Bombay High Court
Kusum Dashrath Unde vs The State Of Maharashtra And ... on 21 March, 2017
Bench: R.M. Borde
1 WP Nos. 6057/2016 & Anr.
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6057 OF 2016
Sau. Kusum w/o Dashrath Unde
Age 72 years, Occ. Agri & Household,
R/o. Near Jumma Masjit, Rahuri,
Tq. Rahuri, District Ahmednagar
- PETITIONER
VERSUS
1. The State of Maharashtra
Through the Secretary for
Urban Development Department
Mantralaya, Mumbai
2. The Chief Officer,
Municipal Council, Rahuri
Tq. Rahuri, District Ahmednagar
- RESPONDENTS
WITH
WRIT PETITION NO.6058 OF 2016
1. Sudarshan s/o. Sundarlal Bihani
Age 40 years, Occ. Agriculture
R/o. Rahuri, Tq. Rahuri,
Dist. Ahmednagar
2. Sau. Laxmibai w/o Sundarlal Bihani
Age 71 years, Occ. Agri. & Household,
R/o. Rahuri, Tq. Rahuri,
Dist. Ahmedngar,
...PETITIONERS
VERSUS
1. The State of Maharashtra
Through the Secretary for
Urban Development Department
Mantralaya, Mumbai
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2 WP Nos. 6057/2016 & Anr.
2. The Chief Officer,
Municipal Council, Rahuri
Tq. Rahuri, Dist. Ahmednagar
...RESPONDENTS
...
Mr.V.D.Hon, Senior Advocate and A.V. Hon, Advocate
for Petitioner/s
Mr.AR Borulkar, AGP for Respondent No.1 /State.
Mr.R.V. Naiknaware for Respondent No.2
-----
CORAM : R.M.BORDE &
P.R.BORA,JJ.
DATE : 21
st
MARCH,2017.
ORAL JUDGMENT (PER:-R.M.BORDE,J.)
1) Heard. Rule. With the consent of the
parties, the petitions are taken up for final
disposal at admission stage.
2) The petitioners are praying for issuance
of declaration that the reservation prescribed
for public amenities in respect of the properties
belonging to the petitioners in the final
development plan prepared for Rahuri Municipal
Council, shall be deemed to have lapsed in view
of the operation of the provisions of Section 127
of The Maharashtra Regional and Town Planning
Act, 1966 (for short, MRTP Act).
3) The petitioners contend that the final
development plan for Rahuri Municipal Council was
published in the official Gazette on 16.10.1997.
The properties, viz., 1) land admeasuring 80 R.
out of survey No.21/1/2 (in WP No.6057/2016) and
2) the land admeasuring 1 hectare and 17 Are,
out of Survey No.31, belonging to petitioner no.1
in WP No.6058/2016; whereas the land to the
extent of 1 hectare and 76 Ares out of Survey
No.30 belonging to petitioner no.2 in the
aforesaid writ petition, have been prescribed for
public purpose in the final development plan
prepared for Rahuri Municipal Council.
4) On completion of the period of ten years
of preparation of the Development Plan, the
petitioners issued a notice to the Municipal
Council, calling upon the Local Authority to take
steps for acquisition of the properties under the
reservation. It has been further informed that
in the event of failure of the Municipal Council
to take requisite steps within contemplation of
the provisions of the MRTP Act, the reservation,
designation or allotment concerning the lands
belonging to the petitioners under the final
development plan prepared for Rahuri Municipal
Council, shall stand lapsed automatically. It is
the further contention of the petitioners that
the notices issued by the respective petitioners,
were served on the Municipal Council, however, no
steps have been taken by the Municipal council
for acquisition of the properties prescribed
under the reservation in contemplation of the
provisions of Section 126 of the MRTP Act. The
petitioners, therefore, contend that by operation
of law, the reservation, designation or allotment
of the properties under the final development
plan prepared for the local authority shall stand
lapsed.
5) An affidavit in reply has been presented
on behalf of the Municipal Council, wherein it
has been contended that since the steps have been
taken for acquisition of the properties of the
petitioners, the reservation, allotment or
designation in relation to the properties
belonging to the petitioners, shall not lapse and
it is open for the Municipal council to acquire
the properties. It is contended that a
Resolution has been passed by the Municipal
council for acquisition of the lands and
proceedings of acquisition have been initiated.
6) It is not a matter of dispute that steps
within contemplation of the provisions of Section
126 of the MRTP Act have not been initiated. The
Respondent/Municipal Council failed to point out
notification issued under Section 19 of the Right
To Fair Compensation and Transparency in Land
Acquisition Rehabilitation and Re-settlement Act,
2013 (herein after referred to, the Act of 2013)
7) It would be appropriate to refer to the
judgment of the Hon'ble Apex court in the matter
of Girnar Traders Vs. The State of Maharashtra -
(2007) 7 SCC 555. The Apex Court has observed in
para Nos.56 & 57 of the aforesaid judgment, as
quoted below, -
"56. The underling principle
envisaged in Section 127 of the
MRTP Act is either to utilise the
land for the purpose it is reserved
in the plan in a given time or let
the owner utilise the land for the
purpose it is permissible under the
town planning scheme. The step
taken under the section within the
time stipulated should be towards
acquisition of land. It is a step
of acquisition of land not step for
acquisition of land. It is trite
that failure of authorities to take
steps which result in actual
commencement of acquisition of land
cannot be permitted to defeat the
purpose and object of the scheme of
acquisition under the MRTP Act by
merely moving an application
requesting the Government to
acquire the land , which Government
may or may not accept. Any step
which may nor may not culminate in
the step for acquisition cannot be
said to be a step towards
acquisition.
57. It may also be noted that
the legislature while enacting
Section 127 has deliberately used
the word "steps" in plural and not
in singular which are required to
be taken for acquisition of the
land. On construction of Section
126 which provides for acquisition
of the land under the MRTP Act, it
is apparent that the steps for
acquisition of the land would be
issuance of the declaration under
Section 6 of the LA Act. Clause (c)
of Section 126(1) merely provides
for a mode by which the State
Government can be requested for the
acquisition of the land under
Section 6 of the LA Act. The making
of an application to the State
Government for acquisition of the
land would not be a step for
acquisition of the land under
reservation. Sub-section (2) of
Section 126 leave it open to the
State Government either to permit
the acquisition or not to permit,
considering the public purpose for
which the acquisition is sought for
by the authorities. Thus, the steps
towards acquisition would really
commence when the State Government
permits the acquisition and as a
result thereof publishes the
declaration under Section 6 of the
LA Act."
8) Since the notification within
contemplation of Section 19 of the Act of 2013
has not been issued, the contention of the local
authority that the steps have been taken for
acquisition of the properties belonging to the
petitioners, is not acceptable. On account of
failure of the local authority to initiate the
proceedings for land acquisition within a period
of 24 months from the date of receipt of the
notice under Section 127 of the MRTP Act, the
reservation, allotment or designation in respect
of the properties belonging to the petitioners,
prescribing the final development plan prepared
for the local authority, shall stand lapsed. As
a result of lapsing of reservation, allotment or
designation, the State Government is directed to
notify the same by an order to be published in
the official gazette, as expeditiously as
possible and preferably within six months from
today.
9) Rule is accordingly made absolute
according. There shall be no order as to costs.
(P.R.BORA) (R.M.BORDE)
JUDGE JUDGE
bdv/
