1 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 1808OF 2002 Satish S/o Soma Bhole Age : 47 Yrs., Occ. Agril., & Business, R/o Shivram Nagar, Jalgaon. .... PETITIONER VERSUS 1. State of Maharashtra Through its Secretary Urban Development Department Mantralaya, Mumbai. 2. The Collector, Jalgaon. 3. The Jalgaon Municipal Corporation Jalgaon through its Commissioner. .... RESPONDENTS Mr. A.S.Bajaj, Advocate for petitioner. Mr.K.B.Choudhari, Additional Govt. Pleader for State. Mr. P.R. Patil, Advocate for resp. no. 3. 2 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) WITH WRIT PETITION NO. 7198OF 2005 Murlidhar S/o Shripad Phalak Died through legal heirs ： 1. Bharti Satish Bhole Age : 45 Yrs., Occ. House wife. 2. Arun Murlidhar Phalak Age : 54 Yrs., Occ. Service. 3. Yadunath Murlidhar Phalak Age : 52 Yrs., Occ. Service. 4. Hemant Murlidhar Phalak Age : 50 Yrs., Occ. Agril. 5. Kamal Murlidhar Phalak Age : 75 Yrs., Occ. Housewife. All R/o 10, Shivram Nagar, Opp. Collector Bungalow, Jalgaon. .... PETITIONERS VERSUS 1. State of Maharashtra Through its Secretary Urban Development Department Mantralaya, Mumbai. 2. The Jalgaon Municipal Corporation Jalgaon through its Commissioner. 3. The Collector, Jalgaon. 4. The Director of Town Planning Pune. .... RESPONDENTS 3 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) Mr. A.B.Kale, Advocate for petitioner. Mr.K.B.Choudhari, Additional Govt. Pleader for State. Mr. P.R. Patil, Advocate for resp. no. 2. WITH WRIT PETITION NO. 7226OF 2005 Anuratha Abhishek Bagdiya @ Agrawal Age : 28 Yrs., Occ. House wife. R/o Ganesh Kunj, Akashwani Chowk, Aurangabad. .... PETITIONER VERSUS 1. State of Maharashtra Through its Secretary Urban Development Department Mantralaya, Mumbai. 2. The Jalgaon Municipal Corporation Jalgaon through its Commissioner. 3. The Collector, Jalgaon. 4. The Director of Town Planning Pune. .... RESPONDENTS Mr. A.B.Kale, Advocate for petitioner. Mr.K.B.Choudhari, Additional Govt. Pleader for State. Mr. P.R. Patil, Advocate for resp. no. 2. 4 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) WITH WRIT PETITION NO. 7227 OF 2005 Suresh Shankar Mahajan Age : 57 Yrs., Occ. Agril. R/o 27, Vishnu Nagar, Jalgaon, Dist. Jalgaon. .... PETITIONER VERSUS 1. State of Maharashtra Through its Secretary Urban Development Department Mantralaya, Mumbai. 2. The Jalgaon Municipal Corporation Jalgaon through its Commissioner. 3. The Collector, Jalgaon. 4. The Director of Town Planning Pune. .... RESPONDENTS Mr. A.B.Kale, Advocate for petitioner. Mr.K.B.Choudhari, Additional Govt. Pleader for State. Mr. P.R. Patil, Advocate for resp. no. 2. CORAM : B.R. GAVAI AND S.V.GANGAPURWALA, JJ. 5 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) JUDGMENT RESERVED ON : 28/06/2010 JUDGMENT PRONOUNCED ON : 13/08/2010 ORAL JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. All these petitions involve common question of law and fact, as such are decided by this common Judgment. 2. The respondent - Municipal Corporation, Jalgaon ( Erst while Municipal Council ) on or about 17/7/1964 had published a declaration of intention to prepare Town Planning Scheme - II. On 17/2/1967, the draft scheme was sanctioned. The Arbitrator was appointed to implement the scheme and on 14/6/1979, the Town Planning Scheme - II was sanctioned by the Government. Earlier, prior to the sanction of the Development Plan, original plot No. 526 in Survey No. 170 was reserved for garden. After the Development Plan was sanctioned, owners of land Survey No. 170 ( 18 persons), which was bearing original plot No. 526 were allotted final plot No. 524. Subsequently, these persons, who were allotted final plot No. 524, sold their respective shares. The present petitioners are the purchasers of the undivided share of the original allot tees of plot no. 524. 3. The revised Development Plan was sanctioned on 6/1/1993 and final plot No. 524 was reserved for play ground and primary school - site Nos. 126 and 127, the said revised Development Plan came into force on 15/2/1993. After completion of the period of 10 years, a right is created upon the occupier or 6 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) the person having an interest in the property to issue a purchase notice. The petitioners/their predecessors issued purchase notice to the Jalgaon Municipal Corporation. The same was received by Jalgaon Municipal Corporation. The Jalgaon Municipal Corporation failed to acquire the land within the said period of six months as stipulated in Section 127 of the Maharashtra Regional and Town Planning Act ( For short, ' M.R.T.P. Act ' ). As such, the petitioners have moved this Court seeking directions against the respondents to de-reserve the plot. 4. The respondent - Municipal Corporation, Jalgaon has filed affidavit in reply contending that the petitioners have not produced any document to substantiate their title. The Arbitrator had given to the alleged vendor of the petitioners and other 17 persons final plot No. 524 and it was agreed that the original owners of original plot No. 526 ( final plot No. 599 ) will hand over vacant and peaceful possession of the said plot to the then Municipal Council in lieu of final plot No. 524. As the original owners had not handed over the possession of original plot No. 526 ( final plot No. 599 ) to the then Municipal Council, the Municipal Council did not hand over final plot No. 524 to the owners of the original plot No. 526 ( final plot No. 599 ). The basis of exchange of land has become illegal due to acts indulged into by the petitioners and others. According to it, the petitioners are not interested persons. 5. Mr. A.S.Bajaj and Mr. A.B. Kale, the learned counsels for the petitioners canvassed before us following submissions - 7 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) (i) M.R.T.P. Act is a complete Code in itself laying down rights and obligation of the respective parties. (i i ) After preparation of the draft scheme, the State Government has sanctioned the said scheme U/s 68 of the M.R.T.P. Act. Thereafter U/s 72, the State Government appointed an Arbitrator for the purpose of the Planning Scheme. The Arbitrator has drawn the final scheme and as per the same, petitioners predecessor were allotted final plot No. 524 in lieu of original plot no. 526. The State Govt. has sanctioned the final scheme. Thereafter, all the rights in the original plots, which have been reconstituted shall determine and the reconstituted plots shall become subject to the rights settled by the Arbitrator and the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme. (iii) The documents on record show that the possession was handed over to the original owners of final plot no. 524 and as such had vested in them. The original owners sold the plots and the subsequent purchasers became the owners and possessors of the same. Their names are also recorded in the record of rights to substantiate the contention that final plot no. 524 vested in petitioners. They relied on - (1) AIR 1969 SC – 634 - State of Gujaarat V/s Shantilal Mangaldas and others. (2) 2002 (5) MLJ – 1 - Mani D. Seervai and others V/s State of 8 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) Maharashtra and others. (3) AIR 1972 SC – 793 – The Municipal Corporation of Greater Bombay and another V/s The Advance Builders (India ) Pvt. Ltd. and others . (iv) Enquiry into title is not contemplated. The names of the petitioners are validly recorded in P.R. Card. The same is a valid notice of title. For said purpose they relied on - (1) 2008 (2) ALL MR – 266 - Savatram Dairy Products Ltd. V/s Akola Municipal Corporation & Ors. (2) 2001 (4) MLJ – 21 - Shankarlal Khimji Patel and another V/s Municipal Corporation of Greater Bombay and others. (3) 2005 (3) ALL MR – 197 - M/s C.V. Shah & A.V. Bhat V/s State of Maharashtra & Ors. (4) AIR 1988 SC – 233 - Municipal Corporation of Greater Bombay V/s Dr. Hakimwadi Tenants Association and others. (v) Notice U/s 127 has been issued and served upon the Municipal Corporation by the petitioners and /or their predecessors. Still the respondents have not acquired the land. No steps have been taken for acquisition of the land. As such, on the lapse of six months, said lands stand de-reserved by operation of Statute and they would be free to use said land. 9 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) (vi) The possession panchanamas show that possession of final plot no. 524 was delivered to original owners and the contention of respondent – Municipal Corporation that possession of final Plot No. 524 was not given is incorrect. 6. Per contra, Mr. P.R. Patil, the learned counsel for the Municipal Corporation vehemently contended that - (i) The petitioners have till date not produced the document of title so as to substantiate their ownership. They are not the alleged original allottees and unless they can substantiate their ownership by any document of title, they can not be termed as persons having interest in the property. The property register card is not a document of title and it is meant only for fiscal purpose. For that purpose, relied on the Judgment of the Apex Court in a case of Suraj Bhan and others V/s Financial Commissioner and others reported in ( 2007) 6 Supreme Court Cases – 186 and Rita Premchand and another V/s State of Maharashtra and others reported in 2001 (4) Mh.L.J. - 671. (ii) The original owners who claim to have been allotted final plot no. 524 were in fact never put in possession of final plot No. 524 for the reason that plot no. 524 was allotted to them in lieu of original plot no. 526 ( final plot NO. 599) but the original owners had illegally sold the said original plot no. 526 and as such did not get any right in final plot no. 524. 10 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) 7. Before adverting to the respective submissions of the learned counsels for the parties, it would be worthwhile to reproduce some of the relevant provisions of the M.R.T.P. Act. “ Sec. 72. Arbitrator : his powers and duties . (1) Within one month from the date on which the sanction of the State Government to the draft scheme is published in the Official Gazette, the State Government shall for purposes of one or more planning schemes received by it for sanction appoint any person possessing such qualifications as may be prescribed to be an Arbitrator with sufficient establishment and his duties shall be as hereinafter provided. (2) xxxxxx (3) xxxxxx ( i ) to (xii) xxxxxxxx (xiii) provide for the total or partial transfer of any right in an original plot to a final plot or provide for the extinction of any right in an original plot in accordance with the provisions contained in Section 101; ( 4 ) The Arbitrator shall decide all matters referred to in sub section (3) within a period of twelve months from the date of his appointment, and in the case of an Arbitrator appointed under the Bombay Town Planning Act, 1915 ( Bom. I of 1915 ) or a Town Planning Officer appointed under the Bombay Town Planning Act, 1954 ( 11 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) Bom. XXVI of 1955) (whose appointment is continued under Section 165 ) within a period of twelve months from the date of the commencement of this Act : Provided that, the State Government may, if it thinks fit, whether the said period has expired or not, and whether all the matters referred to in sub section (3) have been decided or not, extend from time to time by a notification in the Official Gazette the period for deciding all the matters referred to in that sub section ( 3 ) or any extended period thereof. Sec. 86. : Sanction by State Government to final scheme. (1) The State Government may, within a period of four months from the date of receipt of the final scheme under Section 82 from the Arbitrator or within such further period as the State Government may extend, by notification in the Official Gazette, sanction the scheme or refuse to give such sanction provided that in sanctioning the scheme the State Government may make such modifications as may in its opinion be necessary, for the purposes of correcting an error, irregularity or informality. Sec. 88. Effect of final scheme On and after the day on which a final scheme comes into force - (a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all 12 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) encumbrances ; (b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator ; (c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme. Sec. 89. Power of Planning Authority to evict summarily. (1) On and after the day on which a final scheme comes into force, any person continuing to occupy any land which he is not entitled to occupy under the final scheme may, in accordance with the prescribed procedure be summarily evicted by the Planning Authority or any of its officers authorized in that behalf by that Authority. Sec. 90. Power to enforce scheme. (1) On and after the day on which a final scheme comes into force, the Planning Authority may, after giving the prescribed notice and in accordance with the provisions of the scheme, - (a) remove, pull down or alter any building or other work in the area included in the scheme which is such as to contravene the scheme or in the erection of which or carrying out of which, any provision of the scheme has not been complied with ; (b) execute any work which it is the duty of any person to execute under the scheme, in any case where it 13 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) appears to the Planning Authority that delay in the execution of the work would prejudice the efficient operation of the scheme. 8. From the perusal of the provision of M.R.T.P. Act, it is evident that the respondent Corporation is exclusively entrusted with the duty of the implementation of the planning scheme and the responsibility of removing the huts, sheds or other structures, which contravene the scheme, is that of the Corporation and not of the owners of the plot. The scheme of the M.R.T.P. Act is such that it casts duty on the Planning authority to implement the scheme. Sections 88, 89 and 90 of the M.R.T.P. Act lay down a mandate on the Corporation to remove all encroachments and for said purpose it has power to summarily evict the encroachers, trespassers, etc. The Apex Court in case of The Municipal Corporation of Greater Bombay and another V/s The Advance Builders ( India ) Pvt. Ltd. and others - reported in AIR 1972 SC – 793 has observed that - “ 10. The Scheme and the regulations made thereunder must be read as supplemental to the Act and, when that is down, there is no room for any doubt whatsoever that the local authority is entirely responsible for removing the huts, sheds, stables and other temporary structures which contravene the Town Planning Scheme. The Scheme gives a statement of works to be constructed under the Scheme which comprises a number of roads and the drainage system. The Scheme then specifies which final plots under the Scheme are reserved for 14 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) public or municipal purposes. In the section dealing with the regulations controlling the development of the area under the Scheme, the various final plots are mentioned and directions have been given as to how they are to be utilized. Regulation 6 is as follows : - “ No hut or shed whether for residential user or otherwise, or temporary moveable shops on wheels or such other temporary structures shall be allowed within the area of the Scheme ”. It is possible to construe this regulation as prospective in operation, because Regulation 9 provides that any person contravening any of the aforesaid regulations or any of the provisions of the Scheme is liable to be prosecuted and fined. As a part of the Scheme, there is a Redistribution and Valuation Statement which shows which are the original plots, who were the owners thereof, whether those plots were encumbered or leased out, who the mortgagees and lessees were, what is the number of the reconstituted or the final plot allotted to such owners, what contributions have to be made by the owners and what additions or deductions are to be taken into account while deciding the contributions. In the case of some of the final plots, certain rights are given and liabilities imposed and, in suitable cases, compensation also is directed to be paid. And, then, to this Redistribution and Valuation Statement eleven Notes are appended which are important. Note I says that all rights of mortgagors or 15 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) mortgagees, if any, existing in the original plots are transferred to their corresponding final plots. Note 2 deals with the rights of lessors and lessees in the original plots. By Note 3, all rights of passage hitherto existing are extinguished. By Note 4, agreements in respect of original plots are transferred to the final plots. By Note 5, the tenures of all original plots are transferred to the corresponding final plots. Note 6 permits the original plot owners to remove their detachable material on the plot if they are deprived of the same. They are required to remove their wire fencing, compound wall, sheds, huts or other structures. They can do so within three months from the date on which the final Scheme comes into force, the idea being that the final plots must be clean plots for being allotted to another under the Scheme. This permission under Note 6 has given not because the local authority has no power to remove wire fencing, huts, sheds, etc. that power is there as already shown under Section 55. But this is a concession made in favour of the owner. Since the owner is required to remove himself from this plot, he is permitted to take away whatever material he could easily remove. And, then Note 11, to which reference has already been made, provides that all huts, sheds, stables and such other temporary structures including those which do not conform to the regulations of the Scheme, are required to be removed within one year from the date the final Scheme comes into force. The Note refers not merely to huts, sheds, stables which do not conform to the regulations of the Scheme, but also to all huts, sheds and stables and such other temporary structures. Whosoever 16 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) the owner or the occupant of the same might be, he is required to remove the same within one year from the date the Final Scheme comes into force. This is an important regulatory provision which has the effect as if enacted in the Act. If the owner or the occupant of these huts, sheds and stables does not remove the same within one year from the date the final Scheme comes into force, he would be contravening the provisions of the Scheme and, thereupon, the local authority will have the power under S. 55 (1) (a) to remove or pull down these huts, sheds, stables, etc. Note 11 has taken due note of the fact that, if the huts, sheds, stables, etc. are demolished, the owners or occupants thereof will become dishoused. Hence, further provision is made that persons thus dishoused will be given preference in the allotment of land or accommodation in Final Plot No. 16 allotted to the Corporation. In other words, it is implicit in this Note that the Corporation may not hesitate to pull down or remove these huts and sheds, etc. because provision is already made for allotment of land in the Corporation’s Plot. The Note, therefore, indirectly establishes that it is the primary duty of the Corporation as the local authority to remove all offending huts, sheds, stables and temporary structures in the whole area under the Scheme and not merely from those areas which are allotted to the Corporation under the Scheme. 11. Our attention was invited by the learned Attorney – General to the Maharashtra Regional and Town Planning Act, 1966 which came into force on 11th January, 1967. The Act came into force when the 17 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) present litigation was pending in the High Court but it does not appear that any reference was made to the provisions of that Act. It is a more comprehensive legislation with regard to development and planning than the Bombay Town Planning Act, 1954 to the provisions of which we have already made a reference. By Section 165 (1) of the Maharashtra Regional and Town Planning Act, 1966 the Bombay Town Planning Act, 1954 is repealed; but, by virtue of sub section (2) of Section 165, all Schemes finalized under the Bombay Town Planning Act, 1954 are deemed to have been framed under the corresponding provisions of this Act and the provisions of this Act shall have effect in relation thereto. The more important provisions of the Bombay Town Planning Act, 1954 to which a reference has been made by us above were Ss. 53,54 and 55. The corresponding provisions in the new Act are Sections 88,89 and 90. Section 53 consisted of two Clauses (a) and (b). They are the same as the first two Clauses (a) (b) of the corresponding S. 88. One more Cl. (c) is added which provides that the planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final Scheme. The Planning Authority is the same as the Local Authority under the Bombay Town Planning Act, 1954 – in the present case, the Bombay Municipal Corporation. There was no specific provision in Section 53 directing the local authority to hand over possession of the final plots; but, in our opinion, that was implicit in the Scheme when the original plots were reconstituted and the reconstituted plots were allotted to the owners of the 18 W.P. 1808/02,7198/05,7226/05,7227/05 - ( J ) original plots. Clause (c) of Section 88, therefore, merely clarifies what was implicit in Section 53 of the old Act. Section 54 of the old Act corresponds to sub section (1) of Section 89 of the new Act. Sub Section (2) of Section 89 is a new provision which makes it obligatory upon the Commissioner of Police and the District Magistrate to assist the Planning Authority in evicting persons from the final plots whom there is unlawful opposition to the same. Section 55 of the old Act corresponds to Section 90 of the new Act and is practically the same in content. In our opinion, therefore, there is nothing in the new Act which requires us to reconsider the above finding ”. As such, it is no gain saying on the part of respondent – Corporation that encroachments are made on original plot no. 526 ( final plot no. 599 ), due to acts of commission on the part of the owners thereof, who were allotted final plot No. 524 and as such they would not be entitled to final plot No. 524. Such a plea would be against all tenets of law, justice and equity. Once a final plot has been allotted in favour of a person and the possession is also delivered, the said person would be entitled to enjoy the said plot as a full owner thereof. When the scheme comes into force, all rights in the original plots