Bombay High Court
Shri. Shankar Newandram Budhwani vs The Chief Officer, Vita Municipal ... on 3 February, 2025
Author: A.S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:4999-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 8195 OF 2022
Shri. Shankar Newandram Budhwani,
Age: 45 years, Occ.: Business
(Power of attorney holder of
Mr. Newandram Morandmal Budhwani)
Age: 78 years;
R/at: Yashawant Nagar Vita,
Tal: Khanapur, Dist: Sangli. .....Petitioner.
Vs.
1) The Chief Officer,
Vita Municipal Council,
At/P. Vita, Tal: Khanapur,
Dist.: Sangli,
2) The District Collector,
Vishrambag, Dist.: Sangli,
Sangli 416415,
3) State of Maharashtra,
Represented through Learned
Assistant Government Pleader,
Bombay High Court,
Add- PWD Building, Bombay High
Court Premises, Mumbai - 400 001. .....Respondents.
___________________________________________
Mr. Sandesh D. Patil a/w. Mr. Krishnakant Deshmukh i/by Ms. Divya Pawar
for the Petitioner.
Mr. Nandu Pawar a/w Ms. Samata Pawar i/by Mr. Nikhil Wadikar for the
1/15
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Respondent No.1.
Ms. Rupali Shinde, AGP for the Respondent Nos.2 and 3.
___________________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 22nd NOVEMBER, 2024
PRONOUNCED ON : 3rd FEBRUARY, 2025.
JUDGMENT (PER A.S. GADKARI, J.):
-
1) Rule. Rule made returnable forthwith and with the consent of
learned Advocates for the respective parties, the Petition is taken up for
final hearing.
2) Petitioner has invoked jurisdiction of this Court under Article
226 of the Constitution of India, for a writ of mandamus, for direction to
declare that, the Notice dated 20th January, 2020 (Exh-"B") and revised
Notice dated 6th March, 2020 (Exh-"C") issued by the Petitioner to
Respondent No.1 under Section 127 of the Maharashtra Regional Town
Planning Act, 1966 ("MRTP Act"), to be legal and valid and reservation on
the property of the Petitioner bearing Gat No. 51, H. No. 2/2/2, area H.R 0-
55, Assessment 1/06, situated at Yashawant Nagar, Vita, Taluka Khanapur,
District Sangli, having reservation No.136, ("suit land" ) has lapsed by
operation of law and for other consequential reliefs.
3) Heard Mr. Sandesh Patil learned Advocate for the Petitioner,
Mr. Nandu Pawar learned Advocate for the Respondent No.1 and Ms. Rupali
Shinde, AGP for the Respondent Nos.2 and 3. Perused entire record.
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4) Brief facts:-
(i) Mr. Newandram M. Budhwani i.e. the father of Petitioner, owns
landed property bearing Gat No. 51, Hissa No. 2/2/2, area H.R
0-55, Assessment 1/06 situated at Yashawant Nagar, Vita,
Taluka Khanapur, District Sangli having reservation No.136.
The said property is in actual physical possession of the
Petitioner.
(ii) The draft development plan of Vita Municipal Council was
prepared under the provisions of MRTP Act and firstly came
into effect in the year 1986. In the said plan, reservation for
'Garden' bearing No.136 was put up on the property of the
Petitioner. The said reservation continued since the year 1986
and therefore the Petitioner could not use the said land as per
his choice.
(iii) The residents of Survey No.51 made a representation to the
Vita Municipal Council to delete the reservation from the said
land to the extent of the houses constructed and occupied in
the suit property i.e. reservation No.136 for 'Garden' on the
area admeasuring 40 ares on survey No.51 and survey No.45.
(iv) In its Special meeting dated 7th October, 2013, the elected
representatives of Municipal Council passed unanimous
resolution bearing No.113 dated 7 th October, 2013 for deletion
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of reservation from reserved Survey No.51 and to forward its
said proposal for minor modification in the development plan
to the concerned Authority.
(v) Petitioner sent notice dated 25 th September, 2012 to the
Respondent No.1 under Section 127 of the MRTP Act calling
upon the Respondent No.1 either to purchase the suit land
under the reservation or in the alternative to de-reserve it.
Respondent No.1 did not reply to the said notice.
(vi) Therefore, Petitioner filed Writ Petition No.1964 of 2014 before
this Court. In the reply to the Petition, the Respondent No.1
pointed out that, the draft amendment plan was sanctioned on
31st August, 2009 and it had came into force from 30 th October,
2009. It was the misconception of the Petitioner that, the land
described in his notice was not affected by any reservation or
designation and therefore this Court noted that, there was no
reason to entertain the said Petition. It was also noted that, the
development plan of the Respondent No.1 was brought into
force on 30th October, 2009 and therefore the Notice dated 25 th
September, 2012, under Section 127 of the MRTP Act could not
have been issued. This Court therefore disposed off the said
Petition, by Order dated 21st January, 2015.
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(vii) The period of 10 years as contemplated under Section 127 of
the MRTP Act expired on 30th October, 2019. In the said period
of 10 years, the Respondent No.1 did not acquire the suit land
of the Petitioner which was reserved for 'garden' under the
reservation No.136 or even took any effective steps to acquire
the same since the date i.e. 30th October, 2009, it came into
force.
(viii) Petitioner therefore issued a notice dated 20th January, 2020
under Section 127 of MRTP Act to the Respondent No.1 and
called upon it to either acquire his said land or to declare that,
the reservation of it, has lapsed.
(ix) Inspite of notice dated 20th January, 2020 duly served upon the
Respondent No.1, it did not take any steps to acquire the suit
land and therefore the Petitioner out of abundant precaution
served another notice dated 6 th March, 2020 under Section 127
of the MRTP Act, upon the Respondent No.1 and called upon it
to do the needful. Despite receipt of the said second notice
also, the Respondent No.1 did not take any steps to acquire the
suit land and/or to declare the reservation on it as lapsed.
(x) Petitioner received a communication dated 16 th November,
2021 from the Respondent No.1, acknowledging the service of
Notice dated 20th January, 2020 received by it on 27 th January,
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2020.
By the said communication, the Respondent No.1 gave
its offer to the Petitioner that, against the purchase notice
dated 27th January, 2020, the Respondent No.1 is ready to give
TDR under Section 126 of MRTP Act towards compensation for
the acquisition of the suit property. The Respondent No.1
called upon the Petitioner to submit his say to it, in that behalf.
(xi) Petitioner by his reply dated 25 th November, 2021 informed the
Respondent No.1 that, he is not interested in transferring the
suit land against TDR. That, Petitioner has already informed
the Respondent No.1 to acquire the suit land under reservation
for the purpose of "Garden". Petitioner expressed his inability
to accept the offer given by the Respondent No.1.
(xii) Despite notice dated 6th March, 2020 issued by Petitioner under
Section 127 of MRTP Act, the Respondent No.1 did not take
any steps to acquire the suit land within stipulated period and
therefore Petitioner filed present Petition on 1 st April, 2022 for
the reliefs as noted herein above.
5) The aforenoted facts are deciphered from the record and are
admitted facts.
6) Shri. Manojkumar Desai, the Chief Officer of Respondent No.1,
Council has filed a detailed Affidavit dated 3 rd August, 2022 in response to
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the Petition. It be noted here that, there is no denial to the facts mentioned
in paragraph No.4 herein above. In the said Affidavit, the inter-office
correspondence between the Respondent No.1 and other Government
Authorities has been relied upon to make this Court to believe that, the
Respondent No.1 took 'effective steps' for acquiring the Petitioner's suit
property. Heavy reliance is placed on a fact that, on 15 th November, 2021,
the Deputy Superintendent of Land Records issued a letter to the
Respondent No.1 requesting it to deposit an amount of Rs.18,000/- for the
purpose of measurement of the suit property. That, on 17 th November,
2021, the Respondent No.1 paid the said measurement fees by depositing
the said amount of Rs.18,000/- with the concerned Authority. Apart from
the said fact, there is no other averment to even remotely indicate that, the
Respondent No. 1 adopted any steps for acquisition of suit property under
reservation and for issuance of the declaration under Section 6 of the Land
Acquisition Act as enumerated by the Hon'ble Supreme Court in the case of
Girnar Traders Vs. State of Maharashtra & Others, reported in (2007) 7 SCC
555.
7) Mr. Pawar, learned counsel for the Respondent No.1 submitted
that, deposit of the said amount of Rs.18,000/- constitutes a step toward
acquisition of the suit property, after receipt of notice under Section 127 of
the MRTP Act. He reiterated that, this deposit is indeed a step towards
acquisition of land. However, the submission is recorded solely for its
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rejection at the threshold, as according to us, as per the settled principles of
law, it is not the step for acquisition of the suit property and certainly not
commensurate with the principles of law enunciated by the supreme court
in the case of Girnar Traders (Supra).
8) The Hon'ble Supreme Court in the case of Girnar Traders
(Supra) in para Nos. 54 to 58 has held as under:-
54. When we conjointly read Sections 126 and 127 of the MRTP
Act, it is apparent that the legislative intent is to
expeditiously acquire the land reserved under the Town
Planning Scheme and, therefore, various periods have been
prescribed for acquisition of the owner's property. The intent
and purpose of the provisions of Sections 126 and 127 has
been well explained in Municipal Corpn. of Greater Bombay
v. Dr. Hakimwadi Tenants' Assn., (1988 Supp SCC 55). If the
acquisition is left for time immemorial in the hands of the
authority concerned by simply making an application to the
State Government for acquiring such land under the LA Act,
1894, then the authority will simply move such an
application and if no such notification is issued by the State
Government for one year of the publication of the draft
regional plan under Section 126(2) read with Section 6 of
the LA Act, wait for the notification to be issued by the State
Government by exercising suo motu power under sub-section
(4) of Section 126; and till then no declaration could be
made under Section 127 as regards lapsing of reservation
and contemplated declaration of land being released and
available for the landowner for his utilisation as permitted
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under Section 127. Section 127 permitted inaction on the
part of the acquisition authorities for a period of 10 years for
dereservation of the land. Not only that, it gives a further
time for either to acquire the land or to take steps for
acquisition of the land within a period of six months from the
date of service of notice by the landowner for dereservation.
The steps towards commencement of the acquisition in such
a situation would necessarily be the steps for acquisition and
not a step which may not result into acquisition and merely
for the purpose of seeking time so that Section 127 does not
come into operation.
55. Providing the period of six months after the service of notice
clearly indicates the intention of the legislature of an urgency
where nothing has been done in regard to the land reserved
under the plan for a period of 10 years and the owner is
deprived of the utilisation of his land as per the user
permissible under the plan. When mandate is given in a
section requiring compliance within a particular period, the
strict compliance is required therewith as introduction of this
section is with legislative intent to balance the power of the
State of "eminent domain". The State possessed the power
to take or control the property of the owner for the benefit of
public cause, but when the State so acted, it was obliged to
compensate the injured upon making just compensation.
Compensation provided to the owner is the release of the
land for keeping the land under reservation for 10 years
without taking any steps for acquisition of the same.
56. The underlying principle envisaged in Section 127 of the
MRTP Act is either to utilise the land for the purpose it is
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reserved in the plan in a given time or let the owner utilise
the land for the purpose it is permissible under the town
planning scheme. The step taken under the section within the
time stipulated should be towards acquisition of land. It is a
step of acquisition of land and not step for acquisition of
land. It is trite that failure of authorities to take steps which
result in actual commencement of acquisition of land cannot
be permitted to defeat the purpose and object of the scheme
of acquisition under the MRTP Act by merely moving an
application requesting the Government to acquire the land,
which Government may or may not accept. Any step which
may or may not culminate in the step for acquisition cannot
be said to be a step towards acquisition.
57. It may also be noted that the legislature while enacting
Section 127 has deliberately used the word "steps" (in plural
and not in singular) which are required to be taken for
acquisition of the land. On construction of Section 126 which
provides for acquisition of the land under the MRTP Act, it is
apparent that the steps for acquisition of the land would be
issuance of the declaration under Section 6 of the LA Act.
Clause (c) of Section 126(1) merely provides for a mode by
which the State Government can be requested for the
acquisition of the land under Section 6 of the LA Act. The
making of an application to the State Government for
acquisition of the land would not be a step for acquisition of
the land under reservation. Sub-section (2) of Section 126
leaves it open to the State Government either to permit the
acquisition or not to permit, considering the public purpose
for which the acquisition is sought for by the authorities.
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Thus, the steps towards acquisition would really commence
when the State Government permits the acquisition and as a
result thereof publishes the declaration under Section 6 of
the LA Act.
58. The MRTP Act does not contain any reference to Section 4 or
Section 5-A of the LA Act. The MRTP Act contains the
provisions relating to preparation of regional plan, the
development plan, plans for comprehensive developments,
town planning schemes and in such plans and in the
schemes, the land is reserved for public purpose. The
reservation of land for a particular purpose under the MRTP
Act is done through a complex exercise which begins with
land use map, survey, population studies and several other
complex factors. This process replaces the provisions of
Section 4 of the LA Act and the inquiry contemplated under
Section 5-A of the LA Act. These provisions are purposely
excluded for the purposes of acquisition under the MRTP Act.
The acquisition commences with the publication of
declaration under Section 6 of the LA Act. The publication of
the declaration under sub-sections (2) and (4) of Section 126
read with Section 6 of the LA Act is a sine qua non for the
commencement of any proceedings for acquisition under the
MRTP Act. It is Section 6 declaration which would commence
the acquisition proceedings under the MRTP Act and would
culminate into passing of an award as provided in sub-section
(3) of Section 126 of the MRTP Act. Thus, unless and until
Section 6 declaration is issued, it cannot be said that the
steps for acquisition are commenced.
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9) The Hon'ble Supreme Court in the case of Shrirampur
Municipal Council, Shrirampur Vs. Satyabhamabai Bhimaji Dawkher &
Others, reported in (2013) 5 SCC 627, in para Nos.42, 43 & 46 has held as
under :-
42. We are further of the view that the majority in Girnar Traders (2)
v. State of Maharashtra, (2007) 7 SCC 555 had rightly observed
that steps towards the acquisition would really commence when
the State Government takes active steps for the acquisition of the
particular piece of land which leads to publication of the
declaration under Section 6 of the 1894 Act. Any other
interpretation of the scheme of Sections 126 and 127 of the 1966
Act will make the provisions wholly unworkable and leave the
landowner at the mercy of the Planning Authority and the State
Government.
43. The expression "no steps as aforesaid" used in Section 127 of the
1966 Act has to be read in the context of the provisions of the
1894 Act and mere passing of a resolution by the Planning
Authority or sending of a letter to the Collector or even the State
Government cannot be treated as commencement of the
proceedings for the acquisition of land under the 1966 Act or the
1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the
State Legislature has made a definite departure from the scheme
of acquisition enshrined in the 1894 Act. But a holistic reading of
these provisions makes it clear that while engrafting the
substance of some of the provisions of the 1894 Act in the 1966
Act and leaving out other provisions, the State Legislature has
ensured that the landowners/other interested persons, whose
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land is utilized for execution of the development plan/town
planning scheme, etc., are not left high and dry. This is the
reason why time-limit of ten years has been prescribed in Section
31(5) and also under Sections 126 and 127 of the 1966 Act for
the acquisition of land, with a stipulation that if the land is not
acquired within six months of the service of notice under Section
127 or steps are not commenced for acquisition, reservation of
the land will be deemed to have lapsed. Shri Naphade's
interpretation of the scheme of Sections 126 and 127, if
accepted, will lead to absurd results and the landowners will be
deprived of their right to use the property for an indefinite period
without being paid compensation. That would tantamount to
depriving the citizens of their property without the sanction of
law and would result in violation of Article 300-A of the
Constitution.
46. As a sequel to the above discussion, we hold that the majority
judgment in Girnar Traders (2) lays down correct law and does
not require reconsideration by a larger Bench. We further hold
that the orders impugned in these appeals are legally correct and
do not call for interference by this Court. The appeals are
accordingly dismissed.
10) According to us, the reply dated 16th November, 2021 issued by
the Respondent No.1, in response to the Notice dated 20 th January, 2020
(sic 27th January, 2020), cannot be even remotely construed as a step
towards acquisition of the suit property as enumerated by the Hon'ble
Supreme Court in the case of Girnar Traders (Supra). It can at the most be
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considered as an offer to purchase by the Respondent No.1. As noted
earlier, the Petitioner did not accept the said offer of the Respondent No.1
and has in fact rejected it, by his reply dated 25th November, 2021.
11) Perusal of entire record clearly indicates that, after receipt of
statutory notice dated 6th March, 2020, the Respondents did not take any
steps for acquisition of the suit property. As noted earlier, mere payment for
measurement charges with the Deputy Superintendent of Land Records
cannot be considered as a step towards or for acquisition of the suit
property.
12) Despite increasing the period from 6 to 24 months from the
date of service of the purchase notice under Section 127(1) of the MRTP
Act, the Respondents have failed to take effective steps to acquire the suit
property.
13) Be that as it may. Our Courts, as early as in the year 2015, in
the case of Uday Madhavrao Patwardhan and Others v Sangli Miraj, and
Kupwad Municipal Corporation, Sangli and Others reported in (2015) SCC
OnLine Bom 659, have held that, there is no need for the owner to seek a
declaration from the Court. This position in law is reiterated by this Court
in the case of Shivgonda Anna Patil v Sangli, Miraj and Kupwad City
Municipal Corporation reported in 2023:BHC-AS:29348-DB. Although, the
law on the subject is clear, citizens are compelled to file Writ Petitions in
this Court for the said reliefs.
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14) After applying the ratio laid down by the Hon'ble Supreme
Court in the aforestated cases, to the case in hand, we are of the considered
view that, the Petition deserves to be allowed in terms of prayer clause (a).
The Petition is accordingly allowed and Rule is made absolute in terms of
prayer clause (a).
15) The State Government to notify the lapsing of reservation of
the Petitioner's land by publishing it in the Official Gazette, as per Section
127(2) of the MRTP Act within a period of six weeks from the date of
uploading of the present Order on the Official website of the High Court of
Bombay.
16) It is clarified that, the Petitioner will be entitled to proceed
with the development of the property and the Respondents will not delay
the granting of permissions as the notification in the Official Gazette is
merely a ministerial act, as held by the co-ordinate Bench of this Court in
the case of Arun Motiram Nimkar Vs. Municipal Corporation of City of
Amravati & Ors., reported in 2013 SCC OnLine 739 : (2013) 5 Bom CR 546.
17) All the concerned to act on an authenticated copy of this
Judgment.
(KAMAL KHATA, J.) (A.S. GADKARI, J.)
SANJIV SHARNAPPA
SHARNAPPA MASHALKAR
MASHALKAR Date:
2025.02.03
14:20:18 +0530
