Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad v. Ghatge
Facts
*1* 910wp4252o24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 4252 OF 20241.KESARBAI SADASHIVRAO LOKHANDE.Died through her L.Rs. Petitioner Nos.2 to 7.2.Vishnu S/o Sadashivrao Lokhande,Age: 66 years, Occ: Retired, Resident of: Plot No. 1058, Sainagar, N-6, CIDCO, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.3.Arun S/o Sadashivrao Lokhande,Through Rushikesh S/o Arun Lokhande, Age: 27 years, Occ: Service, Resident of: Old Bhavsingpura, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.4.Uddhav S/o Sadashivrao Lokhande,Age: 53 years, Occ: Service, Resident of: Plot No. 15, Dwarka Nagari, Near Auditor Society, Harsool T Point, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad. 5.Prahlad S/o Sadashivrao Lokhande,Age: 51 years, Occ: Service, Resident of: House No. 21, Opposite Mhasoba Mandir, Mhasoba Nagar, Harsool,Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.6.Pushpavati D/o Sadashivrao Lokhande@ Pushpavati W/o Atmaram Bidve, Age: 73 years, Occ: Household, Resident of: Sahkar Bank Colony, Near Jamuna Nagar, Jalna, *2* 910wp4252o24Tq. & District Jalna.7.Nirmalabai D/o Sadashivrao Lokhande@ Nirmalabai W/o Vishwas Pimpale, Age: 60 years, Occ: Household, Resident of: at Kalegaon, Post Kumbharzari, Tq. Jafarabad, District Jalna....PETITIONERS-VERSUS-1.The State of MaharashtraThrough the Secretary, Urban Development Department, Mantralaya, Mumbai.2.The Collector,Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.3.The Special Land AcquisitionOfficer, Special Unit, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.4.The Director of Town Planning,Maharashtra State, Pune, Tq. & District Pune – 1.5.The Joint Director of TownPlanning, State of Maharashtra, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad.6.The Deputy Director of TownPlanning, Chhatrapati Sambhaji Nagar Municipal Corporation, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad. *3* 910wp4252o247.The Chhatrapati Sambhaji NagarMunicipal Corporation, Chhatrapati Sambhaji Nagar, Though it's Municipal Commissioner, Municipal Corporation Office, Chhatrapati Sambhaji Nagar, Tq. & District Aurangabad...RESPONDENTS...Shri Mahesh V. Ghatge, Advocate for the Petitioners.Shri R.S. Wani, AGP for Respondent Nos.1 to 5/State.Shri Sambhaji S. Tope, Advocate for Respondent Nos.6 and 7.... CORAM : RAVINDRA V. GHUGE & Y. G. KHOBRAGADE, JJ. DATE :- 28th August, 2024ORAL JUDGMENT ( Per Ravindra V. Ghuge, J. ):- 1.Rule. Rule is made returnable forthwith and heardfinally by the consent of the parties.2.The learned Advocate for the Petitioners tenders apurshis dated 28.08.2024, stating therein that Petitioner No.1Kesarbai has passed away on 24.08.2024. Her legal heirs arePetitioner Nos.2 to 7. As such, leave to amend the description ofPetitioner No.1, to be shown as deceased. *4* 910wp4252o243.The Petitioners have put forth prayer clauses A andB, as under:-“A)The Hon'ble High Court may be pleased toissue a writ or direction or order in the natureof writ and thereby hold and declare that thereservation on the property owned andpossessed by the Petitioners, bearing CitySurvey No. 910/198 and 910/199 admeasuring800.80 Square Meters situated atBhavsingpura, Tq. & District Aurangabad haslapsed in view of the inaction of theRespondents to acquire the property despiteservice of notice under Section 127 of theMaharashtra Regional and Town Panning Act,1966 and issue appropriate order for the saidpurpose;B)The Hon'ble High Court may be pleased todirect the Respondents more particularly theRespondent No. 1 State to forthwith issueGazette notification about lapsing ofreservation on the property owned andpossessed by the Petitioners, bearing CitySurvey No. 910/198 and 910/199 admeasuring800.80 Square Meters situated atBhavsingpura, Tq. & District Aurangabad ascontemplated by Section 127 (2) of theMaharashtra Regional and Town Planning Act,1966 and issue appropriate order for the saidpurpose;”4.With the assistance of the learned Advocates for therespective parties, we have perused the petition paper book.5.Dates and sequence of events, as they emerge from
Legal Reasoning
*5* 910wp4252o24the record, are undisputed. For ready reference, we summarizethe dates and events, as under:-(a)Respondent No.1/ State of Maharashtra approvedthe Development Plan of the then Aurangabad Municipality in1975 (exact date is not set out).(b)The revised Development Plan for the AurangabadMunicipal Corporation was sanctioned, on 17.08.2002.(c)The Petitioners’ property bearing City SurveyNos.910/198 and 910/199 admeasuring 800.80 square meters atBhavsingpura, Taluka and District Aurangabad, was reserved fora garden and road.(d)On 30.06.2021, the Petitioner issued the purchasenotice under Section 127 of the Maharashtra Regional and TownPlanning Act, 1966 (for short, ‘the MRTP Act’).(e)On 07.03.2024, one more revised plan was preparedby the Municipal Corporation by changing the earlierdevelopment plan from garden and road, to a children’s park.6.Having considered the submissions of the learnedAdvocates for the respective sides, the view taken by theHonourable Supreme Court in Prafulla C. Dave and others vs. *6* 910wp4252o24Municipal Commissioner and others, 2015 (11) SCC 90,would be squarely applicable. It has been concluded in paragraphNos.18 to 23, in Prafulla Dave (supra), as under:-“18.On behalf of the Appellants it is contended that theperiod of ten years Under Section 126 of the Acthas to be reckoned from the date of coming intoforce of the initial final development plan and notthe revised development plan made Under Section38 of the Act. Any other view, according to thelearned Counsel, would amount to a perpetualdeprivation of the owner of land which, at the sametime is also not being put to use for the publicpurpose specified in the development plan. Section127 of the Act, it is contended, is a beneficialprovision in so far as the land owner is concernedcalling for a liberal interpretation of its effect.Learned Counsel has also drawn attention to theprovisions of Section 31(5) of the MRTP Act whichcontemplates that in so far as reservation of landfor public purposes specified in Sub-section (b)and (c) of Section 21 is concerned inclusion ofsuch land in the Development Plan should not bemade unless the authority is reasonably confidentof acquiring the land within a period of ten years.Learned Counsel has, therefore, submitted that thelegislative intent was to give the authority underthe Act a maximum of ten years to acquire the landearmarked for a public purpose or at least toinitiate steps for such acquisition failing which thereservation would lapse. Reliance has been placedon a decision of this Court in BhavnagarUniversity v. Palitana Sugar Mill (P) Ltd. and Ors.2003 (2) SCC 111 in support of the contentionsmade by them.19. In reply, Shri Naphade has submitted that thescheme of the Act would suggest that a revisedplan prepared Under Section 38 tantamounts to acomplete development plan contemplated inSections 21 to 30 of the Act. The legislative schemetakes into account that development is a dynamicprocess and cannot be frozen by strict *7* 910wp4252o24prescriptions of time. Once the final developmentplan is revised Under Section 38 the period of tenyears would necessarily run from the date ofcoming into force of such revised plan. Any otherinterpretation, according to the learned Counsel,would render all provisions of the Act dealing withthe revised plan otiose. Shri Naphade has alsoargued that in the event a revised plan UnderSection 38 is sanctioned and brought into force therelevant date for determination of compensationwould stand transposed to the fresh dates of thedeclaration Under Section 6 of the LandAcquisition Act which would ensure payment of afair compensation to the land owner. This is byvirtue of Section 126(4) of the Act and, accordingto Shri Naphade, is how the balance betweenpublic interest and the interest of the land owner ismaintained under the provisions of the Act.20.In so far as the decision in Bhavnagar University(supra) is concerned, Shri Naphade has submittedthat there are certain provisions of the MRTP Actwhich are not embodied in the provisions of theGujarat Act that was considered in BhavnagarUniversity (supra). Specifically it is pointed outthat the provisions similar to Sections 37, 49 and50 of the MRTP Act which provide alternativeescape routes to the land owners are absent in theGujarat Act. It is on the aforesaid broad basis thedecision in Bhavnagar University (supra) has beensought to be distinguished.21. Under Section 127 of the MRTP Act, reservation,allotment or designation of any land for any publicpurpose specified in a development plan is deemedto have lapsed and such land is deemed to bereleased only after notice on the appropriateauthority is served calling upon such authorityeither to acquire the land by agreement or toinitiate proceedings for acquisition of the landeither under the MRTP Act or under the LandAcquisition Act, 1894 and the said authority failsto comply with the demand raised thereunder. Suchnotice can be issued by the owner or any personinterested in the land only if the land is notacquired or provisions for acquisition is not *8* 910wp4252o24initiated within ten years from the date on whichthe final development plan had come into force.After service of notice by the land owner or theperson interested, a mandatory period of sixmonths has to elapse within which time theauthority can still initiate the necessary action.Section 127 of the MRTP Act or any otherprovision of the said Act does not provide forautomatic lapsing of the acquisition, reservation ordesignation of the land included in anydevelopment plan on the expiry of ten years. Onthe contrary upon expiry of the said period of tenyears, the land owner or the person interested ismandated by the statute to take certain positivesteps i.e. to issue/serve a notice and there mustoccur a corresponding failure on the part of theauthority to take requisite steps as demandedtherein in order to bring into effect theconsequences contemplated by Section 127. Whatwould happen in a situation where the land owneror the person interested remains silent and in themeantime a revised plan Under Section 38 comesinto effect is not very difficult to fathom. Obviously,the period of ten years Under Section 127 has toget a fresh lease of life of another ten years. Todeny such a result would amount to putting a halton the operation of Section 38 and rendering theentire of the provisions with regard to preparationand publication of the revised plan otiose andnugatory. To hold that the inactivity on the part ofthe authority i.e. failure to acquire the land for tenyears would automatically have the effect of thereservation etc. lapsing would be contrary to theclearly evident legislative intent. In this regard itcannot be overlooked that Under Section 38 arevised plan is to be prepared on the expiry of aperiod of 20 years from date of coming into forceof the approved plan Under Section 31 whereasSection 127 contemplates a period of 10 years witheffect from the same date for the consequencesprovided for therein to take effect. The statute,therefore, contemplates the continuance of areservation made for a public purpose in a finaldevelopment plan beyond a period of ten years. *9* 910wp4252o24Such continuance would get interdicted only uponthe happening of the events contemplated bySection 127 i.e. giving/service of notice by the landowner to the authority to acquire the land and thefailure of the authority to so act. It is, therefore,clear that the lapsing of the reservation, allotmentor designation Under Section 127 can happen onlyon the happening of the contingencies mentionedin the said section. If the land owner or the personinterested himself remains inactive, the provisionsof the Act dealing with the preparation of revisedplan Under Section 38 will have full play. Actionon the part of the land owner or the personinterested as required Under Section 127 must beanterior in point of time to the preparation of therevised plan. Delayed action on the part of the landowner, that is, after the revised plan has beenfinalized and published will not invalidate thereservation, allotment or designation that mayhave been made or continued in the revised plan.This, according to us, would be the correct positionin law which has, in fact, been clarified inMunicipal Corporation of Greater Bombay v. Dr.Hakimwadi Tenants' Association and Ors. 1988Supp. SCC 55 in the following terms:“If there is no such notice by the owner orany person, there is no question of the reservation,allotment or designation of the land under adevelopment plan of having lapsed. It a fortiorifollows that in the absence of a valid notice UnderSection 127, there is no question of the landbecoming available to the owner for the purpose ofdevelopment or otherwise.”22. In fact the views expressed in BhavnagarUniversity (supra) in para 34 is to the same effect:“34.…. The relevant provisions of the Actare absolutely clear, unambiguous and implicit. Aplain meaning of the said provisions, in ourconsidered view, would lead to only oneconclusion, namely, that in the event a notice isissued by the owner of the land or other personinterested therein asking the authority to acquirethe land upon expiry of the period specified therein
Decision
*10* 910wp4252o24viz. ten years from the date of issuance of finaldevelopment plan and in the event pursuant to orin furtherance thereof no action for acquisitionthereof is taken, the designation shall lapse.”23. The facts of the present case makes it plainly clearthat the notice Under Section 127 by theAppellants was issued only two years after the finalrevised plan Under Section 38 had come intooperation. The rejection of the Appellants' pleabefore the appellate authority Under Section 47 ofthe Act as well as the rejection of the writ petitionfiled by the Appellants before the Bombay HighCourt was, therefore, fully justified. Consequently,we find no reason to interfere with the impugnedorder dated 20th September, 2007 passed by theHigh Court of Bombay. Accordingly, the appeal isdismissed. However, in the facts and circumstancesof the case, we make no order as to costs.”7.The Municipal Corporation has relied upon the viewtaken by this Court at the Nagpur Bench, vide judgment dated04.05.2023 in Writ Petition No.1700/2019, filed by MandakiniRuprao Khangar and others vs. The State of Maharashtraand others. In Mandakini (supra), though the development planwas published on 20.09.1973, no steps were taken for quitesometime. Another notification was issued on 31.03.2012 and therevised development plan was published under Section 38. Sinceno steps were taken for acquisition of the land, the Petitionerissued the purchase notice under Section 127 on 30.12.2015,which is after three years after the revised development plan *11* 910wp4252o24dated 31.03.2012 was published. Placing reliance upon the lawenunciated by the Honourable Supreme Court in Prafulla Dave(supra), the Nagpur Bench dismissed the petition.8.However, in the case in our hands, the purchasenotice was issued after 19 years of the development plan on30.06.2021. Two years lapsed after the purchase notice. Therevised plan was published on 07.03.2024, which is after thepurchase notice was issued. Hence, in the light of the law laiddown in Prafulla Dave (supra), this petition deserves to beallowed.9.In view of the above, this Writ Petition is allowedin terms of prayer clauses A and B.10.The Municipal Corporation shall, within 45 daysfrom today, send a communication along with this order, toRespondent No.1, stating that the reservation has lapsed.Thereafter, Respondent No.1 shall issue a notification underSection 127(2) of the MRTP Act, within 60 days. *12* 910wp4252o2411.If the Model Code of Conduct is introduced, thesame shall not be an impediment in implementing this order.12.Rule is made absolute in the above terms. kps (Y. G. KHOBRAGADE, J.) (RAVINDRA V. GHUGE, J.)