High Court · 2025
Legal Reasoning
928.WP-12085-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWrit Petition No. 12085 Of 20221.Premabai @ Premlata Chandmal AgrawalSince Deceased through Legal RepresentativeRupesh Chandmal Agrawal Age : 49 years, Occupation-Business,R/o. Row House No.8, Happy Home Phase-II,Gut No.33, Anand Vihar, Near Wood Ridge,High School, Itkheda, Paithan Road,Aurangabad-431005.2.Mangalabai @ Mangala Chandmal Agrawal,Age : 72 years, Occupation-Household,R/o. Row House No.8, Happy Home Phase-II,Gut No.33, Anand Vihar, Near Wood Ridge,High School, Itkheda, Paithan Road,Aurangabad-431005. .. Petitioners Versus1.The State of Maharashtra,Through Principal Secretary,Urban Development Department,Mantralaya, Mumbai-32.2.The Director of Town PlanningCentral Building, Pune – I.3.The Joint Director of Town Planning,Aurangabad.4.The Aurangabad Municipal Corporation,Aurangabad, Through Municipal Commissioner,Aurangabad.5.The Municipal Commissioner,Aurangabad Municipal Corporation,Aurangabad.[1]
Legal Reasoning
928.WP-12085-2022.odt6.The Administrator,Aurangabad Municipal Corporation,Aurangabad.7.The Assistant Director of Town Planning,Aurangabad Municipal Corporation,Aurangabad.8.The Aurangabad Municipal CorporationThrough Commissioner,Aurangabad.9.The Town Planner,Aurangabad Municipal Corporation,Aurangabad. .. Respondents****** Mr. Ameya N. Sabnis a/w Mr. Pranav Dhakne, Advocate for the Petitioners.* Mr. S.K. Tambe, Addl.GP for Respondent Nos. 1 to 3/State.* Mr. S.S. Tope, Advocate for Respondent Nos. 4 to 9.***** CORAM : S.G. MEHARE AND SHAILESH P. BRAHME, JJ.. DATE : 15th JANUARY 2025 ORAL JUDGMENT :.Rule. Rule is made returnable forthwith. Heard both sides.2.The Petitioners are invoking jurisdiction of this Court underArticle 226 of the Constitution of India for the directions to issuenotification for releasing the property in question fromreservation. [2] 928.WP-12085-2022.odt3.Petitioners are the owners of the land Gut No.33 situated atItkheda, Paithan Road, Chhatrapati Sambhajinagar. Part of theland admeasuring 2331.44 Sq. Mtrs. was reserved in thedevelopment plan dated 15.10.1991 under reservation site no.11for the purpose of Primary School. The Respondents/PlanningAuthority did not take effective steps as contemplated by Section126 of the Maharashtra Regional and Town Planning Act, 1966(hereinafter referred to as ‘Act’) within ten years from the date ofcommencement of development plan. The Petitioners wereconstrained to issue notice under Section 127 of the Act on05.10.2020. In response to the notice, Respondent No.3 calledupon the Petitioners to furnish certain documents vide letterdated 12.11.2020. The Petitioners tendered explanation to theRespondents vide letter dated 11.01.2021. The Petitionersrefused to accept the Transferable Development Right (TDR) byletter dated 29.06.2021. The lapsing of the reservation and thereleasing the land was re-agitated by the Petitioners. 4.Learned Counsel for the Petitioners Mr. Ameya Sabnissubmits that the Respondents received purchase notice. Howeverno steps were taken within ten years from the commencement ofthe development plan and thereafter within 24 months from thereceipt of the purchase notice. Therefore, matter is squarelycovered by Section 127 of the Act. He would further submit thatwhat is contemplated by Section 127 is the document showingtitle and 7/12 extract which was furnished alongwith originalnotice is the due compliance. To buttress the submission,reliance is placed on ratio laid down in the matter of Abdul Gani[3] 928.WP-12085-2022.odtN. Wadwan Vs. State of Maharashtra and Others, 2018(4)Mh.L.J. 454. 5.It is submitted that offering of TDR cannot be the steps tomitigate rigor of Section 127. Reliance is placed on judgment inthe matter of Swami Samarth Builders and Developers, throughits authorized partner Vijaykumar Narayandas Harkut Vs. Stateof Maharashtra, through its Secretary and Others, 2024 SCCOnLine Bom 2826. 6.Per contra, learned Counsel Mr. Sambhaji Tope submits that7/12 extract cannot be a document of title and in the absence ofany document of title, the purchase notice is inoperative. Hewould further submit that 7/12 extract is very vague and doesnot reflect the extend of ownership and the four boundaries.There is no identification of the subject matter. He would placereliance on the judgments of P. Kishore Kumar Vs. Vittal K.Patkar, 2023 LiveLaw (SC) 999 and Mariyam Begum Abdul JalilKhan Vs. State of Maharashtra, 2018 (3) AIR Bom R 596. 7.We have considered the rival submissions of the parties. 8.The Respondents did not challenge the title of thepetitioners. The correspondence between the parties and theaffidavit-in-reply do not disclose any reservation for the title ofthe Petitioners. The purchase notice dated 05.10.2020 refers tofurnishing of 7/12 extract alongwith it. The Petitioners were[4] 928.WP-12085-2022.odtcalled upon to furnish 7/12 extract, measurement map,measurement sheet and title search report. By letter dated11.01.2021, it was reported by the Petitioners that it was notmandatory to furnish those documents.9.As per Section 127, owners are expected to serve withpurchase notice alongwith document showing their title orinterest in the land. A single document showing title of the landwould be sufficient to comply with Section 127. In this regard,reliance is placed on the judgment in the matter of Abdul Gani N.Wadwan (supra). We reiterate the relevant paragraph : “6. We have considered the submissions. The requirement of sub-section (1) of section 127 is that owner or any person interestedin the land may serve a notice along with documents showing histitle or interest in the reserved land. In the present case, thirdRespondent is not disputing that the Petitioners are the owners.Their contention is that the lands are encumbered by a charge ofa co-operative bank. Even if the charge is recorded, thePetitioners do not cease to be the owners or the personsinterested. The requirement of sub-section (1) of section 127 isnot of producing documents of title. The requirement is ofproducing documents showing title. Entries in the 7/12 extractconstitute sufficient material to come to the conclusion that thePetitioners are certainly persons interested in the land, if not theowners thereof.” 10.Learned Counsel Mr. Tope adverted our attention toparagraph nos. 27, 28, 33 and 39 of judgment in the matter ofMariyam Begum Abdul Jalil Khan (supra). The judgment of thecoordinate bench in the matter of Abdul Gani (supra) wasdelivered on 27.02.2018. The judgment in the matter of MariyamBegum Abdul Jalil Khan (supra) was delivered on 20.03.2018.[5] 928.WP-12085-2022.odtEarlier judgment was not pointed out to the coordinate bench.We prefer to follow earlier judgment of Abdul Gani (supra). Thejudgment of Mariyam Begum Abdul Jalil Khan (supra) isdistinguishable on facts. The same would be of no assistance tothe Respondents. 11.Learned Counsel Mr. Tope refers to judgment of P. KishoreKumar (supra) to buttress the submission that revenue record isnot the document of title. What is mandated by Section 127 ofthe Act is document showing title and not the document of title.Undisputedly, 7/12 extract is not document of title but it iscertainly document showing title. Therefore the objection of theRespondent/Corporation with reference to 7/12 extract isoverruled. 12.The Petitioners need not produce any other document whenalready 7/12 extract was furnished. It is no more res-integra thatoffer of TDR is not a compliance of Section 126 of the Act. Thelarger bench has already taken this view in the matter of ShreeVinayak Builders and Developers, Nagpur Vs. State ofMaharashtra, 2022(4) Mh.L.J. 739. The same view is reiterated inthe matter of Swami Samarth Builders and Developers (supra)by the coordinate bench. We, therefore, cannot accept thesubmission of the Respondent that TDR was offered to thePetitioners and it was the acquisition of the reserved land. 13.Final development plan for additional area came into force[6]
Decision
928.WP-12085-2022.odtfrom 19.11.1991. No steps were taken for the acquisition of theland in question within ten years. After receiving the purchasenotice, no such steps were taken within 24 months. There issufficient compliance of Section 127 of the Act. Petitioners areentitled to the relief of lapsing of reservation.14.For the reasons assigned above, we allow the Writ Petitionin following terms :(i)Reservation No.11 over land Gut No.33 situated at Itkheda,Chhatrapati Sambhajinagar shall stand lapsed and subject matter shall stand de-reserved. (ii)The Respondent No.1 shall issue notification under Section 127(2) expeditiously. (iii)Rule is made absolute in above terms. [ SHAILESH P. BRAHME ] [ S.G. MEHARE ] JUDGE JUDGEnajeeb..[7]