High Court
Legal Reasoning
10-sr55.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.9496 OF 2024Bhagwan Bhika Paradhi,Age : 66 years, occ. Agri.,r/o. Paradhi Wada, Amalner Road,Parola Road, Dist. Jalgaon..PetitionerVs.1. The State of Maharashtra2. The Director of Town Planning Dept.,Maharashtra State, Pune3.Town Planning Department,Jalgaon4.Parola Municipal Council, Parola,Through its Chief Officer..Respondents----Mr.D.S.Bagul, Advocate for petitionerMs.P.J.Bharad, AGP for respondent nos.1 and 2Mr.N.R.Dayama, Advocate for respondent no.4---- CORAM : R.G.AVACHAT AND NEERAJ P. DHOTE, JJ. DATE : AUGUST 18, 2025PER COURT :- Heard.2.This petition under Article 226 of the Constitution of Indiahas been filed for the following main relief:- 210-sr55"(B)The Hon’ble High Court may bepleased to issue writ of mandamus or anyother appropriate writ, order or direction inthe nature of writ and thereby declare thatthe reservation of Play Ground videReservation Site No. 52 (old) 23 (New) in thesanctioned development plan of ParolaMunicipal Council on the land of thepetitioner i.e. Gat No. 54 admeasuringtentatively 0.22 R (writ property) has beenlapsed land in pursuant to purchase noticedated 18.01.2003 and the land is free fromthe reservation and available to the petitionerfor utilization as per the use permissible tothe adjacent and the respondent authorities bedirected to issue appropriate notification inrespect of deletion of Gat. No. 54 fromreservation.” 3.The land admeasuring 0.22 R has been reserved in thefinal development plan dated 02.12.1990 and the reviseddevelopment plan dated 12.10.2017. The land has been reserved forthe purpose of play ground being, identified as site no.52 in thelatest development plan.4.Since respondent no.4 – Parola Municipal Council(planning authority) to have not taken steps for acquisition of theland under reservation, the petitioner issued purchase notice underSection 127 of the Maharashtra Regional and Town Planning Act, 310-sr551966 (“MRTP Act”, for short), on 18.01.2003. The notice wasreceived by respondent no.4. Still, it did not take effective stepswithin the period of six months, from the date of receipt of suchnotice. The petitioner has, therefore, approached this Court.5.Learned counsel for respondent no.4 would submit thatthe purchase notice was issued by only one of the co-owners, i.e.petitioner herein. Two others have not preferred this petition. Unlessand until the land belonging to the petitioner herein is identified, thesame cannot be dereserved. He would further submit that there wasrevision of the final development plan in the year 2017. Post suchrevision, the petitioner has not issued any notice under Section 127of M.R.T.P. Act. He would further submit that the earlier notice issuedway back in 2003 shall be deemed to have been waived, since thepetition has been filed 21 years thereafter. On all these grounds,dismissal of the Writ Petition has been urged for.6.We have considered the submissions advanced. Perusedthe documents on record. It is not in dispute that the petitionerherein is co-owner of the land under reservation. Admittedly, theland was reserved for play ground way back in 1990. The petitionerissued purchase notice dated 18.01.2003. Same was received by
Decision
410-sr55respondent no.4. In spite of receipt of the said notice, admittedly, noeffective steps have been taken for acquisition of the land. It is truethat the petitioner approached this court 21 years after he issued thenotice. The fact, however, remains that in view of Section 127 ofM.R.T.P. Act, the deeming fiction regarding dereservation has to bemade. In the case in hand, the petitioner, who is one of the co-owners of the land, necessarily, has interest in the land underreservation. The phraseology of Section 127 of M.R.T.P. Act indicatesthat it is the person, who is owner of the land under reservation orhaving interest therein, can issue a notice under Section 127 ofM.R.T.P. Act. Since notice has been issued by the petitioner herein,respondent no.4 could not be heard to say that other co-ownersought to have joined the petitioners in issuance of the notice andeven in filing the Writ Petition. The other two co-owners are noneother than the family members. It is not that the other brothers areinterested to see that the land remains under reservation and isacquired for the same. It is true that in 2017, there was revision ofthe development plan. The writ land again came to be placed underreservation for the vary purpose. True, thereafter, the petitioner hasissued no notice. 510-sr557.For better appreciation we need to advert to Section 127of M.R.T.P. Act, which reads thus:-127. Lapsing of reservations.(1) If any land reserved, allotted or designated for anypurpose specified in any plan under this Act is not acquiredby agreement within ten years from the date on which afinal Regional plan, or final Development plan comes intoforce or, if a declaration under sub-section (2) or (4) ofsection 126 is not published in the Official Gazette withinsuch period, the owner or any person interested in the landmay serve notice, alongwith the documents showing his titleor interest in the said land, on the Planning Authority, theDevelopment Authority or, as the case may be, theAppropriate Authority to that effect; and if within twentyfour months from the date of the service of such notice, theland is not acquired or no steps as aforesaid are commencedfor its acquisition, the reservation, allotment or designationshall be deemed to have lapsed, and thereupon the land shallbe deemed to be released from such reservation, allotmentor designation and shall become available to the owner forthe purpose of development as otherwise, permissible in thecase of adjacent land under the relevant plan.(2) On lapsing of reservation, allocation or designation ofany land under sub-section (1), the Government shall notifythe same, by an order published in the Official Gazette.8.Close reading of the aforesaid provision would indicatethat the owner of the land under reservation or a person havinginterest therein, may issue a notice requiring the planning authorityto acquire the land. If the planning authority fails to take appropriatesteps within the time frame, in the present case within six months,by virtue of deeming fiction, the land stands dereserved. 610-sr559.The petitioner herein issued the notice under Section 127of M.R.T.P. Act way back in 2003. The petitioner then submitted anapplication for development of the land. Since it was turned down,the petitioner preferred an appeal against the said order. In the year2017, the development plan was revised maintaining the veryreservation. Thereafter, the petitioner, admittedly, did not issuenotice under Section 127 of the M.R.T.P. Act. The issue, however, isno longer res integra in view of paragraph 5 of the judgment andorder dated 21.08.2024, passed in Writ Petition No.6238 of 2024(Vasantrao Digambarrao Salunke and anr. Vs. The State ofMaharashtra and ors). The period of 10 years is to be reckoned fromthe approval of the first development plan and not its revision fromtime to time. For better appreciation, we reproduce paragraph 5 ofthe said order:- 5.Keeping in view the above dates and events which arenot contradicted, the law laid down by the Hon’ble SupremeCourt in Prafulla C. Dave and others Vs. MunicipalCommissioner and others, (2015) 11 SCC 90, would squarelyapply. The Hon’ble Supreme Court has concluded in paragraphNos. 18 to 23, in similar circumstances, as under:- “18. On behalf of the appellants it is contendedthat the period of ten years under Section126 of the Act has to be reckoned from thedate of coming into force of the initial finaldevelopment plan and not the reviseddevelopment plan made under Section 38of the Act. Any other view, according to thelearned counsel, would amount to a 710-sr55perpetual deprivation of the owner of landwhich, at the same time is also not beingput to use for the public purpose specifiedin the development plan. Section 127 of theAct, it is contended, is a beneficial provisionin so far as the land owner is concernedcalling for a liberal interpretation of itseffect. Learned counsel has also drawnattention to the provisions of Section 31(5)of the MRTP Act which contemplates that inso far as reservation of land for publicpurposes specified in sub-section (b) and(c) of Section 22 is concerned inclusion ofsuch land in the Development Plan shouldnot be made unless the authority isreasonably confident of acquiring the landwithin a period of ten years. Learnedcounsel has, therefore, submitted that thelegislative intent was to give the authorityunder the Act a maximum of ten years toacquire the land earmarked for a publicpurpose or at least to initiate steps for suchacquisition failing which the reservationwould lapse. Reliance has been placed on adecision of this Court in BhavnagarUniversity v. Palitana Sugar Mill (P) Ltd. insupport of the contentions made 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 prescriptionsof time. Once the final development plan is revisedunder Section 38 the period of ten years wouldnecessarily run from the date of coming into forceof such revised plan. Any other interpretation,according to the learned counsel, would render allprovisions of the Act dealing with the revised planotiose. Shri Naphade has also argued that in theevent a revised plan under Section 38 is sanctionedand brought into force the relevant date fordetermination of compensation would standtransposed to the fresh dates of the declaration 810-sr55under Section 6 of the Land Acquisition Act whichwould ensure payment of a fair compensation tothe land owner. This is by virtue of Section 126(4)of the Act and, according to Shri Naphade, is howthe balance between public interest and theinterest of the land owner is maintained under theprovisions 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 fails tocomply 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 notinitiated 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 other provisionof the said Act does not provide for automaticlapsing 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 ten 910-sr55years, 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.Such 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. Action onthe part of the land owner or the person interested 1010-sr55as required under Section 127 must be anterior inpoint of time to the preparation of the revised plan.Delayed action on the part of the land owner, thatis, after the revised plan has been finalized andpublished will not invalidate the reservation,allotment or designation that may have been madeor continued in the revised plan. This, according tous, would be the correct position in law which has,in fact, been clarified in Municipal Corporation ofGreater Bombay vs. Dr. Hakimwadi Tenants'Association & Ors.[2] 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 Bhavnagar University(supra) in para 34 is to the same effect: "34.….. The relevant provisionsof the Act are absolutely clear, unambiguous andimplicit. A plain meaning of the said provisions, inour considered 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 thereinviz. 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 the appellantswas issued only two years after the final revisedplan under Section 38 had come into operation.The rejection of the appellants' plea before theappellate authority under Section 47 of the Act aswell as the rejection of the writ petition filed by theappellants before the Bombay High Court was,therefore, fully justified. Consequently, we find no 1110-sr55reason to interfere with the impugned order dated20th September, 2007 passed by the High Court ofBombay. Accordingly, the appeal is dismissed.However, in the facts and circumstances of thecase, we make no order as to costs.”10.In view of the above and the fact that the petitionerbeing one of the co-owners of the writ land, issued notice underSection 127 of the M.R.T.P. Act and on receipt of the said notice,respondent no.4 – planning authority, although submitted a proposalfor acquisition, did not deposit any farthing with the Collectortowards compensation to be paid to the land owners, it has to beobserved that respondent no.4 did not take any effective steps foracquisition of the land under reservation within the time frame of sixmonths from the date of receipt of the notice. By virtue of thedeeming fiction under Section 127 of M.R.T.P. Act, the land, therefore,stands dereserved. The petition, therefore, deserves to be allowed.11.In the result, the petition is allowed in terms of prayerclause (B). Respondent no.1 shall issue necessary notificationindicating the land to have been dereserved within a period of sixmonths from the date of this order.[NEERAJ P. DHOTE, J.][R.G. AVACHAT, J.]KBP