Bombay High Court
Shri. Virendasinh Pravinsinh ... vs The State Of Maharashtra Through ... on 13 April, 2016
Bench: Ranjit More
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11148 OF 2015
Shri. Virendrasing Pravinsinh Ghatage, ]
age 24 years, Occupation: Business, ]
r/o 249/A/2B, Jay Villa Nagala Park, ]
Kolhapur. ] .. Petitioner.
V/s.
1. The State of Maharashtra
Through the Secretary
ig ]
]
Urban Development Department, ]
Mantralaya, Mumbai 400 032. ]
]
2. The Director of Town Planning, ]
Maharashtra State, ]
Pune 400 001. ] Respondents
]
3. Murgud Municipal Council, ]
at & PO Murgud, Tal. Kagal, ]
District: Kolhapur ]
Through its Chief Officer. ]
]
4. The Assistant Director of Town ]
Planning & Town Planning Officer, ]
Kolhapur ]
Mr. Prashant Bhavake, for the petitioner.
Mrs. M. P. Thakur, AGP, for the Respondent-State.
Mr. Tanaji Mhatugade, for respondent No.3.
CORAM : RANJIT MORE &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
DATE : 13th APRIL, 2016.
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JUDGMENT. : [PER : DR. SHALINI PHANSALKAR-JOSHI, J.]
1. Rule.
2. Rule made returnable forthwith.
3. With the consent of the parties, heard finally at the stage of
admission.
4. By petition filed under Article 226 of the Constitution of India,
petitioner seeks declaration that reservation on his lands being
Reservation No.20 has been lapsed in view of the provisions of Section
127(2) of the Maharashtra Regional and Town Planning Act, 1966 (for
short called as, "MRTP Act"), and the said lands be declared free for his
use.
5. Brief facts of the petition are to the effect that the
Development Plan of the Murgud Municipal Council, Tal. Kagal, District:
Kolhapur, had come into force on 1st March, 1988. In the said plan, the
lands belonging to the petitioner bearing R.S. No.2/1/6, 2/1/16, 2/1/18,
2/1/19, 2/1/20, 2/2/9, 2/2/10, 2/2/11, 2/2/12, 2/2/13. 2/2/15, 2/2/16, 2/2/17,
2/3/1, 2/3/2, 2/3/3, 2/3/4 and 2/3/6, situate at Murgud, Tal. Kagal, District:
Kolahpur, bearing reservation No.20, were kept as reserved for cattle
market. As even after lapse of 10 years from the date when said plan
came into force, respondents did not take any action for acquisition of
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those lands, The petitioner served purchase notice upon respondent No.3
Municipal Council on 23.10.2012. Respondent No.3, however, did not take
any steps for acquisition of said lands within one year from the date of
service of purchase notice. Hence according to petitioner, in view of the
provisions of section 127(2) of MRTP Act, the reservation on his lands is
deemed to have been lapsed. The petitioner, therefore, requested
respondent No.2 to issue Notification in that regard in the official gazettee.
The State Government, however, failed to do so.
6. In the mean time, respondent No.1 vide Notification dated
16.3.2015, sanctioned draft development plan and in the said plan 70% of
the petitioner's lands are re-reserved for the cattle market. According to
petitioner, once his lands are free from reservation in view of the
provisions of section 127(2) of the MRTP Act, the said lands again cannot
be re-reserved thereby depriving him of his right to enjoy his own property.
This action on the part of respondents is illegal and hence liable to be
quashed and set aside.
7. This petition came to be resisted by respondent No.3
Municipal Council by filing affidavit of its Chief Officer, Shri. Balnath
Jagtap, contending inter alia that respondent No.3 being Municipal
Council and also Town Planning Authority is entitled to reserve and
acquire the lands as may be necessary, for the purpose of development.
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The Municipal Council of Murgud, in its General Body Meeting dated 2nd
January, 2013, had passed resolution No.101 and made modifications in
respect of reservations taking into consideration the position of the cattle
market and the need of the land for the cattle market. As per the said
resolution land admeasuring 48 gunthas from reservation No.9B is
decided to be acquired. The proposal to that effect is submitted to the
Director, Urban Development Department, State of Maharashtra on 9 th
October, 2013. In view of these facts it is urged that the declaration as
sought by the petitioner in respect of re-reservation on plot of land
admeasuring 48 gunthas, cannot be granted.
8. Having heard learned counsel for the petitioner, learned AGP
for the State and learned counsel for respondent No.3, we are, however,
of the opinion that this petition needs to be allowed.
9. Undisputedly, the petitioner is the owner of the above said
lands which were initially reserved in the development plan for Murgud
City. The said plan came into force w.e.f. 1 st March, 1998. However, even
after lapse of 10 years from the said date, no proceedings were taken for
acquisition of the said lands. As a result, petitioner served the purchase
notice dated 23.10.2012. Thereafter also within one year, neither the
lands of the petitioner were acquired nor any steps were taken for its
acquisition. In view thereof, in accordance with the provisions of Section
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127(2) of the MRTP Act, it has to be held that the petitioner's lands shall
be deemed to be released from such reservation/allotment/designation
and became available to him for the purpose of development as other
wise permissible. The provisions of Section 127(2) of the MRTP Act, are
unequivocal to that effect.
10. The only contention raised by learned counsel for respondent
No.3 is that some portion of the land of the petitioner, admeasuring 48
gunthas is again reserved in the Draft Development Plan submitted to the
Government in pursuance to the decision of the Planning Committee, in
General Body Meeting held on 22.12.2013. According to learned counsel
for respondent No.3, except for this portion of 48 gunthas, remainder land
of the petitioner is already released from the reservation.
11. However, in our considered opinion, even this 48 gunthas of
the land also which is shown as re-reserved in the Draft Development
Plan, needs to be released, considering the legal position. The rights and
interests which stood accrued to the petitioner on account of lapse of
reservation due to passage of time, cannot be taken away by re-reserving
the said portion of land.
12. In the case of Bhavnagar University -vs. Palitana Sugar
Mills Pvt. Ltd. 2003 (2) S.C.C. 111 when the similar issue was raised for
consideration it was held by the Apex Court that the statutory obligation
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cast on the State or appropriate authority u/s 38 of the MRTP Act, to
revise Development Plan cannot be read to mean that substantial right
conferred on the owner of the land or the person interested under Section
127(2) of the MRTP Act, is taken away. Section 38 does not envisage
that despite the fact that in terms of section 127(2), reservation has
lapsed, only because of Draft Revised Development Plan, automatically,
the said reservation will revise.
13.
This legal position is further confirmed by our High Court in
Baburao Dhondiba Salokhe -vs- Kolhapur Municipal Corporation and
anr, 2003 (5) Bom C.R.232, by holding that once reservation on the land
is lapsed due to passage of statutory period during which land was to be
acquired, the said right of the owner of the land cannot be taken away
indirectly by re-reservation in revised or final development plan. This
legal position squarely applies to the facts of the present case and hence
it has been held that the petitioner is entitled for the declaration as sought
by him.
14. The petition is accordingly allowed.
15. It is hereby declared that the entire reservation for cattle
market kept on petitioner's lands bearing R.S. No.2/1/6, 2/1/16, 2/1/18,
2/1/19, 2/1/20, 2/2/9, 2/2/10, 2/2/11, 2/2/12, 2/2/13. 2/2/15, 2/2/16, 2/2/17,
2/3/1, 2/3/2, 2/3/3, 2/3/4 and 2/3/6, situate at Murgud, Tal. Kagal, District:
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Kolahpur, being reservation No.20, has been lapsed in view of section
127(2) of the MRTP Act and the entire lands of the petitioner have been
released from reservations and available to the petitioner for his own use.
16. Rule made absolute in above terms.
[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]
