Bombay High Court
M/S Mahadev Corp vs State Of Maharashtra, Through Its ... on 5 July, 2017
Bench: A.S. Oka
habeeb 1 12.wp.11527.16.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11527 OF 2016
M/s. Mahadev Corp .. Petitioner
Vs
State of Maharashtra & Ors. .. Respondents
...
Mr. Sumit S. Kothari a/w Mr. Kaustubh Thipsay for the Petitioner.
Ms. Nisha M. Mehra, AGP for Respondent Nos. 1 & 3.
Mr. Prashant Kamble i/b. Mr. A. S. Rao for Respondent No. 2.
CORAM : A. S. OKA &
SMT. VIBHA KANKANWADI, JJ.
DATE : 05/07/2017.
ORAL JUDGMENT (PER A. S. OKA, J.) :
1] Rule.
2] The learned AGP waive service for 1st to 3rd Respondents.
The learned counsel appearing for the 2 nd Respondent waives service.
Considering the narrow controversy involved in the petition, forthwith
taken up for final disposal.
3] Land bearing Survey No. 81 Hissa No. 5 (Part) situated at
Kalyan within the limits of 2nd Respondent - Municipal Corporation has
been shown reserved in the Sanctioned Development Plan under the
Maharashtra Regional and Town Planning Act, 1966 (for short "MRTP
Act"). The reservation is bearing No. 60 for primary school. The
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Petitioners served a notice under sub-section 1 of Section 49 of the
MRTP Act. By the impugned communication dated 20 th April 2016, the
State Government refused to confirm the said notice in accordance with
sub-section 4 of Section 49.
4] On the earlier date, we pointed out to the learned AGP that
while considering the issue of confirmation of the notice in accordance
with sub-section 4 of Section 49, the State Government ought to have
considered whether conditions specified in sub-section 1 of Section 49
have been duly fulfilled by the Petitioner. But the impugned
communication shows that there is non-application of mind as regards
the fulfillment of conditions prescribed by sub-section 1 of Section 49.
Faced with this difficulty, the learned AGP on instruction states that the
issue of confirmation of notice served by the Petitioner in accordance
with the sub-section 4 of Section 49 will be reconsidered by the State
Government and an appropriate decision will be taken within a period of
three months from today.
5] The learned counsel appearing for the Petitioners on
instructions states that the Petitioners have no objection for adopting the
said course. He states that the Petitioner will not invoke the deeming
fiction in the sub-section 5 of section 49. We accept the said statement
made by the learned counsel appearing for the Petitioner on instructions
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of the petitioner. Accordingly, we pass the following order:-
O R D E R
a) The impugned communication dated 28th April 2016
(Exh. F to the petition) is hereby quashed and set
aside;
b) We direct the State Government to take appropriate
decision on the issue of confirmation of the purchase
notice served by the Petitioner under sub-section 1 of
Section 49 of the MRTP Act in accordance with the
sub-section 4 of Section 49 thereof. The State
Government will have to consider whether the
conditions specified in sub-section 1 of Section 49
have been fulfilled. Appropriate decision shall be
taken by the State Government within a period of
three months from today;
c) We accept the statement of the petitioner that a
recourse will not be taken to sub-section 5 of Section
49 of the MRTP Act;
d) All contentions on merits of the purchase notice served
by the Petitioner are kept open;
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e) Rules is made partly absolute in the aforesaid terms.
(SMT. VIBHA KANKANWADI, J.) (A. S. OKA, J.)
