Bombay High Court
Satish Soma Bhole vs The State Of Maharashtra And ... on 5 August, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13930 OF 2019
Satish Soma Bhole,
Age : 65 years, Occu. Business & Agriculture,
R/o. : Tailor House, Shivram Nagar,
Jalgaon, Dist. Jalgaon .. Petitioner
Versus
1] The State of Maharashtra
Through the Secretary
Ministry of Urban Development
Mantralaya, Mumbai - 32
2] The Director of Town Planning,
Maharashtra State, Pune
3] The Land Acquisition Officer, Jalgaon,
Dist. Jalgaon
4] The Collector,
Jalgaon, Dist. Jalgaon
5] Assistant Director, Town Planning,
Municipal Corporation Jalgaon,
Jalgaon
6] Municipal Corporation, Jalgaon,
Through its Commissioner .. Respondents
WITH
WRIT PETITION NO. 14531 OF 2019
1] Anil Vitthal Kolhe,
Age : 58 years, Occu. Agriculture,
R/o : 158 Rampeth Kolhe Wada,
Jalgaon, Dist. Jalgaon
2] Bhaskar Aavasu Kolhe
Age : 79 years, Occu. Agriculture,
R/o : 158 Rampeth Kolhe Wada,
Jalgaon, Dist. Jalgaon
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3] Umesh Dilip Kolhe,
Age : 28 years, Occu. Agriculture,
R/o : 58 Rampeth Kolhe Wada,
Jalgaon, Dist. Jalgaon
4] Jayshri Dilip Kolhe
Age : 32 years, Occu. Household,
R/o : 58 Math Galli Rampeth Kolhe Wada,
Jalgaon, Dist. Jalgaon
5] Malti Dilip Kolhe
Age : 58 years, Occu. Household,
R/o : 58 Kole Wada Rampeth,
Jalgaon, Dist. Jalgaon
6] Yogita Dilip Kolhe @ Yogita Girish Savdekar
Age : 37 years, Occu. Household,
R/o : Plot No. 29, Gat no 78/3-4a-d
Near D N C College Shankarrao Nagar,
Jalgaon, Dist. Jalgaon
7] Rupesh Dilip Kolhe
Age : 41 years, Occu. Agriculture,
R/o : 58 Math Galli Rampeth Kolhe Wada,
Jalgaon, Dist. Jalgaon .. Petitioners
Versus
1] The State of Maharashtra
Through the Secretary
Ministry of Urban Development
Mantralaya, Mumbai-32
2] The Director of Town Planning,
Maharashtra State, Pune
3] The Land Acquisition Officer, Jalgaon,
Dist. Jalgaon
4] The Collector,
Jalgaon, Dist. Jalgaon
5] Assistant Director, Town Planning,
Municipal Corporation, Jalgaon,
Jalgaon
6] Municipal Corporation, Jalgaon,
Through its Commissioner .. Respondents
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WITH
WRIT PETITION NO. 14527 OF 2019
1] Nivrutti Sridhar Kolhe,
Age : 85 years, Occu. Agriculture,
R/o : Plot No.-11 Kolhe Hospital,
Prabhat Colony Chowk, Jalgaon,
Dist. Jalgaon
2] Madhukar Shridhar Kolhe,
Age : 70 years, Occu. Agriculutre,
R/o : Ward No. 23 Gandhinagar Sai Niwas,
Itarsi Hoshangabad Madhya Pradesh-461111
3] Jagadish Pundalik Kolhe,
Age : 63 years, Occu. Agriculture,
R/o : Ganpati Mandir, Javal Bhadli Bk,
Jalgaon, Dist. Jalgaon
4] Govinda Pundlik Kolhe
Age : 60 years, Occu. Agriculture
R/o : Shantai Nivas Juna Khedi Road,
Gopalpura, Jalgaon,
Dist. Jalgaon
5] Ravindra Pundalik Kolhe
Age : 50 years, Occu. Agriculture,
R/o : Shantai Niwas Old Khedi Road,
Behind Kolhe Vidhyalay,
Jalgaon, Dist. Jalgaon .. Petitioners
Versus
1] The State of Maharashtra
Through the Secretary
Ministry of Urban Development
Mantralaya, Mumbai-32
2] The Director of Town Planning,
Maharashtra State, Pune
3] The Land Acquisition Officer, Jalgaon,
Dist. Jalgaon
4] The Collector,
Jalgaon, Dist. Jalgaon
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5] Assistant Director, Town Planning,
Municipal Corporation, Jalgaon,
Jalgaon
6] Municipal Corporation Jalgaon,
Through its Commissioner .. Respondents
...
Mr. A.P. Bhandari, Advocate for petitioner in all WPs
Mrs. V.N. Patil - Jadhav, AGP for the respondents no. 1 to 4
Mr. V.B. Patil, Advocate for the respondents nos. 5 and 6
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 2 AUGUST 2022
PRONOUNCED ON : 5 AUGUST 2022
JUDGMENT (MANGESH S. PATIL, J.) :
Heard.
2. Rule in all these petitions. It is made returnable forthwith.
3. Learned AGP waives service for the respondents
nos. 1 to 4. Mr. V.B. Patil waives service for respondents nos. 5 and 6.
At the joint request of the parties, these matters are being disposed of
finally at the stage of admission.
4. Though the petitioners in all the three petitions are
different, they are claiming the same relief regarding lapsing of
reservation under section 127 of the Maharashtra Regional and Town
Planning Act, 1966 ('MRTP Act'), on similar set of facts, pertaining to
the same reservation, Site no. 13 earmarked for fire-brigade by the
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planning authority - respondent no. 6. To avoid repetition, the petitions
are being disposed of by this common judgment.
5. The facts which are not in dispute, may be summarized
as under :-
The development plan for the area of Municipal
Corporation, Jalgaon - respondent no. 6 was sanctioned by the
Government in two parts; first part was sanctioned on 07-03-2002 and
for the remaining part, it was sanctioned on 10-08-2004 and it came
into force with effect from 01-10-2004. The land bearing different parts
of survey no. 415 belonging to the petitioners, of different area, was
reserved as site no. 13 for fire-brigade.
The petitioners issued purchase notices under section 127
of the MRTP Act on 20-09-2017/08-09-2017/31-08-2017, respectively,
in all the three petitions. In lieu of compensation, the petitioners were
offered TDR but they refused to accept it.
6. The respondent no. 6 corporation then passed a resolution
for acquiring the writ site on 16-12-2007. It forwarded a proposal. The
Special Land Acquisition Officer by communication dated 28-07-2018
called upon the respondent no. 6 to deposit the entire amount of
compensation. However, no steps were taken for issuance of any
notification in terms of section 126 of the MRTP Act read with section
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19 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (''New Land
Acquisition Act).
7. The respondent no. 6 has recently deposited an amount of
Rs.94,38,240/- with the respondent no. 3 - Land Acquisition Officer on
15 July 2022.
8. The learned advocate Mr. Bhandari for the petitioners
would submit that by operation of law and by efflux of time, an
indefeasible right has accrued to the petitioners of claiming that the
reservation has lapsed. The consequences are inevitable and clearly
spelt out by the statute. On admitted facts, since no steps have been
taken within 24 months of receipt of the purchase notices, any
subsequent development and steps taken towards acquisition would
not suffice. Referring to the decision of the Supreme Court in the
matter of Girnar Traders Vs. State of Maharashtra; AIR 2007 SC 3180,
he would submit that the steps contemplated under section 126 of the
MRTP Act would be nothing short of a declaration under section 6 of
the Land Acquisition Act, 1895 ('Old Land Acquisition Act')
corresponding to section 19 of the New Land Acquisition Act.
Irrespective of the intention of the respondent no. 6 - planning authority,
the petitioners cannot be compelled to accept TDR in lieu of the
compensation.
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9. He would further submit that even the compensation has
not been deposited in its entirety though a resolution was passed long
back. Lastly, he would submit that when admittedly no declaration
under section 19 of the New Acquisition Act has been issued, the
reservation has lapsed automatically and this Court cannot extend the
statutory period of 24 months prescribed under section 127 of the
MRTP Act. He would point out that any such attempt to extend the
period would be contrary to the decision of the Supreme Court in the
matter of Laxmikant and others Vs. State of Maharashtra and others;
2022 LiveLaw (SC) 315.
10. Per contra, learned advocate Mr. V.B. Patil for the
respondents nos. 5 and 6 would submit that a larger public interest
needs to be borne in mind. The reservation is for setting up a fire-
brigade station. It is not that nothing has moved since receipt of the
purchase notice. The respondent no. 6 - planning authority has passed
a resolution sanctioning the expenditure. A proposal was forwarded to
the respondent no. 3 - Land Acquisition Officer. He never informed
about the exact amount of compensation to be deposited. A bona fide
attempt was made towards acquisition but it did not fructify for no fault
of the planning authority. The whole purpose of putting up a
reservation for public use would be lost and the petition be dismissed.
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11. At the outset, it is necessary to observe that there is no
dispute as regards the facts. The development plan had come into
force with effect from 01-10-2004 by virtue of section 127 of the MRTP
Act. It was imperative for the planning authority to take steps for
acquisition of the reserved site within 24 months of receipt of the
purchase notices. Though some half-hearted attempts of passing a
resolution, putting up a proposal with the Land Acquisition Officer and
may be depositing some part amount of compensation with the Land
Acquisition Officer as late as on 15-07-2022 have been made,
admittedly, as interpreted by the Supreme Court in the matter of Girnar
Traders (supra), these were only some steps that were taken towards
the acquisition but has been clearly short of issuing a declaration as is
required under section 6 of the Old Land Acquisition Act and section 19
of the New Land Acquisition Act.
12. The observations in paragraph no. 54 and 62 of Girnar
Traders (supra) would be relevant which read as under:-
"54. When we conjointly read Sections 126 and 127 of the
MRTP Act, it is apparent that the legislative intent is to
expeditiously acquire the land reserved under the Town
Planning Scheme and, therefore, various periods have been
prescribed for acquisition of the owners property. The intent and
purpose of the provisions of Sections 126 and 127 has been
well explained in Municipal Corporation of Greater Bombay
Case (supra). If the acquisition is left for a time immemorial in
the hands of the concerned authority 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
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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
declaration of land being released and available for the land
owner for his utilization as permitted under Section 127. Section
127 permitted inaction on the part of the acquisition authorities
for a period of 10 years for de-reservation 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 land owner for
de-reservation. 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.
62. In the present case, the amended regional plan was
published in the year 1991. Thereafter, the steps by making an
application under clause (c) of sub-section (1) of Section 126
for issuance of the declaration of acquisition and the declaration
itself has to be made within the period of one year from the date
of the publication of regional plan, that is, within the period of
one year from 1991. The application under Section 126(1)(c)
could be said to be a step taken for acquisition of the land if
such application is moved within the period of one year from the
date of publication of regional plan. The application moved after
the expiry of one year could not result in the publication of
declaration in the manner provided under Section 6 of the LA
Act, under sub-section (2) of Section 126 of the MRTP Act,
there being a prohibition under the proviso to issue such
declaration after one year. Therefore, by no stretch of
imagination, the step taken by the Municipal Corporation under
Section 126(1)(c) of making an application could be said to be a
step for the commencement of acquisition of the land. After the
expiry of one year, it is left to the Government concerned under
sub-section (4) of Section 126 to issue declaration under
Section 6 of the LA Act for the purposes of acquisition for which
no application is required under Section 126(1)(c). Sub-section
(4) of Section 126 of the MRTP Act would come into operation if
the State Government is of the view that the land is required to
be acquired for any public purpose."
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In view of such a position in law, the consequences are inevitable. For
10 years of finalization of the development plan, steps were not taken
nor were they taken as contemplated in law for 24 months after receipt
of purchase notice under section 127 of the MRTP Act and an
indefeasible right had accrued in the petitioners to claim that the
reservation has lapsed.
13. Allowing any further time to the planning authority to
hereafter pay the balance amount of compensation and get the
declaration under section 19 of the New Land Acquisition Act to be
issued, would tantamount to extending the statutory period of 24
months which, we are afraid, is not permissible in law and more so in
the light of the decision of the Supreme Court in the matter of
Laxmikant (supra).
14. In the matter of Laxmikant (supra), this Court had held that
the reservation had lapsed as no declaration under section 126 of the
MRTP Act was published, but the planning authority was given one
year time to acquire the land relying upon the decision of the Supreme
Court in the matter of Municipal Corporation of Greater Mumbai and
others Vs. Hiraman Sitaram Deorukhar and others; (2019) 14 SCC 411.
Dealing with the issue while setting aside the order of this Court
following were the observations made in paragraphs no. 7 and 9 :-
"7. This Court in Municipal Corporation of Greater Mumbai
held that the authorities have been given a duty to act as a
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cestui que trust (beneficiary of the trust) with respect to public
park and had thus directed to acquire land under the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 within a period of six
months. Such direction was given under Article 142 of the
Constitution of India keeping in view the facts of the case. Such
direction and period for acquisition of land is not a law declared
by this Court which is to be treated as binding precedent for this
Court and the subordinate courts subordinate in terms of Article
141 read with Article 144 of the Constitution. Therefore, once
the Act does not contemplate any further period for acquisition,
the Court cannot grant additional period for acquisition of land.
The land was reserved for a public purpose way back in 2002.
By such reservation, the land owner could not use the land for
any other purpose for ten years. After the expiry of ten years,
the land owner had served a notice calling upon the
respondents to acquire the land but still the land was not
acquired. The land owner cannot be deprived of the use of the
land for years together. Once an embargo has been put on a
land owner not to use the land in a particular manner, the said
restriction cannot be kept open-ended for indefinite period. The
Statute has provided a period of ten years to acquire the land
under Section 126 of the Act. Additional one year is granted to
the land owner to serve a notice for acquisition prior to the
amendment by Maharashtra Act No. 42 of 2015. Such time line
is sacrosanct and has to be adhered to by the State or by the
Authorities under the State.
9. In view thereof, the direction to acquire land within a
period of one year is in fact contravening the time line fixed
under the Statute. Consequently, the direction to acquire the
land within one year is set aside. The appeal is allowed."
As can be seen, the period contemplated being a statutory
period, there is no question of any extension.
15. Consequently, there is no scope for taking any sympathetic
view. Consequences are inevitable and we are merely to spell it out by
allowing the writ petitions.
16. The writ petitions are allowed.
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17. It is declared that the reservations of site no. 13 of the
development plan of Jalgaon city has lapsed.
18. The respondent no. 6 shall now take appropriate steps for
issuing notification for release of the property in terms of sub-section
(2) of section 127 of the MRTP Act within 4 months.
19. Rule is made absolute in the above terms in the above
petitions.
[ SANDEEP V. MARNE ] [ MANGESH S. PATIL ]
JUDGE JUDGE
arp/
