Bombay High Court
Mahendra Ajayraj Kothari And ... vs The State Of Maharashtra And ... on 27 April, 2016
Bench: A.V. Nirgude
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11351 OF 2015
1] Shri Mahendra Ajayraj Kothari ,
Age : 60 Years, Occu. Business & Agriculture,
R/o 99, Bhavani Peth,
Jalgaon, Dist. Jalgaon.
2] Shri Saurabh Mahendra Kothari,
Age : 32 Years, Occu. Business & Agriculture,
R/o 99, Bhavani Peth,
Jalgaon, Dist. Jalgaon.
3] Sau. Kusum Sajjankumar Agarwal,
Age : 61 Years, Occ. Business,
R/o 298, Jilha Peth,
Jalgaon, Dist. Jalgaon.
4] Shri Bharat Dattatreya Amalkar,
Age : 55 Years, Occ. Business & Agriculture,
R/o "Pasay", in front of MJ College,
Jalgaon, Dist. Jalgaon.
5] Smt. Shantabai Ramvilas Joshi,
Age : 75 Years, Occ. Business & Agriculture,
R/o flat No.4 & 5, Plot No.15, Jai Nagar,
Jalgaon, Dist. Jalgaon.
6] Shri Umesh Ramvilas Joshi,
Age : 42 Years, Occu. Business & Agriculture,
R/o flat No. 4 & 5, Plot No.15, Jai Nagar,
Jalgaon, Dist. Jalgaon.
7] Shri Vijaykumar Dipchand Chordia,
Age : 58 Years, Occu. Business,
R/o Mahavir Chambers, Jaikisan Wadi,
Jalgaon, Dist. Jalgaon.
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8] Shri Vipin Vijaykumar Chordia (HUF),
Age : 34 Years, Occu. Business,
R/o Mahavir Chambers, Jaikisan Wadi,
Jalgaon, Dist. Jalgaon.
[Petitioners No. 1 to 6 and 8 through their
Power of Attorney Holder, Petitioner No.7.)
... Petitioners.
Versus
1]
The State of Maharashtra,
Through the Secretary,
Ministry of Urban Development
Mantralaya, Mumbai - 32.
2] Municipal Corporation Jalgaon,
Through its Commissioner,
3] The Town Planner,
Municipal Corporation Jalgaon,
Jalgaon.
4] The District Collector,
Jalgaon.
5] Commandant General Home-guards &
Old Secretariat, Annexe Building,
3rd Floor, M.G. Road, Near Elphinstan College,
Fort, Mumbai - 400 032.
... Respondents.
...
Mr. A. P. Bhandari, Advocate for Petitioners.
Mr. V. M. Kagne, AGP for Respondent Nos.1 & 4.
Mr. V. D. Gunale, Advocate for Respondent No.2 & 3.
Respondent No.5 Served.
...
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CORAM : A. V. NIRGUDE &
V. L. ACHLIYA, JJ.
DATE : 27th APRIL, 2016.
ORAL JUDGMENT : (PER V. L. ACHLIYA, J.)
. Rule. Rule is made returnable forthwith. With consent
of parties, Petition is heard finally at the stage of admission.
2]
The petitioners herein are praying for declaration that
the property belonging to them, i.e. land bearing Gut No. 276,
admeasuring 10475 sq. mtr. from village Pimprala, Taluka &
District Jalgaon, situated within the Municipal limits of Jalgaon and
part of reservation site No.77 for Home-guards (hereinafter referred
as "said property") is deemed to have been released from
reservation in view of provisions of Section 127 of the Maharashtra
Regional and Town Planning Act, 1966.
3] It is contention of the petitioners that the property
referred above reserved in the Development Plan of City of Jalgaon.
First part of the plan was sanctioned on 07.03.2002 and for the
excluded part the Development Plan was sanctioned on 10.08.2004
and same came into operation w.e.f. 01.10.2004. In the Final
Development Plan Reservation No. 77 is shown as "Site for Home-
guards". Petitioners claims to be owner of said property.
4] In the year 2004, District Collector, Jalgaon sanctioned
1 Hector 68 R land from Gut No. 2207 of village Nashirabad, Taluka
and District Jalgaon for training center of Home-guards and now
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there is two storied building constructed for Home-guard exist on
said land. In view of this, the land in question no more requires for
respondent no.5, i.e. Home-guards. On 03.02.2014, the petitioners
made representation to respondent no.1 for deleting the land from
reservation. Although some communications were exchanged, but
no fruitful steps were taken. Since the land was not acquired for
the period of more than ten years for the purpose for which it was
reserved, the petitioners issued notice dated 18.10.2014 to
respondents as contemplated under Section 127 of MRTP Act. By
the notice issued under Section 127 of MRTP Act, the respondents
were called upon to acquire the said land within statutory period
provided under Section 127 of MRTP Act. The notice was duly
served upon the respondents. By the communication dated
29.10.2014, the respondent No.3 called upon the petitioners to
submit measurement map of the property which was responded by
the petitioners vide letter dated 18.11.2014 and clarified the
position. Once again he urged the respondents to take necessary
steps to acquire the land. Vide communication dated 26.11.2014
the respondent no.3 informed the petitioners that the responsibility
of getting the lands acquired is of respondent no.5 i.e. appropriate
authority for the purpose of whom the land was reserved.
5] By letter dated 9.1.2015, the Senior Administrative
Officer Home-guards, Maharashtra State informed the respondent
no.3 that the land owned by the petitioners is not required for them
as the requisite building is already available with the Home-guard
department. Vide representation dated 24.02.2015 the petitioners
requested the respondent no.5 for deletion of land of petitioners in
terms of section 50 of the Act. In response to the representation
vide communication dated 09.03.2015, Senior Administrative
Officer, Home-guards, Maharashtra State informed the petitioners
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that, in view of letter dated 09.01.2015 the petitioner need not
make further communication with the Home-guards department.
6] Since the issuance of notice under Section 127 of MRTP
Act, no steps were taken within statutory period of one year or
thereafter to acquire the land in question and the reservation of
the land in question lapsed on expiry of period of one year from the
issuance of statutory notice, the petitioners have filed this petition
for seeking the declaration as referred above.
7] The respondent Nos.2 & 3 have filed affidavit-in-reply.
In the reply filed, the material facts as pleaded in the petition are
not disputed. It is the stand of the respondent Nos.2 & 3 that for
Reservation No.77 the acquiring authority is Home-guard
department. However, the notice was served upon the home
department as well as Corporation. It is further stated that, the
Home Department has already communicated to Urban
Development Department of Government that they do not want
said land. It is further stated that, the Corporation is not planning
authority for said reservation for Home-guards and therefore the
petitioners are not entitle to seek any relief against respondent
Nos.2 & 3.
8] We have heard the submission advanced by learned
counsel for the petitioners and the respondents. The respondent
No.5 i.e. the Commandant of Home-guards, State of Maharashtra
has not filed any reply though notice of final disposal was sent in
the matter. The communication as referred above made on the
part of respondent no.5 is not disputed by filing the affidavit.
Learned AGP appeared for the respondent no.5 and sought time to
take instructions in the matter. However, we have not entertained
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the request for the sole reason that there are two communications
placed on record made from the office of respondent no.5
informing the petitioners that the Home-guards department do not
require the land in question reserved for them. Thus there is no
dispute as to fact that, steps have not been taken for acquisition of
said land within one year from the date of receipt of notice under
Section 127 of MRTP Act.
9] There is no dispute that within the period of ten years
of date of operation of the development plan, steps have not been
taken for acquisition of said land. So also before the expiry of
statutory period of one year of service of notice and thereafter,
steps have not been taken to acquire the said land. Service of
statutory notice is not disputed. The ownership of petitioner is also
not disputed. The fact is not in dispute that the Final Development
Plan of City of Jalgaon become operational w.e.f. 01.10.2014. The
statutory notice U/s 127 of MRTP Act was issued on 18.10.2014, i.e.
after the period of 10 years. The fact is also not in dispute that
within the period of one year from service of statutory notice, steps
have not been taken to acquire the said land. In view of this, the
said land under reservation belonging to petitioner shall be
deemed to have been released from reservation and available to
owner as in case of the adjoining property in view of operation of
Section 127 of MRTP Act.
10] In this view of the matter, it is hereby declared that the
reservation/allocation or designation in the final Development Plan
in respect of said land bearing Gut No. 276, admeasuring 10475
sq. mtr. from village Pimprala, Taluka & District Jalgaon, situated
within the Municipal limits of Jalgaon and part of reservation No.77,
belonging to the petitioner is deemed to have lapsed and the said
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land is available to the owner for the purpose of development of
other use permissible in the case of adjoining land under the
relevant development plan.
11] The releasing of reservation/allocation/designation
under Sub Section 1 of Section 127 of the Act shall be notified in
the Government Gazette as expeditiously as possible within (6) six
months from today. Rule is made absolute to the extent specified
above. There shall be no order as to costs.
[V. L. ACHLIYA]
ig [A. V. NIRGUDE]
JUDGE JUDGE
Tandale/-2016
