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Citation Codes
Equivalent Citations
citation codes
Attorney(S)
  • .
Judges
  • Desai A.A.
  • Parkar S.S.
Acts
  • Section 1 to Section 58 which include Section 31, Sub-section (6)
  • provisions of the Bombay Town Planning Act, 1954.
  • Maharashtra Regional Town Planning Act, 1966.
  • Development Authority Act, 1976.
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Attorney(S)
  • .
Judges
  • Desai A.A.
  • Parkar S.S.
Acts
  • Section 1 to Section 58 which include Section 31, Sub-section (6)
  • provisions of the Bombay Town Planning Act, 1954.
  • Maharashtra Regional Town Planning Act, 1966.
  • Development Authority Act, 1976.
See more information ...
Smart Summary

Factual and Procedural Background

This petition was filed by public-spirited residents of the Salisbury Park area of Pune challenging a Notification dated 12 February 1993 which dereserved 1.50 acre from Plot No. 438 (part of an area shown as Salisbury Park) within the municipal limits of the Pune Corporation. The petitioners contended that the dereservation was mala fide, arbitrary, lacking good faith and motivated by collateral purposes.

Chronology and relevant procedural facts (as stated in the opinion):

  • On 15 August 1966 a final Development Plan for Pune city was sanctioned under the Bombay Town Planning Act, 1954.
  • After introduction of the Maharashtra Regional Town Planning Act, 1966, the Development Plan continued under that Act. A draft Development Plan was published on 18 September 1982 purportedly under Section 26(1) of the Act.
  • Plot Nos. 437 and 438 were shown in these Plans as earmarked for park and garden; the Development Plan was finalised and sanctioned on 5 January 1987.
  • Respondent No.3 (the original owner) did not object to reservation. Respondent Nos. 4–10 purchased the property (allegedly in December 1986) and then initiated the proposal for dereservation.
  • The State Government issued the impugned Notification dereserving 1.5 acres after hearing the Planning Authority and receiving a report from the Municipal Corporation.
  • The petition ultimately proceeded to a hearing before Ashok A. Desai, J., who delivered the opinion summarized here.

Legal Issues Presented

  1. Whether, in the absence of an express statutory prohibition, the State/Government is at liberty to dereserve (dispose of) land earmarked in a Development Plan for park and garden purposes.
  2. Whether the impugned dereservation of 1.5 acres could be characterized as a permissible "modification" (including under Section 37) of the sanctioned Development Plan or whether it amounted to a revocation inconsistent with the statutory scheme.
  3. Whether the Town Planning Scheme (sanctioned later) prevails over the previously sanctioned Development Plan.
  4. Whether the Court may refrain from scrutiny under Article 226 on the ground that the reservation or extent of area for amenities is an expert domain and hence not subject to judicial reassessment.
  5. What equitable remedial measures are appropriate where purchasers claim investment-backed expectations but the alleged change affects an environmental amenity deemed to cause irreparable injury if lost.

Arguments of the Parties

Petitioners' Arguments

  • The dereservation defeated the public purpose for which the land had been earmarked (environmental amenity), and thus could not be arbitrarily withdrawn.
  • The action was mala fide, lacked good faith, was arbitrary, and motivated by collateral purposes.
  • Reliance was placed on the decision reported as (1991) 4 SCC 54 (Bangalore Medical Trust) to support that reservation of open spaces for parks/playgrounds is a legitimate statutory exercise and should be protected.

Respondents' and State/Corporation Arguments

  • The State and purchasers contended the Bangalore Medical Trust case dealt with the Bangalore Development Authority Act, 1976 (which contains a specific prohibition in Section 38-A) and that the ratio there is inapplicable as the local Act lacks an identical provision.
  • Counsel for the Corporation (Mr. Ketkar) submitted that the dereservation proposal was mooted by the Corporation at the behest/dictate of the State Government.
  • It was argued on behalf of respondents that Section 37 permitted a minor modification and that only 1.5 acres (out of the total earmarked area) was dereserved; thus the change was a permissible incidental modification.
  • One of the purchasers (through Mr. Anturkar) relied on Section 22-A (as defining substantial modification) and argued what was dropped was less than the threshold prescribed; the argument noted that Section 22-A was incorporated by amendment in 1994 (i.e., after the impugned Notification).
  • Respondents also contended that area/reservation decisions are matters of expert domain and, once the Government and Town Planning Authority have decided, courts should not reassess the decision.
  • All purchasers argued equity: they had invested and would suffer hardship/loss if dereservation were set aside; they sought equitable accommodation (such as conditions) to protect their investment while preserving environmental interests.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
(1991) 4 SCC 54 (Bangalore Medical Trust) Authority for the proposition that reservation of open spaces for parks and playgrounds is a legitimate exercise of statutory power related to protection of residents from ill-effects of urbanisation; the Supreme Court deprecated executive or governmental dictation of the statutory authority's decision (particularly where statutory prohibition exists under a different enactment - e.g., Section 38-A of the Bangalore Development Authority Act). The court relied on the principle that reservation of open spaces is a legitimate public interest. It also noted that the precise statutory context in Bangalore Medical Trust differed (because of an express prohibition in the Bangalore Act), but adopted the underlying public-interest reasoning to reject the impugned dereservation absent proper statutory or expert-process justification.

Court's Reasoning and Analysis

The Court proceeded by examining statutory text, the factual record surrounding the Development Plan, the procedural history of the dereservation and the parties' contentions. Key steps in the Court's analysis were:

  1. Statutory context and absence of express prohibition: The Court acknowledged that, unlike the Bangalore Development Authority Act (which contains Section 38-A prohibiting disposal of areas reserved for parks/playgrounds), the State Act before the Court did not have a directly comparable provision. This raised the question whether the Government could lawfully dereserve land earmarked for park/garden where no express prohibition exists.
  2. Examination of Sections 37 and 22-A: The Court considered the respondents' reliance on Section 37 (which earlier provided for "minor modification") and Section 22-A (a later 1994 amendment defining "modification of substantial nature"). The Court observed that at the time of the impugned Notification these 1994 amendments were not in force and that historically the Legislature had not permitted substantial changes by the Planning Authority without proper process. The Court emphasized that dereserving a portion of land revokes its use for garden/park purposes and is not merely an alignment or minor alteration; thus the authorities could not validly rely on Section 37 to justify the impugned Notification.
  3. Process and expert consideration: The Court noted that the Development Plan consistently earmarked the full area (3.5 acres) for park/garden up to 1987, based on expert opinion. For dereservation there was no pointed-out reconsideration on a special or expert basis; rather, the process began with an application by the subsequent purchasers (Respondent Nos. 4–10). The Court found this initiation inconsistent with the statutory process and lacking the kind of expert reassessment that would justify revocation of the reservation.
  4. Town Planning Scheme vs Development Plan: The respondents' argument that a Town Planning Scheme (sanctioned under Section 86 in 1989) would prevail over the Development Plan was rejected. The Court analysed the Act (noting Sections 1–58, including Section 31(6), and Sections 39 and 42) and concluded the Development Plan retains binding effect and must prevail.
  5. Equity and irreparable environmental injury: The purchasers urged equitable relief because of investments and hardship. The Court accepted that equitable considerations might be relevant but held that injury to the environment is irreparable; therefore environmental protection weighs heavily and cannot be lightly subordinated to investment claims.
  6. Reliance on Bangalore Medical Trust: The Court cited paragraph 25 of Bangalore Medical Trust (recognising reservation of open spaces as a legitimate statutory exercise) to underpin the public-interest significance of protecting park/playground reservations.
  7. Equitable remedial framework: Rather than immediately quashing the Notification with no remedy, the Court fashioned an equitable solution: it quashed the Notification but kept the quashing in abeyance for two years, during which the respondents could provide a substitute area (approximately of the same size and suitability, fully developed to the satisfaction of the Planning Authority). If such alternative land is provided within two years, the quashing would not be operative; if not, the Notification would stand quashed. The Court also ordered a two-year status quo: parties must not change the nature of the property or create third-party interests during that period.

Holding and Implications

Holding: The impugned Notification dereserving 1.5 acre from Plot No. 438 is quashed; however, the Court's order of quashing is kept in abeyance for two years on specified equitable conditions.

Concrete implications and operative effects:

  • If within two years the respondents (including the Municipal Corporation) provide an area approximately the same in size, adjacent and suitable for park/garden purposes and develop it fully to the satisfaction of the Planning Authority, the Court's quashing will not be operative (i.e., the Notification will remain effective).
  • If the respondents fail to provide such substitute land within two years, the impugned Notification shall stand quashed and set aside.
  • During the two-year abeyance the parties are ordered to maintain status quo in relation to the plot in question: they shall not change the nature of the property nor create any third-party interest.
  • Direct effect on the parties: the Notification is vulnerable to being set aside unless the respondents secure and develop suitable substitute land within the two-year period; purchasers' investments do not automatically defeat the environmental/public-interest concern.
  • The opinion does not announce that it creates a general new legal principle beyond applying existing precedent (Bangalore Medical Trust) and statutory interpretation; therefore this decision is primarily remedial and fact-specific rather than framed as a novel precedent-setting rule.

Disposition: Rule absolute. Petition allowed.

Show full summary ...

    Rusy Kapadia & Ors. v. State Of Maharashtra & Ors.

    Cases referred :

    (1991) 4 SCC 54 [ 3 ]

    Ashok A. Desai, J. :- This petition by public spirited persons is directed against a Notification dated 12th February 1993 dereserving an area admeasuring 1.50 acre of land from the Plot No. 438 of the area known as Salisbury park within the municipal limits of Pune Corporation. Undisputedly, to promote amenities congenial to the environment is an essence of the Town Planning and an obligation on the authorities charged under the statutory obligation. Public interest is undisputedly involved in such functioning of the authority. The petitioners are the residents of the area described as Salisbury Park . They are intimately connected with the action of dereservation by impugned Notification referred to above. The challenge before us as put forth by them is on numerous grounds amongst other, the mala fide action of the Planning Authority and the State Government, lack of good faith, arbitrariness and action motivated for a collateral purpose. The facts precisely for our decision to appreciate the contentions are thus :

    2. Sometime on 15-8-1966 final Development Plan for Pune city was sanctioned under the erstwhile provisions of the Bombay Town Planning Act, 1954. The Development Plan was carried, on introduction of Maharashtra Regional Town Planning Act, 1966. It is reported to us that on 18-9-1982 the draft Development Plan was published by the Municipal Corporation of Pune purported to be under Section 26(1) of the Act. In all these Development Plans, Plot Nos. 437 and 438 are shown as earmarked for the purposes of the Park and Garden. After going through the rituals as prescribed by law the Development Plan was finalised and sanctioned sometime on 5th January 1987.

    3. Peculiar circumstance of the case is that Respondent No.3 who was the original owner of this plot did not in any manner object to the reservation of her property for the purposes of garden and park. It is reported, some time in December 1986 the Respondent Nos. 4 to 10 have purchased this property, according to the petitioners, with a throw away price. They then initiated the proposal for dereservation. The Government after hearing the Planning Authority and on receiving the report of the Corporation, by impugned Notification dereserved the plot. The submission of the petitioners is that once the land is earmarked for a particular purpose, viz., to promote the environmental exigency the same could not be arbitrarily withdrawn defeating the public purpose. In support the learned counsel for the petitioners placed reliance on the decision reported in (1991) 4 Supreme Court Cases 54 (Bangalore Medical Trust Case). In the meanwhile Mr. Ketkar, learned counsel appearing for the Corporation of Pune made a submission that the proposal for dereservation was mooted by the Corporation at the behest and on the dictate of the State Government. The Supreme Court in the authority cited supra deprecated this practice mainly observing that the statutory authority who is responsible for taking decision could not be directed by any authority from the government to take such a decision suitable to the taste of the Government.

    4. Mr. Zambre appearing for the State, Mr. Sawant, the learned Advocate General, Mr. Anturkar and Mr. Gursahani appearing for the purchasers, mainly contended that the Supreme Court in great detail examined the scheme under the Bangalore Development Authority Act, 1976. The said Act is not exactly parameteria and incorporates the provision under Section 38-A which creates a complete prohibition for the authority from selling or otherwise disposing off any area reserved for the public parks and play grounds. The submission, therefore, is that, since there is no similar provision under the local Act, it is open for the Government to take such a decision in conformity with the law. Their submission, therefore, is that the ratio laid down by the Supreme Court in the case cited supra has no application.

    5. Prima facie, the State Act does not carry such a provision. The question for our consideration is, in the absence of any prohibition against the State from disposing off the land earmarked for the park and garden, whether the Government is at liberty to take such decision to dispose off the land for the purpose other than indicated ?

    6. The submission of the learned counsel before us is that if the Government and Planning Authority has taken a decision strictly in conformity with the provisions of law, in that eventuality the public interest cannot create an inroad to upset the decision. The learned counsel, therefore, mainly invited our attention to Section 37 of the Act and contended that out of the total area which was earmarked for the purposes of garden and park, only 1.5 acre has been dereserved. It is a minor modification. One of the submissions is having regard to the totality of the circumstances and the area it is incidental and since such modification is permissible under Section 37, the dereservation as ordered by the impugned Notification has to be upheld. Mr. Anturkar, the learned Counsel appearing for one of the respondent-purchasers mainly invited our attention to Section 22-A. He has canvassed before us that the Legislature has provided a handmade definition of the term modification of substantial nature. Taking us through the provision, he contended what is dropped is less than what is prescribed under Section 22-A of the Act. We heard Mr. Anturkar at length on this aspect. Without going into the merit of the contention, we observe, undisputedly Section 22-A has been incorporated in the statue by amendment of 1994. Apparently when the impugned Notification was issued these provisions were not available, but then what is explicit to us is that till the incorporation of this provision the Legislature did not permit the Planning Authority to make any change which is of substantial nature. Similar is a position so far as Section 37 is concerned. Section 37 which was initially providing the minor modification has been deleted and the phraseology used after 1994 is only modification. This legislative development is of definite indication. Even otherwise the question before us is whether dereserving certain portion of land earmarked for the purposes of garden could be a modification. According to us by dereserving. the planning authority has revoked certain portion from being used for the garden. It is not the case that this was brought about to change any alignment to better serve the purpose. As such the authorities could not successfully resort to Section 37 for issuing the impugned notification.

    7. The last submission canvassed by Mr. Gursahani and others is that reserving area or the extent of area and nature of amenity is a matter of expertise domain and once the Government after consulting the Town Planning Authority in any manner dereserved certain portion of the land it would be a decision of the expert and it is no more open for the Court to have a scrutiny. According to the learned counsel the planning authority thought it expedient to earmark a particular portion which is sufficient for environmental amenity. As such the question need no reassessment by this Court under Article 226. We do not propose to over state the proposition as canvassed. We do not make an attempt to enter into the expertised domain but what is apprised to us, as we have narrated, is that the planning authority in the Draft Development Plan and even earlier earmarked the entire land of 3.5 acres for the purposes of the garden and park. This was continuously and consistently maintained till 1987. The extent of the land as earmarked was based on an expert opinion. For dereserving it we have not been pointed out any reconsideration of the matter on any special or expertise contingency. What is repeatedly pointed out to us is that the two plots viz. 437 and 438 have an intervening road and due to the severance there could not be better utility. However, the situation which is canvassed was also available and existing at the time when the draft Plan was prepared and which was subsequently approved in 1987. Even otherwise the process of dereservation was not on anybodys report, either of the planning authority or the town planning officer. The process has an initiation on the application made by the subsequent purchaser viz. the Respondent Nos. 4 to 10 which, according to us, is not in conformity with the provisions of law.

    8. One of the submissions canvassed by the learned counsel is that before the development plan came into being, some time in 1943, the land in question was shown in the Town Planning Scheme of Pune. The Town Planning Scheme under Section 86 was sanctioned some time in 1989. According to the learned counsel this is subsequent to the sanction of Development Plan and as such the Town Planning Scheme will prevail over the Development Plan. Initially this submission was canvassed by the learned counsel for the Government, Mr. Zambre. However, they could not pursue it. It was then reiterated by Mr. Anturkar with more force that the Town Planning Scheme will have sway over the Development Plan. We heard and also perused the provisions with the assistance of the learned counsel for the parties. Town Planning scheme is provided and dealt with by Chapter V of the Act. This Chapter has beginning with Section 59 and opening of the Section itself refers that the provisions of this Chapter are subject to the provisions of the Act. The provisions precedent to section 59 are from Section 1 to Section 58 which include Section 31, Sub-section (6) which proclaims that the Draft Plan is final and binding on the Planning Authority. As such the binding force would carry even when they any way deal with the Town Planning Scheme. Besides this Section 39 and Section 42 of the Act unequivocally indicate that the Development Plan has to definitely prevail over anything and everything including the Town Planning Scheme. In view of this the submission is without any merit.

    9. The main submission canvassed unanimously by all the parties is that the purchasers have incurred certain investment and setting aside the dereservation will bring hardship and there will be a substantial loss. The learned counsel, therefore, pressed into service the doctrine of equity. According to them an equitable device could be worked out so that the cause of environment is protected and equally the interest of the purchasers could be safeguarded by putting certain conditions. This aspect, the learned counsel for the parties, argued in great detail. While carrying the equity to its logical end we have to bear in mind that the injury to environment is irreparable and, therefore, cause of environment is to be upheld in the set of circumstances. In these circumstances, therefore, we do not propose to uphold the impugned Notification for dereservation.

    10. The Supreme Court in para 25 in Banglore Medical Trust case (Supra) observed as follows :

    25. Reservation of open spaces for parks and playgrounds is universally recognised as a legitimate exercise of statutory power rationally related to the protection of the residents of the locality from the ill-effects of urbanisation.

    11. The public interest for which the petitioners are surcharged could be served by an alternative device if more or less similar, adjacent and suitable land is provided for the same purpose as envisaged in the Final Development Plan viz, the park and garden. For quite some time we asked the parties whether such a land is available within the vicinity which will serve the purpose. However, instantly they could not suggest or indicate any patch of land available in the vicinity suitable for the purpose. However they particularly agree if such land is available and developed for the purpose of garden and park that will fulfill the purpose of the planning. We feel the device could be open as equitable solution to provide such a land by the respondents including the Municipal Corporation for the said purpose.

    12. Under the set of circumstances as enumerated, the impugned Notification cannot be sustained and the same is liable to be quashed.

    13. As equitable settlement which parties have canvassed, we direct that our decision of quashing the impugned order is kept in abeyance for a period of two years. Within this period if the respondents provide the necessary area, approximately in size, suitable for the purposes of garden and park as envisaged in the Development Plan with further fully developed garden, to the satisfaction of the Planning Authority. Our decision of quashing and setting aside the impugned Notification would not be operative. In case of failure the impugned notification shall stand quashed and set aside. For a period of two years the parties shall maintain status quo in relation to the plot in question viz, they will not change the nature of the property and shall not create any third party interest.

    Rule absolute accordingly.

    Petitione allowed

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    Comments

    Rusy Kapadia & Ors. v. State Of Maharashtra & Ors.
    (Sep 4, 1997)