Bombay High Court
Jyoti Balu Chate Through G. P. A. Holder ... vs The State Of Maharashtra Through The ... on 12 January, 2024
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2024:BHC-AUG:1342-DB
(1) wp 6395.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6395 OF 2022
Jyoti Balu Chate
Age: 36 Years, Occu: Household,
R/o. Shriram Mandir Chowk,
Mehrun, Jalgaon,
Tq. and Dist. Jalgaon.
Through G.P.A. holder
Balu Namdeo Chate
Age: 46 Years, Occu: Business,
R/o. Shriram Mandir Chowk,
Mehrun, Jalgaon,
Tq. and Dist. Jalgaon. ... PETITIONER
V/s.
1. The State of Maharashtra
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai.
2. District Collector, Jalgaon
Office of Collectorate, Jalgaon,
Dist. Jalgaon.
3. Special Land Acquisition Officer,
Jalgaon, Dist. Jalgaon.
4. Commissioner, Jalgaon City
Municipal Corporation, Jalgaon,
Dist. Jalgaon. ... RESPONDENTS
...
Mr. R.P. Adgaonkar, Advocate for the Petitioner
Mr. S.K. Tambe, AGP for Respondent-State
Mr. M.V. Navandar, Advocate for Respondent No.4
...
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CORAM : RAVINDRA V. GHUGE &
Y.G. KHOBRAGADE, JJ.
DATE : 12th January, 2024
JUDGMENT (Per: Y.G. Khobragade, J.) :
-
1. Rule. Rule made returnable forthwith and heard finally with the
consent of the parties.
2. By this petition under Article 226 of the Constitution of India, the
Petitioner has put-forth prayer clauses A and B as under:
"A] By appropriate writ order or directions in the nature of
writ, the Hon'ble Court may kindly please hold and declared that
the land admeasuring 81 R (8100.00 Sq. Mts.) out of land Gut No.
257/1, situated at Mehrun Shivar, Jalgaon as designated has
Reservation Site No. 170 for town hall and library (extended limit)
for Jalgaon City Municipal Corporation, is deemed to have been
released from the reservation and designation.
B] By appropriate writ order or directions in the nature of
writ, the Hon'ble Court may be please order or direct respondent
No. 1 to issue notification duly published in official gazette about
lapsing of reservation of admeasuring 81 R (8100.00 Sq. Mtr.) out
of land Gut No. 257/1, situated at Mehrun Shivar, Jalgaon and as
designated has reservation Site No. 170 for town hall and library
(extended limit) for Jalgaon City Municipal Corporation."
3. The learned advocate for Petitioner submits that, the Petitioner is
the owner of land Gut No. 257/1, situated at Mehrun Shivar, Jalgaon ad-
measuring 81 R (8100.00 Sq. Mtr.). The draft development plan for extended
limit of Jalgaon Municipal Corporation was finally sanctioned under
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notification dated 11.02.2002, which came into force w.e.f. 07.04.2002. As per
the Final Development plan, the Petitioner's land bearing Gut No. 257/1,
situated at Mehrun Shivar, Jalgaon admeasuring 81 R (8100.00 Sq. Mts.) was
reserved vide Site No. 170 for town hall and library (extended limit) for
Jalgaon City Municipal Corporation. Though, the development plan for
extended limit was sanctioned on 11.02.2002, but no steps were taken by the
Respondent No. 4 for acquisition of the land in question for more than 12
years. Therefore, on 12.02.2019, the Petitioner issued a notice under Section
127 of the Maharashtra Regional and Town Planning Act, 1966 (in short the
MRTP ACT) calling upon the Respondent No. 4 to acquire the reserved land.
The notice was served upon the Respondent No.4 on 14.02.2019. However, no
steps were taken by the Respondent No. 4 for acquisition of the land within the
period of 24 months from the date of service of notice u/s 127 of the MRTP
Act. Hence, prayed for lapsing of reservation.
4. The learned counsel for the Petitioner submits that, Section 127 of
MRTP Act provides that the notice can be issued only on fulfillment of two
conditions i.e. the period of ten years have lapsed after commencement of the
Development Plan and within a period of 10 years, a notification u/s 126(4) is
not issued. In the case in hand, though the land of the Petitioner is shown
under reservation vide Site No. 170 in development plan published on
(4) wp 6395.22
07.04.2002, but said land is not acquired within the period of 10 years, So also,
in spite of service of notice dated 29.12.2000 issued u/s 127, land was not
acquired. Hence, reservation is lapsed.
5. The Respondent No.4 - Development Authority filed a reply
affidavit and strongly resisted the petition. Mr. Navandar, the learned advocate
for Respondent No.4 submits that, on 11.02.2002 development plan for
Jalgaon City was published and came into force w.e.f. 01.10.2004. As per the
development plan, the land was reserved at Site No. 170 for Town Hall and
Library, but due to some exigencies acquisition proceeding could not be
initiated. On 12.02.2019, the Petitioner i.e. land owner issued a notice under
Section 127 of the M.R.T.P. Act claiming de-reservation. Since, the Writ land is
required for the development, therefore, on 29.05.2019, Respondent No. 4
issued a letter to the Petitioner and offered TDR, so also, issue in respect of
acquisition of petition land was discussed in the General Body of Respondent
No.4 and proposal for acquisition of the land was forwarded to the Collector
and State Government seeking appointment of the Commissioner under Section
162 (1) of the MRTP Act vide letter dated 18.10.2019. Accordingly, on
11.02.2020, the State Government appointed the Commissioner of Jalgaon
Municipal Corporation as a Special Officer to complete the acquisition
proceeding. The joint measurement was carried out and vide letter dated
(5) wp 6395.22
04.01.2022, Respondent No.3 informed the Respondent No.4 about checking
the correctness of measurement and had directed to deposit 50% of the amount
i.e. Rs.2,92,78,260/-. Therefore, Respondent No. 4 already started the process
about acquisition in respect of petition land, hence prayed for dismissal of the
petition.
6. It is not in dispute that the Petitioner is the owner of land Gut No.
257/1, situated at Mehrun Shivar, Jalgaon ad-measuring 81 R (8100.00 Sq.
Mtr.), which is subject matter of the present petition. The draft development
plan submitted by Respondent No.4 for extended limit of Jalgaon Municipal
Corporation was finally sanctioned under notification dated 11.02.2002, which
came into force w.e.f. 07.04.2002. As per the Final Development plan for the
Respondent No.4, the land bearing Gut No. 257/1, situated at Mehrun Shivar,
Jalgaon ad-measuring 81 R (8100.00 Sq. Mtr.) was reserved vide Site No. 170
for town hall and library (extended limit) for Jalgaon City Municipal
Corporation. Though development plan for extended limit for Respondent
No.4 was sanctioned on 11.02.2002 but no steps were taken by Respondent
No.4 for acquisition of the land in question for more than 12 years. The
surrounding area of subject matter of the petition land is already put for use of
residential purposes. Therefore, the Petitioner issued a notice dated 12.02.2019
under Section 127 of the MRTP ACT, calling upon Respondent No.4 to acquire
(6) wp 6395.22
the land reserved for the town hall and library. Accordingly, said notice was
served upon Respondent No.4 on 14.02.2019. Thereafter, the Petitioner was
called upon to submit measurement map, record of rights and copy of sale deed
vide letter dated 16.03.2019. Thereafter, Respondent No.3 prepared the
proposal with the noting that the Petitioner's land Gut No. 257 is required to
the District Collector. On 03.08.2019, Respondent No.4 passed the resolution
and offered Transferable Development Rights (in short "TDR"), but the
Petitioner refused to accept the TDR. Therefore, the development authority
acted upon the purchase notice. However, Respondent No.4 has not taken steps
to acquire the land within the period of 24 months from the date of service of
notice u/s 127 of the MRTP Act.
7. Section 127 of of the MRTP Act provides as under:
"127. Lapsing of reservations -(1) If any land reserved, allotted or
designated for any purpose specified in any plan under this Act is not
acquired by agreement within ten years from the date on which a final
Regional Plan, or final Development Plan comes into force or if
proceedings for the acquisition of such land under this Act or under
the Land Acquisition Act, 1894, are not commenced within such
period, the owner or any person interested in the land may serve notice
on the Planning Authority, Development Authority or as the case may
be, Appropriate Authority to that effect; and if within six months from
the date of the service of such notice, the land is not acquired or no
steps as aforesaid are commenced for its acquisition, the reservation,
allotment or designation shall be deemed to have lapsed, and
thereupon the land shall be deemed to be released from such
reservation, allotment or designation and shall become available to the
owner for the purpose of development as otherwise permissible in the
case of adjacent land under the relevant plan.
(7) wp 6395.22
(2) On lapsing of reservation, allocation or designation of any land
under sub-section (1), the Government shall notify the same, by an
order published in the Official Gazette."
8. In the case of Mohandas and Others Vs. State of Maharashtra and
Others; (2020) 12 SCC 215, the Hon'ble Supreme Court in Para Nos.38 and 39
observed as under:
"38. The only question is whether it is to be ignored in deciding
whether we should invoke Article 142 of the Constitution of India.
On 24-8-1984, the Final Development Plan is published. On 3-9-
1992, the declaration under Section 126(4) of the Act was
published. After expiry of ten years from 24-8-1984, notice was
given by the previous owners on 9-6-2004. Thereafter, draft
revised draft plan publication was made on 29-11-2007. Still,
thereafter, on 15-5-2012, a final revised development plan was
published. Although, under the original Final Development Plan
dated 24-8-1984, the property of the appellants was reserved for
shopping complex, and under the revised Final Development Plan
dated 15-5-2012, the appellants' lands have been subjected to the
reservation that it is meant for use as shopping complex and
vegetable market, apart from issuing the declaration, under Section
126(4) of the Act in the year 1992, there is no declaration issued
under the revised plan dated 15-5-2015. While, it is true that the
original Final Development Plan came into force on 24-8-1984 and
the revised development plan came into force in the year 2012, one
crucial fact cannot be overlooked. Admittedly, 9 the appellants
purchased lands from the erstwhile owners only on 2-1-2006.
Therefore, on the facts, particularly, having regard to the fact that
they have. purchased the property apparently knowing that the
property was subjected to reservation, and as also we have found
that their case, based on the notice of previous owners, would not
hold good in law and as the subsequent revision of the plan has
come into force with effect from 15-5-2012, we do not find that
this is a case where we should exercise our powers under Article
142 of the Constitution. The appellants cannot be compared with
the appellant in Hasmukhrai V. Mehta' as the appellant therein was
a person who was favoured with a permission to develop his land
on the basis that the land was meant for residential purpose and it
was he who went to court and the lapse of twenty years was in the
context found to have a deep impact.
(8) wp 6395.22
39. The appellants must wait for a period of ten years under
Section 127 of the Act from 15-5-2012 and then can issue notice
contemplated under the Act. That is, within a period of little over
two years from now, the appellants would have a cause of action to
give notice under Section 127 of the Act unless action is already
taken in the meantime. No doubt, we would expect that the
respondents would be alive to the object of the statute and also the
rights of the owners and will not act mechanically and unfairly in
the matter in the future. As far as invoking Section 49 of the Act, is
concerned, we do not express any view. Leaving open all the
remedies available to the appellants, the appeal shall stand
dismissed."
9. In the case of Prafulla C. Dave & others Vs. Municipal
Commissioner & Ors. (2005) 11 SCC 90, the Hon'ble Supreme Court observed
in Para Nos. 21 & 22 as under:
"21. Under Section 127 of the MRTP Act, reservation, allotment or
designation of any land for any public purpose specified in a
development plan is deemed to have lapsed and such land is deemed
to be released only after notice on the appropriate authority is served
calling upon such authority either to acquire the land by agreement or
to initiate proceedings for acquisition of the land either under the
MRTP Act or under the Land Acquisition Act, 1894 and the said
authority fails to comply with the demand raised thereunder. Such
notice can be issued by the owner or any person interested in the land
only if the land is not acquired or provisions for acquisition is not
initiated within ten years from the date on which the final
development plan had come into force. After service of notice by the
land owner or the person interested, a mandatory period of six months
has to elapse within which time the authority can still initiate the
necessary action. Section 127 of the MRTP Act or any other provision
of the said Act does not provide for automatic lapsing of the
acquisition, reservation or designation of the land included in any
development plan on the expiry of ten years. On the contrary upon
expiry of the said period of ten years, the land owner or the person
interested is mandated by the statute to take certain positive steps i.e.
to issue/serve a notice and there must occur a corresponding failure
on the part of the authority to take requisite steps as demanded therein
in order to bring into effect the consequences contemplated by
Section 127. What would happen in a situation where the land owner
or the person interested remains silent and in the meantime a revised
(9) wp 6395.22
plan under Section 38 comes into effect is not very difficult to fathom.
Obviously, the period of ten years under Section 127 has to get a
fresh lease of life of another ten years. To deny such a result would
amount to putting a halt on the operation of Section 38 and rendering
the entire of the provisions with regard to preparation and publication
of the revised plan otiose and nugatory. To hold that the inactivity on
the part of the authority i.e. failure to acquire the land for ten years
would automatically have the effect of the reservation etc. lapsing
would be contrary to the clearly evident legislative intent. In this
regard it cannot be overlooked that under Section 38 a revised plan is
to be prepared on the expiry of a period of 20 years from date of
coming into force of the approved plan under Section 31 whereas
Section 127 contemplates a period of 10 years with effect from the
same date for the consequences provided for therein to take effect.
The statute,therefore, contemplates the continuance of a reservation
made for a public purpose in a final development plan beyond a
period of ten years. Such continuance would get interdicted only upon
the happening of the events contemplated by Section 127 i.e.
giving/service of notice by the land owner to the authority to acquire
the land and the failure of the authority to so act. It is, therefore, clear
that the lapsing of the reservation, allotment or designation under
Section 127 can happen only on the happening of the contingencies
mentioned in the said section. If the land owner or the person
interested himself remains inactive, the provisions of the Act dealing
with the preparation of revised plan under Section 38 will have full
play. Action on the part of the land owner or the person interested as
required under Section 127 must be anterior in point of time to the
preparation of the revised plan. Delayed action on the part of the land
owner, that is, after the revised plan has been finalized and published
will not invalidate the reservation, allotment or designation that may
have been made or continued in the revised plan. This, according to
us, would be the correct position in law which has, in fact, been
clarified in Municipal Corporation of Greater Bombay vs. Hakimwadi
Tenants' Assn. in the following terms : (SCC p. 62, para 10)
"10. .... If there is no such notice by the owner or any
person, there is no question of the reservation, allotment or
designation of the land under a development plan of having
lapsed. It a fortiori follows that in the absence of a valid notice
under Section 127, there is no question of the land becoming
available to the owner for the purpose of development or
otherwise."
22. In fact the views expressed in Bhavnagar University in
para 34 is to the same effect: (SCC p. 123)
( 10 ) wp 6395.22
"34. ... The relevant provisions of the Act are absolutely
clear, unambiguous and implicit. A plain meaning of the said
provisions, in our considered view, would lead to only one
conclusion, namely, that in the event a notice is issued by the
owner of the land or other person interested therein asking the
authority to acquire the land upon expiry of the period
specified therein viz. ten years from the date of issuance of
final development plan and in the event pursuant to or in
furtherance thereof no action for acquisition thereof is taken,
the designation shall lapse."
10. Suffice for the purpose of this Petition, we refer to the decision of
Girnar Traders and Another Vs. State of Maharashtra and others; 2007 AIR
(SC) 318, wherein, it has been laid down that, the steps in the direction of
acquisition of land reserved under the provisions of the MRTP Act would be
nothing short of a declaration under Section 6 of the Land Acquisition Act 1894
(analogous to Section 19 of the Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement Act, 2013) read with
section 126 of the MRTP Act. Admittedly, no such steps have been taken for
whatever reason.
11. Though, it is stated about offering of the TDR in lieu of
compensation, no such offer letter is produced on record. Be that as it may, the
learned advocate for the petitioners, on instructions, stated that they are not
ready to accept the TDR in lieu of compensation. Moreover, the right of
property owners to insist for payment of monetary compensation by refusing
( 11 ) wp 6395.22
TDR is also settled by the full bench decision of this court in the matter of
Vinayak Builders & Developers Vs. The State of Maharashtra and others (Writ
Petition No. 2231 of 2019) dated 25.07.2022 (Nagpur Bench), wherein it has
been laid down that it is the choice of the property owner either to accept the
TDR or to insist for payment of compensation.
12. In the case in hand, under notification dated 11.02.2002,
development plan was published by Respondent No.4 and which came into
force w.e.f. 07.04.2002. Under the Final Development plan, the Petitioner's
land bearing Gut No. 257/1, situated at Mehrun Shivar, Jalgaon admeasuring
81 R (8100.00 Sq. Mtr.) reserved vide Site No. 170 for town hall and library for
Jalgaon City Municipal Corporation. Though development plan for extended
limit for Respondent No. 4 was sanctioned on 11.02.2002, but no steps were
taken by the Respondent no. 4 for acquisition of the land in question for more
than 12 years.
13. The Petitioner issued a notice dated 12.02.2019 under Section 127
of the MRTP ACT and called upon the Respondent No.4 to acquire reserved
land. Said notice was served upon the Respondent No.4 on 14.02.2019.
Thereafter, the Petitioner was called upon to submit measurement map, record
of rights and copy of sale deed vide letter dated 16.03-.019. Accordingly, the
Petitioner complied with the said notice. Thereafter, the Respondent No.3
( 12 ) wp 6395.22
prepared the proposal with the official note-sheet about requirement of the
Petitioner's land Gut no. 257/1 to the office of District Collector. On
03.08.2019, Respondent No. 4 passed the resolution and offered the TDR, but
the Petitioner refused to accept TDR. Therefore, the development authority
acted upon the purchase notice. No doubt, on 29.05.2019 the Respondent
No.4 issued a letter to the Petitioner and offered TDR, but Respondent No.4 has
not brought any substantial material on record to show that the Petitioner had
accepted TDR. Further, though Respondent No.4 contended that on
11.02.2020, the State Government appointed the Commissioner of Respondent
No.4 as a Special Officer to conduct the joint measurement and complete the
acquisition proceedings and was directed to deposit 50% of the amount i.e.
Rs.2,92,78,260/-, Respondent No.4 has not brought any material on record to
show that the said amount has been paid to the Petitioner. Therefore, it
appears that for want of funds no acquisition proceeding has been completed.
Apparently, Respondent No. 4 has not taken steps to acquire the land within a
period of 24 months from the date of service of notice u/s 127 of the MRTP
Act. Therefore, reservation of land has lapsed.
14. In view of the above discussion and considering the ratio laid
down in the case of Girnar Traders (supra), we are inclined to allow the Writ
Petition and declare that, the reservation on land of the Petitioner ad-
( 13 ) wp 6395.22
measuring 81 R (8100.00 sq.mtr.) out of land Gut No. 257/1, stands lapsed.
The Respondents shall take steps for issuance of notification under Sub-section
2 of Section 127 of the MRTP Act as early as possible.
15. Rule is made absolute in above terms.
[Y.G. KHOBRAGADE, J.] [RAVINDRA V. GHUGE, J.]
mub
