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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
Sunil B.Shukre, Anil S. Kilor, JJ.
Shree Vinayak Builders & Developers, a proprietary – Petitioner
Versus
The State of Maharashtra, through the Principal Secretary, Urban Development Department and ors. – Respondents
Writ Petition No. 2231 of 2019
Decided On : 27-01-2022
Maharashtra Regional and Town Planning Act, 1966 - Section 127 and 126(1) - Land Acquisition Act, 1894 - Acquisition of land - Development Plan - Acquisition of land required for public purposes - Monetary compensation - Transferable Development Right - Grant of - Seeking declaration that reservation of land in question, is deemed to have lapsed - Land owned and possessed by petitioner, shown to be reserved for building a 24 meters wide DP Road in the Final Development Plan for the City of Nagpur, which came into force on 01/03/2000.
Finding of the court :
The discretion to be exercised by the land owner in sub-section (1)(a) and (b) of Section 126 of Act of 1966 is unconditional and in the nature of choice given to him, just as the acquiring authority. After all, the law relating to acquisition of land whether under Land Acquisition Act, 1894 or under Chapter VII of the Act of 1966, has beneficial object, an object to compensate a person deprived of his property reasonably. It is not mere approval of application made for grant of TDR but, it is the surrender of area of land on approval of application for grant of TDR is what constitutes the step for acquisition of land. If this step is reached, TDR grant would follow and there can be no withdrawal of consent for giving compensation by way of TDR - it is possible to withdraw the consent or application, especially when the intention of the legislature is to give opportunity to the land-owner also to decide by which mode from out of two modes he would get compensation he thinks to be most reasonable – Court opinion that mere acceptance by the authority of the application for grant of TDR, as in the present case, cannot be termed as a step towards acquisition in the absence of any concrete and irreversible step towards acquisition, like the surrender of the land physically or symbolically, or taking over of possession of the land by the acquisition authority/Planning - Authority within the statutory period of two years. The view expressed in Asha Sunil Zawar (supra) is however, opposite, and it being prior in point of time, the law of precedents would require that this matter is referred to a larger Bench on questions.
Result : Order accordingly.
JUDGMENT :
Anil S. Kilor, J.
1. Upon failure of the respondent authorities to acquire petitioner’s land reserved for 24 meters wide D.P. Road in the Final Development Plan of the City of Nagpur, within statutory period of two years from the date of service of purchase notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as “the Act of 1966”), the petitioner has filed the present petition, seeking declaration that the reservation of the land in question, is deemed to have lapsed.
2. The brief facts of the present case, are as follows:
3. The land admeasuring 6377.12 Sq.Mts. comprised in land bearing Khasra Nos. 282/2 and 270/1 out of total land admeasuring 21100 Sq.Mts., owned and possessed by the petitioner, shown to be reserved for building a 24 meters wide DP Road in the Final Development Plan for the City of Nagpur, which came into force on 01/03/2000.
4. Upon failure of the respondent No. 3 to acquire the land in question for more than ten years from the date of coming into force the Development Plan for Nagpur City, the petitioner served a purchase notice under Section 127(1) of the Act of 1966, on the respondent No.3, a Planning Authority, on 27/07/2016.
5. In response to aforesaid purchase notice, the respondent No.3 vide its communication dated 16/09/2016 informed the petitioner that, the petitioner would be compensated with Commensurate Transferable Development Right (TDR). The petitioner for that purpose, was asked to submit an application for grant of TDR in the prescribed format.
6. Followingly, the petitioner submitted an application on 16/09/2016, for grant of TDR. Whereupon, the respondent No.3 vide its communication dated 22/12/2017, informed the petitioner that its application for TDR against the land in question, has been approved by the Commissioner of Nagpur Municipal Corporation.
7. It is the case of the petitioner that, the petitioner thereafter visited the office of the respondent Nos.2 and 3 on number of occasions for grant of TDR. However, the respondent authorities did not take concrete steps towards acquisition and the respondent authorities made the petitioner to run from pillar to post.
8. Resultantly, the petitioner issued a communication to the respondent No.3 on 31/07/2018, inter-alia informing that the petitioner has decided to withdraw its application for grant of TDR. The petitioner further requested the respondent No.3, for grant of monetary compensation.
9. However, thereafter the respondent No. 3 failed to acquire or to commence steps which will culminate in acquisition of the land in question within statutory period of two years from the date of purchase notice under section 127 of the Act of 1966.
10. Hence, this petition for declaration that the reservation of land in question has lapsed by operation of Section 127 of the Act of 1966 and the petitioner is free to develop the land in question in accordance with law.
11. Heard the learned counsel for the respective parties.
12. Shri Palshikar, learned counsel for the petitioner submits that, a sanction granted by the Commissioner for grant of TDR in this case, cannot be termed as a step towards acquisition of land. Thus, he submits that a failure to acquire the land in question by the respondent authorities, before lapse of statutory period of two years from the date of service of purchase notice under Section 127 of the Act of 1966, is sufficient to declare that the reservation has lapsed and the petitioner is entitled to develop the land in question in accordance with law.
13. Shri Palshikar, learned counsel for the petitioner further argues that once the request for grant of TDR was withdrawn by the petitioner, the only mode which was available to the respondent No. 3, was by paying an amount agreed by the petitioner or by making an application to the State Government for acquiring the land in question under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Reh
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