Bombay High Court
Ku. Anita Chandrakant Jaiswal And ... vs State Of Maharashtra And 12 Others on 28 July, 2017
Bench: B.P. Dharmadhikari
wp4371.04 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 4371 OF 2004
1. Amrut Narayan Deshpande ... DELETED
2. Ku. Anita Chandrakant Jaiswal,
M.A., B.Ed. President, Municipal
Council, Jalgaon Jamod.
3. Wasudeo Shankarrao Kshirsagar,
Vice President, Municipal Council,
Jalgaon Jamod.
4. Dilip Ajabrao Deshmukh ... DELETED
5. Sou. Meena Vijayrao Didolkar,
All residents of Jalgaon Jamod,
District - Buldhana. ... PETITIONERS
Versus
1. State of Maharashtra
through Secretary, Revenue and
Forest Department and also through
Secretary, Urban Development
Department, Mantralaya,
Mumbai 400 032.
2. Additional Commissioner,
Amravati Division, Amravati.
3. Collector, Buldana,
District - Buldana.
4. Chief Officer, Municipal Council,
Jalgaon (Jamod), Post & Tq.
Jalgaon (Jamod), Dist. Buldana.
5. Tahsildar, Jalgaon (Jamod),
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Post and Tq. Jalgaon (Jamod),
District - Buldana.
6. Director, Town Planning,
Government of Maharashtra,
office at Pune.
7. Deputy Director, Town Planning,
Amravati.
8. Town Planning Officer, Buldana.
9. Krushnarao Ganpatrao Ingle,
MLA.
10.Mrs. Urmila Krushnarao Ingle,
Both resident of Kazipura, Post and
Tq. Jalgaon (Jamod), District -
Buldana.
11.Dr. Kishor Kisanlal Kela,
r/o Main Road, Jalgaon (Jamod),
Post & Tq. Jalgaon (Jamod),
District - Buldana.
12.Narayan Sonaji Mankar through
Legal heirs -
12A) Rambhau Narayan Mankar,
aged about 56 years, r/o
Barhanpur Road, Jalgaon
(Jamod), District - Buldana.
12B) Laxman Narayan Mankar,
aged about 52 years, r/o
Sungaon Ves, Jalgaon (Jamod),
District - Buldana.
12C) Dnyaneshwar Narayan Mankar,
aged about 50 years, r/o
Barhanpur Road, Jalgaon
(Jamod), District - Buldana.
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12D) Smt. Urmila Harinarayan Ingle,
aged about 45 years, r/o Sirsoli,
Th. Telhara, District - Akola.
12E) Abhimannu Narayan Mankar,
aged about 40 years, r/o
Barhanpur Road, Jalgaon (Jamod),
District - Buldana.
12F) Smt. Sushila Sugdeo Karangale,
aged about 36 years, r/o Nimgaon,
Tah. Nandura, District - Buldana.
13.Vitthal Mandir Sansthan,
a public trust through its President
Gajanan Jahagirdar, r/o Fule Galli,
Jalgaon (Jamod), District - Buldana. ... RESPONDENTS
Shri P.C. Madkholkar, Advocate for the petitioner.
Shri A.V. Palshikar, AGP for respondent Nos. 1 to 3 and 5 to 8.
Shri G.G. Mishra, Advocate for respondent No. 4.
Shri A.M. Gordey, Senior Advocate with Mrs. V. Gordey, Advocate
for respondent No. 9.
Shri D.V. Chauhan, Advocate for respondent Nos. 10 & 11.
Shri S.V. Manohar, Senior Advocate with Shri A.A. Naik, Advocate
for respondent No. 12.
.....
CORAM :
B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
DATE OF RESERVING JUDGMENT: JULY 20, 2017.
DATE OF PRONOUNCEMENT : JULY 28, 2017.
JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri Madkholkar, learned counsel for the
petitioners, Shri Palshikar, learned AGP for respondent Nos. 1
to 3 and 5 to 8, Shri Mishra, learned counsel for respondent No.
4, Shri Gordey, learned Senior Advocate for respondent No. 9,
Shri Chauhan, Advocate for respondent Nos. 10 & 11 and Shri
Manohar, learned Senior Advocate for respondent No. 12.
2. The petitioners before this Court question the order
dated 21.12.1992 passed by Respondent No. 5 - Tahsildar,
declaring Respondent No. 12 (since deceased now through LRs)
to be tenant of agricultural land, the order dated 30.06.2003
passed by Respondent No. 3 - Collector quashing resolution of
Municipal Council, Jalgaon, dated 16.07.2002, the order dated
10.10.2003 passed by Respondent No. 2 - Additional
Commissioner rejecting the application of the Municipal
Council to set aside said order of the Collector and lastly, the
order dated 29.11.2003 by Respondent No. 6 - Director of
Town Planning, directing that the reservation on said land
fastened in Development Plan of the year 1994 has lapsed. By
last order, modified user as suggested in proposed Development
Plan has been maintained and order of Municipal Council dated
31.07.2003, refusing permission to develop has been set aside
as reservation has lapsed. Respondent No. 6 has observed that
the applicants before him viz., Respondent Nos. 10 and 11 are
entitled to develop the same. Apart from this, as subject land
has been sold by Respondent No. 12 during his life time to
Respondent Nos. 10 and 11, consequential mutation entries in
revenue records are also questioned by the petitioners.
3. It needs to be noted that Respondent No. 4 before
this Court is the Chief Officer, Municipal Council, Jalgaon
(Jamod). The Municipal Council, as such, has not been joined
as party respondent.
4. The contention of the petitioners in brief is, the
subject land belongs to Respondent No. 13 - Public Trust and
in view of the provisions of Section 129(b) of the Bombay
Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958
(hereinafter referred to as 1958 Act), Respondent No. 12 could
not have become owner of that land. It is further claimed that
the tenancy of Trust is not heritable and after his death, the
land must revert back to Respondent No. 13 - Public Trust.
Consequently, sale deed of land executed by Respondent No.
12, in favour of Respondent Nos. 10 and 11 is bad in law.
5. The challenge to lapsing of reservation partly
springs due to absence of ownership of Respondent Nos. 10 and
11. It is also pointed out that the Municipal Council has itself
resolved on 16.07.2002 that it needs the land for development.
The Collector, while acting under Section 308 of the
Maharashtra Municipalities, Nagar Panchayats and Industrial
Townships Act, 1965 (hereinafter referred to as 1965 Act), does
not possess jurisdiction to set aside resolution dated 16.07.2002
or any other resolution. The course prescribed under Section
308 of 1965 Act, has not been followed and hence the decision
itself of lapsing and orders dated 30.06.12003 or 10.10.2003
setting aside that resolution is bad. The letter or order dated
29.11.2003, passed by Respondent No. 6 - Director, is also,
therefore, bad in law.
6. We have stated controversy above only to enable
understanding of arguments which we briefly mention below.
Subject land is Field Survey No. 32, Gat No. 75, Mouza -
Khelfut, Village - Jalgaon (Jamod). It was reserved for
Municipal School, Town Hall, Shopping Centre and Play
ground.
7. Shri Madkholkar, learned counsel appearing for the
petitioners has submitted that petitioner No. 1, was a senior
citizen, active in social life, while petitioner No. 2 was at the
relevant time, President of Municipal Council. He defeated
respondent No. 10 in direct election and respondent No. 10 was
wife of then sitting MLA. The third petitioner at the time of
filing of petition was Vice President of Municipal Council and
associated with some other bodies in public life. Fourth
petitioner was associate member of Municipal Council, co-opted
as such, because of his social service. Petitioner No. 5 was then
President of a Womens body and also active in social life. He
claims that as Respondent No. 13 is a Public Trust, land vesting
in it i.e. subject land, cannot be and could not have been
subjected to the provisions of 1958 Act and hence vesting of
title initially in respondent No. 12 and subsequent sale deed
executed by him in favour of Respondent Nos. 10 and 11 are,
all void transactions.
8. As the transactions are void, alleged notice under
Section 127 (1) of the Maharashtra Regional Town Planning
Act, 1965 (hereinafter referred to as MRTP Act), is
unsustainable and as title is not extinguished even today,
reservation continues. Hence, resolution dated 16.07.2002 is in
force. Permission to develop, therefore, could not have been
and cannot be given. Mutation entries consequential to void
sale are, therefore, bad in law.
9. Inviting attention to the orders of this Court dated
27.01.2005, he states that the petitioners have deposited sum
of Rs.50,000/- with the Registry of this Court to show their
bonafides and this Court on 30.03.2005 while admitting writ
petition for final hearing, directed the parties to maintain status
quo. With the result, land is still available for earmarked
development.
10. In support of his contentions, he has relied upon the
judgment of the Hon'ble Apex Court in the case of Shriram
Mandir Sansthan @ Shri Ram Sansthan, Pusda vs. Vatsalabai &
Ors ., reported at 1999 (1) Mh. L.J. 321; in Sunil s/o Manikrao
Aparadhe vs. State of Maharashtra & Ors., reported at 2006 (2)
Mh. L.J. 185; and in Nivrutti Sopan Waghmode vs. Collector,
Nashik & Ors., reported at 2010 (4) Mh. L.J. 933.
11. Shri Manohar, Senior Advocate appearing for legal
heirs of Respondent No. 12 submits that ownership vested in
Respondent No. 12 and it was recognized by Respondent No. 5
- Tahsildar on 21.12.1992. This order was never questioned by
anybody and has attained finality. He points out that Purchase
Certificate was accordingly issued in his name after deposit of
purchase money. The provisions of 1958 Act came into force in
1960 while respondent No. 13 - Trust moved application for
registration under Bombay Public Trust, 1950, on 29.01.1963.
Respondent No. 12 was declared as tenant from 01.04.1061 of
one Shri Joshi. No document of registration of Public Trust or
then details of immovable properties held by it (Schedule - I)
has been produced on record. Respondent No. 12 obtained
permission to sell, by moving an application dated 18.06.2001
and that permission was granted on 21.06.2001. Thereafter by
registered sale deed, Respondent Nos. 10 and 11 purchased
subject land. He also points out that this land came in
municipal limits on 15.08.1983 and at that time as there was
no Trust and there was no exemption under Section 129(b) of
1958 Act, title had already vested in Respondent No. 12. Thus,
this fact has only been recognized by purchase certificate dated
18.12.1992. Transfer charges of Rs.840/- were also paid and
notice under Section 127(1) was issued on 18.07.2001 and its
service and absence of any steps on the part of Municipal
Council, leading to acquisition within the stipulated period are
not in dispute. Lapsing has been recognized on 09.07.2003
itself. He contends that before revenue authorities, no Trust
document/ deed has been produced and there is no exemption
certificate obtained by the Trust as per law. He points out that
revision filed by Respondent No. 13 - Trust against adverse
orders of the Tahsildar was dismissed by the Maharashtra
Revenue Tribunal in default on 15.02.2012. It is further
submitted that in this situation, the petitioners are trying to air
a stale grievance only out of political rivalry. He also invites
attention to affidavit in reply filed by Respondent No. 3 -
Collector.
12. Shri Chauhan, learned counsel appearing for
respondent Nos. 10 & 11 submits that the Municipal Council
had earlier filed a writ petition vide Writ Petition No. 5042 of
2003 and it was withdrawn by Municipal Council on
02.08.2004. High Court did not grant any liberty to the
Municipal Council to approach again. On 31.07.2004,
Municipal Council resolved to file a Public Interest Litigation by
withdrawing pending writ petition. Shri Chauhan, learned
counsel claims that thereafter Municipal Council has not filed
any petition. He invites attention to reply affidavit filed by
Naib Tahsildar and the Chief Officer of Municipal Council in
present matter to urge that said authority has accepted lapsing
of reservation. He submits that Respondent No. 13 - Trust filed
Writ Petition No. 1409 of 2005 assailing order dated
29.11.2003 of the Director of Town Planning but it was
dismissed in default on 07.03.2014.
13. Shri Mishra, learned counsel appearing for
respondent No. 4 - Chief Officer, submits that reservation has
already lapsed and as disclosed in affidavit, the Municipal
Council was/ is not in financial position to acquire land or to
raise construction on it.
14. Shri Gordey, learned Senior Advocate appearing for
respondent No. 9 submits that in the body of writ petition,
adverse allegations have been made against respondent No. 9
about misuse or abuse of his position by him. The same are
already denied and material on record, particularly orders
passed by various quasi judicial authorities demonstrate
absence of any merit in it.
15. Shri Mishra, learned counsel, has produced before
the Court a xerox copy of letter dated 21.04.2016 sent by the
Town Planner, Buldana to Respondent No. 4 - Chief Officer,
wherein it is mentioned that revised Development Plan for the
Municipal area is sanctioned by the State Government on
19.12.2005 and it has come into force on 15.01.2006. In it, on
land recommended for non-agricultural purposes as per letter
No. 1078 dated 05.08.2004 by the office of Town Planner, i.e.
Reservation No. 41 for Town Hall and Shopping Centre, while
reservation No. 42 for Primary School and Play ground has
been provisionally shown with remark that the State decision
on it is withheld. He has communicated that after government
decision, appropriate step in this respect will be taken.
16. According to Shri Madkholkar, learned counsel,
letter dated 21.04.2016 shows that reservation has been again
fastened on subject land.
17. The communication dated 21.04.2016 has not been
filed on record with affidavit. We mention it only for the
purposes of record, as it has been produced by the Chief Officer
of Municipal Council. Respondent No. 6 - Director,
Respondent No. 7 - Deputy Director or Respondent No. 8 -
Town Planning Officer, has not produced it.
18. The concerned respondents viz., Respondent Nos.
10 & 11 do not have any knowledge about its contents.
Reservation No. 41 on subject land finds mention in resolution
of Municipal Council dated 16.07.2002. Reservation No. 42 is
also mentioned therein. Communication dated 21.04.2016
does not indicate fastening of any reservation finally in terms of
Section 31(6) of the MRTP Act. That letter, therefore, does not
advance the resolution's aim or the petitioners.
19. The provisions of Section 308 of 1965 Act are very
clear. Respondent No. 3 - Collector can, after he is approached,
suspend the resolution. He has then to make a report to the
Divisional Commissioner. Party aggrieved by such suspension
gets right to move the Divisional Commissioner for modifying
or vacating that order. Here, the Collector himself sets aside
the resolution dated 16.07.2002 passed by the Municipal
Council. Though records do not show that the Collector
forwarded the report regarding it to the Divisional
Commissioner, Municipal Council then approached Respondent
No. 2 in revision against the order of the Collector under
Section 318 of 1965 Act. That revision has been looked into
and on merits, the Additional Commissioner has maintained on
10.10.2003 the order of the Collector dated 30.06.2003. This
order of the Additional Commissioner has become final as the
Municipal Council did not question it at any point of time.
20. By resolution dated 16.07.2002, General body of
Municipal Council resolved to acquire land Survey No. 32, Gat
No. 75 i.e. subject land. The challenge by Respondent Nos. 10
and 11 thereto under Section 308 is looked into by Respondent
No. 3 - Collector. The Collector has found that a notice under
Section 127 (1) of MRTP Act was served on Municipal Council
on 18.07.2001 and because of its failure to take action, the
reservation lapsed.
21. When Municipal Council approached Respondent
No. 2 against this order, the Additional Commissioner has on
10.10.2003 taken note of the order of the Director of Town
Planning dated 09.07.2003 by which it is declared that
reservation has lapsed on 09.07.2003.
22. This position is also apparent after perusal of order
dated 29.11.2003 passed by the Director of Town Planning. It
was an Appeal under Section 47 of the MRTP Act, wherein
service of notice under Section 127(1) on 18.07.2001, failure
on the part of Municipal Council to take steps within six
months and, therefore, lapsing of reservation on 18.01.2002
find mention. The said authority observes that in view of
reservation of Post Office, the Superintendent of Post Office,
Buldana, was on 08.04.2003 served with an independent notice
under Section 127 of the MRTP Act. It was replied by that
authority on 12.11.2003 and that authority intimated that land
was not needed by it. Apart from this express communication
of absence of need, the Director of Town Planning has also
taken note of fact that within six months, steps to acquire the
said land were not taken by that authority.
23. This order shows that in proposed Revision in terms
of Section 26 of the MRTP Act, Development Plan was
published on 24.01.2002 in Government Gazette. As per that
proposal, Reservation No. 41 on 1.67 Hectare on subject land
was for Town Hall and Shopping Centre. Reservation No. 42
on 0.78 Hectare was for Primary School, Play ground and 15
meters vide roads under D.P. The authority has observed that
once reservation on subject land fastened in 1984 had already
lapsed, it could not have been refastened again as per policy
decision of the State Government. Conclusions drawn are that
once after Purchase notice reservations had lapsed, reservation
again could not have been refastened and Authority draws
support from Government Policy dated 18.06.1991.
24. It needs to be noted that Division Bench of this
Court in the case of Kishor Gopalrao Bapat vs. State of
Maharashtra, reported at 2005 (4) Mh. L.J. 466, has
independently taken similar view. The authority (Respondent
No. 6) has also mentioned judgment of Bombay High Court
dated 19.04.2013 in Writ Petition No. 4556 of 1992 Baburao
Dhondiba Salokhe vs. Kolhapur Municipal Corporation. The said
authority has, therefore, on 29.11.2003 set aside rejection
dated 31.07.2003 by the Municipal Council to develop.
25. The petitioner is placing reliance upon Government
Resolution dated 05.06.2000. There, the State Government has
observed that when modifications are proposed or
Development Plan is being finalized, Municipal Council should
not permit development to the contrary i.e. inconsistent with
the proposed user. However, in the absence of any statutory
provision in the MRTP Act, such a direction cannot be legally
enforced. In any case, in the wake of order dated 29.11.2003
passed by Respondent No. 6, this Government Resolution
cannot help the petitioners.
26. Respondent No. 12 has been declared as tenant of
one Shri Joshi from 01.04.1961. Respondent No. 13 moved an
application for registering itself as a Trust on 29.01.1963. The
Tahsildar (Respondent No. 5) has passed an order on an
application moved by the deceased Respondent No. 12 - tenant
against Shri Joshi on 30.11.1992. The application moved by
Respondent No. 13 for its registration on 29.01.1963 reveals
that along with application, no documents pointing out creation
of Trust were produced and no scheme was filed. While giving
details of immovable properties, lands at Mouza - Khelfut are
mentioned therein but no title documents in support of title
could be produced. This document on its second page carries
date 29.04.1961 and seal therein mentions date 17.03.1962.
The petitioners have not relied upon and invited our attention
to this document. However, when Respondent No. 12 was
declared as a tenant of Shri Joshi from 01.04.1961 in relation
to subject land, it is apparent that this document cannot
advance the case of the petitioners at all.
27. The order of Tahsildar dated 11.02.2000 in
proceedings filed by tenant Shri Mankar against Respondent
No. 13 through its Priest also shows a finding that the Trust
could not file any document to support its title to subject land.
The Tahsildar in fact takes note of the order of Maharashtra
Revenue Tribunal dated 04.05.1998 and finds that non-
applicant Trustees were absent continuously and did not give
any oral or documentary evidence to show that it is registered
Trust or then they were Trustees of that Trust. Again this
finding is not commented upon by the petitioners and is not
shown to be perverse.
28. The Sub-Divisional Officer has considered the
Appeal against this order of Tahsildar dated 11.02.2000. The
Sub-Divisional Officer was approached by Respondent No. 13
and its Trustees. In the order passed on 17.05.2001, Sub-
Divisional Officer has affirmed findings of the Tahsildar. His
findings show that the appellants before him (present
Respondent No. 13) could not produce any exemption
certificate under Section 129(1)(b) and, therefore, compliance
with Section 129 of 1958 Act, could not be ascertained. This
order shows that inclusion of subject land within the Municipal
limits of Amravati on 15.08.1983 is also not proved by
anybody. Again these findings are not shown to be perverse by
the petitioners.
29. After this order of Sub-Divisional Officer,
Respondent No. 13 approached the Commissioner, in Revision
with application for condonation of delay. A perusal of revision
memo preferred under Section 111 of 1958 Act, does not show
any pleading or challenge to the facts mentioned supra. This
revision came to be dismissed in default on 15.12.2012. The
facts which have come on record are, therefore, undisputed
before us.
30. Before this Court, in present writ petition,
Respondent No. 4 - Chief Officer has filed reply affidavit and in
it in paragraph 4, service of a valid notice dated 18.07.2001 by
Respondent Nos. 11 and 12 under Section 127 of the MRTP Act
or lapsing of reservation has been accepted. The subsequent
resolution on 16.07.2002 is also accepted by the Municipal
Council. Lastly, it has pointed out in paragraph 9, its inability
to acquire the land and develop it, as necessary funds are not
available.
31. Reservation for Post Office was a proposed
modification which never came into force and in any case the
Superintendent of Post Offices has already communicated
absence of need of said land. This communication or absence
of need is not in dispute before us.
32. Writ Petition No. 5042 of 2003 was filed by the
Municipal Council against various respondents including its
Chief Officer. In that petition, Municipal Council is shown to
have filed the challenge through its President - Anita Jaiswal.
This lady is petitioner No. 2 in present matter. She has only
impleaded the Chief Officer of the Municipal Council but did
not join the Municipal Council itself as party respondent in this
petition.
33. It appears that Respondent No. 13 - Public Trust
itself filed Writ Petition No. 1409 of 2005 before this Court and
questioned the orders passed by the revenue authorities. That
writ petition has been dismissed in default on 07.03.2014.
With the result, the order dated 29.11.2003 passed by
Respondent No. 6 - Director of Town Planning has attained
finality.
34. The petitioner has relied upon communication
dated 29.07.2003 to urge that there the Town Planner has
found notice under Section 127(1) of the MRTP Act, defective.
Respondent No. 8 - Town Planner has found notice defective as
according to him, appropriate authority for reservation of Post
Office, was not served with notice. After order dated
29.11.2003 passed by the Director, this communication does
not survive. In any case, the Superintendent of Post Offices has
in writing communicated that it does not need said land at all.
35. In this situation, we find that status of Respondent
No. 13 as Public Trust, its entitlement or exemption in terms of
Section 129 of 1958 Act, are all not proved on record. Service
of a valid notice and lapsing of reservation has been
conclusively established. Thus, very foundation to support
challenge as raised by the petitioners are missing. Not only
this, the petitioners have not joined Municipal Council as party
respondent. They have only joined its Chief Officer and the
Chief Officer has supported the case and cause of the
petitioners. As such, we do not find any substance in any of the
contentions of the petitioners. Though the Collector could not
have quashed and set aside the Resolution dated 16.07.2002 of
the Municipal Council, the material shows that the Municipal
Council itself was not and is not in a position to acquire the
land. The Collector was expected to send papers to Respondent
No. 2 - Additional Commissioner. The matter went before
Respondent No. 2 at the instance of the Municipal Council and
Respondent No. 2 has maintained the order of the Collector.
Thus, very same purpose and effect has been achieved
indirectly. We, therefore, find no substance in the challenge
that the Collector could not have quashed the resolution under
Section 308 of 1965 Act. The error, if any, at the hands of the
Collector has been corrected in present matter as Municipal
Council itself approached the Additional Commissioner for
vacation of that order. In this situation, it is not necessary for
this Court to refer to three judgments relied upon by the
petitioners, mentioned supra.
36. As we find no case made out, we dismiss the
present writ petition. Rule discharged. However, in the facts
and circumstances of the case, there shall be no order as to
costs. Amount deposited by the petitioners be refunded to
them with accrued interest.
JUDGE JUDGE
*******
*GS.
