Important point
There is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose.

Headnote:Maharashtra Regional and Town Planning Act, 1966—Section 26(1)—Bombay Town Planning Act, 1954—Notification dated 12.2.1993 whereby an area admeasuring 1.50 acres of land was de-reserved—Public interest litigation filed by residents of Salisbury Park and persons living around that area challenging the notification—In the development plan Plot Nos. 437 and 438 were earmarked for purposes of park and garden—Plot No. 438 originally belonged to respondent 3 and she did not object to the reservation of the plot for the garden—This plot was then purchased by appellants at a throw away price—The plot was then de-reserved which has been challenged—Adjacent plot No. 437 measuring 2.00 acres was acquired and a garden was developed—Plot No. 438 though earmarked as garden in the development plan in 1966 but it was not acquired and it remained a private property—Construction has already been completed on sub plot Nos. 4, 5, 6 and 7 of plot No. 438—Dispute regarding sub plot Nos. 1, 2, 3 and 8 and 9 on the plot—Whether the Government can prepare a development plan and deprive the owner of the land from using that land—(Yes)—Whether without acquiring the land can the Government deprive a person of his use of the land—(No).
       Held : There is no prohibition of including private land in a development plan but no development can be made on that land unless that private land is acquired for development. The Government cannot deprive the persons from using their private property. We quite appreciate the interest of the residents of that area that for the benefit of the ecology, certain areas should be earmarked for garden and park so as to provide fresh air to the residents of that locality. In order to provide such amenities to the residents of the area private land can be acquired in order to effectuate their public purpose but without acquiring the private land the Government cannot deprive the owner of the land from using that land for residential purpose. In the present case, it is clear that Plot No. 438 belonged to the private person and it was shown as a garden in the development plan of 1966. But no effort was made by the Municipal Corporation or the Government to acquire this plot for the purpose of developing it as a garden. When it was not acquired for the purpose of garden, the owner of this land i.e. the appellants moved the Government for de-reserving this land and the Government after resorting to necessary formalities de-reserved the land by the impugned notification. All the procedures which were required under the 1966 Act were observed, the notification was issued inviting objections against de-reservation. No objection was filed by the residents of the area and ultimately a proposal was put up before the Municipal Council it also resolved that Municipal Council is not in a position to acquire the land because of the financial crunch and accordingly, the Government was intimated. Government accordingly de-reserved it and consequently, issued the impugned notification dated February 12, 1993. When finally the notification came to be published on February 12, 1993 the residents of the area woke up and brought about this public interest litigation. Section 37 of the 1966 Act empowers the Government for modification of the final development plan. (Para 3)
       In the present case, though the development plan has been prepared in the year 1966 and the area has been earmarked for the purpose of garden but no proceeding for acquisition of the present plot was ever initiated by the respondent-Municipal Corporation or by the State Government. There is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose. In the present case, the area comprising in the plot No. 438 belonged to the appellants and that no steps were taken to acquire the said land by the State Government or by the Municipal Corporation of Pune and the Municipal Corporation had already expressed their inability to acquire that land and therefore, the said land has been de-reserved by the State Government. (Para 3)
       The question is whether without acquiring the land can the Government deprive a person of his use of the land? This in our opinion, cannot be done. It would have been possible for the Municipal Corporation and the Government of Maharashtra to acquire the land in order to provide civic amenities. But the land in question has not been acquired. We are quite conscious of the fact that the open mark and garden are necessary for the residents of the area. But at the same time we cannot loose sight of the fact that a citizen is deprived of his rights without following proper procedure of law. The period of deferring the quashing of the de-reservation notification for two years by the High Court was perhaps to allow the Government or the Municipal Corporation of Pune to muster up funds so as to acquire the same. But earnest hope was frustrated when no step was taken by the Municipal Corporation. The direction given by the High Court of Bombay that within this period if the respondents (the present appellants) provide necessary area, approximate in size, suitable for the purposes of garden and park as envisaged in the Development plan to the satisfaction of the Planning authority, quashing and setting aside of the impugned notification will not be operative. We fail to understand how can the burden be placed on the appellants that they should provide suitable area in the present locality for using the same as garden or park. Rather, the burden should have been placed on the Municipal Corporation or the State Government instead of putting it on the appellants that they must provide some space for garden and park. This direction, in our opinion, appears to be wholly misconceived and we set aside the impugned order of the Division Bench. (Para 3)
       However, before parting with the case we may observe that we tried to explore the possibility if the Municipal Corporation is still prepared to acquire the land then even at this point of time we can permit them to acquire the land keeping in view the larger interest of ecology and for the amenities to the public of that locality. But learned counsel for the Municipal Corporation expressed inability of the Corporation and likewise learned counsel for the State of Maharashtra. We also asked the counsel for the private respondents if they can muster sufficient funds so as to enable the Municipal Corporation to acquire the land in question but learned counsel for the respondents expressed their inability to do so. Be that as it may, still we keep it open. In case within six months if the residents of the locality can raise funds for acquisition of the land by the Government, then, it will be open for them to keep this land as garden for the benefit of the locality. But we cannot sustain the present order passed by the High Court of Bombay. In case, the respondents cannot muster sufficient funds to acquire the land within six months from today, in that case, it will be open to the appellants to utilize the land for residential/other purpose in accordance with law. (Para 4)

Judgment

A.K. Mathur, J.—These appeals are directed against orders passed by learned Division Bench of the High Court of Bombay dated September 4, 1997 and September 8, 1999.

2. Initially a writ petition was filed before the High Court of Bombay by way of public interest litigation by the residents of Salisbury park and persons living around that area challenging the notification dated February 12, 1993 whereby an area admeasuring 1.50 acres of land was de-reserved from plot No. 438 of Salisbury Park within the Municipal limits of Pune which was reserved as a garden in the development plan. In order to promote ecology and to have congenial environment, a development plan was prepared on August 15, 1986 for Pune city under the erstwhile provisions of the Bombay Town Planning Act, 1954 and that development plan was carried out under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter to be referred to as the “1966 Act”) where under on September 18, 1982 a draft development plan was published by the Municipal Corporation of Pune purported to be under Section 26(1) of the 1966 Act. In that development plan Plot Nos. 437 and 438 were earmarked for the purposes of park and garden. This draft development plan was ultimately finalized and sanctioned on January 5, 1987. The present controversy centres around Plot No. 438 and this plot originally belonged to respondent No. 3. She did not object to the reservation of the plot for the garden. In December 1986, this plot was purchased by respondent Nos. 4 to 10 in the writ petition (appellants herein) at a throw away price. These respondent Nos. 4 to 10 then initiated a proposal for de-reserving this plot before the Government. Government of Maharashtra after hearing the Planning authority and on receiving report from the Municipal Corporation of Pune that they are not in a position to acquire this plot of land for garden, de-reserved the plot by the aforesaid impugned notification. This was challenged by a public interest litigation contending that once the land is earmarked for a particular purpose, namely to promote environmental exigencies, the same cannot be de-reserved to defeat the public purpose. Heavy reliance was placed on a decision of this Court in the case of Bangalore Medical Trust vs. B.S. Muddappa & Ors. reported in (1991) 4 SCC 54. As against this, learned counsel appearing for the Municipal Corporation of Pune submitted that the proposal for de-reservation was mooted by the Corporation at the behest and on the dictate of the State Government and it was also pointed out that the Municipal Corporation of Pune had no financial resources to acquire the aforesaid land. It was also submitted that the decision rendered by this Court in the case of Bangalore Medical Trust (supra) cannot be of any assistance to the present controversy as the provisions of the Bangalore Development Authority Act, 1976 are not pari materia with that of the provisions of the Maharashtra Regional and Town Planning Act, 1966. It was further pointed out that Section 38-A of the Bangalore Development Authority Act, 1976 creates a complete prohibition for the authority from selling or otherwise disposing of any area reserved for the public parks and play grounds. In this background the Division Bench of the Bombay High Court after hearing arguments came to the conclusion that an equitable device can be worked out so as to serve the interest of public in general as well as safeguard the interest of the owners of the plot by putting certain conditions. A proposal was also mooted that an alternative plot adjacent and suitable be provided for the same purpose as envisaged in the final development plan i.e. park and garden and possibility may be explored that such a land is available in the vicinity which will serve the purpose. But no such land could be found in the vicinity for the aforesaid purpose. However, finally the High Court thought of settlement that the notification be quashed but it

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2005 Supreme(SC) 785

Important pointThere is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose.

Cases Referred (2)

Important point
There is no prohibition for preparing the development plan comprising of private land but that plan cannot be implemented unless the said private land is acquired by the Government for development purpose.