1 wp-4787-97 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4787 OF 1997 M/s. Mehta Jaising Combine a Trust registered under the Indian Trust Act, having its office address at 398, Kirti Kunj, 14th floor, Khar, Bombay. .. Petitioner Vs. 1. State of Maharashtra in its Urban Development Department, 4th floor, Mantralaya, Mumbai – 400 032. 2. Director, Town Planning, Maharashtra, Pune – 411 001. 3. Commissioner, Pune Division, Pune. 4. President, Lonavala Municipal Council. 5. Chief Officer – Lonavala Municipal Council, Lonavala. 6. Indian Post and Telegraph Department 7. Union of India .. Respondents Ms. Kiran Bhagalia for petitioner. Mr. C.R. Sonawane, AGP for respondent nos.1 to 3. Mr. D.A. Dube for respondent nos.5 and 6. 2 wp-4787-97 CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. August 25, 2010. ORAL JUDGMENT (Per B. H. Marlapalle,J.) 1. This petition, filed under Article 226 of the Constitution, prays for a declaration that the reservation of the petitioner’s land bearing Survey No.10 (Part), CTS No. 285 and admeasuring about 1633 sq.mtrs. located at village Valwan, Lonavala, has lapsed and for further direction to the respondents to sanction the building plans submitted by the petitioner in accordance with the Development Control Rules, as applicable to the Municipal Council of Lonavala. 2. The petitioner is a Trust registered under the Indian Trust Act and it owns land bearing Revenue Survey No.10 (Part), CTS No. 285 of village Valwan, Lonavala and admeasuring about 11407 sq.mtrs. Out of the said plot area, an area admeasuring 1633 sq.mtrs. came to be reserved in the sanctioned development plan of Lonavala Municipal Council, that 3 wp-4787-97 came into force on 20/2/1978, for the staff quarters of Post and Telegraph Department. Since no steps were taken for acquisition of the said reserved land admeasuring 1633 sq.mtrs., after the development plan was brought into force on 20/2/1978, nor was any attempt to acquire the said land, the petitioner issued a notice under Section 49 of the Maharashtra Regional and Town Planning Act, 1966 on 28/9/1990. The petitioner received a reply to the said purchase notice on 11/1/1991 from the Director of Town Planning and thereby confirming that the purchase notice dated 28/9/1990 was received by the State Government and the said letter further stated that necessary instructions were given to the Postal Department for initiating acquisition proceedings. The petitioner issued another letter dated 26/2/1992 addressed to the Director of Town Planning, pointing out that the reservation had lapsed and no steps were taken to acquire the land. It was further prayed that the land be released from the designated reservation. No reply as received from the Director of Town Planning. On 23/4/1992, the petitioner submitted a lay-out plan for sanction to the Chief Engineer, Lonavala Municipal Council and it was rejected as the land was reserved. An appeal under Section 47 of the MRTP Act to the Director of Town Planning was dismissed and on the basis of the proposal dated 13/3/1991 submitted by the Post and Telegraph Department to the Collector for 4 wp-4787-97 acquisition of the subject land. However, there was no progress in the acquisition proceedings as well and the petitioner addressed a letter on 28/5/1997 to the Commissioner, Pune Division, requesting to complete the land acquisition proceedings or in the alternative to release the land from reservation. Nothing further materialized in the land acquisition proposal and, therefore, this petition came to be filed. 3. Shri Hanumant Nazirkar, Assistant Director of Town Planning, Pune as well as Shri D. D. Sawant, Special Land Acquisition Officer No. 14, Pune, have filed affidavits-in-reply. The affidavit filed by the Assistant Director of Town Planning admits that the petitioner served a purchase notice under Section 49 of the MRTP Act, 1966 on 27/9/1990 and the said notice was confirmed on 11/9/1991 i.e. within the stipulated period of six months from the service of the purchase notice. The Post and Telegraph Department had submitted a proposal on 13/3/1991 to the Collector, Pune for acquisition of the land. It has been further stated that the subject land is reserved in the sanctioned development plan for Lonavala Municipal Council under Section 22(k) of the MRTP Act and the reservation is for Post Office and staff quarters. It has been further stated that acquisition proceedings were already initiated within the stipulated period and, 5 wp-4787-97 therefore, the request of the petitioner to release the land from reservation could not be accepted. The affidavit filed by the SLAO No. 14, Pune, admits that after receiving the proposal for acquisition of the land, the Collector, Pune sent the acquisition proposal to the Sub Divisional Officer, Haveli on 9/7/1991 for initiating the land acquisition proceedings and on 18/11/1991 joint measurement of the land was carried out. However, on 11/5/1999 the land acquisition proposal was transferred to SLAO No.14, Pune for taking further steps to complete the acquisition proceedings. On 21/1/2006 the SLAO No.14 addressed a letter to the Post and Telegraph Department calling upon to deposit approximately 2/3rd of the total acquisition amount with the office of the SLAO and that amount came to Rs.30,50,000/-. A copy of the said letter is annexed to the affidavit of the SLAO. Admittedly, the Superintendent of Post Offices, Pune Rural did not take steps to deposit the amount of Rs.30,50,000/- with the SLAO and the land acquisition proposal remained dormant all these years. 4. The Superintendent of Post Offices, Pune, MFL Division, for the first time filed an affidavit-in-reply sometimes in June 2006 and stated 6 wp-4787-97 that the Postal Department had submitted the proposal for acquisition of the land to the Collector, Pune on 8/3/1991. The affidavit further states that after submitting land acquisition proposal, reminders were sent to the Collector from time to time and the last such reminder was dated 13/1/2004. At the same time, reliance has been placed on the Circular dated 7/4/1994 issued by the Government of Maharashtra, which purportedly allows the land owner to develop the land and transfer it to the State Government. It is contended that the said Circular is applicable in the instant case and the petitioner should take the benefit of the same rather than asking for release of the land. An additional affidavit has been filed by the Superintendent of Post Offices on 5/4/2010 and it has been stated that the Ministry of Communications and Information Technology, Department of Posts, New Delhi, vide its letter dated 1/4/2010 has conveyed to the affiant an approval to the proposal to develop the land by the land owner as per the Circular dated 7/4/1994 issued by the State Government. It has been stated that on construction of the building on the suit land, 40% of the constructed area be transferred to the Department of Posts and the balance 60% could be retained by the land owner for its disposal as per its choice. This additional affidavit does not provide any information regarding the further progress in acquisition proceedings or the 7 wp-4787-97 Department’s willingness to deposit 2/3rd of the acquisition cost as was suggested by the Collector, Pune/SLAO. The learned counsel for the respondent nos.5 and 6 submitted that the only way for the petitioner is to take the benefit of the Circular dated 7/4/1994 and develop the suit plot so as to hand over 40% constructed area to respondent no.6. 5. The petitioner has amended the petition memo so as to challenge the legality and validity of the Circular dated 7/4/1994. We have perused the said Circular which has been annexed to the affidavit filed by the respondent no.6. We need not enter into the aspect of its validity as we are satisfied that it is left to the choice of the land owner to opt either for acquisition of the reserved land or for its development at his own cost so as to hand over 40% constructed area to the body in whose favour the reservation has been made and retain 60% of the constructed area. In addition, it is not very clear whether the suit land is reserved for the construction of a post office or it is reserved for the Post Office as well as the residential quarters. If the suit land is reserved for the residential quarters of the postal employees, we have our own doubts whether the Circular dated 7/4/1994 would apply. It is not in dispute that the suit land is owned by the petitioner and till the year 2006, the SLAO No. 14 has 8 wp-4787-97 been following with the Superintendent of Postal Department to deposit 2/3rd of the acquisition cost. The State Government has not placed reliance on the Circular dated 7/4/1994 and the learned counsel for the petitioner has stated before us that the petitioner has no resources to develop the land on its own so as to hand over 40% of the constructed area to the Postal Department. Article 300A of the Constitution of India states that no person shall be deprived of his property save by authority of law and the Circular dated 7/4/1994 cannot aggravate or overrule all the provisions of the Land Acquisition Act, 1894 or Section 126 of the M.R.T.P. Act, 1966. If the respondent no.6 is keen to utilize the land reserved for its purpose in the development plan of the Lonavala Municipal Council, it has to deposit the compensation amount payable to the land owner as directed by the SLAO by his letter referred to hereinabove and its reliance on the Circular dated 7/4/1994 to direct the petitioner to develop the suit land on its own cannot support its case. In our opinion, the land owner has the choice and if the land owner opts for the choice of acquisition of the land by the State Government for or at the behest of the postal department, the alternative cannot be forced upon the land owner. 6. At the same time, it would be necessary for this court to grant 9 wp-4787-97 some more reasonable time to respondent nos. 6 and 7 to deposit the compensation amount with the SLAO and it will not be permissible to give a declaration, as has been prayed for in this petition. If respondent nos.6 and 7 do not deposit the compensation amount, as per the demand made by the SLAO, within the stipulated period, it will be open for the petitioner to take further appropriate steps under Section 127 of the M.R.T.P. Act, 1966. We make it clear that respondent nos.6 and 7 cannot expect the suit land to be made available to them for construction of post office and residential quarters without paying the compensation amount, as would be calculated under the Land Acquisition Act, 1894. 7. In the premises, we allow this petition partly and direct respondent nos.6 and 7 to deposit 2/3rd of the land cost with the SLAO No. 14 within a period of six months from today and the said SLAO is directed to issue a fresh letter to respondent no.6 quantifying afresh the deposit amount towards 2/3rd cost of the land within three weeks from today. If the respondent nos.6 and 7 fail to deposit the requisite amount with the SLAO No.14 within six months from today, the petitioner is at liberty to take further appropriate steps, as may be permissible under the law, for the release of the land. 10 wp-4787-97 8. Rule is made absolute accordingly with no order as to costs. (A. A. SAYED,J.) (B. H. MARLAPALLE, J.)