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2014 Supreme(Bom) 1788
High Court of Judicature at Bombay
A.S. OKA & G.S. KULKARNI, JJ.
Vikramsinh Jaysingrao Ghatge
Versus
The Municipal Council & Others
Writ Petition No. 1226 of 2011
Decided On : 06-10-2014
For the Petitioner:A.A. Kumbhakoni Sr. Advocate i/b V.B. Rajure, Advocate.
For the Respondents:R1, Tanaji Mhatugade, R3, R4, V.S. Gokhale, AGP, R5, R6, Rajendra P. Gurjar i/b M.V. Kini & Co., Advocates.
Headnote:Maharashtra Regional and Town Planning Act, 1966 - Sections 126(4) and 127 Land Acquisition Act, 1894, Section 6 Lapse of reservation of land. - Where respondent-authorities taken no steps to acquire land, reserved in year 1986 despite receipt of notices under Section 127 issued by petitioner in year 2003, 2004 and 2009 therefore reservation of land lapsed. - It appears to be an admitted position that after receipt of these letters of the petitioners calling upon the respondents to acquire the petitioner’s land no steps have been taken by the respondents to acquire the said land of the petitioner for the said public purpose for which they were reserved which would be by issuance of a notification under Section 6 of the Land Acquisition Act read with Section 126(4) of the MRTP Act, though belated by some movement in that direction was resorted. The obvious consequence of not initiating steps within the stipulated period of six months would be, that by operation of Section 127 of the MRTP Act the reservation of the petitioner’s land would lapse being a consequence contemplated by Section 127 of the MRTP Act.
The underlying principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. The steps taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not a step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the government to acquire the land which Government may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition.
In the present case, admittedly a Section 6 Notification under the Land Acquisition Act was not issued and hence adverting to the principles of law laid down by the Supreme Court in the aforesaid decisions it would be required to be held that reservation of the land in question had lapsed by operation of Section 127 of the M.R.T.P. Act, 1966.
Maharashtra Regional and Town Planning Act, 1966 - Section 127 Purchase notice under. - Purchase notice issued under Section 127 of Act, contemplates an intimation that land reserved for 10 years from commencement of development plan, not acquired by an agreement. - Reservation under development plan was imposed on petitioners land in 1986, respondent authorities however did not initiate steps to acquire suit land petitioners served respondent with letters calling upon them to acquire the land for which they were reserved receipt of these letters not disputed.
A perusal of said letters and addressed by the petitioner to the respondents clearly indicate the intention of the petitioner to intimate the planning authority that the land of the petitioner is kept under reservation from the commencement of the development plan and the same is not acquired by an agreement and that the authorities should acquire the land of the petitioner for the said public purpose and pay compensation to the petitioner in that regard.
Considering the language by Section 127 it would be inappropriate to say that these letters cannot be construed to be a notice under Section 127 of the MRTP Act, the intention of the petitioner is borne out in these letters of the petitioner which is in conformity and in terms of Section 127 of the MRTP Act, in as much as, the word ’notice’ in this provision would contemplate an intimation that the land which is kept under reservation for ten years from the commencement of the development plan or approved plan has not been acquired by an agreement.
Section 127 does not contemplate any particular form in which a notice to that effect is required to be given by the owner of the land. It is noteworthy that these letters were never objected by the respondents on this ground that these letters are not purchase notices. In fact A perusal of resolution No. 47 passed by the respondent No. 1 clearly shows that respondent had treated these letters as an intimation under Section 127 of the MRTP Act for acquisition of the land and payment of compensation as resolution, the respondent had expressed its inability to acquire the land due to financial difficulties and the objection raised that said letters cannot be treated as purchase notice under Section 127, for first time in affidavit reply filed by respondent be sustained.
G.S. Kulkarni, J.
1. Rule returnable forthwith. Respondents waives service. By consent of the learned counsel for the parties and at their request taken up for final hearing.
2. By this Petition under Article 226 of the Constitution of India the Petitioner has prayed that the reservation nos.8 and 9 made in the development plan of the year 1986 of the Kagal Municipal Council, District Kolhapur for the purpose of extension of Maharashtra State Electricity Board (MSEB) and for a primary school and a play ground in respect of the petitioner's land, being survey No.247/3/1 situated at Kagal District Kolhapur be quashed and set aside. It is further prayed that the respondents be directed to permit the petitioner to undertake development of the land.
The facts in brief are :
3. The Petitioner is the owner of the land bearing R.S.No.247/2/1 admeasuring 3 hectares situated at Kagal (for short the land). The Government in its Urban Development Department had sanctioned a revised development plan for Kagal Municipal Council under the provisions of the Maharashtra Regional Town Planning Act, 1966 (for short MRTP Act) vide Notification dated 29.8.1986 which came into force on 15.10.1986. As per the sanctioned development plan, the petitioner's land, was partly reserved under site no.8 and 9 for the purpose of “extension for MSEB” and “primary school” and playground respectively. The area under reservation was 0.72 ares for each of the said reservation.
4. It is the petitioner's case that since the year 1986 from when the said reservation under the development plan is imposed on the petitioner's land the 1st respondent did not take any steps to acquire the petitioner's land, for public purpose for which it was reserved. As the reservation lasted for almost 24 years with no acquisition proceedings initiated by respondent no.1-planning authority, the Petitioner by its letter dated 7th April/May, 2003 called upon the 1st respondent to take possession of the petitioner's land and pay compensation to the petitioner failing which it would be presumed that the 1st respondent do not require the petitioner's land and hence further proceedings would be initiated. This letter was addressed in respect of the reservation no.9 i.e. for primary school and playground.
5. On 12.5.2003 the 1st respondent passed a resolution considering the said letter issued by the petitioner inter alia recording that in respect of reservation no.9 the petitioner had issued a purchase notice under section 127 of the MRTP Act requesting the 1st respondent to acquire the petitioner's land for the said public purpose. It was recorded that in view of the weak financial position of the 1st respondent and considering other factors it is in the interest of 1st respondent that the reservation is cancelled. It was merely resolved that appropriate steps in this regard be taken up for amendment of the development plan.
6. The petitioner issued another letter dated 12.7.2004 to the 1st respondent in respect of reservation no.8 namely of extension for MSEB requesting the respondent no.1 to take possession of the land reserved for that purpose and pay compensation to the petitioner failing which it would be presumed that the respondent no.1 does not require the land and further proceedings would be then adopted by the petitioner. The petitioner thereafter addressed another letter dated 27.2.2004 to the Collector, Kolhapur giving a reference to the letter dated 7.5.2003 issued to the 1st respondent and called upon the 1st respondent to acquire the petitioner's land under reservation no.9. It was stated that the 1st respondent had passed a resolution that it is not in a financial position to acquire the petitioner's land. It was stated that as the reservation continued for about 30 years the petitioners could not develop the said land. It was therefore, requested that immediate steps be taken to take possession of the petitioner's land and pay compensation or cancel the reservati
