Madhav Raghunath Thatte and others vs Director, Directorate of Town Planning, Maharashtra State & others Maharashtra State and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1998 Supreme(Bom) 600

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.D. Mane A.B. Palkar, JJ.
Madhav Raghunath Thatte others ..... Petitioners.
Versus
Director, Directorate of Town Planning,
Maharashtra State others ..... Respondents.
Writ Petition No. 225 of 1989, decided on 10-7-1998.
Advocates appeared:
G. Karmarkar with ADSURE, for petitioners.
S.K. Tambe, Asst. G.P., for respondents Nos. 1 and 3.
Anil Kasliwal, for respondent No. 2.

Headnote:Sections 49 and 127-Release of land from acquisition-Land reserved for public purposes in Development Plan under Act-After 17 years of such plea Municipal Council passed resolutions that land in question no longer required for Development Plan-No steps for acquisition taken within ten years of plan nor within six months of service of purchase notice, by planning authority-Held, reservation of land lapsed and hence land released from reservation.-It is an admitted position that the planning authority failed to take steps within six months from the date of service of the purchase notice. There is also no dispute that the planning authority also filed to take steps for acquisition within 10 years from the date of coming into force of the sanctioned final Development Plan, which, in the instant case, came into force on 16.8.1975. Therefore, it is a clear case whether there is failure to take steps as required by the provisions of Section 127 read with Section 126(1) of the Act. The Apex Court in the case cited has held that according to the plain reading of Section 127 of the Act it is manifest that the question whether the reservation had lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by Section 127 is a mixed question of fact and law. It was further held that there was no question of period of six months being reckoned from the date of the receipt of the information requisitioned. Having failed to take any step namely: of making an application to the State Government for requiring the land under the Land Acquisition Act within a period of six months from the date of service of the purchase notice, the impugned notification issued by the State Government under Section 6 of the Land Acquisition Act making the requisite declaration that such land was required for a pub lie purpose i.e. for a recreation ground was invalid, null and void. The Apex Court further held that the period of six months provided by Section 127 upon expiry of which the reservation of the land under Development Plan lapses is a valuable safe-ground to a citizen against arbitrary and irrational execution action.
Section 127 of the Act is a fetter upon the power of eminent domain. Section 127 of the Act is a part of the law of acquisition of lands required for public purpose namely; for implementation of schemes of town planning. The statutory bar created by Section 127 providing for reservation of land under development scheme lapse if no steps are taken for acquisition of land within a period of six months from the date of the service of the purchase notice, is an integral part of the machinery created by which acquisition of the land takes place. In Courts considered opinion in he facts and circumstances of the present case also the reservation of land of the petitioners has lapsed.

JUDGMENT - A.D. MANE, J.:---In the draft Development Plan, the land Survey No. 52 i.e. City Survey No. 2000/A, present plot No. 44 was shown reerved for stadium and public garden. The Development Plan of City of Shrirampur was finalized and sanctioned by the State Government on 16-8-1975. Thereafter, it appears that the writ land was again reserved for playground in the draft development plan.

2.This writ petition is filed by the owners in possession of the said land on 7-4-1987 inter alia seeking a Writ of Certiorari or a writ order or direction in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the respondents to treat the petitioner's land as released from the reservation in the Development Plan and further sanction the development permission asked for by the petitioners along with the letter dated 25-7-1986 at Exhibit D and to restrain the respondents by themselves, their agents or servants by an order of injunction from taking any steps in furtherance of the Development Plan so far as it relates to the land of the petitioners.

3.On behalf of the respondent No. 2 the Municipal Council, Shrirampur affidavit in reply has been filed by one Shri Pratap Narayan Mujumdar, who is Arbitrator, Town Planning Schemes, Shrirampur. In para 4 of the reply an explanation is offered as to why steps were not taken within 10 years from the date of coming into force of the Development Plan. It is, however, stated that the assumption of the petitioners that their land stood released from the development plan is not correct. The land stands reserved in the final Development Plan and the Town Planning Scheme of No. IV of Shrirampur. Lastly it has been submitted that the notice under section 127 of the Maharashtra Regional and Town Planning Act, served by the petitioners was not a valid notice and therefore, the petition deserves to be dismissed.

4.In this context, it is relevant to mention that the petitioners have filed two documents, namely: the Resolutions passed by the Shrirampur Municipal Council on 21-10-1992 and 21-6-1993 resolving that the lands in question are no longer required by the Municipal Council under the Development Plan.

5.Mr. Adsure, learned Counsel for the petitioners, submits that the present case squarely falls within the ratio of decision of the Apex Court in the case of (Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association)1, 1988(1) Bom.C.R. 578 The learned Counsel submits that failure to take steps within six months from the date of receipt of the purchase notice by the petitioners, reservation has lapsed as provided in section 127 read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 (for short the 'Act'). It is also submitted that in view of the resolutions passed by the Municipal Council. Shrirampur, as referred to above the Municipal Council has deliberately failed to take steps either to acquire the land by agreement within ten years from the date of final development plan or final regional plan which came into force on 16-8-1975 or taking proceedings for acquisition as such under the Act or under the Land Acquisition Act, 1894.

6. Mr. Anil Kasliwal, learned Counsel appearing for the respondent No. 2, however, urged that the notice under section 127 of the Act was addressed to the Arbitrator and not to the planning authority, although copy of the notice was served on the planning authority namely: Shrirampur Municipal Council and therefore, the notice is not a valid notice and as such the writ petition is not tenable. The learned Counsel for the respondent No. 2, however, does not dispute about passing of the aforesaid two resolutions by the Municipal Council resolving that the lands shown reserved in the Town Planning Scheme was no longer required by the Municipal Council.

7.In the first place, it is an admitted position that the planning authority failed to take steps within

Click Here to Read the rest of this document