2012 Supreme(Bom) 1299

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
S.C. DHARMADHIKARI & M.T. JOSHI, JJ.
Ravikant Lakshminarayan Zanwar – Appellants.
Vs.
The State of Maharashtra & Ors. – Respondent
Writ Petition No. 961 of 2012.
Decided On : 18th July, 2012.

Headnote:Maharashtra Regional and Township Planning Act, 1966 - Section 127 - Lapse of reservation.

       Reservation of land for public purpose cannot be allowed to be lapsed for want of funds. - Very recently the Hon’ble Supreme Court in case of Girish Vyas and another v. State of Maharashtra and others, AIR 2012 SC 2043 : 2012 (5) All MR 392 (SC) has held as under :

       "151. As we have seen, the MRTP Act gives a place of prominence to the spaces meant for public amenities. An appropriately planned city requires good roads, parks, playgrounds, markets, primary and secondary schools, clinics, dispensaries and hospitals and sewerage facilities amongst other public amenities which are essential for a good civil life. If all the spaces in the cities are covered only by the construction for residential houses, the cities will become concrete jungles which is what they have started becoming. That is how there is need to protect the spaces meant for public amenities which cannot be sacrificed for the greed of a few landowners and builders to make more money on the ground of creating large number of houses. The MRTP Act does not give importance to the spaces reserved for public amenities, and makes the deletion thereof difficult after the planning process is gone through, and the plan is finalized. Similar are the provisions in different State Acts. Yet, as we have seen from the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical Trust (supra) and Lucknow (M.I. Builders Pvt. Ltd. (supra), and now as is seen in this case in Pune, the spaces for the public amenities are under a systematic attack and are shrinking all over the cities in India, only for the benefit of the landowners and the builders. Time has therefore come to take a serious stock of the situation. Undoubtedly, the competing interest of the landowner is also to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for public purpose after following the due process of law, the interest of the individual must yield to the public interest."

       "152. As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities.......... The Government and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to only in the rarest of rare cases, and after fully examining as to why the concerned plot was originally reserved for a public amenity, and as to how its deletion is necessary. Otherwise, it will mean that we are paying no respect of the efforts put in by the original planners, who have drafted the plan, as per the requirements of the city, and which plan has been finalized after following the detailed procedure as laid down by the law."

       "153. Having noted as to what has happened in the present matter; in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in turn with the spirit behind.

       (i)..................

       (ii).................

       (iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, inasmuch as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, inasmuch as these public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani v. State of Maharashtra, reported in (2005 (11) SCC 222)’’.

       "154. Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act, 1947. Again, to state the reality, even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall endeavour to provide, within the period often years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendment to the Constitution effected in the year 2002 deleted this Article 45, and substituted it with new Article 45 which lays down that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. They amendment has made Right to Education a Fundamental Right under Article 21-A. This Article lays down that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. In the year 2009 we passed the Right to Children to Free and Compulsory Education Act, 2009. All these laws have however not been implemented with the spirit with which they ought to have been. We have several national initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary Education Programme and the Universal Elementary Education Programme to name a few. However, the statistical data shows that we are still far away from achieving the goal of full literacy."

       Court hopes that every body would now be aware of their primary responsibility of subserving public good and upholding public interest. Appropriate Authorities to act in accordance with the law laid down by the Hon’ble Supreme Court, which is binding on all.

       Maharashtra Regional and Township Planning Act, 1966 - Section 127 - Lapse of reservation.

       Where land reserved was not acquired within period of one year from date of notice under Section 127 of Act therefore Reservation Lapses. - After hearing the counsel for respective parties what is found is that the period that is contemplated, namely, 10 years from the date of sanction of the plan, came to an end on 24.2.2003. Thereafter a notice was served on 29.12.2010. That notice is duly received and from the date of service of the said notice, the period of 12 months came to an end on 28.12.2011.

       Within such period the declaration under Section 6 of the Land Acquisition Act was not issued. The law in this regard is well- settled that the steps that are contemplated by Section 127 even after its amendment is, that the declaration under Section 6 of the Land Acquisition Act, 1894 is required to be issued and published. That has not been done within the period prescribed, namely on or before 28.12.2011. It is not seriously disputed that the reservation lapses in terms of the statutory provision and the land has to be restored to the petitioner.

       MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966 - Section 127 - Lapse of reservation of land. Where after notice under Section 127 of Act, land was not acquired within period of 12 months therefore reservation of land lapsed.