R.D.Dhanuka, J
1. By this petition filed under Article 226 of the Constitution of India, the petitioner seeks a writ of mandamus against the respondents to forthwith
withdraw the acquisition proceedings initiated by Notification dated 22nd July 2004 in respect of the petitioner’s land and to forthwith allow the
petitioner to develop the petitioner’s land on the basis of lapse of reservation.
2. The petitioner also prays for a declaration that on the basis of the purchase notice issued by the petitioner on 12th May 2003, the respondents have
not acquired the land of the petitioner or taken steps for its acquisition by issuing a declaration under Section 126 of the Maharashtra Regional and
Town Planning Act, 1966 (for short “the MRTP Actâ€) read with Section 6 of the Land Acquisition Act, 1894 within six months from the date of
service of purchase notice and thus the reservation of the writ land stands lapsed.
3. The petitioner also prays for a writ of certiorari for quashing and setting aside the Notification dated 22nd July 2004 issued by the respondents under
Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act. Some of the relevant facts for the purpose of deciding this petition are
as under :-
4. The petitioner owns a plot of land bearing C.S. No.90 of Dadar Naigaon Division, situated at Dadasaheb Phalke Road, Dadar, Mumbai - 400 014.
The petitioner had acquired the said plot of land (for short “the writ propertyâ€) under a registered consent decree passed by this Court on 9th
February 1987 in Suit No.1593 of 1981. It is the case of the petitioner that the entire development plan for ‘F’ South Ward came into force with
effect from 11th October 1992. The whole development plan except the excluded portions was sanctioned on 19th December 1991 and came into
force w.e.f. 30th January 1992. The plan for the excluded portion of the development plan was sanctioned on 3rd June 1992 and came into force with
effect from 11th October 1992.
5. The plot of land of the petitioner admeasures 5061.91 sq.mtrs. out of which 63.64 sq.mtrs. had been acquired for road widening and 1993.59
sq.mtrs. of the writ property is designated/ reserved for playground in the development plan. 10 years’ period expired on 10th October 2002 from
the sanctioning of the development plan.
6. The petitioner issued a purchase notice under Section 127 of the MRTP Act on 12th May 2003 to the Municipal Corporation to acquire the writ
property or to take steps for its acquisition within six months from the date of service of the purchase notice.
7. The petitioner worked out the computation of the compensation as Rs.9,20,42,891/-. It is the case of the petitioner that on 27th June 2003, the
Municipal Commissioner addressed a letter to the Municipal Corporation/Improvement Committee recommending the acquisition of part of the writ
property pursuant to the purchase notice issued on 12th May 2003. On 19th August 2003, a resolution was passed by the Improvement Committee
approving the acquisition proposal of the writ property at a cost of Rs.8.51 crores. On 29th August 2003, the Municipal Corporation passed a
resolution to acquire part of the writ property pursuant to the purchase notice given by the petitioner. On 1st November 2003, the Chief Engineer
(Dev. Plan) of the Municipal Corporation sent a proposal/application to the respondent no.2 for acquisition of the writ property to the State
Government.
8. It is the case of the petitioner that he did not know at the relevant time, either about the letter dated 1st November 2003 addressed by the Chief
Engineer of the Municipal Corporation or about the resolution dated 29th August 2003 passed by the Municipal Corporation. The petitioner was
hopeful of getting the vacant possession. However, he did not get the vacant possession and therefore on 10th November 2003 addressed a letter to
the Municipal Corporation as well as the State Government intimating that the purchase notice dated 12th May 2003 be treated as withdrawn. The
petitioner received a reply from the Municipal Corporation by a letter dated 23rd September 2004 to the letter dated 10th November 2003.
9. It is the case of the petitioner that the Municipal Commissioner informed that the Municipal Corporation had resolved to acquire the writ property
which was the subject matter of the purchase notice and had already made an application to the State Government on 1st November 2003 to initiate
acquisition proceedings. In the said reply dated 23rd September 2004, it was stated that there was no provision of withdrawal of the said purchase
notice.
10. On 22nd July 2004, the State Government issued a declaration under Section 126 of the MRTP Act read with Section 6 of the Land Acquisition
Act seeking to acquire part of the petitioner’s land bearing Cadastral Survey No.90 (Part), admeasuring 1993.59 sq. mtrs.
On 11th December 2004, the petitioner addressed a letter pointing out that the proposal submitted by the Chief Engineer to the State Government was
not in conformity with the Government Resolution dated 14th June 2001 which laid down the guidelines for acquisition under the MRTP Act and the
same required the Acquiring Body to deposit 2/3rd of the estimated compensation which was not done by the Municipal Corporation and thus, there
was no valid acquisition proposal. The petitioner sought a declaration that the writ property be treated as released from the reservation.
11. It is the case of the petitioner that on 7th September 2007, the petitioner made two applications to the respondents under the provisions of Right to
Information Act, 2005 seeking copies of the acquisition proposal submitted by the Municipal Corporation to the State Government as well as a copy of
the Municipal Corporation’s resolution said to have been passed on 29th August 2003. The petitioner received replies to the said two applications
dated 7th September 2007. The petitioner has now learnt about the events which transpired from the date of receipt of the purchase notice till the
issuance of the declaration under Section 126 of the MRTP Act in respect of the writ property for the first time.
12. On 23rd November 2007, the petitioner filed this writ petition. On 14th August 2008, this writ petition was admitted. It is the case of the petitioner
that Writ Petition Nos.307 of 2008, 1069 of 2007 and 2108 of 2007 were filed on similar facts in this Court and have identical points of law. On 28th
February 2008, this Court passed an order in Writ Petition No.307 of 2008 to the effect that issues raised in Writ Petition Nos.307 of 2008, 2108 of
2007 and 2591 of 2007 were identical.
On 13th March 2008, this Court passed an order directing the present Writ Petition and Writ Petition No.307 of 2008 to be listed with all the cases
which involved the interpretation of Section 127 of the MRTP Act.
13. On 9th April 2008, all the Writ Petitions involving the interpretation of Section 127 were taken up for hearing and were disposed off finally by a
judgment dated 12th June 2008. This Writ Petition however, was not listed on board along with the other petitions on 9th April 2008 and thus could not
be disposed off.
14. On 12th June 2008, Writ Petition Nos.1067 of 2007 and 2108 of 2007 were disposed off by a common judgment. It is the case of the petitioner that
the facts involved in these petitions are identical to the facts of this petition. On 12th June 2008, Writ Petition Nos.307 of 2008 and 1080 of 2007 were
also disposed off in view of the judgment dated 9th April 2008. On 12th March 2010, the Special Leave Petition (C) bearing No.8541 of 2010 filed by
the Municipal Corporation came to be dismissed. On 20th July 2010, the Review Petition bearing No.1103 of 2010 filed by the Municipal Corporation
also came to be dismissed.
15. During the pendency of the petition, some time in the year 2015, a draft Development Plan 2034 was published. It is the case of the petitioner that
the writ property was not shown under any reservation. In the year 2016, the Draft Development Plan was once again published inviting objection.
The part of the writ property was shown as being reserved for playground in the said Draft Development Plan. On 5th July 2016, the petitioner had
raised an objection to the said reservation on the writ property. On 23rd July 2016, the petitioner addressed a letter to the Municipal Corporation
contending that the earlier reservation had already lapsed six months after the purchase notice dated 12th May 2003 came to be issued and thus the
writ property could not have been re- reserved under the New Development Plan.
16. By a letter dated 25th July 2016 to the Chief Engineer (DP) of the Municipal Corporation, the petitioner contended that the reservation of the writ
property had lapsed. On 5th October 2017, the petitioner recorded that despite of the interim reliefs granted in this petition on 14th August 2008, some
of the officers of the Corporation entered the writ property for measurements. On 8th May 2018, the State Government sanctioned the Draft
Development Plan, 2034 excluding some modifications. The objections and suggestions were invited in respect of substantial modifications which were
proposed by the State Government in the Draft Development Plan, 2034.
17. In the said Development Plan, 2034, part of the writ property admeasuring 1993.59 sq. mtrs. had been reserved for garden/park. On 1st June
2018, a letter was addressed by the petitioner to the respondents informing them about the interim reliefs granted by this Court in this petition and the
fact that the matter was sub-judice. On 28th April 2019, the petitioner issued a legal notice to the Municipal Corporation regarding the re-reservation
of the writ property. On 25th April 2019, the Municipal Corporation informed the petitioner that the request for deletion of the reservation on the writ
property cannot be honoured as the matter was sub-judice. On 26th June 2019, the petitioner filed a Chamber Summons. The said chamber summons
is still pending.
18. Mr.Ardeshir, learned counsel for the petitioner invited our attention to various documents annexed to the petition and also to the affidavit-in-reply
filed by the parties. Learned counsel submitted that the petitioner had already issued a purchase notice to the Principal Secretary, Urban Development
Department, Municipal Corporation and the Municipal Commissioner on 12th May 2003. The so called steps were taken by the Municipal
Commissioner on 27th June 2003 by passing a Resolution of the Improvement Committee on 19th August 2003 and the Resolution passed by the
Municipal Corporation to acquire the writ property on 29th August 2003 and the application made by the Chief Engineer, Development Plan to the
State Government for acquisition of the writ property were not the steps contemplated under Sections 126 and 127 of the MRTP Act.
19. It is submitted by the learned counsel that admittedly the Notification under Section 6 along with a Declaration under Section 126(4) read with
Section 126(2) of the MRTP Act and Section 6 of the Land Acquisition Act, 1894 was issued only on 22nd July 2004 i.e. after expiry of the period of
six months from the date of service of purchase notice dated 12th May 2003 and thus the reservation of the writ property as reserved on 11th October
1992 had lapsed.
20. It is submitted by the learned counsel that though at one stage, the petitioner was under the legal advise and had addressed a letter dated 10th
November 2003 to withdraw the said purchase notice in view of the petitioner not having received vacant possession of some of the structures. He
submitted that in any event, the Municipal Corporation vide reply dated 23rd September 2004 i.e. after more than 10 months of the notice dated 10th
November 2003 opposed the said letter of the petitioner to withdraw the said purchase notice on the ground that there was no provision for withdrawal
of such purchase notice. He submitted that on the contrary, by the said letter dated 11th December 2004, the Municipal Corporation had relied upon
various steps taken by the Municipal Corporation as per the provisions of Section 126(i)(c) and had contended that the respondents having taken steps
to acquire the said land in furtherance of the purchase notice issued by the petitioner, the petitioner shall hand over the possession of the writ land
reserved for playground in lieu of TDR.
21. Learned counsel for the petitioner invited our attention to the affidavit-in-reply filed by the Municipal Corporation on 8th February 2008 i.e. much
after the judgment of the Supreme Court in case of Girnar Traders Vs. State of Maharashtra, 2007 (7) SCC 555 came to be delivered by the Supreme
Court interpreting Section 127 of the MRTP Act. He submitted that in the said affidavit dated 8th February 2008, it was contended by the Municipal
Corporation itself that pursuant to the purchase notice issued by the petitioner, the sanction of the Improvement Committee to acquire the land
reserved for playground was obtained on
19th August 2003. Various steps were taken according to the Municipal Corporation in furtherance of the said purchase notice. In the said affidavit-
in-reply, the Municipal Corporation also strongly placed reliance on the letter dated 23rd September 2004 contending that the purchase notice could not
be withdrawn by the petitioner and if the petitioner was willing to hand over the vacant possession of the writ property in lieu of TDR, necessary
action would be initiated accordingly.
22. Learned counsel also invited our attention to the averments made in paragraph 5 (c) and (d) of the affidavit-in-reply filed by the Municipal
Corporation on 8th February 2008 and submitted that it is the case of the Municipal Corporation itself that the Notification under Section 6 read with
Section 126 (2) (4) of the MRTP Act was issued by the Municipal Corporation pursuant to the purchase notice thereby appointing the Special Land
Acquisition Officer to perform the functions in respect of the acquisition proceedings. The Municipal Corporation had already shown eagerness to
acquire the said land by completing the formalities in its purview and by promptly depositing the 2/3rd amount of the land value amount to Rs.5.23
crores so as to make the play ground available to common public in the vicinity at earliest. He submitted that it is further contended in the said affidavit
that as the acquisition proceedings have already reached a considerable stage, this case does not fall within the ambit of the order of the Supreme
Court in case of Girnar Traders (supra).
23. Learned counsel for the petitioner invited our attention to the further affidavit filed by his client on 3rd June 2008 relying upon the judgment of the
Supreme Court in case of Girnar Traders (supra). He submitted that the petitioner had clarified in the said affidavit as to what circumstances, the
petitioner had addressed a letter dated 10th November 2003 thereby attempting to withdraw the purchase notice issued on 12th May 2003.
24. Learned counsel for the petitioner also invited our attention to the affidavit-in-reply dated 4th October 2022 filed by the Municipal Corporation and
submitted that the stand now taken by the Municipal Corporation, after more than 18 years of the affidavit already filed, is contrary to the stand taken
in the earlier affidavit dated 8th February 2008. He submitted that the Corporation cannot be allowed to take a plea that the purchase notice having
been withdrawn by the petitioner, the Corporation was entitled to proceed with the acquisition proceedings on its own independently.
25. Learned counsel for the petitioner placed reliance on the judgment of the Supreme Court in case of Girnar Traders (supra), judgment of this Court
in case of Trilok Singh Pahlajsingh Rajpal & Anr. Vs. Municipal Corporation for Gr. Mumbai & Ors., 2022 SCC OnLine Bom 2347, judgment of this
Court pronounced on 18th October 2022 in case of Dr.Ramrao Sopanrao Gondkar & Anr.Vs. Nashik Municipal Corporation for Gr. Mumbai and Ors.
in Writ Petition No.6331 of 2008 and in particular paragraphs 6, 8, 11, 13 and 14 thereof and the judgment of this Court delivered on 20th October
2022 in case of Arvind Kashinath Dadarkar & Ors. Vs. Municipal Corporation of Gr. Mumbai & Ors. in Writ Petition No.411 of 2013.
26. It is submitted by the learned counsel that the other writ petitions referred to aforesaid admittedly had identical facts and points involved. This
Court had observed that all the matters were identical. He submitted that this writ petition however, did not appear on board when the other batch of
the petitions came to be allowed by this Court. He submitted that as the judgment which is passed by this Court in Writ Petition No.1067 of 2007 in
case of Suriya Akbarali Jetha & Ors. Vs. Mumbai Municipal Corporation of Gr. Mumbai and the judgment of this Court delivered on 12th June 2008
in case of Shardaben Jashbhai Patel & Anr. Vs. State of Maharashtra & Ors. in Writ Petition No.1080 of 2007 is followed by this Court, those
judgments were applicable to the facts of this case. He submitted that the Special Leave Petition against the judgment of this Court is already
dismissed by the Supreme Court.
27. Mr.Sakhare, learned senior counsel for the Municipal Corporation, on the other hand, invited our attention to some of the correspondence referred
to the aforesaid and submitted that though the petitioner had issued a purchase notice on 12th May 2003, the fact remains that before the expiry of six
months from the date of issuance of the said notice, the petitioner vide letter dated 10th November 2003 had withdrawn the said purchase notice. He
submitted that as a result of the withdrawal of the said purchase notice before expiry of the period of six months granted to the Municipal Corporation
to take steps, the said purchase notice ceased to have effect.
28. It is submitted that the purchase notice was withdrawn by the petitioner unconditionally and since the date of withdrawal is not in existence, the
Municipal Corporation could either act upon the said purchase notice or to ignore it in these circumstances. The purchase notice had already become
effective from the date of service of the said purchase notice. There is no provision under the MRTP Act permitting the owner of the land to
withdraw the purchase notice once having been served to the planning authority. The Municipal Corporation was thus not required to take any steps
within a period of six months from the date of service of the said purchase notice.
29. Learned senior counsel for the Municipal Corporation relied upon the averments made by the petitioner in the writ petition and submitted that the
petitioner has not explained the delay in filing the petition. The petitioner cannot be allowed to explain the delay for the first time in the affidavit-in-
rejoinder.
30. It is submitted that under DCPR, 2034, the writ property is re-reserved for garden purpose. He invited our attention to the prayers of the writ
petition and submitted that there is no challenge to the re- reservation dated 8th May 2018. Though the petitioner has filed a chamber summons inter
alia praying for an amendment, the amendment has not been permitted till date by this Court in the said chamber summons. Learned senior counsel
placed reliance on the judgment of the Supreme Court in case of Municipal Corporation Vs. Hiraman S. Deorukhar & Ors., (2019) 14 SCC 411 and
the judgment of this Court in case of Satish Prakash Rohra & Anr. Vs. Municipal Corporation of Gr. Mumbai & Ors., 2018 SCC OnLine Bom 2608 in
support of the submission that the Supreme Court and this Court have permitted the acquisition of the land even after holding that the reservation had
lapsed in the larger public interest.
31. It is submitted that the direction issued by the Supreme Court and this Court in these petitions also considered public interest. It is submitted that
even if the understanding of the Municipal Corporation was erroneous and contrary to law, the same would not be binding upon the Municipal
Corporation. The Municipal Corporation is entitled to adopt steps for the acquisition of the land even if there was no purchase notice under Section
127 of the MRTP Act. The Court has to consider the effect of the petitioner having withdrawn the purchase notice and not the conduct of the
respondents. There is no bar from acquiring the land of the petitioner. The reply of the Municipal Corporation that the purchase notice cannot be
withdrawn would not revive the purchase notice issued by the petitioner.
32. In so far as the other judgments relied upon by the petitioner in case of Suriya Akbarali Jetha & Ors. (supra) and in case of Shardaben Jashbhai
Patel & Anr. (supra) along with other companion matters, it is submitted the in those batch of the petitions, there was no withdrawal of the purchase
notice by the petitioner therein and thus the judgments in those matters are clearly distinguishable on the facts of this case.
33. Mr.Ardeshir, learned counsel for the petitioner in his rejoinder arguments invited our attention to the averments made by the learned counsel in the
two affidavits filed in this writ petition and submitted that none of the steps were taken under Section 127 and Section 126 of the MRTP Act. All such
steps were admittedly taken in furtherance of the purchase notice issued by the petitioner not only before the expiry of the period of six months but
even thereafter. The Municipal Corporation thus cannot be allowed to now contend that the Municipal Corporation has initiated the acquisition
proceedings independently and not in furtherance of the purchase notice issued by the petitioner.
34. It is submitted that the respondents have contended in their affidavit that their case does not fall within the ambit of the judgment of the Supreme
Court in case of Girnar Traders (supra). In fact, the Municipal Corporation proceeded on the premise that the letter of the petitioner seeking to
withdraw the purchase notice did not have any effect of any nature whatsoever. Consequently, the judgment of this Court in case of Trilok Singh
Pahlajsingh Rajpal & Anr. (supra) clearly applies to the facts of this case.
REASONS AND CONCLUSIONS :-
35. The questions that arise for the consideration of this Court are (a) whether the purchase notice issued under section 127 of the MRTP Act having
been issued by the owner of the land and received by the Planning Authority can be withdrawn in absence of any provisions approving such
withdrawal under the provisions of MRTP Act or not ?
(b) What is the effect of the Planning Authority refusing to accept the withdrawal of the purchase notice issued by the owner of the land ?
36. It is not in dispute that the land of the petitioner was reserved under the development plan for playground on 11th October, 1992. The 10 years
period expired on 10th October, 2002. On 12th May, 2003, the petitioner had issued a purchase notice under section 127 to the Principal Secretary of
Development of the Municipal Corporation and Commissioner. Before expiry of six months from the date of receipt of the said notice, the Municipal
Commissioner had addressed a letter to the Improvement Committee on 27th June 2003 recommending the acquisition of the plot of the petitioner.
37. The Improvement Committee thereafter passed a resolution on 19th August, 2003 approving acquisition of the proposal of the Commissioner at a
cost of Rs.8.51 crores in respect of the writ property.
On 29th August, 2003, the Municipal Corporation passed a resolution to acquire the plot of the petitioner pursuant to the said purchase notice dated
12th May, 2003. It is not in dispute that on 1st November, 2003, the Chief Engineer, Development Plan made an application to the State Government
for acquiring the writ property. In our view, none of these steps taken by the Municipal Corporation would amount to steps for the acquisition of the
writ property as contemplated under section 127 of the MRTP Act.
38. A perusal of the letter dated 23rd September, 2004 in response to the letter from the petitioner dated 10th November, 2003 seeking withdrawal of
the purchase notice indicates that the Municipal Corporation had taken a stand that there is no provision of withdrawal of purchase notice and that
various steps had already been taken by the Municipal Corporation to acquire the writ property.
39. A perusal of the record clearly indicates that both the parties thereafter proceeded on the premise that the purchase notice was not withdrawn by
the petitioner. The Municipal Corporation had taken subsequent steps which were not contemplated as a step for acquisition under section 127 of the
MRTP Act but they proceeded on the premise that the purchase notice was valid and was subsisting on the date of the said letter dated 23rd
September, 2004 and even thereafter. Admittedly a declaration under section 6 of the Land Acquisition Act came to be issued by the State
Government to acquire the writ property of the petitioner only on 22nd July, 2004.
40. In our view, only the said declaration under section 6 of the Land Acquisition Act within the prescribed period after the purchase notice would
amount to taking steps for the acquisition of the writ property and not any other steps taken prior thereto. The said declaration under section 6 and the
subsequent correspondence placed on record by the parties would also clearly indicate that no steps were taken by the planning authority in response
to the purchase notice issued by the petitioner till the expiry of six months (being the prescribed period at the relevant time) of the receipt of the said
purchase notice.
41. Supreme Court in case of Girnar Traders (supra) and thereafter in a catena of decisions has taken a view that the notification under section 6 of
the Land Acquisition Act amounts to taking steps in acquisition under section 127 of the MRTP Act and in the absence of any such notification, no
other steps would amount to steps and consequently the reservation in respect of such property would stand lapsed as contemplated under section 127
of the MRTP Act.
42. This Court in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra) after adverting to the judgment of Supreme Court in case of Girnar Traders
(supra) and catena of decisions including the judgment in case of Godrej and Boyce Manufacturing Company Limited V/s State of Maharashtra and
others, (2015) 11 SCC 554 has held that the so called various steps taken by the planning authority which were not the steps as contemplated under
the provisions of sections 126 and 127 of the MRTP Act and accordingly declared the reservation as lapsed. This Court in the said judgment held that
unless and until the section 6 declaration (Land Acquisition Act, 1894) / section 19 declaration (The Right To Fair Compensation and Transparency In
Land Acquisition, Rehabilitation and Resettlement Act, 2013) is issued, it cannot be said that the steps for acquisition have commenced. The principles
laid down by the Supreme Court in case of Girnar Traders (supra) and in the catena of decisions which are followed by this Court in case of Trilok
Singh Pahlajsingh Rajpal & Anr. (supra) would apply to the facts of this case.
43. In the said judgment in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra) this Court also followed the principles laid down by this Court in
case of Anil Dattatraya Girme and others versus State of Maharashtra and others, (2020) 3 Bom CR 353 in which it was held that the land once de-
reserved from the revised development plan by operation of law cannot be reserved again, in the second revised plan with some variation in purpose.
This Court also adverted to the judgment in case of Bombay Salesian Society, through Secretary, Fr. Manuel Murzullo versus State of Maharashtra &
Ors, (2020) 1 Bom CR 235 in which it was held that if no steps are taken within the time prescribed to acquire the land which is the subject matter of
the notice, the reservation, allotment or designation shall be deemed to have lapsed and the land should be deemed to be released from reservation,
allotment or designation and shall become available to the owner for the purpose of development.
44. This Court also distinguished the judgment delivered by the Supreme Court in case of Hiraman Sitaram Deorukhkar on 24th August, 2017 in Civil
Appeal No.11258 of 2017 which is relied upon by Mr.Sakhare, learned senior counsel for the Municipal Corporation and held that the directions issued
by the Supreme Court in the said judgment were in exercise of powers under Article 142 of the Constitution of India and were not a precedent.
45. Since the Municipal Corporation rightly proceeded on the premise that there was no provision in the MRTP Act for the withdrawal of the
purchase notice, the principles laid down by the Supreme Court in case of Girnar Traders (supra) and above referred judgment would squarely apply
to the facts of this case. We are bound by the principles of law laid down by the Supreme Court in the said judgment.
46. Insofar as the issue of delay raised by Mr.Sakhare, learned senior counsel for the Municipal Corporation is concerned, in our view there is no
unexplained delay in the facts of this case. Be that as it may, such delay is considered by this Court in case of Apurva Natvar Parikh & Co. Private
Limited versus State of Maharashtra & Ors. Writ Petition No. 203 of 2014. The principles laid down by this Court in the said judgment would apply to
the facts of this case. This Court held that whether there is a gross delay or not depends on the facts and circumstances of each case and, therefore,
each case will have to be examined on the facts because there cannot be a straight-jacket formula for deciding whether the Court should exercise its
discretion or not.
47. The Division Bench of this Court in case of Dr.Ramrao Sopanrao Gondkar & Anr.(supra) after adverting to the judgment of Supreme Court in
case of Girnar Traders (supra) and several other judgments has held that the reservation of the writ land stands lapsed upon the expiry of the
prescribed period from the date of service of the purchase notice under section 127 of the MRTP Act if no steps contemplated under section 127 are
taken. This Court also adverted to the judgment of this Court in case of Trilok Singh Pahlajsingh Rajpal & Anr. (supra). The said judgment accordingly
held that the mere sending of a draft award to the commissioner cannot be construed as steps taken to prevent or revive lapsing. In the facts of this
case, since time to take steps for acquiring the land had already expired and reservation had already stood lapsed, such reservation cannot be revived
by issuing a notification under section 6 of the Land Acquisition Act or by re-reserving the same reserved land for the same purpose or different
purpose, after the reservation has lapsed. The principles of law laid down by this Court in case of Dr.Ramrao Sopanrao Gondkar & Anr.(supra) would
apply to the facts of this case.
48. This Court in case of Arvind Kashinath Dadarkar & Ors. (supra) also considered the judgment of Supreme Court in case of Godrej and Boyce
Manufacturing Company Limited vs. State of Maharashtra in Civil Appeal No. 1746 of 2007 with connected matters and other judgments and rejected
the plea raised by the Municipal Corporation about delay on the part of the petitioner to claim TDR on the basis of the interpretation of the law by
judgment of Supreme Court in case of Godrej and Boyce Manufacturing Company Limited (supra). The Supreme Court in case of Godrej and Boyce
Manufacturing Company Limited (supra) had held that the approach of a person/party immediately and/or after coming to know about the judgment of
the Supreme Court cannot be stated to be guilty of any laches to claim/reliefs so prayed and/or is barred by the limitation. The principles laid down by
this Court in case of Arvind Kashinath Dadarkar & Ors. (supra) apply to the facts of this case. We are respectfully bound by the said judgment. We
do not propose to take any different view in this matter.
49. In so far as the judgment of the Supreme Court in case of Municipal Corporation Vs. Hiraman S. Deorukhar (supra) relied upon by Mr.Sakhare,
learned senior counsel for the Municipal Corporation in support of the submission that the Supreme Court has permitted the acquisition of land even
after holding that the said reservation is lapsed in larger public interest is concerned, on perusal of the said judgment, it is clear that Supreme Court has
passed the said order while exercising its powers under Article 142 of the Constitution of India. The said judgment thus cannot be relied upon by the
respondents as a precedent in the facts of this case or otherwise. Similar view is also taken by this Court in the case of Satish Prakash Rohra & Anr.
Vs. Municipal Corporation of Gr. Mumbai & Ors. (supra).
50. Division Bench of this Court in the case of Satish Prakash Rohra & Anr. Vs. Municipal Corporation of Gr. Mumbai & Ors. (supra), clearly held
that the Supreme Court in case of Municipal Corporation Vs. Hiraman S. Deorukhar (supra) has exercised its powers under Article 142 of the
Constitution of India. This Court has held that the steps taken for acquisition were not under Section 126 of the MRTP Act. Hence, the reservation for
garden had lapsed. The facts before this Court are totally different. The said judgment in case of Satish Prakash Rohra & Anr. Vs. Municipal
Corporation of Gr. Mumbai & Ors. (supra) thus would not assist the case of the petitioner and is clearly
51. In so far as the judgment of this Court in case of Suriya Akbarali Jetha & Ors. Vs. Mumbai Municipal Corporation of Gr. Mumbai (supra) and the
judgment of this Court in case of Shardaben Jashbhai Patel & Anr. Vs. State of Maharashtra & Ors. (supra) relied upon by Mr.Ardeshir, the learned
counsel for the petitioner are concerned, it is correct that in those two matters, there were no withdrawal of purchase notice by the petitioner therein.
However, since this Court is of the view that both the parties had proceeded on the premise that the purchase notice continued to be valid even after
the withdrawal of the said letter by the petitioner, these two judgments relied upon by the learned counsel for the petitioner would apply to the facts of
this case. In our view, the petitioner has thus made out a case for reliefs as prayed.
52. We accordingly pass the following order :-
(i) Writ petition is allowed in terms of prayer clauses (a) to (c).
(ii) The respondent no.1 shall issue a notification under Section 127(2) within six months from today declaring that the reservation in respect of the
writ property stands lapsed and that the said writ property would be available to the petitioner for the purpose of development as prescribed in law.
(iii) Rule is made absolute in aforesaid terms. No order as to costs. Parties to act on the authenticated copy of this order.
