Bombay High Court
Deochand S/O Ramkisan Masani And ... vs State Of Maharashtra Through ... on 7 July, 2017
Bench: V.A. Naik
0607WP1774.13-Judgment 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 1774 OF 2013
PETITIONERS :- 1. Deochand s/o Ramkisan Masani, Aged about
81 years,
2. Ghanshyam s/o Ramkisan Masani, Aged
about 79 years,
3. Bhagwat s/o Radhakisan Masani (Dead)
(3a) Chandrarekha Wd/o Bhagwat Masani, aged
about 56 yeas, Occ.- Housewife,
(3b) Anuj S/o Bhagwat Masani, aged about 37
yeas, Occ.- Business,
(3c) Akhilesh S/o Bhagwat Masani, aged about
35 yeas, Occ.- Business,
(3d) Parmanand S/o Bhagwat Masani, aged about
33 yeas, Occ.- Service,
All R/o of Gorelal Chowk, Sarafa Lane, Main
Road, Gondia, Tah. and Dist. Gondia.
4. Mahesh S/o Chaturbhuj Masani, aged about
54 years,
5. Chaitanya S/o Chaturbhuj Masani, aged
about 52 years,
6. Sudhir S/o Chaturbhuj Masani, aged about
49 years,
All residents of Gorelal Chowk, Sarafa Lane,
Gondia.
...VERSUS...
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RESPONDENTS :- 1. State of Maharashtra, through its Secretary,
Urban Development Department,
Mantralaya, Mumbai-32.
2. Municipal Council, Gondia through its Chief
Officer.
3. The Deputy Director of Town Planning and
appointed officer for Draft Development
Plan for the town of Gondia, Nagpur
Division, Nagpur.
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Mr.R.M.Vaidya, counsel h/f Mr.Anand Parchure,
counsel for the petitioners.
Mrs.Mrunal Naik, Asstt.Govt.Pleader for the respondent Nos.1 & 3.
None for the respondent No.2.
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CORAM : SMT. VASANTI A NAIK &
ARUN D. UPADHYE
, JJ.
DATED : 06.07.2017
O R A L J U D G M E N T (Per Smt.Vasanti A Naik, J.)
By this writ petition, the petitioners challenge the
notifications dated 04/04/2012 and 09/04/2012 reserving the land of
the petitioners bearing site No.136 for a primary school.
2. The petitioners claim to be the joint owners of the land at
Gondia which was reserved for a primary school as per the final
development plan published on 24/07/1980. In the year 1992 the final
development plan was modified but still the land was shown to have
0607WP1774.13-Judgment 3/6
been reserved for primary school. In 1996, steps were initiated by the
respondents for acquiring the land of the petitioners and an award was
also passed by the Land Acquisition Officer in the year 2000. The
municipal council, the acquiring body for which the reservation was
made, failed to deposit the amount. According to the petitioners, the
municipal council opined in the year 2003 that the land of the
petitioners could be de-reserved. It is stated that thereafter, in the year
2012, the final development plan for Gondia was again modified but
the land of the petitioners was still reserved for primary school The
petitioners have challenged the notifications reserving the land of the
petitioners for primary school
3. Shri Vaidya, the learned counsel holding for Shri Parchure,
the learned counsel for the petitioners, submits that the action on the
part of the respondents in not de-reserving the land of the petitioners is
mala fide. It is submitted that though steps were taken by the
respondents for the acquisition of the land of the petitioners, the
respondents did not pay the compensation to the petitioners and the
land of the petitioners remained under reservation. It is submitted that
no steps have been taken by the municipal council during the last
several years for the acquisition of the land. It is submitted that though
some steps were taken by the respondents for the acquisition of the
0607WP1774.13-Judgment 4/6
land in the year 1990s, the compensation for the land was not paid to
the petitioners. It is submitted that the respondents could not have
again reserved the land of the petitioners for a primary school by the
final development plan of the year 2012. The learned counsel for the
petitioners relied on the decisions reported in 2005 (4) Mh.L.J. 466
(Kishor Gopalrao v. State of Mah.) and 2007 (3) Mh.L.J. 399
(Kishor v. Director of Town Planning) to substantiate his submission.
4. Mrs. Naik, the learned Assistant Government Pleader
appearing for the respondent Nos.1 and 3, submitted that though the
land of the petitioners was not acquired by the authorities within ten
years from the date of publication of the final development plan on two
occasions, the petitioners did not take any steps under the provisions of
section 127 of the Maharashtra Regional and Town Planning Act. It is
submitted that had the petitioners served the notice on the respondents
under section 127 of the Act, it would have been incumbent on the
respondents to take effective steps for the acquisition of the land within
the time stipulated. It is submitted that the petitioners have slept over
the matter and had not issued any notice to the respondents under
section 127 or section 49 of the Act. It is stated that in the year 1987 a
notice was issued by the petitioners under section 49 of the Act but the
petitioners did not pursue the mater in pursuance of the notice and did
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not seek a declaration that the land of the petitioners would be free
from reservation in view of the provisions of section 49 of the Act.
5. On hearing the learned counsel for the parties and on a
perusal of the petition and the documents annexed thereto, it appears
that the relief sought by the petitioners cannot be granted. The land of
the petitioners was reserved for primary school in the final development
plan dated 24/07/1980. If the respondents had not taken any steps for
the acquisition of the land within ten years from the date of issuance of
the final development plan, it was necessary for the petitioners to have
issued notice to the respondents under section 127 or section 49 of the
Act. However, no such notice was issued by the petitioners to the
respondents. It appears that some proceedings were taken by the
respondents for the acquisition of the land but ultimately, the lands of
the petitioners were not acquired as the municipal council did not pay
the amount that was liable to be paid to the petitioners towards
compensation. At that juncture also, the petitioners could have issued a
notice to the respondents under the relevant provisions of the Act so as
to seek the lapsing of reservation. The petitioners however did not do
anything in the matter for several years till they filed this petition in the
year 2013 only after a modified final development plan came into force
in the year 2012. The petitioners ought to have taken appropriate steps
0607WP1774.13-Judgment 6/6
for seeking the lapsing of the reservation at an earlier point of time
when a remedy was available to the petitioners in that regard. As
rightly submitted on behalf of the respondents, the final development
plan cannot be set aside in so far as the land of the petitioners is
concerned as the petitioners did not take steps that could have been
taken under the provisions of the Act for an appropriate declaration.
The judgments reported in 2005 (4) Mh.L.J. 466 and 2007 (3)
Mh.L.J. 399 and relied on by the learned counsel for the petitioners
have no application to the facts of this case. In the reported judgments,
the land holders had issued a notice under section 127 of the Act and in
that background, the relief was granted by this court. In the instant
case, no notice was ever served by the petitioners on the respondents
under section 127 of the Act and though a notice was served under
section 49 of the Act in the year 1987, the petitioners did not take the
proceedings initiated in pursuance of that notice to a logical end.
Since the relief sought by the petitioners cannot be granted,
the writ petition is dismissed with no order as to costs.
JUDGE JUDGE
KHUNTE
