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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
Sunil B. Shukre, Anuja Prabhudessai, Anil L. Pansare, JJ.
Shree Vinayak Builders & Developers – Petitioner
Versus
The State of Maharashtra & Ors. – Respondents
Writ Petition No. 2231 of 2019
Decided On : 25-07-2022
Acquisition of Land - Maharashtra Regional and Town Planning Act, 1966 - Section 126(1)(a) and (b) - Summary of Acts and Sections
Fact of the Case:
The Division Bench disagreed with the view in Asha Sunil Zawar (supra) that the option of TDR does not rest with the land owner and that if he fails to approach the Planning Authority for TDR, the land owner cannot insist for acquisition of land under clause (c) of Section 126. The Court held that acquisition under Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966 has to be by consensus between both the parties and not only at the option of the Acquiring Authority. The Court also clarified that mere approval of the request of the land owner to grant of monetary compensation or grant of TDR/FSI in lieu of compensation by itself will not always result in a concluded contract and the land owner can withdraw his request and refuse or decline to surrender the land as long as there is no concluded contract between the parties. Mere grant of approval or passing of resolution by the authorities concerned for grant of TDR/FSI in lieu of monetary compensation is not a step for acquisition of land, thereby commencing the proceedings for the acquisition of land, unless it concludes the contract between the parties.
Finding of the Court:
The Court held that acquisition under Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966 has to be by consensus between both the parties and not only at the option of the Acquiring Authority. The Court also clarified that mere approval of the request of the land owner to grant of monetary compensation or grant of TDR/FSI in lieu of compensation by itself will not always result in a concluded contract and the land owner can withdraw his request and refuse or decline to surrender the land as long as there is no concluded contract between the parties. Mere grant of approval or passing of resolution by the authorities concerned for grant of TDR/FSI in lieu of monetary compensation is not a step for acquisition of land, thereby commencing the proceedings for the acquisition of land, unless it concludes the contract between the parties.
Issues: The issues revolved around the interpretation of Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966, specifically regarding the consensus required for acquisition of land and the conditions for a concluded contract between the parties.
Ratio Decidendi: The acquisition under Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966 has to be by consensus between both the parties and not only at the option of the Acquiring Authority. Mere approval of the request of the land owner to grant of monetary compensation or grant of TDR/FSI in lieu of compensation by itself will not always result in a concluded contract and the land owner can withdraw his request and refuse or decline to surrender the land as long as there is no concluded contract between the parties. Mere grant of approval or passing of resolution by the authorities concerned for grant of TDR/FSI in lieu of monetary compensation is not a step for acquisition of land, thereby commencing the proceedings for the acquisition of land, unless it concludes the contract between the parties.
Final Decision: The Court held that acquisition under Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966 has to be by consensus between both the parties and not only at the option of the Acquiring Authority. The Court also clarified that mere approval of the request of the land owner to grant of monetary compensation or grant of TDR/FSI in lieu of compensation by itself will not always result in a concluded contract and the land owner can withdraw his request and refuse or decline to surrender the land as long as there is no concluded contract between the parties. Mere grant of approval or passing of resolution by the authorities concerned for grant of TDR/FSI in lieu of monetary compensation is not a step for acquisition of land, thereby commencing the proceedings for the acquisition of land, unless it concludes the contract between the parties.
JUDGEMENT :
1. This Bench has been constituted pursuant to an order dated 27th January, 2022 by a Division Bench of this Court, comprising of Hon’ble Mr. Justice Sunil B. Shukre and Anil D. Kilor, JJ. The Division Bench expressed disagreement with view taken by another Division Bench of this Court in the case of Asha Sunil Zawar vs. State of Maharashtra & Ors. (W.P. No.5938 of 2020). The Division Bench has referred the following questions for opinion of this Larger Bench:
(ii) If the planning authority has approved the request of the land owner for grant of monetary compensation or grant of TDR/FSI in lieu of compensation, can the land owner withdraw his request and thereby refuse or decline to surrender the land?
(iii) Can the grant of approval or passing of resolution by the authorities concerned for grant of TDR in lieu of monetary compensation be treated as a step for acquisition of land and thereby commencing the proceedings for acquisition of the land?
2. In a petition relating to declaration of lapsing of reservation by operation of Section 127 of MRTP Act, 1966, the Division Bench in the referring order has observed that the two modes of acquisition under Section 126(1) viz. (a) By agreement by paying an amount agreed to (b) Grant of TDR/FSI in lieu of compensation, depend on the agreement between the parties where consent of the land owner is equally important, rather is a pre-condition. The Division Bench has disagreed with the view expressed in Asha Sunil Zawar (supra) that the option regarding the manner in which reserved land should be acquired, can be exercised only at the discretion of the Acquiring Authority, and not at the discretion of the land owner.
3. The Division Bench disagreed with the view in Asha Sunil Zawar (supra) that the option of TDR does not rest with the land owner and that if he fails to approach the Planning Authority for TDR, the land owner cannot insist for acquisition of land under clause (c) of Section 126 and further that offering compensation of TDR within twenty four months from the date of purchase notice is a step towards commencing the acquisition. The Division Bench opined that mere acceptance of the application for TDR by the concerned Authority cannot be termed as a step towards acquisition in the absence of concrete and irreversible step towards acquisition without any other possibility. The Division Bench noted that the view expressed by the Division Bench in Madhukar S/o Haribhau Muley vs. The State of Maharashtra and Ors., (Writ Petition No.10162 of 2019), Shri Vasant Mahadeo Patil and others vs. The State of Maharashtra and others 2018 SCC OnLine Bom.2620, Keshaorao Narayan Chichghare vs. The State of Maharashtra & others (Writ Petition No.1343 of 2017) and The Nirmal Ujwal Credit Co-operative Society (Limited Nagpur) vs. The State of Maharashtra & Anr. (Writ Petition No.728 of 2017) has not been considered or discussed in the case of Asha Sunil Zawar (supra). As a result of difference of opinion, the Court formulated the questions referred to in the reference order.
4. We have heard Shri Palshikar, learned counsel for the petitioner, Smt, Ketki Joshi, learned Government Pleader for the State - respondent no.1 and Shri S.M.Puranik, learned counsel for respondent nos.2 and 3. We have also heard Shri A.R.Syed, learned counsel from Aurangabad, who was permitted by this Court to make his submissions in the matter with a view to assist the Court in its endeavour to answer the questions under reference.
5. Shri Palshikar submits that the essential element of acquisition modes under clauses (a) and (b) of sub-section (1) of Section 126 of the Maharashtra Regional and Town Planning Act, 1966 (“MRTP Act” for short) is of choice of either of the parties; the agreement between the pa
The acquisition under Section 126(1)(a) and (b) of the Maharashtra Regional & Town Planning Act, 1966 has to be by consensus between both the parties and not only at the option of the Acquiring Autho....
Point of Law : The opening words of sub-section 1(b) of Section 126, “in lieu of any such amount” clearly indicate that the discretion which land owner can exercise under sub-section 1(a), is equally....
Absence of agreement for TDR/FSI necessitates monetary compensation under the 2013 Act, as lawful acquisition processes were not followed.
Reservation of land under the MRTP Act lapses if the land is not acquired within ten years from the date of publication of the final Development Plan and no declaration under Section 19 of the Act of....
Failure to initiate acquisition proceedings within the stipulated time under the MRTP Act results in lapsing of land reservation, allowing the owner to develop the property.
Failure to initiate acquisition steps within the stipulated time under the MRTP Act results in lapsing of land reservation, protecting landowners' rights.
The court established that under Sec. 127 of the MRTP Act, if land reserved for a public purpose is not acquired within a specified period after notice, the reservation lapses, allowing the landowner....
Failure of the planning authority to acquire land within statutory timelines results in the lapse of the reservation under the Maharashtra Regional and Town Planning Act.
The court established that failure to act within statutory timelines for land acquisition results in the lapsing of reservations, allowing landowners to utilize their property.
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