Bombay High Court
Sampat S/O Keru Chaudhari And Ors vs State Of Maharashtra Thr. Its Secretary ... on 1 August, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
2024:BHC-AS:30275-DB Sampat s/o Keru Chaudhary & Ors v State of Maharashtra & Ors
23-aswp-9704-2024-JF.doc
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9704 OF 2024
1. Sampat s/o Keru Chaudhari,
Aged about 72 years, Occ. Agri.
2. Shanta ram s/o Sampat Keru
Chaudhari,
Aged about 46 years, Occ. Agri.
3. Sukhdev s/o Sampat Keru
Chaudhari,
Aged about 53 years, Occ. Agri.,
4. Somnath s/o Sampat Keru
Chaudhari,
Aged about 52 years, Occ. Agri.
All R/o Pathardi, Tq. & Dist. Nashik. ...Petitioners
~ versus ~
1. State of Maharashtra,
Through its Secretary,
Ministry of Urban Development,
Mantralaya, Mumbai 32.
2. Nasik Municipal
Corporation,
Digitally
Through its Commissioner,
signed by
ASHWINI N.M.C. Office, Rajiv Gandhi Tilak wadi
ASHWINI
H GAJAKOSH
GAJAKOSH Date:
Saharanpur roadk-422 002.
2024.08.01
14:41:58
+0530 3. The Commissioner,
Municipal Corporation Nasik N.M.C.
Office, Rajiv Gandhi Tilak wadi
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Sampat s/o Keru Chaudhary & Ors v State of Maharashtra & Ors
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Saharanpur Road, Nasik-422 002.
4. Deputy Director of Town
Planning,
Municipal Corporation Nasik, N.M.C.
Office, Rajiv Gandhi Bhavan, Tilak
wadi Saharanpur Road, Nasik-422 002. ...Respondents
A PPEARANCES
for the petitioners Ms Pushpa Ganediwala, with Anshu
Agrawal, Ankit R Rathod &
Chaitanya Purankar.
for respondent- Mr M.L. Patil.
corporation
for respondent no. Mr R.M. Shinde, AGP.
1-state
CORAM : M.S. Sonak &
Kamal Khata, JJ.
RESERVED ON : 29th July 2024
PRONOUNCED ON : 1st August 2024
ORAL JUDGMENT (Per Kamal Khata,J):-
1. Rule.
2. Rule made returnable forthwith heard finally at the admission
stage by consent of counsel.
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3. The Petitioners seek a declaration that the old Reservation
No. 17 as 'Garden' on their land has lapsed by operation of Section
127 of the Maharashtra Regional and Town Planning Act 1966
("MRTP Act") and, consequently, a direction for the release of
their land to them for development as permissible in law.
4. In the case of Shivgonda Anna Patil v Sangli Miraj and
Kupwad City Municipal Corporation1 decided by us, we referred to a
judgment in the case of Uday Madhavrao Patwardhan & Ors vs.
Sangli Miraj Kupwada City Municipal Corporation, Sangli & Ors 2
where it was held that there is no need for the owner to seek a
declaration of the lapsing of reservation from the Court. The
relevant paragraph 16 read thus:
"16. ... After service of a valid notice under
section 127 to either the Appropriate Authority or the
Planning Authority, as the case may be, if steps as
contemplated by section 127 are not taken within
the period stipulated in the section the reservation
shall be deemed to have lapsed and the land in
respect of which the notice is issued shall be
deemed to be released from the reservation. Thus,
by operation of law the land stands released from the
reservation and the Planning Authority or Appropriate
Authority cannot treat the land as reserved. In fact
there is no need for the owner to seek a declaration
from the court of law on the basis of notice under
section 127. The effect of lapsing of reservation on
the basis of the notice is automatic....."
1 2023:BHC-AS:29348-DB
2 (2015) SCC OnLine Bom 659.
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(Emphasis added)
5. The law is abundantly clear. However, this Petition appears to
have been filed out of abundant caution.
6. The Petitioners own a part and parcel of land admeasuring
2.28 HR of Survey No. 201/3 situated within the limits of village
Pathardi, Tq & District Nasik ("said land"). The said land has been
sub-divided in 3 parts namely Survey Nos. 201/1 admeasures 1.10
HR, Survey No. 201/2 admeasures 1.9 HR and Survey No. 201/3
admeasures 2.28 HR. The Petitioners are concerned with Survey
No. 201/3 and the other two belong to Popat Keru Chaudhary and
Baban Keru Chaudhary. The sub-division of lands in 5 parts
amongst the Petitioners in the 7/12 extract is at exhibit "A" page 26
of this Petition.
7. The factual narrative is thus.
8. The said land was under reservation by Nasik Municipal
Corporation ('NMC') under the Government Notification No.
TPS-1193/2124/CR-126/95/UD-9 dated 19th February 1996 for
"Garden" and construction of "DP Road". This notification was
confirmed by another Government Notification No. TPS-1116/
C.R.No.140(B)2016/UD-9 by the Urban Development Department,
Mantralaya, Mumbai on 9th January 2017. Thus, the said land's
new reservation No. is 329 for "Garden".
9. There is no dispute that the said land has been reserved for
"Garden" and "DP Road" for more than 10 years and that no steps
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have been taken for acquisition by either any agreement or by
publication of declaration as contemplated under Section 126 of the
MRTP Act.
10. On 25 May 2011, the Petitioners issued and served a purchase
notice under Section 127 of the MRTP Act., upon the Respondents.
The same is annexed at Annexure "C" of the Petition at page 33.
On 7th June 2011, the 4th Respondent called upon the Petitioners to
submit certain documents. In response thereto, on 22 June 2011 the
Petitioners submitted the documents and the explanations sought
for from the Petitioners and communicated rejection of TDR
offered by the NMC.
11. There has been no communication since 7th June 2011 by the
Respondent Corporation. In these circumstances, the Petitioners
seek that the Petition be made absolute.
12. Mr Patil for the Respondent Nos. 2 to 4 admitted that
pursuant to the purchase notice, the Assistant Director of Town
Planning called upon the Petitioners to submit documents and a
response was received by them. He submitted that on 24th
November 2011 the standing committee passed a resolution
approving the proposal for acquisition of all the said lands. He
submitted that the Assistant Director of town planning by the letter
dated 3rd August 2011 stated that no TDR/FSI was given in respect
of the said lands. He fairly submitted that the proposal for joint
measurement of the lands was pending before the City Survey
Officer ("CSO"). The CSO on 13th June 2014 had issued a letter
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informing that the measurement of the land would be taken on 5th
July 2014. On 16 September 2014, Mr Patil submits that the deputy
collector land acquisition to Nasik wrote a letter to the CSO
requesting him to submit a joint measurement map. He thus
submitted that although the proposal for acquisition was submitted
on 22nd November 2011 still the joint measurement map has not
been submitted and hence the declaration under Section 19 of the
Right to Fair Compensation and Transparency in Acquisition,
Rehabilitation and Resettlement Act 2013 has not been issued and
further steps of acquisition could not be taken.
13. Mr Patil submits that presently the said lands continue to be
under reservation for the purpose of "Garden" under reservation
No. 329 in the Revised Development Plan that was sanctioned in the
year 2017. He submits that the Corporation does require the lands
for public purpose of "Garden" as well as "DP Road" and is even
today willing to give the DRC/TDR to the Petitioners for the land
admeasuring 17,650 sq mts. At the same time, Mr Patil submits that
the Corporation is going through financial difficulties since there are
several pending acquisition proposals and large amounts are needed
to complete the pending/completed acquisitions. In these
circumstances, he urged that the Petition be dismissed.
14. Heard both the counsels.
15. This issue is no longer res integra. In the case of Shivgonda
Anna Patil vs Sangli Miraj and Kupwad City, 3 referring to the cases of
3 Writ Petition No. 7962 of 2023 dated 4th October 2023 :2023:BHC-
AS:29348-DB
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Balkrishna Jagannath Lad vs Indian Postal Department & Ors, 4
Babanrao Dattu vs State of Maharashtra, 5 Bhavnagar University vs
Palitana Sugar Mill (P) Ltd,6 we took the view that once reservation
lapses in terms of Section 127 of the MRTP Act, just because,
subsequently, there is a Revised Development Plan or Final Revised
Development Plan, that does not automatically revive the lapsed
reservation.
16. Referring to Girnar Traders vs State of Maharashtra,7 we held
that lands cannot lie locked under reservation indefinitely. The
underlying principle is that the land given must be utilized for the
purpose for which it is reserved in the plan and if not done the
owner must be allowed to utilize the land as permissible under the
town planning law. We held that a failure of the authorities to take
steps which result in the actual commencement of acquisition of
land cannot be permitted to defeat the purpose and object of the
scheme of acquisition under the MRTP Act.
17. It would be worthwhile extracting the relevant paragraphs of
the case of Shivgonda Anna Patil vs Sangli Miraj (supra) where we
held as under:
"8. In the case of Balkrishna Jagannath Lad, and
referred to in case of Babanrao Dattu Versus State of
Maharashtra, a bench of coordinate strength of this
court, relying upon the case of Bhavnagar University
4 2015 SCC OnLine Bom 4737 : 2015 5 MhLJ 899.
5 2023 SCC OnLine Bom 1590.
6 (2003) 2 SCC 111.
7 (2007) 7 SCC 555.
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Versus Palitana Sugar Mill (P) Ltd, has taken the view
that once the reservation lapses in terms of Section
127 of the MRTP Act, just because there is a revised
development plan or final revised development plan,
the lapsing of the reservation does automatically
revive.
9. In Girnar Traders Versus State of Maharashtra,
the Supreme Court observed that the legislative intent
of the provisions under Sections 126 and 127 of the
MRTP is to expeditiously acquire the land reserved
under the Town Planning Scheme. Section 127 not
only permits inaction for a period of 10 years but gives
a further time to either 'acquire the land' or 'take
steps for acquisition", not just steps which may lead to
acquisition. Lands cannot lie locked under
'reservation' indefinitely. The underlying principle is
that the land must, in a given time, be utilized for the
purpose for which it is reserved in the plan, or, if not
done, the owner must be allowed to utilise the land as
permissible under the town planning law. A failure of
authorities to take steps which result in the actual
commencement of acquisition of land cannot be
permitted to defeat the purpose and object of the
scheme of acquisition under the MRTP Act by merely
moving an application requesting the Government to
acquire the land, which Government may or may not
accept.
10. Further, the Division Bench of this Court in case
of Ramakant Vasudeo Pai and later in Trilok Singh
Pahlajsing Rajpal and Ors Versus MCGM & Ors, after
adverting to various judgments held that the steps
towards acquisition would really commence when
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the State Government permits the acquisition and
as a result thereof publishes a declaration under
Section 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. It is a Section 6
declaration under the 1894 Act (or a Section 19
declaration under the 2013 Act) which would
commence the acquisition proceedings under the
MRTP Act and would culminate in the passing of an
award under Section 126(3) of the MRTP Act. Unless
and until a Section 6 /Section 19 declaration is issued,
it cannot be said that the steps for acquisition have
commenced."
(Emphasis supplied)
18. As can be seen from the factual matrix narrated by the
Petitioners, no steps as contemplated in law (narrated above) have
been taken by the NMC in this case. The principles of law laid down
by the Apex Court and this Court apply to the facts of this case. We
are bound by the said Judgments, which fully support the
Petitioner's case.
19. Thus, in view of the aforesaid settled law, and upon applying
such law to the undisputed facts in this case, the Petition is allowed
in terms of prayer clauses (A) and (B) which read thus:
"A. Issue Writ of Mandamus or any other
appropriate writ, direction or order thereby holding
and declaring that, the land of the petitioners
designated/ specified/ reserved for the garden under
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the old reservation no.17 admeasuring 17650 Sq.mtrs.
Situated at Survey No.201/3 and new survey number
329 of village Pathardi, Tq. & District Nasik (said land)
have lapsed as per the provisions of section 127 of the
Maharashtra Regional and Town Planning Act 1966
and further that the land of the petitioners are release
from the said reservation, allotment or designated and
have become available to the owner i.e. petitioners for
the purpose of development as otherwise, permissible
in law;
B. Issue Writ of Mandamus or any other
appropriate writ, direction or order directing
respondent State of Maharashtra to forthwith notify
the lapsing reservation of said land by an order /
notification published in the official gazette as required
under section 127 (2) of the Maharashtra Regional and
Town Planning Act, 1966; within 45 days from the
order of the Court."
20. The State Government is directed to notify the lapsing of the
reservation by an order to be published in the Official Gazette as per
the requirement of Section 127 (2) of the MRTP Act. This shall be
done as expeditiously as possible, preferably within six months from
today.
21. If the Petitioners submit any applications for development
permissions, they must be considered expeditiously and, in any
event, not later than within one year of their submission.
22. The rule is made absolute and this Petition is disposed of. No
order as to costs.
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23. All concerned to act on an authenticated copy of this order.
(Kamal Khata, J) (M.S. Sonak, J)
1st August 2024
