Bombay High Court
Kashinath Arjunrao Gandhe Thr Gpa ... vs Ahmednagar Municipal ... on 26 February, 2016
Bench: S.V. Gangapurwala
(1) W. P. No. 9413 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Writ Petition No. 9413 of 2011
District : Ahmednagar
1. Kashinath s/o. Arjunrao Gandhe,
Adult, Occupation : Agriculture.
2. Eknath s/o. Arjunrao Gandhe,
Adult, Occupation : Agriculture.
3. Gorakshanath s/o. arjunrao Gandhe,
Adult, Occupation : Agriculture.
4. Abhijit s/o. Gorakshanath Gandhe,
Adult, Occupation : Agriculture.
5. Baburao s/o. Salveram Gandhe,
Adult, Occupation : Agriculture.
6. Ramakant s/o. Baburao Gandhe,
Adult, Occupation : Agriculture.
7. Narayan s/o. Baburao Gandhe,
Adult, Occupation : Agriculture.
8. Vitthhalrao s/o. Savleram Gandhe,
Adult, Occupation : Agriculture.
9. Keshav s/o. Vitthhalrao Gandhe,
Adult, Occupation : Agriculture.
10. Prashant s/o. Keshav Gandhe,
Adult, Occupation : Agriculture.
11. Ramnath s/o. Vitthhalrao Gandhe,
Adult, Occupation : Agriculture.
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(2) W. P. No. 9413 of 2011
12. Ravindra s/o. Vitthhalrao Gandhe,
Adult, Occupation : Agriculture.
13. Bhaskar s/o. Prabhakar Gandhe,
Adult, Occupation : Agriculture.
14. Anil s/o. Bhaskar Gandhe,
Adult, Occupation : Agriculture.
15. Avi s/o. Gandhe,
Adult, Occupation : Agriculture.
All R/o. Gandhe Mala,
Balikashram,
Taluka & District : Ahmednagar.
All through G.P.A. Holder
Shri Rajendra s/o. Rasiklal Shah,
Aged 56 years,
Occupation : Business,
R/o. Abhyankar Towers,
4th floor,
Mahatma Gandhi Road,
Nashik, District : Nashik - 422 001. .. Petitioners.
versus
1. Ahmednagar Municipal Corporation,
A statutory corporation incorporated
under the provisions of the Bombay
Provincial Municipal Corporation Act,
Having its head quarters at Ahmednagar.
2. The Commissioner, Ahmednagar,
Municipal Corporation, Ahmednagar.
3. City Engineer, Ahmednagar Municipal
Corporation, Ahmednagar.
4. The State of Maharashtra. .. Respondents.
.........................
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(3) W. P. No. 9413 of 2011
Mr. R.D. Soni, Advocate, holding for
Mr. L.D. Vakil, Advocate, for the petitioners.
Mr. V.S. Bedre, Advocate, for respondent
nos.1 to 3.
Mrs. M.A. Deshpande, Asst. Government Pleader,
for respondent no.4.
..........................
CORAM : S.V. GANGAPURWALA &
A.M. BADAR, JJ.
ig DATE : 26TH FEBRUARY 2016
ORAL JUDGMENT (Per S.V. Gangapurwala, J.) :
1. Heard the learned Counsel for respective parties.
2. Rule. Rule made returnable forthwith. By consent of the
learned Counsel for the parties, heard finally.
3. Mr. Soni, the learned Counsel for the petitioners, states that
the petitioners are the owners and fully entitled to Survey Nos. 288/1 to
288/20, admeasuring 1 Hectare 25 Ares (excluding Survey No. 288/15)
situated at Nalegaon [District : Ahmednagar). According to the learned
Counsel, the Development Plan for the city of Ahmednagar was
sanctioned by the Government on 18-2-1978. As per the said
Development Plan, land of the petitioners was reserved for the purpose of
playground and primary school as Site Nos.44 and 45 to the extent of 5700
and 4800 square meters, respectively. The learned Counsel submits that
(4) W. P. No. 9413 of 2011
on 10-4-1989, the General Body of respondent no.1 - Corporation resolved
to recommend deletion of the petitioners' land from reservation and the
said resolution was forwarded to the Government. The learned Counsel
further submits that co-owners of the said land who were owners along
with the petitioners of the said Survey Number, issued notice under
Section 127 of the Maharashtra Regional & Town Planning Act 1966 [For
short, hereinafter referred to as "MRTP Act"] on 7-6-1994 to respondent
no.1 - Corporation. On 7-6-1995, General Body of respondent no.1 -
Corporation passed a resolution thereby resolving to send proposal for
acquiring the said land to the District Collector. As the proposal was
inadequate, the Collector returned the proposal to the Corporation. It is
further submitted that on 11-6-1996, one of the co-owners of the
petitioners, namely, Raju Sudam Gandhe and Dattu Sudam Gandhe,
submitted a layout with a proposal for sanction of their plan on the basis
that the reservation on the said land had lapsed as no steps were taken by
the Corporation. The said proposal was rejected by the Corporation.
4. Thereafter Draft Revised Development Plan for the city of
Ahmednagar was published wherein reservation for garden, playground
and primary school was again proposed on petitioners' land at Site Nos.23
and 24. It is further submitted that on 17-8-1996, the petitioners objected
to the said proposal of the respondent - Corporation on the ground that
reservation had lapsed. The learned Counsel for the petitioners contend
that the co-owners of the petitioners i.e. Raju Gandhe and Dattu Gandhe
filed appeal before the State Government under Section 47 of the MRTP
Act against the rejection of their proposal for development by respondent
no.1 - Corporation. On or about 21-10-1996, said Raju Gandhe and Dattu
(5) W. P. No. 9413 of 2011
Gandhe, through their Advocate, issued notice to the respondent -
Corporation under Section 49 of the MRTP Act and sought declaration that
the reservation has lapsed. In the year 1999, said Raju Gandhe and Dattu
Gandhe filed Writ Petition bearing No. 1361 of 1999 seeking declaration
that the reservation has lapsed. The said Writ Petition is allowed by this
Court vide judgment and order dated 12-8-2010. The learned Counsel
submits that as this Court has declared the reservation to have been lapsed,
the petitioners are entitled to develop the property.
5. It is contended by the petitioners, that in an appeal filed by the
co-owners of the petitioners i.e. Raju Gandhe and Dattu Gandhe, the
petitioners filed an application along with an affidavit for being added as
parties in the said appeal. The State Government after hearing the parties
and considering the facts, allowed the said appeal and it was declared that
the designated site reservation at Site Nos.23 and 24 stood lapsed under
Section 49 of the MRTP Act and directed the Planning Authority to
consider the area under the said reservations as being included in
residential zone. The learned Counsel submits that though the appeal was
allowed by the State Government and the said reservation stood lapsed,
however, again the respondent in the Revised Development Plan in the
year 2008, continued Site Nos.23 and 24 as reserved for playground and
primary school. The learned Counsel submits that when the State
Government by order dated 5th June 2002 had allowed the appeal in which
petitioners were also parties, under Section 47 of the MRTP Act, and had
declared the Site Nos.23 and 24 to have been released from reservation,
further reservation could not have been continued. The learned Counsel
submits that the orders passed in Writ Petition No. 1361 of 1999 dated
(6) W. P. No. 9413 of 2011
12th August 2010 would also be applicable to the present petitioners as it
was at the behest of the co-owners of the petitioners. The learned Counsel
submits that the refusal to develop the said property by the petitioners, on
the part of the Corporation, is without any basis. The learned Counsel
relies on the judgment of the Hon'ble Apex Court in the case of Sri Ram
Pasricha Vs. Jagannath and others, reported in AIR 1976 SC 2335, to
contend that an action by a co-owner is for the benefit of all other co-
owners.
6. Mr. Bedre, the learned Counsel for respondent nos.1 to 3 -
Corporation, submits that the Writ Petition deserves to be dismissed on the
ground of delay and laches itself. According to the learned Counsel, the
petitioners at no point of time had issued notice under Section 127 of the
MRTP Act. The judgment and order of this Court in Writ Petition No.
1361 of 1999 dated 12-8-2010, is limited to the extent of the petitioners
therein. The present petitioners were not parties to the said Writ Petition
and the order of this Court is also specific stating that the property of the
petitioners named therein stands released from reservation. The learned
Counsel further submits that the said land has been reserved in the Revised
Development Plan. It is sanctioned on 4-7-2008 as Site Nos.23 and 24 for
playground and primary school. The petitioners have not taken any steps
pursuant to the said reservation. The learned Counsel submits that the
appeal before the State Government under Section 47 of the MRTP Act
was not filed by the present petitioners and it was filed by the other co-
owners. As such, the said order will also not come to the aid of the
petitioner. The learned Counsel further submits that the said order passed
by the Hon'ble Minister in proceedings under Section 47 of the MRTP Act
(7) W. P. No. 9413 of 2011
was a conditional order. Unless the said condition is fulfilled, the order
would not take effect. The order passed by the State Government was
made effective only if the appellants therein withdrew Writ Petition No.
1361 of 1999. As the Writ Petition was not withdrawn, the petitioners
would not be entitled for benefit of the said order also. The learned
Counsel further submits that there is nothing on record to show that the
present petitioners were added as parties in the said appeal for the
petitioners to take benefit of the said order.
7. We have also heard the learned Asst. Government Pleader for
respondent no.4 - State. We have considered the submissions canvassed
by the learned Counsel for respective parties.
8. The order of this Court in Writ Petition No. 1361 of 1999
dated 12th August 2010, certainly cannot be made applicable to the present
petitioners. The order of this Court in the said Writ Petition is specific. It
specifically states that the reservation of the petitioners therein, to the
extent of 36 Ares of Survey No. 288 is released from reservation. As such,
present petitioners would certainly be not entitled for the benefit of the
said order. It would be seen that the present petitioners had not issued
notice under Section 127 of the MRTP Act. As such, we would not rely on
the said provision while considering the case put forth by the petitioners.
9. However, it would be seen that in proceedings under Section
47 of the MRTP Act, which was initiated by co-owners Raju Gandhe and
Dattu Gandhe, the present petitioners had filed an application for
impleading them. It would also be clear from the proceedings that the
(8) W. P. No. 9413 of 2011
present petitioners participated in the said proceedings and were heard
when the final order dated 5-6-2002 was passed. The order passed by the
Hon'ble Minister in the said proceedings under Section 47 of the MRTP
Act is in a vernacular language. The operative part of the order is re-
produced below :-
"vihydR;kZauh mPp U;k;ky;kr nk[ky dsysyh ;kfpdk dz- [email protected] ekxs
Z?kssrY;kph vf/kd`r dkxni=s vgenuxj uxjikfydsyk lknj dsY;kuarj [kkyhy fu.kZ; ykxw
gksbZy-
1) vihy ekU;-
2)
vgenuxj uxjifj"knsps vuqdzes fn- 7-8-1996 o fn- 27-5-2002 ps fu.kZ;
j| dj.;kr ;sr vkgsr-
3) eatwjhlkBh lknj vfHkU;klkal fodkl fu;a=.k fu;ekoyhP;k vU; rjrqnhaP;k
v/khu jkgwu eatqjh |koh-
4) izzk#i fodkl ;kstuk vgenuxjyk 'kkluLrjkoj eatqjh nsrkuk vk-dz- 23 o
24 gh dye&49 varxZr O;ixr >kY;kus lnj {ks= jfgokl foHkkxkr
n'kZfo.;kr ;kos-"
10. Upon perusal of the operative part of the order, it is manifest
that the Hon'ble Minister has allowed the said appeal. It has set aside the
decision of the then Municipal Council dated 7-8-1996 and 27-5-2002.
The decision dated 27-5-2002 is concerning the present petitioners,
whereas decision dated 7-8-1996 was concerning the other co-owners.
The decision dated 27-5-2002 was in respect of rejection of layout
submitted by the present petitioners. The rejection of the said layout was
on the ground that the reservation still subsists. It was further directed in
the appeal, that the layout submitted for sanction should be sanctioned
(9) W. P. No. 9413 of 2011
considering the other provisions of the bye-laws and the Development
Control Rules. It is also further stated that the reservation of Site Nos.23
and 24 stands lapsed as per Section 49 of the MRTP Act.
11. It is not disputed that the said order is not challenged by
respondent no.1 - Corporation before any forum. The said order has
become final. The order further states that the petitioners should show that
the Writ Petition No. 1361 of 1999 is withdrawn and thereafter the order in
appeal would be applicable. No doubt, the petitioners in the said Writ
Petition had not withdrawn the said Writ Petition. However, present
petitioners were not party to the said Writ Petition. Vide the said order,
even the order rejecting the application for sanction of layout dated 27-5-
2002 is set aside. As such, withdrawal of Writ Petition No. 1361 of 1999
was only a ministerial act to be performed by other co-owners. On merits,
the Hon'ble Minister had declared that reservation of Site Nos.23 and 24
stands lapsed and had further directed that the said land be shown in
residential zone.
12. We could have considered case of the respondent -
Corporation, had the respondent - Corporation assailed the said order of
the Hon'ble Minister. They also do not come with a case that the order
passed by the Hon'ble Minister suffers from jurisdictional error. A
declaration was issued by the State Government that the said reservation
stands lapsed and the said order has become final.
13. In the light of the above, the Writ Petition is allowed. Rule is
made absolute in terms of prayer clause "a" which reads as under :-
(10) W. P. No. 9413 of 2011
"(a) That this Hon'ble Court be pleased to issue a
Writ of Mandamus or any other appropriate writ, order
or direction in the nature of Writ of Mandamus,
thereby directing the Respondents to implement the
order dated 5th June 2002 passed by the State
Government in Appeal No. TPS/1696/839/NAVI-9 whereby
it was held that the reservation at site No. 23 and
24 are deemed to have lapsed with direction to
sanction the layout submitted by the Petitioners and
include the said land in residential zone. "
The layout to be sanctioned shall be as per rules and bye-laws.
14.
In the circumstances of the case, there shall be no order as to
costs.
( A.M. BADAR ) ( S.V. GANGAPURWALA )
JUDGE JUDGE
................................
puranik / WP9413.11
