Suresh Mankachand Zambad vs The State Of Maharashtra And ...
2023 Latest Caselaw 902 Bom

                                                                             943.wp.7144.2020.odt


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                             WRIT PETITION NO.7220 OF 2020

                SUBHASH MANAKCHAND ZAMBAD AND ANOTHER
                                 VERSUS
                  THE STATE OF MAHARASHTRA AND OTHERS

                                        WITH
                            WRIT PETITION NO.7144 OF 2020

                       SURESH MANKACHAND ZAMBAD
                                     VERSUS
                   THE STATE OF MAHARASHTRA AND ORS
                                         ...
         Advocate for Petitioners : Mr. S.S. Khoche h/f. Mr. D.P. Palodkar
                      AGP for Respondents: Mr. A.S. Shinde
             Advocate for Respondent Nos. 5 to 8: Mr. Jiwan Patil
                                         ...
                               CORAM         :  MANGESH S. PATIL AND
                                                S.G. CHAPALGAONKAR, JJ.
                                      DATE      :   27.01.2023
ORDER :

Heard. Rule. Rule is made returnable forthwith. At the joint

request of the parties, the matters are heard finally at the stage of

admission.

2. Since the facts are similar and the petitioners are claiming the

same relief regarding lapsing of reservation pursuant to Section 127 of the

Maharashtra Regional and Town Planning Act, 1966 (the Act) we are

disposing of these petitions by this common judgment and order.

3. Admittedly, the development plan was sanctioned on

01.10.2001. The writ properties were earmarked as green belts to the

extent of 53 Are and 1649.461 sq.mtrs. respectively. Since no steps were

taken pursuant to the provisions of Section 126(4) read with either Section

943.wp.7144.2020.odt

6 of the Land Acquisition Act, 1894 or Section 19 of the Right to Fair

Compensation and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 within the statutory period of 10 years, notices

under Section 127 were issued. Those were served to the respondents on

26.09.2017 and the petitions have been filed after 24 months of service of

the notice.

4. Learned advocate Mr. Patil for the CIDCO submits that the

purpose of keeping the green belt would be lost which are so essential for

the well being of the society and the environment. The respondents should

be given an opportunity to offer additional FSI or TDR to the petitioners in

lieu of monetary compensation.

5. The question of the petitioners being offered any additional FSI

or TDI in lieu of monetary compensation is no more res integra in view of

the full bench decision of this Court in the matter of Shree Vinayak Builders

and Developers Vs. State of Maharashtra and Ors.; 2022(4) Mh.L.J 739

wherein it has been emphatically laid down that the property owner cannot

be compelled to accept the TDR in lieu of monetary compensation.

6. As far as the purpose of the reservation is concerned true it is

that it is 'reserved' for green belt and except development of the green belt

nothing else is to come up on the reserved portion. But even this issue has

been decided by this Court in the matter of Maidan Bacchav Samiti and Ors.

Vs. Ramchandra Padmakar Vaidya And Ors.; 2011(3) All.M.R. 497 wherein

it has been laid down that the lapsing of reservation under Section 127

943.wp.7144.2020.odt

would take within its sweep even the properties 'designated' for a particular

purpose. The relevant paragraph No.26 reads as under :

"26. The submission is also contrary to section 127 which deals with lapsing of reservation. The section provides that:- "if any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement" or if proceedings for acquisition of such land under the Land Acquisition Act are not commenced within the stipulated period, the owner or any person interested in the land may serve a notice upon the appropriate authority to that effect and if within 6 months from the date of service of such notice, the land is not acquired or steps are not taken 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 as otherwise permissible in the case of adjacent land under the relevant plan.

The section, therefore, makes it clear that lands which are either reserved, allotted or designated may be acquired. In other words, it is not only lands which are shown to be reserved under the Development Plan, which may be acquired under the Act."

7. In the light of the decision in the case of Girnar Traders (2) Vs.

State of Maharashtra; 2007 (7) SCC 555, since admittedly no steps towards

acquisition as contemplated in law were taken the consequence are

inevitable. The reservation would lapse.

8. The writ petitions are allowed. It is declared that the

reservations on the writ properties stand lapsed. The respondent shall take

urgent steps for issuance of notification under Sub-Section 2 of Section 127

of the Act.

(S.G. CHAPALGAONKAR, J.) (MANGESH S. PATIL, J.)

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