WP No. 5909/08 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 5909 OF 2008 Smt. Vandana w/o. Santosh Tirmanwar, Age 36 years, Occu. Household, R/o. Kinwat,Taluka Kinwat, Dist. Nanded. ....Petitioner. Versus 1. The State of Maharashtra, Through its Secretary, Urban Development Department, Mantralaya, Mumbai. 2. The Collector, Nanded. 3. The Director of Town Planning, Maharashtra State, Pune. 4. The Municipal Council, Kinwat, District Nanded, through its Chief Officer. ....Respondents. Mr. S.R. Barlinge, Advocate for petitioner. Mr. S.K. Kadam, A.G.P. for respondent Nos. 1 to 3. Mr. S.M. Vibhute, Advocate for respondent No. 4. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. Reserved on : 26th September, 2011. Pronounced on : 10th October, 2011. WP No. 5909/08 2 JUDGMENT : [ PER T. V. NALAWADE, J. ] 1. Heard both the sides. 2. Rule. Rule made returnable forthwith and the matter is taken up for final hearing by the consent of parties. 3. The petition is filed under Article 226 of Constitution of India for issuing writ of mandamus to the effect that the land of the petitioner needs to be released from reservation No. 46 made under the Town Planning Act and also for the relief of setting aside the order made by the Director of Town Planning, by which permission is refused to petitioner to develop his land, shown to be reserved under town plan. 4. The petitioner is owner and possessor of land Survey No. 248/1, admeasuring 3100 Sq. Mtrs. and the land is situated at Tahsil Kinwat, District Nanded. In the development plan of Kinwat town of the year 1976 this land was reserved for a primary school. No steps were taken for acquisition of this land though the reservation was continued till the year 1999. The petitioner gave notice to the Municipal Council under section 127 of Maharashtra Regional and Town Planning Act, 1966 (M.R.T.P. Act) and asked to treat the land as dereserved as the reservation had lapsed due to WP No. 5909/08 3 operation of the law. In spite of this notice, the Municipal Council did not take steps for acquiring the land and it passed a resolution on 18.4.2000 to the effect that the Municipal Council was not interested to acquire the land as the acquisition was not feasible. 5. After lapsing of aforesaid reservation, application was moved for permission to develop the land by the owner, but the permission was refused. In the town plan of year 2002 the land was again shown to be reserved and this time, for play ground. Then the petitioner gave notice of purchase to the respondents, but in spite of that notice, the land was not acquired. On 20.6.2006 the Municipal Council again passed resolution to the effect that it was not feasible for it to acquire the land. 6. On 14.3.2008 the petitioner preferred appeal before Director of Town Planning against refusal to grant permission for development, but by the order dated 14.3.2008, the Director dismissed the appeal. Before the Director, it was contended for the Municipal Council that a proposal was moved to the Collector for acquisition. Collector has not taken steps like the steps under section 6 of the Land Acquisition Act etc. and on the contrary, the proposal has been returned by the Collector. In view of these circumstances, the aforesaid two reliefs are claimed by the WP No. 5909/08 4 petitioner. 7. The Municipal Council has filed affidavit in reply and it has contended that initially land was reserved for primary school and in the revised plan, the land is again shown to be reserved though for other purpose. It is contended that as the land is shown to be reserved, the permission cannot be granted for development to the owner. 8. Copies of relevant correspondence are produced by the petitioner. It is not disputed that the land was first reserved for the purpose of primary school in the year 1976 in the development plan of Kinwat town under the M.R.T.P. Act, but no steps were taken for acquisition of the land for more than 10 years. It is also not disputed that atleast on two occasions resolutions were made by the Municipal Council that it is not practicable for it to acquire the land. It appears that in the year 2005, for the first time, correspondence was made with Collector for acquisition of the land, but no effective steps as required under the provisions of Land Acquisition Act were taken. It is also not disputed that the petitioner has served notice as required under section 127 of M.R.T.P. Act. In view of these undisputed facts, the matter needs to be decided. WP No. 5909/08 5 9. Some reported cases were cited for both the sides. In Writ Petition No. 744/2004 decided on 13.8.2007 [ Suresh Laxminarayan Jaiswal Vs. The State of Maharashtra & Ors. ] this Court [CORAM : NARESH H. PATIL & R.M. BORDE, JJ.] has considered the points which are raised in this matter and also the decision given by this Court and Apex Court on this point. The facts of that case were also similar. This Court has considered the intent behind section 127 of M.R.T.P. Act. The relevant observations are in para Nos. 14 and 15 as under :- "14) The issue regarding computation of period of ten years and whether earlier period of reservation which was prior to the revised development plan coming into effect should be taken into consideration or not has now been finally settled by the Apex Court in the case of Bhavnagar University vs. Palitana Sugar Mills (P) Ltd, (2003) 2 SCC 111. The Apex Court has held as under : "The question however, is as to whether only because the provision of Section 20 has been referred to therein; would it mean that thereby the legislature contemplated that the time of ten years specified by the legislature for WP No. 5909/08 6 the purposes of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given their full effect, we must also give full effect to the words "so far as may be" applied to such revision. "The said words indicate the intention of the legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act in our opinion does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of Section 20, the designation of land shall lapse, the same only because a draft revised plan is made, would automatically give rise to revival WP No. 5909/08 7 thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land owner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor-General is accepted the same would completely render the provisions of section 20(2) otiose and redundant." In the case of Kishor Gopalrao Bapat Vs. State of Maharashtra, 2005 (4) Mh.L.J. 466 it was observed in paragraph 11. "11. The question, which falls for our consideration in the present petition is whether the Planning Authority exercising power under section 38 of the MRTP Act, which deals with revision of development plan, can take away the rights accrued to the owner of the land on account of lapsing of reservation in view of contingencies mentioned in Section 127 of the MRTP Act. Similar factual and legal situation arose Shri Baburao Dhondiba in the case of Solakhe (cited supra) and this Court after taking into consideration the law laid down by the Apex Court in Bhavnagar University vs. Palitana Sugar Mills (P) Ltd. and others, 2003 (1) SCC 111, in paragraph (17) observed thus: "The legal position as regards MRTP Act WP No. 5909/08 8 on the basis of aforesaid observations made by the Apex Court in Bhavnagar Universit emerges that by imposition of a statutory obligation under Section 38 on the part of the State or the appropriate authority to revise the development plan the rights of the owners accrued in terms of section 127 are not taken away. Section 38 of the MRTP Act, in our opinion, does not and cannot be read to mean that substantial right conferred upon the owner of the land or the person interested under Section 127 is taken away. In other words, section 38 does not envisage that despite the fact that in terms of Section 127, the reservation lapsed, only because of a draft revised development plan or final revised development plan is made would not automatically result in revival of reservation that had lapsed. If the reservation of the petitioner’s land for the purposes of garden had lapsed and as we found in fact has lapsed on 28-2-1992, because of draft revised plan made in the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation." 15) We, therefore, find that the notice under section 127 of the Act was perfectly served on the respondents. As the respondent - Municipal Council who could have initiated appropriate proceedings for WP No. 5909/08 9 acquisition of the land failed to take effective steps after receipt of the notice issued by the petitioner within the prescribed period of six months, the reservation of the subject land under the initial notification issued on 3-6-1976 would lapse and the land would be deemed to have been released from the reservation and the same would be available to the owner for its development. " 10. In the case reported as 2009 (2) ALL MR 832 [Coram : F.I. Rebello & B.R. Gavai, JJ between Shrikant Uttamrao Bhutekar & Ors. Vs. State of Maharashtra & Ors.] facts were different as the petitioner was not able to show that the notice as required under section 127 was served. In this case the landmark case of Apex Court viz. Girnar Traders Vs. State of Maharashtra [(2007) 7 SCC 555] is referred and considered. Similar observations are made by the Bombay High Court. 11. In the recent decision reported as (2011) 3 SCC 1 [Girnar Traders (3) Vs. State of Maharashtra) the Constitution Bench of Apex Court has discussed all the relevant provisions and also the application of section 11 (A) of the Land Acquisition Act to the provisions of M.R.T.P. Act. The Apex Court has discussed the difference between the reservation of land WP No. 5909/08 10 made under the provisions of M.R.T.P. Act and the provisions of Land Acquisition Act, made for acquisition of the land reserved. It is observed that only when the land is vested due to the acquisition proceeding in the Government/authority, there will be no revesting of the land in the owner under the provisions of Land Acquisition Act. On the other hand, it is observed that the provisions of section 11 (A) of the Land Acquisition Act do not have any application to such cases under the provisions of M.R.T.P. Act. Thus, even after considering this case of Constitution Bench of Apex Court, there is no case to respondents to defend. 12. We, therefore, hold and declare the reservation of the subject land in the development plan of the Municipal Council, Kinwat lapsed and the said land is released from reservation. As the land is available to petitioner/owner for its development, the order made by Director of Town Planning dated 14.3.2008 is quashed and set aside. 13. Rule is made absolute in aforesaid terms. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/