Allowed

Nazir Musa Darvesh and Ors. v. the State of Maharashtra and Anr.

Bombay HC6 Aug 2014WP/474/2011

Case brief

AI extract

What is this about?

The High Court declared that land reserved for a primary school under a development plan became available for development because acquisition proceedings were not initiated within the statutory period. The writ petition was allowed, quashing the rejection of the development permission application and directing the State Government to publish a notification deleting the reservation.

What did the court decide?

The reservation lapses; communication dated 22 November 2010 set aside; State Government directed to publish notification; application reconsidered afresh.

Nazir Musa Darvesh and Ors. Vs the State of Maharashtra… — Property and Title | Bombay HC (2014)

wp474

ssp

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION NO.474 OF 2011

¶5

Nazir Musa Darvesh & Ors.
vs.
The State of Maharashtra
and others

¶6

...Petitioners

¶7

...Respondents

¶8

Mr.Uday Warunjikar for the Petitioners
Mr.S.M.Railkar for the respondent no.2

¶9

CORAM : A.S.OKA, &
 A.S.CHANDURKAR, JJ.
 DATE : AUGUST 6,2014

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P.C.:

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1Notice for final disposal at admission stage
has been issued by this Court. Accordingly, we have
taken up the petition for final disposal.

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2In the sanctioned development plan which was
applicable to the limits of the Sawantwadi Municipal
Council, the land which is described in paragraph 3
of the petition was shown reserved for primary
school and play ground. The development plan was
approved by the State Government on 31st December
1988 in exercise of power under section 31 of the
Maharashtra Regional and Town Planning Act,1966 (for
short `the MRTP Act'). The development plan came
into force with effect from 1st April 1989. On 22nd
June 2002, the petitioners served notice under sub
section (1) of section 127 of the MRTP Act to the

¶13

2 wp474

¶14

Municipal Council. On 25th August 2003, a resolution
was passed by the General Body of the Municipal
Council which refers to the said notice dated 22nd
June 2002. It also records that within the time
stipulated under section 127 of the MRTP Act, the
acquisition proceedings ought to have been
initiated. It records that though on 19th December
2002, a proposal for acquisition was submitted by
the Municipal Council to the District Collector, but
the Council was informed about defects in the
proposal. Therefore, it was resolved that a
proposal should be submitted to the State Government
to delete the said land from reservation. The
petitioners have made a reference to the
correspondence exchanged between the Municipal
Council and the State Government.

¶15

3It appears that on 22nd October 2010, the
petitioners applied to the Municipal Council for
grant of development permission. The said
application was rejected by the communication dated
22nd November 2010 on the four grounds set out in the
said letter. One of the ground is that the land in
question is reserved in the sanctioned development
plan. In this petition under Article 226 of the
Constitution of India, a declaration is sought that
the reservation has lapsed in view of section 127 of
the MRTP Act. There is also a challenge to the
communication dated 22nd November 2010.

¶16

4We have heard the learned counsel for the
petitioners and the learned counsel for the second

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3 wp474

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respondent. There is no dispute about the service
of notice under subsection (1) of section 127 of
the MRTP Act by the petitioners to the Planning
Authority. There is also no dispute that the
proceedings for acquisition were not initiated
within the time stipulated under subsection 1 of
section 127 of the MRTP Act. Now, the law is well
settled. On the failure to initiate proceedings for
acquisition in accordance with subsection (4) of
section 126 within the time stipulated under sub
section (1) of section 127 from the on the date of
service of notice, the reservation lapses
automatically. Therefore, when the application was
made by the petitioners on 22nd November 2010 for
grant of a development permission, the reservation
had already lapsed and, therefore, on that ground
the application for grant of development permission
could not have been rejected. Therefore, writ
petition must succeed.

¶19

5Hence, we pass the following order:

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(I)We declare that the reservation imposed on
the land described in paragraph 3 of the
petition under the sanctioned development plan
dated 31st December 2008 stands lapsed and now
the said land has become available to the
owners for development in accordance with the
provisions of the development plan as regards
the adjacent land;

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(II)We direct the State Government to publish a
notification in terms of subsection 2 of

¶22

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wp474

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section 127 of the MRTP Act within a period of
three months from today;

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(III) The communication dated 22^nd November 2010 is set aside and the second respondent is hereby directed to reconsider the application dated 22^nd October 2010;

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(IV) We make it clear that we had made no adjudication on the merits of the grounds 1,2 and 4 incorporated in the said communication dated 22^nd November 2010. We also make it clear that the application for development permission cannot be rejected on the ground of the reservation in the aforesaid sanctioned development plan;

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(V) All other contentions in connection with the application made by the petitioners are kept open. The second respondent shall decide the said application afresh within a period of two months from today;

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(VI) Writ Petition is allowed on above terms.

¶29

(A.S.CHANDURKAR,J.)

¶30

(A.S.OKA,J.)

Nazir Musa Darvesh and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Nazir Musa Darvesh and Ors. v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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