Bombay High Court
Swami Samarth Builders And Developers, ... vs State Of Maha., Thr. Secretary, Revenue ... on 30 August, 2024
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2024:BHC-NAG:9755-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 7228 OF 2022
Swami Samarth Builders and Developers,
a registered partnership firm through
its authorised partner
Mr. Vijaykumar Narayandas Harkut,
aged about 72 yrs, Occ. Business,
resident of Paratwada Road,
Chandur Bazar, District Amravati
and having an office at Shilangan
Road, Ganesh Colony, Amravati. ...... PETITIONER
...V E R S U S...
1. State of Maharashtra,
through its Secretary, Revenue
Department, Mantralaya,
Mumbai 32
2. The Municipal Council,
Wardha, through its
Chief Officer, Wardha
District Wardha
3. The Assistant Director of
Town Planning, Wardha,
Office at Municipal Corporation,
Wardha.
4. The Development Authority,
Municipal Corporation, Wardha,
District Wardha
5. The Chief Executive Officer,
Municipal Corporation, Wardha,
District Wardha.
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6. Director of Town Planning,
Maharashtra State,
Office at Central Offices,
Pune 411 001 .....RESPONDENTS
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Mr. Alok H. Daga, Advocate for the petitioner.
Mr. A.M. Kadukar, Assistant Government Pleader for respondent
Nos. 1and 6.
Mr. M.I. Dhatrak, Advocate for Respondent No. 2.
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CORAM:- NITIN W. SAMBRE & ABHAY J. MANTRI, JJ.
CLOSED FOR JUDGMENT ON :22.07.2024
JUDGMENT PRONOUNCED ON :30.08.2024
JUDGMENT (Per : Abhay J. Mantri, J.)
1. Rule. Heard finally, by the consent of the learned
counsel for the parties.
2. The petitioner has invoked the writ jurisdiction of this
Court to seek relief of declaration that the reservation over the land
owned by it shall be deemed to have lapsed under Section 127 of
the Maharashtra Regional Town Planning Act, 1966 (for short, " the
Act") and the land be released to it.
3. The relevant facts that arise for consideration are as
under:
The petitioner firm owns land bearing CTS No. 5571,
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admeasuring 2994 Sq. Mtrs. Out of a total area of 19,889.91 Sq.
Mtrs. of the village, Tahsil and District Wardha. (hereinafter referred
to as -The Land) The respondent No. 2 Municipal Council, Wardha,
has prepared a Revised Development Plan for the entire Wardha
Division. Accordingly, on 20.09.1997, a Draft Development Plan
was published. On 13.11.1997, notice was published in the Official
Gazette to that effect to call upon suggestions and objections. After
considering the suggestions and objections, respondent No. 2
modified the plan in accordance with Section 28 of the Act and
forwarded the same for sanction as per sub-section (1) of Section 30
vide its Resolution dated 12.11.2000 to respondent No. 6.
Respondent No. 6 sanctioned the Development Plan submitted by
respondent No. 2 vide Notification dated 09.01.2004 which came
into force from 25.02.2004.
4. As per the Notification, the land of the petitioner firm
was reserved for extension of market-cum-shopping centre vide
Reservation No. 20. However, the respondents failed to take a step
to acquire said land till 31.01.2021; therefore, on 16.03.2020, the
petitioner issued purchase notice under Section 127 of the Act to
respondent No. 2. Said notice was served on respondent No. 2 on
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17.03.2020. The notice was replied to by a letter dated 15.06.2020,
asking for a map of the land. In response, the petitioner supplied a
map on 25.06.2020 to respondent No. 2. Thereafter, respondent No.
2, vide communication dated 01.09.2020, demanded the map.
Respondent No. 2, then vide letter dated 22.11.2021, intimated to
the petitioner that limitation for notice under Section 127 will be
counted from 03.08.2021 as the petitioner has submitted the map of
the land on that day.
5. Respondent No. 2, in a communication dated
03.02.2020, informed the petitioner that the Council is ready to
acquire the land for consideration of Transferable Development
Rights ("TDR"). However, in a reply dated 08.03.2022, the
petitioner conveyed disagreement with respondent No. 2's proposal
of compensation in terms of TDR and demanded monetary
compensation as per the prevailing market rate.
6. It is contended that till 18 years, respondent No. 2 failed
to acquire the land, so also disputed the service of purchase notice
dated 07.03.2020. Further, respondent No. 2 failed to initiate any
action to acquire the land for 24 months nor issued any declaration
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under Section 6 of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for
short, "the Act of 2013") therefore, this petition.
7. Respondent No. 2 - Municipal Council has resisted the
petition on the ground that the same is not maintainable as prior to
the completion of two years from 03.08.2021, the petitioner has
filed this petition. However, the respondent has not disputed the
reservation of the land of the petitioner firm vide Reservation No.
20 dated 09.01.2004. It is to be noted that respondent No. 2
admitted service of notice under Section 127 of the Act and
contended that the same was received on 20.03.2020 instead of on
17.03.2020. It is further contention that the petitioner submitted a
revised measurement sheet on 03.08.2021; therefore, the period of
24 months will lapse on 02.08.2023. However, before that, i.e. on
05.09.2022, the petition has been filed. Hence, the same is
premature and liable to be rejected. Respondent No. 2 has not
disputed the refusal to accept the offer of TDR. Lastly, it is averred
that even assuming the notice was served on 20.03.2020, the same
was not served in view of the provisions under Section 127 of the
Act; hence, prayed for dismissal of the petition.
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8. The learned counsel for the petitioner has vehemently
submitted that despite service of purchase notice under Section 127
of the Act, respondent No. 2 failed to take steps to acquire the land
within a period of 24 months; therefore, as per the settled legal
position of law, the reservation deemed to be lapsed.
9. To substantiate the contention, the learned Counsel has
drawn our attention to the judgment of the Division Bench of this
Court in the case of Vinayak Builders and Developers Vs. State of
Maharashtra (2022) DGLS(Bom) 2061 and canvased that said issue is
covered by the judgment wherein it is held that "mere approval of
the request of the land owner to grant of monetary compensation or
grant of TDR/FSI in lieu of compensation by itself will not always
result in a concluded contract and the land owner can withdraw his
request and refuse or decline to surrender the land as long as there
is no concluded contract between the parties.
10. Per Contra, the learned Counsel for respondent No. 2
strenuously argued that the petitioner submitted a revised
measurement sheet with it on 03.08.2021 and therefore, from
03.08.2021, the period of 24 months has to be counted, and that
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period expires on 02.08.2023. Hence, the petition, being premature,
is liable to be dismissed. It is further contended that, in the notice, it
was mentioned that within a statutory period of 12 months from the
date of service of notice, appropriate steps be taken for the
acquisition of the land and, therefore, issuance of the notice was
bad in law; hence, urged for dismissal of the petition.
11. We have considered the rival submissions and perused
the case record. Having considered the record and the documents,
at the outset, it seems that respondent No. 2 is not disputing the
reservation of land vide Reservation No. 20. So also, it is undisputed
that respondent No.2 served with notice under Section 127 of the
Act on 17/20.3.2020. Despite the service of notice, respondent No.
2 failed to comply with the same by taking steps for the acquisition
of the land within 24 months, i.e. till 19.03.2022.
12. The only point raised by respondent no. 2 is that on
03.08.2021, the petitioner submitted a measurement sheet;
therefore, from 03.08.2021, the period of 24 months is required to
be calculated. However, he failed to point out on which basis the
statement was made or from where he got the method to calculate
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the period of 24 months. As per section 127 of the Act, said period
has to be counted from the date of service of notice. Even assuming
the argument of respondent No.2, it seems that, though the petition
was filed on 05.09.2022, till 02.08.2023, the same was pending,
and no order was passed in the matter. Respondent has filed a reply
to the petition on 29.08.2023. In that eventuality, we do not find
substance in the contention of learned counsel for respondent No.2
that the petition is premature or that the petitioner is not entitled to
claim the relief as 24 months have not been completed from
03.08.2021.
13. Secondly, the respondent offered compensation in the
form of TDR, which the petitioner refused vide communication
dated 08.03.2022 and requested to pay monetary compensation as
per the prevailing market rate. However, respondent No.2 failed to
comply with the same nor acquire the land within 24 months from
the date of receipt of the notice. Thus, as per the law laid down in
the case of Vinayak Builders (supra), "mere approval of the request
of land owner to grant of monetary compensation or grant of TDR/
FSI in lieu of compensation by itself will not always result in a
concluded contract and the acquisition would have to be
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determined in the facts and circumstances of each case and
therefore, the land owner can withdraw his request and refuse or
decline to surrender the land as long as there is no concluded
contract between the parties." are applicable. In the case at hand,
the petitioner has refused to accept the compensation in the form of
TDR, and therefore, as per the dictum laid down in the case of
Vinayak Builders (supra), the landowner can withdraw his request.
Thus, as per Section 127 of the Act, the petitioner is entitled to the
relief as prayed.
14. In view of the discussion supra and the averments made
in the petition as well as the dictum laid down in the case of
Vinayak Builders, we are of the opinion that respondent No. 2
Municipal Council has failed to comply with the provisions under
Sections 126 and 127 of the Act. As such, the petitioner is entitled
to the relief of declaration that the land reserved vide Resolution
No. 20 shall be deemed to have been lapsed under Section 127 of
the Act.
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15. In this background, we deem it appropriate to allow the
petition.
i) The petition is allowed.
ii) It is hereby declared that Reservation No. 20 affecting
the petitioner's land stands lapsed in view of the
provisions under Section 127 of the Act.
iii) Respondent No. 3 is directed to issue a Notification
indicating the lapsing of reservation over the land in
question within a period of 8 weeks from the date of
production of a copy of this judgment and order.
iv) As a sequel of the above, the order dated 25.07.2022
passed by respondent No. 2 is quashed and set aside.
v) Needless to clarify, the petitioner is free to
use/develop the land in accordance with the law for the
purpose for which the development of the adjoining land
is permissible.
16. The petition is allowed in the above terms.
(ABHAY J. MANTRI, J.) (NITIN W. SAMBRE, J.)
Signed by: Mr. R. S. Belkhede R. Belkhede,
Designation: PA To Honourable Judge Personal Assistant
Date: 31/08/2024 10:29:27
