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2017 Supreme(Bom) 2292
IN THE HIGH COURT OF BOMBAY
Vasanti A Naik, Riyaz I. Chagla, JJ.
Shri Popat Kisan Mhaske and anr. - Petitioners
Versus
The Hon'ble Minister for Urban Development State of Maharashtra, Mantralaya, Mumbai and others - Respondents
Writ Petition No. 7939 of 2016
Decided On : 29-11-2017
For the Petitioner:Ms. Smita R. Gaidhani, Advocate
For the Respondent:Mr. Vishwajeet Sagare, AGP., Mr. Murlidhar L. Patil, Advocate
The main legal point established is that under Section 127(2) of the Maharashtra Regional and Town Planning Act, 1966, if the land is not acquired within the stipulated period, the reservation is deemed to have lapsed, and the authorities must act accordingly.
Headnote:
Reservation Lapse - Maharashtra Regional and Town Planning Act, 1966 - Section 127(2)
Fact of the Case:
The Petitioners sought a court order directing the Respondent to notify the lapse of reservation of their land under the Maharashtra Regional and Town Planning Act, 1966. The land was reserved for a public purpose in 1993, but the reservation had not been acted upon for over 18 years.
Finding of the Court:
The court found that the reservation had lapsed as the Respondents had not acquired the land within the stipulated period, and therefore ordered the Respondents to notify the lapse, quashed the refusal certificate for building permission, and directed the Respondents to delete the land from the reservation and decide the building permission application.
Issues: The main issues were the validity of the purchase notice, the rejection of the de-reservation, and the refusal of building permission by the Respondents.
Ratio Decidendi: The court held that the reservation lapsed as the land was not acquired within the stipulated period, and the rejection of de-reservation and refusal of building permission were illegal and bad in law.
Final Decision: The court ordered the Respondents to notify the reservation lapse, quashed the refusal certificate, directed the deletion of the land from reservation, and instructed the Respondents to decide the building permission application.
Riyaz I. Chagla J.
Rule. Rule made returnable forthwith. Heard by consent.
2. The Petitioner by this Writ Petition is seeking an order and direction from this Court, directing the Respondent to notify by order published in Official Gazette as per Section 127(2) of the Maharashtra Regional and Town Planning Act, 1966 (for short "the said Act") that the reservation, allocation or designation of the Petitioners land viz. Survey No. 7A (Part), Hissa No. 1+2+3/2A of Chehedi village in Nashik Municipal Corporation limits (for short "the said land") has lapsed. The Petitioners are further seeking the quashing and setting aside of the order/letter dated 27th May 2015 issued by Respondent No. 6 and the Refusal Certificate dated 28th May 2015/1st June 2015 issued by Respondent No. 5 thereby refusing building permission to the Petitioners. The Petitioners have also sought the deletion of the Petitioners land from reservation as shown in Draft Development Plan published in May 2015.
The brief background of facts is necessary
3. The Petitioners are the co-owners of the said land in village Chehedi in Nashik Municipal Corporation (for short "NMC") limits. The said land of the Petitioners is their ancestral property and has been in their possession, occupation and use since their forefathers. The said land of the Petitioners was reserved in the sanctioned development plan of Nashik city of 1993, for the purpose of "High School and Primary School". However, despite a lapse of more than 18 years, the said land of the Petitioners was not acquired by the NMC for using it for the reserved public purpose.
4. The Petitioners required the said land for development. As more than 10 years had lapsed from the date of sanction of the final development plan and the land had not been acquired, the Petitioners issued purchase notice dated 3rd March 2014 to the Respondents under Section 127 of the said Act. The Petitioners called upon the Respondents to acquire the said land within the period stipulated under Section 127 of the said Act. The notice was delivered on the same day to the addresses of the Respondents. By letter dated 2nd April 2014, the NMC informed the Petitioners that if the Petitioners were ready to handover the reserved plot of land to the NMC, then the Petitioners would be granted TDR after entering into an agreement to that effect. The Petitioners by their letter dated 11th April 2014 informed NMC that they were not desirous of taking the TDR and that the Respondents should initiate proceedings under the Land Acquisition Act, within the stipulated period. The Petitioners by letter dated 21st April 2014 addressed to NMC forwarded the documents as required. The Petitioners had reminded the Respondents that the time stipulated under Section 127 of the said Act run from the date of purchase notice. The Petitioners also pointed out the errors in the reservation and requested the Respondents to initiate action to correct the said mistake.
5. The Respondents had neither acquired nor taken any steps contemplated under Section 127 of the said Act for acquisition of the said land within the stipulated period of 12 months from the date of service of the purchase notice. Hence, the reservation deemed to have lapsed and the Government ought to have been published a notification as per Section 127(2) of the said Act, in Official Gazette de-reserving the said land. The Petitioners accordingly gave an intimation to the Respondents about the deemed de-reservation vide their letter dated 3rd March 2015 as the reservation of the said land had lapsed on 2nd March 2015. However, despite receiving the said letter, and much after the deemed de-reservation of the said land on 3rd March 2015, a letter dated 19th March 2015 was received by the Petitioners from the Estate Officer, NMC, whereby it was stated that the proposal for acquisition was forwarded by the said office to the District Collector on 22nd December 2014. The Petitioners vide their letter dated
