Allowed

Smt. Kamal Khangonda Patil v. Municipal Council of Ichalkaranji, through Chief Executive Officer and Ors.

Bombay HC21 Mar 2014WP/494/2013

Case brief

AI extract

What is this about?

A writ petition challenging the reservation of a land plot for a school. The petitioner Notice under section 127(1) of the MRTP Act without attaching title documents. The High Court held that the Planning Authority waived the mandatory title requirement by acting on the notice and submitting an acquisition proposal. The reservation was consequently declared to have lapsed.

What did the court decide?

Declared the reservation lapsed and plot released for development; directed State of Maharashtra to publish notification under Section 127(2) within three months.

Smt. Kamal Khangonda Patil Vs Municipal Council of… — Land Acquisition | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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APPELLATE SIDE

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WRIT PETITION NO.494 OF 2013

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Smt.Kamal Khangonda Patil : Petitioner V/s. Municipal Council of Ichalkaranji & Ors. : Respondents

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Mr.S.S.Pakale i/b. Mr.Avinaszh Ram Belge for the Petitioner.

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Mr.Tejpal S. Ingale for Respondent nos.1 & 2.

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

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DATE : MARCH 21, 2014.

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ORAL JUDGMENT (Per A.S.Oka, J.)

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We have heard the submissions of the learned counsel appearing for

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the parties on the earlier date. The parties were put to notice that the petition will be taken up for final disposal at the admission stage.

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The Petitioner is claiming to be the owner of a plot of land, more particularly described in paragraph 1 of the petition. The first Respondent Municipal Council is the Planning Authority within the meaning of the Maharashtra Regional and Town Planning Act, 1966 (for short the “MRTP Act”). On 05.03.1999, a development plan for the city of Ichalkaranji was sanctioned by the State Government by exercising the powers under section 31(1) of the MRTP Act. Under the sanctioned development plan, the said

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plot described in paragraph 1 of the petition (for short the “said Plot”) has been reserved vide reservation no.36 for a Primary School and High School.

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As no steps were taken for acquisition of the said plot within a period of ten years from the date on which the development plan was sanctioned, on 13.08.2010, the Petitioner through her Advocate issued a notice under section 127(1) of the MRTP Act. By the said notice, the first Respondent was called upon to acquire the said plot. The contention is that the first Respondent failed to take steps for acquisition of the said plot within the stipulated period of 12 months from the date of service of notice and, therefore, by virtue of sub-section (1) of section 127, the reservation in the sanctioned development plan shall be deemed to have lapsed. Accordingly, the present petition has been filed under Article 226 of the Constitution of India for issuing a writ of mandamus declaring that reservation no.36 imposed on the said plot has lapsed.

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The opposition to this petition by the learned counsel appearing for the first and second Respondents is on the ground that the notice purported to be under section 127(1) of the MRTP Act is not legal and valid as documents showing the title or the interest of the Petitioner in respect of the said Plot were not submitted along with the notice.

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The submission of the learned counsel appearing for the Petitioner is

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that there is no dispute about the title claimed by the Petitioner in relation to the said plot and, therefore, at no stage, any objection was raised by the first to third Respondents regarding her title. He urged that even assuming that the requirement of submitting the documents showing title is held as mandatory, the said requirement has been waived by the first Respondent. He pointed out that more over, acting upon the notice under section 127(1) of the MRTP Act, the first Respondent Municipal Council moved the District Collector for acquisition of the said plot.

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The learned counsel appearing for the first and second Respondents submitted that considering the drastic consequences which flow from non-compliance of the notice under section 127(1), this Court has consistently held that notice issued under the said provision will have to be strictly construed and strict compliance with the requirements with subsection (1) of section 127 is contemplated. He placed reliance on various decisions, including a decision of a Division Bench of this Court in the case of Perfect Machine Tools Co. Ltd . v. State of Maharashtra & Ors .¹ He also relied upon various other decisions following the decision in the case of Perfect Machine Tools Co. Ltd . He urged that the consequences provided under sub-section (1) of section 127 of the MRTP Act will come into existence provided the documents showing title of the Petitioner in the plot were not tendered or submitted along with the notice purported to have been

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1 2008 (2) Mh.L.J. 404

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issued under section 127(1) of the MRTP Act. He urged that the proposal for acquisition was submitted by the first Respondent as the co-owners of the Petitioner had also issued a notice under section 127(1) of the MRTP Act. He, therefore, submitted that the notice being illegal, no relief can be granted in this Petition.

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We have carefully considered the submissions. As far as the factual position is concerned, if the notice relied upon by the Petitioner is a valid notice under section 127(1) of the MRTP Act, in view of the law laid down by the Apex Court in the case of Shrirampur Municipal Council v. Satyabhamabai Bhimaji Dawkher² , the reservation shall be deemed to have lapsed inasmuch as within the statutory period provided under section 127(1) of the MRTP Act, admittedly, a notification either under sub-section (2) or sub-section (4) of section 126 of the MRTP Act has not been issued. The period for issuing such a notification provided in sub-section (1) of section 127 is 12 months from the date of service of the notice. There is no dispute that as provided in sub-section (1) of section 127, documents showing title or interest of the Petitioner in the said plot were admittedly not submitted along with the notice. As held by this Court in several decisions, including the decision in Perfect Machine Tools Co. Ltd ., considering the drastic nature of consequences which flow from non-compliance with notice under sub-section (1) of section 127, the procedural requirement provided in

2 2013 (5) Scale 179

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sub-section (1) of section 127 will have to be held as mandatory. As far as the effect of non-compliance with the mandatory procedural requirement is concerned, the law is well-settled. As held by the Apex Court, a person for whose benefit the mandatory requirement is provided in a statute can always waive the mandatory requirement. Out of several such decisions, one decision is in the case of State Bank of Patiala v. S.K. Sharma³ . In the light of law laid down by the Apex Court that the mandatory requirement can be waived by a party for whose benefit the mandatory requirement is provided, the factual aspect of the case will have to be considered. On a plain reading of sub-section (1) of section 127, the mandatory requirement provided therein of submitting documents showing the title is for the benefit of the Planning Authority. The object seems to be that only a person who has a title or interest in the land reserved in the development plan can issue a notice under sub-section (1) of section 127. The object seems to be that a Planning Authority should not be compelled to act on the basis of a notice issued by a person who has no title or interest in the land which is the subject-matter of reservation. Thus, the said requirement is essentially provided for the benefit of the Planning Authority.

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There is no dispute about the fact that notice dated 13.08.2010 under section 127(1) was served on the Chief Officer of the first Respondent on 28.08.2010. It will be necessary to make a reference to the first reply dated

3 (1996) 3 SCC 364

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19.06.2013 filed by Baban Krushnaji Khot, Sectional Engineer of the first Respondent Municipal Council. It is true that in the first reply itself a contention has been raised that the documents showing title were not supplied by the Petitioner. However, it will be necessary to make a reference to the relevant portion of paragraph 5 of the said reply which reads thus:

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“5. I say that, however, after the receipt of said Notice the Chief Officer of the Respondent No.1 Municipal Council submitted his report to the Municipal Council who by G.B. resolution No.259 dated 27/9/2010 decided to submit proposal for acquisition of Petitioners Land to Collector Kolhapur. Accordingly the Respondent No.1 Municipal Council on 29/12/2010 submitted proposal for acquisition to Collector, Kolhapur.”

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In paragraph 6, it is reiterated that the proposal for acquisition was submitted by the first Respondent long back on 29.11.2010. A copy of the proposal dated 29.12.2010 is annexed to the first reply as annexure-1 which clearly refers to the notice under section 127(1) issued by the Advocate for the Petitioner which is the subject-matter of this Writ Petition. Thereafter, the Petition was amended by raising a contention regarding the waiver on the part of the first Respondent of the requirement of submitting documents showing title. Accordingly, a supplementary reply dated 10.03.2014 was filed by Mr.Dilip S. Chavan, Town Planner of the first Respondent. In paragraph 3 of the said reply, he admitted that after receipt of the purchase notice served by the Petitioner, the first Respondent Planning Authority has

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forwarded the acquisition proposal to the Collector. In further part of the additional reply, it is reiterated that the requirement of submitting document showing title is mandatory.

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We must note here that in both the affidavits, it is not the case of the first Respondent Municipal Council that there is any defect in the title of the petition in respect of the said plot as pleaded by the Petitioner. The Petitioner has pleaded that she is the owner of the said plot. We must note here that the requirement of sub-section (1) of section 127 is not of production of the documents of title. The requirement is of producing the documents showing the title or interest in relation to the reserved property of the person who has served a notice under sub-section (1) of section 127. There are two factual aspects of the matter which go to the root of the matter. The first one is that the first Respondent Municipal Council acted upon the notice and submitted a proposal for acquisition of the said plot to the Collector in the prescribed form. The second crucial fact is that at no stage, the first Respondent disputed the title of the Petitioner as claimed in the notice. No such dispute was raised by the first Respondent by either sending a reply to the notice or by way of affidavit-in-reply. If the Petitioner had sent a notice without enclosing document showing her title, the first Respondent was under no obligation to act upon the notice under section 127(1) and to submit a proposal for acquisition. Considering all the aforesaid facts and circumstances, we are of the considered view that the act

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WP494.2013

of the first Respondent of submitting a proposal to the Collector for initiating acquisition proceedings in respect of the said plot on the basis of the said notice is sufficient to show that the mandatory requirement under sub-section (1) of section 127 which is for the benefit of the first Respondent Planning Authority was waived by the Planning Authority. Moreover, no dispute regarding the title of the Petitioner was raised by the Petitioner.

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Therefore, in the facts of the case, the consequences provided in subsection (1) of section 127 must follow.

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Accordingly, the Petition must succeed and we pass the following order:

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O R D E R

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(i) We declare that the reservation on the plot, more particularly described in paragraph 1 of the petition under the sanctioned development plan dated 05.03.1999 shall be deemed to have lapsed and the said plot shall be deemed to have been released from reservation provided in the sanctioned development plan. Accordingly, the said plot shall become available to the owner for the purpose of development as otherwise permissible in case of adjacent land under the development plan;

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(ii) We direct the State of Maharashtra to publish a notification in terms

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of sub-section (2) of section 127 of the MRTP Act within a period of three moths from today;

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(iii) The Petition is allowed in the above terms. No order as to costs.

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At this stage, the learned counsel for the first Respondent Planning authority submits that this order should not come in the way of the first Respondent from acquiring the said plot under the ordinary law relating to the land acquisition. We must note here that the effect of release of the land from reservation is that on the basis of the sanctioned development plan, the first Respondent is not entitled to take recourse to the acquisition in accordance with section 126 of the MRTP Act. If it is permissible in law, the first Respondent can always take steps to acquire the plot in question by

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taking recourse to the law relating to land acquisition. However, all objections in that regard of the Petitioner are kept open.

Smt. Kamal Khangonda Patil v. Municipal Council of Ichalkaranji, through Chief Executive Officer and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Kamal Khangonda Patil v. Municipal Council of Ichalkaranji, through Chief Executive Officer and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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