High Court
Legal Reasoning
1 1032.WP-5635-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO. 5635 OF 2024RAJUSING BHARATSINGH RAJPUT AND ANOTHERVERSUSTHE STATE OF MAHARASHTRA THROUGH THE SECRETARY AND OTHERS... Advocate for Petitioners : Mr. Palodkar Devdatt P.AGP for Respondents/State : Mr. D.R. Korade Advocate for Respondent No.5 : Mrs. Barhate Ranjita R.... CORAM : S. G. MEHARE AND SHAILESH P. BRAHME, JJ. DATE : 27th FEBRUARY 2025PER COURT :.Heard both the sides finally at the admission stage.2.The Petitioners are the owners of land gut no.303 situatedat Gangapur District Chhatrapati Sambhaji Nagar and they are inpossession of the same. Their land was reserved under thedevelopment plan for Gangapur Municipal Council dated15.06.1992. As no steps of acquisition of the land in question weretaken, Petitioners issued purchase notice under Section 127 of theMaharashtra Regional and Town Planning Act, 1966 on 30.03.2021.After receiving the notice, Respondents did not take effective stepswithin 24 months. The Petitioners attempted to get permission forthe development of the land in question which was also refused bythe Planning Authority. Therefore they have filed present petitionseeking declaration of de-reservation of reservation and notificationunder Section 127(2) of the Act.
Legal Reasoning
2 1032.WP-5635-2024.doc 3.Learned Counsel for the Petitioners Mr. Palodkar submitsthat for more than ten years, the land of the Petitioners which wasreserved for shopping center was not acquired by therespondent/Planning Authority. After serving of the purchase noticealso, no steps were taken. Therefore, their case is squarely covered bySection 127 and they are entitled to the notification for de-reservation. He would further submit that Revised Development Planfor the Gangapur Municipal Council was published on 10.03.2016. Itwas sanctioned by the State Government on 06.11.2023. In theRevised Plan also, the subject matter was reserved for the identicalpurpose. Only the number was changed. Therefore, the sanction ofRevised Development Plan would not be an impediment for grantingrelief to the Petitioners. He would rely on the judgments of PrafullaC. Dave and Others Vs. Municipal Commissioner and Others, (2015)11 SCC 90 and Santu Sukhdeo Jaibhave and Others Vs. NashikMunicipal Corporation and Others, 2022 SCC OnLine Bom 5273.4.Learned Counsel Mr. appearing for Respondent No.5 wouldvehemently oppose the petition and the submission of the Petitioners.She would submit that the purchase notice is bad in law. It ispremature notice. The Revised Plan was sanctioned on 06.11.2023.Therefore, the purchase notice, would be of no help to thePetitioners. It is further submitted that there is change incircumstances. Initially the land in question was reserved byReservation Site No.12 and in the Revised Plan, it is numbered asReservation Site No.15. 3 1032.WP-5635-2024.doc 5.Learned AGP appearing for Respondent Nos. 1 to 4 alsorepels the submission of the Petitioners. He would make thesubmission to adopt the learned Counsel for Respondent No.5. Hehas adverted to our attention to the paragraph nos. 7 to 9 of theaffidavit-in-reply.6.We have considered the rival submission of the parties. Therelevant facts and dates are not disputed. Initially the DevelopmentPlan for Gangapur Municipal Council was sanctioned in 21.03.1992.The land belonging to the Petitioners was reserved for the purpose ofshopping center. Thereafter on 10.03.2016, the Revised DraftDevelopment Plan was published. It was sanctioned by the StateGovernment on 06.11.2023. In the interregnum period, Petitionersissued notice under Section 127 on 30.03.2021. There is no disputethat the notice was received by the Respondents. No steps were takenfor more than ten years from 21.03.1992 as well as within period of24 months from 30.03.2023.7.It is pertinent to note that the purpose of reservation in theoriginal Development Plan sanctioned 21.03.1992 and later onRevised Development Plan sanctioned on 06.11.2023 is identical i.e.shopping center. Only site number changed which is inconsequentialto decide the present controversy. When the purchase notice wasissued, only Revised Draft Development Plan was in existence. WhenRevised Development Plant was sanctioned on 06.11.2023, thestatutory period of 24 months has already expired on 30.03.2023. 4 1032.WP-5635-2024.doc Our attention is invited to law laid down by the coordinate bench inthe matter of Sukhdeo (supra), following are the relevant paragraphs:25.Question that arises for consideration of this Court is whether thepurchase notice issued by the petitioners subsequent to the date of the DraftRevised Development Plan for the city of Nashik would be a valid notice ornot or the petitioners were required to again wait for expiry of 10 years fromthe date of the Draft Revised Development Plan for the city of Nashik andthen issue a fresh notice and then if no steps would be taken by therespondents within the time prescribed, the reservation in respect of the writland would lapse at that stage or not.26.It is not in dispute that the writ land was shown for a public purposein the development plan for Nashik prepared under Section 26 of the MRTPAct which came into effect on 16th November 1993 and came to be reservedfor "Housing for Dishoused." The respondents did not take any steps to acquirethe said plot for a period more than 10 years as contemplated under theprovisions of the MRTP Act. The petitioners had admittedly issued a purchasenotice on 14 th July 2015. It is also not in dispute that in the Revised DraftDevelopment Plan published in the Government Gazette on 4th June, 2015, thewrit land once again is shown for public purpose. The purchase notice wasissued however, on 14th July 2015.27.It is not in dispute that the said Draft Revised Development Plan wasimplemented by issuing Notification dated 9th January 2017 in respect of thewrit land and was shown under the reservation No. 205 for the purpose of'Public Housing'.28.The respondents have not disputed that purchase notice was issued bythe respondents on 14 th July 2015 i.e. prior to the notification issued on 9thJanuary, 2017 whereby the Draft Revised Development Plan was implemented.We are not inclined to accept the submission made by the learned counsel forthe respondents that a purchase notice under Section 127 of the MRTP Actcould not have been issued after the Draft Revised Development Plan waspublished though admittedly not sanctioned. In our view, the Draft RevisedDevelopment Plan cannot be elevated to the status of a final sanctioned planunder Section 31 of the MRTP Act. 8.In view of the pronouncement of the coordinate bench, wefind that the Petitioners have made out a case and the sanction ofRevised Development Plan would not be an impediment. Its matter of 5 1032.WP-5635-2024.doc record that from 1992 till 2021, there was no steps taken by theRespondents and the Petitioners were unable to use land in question.The owners of the land cannot be deprived of the rights to enjoy theland for the indefinite period. 9.The submissions of the Respondents in respect of change inthe site of the reservation of the suit land has no substance. We findthat the purchase notice issued by the Petitioners is valid. It is not outof context to mention that Respondent No.5 in paragraph no.6 hascandidly mentioned that the Municipal Council is unable to acquirethe property due to precarious financial conditions. If that is the casethen we have no iota of doubt that the petitioners are entitled to gettheir property de-reserved by way of notification under Section127(2) of the Act. We pass following order :ORDER(i)Writ Petition is allowed in terms of prayer clause ‘B’.(ii)Respondent Nos. 1 and 2 shall issue notification under Section 127(2) of the MRTP Act within three months from today. [ SHAILESH P. BRAHME, J.] [ S. G. MEHARE, J.]NAJEEB..