Bombay High Court
Shri. Shoukat Allabaksh Bagwan ... vs The State Of Maharashtra Through ... on 13 August, 2015
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION No. 2014 OF 2014
PETITIONERS :- 1. Shoukat Allabaksh Bagwan, Since deceased
through heirs and legal representatives
1a. Smt. Shahanaj Shoukat Bagwan
1b. Shri Arish Shoukat Bagwan
1c. Shri Kaish Shoukat Bagwan
All R/o 9/96, Sangli Road, Ichalkaranji
Taluka-Hatkanangale, Dist. Kolhapur.
1d. Sau. Anjum Javed Tamboli
R/o Budhawar Peth, Satara,
Taluka and Dist. Satara
2. Sau. Shahanaj Shoukat Bagwan
3. Arish Shoukat Bagwan
4. Kaish Shoukat Bagwan
all major and occupation : Business.
All r/o 9/96, Sangli Road, Ichalkaranji,
Tq. Hatkanangale, Distt. Kolhapur.
...VERSUS...
RESPONDENT S
:- (1) The State of Maharashtra
through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
(2) The Deputy Director (Town Planning)
Division, having its office
at Survey No. 74/2, Sahakar Nagar,
Pune.
(3) The Assistant Director ( Town Planning)
Division, having its office
at Bindu Chowk, Kolhapur.
(4) The Collector, Kolhapur.
having its office at Tarabai Park, Kolhapur.
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(5) The Chief Officer,
Ichalkaranji Municipal Council,
Ichalkaranji.
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Mr. S. G. Karandikar a/w Mr. P.M. Arjunwadkar Advocate for the Petitioners.
Mr. Vikas Mali, A.G.P., for Respondents 1 to 4.
Mr. Akshay P. Shinde Advocate for Respdt. no. 5.
CORAM : Naresh H. Patil and S.B. Shukre, JJ.
Dated : 13.08.2015.
JUDGMENT
(Per S.B. Shukre, J.)
:
Heard. Rule. Rule made returnable forthwith. Heard
finally.
2. By this writ petition, the petitioners have sought a
declaration that the reservations made over their two lands under
the provisions of the Maharashtra Regional and Town Planning
Act, 1966 (hereinafter referred to as MRTP Act for short) have
lapsed by operation of law and the petitioners are entitled to utilize
the lands as free hold lands.
3. The petitioners are the owners of two lands bearing
survey No. 661/A and 661/B situated within the limits of Municipal
Council Ichalkaranji. Both these lands are reserved for the
purposes of dispensary, library and shopping centre/vegetable
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market and garden under the sanctioned development plan for the
city of Ichalkaranji, which came into force with effect from 7.5.1999.
4. The petitioners have submitted that for a period of 10
years after coming into force of the development plan providing for
reservation, the lands were not acquired nor any steps were
initiated for acquisition of the lands. Therefore, the petitioners
issued a purchase notice dated 30.10.2012 as per Section 127 of
the MRTP Act to the respondents-authorities, which was duly
received by them. By this notice, the petitioners called upon the
respondents-authorities to acquire the lands as per law. However,
neither the lands were acquired nor any steps for their acquisition
were taken within a period of 12 months from the date of receipt of
notice. The petitioners, therefore, have submitted that the
reservation over the subject lands have now been lapsed by virtue
of Section 127 of MRTP Act and the lands have become free hold
lands.
5. The claim in the petition is mainly contested by
respondent no.5- Municipal Council, Ichalkaranji. According to
respondent no. 5, although the notice dated 30.10.2012 issued
under Section 127 of MRTP Act was received by it, the notice did
not comply with the requirements of Section 127, as the
documents showing title or interest in the lands were not sent along
with the notice and, therefore, the question of accrual of any right
in favour of the petitioners under Section 127 MRTP Act would not
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arise. It is also submitted by respondent no. 5 that even a proposal
for acquisition of the land was sent to the Special Land Acquisition
Officer and as it was incomplete in some respects, it was sent back
to respondent no. 5. Now, respondent no. 5 is working on the said
proposal. On these grounds, respondent no. 5 is opposing the
petition.
6. We have heard learned counsel for the petitioner,
learned A.G.P. for respondent nos. 1 to 4 and learned counsel for
respondent no.5. We have carefully gone through the case
papers with the assistance of respective learned counsel.
7. The submission that the notice received by respondent
no.5, Municipal Council, was not accompanied by the documents
showing ownership or interest of the petitioners in the subject lands
and, therefore, the notice dated 30.10.2012 could not be
considered as a notice issued under Section 127 of MRTP Act is,
however, without any basis. It is not in dispute that this notice was
duly received by respondent no.5. The ownership of petitioners
over the lands in question is also not in dispute. Notice dated
30.10.2012 clearly makes a mention of the fact that copy of 7/12
extract showing ownership or interest of petitioners in the lands is
enclosed therewith. Respondent no. 5 does not say that copy of
7/12 extract was not received by it. All these facts together would
make the submission that notice was incomplete or invalid as
baseless and is rejected as such.
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8. As regards the acquisition of subject lands, we must
say that there is no dispute at all that no steps for acquisition of the
lands were initiated in the sense that notifications under Section 6
of the Land Acquisition Act, 1894, were not issued. In the case of
Kolte Patil Developers Ltd. vs. State of Maharashtra reported in
2015(1) Mh.L.J. 497, decided by the Full Bench of this Court, to
which one of us was a party, the doubt surrounding the expression
"no steps as aforesaid" used in Section 127 of MRTP Act (paras 10
and 11) has been cleared by following the majority view of the
Hon'ble Apex Court taken in the case of Girnar Traders (2) vs.
State of Maharashtra reported in (2007) 7 SCC 555. It was held
that steps towards acquisition would really commence when the
State Government would take active steps for acquisition of the
land leading to publication of declaration under Section 6 of the
Land Acquisition Act. Relevant observations of the Full Bench, as
appearing in paragraph 11, are reproduced as under :
"While dealing with interpretation of section 126(1)
(c) and section 127, the Apex Court observed that the
steps towards acquisition would really commence when
the State Government takes active steps for acquisition of
land leading to publication of declaration under section 6 of
the Land Acquisition Act. Any other interpretation of the
scheme would make the provisions only unworkable."
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10. It is obvious that the present case is fully covered by
the decision rendered in the case of Kolte Patil Developers, supra.
Admittedly no steps for acquisition of the subject lands by issuance
of notification under Section 6 of the Land Acquisition Act have
been initiated in the present case within a period of 12 months from
the date of receipt of notice under Section 127 by respondent no. 5.
The petition, therefore, deserves to be allowed by granting prayer
clauses (a) and (b).
9. Learned counsel for the petitioners has not pressed
prayer clause (d) relating to petitioners claim for compensation for
keeping the subject lands reserved without taking any steps for
their acquisition.
10. Writ petition is allowed in terms of prayer clause (a)
and (b). Rule is made absolute in above terms.
(S.B.Shukre, J.) (Naresh H. Patil, J.)
/TA/
