Hasmukhrai V. Metha vs State Of Maharashtra & Ors

In brief, factual matrix of the case is that the appellant Hasmukhrai Vanmalidas Mehta owns land in Survey No. 16, Hissa No.3 and Survey No. 18, Hissa No. 4, situated in Village Sheel, Taluka Khopoli, District Raigad in the State of Maharashtra. On 14.02.1990, he applied to the Planning Authority seeking permission to carry out development of land with necessary documents as required under Section 44 of MRTP Act. The appellant was granted permission and issued commencement certificate dated 03.04.1990 by respondent No.4 (Chief Officer, Khapoli Municipal Council) under Section 45 of said Act read with Section 89(4) of Maharashtra Municipalities Act, 1965. The Development Plan of Khopoli Municipal Council was sanctioned by the Government, vide Order No. TPS/1476/32/UD-5 dated 17.12.1976. It is pleaded on behalf of the appellant that the land in question, belonging to the appellant, was included in the residential zone in the sanctioned plan of 15.1.1977. It is further pleaded that on 15.7.1991, the Chief Town Planning Officer granted 'No Objection Certificate' for utilization of the land for non-agricultural purpose. From communication dated 15.7.1991, made by respondent No. 4 it reveals that Development Plan for residential purpose was sanctioned, and commencement certificate was issued by him on 19.6.1992 for construction. Development charges amounting Rs.1,92,490/- were also recovered from the appellant by getting served notice dated 31.07.1998, for use of land for residential purpose.

However, on 14.1.1999 the appellant was informed by the respondent No. 4 that a fresh development scheme of Khopoli town has been prepared which includes appellant's survey Nos. 16/3 and 18/4 as a part of land reserved for Agriculture Produce Market Yard (for short "APM Yard") and for Truck Terminal. Reacting to it, on 17.8.2000 the appellant served a purchase notice under Section 49 of the MRTP Act as the land in question was already in the sanctioned plan left in 1977 for residential purposes. In reply to this, Director, Town Planning, vide his communication dated 16.3.2001, though confirmed receiving of the purchase notice, but directed the appellant to contact APMC, Khopoli. The Director, Town Planning wrote separate letter to Chief Officer of Municipal Council of Khopoli that the proceedings of land acquisition for APM Yard be initiated within one year from 16.3.2001 failing which it would amount to release of the land from the reservation for APM Yard. Consequently, Khopoli Municipal Council wrote a letter on 23.4.2001 to APMC to immediately initiate acquisition proceedings and to act on purchase notice served by the appellant. The appellant himself wrote a letter to respondent No. 5 (APMC) requesting for initiation of acquisition proceedings. Another letter was sent on 6.7.2001 by the respondent No. 4 to respondent No. 5 calling upon it to take necessary steps for acquisition of the appellant's land. However, no steps were taken for one year, i.e., by 15.3.2001. Respondent No. 4 again reminded respondent No. 5 between September, 2001 to March, 2002 to complete the acquisition proceedings. When nothing was done, the appellant again on 5.7.2002 sought revalidation of the permission for construction earlier allowed to him. After running from pillar to post, the appellant made a representation dated 13.2.2003 to the Secretary, Urban Development, Government of Maharashtra, on the above issue, but to no avail. Ultimately, the appellant filed writ petition in February, 2004 complaining that the respondents are neither acquiring land belonging to the appellant nor releasing the same from reservation for APM Yard, and sought necessary directions from the High Court.

By impugned order the High Court, by its two paragraphs order, dismissed the writ petition by observing that notice dated 17.8.2000 given by the writ petitioner (present appellant) invoking the provisions of Section 49 of the MRTP Act is of no help as the Development Scheme by then was not finalized. It is further observed by the High Court that Section 127 of the MRTP Act contemplates that the land be acquired by the Planning Authority within a period of 10 years after reservation, but in the present case, plan was finalized in March, 2003, as such before the expiry of ten years elapsed, no benefit can be given to him.

We think it pertinent to mention here that APMC, respondent No. 5, even after service of notice, has not cared to contest this appeal. Also, we think it relevant to mention that till date no steps appear to have been taken for acquisition of the land in question or to release the same. The land of appellant, in our opinion, can not be held up, without any authority of law, as neither the same is purchased till date by respondent authorities, nor acquired under any law, nor the appellant is being allowed to use the land for last more than twenty years.

In view of the principle of law laid down by this Court, as above, we are of the view that in the present case since neither steps have been taken by the authorities concerned for acquisition of the land, nor the land of the appellant is purchased under purchase notice, nor he is allowed to use the land for last more than twenty years, the land will have to be released as the appellant cannot be deprived from utilizing his property for an indefinite period.

Accordingly, we allow the appeal and set aside the impugned order passed by the High Court. Since no steps appear to have been taken till date for last more than twenty years either for acquisition or for purchase of the land under MRTP Act, 1966 by the authorities concerned, as such, the land in question stands released from reservation under Section 127 of the MRTP Act.

December 03, 2014.