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2012 Supreme(Bom) 65
High Court of Judicature at Bombay
P.B. MAJMUDAR & MRIDULA BHATKAR
Mehtab Laiq Ahmed Shaikh of Mumbai
Versus
Municipal Corporation of Greater Mumbai & Others
WRIT PETITION NO. 795 OF 2002 WITH WRIT PETITION NO. 789 OF 2003 ALONG WITH NOTICE OF MOTION NOS. 45 OF 2008, 47 OF 2008 & 311 OF 2009
Decided on: 11-01-2012
For the Appellant:K.K. Singhvi, Senior Advocate with Gaurav Joshi, A.A. Joshi, Gautam Bhagwat, instructed by M/s. Divekar & Co., Advocates.
For the Respondents:R1, A.Y. Sakhare, Senior Advocate with Ms. P.A. Purandare, R2 & R3, Ms. Smita Gaidhani, R.J. Mane, Assistant Government Pleaders.
Headnote:
The Court held that the reservation in question is lapsed and the property stands released from reservation.
Fact of the Case:
The petitioners are the owners of the lands bearing C.T.S. Nos. 325, 430, 405, 330, 429, 331, 419, 329, 326 and 425 totally admeasuring about 4905.03 sq.mtrs. located at village Chakala, Tal. Andheri. Initially the lands were kept under reservation in the year 1964 for the purpose of public garden. The Development Plan thereafter came in the year 1966 and in the same the land was reserved for garden. It is pointed out to the Court by Mr. Singhvi that in the meanwhile till 1986 the acquisition proceedings went on. However, no award was made by the SLAO as the respondent No.1Corporation did not deposit the money, as the Corporation deposits the money as per the priority in connection with various acquisition cases. It is submitted by Mr. Singhvi that since the purchase notice given by the original petitioner on 14th October, 1974 was confirmed by the State Government, no steps were taken for acquiring the land and, therefore, in view of the same, appropriate writ order or direction may be issued by this Court in view of the fact that no steps had been taken on the basis of the first purchase notice issued by the petitioner in 1974.
Finding of the Court:
The Court held that the reservation in question is lapsed and the property stands released from reservation.
Issues: Whether the reservation of land can be said to have been lapsed by virtue of the first purchase notice given on behalf of the original petitioners in the year 1974 and as to whether in view of the dismissal of the writ petition, this Court can give such a direction in the present writ petitions.
Ratio Decidendi: The Court held that the rights of the parties are already decided in connection with lapsing of reservation on the basis of 74 purchase notice and on merits since the claim is rejected, it would not be proper to entertain subsequent petition especially when the said order has not been set aside in the review petition. Simply because liberty to apply was given in the review petition, it cannot be interpreted that the Division Bench while deciding the review petition has reached any conclusion that the reservation in view of the first purchase notice shall stand lapsed. In a given case, if the petition is rejected on merits and if the rights of the parties are already determined in earlier proceedings, the subsequent petition can still be entertained.
Final Decision: The Court held that the reservation in question is lapsed and the property stands released from reservation.
P.B. MAJMUDAR, J.
1. Since the issue involved in both these petitions is common, both the petitions were heard together and are being disposed of by this common judgment.
2. So far as Writ Petition No. 795 of 2002 is concerned, initially the writ petition was filed by four petitioners. However, during the pendency of this petition, since the petitioner No.4 has purchased the lands referred to in the writ petition from petitioner Nos. 1 to 3 by virtue of two sale deeds both dated 9th May, 2005, by way of amendment, the names of petitioner Nos. 1 to 3 have been deleted from the array of the petitioners and now petitioner No.4 is the only petitioner who remains on record as the petitioner. So far as Writ Petition No. 789 of 2003 is concerned, initially it was filed by 45 petitioners. Since Petitioner No. 45 i.e. the same petitioner of Writ Petition No. 795 of 2002, has purchased the lands referred to in Writ Petition No. 789 of 2003 by virtue of seven sale deeds dated 9th May, 2005, 10th May, 2005 and 16th May, 2005 respectively, the names of other petitioners have been deleted from the array of the petitioners by way of amendment and the only petitioner i.e. Petitioner No. 45 is now the sole petitioner of this petition. The petitioner in both these petitions is common.
3. So far as Writ Petition No. 795 of 2002 is concerned, it is prayed by the petitioner that appropriate writ, order or direction be issued to the respondents directing them to acquire the lands of the petitioner under the provisions of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as “the Act”) read with the provisions of the Land Acquisition Act,1894 within a period of six months from the date of award and pay compensation within six months thereafter and on failure on the part of the respondents to pass award and pay compensation, the lands of the petitioner, as more particularly mentioned in Exhibit-A to the petition, may be treated to have been released from the reservation and it should be held that the same may be made available to the petitioner for development of the same. During the pendency of the writ petition, the petitioner has amended the petition with the leave of the Court and it is prayed that it may be held that the reservation in question is lapsed and the said property may be treated to have been released from reservation. So far as Writ Petition No. 789 of 2003 is concerned, it is prayed by the petitioner that appropriate writ, order or direction be issued directing the Municipal Corporation of Greater Mumbai to deposit 2/3rd of the amount of compensation payable to the petitioners towards the lands to be acquired with the Special Land Acquisition Officer No. III, respondent No.3, and directing respondent No.3 to start the acquisition proceedings and complete the same within six months. In the alternative it is prayed that if the land is not acquired within six months, appropriate direction may be given to respondent No.1 to dereserve the lands of the petitioner from reservation. During the pendency of this petition, an amendment was carried out with the leave of the Court by taking a point about lapsing of reservation and prayer is also amended and it is prayed that the reservation of the property in question is lapsed and it may be held that the property stands released from reservation and the same be made available to the petitioner for development.
4. The point regarding lapsing of reservation is taken subsequent to the filing of the petition as in the original petitions, the main prayer was regarding acquiring of the land and payment of compensation. It is the case of the petitioner in Writ Petition No. 795 of 2002 that he is the owner of the lands bearing C.T.S. Nos. 327, 406 to 408, 415, 417, 423 to 429, 432 (Part) and 433 (Part) admeasuring about 8361.0 sq.mtrs. located at at village Chakala, Andheri (East). So far as Writ Petition No. 789 of 2003 is concerned, the petitioner is the owner of
