Dismissed

Pankaj Suresh Borole and Anr. v. the State of Maharashtra and Ors.

Bombay HC17 Oct 2018WP/3471/2009

Case brief

AI extract

What is this about?

In a writ petition challenging the reservation of land, the Court held that merely serving a notice under Section 49 of the M.R.T.P. Act does not cause the reservation to lapse unless a second notice under Section 127 is served. Applying the Supreme Court in Chhabildas, the Court dismissed the petition.

What did the court decide?

Writ petition dismissed; no costs; rule discharged.

Pankaj Suresh Borole and Anr. Vs the State of… — Specific Performance | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 3471 OF 2009

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1. Pankaj s/o. Suresh Borole, Age : 28 years, Occ. Business, r/o. Pankaj Nagar, Chopda, Dist. Jalgaon

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2. Hemlata w/o. Suresh Borole, Age : 48 years, Occ. Business, r/o. Pankaj Nagar, Chopda, Dist. Jalgaon ..Petitioners

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Vs.

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1. The State of Maharashtra, Through 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 Administrative Officer, Town Planning and Valuation Department, Central Building, Pune

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4. The Assistant Director, Town Planning and Valuation Department, B.J. Market, Jalgaon

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5. The Commissioner, Municipal Corporation, Jalgaon

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..Respondents

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Mr.V.D.Hon, Senior Advocate i/b. Mr.K.B.Jadhav,
Advocate for petitioners

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Mr.A.V.Deshmukh, AGP for respondent nos.1 to 4

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Mr.P.R.Patil, Advocate for respondent no.5

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 CORAM : S.V. GANGAPURWALA AND
R.G. AVACHAT, JJ.
 DATE : OCTOBER 17, 2018

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ORAL JUDGMENT (Per S.V.Gangapurwala, J.):-

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Heard Mr.Hon, the learned Senior Advocate

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for the petitioners, the learned AGP for respondent

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nos.1 to 4 and Mr.Patil, learned Advocate for
respondent no.5.

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2.Mr.Hon, the learned Senior Advocate for the

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petitioners contends that the petitioners are the
owners and possessors of the land survey no.183 ad-
measuring 13765 sq. metres, situate at Mehrun, Tq.
and Dist. Jalgaon, within the limits of Municipal
Corporation, Jalgaon. The said survey number is
reserved for garden under reservation no.154 in the
Development Plan dated 11.02.2002. On 26.08.2002,
the previous owner issued purchase notice under

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3 6-wp.3471-09

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Section 49 of the Maharashtra Regional Town Planning

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Act, 1966 (“M.R.T.P. Act”, for short). The learned
Advocate submits that on 08.01.2003, respondent no.2
replied to the previous owner that the notice ought
to have been given to respondent no.1. Thereafter,
on 22.01.2003, the original owners issued a fresh
purchase notice to respondent no.1. On 30.05.2003,
the State Government confirmed the purchase notice.
On 04.06.2003, the Collector granted N.A. Permission
and thereafter, the petitioners purchased the land
from the original owner under a registered sale-deed.
On 14.11.2005, the petitioners made a representation
to the respondents that the reservation has lapsed.
On 31.10.2008, the State Government wrote to
Municipal Corporation to send a proposal under
Section 37 of the M.R.T.P. Act for deletion of the
said land. The learned Senior Advocate submits that
since no steps were taken by respondent no.5 within
the stipulated period, the reservation on the said
land has lapsed.

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respondent no.5, submits that the land is reserved
for garden. As such, the reservation would not
lapse. The learned Advocate relies on the judgment in
the case of Chhabildas Vs. State of Maharashtra and

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ors., (2018) 2 SCC 784 to contend that even if the
notice under Section 49 of the M.R.T.P. was issued,
still a second purchase notice must be served under
Section 127 of the M.R.T.P. Act. Mr.Patil, the
learned Advocate for respondent no.5, further
submits that the proposal was sent by the Corporation
to the Collector on 17.09.2003 for acquisition.

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4.The aforesaid factual matrix is not

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disputed. The writ land is reserved for garden in
the development plan published on 11.02.2002. The
original owner issued a purchase notice under Section
49 of the M.R.T.P. Act on 26.08.2002. The purchase
notice was confirmed on 30.05.2003. On 17.09.2003,
the proposal was sent by the Corporation to the

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5 6-wp.3471-09

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Collector for acquisition of the land. It appears

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that after issuance of the notice under Section 49 of

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the M.R.T.P. Act, notice under Section 127 of the
M.R.T.P. Act has not been issued. The Apex Court in

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the case of Chhabildas (supra) has observed in
paragraph 23 as under :-

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23. On a conspectus of the above
authorities, the following position in
law emerges:

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23.1.In all Section 49 cases,
where a purchase notice has been
served and is confirmed within the
period specified, the appropriate
authority must make an application to
acquire the land within one year from

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the date of confirmation of the
notice. If it does not do so, the
reservation, designation, etc. shall
be deemed to have lapsed.

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23.2.Ifwithintheperiod
specified in Section 49(7), the

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6-wp.3471-09

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appropriate authority makes the
requisite application, then the State
Government may acquire the land by
making a declaration under Section 6
of the Land Acquisition Act as set out
under Section 126(4), wherein the
market value shall be the market value
of the land as on the date of the
Section 6 declaration. Ordinarily,
such declaration must be made within 1
year of the date of receipt of the
requisite application. In case this is
not done, it will be open to the
aggrieved person to move the Court to
direct the State Government to make
the requisite declaration immediately.

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23.3.If 10 years have passed from
the date of publication of the plan in
question, and a purchase notice has
been served under Section 127,and no
steps have been taken within a period
of one year from the date of service
of such notice, all proceedings shall
be deemed to have lapsed. Thus, even
in cases covered by Section 49, the
drill of Section 126(4) and Section

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127 will have to be followed,
subsequenttotheappropriate
authority making an application to
acquire the land within the period
specified in Section 49(7).

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It was further observed in paragraph 30, as under :-

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“30.In the present case, 15 years
have passed since the date of
publication of the development plan,
and over 10 years have passed since
the date of the purchase notice issued
under Section 49. Considering the fact
that there has been no stay at any
stage by any Court, it is clear that
an inordinately long period of time
has elapsed, both since the date of
publication of the development plan,

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as well as the date of the purchase
notice served under Section 49. No
doubt, the letter of 26.9.2008 shows
that an application was made within
the requisite time period to acquire
the aforesaid land. However, on the
facts of this case, since after the

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aforesaid letter nothing has been done
to acquire the appellant's property,
we are of the view that the
reservationcontainedinthe
developmentplanaswellas

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acquisition proposal have lapsed. We
make it clear that we hold this in
order to do complete justice between
the parties under Article 142 of the
Constitution of India. However, in all
future cases that may arise under the
provisions of Section 49, the drill of
Section 127 must be followed, i.e.that
after 10 years have elapsed from the
date of publication of the relevant
plan, a second purchase notice must be
served in accordance with the
provisions of Section 127, in order
that lapsing can take place under the
aforesaid section.”

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5.The Apex Court has observed that in all
future cases that may arise under the provisions of
Section 49, the drill of Section 127 must be followed
i.e. upon lapse of 10 years from the date of

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9 6-wp.3471-09

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publication of the relevant plan, a second purchase
notice must be served in accordance with the
provisions of Section 127, in order that lapsing can
take place under the aforesaid section. Mr.Hon, the
learned Senior Advocate for the petitioners, submits
that in the present case, the purchase notice under
Section 49 of M.R.T.P. Act, was issued much prior to
the date of the judgment of the Apex Court in the
case of Chhabildas (supra) and as such, the said
judgment is not applicable to the facts of the
present case.

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6.In the case of Chhabildas (supra), the Apex

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Court exercised its jurisdiction under Article 142 of
the Constitution of India. The present case would be
covered by the judgment of the the Apex Court in
Chhabildas (supra). The purchase notice under Section
49 of M.R.T.P. Act issued on 22.01.2003 is confirmed

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by the State Government on 30.05.2003. On 17.09.2003
viz. within one year, the proposal is sent by the
Municipal Corporation to the Collector for

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acquisition of the writ land. In absence of issuance

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of second purchase notice under Section 127
M.R.T.P. Act and in view of judgment of Apex Court in
Chhabildas (supra), the reservation on the writ land
would not lapse, merely by giving notice under
Section 49 of the M.R.T.P. Act.

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7.In the light of the above, no relief can be

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granted to the petitioners. The Writ Petition is

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dismissed. No costs. Rule is discharged.

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kbp

Pankaj Suresh Borole and Anr. v. the State of Maharashtra and Ors.

Case brief

What is this about?

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Pankaj Suresh Borole and Anr. v. the State of Maharashtra and Ors.

Case brief

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