Bombay High Court
M/S Laxmi Construction Company, ... vs State Of Maharashtra, Department Of ... on 12 December, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17196-DB
1 wp2800.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.2800/2020
M/s. Laxmi Construction Company,
through its Partner, Vipul Chotabhai
Patel, aged about 50 Yrs., R/o Aney
Mahia Vidyalaya Road, Datta Chowk,
Yavatmal, Tq. & Dist. Yavatmal. ... Petitioner
- Versus -
1. State of Maharashtra,
Department of Urban Development,
through Chief Secretary, Mantralaya,
Mumbai 400 032.
2. Municipal Council,
through Chief Officer, Town
Planning Department, Near
Police Station, Yavatmal.
3. Town Planning Officer,
Yavatmal, Dist. Yavatmal. ... Respondent
-----------------
Mr. M.M. Agnihotri, Advocate for the Petitioner.
Mr. Nitin Autkar, A.G.P. for the respondent Nos.1 and 3.
Mr. R.S. Gode, h/f Mr. V.D. Darne, Advocate for respondent No.2.
----------------
CORAM :- SMT. ANUJA PRABHUDESAI &
MRS. VRUSHALI V. JOSHI, JJ.
DATED:- 12.12.2023
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JUDGMENT (Per Mrs. Vrushali V. Joshi, J.)
Heard. Rule. Rule made returnable forthwith.
Heard finally by consent.
2. By this petition the petitioner seeks to challenge the
inaction on the part of the respondents in not taking steps
envisaged under Section 126 and 127 of the Maharashtra
Regional Town Planning Act, 1966 (for short "Act of 1966").
3. The petitioner is the owner of part of Survey No.13/4,
sheet No.55, Nazul Plot No.3/1, admeasuring 1.37 hector, Class-I
in Mouza Yavatmal, Tahsil and District Yavatmal which is within
the municipal limits of respondent No.2 Council. The petitioner
purchased the above mentioned land from one Mr. Madanbhai
Samnanni vide registered sale deed dated 24.4.2002.
4. Area of 2920.35 Sq. Mtrs. i.e. 0.29 hector was under
reservation No.79 of Development Plan of 1978 and thereafter in
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Development Plan of 1997 under Reservation No.34. A DP
road of 2850 Sq. Mtrs. is also passing through the land of the
petitioner. The instant petition relates to only 0.29 hector of
land which was under Reservation No.34.
5. As per the Development Plan of 1978 vide
Reservation No.79, out of admeasuring 1.37 HR land about
2920.35 Sq. Mtrs. was reserved by respondent No.2 Authority
for the playground. Thereafter in Development Plan of 1998
reservation was changed for the park / garden vide Reservation
No.34 vide Order No.TPS/2795/1600/C.R./U.D.-13 dated
8.7.1997.
6. The land was notified in the year 1978. No steps
were taken by the respondent No.2 Council, therefore, in the year
2004 the petitioner issued a purchase notice under Section 127 of
the Act of 1966 to the respondents. The respondent No.2 has
duly received the same on 15.3.2004 and respondent No.3 Town
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Planner received the same on 15.4.2004. The copy of said notice
was also forwarded to the Deputy Director, Town Planning,
Amravati and Director of Town Planning, Pune by registered
post.
7. The petitioner has reliably learnt that as per the
records of respondent No.2 Council, all other authorities who
were in receipt of notice under Section 127, had cautioned the
respondent Council to take effective steps for acquiring the land
within six months as per Section 127 of the Act of 1966. These
authorities also clarified that if the respondent No.2 fails to
initiate action within six months the reservation would lapse.
8. On 22.7.2004 the issue was discussed in the meeting
and a resolution was passed thereby refusing to acquire the land as
per Section 126 of the Act of 1966 since the respondent No.2 was
not having good financial condition so as to bear the cost of the
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land. Inspite of the fact that said resolution dealt with the land of
the petitioner it was never forwarded to the petitioner.
9. After the resolution of the authorities, the Town
Planning Department and Collector were informed about the said
Resolution No.6 with respect to purchase of land in question.
However, on 6.9.2004 vide outward No.347/2004 the
respondent No.2 taking shelter of Government Resolution dated
31.10.1997 requested the Collector to continue with the land
acquisition proceedings. Accordingly, the proposal to acquire the
land in question in prescribed format was forwarded.
10. On 9/19.302005 the Collector had instructed the
Sub-Divisional Officer cum Land Acquisition Officer to initiate
the action under Section 4 of the Land Acquisition Act, 1894. It
was also directed to collect 2/3rd amount from the Municipal
Council. As the respondent No.2 had not informed about the
steps taken by it in response to the purchase notice issued, the
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petitioner issued a letter to the respondent No.2 informing that
though 15 months have passed there is no response from the
respondent Council.
11. Since no effective steps were taken by the respondents
the petitioner again issued notice dated 5.12.2005 through his
counsel under Section 49 of the Act of 1966 by which it was
informed that the concerned authorities have failed to clear the
land for which it was reserved. Therefore, the intention for which
the land was reserved has become infructuous. Therefore, the
petitioner called upon the authorities of the Town Planning as
well as the respondent No.2 Council as to why the reservation as
proposed over the said land could not be deemed to be lapsed as
stipulated within the provisions of Section 49 of the Act of 1966.
12. After the receipt of the said letter dated 18.8.2005 the
notice dated 5.12.2005 vide letters dated 22.11.2005 and
31.3.2006 the respondent No.2 Council replied to the petitioner
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informing that in view of notice issued by the petitioner, the
respondent Council has followed the process of acquisition of the
land.
13. Since the respondent No.2 had informed about
initiation of process of acquisition, the petitioner vide his letter
dated 19.12.2005 called information as the status of proposal
which has been forwarded to the Government. However, till date
the respondent No.2 Council has not given any reply nor did
forwarded proposal to the authorities.
14. Though the respondent Council has made specific
statement regarding initiation of acquisition process no further
steps were taken till the filing of the petition. On 16.11.2009 the
petitioner once again issued letter to the Chief Officer of
respondent No.2 Council requesting them to complete the
process of acquisition and compensation be given to the
petitioner.
8 wp2800.2020
15. On 25.1.2011 the petitioner again issued a legal notice
to respondent No.1 informing that the land is reserved and more
than 14 years has been lapsed, however, no steps regarding its
acquisition has been taken by the respondents and, therefore, the
land stands released from the reservation. In spite of receipt of
the notice 25.1.2011 the respondents have failed to take necessary
steps.
16. In the Annual General Meeting dated 22.7.2004 it
had specifically expressed its financial crunch to clear the property
in question. Therefore, it was bounden duty of respondent No.2
to de-reserve the land of the petitioner. Considering the above
said aspect and considering the statutory period of 10 years it is
crystal clear that the period of 10 years had lapsed. In spite of the
fact that the period has expired and the purchase notice has been
served steps were not taken by the respondents for acquiring the
land and compensating the petitioner. The petitioner issued
statutory notice under Section 127 of the Act of 1966. By this,
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the respondents were called upon to take steps within a period of
24 months from the date of service of the notice. Notice is
served on the respondents more specifically on respondent No.2
no action has been initiated by it. By this notice, all the above
facts were brought to the knowledge of the respondents. It was
pointed out that despite reservation of the land in question no
steps for acquisition were taken by them. Though the notice was
issued on 15.3.2004 till date of filing the petition respondents
have not taken steps for acquiring the land of the petitioner as
envisaged under Section 126 of the Act of 1966. Therefore, the
land of the petitioner needs to be deserved and declared that the
petitioner is entitled to release the land.
17. For the aforesaid reasons, the petition is allowed.
The petitioner's land admeasuring 2920.35 Sq. Mtrs. in part of
Survey No.13/4, Mouja Yavatmal, Tahsil and District Yavatmal
which is within the Municipal limits of respondent No.2 Council
which had been reserved by the respondent under Reservation
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No.34 (Garden) has lapsed and is released from the said
reservation. The permission is granted to the petitioner to utilise
the said land in question as it being utilized by the adjacent land
owners.
18. Rule is made absolute in the above terms. No costs.
(MRS. VRUSHALI V. JOSHI, J.) (SMT. ANUJA PRABHUDESAI, J.)
Tambaskar.
Signed by: MR. N.V. TAMBASKAR
Designation: PA To Honourable Judge
Date: 15/12/2023 12:23:05
