Bombay High Court
Altaf Adamali Pardiwala vs State Of Maharashtra Through The ... on 13 December, 2023
Author: G.S.Patel
Bench: G.S.Patel
2023:BHC-AS:37290-DB Shabnam Altaf Pardiwala & Anr v State of Maharashtra & Ors
904-aswp-10465-2019-J+F.doc
Sumedh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10465 OF 2019
1. Shabnam Altaf Pardiwala,
402, Central View 29 Meghraj Sethi
Street Mumbai 400 008.
2. Ali Akbar Altaf Pardiwala,
402, Central View 29 Meghraj Sethi
Street Mumbai 400 008. ...Petitioners
~ versus ~
1. State of Maharashtra,
through the Secretary,
Urban Development Department,
State of Maharashtra
Mantralaya Building
Mumbai 400001.
2. Director Of Town Planning,
Maharashtra State
Central Office, Old Building
Pune 411001.
3. Lonavala Municipal
Council,
through its Chief Officer
Lonavala Municipal Council
Lonavala 410401. ...Respondents
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
2023.12.13
12:09:20
+0530
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WITH
WRIT PETITION NO. 10466 OF 2019
Altaf Adamali Pardiwala,
402, Central View 29 Meghraj Sethi Street
Mumbai 400 008. ...Petitioner
~ versus ~
1. State of Maharashtra,
through the Secretary,
Urban Development Department,
State of Maharashtra
Mantralaya Building
Mumbai 400001.
2. Director Of Town Planning,
Maharashtra State
Central Office, Old Building
Pune 411001.
3. Lonavala Municipal
Council,
through its Chief Officer
Lonavala Municipal Council
Lonavala 410401. ...Respondents
A PPEARANCES
for the petitioner Mr Vishal Kanade, with Punita
Arora, Puneet Arora, Janhavee
Joshi, Manish Kurkeja, Richa
Shukla i/b Arora & Co
for Respondent No. Mr YD Patil, AGP.
1 -State
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For respondent No. Mr AA Garge.
3
CORAM : G.S.Patel &
Kamal Khata, JJ.
RESERVED ON : 30th October 2023
PRONOUNCED ON : 13th December 2023
ORAL JUDGMENT (Per Kamal Khata J):-
1. Rule. Respondents waive service. Rule made returnable
forthwith.
2. These two Petitions under Article 226 of the Constitution of
India seek a Writ of Mandamus to declare and publish in the Official
Gazette the release of property from reservation on account of
lapsing and to grant permission to the Petitioners to develop the
property in accordance with law.
3. Writ Petition No 10465 of 2019 relates to Plot No.1
admeasuring about 1033.40 sq. mts. Writ Petition No. 10466 of 2019
relates to Plot No.2 admeasuring about 1100.34 sq. mts. Both have a
common Survey No. 120/2, and are situate at H-Ward, Ryewood,
Lonavala ("the said property").
4. The Petitioners purchased the said property from the
erstwhile owner, one Nomanbhai Adamali Bootwala ("Bootwala").
In view of the common background and facts these Petitions are
being disposed of by a common order.
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5. On 28th February 1978, a Development Plan for Lonavala was
notified wherein the said property was reserved for 'shopping
centre'.
6. The Respondent No. 1 published a Declaration of their
intention to acquire the said property on 12th January 1984 under
Section 126(4) of the Maharashtra Regional and Town Planning Act,
1966 ('the MRTP Act') read with Section 6 of the Land
Acquisition Act, 1894 ('the LA Act'). An undated notice inviting
objections was issued under Sections 9(3) and 9(4) for marking,
measuring and planning of the said property under Section 8 of the
LA Act. A meeting was fixed. Though attended by the erstwhile
owners, the meeting could not be held. This was recorded by a
communication dated 23rd March 1984 by Bootwala to Respondent
No.1 but was returned with remark 'not known'. Nothing happened
thereafter.
7. Then on 23rd March 1988, four years later, a letter was
addressed by Bootwala to Respondent No. 3 to release the property
since they had failed to acquire it. In response thereto, by letter
dated 20th August 1988, the Respondent No. 3 forwarded a letter
dated 28th June 1988 stating that the acquisition proceeding was in
progress.
8. On 20th September 1989, Bootwala issued a purchase notice
under Section 127 of the MRTP Act to all Respondents. In
response, the Petitioner was informed that the Purchase Notice was
not applicable in view of letter dated 28th June 1988.
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9. On 1st December 1990, Bootwala submitted plans for
development of the said property to Respondent No. 3 which were
rejected by Respondent No. 3 on 21st January 1991.
10. Three years later, on 31st March 1994, Bootwala called upon
the Respondent No. 3 to release the property from reservation.
Respondent No. 3 failed to release it. Bootwala then raised a
grievance through a letter to the then Chief Minister of State of
Maharashtra seeking intervention. Nothing happened. The idea to
develop was abandoned.
11. Eleven years later, in July 2005, an RTI application was made
by the Petitioner to find out the status of the adjoining plot no. 3. It
was discovered that in view of the purchase notice by its owner the
same was released from reservation. On the other hand, Plot Nos 1
and 2 were not released as the acquisition proceedings were
allegedly still in progress.
12. On 1st November 2005, Bootwala once again submitted plans
for development of the property which were again rejected by
Respondent No.3 on 29th November 2005. Aggrieved by the
rejection, Bootwala filed Writ Petition No. 168 of 2006. During the
pendency of the Writ Petition, Bootwala then sold the property to
the Petitioner by a registered sale deed of 25th April 2007.
13. The Petition was amended, and the Petitioner was substituted
therein by an order dated 20th December 2007. The Petition was
further amended in October 2012. A reply by Respondent No. 2 was
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also filed on 2nd March 2006. But the Petition was dismissed for
want of prosecution on 10th July 2017.
14. In the meantime, on 28th August 2005, by a Second Revised
Development Plan the property was again notified with a
reservation for a 'Shopping Centre'.
15. The Petitioners waited for 10 years. Then once again on 28th
August 2015, they issued a fresh purchase notice under Section 127
of the MRTP Act to all Respondents.
16. Apparently, on 9th September 2015, Respondent No. 3
requested Respondent No.1 to take steps for acquisition. Nothing
happened.
17. On 2nd September 2017, the Petitioners communicated to all
respondents that since the property was not acquired they should
issue the necessary notification in the Official Gazette and release
the property as per Section 127(2) of the MRTP Act. Once again,
the Respondents refused to release the property. Thereafter, several
communications were addressed to the Respondents as also to the
then Chief Minister but to no avail.
18. In the meantime, once again, the Petitioners requested
permission to develop the property by an application on 13th August
2018. The application met with the same fate as earlier. It was
rejected on 25th October 2018.
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19. The Petitioners then filed this Writ Petition on 19th June
2019.
20. The Respondents Nos. 1 and 2 by their Reply on 18th July
2023 and Respondent No.3 by their reply on 24th August 2023 have
not disputed the facts and averments in the Petition as such.
21. The two apparent defences raised are that:
(a) the acquisition of the said lands was initiated by the
declaration under Section 126(4) of the MRTP Act,
and by a declaration on 6th October 1983 under Section
6 of the Land Acquisition Act 1894 that was published
in the Official Gazette on 12th January 1984; and
(b) In view of the judgement of the Apex Court in Girnar
Traders (3) v State of Maharashtra & Ors,1 Section 11 of
the Land Acquisition Act 1894 is not applicable to the
proceedings initiated under the MRTP Act 1966.
22. Mr. Kanade for the Petitioners submitted that the reservation
had lapsed in 1989 itself and the property ought to have been
released when the Respondents failed to take steps to acquire the
property pursuant to the purchase notice dated 20th September
1989. He submitted that evidently no steps for acquisition have been
taken by the Respondents within the statutory period or even after
the 28th August 2015 purchase notice. The prescribed period of two
years expired on 28th August 2017. Thus, the Respondents had
wrongfully rejected the Petitioner's application dated 13th August
1 (2011) 3 SCC 1.
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2018 for development of the property on 25th October 2018.
Reliance was placed on the ratio laid down by the Hon'ble Supreme
Court in Bhavanagar University v Palitana Sugar Mills (P) Ltd & Ors 2
to submit that the subsequent reservation was illegal and
unsustainable in law. He thus prayed for the Petition to be made
absolute with costs.
23. The issue of lapsing is no longer res integra. The contention
of the Respondents that the purchase notice dated 20th September
1989 served subsequent to the declaration dated 12th January 1984
under Section 126(4) of the MRTP Act is not tenable. It is a defence
adopted in desperation.
24. The Apex Court in the case of Girnar Traders (2) v State of
Maharashtra3 in paragraph 31 has held as under:
"31. Section 127 prescribes two time periods. First, a
period of 10 years within which the acquisition of the land
reserved, allotted or designated has to be completed by
agreement from the date on which a regional plan or
development plan comes into force, or the proceedings for
acquisition of such land under the MRTP Act or under the
LA Act are commenced. Secondly, if the first part of
Section 127 is not complied with or no steps are taken,
then the second part of Section 127 will come into
operation, under which a period of six months is
provided from the date on which the notice has been
served by the owner within which the land has to be
acquired or the steps as aforesaid are to be commenced
for its acquisition. The six-month period shall
2 (2003) 1 SCC 111.
3 (2007) 7 SCC 555.
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commence from the date the owner or any person
interested in the land serves a notice on the planning
authority, development authority or appropriate
authority expressing his intent claiming dereservation of
the land. If neither of the things is done, the reservation
shall lapse. If there is no notice by the owner or any person
interested, there is no question of lapsing reservation,
allotment or designation of the land under the development
plan. Second part of Section 127 stipulates that the
reservation of the land under a development scheme shall
lapse if the land is not acquired or no steps are taken for
acquisition of the land within the period of six months from
the date of service of the purchase notice. The word
"aforesaid" in the collocation of the words "no steps as
aforesaid are commenced for its acquisition" obviously
refers to the steps contemplated by Section 126 of the
MRTP Act.
32. If no proceedings as provided under Section 127 are
taken and as a result thereof the reservation of the land
lapses, the land shall be released from reservation,
allotment or designation and shall be available to the
owner for the purpose of development. The availability of
the land to the owner for the development would only be for
the purpose which is permissible in the case of adjacent
land under the relevant plan. Thus, even after the release,
the owner cannot utilise the land in whatever manner he
deems fit and proper, but its utilisation has to be in
conformity with the relevant plan for which the adjacent
lands are permitted to be utilised.
[Emphasis supplied]
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25. Earlier, the Supreme Court had in the case of Municipal
Corpn, Greater Bombay v Hakimwadi Tenants' Assn4 held as under:
11. Section 127 of the Act is a part of the law for acquisition
of lands required for public purposes, namely, for
implementation of schemes of town planning. The statutory
bar created by Section 127 providing that reservation of land
under a development scheme shall lapse if no steps are
taken for acquisition of land within a period of six months
from the date of service of the purchase notice, is an
integral part of the machinery created by which acquisition
of land takes place. The word "aforesaid" in the collocation
of the words "no steps as aforesaid are commenced for its
acquisition" obviously refer to the steps contemplated by
Section 126(1). The effect of a declaration by the State
Government under sub-section (2) thereof, if it is satisfied
that the land is required for the implementation of a
regional plan, development plan or any other town planning
scheme, followed by the requisite declaration to that effect
in the official Gazette, in the manner provided by Section 6
of the Land Acquisition Act, is to freeze the prices of the
lands affected. The Act lays down the principles of fixation
by providing firstly, by the proviso to Section 126(2) that no
such declaration under sub-section (2) shall be made after
the expiry of three years from the date of publication of the
draft regional plan, development plan or any other plan,
secondly, by enacting sub-section (4) of Section 126 that if a
declaration is not made within the period referred to in sub-
section (2), the State Government may make a fresh
declaration but, in that event, the market value of the land
shall be the market value at the date of the declaration
under Section 6 and not the market value at the date of the
notification under Section 4, and thirdly, by Section 127
that if any land reserved, allotted or designated for any
4 1988 Supp SCC 55.
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purpose in any development plan is not acquired by
agreement within 10 years from the date on which a final
regional plan or development plan comes into force or if
proceedings for the acquisition of such land under the
Land Acquisition Act are not commenced within such
period, such land shall be deemed to be released from
such reservation, allotment or designation and become
available to the owner for the purpose of development
on the failure of the Appropriate Authority to initiate
any steps for its acquisition within a period of six
months from the date of service of a notice by the owner
or any person interested in the land. It cannot be doubted
that a period of 10 years is long enough. The Development
or the Planning Authority must take recourse to acquisition
with some amount of promptitude in order that the
compensation paid to the expropriated owner bears a just
relation to the real value of the land as otherwise, the
compensation paid for the acquisition would be wholly
illusory. Such fetter on statutory powers is in the interest of
the general public and the conditions subject to which they
can be exercised must be strictly followed.
[Emphasis Supplied]
26. Now let us consider the decision of Girnar Traders (3) v State
of Maharashtra & Ors,5 referred to by the Respondents. The relevant
paragraphs of the Apex Court's judgment are as under:
"45. The objects and reasons for amendment of Section
127 of the MRTP Act specifically referred to the
hardship to the landowners, stated in the judgment of
this Court in Girnar Traders (2) v. State of Maharashtra
[(2007) 7 SCC 555] [hereinafter referred to as "Girnar
Traders (2)"], pertaining to indefinite waiting for release
5 2011 3 SCC 1.
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of their respective lands because of inaction on the part
of the Planning Authority in acquisition of their lands.
The legislature was obviously aware of the provisions of
Section 11-A of the Land Acquisition Act which
permitted lapse of entire acquisition proceedings after
the prescribed period. Still, the legislature opted to
amend Section 127 of the MRTP Act in the manner as it
has been amended. The intention appears to be to
remove the doubt, if any, created by the unamended
provisions of Section 127 of the MRTP Act with regard
to application of Section 11-A of the Central Act to the
State Act. Once the State Legislature has, by amendment,
restricted the application of default clause only in the
situations covered under Sections 126(2) and 126(4) of the
State Act respectively, it will then be impermissible to read
Section 11-A of the Land Acquisition Act into the language
of Section 126(2) of the State Act. The amendment ex
facie appears to be to avoid undue hardship to the
owners of the land on the one hand while on the other,
exclusion of the underlined [Ed.: Herein italicised.]
portion supra especially the words "under the Land
Acquisition Act", suggests the legislative intent to
complete all proceedings within the framework of the
MRTP Act."
[Emphasis Supplied]
27. Thus, if the land is not acquired as per the provision of
Section 126(3) of the MRTP Act within the statutory period, the
reservation would lapse. That being so, following the ratio in
Bhavnagar University (supra) and the aforesaid judgements, in our
view the subsequent reservation would be null and void.
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28. In view of the above, we are unable to agree with the
Respondent's contention that on account of the reservation in the
Second Revised Development Plan notified on 29th June 2005 and
which came into effect only from 27th August 2005, the purchase
notice served under Section 127 of the MRTP Act on 20th
September 1989 and 28th August 2015 was of no effect. Section
126(3) of the MRTP Act contemplates acquisition of the property as
a step to be taken and not a mere declaration within the stipulated
period.
29. Now in paragraphs 9(y) and (z) of the Petition it is averred
that if Respondent No. 3 did not deposit the compensation amount
of Rs.78215.70 along with measurement fees of Rs 50 plus estimated
service charges of Rs 2280 before 15th September 1986 the
acquisition would lapse. In furtherance to the said communication,
by another communication dated 15th December 1986 the SLAO
informed Respondent No.3 that the acquisition proceedings had
lapsed for non-deposit of the compensation amount.
30. In this back drop, paragraph 9 of the Affidavit in Reply by one
Pandit Khandu Patil is pertinent:
"9. I state that the Lonavala Municipal Council is willing to
acquire the land but due to insufficient funds LMC need to
approach for the funds from Government after that the
Lonavala Municipal council shall take the necessary steps as
early as possible."
31. Moreover, the Petitioner has averred in paragraph 9(h) that
the erstwhile owner had by a letter dated 23rd March 1988 to the
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Respondent No.3 stated that the Plot No. 3 in Survey No. 120/2
belonging to Mrs. Dordi which was under the same reservation was
released by Respondent No.3 and permission for residential
development was granted. It would clearly establish that the suit
property was not acquired for want of funds.
32. Neither the Respondent Nos. 1 to 3 have denied these facts,
nor have they responded to these averments.
33. A simple calculus would show that 45 years have passed now
since the Petitioners' said property was reserved. This right of a
property owner was exactly what the Apex Court wanted to
safeguard, and it did clarify in Girnar Traders 3 (supra) that the
owner could not be deprived of his rights to the property after the
statutory period ended as contemplated under the MRTP Act.
34. The relevant paragraphs in Girnar Traders (3) v State of
Maharashtra, are as under:
"97. Section 125 of the MRTP Act introduces a legal
fiction as it requires that reservation and designation of land
under the plan shall be deemed to be a public purpose
within the meaning of the definition of the Land
Acquisition Act. Section 126 of the MRTP Act is the
effective provision which refers to the Land Acquisition
Act.
98. In terms of Section 126(1), the land can be acquired
for public purpose specified in the plan. It gives right to
acquire even after publication of a draft regional plan.
Whenever a land is required or reserved for any public
purpose specified in any plan or scheme under the MRTP
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Act, the authority concerned may, with the exception of the
provisions of Section 113-A of the State Act i.e. land
designated under the Act connected with the development
of the new town, acquire the land by different modes i.e.
(a) by paying an amount agreed (by agreement);
(b) in lieu of any such amount by granting the right
specified under Section 126(1)(b); and
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act.99.
Section 126(2) lays down the procedure, primarily, as
to how the application made under Section 126(1)(c) is to be
dealt with by the State Government and if it is satisfied, to
make a declaration in the Official Gazette to the effect that
the land is needed for a public purpose, in the manner
provided in Section 6 of the Land Acquisition Act. Section
126(3) deals with the procedure to be followed after
declaration contemplated under Section 126(2) has been
published. The Collector has to proceed for acquisition
of the land under the Land Acquisition Act and the
provisions of that Act shall apply for acquisition.
Market value of the land has to be determined with
reference to the date specified in clauses (i) to (iii) of
sub-section (3) of Section 126. In terms of proviso to
Section 126(2) if the declaration is not made within one
year from the date of publication of the draft regional
plan or any other plan or the scheme, as the case may be,
the authority loses the right to make such a declaration.
Exception to this is contemplated under Section 126(4) that
despite the above consequences, the Government still has
the right to make a fresh declaration for acquisition of the
land subject to the modification that market value of the
land shall be the market value at the date of declaration in
the Official Gazette made for acquiring the land afresh.
100. Section 127 of the MRTP Act which deals with
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lapsing of reservation under this Act stood amended vide
Maharashtra Amendment Act 16 of 2009. We have already
reproduced above the amended and unamended provisions
of Section 127 of the MRTP Act. It is noteworthy that in
the unamended provision of Section 127, it was
contemplated that if the proceedings for acquisition of
such land under this Act or under the Land Acquisition
Act are not commenced within such period, the
owner/interested person of any land may serve a notice
on the Planning Authority and if within six months from
the date of the service of such notice, the land was not
acquired or no steps were taken, the land shall be
deemed to be released from such reservation.
109. Besides the MRTP Act being a self-contained
code, these are enactments which, apparently, are
dissimilar in their content and application. The
provisions of Section 127 of the MRTP Act were
amended long after the amendment of the Land
Acquisition Act by Central Act 68 of 1984. The
legislature was fully aware of the entire matter including
hardship of the landowners. The Statement of Objects
and Reasons for amendment of Section 127 of the MRTP
Act conveys intent antipodal to that sought to be put
forward by the appellants, that Section 11-A of the Land
Acquisition Act would be attracted. Section 11-A was in
existence at the time of amendment in 2009 of the MRTP
Act and if it was intended to be applied to the MRTP Act
there was hardly any need to amend Section 127 of the
MRTP Act in the manner in which it was done. If the
intention of the legislature was to permit lapsing of
acquisition, in that event provisions of Section 11-A of the
Land Acquisition Act, per se, would have achieved the
purpose. The 2009 Amendment to the State Act
restricted even lapsing of the reservation or designation
only if there was default in compliance with the
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provisions of Sections 126(2) and 126(4) of the MRTP
Act. General reference to acquisition under the Land
Acquisition Act was deleted as it was never intended to
be read as a part of the State Act. Thus, the State
Legislature in its wisdom restricted the consequences
only to lapsing of reservation.
[Emphasis supplied]
35. In the present case, it is apparent that there was a default in
compliance with the provisions of Sections 126(2) and 126(4) of the
MRTP Act. After the notification in 1984, no steps were taken to
acquire the land as contemplated in Section 126(3) of the MRTP
Act. Communications amongst the Respondents clearly evince that
they were aware that the reservation had lapsed. Yet they failed to
release the said property and thus deprived the erstwhile owners
and now the Petitioners of their right to develop the property for
more than six years of even after the second purchase notice issued
in 2015.
36. This leads us to an inescapable conclusion that the
Respondents failed in performing their duty. It is not the law that a
property can be held under reservation without acquisition for
almost half a century, and in all that time, the owner is denied both
compensation and the right to enjoy the fruits of development. The
erstwhile owner made several requests and visits to the Respondent
even raised his grievance with the Chief Minister but to no avail.
Finally, he came to this Court. He then sold the property. The
Petitioners too have come to Court. The Respondents have misread
and misinterpreted the law.
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37. The Petition is made absolute in terms of prayer clauses a and
b which are as follows:
(a) This Hon'ble Court be pleased to declare that the
reservation in respect of the said Property under the II
(Revised) Development Plan for Lonavala notified on or
about 28th August 2005 is illegal, non-est and void ab initio
and is not applicable to the said Property;
(b) This Hon'ble Court be pleased to declare that the
reservation of shopping center in respect of the said Property
has lapsed and the said Property can be developed in
accordance with applicable laws.
38. Rule is made absolute accordingly. No costs.
39. The State Government to notify the lapsing of the reservation
by an order to be published in the Official Gazette as per Section
127(2) of the MRTP Act on or before 20th February 2024.
40. All concerned to act on the authenticated copy of this
Judgment.
(Kamal Khata, J) (G. S. Patel, J)
13th December 2023
