(1) wp7269-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 7269 OF 2009 1. Vijayprakash Ramgopal Porwal 2. Shriprakash Ramgopal Porwal 3. Jayprakash Ramgopal Porwal 4. Omprakash Ramgopal Porwal All r/o Main Road, Manwat, Taluka Manwat, Dist. Parbhani PETITIONERS VERSUS 1. The State of Maharashtra, through Secretary, Urban Development Department, Mantralaya, Mumbai. 2. The Director of Town Planning, Central Building, Maharashtra State, Pune. 3. The Revenue Collector, Parbhani. 4. The Chief Executive Officer, Municipal Council, Manwat, Tq. Manwat, Dist. Parbhani. RESPONDENTS .... Mr. Pradeep Deshmukh, advocate holding for Mr. S.P. Shah, advocate for the petitioners. Mr. V.B. Ghadge, A.G.P. for the respondent/State. Mr. M.P. Tripathi, advocate for the respondent No. 4. .... CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATED : 5th JULY, 2011 (2) wp7269-09 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Rule. Rule made returnable forthwith with consent of the parties. 2. By the present writ petition, the petitioners are seeking deletion of the reservation of Site No. 63 for playground of Survey No. 249A of Manwat, Taluka Manwat, District Parbhani from the final Development Plan, prepared under the provisions of the Maharashtra Regional and Town Planning Act, 1966 (for short, “the MRTP Act”). 3. By certain modification, the part of the land was excluded from reservation on 29th June, 2001. Thereafter, by order dated 3rd October, 2002, the northern portion of the Site was also deleted and remaining part was kept reserved for playground to the extent of 1 hectare 50 Ares. In the circumstances, the petitioners issued notice under section 49 of the MRTP Act, requiring the appropriate authority to purchase the interest of the petitioners in the land in accordance with the provisions of the MRTP Act. The respondent No. 2 – the Director of (3) wp7269-09 Town Planning has confirmed the purchase notice on 30th June, 2007. The Development Authority i.e. the respondent No. 4 – Municipal Council, Manwat had, therefore, forwarded a proposal to acquire the land, on 18th April, 2007 to the concerned Land Acquisition Officer. The said proposal was, however, returned on 2nd November, 2007 by the Land Acquisition Officer for the reason that as per the Rules, before starting any acquisition proceeding, 2/3rd of the estimated compensation amount is required to be deposited, which came to Rs. 70,64,960/-. Since the amount was not deposited within the stipulated period, the Land Acquisition Officer again issued a reminder and granted time to the Municipal Council till 13th August, 2008 to deposit the amount. The amount, however, was not deposited and ultimately, the acquisition proposal was returned by the Land Acquisition Officer to the Municipal Council and since then, the matter is kept in cold storage. In the circumstances, the petitioners submit that in view of the provisions of section 49 of the MRTP Act, the reservation is deemed to have lapsed. (4) wp7269-09 4. The respondent Nos. 1 and 2 i.e. the State of Maharashtra and the Director of Town Planning have filed their affidavit-in-reply while the affidavit- in-reply on behalf of the respondent No. 4 – Municipal Council was filed by the Chief Officer. 5. It is the contention of the Municipal Council that since the Municipal Council i.e. the appropriate authority has made an application to acquire the land within a period of one year from the date of confirmation of the notice, the reservation has not lapsed. The respondent Nos. 1 and 2 have submitted that the purchase notice was confirmed within the stipulated period and, therefore, the petition deserves to be dismissed. 6. Section 49 of the MRTP Act reads as under : “49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases (1) Where - (a) any land is designated by a plan as subject to compulsory acquisition, or (b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or (5) wp7269-09 statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or ( c ) any land is indicated in any plan as land on which a highway is proposed to be constructed or included, or (d) any land for the development of which permission is refused or is granted subject to conditions, and any owner of land referred to in clauses (a), (b) (c ) or (d) claims - (i) that the land has become incapable of reasonably beneficial use in its existing state, or (ii) (where planning permission is given subject to conditions) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or] (e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated, the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as “the purchase notice”) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act. (2)The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that Authority and of the State Government, if any, in respect of which the notice is given. (6) wp7269-09 (3) On receipt of a purchase notice, the State Government shall forthwith call from the Planning Authority and the Appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition. (4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub-section (1) are fulfilled, and that the order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard. (5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period. (6) [* * * * *] (7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the (7) wp7269-09 reservation, designation, or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan.” [Emphasis supplied] 7. There is no dispute that an application for acquisition was submitted to the Land Acquisition Officer by the Municipal Council with the substantive defect of not depositing the amount required under the Rules to be deposited at the time of making proposal for acquisition of the land. The reminder from the Land Acquisition Officer to the Municipal Council went unheeded and, therefore, there was no "application to acquire the land" in the eye of law made by the Municipal Council. Merely dashing a letter to the Land Acquisition Officer without taking effective steps of depositing the amount would not amount to an application as envisaged under section 49 (7) and, therefore, in absence of any valid application within the stipulated period, the effect would be of lapsing of the reservation. 8. In the circumstances, the petition will have to be allowed. The Rule is made absolute in terms of (8) wp7269-09 prayer clause (A) and it is declared that the reservation of Site No. 63 of Survey No. 249A of Manwat, Taluka Manwat, District Parbhani has lapsed from the Final Development Plan. No order as to costs. [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] NPJ/wp7269-09