Bombay High Court
Subodh Motichand Bundelkhandi vs The State Of Maharashtra And ... on 17 April, 2017
Bench: R.M. Borde
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2736 OF 2016
Subodh Motichand Bundelkhandi
Age: 44 years, occu: business,
R/o Sadar Bazar, Chalisgaon,
Tq. Chalisgaon, Dist. Jalgaon. Petitioner
Versus
1 The State of Maharashtra,
Through The Director of Town Planning,
Pune, Dist. Pune
2 The Collector, Jalgaon
District Jalgaon
3 Assistant Director of Town Planning,
IInd floor, Bhikamchand Jain Market,
Jalgaon
4 The Chalisgaon Municipal council
through its Chief Officer,
Chalisgaon
5 The Planning Officer,
Municipal Council,
Chalisgaon Respondents
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Mr. A.S. Bajaj h/f Mr. G.L. Gujjar advocate for the petitioner
Mr. A.S. Shinde Assistant Government Pleader for Respondent No.1 & 3
Mr. P.S. Dhige h/f Mr. V.R. Dhorde advocate for respondent No.4
Respondent No.5 served.
_______________
CORAM : R.M. BORDE &
K.L. WADANE , JJ
(Date : 17th APRIL, 2017.)
ORAL JUDGMENT
(Per: R.M. Borde, J)
1 Heard.
2 Rule. With consent of the parties, petition is taken up for
final disposal at admission stage.
3 The petitioner is praying for declaration that, the reservation
in respect of land survey No.308/1 admeasuring 1 H, 65 R situate
at Chalisgaon, being reservation No.40 provided under the Final
Development Plan of Chalisgaon, prepared in 1990 shall stand
lapsed in view of provisions of section 127 of the Maharashtra
Regional Town Planning Act, 1966 (MRTP Act, 1966).
4 The land belonging to the petitioner, as described above, is
earmarked for public purpose under the Final Development Plan
prepared for Chalisgaon town on 1.3.1990. It is the contention of
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the petitioner that, even after lapse of 17 years from the date of
enforcement of the Plan, no steps were taken and as such, the
petitioner issued a Notice to the Planning Authority under section
127 of the MRTP Act on 2.4.2007, requesting to take steps as
provided under the Act. It has been further informed by the
petitioner that, in the event of failure of the respondent-Municipal
Council to take steps, reservation in respect of the property shall
stand lapsed and the land would be available to the petitioner for
development, as in case of adjacent land provided under the
relevant plan. The petitioner tendered an application, seeking
sanction of the layout on 25.3.2009. However, the application was
not considered favourably. The petitioner approached this Court
earlier by presenting Writ Petition No.7295 of 2013, seeking
declaration in respect of survey No.308/1 to the effect that, the
reservation stood lapsed in view of operation of provisions of
section 127 of the MRTP Act. The Municipal Council presented
reply and contended specifically that, the notice dated 2.4.2007
under section 127 is not received by the Municipal Council and as
such there arises no question of lapsing of reservation. The
petitioner again issued a purchase notice within contemplation of
section 127 of the MRTP Act on 15.12.2014, which has been duly
received by the Municipal Council. Inspite of issuance of notice,
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no steps within contemplation of section 127 were taken by the
Planning Authority. As such, according to the petitioner,
reservation, designation or allotment under the relevant
Development Plan shall stand lapsed.
5 It is not a matter of dispute that, the land acquisition
proceedings have not been initiated and Notification under section
6 has not been issued. In view of ratio laid down in Girnar
Traders V/s State of Maharashtra and others (2007) 7
SCC 555, taking of step within meaning of provisions of section
127(1) of the Act is issuance of a Notification under section 6 of
the Land Acquisition Act which has not been taken by the planning
authority or the acquiring body or the land acquisition authority
and as such, by operation of provisions of law, the reservation,
allotment or designation under the relevant final development
plan in relation to the property of the petitioner shall stand
lapsed.
6 Counsel appearing for respondent states that, the provisions
of section 127(1) has undergone amendment and two years
period is provided for planning authority to take steps. The
amended provisions came into effect on 29.8.2015 and the notice
issued by the petitioner is dated 15.12.2014 i.e. before the date
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of enforcement of amended provisions of the Act. In view of
Judgment delivered by the Division Bench of this Court in the
matter of Vishnuvasant Developers, Digras and others
Versus State of Maharashtra (2017 (2) Mh.L.J. 284) the
amended provisions of Section 127(1) of the Act in respect of
extended period for taking effective steps, of 24 months as
against 12 months as provided by unamended provisions would
not be applicable to the matter, where owner or any person
interested in the land, has served a notice on the planning or the
appropriate authority, as the case may be, before the amended
provisions came in to effect on 29.8.2015.
7 The contention raised by the respondent Municipal Council
that provisions of amended Section shall apply, is, therefore
devoid of substance.
8 For the reasons as aforesaid, the writ petition deserves to
be allowed and it is accordingly allowed. It is hereby declared that
the reservation, allotment and designation under the Final
Development Plan prepared for Chalisgaon Municipal Council in
relation to the property shall stands lapsed and the land shall be
available for petitioner for development as is permissible in case
of adjacent land under the relevant development plan. The
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declaration in respect of lapsing of reservation shall be published
in the official gazette, as provided in sub-section 2 of Section 127
of the MRTP Act, within a period of six months from today.
9 Rule is made absolute accordingly.
10 There shall be no order as to costs.
(K.L. WADANE, J) (R.M. BORDE, J)
vbd
