Namdeo Murlidhar Pingale and Ors. Vs the State of Maharashtra and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.6445 OF 2008

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 Namdeo Murlidhar Pingale & Ors. ...Petitioner.
 V/s.
 The State of Maharashtra & Ors. ...Respondents.

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 Mr.M.S.Karnik with Sachin Gite , advs. for the Petitioner.

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 Mr.V.A.Sonpal, AGP for the Respondent/State.

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 Mr.M.L.Patil, adv. for the Respondent No.2.

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 Mr.R.C.Master with Smt.S.V.Bharucha, advs. for the
 Respondent No.3.

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 CORAM: Bilal Nazki&
J.H.Bhatia,JJ.
 DATE : 10th December, 2008.

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P.C.:

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 1. Rule.

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 2. Petitioner’s petition is heard with consent of the
 learned counsel for the parties finally.

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 3. Petitioner contends that he is the owner of the
 land in Survey No.428/4 admeasuring 23 R situated at
 Village: Makhmalabad within the jurisdiction of Nashik
 Municipal Corporation. Development plan for the Nashik
 Municipal Corporation was published in the year 1993.The
 land belonging to the petitioner was reserved for a

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 post-office. After a lapse of twelve years from the
 publication of notice under the Maharashtra Regional Town
 Planning Act, no steps were taken by the State for
 acquisition of the land. Therefore, he sent the notice on
 25-1-2007 in terms of Section 127 of the Act. He contends
 that in terms of Section 126, land should be treated to be
 un-reserved as no steps envisaged under Section 127 were
 taken by the respondents to acquire the land. Section 127
 is reproduced below:

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 "127. Lapsing of reservation.- 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
 proceedings for the acquisition of such land under
 this Act or under the Land Acquisition Act, 1894,
 (I of 1984), are not commenced within such period,
 the owner or any person interested in the land may
 serve notice on the planning authority,
 development authority or as the case may be,
 Appropriate authority to that effect; and if
 within six 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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 Respondent/State has not filed any counter. The respondent
 no.3 have filed their counter in which they have stated
 that they have informed the State Government with respect

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 to their intention to pay for acquisition of the land as
 they need the land for construction of the post office. It
 is also submitted that no notice was given by the
 petitioner to the Director General, Post Office whereas the
 notice to the respondent no.3 is conceded. Section 127
 envisages notice be given to the planning authority,
 development authority or appropriate authority. The
 learned counsel for the petitioner submits that notice was
 given to the Senior Superintendent, Post Office, which was
 a appropriate authority as the land has been reserved for
 its use. It is also contended by the learned counsel for
 the petitioner that no steps as envisaged under Section 127
 were taken up for acquisition of land and any letters
 written by the respondent no.3 to the Collector would not
 constitute a step within the meaning of Section 127 and the
 matter is concluded by the judgment of the Supreme Court
 reported in Girnar Traders v. State of Maharashtra Supreme

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Court Cases (2007) 7 SCC 557. In paragraph 57 of the
 judgment, the Supreme Court held:

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 "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

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 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.
 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."

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 Since no steps have been taken within six months of notice
 given by the petitioner to the respondents. Writ Petition
 deserves to be allowed and it is declared that the land in
 question be treated as non-reserved.

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(Bilal Nazki, J.)

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(J.H.Bhatia, J.)

Namdeo Murlidhar Pingale and Ors. v. the State of Maharashtra and Ors.

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Namdeo Murlidhar Pingale and Ors. v. the State of Maharashtra and Ors.

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