Shantaram Shankar Jamsandekar vs State of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2014 Supreme(Bom) 2004

IN THE HIGH COURT OF BOMBAY
Abhay Shreeniwas Oka and G.S. Kulkarni, JJ.
Shantaram Shankar Jamsandekar - Appellant
Vs.
The State of Maharashtra - Respondent
Writ Petition No. 313 of 2012 and Public Interest Litigation No. 41 of 2010
Decided On: 13.10.2014

Advocates:
Advocate Appeared:
For Appellant/Petitioner/Plaintiff: N.V. Bandiwadekar i/b Prashant Bhavake and R.P. Walvekar
For Respondents/Defendant: V.P. Malvankar, AGE 'A' Panel and S.S. Patwardhan

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Sections 37 and 127(1) Land Acquisition Act, 1894, Section 6 Modification of Development Plan. - Municipal Corporation may take action under Section 37 for modification of development plan when Notification under Section 6 of L.A. Act was not issued. - A perusal of the agreements entered into between the petitioner and the said third party does not indicate that the same are in the nature of a sale deed so as to transfer the ownership interest of the petitioner. The petitioners being owner of the lands in question were entitled to issue a purchase notice under Section 127 of the MRTP Act to the respondent No. 3. The petitioners had admittedly issued a purchase notice dated 11.3.2010 and 12.3.2010 in respect of the said lands calling upon the respondent No. 3 to acquire the said land. It is not in dispute that these purchase notices were received by respondent No. 3. It is an admitted position that the lands were kept under reservation and these lands were not acquired for 10 years from the commencement of the final development plan which commenced on 18.2.1999. Therefore, on receipt of the purchase notice from the petitioners under Section 127 of the MRTP Act respondent No. 3 was under an obligation to initiate acquisition proceedings to acquire the land for the purpose for which they were reserved. It is clear from the affidavit filed on behalf of the respondent No. 3 as also the letter dated 17.2.2012 of respondent No. 3 issued to the petitioner under the Right to Information Act, 2005, that no steps for acquisition of the land were taken by issuance of a notification under Section 6 of the Land Acquisition Act within a period of one year from the receipt of the purchase notice dated 11.3.2010 and 12.3.2010 of the petitioners. The obvious legal consequence therefore, will be that the reservation would lapse by operation of the provisions of the Section 127 of the MRTP Act.
It is well-settled that the steps for commencement of acquisition proceedings would be issuance of a notification under Section 6 of the Land Acquisition Act read with Section 126 (4) of the MRTP Act which the respondent No. 3 had failed to issue within the stipulated period of one year from the receipt of the purchase notice. It would be therefore, required to be held that the reservation in respect of this land had lapsed on account of this inaction of respondent No. 3 to issue a Section 6 notification under the Land Acquisition Act.
Maharashtra Regional and Town Planning Act, 1966 - Section 127 Land Acquisition Act, 1894, Section 6 Lapse of reservation of land. Non-issuance of notification under Section 6 of Land Acquisition Act by respondent-authorities, within one year from receipt of notice issued by petitioner under Section 127, renders reservation of land lapsed.

Judgment

G.S. Kulkarni, J.

Both these petitions are heard together as the controversy in both these petitions concerns reservation in respect of land bearing R.S. No. 779/2.

WRIT PETITION NO.313 OF 2012

1. By this Petition under Article 226 of the Constitution of India the petitioners pray for a direction that the reservation in respect of land bearing R.S. No. 779/2, situate at B Ward, Kasba Karveer, Taluka and District Kolhapur being reservation Nos. 250 and 251, in the second revised final development plan for Kolhapur, has lapsed as per the provisions of Section 127(1) of the Maharashtra Regional Town Planning Act, 1966 (for short MRTP Act) and that the respondents be directed to permit the petitioner to develop the said land.

2. Petitioners nos. 1 to 12 are the owners of land bearing R.S. No. 779/1 situate at B Ward, Kasaba Karveer, Taluka and District Kolhapur and Petitioner nos. 13 to 15 are owners of survey No. 779/2 (Both lands for short referred as "said lands"). Respondent no. 1 by an order dated 18.2.1999 sanctioned the 2nd revised final development plan for Kolhapur city under Section 31 of the MRTP Act. In this development plan the said lands were reserved for "a garden" namely reservation No. 251 and some area was reserved for a "hospital" being reservation No. 250. The lands are in the nature of open and vacant lands and for the present there is no income or production from the said land to the petitioners. On account of the reservation, the petitioners could not undertake development of the said lands as also they were not getting any consideration for sale as per the market rate.

3. It is the petitioner's case that the respondent no. 3 (Kolhapur Municipal Corporation) was to develop these lands in the year 2003 and 2006. However, the respondent no. 3 did not take any steps in that regard for acquisition of the said lands.

4. It is the petitioner's case that a period of ten years from the commencement of the development plan had already passed and that during this period the respondent no. 3 did not take any steps to acquire the said lands. The petitioner therefore served a purchase notice dated 11.3.2010 on respondent no. 3 alongwith the documents showing their title. The notice inter alia recorded the period for which the land was kept under reservation and that no steps for acquisition of the said lands were taken. The respondent no. 3 Municipal Corporation which was the planning authority was called upon to acquire the lands within a period of one year from the date of receipt of the said notice failing which the reservation would deem to have lapsed and the said lands would automatically come within residential zone. It is the petitioner's case that this notice was received by the respondent no. 3 on 15.3.2010. Another notice dated 12.3.2010 was addressed by the petitioners to the respondent no. 3. It is the petitioner's case that despite receipt of the purchase notice dated 11.3.2010 and 12.3.2010 the respondents failed to take any steps to acquire the said lands within a period of one year from the date of receipt of the purchase notice and hence the reservation had lapsed by operation of section 127 under the MRTP Act. The petitioners therefore addressed a letter dated 31.3.2011 to the respondent no. 3 requesting for no objection certificate for development of the lands since the reservation had lapsed. Petitioners state that however no decision was taken on the same by respondent no. 3. The petitioners therefore, again submitted a representation dated 20.7.2011 requesting for issuance of a no objection certificate in favour of the petitioners in view of the reservation having lapsed. As no action was taken the petitioners made a further representations dated 9.9.2010 and 21.10.2010 reiterating their request for the issuance of a no objection certificate for development of the land. The petitioners have ultimately filled the present Writ Petition.

5. After filing of this writ petition the petitioners submitted

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2014 Supreme(Bom) 2004

IN THE HIGH COURT OF BOMBAYAbhay Shreeniwas Oka and G.S. Kulkarni, JJ.Shantaram Shankar Jamsandekar - AppellantVs.The State of Maharashtra - RespondentWrit Petition No. 313 of 2012 and Public Interest Litigation No. 41 of 2010Decided On: 13.10.2014

Cases Referred (1)

IN THE HIGH COURT OF BOMBAY
Abhay Shreeniwas Oka and G.S. Kulkarni, JJ.
Shantaram Shankar Jamsandekar - Appellant
Vs.
The State of Maharashtra - Respondent
Writ Petition No. 313 of 2012 and Public Interest Litigation No. 41 of 2010
Decided On: 13.10.2014