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2022 Supreme(Bom) 495
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.A. Sayed, S.G. Dige, JJ.
Mr. Appasaheb Gurusiddhappa Lakshetti and Ors. - Petitioners
Versus
The State of Maharashtra through the Principal Secretary, Urban Development Department and ors. – Respondents
Writ Petition No. 3023 of 2021
Decided On : 24-02-2022
Advocate Appeared:
For the Petitioner:Mr. Ramdas P. Sabban, Advocate a/with Shrikanth Kompelli & Arundhati Sabban
For the Respondent:Mrs. R. M. Shinde, AGP, Mr. Anand Kulkarni, Advocate
Headnote:
Constitution of India, 1950 - Article 226 - Maharashtra Regional and Town Planning Act, 1966 - Section 127, (2), 49(7), 126, (2) or (4), 113 A - Land Acquisition Act, 1894 - Section 6 - Land - Notify Lapsing Of Reservation Of Lands - Petitioners seek a declaration that reservation of Petitioners’ land under development Plan of Solapur for Primary School purpose under reservation has lapsed - Petitioners also pray for a direction to Respondents to forthwith notify lapsing of reservation of lands in official with further direction to Respondent No. 2 -Municipal Corporation to grant necessary development permission to Petitioners, being owner of land, for purpose of development as otherwise, permissible in case of adjacent land under Plan – Held, Petitioners land earlier was reserved for “Saw Mill & Timber Depot” under Development Plan - At that time also, said land was not acquired for that purpose - It indicates that since last 40 years, lands of Petitioners are reserved for public purpose but have not been acquired by Respondents - Thereafter, said land of Petitioner came to be reserved for Primary School purpose under development plan which came into force - This time also said land is not acquired by agreement within 10 years from date final development plan came into force and declaration under subsection (2) or (4) of Section 126 of Act is also not published in Official Gazette within stipulated period of 10 years - Respondents have failed to publish declaration for acquisition of said land within 24 months - That being so, land of Petitioner has to be released from reservation, allotment or designation and is required to be available to owner- Petitioner, for purpose of development which would be only for purpose which is permissible in case of adjacent land under Development Plan - Ratio of judgments (cited supra) relied on by Petitioners is squarely applicable to case of Petitioners - In view of above, Court find that Respondents have failed to acquire land within stipulated period as per provisions of MRTP Act - This being case as per provisions of section 127 (1) of MRTP Act, reservation clamped on said land automatically lapses - In this factual scenario and considering that reservation lapses, State Government is duty bound under section 127 (2) to notify same by an order published in Official Gazette and therefore, reliefs that are sought for in this Writ Petition ought to be granted – Petition allowed.
JUDGMENT :
S.G. DIGE, J.
1. Rule, returnable forthwith. Heard finally by consent of learned Counsel for the parties.
2. By this Petition filed under Article 226 of the Constitution of India, the Petitioners seek a declaration that the reservation of the Petitioners’ land under development Plan of Solapur 1997-2027 for the Primary School purpose under the reservation no. 3/53 admeasuring 4092 sq. mtrs., sub-plot Nos. 41 to 45 and 49 to 54 situated at T. P. Scheme No. 2, Final Plot No. 94, Ravivar Peth, Solapur City, Solapur (for short “the said land”) has lapsed. Petitioners also pray for a direction to the Respondents to forthwith notify the lapsing of reservation of lands in the official Gazette as required under section 127(2) of the Maharashtra Regional and Town Planning Act, 1966 (for short “the MRTP Act”) with further direction to the Respondent No. 2 -Municipal Corporation to grant the necessary development permission to the Petitioners, being the owner of the land, for the purpose of development as otherwise, permissible in the case of adjacent land under the Plan.
3. The Government of Maharashtra (Respondent No.1) vide its Notification dated 28th October, 2004 (Exhibit “A” to the Petition) sanctioned Development Plan for Solapur for 1997-2017 which was brought into effect from 15th December, 2004. The Development Plan was submitted to the Government for its approval by the Solapur Municipal Corporation (Respondent No.2, which is the Planning Authority) on 05-03-2002. Under the above Development Plan, the said land of the Petitioners was reserved for the Primary School purpose.
4. The Petitioners state that they are joint owners of the total land admeasuring 4092 sq. mtrs. situated at T.P. Scheme No. 2, Final Plot No. 94, Ravira Peth, Solapur City, Solapur, part of the land on which the above land reservations are made. They further state that in the earlier Development Plan of 1978 the said land was reserved for “Saw Mill & Timber Depot” under Reservation No. 25.
5. Petitioners’ land was reserved on 15th December, 2004. After a period of 10 years of reservation of Petitioners’ property, the Petitioners gave purchase Notice dated 26th October, 2018 under section 127 of the MRTP Act to the Respondents and submitted the property card extract, municipal lay out plan, 7/12 extracts, copy of reservation zone certificate, coloured part plan, approved copy of plan, measurement etc. In response to said Notice, Respondent No. 2 Municipal Corporation by letter dated 24th November, 2018 asked the Petitioners to accept TDR. Petitioners replied it by letter dated 01st December, 2018 and asked the Respondent Corporation to acquire the land. After receipt of said purchase notice, no steps have been taken within the period of 24 months, as contemplated under sub-section (1) of Section 127 of the MRTP Act. The Petitioners state that they also issued the purchase Notice dated 26th October, 2010 under section 49 of the MRTP Act to Government-Respondent No. 1, as provided under section 49 of the MRTP Act, 1949. Therefore, the reservations of the lands have also lapsed under section 49(7) of the MRTP Act.
6. Learned Counsel for the Petitioner contended that the said land of the Petitioner is reserved for Primary School purpose for more than ten years, however, neither the said land has been acquired by agreement or by publication of a declaration as contemplated under the provisions of section 126 of the MRTP Act. The notice for purchase is given by the Petitioners to the Respondents as contemplated under section 127, however, no steps are taken to acquire the said land within a period of 24 months from the date of service of such notice. Even prior to the purchase notice, the communication of the Respondent No.2-Corporation dated 24.11.2018 was replied to by the Petitioner vide letter dated 01.12.2018, informing that the Petitioner did not require FSI or TDR and that necessary steps may be taken as per the Right to Fair Compensation and Transpare
