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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5347 OF 2018
Bombay Salesian Society, ]
a Society registered under Societies ]
SectionRegistration Act; and a public trust ]
registered under Bombay Public Trust Act, ]
1950, through Secretary, Fr. Manuel ]
Murzullo, having ofce at Don Bosco ]
Provincial House, Nathalal Parekh Marg, ]
Matunga, Mumbai – 400 019. ] … Petitioner
Versus
1) The State of Maharashtra ]
2) Municipal Corporation of Nashik, ]
Rajiv Gandhi Bhavan, Gangapur ]
Road, Nashik. ]
3) Municipal Commissioner of Nashik ]
Municipal Corporation, Rajiv Gandhi ]
Bhavan, Sharanpur Road, Nashik. ]
4) Maharashtra State Road Transport ]
Corporation, Maharashtra Vahatuk ]
Bhavan, Dr. A. Naik Marg, Mumbai ]
Central, Mumbai – 400 008. ] … Respondents
Dr. Virendra Tulzapurkar, Senior Advocate instructed by Mr. Suneet Moholkar for the
Petitioner.
Ms. Shruti Vyas, ‘B’ Panel Counsel for Respondent No.1.
Mr. Murlidhar L. Patil for Respondent Nos.2 and 3.
Mr. Nitesh Bhutekar for Respondent No.4.
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CORAM :AKIL KURESHI AND
S.J. KATHAWALLA, JJ.
JUDGMENT RESERVED ON : 7th AUGUST, 2019
JUDGMENT PRONOUNCED ON : 10th OCTOBER, 2019.
JUDGMENT ( PER S.J. KATHAWALLA, J. ) :-
1. The Petitioner – Bombay Salesian Society is a public trust formed and
registered under the Bombay Public Trusts Act, 1950 vide Registration No.F-
903(Bom) dated 20th October, 1961. The Petitioner is carrying out educational and
other charitable activities. Respondent No.1 is the State of Maharashtra. Respondent
No.2 is the Nashik Municipal Corporation constituted under the Maharashtra
Municipal Corporation Act, 1949, and is designated as the ‘Planning Authority’
under section 2(19) of the Maharashtra Regional and Town Planning Act, 1966
(MRTP Act). Respondent No.3 is the Municipal Commissioner of Nashik Municipal
Corporation. Respondent No.4 – Maharashtra State Road Transport Corporation
(MSRTC) is incorporated under Section 3 of the Road Transport Corporation Act,
1950, and is designated as the ‘Acquiring Authority’ under the provisions of the
MRTP Act.
2. By the above Writ Petition, the Petitioner has sought the following reliefs :
“(a) That the Hon’ble Court be pleased to issue writ of mandamus
directing the Respondent No.1 to notify in the ofcial gazette within
one month that the reservation for bus terminus made on the
Petitioner’s plot admeasuring around 5000 sq. mtrs. bearing FP
No.454 of Town Planning Scheme-II (Plan), Survey No.713 714
of Nashik, as site no.321 under Final Development Plan, Nashik, which
came in force vide TPS-1191/35(A)/CR-88/UD-9 dated 28 thJune, 1993
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of MRTP Act and consequently, reservation made for bus stand on
the said Petitioner’s plot as site no.231 under Revised Development
Plan, Nashik, which has come in force vide TPS-116/CR-140(A) /2016/
UD-9 dated 9th January, 2017 stands lapsed under regulation no.14(2)
of the DCPR.
(b) That this Hon’ble Court be pleased to issue writ of mandamus
directing the Respondent no.2 to grant permissions within 1 month to the
Petitioner to develop the Petitioner’s plot admeasuring around 5000 sq.
mtrs. bearing FP No.454 of Town Planning Scheme-II (Plan), Survey
No.713 714 of Nashik, as per Plans submitted on 16 th March, 2018 in
accordance with law by considering the said plot in Residential zone as
free from any reservation under Revised Development Plan, 2017.”
3. The facts and circumstances giving rise to the present Petition are briefy set
out hereunder :-
3.1 The Petitioner is the owner and in possession of piece of land bearing FP
No.454 of TPS-II (Final), Survey Nos.713 and 714-F.P. No.454-TPS-II, Nashik (trust
property).
3.2 Out of the said trust property, a plot of land admeasuring around 5000 sq. mtrs.
bearing FP No.454 of TPS (Final), Survey No. 713 714 – F.P. No.454-T.P.S.-II,
Nashik (the said plot) was reserved for City Bus Terminus in the Sanctioned
Development Plan of Nashik, 1993 as site No.321. The said plot was reserved for the
benefit of Respondent No.4 – MSRTC (the Acquiring Authority). The said
Development Plan was sanctioned by the Respondent No.1 vide No.TPS 1191/35(A)
CR-88/UD-9 dated 28th June, 1993.
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3.3 The Final Development Plan, 1993 was subsequently modified and sanction
thereto was given by the Respondent No.1 vide TPS 1193/2124/CR-126/95/UD-9
dated 19th February, 1996.
3.4 The Respondent No.2 – Municipal Corporation of Nashik neither acquired the
said plot nor took any steps for acquisition of the said plot within 10 years from the
date on which the Final Development Plan became operative. In view thereof, the
Petitioner served a notice dated 30th September, 2013 as contemplated under Section
127(1) of the MRTP Act (the said Notice) on Respondent No.3 – Municipal
Commissioner of Nashik and the Divisional Controller of Respondent No.4 –
MSRTC.
3.5 The Petitioners have clearly stated in the said Notice that the Reservation
No.321 for City Bus Terminus made in the Nashik Development Plan, sanctioned by
the Urban Development Department vide No.TPS-1191/35(A) CR-88/UD-9 dated
28th June, 1993 and subsequently modified and sanctioned by Respondent No. 1 vide
No.TPS-1193/2124/CR-126/95/UD-9 dated 19th February, 1996 has lapsed since no
acquisition proceedings have been initiated within the stipulated period of 10 years as
per the provisions of the MRTP Act; that the society urgently needs the said reserved
land for the development and expansion of its charitable and educational activities;
that with the serving of the notice, the Petitioners are initiating the process of getting
the said land dereserved and making it available to the Petitioner for the purpose of
urgent development and expansion needs; and that the necessary documents are
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attached to the said notice.
3.6 After the receipt of statutory notice under Section 127(1) of the MRTP Act
from the Petitioner, neither the said plot was acquired nor any steps for acquisition of
the said plot were taken for more than twelve months. Also no notification was
published in the ofcial gazette under Section 127(2) of the MRTP Act, notifying that
the reservation for bus terminus made on the said plot in the Final Development Plan,
1993 as site No.321 had lapsed under Section 127(1) of the MRTP Act.
3.7 The Petitioner ultimately addressed a letter dated 12 th June, 2015 to the
Respondent No.2 – Municipal Corporation of Nashik, wherein after referring to the
notice dated 30th September, 2013 addressed by the Petitioner to the Respondent No.2
under Section 127(1) of the MRTP Act, the Respondent No.2 requested the Petitioner
to take necessary steps to remove the reservation on the said plot from its record as
well as the proposed Development Plan in future.
3.8 In response to the Petitioner’s said letter dated 12 th June, 2015, the Respondent
No.1 addressed a letter dated 21st August, 2015 to the Petitioner. By the said letter, the
Petitioner was asked to remain present with necessary documents before the Planning
Committee of Respondent No.1 on 4th September, 2015 at 3.00 p.m. Accordingly, the
Petitioner remained present before the Planning Committee on 4 th September, 2015
and submitted necessary documents. According to the Petitioner, though the
Respondent No.2 was supposed to intimate the decision of the Planning Committee
on the Petitioner’s request to remove reservation on the said plot from the
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Government records, no such decision was taken or conveyed to the Petitioner by the
Planning Committee of Respondent No.1.
3.9 According to the Petitioner when the matter regarding Petitioner’s request to
de-reserve the said plot in Government records was pending before the Planning
Committee, the Revised Development Plan of Nashik came into force in 2017. The
Respondent No.1 gave its sanction to the said plan vide
TPS-116/CR-140(A)/2016/UD-9 dated 9th January, 2017. In the revised Development
Plan, 2017, the reservation for bus stand on the said plot continued as site No.231.
3.10 According to the Petitioner, the Respondent No.1 framed and notified
Development Control Promotion Regulations (DC PR) for Nashik Municipal
Corporation which form part of the Revised Development Plan, 2017. It is provided in
Regulation 14(2) of DCPR that if the reservation in the earlier sanctioned
Development Plan is lapsed in pursuance of notice under Section 127 of the MRTP
Act, then the corresponding reservation shall stand lapsed in the revised Development
Plan, 2017 to the extent of area covered in the said notice; and the Municipal
Commissioner shall take decision on such matters. According to the Petitioner, by
virtue of Regulation 14(2) of DCPR, the reservation site No.231 on the said plot
made for bus stand under revised Development Plan of 2017 stands lapsed since
corresponding reservation No.321 on the said plot made for city bus terminus under
final Development Plan of 1993 is already lapsed under Section 127(1) of the MRTP
Act.
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3.11 According to the Petitioner, in the year 2017, the Planning Committee of
Respondent No.1 finally took a decision on Petitioner’s request to de-reserve the said
plot in the Government records which was made by the Petitioner vide letter dated 12 th
June, 2015. The Planning Department vide its letter dated 22 nd August, 2017 decided
that as necessary provision is made in DCPR, there is no necessity to change the
records.
3.12 The Petitioner, by its letter dated 20th February, 2018 requested the
Respondent No.1 to notify in the ofcial gazette that reservation of bus terminus on
the said plot site No.321 under Final Development Plan, 1993 and reservation for the
bus stand on the said plot under Revised Development Plan, 2017 as site No. 231
stands lapsed, with efect from 29th September, 2014. The Petitioner has also recorded
in the said letter that in case the Respondent No.1 failed to issue the said notification
within 30 days of receipt of the letter then the Petitioner would be constrained to file
appropriate proceedings in the court of law.
3.13 The Respondent No.1 vide its letter dated 16 th March, 2018 called for the report
in respect of the reservation of the said plot from the Director, Town Planning,
Municipal Commissioner, Nashik and others. The Respondent No.1 has forwarded a
copy of the said letter to the Petitioner for information and record. However, despite
the Petitioner’s request, the Respondent has failed to issue the said notification in the
Ofcial Gazette which they were bound under Section 127(2) of the MRTP Act read
with regulation 14(2) of DCPR.
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3.14 The Petitioner have therefore filed the above Petition seeking reliefs set out in
Paragraph 2 above.
4. The Assistant Director of Town Planning, Nashik has filed her Afdavit-in-
Reply dated 26th June, 2019 on behalf of the Respondent No.1. In the said Afdavit,
the deponent has admitted the fact that as per the Sanctioned Development Plan, the
said plot is shown as part and parcel of final plot No.454 (consisting of S.No.713 and
714) of Sanctioned Town Planning Scheme No.2 Nashik and is reserved as Site
No.321 for “City Bus Terminus”; that the total area of reservation is about 5000
sq.mtrs.; and that the appropriate authority for acquisition and development of the
said reservation was MSRTC. The deponent has also admitted that Regulation
No.14.0(2) of DC PR for Nashik Municipal Corporation provides that if the
reservation in the earlier Sanctioned Development Plan has lapsed in pursuance of
notice under Section 127 (1) of the MRTP Act, then the corresponding reservation
shall stand lapsed in the Revised Development Plan to the extent of area covered in the
said notice and that the Municipal Commissioner shall take decision on such matters.
The deponent has also admitted in her Afdavit that it seems from the letter dated 20 th
February, 2018 (Exhibit “H” of the Writ Petition) relied upon by the Petitioner that a
request was made by the Petitioner to the Principal Secretary, Urban Development
Department, Government of Maharashtra to issue a notification in the ofcial gazette
under Section 127(2) of the said Act notifying that the said reservation of bus
stand/terminus from the previous Development Plan and revised sanctioned
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Development Plan has lapsed. The Government has thereupon vide its letter dated
16th March, 2018 called for a report from the concerned ofce. In her Afdavit filed on
behalf of Respondent No. 1, the deponent has not commented on any of the averments
concerning the Nashik Municipal Corporation and/or MSRTC. The deponent has
submitted that after considering the say of the Nashik Municipal Corporation and / or
MSRTC, the Court may pass suitable orders as may deem fit and proper.
5. Mr. Suresh Devram Nikumbhe has also filed an Afdavit-in-Reply dated 9 th
July, 2019 on behalf of Respondent No.2 – Municipal Corporation of Nashik, stating
that an area of about 5000 sq. mtrs. out of survey Nos.713 and 714, F.P. No.454-TPS II
Nashik was reserved for City Bus Terminus in the sanctioned Development Plan of
1993 as Site No. 321 ; that a purported notice was issued under Section 127 (1) of the
MRTP Act by the Petitioner on 30th September, 2013. However, at that time, since the
appropriate authority for acquisition was MSRTC, the Corporation was not required
to take steps for acquisition ; that the Petitioner has after issuing notice not taken any
steps and the revised draft Development Plan of Nashik dated 21 st May, 2015 was
published in the Maharashtra Government Gazette dated 04-10 June 2015 by which
suggestions/objections were invited from General Public ; that the Petitioner
thereafter by letter dated 12th June, 2015 made a request to remove the S.T.
Reservation from the proposed Development Plan ; that the objections were
considered by the planning committee and it was of the opinion not to change the
reservation ; that the land under reservation is urgently required by the Corporation ;
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that the notice purported to be under Section 127 of the MRTP Act cannot be
construed to be a purchase notice ; that the purported purchase notice sent to the
Divisional Controller, MSRTC, Nashik is not valid, as the same was required to be
sent to the appropriate authority and the appropriate authority in that behalf is the
Managing Director, MSRTC, Mumbai Central ; that the Writ Petition is liable to be
rejected on that ground and also on the ground of delay and laches.
6. Mr. Swapnil Rajendra Pawar has filed an Afdavit-in-Reply on behalf of
Respondent No.4, wherein no objection whatsoever is raised qua the notice dated 30 th
September, 2013 issued under Section 127(1) of the MRTP Act. The main objection
raised in the Afdavit of MSRTC is that there is inordinate delay on the part of the
Applicant in approaching the Court based on the said notice. It is also stated in the
said Afdavit that the planning committee has taken a decision that there is no need to
change the proposed reservation as the Development Control and Promotional
Regulations provides for the same and that the same is apparent from Exhibit “G” of
the Petition. It is admitted in the Afdavit that vide letter dated 16 th March, 2018, the
Urban Development Department asked the Director of Town Planning, State of
Maharashtra and others to file the detailed report in respect of the objection raised by
the Petitioner, however, the deponent is not aware whether report is filed by the
Director of Town Planning.
7. The Petitioner has filed an Afdavit-in-Rejoinder dated 16 th July, 2019, wherein
they have stated that Section 136 of MRTP Act inter-alia provides that the notice
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required to be served under MRTP Act or its rule, regulations on Corporation shall be
deemed to be validly served if the same is served on the principal ofcer of such
Corporation. It is submitted that the Divisional Controller of Respondent No.4, by
virtue of the ofce which he holds signs and verifies the pleadings on behalf of
Respondent No.4 in legal proceedings which is evident from the list of Writ Petitions
filed/defended by the Divisional Controller on behalf of Respondent No.4 in various
High Courts, particulars of which are set out in paragraph 9 of the Afdavit-in-
Rejoinder. It is also averred in the Afdavit-in-Rejoinder that Order 29 Rule 1 of Code
of Civil Procedure inter-alia provides that in a suit by or against Corporation,
pleadings on behalf of Corporation can be signed and verified by its principal ofcer
and it is clear from the aforesaid that the Divisional Controller is the principal ofcer
of Respondent No.4. It is therefore submitted that the notice is deemed to be duly
served on Respondent no.4 under Section 127 (1) of the MRTP Act. It is also pointed
out in the Afdavit in Rejoinder that the Respondent No.4 – MSRTC has not raised
any dispute regarding the validity of the purchase notice served on them by the
Petitioner and the objection sought to be raised in regard thereto by the Respondent
Nos.2 and 3 is without any substance and is liable to be rejected.
8. Dr. Virendra Tulzapurkar, learned Senior Advocate appearing for the Petitioner
took us through the facts in the Petition which are already set out in Paragraph 3
above. He pointed out that the development plan under which the said plot belonging
to the Petitioner was reserved as site No. 321 for City Bus Terminus was sanctioned on
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28th June, 1993 and was subsequently modified and sanctioned on 19 th February, 1996.
Since the said plot was not acquired within 10 years from the date on which the final
development plan came into force, the Petitioner served statutory notice dated 30 th
September, 2013 under Section 127 (1) of the MRTP Act to the Municipal
Corporation, Nashik-Respondent No.2 and also to MSRTC-Respondent No.4. The
Respondent No.2 admittedly failed to acquire the said plot within the statutory period
of 12 months (which period prior to the amendment of 2009 was 6 months) In the
circumstances, as provided in Section 127 of the MRTP Act, the reservation of the
said plot deemed to have lapsed and the land stood released from reservation and
became available to the owners / Petitioners for the purpose of development.
However, Respondent No. 1 failed to comply with the mandate provided in Sub
Section (2) of Section 127 of the MRTP Act i.e. issuing a notification in the ofcial
gazette notifying the lapsing of reservation of the said plot.
9. Mr.Tulzapurkar submitted that the Petitioner was therefore constrained to
address a letter dated 12th June, 2015 to Respondent No.2 reiterating that the
reservation for the bus terminus on the said plot made in Development Plan, 1993 as
site No.321 has lapsed and requested the Respondent No.2 to take necessary steps to
remove reservation on the said plot from its record as well as from the proposed
Development Plan in future. In response to the Petitioner’s said letter, the
Respondent No.1 addressed a letter dated 21 st August, 2015 and asked the Petitioner to
remain present with necessary documents before the Planning Committee of
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Respondent No.1 on 4th September, 2015 at 3.00 p.m. Accordingly, the Petitioner
remained present before the Planning Committee on 4 th September, 2015 and
submitted necessary documents. However, for almost two years, no such decision was
taken by the Planning Committee of Respondent No.1 and when the matter regarding
Petitioner’s request to de-reserve the said plot in Government records was pending
before the Planning Committee, the Revised Development Plan of Nashik came into
force in 2017. The Respondent No.1 gave its sanction to the said plan vide
TPS-116/CR-140(A)/2016/UD-9 dated 9th January, 2017 and the reservation for the
bus stand on the said plot continued as site No.231. Dr.Tulzapurkar submitted that
since reservation No.321 on the said plot made for city bus terminus under final
Development Plan of 1993 already stood lapsed under Section 127(1) of the MRTP
Act, the reservation site No.231 on the said plot made for bus stand under revised
Development Plan of 2017 stood lapsed. The same also stood lapsed by virtue of
Regulation 14 (2) to the DC PR.
10. According to Dr. Tulzapurkar, the Petitioner by its letter dated 20 th February,
2018 requested the Respondent No.1 to notify in the Ofcial Gazette that reservation
of bus terminus on the said plot having site No.321 under final Development Plan,
1993 and reservation for bus stand on the said plot as site No.231 under revised
Development Plan, 2017 stands lapsed with efect from 29 th September, 2014, but the
Respondent No.1 failed to issue a notification to that efect. Dr. Tulzapurkar therefore
submitted that the above Writ Petition ought to be allowed as prayed. In support of his
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submissions, Dr. Tulzapurkar relied on the decisions of the Supreme Court in the case
of SectionPrafulla C. Dave and Ors. v. Municipal Commissioner and Ors. 1, SectionBhavnagar
University v. Palitana Sugar Mill (P) Limited Ors. 2 and Girnar Traders V/s. State
of Maharashtra and Ors.3.
11. The Learned Advocate appearing for the State of Maharashtra/Respondent
No.1 referred to the Afdavit dated 26th June, 2019 filed by the Assistant Director of
Town Planning, Nashik and submitted that the Writ Petition specifically relates to
Municipal Corporation of Nashik / Respondent Nos.2 and MSRTC/ Respondent
No.4. This Court may therefore pass suitable orders considering the say of
Respondent Nos. 2 to 4 and as may deem fit and proper.
12. The Learned Advocate appearing for Respondent No.2-Municipal Corporation
of Nashik submitted that a company by the name of ‘Nashik Mahanagar Parivahan
Mahamandal Ltd.’ is incorporated under the SectionCompanies Act for providing bus
services in the City, pursuant to the resolution made by the general body of the
Corporation on 19th September, 2018. He submitted that therefore, the Corporation
requires the said land for providing bus services in diferent areas within its limits. The
Learned Advocate appearing for the Corporation also submitted that the notice served
on the Divisional Controller, MSRTC, Nashik is not valid since the same was required
to be sent to the appropriate authority and the appropriate authority in that behalf is
1 (2015) 11 Supreme Court Cases 90
2 (2003) 2 Supreme Court Cases 111
3 (2007) 7 Supreme Court Cases 555
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the Managing Director, MSRTC, Mumbai Central. He submitted that the Divisional
Controller is not the appropriate authority and on this ground the Writ Petition be
rejected. The learned Advocate for the Corporation relied on Section 15 of the
MSRTC Act of 1950, which provides that the Managing Director of the MSRTC shall
be the executive head of the Corporation and all other ofcers and employees of the
Corporation shall be subordinate to him. He also relied on the decision of the Division
Bench of this Court in the case of SectionC.V. Shah A.V. Bhat v. State of Maharashtra 4 and
the decision in case of Shrikant s/o Uttamrao Bhutekar and others v. State of
Maharashtra and others 5.
13. The Learned Advocate appearing for Respondent No.4 submitted that though
notice under Section 127(1) of the MRTP Act was served on MSRTC on 30 th
September, 2013, the Writ Petition is filed only in April 2018. He submitted that since
there is inordinate delay in approaching this Court, the Petitioners are guilty of delay
and latches and therefore, not entitled to any reliefs.
14. In rejoinder, Dr. Tulzapurkar relied on Afdavit-in-Rejoinder dated 16 th July,
2019 filed by the Petitioner and pointed out that it is not the case of MSRTC that the
notice served on them is not valid. However, it is the Municipal Corporation of
Nashik who has alleged that the notice under Section 127(1) of MRTP Act is not valid
since the same was served on the Divisional Controller of MSRTC and not the
Managing Director who is not the appropriate authority. Dr. Tulzapurkar has given
4 2006 (3) Bom.C.R. 216
5 (2009) 2 Mah LJ 673 : (2008) 110 (9) Bom LR 3360 : (2009) 1 AIR Bom R 561
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particulars of several Writ Petitions filed by the Divisional Controller of MSRTC as a
principal ofcer of MSRTC and pointed out that the submissions raised by the
Advocate for the Municipal Corporation of Nashik is baseless and untenable. Dr.
Tulzapurkar also submitted that in any event since the Divisional Controller, MSRTC,
Nashik on behalf of Respondent No.4 was responsible for and concerned with the
acquisition of the Petitioner’s land which was reserved as site No.321 under
Development Plan, 1993, the Divisional Controller, Nashik, on behalf of Respondent
No.4 was responsible for and concerned with the acquisition of the Petitioner’s land
which was reserved as site No.321 under Development Plan, 1993. Dr.Tulzapurkar
submitted that in view of the chronology of events set out in the Petition and pointed
out by him in his oral submissions, there is no delay whatsoever on the part of the
Petitioner in approaching this Court.
15. We have perused the above Writ Petition as well as the Afdavits filed by
the parties. We have considered the facts of the present case, the submissions made
by the learned Advocates for the parties and the case law relied upon by them.
16. Chapter VII of the MRTP Act deals with “Land Acquisition”. Section
125 of the MRTP Act deals with “Compulsory acquisition of land needed for purpose
of regional plan, development plan or town planning etc.” Section 126 of the MRTP
Act deals with “Acquisition of land required for public purposes specified in plans.”
Section 127 of the MRTP Act pertains to “Lapsing of reservations”. Section 127 of
the MRTP Act is relevant for deciding the issues raised in the present Writ Petition
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and is therefore reproduced hereunder :
“127. Lapsing of reservations
[(1) If any land reserved, allotted or designated for any purpose
specifed in any plan under this Act is not acquired by agreement
within ten years from the date on which a fnal Regional plan,
or fnal Development Plan comes into force [or if a declaration
under sub-section (2) or (4) of section 126 is not published in the
Ofcial Gazette within such period, the owner or any person
interested in the land may serve notice, alongwith the
documents showing his title or interest in the said land, on the
Planning Authority, the Development Authority or, as the case
may be, the Appropriate Authority to that efectt and if within
twelve months] from the date of the service of such notice, the
land is not acquired or no steps as aforesaid are commenced for
its acquisition, the reservation, allotment or designation shall be
deemed to have lapsed, and thereupon, the land shall be deemed
to be released from such reservation, allotment or designation
and shall become available to the owner for the purpose of
development as otherwise, permissible in the case of adjacent
land under the relevant plan.
[(2) On lapsing of reservation, allocation or designation of any
land under sub-section (1), the Government shall notify the
same, by an order published in the Ofcial Gazette.]”
Section 127 of the MRTP Act therefore, sets out the circumstances in which the land
reserved in the Regional or Development Plan would lapse. It prescribes a period of
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ten years within which acquisition of the land reserved, allotted or designated, has to
be completed by agreement from the date on which a final regional plan or a final
development plan comes into force, or the proceedings for acquisition of such land
under the MRTP Act or under the SectionLand Acquisition Act are commenced. If the said
procedure prescribed is not completed within a period of ten years i.e. no steps are
taken as prescribed, the owner is entitled to issue a notice on the planning authority,
development authority or appropriate authority informing them that they have not
taken any steps within ten years and if no steps are taken within a period of twelve
months from the date of receipt of the such notice by the concerned authorities, the
reservation allotment or designation shall deemed to have lapsed and consequently
the land shall be deemed to be released from the reservation, allotment or designation
and shall become available to the owner for the purpose of development. Upon lapsing
of reservation, allocation or designation of any land, under Sub Section (1) of Section
127 of the MRTP Act, the Government shall as provided in sub-Section (2) of Section
127, notify the said lapsing by an order published in the ofcial gazette.
17. Section 38 of the MRTP Act deals with the revision of a final
development plan, already in operation. Such revision is contemplated on the expiry
of 20 years from the date of coming into operation of a development plan.
18. In the case of Girnar Traders (supra), it is explained that the underlying
principle envisaged in Section 127 of the MRTP Act is either to utilize the land for the
purpose it is reserved in the plan in a given time or let the owner utilize the land for
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the purpose it is permissible under the town planning scheme. However, it is trite law
that Section 127 of the MRTP Act or any other provision of the said Act, does not
provide for automatic lapsing of acquisition, reservation and allotment or designation
of land included in development plan on expiry of 10 years. In case of Prafulla C.
Dave and Ors. (supra), the Supreme Court relying on its earlier decision in the case of
Bhavnagar University (supra) has held that Section 127 of the Act or any other
provisions of the Act, does not provide for automatic lapsing of the acquisition,
reservation or designation of the land included in any development plan on the expiry
of ten years. In fact, upon expiry of the said period of ten years, the land owner or the
person interested is mandated by the Statute to take certain positive steps i.e. to
issue / serve a notice and there must occur a corresponding failure on the part of the
authority to take requisite steps as demanded therein in order to bring into efect the
consequences contemplated by Section 127. It is further held that if the land owner or
the person interested remains silent and in the meantime a revised plan under Section
38 of the Act comes into efect, obviously, the period of 10 years under Section 127 of
MRTP Act has to get a fresh lease of life of another ten years. This position is clearly
explained in paragraphs 21 and 22 of the said decision and the same are reproduced
hereunder :
“21. ……. Section 127 of the MRTP Act or any other provision
of the said Act does not provide for automatic lapsing of the
acquisition, reservation or designation of the land included in::: Uploaded on – 10/10/2019 11/10/2019 02:30:11 :::
Nitin 20 / 30 WP-5347-2018-F.docany development plan on the expiry of ten years. On the
contrary, upon expiry of the said period of ten years, the
landowner or the person interested is mandated by the Statute to
take certain positive steps i.e. to issue / serve a notice and there
must occur a corresponding failure on the part of the authority to
take requisite steps as demanded therein in order to bring into
efect the consequences contemplated by Section 127. What
would happen in a situation where the landowner or the person
interested remains silent and in the meantime a revised plan
under Section 38 comes into efect is not very difcult to fathom.
Obviously, the period of ten years under Section 127 has to get a
fresh lease of life of another ten years. To deny such a result
would amount to putting a halt on the operation of Section 38
and rendering the entire of the provisions with regard to
preparation and publication of the revised plan otiose and
nugatory. To hold that inactivity on the part of the authority i.e.
failure to acquire the land for ten years would automatically
have the efect of the reservation, etc. lapsing would be contrary
to the clearly evident legislative intent. In this regard, it cannot
be overlooked that under Section 38 a revised plan is to be
prepared on the expiry of a period of 20 years from the date of
coming into force of the approved plan under Section 31 whereas
Section 127 contemplates a period of 10 years with efect from the
same date for the consequences provided for therein to take efect.
The Statute, therefore, contemplates the continuance of a
reservation made for a public purpose in a fnal development
plan beyond a period of ten years. Such continuance would get::: Uploaded on – 10/10/2019 11/10/2019 02:30:11 :::
Nitin 21 / 30 WP-5347-2018-F.docinterdicted only upon happening of the events contemplated by
Section 127 i.e. giving / service of notice by the landowner to the
authority to acquire the land and the failure of the authority to
so act. It is, therefore, clear that the lapsing of the reservation,
allotment or designation under Section 127 can happen only on
the happening of the contingencies mentioned in the said section.
If the landowner or the person interested himself remains
inactive, the provisions of the Act dealing with preparation of
revised plan under Section 38 will have full play. Action on the
part of the landowner or the person interested as required under
Section 127 must be anterior in point of time to the preparation
of the revised plan. Delayed action on the part of the landowner,
that is, after the revised plan has been fnalised and published
will not invalidate the reservation, allotment or designation that
may have been made or continued in the revised plan. This
according to us, would be the correct position in law which has, in
fact, been clarifed in SectionMuncipal Corpn. Of Greater Bombay v.
Hakimwadi Tenants’s Assn. 6 in the following terms : (SCC p.
62, para 10)
“10…… If there is no such notice by the owner or any person,
there is no question of the reservation, allotment or designation
of the land under a development plan of having lapsed. It a
fortiori follows that in the absence of a valid notice under Section
127, there is no question of the land becoming available to the
owner for the purpose of development or otherwise.”
22. In fact the views expressed in Bhavnagar University in para
34 to the same efect : (SCC p. 123)
6 1988 Supp SCC 55
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“34….. The relevant provisions of the Act are absolutely clear,
unambiguous and implicit. A plain meaning of the said
provisions, in our considered view, would lead to only conclusion,
namely, that in the event a notice is issued by the owner of the
land or other person interested therein asking the authority to
acquire the land upon expiry of the period specifed therein viz.
ten years from the date of issuance of fnal development plan and
in the event pursuant to or in furtherance thereof no action for
acquisition thereof is taken, the designation shall lapse.”
19. In the backdrop of the aforestated law laid down by the Supreme Court,
let us consider its applicability to the facts of the present case. Admittedly, the
Petitioner is the owner and in possession of the said plot. The said plot admeasuring
5000 sq. mtrs. was reserved for city bus terminus in the sanctioned development plan
of Nashik, 1993 as site No.321 The said plot was reserved for the benefit of
Respondent No.4 – MSRTC (the Acquiring Authority). The said Development Plan
was sanctioned by the Respondent No.1 vide No.TPS 1191/35(A) CR-88/UD-9 dated
28th June, 1993. The Final Development Plan, 1993 was subsequently modified and
sanction thereto was given by the Respondent No.1 vide TPS 1193/2124/CR-126/95/
UD-9 dated 19th February, 1996. The Respondent No.2 – Municipal Corporation of
Nashik neither acquired the said plot nor took any steps for acquisition of the said plot
within 10 years from the date on which the Final Development Plan became operative.
In view thereof, the Petitioner served a notice dated 30 th September, 2013 as
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contemplated under Section 127(1) of the MRTP Act on Respondent No.3 –
Municipal Commissioner of Nashik and the Divisional Controller of Respondent No.4
– MSRTC.
20. The Petitioners have clearly stated in the said Notice that the
Reservation No.321 for City Bus Terminus made in the Nashik Development Plan,
sanctioned by the Urban Development Department vide No.TPS-1191/35(A) CR-88/
UD-9 dated 28th June, 1993 and subsequently modified and sanctioned by Respondent
No. 1 vide No.TPS-1193/2124/CR-126/95/UD-9 dated 19th February, 1996 has lapsed
since no acquisition proceedings have been initiated within the stipulated period of 10
years as per the provisions of the MRTP Act; that the society urgently needs the said
reserved land for the development and expansion of its charitable and educational
activities; that with the serving of the notice, the Petitioners are initiating the process
of getting the said land dereserved and making it available to the Petitioner for the
purpose of urgent development and expansion needs; and that the necessary
documents are attached to the said notice. Since the Respondents failed to acquire the
said land or to commence any steps for its acquisition within a period of 12 months or
from the date of service/receipt of the said notice dated 30 th September, 2013, the said
reservation in respect of the said plot lapsed and the land stood released from such
reservation and became available to the owner for the purpose of development as
provided in Section 127 of the MRTP Act. Respondent No. 1 was thereupon bound to
notify the lapsing of the said reservation by an order published in the ofcial gazette.
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21. No notification was published in the ofcial gazette under Section 127(2)
of the MRTP Act, notifying that the reservation for bus terminus made on the said
plot in the Final Development Plan, 1993 as site No.321 had lapsed under Section
127(1) of the MRTP Act.
22. Since the Respondent No.1 failed to follow the mandate prescribed in
Sub Clause 2 of Section 127 of the MRTP Act, the Petitioner addressed a letter dated
12th June, 2015 to the Respondent No.2 – Municipal Corporation of Nashik, whereby
after referring to the notice dated 30th September, 2013 addressed by the Petitioner to
the Respondent No.2 under Section 127(1) of the MRTP Act, the Respondent No.2
requested the Petitioner to take necessary steps to remove the reservation on the said
plot from its record as well as the proposed Development Plan in future.
23. The learned Advocate in his oral submission made on behalf of Nashik
Municipal Corporation/Respondent No. 2 has stated that the revised draft
Development Plan of Nashik dated 21st May, 2015 was published in the Maharashtra
Government Gazette dated 04-10 June 2015 by which suggestions/objections were
invited from General Public and the Petitioner thereafter by letter dated 12 th June,
2015 made a request to remove the S.T. Reservation from the proposed Development
Plan and that the objections were considered by the planning committee and it was of
the opinion not to change the reservation since the land under reservation is urgently
required by the Corporation. This submission lends no assistance to the Respondent
No.2 since the said notice under Section 127(1) was issued by the Petitioner to the
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Respondents on 30th September, 2013 i.e. much prior to the publication of the draft
revised development plan of Nashik dated 21st May, 2015 and further since the
Respondents failed to act on the said notice for a period of one year/twelve months
thereafter, the reservation lapsed on and from 29 th September, 2014 and the land stood
released from reservation and became available to the Petitioner for development in
the manner set out in Section 127 of the MRTP Act. In fact, Respondent No. 1 has in
its Afdavit dated 26th June, 2019 reproduced Regulation No. 14.0 (2) of the
sanctioned Development Control and Promotion Regulations for Nashik Municipal
Corporation, which form part of the Revised Development Plan, 2017. The same reads
thus :
“14.0(2) – Reservations lapsed under 127 of the Act. – If the
reservation in the earlier Sanctioned Development Plan is lapsed
in pursuance of notice under Section 127 of the Maharashtra
Regional and Town Planning Act, 1966, then the corresponding
reservation shall stand lapsed in this Revised Development Plan
to the extent of area covered in the said notice. The Municipal
Commissioner shall take decision on such matters.”
Therefore, in our view after the reservation of the bus terminus made on the said plot
in the Final Development Plan, 1993 as site No. 321, having lapsed on and from 29 th
September, 2014, the Respondents cannot again reserve the said plot in the draft
revised Development Plan of Nashik dated 21st May, 2015. The Respondents who
have failed to comply with the mandate provided in Sub Clause (2) of Section 127 of
the MRTP Act, cannot be allowed to take advantage of its own wrong and blame the
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Petitioner for the delay when in fact the delay lies squarely at the doors of the
Respondents.
24. We are therefore left to answer the main contention of the Respondent
No. 3 Corporation that the purchase notice dated 30 th September, 2013 is not a valid
notice since the same is addressed to the Divisional Controller of Respondent No.4 –
MSRTC, Nashik. As noted earlier, MSRTC which is the acquiring authority has at no
stage in the past or even in their Afdavit or in their submissions before us contended
that the notice served on its Divisional Controller under Section 127 of the MRTP Act
is not valid or that the notice ought not to have been served on Divisional Controller of
Respondent No.4 – MSRTC but ought to have been served on the Managing Director
of MSRTC. The only submission made by the MSRTC before this Court is that the
Petition be dismissed since the Petitioner has approached the Court much after the
service of notice dated 30th September, 2013 on MSRTC. The Planning Authority /
Nashik Municipal Corporation has no grievance qua the notice served on them under
Section 127 of the MRTP Act, but have raised objection on the ground that the notice
ought not to have been served on the Divisional Controller of the Acquiring
Authority / MSRTC, who interestingly have not raised any objection qua the notice
served on them. In fact, even in the decision in the case of C.V.Shah A.V. Bhat
(supra) relied upon by the Municipal Corporation Nashik, the Division Bench of this
Court in paragraph 24 of its Judgment has clearly held as under :
“24. In the reply afdavits fled by the Pune Municipal
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Nitin 27 / 30 WP-5347-2018-F.docCorporation, no objection has been raised about the legality and
validity of the purchase notice. As a matter of fact, the Pune
Municipal Corporation considered the aforesaid notices as legal
and valid notices under Section 127 of the MRTP Act and
rejected them on the ground that the said notices do not require to
be acted upon as the process for acquisition had already begun
much before the said notices were served”.
25. In any event, as pointed out by Dr.Tulzapurkar the Petitioner has in its
Afdavit in Rejoinder provided particulars of several Writ Petitions filed by the
Divisional Controller of MSRTC, in his capacity as a principal ofcer of MSRTC.
Section 136 of the MRTP Act pertains to service of notice. Sub – clause (a) of Clause
(1) of Section 136 is reproduced hereunder :
“136. Service of notice, etc.
(1) All documents including notices and orders required by this
Act or any rule or regulation made thereunder to be served upon
any person shall save as otherwise provided in this Act or rule or
regulation, be deemed to be duly served –
(a) Where the document is to be served on a Government
department, railway, local authority, statutory authority,
company, corporation, society or other body, if the document is
addressed to the head of the Government department, General
Manager of the Railway, Secretary or Principal Ofcer of the
local authority, company, corporation, society or any other body
at its authority, principal, branch, local or registered ofce, as the::: Uploaded on – 10/10/2019 11/10/2019 02:30:11 :::
Nitin 28 / 30 WP-5347-2018-F.doccase may be, and is either –
(i) sent by registered post to such ofce t or
(ii) delivered at such ofce.”
The MSRTC has not disputed the contents of the said Afdavit in Rejoinder. Even
during the oral arguments, it is not submitted by MSRTC that its Divisional
Controller is not its Principal Ofcer. The decision of this Court in the case of
Shrikant S/o. Uttamrao Bhutekar and Others (supra) lends no assistance to the
submission of Respondent No. 3 Corporation qua the service of the notice under
Section 127 of the MRTP Act not being valid, since in that case the Nagar Parishad
had in its Afdavit specifically averred that the notice had not been received by them,
and the said avernment was not controverted by the Petitioners by filing any
Rejoinder.
26. We are therefore of the considered view that the notice issued by the
Petitioner to MSRTC under Section 127 of the MRTP Act, is valid and the
submissions made by the Corporation in that regard are rejected.
27. Before we part with the order, we would like to record that though not
contended / submitted by any of the Respondents, we inquired from Dr.Tulzapurkar
whether it is mandatory for the owner of the land or any person interested therein, to
call upon the government to acquire the land reserved in the notice issued under
Section 127 (1) of the MRTP Act. This question was asked since in paragraph 34 of
the decision of the Supreme Court in Bhavnagar University (supra), we noted the
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statement that in the event notice is issued by the owner or other person interested
therein, asking the authority to acquire the land upon expiry of the period specified
therein viz. ten years from the date of issuance of final development plan and in the
event pursuant to or in furtherance thereof no action for acquisition thereof is taken,
the designation shall lapse. Paragraph 34 of the said decision is reproduced
hereunder :
“34. The relevant provisions of the Act are absolutely clear,
unambiguous and implicit. A plain meaning of the said
provisions, in our considered view, would lead to only one
conclusion, namely, that in the event a notice is issued by the
owner of the land or other person interested therein asking the
authority to acquire the land upon expiry of the period specifed
therein viz. ten years from the date of issuance of fnal
development plan and in the event pursuant to or in furtherance
thereof no action for acquisition thereof is taken, the designation
shall lapse.”
28. Dr. Tulzapurkar relied on the decision of the Supreme Court in the case
of Girnar Traders (supra) pointing out that in paragraph 31 of the majority decision, it
is recorded that “…….The six-month period shall commence from the date the owner or
any person interested in the land serves a notice on the planning authority, development
authority or appropriate authority expressing his intent claiming dereservation of the
land……”. Dr.Tulzapurkar has submitted that therefore the said statements of the
Supreme Court are general / passing statements and is not the law laid down /
proclaimed by the Supreme Court. Dr.Tulzapurkar has further submitted that in fact
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in the said decision, the Supreme Court has clearly recorded that there is no
prescribed format qua the contents of the notice set out in Section 127 of the Act.
Dr.Tulzapurkar has relied on the decision of the Division Bench of this Court in case
of M/s.Jaika Vanijya Limited Anr. v. The State of Maharashtra Ors. 7, wherein it
is expressly recorded that the owner is not required by Section 127 of the MRTP Act
to call upon the authority to take steps to acquire the land within stipulated period and
in fact the authority on which the notice is served, is aware of the obligations cast upon
it by the said Section.
29. For all the above reasons, we hold as follows :
i. The notice issued by the Petitioner under Section 127 of the MRTP Act, dated
30th September, 2013 is a valid notice.
ii. Upon expiry of the period of twelve months from the date of issuance of notice
dated 30th September, 2013, the reservation in respect of the plot of land belonging to
the Petitioner, has lapsed.
iii. Action on the part of the Respondents to show the said plot of the Petitioner as
reserved in its Revised Development Plan, Nashik, which has come in force vide TPS-
116/CR-140(A) /2016/UD-9 dated 9th January, 2017 / final development plan, is void
and illegal and also stands lapsed.
30. The Writ Petition is therefore disposed of in terms of prayer Clause (a).
( S.J. KATHAWALLA, J. ) ( AKIL KURESHI, J. )7 2014 (1) ALL MR 136
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