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2017 Supreme(Bom) 2390
IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
S.C. DHARMADHIKARI, MANGESH S. PATIL, JJ.
Kashinath - Appellant
Vs.
The State of Maharashtra and Ors. - Respondents
Writ Petition Nos. 1229 and 1256 of 2017
Decided On : 03-08-2017
For the Appellant :V.D. Sapkal, Advocate.
For the Respondents: D.R. Kale, AGP.
The main legal point established in the judgment is the requirement of a declaration for acquisition of land under Section 127 of the MRTP Act and the legal consequences of the failure to take steps for acquisition within the statutory period, leading to the lapse of reservation.
Headnote:
Reservation Lapse - Land Reservation - Maharashtra Regional Town Planning Act, 1966, Section 127 - The court discussed the provisions of Section 127 of the MRTP Act and the legal consequences of the failure to take steps for acquisition of land within the statutory period. The court highlighted the interpretation of the word 'steps' and the requirement of a declaration under Section 6 of the Land Acquisition Act, 1894 or similar provision under Maharashtra Act No. XXIII of 2013. The court's decision was influenced by the legal principles established in the cases of Girnar Traders v. State of Maharashtra and Shrirampur Municipal Council v. Satyabhamabai Dawkher, emphasizing the necessity of a declaration for acquisition of land and the lapse of reservation in the absence of such declaration.
Fact of the Case:
The petitioners sought a writ of mandamus to declare that the reservation of their land had lapsed due to the Planning Authority's failure to take steps for acquisition within the statutory period stipulated by Section 127 of the MRTP Act. The petitioners had issued a purchase notice under that provision after the statutory period expired.
Finding of the Court:
The court found that the Planning Authority had not taken steps for acquisition of the petitioners' lands within the statutory period, and the subsequent actions by the authority did not fulfill the requirements under Section 127 of the MRTP Act. The court also noted the admission of facts by the respondent Municipal Council and the State Government, supporting the petitioners' claims.
Issues: The main issue was whether the reservation of the petitioners' land had lapsed due to the Planning Authority's failure to take steps for acquisition within the statutory period stipulated by Section 127 of the MRTP Act.
Ratio Decidendi: The court's decision was based on the interpretation of the provisions of Section 127 of the MRTP Act and the legal consequences of the failure to take steps for acquisition of land within the statutory period. The court emphasized the necessity of a declaration for acquisition of land and the lapse of reservation in the absence of such declaration.
Final Decision: The court granted the reliefs as prayed for by the petitioners, declaring that the reservation on the petitioners' lands had lapsed due to the Planning Authority's failure to take steps for acquisition within the statutory period stipulated by Section 127 of the MRTP Act.
Mangesh S. Patil, J.
1. Rule. Rule is made returnable forthwith. Heard finally with the consent of parties.
2. A common question in these sister writ petitions that arises for consideration is as to whether on the facts of these cases can it be declared that the reservation imposed on the petitioners' land has lapsed due to the failure of the Planning Authority to take steps within the statutory period stipulated by Section 127 of the Maharashtra Regional Town Planning Act, 1966 (for short MRTP Act). The petitioners are seeking a writ of mandamus under Article 226 of the Constitution of India with following prayers.
"[B] To hold and declare that reservation of land admeasuring 09 Aar of petitioner in respect of site No. 45, reserved for garden and residential zone from land survey No. 179 situated at Rahata, Ta. Rahata, District Ahmednagar from final development plan dated 16-08-2004 of Municipal Council, Rahata, Ta. Rahata, District Ahmednagar, is lapsed.
[C] To direct respondents to issue notification in respect of de-reservation as contemplated under section 127 of the MRTP Act by publishing it in Government Gazette showing de-reservation of land admeasuring 09 Aar of petitioner from site No. 45, reserved for garden and residential zone from land survey No. 179 situated at Rahata, Tq. Rahata, District Ahmednagar from final development plan dated 16-08-2004 of Municipal Council, Rahata, Tq. Rahata, District Ahmednagar by issuing appropriate writ or direction or order in the nature of writ as the case may be."
3. The petitioner in Writ Petition No. 1229 of 2017 is the owner of a portion admeasuring 09 Are from the City Survey No. 179, whereas the petitioner in writ petition No. 1256 of 2017 is the owner of a portion admeasuring 15 Are from the same city survey number. The respondent No. 4 Municipal Council finalized a town development plan. It was duly approved and notified in the official gazette and came into force with effect from 15.09.2004(Exhibit B). In the approved development plan, the City Survey No. 179 was reserved for garden as well as residence as site No. 45. However, it did not take any steps for acquisition of land as contemplated under the provisions of Sections 126 of the MRTP Act. The statutory period of 10 years provided under Section 127 of the Land Acquisition Act expired on 16.09.2014. The petitioners therefore issued a purchase notice under that provision on 20.11.2014 (Exhibit C). Alongwith notice they forwarded the revenue record in the form of 7/12 extracts, a copy of development plan and a copy of the sale-deed under which they had acquired the title to their respective portions/plots. The notice was duly sent to the respondent No. 4 Municipal Council by registered post acknowledgement due and it was duly received by it. As certified by the post office (Exhibit-D) not only the Municipal Commissioner of the respondent No. 4 Municipal Council but the Collector respondent No. 5 received it on 21/11/2014. Since there were some short falls, the respondent No. 4 Municipal Council demanded certain documents vide its communication dated 05.12.2014 (Exhibit E) and the petitioners duly complied with it, vide their response dated 10.12.2014 (Exhibit F). Again, respondent No. 4 pointed out few more short falls by its communication dated 04.02.2015(Exhibit G) and the petitioners duly complied with it vide their reply dated 06.04.2015 (Exhibit H).
4. According to the petitioners inspite of service of such purchase notice as contemplated under section 127 of the MRTP Act, respondent No. 4 Municipal Council, which is a development authority, has not taken any steps for acquiring the portions of the lands belonging to them and later by issuing necessary notifications/declaration under section 6 of the Land Acquisition Act, 1894 or a similar provision contained in Maharashtra Act No. XXIII of 2013. According to the petitioners in view of such inaction on the part of the respondent No. 4 Municipal Council and the
