Mangalbai Subhash Patil vs The State Of Maharashtra And ...
2017 Latest Caselaw 834 Bom

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                         WRIT PETITION NO. 9778 OF 2014


Smt. Mangalbai W/o Subhash Patil,
Age : 50 years, Occu.: Household,
R/o. Village Madkani, Tq. Shahada,
Dist. Nandurbar                                             PETITIONER 

        VERSUS

1.      The State of Maharashtra
        (Urban Development Division),

2.      The Collector, Nandurbar,
        at Nandurbar

3.      The Town Planning Officer Nandurbar,
        Dist. Nandurbar

4.      The Director of Town Planning,
        Maharashtra State, Pune,
        Central Building, Pune

5.      The Chief Executive Officer,
        Municipal Council, Shahada,
        Tq. Shahada, Dist. Nandurbar                        RESPONDENTS

                          ----
Mr. C.R. Deshpande, Advocate for the Petitioner
Mr. A.R. Borulkar, A.G.P. for the respondents/State
Mr. J.R. Shah, Advocate for respondent no.5
                          ----


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

                 JUDGMENT RESERVED ON   :          2nd MARCH, 2017
                 JUDGMENT PRONOUNCED ON  :         20th MARCH, 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 and

the learned A.G.P., heard finally.

2. The petitioner has sought a direction against

respondent Nos. 1 to 5 to release 26 R of land out of

survey No. 49/1 and 380.75 sq. mtrs. of land out of

Survey No. 49/2, situate at village Maloni, Taluka

Shahada from reservation no. 14 of Development Plan of

Shahada town so as to enable her to develop or dispose

of the same as per her own desire.

3. The learned counsel for the petitioner submits

that the above mentioned lands of the petitioner were

shown as reserved in the Development Plan of 2006 of

Shahada town for shopping centre and vegetable market.

However, no steps have been taken by the respondents for

acquisition of the said lands, even the period of more

than five years has been elapsed after reserving the

said lands. Due to the reservation of the lands of the

petitioner, it has become difficult for her to develop

those lands or dispose them off as per her own desire.

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She   is   suffering   from   loss.     Therefore,   she   issued   a

purchase notice dated 22nd May, 2012 vide section 49 of

the Maharashtra Regional and Town Planning Act, 1966

("the Act", for short). Respondent No. 4 - the Director

of Town Planning, Maharashtra State, Pune confirmed the

said notice as per the letter dated 20 th October, 2012

vide section 49 (4) of the Act. However, no final order

has been passed by respondent No. 1 within six months of

receiving the purchase notice. Moreover, an application

to acquire the lands of the petitioner has not been made

properly within one year from the date of confirmation

of purchase notice. Therefore, as per sub-section (7)

of section 49 of the Act, reservation in respect of the

lands of the petitioner would be deemed to have lapsed

and the said lands would be deemed to be released from

the reservation and would become available to the

petitioner for the purpose of development or otherwise.

He, therefore, submits that the directions as sought by

the petitioner may be given against the respondents.

4. The learned A.G.P., relying on the contents of

the reply filed on behalf of respondent Nos. 1, 3 and 4,

submits that after receiving the purchase notice and

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after its confirmation by respondent No. 4 under sub-

section (4) of section 49 of the Act, respondent No. 5

Municipal Council submitted the land acquisition

proposal to respondent No. 2 - the Collector, Nandurbar

on 4th May, 2013 i.e. within the stipulated period of one

year as mentioned in sub-section (7) of section 49 of

the Act. Therefore, the question of lapsing of the said

reservation would not arise.

5. The learned counsel for respondent No. 5 -

Municipal Council, Shahada, on the basis of the reply

filed on behalf of respondent No.5, submits that

respondent No. 2 sent back the proposal for acquisition

of the lands of the petitioner to respondent No. 5 on

22nd August, 2013 for compliance of certain documents.

However, for want of regularly appointed Chief Officer,

the proposal remained to be re-submitted to respondent

No.2. He submits that the proposal would be re-

submitted to respondent No. 2 since the reserved site is

necessary for planned development of Shahada town,

particularly for vegetable market and shopping centre.

He also submits that since the proposal for acquisition

of the lands of the petitioner was submitted within the

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stipulated period, the reservation would not get lapsed.

6. The learned counsel for the petitioner has

cited the judgments in the cases of M/s Girnar Traders

V. State of Maharashtra and others AIR 2007 SC 3180 and

Satyabhamabai w/o Bhimaji Dawkher Vs. State of

Maharashtra and others 2008 (2) Mh.L.J. 104, which

pertain to de-reservation of the land vide section 127

of the Act. Since the said judgments are not on the

point of lapsing of reservation under the provisions of

section 49 of the Act, they would not be applicable to

the facts of the present case.

7. The learned counsel for the petitioner further

cited the judgment in the case of Subhash s/o Ramrao

Jadhav and others Vs. State of Maharashtra and others

2012 (4) Mh.L.J. 236, wherein the same issue, which is

involved in the present petition, was under

consideration. In that case also, the effect of failure

on the part of the appropriate authority to make an

application as per the provisions of section 126 of the

Act to acquire the land in respect of which purchase

notice has been confirmed vide sub-section (4) of

section 49 of the act, was under consideration. Here, it

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would be necessary to reproduce paras 7 and 9 of the

said judgment, which read as follows :-

"7. It can thus be seen that Section 49 of the MRTP Act, is a complete code in itself. When a owner of the land claims that on account of designation of the land, he is unable to sell it, except at a lower price, he can serve a purchase notice on the State Government. A discretion is vested under Sub-section (4) of said Section, with the State Government to, either confirm the purchase notice, or direct the concerned authority for granting planning permission without condition or subject to such conditions as will make the land capable of reasonably beneficial use. The said sub section also provides that in case the State Government refuses to confirm the purchase notice, a reasonable opportunity of being heard will be given to the applicant. Sub- section (5) provides that in case the State Government fails to take any steps within six months from the date of service of purchase notice, the notice shall be deemed to have been confirmed at the expiry of that period, and sub-section (7) provides that in case the appropriate authority fails to make an application for acquiring the land as required under Section 126 of the MRTP Act within one year from the date of confirmation of the purchase notice, the reservation or allotment or restriction on the land shall be deemed to have lapsed and the owner will be entitled to develop his land as permissible in the case of adjacent land.

9. Indisputably, in the present case, though the purchase notice was confirmed on 28.12.2005. No doubt, that an application was made by the appropriate authority on 28.11.2006, so that it would be within a period of one year from the date of confirmation of the purchase notice. However,

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a perusal of the communication dated 22.2.2007 by the Collector, itself would reveal that the said proposal was not consistent with the statutory provisions. It can, thus, be seen that in the present case, the Appropriate Authority had even failed to make an application as per the provisions of Section 126 of the MRTP Act for acquiring the land within a period of one year from the date of confirmation of purchase notice, and as such, reservation stood lapsed on expiry of one year's period from the date of confirmation of the purchase notice, and therefore, the petitioners were free to develop their lands as was permissible in case of adjacent land. It is further to be noted that the Municipal Corporation itself has passed a resolution that if the proceedings were not initiated within one year from the date of confirmation of purchase notice, the land would be de- reserved.

8. In the present case also, though the

application/proposal for acquisition of the lands of the

petitioner was made by respondent No. 5 within the

stipulated period of one year, as seen from the reply

filed on behalf of respondent No.5, the said proposal

was incomplete, in the sense that some of the documents

were not annexed thereto. Such incomplete proposal/

application cannot be said to have been made as per the

provisions of section 126 of the Act. If that be so,

mere sending of an application/proposal, which is not

complete as required under section 126 of the act, would

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be of no help to respondent No. 5 to save the

reservation in respect of the lands of the petitioner.

In the circumstances, we hold that the reservation in

respect of the lands of the petitioner stood lapsed and

the said lands would be deemed to be released from the

reservation on expiry of the period of one year from the

date of confirmation of the purchase notice. The

petitioner would be free to develop her lands.

9. In view of the above facts and legal position,

the Writ Petition is allowed. Rule is made absolute in

terms of prayer clauses (B) and (C), which read as

under:-

(B) By issuing a writ of mandamus or any other appropriate writ or order or direction in the like nature, the respondent Nos. 1 to 5 be directed to release the land of the petitioner i.e. the land out of survey No. 49/1 admeasuring 26R and land out of Sy. No. 49/2 admeasuring 318.75 sq.m. situated at village

from development plan of Shahada town and to permit the petitioner to develop or dispose the same as per her own desire.

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of the land of the petitioner out of survey No. 49/1 admeasuring 26R and out of Sy. No. 49/2A admeasuring 318.75 sq.m. situated at village Maloni, Tq. Shahada has been lapsed and the petitioner is entitled to develop the land as per the lay out submitted by her along with her application dated 31/12/2013.

10. The Writ Petition is disposed of.

11. No costs.

                Sd/-                                     Sd/-
        [SANGITRAO S. PATIL]                      [T.V. NALAWADE]
               JUDGE                                    JUDGE

npj/wp9778-2014