Bombay High Court
Shri. Madanlal Nathmal Navandhar ... vs Sangli, Miraj And Kupwad ... on 12 April, 2016
Bench: Ranjit More
Dixit
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3564 OF 2014
1. Madanlal Nathmal Navandhar ]
Age - 80 years, ]
Freedom Fighter & Senior Citizen ]
]
2. Vijay Madanlal Navandhar, ]
Age - 54 years ]
]
3. Vinod Madanlal Navandhar, ]
Age - 50 years ]
]
4. Kiran Balkrishna Deshpande
ig ]
Age - 53 years ]
]
5. Uday Balkrishna Deshpande ]
Age - 51 years ]
]
6. Shodhan Balkrishna Deshpande ]
Age - 49 years ]
]
All adults, R/o. 14, North Shivaji Nagar, Sangli. ] .... Petitioners
Versus
1. Sangli, Miraj & Kupwad Municipal Corporation, ]
Through the Commissioner, Sangli. ]
]
2. The Assistant Director, ]
Town Planning Department, Sangli. ]
]
3. The State of Maharashtra, ]
Through the Secretary, ]
Urban Development Department, ]
Mantralaya, Mumbai - 400 032. ] .... Respondents
Mr. T.S. Ingale for the Petitioners.
Mr. Sudhir Prabhu for Respondent No.1.
Mrs. M.P. Thakur, A.G.P., for Respondent Nos.2 and 3.
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CORAM : RANJIT MORE &
DR. SHALINI PHANSALKAR-JOSHI, J.J.
DATE : 12TH APRIL 2016.
ORAL JUDGMENT : [Per Dr. Shalini Phansalkar-Joshi, J.]
1. Rule. Rule is made returnable forthwith. Heard finally at the stage of
admission, by consent of the parties.
2. By this Petition, preferred under Article 226 of the Constitution of
India, the Petitioners seek declaration that the reservation in respect of
their land bearing Survey No.1807, admeasuring about 3358.8 sq.mtrs.,
situate at Sangli, being Reservation Site No.126, as 'Municipal
Dharmashala and Staff Quarters' in the Sanctioned Development Plan of
Respondent No.1-Municipal Corporation has lapsed under the provisions
of Section 127 of Maharashtra Regional Town Planning Act, 1966, (for
short "the MRTP Act"), and the said land is available to the Petitioners for
the purpose of development, which is permissible according to law.
By this Petition, the Petitioners are also seeking further declaration
that the Notification No.TPS-2008/244/CR1814/09/DP dated 4th April 2012
issued by Respondent No.3-State of Maharashtra, under Section 31(1) of
the MRTP Act, sanctioning the Revised Development Plan in respect of
the Petitioners' aforesaid land, thereby keeping once again under
reservation for 'Extension of Fire Brigade and Staff Quarters', bearing Site
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No.86, is illegal, arbitrary and bad in law. Hence, it should be set aside in
respect of Petitioners' land. Consequently, Respondents be directed to
delete the said reservation in the sanctioned Revised Development Plan.
3. Undisputed fact is that the Petitioners are the owners and holders of
the aforesaid land, which was shown as 'reserved for Municipal
Dharmashala and Staff Quarters' in the Sanctioned Development Plan of
Sangli City dated 26th April 1979, which came into force w.e.f. 30 th June
1979. Respondent No.1, the then Sangli Municipal Council, has not taken
any steps to acquire the said reserved land for more than ten years
thereafter. Hence, from time to time, the Petitioners' predecessor-in-title
and thereafter the Petitioners had issued various notices to Respondent
No.1-Municipal Corporation to take necessary steps for acquisition of the
said land, or, to delete the reservation, if the land is not required for the
purpose for which it was reserved. Respondent Nos.1 and 2 failed to
comply with all these notices on the excuse that the said land is required
for public purpose of 'Extension to Fire Brigade and Staff Quarters' and,
accordingly, the steps are being taken for reservation of the said land in
the Revised Development Plan, to be submitted to the Government.
Hence, ultimately, Petitioners were constrained to serve purchase notice
dated 9th August 2010 on Respondent No.1-Municipal Corporation, under
Section 127 of the MRTP Act. Despite receipt of the said notice and even
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after the lapse of more than a year from the date of receipt of the said
notice, Respondent No1-Municipal Corporation did not take any steps for
acquisition of the said land. Meanwhile, a proposal submitted by the
Petitioners for development of the said land came to be refused by
Respondent No.1-Municipal Corporation vide its letter dated 11 th June
2013 on the ground that, in the Development Plan submitted by
Respondent No.1-Municipal Corporation to the State Government, the
Petitioners' land has been re-designated for new purpose of 'Extension to
Fire Brigade and Staff Quarters' and the State Government has
sanctioned the Development Plan, under Section 31(1) of the MRTP Act,
by issuing impugned Notification No.TPS-2008/244/CR1814/09/DP dated
4th April 2012, which came into force w.e.f. 20 th April 2012. The Petitioners
have, therefore, approached this Court seeking necessary reliefs, as
stated above.
4. Learned counsel for the Petitioners, at the time of hearing of the
Petition, relied upon a plethora of the case laws of the Supreme Court and
this Court, right from the case of Bhavnagar University Vs. Palitana
Sugar Mill (P) Ltd. & Ors., (2003) 2 SCC 111, to Shrirampur Municipal
Council, Shrirampur Vs. Satyabhamabai Bhimaji Dawkher & Ors.,
(2013) 5 SCC 627, including the decision of this Court in Uday
Madhavrao Patwardhan & Ors. Vs. Sangli, Miraj and Kupwad
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Municipal Corporation, Sangli & Ors., in Writ Petition No.9168 of
2013 dated 9th January 2015, which pertains to the same Municipal
Corporation i.e. Respondent No.1 herein.
5. The law, as laid down in these various authorities, is unequivocal to
the effect that, once the purpose for which the land was reserved in the
sanctioned Development Plan has not been acquired for that purpose, the
valid statutory right is acquired by the land owner, after the expiry of
period of ten years from the date of reservation made in the sanctioned
Development Plan and on the expiry of the period of one year from the
date of service of purchase notice, issued under Section 127 of the MRTP
Act. The provisions of Section 127 of the MRTP Act are also crystal clear
to that effect.
6. In this case, the initial sanctioned Development Plan of Sangli City
dated 26th April 1979 came into force w.e.f. 30 th June 1979. In the said
Development Plan, Petitioners' land was shown as 'Reserved for
Municipal Dharmashala and Staff Quarters'. Admittedly, for a period of
more than ten years since the date on which the sanctioned Development
Plan came into force and till expiry of the period of one year from service
of purchase notice dated 9th August 2010, the State Government has not
commenced the proceedings to acquire the said land by following the
procedure, as provided under Sections 4 and 6 of the Land Acquisition
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Act, 1894. Therefore, the reservation of the land has automatically lapsed.
Once the reservation of the land has been lapsed, the consequences
have to follow. As a result thereof, Petitioners' land has to be deemed to
be released from such reservation, allotment or designation and thereby
became available to the Petitioners for the purpose of development, as
otherwise permissible under the relevant law.
7. The only argument advanced by learned counsel for the
Respondents is that. the Petitioners' land is designated for reservation
purposes again in the Revised Development Plan submitted by
Respondent No.1-Municipal Corporation to the State Government for
sanction. According to the Respondents, the State Government has
sanctioned the Revised Development Plan, under Section 31(1) of the
MRTP Act, by issuing impugned Notification No.TPS-
2008/244/CR1814/09/DP dated 4th April 2012, in which the Petitioners'
land is retained and re-designated for new purpose of 'Extention to Fire
Brigade and Staff Quarters' bearing Site No.86. According to learned
counsel for the Respondents, as this Notification dated 4th April 2012 had
come into force w.e.f. 20th April 2012, the reservation on the Petitioners'
land has automatically revived. Hence, Petitioners are no more entitled for
permission to develop the said land.
8. Hence, now the only question for consideration in this Writ Petition
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is, 'whether the Petitioners' land can again be designated as 'reserved',
thereby depriving the Petitioners from the rights accrued to them on
account of lapse of reservation on the said land, in view of the provisions
of Section 127 of the MRTP Act? The law in this respect is no more res
integra in view of the Judgment of the Apex Court in the case of
Bhavnagar University (Supra), wherein it is categorically held that, if the
land reserved / designated for specific purposes, as mentioned in Section
127 of the MRTP Act, is not acquired for more than ten years from the
date of coming into force all the Development Plans, despite service of
notice by the land owner or persons interested therein, the land would
stand de-reserved / de-designated and the reservation / designation
would not get automatically extended or revived by virtue of revision of the
Development Plan under Section 21 of the MRTP Act.
9. The Division Bench of this Court has also in the case of Baburao
Dhondiba Salokhe Vs. Kolhapur Municipal Corporation & Anr., 2003
(5) Bom.C.R. 232, relying on the decision of the Apex Court in the
Bhavnagar University (Supra), further confirmed that,
"The revision of Development Plan cannot take away
the right of the owner in terms of sub-section (2) of
Section 127 of the MRTP Act. Section 38 does not
envisage that despite the fact that in terms of Section
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127, the designation or reservation has lapsed, the
same, only because the Draft Revised Development
Plan is made, would automatically given rise to revival
thereof. Section 38 does not manifest a Legislative
Intent to curtail or take away the right acquired by the
land-owner under Section 127 of MRTP Act of getting
the land de-freezed. The owner is thus entitled to
develop his land and the Authorities cannot refuse
permission on the ground that the land is again shown
as 'reserved' in the Revised Draft Development Plan,
after the same has been released under Section 127 of
the MRTP Act".
10. Therefore, the scenario which emerges is that, the law laid down by
the Division Bench of this Court in Baburao D. Salokhe (Supra) will
squarely apply to this case.
11. In the light of this clear legal position, it has to be held that the
Respondents cannot, by issuance of fresh Notification dated 4th April
2012, again reserve or re-designate the land of the Petitioners, thereby
depriving them of the rights which had already accrued to them by virtue
of Section 127 of the MRTP Act. The Petitioners are thus entitled to
develop their land and Respondents cannot refuse permission to them on
the ground that the land is again shown as 'reserved' in the Revised
Development Plan.
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12. We are, therefore, allowing this Petition by passing following order :-
"O R D E R"
(i) We hold and declare that the reservation in respect of
the Petitioners' land bearing Survey No.1807,
admeasuring about 3358.8 sq.mtrs. situate at Sangli,
being Reservation Site No.126 as 'Municipal
Dharmashala and Staff Quarters' in the sanctioned
Development Plan of Respondent No.1-Municipal
Corporation has lapsed, under the provisions of
Section 127 of the MRTP Act, and the said land is
available to the Petitioners for the purpose of
development, as otherwise permissible under the law.
(ii) We further hold and declare that the impugned
Notification No.TPS-2008/244/CR1814/09/DP dated
4th April 2012, issued by Respondent No.3-State of
Maharashtra, under Section 31(1) of the MRTP Act,
sanctioning the Revised Development Plan in respect
of the Petitioners' aforesaid land, thereby keeping
once again under reservation for 'Extension of Fire
Brigade and Staff Quarters', bearing Site No.86, is
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illegal, arbitrary and bad in law and the same is
hereby quashed and set aside.
13. Rule is made absolute accordingly in the above terms.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]
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