Rajeev Bhaskarrao Potdar vs The State Of Maharashtra, Through ...
2022 Latest Caselaw 10966 Bom

WP 7938-2019                                 1                      Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                  WRIT PETITION NO. 7938 OF 2019

Rajeev Bhaskarrao Potdar,
aged about 60 years, Occ. Doctor,
R/o Mule Layout, Ward No.11, Kalmeshwar,
Tq. Kalmeshwar, Distt. Nagpur.
                                                                 PETITIONER
                               .....VERSUS.....
1.   The State of Maharashtra,
     through its Secretary, Urban Development,
     Mantralaya, Mumbai - 32.

2.   The Director,
     Town Planning and Assessment Department,
     Central Office, Pune.

3.   Municipal Council, Kalmeshwar,
     through its Chief Officer,
     Tq. Kalmeshwar, Distt. Nagpur.
                                                              RESPONDENT S

              Shri Anand Deshpande, Advocate for the petitioner.
Shri A.S. Fulzele, Additional Government Pleader for respondent Nos. 1 and 2/
                                     State.
                Shri R.J. Kankale, Advocate for respondent No.3.


CORAM : A. S. CHANDURKAR AND M.W. CHANDWANI, JJ.

DATE : 18/10/2022 ORAL JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the learned

counsel for the parties.

2. The challenge raised in the Writ Petition is to the order dated

26/8/2019 passed by respondent No.1 thereby rejecting the notice issued

by the petitioner under Section 49 of the Maharashtra Regional and Town WP 7938-2019 2 Judgment

Planning Act, 1966 (for short "the said Act"). The said notice has been

rejected on the ground that in the measurement sheet, the land owned by

the petitioner has not been clearly indicated.

3. The petitioner is the owner of the land bearing Survey No.

356/2. The said land to the extent of 0.55 R came to be reserved for a

Shopping Complex that was proposed by the Municipal Council. The sale

deed, standing in favour of the petitioner, is dated 1/3/2001. After

purchasing the said land, the petitioner sought to convert the same for

non-agricultural use. That request however was rejected by the Sub-

Divisional Officer on 6/10/2006. Thereafter, on 25/2/2019, the

petitioner issued a notice under Section 49 of the said Act seeking release

of the said land from reservation. The Chief Officer on 6/5/2019 referred

to the fact that the permission to convert the said land had been rejected.

Thereafter, on 10/8/2019, the petitioner informed respondent No.1 that

he was not in a position to develop the said land for want of adequate

documents. It is thereafter that respondent No.1 proceeded to reject the

request for releasing the said land from reservation.

4. We have heard the learned Counsel for the parties and we

have perused the documents on record.

5. In the impugned order, a reference is made to the land of the

petitioner bearing Survey No. 365/2 (New) and Old Survey No. 423 WP 7938-2019 3 Judgment

admeasuring 0.55 R. However, while considering the documents

submitted along with the aforesaid notice, respondent No.1 has observed

that the location of Survey No. 356/2/B admeasuring 0.55 R could not be

located from the measurement map. It is further stated that there is no

clear opinion expressed by the Municipal Council on the notice issued by

the petitioner. On these counts, respondent No.1 was of the view that in

the light of the provisions of Section 49(1)(d)(i) of the said Act, it was

not possible to accept the said notice.

6. We have been shown the Draft Development Plan as well as

the measurement sheet wherein Survey No. 356/2 admeasuring 0.55 R

can be seen. It could not be gathered as to how respondent No.1 has

sought to refer to Survey No.356/2/B when that is not the survey number

of the petitioner's land. The description of the said land can be found in

the notice issued under Section 49 of the said Act as well as in the

communication dated 6/5/2019 issued by the Chief Officer to respondent

No.1. As per the provisions of Section 49(1)(d)(i) of the said Act, if the

land has become incapable of reasonably beneficial use, the affected

owner can serve such notice on the Government. It is the specific case of

the petitioner that he is unable to develop the said land since it is

reserved for shopping complex and that he has no funds to do the same.

7. We find that the only reason for rejection of the aforesaid WP 7938-2019 4 Judgment

notice is the failure to locate Survey No. 356/2/B admeasuring 0.55 R. As

stated above, the petitioner is the owner of Survey No. 356/2 which land

can be seen from the Draft Development Plan as well as the measurement

sheet. In these facts therefore we find that respondent No.1 ought to

re-consider the notice issued by the petitioner under Section 49 of the

said Act since the only ground on which that notice has not been accepted

is failure to locate the subject land.

8. Hence, for the aforesaid reasons, we are inclined to direct

respondent No.1 to re-consider the notice served under Section 49 of the

said Act in accordance with law. The petitioner as well as the

representative of the Municipal Council can be summoned by respondent

No.1 if it desires any clarification with regard to the location of the

petitioner's land bearing Survey No. 356/2. Necessary decision under

Section 49 of the said Act be taken within a period of three months from

receiving copy of the judgment.

9. Keeping the points raised in the Writ Petition open, the same

is allowed in the aforesaid terms. Rule accordingly. No costs.

                                     (M.W. CHANDWANI, J.)           (A.S. CHANDURKAR, J.)

                         SUMIT

Digitally signed bySUMIT CHETAN
AGRAWAL
Signing Date:19.10.2022 10:50