Bombay High Court
Shri. Vijay Deviprasad Tiwari Thru Ca ... vs State Of Maharashtra Through Prin. ... on 29 April, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:19342-DB
Osk J-WP-2430-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 2430 OF 2023
Shri Vijay Deviprasad Tiwari ]
Age : 54 yrs., ]
Through Constituted Power of Attorney ]
Shri Shashikant Tiwari ]
R/o. At & Post : Manda (East) ]
Taluka Kalyan, Dist. Thane. ] ... Petitioner
V/s.
1. State of Maharashtra ]
Through its Principal Secretary, ]
Mantralaya, Mumbai - 400043. ]
2. Municipal Corporation, ]
Municipal Corporation for the City of ]
Kalyan & Dombivli, Having office ]
Shankarrao Chowk, Kalyan (W.), ]
Dist. Thane. ]
3. Assistant Director of Town Planning, ]
Municipal Corporation for the City of ]
Kalyan & Dombivli, Having office ]
Shankarrao Chowk, Kalyan (W.), ]
Dist. Thane. ] ...Respondents
_______________________________________
Mr. I. M. Khairdi for Petitioner.
Ms. M.P. Thakur, A.G.P. for Respondent No.1-State.
Mr. Rohan Gaikwad i/b. Mr. Sandeep D. Shinde for Respondent Nos.2 & 3.
_______________________________________
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Osk J-WP-2430-2023.doc
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 4th February 2025.
PRONOUNCED ON : 29th April 2025.
JUDGMENT ( Per : A. S. GADKARI, J.) :
-
1) Rule. Rule made returnable forthwith and with the consent of
learned Advocates for the parties heard finally.
2) By this Petition under Article 226 of the Constitution of India,
the Petitioner has prayed for a writ of certiorari or any other appropriate
writ, Order or direction for quashing and setting aside the impugned
communication dated 8th December 2022 issued by the Respondent No. 3,
thereby returning the proposal of the Petitioner for development of his land
and further directing him to submit a separate proposal under Chapter 11.1
of U.D.C.P.R. i.e. for 'Accommodation Reservation'. The Petitioner has also
prayed for writ of mandamus or direction in the like nature, thereby
directing the Respondent Nos.2 & 3 to forthwith consider the building plans
submitted by him and grant sanction in accordance with the law in respect of
the landed property of the Petitioner, in view of the confirmation of purchase
notice issued by the Petitioner under Section 49 of the Maharashtra Regional
and Town Planning Act, 1966 (for short, "M.R.T.P. Act") .
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3) Heard Mr. Khairdi, learned counsel for Petitioner, Ms. Thakur,
learned A.G.P. for Respondent No.1-State and Mr. Gaikwad, learned counsel
for Respondent Nos.2 & 3. Perused entire record produced before us.
4) Brief facts leading to filing of the present Petition :-
4.1) Petitioner is the owner of Survey No. 108, Hissa No.2,
admeasuring about 8930 sq.mtrs. situated at village Manda, Titwala, Taluka
Kalyan, District Thane (writ property). The subject property of this Petition
is the land admeasuring 2769 sq.mtrs., which has been demarcated and
reserved for 50 mtrs. wide road and an area admeasuring 2134 sq.mtrs.,
which has been shown to be reserved for Safai Kamgar Vasahat, as per the
Development Plan. The Respondent No. 2 is the Planning Authority and the
Respondent No.3 is the Assistant Director of Town Planning working with the
Respondent No.2 Corporation.
4.2) In the year 1992, the Kalyan Municipal Corporation limits were
enlarged and thereafter it was renamed as 'Kalyan-Dombivli Municipal
Corporation' and the State appointed it as an independent Planning
Authority. The Respondent Nos. 2 & 3 prepared a 'Development Plan' for its
entire territorial jurisdiction and published it on 5th December 1996.
4.3) In the said Draft Development Plan, the lands of the Petitioner
were shown reserved for 'Safai Kamgar Vasahat', as reservation Site No. 58 in
Sector No. 7. The Petitioner had submitted his objection to the reservation
before the Planning Committee. However, the said Committee did not accept
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the objections of the Petitioner. The Government of Maharashtra has
sanctioned a scheme of 'Accommodation Reservation' in the year 1994, which
has been revised from time to time. Under the said scheme, certain
reservations can be developed by the land owner by developing certain part
of the land for the purpose for which the same was reserved and hand it over
to the Corporation and develop the remaining part at his own will.
4.4) The Petitioner accordingly submitted a proposal to the
Respondent No.2, however the Respondent No.2 vide its communication
dated 23rd July 2014, rejected it. It was informed to the Petitioner by the
said communication that, the Petitioner shall surrender the land against
T.D.R., otherwise the said land will be acquired under the provisions of the
Land Acquisition Act.
4.5) The Petitioner was unable to utilize the land for his own purpose
due to the reservation on it. Therefore the Petitioner issued a Purchase
Notice dated 2nd March 2015, as contemplated under Section 49(1) of the
M.R.T.P. Act, to the Respondent No.1. In response, the Petitioner received a
communication dated 17th August 2015 from Respondent No.1 calling upon
him to attend the hearing on 28th August 2015.
4.6) By a communication dated 2nd September 2015, the Urban
Development Department of Respondent No.1 confirmed the said Purchase
Notice, under Section 49(4) of the M.R.T.P. Act.
4.7) Though a period of one year from the date of confirmation of
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the Purchase Notice had passed, the Respondent Nos.2 & 3 did not take any
steps to acquire the land of the Petitioner and therefore the Petitioner vide
his communication dated 22nd January 2016, once again requested the
Respondents to acquire his land. Record indicates that, there is substantial
correspondence entered into between the parties herein with regard to the
acquisition of the land of the Petitioner. However, no effective steps as
contemplated under the provisions of the law for acquisition of landed
property of the Petitioner were adopted by the Respondents.
4.8) By his communication / letter dated 27 th April 2018, the
Petitioner informed Respondents that, in view of their failure to acquire the
land within stipulated period, the reservation on the land has lapsed. Record
indicates that, by a communication dated 26th June 2019, the Sub-Divisional
Officer informed the Respondents to deposit an amount of Rs.4,70,50,432/-
being the monitory compensation towards acquisition of the writ land. By a
letter dated 2nd August 2019, the Respondent Nos.2 & 3 informed the
Petitioner, that the said Respondents are unable to deposit the amount
demanded by the S.D.O. for acquisition of the land and therefore requested
the Petitioner to accept T.D.R. by way of compensation and to cooperate with
them.
4.9) The Petitioner by his letter dated 18th September 2019, informed
the Respondent Nos.2 & 3 that, the reservation on his land has already
lapsed and requested the said Respondents to inform the Land Acquisition
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Officer that the proposal for acquisition of the Petitioner's land be
withdrawn, as it has already lapsed.
4.10) Petitioner by his communications dated 13 th November 2019 and
30th December 2019 again informed the Respondent Nos.2 & 3 either to
compensate the Petitioner by acquiring the entire land or declare that, the
reservation thereof has lapsed. However, there was no response from the
Respondent Nos.2 & 3.
4.11) Petitioner thereafter submitted a Plan for development of the
writ land with the Respondent Nos.2 & 3 on 8th October 2021.
4.12) Respondents neither sanctioned the Plan for development of the
Petitioner's land nor acquired it, despite several communications to them. By
the impugned communication dated 8th December 2022 the Respondent No.3
informed the Petitioner that, he should submit a proposal through his
Architect under Chapter 11.1 of the U.D.C.P.R. i.e. for 'Accommodation
Reservation' and thereafter only his proposals / communications will be
appropriately processed.
4.13) The aforenoted facts are deciphered from the record and are
admitted facts.
5) There is no denial by way of reply or Affidavit by the contesting
Respondent Nos.2 & 3, to the aforenoted facts. However, the learned
Advocate appearing for Respondent Nos.2 & 3 made a feeble attempt to
defend the said Respondents, but the facts on record does not support his
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contentions.
6) Sub-section (7) of Section 49 of M.R.T.P. Act reads as under :
"If within one year from the date of confirmation of the
notice, the Appropriate Authority fails to make an application
to acquire the land in respect of which the purchase notice
has been confirmed as required under section 126, the
reservation, designation, allotment, indication or restriction
on development of the land shall be deemed to have lapsed;
and thereupon, the land shall be deemed to be released from
the reservation, designation, or, as the case may be, allotment,
indication or restriction and shall become available to the
owner for the purpose of development otherwise permissible
in the case of adjacent land, under the relevant plan."
6.1) The Hon'ble Supreme Court while considering the law relating
to and on the subject of Section 49 of M.R.T.P. Act has enumerated the legal
position in the case of Chabildas Vs. State of Maharashtra & Ors., reported in
(2018) 2 SCC 784, has held as under :-
23. On a conspectus of the above authorities, the following
position in law emerges:
23.1 In all Section 49 cases, where a purchase notice has been
served and is confirmed within the period specified, the
appropriate authority must make an application to acquire
the land within one year from the date of confirmation of
the notice. If it does not do so, the reservation, designation,
etc. shall be deemed to have lapsed.
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23.2 If within the period specified in Section 49(7), the
appropriate authority makes the requisite application, then
the State Government may acquire the land by making a
declaration under Section 6 of the Land Acquisition Act as
set out under Section 126(4), wherein the market value
shall be the market value of the land as on the date of
Section 6 declaration. Ordinarily, such declaration must be
made within 1 year of the date of receipt of the requisite
application. In case this not done, it will be open to the
aggrieved person to move the Court to direct the State
Government to make the requisite declaration immediately.
23.3 If 10 years have passed from the date of publication of the
plan in question, and a purchase notice has been served
under Section 127, and no steps have been taken within a
period of one year from the date of service of such notice,
all proceedings shall be deemed to have lapsed. Thus, even
in cases covered by Section 49, the drill of Section 126(4)
and Section 127 will have to be followed, subsequent to
the appropriate authority making an application to acquire
the land within the period specified in Section 49(7).
6.2) The Division Bench of this Court in the case of Nilkanth Hills
Creations Vs. State of Maharashtra & Anr., Writ Petition No. 843 of 2020,
dated 21st February 2022, has in detail explained the legal position
pertaining to Section 49 of M.R.T.P. Act and in para No.9 thereof, has held as
under :-
Osk J-WP-2430-2023.doc
9. From a reading of Section 49 of the said Act, it is clear that
the scheme of the said Section is to lay down the timelines within
which the appropriate authority must make an application to
acquire the land in respect of which a purchase notice has been
confirmed. Immediately upon the conditions specified in sub-
section (1) being met, the owner or person affected may serve on
the State Government, within such time and in such manner as is
prescribed by regulations, a purchase notice requiring the
Appropriate Authority to purchase the interest in the land in
accordance with the provisions of the said Act, accompanied by
documents set out in sub-clause (2) of the said Section. Upon
receipt of the purchase notice, as per sub-section (3), the State
Government is to forthwith call from the planning authority or the
appropriate authority such report or records or both, as may be
necessary, which the authorities shall then forward to the State
Government as soon as possible, but not later than thirty days
from the date of their requisition. As provided in sub-section (4),
if the State Government is satisfied that the conditions specified in
sub-section (1) are fulfilled, it may either confirm the purchase
notice; refuse to confirm the purchase notice; or direct that
planning permission be granted with or without conditions. Sub-
section (5) provides that if the steps contemplated after service of
purchase notice leads to a situation where the State Government
does not pass any orders, the notice shall be deemed to have been
confirmed at the expiration of that period. Sub-section (6) is
deleted. Sub-section (7) of Section 49 provides that if within a
period of one year from the date of confirmation of the purchase
notice, the appropriate authority fails to make an application to
acquire the land in respect of which the purchase notice has been
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confirmed as required under Section 126, the reservation,
designation, allotment, indication or restriction on development
of the land shall be deemed to have lapsed and thereupon the
land shall be deemed to be released from the reservation,
designation, or as the case may be, allotment, indication or
restriction 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) Perusal of entire record thus clearly indicates that, it is the
admitted position that, if within a period of one year from the date of
confirmation of the Purchase Notice by the Respondent No.1, as
contemplated under Section 49(4) of M.R.T.P. Act on 2 nd September 2015,
within a period of one year, the Planning Authority / Competent Authority
has not taken any steps to acquire the land of the Petitioner, then the
reservation stands lapsed. In the circumstances, the request made by the
Petitioner for development could not have been rejected by the Respondent
Nos.2 & 3 on any ground. This is nothing else but sheer harassment to the
Petitioner. Both statute and case law are in support of the Petitioner. The
impugned communication dated 8th December 2022 therefore is of nullity
and deserves to be set aside.
8) In view of the above, the reservation of the writ land as
reservation Site No. 58 in Sector No. 7 of the Corporation has lapsed in
accordance with sub-section 7 of Section 49 of the M.R.T.P. Act and the said
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land is available to the Petitioner for the purpose of development, otherwise
permissible in case of adjacent land under the relevant plant.
9) It will be open to the Petitioner to make a fresh application for
grant of development permission under the M.R.T.P. Act. If such an
application is made by the Petitioner, the same shall be decided by the
Respondent Nos.2 & 3 on its own merits and in accordance with law.
10) Petition is accordingly allowed in terms of prayer clauses (a) and
(b).
11) Rule is made absolute in the above terms.
( KAMAL KHATA, J. ) ( A.S. GADKARI, J. )
OMKAR KUMBHAKARN
SHIVAHAR
KUMBHAKARN Date:
2025.04.29
15:00:41
+0530
