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991-WP-3842-20.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

991 WRIT PETITION NO. 3842 OF 2020

ANIL PRABHAKAR AUNDHEKAR AND OTHERS

VERSUS

THE STATE OF MAHARASHTRA AND OTHERS

...

Advocate for Petitioners : Mr. Pramod C. Mayure

AGP for Respondent Nos. 1 to 4 : Mr. S.P. Tiwari

Advocate for Respondent Nos. 5 and 6 : Mr. S.C. Bora

Advocate for Respondent No. 7 : Mr. Mahesh Deshmukh

…

CORAM : S. V. GANGAPURWALA AND

S. G. DIGE, JJ.

DATE : 5^th JANUARY, 2022

PER COURT :-

1.

We have heard Mr. Mayure, learned counsel for the petitioners,

Mr. Bora, learned counsel for the planning authority, the learned AGP for

respondents- State Authorities and Mr. Deshmukh, learned counsel for

the Agricultural Produce Market Committee (APMC).

2.

The land of the petitioners bearing Survey No. 54/1 (22 Acres 33

Gunthas) and 55/1 (17 Acre 09 Gunthas), total admeasuring 40 Acres &

2 Gunthas situated at Parbhani-Jintur Road is reserved as Site No. 4/08

for APMC. The development plan came into effect from 16-12-1999.

3.

The petitioners issued a notice U/Sec. 127 of the Maharashtra

Regional Town Planning Act, 1966 (MRTP Act) on 21-11-2017. The

receipt of the said notice by the planning authority is not disputed.

4.

It is also not disputed that no steps are taken for acquisition by

issuance of a declaration U/Sec. 126 of the MRTP Act read with Section

19 of the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013 (Act-2013)

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991-WP-3842-20.odt

within a period of two years from the date of service of the said notice.

In fact, no such declaration is issued even till date. The Agricultural

Produce Market Committee, it appears has communicated the planning

authority that the reservation be released under its communication

dated 10-04-2017.

5.

It is abundantly clear that steps for acquisition would be initiated

by issuance of declaration U/Sec. 126 of the MRTP Act read with Section

19 of the Act-2013 as held by the Apex Court in case of Girnar Traders

Vs. State of Maharashtra and others reported in (2011) 3 S.C.R. 1.

6.

Section 127 of the MRTP Act is a fetter on the power of imminent

domain. The right to property, though is not a fundamental right still is

constitutional right and now it has been brought within the contours of

human right. The rightful owner of the property cannot be deprived of

use and enjoyment of the property in perpetuity.

7.

As no steps for acquisition are taken within a period of two years

from the issuance of notice U/Sec. 127 of the MRTP Act, the reservation

stands lapsed.

8.

In light of the above, it is held that the reservation on the writ

land of the petitioners stands lapsed. The petitioners are entitled to use

the land as the adjacent land is permitted to be used. The State

Government shall issue notification to that effect, preferably within a

period of six (06) months.

9.

Writ Petition is disposed of accordingly. No costs.

( S.G. DIGE )

( S.V. GANGAPURWALA )

JUDGE

JUDGE

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