Shri. Santosh Ramchandra Patil ... vs State Of Maharashtra Thru ...
2021 Latest Caselaw 5631 Bom

                                                                        W.P.No.14162-2018 (J).doc



Anand                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                               CIVIL APPELLATE JURISDICTION

                                 WRIT PETITION NO. 14162 OF 2018

         1.       Shri Santosh Ramchandra Patil                  )        .Petitioners
                  Adult, Occu : Service                          )
                                                                 )
         2.       Shri Sagar Sudam Patil                         )
                  Adult, Occu : Service                          )
                                                                 )
                  Both R/o. Mandar Building,                     )
                  Tukaram Nagar, Dombivali(E),                   )
                  Taluka - Kalyan, District - Thane.             )

                                  Vs.

         1.       The State of Maharashtra                       )        .Respondents
                  Through its Principal Secretary,               )
                  Urban Development Department,                  )
                  Mantralaya,                                    )
                  Mumbai - 400 043.                              )
                                                                 )
         2.       The Municipal Commissioner                     )
                  Municipal Corporation for the City             )
                  of Kalyan & Dombivali,                         )
                  Having office                                  )
                  Shankarrao Chowk, Kalyan (W),                  )
                  District - Thane.                              )
                                                                 )
         3.       Assistant Director of Town Planning            )
                  Municipal Corporation for the City             )
                  of Kalyan & Dombivali,                         )
                  Having office                                  )
                  Shankarrao Chowk, Kalyan(W),                   )
                  District - Thane.                              )


         Mr. I. A. Khairdi, Advocate, for the Petitioners
         Smt. N. M. Mehra, AGP, for the Respondent No. 1 - State
         Mr. A. S. Rao, Advocate, for the Respondent Nos. 2 & 3

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                                                                   W.P.No.14162-2018 (J).doc



 CORAM                         :     SUNIL P. DESHMUKH &
                                     G. S. KULKARNI, JJ.

 DATE                          :     25.03.2021


 JUDGMENT ( Per Sunil P. Deshmukh, J. )

. Petitioners are before the Court seeking writ of mandamus

under Article 226 of the Constitution of India directing respondents to

consider and sanction plan submitted by petitioners for development of

property bearing Survey No. 61, Hissa No. 1 (part) situated at Ahire,

Dombivali, Taluka - Kalyan, District - Thane falling within the limits of

Kalyan Dombivali Municipal Corporation ( for short 'KDMC' ) in view

of confirmation of purchase notice by the State under order dated

15.07.2013. Petitioners further pray for quashing and setting aside

communication dated 07.07.2018 purportedly refusing to sanction

development plan submitted by them.

2. Petitioners state that KDMC has been constituted with

effect from 01.10.1983. Notification for development plan for area now

within the limits of KDMC had been published in 1996 calling upon

citizens to submit their objections and suggestions. Since petitioners'

land was affected by the proposed reservation for road widening and

play ground, they had submitted objections. It is being referred to that 2 of 15

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their suggestions alongwith others had been accepted by the Town

Planning Committee. However, the State while sanctioning

development plan had dis-regarded the decision of Town Planning

Committee and had retained reservation. The State vide notification

dated 04.04.2012 sanctioned development plan of KDMC in part

limiting the same to Sectors 3 to 7. The development plan had come

into effect from 01.06.2012. Petitioners' land is covered under Sector 5,

reserving a portion of their land for road, garden and playground.

3. Petitioners contend that for more than 17-18 years, they

were deprived of their rights to develop the property due to reservation

over the same. It is contended that the property is prone to

encroachment being situated in close proximity to the Dombivali

Railway Station and petitioners had to have security arrangements, to

preserve their landed property, incurring expenditure. Due to its

proximity to Railway Station, although its value is high yet the market

rate would be unlikely to be fetched because of reservation.

4. Petitioners state that the land had not been acquired

despite reservation over the same and the petitioners were intending to

develop the same, as such, issued notice pursuant to section 49 of the

Maharashtra Regional Town Planning Act (for short 'MRTP' Act) on 3 of 15

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16.01.2013 requesting the Government to purchase / acquire or to

release their property from reservation.

5. In response, petitioners received a letter from the

Respondent No. 3 - the Assistant Director of Town Planning referring

to that out of total area as shown in 7/12 extract of 1590 Sq. mtrs,

262.74 Sq. mtrs area is affected by reservation for road widening and

for the same, the Corporation is ready to sanction TDR as per letter

dated 15.06.2006 and reservation of play ground over the rest of the

area 1327.26 Sq. meters had been requested to be modified to

residential, however, the Government of Maharashtra under notice

dated 04.04.2012 had rejected suggested modification and had

continued reservation for play ground. Under the circumstances, if the

petitioners are ready to handover said land to the Corporation, the

Corporation is ready to grant TDR to the petitioners. Petitioners had

declined the proposal under their letter dated 08.04.2013.

6. The Government / State under its communication dated

19.06.2013 had called upon petitioners and respondents No. 2 & 3 to

attend hearing. Petitioners had requested for an adjournment and an

application had been sent. However, thereafter, no intimation has been

received from the State Government. Subsequently, petitioners had 4 of 15

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addressed a letter to the Principal Secretary (UD) referring to that

there had been no response to the petitioners' request for adjournment

to hearing of the matter, pointing out that notice had been issued

issued under Section 49 of the MRTP Act and a period of six months

thereafter lapsed on 06.07.2013 and thus, in view of Section 49(7), the

notice of petitioners shall be deemed to have been accepted and there

is a deemed confirmation of purchase notice.

7. Subsequently, petitioners wrote to the Deputy Collector,

Kalyan as they had learnt that a proposal for acquisition of the property

of petitioners was made to the District Collector. In response to

aforesaid letter, petitioners received a communication dated

01.05.2014 from the Sub Divisional Officer, Kalyan stating that there

was no proposal received by their office. Petitioners have once again

communicated to respondents that there has been deemed

confirmation of purchase notice in view of the provisions of Section

49(7) of the MRTP Act.

8. It is referred to that for a long time, while KDMC had been

sitting tight over above, the petitioners had applied under the Right to

Information Act on 19.07.2018 seeking details of their application

pursuant to section 49 of the MRTP Act and the decision by the 5 of 15

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government, they received a copy of order dated 15.07.2013 stating

therein that the Government of Maharashtra had allowed the

application of petitioners under Section 49(4) of the MRTP Act

accepting request of petitioners confirming the purchase notice. The

communication dated 15.07.2013 is also endorsed to the

Commissioner, KDMC intimating that from the date of confirmation

order dated 15.07.2013 within one year, acquisition proceedings be

initiated and in case of failure to initiate proceedings, the

responsibility of lapse of reservation over the land would be entirely at

Corporation's end.

9. It is under these circumstances, petitioners are seeking

aforesaid reliefs.

10. In the Affidavit-in-reply by KDMC - respondents No. 2 & 3,

it is contended that the claim of the petitioners about confirmation of

their notice under Section 49 of the MRTP Act and failure of

acquisition within one year is misconceived. KDMC is not in need of

garden / play ground and thus, petitioners were offered compensation

by way of TDR in lieu of surrendering their affected land under

reservation. It is submitted that the Government of Maharashtra under

order dated 15.07.2013 had purportedly confirmed purchase notice 6 of 15

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and had informed the KDMC to take necessary steps. In response, a

proposal dated 14.07.2014 had been submitted to the Collector, Thane

for acquisition of petitioners' land. In turn, the Collector on 18.03.2015

directed the Sub Divisional Officer ( for short 'SDO' ) to process the

application of petitioners. There had been communication by SDO on

16.06.2015 to the respondents instructing them to submit a proposal

under the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013. The SDO has

further communicated on 05.09.2017 to the KDMC instructing to

deposit an amount of Rs. 7,91,51,298.21/- . There is no proper follow

up on the proposal of land acquisition which is pending in the office of

SDO. Though acquisition proceedings were initiated, the same could

not be completed due to lack of availability of funds with the KDMC.

The KDMC will acquire the land as & when the budgetary provision is

made. It is, therefore, being submitted that since there is an application

made by the respondents within one year from the date of purchase

notice, there is no merit in the petition and the same is liable to be

dismissed with costs.

11. Respondent No. 1 has filed affidavit-in-reply referring to

that proposal dated 14.07.2014 has been received at their end only on

22.07.2014.

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12. Mr. Khairdi, learned counsel for the petitioners vehemently

submits the factual aspect as referred to above would show that a

purchase notice had been issued by petitioners on 16.01.2013, in

response to which hearing had been arranged. Said proceeding

culminated into order of the State dated 15.07.2013 confirming the

purchase notice directing the KDMC to take steps for acquisition within

one year i. e. from 15.07.2013. There has been an Affidavit filed on

behalf of the respondent No. 1 stating therein that the same has been

received at their end only on 22.07.2014. There is no compliance of

provisions of law as claimed by respondents - KDMC about application

having been made within one year from the date of purchase notice. It

is incorrect and improper.

13. He submits that despite the confirmation of purchase

notice by the State, the respondent - Corporation is insisting upon to

surrender the land in lieu of TDR. It is being submitted that the

Corporation has encroached upon their land constructing road and

gutter which is illegal.

14. Mr. Khairdi, learned Counsel for Petitioners submits that in

view of confirmation of the purchase notice by the Government of

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Maharashtra under its order dated 15.07.2013, it had been mandatory

for respondent No. 2 to apply for acquisition of the reserved land

within a period of one year and since there has been failure to acquire

the land within the stipulated period, their land stands freed from

reservation.

15. Learned counsel for KDMC, opposes contending that it

would not be a case, wherein it can be said that there is no application

made and that proposal in fact had been issued before expiry of one

year as required. He submits that as such there is due compliance of

provisions, and a proper approach be had looking at surrounding

circumstances.

16. As the matter pertains to proceedings ensued upon a

notice pursuant to section 49, reference to relevant provisions of

Section 49 of the MRTP Act as reproduced hereunder would be

pertinent :

"49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases

[1] Where -

                   (a)     ----------
                   (b)     ----------
                   (c)     ----------
                   (d)     -----------
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                                                                    W.P.No.14162-2018 (J).doc


                           (i)    -----
                           (ii)   -----
                           (e)    -----

the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as "the purchase notice" ) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act.

(2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that Authority and of the State Government, if any, in respect of which notice is given.

(3) On receipt of a purchase notice, the State Government shall forthwith call from the Planning Authority and the Appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition.

(4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub-section (1) are fulfilled, and that the order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard.

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(5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period.

(6) [ * * * * * * * * * * * * * * * * * * * * * * * *]

(7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication of restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan."

17. Pursuant to aforesaid provisions, when purchase notice

has been served and is confirmed within the period specified,

appropriate authority must make an application to acquire the land

within a year from the date of confirmation of notice and if not,

reservation would lapse. In the case of T. Vijayalakshmi v. Town

Planning Member, reported in (2006) 8 SCC 502 and Girnar Traders v.

State of Maharashtra, reported in (2007) 7 SCC 355, it has been

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observed to the effect that, since neither steps have been taken by the

authorities for acquisition of the land nor is the land of the appellant

purchased pursuant to purchase notice nor is allowed to be used for

last more than twenty years, the land will have to be released as the

person / owner cannot be deprived from utilizing his property for an

indefinite period.

18. The factual aspects as referred to above would show that

the purchase notice had been issued by petitioners on 16.01.2013, in

response to which hearing had been arranged. Said proceeding

culminated into order of the State dated 15.07.2013 confirming the

purchase notice dated 16.01.2013 directing the KDMC to take steps for

acquisition within one year. There has been an Affidavit filed on behalf

of the respondent No. 1 referring to that the same has been received at

their end only on 22.07.2014, emanating that the application by the

appropriate authority for acquisition of petitioners' land had been

received after expiry of one year from the date of confirmation of

purchase notice. This has not been refuted on behalf of the KDMC nor

any credible material has been placed on record to evidence that the

proposal had been made before expiry of stipulated period. Although

respondents no.2 and 3 - KDMC propose to refer to that there had

been certain correspondence in furtherance of the application, yet it 12 of 15

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does not appear that any step worth the name has taken place as

would be referable to section 126 of the MRTP Act.

19. Having regard to above, since there does not appear to be

application by appropriate authority to acquire the land within the

time-line as referred to in section 49, Section 49(7) holds sway,

entailing statutory consequence that, reservation, designation,

allotment, indication or restriction on development of the land shall be

deemed to have lapsed and thereupon, the land shall be deemed to be

released from the reservation, or as the case may be, allotment,

indication, restriction and shall become available to the owner for the

purpose of development otherwise permissible in the case of adjacent

land, under the relevant plan.

20. However, it would be imperative to consider that the

Supreme Court has, in a case of Municipal Corporation, Greater

Bombay V/s. Hiraman Sitaram Deorukhkar in civil appeal No.11258 of

2017 decided on 24.08.2017 had considered that it is in public interest

to avoid unnecessary conversion of open spaces to urban uses while the

government authorities are bound to preserve them and to take timely

steps for its protection. In the case of Satish P. Vohra and another V/s.

Municipal Corporation, Greater Mumbai and others decided on 13 of 15

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02.08.2018 (W.P.No.2093 of 2015), the division bench of this court has

observed that after notice if no steps for acquisition are taken within

stipulated period under section 127 of MRTP Act, reservation would

axiomatically lapse. After taking into account aforesaid judgment of

the Apex Court, liberty was given to the planning authority to acquire

property within a period of one year. This decision was followed by

another Division Bench of this Court in M/s. Trimurti Enterprises V/s.

State of Maharashtra and others decided on 11.04.2019 (W.P.No.11452

of 2018, Aurangabad Bench) observing that consequences of inaction

of planning authority to take steps for acquisition of land under

reservation in the plan within stipulated after service of notice are

axiomatic. The reservation is deemed to have lapsed. The land would

be available for the purpose of development as is permissible. In that

case as well, while the reservation had been for playground and the

garden, the same stood lapsed by operation of law, the Division Bench

had considered it appropriate that, the petitioner shall not perform any

activity on said ground for a period of one year and the municipal

corporation / the planning authority may acquire the land within that

period and in case of failure to acquire the land, the land would be

available to the petitioner for use as is permissible.

21. Having regard foregoing discussion, provisions and 14 of 15

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decisions, the reservation over Petitioners' land by operation of law

stands lapsed. The Petition stands allowed setting aside the impugned

communication dated 07.07.2018 with a direction to process

development plan submitted by the petitioners in respect of their land

referred to in the Petition by passing an appropriate order.

22. In the present case also, while the petitioners' land had

been reserved for the purpose of playground, garden and road, the

petitioners may not carry on any activity over the land for a period of

one year and it should be open for the appropriate / planning authority

to acquire the land within a period of one year from date of receipt of

this order and in case of failure to acquire the land within such a

period, the petitioners would be free to use the land in the manner as is

permissible according to the provisions of section 49(7).

23. Rule made absolute in aforesaid terms. Petition disposed

of.

( G. S. KULKARNI, J. ) ( SUNIL P. DESHMUKH, J. )

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