-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.820 OF 2006 NO.820 OF 2006 NO.820 OF 2006 Shri Rajkumar B. Chutani and ors. ...Petitioners v/s Sangli, Miraj and Kupwad Municipal Corporation and anr. ...Respondents Mr R.G. Ketkar with Mr T.S. Ingawale i/b Ms Archana Kololgi for Petitioners. Mr N.V. Walawalkar i/b Mr G.H. Keluskar for Respondent No.1. Mr V.S. Masurkar, GP for Respondent No.2. CORAM : D.K. DESHMUKH AND J.P. DEVADHAR JJ. DATE : 12TH AUGUST 2008. -2- P.C. :- 1. By this petition, the petitioners challenge the communication dated 14th November 2005 from the respondent No.1 - Municipal Corporation rejecting the plan submitted by the petitioners for construction of building on land bearing survey No.901/1/1 to 5 + 902/1 to 3 + 6 to 8 + 11 to 15, admeasuring 19,225 sq.mtrs., situated at Miraj, District Sangli on the ground that the revised draft development plan which has been sanctioned pursuant to the resolution of the Municipal Corporation No.193 dated 28th February 2005 and which has been published in the Government Gazette dated 4th March 2005, the land is shown as reserved for Library. The brief facts which are necessary are that there is no dispute that the petitioners are owners of the lands referred to above. There is also no dispute that in the final development plan of Miraj town, which came into force on 30th June 1979, the land is shown as reserved for Library which is a public purpose. Though the plan came into effect on 30th June 1979, the land was not acquired by the Municipal Corporation and therefore, the petitioners issued a notice dated 28th January 2005 to the Municipal Corporation calling upon them to acquire the land within a period of six months from the date of -3- receipt of the notice and stating that if the land is not acquired, the reservation of the land will be deemed to have lapsed under the provisions of section 127 of the Maharashtra Regional and Town Planning Act 1966. After receipt of this notice, a resolution was passed by the General Body of the Corporation on 28th February 2005. In that resolution, it was stated that the Municipal Corporation is not able to purchase the land considering the price which has to be paid and therefore the Corporation resolved that the reservation should be deleted. It is pursuant to this resolution that the petitioners made an application for permission to construct a building on the land because now, as a result of the lapse of reservation they could use the land for residential purpose. Thereafter, in the draft revised development plan, the land is again reserved for Library. 2. The learned counsel appearing for petitioners, relying on the judgment of the Supreme Court in the case of Bhavnagar University v/s Palitana Sugar Mill (P) Ltd. and ors., reported in (2003) 2 SCC 111 and the judgment of a Division Bench of this Court in the case of Baburao D. Salokhe v/s Kolhapur Municipal Corporation, Kolhapur and anr., reported in (2003) 3 Mh.L.J. 820, submits that once as a result of service of notice under section 127 of the said Act, the reservation of land for public -4- purpose lapses, the land cannot again be reserved in a further revision of the development plan for the same public purpose. According to the learned counsel for petitioners therefore, the Municipal Corporation was not justified in rejecting their application for building permission. The only submission made on behalf of the Corporation is that in terms of section 46 of the said Act, Planning Authority is obliged to give due consideration to the provisions made in the draft development plan while considering the application for building permission. Now, from the rival submissions, it is clear that the question to be considered is whether the land reservation of which for public purpose in the final development plan lapses due to service of valid notice under section 127 of the said Act, can be again reserved for public purpose in further revision of development plan ?. This question, in our opinion, stands decided because of the judgment of the Supreme Court in the case of Bhavnagar University which has been considered in the judgment in Baburao Salokhe’s case referred above. The observations made by the Division Bench in Baburao Salokhe’s case in paragraphs 17 and 18, in our opinion, are relevant. They read as under :- "17. The legal position as regards MRTP Act on the basis of aforesaid observations made by Apex Court in Bhavnagar University emerges -5- 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 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 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 in 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. The learned counsel for Corporation relied upon paragraphs 23 to 25 of Prakash Rewadmal Gupta (supra). Paragraphs 23 to 25 of the said judgment read thus :- -6- 23. A judgment of a Division Bench of this Court consisting of M.L. Pendse J. (as the learned Chief Justice then was) S.M. Jhunjhunwala J. in Robert Joseph Castellino vs. State of Maharashtra, throws light on the issue which arises in the present case. In the said case, in a Development Plan which was published on 6th August 1966, certain lands situated at Andheri (East) were reserved for a recreation ground. on 21st march 1988, the owners and developers served a notice on the Municipal Corporation under section 127 and having received no reply therein contended by a letter dated 20th December 1988 that the reservation had lapsed. The Corporation, thereafter, claimed that it had passed a resolution on 13th September 1988 recommending the acquisition of the lands and it was forwarded to the Collector on 16th September 1988. In the meantime, on 30th April 1988, a fresh draft Development Plan was published inviting objections and in the said plan also the lands were -7- reserved for the same public purpose viz. for a recreation ground. Subsequently, on 26th August 1994 a notification under section 6 of the land Acquisition Act, 1894 as required under subsection (2) of section 126 of the M.R.T.P. act 1966 was published. The Division Bench of this Court held that while the Municipal Corporation had taken steps for the acquisition of the land within a period of six months of the service of the notice under section 127, it was not open to the State Government to wait for a period of 6 years thereafter to issue a notification under section 6 of the Land Acquisition Act, 1894. The explanation which had been offered by the special Land Acquisition Officer for the delay was held to be entirely unsatisfactory. The Division Bench then held that in the circumstances the petitioner would be entitled to a relief of the declaration that the Reservation had lapsed but for what had transpired during the pendency of the petition. That circumstance was that on 30th April 1988, which was a month after the notice was served under -8- section 127 of the Act, the Draft Development Plan was published in which the lands were again shown to be reserved for a public purpose. The petitioners before the Court sought the deletion of the land from reservation, but their claim was not accepted and the final Development Plan was sanctioned on 12th November 1992. The submission which was urged on behalf of the State was that notification under section 6 of the Land Acquisition Act 1894 was in pursuance of the final Development Plan which was sanctioned. This Court accepted the aforesaid contention and, while dealing with the objection of the petitioner that the fresh reservation in the revised Development Plan was mala fide, the Court held as follows :- "It was urged that the lands were reserved for a public purpose with effect from year 1966 and no steps were taken to acquire the same and it would be unjust and unfair to the petitioners that the Government should be permitted to acquire the -9- lands in year 1994. The contention that the respondents are acting mala fide cannot be accepted, even assuming that the reservation under 1966 development plan had lapsed because of failure of the respondents to take requisite steps after service of purchase notice under section 127 of the Act, still that cannot lead to the conclusion that the public purpose for which the lands were designated had come to an end. The provisions of section 127 prescribed that the reservation would lapse but lapsing of the reservation is not equivalent to the lapsing of the public purpose. It is always open for the planning authority to reserve the land in respect of which the reservation had lapsed for a public purpose on the next development plan." These observations are in our respectful view opposite to the situation in the present case and with respect, we concur -10- with the proposition of law which had been enunciated in the judgment of the Division Bench of this Court. As already noticed earlier, section 127 deals with a specified contingency viz. one where the lands which have been reserved have not been acquired within a period of 10 years of the enforcement of the final Development Plan or the final Regional Plan, as the case may be. The provisions of the section have to harmoniously construed with the other provisions of the Act. Section 127 does not impose a fetter on the duty of the public authority to revise the Development Plan and if it is found so necessary to impose a fresh reservation or to continue the existing reservation if public interest so warrants. This interpretation is consistent with the language of section 127, finds support in the judgment of the Division Bench and would obviate a serious prejudice to public interest if the Court were to come to the conclusion that the lapsing of the reservation in the Development Plan would lead to the consequence that the land in respect of -11- which reservation had lapsed is irretrievably lost for the public purpose for which a reservation is considered necessary in the interests of the public. 24. Unlike section 127, section 49 of the Act is not prefaced by the requirement that the land which is the subject matter of reservation, allotment or designation for any purpose has not ben acquired within a period of ten years from the date on which the final Regional or Development Plan as the case may be, has come into force. The implementation of a final Regional or Development Plan and the lapse of a period of ten years from its enforcement is not a condition incorporated for the applicability of section 49. Section 49 empowers the owner or person affected to serve on the State Government a notice requiring the Appropriate Authority to purchase his interest in the land in accordance with the provisions of the Act in certain specified contingencies. These specified contingencies are provided for in subsection (1) of section 49 and amongst -12- them are two which should be material for the present purposes. Clause (a) of subsection (1) of section 49 deals with a situation where land is designated by a plan as subject to compulsory acquisition. Clause (d) deals with a situation where permission for the development of land is refused or is granted subject to conditions. Under section 46, a Planning Authority while considering an application for permission to develop land has to have regard to the provision of any draft or final plan or proposals. If the Planning Authority refuses, as in the present case, development permission on the ground that the land is reserved in the Draft Revised Development plan for a public purpose, the provisions of section 49 are attracted. Where the owner claims that the lands has become incapable of reasonably beneficial use in its existing state or that it cannot be rendered capable of reasonably beneficial use as a result of the conditions imposed for development or where the owner of the land claims that because of the -13- designation or a allocation of the land in any plan, he is unable to sell it except at a price lower than that at which he might reasonably have been expected to sell the land he is empowered to issue a notice of purchase to the State Government. The State Government on receipt of the purchase notice has to call for the report of the Planning Authority and the Appropriate Authority. The State Government may thereafter, confirm the purchase notice or refuse to do so or, as the case may be, direct that development permission be granted with or without conditions. Sub-section (5) of section 49 provides that the purchase notice shall be deemed to have been confirmed if the State Government does not pass any final order thereon within six months of the service of the notice. Similarly, under sub-section (7) the reservation is deemed to lapse 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 -14- under section 126. The power of the land owner to issue a notice of purchase under section 49 is conditioned by the provisions of sub-section (1) to the section. Therefore, even if the reservation cannot lapse in a given case because the requirements of section 127 are not satisfied or met, the land owner still has the option of moving the State Government under section 49 on the ground that the requirements of section 49 have been duly fulfilled. Where the land is designated in a plan as subject to compulsory acquisition or where the development permission has ben refused as in the present case, it is well open to the land owner to apply to the State Government for a direction to the Appropriate Authority to purchase it in accordance with the provisions of the Act. The land owner to whom he remedy under section 127 is not available in a case such as the present, as a result of the reservation of the land in the revised Draft Development Plan, still has the remedy of moving the State Government under section 49 of the Act. The State -15- Government must also keep in the balance the need of the land owner to develop the land and of not subjecting him to an indefinite fetter upon the beneficial use and enjoyment of his property. 25. In the present case, a period of ten years had elapsed after the final Development Plan was published on 1st February, 1978. In the Draft Revised Plan of 1988 thereafter the reservation of the land for the purposes of the College of the third respondent continued to subsist. The issuance of the notice under section 127 will not have the effect of obliterating the reservation of the land under the Revised Draft Development Plan. The remedy of the petitioner would be to move to the State Government under section 49 of the Act which it is open for the petitioner to do. The petitioner, it must be noted, has relied upon a judgment of a Division Bench of this Court in Mohamed Ibrahim Ejaz and anr. vs. State of Maharashtra and anr. That case also involved the same reservation as was so originally in -16- the present case for the extension of the Dr B.N. Purandare College and the Survey numbers in question were Survey No.80, Hissa Nos.1, 2 and 3 and Survey No.81. The land owner had issued a purchase notice under subsection (1) of section 49 on 7th July 1980. No steps were taken within the stipulated period after which on 18th December 1982, the Government confirmed the purchase notice. Relying on the provisions of sub-section (5) of section 49, this Court held that the notice shall be deemed to have been confirmed at the expiration of a period of six months and if within one year from that date no action had been adopted by the Municipal Council for commencing acquisition proceedings, the reservation would lapse. The petitioner relies upon the judgment of the Division Bench a copy whereof is annexed to the petition. The petitioner has however, not followed the remedy under section 49 and has instead taken recourse to section 127 which for the reasons already noted will not assist him. -17- In the facts and circumstances of the present case therefore, we are of the view that the petitioner is not entitled to a declaration, as prayed for, that the reservation in respect of his land in the Development Plan has lapsed; that the reservation in favour of the third respondent was illegal and that the petitioner is entitled to carry on construction on the land. We leave it open to the petitioner to pursue the remedy under section 49 of the Act and in the event of a notice under the aforesaid provision being issued by the petitioner, the State Government shall deal with it appropriately having regard to the provisions of the Act and what has been set out by us earlier. The leaned Counsel appearing on behalf of the petitioner has submitted that in response to a communication dated 3rd July 2001 of the Chief Officer of the first respondent, the third respondent has signified by a letter dated 7th July 2001 that it does not possess the funds requisite for the acquisition of the land. If this is so, an early resolution -18- of the question as to whether the land is at all required to be kept under reservation is called for. The Municipal Council which is the Planning Authority as well as the third respondent have avoided the responsibility of taking a considered decision of the question as to whether the land is required to implement the reservation, on he specious plea that the third respondent is the ’Appropriate Authority’. The Special Land Acquisition Officer had as far back as on 27th June, 1990 and on 26th September 1995 addressed communications to the third respondent setting out certain requisitions. The third respondent claims that it was in correspondent with the authorities of the Education Department. Be that as it may, we are of the view that the first respondent must expeditiously determine whether the reservation is now necessary and whether the first respondent is in fact in a position, whether by itself or together with the third respondent, to implement the reservation by financing the cost of the acquisition of the land. The first respondent shall make this -19- determination within a period of three months from today and will take necessary steps in accordance with law if it arrives at a decision that the reservation should not be continued. We also leave it open to the petitioner to take steps under section 49 of this Act, if he is so advised. In the event of a notice being given under section 49 the State Government, would have regard to all relevant facts and circumstances and arrive at a considered decision. Subject to the aforesaid direction to the first respondent and while leaving it open to the petitioner to take recourse to the remedy under section 49 or under any other provisions of law, we decline to grant relief in the terms as prayed for. 18. In our considered view, the observations made in paragraph 23 of the Prakash Rewadmal Gupta are not consistent with the law laid down by apex Court in Bhavnagar University to the effect that section 21 of Gujarat Act (similar to section 38 of MRTP Act) which imposes statutory obligation on the part of the State and the appropriate authority to -20- revise the development plan does not take away the rights of owners in terms of sub-section (2) of section 20 (similar to section 127 of MRTP Act). As per the proposition propounded by Apex Court in Bhavnagar University when applied to sections 38 and 127 of MRTP Act it can safely be held that section 38 does not envisage that despite the fact that in terms of section 127, the designation or reservation shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 38 does not manifest a legislature intent to curtail or take away the right acquired by a landowner under section 127 of getting the land defreezed." 3. It is clear from the above quoted observations that due to failure of the Municipal Corporation to acquire the land after service of notice under section 127 of the said Act, the reservation of the land in question lapsed and therefore, the same land could not have been reserved for the same public purpose in the revised draft development plan. As the reservation of the land of the petitioners in the revised draft development plan was not valid, obviously the rejection of the application of the petitioners for building -21- permission on that ground was also not valid. In the result therefore, the communication dated 14th November 2005 will have to be set aside. It is accordingly set aside. The Municipal Corporation is directed to consider the application submitted by the petitioners for building permission in accordance with law and in the light of the observations made above. Rule is made absolute accordingly with no order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( J.P. DEVADHAR J.)