Bombay High Court
Shri Haji Gulam Mustafa S/O Haji ... vs The State Of Maharashtra Through ... on 2 September, 2016
Bench: B.P. Dharmadhikari
901-J-WP-217-15 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.217 OF 2015
1. Haji Gulam Mustafa s/o
Haji Chandmiya,
Aged 50 yrs, Occ. Business,
R/o Plot No.306-B, Mouza Wathoda,
Nagpur.
2. Devendra Radheshyam Mehadiaya
Aged about 55 yrs, Occ. Nil, ig
Thr. Its POA Holder,
Smt. Lilawati Devendra Mehadiya,
R/o 561A, Ramdashpeth, Nagpur
3. Babita w/o Bhimrao Rawade
Aged 42 yrs, Occ. Household,
R/o Wathoda, Nagpur
4. Sonal w/o Vijay Thakral
Aged 40 yrs, Occ. Household,
R/o Wathoda, Nagpur.
5. Bhimrao s/o Bisahuram Rawade
Aged 35 yrs, Occ. Private Work,
R/o Wathoda, Nagpur. ... Petitioners.
-vs-
1. The State of Maharashtra,
Through Secretary,
Town Planning Department,
Secretariat (Mantralaya),
Mumbai.
2. Nagpur Improvement Trust,
Through its Chairman,
Civil Lines, Nagpur
3. The Collector,
::: Uploaded on - 06/09/2016 ::: Downloaded on - 07/09/2016 00:18:02 :::
901-J-WP-217-15 2/8
Civil Lines, Nagpur
4. Nagpur Municipal Corporation,
Through Commissioner,
Civil Lines, Nagpur
5. Shailesh Co-operative Housing
Society, Through its President/Secretary,
Near Cotton Market, Nagpur. ... Respondents.
Shri H. I. Kothari, Advocate for petitioners.
Shri J. Y. Ghurde, Assistant Government Pleader for respondent Nos.1 and 3.
Shri R. O. Chhabra, Advocate for respondent No.2/NIT.
Shri S.M. Puranik, Advocate for respondent No.4/NMC.
Shri A. A. Naik, Advocate for respondent No.5.
CORAM : B.P.DHARMADHIKARI &
A.S.CHANDURKAR, JJ.
DATE : September 02, 2016
Oral Judgment :
Five petitioners before this Court are members of respondent
No.5-Co-operative Housing Society and that Society has sold them their
respective plots. It is not in dispute that these plots are part of the land
which is reserved for fire station of respondent No.4-Nagpur Municipal
Corporation in final development plan vide ME-53 as per Notification dated
10/09/2001.
2. After expiry of period of ten years, as the land was not acquired,
respective petitioner had issued notices under Section 127(1) of the
Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as
901-J-WP-217-15 3/8
'MRTP Act') on 26/02/2013. Service of legal and valid notice by them,
expiry of period of one year thereafter without respondent No.4 taking any
steps is not in dispute.
3. Advocate Shri H. I. Kothari for the petitioners in this situation
submits that as within one year no steps to acquire the plots of respective
petitioners were taken, reservation for fire station upon those plots lapses
and a notification accordingly needs to be issued under Section 127(2) of
MRTP Act.
4. During hearing on earlier date it became apparent that though
respondent No.5-Co-operative Housing Society had sold the plots to
respective petitioners, the plots were not regularised by Nagpur Improvement
Trust i.e. respondent No.2 as per provisions of Maharashtra Gunthewari
Developments (Regulation, Upgradation and Control) Act, 2001 (hereinafter
referred to as Gunthewari Act). Hence after hearing respective counsel, this
Court issued necessary directions to find out whether ignoring this
reservation for fire station, regularisation under Gunthewari Act is possible.
The exercise was thereafter undertaken by respondent No.2-Nagpur
Improvement Trust and it found no legal obstacle in regularising the plots of
respective petitioners. Thus, respective petitioners are found in possession of
their plots well before the cut off date stipulated in Gunthewari Act.
901-J-WP-217-15 4/8
5. Advocate Shri H. I. Kothari has relied upon Division Bench
judgment in Satish s/o Soma Bhole v. State of Maharashtra and ors.
2010(6) ALL MR 65 to urge that there also few owners of undivided share of
the plots situated on a reserved land had approached this Court and this
Court has declared that reservation only to the extent of their share lapsed.
6. Advocate Shri S. M. Puranik, for respondent No.4-Nagpur
Municipal Corporation submits that as there is reservation for fire station, the
respondent No.2-Nagpur Improvement Trust had not regularised the plots.
As such there was no question of respondent No.4-Nagpur Municipal
Corporation acquiring the same. He further adds that as Nagpur Municipal
Corporation is facing financial crunch, in such matters, when acquisition
becomes necessary it is offering TDR only. He distinguished the above
mentioned judgment in Satish Soma Bhole (supra) by inviting our attention
to the fact that all owners of final plot No.526 having undivided share
therein were before the Court. He contends that in present matter neither
respondent No.5-Society nor other members who have purchased plots from
it in that layout are seeking any such relief. Hence, even if this Court
grants declaration to the extent of shares of the petitioners, reservation on
remaining land legally continues. As such, there cannot be partial lapsing of
a reservation for fire station which has to be treated as one integrated
purpose.
901-J-WP-217-15 5/8
7. On merits he points out that reserved land is still needed by
respondent No.4 for locating its fire station and ancillary colonies. Learned
Assistant Government Pleader for respondent No.1-State and respondent
No.3-Collector adopted arguments of Advocate Shri Puranik. Advocate Shri
Chhabra for respondent No.2-NIT submits that because of directions of this
Court, by ignoring the reservation prescribed in development plan, only
application of Gunthewari Act has been looked into by respondent No.2.
8. The provisions of MRTP Act do not bar the owner on whose land
any reservation is fastened, from selling the same. Accordingly sale of land
on which reservation for fire station is fastened or its purchase by respondent
No.5-Society is not illegal. Nobody has even argued so. Sale of plots to its
members by respondent No.5-Society is also not assailed by any of the
respondents as non-est. Petitioners have purchased those plots and
respondent No.5 has placed them in possession. As per the scheme of
Gunthewari Act, when respondent No.2-NIT has considered those plots for
reservation, it has found the plots in existence before the cut off date i.e.
01/01/2001 and has also found respective petitioners in possession thereof.
Title as such is not the relevant yardstick under that Act. In view of this
scrutiny, respondent No.2 has regularised the plots purchased by the
petitioners. This regularisation and the facts implied therein therefore show
that the petitioners have a right to develop as envisaged under Section
901-J-WP-217-15 6/8
127(1) of the MRTP Act in their respective plots. Service of a valid notice by
them in terms of Section 127(1) and expiry of period of one year thereafter is
not in dispute. It is also not in dispute that in this period of one year,
respondent No.4-Nagpur Municipal Corporation could not take any steps for
acquisition.
9. The judgments of Honourable Apex Court in State of
Maharashtra vs. Bhakri Vedanta Book Trust (2013) 4 SCC 676 and
Shreeram Municipal Corporation vs. Satyabhama Bai (2013) 5 SCC 627
therefore, squarely apply here.
10. In Satish s/o Soma Bhole (supra) facts as given in paragraph 2
show that reservation for garden was fastened on original plot No.526 in
Survey No.170. Owners of land Survey No.170 (eighteen persons) were
allotted final plot No.524 as their respective shares. Petitioners before the
High Court were purchasers of undivided share of the original allottees of
plot No.524. Thus it is not very clear whether all purchasers of undivided
shares were before the High Court. But then in paragraph 13, High Court
has released from reservation the shares of petitioners before it only.
11. We have already noted supra that provisions of MRTP Act do not
prohibit any individual from selling his plot on which reservation is fastened.
901-J-WP-217-15 7/8
It is therefore apparent that owners like petitioners, whose plots are covered
by reservation and that reservation is fastened on larger area of land which
includes such plots, can also aspire to develop their respective plot and
therefore serve notice under Section 127(1) of MRTP Act.
12. As such we find that petitioners have complied with Section
127(1) of the MRTP Act and reservation of fire station to the extent of their
plots has lapsed. Accordingly, we partly allow the writ petition and declare
that respective plots of petitioners can be used for the purposes for which
adjacent lands can be used as per provisions of MRTP Act.
No order as to costs.
JUDGE JUDGE
Asmita
901-J-WP-217-15 8/8
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