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TMI Blog2011 (9) TMI 1125X X X X Extracts X X X X X X X X Extracts X X X X ..... ituated at MIG Colony, Gandhi Nagar, Bandra (East) in the city of Mumbai. Respondent No. 4, Maharashtra Housing and Area Development Authority (hereinafter referred to as MHADA ) and Respondent No. 5, Bombay Housing and Area Development Board (hereinafter referred to as BHADB ) with the consent of Respondent No. 3, Municipal Corporation of Greater Bombay (hereinafter referred to as the Corporation ) under a resolution of February, 1965 granted lease for a period of 99 years to the writ petitioner on a premium equivalent to the price fixed and payable annually by way of installments. According to the writ petitioner, however, on measurement of the plot, the area was found to be 7301.25 sq. yards and when it proposed to construct a school building thereon, it came to its notice that the area in question has been reserved for a playground in the draft development plan. Writ Petitioner brought this fact to the notice of MHADA and BHADB by letter dated 8th of May, 1968 and in answer thereto the writ petitioner Society was asked to get the user of the land changed in accordance with law. Meanwhile, according to the writ petitioner, the Maharashtra Regional and Town Planning Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitioner that attempts were made to convince it to shift the school to another plot as the plot in question was required by the MIG Cricket Club (hereinafter referred to as the Club ) for its playground. Petitioner did not yield to the pressure and by letter dated 10th of November, 1986 sought permission to erect a compound wall on account of the threats given by the Club. The Corporation by its communication dated 24th of November, 1986 gave the permission sought for and informed the writ petitioner to submit development plan to the State Government. According to the writ petitioner, the Corporation informed it that in the proposed development plan submitted to the Government, by mistake it has shown the plot in question as cricket club and playground . In the aforesaid premises petitioner was asked to approach the State Government to get the mistake rectified. As directed, the petitioner by letter dated 8th of November, 1986 approached the State Government for rectification of the mistake and the same was acknowledged by the Corporation stating that appropriate action would be taken in this regard. However, to its surprise the petitioner came across the notification da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under Section 31(1) of the Act was legal, valid and complied with the provisions of the Act. 8. The High Court on appraisal of the materials came to the conclusion that the notification dated 10th of April, 1985 purportedly issued in exercise of the powers under Section 37(2) of the Act was in fact issued in exercise of the power under Section 31(2) of the Act. While doing so the High Court observed as follows: The very fact that the draft development plan was prepared and placed for objections and suggestions from the members of the public on 30th April, 1984 and thereafter, by the notification dated 10th April, 1985 the respondents had finalized the reservation of the land in question to be for school and cultural centre, even though the notification on the face of it refers to the exercise of powers under Section 37(2) of the said Act, for all the legal purposes, it will have to be construed as having been issued in exercise of powers under Section 31 of the said Act in relation to the area in question. It is pertinent to note that there is no dispute on the point that subsequent to the draft development plan was prepared on 30th April, 1984, there was no finalizat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the notification dated 10th April, 1985. Accordingly the High Court allowed the writ petition, quashed the impugned notification and granted the relief sought for by the writ petitioner. 9. Mr. Shyam Divan, Senior Advocate appearing on behalf of the appellant contends that the High Court erred in holding that the notification dated 10th April, 1985 is, in fact, final development plan in relation to the area in question as contemplated under Section 31(1) of the Act. He points out that under Section 35 of the Act a development plan sanctioned by the State Government before commencement of the Act shall be deemed to be final development plan sanctioned under the Act. According to him, the notification dated 10th April, 1985 modified the deemed final development plan which was in existence prior to the coming into force of the Act. Under the deemed development plan, according to Mr. Divan, the area in question was shown as playground and hence, the modification in the final development plan can be done in exercise of the power conferred under Section 37(2) of the Act. In fact, while issuing the notification dated 10th April, 1985, such a power was exercised which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld take some time. A town cannot exist without a Development plan, otherwise it would lead to chaos. No Development plan was made under the Act which came into force on 20th of December, 1966 and hence the legislature created a legal fiction by enacting Section 35 of the Act. It provided for assuming a fact i.e. existence of a Development plan, which was, in fact, not made in accordance with the provisions of the Act. It has to be borne in mind that when a legal fiction is created it shall be given full effect. Generally legal fiction is created to advance public policy and preserve the rights of certain individuals and institutions. Legal fiction tends to treat an imaginary state of affairs as real and entails the natural corollaries of that state of affairs. Hence, the Development plan, existing prior to the coming into force of the Act, shall be deemed to be a sanctioned Development plan under Section 31(1) of the Act. 12. Section 31(1) of the Act inter alia provides for sanction of the draft Development plan, the same reads as follows: 31. Sanction to draft Development plan. (1) Subject to the provisions of this section, and not later than one year from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... odification is sanctioned, the final Development plan shall be deemed to have been modified accordingly. From a plain reading of the aforesaid provision it is evident that the State Government has been conferred with the power to make minor modification to the final Development plan. Thus, under the scheme of the Act, a Development plan sanctioned by the State Government prior to the commencement of the Act, shall be deemed to be the final Development plan and there can be minor modification in such Development plan by the State Government in exercise of power conferred under Section 37(2) of the Act. Sanction of draft Development plan is provided under Section 31(1) of the Act. 13. Bearing in mind the scheme of the Act, as aforesaid, we are of the opinion that the Development plan sanctioned by the State Government before commencement of the Act, has become final Development plan under the Act. The Development plan existing prior to the commencement of the Act shows that the area in question was reserved for playground which was modified to school and cultural society in exercise of power under Section 37(2) of the Act and earmarked for the school and cultural centre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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