Udhav Tatya Bhopale Vs. State of Maharashtra and ors. - Court Judgment

Excerpt:
civil - master plan - section 2 of urban land (ceiling and regulations) act, 1976 and section 36 of maharashtra regional and town planning act, 1966 - whether master plan existed as prescribed under section 2 (h) on date when act of 1976 came into force - layout scheme which was claimed to be zone plan by respondents does not satisfy requirements of section 2 (h) to be considered as master plan as layout scheme was only mere sketch - if facts of case reveal that zone plan prepared by assistant director of town planning not in accordance with law and does not provide stages by which development shall be carried out then government cannot treat such plan as master plan under section 2 (h) - land of petitioner cannot be held to be urban lands under section 2 (o) for non-compliance of provisions of section 2 (h). - code of criminal procedure, 1973 [c.a. no. 2/1974]. section 41: [ swatanter kumar, cj, smt ranjana desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not remediless and that would further buttress the above view. [jagannath singh v dr. ajay upadyay & anr 2006 cri lj 4274; 2006 (5) air bom r held per incuriam]. - shri paranjpe submitted that government resolution dated december 20, 1984 clearly wipes out the affect of the judgment delivered earlier by the division bench. 7. in former state of bombay the first legislation for ensuring that the two planning schemes are made in a proper manner and execution properly carried out was enacted in the year 1950 and is known as 'bombay town planning act, 1950'.the said act was repealed by the 'bombay town planning act, 1954' and which in its turn stands repealed by the 'maharashtra regional and town planning act, 1966'.the act of 1966 exhaustively deals with preparation of various plans like original plan, development plan etc. the learned counsel submitted that though the plan prepared under any law was not in operation, still the plan prepared in pursuance of the order made by the state government for development of the area where the lands are situated was in existence and therefore requirements of section 2(h) are satisfied. it is interesting to note that in the year 1963 the bombay town planning act, 1954 was in operation and it is not the claim of the state government that the provisions of the act are applicable to the area which is outside the town of solapur. the assistant director in his turn forwarded a sketch of areas outside the solapur municipal limits for approval to the director on march 18, 1972 and the director gave approval on july 5, 1972. it is interesting to note that the maharashtra legislature had already enacted the maharashtra regional and town planning act, 1966 and any development plan or regional plan could be prepared only in accordance with the provisions of that act. the rule also provides that the lay out shall satisfy various requirements, like minimum width of road, alignment of roads, by-lanes, shape of the buildings, open places, public buildings etc. (c) dealing satisfactorily with areas of bad layout, obsolete development and slum areas and re-location of population; 2095, 2096 and 2097 of 1980, delivered on february 18, 1987). we fail to appreciate how the decision could advance the case of the respondents. the division bench on the facts and circumstances of the case held that the petitioners had not pleaded in the petition that requirements of section 2(h) were not satisfied, and therefore, the agricultural lands cannot be treated as 'urban lands'.the division bench dismissed the petition in absence of any pleadings and that decision can have no bearing to the contentions raised in the present petition. such executive direction clearly conflicts with the central legislation and therefore cannot be permitted to stand.m.l. pendse, j.1. the question which falls for determination in this petition filed under article 226 of the constitution of india is whether the two pieces of lands which are mainly used for the purpose of agriculture can be considered as urban land under section 2(o) of the urban land (ceiling and regulations) act, 1976. to appreciate the contentions raised on behalf of the petitioner, it is necessary to set out few undisputed facts.2. the petitioner is owner of two agricultural lands being survey no. 310/2 admeasuring 8 hectares 67 ares, and survey no. 307/2 admeasuring 2 hectares 57 ares, both situated at village majrewadi in north solapur taluka of solapur district. the lands are situated within the local area of majrewadi village panchayat constituted under section 4 of the bombay village panchayats act 1958.3. after the advent of the urban land ceiling act, which came into operation from february 17, 1976, the petitioner filed return as contemplated under section 6(1) of the act. the lands are situated within the radius of 5 kilometres from the boundaries of solapur urban agglomeration. the competent authority solapur agglomeration after following the requisite procedure, passed order under section 8(4) of the act finalising the draft statement published earlier. to the draft statement published and served upon the petitioner, on december 29, 1979 the petitioner pointed out that the two lands are mainly used for the purpose of agriculture and are therefore excluded from the definition of 'urban land' under section 2(o) of the act. the competent authority turned down the contention on the ground that the two pieces of agricultural lands are reserved in the zonal plan, which is treated as a master plan, for the purposes of residential use and consequently the lands are required to be treated as urban land in accordance with provisions of section 2(o)(c) of the act. the petitioner filed the present petition to challenge the legality of the order of the competent authority and in paragraph 10 of the petition reasons are set out for not approaching the appellate authority under section 33 of the act. the division bench at the stage of admission of the petition decided to entertain the petition even though the petitioner had not approached the appellate authority, presumably because the question raised in the petition is of considerable importance and would affect large number of cases.4. to appreciate the grievance of the petitioner that the two pieces of a agricultural lands cannot be treated as 'urban land' under section 2(o) of the act, it is necessary to refer to certain provisions of the act. section 2(o) inter alia provides that 'urban land' means any land situated within the limits of urban agglomeration and referred to as such in the master plan. the definition further provides that any land which is mainly used for the purposes of agriculture will not fall within the ambit of the expression 'urban land' even though such land is within the limits of urban agglomeration and referred to as such in the master plan. the exception carved out in respect of the lands which are mainly used for the purposes of agriculture is further limited by provisions of section 2(o)(c) of the act. this part of the definition provides:'(c) notwithstanding anything contained in the 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.the expression 'master plan' is defined under section 2(h) of the act and reads :'(h)' 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 mad by the state government for the development of such areas or part thereof and providing for the stages by which such development shall be carried out.'the controversy in the petition centres round as to whether there was in existence the master plan as prescribed under section 2(h) of the act, on the date when the act came into force, specifying that the lands of the petitioner are reserved for the purpose other than agriculture.5. shri shah, learned counsel appearing on behalf of the petitioner, submitted that the controversy stands concluded the decision dated august 31, 1982 of the division bench in writ petitions nos. 650, 651 and 4241 of 1981. in the case before the division bench the issue arose as to whether the land situated within the limits of majrewadi and used for agricultural purpose can be treated the urban land. the state government claimed that a zonal plan was prepared and approved by the director of town planning on july 5, 1972 and in the zone plan stages of development have been entitled by earmarking residential zone, industrial zone, no development zone, including skeleton roads. the state government claimed that the zone plan is equivalent of the master plan contemplated under section 2(h) of the act. the division bench noticing that the material relied upon by the state government was entirely insufficient to warrant a conclusion that the zone plan can be equated to the master plan, held that the said plan cannot permit the state government to claim that the agricultural lands in village majrewadi were reserved for residential purposes in the master plan. shri shah submitted, and in our judgment with considerable merit, that in view of the decision of the division bench, it is not open for the state government to reagitate the issue in the present petition. shri paranjpe, learned counsel appearing on behalf of the state government, submitted that in addition to the material produced before the earlier division bench the state government is relying upon order issued by the state government authorising the collector to prepare lay-out in accordance with government resolution no. 2648/33 dated october 18, 1940. shri paranjpe further submitted that a part from this additional material the government had issued resolution dated december 20, 1984 directing that the zone plan prepared in respect of the area abutting the limits of solapur municipal corporation shall be treated as a master plan for the purposes of clause (h) of section 2 of the act. shri paranjpe submitted that government resolution dated december 20, 1984 clearly wipes out the affect of the judgment delivered earlier by the division bench.6. in view of these rival contentions, the first question which requires determination is whether the state government has produced sufficient material to indicate that the master plan as contemplated under section 2(h) of the act specifying the purpose of the land for other than agriculture was in existence on the date when the act came into force. to answer the question it is necessary first to critically examine the expression 'master plan' under section 2(h) of the act. the definition can be conveniently divided into two parts (a) the plan prepared under the law for the time being in force; and (b) plan prepared in pursuance of an order made by the state government for the development of an area or part thereof and providing for the stages by which such development shall be carried out.7. in former state of bombay the first legislation for ensuring that the two planning schemes are made in a proper manner and execution properly carried out was enacted in the year 1950 and is known as 'bombay town planning act, 1950'. the said act was repealed by the 'bombay town planning act, 1954' and which in its turn stands repealed by the 'maharashtra regional and town planning act, 1966'. the act of 1966 exhaustively deals with preparation of various plans like original plan, development plan etc. and which requires preparation after notice to the affected land holders. shri paranjpe for the government very fairly stated that on the date of coming into force of the act there was no plan prepared under the law for the time being in force. in other words, no plans under the town planning acts of the years 1950 and 1954 and maharashtra zonal and town planning act of 1966 were in existence. the learned counsel submitted that though the plan prepared under any law was not in operation, still the plan prepared in pursuance of the order made by the state government for development of the area where the lands are situated was in existence and therefore requirements of section 2(h) are satisfied. to accept the submission of the learned counsel, it is not enough that the plan prepared in pursuance of the order made by the state government for development of the area was in existence, but it is also necessary to establish that such plan provides for the stages by which such development will be carried out. in answer to the petition shri pratap narayan mujumdar. town planner in the office of the assistant director of town planning, solapur has filed return sworn on february 11, 1986 and paragraph 2 of the return sets out the factual data to assert that the plan for the development of the area was prepared in pursuance of the order issued by the state government.the return claims that solapur municipality had passed resolution dated november 20, 1961 with regard to the preparation of the zone plan and the same proposal was sent by the president of the municipal committee on november 29, 1961 to the collector, with a copy intimated to the minister, urban development and public health department. neither the resolution nor the proposal claimed to have been forwarded to the collector is produced by the state government but only copy of the letter dated april 26, 1963 addressed by the assistant secretary to the government to the president of the solapur municipality is produced. the letter inter alia recites that the collector of solapur has been requested to exercise strict control on future developments for areas outside the municipal limits of solapur. the letter further recites that the town planning and validation departments will prepare broad lay-out for area outside the municipal limits with a view to controlling the development thereon. it is interesting to note that in the year 1963 the bombay town planning act, 1954 was in operation and it is not the claim of the state government that the provisions of the act are applicable to the area which is outside the town of solapur. the return then refers to the letter dated december 10, 1964 from the director of town planning to the assistant director of town planning, solapur recommending preparation of the broad lay out for the areas outside the solapur municipal limits. the assistant director in his turn forwarded a sketch of areas outside the solapur municipal limits for approval to the director on march 18, 1972 and the director gave approval on july 5, 1972. it is interesting to note that the maharashtra legislature had already enacted the maharashtra regional and town planning act, 1966 and any development plan or regional plan could be prepared only in accordance with the provisions of that act. it is not the claim of the state government that the broad lay-out plan prepared by the director of town planning in the year 1972 is in accordance with the requirements of the provisions of the regional town planning act, 1966. the provisions of the regional town planning act, 1966 requires that before any regional plan or development plan are prepared the authorities are required to publish notice and invite objections if any, from the holders of the lands included in the development or regional plan, and plan could be finalised only after consideration and determination of such objections. it is not the claim of the state government that the broad lay out plan for the areas outside the solapur municipal limits, and which includes the lands of the petitioner, was prepared after giving any notice to the holders of various lands.8. shri paranjpe submitted that the broad lay-out is treated by the government as a zone plan and it should be equated to the master plan contemplated under section 2(h) of the act because the zone plan earmarks various areas for the purpose of residential use, industrial use or for construction of roads. the claim of the state government that the broad lay out is equivalent to zone plan is falacious. what is produced for our perusal from the original file is merely a sketch on which different areas are marked in different colours denoting residential use, industrial use or reserved for roads. this sketch can by no stretch of imagination be treated as a development plan for the areas. there are no notes prepared or attached to the sketch to indicate how the state government proposes to develop the area, nor does it indicate the stage by which such development shall be carried out. this aspect of the matter will be dealt with at a later stage, as first it is necessary to examine under what powers the state government issued the orders to prepare the lay out plan. shri paranjpe submitted with reference to the return filed by the respondents, that the directions were given to prepare the lay-out plan in accordance with the government resolution dated october 18, 1940. the resolution deals with the subject of lay-out of the agricultural lands ripe for development as building areas, and inter alia, recites that in growing and important villages in which there are no municipalities, before permission is given under section 65 or 67 of the land revenue code to use for building purposes lands occupied and assessed for agriculture certain precautions should be taken. the resolution sets out the regulations which the collector should enforce and perusal of the resolution leaves no manner of doubt that the instructions are given to the collector should enforce and perusal of the resolution leaves no manner of doubt that the instructions are given to the collectors to ensure that the buildings which will be raised on the lands should be regulated. at the foot of the resolution the following direction is set out:'the settlement commissioner and director of land records should be requested to take steps to include the above rules as administrative order no. xxiv-a and place it after rule 47 of the land revenue rules.' shri paranjpe submitted that the resolution of the government confers power to issue directions for the development of the area. it is impossible to accede to the submission. in the first instance the government resolution is issued to regulate powers of the collector under section 65 or 67 of the bombay land revenue code, 1879. section 65 deals with the subject of use to which the occupant can put his agricultural lands and the procedure if the occupant wishes to apply for user of the lands for the purposes other than agriculture. section 67 confers power upon the collector to grant permission on conditions. the government resolution dated october 18, 1940 was issued for the purpose of regulating the manner of exercise of powers by the collector. it must be borne in mind that he provisions of the bombay land revenue code, 1879 were enacted for the purpose of consolidating the law relating to revenue officers and of the land revenue in the presidency of bombay. the object of enactment is collection of land revenue and had nothing to do with the development of any area. the provisions of the land revenue act do not require the authorities constituted under the act to deal with the development of the area, but only confers power to ensure the user of the lands. the land revenue collected for agricultural use of the land is comparably less than the revenue collected for non-agricultural user. it is not open for the revenue authorities to compel any holder to convert the user to non-agricultural, nor the permission could be refused if sought for non-agricultural user without any sound reasons. in our judgment, it is a far cry to suggest that the provisions of the land revenue code incidentally provides for development of area or part thereof as contemplated under section 2(h) of the act. in our judgment, the state government could not have issued directions in pursuance of the government resolution dated october 18, 1940 to prepare a plan for development of the area in which the lands of the petitioner are situated.9. there is another aspect of the matter which cannot be overlooked. it is not permissible for the state government to fall back upon the resolution dated october 18, 1940 issued to regulate the powers of the collector under section 65 and 67 of the land revenue code to claim that the lay out prepared in the year 1972 was in pursuance of the said resolution. shri paranjpe had to concede that the legislature had enacted the bombay village panchayat act, 1958, which came into operation from january 23, 1959, and in respect of every village a gram panchayat was constituted. section 52 of the village panchayat act confers power on the panchayat to control erection of buildings. in exercise of powers conferred by clause (x) of sub-section (2) of section 176 of the village panchayat act, the government of maharashtra had framed rules known as maharashtra village panchayat (principles for extension of village sites and regulation of buildings) rules, 1967. these rules exhaustively deal with preparation of lay out for sites selected for village extension and rule 6 requires the village panchayat to prepare a lay out for the lands comprising the site selected for extension of the village. the rule also provides that the lay out shall satisfy various requirements, like minimum width of road, alignment of roads, by-lanes, shape of the buildings, open places, public buildings etc. it is obvious that after the enactment of village panchayat act and the rules the powers to prepare lay out plan for the areas covered by the villages is exclusively conferred on the panchayats and thereafter it is not permissible for the state government by executive fiat to instruct the director of town planning to prepare lay out plans. it is therefore obvious that the government resolution dated october 18, 1940 had lost its efficacy after the advancement of various legislations enacted by the maharashtra government and which conferred power upon the village panchayat to prepare lay out plans of area covered in the village. in our judgment, it is not open for the state government to claim that the lay out plan prepared by the director of town planning in the year 1972 without reference to the provisions of various legislation and without providing for any opportunity to any of the land holder is a zone plan which can be quitted with the master plan as prescribed under section 2(h) of the act.10. section 2(h) as mentioned hereinabove provides that it is not sufficient that the plan should be made in pursuance of an order made by the state government for the development of such areas or part thereof, but must also provide for stages by which such development shall be carried out. it was contended on behalf of the petitioner that the layout scheme, which is claimed to be a zone plan by the respondents, does not satisfy the requirements of section 2(h) of the act to be considered as a master plan, because the layout scheme is nothing but only a sketch. the original sketch was produced for our perusal by shri paranjpe and the same indicates that the director of town planning has merely prepared a sketch on which areas are reserved for residential zone, industrial zone, agricultural zone, etc. this sketch can be no stretch of imagination be said to be providing for the stages by which such development shall be carried out. what is contemplated by section 2(h) is that the plan should prescribe the time and the time and the manner in which development shall be carried out. the development plan to fulfil the requirements of section 2(h) of the act must provide for :(a) detailed development of specific areas for urban renewal, housing, shopping centres, industrial areas, civic centres, educational and cultural institutions;(b) control of architectural features, elevation and frontage of buildings and structures;(c) dealing satisfactorily with areas of bad layout, obsolete development and slum areas and re-location of population; and(d) open spaces, gardens, playground and recreations areas.the development plan must also accompany the report:(a) explaining the proposals and the stages of the development programme by which it is proposed to execute the plan or plans; and(b) giving an appropriate estimate of the cost involved in executing the proposals of the plans or plans.it is futile to suggest that preparation of mere sketch of the area is enough to equate such sketch with the development plan which provides for states by which such development shall be carried out. it also cannot be overlooked that after the advent of the maharashtra regional and town planning act, 1966 the development plans are required to be sanctioned by the state government and sanction is permissible provided the draft development plan is duly published in the government gazette and objections are invited and determined. it is not permissible after the enactment of maharashtra regional and town planning act, 1966 to fall back upon the development plan prepared prior to the commencement of the act in view of the specific provisions of section 36 of the act. the development plan prepared prior to the act is to be treated as merely a draft development plan and thereupon the provisions dealing with sanction of such draft development plan by the state government are to apply mutatis mutandis. in view of the provisions of section 36 of the act even assuming that the zone plan or the layout scheme prepared by the director of town planning in the year 1972 is valid, still it cannot have any legal effect in absence of mandatory requirements of the 1966 act being carried out. in our judgment, the zone plan cannot be equated with the master plan as it fails to provide for the stages by which the development shall be carried out. shri paranjpe referred to the decision of division bench to which one of us (pendse, j.) was party, in (writ petition nos. 2095, 2096 and 2097 of 1980, delivered on february 18, 1987). we fail to appreciate how the decision could advance the case of the respondents. the division bench on the facts and circumstances of the case held that the petitioners had not pleaded in the petition that requirements of section 2(h) were not satisfied, and therefore, the agricultural lands cannot be treated as 'urban lands'. the division bench dismissed the petition in absence of any pleadings and that decision can have no bearing to the contentions raised in the present petition.11. shri paranjpe finally submitted that the government of maharashtra, urban development department, has issued directions by resolution dated december 20, 1984 that the zone plan prepared by the assistant director of town planning and approved by the director of town planning in respect of the areas abutting the municipal limits of solapur municipal corporation shall be the master plan for the purposes of clause (h) of section 2 of the act. shri paranjpe submitted that in view of the government resolution the decision recorded by the competent authority cannot be disturbed. the submission is entirely misconceived. in the first instance it is difficult to appreciate how the government by an executive fiat can direct that the zone plan prepared on july 5, 1972 shall be the master plan for the purposes of section 2(h) of the act. it is not permissible for the state government by executive orders to declare that the plan which does not comply with the requirements of section 2(h) of the act shall be treated as the master plan. the executive direction is entirely unsustainable, in view of the decision recorded by the division bench of this court on august 31, 1982 in writ petition nos. 650 and 651 of 1981. it is not open for the state government to by pass the decision of this court by issuing such executive directions.there is another aspect of the matter which cannot be overlooked. the act is a central legislation and though the legislation provides that the plan prepared in pursuance of the order made by the state government can be treated as a master plan, the state government cannot direct that any plan prepared by the state government, even though it is violative of the law for the time being in force and even though it does not comply with the requirements of section 2(h) of the act shall be treated as a master plan. such executive direction clearly conflicts with the central legislation and therefore cannot be permitted to stand. shri paranjpe realising the short coming of the exercise carried out by the government by issuance of the government resolution, very fairly stated that in case the court comes to the conclusion that the zone plan prepared by the assistant director of town planning is not in accordance with the law for the time being in force and also does not provide for the stages by which development shall be carried out, then the government cannot direct that such plan should be treated as a master plan under section 2(h) of the act. it would not be out of place to mention that legislation prevailing in this state in respect of regulations of development of lands does not contain the expression 'master plan'. in our judgment, the resolution dated december 20, 1984 issued by government of maharashtra is entirely illegal and therefore null and void. it is not open for the respondents to fall back upon the resolutions to sustain the order of the competent authority.12. accordingly, petition succeeds and the order dated february 18th 1980 passed by the deputy collector and competent authority, solapur urban agglomeration, solapur on february 18, 1980 in exercise of powers under section 8(4) of the act and the copy of which is annexed as exhibit 'c' to the petition, is set aside, and it is declared that the petitioner is not holding any vacant land. there will be no order as to costs.in case the petitioner has been dispossessed, then the respondents shall restore back possession of lands recovered in pursuance of order passed by the competent authority.