Allowed

Vishwanath Dagadu Kothule and Ors. v. Nashik Municipal Corporation and Ors.

Bombay HC11 Jul 2014WP/3043/2010

Case brief

AI extract

What is this about?

Five writ petitions challenged land reservation under the Maharashtra Regional and Town Planning Act after notices were issued over a year prior. The Court held that the one-year lapse period under Section 127 expired before acquisition steps. Consequently, the reservation lapsed, releasing the land for development, and invalidating a subsequent notification for acquisition of the same reserved la

What did the court decide?

The reservation lapsing; the land released for permissible development; the subsequent acquisition notification declared inoperative.

Vishwanath Dagadu Kothule and Ors. Vs Nashik Municipal… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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CIVIL WRIT PETITION No. 3043 of 2010

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Vishwanath Dagadu Kothule & ors.

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..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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ALONG WITH

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CIVIL WRIT PETITION No. 3044 of 2010

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Balu Raghunath Kothule & ors.

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..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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ALONG WITH

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CIVIL WRIT PETITION No. 3045 of 2010

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Balu Ramji Kothule & ors.

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..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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ALONG WITH

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CIVIL WRIT PETITION No. 3046 of 2010

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Smt. Gayabai Savliram Kothule & ors.

..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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ALONG WITH CIVIL WRIT PETITION No. 2898 of 2010

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Ganpat Appaji Kothule & ors.

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..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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ALONG WITH CIVIL WRIT PETITION No. 3051 of 2010

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Baburao Dharma Kothule & ors.

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..Petitioners.

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Nashik Municipal Corporation & ors

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..Respondents.

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Mr R.D. Soni a/with Mr V.R. Kasale, Advocates i/by M/s Ram & Co. for the petitioners in all petitions.

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Mr V.A.Gangal & Ashok Gude, Advocates for Respondent Nos. 1 and 2 in all petitions. Mr V.S.Gokhale, AGP for Respondent No.3 in all petitions.

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CORAM :A.S. OKA & A.S.CHANDURKAR,JJ CORAM :- 11^th July, 2014.

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

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Since common issues arise in all these writ petitions, they

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are being decided by this common judgment.

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Rule. Rule made returnable forthwith and heard finally

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with the consent of the learned Counsel for the parties.

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The petitioners are owners of lands situated in the City of Nashik that were reserved for various public purposes in the final development plan of the City of Nashik. Said final development plan was sanctioned by the State Government on 26^th June, 1993. However, despite lapse of the period of ten years therefrom the aforesaid lands were not acquired by the Planning Authority. Hence, the petitioners issued notices under Section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “the said Act”).

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Particulars thereof are given in the accompanying chart.

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Sr No.	WP No. of 2010.	Survey No.	Nature of Reservation	Notice under Section 127
1	3043/2010	79 / 6 /1	Dispensary, Maternity, Home, Library and Town Hall	13.5.2009 received on 19.5.2009
2	3044/2010	79 / 7/3	Library and Town Hall.	18.5.2009 received on 22.5.2009
3	3045/2010	79/6/2/2	Dispensary, Maternity, Home, Library and Town Hall	13.5.2009 received on 12.6.2009
4	2898/2010	79 /7 /1	Dispensary, Maternity, Home, Library and Town Hall	18.5.2009 received on 22.5.2009
5	3046/2010	79/ 7 / 2	Dispensary, Maternity, Home, Library and Town Hall	18.5.2009 received on 22.5.2009

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6	3051/2010	79/6/2/1	Dispensary, Maternity,	13.5.2009
			Home, Library and	received on
			Town Hall	12.6.2009

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After the lapse of period of one year from receiving the

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aforesaid notices issued under Section 127 of the said Act, the petitioners approached this Court by filing the present writ petitions seeking declaration that the reservation with regard to their respective lands had lapsed in view of provisions of Section 127 of the said Act. During pendency of the present writ petitions, a Notification under Section 126 (4) of the said Act read with Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act of 1894”) came to be issued on 17^th August,2010 and the same was thereafter published in the Government Gazette on 9^th September, 2010. Thereafter, the writ petitions have been amended and the notification issued under Section 126 (4) of the said Act read with Section 6 of the Act of 1894, dated 9^th September, 2010 has also been challenged.

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Shri R.D. Soni along with Shri V.R.Kasale appearing for the petitioners in all the writ petitions submitted that in lieu of the provisions of Section 127 (1) of the said Act as no steps of acquisition of the lands in question had been taken by the Respondent No.1, the reservation with regard to said lands had lapsed. It was submitted

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that in view of the law laid down by the Apex Court in the case of

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Girnar Traders Vs. the State of Maharashtra and others (2007) 7 SCC

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55 issuance of notification under Section 6 of the Act, 1894 would be of no avail and the consequences as stipulated under Section 127 (1) of the said Act should follow. It was further submitted that there is no dispute whatsoever as regards issuance of statutory notice under Section 127 (1) of the said Act and receipt thereof by Respondent No.1. It was therefore submitted that the petitioners were entitled to the declaration that their respective lands stood released as the reservation in question had lapsed and the said lands could be developed in the manner as permissible under the development plan. 6) Shri V.A. Gangal along with Shri Ashok Gade appearing for Respondent Nos. 1 and 2 relying upon the affidavit in reply filed by the Estate Manager of Nashik Municipal Corporation, has submitted that various steps had been taken by the Planning Authority with a view to ensure that the lands in question were duly acquired so that they could be used for the purpose for which they were reserved. It was submitted that the Planning Authority should not be made to suffer on account of delay caused by the State Government in initiating and completing the process of acquisition.

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Shri V.S.Gokhale, learned AGP has also opposed the writ petitions and has relied upon the affidavit filed by the Assistant Director of Town Planning,Nashik. It has been stated therein that the Planning Authority had submitted the proposal for acquisition of the lands in question and thereafter notification under Section 6 of the Act of 1894 was published on 9^th September,2010. It was, therefore, submitted that the reservation for the lands in question continued and the same had not lapsed.

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We have considered the submissions made on behalf of the respective parties. We have also gone through the material on record as well as the law laid down by the Supreme Court of India in that regard. The issue, therefore, that is required to be determined is whether the issuance of Notification under Section 126(4) of the said Act read with Section 6 of the said Act of 1894 after a period of one year from the service of purchase notice would annure to the benefit of the Planning Authority and thereby prevent lapsing of reservation of said lands under provisions of Section 127 (1) of the said Act.

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The issuance of notice by each of the petitioners under Section 127 (1) of the said Act and receipt thereof by the respondent No.1 is not in dispute. It is further not in dispute that within a period

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of one year from the receipt of aforesaid notices no steps of acquisition of the lands in question have been taken by the respondents. As regards the expression “no steps as aforesaid are commenced for its acquisition” is concerned, the same has been considered by the Supreme Court of India in the case of Girnar Traders (supra) in paragraph 57 thereof it has been held as under :

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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 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

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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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In these writ petitions notification under Section 126 (4) of the said Act read with Section 6 of the Act of 1894 was published in the Government Gazette on 9^th September, 2010. Such publication is after expiry of the period of one year from the receipt of notices from the petitioner under Section 127 (1) of the said Act. It is, therefore, clear that as such steps have been taken after expiry of the period of one year, the consequences as contemplated in sub-Section (1) of Section 127 would follow. In view of aforesaid provision the reservation with regard to lands in question ceases to operate and hence the same would be deemed to have been released from reservation.

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In so far as notification dated 9^th September, 2010 issued under provisions of Section 126 (4) of the said Act read with Section 6 of the Act of 1894 is concerned, a perusal thereof would indicate that the lands that are the subject matter of the present proceedings are sought to be acquired for the purposes for which they were shown to be reserved in the development plan dated 28^th June, 1993. The public purpose mentioned in said notification is the same for which the aforesaid lands were shown to be reserved under the said Final Development Plan. However, as observed herein above as “no steps as aforesaid are commenced for its acquisition” in terms of provisions of

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Section 127 (1) of the said Act, the aforesaid reservations have lapsed. As the reservation itself has ceased to operate, there would be no occasion to acquire the said lands under the provisions of Section 126 (4) of the said Act read with Section 6 of the Act of 1894 for the aforesaid purpose. In other words, once the reservation has lapsed due to operation of the provisions of Section 127 (1) of the said Act subsequent notification issued under Section 126 (4) of the said Act read with Section 6 of the Act of 1894 seeking to acquire the very same lands for the purpose for which they were shown to be reserved would not be permissible. Thus, notification dated 9^th September, 2010 issued under 126(4) of the said Act read with Section 6 of the Act of 1894 would not operate in relation to the lands that are the subject matter of these writ petitions. However, it is necessary to clarify here that independent of the provisions of Section 126 of the said Act, it would be open for the competent authority to acquire said lands by resorting to the provisions of the Land Acquisition Act as applicable if otherwise permissible in law.

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In view of the aforesaid reasons, we pass the following order:

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ORDER

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(a) The petitions are allowed;

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(b) We declare that the reservation imposed under the sanctioned development plan which came into operation with effect from 16^th November, 1993 in relation to the lands described in paragraph 1 of each Writ Petition stands

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lapsed in accordance with sub-Section (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 these petitions shall become available to the owners 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 sub-Section (2) of Section 127 of the said Act within a period of three months from today;

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(e) It is further declared that the Notification dated 9^th September, 2010 under Section 126 (4) of the said Act read with Section 6 of the Act of 1894 would not operate in so far as the lands, more particularly described in paragraph 3 of the judgment.

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(A.S. CHANDURKAR, J)

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(A. S. OKA,J)

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Ladda RS

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Vishwanath Dagadu Kothule and Ors. v. Nashik Municipal Corporation and Ors.

Case brief

What is this about?

What did the court decide?

Vishwanath Dagadu Kothule and Ors. v. Nashik Municipal Corporation and Ors.

Case brief

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