Bombay High Court
Kashinath Pundlik Patil vs The State Of Maharashtra And ... on 3 August, 2017
Bench: S.C. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.1229 OF 2017
Shri Kashinath S/o Pundlik Patil
Age : 85 years, Occup : Agril.'
R/o : Gholap Managalkaryalaya,
Chitali Road, Rahata, Tq. Rahata,
District Ahmednagar ..Petitioner
Versus
1]The State of Maharashtra,
Through the Secretary
Urban Development Department,
Mantralaya, Mumbai
2]The Director of Town Planning,
Maharashtra State, Pune
3]The Deputy Director of Town Planning,
Nashik division, Nashik
4]The Municipal Council, Rahata,
Through its Chief Executive Officer.
5]The Collector, Ahmednagar,
Ta. and District Ahmednagar. ..Respondents
[copies for respondents to be
served on Govt.Pleader High Court
Bench at Aurangabad.]
-----
::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:53:38 :::
2
WITH
WRIT PETITION NO.1256 OF 2017
Smt.Alka Wd/o Bapusaheb Sadaphal
Age : 50 years, Occup : Agril. & Household
R/o : Near Gholap Managalkaryalaya,
Chitali Road, Rahata, Tq. Rahata,
District Ahmednagar ..Petitioner
Versus
1]The State of Maharashtra,
Through the Secretary
Urban Development Department,
Mantralaya, Mumbai
2]The Director of Town Planning,
Maharashtra State, Pune
3]The Deputy Director of Town Planning,
Nashik division, Nashik
4]The Municipal Council, Rahata,
Through its Chief Executive Officer.
5]The Collector, Ahmednagar,
Ta. and District Ahmednagar. ..Respondents
[copies for respondents to be
served on Govt.Pleader High Court
Bench at Aurangabad.]
Mr.V.D. Sapkal, Advocate for petitioners.
Mr. D.R. Kale, AGP for Respondent Nos. 1 to 3 & 5.
Mr.A.V.Hon, Advocate for respondent No.4.
-----
::: Uploaded on - 08/08/2017 ::: Downloaded on - 09/08/2017 01:53:38 :::
3
CORAM : S.C. DHARMADHIKARI &
MANGESH S. PATIL, JJ.
RESERVED ON : 18/07/2017.
PRONOUNCED ON :03/08/2017.
JUDGMENT ( PER MANGESH S. PATIL,J.) :
Rule. Rule is made returnable forthwith. Heard finally
with the consent of parties.
2] A common question in these sister writ petitions that
arises for consideration is as to whether on the facts of these
cases can it be declared that the reservation imposed on the
petitioners' land has lapsed due to the failure of the Planning
Authority to take steps within the statutory period stipulated by
Section 127 of the Maharashtra Regional Town Planning Act,
1966 ( for short MRTP Act). The petitioners are seeking a writ
of mandamus under Article 226 of the Constitution of India with
following prayers.
"B] To hold and declare that reservation of
land admeasuring 09 Aar of petitioner in
respect of site No. 45, reserved for garden and
situated at Rahata, Ta. Rahata, District
Ahmednagar from final development plan
dated 16-08-2004 of Municipal Council,
Rahata, Ta. Rahata, District Ahmednagar, is
lapsed.
C] To direct respondents to issue
notification in respect of de-reservation as
contemplated under section 127 of the MRTP
Act by publishing it in Government Gazette
showing de-reservation of land admeasuring
09 Aar of petitioner from site No.45, reserved
for garden and residential zone from land
survey No. 179 situated at Rahata, Tq.
Rahata, District Ahmednagar from final
development plan dated 16-08-2004 of
Municipal Council, Rahata, Tq. Rahata,
District Ahmednagar by issuing appropriate
writ or direction or order in the nature of writ as
the case may be."
3] The petitioner in Writ Petition no. 1229 of 2017 is the
owner of a portion admeasuring 09 Are from the City Survey no.
179, whereas the petitioner in writ petition no. 1256 of 2017 is
the owner of a portion admeasuring 15 Are from the same city
survey number. The respondent no.4 Municipal Council
finalized a town development plan. It was duly approved and
notified in the official gazettee and came into force with effect
from 15.09.2004( Exhibit.B). In the approved development plan,
the City Survey no. 179 was reserved for garden as well as
residence as site no.45. However, it did not take any steps for
acquisition of land as contemplated under the provisions of
Sections 126 of the MRTP Act. The statutory period of 10 years
provided under Section 127 of the Land Acquisition Act expired
on 16.09.2014. The petitioners therefore issued a purchase
notice under that provision on 20.11.2014 (Exhibit.C).
Alongwith notice they forwarded the revenue record in the form
of 7/12 extracts, a copy of development plan and a copy of the
sale-deed under which they had acquired the title to their
respective portions/ plots. The notice was duly sent to the
respondent no.4 Municipal Council by registered post
acknowledgement due and it was duly received by it. As
certified by the post office (Exhibit-D) not only the Municipal
Commissioner of the respondent no.4 Municipal Council but the
Collector respondent no.5 received it on 21/11/2014. Since
there were some short falls, the respondent no.4 Municipal
Council demanded certain documents vide its communication
dated 05.12.2014 (Exhibit E) and the petitioners duly complied
with it, vide their response dated 10.12.2014 (Exhibit F). Again,
respondent no. 4 pointed out few more short falls by its
communication dated 04.02.2015(Exhibit G) and the petitioners
duly complied with it vide their reply dated 06.04.2015 (Exhibit
H).
4] According to the petitioners inspite of service of such
purchase notice as contemplated under section 127 of the
MRTP Act, respondent no. 4 Municipal Council, which is a
development authority, has not taken any steps for acquiring the
portions of the lands belonging to them and later by issuing
necessary notifications/ declaration under section 6 of the Land
Acquisition Act, 1894 or a similar provision contained in
Maharashtra Act No. XXIII of 2013. According to the petitioners
in view of such inaction on the part of the respondent no.4
Municipal Council and the State Government, by virtue of the
operation of the provision of section 127 of the MRTP Act, the
reservation on their respective lands stands lapsed. Hence
these petitions, claiming aforementioned reliefs.
5] One Junior Engineer of the respondent no. 4 Municipal
Council duly authorised by it has filed affidavit-in-reply (page 59
of the paper book) in both the petitions. He has admitted all the
facts mentioned herein above averred by the petitioners. He
has not disputed their title to their respective portions of the land
from survey no. 179. He has not disputed about the land having
been reserved in the development plan which came into effect
with effect from 15.09.2004. He has not disputed that 10 years
have lapsed after finalization of the development plan, and
therefore the petitioners had served a purchase notice dated
20.11.2014. For that matter he has also not disputed about the
subsequent correspondence between the petitioners and the
respondent no.4 Municipal Council, for compliance of some
documents in support of the purchase notices. According to him,
in fact after receipt of notice on 08.01.2015, the respondent no.
4 Municipal Council duly passed a Resolution (Exhibit R-1) for
acquiring and developing and thereby exploiting the reservation
of the petitioners' lands. The proposal was also forwarded to
the respondent no. 5 Collector on 05.02.2015, who in turn
appointed Sub-Divisional Officer, Shirdi as the Land Acquisition
Officer by his order dated 14.12.2015. Accordingly, the Land
Acquisition Officer directed the Deputy Superintendent of Land
Records for effecting a measurement of the petitioners land by a
communication (Exhibit R-2). However no measurement is
carried out promptly and the matter is still pending with the
T.I.L.R. Thus according to him the respondent no. 4 Municipal
Council has promptly taken steps for acquisition of the
petitioners land for development, therefore it cannot be said that
it has not taken steps for acquisition of the lands as
contemplated under sections 126 and 127 of the MRTP Act.
6] The Assistant Director of Town Planning Ahmedhagar has
also filed affidavit-in-reply on behalf of respondents no. 1 to 3,
who are the State Government and the Town Planning
Authorities (page 72). He has also admitted almost all the facts
mentioned hereinabove. However, according to him it was
wholly the responsibility of the respondent no. 4 Municipal
Council, which should have taken all the steps for using the
petitioners land for assigned purpose according to the
development plan and they have no role to play.
7] The learned Advocate for the petitioner Shri V.D.Sapkal, in
consonance with the averments in the petition strenuously
submitted that the law has been duly settled vis a vis the scope
and ambit of sections 126 and 127 of the MRTP Act, by virtue of
the decisions of the Supreme Court in the cases of (1) Girnar
Traders and Another Versus State of Maharashtra and
others (2007) 7 SCC 555; (2) Shrirampur Municipal Council
Versus Satyabhamabai Bhimaji Dawkher and others; 2013
(3) Bom.C.R.481 (Supreme Court). The learned Advocate also
referred to the recent judgments of the Division Benches of this
High Court in the case of (1) Vikramsinh Haysingrao Ghatge
Versus Municipal Council and others reported in 2014 (6)
Bom.C.R.842 and (2) Shrishail Parvati Sahakari
Grihanirman Sanstha Versus The State of Maharashtra and
Ors., reported in 2017 (4) All M.R.373.
8] Thus according to the learned Advocate, the acid test for
the declaration about the reservation having been lapsed under
section 127 or otherwise is issuance of a declaration under
Section 6 of the Land Acquisition Act, 1894, or now Section 19
of Maharashtra Act No. XXIII of 2013. Therefore when
admittedly the State Government has not issued any declaration
under that provision, the legal consequences should
automatically follow, and the petitioners are entitled to seek the
declaration about their respective lands having been de-
reserved.
9] Suffice for the purpose to refer to the decision in the case
of Girnar Traders (supra), the view wherein has been duly
endorsed by subsequent decision of the Supreme Court in the
case of Shrirampur Municipal Council (supra). As has been
rightly submitted by the learned Advocate for the petitioners,
the wordings of Sections 126 and 127 of the MRTP Act, clearly
lays down as to how the acquiring body i.e. development
authority is expected to take steps in the directions of
acquisition of the land, which are reserved in the development
plan. Instead of repeating the observations and the conclusions
in the aforesaid two Supreme Court judgments, it would be
sufficient to only refer to the principle laid down therein.
Paragraphs 57 to 61 of the judgment in Girnar Traders (supra)
read as under :
"57] It may also be noted that the legislature
while enacting Section 127 has deliberately
used the word "steps" ( in plural and not in
singular) which are required to be taken for
acquisition of the land. On construction of
Section 126 which provides for acquisition of
the land under the MRTP Act, it is apparent
that the steps for acquisition of the land would
be issuance of the declaration under Section 6
of the LA Act. Clause ( c ) of section 126 (1)
merely provides for a mode by which the State
Government can be requested for the
acquisition of the land under Section 6 of the
LA Act. The making of an application to the
State government for acquisition of the land
would not be a step for acquisition of the land
under reservation. Sub-section (2) of Section
126 leaves it open to the State Government
either to permit the acquisition or not to permit,
considering the public purpose for which the
acquisition is sought for by the authorities.
Thus, the steps towards acquisition would
really commence when the State Government
permits the acquisition and as a result thereof
publishes the declaration under Section 6 of
the LA Act.
58] The MRTP Act does not contain any
reference to Section 4 or Section 5-A of the LA
Act. The MRTP Act contains the provisions
relating to preparation of regional plan, the
development plan, plans for comprehensive
developments, town planning schemes and in
such plans and in the schemes, the land is
reserved for public purpose. The reservation of
land for a particular purpose under the MRTP
Act is done through a complex exercise which
begins with land use map, survey, population
studies and several other complex factors. The
process replaces the provisions of Section 4 of
the LA Act and the inquiry contemplated under
Section 5-A of the LA Act. These provisions are
purposely excluded for the purposes of
acquisition under the MRTP Act. The
acquisition commences with the publication of
declaration under Section 6 of the LA Act. The
publication of the declaration under sub-
sections (2) and (4) of the Section 126 read
with Section 6 of the LA Act is sine qua non for
the commencement of any proceedings for
acquisition under the MRTP Act. It is Section 6
declaration which would commence the
acquisition proceedings under the MRTP Act
and would culminate into passing of an award
as provided in sub-section (3) of Section 126 of
the MRTP Act. Thus, unless and until Section
6 declaration is issued, it can not be said that
the steps for acquisition are commenced.
59] There is another aspect of the matter. If
we read Section 126 of the MRTP Act and the
words used therein are given the verbatim
meaning, then the steps commenced for
acquisition of the land would not include
making of an application under Section 126 (1)
( c ) of the declaration which is to be made by
the State Government under sub-section (2) of
Section 126 of the MRTP Act.
60] On a conjoint reading of sub-sections (1)
(2) and (4) of Section 126, we notice that
Section 126 provides for different steps which
are to be taken by the authorities for acquisition
of the land in different eventualities and within a
particular time span. Steps taken for
acquisition of the land by the authorities under
Clause ( c ) of Section 126 (1) have to be
culminated into Section 6 declaration under the
LA Act for acquisition of the land in the Official
Gazette, within a period of one year under the
proviso to sub-section (2) of Section 126. If no
such declaration is made within the time
prescribed, no declaration under Section 6 of
the LA Act could be issued under the proviso to
sub-section 2 (2) and no further steps for
acquisition of the land could be taken in
pursuance of the application moved to the
State Government by the planning authority or
other authority.
61] Proviso to sub-section (2) of Section 126
prohibits publication of the declaration after the
expiry of one year from the date of publication
of draft regional plan, development plan or any
other plan or scheme. Thus, from the date of
publication of the draft regional plan, within one
year an application has to be moved under
Clause ( c ) of Section 126 (1) which should
culminate into a declaration under Section 6 of
the LA Act. As per the proviso to sub-section
(2) of Section 126 the maximum period
permitted between the publication of a draft
regional plan and declaration by the
Government in the Official Gazette under
Section 126 (2) is one year. In other words,
during one year of the publication of the draft
regional plan, two steps need to be completed,
namely, (i) application by the appropriate
authority to the State Government on receipt of
the application mentioned in Clause ( c ) of
Section 126 (1) on satisfaction of the conditions
specified under Section 126 (2). The only
exception to this provision has been given
under Section 126 (4).
If this is the position in law, when admittedly in the matter
before hand there has been no declaration by the State
Government in the form of issuance of a notification under
section 6 of the Land Acquisition Act, 1894, the only legal and
logical conclusion that should ensue is lapsing of the reservation
in dispute. We have therefore, no slightest of hesitation in
concluding that the reservation on the petitioners lands in the
final development plan approved for Rahata Municipal area
stood lapsed. The petitioners though had shown unnecessary
promptitude in filing a writ petition, initially, have duly waited for
the statutory period to lapse and have taken all the steps strictly
in accordance with the time line prescribed by the provisions,
while seeking the declaration regarding lapsing of the
reservation. To repeat, the development plan came into effect
on 15.09.2004. After lapse of 10 years, a purchase notice
under section 127 of the MRTP Act is issued on 20.11.2014 and
after lapse of a period of 24 months (which was earlier six
months) are now seeking a declaration. We therefore have no
reservation in accepting the submissions of the learned
Advocate for the petitioner and granting the reliefs as prayed
for. In doing so, we also record our concurrence with the view
taken by earlier two Division Benches of this Court (supra).
10] In the result, both the Writ Petitions succeed. Rule is
made absolute in terms of prayer clauses B and C.
( MANGESH S. PATIL,J.) (S.C. DHARMADHIKARI ,J.)
umg/
