Allowed

Mallikarjun Shivkaran Shegaonkar and Ors. v. the State of Maharashtra, Ministry of Urban Development Dept and Ors.

Bombay HC23 Jul 2014WP/2062/2013

Case brief

AI extract

What is this about?

The High Court of Bombay held that the reservation on petitioners' land lapsed as the Planning Authority failed to take acquisition steps within one year of a notice validly served on 29 June 2011 following corrected documentation.

What did the court decide?

Petition allowed; reservation declared lapsed; lands available for development; direction to publish notification under Section 127(2).

Mallikarjun Shivkaran Shegaonkar and Ors. Vs the State of… — Property and Title | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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CIVIL WRIT PETITION No. 2062 of 2013.

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Mallikarjun Shivkaran Shegaonkar & Anr ..Petitioners. Vs The State of Maharashtra & ors ..Respondents.

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Shri G.S.Godbole, Advocate i/by Mr Karan Thorat, Advocate for the Petitioners.

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Shri V.P. Malvankar, AGP “A” Panel for Respondent Nos. 1 to 3. Shri Vijay Killedar Advocate for Respondent No.4.

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

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RESERVED ON 16th July,2014.

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PRONOUNCED ON : 23rd July, 2014.

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JUDGMENT (PER : A.S. CHANDURKAR,J)

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1. By order dated 12^th April, 2013 notice for final disposal of the

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writ petition was issued. Accordingly, we have heard the learned Counsel appearing for the petitioners and the respondents at length.

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Rule. Rule made returnable forthwith and heard finally with the consent of parties.

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By this writ petition under Article 226 of the Constitution of India, the petitioners have challenged the order dated 3^rd December, 2012

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passed in proceedings under Section 47 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “the said Act” for short). Similarly, the communication dated 25^th March,2011 issued by respondent No.5 refusing to grant permission to develop the property has been challenged. The petitioners also seek a declaration that they are entitled to develop / construct on the land in question as per proposal dated 4^th February,2011 as the reservation on said land has lapsed in terms of provisions of Section 127 of the said Act.

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The petitioners are owners of land bearing old survey No. 280/1A/1 of village Majrewadi corresponding to new survey No.9/1, 9/2, 9/5, 9/6, 9/7, 9/8, 9/9 of village Majarewadi, Taluka North Solapur, District Solapur.

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The final Development Plan for the city of Solapur issued by the Urban Development Department of the State Government came into force on 31^st August, 1982 and the aforesaid lands were shown to be reserved for the purposes of play ground, primary school, theater, District industries centre and road. According to the petitioners, they had issued purchase notice to the Municipal Corporation which was the Planning Authority under the said Act on 2.2.2010. The Municipal Corporation, however, replied to the aforesaid notice stating that as there were no accompanying documents showing title, the notice issued by the petitioners could not be acted upon. Thereafter, on

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29.6.2011 another notice came to be issued along with necessary 712 extracts of the aforesaid land.

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Besides aforesaid notices, the petitioners sought permission to develop / construct on the aforesaid lands vide application dated 4^th February,2011. The respondent No.5, however, refused to grant aforesaid permission as the said lands were included in the final Development Plan. The appeal filed by the petitioners under Section 47 of the said Act was also dismissed by the State Government by order dated 3^rd December,2012. It is, in this background that the present writ petition has been filed seeking the aforesaid reliefs.

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Shri G.S.Godbole, Advocate along with Shri Karan Thorat, Advocate for the Petitioners submitted that as no steps of acquisition of the lands that were shown to be reserved in the Development Plan were taken within a period of one year from issuance of notice under Section 127 (1) of the said Act the reservation in question had ceased to operate. It was submitted that on account of lapsing of reservation the petitioners were entitled to be granted permission to develop the property as permissible under the said Act and Rules made thereunder. By refusing to grant permission to develop the property, the petitioners were being deprived of using the said property despite the fact that the reservation in question had ceased to operate.

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Shri V.P. Malvankar, the learned AGP appearing for the

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respondent Nos. 1 to 3 submitted that as Respondent No.4 was the Planning Authority, it was for said authority to answer the challenges as made in the said writ petition. Shri Vijay Killedar, the learned Advocate appearing for Respondent No.4 submitted that no documents showing title had been furnished by the petitioners along with their notice dated 2^nd February,2010. Therefore, the Planning Authority had rightly not taken any cognizance of said notice. It was submitted that in absence of necessary documents in that regard, the petitioners could not rely upon initial notice dated 2^nd February,2010. The learned counsel for respondent No.4, however, did not dispute the fact that on 29^th June,2011 the petitioners had submitted 7/12 extracts of the land in question. It was submitted that as the initial notice dated 2^nd February,2010 was not in accordance with law, the same could not be acted upon.

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We have carefully considered the submissions made on behalf of the respective parties. We have also gone through the documents filed along with Writ Petition and the relevant provisions of the said Act.

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It is not in dispute that though the petitioners had initially issued notice on 2^nd February,2010, documents showing title had not been appended thereto. This fact was brought to the petitioners' notice by the respondent No.4 in its reply dated 23^rd June,2011. It is further not in dispute that thereafter on 29^th June, 2011 the petitioners had furnished relevant extracts of

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the revenue records showing their title. Hence, even the letter dated 29^th June, 2011 with which extracts of revenue records were furnished can be treated as a notice under sub-Section (1) of Section 127 of the said Act. Hence, it will have to be examined as to whether any steps of acquisition of the lands in question were taken by the Planning Authority in terms of provisions of Section 127 (1) of the said Act within a period of one year even from 29^th June, 2011.

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The reservation in question would have continued had the Planning Authority taken steps as contemplated by provisions of Section 127 (1) of the said Act within a period of one year from receiving notice from the petitioners. Though the initial notice dated 2^nd February,2010 was not acted upon as the petitioners did not furnish documents showing their title or interest in the land in question, such documents were in fact submitted to the Planning Authority along with the subsequent notice dated 29^th June,2011. Assuming the subsequent notice dated 29^th June,2011 to the one issued under provisions of Section 127 (1) of the said Act, even for a period of one year thereafter no steps of acquisition were taken by the Respondent No.4. Hence, the consequences as contemplated due to such inaction as stipulated under Section 127 (1) of the said Act would necessarily follow. It will have to be declared that the reservation in question has lapsed and the lands in question would become available for purposes of development as permissible. Hence, we pass the following order :

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ORDER

(a) The petition is allowed;

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(b) We declare that the reservation imposed under the sanctioned development plan which came into operation with effect from 31^st August, 1982 in relation to the lands described in paragraph 2 of Writ Petition stands lapsed in accordance with subSection (1) of Section 127 of the Maharashtra Regional and Town Planning Act, 1966;

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(c) Hence, the said lands subject matter of this petition shall become available to the owner thereof for the purposes of development as otherwise permissible in case of adjacent lands under the relevant sanctioned development plan;

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(d) We direct the State Government to publish a Notification under subSection (2) of Section 127 of the said Act within a period of three months from today.

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

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LADDA (PA)

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Mallikarjun Shivkaran Shegaonkar and Ors. v. the State of Maharashtra, Ministry of Urban Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

Mallikarjun Shivkaran Shegaonkar and Ors. v. the State of Maharashtra, Ministry of Urban Development Dept and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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