Allowed

Manikrao Tulshiram Kale and Anr. v. the State of Mah and Ors.

Bombay HC22 Oct 2012WP/1265/2012

Case brief

AI extract

What is this about?

Petitioners sought declaration that their land reserved for a stadium in a development plan lapsed due to the planning authority's failure to initiate acquisition proceedings within six months of a notice served under Section 127 of the MRTP Act. The court held that mere application for acquisition does not count as steps; since no acquisition steps were taken, the reservation lapsed, making the l

What did the court decide?

The reservation, allotment, and designation of the subject property shall stand lapsed; the land shall be released and made available to the owners for development as otherwise permissible under the r

Manikrao Tulshiram Kale and Anr. Vs the State of Mah and Ors. — Land Acquisition | Bombay HC (2012)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.1265 OF 2012

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1.Manikrao s/o Tulshiram Kale,
Age: 65 years, Occ: Agri.,
R/o. Partur, Tq. Partur,
District Jalna.
2.Kashinath s/o Punjaram Kale,
Age: 70 years, Occ: Agri.,
R/o. Partur, Tq. Partur,
District Jalna. ...PETITIONERS

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 VERSUS

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1. The State of Maharashtra, Through the Secretary, Urban Development Department, Mantralaya, Mumbai-32.

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2. The Director of Town Planning, Maharashtra State, Town Planning Department, Central Building, Pune.

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3. Deputy Director of Town Planning, Mahada Colony, near Baba Petrol Pump, Aurangabad.

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4. The Chief Officer, Municipal Council, Partur, District Jalna. ...RESPONDENTS

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... Mr. Ajeet B. Kale, Advocate with Mr. N.J. Pahune Patil, Advocate for petitioners. Mr. S.D. Kaldate, A.G.P. for respondent Nos. 1 to 3. Mr. Amol Gandhi, Advocate for respondent No.4. ...

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CORAM: R.M. BORDE &
 S.S. SHINDE, JJ.

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 DATE : 22ND OCTOBER, 2012

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ORAL JUDGMENT : [ PER R.M. BORDE, J.]

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.Rule. Rule made returnable forthwith.

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With consent of the parties, petition is taken up
for final disposal at admission stage.

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2.The petitioners are seeking directions

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against respondents for deletion of land belonging
to them bearing old Survey No. 320 new Survey
No.259/1,259/2 and 259/3 situate at Partur,Taluka
Partur District Jalnafromthereservation,

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designation or allotment as provided under Final
Development Plan prepared for Partur town. The
petitioners are owner of the aforesaid property
situate within limits of Partur town. A
development plan for Partur town was prepared
under the provisions of Maharashtra Regional and

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Town Planning Act, 1966 (for short, "the Act")
whereunder the subject land has been earmarked for

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construction of the 'Stadium'. The reservation

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provided under the plan of 1976 has been

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reinstated in the revised development plan
prepared for Partur town in the year 1992. It is
stated that under the revised development plan,
property is reserved for 'Town Park'. It is
contention of the petitioners that since the
property belonging to them could not be acquired
by the planning authority for development purpose,
the petitioners proceeded to issue notice as
contemplated under section 127 of the Act on 28th
December, 2010 calling upon the planning authority
to initiate acquisition proceedings with immediate
effect and to acquire property and further to pay
compensation amount. The notice issued on 28th
December, 2010 was served on planning authority on

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the same day, however, respondents did not
initiate proceedings for acquisition of the
subject property within time stipulated by section
127 of the Act. The Municipal Council, however,

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has passed a resolution and forwarded to the

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Collector resolving therein that the subject

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property need not be acquired. The fact, however,

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remains that within time stipulated under section
127 of the Act, proceedings for acquisition of the
subject property have not been initiated. It is,
thus, contended by the petitioners that in view of
operation of provisions of section 127 of the Act,
the reservation, designation or allotment made in
the final development plan in respect of subject

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property has came to an end. The petitioners
approached planning authority seeking permission
to develop the property, however, request made by
the petitioners has been turned down. As such,
they are constrained to approach this Court
seeking declaration that the said property stands
deleted from the reservation by operation of
provisions of section 127 of the Act and same is
available to the petitioners for development as
otherwise, permissible in case of adjacent land
under the relevant plan.

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3.Prayer made by the petitioners in the

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petition has been opposed by respondent Nos. 1 to

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3 by presenting affidavit in reply sworn by one
Mr. Sumedh s/o Sudhakarrao Kharwadkar, Town
Planner, Jalna. In paragraph 6(2) of the reply,
it is contended by the respondents that the
petitioners have not served the notice alongwith
documents showing their title or interest in the
said land, as such notice under section 127 of the
M.R.T.P. Act, 1966 is not valid and tenable. It is
contended that since notice issued by the
petitioners is not as contemplated under section
127 of the Act, question of acquisition of
property within time stipulated under section 127
of the Act does not arise and reservation made
under final development plan does not get lapsed.
The Counsel appearing for Municipal Council has
also adopted an identical stand while opposing the
prayer made in the petition.

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4.The Counsel appearing for the petitioners

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has contended that there is no dispute as regards
ownership of the petitioners in respect of subject
property. It is also contended that certified

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copies of 7/12 extracts pertaining to subject
Survey Number has been placed on record by the
petitioners and said documents find place in the
original record maintained by the Municipal
Council. In order to verify the contention raised
by the petitioners, we called upon the Counsel
appearing for respondent No. 2 to make record
maintained by the Municipal Council available for
perusal. On perusal of the record it is found that
certified copies of 7/12 extracts pertainingto
subject property find place in the record of
Municipal Council.

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5.It is contention of the Counsel appearing

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for respondent No. 4 that copies of 7/12 extracts
have been produced at latter stage after
presentation of notice under section 127 of the
Act, however, it has not been disputed that the
documents showing title of petitioners or their
interest in the said land, are available in the
record. The objection raised by the respondents is

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of hyper-technical nature since respondents have

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not disputed ownership and entitlement of the
petitioners in respect of subject property. The
fact, however, remains that in spite of service of
notice under section 127 of the Act, no steps have
been taken by the respondents for acquisition of
the property within time stipulated under the
aforesaid section. Reliance is placed on the
judgment of the Supreme Court in the case of
Girnar Traders vs. State of Maharashtra and
others, reported in (2007) 7 S.C.C. 555. In the
said judgment, the Apex Court has held that the
requisite step should be a step of acquisition of
land and not a step for acquisition of land. The
requisitestepstowardscommencementof

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acquisition in such a situation would not include
step which may not result in actual commencement
of the acquisition and is taken merely for the
purpose of seeking time so that Section 127 does
not come into operation, to defeat the purpose and

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object of the scheme of acquisition under
Maharashtra Regional and Town Planning Act. The
relevant paragraphs in the said judgment i.e.

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paragraphs Nos. 54, 55, 56 and 57 are as quoted

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below.

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"54. When we conjointly read
Sections 126 and 127 of the MRTP
Act, it is apparent that the
legislativeintentisto
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
explainedinMunicipal
Corporation of Greater Bombay
Case. If the acquisition is left
for time immemorial in the hands
of the authority concerned by
simply making an application to
theStateGovernmentfor
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

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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
landbeingreleasedand
available for the land owner for
his utilization as permitted
under Section 127. Section 127
permitted inaction on the part
of the acquisition authorities
for a period of 10 years for de-
reservation 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
land owner for de-reservation.
The steps towards commencement
of the acquisition in such a
situation would necessarily be

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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.

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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 utilization
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

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owner for the benefit of public
cause, but when the State so
acted, it was obliged to
compensate the injured upon
makingjustcompensation.
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.

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56.The underlying principle
envisaged in Section 127 of the
MRTP Act is either to utilize
the land for the purpose it is
reserved in the plan in a given
time or let the owner utilize
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

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whichresultinactual
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
applicationrequestingthe
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
tobeasteptowards
acquisition.

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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

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13 wp1265.12 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. Subsection (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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6.In the instant matter, it is observed

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that respondents have not at all initiated steps
for acquisition of the property. The planning
authority, however, has shown disinclination to
acquire the property.

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7.For the reasons recorded above, writ

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petition deserves to be allowed and same is

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accordingly allowed. Reservation, allotment,
designation in respect of property i.e. old Survey
No. 320 new Survey No. 259/1, 259/2 and 259/3

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situate at Partur, Taluka Partur District Jalna
being Site No. 51 recorded in revised final
development plan prepared in the year 1992 for

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Partur town shall stand lapsed and thereupon land
shall be released from such reservation, allotment

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or designation and shall become available to the
owner for the purpose of development as otherwise,
permissible in case of adjacent land under the
relevant plan. On lapsing of reservation,
allocation or designation of subject property, the

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State Government shall notify the same in the

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official gazette as contemplated under sub section

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(2) of Section 127 of the Act, within period of
six months from today. Rule is accordingly made
absolute. No order as to costs.

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8.Pending civil application, if any, does

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not survive, hence same stands disposed of.

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sut/OCT12

Manikrao Tulshiram Kale and Anr. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

Manikrao Tulshiram Kale and Anr. v. the State of Mah and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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