COURT v. Municipal

Heard Mr. Sathe the learned Senior Counsel Mr. Birendra Saraf Mr.Vivek Shiralkar i/by Shiralkar & Co. petitioners, Mr. K.K. Singhvi learned Senior Counsel Ms. Trupti Puranik for the respondent nos.1 and 2. Mr.Ingawale, the learned AGP appears for respondent nos.3 to 5. :2:

Rule. Respondents waive service. By consent of the parties, the petition has been heard finally forthwith.

In this petition filed under Article 226 of Constitution, petitioners prayed a mandamus forthwith withdraw, cancel and/or reservation petitioners’ property delete bearing No. 856 admeasuring 626 sq.mtrs. C.T.S. J.V.P.D. Scheme, Vile Parle (W), Mumbai forthwith consider sanction development property. The petitioners further directions petitioners utilize F.S.I. T.D.R. portion property admeasuring 550 sq.mtrs. already physically D.P. without carrying acquisition proceedings alternatively forthwith compensation petitioner No.2 portion 550 sq.mtrs. at the prevailing market rate with interest as per the provisions of Land Acquisition Act, 1894.

The petitioner no.1 is a Public Charitable :3: Trust, registered provisions Bombay Public Trust Act, 1950 petitioner no.2 trustee petitioner no.1. Petitioner No.3 a partnership firm, registered Indian Partnership Act, 1932 petitioner no.4 partner petitioner no.3. Respondent No.1 Municipal Corporation Greater Mumbai statutory Corporation constituted a Mumbai Municipal Corporation Act, 1881 (the Act short) a Planning Authority Maharashtra Regional Town Planning Act, 1966 (for M.R.T.P. Act) falling within municipal limits Greater Mumbai. Respondent No.2 Municipal Commissioner respondent Land State no.1-Corporation, respondent no.3 a Acquisition Officer respondent no.4 Maharashtra. As earlier, petitioner nos.1-Trust property bearing CTS No. 856 admeasuring 1176 sq.mtrs. admeasuring 550 sq.mtrs. already acquired widening, leaving behind 626 sq.mtrs. It agreed property petitioner no.3 consideration Rs.70,00,000/- amount a a :4: already received petitioner no.1. Deed

Confirmation singed 18/11/2004 confirming Agreement 7/10/1990 Deed Confirmation has been registered with the Sub Registrar of Assurance at Andheri.

The property in CTS No. 856 was reserved in development garden revised published Corporation 30/4/1984 despite objections/suggestions, notification 19/3/1993 published Government Gazette sanctioning development subject property reserved garden (626 sq.mtrs) D.P. 550 sq.mtrs. The petitioners further acquiring remaining 626 sq.mtrs. reserved garden, petitioner no.1 issued a notice Section 127 M.R.T.P. Act, 1966 31/3/2004 respondent no.1 through petitioner no.4 thereby requesting respondent-Corporation necessary acquire property within months notice, requirement section. A notification published 6/10/2004 Maharashtra :5: Government Gazette stating reservation garden respect adjoining petitioners’ proposed deleted converted reservation parking However, State Government continued plot. reservation petitioners’ property garden. As within a period months issuance notice Section 127 M.R.T.P. Act, petitioners, reservation deleted and, therefore, petitioner no.1 addressed a letter respondent - Corporation 3/3/2005 pointing reservation deleted admeasuring 626 sq.mtrs. converted residential zone. The petitioner submitted proposal development property a request approve plan. petitioners, time, received no.1 As a letter 16/3/2005 respondent no.1 informing application Collector 22/9/2004 appropriate acquisition application within period months and, therefore, submitted petitioners processed. After correspondence, instant petition appears :6: presented before court. Initially, affidavit Director Town Planning, petition, contended Collector, Mumbai Suburban District, letter 29/5/2006, stated preliminary enquiry carried acquisition proposal Kami Jasti Patrak CTS No. 856 corresponds Survey No. 60A a Government and, therefore, question acquisition hence, proposal acquisition returned Additional Collector, Mumbai Suburban District Municipal Corporation. The petitioners, therefore, application Superintendent Land Records, passed rectification Kami Jasti Patrak and the said order (operative portion) reads as under:- "1. The City Survey (Officer), Vile Parle should rectify Statement Increase Decrease (Kami Jasti Patrak) respect S.No.52 S. No.60A Mouje Juhu. survey No. 52 Enquiry Register should CTS No. 856 should :7: 1176 sq.mtrs. Non-agricultrual land. As State Increase Decrease (Kami Jasti Patrak) pertaining Survey No. 60A rectified Enquiry Register CTS No.857

1609.2 sq.mtrs.

2. Concerned should intimated regard. "

On the basis of the above order of the Superintendent Land Records, Mumbai, City Survey Office issued a Kami Jasti Partak clearly CTS No. 856 corresponds Survey No. 52 Survey No.60A earlier claimed City Survey Office Collector. It is, thus, finally concluded petitioners’ property i.e. CTS No. 856 corresponding Survey No. 52 a Government property Government property is in CTS No. 857 corresponding to Survey No. 60A.

The main prayer before us in this petition is a declaration failure :8: respondent-Corporation Government authorities acquisition contemplated meaning Section 126 a period 10 subsequently issuance notice within Section 127 M.R.T.P. Act, within a period months, reservation CTS No.856 admeasuring 626 sq. mrts. lapsed. It further contended lapsing reservation, subject property released petitioners liberty develop purpose adjacent marked. The thrust arguments support petition a recent decision Supreme Court in the case of Girnar Traders vs. State of 30/10/2007 relying decision Girnar Traders (Supra). Mr.Singhvi learned Senior Counsel appearing Corporation a submission instructions further passed review petition filed by the Corporation and, therefore, we proceed to decide this petition.

In Girnar Traders’ case (Supra) two issues had been referred to the larger Bench, namely, (a) Whether the reservations had lapsed due to the failure of the Planning Authority to take steps within the period of six months from the date of service of notice of purchase as stipulated under Section 127 of the M.R.T.P. Act? (b) The question as regards applicability of new Section 11A of the Land Acquisition Act 1894 to the acquisition of :10: land under the M.R.T.P. Act. . On the second question, the three Judge bench recorded a unanimous larger Bench (Constitution Bench), whereas rendered a divided opinion. minority Hon’ble Shri Justice The P.K. Balasubramanyan (as His Lordship then was) concluded his opinion in para 123 as under:- "123. I would, therefore, hold that there has been sufficient compliance with the requirement of Section 127 of the MRTP Act by the authority under the Act by the acquisition initiated against the appellant in the appeal arising out of SLP (C) No. 11446 of 2005 and the reservation in respect of the land involved therein does not lapse by the operation of Section 127 of the Act. But since on the main question in agreement with my learned Brothers I have referred the matter for decision by a Constitution Bench, I would not pass any final orders in this appeal merely based on my conclusion on the aspect :11: relating to Section 127 of the MRTP Act. The said question also would stand referred to the larger Bench. " . Whereas, the majority view of the remaining learned Judges concluded findings second issue in paras 66 to 68 in the following words:- "66. On a minute and careful scrutiny of the documents produced before us, we do not find that the application under Clause (c) of Section 126(1) was moved by the officer authorised by the Municipal Corporation i.e. the Municipal Commissioner, to the State Government for acquisition of the land, so that it could be said that steps as contemplated were taken for the commencement of acquisition proceedings.

In view of our decision on the interpretation and applicability of Section 127 of the MRTP Act to the facts of the present case, the appellants are entitled to :12: the relief claimed, and the other question argued on the applicability of the newly inserted Section 11-A of the LA act to the acquisition of land made under the MRTP Act need not require to be considered by us in this case.

For the aforesaid reasons, the impugned judgment and order dated 18-3-2005 passed by the Division Bench of the Bombay High Court is set aside and this appeal is allowed. As no steps have been taken by the Municipal Corporation for acquisition of the land within the time period, there is deemed dereservation of the land in question and the appellants are permitted to utilise the land as permissible under Section 127 of the MRTP Act. "

In Girnar Traders’ case (Supra) it was an admitted position development 16/9/1991 revised sanctioned 10 expired 15/9/2001 without acquisition acquisition :13: question. On 15/3/2002, purchase notice Section 127 appellants received authorities 19/3/2002. For time, service purchase notice, 9/9/2002 a proposal Improvement Committee recommending Corporation sanction initiate proceedings. On 13/9/2002 without resolution Municipal Corporation, Municipal acquisition Chief Engineer (Development Plan) application State Government initiating acquisition proceedings. For 16/9/2002, a resolution passed Municipal Corporation whereby sanction initiate acquisition proceedings Municipal Commissioner authorised application Government 17/9/2002 a letter State Chief Urban Engineer (Development Plan) Secretary, Development Department, Government Maharashtra initiating acquisition proceedings. Admittedly, neither acquired within 10 final regional plan or final development plan came into force. :14: . It would be appropriate to reproduce the provisions of Sections 126 and 127 of the M.R.T.P. Act, 1966:- "126.(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 agreement by paying an amount agreed to, or however, depositing Development Authority, Acquisition against further Transferable development Development (b) land-owner lessee Authority lessor’s amount interest lessor, principles Authorities Act, Transferable 1894, Floor Development additional Floor paying amount, lessee, Planning lessor be, equivalent payment determined concerned Space Rights surrendered encumbrances, Space Index Index surrendered Development Control behalf construction Rights against cost, Regulations provide, amenity prepared granting subject, Authority, Appropriate Land (FSI) (TDR) Final (c) making Government Land acquiring Acquisition application Act, State 1894, :15: developed agreement additional any, Transferable sections 1894, absolutely Planning as the case may be, any Appropriate Authority.

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 proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six 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 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. "

In paras 54 and 56 of Girnar judgment (Supra) the majority view has held that, (a) a conjoint reading of Sections 126 and 127 of the MRTP Act makes the legislative intent clear to expeditiously acquire the land reserved under the Town Planning Scheme and, :18: therefore, various periods have been prescribed for acquisition of the owner’s property; (b) acquisition immemorial authority concerned simply making application State Government acquiring LA Act, 1894, authority simply application notification issued State Government publication regional Section 126(2) Section 6 LA Act, notification issued State Government exercising sub-section reservation 127 regards lapsing contemplated declaration released available Section utilisation permitted 127; (c) the steps towards commencement of the acquisition in such a situation would :19: necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation. (d) legislature enacting Section 127 deliberately "steps" (in plural singular) required acquisition land. construction Section 126 provides acquisition MRTP Act, apparent issuance acquisition declaration Section 6 LA Act. Clause (c) Section 126(1) merely provides a State Government requested acquisition Section LA Act. The making application State Government acquisition a acquisition reservation. Sub-section Section 126 leaves State Government either permit acquisition 6 On (2) :20: permit, considering public purpose acquisition sought authorities. Thus, towards acquisition really commence State Government permits acquisition a result thereof publishes declaration Section 6 LA Act.

We have gone through the order passed by the different coordinate benches i.e. Writ Petition No. 7512 2006 between Shri Umesh Prabhudas Patel vs. The Commissioner, Nashik Municipal Corporation ors. (unreported) Satyabhamabai Bhimaji Dawkher vs. State 20]. Maharashtra ors. [2007 (6) Bom.C.R. As larger Bench decision Girnar Traders (Supra). In instant obvious Corporation further submitting application Collector 22/9/2004 proposing acquisition petitoners’ property intimated petitioners letter 16/3/2005. Obviously action Corporation :21: State Government, any, instant requirements within a period months service purchase notice Section 127 the M.R.T.P. Act, respondents acquire subject property within meaning Girnar Traders (Supra) dispute. The making application State Government through Collector respondent Municipal Corporation acquisition 22/9/2004 petitioners’ remaining (626 sq.mrts.) a acquisition reservation. In - rejoinder Corporation stated Superintendent Land Records passed clarifying correct survey numbers, Corporation issued a letter 11/9/2007 continuation earlier letter 22/9/2004 Additional Collector (Mumbbai Suburban District) reference immediate acquisition declare Section 11 Land Acquisition Act, 1894 reference acquired intended public purpose. The towards acquisition :22: commenced acquisition State Government permits a result thereof publishes declaration Section 6 Land Acquisition Act, 1894, a contemplated Section 126(2) M.R.T.P. Act. Consequently, reservation subject deemed lapsed petitioners entitled utilise the said plot as permissible under Section 127 of the M.R.T.P. Act. 12A. So far as the next prayer for TDR/FSI in lieu admeasuring 550 sq.mtrs. D.P. development concerned, Corporation denied petitioner no.1 already acquisition proceedings contemplated Land Acquisition Act, 1894 initiated. On factual position, Corporation dispute entitlement petitioner no.1 receive compensation Land Acquisition Act, 1894 alternate FSI/TDR Rules. It is, therefore, necessary Corporation considers processing the petitioner-trust’s claim in this regard as well expeditiously and as per its Rules. :23:

Hence, the petition succeeds. We hold that petitioners’ property reservation (about 626 sq.mtrs.) forming CTS No. 856 (Survey No.52) J.V.P.D. Scheme, Vile Parle (W), Mumbai deemed released reservation garden. We, consequently, direct respondent-Corporation process submitted development property sanction requirements Rules keeping Section 127 M.R.T.P. The prayer petitioners FSI TDR respect admeasuring 550 sq.mtrs. CTS No.856 (Survey No.52) acquired widening be considered by the Corporation as per the Rules expeditiously. Act. . Rule is made absolute accordingly with no order as to costs. . At this stage, Mr.Singhvi the learned Senior Counsel appearing Corporation submitted application a period operation eight weeks enable Corporation approach Apex Court. Mr. Sathe :24: learned Senior Counsel appearing petitioners, hand, opposed application. However, appropriate hence, application granted operation stayed from today so far as it relates to the Garden plot (626 sq.mtrs.). . Certified copy be issued on priority basis. (S.R. Sathe, J.) Sathe, J.) (S.R. (S.R. Sathe, J.) (B.H. Marlapalle,J.) Marlapalle,J.) (B.H. (B.H. Marlapalle,J.)