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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT
AURANGABAD
WRIT PETITION NO. 6959 OF 2008
1. Anil Dattatraya Girme,
Age : 56 Years, Occu. : Agril.,
2. Ashok Dattatraya Girme,
Age : 54 Years, Occu. : Agril.,
3. Dilip Dattatraya Girme,
Age : 52 Years, Occu. : Agril.,
4. Vijaya Ashok Pandhare,
Age : 58 Years, Occu. : Household,
Petitioners No. 1 to 4
R/o Kopargaon, Near Fatherwadi,
Dist. Ahmednagar.
5. Shaila Vilas Kulkarni,
Age : 46 Years, Occu. : Household,
R/o Pune, Deccan Jimkhana.
6. Ketan Vilas Kulkarni,
Age : 24 Years, Occu. : Service,
R/o As above. .. .. .. Petitioners
Versus
1. The State of Maharashtra
2. Municipal Council, Kopargaon,
Through it's Chief Officer,
Kopergaon, Dist. Ahmednagar.
3. Assistant Director of Town Planning,
Ahmednagar, At Post Tq. & Dist.
Ahmednagar.
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4. Deputy Director of Town Planning,
Nashik Division, Nashik.
5. Director of Town Planning,
Maharashtra State, Central
Building, Pune. .. .. Respondents
Shri A. P. Bhandari, Advocate h/f Shri S. V. Gangapurwala, Advocate
for the Petitioner.
Shri K. G. Patil, A.G.P. for the Respondent Nos. 1, 3 to 5.
Shri M. M. Patil Beedkar, Advocate for the Respondent No. 2.
CORAM : B. R. GAVAI, AND
N. D. DESHPANDE, JJ.
DATE : 31ST AUGUST, 2009.
ORAL JUDGMENT [Per B. R. Gavai, J. ] :
1. Rule. Rule made returnable forthwith. Heard by consent.
2. By way of present petition, the petitioners are seeking writ of
mandamus directing the respondents to release the land bearing
survey No. 103 admeasuring 15H 71R, 104 admeasuring 3H 35R
situated at Kopargaon, within the Municipal limits of Kopargaon,
Municipal Council, Dist. Ahmednagar from reservation No. 32, 34,
91, 28 and 27 (Hereinafter referred as said “Land”).
3. The said “land” is owned by the petitioner Nos. 5 and 6 and
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one Nikhil Vilas Kulkarni. The petitioner No. 1 to 4 are the tenants
of the ‘said land’. There is no dispute in so far as the tenency right of
the petitioner No. 1 to 4 is concerned, between the petitioners No. 1
to 4 and the owners of the land.
4. The said “land” was reserved for certain purposes, vide
reservation No. 32, 34, 91, 28 and 27 in the development plan
which was finalized in the year 1988.
5.
Since no steps for acquisition of ‘said land’ wee taken by the
respondents herein, the petitioner Nos. 1 to 4 served a purchase
notice upon the respondent No. 2 on 11th December, 2007.
However, since no steps were taken for acquiring the said “land”
within a period of six months as required under Section 127 of the
Maharashtra Regional and Town Planning Act (Hereinafter referred
to as the said “Act”), the petitioners have approached to the Chief
Officer of respondent No. 2.
6. Shri Bhandari, learned counsel appearing on behalf of
petitioners submit that, in view of the judgment of the Apex Court in
the case of Girnar Traders v. State of Maharashtra reported in
(2007) 7 Supreme Court Cases 555, it was necessary that a
declaration under Section 6 of the Land Acquisition Act, as required
under Section 126(2) of the said “Act”, was required to be made
within a period of six months from the date of service of purchase
notice. He further submits that on non issuance of declaration as
aforesaid the land stood deemed to be released from the reservation
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and as such available to the owners for the purpose of the
development of the said land.
7. Shri Patil Beedkar learned counsel appearing on behalf of
respondent No. 2 fairly concedes legal position laid down by the
Apex Court in the case of Girnar Traders cited supra. However, he
submits that, since the notice under Section 127 of the said “Act” was
not given by the owners of the land, but was given by the petitioner
Nos. 1 to 4, it was not the valid notice in law and as such, the
contention of the petitioners that, land stood dereserved was without
substance.
8. Shri Patil learned counsel for the respondent No. 2 submits
that, the word “Any Person Interested in the Land” cannot be
stressed to mean that a tenant in the land is also entitled to issue the
notice.
9. Shri Bhandari learned counsel for the petitioners in support of
his submission submits that, the term “Any Person Interested in the
Land” has to be interpreted to mean that a tenant is also included in
the said definition who is entitled to serve the notice. He relies on
the judgment of the Apex Court in the case of Jaswantsingh
Mathurasing v. Ahmedabad Municipal Corporation reported in
1992 Supp (1) Supreme Court Cases 5, in this regard. He submits
that, a similar term under the Land Acquisition Act has also been
considered by the various High Courts and in the said
pronouncement a ‘tenant’ has also been held to be included in the
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definition of ‘persons interested’. Learned counsel for the petitioner
relies on the judgment of Full Bench of Punjab and Haryana High
Court in the case of State of Punjab v. Gurdial Singh and another
reported in A.I.R. 1984 Punjab and Haryana 1, Division Bench of
Gujrath High Court in the case of M/s. Shashikant Gopaldas and
Co. and another v The Special Land Acquisition Officer, reported
in AIR Gujrat 278 (V58 C51), Division Bench of Andhra Pradesh
High Court in the case of Katari Satyanarayana v. District
Collector, Krishna at Machilipatnam, reported in AIR 1990
Andhra Pradesh 326, Division Bench of Calcutta High Court in the
case of Comilla Electric Supply v. East Bengal Bank Ltd., reported
in AIR 1939 Calcutta 669.
10. Section 127 of the said “Act” reads thus,
“127. 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
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the purpose of development as otherwise, permissible
in the case of adjacent land under the relevant plan.”
It can thus be seen that, the owner of the land or any person
interested in the land is entitled to serve a notice on the Planning
Authority. The question however, which is required to be answered
as to whether, a tenant is included in the term “any person interested
in the land”.
11.
The Apex Court in the case of Jaswantsingh Mathurasing v.
Ahmedabad Municipal Corporation, cited supra, has considered
the provisions of Rule 21 of the Bombay Town Planning Rules 1955.
Under the said Rules, the Town Planning Officer was required to
serve the notice upon the persons interested in any plot comprised in
the scheme. The Apex Court in the case cited supra, has observed
thus :
“8. The question is whether the tenant or a
sub-tenant is a person interested and is entitled
to notice. It is obsvious that under Section 105of Transfer of Property Act, a lease creates right
or an interest in enjoyment of the demised
property and a tenant or a sub tenant is entitled
to remain in possession of the demised property
until the lease is duly terminated and evictiontakes place in accordance with law. Therefore, a
tenant or a sub-tenant in possession of a
tenement in the Town Planning Scheme is a
person interested within the meaning of Rules
21(3) and (4) of the Rules. But he must be in
possession of the property on the crucial date i. e.
when the Town Planning Scheme is notified in
the official Gazette. Every owner or tenant or a
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7be entitled to a notice and opportunity”.
12. The term “person interested” has also been interpreted in the
various pronouncements of various High Courts, on which learned
counsel appearing for the petitioners has relied. The Division
Benches of Gujrat, Andhra Pradesh and Calcutta High Courts have
held that, the tenant in the land which was under acquisition was a
person interested in so far as the provisions of Land Acquisition Act
are concerned. In view of the judgment of Apex Court in the case of
Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation
cited supra and the purpose for which the said Act has been
incorporated, we are of the considered view that, tenant would be
included in the term “any Person Interested in the Land”. In that
view of the matter, we do not find any substance in the contentions
raised on behalf of respondent No. 2/Municipal Council that, tenant
would not be included in the term “any Person Interested in the
Land”. In any event, the present petition is filed by the tenants as
well as the land lords. The petition is filed on 21st October, 2008.
Even as on today we have asked the learned counsel appearing for
the respondent No. 2/Municipal Council, as to whether the
Municipal Council was in a position to acquire the land after paying
the compensation, Shri Beedkar Patil learned counsel on instructions
from the Chief Officer of the Municipal Council Kopergaon, states
that, since there is paucity of funds, it is not possible for the
Municipal Council to take immediate steps for acquisition of the
land.
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13. Shri Beedkar Patil learned counsel appearing on behalf of
respondent No. 2/Municipal Council relies on the judgment of
SCINDIA Employee’s Union Vs. State of Maharashtra and others
reported in (1996) 10 S.C.C. 150 and submits that, workers were
not included in the definition of a person interested, who were
working in a workshop situated over the acquired land.
14. In so far as reliance placed by Shri Beedkar Patil on the
judgment of the Apex Court cited supra is concerned, we find that,
reliance is without any substance. The question that arose for
consideration was as to whether notice under Section 5A to the
workers of a workshop which was situated under the acquired land,
was necessary and as to whether, they were persons interested. The
Apex Court in the said case found that, under the said provisions
limited scope for inquiry was as to whether lands sought to be
acquired is needed for the public purpose and whether, the land is
suitable for the purpose. It can further be seen that Sub Section (3)
of Section 5A makes it amply clear that for the purpose of said
section a person shall be deemed to be person interested, who would
be entitled to claim an interest in compensation if the lands were
acquired under the said “Act”. It was found that, dispute between
workers and the employer was beyond the scope of an inquiry under
Section 5A of the Land Acquisition Act. In that view of the matter,
we do not find that, the said judgment would be any way near to the
facts of the present case.
15. We find that, the judgment of the Apex Court in the case of
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Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation
cited supra would apply to the facts of the present case, wherein, it
has been held that, tenants of the property were also “persons
interested” and entitled to be included in the definition of “persons
interested” under the Bombay Town Planning Rules.
15. Having held that, the tenant is included in the definition of
“Any Person Interested in the Land”, who is entitled to serve a notice
to the Planning Authority and further noticing that, the present
petition is filed by the tenants as well as owners of the land and that
inspite of valid service of notice under Section 127 of the said “Act”
no steps are taken for acquisition of the land as contemplated in the
judgment of Supreme Court in the case of Girnar Traders cited
supra, we have no other option but to allow the petition.
16. Rule is therefore, made absolute in terms of prayer clause “C”.
[ N. D. DESHPANDE, J.] [ B. R. GAVAI, J.]
bsb/August 09
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