Back
2015 Supreme(Bom) 1039
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & A.K. MENON, JJ.
Maharashtra Academy of Engineering & Educational Research, Pune, and Others. - Petitioners
Vs
State of Maharashtra and Others. - Respondents
WRIT PETITION NO.2315 of 2008 with WRIT PETITION NO.892 OF 2013
Decided On : 10.07.2015
Act Referred
MAHARASHTRA LOKAYUKTA AND UPA-LOKAYUKTAS ACT : S.12(1)
MAHARASHTRA REGIONAL AND TOWN PLANNING ACT : ., S.49(1), S.49(4), S.126(2), S.126(4), S.49(7), S.126(c)(1), S.126(1), S.67(b)
Headnote
The subject matter of the petition is a land bearing CTS No.398, admeasuring about 2339 sq. meters situated at Tardeo in Mumbai. The said land is located in a prime locality in Central Mumbai. In the sanctioned Development Plan of the year 1967, the said land was reserved for a Secondary School. In the sanctioned revised development plan of the year 1991 under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”), which is in force even as of today, the said land continues to be reserved for the public purpose of Secondary School.
Fact of the Case:
The land subject matter of these Petitions is the land bearing CTS No.398 (for short “the said land”), admeasuring about 2339 sq. meters situated at Tardeo in Mumbai. The said land is located in a prime locality in Central Mumbai. In the sanctioned Development Plan of the year 1967, the said land was reserved for a Secondary School. In the sanctioned revised development plan of the year 1991 under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”), which is in force even as of today, the said land continues to be reserved for the public purpose of Secondary School.
Finding of the Court:
The reservation on the said land for Secondary School has not lapsed in accordance with Subsection (7) of Section 49 of the MRTP Act. The notification issued for acquisition on 25th March 1996 taking recourse to the provisions of the MRTP Act becomes bad in law. If it is held that the reservation did not lapse, the question will be whether the State Government had power to withdraw or cancel the acquisition proceedings by exercising the power either under Section 48 of the Land Acquisition Act or under Section 21 of the Maharashtra General Clauses Act. Another question connected with this question is whether on basis the notification dated 25th March 1996, the original owner was divested of his right, title or interest and whether the said land is vested in the State Government or the Mumbai Municipal Corporation on publication of the said notification. The issue of the legality and validity of the Government Resolution dated 24th August 2004 also arises for consideration. Another important question which needs to be decided is of the locus of the Petitioners in the Writ Petition No.892 of 2013 to challenge the acquisition and to claim that the reservation has lapsed. It will be also necessary to deal with the issue whether there is a gross delay in filing the said Petition.
Issues: 1. Whether the reservation on the said land for Secondary School has lapsed in accordance with Subsection (7) of Section 49 of the MRTP Act? 2. Whether the State Government had power to withdraw or cancel the acquisition proceedings by exercising the power either under Section 48 of the Land Acquisition Act or under Section 21 of the Maharashtra General Clauses Act? 3. Whether on basis the notification dated 25th March 1996, the original owner was divested of his right, title or interest and whether the said land is vested in the State Government or the Mumbai Municipal Corporation on publication of the said notification? 4. Whether the Government Resolution dated 24th August 2004 is legal and valid? 5. Whether the Petitioners in the Writ Petition No.892 of 2013 have the locus to challenge the acquisition and to claim that the reservation has lapsed? 6. Whether there is a gross delay in filing the said Petition?
Ratio Decidendi: 1. The reservation did not lapse on the basis of the notice dated 14th August 1993. The Writ Petition No.892 of 2013 is based on the said notice. As far as the locus of the legal representatives of the original owner is concerned, the original owner appears to have proceeded on the footing that the reservation had not lapsed on the basis of the said notice. In fact, in the conveyance dated 11th July 2007 executed by the original owner in favour of M/s.Estelle Developers Private Limited, there is a recital that the said land is subject matter of acquisition proceedings. As pointed out earlier, in the year 2000, the contention of the original owner was that the acquisition has lapsed by virtue of Section 11A of the Land Acquisition Act. In the case of Girnar Traders (3), the Apex Court has held that Section 11A of the Land Acquisition Act will not apply to the acquisition proceedings under the MRTP Act. In Writ Petition No.892 of 2013, in the alternative, there is a challenge to the acquisition proceedings initiated on the basis of the notice dated 25th March 1996. The original owner was always aware of the notification. In fact he filed a claim for compensation in the acquisition proceedings. Apart from the fact that this Petition filed at the instance of the legal representatives of the original owner on 2nd April 2013 suffers from gross delay, when the original owner did not challenge the acquisition in his life time and in fact filed a claim in the acquisition proceedings, his legal representatives are estopped from challenging the acquisition after lapse of several years. In view of the decision of the Apex Court, the third Petitioner M/s. Estelle Developers Private Limited in Writ Petition No.892 of 2013 is not entitled to challenge the acquisition proceedings. In any case, there is a gross delay even on the part of the third Petitioner as the said Petitioner was aware of the acquisition proceedings in the year 2007 when the Sale Deed was executed. 2. The vesting was already completed and, therefore, there was no occasion to again acquire the said land for the benefit of the Petitioner in the said Writ Petition. Hence, the said Government Resolution was not at all legal. 3. The said Resolution dated 24th August 2004 is not a notification by which the said land was allotted to the Petitioner in the said Writ Petition. The said Resolution itself records that the acquisition proceedings were initiated on 25th March 1996. As held by the Apex Court in the case of Manohar Joshi, the vesting was already completed and, therefore, there was no occasion to again acquire the said land for the benefit of the Petitioner in the said Writ Petition. Hence, the said Government Resolution was not at all legal.
Final Decision: Writ Petition No.2315 of 2008 is partly allowed and Writ Petition No.892 of 2013 is dismissed.
Advocate Appeared:
Shri P.K. Dhakephalkar, Senior Counsel along with Ms. Manisha Jagtap i/by Shekhar Jagtap for the Petitioners.
Dr. V.V. Tulzapurkar, Senior Counsel along with Shri Chirag kamdar i/by M/s.Purnanand & Co for the Petitioners.
Shri Janak Dwarkadas, Senior Counsel along with Shri Mohit Jadhav, AGP for the Respondent Nos.1 to 6 (State).
Shri Mohit Jadhav, AGP for the Respondent Nos.1 to 4 and 6.
Shri Milind Sathe, Senior Counsel i/by Shri Shekhar Jagtap for the Respondent No.7.
Shri S.U. Kamdar, Senior Counsel along with Shri Ritesh Jain and Shri Manish Parekh i/by Purnanand & Co for the Respondent No.8.
Shri A.Y.Sakhare, Senior Counsel along with Ms. Trupti Puranik for the BMC.
A.S. OKA, J.
OVERVIEW
1. The land subject matter of these Petitions is the land bearing CTS No.398 (for short “the said land”), admeasuring about 2339 sq. meters situated at Tardeo in Mumbai. The said land is located in a prime locality in Central Mumbai. In the sanctioned Development Plan of the year 1967, the said land was shown reserved for a Secondary School. In the sanctioned revised development plan of the year 1991 under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”), which is in force even as of today, the said land continues to be reserved for the public purpose of Secondary School.
2. Late Nowrosji Jehangir Gamadia (for short “the original owner”) was claiming to be the absolute owner of the said land. The first and second Petitioners in Writ Petition No.892 of 2013 are the Executors and Trustees of the Estate of the original owner appointed under the last Will and Testament of the original owner. The said original owner through his Advocate served a notice dated 14th August 1993 under Subsection (1) of Section 49 of the MRTP Act to the Municipal Corporation for Greater Mumbai (for short “the said Corporation) which is the Planning Authority within the meaning of the MRTP Act for the City of Mumbai. The notice was also addressed to the Secretary of the Urban Development Department of the State Government. By a letter dated 21st February 1994, the State Government informed the Advocate for the original owner that the purchase notice has been confirmed in accordance with Subsection (4) of Section 49 of the MRTP Act. On 16th February 1995, the said Municipal Corporation made an Application to the Government of Maharashtra for acquisition of the said land in accordance with Subsections (2) and (4) of Section 126 of the MRTP Act. A copy of the said letter was also submitted to the Collector of Mumbai District. On the basis of the said Application, the State Government issued a Notification dated 25th March 1995 in exercise of the powers under Subsection (2) read with Subsection (4) of Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894 (for short “the Land Acquisition Act”) recording that the said land is needed for the public purpose of a Secondary School as per the reservation provided in the sanctioned Development Plan. It appears that on 24th June 1996, the Executive Engineer (Development Plan) of the said Municipal Corporation addressed a letter to the Under Secretary of the Urban Development Department of the State Government informing that the Secondary Education was not an obligatory function of the Municipal Corporation and, therefore, he claimed that it was the School Education Department which is an Appropriate Authority to take further steps for acquiring the said land for the purposes of a Secondary School.
3. An advertisement was published on 10th October 2002 by the Secretary of the School Education Department of the State Government stating therein that the said land has been reserved for a Secondary School on which there are some encroachments. It was pointed out that the present FSI available for school purpose is of 2.66 which is likely to be doubled. Clause 2 of the said advertisement reads thus:
“2. Societies/Trusts/Parties interested in acquiring this plot at their cost may apply on plain paper to Secretary, School Education Department (Desk Officer, Shri R.N. Musale) on or before November 16, 2002 during office hours in a packet marked “Application for Development of School at Tardeo”. The interested parties will have to bear the full cost of land as determined by the competent authorities and also premium for F.S.I. In excess of 1.33 @ 2.5% of the land cost”.
4. It appears that on the basis of the said Application, the Petitioner in Writ Petition No.2315 of 2008 made an Application dated 15th November 2002 seeking
