Bombay High Court
Trilok Singh Pahlajsingh Rajpal vs Municipal Corporation For ... on 30 October, 2023
Bench: G.S. Patel, Kamal Khata
913-OSWPL-25499-2023.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 25499 OF 2023
Trilok Singh Pahlajsingh Rajpal ...Petitioner
Versus
Municipal Corporation of Greater Mumbai & Ors ...Respondents
Dr Milind Sathe, Senior Advocate, with Rubin Vakil, Dimple Vora
& Sharvari Joshi, i/b M/s Markand Gandhi & Co, for the
Petitioner.
Mr Himanshu Takke, AGP, for the Respondent-State.
Ms Rupali Adhate, for the Respondent-MCGM.
Mr Yogesh Parte, Sub-Engineer, Development Planning Department,
H/W Ward, MCGM, is present.
CORAM G.S. Patel &
Kamal Khata, JJ.
DATED: 30th October 2023
Digitally
PC:-
signed by
ASHWINI
ASHWINI GAJAKOSH
GAJAKOSH Date:
2023.10.31
09:35:56
+0530
1. This continued inaction of the State Government is
unacceptable from any perspective.
2. Rule, returnable forthwith in view of the detailed, reasoned
Division Bench order of 16th September 2022. A copy of that order
is at page 29 at Exhibit "A". One of us (Kamal Khata J) was a
member of the Bench that passed the order. The matter was
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evidently argued at length. Judgment was reserved on 25th July
2022 and pronounced by Kamal Khata J on 16th September 2022.
The prayers in that Petition are summarised in paragraph 3 at page
31 and are also reproduced at page 8 of the Petition. Paragraph 3 at
page 31 reads as follows:
"3. The petitioners have also prayed for a writ of
mandamus for an order and direction to respondent Nos. 1
to 3 and 5 to take all necessary steps to amend the necessary
records including Development Plan sanctioned on 7th May
1992 and quashing the acquisition proceedings commenced
before respondent No.4 pursuant to the Application dated
13th February 2008 in respect of the said land."
3. The prayers in the previous Writ Petition, i.e., prayer clauses
(a), (b), (c), (c)(i) and (c)(ii) at pages 8 to 10 of the Petition read as
follows:
"(a) That this Hon'ble Court be pleased to issue a writ of
Mandamus, writ in the nature of Mandamus or any
appropriate writ, order or direction, declaring that
with effect from 22nd February 2008 the said
property viz. all that piece and parcel of land bearing
CTS No.F/189, F/190, F/191, F/192 corresponding
to Final Plot No.646, TPS III, Bandra admeasuring
about 900 sq. yards equivalent to 752.49 sq. meters
of thereabouts along with the structures standing
thereon, is released from Reservation made under
the Development Plan sanctioned on 7th May 1992;
(b) That this Hon'ble Court be pleased to issue a writ of
mandamus or a writ of mandamus or any other
appropriate writ, order and direction, directing
Respondent Nos. 1 to 3 and 5, their servants, officers,
employees and agents to take all necessary steps to
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amend the necessary records including the
Development Plan sanctioned on 7th May 1992 in
respect of the said property viz. all that piece and
parcel of land bearing CTS No.F/189, F/190, F/191,
F/192 corresponding to Final Plot No.646, TPS III,
Bandra admeasuring about 900 sq. yards equivalent
to 752.49 sq. meters of thereabouts along with the
structures standing thereon, by releasing the same
from Reservation;
(c) That this Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or
any other appropriate writ, order and direction
quashing the acquisition proceedings commenced
before Respondent No. 4 pursuant to the Application
dated 13th February 2008 in respect of the said
property viz. all that piece and parcel of land bearing
CTS No.F/189, F/190, F/191, F/192 corresponding
to Final Plot No.646, TPS III, Bandra admeasuring
about 900 sq. yards equivalent to 752.49 sq. meters
of thereabouts along with the structures standing
thereon;
(c)(i) This Hon'ble Court be pleased to issue a Writ of
Certiorari or any other appropriate writ or order in
the nature of Certiorari in the Article 226 calling for
records and proceedings and pertaining to the
notification 27th July, 2018 and after examining the
validity and legality and propriety thereof the same
may be quashed and set aside.
(c)(ii) This Hon'ble Court be pleased to direct the
Respondent No. 1 to delete the reservation on the
said property under the new Development Plant
2034."
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4. After a detailed consideration of the applicable law and the
facts, this Court inter alia held in paragraphs 55 to 57 as follows:
"55. In our view, there is no merit in any of the
submissions made by the learned senior counsel for the
Municipal Corporation. The submissions made by the
learned senior counsel for the Municipal Corporation are
contrary to the principles laid down by the Supreme Court
and this Court in a catena of decisions referred to the
aforesaid judgments which are binding on this Court.
56. We accordingly pass the following orders:-
: O R D E R:
(a) The Writ Petition deserves to be allowed and
is accordingly allowed in terms of prayer
clauses (a) to (c) & (c)(i) & (c)(ii).
(b) The State Government is directed to notify
the lapsing of the reservation by an order to
be published in the Official Gazette as per
the requirement of Section 127(2) of the
MRTP Act which shall be done as
expeditiously as possible and preferably
within a period of six months from today.
Thereafter, if fresh plans for building
permission are submitted by the
petitioners, then the same be considered
expeditiously.
57. Rule is accordingly made absolute. No order as to
costs."
(Emphasis added)
5. An application for stay by the Municipal Corporation was
rejected. The State Government has not carried the matter higher.
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913-OSWPL-25499-2023.DOC
There is no order of the Supreme Court obtained by either the
MCGM or by the State Government.
6. The present prayers in the Petition really seek
implementation of this order. Prayer clauses (a) and (b) at pages 18
to 20 of the Petition read as follows:
"(a) This Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction directing the
Respondents to forthwith publish an order in the Official
Gazette notifying the lapsing of the reservation of
Municipal Primary School in respect of the said property
bearing the piece and parcel of land bearing CTS No.
F/189, F/190, F/191, F/192 corresponding to Final Plot
No.646, TS III, Bandra admeasuring about 900 sq. yards
equivalent to 752.49 sq. meters of thereabouts, in
accordance with the provisions of Section 127(2) of the
MRTP Act and paragraph 56(b) of the said Judgment and
Order 16th September, 2022 passed by this Hon'ble Court
in Writ Petition No.2450 of 2016;
(b) This Hon'ble Court be pleased to issue a writ of
mandamus or a writ in the nature of mandamus or any other
appropriate writ, order or direction directing the
Respondents to delete the lapsing of the reservation of
Municipal Primary School in respect of the said property
being the piece and parcel of land bearing CTS No. F/189,
F/190, F/191, F/192 corresponding to Final Plot No.646,
TS III, Bandra admeasuring about 900 sq. yards equivalent
to 752.49 sq. meters of thereabouts, in accordance with the
directions contained in paragraph 56(a) of the said
Judgment and Order dated 16th September, 2022 passed by
this Hon'ble Court in Writ Petition No. 2450 of 2016."
30th October 2023
913-OSWPL-25499-2023.DOC
7. In our view, this Petition could as well have been in the form
of an Interim Application in the previously disposed of Petition
simply seeking implementation of the 16th September 2022
judgment and the resultant order. But this substantive Writ Petition
has been filed and there surely cannot be any impediment, there
being no appeal against that final judgment and order, to the grant of
relief as sought.
8. Mr Takke on behalf of the Government seeks several months'
time to consider the issue. There is nothing to consider. Judgment
on the matter has already been pronounced. It certainly cannot be
"considered" by the State Government. A year and two months
have already passed. The State Government was to act within six
months. Its failure to do so is conceivably contempt of an order of
this Court. But we will refrain from making an order in contempt
and instead make Rule absolute in terms of prayer clauses (a) and
(b). The necessary Gazette Notification notifying the lapsing of the
reservation in question is to be issued no later than by 6th November
2023.
9. List the matter for compliance on 8th November 2023.
(Kamal Khata, J) (G. S. Patel, J)
30th October 2023
