Bombay High Court
Rizwan Abdul Kadar Dhole And Ors vs Bhiwandi Nizampur City Municipal ... on 4 October, 2017
Bench: Vasanti A. Naik
15-WP-9564-2015.DOC
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9564 OF 2015
Rizwan Abdul Kadar Dhole ... Petitioner
Versus
Bhiwandi Nizampur City Municipal ...Respondents
Corporation & Ors.
Mr. Amol P. Mhatre for the Petitioners.
Mr. N.R. Bubna, for Respondent Nos. 1 and 2.
Mr. A.P. Vanarase, AGP for Respondent Nos. 3 & 4.
CORAM: SMT. VASANTI A NAIK AND
RIYAZ I. CHAGLA, JJ.
DATED: 4th OCTOBER 2017
JUDGMENT (Per Smt. Vasanti A Naik, J.)
Rule. Rule made returnable forthwith. The writ petition is
heard finally at the stage of admission with the consent of the
learned counsel for the parties.
By this writ petition, the petitioner seeks a direction against
the respondent - Corporation to decide the application of the
petitioner dated 29th April 2011 for grant of development
permission. The petitioners have sought a direction against the
respondent to carry out the necessary corrections in the
development plan so as to show that the land of the petitioner is
de-reserved. The petitioners have also challenged the
communication of the respondent Municipal Corporation dated
15th January 2015, rejecting the proposal of the petitioner by
referring to the provisions of Section 127 (2) of the Maharashtra
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Regional and Town Planning Act.
Few facts that give rise to the petition are stated thus:
The petitioner is the owner of land in Bhiwandi that was
reserved in the final development plan for Bhiwandi the year 1976
for school. Since the Bhiwandi Municipal Corporation did not take
any steps for the acquisition of the land for a period of 10 years
from the issuance of the final development plan in the year 1976,
the petitioners served a notice on the Bhiwandi Municipal
Corporation under Section 127 of the MRTP Act on 21st January
1987. Since effective steps were not taken by the Corporation
within a period of six months for the acquisition of the land and the
notification under Section 6 of the Land Acquisition Act was not
issued, the petitioner filed a writ petition bearing no. 6024 of 2000
for a declaration that, the reservation of the land of the petitioner's
for the purpose of school, lapsed under the provisions of Section
127 of the Act. The writ petition was allowed by this court by the
judgment dated 8th June 2004 and it was declared that the land of
the petitioner was deemed to have been de-reserved. Despite the
judgment dated 8th June 2004, the necessary notification under
Section 127(2) of the MRTP Act, deleting the land from reservation
was not issued. The petitioner applied for the development of the
plot and since the Corporation did not decide the application of the
petitioner within reasonable time, the petitioner was required to file
another writ petition bearing writ petition no. 1134 of 2013. The
said writ petition was allowed and this court directed the
respondent Municipal Corporation to decide the application of the
petitioner for permission to develop the land within a time frame.
The application of the petitioner for permission to develop the land
is not decided though the petitioner sent reminders by referring to
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the judgment dated 15th September 2014. By the impugned
communication of the respondent no.1 Corporation, that is
addressed to the Town Planning Department of the State
Government, dated 15th January 2015, the Corporation has
conveyed to the concerned department of the State Government
that though by the judgment dated 8th June 2004, in writ petition
no. 6024 of 2000, the High Court has declared that the land of the
petitioners stood de-reserved in view of the provisions under
Section 127 (1) of the Act, since a formal notification under
Section 127(2) of the Act is not issued the land of the petitioner
cannot be said to be free from reservation. The action on the part
of the Corporation of not deciding the application of the petitioner
as also the order / communication of the Corporation that the land
of the petitioner would be still under reservation, is challenged by
the petitioner in the instant petition.
Mr. Mhatre, the learned counsel for the petitioner submitted
that the action on the part of the respondent Corporation to
consider that the land of the petitioner is not free from reservation
is high handed and in violative of the directions in the juddgment
dated 8th June 2004 in writ petition no. 6024 of 2000. It is
submitted that once this court had granted the declaration that
there was a deemed lapsing of reservation under Section 127 of
the MRTP Act, the State Government had ought to have issued
the notification under Section 127(2) of the Act. It is stated that it
would be the duty of the government to notify the de-reservation
and if the State Government has failed to perform the ministerial
act, it cannot be considered that the land of the petitioner would
be still under reservation.
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Mr. Bubna, the learned counsel for the Corporation has
supported the action of the Corporation. It is submitted that the
communication addressed by the Corporation to the State
Government is an internal communication though a copy of the
same was supplied to the petitioners. It is submitted that since the
notification under Section 127(2) of the MRTP Act was not issued
by the State Government in respect of the land of the petitioners,
the Corporation was under an impression that the land was not
free from reservation. It is submitted that the petitioner had
carried out some construction without permission and that was
also noted by the Corporation in the impugned communication.
In the circumstances of the case, the Corporation could not
have declined to grant development permission to the petitioner
by considering that the land of the petitioner is not free from
reservation. Merely because the State Government had failed to
issue the notification under Section 127 (2) of the MRTP Act after
this court had granted the declaration by the judgment dated 8th
June 2004 that the land of the petitioner stood de-reserved as
there was deemed lapsing of reservation, the Corporation could
not have proceeded to decide the application of the petitioner for
development on the basis that the land was still under reservation.
It was necessary for the State Government to issue a notification
under Section 127 (2) of the MRTP Act after this court allowed the
writ petition filed by the petitioner vide judgment dated 8th June
2004. The application for permission to develop the land is made
by the petitioner in the year 2011. Due to lethargy of the
Corporation in taking steps to decide the application of the
petitioner, the petitioner was required to file writ petition no. 1134
of 2013. Despite the issuance of specific directions to the
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Corporation in the said writ petition to decide the application of the
petitioner within a time frame, the application of the petitioner is
not decided and the impugned communication was addressed by
the Corporation to the State Government, stating therein that the
petitioner was not entitled to development permission as the land
of the petitioner was still under reservation and was not de-
reserved. It is conspicuous to note that the land of the petitioner
was reserved under the final development plan for the school and
the petitioners were running the school on the said land. Since
same redevelopment is required, the petitioner had applied for
development permission in the year 2011 but till date, the
application of the petitioner is not decided on merits and the same
is sought to be rejected solely on the ground that the land of the
petitioners is still not free from reservation. In the circumstances
of the case, it would be necessary for the Corporation to decide
the application of the petitioner in a time frame.
Hence for the reasons aforesaid, the writ petition is allowed.
The impugned communication is hereby quashed and set aside.
The State Government is directed to issue the notification in
respect of the land of the petitioner under Section 127 (2) of the
MRTP Act, within one month. The respondent no.1 - Municipal
Corporation is directed to decide the application of the petitioner
for development within two months. Rule is made absolute in the
aforesaid terms with no order as costs.
( RIYAZ I. CHAGLA J. ) ( SMT. VASANTI A NAIK, J. )
