Bombay High Court
Gajanan S/O Gurunath Dubbewar vs State Of Maharashtra, Thr. ... on 5 January, 2018
Bench: Vasanti A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.1192 OF 2017
1. Smt. Pushpabai Maroti Tagadpallewar,
Aged about : 68 years, Occ. Household.
2. Sharad s/o Maroti Tagadpallewar,
Aged about : 65 years, Occ. Agriculturist.
3. Pradeep s/o Maroti Tagadpallewar,
Aged about : 60 years, Occ.
4. Kiran s/o Maroti Tagadpallewar,
Aged about : 42 years, Occ.
5. Prashant s/o Maroti Tagadpallewar,
Aged about : 40 years, Occ.
6. Girish s/o Maroti Tapadpallewar,
Aged about : 38 years, Occ.
Nos.1 to 6 are R/o Devi Ward Pusad,
Tah. Pusad, District Yavatmal.
7. Sau. Manjusha w/o Ganesh Basatwar,
Aged about : 41 years, Occ. Household,
R/o Shivaji Nagar Pune. ..... PETITIONERS
...V E R S U S...
1. State of Maharashtra,
Through Secretary,
Urban Development Department
Mantralaya, Mumbai-32.
2. Chief Executive Officer,
Municipal Council Pusad,
Tah. Pusad, District Yavatmal. ... RESPONDENTS
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WITH
WRIT PETITION NO.1193 OF 2017
Gajanan s/o Gurunath Dubbewar,
Aged 40 years, Occ. Agriculturist,
R/o Hatkeshwar Ward, Pusad,
Tq. Pusad, Distt. Yavatmal. ..... PETITIONER
...V E R S U S...
1. State of Maharashtra,
Through Secretary,
Urban Development Department
Mantralaya, Mumbai.
2. Municipal Council Pusad,
District Yavatmal. ... RESPONDENTS
WITH
WRIT PETITION NO.1194 OF 2017
1. Smt. Pushpabai Maroti Tagadpallewar,
Aged about : 68 years, Occ. Household.
2. Sharad s/o Maroti Tagadpallewar,
Aged about : 65 years, Occ. Agriculturist.
3. Pradeep s/o Maroti Tagadpallewar,
Aged about : 60 years, Occ.
4. Kiran s/o Maroti Tagadpallewar,
Aged about : 42 years, Occ.
5. Prashant s/o Maroti Tagadpallewar,
Aged about : 40 years, Occ.
6. Girish s/o Maroti Tapadpallewar,
Aged about : 38 years, Occ.
Nos.1 to 6 are R/o Devi Ward Pusad,
Tah. Pusad, District Yavatmal.
7. Sau. Manjusha w/o Ganesh Basatwar,
Aged about : 41 years, Occ. Household,
R/o Shivaji Nagar Pune. ..... PETITIONERS
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...V E R S U S...
1. State of Maharashtra,
Through Secretary,
Urban Development Department
Mantralaya, Mumbai-32.
2. Chief Executive Officer,
Municipal Council Pusad,
Tah. Pusad, District Yavatmal. ... RESPONDENTS
-------------------------------------------------------------------------------------------
Shri N. S. Deshpande, Advocate for the petitioners.
Shri K. L. Dharmadhikari, Assistant Government Pleader for respondent No.1.
Shri Pravin Deshmukh, Advocate for respondent No.2.
-------------------------------------------------------------------------------------------
CORAM:-
SMT. VASANTI A NAIK &
ARUN D. UPADHYE, JJ.
DATED :
05/01/2018.
ORAL JUDGMENT : (PER SMT. VASANTI A NAIK
, J.)
1. Since the issue involved in these petitions is identical and
similar prayers are made therein, they are heard together and are
decided by this common Judgment.
2. Rule. Rule is made returnable forthwith. The writ petitions
are heard finally at the stage of admission with the consent of the
learned counsel for the parties.
3. By these writ petitions, the petitioners have sought a
declaration that the reservation of the land of the petitioners, as
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described in the prayer clauses in the writ petitions has lapsed in view
of the provisions of Section 127 of the Maharashtra Regional and Town
Planning Act and the petitioners would be entitled to utilize the land as
is permissible in the case of adjacent land.
4. The lands of the petitioners are situated in Pusad, Tah.
Pusad, Dist. Yavatmal. The lands of the petitioners were reserved as per
the final development plan published for the city of Pusad on
26/07/1998 for different purposes. Since the respondent No.2 -
Municipal Council did not take any steps for the acquisition of the land
within 10 years from the publication of the final development plan on
26/07/1998, the petitioners served separate notices on the respondent
No.2 - Municipal Council, dated 22/07/2015 under Section 127 of the
Act for the acquisition of the land within the time prescribed in the said
provision. It is the case of the petitioners that though the respondent
No.2 has received the notices issued by the petitioners, it has not taken
any steps for the acquisition of the land, as contemplated under the
provisions of the Act. It is stated that the necessary notification for the
acquisition of the land is not issued by the respondent No.2.
5. Shri Deshpande, the learned counsel for the petitioners
submitted that the Municipal Council was duly served with the purchase
notices dated 22/07/2015 but it has not taken any steps for the
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acquisition of land within one year from the date of service of the
notices. It is submitted that though the notices were received by the
respondent No.2 - Municipal Council on 23/07/2015, steps to acquire
the land were not initiated on or before 23/07/2016. It is stated that
since steps are not taken by the respondent No.2 for the acquisition of
land, the reservation of the land of the petitioners stands lapsed in view
of the provisions of Section 127 of the Act.
6. Shri Deshmukh, the learned counsel for the respondent
No.2 fairly admitted that due to financial crunch, the Municipal Council
could not gather the funds for acquiring the land of the petitioners. It is
however, stated that the relief sought by the petitioners may not be
granted in the circumstances of the case, as the notices under Section
127 (1) of the Act were not issued by the petitioners themselves but by
the counsel for the petitioners. It is submitted that the petitioners have
not joined the necessary parties to the writ petitions, inasmuch as the
Collector of District Yavatmal and the Municipal administration are not
joined as party respondents. It is submitted that in view of the non-
joinder of necessary parties, the petition is liable to be dismissed.
7. On hearing the learned counsel for the parties, it appears
that the declaration, as sought by the petitioners needs to be granted in
the circumstances of the case. The purchase notices dated 22/07/2015
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were duly served on the Municipal Council on 23/07/2015. In one of
the petitions bearing Writ Petition No.1193 of 2017, the Municipal
Council has gone to the extent of admitting that the reservation of the
land of the petitioner in that petition has lapsed in view of the
provisions of Section 127 of the Act. Admittedly, the respondent No.2
has not taken any effective steps, whatsoever for the acquisition of the
land of the petitioners. It is the case of the respondent No.2 that the
respondent No.2 could not have taken any effective steps in view of the
financial crunch. If the Municipal Council did not have the funds for the
acquisition of the land, the steps for acquiring the land could not have
been initiated. The steps have not being initiated by the respondent
No.2 within one year from 23/07/2015. In view of the clear and
unambiguous provisions of Section 127 of the Act, the reservation of the
lands of the petitioners is deemed to have elapsed in the circumstances
of the case. The final development plan had come into force on
26/07/1998. Admittedly, no steps were taken by the respondent No.2
to acquire the land of the petitioners within 10 years from the date of
the publication of the final development plan. The purchase notices
dated 22/07/2015 were received by the respondent No.2 on
23/07/2015. However, no steps were taken by the respondent No.2 for
the acquisition of land of the petitioners on or before 23/07/2016. In
the circumstances of the case, the reservation of the land of the
petitioners has lapsed in view of the provisions of Section 127 of the
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Act. A declaration to that effect needs to be granted. While holding so,
we are not inclined to uphold the submission made on behalf of
respondent No.2 that the notice is not legal and valid as the same is not
issued by the petitioners and the same is issued by the lawyers of the
petitioners on behalf of the petitioners. The said submission is ill-
founded and is recorded only to be rejected. There is no merit in the
submission made on behalf of the respondent No.2 that the petition
should fail as the petitioners have not joined the Collector and the
Municipal administration as party respondents. The joinder of the
aforesaid two parties would not be necessary in a petition filed by the
owner or a person interested in the land for a declaration that the
reservation of his / her land has lapsed in view of the provisions of
Section 127 of the Act. Since the Municipal Council is a necessary party
and the same is joined as respondent, it cannot be said that necessary
parties are not joined.
8. Hence, for the reasons aforesaid, the writ petitions are
allowed. It is hereby declared that the reservation of the lands of the
petitioners as mentioned in the final development plan has lapsed in
view of the provisions of Section 127 (1) of the Act and the land would
be available to the petitioners for the purpose of development, as is
permissible in the case of adjacent land under the relevant final
development plan. The State Government is directed to issue the
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notification in accordance with the provisions of Section 127 (2) of the
Act, at the earliest.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Choulwar
