1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3171 OF 2009 1 Shri Pramod Moreshwar Patwardhan ] Age 58 yrs. R/o Miraj Tal.Miraj Dist.Sangli ] ] 2 Shri Pradeep Moreshwar Patwardhan ] Age 56 yrs. R/o­ do ] ] 3 Smt.Sadhana Govind Joshi ] Age 68 yrs. R/o. Pratap Colony, Miraj ] Tal.Miraj, Dist.Sangli ] ] 4 Sou.Aruna Vinayak Dandekar, ] Age 47 yrs. R/o. Opp.Shrishailya Pratap ] Talkies, Mahim Road, Palghar, Dist.Thane. ] ] 5 Sou Anjali Ajit Damle, ] Age 46 yrs. R/o. 125/5, Prabhatnagar, ] Opp.Film Institute, Law College Road, Pune ] Nos.3 to 5, Thr’ their Power of Attorney ] Holder, ] Shri Bhaskar Divakar Joshi, ] Age 45 yrs. Pratap Colony, Miraj, ] Tal Miraj, Dist. Sangli. ]... Petitioners. Versus 1 Sangli, Miraj & Kupwad ] Municipal Corporation ] Through Commissioner, Sangli ] ] 2 The Asstt. Director, ] Town Planning Department, Sangli ] ] 3 The State of Maharashtra ] Through Secretary, ] Urban Development Dpartment, ] Mantralaya, Mumbai­400 032. ]... Respondents. Mr. T S Ingale for the Petitioners. Mr. U R Mankapure for the Respondent No.1. Mr. A B Vagyani, AGP, for the Respondents/State. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 30th June 2010 2 ORAL JUDGMENT : [PER R M SAVANT, J] 1 Rule, made returnable forthwith and heard by the consent of the parties. 2 By the above Petition filed under Article 226 of the Constitution of India, the Petitioners seek a declaration that the reservation in respect of the Petitioners lands bearing Revisional Survey No.909/2/3, 909/2/9, 909/2/6, 909/2/1 and 909/2/11 admeasuring about 741 sq.mtrs, 419.7 sq.mtrs, 822.5 sq.mtr, 1921 sq.mtrs and 420 sq.mtrs respectively situated at Miraj, Dist. Sangli, being Reservation Site No.65 as “Housing for Dishoused and E.W.S. Housing” in sanctioned Development Plan of Miraj City propounded by the Respondent No.1 has lapsed in view of the provisions of Section 127 of the Maharashtra Regional Town Planning Act, 1966 [for the brevities sake “the MRTP Act”] and resultantly the lands stand released from the reservation or designation and become available to the Petitioners owners for the purpose of development in the case of adjacent land owners. 3 The factual matrix, in brief, can be stated thus :­ The Petitioners claim to be the owners of the lands mentioned herein above. The lands of the Petitioners were reserved in the sanctioned development plan which came into force on 26/4/1979 and bore Reservation Site No.65 for “Housing for Dishoused and E.W.S. Housing”. The said sanctioned development plan came into force on 30/6/1979. It appears that Miraj Municipal Council which was the planning authority at the relevant time did not take any step either to acquire the said lands or to develop the same for the purpose they were so designated in the sanctioned 3 development plan for considerable period of time. Since the said lands were neither acquired nor utilised for the purpose for which they were designated in the sanctioned development plan. The Petitioners’ father therefore gave a purchase notice dated 5/6/1993 under section 127 of the MRTP Act. Despite the said purchase notice, the planning authority did not take any steps within a period of six months as postulated in the said Section 127 of the MRTP Act. The Petitioners, it appears that, had made an application for development of the said lands and for erecting a compound wall. Since no acquisition proceedings were initiated in terms of Section 127 of the MRTP Act after the receipt of the purchase notice and on the footing that the reservation of the lands has lapsed, then the Miraj Municipal Council by its letter dated 16/3/1995 refused the said permission on the ground that the said lands are reserved under Reservation Site No.65 in the sanctioned development plan. This resulted in the Petitioners filing Regular Civil Suit No.204 of 1995 for perpetual injunction restraining the then Miraj Municipal Council from obstructing the Petitioners in erecting compound wall or carrying out construction on the said lands. It is pertinent to note at this stage that the Planning Authority of the then Miraj Municipal Council had filed a written statement. It is stated in Para 11 of the said Written Statement that the acquisition proceedings have been initiated in respect of the said lands. In the light of the said averment made in the Written Statement, the Petitioners thought it fit to withdraw the said suit by filing a pursis and the trial Court accordingly by an order dated 26/6/1996 permitted the Petitioners to withdraw the said suit. The Petitioners thereafter made inquiry with the office of Collector, Sangli as to whether any acquisition proceedings have been initiated. The Petitioners were informed that in respect of the lands designated in the final development plan, no such acquisition proceedings have been initiated by that office. Thereafter some 4 intervening events have taken place which in our view have no bearing on the adjudication of the above Petition. 4 Some time in the year 1998, the said Miraj Municipal Council was dissolved and jurisdiction of the said Municipal Council was encompassed in the larger urban area and the Respondent No.1­Municipal Council came to be established with merger of 3 Municipal Councils. The Respondent No.1­Corporation on 4/3/2005 decided to revise Development Plan for the entire Municipal Corporation Area and accordingly revised draft D.P. Came to be published under Section 26 of the MRTP Act on 4/3/2005 and in the revised draft D.P. The Petitioners’ lands once again shown under the same reservation of “Housing for Dishoused and E.W.S. Housing” bearing Reservation Site No.373. The Petitioners objected to the said being shown in the draft D.P. when the objections and suggestions were called for in respect of the said revised D.P.. The Petitioners objections were on the ground that through the earlier purchase notice was issued by the deceased father of the Petitioners, the Corporation had taken no steps to acquire lands in question and that in view of Section 127 of the MRTP Act, the said reservation is deemed to have lapsed. It appears that the said revised draft D.P. has already been submitted by the Respondent­Corporation to the State Government for sanctioned under Section 30 of the MRTP Act. The Petitioners have given a fresh purchase notice dated 31/10/2007 to the Respondent No.1­Corporation inter alia asking the Respondent No.1­ Corporation to acquire the lands within the period prescribed under Section 127 of the MRTP Act. It is undisputed that in spite of the said purchase notice, the Respondent­Corporation has neither passed any resolution inter alia taking a decision to acquire the lands of the Petitioners nor has it taken any steps to acquire the lands. 5 5 It appears that the Petitioners had applied to the Respondent No.1­ Corporation for permission to construct a compound wall and to raise construction on the said lands. The said application of the Petitioners came to be rejected by the Respondent No.1­Corporation by a letter dated 12/11/2008 on the ground that the said lands are under reservation in sanctioned D.P. and also kept under reservation in the revised draft D.P. submitted for sanction to the State Government. 6 So far as the issue raised in the above Petition is concerned, the same revolves around the interpretation of Section 127 of the MRTP Act. It would be apposite to reproduce the said provision :­ “127. Lapsing of reservations.­ If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional Plan, or final Development Plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan.” What is postulated by the said provision is that the Respondent No.1­ Corporation is required to take steps to acquire the lands within six months of the said purchase notice and failure to do so would be followed by legal consequences mentioned in the 6 said Section 127. 7 In the instant case, admittedly, there are no steps taken by the Respondent No.1­Corporation to acquire the lands of the Petitioners within the statutory period of six months, as mentioned in the said Section 127, from the date of the said purchase notice. The learned counsel for the Respondent No.1­Corporation fairly concedes to the said position that no steps have been taken by the Respondent No.1­Corporation to acquire the lands of the Petitioners. 8 In so far as the said aspect is concerned, reliance is placed by the learned counsel for the Petitioners on the judgment of the Apex Court in the matter of Girnar Traders v/s. State of Maharashtra, reported in (2007) 7 SCC 555. Para 32 of the said Judgment is relevant in the context of the facts of present case and the same is reproduced as under :­ 31. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which a regional plan or development plan comes into force, or the proceedings for acquisition of such land under the MRTP Act or under the LA Act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second part of Section 127 will come into operation, under which a period of six months is provided from the date on which the notice has been served by the owner within which the land has to be acquired or the steps as aforesaid are to be commenced for its acquisition. The six­month period shall commence from the date the owner or any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing his intent claiming de­reservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the 7 land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of the land within the period of six months from the date of service of the purchase notice. The word “aforesaid” in the collocation of the words “no steps as aforesaid are commenced for its acquisition” obviously refers to the steps contemplated by Section 126 of the MRTP Act. “32 If no proceedings as provided under Section 127 are taken and as a result thereof the reservation of the land lapses, the land shall be released from reservation, allotment or designation and shall be available to the owner for the purpose of development. The availability of the land to the owner for the development would only be for the purpose which is permissible in the case of adjacent land under the relevant plan. Thus, even after the release, the owner cannot utilize the land in whatever manner he deems fit and proper, but its utilisation has to be in conformity with the relevant plan for which the adjacent lands are permitted to be utilized.” “54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owner#s property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corporation of Greater Bombay Case (supra). If the acquisition is left for a time immemorial in the hands of the concerned authority by simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub­ section (4) of Section 126; and till then no declaration could be made under Section 127 as regards lapsing of reservation and contemplated declaration of land being released and available for the land owner for his utilization as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for de­reservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the land owner for de­ reservation. The steps towards commencement of the acquisition in such a situation would necessarily be the steps 8 for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation” (Emphasis supplied) 9 On behalf of the Respondent No.1­Corporation, the learned Counsel Mr.Mankapure contended that in view of the revised draft DP being published in the year 2007 and the objections and suggestions being invited for the same and the said plan awaiting consideration of the State Government, the reliefs sought for by the Petitioners in the instant Petition cannot be granted. 10 In our view, the fact that the revised draft D.P. has been published and is awaiting sanction of the State Government would have no effect on the rights of the Petitioners which have accrued to the Petitioners by virtue of the purchase notice being given by them and no steps having been taken by the Respondent No.1­ Corporation for acquiring the lands. The said issue is no more res­integra and is covered by the judgment of the Apex Court in the matter of Bhavnagar University v/s. Palitana Sugar Mill (P) Ltd. and ors. reported in (2003) 2 SCC 111. Para 39 of the said judgment is material and is reproduced herein under :­ “39 Sub­section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub­section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies 9 which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under sub­section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation.” (Emphasis supplied) 11 The learned counsel for the Respondent No.1­Corporation further contended that in view of the fact that the Petitioners did not carry the matter further after issuing the purchase notice in the year 1993 the Petitioners are now, therefore, estopped from issuing a fresh purchase notice and from contending that the reservation has lapsed. 12 In our view, this submission which is only stated to be rejected, merely because the Petitioners did not take steps for getting a declaration that the reservation qua lands in question has lapsed would not have the effect of denuding the right of the Petitioners of giving a fresh purchase notice which they had given in the year 2007. After the first purchase notice, the Petitioners had proceeded on the assumption that the lands stood released from reservation and, therefore, had applied for development permission which had been rejected by the Municipal Council, as a consequence of which the Petitioners had filed a civil suit, in which suit the then Municipal Council had filed a Written Statement that the lands would be acquired on the basis of which statement, the Petitioners had withdrawn the said suit. But the Petitioners thereafter on enquiries learnt that no acquisition proceedings were in fact initiated neither there was any proposal for acquisition. In our view, therefore, the Petitioners were left with no option but to give a fresh purchase notice, which fact cannot be held against the Petitioners. 10 13 It would also be pertinent to note that one of the co­owners of the part of the very same land bearing Survey No.909 Hissa No.212 admeasuring 1419 sq.mtrs. From Reservation Site No.65 in the said sanctioned Development Plan by name Shri Mrugendra Mallappa Majati had issued a similar purchase notice to the Respondent No.1­Corporation. Pursuant to the said purchase notice the General Body of the Respondent No.1­Corporation by its Resolution No.150 dated 21.11.2007 had decided not to acquire the said land under Reservation Site No.65 in sanctioned D.P. considering it inability to pay the compensation for acquisition. Therefore, in so far as the part of the land bearing Survey No.909 a decision has already been taken by the General Body of the Respondent No.1­Corporation not to acquire the same. 14 In view of the law laid down by the Apex Court in Girnar’s case and in view of the factual position in the present Petition which unmistakebly discloses that no steps have been taken by the Respondent No.1­Corporation to acquire the lands in question in terms of Section 127 of the said Act , the above Petition is required to be allowed and is accordingly allowed. Rule made absolute in terms of prayer clause b(i). Parties to bear their own costs. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]