Sagar Tatoba Devtale And Ors. vs Sangli, Miraj And Kupwad ...
2002 Latest Caselaw 1295 Bom

JUDGMENT

V.G. Munshi, J.

1. By filing this petition the petitioners are seeking declaration to the effect that the reservation in respect of petitioners' land under revisional Survey No. 17/2B/1+2+3 of Miraj City Sanctioned Development Plan of respondent No. 1 Municipal Corporation, which is reserved for playground has lapsed under the provisions of Maharashtra Regional and Town Planning Act, 1966 (in short MRTP Act) and therefore the petitioners are entitled to use their land for the purpose of development as otherwise permissible.

2. The main facts of the case of the petition may be briefly stated as under:--

The petitioners are owners of the land bearing Revisional Survey No. 17/ 2B/1+2+3 admeasuring 3 H and 5.77 Ares situated at Miraj city, District Sangli which is within the limits of respondent No. 1 Municipal Corporation in the sanctioned Development Plan of Miraj city dated 26-4-1979 which came into force with effect from 30-6-1979. The petitioners land was reserved for the purpose of playgrounds under reservation site No. 93. Adjoining lands of the petitioners' land Revisional Survey No. 17, which were reserved for other public purpose, are fully developed. All the adjoining lands have got sufficient open space and play grounds are fully developed in that area. It was the contention of the petitioners that all these adjoining lands were fully developed. However, the land of the petitioners could not be brought under the development for want of sufficient funds. Thus for all these reasons the petitioners land has not been utilized for the purpose for which it was kept reserved.

3. The petitioners on 25-10-2001 issued purchase notice to the respondent No. 1 Municipal Corporation under the provisions of Section 127 of MRTP

Act, and informed to acquire their land within the statutory period after the receipt of notice on 26-11-2001.

4. The respondent No. 1 Municipal Corporation by their reply informed the petitioners that the said notice of the petitioners was not legal in the eye of law, because firstly power of attorney holder's name was not shown as owner in 7 x 12 extract of the land, secondly the said power of attorney of the owners was not produced along with notice and thirdly survey map with demarcation of reservation of the land, was also not produced along with notice. Thus the respondent No. 1 Municipal Corporation by the said notice, informed the petitioners, the said notice was not legal.

5. The petitioners made enquiries from the respondent Corporation in order to know which steps they had taken in order to acquire the land pursuant to their purchase notice dated 25-10-2001. In response to the purchase notice the respondent Corporation placed the subject before the General Body of the Corporation. Resolution No. 256 was passed in the General Body meeting of the respondent No. 1 Municipal Corporation on 22-3-2002 to the effect that it was not possible for them to acquire the land mainly for the reasons that, firstly the respondent Municipal Corporation was then having sufficient open space and play grounds adjacent to the land in dispute and secondly they showed their inability to acquire the land for want of sufficient funds with them.

6. The petitioners have come with the case that the respondent - Municipal Corporation after the receipt of purchase notice under Section 127 of MRTP Act failed to take out necessary steps as required under the Statute within the statutory period of six months. On the other hand, the respondent Municipal Corporation unanimously passed the Resolution and thereby declined to give sanction to the proposal for acquisition of the petitioners reserved land. Therefore, the petitioners pray that their land should be released from the said reservation.

7. It was argued by the learned Advocate for the petitioner that the petitioners are owners of the land in dispute. The respondent No. 1 Municipal Corporation, acquiring body, has not taken or did not intend to take any steps either to acquire their land or to develop the same for the purpose for which it was reserved and which was kept under reservation for last more than 22 years. It was further argued by the learned Advocate for the petitioners even after the issuance and receipt of purchase notice the respondent No. 1 Corporation did not take any steps or decline to acquire the said land. Thus the respondent Corporation did not intend to acquire the land and therefore it should be released from reservation.

8. The relevant provisions of Section 127 of the MRTP Act, 1966 are reproduced as under :--

"Section 127. If any land reserved, allotted or designated for any purpose specified for any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional Plan, or final Development Plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority,

Development Authority or as the case may be, Appropriate Authority to that effect, and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development or otherwise, permissible in the case of adjacent land under the relevant plan."

9. The respondent Municipal Corporation started compulsory acquisition proceedings of the said land as provided under Section 125 of MRTP Act long back. Admittedly the period of 10 years as prescribed by Section 127 of MRTP Act is already over. The exchange of purchase notice under Section 127 of MRTP Act and its reply etc. between the parties is not in dispute. Admittedly the respondent Municipal Corporation in their General Body meeting unanimously decided not to acquire the land mainly for the reasons firstly number of open lands or play grounds were then available in the adjacent locality and secondly they could not think of acquisition proceedings for want of sufficient funds with them. Thus there is no scope for doubt, that the acquisition proceedings, as contemplated under Section 126 of MRTP Act were not taken by the respondent Municipal Corporation. It was argued and an attempt was made to show that the respondent Municipal Corporation still intends to acquire the land. Provisions of Section 127 of MRTP Act are mandatory and acquisition of the land must be made within six months of the service of the purchase notice. No such acquisition proceedings were commenced, taken and completed within the period of six months as stipulated by the Statute. Moreover the respondent Municipal Corporation by passing Resolution unanimously decided not to acquire the land for the purpose for which the reservation was made. The respondent Corporation raised the question about validity and legality of the purchase notice given under Section 127 of MRTP Act. The petitioners thereafter furnished necessary particulars of the land and other papers. Ingredients of Section 127 of MRTP Act are fulfilled. Therefore the said notice under Section 127 of MRTP is legal and valid.

10. The learned Counsel for the petitioners then relied upon the case reported in 1988 Mh.L.J. 1 (SC), Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenant Association and Ors., in which it was held that "where notice of purchase is given as provided in Section 127 and no steps as provided under Section 126(1) are taken within 6 months of date of service of notice, reservation would lapse". Therefore, in the present case the notice under Section 127 of MRTP is valid.

11. In the circumstances the petitioners are entitled to the declaration that the reservation has lapsed by the operation of Section 127 of MRTP Act, 1966.

12. Rule is made absolute in the above terms, no order as to costs.