Maya Kishore Jamunh (Thakur) vs The State Of Maharashtra, Thr. The ...
2021 Latest Caselaw 17840 Bom

                                                   1                               34.WP8715.18(j)




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

                                WRIT PETITION NO.8715/2018


Maya Kishore Jamunh (Thakur)                                                ...PETITIONER
Age : 56 years. Occ.: Housewife,
R/o. Behind Sindhi High School,
Kailesh Tekdi, Akola-444 001.

                              ...V E R S U S...

1]    The State of Maharashtra through    .......                           RESPONDENTS
      the Secretary Urban Development Department,
      Mantralaya, Mumbai-32.

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

3]    The Municipal Corporation, Akola
      through its Commissioner at Akola
      O/o Municipal Corporation Akola,
      Tq. Akola, District Akola.

4]    Town Planner Akola,
      Municipal Corporation, Akola,
      O/o Municipal Corporation, Akola,
      Tq. Akola, District Akola.

5]    The Collector, Akola, through its
      Special Land Acquisition Officer, Collector Office,
      Akola,Collector Office, Akola-444001.

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Shri G.K.Mundhada, Advocate for petitioner.
Shri N.R.Patil, Assistant Government Pleader for respondent Nos. 1, 2 and 5.
Shri S.V.Sohoni, Advocate for respondent no.3.
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                                      2                       34.WP8715.18(j)



                       CORAM : A.S.CHANDURKAR and G.A.SANAP, JJ.

DATED : 22nd December, 2021

ORAL JUDGMENT (Per A.S.CHANDURKAR, J.)

Rule. Rule made returnable forthwith and heard the learned

counsel for the parties.

2. The petitioner is the owner of land at Survey No.12/1 Village

Kaulkhed, Taluka and District Akola, which admeasures 1 H 41 R in the

development plan of the City of Akola that was sanctioned on 31.12.1992. The

same came into force on 01.03.1993. The land owned by the petitioner was

shown as reserved for Government Administrative purposes vide Reservation

No.94. The petitioner therefore was prevented from using the said land for

residential purpose. After expiry of the period of more than ten years as no

steps were taken for acquisition of the said land, a joint notice under Sections

49 and 127 of the Maharashtra Regional and Town Planning Act, 1966 (for

short, 'the Act of 1966') was issued on 03.05.2017. This notice was duly

served at the Municipal Corporation through its Commissioner, Town Planer,

Akola as well as the Collector, Akola. That notice was also sent to the

Secretary, Urban Development Department as well as the Director, Town

Planning, Pune. Thereafter on 15.06.2017 the petitioner was heard pursuant

to the notice under Section 49 of the Act of 1966. On 07.11.2017 the notice 3 34.WP8715.18(j)

issued under Section 49 was confirmed under the provisions of Section 49(4)

of the Act of 1966 and the Collector was directed to take necessary steps

within a period of one year for acquisition of that land. On noticing that

despite lapse of period of one year no steps were taken, according to the

petitioner the deeming fiction under Section 49(7) of the Act of 1966 started

operating. The petitioner filed the present writ petition on 21.12.2018

seeking a direction against the Collector to deposit 30% of the amount of

compensation in the Government Treasury as per Government Resolution

dated 01.08.2016 for the purposes of acquisition. Period of 24 months after

issuance of purchase notice under Section 127 of the Act of 1966 expired on

07.05.2019 during the pendency of the writ petition. After expiry of period

of 24 months from the issuance of the purchase notice, the writ petition was

amended and a declaration that Reservation No.94 had lapsed has been

sought.

3. It is in the aforesaid backdrop the learned counsel for the parties

have been heard.

4. Shri G.K.Mundhada, learned counsel for the petitioner submits that

in view of provisions of Section 49(7) of the Act of 1966 since the period of

more than one year had lapsed from the date of confirmation of notice given

under Section 49 of the Act of 1966, the land in question was deemed to be

released from the reservation. Further on the expiry of period of 24 months 4 34.WP8715.18(j)

from the service of purchase notice as no steps for acquisition of that land

were taken, the reservation stood lapsed. It was permissible for the land

owner to issue composite notice under Sections 49 and 127 of the Act of 1966.

This position was clear in view of the judgment of the Division Bench in

Hasina Kudbuddin Shaikh and ors. vs. Karad Municipal Council and ors. 2019

(1) Mh.L.J. 126. He therefore submitted that since all requisite compliances

had been made by the petitioner and no steps were taken for acquiring the

land in question, the petitioner was entitled for a declaration that Reservation

No.94 had lapsed.

5. Shri N.R.Patil, learned Assistant Government Pleader for

respondent nos. 1, 2 and 5 as well as Shri S. V. Sohoni, learned counsel for

the respondent no.3 opposed the aforesaid submissions. It was submitted by

the learned counsel for the respondent no.3 that since notice dated

03.05.2017 was not issued by the land owner but by his counsel, the same

was not valid. Further by only supplying the copy of 7/12 extracts without

any document of title, the requirements of Section 127 were not satisfied. It

was thus submitted that the petitioner was not entitled for any relief

whatsoever. Shri S.V.Sohoni, learned counsel for the respondent no.3 sought

to place reliance on the decision in Perfect Machine Tools Co. Ltd. vs. State of

Maharashtra and ors. 2008 (2) Mh.L.J. 404 in that regard.

5 34.WP8715.18(j)

In response to the aforesaid the learned counsel for the petitioner

submitted that issuance of purchase notice by counsel was permissible. He

submitted that the decision relied upon by the learned counsel for the

respondent no.3 had been overruled by the Hon'ble Supreme Court in Perfect

Machine Tools Company Limited vs. State of Maharashtra and ors. (2017) 16

SCC 482. Further in Abdul Gani N Wadwan vs. State of Maharashtra and ors.

2018 (4) Mh L.J. 454, it was held that entries in 7/12 extracts were sufficient

to hold that the person named therein had interested in the land in question.

Hence the grounds urged by the respondents had no merit.

6. We have given due consideration to the rival submissions and we

have perused the material on record. The undisputed facts on record indicate

that the composite notice dated 03.05.2017 issued under Sections 49 and 127

of the Act of 1966 was served on all concerned parties by 08.05.2017.

Pursuant thereto the State Government heard the petitioner in the matter of

confirmation of the notice under Section 49 and passed an order on

07.11.2017 by confirming the purchase notice under Section 49(4) of the Act

of 1966. It is further clear that the period of one year as contemplated by

Section 49(7) and the period of 24 months as contemplated by Section 127 of

the Act of 1966 has passed. As a result the deeming fiction under Section

49(7) of the Act of 1966 would operate. Similar is the position with regard to

Section 127 of the Act of 1966. In Hasina Kudbuddin Shaikh and ors. (supra) 6 34.WP8715.18(j)

the Division Bench of this Court has held that it was permissible for a land

owner to issue composite notice under Sections 49 and 127 of the Act of 1966.

Thereafter in Abdul Gani (supra) it has been held by the Division Bench that

furnishing of relevant revenue records in the form of 7/12 extracts was

sufficient to indicate the interest of the person in the land mentioned in the

said record. There is no dispute that alongwith the notice dated 03.05.2017,

the land owner had submitted relevant 7/12 extracts for consideration.

Coming to the contention that such purchase notice ought to have been issued

by the person interested and not by his counsel by placing reliance on the

decision in Perfect Machine Tools Company Limited ( supra) [High Court], it is

seen that this decision has been reversed by the Hon'ble Supreme Court in

Perfect Machine Tools Company Limited (supra) [Supreme Court].

7. Consequently we find that all legal requirements that have to be

complied with for seeking benefit of the deeming fiction under Section 49(7)

as well as for seeking lapsing of the reservation under Section 127 of the Act

of 1966 have been fulfilled. The petitioner is thus entitled for the relief of the

declaration that Reservation No.94 with regard to Survey No.12/1 of Village

Kaulkhed in respect of land admeasuring 1 H 41 R has lapsed under Section

127 of the Act of 1966. We declare accordingly.

Consequently, the respondent no.1 shall issue notification in that

regard within a period of eight weeks from the service of copy of this order on 7 34.WP8715.18(j)

it. It is further declared that the petitioner is entitled to develop the land

mentioned above in the manner as is permissible in the case of adjacent land

under the relevant plan.

Rule is made absolute in aforesaid terms with order as to costs.

                        (G.A.SANAP, J.)                            (A.S.CHANDURKAR, J.)




            Andurkar..




Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
23.12.2021 14:27