1 Writ Petition No.11759 of 2010
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11759 OF 2010
Vijaykumar S/o.Motilal Hirakhanwala,
Age-75 years, Occu-Business,
R/o.E1, Cidco, Ridge Road,
Mumbai 400006 PETITIONER
VERSUS
1. The State of Maharashtra,
Through the Secretary,
Ministry of Urban Development,
Mantralaya, Mumbai - 400 032,
2. Jalna Municipal Council,
Jalna,
Through its Chief Officer,
3. The Town Planner,
Jalna Municipal Council,
Jalna. RESPONDENTS
Mr.S.P.Deshmukh, learned counsel for the petitioner.
Mr.D.V.Tele, learned A.G.P. for respondent State.
Mr.H.K.Mundhe, learned counsel for respondent no. 2 & 3.
(CORAM : P.V.HARDAS, AND
A.V.POTDAR, J.J.)
DATE : 17/02/2011
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2 Writ Petition No.11759 of 2010
ORAL JUDGMENT : (Per A.V.Potdar,J.)
1. Rule. Rule made returnable forthwith. By consent of the
parties, heard finally at the stage of admission.
2. By the present writ petition under Article 14, 19(1)(g), Article
226 and 300-A of The Constitution of India, the petitioner has
approached this Court for issuance of writ of mandamus, directing
respondents to confirm lapsing of reservation and release of land
from reservation no.57 over an area of 4000 Sq.Mtrs. of C.T.S.No.
6758, within the limits of Jalna Municipal Council, Jalna, under
Final Development Plan in respect of Jalna City in ownership and
possession of the petitioner, and also prayed for issuance of
appropriate writ for the declaration that reservation no.57 over land
bearing no.CTS No.6758, within the Municipal Limits of Jalna stands
lapsed and the said land is released from the reservation under Final
Development Plan of Jalna city and for issuance of writ directing
respondent no.1 to notify the lapsing of reservation no.57 over an
area of 4000 Sq.Mtrs. on land bearing CTS No.6758 within the limits
of Jalna Municipal Council and the same be directed to be published
in official gazette, in pursuant to section 127(2) of The Maharashtra
Regional and Town Planning Act, 1966.
3. It is contended by the counsel for petitioner that the petitioner
is owner of land bearing CTS No.6758, within the limits of Municipal
Council, Jalna admeasuring about 13890 Sq.Mts. Out of the said
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3 Writ Petition No.11759 of 2010
land, land admeasuring about 40 R’s equivalent to 4000 Sq.Mts.
From the said city survey no., have been reserved for the Primary
School and playground under reservation no.57 in the Final
Development Plan of the Jalna Municipal Council, Jalna. The said
Final Development plan was notified and brought into force on
15/05/1989. It is further contended that resolution no.57 came to
be passed by the Jalna Municipal Council, respondent no.2, on
27/05/2002 by the Planning Authority. It is further contended that
the aforesaid reservation had neither been persuaded nor acted upon
over last 21 years. It is further contended that no steps of
acquisition of land under resolution had been ever taken. On
28/09/2009, petitioner issued purchase notice u/s. 127 of The
M.R.T.P. Act. The said notice was served on respondent no.2 and
received by respondent no.2 on 29/09/2009. Section 127 of The
M.R.T.P. Act (Amended) and the amended provisions of the
M.R.T.P.Act were published in the Government gazette on
25/06/2009. It is further contended that under the amended
provisions of the Act, period of 6 months referred u/s. 127 of The
M.R.T.P.Act, for taking action had been enlarged to 12 months by
virtue of the amendment of the Amended Act of 2009. Failure to
take steps of acquisition, the reservation over the land would lapsed
and would be deemed to be de-reserved. The said period of 12
months for taking steps of acquisition of land has been expired as
referred under the Amended Section 127(1) of The M.R.T.P. Act on
28/29th October 2010. It is further contended that the petitioner
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4 Writ Petition No.11759 of 2010
issued notice to confirm the lapsing of the reservation and for release
of the land and to intimate the same to the State Government to able
it to notify and requesting to do the same by 11th October 2010 vide
notice issued dated 30th September, 2010. The said notice was
served on the 2nd respondent on 01/10/2010. As no response is
received whatsoever to the aforesaid request given to the respondents
in respect of the said reservation, hence the present petition.
4.
After filing of this writ petition, in response to the notice
issued, an affidavit in reply was filed by respondent no.2 and 3. In
the said reply, notification of the reservation is not disputed. It is
contended that vide resolution no.33, on 27/05/2002, the
respondents have send the proposal to the Collector at Jalna for
acquisition of the same. It is further contended that Special Land
Acquisition Officer had issued letter for joint measurement on
28/08/2003. It is further contended that the steps were taken
before issuance of the notice by the petitioner dated 28th September
2009. It is further contended that the petitioner had not filed the
maps alongwith the application. Hence he was directed to submit
the map vide letter dated 18/03/2010, in which the site was not
located. Lastly, it is contended that the Municipal Council, Jalna
have passed the resolution in their General Body Meeting on
29/09/2010 and have resolved the proposed development plan of the
Municipal Council as per section 26 of The M.R.T.P. Act, 1966. Notice
to that effect was given on 13/11/2010 and was published on
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5 Writ Petition No.11759 of 2010
18/11/2010. It is further alleged in the said resolution that the said
site is reserved vide resolution no.215. It is further alleged that in
the new development plan, it is clarified that the development can be
done by mutual reservation and therefore now in the changed
circumstances, the notice can not be considered as it was prior to
reservation and prayed to dismiss the petition.
5. In this background, heard submissions of learned counsel for
petitioner and learned counsel for respondents, as well as learned
A.G.P. appearing for the State respondent no.1. It is urged across
the bar by the learned counsel on behalf of the petitioner that the
prayers in the present petition and the issue involved is squarely
covered by the judgment of this Court in the matter of Shivram
S/o.Kondaji Sathe and others Versus State of Maharashtra and
others, 2009(2) All MR 347. It is also urged that the observations
in the matter of Kishor Gopalrao Bapat and others versus State of
Maharashtra and another, 2006(1) All MR 232 will also cover the
issue in respect of revision of development plan as contended on
behalf of respondent no.2 and 3.
6. It is observed in the matter of Shivram S/o.Kondaji Sathe
and others versus State (cited supra), to which one of us (Shri.P.V.
Hardas, J.) is a party, relying on the observations of the judgment of
the Apex Court in the matter of Girnar Traders Versus State of
Maharashtra and others, reported in (2007) 7 SCC 555 = 2007 All
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6 Writ Petition No.11759 of 2010
SCR 2232, wherein it is observed by the Apex Court that the
requisite steps should be a step of acquisition of land and not a step
for acquisition of land. The requisite steps towards commencement
of acquisition in such a situation would not include step which may
not result in actual commencement of the acquisition and is taken
merely for the purpose of seeking time so that section 127 does not
come into operation, to defeat the purpose and object of the scheme
of acquisition under M.R.T.P. Act. The relevant paragraphs in this
judgment are para no.35, 36, 38, 54 to 57 and 59 to 62. It is
concluded from the discussion in those paragraphs that it is clear
that the objection raised by the respondents, can not be sustained in
Law. It has been specifically held by the Supreme Court that the
steps under the section within the time stipulated, should be towards
acquisition of land. It is a step of acquisition of land and not steps
for acquisition of land. It is specifically held by the Supreme Court
that, “It is trite that failure of authorities to take steps which result in
actual commencement of acquisition of land can not be permitted to
defeat the purpose and object of the scheme of acquisition under the
M.R.T.P. Act by merely moving an application requesting the
Government to acquire the land, which Government may or may not
accept. Any step which may or may not culminate in the step for
acquisition can not be said to be a step towards acquisition,”
7. At this juncture, for clarity, it is necessary to consider the exact
text of section 127(1) of The M.R.T.P. Act, before amendment and after
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7 Writ Petition No.11759 of 2010
amendment.
Before Amendment :
Lapsing of reservations : “If any land reserved,
allotted or designated for any purpose specified in any plan
under this Act is not acquired by agreement within ten years
from the date on which a final Regional plan, or final
Development plan comes into force or if proceedings for the
acquisition of such land under this Act or under the Land
Acquisition Act, 1894, are not commenced within such
period, the owner or any person interested in the land may
serve notice on the Planning Authority, Development
Authority or as the case may be. Appropriate Authority to
that effect ; and if within six months from the date of the
service of such notice, the land is not acquired or no steps as
aforesaid are commenced for its acquisition, the reservation,
allotment or designation shall be deemed to have lapsed,
and thereupon the land shall be deemed to be released from
such reservation, allotment or designation and shall become
available to the owner for the purpose of development as
otherwise, permissible in the case of adjacent land under
the relevant plan.”
After Amendment :
“Section 127 of the Maharashtra Regional and Town
Planning Act, 1966, shall be re-numbered as sub-section (1)
thereof; and –
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8 Writ Petition No.11759 of 2010
(a) in sub-section (1) as so re-numbered, for the
portion beginning with the words “or if proceedings for the
acquisition of such land” and ending with the words “if
within six months”, the following shall be substituted,
namely :-
“of, if a declaration under sub-section (2) of (4) of
Section 126 is not published in the Official Gazette within
such period, the owner or any person interested in the land
may serve notice, alongwith the documents showing his title
or interest in the said land, or the Planning Authority, the
Development Authority, or as the case may be, the
Appropriate Authority to that effect ; and if within twelve
months.”
(b) after sub-section (1) as so re-numbered, the following
sub-section shall be added, namely :-
(2) On lapsing of reservation, allocation or designation of
any land under sub-section (1), the Government shall notify the
same, by an order published in the Official Gazette.”
8. On plain reading of section 127(1) of The M.R.T.P. Act, before
amendment and after amendment, one fact is clear that the
proceedings of acquisition to be commenced within the period of 10
years from the notification of the plan in the gazette, failing which the
reservation will lapse by virtue of the provisions of section 127. It is
further clear that after service of notice, the steps to be taken by the
authority within 6 months after the service of notice and after
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9 Writ Petition No.11759 of 2010
amendment, the steps to be taken within the period of 12 months,
and i.e. towards the acquisition of land and not for acquisition of
land. The facts of the present writ petition clearly demonstrate that
after the notification of the year 1989, no steps were taken by the
respondent no.2 and 3 for the acquisition of the land of the petitioner
which was reserved by the Planning Authority for 21 years. It is also
clear that after notice u/s. 127 was issued on 28/09/2009, which is
served and received by respondent no.2 on 29/09/2009, within the
period of 12 months till 29.09.2010/30.09.2010, no steps were taken
by respondent no.2 and 3 for acquisition of land of the petitioner, as
contemplated in Law. From these admitted facts, the ratio as laid
down by this Court in the matter of Shivram Sathe (cited supra) will
be squarely applicable to the facts of the present petition.
9. The submissions of the respondents that after notice period
was over, the Planning Authority has again resolved for the
reservation of the said plot of land by respondent no.2 and 3, then
the question arose, because of this resolution, whether the lapsing of
the reservation will revive. It is observed by this Court in the matter
of Baburao Dhondiba Salokhe versus Kolhapur Municipal
Corporation, Kolhapur and another, 2003(3) Mh.L.J. 820 that
reservation of land under Development Scheme for specific purpose
would lapse if such land is not acquired or no steps taken within time
as required u/s. 127 of The M.R.T.P. Act. Further it is observed by
the Apex Court in the matter of Bhavnagar University Versus
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10 Writ Petition No.11759 of 2010
Palitana Sugar Mill Pvt.Ltd. and others, AIR 2003 Supreme Court
511,that Section 21 of the Gujarat Act (Similar to section 38 of The
M.R.T.P. Act.) which imposes statutory obligation on the part of State
and on the appropriate authority to revise the development plan,
does not take away the right of the owner in terms of sub section 2 of
Section 20 similar to section 127 of The M.R.T.P. Act. As per the
proposition propounded by the Apex Court when applied to section
38 and 127 of The M.R.T.P. Act, it can safely be held that the section
38 does not envisage that despite the fact that in terms of section
127, the designation or reservation shall lapse, the same, only
because a draft revised plan is made, would automatically give rise to
revival thereof. Section 38 does not manifest a legislature intent to
curtail or take away the right acquired by a landowner under section
127 of getting the land defreezed.
10. It is observed in the matter of Kishor Gopalrao Bapat and
others versus State of Maharashtra and another, 2006(1) All MR
232 that lapsing of reservation in view of contingencies mentioned in
section 127, once reservation is lapsed in view of contingencies
mentioned in section 127, the necessary consequences under the
Scheme of 127 must follow i.e. the land, which is released from
reservation became available to the owner for the purpose of
development as otherwise permissible in the case of adjacent land
under the relevant plan. Right conferred or accrued to owner of the
land due to lapsing of reservation can not be taken away by the
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11 Writ Petition No.11759 of 2010
Planning Authority by exercising power under section 38.
11. By virtue of the decisions, which we have cited in the
paragraphs supra, and considering the admitted facts urged before
us by both the sides, it is clear that after the notice was served by the
petitioner on respondent no.2 u/s. 127(1) of The M.R.T.P. Act,
admittedly, no steps were taken for acquisition of land as
contemplated u/s. 127 of The M.R.T.P. Act. Consequently, the
provision u/s. 127(2) follows as the right accrued in the petitioner,
the respondents can not take away that right by simply passing the
resolution for the reservation of the said land afresh. As stated
earlier, as per the amended provisions u/s. 127(2) of The M.R.T.P.
Act, the Planning Authority to intimate about the de-reservation of
the property to the Government for official notification in the official
gazette. Thus, from the admitted facts, petitioner is entitled for the
reliefs which he had claimed in terms of prayer clause ‘B’ to prayer
clause ‘D’.
12. In the result, the petition succeeds. Rule made absolute in
terms of prayer clause ‘B’ to ‘D’ of the petition and the petition stands
disposed of accordingly with no order as to costs.
(A.V.POTDAR, J.) (P.V.HARDAS, J.)
khs/FEB. 2011/wp11759-10
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