Bombay High Court
Arvind Balaji Walvekar vs The State Of Gov. Of Maharashtra Through ... on 29 July, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
21-ASWP-5180-2022 (COPY).DOCX
PALLAVI
MAHENDRA
WARGAONKAR
Digitally signed by
PALLAVI MAHENDRA
WARGAONKAR
Date: 2024.08.01
10:55:57 +0530 Pallavi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5180 OF 2022
Arvind Balaji Walvekar ...Petitioner
Versus
The State of Maharashtra, Thr. Secretary ...Respondents
Ministry of Urban Development Dept. and Ors.
Mr GS Godbole, Senior Advocate, i/b. SR Ronghe, for the
Petitioner.
Mrs Rupali Shinde, AGP, for the Respondent - State.
Mr Abhijit Kulkarni with Ms. Sweta Shah, Mr. Gaurav Sahane, Mr.
Krishna Jaybhay, for Respondent No.3 (PMC).
CORAM M.S. Sonak &
Kamal Khata, JJ.
DATED: 29th July 2024 PC:-
1. Heard learned counsel for the parties.
2. The development plan for Pune was initially finalised on 8 July 1966, reserving the Petitioner's property for the public purpose of the Primary School. After following the necessary procedures, this plan was revised effective 5 January 1987, maintaining the same reservation.Page 1 of 5
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3. On 28th March 2013, a notice was issued under Section 26(1) of the Maharashtra Regional and Town Planning Act, 1966 (for short, "MRTP Act") proposing to revise the above plan. However, before the revision could be finalised, the Petitioners issued a notice on 23rd May 2015, which the Planning Authority received on 26th May 2015 under Section 127(1) of the MRTP Act urging the purchase of the said property.
4. Under the amendment to the MRTP Act, the 12-month period prescribed in Section 127(1) for taking steps to purchase was enhanced to 24 months, effective from 29 August 2015. There is no dispute that this 24-month notice period under the amendment would govern the present case.
5. The revisions to the development plan were finalised on 5 January 2017, before the expiry of the 24-month notice period, which was 22 May 2017.
6. The Petitioner's case is that notice dated 23rd May 2015 issued by the Petitioner neither lapses nor is rendered ineffective on account of the revision of the development plan effective from 5th January 2017. The Petitioner contends that on the expiry of 24 months, i.e. on 22 May 2017, the reservation lapses because, in the meantime, the Planning Authority has failed to take steps to acquire the said property as contemplated under the scheme of Sections 126 and 127 of the MRTP Act.
7. At least prima facie, the petitioner's contentions find support in the decisions of the Coordinate Division Bench in the case of Santu Sukhdeo Jaibhave & Ors. Vs. Nashik Municipal Corporation Page 2 of 5 29th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 09/08/2024 15:42:03 ::: 21-ASWP-5180-2022 (COPY).DOCX & Ors.1 and Sadashiv Tryambak Rejebahadur & Ors. Vs. State of Maharashtra & Ors.2 In similar facts, these decisions have held that the reservation lapses if no steps are taken by the planning authority to acquire the property.
8. However, Mr Kulkarni, learned counsel for the Pune Municipal Corporation (PMC), which is the Planning Authority, relied upon the decisions of yet another Coordinate Bench in the case of Salim Nizam Sanadi & Ors. Vs Municipal Corporation, Sangli, Miraj and Kupwad City & Ors.3 and Shri. Amuksidha Shrikant Majge and Anr. vs. Commissioner, Sangli, Miraj and Kupwad Municipal Corporation, Sangli and Ors .4 to contend that once the revisions in the development plan are finalised, subsequent reservation of land by the revised Development Plan would be the fresh starting point for the period prescribed under Section 127 of the MRTP Act. This means that as long as the period of 10 years from the finalisation of the revised Development Plan has not expired, there was no question of lapsing the reservation provided in the finalised revised development plan.
9. Again, prima facie, the decisions in Salim Nizam Sanadi (supra) and Shri. Amuksidha Shrikant Majge (supra) support Mr. Kulkarni's submission.
10. In the case of Salim Nizam Sanadi (supra) and Shri. Amuksidha Shrikant Majge (supra) considered the decision of the Division Bench of this Court in Prafulla C. Dave & Ors. vs 1 2022 SCC OnLine Bom. 5273 2 2023 SCC OnLine Bom. 999 3 2019(2) All MR 630 4 2018 SCC OnLine Bom. 2844 Page 3 of 5 29th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 09/08/2024 15:42:03 ::: 21-ASWP-5180-2022 (COPY).DOCX Municipal Commissioner, Pune and Ors.5 However, the decisions in Santu Sukhdeo Jaibhave (supra) and Sadashiv Tryambak Rejebahadur (supra) considered the decision of the Hon'ble Supreme Court in Prafulla C. Dave vs Municipal Corporation of Pune6 affirming the decision of the Division Bench of this Court.
11. Mr Godbole argued that the facts in Prafulla Dave were entirely different because, in the said case, notice under Section 127 was served after the revised Development Plan had been finalised. He submitted that in the present case, the notice under section 127 was admittedly served before the finalisation of the revised plan. Therefore, the subsequent finalisation does not affect the notice.
12. The two sets of decisions that at least prima facie take conflicting views do not discuss the distinction now sought to be made by Mr Godbole. In almost similar material facts, the two sets of decisions of Co-equal Benches reach diametrically opposite conclusions. Based upon the first set, this petition may have to be allowed. But if the second set of decisions are to be followed, this petition would have to be dismissed.
13. Similarly, none of the judgments have had the benefit of considering some of the observations made by the Full Bench of this Court in Vishwas Bajirao Patil Vs. State of Maharashtra & Ors.7 The Full Bench, in the context of deciding whether the amendment to Section 127, which entered force on 29th August 2015 and enhanced the time limit from 12 months to 24 months, has observed that no 5 2008 (3) Mh.L.J. 120 6 2007(6) ALL MR 207 7 2019 SCC OnLine Bom. 1770 Page 4 of 5 29th July 2024 ::: Uploaded on - 01/08/2024 ::: Downloaded on - 09/08/2024 15:42:03 ::: 21-ASWP-5180-2022 (COPY).DOCX right is vested in a person having an interest in the land by merely serving notice as contemplated by Section 127 of MRTP Act. The Full Bench observed that the right would have vested in the landowner upon the expiry of a period of one year from the date of issue of such notice had the MRTP Act not been amended in the meantime.
14. Given the prima facie conflict between the two sets of judgments delivered by the Coordinate Co-equal Benches and the fact that certain observations made by the Full Bench in Vishwas Bajirao Patil (supra) were not considered, We think that this matter could be more advantageously heard by a Bench of more than two Judges. This conflict, according to us, could be best resolved by resorting to the provisions of Rule 8 of Chapter I of the Bombay High Court, Appellate Side Rules, 1960 (for short, "the said Rules").
15. Accordingly, we direct the Registry to place the matter before the Hon'ble Chief Justice, given the provisions of Chapter I Rule 8 of the said Rules.
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