IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 133 OF 2007 OF MOTION NO. 133 OF 2007 OF MOTION NO. 133 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO. 3060 OF 2002 PETITION NO. 3060 OF 2002 PETITION NO. 3060 OF 2002 Dr. Abraham Patani & Anr. ..Petitioners V/s. State of Maharashtra & Ors. ..Respondents ...... Mr. C.M. Korde, Sr.Adv. i/by Solomon & Co. for the Petitoners Mr. Milind More, A.G.P. for Respondent No.1 Mr. K.K. Singhavi, Sr.Adv. with Ms. A.K. Savla for Respondent Nos. 2 and 3. Mr. A.D. Joshi for Respondent Nos. 4 and 5. Mr. G.V. Bhagwat i/by Mr. Divekar & Co. for Respondent No. 6 to 9. ....... CORAM CORAM CORAM : SHRI J.N.PATEL & : SHRI J.N.PATEL & : SHRI J.N.PATEL & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE : 28th JULY, 2008. : 28th JULY, 2008. : 28th JULY, 2008. P.C.: . Heard learned counsel for the parties. The Petitioners have taken out this Notice of Motion for seeking to stay the effect of Resolution No.1117 dated 28th October 2008, Notification dated 15th February, 2005 issued by Respondent No.10 and Notification dated 2nd March, 2006 (Exh.- "LL" to the Petition) issued by Respondent No.11, and interim relief for the same. : 2 : 2. In order to ascertain the prima facie case, we may record certain facts relevant to that limited purpose. The acquisition of the subject land has been initiated by issuing a Notification under Section 4 of the Land Acquisition Act, 1894 in respect of the subject land bearing C.T.S. Nos.23, 24 and 26 of village Mulgaon, Taluka Andheri East for the purpose of 18.30 meters wide (new road line) connecting the existing Mahakali Caves Road and MIDC Central Road, Andheri (East). 3. This Notification was subsequently followed by Section 6 notification issued under the Land Acquisition Act, 1894 by the Additional Commissioner of Konkan Division and pursuant to the said notification, an Award has been passed under Section 11 of the Land Acquisition Act, 1894, which is purported to be challenged by the Petitioners by seeking an amendment to the Petition. 4. It is the case of the Petitioners that the Respondent-Municipal Corporation could not have taken the subject land in question for the purpose of widening the proposed road i.e. 18.30 meters (60 feet) East-West road as specified in the Notification, for the very : 3 : reason that the proposal of the Respondent-Municipal Corporation, which is the local planning authority under its development plan was turned down by the State Government. 5. On the other hand, it is the contention of the Respondent that though the proposal was turned down by the State Government, nothing prevents the State Government to acquire the said land for the said purpose, independent of the development plan. As per the sanctioned original development plan, road of 60 feet width connecting the existing Mahakali Caves Road and MIDC Central Road, Andheri (E) is passing through the Petitioner’s property which was also proposed for the reasons submitted by MCGM for approval of the State Government. The said representation was considered by the Secretary, Urban Development Department and recommendation of the Revised Development Plan Cell and Advisory Committee was allowed by the Planning Authority for realignment of road made on a subsequent representation by the BMC. 6. As an alternative to the said, it is stated that the planning authority i.e. Municipal Corporation of Greater Mumbai submitted a revised development plan. It : 4 : is the case of the Respondent-MCGM that the planning authority had right to propose any modification in the sanctioned development plan as per the provisions of the Maharashtra Regional and Town Planning Act, 1966 subject to approval of the State Government and also has a right to propose a road under Section 19 of the Mumbai Municipal Corporation Act, 1888. 7. It is the contention of the Petitioner that in the present case and in such a situation, it is necessary to follow the procedures laid down under Section 37 of the MRTP Act, 1966 and such acquisition of land for the proposed road alignment cannot be carried out under the Land Acquisition Act, 1894. 8. The learned counsel appearing for the Petitioner in support of the Notice of Motion submitted that once the State Government having rejected the proposal of MCGM in the Revised development plan, the same cannot be resubmitted by taking recourse to land acquisition. It is submitted that it can only be done by following the procedure laid down under Section 91 of the Mumbai Municipal Corporation Act, 1888 and as such as no approval had been obtained by the Respondent-MCGM, the whole proceedings under the Land Acquisition Act stands : 5 : vitiated. 9. It is strongly refuted by the learned counsel appearing for MCGM as well as the learned AGP contending that Section 91 (1) of the Mumbai Municipal Corporation Act, 1888 does not suggest that the procedures under Sections 90 and 91 must be first undertaken if the property can be compulsorily acquired under the Land Acquisition Act. 10. We are satisfied that reference of Section 91 of the MCGM Act does not arise in the facts of the present case. Further, we do not find that there is any legal impediment in the way of the Respondent-MCGM to have invoked the power under section 91. It would have acquired the land needed for the the said purpose by resorting to the provisions of Land Acquisition Act, 1894, despite the fact that though initially such a proposal was not preferred by the State Government, while considering the revised development plan on the representation made by the Petitioner. 11. From the fact that the State has on the request of MCGM, proceeded with initiation of acquisition of the subject land by issuing a notification under Section 4 : 6 : (1) followed by notification under Section 6 of the Land Acquisition Act settles the issue in so far as the acquisition of land for public purpose is concerned, followed by a final award. 12. We are informed that the award has been challenged by way of reference. It is submitted by the learned counsel for the Petitioners that it was out of abundant precaution and because of the stipulated period of the limitation the reference cannot be sorted out. 13. It is strenuously contended that all these notifications are not challenged in the Petition for which amendment is sought and that the Corporation resorted to provisions of Land Acquisition Act during the pendency of the Petition. If the interim order as sought is not granted it will greatly prejudice the case of the Petitioners. 14. We find that at this stage the Court has to consider whether the Petitioner has strong prima facie case apart from question of balance of convenience and irreparable loss. 15. In view of the fact that the subject land had : 7 : now been duly acquired by taking recourse to the Land Acquisition Act which can be undertaken by an Authority irrespective of the fact that it does not find part of the development plan by resorting to the provisions of Section 291 of the MCGM Act and which proposal has been accepted by the State. Further this is also permissible under Section 128 of the MRTP Act which vests in the State Government the power to acquire land for the purpose other than the one for which it is designated in any plan or scheme. Therefore we do not find that it is a fit case, where the Court should grant any interim relief as sought for in the Notice of Motion. Further, though the need of the road has been found to be in larger public interest and except for the Petitioner who is interested person, there is no other person who has raised any objection in the matter when proceedings under Section 5A of the Land Acquisition Act have been initiated nor this acquisition is challenged by any other person who is affected by the said road. Therefore, the Notice of Motion is dismissed. 16. On the request of the learned counsel appearing for the Petitioners, the order of status quo granted by this Court on 10th December, 2007 would remain into operation for a period of 8 weeks. : 8 : 17. The Chamber Summons to be considered on the next date. (J.N. (J.N. (J.N. Patel, J.) Patel, J.) Patel, J.) (K.K. (K.K. (K.K. Tated, J.) Tated, J.) Tated, J.)