Writ Petition No.4310 of 2008

29th January, 2009

Petitioner Counsel: Mr. PRATAP PATIL
Respondent Counsel: Ms. M. P. THAKUR

Cases Cited:
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd., (2003)2 SCC 111 [Para 6,7]
Baburao Salokhe Vs. Kolhapur Municipal Corporation, 2003(3) ALL MR 433 [Para 7]
Kishor Gopalrao Bapat Vs. State of Maharashtra, 2006(1) ALL MR 232 [Para 8,9]
Dr. Kishor s/o. Siddheshwar Wadotkar Vs. Director of Town Planning, 2007(4) ALL MR 258 [Para 9]

JUDGMENT

Smt. RANJANA DESAI, J.:- Rule. Respondents waive service. By consent of the parties, taken up for final hearing.

2. The petitioners claim to be the owners of land bearing No.197/1 situate at Kupwad City, District Sangli (for convenience, "the said plot"). In this petition, the petitioners have prayed for declaration that the reservation shown on the said plot vide Reservation No.328 in the sanctioned development plan, published in the year 1985 in respect of Kupwad City has lapsed and that the petitioners are entitled to develop the portion of the said plot. The petitioners have further prayed that respondent 3 i.e. the Town Planner, Sangli-Miraj-Kupwad City Municipal Corporation, be directed to sanction the development/building plan submitted by the petitioners on 9/1/2008. Affidavit in reply has been filed by Sadhana Pradeep Naik, Deputy Director of Town Planning, Pune Division, Pune and also by Shrirang B. Patil, Deputy Commissioner, Miraj Division, Sangli-Miraj-Kupwad Municipal Corporation.

3. It is necessary to state the facts in brief as are evident from the affidavit of Sadhana P. Naik, Deputy Director of Town Planning, Pune Division, Pune and affidavit of Shrirang B. Patil, Deputy Commissioner, Miraj Division, Sangli-Miraj-Kupwad Municipal Corporation. Regional Plan for Sangli-Miraj Region has been sanctioned by the Government of Maharashtra vide its resolution dated 15/3/1985. In the layout plan, land Survey No.197 (part) of Kupwad was reserved for playground along with other lands. The Government of Maharashtra vide resolution dated 9/2/1998 merged the areas of Sangli, Miraj and Kupwad Municipal Councils and established Sangli, Miraj and Kupwad City Municipal Corporation, respondent 2 herein. Respondent 2 published revised draft development plan under section 26(1) of the Maharashtra Regional & Town Planning Act, 1966 (for short, "the MRTP Act") for the entire area falling in its jurisdiction on 4/3/2005. In the said published revised draft development plan, land Survey No.197 (part) of Kupwad was proposed to be reserved for playground along with other lands.

4. In his affidavit, Shrirang B. Patil, Deputy Commissioner Miraj Division - respondent 2, has stated that on 13/8/2007 the petitioner addressed a purchase notice through his advocate under section 127 of the MRTP Act to respondent 2. Under section 127 of the MRTP Act, if any land reserved for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final regional Plan, or final Development Plan comes into force or if proceedings for the acquisition of such land under this Act or under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation shall be deemed to have lapsed, and thereupon, the land shall be deemed to be released from such reservation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.

5. In his affidavit, Mr. Patil has stated that since in the revised development plan, Survey No.197/1 is shown as reserved for playground, the reservation has still continued. The question is whether if the land is released from reservation as a consequence of purchase notice under Section 127 of the MRTP Act, the Planning Authority is entitled to again reserve it in the revised development plan for public purpose and contend that the reservation has continued and deny the owner the right which had accrued to him to develop it.

6. In Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors., (2003)2 SCC 111, the Supreme Court was concerned with the Gujarat Town Planning and Urban Development Act, 1976. Section 20(2) thereof contains a provision for purchase notice. It states that the area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose may acquire it either by agreement or under the provisions of the Land Acquisition Act, 1894. Sub-section (2) states that if the land is not acquired within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894 are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice, the land is not acquired or no steps are commenced for it's acquisition, the designation of the land shall be deemed to have lapsed. Section 21 thereof provides for revision of development plan atleast once in ten years. In exercise of power under Section 20 of the said Act, the State of Gujarat had reserved certain areas of which the respondents therein were the owners. On 3/3/1986, a development plan was finally published in terms of the provisions of the said Act and the period of 10 years therefrom lapsed on 2/3/1996. A revised development plan, however, came into being on 20/2/1996. The respondents who claimed ownership of the lands in question issued notices in terms of sub-section (2) of Section 20 of the said Act asking the State Government to acquire the properties in terms thereof. But, no action was taken. It was contended on behalf of the respondents that the appellants therein were under statutory obligation to take steps for acquisition of the said land on receipt of requisite notice under Section 20(2) and on their failure to do so, the reservation in respect of the land in question would lapse. On behalf of the appellant on the other hand, it was contended that although Section 20(2) enables service of notice by the land owners for acquisition within the stipulated period, the same would not come into operation when the final development plan is in the process of revision under Section 21 read with Section 20(1). The High Court held that issuance of a draft revised plan by itself does not put an embargo on the application of sub-section (2) of Section 20. An appeal was carried to the Supreme Court. The Supreme Court dismissed the appeal. The Supreme Court observed that sub-section (2) of Section 20 carves out an exception to the exercise of powers by the State as regards acquisition of land for the purpose of carrying out the development of the area in the manner provided for therein; it provides that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further, in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, viz. the designation of the land shall be deemed to have lapsed. The Supreme Court observed that a legal fiction, therefore, has been created in the said provision and when the legal friction is created it must be given its full effect. The Supreme Court observed that Section 21 of the said Act which imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan, does not and cannot mean that substantial right conferred on the owner of the said land or the persons interested therein shall be taken away.

7. In Baburao Salokhe Vs. Kolhapur Municipal Corporation & Anr., (2003)3 ALL MR 433, following judgment of the Supreme Court in Bhavnagar University's case (supra) this court observed as under :

"The legal position as regards MRTP Act on the basis of aforesaid observations made by the Apex Court in Bhavnagar University emerges that by imposition of a statutory obligation under Section 38 on the part of the State or the appropriate authority to revise the development plan the rights of the owners accrued in terms of Section 127 are not taken away. Section 38 of MRTP Act, in our opinion, does not and cannot be read to mean that substantial right conferred upon the owner of the land or the person interested under Section 127 is taken away. In other words, Section 38 does not envisage that despite the fact that in terms of Section 127, the reservation lapsed, only because of a draft revised development plan or final revised development plan is made would not automatically result in revival of reservation that had lapsed. If the reservation of the petitioner's land for the purpose of garden had lapsed and as we found in fact has lapsed on 28-2-1992, because of draft revised plan made in the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation."

8. In Kishor Gopalrao Bapat & Ors. Vs. State of Maharashtra & Anr., 2006 (1) ALL MR 232, relying on the aforesaid judgment, while dealing with the similar issue, this court observed that once reservation lapses in view of contingencies mentioned in Section 127 of the MRTP Act, the necessary consequence under the scheme of Section 127 of the MRPT Act must follow. This court further observed that the land which is released from the reservation becomes available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan. This court clarified that this right which is conferred or accrued to the owner of the land due to lapsing of reservation cannot be taken away by the Planning Authority by exercising power under Section 38 of the MRTP Act.

9. This court had again an occasion to consider the same question. In Dr. Kishor s/o. Siddheshwar Wadotkar Vs. Director of Town Planning & Ors., 2007(4) ALL MR 258, this court formulated the issue which it was considering as under :

"Whether after lapsing of reservation under section 127 of the MRTP Act, the Planning Authority is entitled in law to again reserve the said land in the revised development plan for public purpose or the owner of the land is entitled to get the land released from reservation as per scheme of section 127 of the MRTP Act ?"

Following the judgment in Kishor Gopalrao Bapat's case (supra), this court reiterated that a plain reading of provisions of Section 127 of the MRTP Act demonstrates that after lapsing of period of ten years, if the concerned Authority fails to take steps in respect of acquisition of land or does not acquire the land within a period of six months from the date of service of notice as contemplated under Section 127, reservation shall be deemed to have lapsed and land shall be deemed to be released from such reservation. This court further reiterated that the right which is accrued to the owner of the land after lapsing of reservation cannot be taken away by the Planning Authority by exercising power under Section 38 of the MRTP Act, by again reserving the land for the public purpose in the revised development plan.

10. In Writ Petition No.6345 of 2008 and other companion writ petitions, this court was concerned with a case where a piece of land was reserved for garden in development plan sanctioned in the year 1985 under the MRTP Act. The petitioners therein gave notice under Section 127 of the MRTP Act either to dereserve the land or acquire the said land within six months. The lands were neither acquired nor dereserved. The Municipal Corporation filed an affidavit stating that the General Body meeting was held and a Resolution was passed that the Corporation had taken a decision and rejected the proposal for acquisition of the said land on the ground that the said land is like a trench and, hence, the purpose of Corporation will not be served. Noticing that the Corporation, for whose benefit the land was to be acquired does not need the land, this court observed that the mandate of Section 127 of the MRTP Act requires that the land should be dereserved. By judgment and order dated 12/12/2008, the lands were, therefore, directed to be treated as dereserved. In this case also, Mr. Patil, the Deputy Commissioner of respondent 2, for whose benefit the land was to be acquired, has filed affidavit in reply. Paragraph 6 of the said affidavit reads thus :

"6. I say that on 17.1.2008, the General Body Meeting No.09 and Resolution No.192, after brought discussion, the General Body of the Respondent-Corporation has taken decision and rejected the said proposal for acquisition on the ground that the said land is like trench and pool of ditches, therefore, waste water standing on the said plot, therefore, the purpose of corporation will not be served and hence, there is need of the said plot."

11. It is evident, therefore, that the Corporation does not require the land any more. In the light of the above judgments and particularly considering the fact that the Corporation for whose benefit the land was to be acquired has gone on record to say that it does not require the land any more and has passed a resolution to that effect, in our opinion, the petition must succeed. The petitioner's land being Survey No.197/1 situated in Kupwad City which was under reservation is directed to be treated as dereserved. If the petitioners submit any plan for development of the said land, the Authorities should consider it in accordance with law.

12. The petition is disposed of in the aforestated terms.

Petition allowed.