Bombay High Court
Manakchand Chanilal Munot vs The State Of Maharashtra on 5 December, 2013
Bench: S.C. Dharmadhikari, R.P. Mohite-Dere
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SQP IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7682 OF 2005
WITH
CIVIL APPLICATION NO.1977 OF 2012
Manakchand Chanilal Munot,
Age/66 years, Occ: Agriculture
and Business, Residing at
Kapad Galli, Tal & Post Panvel,
District Raigad ...Petitioner
Versus
1. The State of Maharashtra,
through Department of Urban Planning
2. The Collector District Raigad,
having its office at Alibaug,
District : Raigad
3. The Assistant Director of Town
Planning for Alibaug,
District : Raigad, having its
office at Alibaug, District : Raigad
4. The Arbitrator Town Planning
Scheme Panvel No.1, having
its Office at Alibaug,
District : Raigad
5. Panvel Municipal Council,
having its office at Panvel,
District : Raigad ...Respondents
......
SQ Pathan 1/25
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Mr. S. R. Ganvbavale i/b Mr. Abhijit M. Adgule for Petitioner
Mr. Samir Patil, A.G.P. for Respondent Nos. 1 to 3
Mr. Sudhir Prabhu for Respondent No.5
......
CORAM:- S. C. DHARMADHIKARI AND
REVATI MOHITE DERE, JJ.
DATED :- DECEMBER 5, 2013
ORAL JUDGMENT (Per Dharmadhikari, J. ) :
1. Rule. The learned Advocates waive notice for respective
respondents. By consent, rule made returnable forthwith.
2. By this Writ Petition under Article 226 of the Constitution of
India, the petitioner is challenging the action of the respondents in not
releasing a land more particularly described in prayer clauses (a) and (b) of
this Writ Petition and by a further amendment in terms of prayer clause b(i),
the petitioner seeks the following relief:
"(b)(i) this Hon'ble Court be pleased to issue writ of Certiorari
and/or any other writ, order or direction in the nature of certiorari
and thereby be pleased to quash and set aside the Resolutions dated
5.2.2009 and 4.5.2010 passed by the Respondent No.5."
3. The facts necessary to appreciate the arguments of the learned
Counsel appearing for the petitioner are that the first respondent is the
State, whereas, the respondents 2, 3 and 4 are Officers of the State of
SQ Pathan 2/25
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Maharashtra, who have been empowered to discharge certain functions and
obligations so also vested with powers under the Maharashtra Regional
Town Planning Act, 1966 (hereinafter referred to as `the MRTP Act').
Respondent No.5 is the Planning Authority.
4. The premises consist of land which is forming part of final plot
No.538, which is totally admeasuring about 39290 sq.meters and the part
thereof totally admeasuring about 13309.74 sq. meters is kept reserved.
The petitioner in para 3 of the petition has given the details of the
immovable properties which belong to him and has then stated that in the
year 1976, a Development Plan for the city of Panvel was promulgated and
the draft development plan was notified, which subsequently became final,
in which, the final plot No.538 was comprising a land which was earlier
numbered as Survey No.741, which was kept as reserved. There are several
Hissas of Survey No.741, out of which some were owned by the present
petitioner. The entire land forming part of Survey No.741 which was owned
by the present petitioner was reconstituted and renumbered as final plot
No.538 and the said plot was reserved under the Development Plan for the
year 1976 for a public purpose namely, `Hospital'. The respondents,
SQ Pathan 3/25
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however, reserved this as an open space and not for Hospital. The
petitioner claims that the entire plot No.538 was retained in the final
Development Plan for public purposes and was kept as reserved. Petitioner
then states that in view of reservation of the entire plot of land, which was
owned by him, he was allotted two plots of land bearing final plot Nos. 533
and 534 admeasuring 2581.04 and 5016.8 sq. meters. Annexure `A' is a
copy of the special notice with regard to this allotment in pursuance of final
Town Planning Scheme for the year 1976. The petitioner then states that
though these plots have been shown as allotted to him, factually,
possession of the said plot has not been delivered to him.
5. It is urged that the development plan of the year 1976 was
superseded by second development plan for the City of Panvel, which was
made in the year 1993 and in the final development plan of the year 1993,
the entire development plan for the plot No.538 was kept reserved for
public purpose namely `Primary School and Play Ground'. The third final
development plan for the city of Panvel was made effective in the year
2000 and the said final plot No.538 was kept reserved for the purpose of
`garden'.
SQ Pathan 4/25
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6. What we find is that in para 5 of this Writ Petition, the
petitioner has averred as under :
"5. It is further material to note at this stage that in the
meantime the Town Planning Authority and the Arbitrator under
the said Act also started finalisation of the Town Planning Scheme
and the Authorities under the said Act mixed two issues of
development plan and the Town Planning Scheme. The Petitioner
states that the Development Plan is in fact related to the user of
the land while the Town Planning is concerned with the aspect of
reconstitution of plots which are in turn covered under the
Scheme. The fact therefore remains that the reservation of a
particular piece of land for public purpose and/or otherwise is
subject matter only of the Development Plan and has no bearing
whatsoever with the finalisation of Town Planning Scheme or
otherwise. However, inspite of the said fact the Respondents have
taken recourse to the proceeding of finalisation of Town Planning
and under the shelter of the defence of the Town Planning Scheme
has not been finalized till date has refused to deliver the
possession of the alternate plot which was allotted to the present
Petitioner namely Plot Nos.533 and 534, and also on the same
pretext recorded the name of the Planning Authority i.e.
Respondent No.5 herein to the final plot No.538. It is the
submission of the present Petitioner that such approach of the
Respondents of retaining the land of an individual citizen firstly
reserving by the same and secondly by not paying compensation
and/or not giving alternate site, under the guise of the finalisation
of the Town Planning Scheme itself shows the lack of benefit on
the part of the Respondent. However, the facts remained in the
present case is that the plot of land which was originally owned
by the present Petitioner i.e. survey No.741 now merged as final
plot No.538 has been kept reserved right from the year 1976 till
date, without payment of single naya paisa as compensation and
without delivery of possession of the other plots which are
granted to the present Petitioner namely plot No.533 and 534.
The Petitioner states that in view of the aforesaid and in view of
the fact that the Respondents had till date not initiated any
proceeding either for taking over the ownership of the land and
for acquisition purpose of final plot No.538 and since the
SQ Pathan 5/25
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Respondents has not paid over the compensation determined in
respect of reserved land and since the Respondents had not
delivered possession of the alternate plot of land to the present
Petitioner, the Petitioner gave several representations to the
Respondents concerned, in respect of his grievance. The said
representations initially were in respect of lesser area which was
given to the present Petitioner by way of retainable land as also
compensation and subsequently the representations were also
given in so far as change of public purposes and continuous
retention of land for reservation. Hereto annexed and marked as
Exhibit "B" (Collectively) are the copies of the said
representations. The Petitioner herein is also annexing sketch of
the land in question as found in the Development Plan from time
to time. Hereto annexed and marked as Exhibit "C" is the copy
of the sketch of Development Plans."
7.
Since the petitioner's representations were not being attended,
nor there was any favourable response and since the reservation continued
without payment of compensation, that the petitioner on 3rd June, 2002,
issued notice to the respondents requiring them to initiate proceedings
within a period of two months from the date of the receipt of the notice and
to take appropriate steps, failing which, he would be entitled to regain the
possession and ownership of the land which was held reserved under final
plot No.538.
8. It is stated that the notice was replied on 19 th July, 2002 and it
was stated therein that the Town Planning Scheme had not been finalized
SQ Pathan 6/25
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and no action is taken. The petitioner has, therefore, submitted that a notice
which has been issued by him is traceable to Section 127 of the MRTP Act,
that all essential ingredients thereof have been set out. That in terms of the
notice, it was obligatory for the Planning Authority to take steps to acquire
the land, failing which, the reservation stands deleted or the land is released
from reservation. The petitioner then can enjoy full ownership rights in
relation to this property.
9.
It is on this footing that the writ petition has been filed and it is
submitted that during the pendency of this writ petition, out of final plot
No.538A, certain portion of the property was sought to be given to the City
Sports Complex, which was to be built by the Panvel Nagar Parishad and
by resolution dated 5th February, 2009, earlier resolution was cancelled.
The respondent No.5 have passed a further resolution and by issue of
which, final plot No. 538 is to be given to some educational institution for
development of Primary School as well as play ground.
10. The petitioner's submission is that once the reservation is
clamped on the property and which is now continuing for more than 25
SQ Pathan 7/25
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years, then, not taking any steps in furtherance thereof, nor releasing the
property would jeopardize his rights guaranteed by Article 14 and 300A of
the Constitution of India. For all these reasons, it is submitted that the writ
petition be allowed.
11. Mr. Ganbavale appearing for the petitioner submitted that this
case is on par with all other matters which have been dealt with by this
Court and by the Hon'ble Supreme Court from time to time. The mandate
of Section 127 is clear. Once a notice in terms thereof has been issued, duly
served and thereafter, the steps for acquiring the property have not been
initiated, then the property stands released after the requisite period. The
reservation then cannot continue. Reliance is placed upon a decision of the
Hon'ble Supreme Court in the case of Jayesh Dhanesh Goragandhi v.
Municipal Corporation of Greater Mumbai & Ors. - Civil Appeal Nos.
8708-8709/2012 decided on 4th December, 20121, which, according to Mr.
Ganbavale, would conclude the issue. In that decision, the Hon'ble
Supreme Court has dealt with an identical controversy.
1 2013 (1) All MR 892 (SC)
SQ Pathan 8/25
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12. Further reliance is also placed on a Division Bench Judgment
of this Court in the case of Ravikant Lakshminarayan Zanwar vs. State
of Maharashtra & Ors.2, to which, one of us (S.C. Dharmadhikari, J.) was
a party.
13. It has then been urged that the notice in this case may refer to
several aspects including the final development plan, the Town Planning
Scheme Proposals and the allotment made to the petitioner in lieu of certain
plot, but it is immaterial and irrelevant. The Court must not go by the
format of the notice but by the essence thereof. In essence and substance,
the notice claims relief in terms of Section 127 of the MRTP Act, then that
cannot be denied merely because the notice was not happily worded.
Reliance is place upon several Judgments to that effect and essentially, a
Division Bench Judgment of this Court in the case of C.V. Shah & A. V.
Bhat v. State of Maharashtra & Ors.3.
14. There is an affidavit in reply which has been filed by the
contesting respondent No.5 namely, the Panvel Municipal Council. It has
2 2012 (5) Mh. L. J. 623
3 2006(3) Bom.C.R. 216
SQ Pathan 9/25
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been pointed out on affidavit that this writ petition cannot be entertained.
This writ petition cannot be termed as a petition claiming relief in terms of
the legal provision. It has been pointed out that as per the draft Town
Planning Scheme, Panvel No.1 (First Variation), the final plot No.538
comprises of land bearing Survey Nos. 737(p), 740, 741(p), 736(p), 738(p),
739(p), 742(p) of Panvel and admeasuring about 3.91 Hectares.
15. It is denied that the Development Plan for the city of Panvel
was promulgated in the year 1976. The revised Development Plan of
Panvel was sanctioned by the Government in Urban Development and
Public Health Department by a Notification dated 31 st July, 1974 and came
into force from 10th September, 1974. The plots namely, Survey Nos.
737(p), 740, 741(p), 736(p), 738(p), 739(p), 742(p) of Panvel were reserved
for "open space" as Site No.3 and not for "Hospital" and area of the site
was admeasuring about 3.91 Hectares (39290 sq. meters) and not 23242.74
sq. meters.
16. In the draft Town Planning Scheme Panvel No.1, the entry
No.741 is not forming part of the reservation. The unaffected portion of the
SQ Pathan 10/25
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same is numbered as final plot Nos.533 and 534. The total holding of
petitioner and others is shown in the Scheme Book as 23242.74 sq. meters
and numbered as original plot No. 484. The plot and area allotted in lieu of
original plot No.484 is final plot No. 533 admeasuring about 2581.04 sq.
meters and final plot No. 534 admeasuring about 5016.60 sq. meters to
original holders namely, petitioner and others. The Arbitrator appointed has
submitted a draft Town Planning Scheme Panvel 1 (First Variation) (Final)
under Section 82 (2) of the MRTP Act to the Government for final sanction
on 30th December, 2004, with minor corrections in the areas of final plot
Nos. 533 and 534. In terms of Section 88 (c) of the MRTP Act, the actual
possession of the plots proposed to be allotted in the Scheme can only be
handed over to the original holders by Panvel Municipal Council, on and
after such final Scheme comes into force and after receipt of the complete
record and papers of the sanctioned Town Planning Scheme from the
Arbitrator. The Town Planning Scheme Panvel 1 (First Variation) is
sanctioned by the State on 31st August, 2009. The Town Planning Scheme
Panvel 1 (First Variation) though sanctioned by the State, all the records
and papers of the same have not been received by the Panvel Municipal
Council and therefore, the respondent No.5 is not in a position to hand over
SQ Pathan 11/25
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the possession of the final plots to those land holders who are entitled to
possession of those plots in lieu of their acquired plots.
17. The revised Town Planning Development Plan of Panvel came
to be sanctioned and came into effect from 15 th May, 1993. In the said
Development Plan, the final plot No. 538 is reserved partly for playground
and partly for primary school. The said Development Plan is not revised
either in the year 2000 or until date.
ig There is, therefore, no third
Development Plan and reservation for garden. The same is an incorrect
statement.
18. Para 5 of the writ petition, which we have reproduced, has been
dealt with in para 4 of the affidavit and it has been pointed out as to how the
final plot was shown reserved and the unaffected part thereof in plot Nos.
533 and 534 are proposed to be allotted to the original holders. The
Arbitrator has submitted the draft of the Town Planning Scheme and that is
how it is improper to allege that any notice in terms of the MRTP Act and
particularly Section 127 can be issued. The notice itself is not tenable. It
has been pointed out that the remainder of the plot and which was
SQ Pathan 12/25
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earmarked for certain reservations, would be acquired in terms of the legal
provisions and after completing all the legal formalities. It is in these
circumstances, that it is prayed that there is no merit in this writ petition and
it be dismissed.
19. With the assistance of Mr. Ganbavale and Mr. Prabhu, we have
perused the writ petition and all annexures thereto, so also, the replies on
record. The State of Maharashtra has also filed a reply and it has
confirmed the factual position and has asserted that the Scheme is under
scrutiny and is expected to be sanctioned by the Government. Thereafter,
the plots could be handed over to the final plot holders as per the Scheme
Book. It has been pointed out that as to how the reservation in respect of
other part of the plot will not affect the entitlement of the petitioners.
20. What we find from this record is that the petitioner understood
his entitlement not to be in terms of the ownership of the land and which
ownership right cannot be fully utilized because the owner continues to
hold the property which is reserved for a public purpose under a
Development Plan. The petitioner, therefore, served a notice, copy of
SQ Pathan 13/25
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which is at Annexure `D' at page 41 and the same though styled as notice
under Section 80 of the Code of Civil Procedure r/w Sections 126 and 127
of the MRTP is now termed as a notice so as to have the property released
from reservation. We do not see how in such a notice, the petitioner was
required to refer to his rights and flowing from a Town Planning Scheme.
The petitioner himself refers to the records maintained by the Arbitrator,
Town Planning Scheme. He himself refers to final plot No.538 and
earmarked as a reservation. He himself refers to the "B" form maintained
by the Arbitrator and Town Planning Officer, under which the plot
admeasuring, according to the petitioner 23242.74 sq. meters was
transferred in the name of Municipal Council since it is a reservation plot.
The petitioner only relies upon the entries in the 7/12 extract and according
to him, they stand in the name of the petitioner himself and the agricultural
tenants.
21. In such a notice, the petitioner refers to his entitlement in lieu
of the reservation plot No.538. The petitioner claims to be entitled to plot
Nos. 533 and 534 admeasuring 7933 sq. meters. In form No.1, the name of
the petitioner was entered for the area admeasuring 7933 sq meters but
SQ Pathan 14/25
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actual possession of the plot was not handed over to him, is the grievance
and nor has he been paid any compensation for the reservation of the area.
22. Thereafter, the petitioner refers to the tardy progress in
finalization of the Town Planning Scheme and in terms of the provisions
under the MRTP Act. In Para 5 of this notice, what the petitioner states is
that from the date of the Development Plan from 1976, for over ten years,
the said lands were not acquired and the Municipal Council has unilaterally
changed the reservation on three occasions. He, therefore, says that this
communication be treated as notice under Section 49 r/w Section 127 of the
MRTP Act and also under Section 80 of the Code of Civil Procedure. The
Planning Authority is called upon to acquire the lands within a period of six
months from the receipt of notice, failing which, he would be constrained to
move the appropriate Authority or Civil Court or High Court for order of
release of the reserved plot and will do the needful, as may be advised.
Therefore, the petitioner does not end this notice and knowing fully well
that what he is claiming is not a relief under Section 127 alone, the
petitioner requests that within a period of six months, he be put in
possession of plot Nos. 533 and 534 with clear `B' form rights, in the event,
SQ Pathan 15/25
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the Planning Authority wishes to continue with the acquisition of the
reserved plot No. 538. He also intimates the Council that he would file
public interest suit in representative capacity to challenge its action of
recording reservation of plots without proper acquisition proceedings
conducted in the Town planning Scheme. It is in these circumstances that
he faults the Municipal Council, Town Planning Department and the
Arbitrator for their action, by which the purpose of the development plan
and Town Planning Scheme is crudely admixed to the detriment of the
interest of the citizen. The notice, thereafter proceeds to claim the rights
under the Town Planning Scheme as is evident from paras 7, 8 and 9
thereof.
23. The petitioner is claiming ownership rights and further claims
that his property, which is a land, is reserved in a Development Plan of the
City for a public purpose, which reservation has not been followed up by
acquisition either by a valid agreement with the petitioner/owner or in terms
of the MRTP Act or the Land Acquisition Act, 1894.
SQ Pathan 16/25
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24. From the facts as narrated above, we do not find that the
petitioner's prayer is as clear as this. The petitioner is fully aware that the
plot which was held by him on ownership basis is now fully forming part of
a Town Planning Scheme which is under implementation and which has
been implemented to such an extent that the Arbitrator has settled the rights
of the parties. The Arbitrator has also finalized the allotment in terms of the
original plot and which stands vested in the Municipal Council. In lieu of
this original plot on which the reservation has been clamped, the petitioner
has been allotted final plot Nos. 533 and 534 and which is his entitlement.
The petitioner is essentially aggrieved by the Planning Authority and the
respondent not sanctioning the Town Planning Scheme and putting him in
possession of the final plots. That is a cause of action based on which the
petitioner has through out proceeded. He has contended that the fact that
the original land on which the development plan reservation is in force, is
now taken over by and vests in the Municipal Council and in lieu thereof
the Arbitrator has allotted him two plots of land. The petitioner has not
been put in possession of even those plots of land and that is how he claims
that he can revert back to the ownership rights in his original plot. He also
claims that he has right to challenge the continued reservation of that plot
SQ Pathan 17/25
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for a public purpose and the non-acquisition thereof by the Planning
Authority. We do not see such a case covered by any of the Judgments
which are relied upon.
25. Section 126 and 127 of MRTP are clear whether amended or
unamended, their mandate is that the State or the Competent Authority can
initiate steps for acquiring a land for public purpose specified in the plan
that is in terms of Section 126. What is to happen if the land is not
acquired, is a consequence provided by 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 a declaration
under sub-section (2) of sub-section (4) of Section 126 is not published in
Official Gazette within such period, the owner or any person interested in
the land may serve notice, along with documents showing his title or
interest in the land, on the Planning Authority, Development Authority or,
as the case may be, the Appropriate Authority and in case twelve months
from the date of such service of notice, the land is not acquired or no steps
as aforesaid are commenced for its acquisition, the reservation, allotment or
SQ Pathan 18/25
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designation shall be deemed to have lapsed, and thereupon, the land shall
shall be deemed to be released from such reservation, allotment or
designation. It shall become available to the owner for the purpose of
development as otherwise, permissible in the case of adjacent land under
the relevant plan. The amendments to this provision firstly make the period
of six months earlier stipulated as twelve months and by sub-section (2), the
lapse of reservation, allocation or designation of any land under sub-section
(1) a Notification to that effect has to be published by a Government in the
Official Gazette.
26. None of the matters specified by Section 127 sub-section (1),
therefore, encompass the right flowing from a Town Planning Scheme and
as claimed by the petitioner.
27. How a right can be claimed under the Scheme is now very well
settled. Chapter V of the said Act contains several provisions. The first
part of it is making of Town Planning Schemes. Thereafter, in terms of
Section 65, in the draft Scheme, the size and shape of every reconstituted
plot has to be determined so as to render it suitable for building purposes
SQ Pathan 19/25
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and thereafter to form a final plot by reconstitution of an original plot by
alteration of the boundaries of the original plot, if necessary. From Sections
69 to 71 are matters which come into the making of a scheme and settling
of certain disputes. Thereafter, comes in the Arbitrator, his powers and
duties. The Arbitrator comes into picture for the purposes of the Scheme
being fully implemented. His decisions, the appeals from his decisions are
all matters covered thereafter and finality to his decision is given in Section
82. Possession of land in advance of Town Planning Scheme is a matter
envisaged by Section 83 and thereafter the sanction comes to the final
scheme vide Section 86. Prior thereto owner of a land of which possession
is taken is entitled to demand interest @ 24% and which the petitioner
makes, is referable to the same. The effect of final scheme is set out in
Section 88 and Clause (c) thereof envisages handing over possession of
final plots to the owners to whom they are allotted in the final scheme.
28. It is this right which the petitioner has been claiming
throughout and to his knowledge, this is his entitlement in law. We do not
see how such a controversy and which is projected throughout is covered
by Section 127 of the MRTP Act.
SQ Pathan 20/25
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29. The Judgments therefore relied upon must be seen in this light.
30. We only need to refer to the Supreme Court Judgment and
latest in point of time in the case of Jayesh Dhanesh Goragandhi (supra),
wherein, what transpired was that whether after framing a Town Planning
Scheme and the final Scheme coming into force after reserving plots for
public purposes providing compensation under Chapter V of the MRTP Act,
can the land owner insist that the land be acquired only by following the
provisions of Chapter VII of the MRTP Act, especially under Section 126
thereof.
31. In paras 3 and 4, the Hon'ble Supreme Court clarified the
factual position and referred to the Notifications approving the Scheme.
The original plot No.9 was renumbered as final plot No. 44 and the 6 th
respondent before the Supreme Court was informed that this plot was
reserved for public purpose. The Government of Maharashtra sanctioned
draft scheme (first variation) wherein the property in question was reserved
for a public purpose. Later, the Arbitrator was appointed to serve notice on
SQ Pathan 21/25
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the person whose name was mentioned as owner of the property in the
Property Register Card. Two of the legal heirs (who were plaintiffs in the
suit) sent a representation to the Corporation to release their land from
reservation and thereafter the Planning Authority informed the legal heirs to
appear before the Arbitrator to settle the rights of the parties. Thereafter all
objections were rejected and the Town Planning Scheme was settled,
sanctioned and came into effect.
32.
The Arbitrator's action culminating in determining the
compensation and proceedings under Section 89 of the MRTP Act were
challenged, including the award by the Arbitrator by a writ petition before
this Court. That writ petition was dismissed. A writ appeal was also
dismissed. The Corporation issued a notice under Section 89 of the MRTP
Act, which was challenged by filing a Civil Suit but the Civil Suit was
dismissed on the ground that the Civil Court had no jurisdiction and which
decree was set-aside and the Suit was restored to file in Appeal No.350 of
1988 by this Court. A final decree that was passed on 16/20.02.1995,
decreed the suit in favour of the legal heirs of the original owners and
liberty was granted to the Corporation to take recourse to the proceedings
SQ Pathan 22/25
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under Chapter VII of the MRTP Act, particularly Section 126. The
Corporation challenged this decree by way of a First Appeal being First
Appeal No.442 of 1995, which was dismissed by a Single Judge, against
which, a Letters Patent Appeal was preferred being LPA No.17/2003, which
came to be allowed on 6th May, 2005. It is this Judgment in the LPA which
was challenged in the Supreme Court and on the same grounds that their
matter would be covered by Section 126. It is in that light that the
observations made by the Supreme Court are relied upon by Mr. Ganbavale.
We will, therefore, have to see all these matters in the context of the
acquisitions proceedings which are contemplated of a land reserved for a
public purpose in a development plan and the matters covered by the
Scheme. We are of the opinion that the observations made mainly in para
18 that the Town Planning Scheme and matters of development plan are a
complete code by themselves, far from assisting the petitioner would go
contrary to the submissions canvassed before us.
33. In the present case, we do not see this matter can be said to be
covered by any of the Judgments of the Hon'ble Supreme Court and
particularly, the one so vehemently relied upon namely Girnar Traders v.
SQ Pathan 23/25
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State of Maharashtra & Ors.4. In these circumstances, we do not find any
necessity to refer to other Judgments which have been relied upon by the
Counsel. In all those matters, the owner served a notice because the land
was not acquired for the public purpose for which it was reserved in the
development plan within the specified period of ten years. That enabled
and entitled the owner to serve a notice under Section 27 of the MRTP Act.
The petitioner is not a layman and claims to have been advised by a
Advocate to issue notice as has been referred aforesaid. He was fully aware
that he was taking a chance. After the Town Planning Scheme was put into
operation and under implementation the rights thereunder are distinct in
nature and therefore he refers to Section 49, the award of the Arbitrator and
the settlement of rights thereunder and Section 88 so as to claim possession
of the final plot under a Town Planning Scheme. Pertinently, the final plots
allotted are not recovered for any public purpose. The reservation is
clamped on the final plot No.538 (earlier numbered as Survey No.741).
However, the portion carved out from this plot and allotted to the petitioner
and identified as final plot Nos. 533 and 534 are not affected by any
reservation. The complaint and grievance is that physical possession of
4 2011 (3) SCC 1
SQ Pathan 24/25
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these plots is not handed over to the petitioner. That is a distinct aspect and
not covered by Section 127 of the MRTP Act. The petitioner can still
pursue his complaint and claim the relief.
34. As a result of the above discussion, the writ petition fails and it
is dismissed. However, there shall be no order as to costs. We clarify that
all contentions pertaining to the relief of physical possession of the final
plots are kept open.
35. In view of the above, nothing survives for consideration in the
Civil Application. The same stands disposed off.
(REVATI MOHITE DERE, J.) (S. C. DHARMADHIKARI, J.)
SQ Pathan 25/25
