- 1 - 260.95 rng IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.260 OF 1995 Mohan Telaram Kukreja .. Petitioner vs 1.The State of Maharashtra & ors.Respondents Mr.D.D.Madon,Sr.Advocatel with Mr.Gaurav Joshi, Mr.Chirag Mody,Mr.Gaurav Parkar i.b DSKLegal & Co for Petitioner Mr.G.W.Mattos AGP for Respondent no.1 Ms.Geeta Joglekar for Respondent no.2 BMC CORAM: D.K.DESHMUKH & N.D.DESHPANDE, JJ DATED: December 14, 2010 P.C.(Per D.K.Deshmukh, J) 1. By this petition, the petitioner challenges the order dated 10th February 1994 passed by the Government of Maharashtra. The relevant facts are as under: - 2 - 260.95 2. The petitioner had agreed to purchase land in C.T.S.No.128-B Survey NO.357 (pt) of village Chembur from its owner Baliram Govind Gaikar. Sub-plot Nos. 8 and 10 to which the present petition relates was reserved for public housing in the Development Plan. The predecessor-in-title of the petitioner issued a notice dated 9th March 1970 under section 49 of the Maharashtra Regional and Town Planning Act, 1966 (Hereinafter referred to as Town Planning Act) for purchase of the land which was under reservation for public housing. The State Government confirmed that notice by communication dated 15th September, 1970. On 13th September, 1971 the Corporation forwarded a proposal to the Commissioner,Bombay Division for acquisition of the said land. The predecessor-in-title of the petitioner who was under an - 3 - 260.95 impression that the land is under acquisition addressed a letter dated 19th February 1980 submitting the building plans and requesting release the land from reservation for public housing. It appears that pursuant to that letter, a resolution was passed on 27th August, 1970 by the Improvement Committee of the Corporation agreeing to permit the owner to develop the land subject to certain terms and conditions. One of the condition was 10% accommodation shall be reserved for municipal nominees at the rate to be decided by the City Engineer of the Municipal Corporation. An IOD was granted by the Corporation on 25th August, 1980 imposing the same conditions. The petitioner felt aggrieved by that therefore filed an appeal under section 47 of the Town Planning Act before the State Government. The State Government rejected that appeal by an order - 4 - 260.95 dated 10th February, 1994. The Petitioner in this petition challenges the condition imposed in I.O.D. and the order of the State Government. 3. The first submission of the learned counsel appearing for the petitioner is that order of the State Government suffers from non-application of mind to the relevant facts because, the State Government has proceeded on an assumption that acquisition proceedings for the land were initiated in the year 1968 and therefore the purchase notice given in the year 1970 itself was invalid. It is submitted that there was no acquisition proceedings initiated in the year 1968 and acquisition proceedings was for the first time initiated on 13th September, 1971 when the Corporation addressed a letter to the Commissioner. It is submitted that initiation of acquisition - 5 - 260.95 proceedings on 13th September, 1971 was invalid because, by that time reservation of the land had already lapsed. It is submitted that on 9th February 1970 purchase notice was given. Relying on sub-section 5 of section 49 of the Act, it is submitted that if the State Government passes any final order within six months from the receipt of purchase notice, the notice is deemed to be confirmed on expiration of period of six months. It is submitted that the purchase notice was given on 9th February, 1970. Six months period would be over on 9th August, 1970. Therefore, the notice would be deemed to be confirmed on 9th August, 1970 and therefore, in terms of sub-section 7 of section 49 of the Act acquisition proceedings will have to be initiated within a period of one year from 9th August, 1970. Consequence of not adopting of proceedings within that period would be that the - 6 - 260.95 reservation would lapse. In the present case, reservation would lapse on 10th August, 1971. Therefore, acquisition proceedings initiated by the Corporation pursuant to the letter dated 13th September, 1971 would not be valid and therefore, the Corporation was not in a position to impose any condition for deleting the land from reservation. It is further submitted that the Corporation by its letter dated 5th July, 1980 addressed to Suryakant Pawar has deleted identical condition from the IOD granted in favour of Suryakant Pawar in relation to the adjoining land. The petitioner and Suryakant Pawar are identically situated and therefore, deletion of condition from Pawar s IOD and continuation of that condition in the Petitioner s case is violative of Article 14 of the Constitution of India. - 7 - 260.95 4. We have heard learned counsel appearing for the Corporation. She is not in a position to explain why similar condition in relation to Suryakant Pawar has been deleted. She accepted that if the purchase notice is dated 9th February, 1970 it would be deemed to be confirmed on 9th August, 1970. 5. We have heard learned counsel appearing for the State Government. Now, in the light of these rival submissions, record of the matter is perused, it becomes clear that it is nobody s case that any proceedings for acquisition of the land were initiated in the year 1968. Therefore, finding of the State Government in the appellate order that because proceedings for acquisition of the land were initiated in the year 1968 no purchase notice could be served in the year 1970 while acquisition proceedings were - 8 - 260.95 pending suffers from total non-application of mind and is contrary to the record. It is apparent that purchase notice was given on 9th February, 1970. Sub-section 5 of section 49 of the Town Planning Act reads as under : If within a period of six months from the date of which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period. 6. From the above quoted provision, it is clear that within a period of six months form the date of receipt of purchase notice, the State Government has to pass final order and consequence of the government not passing a final order is that the notice is deemed to be confirmed on expiry of a period of six months. In the present case, that date would be 9th August,1970. - 9 - 260.95 Sub-section 7 of section 49 of the Act reads as under: If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation,designation or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan. 7. A perusal of the above quoted provision shows that proceedings for acquisition would have to be initiated within one year from the date of confirmation of the notice and consequence of not initiating such proceedings is that reservation in relation - 10 - 260.95 to the land lapses. In the present case, the relevant date will be 10th August, 1971. If acquisition proceedings are not initiated on or before 10th August, 1971 reservation will lapse. Therefore, it is clear that resolution of the Improvement Committee of the Corporation dated 27th August, 1980 imposing the condition which is impugned in the present petition proceeds on a wrong assumption that acquisition proceedings in relation to the properties are pending. There was no valid acquisition proceedings in relation to the land pending on 27th August, 1980 and therefore, there was no justification whatsoever for the Corporation to impose the condition of reservation of 10% of accommodation for nominees of the Corporation. It is apparent from the record that so far as this condition is concerned, Suryakant Pawar and the petitioner were identically situated. In relation to - 11 - 260.95 Suryakant Pawar that condition has been deleted by communication dated 5th July, 1980 without giving any reason by the Deputy Engineer,City. In the case of the petitioner, it is maintained without giving any reason. The conduct of the Corporation therefore, discriminatory and in our opinion, for this reason also that condition is liable to be set aside . 8. In the result, Petition succeeds and is allowed. Rule made absolute in terms of prayer clauses (a) and (b). No order as to costs. D.K.Deshmukh, J N.D.Deshpande, J - 12 - 260.95 - 13 - 260.95