Gulam Alamgir Gulam Mohammad And ... vs The State Of Maharashtra
2017 Latest Caselaw 9252 Bom

                                    (1)                           wp 9637.17

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                       WRIT PETITION NO. 9637 OF 2017


1.    Gulam Alamgir Gulam Mohammad
      Age: 57 years, Occ. Business & Social Work,
      R/o. Majrat Nagar, Jalna Road, Beed.
      Tq. & Dist. Beed.
      ([email protected])

2.    Vijayraj s/o Hemraj Bumb
      Age: 55 years, Occ: Business,
      R/o Majrat Nagar, Jalna Road, Beed,
      Tq. & Dist. Beed.

3.    Mrs. Nirmala w/o Vijayraj Bumb
      Age: 50 years, Occ: Household/Nil,
      R/o Majrat Nagar, Jalna Road, Beed,
      Tq. & Dist. Beed.

4.    Gautam s/o Champalal Dungwal
      Age: 50 years, Occ: Business,
      R/o Old Mondha, Jalna Road, Beed,
      Tq. & Dist. Beed.                               ...      Petitioners

                       Versus

1.    The State of Maharashtra
      through its Secretary,
      Department of Urban Development,
      Mantralaya, Mumbai.
      (Email- [email protected])

2.    The Town Planner,
      Town Planning & Valuation Office,
      Beed Branch, Tq. & Dist. Beed.
      (Email- [email protected])




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3.    The Municipal Council.
      Beed, Tq. & Dist. Beed.
      (Email- [email protected])                                 ...      Respondents

                                     -----
Mr. B.L. Sagar Killarikar, Advocate for the Petitioners.
Mr. G.K. Thigle, Advocate for Respondent No.3.
Mrs. P.V. Diggikar, A.P.P. for the Respondent/State.
                                     -----

                                       CORAM :     S.S. SHINDE &
                                                   MANGESH S. PATIL, JJ.

DATE OF RESERVING THE JUDGMENT : 14.11.2017 DATE OF PRONOUNCING THE JUDGMENT : 04.12.2017 ...

JUDGMENT: (Per Mangesh S. Patil, J.)

. Rule. Rule is made returnable forthwith. With the consent of

the parties matter is heard finally.

2. This is a petition under Article 226 of the Constitution of India

with following prayers in clause B to D:

"B. To Quash and set aside the impugned Letter dated 13 th

November 2006, issued by respondent No.1-State of

Maharashtra, through its Principle Secretary, Department of

Urban Development, Mantralaya, Mumbai (EXH."I") and all

consequential actions;

                                                  (3)                             wp 9637.17

               C.       To hold and declare that 'Reservation' as against Land

'Owned by Petitioners', from Sy. No. K-199, marked/reserved

as Reservation No.78 (Garden) has lapsed, in view of passing

of resolutions No. 125 of 2002 as well as Report-cum-

Communication Dated 14th March 2006 (EXH. "L" vis-a-vis

provisions of Sub-section (7) of Section 49 of the Maharashtra

Regional & Town Planning Act, 1966.

D. To direct the respondent No.3-Municipal Council, Beed

to grant necessary permission to develop 'Open space'/'Land',

owned and possessed by petitioners, by approving the Lay

Outs/granting permissions;"

3. According to the petitioners, they are the owners in

possession of agricultural land bearing survey no. Khod-199 of Beed

town, District Beed. In a development plan of Beed town the land was

demarcated as reservation no. 78, reserved for garden in the

development plan prepared and modified by the office of Town Planning,

Beed and duly published in the Government gazette of the State of

Maharashtra dated 29.01.1988. However, since after finalization of the

development plan no steps were ever taken by the respondent no.3-

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Municipal Council to initiate acquisition proceeding of the land.                On the

other hand, the petitioners were unable to develop the land in view of

such reservation. Therefore, they served a purchase notice under the

provisions of Section 49 of the Maharashtra Regional Town Planning Act,

1966 (hereinafter referred to as the MRTP Act) on 27.06.2002. After

calling necessary reports and holding inquiries the Director of Town

Planning, Maharashtra State, Pune confirmed the purchase notice. It was

incumbent on the part of respondent no.3-Municipal Council to have

acquired the land within one year from the date of purchase notice.

However, it failed to take steps towards the acquisition of the land and by

virtue of operation of provisions of Section 49 the reservation and

restriction on the development of the land has lapsed.

4. It is further averred in the petition that when the Director of

Town Planning confirmed the purchase notice, the Chief Officer of the

respondent no.3-Municipal Council forwarded a proposal to the State

Government requesting to initiate acquisition proceedings in respect of

the petitioners land. However, budgetary provision was never made by

the Municipal Council and was never approved by the general body of the

Municipal Council. Therefore, the Chief Officer having no power to incur

liability, the steps taken by him were illegal. It is then alleged that only

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with a view to keep the reservation intact and deprive the petitioners

from their property, without making any budgetary provision a proposal

was submitted to the Collector, Beed by the Municipal Council for

initiating acquisition proceedings. However the Collector directed the

Municipal Council to deposit an amount of Rupees Two Crore Eight Lakhs

being 2/3rd of the cost of proposed acquisition. When a proposal for

compliance was placed before the general body of the respondent no.3-

Municipal Council, a resolution was passed bearing no. 185 of 2003 on

03.02.2003 expressing its inability to acquire the land of the petitioners.

Accordingly, the respondent no.3-Municipal Council by letter dated

10.04.2003 informed the Collector, Beed about such inability and the

Collector in turn returned the proposal for acquisition of the land. Thus,

since 30.04.2003 not even a proposal is pending with the office of the

Collector, Beed for acquisition of the petition land. The petitioners have

then averred that in spite of such state of affairs, the respondent no.3-

Municipal Council started reconsidering the proposal for acquisition of the

petition land and resolved to solicit loans from the banks to acquire the

land. However, the banks refused to lend money. The petitioners, then,

jointly submitted a representation dated 14.03.2006 seeking permission

to develop the land, however, the State Government informed the

Municipal Council that the reservation had not lapsed and was still in

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existence and suggested the respondent no.3-Municipal Council to

acquire the land by private negotiations. Thus, the respondents are bent

upon to deprive the petitioners of their right to hold the petition land and

to develop it in spite of reservation having been lapsed under Section 49

(7) of the MRTP Act.

5. It is then lastly averred by the petitioners that in spite of

such happenings since there was civil dispute between the petitioners

inter se from the year 2007 to 2015 in the form of RCS No. 120 of 2015

for partition and separate possession. The suit was disposed of in terms

of compromise on 02.04.2016 as per the decree (Exhibit-K). It is

thereafter that the petitioners names were recorded in the revenue

record. They then deposited betterment charges seeking permission to

develop the property. Necessary proposal which was complete in itself

along with requisite maps, drawings have been submitted as

contemplated under Section 44 of the MRTP Act. However, since filing of

such proposal on 02.05.2016 the petitioners were not communicated

anything and by virtue of deeming a provision contained in Sub-section 5

of Section 45 of the MRTP Act they are entitled to assume that

permission has been deemed to have been granted. When the petitioners

submitted a representation dated 12.06.2017 to the respondent no.3-

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Municipal Council they were informed that they will not be allowed to

develop their petition land.

6. It is necessary to note at this stage that the petitioners have

also filed additional affidavit stating that as was apprehended by the

petitioners, the respondent no.3-Municipal Council has published a

notification dated 12.09.2017 in the Government gazette dated

21.09.2017 under title 'Development Plan of Beed (II Revise +AA)

Municipal Council', pursuant to Section 26(1) of the MRTP Act, 1966. The

Municipal Council is intending to revise the development plan with

additional area and has issued a formal order on 09.03.2015 with prior

approval of the Joint Director, Town Planning, Aurangabad Division,

Aurangabad. By publishing such revised plan the Municipal Council has

also invited suggestions and objections from general public within thirty

days from the date of publication of notification. As per the draft

development plan the respondent no.3-Municipal Council is intending to

revise the reservation on the petition land, as reservation no. 60 for

'Recreational Activities and Open Space' in the Draft Development Plan of

Beed (IInd R+AA) and it also includes part plan showing petition land

and surrounding areas.

7. The Chief Officer of the respondent no.3-Municipal Council,

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Beed by name Dhananjay Dattatray Jawalikar has filed affidavit in reply

on behalf of respondent no.3-Municipal Council. He has not disputed the

facts mentioned in the petition. He has admitted about the petition land

having been reserved as site no.78 in the sanctioned development plan

of the Beed and that a purchase notice dated 27.06.2002 under Section

49 of the MRTP Act was served by the owners, who were petitioners'

predecessors. He has admitted that the purchase notice was duly

confirmed. He has admitted that the respondent no.3-Municipal Council

did not initiate land acquisition proceedings within a period of one year

of confirmation of the notice on 02.10.2002. He has then admitted that

the land acquisition proposal was moved on 03.12.2002 but the general

body of the Municipal Council resolved that it was unable to deposit the

amount demanded by the Land Acquisition Officer for the proposed

acquisition and therefore the proposal was returned. He has then

admitted that an attempt was made to approach the bank for grant of

financial assistance but they refused to accommodate. He has lastly

stated that since the petition land is already a part of the revised

development plan and by efflux of time the petition has become

infructuous. However, the process of preparation of revised development

plan is in process and the petition thus becomes premature and deserves

to be dismissed.

(9) wp 9637.17

8. We have heard the learned Advocate for the petitioners and

the learned Advocate for the respondent no.3, we have also heard the

learned A.G.P.

9. At the outset, it is necessary to note that, almost all the facts

mentioned herein-above stand admitted to both the sides. Therefore,

there is no much of a dispute remains on facts. There is no dispute that

the petitioners' land was reserved as site no. 78 for garden in the earlier

development plan of Beed town. There is no dispute that since no steps

were taken for acquisition of land, by invoking the provisions of Sub-

section 7 of Section 49 of the MRTP Act, the petitioners served a

purchase notice. It was duly confirmed by the State Government and in

spite of some hiccups, no steps were taken under Section 126 of the

MRTP Act for acquisition of the land and consequently by the statutory

provision contained in Sub-section 7 of Section 49 the reservations stood

lapsed. Suffice for the purpose to refer to provision of Section 49 which

reads thus:

"49. Obligation to acquire land or refusal of permission or on grant of permission in certain cases.- (1) Where-

            (a)    any land is designated by a plan as subject to compulsory
            acquisition; or





                                        ( 10 )                            wp 9637.17



       (b)    any land is allotted by a plan for the purpose of any

functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body; or

(c) any land is indicated in any plan as land on which a highway is proposed to be constructed or included; or

1[(d) any land for the development of which permission is refused or is granted subject to conditions; and any owner of land referred to in clause (a), (b), (c) or (d) claims-

(i) that the land has become incapable of reasonably beneficial use in its existing state; or

(ii) where planning permission is given subject to conditions that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or]

(e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated, the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as "the purchase notice") requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act.

(2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that authority and of the State Government, if any in respect of which the notice is given.

                (3)     On receipt of a purchase notice, the State




                                             ( 11 )                          wp 9637.17

Government shall forthwith call from the Planning Authority and the appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition.

(4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub- section (1) are fulfilled, and that the order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard.

(5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period.

(6) [* * * * *]

(7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan.]"

10. Thus, in fact there remains no dispute about the fact that the

( 12 ) wp 9637.17

reservation on the petition land in the development plan of the year 2002

stood lapsed by the operation of statute. In the normal course this

should have been the end of the matter as far as the right of the

petitioners to develop the petition land was concerned. Even the learned

Advocate for the respondent no.3-Municipal Council fairly conceded such

result.

11. However, much water seems to have flown under the bridge

by the passage of time and by the time the petitioners woke up to

enforce their right to the petition land. It is a common ground now that

there has been a subsequent development, wherein, again the

respondent no.3-Municipal Council has submitted revised development

plan and has invited objections and suggestions from the public. More

importantly now the same petition land has again been proposed to be

reserved for 'Recreational Activities and Open Space'. In view of such

state of affairs the learned Advocate for the respondent no.3-Municipal

Council, submitted that the petition as it stands and the reliefs claimed

have become infructuous and the only remedy now that would be

available to the petitioners is to raise an objection to the proposed

reservation or wait for the respondent no.3-Municipal Council to exercise

its rights to acquire the petition land in pursuance of the revised

( 13 ) wp 9637.17

development plan. The learned Advocate also submitted that the

petitioners now cannot blame the respondent no.3-Municipal Council for

such state of affairs and they should blame themselves for not promptly

taking steps to seek development of the petition land, when the earlier

reservation had lapsed by operation of statute. There are absolutely no

grounds to show that the proposed reservation in the revised

development plan is prompted by any ulterior motive or mala fides.

12. The submission of the learned Advocate for the respondent

no.3-Municipal Council may seem attractive at the first blush. However,

it is necessary to note that the right which has accrued to the petitioners

by virtue of lapse of reservation is a right which is conferred by the

statute in view of the provisions of Section 49 of the MRTP Act. Not only

that but in pursuance of such lapse they have also submitted a proposal

for development of the land by depositing the development charges.

Therefore, once such a right is vested in the petitioners by operation of

law, the subsequent event of modification of the plan thereby once again

including the self same petition land in the reservation would be

unjustified and illegal.

13. In the case of Godrej and Boyce Manufacturing Company

Limited V/s. State of Maharashtra; (2015) 11 SCC 554, while

( 14 ) wp 9637.17

considering a similar provision regarding lapse of reservation under

Section 127 of the MRTP Act, the subsequent proposal for modification in

the development plan was held to be impermissible. In that case the

land which was reserved in the earlier development plan for railway line

had lapsed by virtue of Section 127 of the MRTP Act. However, the State

government then modified such reservation of land for road. It was held

that the State government was not empowered to make such a

modification since the land owners had acquired a valuable statutory

right and the initial purpose for reservation had lapsed. Following

observations have been made in paragraph 20:

20. ...Therefore, we have to hold that the impugned notification is bad in law and liable to be quashed. The High Court has not examined the impugned notification from the viewpoint of Section 127 of the MRTP Act and interpretation of the abovesaid provision made in Girnar Traders (2), therefore, giving liberty to the appellant by the High Court to file objections to the proposed notification is a futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved for has not been utilised for that purpose and a valid statutory right is acquired by the landowner/interested person after expiry of 10 years from the date of reservation made in the development plan and 6 months' notice period has also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Sections 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefit of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the development plan from deleting for the purpose of

( 15 ) wp 9637.17

the Railways and adding to the development plan for the formation of development plan of road after lapse of 10 years and expiry of 6 months' notice served upon the State Government."

14. With respect, applying the same analogy to the facts in the

matter in hand, we hold that the submission of the learned Advocate for

the respondent no.3-Municipal Council banking upon such

modification/revision of the development plan is not sustainable in law.

15. In the result, the petition succeeds and deserves to be

allowed.

16. The petition is allowed. The rule is made absolute in terms of

prayer clause 'B', 'C' and 'D'.

17. Needles to state that by virtue of sub-section 7 of Section 49

of the MRTP Act, the petition land will be available to the petitioners for

the purpose of development which is otherwise permissible in the case of

adjacent land in the relevant plan.

      [MANGESH S. PATIL, J.]                                 [S.S. SHINDE, J.]



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