Bombay High Court
Pravinchand Harakchand Lodha vs The State Of Maharashtra And Others on 1 December, 2023
2023:BHC-AUG:25129
(1) wp4752.19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.4752 OF 2019
Pravinchand Harakchand Lodha ...PETITIONER
Age-59 years, Occu- Business,
R/o. Shivaji Road, Shrirampur,
Tq. Shrirampur, Dist. Ahmednagar
VERSUS
1. The State of Maharashtra, ...RESPONDENTS
through its Secretary
Revenue and Forest Department,
Mantralaya, Mumbai
2. The Additional Commissioner
Nashik Division, Nashik
3. The Additional Collector,
Ahmednagar
4. The Circle Officer,
Shrirampur, Dist. Ahmednagar
5. The Chief Executive Officer &
Planning Authority, Shrirampur Nagar
Parishad, Shrirampur, Dist. Ahmednagar
6. Balasaheb Ashok Khillari
Age-38 years, Occu-Agri
7. Ravindra Ashok Khillari
Age-35 years, Occu-Agri
Respondent Nos. 6 & 7
R/o. Khillari Vasti, Ward No.6
Shrirampur, Tq. Shrirampur,
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Dist. Ahmednagar
Mr. Ajeet B. Kale, Advocate for the petitioner
Mr. V. R. Dhorde, Advocate for respondent No.5
Mr. K. B. Jadhavar, AGP for respondent/State
Mr. N. B. Khandare, Advocate h/f Mr. D. J. Choudhari, Advocate
for the respondent Nos. 6 & 7
CORAM : KISHORE C. SANT, J.
RESERVED ON : 29/11/2023
PRONOUNCED ON : 01/12/2023
JUDGMENT :
1. Rule. Rule made returnable forthwith. With the
consent of the parties the matter is taken up for final hearing.
2. The petitioner claiming to be owner and possessor of
suit land Gut No.92 has filed this petition challenging the
impugned judgment and order dated 14-12-2018 passed by the
Learned Minister (Revenue), Mantralaya, Mumbai in the case
RTS No.3398/771/Case No.424/J-6 and the authorities under
the Minister. By way of impugned judgment and order a revision
application of the petitioner came to be rejected and the order
passed by the learned Additional Commissioner, Nashik Division,
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Nashik is confirmed. Said order is made subject to out come of
civil proceeding pending between the parties.
3. Facts in short are as under:-
a] Entry standing in the name of petitioner bearing ME
No.14535 was objected by present respondent Nos. 6 and 7 by
filing objections before respondent No.4 i.e. Circle Officer. In
view of the objection the Circle Officer, after hearing the parties,
cancelled the mutation entry carried in favour of the petitioner
on the ground that writ petition No.8091/2012 was filed and
pending before this court. Said order was challenged by filing
the appeal before the Sub-Divisional Officer, Shrirampur bearing
RTS Appeal No.28/2023. The learned Sub-Divisinal Officer
allowed the appeal by order dated 12-05-2014 setting aside the
order passed by the learned Circle Officer. Being aggrieved
thereby respondent Nos. 6 and 7 filed the Second RTS Appeal
No.23/2015 before the learned Additional Collector,
Ahmednagar-respondent No.2. The learned Additional Collector
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allowed the appeal by the judgment and order dated 18-04-
2016. The petitioner, therefore, approached the learned
Additional Commissioner, Nashik by filing RTS Revision No.
185/2016. However, same came to be rejected by judgment and
order dated 06-10-2017. The petitioner thus, approached the
Hon'ble Minister by filing RTS Revision
No.3318/771/Pra.Kra.424/J-6 and the said revision also came
to be rejected. The petitioner, is therefore, before this court.
b] The petitioner claims his right over the suit property
stating that the petitioner was original owner of land Gut
No.108. Said land came to be reserved under the Town Planning
Scheme No. II for Shrirampur city. Said scheme was finalized on
01-01-2000. Out of Gut No. 108, area adm. 74-R was included
in the scheme and was given a final plot No. 11. This plot No. 11
was reserved for garden. Since the land of the petitioner was
reserved for garden he was allotted alternative plot bearing final
Plot No. 17. On the land of the petitioner that was reserved the
name of Shrirampur, Nagar Parishad came to be mutated on
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filing of revision by the learned Chief Officer of Shrirampur
Nagar Parishad.
c] It is the case of the petitioner that though final plot No. 17
was allotted to him, actual possession was not handed over to
him as per the provision of section 72(3) of the Maharashtra
Regional Town Planning Act (Hereinafter referred to as 'the
MRTP Act' ). The order was passed by the learned Arbitrator. In
view of the same, possession of Plot No. 17 was given to the
petitioner on 26-07-2002 under the order passed by the learned
Arbitrator and the said order came to be challenged by
respondent Nos. 6 and 7 before the learned District Court.
However, same came to be rejected by order dated 17-09-1992.
It is thereafter respondent Nos. 6 and 7 filed RCS No. 3/2015 in
the court of Civil Judge, Senior Division, Shrirampur. In the said
suit respondent No.5-the Chief Executive Officer and Planning
Authority, Nagar Parishad is also a party. In the said proceeding
Respondent No.5 admitted that plot No. 17 is allotted to the
petitioner and plot No. 16 is allotted to respondent Nos. 6 and 7.
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4. Learned advocate Mr. Kale for the petitioner submits
that Plot No.180 of respondent Nos. 6 and 7 was re-adjusted
under Section 86 of the MRTP Act and plot was given to him.
However, no actual possession was handed over to him. As
regards respondent Nos. 6 and 7 they have already taken
possession of the land allotted to them. The Municipal Council
has put them in possession. The petitioner and respondents had
filed writ petition against the scheme. However, same was
allowed and SLP was filed by the Municipal Council against that
came to be dismissed and after finalization plots were handed
over. He pointed out that the Municipal Council before the
Minister has clearly submitted that Gut No. 108 was given plot
No. 11 and in the scheme final plot No.7 is given to the said
land. Said land is in possession of Municipal Council. He submits
that the appeal was preferred by respondent Nos.6 and 7 that
was also dismissed. The adjustment of the plot thus attained
finality. From the form No.1 of Town Planning Scheme No. II
(Final) to show that grand-mother of petitioner namely
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Chandabai Lodha was shown as owner of land Gut No.108
which was given final plot No.11, adm. 7400 sq. mts. From the
said form he shown that there is remark that appeal before the
tribunal is dismissed against the award of the arbitrator after it
is signed by the arbitrator to show that adjustment became final.
He pointed out a receipt of possession of land Gut No.108
executed by respondent No.5. A notice was issued to the
respondents for possession directing to hand over the possession
on or before 10-04-2001. It is further seen that an appeal was
filed under Section 74 of the MRTP Act before the learned
District Judge and the same came to be dismissed on 04-02-
1993. He submits that the arbitration award under scheme
became final as the same was not further challenged by the
respondents. He further pointed out that respondents thereafter
issued notice under Section 126 of MRTP Act. He thus submits
that all the parties are in possession of the respective plots as per
the final scheme.
5. From the suit filed by respondent Nos. 6 and 7 it is
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seen that area of the suit land is shown to be 4693 sq. mts. Out
of Gut No.92/3, situated at Shirasgaon which is now given final
plot No.17. He submitted that entire property after finalization
of the scheme vested in the planning authority and the same is
observed in the judgment by the learned Judge in RCS
No.3/2015. However, later on civil suit came to be dismissed as
civil court does not have jurisdiction in view of bar under section
149 of the MRTP Act.
6. On all these background the petitioner submitted
that he has lost possession over the original land. Plot which is
allotted to him in place of his original land is also not given in
actual possession and thus he is still deprived of his property.
Since he is given the suit land, his name should be recorded in
revenue record. He placed reliance on the following judgments
of the Hon'ble Apex Court
1. (2020) 9 SCC 356 in the case of Hari Krishna
Mandir Trust Vs State of Maharashtra and others.
2. 2011 (1) Bom C. R. 293 in the case of Satish
Soma Bhole Vs State of Maharashtra and others.
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7. Mr. Khandare, Advocate for respondent Nos. 6 and 7
submitted that all the authorities except learned Sub-Divisional
Officer have concurrently held against the petitioner. Looking to
the scope of the writ petition under Article 227 this court need
not interfere in the findings of the fact. His submission is that his
mutation entry No. 14535 was sent for certification to the Circle
Officer. However, same was refused. His submission are as
below.
That in 1975 development plan was published. After
completing all the formalities final DP was published on 23-05-
1990. Gut No. 108 belongs to the petitioner and Gut No. 92
belongs to respondents. Both the properties were shown
reserved under the scheme. Gut No.92 was divided into plot
Nos. 24-A, 15-A, 16 and final plot No.17. Thus, plot No.17 is
part and parcel of original land Gut No.92. Gut No. 108 was
given final plot No.7. Final plot No.17 was reserved for stadium
and playground. A writ petition was filed by the petitioner i.e.
3399/2017 and writ petition No.1387/2009 filed by the
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respondent Nos. 6 and 7. The petition No.1837/2009 was
allowed by this court holding the respondent as owner of land
Gut No. 92-3. This court in petition of the respondents clearly
held that reservation made vide notification dated 23-05-2019
of land gut No. 92-3 stood lapsed. Whereas in writ petition
No.3399/2017 filed by the petitioner this court allowed the
petition as well in view of the judgment and order passed in writ
petition No. 1837/2009. Thus reservation on land Gut No.108
also came to be lapsed and thus, there is no question of
petitioner getting alternative land.
8. He further submits that notice issued by respondent
No.5-Chief Officer was not served on respondent Nos.6 and 7.
From the possession receipt dated 27-06-2002 it is seen that the
petitioner took possession of land Gut No.108, including final
Plot No.17 of Town Planning Scheme No.II under Section 88(c)
of the MRTP Act. The petitioner thus received possession of his
original land. Said possession receipt bears signature of the
petitioner. It is the case of the petitioner himself that the
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possession of plot No. 17 was only taken on paper and no actual
possession was handed over. The petitioner himself had taken a
stand in his petition that allotment of plot No.17 was only on
paper. Further it was specific ground that no possession of final
plot No.17 was given to him. This petition was filed on 07-12-
2006. Whereas in the present petition the petitioner claims to be
in possession of plot No.17 since 2000. In the present petition
now a ground is taken that petitioner was given possession on
27-06-2002 which is contrary to stand taken in his earlier
petition. Learned advocate Mr. Khandare thus submits that after
original lands are dereserved under the orders of this court,
there is no question of petitioner being in possession of plot
No.17 which was to be given in lieu of original land belonging to
him.
9. Further submission of Mr. Khandare, learned
advocate that the petitioner submitted an application for
mutation entry No.14535 and the same was forwarded to the
Circle Officer which was rightly rejected. The learned Additional
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Collector and the learned Additional Commissioner have rightly
held in favour of respondents.
10. By giving factual background the learned advocate
further made submission on the legal issues. He submits that
sections 37 & 125 of the MRTP Act are in the nature of
compulsory acquisition. In this case no such procedure is
followed. The Mode of taking possession of land is given in
Section 126. Section 127 provides consequences of non payment
of compensation. i.e. lapsing of reservations. In this case the
petitioner as well as respondent Nos. 6 and 7 invoked the
provision of section 127 of the MRTP Act. Once the petitions
were allowed there was no question of petitioner getting
possession of plot No.17. All the procedure under Town
Planning Act is thus now lapsed. The petitioner without any
locus has thus filed an application for mutation in his name
which is totally illegal. He relied upon the judgments reported
in 1997 BCI 118 in the case of Mr. Rusy Kapadia Vs State of
Maharashtra, (2020) 9 SCC 356 in the case of Hari Krishna
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Mandir Trust Vs State of Maharashtra.
11. The government has filed affidavit-in-reply
supporting the impugned order. It is submitted by the learned
AGP that the Hon'ble Minister has elaborately dealt with all the
points involved in the matter. There are four authorities which
have decided against the petitioner. Considering the scope of
Article 227 this court need not interfere with the findings of the
facts and judgments.
12. Mr. V. R. Dhrode, learned advocate appearing for
Municipal Council submits that the petitioner was put in
possession of final plot. No challenge to the scheme needs to be
entertained now.
13. In rebuttal the learned Advocate Mr. Kale, for the
petitioner submits that in the petition issue is only in respect of
mutation entries. This court need not go to the provision of
MRTP though respondents have argued on the same. The Town
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Planning scheme is formulated under Chapter-V of the Act and
has attained finality. Now going into that issue would be
reopening of the scheme. Arbitrator's order became final as the
appeal against the order of the Arbitrator came to be dismissed.
From reading section 59 and 22 of the MRTP Act it is clear that
reservation is qua the property and not qua the person. As
regards section 127 he submits that notice can be given by any
person 'interested' and such person need not necessarily be a
person claiming to be owner of the property. Whereas the
ownership is declared by the Arbitrator there was no question of
going to the issue of ownership of the land. Scheme became
final after sanctioned by the government and no any authority
has any power to interfere with the same. About writ petition
No.3399/2007 he submitted that the court had not dealt with all
the prayers in petition. Prayers except prayer in view of Section
127 of the MRTP Act in the said petition still survive.
14. After his submission Mr. Khandare, points out that
the affidavit of the Municipal Council before the Hon'ble
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Minister is pointed out by the advocate for the council. However,
affidavit before this court is not shown. The Municipal Council
cannot rely upon the affidavit before the Hon'ble Minister as
now before this court in the affidavit their stand is otherwise
and submits that the petition ultimately deserves to be
dismissed.
15. After considering the submission and looking to the
documents it is clear that even as per the petitioner's case in the
earlier writ petition No.3399/2007 filed by him the possession
of land in question is not actually given to the petitioner and
only paper possession was taken of the land. In the ground also
it is stated that possession of final plot No. 17 was given only on
the paper and the land was reserved for the purpose of play
ground/stadium. Further grounds in the said petition in para
No. 43 it is reiterated that only paper possession is given of plot
No. 17. Now the petitioner is trying to submit that though he
had filed petition for release of his original land he had filed that
petition only as person interested. His further submission that by
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filing the said petition he did not claim owner ship of that plot.
However, fact remains that he had filed the petition for release
of that land under Section 127 of the MRTP Act. This itself
shows that he had prayed for release of their plot Gut No. 108. It
is clearly appearing that he is claiming right over the original
land as well as newly allotted land which as per his own story
was never actually given in his possession. Certainly this court
finds that he cannot pray for taking entry in his name in the
revenue record when he is not in possession of plot No. 17.
16. This court finds substance in the submission of Mr.
Khandare, learned advocate for the respondent that while taking
mutation entry the court and the authorities have to consider all
the facts and the proceedings taken under the MRTP Act while
coming to the conclusion.
17. The petitioner's submission that issue is only as
regards mutation entry and therefore the court need not go to
any other aspect is without any substance. For taking mutation
entry in the record person necessarily has to show his right over
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the property. The authorities in this case have rightly considered
all the aspects. One of the prayers in writ petition No.3399/2007
i.e. prayer 'C' though is in respect of final plot No. 17, however,
same was not considered as per the submission of the petitioner.
Order passed in the said petition is dated 27-07-2012 disposing
off the said petition in view of the judgment passed by this court
in writ petition No.1837/2009 is accepted by the petitioner. It is
recorded in the said order that the petitioner was pressing the
petition only in relation of the notice under Section 127 of the
MRTP Act and other contentions were not looked into and were
kept open for consideration. However, since thereafter the
petitioner has not filed any substantive procedure and
proceedings.
18. In view of above, no case is made out to call for
interference in the writ petition. The authorities have rightly
considered all the aspects. Hence, the petition deserves to be
dismissed and same is hereby dismissed. Rule stands discharged.
19. In view of dismissal of the petition the pending civil
application does not survive and disposed off.
[KISHORE C. SANT, J.]
VishalK/wp4752.19
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