Sau. Kamalbai Bhagwatrao Khandagale v. The State of Maharashtra

Judgment

4. ..RESPONDENTS Mr A.B.Kale, Advocate for petitioner Mr P.P.More, Assistant Government Pleader for respondents 1 & 2 Mr D.D.Pokharkar, Advocate for respondent No.3 Mr S.T.Shelke, Advocate for respondent No.4

CORAM : SMT.NISHITA MHATRE & S.S. SHINDE, JJ DATE : 8th April 2011 W.P.No.2887 of 2008 2 ORAL JUDGMENT (PER SMT. MHATRE, J.)

1. The petition has been preferred for a direction against the respondents to deserve the land bearing Gut No.222 to the extent of 8115.09 square meters, situated at Belapur (Bk.), Taluka Shrirampur, District Ahmednagar.

2. The facts in brief in the present case are as follows : Land admeasuring 8115.09 square meters from Gut No. 222/1 in village Belapur (Bk) was reserved for a playground under a Notification dated 14.12.1983. It appears that the land was neither developed nor acquired by the respondents after the final development plan was sanctioned by respondent No.2. On 5th September 2005, the petitioner applied to the authorities to de reserve the land as it had not been acquired for more than ten years after the final development plan had been sanctioned. This notice was issued under Section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as “the M.R.T.P. Act”).

3. Admittedly, no notification under Section 6 of the Land Acquisition Act has been issued by the respondents. In fact, no steps have been taken by the respondents for acquisition of the aforesaid land. W.P.No.2887 of 2008 3

4. An affidavit has been filed on behalf of respondents 1 and 2 in which it has been averred that the land was required for a playground by the appropriate authority, i.e. the Zilla Parishad. The affiant has stated that the Grampanchayat had passed a resolution on 28th December 2006, which was sent to the Zilla Parishad for acquisition of the aforesaid land. This resolution was forwarded by a letter dated 1st February 2007. Therefore, according to the affiant the proposal for acquisition of the land was submitted to the Collector, Ahmednagar well within the period of six months stipulated in Section 127 of the M.R.T.P. Act and, therefore, the land could not be de reserved according to the affiant.

5. An affidavit has also been filed by the Sarpanch of the Grampanchayat of village Belapur. He has stated that there were no funds available with the Grampanchayat for acquisition of the land. The Grampanchayat resolved at a special meeting that, the petitioner's land should be deleted from the reservation in the develop0ment plan of the village because it was not economically viable for the Grampanchayat to acquire the land of the petitioner. This was a unanimous decision taken by the Gramsabha on 20h September 2008. W.P.No.2887 of 2008 4

6. An affidavit is also filed by the Deputy Chief Executive Officer (Panchayat), Zilla Parishad, Ahmednagar in which he has stated that some funds have been sanctioned for the purposes of development of the village, which could be utilised to comply with the development plan. It has further been averred that since the purchase notice was not served on the Zilla Parishad, it was defective and not in accordance with the provisions of Section 127 of the Act.

7. Mr Kale, the learned Advocate for the petitioner submitted before us that the petitioner has given notice in compliance with the provisions of Section 127 of the M.R.T.P. Act. No steps were taken, according to the learned Advocate, for acquisition of the land as envisaged in the judgement of the Supreme Court in the case of Girnar Traders Vs. State of Maharashtra and ors., reported in (2007) 7 Supreme Court Cases 555. Apart from this, he submitted that once the Grampanchayat had resolved not to take any steps in furtherance of the acquisition of the land of the petitioner, there was no need to continue the reservation for the playground. He further contended that the purchase notice having been served on the Gramsevak could not be said to be invalid, as the Gramsevak is an appropriate authority, as envisaged under Section 2(3) of the M.R.T.P. Act. W.P.No.2887 of 2008 5

8. The learned AGP Mr. More has urged that the petitioner has served the purchase notice not on the authorities mentioned in Section 127 of the M.R.T.P. Act but on the Gramsevak of the Belapur (Bk) Grampanchayat and, therefore, the purchase notice was not valid. According to him the land could not be de reserved in such circumstances as the basic requirement of a valid purchase notice had not been fulfilled by the petitioner.

9. In our view, the submissions of the learned Advocate for the petitioner are well founded. Undoubtedly, the reservation for the land was made under the development plan which was finalised in 1983. No steps were taken by the authorities to acquire the land. The petitioner had issued a notice on 5th September 2005 indicating her intent to have the land de reserved or for payment of the market value of the land. Section 127 of the M.R.T.P. Act is clear and unambiguous inasmuch as unless steps are taken towards acquisition of a land, which has been reserved in a development plan, after a purchase notice is served, the reservation lapses. As held in Girnar Traders (supra), the steps to be taken for acquisition as contemplated under Section 127 of the M.R.T.P. Act means the issuance of a notification under Section 6 of the Land Acquisition Act. Admittedly, this has not been done. Therefore, the reservation has lapsed in view of the deeming W.P.No.2887 of 2008 6 fiction contained in Section 127 of the M.R.T.P. Act.

10. The contention of the learned Assistant Government Pleader appearing for respondents 1 and 2 that the Gramsevak was not the appropriate authority, is untenable. Under Section 127 of the M.R.T.P. Act a purchase notice must be issued to the planning authority, development authority or the appropriate authority. In the present case, the petitioner has sent the purchase notice to the Gramsevak of the Grampanchayat of village Belapur with copies to Assistant Director of Town Planning as well as the Sarpanch of village Belapur (Bk). Appropriate Authority as defined under Sub section 3 of Section 2 of the M.R.T.P. Act means any public authority on whose behalf any land is designated for a public purpose and which it is authorised to acquire under any plan or scheme. In the present case the land was reserved for a playground in the village on behalf of the Grampanchayat. The Gramsevak, in our opinion, would be the appropriate authority in respect of such a body. In any event a copy of the purchase notice was served on both the Assistant Director of Town Planning and the Sarpanch of village Belapur. Thus the acquiring body was well aware of the petitioner's intent to have the land de reserved.

11. In these circumstances, we see no reason to deny the petitioner her land, especially since the body for whom the land W.P.No.2887 of 2008 7 was reserved has shown no interest in the land. In fact, a resolution has been passed by the Grampanchayat for de reservation of the land.

12. Accordingly, the petition is allowed. The Petitioner’s land admeasuring 8115.09 square meters from Gut No.222, which was reserved in the development plan for a playground shall be de reserved and made available to the petitioner for using it in accordance with law. Rule made absolute accordingly. ( S.S. SHINDE, J.) ( SMT. NISHITA MHATRE, J.) (vvr/2887.08wp)