Bombay High Court
Mrs. Hemlata @ Suvarna W/O ... vs The State Of Mah. Thr. The ... on 25 October, 2016
Bench: V.A. Naik
WP 796/11 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 796/2011
Mrs.Hemlata @ Suvarna w/o Kamalakar Puranik,
Aged about 67 years, Occupation-Agriculturist,
R/o 104, Mangalam Apartments, 241/242,
Lendra Park, Ramdaspeth, Nagpur. PETITIONER
.....VERSUS.....
1. The State of Maharashtra,
through the Principal Secretary,
Department of Urban Development,
Mantralaya, Mumbai-32.
2. The Nagar parishad, Warora,
through its Chief Executive Officer. RESPONDENTS
Shri S.Y. Deopujari, counsel for the petitioner.
Shri A.S. Fulzele, Additional Government Pleader for the respondent no.1.
Shri M.I. Dhatrak, counsel for the respondent no.2.
CORAM :SMT.VASANTI A NAIK AND
KUM. INDIRA JAIN, JJ.
: 25 TH OCTOBER, 2016.
DATE
ORAL JUDGMENT (PER : SMT.VASANTI A. NAIK, J.)
By this writ petition, the petitioner seeks a declaration
that the reservation of the land of the petitioner bearing survey
no.290/1 of Mouza Warora vide reservation nos.40, 41 and 51 has lapsed
under section 127 of the Maharashtra Regional and Town Planning Act,
1966.
WP 796/11 2 Judgment
2. The land of the petitioner was reserved vide reservation
nos.40, 41 and 51 in the final development plan that was published on
15.10.1986 for open space, market and parking area. Since nothing was
done in the matter by the appropriate authority for acquiring the land
within a period of ten years from the publication of the final development
plan, the petitioner served a notice under section 127(1) of the
Maharashtra Regional and Town Planning Act, on the respondents, on
15.12.2009. Since no effective steps are taken by the respondents in the
matter of acquisition of the land and since the section 6 notification is not
issued within a period of one year from the date of service of the notice,
the petitioner has sought the declaration that the reservation of the land
of the petitioner has lapsed under the provisions of section 127 of the
Maharashtra Regional and Town Planning Act, 1966.
3. Shri Fulzele, the learned Additional Government Pleader
appearing on behalf of the respondent no.1 and Shri Dhatrak, the learned
counsel appearing for the respondent no.2, do not dispute that the notice
under section 127 of the Act was served on the respondents, on
15.12.2009. It is also not disputed that within a period of one year from
the service of notice, the respondents had not issued a notification under
section 6 of the Land Acquisition Act, 1894. It is, however, stated on
behalf of the respondent no.2 that during the pendency of the writ
petition, the final development plan has been modified on 03.01.2015
and the land is now earmarked for some other purpose.
WP 796/11 3 Judgment
4. On hearing the learned counsel for the parties, we find that
the declaration as sought by the petitioner needs to be granted. There is
no dispute that ten years had lapsed from the publication of the final
development plan on 15.10.1986 and no steps were taken by the
respondents for the acquisition of the land. It is also admitted that the
petitioner served a notice on the respondents under section 127 of the
Act, on 15.12.2009 and no effective steps are taken by the respondents
from the date of service of the notice, for the acquisition of the land and
Section 6 notification is not issued within one year from 15.12.2009.
Since all the conditions that are required to be satisfied for issuance of a
declaration in respect of the deemed lapsing of the reservation under
Section 127 of the Act of 1966 are satisfied, the declaration needs to be
granted. Merely because there is a modification in the development plan
with effect from 03.01.2015, the petitioner cannot be deprived of the
relief. It is held by this court in the judgment, dated 21.01.2016 in Writ
Petition No.3615 of 2015, after relying on the judgment of the Hon'ble
Supreme Court, reported in 2015(1) Scale 578 (Godrej and Boyce Versus
State of Maharashtra & Others) that when a valuable statutory right under
section 127 of the Act was acquired by the petitioner after the expiry of
the notice period, the State Government would not be entitled to modify
the development plan. Since it is held in the judgment referred to
hereinabove that the publication of the modified development plan would
be inconsequential while granting the relief under section 127 of the Act,
WP 796/11 4 Judgment
the respondent no.2 cannot rely on the modification of the development
plan on 03.01.2015 to deny the relief to the petitioner.
5. Hence, for the reasons aforesaid, the writ petition is allowed.
It is hereby declared that the reservation of the land of the petitioner vide
reservation nos.40, 41 and 51 in terms of the final development plan,
dated 15.10.1986 has lapsed and the petitioner is free to develop the land
as is permissible to the adjacent land as per the relevant development
plan.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
