Bombay High Court
M/S Key Stone Construction ... vs The State Of Maharashtra And ... on 16 September, 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. 5540 OF 2021
M/s. Key Stone Construction Company
Pvt. Ltd., A Company Registered under
The Companies Act, having its registered
Office at 122, Navi Peth, Jalgaon Dist.
Jalgaon, through its Director,
Ritesh Omprakash Agrawal,
Age 43 years, Occ. Business and Agril.
R/o. 'Ganesh Kunj' Akashwani Chowk,
Jalgaon, Dist. Jalgaon. ... Petitioner
VERSUS
1. The State of Maharashtra
Through the Secretary
Ministry of Ubran Development
Mantralaya, Mumbai- 32.
2. Municipal Corporation Jalgaon,
Through its Commissioner.
3. The Collector,
Jalgaon, Dist. Jalgaon.
4. The Director of Town Planning
Maharashtra State Town Planning
& Valuation Department,
Government of Maharashtra,
Central Building, near railway
station, Pune.
5. Assistant Director, Town Planning
Municipal Corporation, Jalgaon,
Jalgaon. ... Respondents.
...
Advocate for the Petitioner : Mr. Anand P. Bhandari.
A.G.P. for the Respondent Nos. 1, 3 & 4 : Mrs. R.P. Gaur.
Advocate for the Respondent Nos. 2 & 5 : Mr. Mehul V. Navandar.
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
DATE : 16.09.2022.
941 WP 5540 21.odt
JUDGMENT : (PER : MANGESH S. PATIL, J.)
Heard. Rule. The Rule is made returnable forthwith. Mrs. Gaur
learned A.G.P. waives service for the respondent Nos. 1, 3 and 4 and learned
advocate Mr. Navandar waives service for the respondent Nos. 2 and 5.
2. At the joint request of the parties, the matter is heard finally at the
stage of admission.
3. The petitioner is a company which is seeking a declaration regarding
lapsing of reservation under Section 127 of the Maharashtra Regional and
Town Planning Act (hereinafter 'MRTP Act'), for failure of the respondents to
take steps in the direction of undertaking acquisition of its land reserved for
'shopping centre' in a development plan of Municipal Corporation Jalgaon
which was sanctioned on 01.03.2002.
4. The petitioner served the notice under Section 127 of the MRTP Act to
the respondents on 22.10.2018. The petitioner was called upon to submit
certain documents. Subsequently, the respondent-Corporation offered
Transfer of Development Rights (TDR) in lieu of monetary compensation by
its offer dated 29.05.2019. The petitioner refused to take the TDR. Hence
the petition.
5. Mr. Bhandari learned advocate for the petitioner would vehemently
submit that all the requisites as mandated by law for seeking a declaration
regarding lapsing of the reservation have been followed strictly. The only
issue that had remained to be considered was as to if in lieu of
compensation the Planning and Development Authority can insist the land
owner to accept TDR. He would submit that even this issue is no longer res
integra in view of the full bench decision of this Court in the matter of
Vinayak Builders & Developers Vs. The State of Maharashtra and others
(Writ Petition No. 2231 of 2019) dated 25.07.2022 (Nagpur Bench). He
would submit that taking a roving enquiry, land owner has been held to be
941 WP 5540 21.odt
entitled to refuse or decline TDR and mere passing of the resolution to grant
TDR in lieu of monetary compensation will not constitute a step towards
acquisition of the land as contemplated under Section 126(1) of the MRTP
Act. He would, therefore, submit that the petitioner is entitled to get the
declaration.
6. Per contra, learned A.G.P. and learned advocate Mr. Navandar would
submit that offering of TDR is a step in acquisition. The public purpose of
the intended use cannot be lost sight of. But they concede that the full bench
of this Court has now set at rest this issue.
7. There is no dispute about the fact that the development plan for
Jalgaon Municipal Corporation was sanctioned on 01.03.2002. The
petitioner served a notice under Section 127 of the MRTP Act to the
respondents on 22.10.2018 that is after lapse of ten years from the date of
sanction of the development plan and the petition has been filed on
11.02.2021 that is after 24 months of service of notice to the respondents
under Section 127 of the MRTP Act.
8. Except offering TDR no steps have been taken by the respondents as
contemplated under Section 126(1) of the MRTP Act towards acquisition of
the writ land. As has been laid down in the matter of Girnar Traders Vs.
State of Maharashtra and others; (2007) 7 SCC 555, nothing short of
issuance of a declaration under Section 126 can be regarded as a step in the
direction of acquisition of the land reserved for a public purpose.
9. So far as the aspect regarding offering of the TDR in lieu of monetary
compensation, even that issue has now been set at rest by the full bench in
the matter of Shri. Vinayak Builders & Developers (supra) wherein three
questions were referred for the decision by the full bench which have been
answered in the following manner :
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Sr. Questions Answers
No
1) Whether the modes of acquisition : This Court holds that the
provided under Section 126(1) (a) acquisition under Section
and (b) of the Maharashtra 126(1)(a) and (b) of the
Regional and Town Planning Act, Maharashtra Regional & Town
1966 are at the choice of either of Planning Act, 1966 has to be by
the parties or only of the acquiring consensus between both the
authority ? parties and not only at the
option of the Acquiring
Authority.
2) If the planning authority has : Mere approval of the request of
approved the request of the land the land owner to grant of
owner for grant of monetary monetary compensation or
compensation or grant of TDR/FSI grant of TDR/FSI in lieu of
in lieu of compensation, can the compensation by by itself will
land owner withdraw his request not always result in a concluded
and thereby refuse or decline to contract and the question would
surrender the land ? have to be determined in the
facts and circumstances of each
case. Therefore, the land owner
can withdraw his request and
refuse or decline to surrender
the land as long as there is no
concluded contract between the
parties.
3) Can the grant of approval or : Mere grant of approval or
passing of resolution by the passing of resolution by the
authorities concerned for grant of authorities concerned for grant
TDR in lieu of monetary of TDR/FSI in lieu of monetary
compensation be treated as a step compensation is not a step for
for acquisition of land and thereby acquisition of land, thereby
commencing the proceedings for commencing the proceedings
acquisition of the land ? for the acquisition of land,
unless it concludes the contract
between the parties.
10. In view of such emphatic decision of the Court nothing remains to be
decided except declaring that the reservation has lapsed.
11. We allow the Writ Petition.
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12. It is declared that the reservation on the writ property bearing Survey
No. 29/A/1/A/1 admeasuring 3985 square meters (site No. 184) of village
Mehrun, Tq. & Dist. Jalgaon, stands lapsed.
13. Respondents shall take urgent steps for issuance of notification under
Section 127(2) of the MRTP Act.
14. The Rule is made absolute in above terms.
(SANDEEP V. MARNE J.) (MANGESH S. PATIL, J.)
mkd/-
