Vivek S/O Shankarrao Mamidwar vs The State Of Maha., Thr. Secretary ...
2023 Latest Caselaw 8484 Bom

2023:BHC-NAG:12412-DB


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                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        NAGPUR BENCH, NAGPUR

                                        WRIT PETITION NO. 3536 OF 2022

                 Shri Vivek S/o. Shankarrao Mamidwar,
                 Aged about 54 yrs, Occupation: Agriculturist
                 and business, R/o. Factory Ward, Umarkhed,
                 Tahsil Umarkhed, District Yeovatmal,
                 Presently residing at C-17, Ajantha Nagar
                 Society, Fule Nagar, Aakurdi, Pune-411019.                                . . . PETITIONER

                                      // V E R S U S //

                 1. The State of Maharashtra through its
                    Secretary of Urban Development
                    Department, Mantralaya, Mumbai.

                 2. District Collector, Yeovatmal, Tashil &
                    District Yeovatmal.

                 3. Municipal Council, Umarkhed through its
                    Chief Officer, Umarkhed, Tq. Umarkhed,
                    Dist. Yeovatmal.                                                  . . . RESPONDENTS

                 ---------------------------------------------------------------------------------------------------
                 Shri A. M. Ghare, Advocate for petitioner.
                 Shri S. M. Ukey, Addl. G. P. for respondent nos. 1 and 2/State.
                 Shri V. R. Choudhary, Advocate for respondent no. 3.
                 ---------------------------------------------------------------------------------------------------
                                  CORAM :-         AVINASH G. GHAROTE &
                                                   M. W. CHANDWANI, JJ.

                 RESERVED ON                :- 10.08.2023
                 PRONOUNCED ON :-                 21.08.2023



                 JUDGMENT (PER: M. W. CHANDWANI, J.):-

                                  Heard.
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2. Rule. Rule made returnable forthwith with consent of the

parties.

3. This petition invokes deeming fiction of lapsing of the

reservation of the land of the petitioner under Section 127 of the

Maharashtra Regional Town Planning Act, 1966 (for short, "MRTP

Act").

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

331/3, admeasuring 0.27R of Mouza Umarkhed, Tahsil Umarkhed,

District Yeovatmal (for short, "the said land"), which he purchased

from Shri Balaji @ Balaprasad Hiralal Innani vide Sale Deed dated

10.05.2019. The Development Plan of respondent no. 3 for the city of

Umarkhed, Tahsil Umarkhed, District Yeovatmal was revised and

published on 15.04.1999. Respondent no. 3, who is planning authority

for the city of Umarkhed, did not take any steps for developing the said

land for 10 years. On 18.09.2019, the petitioner served purchased

notice to respondent no. 3 under Section 127 of the MRTP Act

alongwith all necessary documents. Though, respondent no. 3

resolved to acquire the said land of the petitioner and even forwarded

the proposal to respondent no. 2 for acquiring the said land, but no

further steps were taken towards acquisition of the said land of the 3 wp-3536-22j.odt

petitioner. Hence, this petition for declaration and deeming fiction of

lapsing of reservation under Section 127 of the MRTP Act.

5. Heard the learned counsel for the petitioner as well as the

respondents. Gone through the record as well as reply of respondent

no. 3- Municipal Council.

6. Indisputably, the revised Development Plan of the city of

Umarkhed proposed by respondent no. 3 was published on

15.04.1999. For 10 years respondent no. 3 did not take any steps for

developing the said land of the petitioner, which was reserved for

Garden under Reservation no. 27. The service of purchase notice on

18.09.2019 to respondent no. 3 is an admitted fact. Though,

respondent no. 3 sent a proposal to respondent no. 2 for acquisition of

the said land of the petitioner, no further steps have been taken.

7. In this regard the law is settled by the various

pronouncements of this Court as well as of the Supreme Court. In the

case of Girnar Traders Vs. State of Maharashtra [(2007) 7 SCC 555] ,

the Hon'ble Apex Court held as under:-

"57. It may also be noted that the legislature while enacting Section 127 has deliberately used the word "steps" (in plural and not in singular) which are required to be taken for acquisition of the land. On construction of Section 126 which provides for acquisition of the land under the MRTP Act, it is apparent that the steps for acquisition of the land would be issuance of the declaration under section 6 of the LA Act.

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Clause (c) of Section 126 (1) merely provides for a mode by which the State Government can be requested for the acquisition of the land under section 6 of the LA Act. The making of an application to the State Government for acquisition of the land would not be a step for acquisition of the land under reservation. Sub-section (2) of section 126 leaves it open to the State Government either to permit the acquisition or not to permit, considering the public purpose for which the acquisition is sought for by the authorities. Thus the step towards acquisition would really commence when the State Government permits the acquisition and as a result thereof publishes the declaration under Section 6 of the LA Act."

8. In view of the settled law that mere sending of proposal to

the Land Acquisition Authority does not amount to taking up steps for

acquisition of land, and since, the statutory period of 24 months, as

envisaged under Section 127 of the MRTP Act from the date of

purchase notice, is already lapsed and no steps for acquisition of the

land is taken by respondent no. 3, therefore deeming fiction of lapsing

of reservation on the said land of the petitioner has to follow.

9. It is further necessary to note that the reservation in

respect of the other land, i.e. portion/subdivision of original Survey no.

331, which is part of Reservation no. 27 for playground belonging to

other person, has already been declared lapsed in the case of Vikram

S/o. Nandkishore Gattani Vs. State of Maharashtra (Writ Petition No.

5026/2022, decided on 17.03.2023).

10. In view of the above, we are inclined to allow the Writ

Petition and pass the following order:-

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                               i)          The Writ Petition is allowed.



                               ii)         It is declared that the reservation on the land of the

                               petitioner admeasuring      0.27R of Survey no. 331/3 of Mouza

Umarkhed, Tahsil Umarkhed, District Yeovatmal stands lapsed and the

petitioner is free to develop the said land owned by him in the manner

permissible to the adjacent land as per the Development Plan of city of

Umarkhed.

iii) The respondents are directed to notify and publish the

same in the official gazette within eight weeks from the date of receipt

of the copy of the judgment.

                               iv)         Rule accordingly. No costs.




                               (M. W. CHANDWANI, J.)                       (AVINASH G. GHAROTE, J.)




              RR Jaiswal




Signed by: Mr. Rajnesh Jaiswal
Designation: PA To Honourable Judge
Date: 21/08/2023 17:28:03