Bombay High Court
Satish Prakash Rohra vs Municipal Corporation Greater ... on 2 March, 2016
Bench: A.S. Oka
This Order is modified/corrected by Speaking to Minutes Order dated 10/03/2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2093 OF 2015
Satish Prakash Rohra ]
Adults, Indian Inhabitants, ]
Having his address at C-2, Rameshwar, ]
S.V. Road, Santacruz (West), ]
Mumbai 400 054 ] .. Petitioner
V/s.
(1) Municipal Corporation of
ig ]
Greater Mumbai, a statutory body, ]
Constituted under the B.M.C.Act, ]
Having office at Municipal ]
Head Office, Mumbai - 400 001. ]
(2) Municipal Commissioner, ]
Municipal Corporation of ]
Greater Mumbai, ]
Municipal Head Office, ]
Mahapalika Marg, ]
Mumbai 400 001. ]
(3) The Chief Engineer ]
(Development Plan), ]
Municipal Corporation of ]
Greater Mumbai, having ]
office at Municipal Head Office, ]
5th floor, Annex Building, ]
Mahapalika Marg, ]
Mumbai 400 001. ]
(4) The District Collector, ]
Mumbai Sub-urban District, ]
Administrative Building, ]
10th floor, Govt. Colony, ]
Bandra (East), Mumbai - 400 051. ]
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This Order is modified/corrected by Speaking to Minutes Order dated 10/03/2016
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(5) The State of Maharashtra ]
Through its Secretary, ]
Urban Development Department, ]
Mantralaya, Mumbai 400 032. ] .. Respondents
......
Mr. Virendra Tulzapurkar, Senior Counsel a/w. Mr. Sandip Parikh
and Mr. Amit Pradhan i/b. Mr. Subhash Pradhan & Co., Advocate
for the Petitioner.
Mrs. Geeta Joglekar, Advocate for Respondent Nos.1 to 3.
Mr. Anurag Gokhale, AGP for Respondent Nos.4 and 5 - State.
......
CORAM : A.S. OKA AND
ig C.V. BHADANG, JJ.
RESERVED ON : JANUARY 19, 2016.
PRONOUNCED ON : MARCH 2, 2016.
ORAL JUDGMENT (Per. C.V. Bhadang, J.)
On 12th October, 2015, a notice indicating that the
petition could be heard finally at the stage of admission was
issued. Accordingly, the petition is heard finally by consent and is
being disposed of accordingly.
2 The petitioner is claiming to be the owner of land
bearing CTS No.424 [Survey No.60, Hissa No.8] admeasuring
5798.20 sq. metres situated at village Borivali, Mumbai. The said
land was reserved for the purposes of a public garden in the
development plan of Mumbai since the year 1967.
This Order is modified/corrected by Speaking to Minutes Order dated 10/03/2016
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3 By this petition, the petitioner is seeking a
declaration that the reservation on the said land has lapsed and
that the petitioner is entitled to develop the land in accordance
with the provisions of the Development Control Regulations, 1991
for Mumbai. The petitioner IS further seeking a direction to the
respondent no.5 to issue a Notification under Sub-section (2) of
Section 127 of the Maharashtra Regional and Town Planning Act,
1966 ("the said Act", for short). According to the petitioner,
although the said land was reserved for a public garden since the
year 1967 no steps have been taken by the respondent no.1-
corporation for acquisition of the land. The said reservation for a
public garden, was continued in the year 1991-92. It further
appears that on 18th January, 2014, the petitioner issued a notice
(purchase notice) to the respondent no.2 under Section 127 of the
said Act to acquire the said land on payment of compensation as
per the prevailing law namely the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 ("the act of 2013", for short) which came
into force with effect from 1st January, 2014.
4 On suggestions being invited from the public/land
owners to the draft development plan for Greater Mumbai 2014
This Order is modified/corrected by Speaking to Minutes Order dated 10/03/2016
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-2034, the petitioner gave certain suggestions vide letter dated
10th September, 2014. The respondent no.3 for and on behalf of
the respondent no.1 claimed vide a reply dated 26 th December,
2014 that the purchase notice dated 18th January, 2014 was not in
accordance with Section 127 of the MRTP Act. The petitioner is
relying upon a communication dated 10th June, 2015 (Annexure -
R) issued by the Sub-Divisional Officer Mumbai (Western suburb)
to the respondent no.3. According to the said communication,
proposals for land acquisition, in respect of the lands as
mentioend therein have been returned to the respondent no.3 in
view of the coming into force of the Act of 2013, where although
a Notification under Section 4 and a declaration under Section 6
of the Land Acquisition Act, 1894 has been published, no award
under Section 11 of the Act of 1894 has been made. The
communication further recites that in respect of such cases, the
award has to be made in accordance with the provisions of the
Act of 2013. The proposals in respect of which notification were
not issued were also returned which includes the proposal of the
land in question. Accordingly, the proposals for land acquisition
were returned to the respondent no.3 for their resubmission. A
perusal of the said letter indicates that the land bearing CTS
No.455/1 forms part of the proposals which have been returned.
This Order is modified/corrected by Speaking to Minutes Order dated 10/03/2016
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It is thus claimed that inspite of the said land being reserved for
the purpose of public garden, the same has not been acquired
even after the purchase notice has been issued and served on the
respondent no.2.
5 We have heard the learned senior counsel appearing
for the petitioner, Mrs.Joglekar, the learned counsel for
Respondent Nos.1 to 3 and Mr.Gokhale, learned AGP for the
respondent nos.4 and 5.
ig We have considered the submissions.
It is clear from the perusal of the communication dated 10 th June,
2015 that although the said land has been subject matter of a
reservation for public garden and inspite of a service of a
purchase notice under Section 127 of the MRTP Act, the same
has not been acquired. by issuing a declaration under Section
126(4) of the MRTP Act within a period of twelve months from the
date of service of notice under Section 127(1) of the MRTP Act.
The notice was admittedly served alongwith the documents
showing title of the owners Satish Prakash Rohra and another.
Hence, the decision of the Apex Court in the case of
Sataybhamabai Dawkher Vs. Shrirampur Municipal Council
will squarely apply. This aspect has not been disputed, apart from
the same, being a matter of record.
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6 In that view of the matter, we find that the petition
has to succeed. In such circumstances, Rule is made absolute in
terms of prayer clause 33 (b) with the rider that the said land
shall become available to the owner thereof for the purpose of
development as otherwise permissible in case of adjacent land
and subject to the Development Control Regulations for Greater
Mumbai, 1991. We direct that a notification as contemplated by
Sub-section (2) of Section 127 be issued within three months
from today.
7 No order as to costs.
(C. V. BHADANG, J.) (A.S. OKA, J.)
