Bombay High Court
Shri. Balkrishna Jagannath Lad vs Indian Postal Dept, Through Chief ... on 21 August, 2015
Bench: Naresh H. Patil
1
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CI
VI
L APPELLATE JURISDICTION
RI
W T
PE
TITION
No. 152
4
OF 20 1
3
PET ITIONER
:- Balkrishna Jagannath Lad
Occupation : Business,
r/o 2429, Mahadwar,
A/P Ta. Pandharpur,
Distt. Solapur.
ig ...VERSUS...
RESPONDENT S
:- (1) Indian Postal Department,
Through Chief Post Master General,
Maharashtra Circle, Mumbai.
(2) Superintendent of Post Office,
Pandharpur Division,
Opp. S.T. Stand, Pandharpur.
Distt. Solapur.
(3) Chief Officer,
Pandharpur Municipal Council,
Pandharpur, Distt. Solapur.
(4) Sub Divisional Office, Pandharpur and
Special Land Acquisition Officer,
Pandharpur, Distt. Solapur.
(5) The District Collector,
Solapur.
(6) State of Maharashtra.
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2
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(7) B.S.N.L.
Chief General Manager,
6th Floor, B Wing, Administrative Building,
B.S.N.L. Complex, Juhu Road,
Santacruz (West), Mumbai.
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Mr. A.P. Kulkarni a/w Mr. Manoj Badgujar Advocate for the Petitioner.
Mr. Kapadnis a/w Mr. P.S. Gujar Advocate for respondents 1 & 2.
Mr. U.R. Mankapure Adv. i/b Mr. S.S. Aradhye Advocate for Respondent no. 3.
Mr. N.D. Sharma Advocate for Respondent no. 7.
Mr. P.P. Kakade, A.G.P., for Respondent/State.
Ms. Naseem Patriwala i/b M/s Pravin Mehta & Methi & Co. for Respdt. no. 2.
CORAM : Naresh H. Patil and S.B. Shukre, JJ.
Judgment Reserved on : 06.08.2015.
Judgment Pronounced on : 21.08.2015
JUDGMENT
(Per S.B. Shukre, J.)
:
Heard. Rule. Rule made returnable forthwith. Heard
finally.
2. By this writ petition, the petitioner is seeking a direction
to the respondents-authorities to treat his land as being free from
the reservation following lapsing of the reservation under the
provisions of the Maharashtra Regional and Town Planning Act,
1966 (hereinafter referred to as MRTP Act for short).
3. The petitioner is the owner of land bearing survey No.
103/1-2/1D/1A situated at Pandharpur, within the limits of Municipal
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Council Pandharpur. This property has been reserved with effect
from 3.3.1979 under reserved site No. 84 for the purpose of postal
department staff quarters. The respondent no. 3 initiated the
process of acquisition of the said land on 18.6.1991 and even a
notification under Section 6 of the Land Acquisition Act, 1894 came
to be issued. However, these proceedings could not be completed
within two years and, therefore, the acquisition process resulted in
it's lapsing by operation of Section 11-A of the Land Acquisition
Act, 1894.
4. As the respondents did not acquire the land almost for
23 years, the petitioner through his advocate issued a notice on
10.12.2002 as per the provisions of Section 127 of M.R.T.P. Act
calling upon the respondents to acquire the land within six months
from the receipt of the notice. The notice was duly received by the
respondents-authorities. But, neither the land was acquired nor
any steps for its acquisition were initiated. Therefore, it is the
contention of the petitioner that by operation of law, the reservation
on the subject land has come to an end and has been lapsed
resulting into the land becoming a free hold property.
5. After the issuance of notice under Section 127 of
M.R.T.P. Act, the subject land, under revised development plan,
was reserved vide reservation no. 91 for the purpose of staff
quarters of Bharat Sanchar Nigam Ltd. Notification in this regard
was issued on 11.7.2002. According to the petitioner, placing of
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the subject land under reservation in revised development plan,
which came into effect subsequent to lapse of period of six months
from the date of receipt of notice under Section 127 by the
respondents-authorities would not affect the substantial right
accrued in his favour as a consequence of no steps having been
taken by the respondent-authorities for acquisition of the subject
land within a period of six months from the date of receipt of the
notice.
6.
The respondent no. 3, Municipal Council, Pandharpur,
and respondent no. 7, B.S.N.L., in their affidavits in reply have not
disputed the ownership of the petitioner in respect of the subject
land. Respondent no. 3 has also not disputed the receipt of the
notice issued by the petitioner under Section 127 of the M.R.T.P.
Act. However, they have disputed accrual of right to the petitioner
under Section 127 of M.R.T.P. Act as, according to them, the land
has been once again reserved for the purpose of B.S.N.L. staff
quarters under the new revised plan.
7. We have heard learned counsel for the petitioner,
learned counsel for the respective respondents and the learned
A.G.P.
8. According to learned counsel for petitioner, once the
right has arisen in favour of the petitioner for seeking a declaration
of deemed lapsing of reservation over his land by operation of
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Section 127 of M.R.T.P. Act, such right cannot be taken away even
if the land is again reserved either for the same purpose or any
other purpose under a revised development plan. For this
submission, he places his reliance upon the case of Suresh
Laxminarayan Jaiswal v. State of Maharashtra & ors.
reported
in 2007(6) Bom.C.R. 229 decided by the Division Bench of this
Court.
9. According to learned counsel for respondent no. 3,
Municipal Council, and learned AGP since the subject land has
been reserved for another purpose under the revised development
plan the benefit of Section 127 of M.R.T.P. Act cannot be given to
the petitioner.
10. We would have accepted the argument of learned
counsel for respondent no. 3 and learned AGP, had it been a case
that no right in terms of Section 127 of M.R.T.P. Act had arisen in
favour of the petitioner in the present case. The facts not in dispute
are that: the petitioner is the owner of the subject land, that the
notice dated 10.12.2002 issued by the petitioner in terms of Section
127 of M.R.T.P. Act was duly received by the respondent-
authorities, and that within six months from the date of service of
the said notice the subject land was neither acquired nor any steps
for its acquisition were commenced. In the case of Suresh
Laxminarayan Jaiswal, supra, to which one of us was a party,
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following the law laid down by the Hon'ble Apex Court in the case
of Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & ors.
reported in (2003) 2 SCC 111, it has been held that once the
reservation gets lapsed in terms of Section 127 of M.R.T.P. Act,
just because a revised development plan or final revised
development plan is made, the lapsed reservation would not get
automatically revived. The relevant observations appearing in
paragraphs 14 and 15 of the judgment rendered in the said case
are reproduced as below:
"14. The issue regarding computation of period of ten
years and whether earlier period of reservation which was prior
to the revised development plan coming into effect should be
taken into consideration or not has now been finally settled by
the Apex Court in the case of Bhavnagar University vs.
Palitana Sugar Mill (P) Ltd. & ors. - (2003) 2 SCC 111. The
Apex Court has held as under :
The question however is as to whether only because the
provision of section 20 has been referred to therein, would it
mean that thereby the legislature contemplated that the time of
ten years specified by the legislature for the purposes of
acquisition of the land would get automatically extended? The
answer to the said question must be rendered in the negative.
Following the principle of interpretation that all words must be
given their full effect, we must also give full effect to the words
-so far as may be- applied to such revision.
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37. The said words indicate the intention of the legislature to
the effect that by providing revision of final development plan
from time to time and at least once in ten years, only the
procedure or preparation thereof as provided therein is required
to be followed. Such procedural requirements must be followed
so far as it is reasonably possible. Section 21 of the Act in our
opinion does not and cannot mean that the substantial right
conferred upon the owner of the land or the person interested
therein shall be taken away. It is not and cannot be the
intention of the legislature that what is given by one hand
should be taken away by the other.
38. Section 21 does not envisage that despite the fact that in
terms of sub-section (2) of Section 20, the designation of land
shall lapse, the same only because a draft revised plan is
made, would automatically give rise to revival thereof. Section
20 does not manifest a legislative intent to curtail or take away
the right acquired by a land owner under section 22 of getting
the land defreezed. In the event the submission of the learned
Solicitor-General is accepted the same would completely render
the provisions of section 20(2) otiose and redundant.
In the case of Kishor Gopalrao Bapat vs. State of
Maharashtra, 2005(5) Bom.C.R. (N.B.) 682 : 2005(4) Mh.L.J.
466 it was observed in paragraph 11 :
11 The question, which falls for our consideration in
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the present petition is whether the Planning Authority
exercising power under section 38 of the MRTP 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 MRTP
Act. Similar factual and legal situation arose in the
case of (Baburao Dhondiba Saloke vs. Kolhapur
Municipal Corporation, Kolhapur), 2003(5) Bom.C.R.
232 (cited supra) and this Court after taking into
consideration the law laid down by the Apex Court in
Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. &
ors. - (2003) 2 SCC 111, in paragraph 17 observed
thus :
The legal position as regards MRTP 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 the MRTP 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
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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 graden 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.
15.
We, therefore, find that the notice under Section
127 of the Act was perfectly served on the
respondents. As the respondent- Municipal Council
who could have initiated appropriate proceedings for
acquisition of the land failed to take effective steps after
receipt of the notice issued by the petitioner within the
prescribed period of six months, the reservation of the
subject land under the initial notification issued on
3.6.1976 would lapse and the land would be deemed
to have been released from the reservation and the
same would be available to the owner for its
development."
Thus, in view of the admitted facts, it is clear that no
steps for acquisition of the subject land having been taken by the
respondent-authorities within six months from the date of service of
notice issued under Section 127 of MRTP Act, an indefeasible right
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to seek a declaration that the subject land is free from reservation
under the provisions of MRTP Act has accrued in favour of the
petitioner and that this right could not be taken away by the
subsequent development of revised development plan providing for
reservation over the subject land coming into force. The petition,
therefore, deserves to be allowed.
11. Writ petition is, therefore, allowed in terms of prayer
clause (a). No costs. Rule is made absolute accordingly.
(S.B.Shukre, J.) (Naresh H. Patil, J.)
/TA/
