Allowed

Anil Banarasidas Jindal Died through Lrs Anita Anil Jindal and Others v. the State of Maharashtra and Others

Bombay HC21 Mar 2018WP/10093/2015

Case brief

AI extract

What is this about?

Petitioners sought de-reservation of their land reserved for a primary school and playground under the Municipal Council plan. The Court held that since the authority failed to acquire the land within ten years and after serving a purchase notice, the reservation lapsed under Section 127 of the MRTP Act, allowing the petitioners to develop the land.

What did the court decide?

Writ petition allowed; rule made absolute directing State to publish notification de-reserving the land under Section 127(2) MRTP Act within six months.

Anil Banarasidas Jindal Died through Lrs Anita Anil Jindal… — Property and Title | Bombay HC (2018)

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wp10093.15

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO.10093 OF 2015

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1. Anil Banarasidas Jindal .. Petitioners Died through legal heirs

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1a. Anita Anil Jindal, Age-42 years, Occu-Household/Agril

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1b. Nikhil S/o. Anil Jindal, Age-22 years, Occu-Business

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1c. Shubham S/o. Anil Jindal, Age- 19 years, Occu-Business,

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All/R/o. “Jindal Manor”, Near Hawaldar Hospital,
Sambhaji Nagar, Jalna.

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2. Narayan S/o. Appasaheb Chalge, Age-45 years, Occu-Business, R/o. Sambhaji Nagar, Jalna Tq. & Dist. Jalna

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Versus

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1. The State of Maharashtra .. Respondents Through its Secretary Urban Development Department Mantralaya, Mumbai

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2. The Director of Town Planning, Maharashtra State, Pune

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3. The Deputy Director of Town Planning, Aurangabad Division, Aurangabad

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4. The District Town Planning Officer, Jalna

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5. The Chief Executive Officer, Municipal Council, Jalna Tq. & Dist. Jalna

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Mr.Mahesh R. Sonawane, Advocate for the petitioners
Mr.S.Y.Majahan, AGP for respondent Nos. 1 and 2
Mr.S.R.Bagal, Advocate for respondent No.5

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CORAM : S.S. SHINDE &

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S.M.GAVHANE, JJ.

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RESERVED ON :12.02.2018

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PRONOUNCED ON :21.03.2018

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J U D G M E N T [PER: S.M. GAVHANE, J.]

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.Rule. Rule made returnable forthwith. With the
consent of the parties the matter is taken up for final
hearing.

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2.By this petition under Article 226 of the
Constitution of India the petitioners have claimed
following substantive reliefs:

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C) To issue Writ of Mandamus or any other writ or direction in the nature of Writ of Mandamus, directing the respondents to De-reserve the property of the petitioner bearing land Survey No.170A, admeasuring 40 R land which is reserved for the purpose of Primary School and play ground from site no.197 and for site no.198 admeasuring 37R for Ground, situated at Jalna, District Jalna, and petitioners be permitted to develop

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said property, and for that purpose issue necessary orders.

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D) To direct the respondents to delete the reservation of land of petitioners from Land Survey No.170A, admeasuring 40 R land which is reserved for the purpose of Primary School and play ground from site no.197 and for site No.198 admeasuring 37R for Ground, situated at Jalna, District Jalna from the development plan as per provisions of the Maharashtra Regional Town Planning Act.

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3.According to the petitioners they are owners and
possessor of the land bearing Survey No.170-A, adm. 40-R
and 37-R, situate within the limits of Jalna Municipal
Council. Out of the said lands 40-R land has been
reserved for Primary School and 37-R land has been
reserved for playground respectively as Site Nos.197 and
198 (the said lands are hereinafter referred to as the
subject lands). Anil Banarasidas Jindal husband of
petitioner No.1a and father of the petitioner Nos.1b and
1c, and petitioner No.2 are the original owners. After
death of Anil Jindal in 2009 as per succession the names
of petitioner Nos. 1a to 1c are mutated in the record and
7/12 extract.

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4.Further it is the case of the petitioners that
on 17.05.1985 the respondent authorities have prepared
and published the draft development plan of Jalna city
and the Director of Town Planning Maharashtra State, Pune
has sanctioned the said development plan of Jalna city

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vide its notification/ordinance dated 17.05.1985 bearing
TPS 2984/2588/CR/326 [N] UD 06 and the notification has
been published in the Maharashtra Government Gazette. In
the said notification at Sr. Nos.55 and 56 land
admeasuring 40-R and land admeasuring 37-R from Survey
No.170 are reserved for ground and primary school
respectively. Respondent No.5 the Planning Authority has
finally prepared and published draft development plan of
Jalna City and the Director of Town Planning Maharashtra
State, Pune has sanctioned the said development plan by
its notification/ordinance dated 04.04.1989 bearing No.
TPS 671/CR/09 UD 12 and the notification has been
published in the Maharashtra Government Gazette. The
final sanctioned development scheme is implemented from
25.05.1989, thereby respective subject lands are finally
put under reservation for public purpose i.e. for primary
school and play ground.

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5.According to the petitioners, the respondent
authorities have not taken any steps whatsoever to
acquire the subject lands within ten years as per the
Maharashtra Regional Town Planning Act, 1966 (hereinafter
referred to as the 'MRTP Act'). Therefore, the
petitioners have issued purchase notice dated 16.05.2001
under Section 127 of the MRTP Act. Thereafter again

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petitioners have sent the notice on 12.02.2003 to the
respondent authorities alongwith relevant documents of
ownership of the petitioners to the subject lands, but
till the year 2012 respondents have not taken steps for
acquisition of the subject lands. Lastly on 19.10.2012
again the petitioners have sent notice under Section 127
of the MRTP Act to the respondent authorities with copy
of 7/12 extract calling upon respondent No.5 Planning
Authority to acquire the subject lands as the same are
not acquired within a period of ten years from the date
of reservation. The respondent authorities received above
notices still they have taken no steps to acquire the
subject lands and also they have not paid compensation as
per the market price. As such, the act of the respondents
is illegal, arbitrary and malafide. The petitioners
contended that till date no proposal for acquisition of
subject lands is forwarded by the Planning Authority, nor
any proposal is pending with the Office of the Special
Land Acquisition nor the declaration under Section 6 of
the Land Acquisition Act has been issued. Therefore, as
the respondent authorities have not taken steps within
one year of service of notice under Section 127 of the
MRTP Act on them the subject lands are available to the
petitioners for development in view of the mandate of
section 127 of the MRTP Act as the subject lands have

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automatically stands de-reserved. Therefore, this
petition to issue directions as referred earlier to the
respondents.

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6.The affidavit of Sukhdeo Anandrao Pawar, Town
Planner Jalna, District Jalna has been filed in-reply on
behalf of respondent Nos. 1,2,3 and 4. In the said
affidavit it is stated that he is filing said affidavit-
in-reply as authorized by respondent Nos.1,2 and 3.
Further contents of the affidavit are that the revised
development plan of Jalna (part revised) was sanctioned
by the Government in Urban Development Department under
the provision of Maharashtra Regional and Town Planning
Act, 1966 vide notification No.TPS-2984/2588/CR-326(A)-
UD-6 dated 17.05.1985 and had come into force with effect
from 15.07.1985. As per sanctioned revised development
plan (partly) of Jalna the subject land bearing Survey
No.170 of Jalna was affected by site No.60 “Primary
School” (having an approximate area of about 0.40
Hectares) and partly affected by Site No.59 “Playground”
(having an approximate area of about 1.50 Hectares).
Partly revised development plan of Jalna was sanctioned
in the year 1985 by the Government in Urban Development
Department and not by the Director of Town Planning
Maharashtra State Pune, as contended by the petitioners.

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Thereafter, the Municipal Council, Jalna decided to
revise the said earlier sanctioned Development Plan under
the provisions of Maharashtra Regional & Town Planning
Act, 1966 and accordingly a Draft Development Plan of
Jalna (2nd Revised) was prepared and the same was
submitted under Section 30(1) of the Maharashtra Regional
and Town Planning Act, 1966 to the Government for final
sanction. The Government in Urban Development Department
partly sanctioned the 2nd revised Development plan under
Section 31 of the said Act vide notification No.TPS-
2912/1091/CR-181/2012/UD-30 dated 02.04.2013. As per 2nd
Revised Development Plan of Jalna the suit land bearing
No.170 of Jalna is affected (with some changes in area
and designation) by Site No.197 Primary School and
playground (having an approximate area of about 0.40
hectares) and Partly affected by Site No.198 Garden
(having an approximate area of about 0.85 hectares).

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7.Further it is stated in the affidavit that the
petitioners have served notice on Municipal Council,
Jalna under Section 127 of the Act vide letter dated
19.10.2012 in respect of reservation for site No.197
Primary school and playground and site No.198 for garden
proposed in 2nd revised draft development plan as
published under Section 26 of the MRTP Act in Government

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gazette on 18.11.2010. The said notice had been received
by the Planning Authority i.e. respondent No.5. The
petitioners served notice on 19.10.2012 within a period
of two years from the date of publication of the Draft
Development Plan under Section 26 of the MRTP Act. Hence,
the notice served on 19.10.2012 by the petitioners on the
planning authority i.e. Municipal Council, Jalna is
premature and the same is not tenable in view of the
provision under Section 127 of the MRTP Act.

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8.The affidavit-in-reply of Santosh Mahadeo
Khandekar, Chief Officer, Municipal Council, Jalna has
been filed on behalf of respondent No.3. In the said
affidavit it is stated that the development plan for
Jalnawassanctionedbytheappropriate
Government/Authorityvidenotification
No.TPS/2984/2588/CR-326(A)-UD-6 dated 17.05.1985 which
came into force with effect from 15.07.1985. As per this
development plan the land of the petitioners in Sr.
No.170 was affected by site No.59 for playground and
second revised development plan of Jalna came to be
sanctioned by appropriate Government/Authority under
Section 31 of the MRTP Act, 1966 vide notification dated
TPS/2912/1091/CR-181/2012/UD-30 dated 02.04.2013. As per
this revised development plan the land of the petitioners

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in survey No.170 is affected by Site No.197 for primary
school and playground and by site No.198 for garden. The
second revised development plan has been sanctioned on
02.04.2013 and therefore the period of ten years
prescribed for acquiring the reserved land would be
available at least upto the year 2023. The said second
revised plan is not challenged by the petitioners. The
notices were issued by the petitioners purportedly as per
Section 127 of the Act or in reference to the earlier
plan/reservation of the year 1985 which has no bearing
upon present plan/reservation. The period provided for
acquisition of land is not yet over and therefore the
reservation as per revised plan is not at all lapsed.
Earlier reservation was for primary school and playground
and now as per second revised plan the land is reserved
for primary school, playground and garden. It is stated
that the present petition sans merit and deserves to be
dismissed.

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9.There is no dispute that subject lands are owned
and possessed by the petitioners and out of the subject
lands 40-R land has been reserved for ground and 37-R
land has been reserved for primary school as per
development plan sanctioned by the Director of Town
Planning Maharashtra State, Pune on 17.05.1985 as

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mentioned at Sr. Nos. 55 and 56 in the said notification.
So also, there is no dispute that said development plan
was published in the Maharashtra Government Gazette on
04.04.1989 and the final sanctioned development scheme is
implemented from 25.05.1989. Moreover, it is not in
dispute that within ten years of sanction of development
plan by notification dated 04.04.1989 and implementation
of final development scheme from 25.05.1989 the
respondent authorities have not taken any steps to
acquire the subject lands. So also, there is no dispute
that the petitioners served in all three notices i.e.
dated 16.05.2001, 12.02.2003 and 19.10.2012 under Section
127 of the MRTP Act on the respondent authorities. But
even after service of said notices the respondent
authorities have not taken steps to acquire the subject
lands within one year of service of said notices on them.

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10.As per reply affidavit filed on behalf of
respondent Nos.1,2,3 and 4 the Government in Urban
Development Department partly sanctioned the 2nd revised
development plan of Jalna under Section 31 of the MRTP
Act vide notification dated 02.04.2013 and as per said
2nd revised development plan out of the subject lands
Site No.197 has been reserved for primary school and
playground and Site No.198 has been reserved for garden

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and the draft development plan (2ndrevised) was
published under Section 26 of the MRTP Act in the
Government gazette on 18.11.2010. The petitioner has not
denied these contentions in the affidavit by filing
rejoinder. Therefore it can be said that earlier
development plan sanctioned on 04.04.1989 was modified
and 2nd revised development plan was sanctioned vide
notification dated 02.04.2013.

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11.We have heard the learned Advocates appearing
for the petitioners, respondent Nos. 5 and learned AGP
for respondent Nos. 1 and 2. With their assistance we
have perused the pleadings and the documents on
record.

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12.Learned Advocate appearing for the petitioners
submits that when the respondent authorities have not
acquired the subject lands within ten years from
publication of development plan on 04.04.1989 and
implementation of final sanction development scheme from
25.05.1989 and further when the said authorities have not
taken steps to acquire the subject lands within one year
of purchase notice dated 12.02.2003 issued by the
petitioners to the said authorities under Section 127 of
the MRTP Act the subject lands have been deemed to be de-

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reserved as a right in that respect has been accrued to the petitioners. Therefore modification of reservation of the subject lands by notification under Section 31 of the MRTP Act dated 02.04.2013 as per second revised development plan adding reservation of garden in the earlier reservation of primary school and playground is not permissible and hence petitioners are entitled to reliefs of declaration and directions as claimed in the petition. To support his submissions learned Advocate appearing for the petitioners has relied upon the decision in the case of Godrej and Boyce Manufacturing Company Ltd. Vs State of Maharashtra and others reported in 2015(11)SCC 554 wherein in para No.20 following observations have been made.

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“20. In view of the abovesaid statement of law declared by this Court in the cases referred to supra, after adverting to the judgment of majority view in Girnar Traders (2) case is accepted in Shrirampur Municipal Council , wherein it is held that Girnar Traders (2) case is not conflicting with Hakimwadi Tenants Assn . Case 5, the statement of law laid down in the abovereferred cases is aptly applicable to the fact situation. Therefore, we have to hold that the impugned notification is bad in law and liable to be quashed. The High Court has not examined the impugned notification from the viewpoint of Section 127 of the MRTP Act

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and interpretation of the abovesaid provision made in Girnar Traders (2), therefore, giving liberty to the appellant by the High Court to file objections of the proposed notification is a futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved for has not been utilised for that purpose and a valid statutory right is acquired by the landowner/interested person after expiry of 10 years from the date of reservation made in the development plan and 6 months notice period has also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Section 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefits of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the development plan from deleting for the purpose of railways and adding to the development plan for the formation of development plan of road after lapse of 10 years and expiry of 6 months notice served upon the State Government.”

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13.In the present case the subject lands were

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reserved for primary school and playground as per
development plan of Jalna city sanctioned by its
notification dated 17.05.1985. The Director of Town
Planning Maharashtra State has sanctioned the said
development plan by its notification dated 04.04.1989 and

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final sanctioned development scheme was implemented from 25.05.1989. The subject lands have not been acquired by the respondent authorities within ten years of publication of development plan in Maharashtra Government Gazette from 04.04.1989 i.e. before 04.04.1999. So also, even after one year of service of the purchase notice dated 12.02.2003 the respondents have not acquired the subject lands. Therefore, applying the ratio laid down in the case of Godrej (Supra) the modification in the reservation by the respondent authorities as per notification dated 02.04.2013 cannot take away the statutory right under Section 127 of the MRTP Act acquired by petitioners land owners. Thus, the contention of respondent No.3 that as the 2^nd revised development plan is sanctioned on 02.04.2013 the period of ten years prescribed for acquiring the reserved land which is available upto 2023 is not over the reservation as per 2^nd revised development plan is not at all lapsed and therefore petitioners are not entitled to declaration claimed in the petition, is not acceptable.

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14.For the reasons discussed herein above as the
respondent authorities have not acquired the subject
lands within ten years of coming into force of
development plan on 25.05.1989 and even after one year of

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purchase notice dated 12.02.2003, as the same is not at
all the case of the respondents, the reservation of the
subject lands has been lapsed and the subject lands are
deemed to have been de-reserved. Therefore, we pass the
following order:

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O R D E R

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a. The Writ Petition is allowed.

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b.Rule is made absolute in terms of prayer
clauses (C) and (D). No order as to costs.

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c.We direct the respondent/State to publish a
notification under Sub-Section (2) of Section
127 of the MRTP Act, as expeditiously as
possible preferably within six months from
today.

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[S.M.GAVHANE,J.] [S.S. SHINDE,J.]

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VishalK/ wp10093.15

Anil Banarasidas Jindal Died through Lrs Anita Anil Jindal and Others v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Anil Banarasidas Jindal Died through Lrs Anita Anil Jindal and Others 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

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