Disposed

Kedarnath Dwarkadas Mantri v. Municipal Council , Ambad

Bombay HC7 Dec 2018WP/1578/2002

Case brief

AI extract

What is this about?

The High Court dismissed the writ petitions challenging the sustainability of a notice under Section 51 of the MRTP Act. The court held that since no acquisition steps were taken following a Section 127 notice, the reservation lapsed by operation of law, rendering the Section 51 notice unsustainable. Compensation was denied for lack of specific pleading.

What did the court decide?

The notice under Section 51 of the MRTP Act was set aside; the writ petitions were disposed of with no costs.

Kedarnath Dwarkadas Mantri Vs Municipal Council… — Municipal and Town Planning | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 1656 OF 2003

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Shamlal Lachhiram Bajaj.. Petitioner
Versus
State of Maharashtra and others.. Respondents

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Mr. R. R. Mantri h/f. Mr. M. K. Deshpande,
Advocate for the Petitioner.

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Mr. V. S. Badakh, A.G.P. for Respondent Nos. 1 to
4, 6 and 7.

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Mr. S. S. Patunkar, Advocate for Respondent No. 5.
Mr. S. G. Chapalgaonkar, Advocate for Respondent
No. 8.

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Mr. Ram B. Deshpande, Advocate for Respondent
No. 9.

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WITH

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WRIT PETITION NO. 1578 OF 2002

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Kedarnath Dwarkadas Mantri.. Petitioner
Versus
Municipal Council, Ambad and another .. Respondents

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Mr. S. S. Bora, Advocate for the Petitioner.
Mr. V. S. Badakh, A.G.P. for Respondent No. 2.

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CORAM: S. V. GANGAPURWALA &

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R. G. AVACHAT, JJ. DATE: 07th DECEMBER, 2018

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PER COURT :

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1.The Writ Petition No. 1578 of 2002 is filed

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challenging the notice dated 12th April, 2002

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issued by the Municipal Council purportedly under Section 51 of the Maharashtra Regional and Town Planning Act, 1966 ( hereinafter referred to 'MRTP Act' ). The Writ Petition No. 1656 of 2003 is filed seeking implementation of the order dated 6^th March, 1986 passed by the Collector. So also, seeks cancellation of the order dated 30^th December, 1997 regularising the lease in favour of respondent no. 8 - Mr. Kedarnath Mantri.

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2.Mr. R. R. Mantri, learned Advocate for the
petitioner in Writ Petition No. 1656 of 2003
submits that the petitioner Mr. Bajaj is the owner
of land bearing Plot No. 36 of survey no. 84 in
the vicinity of Municipal Council, Ambad. The
petitioner has constructed the hotel on the said
premises under a legitimate permission and is
running his business. The learned counsel submits
that one Mr. Haribhau Tak, Saraswatibai and
Shriram Narayan Tak were allotted plots in survey

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no. 95/2 adjacent to the plot owned by the
petitioner. The said plots were allotted by the

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Government as they were project affected persons.
The respondent made illegal construction and
encroached upon the service road. The petitioner
filed complaint. The respondent no. 9 again
started encroachment. The petitioner filed
complaint before the Lokayukta. Tri-party
compromise took place between the petitioner and
respondent no. 9 in presence of respondent nos. 2
to 5. Pursuant thereto, the Collector Jalna passed
an order on 6th March, 1986. After the order is
passed by the Collector thereby directing that
land should be made available for the road from
the plot allotted to Mr. Haribhau Tak in Survey
No. 95 and the plots of Mr. Haribhau Tak and other
project affected persons should be shifted towards
the south and before making available the land for
the road the project affected persons should be
allotted the plot. It was also further directed in
the said order that the Town Planner, Jalna and
the Tahsildar should make a joint inspection and
measurement shall be carried out and the

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boundaries of the plots shall be fixed. The
measurement was undertaken. The measurement map is
prepared. It is also observed by the Town Planner
under its letter dated 09th May, 1986 that after
making available the service road and the road the
plots that would remain are triangular in nature
and the construction is not viable on the said
plots. The learned counsel submits that the
respondents unauthorisedly committed encroachment
abutting to the same, as such the road as was
suggested in the compromise and under the order of
the Collector was never made properly available to
the petitioner. The respondents are duty bound to
make available the road nor they can ramain on the
same plot which were originally allotted to them
as they are required to be shifted to the other
place as the other plots are required to be
shifted towards the south.

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3.The learned counsel further submits that

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Saraswatibai executed lease deed in favour of
Mr. Kedarnath Mantri for a period of 99 years.

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The said lease deed is not registered. Moreover,
Saraswatibai being an allottee of a plot as
project affected person did not have authority to
execute lease for 99 years. The order regularising

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the lease by the Collector, Jalna dated 30th
December, 1997 is against the rules and is not
permissible. The learned counsel submits that for

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the loss sustained by the petitioner, the

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petitioner is entitled for compensation.

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4.Mr. Chapalgaonakr, learned Advocate for

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respondent no. 8 in Writ Petition No. 1656 of 2003
submits that the respondent no. 8 under the
registered lease deed dated 03.12.1986 is in
possession of Plot No. 2Survey No. 95/2 alloted
to Saraswatibai. The lease deed is for 99 years.
The lease deed for the period of 99 years executed
in favour of respondent no. 8 by Saraswatibai is
regularised by the Collector under order dated 30th
December, 1997. The learned counsel submits that

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the order dated 6th March, 1986 passed by the
Collector, Jalna is already implemented by the

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Authorities and 25 feet road as per the layout
plan is vacant and the possession of the same is
also handed over to the Municipal Council. The
Panchanama was prepared on 19th June, 1986. The
possession receipt is also issued by the
Authorised Officer of the Municipal Council on the
said date. According to the learned counsel, the
respondent no. 8 has also issued notice under
Section 127 of the MRTP Act to the Municipal
Council. No steps are taken for the acquisition by
the Municipal Council. By operation of statute
the said reservation stands lapsed.

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5.Mr.Deshpande,learnedAdvocatefor

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Respondent no. 9 adopts the arguments of
Mr. Chapalgaonkar and further submits that the
petitioner Mr. Bajaj had filed a civil suit
against respondent no. 9 for injunction. The
Exhibit-5 for temporary injunction was rejected.

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The appeal was dismissed. The suit was
compromised, whereby the petitioner herein
accepted the plot of respondent no. 9 adjacent to

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his plot. The petitioner suppressed this fact at
the time of filing the writ petition. The said
compromise is executed on 26th March, 1995.

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6.Mr. Bora, learned Advocate for the petitioner
in Writ Petition No. 1578 of 2002 submits that the
Municipal Council has not disputed the receipt of
notice under Section 127 of the MRTP Act. No steps
were taken for acquisition for a period of one
year, the reservation stood lapsed. In view of
that notice under Section 51 under the MRTP Act
was not tenable.

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7.After having heard the learned counsel for
the respective parties it appears that the arena
of the dispute is in a very limited compass i.e.
the 25 feet road to be made available to the
petitioner - Mr. Bajaj. It is not a matter of
dispute that the petitioner - Mr. Bajaj is the
owner and possessor of Plot No. 36 in Survey No.

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84 in the vicinity of Municipal Council, Ambad.
It also appears that Saraswatibai, Haribhau and

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Shriram were allottees of plots 1, 2 and 3 from
Survey No. 95/2 being project affected persons.
Their appears to be dispute amongst the parties of
the service road to the petitioner - Mr. Bajaj.
The dispute went before the Lokayukta of
Maharashtra. The compromise took place between
Haribhau Tak and the petitioner Mr. Bajaj.
Pursuant to the same, the order is passed by the
Collector, Jalna on 6th March, 1986. It appears
that the Saraswatibai and Shriram were not party

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to the compromise, however they have not
challenged the order dated 6th March, 1986 passed
by the Collector, Jalna and the said order appears

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to have been accepted by all the three allottees
of plots 1, 2 and 3 of land Survey No. 95/2.

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8.It is clear that the service road has to be
made available to the petitioner - Mr. Bajaj from
Survey No. 95 as per the said order and the road
would be north south. The order states that to the

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extent of road the allottees of the plot/
respondents will be shifted towards

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the south and they should be allotted that much
area of the plot. Further the joint inspection was
required to be made by Tahsildar, Commissioner and
the Town Planner and the boundaries shall be
fixed. The map has been prepared. After the
measurement the joint inspection has been made.
The area to be affected under the 25 feet road has
been earmarked and the said area has been handed
over in possession of the Municipal Council on 19th
June, 1986. The possession receipts also executed
by Mr. Chaudhari on behalf of the Municipal
Council on 19th June, 1986. The steps pursuant to
the order dated 6thMarch, 1986 has been
undertaken. It further appears that there was a
dispute between the petitioner - Mr. Bajaj and
respondent no. 9 - Mr. Tak. The said suit
culminated into compromise. The compromise is not
further challenged. The parties are also bound by
the same.

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9.It would be seen that the order of the
Collector has been implemented. If at all after

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the land under the service road is taken in
possession by the Municipal Council and if any
encroachment takes place in the area of the road,
Municipal Council shall take action for removal of
encroachment in accordance with law and it would
be guided by the order of the Collector dated 6th
March, 1986.

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10.As far as the lease between the Saraswatibai
and Mr. Kedarnath Mantri is concerned, Mr. Bajaj
is a stranger to the lease. By the said lease it
cannot be said that the rights of the petitioner
are affected. Of course, if on the basis of the
lease deed the order dated 6th March, 1986 passed
by the Collector is being transgressed, the
petitioner has every right to agitate about the
encroachment on the road. However, as far as the
private transaction is concerned, the petitioner
may not have much say in the same. The lease deed
appears to be a registered lease deed and the said
lease deed is regularised by the Collector under
order dated 20th December, 1997.

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11.As far as the prayer of the petitioner -

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Mr. Bajaj for compensation is concerned the
details with regard to the alleged damage / loss
sustained are not pleaded. The compensation cannot
be awarded for asking. The damage caused or the
loss sustained has to be specifically pleaded and
proved. The prayer for compensation in absence of
details of the loss sustained and / or the damage
caused cannot be quantified and awarded.

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12.The Writ Petition No. 1656 of 2003 is
accordinglydisposedofwithaforesaid

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observations.

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13.As far as Writ Petition No. 1578 of 2002 is
concerned, as observed, the respondent Municipal
Council has not disputed the notice received under
Section 127 of the MRTP Act. The petitioner has
stepped into the shoes of Saraswatibai, the
allottee of that land and the said lease is also
regularised. The petitioner would be the person
interested. Under Section 127 of the MRTP Act, it

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is not necessary that only owner is entitled to
give notice. The person interested and in
occupation is also entitled to issue notice under
Section 127 of the MRTP Act.

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14.It is also not contended by the respondent
Municipal Council that any declaration under
Section 126 of the MRTP Act read with Section 6of
the Land Acquisition Act, 1894 was at any material
point of time issued. The same is not issued till
date also. It is by operation of law the
consequence mentioned in Section 127 of the MRTP
Act about lapsing of reservation takes place. The
notice is issued under Section 51 of the MRTP Act
on the sole ground that the construction
permission is not in consonance with the
development plan. The respondents have not
disputed about the receipt of notice under Section
127 of the the MRTP Act and not taking effective
steps for acquisition. The notice under Section 51
of the MRTP Act, as such, would not be sustained
and the same is set aside.

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15.Further it is made clear that we have not
dealt with the rights of the Municipal Council
under Section 54 of the MRTP Act.

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16.The writ petitions accordingly stand disposed
of. No costs.

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[R. G. AVACHAT, J.] [S. V. GANGAPURWALA, J.]

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marathe

Kedarnath Dwarkadas Mantri v. Municipal Council , Ambad

Case brief

What is this about?

What did the court decide?

Kedarnath Dwarkadas Mantri v. Municipal Council , Ambad

Case brief

What is this about?

What did the court decide?

What the court decided

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