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Savalram Dinaji Waghire Vs. State of Maharashtra and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 473 of 1981
Judge
Reported in1982(1)BomCR446; (1982)84BOMLR116; 1982MhLJ299
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 2; Maharashtra Regional and Town Planning Act, 1966 - Sections 31 and 46
AppellantSavalram Dinaji Waghire
RespondentState of Maharashtra and anr.
Appellant AdvocateD.G. Karnik and ; S.M. Mhamane, Advs.
Respondent AdvocateC.J. Samant, A.G.P. and ; A.C. Agarwal, A.G.P. for respondents 1 and 2
DispositionPetition dismissed
Excerpt:
urban land (ceiling and regulation) act (xxxiii of 1976), sections 2(o) expl. (c), 2(h), 2(q)- words 'plan prepared' in section 2(h)-meaning of-words whether envisage only final plan and not draft development plan-explanation (c) to section 2(o) whether also meant for section 2(q)- agricultural land earmarked in draft development plan for non-agricultural purposes whether not 'vacant land'-maharashtra regional and town planning act (mah. xxxvii of 1966), sections 46, 31(1), 31(6)-words and phrases. ;from chapter iv of the town planning act it is clear that the efficacy and enforcibility of the development plan starts immediately from the time when the draft development plan is prepared. the real test is the legal consequences flowing from the development plan. if certain restrictions are..........j.1. the question involved in this petition relates to the interpretation of the provisions of the urban land (ceiling and regulation) act, 1976, (hereinafter referred to as 'the urban ceiling act').2. the facts of the case are very few. the petitioner is the owner of two relevant pieces of land bearing survey no. 109/4a admeasuring about 12800 sq. metres and survey no. 110/4a admeasuring about 9000 sq. metres, both the lands being situate at pimpri-waghere, pune-18. they are referred to hereinafter as the lands in question.3. on 20-12-1972, pimpri-chinchwad, municipal council which is the planning authority within the meaning of the maharashtra regional and town planning act, 1966 (hereinafter referred to as 'the town planning act') passed a resolution no. 272 earmarking the said two.....
Judgment:

Sharad Manohar, J.

1. The question involved in this petition relates to the interpretation of the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, (hereinafter referred to as 'the Urban Ceiling Act').

2. The facts of the case are very few. The petitioner is the owner of two relevant pieces of land bearing Survey No. 109/4A admeasuring about 12800 sq. metres and Survey No. 110/4A admeasuring about 9000 sq. metres, both the lands being situate at Pimpri-Waghere, Pune-18. They are referred to hereinafter as the lands in question.

3. On 20-12-1972, Pimpri-Chinchwad, Municipal Council which is the Planning Authority within the meaning of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as 'the Town Planning Act') passed a Resolution No. 272 earmarking the said two lands for the residential zone shown in the development plan being prepared by the Municipal Council. Thereafter there appears to have been certain modification in respect of the zonal earmarking. As a result of this modification which was of a general character another Resolution No. 751 dated 24-8-1975 was passed by the Municipal Council once again earmarking these lands for residential purpose: This means that both these lands were included in the residential zone, that is to say non-agricultural zone, as per development plan which was being prepared by the Municipal Council at the said time in the year 1975.

4. The Urban Ceiling Act came into force on 17-2-1976. This means that the lands in question were earmarked in the draft development plan prepared by the Municipal Council, which draft plan was in existence at the time when the Urban Ceiling Act came into force for non-agricultural purposes. It may be mentioned further that at least at this stage, when the petition was being heard by us, there was no dispute that the lands in question were being used by the petitioner mainly for the purpose of agriculture within the meaning of the Urban Ceiling Act. There is, further, no dispute that the lands were shown in the relevant revenue records, at all the material times, to agricultural lands only.

5. It is the contention of the petitioner that these two lands cannot be considered to be vacant lands within the meaning of the Urban Ceiling Act. His contention is based upon certain provisions of the Act to which we will presently refer. His further contention is that if these two lands are excluded from his holding he has only a share in a house and even after taking that into consideration, his holding under the Urban Ceiling Act is far below the ceiling limit prescribed by the Act. He further contends that in spite of this position, by way of abundant, caution, he filed a statement under section 6 of the Urban Ceiling Act showing the above lands in question held by him and also his one-half share in the house referred to in the statement made by him. His grievance is that the Competent Authority under the Urban Ceiling Act issued a draft statement to the petitioner showing therein that the two lands in question were taken as vacant lands within the meaning of the Urban Ceiling Act. The objection raised by the petitioner thereto was overruled by the Competent Authority and a final statement was issued by the Authority stating therein that the above mentioned two lands in question were vacant lands. As per the statement it was declared that out of the two lands in question the petitioner was entitled to retain with him an area upto the ceiling limit and that the remaining area out of the total area of 27,277.65 sq. metres was surplus land.

6. The petitioner filed an appeal against the said order. In the appeal it was contended that the lands in question were being used exclusively for the purpose of agriculture and they were in fact so shown in the relevant revenue records. In this view of the matter, reliance was sought to be placed upon the provisions of section 2(q) of the Urban Ceiling Act read with section 2(o) of the same, and it was contended that the lands in question could not be considered to be vacant lands within the meaning of Urban Ceiling Act.

7. The Appellate Authority negatived this contention of the petitioner. The Appellate Authority held that the lands in question even though agricultural lands, fell in non-agricultural zone and that, hence, they did not get ipso facto exempted. The Additional Commissioner who heard the appeal held that the appellant could have asked for exemption of the land from the operation of the Urban Ceiling Act, but in the absence of any such exemption application the lands could not be excluded from the operation of the same. The appeal was, therefore, dismissed by the learned Commissioner. The present application is directed against the said order.

8. Mr. Karnik, the learned Counsel appearing for the petitioner contended before us that the plain reading of the provisions of section 2(q) of the Urban Ceiling Act would show that the lands in question which were admittedly shown on the relevant revenue records as agricultural lands could not be considered to be the vacant land. He further contended that there was no question of any surplus land being held by the petitioner. According to Mr. Karnik the entire scheme of the Urban Ceiling Act, showed that the lands were mainly for the purpose of agriculture were outside the purview of the Urban Ceiling Act. He contended that in view of the fact that admittedly the lands in question were mainly used for the purpose of agriculture, the statements issued by the Competent Authority and confirmed by the Commissioner showing the surplus held by the Commissioner is erroneous in law.

9. In order to appreciate and decide this question it is necessary to examine the provisions of section 2(o) as well as section 2(q) of the Urban Ceiling Act in the first instance. Section 2(o) of the Act defines vacant land. The definition clearly shows that the land referred as urban land within the relevant Master Plan is urban land but it does not include any land which is mainly used for the purpose of agriculture. The Explanation (C) to said section 2(o) makes it clear that no land in the urban agglomeration will be considered to be one mainly used for the purpose of agriculture unless the land was shown in the relevant revenue record at the relevant time that is to say on the date of coming into operation of the Urban Ceiling Act (17-2-1976) as one being mainly used for the purpose of agriculture. Explanation (C) to section 2(o) lays down a very important rule of interpretation. Said Explanation (C) to section 2(o) of the Urban Ceiling Act reads as follows :---

'Notwithstanding anything in Clause (B) of this Explanation, land shall not be deemed to be mainly used for the purpose of agriculture if the land has been specified in the Master Plan for a purpose other than agriculture.'

It is thus clear that if there existed a Master Plan and if the lands in question were shown in the Master Plan as lands to be used not for the purpose of agriculture then notwithstanding the fact that they were in fact being used for agriculture, they would have to be held as non-agriculture lands and as such vacant lands. The entire question, therefore, boils down to the question as to whether on the date of coming into force of the Urban Ceiling Act, the lands in question were shown to be falling in non-agricultural zone or agriculture zone. If they were in the agriculture zone then evidently they would be excluded from the operation of the Urban Ceiling Act. If on the other hand they were shown to be in the non-agriculture zone, notwithstanding the fact that they were actually and mainly used for the purpose of agriculture, they could not be considered to be agricultural lands.

Section 2(h) of the Urban Ceiling Act defines Master Plan. The definition runs as follows:

'Master Plan', in relation to an area within an urban agglomeration or any part thereof, means the plan (by whatever name called) prepared under any law for the time being in force or in pursuance of an order made by the State Government for the development of such area or part thereof and providing for the stages by which such development shall be carried out.'

From the above definition it is clear that if any plans prepared by the Local Authority under the Maharashtra Regional Town Planning Act on the date of the commencement of the Urban Ceiling Act and the lands in question are shown in the same to be used for non-agriculture purpose then the lands would be vacant lands, notwithstanding the fact that they were actually used for the purpose of agriculture in the main.

10. It is here that we are required to examine the contention of Mr. Karnik the learned Counsel for the petitioner. His contention is that the words 'plan prepared', employed by section 2(h) of the Urban Ceiling Act envisage a final plan prepared by the Planning Authority. He referred to the various dates mentioned above and pointed out that on the date when the Urban Ceiling Act came into force on 17-2-1976, the development plan contemplated by the Planning Authority was not a final plan at all; the plan was only at the draft stage. According to him the provisions of Town Planning Act make a clear distinction between the draft development plan and final development plan prepared by the Planning Authority. According to him, the provisions of Explanation (B) to section 2(h) made it clear that if in the revenue records the lands in question were shown to be used mainly for the purpose of agriculture, then these lands were not vacant lands. He contended that the Master Plan contemplated by Explanation (C) to section 2(h) of the Urban Ceiling Act was final plan prepared by the Planning Authority under the Town Planning Act. In this connection he invited our attention to the various stages through which the development plan was processed. He contended that the plan becomes final development plan only when the final sanction was received by the Planning Authority from the State Government under section 3(2) of the Town Planning Act. In his submission the word 'prepared' finding place in section 2(h) of Urban Ceiling Act connotes final preparation and not the entire process of preparation. In other words, according to him, the development plan which was only a draft development plan was not a Master Plan contemplated by section 2(h) of the Urban Ceiling Act.

11. The second line of argument of Mr. Karnik is that whatever may be the definition of 'urban land' under section 2(o) of the Urban Ceiling Act, what we are concerned with is the question whether the lands in question are 'vacant lands'. He pointed out that vacant land is defined by section 2(q). As per said section 2(q) the concept of vacant land did not embrace in itself any land mainly used for the agriculture. Mr. Karnik's contention was that Explanation (C) finding place in section 2(o) had no application to the definition of vacant land finding place in section 2(q). of the Act. According to Mr. Karnik, this meant that even if a draft development plan was held to be a Master Plan within the contemplation of section 2(o) of the Act still that fact may have no bearing on the question as to whether it was vacant land or not.

12. The arguments of Mr. Karnik are quite attractive. But after careful consideration of the same and after examining the entire scheme of the Town Planning Act read with provisions of Urban Ceiling Act, we are satisfied that the same cannot be accepted.

13. As regards the first contention of Mr. Karnik, it is necessary to examine the legal efficacy of the draft development plan prepared under the Town Planning Act. If the draft development plan has no legal efficacy whatsoever and if this document prepared as draft development plan was of no legal effect until the plan had been finalised by the Government, it could be legitimately contended that there is no plan 'prepared' by the Planning Authority under the Town Planning Act at all and in that case the provisions of section 2(e) with particular reference to Explanation (C) of the same would have no application at all.

14. However, if we turn to Chapter IV of the Town Planning Act, we find that the efficacy and enforceability of the development plan starts immediately from the time when draft development plan is prepared. In fact upon the very declaration of intention to prepare the development plan restrictions get themselves imposed upon a person desirous of developing the land. In that event the person concerned is required to apply for permission for the development and as per section 46 of the Town Planning Act permission can be granted by the Planning Authority until after having due regard to the provisions of draft development plan published or sanctioned under the Act. This means that the mere publication of the draft development plan, provided it is made in the manner prescribed by law, gives to the development plan a legal efficacy and enforceability.

15. No doubt under section 31 of the Town Planning Act, the development plan does not become a final development plan until the same has been finally sanctioned by the Government under section 31(1) of the Act. But the efficacy of the final plan is to be found in sub-section (6) of section 31. As per said sub-section (6) upon the plan having been finally sanctioned, it becomes binding upon the Planning Authority. But the point is that its legal efficacy, in the context of the Cities' development is, for all practical purposes, the same as the legal efficacy of draft development plan. There is no doubt that the Planning Authority is competent to make variations of the draft development plan. The persons affected by the draft development plan are entitled to raise objections to the provisions of the same and the Planning Authority is bound to consider the said objections before the development plan is finalised. It is true that variations in the final development plan cannot be made with that facility and final development plan is more rigid in the finality than the draft development plan. But in the ultimate analysis, it is a question of degree. Even the final development plan is capable of being revised by the State Government. The sanction accorded by the Government to the plan results in the plans being binding on the Planning Authority and there is nothing in the Act under which the State Government is precluded from revising the plan.

16. The real test, to our mind, is the legal consequence flowing from the development plan. If certain restrictions are imposed upon the holders of land in the matter of development of the land by virtue of any development plan, then the said development plan is the relevant plan and hence the Master Plan within the contemplation of section 2(o) of the Urban Ceiling Act. The word 'prepared' employed in section 2(o) of the Urban Ceiling Act cannot be restricted to mean 'finally prepared'. We find no justification to add the word 'finally' to the word 'prepared' finding place in said section 2(o) particularly because in the context of the intendment, aims and objects of the Urban Ceiling Act, at draft development plan prepared under the Town Planning Act has an efficacy which is co-extensive with the efficacy had by the final development plan. We, therefore, cannot accept the contention of Mr. Karnik that the draft development plan prepared by the Municipal Council which was in force on the date when the Urban Ceiling Act came into force was not the Master Plan in force in that area on the date on which the Urban Ceiling Act came into force.

17. This takes us to the second and alternative contention of Mr. Karnik. His contention is that the Explanation (C) finding place in section 2(o) finds no place in section 2(q) of the Act and hence even though the lands in question are included in the draft development plan for non-agriculture purpose they would not cease to be the lands mainly used for the purpose of agriculture and if that was so they are not vacant land within the meaning of section 2(q) of the Act.

18. To our mind even this argument has got to be rejected. We are satisfied that the Explanation (C) finding place at the end of section 2(q) is not intended to be restricted only to section 2(q). A careful reading of sections 2(q) and 2(q) reveals that the concept of vacant land embodies in itself the concept of urban land. The definition of the words 'urban land' and 'vacant land' have got to be read in conjunction with each other. In this connection it is significant that Explanation (B) which defines the concept of 'land used mainly for the purpose of agriculture' is not restricted to Clause (o) only. The explanations are meant for section 2(o) as well as for section 2(q). As a matter of fact the explanations start with the words 'for the purpose of this clause and Clause (q)'. This clearly means that an agriculture land will not be deemed to be agriculture land if in the Master Plan the same is shown to be earmarked for non-agriculture purpose. In this view of the matter we are of the opinion that the view taken by the Authorities below does not suffer from any legal error.

19. For the reasons mentioned above, we are inclined to dismiss the petition. The rule earlier issued is, therefore, discharged.

In the circumstances of the case there shall be no order as to costs.


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