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Judgment
Rajesh S. Patil, J
This Writ Petition is filed under Article 226 of the Constitution of India by the Petitioners praying therein that the State of Maharashtra, to act upon its decision dated 16th January, 2018 and to pass an order sanctioning the deletion of reservation shown on land bearing survey No. 87 situated at village Dighi, Tehsil- Haveli, District-Pune, and to further quash and set aside the letter dated 23 February 2018 issued by the State Government to Pimpri Chinchwad Municipal Corporation.
THE PARTIES
The Respondent No.1 is the Urban Development Department of the State of Maharashtra, being the Sanctioning Authority. The Respondent No.2 is the Pimpri Chinchwad Municipal Corporation being the Planning Authority and the Respondent No.3 is the Bharat Sanchar Nigam Limited being the Appropriate Authority.
FACTUAL MATRIX
The Petitioners claim to be owners of land bearing Survey No.87 Hissa Nos. 6 (part), 7 (part), 11(part), 12 (part) and 21 (part) situated at village Dighi, Tehsil-Haveli, District-Pune, Maharashtra (for short ‘the subject land’’).
The subject land was included in the municipal area of the Respondent No.2-Planning Authority. On 5 October 2000 the Draft Development Plan of the said municipal area was published, in which the subject land was proposed for reservation of Telecom Centre. The erstwhile owner of the subject land raised objections pursuant to which the Planning Authority conducted hearing on those objections. As per the recommendation of the Planning Authority, General Body of the Planning Authority passed a resolution No. 4830 on 10 February 2003 to delete the reservation on the said property and re-publish the draft development plan and send it to the Sanctioning Authority/State Government.
On the request of the Petitioners, Zone area certificate was issued on 30 June 2010 by the Planning Authority wherein it mentioned that it is proposed to delete the Reservation Site for telecom center and make the said area as residential zone for the subject land.
So also the Planning Authority issued Zone Certificate dated 15 March 2012, wherein also it was mentioned that it is proposed to delete the Reservation Site for telecom center and make the said area as residential zone of the subject land.
The Petitioners submitted their application dated 31 October, 2015 for grant of TDR in respect of the subject land under Reservation on the said property. TDR Committee of the Planning Authority in its meeting dated 21 September 2016 considered the said issue and decided that case be kept pending as there is no need of telecom center. In subsequent, meeting of TDR Committee of the Planning Authority on 12 January 2017 and 13 January 2017, the Application of the Petitioners was considered and decision was taken to inquire with Telecom Department, whether they require the reserved land.
On 5 October 2017 the Petitioners issued Purchase Notice under Section 49 of the Maharashtra Regional and Town Planning Act, 1966 (for short ‘MRTP Act’) to the State Government to purchase the said land or to give direction for deletion of the reservation under Section 50 of the MRTP Act. The said notice issued under Section 49 of the MRTP Act was accompanied by the Application of the Petitioners to Planning Authority and the same was received by the State Government on 17 October 2017.
The Appropriate Authority/Respondent No.3 issued letter dated 27 November 2017 communicating to the Planning Authority’s Town Planning Department that at present, there is no need for said reserved land at village Dighi Survey No.87 (Plot No. 2/133), which was allotted to Respondent No.3 - Telecom Center (BSNL). Therefore, it requested to cancel the reservation for the said land at Dighi village.
Shortly, thereafter the Petitioner addressed a letter dated 27 December 2017 to the State Government to delete the reservation under Section 50 of the MRTP Act and include the subject land in the residential zone.
In the light of the said letter the State Government issued notice dated 28 December 2017 to the Petitioners as well as the Respondents calling upon them to attend personal hearing on 5 January 2018. After hearing the parties, the State Government vide its order dated 16 January 2018 communicated to Planning Authority that since the Appropriate Authority has communicated that there is no need of the subject land under reservation and had requested for deletion of the reservation, it would be appropriate to move the proposal for deletion of reservation under Section 50 of the MRTP Act.
In pursuant to the letter written by the Petitioners dated 25 January 2018, Respondent No.3 also wrote letter dated 5 February 2018 to Respondent No.1-State Government thereby confirming that there is no need for the said reserved land of the Petitioners and also requested to cancel the reservation of the subject land.
Thereafter, vide letter dated 5 February 2018 addressed to the Respondent No.2-Planning Authority, the Petitioner requested the Respondent No.2 to comply the decision of the State Government and to send the proposal to the State Government for deletion of the Reservation of the subject land.
Immediately, thereafter the State Government by its letter dated 23 February 2018 communicated in pursuance of the letter dated 4 January 2018 submitted by Respondent No.2-Planning Authority, the proposal under Section 37 of the MRTP Act be submitted after complying legal formalities.
Being aggrieved by the communication dated 23 February 2018 the Petitioners have filed the Writ Petition, seeking quashing and setting aside the letter dated 23 February, 2018 and further direction to the State of Maharashtra, to act upon its decision dated 16 January, 2018.
The Respondent filed separate affidavit in reply and all three Respondents opposed for granting of any relief in the Writ Petition.
SUBMISSION OF PARTIES
Mr. Vishal Kanade made submissions on behalf of the Petitioners. Mr. Kanade submitted that the Appropriate Authority/Respondent No.3-BSNL, on whose behalf the land was reserved for the public purpose, has specifically requested the Respondent No.1-State Government as well as Planning Authority/Respondent No.2 to delete the reservation land as there is no need for the said reserved land. Therefore, once the Appropriate Authority had requested the Planning Authority and the State Government to delete the reservation, then the Planning Authority and the State Government had no option but should have passed an order thereby sanctioning the deletion of the said reservation under Section 50 of the MRTP Act, 1966.
Mr. Kanade further submitted that the State Government/Respondent No.1 after granting hearing to the Petitioners as well as the Corporation on 5 January 2018, issued letter dated 16 January 2018 thereby informing the Corporation that there is no need of the subject land for the Appropriate Authority and therefore, as requested by the Petitioners, the proposal for deletion of reservation be submitted under Section 50 of the MRTP Act. Mr. Kanade further submitted that once the letter dated 16 January 2018 was issued the Corporation should have acted on that basis however, to surprise of the Petitioners immediately thereafter on 26 February 2018, the State Government /Respondent No.1 directed the Corporation to submit proposal under Section 37 of the MRTP Act for modification of the reservation, which according to Mr. Kanade was totally illegal and arbitrary. Mr.Kanade submitted impugned letter dated 23 February 2018 was issued without giving an opportunity to the Petitioners of hearing them and there being no change in the circumstances from 16 January 2018. Mr. Kanade submitted that the land of the Petitioner cannot be kept under reservation perpetuity and the same is entitled for being released for the reservation.
Mr. Kanade submitted that this Hon’ble Court granted stay in the Writ Petition. Mr. Kanade submitted that the Petitioner should be allowed and the impugned communication dated 23 February 2018 should be quashed and set aside and the decision taken vide communication dated 16 January 2018 should be acted upon and the subject land should be deserved.
On the other hand Mr. Rohit P. Sakhadeo made a submission on behalf of the PCMC. Mr. Sakhadeo submitted that the general body resolution dated 26 February 2020 passed by the Corporation has allowed Commissioner of the Corporation to take steps under Section 37 for acquiring the subject land. Mr. Sakhadeo submitted that the Corporation could have taken further steps pursuant to the general body resolution however, due to the stay granted by this Hon’ble Court in the present proceeding vide order dated 9 March 2020, the Corporation was not able to take any further steps. Mr. Sakhadeo submitted that the present Petition is devoid of merits and the present Petition should be dismissed.
Ms. Thakur AGP for the State submitted that pursuant to the Corporation letter dated 4 January 2018, the State has acted under the provision of Section 37 of the MRTP Act, to reserve the land for parking and allied amenities. She further stated that the state supports the submission of the Corporation. The Corporation has already acted on the basis of the action taken by the Corporation and only due to a stay granted by this Court, further steps have not been taken by the Corporation. She further submitted that there is no merits in the Petition and the same should be dismissed.
Ms. Martina Sapkal made a submission on behalf of the Responent No.3-BSNL. Ms. Sapkal stated that BSNL is not in need of the subject land which was earlier reserved for them, Hence BSNL informed the town planning department by its letter dated 27 November 2017 requesting deletion of the reservation on the subject land.
ANALYSIS AND CONCLUSION
We have heard the counsel for all the sides and have gone through the documents on record.
The Petitioners land was subject to reservation for Telecom Centre pursuant to the Draft Development Plan published on 5 October 2000. As objections and suggestions were invited to the development plan by notice dated 21 October 2000, the erstwhile owners of the subject land raised their objection on the said reservation. The planning Committee thereafter conducted hearing on those objections, and recommendations were made to the Corporation. The general body of the Corporation thereafter pursuant to the recommendation of the Planning Committee passed a Resolution No. 4830 on 10 February 2003, to delete the reservation and republish draft development plan and send it to the Sanctioning Authority/ the State. The Sanctioning Authority thereafter excluded the subject land alongwith some other lands from reservation while sanctioning the Development Plan on 30 May 2008.
The Urban Development Department of the State Government republished the Development Plan for the Excluded Part of the Corporation vide notice dated 18 August 2009 read with corrigendum and addendum dated 27 October 2009. Thereafter the Corporation also issued zone certificate dated 30 June 2010 and 15 March 2012 wherein it has been mentioned that it is proposed deletion of the reservation site for telecom center and make the subject land as residential zone. The Petitioner thereafter had made an application for grant of TDR. The Corporation’s TDR Committee in its meeting dated 21 September 2016 had taken a decision that, case is kept pending as there is no imminent need of telecom center. The TDR Committee of the Corporation thereafter again in its meeting dated 12 January 2017 and 15 January 2017 considered the issue of the subject matter for granting of TDR, it is stated that the enquiry should be made with the telecom department whether they required the reserved land. As there was no further response, the Petitioner on 5 October 2017 issued notice under Section 49 of the MRTP to the State Government to purchase the subject land or else direct the deletion of the reservation under Section 50 of the MRTP Act. Also with the notice the Petitioner had accompanied the application to the Planning Authority. In the meantime, the Appropriate Authority/BSNL vide its letter dated 27 November 2017 communicated to the Corporation’s Town Planning Department that at present there is no need for the subject land which was earlier reserved for telecom center. It requested to cancel the reservation for subject land. The Petitioner thereafter by their letter dated 27 December 2017, requested the State Government for deletion of reservation under Section 50 of the MRTP Act and include the said property as residential zone. Pursuant to the notice issued under Section 49 of the MRTP Act by the Petitioners on 5 October 2017, the State Government called upon the Petitioners and the Corporation for hearing. Hearing was conducted on 5 January 2018 by the State Government and pursuant to hearing, an order was passed dated 16 January 2018 communicating to the Corporation that since the Appropriate Authority has communicated that there is no need for the said property under reservation and had requested for deletion of the reservation, it would be appropriate to impliment the proposal for deletion of reservation under Section 50 of the MRTP Act. The said communication was also copied to the Petitioners. Thereafter the Appropriate Authority/BSNL by its letter dated 5 February 2018 addressed to the State Government confirmed that there is no need for the said reservation land of the Petitioner and also requested to cancel the reservation of the subject land .
However, the State Government no sooner thereafter by its communication dated 23 February 2018 communicated to the Petitioners that in pursuance to the letter dated 4 January 2018 which was submitted by the Corporation at the time of hearing on 5 January 2018, proposal under Section 37 of the MRTP Act be submitted after complying legal formalities. The said communication dated 23 February, 2018 did not mention about the earlier communication dated 16 January 2018.
We are surprised with the stand taken up by the State Government and the Corporation. By communication dated 16 January 2018 the State had decided to take steps for cancellation of reservation of the subject land. The process itself had taken around 18 years; from the time of proposed reservation in the year 2000 to the finalisation of Development Plan. The order was communicated by letter dated 16 January 2018 was pursuant to the hearing conducted on 5 January 2018. Thereafter without conducting any fresh hearing on 23 February 2018 a fresh order was communicated, the State Government informing the Corporation about steps to be taken under Section 37 of the MRTP.
In the first place, no fresh hearing was granted to the Petitioners and the communication dated 23 February 2018 states that pursuant to the letter of the Corporation dated 4 January 2018 submitted at the time of hearing on 5 January 2018, the proposal under Section 37 of the MRTP was directed to the Corporation to be submitted. In our view, the letter dated 4 January 2018 according to the State Government was submitted at the time of hearing on 5 January 2018. Pursuant to the hearing dated 5 January 2018, decision was taken which was communicated to the Petitioners on 16 January 2018. In such an event without giving any kind of hearing based on the communication dated 4 January 2018 and without giving any why a subsequent decision is taken on 23 February 2018, is a question which is not answered at all.
In our view, therefore, the communication dated 23 February 2018, is required to be quashed and set aside and the subject land should be deleted from the reservation in pursuant to the decision taken and communicated by the State/Respondent No.1, on 16 January 2018 (enclosed as Exhibit - ‘O’ to the Petition). Respondent Nos. 1 and 2 should accordingly take steps and expedite the process of deletion of reservation of the subject land, which may be completed in eight weeks from the date of this judgment.
The Writ Petition accordingly succeeds and stands partly allowed. No costs.