Bombay High Court
Smt. Sushilaben Wd/O Shanabhai Patel, ... vs State Of Maharashtra, Through Its ... on 19 December, 2023
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2023:BHC-NAG:17634-DB
wp2808.18jud.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 2808 OF 2018
1. Smt. Sushilaben Wd/o Shanabhai Patel,
Aged about 78 years,(Dead. Deleted) .....Petitioners
2. Sunil S/o Shanabhai Patel,
Aged about 57 Years,
3. Rakesh S/o Shanabhai Patel,
Aged about 53 years,
4. Atul S/o Shanabhai Patel,
Aged about 47 years,
Petitioner nos.1, 2 and 4 through their
Constituted attorney - Petitioner no.3 -
Rakesh S/o Shanabhai Patel,
5. Smt. Jayashree Wd/o Sudhir Patel,
Aged about 64 years,
6. Smt. Hansa Wd/o Pankaj Patel,
Aged about 44 years,
7. Ms. Mahi Daughter of Pankaj Patel,
aged about 16 years,
8. Ms. Dhun D/o Pankaj Patel,
Aged about 14 years,
Petitioner nos. 7 and 8 thru. their natural
guardian mother petitioner no.6 - Smt.
Hansa Pankaj Patel.
9. Jinesh S/o Sudhir Patel,
Aged about 43 years, thru. their constituted
attorney - petitioner no.3 - Rakesh
Shanabhai Patel.
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10. Ms. Rachana D/o Sudheer Patel,
Aged about 40 years, through her constituted
attorney Petitioner no.5 Smt. Jayshree Wd/o
Sudheer Patel
11. Smt. Taraben Wd/o Maganbhai Patel,
Aged about 78 years,
12. Nikul S/o Maganbhai Patel,
Aged about 57 years,
13. Paresh S/o Maganbhai Patel,
Aged about 59 years,
Petitioner nos.11 to 13 through their
constituted attorney - Rakesh Shanabhai
Patel
14. Ms. Ketki D/o Maganbhai Patel,
Aged about 55 years,
15. Ms. Leena D/o Maganbhai Patel,
Aged about 53 years,
16. Smt. Tara Wd/o Madhukarrao Bhadbhade,
Aged about 81 years, through her Constituted
attorney - Nikul Maganbhai Patel- Petitioner
no.12.
17. Jay S/o Rakesh Patel,
Aged about 22 years, through his constituted
attorney - petitioner no.3 - Rakesh
Shanabhai Patel,
All by Occupation - Business and cultivation
and residents of Babupeth, Chandrapur,
Tq. & Dist. Chandrapur.
VERSUS
1. State of Maharashtra,
Through its Principal Secretary, ....Respondents
Urban Development Department,
Mantralaya, Mumbai - 400 032.
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2. The Municipal Corporation of
City of Chandrapur,
through its Commissioner/Planning Authority
Chandrapur, Tq. & Dist. Chandrapur.
Mr. Vishwajeet P. Sawant, Senior Advocate assisted by Mr. M.P.
Khajanchi, Advocate for the petitioners.
Mr. Ambarish M. Joshi, A.G.P. for respondent no.1
Mr. M. I. Dhatrak, Advocate for respondent no.2
CORAM : SMT. ANUJA PRABHUDESSAI, AND
MRS. VRUSHALI V. JOSHI, JJ.
DATED : 19th DECEMBER, 2023.
JUDGMENT :
(PER: Mrs.Anuja Prabhudessai, J)
A pursis is filed stating that petitioner no.1 has expired.
The name of the petitioner no.1 be deleted. Cause title be amended
forthwith.
2. RULE. Rule made returnable forthwith. Heard finally by
consent of the learned counsel for the respective parties.
3. Though, the petitioners have filed this petition seeking
various reliefs, they have restricted the relief to prayer clause (a),
wherein they have sought a declaration that reservation of land under
survey Nos. 107/1 cha, 107/1chha, 107/1 ja, 91, 26, 27, 107/60 Aa
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and 107/60Fa2 of mouza Dewai Govindpur Raiyatwari, Tq. & Dist.
Chandrapur, (hereinafter referred to as 'the subject land') has lapsed
in view of the provisions of Section 127 of the Maharashtra Regional
and Town Planning Act, 1966 (hereinafter referred to as "the MRTP
Act").
4. The petitioners claim to be the holders of the subject land,
which is part of designated gaothan area of Chandrapur as per
Sanctioned Notification, published by Chief Commissioner of Central
Provinces and Berar vide Notification dated 17.09.1873. In the final
Development Plan of Chandrapur, published under the Maharashtra
Government Gazette dated 04.12.1997 and which came into force
from 15.08.1997, different parts of the subject land were shown as
reserved for different development purposes. The subject lands were
neither acquired nor acquisition proceedings commenced within ten
years from the date of final Development Plan came into force. Hence,
the petitioners served purchase notices dated 07.04.2008 under
Section 127 of the MRTP Act. The respondents did not take steps for
acquisition within the statutory period of six months. Hence, the
present petition for the relief as stated above.
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5. The respondents claim that the petitioners, who claim to
be the holders of the respective land, had not substantiated their
contention by filing necessary documents. It is stated that on receipt
of purchase notices under Section 127 of the MRTP Act, the
respondents vide communication dated 19.04.2008 had called upon
the petitioners to produce documentary evidence about ownership/
title as well as maps in respect of the said properties. The
respondents claim that the petitioners have not identified their land,
which is affected by reservation. It is further stated that 7/12 extracts
indicate that the subject land is owned by Water Supply Department of
Chandrapur and hence, the petitioners cannot claim lapsing of
reservation.
6. Mr. V. P. Sawant, learned Senior counsel for the petitioners
submits that the notice under Section 127 of the MRTP Act was issued
prior to 2009 amendment and as such the petitioners were not
required to annex the documents along with the notice. He further
submits that there is no dispute about identity of the land affected by
reservation. He submits that the respondents having failed to take
effective steps towards acquisition, the reservation is deemed to have
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lapsed. He has relied upon the decision of the Apex Court in
Municipal Council of Greater Bombay .vs. Dr. Hakimwadi Tenants'
Association and others, reported at 1988 Supp SCC 55 and the
decisions of the Division Bench of this Court in Hirabai W/o
Shrikrishna Chiddarwar .vs. State of Maharashtra and another ,
reported at 2016 (4) Mh.L.J. 283, Hasina Kudbuddin Shaikh and
others .vs. Karad Municipal Council and others , reported at 2019(1)
Mh.L.J. 126 and Chinmay Gurunath Parale .vs. State of Maharashtra ,
reported at 2023(5) Mh.L.J. 656.
7. Per contra, learned counsel for the respondent-Corporation
submits that the petitioners have failed to produce the documents to
substantiate that they have right, title or interest in the subject lands.
He submits that the survey records reveal that the subject lands are
recorded in the name of Water Supply Department of Chandrapur. He
further contends that the petitioners have no right to issue notice
under Section 127 of the MRTP Act and/or claim lapsing of
reservation.
8. We have perused the records and considered the
submissions advanced by the learned counsel for the respective parties.
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9. The challenge to the prayers in writ petition is essentially
on the ground that the petitioners had not furnished the documents
along with the notice and had not submitted a plan to identify the land
affected by reservation. It is pertinent to note that the notice under
Section 127 of the MRTP Act was issued prior to the amendment
published on 25.06.2009. Hence, it would be relevant to consider the
provision of Section 127(1) of the MRTP Act as it then existed on
Statute Book prior to the amendment. The said section reads thus -
"127. (1) If any land reserved, allotted or designated for
any purpose specified in any plan under this Act is not
acquired by agreement within ten years from the date on
which a final Regional plan, or final Development plan
comes into force or if proceedings for the acquisition of
such land under this Act or under the Land Acquisition
Act,1894, are not commenced within such period, the
owner or any person interested in the land may serve
notice on the Planning Authority, Development Authority or
as the case may be, Appropriate Authority to that effect;
and if within six months from the date of the service of
such notice, the land is not acquired or no steps as
aforesaid are commenced for its acquisition, the
reservation, allotment or designation shall be deemed to
have lapsed, and thereupon the land shall be deemed to be
released from such reservation, allotment or designation
and shall become available to the owner for the purpose of
development or otherwise, permissible in the case of
adjacent land under the relevant plan."
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10. In terms of Section 127(1) of MRTP Act, as it stood prior to
the amendment, the owner or a person interested in the land was
required to serve a notice on the Planning Authority or the Appropriate
Authority, if the land is not acquired within ten years from the date on
which the Regional development plan or the final Development plan
had come into force and in the event the Planning or the Appropriate
Authority does not take any step for acquisition of the land, the
reservation, allotment or designation of the land shall be deemed to
have lapsed. Section 127(1) as it stood prior to the amendment, the
owner or a person interested in the said land was not required to
furnish the documents showing their title or interest in respect of the
land under reservation.
11. In Municipal Council of Greater Bombay .vs. Dr.
Hakimwadi Tenants' Association (supra), the Corporation had asked
for information regarding the ownership of the land under the
particulars of the tenants thereof. The letters stated that the relevant
date under Section 127 of the MRTP Act would be the date upon
which the said information was received. The Apex Court observed
that the condition pre-requisite for the running of time under Section
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127 of the MRTP Act is the service of a valid purchase notice. It is
further observed that the Corporation must be satisfied that the notice
served was by the owner of the affected land or any other person
interested in the land. But, at the same time, Section 127 of the MRTP
Act does not contemplate an investigation into the title by the officers
of the Planning Authority, nor can the officers prevent the running of
time, if there is a valid notice. The Apex Court has held that the
Corporation was not justified in seeking information regarding the title
and ownership as it had requisite information in their records and had
access to all land records including the records of cadastral survey. It
was observed that seeking such information/documents was only an
attempt to prevent the running of time and was of little or no
consequence.
12. The Division Bench of this Court in Hiralal Chiddarwar
(supra) has also observed that the unamended provisions of Section
127(1) of the MRTP Act did not require the owner or person interested
in the land to serve a notice along with the documents. Similar view is
taken in Chinmay Gurunath Parale (supra), wherein it is reiterated
that not furnishing the requisite documents together with purchase
notice does not render the purchase notice invalid.
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13. In the instant case, the petitioners, who claimed to be the
holders of the subject lands, had issued purchase notice giving details
of the property affected by reservation. The respondent Corporation,
who has access to revenue records, has raised a dispute regarding the
title solely on the ground that part of the subject land is recorded in
the Survey records in the name of Water Supply Department of
Chandrapur and Sarvodaya Shikshan Mandal, Chandrapur. Learned
counsel for the respondent-Corporation fairly concedes that the land
acquired by Water Supply Department and/or the land recorded in the
Survey records in the name of Water Supply Department of
Chandrapur and Sarvodaya Shikshan Mandal, Chandrapur, is not
affected by reservation. Furthermore, a perusal of the reply filed by
the respondent-Corporation also reveals that there was no dispute
regarding identity of the land, which is affected by reservation. In
such circumstances, non-production of the plan or not submitting the
documents would not render the purchase notice invalid.
14. The affidavit-in-reply filed by respondent no.1 reveals that
pursuant to the receipt of the purchase notice, the State Government
vide letter dated 28.04.2018 had called upon the respondent no.2
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Corporation as well as Director of Town Planning, Maharashtra, Pune
and Chandrapur to submit the report. It is stated that no such report
was furnished by the said authorities. It is also not in dispute that no
effective steps were taken within a period of six months for acquisition
of land affected by reservation. This being the position, by virtue of
provision of Section 127 of the MRTP Act, the reservation of the land
shall be deemed to have lapsed and as held by the Apex Court in Dr.
Hakimwadi Tenants' Association (supra), the delay in filing the
petition would make no difference.
15. Under the circumstances and in view of the reasons stated
above, the petition is allowed in terms of prayer clause (a).
It is held that the reservation of the subject land has lapsed
and the said land stands released from reservation and is available to
the petitioners for development as it is permissible in case of the
adjacent land as per the Development Plan.
Rule is made absolute in aforesaid terms with no order as
to costs.
[MRS.VRUSHALI V. JOSHI, J.] [SMT. ANUJA PRABHUDESSAI J.]
Signed by: DIWALE PPDiwale, PAGE 11 OF 11
Designation: PS To Honourable Judge
Date: 28/12/2023 11:14:10
