Kishanrao Nanasaheb Deshmukh vs The State Of Maharashtra And ...
2017 Latest Caselaw 145 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                        WRIT PETITION NO. 2292 OF 2016


Kishanrao s/o Nanasaheb Deshmukh,
Age : 82 years, Occu. Agri.,
R/o Ahmedpur, Tq. Ahmedpur,
District Latur                                                       PETITIONER

                VERSUS

1.     The State of Maharashtra,
       through Secretary,
       Urban Development Department,
       Mantralaya, Mumbai

2.     The Collector,
       Collectorate Latur

3.     The Commissioner,
       Latur Municipal Corporation,
       Latur

4.     Town Planning Officer,
       Latur Municipal Corporation,
       Latur                                                         RESPONDENTS

                          ----
Mr. Suhas B. Ghute, Advocate for the Petitioner
Mr. A.S. Shinde, A.G.P. for respondent Nos. 1 and 2 
Mr. Umakant Wagh, Advocate holding for Mr. A.V. Hon, 
Advocate for respondent No. 3
                          ----

                                    CORAM :   T.V. NALAWADE AND
                                              SANGITRAO S. PATIL, JJ.

                JUDGMENT RESERVED ON          :    22nd FEBRUARY, 2017

                JUDGMENT PRONOUNCED ON :           28th FEBRUARY, 2017




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JUDGMENT (PER : SANGITRAO S. PATIL, J.) :

Rule, returnable forthwith. With the consent

of the learned counsel for the contesting parties, heard

finally.

2. Admittedly, the land admeasuring 1 Hectare 65

Ares, out of Survey No. 4, situate within the municipal

limits of Latur was reserved for playground and school

in the development plan of Latur city, notified by the

Urban Development Department of respondent No. 1 on 2 nd

January, 2002. It is further admitted that the

respondents did not acquire the said land by agreement

within a period of ten years from the date on which the

said development plan was notified. Therefore, the

petitioner served respondent No. 2 - Collector and

respondent No. 3 - Latur Municipal Corporation with the

notice dated 18th June, 2013 under section 127 of the

Maharashtra Regional and Town Planning Act, 1966 ("the

Act", for short), calling upon them to take necessary

steps for acquisition of the said land within a period

of six months from the date of service of the said

notice with a caution that in case no such steps are

taken, the reservation shall be deemed to have been

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lapsed and the said land would be deemed to have been

released from such reservation.

3. The learned counsel for the petitioner submits

that though respondent Nos. 3 and 4 accepted the above

referred factual position as well as the receipt of the

notice under section 127 of the Act, no steps were taken

by them to acquire the land of the petitioner.

Therefore, according to him, reservation in respect of

the land of the petitioner would be deemed to have been

lapsed, the said land would be deemed to have been

released from such reservation and it would be available

to the petitioner for the purpose of development or

otherwise. In support of this contention, he cited

judgment in the case of State of Maharashtra Vs. Bhakti

Vedanta Book Trust and others (2013) 4 S.C.C. 676 and

also some of the judgments of this Court on the same

lines.

4. As seen from the reply filed on behalf of

respondent Nos. 3 and 4, after receiving the notice from

the petitioner under section 127 of the Act, respondent

No. 3 initiated proceedings for acquisition and

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forwarded the proposal to the Government. However, the

acquisition could not take place as certain deficiencies

were pointed out in the said proposal. It is further

stated that the petitioner did not annex the relevant

documents i.e. measurement map with the notice under

section 127 of the Act and therefore, respondent No. 3

could not take steps for acquisition of the land of the

petitioner. It is, therefore, prayed that the petition

may be dismissed.

5. The learned counsel for the petitioner cited

judgment in the case of Dattatraya Shamacharya

Dharmadhikari and others Vs. The State of Maharashtra

and others (Writ Petition No. 4823 of 2014), decided by

this Court on 16th December, 2014 wherein the same ground

was taken by the respondent-authorities to nullify the

effect of notice under section 127 (1) of the Act. It

was held that section 127 (1) of the Act does not

require enclosure of the map of the land proposed to be

acquired alongwith the notice and therefore, insistence

upon the said map is unsustainable.

6. In view of the above mentioned admitted facts

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as well as the legal position clarified by the above

referred judgments, we are of the considered view that

since no steps were taken by respondent Nos. 2 and 3 for

acquisition of the land of the petitioner within six

months after receiving the notice under section 127 of

the Act, the reservation in respect of the land of the

petitioner shall be deemed to have been lapsed and the

said land shall be deemed to be released from such

reservation and shall become available to the petitioner

for the purpose of development or otherwise.

7. In the result, the Writ Petition is allowed.

Rule is made absolute in the above terms. The Writ

Petition is disposed of accordingly. No costs.

       [SANGITRAO S. PATIL]                      [T.V. NALAWADE]
              JUDGE                                    JUDGE

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