Allowed

Rangnath Shivram Gondkar v. the State of Maharashtra and Others

Bombay HC6 May 2014WP/1279/2014

Case brief

AI extract

What is this about?

The Bombay High Court held that the reservation of the petitioner's land for a Primary School lapsed because the planning authority failed to acquire it within ten years or take steps within twelve weeks of notice under the MRTP Act. The petition was allowed, and the State was directed to notify the release in the gazette.

What did the court decide?

Petition allowed; reservation and designation deemed ended; land available for development; State directed to notify lapse in gazette within six months.

Rangnath Shivram Gondkar Vs the State of… — Municipal and Town Planning | Bombay HC (2014)

¶1

(1) Writ Petition No. 1279 of 2014

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶3

Writ Petition No. 1279 of 2014

¶4

Rangnath Shivram Gondkar, Age : 81 years, Occupation : Agriculture, R/o. Shirdi, Taluka : Rahata, District : Ahmednagar,

¶5

Through GPA holder - son, Ramdas s/o. Rangnath Gondkar, Age : 48 years, Occupation : Agriculture & Service, R/o. Shirdi, Taluka : Rahata, District : Ahmednagar.

¶6

.. Petitioner.

¶7

versus

¶8

The State of Maharashtra, Through its Principal Secretary, Rural Development & Water Conservation Department, Bandhkam Bhavan, 7th Floor, 25, Marzban Marg, Fort, Mumbai - 400 001.

¶9

The Director of Town Planning, Maharashtra State, Pune.

¶10

Shirdi Nagarpanchayat, Shirdi, Through its Chief Officer.

¶11

The Zilla Parishad, Ahmednagar, Through its Chief Executive Officer. .. Respondents.

¶12

(2) Writ Petition No. 1279 of 2014

¶13

Mr. P.B. Shirsath, Advocate, for the petitioner.

¶14

Mr. S.V. Kurundkar, Government Pleader, for respondent nos.1 and 2.

¶15

Mr. V.D. Hon, Advocate, for respondent no.3.

¶16

Mr. S.T. Shelke, Advocate, for respondent no.4.

¶17

CORAM : R.M. BORDE & A.M. BADAR, JJ.

¶18

DATE : 6TH MAY 2014

¶19

ORAL JUDGMENT (Per A.M. Badar, J.) :

¶20

Rule. Rule made returnable forthwith by consent of parties.

¶21

Heard Mr. P.B. Shirsath, learned Counsel for the petitioner, as well as, Mr. S.V. Kurundkar, learned Government Pleader for respondent nos.1 and 2; Mr. V.D. Hon, learned Counsel for respondent no.3 - Municipal Council; and Mr. S.T. Shelke, learned Counsel for respondent no.4.

¶22

By this petition, the petitioner is seeking declaration that his land from Survey No. 53/6 of Shirdi, admeasuring 0.557 Hectares, is released from reservation and is available for the purpose of development.

¶23

The planning authority - Municipal Council, Shirdi, prepared

¶24

(3) Writ Petition No. 1279 of 2014

¶25

a Draft Development Plan on 24-4-1991, and ultimately, the Final Development Plan was published on 7-1-1993, and came in force with effect from 25-2-1993. The land owned by the petitioner from Survey No. 53/6 is shown at Site No. 24, in the Final Development Plan and the said site is shown as reserved for “Primary School”. The contention of the petitioner is that, though period of 10 years has lapsed from the date of publication of Final Development Plan, said land is neither acquired nor purchased by respondent no.3 - Municipal Council / planning authority. Therefore, petitioner issued a purchase notice dated 6-12-2012, under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 [For short, “MRTP Act” ], and the same was served on respondent no.3 - planning authority, as well as, respondent no.4 - Zilla Parishad.

¶26

The petition came to be opposed by filing affidavits in reply by respondent nos.3 and 4. It is not disputed that, the Final Development Plan of Shirdi came into force with effect from 25-2-1993, and Survey No. 53, Part CTS No. 880, is shown to have been reserved for Primary School of Zilla Parishad. It is contended by respondent no.3 - Municipal Council, Shirdi, that only part of Gut No. 53 is shown as reserved. The Municipal Council further contended that, in the purchase notice issued by the petitioner, a reference to Section 127 of the MRTP Act is not given and necessary documents are not produced. Respondent no.4 - Zilla Parishad, in its affidavit accepted the fact that the petitioner issued a notice dated 6-12-2012, and further contended that the Zilla Parishad, on receipt of notice, has requested the State Government to provide funds for acquisition of the land involved in the petition. According to respondent no.4 - Zilla Parishad, its financial position is not such as to enable it to

¶27

(4) Writ Petition No. 1279 of 2014

¶28

purchase the land by paying compensation. According to respondent no.4 - Zilla Parishad, the School Education Department has informed it that the funds for acquisition of the land cannot be provided to it and, therefore, it made request to Shri Saibaba Sansthan, Shirdi, for providing funds. Similar request is made to Hon'ble Guardian Minister of Ahmednagar, for sanctioning the funds from the District Planning & Development Council.

¶29

The undisputed position emerging from the pleading of parties is to the effect that, the Final Development Plan of Shirdi came into force with effect from 25th February 1993, and land from Survey No. 53 is shown as reserved for Primary School vide Reservation No. 24. Undisputedly, no steps for acquisition of the said land for more than 10 years were taken by the planning authority and ultimately the petitioner was constrained to serve a notice dated 6-12-2012 on respondent no.3 - planning authority, as well as, respondent no.4 - Zilla Parishad, as contemplated under Section 127 of the MRTP Act. However, despite lapse of one year from service of that notice, no steps for acquisition are taken by the respondents.

¶30

The question, which falls for consideration in the instant petition is, whether the reluctance on the part of the respondents in acquiring the land owned by the petitioner from Survey No. 53/6 of Shirdi, for a period of 10 years and their further inaction in not acquiring or taking steps for acquisition of the said land within a period of 12 months from the receipt of purchase notice under Section 127 of the MRTP Act, amounts to lapsing of reservation and release of the land in question from the reservation, allotment or designation. This question is no more res-integra.

¶31

(5) Writ Petition No. 1279 of 2014

¶32

In the matter of Girnar Traders (II) vs. State of Maharashtra and others reported in (2007)7 SCC 555, the Honourable Apex court has been pleased to answer this issue in para.54 & 57, thus :-

¶33

“54....... If the acquisition is left for
time immemorial in the hands of the
authority concerned 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 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
landowner for his utilisation 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 landowner for dereservation.
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.

¶34

57.It may 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

¶35

(6) Writ Petition No. 1279 of 2014

¶36

for acquisition of the land. On
construction of Section 126 which provides
for acquisition of the land under the MRPT
At, 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
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.”

¶37

Section 127 of MRTP Act provides that 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 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 twelve weeks 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

¶38

(7) Writ Petition No. 1279 of 2014

¶39

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. In the instant matter, since planning authority failed to take steps for acquisition of land as contemplated under Land Acquisition Act so also planning authority did not acquire the property by entering into private negotiation with petitioner, reservation, allotment or designation for the purpose specified in the plan in relation to the property has come to an end and the land is available to the owner for the purpose of development as otherwise permissible in case of adjacent land under the relevant act.

¶40

In the instant case, since the planning authority is not in a position to purchase the land and has not taken steps for acquisition of the property of the petitioner shown as reserved for, “Primary School” within a period of one year from the date of receipt of the purchase notice under Section 127 of the MRTP Act, the reservation made in respect of the subject property in the Final Development Plan, has come to an end. It is seen from the letter dated 14-12-2012 (Annexure "E"), issued by the Chief Officer, Municipal Council, Shirdi, to the Chief Executive Officer, Zilla Parishad, Ahmednagar, that, the Municipal Council had asked the Zilla Parishad to take necessary action for acquisition of the reserved land by accepting the fact that Survey No. 53/6, owned by the petitioner, is shown to have been reserved for Zilla Parishad Primary School vide Reservation No. 24. Therefore, it does not lie in the mouth of respondent - Municipal Council, that the petitioner has not furnished relevant documents or that it is not certain whether land of the petitioner is covered by reservation for Site No. 24. It is seen that, neither the planning authority nor the Zilla Parishad are

¶41

(8) Writ Petition No. 1279 of 2014

¶42

in a position to acquire this land for establishment of Primary School. Vide letter dated 18-12-2012 (Annexure "F"), the Block Education Officer of Panchayat Samiti, Rahata, after having discussion with the Head Master of Zilla Parishad School, informed the Education Officer (Primary), Zilla Parishad, Ahmednagar, that, Survey No. 53/6 is not suitable for Primary School. It is, thus, clear that the respondents are not at all interested in acquiring the land of the petitioner though it is shown to have been reserved for Primary School in the Development Plan.

¶43

In this view of the matter, petition deserves to be allowed and the same is accordingly allowed. Reservation, allotment and designation specified in the development plan in respect of land belonging to the petitioner shall be deemed to have come to an end and the land shall be deemed to have become available to the owner for the purpose of development as otherwise permissible in case of adjacent land under relevant plan. The State Government is directed to take steps and shall notify lapsing of reservation in official gazette, as expeditiously as possible, preferably within a period of six months from today.

¶44

Rule made absolute accordingly. In the facts and circumstances of the case, there shall be no order as to costs.

¶45

( A.M. BADAR ) ( R.M. BORDE ) JUDGE JUDGE

¶46

bgp/wp1279

Rangnath Shivram Gondkar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Rangnath Shivram Gondkar v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Arun Rajdhar Patil Vs the State of Maharashtra and Others

Chennari Network Infrastructure Limited Vs the Aurangabad Municipal Corporation and Others

Dhondiram Maroti Dumale and Othrs Vs the State of Maharashtra and Others

Dinkar Madhavrao Deore and Others Vs the State of Maharashtra and Others

Murlidhar Eknath Rishipathak Vs the State of Maharashtra and Others

Kisan Textile, Joint Venture Firm Vs the State of Maharashtra and Another