Smt. Shobha Mahavir Marle And Ors vs State Of Maharashtra Thru Dept. Of ...
2021 Latest Caselaw 3349 Bom

          Digitally signed
Swaroop   by Swaroop S.
          Phadke
S.
                                                                 10 wpst 1638 of 2020.doc
          Date:
Phadke    2021.04.06
          16:47:12 +0530




                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         CIVIL APPELLATE JURISDICTION
                       WRIT PETITION (ST) NO.1638 OF 2020

Shobha Mahavir Marle and Ors.                            ...    Petitioners
       versus
State of Maharashtra and Anr.                            ...    Respondents

Mr. Manoj A. Patil, for Petitioners.
Ms. M.P.Thakur, AGP, for State.
Mr. Tanaji Mhatugade, for Respondent No.2.

                                  CORAM:     S.J. KATHAWALLA &
                                             VINAY JOSHI, JJ.

                                  DATE:      23rd FEBRUARY, 2021

P.C.:

1. The Petitioners are the owners of land admeasuring 57 R of Gut No.140

situated at Kasba Vadgaon, Tal. Hatkangale, District Kolhapur ('the said land').

Respondent No.1 is the State of Maharashtra and Respondent No.2 is the Vadgaon

Municipal Council.

2. The Petitioners have filed the above Writ Petition inter alia seeking the

following reliefs :

"(b) This Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order and or direction and to direct the Respondent No.1 through its Urban Development Department, to issue Notification of Lapsation by declaring that the Reservation No.7 of Vadgaon Municipal Council reserved for primary school and for play ground stands

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lapsed in respect of the land admeasuring 57 R of Gut No.140 situated at Vadgaon, Tal. Hatkanangale, Dist. Kolhapur, owned by the Petitioners;

(c) This Hon'ble Court be pleased to issue writ of mandamus or any other appropriate writ, order and or direction and to direct the Respondent No.1 through its department of Urban Development to issue Notification of Lapsation by declaring that the Reservation No.7 of Vadgaon Municipal Council reserved for primary school and for play ground lapsed in respect of the land admeasuring 57 R of Gut No.140, situated at Vadgaon, Tal. Hatkanangale, Dist. Kolhapur, owned by the Petitioners at the earliest and within a period of 8 weeks;"

3. The facts and circumstances giving rise to the present petition are briefly set

out hereunder :

3.1 As set out hereinabove, the Petitioners are the owners of the said land. The

development plan of the Vadgaon Municipal Council was sanctioned by the

Government of Maharashtra vide its Notification No.TPS-2182/3002/UD-7 dated

30th August, 1983 which came into force on 15th November, 1983.

3.2 In the said final development plan, the said land was shown as reserved vide

Reservation No.7 for "primary school and playground".

3.3 According to the Petitioners, for the past 34 years i.e. from the year 1983 to

2017, the Respondent No.2 - Vadgaon Municipal Council failed to acquire the said

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land which was kept under reservation vide Reservation No.7 for primary school and

playground.

3.4 The Petitioners therefore, issued a purchase notice dated 2 nd December,

2017 (served on 26th December, 2017) under Section 127 of the Maharashtra Regional

and Town Planning Act, 1966 ('the said Act') to the Respondent No.2 and requested

the Municipal Council to take appropriate steps for acquisition of the said land of the

Petitioners.

3.5 All the necessary documents were submitted to the Vadgaon Municipal

Council along with the purchase notice.

3.6 By a letter dated 12th January, 2018, Respondent No.2 - Vadgaon Municipal

Council called upon the Petitioners to submit documents set out therein within a

period of 7 days.

3.7 Though according to the Petitioners, they had already submitted the said

documents to the Office of the Respondent No.2, the Petitioners on 19 th January, 2018

once again submitted the required documents to the Vadgaon Municipal Council.

3.8 After serving the purchase notice on 26th December, 2017 under Section 127

of the said Act, the Petitioners waited for the statutory period of two years, during

which no steps in regard to the acquisition of the said land were taken by the

Respondent No.2 - Council.

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3.9          The Petitioners were therefore, compelled to file the above Writ Petition

seeking a declaration that the reservation qua the Petitioners' said land has lapsed and

to issue a Notification in the official gazette notifying lapsing of the reservation of the

said land.

4. The Assistant Director, Town Planning, Kolhapur, has filed his Affidavit

dated 5th February, 2021 wherein he has inter alia stated that the validity of the

purchase notice served by the Petitioners on 26 th December, 2017 and the subsequent

action taken by the Respondent No.2 - Council towards the acquisition of the said

land under notice needs to be ascertained from the record of Respondent No.2 and

thereafter, the Court may pass suitable orders as it may deem fit and proper.

5. The Chief Officer of Respondent No.2 - Vadgaon Municipal Council, has

filed an Affidavit dated 15th February, 2021 on behalf of Respondent No.2 stating that

the Respondent No.2 has commenced the process for acquisition of the said land

within a period of two years from the date of service of the purchase notice, as per the

provisions of Section 127 of the said Act and therefore the present Writ Petition filed

by the Petitioners be dismissed with costs.

6. The Chief Officer of Respondent No.2 has in her Affidavit interalia relied on

and has annexed thereto the correspondence exchanged between the District

Collector, Kolhapur addressed to the Special Land Acquisition Officer - 11, Kolhapur,

the orders passed by the Chief Officer, the correspondence between the District

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Collector, Kolhapur and the Office of the Deputy Superintendent of Land Records,

Hatkanangale.

7. The learned Advocate for the Petitioners took us through the facts in the

present Petition which are already set out in paragraph 2 hereinabove. He pointed out

that the development plan under which the said land belonging to the Petitioners was

reserved, was sanctioned on 15th November, 1983. Since the said land was not

acquired within 10 years from the date on which the final development plan came into

force, the Petitioners served a statutory notice dated 2 nd December, 2017 under

Section 127(1) of the said Act, to the Respondent No.2 - Council. Respondent No.2

admittedly failed to acquire the said land within the statutory period of two years. In

the circumstances, as provided under Section 127 of the Act, the reservation of the

said land is deemed to have been lapsed and the said land stood released from the

reservation and became available to the owners/Petitioners for the purpose of

development. However, the Respondents failed to comply with the mandate provided

in sub-Section 2 of Section 127 of the Act i.e. issuing a Notification in the official

gazette notifying the lapsing of the reservation of the said land, thereby compelling the

Petitioners to file the above Writ Petition seeking the reliefs set out in paragraph 1

above.

8. The learned Advocate for the Petitioners relied upon the decision of the

Supreme Court in the case of Girnar Traders & Anr. V/s. The State of Maharashtra &

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Ors.1, Vansada Agricultures Pvt. Ltd., Nashik and Ors. V/s. Nashik Municipal Corporation

and Ors.2, Bombay Salesian Society V/s. State of Maharashtra and Ors. 3 and Mohandas

and Ors. V/s. State of Maharashtra and Ors.4

9. The learned Advocate appearing for the State of Maharashtra - Respondent

No.1 referred to the Affidavit dated 5th February, 2021 filed by the Assistant Director

of Town Planning, Kolhapur and submitted that the validity of the purchase notice

served by the Petitioners and the subsequent action taken by the Respondent No.2 -

Council, towards the acquisition of the said land be ascertained and after taking into

consideration the remarks/say of the Respondent No.2 - Council, this Court may pass

suitable orders as it may deem fit and proper.

10. The learned Advocate appearing for Respondent No.2 - Vadgaon Municipal

Council submitted as follows :

10.1 That after considering the purchase notice served by the Petitioners,

Respondent No.2 - Vadgaon Municipal Council by its letter dated 12 th January, 2018

called upon the Petitioners to submit certain documents in respect of the said land,

which was received by the Respondent No.2 on 19th January, 2018.

10.2 That on 11th January, 2018 the City Engineer of the Municipal Council by an

administrative note, recommended that steps be taken for acquisition of the said land.

1     2007 (7) SCC 555
2     2015 (2) ALL M.R. 31
3     2020 (1) Bom.C.R. 235
4     2020 (3) All M.R. 641

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10.3      In view thereof, the Chief Officer passed an administrative order dated 25th

April, 2018 to place the matter before the Municipal Council's meeting for passing of

an appropriate resolution.

10.4 Since the issue was not decided in the general body meetings dated 1 st June,

2018 and 1st August, 2018 of the Council, the Chief Officer passed an administrative

order (which is at Exhibit R-2 to the Affidavit of Respondent No.2) and decided to

acquire the said land for public purpose.

10.5 That thereafter, Respondent No.2 submitted a proposal to the District

Collector, Kolhapur on 30th September, 2018 and requested to start the acquisition

proceedings immediately.

10.6 That thereafter, the office of the District Collector, Kolhapur by his letter

dated 17th September, 2018 directed Respondent No.2 Council to submit a proposal in

three copies and accordingly, Respondent No.2 submitted a fresh proposal with three

copies on 19th December, 2018.

10.7 That the District Collector, Kolhapur by his order dated 14 th May, 2019

directed the Special Land Acquisition Officer - 11, Kolhapur to initiate the land

acquisition proceedings immediately and in view of the said direction by the District

Collector, Kolhapur, the land Acquisition Officer - 11, directed the Deputy

Superintendent of Land Records, Hatkanangale to submit a joint measurement map by

taking the measurement charges from the Respondent No.2 Council.

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10.8      That the Office of the Deputy Superintendent of Land Records,

Hatkanangale, by their letter dated 20th June, 2019 sought deposit of fees of

Rs.12,000/- for the joint measurement of the said land, which was deposited by the

Respondent No.2 on 25th July, 2019.

10.9 That despite the fees of Rs.12,000/- being deposited by the Respondent

No.2 Council, the Deputy Superintendent of Land Records, Hatkanangale, did not

take steps to carry out joint measurement and therefore, Respondent No.2 Council

vide their letters dated 31st October, 2019, 7th December, 2019 and 5th February, 2020

requested the Deputy Superintendent of Land Records, Hatkanangale to carry out

joint measurement of the said land immediately. The Deputy Superintendent of Land

Records, Hatkanangale, was also informed that in view of the provisions of Section 127

of the Act, the reservation of the said land will lapse causing loss to the government.

10.10 That the Deputy Superintendent of Land Records, Hatkanangale,

issued a notice dated 17th February, 2020 for joint measurement of the said land on 28 th

February, 2020.

10.11 That though the joint measurement was taken but the measurement

map was not submitted for further proceedings by the Deputy Superintendent of Land

Records, Hatkanangale, the District Superintendent of Land Records, by his letters

dated 14th May, 2020 and 25th June, 2020 directed that the measurement map be

submitted.

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10.12          That Respondent No.2 also by its letter dated 29 th December, 2020

requested the Assistant Superintendent of Land Records to submit the measurement

map.

10.13 The District Superintendent of Land Records, Kolhapur by his letter

dated 6th January, 2021 informed the Respondent No.2 that in spite of several

reminders, the Office of the Deputy Superintendent of Land Records, Hatkanangale,

has not submitted a joint measurement map.

10.14 The Respondent No.2 has therefore, commenced the process for

acquisition of the said land within a period of two years from the date of service of

purchase notice as per the provisions of Section 127 of the Act and therefore, the

present Writ Petition filed by the Petitioners be dismissed.

11. We have perused the Writ Petition as well as the affidavits filed by the

parties. We have considered the facts of the present case, the submissions made by

the learned Advocates for the parties and the case law relied upon by the Advocate for

the Petitioners.

12. Chapter VII of the MRTP Act deals with "Land Acquisition". Section 125 of

the MRTP Act deals with "Compulsory acquisition of land needed for purpose of

regional plan, development plan or town planning etc." Section 126 of the MRTP Act

deals with "Acquisition of land required for public purposes specified in plans."

Section 127 of the MRTP Act pertains to "Lapsing of reservations". Section 127 of the

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MRTP Act is relevant for deciding the issues raised in the present Writ Petition and is

therefore reproduced hereunder :

"127. Lapsing of reservations [(1) If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development Plan comes into force [or if a declaration under sub- section (2) or (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect ; and if within twelve months] from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon, the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.

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                    (2)    On     lapsing   of   reservation,   allocation   or

designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette.]"

13. It is an admitted fact that the Respondent No.2 failed and neglected to take

any steps for acquisition of the said land for a period of 34 years from the date of the

final notification dated 15th November, 1983 i.e. the day on which the development

plan of the Vadgaon Municipal Council came into force and by reservation No.7, the

said land of the Petitioners was kept reserved for primary school and playground.

Though the Petitioners issued a purchase notice on 2 nd December, 2017, the

Respondent No.2 failed to take any steps towards commencement of the acquisition.

14. In its recent Judgment in the case of Mohandas vs. State of Maharashtra5, the

Supreme Court has referred to and discussed several Judgments which have

interpreted/analysed Section 127 of the Act. Referring to the question posed in the

Judgment of the Supreme Court in the case of Girnar Traders vs. State of Maharashtra

and others (supra), as to what is required to be done by the Authority on receipt of a

notice under Section 127 of the Act from the owner of land, the Supreme Court

(majority view) has concluded that the steps towards acquisition would really

commence when the State Government permits acquisition, and as a result thereof,

publishes the declaration under Section 6 of the Act. The relevant paragraphs of the

5 2020(3) ALL MR 641 (S.C.)

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Judgment in the Mohandas case are reproduced hereunder :

"16. In Girnar Traders v. State of Maharashtra and others, (2007) 7 SCC 555 ; [2007 ALL SCR 2232], the majority view was that a literal interpretation of Section 127 of the Act would result in injustice. The question, which was posed, actually was what is required to be done by the Authority on receipt of a notice under Section 127 of the Act from the owner of land subjected to restrictions by way of a Development Plan, inter alia. The dissenting Judge, P.K. Balasubramanium, J., took the view that all that is required to be done when a notice is issued under Section 127 of the Act was that the Authority under the Act was to make an application for acquisition under the Land Acquisition Act and nothing more. The learned Judge went on to hold that the Authority cannot set in motion proceeding under the Land Acquisition Act while acting under Section 126(1) of the Act. The majority view, however, was that resorting to the plain meaning of the words would cause palpable injustice. The Court took the view as follows :

"54. ...... If the acquisition is left for time immemorial in the hands of the authority concerned by simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub-section (4) of Section 126; and till then no declaration could be made under Section 127 as regards lapsing of reservation and contemplated

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declaration of land being released and available for the landowner for his utilisation as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the landowner for dereservation. The steps towards commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation.

(Emphasis supplied)

17. Thus, it was concluded that the steps towards acquisition would really commence when the State Government permits acquisition, and as a result thereof, publishes the declaration under Section 6 of the Act. .............."

15. Therefore, only because the Respondent No.2 Council upon receipt of a

purchase notice proceeds to take a decision that the said land will be acquired or pays

measurement fees or carries out measurement of the said land, the same would

certainly not amount to the Municipal Council having taken steps towards

commencement of the acquisition. We are satisfied that such steps / action on the

part of the Vadgaon Municipal Council are only for the purpose of seeking time and to

use it as an excuse to defend the Petition filed against them on the ground that the

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acquisition has lapsed under Section 127 of the Act. We are therefore, convinced that

in the instant case, the Vadgaon Municipal Council not only failed to acquire the land

of the Petitioners reserved under the final development plan, which came into force

from 15th November, 1983, but also failed to take steps towards commencement of the

acquisition within two years from the date of receipt of the purchase notice, resulting

in lapsing of the said reservation.

16. For the above reasons, we hold as follows :

(i) Upon expiry of the period of two years from the date of service of the

Purchase Notice on 26th December, 2017, the reservation in respect of the said land

belonging to the Petitioners is declared to have been lapsed.

(ii) Respondent No.1 shall issue a necessary Notification by publishing an

order in the official gazette notifying that the reservation in respect of the said land of

the Petitioners has lapsed.

(iii) The Writ Petition is accordingly disposed off.

( VINAY JOSHI, J. )                                      ( S.J.KATHAWALLA, J. )




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