Allowed

Ghanshamdas Pannalal Agrawal and Another v. the State of Maharashtra and Others

Bombay HC2 Aug 2014WP/2379/2014

Case brief

AI extract

What is this about?

In a writ petition, landowners sought de-reservation of their property under Section 127 of the MRTP Act. The High Court held that the planning authority's failure to publish a notification under Section 6 of the Land Acquisition Act within the statutory period resulted in the lapse of the reservation for a primary school and playground.

What did the court decide?

It is declared that the land is no longer reserved; Respondent No.1 to issue notification under Section 127(2) of the MRTP Act within six months.

Ghanshamdas Pannalal Agrawal and Another Vs the State of… — Land Acquisition | Bombay HC (2014)

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THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. APPELLATE SIDE JURISDICTION

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WRIT PETITION NO. 2379 OF 2014

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1.	Ghanshamdas s/o Pannalal Agrawal, Age : 68 Years, Occu : Trader,
2.	Satyanarayan @ Satishkumar s/o Pannalal Agrawal, Age : 61 Yeras, Occupation : Trader, Both R/o Ghat Road, Chalisgaon, District : Jalgaon. ...PETITIONERS
	V E R S U S
1.	The State of Maharashtra, Through it's Principal Secretary, Urban, Development Department, Mantralaya, Mumbai – 400032.
2.	Director of Town Planning, Maharashtra State, Central Building, Pune.
3.	Deputy Director of Town Planning, Nashik Region, Nashik, District – Nashik.
4.	Assistant Director of Town Planning, Jalgaon, District – Jalgaon.
5.	Municipal Council, Chalisgaon, District – Jalgaon, Through its Chief Officer. ...RESPONDENTS
(Res High	pondent Nos.1 to 4 to be served through Government Pleader, Court of Bombay, Bench Aurangabad.)

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Mr. P.R.Patil, Advocate for the Petitioners. Mr. Mrs.S.G.Chincholkar, AGP for Respondent Nos.1 to 4. Mr. R.N.Dhorde, Senior Counsel, i/b Mr. V.R.Dhorde, Advocate for Respondent No.5

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CORAM : R. M. BORDE and V. L. ACHLIYA, JJ. DATE : 02^nd August, 2014.

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JUDGMENT: ( Per V.L. Achliya, J. )

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1 Heard.

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2 Rule. Rule made returnable forthwith. With the consent of the learned counsel appearing for the parties, the petition is taken up for final disposal at admission stage.

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3 The Petitioners claim that they are the owners of land bearing CTS No.2399/1-A out of Survey No.41-B, Chalisgaon, District Jalgaon, which is reserved as Reservation Site No.18 for primary school and playground (hereinafter referred to as “the said land”). It is the say of the Petitioners that the said land is kept reserved for primary school and playground from the year 1964 onwards by the Planning Authority. The said land is shown reserved in the successive development plan prepared by the Planning authority for Chalisgaon. The last development plan of Chalisgaon was sanctioned by Respondent No.2 – Director of Town Planning on 22^nd December, 1989 and same came into force from 1^st March, 1990. It is the contention of the Petitioners that though the period of more than ten years has lapsed still said land is shown as reserved for

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primary school and playground in the successive development plan. The Respondent No.5 – Municipal Council, Chalisgaon has not taken any effective steps to acquire said land for the purpose for which it is shown reserved in the development plan.

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4 In view of the inaction on the part of Respondent No.5 – Municipal Council to acquire and utilize the land for the purpose for which the same has been reserved, the Petitioners have issued notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as “the MRTP Act”) to Respondent No.5 – Municipal Council, Chalisgaon. A copy of the said notice was also sent to the Collector, Jalgaon and Assistant Director of Town Planning, Chalisgaon. The notice was issued on 15^th July, 2009. It was duly received and acknowledged by Respondent No.5 – Municipal Council vide their communication dated 18^th July, 2009 addressed to Petitioners. By notice issued under Section 127 of the MRTP Act, the Petitioners have brought to notice of Respondent No.5 that though the said land is reserved for primary school and playground in the development plan, since the year 1964 and onward in the successive development plans finalized by the Planning Authority and the last development plan was brought in to force on 1^st March, 1990, still no steps have been taken to utilize and acquire said land for the purpose for which same is reserved. The Petitioners have requested the Respondent No.5 – Municipal Council to do the needful as per the law in the matter.

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5 In response to said notice issued, Respondent No.5 – Municipal Council vide their letter dated 18^th July, 2009

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communicated to Petitioners that the proposal in respect of the said land will be placed for consideration in the General Body Meeting of Respondent No.5 – Municipal Council. Respondent No.5 – Municipal Council in its General Body Meeting held on 12^th August, 2009 considered the notice issued by the Petitioner and resolved to acquire land and to submit proposal for acquisition of said land to District Collector, Jalgaon. Respondent No.5 – Municipal Council vide letter dated 2^nd December, 2009 communicated to Petitioners the decision taken in the General Body Meeting of the Municipal Council and proposal sent by the Municipal Council to the District Collector, Jalgaon on 16^th October, 2009 for acquisition of said land. It was further communicated that after receipt of approval from Collector further steps will be taken by the Municipal Council. The Assistant Director Town Planning, Jalgaon has also communicated its remark to the District Collector, Jalgaon in respect of the proposal sent by Respondent No.5 – Municipal Council for acquisition of said land. The Assistant Director Town Planning has informed the District Collector, Jalgaon that the proposal submitted by the Municipal Council is proper and it has no objection to initiate proceedings to issue notification under Section 6 of the Land Acquisition Act and Section 126(4) of the MRTP Act.

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6 It is the say of the Petitioners that inspite of notice dated 15^th July, 2009 issued to Respondent no.5, no effective steps were taken within the stipulated period prescribed under Section 127 of the MRTP Act, and thereafter, till filing of petition, to acquire said land. On the contrary, the Special Land Acquisition Officer, Jalgaon in

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response to their application dated 26^th February, 2010, made under the provisions of Right to Information Act, 2005, communicated vide letter dated 2^nd March, 2010 that their office has not received any proposal for acquisition of land in respect of City Survey No.2399/1-A (R.S.No.41/B) reservation Site No.18. Thus, it is the say of the Petitioners that inspite of issuance of notice under Section 127 of the MRTP Act, Respondent No.5 – Municipal Council, Chalisgaon has failed to take steps to acquire said land owned by the Petitioners. In view of failure on the part of Planning Authority to take effective steps to acquire the land reserved in development plan within the stipulated period, prescribed under said provisions of law, the reservation, allotment or designation in respect of said land deemed to have lapsed and same shall deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development. The Petitioners have sought relief in the nature of directions from this Court to de-reserve the land.

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7 Respondent Nos.1 to 4 though appeared in the matter, they have failed to file affidavit in reply. Respondent No.5 has filed affidavit in reply. In nutshell, Respondent No.5 has not disputed the facts as averred in the petition and discussed in the foregoing paras. Respondent No.5 has not disputed the fact that the land in question is shown as reserved for playground and primary school in the development plan. Respondent No.5 has also not disputed issuance of notice under Section 127 of the MRTP Act by the Petitioners and receipt of the same by the Municipal Council as well as the resolution passed by the Municipal Council to forward the proposal to the

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District Collector, Jalgaon for acquisition of said land by invoking powers under the provisions of the Land Acquisition Act. It is the say of the Petitioners that Respondent No.5 has passed resolution on 12^th August, 2009 to acquire said land and forwarded the proposal to the District Collector, Jalgaon with request to initiate proceedings for acquisition of said land. The proposal was submitted to District Collector, Jalgaon on 16^th August, 2009. Subsequent thereto, the Municipal Council has modified its earlier resolution dated 12^th August, 2009 to rectify the mistake in respect of wrong survey number quoted in the resolution dated 12^th August, 2009. After rectifying the mistake, the resolution was passed on 14^th May, 2010. Thereafter, Respondent No.5 has resubmitted proposal to the District Collector, Jalgaon for acquisition of said land. The Assistant Director of Town Planning, Jalgaon has also informed the Collector vide their letter dated 27^th October, 2009 to take necessary steps for acquisition of said land. In nutshell, it is contended by Respondent No.5 that the process of acquisition is under progress and the Collector is taking further action in the matter and therefore, the petition is liable to be dismissed.

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8 We have heard the learned counsel appearing for the respective parties.

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9 We have already discussed in the forgoing paras that the facts relating to ownership of land by the Petitioners, reservation of said land in the development plan for the purpose of primary school and playground, is not in dispute. The fact is also not in dispute that in the development plan published by the Director of Town Planning

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as TPV-47782 on 22^nd December, 1989 and brought into force with effect from 1^st March, 1990, the said land is reserved as reservation Site No.18 in the development plan for primary school and playground. The fact is also not in dispute that for a period of more than ten years, the planning authority has not taken any steps to acquire the land. It is also not disputed that after the period of ten years, the Petitioners have issued notice on 15^th July, 2009 as contemplated under Section 127 of the MRTP Act and the notice was duly received by Respondent No.5 – Municipal Council, Chalisgaon. The fact is not in dispute that after receipt of notice within the time stipulated under Section 127 of the MRTP Act and thereafter, no effective steps have been taken by the concerned Authority for acquisition of said land. In view of these undisputed facts, we have no hesitation to hold that by virtue of Section 127 of the MRTP Act, failure on the part of the Planning Authority to take effective steps to acquire the land in question, reserved in the development plan, within a period of one year from the date of receipt of the statutory notice under Section 127 of the MRTP Act, the reservation of said land deemed to have lapsed and the same shall be deemed to have released from such reservation and become available to the land owners for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan.

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10 The contention of Respondent No.5 that the proposal is submitted to the Collector for acquisition of land way-back in the year 2010, is of no avail to accept the contentions of Respondent No.5 that they have taken effective steps within the stipulated time for

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acquisition of land. It is well settled position in law that mere submission of a proposal for acquisition of land reserved in Development Plan, is not sufficient to accept that the steps have been taken by the Planning Authority within the stipulated time to acquire the land reserved under the development plan. It is well settled position in law that effective steps for acquisition of land as contemplated under Section 127 of the MRTP Act, necessarily means publication of notification under Section 6 of the Land Acquisition Act. In this context, the learned counsel for the Petitioners has rightly placed reliance upon the decision of the Apex Court in the case of Shrirampur Municipal Council, Shrirampur Vs. Satyabhamabai Bhimaji Dawkher and others , reported in [ (2013) 5 Supreme Court Cases 627 ] and few other decisions of this Court on this issue. In para Nos.42 and 43 of said judgment, the Apex Court has observed as under:

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“42. We are further of the view that the majority in Girnar Traders (2)1 [ Girnar Traders (2) V. State of Maharashtra, (2007) 7 SCC 555 ] had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government.

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The expression “no steps as aforesaid”

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used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/ other interested persons, whose land is utilised for execution of the development plan/ town planning scheme, etc., are not left high and dry. This is the reason why time-limit of ten years has been prescribed in Section 31 (5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade's interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300-A of the

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Constitution.”

11 Taking into consideration the undisputed fact of this case and totality of the circumstances, we are of the view that the Planning Authority has failed to acquire the said land within the stipulated period prescribed under Section 127 of the MRTP Act after receipt of the notice sent by the Petitioners, which was duly served on the Planning Authority. On account of failure to comply with the mandatory requirement of Section 127 of the MRTP Act i.e. initiating land acquisition proceeding within six months after issuance of notice as contemplated under Section 127 of the MRTP Act, the reservation, allotment or designation in respect of subject property shall be deemed to have been lapsed and the subject property is available to the land owners for the purposes of development under the relevant plan, as in the case of adjacent land.

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12 In view of the discussion made in the forgoing paras, the petition filed by the Petitioners deserves to be allowed.

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13 In the result, the petition succeeds. It is hereby declared that the reservation, allotment or designation prescribed in respect of Reservation Site No.18, Survey No.41-B situated at Chalisgaon, District Jalgaon shall be deemed to have been lapsed and the said property shall stand released from such reservation, allotment or designation and shall become available to the Petitioners – owners for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. The Respondent No.1 is directed to issue notification as contemplated under Section 127 (2)

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of the MRTP Act within six months from today.

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14 Rule is made absolute in above terms. In the circumstances, there shall be no order as to costs.

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[ V. L. ACHLIYA, J. ] [ R. M. BORDE, J. ]

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ndm