The prevailing effect of the development plan over the town planning scheme in case of conflict, and the requirement for public interest to yield to private interest through due process of law.

(Gavai, J.)

The petitioner challenges the notice dated 2nd December, 1997 issued by respondent No.2 purportedly under Section 89 of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as 'said Act' for the sake of brevity.)

2. The facts in brief giving rise to the present Petition are as under:

The petitioner which is a partnership firm claims to have entered into an agreement for lease on 1st May, 1970 with the landlord M/s.Sundarbhag Builders in respect of an open plot bearing No.289/1. The respondent Corporation had initially issued a notice to the petitioners under the provisions of Section 230(1)(A) of the Bombay Provincial Municipal Corporation Act (hereinafter referred to as the "BPMC Act " for sake of brevity). Being aggrieved by the said notice, the petitioners had filed Regular Civil Suit being Civil Suit No.2219 of 1976 against the Corporation.

3. The Suit was resisted by the respondent Corporation. Vide judgment and order dated 28th September, 1983, the learned 3rd Joint Civil Judge (J.D.), Pune decreed the Suit, and declared that the notice issued by the defendant Corporation dated 25th November, 1976 was illegal, and also restrained the defendant Corporation from removing plaintiff's scrap material from the Suit plot by claiming the plaintiff to be a trespassed over the Suit plot. Being aggrieved by the said judgment and decree, the respondent Corporation went in appeal before the learned District Judge, Pune by way of Civil Appeal No.149 of 1984. The said Appeal came to be dismissed on 6th August, 1986. However, the learned District Judge had observed that if the defendant feels that the plaintiff had committed any other unauthorized act, they may take necessary action by issuing a fresh notice. The injunction awarded was subjected to the disturbance otherwise than in due course of law. It appears that after a period of almost nine years from the date of judgment and decree in the aforesaid Appeal, the respondent Corporation has issued the notice, which is questioned in the present Petition. The Division Bench of this Court vide order dated 9th August, 1998 had granted Rule and interim order in terms of prayer clause (d). After almost 13 years, the Petition has came up for final hearing.

4. We have heard Mr. V.B. Naik, the learned counsel appearing for the petitioners, Mr. R.S. Khadapkar, the learned counsel appearing for the respondent Nos.2 and 3, Mr. A.D. Kango, the learned AGP for the respondent No.1.

5. The basic contention raised on behalf of the petitioners in support of the Petition is that in the final development plan, which is sanctioned by the State Government for the Pune Municipal Corporation area on 5th January, 1987, Final plot No.289/1 is shown as reserved for extension to timber market, whereas in the final town planing scheme which is sanctioned by the State Government on 15th July, 1989 the said plot is shown to be reserved for open space and 50 feet wide road. It is the contention of the learned counsel for the petitioners that in case of a conflict between a town planning scheme and a final development plan, it is a reservation in the town plan scheme which has to yield to the reservation as directed in the final development plan. The learned counsel in this regard refers to the three reported judgments of the Division Bench delivered by the three different Benches of this Court. The first is in the case of Mr. Rusy Kapadia and Ors. vs. State of Maharashtra and Ors [1998 (2) ALL MR 181], the second is in the case of Vijay K. Kumbhar vs. The State of Maharashtra and Ors. [2000 Vol. 102(1) Bom.L.R. 328] and third is in the case of Indirabai B. Bhajekar and Ors vs. Pune Municipal Corporation, Pune and Ors. reported in 2009 (6) AIR Bom.R. 430.

6. As against this, Mr. Khadapkar, the learned counsel appearing on behalf of the respondent Corporation by relying on the various provisions of town planning scheme submits that it is the town planning scheme which would