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WRIT PETITION NO.1529 OF 2008
Date of decision: 19th September, 2008.
For approval and signature.
THE HONOURABLE SHRI JUSTICE F.I. REBELLO.
THE HONOURABLE SHRI JUSTICE B.R. GAVAI.
1. Whether Reporters of Local Papers }
may be allowed to see the judgment? }
2. To be referred to the Reporter or not? }
3. Whether Their Lordships wish to see
the fair copy of the judgment? }
4.
Whether this case involves a substantial
question of law as to the interpretation
}
}
of the Constitution of India, 1950 or }
any Order made thereunder? }
5. Whether it is to be circulated to the }
Civil Judges? }
6. Whether the case involves an important }
question of law and whether a copy of }
the judgment should be sent to Mumbai, }
Nagpur and Panaji offices? }
[ S.U.Tupe ]
Personal Assistant to
the Honourable Judge.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1529 OF 2008
1. Shrikant s/o Uttamrao Bhutekar,
Age: 27 years, Occ: Agri.,
R/o. Ramnagar, Laxmi Colony,
Osmanabad, Tq & Dist. Osmanabad.
2. Shahaji s/o Namdevrao Kakade,
Age: 65 years, Occ: Agri.,
R/o. Namnagar, Laxmi Colony,
Osmanabad, Tq & Dist. Osmanabad.
3. Raghuveer s/o Shivaji Chitrao,
Age: 26 years, Occ: Agri.,
R/o. Ramnagar, Laxmi Colony,
Osmanabad, Tq & Dist. Osmanabad.
.... PETITIONERS
VERSUS
1. The State of Maharashtra,
through its Secretary,
Department of Town Planning,
Mantralaya, Mumbai.
2. The District Collector,
Collector Office, Osmanabad,
Tq. & Dist. Osmanabad.
3. The Chief Officer,
Municipal Council,
Osmanabad.
4. The Town Planning Officer,
Town Planning Office,
Osmanabad.
5. The Deputy Director,
Town Planning, Aurangabad,
Near Baba Petrol Pump,
Aurangabad.
6. The Director,
Town Planning, Central Office,
State of Maharashtra, Pune.
.... RESPONDENTS
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...
Shri.A.B. Kale, Advocate holding for
Shri.P.V.Jadhavar, Advocate for petitioner.
Shri.K.M.Suryawanshi, A.G.P. for respondent-State.
Shri.R.V.Naiknaware, Advocate for respondent No.3.
...
CORAM: F.I. REBELLO, AND
B.R. GAVAI, JJ.
RESERVED ON : 14TH AUGUST, 2008
PRONOUNCED ON: 19TH SEPTEMBER, 2008
JUDGMENT: ( PER : F.I. REBELLO, J.)
. The petitioners have filed present petition
contending
admeasuring
that
1
H.
they are the owners of the
82 R. and 81 R. from
land
Survey
No. 117 situated at Osmanabad city. In terms of
development plan for Osmanabad city, this land has
been reserved for play ground. Respondent No. 3
is the Municipal Council for whom the land is
reserved for development of play ground. By the
present petition, the petitioners are praying that
the land admeasuring 1 H. 82 R. and 81 R. from
Survey No. 117 situated at Osmanabad city, be
deleted from the revised development scheme of
Osmanabad city, as notified in notification dated
20-04-1985 and that reservation insofar as the
petitioners’ land is concerned be cancelled.
. It is the case of the petitioners that on
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several occasions they have brought to the notice
of the respondents that the land which is reserved
be used for the purpose for which it reserved and
if the respondents are not in a position to
acquire the land then to de-reserve the same and
to permit the petitioners to develop the land.
They moved an application and raised objection
before respondent Nos. 3 and 4 by their
application dated 04-07-2006. It was pointed out
in the said application that the land has not been
acquired nor has compensation been paid to the
petitioners
and lay out permission sought by the
petitioners, has also not been sanctioned.
2. The petitioners again on 20-11-2006 moved
an application to respondent No. 3 stating
therein that the concerned authorities are not
taking steps and therefore, the said land be
de-reserved which is reserved for the purpose of
play ground. The said application,it was stated
be treated as a notice under Section 127 of the
M.R.T.P. Act. Till date of filing of the
petition i.e.26-02-2008 respondent – authorities
have not initiated an proceedings for acquisition
or taken steps. The petitioners are therefore
entitled, to get the land back, as no steps have
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been taken within six months in terms of Section
127 of the Maharashtra Regional and Town Planning
Act, 1966, as the reservation automatically
lapsed. The petitioners rely on the communication
dated 20-11-2006.
3. Osmanabad Municipal Council has published a
notice in the newspaper on 19-06-2002 intimating
commencement of the process for revised
development plan. The earlier plan was notified
in the year 1985. The petitioners herein have
raised objection to the revised development plan.
4. On 21-02-2007 respondent No. 3 issued a
notice to the petitioners in respect of their
application dated 12-02-2007. Petitioners were
informed that their application dated 12-02-2007
cannot be considered as purchase notice in terms
of Section 127 of the Maharashtra Regional and
Town Planning Act, 1966 ( hereinafter referred to
as “M.R.T.P. Act”). It was also pointed out that
the petitioners had raised objection in respect of
revised development plan and an opportunity of
hearing would be accorded to the petitioners. The
petitioners received notice on 07-11-2007 to
remain present in respect of objection raised to
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the revised development plan. Accordingly, the
petitioners have appeared and have made detailed
representation for de-reservation. Reference is
made to W.P. No. 4977/2003 in respect of the
revised development scheme of Osmanabad city,
where specific directions were issued against
respondent No.3. Petitioners have been unable to
show relation of order passed in that W.P. with
the issue in the present petition.
5. Reply has been filed on behalf of
respondent No.
3. According to respondent No. 3
petitioners are not the original owners of the
land nor the petitioners had served purchased
notice in terms of Section 49 of the M.R.T.P.Act
on the Municipal Council and the Planning
Authority in its proper perspectives. Such a
notice is mandatory. As only after that is the
planning authority entitled to take steps for
acquisition of the reserved land and if the
authority fails to take the appropriate steps then
only the land is entitled to be de-reserved.
Respondent No. 3 has started the process to
initiate the second revised development plan in
the year 2002 and a notice was published in the
local newspaper on 19-06-2002. In the present
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revised plan, reservation No. 6 on the land
Survey No. 117 is kept for the purpose of play
ground considering the future necessity of public
at large in the developing city. The petitioners
had objected to the proposed reservation on the
land Survey No. 117 on 04-07-2006. Before this
objection, the petitioners had not given any
representation to the Municipal Council. The
objection filed by the petitioners was heard by
the planning team formulated for hearing the
public objections. Subsequent procedure for
notifying the
plan will be followed. On notice
being received of revised development plan, it is
submitted that by operation of law more so
Sections 23 and Section 38, the land use for which
development plan is being proposal is frozen. The
petitioner is though not entitled to seek
de-reservation of land or change the use of the
land.
. In reply to Para. 6 of the petitioner that
the notice was served on 20-11-2006, it is
specifically set out that this notice has not been
served on the Municipal Council and inspite of
that the Council is taking steps for acquisition
of the land Survey No. 117 reservation No. 6 as
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per law and under the provisions of M.R.T.P. Act.
This specific averment about non receipt of notice
has not been denied. For the aforesaid reasons,
it is submitted that the petition should be
dismissed.
6. Reply has also been filed on behalf of
respondent Nos. 1,4,5 and 6. It is set out that
the Government has sanctioned development plan for
Osmanabad (R) on 20-04-1985 which came into force
on 01-06-1985. The development plan of Osmanabad
(Second Revision)
ig was published in Maharashtra
Government Gazette on 23-06-2006 inviting
suggestions, objections from the public within
period of 60 days. The petitioner has raised
objection on 04-07-2006. The petitioners’ land
was reserved by following the due procedure under
the M.R.T.P. Act and consequently suitable orders
be passed.
7. From the facts on record, what emerges is
that there is a development plan notified in the
year 1985. That development plan is sought to be
revised in terms of the M.R.T.P. Act and notice
to that effect was published in 2002. The State
Government thereafter has published the second
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revised proposed development plan of Osmanabad
under Section 26 and invited objections. In the
second revised plan also the land reserved for
play ground which the same reserved as per
development plan in force.
8. From the averments in the petition and
reply filed, the questions that arises for
consideration are :
(i) In
the instant case,
petitioners established that
has the
they have
served notice as required under Section 127
of the M.R.T.P. Act and if so, served,does the land stand de-reserved?
(ii) Whether after a revision is proposed
to the development plan in force under the
M.R.T.P. Act, what is the effect ofserving notice under Section 127 of the
Act?
9. To answer the first issue we have to
consider the provisions of Section 127 of the
M.R.T.P. Act. The Section firstly requires that
a notice be served on the Planning Authority,
Development Authority or as the case may be
appropriate authority. Secondly, the notice may
be served by the owner or any person interested in
the land. On such service of the notice on the
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authority, the reservation, allotment shall be
deemed to have lapsed if no steps for acquisition
are taken within the time prescribed. Under
Section 136, it is required that the notice be
served on any person who shall be deemed to be
duly served, if it is sent by registered post or
delivered at such office. This provision only
mandates as to when it can be said that a notice
is duly served. Planning Authority” is defined
under Section 2(19) of the M.R.T.P. Act.
Similarly, “local authority” is defined under
Section
2(15) of the Act. Under Section 152 the
powers of the Planning Authority are to be
exercised by the officers as set out therein.
This does not include Section 127. Under Section
146 every member and every officer and other
employee of a Regional Board or Planning Authority
or Development Authority shall be deemed to be a
public servant within the meaning of Section 21 of
the Indian Penal Code. The notice therefore under
Section 127 is a notice to be served on the
Planning Authority or as the case may be,
appropriate authority. The notice would therefore
be valid if the notice is served on the authority.
In the first instance, it is sought to be
contended that the notice was served on
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20-11-2006. The notice of 20-11-2006 is addressed
to the President/C.E.O. of the Nagarparishad.
Secondly, respondent No. 3 has specifically
averred that the said notice has not been received
by them. This has not been controverted by the
petitioners by filing any rejoinder. In Para. 13
of the reply filed by respondent No.3, it is
clearly set out that a notice has not been served
on 20-11-2006 on the Municipal Council. The time
to take steps would commence on a proper notice
being served. Our attention is invited to the
Judgment of
the Division Bench of this court in
M/s. C.V. Shah & A.V. Bhat vs. State of
Maharashtra, 2005(3) ALL MR 197,
197 to point out that
a notice served on Principal Officer is a good
service. Our attention was specifically invited
to Para. 21 of the said judgment. The court
there held that the notice addressed to the
Commissioner, Pune Municipal Corporation is a
notice duly served. On this ground alone, as time
has not commenced to run, the question of the land
standing de-reserved by operation of law has to be
rejected.
10. Assuming that the notice was validly
served, the question is whether the land stands
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de-reserved. On behalf of the petitioners,
learned counsel has placed reliance on the
judgment of the Supreme Court in Girnar Traders
vs. State of Maharashtra and others, with S.P.
Building Corporation and another vs. State of
Maharashtra and others, (2007) 7 Supreme Court
Cases, 555 = 2007 AIR SCW 5782. In the majority
judgment, the issue as to when steps are taken
under Section 127 have been considered. The court
observed that the steps to commencement of the
acquisition in such a situation would necessarily
be
the steps for acquisition and not a step which
may not result into acquisition and merely for the
purpose of seeking time so that Section 127 does
not come into operation. Dealing with Section 127
the majority opinion, observed as under.
“The underlying principle envisaged in
Section 127 of the M.R.T.P. Act is either
to utilise the land for the purpose it isreserved in the plan in a given time or let
the owner utilise the land for the purpose
it is permissible under the Town Planning
Scheme. The step taken under the Section
within time stipulated should be towards
acquisition of land. It is a step of
acquisition of land and not step foracquisition of land. It is trite that
failure of authorities to take steps which
result in actual commencement of
acquisition of land cannot be permitted to
defeat the purpose and object of the scheme
of acquisition under the M.R.T.P. Act by
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12Government to acquire the land, which
Government may or may not accept. Any step
which may or may not culminate in the step
for acquisition cannot be be said to be a
step towards acquisition.”
. The court, in its majority opinion,
observed as under.
“It is Section 6 declaration which would
commence the acquisition proceedings under
the MRTP Act and would culminate into
passing of an award as provided insub-section (3) of Section 126 of the
M.R.T.P. Act. Thus, unless and untilSection 6 declaration is issued, it cannot
be said that the steps for acquisition are
commenced.”
. It is no doubt true that minority view is
to the contrary and has taken the view that the
issue must be referred to larger bench for
consideration also of the issue, as to
applicability of Section 11A of the Land
Acquisition Act has already been referred to a
larger bench in the case of Girnar Traders
(supra).
11. On behalf of respondents, learned counsel
seeks to point out to the provisions of Section
126(1) (c) and 126(2). It is submitted that under
Section 126(1)(c) the authority has to make an
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application to the State Government and under
Section 126(2) it is the State Government that has
to take steps to issue the declaration under
Section 126(2), whereas under Section 127 the
Planning Authority, Developing Authority, or as
the case may be, Appropriate Authority that has to
take steps for commencing acquisition on notice
being served. In our opinion, it would not be
possible for us to consider such contention,
considering majority opinion in M/s. Girnar
Traders (Supra), to take any other view.
12. The preparation of a development plan is
governed by Chapter-III of the M.R.T.P. Act. On
the plan being notified, it is the duty of every
planning authority to take such steps are
necessary to carry out the provisions of the plan
in terms of Section 42. In other words, after
development plan is notified, the development in
the area has to be in terms of the plan as
notified. The first revised development plan came
into force on 01-06-1985. There is a further duty
cast on the planning authority under Section 38 of
the M.R.T.P. Act, at least once in twenty years
from the date on which a Development Plan has come
into operation to revise the development plan. In
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the instant case, steps have been taken for
revision of development plan. While revising the
plan, various provisions had to be followed. Once
the plan is revised, that is a new development
plan. (See Judgment in Mr. Prafulla C. Dave and
others vs. The Municipal Commissioner, Pune
Municipal Corpration and others, All M.R. 2008(2)
400).
400)
. Under Section 43 of the M.R.T.P. Act,
after the date on which the declaration of
intention to
prepare a Development plan for any
area is published in the Official Gazette or after
the date on which a notification specifying any
area as notified area is published in the Official
Gazette, no person shall institute or change the
use of any land or carry out any development of
land without the permission in writing of the
Planning Authority except for the purposes set out
therein. A perusal, therefore, of Section 43
would indicate that the land cannot be
developed,once the declaration of intention to
prepare a development plan of any area is
published. It would, thus, be clear from the
reading of this provision that even if the
reservation in the development plan as notified,
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stands de-reserved, yet considering Section 43,
the development can be carried out only with the
permission of the Planning Authority. The
Planning Authority while granting permission for
development under Section 46 shall have due regard
to the provisions of any draft or final plan or
proposal published by means of notice submitted or
sanctioned under the Act.
. In the instant case, as pointed out, even
if it is assumed that the reservation under the
old
development plan by virtue of a notice being
served under Section 127 and no steps are taken
withinin the time prescribed and as such the
reservation no longer subsists, on account of
subsequent events namely draft plan of proposal
which has been published, the Planning Authority
while granting permission must have due regard of
provisions of the draft plan. Of course, this
would be when the petitioners applies for
development if otherwise, we hold that the
reservation on the land stands de-reserved. The
second issue is answered accordingly.
13. In our opinion, as the petitioners are
unable to show that valid notice as required under
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Section 127 has not commenced and if that be so,
the relief as sought by the petitioners cannot be
granted. The petition, is therefore, dismissed.
Rule discharged. There shall be no order as to
costs.
[ B.R. GAVAI, J.] [ F.I. REBELLO, J.]
sut/u/SEPT08/wp1529.08
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