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2013 Supreme(Bom) 1186
In the High Court of Bombay at Nagpur
B.P. DHARMADHIKARI & A.S. CHANDURKAR, JJ.
Arun Motiram Nimkar & Others
Versus
The Municipal Corporation of City of Amravati & Others
Writ Petition Nos.5589 of 2012, 6305 of 2012, 6306 of 2012, 6309 of 2012 & 6310 of 2012
Decided on: 03-07-2013
For the Petitioners:G.K. Mundhada, Advocate.
For the Respondents:R1 & R2, J.B. Kasat, Advocate, R3, P. D. Kothari, Assistant Government Pleader.
Headnote:Maharashtra Regional and Town Planning Act, 1966 - Section 127(1) and 127(2) - Lapsing of reservation of lands. - Lapsing of reservation of lands, comes into force immediately after pronouncement by Court under Section 127 of Act that reservation lapsed. - It is clear from a reading of Section 127(1) of the said Act that the same contains a deeming provision namely that after a lapse of 10 years where the planning authority or the development authority or the appropriate authority fails to take steps to acquire the said land, then the land owner is required to serve a notice on such authority and if within 12 months from the date of service of such notice, the land is not acquired or no steps are commenced for its acquisition, the reservation shall be deemed to have lapsed. It is further clear that on such lapsing of reservation, the land is deemed to be released from such reservation and it becomes available to the owner for the purposes of development as otherwise permissible in the case of adjacent land under the relevant plan. The reservation lapses under Section 127(1) of the said Act on account of the inaction on the part of the Planning Authority or other concerned Authority as the case may be. It is only on account of such inaction that the owner or any person interested is required to approach the Court to obtain such declaration. It is thus, clear that the deeming fiction in Section 127(1) of the said Act occurs on fulfillment of conditions mentioned therein and on release of such land from reservation, it becomes immediately available to the owner for the purposes of development in accordance with law.
In so far as sub-section (2) of Section 127 is concerned, same requires the Government to notify the lapsing of reservation by publishing the same in the Official Gazette. Notifying such lapsing is required to be done for the purposes of indicating that the reservation on the particular land has ceased to exist. The act of notifying such lapsing has got nothing to do with releasing of such land from reservation as a consequence of operation of Section 127(1) of the said Act. This is further clear from the latter part of the provisions of Section 127(1) of the said Act which state that on the reservation having been deemed to have lapsed, the land shall be deemed to be released from such reservation and shall become available to the owner for the purpose of development. The object behind notifying such lapsing appears to be to bring to the notice of public at large that a particular reservation has lapsed. Section 127(2) of the said Act operates after lapsing of reservation and development of said land is not dependant on such lapsing being notified in the Official Gazette.
The Court has pronounced under Section 127 of the said Act that the reservation in question has lapsed, such lapsing comes into force immediately and the land owner cannot be asked to await publication of such lapsing in the Official Gazette under the provisions of Section 127(2) of the said Act to enable him to develop his land in accordance with law.
(A.S. Chandurkar, J.)
1. Rule. Rule is made returnable forthwith and heard by consent of the parties.
2. Heard Shri G. K. Mundhada for the petitioners, Shri J. B. Kasast Advocate for the respondent nos.1 & 2 and learned Assistant Government Pleader for the respondent no.3.
3. A common question namely “on the Court pronouncing under Section 127 of the Maharashtra Regional & Town Planning Act, 1966 that the reservation has lapsed, whether such lapsing cannot come into force till publication of Gazette Notification as contemplated by Section 127(2) of the said Act” arises for determination in all these writ petitions. Hence, we have heard respective Counsel and all the writ petitions are being disposed of by this common judgment.
4. The undisputed facts show that the respective lands owned by the petitioners were the subject matter of reservation under a development plan of the City of Amravati. Each of the petitioners had initially approached this Court seeking a declaration of lapsing of reservation in view of inaction on the part of planning authority in acquiring the said lands for the purpose for which they were reserved. This Court had in the respective writ petitions declared that the reservation had lapsed under the provisions of Section 127(1) of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as the said Act). The adjudication by this Court that the reservation in question had lapsed, has attained finality. The respective writ petitions, the site number of reservation and the date of decision of the respective writ petitions are as under:-
Sr.No. Writ Petition No. Survey No. Reservation Date of Judgment.
Site No.
1. W.P.No.5589/2012 S.No.137, mouza Site No.321 for W.P.No. 6084/2011,
Badnera, Nazul High School. decided on 26-4-2012
Sheet No.17-B.
2. W.P.No.6305/2012 S.No.78, mouza Site No.459, W.P.No.3189 /2011,
Peth Amravati, 460 for Higher decided on 10-1-2012
Sub Divn.No. 1-A, Secondary
0.37R School &
Primary School.
3. W.P.No.6306/2012 S.No.7, Mouza Site No.247 – W.P.No.1157 /2012,
Benoda Veg Market, decided on 6-7-2012
248- Primary
School. 249–
Hospital,
Maternity
Home.
4. W.P.No.6309/2012 S.No.78, Sub Divn Site W.P. No.3189/11,
1A 0.76R No.459,460, decided on 10-1-2012.
Higher
Secondary &
Primary
School.
5. W.P.No.6310/2012 S.No.26, Sub-Divn Site No.128, W.P.No.1068 /2011,
2B, 1H 76R, Primary decided on 3-8-2011.
Mouza Masala School.
Nandgaonpeth.
5. Each of the petitioners, after declaration by this Court as regards lapsing of reservations, had applied to the respondent nos.1 & 2 seeking permission to develop their lands as permissible in law. The respondent no.2 has amongst other grounds refused to grant permission to develop the respective lands on the ground that the lapsing of reservation under Section 127(1) of the said Act has not been notified in the Official Gazette as required by the provisions of Section 127(2) of the said Act. In view of aforesaid rejection of permission to develop the respective lands, the petitioners have approached this Court praying that they be permitted to develop their lands in accordance with law. In these writ petitions, we are concerned only with the question as to whether such lapsing, after the same has been pronounced by the Court, is required to be notified in the Official Gazette before permission to develop such lands as granted. We have not gone into the other reasons for rejection of permission to develop the respective lands.
6. Shri G. K. Mundhada learned Counsel for the petitioners contends that this Court having already declared the reservation to have lapsed, it was incumbent upon the respondent nos.1 & 2 without awaiting for notification of such lapsing under Section 127 (2) of the said Act to have permitted its development. It was further contended that the statutory period of 60 days having elapsed from the date of submitting the application for development, such application was deemed to have been granted in terms of Section 45 of th
