Holding

The Minister was justified in setting aside the Commissioner’s order; the rejection was untenable as no published draft revised plan existed, and the appeal under section 47 was proper.

Summary

The case concerned a parcel of land in Bandra, Bombay, originally shown as residential in the 1966 development plan, for which a developer sought permission to build a five‑star hotel. The Municipal Commissioner rejected the plan, citing a pending revision of the development plan that would earmark the land as a green belt. The developer appealed to the State Government under section 47 of the Maharashtra Regional and Town Planning Act, 1966, and the Minister set aside the Commissioner’s order, imposing conditions to preserve a portion of the land as recreation space. The appellants, ecological groups and rate‑payers, challenged the Minister’s order, the Municipal Corporation’s resolutions extending the park reservation, and the exemption granted under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976. The Supreme Court held that the Commissioner’s rejection was unsupported because no draft revised plan had been published, making the appeal under section 47 maintainable, and that the conditions imposed served the public interest. Consequently, the appeal and the two special leave petitions were dismissed.

Issues considered

Whether the Municipal Commissioner was justified in rejecting the development plan on the ground of a contemplated revision of the development plan.
Whether an appeal under section 47 of the Maharashtra Regional and Town Planning Act is maintainable when the planning authority has decided to revise the development plan.
Validity of the Municipal Corporation resolutions extending and modifying the park reservation.
Validity of the exemption granted under section 20 of the Urban Land (Ceiling and Regulation) Act, 1976.
Whether the conditions imposed by the Minister satisfy public interest and are consistent with the draft revised development plan.

Legislation cited

Maharashtra Regional and Town Planning Act, 1966s. 31, s. 40, s. 43, s. 45, s. 46, s. 47
Urban Land (Ceiling and Regulation) Act, 1976s. 20

Subjects

development plantown planninggreen beltpark reservationsection 47 appealpublic interesturban land ceilingmunicipal corporationenvironmental protection

Judgment

S.N. RAO & ORS. ETC.
~ v.
A

J •
STATE OF MAHARASHTRA

FEBRUARY 9, 1988

[M.P. THAKKAR AND MURARI MOHON DUTI, JJ.] B

1 Maharashtra Regional and Town Planning Act, 1966: Sections
., 31, 40, 43, 45, 46, and 47-Development of land for construction of five
.... star hotel-Master plan showing the land as residential zone and conti·
guous zone as green belt Municipal Commissioner rejecting the plan-
Appeal to Government-Minister setting aside the Commissioner's
order-Validity of the appellate order.
c
t A piece of land had been purchased for the construction of a
five-star hotel. In the sanctioned development plan the said land was
shown in the residential zone and a contiguous parcel of land was shown
as green belt. When the plan was submitted to the Municipal Corpora- D
r '! tion for the construction of a five-star hotel, the Commissioner rejected
the plan on the ground that it was proposed to earmark the said land as
a recreational ground with suitable internal network of roads during
the revision of the development plan which was in the offing. Aggrieved
by the rejection, an appeal was preferred to the State Government
-( under sec. 47 of the Maharashtra Regional and Town Planning Act, E
1966 •
..,.
The appeal was heard by the Minister of State for Urban Develop-
ment. The appellants herein, members of various ecological groups
• and rate payers of the Municipal Corporation, appeared and opposed
saying that the land should be kept reserved for a green belt or recrea- F
tional ground in the interest of the general public. However, the Minis-
~. ter set aside the oider of the Municipal Commissioner and directed the
sanctioning of the plan on certain conditions. The Municipal Corpora-
lion accepted the appellate order and did not challenge it. But the
appellants filed a Writ Petition challenging the legality of the order. The
.writ petition was dismissed by the High Court. The present appeal by G
special leave is against this dismissal.

+ Meanwhile the Municipal Corporation passed a resolution
extending the park reservation by including the remaining area of the
land in question. By another resolution the first resolution was modified
limiting the reservation for the park to 7 ,OOO sq., yards out of the dis· H
919
920 SUPREME COURT REPORTS [1988] 2 S.C.R.

A puled land. Thereafter the State Government exempted the disputed
land under section 20 of the Urban Land (Ceiling and Regulation) Act,
1976. The resolutions and the order were challenged in the High Court. ... .,.. '

The petitions were dismissed by a Single Judge of the High Court and
later by the Division Bench on appeal. The Review Petitions also met
the same fate. The petitioners have not challenged the judgment of the
B High Court passed on the review applications, but filed before this
Court the two special leave petitions challenging the legality and vali-
dity of the two resolutions and the order of Government giving exemp- t '
tion under section 20 of the Urban Land (Ceiling and Regulation) Act.

Dismissing the appeal, and the special leave petitions, this Court,
•
...
c HELD: t. l In allowing the appeal and directing sanction of the
development plan, the Minister observed that in view of the clear provi-
sions or sections 46 and 31(6) of the Act and having regard to the
position that in the sanctioned plan or 1966, the said land was included
in the residential zone and no proposal to exclude it therefrom in the
D draft revised development plan had been published, the Municipal
Commissioner was not justified in rejecting the application for approval
y -
of the plan on the ground that the Bombay Municipal Corporation had
decided to revise the 1966 Development Plan. The Minister was of the
view that the Planning Authority could only take into consideration any
draft or final plan or proposal which had been published by means of
E notice, or sanctioned under the Act .. When Municipal Commissioner Y·
rejected the plan, there was no draft revised development plan in exis-
tence. It was in contemplation. If there had been such a plan, the
Municipal Commissioner would be entitled to rely upon the same in
rejecting the plan. The Commissioner was not justified in merely relying
upon- a proposal for the preparation of a draft revised plan. An order
..
F rejecting a development plan submitted by the owner of the land should
be supported by some concrete material. In the absence of any such
material, it will be improper to reject the plan on the ground that there
is a proposal for revision of the draft plan or that such a revision is
under contemplation. Therefore, the ground for rejecting the plan was
not tenable and_ the appellate authority was justified in allowing the
G appeal. [923H; 924A-B, H; 925A-CI --

1.2 The Municipal Corporation has, subsequent to the judgment
of the High Court, prepared and published a draft revised development +
plan. The plan is not inconsistent with the draft revised development
plan. There is no material on record to show that the Municipal Corpo-
U ration which is the Planning Authority, had prepared the draft revised
S.N. RAO v. STATE OF MAHARASHTRA 921

plan in accordance with the direction of the Minister. The Minister has
A
acted in public interest by imposing the conditions. The conditions
would show that considerable area out of the disputed land has been
reserved for recreational ground or green belt. The plan, as sanctioned
with the conditions imposed, has been shown in the draft revised plan.
It was open to the Municipal Corporation to accept the verdict of the
appellate authority and it has done so by not challenging it in the High B
Court or before this Court. [926E·Hl
. t

- 2. The contention of the petitioners against the validity of the
resolution is. no longer tenable, regard being had to the fact that the
draft revised development plan has since been published and the plan
submitted and conditioned by the Minister is not inconsistent with the
~.draft revised plan. The petitioners have also not seriously pressed the
c
~ validity of the said resolution. [928C·D I

3. This Court is not called upon to decide the legality or otherwise
of the order granting exemption. These have been considered by the
High Court in its judgment disposing of the review applications. The D
• '! petitioners have not challenged the judgment on review applications.
The petitioners are only interested in seeing that sufficient area Is kept
reserved for a park or recreation ground for the benefit of the members
of the public, and are not concerned with the question as to the legality
or otherwise of the exemption granted by the Government. The ques·
r 'i tion whether or not sufficient quantity of land has been kept reserved E
for park and recreation ground has been adequately considered and
- taken into account by the High Court. [928G-H; 929A]
<

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2537
of 1985 etc.
F
, ·· From the Judgment and Order dated 27.4.1984 of the Bombay
-:.\.__High Court in O.S.W.P. No. 704 of 1984.

G.G. Kalsekar, K.M.M. Khan, N. Nettar and S.N. Bhat for the
Appellants.
G
S.K. Dholakia, Ashok H. Desai, A.M. Khanwilkar, A.S.
Bhasme, D.N. Mishra, S. Sukumaran, G.E. Vahanvati, V.B. Agar-
wala, B.. B. Agarwala, R.B. Hathi Khanawala for the Respondents.

Vinod A. Bobde, Mrs. J. Wad and Mrs. Aruna Mathur for the
Intervener. H
922 SUPREME COURT REPORTS [1988) 2 S.C.R.

The Judgment of the Court was delivered by
A
DUTT, J. The subject-matter of this appeal by special leave is •
the permission for development of the land granted in favour of
respondent No. 5 who proposed to construct a five-star hotel on a tract
of land measuring44,820.49 square yards at Bandra, Bombay, bearing
B R.S. Nos. 416 (Part) and 417. The land in question had been purchased
by the respondent No. 5, Enjay Estates Pvt. Ltd., from its erstwhile
owner, Byramji Jeejeebhoy Pvt. Ltd. In the 1966 sanctioned Develop- t -
ment Plan of Greater Bombay, the said land was shown in the residen-
tial zone and a contiguous parcel of land measuring 18,000 sq. yds. was
shown as a green belt.
c With a view to developing the disputed land, the respondent.i
No. 5 submitted a plan to the Municipal Corporation of Greater
Bombay for the construction of a five star hotel. The Commissioner of
the Municipal Corporation, however, rejected the plan on the sole
ground that it was proposed to earmark the said land under reference
D as a recreational ground with suitable internal network of roads during
the revision of the development plan which was in the offing. Being r •
aggrieved by the said rejection of the plan, the respondent No. 5
preferred an appeal to the Government of Maharashtra under section
47 of the Maharashtra Regional and Town Planning Act, 1966,
hereinafter referred to as 'the Act'.
E
The appellants, who are rate-payers of the Municipal Corpora-
tion of Greater Bombay and claim to be members of various ecological
action groups, appeared in the appeal and opposed the same contend-
ing, inter alia, that the whole of the said land should be kept reserved "'
for agreen belt or recreational ground in the interest of the general
F · public.

The appeal was heard by the Minister of State for Urban
Development, the respondent No. 2 herein. The respondent No. 2 set
.X
aside the order of the Commissioner of the Municipal Corporation
rejecting the plan submitted by the respondent No. 5 after hearing the
q petitioners as also the Municipal Commissioner and directed sanction-
ing of the plan on certain conditions which will be referred to later in
this judgment. -r
The Municipal Corporation accepted the appellate order and did
not challenge the order of the respondent No. 2. But the appellants
~ fi~ec;I a writ petition challenging the legality of the order of the respon-
S.N. RAO v. STATE OF MAHARASHTRA [DUTT, J.I 923

-"< dent No. 2 gi:anting sanction of the plan submitted by the respondent
A
No. 5for the construction of a hotel on the said land. The writ petition
... was, however, dismissed by the Division Bench of the High Court by
the judgment under appeal.

At this stage, we may refer to some of the provisions of the Act.
It is an Act to make provision for planning the development and use of B

r
If
land in Regions established for that purpose and for the constitution of
Regional Planning Boards therefor; to make better provisions for the
preparation of Development Plans with a view to ensuring that town
planning schemes are made in a proper manner and their execution is
made effective; to provide for the creation of new towns by means of
Development Authorities; to make provisions for the compulsory

r acquisition of land required for public purposes in respect of the plans;
and for purposes connected with the matters aforesaid. Section 2(9)
defines "Development Plan" to.mean a plan for the developmentor
re-development of the area within the jurisdiction of a Planning
c

Authority and includes revision of a development plan and proposals
of a Special Planning Authority for devejopment ofland within its D
l jurisdiction. Under section 2( 19), "Planning Authority" means a local
authority; and includes a Special Planning Authority constituted or
appointed under section 40. Chapter III of the Act contains provisions
for the Development plan. Section 23 provides for the declaration of
_,
.
intention by the Planning Authority to prepare a Development plan .
Section 26 provides for the preparation and the publication of notice of E
draft Development plan. Under section 30, the Planning Authority has
" to submit the draft Development Plan to the State Government for
sanction. Section 31 provides for the sanction to the draft Develop-
• ment plan by the State Government. Section 43 provides, inter alia,
that after the date on which the declaration of intention to prepare a
Development plan for any area is published in the Official Gazette, F
no person shall carry ouf any development of land without the permis-
'~- .sion in writing of the Planning Authority. Section 45 deals with grant
or refusal of sanction for development by the Planning Authority.
Section 45 enjoins that the Planning Authority in considering an appli-
cation for permission shall have due regard to the provisions of any
' draft or final plan or proposals published by means of notice submitted G
or sanctioned under the Act. Section 47 provides for an appeal to the
~ State Government or to an officer appointed by the State Government
by any applicant aggrieved by an order granting permission on condi-
tions or refusing permission under section 45.

In allowing the appeal of the respondent No. 5 and directing H
924 SUPREME COURT REPORTS I1988] 2 S.C.R.
sanction-0f the development plan, the respondent No. 2 observed that )'-
A in view of the clear provisions of sections 46 and 31(6) of the Act and
having regard to the position that in the sanctioned plan of 1966, the
said land was included in the residential zone and no proposal to
exclude it therefrom in the draft revised development plan had been
published, the Municipal Commissioner was not justified in rejecting the
B application for approval of the plan submitted by the respondent No. 5
on the ground that the Bombay Municipal Corporation had decided to
revise the 1966 Development Plan. We have already referred to
section 46 of the Act which provides that the Planning Authority in
considering the·apylication for permission shall have due regard to the
provisions of any draft or final plan or proposals published by means of
notice submitted or sanctioned under the Act. It seems that the i
c respondent No. 2 was of the view that the Planning Authority could · -~·
only take into its consideration any draft or final plan or proposal r
which had been published by means of notice or sanctioned under the
Act as provided in section 46. There is, in our opinion, some force in
the contention made by Mr. Kalsekar, learned Counsel appearing on
D behalf of the appellants, that the respondent No. 2 has misunderstood
the provisions of section 46. It is submitted by the learned Counsel that
the Municipal Corporation was entitled to take into consideration
other relevant facts including the contemplated revision of the plan,
apart from those mentioned in section 46. In support of his contention,
the learned Counsel has placed reliance on an unreported decision of a
E learned Single Judge of the Bombay High Court in Life Insurance
Corporation of India and Another v. Municipal Corporation of Greater
Bombay and Others, Writ Petition No. 2944 of 1932 disposed of on
6.3.1984. In that case, a development application was rejected by the
Municipal Corporation on the ground that the property was proposed
to be reserved for public purposes or for recreational ground in the
F draft revised development plan, and the High Court repelled the
challenge to the decision taking the view that even the proposed revi- . \,/
sion could be taken into account as one of the relevant factors. --"-

There can be no doubt that if there be any other material or
relevant fact, section 46 does not stand in the way of such material or
G fact being considered by the Municipal Corporation for the grant or
refusal to grant sanction of any development plan. In the unreported
decision of the High Court, the relevant fact that was taken into con-
sideration was the draft revised development plan, even though the
plan was not published. In the instant case, however, at the time the
Municipal Commissioner rejected the plan submitted by the respon-
H dent No. 5, there was no draft revised development plan in existence.
S.N. RAO v. STATE OF MAHARASHTRA [DUTT, J.l 925

It was in contemplation. If there had been such a plan, the Municipal A
Commissioner would be entitled to rely upon the same in rejecting the
plan submitted by the respondent No. 5. But, as there was no sucll
draft revised plan,as has been stated before this Court even by the
Counsel for the Municipal Corporation, the Municipal Commissioner
was not justified in merely relying upon a proposal for the preparation
of a draft revised plan. An order rejecting a development plan submit- B
ted by the owner of the land should be supported by some concrete
material. In the absence of any such material, it will be improper to
reject the plan on the ground that there is a proposal for revision of the
draft plan or that such a revision is under contemplation. We are,
therefore, of the view that the ground for rejecting the plan submitted
by the respondent No. 5 was not tenable and the appellate authority C
was justified in allowing the appeal.

It is urged by Mr. Kalsekar that in any event no appeal Jay under
section 47 when the Municipal Corporation had decided to revise the
development plan. We are afraid, we are unable to accept the conten-
tion. The same contention was advanced before the respondent No. 2 D
. i and it was rightly rejected. Section 47 of the Act does not warrant the
contention urged by the learned Counsel. In our opinion, to hold that
after the Municipal Corporation had decided to revise the develop-
ment plan, no appeal would be competent to the State Government
under section 47, would amount to legislating and rewriting the provi-
. i sion. Such a contention is without any substance and is rejected. E

The respondent No. 2 directed sanction of the plan out of
44,820.49 sq. yds. belonging to the respondent No. 5, on the following
... conditions:

(i) 15% Recreation space to be left in Block 'A' shall be kept F
on the southern side of the plot abutting the green space left
from Block 'B' after merging the Road area in the Green
space.

(ii) The Development shall be allowed IOD and C.C. shall be
issued as per the Development Control Rules. G

't (iii) The F.S.I. of the road area would be admissible on plot 'A'
as per Development Control Rule 10(2).

(iv) The Municipal Commissioner, Municipal Corporation of
Greater Bombay, Bombay, shall take over the possession of H
926 SUPREME COURT REPORTS (1988] 2 S.C.R.

the land proposed to be kept as Green on southern•side, )'.
A
abutting the sea after getting the plots properly demarcated.

The Municipal Commissioner, M.C., G.E., Bombay, m:l.)'
consider the proposal of allowing the development and mainte-
nance of the park and garden space by the applicant party at their
B own cost after obtaining the possession of the lands now prop-·
osed to be kept green.

The permission for development of plots as per plans sub-
mitted by appellants be granted by the M.C.B. M.C. subject to
the conditions mentioned above.
,
c We are told that after the above conditions are worked out, the
area that will be available to the respondent No. 5 for the construction
of the hotel is only 19,951.10 sq. yds. It is, therefore, apparent that in
'1
granting sanction to the plan, the respondent No. 2 was quite alive to
public interest.
D
r
At this stage, we may notice a very significant development that
has taken place during the pendency of this appeal, namely, that the
Municipal Corporation has, subsequent to the judgment of the High

E
Court, prepared and published on April 30, 1984 a draft revised
development plan. The plan of the respondent No. 5 is not inconsistent
with the draft revised development plan. This fact demolishes all the
,.
contentions of the appellants against the plan submitted by the respon-
~
dent No. 5. Realising this difficulty, Mr. Kalsekar assailed the draft
revised plan on the ground that it was prepared in accordance with the
direction of the respondent No. 2. This contention of the learned ...
Counsel has no foundation whatsoever. There is no material on record
F to show that the Municipal Corporation which is the Planning Autho-
rity, had prepared the draft revised plan in accordance with the direc-
tion of the respondent No. 2. The respondent No. 2, in our opinion,
_X
has acted in public interest by imposing the conditions mentioned
above. The conditions would show that considerable area out of the
disputed land has been reserved for recreational ground or green belt.
G The plan, as sanctioned by the respondent No. 2 with the conditions '"
imposed, has been shown in the draft revised plan. It was open to the
Municipal Corporation to accept the verdict of the appellate authority y
and it has done so by not challenging it in the High Court or before this
Court. In the circumstances, there is no merit in this appeal challeng-
ing the order of the respondent No. 2 sanctioning the development
H plan of the respondent No. 5.
S.N. RAO v. STATE OF MAHARASHTRA [DUTT, J.] 927

->,' Now we may take up the two Special Leave Petitions being A
Special Leave Petition (Civil) No. 17376 of 1985 and Special Leave
~ Petition (Civil) No. 17377 of 1985. A few facts may be stated.

The Municipal Corporation passed a resolution on 3.12.1973,
inter alia, extending the park reservation by including the_ remaining
area of the land comprised in R.S. No. 416 and R.S. No. 417 (part) at B
Bandra. By another resolution dated 14.3.1974, the first resolution
· was modified limiting the reservation for the park to 7,000 sq. yds. out
, of the disputed land. The petitioners, who are the appellants in the
above appeal, filed two Misc. Petitions, namely, Misc. Petition No.
463 of 1974 challenging the legality and validity of the resolution dated
14.3.1974 and Misc. Petition No. 1406 of 1978 challenging the order of C
'!---the Government of Maharashtra dated 25.7.1978 exempting the dis-
1 puted land under section 20 of the Urban Land (Ceiling and Regula-
tion) Act, 1976, hereinafter referred to as the 'Urban Land Ceiling
Act'. Both the Misc. Petitions were dismissed by a learned Single
Judge of the Bombay High Court. Two appeals were preferred by the
petitioners against the judgment of the learned Single Judge to the D
Division Bench. On July 30, 1984 when the appeals were taken up for
hearing, a prayer was made by the learned Counsel for the petitioners
for an adjournment for two weeks on the ground that Shri Bhore, the
Advocate-on-Record, had met with an accident and the learned
Counsel was unable to proceed with the appeals without the
Advocate-on-Record. The learned Judges of the Division Bench did E
not accede to the prayer of the learned Counsel for an adjournment for
two weeks on the ground that the appeals were old appeals of 1979,
and that the learned Counsel who prayed for adjournment himself
appeared throughout the proceedings as an Advocate. The learned
Judges, however, adjourned the appeals to the next day, that is, July
31, 1984 to enable the learned Counsel to be ready with the matter. F

~- On the next day, the learned Counsel did not appear and the
learned Judges of the Division Bench disposed of the appeals ex parte
by a judgment dealing with the contentions of the petitioners. The
result was that both the appeals were dismissed. We do not think that
' we are called upon to consider whether the learned Judges should have G
granted an adjournment for two weeks as was prayed for by the
'f learned Counsel. Suffice it to say that if an adjournment had been
granted, multiplicity of proceedings could have been avoided.

Be that as it may, the petitioners filed two applications for re-
view. Both the said applications for review were dismissed by the H
928 SUPREME COURT REPORTS 11988) 2 S.C.R.

A Division Bench after considering all the points including certain addi- 'f··
tional grounds to the effect that certain contentions had not been dealt
with earlier by the judgment dated October 9/10, 1985. The petitioners ~
have not challenged the judgment of the High Court passed on the
review applications. They have, however, filed before this Court the
above two Special Leave Petitions.
B
Special Leave Petition (Civil) No. 17376 of 1985 arises out of
Misc. Petition No. 463 of 1974 whereby the petitioners challenged the
legality and validity of the said resolution dated 14.3.1974. We are of
the view that the contention of the petitioners against the validity of
the resolution is no longer tenable, regard being had to the fact that
C the draft revised development plan has since been published and the
plan submitted by the respondent No. 5 and conditioned by the re- • -V
spondent No. 2 is not inconsistent with the draft revised plan. In that ~
view of the matter, Mr. Kalsekar also has not seriously pressed the
validity of the said resolution. Accordingly, Special Leave Petition
(Civil) No. 17376 of 1985 is liable to be dismissed.
D
So far as Special Leave Petition (Civil) No.17377 of 1985 is con-
cerned, it has been strenuously urged by Mr. Kalsekar that in granting
exemption to the respondent No. 5, the authority concerned has vio-
lated the relevant guidelines and also the provision of section 20 of the
Urban Land Ceiling Act. Learned Counsel points out that one of the
E grounds for exemption is that 75,000 sq. yds. of vacant land is available
for the development of gardens. As a matter of fact, Counsel submits,
it is not a vacant land, but contains 350 houses. It is submitted that
granting exemption on the ground of availability of 75,000 sq. yds. of
open site for the purpose of gardens is a fraud on the Urban Land ...
Ceiling Act. It is, accordingly, urged by the learned Counsel that the
F order granting exemption should be quashed.

The above grounds of challenge to the order of exemption _ ~
granted to the respondent No. 5 have all been considered by the High
Court in its judgment disposing of the review applications. The
petitioners have not challenged the judgment on review applications.
G The petitioners are only interested in seeing that sufficient area is kept
reserved for a park or recreation ground for the benefit of the mem-
bers of the public. They are not, in our opinion, concerned with the y
question as to the legality or otherwise of the exemption granted by
the Government to the respondent No. 5 under the Urban Land Ceil-
ing Act. A copy of the draft revised development plan has been pro-
H duced before us by Mr. Desai, learned Counsel appearing on behalf of
S.N. RAO v. STAIB OF MAHARASHTRA [DlJIT, J.] 929

the respondent No. 5. We are satisfied that the question whether or A
not sufficient quantity of lan.d has been kept reserved fer park and
recreation ground has been adequately considered and taken into
account by the High Court. In the circumstances, we do not think 1hat
we are called upon to decide the legality or otherwise of the order
granting exemption to the respondent No. 5 under the Urban Land
B
Ceiling Act. There is, therefore no substance also in Special Leave
Petition (Civil) No. 17377of1985.

In the result, the appeal and both the special leave petitions are
dismissed. There will, however, be no order as to costs.

G.N. Appeal and Petitions dismissed. C

,