Bandra Cecelia Co-operative Housing Society Ltd. another .... Petitioners.

Versus

The State of Maharashtra, through Secretary, Ministry

of Urban Development and others .... Respondents.

Writ Petition No. 705 of 1996, decided on 25-6-1996.

Advocates appeared :

Virendra Tulzapurkar with S.C. Dharmadhikari i/b K.V. Saste, forpetitioners.

Ms. Geeta Shastri, for respondent Nos. 1 and 2.

Ms. A.K. Savla, for respondent No. 3.

JUDGMENT - A.P. SHAH, J.:---The challenge in this writ petition is to the notification dated 7th May, 1992 issued by the State Government under section 31(1) of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act) in so far as it changes the reservation of plot bearing City Survey No. F-951 I No. 53 of T.P. Scheme IV, IIIrd Road, Bombay from "Municipal Dispensary and Nurses' Quarters" to "Recreation Ground". The petitioners have also challenged the order dated 28th December, 1994 rejecting the petitioners' application under section 24(1) of the Urban Land Ceiling and Regulation Act, 1976 (ULC Act) for allotment of the said land to the petitioner No. 1 society for constructing houses for its members. Petitioner No. 1 is a proposed co-operative society. Petitioner No. 2 is the Chairman of petitioner No. 1 society. It is the case of the petitioners that they had entered into an agreement of sale on 21st September, 1975 for the purchase of the said land with the owner Mrs. Myrtle Almeida. It is further the case of the petitioners that the original owner did not disclose the agreement of sale in the proceedings under the ULC Act and ultimately the land was declared as surplus and acquired by the State Government on 15th May, 1979. It seems that thereafter the petitioners made an application for allotment of the land under section 24 of the ULC Act. The petitioners' application was processed by the concerned officers with recommendation to make the allotment of the land to the petitioners subject to construction of a dispensary at the cost of the petitioners and handing it over to the municipal authorities. However, by the impugned notification dated 7th May, 1992 the reservation of the land was changed by the State Government from "Municipal Dispensary Nurses' Quarters" to "Recreation Ground". In view of the fact that the plot was reserved for recreation ground, the petitioners application came to be rejected on 26th December, 1994.

2. The basic contention of the petitioners is that the change of reservation from Municipal Dispensary Nurses' Quarters to Recreation Ground by the State Government without taking steps under section 39 read with section 92 of the MRTP Act is illegal. It is pointed out that in the Town Planning Scheme of 1937, the land is designated for residential purpose. Even under the Revised Planning Scheme of 1959, the user of the land remains residential. It is, therefore, contended that the reservation of the land for Recreation Ground by the impugned notification amounts to variation in the Town Planning Scheme and since such variation is not permissible without following the procedure prescribed under section 39 read with section 92 of the MRTP Act, the impugned notification is liable to be declared as ultra vires and illegal. It is further contended that there are other recreation grounds and parks in the vicinity and therefore there was no need for reserving the land in question for the purpose of Recreation Ground.

3. I do not find any merit in the contentions raised by the petitioners. In my opinion, they are based on total misconception of the provisions of the MRTP Act. But before dealing with the contentions of the petitioners, it is necessary to state the correct factual position that emerges on scrutiny of the record. It is true that the user of the land is designated as residential in the Town Planning Scheme of 1937 and Revised Planning Scheme of 1959. Original the land belonged to Mrs. Myrtle Almeida. However, admittedly from 15th May, 1979 the land is ves