2006 Supreme(Bom) 624

IN THE HIGH COURT OF BOMBAY
HOUSILAL BALCHAND SHAH
Versus
STATE OF MAHARASHTRA
Decided on,APRIL 17, 2006

Headnote:Land Acquisition Act, 1894 - Section 6 - Maharashtra Regional and Town Planning Act, 1966, Sections 28, 31 and 37 - Acquisition of land - Declaration under Section 6 of L.A. Act - Publication of - On publication of declaration, public purpose becomes conclusive - For any variation - Entire process of republication of Notification under Sections 28, 31 and 37 of M.R.T.P. Act not required to be followed. - In view of the law laid down by the Supreme Court in Nasik Municipal Corporation v. Harbanslal Laikwant Rajpal Rajpal ’s case Court is satisfied that since the declaration under Section 6 of the Land Acquisition Act was published the public purpose became conclusive and for any variation it is not necessary to follow the entire process of republication of the notification under Sections 28 and 31 read with Section 37 of the Act.

       Maharashtra Regional and Town Planning Act (37 of 1966) - Sections 31 and 37 - Land Acquisition Act, 1894, Sections 4 and 6 - Development plan - Modification of - By corrigendum - Proceedings initiated for land acquisition under L.A. Act completed in 1989 - Corrigendum issued by Government in 1994 - Notification under Sections 4 and 6 of L.A. Act clarifies that acquisition of land under Sections 28 and 31 of MRTP Act was for a public purpose - Any variation in public purpose not affects notification issued under Section 6 of L.A. Act - Re-issuance of notification under Sections 28 and 31 of MRTP Act not necessary. - The High Court in the impugned order, while upholding the validity of the notification under Section 4(1) and declaration under Section 6 of the Land Acquisition Act, held that the award was not valid in law since there was a corrigendum issued by the Government. Consequently, the procedure provided under the Act was to be followed by operation of Section 37 of the Act. Since the declaration under Section 6 of the Land Acquisition Act was published the public purpose became conclusive and for any variation it is not necessary to follow the entire process of republication of the notification under Sections 28 and 31, read with Section 37 of the Act.

       Maharashtra Regional and Town Planning Act (37 of 1966) - Sections 31 and 37 - Development plan - Modification of - Nature of - Development plan reserving entire area of 30,000 sq. mt. for botanical garden - In final plan Government reserved 15,000 sq. mt. for residential purposes - Subsequently cancelled same - reserved entire area for botanical garden - Change of area affecting over 50% of total area of survey termed as major modification - Final plan as modified by Government illegal and invalid - Such mistake can be corrected by Government by corrigendum of final plan to bring status quo ante in accordance with. - At this stage it may be noticed that in 1994, Section 22-A was inserted, defining the expression "of a substantial nature" to mean reduction of more than 50 per cent in area of reservation provided for in clauses (b) to (i) of Section 22 in each planning unit. Though this section has no application to the facts of the present case it can be looked into for our guidance. Thus, reduction of more than 50 per cent in area of reservation, i.e. 15,000 sq. mtrs. in Survey No. 34, in this case, which clearly amounts to a modification ’of a substantial nature’ is also covered by the definition under Section 22-A. The State Government was, therefore, obliged to follow the procedure contemplated in the second proviso to sub-section (1) of Section 31 before reducing more than 50 per cent in the area of reservation for botanical garden. It is nobody’s case that such procedure was followed by the State Government. The procedure prescribed in the second proviso to sub-section (1) of Section 31 is mandatory in character and, therefore, cannot be by passed for any reason whatsoever. The modification of a substantial nature, if any, effected by the State Government overlooking by bypassing the procedure contemplated under this proviso, would be illegal and if such error is subsequently rectified and status quo ante has been restored by issuing corrigendum this Court under Article 226 of the Constitution of India need not cause interference in such decision. In other words, for rectification of such error the process of republication of notification under Sections 28 and 31 read with Section 37 need not be followed and such error could be rectified by issuing corrigendum. Issuance of corrigendum in this case is perfectly legal.

       Maharashtra Regional and Town Planning Act (37 of 1966) - Section 31(1) - Draft Development Plan - Modification of - State Government has power to make minor or substantial modifications/ variations in plan - Procedure prescribed in Section 31(1), second proviso is mandatory in nature - Noncompliance of said procedure - Render modification of substantial nature illegal and non est in law - Though draft development plan capable of being revised by State Government.q