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Date : 15/12/2022

(2022) 12 BOM CK 0049

In the Bombay High Court
Case No : Writ Petition No.2591 Of 2007

Purshotam Vishandas Raheja APPELLANT

Vs
State Of Maharashtra And Others RESPONDENT

Date of Decision : 09-12-2022

Acts Referred:
Constitution Of India, 1950 — Article 142, 226
Maharashtra Regional And Town Planning Act, 1966 — Section 126, 126(i)(c),
126(2), 126(2)(4), 126(4), 127, 127(2)
Land Acquisition Act, 1894 — Section 6
Right To Fair Compensation And Transparency In Land Acquisition, Rehabilitation
And Resettlement Act, 2013 — Section 19
Citation : (2022) 12 BOM CK 0049
Hon'ble Judges : R.D. Dhanuka, J;Kamal Khata, J
Bench : Division Bench
Advocate : Cyrus Ardeshir, Atul Desai, Bhushan Deshmukhm, Chaitanya
Bhandarkar, Pranav Monani, Kanga, P.H. Kantharia, A.Y. Sakhare, Vandana
Mahadik, Pooja Yadav, Oorja Dhond, S.K. Sonawane
Final Decision : Allowed

Judgement
R.D.Dhanuka, J
1. By this petition filed under Article 226 of the Constitution of India, the petitioner
seeks a writ of mandamus against the respondents to forthwith withdraw the
acquisition proceedings initiated by Notification dated 22nd July 2004 in respect of
the petitioner’s land and to forthwith allow the petitioner to develop the petitioner’s
land on the basis of lapse of reservation.
2. The petitioner also prays for a declaration that on the basis of the purchase
notice issued by the petitioner on 12th May 2003, the respondents have not
acquired the land of the petitioner or taken steps for its acquisition by issuing a
declaration under Section 126 of the Maharashtra Regional and Town Planning Act,
1966 (for short “the MRTP Act”) read with Section 6 of the Land Acquisition Act,
1894 within six months from the date of service of purchase notice and thus the
reservation of the writ land stands lapsed.
3. The petitioner also prays for a writ of certiorari for quashing and setting aside
the Notification dated 22nd July 2004 issued by the respondents under Section 126
of the MRTP Act read with Section 6 of the Land Acquisition Act. Some of the
relevant facts for the purpose of deciding this petition are as under :-
4. The petitioner owns a plot of land bearing C.S. No.90 of Dadar Naigaon Division,
situated at Dadasaheb Phalke Road, Dadar, Mumbai - 400 014. The petitioner had
acquired the said plot of land (for short “the writ property”) under a registered
consent decree passed by this Court on 9th February 1987 in Suit No.1593 of 1981.
It is the case of the petitioner that the entire development plan for ‘F’ South Ward
came into force with effect from 11th October 1992. The whole development plan
except the excluded portions was sanctioned on 19th December 1991 and came
into force w.e.f. 30th January 1992. The plan for the excluded portion of the
development plan was sanctioned on 3rd June 1992 and came into force with effect
from 11th October 1992.
5. The plot of land of the petitioner admeasures 5061.91 sq.mtrs. out of which
63.64 sq.mtrs. had been acquired for road widening and 1993.59 sq.mtrs. of the
writ property is designated/ reserved for playground in the development plan. 10
years’ period expired on 10th October 2002 from the sanctioning of the
development plan.
6. The petitioner issued a purchase notice under Section 127 of the MRTP Act on
12th May 2003 to the Municipal Corporation to acquire the writ property or to take
steps for its acquisition within six months from the date of service of the purchase
notice.
7. The petitioner worked out the computation of the compensation as
Rs.9,20,42,891/-. It is the case of the petitioner that on 27th June 2003, the
Municipal Commissioner addressed a letter to the Municipal
Corporation/Improvement Committee recommending the acquisition of part of the
writ property pursuant to the purchase notice issued on 12th May 2003. On 19th
August 2003, a resolution was passed by the Improvement Committee approving
the acquisition proposal of the writ property at a cost of Rs.8.51 crores. On 29th
August 2003, the Municipal Corporation passed a resolution to acquire part of the
writ property pursuant to the purchase notice given by the petitioner. On 1st
November 2003, the Chief Engineer (Dev. Plan) of the Municipal Corporation sent a
proposal/application to the respondent no.2 for acquisition of the writ property to
the State Government.
8. It is the case of the petitioner that he did not know at the relevant time, either
about the letter dated 1st November 2003 addressed by the Chief Engineer of the
Municipal Corporation or about the resolution dated 29th August 2003 passed by
the Municipal Corporation. The petitioner was hopeful of getting the vacant
possession. However, he did not get the vacant possession and therefore on 10th
November 2003 addressed a letter to the Municipal Corporation as well as the
State Government intimating that the purchase notice dated 12th May 2003 be
treated as withdrawn. The petitioner received a reply from the Municipal
Corporation by a letter dated 23rd September 2004 to the letter dated 10th
November 2003.
9. It is the case of the petitioner that the Municipal Commissioner informed that
the Municipal Corporation had resolved to acquire the writ property which was the
subject matter of the purchase notice and had already made an application to the
State Government on 1st November 2003 to initiate acquisition proceedings. In the
said reply dated 23rd September 2004, it was stated that there was no provision of
withdrawal of the said purchase notice.
10. On 22nd July 2004, the State Government issued a declaration under Section
126 of the MRTP Act read with Section 6 of the Land Acquisition Act seeking to
acquire part of the petitioner’s land bearing Cadastral Survey No.90 (Part),
admeasuring 1993.59 sq. mtrs.
On 11th December 2004, the petitioner addressed a letter pointing out that the
proposal submitted by the Chief Engineer to the State Government was not in
conformity with the Government Resolution dated 14th June 2001 which laid down
the guidelines for acquisition under the MRTP Act and the same required the
Acquiring Body to deposit 2/3rd of the estimated compensation which was not done
by the Municipal Corporation and thus, there was no valid acquisition proposal. The
petitioner sought a declaration that the writ property be treated as released from
the reservation.
11. It is the case of the petitioner that on 7th September 2007, the petitioner made
two applications to the respondents under the provisions of Right to Information
Act, 2005 seeking copies of the acquisition proposal submitted by the Municipal
Corporation to the State Government as well as a copy of the Municipal
Corporation’s resolution said to have been passed on 29th August 2003. The
petitioner received replies to the said two applications dated 7th September 2007.
The petitioner has now learnt about the events which transpired from the date of
receipt of the purchase notice till the issuance of the declaration under Section 126
of the MRTP Act in respect of the writ property for the first time.
12. On 23rd November 2007, the petitioner filed this writ petition. On 14th August
2008, this writ petition was admitted. It is the case of the petitioner that Writ
Petition Nos.307 of 2008, 1069 of 2007 and 2108 of 2007 were filed on similar facts
in this Court and have identical points of law. On 28th February 2008, this Court
passed an order in Writ Petition No.307 of 2008 to the effect that issues raised in
Writ Petition Nos.307 of 2008, 2108 of 2007 and 2591 of 2007 were identical.
On 13th March 2008, this Court passed an order directing the present Writ Petition
and Writ Petition No.307 of 2008 to be listed with all the cases which involved the
interpretation of Section 127 of the MRTP Act.
13. On 9th April 2008, all the Writ Petitions involving the interpretation of Section
127 were taken up for hearing and were disposed off finally by a judgment dated
12th June 2008. This Writ Petition however, was not listed on board along with the
other petitions on 9th April 2008 and thus could not be disposed off.
14. On 12th June 2008, Writ Petition Nos.1067 of 2007 and 2108 of 2007 were
disposed off by a common judgment. It is the case of the petitioner that the facts
involved in these petitions are identical to the facts of this petition. On 12th June
2008, Writ Petition Nos.307 of 2008 and 1080 of 2007 were also disposed off in
view of the judgment dated 9th April 2008. On 12th March 2010, the Special Leave
Petition (C) bearing No.8541 of 2010 filed by the Municipal Corporation came to be
dismissed. On 20th July 2010, the Review Petition bearing No.1103 of 2010 filed by
the Municipal Corporation also came to be dismissed.
15. During the pendency of the petition, some time in the year 2015, a draft
Development Plan 2034 was published. It is the case of the petitioner that the writ
property was not shown under any reservation. In the year 2016, the Draft
Development Plan was once again published inviting objection. The part of the writ
property was shown as being reserved for playground in the said Draft
Development Plan. On 5th July 2016, the petitioner had raised an objection to the
said reservation on the writ property. On 23rd July 2016, the petitioner addressed
a letter to the Municipal Corporation contending that the earlier reservation had
already lapsed six months after the purchase notice dated 12th May 2003 came to
be issued and thus the writ property could not have been re- reserved under the
New Development Plan.
16. By a letter dated 25th July 2016 to the Chief Engineer (DP) of the Municipal
Corporation, the petitioner contended that the reservation of the writ property had
lapsed. On 5th October 2017, the petitioner recorded that despite of the interim
reliefs granted in this petition on 14th August 2008, some of the officers of the
Corporation entered the writ property for measurements. On 8th May 2018, the
State Government sanctioned the Draft Development Plan, 2034 excluding some
modifications. The objections and suggestions were invited in respect of substantial
modifications which were proposed by the State Government in the Draft
Development Plan, 2034.
17. In the said Development Plan, 2034, part of the writ property admeasuring
1993.59 sq. mtrs. had been reserved for garden/park. On 1st June 2018, a letter
was addressed by the petitioner to the respondents informing them about the
interim reliefs granted by this Court in this petition and the fact that the matter
was sub-judice. On 28th April 2019, the petitioner issued a legal notice to the
Municipal Corporation regarding the re-reservation of the writ property. On 25th
April 2019, the Municipal Corporation informed the petitioner that the request for
deletion of the reservation on the writ property cannot be honoured as the matter
was sub-judice. On 26th June 2019, the petitioner filed a Chamber Summons. The
said chamber summons is still pending.
18. Mr.Ardeshir, learned counsel for the petitioner invited our attention to various
documents annexed to the petition and also to the affidavit-in-reply filed by the
parties. Learned counsel submitted that the petitioner had already issued a
purchase notice to the Principal Secretary, Urban Development Department,
Municipal Corporation and the Municipal Commissioner on 12th May 2003. The so
called steps were taken by the Municipal Commissioner on 27th June 2003 by
passing a Resolution of the Improvement Committee on 19th August 2003 and the
Resolution passed by the Municipal Corporation to acquire the writ property on
29th August 2003 and the application made by the Chief Engineer, Development
Plan to the State Government for acquisition of the writ property were not the
steps contemplated under Sections 126 and 127 of the MRTP Act.
19. It is submitted by the learned counsel that admittedly the Notification under
Section 6 along with a Declaration under Section 126(4) read with Section 126(2)
of the MRTP Act and Section 6 of the Land Acquisition Act, 1894 was issued only on
22nd July 2004 i.e. after expiry of the period of six months from the date of service
of purchase notice dated 12th May 2003 and thus the reservation of the writ
property as reserved on 11th October 1992 had lapsed.
20. It is submitted by the learned counsel that though at one stage, the petitioner
was under the legal advise and had addressed a letter dated 10th November 2003
to withdraw the said purchase notice in view of the petitioner not having received
vacant possession of some of the structures. He submitted that in any event, the
Municipal Corporation vide reply dated 23rd September 2004 i.e. after more than
10 months of the notice dated 10th November 2003 opposed the said letter of the
petitioner to withdraw the said purchase notice on the ground that there was no
provision for withdrawal of such purchase notice. He submitted that on the
contrary, by the said letter dated 11th December 2004, the Municipal Corporation
had relied upon various steps taken by the Municipal Corporation as per the
provisions of Section 126(i)(c) and had contended that the respondents having
taken steps to acquire the said land in furtherance of the purchase notice issued by
the petitioner, the petitioner shall hand over the possession of the writ land
reserved for playground in lieu of TDR.
21. Learned counsel for the petitioner invited our attention to the affidavit-in-reply
filed by the Municipal Corporation on 8th February 2008 i.e. much after the
judgment of the Supreme Court in case of Girnar Traders Vs. State of Maharashtra,
2007 (7) SCC 555 came to be delivered by the Supreme Court interpreting Section
127 of the MRTP Act. He submitted that in the said affidavit dated 8th February
2008, it was contended by the Municipal Corporation itself that pursuant to the
purchase notice issued by the petitioner, the sanction of the Improvement
Committee to acquire the land reserved for playground was obtained on
19th August 2003. Various steps were taken according to the Municipal Corporation
in furtherance of the said purchase notice. In the said affidavit-in-reply, the
Municipal Corporation also strongly placed reliance on the letter dated 23rd
September 2004 contending that the purchase notice could not be withdrawn by
the petitioner and if the petitioner was willing to hand over the vacant possession
of the writ property in lieu of TDR, necessary action would be initiated accordingly.
22. Learned counsel also invited our attention to the averments made in paragraph
5 (c) and (d) of the affidavit-in-reply filed by the Municipal Corporation on 8th
February 2008 and submitted that it is the case of the Municipal Corporation itself
that the Notification under Section 6 read with Section 126 (2) (4) of the MRTP Act
was issued by the Municipal Corporation pursuant to the purchase notice thereby
appointing the Special Land Acquisition Officer to perform the functions in respect
of the acquisition proceedings. The Municipal Corporation had already shown
eagerness to acquire the said land by completing the formalities in its purview and
by promptly depositing the 2/3rd amount of the land value amount to Rs.5.23
crores so as to make the play ground available to common public in the vicinity at
earliest. He submitted that it is further contended in the said affidavit that as the
acquisition proceedings have already reached a considerable stage, this case does
not fall within the ambit of the order of the Supreme Court in case of Girnar
Traders (supra).
23. Learned counsel for the petitioner invited our attention to the further affidavit
filed by his client on 3rd June 2008 relying upon the judgment of the Supreme
Court in case of Girnar Traders (supra). He submitted that the petitioner had
clarified in the said affidavit as to what circumstances, the petitioner had addressed
a letter dated 10th November 2003 thereby attempting to withdraw the purchase
notice issued on 12th May 2003.
24. Learned counsel for the petitioner also invited our attention to the affidavit-in-
reply dated 4th October 2022 filed by the Municipal Corporation and submitted that
the stand now taken by the Municipal Corporation, after more than 18 years of the
affidavit already filed, is contrary to the stand taken in the earlier affidavit dated
8th February 2008. He submitted that the Corporation cannot be allowed to take a
plea that the purchase notice having been withdrawn by the petitioner, the
Corporation was entitled to proceed with the acquisition proceedings on its own
independently.
25. Learned counsel for the petitioner placed reliance on the judgment of the
Supreme Court in case of Girnar Traders (supra), judgment of this Court in case of
Trilok Singh Pahlajsingh Rajpal & Anr. Vs. Municipal Corporation for Gr. Mumbai &
Ors., 2022 SCC OnLine Bom 2347, judgment of this Court pronounced on 18th
October 2022 in case of Dr.Ramrao Sopanrao Gondkar & Anr.Vs. Nashik Municipal
Corporation for Gr. Mumbai and Ors. in Writ Petition No.6331 of 2008 and in
particular paragraphs 6, 8, 11, 13 and 14 thereof and the judgment of this Court
delivered on 20th October 2022 in case of Arvind Kashinath Dadarkar & Ors. Vs.
Municipal Corporation of Gr. Mumbai & Ors. in Writ Petition No.411 of 2013.
26. It is submitted by the learned counsel that the other writ petitions referred to
aforesaid admittedly had identical facts and points involved. This Court had
observed that all the matters were identical. He submitted that this writ petition
however, did not appear on board when the other batch of the petitions came to be
allowed by this Court. He submitted that as the judgment which is passed by this
Court in Writ Petition No.1067 of 2007 in case of Suriya Akbarali Jetha & Ors. Vs.
Mumbai Municipal Corporation of Gr. Mumbai and the judgment of this Court
delivered on 12th June 2008 in case of Shardaben Jashbhai Patel & Anr. Vs. State
of Maharashtra & Ors. in Writ Petition No.1080 of 2007 is followed by this Court,
those judgments were applicable to the facts of this case. He submitted that the
Special Leave Petition against the judgment of this Court is already dismissed by
the Supreme Court.
27. Mr.Sakhare, learned senior counsel for the Municipal Corporation, on the other
hand, invited our attention to some of the correspondence referred to the aforesaid
and submitted that though the petitioner had issued a purchase notice on 12th May
2003, the fact remains that before the expiry of six months from the date of
issuance of the said notice, the petitioner vide letter dated 10th November 2003
had withdrawn the said purchase notice. He submitted that as a result of the
withdrawal of the said purchase notice before expiry of the period of six months
granted to the Municipal Corporation to take steps, the said purchase notice ceased
to have effect.
28. It is submitted that the purchase notice was withdrawn by the petitioner
unconditionally and since the date of withdrawal is not in existence, the Municipal
Corporation could either act upon the said purchase notice or to ignore it in these
circumstances. The purchase notice had already become effective from the date of
service of the said purchase notice. There is no provision under the MRTP Act
permitting the owner of the land to withdraw the purchase notice once having been
served to the planning authority. The Municipal Corporation was thus not required
to take any steps within a period of six months from the date of service of the said
purchase notice.
29. Learned senior counsel for the Municipal Corporation relied upon the averments
made by the petitioner in the writ petition and submitted that the petitioner has
not explained the delay in filing the petition. The petitioner cannot be allowed to
explain the delay for the first time in the affidavit-in-rejoinder.
30. It is submitted that under DCPR, 2034, the writ property is re-reserved for
garden purpose. He invited our attention to the prayers of the writ petition and
submitted that there is no challenge to the re- reservation dated 8th May 2018.
Though the petitioner has filed a chamber summons inter alia praying for an
amendment, the amendment has not been permitted till date by this Court in the
said chamber summons. Learned senior counsel placed reliance on the judgment of
the Supreme Court in case of Municipal Corporation Vs. Hiraman S. Deorukhar &
Ors., (2019) 14 SCC 411 and the judgment of this Court in case of Satish Prakash
Rohra & Anr. Vs. Municipal Corporation of Gr. Mumbai & Ors., 2018 SCC OnLine
Bom 2608 in support of the submission that the Supreme Court and this Court have
permitted the acquisition of the land even after holding that the reservation had
lapsed in the larger public interest.
31. It is submitted that the direction issued by the Supreme Court and this Court in
these petitions also considered public interest. It is submitted that even if the
understanding of the Municipal Corporation was erroneous and contrary to law, the
same would not be binding upon the Municipal Corporation. The Municipal
Corporation is entitled to adopt steps for the acquisition of the land even if there
was no purchase notice under Section 127 of the MRTP Act. The Court has to
consider the effect of the petitioner having withdrawn the purchase notice and not
the conduct of the respondents. There is no bar from acquiring the land of the
petitioner. The reply of the Municipal Corporation that the purchase notice cannot
be withdrawn would not revive the purchase notice issued by the petitioner.
32. In so far as the other judgments relied upon by the petitioner in case of Suriya
Akbarali Jetha & Ors. (supra) and in case of Shardaben Jashbhai Patel & Anr.
(supra) along with other companion matters, it is submitted the in those batch of
the petitions, there was no withdrawal of the purchase notice by the petitioner
therein and thus the judgments in those matters are clearly distinguishable on the
facts of this case.
33. Mr.Ardeshir, learned counsel for the petitioner in his rejoinder arguments
invited our attention to the averments made by the learned counsel in the two
affidavits filed in this writ petition and submitted that none of the steps were taken
under Section 127 and Section 126 of the MRTP Act. All such steps were admittedly
taken in furtherance of the purchase notice issued by the petitioner not only before
the expiry of the period of six months but even thereafter. The Municipal
Corporation thus cannot be allowed to now contend that the Municipal Corporation
has initiated the acquisition proceedings independently and not in furtherance of
the purchase notice issued by the petitioner.
34. It is submitted that the respondents have contended in their affidavit that their
case does not fall within the ambit of the judgment of the Supreme Court in case of
Girnar Traders (supra). In fact, the Municipal Corporation proceeded on the
premise that the letter of the petitioner seeking to withdraw the purchase notice
did not have any effect of any nature whatsoever. Consequently, the judgment of
this Court in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra) clearly applies
to the facts of this case.
REASONS AND CONCLUSIONS :-
35. The questions that arise for the consideration of this Court are (a) whether the
purchase notice issued under section 127 of the MRTP Act having been issued by
the owner of the land and received by the Planning Authority can be withdrawn in
absence of any provisions approving such withdrawal under the provisions of MRTP
Act or not ?
(b) What is the effect of the Planning Authority refusing to accept the withdrawal of
the purchase notice issued by the owner of the land ?
36. It is not in dispute that the land of the petitioner was reserved under the
development plan for playground on 11th October, 1992. The 10 years period
expired on 10th October, 2002. On 12th May, 2003, the petitioner had issued a
purchase notice under section 127 to the Principal Secretary of Development of the
Municipal Corporation and Commissioner. Before expiry of six months from the
date of receipt of the said notice, the Municipal Commissioner had addressed a
letter to the Improvement Committee on 27th June 2003 recommending the
acquisition of the plot of the petitioner.
37. The Improvement Committee thereafter passed a resolution on 19th August,
2003 approving acquisition of the proposal of the Commissioner at a cost of
Rs.8.51 crores in respect of the writ property.
On 29th August, 2003, the Municipal Corporation passed a resolution to acquire the
plot of the petitioner pursuant to the said purchase notice dated 12th May, 2003. It
is not in dispute that on 1st November, 2003, the Chief Engineer, Development
Plan made an application to the State Government for acquiring the writ property.
In our view, none of these steps taken by the Municipal Corporation would amount
to steps for the acquisition of the writ property as contemplated under section 127
of the MRTP Act.
38. A perusal of the letter dated 23rd September, 2004 in response to the letter
from the petitioner dated 10th November, 2003 seeking withdrawal of the
purchase notice indicates that the Municipal Corporation had taken a stand that
there is no provision of withdrawal of purchase notice and that various steps had
already been taken by the Municipal Corporation to acquire the writ property.
39. A perusal of the record clearly indicates that both the parties thereafter
proceeded on the premise that the purchase notice was not withdrawn by the
petitioner. The Municipal Corporation had taken subsequent steps which were not
contemplated as a step for acquisition under section 127 of the MRTP Act but they
proceeded on the premise that the purchase notice was valid and was subsisting on
the date of the said letter dated 23rd September, 2004 and even thereafter.
Admittedly a declaration under section 6 of the Land Acquisition Act came to be
issued by the State Government to acquire the writ property of the petitioner only
on 22nd July, 2004.
40. In our view, only the said declaration under section 6 of the Land Acquisition
Act within the prescribed period after the purchase notice would amount to taking
steps for the acquisition of the writ property and not any other steps taken prior
thereto. The said declaration under section 6 and the subsequent correspondence
placed on record by the parties would also clearly indicate that no steps were taken
by the planning authority in response to the purchase notice issued by the
petitioner till the expiry of six months (being the prescribed period at the relevant
time) of the receipt of the said purchase notice.
41. Supreme Court in case of Girnar Traders (supra) and thereafter in a catena of
decisions has taken a view that the notification under section 6 of the Land
Acquisition Act amounts to taking steps in acquisition under section 127 of the
MRTP Act and in the absence of any such notification, no other steps would amount
to steps and consequently the reservation in respect of such property would stand
lapsed as contemplated under section 127 of the MRTP Act.
42. This Court in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra) after
adverting to the judgment of Supreme Court in case of Girnar Traders (supra) and
catena of decisions including the judgment in case of Godrej and Boyce
Manufacturing Company Limited V/s State of Maharashtra and others, (2015) 11
SCC 554 has held that the so called various steps taken by the planning authority
which were not the steps as contemplated under the provisions of sections 126 and
127 of the MRTP Act and accordingly declared the reservation as lapsed. This Court
in the said judgment held that unless and until the section 6 declaration (Land
Acquisition Act, 1894) / section 19 declaration (The Right To Fair Compensation and
Transparency In Land Acquisition, Rehabilitation and Resettlement Act, 2013) is
issued, it cannot be said that the steps for acquisition have commenced. The
principles laid down by the Supreme Court in case of Girnar Traders (supra) and in
the catena of decisions which are followed by this Court in case of Trilok Singh
Pahlajsingh Rajpal & Anr. (supra) would apply to the facts of this case.
43. In the said judgment in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra)
this Court also followed the principles laid down by this Court in case of Anil
Dattatraya Girme and others versus State of Maharashtra and others, (2020) 3
Bom CR 353 in which it was held that the land once de-reserved from the revised
development plan by operation of law cannot be reserved again, in the second
revised plan with some variation in purpose. This Court also adverted to the
judgment in case of Bombay Salesian Society, through Secretary, Fr. Manuel
Murzullo versus State of Maharashtra & Ors, (2020) 1 Bom CR 235 in which it was
held that if no steps are taken within the time prescribed to acquire the land which
is the subject matter of the notice, the reservation, allotment or designation shall
be deemed to have lapsed and the land should be deemed to be released from
reservation, allotment or designation and shall become available to the owner for
the purpose of development.
44. This Court also distinguished the judgment delivered by the Supreme Court in
case of Hiraman Sitaram Deorukhkar on 24th August, 2017 in Civil Appeal
No.11258 of 2017 which is relied upon by Mr.Sakhare, learned senior counsel for
the Municipal Corporation and held that the directions issued by the Supreme Court
in the said judgment were in exercise of powers under Article 142 of the
Constitution of India and were not a precedent.
45. Since the Municipal Corporation rightly proceeded on the premise that there
was no provision in the MRTP Act for the withdrawal of the purchase notice, the
principles laid down by the Supreme Court in case of Girnar Traders (supra) and
above referred judgment would squarely apply to the facts of this case. We are
bound by the principles of law laid down by the Supreme Court in the said
judgment.
46. Insofar as the issue of delay raised by Mr.Sakhare, learned senior counsel for
the Municipal Corporation is concerned, in our view there is no unexplained delay
in the facts of this case. Be that as it may, such delay is considered by this Court in
case of Apurva Natvar Parikh & Co. Private Limited versus State of Maharashtra &
Ors. Writ Petition No. 203 of 2014. The principles laid down by this Court in the said
judgment would apply to the facts of this case. This Court held that whether there
is a gross delay or not depends on the facts and circumstances of each case and,
therefore, each case will have to be examined on the facts because there cannot
be a straight-jacket formula for deciding whether the Court should exercise its
discretion or not.
47. The Division Bench of this Court in case of Dr.Ramrao Sopanrao Gondkar &
Anr.(supra) after adverting to the judgment of Supreme Court in case of Girnar
Traders (supra) and several other judgments has held that the reservation of the
writ land stands lapsed upon the expiry of the prescribed period from the date of
service of the purchase notice under section 127 of the MRTP Act if no steps
contemplated under section 127 are taken. This Court also adverted to the
judgment of this Court in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra).
The said judgment accordingly held that the mere sending of a draft award to the
commissioner cannot be construed as steps taken to prevent or revive lapsing. In
the facts of this case, since time to take steps for acquiring the land had already
expired and reservation had already stood lapsed, such reservation cannot be
revived by issuing a notification under section 6 of the Land Acquisition Act or by
re-reserving the same reserved land for the same purpose or different purpose,
after the reservation has lapsed. The principles of law laid down by this Court in
case of Dr.Ramrao Sopanrao Gondkar & Anr.(supra) would apply to the facts of
this case.
48. This Court in case of Arvind Kashinath Dadarkar & Ors. (supra) also considered
the judgment of Supreme Court in case of Godrej and Boyce Manufacturing
Company Limited vs. State of Maharashtra in Civil Appeal No. 1746 of 2007 with
connected matters and other judgments and rejected the plea raised by the
Municipal Corporation about delay on the part of the petitioner to claim TDR on the
basis of the interpretation of the law by judgment of Supreme Court in case of
Godrej and Boyce Manufacturing Company Limited (supra). The Supreme Court in
case of Godrej and Boyce Manufacturing Company Limited (supra) had held that
the approach of a person/party immediately and/or after coming to know about
the judgment of the Supreme Court cannot be stated to be guilty of any laches to
claim/reliefs so prayed and/or is barred by the limitation. The principles laid down
by this Court in case of Arvind Kashinath Dadarkar & Ors. (supra) apply to the facts
of this case. We are respectfully bound by the said judgment. We do not propose to
take any different view in this matter.
49. In so far as the judgment of the Supreme Court in case of Municipal
Corporation Vs. Hiraman S. Deorukhar (supra) relied upon by Mr.Sakhare, learned
senior counsel for the Municipal Corporation in support of the submission that the
Supreme Court has permitted the acquisition of land even after holding that the
said reservation is lapsed in larger public interest is concerned, on perusal of the
said judgment, it is clear that Supreme Court has passed the said order while
exercising its powers under Article 142 of the Constitution of India. The said
judgment thus cannot be relied upon by the respondents as a precedent in the facts
of this case or otherwise. Similar view is also taken by this Court in the case of
Satish Prakash Rohra & Anr. Vs. Municipal Corporation of Gr. Mumbai & Ors.
(supra).
50. Division Bench of this Court in the case of Satish Prakash Rohra & Anr. Vs.
Municipal Corporation of Gr. Mumbai & Ors. (supra), clearly held that the Supreme
Court in case of Municipal Corporation Vs. Hiraman S. Deorukhar (supra) has
exercised its powers under Article 142 of the Constitution of India. This Court has
held that the steps taken for acquisition were not under Section 126 of the MRTP
Act. Hence, the reservation for garden had lapsed. The facts before this Court are
totally different. The said judgment in case of Satish Prakash Rohra & Anr. Vs.
Municipal Corporation of Gr. Mumbai & Ors. (supra) thus would not assist the case
of the petitioner and is clearly
51. In so far as the judgment of this Court in case of Suriya Akbarali Jetha & Ors.
Vs. Mumbai Municipal Corporation of Gr. Mumbai (supra) and the judgment of this
Court in case of Shardaben Jashbhai Patel & Anr. Vs. State of Maharashtra & Ors.
(supra) relied upon by Mr.Ardeshir, the learned counsel for the petitioner are
concerned, it is correct that in those two matters, there were no withdrawal of
purchase notice by the petitioner therein. However, since this Court is of the view
that both the parties had proceeded on the premise that the purchase notice
continued to be valid even after the withdrawal of the said letter by the petitioner,
these two judgments relied upon by the learned counsel for the petitioner would
apply to the facts of this case. In our view, the petitioner has thus made out a case
for reliefs as prayed.
52. We accordingly pass the following order :-
(i) Writ petition is allowed in terms of prayer clauses (a) to (c).
(ii) The respondent no.1 shall issue a notification under Section 127(2) within six
months from today declaring that the reservation in respect of the writ property
stands lapsed and that the said writ property would be available to the petitioner
for the purpose of development as prescribed in law.
(iii) Rule is made absolute in aforesaid terms. No order as to costs. Parties to act
on the authenticated copy of this order.