Bombay High Court
Laxman Rakmaji Wankar vs The State Of Maharashtra & Ors on 8 June, 2017
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.5790 OF 2003
Laxman Rakmaji Wankar. .. Petitioner
Vs
The State of Maharashtra and Others. .. Respondents
-
Shri Surel S. Shah for the Petitioner.
Shri Manish M. Pabale, AGP for the Respondent Nos.1 and 2.
-
CORAM : A.S. OKA &
SMT. VIBHA KANKANWADI, JJ
DATED : 8TH JUNE 2017
ORAL JUDGMENT ( PER A.S. OKA, J)
1. Called out for final hearing. The property subject matter of
this Petition has been described in Paragraph 3 of the Petition. The said
property was reserved in the Development Plan sanctioned under
Section 31 of the Maharashtra Regional and Town Planning Act, 1966
( for short "MRTP Act") for the purposes of fire station, cultural centre,
stadium and swimming pool. According to the case of the Petitioner,
which is not disputed in the affidavit-in-reply filed by the second
Respondent, at the relevant time, the second Respondent was a Special
Planning Authority in accordance with Section 40 of the MRTP Act. As
no steps were taken for acquisition of the said land, a notice dated 11th
September 2001 under Section 127 of the MRTP Act was issued by the
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Petitioner to the second and third Respondents and to several others
including the Government of Maharashtra. By a letter dated 7th/12th
February 2002 (Exhibit-B to the Petition), the State Government
informed the Chief Executive Officer of the second Respondent- the
Maharashtra Housing and Area Development Authority that within a
period of six months from issuance of notice dated 11th September
2011, the second Respondent will have to take necessary steps and if
steps are not taken within the stipulated time, reservation would lapse
in accordance with Section 127 of the MRTP Act. An Application was
made on 13th June 2008 (Exhibit-C to the Petition) by the Petitioner to
the third Respondent Solapur Municipal Corporation for grant of
development permission on the ground that the reservation has lapsed
in accordance with Section 127 of the MRTP Act. The third Respondent
responded by a letter dated 18th August 2008 by informing the
Petitioner that the land has been reserved in the sanctioned
Development Plan vide Reservation No.19 for fire station.
2. By this Petition under Article 226 of the Constitution of
India, the first prayer is for directing the Respondents to dereserve the
land in question and permit the Petitioner and other co-owners to use
the same for development. The second prayer is for challenging the
communication dated 18th August 2008 issued by the third Respondent
Solapur Municipal Corporation rejecting the proposal submitted by the
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Petitioner for grant of sanction to the lay out in respect of the said
property.
3. The second Respondent has filed a reply of Shri Sidhaling
Gangadhar Madihalli, the Sectional Engineer of Pune Housing Area
Development Board, Pune. In Paragraph 2 of the said reply, reliance is
placed on the Resolution passed by the second Respondent by which it
was resolved not to acquire any land under reservation. In Paragraph 3
of the reply, it is stated that with effect from 24th November 2005, the
State Government has denotified the second Respondent as the Special
Planning Authority and now the third Respondent Solapur Municipal
Corporation shall be the Planning Authority for the said area.
4. There a reply filed by the third Respondent of Shri
Shantaram Manohar Awatade, the Assistant Engineer in the Town
Planning Department of the third Respondent- Solapur Municipal
Corporation. In the said reply, which is affirmed on 21st July 2004, it is
stated that the process of handing over the said area to the Municipal
Corporation has commenced. As stated earlier, the second Respondent
ceased to be the Planning Authority for the said area with effect from
24th November 2005 and with effect from that date, the third
Respondent became the Planning Authority.
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5. It is not the case made out by the Respondents that within
the period stipulated in Section 127 of the MRTP Act, a declaration
either under Sub-section (2) or Sub-section (4) of Section 126 of the
MRTP Act was issued.
6. As no such declaration has been issued, the law laid down
by the Apex Court in the case of Shrirampur Municipal Council v.
Statyabhamabai Bhimaji Dawkher1 will squarely apply to the facts of
the present case. Therefore, the reservation shall be deemed to have
lapsed. Hence, the Application for sanction of lay out and for grant of
development permission which may be made by the Petitioner and his
co-owners will have to be considered by the third Respondent in view of
lapsing of reservation. Accordingly, the Petition must succeed and we
pass the following order.
ORDER :
(a) We declare that the reservation imposed on the land
as described in Paragraph 3 of the Petition in the
sanctioned Development Plan vide Reservation
No.19 shall be deemed to have been lapsed;
1 (2013)5 SCC 627
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(b) We declare that the said land shall be deemed to be
released from such reservation and shall become
available to the owners thereof for the purposes of
development as otherwise permissible in case of
adjacent land under the relevant sanctioned
Development Plan;
(c) It will be open for the Petitioner and his co-owners
to make a fresh Application for grant of sanction of
lay out and/or for grant of development permission
to the third Respondent-Solapur Municipal
Corporation;
(d) If such Application is made, the same shall be
decided afresh and in the light of this judgment and
without being influenced by the communication
dated 18th August 2008 which is impugned in this
Petition;
(e) Rule is made absolute on above terms with no orders
as to costs.
(VIBHA KANKANWADI, J) ( A.S. OKA, J )
