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IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
SUNIL B. SHUKRE, ANIL S. KILOR, JJ.
Shree Vinayak Builders and Developers – Petitioner
Versus
The State of Maharashtra – Respondent
Writ Petition No. 2231 of 2019
Decided On : 27-01-2022
Maharashtra Regional and Town Planning Act, 1966 - Section 126, 126(1), 127, 127(1) - Acquisition of land required for public purposes specified in plans – 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 - Held, Court are of considered view that discretion to be exercised by land owner in sub-section (1)(a) and (b) of Section 126 of Act of 1966 is unconditional and in nature of choice given to him, just as acquiring authority - After all, law relating to acquisition of land whether under Land Acquisition Act, 1894 or under Chapter VII of Act of 1966, has beneficial object, an object to compensate a person deprived of his property reasonably - Provisions made for grant of compensation for acquisition of private lands for public purposes are intended to provide reasonable compensation to a land owner who is deprived of his land by state action - In a case where statute provides for multiple modes of acquisition and authority does not wish to determine compensation as per provisions of applicable land acquisition law in first go expression “reasonable compensation” would have to be understood not only by applying settled principles of law but also by considering nature of modes of acquisition - Section 126 (1) is one such instance - It prescribes not just one mode but three modes of acquisition, two of which depend on agreement between parties where consent of landowner is equally important - This shows that it is intention of legislature to allow parties to choose in it’s discretion one out of two modes of acquisition so that compensation agreed upon is thought to be reasonable not by one side but by both - There is another aspect also - Take a case where land-owner gives his consent to go by one of these two modes and then backtracks on his consent before consent has assumed form of contract - If this is to happen, there would be no option but to give up that mode of compensation and adopt mode of compulsory acquisition under clause (c) as there is nothing in law which can compel land-owner to stick to his consent - There is no provision in Act of 1966 which compels a land-owner to go by his consent and accept amount of compensation or TDR offered - It would, however, be a different matter if land-owner accepts amount offered under clause (a) or surrenders land under clause (b) of sub-section (1) of Section 126 of Act of 1966 - It is therefore, difficult to accept view that option regarding manner in which reserved land should be acquired, can be exercised only at discretion of acquiring authority and not at discretion of land owner - If such a view is accepted, it would render modes of acquisition under clause (a) and clause (b) nugatory and one-sided, thereby frustrating object of such provisions to pay reasonable compensation to land-owner - Court may make it clear here that what Court have said herein above would hold good only when acquiring authority does not decide to acquire land as per third mode in clause (c) in first instance itself and decides to go by modes given in clause (a) or clause (b) where agreement is determining factor - 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:
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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
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