Bombay High Court
Ramchandra Shankar Joshi And Ors vs The State Of Maharashtra And Ors on 24 August, 2015
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6974 OF 2010
1. Shri Ramchandra Shankar Joshi
Age: 77 yrs., Occ.: retired,
Himself and Power of Attorney Holder
of petitioner Nos.2 to 3.
2. Shri Moreshwar Shankar Joshi,
Age:83 yrs., Occ.: Retired.
3.
Shri Laxman Shankar Joshi,
Age: 65 yrs., Occ.: retired.
4. Shri Ulhas Shankar Joshi,
Age: 64 yrs., Occ.: retired.
All residing at Datar ali, Pen,
Taluka Pen, Dist. Raigad. ... Petitioners.
V/s.
1. The State of Maharashtra,
Through Secretary Urban
Development Department,
Mantralaya, Mumbai 400 032.
2. The Collector of Raigad,
At Alibaug, District Raigad.
3. Pen Municipal Council,
Having its office at Pen,
District: Raigad. ... Respondents.
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S.S.Patwardhan I/b. Aparna More for the petitioners.
P.G.Sawant, AGP for respondent Nos.1 and 2.
N.N.Bhadrashete for respondent No.3.
CORAM : NARESH H. PATIL AND
S.B. SHUKRE, JJ.
RESERVED ON : 24th July 2015.
PRONOUNCED ON :
ig 24th August 2015.
JUDGMENT : (Per Naresh Patil, J.)
The petitioners seek direction to the respondents to forthwith
release the land bearing Gat No.370, Hissa No.1 situated at taluka- Pen,
district- Raigad from reservation No.7 (Garden).
2. It is the contention of the petitioners that they are owners of
the land situated within the limits of the Pen Municipal Council. The said
land admeasures 0-42-07 + 0-04-0 R. In the development plan, which
came into force on 3rd March 1989, the said land was reserved by the
municipal council for the purpose of garden as reservation No.7. The
petitioners contend that on 2nd February 2009, a notice was issued under
section 127 of the Maharashtra Regional and Town Planning Act, 1966
("Act of 1966" for short). It is stated that the said notice was received by
respondent No.3. In spite of receipt of notice, no steps were taken by
respondent No.2. The petitioners claimed to have issued another notice
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to respondent No.1 on 11th March 2010 and requested for issuance of
notification under section 127(2) of the Act of 1966. The petitioners state
that the respondents did not take any action for purchasing the petitioners'
land in terms of notice issued under section 127 of the Act of 1966.
3. The learned counsel for the petitioners submits that in view
of settled position of law, after receipt of notice under section 127 of the
Act of 1966 if the State fails to take proper action then the subject
reservation would stand lapsed. The learned counsel submits that in the
affidavit-in-reply filed by respondent No.3- Council a stand is taken that
the said notice is not in compliance with the provisions of section 127 of
the said Act. Learned counsel submits that a technical view need not be
taken which would frustrate the cause of the petitioner.
4. Learned counsel appearing for respondent No.3 submits that
for claiming relief of lapsing of reservation, a proper and valid notice
issued under section 127 is essential requirement of law. In the present
case, the said notice does not conform to the basic requirements. Hence
such a notice cannot be a basis for claiming relief of lapsing of reservation.
Learned counsel further submits that in the development plan of 1989 the
petitioners' land was reserved for garden. In a meeting, dated 4 th January
1997, it was resolved to develop the said plot by entering into agreement
with the owner of the said land. The petitioners by their application
dated 10th May 2000 informed respondent No.3 that they are willing to
accept the compensation at the market rate and hand over the possession
of the said land or they be provided alternate plot within the municipal
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council area. It is submitted that vide letter dated 21st July 2000,
respondent No.3 requested the petitioners to hand over possession of the
said land as the petitioners had agreed to accept the compensation at the
market rate. The total amount towards valuation was determined at
Rs.34,69,695/-. The municipal council requested the petitioners to
transfer the said land at the market rate. However, the petitioners
refused to transfer the said land. In a general body meeting held on 23 rd
January 2008 it was resolved to acquire the said land through the
Collector, Raigad. Accordingly, intimation was given to Deputy Director,
Town Planning, Kokan Division by a letter dated 24 th January 2001. By
letter dated 16th July 2008 a request was also made to the Collector,
Raigad for acquiring the said land. By communication dated 11 th August
2008, the office of the Collector informed respondent No.3 that the
proposal submitted was incomplete and further informed to submit the
proposal after complying with various compliances referred to in the said
letter. Learned counsel relied upon the affidavit sworn by the Chief
Officer of respondent No.3- Council on 24th August 2011.
5. The learned counsel appearing for the petitioners has relied
upon judgments of Supreme Court in the cases of Girnar Traders v.
State of Maharashtra, 2007 (7) SCC 555; Beohar Rajendra Sinha v.
State of M.P., 1969 (1) SCC 796; Mohinder Gupta v. Frontier
Construction Company, 2010 (15) SCC 551 and judgment of this Court
in the case of Nagpur Cable Operators Association v. Commissioner of
Police Nagpur, 1995 (2) Mh.L.J. 753.
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The Apex Court in the case of Girnar Traders (supra) has
observed as under:
"56. The underlying principle envisaged in Section 127
of the MRTP Act is either to utilize the land for the
purpose it is reserved in the plan in a given time or let
the owner utilize the land for the purpose it is
permissible under the town planning scheme. The step
taken under the section within the time stipulated
should be towards acquisition of land. It is a step of
acquisition of land and not step for acquisition of land.
It is trite that failure of authorities to take steps which
result in actual commencement of acquisition of land
cannot be permitted to defeat the purpose and object of
the scheme of acquisition under the MRTP Act by
merely moving an application requesting the
Government to acquire the land, which Government
may or may not accept. Any step which may or may
not culminate in the step for acquisition cannot be said
to be a step towards acquisition."
6. The learned counsel appearing for respondent No.3 placed
reliance on the judgment of this Court in the case of C.V.Shah & A.V.Bhat
v. State of Maharashtra, 2006 (3) Bom.C.R. 216, wherein the Division
Bench of this Court has observed in para-17 as under:
"17. The notice contemplated in section 127 is a notice
requiring the Planning Authority or the Development
Authority or the Appropriate Authority, as the case may
be, to acquire the land which is reserved, allotted or
designated for public purpose in the final development
plan. The notice is given by the owner or the person
having interest in the land that is reserved, allotted or
designated for the particular purpose in the development
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plan because such land has not been acquired by consent
or no proceedings for acquisition have commenced
under the MRTP Act, 1966 or the Land Acquisition Act
within 10 years of the coming into force of final
development plan or final regional plan. The very fact
that notice is given for acquisition or in other words for
compulsory purchase by the owner or the person
interested in such land would lead to show that the land
is reserved, allotted or designated in the final
development plan/final regional plan and that in respect
of which no acquisition has taken place by agreement
within 10 years from the date of coming into force of the
final development plan or final regional plan or in
respect of which the acquisition proceedings have not
commenced either under the MRTP Act or under the
Land Acquisition Act. The expression "serve notice .........
to that effect" cannot be construed to mean that in the
notice it is mandatorily required to be stated that the
subject land is reserved/designated/allotted in the
development plan and that the land has not been
acquired within 10 years from the date on which the
final regional plan or final development plan came into
force or that no proceedings in relation to that land for
acquisition has commenced either under the MRTP Act
or under the Land Acquisition Act within 10 years. The
object of the notice under section 127 is to inform the
Authority mentioned therein to acquire the land which is
designated, reserved or allotted in the final development
plan. The notice need not set out all the facts and details
of the reservation/designation or that the said land has
not been acquired within 10 years of the coming into
force of the final development plan. The word 'Notice'
denotes an intimation to the party concerned of a
particular fact. Notice may take several forms. Form of
notice under section 127 is not prescribed. In our view,
therefore, the notice under section 127 shall meet the
sufficient compliance if notice describes the land in
sufficient clarity and requires the Planning Authority or
the Development Authority or the appropriate authority,
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as the case may be to acquire or compulsorily purchase
the land so reserved, allotted or designated in the
development plan."
7. It is a settled position of law that notice contemplated under
section 127 of the Act of 1966 is to be given by the owner or the person
having interest in the land which is reserved, allotted or designated for
the particular purpose in the development plan. The object of the notice
under section 127 is to inform the Authority mentioned therein to acquire
the land which is designated, reserved or allotted in the final development
plan. It is further settled position in law that form of notice under section
127 is not prescribed. Therefore such notice shall meet sufficient
requirement in describing the land in clear terms and require the planning
authority or development authority or the appropriate authority, as the
case may be, to acquire or compulsorily purchase the land so reserved,
allotted or designated in the development plan. In case such a notice in
a proper form is served on the concerned authority and no steps are taken
within six months from the date of service of such notice, the reservation/
allotment/ designation shall be deemed to have lapsed and the land shall
be deemed to have been released from the said reservation.
8. Therefore, the precondition for the land owner or the person
interested to claim benefit under the provisions of section 127 of the
Act 1966 would be to give proper notice describing the land in sufficient
clarity and intimating the concerned authority in clear terms.
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9. In the present case, we have perused the contents of the
notice. It states that the subject land which is described in the notice was
reserved under reservation No.7 in the development plan with effect from
3rd March 1989. In the next paragraph, it is mentioned that for a period of
10 years no steps have been taken in accordance with the provisions of Act
of 1966 and the Land Acquisition Act, 1984. The petitioners further
stated in the said notice that in these circumstances, the reservation
concerning the subject land gets lapsed. In the last paragraph, it is stated
that necessary steps be taken for cancellation of reservation and note be
taken accordingly. The said notice is dated 2 nd February 2009. Reading
of this notice makes it very clear that it cannot be termed as notice
contemplated under section 127 of the Act of 1966. On the other hand,
the record placed before us by respondent No.3 shows that certain
communications were exchanged between the land owners and the
appropriate authority for purchasing the said land by paying
compensation at market rate. One of such communication is dated 10 th
June 2000 addressed by the petitioners to the Chief Officer of respondent
No.3 and another dated 21st July 2000 addressed by the Chief Officer to
the petitioners. By communication dated 1 st March 2005, the petitioners
informed the Chief Officer that the subject land is owned by them and is a
tenanted property which is to be acquired by the municipal council by
private negotiations. On 23rd January 2008, the municipal council
adopted resolution in respect of the subject land wherein it was decided
that as Special Economic Zone was to be created in Pen taluka there was
lot of demand to the properties which are situated in the municipal area.
Therefore the land owners i.e. the petitioners herein were not inclined to
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hand over the land to the municipal council by private negotiations. This
correspondence further shows intention of the parties in respect of the
subject land. Shri A.G.Girkar, the Assistant Director of Town Planning,
Alibaug has filed affidavit-in-reply on behalf of respondent No.1 and
requested that the writ petition be dismissed.
10. In the facts, we are of the view that the subject notice does
not meet the requirements of the provisions of section 127 of the Act of
1966. It suffers from want of requisite details. The issue raised herein is
squarely covered by the judgment of the Division Bench of this Court in
the case of C.V.Shah & A.V.Bhat (supra). There is no merit in the
petition.
11. Petition is dismissed. Rule stands discharged.
(S.B. SHUKRE, J.) (NARESH H. PATIL, J.)
Sanjay Nanoskar, P.S..
