Land “Required” For Public Purpose Under Development Control Regulations, Forming Part Of Development Plan, Can Be Acquired U/S 126 MRTP Act: Bombay High Court
The Bench upheld Bhendi Bazaar cluster redevelopment, noted that the scheme qualifies as public purpose and cannot be branded as benefitting private trust; Section 91 Waqf Act plea by mosque waqf rejected as the board never applied within one month.
Justice Manish Pitale, Justice Shreeram V. Shirsat, Bombay High Court
The Bombay High Court has held that when land is required for a public purpose under a Development Control Regulation, which is part of the development plan, the power to acquire it can validly be exercised under Section 126 of the Maharashtra Regional and Town Planning Act, 1966. The Court rejected the argument that only land “reserved” or “designated” can be acquired.
The Court held that the Cluster Development Scheme is a public purpose and cannot be branded as a scheme for the benefit of the Saifee Burhani Upliftment Trust. It also rejected a plea by Dhanwadi Mohallah Mosque Waqf under Section 91 of the Waqf Act, 1995, noting that the Waqf Board never applied within one month and had stated it had no objection.
A Division Bench of Justice Manish Pitale and Justice Shreeram V. Shirsat observed, “…when a piece of land is required for public purpose under such a Development Control Regulation, which is part of the development plan, the power to acquire the same can certainly be validly exercised, as has been done in the present case. The emphasis placed by the petitioners only on the two words ‘reserved’ and ‘designated’, while ignoring the word ‘required’ for public purpose, is found to be erroneous and hence, the contentions raised on behalf of the petitioners in this context, are rejected”.
“…we find that the whole basis of raising such contentions is their understanding that only when land is either ‘designated’ or ‘reserved’ for public purpose in a development plan, that the same can be acquired by the planning authority. But, the said contention ignores the word ‘required’ used in Sections 125 and 126 of the MRTP Act”, the Bench said.
Advocate Sagheer A. Khan appeared for the petitioner and Dr. Milind Sathe, Advocate General appeared for the respondent.
The petitioners, owners of the Lucky Building in Bhendi Bazaar and the mosque waqf, challenged Regulation 33(9)(3)(5), the Collector’s September 27, 2019 notification, the December 30, 2019 award and the possession notice. The Trust had secured development rights over about 93 percent of the cluster, and the petitioners were among the roughly 7 percent non-consenting owners. Possession was taken on February 3, 2020, and the building was demolished in August 2023.
The first petition came up on an interim order against dispossession, which a Division Bench vacated on July 21, 2023. The Supreme Court declined to interfere on August 21, 2023, leaving all contentions open. The second petition added the waqf ground in 2024.
The Court held that petitioners ignored the word “required” in Sections 125 and 126. Development Control Regulations are framed under Section 159 read with Section 22(m), so they form part of the development plan. The regulation was made through the Section 37(1AA) process and contains sufficient guidelines, so there was no excessive delegation. It qualified as “law” under Article 300A, and the Trust bore the compensation cost. The building was a pre-1940 cessed building, treated as dangerous, and “Collector” includes the Deputy Collector. Compensation grievances lie in a Section 64 reference. On the waqf plea, the Court cited Section 91(4).
“In sub-section (4) of Section 91 of the Waqf Act, it is specified that any order passed under the provisions of the Land Acquisition Act or under corresponding provisions of law, without giving an opportunity to the Waqf Board, can be declared void if the Waqf Board, within one month of its coming to know of the order, applies in that behalf, to the authority, which passed such an order. In the present case, the Waqf Board did not make any such application, much less within one month before the concerned authority. In any case, in the reply affidavit to the said Writ Petition No.4762 of 2024, the Waqf Board categorically stated that it had no objection to the subject acquisition and that it had notice of the same”, the Bench noted.
The petitions were dismissed, and pending applications were disposed of. Petitioners remain at liberty to pursue their Section 64 reference.
Cause Title: Moiz Dawoodbhai Palitanawala & Ors. v. The Municipal Corporation of Greater Mumbai & Ors. (Neutral Citation: 2026:BHC-OS:23000-DB)
Appearances:
Petitioner: Sagheer A. Khan, Sauda Nachan, Advocates.
Respondent: Dr. Milind Sathe, Advocate General, Usha Rahi and Manish Upadhye, AGPs, Pooja Khandeparkar, K.H. Mastakar, Muralidharan Kalathil, Abdul Hafeez Yakub Kotwala, Dr. Birendra Saraf, Senior Advocate, Pralhad Paranjpe, Advocate.