Bombay High Court
Lilabai Champalal Chajjed And Others vs The State Of Maharashtra Through ... on 2 February, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:3508-DB
(1) wp 8355.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8355 OF 2023
LILABAI CHAMPALAL CHAJJED AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS
...
Advocate for the Petitioner : Mr. Syed Azizoddin R.
AGP for Respondents/State : Mr. P.K. Lakhotiya
Advocate for R/4 : Mr. M.V. Bhamre
...
CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 2nd February, 2024
ORDER (Per: Y.G. Khobragade, J.) :
-
1. By the present petition, the Petitioners have put-forth prayer
clause-C to F as under:
"C) This Hon'ble Court may be pleased to issue appropriate writ,
order or directions to hold and declare that the land Survey
No.50/1A to the extent of 2 H 43 R situated at Dondaicha Tq.
Dondaicha Dist. Dhule is de-reserved and available for development
and further direct the respondents to publish the Notification in the
Government Gazette to that effect.
D) This Hon'ble Court may be pleased to issue appropriate writ,
order or directions to the respondents to de-reserve and release the
Survey No.50/1A to the extent of 2 H 43 R situated at Dondaicha
Tq. Dondaicha Dist. Dhule from reservation and issue permission to
develop the same in accordance with law.
In the alternative
E) This Hon'ble Court may be pleased to issue appropriate writ,
order or directions to the respondents to de-reserve and release the
(2) wp 8355.23
Survey No.50/1A to the extent of 2 H 43 R situated at Dondaicha
Tq. Dondaicha Dist. Dhule from reservation under section 50(2) of
the Maharashtra Regional and Town Planning Act since the same is
not required for public purpose designated for ITI.
F) This Hon'ble Court may be pleased to issue appropriate writ,
order or directions to the respondents to acquire the land Survey
No.50/1A to the extent of 2 H 43 R situated at Dondaicha Tq.
Dondaicha Dist. Dhule and pay the compensation to the petitioners
within three months."
2. Having considered the strenuous submissions of the learned
advocate appearing for the respective sides, we have gone through the record.
The following dates and events which are undisputed are as under:
a) The Petitioners are the owners of property bearing Survey No.50/1A to
the extent of 2 H 43 R situated at Dondaicha within the limits of the Municipal
Council-Respondent No.4.
b) The development plan of the Respondent No.4-Municipal Council was
sanctioned by the Competent Authority on 31.10.1981 and the Petitioners'
property bearing Survey No.50/1A was reserved vide Site No.26 for Industrial
Training Institute (ITI).
c) The Respondent No.4 have not taken any steps for acquisition of reserved
land for more than four decades.
(3) wp 8355.23
d) On 22.06.2000, the Petitioners have issued purchase notice under
Section 127 of the MRTP Act as the Respondent No.4 failed to acquire the land
for more than 10 years and the said notice was duly served upon Respondent
No.4, but Respondent No.4 still have not acquired the reserved land even after
lapse of 24 months.
e) On 05.07.2012, the Respondent No.4-Municipal Council passed a
Resolution No.15 for de-reserving the property of the Petitioners and further
resolved to initiate action in pursuance of Section 37 of the MRTP Act.
f) The State Government issued a communication to the Petitioners stating
that, on 03.04.2012 the scheme of redevelopment plan has been sanctioned
which came into force w.e.f. 15.05.2012, and therefore the notice under
Section 127 is premature.
3. It is obvious that, the Municipal Council has not initiated specific
steps for acquisition of the said land as is required under Section 126(2). The
law laid down by the Hon'ble Supreme Court in case of Girnar Traders V/s.
State of Maharashtra; 2007 7 SCC 555 and by this Court in case of Santu
Sukhdeo Jaibhave and Others V/s. Nashik Municipal Corporation; 2023 (2)
Bom. C.R. 469, it has held that steps for acquisition would mean issuance of the
(4) wp 8355.23
declaration under Sec. 6 of the Land Acquisition Act r/w Sec. 126 of the
M.R.T.P. Act. The same admittedly is not issued till date.
4. In similar set of facts of this case, on 03.05.2023 the Coordinate
Bench of this Court (Coram: N.W. Sambre & S.G. Chapalgaonkar, JJ.) in Writ
Petition No.8996 passed the Judgment and held in Para Nos. 7, 8, 9 and 10 as
under:
"7. We have heard the learned counsel appearing for the
respective parties. There is no dispute that the petitioner is owner of
the land Survey No. 105/1A+1B situated within the limit of municipal
council Dondaicha-Varwade The land has been shown reserved under
the development plan that was enforced w.e.f. 31.10.1981 under
MRTP Act. No steps were taken for acquisition of the land shown
under reservation Site No. 10 for Cottage Hospital. The petitioner
served purchase notice dated 8.3.2011 in terms of Section 127 of the
MRTP. In response to said notice, the municipal Council passed
resolution dated 9.3.2012 to not go for acquisition of land reserved.
Subsequently, the revised Development Plan has been enforced w.e.l.
28.12.2012. The petitioner has not served fresh notice after revised
Development Plan came into force. However, fact remains that the
Municipal Council has not taken any step for acquisition of the land in
terms of the purchase notice of the petitioner.
8. Mr. Manish Bhamre Learned counsel appearing for the
respondent Municipal Council would submit that the notice served by
the petitioner is different than the notice that has been placed on
record of this Court. However, such contention appears to be
fallacious and artificial. We observe that resolution dated 5.7.2012
clearly refers to the purchase notice served by the petitioner and
consequential decision arrived at in the general body meeting of the
Municipal council to not to acquire land of petitioner. In that view of
the matter, we have no hesitation to accept the contention of the
petitioner that he has served purchase notice in terms of Section 127
of the MRTP Act to the respondent Municipal Council.
(5) wp 8355.23
9. The contents of the resolution passed by the Municipal
Council dated 5.7.2012 would show that there is no dispute regarding
petitioner's ownership of the land bearing Survey No. 105/1A+1B
situated at Dondaicha. The purchase notice dated 8.3.2011 depicts that
the 7 x 12 extract was made part of the notice served upon the
Municipal Council. In that view of the matter, there is sufficient
compliance of Section 127 of the MRTP Act. The Municipal Council
has passed resolution not to acquire the land in pursuance of the
service of purchase notice. No steps for the acquisition of land in
terms of Section 126 of the MRTP Act r/w Land Acquisition Act of
1894 Or 2013 have been initiated during statutory period of two years
after service of purchase notice to the respondent Municipal Council.
Therefore, we have no hesitation to hold that reservation is deemed to
have been lapsed by operation of law.
10. The next contention of the respondent is that, revised
Development Plan has been enforced w.e.f. 28.12.2012 before expiry
of period of 2 years of service of purchase notice by the petitioner.
The land in question is again notified as reserved under the revised
Development Plan and the petitioner was required to wait for further
period of ten years. Such contention cannot be accepted for the reason
that the petitioner has served purchase notice in terms of Section 127
of the MRTP Act when Development Pian sanctioned on 31st
October, 1981 was operational. The revised development plan came
into effect after one and half years after service of purchase notice
under Section 127 of the MRTP Act. The right of the petitioner has
been crystallized. This Courtin the matter of Kesaranand Ginning and
Pressing Factory and another Vs. State of Maharashtra in (W.P. No.
8978 of 2015 decided on 25.2.2016) has dealt with the same issue
pertaining to same reservation and upheld the contention of the
petitioners therein that the right has been accrued in their favor and
reservation stood lapsed."
5. Being aggrieved by the said judgment, the Respondent No.4-
Municipal Council approached the Hon'ble Supreme Court by filing Special
Leave to Appeal (Civil) No.16968/2023 (Dondaicha Varwade Municipal
Council V/s. Natwarlal Dhanjibhai Vora & Ors.), however, on 14.08.2023 the
(6) wp 8355.23
Hon'ble Supreme Court dismissed the said appeal and affirmed the order of
Coordinate Bench of this Court.
6. The issue pertaining to non acceptance of TDR by the Petitioner is
no more res integra as per the ratio laid down in the judgment of this Court
delivered in the case of Shri Vinayak Builders & Developers Vs. The State of
Maharashtra and Ors.; 2022 (4) Mh.L.J. 739.
7. In the case in hand, though the land of the Petitioners is reserved
under the development plan as Site No.26 for ITI on 31.10.1981, but said
property has not been acquired for more than four decades by the Respondent
No.4. Further the development plan dated 03.04.2012 was revised w.e.f.
15.05.2012, but prior to that, the Petitioners have issued the notice dated
03.08.2011, but Respondent No.4 has not taken any steps even after lapse of
24 months. It is trite law that the subsequent revised development plan which
is more than decade after the issue of notice u/s 127 of the M.R.T.P. Act would
not affect the right of the Petitioners crystallized earlier as held by the Hon'ble
Supreme Court in case of Godrej and Boyce Manufacturing Co. Ltd., vs- State of
Maharashtra & Ors., decided on 21-01-2015 in Civil Appeal No. 1086 of 2015.
8. In view of the above discussion, this petition is allowed in terms of
prayer clause C, D and E. Respondent No.4 is hereby directed to forward the
(7) wp 8355.23
proposal to the Respondent No.1 within a period of 30 days from today. After
receipt of the said proposal, Respondent No.1 would issue the notification
under Section 127(2) of the MRTP Act within a period of 60 days.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
