Bombay High Court

Rajesh Maujilal Jain vs State Of Maharashtra, Dept. Of Town ... on 30 November, 2023

Author: A.S. Chandurkar

Bench: A. S. Chandurkar

2023:BHC-NAG:16601-DB
               WPs 2053,2054,2055,2056&2057-23              1          Common Judgment
                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                    NAGPUR BENCH, NAGPUR.
                                   WRIT PETITION NO. 2053/2023
                 Jugalkishore Jagannath Jain, Aged 69 years,
                 Occ. Businessman having office at Amardeep
                 Cinema, Anaj Bazaar, Itwari, Nagpur - 440 002.           PETITIONER
                                              .....VERSUS.....
                 1.   The State of Maharashtra, Department of Town
                      Planning and Urban Development, Mantralaya
                      Annex, Mumbai, through its Secretary.
                 2.   The Nagpur Improvement Trust, Nagpur,
                      through its Chairman.
                 3.   The Agricultural Produce Market Committee,
                      Pandit Jawaharlal Nehru Market Yard, Kalamna,
                      Nagpur, through its Secretary.
                 4.   Punjab National Bank, Branch Office at Gandhibagh,
                      Nagpur, through its Branch Manager.                RESPONDENTS

                                               WITH
                                   WRIT PETITION NO. 2054/2023
                 Rajesh Maujilal Jain, Aged 56 years,
                 Occ. Businessman R/o Paithankar Road,
                 Itwari, Nagpur - 440 002.                                PETITIONER
                                              .....VERSUS.....
                 1.   The State of Maharashtra, Department of Town
                      Planning and Urban Development, Mantralaya
                      Annex, Mumbai, through its Secretary.
                 2.   The Nagpur Improvement Trust, Nagpur,
                      through its Chairman.
                 3.   The Agricultural Produce Market Committee,
                      Pandit Jawaharlal Nehru Market Yard, Kalamna,
                      Nagpur, through its Secretary.
                 4.   Axis Bank, Nagpur, through its Branch Manager,
                      Civil Lines, Nagpur -4.                          RESPONDENTS

                                               WITH
                                   WRIT PETITION NO. 2055/2023
                 Gajanan Bagwe, Aged 69 years,Occ. Businessman
                 having office at Amardeep Cinema, Anaj Bazar,
                 Itwari, Nagpur - 440 002.                                PETITIONER
 WPs 2053,2054,2055,2056&2057-23            2          Common Judgment
                             .....VERSUS.....
1.   The State of Maharashtra, Department of Town
     Planning and Urban Development, Mantralaya
     Annex, Mumbai, through its Secretary.
2.   The Nagpur Improvement Trust, Nagpur,
     through its Chairman.
3.   The Agricultural Produce Market Committee,
     Pandit Jawaharlal Nehru Market Yard, Kalamna,
     Nagpur, through its Secretary.
4.   Nagpur Nagarik Sahkari Bank, Branch Office at
     Kalamna, Nagpur, through its Branch Manager,
     Nagpur.                                          RESPONDENTS

                              WITH
                  WRIT PETITION NO. 2056/2023
Anandkumar Maujilal Jain, Aged 45 years,
Occ. Businessman, R/o Amardeep Cinema, Anaj
Bazar, Itwari, Nagpur - 440 002.                         PETITIONER
                             .....VERSUS.....
1.   The State of Maharashtra, Department of Town
     Planning and Urban Development, Mantralaya
     Annex, Mumbai, through its Secretary.
2.   The Nagpur Improvement Trust, Nagpur,
     through its Chairman.
3.   The Agricultural Produce Market Committee,
     Pandit Jawaharlal Nehru Market Yard, Kalamna,
     Nagpur, through its Secretary.
4.   Axis Bank, Nagpur, through its Branch Manager,
     Lakadganj Branch, Nagpur.                        RESPONDENTS

                              WITH
                  WRIT PETITION NO. 2057/2023
Naresh Dhanpatrao Agrawal, Aged 59 years, Occ.
Businessman, R/o Wardhaman Nagar, Nagpur.                PETITIONER
                             .....VERSUS.....
1.   The State of Maharashtra, Department of Town
     Planning and Urban Development, Mantralaya
     Annex, Mumbai, through its Secretary.
2.   The Nagpur Improvement Trust, Nagpur,
     through its Chairman.
 WPs 2053,2054,2055,2056&2057-23               3              Common Judgment
3.   The Agricultural Produce Market Committee,
     Pandit Jawaharlal Nehru Market Yard, Kalamna,
     Nagpur, through its Secretary.
4.   Punjab National Bank, Nagpur, through its
     Branch Manager Lakadganj Branch, Nagpur.                 RESPONDENTS



   Shri U.S. Dastane, counsel for the petitioner in all the writ petitions.
  Shri N.H. Joshi, Assistant Government Pleader for the respondent-State.
 Shri K.P. Mahalle, counsel for the respondent no.2 in all the writ petitions.
      Shri O.A. Ghare, counsel for the respondent no.3 in Writ Petition
                Nos.2053/2023, 2054/2023 and 2057/2023.
 Shri N.R. Tiknayat with A.P. Joshi, counsel for the respondent no.3 in Writ
                  Petition Nos.2055/2023 and 2056/2023.
 Shri S.B. Walekar with Shri S.N. Chichbankar, counsel for the respondent
            no.4 in Writ Petition Nos.2053/2023 and 2057/2023.

CORAM : A. S. CHANDURKAR             AND     MRS VRUSHALI V. JOSHI, JJ.

DATE ON WHICH ARGUMENTS WERE HEARD : OCTOBER 10, 2023
DATE ON WHICH JUDGMENT IS PRONOUNCED : NOVEMBER 30, 2023

JUDGMENT (PER : A.S. CHANDURKAR, J.)

RULE. Rule made returnable forthwith and heard the

learned counsel for the parties. Since a similar challenge has been

raised in these writ petitions, they are being decided together by this

common judgment.

2. The lands bearing Plot Nos.150 to 155 from Khasra No.109

Chikhli Deosthan, District Nagpur are owned by the Nagpur

Improvement Trust - NIT. About eleven plots from said Khasra No.109

have been shown as reserved under the Head E-44 for extension of the

Agriculture Produce Market Committee, Kalamna - APMC in the

"Eastern Industrial Area Trade Scheme". Each petitioner claims to be WPs 2053,2054,2055,2056&2057-23 4 Common Judgment a lawfully inducted lessee of the industrial plots and has been

conducting industrial activities therein. It is the case of the petitioners

that the NIT by its communication dated 08.05.2020 had written to

the Administrator - APMC that the aforesaid plots in question had

been leased out to eleven lessees. Eight lessees thereon had

undertaken construction on the respective plots after obtaining

necessary permission. The initial lease for thirty years having expired,

renewal of the same was being sought. Since the request was made

for extension of the lease, the NIT sought the no objection of the APMC

for de-reserving the said lands to enable grant of extension to the

lease. The petitioners seek to treat this communication dated

08.05.2020 issued by the NIT as a notice issued under Section 127 of

the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the

Act of 1966'). It is their case that since no steps for acquiring the said

lands for the purpose for which they were reserved were taken for a

period of more than twenty four months, the said lands stood released

from such reservation. The petitioners were thus entitled to renewal

of the respective leases.

3. According to the APMC no purchase notice under Section

127 of the Act of 1966 was issued by any of the petitioners. In absence

of any such purchase notice the deeming fiction as regards lapse of

reservation would not apply. The communication dated 08.05.2020 WPs 2053,2054,2055,2056&2057-23 5 Common Judgment issued by the NIT merely sought a no objection certification from the

APMC. A resolution dated 11.03.2023 had been passed by the APMC

opposing de-reservation of the aforesaid lands for the reason that the

same was required for development and extension of the market

committee.

The NIT has also opposed the claim of the petitioners by

stating that it is the Planning Authority and therefore notice dated

08.05.2020 issued by it cannot be treated as a purchase notice. The

NIT did not receive any notice from the petitioners under Section 127

of the Act of 1966. It has referred to the communication dated

27.07.2020 wherein information was sought from the APMC in the

matter of acquiring the said lands and the steps taken in that regard.

It has also opposed the claim made by the petitioners.

4. In the aforesaid backdrop, we have heard Shri U.S.

Dastane, learned counsel for the petitioners, Shri K.P. Mahalle, learned

counsel for the NIT and Shri O.A. Ghare, counsel for the APMC in Writ

Petition Nos.2053/2023, 2054/2023 and 2057/2023 and Shri N.R.

Tiknayat, counsel for the APMC in Writ Petition Nos.2055/2023 and

2056/2023, Shri S.B. Walekar with Shri S.N. Chichbankar, counsel for

the respondent no.4-Bank in Writ Petition Nos.2053/2023 and

2057/2023 and Shri N.H. Joshi, learned Assistant Government Pleader

for the respondent-State.

WPs 2053,2054,2055,2056&2057-23 6 Common Judgment The learned counsel for the petitioners by relying upon the

decision in Zaheda Abdul Ahad & Others Versus Director of Town

Planning Maharashtra State, Central Bldg. Pune & Others [2005 SCC

OnLine Bom 1134] submits that the communication dated 08.05.2020

issued by the NIT amounts to calling upon the APMC to acquire the

said lands for the purposes for which it was reserved. Since no steps

were taken in that regard and the period of twenty four months had

passed the lands stood de-reserved. On the other hand, the learned

counsel appearing for the APMC by relying upon the decision of the

Full Bench in Madanlal Zumberlal Nahar & Others Versus Chief

Officer, Municipal Council, Beed & Others [2023(2) Mh.L.J. 618] and

Mandakini Ruprao Khangar & Others Versus State of Maharashtra &

Others [2023(4) BCR 650] submits that in absence of any purchase

notice by the NIT which owns the property the claim of the petitioners

cannot be accepted.

5. Having given due consideration to the rival submissions we

find that no declaration under Section 127 of the Act of 1966 that the

subject lands stand de-reserved can be granted in favour of the

petitioners. These lands vest with the NIT and the petitioners are the

lease holders thereof. The notice under Section 127 of the Act of 1966

is required to be given by the owner or any person interested in the

land. The petitioners as lessees of the said land have a limited interest

in the said lands being lease-holders thereof. In that capacity they WPs 2053,2054,2055,2056&2057-23 7 Common Judgment have not issued any such notice. The NIT in whom the lands vest has

not supported the stand of the petitioners - lessees in that regard. In

absence of any statutory notice being issued by the owner there would

be no question of application of deeming fiction under Section 127 of

the Act of 1966. In any event, we find that the communication dated

08.05.2020 cannot be termed to be a purchase notice as required by

Section 127 of the Act of 1966. Its perusal indicates that it merely

seeks response from the APMC as to whether it has any objection for

de-reserving the said lands and if so to issue a no objection certificate

in that regard. Except aforesaid, nothing further has been stated in the

said communication. We therefore find that on the basis of the

communication dated 08.05.2020 no declaration of the reservation

having lapsed as sought by the petitioners can be granted.