2009(4) ALL MR 640
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

D.K. DESHMUKH AND R.S. MOHITE, JJ.

Bharat Petroleum Corporation Ltd. & Anr.Vs.State Of Maharashtra & Ors.

Writ Petition No.1891 of 2007

9th June, 2009

Petitioner Counsel: Mr. F. DEVITRE,Mr. N. H. SEERVAI, Sr. Advocate, Mr. PHIROZ PALKHIWALA, Mr. F. DUBASH, Mr. T. K. MAJUMDAR , Mr. A. C. SARKATE,Mr. S. R. PAGE
Respondent Counsel: Mr. RAVI KADAM,Mr. G. W. MATOES,Mr. G. D. UTANGALE,M/s. Utangale and Co.,Mr. R. B. RAGHUVANSHI,Mr. RAJIV CHAVAN, Mr. VINOD JOSHI, Ms. RUTUJA AMBEKAR,Mr. K. K. SINGHVI,Ms. S. M. MODLE,Mr. HARISH SALVE,Dr. MILIND SATHE,Mr. PARIMAL SHROFF, Mr. M. AGARWAL, Mr. M. BHATT , Ms. BHARTI BHAGWAT,M/s. P. K. Shroff and Co,Mr. MUKUL ROHATGI,Mr. ASPI CHINOY,Mr. P. K. SHAH , Mr. SUBODH JOSHI

(A) Maharashtra Regional and Town Planning Act (1966), S.37 - Urban Land (Ceiling and Regulation) Act (1976), S.20 - Designation of land in final development plan for re-habilitation of slum dwellers and footpath dwellers - Designation can be cancelled or annulled only in accordance with the established law - Held, merely because there is an apprehension of security threat, the established law cannot be ignored. (Para 13)

(B) Maharashtra Regional and Town Planning Act (1966), S.37 - Urban Land (Ceiling and Regulation) Act (1976), S.20 - Modification in final development plan - Power of Government to effect minor modification in final development plan in relation to a land - Power does not get exhausted on making one minor modification - The power can be exercised from time to time as the need or occasion arises. (Para 14)

(C) Constitution of India, Art.226 - Writ of mandamus - Demand prior to application - Held, a petition seeking issuance of writ of mandamus has to be preceded by a distinct demand for performance of a duty in order to give the party an opportunity to consider whether he should comply or not and such demand must be shown to have met by refusal either by words or by conduct, so that the Court may be satisfied that the party complained off is determined not to do what is demanded and the demand must be made prior to the application. AIR 1975 SC 460 - Rel. on. (Para 14)

(D) Maharashtra Regional and Town Planning Act (1966), Ss.37, 150(1)(d) - Constitution of India, Art.226 - Notification effecting minor modification - Cannot be set aside by the Court for failure to serve notice - Held, a person who is affected by proposed modification is entitled to individual notice and failure to serve notice on him will not vitiate final action taken unless he satisfies the Court that failure to serve individual notice on him has resulted in substantial injustice - Burden of showing that failure to serve a notice has resulted in substantial injustice is on the person who is challenging the action. (Paras 20, 21)

(E) Maharashtra Regional and Town Planning Act (1966), Ss.37, 150(1)(d) - Development of land - Security threat - If a particular development on any land is likely to increase security threat to a large establishment which is of national importance, then that aspect is required to be taken into consideration while permitting the development. (Para 22)

Cases Cited:
S. Vasudeva Vs. State of Karnataka, AIR 1994 SC 93 [Para 3]
Saraswati Industrial Syndicate Ltd. Vs. Union of India, AIR 1975 SC 460 [Para 14,A]


JUDGMENT

D. K. DESHMUKH, J.:- The Petitioners by this petition take exception to the designation of the land which is the subject matter of this petition for the purpose of rehabilitation of slum dwellers and foot path dwellers by effecting minor modifications in the final development plan.

2. The facts that are relevant and material are as follows :

The Petitioner No.1 is a company incorporated under the Companies Act. 54.93% share of the Petitioner No.1 company are held by the Government of India. The Petitioner No.1 carries on business of Petroleum products. The Petitioner No.2 is the share holder of the Petitioner No.1 company and is working as General Manager at the Refinery of the Petitioner No.1 in Mumbai. According to the Petitioner No.1, the Petitioner No.1 set up a refinery in 1955 at Mahul, Chembur. The Petitioners produce and refine about 12 million metric tones per annum of petroleum products, such as Motor Spirits, High Speed Diesel, Aviation Turbine Fuel, Liquified Petroleum Gas, etc. In addition to production facilities, the Petitioners also have storage facilities; i.e. Huge tanks with a capacity of 1080 thousand metric tonnes. These storage tanks are situate along the northern and western boundaries of the Petitioners' refinery. The Petitioners produce, refine, store and deal in materials that are highly inflammable.

3. The subject matter of the petition is the land bearing CTS Nos.1 to 12,355 to 366 of village Mahul, Taluka Kurla. This land is at a distance of about 80 meters from the boundaries of the land on which the refinery of the Petitioners is situated. This land was originally owned by Mafatlal Fine Spinning and Manufacturing Company Ltd. The said land was partly in special industrial zone (I-2) and partly in residential zone. This was as per the development plan of M-Ward sanctioned in the year 1967. A portion of the said land was reserved for the public amenities, such as garden and development plan road. In the year 1984 when the draft development plan was published, the land was proposed to be marked as "No Development Zone". It appears that this land under the provisions of the Urban Land Ceiling Act, which came into force in the year 1976, was found to be surplus. During the process of the suggestion/objections as per the Maharashtra Regional Town Planning Act, 1966 (herein after referred to as the "Act") to the draft development plan, the land owner and the Petitioners made a representation for deletion of the designation of the land as No development zone. It was requested that the land should be placed in residential zone, because the Petitioners and the land owners had entered into a MOU for development of the land for construction of staff quarters for the employees of the Petitioners. At the request of the Petitioners and the owners, the Urban Land Ceiling Department of the Government of Maharashtra made an order under Section 20 of the Urban Land Ceiling Act dated 25-1-1990 exempting the land from the provisions of the Urban Land Ceiling Act for using the said land for construction of residential quarters for the staff and workers of the Petitioners. Thereafter, by notification dated 8-5-1992 while sanctioning the draft development plan, the said land admeasuring about 18.30 HA was included in the residential zone for housing for staff and workers of the Petitioners. It was also a condition imposed that the land should also be reserved for municipal retail market, recreation ground, maternity home and Dispensary apart from the normal lay out conditions. Thus, at the request of the Petitioners, the Government firstly exempted the land from the provisions of the Urban Land Ceiling Act subject to the conditions that the land should be mainly used for staff quarters of the Petitioners. Thereafter, amendment to the draft development plan was also approved and the land was now designated mainly to be used for the staff quarters of the Petitioners. The amended draft development plan came into force on 15-7-1992. Thereafter, it appears that there was correspondence between the Respondent No.8, who was the developer, who was to carry on development on the land and the Petitioner No.1 about starting of the development on the land. But nothing was done by the Petitioners. On 4th August, 1993, a letter was addressed by the Petitioners to the Government of Maharashtra expressing doubt about the validity of the exemption order made under Section 20 of the Urban Land Ceiling Act because of the judgment of the Supreme Court in the case of S. Vasudeva Vs. State of Karnataka and ors., AIR 1994 SC 93. In that judgment, according to the Petitioners, the Supreme Court had laid down that after exempting the land from the provisions of the Urban Land Ceiling Act, the vacant land cannot be transferred. That letter was replied to by the Government of Maharashtra. The reply is dated 21st September, 1993. Paragraphs 2 and 3 of that letter are relevant. They read as under :

"I am directed to state that in this case surplus vacant land is owned by M/s. Mafatlal Fine Spinning and Manufacturing Co. Ltd., and the same is exempted for construction of residential flats for the employees of your Corporation through Eversmile Construction Co. Pvt. Ltd. The ownership of land will remain with M/s. Mafatlal Fine Spinning and Manufacturing Company until all the tenements are constructed and conditions of the exemption order are fulfilled by that Company. No sooner the land becomes fully developed it will be out of the purview of the Urban Land Ceiling Act. As mentioned in the latter part of the condition No.9 of the exemption order it shall be permissible for the landholder to transfer the exempted land in your favour at the stage when the project is completed.

Since vacant land is not being transferred from one to other, the Hon'ble Supreme Court's judgment dt.30th March, 1993 in the case of Shri. S. Vasudeva Vs. State of Karnataka does not become applicable in the present case."

Despite this reply from the State Government, it appears that there was no response from the Petitioners. Therefore, the developer-Respondent No.8 addressed a communication to the Petitioners dated 31st May, 1994. The last paragraph of that letter is relevant. It reads as under :

"We have now realized that BPCL is not interested to pursue this matter, hence we are giving final notice to you by this letter that on or before 15th June, 1994 if we do not concluded this transaction we shall presume that BPCL is not interested and we shall be free to approach Government of Maharashtra with a request to make necessary change in the Development Plan for 'M' Ward striking BPCL and keeping the land for general housing i.e. The land should be put under residential zone and simultaneously we shall approach housing department of Government of Maharashtra for converting the NOC into general NOC in accordance with the same scheme operating under Section 20(i) of ULC Act."

4. This letter was replied to by the Petitioners. The reply is dated 15-6-1994. Paragraph 4 of that reply is relevant. It reads as under :-

"In the meantime, the Supreme Court of India in its judgment dated 30th March, 1993 in the matter of S. Vasudeva Vs. State of Karnataka & Ors. (AIR 1994 SC 923) raised certain doubts about the Governments' power to grant an exemption order of the nature granted by the Government of Maharashtra to the land owners. We therefore sought clarification from the Government of Maharashtra and until such clarification is received, we are unable to take any further steps in the matter. In view of the above, we intend to proceed further in the matter on our being satisfied about the legality of the proposed transaction."

5. It is pertinent to be noted that though on 15-6-1994 when this reply was written, clarification from the Government of Maharashtra dated 21st September, 1993 was already received by it was forgotten. It appears that in this situation, the Government in the Urban Development Department received a letter from the Slum Rehabilitation Authority dated 24-8-1998 requesting for modification of the exemption order in relation to the land by permitting the land to be used for rehabilitation of the slum dwellers. The Respondent No.8 developer also appears to have submitted a proposal of the similar nature dated 7th April, 1999 and therefore, the Government of Maharashtra issued an order dated 7th April, 1999 modifying its earlier order dated 25th January, 1990. Now, the land was exempted from the provisions of the Urban Land Ceiling Act for the purpose of construction of houses for the rehabilitation of the slum dwellers. It appears that before issuing this corrigendum or modification, the Petitioners were not given any notice. It appears that even a copy of this order was not immediately forwarded to the Petitioners. However, it is not disputed before us that along with his letter dated 3-2-2000 the Collector, Mumbai (Suburban) had forwarded a copy of the modified order passed under Section 20 of the Urban Land Ceiling Act. It is also common ground that the Petitioners did not take any steps to challenge the corrigendum or modifications of the order passed under Section 20 of the Urban Land Ceiling Act, till they amended their petition to include a prayer for setting aside the order.

6. It appears that the Intelligence Bureau in the Ministry of Government of India had addressed a letter dated 5th July, 2000 to the Collector, Mumbai. It appears from the letter that the letter was addressed because the Intelligence Bureau had received a communication from the Petitioners due to construction of activities that was started by Respondent No.8 after exemption order was modified. The Intelligence Bureau in that letter sated thus :

"However, as the land belongs to a private party and not to the affected party (BPCL & HPCL), it may not be possible to do anything in the matter. The only viable alternative that one could think of is to have the land alongwith the existing structure purchased, if possible, by the BPCL & HPCL as suggested by you and thereafter converted the entire area as a green belt or keep the same earmarked for future expansion. I would rather request you to pursue the matter with the State Govt. before it is too late for such an action."

7. After receiving the communication from the Intelligence Bureau, it appears that the Collector, Mumbai communicated the same to the Petitioners by addressing a letter dated 18th July, 2000. The Petitioners by letter dated 7th October, 2000 informed the Collector that "Our Board considered the matter and approved in principle acquisition of the said plot of land admeasuring approximately 1,84,000 sq. meters, through land acquisition proceedings by Government of Maharashtra. In view of the above we now seek your assistance for commencement of necessary acquisition proceedings at the earliest so that security/safety threat to vital installations in this area can be reduced".

8. It appears that the Municipal Corporation had asked the builder to stop the construction work by notice dated 31-1-2001. Therefore, on learning that the Petitioners Board had agreed to acquire the land under the Land Acquisition Act, the Builder on 10-2-2001 served a purchase notice under Section 49 of the Act. It appears that, thereafter, again there was no further development till a meeting was held on 22-10-2003, which was presided over by the Principal Secretary, Home Department, and attended by the representatives of the Police Commissioner, Mumbai, representatives of the Petitioners, other police officers as also the representatives of the developer-Respondent No.8 and the Collector (Mumbai). The minutes are relevant. Therefore, they are quoted verbatim.

"The Government of India, Ministry of Home Affairs have referred the matter involving the security scenario at the refinery of Bharat Petroleum and the establishments like Bhabha Atomic Research Center, Tata Power etc. M/s. Eversmile Construction Co. has obtained permission at Mahul creek area, there on a plot of private land, for residential purpose. During discussions, it was mentioned that the land was originally earmarked by the BPCL for their residential quarters and a tripartite agreement between the Mafatlals, the original owner of the land, M/s. Eversmile Construction Co. and BPCL was arrived at. However, for some reasons both Mafatlal and BPCL did not follow up on the agreement and the Eversmile Construction Co. went ahead with the project of Construction of residential premises after obtaining the necessary clearance from the concerned agencies of the State Government including the Department of Urban Development. However, of late an issue regarding violation of the CRZ rules has cropped up and the same is waiting for Government of India's final decision. Meanwhile, the meeting noted that in the vicinity of all these installations, the gaothan of village Mahul already exists and is probably expanding- leading to major security threats. The meeting therefore, felt that the following decision needs to be taken :-

1) The land in question at Mahul Creek is to be purchased by Bharat Petroleum Corporation Ltd., as they feel that construction on the land will jeopardize the security perspective.

2) The Collector, Mumbai Suburban will inform BPCL regarding the detailed procedure of land acquisition alongwith it's cost implications.

3) The BPCL may immediately send a proposal for land acquisition to the Revenue and Forest Department of this State under intimation to the Collector, Mumbai Suburban District.

4) The compensation, if any, will be borne by BPCL.

5) M/s. Eversmile Construction will be officially informed about the acquisition proceedings.

9. After this meeting the Collector by letter dated 24-11-2003 furnished all the details regarding submission of the proposal for acquisition of the land to the Petitioners. The Collector, thereafter, addressed another letter dated 2-12-2003. That letter reads as under :-

"Please refer to this office letter of even number dated 24-11-2003 on the abovementioned subject.

It is mentioned in the above letter that the total area held by M/s. Eversmile Construction company Pvt. Ltd. Is 72408.32 sq. meters. However, the company has pointed out by its letter dt.29-11-2003 that the actual area held by the Company is 1,82,295.00 sq. mtrs.

The Company has further stated that out of the total area adm. 1,82,295.00 sq. mtrs. An area adm. 25,756.50 sq. mtrs., is affected by various D. P. reservations and the same has been handed over by them to MCGM in accordance with D.C. Regulations. Thereafter, the net land to be acquired by BPCL is 1.56.538.50 sq. mtrs. The total cost of land as per the Ready Reckner for 2003 comes to Rs.84,53,07900/-. In addition to that company will have to bear 30% solatium and 12% additional component over the land cost.

You are requested to submit your proposal for acquisition of the land adm. 1,56,538.50 sq. mtrs. In the prescribed form in triplicate alongwith required information as mentioned in our letter dt.24-11-2003."

10. Thus, the Collector informed the Petitioners the measurement of the land to be acquired as also the approximate amount of compensation that will have to be paid by the Corporation. It appears that though thereafter there was correspondence between the Collector and the Petitioners to this date, proposal for acquisition of the land together with the amount to be deposited with the Collector has not been submitted by the Petitioners. In the meantime, the Government of Maharashtra in the Urban Development Department issued an order dated 18th October, 2001 under Section 37 of the Act for effecting minor modifications in the final development plan in relation to the land so that the designation of the land in the final development plan is in the line with the order made by the Government under Section 20 of the Urban Land Ceiling Act. Pursuant to the order issued by the Government, a public notice dated 4th August, 2005 was issued by the Corporation inviting objections and suggestions to the proposed minor modifications. Admittedly, no individual notice was issued to the Petitioners. The Corporation, thereafter, submitted proposal to the Government of Maharashtra and the Government of Maharashtra issued a notification dated 30th March, 2006 making minor modifications in the development plan brining the plan in line with the exemption order passed under Section 20 of the Urban Land Ceiling Act. With the result, now the land could be used for rehabilitation of the slum dwellers and the footpath dwellers. By conveyance dated 30th March, 2007 to which the owner Mafatlal industries, Respondent No.8, Slum Rehabilitation Authority and the Municipal Corporation are parties, the land has been conveyed to the Corporation for being used for the purpose for which it is designated in the final development plan. Though the copy of this document has been produced on record, there is no prayer in the petition for setting aside this conveyance. Thereafter, the present petition was filed on 1-9-2007 initially challenging only notification issued under Section 37(1) effecting minor modification in the final development plan in relation to the land. It appears that, however, after replies were filed by the Respondents, petition was amended and even the order issued by the State Government making modifications in the order passed under Section 20 of the Urban Land Ceiling Act has also been challenged.

11. The Respondents have filed their replies. We have heard the learned Counsel appearing for the Petitioners and of the Respondents in detail.

12. Before dealing with the rival submissions we will like to indicate what can be taken as admitted and/or established positions on record;

(i) The land in question is near the land of the Petitioners, where the Petitioners have set up their refinery and the distance is about 90 meters between the two lands;

(ii) The land was owned by Mafatlal Industries. They had entered into an arrangement with the Respondent No.8 for development of the land.

(iii) On commencement of the Urban Land Ceiling Act 1976, the land was found to be surplus under the provisions of that Act.

(iv) A tripartied agreement was entered into between the owners Mafatlal, the Petitioners and the Respondent No.8-developer for using substantial portion of the land for construction of staff quarters for the employees of the Petitioners.

(v) A joint application was made by the three parties to the Government in Urban Development Department for exemption of the land from the provisions of the Urban Land Ceiling Act by making an order under Section 20 of the Act so that the land can be developed by the Respondent No.8 and staff quarters for the Petitioners could be constructed;

(vi) On 25-1-1990, the Government accepting the request made by the land owner, developer and the Petitioners exempted the land from the provisions of the Urban Land Ceiling Act for using the said land for construction of residential quarters.

(vii) In the original draft development plan, the land was shown as being designated as No Development Zone.

(viii) In view of the order dated 25-1-1990 passed under Section 20 of the Urban Land Ceiling Act, when the draft development plan was sanctioned by notification dated 8-5-1992, the land was now designated as residential zone for housing the staff and workers of the Petitioners;

(ix) Thus, now, because of the orders passed under the Urban Land Ceiling Act and the provision made in the development plan, the Petitioners could have gone ahead with the construction of the staff quarters on the land. But nothing was done.

(x) The Government issued corrigendum on 7th April, 1999, at the request of the Slum Rehabilitation Department and the Developer, modifying its earlier order dated 25-1-1990 now the land was exempted from the provisions of the Urban Land Ceiling Act for being used for rehabilitation of the Slum dwellers and footpath dwellers. This order was communicated to the Petitioners by the Collector by sending copy thereof along with his letter dated 3-2-2000. This order was not challenged by the Petitioners till this petition was amended in the month of January, 2008 and prayer was made for setting aside the corrigendum. By letters dated 24-11-2003 and 2-12-2003 the Collector, Mumbai had supplied information to the Petitioners about the measurement of the land to be acquired and approximate price that will have to be paid by the Petitioners. Till this date neither the amount has been deposited with the Collector nor a proposal has been submitted for acquisition of the land.

(xi) Though there is a prayer made in the petition that the final development plan shall be modified to show the suit land in no development zone, but to this date neither any application has been made by the Petitioners either to the Corporation or to the State Government for initiating the process for such modification in the final development plan.

13. Now in the light of these admitted and established positions on record, we will examine the submissions advanced on behalf of both sides. But before doing that we will like to point out here that even accepting the case of the Petitioner at it best or highest the Petitioners cannot be granted any relief in this petition. Assuming that there is a security threat to the refinery of the Petitioners because of the designation of the land in the final development plan for rehabilitation of the slum dwellers and footpath dwellers, in our opinion, that designation can be cancelled or annulled only in accordance with the established law and merely because there is an apprehension of security threat, the established law cannot be ignored. In other words, the measures for safeguarding the security interest will also have to be taken in accordance with the law. Taking the case of the Petitioners at its highest is that the corrigendum issued under Section 20 of the Urban Land Ceiling Act is invalid because it has been issued without issuing any notice to the Petitioners. Even if this case is accepted and corrigendum issued by the State Government is set aside, then it will also not serve any purpose of the Petitioners. Because the consequence of setting aside the corrigendum issued by the State Government would be that the original order will remain in force. By the original order the land was exempted from the provisions of the Urban Land Ceiling Act so that it can be used for housing the staff of the Petitioners. It is an admitted position before us that the Petitioners do not want to house their staff on the land and that they want the land to be in the no development zone. The land was exempted from the provisions of the Urban Land Ceiling Act, because there was tripartied MOU between the Petitioner No.1, the owner and the developer. Firstly, it is clear from the record that the M.O.U. is no longer in force and secondly now the owner of the land is the Municipal Corporation and the land has been transferred to it by the owner and the developer for the specific purpose of developing it for rehabilitation of the slum dwellers. We have not been shown anything to establish that by an order made under Section 20 of the Urban Ceiling Act the surplus land can be exempted for being designated as no development zone. An order made under Section 20 of the Urban Land Ceiling Act is an order made in favour of the land owner exempting the land from the provisions of the Urban Land Ceiling Act so that the land does not become surplus and owner continues to own the land. It is hard to believe that any owner will seek exemption of his land from the provisions of the Urban Land Ceiling Act so that the land can be designated as no development zone. It is further to be seen here that two developments have taken place after the exemption order under Section 20 was made. (i) Relying on that exemption order and the modification in the final development plan, the owner transferred the land even before this petition was filed in favour of the Mumbai Municipal Corporation for the specific purpose of using it for rehabilitation of the slum dwellers and (ii) the second development is that the Urban Land Ceiling Act has been repealed. Therefore, it is extremely doubtful whether now in view of repeal of the Urban Land Ceiling Act, the State Government would be in a position to make a fresh order under Section 20 of the Urban Land Ceiling Act in relation to the land. In any case there is no prayer in the Petition asking for a direction to the State Government to issue a fresh exemption order under Section 20 of the Urban Land Ceiling Act. In our opinion, therefore, even if the relief claimed by the Petitioners in relation to the corrigendum issued under Section 20 of the State Government is granted, it will be futile, because no purpose would be served because of issuance of such a writ.

14. The case of the Petitioners in so far as the minor modification effected in the final development plan is concerned, is that the minor modification effected is invalid because it has been effected without following the mandatory procedure laid down by Section 37. If this case is accepted and the minor modification is set aside, then the designation of the land in the original plan will stand and there the land is earmarked for construction of staff quarters of the Petitioners. The Petitioners, as observed above, do not want to use the land for staff quarters. Now, the land vests in the Corporation. Therefore, no useful purpose can be served by issuing a writ setting aside the notification making minor modification in the final development plan. The Petitioners do not want the land to be used for staff quarters, but they want it to be designated in the final development plan as no development zone. For designation of the land as no development zone in the final development plan, it is not necessary to set aside the minor modification which has been made in the final development plan, because even if the land is designated in the final development plan because of the minor modification for being used for rehabilitation of the slum dwellers and footpath dwellers then also the State Government has the power to modify the plan and designate the land as no development zone. In other words, for designation of the land as no development zone in the final development plan, it is not necessary that the land in the final development plan should be designated for being used for housing the staff of the Petitioners. That can be done even if in the final development plan the land is designated to be used for housing slum dwellers and footpath dwellers. The power of the Government to effect minor modification in the final development plan in relation to a land does not get exhausted on making one minor modification. The power can be exercised from time to time as the need or occasion arises. Thus, even if a writ is issued setting aside the minor modification in the final development plan which is challenged in the petition, it will also be futile.

14-A. Had it been the case of the Petitioners that they want to use the land for their staff quarters, they would have been entitled to a writ setting aside the minor modification made in the final development plan, on the court accepting their case that the minor modification has been brought about without following the mandatory procedure. The Petitioners have also prayed by prayer clause (iii) for writ of mandamus directing the Respondent No.1-State Government to modify the final development plan and reserve and designate the land as no development zone in the development plan. The power of the State Government to make minor modification in the final development plan is contained in Section 37. Sub-section 1 of Section 37 empowers the State Government to issue direction to a Planning authority to initiate proposal for effecting minor modification in the final development plan which is indicated in the order of the State Government. Once such an order is issued by the State Government, the Planning Authority is obliged to follow the procedure and submit the proposal to the State Government and then the State Government can make minor modification in the final development plan. Though the Petitioner No.1 is claiming a writ of mandamus directing the State Government to initiate the process and designate the land in the final development plan as no development zone, to this date the Petitioner No.1 has not made any demand with the State Government for designation of the land as no development zone. In the final development plan, the land came to be designated for being used for housing the staff of the Petitioner No.1, because the Petitioner No.1 requested the Government to exempt the land from the provisions of the Urban Land Ceiling Act for that purpose and that demand was accepted and the final development plan was modified to bring it in line with the order made under Section 20. Therefore, if now the Petitioners wanted the final development plan to be again changed, it should have approached the State Government and invoked its power under Section 37. A petition seeking issuance of writ of mandamus has to be preceded by a distinct demand for performance of a duty in order to give the party an opportunity to consider whether he should comply or not and such demand must be shown to have met by refusal either by words or by conduct, so that the court may be satisfied that the party complained off is determined not to do what is demanded and the demand must be made prior to the application. The Supreme Court has considered this aspect of the matter in its judgment in the case of Saraswati Industrial Syndicate Ltd. Vs. Union of India, AIR 1975 SC 460. The observations of the Supreme Court in paragraph 24, in our opinion, are relevant. They read as under :-

"24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorar would encounter when no quasi-judicial proceedings was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be, stated as we find it set out in Halsbury's Laws of England (3rd edition. Vol.13, p.106)."

15. Therefore, unless the Petitioner No.1 approaches the State Government requesting it to initiate the process for effecting again minor modifications in the final development plan and designate the land as no development zone and the State Government refuses to do so, in our opinion, we will not be justified in issuing a writ of mandamus directing the State Government to initiate the process for designation of the land in the final development plan as no development zone. One more aspect, in our opinion, that has to be pointed out at this juncture is that what is claimed in the petition is a writ of mandamus directing the State Government to designate the land in the final development plan as no development zone. It is impossible to issue such a writ in view of the provisions of Section 37 of the Act. Under Section 37 the State Government does not have absolute power in so far as minor modifications in the final development plan are concerned. Perusal of provisions of Section 37 of the Act shows that the State Government and the Planning Authority is required to give general public as also the persons affected an opportunity to raise objections and it is only after considering the objections that the State Government can effect minor modification. Therefore, at the most a writ that the court will be able to issue to the State Government is to initiate the process for designation of the land in the final development plan as no development zone and not a writ directing the State Government to designate the land in the final development plan as no development zone. But such a prayer is not to be found in the petition. There is one more reason, in our opinion, why the Petitioner No.1 is not entitled to such a relief. Perusal of the minutes of the meeting dated 22-10-2003, which we have quoted above, shows that the Government was not averse to the idea of preventing any construction taking place on the land. In other words, the Government had not rejected the idea that no construction is to be permitted on the land. But the condition that was put by the Government was, if the land is to be designated as no development zone, then the Petitioner No.1 should acquire the land through the process of compulsory acquisition of the land. Acting on that decision, by letters dated 24-11-2003 and 2-12-2003 the Collector, Mumbai had also communicated to the Petitioner No.1 the measurement of the land as also the amount that will have to be deposited by the Petitioner No.1 with the Collector for initiating the process for acquisition of the land. It is clear from the record that even the owner was not averse to the idea of the land being acquired under the Land Acquisition Act, because the owner himself had given a purchase notice under Section 49 of the Act dated 10-2-2001. Therefore, if the Petitioner No.1 was firm on its decision not to permit any construction on the land, then it was for the Petitioner No.1 to comply with the requirement of the letters dated 24-11-2003 and 2-12-2003 from the Collector and submit the proposal for acquisition of the land and deposit the necessary amount. After acquisition of the land, it could have moved the Government for designation of the land as no development zone in the final development plan. But no such thing was done. On the contrary, the material available on record shows that the Petitioner No.1 itself wanted to use the land for some purpose. What is stated in paragraphs 5 & 6 of the letter dated 12-1-2007 addressed to the Ministry of Home Affairs, Government of India by the Petitioner No.1, in our opinion, is relevant. They read as under :-

"5. In the meanwhile, there were Inspections by Intelligence Bureau (IB) team who endorsed our concern and advised us to pursue the matter with State authorities which we did through various correspondences. In fact, Additional Chief Secretary (Home), Govt. of Maharashtra convened a meeting on 22.10.2003, wherein, it was conveyed to us that, BPCL might go for acquisition of this land with whatever structure that had come up by then. Prior to that, we had written to all concerned authorities of the State Govt., requesting them to stop the construction of this plot for security reasons. The Collector, Mumbai Suburban District, had also suggested purchase of this land by BPCL/HPCL (copy of correspondence from Collector, Mumbai Suburban District to IB and reply from IB are enclosed for your kind information).

6. BPCL Management reviewed the suggestion made by local authorities regarding acquisition of the said plot and found that the plot falling under CRZ is of no use, as no facility can be put up on this plot. The amount indicated for acquisition was n the region of Rs.120 crores as per then valuation, basically to compensate the builder. BPCL management did not agree to spend such a huge sum without any usage of the land."

16. Perusal of the above quoted paragraphs shows that the Government was agreeable to the proposal of acquisition of the land for the benefit of the Petitioner No.1 and its designation as no development zone. But the Petitioner No.1-Corporation was not willing to spend the amount indicated by the Collector for acquisition of the land because after acquisition of the land it would not be able to use the land for any purpose. This letter is written in the month of January, 2007 and the present petition has been filed in the month of August, 2007. Thus, it is apparent that in January, 2007 the Petitioner No.1- Corporation was not certain that it wanted the land to be designated as no development zone. Thus, in our opinion, even if the case of the Petitioner No.1 is accepted at highest, no relief can be granted to the Petitioners in this petition. However, as all points involved in the matter have been argued in detail before us, we propose to deal with them.

17. The Petitioners challenge the validity of the corrigendum dated 17th July, 1999 on the ground that by the corrigendum, the order passed under Section 20 of the Urban Land Ceiling Act exempting the land from the provisions of the Urban Land Ceiling Act was made on a joint request made by the Petitioners with the land owner and the developer. It was submitted that in terms of clause 11 of that order the Petitioner No.1 was entitled to a notice before that order was modified. According to the Petitioners, modification of the original order by the corrigendum has been effected in violation of the principles of natural justice and fair play. According to Respondents, however, the corrigendum is not liable to be set aside for failure of the State Government to issue notice to the Petitioner No.1 before issuing the corrigendum, because no prejudice was caused to the interest of the Petitioners by issuance of corrigendum and secondly because the Petitioner No.1 is guilty of latches.

18. Even assuming that the Petitioner No.1 was entitled to a notice before the corrigendum was issued and therefore, the Petitioner No.1 was entitled to challenge the validity of the corrigendum then also in our opinion, challenge to the corrigendum cannot be entertained at the instance of the Petitioner No.1. It is an admitted position that when the Petition was filed in the year 2007 there was no prayer made in the petition challenging the corrigendum. For the first time a prayer was included in the petition challenging the corrigendum in the month of August, 2008. The Petitioners, themselves, have stated in the written submissions filed by them that the said corrigendum was forwarded to the Petitioners under the Collector's letter dated 3-11-2000. Thus, in November, 2000 the Petitioners were aware that the Government has issued the corrigendum. By that time the final development plan was to get to be modified. If the interest of the Petitioners was adversely affected by that corrigendum, it was for the Petitioners to challenge that corrigendum either by approaching the State Government to reconsider its decision or by approaching this court challenging the corrigendum. But the Petitioners did no such things. The explanation that was submitted before us was that the Petitioners did not think of challenging the corrigendum because the Government had agreed to acquire the land compulsorily for the benefit of the Petitioner No.1. In our opinion, that cannot be the explanation for laches. Because at no point of time the Government has said that the land cannot be compulsorily acquired for the benefit of the Petitioner No.1. In other words, so far as the proposal for acquisition of the land is concerned, the change of purpose for which the land is exempted from the provisions of the Ceiling Act is not relevant. In our opinion, if the Petitioners felt aggrieved by the corrigendum, it should have approached the court immediately. It is further to be seen here that now to bring in line the final development plan with the corrigendum, the final development plan has also been amended. The land has also been transferred to the Corporation, so that it can be developed in consonance with the corrigendum. As pointed out above, there is no challenge to the conveyance in the petition even now. If the corrigendum is set aside, the land will stand exempted for being used for construction of staff quarters of the Petitioner No.1. In such a situation, there is no reason why the Corporation should be the owner of the land. The land has been transferred to the Corporation for certain considerations which are relevant only if the land is to be used for housing the slum dwellers. In our opinion, due to unexplained laches the Petitioner No.1 is not entitled to writ of mandamus setting aside the corrigendum issued under Section 20 of the Urban Land Ceiling Act. In our opinion, there is one more aspect why the Petitioners are not entitled to a writ of mandamus setting aside the corrigendum, because even assuming that the corrigendum is not valid and therefore it is set aside, it will result in restoring the original position and the original position is that the land has been exempted from the provisions of the Urban Land Ceiling Act, so that it will be used for housing the staff of the Petitioner No.1 and it is abundantly clear from the record that the Petitioner No.1 has clearly given up the idea of using the land for housing its staff. Therefore, mere setting aside of the corrigendum will not serve the purpose of the Petitioner No.1. The Petitioners have indicated that they want that the land should be designated as no development zone. If that is the purpose, the Petitioners should have moved the government for modifying the order issued under Section 20 of the Urban Land Ceiling Act for exemption of the land for the purpose of keeping it as no development zone. But as indicated above, that also now does not appear to be possible because of the repeal of the Urban Land Ceiling Act. In our opinion, thus, looking at the matter from any point of view, the corrigendum cannot be set aside at the instance of the Petitioners by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

19. The Petitioners challenge the validity of the notification effecting minor modification in the final development plan principally on the ground that it was not served with the individual notice, which according to the Petitioner No.1 is required to be served on it under the provisions of Section 37 of the Act. In our opinion, even assuming that the Petitioner No.1 is right in so contending, the notification effecting the minor modification in the final development plan cannot be set aside at the instance of the Petitioner No.1. Because the whole purpose of effecting the minor modification in the final development plan was to bring the final development plan in line with the order made under Section 20 of the Urban Land Ceiling Act and as we have held that at the instance of the Petitioner No.1 the corrigendum issued under Section 20 of the Urban Land Ceiling Act cannot be set aside, in our opinion, the minor modification in the final development plan of which the whole purpose is to bring the final development plan in line with the corrigendum cannot also be set aside at the instance of the Petitioners.

20. Even assuming that not to be so and even if it is assumed that the Petitioner No.1 is a person who is affected by the proposed modification and therefore it was entitled to be served with individual notice of the proposed modification because of the provision of sub-section 1 of Section 37, in our opinion, in view of the provisions of Section 150(1)(d) of the Act the notification effecting minor modification cannot be set aside by the Court for failure to serve the notice. It is to be seen that because of the provisions of Section 150 of the Act, no act done or proceedings taken under the Act can be faulted for failure to serve a notice on any person where no substantial injustice has resulted from the failure. Therefore, the burden to show that there is a failure to serve notice on the Petitioner No.1 to which the Petitioner No.1 is entitled and also to show that failure to serve notice on the Petitioner No.1 has resulted in substantial injustice on the Petitioner No.1, was on the Petitioner No.1. The submission of the Petitioners in this regard is that the substantial injustice that is resulted because of failure to issue individual notice to the Petitioner No.1 is that had such notice been served on the Petitioner No.1, the Petitioner No.1 would have pointed out the security threats and requested that the minor modification should be made so as to designate the land as no development zone. In our opinion, to examine this contention it is necessary to have a look at the provisions of sub-section 1 of Section 37 and Section 150(1)(d) of the Act. The read as under :

"37(1) Where a modification of any part of or any proposal made in a final Development 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 ninety days from the date of such direction, publish a notice) in the Official Gazette (and in such other manner as may be determined by it) inviting objections and suggestions from any person with 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."

Section 150(1)(d) reads as under :-

"150(1)(d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or"

21. Perusal of the provisions of sub-section 1 of Section 37 shows that an individual notice is required to be served on a person who is likely to be affected by the proposed modification. The original provision in the plan was that the land was to be used for the purpose of housing the staff of the Petitioner No.1 and the proposed modification was that the land was now to be permitted to be used for rehabilitation of slum dwellers and foot path dwellers. It is clear from the record that the Petitioner No.1 had given up the proposal for construction of staff quarters on the land in the year 2000 itself. Therefore, the Petitioner No.1 cannot be said to be a person affected by the proposed modification when the notification was issued in the year 2005 and therefore, the Petitioner No.1 may not be entitled to individual notice. But even assuming that the Petitioner No.1 was entitled to individual notice, then also the Petitioner No.1 will have to show that substantial injustice was caused because of non-service of notice in its capacity as a person who is affected by the proposed modification. So far as the Petitioner No.1 is concerned, the Petitioner No.1 was aggrieved not only by the proposed modification, but the Petitioner No.1 was not happy with the present designation of the land in the final development plan namely for housing the staff of the Petitioner No.1 also. The objection that the Petitioner No.1 wanted to raise was that the land should be designated neither for housing of the Petitioner's staff nor for rehabilitation of the slum dwellers, but it should be kept as no development zone. If that was the intention of the Petitioner No.1, then that could have been done by the Petitioner even without any individual notice and that can be done by the Petitioner even now, even after the modification. A Public notice in relation to the proposed minor modification was issued in the year 2005. Assuming that at that time individual notice had also been served on the Petitioner No.1, it is difficult to believe because of the correspondence that is on record that the Petitioner No.1 would have raised an objection to the proposed minor modification and would have claimed that the land should be designated as no development zone. Because the correspondence on record clearly shows that the Petitioner No.1 wanted to use the land for industrial purpose. From the contents of the letter dated 12-1-2007 which we have quoted above shows that even in the year 2007, the Petitioner No.1 wanted to use the land for some purpose and did not want the land to be kept without any development. It is further to be seen here that the minor modification in the final development plan was to be done to bring that plan in line with the corrigendum issued to the order passed under Section 20 of the Urban Land Ceiling Act, as the Petitioners though they were aware of the corrigendum since the year 2000, had not challenged the corrigendum, could not have raised an objection that the minor modification in the final development plan should not be made so as to bring it in line with the corrigendum. It is further to be seen that the Petitioners could not have raised an objection that in the final development plan, the land should be designated as no development zone, because designation of the land in the final development plan as no development zone would have been contrary to the corrigendum issued by the same State Government under the Urban Land Ceiling Act exempting the land from the provisions of the Urban Land Ceiling Act, so that the owner could use the land for rehabilitation of the slum dwellers and foot-path dwellers. In short, in the absence of any challenge raised by the Petitioners to the corrigendum, the Petitioners could not have raised any objection to the proposed minor modification. So long as the order made under Section 20 of the Urban Land Ceiling Act exempting the land from the provisions of the Act for rehabilitation of the Slum dwellers remains in tact, the Government would be under a duty to make suitable provision in the final development plan so that the land can be used for the purpose for which it has been exempted. In short the minor modification in the final development plan was merely a consequence of the corrigendum issued under the Urban Land Ceiling Act. The Government could not have accepted the objection that the land should be designated in no development zone in the development plan, because accepting such an objection would have been contrary to its own order made under Section 20 of the Urban Land Ceiling Act. In our opinion, therefore, it cannot be said that, assuming that the Petitioner No.1 is an affected person, failure to serve individual notice on the Petitioner No.1 has resulted in any substantial injustice to the Petitioner No.1. Because of the view that we have taken we do not think it necessary for us to consider various judgments that were read before us on the question whether the requirement of issuing notice under Section 37 is a mandatory requirement or a directory requirement. In our opinion, the language of provision of Section 37 and Section 150(1)(d) of the Act are absolutely clear that a person who is affected by the proposed modification is entitled to individual notice and failure to serve notice on him will not vitiate the final action taken unless he satisfies the court that failure to serve individual notice on him has resulted in substantial injustice. The burden of showing that failure to serve a notice has resulted in substantial injustice is on the person who is challenging the action. In our opinion, therefore, at the instance of the Petitioner No.1, minor modification made to the final development plan also cannot be set aside. It appears that the only way out of the situation is for the Petitioner No.1 to take steps to acquire the land in accordance with law and then move the Government to effect minor modification of the final development plan to change the designation of the land. If the land is acquired, the effect of the order made under Section 20 of the Urban Land Ceiling Act would go away and therefore the State Government would be free to change the designation of the land for suitable purpose. We make it abundantly clear that if so advised even after the final modification effected by the Government, the Petitioner No.1 is free to approach the State Government or the Planning Authority for designation of the land as no development zone, if according to the Petitioner No.1 it is necessary to do so in public interest. It goes without saying that if the Petitioner No.1 makes such an approach, the Planning authority and the State Government will consider the same in accordance with law and on the basis of the material produced before them.

22. The last aspect that needs to be considered is whether designation of the land for rehabilitation of slum dwellers and footpath dwellers is violative of the provisions of Article 14 of the Constitution of India. According to the Petitioners, while effecting minor modification in the final development plan, the State Government and the Planning Authority failed to take into consideration the security threats to the refinery of the Petitioner No.1, which is a national assets. There can never be two opinions that if a particular development on any land is likely to increase security threat to a large establishment which is of national importance like the Petitioner No.1's establishment, then that aspect is required to be taken into consideration while permitting the development. So far as this aspect of the matter is concerned, it is clear that in the meeting held on 22-10-2003 which was attended by the Principal Secretary of the Government of Maharashtra in the Department of Home, the Police authority, representatives of the land owner, developer and the Petitioner No.1, the security aspect was considered and it was decided that the Petitioner No.1 will acquire the land and no construction will be permitted on the land. The Petitioner No.1 was also informed about the measurement of the land and the approximate price, but the Petitioner No.1, it appears, was not willing to go ahead. With the result till today no steps have been taken for acquiring the land by the Petitioner No.1. In our opinion, therefore, the Petitioner No.1 cannot find fault with the Government for ignoring security aspect. Before us, at the start of the hearing of the matter, affidavit dated 2nd May, 2009 by one Mr. Ankush S. Garge, Dy. Secretary, Home Department, State Government has been filed. Paragraphs 2 to 6 of that affidavit are relevant. They read as under:-

"2. The State Government is fully alive to the security concerns in this case. The Hon'ble Home Minister-State Government reviewed the security measures with regard to the Petitioners Refinery at a meeting which was chaired by him and attended by the following officers :-

(i) Additional Chief Secretary, Home Department

(ii) Commissioner of Police, Mumbai

(iii) Joint Commissioner of Police-Administration

(iv) Deputy Secretary, Urban Development Department.

3. During the said meeting, the State Government has agreed to consider the possibility of meeting the security concerns of the Petitioners by acquiring buildings for the purpose of police housing on the side facing the refinery of the Petitioners. The details of such acquisition will be worked out on receipt of a security audit that will be conducted by the Police.

4. In view of the said decision, a letter was addressed to the Municipal Commissioner dated 27th April, 2009, recording the same. I say that based on the said letter, the Additional Chief Secretary (Home) requested the Learned Advocate General to inform the Hon'ble High Court accordingly.

5. I say that accordingly, a security audit is to be done for the purpose of identifying the number of buildings to be acquired by the State.

6. I respectfully submit that the aforesaid measures are in line with the recommendations made by the Government of India, Ministry of Home Affairs in their letter dated 14th March, 2007 to the Chief Security, Government of Maharashtra, a copy of which is annexed as Exhibit-N to the above petition."

23. It is evident from this affidavit that both the Home Ministry of the Government of India as also the Home Department of Government of Maharashtra are fully aware of the security concern of the establishment of the Petitioner No.1 and necessary steps in that regard are being taken. What steps are to be taken to secure the establishment of the Petitioner No.1 is in the realm of the policy decisions of the State Government and the Central Government. The correspondence on record and the affidavits referred to above shows that aspect is being looked into by the authorities. We have nothing before us, which will raise doubt about the sincerity or bonafides of the authorities in this regard. In this view of the matter, therefore, in our opinion, the notification effecting minor modification in the final development plan cannot be faulted on the ground of security threats.

24. It is further to be seen here that at no point of time the State Government or the Collector who is the authority dealing with the land acquisition has declined to compulsorily acquire the land for the benefit of the Petitioner No.1. In fact the correspondence available on record shows that the Government was agreeable to the idea of the land being retained without any construction on its acquisition for the benefit of the Petitioner No.1. Even if security perception of the Petitioner No.1 in relation to its establishment is true, then the Petitioner No.1 can even today move the authorities for acquisition of the land under the provisions of the Land Acquisition Act and the land can be acquired under the provisions of Land Acquisition Act, if it is in public interest to do so, even if the land is designated in the final development plan for being used for rehabilitation of slum dwellers and the foot-path dwellers. Section 128 of the Act specifically permits such a course being adopted. But the material on record shows that the Petitioner No.1 itself was not serious about acquiring the land and not permitting any construction on the land. We have quoted from the letter of the Petitioner No.1 itself that the Petitioner No.1 was not agreeable to the idea of paying so much money for acquiring the land and thereafter not using the land for any purpose. In our opinion, even if the Petitioner No.1 wanted to acquire the land and then use it for some purpose and did not want to leave the land without any construction then the proper course to be followed was to acquire the land and then move the Government for suitable modification in the final development plan, so that the land can be used by the Petitioner No.1 for such purpose as may be in line with the security interest. But the correspondence on record shows that the approach of the Petitioner No.1 was totally misdirected and confused. It is clear that even now nothing prevents the Petitioner No.1 from moving for compulsorily acquisition of the land and thereafter for its designation for a suitable purpose in the final development plan and for achieving that it is not necessary for the Petitioner No.1 to challenge the notification effecting minor modification in the final development plan.

25. For all these reasons, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.

26. At the request of the learned Counsel appearing for the Petitioners, it is directed that for a period of six weeks from today, even if the Corporation grants occupation certificate in relation to the buildings in question, it shall not be acted upon.

Certified copy expedited.

Petition dismissed.