Bombay HC: Plots Designated As Burial Ground In Development Plan Can’t Be Put To Any Other Use without following procedure for change of user

 It is clear that once the plots are designated as burial ground, cremation ground or Smashan Bhumi in the development plan, then they cannot be put to any other use other than the one designated.

7. In the meanwhile, we direct that the plots mentioned in paragraph-6 of the affidavit dated 14 September 2022, which have been designated as Cremation Ground/ Burial Ground/ Smashan Bhumi in the development plan will not be put to any other use other than the one designated in the development plan unless requisite procedure of law is followed for the change of user.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE

PUBLIC INTEREST LITIGATION NO. 119 OF 2021

Mr.Melwyn Isidore Fernandes and Others  V/s. The State of Maharashtra and Others 

CORAM : NITIN JAMDAR, ACJ. AND ARIF S. DOCTOR, J.

DATE : 19 July 2023.

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Whether any person other owner of immovable property can give valid notice U/S 127 of MRTP Act?

 c] In the case of Ramchandra Shankar Joshi and others v. State of Maharashtra and others reported in MANU/MH/2180/2015 : 2016 (1) Mh LJ 765 : 2015 (6) AIR Bom R 364 in paragraph Nos. 7 & 8 the Division Bench of this Court has observed thus:

"7. It is a settled position of law that notice contemplated under Section 127 of the Act of 1966 is to be given by the owner or the person having interest in the land which is reserved, allotted or designated for the particular purpose in the development plan. The object of the notice under Section 127 is to inform the Authority mentioned therein to acquire the land which is designated, reserved or allotted in the final development plan. It is further settled position in law that form of notice under Section 127 is not prescribed. Therefore such notice shall meet sufficient requirement in describing the land in clear terms and require the planning authority or development authority or the appropriate authority, as the case may be, to acquire or compulsorily purchase the land so reserved, allotted or designated in the development plan. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5312 of 2016

Decided On: 20.03.2018

Mariyam Begum Abdul Jalil Khan and Ors.  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Author: S.M. Gavhane, J.

Citation: MANU/MH/1536/2018.

Read full Judgment here: Click here

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Whether the condition of attaching the documents of title with the purchase notice notice U/S 127 of MRTP Act is deemed to be waived by the Municipal Corporation if it has not replied to said notice?

d] In the case of M/s. Gupta Loom Industries & Anr. v. The State of Maharashtra and Ors., reported in MANU/MH/3005/2015 : 2016 (6) ALL MR 307 : (2016 (1) ABR 170) the Division Bench of this Court in Paragraph Nos. 13 and 14 has observed as under:

"13. It is true that the notice under subsection (1) of Section 127 has to be construed strictly as non-compliance with the notice has a drastic consequence of lapse of reservation. Therefore, the mandatory requirement of law is that strict compliance must be made of while issuing a notice under sub-section (1) of Section 127. In the facts of the case, we find that specifically on the basis of the said notice dated 7th October, 2010, the General Body of the Municipal Corporation passed a resolution for initiating acquisition proceedings. The proposal for the acquisition specifically refers to the said notice. Hence, even the said Corporation has acted upon the said notice dated 7th October, 2010 by treating it as a notice under Section 127.

14. It is well settled that if certain requirements or conditions are provided by a statute for the benefit of a person, the said requirements or conditions though mandatory, may be waived by the said person if no public interest is involved. In the facts of the case, the Municipal Corporation acted upon the said notice by passing a resolution to initiate acquisition proceedings which shows that the alleged defects in the notice were waived by the said Corporation for whose benefit certain requirements are provided in Section 127."

 31. Learned Advocate appearing for the petitioners relying upon the ratio laid down in the case of M/s. Gupta Loom Industries & Anr cited (MANU/MH/3005/2015 : 2016 (1) ABR 170) (supra) and Supreme Industries Ltd. Through its Authorized Signatory cited (supra)submitted that, in the present case as respondents have not replied purchase notice it can be said that they have waived the condition of attaching the documents of title with purchase notice. In both the above said decisions the respondent Municipal Corporation had passed resolution for initiating acquisition proceedings to acquire the land after receipt of the purchase notice and acted upon the said notice. Therefore, it was held in the said decisions that respondents have waived the alleged defect in the notice. In the present case, it is not the case of any of the respondents that after receipt of the purchase notice the respondent Municipal Corporation has passed resolution to initiate acquisition proceedings to acquire the subject properties. Thus, facts of above decisions are different from facts of this case. Therefore, the arguments advanced as above on behalf of the petitioners is not accepted and the ratio laid down in the above decisions is of no help to say that the respondents have waived the condition of attaching documents of title with the purchase notice.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5312 of 2016

Decided On: 20.03.2018

Mariyam Begum Abdul Jalil Khan and Ors.  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Author: S.M. Gavhane, J.

Citation: MANU/MH/1536/2018.

Read full Judgment here: Click here

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Whether purchase notice U/S 127 of MRTP Act is invalid if documents of ownership are not annexed to said notice?

Learned Advocate appearing for respondent No. 4 submits that the petitioners are not owners of the subject properties. They have not annexed the documents of title to the subject properties with the purchase notice under Section 127 of the MRTP Act. Learned Advocate further submits that as per section 127 of the MRTP Act the land owners have to supply copies of documents showing their title or interest in the land with notice. Since the petitioners did not annex documents of their ownership to the subject properties with notice under Section 127 of the MRTP Act there is no compliance of the said provision and therefore the purchase notice given by the petitioners is invalid and therefore, as the petitioners have no locus to file the writ petition they are not entitled to relief of declarations as claimed in the petition to declare that the subject properties are deemed to be de-reserved since no steps have been taken by the respondents to acquire the said properties within one year of service of the said notice. {Para 20}

27. In the first place we shall deal with the objection raised by the contesting respondents that as along with purchase notice the petitioners did not annex the documents of their ownership/title to the subject properties which is mandatory requirement of purchase notice as per Section 127 of the MRTP Act the said notice is invalid and hence the petitioners are not entitled to de-reservation of the subject properties as claimed by them. On perusal of purchase notice (Exh. F) it does not show that alongwith said notice the petitioners had enclosed the documents of their title to the subject properties. Moreover, it is not their case in the petition that along with purchase notice which was sent by them on 29.09.2014 by RPAD they had annexed the documents of their ownership to the subject properties.

32. For the reasons discussed above we hold that the petitioners have failed to prove that the purchase notice (Exh. F) was served on the respondents with the documents of title by hand. Thus, as the purchase notice was not served on the respondents authorities with the documents of title to the subject properties and that ownership of petitioners is disputed by respondent the said notice is invalid. Therefore, there is substance in the arguments advanced by the learned Advocate appearing for respondent No. 4 relying upon the ratio laid down in the case of Jaika Vanijya Ltd. Nagpur and another (MANU/MH/0706/2013 : 2013 (3) AIR Bom R 1432) (supra) and Perfect Machine Tools Co. Ltd., (MANU/MH/0202/2008 : 2008 (2) AIR Bom R 642) (supra) that the purchase notice is invalid as the documents of title were not attached to it.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5312 of 2016

Decided On: 20.03.2018

Mariyam Begum Abdul Jalil Khan and Ors.  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Author: S.M. Gavhane, J.

Citation: MANU/MH/1536/2018.

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Whether the court can direct state to acquire a land?

 The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose. If the State was inactive for long number of years, the Courts would not issue direction for acquisition of land, which is exercise of power of the State to invoke its rights of eminent domain. {Para 8}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1965 of 2022

 Laxmikant and Ors. Vs. State of Maharashtra and Ors.

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Can a land owner be restrained from using his land in a particular manner if his land was reserved for a public purpose under a development plan?

The land was reserved for a public purpose way back in 2002. By such reservation, the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the Respondents to acquire the land but still the land was not acquired. The land owner cannot be deprived of the use of the land for years together. Once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for indefinite period. The Statute has provided a period of ten years to acquire the land Under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1965 of 2022

 Laxmikant and Ors. Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Hemant Gupta and V. Ramasubramanian, JJ.

Author: Hemant Gupta, J.

Decided On: 23.03.2022

Citation: MANU/SC/0353/2022

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Whether construction is permissible in open spaces left in approved building layout plans in residential zone?

     The development plan which is prepared by MHADA for entire area of more than 5,80,000 sq. yards, indicates broadly the usages in different zones. It is well known that such development plans are prepared by showing various zones such as residential, commercial, industrial etc. Merely because in such development plan prepared, in the area shown for residential purpose, authorities have not indicated the open spaces/garden, which were already left in the approved layout in such residential area, appellants cannot claim the benefit of making constructions in the plots which were left towards open space/garden. It is fairly well settled that the open spaces/garden left in an approved layout, cannot be allowed for the purpose of constructions. However, it is to be noticed that if one wants to utilize a big plot within the area of residential usage as indicated in the development plan, it is mandatory to sub-divide such big plots into smaller plots for utilizing them for the purpose of construction. When the layout is to be approved, certain percentage of area is required to be left towards roads, open plots, garden etc. The development Plan prepared by MHADA, cannot be confused with the layout which is approved confining to four big plots, on the application made by the appellants. It is not necessary for only the owner to apply for such layout. In any event, having applied for layout which was approved and after utilizing the 59 plots out of total of 61 plots, it is not open for the appellants to plead that it was not the obligation of the appellants to submit layout. In the layout sanctioned and obtained in the year 1967, the open spaces were rightly reserved as provided under Regulation 39 of 1967 DCR. Merely on such basis, the appellants cannot claim that the sub-plots which are covered by approved layout, left towards open spaces/garden, can also be used for constructions.  {Para 22}

23. It is also to be noticed that the open spaces are required to be left for an approval of layout or for the purpose of creating lung space for the owners of other plots where constructions are permitted. It is not open to claim for construction in the two plots which are reserved for open spaces/garden spaces also. It is fairly well settled that in an approved layout, the open spaces which are left, are to be continued in that manner alone and no construction can be permitted in such open spaces. The Development Plan which was submitted in the year 1999, as per the 1991 DCR, will not divest the utility of certain plots which are reserved for open spaces in the approved layout. The appellants cannot plead that such a layout was only temporary and as a stop gap arrangement, the said two plots were shown as open spaces/garden and now they be permitted to use for construction.                                  Supreme Court

JUSTICE MOHAN M. SHANTANAGOUDAR JUSTICE R. SUBHASH REDDY

Anjuman E Shiate Ali & Anr. Vs. Gulmohar Area Societies Welfare Group & Ors. etc.

CIVIL APPEAL NOS. 6216-6217 OF 2019

17th April 2020

Citation: 2020 SCC OnLine SC 373,2021(1) ALL MR 367 (S.C.)

Author: R. SUBHASH REDDY, J.

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Is it permissible for the municipal corporation to levy property tax on property situated in the village area if the development plan of the Municipal corporation includes that area?

Maharashtra Municipal Corporations Act (1949), S.3 - Bombay Village Panchayats Act (1958), S.4 - Constitution of India, Arts.243Q(2), 243G - Property tax - Levy of - Permissibility - Suit area, admittedly, was part of Village "A" - Requisite procedure prescribed under the Act 1949, and Act 1958 for purpose of inclusion of village area with Corporation limits - Not complied with by Corporation - In view of such facts, Corporation would not be empowered to impose property tax on the property situated in suit area - Mere inclusion of suit land/area in development plan of concerned Municipal Corporation - Would be of no consequences.

S.3 of Act 1949 provides that limits of larger urban area are required to be notified and published in official gazette in tune with Art.243 Q and particularly cl.2, of Constitution of India. In the present case it was not disputed that suit land was forming part of village 'A'. But there was no Government notification issued to include suit land within limits of Municipal Corporation, in terms of S.3. Further, for inclusion of any village from village limits in Corporation is also to be answered in tune with S.4(2) of Bombay Village Panchayat Act, 1958. However record shows that there was no declaration as contemplated u/s.4 that suit land was ceased to be a village. Under such circumstances, Corporation would not get right to impose tax. Mere inclusion of suit land in development plan of Municipal Corporation, would be of no consequences. Nor fact that appellant had made some payment to corporation in past or had applied for mandatory permission to Corporation, would operate as estoppel to question legality of demand notice by Corporation. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

K.U. CHANDIWAL, J.

Gramaudyogik Shikshan Mandal Vs. The Municipal Corporation, Aurangabad

First Appeal No. 1071 of 2013,Civil Application No. 14046 of 2013,Civil Application No. 5275 of 2013,Civil Application No. 12 of 2014

26th February, 2014

Citation:  2014(5) ALL MR 801

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Whether town planning scheme are subservient to development plan/zonal plan?

The legal contention urged on behalf of the respondents that
a town development scheme can be framed pursuant to the
development plan without there being a zonal plan, is not sustainable.
The learned Senior Counsel, Ms Pinky Anand and Mr Prashant Desai
on behalf of the respondents relied upon the Act pari materia for the
State of Gujarat where the Town Planning Act does not contemplate a
zonal plan, and which contemplates “DP-TP”.
There is no dispute with the law laid down by this Court and town planning
scheme has to be subservient to development plan/zonal plan. Development plan
which does not require micro planning is binding and can be implemented.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11307 OF 2016
[Arising out of SLP [C] No.30998 of 2010]
Ravindra Ramchandra Waghmare 
Vs.
Indore Municipal Corporation & Or
Dated:November 29, 2016. 

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Whether municipality can reject building permission on the ground of proposed Development plan?

  The Kerala High Court on Thursday, 30 July 2015 in a judgment titled ‘Havva T.P. Vs. Tirur Municipality‘ has opined that the Municipality is not at liberty to saddle the land owners by the proposed public purpose provided under a Detailed Town Plan Scheme (D.T.P.), without the land being acquired by the State Government or the Municipality for the purpose notified under the Scheme.
   On a reading of Rule 3, it is clear that the

applicability of the rule is for the purpose of carrying out

construction of public or private buildings and for other related

purposes. Therefore, the stipulation contained under Rule 3A

with regard to the supremacy of the Town Planning Scheme

can only be relating to the Rules regarding construction of the

buildings provided under Rule 3 referred supra. So also, in all

the afore cited judgments rendered by the Hon'ble Apex Court

as well as this Court, the Courts were largely considering the

question of Town Planning Schemes propounded under the

Town Planning Acts with reference to Article 300A of the

Constitution and held that without acquisition of the land, the

schemes so launched cannot be put into effect. Therefore,

the contention put forth by the Respondent that consequent to

introduction of Rule 3A, the Respondent was justified in

declining permit cannot be sustained. According to me, such a

principle was evolved by the Courts taking into account the

protection provided for enjoyment of the property conferred

under Article 300A of the Constitution.


     Taking into account all these circumstances and

settled legal position in accordance with the principles so laid

down by the Courts in the judgments cited supra, I am of the

considered opinion that the stand adopted by the Respondent -

Municipality that permit cannot be granted consequent on the

pendency of D.T.P. Scheme can never be sustained under law.



     Therefore, I set aside Ext.P3 order passed by the

Respondent - Municipality and direct the Municipality to take a

decision in the application submitted by the petitioners seeking

permit for construction of the building on production of

requisite order from the competent authority under the

K.L.U.O for use of the land for a different purpose in

accordance with law, taking into account the observations

made above.
           IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                               PRESENT:

                         MR. JUSTICE SHAJI P.CHALY

                 THURSDAY, THE 30TH DAY OF JULY,2015
                                   W.P.(C).No. 4050 of 2014 (E)
                                   

         HAVVA T.P, Vs TIRUR MUNCIPALITY,
            

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