Kishor Gopalrao Bapat And Ors. vs State Of Maharashtra And Anr.
2005 Latest Caselaw 695 Bom

JUDGMENT

Sinha D.D., J.

1. Rule returnable forthwith. Heard Shri Manohar, learned Counsel for the petitioners, Shri Patel, learned Assistant Government Pleader for the respondent Nos. 1, and Shri Sambre, learned Counsel for the respondent No. 2.

2. Shri Manohar, learned Counsel for the petitioners, states that petitioners are owners of land bearing field Survey No. 90/1, 90/2 and 90/3 situated at Mouza Sindi, Tahsil and District Wardha. In the year 1976 the above referred land was reserved under development plan of the city for open space (Plot No. 90/1) and for High School and play ground (Plot No. 90/2). It is contended that in view of Section 127 of the Maharashtra Regional and Town Planning Act, 1966, since land was not acquired within ten years from the date on which final regional plan or final development plan came into force and proceedings for the acquisition of above referred and under the M.R.T.P. Act or under the Land Acquisition Act, 1894 were not commenced within such period, the petitioners served notice dated 26-7-1988 on the Planning Authority, i.e. Municipal Council, Wardha. It is contended that in view of provisions of Section 127 of the M.R.T.P. Act after service of the above referred notice on the Planning Authority, if within six months from the date of service of such notice, the land is not acquired or no steps are taken for its acquisition, 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 as otherwise permissible in the case of adjacent land under the relevant plan. It is submitted that the Planning Authority vide Resolution dated 29-4-1995 expressed its inability to acquire the above referred land of the petitioners and to pay compensation to them and, therefore, released the above referred land of the petitioners from the relevant reservation. However, in spite of that, the Planning Authority failed to act as per its Resolution dated 29-4-1995 and, therefore, petitioners were constrained to file Writ Petition No. 3763/1998 before this Court seeking declaration that the reservation on the land of the petitioners has lapsed as per provisions of Section 127 of the M.R.T.P. Act.

3. Learned Counsel Shri Manohar submits that this Court vide judgment dated 21-9-1999 passed in Writ Petition No. 3763/1998 held and declared that regional reservation on the petitioners' land which applied on account of the 1978 development plan has lapsed, but declined to grant any other relief to the petitioners in view of subsequent developments. It is contended that in view of the above referred judgment of this Court, the land of the petitioners after lapsing of reservation was deemed to be released from such reservation and was available to the petitioners for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. However, the respondent Municipal Council published revised draft development plan on 13-11-1997. The petitioners submitted their objections before the Planning Authority on 20-11-1999 and final development plan was published on 9-1-2004.

4. It is submitted by learned Counsel Shri Manohar that in the revised final development plan, the land of the petitioners i.e. Plot No. 90/1 is shown to be again reserved for garden (reservation No. 25) and Plot No. 90/2 was again reserved for playground (reservation No. 28). It is contended that once reservation is lapsed in view of Section 127 of the M.R.T.P. Act, right of the ownership for development of the said land cannot be again subjected to reservation via Section 38 of the M.R.T.P. Act. It is submitted that controversy in this regard is concluded by the judgment of the Division Bench of this Court in the case of Shri Baburao Dhondiba Salokhe v. Kolapur Municipal Corporation, Kolhapur and Anr., . It is contended that as per law laid down by this Court in the above referred judgment, the Planning Authority is not legally competent to reserve the land, which is released from the reservation due to lapsing of reservation in view of provisions of Section 127 of the M.R.T.P. Act and, therefore, in the instant case, the action of the Municipal Council in again reserving land of the petitioner for garden and playground respectively is not sustainable in law and petitioners may be permitted to develop the land as per provisions of Section 127 of the M.R.T.P. Act.

5. Shri Sambre, learned Counsel for the respondent No. 2, states that the draft development plan was published on 13-11-1997 wherein land of the petitioners was shown to be reserved for garden and playground and, therefore, if petitioners wanted to challenge the said reservation, then petitioners ought to have approached this Court within a reasonable time. However, petitioners have filed the present petition in the year 2004 and, therefore, petition suffers from laches and delay and needs to be dismissed on that count alone.

6. It is further contended by learned Counsel Shri Sambre that as per Section 38 of the M.R.T.P. power is vested with the Planning Authority to revise the development plan once in twenty years from the date on which development plan has come into operation and, therefore, action of the respondent Planning Authority is consistent with the provisions of Section 38 of the M.R.T.P. Act and reservation applied to the land of the petitioners is, therefore, sustainable in law.

7. Shri Patel, learned Assistant Government Pleader for the respondent No. 1 more or less has adopted the line of argument advanced by Shri Sambre, learned Counsel for the respondent No. 2.

8. We have given our anxious thought to the various contentions canvassed by the learned respective Counsel for the parties and also perused relevant provisions of the M.R.T.P. Act as well as judgment of this Court relied on by the learned Counsel for the petitioners. In the instant case, it is not in dispute that this Court vide judgment dated 21-9-1999 passed in Writ Petition No. 3763/1998 has finally held thus :

"In these circumstances, we hold and declare that the regional reservation on the petitioners land which applied on account of the 1978 Development Plan has lapsed, but we decline to grant any other relief to the petitioners in view of the subsequent developments. Rule accordingly partly made absolute. No order as to costs."

9. In view of the above referred finding recorded by this Court in the aforesaid writ petition, it is evident that reservation on the land of the petitioners, i.e. Plot No. 91/1 for the open space and Plot No. 90/2 for High School and playground in the 1978 development plan was declared to have been lapsed and, therefore, necessary consequences stipulated in Section 127 of the M.R.T.P. Act must necessarily follow. Under the scheme of Section 127 of the M.R.T.P. Act, if reservation is lapsed in view of contingencies mentioned therein, then necessary consequence is that land under reservation shall be deemed to he released from such reservation and land shall become available to the owner of the land for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan.

10. In the instant case, the respondent No. 2 Planning Authority published revised draft development plan of the city on 13-11-1997 wherein land of the petitioner, which is released from reservation under Section 127 of the M.R.T.P. was again shown to be reserved for garden and playground, i.e. garden (Plot No. 90/1) and playground (Plot No. 90/2). The petitioners had submitted objections to the revised draft development plan. However, the final development plan was published on 9-1-2004 keeping the reservation intact as mentioned in the draft development plan so far as plots of the petitioners are concerned.

11. The question, which falls for our consideration in the present petition is whether the Planning Authority exercising power under Section 38 of the M.R.T.P. Act, which deals with revision of development plan, can take away the rights accrued to the owner of the land on account of lapsing of reservation in view of contingencies mentioned in Section 127 of the M.R.T.P. Act. Similar factual and legal situation arose in the case of Shri Baburao Dhondiba Solakhe (cited supra) and this Court after taking into consideration the law laid down by the Apex Court in Bhavnagar University v. Palitana Sugar Mills (p) Ltd. and Ors., 2003(1) S.C.C. 111, in paragraph (17) observed thus :

"The legal position as regards M.R.T.P. Act on the basis of aforesaid observations made by the Apex Court in Bhavnagar University emerges that by imposition of a statutory obligation under Section 38 on the part of the State or the appropriate authority to revise the development plan the rights of the owners accrued in terms of Section 127 are not taken away. Section 38 of M.R.T.P. Act, in our opinion, does not and cannot be read to mean that substantial right conferred upon the owner of the land or the person interested under Section 127 is taken away. In other words, Section 38 does not envisage that despite the fact that in terms of Section 127, the reservation lapsed, only because of a draft revised development plan or final revised development plan is made would not automatically result in revival of reservation that had lapsed. If the reservation of the petitioner's land for the purposes of garden had lapsed and as we found in fact has lapsed on 28-2-1992, because of draft revised plan made in the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation."

12. The above referred observations of this Court make it evident that once reservation is lapsed in view of contingencies mentioned in Section 127 of the M.R.T.P. Act, the necessary consequence under the scheme of Section 127 of the M.R.T.P. Act must follow. The land which is released from the reservation becomes available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. This right which is conferred or accrued to the owner of the land due to lapsing of reservation cannot be taken away by the Planning Authority by exercising power under Section 38 of the M.R.T.P. Act.

13. We do not agree with the contention of the learned Counsel for the respondent No. 2 that petition suffers from delay and laches particularly when final development plan came into force in the year 2004 and petition is also filed in the year 2004 and, therefore, same is rejected.

14. In view of the above referred settled legal position, the land of the petitioners cannot be again subjected to same reservation, which was made earlier in 1978 development plan and, therefore, we have no hesitation to hold that the act of the Planning Authority subjecting the land of the petitioners once again to reservation is unsustainable in law and therefore, we declare the said reservation as illegal and unsustainable in law and land of the petitioners, i.e. Plot No. 90/1 and 90/2 is declared to be released from reservation made in the final development plan, which was published on 9-1-2004. The petitioners are entitled to make appropriate application for permission to develop the land in question to the Planning Authority. If such application is made by the petitioners, respondent No. 2 Planning Authority is directed to decide the same on its own merits according to law as early as possible and in any case not beyond the period of three months from the date of receipt of such application.

15. The Rule is made absolute in the above terms. No order as to costs.