RAJU S. JETHMALANI AND ORS. versus STATE OF MAHARASHTRA AND ORS.

Citation: [2005] SUPP. 1 S.C.R. 1 · Decided: 05-05-2005 · Supreme Court of India · Bench: ASHOK BHAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

RAJU S. JETHMALANI AND ORS. 
v. 
ST ATE OF MAHARASHTRA AND ORS. 
MAY 5, 2005 
[ASHOK BHAN AND A.K. MATHUR, JJ.] 
Municipal Corporation: 
Maharashtra Regional and Town Planning Act, 1966: 
Private land earmarked Jo; purpose of garden in the development plan, 
not acquired by the Corporation-Proposal of owner of land for its de-
reservation allowed-Challenged by residents of the area-High Court directing 
owner to find an alternate plot within 2 years and on failure to set aside de-
reservation-Correctness of-Held, High Court erred in placing the burden 
on the owner of land-Development plan comprising of private land cannot 
be implemented unless such land is acquired-Corporation and Government 
having expressed their inability to acquire that land, cannot deprive the owner 
from using their private property. 
A 
B 
c 
D 
A development plan was prepared on 15.8.1986, whereunder Plot no E 
438 in Salsibury Park, having area of 1.50 acres was earmarked as park 
and garden in order to promote ecology. Plot no.438 was owned by 
respondent no.3. She did not object to its reservation. Appellants bought 
this plot cheaply in Dec., 86. Thereafter, appellants initiated proposal for 
de-reserving this plot Government and Municipal Corporation expressed 
their inability to acquire this land for lack of funds, and thus de-reserved F 
the plot by Notification dated12.2.1993. This was challenged by residents 
.in a PIL. Reliance was placed on Bangalore Medical Trust case*. The 
Municipal Corporation opposed on the ground that in Bangalore Medical 
Trust case*, there was prohibition to dereserve while in the instant case 
there was no prohibition. High court on equitable consideration passed a G 
conditional orde,r on 4.9.1997 allowing the appellants to find out an 
alternate area in the vicinity for purposes of garden within 2 years, and 
011 failure to quash the Notification. Appellants applied for clarification 
which was rejected on 8.9.1999. They appealed to Supreme Court against 
both' these orders. 
H 
2 
SUPREME COURT REPORTS [2005) SUPP. I S.C.R. 
A 
Allowing the appeals, the Court 
B 
HELD: 1.1. There is no prohibition of including private land in a 
development plan but no development can be made on that land unless 
that private land is acquired for development. The Government cannot 
deprive the persons from using their private property. [6-C] 
1.2. Plot No.438 belonged to private person and it was shown as a 
garden in the development plan of 1966. But no effort was made by the 
Municipal Corporation or the Government to acquire this plot for the 
purpose of developing it as a garden. When it was not acquired for the 
C purpose of garden, the owner of this land i.e. the appellants moved the 
Government for de-reserving this land and the Government after resorting 
to necessary formalities de-reserved the land tiy Notification dated 
12.2.1993. All the procedures which were required under the Maharashtra 
Regional and Town Planning Act, 1966 were observed, the notification was 
issued inviting objections against de-reservation. No objection was filed 
D by the residents of the area and ultimately a proposal was put up before 
the Municipal Council. It also resolved that Municipal Council is not in a 
position to acquire the land because of financial crunch and accordingly, 
the Government was intimated. Government accordingly de-reserved it 
and consequently, issued the impugned notification 'dated 12.2.1993~ after 
which the residents of the area woke up and brought about this public 
E interest litigation. [6-E, F, G) 
2. It is not disputed that open park and garden are necessary for 
the residents of the area. But at the same time, a citizen should not be 
deprived of his rights without following proper procedure of law. The 
F period of deferring the quashing of the de-reservation notification for two 
years by the High Court was perhaps to allow the Government or the 
Municipal Corporation to muster up funds so as to;acquire the same. But 
earnest hope was frustrated when no step was taken by the Municipal 
Corporation. The direction given by the High Court that within this period 
if the appellants provide necessary area, approximate in size, sqitable for 
G the purposes of garden and park as envisaged in th~ Development plan to 
the satisfaction of the Planning authority, quashing and setting aside of 
the impugned notification will not be operative. It is difficult to understand 
how can the burden be plac~d on 

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