RAVINDRA v. GHUGE & Y. G. KHOBRAGADE, JJ. DATE
Facts
*1* 6wp3316o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 3316 OF 20241.SHAIKH MOHIYODDIN SHAIKH SANDU,Age : 75 years, Occu : Nil,R/o Iqbal Chowk, Kazipura, Shahada,Taluka Shahada, Dist. Nandurbar.2.Iqbal Alimoddin Shaikh,Age : 48 years, Occu : Business,R/o Iqbal Chowk, Kazipura, Shahada,Taluka Shahada, Dist. Nandurbar.3.Rafiq Ahmed Beldar,Age : 49 years, Occu : Business,R/o Iqbal Chowk, Kazipura, Shahada,Taluka Shahada, Dist. Nandurbar....PETITIONERSVERSUS1.THE STATE OF MAHARASHTRA,Through Secretary,Urban Development Department,Mantralaya, Mumbai-32.2.Shahada Municipal Council,Shahada,Dist. Nandurbar.Through the Chief Officer....RESPONDENTS...Shri Subodh P. Shah, Advocate for the Petitioners.Shri S.R. Yadav Lonikar, AGP for Respondent No.1/State.Shri Jayant R. Shah, Advocate for Respondent No.2.... *2* 6wp3316o24 CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 24th June, 2024ORAL JUDGMENT ( Per Ravindra V. Ghuge, J. ) :- 1.Rule. Rule made returnable forthwith and heardfinally by the consent of the parties.2.The Petitioners have put forth prayer clauses A, Band C, as under:-“A] The Hon'ble High Court may be pleased toissue an appropriate writ, order or direction inthe nature of writ and thereby hold and declarethat reservations (Site No. 43) imposed on landGat No.18 under final development plan dated25.07.2006 stood lapsed.B] The Hon'ble High Court may be pleased toissue an appropriate writ, order or direction inthe nature of writ and thereby hold and declarethat the land Gat No. 18 totally admeasuring1H-20R situated at Kukdel, Taluka - Shahada,District - Nandurbar, is free from reservations(Site No.43) imposed on land Gat No.18 underfinal development plan dated 25.07.2006.C] The Hon'ble High Court may be pleased todirect the Respondent No.1 State ofMaharashtra to issue a notification underSection 127 (2) of the MRTP Act, to the effectthat the reservations (Site No.43) imposed onland Gat No.18 under final development plan *3* 6wp3316o24dated 25.07.2006 stood lapsed.”3.Dates and sequence of events in this matter arerelevant and the same are as under:-(a)The Petitioners, along with 11 other familymembers, claim to jointly own Gut No.18 admeasuring 1 Hector20 R at Kukdel, Taluka Shahada, District Nandurbar. The saidland is included within the municipal limits of ShahadaMunicipal Council.(b)On 25.07.2006, the final development plan forShahada city was sanctioned by the State Government and siteNo.43 was reserved for playground. (c)Site No.43 comprises of lands from Gut No.17(part), Gut No.18 (part) and Gut No.19 (part).(d)On 16.12.2021, the Petitioners along with 11 jointowners, issued the purchase notice under Section 127 of theMaharashtra Regional and Town Planning Act, 1966 (for short,“the MRTP Act”). The Municipal Council has admittedlyreceived the notice on 17.12.2021.(e)On 26.07.2022, the Municipal Council addressed aletter to the Petitioners asking for the original copy of the 7/12 *4* 6wp3316o24extract and the measurement map. (f)On 01.08.2022, the Petitioners supplied the certifiedtrue copies of the 7/12 extracts and the copy of the measurementmap. (g)11 joint owners executed a registeredRelinquishment Deed in favour of the present three Petitionerson 03.05.2023 and Mutation Entry Nos.9803 and 9156 wereeffected on 02.12.2023.4.The controversy between the Petitioners and theMunicipal Council falls in a narrow compass. The learnedAdvocate for the Municipal Council relies on the Affidavit inReply dated 15.04.2024, filed through the Chief Officer of theMunicipal Council and submits that the impugned notice is to beconsidered as being effective from 01.08.2022, since thePetitioners have complied with the demand of the MunicipalCouncil for documents, vide letter dated 26.07.2022. As thedocuments were supplied on 01.08.2022, the two years periodwould expire on 31.07.2024 and this petition is prematurelyfiled. *5* 6wp3316o245.The learned Advocate for the Petitioners submitsthat the notice is issued on behalf of the these Petitioners by aLawyer. A detailed narration (4 pages) is set out in the said noticeand it is specifically mentioned that copy of the relevant 7/12extract with regard to the land Survey No. 18 admeasuring 01Hector 20 R, has been enclosed to the said notice.Notwithstanding that the Petitioners tendered the certified copyof 7/12 extract later on, the fact remains that the document toindicate the title of the Petitioners was annexed to the notice. Hefurther submits that the Municipal Council is not disputing thatthe Petitioners are title holders and have an interest in theproperty.6.The learned Advocate for the Municipal Councilrelies upon a reference made to non-furnishing of documents inJaika Vanijya Ltd., Nagpur vs. State of Maharashtra andothers, 2013 (4) Mh.L.J. 161, to support his contention that asthe documents were tendered after the Municipal Councildemanded them, the notice would become effective from the dateof submission of such documents. *6* 6wp3316o247.Section 127 of the MRTP Act reads as under:-“127. Lapsing of reservations(1) If any land reserved, allotted or designated forany purpose specified in any plan under thisAct is not acquired by agreement within tenyears from the date on which a final RegionalPlan, or final Development Plan comes intoforce [or if a declaration under sub-section (2)or (4) of section 126 is not published in theOfficial Gazette within such period, the owneror any person interested in the land may servenotice, alongwith the documents showing histitle or interest in the said land, on thePlanning Authority, the Development Authorityor, as the case may be, the AppropriateAuthority to that effect; and if within twelvemonths] from the date of the service of suchnotice, the land is not acquired or no steps asaforesaid are commenced for its acquisition,the reservation, allotment or designation shallbe deemed to have lapsed, and thereupon, theland shall be deemed to be released from suchreservation, allotment or designation and shallbecome available to the owner for the purposeof development as otherwise, permissible in thecase of adjacent land under the relevant plan.(2) On lapsing of reservation, allocation ordesignation of any land under sub-section (1),the Government shall notify the same, by anorder published in the Official Gazette.”8.It is obvious that an owner or a person interested inthe land has to serve a notice along with the documents showinghis title or interest in the land. We have perused the notice issuedby the Petitioners, dated 16.12.2021, in which it is specifically
Legal Reasoning
*7* 6wp3316o24stated in the last paragraph that the copy of the 7/12 extractalongwith the measurement map, were enclosed for perusal ofthe Municipal Council. After more than eight months, theMunicipal Council has written to the Petitioners that thedocuments are necessary under Section 127(1) and thePetitioners should tender the original 7/12 extract and theoriginal measurement map issued by the Deputy Superintendentof Land Records, Nandurbar. It is in response to thiscommunication that the Petitioners tendered the certified copiesof the documents.9.We are of the view that when the Petitioners havespecifically stated in their notice that the copy of the 7/12 extracthas been enclosed, unless the said statement is denied by theMunicipal Council, it has a presumptive value. The letter of theMunicipal Council dated 26.07.2022, makes a generalobservation that such notice must be accompanied withdocuments. The Chief Officer of the Municipal Council does notstate in the said communication that besides a bare notice, thePetitioners have not enclosed a single document or anydocument. The Chief Officer only demands originals of the 7/12 *8* 6wp3316o24extract and the measurement map. There is no denial that thePetitioners have enclosed the documents. Moreover, in responseto the said letter, the Petitioners have tendered the certifiedcopies of the documents which can only be said to be in additionto the documents enclosed to the notice and which notice hasbeen signed by the Lawyer, who has served it on the MunicipalCouncil.10.In such circumstances, we do not find that theconclusion on facts in Jaika Vanijya Ltd. (supra) , wherein, nota single document was enclosed by the land owners and,therefore, they submitted the documents consequently, wouldadversely affect the present case.11.It is further visible that in the two years from thedate of receipt of the notice on 17.12.2021, the MunicipalCouncil has not taken any steps for acquisition of the said land.Even in the Affidavit in Reply, it is no where stated that theMunicipal Council desires to acquire the land. There are noaverments on this issue. *9* 6wp3316o2412.In view of the above, this Writ Petition is allowedin terms of prayer clauses A, B and C, reproduced above.13.The Municipal Council shall issue a communicationto Respondent No.1/ State of Maharashtra, within 30 (thirty)days from today. The State Government would issue anotification under Section 127(2) within 60 (sixty) daysthereafter. If any Code of Conduct is declared by the ElectionCommission, that would not be an impediment for issuance ofsuch notification.14.Rule is made absolute in the above terms. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)