the other Judgments, and particularly that rendered in the case of Pepsico India Holdings Private Limited (supra), would assist the petitioners. The Pepsicos was a case where the doctrine of promissory estoppel was invoked so as to rely upon a concession/exemption/incentive/rebate in sales tax. The argument was that Pepsico has taken effective steps for acquiring or placing firm orders for the purchase of the necessary plant and machinery under the Notification dated 3-11-1993, issued under the industrial policy of the State of Kerala. Therefore, it was entitled to the relief in terms of the Notification, namely, exemption from sales tax for a certain period. Its entitlement was thus upheld and the State was prevented from denying the benefit of this exemption Notification to it. We have no such case before us.82. Equally, the other Judgment in the case of Pune Municipal Corporation V/s. Kausarbag Cooperative Housing Society Limited (supra) is distinguishable. It may be discussing the concept of TDR and that can be offered in lieu of cash compensation and the issue was whether the land in question was shown as reserved for garden in the layout plan. The acquisition of the land was initiated under the provisions of the Land Acquisition Act, 1894 and was completed in the year 1987 whereafter possession of the land was taken over on 19-2-1987. Thereafter, the Development Plan was sought to be prepared and published and in the draft of which the land was shown as an existing garden. It is in these circumstances that the petitioners claimed that their entitlement to TDR cannot be defeated by such an attempt and urged that the land was acquired under a non-developmental proposal and the same would not attract the provisions of the MRTP Act. It is in these circumstances that the writ petition by Kausarbag Cooperative Housing Society Limited was allowed by the High Court and the appeal preferred from the Judgment of this Court was dismissed. This case is also distinguishable.83. We do not think that the other Judgments in the compilation are of any assistance to the petitioners.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]A perusal of this Notification leaves us in no manner of doubt that land admeasuring 58,197.97 square metres out of City Survey No.593 of Mazgaon Division, styled as the said land, may have been termed in this Notification to be owned by M/s. Mafatlal Industriesland is reserved for extension of VJB Udyan as per the proposals of the Development Plan of E Ward sanctioned by the Government onOn that land is located a cotton textile mill unit. This reservation continued after the term of the Development Plan of 1967 was over. In the earlier plan also, the land was reserved for extension to VJB Udyan, and in the revised Development Plan published under Section 26 of the MRTP Act and submitted to Government under Section 30 of the MRTP Act by the MCGM, the reservation was deleted from that land and it was placed in retention activity. However, while according sanction by the State Government to the revised Development Plan ofthe said land was kept reserved for the said purpose. The cotton textile mill was a running industry upto June, 2000, after which, taking into consideration the financial constraints faced by the company and the complete erosion of itsleading to closure of its activities, the unit of the said company was declared sick by the Board of Industrial and Financial Reconstruction (BIFR for short) under the provisions of the Sick Industrial Companies (Special Provisions) Act, 1985.70. What is relevant and material for our purpose is that it is this textile unit/company which approached the Government with a proposal to commercially exploit its lands at Lower Parel and Mazgaon so as to generate funds and from these funds generated pursuant to the development of these lands, to partially revive the said mill and to pay its various dues. The company, therefore, requested that the reservation be deleted. It said that it intends to carry out development in accordance with Regulation 58 of the DCR, 1991, as modified in the year 2001.71. The entire issue was examined with reference to the possible development of the said land as per the proposals of the Development Plan visavis the revival scheme of the said mill as envisaged by the said company. The Government was of the view that after the revival scheme is approved by the BIFR, that will restore the viability of the said mill and also enable it to pay various dues, including labour dues. That would also help to some extent to protect the job of workers of the said mill. However, for this purpose it is necessary that the said land is released from the reservation and placed in retention activity.72. In these circumstances, after considering all the facts and related issues, the Government, in larger public interest, found it expedient to take necessary steps to promote the implementation of the revival package of the said company and for that purpose the Government found it expedient to delete the said reservation conditionally and placed the deleted land as retention activity after following the procedure laid down under Section 37 of the MRTP Act. In the Notification itself it is clarified that the deletion of the reservation would be conditional. It is necessary that a condition be imposed on the petitioners that after deletion, the land shall be developed scrupulously in accordance with the provisions contained in the modified Regulation 58 of the DCR, 1991, as also as per the package of measures, as may be approved by the BIFR in accordance with law. That is why the Government in exercise of the powers vested under Section 37(1) of the MRTP Act, vide order of even number datedhad directed the MCGM to delete the said reservation from the said land and designated the said land so deleted as retention activity. The MCGM was therefore directed to comply with the requirements of Section 37 of the MRTP Act but it failed to publish the requisite notice within the stipulated period of 60 days. That is how the Government of Maharashtra relied upon its powers under Section 37(1A) of the MRTP Act and issued the notice datedregarding proposed modification, and thereby invited suggestions/objections from the general public within a period of one month from the date of publication of the notice in the Official Gazette and it appointed the Deputy Director of Town Planning, Greater Mumbai, as officer, to submit his report to the Government. That would be regarding the suggestions/objections that may be received after the expiry of the period stipulated in its notice. Thus, this notice was published in the Government Gazette onand prior thereto in two newspapers.A careful perusal of this Notification leaves us in no manner of doubt that total deletion of the reservation was not accepted. There was already a Zoo in existence and its extension was required in public interest. That was also necessary for carrying forward the purpose of the Development Plan. It is in these circumstances that the Government of Maharashtra decided to retain the reservation by extension to VJB Udyan but restricted it to the extent of 50% of the land. It decided to release the remaining land from this reservation so as to enable the company to develop the property in order to satisfy the dues of the workers and other dues. This Notification itself records the fact that the company has agreed to handover the reserved land on noncash compensation basis.75. The Government, therefore, exercised its powers under Section 37(2) of the MRTP Act and sanctioned the modification, subject to conditions. If one reads the operative part of this Notification and under the heading/title MODIFICATION, it is evident that the conditional modification cannot be read in the manner suggested by Mr. Khambata. If the conditions are perused in totality or read together and harmoniously, it is evident that had it not been for this partial deletion by the Government, the reservation on the said land would have continued. Thus, the entire land would then have continued under reservation for the public purpose of extension of VJB Udyan. It was then not possible to use the land or develop it for any other purpose, save and except the notified one. If the total deletion of the reservation was sought by the petitioners, but that was not agreed upon and even the partial deletion is conditional, then, the petitioners cannot pick one of the terms and conditions and read it in isolation or to their benefit. If this modification to the Development Plan had not been granted and in the form issued by the State Government, then, it was not possible for the petitioners to develop the land under Regulation 58 of the DCR, 1991 and to the extent of 50% as per this Notification. That it can be developed under this Regulation by styling the petitioners as owners is only to enable them to get the benefit or advantage of the DC Regulation 58. That is specifically inserted in the DC Regulations to enable obtaining of FSI which is attached to the lands in use and possession of textile units/mills in Greater Mumbai. It is only after partial release from the reservation in terms of the Development Plan, that the petitioners could have developed the land to the extent of 50% and as permitted above, and utilised the funds generated from the development of land so released from reservation primarily for adjustment of dues of workers and also for payment of its outstanding dues of financial institutions, as stipulated by the BIFR. Thus, to implement and execute so also enforce the BIFR revival scheme, that this modification in the Development Plan has been made. The condition is to recommence the spinning activity of 10,000 spindles, as stipulated in the BIFR scheme.76. The basic premise on which Mr. Khambatas arguments are canvassed is fallacious and incorrect. The subject Notification is not the one acquiring the private property for public purpose under the sovereign power founded on the right of eminent domain vesting in the State. The subject Notification, as held above, is for effecting a major modification in the sanctioned Development Plan by exercising a statutory power conferred vide Section 37 of the MRTP Act, 1966. That modification is sanctioned conditionally. This is not to be confused with a power to acquire some interest in the land. The land to the extent released is the consideration based on which the rest of the land already under lease with the petitioners can be developed or redeveloped to the fullest by reaping the fruits of D.C. Regulation 58. That allows a land leased for industrial purpose to a textile mill to be redeveloped in terms thereof so that its potential in the market can be exploited to the maximum. It was not possible unless the reservation for public purpose is deleted. For deletion of that alone, partially, the subject Notification is issued. The ownership of the land admittedly vests in the State. The State is not required to acquire its own land. It cannot take recourse to the power of acquisition under the Land Acquisition Act, 1894 or the law now prevailing enabling acquisition of a private land or any interestis not the situation before us at all. The condition based on which the balance of 50% of the land released from reservation could have been developed in terms of the BIFR scheme is that the rest of it continues under reservation for extension of VJB Udyan and to that extent the land, as demarcated, would have to be handed over free of encumbrances on noncash compensation terms to the MCGM, then, it is evident that there is no question of any compensation to be awarded either way. Meaning thereby, either in cash or noncash basis. There is nothing emerging from this Notification which the petitioners can seek, much less as of right from the MCGM. The whole petition to this extent is misconceived. It is as if the petitioners claim to be absolute owners of the land and that they are being deprived of its use, enjoyment and benefits because of the surrender thereof in part for use by the MCGM that they should be compensated, is the foundation of the petitioners case. That foundation itself has no legal support. The petitioners are neither absolute owners nor they have such right as they can seek to enforce against the MCGM. They are not deprived of their property or kept out of its enjoyment by a procedure unknown to law. This is, therefore, not a case where a person is being deprived of his property, save by authority of law. All those cases in which a person is deprived of his property, save by authority of law, are clear. In those cases, the State Government or the Planning Authority by a mere designation or reservation of lands for a public purpose, but without acquiring them in accordance with law, deprive the owners thereof of their rights, that this principle would come into play. This is enshrined in Article 300A of the Constitution of India. In that event, even the guarantee of equality flowing from Article 14 of the Constitution of India is breached and violated. This is not a case of that nature. This is a case where the requirement of the land for a predesignated public purpose is fulfilled by balancing the rights and equities of the petitioners as lessees of Government land or public properties. Pertinently, the petitioners are not challenging the power of the State Government to make a conditional modification in the Development Plan or proposal. The power flowing from the substantive provisions of the MRTP Act can be exercised unconditionally or by imposing terms and conditions consistent with the object and purpose of the MRTP Act. Even the conditions of the Notifications are not challenged. It is but a reading and construction thereof to their advantage which is attempted by the petitioners in this petition. Once we find that such an attempt cannot succeed, then, no relief can be granted to the petitioners, particularly in terms of the prayers set out hereinabove.77. None of the decisions cited by Mr. Khambata would assist the petitioners.78. In those decisions, the controversy was entirely different. The ambit and scope of powers conferred by Section 37 of the MRTP Act was in issue in Pune Municipal Corporation V/s. Promoters and Builders Association (supra). The principle of estoppel and particularly promissory estoppel was pressed into service but even that attempt was not successful because the principles of promissory estoppel cannot be invoked against statutes. The backdrop in which all these issues arose for determination and consideration are totally different and distinct. The question was whether the State Government can make any changes on its own in the modifications submitted by the Planning Authority or not. It is answering that issue in favour of the Pune Municipal Corporation and rejecting all the arguments to the contrary that this Judgment was rendered. Far from assisting the petitioners before us, some of the observations in this Judgment would militate against the contentions of Mr.observations relied upon by Mr. Khambata cannot be read in isolation but must be read in the backdrop of this essential question or controversy. We do not see how then can the petitioners claim any relief based on this Judgment. This Judgment is, therefore, entirely distinguishable.81. We do not see how the other Judgments, and particularly that rendered in the case of Pepsico India Holdings Private Limited (supra), would assist the petitioners. The Pepsicos was a case where the doctrine of promissory estoppel was invoked so as to rely upon a concession/exemption/incentive/rebate in sales tax. The argument was that Pepsico has taken effective steps for acquiring or placing firm orders for the purchase of the necessary plant and machinery under the Notification datedissued under the industrial policy of the State of Kerala. Therefore, it was entitled to the relief in terms of the Notification, namely, exemption from sales tax for a certain period. Its entitlement was thus upheld and the State was prevented from denying the benefit of this exemption Notification to it. We have no such case before us.82. Equally, the other Judgment in the case of Pune Municipal Corporation V/s. Kausarbag Cooperative Housing Society Limited (supra) iscase is also distinguishable.83. We do not think that the other Judgments in the compilation are of any assistance to the petitioners.