Bombay High Court
Santu Sukhdeo Jaibhave And Ors vs Nashik Municipal Corporation And ... on 18 November, 2022
Bench: R.D. Dhanuka, Kamal Khata
1/33 WP-8756.18.odt
Digitally
signed by
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
SANDHYA
SANDHYA BHAGU
BHAGU WADHWA
WADHWA Date:
2022.11.18
17:24:10
CIVIL APPELLATE JURISDICTION
+0530
WRIT PETITION NO.8756 OF 2018
1. Santu Sukhdeo Jaibhave, ]
2. Balu Sukhdeo Jaibhave, ]
3. Pundlik Sukhdeo Jaibhave, ]
4. Ramdas Sukhdeo Jaibhave, ]
5. Tanaji Sukhdeo Jaibhave, ]
6. Dnyaneshwar Sukhdeo Jaibhave, ]
7. Samadhan Sukhdeo Jaibhave, ]
8. Smt. Laxmibai Sukhdeo Jaibhave, ]
No.5 for himself and as Power of ]
Attorney Holder for all the petitioners. ]
All are R/o. S. No.898/1, Pathardi ]
Phata, Nashik, Dist. Nashik ]
] ... Petitioners
Versus
1. Nashik Municipal Corporation, ]
A Statutory Corporation under the ]
Provisions of The Maharashtra ]
Municipal Corporation Act having its ]
office at: Rajiv Gandhi Bhavan, ]
Sharnapur Road, Nashik ]
2. The Commissioner, ]
Nashik Municipal Corporation, having ]
its office at: Rajiv Gandi Bhavan, ]
Shrnapur Road, Nashik. ]
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3. The Assistant Director, Town Planning ]
Department Nashik Municipal ]
Corporation having its office at Rajiv ]
Gandhi Bhavan, Sharnapur Road, ]
Nashik. ]
4. The Collector, Nashik. ]
5. The State of Maharashtra. ] ...Respondents
ALONG WITH
WRIT PETITION NO.8757 OF 2018
Dagu Punja Gaikwad ]
Age: 67 Years, Occ : Agriculurist, ]
Through his Power of Attorney Holder ]
Ramesh Dagu Gaikwad ]
Age: 41 Years, Occ: Agri & Business ]
R/o. Gaikwad Bungalow, Gaikwad ]
Mala, Artillery Centre Road, Nashik Rd. ]
]
]
] ... Petitioner
Versus
1. Nashik Municipal Corporation, ]
A Statutory Corporation under the ]
Provisions of The Maharashtra ]
Municipal Corporation Act having its ]
office at: Rajiv Gandhi Bhavan, ]
Sharnapur Road, Nashik ]
2. The Commissioner, ]
Nashik Municipal Corporation, having ]
its office at: Rajiv Gandi Bhavan, ]
Shrnapur Road, Nashik. ]
3. Assistant Director, Town Planning ]
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Department Nashik Municipal ]
Corporation having its office at Rajiv ]
Gandhi Bhavan, Sharnapur Road, ]
Nashik. ]
4. The State of Maharashtra Through the ]
Collector, Nashik. ] .. Respondents
ALONG WITH
WRIT PETITION NO.8758 OF 2018
1. Tukaram Bhau Jaibhave, ]
2. Dattu Tukaram Jaibhave, ]
3. Rajendra Tukaram Jaibhave, ]
No.3 for himself and as Power of ]
Attorney Holder for all the petitioners. ]
All are R/o. S. No.898/3, Pathardi ]
Phata, Nashik, Dist. Nashik ]
] ... Petitioners
Versus
1. Nashik Municipal Corporation, ]
A Statutory Corporation under the ]
Provisions of The Maharashtra ]
Municipal Corporation Act having its ]
office at: Rajiv Gandhi Bhavan, ]
Sharnapur Road, Nashik ]
2. The Commissioner, ]
Nashik Municipal Corporation, having ]
its office at: Rajiv Gandi Bhavan, ]
Shrnapur Road, Nashik. ]
3. The Assistant Director, Town Planning ]
Department Nashik Municipal ]
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Corporation having its office at Rajiv ]
Gandhi Bhavan, Sharnapur Road, ]
Nashik. ]
4. The Collector, Nashik. ]
5. The State of Maharashtra. ] .. Respondents
ALONG WITH
WRIT PETITION NO.9000 OF 2018
1. Smt. Devubai Sakharam Jaibhave, ]
2. Dagu Sakharam Jaibhave, ]
3. Ashok Sakharam Jaibhave, ]
4. Bhima Sakharam jaibhave, ]
5. Mrs. Sitabai Ramchandra Sanap, ]
6. Smt. Shantabai Bhivaji Dhakne, ]
7. Smt. Muktabai Baban Landge, ]
8. Smt.Leelabai Baburao Sonawane ]
No.4 for himself and as Power of ]
Attorney Holder for all the petitioners. ]
All are R/o. S. No.898/2, Pathardi ]
Phata, Nashik, Dist. Nashik ]
] ... Petitioners
Versus
1. Nashik Municipal Corporation, ]
A Statutory Corporation under the ]
Provisions of The Maharashtra ]
Municipal Corporation Act having its ]
office at: Rajiv Gandhi Bhavan, ]
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Sharnapur Road, Nashik. ]
2. The Commissioner, ]
Nashik Municipal Corporation, having ]
its office at: Rajiv Gandi Bhavan, ]
Shrnapur Road, Nashik. ]
3. The Assistant Director, Town Planning ]
Department Nashik Municipal ]
Corporation having its office at Rajiv ]
Gandhi Bhavan, Sharnapur Road, ]
Nashik. ]
4. The Collector, Nashik. ]
5. The State of Maharashtra. ] .. Respondents
...
Mr. Vivek Vijay Salunke a/w Mr. Ajinkya Jaibhave, Ms.
Anusha Pradhan, Mr. Shubham Budhvant i/b Mr.
Prakash J Ahuja, for the petitioners in all writ petitions.
Ms. Chaitrali A. Deshmukh, for respondent Nos.1 to 3 in
WP/8756/18, WP/8758/18 and WP/9000/18.
Mr. Murlidhar A. Patil, for respondent Nos.1 to 3 in
WP/8757/18.
Mr. A. A. Alaspurkar, A.G.P. for respondent No.4-State
and in WP/8756/18, WP/8758/18 and WP/9000/18 and
for respondent No.4-State in WP/8757/18.
...
CORAM : R.D. DHANUKA &
KAMAL KHATA, JJ.
RESERVED ON : 21st SEPTEMBER, 2022.
PRONOUNCED ON : 18TH NOVEMBER, 2022.
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JUDGMENT: - [Per Kamal Khata, J.]
1. Rule. Rule made returnable forthwith. Learned
counsel for respondents waive service.
2. The present four Writ Petitions are filed under
Article 226 of the Constitution of India for a Writ of
mandamus for a declaration that the reservation of (i)
agricultural property being Survey No.898/1 admeasuring
02 Hectares, 48 Ares equivalent to 25100 sq.mtrs. (W.P.
No.8756/2018) (ii) agricultural property being Survey
No.898/2 admeasuring 02 Hectares, 20 Ares equivalent
to 22,000 sq.mtrs. (W.P. No.9000/2018) (iii) agricultural
property being Survey No.898/3 admeasuring 02
Hectares, 20 Ares equivalent to 22,000 sq.mtrs. (W.P.
No.8758/2018) (iv) immovable non-agricultural property
being Survey No.33/2+3 admeasuring 1500 sq.mtrs.
stands lapsed, as no steps have been taken by the
respondents within a period of 24 months from the date
of Purchase Notice given to Respondent No. 1 under
Section 127 of the Maharashtra Regional Town Planning
Act (for short, "MRTP Act") and, consequently, permit
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them to develop their lands.
BRIEF FACTS :
3. Since the facts of W.P. No.8756/2018, W.P.
No.9000/2018 and W.P. No.8758/2018 are similar, for
convenience, the facts in the first petition have been
adverted to. The petitioners are the owners of the
agricultural property bearing Survey No. 898(1)
admeasuring 02 H. 48 Ares equivalent to 25,100 sq. mtrs
assessed at Rs.05.75paise situated in Nashik and within
the limits of Nashik Municipal Corporation (for short "the
writ land"). The development plan for Nashik city
prepared under Section 26 of the MRTP Act was
sanctioned as per Section 31 of MRTP Act on 20 th June
1993 and came into effect on 16 th November 1993. An area
of 12,878.00 sq.mtrs. came to be reserved for "Housing
for Dishoused" (HD) vide Reservation No.390, which was
published in the Government Gazette on 30th September
1993. The writ land is under Reservation No.390 since
16th November 1993.
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4. It is the case of the petitioners that they could not
develop their land on account of the reservation for a
period of 10 years i.e. upto 16th November 2003, within
which period, the respondents were required to acquire.
Since, even after the expiry of the statutory period, the
respondents failed to acquire or even take steps towards
it, the petitioners through their Advocates letter dated 14 th
July 2015 issued a Purchase Notice under Section 127 of
the MRTP Act, duly received by the Respondent No.1 on
15th July 2015, calling upon the respondent No.1 to
acquire the writ land within the statutory period, failing
which the reservation would stand lapsed. However, by an
Ordinance dated 29th August 2015, respondent No. 4
extended the Purchase Notice period from 12 months to
24 months by amending provision of sub-section (1) of
Section 127 of the MRTP Act.
5. In response to the Purchase Notice, respondent No.1
offered Transferable Development Rights (TDR)
certificate instead of compensation, provided the
petitioners were willing to handover possession of the writ
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land. The petitioners refused to accept the proposal of
respondent No. 1 in its letter dated 6 th October 2015.
Being aggrieved by the continuation of reservation on the
writ land in spite of objections raised before the
competent authority, they filed the present petition on
18th January 2018.
6. A reply is filed by one Chandrashekhar Bhaguji Aher
on behalf of respondent No.3 on 20 th November, 2021. It
is the case of the respondents that in pursuance to the
Purchase Notice dated 14th July 2015 under Section 127 of
the MRTP Act a response was given by respondent Nos.1
to 3 by its letter dated 3 rd July 2015 whereby the
petitioners were asked for certain documents, which were
required to prove their ownership in respect of the writ
property. By the said letter, the Municipal Corporation
had also offered Transferable Development Rights (TDR)
as compensation for the writ property.
7. The petitioners in response to the letter dated 3 rd
July, 2015, refused to submit any further documents and
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also refused to accept TDR as compensation for the writ
property. It is the case of the respondents that the
Municipal Corporation submitted its proposal dated 30 th
July, 2016 to the Collector, Nashik to initiate the
acquisition proceedings in respect of the writ property
which is pending with the Collector, Nashik. The
Municipal Corporation had also submitted documents
from time to time, as demanded by the Collector, Nashik
for the acquisition proceedings on 11th October 2016.
8. A Draft Revised Development Plan for the city of
Nashik was implemented by issuing Notification dated 9 th
January 2017 in respect of the writ land and was shown
under reservation No.205 for the purpose of 'Public
Housing'. It is the case of the respondents that they had
rejected the petitioners' proposal for development
submitted by them on 16th August 2017 on account of the
land acquisition proposal No.16 of 2006 which was
pending before the Collector, Nashik. It is the case of the
respondents that the petitioners had filed an application
for development after the second development plan came
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into force and hence, the reservation of the land has not
lapsed.
9. It is the express case of the respondents that in view
of the judgment passed by this Court at Aurangabad
Bench in Writ Petition No.5938 of 2020 whereby it was
held that once compensation of TDR are offered to the
land owner, the planning authority need not follow the
procedure under sub-section 2 of Section 126 of the
MRTP Act and by offering compensation of TDR within
24 months from the date of receipt of the Purchase
Notice, the respondents would deemed to have
commenced the acquisition of the reserved land.
10. It is the case of the respondents that in the present
case, the Purchase Notice was issued by the petitioners on
14th July, 2015 and within two months thereof by letter
dated 3rd September, 2015, the Municipal Corporation
offered Transfer Development Rights (TDR) to the
petitioners and, consequently, it would amount to the
commencement of acquisition.
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11. Mr. Salunkhe, on behalf of the petitioners submitted
that the writ land was reserved by reservation No.390
from 16th November, 1993 and the said land is still under
reservation, till date. He submitted that the respondents
have failed to initiate steps towards acquisition of land for
a period more than 10 years, since the land was brought
under reservation. He submitted that inspite of the
Purchase Notice dated 14th July, 2015 which was received
by the respondent No.1 - Corporation on 15 th July, 2015,
respondent No.1 failed to take steps for acquisition of the
said land in accordance with mandate of Section 127 of
the MRTP Act.
12. It is submitted that although the period of 12
months was extended to 24 months vide Ordinance dated
29th August 2015, respondent No.1 - Corporation had
failed and neglected to take steps towards acquisition of
the land. He submitted that response of the Municipal
Corporation dated 3rd September 2015 to the Purchase
Notice dated 14th July 2015, whereby the Municipal
Corporation offered to grant/allot/award the Transfer
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Development Rights (TDR) would not by itself mean that
respondent No.1 - Corporation had taken steps towards
acquisition of the land. He further submitted that the
communication between respondent No.1 - Corporation
and the Commissioner on 30th April 2016 or Circular
dated 21st March 2005 referring to the proposal for
acquisition to the Standing Committee of the Corporation
for its sanction within a period of 5 months from
presenting proposal, would also not constitute the steps
for the process of acquisition as contemplated under
Section 127 of the MRTP Act.
13. Learned counsel pointed out several lacune such as,
no signatures were made on the attested copies, no seal of
the Corporation was affixed upon the agreement, dates
were not mentioned in all the places of the proposal, only
one Standing Committee member's signature appeared on
the Resolution of the Standing Committee of the
respondent no.1-Corporation, found in the proposal
submitted by respondent No.1 - Corporation, which led to
the Collector, Nashik issuing a letter to respondent No.1 -
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Corporation who were asked to comply the requisitions
mentioned therein, at the earliest. It is submitted that by
itself would not mean that they have taken steps towards
acquisition as contemplated under Section 127 of the
MRTP Act.
14. In support of his contentions, he referred to the
following judgments :
(1) Ashok Karbhari Borade v. State of Maharashtra1
(2) Hasina Kudbuddin Shaikh & Ors. v. Karad Municipal
Council & Ors.2
(3) Uday Madhavrao Patwardhan & Ors. v. Sangli, Miraj
& Kupwad Municipal Corporation & Ors.3
(4) Amuksidha Shrikant Majge & Anr. v. The
Commissioner, Sangli, Miraj & Kupwad Municipal
Corporation, Sangli & Ors.4
(5) Baburao Dhondiba Salokhe v. Kolhapur Municipal
Corporation, Kolhapur & Anr.5
(6) Hirabai w/o Shrikrishna Chiddarwar & Ors. v. State of
Maharashtra & Anr.6
(7) Vinodkumar & Ors. v. State of Maharashtra, Through
1 2018 SCC Online Bom. 1402
2 2019(1) Mh.L.J.
3 2015 SCC OnLine Bom 659.
4 2018 SCC OnLine Bom 2844
5 2003(3) Mh.L.J. 2844
6 2016(4) MH.L.J. 820
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Department of Urban Development & Ors.7
(8) Girnar Traders v. State of Maharashtra & Ors. 8 and
(9) Godrej & Boyce Manufacturing Company Limited v.
State of Maharashtra & Ors.9
(10) Bhavnagar University v. Palitana Sugar Mills (P)
Ltd. & Ors.10
15. Per contra, Ms. Chaitrali Deshmukh, on behalf of
respondent Nos.1 to 3 submitted that the development
plan for Nashik, came into force on 16 th November, 1993
and in the said plan part of Survey No.898/1 admeasuring
12,878.00 sq.mtrs. the writ land was shown as reserved
for the purposes of 'Housing for Dishoused" as
Reservation No.390. She submitted that after the
Purchase Notice dated 14th July, 2015 was issued by the
petitioners under Section 127 of the MRTP Act, the
respondent Nos.1 to 3 and the Corporation by their letter
dated 3rd September 2015 had asked for certain
documents, which were required to prove the ownership
of the petitioners in respect of the said property.
7 2022 SCC OnLine Bom 1465
8 2007 SCC OnLine SC 1053
9 2015 SCC Online SC 554
10 2003 (2) SCC 111
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16. It is submitted that the Corporation had also offered
to compensate the petitioners by granting them TDR for
their writ lands. She submitted that the petitioners had
refused to give any further documents and also
communicated their unwillingness to accept the TDR
compensation for the writ property. She submitted that
on 30th July, 2016 they had also submitted a proposal to
the Collector, Nashik bearing Proposal No.16 of 2006 to
initiate the acquisition proceedings in respect of the writ
land, which is pending with the Collector, Nashik. The
Municipal Corporation had also submitted the documents
to the Collector, Nashik from time to time and, lastly, on
11th October, 2016.
17. It is submitted that on 9th January 2017, the Draft
Revised Development Plan for the city of Nashik was
implemented by issuing notification and the writ land was
shown as Reservation No.205 for Survey No. 898/1
admeasuring 12,878.00 sq.mtrs. for the purpose of
"Public Housing". She further submitted that the proposal
submitted by the petitioners with the layout plan dated
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16th August 2017 was rejected by the Municipal
Corporation on 16th August 2017 on the ground that Land
Acquisition Proposal No.16 of 2006 was pending before
the Collector, Nashik.
18. It is submitted that the action on the part of the land
owner under Section 127 of the MRTP Act must be
anterior in point of time to the publication of the revised
plan, and delayed action on the part of the land owner i.e.,
after the revised plan has been finalized and published,
will not invalidate the reservation allotment or
designation of land continued in the revised plan. She
accordingly submitted that the reservation of the writ
land had not lapsed. In support of her contention, she
relied upon the judgment of this Court in the case of
Prafulla C. Dave & Ors. v. Municipal Commissioner, Pune
& Ors.11 and the judgment of the Supreme Court in the
case of Prafulla C. Dave & Ors. v. Municipal
Commissioner & Ors.12
11 2008(3) Mh.L.J.
12 (2015) 11 SCC 90.
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19. Mr. M. A. Patil, on behalf of respondent Nos.1 to 3
in Writ Petition No.8757 of 2018 reiterated the
submissions made by Ms. Deshmukh, advocate for
respondent Nos.1 to 3 in Writ Petition No.8756 of 2018,
Writ Petition No.8758 of 2018 and Writ Petition No.9000
of 2018. In addition to the judgments cited by Ms.
Deshmukh, he relied upon the judgment in the case of
Chhabildas v. State of Maharashtra & Ors. 13 in support of
the contention raised by Ms. Deshmukh.
20. Mr. Patil submitted that in the present case, the
Purchase Notice was issued on 14th July, 2015 whereas,
the Revised Draft Development Plan was prepared on 21 st
May, 2015 and published in the Government Gazette on
4th June, 2015 which are prior to the Purchase Notice. He
submitted that on 9th January, 2017 the Draft Revised
Development Plan was sanctioned by the Government.
21. It is submitted that in view of the fact that the
Purchase Notice was issued after the date of publication of
the Revised Draft Development Plan but before it was
13 (2018) 2 SCC 784
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sanctioned by the Government as the New Development
Plan, the Purchase Notice would not be a valid notice and
cannot be considered. It is, therefore, submitted that the
lapsing has not been taken place. He submitted that the
present case was accordingly different from the facts of
Trilok Singh Pahlajsingh Rajpal v. Municipal Corporation
for Greater Mumbai & Ors.14 which this Court had
considered recently.
REASONS AND CONCLUSIONS
22. Question that arises for consideration of this Court
is whether the purchase notice issued by the petitioners
subsequent to the date of the Draft Revised Development
Plan for the city of Nashik would be a valid notice or not
or the petitioners were required to again wait for expiry of
10 years from the date of the Draft Revised Development
Plan for the city of Nashik and then issue a fresh notice
and then if no steps would be taken by the respondents
within the time prescribed, the reservation in respect of
the writ land would lapse at that stage or not.
14 Judgment dated 16/09/2022 in Writ Petition No.2450 of 2016
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23. It is not in dispute that the writ land was shown for
a public purpose in the development plan for Nashik
prepared under Section 26 of the MRTP Act which came
into effect on 16th November 1993 and came to be
reserved for "Housing for Dishoused." The respondents
did not take any steps to acquire the said plot for a period
more than 10 years as contemplated under the
provisions of the MRTP Act. The petitioners had
admittedly issued a purchase notice on 14 th July 2015. It
is also not in dispute that in the Revised Draft
Development Plan published in the Government Gazette
on 4th June, 2015, the writ land once again is shown for
public purpose. The purchase notice was issued however,
on 14th July 2015.
24. It is not in dispute that the said Draft Revised
Development Plan was implemented by issuing
Notification dated 9th January 2017 in respect of the
writ land and was shown under the reservation No. 205
for the purpose of 'Public Housing'.
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25. The respondents have not disputed that the
purchase notice was issued by the respondents on 14 th
July 2015 i.e. prior to the notification issued on 9th
January, 2017 whereby the Draft Revised Development
Plan was implemented. We are not inclined to accept the
submission made by the learned counsel for the
respondents that a purchase notice under Section 127 of
the MRTP Act could not have been issued after the Draft
Revised Development Plan was published though
admittedly not sanctioned. In our view, the Draft
Revised Development Plan cannot be elevated to the
status of a final sanctioned plan under Section 31 of the
MRTP Act.
26. Under Section 26 of the MRTP Act, a procedure is
prescribed for preparation and publication of notice of
Draft Development Plan. Under Section 28 of the
MRTP Act, any person is entitled to raise objections and
suggestions relating to Draft Development Plan within
the time prescribed to the Planning Authority. Such
objections or suggestions that are forwarded to the
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Planning Authority for consideration may cause
modification or change of plan. A procedure is prescribed
under Section 31 of the MRTP Act for sanctioning the
Draft Development Plan. Under Section 31(6) of the
MRTP Act, a Development plan which has come into
operation shall be called the "final Development Plan"
and shall, subject to the provisions of the said Act, be
binding on the Planning Authority.
27. Under Section 38 of the MRTP Act, the Planning
Authority is empowered to revise the Development Plan
at least once in 25 years from the date on which a
Development Plan has come into operation, and where a
Development Plan is sanctioned in parts, a Planning
Authority may revise the Development Plan, either
wholly, or the parts separately, after carrying out, if
necessary, a fresh survey and preparing an existing land-
use map of the area within its jurisdiction. The
provisions of Sections 22 to 28, 30 and 31 shall, so far
as they can be made applicable, apply in respect of such
revision of the Development Plan.
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28. It is thus clear that even in respect of such revised
development plan, a draft thereof has to be published
followed by the objections and suggestions, as may be,
filed by the person concerned, and after consideration of
those objections and suggestions, final revised
development plan is sanctioned. In our view, till such
time, the draft Revised Development Plan is sanctioned
finally and comes into effect in accordance with the
provisions prescribed in the MRTP Act, the Draft Revised
Development Plan has no legal sanctity and cannot be
considered as final.
29. It is obvious that if any objections and suggestions
opposing the Draft Revised Development Plan are
accepted by the Planning Authority, such Draft Revised
Development Plan would not be final in its original form.
Admittedly the purchase notice issued by the petitioner
under Section 127 was not issued after the sanction of
Draft Revised Development Plan under Section 31 of the
MRTP Act. The respondents thus cannot be allowed to
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urge that the notice issued by the petitioners under
Section 127 of the MRTP Act after publication of the
Draft Revised Development Plan would not be a valid
purchase notice. There is no substance in the submission
made by the learned counsel for the respondents that the
time to take steps by the respondents to acquire writ
land would not commence from the date of receipt of
purchase notice in view of the respondents already
having published a Draft Revised Development Plan or
that the petitioners would have to issue a fresh notice
under Section 127 of the MRTP Act after expiry of 10
years from the date of sanction of Draft Revised
Development Plan. The submission advanced by the
learned counsel for the respondents are ex facie contrary
to the provisions prescribed in Chapter III of the MRTP
Act.
30. In so far as the judgment of the Supreme Court in
case of Chhabildas v. State of Maharashtra & Ors. (supra)
is concerned, the Supreme Court in the said judgment has
held that if 10 years have passed from the date of
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publication of the plan in question, and a purchase notice
has been served under Section 127,and no steps have been
taken within a period of one year from the date of service
of such notice, all proceedings shall be deemed to have
lapsed. It is further held that even in cases covered by
Section 49, the drill of Section 126(4) and Section 127 will
have to be followed, subsequent to the appropriate
authority making an application to acquire the land
within the period specified in Section 49(7) of the MRTP
Act.
31. In paragraph 30 in case of Chhabildas v. State of
Maharashtra & Ors. (supra), the Supreme Court made it
clear that it had taken such a view in order to do
complete justice in the facts of that case under Article 142
of the Constitution of India. It was clarified that in all
future cases that may arise under the provisions of
Section 49, the drill of Section 127 must be followed, i.e.
that after 10 years have elapsed from the date of
publication of the relevant plan, a second purchase notice
must be served in accordance with the provisions of
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Section 127, in order that lapsing can take place under the
said section. The said judgment does not apply with
retrospective effect. The petitioners were not bound to
issue a second purchase notice even otherwise on the
ground that after following the procedure of Section 49,
the drill of Section 127 must be followed. Learned
counsel for the respondents could not distinguish
paragraph 30 of the judgment of the Supreme Court in
case of Chhabildas v. State of Maharashtra & Ors.
(supra).
32. In so far as the judgment of this Court in case of
Prafulla C. Dave & Ors. (supra) relied upon by
Ms.Deshmukh, learned counsel for the Municipal
Corporation is concerned, the land had been kept under
reservation for the public purpose of a garden in the
development plan of Pune notified on 8 th July, 1966. The
said reservation for garden purpose was continued as per
new revised Development Plan dated 5th January, 1987,
draft plan of which was published in 1982. The petitioners
had purchased the land from the original owners Wakde
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and others in the year 1989. Writ petition was filed in the
year 1989 for deletion and/or de-reservation of the said
land from the designated public purpose. Purchase notice
was issued on 5th October 1989 after filing of the petition
under legal advice.
33. Question of law that fell for consideration before
this Court in the said judgment was "whether, the plan
first prepared and notified under Section 21 of the
M.R.T.P. Act, is the final development plan and the plan
prepared under Section 38 is only a revision of the final
development plan proposed under Section 21 of the
M.R.T.P. Act and as such, the notice contemplated under
Section 127(2) of the M.R.T.P. Act and the period
prescribed is from the publication of the development
plan first notified under Section 21 and not the revised
development plan under Section 38."
34. In paragraph 16 of the said judgment, this Court
held that the expression 'final development plan' in
Section 127 has to be read in that context. This Court
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28/33 WP-8756.18.odt
held that if the petitioners arguments were to be accepted,
it would mean that once a land was reserved and a plan
notified under Section 21, even if the owners took no steps
under Section 127 or Section 49 and thereafter there is a
revised plan notified under Section 38, either having the
same reservation or a different reservation, for the
purpose of Section 127, the period of serving the notice
would commence not from the notification of the revised
development plan, but from the issuance of the final
notification under Section 29(6) of the M.R.T.P. Act of the
first plan.
35. In our view, development plan includes revision of
a development plan. The development plan or revised
development plan becomes final only after requisite
procedure prescribed in Chapter III is followed. The
petitioners had admittedly issued notice after issuance of
publication of Draft Revised Development Plan. The time
to take any step as contemplated under the provisions of
the MRTP Act had already commenced from the date of
receipt of such purchase notice issued by the petitioners
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and was not suspended during the period when the said
Draft Revised Development Plan was pending for
consideration of objections, suggestions and for sanction
thereof as final revised development plan.
36. In so far as the issue raised by Ms.Deshmukh,
learned counsel for the respondent nos.1 to 3 that the
petitioners were already offered TDR for the writ land
before expiry of the period prescribed in the notice
under Section 127 of the MRTP Act is concerned, in our
view, it is at the discretion of the party whose lands are
reserved in the development plan and acquired to accept
monetary compensation or TDR from the acquiring body
and not at the discretion of the acquiring body. There is
thus no substance in the submission made by the learned
counsel for the Corporation. Be that as it may, no steps
were taken by the Planning Authority to acquire the writ
property within the time prescribed.
37. In our view, the reservation of the writ land has
lapsed upon the expiry of the period from service of the
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Purchase Notice under Section 127 of the MRTP Act. The
proposal bearing land acquisition Proposal No.16 of 2006
pending before the Collector, Nashik and or the sanction
of the Draft Revised Development Plan as the new plan by
Notification of 9th January 2017 and consequently the writ
land shown under Reservation No.205 for public housing
cannot be construed as steps taken as contemplated by
Section 127 of the MRTP Act. This Court in the case of
Trilok Singh (supra) while adverting to the judgment of
the Supreme Court in the case of Shrirampur Municipal
Council v. Satyabhambai Bhimaji Dawkher15 and also to
its earlier judgment in the case of Girnar Traders (supra)
has held that the steps towards acquisition can only be
said to have commenced when the State Government
takes steps for acquisition of the particular piece of land,
by the publication of declaration under Section 6 of the
Land Acquisition Act, 1894.
38. In the present case, the notification under Section
6, admittedly, has not been issued. The statutory notice
15 (2013) 5 SCC 627
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31/33 WP-8756.18.odt
viz. the Purchase Notice under Section 127 of the MRTP
Act was issued on 14th July 2015 and it is evident that no
steps as contemplated under Section 126(1)(c) read with
Section 127 were taken before the expiry of the statutory
period of 24 months. We are unable to agree with the
submissions of Ms. Deshmukh on the application of the
judgment of Prafulla C. Dave (supra) as it would deprive
the petitioners of their statutory rights. In this regard, the
Apex Court in the case of Godrej And Boyce
Manufacturing Company Limited (supra) has held that
the statutory right accrued to the owners cannot be taken
away by an attempt to impose fresh reservation. We are
also unable to agree with the contention of Mr. Patil that
the publication of the Draft Revised Plan having been
published prior to the issuance of the Purchase Notice and
the same would have an effect of continuing the
reservation on account of the same being sanctioned
subsequently.
39. In our view, the arguments advanced by the counsel
for respondents are contrary to the principles laid down in
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the case of Girnar Traders (supra) as reiterated by this
Court in the case of Trilok Singh (supra). Further, in this
case the petitioners had taken steps during the period that
was available to them. In our view, there is no merit in
the submissions made by the learned counsel for the
respondents.
40. We accordingly pass the following order:
:ORDER:
(a) The Writ Petitions deserve to be allowed
and are, accordingly, allowed in terms of
prayer clause (a).
(b) The State Government is directed to notify
the lapsing of the reservation by an order to
be published in the Official Gazette as per
the requirement of Section 127(2) of the
MRTP Act, which shall be done as
expeditiously as possible and preferably
within a period of six months from today.
(c) If fresh plans for building permission are
submitted by the petitioners, then the same
be considered expeditiously.
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41. Rule is accordingly made absolute. No order as to
costs.
42. The parties to act on the authenticated copy of this
judgment.
[KAMAL KHATA, J.] [R. D. DHANUKA, J.]
AJN / SBW / SNS
