Bombay High Court
Mohd. Jameel Shaikh Wazir And Another vs The State Of Maharashtra, Thr. ... on 18 February, 2025
Author: Nitin W. Sambre
Bench: Nitin W. Sambre
2025:BHC-NAG:1684-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.460 OF 2023
1. Mohd. Jameel Shaikh Wazir, Age 37,
Occup. Business, R/o Qazi Pura, Anjangaon
Surji, Tq. Anjangaon Surji, Dist. Amravati.
2. Abdul Hafiz Abdul Majeed, Age 65, Occup.
Agriculturist, R/o, Qazi Pura, Chandur
Bazar, Tq.Chandur Bazar, Dist. Amravati. Petitioners
-Versus-
1. State of Maharashtra, Through it's
Secretary, Urban Welfare Department,
Mantralaya, Mumbai-32.
2. State of Maharashtra, Through it's Secretary,
Revenue and Forest Department, Mantralaya,
Mumbai-32.
3. The Collector, Amravati District.
4. The Assistant Director, Town Planning,
Amravati District.
5. The Sub Divisional Officer, Achalpur
Dist.Amravati.
6. The Sub-Registrar, Chandur Bazar, District Respondents
Amravati.
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Mr.Raheel Mirza, Advocate for the Petitioners.
Ms. S.S.Jachak, Additional Government Pleader for Respondent
Nos.1 to 6.
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CORAM : NITIN W. SAMBRE AND
MRS. VRUSHALI V. JOSHI, JJ.
DATE : 18/02/2025
ORAL JUDGMENT (Per: Vrushali V. Joshi, J.)
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1) Heard.
2) Rule. Rule made returnable forthwith. The Writ Petition
is heard finally with the consent of the learned counsel appearing
for the parties.
3) The petitioners have filed this writ petition for the
declaration of lapsing of reservation of land, which is reserved for
road as per the Regional Plan dated 29/05/1993, which is owned
by the petitioner No.1 bearing Survey No.66/2/A/30 admeasuring
0.38HR, Mauza Chandur Bazar, Tq.Chandur Bazar, District
Amravati and to direct the respondent No.1-State to notify the
above mentioned lapsing of the reservation in the official gazette as
per the provisions of Section 127 (2) of the Maharashtra Regional
and Town Planning Act, 1966 (hereinafter referred to as the "Act
of 1966").
4) The facts of this case in brief are as under:-
The petitioner No.2 was the owner of the land survey
No.66/2/A, situated at Mouza Chandur Bazar, District Amravati
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admeasuring 1.59 HR, out of which the portion of land
admeasuring 0.38 HR land was reserved for the 45 meter vide
proposed road as per the Regional Plan of Amravati region dated
29/05/1993, which came into force with effect from 15/08/1993.
The respondent No.5-Sub-Divisional Officer passed an order on
10/03/2010 granting permission for the non agricultural use of the
above mentioned land excluding the reserved portion of the land to
the extent of admeasuring 3875 Sq. Meter. The Regional Plan of
Amravati region came into force with effect from 15/08/1993,
however, the land was not acquired by the respondents particularly
the respondent No.1-State and respondent No.3 Collector as per
the provisions of the Maharashtra Regional and Town Planning
Act, 1966.
5) As Section 127(1) of the Act of 1966 the Planning
Authority is required to acquire such reserved land and if it is not
done and the owner/interested person serves a notice to the
Planning Authority to do the same and within a period of Twenty
four months, after the receipt of the said notice, the Planning
Authority does not acquire the reserved land. The land shall be
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deemed to be released from such reservation and shall become
available to the owner for the purposes of permissible development.
6) The petitioner No.2 served the notice to all the
respondents on 06/09/2018, asking the respondents to perform
the statutory obligation by mentioning and attaching the
documents including 7/12 extract. The respondents have not taken
any action nor informed anything to the petitioner, neither any step
regarding acquisition regarding above mentioned land in
accordance with the provisions of the Land Acquisition Act, 1894
or the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 (for short
"Act of 2013"). The declaration under Section 6 of the Land
Acquisition Act, 1894 and the corresponding provision of the
above mentioned Act of 2013 is not made and no notification
regarding acquisition of the land was published. The declaration
under Section 49 of the Act of 2013, is not made in the official
gazette. The respondent No.3, Collector or any other authority on
behalf of the Government did not take any action in respect of
acquisition of the said reserved land.
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7) The petitioner No.2 has sold the said land by registered
sale-deed dated 29/10/2021 to the petitioner No.1. The petitioner
No.1 had made entry in the Register of Mutation and he became
owner of the above mentioned land. The petitioner No.1 had
moved an application dated 16/09/2022 seeking the action taken
by the Gram Panchayat regarding acquisition of the above reserved
land under the Right to Information Act, 2005. The petitioner
No.1 has received communication on 28/09/2022 that the action
in respect of the said reserved land has not been taken till date.
8) The petitioner has placed reliance on the judgment of the
Hon'ble Apex Court in the case of Girnar Traders Vs. State of
Maharashtra and ors, reported in 2007 (7) SCC, 555, wherein the
Hon'ble Apex Court has set out the purpose of Sections 126 and
127 of the Act of 1966.
9) The respondent No.3 Collector has filed an affidavit on
record and has submitted that the Assistant Director of Town
Planning Authority, Amravati District has not made any proposal
as per the provisions of Section 126 of the Act, 1966 before the
Sub-Divisional Officer, Achalpur and Collector, Amravati for
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acquisition of the portion of the land admeasuring 0.38 hectares
out of survey No.66/2/A of Mouja Chandur Bazar, Tq.Chandur
Bazar, Dist.Amravati, which is reserved for the 45 mtr. vide
proposed road under Regional Plan of Amravati till date and
submitted that there is no need to acquire the said portion of land.
10) Heard the learned counsel for the petitioner and the
learned Additional Government Pleader appearing for the
respondents. We need to observe Section 127 of the Act, which
reads thus:-
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 a
declaration under sub-section (2) or (4) of section 126 is
not published in the Official Gazette within such period,
the owner or any person interested in the land may serve
notice, alongwith the documents showing his title or
interest in the said land, on the Planning Authority, the
Development authority or, as the case may be, the
Appropriate Authority to that effect; and if within
[twenty-four 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.
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[(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.]
11) The statutory provision is clear and categorical. Section
127(1), mandates that for an owner whose land is reserved, allotted
or designated, in terms of final regional plan or developmental plan,
needs to serve a notice and to inform the authority and seek its
response concerned its interest in acquiring the land, if he wants his
property to be de-reserved.
12) On perusal of the record, it appears that the petitioner
No.2, who is the owner of the land has issued the notice on
06/09/2018 asking the respondents to perform statutory
obligation. The said notice is not responded by the respondents.
As per the reply of the Collector, said land is not required for the
purpose for which it was acquired.
13) The learned counsel appearing for the petitioner has
placed reliance on the judgment of the Hon'ble Apex Court in the
case of Balaji Associates through its partners Vs. The State of
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Maharashtra and ors. reported in Civil Appeal No.6661 of 2019
(arising out of SLP (C) No.7481 of 2018), in which it is observed
that:-
"19. This Court needs to effectively balance the
power of eminent domain and the constitutional
right of property, which mandates a rational
reading of the law, wherein the declaration in the
official Gazette is only consequential and the
State needs to follow, if the conditions under sub-
section 127(1) stands satisfied. The usage of "On
lapsing of reservation, allocation or designation of
any land under sub-section (1) in the sub-section
2 of Section 127, clearly points towards the
aforesaid interpretation. Moreover, the usage of
'shall', also indicates the imperative nature of the
sub-section, which makes the Government duty
bound to to publish the same''.
14) Learned counsel appearing for the petitioner has also
placed reliance upon the judgment of Hon'ble Apex Court in the
case of Kolhapur Municipal Corporation V. Vasant Mahadev Patil
(dead) through Lrs. reported in AIR SCC 1073, in which it is
observed that:-.
"11.1. A mere Resolution being passed by the
General Body of the Corporation to acquire the
land and sending a letter to the Collector to
acquire the land, without any further steps being
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taken under the Land Acquisition, Act namely
no declaration under Section 6 thereof being
issued within a period of one year from the
receipt of the said purchase notice, would result
in the reservation as deemed to have lapsed".
15) It appears that reservation of the land in question has
lapsed and the land has become available to the petitioners to be
developed as otherwise permissible. Therefore, the Writ Petition
deserves to be allowed and it is allowed in terms of it's prayer clause
(a).
16) 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 requirements of the Section 127(2) of the Act of
1966, which shall be done as expeditiously as possible and
preferably within a period of four months from today.
17) Rule is made absolute in above terms.
(MRS.VRUSHALI V. JOSHI, J) (NITIN W. SAMBRE, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 20/02/2025 18:33:27 Kavita
