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Bombay High CourtIndian Cases

Ranjan Manubhai Doctor And Ors. vs State Of Maharashtra And Ors. on 21 July 2004

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Bombay High Court
Ranjan Manubhai Doctor And Ors. vs State Of Maharashtra And Ors. on 21 July, 2004
Equivalent citations: 2005(2)BOMCR923, 2005(1)MHLJ718, 2005 A I H C 147, (2005) 1 LACC 308, (2005) 1 MAH LJ 718, (2005) 2 BOM CR 923
Author: F.I. Rebello
Bench: F.I. Rebello, S.R. Sathe
JUDGMENT

F.I. Rebello, J.

1. The petitioners have filed the present petition as trustees of Seth Bhaidas Sakhidas Charity Trust. It is the case of the petitioners that they are the owners of the property bearing C.T.S. No. 2300 and 2304 of the Bhuleshwar Division and as such are the holders of 3042 sq. meters in C. S. No. 2300 of the Bhuleshwar Division and 134.62 sq. meters in C. S. No. 2304 of the Bhuleshwar Division. By Notification dated 3rd January, 1967 the petitioners properties were notified as reserved for public purpose for recreation ground except for a small strip facing the then named Thakurdwar Road. The development plan for Greater Bombay has been adopted under the Maharashtra Regional and Town Planning Act, 1966, hereinafter referred to as the MRTP Act. It is averred that a legal notice dated 28th March, 1989 was addressed by their Advocate and served on the Bombay Municipal Corporation and Municipal Commissioner under Section 127 of the MRTP Act for acquisition of the aforesaid properties. In response to that on behalf of the respondent Nos. 2 and 3 a letter was addressed to the petitioner’s Advocate that with the purchase notice documents set out therein were not forwarded. By reply dated 5th June, 1989 the respondent Nos. 2 and 3 were informed that it was not necessary for the petitioners to submit the documents as called for and if action was not taken petitioner would take steps to get property relieved from the reservation.

It is the contention of the petitioners that the respondent Nos. 2 and 3 in spite of 22 years having elapsed after the sanctioned plan had failed to acquire the land or to take any steps for acquisition. The respondents on the contrary under the draft revised plan had now reserved the property for Municipal Market except for a narrow strip. It is submitted that as the respondents failed to take action pursuant to the notice dated 28th March, 1989 the respondents were duty bound to release the petitioners property and having failed to do so had abdicated their statutory obligations and duties imposed upon them. It is pointed out that the actions and/or omissions of the respondents are illegal and they are in contravention of Articles 14, 19, 21 and 300-A of the Constitution. Reliance is placed on the judgment of the Apex Court in the case of Municipal Corporation Bombay v. Dr. Hakimwadi Tenants Association and Ors., 1988 Mh.L.J. page 1. The petitioners, therefore, prayed for a writ of certiorari to quash and set aside the Notification dated 3rd January, 1967 and for a further writ of mandamus to direct the respondent Nos. 2 and 3 to release the properties from reservation.

The petition came to be admitted on 15th April, 1991 and status quo was ordered to be maintained.

2. On behalf of the respondent Nos. 2 and 3 an affidavit has been filed by Shri Suhas Vishwanath Deshpande. It is set out therein that the 1st respondent in the revised development plan has dereserved and/or deleted the reservation for Recreation Ground on the Northern and Western part of the suit plot subject to the condition that the Southern part admeasuring about 2550 sq. mtrs., shall be developed for Recreation Ground by the petitioners and the said part shall be shown reserved for Recreation Ground as shown in the Revised Development Plan. The suit plots bearing C. S. No. 2300 and 2304 of Bhuleshwar Division were admeasuring 3176.62 sq.mtrs. These plots along with adjoining lands were reserved for recreation ground in the draft development plan published on 26th May, 1983. The petitioners had approached the 2nd respondent with a request to delete the property from reservation, when the draft development plan was published by respondent No. 2 for inviting suggestions/objections under Section 26 of the MRTP Act. On considering the petitioners contention the planning authority appointed under Section 28 of the MRTP Act decided to delete the reservation partly from the petitioner’s property. The said draft revised development plan was submitted by the respondent No. 2 for sanction by respondent No. 1 and consequently reservation No. 110 for Recreation Ground has been lifted from part of the petitioner’s property. The revised plan was sanctioned on 28th August, 1990. Adverting to the notice served under Section 127 on 28th March, 1989 it is set out that it was served when the draft revised development plan was already published and in the draft revised plan the reservation had been continued. As at that time the draft revised plan was not sanctioned the notice under Section 127 would not be applicable to the reservation proposed in the draft revised development plan.

3. At the hearing of this petition learned Counsel have drawn attention to the provisions of the Act as also various judgments of this Court as also of the Apex Court. They will be adverted to the extent they are necessary for the purpose of deciding the controversy. It is contended that once the land was reserved for a public purpose and the owners serve the notice as required under V Section 127, and if steps are not taken by the planning authority to acquire the land within the time set out, the reservation lapses and it is not open to the authorities including the Planning Authority to once again reserve the property for a public purpose in the revised plan.

For this purpose reliance has been placed on the judgment of the Apex Court in the case of Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. and Ors., as also the judgment of a Division Bench of this Court in the case of Baburao Dhondiba Salokhe v. Kolhapur Municipal Corporation, Kolhapur and Anr., . Reliance is also placed in the judgment of the Apex Court in the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association and Ors., and unreported judgment of a Single Judge this Court in the case of Rajendra Kumar M. Gandhi and Ors. v. The Municipal Corporation of Greater Bombay and Ors., in Writ Petition No. 641 of 1996 decided on 20th and 23rd September, 1996.

On the other hand on behalf of the respondent Nos. 2 and 3 their learned Counsel submits that once there is a power under Section 38 for revision of the sanctioned plan, the mere fact that earlier no action is taken in terms of the sanctioned plan would not prohibit the respondents from revising the plan, in the meantime the petitioners had not applied for development of the property subsequent to the notice being served under Section 127 of the MRTP Act. There is power in the Planning Authority to revise the plan. Reliance has been placed on an unreported judgment of this Court in the case of Robert Joseph Castelline and Anr. v. The State of Maharashtra and Anr. in Writ Petition No. 3664 of 1989 decided on September 15, 1994 as also the judgment of another Division Bench of this Court in the case of Prakash Rewadmal Gupta v. Lonavala Municipal Council and Ors., in Writ Petition No. 2945 of 2001 decided on 9th November, 2001-2002 Vol. 104(1) Bom.L.R. 626. It is submitted that the judgment of the Apex Court in the case of Bhavnagar University (supra) will have to be distinguished considering that it was under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 and the issue before the Apex Court in the said judgment was whether there was an automatic revision on the expiry of 10 years. Learned Counsel, submitted that such an issue is not in issue in the present case, as notice is required to be served on expiry of a period of ten years from the notification of the sanctioned plan, whereas the planning authority can proceed to issue fresh notification for revision of development plan after expiry of a period of twenty years from the notification of the sanctioned plan. Referring to the judgment of the Baburao Dhondiba Salokhe, it is pointed out that in that case after the notice was served for dereservation under Section 127 the petitioner had applied for development of the property before the revised plan was notified. As a right had been accrued, though subsequently there was a revised draft plan the Division Bench of this Court held that subsequent revision will be of no consequence. The Division Bench also did not take notice of the fact that the section providing for revision of plan has not been challenged. It is, therefore, submitted that the said judgment also is distinguishable.

4. It is not necessary to refer to the various sections dealing with the preparation of development plan and the plan coming into force except for sections namely 38 and 127. Suffice it to say that once the development plan has been sanctioned that plan would be in force atleast for a period of 20 years from the date of its notification. Section 38 requires that atleast once in twenty years from the date on which the Development Plan has come into operation, and where a Development Plan is sanctioned in parts, then at least once in twenty years from the date on which the last part has come into operation, a Planning Authority may and shall at any time when so directed by the State Government, revise the Development Plan either wholly, or the parts separately after carrying out, if necessary, a fresh survey and preparing an existing land use map of the area within its jurisdiction and the provisions of sections set out therein shall, so far as they can be made applicable, apply in respect of such revision of the Development Plan.

Under Section 127 if any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and within six months from the date of the service of such notice, if the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. In other words by operation of law the reservation would be deemed to be no longer operative and the person entitled to the land would be entitled to develop the land in terms of law.

5. On the facts of the present case what emerges is that the plan was notified sometime in the year 1967. The period of 10 years expired in 1977. The petitioners served notice on 28th March, 1989 i.e. after a period of 22 years and in the meantime a revised plan was in the offing under Section 38 of the MRTP Act. The petitioners themselves had filed objections as contemplated under the Act to the revised development plan pursuant to which a part of the reservation had been deleted and only a part of the reservation retained. This had been approved by the State Government. The position in law as it stands today is that no property can be developed when there is development plan in force, contrary to the development plan and in the case of a proposed revision the authority must take into consideration the proposals contained in the revised plan for the purpose of granting sanction for development. It is in that background that the contentions of the petitioners will have to be examined.

6. Having heard learned Counsel for the parties, the question is whether the issue stands concluded by the judgment of the Apex Court in the case of Bhavnagar University (supra) and whether the judgment of the Division Bench of this Court considering that it is under the provisions of the MRTP Act has concluded the issue insofar as another co-ordinate Bench of this Court is concerned. We may at once note that there is no challenge to the vires of Section 38 of the MRTP Act. Section 38 confers a power on the Planning Authority on the expiry of 20 years to revise the development plan and shall on direction by the State Government proceed to revise the development plan. In other words there is a power conferred on the planning authority to revise the development plan. It is in this context that we will consider the judgment of the Apex Court in Bhavnagar University (supra). An important aspect of the matter under the Gujarat Act is that after the plan is notified revision has also to be done on the period of ten years coming to an end. The notice to acquisition can only be served on the expiry of ten years. Under the Maharashtra Act the plan may be revised after twenty years and the period for the party to ask the Planning Authority to proceed to acquisition is ten years from the publication of the plan. These are material differences under the two Acts and it is in that context that the question formulated by the Apex Court in Bhavnagar University (supra) must be considered. The question as formulated for consideration by the Apex Court can be seen from paragraph 6 of that judgment and reads as under ;-

“6. The short question which arises for consideration in these matters is as to whether by reason of inaction on the part of the State and its authorities under the Town Planning Act to acquire the lands for a period of more than 10 years, in terms of the provisions of Land Acquisition Act, 1894 despite service of notice; the same stood dereserved/de- designated in view of issuance of draft revised plan under Section 21 thereof, the term of 10 years stood extended?”
On consideration of the provisions of the Gujarat Act the Apex Court was pleased to answer the issue by holding that after the period of 10 years as required under the Gujarat Act had expired and if the land had not been acquired in the manner contemplated merely because the draft revised plan was issued would not automatically extend the period of reservation. Considering the provisions of Section 21 of the Gujarat Act which was also a power to extend the revised plan the Apex Court noted that “Section 21 of the Act, in their opinion, does not and cannot mean that the substantive right conferred upon the owner of the land or the person interested therein shall be taken away and that it is not and cannot be the intention of the Legislature that which is given by one hand should be taken away by the other. This was in the context that the planning authority was bound to revise the plan on the expiry of ten years from the notification of the sanctioned draft plan and the notice to acquire could ordinarily be given on the expiry of period of ten years from the notification of the sanctioned plan. Thereafter the Apex Court noted that even if the reservation lapsed that would not mean that it was not open to the State to acquire the land. The Apex Court noted that despite statutory lapse of reservation of the land, the State is not denuded of its power of eminent domain under the general law namely, Land Acquisition Act in the event exigency arises thereafter. The Apex Court also noted the judgment in the case of K. L Gupta v. Bombay Municipal Corporation, which was under the provisions of the Bombay Town Planning Act. In that case the reservation as provided in the plan was challenged. All the challenges were negatived as can be seen from the judgment. One of the challenges raised was to the validity of Section 17 of that Act which also provided for preparation of revised plan. The Apex Court on the submission of the parties therein noted that the Court was not called upon to decide on the validity of that section. The validity of the section was not decided. The validity of Section 21 of the Gujarat Act was also not considered in the case of Bhavnagar University (supra). The Apex Court was only considering the issue in the context of the question framed for determination. That judgment considering the question framed and the provisions of the Maharashtra Act is, therefore, clearly distinguishable.

7. The only question then is whether in a case where the petitioner has not applied for development, in spite of deemed de-reservation by operation of law under Section 127 of the M.R.T.P. Act pursuant to service of notice, is the Planning Authority precluded from providing for the same or different reservation in the revised plan, if the land otherwise is still not developed or permission for development has not been applied for. In the exercise of its powers under Section 38 the Authority is required to carry out a fresh survey and preparing an existing land use map. It is not necessary for us to go into the scope and ambit and the purpose of laws providing for reservation as it has been succinctly set out in K. L. Gupta’s case (supra) as also in the judgment in Bhavnagar University (supra). We have noted that under the Gujarat Act the right has to be exercised on the failure to acquire the land within ten years and the plan has also to be revised after ten years. The position in the Maharashtra Act is different. The exercise to ask for acquisition on failure to acquire is within ten years after the plan being notified and the new plan can only be revised after twenty years. There is a gap of nearly 9 and half years for the owner of the property to exercise his right and if the owner exercises his right and if the authority does not proceed to acquire the land, then the reservation stood denotified and the property could be developed in a like manner as the adjacent property. Bearing these aspects in mind we shall consider whether the judgment of Baburao Dhondiba Salokhe (supra) concludes the issue insofar as this Co-ordinate Bench is concerned. On a consideration of the judgment in Baburao Dhondiba Salokhe (supra) it is clear that the facts of that case are distinguishable from the facts in the present case. In that case after notice was served on 8th August, 1991, on 28th January, 1992 the Competent Authority passed resolution to acquire the land and on 19th February, 1992 applied to the Collector. The second draft development plan was notified on 8th September, 1992 as required under Section 380. As the Competent Authority therein had taken no steps to acquire the land within six months, the petitioner submitted the lay out plan for development on 9th July, 1992 to the Commissioner of the Corporation. That application was rejected on the ground that on 8th September, 1992 the said land in the draft revised development plan of 1992 has been reserved for children’s play ground and for housing of the dishoused. In other words a right had accrued in the owner of the property after deemed dereservation, to get the property developed and the owner had submitted the plan. Even if subsequently the plan was revised the right which accrued in favour of such an owner could not be taken away by the subsequent revised plan. It would, therefore, be clear that the judgment in the case of Baburao v. Kolhapur Municipal Corporation is clearly distinguishable and the ratio would be applicable to those cases where the owner had applied for development of the land and there was failure by the Competent Authority to acquire the land after service of notice under Section 127, within the time permitted. It may be pointed out that the learned Division Bench of this Court placing reliance on the judgment in the case of Bhavnagar University (supra) proceeded to differ with the earlier views of another Division Bench of this Court taken in the case of Robert Joseph Castelline (supra). A similar issue in issue now, was in issue before the Division Bench of this Court. On service of notice under Section 127 the respondents did not take steps as contemplated to acquire the land. A petition came to be filed for a declaration that the reservation stands lapsed and the petitioners are entitled to develop the property. In reply it was contended that a fresh Development Plan was published inviting objections and in the draft development plan, the land was reserved for identical purpose for Recreation Ground. On a consideration of the various provisions under the MRTP Act the learned Division Bench was pleased to hold that even on failure of the respondents to take steps for purchase after notice had been served under Section 127 of the Act, cannot lead to the conclusion that the public purpose for which the land was designated has come to an end. The learned Division Bench held that the provisions of Section 127 prescribed that the reservation would lapse but lapsing of the reservation is not equivalent to the lapsing of the public purpose. It is always open for the planning authority to reserve the land in respect of which the reservation had lapsed for a public purpose in the next development plan. Another Division Bench in Prakash Rewadmal Gupta (supra) had reiterated the view taken in Robert Joseph Castellinie. As pointed out earlier the two judgments of the Division Benches have been considered and distinguished and differed by the learned Division Bench in Baburao D. Salokhe (supra) relying upon the judgment of the Apex Court in Bhavnagar University (supra). On a consideration of the law and the judgment we are clear that the judgment in Baburao Dhondiba Salokhe will have to be restricted to fact and situation set out therein namely to a case where after notice has been served under Section 127 of the M.R.T.P. Act, the Competent Authority had not proceeded to acquire the land within the time prescribed and before the draft revised development plan had been notified, the owner had applied for development of the land. In all such cases even if the revised draft development plan is subsequently notified, that will be of no consequence. In other words once a right is vested in the owner to develop his land that right cannot be defeated by a subsequent act of notifying a revised draft development plan or sanctioned plan by the respondents. Read otherwise, the provisions of Section 38 of the M.R.T.P. Act would be rendered otiose. As long as the section stands and its vires is not under challenge Courts would have to give effect to Section 38 as enacted by the Legislature. We make it clear that it may still be possible to contend that re- reserving the property once again may be a colourable exercise of power and/or mala fide. That will have to be considered on its own merits considering that notification of reservation is an exercise in subordinate legislation. We are, therefore, of the view that the view being taken would not be in conflict with the decision of the co-ordinate bench of this Court in Baburao Dhondiba Salokhe’s case.

8. Apart from that, from the facts on record it would be clear that after the revised development plan was notified the petitioners had filed objections. The pleadings by the petitioners are that in the revised draft development-plan the land was reserved for a market. The respondents have pleaded that the land in the draft plan along with other lands was reserved for recreation ground. The Planning Authority considering the provisions of the Act heard the objections and submitted the draft proposal to the State Government. The State Government has approved the draft proposals and the draft plan was thereafter revised in terms of the objections raised by the petitioners and accepted by the Planning Authority and the revised plan to that extent has been sanctioned by the State Government. The effect is that part of the land only is now reserved and the balance dereserved. There is no challenge to the subsequent notification of the revised sanctioned plan.

9. We are therefore, of the opinion on a co-joint reading of Section 127 read with Section 38 of the M.R.T. Act that where an owner of the land had not applied for development after deemed dereservation and in the meantime a draft revised plan is notified the owner cannot take the benefit of deemed dereservation if ultimately the draft revised plan is notified as the sanctioned development plan. That land will be reserved for the public purpose for which it is reserved. On the facts of this case the sanctioned development plan has been notified, and in the sanctioned plan only a part of the land is notified for the purpose of recreational ground. The petitioner had not applied for development of the property on the ground of deeded dereservation.

10. For all the aforesaid reasons we are of the view that there is no merit in the petition and in the light of that Rule discharged. There shall be no order as to costs.