Bombay High Court
Sulbha Vilas Patel vs The State Of Maharashtra And ... on 6 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
958 WRIT PETITION NO.11998 OF 2021
Sulbha Vilas Patel .. Petitioner
Versus
The State Of Maharashtra and Others .. Respondents
...
Advocate for Petitioner : Mr. Sushilkumar H. Tripathi
AGP for Respondent / State : Mr. K.N. Lokhande
Advocate for Respondent No.4 : Mr. Jayant R. Shah
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 06-09-2022
PER COURT :
. Heard both the sides finally with consent.
2. The petitioner's property was reserved for garden in a
development plan which was published on 25.07.2006 and finalized
on 11.09.2006. No steps were taken for its acquisition, notice under
Section 127 of the Maharashtra Regional and Town Planning Act
(hereinafter referred to as the 'MRTP Act') dated 22.09.2016 was
issued by the petitioner. Since even thereafter for 24 months no steps
were taken, Writ Petition No.682 of 2019 was filed. By the Judgment
and order dated 09.01.2020, this Court had allowed the writ petition
and declared that the reservation had lapsed. However one year time
was granted to the respondent - Municipal Council to take steps for
acquisition.
3. The petitioner thereafter applied for development of the
writ property, but by the communication under challenge dated
23.09.2021 the Municipal Council informed the petitioner that since
no further notification was issued by the State Government,
presumably under Sub-section 2 of Section 127 of the MRTP Act and
since the matter was still under consideration even in respect of
putting up a challenge to the order passed by this Court, her proposal
was rejected.
4. Aggrieved by the communication, the petitioner is now
seeking a mandamous directing the State Government to issue a
notification under Section 127 (2) of the MRTP Act and also directing
respondent no.4 - Municipal Council to consider her request for
development.
5. Indeed, the petition is unprecedented. In spite of this
Court having declared that the reservation had lapsed, the
respondents do not seem to have taken steps for issuing a notification
under Sub-section 2 of Section 127 of the MRTP Act, which is a
statutory duty. Even it would tantamount to contempt.
6. As a corollary, once this Court had declared about the
reservation had lapsed, it was indeed unfortunate and unbecoming of
respondent no.4 to refuse to consider the request of the petitioner for
development on the ground that no notification under Sub-section 2
of Section 127 of the MRTP Act was issued.
7. The issue is no more res integra. The Division Bench of
this Court in the matter of Arun Motiram Nimkar Vs. Municipal
Corporation of City of Amravati and others [2013 (4) Mh.L.J. 714]
has held that after the Court pronounces an order under Section 127
about the reservation having lapsed, it would come into force
immediately and the land owner cannot be asked to wait for
publication of a notification under Section 127 (2) to enable him to
develop his land in accordance with law. Consequently, the stand of
respondent no.4 to refuse to consider the request of the petitioner on
this ground of want of compliance of Section 127 (2) is not legally
tenable.
8. Again, we cannot permit the stand of respondent no.4 -
Municipal Council that since it was considering putting up a
challenge to the order passed by this Court in Writ Petition No.682 of
2019, it was not obliged to consider the request of the petitioner.
To our mind, taking such a stand right in the teeth of the earlier
decision of this Court wherein the Municipal Council must have been
a party is again contemptuous.
9. Be that as it may, we allow the Writ Petition by quashing
and setting aside the impugned communication and direct
respondent no.4 to take decision on the proposal submitted by the
petitioner in accordance with law, but shall not refuse to consider it
on the grounds mentioned in the impugned communication.
( SANDEEP V. MARNE, J. ) ( MANGESH S. PATIL, J. )
GGP
