[Cites 8, Cited by 0]
Bombay High Court
Mukund Mohan Kurunbhatti vs The State Of Maharashtra And Others on 4 December, 2025
Author: Nitin B. Suryawanshi
Bench: Nitin B. Suryawanshi
2025:BHC-AUG:33538-DB
WP-4963-2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4963 OF 2016
1. Mukund Mohan Kurunbhatti
Age : 45 years, Occ. : Business
R/o. Heramb society, behind Harshvardhan
Society Makhamalabad Naka, Panchavati
Tq. Nashik, Dist. : Nashik
2. Subodh Motichand Bundelchandi
Age : 50 years, Occ. : Business
R/o. Sadar Bazar Chalisgaon
Dist. Jalgoan. ... PETITIONERS
...VERSUS...
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai - 32.
2. The Collector, Jalgaon
District Jalgaon
3. Assistant Director of Town planning
IInd floor, Bhikamchand Jain Market,
Jalgaon.
4. The Chalisgaon Municipal Council
Through its Chief Officer,
Chalisgaon.
5. The Planning Officer
Municipal Council,
Chalisgaon. ... RESPONDENTS
_______________________________________________________________
•
Mr. Mukul Kulkarni, Advocate h/f. Mr. G. L. Gujar, Advocate for
Petitioners
• Mr. P. S. Dighe, Advocate h/f. Mr. V. R. Dhorde, Advocate for
Respondent Nos. 4 and 5
• Mr. A. V. Lavte, AGP for State
_______________________________________________________________
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CORAM : NITIN B. SURYAWANSHI AND
VAISHALI PATIL - JADHAV, JJ.
RESERVED ON : NOVEMBER 13, 2025
PRONOUNCED ON : DECEMBER 04, 2025
J U D G M E N T [Per Vaishali Patil - Jadhav, J.] :
. Rule. Rule made returnable forthwith and heard finally
with the consent of learned Advocates for the parties.
2. By this petition filed under Article 226 of the Constitution
of India, the petitioners are seeking following reliefs :-
"A) The Hon'ble High Court may be pleased to direct
Respondents to issue notification declaring that the
reservation on Survey No.303/1/1C, situated at Chalisgaon
has lapsed as provided under Section 127 of the MRTP Act.
AA) The Hon'ble High Court may be pleased to hold and
declare that the re-reservation of the property of the
Petitioner bearing No. 303/1/1-C admeasuring 0-H 19.5 R
i.e. 20981 sq. ft. Areas of land situated at Chalisgaon in
Sanctioned Development Plan dated 06.04.2016 bearing Site
No. 46 is bad in law and non-est and hence the said
reservation is quashed and set aside."
3. It is the case of the petitioners that lands bearing city
Survey No. 303/1/1C and 309, are reserved as Site No. 41 for 'Play
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Ground and School' in the development plan dated 22.12.1989. The
petitioners purchased the Survey No. 303/1/1C by the sale deed dated
30.12.2014. Accordingly, entry was made in 7/12 extract wherein it is
mentioned in other rights column that the land is reserved for Site No.
41. The Petitioner No. 1 issued purchase notice on 16.02.2015 under
Section 127 of MRTP Act. After the purchase notice, Chief Officer sent
land acquisition proposal to Collector by letter dated 28.05.2015. Note
was also prepared by Special Land Acquisition Officer for seeking
consent of the Collector to appoint Sub-Divisional Officer for carrying
out acquisition proceeding under the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 for Site No. 41 Survey No. 303/1/1C. But no further steps were
taken. It is the contention of the petitioners that as no steps were taken
within 12 months of purchase notice, the reservation has lapsed and the
land shall be deemed to have been released from the said reservation.
The revised second development plan got sanction of
Government on 06.04.2016 wherein petitioners' land is reserved for
`Primary School and Play Ground' as Site No. 46. As the petitioners'
have served the purchase notice before the second revised plan was
sanctioned, petitioners' need not wait for another 10 years.
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4. The petitioners would submit that the reservation Site No.
41 consists of Survey No. 303/1/1C and 309 total admeasuring 0.45 R.
The owner of Survey No. 309 filed Writ Petition No. 3710 of 2014,
Chhaya Motichand Bundelkhandi Vs. The State of Maharashtra and
Others, before this Hon'ble High Court seeking declaration as per
Section 127 of MRTP Act, 1966. The writ petition was allowed on
26.08.2014. As a result, larger portion of 0.25 R land of Site No. 41 is
deleted and very small portion of 0.20 R land is left in Site No. 41.
In support of his submissions, petitioners relied on Godrej
and Boyce Manufacturing Company Limited Vs. State of Maharashtra
and others, (2015) 11 SCC 554 and Sadashiv Tryambak Rajebahadur
and others Vs. State of Maharashtra through Principal Secretary, Urban
Development Department and others, 2015(11) SCC 554.
5. Learned counsel for the Municipal Council would submit
that the scheme to prepare the revised development plan commenced in
the year 2009 and final development plan was sanctioned in the year
2016. He would submit that since the revised development plan was
sanctioned on 06.04.2016, the cause of action for the petitioners to
issue a notice under Section 127(1) of MRTP Act got extended by a
further period of 10 years. Petitioners did not take objection at the
relevant time. The notice dated 16.02.2015 is premature and the
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petition be dismissed. To buttress his submission learned counsel relies
upon the judgment of Hon'ble Apex Court in the case of Prafulla C.
Dave and others Vs. Municipal Commissioner and others , (2015) 11
SCC 90.
6. Learned advocate for Municipal Council would dispute the
fact that petitioners' land is reserved by Site No. 41. Learned counsel
would point out from the statement of sanctioned development plan of
1989 that petitioners' land is reserved in Site No. 42 for "Slum
Clearance Scheme" which is in Survey No. 303 part and not in Site
No.41, wherein there is mention of only Survey No. 309. Petitioner has
mentioned wrong Site No. 41 in his purchase notice dated 16.02.2015.
Hence, petition be dismissed and no relief be granted to the petitioners.
7. Learned AGP adopted arguments of learned counsel for
Municipal Council. In addition, he would submit that by amendment in
Section 127(1) of MRTP Act on 29.08.2015, the words "twelve months"
were substituted by "twenty-four months". In view of the amendment,
lapsing would be on 15.02.2017 i.e. after the expiry of 24 months from
the date of purchase notice dated 16.02.2015. The notice would also
lapse for the reason that the second revised plan came on 06.04.2016,
wherein the petitioners' land is reserved for `Play Ground' in Site No.46.
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8. We have considered the rival submissions and perused the
record.
9. It is the contention of the Municipal Council that, Site No.
41 does not include petitioner's land and his land is in Site No. 42 and
he has wrongly mentioned Site No. 41 in his purchase notice. This
contention cannot be accepted for the reason that the Municipal Council
raised this objection only while answering this Writ Petition by way of
an affidavit-in-reply. On the contrary, the Chief Officer of Municipal
Council in his letter dated 28.05.2015 written to the Collector for
initiating the acquisition proceedings has mentioned that he is in receipt
of purchase notice under Section 127 in respect of Site No. 41, Survey
No. 303/1/1C, admeasuring 1949.25 Sq. Mtrs. The petitioner has also
filed 7/12 extract wherein there is entry to the effect that Survey
No.303/1/1C is reserved for Site No. 41. The contention of the
petitioner that Survey No. 309 and Survey No. 303/1/1C is included in
Site No. 41 reserved for `Primary School and Play Ground' gets the
support from the remark written in column no. 5 Schedule "B" of Draft
Development Plan dated 06.04.2016 produced by Municipal Council,
which is as follows :-
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In the revised development plan, Municipal Council has
deleted Survey No. 309 and Site No. 46 reserved for `Primary School
and Play Ground' now includes 303 part and 306 part. There is no merit
in this contention of respondents that in Site No.41 in earlier
development plan, petitioners' land was not included.
10. In so far as ground of the respondent Municipal Council
regarding subsequent revised development plan, sanctioned and
finalized on 06.04.2016, since notice issued by the petitioner under
Section 127(1) of MRTP Act in tune with the right accrued to him to
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issue such notices, having already been exercised even prior to sanction
and finalization of the revised development plan under Section 38 of
the MRTP Act, such subsequent revision would not give a lease of life
for another ten years therefrom. Site No.41 includes Survey No. 309
admeasuring 2475 Sq. Mtrs. It appears that when this Court allowed
Writ Petition No.3710/2014 (supra) on 26.08.2014 and deleted survey
No.309 from Site No.41, that time also Municipal Council had taken up
the proceeding for revised development plan but it was not brought to
the notice of Court. The judgment in the case of Prafulla C. Dave Vs.
Municipal Commissioner and others (supra) relied by the learned
counsel for respondents would not help the respondents. In the said
judgment, Apex Court has observed 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
proceedings for acquisition are 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
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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 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
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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 v. Dr. Hakimwadi
Tenants' Assn. in the following terms:
"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."
Instead the judgment relied by the petitioners' in case of Godrej
and Boyce Manufacturing Company Limited Vs. State of Maharashtra
and others (supra), helps the petitioners wherein it is observed by Apex
Court that :-
"20. ......... Therefore, we have to hold that the impugned
notification is bad in law and liable to be quashed. The High
Court has not examined the impugned notification from the
view point of Section 127 of the MRTP Act and interpretation
of the above said provision made in the case of Girnar
Traders (2)4, therefore, giving liberty to the Appellant by the
High Court to file objections to the proposed notification is
futile exercise on the part of the Appellant for the reason that
the State Government, once the purpose the land was
reserved has not been utilized for that purpose and a valid
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statutory right is acquired by the land owner/interested
person after expiry of 10 years from the date of reservation
made in the Development Plan and 6 months' notice period is
also expired, the State Government has not commenced the
proceedings to acquire the land by following the procedure
as provided Under Sections 4 and 6 of the repealed Land
Acquisition Act, 1894. Therefore, the land which was
reserved for the above purpose is lapsed and it enures to the
benefit of the Appellant herein. Therefore, it is not open for
the State Government to issue the impugned notification
proposing to modify the Development Plan from deleting for
the purpose of Railways and adding to the Development Plan
for the formation of Development Plan Road after lapse of 10
years and expiry of 6 months' notice served upon the State
Government."
11. Considering the above ratio, admittedly even before revised
plan of the respondent - Municipal Council came into force w.e.f.
06.04.2016, the petitioners have exercised their rights by issuing a
statutory notice dated 16.02.2015 under Section 127(1) of MRTP Act,
hence, the 10 years period will have to be reckoned from the
development plan of 1989.
12. The another ground raised by the respondents is that
because of the amendment on 29.08.2015 in Section 127(1), the notice
period will lapse on 15.02.2017 instead of 15.02.2016 as by way of
amendment "Twelve Months" period is replaced by "Twenty-Four
Months". Herein it will be apposite to refer to the case of Sadashiv
Tryambak Rajebahadur and others Vs. State of Maharashtra through
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Principal Secretary, Urban Development Department and others, 2023
Online Bom 999, wherein this Court has held as under :-
"10. In regard to the contention of the Respondent
Nos.2 and 4, that in view of the amendment in August
2015, lapsing would be on the expiry of 24 months i.e.
on 7th July 2017 and not after twelve months on 7 th
July 2016 from the service of the purchase notice on
8th July 2015 as contended in the purchase notice, in
our view, such contention presumes that, an
amendment to the period, as effected from 29 th August
2015 would have a retrospective effect cannot be
accepted. Such amendment to MRTP Act as noted
above is not retrospective in operation, consequently,
the lapsing would be after twelve months i.e. on 7 th
July 2016. In any event, this contention does not
advance the case of the Respondent, in view of the
Respondents' failure to publish a declaration under
section 6 of the Land Acquisition Act, 1894."
In the present case, purchase notice was issued by the
petitioners on 16.02.2015 and the notice period would lapse on
15.02.2016. The amendment introduced in August, 2015 would not be
applicable as is held above that the said amendment is not retrospective
in operation, consequently lapsing would be after one year i.e. on
15.02.2016.
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13. According to the petitioners, once the reservation stood
lapsed and the notice period was over, the Municipal Council could not
have reserved the land of the petitioners again, as it stood released from
reservation on completion of statutory period of 12 months after serving
of purchase notice. This Court while allowing Writ Petition
No.3710/2014 (supra) has observed that :
"12. Section 127 prescribes two periods. Firstly, the planning
authority has to acquire the land reserved, allotted or
designated within 10 years by agreement from the date on
which final regional plan or final development plan came into
force. Secondly, if first part of section 127 is not complied
with or no steps are taken, then by virtue of second part of
section 127, twelve months period is provided from the date
on which notice has been served by the owner of land on the
planning authority."
14. Municipal Council prepared development plan in the year
1989. Admittedly, no steps are taken for acquisition of Survey
No.303/1/1C, reserved for 'School and Play Ground' at reservation Site
No. 41. It is also admitted that petitioners have served notice on
16.02.2015 and Municipal Council has forwarded the land acquisition
proposal to the Collector by letter dated 28.05.2015. Mere forwarding
of proposal cannot be treated as compliance as contemplated in Section
127 of the MRTP Act. Therefore, in our considered opinion, as the
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Municipal Council has failed to comply with the requirement of Section
127 of the MRTP Act, the reservation has lapsed. The land of the
petitioner cannot be kept under reservation in perpetuity. The concept
of ownership would be defeated.
15. For the abovementioned reasons, writ petition deserves to
be allowed. In the result, we pass the following order :-
ORDER
(i) The Writ Petition is allowed in terms of prayer clauses "A" and
"AA".
(ii) The State Government is directed to notify the lapsing of the
reservation by an order to be published in the Official Gazette as per the
requirement of Section 127(2) of the MRTP Act, which shall be done as
expeditiously as possible and preferably within a period of six months
from the date of uploading of this order.
(iii) No order as to costs.
(iv) Rule is made absolute in the above terms.
[VAISHALI PATIL - JADHAV, J.] [NITIN B. SURYAWANSHI, J.]
