Trilok Singh Pahlajsingh Rajpal & Ors. v. Municipal Corporation for Greater Mumbai & Ors.

11. The learned counsel submitted that the writ property was reserved in the Development Plan sanctioned on 07th May 1992, and 10 years lapsed on 07th May 2002; the purchase notice was issued on 22nd August 2007 and the notification for acquisition was issued on 27th July 2018 consequently the petitioners were deprived of their property for more than 26 years. He submitted that the respondents ought to have taken steps as required under Section 127 of the Act, to acquire the said property within six months from the date of service of the purchase notice i.e. on or before 21st February 2008 and consequently the reservation of the said plot is deemed to have lapsed and the said plot is deemed to have been released from the reservation/designation and the said plot has become available to the petitioners for the purpose of development as permissible under law.

12. The learned counsel referred to the judgement in the case of Girnar Traders versus State of Maharashtra[1] and submitted that since no notification under Section 6 of the Land Acquisition Act was published as required under Section 127 of the MRTP Act within the said period no “steps” could be said to have been taken by the respondents and consequently, the

13. The learned counsel referred to the judgement in the case of Shrirampur Municipal Council, Shrirampur versus Satyabhamabai Bhimaji Dawkher and others[2] and more particularly paragraphs 33, 34, 41, 42 and 43 and submitted that this judgement followed Girnar Traders (supra). He further submitted that if the scheme of sections 126 and 127 as contemplated by Girnar Traders (supra) was not followed, the landowners will be deprived of the right to use the property for an indefinite period without being paid compensation and that would amount to depriving the citizens of the property without the sanction of law and would result in violation of Article 300-A of the Constitution.

14. The learned counsel referred to the judgement in the case of Bhavnagar University versus Palitana Sugar Mills Private Limited and Others[3] and more particularly paragraphs 28, 34, 40, 41 and 42 and submitted that rights, whether private or public, cannot be taken away or hampered by implication from the language employed in the statute, unless the legislature clearly and distinctly authorises the doing of a thing which is physically inconsistent with the continuation of an existing right and when statutory authority is required to do a thing in a

AJN particular manner, the same must be done in that manner or not at all and when consequence for inaction on the part of the statutory authorities within such specified time is expressly provided, it must be held to be imperative.

15. The learned counsel referred to the judgement in the case of Godrej and Boyce Manufacturing Co. Ltd. versus State of Maharashtra and others[4] and submitted that it is not open for the State Government to issue the impugned notification proposing to modify the Development Plan from deleting for the purpose of the Railways and adding to the Development Plan for the formation of Development Plan of road after the lapse of 10 years and expiry of 6 months notice served upon the state government.

16. The learned counsel then referred to the judgement in the case of Ramakant Vasudeo Pai versus State of Maharashtra and others[5] and submitted that this Court had considered all the relevant judgements of the Supreme Court as well as of this Court and held that the step towards acquisition as contemplated under Section 127 of the MRTP Act, means when the State Government permits the acquisition and as a result thereof publishes the declaration under Section 6 of the “1894 Act” and now under Section 19 of the “2013 Act”.

17. The learned counsel then referred to the judgement in the case of Anil Dattatraya Girme and others versus State of Maharashtra and others[6] and submitted that this Court has held that the reservation lands in the 2nd revised Development Plan impugned in the said petition was declared inoperative and inefficacious since the respondents therein had failed to acquire the land within the statutory period as contemplated under section 127 of the act and it automatically stood released from the reservation and obligation was cast upon the municipal Council to notify the same.

18. The learned counsel then referred to the unreported case of Atul Vamanrao Joshi & Anr. versus State of Maharashtra and Ors.[7] and submitted that once reservation is lapsed in view of contingencies mentioned in Section 127 of the MRTP Act, the necessary consequence under the scheme of Section 127 of the MRTP Act must follow.

19. The learned counsel then referred to the judgement of this Court in the case of Bombay Salesian Society, through Secretary, Fr. Manuel Murzullo versus State of Maharashtra & Ors[8] and submitted that that there is no prescribed format qua the content of the notice set out in Section 127 of the MRTP Act and the owner is not required to call upon the authority to take 6 (2020) 3 Bom CR 353 7 Order dated 13th October 2021 in Writ Petition No.6297 of 2019 filed in High Court of Bombay Nagpur Bench 8 (2020) 1 Bom CR 235 AJN steps to acquire the land within stipulated period.

20. The learned counsel also relied upon the judgment of this Court in the case of Suriaya Akbarali Jetha & Ors. versus Mumbai Municipal Corporation of Greater Mumbai & Ors.[9] and submitted that the respondents having failed to take steps to acquire the land in the stipulated period of time under the MRTP Act cannot justifiably raise a plea of delay and laches against the petitioners.

21. The learned counsel brought to our notice the order passed by the Supreme Court in the case of Kukreja Constructions Company & Ors versus State of Maharashtra10 and submitted that the Supreme Court was pleased to issue notice to the respondents and the same is pending hearing.

22. Mr. Reis, learned senior counsel for the respondents submitted that the present writ petition involves various disputed questions of fact which cannot be gone into by this Court under Article 226 of Constitution of India and writ petition deserves to be dismissed on this ground alone. The learned counsel submits that the land under reference is reserved for Municipal Primary School and was proposed to acquire the adjoining plots bearing F.P. Nos. 644 and 645 which were also reserved to enable the corporation to develop the Municipal Primary School. He 9 (2008) 5 Bom CR 127 10 Order dated 18-12-2018 in W.P No. 1898/2009 passed by High Court of Judicature at Bombay AJN submitted that the improvement committee and the Corporation sanctioned the proposal vide the resolution ICR No.157 dated 14th February 2008 and CR No.1277 dated 15th February 2008 respectively and accordingly, an application to the collector was made with all the requisite documents dated 13th February 2008 and the collector was requested to start the proceedings of acquisition proposal and to publish the notification under Section 6 of the Land Acquisition Act which was well within the period of six months from the date of the notice.

23. The learned senior counsel further submitted that the Additional Collector, (MSD) vide its letter dated 1st April 2019 informed the respondents herein that they had appointed SLAO 3 for acquisition proceeding of land under reference. He submitted that on receipt of the challan received from the City Survey Officer, an amount of Rs.21,000/- was paid on 24th March 2011 by the respondents for carrying out joint measurement. The joint measurement was carried out on 23rd May 2011.

24. Learned senior counsel submitted that the SLAO calculated the acquisition cost of Rs.11,07,37,200/- and requested the respondent Nos.[1] to 3 herein to deposit fifty percent of amount i.e., Rs.5,53,68,600/- vide the letter dated 15th June 2011. He submitted that the report was submitted to the Municipal Corporation under No. CHE/4505/ACQ/WS/H&K dated 9th August 2011. He submitted that the land cost was AJN considered at 40% on account of their being encumbrances on the plot and accordingly 50% of the deposit amount was worked out at Rs.2,21,47,440/-.

25. Learned senior counsel submitted that on 18th February 2012 an amount of Rs.2,21,47,440/- was deposited after having obtained a sanction from the Municipal Commissioner under MCP/7167 dated 25th August 2011 and the SLAO 3 was requested to publish a notification under section 6 of the Land Acquisition Act. The balance payment was made by the SLAO 3’s office on 18th July 2013, amounting to Rs.3,32,21,160/- and the SLAO 3 was requested to publish notification under section 6 of the Land Acquisition Act.

26. Learned senior counsel submitted that, in spite of having requested the Collector, (MSD), on account of delay on the part of the Collector (MSD) and SLAO 3, the notification under section 6 of the Land Acquisition Act was not published by the SLAO 3. He submitted that his clients have complied with all the procedural formalities as per law for acquiring the land in question and there has been no delay on the part of the respondents in any manner whatsoever.

27. Learned senior counsel submitted that the Dy. Collector (L.A.-4) vide letter dated 23rd February 2015 had forwarded the copy of the order issued by the Collector (M.S.D) dated 16th AJN February 2015 thereby seeking to return the acquisition proposals to the acquiring body, where notification under Section 6 of the Land Acquisition Act, 1894 has not been issued and to inform the MCGM to submit fresh proposals for acquisition as per the provisions of the 2013 Act. The Collector vide letter dated 7th December 2015 informed the MCGM about the new procedure that was required to be followed for acquisition as per the 2013 Act.

28. Learned senior counsel submitted that, vide letter dated 18th July 2017, the MCGM re-submitted the acquisition proposal to the office of the Deputy Collector, Land Acquisition 4, Bandra, as per their requisition. The learned counsel states that by the letter dated 17th November 2017, the Deputy Collector, Land Acquisition 4 raised certain points which were complied with by the respondent MCGM by letter number CHE23059/DP/ WS dated 28th November 2017. The learned senior counsel states that by letter dated 19th April 2018, MCGM was directed to deposit the balance amount of Rs.8,59,70,602/- corresponding to the ready reckoner rate of 2017 i.e. Rs.1,89,900/- per square meter.

29. Learned senior counsel submitted that on 9th May 2018, the MCGM informed the Deputy Collector, Land Acquisition 4 to AJN process the subject proposal. Further, as the respondent, MCGM had already made payment of Rs.5,53,68,600/- in the year 2013, the joint measurement of the plot was done on 24th May 2018 by the City Survey Office, Bandra. This was recorded in the letter dated 9th May 2018.

30. The learned counsel submitted that the petitioner’s land under acquisition for which a purchase notice was served was shown as a part to the larger reservation namely Municipal Primary School in SRDP 1991 and is also shown as Municipal School under RE 1.[1] in the revised Development Plan 2034. The learned counsel further submitted that the reservation of municipal school is continued by the planning committee appointed by the State Government and the Urban Development Department of the State Government, and the said reservation is unchanged while sanctioning the Draft Development Plan of 2034 which came into force from 1st September 2018.

31. Learned senior counsel further submitted that in addition to the land under acquisition i.e., FP No.646 of TPS 3 Bandra, MCGM has also initiated the acquisition proceedings for the entire land under the reservation of Municipal Primary School which include the adjacent plots bearing numbers FP No.644 and 645 to develop the same as per the reservation. He submitted that on 27th July 2018, the collector (MST) has issued the notification declaring the land bearing final plot number 644, AJN 645 and 646 of TPS 3, Bandra corresponding to CTS numbers, F/197, F/196 and F/192 of village Bandra as required for the public purpose of Municipal Primary School. The learned counsel submitted that the said notification is published in Maharashtra State Gazette Part 1 Konkan division on 2nd August 2018 to 8th August 2018 and also published in local Marathi newspapers on 4th August 2018.

32. Learned senior counsel submitted that they had issued a notification on 27th July 2018 under Section 19 of the 2013 Act and is willing to acquire this said reserved land under reference by following the due process of law and thus the writ petition deserves to be dismissed.

33. Learned senior counsel submitted that although the acquisition has lapsed, the respondents could always acquire the land by taking recourse under the 2013 Act though, the provisions of Sections 125 and 126 of the MRTP Act will not be available for such acquisition in view of lapsing of the reservation. In support of this submission, he relied upon an unreported case of Satish Prakash Rohra versus Municipal Corporation of Greater Mumbai and Ors.11 and more particularly paragraph 26 of the said judgement, which is as under: “Notwithstanding the lapsing of reservation, the respondents can always acquire the land subject matter of these two petitions

11 Writ Petition No.2093 of 2015 AJN by taking recourse to the new Land Acquisition Act, though the provisions of sections 125 and 126 of the MRTP Act will not be available for such acquisition in view of lapsing of the reservation…”

34. Learned senior counsel relied on an unreported case of Apurva Natvar Parikh & Co. Private Limited versus State of Maharashtra & Ors.12 and submitted that gross and unexplained delay is always a ground on which a Writ Court can decline to exercise its jurisdiction even if existence of a right is established by the petitioners. According to the learned senior counsel in the present case too there was a gross delay since the alleged lapsing was in the 2002 whilst the petition was filed in 2016 after a period of 14 years.

REASONS AND CONCLUSIONS:

35. We have heard the learned counsel and have considered their rival contentions. The counsel sought to tender additional judgements, which was permitted by us.

36. The respondents failed to acquire the property for a period of 10 years i.e., from 7th May 1992 to 6th May 2002. The Purchase notice under Section 126 of the MRTP Act was served upon the respondents on 22nd August 2007. The statutory period of 6 months expired on 21st February 2008. In our view the letter dated 25th March 2013 issued by the petitioners withdrawing their purchase notice would have no effect on the

12 Writ Petition No. 203 of 2014 AJN lapsing of the reservation as Section 127 of the MRTP Act contemplates “steps” to be taken by the Authority alone.

37. In our view, the sanctioning of proposal by the improvement committee and the corporation on 14th and 15th February 2008 or the application made to the collector with the documents on 13th February 2008 to publish the notification under Section 6 of the Land Acquisition Act or the Additional Collector’s letter on 1st April 2019 appointing SLAO or amounts paid on 24th March 2011 for joint measurements or deposit of 50% of acquisition cost on 18th February 2012 or steps taken before the issuance of notification on 27th July 2018 cannot be construed as “steps” taken as contemplated for acquisition of the property.

38. The unreported case of Satish Prakash Rohra (supra) relied upon by the respondents supports the case of the petitioners and not the respondents. The respondents have invoked the powers delegated under subsection 4 of section 126 of the said Maharashtra Act read with subsection (1) of section 19 of the 2013 Act after lapsing of reservation. Paragraph 27 of the said judgement reads thus: “As regards subsequent reservations imposed by the notification dated 8th May 2018, the law is well settled. Once there is a lapsing of reservation imposed by the earlier Development Plan, the benefit of lapsing cannot be taken away AJN by imposing the subsequent reservations. The said principle has been laid down by a Division Bench of this Court in the case of Baburao Dhondiba Salokhe V/s Kolhapur Municipal Corporation and another reported in 2003 3 Mh LJ 820. The Apex Court in the case of Godrej and Boyce Manufacturing Company Limited V/s State of Maharashtra and others reported in (2015) 11 SCC 554 dealt with a case where after lapsing of reservation under section 127 of the MRTP Act, an attempt was made to impose a reservation by modification of the sanctioned Development Plan by taking recourse to section 37 of the MRTP Act. The Apex Court held that statutory right accrued to the owners cannot be taken away by making an attempt to impose a fresh reservation. Therefore, subsequent reservation imposed on 8th May 2018 is of no consequence.”

39. The reliance placed on the unreported case of Apurva Natvar Parikh & Co. Private Limited (supra) by respondent Nos.[1] to 3 in support of their contention that the petitioners have approached the court after a huge delay and which would amount to the petitioners having abandoned their right is misplaced as the said case was not of lapsing but a case where the petitioners had surrendered their lands and never claimed TDR in respect of amenity developed by them till 17th February

2012.

40. Supreme Court in case of Girnar Traders (supra) has held that the application under section 126 (1) (c) could be said to be a step taken for acquisition of the land if such application is moved within the period of one year from the date of publication of regional plan AJN and not otherwise. The acquisition cannot be left for a time immemorial in the hands of the authority concerned. The commencement of the period of six-months is 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 de-reservation of the land. The acquisition under the MRTP Act commences with the publication of declaration under section 6 of the Land Acquisition Act, 1894 and not prior to that.

41. In our view, various so called steps taken by the Municipal Corporation in this case were not the steps contemplated under the provisions of sections 126 and 127 of the MRTP Act and in accordance with the principles laid down by the Supreme Court in case of Girnar Traders (supra). Admittedly in this case, the notification under section 6 was not issued within six months from the date of service of the purchase notice i.e. 22nd August, 2007. The principles laid down by the Supreme Court in case of Girnar Traders (supra) apply to the facts of this case. We are respectfully bound by the said judgment.

42. The Supreme Court in case of Shrirampur Municipal Council, Shrirampur (supra) after adverting to its earlier judgment in case of Girnar Traders (supra) has reiterated that the steps towards acquisition can only be said to really commence when the State Government takes active steps for acquisition of the particular piece of land which leads to publication of declaration under section 6 of the Land Acquisition Act, 1894. AJN

43. In the said judgment, the Supreme Court held that the reservation of the land will be deemed to have lapsed on expiry of six months from the date of receipt of purchase notice as the steps contemplated under section 126(1) (c) read with section 127 were not taken before expiry of the said period. The Supreme Court held that the resolutions passed and communication sent to the District Collector by the authorities for commencement of acquisition proceedings were after service of purchase notice by orders of the reservation of land under section 127. Thus, it did not amount to requisite steps to prevent lapsing of reservation. The arguments advanced by the learned senior counsel for the Corporation in this case are similar to the arguments advanced by the Government before the Supreme Court in case of Shrirampur Municipal Council, Shrirampur (supra) and the same were rejected.

44. In our view the arguments advanced by the learned senior counsel for the respondent Corporation are contrary to the principles laid down by the Supreme court in case of Girnar Traders (supra) and in case of Shrirampur Municipal Council, Shrirampur (supra) and are thus rejected.

45. The Division Bench of this Court in case of Ramakant Vasudeo Pai (supra) after adverting to various judgments held that the steps towards acquisition would really commence when the State Government permits the acquisition and as a result thereof publishes the declaration under section 6 of the 1894 Act/section 19 of 2013 Act. It is section 6 declaration/section 19 declaration which would AJN commence the acquisition proceedings under the MRTP Act and would culminate into passing of an award as provided under subsection (3) of section 126 of the MRTP Act. Unless and until section 6 declaration/section 19 declaration is issued, it cannot be said that the steps for acquisition have commenced. None of the steps taken by the Municipal Corporation in this case would amount to taking steps to prevent lapsing of reservation of the plot of the petitioners. The principles of law laid down by this Court in case of Ramakant Vasudeo Pai (supra) apply to the facts of this case. We are respectfully bound by the said judgment. We do not propose to take any different view in the matter.

46. The Supreme Court in case of Godrej and Boyce Manufacturing Company Limited (supra) held that the State Government had not commenced the proceedings to acquire the land by following the procedure as provided under sections 4 and 6 of the repealed Land Acquisition Act, 1894 after expiry of 10 years from the date of reservation made in the Development Plan. A six months prior notice had expired, the reservation stood lapsed and it enured to the benefit of the owner of the land. It is not open for the State Government to issue the impugned notification proposing to modify the Development Plan for deleting the purpose originally shown and by reserving it for another purpose. The principles laid down by the Supreme Court in case of Godrej and Boyce Manufacturing Company Limited (supra) apply to the facts of this case. AJN

47. The Division Bench of this Court in case of Atul Vamanrao Joshi & Anr. (supra) after adverting to various judgments of Supreme Court and this Court held that once the reservation is lapsed in view of contingencies mentioned in Section 127 of the M.R.T.P. Act, the necessary consequences under the scheme of Section 127 of the M.R.T.P. Act must follow. The land which is released from the reservation becomes available to the owner for the purpose of development. The right which is conferred or accrued to the owner of the land due to lapsing of reservation cannot be taken away by the Planning Authority by exercising power under Section 38 of the MRTP Act. The principles laid down by this Court in case of Atul Vamanrao Joshi & Anr. (supra) applies to the facts of this case.

48. The Division Bench of this Court in case of Anil Dattatraya Girme and others (supra) after adverting to various judgments has held that the land once de-reserved from the revised development plan by operation of law cannot be reserved again, in the second revised plan with some variation in purpose. The principles laid down by this Court in case of Anil Dattatraya Girme and others (supra) apply to the facts of this case. We are respectfully bound by the said principles. We do not propose to take different view in the matter.

49. In our view, the respondents no. 4 and 5 thus could not have issued notification dated 27th July, 2018 under section 126(4) read with sub-section (1) of section 19 of the Act of 2013 declaring the said land needed for Municipal Primary School. No such steps could have been taken by the respondents no. 4 and 5 after AJN reservation of the said plot stood lapsed. The respondents cannot be allowed to reserve the plot again which stood de-reserved. In our view, the act of Planning Authority subjecting the land of the petitioners once again to reserve the said land under New Development Plan 2034 is unsustainable in law and thus the said reservation is declared as unreserved and unsustainable in law.

50. The Division Bench of this the Court in case of Bombay Salesian Society (supra) has held that if no steps are taken within the time prescribed to acquire the land which is the subject matter of notice, the reservation, allotment or designation shall be deemed to have lapsed and the land should be deemed to be released from reservation, allotment or designation and shall become available to the owner for the purpose of development. This Court also held that the reservation having lapsed, the respondents again cannot reserve the said plot in the draft revised Development Plan. The respondents cannot be allowed to take advantage of its own wrong and blame the petitioner for the delay when in fact the delay lies squarely at the doors of the respondents. The principles laid down by this Court in the said judgment apply to the facts of this case. The Division Bench of this Court in case of Suraiya Akbarali Jetha & Ors. vs. Mumbai Municipal Corporation of Greater Mumbai & Ors., 2008 SCC OnLine Bom 532 has taken a similar view in the matter.

51. Insofar as judgment delivered by the Division Bench of AJN this Court in case of Satish Prakash Rohra & Anr. (supra) relied upon by the learned senior counsel of the Municipal Corporation is concerned, a perusal of the said judgment indicates that the Division Bench in the said judgment distinguished the judgment delivered by the Supreme Court in case of Hiraman Sitaram Deorukhkar on 24th August, 2017 in Civil Appeal No. 11258 of 2017 which judgment of Supreme Court is relied upon by the learned senior counsel for the Municipal Corporation.

52. This Court after adverting to the said judgment of Supreme Court held that the directions issued by the Supreme Court in the said judgment were in exercise of powers under Article 142 of the Constitution of India. This Court has also held that once there is a lapsing of reservation imposed by the earlier Development Plan, the benefit of lapsing cannot be taken away by imposing the subsequent reservations. In our view, the judgment of this Court in case of Satish Prakash Rohra & Anr. (supra) relied upon by the learned senior counsel for the Municipal Corporation, would assist the case of the petitioners and not the respondents. The judgment of the Supreme Court exercising powers under Article 142 of the Constitution of India is not a precedent.

53. Insofar as judgment of this Court delivered on 18th December, 2018 in case of Apurva Natvar Parikh & Co. Private Limited (supra) relied upon by the learned senior counsel for the AJN Municipal Corporation is concerned, this Court in the said judgment has held that gross and unexplained delay is always a ground on which a Writ Court can decline to exercise its jurisdiction even if existence of a right is established by the petitioner. This Court held that if the petitioners in such a case were to seek monetary compensation by filing a suit, it will be governed by the law of limitation.

54. It is held that whether there is a gross delay or not depends on the facts and circumstances of each case and, therefore, each case will have to be examined on facts because there cannot be a straight-jacket formula for deciding whether the Court should exercise its discretion or not. After considering correspondence in that matter, this Court recorded the finding of fact that the petition did not suffer from delay and latches. In our view the said judgment would assist the case of the petitioners and not the respondents.

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. AJN

56. We accordingly pass the following orders:-: ORDER: (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.

58. The parties to act on the authenticated copy of this judgment. [KAMAL KHATA, J.] [R. D. DHANUKA, J.]

59. At this stage, Mr. Abhijit Joshi holding for Joquim Reis, learned senior counsel for respondent Nos.[1] to 3, AJN seeks stay of operation of this order.

60. Application for stay is rejected. [KAMAL KHATA, J.] [R. D. DHANUKA, J.] AJN