BMC

Brihanmumbai Municipal Corporation

Bombay High Court

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Land Acquisition Act

1967 development plan

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HC allows owners to develop two parcels of land in Borivali; SC in July rejectedplea to acquire 13,000-sq mt plot in Jogeshwari.In yet another loss for the city, thehas lost two open lands in Borivali, reserved for gardens and totalling more than 1 lakh sq ft. This is the second setback for the civic body when it comes to acquiring prime pieces of land for public use in the city. In July, the Supreme Court had dismissed the BMC’s appeal that it had rights over a 13,000-sq mt plot in Jogeshwari.As for the Borivali land, adivision bench of Justices Abhay Oka and Riyaz Chagla, in a judgment delivered earlier this month but made available on Wednesday, ruled that the BMC and the state government had not taken steps specified under the law to call it an acquisition, and, therefore, the land owners were free to develop the land.The bench, however, has given the authorities a year’s time to take steps for “compulsory acquisition” and compensate the land owners as per the new, if they want to acquire the lands. “On the failure of the respondents to complete acquisition and to pay compensation to the persons interested within a period of one year from, it will be open for the owners to deal with the subject lands (as otherwise permissible in the case of adjacent land under the relevant sanctioned development plan),” the bench said.The court was hearing two petitions filed by owners Satish Rohra in one case and Satish and Salochana Rohra in the other. While one piece of land measures over 62,000 sq ft, the other piece is close to 41,000 sq ft. It is not clear if both the pieces are adjacent to each other. The lands were originally reserved for a garden way back in the, which was continued in the development plan of 1993, but the acquisition process was never completed.One interesting aspect of this case was that, the BMC invoked an August 2017 Supreme Court order passed with respect to a different piece of land in the same region, but a part of the same reservation proposal.The BMC, based on the SC order, submitted that the apex court had continued with the reservation on that piece of land and set aside a Bombay HC order which said that the reservation had lapsed, therefore, the HC should not now declare reservation as lapsed for the two land parcels part of the current cases.The HC, however, observed, that while the SC, using its extraordinary powers, continued the reservation citing public interest and purpose, it had specifically observed that the reservation on that land parcel had lapsed.Another contention raised by the BMC with respect to the 41,000 sq ft land was that the owners had signed an agreement with them way back in 1994, agreeing to surrender the land against grant of transferable development rights (TDR) – which means despite surrendering this land parcel to the BMC, the total constructible area of this land can be utilised by the owners for a different project.The HC, however, observed that the BMC invoked the TDR clause for this land parcel only after the mandatory period for it to act on a purchase notice sent by the owner had lapsed. The court said that the BMC did not take the required steps needed to acquire the land.Earlier in July, the Supreme Court dismissed the BMC’s appeal that it had rights over a 13,000-sq mt plot in Jogeshwari, which landed in private hands after its original reservation as a recreation ground lapsed and the civic body failed to acquire it for 10 years.The Bombay High Court had last year agreed with the argument of Gyanprakash Shukla, one of the plot owners, that he was free to develop the property as per his choice. Civic body chief Ajoy Mehta later said in official remarks that the high court’s order should be challenged in the Supreme Court. But his noting was tampered with and the words “should challenge” were changed to “shouldn’t challenge”. A police complaint was filed over the manipulation earlier this year. The BMC eventually moved the apex court, which rejected its appeal.The state government had reserved the Jogeshwari land for a recreation ground, a hospital, a road and housing for the displaced.