2001(3) ALL MR 346
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
H.L. GOKHALE AND D.B. BHOSALE, JJ.
Fardoon Manekji Dalal & Anr. Vs. State Of Maharashtra & Ors.
Writ Petition No. 722 of 1989
7th June, 2001
Petitioner Counsel: Shri. GIRISH DESAI,Mr. C. M. CHOKHANI
Respondent Counsel: Shri. C. R. SONAWANE,Shri. PRAFULLA SHAH
Maharashtra Regional and Town Planning Act (1966), Ss.28(3),31 - Draft Development Plan - Finalisation of - Procedure - One plot reserved for housing of urban poor and other for Office of the Motor Vehicle Department - Objections lodged and were supported by resolutions of Municipal Council - Despite objections objectors and Municipal Council not given hearing and draft development plan finalised and sanctioned and notification was issued - Notification quashed and Director of Town Planning directed to hear objectors and to consider development proposals of objectors and planning requirements of municipal area. (Para 8)
2. The petitioners herein are owners of an immoveable property bearing Final Plot No.521 situated at Panchgani, District Satara, admeasuring about 7 Hecters 98 Ares. From this parcel of land, Office of respondent no.3 (Director of Town Planning) reserved two parcels for development under the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the MRTP Act). One of the sites marked as site no.6 was reserved for housing urban poor people and another site, viz. site no.7 was reserved for the Office of the Motor Vehicle Department. This was sought to be done while revising the draft development plan of the Panchgani Municipal Council.
3. When the procedure for finalisation of the draft plan was going on, objections were invited to these proposals, amongst others, as contained in the draft development plan. The petitioners lodged their objections. Apart therefrom, respondent no.2 Municipal Council passed two resolutions, one dated 9th September, 1987 and another dated 21st September, 1987, supporting the cause of the petitioners. The Municipal Council accepted that in that particular part of the Town there was no need for housing the urban poor people nor was the office of the Motor Vehicle Department required in the particular area since the area available at the Panchgani Bus Stand itself was quite large. Yet, the draft development plan was finalised and sanctioned as per the original proposal and therein these two sites came to be reserved as above and the necessary notification was issued. The submission of the petitioners is that neither were their objections considered, nor were the resolutions of the Municipal Council.
4. In the circumstances, being aggrieved by the said notification issued by the Director of Town Planning dated 12th May, 1988, the petitioners filed the present petition seeking to quash and set aside the same. They also sought as interim relief vide prayer clause (c) restraining the respondents from proceedings to implement and/or taking any action in pursuance of the said notification dated 12th May, 1988. The petition was admitted by this Court and the interim relief in terms of prayer clause (c) came to be granted. The Panchgani Municipal Council as well as the Assistant Director of the Town Planning, Satara have filed their replies.
5. When the matter reached for final hearing, Mr. Desai, learned counsel appearing for the petitioners, pointed out that in the petition both these points have been specifically taken and in the reply of the Town Planning Department, there is no specific denial. Thus we find that in ground (i) of para 5, there is a specific averment that the impugned decision was taken without any notice or intimation or without giving opportunity to the petitioners to have their say in the matter. In para 6, it has been specifically stated that the recommendations of the Municipal Council were not considered. Mr. Desai drew our attention to the reply filed by the Assistant Director of Town Planning and pointed out that there is no clear denial therein. Mr. Sonawane, learned Assistant Government Pleader drew our attention to para 4 of the reply and pointed out that it has been stated that the relevant provisions have been followed and that under section 31 of the MRTP Act there is no provision for personal hearing. On the other hand, Mr. Shah, learned counsel appearing for the Panchgani Municipal Council, supported the petitioners and submitted that the contentions raised by the petitioners were correct and that the concerned lands were not required for the particular purpose and that the relevant statutory provision had not been followed.
6. We have considered the submissions made by the learned counsel for the petitioners as well as those for the respondents. The mechanism for finalisation of the plan requires objections to the draft development plan being considered. That is the scheme in sections 28 to 31 of the MRTP Act. Section 28(3) of the said Act, in fact, specifically provides that reasonable opportunity of being heard has to be given to the objector. In the present case, this was all the more necessary considering the fact that the Municipal Council was also supporting the stand taken by the petitioners. Besides when the reply filed by the Town Planning department is seen, it is clear that the averments of the petitioners have not been specifically denied.
7. In view of what has been stated above, in our view, the contentions raised in the petition deserve to be accepted. It is also stated in the petition that the petitioners want this particular parcel of the land to be used for developing a playground for children and part of it for a Nursery and garden. This has been specifically stated in para 5(d) of the petition. Considering these aspects, we are of the view that the Director of Town Planning ought to hear the petitioners with respect of their objections particularly in the light of their own proposal as well as the resolutions passed by the Municipal Council in the year 1987. The counsel for the petitioners as well as those for the respondents are agreeable that while taking the decision, the Director of Town Planning may, as well, consider the present town planning requirements with respect to these two sites.
8. In the circumstances, as far as the notification dated 12th May, 1988 at Exhibit - B to the petition is concerned, the same is hereby quashed and set aside only to the extent of paras 4 and 5 thereof concerning the above referred site nos. 6 and 7. The Director of Town Planning is directed to hear the petitioners as well as the representative of the Panchgani Municipal Council once again and consider and decide their objections and submissions before finalising the plan with respect of these two parcels of the land. While doing that, he may as well consider the development proposal of the petitioners and the present town planning requirements of the municipal area.