Full Judgment Text
2015:BHC-AS:664-DB
1 wp9168
ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.9168 OF 2013
Uday Madhavrao Patwardhan & Ors. ...Petitioners
vs.
Sangli, Miraj & Kupwad Municipal
Corporation, Sangli and ors. ...Respondents
Mr.Tejpal Ingale for the petitioner
Mr.G.H.Keluskar for the respondent Nos.1 and 2
Mr.V.S.Gokhale, AGP for respondent No.3
CORAM : A.S.OKA, &
A.K.MENON, JJ.
DATE : JANUARY 9, 2015
ORAL JUDGMENT: (PER A.S.OKA,J.)
1 Writ Petition is called out for final hearing.
With a view to appreciate the submissions made
across the bar, it will be necessary to make a
reference to the factual aspects of the case. The
Development Plan for the city of Miraj was
sanctioned under subsection (1) of section 31 of
the Maharashtra Regional and Town Planning Act,1966
th
(for short `MRTP Act') on 26 April 1979. The
petitioners are claiming to be the owners of the
lands more particularly described in paragraph 3 of
the petition (for short “the said lands”). Under
the sanctioned Development Plan (for short
“sanctioned D.P”), the said lands of the petitioners
were covered by reservation No.65 which was for
“Housing for Dishoused & E.W.S Housing”. In the
year 1988, the SangliMiraj and Kupwad Municipal
Corporation was established under the Maharashtra
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Municipal Corporations Act, 1949 and the area
covered by the Miraj Municipal Council was included
in the limits of the said Municipal Corporation.
Thus, the respondent no.1Corporation is the
successor of the Miraj Municipal Council which was
the Planning Authority within the meaning of the
MRTP Act.
2 The petitioners are relying upon a notice under
th
section 127 of the MRTP Act dated 26 September 2008
in relation to the said lands. The notice which
was served upon the respondent No.2 was replied by a
th
letter dated 27 October 2008 by stating that the
petitioners have not produced 7/12 extracts, Phalani
Map, Survey map etc. It is the case of the
petitioners that they produced the said documents.
A statement to that effect has been made in the
th
letter dated 20 July 2011 which was addressed by
the petitioners to the Commissioner of the
respondent No.1Corporation. An application was
made by the petitioner for grant of development
permission which was rejected on the ground that the
said lands were affected by the reservation No.65.
3 Before the said notice was served by the
th
petitioners, on 4 March 2005, a draft revised
th
Development Plan was published. On 4 March 2012,
the draft Revised Development Plan (for short
'Revised D.P') was sanctioned by the State
Government by exercising power under subsection (1)
of section 31 read with section 38 of the MRTP Act.
The petitioners are relying upon the orders passed
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by this Court in Writ Petition filed by the co
owners of a part of the said lands in which, by
relying upon the notices issued under section 127 of
the MRTP Act, this Court declared that the
reservation No.65 has lapsed.
4 The first prayer in the petition is for a
declaration that the reservation covered by site
No.65 on the said lands has lapsed by virtue of
section 127 of the MRTP Act. The second prayer is
th
for quashing the revised D.P dated 4 April 2012 in
relation to the said lands.
5 There is a reply filed by the Assistant
Director of Town Planning of the respondent No.1
Corporation. It is stated that the same reservation
No.65 was maintained in the revised D.P. The
contention is that the petitioners could not have
issued a notice on the basis of the reservation
under the revised D.P as the period of 10 years has
not lapsed from the date of which revised D.P came
into force. The other contention is that the
petitioners did not comply with the requisitions
th
contained in the letter dated 27 October 2008.
6 The learned counsel for the petitioners
contended that under the provisions of section 127
as it stood on the date on which the notice under
section 127 was served, there was no requirement of
producing documents showing title in respect of the
land subject matter of the notice and the said
requirement was brought on the statute book in the
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year 2009. Thus, the reservation No.65 affecting
the said lands under the sanctioned D.P had
admittedly lapsed as no steps were taken on the
basis of the notice under section 127 of the MRTP
Act within the time stipulated therein. He relied
upon a decision of the Apex Court in the case of
Bhavnagar University vs. Palitana Sugar Mill (P)
1
Limited and others . He also relied upon the various
decisions of this Court including the decisions in
the case of Kishor Gopalrao Bapat and others vs.
2
State of Maharashtra and another and Baburao
Dhondiba Salokhe vs. Kolhapur Municipal Corporation
3
and another . He urged that the rights accrued to
the petitioner by virtue of a notice under section
127 of the MRTP Act cannot be defeated by imposing
the same reservation under the revised D.P and
therefore, the said reservation will have to be held
as illegal.
7 The learned counsel for the respondent No.1
Planning Authority submitted that on the basis of
th
the notice dated 26 September 2008, the present
th
petition has been filed on 17 September 2013 and
therefore, there is a gross delay which is not
explained by the petitioner. He relied upon the
decision of the Division Bench of this Court in case
of Prafulla C. Dave and others vs. Municipal
4
Commissioner and others . Relying upon the said
decision, he urged that merely because on the basis
of the sanctioned D.P., a notice under section 127
1 (2003) 2 Supreme Court Cases 111
2 2005(5) Bom.C.R. 682
3 2003 (5) Bom.C.R.232
4 2007 (6) Bom.C.R. 520
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of the MRTP Act was issued, the discretion of the
Planning Authority and the State Government under
section 38 cannot be taken away as a revised D.P
sanctioned in accordance with section 38 is for all
purposes a Development Plan under section 31 of the
MRTP Act. He would, therefore, urge that no
interference can be made with the reservation
imposed in the revised D.P.
8 We have considered the submissions. The first
issue will be as regards the legality and validity
th
of the notice dated 26 September 2008 under section
127 of the MRTP Act. The objection of the first
respondent is based on the failure of the
petitioners to submit the documents such as 7/12
extract, Phalani Map, Survey Map etc along with the
th
notice. In the letter dated 20 July 2011 addressed
by the petitioners to the Commissioner of the
respondent No.1, the petitioners have claimed that
the said documents were already submitted in terms
th
of letter dated 20 October 2008. A specific
averment to that effect has been made in the said
th
letter dated 20 July 2011 annexed to this petition.
In the reply filed by the Assistant Director of Town
Planning of the respondent No.1, what is stated in
the letter at Exh.B is not disputed. It must be
noted here that neither in the communication dated
nd
22 October 2008 nor in the reply filed by the
respondent No.1, the case made out by the
petitioners that they are the coowners of the said
lands has been disputed.
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9 Moreover, the requirement of submitting
documents showing title or interest of the person
issuing a notice under section 127 along with the
said notice was brought on the statute book by the
th
Maharashtra Act No.10 of 2009 with effect from 26
June 2009. Therefore, on the ground set out in the
nd
letter dated 22 October 2008 issued by the
respondent No.1, the notice cannot be held to be
illegal.
10 There is no dispute that the steps as required
by section 127 were not taken by the Planning
Authority within the statutory period and,
therefore, on the basis of the law laid down by the
Apex Court in the case of Shrirampur Municipal
5
Council vs. Satyabhamabai Bhimaji Dawkher ,
reservation No.65 imposed by the sanctioned D.P
stood lapsed.
11 The second issue which arises for consideration
is the effect of the revised D.P which came into
force subsequent to the lapsing of reservation on
th
the basis of the notice dated 26 September 2008.
As stated earlier, in the revised D.P, the same
reservation was shown on the said lands. The learned
counsel for the petitioner has relied upon the
decision of the Apex Court in the case of the
Bhavnagar University which has been extensively
considered by a Division Bench in the case of
Baburao Salokhe. In the said case before the
Division Bench, the petitioner was the owner of a
5 (2013) 5 SCC 627
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land which was reserved under the sanctioned D.P
th
which came into force with effect from 15 October
th
1977. On 8 August 1991, a notice under section 127
of the MRTP Act was served by the petitioner. On
the basis of the said notice, writ petition No.1193
of 2008 was filed in this Court seeking a
declaration that the reservation is deemed to have
lapsed and that the petitioner are entitled to
develop the land in question. During the pendency of
the Writ Petition, a revised D.P was sanctioned on
th
18 December 1999 in which same reservation was
shown on the land in respect of which the notice
under section 127 was served earlier. After
considering the decision in the case of Bhavnagar
University, in paragraph 17, the Division Bench has
held thus :
“17 The legal position as regards
M.R.T.P.Act on the basis of aforesaid
observations made by Apex Court in
Bhavnagar University emerges that by
imposition of a statutory obligation under
section 38 on the part of the State or the
appropriate authority to revise the
Development Plan the rights of the owners
accrued in terms of section 127 are not
taken away. Section 38 of M.R.T.P.Act, in
our opinion, does not and cannot be read to
mean that substantial right conferred upon
the owner of the land or the person
interested under section 127 is taken away.
In other words, section 38 does not
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envisage that despite the fact that in
terms of section 127, the reservation
lapsed, only because of a draft revised
Development Plan or final revised
Development Plan is made would
automatically result in revival of
reservation that had lapsed. If the
reservation of the petitioners land for the
purposes of garden had lapsed and as we
found in fact has lapsed on 28.2.1992,
because of draft revised plan made in the
year 1992 and thereafter final revised
Development Plan sanctioned in the year
1999 would not revive the lapsed
reservation.....”
(underline supplied)
12 Thereafter, the Division Bench proceeded to
consider another decision of this Court in the case
of Prakash Rewadmal Gupta Vs. Lonavala Municipal
6
Council on which a heavy reliance was placed before
the Division Bench by the Counsel representing the
Planning Authority. In paragraph 18 of the
decision, the Division Bench held that the decision
in the case of Prakash Rewadmal Gupta was not
consistent with the law laid down by the Apex Court
in the case of Bhavnagar University. In paragraph
18 of the said decision, the Division Bench held
thus:
“18 In our considered view, the
6 2002 (2) Bom.C.R. 484
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observations made in para 23 of the Prakash
Rewadmal Gupta are not consistent with the
law laid down by Apex Court in Bhavnagar
University to the effect that section 21 of
Gujarat Act (similar to section 38 of
M.R.T.P.Act) which imposes statutory
obligation on the part of the State and the
appropriate authority to revise the
Development Plan does not take away the
rights of owners in terms of subsection
(2) of section 20 (similar to section 127
of M.R.T.P.Act). As per the proposition
propounded by Apex Court in Bhavnagar
University when applied to sections 38 and
127 of M.R.T.P.Act it can safely be held
that section 38 does not envisage that
despite the fact that in terms of section
127, the designation or reservation shall
lapse, the same, only because a draft
revised plan is made, would automatically
give rise to revival thereof. Section 38
does not manifest a legislative intent to
curtail or take away the right acquired by
a landowner under section 127 of getting
the land defreezed.”
Therefore, the Division Bench proceeded to hold that
the reservation for garden on the land of the
petitioner provided in the original sanctioned D.P
stood lapsed and the revised D.P under section 38
does not take away the right of the land owner
accrued to him under section 127.
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13 In the case of Kishor Gopalrao Bapat (supra), a
similar view has been taken by the another Division
Bench of this Court. Now we turn to the decision in
the case of Prafulla C. Dave and others (supra)
relied upon by the learned counsel for the
respondent No.1. This was a case where the land of
the petitioner was reserved for garden in the
th
sanctioned D.P notified on 8 July 1966. In the
th
revised D.P dated 5 January 1987, the said
reservation was continued. A notice under section
th
127 of the M.R.T.P Act was purportedly issued on 5
October 1989. Notice was issued much before the
completion of period of 10 years from the date on
th
which the revised D.P dated 5 January 1987 came
into force. It appears that the argument before
the Division Bench was that the reservation in the
original sanctioned D.P and the revised D.P was the
same and therefore, on the basis of the notice dated
th
5 October 1989, the reservation under the original
th
D.P dated 8 July 1966 will lapse and consequently,
the similar reservation in revised D.P will also
lapse. This contention was dealt with by the
Division Bench and ultimately, it was held that a
Revised D.P made and sanctioned under section 38 of
the MRTP Act is for all purposes a final Development
Plan under section 31. In paragraph 12 of the said
decision, the Division Bench considered the case of
Baburao Salokhe. The Division Bench observed that
the decision in the case of Baburao Salokhe (supra)
does not support the contention raised in the
petition on the basis of a premature notice. The
decision in Prafulla C. Dave was in a case where
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before the Revised D.P came into force, a notice
under section 127 was not issued on the basis of the
reservation in the original sanctioned D.P.
Therefore, the reservation under original sanctioned
D.P was in force. The notice under section 127 of
the MRTP Act was issued after the revised D.P was
sanctioned. The said notice was premature as it was
issued before the completion of the period of ten
years from the date on which the sanctioned Revised
D.P came into force. Hence, this decision in the
case of Prafulla C. Dave will not apply to the facts
of the case.
14 Therefore, the scenario which emerges is that
the law laid down by the Division Bench in the case
of Baburao Salokhe (supra) will squarely apply to
th
this case. The revised D.P was sanctioned on 4
April 2012. Before the date of sanction of revised
th
D.P., on the basis of the notice dated 26 September
2008, the reservation imposed under the original
sanctioned D.P stood lapsed by operation of section
127. It is an admitted position that the reservation
under the revised D.P is the same as the one under
the sanctioned D.P which had lapsed. Therefore, by
the revised D.P, the right accrued to the petitioner
th
by virtue of the notice dated 26 September 2008 is
sought to be taken away. It is not permissible to do
so in view of the law laid down by the Apex Court
and this Court. Therefore, the reservation of the
said lands in the revised D.P for “Housing for
Dishoused & E.W.S. Housing” will have no legal
effect.
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15 The last issue is of the delay in filing the
petition. It is contended that on the basis of the
th
notice of 26 September 2008, present petition has
been filed in the year 2013. After service of a
valid notice under section 127 to either the
Appropriate Authority or the Planning Authority, as
the case may be, if steps as contemplated by section
127 are not taken within the period stipulated in
the section, the reservation shall be deemed to have
been lapsed and the land in respect of which the
notice is issued shall be deemed to be released from
the reservation. Thus, by operation of law the land
stands released from the reservation and the
Planning Authority or the Appropriate Authority
cannot treat the land as reserved. In fact, there
is no need for the owner to seek a declaration from
the Court of law on the basis of notice under
section 127. The effect of lapsing of reservation
on the basis of the notice is automatic. In this
case, there is also a challenge to the reservation
imposed by the revised D.P which was sanctioned on
th th
4 April 2012. In fact, cause of action arose on 4
April 2012 as the said lands were again shown
reserved for the same purpose for which the earlier
reservation had lapsed by operation of law. Hence,
the issue of delay will not arise.
16 We must note here that we have examined the
case in the context of the peculiar fact that the
reservation in the original sanctioned D.P and the
reservation in the revised D.P is identical. A case
of an altogether different reservation provided in
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Revised D.P after the lapse of reservation under the
original sanctioned D.P may stand on a different
footing.
17 Accordingly, the petition must succeed. Hence,
we pass the following order:
(I) Rule is made absolute in terms of prayer
clause b(i);
(II) We hold that the reservation provided in
th
revised D.P dated 4 April 2012 in relation to
the said lands described in paragraph 3 of the
petition will not apply as the right already
accrued to the petitioner under section 127 of
the M.R.T.P Act cannot be taken away. Thus,
the said reservation in the Revised D.P in
relation to the said lands will be of no legal
consequence;
(III) We direct the State Government to issue a
notification in terms of subsection (2) of
section 127 of the M.R.T.P Act within a period
of three months from today only in relation to
the said lands;
(IV) If an application for seeking development
permission is made by the petitioner, the same
shall be decided by the respondent No.1 in the
light of this Judgment and order;
(V) Writ Petition is allowed on above terms.
(A.K.MENON,J.) (A.S.OKA,J.)
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ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.9168 OF 2013
Uday Madhavrao Patwardhan & Ors. ...Petitioners
vs.
Sangli, Miraj & Kupwad Municipal
Corporation, Sangli and ors. ...Respondents
Mr.Tejpal Ingale for the petitioner
Mr.G.H.Keluskar for the respondent Nos.1 and 2
Mr.V.S.Gokhale, AGP for respondent No.3
CORAM : A.S.OKA, &
A.K.MENON, JJ.
DATE : JANUARY 9, 2015
ORAL JUDGMENT: (PER A.S.OKA,J.)
1 Writ Petition is called out for final hearing.
With a view to appreciate the submissions made
across the bar, it will be necessary to make a
reference to the factual aspects of the case. The
Development Plan for the city of Miraj was
sanctioned under subsection (1) of section 31 of
the Maharashtra Regional and Town Planning Act,1966
th
(for short `MRTP Act') on 26 April 1979. The
petitioners are claiming to be the owners of the
lands more particularly described in paragraph 3 of
the petition (for short “the said lands”). Under
the sanctioned Development Plan (for short
“sanctioned D.P”), the said lands of the petitioners
were covered by reservation No.65 which was for
“Housing for Dishoused & E.W.S Housing”. In the
year 1988, the SangliMiraj and Kupwad Municipal
Corporation was established under the Maharashtra
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Municipal Corporations Act, 1949 and the area
covered by the Miraj Municipal Council was included
in the limits of the said Municipal Corporation.
Thus, the respondent no.1Corporation is the
successor of the Miraj Municipal Council which was
the Planning Authority within the meaning of the
MRTP Act.
2 The petitioners are relying upon a notice under
th
section 127 of the MRTP Act dated 26 September 2008
in relation to the said lands. The notice which
was served upon the respondent No.2 was replied by a
th
letter dated 27 October 2008 by stating that the
petitioners have not produced 7/12 extracts, Phalani
Map, Survey map etc. It is the case of the
petitioners that they produced the said documents.
A statement to that effect has been made in the
th
letter dated 20 July 2011 which was addressed by
the petitioners to the Commissioner of the
respondent No.1Corporation. An application was
made by the petitioner for grant of development
permission which was rejected on the ground that the
said lands were affected by the reservation No.65.
3 Before the said notice was served by the
th
petitioners, on 4 March 2005, a draft revised
th
Development Plan was published. On 4 March 2012,
the draft Revised Development Plan (for short
'Revised D.P') was sanctioned by the State
Government by exercising power under subsection (1)
of section 31 read with section 38 of the MRTP Act.
The petitioners are relying upon the orders passed
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by this Court in Writ Petition filed by the co
owners of a part of the said lands in which, by
relying upon the notices issued under section 127 of
the MRTP Act, this Court declared that the
reservation No.65 has lapsed.
4 The first prayer in the petition is for a
declaration that the reservation covered by site
No.65 on the said lands has lapsed by virtue of
section 127 of the MRTP Act. The second prayer is
th
for quashing the revised D.P dated 4 April 2012 in
relation to the said lands.
5 There is a reply filed by the Assistant
Director of Town Planning of the respondent No.1
Corporation. It is stated that the same reservation
No.65 was maintained in the revised D.P. The
contention is that the petitioners could not have
issued a notice on the basis of the reservation
under the revised D.P as the period of 10 years has
not lapsed from the date of which revised D.P came
into force. The other contention is that the
petitioners did not comply with the requisitions
th
contained in the letter dated 27 October 2008.
6 The learned counsel for the petitioners
contended that under the provisions of section 127
as it stood on the date on which the notice under
section 127 was served, there was no requirement of
producing documents showing title in respect of the
land subject matter of the notice and the said
requirement was brought on the statute book in the
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year 2009. Thus, the reservation No.65 affecting
the said lands under the sanctioned D.P had
admittedly lapsed as no steps were taken on the
basis of the notice under section 127 of the MRTP
Act within the time stipulated therein. He relied
upon a decision of the Apex Court in the case of
Bhavnagar University vs. Palitana Sugar Mill (P)
1
Limited and others . He also relied upon the various
decisions of this Court including the decisions in
the case of Kishor Gopalrao Bapat and others vs.
2
State of Maharashtra and another and Baburao
Dhondiba Salokhe vs. Kolhapur Municipal Corporation
3
and another . He urged that the rights accrued to
the petitioner by virtue of a notice under section
127 of the MRTP Act cannot be defeated by imposing
the same reservation under the revised D.P and
therefore, the said reservation will have to be held
as illegal.
7 The learned counsel for the respondent No.1
Planning Authority submitted that on the basis of
th
the notice dated 26 September 2008, the present
th
petition has been filed on 17 September 2013 and
therefore, there is a gross delay which is not
explained by the petitioner. He relied upon the
decision of the Division Bench of this Court in case
of Prafulla C. Dave and others vs. Municipal
4
Commissioner and others . Relying upon the said
decision, he urged that merely because on the basis
of the sanctioned D.P., a notice under section 127
1 (2003) 2 Supreme Court Cases 111
2 2005(5) Bom.C.R. 682
3 2003 (5) Bom.C.R.232
4 2007 (6) Bom.C.R. 520
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of the MRTP Act was issued, the discretion of the
Planning Authority and the State Government under
section 38 cannot be taken away as a revised D.P
sanctioned in accordance with section 38 is for all
purposes a Development Plan under section 31 of the
MRTP Act. He would, therefore, urge that no
interference can be made with the reservation
imposed in the revised D.P.
8 We have considered the submissions. The first
issue will be as regards the legality and validity
th
of the notice dated 26 September 2008 under section
127 of the MRTP Act. The objection of the first
respondent is based on the failure of the
petitioners to submit the documents such as 7/12
extract, Phalani Map, Survey Map etc along with the
th
notice. In the letter dated 20 July 2011 addressed
by the petitioners to the Commissioner of the
respondent No.1, the petitioners have claimed that
the said documents were already submitted in terms
th
of letter dated 20 October 2008. A specific
averment to that effect has been made in the said
th
letter dated 20 July 2011 annexed to this petition.
In the reply filed by the Assistant Director of Town
Planning of the respondent No.1, what is stated in
the letter at Exh.B is not disputed. It must be
noted here that neither in the communication dated
nd
22 October 2008 nor in the reply filed by the
respondent No.1, the case made out by the
petitioners that they are the coowners of the said
lands has been disputed.
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9 Moreover, the requirement of submitting
documents showing title or interest of the person
issuing a notice under section 127 along with the
said notice was brought on the statute book by the
th
Maharashtra Act No.10 of 2009 with effect from 26
June 2009. Therefore, on the ground set out in the
nd
letter dated 22 October 2008 issued by the
respondent No.1, the notice cannot be held to be
illegal.
10 There is no dispute that the steps as required
by section 127 were not taken by the Planning
Authority within the statutory period and,
therefore, on the basis of the law laid down by the
Apex Court in the case of Shrirampur Municipal
5
Council vs. Satyabhamabai Bhimaji Dawkher ,
reservation No.65 imposed by the sanctioned D.P
stood lapsed.
11 The second issue which arises for consideration
is the effect of the revised D.P which came into
force subsequent to the lapsing of reservation on
th
the basis of the notice dated 26 September 2008.
As stated earlier, in the revised D.P, the same
reservation was shown on the said lands. The learned
counsel for the petitioner has relied upon the
decision of the Apex Court in the case of the
Bhavnagar University which has been extensively
considered by a Division Bench in the case of
Baburao Salokhe. In the said case before the
Division Bench, the petitioner was the owner of a
5 (2013) 5 SCC 627
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land which was reserved under the sanctioned D.P
th
which came into force with effect from 15 October
th
1977. On 8 August 1991, a notice under section 127
of the MRTP Act was served by the petitioner. On
the basis of the said notice, writ petition No.1193
of 2008 was filed in this Court seeking a
declaration that the reservation is deemed to have
lapsed and that the petitioner are entitled to
develop the land in question. During the pendency of
the Writ Petition, a revised D.P was sanctioned on
th
18 December 1999 in which same reservation was
shown on the land in respect of which the notice
under section 127 was served earlier. After
considering the decision in the case of Bhavnagar
University, in paragraph 17, the Division Bench has
held thus :
“17 The legal position as regards
M.R.T.P.Act on the basis of aforesaid
observations made by Apex Court in
Bhavnagar University emerges that by
imposition of a statutory obligation under
section 38 on the part of the State or the
appropriate authority to revise the
Development Plan the rights of the owners
accrued in terms of section 127 are not
taken away. Section 38 of M.R.T.P.Act, in
our opinion, does not and cannot be read to
mean that substantial right conferred upon
the owner of the land or the person
interested under section 127 is taken away.
In other words, section 38 does not
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envisage that despite the fact that in
terms of section 127, the reservation
lapsed, only because of a draft revised
Development Plan or final revised
Development Plan is made would
automatically result in revival of
reservation that had lapsed. If the
reservation of the petitioners land for the
purposes of garden had lapsed and as we
found in fact has lapsed on 28.2.1992,
because of draft revised plan made in the
year 1992 and thereafter final revised
Development Plan sanctioned in the year
1999 would not revive the lapsed
reservation.....”
(underline supplied)
12 Thereafter, the Division Bench proceeded to
consider another decision of this Court in the case
of Prakash Rewadmal Gupta Vs. Lonavala Municipal
6
Council on which a heavy reliance was placed before
the Division Bench by the Counsel representing the
Planning Authority. In paragraph 18 of the
decision, the Division Bench held that the decision
in the case of Prakash Rewadmal Gupta was not
consistent with the law laid down by the Apex Court
in the case of Bhavnagar University. In paragraph
18 of the said decision, the Division Bench held
thus:
“18 In our considered view, the
6 2002 (2) Bom.C.R. 484
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observations made in para 23 of the Prakash
Rewadmal Gupta are not consistent with the
law laid down by Apex Court in Bhavnagar
University to the effect that section 21 of
Gujarat Act (similar to section 38 of
M.R.T.P.Act) which imposes statutory
obligation on the part of the State and the
appropriate authority to revise the
Development Plan does not take away the
rights of owners in terms of subsection
(2) of section 20 (similar to section 127
of M.R.T.P.Act). As per the proposition
propounded by Apex Court in Bhavnagar
University when applied to sections 38 and
127 of M.R.T.P.Act it can safely be held
that section 38 does not envisage that
despite the fact that in terms of section
127, the designation or reservation shall
lapse, the same, only because a draft
revised plan is made, would automatically
give rise to revival thereof. Section 38
does not manifest a legislative intent to
curtail or take away the right acquired by
a landowner under section 127 of getting
the land defreezed.”
Therefore, the Division Bench proceeded to hold that
the reservation for garden on the land of the
petitioner provided in the original sanctioned D.P
stood lapsed and the revised D.P under section 38
does not take away the right of the land owner
accrued to him under section 127.
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13 In the case of Kishor Gopalrao Bapat (supra), a
similar view has been taken by the another Division
Bench of this Court. Now we turn to the decision in
the case of Prafulla C. Dave and others (supra)
relied upon by the learned counsel for the
respondent No.1. This was a case where the land of
the petitioner was reserved for garden in the
th
sanctioned D.P notified on 8 July 1966. In the
th
revised D.P dated 5 January 1987, the said
reservation was continued. A notice under section
th
127 of the M.R.T.P Act was purportedly issued on 5
October 1989. Notice was issued much before the
completion of period of 10 years from the date on
th
which the revised D.P dated 5 January 1987 came
into force. It appears that the argument before
the Division Bench was that the reservation in the
original sanctioned D.P and the revised D.P was the
same and therefore, on the basis of the notice dated
th
5 October 1989, the reservation under the original
th
D.P dated 8 July 1966 will lapse and consequently,
the similar reservation in revised D.P will also
lapse. This contention was dealt with by the
Division Bench and ultimately, it was held that a
Revised D.P made and sanctioned under section 38 of
the MRTP Act is for all purposes a final Development
Plan under section 31. In paragraph 12 of the said
decision, the Division Bench considered the case of
Baburao Salokhe. The Division Bench observed that
the decision in the case of Baburao Salokhe (supra)
does not support the contention raised in the
petition on the basis of a premature notice. The
decision in Prafulla C. Dave was in a case where
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before the Revised D.P came into force, a notice
under section 127 was not issued on the basis of the
reservation in the original sanctioned D.P.
Therefore, the reservation under original sanctioned
D.P was in force. The notice under section 127 of
the MRTP Act was issued after the revised D.P was
sanctioned. The said notice was premature as it was
issued before the completion of the period of ten
years from the date on which the sanctioned Revised
D.P came into force. Hence, this decision in the
case of Prafulla C. Dave will not apply to the facts
of the case.
14 Therefore, the scenario which emerges is that
the law laid down by the Division Bench in the case
of Baburao Salokhe (supra) will squarely apply to
th
this case. The revised D.P was sanctioned on 4
April 2012. Before the date of sanction of revised
th
D.P., on the basis of the notice dated 26 September
2008, the reservation imposed under the original
sanctioned D.P stood lapsed by operation of section
127. It is an admitted position that the reservation
under the revised D.P is the same as the one under
the sanctioned D.P which had lapsed. Therefore, by
the revised D.P, the right accrued to the petitioner
th
by virtue of the notice dated 26 September 2008 is
sought to be taken away. It is not permissible to do
so in view of the law laid down by the Apex Court
and this Court. Therefore, the reservation of the
said lands in the revised D.P for “Housing for
Dishoused & E.W.S. Housing” will have no legal
effect.
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15 The last issue is of the delay in filing the
petition. It is contended that on the basis of the
th
notice of 26 September 2008, present petition has
been filed in the year 2013. After service of a
valid notice under section 127 to either the
Appropriate Authority or the Planning Authority, as
the case may be, if steps as contemplated by section
127 are not taken within the period stipulated in
the section, the reservation shall be deemed to have
been lapsed and the land in respect of which the
notice is issued shall be deemed to be released from
the reservation. Thus, by operation of law the land
stands released from the reservation and the
Planning Authority or the Appropriate Authority
cannot treat the land as reserved. In fact, there
is no need for the owner to seek a declaration from
the Court of law on the basis of notice under
section 127. The effect of lapsing of reservation
on the basis of the notice is automatic. In this
case, there is also a challenge to the reservation
imposed by the revised D.P which was sanctioned on
th th
4 April 2012. In fact, cause of action arose on 4
April 2012 as the said lands were again shown
reserved for the same purpose for which the earlier
reservation had lapsed by operation of law. Hence,
the issue of delay will not arise.
16 We must note here that we have examined the
case in the context of the peculiar fact that the
reservation in the original sanctioned D.P and the
reservation in the revised D.P is identical. A case
of an altogether different reservation provided in
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Revised D.P after the lapse of reservation under the
original sanctioned D.P may stand on a different
footing.
17 Accordingly, the petition must succeed. Hence,
we pass the following order:
(I) Rule is made absolute in terms of prayer
clause b(i);
(II) We hold that the reservation provided in
th
revised D.P dated 4 April 2012 in relation to
the said lands described in paragraph 3 of the
petition will not apply as the right already
accrued to the petitioner under section 127 of
the M.R.T.P Act cannot be taken away. Thus,
the said reservation in the Revised D.P in
relation to the said lands will be of no legal
consequence;
(III) We direct the State Government to issue a
notification in terms of subsection (2) of
section 127 of the M.R.T.P Act within a period
of three months from today only in relation to
the said lands;
(IV) If an application for seeking development
permission is made by the petitioner, the same
shall be decided by the respondent No.1 in the
light of this Judgment and order;
(V) Writ Petition is allowed on above terms.
(A.K.MENON,J.) (A.S.OKA,J.)
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