Bombay High Court

Smt. Nirmala Hiranand Rajwani vs The Municipal Commissioner, Mun. ... on 7 April, 2016

Bench: Ranjit More

    Dixit
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                     
                                        CIVIL APPELLATE JURISDICTION

                                      WRIT PETITION NO.2351 OF 2015




                                                             
            Nirmala Hiranand Rajwani                                       ]
            Residing at Barrack No.543,                                    ]
            Room No.16, Ulhasnagar-2                                       ] .... Petitioner




                                                            
                            Versus
            1. The Municipal Commissioner,                                 ]
               Municipal Corporation, Ulhasnagar,                          ]
               Ulhasnagar.                                                 ]




                                                  
                                                                           ]
            2. Asstt. Director, Town Planning,
                                        ig                                 ]
               Ulhasnagar Municipal Corporation,                           ]
               Ulhasnagar.                                                 ]
                                                                           ]
                                      
            3. Director, Town Planning,                                    ]
               Maharashtra State, Pune                                     ]
                                                                           ]
            4. The State of Maharashtra,                                   ]
               Through the Principal Secretary,                            ]
              


               Urban Development Department,                               ]
               Mantralaya, Mumbai.                                         ] .... Respondents

Mr. S.P. Kanuga, i/by Ms. Sapna Nath, for the

Petitioner.

Mr. Rajendra Desai for Respondent No.1.

Mrs. M.P. Thakur, A.G.P., for Respondent No.4-State.

CORAM : RANJIT MORE & DR. SHALINI PHANSALKAR-JOSHI, J.J.

                                     DATE     : 7TH APRIL 2016.



            WP-2351-15==.doc

ORAL JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]

1. Rule. Rule is made returnable forthwith. Heard finally, by consent of

the parties.

2. By this Petition, preferred under Article 226 of the Constitution of

India, the Petitioner seeks a declaration that reservation of land

admeasuring about 1456.3/9 Square Yards described as U. Nos.390 to

394, Sheet No.63, Camp No.2, Ulhasnagar-2 in the Draft Development

Plan of 4th April 2013, is invalid and non-operative in law and consequently

seeks a further direction permitting him to develop the said land in

pursuance of her application dated 10th January 2013.

3. The undisputed fact is that the Petitioner is the holder of the

aforesaid land, which was shown as 'reserved for school' in the

Development Plan of the erstwhile Ulhasnagar Municipal Council,

sanctioned by the Urban Land Development Department, Government of

Maharashtra vide Notification No.TPS/1272/60185/RPC dated 20 th May

1974, which came into force from 1st July 1974. As despite the expiry of

ten years from the date on which the Development Plan came into force,

the land was not acquired by an agreement as well as the proceedings for

acquisition of land had not been adopted under the provisions of Section

127 of the MRTP Act, the Petitioner served a purchase notice dated 19 th

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May 2009 upon Respondent No.1 and the same was received by the

office of Respondent No.1 on 25th May 2009. Till the expiry of the period of

one year therefrom, no steps were taken under Section 6 of the Land

Acquisition Act for acquiring the said land. As a result, the Petitioner filed

Writ Petition No.4308 of 2012 in this Court seeking declaration that the

reservation designated on her land has lapsed and the land stands

released from reservation, allotment and designation and is available to

the Petitioner for development, which is permissible in law. The said Writ

Petition was allowed by this Court on 17th August 2012.

4. The Petitioner thereafter submitted, through his licensed Architect,

an application under Section 44 of the MRTP Act, with all the documents

necessary for development of the said property, to Respondent No.1.

Respondent No.1 acknowledged receipt of the building proposal along

with the plans and issued Token No.1334130000360 dated 10th January

2013. The Petitioner also paid the scrutiny charges. Respondent No.1,

however, initially kept the said proposal pending for some time and

thereafter gave an excuse that on 4th April 2013, the Ulhasnagar Municipal

Corporation has published Revised Draft Development Plan by exercising

powers under Section 38 of MRTP Act, in which the reservation shown on

the land of the Petitioner in the earlier Development Plan has been

repeated. The Planning Committee, under Section 28(3) of the MRTP Act,

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has, however, recommended that the said reservation be deleted. The

plan and recommendation was accordingly sent to the State Government

under Section 30 of the MRTP Act on 2 nd July 2014 and the sanction of

the Government was awaited. However, the Director of the Town Planning

Authority has written a letter dated 24th September 2014 informing the

Commissioner, Ulhasnagar Municipal Corporation, that till sanction of the

plans under Section 31 of the MRTP Act is granted by the State

Government, the plans submitted for the plots designated as 'reserved' in

the Revised Development Plan should not be considered. As a result, the

development proposal submitted by the Petitioner is yet not sanctioned.

5. In view thereof, the Petitioner is again constrained to approach this

Court by submitting that, once the land is released from the reservation

under Section 127 of the MRTP Act, it becomes available to the owner for

the purpose of development, which is otherwise permissible. This right,

which is accrued to the Petitioner due to lapse of reservation, cannot be

taken away by the Planning Authority by exercising powers under Section

38 of MRTP Act by again reserving the said land for public purpose in the

Revised Development Plan. According to learned counsel for the

Petitioner, in view of the settled position of law, as enunciated by the Apex

Court in the case of Godrej & Boyce Manufacturing Company Limited

Vs. State of Maharashtra & Ors., (Civil Appeal No.1086 of 2015), the

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reservation of Petitioner's land again in the Revised Development Plan is

patently illegal and on that ground, rejection of the Petitioner's proposal for

development of his land also being illegal, cannot be sustained.

6. Learned counsel for Respondent No.1-Municipal Commissioner has

relied upon the direction received from the Director of Town Planning,

State of Maharashtra, to submit that, in view of the clear direction issued

therein that till the sanction of the Revised Development Plan under

Section 31 of the MRTP Act is granted by the State Government, the

plans submitted for development of the lands under reservation in

Revised Development Plan should not be considered, Respondent No.1-

Municipal Corporation has no option but to abide by the said direction.

7. Learned A.G.P. Mrs. Thakur has also advanced her submission on

the basis that, as the Revised Draft Development Plan is already

submitted to the State Government and in the said plan, the land of the

Petitioner is again designated as reserved for the public purpose - school,

the permission for development, as sought by the Petitioner, cannot be

granted.

8. In our considered opinion, however, this Petition needs to be

allowed in view of the legal position well crystallized in the various

Judgments of this Court and the Apex Court.

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9. It is a matter of record that, in view of the order dated 17 th August

2012 passed by this Court in Writ Petition No.4308 of 2012, which was

preferred by the Petitioner, the reservation designated on the Petitioner's

land is declared to have elapsed and the land is declared to be released

from reservation, allotment and designation and further it is declared that

it is available to the Petitioner-Owner for development, which is

permissible in law.

10.

Hence, now the only question for consideration in this Writ Petition

is, 'whether the said land can again be designated as 'reserved' in the

Revised Draft Development Plan of Respondent No.1-Municipal

Corporation?' The law in this respect is also no more res integra in view of

the Judgment of the Apex Court in the case of Godrej & Boyce

Manufacturing Company Limited (Supra) relied upon by learned

counsel for the Petitioner. The fact situation raised for consideration in the

said Civil Appeal No.1086 of 2015 before the Supreme Court was exactly

the same as in the present Petition. In that case also, the land reserved

earlier in the Development Plan of the year 1991, for laying additional

railway tracks between Thane and Kurla, was released from reservation

under Section 127 of MRTP Act. However, again the same land was

designated as 'reserved for DP Road' in the Revised Development Plan

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by issuing Notification under Section 37(1) of MRTP Act on 24th May 2006.

When the said Notification was challenged before the Supreme Court, the

Supreme Court has, after referring to its earlier decision in Girnar

Traders Vs. State of Maharashtra, (2007) 7 SCC 555, held the said

Notification as bad in law and liable to be quashed. It was held that, once

the purpose for which the land was reserved has not been utilized for that

purpose and the valid statutory right is acquired by the land owner, after

expiry of ten years from the date of reservation made in the Development

Plan and six months notice period is also expired and as the State

Government has not commenced the proceedings to acquire the land by

following the procedure, as provided under Sections 4 and 6 of the Land

Acquisition Act, 1894; therefore, the reservation has lapsed. Then it

enures to the benefit of the land owner. Therefore, it is not open for the

State Government to issue the impugned Notification proposing to modify

the Development Plan, again designating the said land as 'reserved'.

11. The similar question 'whether on account of the Revised Draft

Development Plan, the reservation, which has lapsed under Section 127

of the MRTP Act, can revive, had fallen for consideration before the

Division Bench of this Court also in Baburao D. Salokhe Vs. Kolhapur

Municipal Corporation, [2003 (5) Bom.C.R. 2321] and this Court in

paragraph 17 has made following observations :

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"The legal position as regards MRTP Act on the basis

of aforesaid observations made by the Apex Court in Bhawnagar University emerges that by imposition of a

statutory obligation under Section 38 on the part of the State or the appropriate authority to revise the

development plan the rights of the owners accrued in terms of Section 127 are not taken away. Section 38 of MRTP Act, in our opinion, does not and cannot be

read to mean that substantial right conferred upon the owner of the land or the person interested under

Section 127 is taken away. In other words, Section 38 does not envisage that despite the fact that in terms

of Section 127, the reservation lapsed, only because a draft revised development plan or final revised development plan is made, would automatically result

in revival of reservation that had lapsed. If the

reservation of the Petitioner's land for the purposes of garden had lapsed and as we found in fact has lapsed on 28-2-1992, because of draft revised plan made in

the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation."

12. Therefore, the scenario which emerges is that, the law laid down by

the Division Bench of this Court in Baburao D. Salokhe (Supra) will

squarely apply to this case.

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"The revision of Development Plan cannot take away the right of the owner in terms of sub-section (2) of

Section 127 of the MRTP Act. Section 38 does not

envisage that despite the fact that in terms of Section 127, the designation or reservation has lapsed, the same, only because the Draft Revised Development

Plan is made, would automatically given rise to revival thereof. Section 38 does not manifest a Legislative Intent to curtail or take away the right acquired by the

land-owner under Section 127 of MRTP Act of getting the land de-freezed. The owner is thus entitled to

develop his land and the Authorities cannot refuse permission on the ground that the land is again shown

as 'reserved' in the Revised Draft Development Plan, after the same has been released under Section 127 of the MRTP Act".

13. in view of this clear legal position, it has to be held that, as the right

has already accrued to the Petitioner on account of the declaration sought

by her and granted by this Court in his favour in Writ Petition No.4308 of

2012, that the reservation on his land has lapsed and the land stands

released from reservation and thus is available to the Petitioner for

development, which is permissible in law, that right cannot be taken away

by Respondent No.1 by reserving the said land again in the Revised Draft

Development Plan. It has to be held that the said land, being already

released from reservation, is very much available to the Petitioner for