1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2292 OF 2007 Arunkumar Shrikishan Agrawal, Age 43 years, Occ. Business, R/o Subhash Road, Nava Mondha, Jalna. ..Petitioner Versus 1. The State of Maharashtra Through Secretary, Urban Development Department, Mantralaya, Mumbai. 2. Director of Town Planning, Maharashtra State, Pune. 3.Chief Officer, Municipal Council, Jalna. ..Respondents ... Advocates appearing for : Petitioner : Shri A.B.Kale, Respondents 1 & 2 : Smt. V.A.Shinde, AGP and Respondent 3 : Shri H.K.Mundhe. ... CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE, JJ. Dated : November 10, 2009 PER COURT :- 1. This Court by the order dt.12.8.2009 put the parties on notice that this petition would be finally disposed on 20.8.2009. Registry was directed to list this petition on board at Serial No.1 on the adjourned day. 2 2. Heard learned counsel for the respective parties. 3. Shri Kale, learned Advocate for the petitioner took us through the petition, affidavit of respondent No.1 State and affidavit on behalf of respondent No.3 Municipal Council, Jalna and the document (Page 47) i.e. copy of the Development Plan of Jalna. This seems to be a part of the Development Plan showing Employees State Insurance Dispensary, Quarters and surrounding area, in relation to the petition property. 4. The principal prayer made in the Writ Petition, pointed to us by Advocate Shri Kale, needs to be reproduced herein below:- " (C). Declare that the land bearing Survey No.49/9 situated at village Jalna is de-reserved from the said reservation as mentioned in the notice dated 25.9.06 and for that purpose issue necessary orders." Shri Kale, learned Advocate for the petitioner submits that after seeking declaration as per prayer clause (C), as quoted above, the petitioner consequently seeks quashment and setting aside of the letter dt. 28.2.2007, which is part of the compilation. In other words, according to the petitioner, Prayer clause (C) is the main relief and prayer (D) is the consequential relief. 3 5. It is not in dispute that land S.No.49/9 is owned by the petitioner. Copy of 7/12 extract (Exhibit "A") shows the name of the petitioner in the occupancy column. Area of the land is shown as 1 Hectare and 60 Ares. Exhibit "B" is the order passed by the Collector, Jalna under section 44 of the Maharashtra Land Revenue Code, 1966 ("Code of 1966"). It has been mentioned in this order that the land S.Nos. 49/8 and 49/9 are owned by the petitioner. Out of these two lands, area to the tune of 3 Hectares and 20 Ares is owned by the petitioner and Smt. Neeta, residents of Jalna. Out of these two lands, area to the tune of 32,000 sq. meters was sought to be converted into non agricultural use and for that purposes, an application seeking permission was filed to the Collector, Jalna. Out of this 32,000 sq. meters, some area is being recommended by the Town Planner Jalna for residential / non agricultural use. Said recommendation was considered by the Collector passing this order under section 44 of the Code of 1966, dated 10.12.2004. This order (Exhibit "B") makes a reference to various conditions, which are embodied in this order itself. While parting with this order, it is to be noted that this non agricultural use permission granted by the Collector, under Section 44 of the Code of 1966 pertains to the part of the area recommended or approved by the Town Planner, Jalna for residential use. Obviously, the figure of this area could not be mentioned by the Collector. That depends upon the approval, if granted by the Town Planner / Local Self Government - Jalna Municipal Council, constituted under the 4 provisions of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the Act of 1965"). 6. Shri Kale, Learned Advocate for the petitioner points out Exhibit "C" - purchase notice dt.25.9.2006. This purchase notice makes a reference to the area to the tune of 1 Hectare and 60 Ares out of S.No.49/9 situated at Jalna. In this notice, it has been contended that the Jalna Municipal Council has prepared and published a draft development plan of Jalna (Revised + Additional Area) on 15.6.1985 and the same plan is put into effect from 25.8.1989. A categorical statement has been made in this notice that some land out of S.No. 49/9 is reserved for public and semi public purposes. Thus, according to the petitioner, this area to the tune of 1 Hectare and 60 Ares out of S.No.49/9 is reserved for the public and semi public purposes. Paragraph No.2 of the notice contains that it is mandatory on the part of the Municipal Council concerned to acquire the land of the petitioner out of S.No.49/9 under section 126 of the Maharashtra Regional and Town Planning Act, 1966 ("Act of 1966") within ten years from coming into force the Development Plan dt. 25.8.1989. According to the petitioner, steps should have been taken by the respondent No.3 on/or before 25.8.1999. In paragraph No.3, it has been contended that despite purchase notice under section 127, steps in view of section 126 read with section 6 of the Act of 1966 have not been taken. The Municipal Council, therefore, is called upon to acquire the land of the petitioner 5 as per section 126 within six months from the date of receipt of the notice or as a last chance to release the land bearing S.No.49/9 in favour of the petitioner. Exhibit "D" to the petition is the communication addressed on behalf of the Council to the petitioner. By this communication, receipt of notice from the petitioner under section 127 is acknowledged. Some documents have been called for. The petitioner has been informed that unless the documents, which are called for are submitted, purchase notice of the petitioner can not be materialized in respect of the area to be considered by the Municipal Council. The petitioner, in view of the communication of the Municipal Council concerned, dt.11.10.2006, furnished the required documents. Exhibit "E" is the communication, informing the learned counsel that the documents have been annexed or furnished to the Council. 7. The Municipal Council, Jalna addressed the communication to the petitioner dt.29.1.2007 (Exhibit "F"). By this communication, the petitioner has been informed that the Council has received the purchase notice pertaining to the area of the land to the tune of 7950 sq. meters out of S.Nos. 49/8 and 49/9. This was reservation No.30(A) for ESI Dispensary and Staff Quarters. This reservation for the public purpose has been deleted in view of the Government Notification dt.28.6.2002. Remaining area of 7950 sq. meters, comes in the public and semi-public zone and therefore, sections 126 and 127 of the Act of 1966 have no application and 6 purchase notice cannot be served to the Municipal Council. This letter categorically informs that the notices of the petitioner dt.25.9.2006 and 8.11.2006 cannot be complied with and therefore, application made by the petitioner has been disposed of. There is one more communication produced on record at Exhibit "G". This communication is addressed to the petitioner by the Jalna Municipal Council on 28.2.2007. By this communication, the petitioner has been informed that his request for development of land S.No.49/9 for residential purpose / use cannot be granted. The reason assigned by the Council is that the land S.No. 49/9 is shown in the public / semi-public zone of sanctioned Development Plan of Jalna town. It is this letter, quashment of which is sought by way of consequential relief vide prayer clause (D) of the petition. 8. On behalf of the respondents 1 and 2, affidavit in reply has been filed on record. This has been sworn in by one Shri Avinash Nimje, Deputy Director, Town Planning, Aurangabad. It reveals from paragraph No.3 of this affidavit that the Development Plan of Jalna town was revised and additional area was sanctioned by the Government vide notification dated 4.4.1989. This Development Plan has been put into effect on 25.5.1989. Further, it has been stated in this affidavit (Paragraph No.3) that lands S.Nos. 48/8 and 49/9 are partly affected by reservation No.30/A which is partly under the public and semi-public zone. Affiant further states that this reservation 30/A (ESI Dispensary and Staff Quarters) is shifted from S.No.49/8 and 49/9 7 and so released. Reference to the Government Notification dt. 28.6.2002 is also made and copy of the said notification is at Annexure R/2. A categorical statement is made by the affiant, ".... However, the land under petition continue to be in public and semi-public zone as per the said Development Plan....." The part plan of Development Plan is annexed and marked as Exhibit R/3 with the said reply. Thereafter, reference to purchase notice dt.25.9.2006 addressed on behalf of the petitioner is made. In this context, affiant states that said purchase notice is not applicable in this case. It has been further stated in this affidavit that no appropriate authority for development of this land is declared in the Development Plan report. According to him, the land of the petitioner is simply included in a zone for public and semi public use. The users like Hospital, Maternity Home, Schools, Libraries, Administrative Buildings and similar public and semi public buildings etc. are admissible to the land owners for lands under this zone. Further, it has been stated that the land of the petitioner does not come under time bound Development Plan. The stand taken by the Municipal Council that the notice under section 127 is not applicable to the facts of the petitioner's land, has been supported at the end of Paragraph No.3. In paragraph No.5, it has been stated that the alternate remedy to file an appeal under section 47 of the Act of 1966 before the competent authority is available to the petitioner and without resorting to said alternate remedy, petition has been filed by the petitioner in this Court. According to affiant, it is, therefore, not 8 maintainable. 9. On behalf of respondent No.3 Municipal Council, affidavit in reply has been filed on record. It has been sworn in by Shri Nandkumar Bhope, the then Town Planner of the Municipal Council. Paragraph Nos.4 and 5 of this reply are material. In paragraph No.4, it has been stated that the land to the tune of 7950 sq. meters is to be used for the public / semi public purposes. The remaining area of the piece of land S.No.7950 sq. meters which is shown for public and semi public purposes, is not shown for any reservation for the Municipal Council. According to the learned counsel, therefore, Sections 126 and 127 have no application to the facts in the present case. In this paragraph No.4, it has been further stated that the petitioner applied on 15.2.2007 for permission regarding residential use of the said site, which is to be used for public purpose and not for the residential purpose and therefore, rejected the application and permission has been refused for residential purposes. In paragraph No.5 of the reply, it has been re-iterated that the site in question is to be used for the public purpose comes under the said zone and therefore, should be used for the said purpose by the petitioner. According to the affiant, the petitioner, if wishes to have a change in the zoning, has to apply under section 37 for the change of the zone. With this statement, the petition is requested to be dismissed. 9 10. Learned counsel appearing on behalf of the petitioner submits that the petitioner is owner of the property and entitled to use the property according to his will and wish. According to the petitioner, neither the State Government nor the Planning Authority i.e. Municipal Council can force the petitioner to use his property in a particular manner or for a particular use. He also made a submission that this land is reserved and therefore notice has been served to the Council under section 126 of the Act of 1966. He fortifies the stand of the petitioner in issuing the purchase notice. According to him, the case is governed by Section 126 of the Act of 1966. 11. We have referred to the prayers made by the petitioner, pleadings of the parties and/or contentions raised by the parties in their affidavits. We have also referred the documents, which are on record. 12. The definitions of few words / terms under section 2 of the Act of 1966 needs to be considered. Definitions of terms, "amenity" , "development", "local authority", "planning authority" and "regional plan" are important, which are reproduced herein below :- "(2) "amenity " means roads, streets, open spaces, parks, recreational grounds, play grounds, sports complex, parade grounds, gardens, markets, parking lots, primary and secondary schools and colleges and polytechnics, clinics, dispensaries and hospitals, water supply, electricity supply, street lighting, sewerage, drainage, public works and includes other utilities, services and conveniences]; 10 (7) "development" with its grammatical variations means the carrying out of holdings, engineering, mining or other operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land or any material of structural change in any heritage; building or its precinct and includes demolition of any existing building, structure or erection or part of such building, structure of erection; and reclamation, redevelopment and lay-out and sub-division of any land; and "to develop" shall be construed accordingly; (15) "local authority " means (a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act or the Nagpur Municipal Corporation constituted under the City of Nagpur Municipal Corporation Act, 1948, or any Municipal corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949, (b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, (c) (i) a Zilla Parishad constituted under the Maharashtra Zilla Parishad and Panchayat Samities Act, 1961, (ii) the Authority constituted under the Maharashtra Housing and Area Mah. Development Act, 1976], (iii) the Nagpur Improvement Trust constituted under the Nagpur Improvement Trust Act, 1936,which is permitted by the State Government for any area under its jurisdiction to exercise the powers of a planning Authority under this Act, (19) "Planning Authority " means a local authority; and includes, (a) a Special Planning Authority constituted or appointed or deemed to have been appointed under section 40; (b) in respect of the slum rehabilitation area declared under section 3C of the Maharashtra Slum 11 Areas (Improvement, Clearance and Redevelopment) Act, 1971, the Slum Rehabilitation Authority appointed under section 3A of the said Act; (25) "Regional plan" means a Plan for the development or re-development of a Region which is approved by the State Government and has come into operation under this Act; 13. Chapter II of the Act of 1966 pertains to the provisions relating to Regional Plans. We are concerned with Chapter III - "Development Plans". Sub-section (1) of Section 21 contemplates "Development Plan". A duty is shouldered upon the Planning Authority under said sub-section to carry out the survey and prepare an existing land use map within the period of three years after the commencement of the Act of 1966. It is further provided that where there is such a Development Plan publication of the notice in the Official Gazette in the manner provided under section 21 is contemplated. This plan is obviously Development Plan prepared by the Planning Authority and to be submitted to the State Government for sanction. The Planning Authorities are further contemplated to submit a quarterly report to the State Government about the progress made in carrying out the survey and prepare the plan. If a duty is not discharged by the Planning Authority under sub-section (4) of section 21, it provides that the State Government may appoint an officer. Such officer, if appointed by the State Government, shall exercise all powers and perform all functions of the Planning Authority. In other words, in case on failure on the part of the Planning Authority to 12 discharge its duties as contemplated under section 21 of the Act of 1966, the State is empowered to appoint an officer and see that the functions to be performed by the Planning Authority are being preformed by such an officer. 14. Section 22 of the Act of 1966 is more important. This section provides for the contents of the Development Plan prepared by the Planning Authority. Planning Authority while preparing the Development Plan is supposed to provide minute details as contemplated under section 22(a) to (i) of the Act of 1966. A look to this section 22, in its entirety, shows that such details are pertaining to allocation of the area of the land under development, for the purposes such as residential, industrial, commercial, agriculture and recreational. Those areas allocated for these purposes are required to be mentioned in the Development Plan by the Planning Authority. User of the land is one aspect of the development. Designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions etc. as contemplated under section 22(b) is further important from the view point of the necessity felt for the public at large. In the case on hand, we are concerned with sub-clause (f) and (g) of section 22. Section 22(f) speaks about the reservation of land for community facilities and services; and sub-clause (g) refers to the proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale. Thus, section 22 is 13 important from the view point of furnishing details i.e. contents of the Development Plan. 15. In the case on hand, parties are at issue on the point of application of section 126 of the Act of 1966. Chapter VII of the Act of 1966 provides for the land acquisition. Section 125 of the Act provides acquisition of the land required, reserved or designated in a Regional plan, Development plan or town planing scheme for a public purpose or purposes including plans for any area comprehensive development. In the given case, petitioner's land may be required, may have been reserved or designated under the regional plan or Development Plan prepared by the competent authority in view of the provisions of the Act of 1966. Obviously, such a piece of land or area of the land is neither owned by the planning authority nor by the State Government. In this fact situation, remedy made available to the authority concerned is to acquire the the property from the owner / citizen in the better development of the area and/or town concerned. This acquisition is contemplated in accordance with the provisions of the Land Acquisition Act, 1894, with an objective that the person cannot be deprived of his property without compensation, especially when land required, reserved or designated for the purposes of Regional or Development Plan. (Emphasis supplied). Section 126 of the Act of 1966 is emphasized by the learned counsel for the petitioner. According to him, this section applies to the facts of the present case. This section contemplates 14 that any land, if required or reserved for any of the public purposes, specified in the plan or scheme by the planning authority, such land can be acquired by following the modalities provided under sub-clauses (a) to (e) of sub-section (1) of section 126 of the Act of 1966. An important intent of section 126(1) is requirement or reservation of the land, after publication of the draft regional plan or Development Plan and for public purposes. The basic requirement of sub-section (1) thus is requirement or reservation of the land for any of the public purposes. (Emphasis supplied). On behalf of the petitioner, nothing is brought on record to show that respondents, at the relevant time, were in requirement of the land from these two survey numbers or have reserved the land from these two numbers for any public purpose, specified either in the Draft Development Plan or Development Plan. Point of time is also material i.e. the publication of the Draft Development Plan, Development Plan or any other plan for town planning scheme concerned. Unless the facts showing the compliance of section 126(1) of the Act of 1966 have been established, there is no question of acquisition of the land, either for the Planning Authority or for the State Government. (Emphasis supplied). On a query on this point, learned counsel for the petitioner relies upon the affidavit filed on behalf of the respondent Municipal Council. We have considered the submissions of the learned counsel for the petitioner and carefully gone through paragraphs 4 and 5 of the said affidavit. In this affidavit, it is no where stated by the 15 affiant that the area of the land in question was required by the Municipal Council or was reserved and accordingly shown in Development Plan for the public purposes. There is one more affidavit on behalf of respondents 1 and 2 which we have referred to in the foregoing paragraphs. In this affidavit, learned counsel for the petitioner takes up to paragraph No. 3. There a statement is made " However, the land under petition continue to be in public and semi public zone as per the said Development Plan...." It is not possible for us to accept the submission of learned counsel for the petitioner. Plain reading of paragraph No.3 of the affidavit shows that the land under the petition continued to be in public and semi public zone and not reserved for public or semi public purposes. At the costs of repetition, we may say that there is a basic distinction in reservation of the land for the public and semi public purposes and marking the land or area of the land in a public and semi public purpose. Thus, in our view, paragraph No.3 cannot be read to hold that the land in question was reserved for public and semi public zone. All that has been mentioned in Annexure R3 is that the part of the Development Plan is the allocation of the area for various users of the specified area. This cannot be read as a reservation for the public purposes.(Emphasis supplied). 16. Since, we have recorded a finding that there is no reservation of the land in this petition, either for the purposes of Municipal Council or the State Government, there is no question of 16 application of Section 126 of the Act of 1966. If the land is reserved and accordingly shown in the Development Plan, obviously development thereof by the owner or private person without leave of the Planning Authority is not possible. The Planning Authority is contemplated to act in accordance with the provisions of the Act of 1966. If Planning Authority is not following the statutory mandate of the Act of 1966, remedy is made available to the owner of the property to resort to section 127 of the Act of 1966 by serving the purchase notice. Reservation cannot be for indefinite period of time. In other words, Planning Authority is not left at its will and wish to reserve the property for the public purpose. Not to follow the mandate of section 126 deprives the owner of the property from enjoyment of the property. Section 127 of the Act of 1966, therefore, makes a provision for lapsing of the reservation so that the owner may seek development of the property and enjoy the property accordingly. In the case on hand, in our view, section 126 has absolutely no application, since there is no material on record to show that the land was reserved in a Development Plan. 17. In the affidavit filed on behalf of the State, reference is made to the alternate remedy under section 47 of the Act of 1966 i.e. providing an appeal in case of refusal of permission for development. On behalf of the respondent, it is also stated in the affidavit that the change of zone is