Allowed

Abutalab Samsher Golandaj and Ors. v. State of Maharashtra, through Dept of Urban Development and Ors.

Bombay HC23 Jun 2014WP/11192/2012

Case brief

AI extract

What is this about?

In this writ petition, petitioners challenged the reservation of land for a school arguing it lapsed due to failure to acquire the land within the statutory period. The High Court, relying on Supreme Court precedents, held that no acquisition steps were taken within 12 months. The Court declared the reservation lapsed and released the land for development.

What did the court decide?

Declared that the reserved land stands released from reservation and becomes available for development; directed notification issuance within three months.

Abutalab Samsher Golandaj and Ors. Vs State of Maharashtra… — Land Acquisition | Bombay HC (2014)

Deshmane PPD

WP.11192-12.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO.11192 OF 2012

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Abutalab Samsher Golandaj, Age : 78 yrs. Occu. Agri.

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Abubakar Samsher Golandaj, Age : 74 yrs. Occu. Agri.

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Abufazal Samsher Golandaj, Age : 65 yrs. Occu. Agri.

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All R/o. Kurundwad, Tal. Shirol, Dist. Kolhapur. ..Petitioners

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Versus

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State of Maharashtra Through Department of Urban Development, Mantralaya, Mumbai.

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Chief Executive Officer, Zilla Parishad, Nagala Park, Kolhapur.

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Assistant Director, Town Planning, Bindu Chowk, Kolhapur.

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Kurundwad Municipal Council, Through its Chief Officer, Kurundwad, Tal. Shirol, Dist. Kolhapur. ..Respondents

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Mr. D.V. Sutar, for the Petitioners. Mr. V.S. Gokhale, AGP, for Respondent Nos.1 & 3. Mr. Ramesh D. Rane, for Respondent No.2. Mr. Ashish Pawar i/b. Mr. Manoj Patil, for Respondent No.4.

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CORAM : A.S. OKA, AND A. S. CHANDURKAR, JJ.

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RESERVED ON : 16^th JUNE, 2014

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PRONOUNCED ON : 23^rd JUNE, 2014

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ORAL JUDGMENT : [ PER A.S. CHANDURKAR,J.]

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Rule. Heard finally with the consent of the learned Counsel for the parties.

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The petitioners in the present Writ Petition seek declaration that the reservation with regard to land Gat No.241 (old Survey No.664) admeasuring 0.59 Ha. situated at Kurundwad, District – Kolhapur, has lapsed in view of provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as “the said Act”, for short). Similarly, resolution dated 5^th October, 2012 passed by the Municipal Council (Respondent No.4) with regard to proposal for

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modification in the Development Plan under Section 37 of the said Act, is also sought to be challenged.

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The facts insofar as they are relevant to adjudicate the issue involved are that :

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The Revised Development Plan with regard to

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Kurundwad Municipal Council came into force on 15^th July, 1985. In the said Revised Development Plan, Gat No.241(old Survey No.664) was reserved for Primary School and playground in relation to Zilla Parishad, Kolhapur. On 1^st January, 1993 the aforesaid draft Development Plan was modified under Section 37 of the said Act and the reservation was restricted to an area admeasuring 0.59 Ha.. On 2^nd November, 2011, a notice under Section 127 of the said Act was issued on behalf of the petitioners to the Assistant Director of Town Planning, Kolhapur Zilla Parishad through its Chief Executive Officer and Kurundwad Municipal Council through its Chief Officer. As no steps whatsoever were taken for acquiring the aforesaid land in terms of provisions of Sections 126 and 127 of the said Act, the petitioners have approached this Court by way of present Writ Petition seeking the

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aforesaid reliefs.

Shri D.V. Sutar, the learned Counsel for the petitioners has submitted that in terms of provisions of Section 127 of the said Act, it was necessary for the respondent Nos.2 and 3 to have taken all necessary steps with regard to acquisition of the land in question. As there was failure on the part of the Planning Authority / Appropriate Authority to take any steps whatsoever in terms of the aforesaid provisions, the reservation in question stands lapsed in view of provisions of Section 127 of the said Act. The learned Counsel for the petitioners placed reliance upon the judgment of Hon'ble Supreme Court in the case of Girnar Traders Vs. State of Maharashtra & Ors.¹ and an unreported common judgment passed by the Division Bench of this Court dated 31^st March, 2012 in Writ Petition No.3954/2006 and connected matters ( Harendra Bhikubhai Adhyaru & Ors. Vs. The State of Maharashtra & Ors.] . It is, therefore, urged that the petitioners were entitled for the reliefs as prayed.

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Shri V.S. Gokhale, the learned A.G.P. appearing for

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1 (2007) 7 Supreme Court Cases 555

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respondent Nos.1 & 3 submitted, on the basis of affidavitinreply dated 22^nd October, 2013, that it was for Zilla Parishad, Kolhapur which was the Appropriate Authority to have taken necessary steps for acquiring the aforesaid land as the same was reserved for establishing school and playground.

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Shri Ashish Pawar, the learned Counsel for respondent No.4, relying upon affidavitinreply dated 17^th June, 2013, did not dispute the service of notice under Section 127 of the said Act. It is submitted that the Municipal Council had made necessary communication with the office of the Zilla Parishad, and it was for the Zilla Parishad to have taken necessary steps for acquiring the said land.

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Shri Ramesh Rane, the learned Counsel for respondent No.2 submitted, by relying upon affidavitinreply dated 14^th January, 2013, that the Zilla Parishad was in need of the aforesaid land for establishing its school and playground. It was submitted that the Zilla Parishad has issued a letter dated 21^st January, 2012 to the Block Education Officer, Panchayat Samiti, Shirol for taking necessary steps and for appointing Acquisition Officer in that

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regard. However, service of notice under Section 127 of the said Act or validity of the said notice, was not questioned.

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We have considered the aforesaid submissions made on

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behalf of the parties. We have also gone through the documents on record. Issuance and service of notice under Section 127 of the said Act is not in dispute. Similarly, legality of the said notice has not been questioned by the respondents. Even other factual aspects as regards nature of reservation and its extent is not in dispute. Hence, the legal effect of issuance of notice under Section 127 of the said Act and steps taken pursuant thereto will have to be examined. The law with regard to interpretation of provisions of Section 127 of the said Act is no longer res integra. If no steps of acquisition of the land under reservation for which notice under Section 127 of the said Act has been issued, are taken within a period of 12 months from the date of service of such notice, then the reservation in question will be deemed to have lapsed and such land would be deemed to be released from such reservation and would become available to the owner for development as is permissible in the case of adjacent land under

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the relevant plan.

The learned Counsel for the petitioners has rightly placed

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reliance upon the judgment of the Hon'ble Supreme Court in the case of Girnar Traders (supra) and on an unreported judgment of the Division Bench of this Court in the case of Harendra Bhikubhai Adhyaru & Ors. (supra). Mere desire on the part of the Appropriate Authority that the reservation in question should continue, is not sufficient. The steps as contemplated by the provisions of Section 127(1) of the said Act are required to be taken. Admittedly, no steps for acquisition of the land in question have been taken. Mere communication to commence the process of acquisition is held to be insufficient to prevent lapsing of the reservation.

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In view of the clear law laid down by the Hon'ble Supreme Court in the case of Girnar Traders (supra) and subsequently reiterated in the case of Shrirampur Municipal Council Vs. Satyabhamabai Bhimaji Dawkher² we are of the view that the petitioners are entitled to a declaration that the

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2 (2013) 5 SCC 627

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reservation in question has lapsed in view of provisions of Section 127 of the said Act.

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In view of lapsing of reservation for the reasons aforesaid, the question of considering the validity of resolution dated 5^th October, 2012 with regard to modification of the aforesaid plan under Section 37 of the said Act, does not arise.

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Accordingly, the Petition is allowed in following terms : (a) It is declared that the land admeasuring 0.59 Ha. at Gat No.241( old Survey No.664), situated at Kurundwad, District – Kolhapur, stands released from reservation at site No.27 under the Revised Development Plan for the city of Kurundwad that was sanctioned on 1^st January, 1993.

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(b) As a consequence of the lapse of reservation, the said land shall become available to the owners for the purpose of development as otherwise permissible in case of adjacent land under the Development Plan;

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(c) We direct that notification as contemplated by subsection 2 of section 127 of the said Act shall be issued within a period of three months from today;

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(d) The Petition is disposed of on above terms. Rule made absolute accordingly with no order as to costs.

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(A. S. CHANDURKAR, J.) (A. S. OKA, J.)

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Abutalab Samsher Golandaj and Ors. v. State of Maharashtra, through Dept of Urban Development and Ors.

Case brief

What is this about?

What did the court decide?

Abutalab Samsher Golandaj and Ors. v. State of Maharashtra, through Dept of Urban Development and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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