skc 1 WP-5250-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 5250 OF 2009 Rajendra Rasiklal Shah & Ors. ..Petitioners versus Nashik Municipal Corporation & Ors. ..Respondents Mr. V. V. Tulzapurkar – Sr. Advocate with Mr. R. D. Soni and Mr. Vipin R. Kasle i/b. Ram & Co. for Petitioners. Mr. M. L. Patil for Respondent Nos. 1 and 2. Mr. Harihar Bhave and Mr. Ashok R. Varma for Respondent No. 4. Mrs. Jyoti S. Pawar – Additional Government Pleader for Respondent No. 5. CORAM : D. D. SINHA & A. R. JOSHI, JJ. 12 August 2011. P.C. : Heard the learned counsel for the parties. Rule. Rule returnable forthwith. Heard by consent of the parties. 2. The learned counsel for the petitioners has submitted that the petitioners are the owners of plot of land bearing Survey No.726/1 (part) skc 2 WP-5250-09 and final plot no. 483C in TPS-II at Nashik admeasuring about 1800 sq. meters. The said plot was purchased by the petitioners by registered sale deed for valuable consideration. 3. It is further contended that on 28th June 1993 the development plan for Nashik City was sanctioned by the Government and the same plan came into force with effect from 16th November 1993. In the said development plan the land in question was shown as reserved for post office at site No. 330. 4. The learned counsel for the petitioners has contended that as per the provisions of Section 127 of the MRTP Act if the land is reserved or designated for any purpose specified in the plan and same is not acquired within ten years from the date on which the development plan came into force and if the proceedings for acquisition under Land Acquisition Act are not commenced within such period, the owner or any person interested in the land can serve a notice to the authority concerned to the effect and if the land is not acquired and/or no steps are commenced for its acquisition, reservation, allotment, designation shall deemed to have been lapsed. 5. The learned counsel therefore contended that since no action in skc 3 WP-5250-09 respect of the land in question of the petitioners was taken by the authorities, the petitioners on 19th November 2003 served notice under section 127 of the MRTP Act, calling upon the authorities concerned to acquire the said land by following procedure under the Land Acquisition Act within a period of six months from the date of receipt of the said notice. On 19th May 2004 six months period expired however the authorities failed to take any steps for acquisition of the plot in question of the petitioners and therefore under the provisions of section 127 of the MRTP Act reservation on the land in question lapsed and the petitioners became entitled to develop the said land in accordance with the Development Control Rules. 6. The counsel for the petitioners has submitted that on 21st May 2004 the petitioners submitted lay out plans to respondent no.1 – Corporation for development of the said plot of land and paid scrutiny fee to the Corporation. The respondent no.1 – Corporation vide its letter dated 22nd June 2004 addressed to the respondent no.4 informed that the reservation of the said plot at site No. 330 has been lapsed since the proceedings for acquisition of the land were not initiated within the period of six months from the date of purchase notice. The respondent no.1 called upon the respondent no. 3 to inform whether any action for acquisition of the said property has been initiated or not. skc 4 WP-5250-09 7. The learned counsel for the petitioner has submitted that since the purchase notice issued by the petitioners under section 127 of the MRTP Act was addressed to the wrong authority as claimed by the respondent no. 4, second purchase notice dated 28th January 2008 under section 127 of the MRTP Act was issued to the respondent no.3. However inspite of the second purchase notice, no proceedings for acquiring the land in question belonging to the petitioners were commenced till this date nor any decision in this regard was taken by the respondent no. 3 or by the respondent no. 4 and therefore as per the provisions of section 127 of the MRTP Act the reservation on the aforesaid land deemed to have been lapsed and the petitioners be declared entitled to develop the said land in accordance with the Development Control Rules. 8. The learned counsel for the respondent no. 4 has submitted that as per the Government of India, Ministry of Communication Department of Posts Order under No. 482-32/78 IPS(BG) dated 6th June 1979 the decision to purchase / acquire a plot has to be taken by the Head of the Circle /Directorate only. Hence, the case has been referred by the Post Master General Aurangabad Region, Aurangabad to appropriate authority for taking decision vide Regional Office letters dated 01-06-2001, skc 5 WP-5250-09 20/24-06-2002 and 03-11-2008. It is further submitted that the proposal to acquire the land in question is under progress as per the departmental procedure it is immaterial to imply six months period of notice has been elapsed. 9. Considered the contentions canvassed by the respective counsel. In the instant case the following facts are not in dispute: i. The development plan of Nashik City was sanctioned by the Government and it came into force with effect from 16th November 1993. ii. The land of the petitioners was reserved for post office at site no. 330. iii. On 19th November 2003, the petitioners served notice under section 127 of the MRTP Act to the authorities calling upon them to acquire the land by following procedure under the Land Acquisition Act within six months. iv. The period of six months expired on 19th May 2004, however, no decision to acquire the land was taken either by the respondent no. 3 or by the respondent no. 4. skc 6 WP-5250-09 v. The petitioners were required to issue second purchase notice dated 28th January 2008 under section 127 of the MRTP Act since the earlier notice appeared to have been issued in the name of the wrong authority. Neither the respondent nos. 3 and 4 had taken decision to acquire the land within a period of six months from the service of the second purchase notice. vi. Even till today no decision has been taken to acquire the land in question belonging to the petitioners. 10. The respondent no.4 in paragraph 9 of the affidavit dated 6th July 2010 has specifically stated that proposal to acquire the land in question is under progress as per the departmental procedure which clearly shows that even till this date no decision to acquire the land is taken by the department nor there is any material placed before us by the respondent no.4 to demonstrate that acquisition process has been commenced to acquire the land in question. 11. As per the provisions of section 127 of the MRTP Act if the land is reserved or designated for any purpose specified in the plan and is not acquired within ten years from the date on which the development plan skc 7 WP-5250-09 came into force and if the proceedings for acquisition under Land Acquisition Act are not commenced within such period the owner / person interested in the land is required to serve notice of purchase to the authority concerned and within a period of six months from the date of receipt of such notice if no steps are taken to acquire the land reservation, allotment, designation shall deemed to have been lapsed as per the provisions of section 127 of the MRTP Act. 12. In the instant case from the above referred undisputed facts, it is evident that the petitioner on expiry of ten years from the date of development plan of City of Nashik came into effect issued notice of purchase and the statement in the affidavit filed by the respondent no. 4 shows that till this date no decision has been taken in this regard and there is no material placed before us by the respondent no.4 to hold that the proceedings for acquisition of land has been even commenced. In absence thereof and as per the scheme of section 127 of the MRTP Act reservation, allotment or designation if any shall be deemed to have been 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 case of adjacent land under the relevant plan. skc 8 WP-5250-09 13. For the reasons stated herein above, the reservation on the land in question of the petitioners has elapsed and the land in question is released from the reservation and the petitioners will be entitled to develop the land as otherwise permissible in case of the adjacent land under the relevant plan. Rule made absolute in the above terms. No order as to costs. (D. D. SINHA, J.) (A. R. JOSHI, J.)