Bombay High Court
Kumarsing Hilalsing Patil And ... vs The State Of Maharashtra And ... on 17 August, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6940 OF 2018
1. Kumarsing s/o Hilalsing Patil,
Age : 76 years, Occupation : Agriculturist,
R/o Bungalow No.4, Vikas LIC Colony,
Ring Road, Jalgaon,
District Jalgaon.
2. Nitendrasing s/o Kumarsing Patil,
Age : 51 years, Occupation : Service,
R/o Bungalow No.4, Vikas LIC Colony,
Ring Road, Jalgaon,
District Jalgaon.
....PETITIONERS
-VERSUS-
1. State of Maharashtra.
Through Principal Secretary,
Urban Development Department,
Mantralaya, Mumbai-431032.
2. The Director of Town Planning,
Maharashtra State, Pune,
District Pune.
3. The Assistant Director of Town Planning,
Jalgaon, District Jalgaon.
4. The Municipal Corporation of Jalgaon,
Vallabhbhai Tower, Zilla Peth, Jalgaon,
District Jalgaon.
Through it's Commissioner.
....RESPONDENTS
...
Advocate for the Petitioners : Shri Wani Girish V.
AGP for Respondents 1 to 3 : Shri S.G. Sangle
::: Uploaded on - 20/08/2021 ::: Downloaded on - 07/10/2021 20:24:54 :::
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Advocate for Respondent 4 : Shri V.D. Gunale
...
CORAM : RAVINDRA V. GHUGE
&
S.G. MEHARE, JJ.
DATE :- 17th August, 2021
Oral Judgment (Per Ravindra V. Ghuge, J.):-
1. Rule. Rule made returnable forthwith and heard
finally by the consent of the parties.
2. The petitioners have put forth prayer clauses A and
B as under :-
"A) By a writ of mandamus or orders or directions
in the nature of mandamus, petitioner's land
Gat No.340/1 admeasuring H 2 R 40 assessed
R 25 assessed at Rs.11.55 situated within the
limits of village Pimprala, Tal and Dist. Jalgaon
be declared as released from reservation under
Section 127 of the Maharashtra Regional and
Town Planning Act, 1966 and is available for
the purpose of development permissible in the
case of adjacent land under the relevant plan.
B) Pending hearing and final disposal of this
petition, Respondents be restrained from taking
any steps to acquire and to take possession, re-
reservation of petitioner's land Gat No.340/1
admeasuring H 2 R 40 and Gat No.340/2
admeasuring H 2 R 25 situated within the
limits of Respondent No.4 Municipal
Corporation, Jalgaon."
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3. Petitioner No.1 is the owner and possessor of the
land Gat No.340/1 admeasuring 2 H and 40 R within the limits of
village Pimprala, Taluka and District Jalgaon. Similarly,
petitioner No.2 is the owner and possessor of the land Gat
No.340/2 admeasuring 2 H and 25 R within the limits of the
same village.
4. On 10.08.2004, the Development Plan (DP) for
Jalgaon city was sanctioned by the State Government. The lands
of the petitioners were reserved in the said DP for development
of garden, primary school and high school. For 10 years, the
Acquiring Authority did not initiate any step in accordance with
Section 126 of the Maharashtra Regional and Town Planning
Act, 1966 (MRTP Act). Finally, the petitioners issued notice on
15.06.2016 under Section 127 of the MRTP Act and offered that
respondent No.4/ Municipal Corporation should acquire the said
land and pay compensation to the petitioners in accordance with
the provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013. The said notice was received by
respondent No.4 on 17.06.2016.
5. These two petitioners have filed this petition on
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28.06.2018. Respondent No.4 has offered the Transferable
Development Rights (TDR) to the petitioners in March, 2020,
which has not been accepted by the petitioners. The said TDR is
for about 06 lac square feet land.
6. The learned advocate representing respondent No.4/
Municipal Corporation, after taking specific instructions from the
Municipal Corporation, submits that besides offering TDR, the
Municipal Corporation does not have money to pay to the
petitioners. Monthly salaries of Class IV employees are also not
being regularly paid. The Municipal Corporation is in an
extremely weak financial condition.
7. Considering that the land at issue was reserved for
development of garden, primary school and high school and
keeping in view that the Municipal Corporation has put forth a
plea that it has no funds at all to pay to the petitioners, we deem
it appropriate to refer to paragraph 13 of the judgment delivered
by this Court [to which one of us (Ravindra V. Ghuge, J.) is a
party] in the matter of Chalisgaon Municipal Council,
Chalisgaon and others vs. The State of Maharashtra and others,
2014 (5) AIR Bom R 24 : 2015(4) ALL MR 256 . The said
paragraph 13 reads as under :-
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"13. Once again, the salutary principle of interpretation,
namely, a Statute, particularly a Planning Statute,
must be construed bearing in mind the object and
purpose it seeks to achieve would apply. The
Legislative intent, therefore, cannot be lost sight of
and no provision can be seen out of context or in
isolation and this principle will apply equally to the
interpretation of this provision. This Section falls
in Chapter VII titled as "Land Acquisition". That
relates to compulsory acquisition of land needed
for purposes of Regional Plan, Development Plan,
or Town Planning Schemes etc. If the provision,
conferring power to compulsorily acquire the land,
was not coupled with the mandate to acquire it so
as to fulfill the purpose or object of a development
plan and the statute in question, then, possibly a
complaint could have been made that what is
conferred is only a power with no corresponding
responsibility or duty. Therefore, acquisition of
land, reserved in plan can be either by agreement
by paying an amount agreed to and the owner then
hands over the land for the required purpose,
allocation or designation or in lieu of any such
amount, by granting the land owner or the lessee,
subject, however, to the lessee paying the lessor or
depositing with the Planning Authority,
Development Authority or Appropriate Authority,
as the case may be, for payment to the lessor, an
amount equivalent to the value of the lessor's
interest or the land owner's interest to be
determined by way of any of the principles laid
down in the Land Acquisition Act, 1894, but in the
form or shape of Floor Space Index (FSI) or
Transferable Development Rights (TDR) against
the area of land surrendered free of cost and free
from all encumbrances, and also further additional
FSI or TDR against the development or
construction of the amenity on the surrendered
land at his cost, as the Final Development Control
Regulations prepared in this behalf provide, or
acquisition of the land by resorting to the
provisions of the Land Acquisition Act, 1894 and
to facilitate the same, make an application to the
State Government for acquiring the land. Thus, it is
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a futile to urge that because of lack of funds or lack
of money, the Council or the Corporation is
helpless and cannot provide to the residents or the
people at large any amenity by carrying forward or
implementing the proposals, designations and
allocations in the Development Plan. The property
or the land designated, allocated or reserved for
such purpose can be acquired by an agreement
with the owner, which may provide for making
payment of the agreed amount or in lieu of such
amount, granting the land owner or the lessor's, the
benefits in return of having the proposals or
designations or allocations in the development plan
implemented and carried out through him. The
owner, therefore, benefits by having the unreserved
or unallocated or un-designated portion free for
other development in terms of the Planning Law
and either he surrenders the balance portion for
enabling the Planning Authority, Development
Authority or Appropriate Authority to enforce or
implement the proposals or reservations or he
himself develops this amenity, facility and proposal
and surrenders it free of costs and free from all
encumbrances and in lieu of that, gets the FSI,
additional FSI or TDR. Therefore, it is not as if, the
land has to be acquired by taking recourse only to
the Land Acquisition Act, 1894 or that is the only
mode by which the proposals, designations or
allocations can be implemented, enforced and
carried out."
8. It is, therefore, obvious that in the period of two
years, post service of notice under Section 127, the Municipal
Corporation has not taken any steps. Even the TDR was offered
almost four years later in March, 2020.
9. It requires no debate that gardens and play grounds
are the lungs of every city. Primary and secondary schools
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having proper play grounds would lead to physical and mental
growth of students, which would make them healthy, both
mentally and physically. It is most unfortunate that steps required
to be taken under Section 42 of the MRTP Act, are not taken. In
several hundreds of cases coming up before this Court, we find
that there is total laxity on the part of the Acquiring Body, who
are completely oblivious of Section 42 of the MRTP Act. In such
backdrop, knowing that the Acquiring Body has done little in
furtherance of the operation of any plan or plans, as no steps are
taken, we are compelled to entertain such petitions that actually
defeat the very intent and object of the MRTP Act, which reads
as under :-
"An Act to make provision for planning the
development and use of land in Regions
established for that purpose and for the constitution
of Regional Planning Boards therefor; to make
better provisions for the preparation of
Development plans with a view to ensuring that
town planning schemes are made in a proper
manner and their execution is made effective; to
provide for the creation of new towns by means of
Development Authorities; to make provisions for
the compulsory acquisition of land required for
public purposes in respect of the plans; and for
purposes connected with the matters aforesaid.
WHEREAS, it is expedient to make
provision for planning the development and use of
land in Regions established for that purpose and
for the constitution of Regional Planning Boards
thereof; to make better provision for the
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preparation of Development plans with a view to
ensuring that town planning schemes are made in a
proper manner and their executions is made
effective; to provide for the creation of new towns
by means of Development Authorities; to make
provision for the compulsory acquisition of land
required for public purposes in respect of the plans;
and for purposes connected with the matters
aforesaid; It is hereby enacted in the Seventeenth
Year of the Republic of India as follows:-"
10. In view of the above, this Writ Petition is allowed.
Lands of these two petitioners referred to herein above shall be
deemed to be released from such reservation and shall become
available to the owners for the purpose of development as
otherwise permissible as like in the case of adjacent lands in the
relevant plan.
11. Rule is made absolute in the above terms.
kps (S.G. MEHARE, J.) (RAVINDRA V. GHUGE, J.)
