1 wp6445.08 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 6445 OF 2008 Subhash s/o Shankar Patil, age 55 years, occupation : agriculturist, r/of village Sulwade, Taluka Shahada, District : Nandurbar. Petitioner versus 01. The State of Maharashtra, (Urban Development Division), Secretary, Mantralaya, Mumbai-32. 02. The Collector, Nandurbar, at Nandurbar. 03. The Town Planning Officer, Nandurbar, Dist. Nandurbar. 04. The Chief Executive Officer, Municipal Council, Shahada, Taluka Shahada, Dist.Nandurbar. Respondents WITH WRIT PETITION NO. 6505 OF 2008 Deelip s/o Shankar Patil, age 43 years, occup. agriculturist, r/of village Lonkheda, Tq.Shahada, District : Nandurbar. versus 01. The State of Maharashtra, (Urban Development Division), Secretary, Mantralaya, Mumbai-32. 02. The Collector, Nandurbar, at Nandurbar. 2 wp6445.08 03. The Town Planning Officer, Nandurbar, Dist. Nandurbar. 04. The Chief Executive Officer, Municipal Council, Shahada, Taluka Shahada, Dist.Nandurbar. Respondents WITH WRIT PETITION NO. 6539 OF 2008 Sharad s/o Dashrath Patil, age 47 years, occup. Agriculturist, r/of village Lonkheda, Tq. Shahada, District Nandurbar. Petitioner versus 01. The State of Maharashtra, (Urban Development Division), Secretary, Mantralaya, Mumbai-32. 02. The Collector, Nandurbar, at Nandurbar. 03. The Town Planning Officer, Nandurbar, Dist. Nandurbar. 04. The Chief Executive Officer, Municipal Council, Shahada, Taluka Shahada, Dist.Nandurbar. Respondents WITH WRIT PETITION NO. 6540 OF 2008 Keshav s/o Narsai Patil, age 70 years, occup.agriculturist, r/of village Lonkheda, Taluka Shahada, District Nandurbar. Petitioner versus 3 wp6445.08 01. The State of Maharashtra, (Urban Development Division), Secretary, Mantralaya, Mumbai-32. 02. The Collector, Nandurbar, at Nandurbar. 03. The Town Planning Officer, Nandurbar, Dist. Nandurbar. 04. The Chief Executive Officer, Municipal Council, Shahada, Taluka Shahada, Dist.Nandurbar. Respondents WITH WRIT PETITION NO.7260 OF 2008 Hiralal s/o Shankar Patil, age 70 years, occup. agriculturist, r/of village Sulwade, Taluka: Shahada, District Nandurbar (deceased), through his legal representatives:- 1-A. Yuraj s/o Hiralal Patil, age 41 years,occup.: agriculture. 1-B Yogesh s/o Hiralal Patil, age 37 years, occup. agril. 1-C. Narendra s/o Hiralal Patil, age 35 years, occup. agril. All r/of village Sulvade, Taluka Shahada, Dist. Nandurbar. 1-D. Urmila w/o Sham Patil, age 37 years, occup. household. R/o village Aurangpur, Taluka Shahada, District Nandurbar. Petitioners versus 01. The State of Maharashtra, (Urban Development Division), Secretary, Mantralaya, Mumbai-32. 4 wp6445.08 02. The Collector, Nandurbar, at Nandurbar. 03. The Town Planning Officer, Nandurbar, Dist. Nandurbar. 04. The Chief Executive Officer, Municipal Council, Shahada, Taluka Shahada, Dist.Nandurbar. Respondents ------- Shri S.K. Kulkarni, Advocate, holding for Shri C.R. Deshpande, Advocate for the Petitioner. Shri K.G. Patil, A.G.P. for Respondent Nos. 1 to 3. Shri J.R. Shah, Advocate, for Respondent No.4. Coram: Smt. Nishita Mhatre and M. T. Joshi, JJ. Date : 12th August, 2011. Oral Judgment (Per: Smt. Mhatre, J.) 01. Rule. By consent, rule made returnable forthwith. 02. These Petitions have been filed by by the petitioners claiming that the land owned by them bearing block No.247/1, situated at Shahada, should be de-reserved as no steps have been taken by the authorities concerned for acquisition of their land within ten years from the final development plan being published. The development plan of Shahada Municipal Council was published in the year 1986. The petitioners claim that since then they have not been able to enjoy their lands. Each of them own a part of the land bearing block No. 247/1. 03. A notice was issued by the Petitioners through their Advocate on 31.8.2007 to the Respondents, calling upon them to acquire the petitioners' 5 wp6445.08 land in accordance with the development plan within six months of the notice, failing which the petitioners would be entitled to use or dispose of their lands. Respondent No.3 i. e. the Town Planning Officer, Nandurbar, has replied to the notice, indicating that the appropriate authority regarding the acquisition of the lands is the Municipal Council, Shahada and, therefore, he was not responsible for not initiating the acquisition proceedings. 04. It appears that the Chief Officer, Shahada Municipal Council has submitted a proposal for the acquisition of the petitioners' land, on 30.8.2001 to the Collector, Nandurbar. However, thereafter no steps have been taken by the State to acquire the land. Hence, the present petitions. 05. Affidavits have been filed by Respondent Nos. 1, 2 and 3 through the in charge Assistant Director of Town Planning, Nandurbar, in which he has averred that since Shahada Municipal Council had sent a proposal for the acquisition of the petitioners' land, the Respondents had taken steps within six months as stipulated in Section 127 of the Maharashtra Regional Town Planning Act ("The MRTP Act" for short). He, therefore, urged that the reservation has not lapsed. 06. An affidavit has also been filed by Respondent No.4 i.e. the Chief Officer, Municipal Council, Shahada, in which he has stated that the land has been converted by the petitioners to non agricultural use without permission. He has further averred that a notice had been received from the Petitioners on 12.4.2001 under Section 127 of the MRTP Act. The purchase notice in respect of the acquisition proceedings was confirmed and the Municipal 6 wp6445.08 Council had initiated the proceedings by forwarding all the necessary documents to the Collector. The requisite fee for the measurement to be undertaken by the office of the Taluka Inspector of Land Records, Shahada, has also been deposited by the Municipal Council, on 18.9.2002. 07. Mr. Shah, the learned Advocate appearing for Respondent No.4, states that the Municipal Council was given grants under Urban Development-6 scheme. However that scheme has now been discontinued and no grants were forwarded to the Municipal Council for the purposes of acquisition of the petitioners' lands. He further submits that the Municipal Council has no funds for acquisition of the property. 08. In the present case, although the Municipal Council had informed the State that the land should be acquired, no action has been taken by the State for issuing any notification under the Land Acquisition Act. It is now well settled by the judgment in the case of M/s Girnar Traders vs. State of Maharashtra and ors, AIR 2007 SC 3180 that the publication of a declaration under Section 6 of the Land Acquisition Act, is a sine-qua-non for commencement of the acquisition proceedings. Any step which may or may not culminate in the acquisition cannot be considered to be a step towards acquisition as envisaged under Section 127 of the MRTP Act. 09. There is no dispute in the present case that besides issuing a letter, the State has not taken any action on the proposal forwarded by the Municipal Council, Shahada. By an order dated 8.9.2009, the learned Advocate appearing for Respondent No.4 was directed to ascertain whether the 7 wp6445.08 Municipal Council had the requisite funds for acquiring the lands of the petitioners. There is no affidavit on record by Respondent No. 4 indicating that such funds are available with the Municipal Council. In fact, the affidavit filed by the Chief Officer of the Municipal Council is silent on this issue and, therefore, the court had passed the order on 8.9.2009. No further affidavit has been filed by the Municipal Council. 10. In these circumstances, in our opinion, the reservation has lapsed, in view of deeming fiction contained in Section 127(2) of the Maharashtra Regional Town Planning Act. 11. Accordingly, the petitions are allowed. The State will take the steps to issue a notification that the land has been de-reserved from the final development plan for Municipal Council, Shahada. Rule made absolute, accordingly. sd/- sd/- (M.T. JOSHI, J.) (SMT. NISHITA MHATRE, J.) pnd/wp6445.08