{"id":50786,"date":"2011-02-17T00:00:00","date_gmt":"2011-02-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-the-state-of-maharashtra-on-17-february-2011"},"modified":"2016-10-01T20:45:21","modified_gmt":"2016-10-01T15:15:21","slug":"vijaykumar-vs-the-state-of-maharashtra-on-17-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-the-state-of-maharashtra-on-17-february-2011","title":{"rendered":"Vijaykumar vs The State Of Maharashtra on 17 February, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Vijaykumar vs The State Of Maharashtra on 17 February, 2011<\/div>\n
Bench: P.V. Hardas, A. V. Potdar<\/div>\n
                                       1         Writ Petition No.11759 of 2010\n\n\n\n\n                                                                        \n                IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n\n\n\n                                                \n                                BENCH AT AURANGABAD\n\n\n                       WRIT PETITION NO.11759 OF 2010\n\n\n\n\n                                               \n    Vijaykumar S\/o.Motilal Hirakhanwala,\n    Age-75 years, Occu-Business,\n    R\/o.E1, Cidco, Ridge Road,\n\n\n\n\n                                      \n    Mumbai 400006                                           PETITIONER\n\n\n                VERSUS\n                        \n                       \n    1. The State of Maharashtra,\n        Through the Secretary,\n        Ministry of Urban Development,\n        Mantralaya, Mumbai - 400 032,\n      \n\n\n        \n    2. Jalna Municipal Council,\n   \n\n\n\n        Jalna,\n        Through its Chief Officer,\n\n    3. The Town Planner, \n\n\n\n\n\n        Jalna Municipal Council, \n        Jalna.                                              RESPONDENTS<\/pre>\n
    Mr.S.P.Deshmukh, learned counsel for the petitioner.
\n    Mr.D.V.Tele, learned A.G.P. for respondent State.
\n    Mr.H.K.Mundhe, learned counsel for respondent no. 2 & 3.<\/p>\n
\n\n\n\n                             (CORAM : P.V.HARDAS, AND\n                                          A.V.POTDAR, J.J.)\n\n\n                             DATE     : 17\/02\/2011\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 16:52:01 :::<\/span>\n                                               2            Writ Petition No.11759 of 2010<\/span>\n\n\n\n\n                                                                                  \n    ORAL JUDGMENT : (Per A.V.Potdar,J.)\n\n\n\n\n                                                          \n    1.     Rule.      Rule  made  returnable  forthwith.      By  consent   of  the \n\n<\/pre>\n
    parties, heard finally at the stage of admission.\n<\/p>\n
    2.     By the present writ petition under Article 14, 19(1)(g), Article <\/p>\n
    226   and   300-A     of   The   Constitution   of   India,   the   petitioner   has <\/p>\n
    approached this Court for issuance of writ of mandamus, directing <\/p>\n
    respondents   to   confirm   lapsing   of   reservation   and   release   of   land <\/p>\n
    from   reservation   no.57   over   an   area   of   4000   Sq.Mtrs.   of   C.T.S.No.\n<\/p>\n
    6758,   within   the   limits   of   Jalna   Municipal   Council,   Jalna,   under <\/p>\n
    Final  Development   Plan   in  respect   of   Jalna  City   in   ownership  and <\/p>\n
    possession   of   the   petitioner,   and   also   prayed   for   issuance   of <\/p>\n
    appropriate writ for the declaration that reservation no.57 over land <\/p>\n
    bearing no.CTS No.6758, within the Municipal Limits of Jalna stands <\/p>\n
    lapsed and the said land is released from the reservation under Final <\/p>\n
    Development   Plan   of   Jalna   city   and   for   issuance   of   writ   directing <\/p>\n
    respondent   no.1   to   notify   the   lapsing   of   reservation   no.57   over   an <\/p>\n
    area of 4000 Sq.Mtrs. on land bearing CTS No.6758 within the limits <\/p>\n
    of Jalna Municipal Council and the same be directed to be published <\/p>\n
    in official gazette, in pursuant to section 127(2) of The Maharashtra <\/p>\n
    Regional and Town Planning Act, 1966.\n<\/p>\n
    3.     It is contended by the counsel for petitioner that the petitioner <\/p>\n
    is owner of land bearing CTS No.6758, within the limits of Municipal <\/p>\n
    Council, Jalna admeasuring about 13890 Sq.Mts.   Out of the said <\/p>\n
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\n                                               3            Writ Petition No.11759 of 2010<\/span><\/p>\n
    land,   land   admeasuring   about   40   R’s   equivalent   to   4000   Sq.Mts.\n<\/p>\n
    From  the said city  survey  no., have been reserved for  the Primary <\/p>\n
    School   and   playground   under   reservation   no.57   in   the   Final <\/p>\n
    Development Plan of the Jalna Municipal Council, Jalna.    The said <\/p>\n
    Final   Development   plan   was   notified   and   brought   into   force   on <\/p>\n
    15\/05\/1989.   It is further contended that resolution no.57 came to <\/p>\n
    be   passed   by   the   Jalna   Municipal   Council,   respondent   no.2,   on <\/p>\n
    27\/05\/2002 by the Planning Authority.   It is further contended that <\/p>\n
    the aforesaid reservation had neither been persuaded nor acted upon <\/p>\n
    over   last   21   years.       It   is   further   contended   that   no   steps   of <\/p>\n
    acquisition   of   land   under   resolution   had   been   ever   taken.     On <\/p>\n
    28\/09\/2009,   petitioner   issued   purchase   notice   u\/s.   127   of   The <\/p>\n
    M.R.T.P.   Act.   The   said   notice   was   served   on   respondent   no.2   and <\/p>\n
    received   by   respondent   no.2   on   29\/09\/2009.     Section   127   of   The <\/p>\n
    M.R.T.P.   Act   (Amended)   and   the   amended   provisions   of   the <\/p>\n
    M.R.T.P.Act   were   published   in   the   Government   gazette   on <\/p>\n
    25\/06\/2009.       It   is   further   contended   that   under   the   amended <\/p>\n
    provisions of the Act, period of 6 months referred u\/s. 127 of The <\/p>\n
    M.R.T.P.Act,   for   taking   action   had   been   enlarged   to   12   months   by <\/p>\n
    virtue of the amendment of the Amended Act of 2009.     Failure to <\/p>\n
    take steps of acquisition, the reservation over the land would lapsed <\/p>\n
    and   would   be   deemed   to   be   de-reserved.       The   said   period   of   12 <\/p>\n
    months for taking steps of acquisition of land has been expired as <\/p>\n
    referred under  the  Amended  Section  127(1)  of  The  M.R.T.P. Act  on <\/p>\n
    28\/29th  October  2010.     It is further  contended that  the petitioner <\/p>\n
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\n                                                4            Writ Petition No.11759 of 2010<\/span><\/p>\n
    issued notice to confirm the lapsing of the reservation and for release <\/p>\n
    of the land and to intimate the same to the State Government to able <\/p>\n
    it to notify and requesting to do the same by 11th  October 2010 vide <\/p>\n
    notice   issued   dated   30th  September,   2010.       The   said   notice   was <\/p>\n
    served   on   the  2nd  respondent   on   01\/10\/2010.       As  no   response   is <\/p>\n
    received whatsoever to the aforesaid request given to the respondents <\/p>\n
    in respect of the said reservation, hence the present petition.\n<\/p>\n
    4.<\/p>\n
           After   filing   of   this   writ   petition,   in   response   to   the   notice <\/p>\n
    issued, an affidavit in reply was filed by respondent no.2 and 3.   In <\/p>\n
    the said reply, notification of the reservation is not disputed.     It is <\/p>\n
    contended   that   vide   resolution   no.33,   on   27\/05\/2002,   the <\/p>\n
    respondents   have   send   the   proposal   to   the   Collector   at   Jalna   for <\/p>\n
    acquisition of the same.     It is further contended that Special Land <\/p>\n
    Acquisition   Officer   had   issued   letter   for   joint   measurement   on <\/p>\n
    28\/08\/2003.       It   is   further   contended   that   the   steps   were   taken <\/p>\n
    before issuance of the notice by the petitioner dated 28th  September <\/p>\n
    2009.     It is further contended that the petitioner had not filed the <\/p>\n
    maps alongwith the application.     Hence he was directed to submit <\/p>\n
    the   map   vide   letter   dated   18\/03\/2010,   in   which   the   site   was   not <\/p>\n
    located.     Lastly, it is contended that the Municipal Council, Jalna <\/p>\n
    have   passed   the   resolution   in   their   General   Body   Meeting   on <\/p>\n
    29\/09\/2010 and have resolved the proposed development plan of the <\/p>\n
    Municipal Council as per section 26 of The M.R.T.P. Act, 1966.  Notice <\/p>\n
    to   that   effect   was   given   on   13\/11\/2010   and   was   published   on <\/p>\n
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\n                                               5            Writ Petition No.11759 of 2010<\/span><\/p>\n
    18\/11\/2010.   It is further alleged in the said resolution that the said <\/p>\n
    site is reserved vide resolution no.215.     It is further alleged that in <\/p>\n
    the new development plan, it is clarified that the development can be <\/p>\n
    done   by   mutual   reservation   and   therefore   now   in   the   changed <\/p>\n
    circumstances, the notice can not be considered as it was prior to <\/p>\n
    reservation and prayed to dismiss the petition.\n<\/p>\n
    5.     In this background, heard submissions of learned counsel for <\/p>\n
    petitioner   and   learned   counsel   for   respondents,   as   well   as   learned <\/p>\n
    A.G.P. appearing for the State respondent no.1.     It is urged across <\/p>\n
    the bar by the learned counsel on behalf of the petitioner that the <\/p>\n
    prayers   in   the   present   petition   and   the   issue   involved   is   squarely <\/p>\n
    covered   by   the   judgment   of   this   Court   in   the   matter   of  Shivram <\/p>\n
    S\/o.Kondaji Sathe and others Versus State of Maharashtra and <\/p>\n
    others, 2009(2) All MR 347.   It is also urged that the observations <\/p>\n
    in the matter of Kishor Gopalrao Bapat and others versus State of <\/p>\n
    Maharashtra and another, 2006(1) All MR 232  will also cover the <\/p>\n
    issue   in   respect   of   revision   of   development   plan   as   contended   on <\/p>\n
    behalf of respondent no.2 and 3.\n<\/p>\n
    6.     It   is   observed   in   the   matter   of  Shivram   S\/o.Kondaji   Sathe <\/p>\n
    and others versus State (cited supra), to which one of us (Shri.P.V.\n<\/p>\n
    Hardas, J.) is a party, relying on the observations of the judgment of <\/p>\n
    the   Apex   Court   in   the   matter   of  Girnar   Traders   Versus   State   of <\/p>\n
    Maharashtra and others, reported in (2007) 7 SCC 555 = 2007 All <\/p>\n
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\n                                                 6             Writ Petition No.11759 of 2010<\/span><\/p>\n
    SCR   2232,  wherein   it   is   observed   by   the   Apex   Court   that   the <\/p>\n
    requisite steps should be a step of acquisition of land and not a step <\/p>\n
    for acquisition of land.   The requisite steps towards commencement <\/p>\n
    of acquisition in such a situation would not include step which may <\/p>\n
    not result in actual commencement of the acquisition and is taken <\/p>\n
    merely for the purpose of seeking time so that section 127 does not <\/p>\n
    come into operation, to defeat the purpose and object of the scheme <\/p>\n
    of acquisition under M.R.T.P. Act.   The relevant paragraphs in this <\/p>\n
    judgment   are   para   no.35,   36,   38,   54   to   57   and   59   to   62.     It   is <\/p>\n
    concluded from the discussion in those paragraphs that it is clear <\/p>\n
    that the objection raised  by the respondents, can not be sustained in <\/p>\n
    Law.     It has been specifically held by the Supreme Court that the <\/p>\n
    steps under the section within the time stipulated, should be towards <\/p>\n
    acquisition of land.   It is a step of acquisition of land and not steps <\/p>\n
    for acquisition of land.   It is specifically held by the Supreme Court <\/p>\n
    that, “It is trite that failure of authorities to take steps which result in  <\/p>\n
    actual  commencement of acquisition of land  can not be permitted  to  <\/p>\n
    defeat the purpose and object of the scheme of acquisition under the  <\/p>\n
    M.R.T.P.   Act   by   merely   moving   an   application   requesting   the  <\/p>\n
    Government to acquire the land, which Government may or may not  <\/p>\n
    accept.      Any  step which may  or may  not   culminate   in the  step   for  <\/p>\n
    acquisition can not be said to be a step towards acquisition,”\n<\/p>\n
    7.     At this juncture, for clarity, it is necessary to consider the exact <\/p>\n
    text of section 127(1) of The M.R.T.P. Act, before amendment and after <\/p>\n
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\n                                              7            Writ Petition No.11759 of 2010<\/span><\/p>\n
    amendment.\n<\/p>\n
    Before Amendment :\n<\/p>\n
               Lapsing   of   reservations   :   “If   any   land   reserved,  <\/p>\n
        allotted or designated for any purpose specified in any plan  <\/p>\n
        under this Act is not acquired by agreement within ten years  <\/p>\n
        from   the   date   on   which   a   final   Regional   plan,   or   final  <\/p>\n
        Development plan comes into force or if proceedings for the  <\/p>\n
        acquisition of such land  under this Act or under the  Land  <\/p>\n
        Acquisition   Act,   1894,   are   not   commenced   within   such  <\/p>\n
        period, the owner or any person interested in the land may  <\/p>\n
        serve   notice   on   the   Planning   Authority,     Development  <\/p>\n
        Authority or as the case may be.     Appropriate Authority to  <\/p>\n
        that effect ; and  if within six months from the date of the  <\/p>\n
        service of such notice, the land is not acquired or no steps as  <\/p>\n
        aforesaid are commenced for its acquisition, the reservation,  <\/p>\n
        allotment   or   designation   shall   be   deemed   to   have   lapsed,  <\/p>\n
        and thereupon the land shall be deemed to be released from  <\/p>\n
        such reservation, allotment or designation and shall become  <\/p>\n
        available   to   the   owner   for   the   purpose   of   development   as  <\/p>\n
        otherwise,   permissible   in   the   case   of   adjacent   land   under  <\/p>\n
        the relevant plan.”\n<\/p><\/blockquote>\n
    After Amendment :\n<\/p>\n
               “Section 127 of the Maharashtra Regional and Town  <\/p>\n
        Planning Act, 1966, shall be re-numbered as sub-section (1)  <\/p>\n
        thereof; and –\n<\/p><\/blockquote>\n
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\n                                                 8             Writ Petition No.11759 of 2010<\/span><\/p>\n
                  (a)   in   sub-section   (1)   as   so   re-numbered,   for   the  <\/p>\n
          portion beginning with the words “or if proceedings for the  <\/p>\n
          acquisition   of   such   land”   and   ending   with   the   words   “if  <\/p>\n
          within   six   months”,   the   following   shall   be   substituted,  <\/p>\n
          namely :-\n<\/p><\/blockquote>\n
                 “of,   if   a   declaration   under   sub-section   (2)   of   (4)   of  <\/p>\n
          Section 126 is not published in the Official Gazette within  <\/p>\n
          such period, the owner or any person interested in the land  <\/p>\n
          may serve notice, alongwith the documents showing his title  <\/p>\n
          or interest in the said  land, or the  Planning Authority, the  <\/p>\n
          Development   Authority,   or   as   the   case   may   be,   the  <\/p>\n
          Appropriate   Authority   to   that   effect   ;   and   if   within   twelve  <\/p>\n
          months.”\n<\/p><\/blockquote>\n
                 (b)   after   sub-section   (1)   as   so   re-numbered,   the   following  <\/p>\n
         sub-section shall be added, namely :-\n<\/p><\/blockquote>\n
                 (2)   On   lapsing   of   reservation,   allocation   or   designation   of  <\/p>\n
         any land under sub-section (1), the Government shall notify the  <\/p>\n
         same, by an order published in the Official Gazette.”\n<\/p><\/blockquote>\n
    8.     On plain reading of section 127(1) of The M.R.T.P. Act, before <\/p>\n
    amendment   and   after   amendment,   one   fact   is   clear   that   the <\/p>\n
    proceedings of acquisition to be commenced within the period of 10 <\/p>\n
    years from the notification of the plan in the gazette, failing which the <\/p>\n
    reservation will lapse by virtue of the provisions of section 127.   It is <\/p>\n
    further clear that after service of notice, the steps to be taken by the <\/p>\n
    authority   within   6   months   after   the   service   of   notice   and   after <\/p>\n
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\n                                                9             Writ Petition No.11759 of 2010<\/span><\/p>\n
    amendment, the steps to be taken within the period of 12 months, <\/p>\n
    and   i.e.   towards   the   acquisition   of   land   and   not   for   acquisition   of <\/p>\n
    land.   The facts of the present writ petition clearly demonstrate that <\/p>\n
    after the notification of the year 1989, no steps were taken by the <\/p>\n
    respondent no.2 and 3 for the acquisition of the land of the petitioner <\/p>\n
    which was reserved by the Planning Authority for 21 years.   It is also <\/p>\n
    clear that after notice u\/s. 127 was issued on 28\/09\/2009, which is <\/p>\n
    served and received by respondent no.2 on 29\/09\/2009, within the <\/p>\n
    period of 12 months till 29.09.2010\/30.09.2010, no steps were taken <\/p>\n
    by respondent no.2 and 3 for acquisition of land of the petitioner, as <\/p>\n
    contemplated in Law.     From these admitted facts, the ratio as laid <\/p>\n
    down by this Court in the matter of Shivram Sathe (cited supra) will <\/p>\n
    be squarely applicable to the facts of the present petition.\n<\/p>\n
    9.     The   submissions   of   the   respondents   that   after   notice   period <\/p>\n
    was   over,   the   Planning   Authority   has   again   resolved   for   the <\/p>\n
    reservation of the said plot of land by respondent no.2 and 3, then <\/p>\n
    the question arose, because of this resolution, whether the lapsing of <\/p>\n
    the reservation will revive.   It is observed by this Court in the matter <\/p>\n
    of  Baburao   Dhondiba   Salokhe   versus   Kolhapur   Municipal <\/p>\n
    Corporation,   Kolhapur   and   another,   2003(3)   Mh.L.J.   820  that <\/p>\n
    reservation of land under Development Scheme for specific purpose <\/p>\n
    would lapse if such land is not acquired or no steps taken within time <\/p>\n
    as required u\/s. 127 of The M.R.T.P. Act.   Further it is observed by <\/p>\n
    the   Apex   Court   in   the   matter   of  Bhavnagar   University   Versus <\/p>\n
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\n                                               10           Writ Petition No.11759 of 2010<\/span><\/p>\n
    Palitana Sugar Mill Pvt.Ltd. and others, AIR 2003 Supreme Court <\/p>\n
    511,that Section 21 of the Gujarat Act (Similar to section 38 of The <\/p>\n
    M.R.T.P. Act.) which imposes statutory obligation on the part of State <\/p>\n
    and   on   the   appropriate   authority   to   revise   the   development   plan, <\/p>\n
    does not take away the right of the owner in terms of sub section 2 of <\/p>\n
    Section 20 similar to section 127 of The M.R.T.P. Act.     As per the <\/p>\n
    proposition propounded by the Apex Court when applied to section <\/p>\n
    38 and 127 of The M.R.T.P. Act, it can safely be held that the section <\/p>\n
    38 does not envisage that despite the fact that in terms of section <\/p>\n
    127,   the   designation   or   reservation   shall   lapse,   the   same,   only <\/p>\n
    because a draft revised plan is made, would automatically give rise to <\/p>\n
    revival thereof.   Section 38 does not manifest a legislature intent to <\/p>\n
    curtail or take away the right acquired by a landowner under section <\/p>\n
    127 of getting the land defreezed.\n<\/p>\n
    10.    It   is   observed   in   the   matter   of  Kishor  Gopalrao   Bapat   and <\/p>\n
    others versus State of Maharashtra and another, 2006(1) All MR <\/p>\n
    232 that lapsing of reservation in view of contingencies  mentioned in <\/p>\n
    section   127,   once   reservation   is   lapsed   in   view   of   contingencies <\/p>\n
    mentioned   in   section   127,   the   necessary   consequences   under   the <\/p>\n
    Scheme   of   127   must   follow   i.e.   the   land,   which   is   released   from <\/p>\n
    reservation   became   available   to   the   owner   for   the   purpose   of <\/p>\n
    development   as otherwise  permissible  in the  case  of  adjacent   land <\/p>\n
    under the relevant plan.   Right conferred or accrued to owner of the <\/p>\n
    land   due   to   lapsing   of   reservation   can   not   be   taken   away   by   the <\/p>\n
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\n                                                11            Writ Petition No.11759 of 2010<\/span><\/p>\n
    Planning Authority by exercising power under section 38.\n<\/p>\n
    11.    By   virtue   of   the   decisions,   which   we   have   cited   in   the <\/p>\n
    paragraphs supra, and considering the admitted facts urged before <\/p>\n
    us by both the sides, it is clear that after the notice was served by the <\/p>\n
    petitioner   on   respondent   no.2   u\/s.   127(1)   of   The   M.R.T.P.   Act, <\/p>\n
    admittedly,   no   steps   were   taken   for   acquisition   of   land   as <\/p>\n
    contemplated   u\/s.   127   of   The   M.R.T.P.   Act.       Consequently,   the <\/p>\n
    provision u\/s. 127(2) follows as the right accrued in the petitioner, <\/p>\n
    the respondents can not take away that right by simply passing the <\/p>\n
    resolution   for   the   reservation   of   the   said   land   afresh.       As   stated <\/p>\n
    earlier,   as  per   the   amended   provisions   u\/s.   127(2)   of   The   M.R.T.P.\n<\/p>\n
    Act, the Planning Authority to intimate about the de-reservation of <\/p>\n
    the property to the Government for official notification in the official <\/p>\n
    gazette.   Thus, from the admitted facts, petitioner is entitled for the <\/p>\n
    reliefs which he had claimed in terms of prayer clause ‘B’ to prayer <\/p>\n
    clause ‘D’.\n<\/p>\n
    12.    In the result, the petition succeeds.     Rule made absolute in <\/p>\n
    terms of prayer clause ‘B’ to ‘D’ of the petition and the petition stands <\/p>\n
    disposed of accordingly with no order as to costs.\n<\/p>\n
           (A.V.POTDAR, J.)                                      (P.V.HARDAS, J.)\n    khs\/FEB. 2011\/wp11759-10\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 16:52:01 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Vijaykumar vs The State Of Maharashtra on 17 February, 2011 Bench: P.V. Hardas, A. V. Potdar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-50786","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nVijaykumar vs The State Of Maharashtra on 17 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijaykumar-vs-the-state-of-maharashtra-on-17-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijaykumar vs The State Of Maharashtra on 17 February, 2011 - 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