Kishanrao Jethuji Halde And ... vs The Planning Authority And Others
2016 Latest Caselaw 2696 Bom

                                                 1                         WP-8502.15


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                           BENCH AT AURANGABAD

                            WRIT PETITION NO. 8502 OF 2015




                                                     
     1.       Kishanrao S/o Jethuji Halde,
              Age: 71 years, Occu: Agriculture,he
              R/o : 216, Nanded H. Society,
              Vijaynagar, Nanded, Ta. And




                                                    
              Dist. Nanded.

     2.       Chandrakala W/o Kisanrao Halde,
              Age: 61 years, occu: Agriculture,
              R/o : as above.




                                        
     3.       Jagdish S/o Kisanrao Halde,
              Age: 31 years, occu: Service,
                             
              R/o as above.                                   ...PETITIONERS

              versus
                            
     1.       The Planning Authority,
              for Nanded Waghala City Municipal
              Corporation Nanded.
      

     2.       Nanded Waghala City Municipal
              Corporation, Nanded, through,
              The Commissioner.
   



     3.       The State of Maharashtra,
              Urban Development Department,
              Mantralaa, Mumbai-32





              through the Secretary                           ...RESPONDENTS

                                       .....
     Mr. Pratap P. Mandlik, Advocate for petitioners
     Mr. N.D. Narwadkar, Advocate for respondents No. 1 and 2
     Mr. S.M. Ganachari,AGP for respondent No. 3





                                       .....

                                   CORAM : S. V. GANGAPURWALA AND
                                           K.K. SONAWANE, JJ.

DATED : 9th JUNE, 2016.

ORAL JUDGMENT :-( Per : S.V. Gangapurwala, J.)

1. Rule. Rule made returnable forthwith. Heard the learned counsel

for appearing parties finally, with consent.

2 WP-8502.15

2. Mr. Mandlik, learned counsel for petitioners submits that the

petitioners are owners and possessors of land bearing Survey no.

59/B/2 admeasuring 8 Acres 20 Gunthas situated at Nanded. In the

year 1996 draft development plan was prepared by respondent No. 2

and out of it land admeasuring 7 acres of the petitioners was reserved

for playground/garden. Thereafter, draft development plan came into

effect from 16-03-2004. The land of the petitioners were shown

reserved for playground. Learned counsel for the petitioners submits

that as no steps were taken for acquisition within ten years from the

date of finanalization of draft development plan, the petitioners had

issued notice under section 127 of the Maharashtra Regional and Town

Planning Act, 1966 (for short "MRTP Act") on 05-03-2014. As said

notice was premature, petitioners thereafter on 19-08-2014 had issued

notice under section 127 of MRTP Act. Respondent- Planning authority

directed the petitioners to submit document such as 7/12 extracts and

the map. The petitioners again on or about 23-09-2014 submitted 7/12

extracts and measurement map. The same is also received by

respondent No. 2 on 23-09-2014.

3. Learned counsel submits that within one year from the date of

issuance of notice, respondents have failed to take up acquisition

proceedings and did not issue declaration under section 126 of MRTP

Act read with section 6 of the Land Acquisition Act, 1894, as such a

reservation stands lapsed. To buttress his submission, learned counsel

for the petitioners relies on the judgment of the Apex Court in the case

of Girnar Traders Vs. State of Maharashtra and others reported in 2011(3)

3 WP-8502.15

SCC 1.

4. Mr. Narwadkar, learned counsel for respondent No. 2 strenuously

contends that notice dated 19-08-2014 was not in consonance with law

and the documents were not supplied even in December-2014,

respondent No. 2 has issued notice to the petitioners to submit the

documents, however, the same have not been submitted. Learned

counsel submits that considering amendment to section 127 of the

MRTP Act, notice period is of two years and respondent No. 2 has

already taken steps for acquisition. It has submitted proposal to the

concerned authority in December-2014, as such, it cannot be said no

steps are taken by respondent No. 2.

5. We have considered the submissions canvassed by learned

counsel for respective parties. Amendment to section 127 of MRTP Act

enlarging notice period to two years has come into force with effect

from 29-08-2015, the same is after lapse of one year from the date of

issuance of notice by the present petitioners. Petitioners have

submitted the documents as required, as is clear from the application,

which is received by respondent No. 2. Receipt to that effect is not

denied by respondent No. 2.

6. The provision of section 127 of the MRTP Act, acts as fetters on

the power of eminent domain. Lapse of reservation on expiry of

stipulated period as contemplated under section 127 of the MRTP Act is

axiomatic. The petitioners have submitted the 7/12 extract showing

their ownership. Notice under Section 127 of the MRTP Act does not

4 WP-8502.15

require submission of measurement map.

7. Considering the aforesaid facts and judgment of the Apex Court

in the case of Girnar Traders (Supra), reservation would stand lapsed. It

is not disputed that till the date no declaration under section 126 of the

MRTP Act has been issued.

8. In light of the above, writ petition is allowed in terms of prayer

clause "B". Rule is made absolute accordingly. No costs.

                               Sd/-                          Sd/-

           [ K. K. SONAWANE, J.]              [S. V. GANGAPURWALA, J.]

     MTK