Allowed

Sulochanabai Fakirrao Kathawate Thr Gpa Balasaheb Fakirrao Kathwate and Ors. v. the State of Mah and Ors.

Bombay HC10 Oct 2012WP/5026/2012

Case brief

AI extract

What is this about?

Petitioners challenged the lapse of land reservation under Section 127 of the MRTP Act, 1966. The Court held that reservation lapsed as a matter of law. Consequently, a subsequent proposal to revive reservation under Section 38 of the Act does not override the statutory bar created by Section 127.

What did the court decide?

Writ Petition Nos. 5025/2012, 5026/2012 and 5103/2012 are allowed; Rule made absolute in terms of prayer clause 'B'.

Sulochanabai Fakirrao Kathawate Thr Gpa Balasaheb… — Municipal and Town Planning | Bombay HC (2012)

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1 WP NO.5025,5026,5103 of 2012

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.5025 OF 2012

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1.Dinkar Narsinhrao Patil-Pawar,
Age: 45 years, Occu: Business,
r/o Shri Samarth Krushi Seva Kendra
Gala No.10, Panchayat Samiti, Vaijapur,
Tq. Vaijapur, Dist. Aurangabad.

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2.Ganesh Govindrao Dhumal,
Age: 32 years, Occu: Business,
r/o Plot No.10, Laxmi-Mohani Niwas,
Janardhan Nagar, Shivrai Road,
Vaijapur, Tq. Vaijapur,
Dist. Aurangabad.

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3.Sanjay Sahebrao Naikwadi
Through G.P.A.
Pandurang Govindrao Dhumal,
Age: 26 years, Occu: Business
r/o Plot No.10, Laxmi-Mohani Niwas,
Janardhan Nagar, Shivrai Road,
Vaijapur, Tq. Vaijapur,
Dist. Aurangabad.

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4.Shivpalsinh Jaisinh Thakare,
Age: 45 years, Occu: Business,
r/o Railway Station, Rotegaon,
Tq. Vaijapur, Dist. Aurangabad.

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5.Surajsinh Hansraj Rajput,
Age: 30 years, Occu: Agril.
r/o Pardesi Galli, Vaijapur,
Dist. Aurangabad.
...PETITIONERS
VERSUS

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1.The State of Maharashtra,
Through it's Secretary,
Urban Development Department,
Mantralaya, Mumbai 32.

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2 WP NO.5025,5026,5103 of 2012

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2. The Director of Town Planning Maharashtra State, Central Building, Pune.

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3. Assistant Director Town Planning, Jubali Park, Aurangabad.

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4. The Municipal Council, Vaijapur, Through its Chief Officer.

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...RESPONDENTS

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...

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WITH

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WRIT PETITION NO.5026 OF 2012

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1.Sulochanabai Fakirrao Kathawate,
Through G.P.A. Holder
Balasaheb Fakirrao Kathwate,
Age: 55 years, Occu: Business,
r/o. Jadhav Galli, Vaijapur,
Tq. Vaijapur, Dist. Aurangabad.

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2. Sau. Sanjeewani Balasaheb Kathawate, Age: 52 years, Occu: Household, r/o Jadhav Galli, Vaijapur, Tq. Vaijapur, Dist. Aurangabad.

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3. Sau. Shailabai Dattatraya Kathawate, Age: 48 years, Occu:Household, r/o Jadhav Galli, Vaijapur, Tq. Vaijapur, Dist. Aurangabad.

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4.Sau.Archanabai Gokulrao Kathawate,
Age: 42 years, Occu: Household
r/o Jadhav Galli, Vaijapur, Tq. Vaijapur,
Dist. Aurangabad.

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...PETITIONERS

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VERSUS

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3 WP NO.5025,5026,5103 of 2012

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1. The State of Maharashtra, Through its Secretary, Urban Development Department, Mantralaya, Mumbai 32.

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2. The Director of Town Planning Maharashtra State, Central Building, Pune.

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3. Assistant Director Town Planning, Jubali Park, Aurangabad.

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4. The Municipal Council, Vaijapur, Through its Chief Officer.

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5. Marathwada Shikshan Prasarak Mandal, Devgiri Mahavidyalaya Campus, Aurangabad, through its President.

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...RESPONDENTS

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...

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WITH

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WRIT PETITION NO.5103 of 2012

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1. Shaikh Alim s/o Abdul Gafoor, Age: 49 years, Occu: Agril. r/o Dargah Ves, Vaijapur, Tq. Vaijapur, Dist. Aurangabad.

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2. Smt. Manjusha Ramansing Thakre, Age: 45 years, Occu: Household, r/o Rotegaon Railway Station, Post Rotegaon, Tq. Vaijapur, Dist. Aurangabad.

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3.Motilal Gujraj Sancheti,
Age: 55 years, Occu: Business,
r/o Navjeevan Colony,
Vaijapur, Dist. Aurangabad.

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...PETITIONERS

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VERSUS

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4 WP NO.5025,5026,5103 of 2012

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1. The State of Maharashtra, Through its Secretary, Urban Development Department Mantralaya Mumbai 32.

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2. The Director of Town Planning Maharashtra State, Central Building, Pune.

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3. Assistant Director Town Planning, Jubali Park, Aurangabad.

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4. The Municipal Council, Vaijapur, Through its Chief Officer.

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...RESPONDENTS.

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...

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Shri Pradeep Deshmukh, Adv., h/f Shri H.A.Joshi,
Advocate for the petitioners.

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Shri V.H.Dighe, A.G.P., for respondent nos. 1 to
3.

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Mr.N.D.Sonawane, Advocate, for respondent no.4.

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...

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CORAM: NARESH H.PATIL AND A.B.CHAUDHARI, JJ.

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 DATE : 10/10/2012

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***

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Date of reserving the
judgment: 25/9/2012
Date of pronouncing
the judgment:10/10/2012

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***

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JUDGMENT: (Per A.B.Chaudhari, J.)

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1. Heard.

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2.Rule. Rule made returnable and heard
forthwith by consent of learned Counsel for the
rival parties.

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5 WP NO.5025,5026,5103 of 2012

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3.The following questions arise for
consideration in this writ petition:

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(1)Whether the reservation in respect
of the subject land stood de-reserved /
lapsed in view of provisions of Section 127
of the Maharashtra Regional & Town Planning
Act, 1966 ( for the sake brevity, hereafter
referred as "MRTP Act, 1966").

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(2)Whether lapsing of reservation under
Section 127 of the MRTP Act, 1966, could be
defeated by virtue of subsequent proposal for
reservation in the revised Development Plan,
again under the provisions of the MRTP Act,
1966.

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4.Having heard learned Counsel for the
rival parties, we find that it is an admitted
fact, in all these petitions that, the
reservation that was made, stood lapsed under
Section 127 of the MRTP Act, 1966. Thus, on
facts, there is no dispute that the reservation
had lapsed as a result of the legal fiction
created under Section 127 of the MRTP Act, 1966.

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We, therefore, answer question No.1 in the
affirmative.

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6 WP NO.5025,5026,5103 of 2012

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5.The case of the contesting respondent -
Municipal Council - is that the revised
development plan was prepared in which the suit
site in all these cases, has again been proposed
to be reserved and, accordingly, there was
supplementary development plan which was
published on 22.12.2011 and the revised
development plan is sent to the State Government
for further sanction under letter dated
23.12.2011. According to the Municipal Council,
the same plan is pending consideration of the
Government which is final authority to take the
decision. That is why, according to the Municipal
Council, the lapsing of reservation in respects
of the lands in question will have no effect in
view of the subsequent proposal to reserve the
land again in the light of Section 38 of the
MRTP Act. The question about exercise of power
under Section 38 of MRTP Act for reserving same
land again in respect of which lapsing took
place; in respect of Section 127 of the MRTP Act,
1966, is no more res integra and the Division
Bench of this Court decided the said question in
favour of the petitioners in case of Baburao
DhondibaSalokhevs.KolhapurMunicipal
Corporation, Kolhapur and another ( 2003(3)
Mh.L.J. 820). In paragraph No.18, this Court
quoted, thus:

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7 WP NO.5025,5026,5103 of 2012

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"18. In our considered view, the
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 MRTP
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 Sub-section (2) of Section 20 (similar to
section 127 of MRTP Act). As per the
proposition pronounced by Apex Court in
Bhavnagar University when applied to Sections
38 and 127 of MRTP 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 legislature intent to curtail or
take away the right acquired by a landowner
under Section 127 of getting the land
defreezed."

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The above view has been followed in another
Division Bench in the case of Kishore Gopalrao
Bapat and others vs. State of Maharashtra and
another(2005(4) Mh.L.J. 466) and, thereafter, in
the case Kishor s/o Siddheshwar Wadotkar (Dr.)
Vs. Director of Town Planning and others
( 2007(3) Mh.L.J. 399) and 2010 (6) ALL MR 220
( Pramod M.Patwardhan Vs. Sangli, Miraj & Kupwad
Municipal Corporation).

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The question No.2 is, therefore,
answered in negative i.e. the right created

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8 WP NO.5025,5026,5103 of 2012

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under Section 127 of MRTP Act, 1966, cannot get
extinguished by resorting afresh to Section 38 of
the Act.

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6.In the light of the above discussion, we
make following order.

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ORDER

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(1)Writ Petition Nos.5025/2012, 5026/2012
and 5103/2012 are allowed.

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Rule is made absolute in terms of prayer
clause `B' in respective petitions.

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(A.B.CHAUDHARI, J.) (NARESH H.PATIL, J.)

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...

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AGP/5025-12wpgroup

Sulochanabai Fakirrao Kathawate Thr Gpa Balasaheb Fakirrao Kathwate and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Sulochanabai Fakirrao Kathawate Thr Gpa Balasaheb Fakirrao Kathwate and Ors. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Cases cited

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