Bombay High Court
Ratnagiri Nagar Parishad Thr. The Chief ... vs Madhukar Shankar Redij And Ors on 30 April, 2025
2025:BHC-AS:22138
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Iresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL ST NO. 2061 OF 2019
WITH
CIVIL APPLICATION NO. 190 OF 2019
IN
SECOND APPEAL ST NO. 2061 OF 2019
Ratnagiri Nagar Parishad .....Appellant
Thr. The Chief Officer Ratnagiri
Municipal Council Ratnagiri
Vs.
Madhukar Shankar Redij and ors .....Respondents
Mr. Rakesh Bhatkar a/w Mr. Mohan N. Devkole and Ms. Smita Samel
Advocate for the Appellant
Dr. Uday Warunjikar a/w Ms. Sakshi Inamdar and Mr. Hrishikesh
Nabar for respondent no. 1
CORAM : GAURI GODSE, J.
DATE : 30th APRIL 2025
JUDGMENT:
1. Heard learned counsel for the parties. This appeal is preferred
by defendant no. 3 to challenge the concurrent judgments and decrees
granting a declaration that the reservation on the suit property is
deemed to have lapsed from 1st September 2012.
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2. The appellant is the acquiring body for the reservation of the
primary school on the property owned by the respondent no. 1 -
plaintiff. Since steps were not taken to acquire the property reserved
as per the sanctioned Town Planning Scheme, notice under Section
127 of The Maharashtra Regional and Town Planning Act ('the said
Act') was served. There was no compliance with the requirement for
acquiring the reserved land as contemplated under Section 127 of the
said Act; hence, the suit was filed. Both courts concurrently held that,
due to the lack of any steps taken to acquire the suit land, the
reservation had lapsed; thus granted the declaration as prayed for by
the plaintiff.
3. Learned counsel for the appellant submits that the town planning
scheme of 1975 was approved, and the last approval to the revised
scheme was granted by the State Government in 2005, which came
into effect from 27th June 2005. He, therefore, submits that there was
no lapsing of the reservation for the primary school in respect of the
suit land. Learned counsel for the appellant submits that the Civil
Court's jurisdiction is barred in view of Section 149 of the said Act. He,
therefore, submits that in view of the bar of the Civil Court's
jurisdiction, the suit filed for declaration and injunction could not have
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been decreed by the Civil Court.
4. Learned counsel for the appellant further points out that after the
notice under Section 127 was issued, immediate steps were taken by
the defendant no. 3, and a letter was issued to the State Government
for initiating acquisition proceedings. Learned counsel for the appellant
relies upon the relevant pleadings in the written statement to support
his submissions that after the receipt of notice dated 2 nd September
2011, defendant no. 3 issued a letter dated 25 th June 2012 requesting
the State Government to initiate acquisition proceedings. He,
therefore, submits that within twelve months of the issuance of notice
under Section 127, proceedings are initiated by defendant no. 3 for
acquisition, and thus, the reservation would not lapse.
5. To support his submissions regarding the Civil Court's
jurisdiction, the learned counsel for the appellant relied upon the
decisions of this Court in the case of Babar Sher Khan and Ors Vs.
Municipal Corporation of Brihanmumbai and anr 1, Bales Sardara
Paracha Vs. Municipal Corporation of Greater Bombay and Anr 2
Learned counsel for the appellant also relied upon the decision of this
1 2008(2) Bom. C.R. 335
2 2005(4) Bom C.R. 577
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Court in the case of Prafulla C. Dave and Ors Vs. Municipal
Commissioner and Ors3 to support his submissions that the relevant
date for deciding the lapsing of the reservation would be the approval
of the last part of the revised development plan. He submits that the
decision of this Court is approved by the Hon'ble Apex Court. He,
therefore, submits that the relevant date in the present case for
considering the lapsing of the reservation would be the date of the
approval of the last part of the revised plan. Learned counsel for the
appellant, therefore, submits that the aforesaid grounds would raise
substantial questions of law on the Civil Court's jurisdiction and the
relevant date to be considered for lapsing of the reservation in view of
Section 127 of the said Act.
6. Learned counsel for respondent no. 1-original plaintiff points out
the relevant pleadings in the written statement of defendant no. 3. He
submits that, as per the dates pleaded by defendant no. 3, the
reservation of primary school for an area of 22 Ares in the revised plan
was approved with effect from 21 st June 2000. He submits that the first
reservation in respect of the suit property was of the year 1975 and the
revised plan came into effect on 21 st June 2000 even as per the
3 2007(6) Bom C.R. 520
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pleadings of defendant no. 3. He, therefore, submits that the notice
was issued on 2nd September 2011 under Section 127 of the said Act.
Learned counsel for the plaintiff submits that initially, the suit was filed
for the declaration of the lapsing of the reservation. However, in view
of the amended provision of Section 127, the suit was withdrawn as
premature, with liberty to file a fresh suit. As per the liberty granted, the
present suit was filed. He submits that the letter dated 24 th June 2012
by defendant no. 3 to the State Government would not amount to
sufficient compliance as contemplated under Section 127, read with
sub-section (2) or (4) of Section 126 of the said Act. He, therefore,
submits that in view of the admitted dates with regard to the original
reservation, the approval of the revised plan and the notice issued by
the plaintiff, both the Courts have concurrently held that in view of
Section 127 and the notice issued by the plaintiff, the reservation has
lapsed.
7. In response to the preliminary objection raised by the appellant
regarding bar of the civil court's jurisdiction, learned counsel for the
plaintiff submits that in view of the well-settled legal principles, the Civil
Court's jurisdiction is not barred in view of Section 149. To support his
submissions, learned counsel relied upon the following decisions.
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Shiv Kumar Chadha Vs. Municipal Corporation of Delhi
and others4, Nagarpalika Sawantwadi, Through The Chief
Officer, Sawantwadi Nagarpalika Vs. Dinanath Rajaram
Ballal and Ors5, Raja Bahadur Motilal Poona Mills Ltd. and
Another Vs. State of Maharashtra and others 6, Rita
Mahesh Dadarkar and Others Vs. Commissioner
Brihanmumbai Mahanagar Palika, Greater Bombay and
ors7 and Kishor S/o Ramalu @ Rambhau Telang Vs. The
Municipal Commissioner, Nagpur Municipal Corporation
and ors8.
8. I have considered the submissions made by both parties. The
relevant dates regarding the original reservation and the approval of
the revised plan are not in dispute. The plaintiff's land was first
reserved as per the Town Planning Scheme approved on 12 th
December 1974, which came into effect on 13 th January 1975. The
revised plan was approved on 27th April 2000, which came into effect
from 21st June 2000. As per the revised plan that came into effect from
21st June 2000, 22 Ares land of the plaintiff's property was reserved for
4 (1993) 3 Supreme Court Cases 161
6 2002 SCC OnLine Bom 679
7 2017 SCC OnLine Bom 8606
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a primary school. Hence, the arguments raised on behalf of the
appellant regarding approval of the part development on 17 th June
2005 would not be relevant to decide the plaintiff's contention
regarding lapsing of the reservation that came into effect from 21 st
June 2000.
9. The relevant provision under the said Act that provides for the
lapsing of the reservation is Section 127, which reads as under;
127. (1) If any land reserved, allotted or designated for any
purpose specified in any plan under this Act is not acquired
by agreement within ten years from the date on which a
final Regional Plan, or final Development Plan comes into
force or, if a declaration under sub-section (2) or (4) of
section 126 is not published in the Official Gazette within
such period, the owner or any person interested in the land
may serve notice, alongwith the documents showing his title
or interest in the said land, on the Planning Authority, the
Development Authority or, as the case may be, the
Appropriate Authority to that effect; and if within twenty-four
months from the date of the service of such notice, the land
is not acquired or no steps as aforesaid are commenced for
its acquisition, the reservation,allotment or designation shall
be deemed to have lapsed, and thereupon, the land shall
be deemed to be released from such reservation, allotment
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or designation and shall become available to the owner for
the purpose of development as otherwise, permissible in the
case of adjacent land under the relevant plan.
(2) On lapsing of reservation, allocation or designation of
any land under sub-section(1), the Government shall notify
the same, by an order published in the Official Gazette.
10. Thus, as per sub-section (1) of Section 127, within 10 years
from the date of the development plan coming into force, if the land is
not acquired by an agreement or if a declaration under sub-section (2)
of (4) of Section 126 is not published in the official gazette, the owner
or any interested person in the land is entitled to serve a notice to that
effect along with relevant documents showing his title or interest in the
land to the appropriate authority. Such notice is commonly known as
"the purchase notice". The sub-section (1) further provides that within
twenty four months from the date of service of such notice, if the land
is not acquired or no steps are commenced for its acquisition, the
reservation shall be deemed to have lapsed and the land shall be
deemed to be released from such reservation. Therefore, the
proceedings required to be initiated within twenty four months from the
date of service of such notice is contemplated under sub-section (2) or
(4) of Section 126. Section 126 reads as under;
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"126. Acquisition of land required for public purposes
specified in plans:
(1) When after the publication of a draft Regional Plan, a
Development or any other plan or town planning scheme,
any land is required or reserved for any of the public
purposes specified in any plan or scheme under this Act at
any time, the Planning Authority, Development Authority, or
as the case may be, any Appropriate Authority may, except
as otherwise provided in section 113A acquire the land,-
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner
or the lessee, subject, however, to the lessee paying the
lessor or depositing with the Planning Authority,
Development Authority or Appropriate Authority, as the case
may be, for payment to the lessor, an amount equivalent to
the value of the lessor's interest to be determined by any of
the said Authorities concerned on the basis of the principles
laid down in the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013), Floor Space Index
(FSI) or Transferable Development Rights (TDR) against the
area of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space
Index or Transferable Development Rights against the
development or construction of the amenity on the
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surrendered land at his cost, as the Final Development
Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for
acquiring such land under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 (30 of 2013),
and the land (together with the amenity, if any so developed
or constructed) so acquired by agreement or by grant of
Floor Space Index or additional Floor Space Index or
Transferable Development Rights under this section or
under the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013), as the case may be,
shall vest absolutely free from all encumbrances in the
Planning Authority, Development Authority, or as the case
may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government
is satisfied that the land specified in the application is
needed for the public purpose therein specified, or if the
State Government (except in cases falling under section 49
and except as provided in section 113A itself is of opinion
that any land included in any such plan is needed for any
public purpose, it may make a declaration to that effect in
the Official Gazette, in the manner provided in section 19 of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013
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in respect of the said land. The declaration so published
shall, notwithstanding anything contained in the said Act, be
deemed to be a declaration duly made under the said
section:
Provided that, subject to the provisions of sub-section (4),
no such declaration shall be made after the expiry of one
year from the date of publication of the draft Regional Plan,
Development Plan or any other Plan, or Scheme, as the
case may be.
(3) On publication of a declaration under the said section
19, the Collector shall proceed to take order for the
acquisition of the land under the said Act; and the provisions
of that Act shall apply to the acquisition of the said land, with
the modification that the market value of the land shall be,-
(i) where the land is to be acquired for the purposes of a
new town, the market value prevailing on the date of
publication of the notification constituting or declaring the
Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority, the market value prevailing on the date
of publication of the notification of the area as an
undeveloped area; and
(iii) in any other case the market value on the date of
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publication of the interim development plan, the draft
development plan or the plan for the area or areas for
comprehensive development, whichever is earlier, or as the
case may be, the date of publication of the draft Town
Planning Scheme :
Provided that, nothing in this sub-section shall affect the
date for the purpose of determining the market value of land
in respect of which proceedings for acquisition commenced
before the commencement of the Maharashtra Regional
and Town Planning (Second Amendment) Act, 1972:
Provided further that, for the purpose of clause (ii) of this
sub-section, the market value in respect of land included in
any undeveloped area notified under sub-section (1) of
section 40 prior to the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,
1972 shall be the market value prevailing on the date of
such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and sub-section (3), if a declaration,] is not
made within the period referred to in sub-section (2) (or
having been made, the aforesaid period expired on the
commencement of the Maharashtra Regional and Town
Planning (Amendment) Act, 1993, the State Government
may make a fresh declaration for acquiring the land under
the provisions of the Right to Fair Compensation and
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Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (30 of 2013), in the manner provided
by sub-sections (2) and (3) of this section, subject to the
modification that the 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."
11. In the present case, at the relevant time in the year 2011-2012,
the period for taking steps to acquire the land after service of the
purchase notice under Section 127 was twelve months. Except for the
amendment to Section 127 for substituting the period from twelve
months to twenty four months, the rest of the Section remains the
same. Section 126, as reproduced in the above paragraph, is the
amended section with various amendments. To better understand the
unamended Section 126 at the relevant time, the same is reproduced
below;
126. Acquisition of land required for public purposes specified
in plans.
(1) When after the publication of a draft Regional Plan, a
Development or any other plan or town planning scheme,
any land is required or reserved for any of the public
purposes specified in any plan or scheme under this Act at
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any time the Planning Authority, Development Authority, or as
the case may be, any Appropriate Authority may, except as
otherwise provided in Section 113A acquire the land,-
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner or
the lessee, subject, however, to the lessee paying the lessor
or depositing with the Planning Authority, Development
Authority or Appropriate Authority, as the case may be, for
payment to the lessor, an amount equivalent to the value of
the lessor's interest to be determined by any of the said
Authorities concerned on the basis of the principles laid
down in the Land Acquisition Act, 1894, Floor Space Index
(FSI) or Transferable Development Rights (TDR) against the
area of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space Index
or Transferable Development Rights against the
development or construction of the amenity on the
surrendered land at his cost, as the Final Development
Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894,
and the land (together with the amenity, if any, so developed
or constructed) so acquired by agreement or by grant of
Floor Space Index or additional Floor Space Index or
Transferable Development Rights under this section or
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under the Land Acquisition Act, 1894, as the case may be,
shall vest absolutely free from all encumbrances in the
Planning Authority, Development Authority, or as the case
may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government
is satisfied that the land specified in the application is
needed for the public purpose therein specified, or if the
State Government (except in cases falling under section 49
and except as provided in section 113A) itself is of opinion
that any land in any such plan is needed for any public
purpose, it may make a declaration to that effect in the
Official Gazette, in the manner provided in section 6 of the
Land Acquisition Act,1894, (1 of 1894) in respect of the said
land. The declaration so published shall, notwithstanding
anything contained in the said Act, be deemed to be a
declaration duly made under the said section:
Provided that, subject to the provisions of sub-section (4), no
such declaration shall be made after the expiry of one year
from the date of publication of the draft Regional Plan,
Development Plan or any other Plan, or Scheme, as the
case may be.
(3) On publication of a declaration under the said section 6,
the Collector shall proceed to take order for the acquisition of
the land under the said Act; and the provisions of that Act
shall apply to the acquisition of the said land, with the
modification that the market value of the land shall be,-
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(i) where the land is to be acquired for the purposes of a
new town, the market value prevailing on the date of
publication of the notification constituting or declaring the
Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority, the market value prevailing on the date of
publication of the notification of the area as an undeveloped
area; and
(iii) in any other case the market value on the date of
publication of the interim development plan, the draft
development plan, or the plan for area or areas for
comprehensive development, whichever is earlier, or as the
case may be, the date or publication of the draft town
planning scheme:
Provided that, nothing in this sub-section shall affect the date
for the purposes of determining the market value of and in
respect of which proceedings for acquisition commenced
before the commencement of the Maharashtra Regional and
Town Planning (Second Amendment) Act, 1972 (Mah.XI of
1973):
Provided further that, for the purpose of clause (ii) of this
sub-section, the market value in respect of land included in
any undeveloped area notified under sub-section (1) of
section 40 prior to the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,
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1972, (Mah. XI of 1973), shall be the market value prevailing
on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and sub-section (3), if a declaration is not
made within the period referred to in sub-section (2) or
having been made, the aforesaid period expired at the
commencement of the Maharashtra Regional and Town
Planning (Amendment) Act, 1993, the State Government
may make a fresh declaration for acquiring the land under
the Land Acquisition Act, 1894 (I of 1894), in the manner
provided by sub-sections (2) and (3) of this section, subject
to the modification that the 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.
12. Thus, after the reservation comes into force, two contingencies
are contemplated. First, acquisition of the land through private
negotiation, which involves an agreement. Second, by publication of a
declaration under sub-section (2) or (4) of Section 126, in the official
gazette. If such action is not taken and on expiry of ten years from the
date of reservation coming into force, a purchase notice as
contemplated under sub-section (1) of Section 127 is served upon the
Planning Authority, the Development Authority or the Appropriate
Authority and within the stipulated time, if the land is not acquired and
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steps are not commenced for publication of a declaration under sub-
section (2) or (4) of Section 126, in the official gazette, the reservation
shall lapse. Thus, after service of the purchase notice, if necessary
compliance as contemplated under sub-section (1) of Section 127 is
not done by the Planning Authority, the Development Authority or the
Appropriate Authority, there is a deeming provision for lapsing of the
reservation. Therefore, if there is non-compliance by the Planning
Authority, the Development Authority or the Appropriate Authority as
contemplated under sub-section (1) of Section 127 within the
stipulated time, and in the manner provided for acquisition, the
reservation shall automatically come to an end and the reserved land
shall be available to the owner for development.
13. The steps to be taken for acquiring the land within the stipulated
time are also provided in sub-section (1) of Section 127. Therefore, to
continue the reservation, the language of the provision warrants
acquisition by an agreement or commencement of action to publish a
declaration under sub-section (2) or (4) of Section 126 to acquire the
land. The commencement of steps to acquire would mean satisfaction
of the State Government that the reservation is needed for the
specified public purpose, and it is declared in the official gazette as
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contemplated in sub-section (2) or (4) of Section 126.
14. In the present case, the service of the purchase notice is not in
dispute. Except for issuing a letter dated 25 th June 2012 by defendant
no. 3 to the State Government, admittedly, no steps have been taken
to acquire the suit property. Admittedly, the proposal of defendant no.3
for taking over the reserved area by private negotiations was never
finalized. Thus, in view of the aforesaid provisions and the undisputed
facts as recorded above, the reservation has lapsed and the land is
available to the owner for development. Hence, no fault can be found
in the findings recorded by both the Courts to declare that the
reservation has lapsed.
15. With reference to the objection raised on Civil Court's jurisdiction
under Section 149, it is necessary to refer to the well-settled legal
principles by the Hon'ble Apex Court in the case of Shiv Kumar
Chadha. The legal principles settled by the Hon'ble Apex Court with
reference to the Civil Court's jurisdiction are summarized in the
following paragraphs;
"10. Section 9 of the CPC (hereinafter referred to as "the
Code") says that Courts shall have jurisdiction to try all
suits of civil nature "except suits of which their cognizance
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is either expressly or impliedly barred". According to the
Corporation once the jurisdiction of the Court to try a suit in
which the validity of any order passed under the provisions
of the Corporation Act or the notice issued thereunder has
been specifically barred and an internal remedy has been
provided for redressal of the grievances of the persons
concerned, there is no scope for Court to entertain a suit."
"25. In spite of the bar placed on the power of the court,
orders passed under such statutes can be examined on
"jurisdictional question". To illustrate: a special machinery
has been provided for removal of the encroachments from
'public land' under different enactments in different States
and the jurisdiction of the court has been barred in respect
of the orders passed by such special tribunals or
authorities constituted under such Acts. Still a suit will be
maintainable before a court on a plea that the land in
question shall not be deemed to be a public land within the
meaning of the definition of 'public land' given in the Act in
question, and as such provisions thereof shall not be
applicable."
"28. According to us, it cannot be urged that the provisions
of the Act have created any right or liability and for
enforcement thereof remedy has been provided under the
Act itself. The Act purports to regulate the common law
right of the citizens to erect or construct buildings of their
choice. This right existed since time immemorial. But with
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the urbanisation and development of the concept of
planned city, regulations, restrictions, on such common law
right have been imposed. But as the provisions of the Act
intend to regulate and restrict a common law right, and not
any right or liability created under the Act itself, it cannot be
said that the right and the remedy have been given uno
flatu e.g. "in the same breath". Most of the cases of this
Court referred to above related to statutes creating rights
or liabilities and providing remedies at the same time. As
such the principles enunciated therein, shall not be fully
applicable in the present case. In spite of the bar
prescribed under sub-sections (4) and (5) of Section 343
and Section 347-E of the Corporation Act over the power
of the courts, under certain special circumstances, the
court can examine, whether the dispute falls within the
ambit of the Act. But once the court is satisfied that either
the provisions of the Act are not applicable to the building
in question or the basic procedural requirements which are
vital in nature, have not been followed, it shall have
jurisdiction, to enquire and investigate while protecting the
common law rights of the citizens. Can a court hold a suit
to be not maintainable, although along with the plaint
materials are produced to show that the building in
question is not within the Corporation limits, or that the
constructions were made prior to coming into force of the
relevant provisions of the Act? We are conscious of the
fact that persons who make unauthorised constructions by
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contravening and violating the building bye-laws or
regulations often run to courts, with pleas mentioned
above, specially that no notice was issued or served on
them, before the Corporation has ordered the demolition of
the construction."
emphasis applied by me
16. The Civil Court's jurisdiction under Section 9 of the Code of Civil
Procedure, 1908, entitles the plaintiff to seek a declaration as prayed
in the present case. Section 149 of the said Act reads as under:
"149. Finality of orders: Save as otherwise expressly
provided in this Act, every order passed or direction issued
by the State Government or order passed or notice issued
by any Regional Board, Planning Authority or Development
Authority under this Act shall be final and shall not be
questioned in any suit or other legal proceedings."
17. In view of the legal principles settled by the Hon'ble Apex Court
as referred to herein above, there is no ouster of the Civil Court's
jurisdiction under Section 149 of the said Act. The suit is filed for a
declaration that, due to the inaction on the part of the defendants, the
reservation has lapsed. Thus, the declaration sought by the plaintiff
pertains to the automatic lapse of the reservation due to non-
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compliance with the provisions of the said Act. Section 149 of the said
Act provides for the finality of the orders or notices issued under the
Act. In the present case, there is no challenge to the notice or order
passed under the said Act. Thus, the provision of Section 149 of the
said Act would not exclude the jurisdiction of the Civil Court.
18. In a case involving similar facts, this Court, in the case of
Nagarpalika Sawantwadi, Through The Chief Officer, held that, as per
Section 149, finality is given to the orders passed or directed to be
issued under the said Act. Thus, lapsing of the reservation provided
under Section 127 of the said Act has taken place under the Act, and
thus, the bar as contemplated under Section 149 would not apply to
the case involving the declaration that the reservation has lapsed.
19. Learned counsel for the plaintiff has thus rightly relied upon the
aforesaid decisions as the legal principles settled in the aforesaid
decisions squarely apply to the facts of the present case. The
maintainability of the suit and the bar of the Civil Court in view of
Section 149 of the said Act is discussed by this Court in the decision of
Raja Bahadur Motilal Poona Mills Ltd. and Another . This Court held
that under Section 149, what is barred is the questioning of an order
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made under the Act and does not bar any suit whereby the party to it
can be prevented from acting on an action or order made under the
Act. Thus, this Court held that the bar spelt out under Section 149
under the said Act is, therefore, a limited bar. Another decision of this
court in the case of Rita Mahesh Dadarkar and Others also dealt with
the bar under Section 149. In the facts of the said case, this Court held
that the issue or the challenge regarding the validity or legality of the
town planning scheme in view of the bar of Section 149, the other
prayers pertaining to the Civil Court's jurisdiction cannot be held to be
barred by applying Section 149 of the said Act. This Court held that the
individual plot owner has rights under the Act and must be allowed to
seek enforcement of those rights in some Court. This Court further
held that they cannot be thrown out of the Courts or left entirely to the
mercy of the administrative or executive authorities. Hence, after
considering the applicability of bar under Section 149, this Court held
that the prayers save and except prayers regarding the challenge to
the validity and legality of the town planning scheme, the Civil Court's
jurisdiction would not be barred.
20. Learned counsel for the plaintiff also relied upon the decision of
this Court in the case of Kishor S/o Ramalu @ Rambhau Telang . This
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court dealt with the applicability of the bar under Section 149 and the
finality clause. This Court relied upon various decisions of the Apex
Court, including the decision in the case of Shiv Kumar Chadha. The
relevant paragraph of the decision referring to the Apex Court's
decision in paragraph 14 would be relevant to the present case, which
reads as under.
"14] It is well settled that despite exclusion of jurisdiction of
the Civil Court, where the grievance is in relation to failure to
comply with statutory provisions, such cases can be
examined by the Civil Court. In State of Kerala Vs. M/s. N.
Ramaswami Iyer and Sons, AIR 1966 SC 1738 in para 8 it
has been held thus:
"8. It is true that even if the jurisdiction of the civil court
is excluded, where the provisions of the statute have not
been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles of
judicial procedure, the civil courts have jurisdiction to
examine those cases: Secretary of State v. Mask and
Co., 67 Ind APP 222: (AIR 1940 PC 105)."
Thus, after considering all the decisions of the Hon'ble Apex Court on
the issue of Civil Court's jurisdiction, this Court held that the jurisdiction
of the Civil Court for the purpose of examining as to whether statutory
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requirements have been duly complied or not or whether the basic
procedure requirements have been followed or not can be examined
by the Civil Court irrespective of the bar under Section 149.
21. The legal principles in the decision of Prafulla Dave, relied upon
by the learned counsel for the appellant, would not be of any
assistance to the arguments of the appellants. This Court, in the said
case, held that Section 127 contemplates ten years from the
commencement of the final development under Section 21, not the
revision of the development plan under Section 38. In the present
case, the date of coming into force of the reservation as per the
approval of the final revised plan is correctly considered as the
relevant date. The other two decisions of this Court relied upon by the
learned counsel for the appellant in the case of Babar Sher Khan and
Bales Sardara Paracha pertain to a challenge to the notice issued
under Section 55 of the said Act. Hence, the legal principles in the
aforementioned decisions regarding the applicability of Section 149 of
the Act would not be applicable to the facts of the present case.
22. Thus, in view of the facts of the present case, the well-
established legal principles in the decisions relied upon by the learned
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counsel for the plaintiff, as discussed in the above paragraphs, clearly
support the contentions of the plaintiff. Hence, the arguments raised
on behalf of the appellant-defendant no.3 would not warrant
interference with the impugned judgments and decrees. The second
appeal does not raise any other question of law.
23. Hence, for the reasons recorded above, the second appeal is
dismissed.
24. In view of the dismissal of the second appeal, all pending
applications are disposed of as infructuous.
25. At this stage, learned counsel for the appellant submits that the
operative part of the impugned decree directs all the respondents to
take necessary entries in the record of rights and other revenue record
regarding the suit property. He, therefore, submits that this Court may
clarify that defendant no. 3 is not required to take any entries in the
record of rights, as it is the duty of the revenue officers to make the
necessary entry in the revenue record.
26. I do not see the need to issue any such clarification. This Court
has confirmed the findings of both Courts regarding the declaration
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granted about the lapsing of the reservation. Hence, necessary steps
must be taken as contemplated under the said Act for giving effect to
the lapsing of the reservation and making the land available to the
plaintiff for development. It is, therefore, always open for the appellant
to make an appropriate application in the execution proceedings as
permissible in law for giving effect to the declaration granted by the
impugned judgments and decrees.
27. Learned counsel for the appellant seeks extension of ad-interim
relief already granted by this Court vide order dated 20 th August 2019
in Civil Application No. 189 of 2019. Though learned counsel for the
plaintiff opposes the extension of ad interim relief, I see no reason for
not extending the ad-interim relief for a limited period. At the request of
learned counsel for the appellant, the ad-interim order already
operating in the second appeal shall continue to operate till expiry of
the period of six weeks from the date of uploading this judgment.
[GAURI GODSE, J.]
Digitally
signed by
IRESH
IRESH MASHAL
MASHAL Date:
2025.05.20
16:10:04
+0530
