Lalita Gyanchandji Sanchaity vs State Of Maharashtra Through ...
2017 Latest Caselaw 8383 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.

                                         WRIT PETITION NO. 4491 OF 2016

Lalita Gyanchandji Sanchaity,
aged 60 years, Occupation Household
work, R/o Sanchaity Complex, 
Rangargali, Aurangabad.                                                            ... PETITIONER

                                                              VERSUS

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

2. The Director of Town Planning,
     State of Maharashtra, Central
     Building, Pune-1.

3. The Municipal Council (M.C.)/Nagar
     Parishad, Darvha, through its Chief
     Officer, Tq. Darvha, Distt. Yavatmal.

4. Town Planner, Yavatmal, Prashaskiya
     Building, Near Collector Office,
     Yavatmal.

5. The Collector, Yavatmal, through Special
     Land Acquisition Officer, Collector
     Office, Yavatmal, District Yavatmal.                                        ... RESPONDENTS

                                       ....
Shri Nitin Vyawahare, Advocate with Shri G.K. Mundhada, Advocate for the 
petitioner.
Smt. A.R.  Kulkarni,  Assistant  Government Pleader for  respondent  No.1,2,4 
and 5.
                                       ....

                                                              CORAM :  PRASANNA B. VARALE AND
                                                                                  ARUN D. UPADHYE,    JJ.

DATED : 03RD NOVEMBER, 2017.

ORAL JUDGMENT : (Per Prasanna B. Varale, J.)



                       Rule.     Rule   made   returnable   forthwith.     Heard   finally   with 




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consent of the learned Counsel appearing on behalf of the respective parties.

2. The petitioner is before this Court seeking declaration that the

land owned by the petitioner at Survey No. 284 area admeasuring 2.43HR of

Mouza Darvha, Tq. Darvha, District Yavatmal which was kept reserved for

the purposes of playground in view of inaction of the respondents/

authorities, be declared as the land out of reservation and the petitioner be

permitted to develop the land.

3. Shri Vyawahare, learned Counsel for the petitioner submits that

the petitioner is the owner of the said land which is situated within the limits

of Municipal Council, Darvha. Though the said land was reserved for the

purpose of playground in a development plan of City of Darvha sanctioned

by the State Government on 16.10.1979, no steps were taken either to acquire

the land or to develop the playground for a long period and again in the

subsequent development plan of the year 2005, the land of the petitioner was

kept reserved for the very purpose i.e. for the playground vide reservation

No.20. The learned Counsel further submits that the petitioner finding that

there is no progress in the matter and the land of the petitioner is just kept

only reserved on paper, the petitioner was constrained to issue notice of

purchase in view of the provisions of MRTP Act and particularly under

Section 49 of the said Act. The said notice was issued on 05.06.2003 through

the lawyer of the petitioner. Shri Vyawahare, the learned Counsel submits

that the Municipal Council sought for certain documents from the petitioner

and the petitioner provided all those documents. The communication to

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that effect is also placed on record at Annexure-B of the petition. He then

submits that by communication dated 08.12.2003, it was informed to the

petitioner that the Municipal Council passed a resolution dated 17.06.2003

for initiating the steps for acquisition of the land and her purchase notice

was confirmed.

4. Shri Vyawahare, the learned Counsel for the petitioner submits

that the note in the said communication addressed to the Chief Officer,

Municipal Council makes its clear that the Chief Officer of the Municipal

Council was directed to submit the proposal expeditiously. It was also

cautioned in the note that if no steps are taken within the period of one year,

the land will have to be declared as out of reservation or the reservation

would be declared as lapsed and the Council would be responsible for such a

consequence. The learned Counsel submits that on 17.12.2003, the Council

only submitted the proposal to the Office of the Collector for acquisition of

the land. He further submits that on a spacious plea of the Municipal

Council that the proposal is submitted to the office of the Collector and

taking no other steps by the Municipal Council is nothing but an act to

deprive the petitioner from seeking benefit to which the petitioner is entitled

for and resultantly frustrating the provisions of the Act. Shri Vyawahare

submits that in identical circumstances, this Court in Writ Petition No. 4393

of 2009 and Writ Petition No. 4360 of 2016 decided by Nagpur and

Aurangabad Bench respectively, held that the petitioners are entitled to have

their lands released from the provisions of the Act for the purpose of

development by themselves.

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5. Smt. Kulkarni, the learned AGP vehemently opposes the petition

relying on the affidavit filed on behalf of respondent Nos.1,2,4 and 5 dated

26.04.2017 and 31.08.2017 respectively. She further submits that purchase

notice of the petitioner was confirmed and the Municipal Council, Darvha

had already initiated land acquisition proceedings within stipulated period.

As such the question of revised reservation does not arise and the prayer of

the petitioner is not maintainable.

6. Shri Kunal Nalamwar, Advocate holding for Shri Rahul Tajne,

learned Counsel for respondent No.3 prays for adjournment on the ground

of unavailability of Shri Tajne.

7. Perusal of the order sheet shows that on more than two

occasions, the petition is adjourned at the instance of Shri Tajne, learned

Counsel for respondent No.3/Municipal Council. We are unable to grant

request of adjournment made by Shri Nalamwar, Advocate holding for Shri

Tajne, learned Counsel for respondent No.3.

8. This Court, by order dated 05.08.2017, issued notice for final

disposal making it clear that the Court may hear the petition at the stage of

admission itself. In the reply filed by Municipal Council, the only ground

raised is of the Municipal Council forwarding its proposal for acquisition on

17.12.2003. It is then stated in the reply that if the Municipal Council gets the

opportunity, they are even now ready to clear the said land.

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9. In view of the rival contentions of the learned Counsel appearing

on behalf of the respective parties, we have gone through the material placed

on record as well as the judgments heavily relied on by the learned Counsel

for the petitioner. The factual aspects namely the petitioner being owner of

the land, the land kept reserved for playground in two development plans

and for more than 20 long years are not disputed. It is also not in dispute

that the petitioner gave a purchase notice in view of the provisions of MRTP

Act. The State Government admits such notice and confirms the notice. The

material placed on record then shows that by communication dated

08.10.2003, it was informed to the Chief Officer of the Municipal Council to

take steps expeditiously. The Municipal Council though submitted to the

office of the Collector that the proposal for acquisition is moved by the

Municipal Council, interestingly enough the documents which are placed on

record along with the affidavit of the State government shows that the

Municipal Council was informed to deposit 2/3rd amount against the

compensation to be paid and the initiation of steps under the Land

Acquisition Act of 2013 for land acquisition proceedings and for taking steps

under Section 19, the pre requirement is depositing the 100 per cent amount

of the compensation. It was informed to the Municipal Council that the

approximate amount would be Rs.17,49,42,400/- which to be deposited by

the Municipal Council under the new Act.

In reply to the said communication dated 09.08.2017, the Chief

Officer of the Municipal Council, Darvha submits to the Sub Divisional

Officer, Darvha that the Municipal Council made no provision for raising the

amount to be deposited against the compensation and it is impossible for the

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Municipal Council to deposit the amount of Rs. 17,49,42,400/-. On the

backdrop of these facts, learned Counsel for the petitioner is justified in

placing heavy reliance on the judgments of this Court in the cases of M/s.

Revati Construction and Developers .v. The State of Maharashtra and

others and Satish Parashram Shinde and others .v. The Pachora Municipal

Council and another (in Writ Petition No. 4393 of 2009 and Writ Petition

No. 4360 of 2016 respectively). Shri Vyawahare, the learned Counsel is also

justified in submitting that the Municipal Council cannot take a spacious

plea to reject the claim of the petitioner on the ground that the Counsel has

submitted the proposal for land acquisition and then left it at that stage only

without taking any further steps. In both the judgments of this Court, the

judgment of the Apex Court in the matter of Girnar Traders .v. State of

Maharashtra and others (reported in 2007(7) SCC, 555) is referred to. It

would not be out of place to refer the relevant observations of the Apex in the

said judgment.

"56. The underlying 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 and 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

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not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition.

57. ......

58. ......

59. ......

60. On a conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides a different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to sub-section (2) of Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or other authority.

61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under Clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i)

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application by the appropriate authority to the State Government under Section 126(1)(c); and (ii) declaration by the State Government on receipt of the application mentioned in Clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4)."

10. This Court in Writ Petition No. 4360 of 2016 was pleased to

observe that the provisions of Section 127 and Section 49 of the MRTP Act

fetters on the power of eminent domain. In that matter also, the purchase

notice was issued by the land owner and the same was confirmed by the

State Government and then no steps were taken pursuant to the

confirmation of the said notice till the decision of the Court.

11. Considering all the above referred facts, in our opinion, the

Counsel for the petitioner made out a case. The reservation on land of the

petitioner being Survey No. 284 area admeasuring 2.43HR of Mouza Darvha,

Tq. Darvha, District Yavatmal stands lapsed. The Municipal Council shall

take further consequential steps. The petitioner is entitled to have her land

released from the provisions of the Act for the purposes of development by

her.

12. In the result, writ petition is allowed. Rule is made absolute in

the aforesaid terms with no order as to costs.

                    JUDGE                                                                  JUDGE 
          
 *rrg.