Bombay High Court
Gyanprakash Kamlashankar Shukla vs The Municipal Corporation Of ... on 16 November, 2017
Bench: Vasanti A. Naik
920-WP-1586-2016.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1586 OF 2016
Gyanprakash Kamlashankar Shukla
An Indian inhabitant of Mumbai, age about
57 years, occupation business, residing at
5th Floor, Shukla Bhavan, 95 / 97,
Mumbadevi Road, Mumbai 400 053. ...Petitioner
Versus
1. The Municipal Corporation of Greater
Mumbai
Municipal Head Office Bldg., Mahapalika
Marg, Fort, Mumbai - 1.
2. The Municipal Commissioner
Municipal Corporation of Gr. Mumbai,
Mahapalika Marg, Fort. Mumbai - 1.
3. The Chief Engineer (Development
Plan)
4. The State of Maharashtra
Thru Chief Secretary, Urban Development
Dept. Mantralaya, Mumbai 32 and
represented by the learned Government
Pleader, High Court, Bombay. ...Respondents
Mr. E.P. Bharucha, Senior Advocate, with Mr. Sarosh
Bharucha, Mr. Nikhil Shukla, Mr. Ashok Pande, i/b Mr.
Ashok Pande for the Petitioner.
Mr. Himanshu Takke, AGP for Respondent No.4.
Mr. Anil Singh, Senior Advocate, with Mr. Joel Carlos, Ms.
Pallavi Thakar, Ms. Carinex S. Zavier for M.C.G.M.
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920-WP-1586-2016.DOC
CORAM: SMT. VASANTI A NAIK AND
RIYAZ I. CHAGLA, JJ.
DATED : 16TH NOVEMBER 2017.
O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)
1. Rule. Rule made returnable forthwith.
2. The Petitioner by the present petition is seeking a
declaration that the reservation on land bearing no. CTS No. 45
(part) and 48 (part) also known as Survey No. 6 - 1A, 6-1B, 3(1)
part and 3(2) part of Majas village admeasuring 12,420 sq. meters
situate at Shukla Nagar (Vijay Nagar), Bandrekar Wadi, Subhash
Road, Jogeshwari (E), Mumbai 400 060 and land bearing CTS
No. 45(part) and 48 (part) also known as Survey No. 6-1A, 6-1B,
3(1) part and 3(2) part of Majas village, admeasuring 1254 Sq.
meters situate at Shukla Nagar (Vijay Nagar), Bandrekar Wadi,
Subhash Road, Jogeshwari (E), Mumbai 400 060 (for short
"Petition property") set out in the development plan 1991 has
lapsed and that the Petitioner is free to develop the Petition
property in accordance with law. The Petitioner is also seeking
the quashing and / or setting aside all three letters dated 7th
February 2015 and 31st May 2016 (Exhibits H, I & N to the
Petition) addressed by Respondent no. 3 / his office to the
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Petitioner and his father respectively claiming that the purchase
notice served by the Petitioner under Section 127 of the
Maharashtra Regional and Town Planning Act, 1996 (for short "the
said Act") is not proper and valid. The Petitioner also seeks
certain consequential reliefs.
A brief description of the facts is necessary :-
3. The Petitioner claims to be the co-owner of the petition
property and relies upon the conveyance deed dated 7th
December 2001 executed by one Gilbert Sabastian Misquitta
(Original Owner) and consent terms dated 9th October 2001 with
Gilbert Sebastian Misquitta's heirs undertaking to execute the said
Deed of Conveyance in favour of the Petitioner in respect of the
Petition property and pursuant to which the conveyance deed
dated 7th December, 2001 was executed. The Petitioner states
that the first Respondent had sanctioned Final Development Plan
1991 for Mumbai which came into force with effect from 29th
December 1992. Under the said Development Plan, the Petition
property was reserved for the purpose of recreation ground, (RG,)
hospital, Housing for the dis-housed and DP road. It is stated in
the Petition that the Respondent no.1 had not acquired the
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Petition property for the designated purpose within 10 years from
29th December 1992 i.e. the date when the Development Plan
came into force. The Petitioner and his father, each served a
purchase notice dated 15th May 2014 on the 2nd and 3rd
Respondents under Section 127 of the said Act. The purchase
notices enclosed the documents to show that of the Petitioner and
his father were co-owners of the Petition property. It was stated
that more than 10 years had lapsed since the Development Plan
had come into force and the Respondent nos. 2 and 3 had neither
acquired the Petition property nor published in the official gazette
a declaration in respect of the Petition property under Section 126
of the said Act. It was thus stated that unless the Respondent no.1
acquired or took any steps to acquire the petition property within
12 months from the date of the purchase notice, the reservation
on the petition property would be deemed to have lapsed and that
the Petitioner and his father would be free to develop the Petition
property. Respondent no.3 by two letters, both dated 7th February
2015, responded to the purchase notices and stated that the
purchase notices were neither proper nor valid because they were
allegedly not served on the competent authority and the
documents enclosed in the purchase notices allegedly did not
support the Petitioner and / or his father's claim of title to the
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Petition property. The Petitioner and his father have replied to the
letter of 3rd Respondent and dealt with both the grounds of
rejection mentioned in the said letter. It is stated that the purchase
notice under Section 127 of the said Act was both valid and
proper. Since there was no response on the part of the
Respondents, the Petitioner and his father by their letter dated 9th
July 2015 claimed that the period of 12 months had expired on
16th May 2015 and that since the Petition property was not
acquired within the 12 months of the purchase notice, the
reservation of the Petition property had lapsed and that the same
is now available to the Petitioner for development. The Deputy
Chief Engineer - 1 (DP) addressed letter dated 31st May 2016 to
the Petitioner claiming that the documents submitted by the
Petitioner along with his purchase notice was verified by the legal
department of the M.C.G.M. and as per the opinion of the legal
department, the purchase notice under Section 127 of the said Act
is neither proper nor valid. The Respondents have claimed that
the Petition property is still under reservation. The Petitioner has
thus filed the present Petition.
4. Mr. Bharucha, the learned Senior Counsel for the Petitioner
has submitted that the Development Plan had been finalised in
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1992 and that a period of 10 years had lapsed from the finalisation
of the Development Plan and its coming into effect. He has
submitted that the purchase notice had been issued on 15th May
2014 i.e. after lapsing of 10 years of the development plan. There
was thereafter no acquisition and / or steps to acquire under
Section 127 of the said Act and hence the reservation on the
Petition property had lapsed.
5. He has submitted that the Petitioner is a co-owner of the
Petition property and that the Petitioner had submitted the relevant
documents i.e. Conveyance Deed dated 7th December 2001 and
the consent decree passed by the City Civil Court pursuant to
which the Conveyance Deed had been executed, in respect of his
claim to be a co-owner in respect of the Petition property. He has
submitted that the Respondents had wrongly claimed that the
purchase notice was neither proper not valid for two reasons (i)
the purchase notice had not been addressed to the Municipal
Corporation of Greater Mumbai i.e. the competent authority and
(ii) that the documents which were forwarded by the Petitioner did
not support the Petitioner's claim to title to the Petition property.
He has submitted in respect of point (ii) that any person interested
in the land can issue the purchase notice under Section 127 of the
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said Act. He had relied upon the judgment of the Supreme Court
in Municipal Corporation of Greater Bombay Vs. Dr.
Hakimwadi Tenants Association & Ors.1 in support of his
submission that Section 127 of the said Act does not contemplate
an investigation into title by the officers of the Planning Authority.
It is sufficient that a person interested in the land has served the
purchase notice on the Planning Authority. He has also submitted
in respect of point (i) above that the purchase notice has been
addressed to the Municipal Commissioner of M.C.G.M. and the
Chief Engineer (Development Plan) of the M.C.G.M. and thus the
purchase notice is properly served on the principal officers of the
M.C.G.M. He has relied upon the judgment of this Court in M/s.
C.V. Shah & A.V., Bhat Vs. State of Maharashtra and Ors. 2
which dealt with the similar contention raised by the Respondents
and has held that notice required under the said Act may be
served upon the principal officer of the local authority and that the
notice addressed to the principal officer of the local authority shall
be deemed to be duly served on the local authority. It was held
that the Municipal Commissioner is the principal officer of the
Municipal Corporation and thus service on the Municipal
Commissioner is a valid service on the M.C.G.M. He has also
1 1988 (Supp) Supreme Court Cases 55.
2 2005(3) ALL MR 197.
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relied upon the judgment in the case of Perfect Machine Tools
Co. Ltd. Vs. State of Maharashtra & Ors.3 which had also
considered a similar issue of the purchase notices being served
on the Chief Engineer (DP), M.C.G.M. and it was held that such
notice is a valid notice and in fact had been acted upon and
placed before the Municipal Commissioner who had adequate
notice of the purchase notice issued under Section 127 of the said
Act. In the present case, the purchase notice has in fact been
served on the Municipal Commissioner of M.C.G.M. and hence
the purchase notice is a valid and proper notice. Mr. Bharucha has
submitted that he is not pressing part of prayer (c) of the Petition
which is in relation to the portion of the Petition property reserved
for the purpose of D.P. Roads, which the Petitioner has
undertaken to surrender.
6. Mr. Anil Singh, Additional Solicitor General of India
appearing for the Respondents Corporation has submitted that the
Petitioner is not the owner of the Petition property and has relied
upon the Affidavit in Reply filed by the Respondent Corporation in
support of his submission. He has claimed that the documents
relied upon by the Petitioner in the purchase notice would show
3 Civil Appeal No. 2946 of 2012 decided on 17th March 2016
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that the Petitioner does not have title to the Petition property. He
has submitted that neither in the property card nor in the 7/12
extract is the Petitioner shown as the co-owner of the Petition
property. He has submitted that the purchase notice is neither
valid nor proper as it has been issued by the Petitioner who is not
the owner of the Petition property. He has submitted that the
description of the Petition property in the original agreement dated
27th January 1978 executed between the original owner and the
other co-purchasers of the said property and that in the consent
terms in SC Suit No. 7603 of 1989, is different and there is no
demarcation, subdivision or even proof of disposal of the Petition
property. He has submitted that the Petitioner has not been able
to explain the correct status of the Petition property. He has thus
submitted that MCGM was duly justified in rejecting the purchase
notice of the Petitioner on account of Petitioner not having perfect
title over the Petition property. He has also submitted that there
was a Conveyance Deed dated 18th September 1989 which is
prior to the Conveyance Deed executed by the Petitioner in the
year 2001 by which the Petitioner claimed to have purchased the
petition property. It is submitted that in view of the prior
Conveyance Deed having been entered into by the original owner
with another party, the Petitioner cannot claim that he had
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purchased the property by a subsequent conveyance. He has also
submitted that the purchase notice ought to have been served on
the M.C.G.M. and that the notice issued to Respondent Nos. 2
and 3 cannot be said to be a valid notice. He has submitted that
the M.C.G.M. has recently passed a resolution on 22nd
September 2017 to acquire the said land and that the Petition
property has once again been reserved as per the Development
Plan (2014-2034).
7. We have considered the submissions made on behalf of the
parties. We are of the view that the purchase notice issued by the
Petitioner after 10 years of the coming into effect of Development
Plan 1992 i.e. on 15th May 2014 is a valid and proper notice to the
Respondent Nos. 2 and 3. We find that the Respondents have in
rejecting the purchase notices raised two issues viz. (i) that the
purchase notice has to be addressed to the M.C.G.M. and not the
Municipal Commissioner and (ii) that the issue of the purchase
notice is required to have clear title to the property. We find that
these two issues are no longer res integra and have been
answered by the Supreme Court as well as by this Court. In the
judgment of this Court in C.V. Shah (Supra), this Court had in
paragraph 22 held thus:-
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" 22. Section 136 of the MRTP Act, 1966 provides,
interalia, that any notice required under the MRTP
Act may be served upon the Principal Officer of the
local authority and if such notice is addressed to
the Principal Officer of the local authority that shall
be deemed to be duly served on the local authority.
It is not in dispute that the Commissioner is the
Principal Officer of the Municipal Corporation. The
contention that the expression "any person" in
section 136 does not include the Planning
Authority is wholly fallacious. The expression
"any person" is too wide and comprehensive and
includes both natural and unnatural person. That
would include the local authority is clear from
clause (1) of sub-section (1) of Section 136 itself.
We may immediately notice here that the Planning
Authority is defined as "local authority" in Section
2(19) and the 'local authority' in Section 2(15)
means, interalia, the Municipal Corporation
constituted under the Bombay Provincial Municipal
Corporation Act, 1949 (For short, BPMC Act). That
the Pune Municipal is the Municipal Corporation
constituted under the BPMC Act is not in doubt.
It is thus clear from this decision that the purchase notice
addressed to the principal officer viz. the Municipal Commissioner
of the M.C.G.M. is deemed to be notice duly served on the
M.C.G.M. The judgment of the Supreme Court in Perfect
Machine Tools (Supra) has also gone into issue of the service of
notice on the Chief Engineer (DP), M.C.G.M., being a valid notice
as that notice had been circulated in the M.C.G.M. and that it had
been placed before the Municipal Commissioner who had
adequate notice of the purchase notice under Section 127 of the
Act. In the present case, we find from the documents on record
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that the purchase notice had been verified by the legal department
of the M.C.G.M. and had also been issued to the Municipal
Commissioner and hence the Respondents cannot contend that
the purchase notice had not been served on the M.C.G.M. and
due to which the purchase notice was not proper and valid notice.
Hence, in view of this decision, it is not open for the Respondents
to raise this contention that the issuance of the purchase notice on
the Municipal Commissioner is not proper and valid service on the
M.C.G.M.
8. The other issue has also been answered in the judgment of
the Supreme Court in M.C.G.M. Vs. Dr. Hakimwadi (Supra),
where the Supreme Court in paragraph 7 held thus:-
"7. According to the plain reading of Section 127 of
the Act, it is manifest that the question whether the
reservation has lapsed due to the failure of the
Planning Authority to take any steps within a period
of six months of the date of service of the notice of
purchase as stipulated by Section 127, is a mixed
question of fact and law. It would therefore be
difficult, if not well high impossible, to lay down a
rule of universal application. It cannot be posited
that the period of six months would necessarily
begin to run from the date of service of a purchase
notice under Section 127 of the Act. The condition
pre-requisite for the running of time under Section
127 is the service of a valid purchasing notice. It is
needless to stress that the Corporation must prima
facie be satisfied that the notice served was by the
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owner of the affected land or any person interested
in the land. But, at the same time, Section 127 of
the Act does not contemplate an investigation into
title by the officers of the Planning Authority, nor
can the officers prevent the running of time if there
is a valid notice. Viewed in that perspective, the
High Court rightly held that the Executive Engineer
of the Municipal Corporation was not justified in
addressing the letter dated July 28, 1977 by which
he required respondents 4-7, the trustees, to
furnish information regarding their title and
ownership, and also to furnish particulars of the
tenants, the nature and user of the tenements and
the total area occupied by them at present. The
Corporation had the requisite information in their
records. The High Court was therefore right in
reaching the conclusion that it did. In the present
case, the Planning Authority was the Municipal
Corporation of Greater Bombay. It cannot be
doubted that the Municipal Corporation has access
to all land records including the records pertaining
to cadastral survey No. 176 of Tardeo. We are
inclined to the view that the aforesaid letter dated
July 18, 1977 addressed by the Executive Engineer
was just an attempt to prevent the running of time
and was of little or no consequence. As was rightly
pointed out by respondents 4-7 in the reply dated
August 3, 1977, there was no question of the period
of six months being reckoned from the date of the
receipt from them of the information requisitioned.
The Municipal Corporation had been assessing the
trust properties to property tax and issuing
periodic bills and receipts therefor and obviously
could not question the title or ownership of the
trust. We are informed that the building being
situate on Falkland Road, the occupants are mostly
dancing girls and this is in the knowledge of the
Corporation authorities. The rateable value of each
tenement would also be known by an inspection of
the assessment registers. We must accordingly
uphold the finding arrived at by the High Court that
the appellant having failed to take any steps,
namely, of making an application to the State
Government for acquiring the land under the Land
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Acquisition Act within a period of six months from
the date of service of the purchase notice, the
impugned notification issued by the State
Government under Section 6 of the Land
Acquisition Act making the requisite declaration
that such land was required for a public purpose
i.e. for a recreation ground was invalid, null and
void.
It is thus clear from the judgment of the Supreme Court that
"any person interested" in the land can issue the purchase notice
and that Section 127 of the said Act does not contemplate
investigation into title by the officers of the Planning Authority. The
Supreme Court has held that title of the person issuing the
purchase notice cannot be questioned. Hence, this objection on
the part of the Respondents that the purchase notice is not a valid
notice as it has been issued by the Petitioner whose title to the
said land has been disputed by the Respondents is also rejected.
9. We are accordingly of the view that the purchase notice has
been validly and properly issued under Section 127 of the said Act
by the Petitioner who is a person interested in the Petition
property and has been properly served on the Respondent Nos. 2
and 3 who are the principal officers of the M.C.G.M. We are of the
considered view that the reservation in respect of the Petition
property had lapsed under Section 127 of the said Act as no steps
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had been taken by the Respondents to acquire the Petition
property for the designated purposes for more than 10 years after
the development plan came into force and / or within 12 months of
the issuance of the purchase notice dated 15th May 2014 under
Section 127 of the said Act. We are of the view that the
reservation on the petition property having lapsed, the Petitioner is
entitled to develop the same in accordance with law. We have also
noted the submission of the learned Senior Counsel appearing for
the Petitioner that in prayer (c) of the Petition viz. the portion of the
Petition property reserved for the purpose of DP Roads having
lapsed is not pressed by the Petitioner.
10. We accordingly pass the following order:-
(a) We order and declare that the reservation of the
Petition property has lapsed and that the Petitioner is
free to develop the petition property in accordance
with law.
(b) We quash and set aside three letters dated 7th
February 2015 and 31st May 2016 (Exhibits "H" "I"
and "N") to the Petition addressed by the 3rd
Respondent to the Petitioner and his father
respectively.
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(c) We direct the 4th Respondent to issue and publish
order in the official gazette stating that the reservation
on the petition property as per the development plan
1991 has lapsed except for portion of the Petition
property reserved for the D.P. Roads
(d) Rule is made absolute in the above terms. There shall
be no order as to costs.
( RIYAZ I. CHAGLA J. ) ( SMT. VASANTI A NAIK, J. )
