{"id":51640,"date":"2002-03-28T00:00:00","date_gmt":"2002-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-dina-sohrab-hakim-and-dr-vs-the-state-of-maharashtra-having-on-28-march-2002"},"modified":"2017-08-22T23:19:40","modified_gmt":"2017-08-22T17:49:40","slug":"dr-dina-sohrab-hakim-and-dr-vs-the-state-of-maharashtra-having-on-28-march-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-dina-sohrab-hakim-and-dr-vs-the-state-of-maharashtra-having-on-28-march-2002","title":{"rendered":"Dr. Dina Sohrab Hakim And Dr. … vs The State Of Maharashtra Having … on 28 March, 2002"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dr. Dina Sohrab Hakim And Dr. … vs The State Of Maharashtra Having … on 28 March, 2002<\/div>\n
Equivalent citations: AIR 2002 Bom 387, 2002 (6) BomCR 277, (2002) 3 BOMLR 646, 2002 (2) MhLj 851<\/div>\n
Author: R Lodha<\/div>\n
Bench: R Lodha, S Vazifdar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
R.M. Lodha, J.<\/p>\n
 1. Heard Mrs.M.V.Shetty, learned Counsel for
\nPetitioners and Ms.Savla, learned Counsel for
\nRespondent No.2 viz. Municipal Corporation of
\nGr.Bombay.\n<\/p>\n
 2.At the outset, we are constrained to
\nobserve that the first Respondent viz. State of
\nMaharashtra has not chosen to file any counter or
\nreturn in opposition to the Writ Petition.
\nShockingly, nobody has appeared for State
\nGovernment to argue the matter on their behalf.
\nIn the circumstances, we heard the learned Counsel
\nfor Petitioners and learned Counsel for second
\nRespondent.\n<\/p>\n
 3.The Petitionerslaimed to be owners of a
\nplot of land admeasuring 3646.23 sq.mtrs. known
\nas Hakimwadi situate at the junction of Falkland
\nRoad and Eruchshaw Road, bearing Cadastral Survey
\nNo.176, Tardeo Division, Bombay, particulars
\nwhereof are given in Exhibit-A. The said property
\nwas reserved for a Municipal Recreation ground in
\nthe “D” Ward Development Plan sanctioned by the
\nState Government under Government Notification,
\nUrban Development, Public Health and Housing
\nDepartment No. TPB-4366\/78109 dated 6-1-67.
\nAccording to Petitioners, the proceedings for
\nacquisition of the said property were not
\ncommenced for more than 10 years. The Petitioners
\nthen served a notice dated 1st July, 1977 under
\nSection 127 of the Maharashtra Regional and Town
\nPlanning Act, 1966 ( for short “the MRTP Act”) so
\nthat Planning Authority could either acquire the
\nsaid property or release the same from
\nreservation. It appears that correspondence
\nensued between the Petitioners and the authorities
\nof the Municipal Corporation of Greater Bombay
\n(Planning Authority) thereafter and ultimately on
\n7th April, 1978 the first Respondent in exercise
\nof the powers conferred by sub-section (4) read
\nwith sub-section (2) of Section 126 of the MRTP
\nAct read with Section 6 of the Land Acquisition
\nAct, 1894 declared that the property in question
\nis needed for public purpose of recreation ground.
\nThe declaration under Section 6 was published in
\nthe Government Gazette on 20th April, 1978. It is
\naverred by the Petitioners in the Writ Petition
\nthat though the Petitioners submitted their
\nstatement of claim dated 11th April, 1979, no
\nAward was passed and the Land Acquisition Officer
\ninformed the Petitioners vide letter dated 19th
\nJuly, 1980 that the acquisition proceedings for
\nthe land in question were to be kept in abeyance.
\nThe Petitioners claim to have filed a Writ
\nPetition being Writ Petition No. 1420 of 1980 in
\nthis Court for a direction to the concerned
\nauthorities to publish the Award and pay
\ncompensation to the Petitioners. This Court by
\norder dated 28-1-1981 directed the Land
\nAcquisition Officer to declare the Award and
\ndetermine the compensation in respect of the
\nproperty in question within six months therefrom.
\nThereafter it appears that several tenants of the
\nproperty in question formed an Association styled
\nDr.Hakimwadi Tenants Association and got it
\nregistered under the Societies Registration Act
\nand filed Writ Petition No.799 of 1981 for
\nquashing the proceedings for acquisition commenced
\nby the Planning Authority and the consequent
\nnotification issued by first Respondent on the
\nground that reservation of the land had lapsed.
\nThe learned single Judge of this Court by an order
\ndated 21st September, 1983 quashed and set aside
\nthe Notification issued by first Respondent under
\nSection 6 of the Land Acquisition Act and all
\nsteps subsequent to the issuance of the said
\nNotification . The learned single Judge also
\ndeclared that the Planning Authority and the State
\nGovernment are not entitled to acquire the
\nproperty in question in exercise of the powers
\nunder Section 126 of the MRTP Act. A letters
\nPatent Appeal was filed by Respondent No.2 before
\na Division Bench of this Court but without
\nsuccess. The second Respondent also challenged
\nthe order of the learned single Judge and that of
\nDivision Bench before the Apex Court in Civil
\nAppeal No. 4139 of 1986. The said Appeal was
\ndismissed by the Apex Court on 24-11-1987. It
\nappears that during the interregnum, Bombay
\nMunicipal Corporation ( second Respondent)
\nfinalised the Draft Revised Development Plan of
\n“D” Ward but in view of the judgment of the Apex
\nCourt, the reservation of property in question was
\ndeleted and Draft Revised Development Plan of “D”
\nWard was forwarded to the State Government. The
\nState Government upon receipt of the Draft Revised
\nDevelopment Plan of “D” Ward, made modification
\nthereon so far as property in question is
\nconcerned and reserved the property in question
\nfor public purpose of recreation ground. It is
\nthis modification made by the State Government in
\nDraft Revised Development Plan of “D” Ward under
\nSection 31(1) of the MRTP Act which is under
\nchallenge before us in this Writ Petition.\n<\/p>\n
 4.Principally the challenge to the said
\nmodification of the Draft Revised Development Plan
\nof “D”Ward is on the ground that no notice as
\nrequired under second proviso to Section 31 (1) of
\nthe MRTP Act was published by the first Respondent
\ninviting objections and suggestions to the said
\nReservation and,therefore, such modification is
\nbad-in-law.\n<\/p>\n
 5. As we have already noted above, the facts
\nstated in the Writ Petition have not been
\ntraversed. Neither the first Respondent nor the
\nsecond Respondent has chosen to file any counter
\nor return to oppose the Writ Petition. It is thus
\nclear that in the Draft Revised Development Plan
\nof “D” Ward forwarded by the Planning Authority
\ni.e. Respondent No.2 to the State Government (
\nRespondent No.1) the property in question was not
\nreserved for any public purpose. The State
\nGovernment, however, appears to have not agreed
\nwith the view of the Planning Authority and
\nmodified the Draft Revised Development Plan of “D”
\nWard by reserving the property in question for
\nrecreation ground. The question that arises for
\nreconsideration is whether such modification in
\nthe Draft Revised Development Plan of “D” Ward
\nmade by the State Government is in accordance with
\nlaw.\n<\/p>\n
 6. We have already made reference to the
\nWrit Petition filed by the tenants of the property
\nin question in the name of Dr.Hakimwadi Tenants
\nAssociation for quashing the proceedings for
\nacquisition of the property in question commenced
\nby the Planning Authority and the consequent
\nnotification issued by the first Respondent. The
\nmatter ultimately went to the Supreme Court and
\nthe Judgment of the Apex Court is . In paragraph 7 of the report,
\nthe Apex Court ruled thus:-\n<\/p>\n
 “7. According to the plain reading of
\nS.127 of the Act, it is manifest that the
\nquestion whether the reservation has
\nlapsed due to the failure of the Planning
\nAuthority to take any steps within a
\nperiod of six months of the date of
\nservice of the notice of purchase as
\nstipulated by S.127, is a mixed question
\nof fact and law. It would therefore be
\ndifficult, if not well-high impossible,
\nto lay down a rule of universal
\napplication. It cannot be posited that
\nthe period of six months would
\nnecessarily begin to run from the date of
\nservice of a purchase notice under S.127
\nof the Act. The condition prerequisite
\nfor the running of time under S.127 of
\nthe service of a valid purchase notice.
\nIt is needless to stress that the
\nCorporation must prima facie be satisfied
\nthat the notice served was by the owner
\nof the affected land or any person
\ninterested in the land. But, at the same
\ntime, S.127 of the Act does not
\ncontemplate an investigation into title
\nby the officers of the Planning
\nAuthority, nor can the Officers prevent
\nthe running of time if there is a valid
\nnotice. Viewed in that perspective, the
\nHigh Court rightly held that the
\nExecutive Engineer of the Municipal
\nCorporation was not justified in
\naddressing the letter Dt.July 28, 1977 by
\nwhich he required Respondents 4-7, the
\ntrustees, to furnish information
\nregarding their title and ownership, and
\nalso to furnish particulars of the
\ntenants , the nature and user of the
\ntenements and the total areas occupied by
\nthem at present. The Corporation had the
\nrequisite information in their records.
\nThe High Court was therefore right in
\nreaching the conclusion that it did. In
\nthe present case, the Planning Authority
\nwas the Municipal Corporation of Greater
\nBombay. It cannot be doubted that the
\nMunicipal Corporation has access to all
\nland records including the records
\npertaining to cadastral survey No. 176<\/span>
\nof Tardeo. We are inclined to the view
\nthat the aforesaid letter dt. July 28,
\n1977 addressed by the Executive Engineer
\nwas just an attempt to prevent the
\nrunning of time and was of little or no
\nconsequence. As was rightly pointed out
\nby respondents 4-7 in their reply
\ndt.Aug.3, 1977, there was no question of
\nthe period of six months being reckoned
\nfrom the date of the receipt from them of
\nthe information requisitioned. The
\nMunicipal Corporation had been assessing
\nthe trust properties to property tax and
\nissuing periodic bills and receipts
\ntherefor and obviously could not question
\nthe title or ownership of the trust.We
\nare informed that the building being
\nsituate on Falkland Road, the occupants
\nare mostly dancing girls and this is in
\nthe knowledge of the Corporation
\nauthorities. The rateable value of each
\ntenement would also be known by an
\ninspection of the assessment registers.
\nWe must accordingly uphold the finding
\narrived at by the High Court that the
\nappellant having failed to take any
\nsteps, namely, of making an application
\nto the State Government for acquiring the
\nland under the Land Acquisition Act
\nwithin a period of six months from the
\ndate of service of the purchase notice,
\nthe impugned notification issued by the
\nState Government under S.6 Land
\nAcquisition Act, making the requisite
\ndeclaration that such land was required
\nfor a public purpose i.e. for a
\nrecreation ground was invalid, null and
\nvoid.”\n<\/p>\n
 Then in paragraph 10 the Apex Court ruled thus:
\n  ” 10. Another safeguard provided is the
\none under S.127 of the Act. It cannot be
\nlaid down as an abstract proposition that
\nthe period of six months would always
\nbegin to run from the date of service of
\nnotice. The Corporation is entitled to
\nbe satisfied that the purchase notice
\nunder S.127 of the Act has been served by
\nthe owner or any person interested in the
\nland. If there is no such notice by the
\nowner or any person, there is no question
\nof the reservation, allotment or
\ndesignation of the land under a
\ndevelopment plan of having lapsed. It a
\nfortiorari follows that in the absence of
\na valid notice under S.127, there is no
\nquestion of the land becoming available
\nto the owner for the purpose of
\ndevelopment or otherwise. In the present
\ncase, these considerations do not arise.
\nWe must hold in agreement with the High
\nCourt that the purchase notice dt.July 1,
\n1977 served by Respondents 4-7 was a
\nvalid notice and therefore the failure of
\nthe appellant to take any steps for the
\nacquisition of the land within the period
\nof six months therefrom, the reservation
\nof the land in the Development Plan for a
\nrecreation ground lapsed and consequently
\nthe impugned notification dated April 7,
\n1978 under S.6, Land Acquisition Act,
\nissued by the State Government must be
\nstruck down as a nullity.\n<\/p>\n
 7. Ultimately overruling all the grounds set
\nup by the Appellant therein viz. Municipal
\nCorporation of Greater Bombay, the Apex Court
\nmaintained the order passed by the learned single
\nJudge and affirmed in Letters Patent Appeal by the
\nDivision Bench. The effect of the judgment of the
\nApex Court was that the reservation of property in
\nquestion for recreation ground in Development Plan
\nhad lapsed. This related to the Development Plan
\nof the year 1967. In the interregnum before the
\nmatter was decided by the Apex Court, Respondent
\nNo.2 finalized the Draft Revised Development Plan
\nof “D” Ward. However, after the judgment of the
\nApex Court, the Planning Authority i.e.
\nRespondent No.2 deleted the reservation of
\nproperty in question for recreation ground and
\nforwarded the Draft Revised Development Plan to
\nthe State Government under Section 30 of the MRTP
\nAct. Section 31 of the MRTP Act provides the
\nprocedure for sanction to Draft Development Plan
\nwhich reads thus:\n<\/p>\n
 ” 31. Sanction to draft Development
\nPlan. : (1) Subject to the provisions of
\nthis Section, and not later than one
\nyear from the date of receipt of such
\nplan from the Planning Authority, or as
\nthe case may be, from the said Officer,
\nthe State Government may, after
\nconsulting the Director of Town Planning
\nby notification in the Official Gazette
\nsanction the draft Development plan
\nsubmitted to it for the whole area, or
\nseparately for any part thereof, either
\nwithout modification, or subject to such
\nmodification as it may consider proper or
\nreturn the draft development plan to the
\nPlanning Authority or as the case may be,
\nthe sa id Officer for modifying the plans
\nas it may direct or refuse to accord
\nsanction and direct the Planning
\nAuthority or the said Officer to prepare
\na fresh Development Plan.\n<\/p>\n
Provided that, the State Government
\nay, if it thinks fit, whether the said
\nperiod has expired or not, extend from
\ntime to time, by a notification in the
\nOfficial Gazette, the period for
\nsanctioning the draft development plan or
\nrefusing to accord sanction thereto, by
\nsuch further period as may be specified
\nin the notification.\n<\/p>\n
 Provided further that, where the
\nmodifications proposed to be made by the
\nState Government are of a substantial
\nnature, the State Government shall
\npublish a notice in the Official Gazette
\nand also in local newspapers inviting
\nobjection and suggestions from any person
\nin respect of the proposed modifications
\nwithin a period of sixty days, from the
\ndate of such notice.\n<\/p>\n
 (2)The State Government may appoint an
\nofficer of rank not below that of a
\nClass-I Officer and direct him to hear
\nany such person in respect of such
\nobjection and suggestions and submit his
\nreport thereon to the State Government.\n<\/p>\n
 (3) The State Government shall before
\naccording sanction to the draft
\nDevelopment Plan take into consideration
\nsuch objections and suggestions and the
\nreport of the officer.\n<\/p>\n
 (4)The State Government shall fix in
\nthe notification under sub-section (1) a
\ndate not earlier than one month from its
\npublication on which the final
\nDevelopment plan shall come into
\noperation.\n<\/p>\n
 (f)If a Development Plan contains any
\nproposal for the designation of any land
\nfor a purpose specified in clauses (b)
\nand (c) of Section 22, and if such land
\ndoes not vest in the Planning Authority,
\nthe State Government shall not include
\nthat in the Development Plan, unless it
\nis satisfied that the Planning Authority
\nwill be able to acquire such land by
\nprivate agreement or compulsory
\nacquisition not later than ten years from
\nthe date on which the Development plan
\ncomes into operation.\n<\/p>\n
 (6)A Development plan which has come
\ninto operation shall be called the “final
\nDevelopment Plan” and shall, subject to
\nthe provisions of this Act, be binding on
\nthe Planning Authority.”\n<\/p>\n
 8. We are mainly concerned with compliance
\nof second proviso to sub-section (1) of Section 31
\nof the MRTP Act inasmuch as the question posed by
\nPetitioners before us is that since the Planning
\nAuthority in the Draft Revised Development Plan
\nsubmitted to the State Government had not reserved
\nthe property in question for recreation ground,
\nwhether the State Government upon modification of
\nthe Draft Revised Development Plan submitted by
\nthe Planning Authority which was of a substantial
\nnature was required to publish notice in the
\nOfficial Gazette and local newspapers inviting
\nobjections and suggestions.\n<\/p>\n
 9. We have no hesitation in holding that the
\nState Government by reserving the property in
\nquestion for recreation ground which was not
\nproposed by Planning Authority has definitely made
\nmodification in the Draft Revised Development Plan
\nof a substantial nature. As a matter of fact,
\nMs.Savla, learned Counsel appearing for Respondent
\nNo.2 could not seriously refute this position. If
\nthe State Government proposed to make
\nmodifications in the Draft Revised Development
\nPlan of “D” Ward submitted by the Planning
\nAuthority and when the said modification was of a
\nsubstantial nature, it was incumbent upon the
\nState Government to public a notice in the
\nOfficial Gazette and also in local newspapers
\ninviting objections and suggestions from any
\nperson in respect of proposed modification within
\na period of 60 days from the date of such notice
\nand having not done that, the procedure prescribed
\nin second proviso to sub-section (1) of Section
\n31, which is mandatory in character, has not been
\nadhered to and that vitiates the modification made
\nby the State Government in the Draft Revised
\nDevelopment Plan of “D” Ward whereby the property
\nin question has been reserved for recreation
\nground.\n<\/p>\n
 10. We, accordingly, allow the Writ Petition
\nin terms of prayer clause (a). Prayer clause (a)
\nreads thus:-\n<\/p>\n
  “(a) That this Honble Court be pleased
\nto issue a writ of mandamus or writ in
\nthe nature of mandamus or any other writ,
\norder or direction under Article 226 of
\nthe Constitution of India to call for the
\nrecords from the Respondents and after
\nexamining the same and going into the
\nlegality and propriety of the impugned
\nreservation of the land bearing
\nC.S.No.176 of Tardeo Division known as
\nHakimwadi Chawl, situate at the junction
\nof Falkland Land Road and Eruchshaw Road
\nin the Development Plan, off “D” Ward
\nsanctioned by the 1st Respondents under a
\nGovt. Resolution No.TPB-4390\/1902 UD
\n(RDP) dated 6th July, 1991 caused the
\nsaid reservation;”\n<\/p>\n
 No costs.\n<\/p>\n
 Certified copy expedited.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dr. Dina Sohrab Hakim And Dr. … vs The State Of Maharashtra Having … on 28 March, 2002 Equivalent citations: AIR 2002 Bom 387, 2002 (6) BomCR 277, (2002) 3 BOMLR 646, 2002 (2) MhLj 851 Author: R Lodha Bench: R Lodha, S Vazifdar JUDGMENT R.M. Lodha, J. 1. Heard Mrs.M.V.Shetty, learned […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-51640","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDr. Dina Sohrab Hakim And Dr. ... vs The State Of Maharashtra Having ... on 28 March, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-dina-sohrab-hakim-and-dr-vs-the-state-of-maharashtra-having-on-28-march-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr. Dina Sohrab Hakim And Dr. ... vs The State Of Maharashtra Having ... on 28 March, 2002 - 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