Supreme Court of India
RAJU S. JETHMALANI AND ORS.versusSTATE OF MAHARASHTRA AND ORS.
- Citation
- 2005 INSC 260
- Decided
- 5 May 2005
- Disposal
- Appeal(s) allowed
- Bench
- ASHOK BHAN
Holding
A development plan may include private land, but no development can be carried out on such land unless it is acquired; the government cannot deprive a private owner of use of his property without acquisition.
Summary
The 1986 development plan for Pune earmarked a privately‑owned 1.5‑acre Plot No.438 as a garden, but the Municipal Corporation and the State Government never acquired the land. After the owners (appellants) bought the plot, the Government de‑reserved it by notification on 12‑Feb‑1993, citing lack of funds. Residents filed a public‑interest litigation; the Bombay High Court conditionally quashed the de‑reservation, directing the appellants to find an alternate plot within two years, otherwise the notification would stand. The Supreme Court held that while private land may be shown in a development plan, the plan cannot be executed without acquisition, and the State cannot deprive the owner of his property. Consequently, the High Court’s burden‑shifting order was erroneous and was set aside. The appeals were allowed, restoring the appellants’ right to use the land unless acquisition is effected.
Issues considered
- The validity of de‑reserving a privately‑owned plot earmarked as a garden in a development plan under the Maharashtra Regional and Town Planning Act, 1966.
- Whether the burden of providing an alternate site for a public garden can be placed on the private landowner.
- Whether the provisions of the Bangalore Development Authority Act, 1976 are applicable to the present case.
Legislation cited
Subjects
development plande‑reservationprivate landmunicipal corporationpublic interest litigationproperty rightsland acquisitionMaharashtra Regional and Town Planning Act
Judgment
RAJU S. JETHMALANI AND ORS. A
v.
STATE OF MAHARASHTRA AND ORS.
MAY 5, 2005
[ASHOK BHAN AND A.K. MATHUR, JJ.] B
Municipal Corporation:
Maharashtra Regional and Town Planning Act, 1966:
c
Private land earmarkedJo; purpose of garden in the development plan,
not acquired by the Corporation-Proposal of owner of land for its de-
reservation allowed-Challenged by residents ofthe area-High Court directing
owner to find an alternate plot within 2 years and on failure to set aside de-
reservation-Correctness of-Held, High Court erred in placing the burden
on the owner of land-Development plan comprising of private land cannot D
be implemented unless such land is acquired-Corporation and Government
having expressed their inability to acquire that land, cannot deprive the owner
from using their private property.
A development plan was prepared on 15.8.1986, whereunder Plot no E
438 in Salsibury Park, having area of 1.50 acres was earmarked as park
and garden in order to promote ecology. Plot no.438 was owned by
respondent no.3. She did not object to its reservation. Appellants bought
this plot cheaply in Dec., 86. Thereafter, appellants initiated proposal for
de-reserving this plot Government and Municipal Corporation expressed
their inability to acquire this land for lack of funds, and thus de-reserved F
the plot by Notification dated12.2.1993. This was challenged by residents
.in a PIL. Reliance was placed on Bangalore Medical Trust case*. The
Municipal Corporation opposed on the ground that in Bangalore Medical
Trust case*, there was prohibition to dereserve while in the instant case
there was no prohibition. High court on equitable consideration passed a G
conditional orde,r on 4.9.1997 allowing the appellants to find out an
alternate area in the vicinity for purposes of garden within 2 years, and
011 failure to quash the Notification. Appellants applied for clarification
which was rejected on 8.9.1999. They appealed to Supreme Court against
both' these orders.
H
2 SUPREME COURT REPORTS [2005) SUPP. I S.C.R.
A Allowing the appeals, the Court
HELD: 1.1. 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. [6-C]
B
1.2. Plot No.438 belonged to 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
C 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 tiy Notification dated
12.2.1993. All the procedures which were required under the Maharashtra
Regional and Town Planning Act, 1966 were observed, the notification was
issued inviting objections against de-reservation. No objection was filed
D 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 financial crunch and accordingly,
the Government was intimated. Government accordingly de-reserved it
and consequently, issued the impugned notification 'dated 12.2.1993~ after
which the residents of the area woke up and brought about this public
E interest litigation. [6-E, F, G)
2. It is not disputed that open park and garden are necessary for
the residents of the area. But at the same time, a citizen should not be
deprived of his rights without following proper procedure of law. The
F 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 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 that within this period
if the appellants provide necessary area, approximate in size, sqitable for
G the purposes of garden and park as envisaged in th~ Development plan to
the satisfaction of the Planning authority, quashing and setting aside of
the impugned notification will not be operative. It is difficult to understand
how can the burden be plac~d on the appellants that they should provide
suitable area in the present locality for using the same as garden or park.
H Rather, the burden should have been placed on the Municipal Corporation
...
RAJUS.JETHMALANI v.STATEOFMAHARASHTRA[A.K.MATHUR,J.] 3
.>- or the State Government. This direction, is wholly misconceived and is A
set aside. Unfortunately, this direction was reaffirmed by subsequent order
passed on the clarification application dated 8.9.1999 by the Division Bench
wherein it was observed that since the period of two years has already
expired, ·the notification stood quashed and the Municipal Corporation can
proceed in the matter. The subsequent order passed by the Division Bench B
on 8.9.1999 also cannot be sustained. Since the Government and the
Municipal Corporation expressed their inability to acquire the land
because of lack of funds, the appellants cannot be deprived of the use of
the land. Therefore, the view taken by the High Court by the orders dated
4.9.1997 and 8.9.1999 cannot be sustained and both are liable to be set
aside. (8-C-H; 9-D, E] C
Ba/akrishna H.Sawant and Ors. v. Sangli, Miraj & Kupwad City
Municipal Corporation and Ors., (2005) 2 SCALE 420, relied on.
*Bangalore Medical Trust v. B.S. Muddappa and Ors., [1991) 4 SCC
54, distinguished. D
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8274-8275
of 2003.
From the Judgment and Order dated 4.9.97/8.9.99 of the Bombay High
Court in W.P.No. 2087of1993 in C. Application No. 6171199 in W.P.No.2087 E
of 1993.
Arvind V. Savant, Makarand D. Adkar, Vijay Kumar and Vishwajit
Singh with him for the Appellants.
L.N. Rao, Ms. Indu Malhotra, N.P. Bhog, Ms. Mamata Choudary, R.B. F
Masodkar, S.S. Shinde, Mukesh K. Giri, Mrs. Jayashree Wad, Ashish Wad,
Neeraj Kumar and Ms. Surabhi Madan with him for the Respondents.
The Judgment of_ the Court was delivered by
A.K. MA THUR, J. These appeals are directed against orders passed G
by learned Division Bench of the High Court of Bombay dated September 4,
1997 and September 8, 1999.
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 H
4 SUPREME COURT REP~RTS [2005] SUPP. I S.C.R.
A whereby an area admeasuring l .50 acres of land. ~as de-reserved from plot
No.438 of Salisbury Park within the Municipal limits of Pune ~hich 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
B the Maharashtra Regional and Town Planning Ad, 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 & 438 were earmarked for the purposes of park and
C 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
D 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 , <;le-reserved the plot by the aforesaid impugned notification. This
was challenged by a public interest litigation contending that once the land
E 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 v. B.S. Muddappa and Ors., report~d 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
F 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 ~ubmitted 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
G 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
H Court after hearing arguments came to the conclusion that an equitable device
RAJUS. JETHMALANiv. STATEOFMAHARASHTRA [AK.MATHUR, J.) 5
can be worked out so as to serve the interest of public in general as well as A
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 sam~ purpose as envisaged in the final development plan i.e.
park a~d 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 B
in the vicinity for the aforesaid purpose. Howev_er, finally the High Court
thought of settlement that the' notification be quashed but it deferred it for a
period of two years and within this period the respondent Nos. 4 to 10
(appellants herein) 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. In case of failure, the impugned C
notification shall stand quashed and set aside. After that an application seeking
clarification of the earlier order was moved before the High Court. Therein
it was,contended that in the order dated September 4, I 997 it was not indicated
that how the applicants should offer piece of land for the purpose of park and
garden in the same vicinity where the plot in question is situated. This
application was dismissed by the Division Bench of the High Court and it D
was observed that the order dated September 4, 1997 is clear and does not
) call for any clarification as prayed for by the applicants. It was also observed
that the order dated September 4, 1997 was not challenged during the last
two years by the applicants. Therefore, on the expiry of the period of two
years, the order passed by the Court quashing the notification dated February E
12, 1993 became operative and Municipal ·Corporation of Pune was directed
to proceed accordingly. Aggrieved against both these orders i.e. order dated
September 4, 1997 and order dated September 8, 1999 the present Special
Leave Petitions were filed. Leave was granted and these appeals were argued
at some length before a Bench on November 9, 2000 and the matters were
adjourned at the request of the parties to sit together and consider the terms F
on which a settlement could be arrived at between the parties, again on
August 16, 2001 parties sought time for some agreed solution of the issue.
When the matters again came up before this Bench and it was mooted out
that some solution could be worked out but it could not be worked out and
this is how these appeals have come up for final disposal before us. G
The Plot No.438 measuring 1.50 acres ofland has a sub-plot 1 to 9.
Construction has already been completed on sub-plot Nos.4,5,6 & 7. The
dispute is with regard to sub-plot Nos. I ,2,3 and 8 & 9 on the. plot. Sub-plot
Nos.1,2,& 3 are on one side of the road and sub-plot Nos.8 & 9 are on the
other side of the road. It was also pointed out that adjacent plot No.437 H
6 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.
A measuring 2.00 acres was acquired and a garden was developed. It was not -· "
disputed that Plot No.438 was earmarked as garden in the development plan
in 1966 but it was not acquired and it remained a private property. It is true
that when it was shown as a garden in the draft development plan no objection
was raised and final notification declaring this land as earmarked for garden
was published. It is true that a Development Plan can be prepared of a land
B comprising of a private person but that plan cannot be implemented till the
land belonging to the private person is acquired by the Planning authority. It
is not that the Planning authority was ignorant of this fact. It acquired some l'--'
'\
land from Plot No.437 for developing garden but thdand from plot No.438
was not acquired for garden. Therefore, the question is whether the
c Government can prepare a development plan and deprive the owner of the
land from using that land ? 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
D 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
E 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
F 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
I
..
before the Municipal Council it also resolved that Municipal Council is not
G 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, 3 7 of the 1966 Act empowers the Government for -
-r-
H modification of the final development plan. It lays down that where a
RAJU S. JETHMALANI v. STATE OF MAHARASHTRA [A.K. MATHUR, J.] 7
modification of any part of or any proposal made in a final Development A
plan is of such a nature that it will not change the character of such
Development plan, the Planning Authority may or when so directed by the
State Government shall within sixty days from the date of such direction,
publish a notice in the Official Gazette and in such other manner.as may be
determined by inviting objections and suggestions from any person with B
respect to the proposed modification not later than one month from the date
of such notice and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons, submit
the proposed modification with amendments if any, to the State Government
for sanction and if the Planning authority fails to issue the notice as directed
by the State Government, the State Government shall issue the notice, and C
thereafter modification can be issued by the State Government. Therefore, all
the formalities required under the law were complied with by the authorities.
In fact, the public spirited persons who have filed the public interest litigation
did not file any objection to. the proposed de-reservation of the area. The
High Court after hearing both the parties felt persuaded because of the decision
rendered by this Court in the case of Bangalore Medical Trust.., (supra). But D
with great respect the Division Bench of the High Court of Bombay did not
J examine the matter very closely whether the provisions of the Bangalore
Development Authority Act, 1976 and that of the Maharashtra Regional and
Town Planning Act, 1966 are pari materia or not. In the case of Bangalore
Medica.l Trust, the open space reserved for park under the development scheme E
was converted in to a Hospital in favour of a private body by the Development
authority at the instance of the Chief Minister of the State. Therefore, this
Court examined the provisions of the Bangalore Development Authority Act,
1976 and after considering all those provisions, this Court held that this
unilateral act of the Bangalore Development Authority at the instance of the
Chief Minister of the State cannot be countenanced. In that case, the area was F
reserved for park and play-ground. Section 38-A of the Bangalore
Development Authority Act, 1976 specifically prohibited that the authority
shall not sell or otherwise dispose of any area reserved for public parks and
playgrounds and civic amenities for any other purpose and any disposition so
~ade shall be null and void. Firstly, there is no such provision under the G
Maharashtra Regional and Town Planning Act, 1966 and secondly, the area
which is earmarked for the purpose of park and playground was not owned
by a private person. 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 H
8 SUPREME COURT REPORTS [2005) SUPP. 1 S.C.R.
A 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
B Corporation had already expressed their inability to acquire that land and
therefore, the said land has been de-reserved by the State Government.
Therefore, the present case has no semblance with that of the Bangalore
Medical Trust case (supra). The question is whether without acquiring the
land ca_n the Government deprive a person of his use of the land ? This in
C 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 cons~ious of the fact that the open park 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
D 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
E 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
F 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. Unfortunately, this
G direction was reaffirmed by subsequent order passed on the clarification
application dated September 8, 1999 by the Division Bench and the Division
Bench has observed that since the period of two years has already expired,
therefore, the notification stood quashed and the Municipal Corporation can
proceed in the matter. Since we felt persuaded to set aside the direction given
on S~ptember 4, 1997 by the High Court putting the burden on the appellants,
H therefore, the subsequent order passed by the Division Bench on September
RAJUS.JETHMALANI v.STATEOFMAHARASHTRA[A.K.MATHUR,J.] 9
f-
8, 1999 also cannot be sustained. In this connection, our attention was invited A
to a recent decision of this Court in the case of Balakrishna H. Sawant and
Ors. v. Sangli, Miraj and Kupwad City Municipal Corporation and Ors.,
reported in (2005) 2 SCALE 420 wherein under the identical situation under
the Maharashtra Regional and Town Planning Act, 1966, this Court quashed
the reservation in respect of the land owned by private person. In that case B
final development plan was published reserving land for a High School and
play ground owned by the private person. The grievance of the appellant was
that the State had not taken any steps to acquire the land wi!hin the stipulated
statutory period, therefore, the rese.rvation had lapsed. The State Government
also admitted that the reservation had lapsed and it had no power to condone
the delay. However, the High Court took the view that since the Corporation C
has taken appropriate steps to acquire the land in question so as to give effect
to the reservation, the same cannot be said to have lapsed. The matter came
up before this Court by way of Special Leave petition. The respondent-
Corporation took the stand that the Corporation has no money for the
construction of the High School and play ground and therefore, the Corporation
does not need the subject land. In this background, this Court set aside the D
order of the High Court and quashed the reservation in respect of the land in
question owned by the appellant and allowed the appeal. Similar is the position
in this case also. Since the Government and the Municipal Corporation
.. expressed their inability to acquire the land because of lack of funds, the
appellants cannot be deprived of the use of the land. Therefore, the view E
taken by the High Court by the orders dated September 4, 1997 & September
8, 1999 cannot be sustained & both are liable to be set aside.
However, before parting with the case we may observe that we tried to
explore the possibility ifthe Municipal Corporation is still prepared to acquire
the land then even at this point of time we can permit them to acquire the F
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 G
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 \and 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 H
10 SUPREME COURT REPORTS [2005] SUPP. I S.C.R.
A 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.
In view of our above discussion, we allow these appeals and set aside
the impugned orders dated September 4, 1997 in Writ Petition No.2087 of
B 1993 and September 8, 1999 in Civil Application No. 6171 of 1999 in Writ
Petition No.2087 of 1993 passed by the High Court of Bombay. There will
be no order as to costs.
D.G. Appeals allowed.
...
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