RAVINDRA v. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE
Facts
3-WP-8836-2022-Judgment.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 8836 OF 20221]Ramesh Gopikishanji MalaniAge: 76 years, Occu. Medical Practitioner R/o. “Shubham”, Plot No.25, N-3, CIDCO, Aurangabad 2]Vijay Gopikishanji Malani Since deceased through Legal Representatives 2A]Alka Vijay MalaniAge: 68 years, Occu. HouseholdR/o. Gopichanda Complex, Jalna Road, Aurangabad 2B]Punil Vijay MalaniAge: 36 years, Occu. BusinessR/o. Gopichanda Complex, Jalna Road, Aurangabad 2C]Bhakti Nitin MundadaAge: 42 years, Occu. Household,R/o. Pune Through Registered Power of Attorney HolderPunil Vijay MalaniAge: 36 years, Occu. HouseholdR/o Gopichanda Complex, Jalna Road, Aurangabad 2D]Pooja Ajay LahotiAge: 39 years, Occu. Medical Practitioner R/o. Hyderabad.Through Registered Power of Attorney HolderPunit Vijay MalaniAge: 36 years, Occu. HouseholdR/o. Gopichanda Complex, Jalna Road,Aurangabad 1 of 8
Legal Reasoning
(( 6 ))3-WP-8836-2022-Judgment“10. In support of her contention, she relied upon thejudgments of the full Bench of this Court in the case ofMadanlal Zumberlal Nahar v Chief Officer, Municipal CouncilBeed2 and Jeevan Mallappa Tonemare v Chief Officer,Kankavali Nagar Panchayat.3 These judgments held that a validnotice would necessarily require to be accompanied bydocument showing title or interest in the land underreservation. Then drawing our attention to the correspondenceseeking title documents she submitted that the Petitioners hadfailed to give those relevant documents and thus the notice wasnot a valid notice. She also contended that all the owners of theproperty did not give the purchase notice. She thereforecontended that the purchase notice under Section 127 of theMRTP Act that is an essential prerequisite for lapsing of thereservation was defective. Thus, the Petition must necessarilyfail.11.In rejoinder, the Petitioners asserted that they hadsubmitted the documents that were sought for by theRespondent Corporation and in spite of which the Respondenthad failed to take steps as required under the MRTP Act. ThePetitioners have annexed the property card that was submittedto the Respondents being the document of title at page 16 ofthe Petition. In the last row and 2nd last column, the name ofthe Petitioners is evident as the owner. The purchase notice alsohas categorically stated that the Petitioner no 1 is the co-ownerof the said property and the purchase notice was issued onbehalf of all the owners. The Respondent Corporation has notdenied the assertion that the property card was sent by thePetitioners in their reply. The Respondents have also notpointed out any inconsistency with regard to any documentssubmitted or to the claim of the Petitioner no 1 being a co-owner. 6 of 8 (( 7 ))3-WP-8836-2022-Judgment12.Whilst testing the Petitioners’ case on the alternatesubmission, namely, assuming that the property stood reserved,we are satisfied that the purchase notice was valid. ThePetitioners have stated on oath that they have sent thedocuments to the Respondent No. 2. The property card evincesthe interest of the Petitioner no 1 as well as his co-ownershipright. The essential ingredients or requisitions of the purchasenotice have therefore been complied with by the Petitioner no1, as it shows not only the title but also his co-ownership rightsand interest in the Petitioners land.”7.The learned AGP has vehemently opposed this Petition onthe ground that the District Collector had reverted to the MunicipalCommissioner/Administrator, vide communication dated 19.06.2021,informing the latter that the communication forwarded by theAdministrator, did not contain all the details and the relevantdocuments. He, therefore, submits that the office of the DistrictCollector had responded to the communication of the Administratorof the Municipal Corporation. Thereafter, there has been no responsefrom the Corporation. 8.Considering the above and taking into account the viewof this Court in Keshav Manikrao Bagal (supra) and JagdishMallikarjun Patil (supra), we hold that when some of the owners haveissued the purchase notice, merely because all the owners have notsigned upon the said notice, would not render the notice defective. 7 of 8 (( 8 ))3-WP-8836-2022-Judgment9.As such, this Writ Petition is allowed in terms of prayerclauses (A) and (B). The Corporation shall communicate the lapsingof the reservation to Respondent No.1, within 30 days. RespondentNo.1 would issue a notification under Section 127(2) of the M.R.T.P.Act, within 90 days thereafter. 10.Rule is made absolute in the above terms. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 8 of 8
Arguments
(( 2 ))3-WP-8836-2022-Judgment3]Sunil Gopikishanji MalaniAge: 63 years, Occu. Business,R/o. Jadhavmandi, Municipal No.4-5-11.Aurangabad … PetitionersVERSUS1]The State of Maharashtra Urban Development DepartmentThrough its Principal Secretary,Mantralaya, Mumbai 2]Aurangabad Municipal Corporation Aurangabad Through its Commissioner 3]The Additional DirectorTown Planning Department,Aurangabad Division, Aurangabad M.B.C. Tower, 2nd Floor,Near Baba Petrol Pump,Adalat Road, Aurangabad 4]The Assistant Director,Town Planning, Aurangabad Mondha Naka, City Pride Building,1st Floor, Jalna Road,Aurangabad – 431 001. … Respondents .…Mr. A. N. Sikchi, Advocate for Petitioners Mr. M. M. Nerlikar, AGP for Respondent Nos. 1, 3 and 4 Mr. A. R. Vaidya, Advocate for Respondent No.2 .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE:01.07.2024 2 of 8 (( 3 ))3-WP-8836-2022-JudgmentOral Judgment (Per: Ravindra V. Ghuge, J.) :- 1.Rule. Rule made returnable forthwith and heard finallyby the consent of the parties. 2. The Petitioners have put forth prayer clauses (A) and (B)as under:-“[A]The Hon’ble High Court may be pleased to issueappropriate writ, order or direction in the nature of writ andthereby declare that the property bearing Municipal No.4-5-11,CTS No.7913 situated at Jadhav Mandi Aurangabad(particularly described in paragraph No.2), is free fromencumbrance of reservation as reserved in final developmentplan of Aurangabad sanctioned by the Government underSection 31(1) of the MRTP Act, 1966 vide notificationNo.TPS/3001/1566/CR-27/2001/UD-30 dated 17.08.2002 assite No.46 vegetable market and shopping complex.[B]The Hon’ble High Court may be pleased to issueappropriate writ, order or direction in the nature of writ andthereby further direct the Respondent No.1 to notify the lapseof reservation of the property bearing Municipal No.4-5-11,CTS No.7913 situated at Jadhav Mandi Aurangabad(particularly described in paragraph No.2), by an orderpublished in Official Gazette, in pursuant to section 127(2) ofthe Maharashtra Regional Town Planning Act, 1966.”3. In such matters, the dates and sequence of events arerelevant. The same are as under:- 3 of 8 (( 4 ))3-WP-8836-2022-Judgment(a) The property at issue is Municipal No.4-5-11, CTSNo.7913, situated at Jadhav Mandi, Aurangabad.(b) The property was reserved in 1969 for a vegetable marketand for 20 feet as well as 40 feet wide roads, under theDevelopment Plan of Aurangabad. The reservation wasshown as site No.48.(c) On 17.08.2002, the Development Plan of Aurangabad citywas revised, whereby, the property at issue was reserved,for the vegetable market and shopping complex indicatedas site No.46, by the Government under Section 31(1) ofthe M.R.T.P. Act, 1966.(d) The Petitioners issued the purchase notice under Section127(1) of the M.R.T.P. Act, dated 16.07.2018, which wasserved on the Municipal Commissioner. A further,reminder dated 14.08.2018, was also served.4.The learned Advocate representing the MunicipalCorporation submits that a communication dated 06.05.2021, wasforwarded to the District Collector praying for a proposal to beprepared and at the same time expressing the willingness of theCorporation to pay the compensation amount. However, from therecords and the affidavit-in-reply, the learned Advocate is unable topoint out as to whether effective steps were taken, as are recognized 4 of 8 (( 5 ))3-WP-8836-2022-Judgmentunder the law laid down in M/s.Girnar Traders Vs. State ofMaharashtra and others (2007) 7 SCC 555. He, however, submitsthat all the owners of the property have not given the purchasenotice.5.The Petitioner relies upon the observations of this Courtin paragraph 15 of the judgment dated 03.04.2018, delivered in WritPetition No. 8066 of 2009 (Keshav Manikrao Bagal Vs. The State ofMaharashtra and others). Paragraph 15 reads as under:-“15.One more objection was raised by the learned Counselfor the respondents that notice to respondent Nos.4 and 5 wasserved by the petitioner only and not by other co-owners.However, a bare glance of Section 127(1) of M.R.T.P. Act makesit clear that the owner or person interested in the land mayserve notice on Planning Authority or Development Authorityas contemplated under that provision. Thus, the service ofnotice by every co-owner giving intimation regarding lapsing ofreservation is not at all necessary.”6.The Petitioners also rely upon the judgment delivered bythis Court at the Principal Seat in Jagdish Mallikarjun Patil and othersVs. The State of Maharashtra and others – MANU/MH/1684/2024. Aspecific reference is made to paragraph Nos. 10, 11 and 12, whichread as under:- 5 of 8