Quashed

Madanlal Lalchand Jain v. the State of Mah and Anr.

Bombay HC20 Jan 2012WP/5780/2009

Case brief

AI extract

What is this about?

Petitioner sought release of land from town planning reservation as the acquiring authority failed to complete acquisition within six months of notice. Court held reservation lapsed and rights restored upon citing Apex Court precedents, quashing the municipal order.

What did the court decide?

Reservation of lands deemed lapsed; land available for petitioner's development; order of Director of Town Planning quashed and set aside; Rule made absolute.

Madanlal Lalchand Jain Vs the State of Mah and Anr. — 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.5780/2009

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Madanlal Lalchand Jain .. Petitioner

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Versus The State of Maharashtra and another ... Respondents

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.... Mr.J.R.Shah,Adv.for petitioner. Mr.V.B.Ghatge,AGP for Respondent no.1 Mr.A.B.Girase,Adv, for respondent no.2.

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CORAM : NARESH H.PATIL AND T.V.NALAWADE, JJ.

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DATE : 20th JANUARY 2012

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ORAL JUDGMENT : [Per T.V.NALAWADE,J.]

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1] Rule. Rule is made returnable forthwith. By consent of the

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parties petition is heard finally.

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2] The petition is filed under Article 226 of the Constitution of

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India for issuing writ of mandamus to the effect that the lands of petitioner need to be treated as released from reservation made under Maharashtra Regional Town Planning Act [for short MRTP Act]. The petitioner is the owner of land survey no.30/1 and 36/1/A situated at Nandurbar. The area of the first land is 8700 Sq.Mtrs. and the second land is 3807.50 Sq.Mtrs. The Draft Development Plan for Nandurbar came to be published on 14/2/1976 under the provisions of MRTP Act. The said plan was sanctioned by the State Government on 6/1/1979 and it came into effect from 19/3/1979. It is contended that the area of 4500 Sq.Mtrs. of land survey no.30/1 and the area of 3807.50 Sq.Mtrs of the second land came to be reserved under the Draft Development Plan and they were together given Site NO.6 in the plan.

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3] It is the case of petitioner that even after 27 years of the date of coming into force of the Development Plan, the respondents who include the acquiring body and the State Government, did not take any steps for acquisition of the lands. It is contended that the petitioner issued two notices on 21/2/2006 and 29/5/2006 under

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the provisions of Section 127 of MRTP Act and called upon second respondent, municipal council to acquire the reserved lands. It is contended that both the notices were received by the respondents but no steps were taken for acquisition of the lands. It is contended that the municipal council in general body passed resolution on 27/5/2006 under Resolution No.12 to the effect that it is unable to acquire aforesaid lands for the purpose of which they are shown to be reserved in Development Plan. The lands are shown to be reserved for garden. It is contended that as no effective steps were taken for acquisition of lands within 6 months from the date of the notice, a declaration needs to be made that the lands are released from the reservation.

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4] It is the case of petitioner that application was made on 14/11/2008 for permission of development of the lands, for construction of a building but permission is refused by the municipal council by letter dated 21/1/2009. It is contended that it is informed that in revised plan, the lands are again shown to be served and this time, they are in Site No.25. It is contended that

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appeal was preferred against the aforesaid decision and it came to be rejected on 30/6/2009. The petitioner has prayed for relief of setting aside and quashing the order dated 30/6/2009 passed by first respondent, for declaration that the aforesaid two lands are free from the reservation which is shown to be made in aforesaid development plans and other consequential reliefs.

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5] The other side mainly relied on the observations made by Director, Town Planning, in the order dated 30/6/2009. The appeal is dismissed by the Director by observing that the petitioner ought to have taken steps under Section 49 of MRTP Act.

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6] No reply as such is filed by respondent but during arguments, it was not disputed that the petitioner has served the notices u/s 127 of MRTP Act as mentioned in the petition. It is also not disputed that municipal council has passed resolution that it is not practical for it to acquire the lands of the petitioner. In these circumstances and the law laid down the Apex Court in this regard, the matter needs to be decided.

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7] In Writ Petition No.744/2004 [Suresh Jaiswal V/s State of Maharashtra] decided on 13/8/2007, this Court [Coram : Naresh H.Patil and R.M.Borde,JJ.] has considered the points which are raised in the present matter by both sides. The facts of this reported case were similar. The relevant observations are at paragraph nos.14 and 15 which are as under :

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“14] The issue regarding computation of period of ten years and whether earlier period of reservation which was prior to the revised development plan coming into effect should be taken into consideration or not has now been finally settled by the Apex Court in the case of Bhavnagar University Vs. Palitana Sugar Mills (P) Ltd. 2002 DGLS 973 : (2003) 2 S.C.C. 111. The Apex Court has held as under :

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“The question however, is as to whether only because the provision of section 20 has been referred to therein, would it mean that there by the legislature contemplated that the time of ten years specified by the legislature for the purposes of acquisition of the land would get

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automatically extended ? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given their full effect, we must also give effect to the words – so far as may be applied to such revision.

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The said words indicate the intention of the legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act in our opinion does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other.

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Section 21 does not envisage that despite the fact that in terms of sub-section (2) of Section 20, the designation of land shall lapse, the same only because a draft revised plan is made, would

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automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land owner under section 22 of getting the land defreezed. In the event the submission of the learned SolicitorGeneral is accepted the same would completely render the provisions of section 20(2) otiose and redundant.-

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In the case of Kishor Gopalrao Bapat Vs. State of Maharashtra, 2005 (5) Bom.C.R. 682 : 2005(4) Mh.L.J. 466 it was observed in paragraph 11 as follows :

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11] The question, which falls for our consideration in the present petition is whether the Planning Authority exercising power under section 38 of the MRTP Act, which deals with revision of development plan, can take away the rights accrued to the owner of the land on account of lapsing of reservation in view of contingencies mentioned in section 127 of the MRTP Act. Similar factual and legal situation arose in the case of (Bapurao Bhondiba Salokhe Vs. Kolhapur Municipal Corporation, Kolhapur), 3, 2003 (5) Bom.C.R.232 (cited supra) and this

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Court after taking into consideration the law laid down by the Apex Court in Bhavnagar university Vs. Palitana Sugar Millls (P) Ltd. and others, 2002 DGLS 973 : 2003(1) S.C.C. 111, in paragraph (17) observed thus :

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-The legal position as regards MRTP Act on the basis of aforesaid observations made by the Apex Court in Bhavnagar University emerges that by imposition of a statutory obligation under section 38 on the part of the State or the appropriate authority to revise the development plan the rights of the owners accrued in terms of section 127 are not taken away. Section 38 of the MRTP Act, in our opinion, does not and cannot be read to mean that substantial right conferred upon the owner of the land or the person interested under section 127 is taken away. In other words, section 38 does not envisage that despite the fact that in terms of section 127, the reservation lapsed, only because of a draft revised development plan or final revised development plan is made would not automatically result in revival of reservation that had lapsed. If the reservation of the petitioner's land for the purposes of garden had lapsed and

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as we found in fact has lapsed on 28/2/1992, because of draft revised plan made in the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation -

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15] We, therefore, find that the notice under section 127 of the Act was perfectly served on the respondents. As the respondent – Municipal Council who could have initiated appropriate proceedings for acquisition of the land failed to take effective steps after receipt of the notice issued by the petitioner within the prescribed period of six months, the reservation of the subject land under the initial notification issued on 3/6/1976, would lapse and the land would be deemed to have been released from the reservation and the same would be available to the owner for its development.”

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8] In the case reported as (2011) 3 S.C.C. page 1 [Girnar Traders (3) V/s State of Maharashtra] the Constitution Bench of the Apex Court has discussed all the relevant provisions in aforesaid regard. The Apex Court has observed that only when

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the land is vested due to acquisition proceedings in the Government/authority, there will be no revesting of land in the owner under the provisions of Land Acquisition Act. The provisions of Land Acquisition Act are also discussed. In view of law laid down in Bhavnagar University’s case referred by this Court in Writ Petition no.744/04, that the reservation lapses after the prescribed period and there cannot be automatic revival of the reservation only due to the revision of the plan and in view of the facts of the present case that no effective steps were taken within a prescribed period by the respondents for acquisition of the land, this Court holds that the reservation is deemed to have been lapsed. We, therefore, hold and declare that the reservation of aforesaid two lands in the Development Plan and Revised Plan of municipal council, Nandurbar is lapsed and the land is available to the petitioner/owner for its development. The order passed by Director of Town Planning, which is under challenge is quashed and set aside. Rule is made absolute in these terms.

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(NARESH H. PATIL,J.)

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(T.V.NALAWADE, J.)

Madanlal Lalchand Jain v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

Madanlal Lalchand Jain v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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