Bombay High Court
Pandit Hula Mali And Others vs The State Of Maharashtra And ... on 15 June, 2016
Bench: S.V. Gangapurwala
1 WP-7568.15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 7568 OF 2015
1. Pandit S/o Hula Mali,
Age: 66 years, Occu. Agri.
2. Smt. Mirabai Wd/o Lala Karnakar (Mali)
Age: 64 years, Occu. Household,
3. Sou. Prabhawati W/o Ravindra Mali,
Age; 52 years, Occu. Household.
4. Suresh S/o Lala Karnakar (Mali)
Age: 47 years, Occu. Agri.
5. Naresh S/o Lala Karnakar (Mali)
Age: 44 years, Occu. Service,
6. Arun S/o Lala Mahajan (Karnakar),
Age: 41 years, Occu. Service,
All R/o Khandeshi Galli, Taloda,
Tq. Taloda, Dist. Naudurbar. ...PETITIONERS
versus
1. The State of Maharashtra
Through its Secretary,
Urban Development Department,
Government of Maharashtra,
Mantralaya, Mumbai-32.
2. The Director of Town Planning
and Valuation Department,
Maharashtra State, Pune.
3. The Assistant Director,
Town Planning Department,
Nandurbar, Tq. & Dist. Nandurabar.
4. The Collector, Nandurbar,
Tq. & Dist. Nandurbar.
5. The Taloda Municipal Council,
Taloda, Tq. Taloda, Dist. Nandurbar
Through its Chief Officer. ...RESPONDENTS
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.....
Mr. Vijay B. Patil, Advocate for petitioners
Mr. N.B. Patil, AGP for respondents No. 1 to 4
Mr. Ajaykumar G. Magare, Advocate for respondent No. 5
.....
CORAM : S. V. GANGAPURWALA AND
K.K. SONAWANE, JJ.
DATED : 15th 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. Mr. Patil, learned counsel for the petitioners submits that on or
about 01-04-1966 development plan of respondent No. 5 - Taloda
Municipal Council, Taloda (for short "Council") was sanctioned. Said
development plan was revised with effect from 01-08-1986. In the
revised development plan land bearing Survey No. 164/2A/2 ( New
Survey No. 242/3A/2) situated at Taloda belonging to the petitioners
was reserved for garden as site No. 31. Learned counsel further
submits that no steps were taken by the respondents - authorities
either for declaration or acquisition. On 03-04-2014 the petitioners had
issued purchase notice to respondent No. 5 - Council under section 127
of the Maharashtra Regional Town Planning Act, 1966 ( for short "MRTP
Act") and the same was served upon it on the same day.
3. According to learned counsel for petitioners, respondents have
not taken any steps for acquisition, they have not issued any
declaration under section 126 of the MRTP Act read with section 6 of
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the Land Acquisition Act, 1894 ( for short "LA Act") for a period of one
year, as such, reservation stands lapsed. To buttress his submission,
learned counsel for 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) SCC 1.
4. Mr. Magare, learned counsel for respondent No. 5 - Council
submits that after receipt of purchase notice, the Council has sought
guidance from the authorities. Learned counsel admits that as yet
declaration under section 126 of the MRTP Act read with section 6 of
the LA Act has not been issued.
5. Mr. Patil, learned Assistant Government Pleader for respondent
submits that proposal has not been submitted by respondent - Council.
If proposal is submitted by the respondent - Council, same would be
decided as expeditiously as possible. As per amendment to section
127 of the MRTP Act, notice period is two years. As such, the
petitioners cannot claim benefit of the same.
6. We have considered the submissions canvassed by the learned
counsel for respective parties. Factual matrix of the matter as narrated
on behalf of the parties is not disputed. The petitioners have issued
purchase notice on 03-04-2014 and the same has been received by
respondent - Council on the same day. Thereafter, till date declaration
under section 126 of the MRTP Act read with section 6 of the LA Act
has not yet been issued, as admitted by respondent No. 5 - Council.
The provisions of section 127 of the MRTP Act is fetters on the power
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of eminent domain. Amendment to the section 127 of the MRTP Act,
prescribing period of two years has come into effect from
29-08-2015. The period of one year after issuance of purchase notice
has lapsed on 03-04-2015 i.e. prior to introduction of the amendment.
Lapsing of reservation on expiry of stipulated period would be
axiomatic. It is not disputed that till date declaration under section
126 of the MRTP Act, has yet been issued. Even considering the
amendment to section 127 of the MRTP Act, i.e. period is extended to
two years, said two years have also lapsed.
7. Considering the above, writ petition succeeds. Land bearing
Survey No. 164/2A/2 ( New Survey No. 242/3A/2) situated at Taloda
belonging to the petitioners reserved for garden as site No. 31 in the
revised development plan of the year 1986 stands released from the
reservation. The parties may take consequential steps pursuant to
dereservation of said land.
8. Writ petition is allowed. Rule is made absolute in above terms.
No costs.
Sd/- Sd/-
[ K. K. SONAWANE, J.] [S. V. GANGAPURWALA, J.]
MTK
