Rabiya Raju Bagwan And Anr vs Sawantwadi Municipal Council And ...
2017 Latest Caselaw 1994 Bom

Dixit

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                              WRIT PETITION NO.10259 OF 2013

        1. Rabiya Raju Bagwan,                              ]
           Aged 40 Yrs., Occ.: Housewife,                   ]
                                                            ]
        2. Hawabi Shabuddin Sayyed,                         ]
           Aged 37 Yrs., Occ.: Housewife,                   ]
                                                            ]
        Both residing at Salai Wada, Sawantwadi,            ]
        District Sindhudurg                                 ] ... Petitioners
                     Versus
        1. Sawantwadi Municipal Council                     ]
           and Town Planning Authority,                     ]
           Through its Chief Officer at                     ]
           Sawantwadi, Dist. Sindhudurg.                    ]
                                                            ]
        2. Collector of Sindhudurg,                         ]
           at Oras, Dist. Sindhudurg.                       ]
                                                            ]
        3. The District Town Planning Office,               ]
           Oros, Dist. Sindhudurg.                          ]
                                                            ]
        4. State of Maharashtra,                            ]
           Through Secretary,                               ]
           Urban Development Department,                    ]
           Mantralaya, Mumbai.                              ] ... Respondents

Mr. G.H. Keluskar for the Petitioners.

Mr. S.M. Railkar for Respondent No.1.

Mr. Vikas Mali, A.G.P., for Respondent Nos.2 to 4-State. Mr. V.C. Dwase, Chief Officer of Respondent No.1-Sawantwadi Municipal Council is present.

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CORAM : NARESH H. PATIL & DR. SHALINI PHANSALKAR-JOSHI, J.J.

DATE : 25TH APRIL 2017.

ORAL JUDGMENT : [Per Naresh H. Patil, J.]

1. Rule. Rule made returnable forthwith. Heard finally, by consent of

the parties.

2. Petitioners pray for a direction to declare that reservation in

respect of their land, bearing Survey No.55, Hissa No.9 and Survey

No.24A, Hissa No.1/7, which is described as C.T.S. No.4480 and 4479

in the City Survey Record, situate at Sawantwadi, Dist. Sindhudurg, for

construction of 24.0 meter wide Ring Road under the Development

Plan of Sawantwadi City stood lapsed and the said land be made

available to the Petitioners for the purpose of development.

3. Brief facts of the case that, on 1 st April 1989, Development Plan

of Sawantwadi City was sanctioned. The Petitioners' land was reserved

for construction of Ring Road under the Development Plan. The

Petitioners had issued purchase notice on 10th August 2012, under

Section 127 of the Maharashtra Regional and Town Planning Act,

1966, addressed to the Chief Officer of Respondent No.1-Municipal

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Council and Planning Authority and to the Collector i.e. Respondent

No.2 herein. Since after receipt of the said notice, no steps were taken

according to law by the Respondent No.1-Municipal Council within the

stipulated time-frame. On behalf of Respondent Nos.3 and 4, affidavit-

in-reply was filed by Mr. Sanjay R. Kurvey, Joint Director of Town

Planning, Konkan Division, Konkan Bhavan, Navi Mumbai. In

paragraph No.4 of the said affidavit, the Deponent states as under :-

"4. I state that, as mentioned above, the land in question is designated as 24.0 m wide Development Plan Road, which forms an integral part of the Development Plan for overall development of the city, including petitioners' remaining land. Further, petitioners' land is part of 24.0 m wide Development Plan Road, which runs from East to West, thereby connecting various parts of the city.

I state that Section 127 of the Maharashtra Regional and Town Planning Act, 1966, deals with lapsing of reservation, which, in general, relates to any kind of reservation for public purpose or allocation/designation for specific public purpose. However, as, in this case, it is the Development Plan Road, the blanket application of this provision will leave most of the adjoining property renderless to development, which can be developed only in case of availability of access i.e. road to the property."

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4. This Petition is pending since last about four years. Respondent

No.1-Municipal Council preferred not to file any reply. Therefore, on the

last date of hearing, i.e. on 20th April 2017, we directed the Chief Officer

of Respondent No.1-Municipal Council to remain present before the

Court today. Accordingly, the Chief Officer of Respondent No.1-

Municipal Council is present before the Court today.

5. Today, the learned counsel for Respondent No.1-Municipal

Council has tendered affidavit-in-reply of Mr. Vijaykumar Chandrakant

Dwase, the Chief Officer of Respondent No.1-Municipal Council, who is

present in Court. The said affidavit-in-reply is taken on record. In

paragraph Nos.6 and 7 of the said affidavit, the Deponent states as

under :-

"6. I say that during the pendency of this Petition, Respondent No.1 has, in fact, submitted fresh proposal to the Coordinating Officer, Land Acquisition, through Collector's Office, Sindhudurg, as per provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation & Resettlement Act, 2013. I say that Respondent No.1 has also approached the said office for necessary funds required for acquisition of the said land.

7. I say that Respondent No.1 has also deposited 50% of Award amount of Rs.62,06,000/- to the Land Acquisition Officer, Sawantwadi, for the acquisition of 4 of 9 WP-10259-13.doc

land for the said Ring Road."

6. Mr. Railkar, learned counsel appearing for Respondent No.1-

Municipal Council, on instructions, submits that earlier, inadvertently,

Respondent No.1-Municipal Council could not file reply. Learned

counsel further submits, on instructions, that Respondent No.1-

Municipal Council has now decided to take necessary steps under the

new Land Acquisition Act, namely, 'The Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and Resettlement

Act, 2013', for acquiring the land bearing Survey No.55, Hissa No.9

and Survey No.24A, Hissa No.1/7, which is described as C.T.S.

No.4480 and 4479 in the City Survey Record, situate at Sawantwadi,

Dist. Sindhudurg.

7. We do not express any opinion on the statement made by

learned counsel for Respondent No.1-Municipal Council that, the

Municipal Council is now taking steps under the new Land Acquisition

Act i.e. 'The Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013'. The fact

remains that, till date, Notification under Section 6 of the Land

Acquisition Act, 1894, has not been issued by Respondent No.1-

Municipal Council.

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8. Mr. Keluskar, learned counsel appearing for the Petitioners,

places reliance on the Judgment of a Division Bench of this Court

[Coram : A.M. Khanwilkar & N.M. Jamdar, JJ.], in Writ Petition

No.3954 of 2006, along with connected matters; copy of which is

annexed as Exhibit-H to the Petition.

9. We may refer to the following judgments delivered by the Apex

court on this issue :

(a) Praful C. Dave and ors. vs. Municipal Commissioner and ors. [(2015) 11 SCC 90].

(b) Godrej & Boyce Manufacturing Co. Ltd. vs. State of Maharashtra & ors. [2015 (2) Bom. C. R. 354].

(c) Girnar Traders vs. State of Maharashtra [(2007) 7 SCC 555].

10. We have perused the relevant provisions of the Maharashtra

Regional & Town Planning Act, 1966, (for short, "MRTP Act"), and Land

Acquisition Act,1894.

11. Section 127 of the MRTP Act provides for 'Lapsing of

Reservation'. In case the Planning Authority fails to take any steps,

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even after receipt of notice under Section 127 of the MRTP Act, on

expiry of the period stated under the provisions of Section 127 of the

MRTP Act, the reservation, allotment or designation of the land

automatically lapses and thereupon the land is deemed to be released

forthwith.

12. One of the important features of the claim would be that the

Petitioners shall issue a valid purchase notice under Section 127 of the

MRTP Act. In case such a notice is issued and the same is received by

the Planning Authority, the time would start running thereupon from the

date of its service. In this case, there is no dispute that the notice under

Section 127 of the MRTP Act, issued by the Petitioners, was received

by Respondent No.1-Municipal Council. A resolution was passed by

Respondent No.1-Municipal Council in October, 2012, for acquisition of

the land. However, thereafter, it seems further steps were not taken in

accordance with law. The facts of the case show that the provisions

prior to amendment of Section 127 of the MRTP Act would be

applicable to this case. A period of one year was available to the

Planning Authority for taking necessary steps in accordance with law.

The Planning Authority failed to take such steps within the prescribed

time limit. As a consequence thereof, the land stands released from

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reservation and gets available to the Petitioners-land owners for

redevelopment.

13. The Parliament has passed an Act, namely, The Right to Fair

Compensation in Land Acquisition, Rehabilitation and Resettlement

Act, 2013 by repealing the old Act of 1894. Section 114 of the new Act

reads as under :-

"114. Repeal and saving.- (1) The Land Acquisition Act, 1894 (1 of 1894) is hereby repealed.

(2) Save as otherwise provided in this Act the repeal under sub-section (1) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeals."

14. In the given facts of the case, we pass following order :-

"O R D E R"

               (i)      The Petition is allowed.


               (ii)     It is declared that reservation made in respect of

Petitioners' land, bearing Survey No.55, Hissa

No.9 and Survey No.24A, Hissa No.1/7, which

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is described as C.T.S. No.4480 and 4479 in the

City Survey Record, situate at Sawantwadi,

Dist. Sindhudurg, for construction of 24.0 meter

wide Ring Road under the Development Plan of

Sawantwadi City, stands lapsed.

(iii) The subject land is now available to the

Petitioners for appropriate development in

accordance with law.

(iv) We direct the State Government to issue

appropriate Notification to that effect, in

accordance with the provisions of Section 127

of the MRTP Act, within a period of six months.

15. Rule is made absolute in the above terms. No costs.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [NARESH H. PATIL, J.]

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