Allowed

Saroj Sashikant Talathi v. Director of Town Planning, Maharashtra State and Ors.

Bombay HC5 Aug 2013WP/5130/2013

Case brief

AI extract

What is this about?

The High Court allowed a writ petition directing the deletion of reservation on a disputed property reserved for a college, holding that the Planning Authority's inaction after a Section 127 notice resulted in deemed lapsing of the reservation.

What did the court decide?

Petition allowed directing deletion of reservation on the property and publication of deletion in the Official Gazette.

Saroj Sashikant Talathi Vs Director of Town… — Municipal and Town Planning | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5130 OF 2013

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Saroj Sashikant Talathi

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.... Petitioner.

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V/s

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Director of Town Planning & Ors

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.... Respondents.

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Mr. S.G. Gavnekar for the Petitioner. Mrs M.P. Thakkar, AGP for Respondent Nos. 1 to 5. Mr. N.N.Bhadrashete for Respondent No.7.

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CORAM: V. M. KANADE & K. R. SHRIRAM, JJ.

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DATE: 5^th August, 2013

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P.C.:- (Per V.M. Kanade, J.)

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Heard.

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Rule. Rule is made returnable forthwith. Respondents waive service. By consent of Parties, matter is taken up for final hearing.

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By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is seeking an appropriate writ, order and direction, directing Respondents to delete reservation on property bearing Survey No.124, Hissa No.4/A, admeasuring 29.9 Ares alongwith Pot Kharaba of 5 Ares

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situated at Pen, Taluka Pen, District Raigad, for “Swami Vivekanand College” and to publish the said deletion of reservation in the Official Gazette.

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Brief facts which are relevant for the purpose of deciding this Petition are as under:-

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Petitioner is the owner of Property bearing Survey No.124, Hissa No.4/A, admeasuring 29.9 Ares along with Pot Kharaba of 5 Ares situated at Pen, Taluka Pen, District Raigad. On 20/12/1985, a Resolution was passed by the Board and the land of the Petitioner alongwith other land was reserved for Town Centre under the revised development plan. Thereafter on 16/12/1988, a Notification was issued under the MRTP Act, 1966 by the Director of Town Planning and the reservation for Town Centre was deleted and the reservation was then shown for “Swami Vivekanand College”. On 3/2/1999, Petitioner served a notice on Respondent No.6 under section 127 of the MRTP Act and also served copies thereof upon Respondent Nos. 1, 2, 3 and 5. On 5/4/1999, Respondent No.6 called upon the Petitioner to submit Gut Book Plan from Office of Talathi and enquired whether the Petitioner was willing to handover possession of the land by private negotiation. On 21/6/1999, Petitioner informed Respondent No.6 that she had served the notice under section 127 of the MRTP Act and that Respondent No.6 was

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bound to take steps for acquiring the said property.

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It is an admitted position that the Respondents have not initiated acquisition proceedings and the only step which they had taken after service of notice under section 127 was to call upon the Petitioner to submit a Gut Book Plan from the Office of Talathi.

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7 It will be fruitful to take into consideration relevant section viz section 127 of the MRTP Act, which reads as under:-

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“127. Lapsing of reservation.- [(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 to that effect; and if within twelve months] from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced 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

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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 ]”

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8 The Apex Court in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants Association and others¹ has held that if no steps are taken by Respondents – Planning Authority after service of notice under section 127, then, in that case, it has to be held that the said land is dereserved. The issue was referred to Full Bench of the Apex Court with regard to meaning of the term “steps to be taken” and the Apex Court in its judgment in Girnar Traders vs. State of Maharashtra & Ors² has observed in paragraph 54 and paragraphs 55 to 58 as under:-

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“54...............If the acquisition is left for a time immemorial in the hands of the concerned authority 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 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

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1 1988 Mh.L.J 1

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2 (2007) 7 SCC 555

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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 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 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 land owner for de-reservation. 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.”

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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 thereof 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 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

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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 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.”

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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 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

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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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“58. The MRTP Act does not contain any reference to Section 4 or Section 5A 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 5A 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 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

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steps for acquisition are commenced.”

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(Emphasis supplied)

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The issue, therefore, is no longer res integra. The Apex Court now in Girnar Traders (II) (supra) has held that merely making an inquiry regarding title documents or seeking information from the Petitioner regarding Gut Book Plan would not tantamount to taking any steps. In view of this since it is not disputed that notice under section 127 was already served on Respondents on 3/2/1999, the reservation will have to be deemed to be deleted.

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Petition is allowed in terms of prayer clauses (a), (c ) and (d). Rule is made absolute accordingly.

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10. Petition is disposed of.

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(K.R. SHRIRAM, J.) (V.M. KANADE, J.)

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bdp

Saroj Sashikant Talathi v. Director of Town Planning, Maharashtra State and Ors.

Case brief

What is this about?

What did the court decide?

Saroj Sashikant Talathi v. Director of Town Planning, Maharashtra State and Ors.

Case brief

What is this about?

What did the court decide?

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