Bombay High Court
Sopan Trambak Wani vs Director Of Town Planning Maharashtra ... on 21 January, 2025
Author: A. S. Gadkari
Bench: A. S. Gadkari
2025:BHC-AS:2784-DB
Osk J-WP-1479-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL WRIT PETITION NO. 1479 OF 2023
Sopan Trambak Wani ]
Age 83 years, Occ. Trader, ]
Residing at Near Geetanjali Housing Society, ]
Behind State Bank of India, ]
Malegaon, District Nashik. ] ... Petitioner
V/s.
1. Director of Town Planning, ]
Maharashtra State, Central Bldg., Pune ]
2. Dy. Director of Town Planning, ]
Nashik Division, Commissioner off. ]
Compound, Nasik Road, Nashik. ]
3. Asstt. Director of Town Planning, ]
Old Corporation Building, Pundi Colony, ]
Nashik. ]
4. District Collector, Nashik, ]
Office of the Dist. Collector, Nashik. ]
5. State of Maharashtra through Principal ]
Secretary, Urban Development Department, ]
Mantralaya, Mumbai 400 032. ]
6. Malegaon Municipal Corporation ]
through Municipal Commissioner, ]
Malegaon, Dist. Nashik. ] ...Respondents
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Osk J-WP-1479-2023.doc
_______________________________________
Mr. Ashutosh Gavnekar a/w. Mr. Rohit Parab i/b. Mr. C.G. Gavnekar for
Petitioner.
Smt. M.P. Thakur, A.G.P. for Respondent Nos.1 to 5-State.
Mr. G.H. Keluskar for Respondent No.6.
_______________________________________
CORAM : A. S. GADKARI AND
KAMAL KHATA, JJ.
RESERVED ON : 19th December 2024.
PRONOUNCED ON : 21st January 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) By this Petition under Article 226 of the Constitution of India,
the Petitioner has prayed for writ of mandamus for direction to declare that,
the land owned by him bearing Survey No.228/1+2/2, (Final Plot No.91),
admeasuring 0.30 Ares (300 sq.mtrs.), situated within the municipal limits of
Respondent No.6, stands lapsed and the same is available to the Petitioner
and for other consequential reliefs.
3) Heard Mr. Gavnekar, learned Advocate for Petitioner, Smt.
Thakur, learned A.G.P. for Respondent Nos.1 to 5 and Mr. Keluskar, learned
Advocate for Respondent No.6. Perused entire record.
Osk J-WP-1479-2023.doc
4) Petitioner is the owner of land bearing Survey No. 228/1+2/2
(Final Plot No.91), admeasuring 0.30 Ares (300 sq.mtrs.) situated within the
jurisdiction of the Respondent No.6. The said plot of land has been shown to
be reserved for 'Garden' vide Site No. 110, as per the First Development Plan
sanctioned in the year 1970 for the city of Malegaon under the provisions of
the Maharashtra Regional and Town Planning Act, 1966 (for short, "MRTP
Act").
4.1) The First Revised Development Plan was sanctioned on 1 st April
1986, which came into effect from the very same date. That, the Second
Revised Development Plan was published on 15 th September 2006 in the
Government Gazette. The said Second Revised Development Plan was
finalized for the city of Malegaon on 21st August 2009 and came into force
with effect from 12th October 2009. The Petitioner's property was and is
shown to be reserved for the purpose of garden under Site No. 110 under the
said plan.
4.2) It is the case of the Petitioner that, though his property is
reserved for public purpose, the Respondents did not take any steps to
acquire the said property, as contemplated under Section 126 of the MRTP
Act and therefore the Petitioner issued notice dated 30 th July 2020 to
Respondent No.6, which was duly served upon the Respondent No.6.
4.3) After receipt of the said notice dated 30 th July 2020, it was
placed for consideration before the General Body of Respondent No.6, in its
Osk J-WP-1479-2023.doc
meeting dated 30th November 2021. The General Body of Respondent No. 6
considered the said notice and by its Resolution No. 267 recorded its inability
to acquire the land of the Petitioner for its poor / unsatisfactory financial
condition.
4.4) The period of 24 months as contemplated under Section 127 (1)
of the said Act came to an end on 30 th July 2022, however the Respondent
No.6 i.e. the Planning Authority did not take any steps to acquire the
Petitioner's said property.
4.5) Petitioner therefore filed present Petition on 17 th January 2023
for the reliefs as noted hereinabove.
5) Mr. Gavnekar, learned Advocate for Petitioner submitted that,
when a site is reserved for public purpose, it is incumbent that the
proceedings be initiated for compulsory acquisition of such land is required
to be acquired by the Authorities within specified period, as contemplated
under Section 126 of the said Act. That, in the event, no acquisition is made
by the Planning Authority, owners of such sites can issue a notice calling
upon the Authority to confirm whether they intend to purchase property for
the public purpose for which it is earmarked. That, if such a notice is
confirmed by the Authority, it is obligatory on such Authority to make an
application to acquire such land within a period of 24 months from the date
of confirmation of notice, as contemplated under Section 127(1) of the said
Act. That, if there is failure on the part of Appropriate Authority to make
Osk J-WP-1479-2023.doc
such application within the aforestated period, it is provided that, the land
earmarked or designated for a particular purpose shall be deemed to have
been lapsed and the land shall be declared to be released from reservation or
designation as the case may be and the said land shall become available to
the owner for the purpose of development, as otherwise in case of adjoining
land in the relevant plan. He submitted that, in the present case, there is
clear failure on the part of Appropriate Authority to acquire the Petitioner's
land, despite service of notice under Section 127(1) of the said Act and
therefore the reservation on the land of the Petitioner has lapsed. He
therefore prayed that, the Petition may be allowed as per the prayer clauses
in the Petition.
6) Smt. Thakur, learned A.G.P. appearing for Respondent Nos.1 to 5
submitted that, Mr. Kalpesh P. Patil, Assistant Director of Town Planning,
Nashik has filed Affidavit dated 17 th January 2024 on behalf of Respondent
Nos.1, 2, 3 & 5 and Mr. Nitin Sadgir, Sub-Divisional Officer, Malegaon,
District Nashik, has filed Affidavit dated 19th October 2023 on behalf of
Respondent No.4. She drew our attention to the relevant paragraphs from
the said Affidavits. She submitted that, the facts stated in the said Affidavits
are as per the record maintained by the said two Authorities.
7) Mr. Keluskar, learned Advocate appearing for Respondent No.6
submitted that, Mr. Shantaram T. Chaure, Town Planner (II) of the Town
Planning Department of Respondent No.6 has filed a detailed Affidavit dated
Osk J-WP-1479-2023.doc
6th September 2023 and the facts mentioned therein are as per the record
maintained by the Respondent No.6. He on instructions fairly conceded to
the fact that, the General Body of Respondent No.6 has passed the said
Resolution No. 267 dated 30th November 2021 asserting the fact that, the
land of the Petitioner could not be acquired for want of poor / unsatisfactory
economical condition of the Respondent No.6.
8) Perusal of record indicates that, in their Affidavits (i) Mr.
Kalpesh P. Patil, Assistant Director of Town Planning, Nashik (ii) Mr. Nitin
Sadgir, Sub-Divisional Officer, Malegaon, District Nashik and (iii) Mr.
Shantaram T. Chaure, Town Planner (II) of the Town Planning Department of
Respondent No.6, except narrating the facts relating to inter office
correspondence from one department to other, nothing else is mentioned.
The pleadings in the said Affidavits are pertaining to issuance of
communications for joint measurement and demand of necessary finance
from the Government for acquisition of the properties within the jurisdiction
of Malegaon Municipal Corporation and nothing more.
8.1) In para No.3 of Affidavit dated 6 th September 2023, affirmed by
Mr. Shantaram T. Chaure, Town Planner (II) of the Town Planning
Department of Respondent No.6, it is admitted that, the General Body of
Respondent No.6 in its meeting dated 30th November 2021 considered the
proposal of acquisition of land under under reservation at Site No. 110 i.e.
the Petitioner's land and recorded that the Respondent No.6 is unable to
Osk J-WP-1479-2023.doc
acquire the land in question because of the financial condition of
Respondent-Corporation is not good.
9) 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 steps to acquire the property admittedly on
account of its financial condition.
10) Perusal of record thus clearly discloses that, the Respondent
No.6 has failed to take any steps to acquire the land of the Petitioner within
the stipulated period, as contemplated under the provisions of the MRTP Act.
11) The Hon'ble Supreme Court in the case of Girnar Traders Vs.
State of Maharashtra & Others, reported in (2007) 7 SCC 555, 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 vs. 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
Osk J-WP-1479-2023.doc
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 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
Osk J-WP-1479-2023.doc
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 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
Osk J-WP-1479-2023.doc
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. 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
Osk J-WP-1479-2023.doc
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.
12) 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)
Vs. 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
Osk J-WP-1479-2023.doc
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 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.
13) 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 clauses (a) & (b).
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The Petition is accordingly allowed and Rule is made absolute in terms of
prayer clauses (a) & (b).
14) 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.
15) 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.
16) All the concerned to act on an authenticated copy of thus
Judgment.
( KAMAL KHATA, J. ) ( A.S. GADKARI, J. )
OMKAR KUMBHAKARN
SHIVAHAR
KUMBHAKARN Date:
2025.01.21
17:36:42
+0530
