1 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 6774 OF 2010 *** Municipal Corporation of City of Jalgaon, through its Commissioner, R/o C/o Municipal Corporation Building, Jalagaon. ... PETITIONER. VERSUS 1. The State of Maharashtra. Through Secretary, Urban Development Department, Mantralaya, Mumbai - 400 032. 2. The Collector, Jalgaon, District Jalgaon. 3. The Superintendent of Police, Jalgaon, District Jalgaon. 4. The Executive Engineer, Building & Construction Division, Opposite Collector Office, Jalgaon. ... RESPONDENTS *** Mr. N. B. Suryawanshi, Advocate for the Petitioner. Mr. K.M.Suryawanshi, A.G.P. for Respondent Nos.1 to 4. *** CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ. DATED:- 18th JULY, 2011. JUDGMENT [Per Deshmukh, J.]: 1. Heard learned counsel for the parties. 2. Rule, made returnable forthwith, heard finally 2 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- by consent of the parties. 3. "Municipality" means an institution of self Government constituted under Article 243-Q of the Constitution of India. Such definition is provided under Article 243 P (e) of the Constitution. Article 243-Q (1) provides that there shall be constituted in every State a municipal counsel for a smaller urban area; and a municipal corporation for larger urban area. "Corporation" means the municipal corporation constituted or deemed to have been constituted for a larger urban area known as city (section 2 (10) of Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the said Act of 1949, for short). In the case on hand, erstwhile municipal council, Jalgaon is transformed to Municipal Corporation, City of Jalgaon. 4. At the outset, learned counsel for the Petitioner Mr. Suryawanshi points out earlier order passed by this Court in Writ Petition NO.2958 of 1999. Copy of the said order is annexed to the petition. The said writ petition was filed on behalf of the Municipal Council, Jalgaon, through 3 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- its President. Writ petition NO.2958 of 1999 filed by the erstwhile municipal council, Jalgaon was heard and disposed of by this Court, by the order passed on 6th August, 2008. That petition was filed by the Municipal Council, Jalgaon for direction to the Respondent Nos.1, 4 and 5 to peacefully hand over the physical possession of the land under development plan passing through the residential premises of the Respondent no.5 in Survey No.442/AB and 440. There is no dispute amongst the parties that in writ petition No.2958 of 1999 apart from the State of Maharashtra and Divisional Commissioner, Nasik Division, Nasik, the Collector, Jalgaon and the Superintendent of Police, Jalgaon were party respondents. In the present writ petition, filed on behalf of the Municipal Corporation, Jalgaon, the District Collector, Jalgaon and the Superintendent of Police, Jalgaon are party respondents. The Executive Engineer, Building and Construction Division, who is Respondent No.4 in the present writ petition, was not party respondent in Writ Petition No.2958 of 1999. The Court [Coram: B. R. 4 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- Gavai and S. V. Gangarpurwala, JJ.) in writ petition No.2958 of 1999 has issued writ or direction which we reproduce herein below: "6] We, therefore, direct the respondent no.5 to hand over the possession of the land falling in his bungalow, which forms part of reservation for the public road as per 1993 revised Development Plan, within a period of one month from today. It is made clear that in case there is any dispute as to which part of the land of the bungalow forms part of the land reserved for public road, the respondent No.4 - the Collector, Jalgaon, and the Deputy Director of Town Planning, Nasik Division, Nasik, would demarcate the land in the bungalow, which is reserved for the public road. We further direct the Collector, Jalgaon, to ensure that the aforesaid directions are complied with within the stipulated period." 5. There are some undisputed facts, which we wish to state in brief: The Development Plan of Jalgaon city was sanctioned on 6th of January, 1993. The Respondent 5 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- handed over possession of the land admeasuring 6000 sq.mtrs. reserved for D. P. Roads (12 meters and 9 meters wide, respectively), to the petitioner. It is admitted by the parties that these two D. P. roads pass through Government land survey No.440 and 442 situated at Mauje Mehrun Shivar, Jalgaon. Possession of the land to the tune of 6000 sq.mtrs. from Government Land survey No.440 and 442 was given to the petitioner on 27th August, 2009. Learned A.G.P. fairly admits that possession receipt was executed by the competent officials according to law and is on record of this writ petition. An agreement was also executed amongst the petitioner and Respondent No.2. This agreement is part of the record of this petition. 6. Grievance of the petitioner is that these two D.P. roads (12 meters and 9 meters width respectively) pass through Government land Survey No.440 and 442. Actual physical possession of reserved land to the tune of 6000 Sq.mtrs. for these two proposed D.P. roads has not been delivered by Respondent Nos.3 and 4. Both these respondents are not permitting construction of 6 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- these two D.P. roads pass through Government lands survey No.440 and 442. It is contended on behalf of the petitioner that 12 meters wide D.P. road has been partly constructed. This is because, earlier Writ Petition No.2958 of 1999 was heard and writ was issued by this Court against Respondents. It is not the case of the Respondents that said order is challenged by them. Said order has attributed finality. In view of the order passed by this Court in Writ Petition NO.2958 of 1999 actual possession of part of the reserved land for 12 meters wide D.P. road was handed over to the petitioner. The petitioner, however, could not complete construction of remaining part of 12 meters wide D. P. Road since actual physical possession of that portion of land was not given to the petitioner. According to learned counsel for the petitioner, another D.P. road of 9 meters width could not be constructed on account of obstruction or non-delivery of actual physical possession of that portion of the land by the Respondents and more specifically by Respondent No.4. 7. Counsel appearing for respective parties have 7 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- unanimity on the point of publication of development plan (old limit) of Jalgaon city and sanction thereof by the State of Maharashtra somewhere in the year 1993 in accordances with the provisions of the Maharashtra Regional and Town Planning Act, 1966 (the Town Planning Act, for short). The record shows that the development plan (additional area) was sanctioned by the State of Maharashtra subsequently i.e. in the year 2002 and notification of the same was published in the official gazette of State of Maharashtra dated 11th February, 2002. Annexure-B is the copy of the said notification. There is no dispute amongst the parties regarding sanction of development/ re- development plan of city of Jalgaon. 8. On behalf of Respondent No.2 affidavit in reply is filed. It is sworn in by Mr. Shashikant S/o Ramdas Mangrul, Officiating as Tahsildar (Revenue), at the relevant time. It is stated in this affidavit that possession of the land to the tune of 6000 sq.mtrs. for proposed D. P. Roads was given to the petitioner on 28th August, 2009. It reflects from this affidavit that the Sub 8 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- Divisional Officer, Jalgaon has issued some directions to the District Inspector of Land Records to submit a report. It was because of the correspondence addressed by Respondent No.4 to the District Collector. On 11th October, 2010 report was received by the Collector. Affiant Mr. Magrule, in this affidavit, has contended that there was no inaction on the part of office of District Collector. Steps, which were required to be taken, had been taken. 9. On behalf of Respondent No.3 affidavit in reply is filed. It is sworn in by Mr. Prakash Prabhakarrao Mutyal, Superintendent of Police, Jalgaon. At the out set, we have notied from this affidavit, a grievance raised by affiant that reserved land to the extent of 6000 Sq.mtrs. belongs to police department. However, Respondent No.2 District Collector, without prior consent of police department, has given paper possession of said land to the Corporation. It is very difficult to appreciate that reserved land to the tune of 6000 Sq.mtrs. belongs/owned by police department. Land survey No.440 and 442 are Government lands in 9 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- their entirety. Discord in the departments of State of Maharashtra cannot be a ground to cause frustration to the development of Corporation city of Jalgaon. Section 2 (19) of said Act of 1966 defines "Planning Authority" as local authority, and includes a Special Planning Authority constituted or appointed or deemed to have been appointed under section 40. "Local Authority" is also defined under section 2 (15) which we reproduce hereinbelow: "Local Authority" means - (a) the "Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act, or the Nagpur Municipal Corporation constituted under the City of Nagpur Municipal Corporation, 1948, or any Municipal Corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949. (b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965. (c) (i) a Zilla Parishad constituted under the Maharashtra Zilla 10 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- Parishads and Panchayat Samits Act, 1961. [(ii) the Authority constituted under the Maharashtra Housing and Area Development act, 1976], (iii) the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust Act, 1936,] which is permitted by the State Government for any area under its jurisdiction to exercise the powers of a Planning Authority under this Act." 10. Corporation thus is a local authority. A "Development plan" for the development or re- development of the area within the jurisdiction of Planning Authority (and includes revision of a development plan) and proposals of Special Planning Authority for development of land within its jurisdiction is contemplated under section 2 (9) of the said Act of 1966. Preparation, submission and sanction to development plan is governed by Chapter-III of the said Act of 1966. In view of the procedure laid down under Chapter-III of the said Act of 1966, procedure was completed for sanction of development plan of city of Jalgaon. 11 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- It is not the contention of either the Respondent No.3 or Respondent No.4 that they have raised objection to the development plan or re-development plan in accordance with Chapter-III of the said Act of 1966. Thus, development plan/ re-development plan sanctioned by the State Government, has attributed finality. 11. Second grievance of the affiant seems to be that paper possession of 6000 sq.mtrs. reserved land in revised development plan has been given by the District Collector - Respondent No.2 without prior consent of the police department. This contention also does not impress us. Discord in the departments of the State Government is not the subject matter of this writ petition, neither any of the department is petitioner before this Court. Section 7 of the Maharashtra Land Revenue Code, 1966 provides that the State Government shall appoint a Collector for each district (including the city of Bombay) who shall be in-charge of the revenue administration thereof; and a Tahsildar for each Taluka who shall be the Chief Officer entrusted with the local revenue administration of 12 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- a Taluka. Thus, in the case on hand, it is the District Collector, Jalgaon, competent authority who caused delivery of possession of 6000 sq.mtrs. reserved land to the petitioner. This fact is brought on record by the affidavit of Tahsildar which is filed on behalf of District Collector, Jalgaon, to which we have made reference in the foregoing paragraphs. Possession receipt on record Exhibit-E itself makes a reference to delivery of possession of 6000 sq.mtrs. area i.e. reserved land for proposed D.P. roads by following relevant rules (Maharashtra Land Revenue (Disposal of Government Lands) Rules, 1971). Thus, we do not see any infirmity/ illegality in relation to possession receipt Exhibit-E and order dated 8th of July, 2009 by Mr. Kunalkumar, District Collector, Jalgaon. 12. The third contention raised by Mr. Mutyal, Superintendent of Police, Jalgaon is, need of the 6000 sq.mtrs. land for police department in future. This ground also we have considered carefully. This ground was also earlier raised while opposing writ petition No.2958 of 1999. Basis for raising this ground is the document Exhibit R/1 annexed to 13 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- affidavit of Superintendent of Police Mr. Mutyal. A look to this document Exhibit R/1 shows that said document is a circular of Government issued on 25th August, 1970 on behalf of the Director General of Police. We wish to reproduce contends of the said circular herein below: "Lands Disposal of - adjoining police lines and police Head Quarters. GOVERNMENT OF MAHARASHTRA Revenue and Forests Department, Circular No.LND 1070/28496-I, sachivalaya, Bombay-32. Dt.30th June, 1970. C I R C U L A R O F G O V E R N M E N T. The Police organisation in the State is expanding and it is essential that the requirements of land for the Police Department should be met. Government is, therefore, please to direct that when even any land adjoining the Police Lines and Head Quarters if proposed to be sold, leased or even transferred to any Government Departments, the Proposal 14 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- should be made after prior consultation with the Police Department. The instructions should be followed scrupulously. By order and in the name of the Govt. Maharashtra. Under Secretary to the Govt. of Maharashtra & Revenue and Forests Department. To, The Inspector General of Police, Bombay. No.J/3093/GEN/ Bombay 25th August, 1970. Copy forwarded for information. Sd/- XXX For Director General of Police" 13. Learned A.G.P. could not point out from the affidavit of Mr. Mutyal, Superintendent of Police, future need or plans, if any, for the 6000 Sq.mtrs. land reserved for proposed D.P. roads. On inquiry made by us, as to how much is the land, in occupation/ available for the residential bungalow 15 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- of Superintendent of Police and Additional Superintendent of Police, Jalgaon, learned A.G.P. has made available data of land on a piece of paper. The said piece of paper is accepted, marked by letter "Z" for identification and taken on record. It is mentioned in this document Annexure- Z that area of bungalow of Superintendent of Police, Jalgaon in its totality is 4 Acres and 11 Gunthas. Area which is required to be handed over, as per reservation for two proposed D.P. roads, is 19.32 Gunthas. This document also shows remaining land with Superintendent of Police, Jalgaon which is to the tune of 3 Acres 31.68 Gunthas. It is further mentioned in this document that in view of the order passed by this Court in Writ Petition No. 2958 of 1999 actual physical possession of land to the tune of 4895.91 sq.mtrs. is already handed over to petitioner Municipal Corporation. This fact is fairly and clearly accepted by learned counsel for the petitioner. It is further mentioned in this document Annexure-Z that 2 Acres land is available for occupation of Additional Superintendent of Police, Jalgaon and 9 Gunthas land from the 16 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- occupation or possession of Additional Superintendent of Police, Jalgaon would be required to be handed over. Again, remaining land with official residence of Additional Superintendent of Police would be 1 Acre and 31 Gunthas. Learned A.G.P. has not produced on record future development plan and requirement of land, if any, of police department. Circular referred to is of 1970 and till today when we are considering second writ petition for the same purpose, requirement of even single square meter land or plan for that purpose has not been placed before this Court. Superintendent of Police, Jalgaon is, thus, only platituding the future requirement of land for expansion of police department. We found the contention without substance. Apart from this, in our opinion, this Government Circular Exhibit-R/1 has no application to the facts of the present case. Land to the tune of 6000 sq.mtrs. in occupation and possession of Superintendent of Police, Jalgaon (major portion) is not sought for by any other Government Department. Petitioner cannot be said to be Government Department. By 17 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- operation of law i.e provisions of Act of 1966 reserved land to the tune of 6000 sq.mtrs. stand vested with Petitioner. Superintendent of Police, Jalgaon is not precluded from seeking any other Government Land for its expansion and use. So also Respondent No.4 is not precluded from seeking permission for construction of residential quarters with toilets to their employees from Respondent No. 1 State Government independtly. 14. Next contention raised on behalf of Superintendent of Police, Jalgaon is construction of official residence of Superintendent of Police and Additional Superintendent of Police is from the British Regime. To be specific, a statement is made by Mr. Mutyal, Superitendent of Police that residential bungalow of Superintendent of Police was constructed during British Regime in the year 1908 and residential bungalow of Additional Superintendent of Police was constructed in the year 1908 - 1910 (para 3 of affidavit of Superintendent of Police Mr. Mutyal). According to learned counsel for the petitioner, stance taken by the Superintendent of Police is only on account of 18 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- power conferred upon the personnel working with the home department. He submitted that none of the public servant, is in occupation of such large residential premises. In our opinion, development plan, or revised-development plan have attributed finality, they were never objected, challenged by Superintendent of Police, Jalgaon. Contention that only paper possession was given also cannot be accepted. It appears that colonial mindset, is still holding the field at-least in relation to some departments of the State. On this background, we are not inclined to accept the contention raised on behalf of Respondent No.3. 15. On behalf of Respondent No.4, affidavit in reply is filed. It is sworn in by Mr. Vishwasrao Madhavrao Patil, Sub Divisional Engineer, Public Works Sub Division, Jalgaon. It is contended on behalf of Respondent No.4 that residential quarters of public works are constructed as back in the year 1948 on the said city survey No440 and 442. These are total 8 residential quarters of class-IV employees and 4 toilets. These structures are likely to be affected in case of construction of 19 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- proposed D.P. roads in 6000 Sq.mtrs. reserved land. Here also, grievance is raised that the District Collector has without prior approval or consent of the P.W.D. delivered possession and, therefore, it is illegal. A strange stance is also taken by Respondent No.4 in para 6 of the affidavit in reply. Respondent No.4 has addressed a letter dated 29th March, 2010 to the Petitioner to make alternate arrangement prior to handing over possession of the residential quarters. Said alternate arrangement sought for by the Respondent no.4 is detailed in Exhibit-G to the petition. It is a communication signed by Executive Engineer, Public Works Department, Jalgaon dated 29th March, 2010. It is addressed to Petitioner. This communication starts with the contention that the possession of 6000 sq.mtrs. reserved land for two proposed D.P. roads has been given by District Collector to the Petitioner as per rules. However, because of construction of these two proposed D.P. roads, structures of public works department standing on the said land are likely to be affected. It was inspected by Sectional Engineer 20 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- Mr. Patil and Mr. Firoz Kazi. In affected area, residential quarters of Class-IV are standing, area is 113.37 sq. metrs. from land Survey No.440. These are three residential structures. This letter also makes reference to other 8 residential quarters with 4 toilets in city survey No.442 having area of 70.72 sq. mtrs. In this communication, request is made that before demolishing these structures and carrying on construction of the D.P. roads, petitioner corporation should construct residential structures on any other government land and hand over to them. This communication has been pointed out to us by the learned A.G.P. Counsel appearing for the petitioner took us to the agreement Exhibit-D to the writ petition. This agreement is executed amongst Mr. D. H. Patil, Town Planner, Corporation city of Jalgaon and City Survey Officer, Jalgaon. With the assistance of counsel, we have read this agreement in its entirety. We find date of said document as 28th August, 2009, below the signature of City Survey Officer, Jalgaon. We have considered carefully terms and conditions of this 21 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- agreement. Learned A.G.P. could not point out any term saying that petitioner corporation shall construct residential premises of equal area, hand over possession of those premises to respondent No. 4 - P.W.D. and, thereafter, only these structures can be demolished and two proposed D.P. roads could be constructed. This agreement has been entered into with wide open eyes by the competent officials. On this background, said conditional stance taken by the Respondent No.4 cannot be accepted. 16. We have considered affidavits filed on behalf of Respondent Nos.2, 3 and 4 with utmost care. Respondent nos.3 and 4 have used the word "handing over paper possession of 6000 Sq.mtrs. reserved land to the petitioner. Paper possession, expression used by Superintendent of Police Mr. Mutyal in his affidavit, and on behalf of Respondent No.4, could not be explained by learned A.G.P. to us. Word 'possession', according to Black's Law Dictionary, means the detention and control, or the manual or ideal custody, or anything which may be the subject of property, for 22 WRIT PETITION NO.: 6774 OF 2010 Municipal Corporation of City of Jalgaon Versus The State of Maharashtra and others --------------------------------------------------- one's use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one's place