Inordinate delay in acquiring land not a ground for denying purchase rights to the land: Bombay High Court

 on 13 04 2021 on 16 04 PA Nitin Jagtap 1 10 34 WP 205 2021.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO.205 OF 2021Jayantilal Himmatlal Oswal )Age : 64 years Occupation : Business )R of House No. 56 2 F Ward Lonawala )Taluka Maval District Pune)…Petitioner Versus1. The State of Maharashtra )Through its Urban Development Department )Mantralaya Mumbai )2.Director of Town Planning )State of Maharashtra Ofce at Commissioner of Pune )Pune)3.Lonawala Municipal Council )Through its Chief Ofcer Lonawala )Taluka Maval District Pune )...Respondents Mr.U.B.Nighot for the Petitioner. Mr.S.B.Kalel AGP for the State. Mr.A.A.Garge for Respondent No. 3. on 13 04 2021 on 16 04 PA Nitin Jagtap 2 10 34 WP 205 2021.docCORAM : S.J. KATHAWALLA &SURENDRA P. TAVADE JJ. DATE : 9TH APRIL 2021(THROUGH VIDEO CONFERENCING)ORAL ORDER:1.The Petitioner is the owner of land more particularly set out describedhereinafter. Respondent No.1 is the State of Maharashtra Respondent No.2 is theDirector of Town Planning Authority and Respondent No. 3 is the Lonavala MunicipalCouncil. 2.The Petitioner has fled the above Writ Petition inter alia seeking thefollowing reliefs :“(b) That by an appropriate writ order and or direction it isdeclared that the reservation designation or allotmentprovided under the development plan and reviseddevelopment plan of Respondent No. 3 LonavalaMunicipal Council in respect of 390 Sq. Mtrs. Land fromSurvey No. 21 Hissa 1 B Lonavala within the jurisdiction ofLonavala Municipal Council is lapsed and said land isavailable to Petitioner for the purpose of development orotherwise as is permissible That by an appropriate writ order and or direction it isdeclared that the said reserved land i.e. 390 Sq. Mtrs. Land on 13 04 2021 on 16 04 PA Nitin Jagtap 3 10 34 WP 205 2021.docfrom Survey No. 21 Hissa 1 B Lonavala within jurisdictionof Lonavala Municipal Council has been de reserved underthe provisions of Maharashtra Regional Town Planning Actas per the purchase notice dated 21.7.2018 for want of validsteps by Lonavala Municipal Council. ” 3.The facts and circumstances giving rise to the present petition are inbrief set out hereunder : 3.1.Under a registered sale deed dated 17th October 1986 the Petitioner andhis brother purchased a plot of land ad measuring 1945.46 Sq. Mtrs. bearing SurveyNo. 21 Hissa No. 1B alongwith a bungalow standing thereon bearing municipal houseNo. 92 ward Gto the Respondent No.3 and requested the Respondent No. 3 Lonavala on 13 04 2021 on 16 04 PA Nitin Jagtap 5 10 34 WP 205 2021.docMunicipal Council to take appropriate steps for acquisition of the said land of thePetitioner. 3.10. After serving the purchase notice on the Respondent No. 3 LonavalaMunicipal Council on 21st July 2018 under Section 127 of the said Act the Petitionerwaited for the statutory period of two years i.e. till 20th July 2020 during which nosteps in regard to the acquisition of the said land were taken by the Respondent No.3 Council. 3.11.The Petitioner is therefore compelled to fle the above Writ Petitionseeking reliefs set out in paragraph 2 hereinabove.4.Smt. Suvarna Ogale acting chief ofcer of Respondent No.3 LonavalaMunicipal Council has fled an Afdavit dated 23rd March 2021 on behalf ofRespondent No.3 stating as under :4.1.It is true that the Petitioner had on 21st July 2018 served a purchasenotice on the Respondent No. 3 Council under Section 127 of the MRTP Act.4.2.Since the Petitioner fled the above Writ Petition in December 2020 Respondent No. 3 wrote a letter dated 17th February 2021 to their Advocate andrequested him to seek an extension of 6 months from the Court on the ground that theissue is pending before the General Body of the Lonavala Municipal Council and sincea nationwide lockdown was declared from 24th March 2020 no decision could betaken.4.3.In the present matter the purchase notice under Section 127 of said Act on 13 04 2021 on 16 04 PA Nitin Jagtap 6 10 34 WP 205 2021.docwas issued on 21st July 2018 and the statutory period of 2 years expired on 21st July 2020 i.e. during the Pandemic.4.4.The State of Maharashtra has issued a G.R. dated 4th June 2020 underSection 154 of the MRTP Act 1966 by which extension of 9 months has been grantedfor completion of development work and other stipulated work. Though theacquisition matters are not included in the said G.R. the Court may give beneft of thesaid G.R. dated 4th June 2020 to the present Respondent No. 3 Council.5.The learned Advocate for the Petitioner took us through the facts in thepresent Petition which are already set out in paragraph 3 hereinabove. He pointed outthat the development plan under which the said land belonging to the Petitioner wasreserved was sanctioned on 28th February 1978. Since the said land was not acquiredwithin 40 years from the date on which the development plan came into force thePetitioner served a statutory notice dated 21st July 2018 under Section 127(1) of thesaid Act to the Respondent No.3 Council. Respondent No.3 admittedly failed toacquire the said land within the statutory period of two years. In the circumstances asprovided under Section 127 of the Act the reservation of the said land is deemed tohave been lapsed and the said land stood released from the reservation and becameavailable to the owner Petitioner for the purpose of development. However theRespondents failed to comply with the mandate provided in sub Section 2 of Section127 of the Act i.e. issuing a Notifcation in the ofcial gazette notifying the lapsing ofthe reservation of the said land thereby compelling the Petitioner to fle the above on 13 04 2021 on 16 04 PA Nitin Jagtap 7 10 34 WP 205 2021.docWrit Petition seeking the reliefs set out in paragraph 2 hereinabove. It is alsosubmitted that admittedly the extension granted by the Government by G.R. dated 4thJune 2020 pertains to the development work and other stipulated work required to becarried out by the Applicants and does not apply to matters pertaining to acquisition.Therefore the question of this Court granting the beneft of the extension to theRespondent No. 3 Council does not arise. It is submitted that even otherwise thesaid extension admittedly came to an end on 4th March 2021.6.The learned Advocate appearing for the Respondent No. 1 State hassubmitted to the Orders of this Court.7.The learned Advocate appearing for the Respondent No. 3 has reiteratedwhat is stated in the afdavit fled on behalf of the Respondent No. 3 Council thecontents of which are already set out in paragraph 4 hereinabove.8.We have perused the Writ Petition as well as the afdavits fled by theparties. We have considered the facts of the present case the submissions made by thelearned Advocates for the parties and the case law relied upon by the Advocate for thePetitioner.9.Chapter VII of the MRTP Act deals with “Land Acquisition”. Section125 of the MRTP Act deals with “Compulsory acquisition of land needed for purposeof regional plan development plan or town planning etc.” Section 126 of the MRTPAct deals with “Acquisition of land required for public purposes specifed in plans.”Section 127 of the MRTP Act pertains to “Lapsing of reservations”. Section 127 of the on 13 04 2021 on 16 04 PA Nitin Jagtap 8 10 34 WP 205 2021.docMRTP Act is relevant for deciding the issues raised in the present Writ Petition and istherefore reproduced hereunder :“127. Lapsing of reservationsIf any land reserved allotted or designated for anypurpose specifed in any plan under this Act is not acquiredby agreement within ten years from the date on which a fnalRegional plan or fnal Development Plan comes into force[or if a declaration under subsectionorof section 126is not published in the Ofcial Gazette within such period the owner or any person interested in the land may servenotice alongwith the documents showing his title orinterest in the said land on the Planning Authority theDevelopment Authority or as the case may be theAppropriate Authority to that efect and if within twelvemonths] from the date of the service of such notice the landis not acquired or no steps as aforesaid are commenced forits acquisition the reservation allotment or designationshall be deemed to have lapsed and thereupon the landshall be deemed to be released from such reservation allotment or designation and shall become available to theowner for the purpose of development as otherwise on 13 04 2021 on 16 04 PA Nitin Jagtap 9 10 34 WP 205 2021.docpermissible in the case of adjacent land under the relevantplan.On lapsing of reservation allocation or designation ofany land under sub sectionthe Government shall notifythe same by an order published in the Ofcial Gazette.]”10.The Respondent No. 3 has not denied that the Respondent No.3 has nottaken any steps for acquisition of the said land for a period of 40 years i.e. from 28thFebruary 1978 when the development plan of the Lonavala Municipal Council wassanctioned and under which 390 Sq. Mtrs. of the Petitioner’s Land was reserved forthe purpose of Play Ground for Primary School and which reservation continued evenunder the revised development plan which came into force on 27th August 2005.Though the Petitioner issued a purchase notice on 21st July 2018 the RespondentNo.3 failed to take any steps towards commencement of the acquisition. By the G.R.dated 4th June 2020 issued by the State of Maharashtra under Section 154 of theMRTP Act an extension of 9 months is granted only in respect of the permissionsgranted for development construction work without recovering from the Applicantsany tax or interest with regard to the extended period and does not apply to the periodprescribed in the provisions pertaining to acquisition. Therefore the question of thisCourt granting beneft of the G.R. dated 4th June 2020 to the Respondent No. 3 Council does not arise. In any event even if it is assumed that the extension of 9 on 13 04 2021 on 16 04 PA Nitin Jagtap 10 10 34 WP 205 2021.docmonths granted under the said G.R. dated 4th June 2020 applied to matters pertainingto acquisition the said extension has lapsed on 4th March 2021 by which time theRespondent No. 3 Council has not taken any steps to acquire the Petitioner’s landad measuring 390 Sq. Mtrs. 11.We are therefore convinced that in the instant case the LonavalaMunicipal Council not only failed to acquire the land of the Petitioner reserved underthe fnal development plan which came into force from 28th February 1978 and therevised development plan which came into force on 27th August 2005 but also failedto take steps towards commencement of the acquisition within two years from the dateof receipt of the purchase notice resulting in lapsing of the said reservation. 12.For the above reasons we allow the Writ Petition in terms of prayerclausesandreproduced in paragraph 2 hereinabove. However there shall be noOrder as to costs.13.The Writ Petition is accordingly disposed of.

Summary: In the matter of municipal administration and land acquired for public purposes, any inordinate delay by the authorities is not a ground for retaining any purchase rights of the prospective purchaser. This was recently concluded in the matter of Jayantilal Himmatlal Oswal v Lonawala Municipal Council &amp; Ors [WP NO.205 OF 2021] before the bench constituting S.J. Kathawalla J &amp; Surendra P. Tavade J. The petitioner is the owner of the land and the respondent manifests the State Town Planning authorities along with the Lonavla Municipal Council. Out of his land measuring 1946 Sq mtrs., 390 sq mtrs and 204.53 Sq. Mtrs was served by the development plan of the Lonavala Municipal Council was sanctioned by the Government of Maharashtra vide G.R. No. TPS/1876/940 dated 28th February 1978. Out of his land ad-measuring 1704.93 Sq. Mtrs. the Petitioner by a sale deed dated 10th November, 2009, sold 57.49 Sq. Mtrs. of land on and from 10th November, 2009, till date holds / owns the said land ad-measuring 1683.46 Sq. Mtrs. in place of the original 1945.46 Sq. Mtrs. The above reservations were continued even after the Development Plan underwent revision in 2005.
It was contended that the Lonavala Municipal Council failed to acquire the said land which was kept under reservation for the purpose of Play Ground for Primary School in an inadvertent gap for a period of 40 years and even after the service of purchase notice under section 127 of the Maharashtra Regional and Town Planning Act, the statutory period of purchase of the land lapsed. The court observed in confirmation with the above contention that “It has not been denied that the Respondent has not taken any steps for acquisition of the said land for a period of 40 years i.e. from 28th February, 1978 when the development plan of the Lonavala Municipal Council was sanctioned and under which 390 Sq. Mtrs. of the Petitioner’s Land was reserved for the purpose of PlayGround for Primary School and which reservation continued even under the revised development plan which came into force on 27th August, 2005.” It was further observed that the petitioner issued a purchase notice on 21st July, 2018, the respondent failed to take any steps towards commencement of the acquisition. By the G.R. dated 4th June, 2020 issued by the State of Maharashtra under Section 154 of the MRTP Act, an extension of 9 months had also been granted only in respect of the permissions granted for development/construction work without recovering from the Applicants any tax or interest with regard to the extended period, and does not apply to the period prescribed in the provisions pertaining to acquisition.