Bombay High Court
Vinodkumar S/O Shirvishnu ... vs The State Of Maharashtra, Thr. ... on 13 July, 2022
Bench: A.S. Chandurkar, Urmila Sachin Phalke
WP 8376-19 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 8376/2019
1. Vinodkumar S/o Shirvishnu Toshniwal,
aged about 57 years, Occ:Business.
2. Shrikant S/o Shirvishnu Toshniwal,
age about 50 years, Occ:Business.
3. Vijay S/o Shirvishnu Toshniwal,
aged about 48 years, Occ:Business.
All R/o Murtizapur Road, Akola, Tq. and District:Akola. PETITIONERS
-VERSUS-
1. The State of Maharashtra,
Through Department of Urban Development,
Mantralaya, Mumbai, through its Secretary.
2. Director, Town Planning,
Tq. and District: Pune.
3. District Collector, Akola,
Tq. and District:Akola.
4. Municipal Corporation, Akola,
Tq. and District:Akola, through its Commissioner. RESPONDENTS
__________________________________________________________________________
Shri Z.Z. Haq, counsel for the petitioners.
Ms N.P. Mehta, Assistant Government Pleader for the respondent nos.1 to 3.
Shri S.V. Sohoni, counsel for the respondent no.4.
CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE ON WHICH ARGUMENTS WERE HEARD : 04TH JULY, 2022.
DATE ON WHICH JUDGMENT IS PRONOUNCED : 13TH JULY, 2022.
JUDGMENT (PER : A.S. CHANDURKAR, J.)
RULE. Rule made returnable forthwith and heard the learned
counsel for the parties.
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2. The question that arises for consideration in this writ petition filed
under Article 226 of the Constitution of India is whether a reservation
pursuant to a Draft Development Plan as published having deemed to
have lapsed under Section 127 of the Maharashtra Regional and Town
Planning Act, 1966 (for short, 'the Act of 1966') could be revived while
publishing the Final Development Plan despite the deeming fiction as
contemplated by Section 127 of the Act of 1966.
3. The facts relevant for considering the answer to the aforesaid
question are that the petitioners claim to be the owners of Field Survey
No.5 admeasuring 6 Hectare 77 R, Field Survey No.15 admeasuring 6
Hectare 05 R and Field Survey No.16 admeasuring 4 Hectare. In the
Development Plan of the city of Akola that came into force on
01.04.1977, Field Survey No.5 was shown to be reserved for 'Playground'
vide Reservation No.93. Since no steps were taken to acquire the said
land in the light of the reservation as proposed, the petitioners on
06.05.1991 issued a notice under Section 127 of the Act of 1966 and
called upon the Municipal Council, Akola (as it was then) through its
Planning Authority to acquire Survey No.5. This notice was received by
the Planning Authority on 07.05.1991 but no further steps in that regard
were taken. On the contrary, on 07.12.1991, the Standing Committee of
the Municipal Council passed a resolution stating therein that since no
steps were taken to acquire the said land, Reservation No.93 was being
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cancelled and conversion of that land for residential use was
recommended. Pursuant thereto on 29.11.1995, the Collector granted
permission for conversion of the aforesaid three lands for non-agricultural
use. The petitioners thereafter gave another notice on 02.08.1995 with
regard to Survey No.16 that had been shown as reserved for housing of
displaced persons vide Reservation No.99A. On the same day, another
purchase notice under Section 127 of the Act of 1966 was also issued for
Survey Nos.5 and 16. These notices were received by the Planning
Authority on 02.08.1995. On 26.10.2004, the Urban Development
Department of the State Government revised the development plan and
issued a notification by which the reservation for Site No.141 which was
reserved for playground was proposed to be deleted vide Excluded Part
No.19 and the land was proposed to be included in the residential zone.
The reservation for Site No.142 being reserved for a Cultural Centre was
also proposed to be deleted vide Excluded Part No.20 for being included
in the residential zone.
4. On 12.03.2015 another notification was published by the Urban
Development Department of the State Government under Section 31(1)
of the Act of 1966. It was stated that in view of the Final Development
Plan the reservation at Site Nos.141 and 142 was retained for
'Playground' and 'Cultural Centre' respectively. According to the
petitioners, in the meanwhile the development of those lands under the
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Maharashtra Gunthewari Developments (Regulation, Upgradation and
Control) Act, 2001 (for short, 'the Act of 2001') was approved. Thereafter
on 10.10.2018, the Commissioner of Akola Municipal Corporation after
its conversion as such informed the Urban Development Department that
though the photocopies of the notice under Section 127 of the Act of
1966 were available the Inward Register with that entry was not available
in the Office of the Municipal Corporation. It was informed that as per
the Final Development Plan dated 12.03.2015 the lands had been
subjected to Reservation Nos.141 and 142. It is in this backdrop that the
petitioners sought a declaration that since the reservation for the
aforesaid lands as shown in the Draft Development Plan had lapsed
pursuant to the notice issued under Section 127 of the Act of 1966 it was
not permissible for the respondents to revive such reservation that had
lapsed so as to deny permission to the petitioners to develop those lands
in accordance with law.
5. Reply has been filed on behalf of the Urban Development
Department as well as the Director of Town Planning and it has been
stated therein that the Development Plan of the City of Akola came into
force on 01.04.1977 and the lands in question were subjected to
Reservation Nos.93 and 99A. It is further stated that after obtaining the
opinion from the Deputy Director of Town Planning, a recommendation
was made by the Assistant Director of Town Planning on 01.11.1995 for
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the proposed layout. The lands were then converted for the non-
agricultural use on 15.10.2005. While sanctioning the modifications in
the Development Plan on 12.03.2015 the requirement of public amenities
was considered and hence it was decided to retain the reservation for the
'playground' vide Site No.141 and 'Cultural Centre' vide Site No.142.
6. The Municipal Corporation has also filed its reply and has relied
upon the Final Development plan of the year 2015 to contend that the
period of ten years as contemplated under the Act of 1966 was yet to
expire and therefore the declaration as sought by the petitioners was
premature. It has been stated that though the lands were under
reservation the proposal given by the petitioners for development under
the Act of 2001 came to be accepted. The Authorities ought to have
stayed their hands in the light of the prevailing reservation. On these
counts it was stated that on 06.06.2015 the sub-division of the land that
was permitted on 13.05.2015 came to be cancelled.
7. The learned counsel for the petitioners submitted that the notice
under Section 127 of the Act of 1966 having been issued on 01.08.1995
and no steps towards acquisition of lands bearing Survey Nos.5 and 16
having been taken with the stipulated period, the said lands were deemed
to have been released from reservation. By publishing the Final
Development Plan on 12.05.2015 it was not permissible for the
WP 8376-19 6 Judgment
respondents to again place those lands under reservation. Since by
operation of the provisions of Section 127 of the Act of 1966 the
reservation in question had lapsed and the lands became available for
development to the petitioners, they were rightly granted permission to
convert those lands for non-agricultural use and thereafter by sanctioning
the residential layout. It was not permissible for the respondents to
revive the reservation that had already lapsed. In that regard the learned
counsel for the petitioners placed reliance on the judgment of the Hon'ble
Supreme Court in Bhavnagar University Versus Palitana Sugar Mill (P)
Ltd. & Others [2003(2) SCC 111] wherein it was held that a right
conferred upon the land owner by one provision of the statute cannot be
taken away by another provision of that statute. He submitted that said
decision has been followed by this Court in Baburao Dhondiba Salokhe
Versus Kolhapur Municipal Corporation, Kolhapur & Another [2003(3)
Mh.L.J. 820], Kishor Gopalrao Bapat & Others Versus State of
Maharashtra & Another [2005(4) Mh.L.J. 466], Kishor Siddheshwar
Wadotkar (Dr.) Versus Director of Town Planning & Others [2007(3)
Mh.L.J. 399] and Madanlal Nathmal Navandhar & Others Versus Sangli,
Miraj & Kupwad Municipal Corporation & Others [2016 SCC Online Bom
4976] to urge that the petitioners are entitled for the declaration as
sought.
WP 8376-19 7 Judgment
8. The learned Assistant Government Pleader for the respondent
nos.1 to 3 submitted that the lands in question were initially shown to be
reserved in the Development Plan dated 01.04.1977. Though notice
under Section 127 of the Act of 1966 was issued the lands were again
subjected to reservation under the Final Development Plan by restoring
such reservation. These reservations were restored keeping in mind
probable development in the future. The Final Development Plan having
been published on 12.05.2015 it was not permissible for the petitioners to
contend that by virtue of their earlier notice the reservation had lapsed.
The learned counsel for the Municipal Corporation also opposed
the prayers made in the writ petition. It was submitted that in light of
Section 31(5) of the Act of 1966 the lands had been subjected to
reservation under the Final Development plan. The period of ten years
from 12.05.2015 was yet to expire. He invited attention to the
communication dated 10.10.2018 to urge that the Inward Register with
regard to receipt of the notice issued under Section 127 of the Act of 1966
was not available. He also submitted on noticing the reservation of the
lands in question the proposal for development under the Act of 2001
ought to have been rejected. The Municipal Corporation had decided to
revoke the permission granted on 30.04.2014 by invoking the power
under Section 51 of the Act of 1966. Similarly on 06.06.2015 the order
granting sub-division also had been cancelled. It was thus submitted that
the petitioners were not entitled for the reliefs as prayed for.
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9. We have heard the learned counsel for the parties at length and we
have perused the documents on record. It is seen that in the
Development Plan of City of Akola the lands in question were subjected to
reservation vide Site Nos.93 and 99A. This reservation affected part of
Survey Nos.5 and 16 as is evident from the notices dated 01.08.1995
issued by the petitioners under Section 127 of the Act of 1966. As
regards Survey No.16 of Mouza Umarkhed, Tahsil and District Akola the
petitioners have stated that under reservation Site No.99A, land
admeasuring about 1 Hectare had been affected. In the other notice also
dated 01.08.1995 with regard to Survey Nos.5 and 16 it has been stated
that land admeasuring 16700 Square Meters has been shown in the 'Pink
Zone' as earmarked for public and semi-public zone. The petitioners by
these notices issued under Section 127 of the said Act called upon the
Municipal Council to purchase the said lands for being used for the
purpose of reservation. It is also to be noted that prior to these notices
the petitioners on 07.05.1991 had issued a similar notice under Section
127 of the Act of 1966 with regard to land bearing Survey No.5 of Mouza
Umarkhed, Tahsil and District Akola. It was stated that the said land was
shown in the Development Plan as reserved Site No.93. This notice has
been received by the Office of the Municipal Council (as it then was) on
07.05.1991. The Standing Committee of the Municipal Council on
07.12.1991 noted that despite the purchase notice issued under Section
127 of the Act of 1966 that land had not been acquired and hence the
WP 8376-19 9 Judgment
reservation had lapsed. It was recommended that permission to convert
the said land for residential use could be granted. On 29.11.1995 the
Collector did grant permission to convert Field Survey Nos.5, 15 and 16
for non-agricultural use.
10. From the aforesaid it is clear that insofar as Survey No.5 is
concerned, notices dated 06.05.1991 and 01.08.1995 had been issued
under Section 127 of the Act of 1966. Insofar as Survey No.16 is
concerned, similar notice was issued on 01.08.1995. These notices bear
the endorsement and stamp of the Municipal Council of having received
the same on 07.05.1991 and 02.08.1995 respectively. In the reply filed
by the Municipal Corporation, there is no denial of the fact that such
notices were indeed served on the Municipal Council. No doubt the
Commissioner of the Municipal Corporation on 10.10.2018 issued a
communication of the Urban Development Department that though photo
copies of the notices under Section 127 of the Act of 1966 were found,
the Inward Register of the year 1995 was not available. In absence of any
specific assertion by the Municipal Corporation that such notices under
Section 127 of the said Act were not received in the Office of the
Municipal Council as it then was, there is no basis to disbelieve the
photocopies of the said notices dated 06.05.1991 and 01.08.1995
alongwith endorsements thereon that are placed on record. On the
contrary, the resolution of the Standing Committee dated 07.12.1991
WP 8376-19 10 Judgment
referring to the purchase notice dated 06.05.1991 fortifies the stand of
the petitioners. It is thus held that the petitioners did serve notices under
Section 127 of the Act of 1966.
11. Having found that the petitioners had issued notice under Section
127 of the Act of 1966 the deeming fiction as contemplated by Section
127(1) of the Act of 1966 on the expiry of period of six months as the
provision then stood would operate. Insofar as the notice dated
06.05.1991 relating to Survey No.5 is concerned the deeming fiction
would operate on expiry of six months from the service of that notice on
the Municipal Council. The notice was served on 07.05.1991. Similar is
the case with regard to Survey Nos.5 and 16 and said reservation would
lapse on expiry of period of six months from 02.08.1995 when the said
notices were served on the Municipal Council. By virtue of the said
deeming fiction as contemplated by Section 127(1) of the Act of 1966 the
lands stood released from reservation and became available for
development as otherwise permissible in the case of adjoining land under
the Development Plan. On such legal fiction operating the aspect to be
considered is whether the Planning Authority could have again shown the
said lands to be reserved under the Revised Development Plan. We find
that the Division Bench of this Court in Baburao Dhondiba Salokhe
(supra) has considered this issue and after referring to the judgment of
the Hon'ble Supreme Court in Bhavnagar University (supra) has held that
WP 8376-19 11 Judgment
the provisions of Section 38 of the Act of 1966 cannot be read to mean
that a substantial right conferred upon the owner of the land of the
person interested under Section 127 of the Act of 1966 could be taken
away. Section 38 did not envisage that despite the reservation having
lapsed under Section 127 of the Act of 1966 the same would
automatically revive on publication of a Revised Draft Development Plan
published thereafter. In that case the land reserved for the purpose of
Garden had lapsed in the year 1992 and it was held that such reservation
would not revive after the Revised Final Development Plan was
sanctioned in the year 1999. This decision has been thereafter
consistently followed in Kishor Gopalrao Bapat & Others, Kishor
Siddheshwar Wadotkar and Madanlal Nathmal Navandhar & Others
(supra). It is thus clear that when the land reserved in the Development
Plan is not acquired for a period of more than ten years from that plan
coming into force and notice under Section 127 having been issued, the
reservation would lapse on the expiry of the period prescribed and any
subsequent revision of the Development Plan would not revive or extend
such reservation that has already lapsed.
12. The learned counsel for the Municipal Corporation sought to rely
upon the decision in Prakash Rewadmal Gupta Versus Lonavala
Municipal Council & Others [2002(1) All MR 993] to urge that lapsing of
reservation under Section 127 of the Act of 1966 cannot preclude the
WP 8376-19 12 Judgment
Authorities while reviving the plan and exercising power under Section 38
of the Act of 1966 to reserve the same for the same or any other public
purpose. Though the said decision does support the stand of the
Municipal Corporation it is to be noted that the Hon'ble Supreme Court in
Prakash R. Gupta Versus Lonanvala Municipal Council [2009(3) Mh.L.J.
1 (SC)] has reversed the said decision of this Court referred to by the
learned counsel. It is thus obvious that the legal position in that regard
now stands crystallized and it would not be possible to accept the
contention raised by the learned counsel for the Municipal Corporation
that it was permissible for the Planning Authority to reserve the very same
lands in the Final Development Plan ignoring the lapsing of the
reservation under Section 127(1) of the Act of 1966.
13. We may note that the learned counsel for the Municipal
Corporation urged that the petitioners failed to obtain a declaration as
regards lapsing of the reservation pursuant to the notices dated
06.05.1991 and 01.08.1995. Though it is true that the petitioners did not
seek any declaration of the lands having been de-reserved by virtue of the
deemed fiction, it cannot be ignored that Section 127(1) of the Act of
1966 contemplates a deeming legal fiction. On failure on the part of the
Planning Authority or the concerned Authority of acquiring such lands or
failing to take steps for commencement of acquisition, the lands in
question are deemed to be released from such reservation. If the deeming
WP 8376-19 13 Judgment
fiction is statutorily contemplated and recognized coupled with a duty
being cast on the Government to notify such lapsing, it would not befit
the Planning Authority to insist upon such land owner to seek a
declaration in that regard. For what is contemplated by the Statute ought
to be complied with in accordance with that Statute. This is clear from
the fact that under Section 127(2) of the Act of 1966 it is the duty of the
State Government to notify such lapsing of reservation by having an order
published in the official gazette. Section 127(2) of the Act of 1966 reads
as under:-
"127. (1) ........
(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 Official Gazette."
On a plain reading of this provision it is more than clear that the
consequence of operation of the deemed fiction resulting in release of the
land from reservation, allotment or designation is required to be notified
by the State Government by publishing such order in the official gazette.
Section 127(2) of the Act of 1966 thus makes it more than clear that on
the reservation having deemed to have lapsed, the statute itself requires
the Government to notify the same. Many a times on failure of the State
Government to notify such lapsing that the land owners are required to
approach the Court of law. Once the deeming fiction contemplated under
Section 127(1) of the Act of 1966 on service of a valid notice and expiry
WP 8376-19 14 Judgment
of the statutory period prescribed operates, the Statute itself requires the
Government to notify lapsing of such reservation under Section 127(2) of
the Act of 1966. At least such contention cannot be permitted to be
raised by the Planning Authority on account of whose inaction the
reservation has lapsed.
14. This conclusion as recorded is fortified by two decisions of the
Hon'ble Supreme Court to which reference can be made. In Godrej and
Boyce Manufacturing Company Limited Versus State of Maharashtra &
Others [(2015) 11 SCC 554], the land in question was reserved
under sanctioned development plan in 1991 for laying down additional
railway tracks. On completion of period of ten years the land owner
issued a purchase notice under Section 127 of the Act of 1966 on
04.09.2002. On expiry of the period of six months as was then prescribed
the reservation of the said land was deemed to be released. Thereafter
the Urban Development Department of the State Government issued a
notification on 24.05.2006 under Section 37(1) of the Act of 1966 and
proposed modification to the development plan by deleting 'railway
reservation' and adding 'reservation for D.P. road'. This notification was
challenged by the land owner and while considering the same the
Hon'ble Supreme Court held that it was not open for the State
Government to delete the earlier reservation from railway use and modify
it for reservation for D.P. road especially after the expiry of the initial
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period of ten years and thereafter the notice period of six months under
Section 127 of the Act of 1966. This was for the reason that the land
owner had acquired a valuable statutory right upon the land as the
reservation for the same had lapsed long back. On such lapsing, the same
would enure to the benefit of the land owner and it would not be open
for the State Government to propose modification of the development
plan.
Recently, in Kolhapur Municipal Corporation & Others Versus
Vasant Mahadev Patil (Dead) through legal representatives & Others
[(2022) 5 SCC 758] the Hon'ble Supreme Court held that when by
operation of law the reservation is deemed to have lapsed under Section
127(1) of the Act of 1966 the reservation lapses for all purposes and for
all times to come. In the said decision, the Hon'ble Supreme Court was
further pleased to observe that on the deemed lapsing of such reservation
under Section 127(1) of the said Act no writ of mandamus can be issued
by the High Court to direct acquisition of that land and pay compensation
to the land owners as on the lapse of such reservation the land becomes
free and the land owners can use the land as if there was no reservation
but subject to the provisions of the Act of 1966.
15. In the light of what has been held hereinabove, we find that the
petitioners are entitled for the relief of a direction to permit them to
develop that part of the land that was subjected to reservation and notice
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under Section 127(1) of the Act of 1966 was issued. Accordingly, it is
held that in terms of notice dated 06.05.1991 issued with regard to land
bearing Survey No.5 of Mouza Umarkhed, Tahsil and District Akola and
notice dated 01.08.1995 issued with regard to Survey Nos.5 and 16 being
affected to the extent of 16700 Square Meters that was shown reserved
for public and semi-public zone under Site No.93, the reservation is
deemed to have lapsed. Similarly, in terms of the notice dated
01.08.1995 issued with regard to Survey No.16 for land admeasuring
about 1 Hectare that was reserved under Site No.99A, the reservation is
deemed to have lapsed. It is declared that the lands of the petitioners to
the extent they were affected by Reservation Nos.93 and 99A stand de-
reserved. The Municipal Corporation as well as the Planning Authority
shall indicate the exact area from Survey Nos.5 and 16 that was subjected
to Reservation Nos.93 and 99A and that area shall be de-reserved on
account of lapsing of the reservation. On furnishing such information to
the Urban Development Department within a period of eight weeks from
today, the Urban Development Department shall issue notification in that
regard as required by Section 127(2) of the Act of 1966 within a period of
eight weeks of receipt of such intimation from the Municipal Corporation.
Consequentially, the Final Development Plan of the year 2015 shall not
preclude the aforesaid exercise and it would continue to operate with
regard to other lands excluding EP-19 and EP-20.
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16. Rule is made absolute in aforesaid terms with no order as to costs.
(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.)
APTE
Signed By: Digitally signed
byROHIT DATTATRAYA
APTE
Signing Date:14.07.2022 10:20
