Bombay High Court
Prabhakar Ramdas Kale And Others vs The State Of Maharashtra Through ... on 23 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:1777-DB
WP-15224-2023-Judgment.odt
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 15224 OF 2023
1. Prabhakar Ramdas Kale
Age:56 years, Occu: Agri.
R/o. 122, Maroti Peth,
Old Jalgaon, Jalgaon,
Taluka & District Jalgaon
2. Dnyaneshwar Nivrutti Kale
Age: 58 years, Occu: Agri.,
R/o. 7, Ram Peth, Old Jalgaon,
Jalgaon, Taluka & District Jalgaon
3. Vijay Nivrutti Kale
Age: 54 years, Occu: Agri.,
R/o. 7, Ram Peth, Old Jalgaon,
Jalgaon, Taluka & District Jalgaon
4. Umesh Subhash Kale
Age: 34 years, Occu: Agri.,
122, Maroti Peth, Old Jalgaon,
Jalgaon, Taluka & District Jalgaon
5. Vaibhav Subhash Kale
Age: 27 years, Occu: Agri.,
122, Maroti Peth, Old Jalgaon,
Jalgaon, Taluka & District Jalgaon
6. Smt. Rekha Subhash Kale
Age: 51 years, Occu: Household,
122, Maroti Peth, Old Jalgaon,
Jalgaon, Taluka & District Jalgaon ... PETITIONERS
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VERSUS
1. The State of Maharashtra
Through Principal Secretary,
Urban Development Department,
Mantralaya, 1st Floor, Mumbai - 400 021
2. Collector, Jalgaon
Taluka & District Jalgaon
3. Director,
Town Planning Department,
Maharashtra State, Pune
Central Offices, Old Building,
Pune - 411 001
4. Assistant Director
Town Planning Department,
Jalgaon City Municipal
Corporation, Jalgaon
5. Jalgaon City Municipal Corporation,
Through its Commissioner,
Neharu Chauk, Jalgaon,
Taluka & District Jalgaon ... RESPONDENTS
....
Mr. Mahesh Deshmukh, Advocate h/f Mr. S. H. Tripathi, Advocate for
Petitioners
Mr. A. B. Girase, Government Pleader for Respondent Nos. 1 to 3
Mr. S. B. Munde, Advocate for Respondent Nos. 4 and 5
....
CORAM : RAVINDRA V. GHUGE AND
Y. G. KHOBRAGADE, JJ.
DATE : 23.01.2024
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JUDGMENT (Per : Y. G. Khobragade, J.) :
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1. Rule. Rule made returnable forthwith and heard finally by
the consent of the parties.
2. The Petitioners have put-forth prayer clauses [B] and [C]
as under:
"[B] The Hon'ble High Court may kindly be pleased to issue
appropriate writ, order or direction in the nature of writ, and
thereby declare that the land Gat No.27/3 admeasuring 2 H 06
R situated at Khedi Budruk, Taluka & District Jalgaon, is free
from any encumbrance of reservation more particularly from
reservation no. 223 (Play Ground) as reserved in final
development plan of Jalgaon (Additional Area).
[C] The Hon'ble High Court may kindly be pleased to issue
appropriate writ, order or direction in the nature of writ, and
direct the respondents to notify the lapsing of reservation by
publishing notification in Official Gazette under section 127(2)
of MRTP Act, forthwith."
3. The learned Counsel appearing for the Petitioners
canvassed that, Respondent No.5 published the development plan on
10.08.2004, which came into force w.e.f. 01.10.2004. Under the
development plan, the Petitioners' land is shown under reservation
No. 223 for play ground and 18 meter D. P. Road. However, even after
lapse of more than 14 years, Respondent No.5 Municipal Corporation
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failed to acquire said land. Therefore, on 17.03.2018, the Petitioners
were issued purchase notice under Section 127 of the Maharashtra
Regional and Town Planning (MRTP) Act, which was duly served
upon Respondent no. 5, but no land has been acquired within period
of two years from the service of notice. Therefore, reservation lapsed.
4. On the other hand, the learned Counsel appearing for
Respondent No.5 vehemently canvassed that presently Respondent
No.5 Municipal Corporation is facing financial crises and due to
paucity of fund, no compensation for acquisition of the reserved land
can be paid. However, the learned Counsel appearing for Respondent
No.5 submits that, the land show under reservation is required,
hence, prayed for grant of one year time for the acquisition of the
same. In support of these submission the learned counsel for the
petitioner relied on the case of Municipal Corporation of Greater
Mumbai Vs. Hiraman Sitaram Deorukhar - (2019) 14 SCC 411.
5. Having considered the strenuous submissions of both
sides, we have gone through the record. Though the Respondents
have been granted opportunity, they failed to file a reply. On the face
of the record, the following dates and events are undisputed :
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a) The development plan of the Jalgaon Municipal
Corporation was sanctioned on 10-08-2004 and the same
came into force on 01-10-2004.
b) Vide reservation no. 223, the Petitioner's land bearing Gat
No. 27/3 ad-measuring 2 H 06 R situated at Khedi
Budruk, Taluka and District Jalgaon, was reserved for a
Play Ground.
c) No steps for acquisition were taken within a period of
more than ten years.
d) The Petitioner issued a purchase notice under Section 127
of the MRTP Act on 17.03.2018 along with copy of 7/12
extract of the land, which has duly served upon
Respondent no. 5 Municipal Corporation, Jalgaon, but no
steps for acquisition of land have been initiated.
6. It is obvious that the Respondent No. 5 Municipal
Corporation 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 Girnar Traders V/s. State of Maharashtra;
2007 7 SCC 555 and by this Court in Santu Sukhdeo Jaibhave and
Others V/s. Nashik Municipal Corporation; 2023 (2) Bom. C.R. 469,
is squarely applicable.
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7. Needless to say that, Respondent no. 5 contended that it
requires further period of one year to complete acquisition proceeding
of reserved land and to pay compensation due to it's poor financial
condition.
8. On perusal of facts the case of Laxmikant and Others Vs.
State of Maharashtra and others, 2022 SCC OnLine 349, it appears
that vide order dated 6.8.2021 passed this court had granted one year
time to acquire land once reserved by relying upon the judgment of
the Supreme Court in case of Municipal Corporation of Greater
Mumbai v/s Hiraman Sitaram Deorukhar, (2019) 14 SCC 411 . However , in
para 7 , the Hon'ble Supreme Court observed as under:
"7. This Court in Municipal Corporation of Greater Mumbai
held that the authorities have been given a duty to act as a
cestui que trust (beneficiary of the trust) with respect to public
park and had thus directed to acquire land under the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 within a period of
six months. Such direction was given under Article 142 of the
Constitution of India keeping in view the facts of the case. Such
direction and period for acquisition of land is not a law
declared by this Court which is to be treated as binding
precedent for this Court and the subordinate courts subordinate
in terms of Article 141 read with Article 144 of the
Constitution. Therefore, once the Act does not contemplate any
further period for acquisition, the Court cannot grant additional
period for acquisition of land. The land was reserved for a
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public purpose way back in 2002. By such reservation, the land
owner could not use the land for any other purpose for ten
years. After the expiry of ten years, the land owner had served
a notice calling upon the respondents to acquire the land but
still the land was not acquired. The land owner cannot be
deprived of the use of the land for years together. Once an
embargo has been put on a land owner not to use the land in a
particular manner, the said restriction cannot be kept open-
ended for indefinite period. The Statute has provided a period
of ten years to acquire the land under Section 126 of the Act.
Additional one year is granted to the land owner to serve a
notice for acquisition prior to the amendment by Maharashtra
Act No. 42 of 2015. Such time line is sacrosanct and has to be
adhered to by the State or by the Authorities under the State. "
9. Therefore, once a legal embargo is put on the reserved
land u/s 126 of the MRTP Act, no further period can be extended
beyond the period stipulated under the statute. Therefore, additional
one year can not be granted for acquisition of the reserved land once
lapsed due to failure within the stipulated period.
10. In view of the above, this Writ Petition is allowed. The
reservation is declared to have lapsed. Accordingly, the Municipal
Corporation shall communicate to Respondent No.1, within 30 days.
Within 45 days thereafter, Respondent No.1 shall issue a notification
under Section 127 (2) of the MRTP Act, declaring that the reservation
has been lapsed.
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11. Rule is made absolute in the above terms.
[ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]
SMS
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