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2000 Supreme(Bom) 959
IN THE HIGH COURT OF BOMBAY
B.P. Singh, C.J. S. Radhakrishnan, J.
Mani D. Seervai (Ms.) others.... Petitioners.
Versus
State of Maharashtra others.... Respondents.
Writ Petition No. 2680 of 1999, decided on 22-12-2000.
Advocates appeared :
R.A. Dada with Divtre, D.J. Khambatta, Pradeep Sancheti i/by Federal and Rashmikant, for the petitioners.
R.M. Sawant with K.R. Belosey, for the State of Maharashtra.
C.J. Sawant with Mrs. N.V. Sanglikar, for the M.M.C.
Virendra Tulzapurkar with Anand Desai i/by Shah, Desai Doijode and Phatarphekar, for respondent No. 4.
Headnote:Sections 91 and 39-Developmt Control Regulations for Greater Bombay, 1991, Regulations 11(4) and 21-Town Planning Scheme-Variations in-Challenged Ground-Second variation affecting after 26 years-Interchanging recreational areas to residential and vice- versa-Contention-Sentence varied to bring it in conformity with Development Control Rules-It becoming part of Act-Cannot be challenged-Variation resulting in allotment of much higher area to petitioner-Allowing good area to respondent-Held-A town planning scheme can be changed at any time-Petitioner is allocated much higher area-So he is not prejudiced-Nothing arbitrary, nothing is unreasonable-Variation in conformity with Section 39, read with 92 of M.R.T.P. Act.-It is vital to note that Section 39 of M.R.T.P. Act provides that the Planning Authority shall vary such a Scheme suitably under Section 92, to the extent necessary by the proposals made in the final development plan. Similarly, Section 92 of M.R.T.P. Act, provides for the variation of the Town Planning Scheme, at any time, irrespective of the fact that the final scheme has been sanctioned by the State Government. In fact the petitioners land area has increased from 2345.00 sq. meters to 6454.00 sq, meters" hence there could be no grievance whatsoever. There is an obligation and duty to bring the Town Planning Scheme in consonance with the Development Plan, and what has been done is only minor modifications so as to achieve conformity with the Development Plan, as contemplated under Section 39, read with Section 92 of M.R.T.P. Act. The modification adopted were only minor and the same were permissible, especially when the same has been adopted mainly to achieve conformity of the Town Planning Scheme with that of Development Plan.
Sections 92 and 39-Constitution of India, 1950, Articles 14 and 226-Scope for doctrine of legitimate expectations-Variation in Town Planning Scheme for third time-Challenged-Change came after 26 years -Contrary to agreement-Arbitrary and . illegal-Held-Contention not tenable-Change is brought to bring conformity with Development Control Regulation-Time taken of 20 years shows that petitioners were not agreeing to agreement-Town Planning Authority not at fault.- The Town Planning Authority which is a public body, while exercising powers under the M.R.T.P. Act, in effect performs statutory functions by exercising statutory powers as if it is a trustee for the general members of the public and it cannot act for its own purpose or for its own benefit. As far as the contention of the petitioners with regard to legitimate expectation, the same cannot be made applicable to a claim, if the expectation is not legitimate or is as a result of illegitimate acts of the authorities. In the instant case, in the facts and circumstances of the case, the doctrine of legitimate expectation will not apply at all. All lands in the area which is subject to the scheme to whomsoever they might have originally belonged, would absolutely vest in the local authority, if under the scheme, the same are allotted to the local authority.
2. The brief backdrop of the case is that on 1st October, 1922 the Santacruz Town Planning-II scheme came into force. At that time Dorabji Pestonji Seervai was the original owner of Plots 77-C and 78-B, admeasuring approximately 54.633 sq. yards. It appears that in the year 1944, by way of first variation to the said scheme the said Dorabji Pestonji Seervai was allotted final Plot Nos. 94 and 83 in place of the original Plot Nos. 77-C and 77-B. In or about 1943, Plot No. 83 came to be sub-divided viz. Plot Nos. 83-A and 83-B. Plot No. 83-A admeasuring approximately 13,712 sq. mtrs. was sold to the Chinais and Plot No. 83-B admeasuring approximately 13.719 sq. mtrs. was retained by the said D.P. Seervai.
3. Thereafter, it appears that in or about 1952-53 the aforesaid Plot No. 83-B was sub-divided into 8 plots, viz. Plot Nos. 83-B/1 to 83-B/8. The petitioner Nos. 1, 2, 7 and 10, the late Jehangir D. Seervai, the late Nusserwanji D. Seervai and the late Fredun D. Seervai are the daughters and sons of the said D.P. Seervai, hereinafter called "the said Seervais". Out of the aforesaid 8 plots (from Plot No. 83-B), each of the aforesaid sons and daughters individually owned one plot each of the seven plots, and the eighth plot was owned jointly. The said 8 plots are referred to as "the petitioner's said plots".
4. In or about 1958-59 the Draft Development Plan was published whereby out of Plot Nos. 83-B/1 to 83-B/8, Plot Nos. 83-B/1 to 83-B/3 were reserved by respondent No. 2 for a Recreation Ground, and Plot Nos. 83-B/4 to 83-B/8 were reserved partly for Recreation Ground and partly for a 44 wide D.P. road from their Southern Side. Under the Draft Development Plan, Plot Nos. 83-A/1 and and 83-A/2 belonging to the Chinais were also reserved for a Recreation Ground.
5. On 6th January, 1962, the Second Variation of the Santacruz Town Planning Scheme No. 2 was approved by respondent No. 2 and the aforesaid reservation under the first Draft Development Plan was continued in the second variation. On 15th October, 1966 the Final Development Plan of "H" West ward, sanctioned by respondent No. 1 came into force. In the meanwhile, no steps were taken by respondent No. 2 for completing the acquisition procedure in respect of Plot Nos. 83-B/1 to 83-B/8 and/or to pay the compensation to the said Seervais, and the possession of the said plots remained with the said Seervais. On 11th January, 1967 the Maharashtra Regional Town Planning Act, 1966 came into force. On 14th April, 1969 the respondent No. 2 had addressed a letter to the said Seervais informing thereby that the Corporation had no intention of taking possession of their land at that time and that the compensation would be payable only after finalisation of the said scheme.
6. On 21st March, 1974 and on 27th September, 1974 the Decisions/Awards came to be passed by the Arbitrator appointed by respondent No. 2 Corporation, whereby the petitioners said plots of land were reconstituted i.e., out of original Plot Nos. 83-B/4 to B/7, Final Plot Nos. 83-B/1 to 83-B/9 (admeasuring about 335 sq. mtrs each) were reconstituted. Out of these reconstituted plots, Final Plot Nos. 83-B/1 to 83-B/7 were allotted to each of the said Seervais (in lieu of their original Plot Nos. 83-B/1 to 83-B/8), and Final Plot Nos. 83-B/8 and 83-B/9 were allotted to R.J. Chinai and others and M.M. Chinai and others respectively in lieu of their original Plot Nos. 83-A/1 and 83-A/2. The said original Plot Nos. 83-A/1 and 83-A/2 were continued to be reserved for a Recreation Ground.
7. In or about 1975, separate decision were passed by the Arbitrator deciding the compensation payable to the said Seervais in respect of the plot area taken away
