Bombay High Court
Ms Sai Sacchai Developers Through Its ... vs The State Of Maharashtra Through ... on 26 September, 2024
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
2024:BHC-AUG:22714-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3050 OF 2024
1. M/s Sai Sacchai Developers
Through its Partner,
Shri Vedant S/o Shirish Gadiya,
Age : 34 years, Occu. : Agril. & Business,
R/o Gut No. 40, Village Golwadi,
Tq. and Dist. Aurangabad.
2. Shri Girish S/o Narayan Pawar,
Age : 51 years, Occu. : Agril. & Business,
R/o Flat No. 1202, Empress Building,
Kalyan, Dist. Thane.
3. Mrs. Rutuja W/o Girish Pawar,
Age : 47 years, Occu. : Agril. & Business,
R/o Flat No. 1202, Empress Building,
Kalyan, Dist. Thane. .. Petitioners
Versus
1. The State of Maharashtra,
Through Department of Urban
Development, Mantralaya,
Mumbai - 32.
2. Principal Secretary,
Department of Urban
Development, Mantralaya,
Mumbai - 32.
3. The Collector,
Chhatrapati Sambhajinagar (Aurangabad).
4. Special Land Acquisition Officer,
(Special Unit),
Chhatrapati Sambhajinagar (Aurangabad).
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5. City Industrial and Development
Corporation Ltd. through its
Chief Administrator,
Udyog Bhavan, Town Centre,
Chhatrapati Sambhajinagar (Aurangabad).
6. Administrator, New Towns,
City Industrial and Development
Corporation ltd., Waluj Mahanagar,
Chhatrapati Sambhajinagar (Aurangabad).
7. The Additional Town Planning Officer,
CIDCO, Waluj Mahanagar,
Chhatrapati Sambhajinagar (Aurangabad).
8. Chhatrapati Sambhajinagar (Aurangabad)
Metropolitan Region Development
Authority, through its
Metropolitan Commissioner,
Divisional Commissioner Office,
Delhi Gate,
Chhatrapati Sambhajinagar (Aurangabad)... Respondents
Shri Devdatta P. Palodkar, Advocate for the Petitioners.
Mrs. Vaishali N. Patil-Jadhav, A.G.P. for the Respondent Nos. 1
to 4 and 8.
Shri Vaibhav P. Deshmukh, Advocate for Respondent Nos. 5 to 7.
CORAM : MANGESH S. PATIL AND
SHAILESH P. BRAHME, JJ.
CLOSED FOR JUDGMENT ON : 19.09.2024
JUDGMENT PRONOUNCED ON : 26.09.2024
JUDGMENT (Per Shailesh P. Brahme, J.) :
-
. Rule. Rule is made returnable forthwith. Heard both the
sides finally with consent at the admission stage.
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2. The petitioners are approaching this Court for the relief of
declaration that the reservation stands lapsed U/Sec. 127 of the
Maharashtra Regional and Town Planning Act, 1966 (for the
sake of brevity and convenience hereinafter referred as to the
"Act") and for consequential direction to issue notification U/Sec.
127(2) of the Act and to issue development permission to the
petitioners.
3. The petitioners are owners of 1H 01 Are land out of 6H 12
Are of gut No. 348 situated at Waluj (Bk), Tq. Gangapur, Dist.
Chhatrapati Sambhajinagr, Waluj Mahanagar - 3. Out of that
0H 58 Are of land was under reservation which is referred to as
'writ land' hereinafter. In the development plan a reservation is
clamped over it for the following purposes :
"Park, 24.00 & 150.00 M.W. DP Road and Balance
25% Pocket with substation to the extent of 0H 58R."
4. The respondent No. 5 is a Special Planning Authority
under the provisions of the Act for the purpose of carrying out
planned development in Waluj notified area. Lateron the
respondent No. 8 was appointed as Special Planning Authority
for planned development in Waluj notified area vide order dated
22.05.2023. The final development plan of Waluj notified area
was published on 14.08.2001 and it came into effect from
01.10.2001.
5. It is the case of the petitioners that since 14.08.2001 no
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steps have been taken towards acquisition of the writ land by the
Special Planning Authority. The petitioners could not develop
the writ land since then. They issued notice U/Sec. 127 of the
Act on 04.02.2019 to the Special Planning Authority -
respondent No. 5, which was served on 05.02.2019. The
necessary documents showing right, title and interests were also
forwarded along with the notice. No further steps were taken for
more than 24 months after receiving the notice. The petitioners
were informed by the letter dated 14.03.2019 by the respondent
No. 6 that it was resolved by the Special Planning Authority to
delete the land from Waluj notified area vide resolution dated
18.02.2019.
6. The learned counsel submits that no steps of acquisition
were taken as contemplated by Sec. 126 of the Act during the
stipulated period after the enforcement of final development plan
and also after receiving purchase notice and, therefore,
reservation in question stands lapsed. He relies on various
judgments mentioned in para No. 10 ground No. (v) of the
petition to buttress his submissions. It is further submitted that
the resolution passed by the Special Planning Authority for
deleting the writ land from the notified area and offering of
Transferable Development Rights (for short 'T.D.R.') would not
amount to steps towards acquisition of the land, as is expected
under Sec. 126 of the Act as well.
7. The learned counsel Mr. Deshmukh for the respondent Nos.
5 to 7, who are the contesting parties would oppose the
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submissions and the reliefs claimed by the petitioners with the
help of affidavit in reply. He would submit that the reservation is
clamped on the lands of notified area and the Planning Authority
decided to permit the land owners to develop their own lands. It
was resolved on 27.04.2017 to introduce revised and new
provisions in the development plan for the purposes enumerated
in para No. 6 of the reply. He would submit that the reservation
in question has been imposed with specific objective, for the
benefit of the locality. He would submit that for the reasons
stated in the affidavit in reply, the relief cannot be granted to the
petitioners. The answering respondents are ready to offer T.D.R.
to the petitioners. The purchase notice is illegal and the petition
is liable to be dismissed.
8. The respondents have not raised any dispute regarding
title and interest of the petitioners over the writ land. The
purchase notice issued on 04.02.2019 was served on the
concerned respondents on 05.02.2019. These facts are also not
disputed.
9. The writ land was under reservation since 01.10.2001 and
no steps have been taken towards acquisition of land for more
than ten years. Thereafter, no steps have been taken for more
than 24 months from 05.02.2019 i. e. receipt of purchase notice.
The petitioners have made out a case for declaration regarding
lapsing of reservation U/Sec. 127 of the Act.
10. We have gone through the affidavit in reply. None of the
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contentions would ensure to the benefit of the respondents to
exclude the writ land from lapsing of reservation. The
communication dated 14.03.2019 addressed by the respondent
No. 5 to the petitioners' lawyer intimating that the land was
proposed to be deleted from CIDCO notified area would be of no
avail, rather would constitute surrender of the objective with
which the reservation was clamped. The plea raised by the
respondents does not come within the purview of taking of steps
towards acquisition of land. In view of settled legal position as is
laid down from time to time in various judgments referred to by
the petitioners in para No. 10 ground (v) of the petition, we are of
the considered view that the petition deserves to be allowed.
11. The submissions of the respondent Nos. 5 to 7 that T.D.R.
can be offered to the petitioners cannot be said to be a ground to
deny the relief to the petitioners as laid down by the judgment of
the larger bench in the matter of Shri Vinayak Builders and
Developers Vs. State of Maharashtra in Writ Petition No.
2231 of 2019.
12. For the reasons stated above, we are inclined to grant relief
in the following manner.
ORDER
a) The writ land shall stand released from the reservation due
to its lapsing and the petitioners' shall be at liberty to develop
the same in accordance with law.
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b) The respondent Nos. 5 to 8 shall forward the proposal for
notification U/Sec. 127(2) of the Maharashtra Regional and Town
Planning Act, 1966 to the respondent No. 1/State Government
within a period of two (02) months from today and the
respondent No. 1 shall issue notification within a period of two
(02) months thereafter.
c) Rule is made absolute in above terms. There shall be no
order as to costs.
[ SHAILESH P. BRAHME, J. ] [ MANGESH S. PATIL, J. ]
bsb/Sept. 24
