2014(1) ALL MR 97
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
B.P. DHARMADHIKARI AND A.S. CHANDURKAR, JJ.
Arun Motiram Nimkar Vs. The Municipal Corporation Of City Of Amravati & Ors.
Writ Petition No. 5589 of 2012,Writ Petition No. 6305 of 2012,Writ Petition No. 6306 of 2012,Writ Petition No. 6309 of 2012,Writ Petition No. 6310 of 2012
3rd July, 2013
Petitioner Counsel: Mr. G.K. MUNDHADA
Respondent Counsel: Mr. J.B. KASAT, Mr. P.D. KOTHARI
Maharashtra Regional and Town Planning Act (1966), Ss.127(1), 127(2) - Lapsing of reservation of lands - Lapsing comes into force immediately after pronouncement by court - Land owner cannot be asked to await publication in official Gazette under S.127(2) to enable him to develop land in accordance with law. (Paras 7, 8, 10)
3. A common question namely "on the Court pronouncing under Section 127 of the Maharashtra Regional & Town Planning Act, 1966 that the reservation has lapsed, whether such lapsing cannot come into force till publication of Gazette Notification as contemplated by Section 127(2) of the said Act" arises for determination in all these writ petitions. Hence, we have heard respective Counsel and all the writ petitions are being disposed of by this common judgment.
4. The undisputed facts show that the respective lands owned by the petitioners were the subject matter of reservation under a development plan of the City of Amravati. Each of the petitioners had initially approached this Court seeking a declaration of lapsing of reservation in view of inaction on the part of planning authority in acquiring the said lands for the purpose for which they were reserved. This Court had in the respective writ petitions declared that the reservation had lapsed under the provisions of Section 127(1) of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as the said Act). The adjudication by this Court that the reservation in question had lapsed, has attained finality. The respective writ petitions, the site number of reservation and the date of decision of the respective writ petitions are as under:-
|Writ Petition No.||Survey No.||Reservation Site No.||Date of Judgment.|
|1||W.P.No. 5589/2012||S.No.137, mouza Badnera, Nazul Sheet No.17-B.||Site No.321 for High School.||W.P.No. 6084/ 2011, decided on 26-4-2012|
|2||W.P.No. 6305/2012||S.No.78, mouza Peth Amravati, Sub Divn. No. 1-A, 0.37R||Site No.459,460 for Higher Secondary School & Primary School.||W.P.No.3189 / 2011, decided on 10-1-2012|
|3||W.P.No. 6306/2012||S.No.7, Mouza Benoda||Site No.247-Veg Market, 248-Primary School. 249-Hospital, Maternity Home.||W.P.No.1157 / 2012, decided on 6-7-2012|
|4||W.P.No. 6309/2012||S.No.78, Sub Divn 1A 0.76R||Site No.459,460, Higher Secondary & Primary School.||W.P.No.3189/11, decided on 10-1-2012.|
|5||W.P.No. 6310/2012||S.No.26, Sub-Divn 2B, 1H 76R, Mouza Masala Nandgaonpeth.||Site No.128, Primary School.||W.P.No.1068 / 2011, decided on 3-8-2011.|
5. Each of the petitioners, after declaration by this Court as regards lapsing of reservations, had applied to the respondent nos.1 & 2 seeking permission to develop their lands as permissible in law. The respondent no.2 has amongst other grounds refused to grant permission to develop the respective lands on the ground that the lapsing of reservation under Section 127(1) of the said Act has not been notified in the Official Gazette as required by the provisions of Section 127(2) of the said Act. In view of aforesaid rejection of permission to develop the respective lands, the petitioners have approached this Court praying that they be permitted to develop their lands in accordance with law. In these writ petitions, we are concerned only with the question as to whether such lapsing, after the same has been pronounced by the Court, is required to be notified in the Official Gazette before permission to develop such lands as granted. We have not gone into the other reasons for rejection of permission to develop the respective lands.
6. Shri G. K. Mundhada learned Counsel for the petitioners contends that this Court having already declared the reservation to have lapsed, it was incumbent upon the respondent nos.1 & 2 without awaiting for notification of such lapsing under Section 127(2) of the said Act to have permitted its development. It was further contended that the statutory period of 60 days having elapsed from the date of submitting the application for development, such application was deemed to have been granted in terms of Section 45 of the said Act. On the other hand, Shri J. B. Kasat, learned Counsel appearing for the respondent nos.1 & 2 contended that till such time the lapsing of reservation was notified under Section 127(2) of the said Act, the refusal to permit development of the land was justified. It was also stated that as the applications for development had been rejected, the petitioners ought to have availed the statutory remedy prescribed under the said Act. The learned Assistant Government Pleader appearing for the respondent no.3 has contended that in view of the clear provision of Section 127(2) of the said Act, unless such lapsing of reservation is duly notified in the Official Gazette, the same does not come into force.
"127.Lapsing of reservations
[(1) If any land reserved, allotted or designated 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 a declaration under sub-section (2) or (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect; and if within twelve 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, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation 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.
[(2) On lapsing of reservation, allocation or designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette.]"
It is clear from a reading of Section 127(1) of the said Act that the same contains a deeming provision namely that after a lapse of 10 years where the planning authority or the development authority or the appropriate authority fails to take steps to acquire the said land, then the land owner is required to serve a notice on such authority and if within 12 months from the date of service of such notice, the land is not acquired or no steps are commenced for its acquisition, the reservation shall be deemed to have lapsed. It is further clear that on such lapsing of reservation, the land is deemed to be released from such reservation and it becomes available to the owner for the purposes of development as otherwise permissible in the case of adjacent land under the relevant plan. The reservation lapses under Section 127(1) of the said Act on account of the inaction on the part of the Planning Authority or other concerned Authority as the case may be. It is only on account of such inaction that the owner or any person interested is required to approach the Court to obtain such declaration. It is thus, clear that the deeming fiction in Section 127(1) of the said Act occurs on fulfillment of conditions mentioned therein and on release of such land from reservation, it becomes immediately available to the owner for the purposes of development in accordance with law.
8. In so far as sub-section (2) of Section 127 is concerned, same requires the Government to notify the lapsing of reservation by publishing the same in the Official Gazette. Notifying such lapsing is required to be done for the purposes of indicating that the reservation on the particular land has ceased to exist. The act of notifying such lapsing has got nothing to do with releasing of such land from reservation as a consequence of operation of section 127(1) of the said Act. This is further clear from the latter part of the provisions of Section 127(1) of the said Act which state that on the reservation having been deemed to have lapsed, the land shall be deemed to be released from such reservation and shall become available to the owner for the purpose of development. The object behind notifying such lapsing appears to be to bring to the notice of public at large that a particular reservation has lapsed. Section 127(2) of the said Act operates after lapsing of reservation and development of said land is not dependant on such lapsing being notified in the Official Gazette.
9. It is also necessary to consider that the issuance of notice by the owner or any person interested in the land and response thereto by the Planning Authority or other concerned Authority are aspects that are essentially within the knowledge of such Authority. The public at large has no opportunity of getting knowledge about lapsing of reservation unless the same is notified under Section 127(2) of the said Act. The scheme of the said Act especially provisions of Sections 20, 31 and 37 reveals that whenever any change or modification takes place in the development plan, the same is required to be published in the Official Gazette. Provisions of Section 127(2) of the said Act will also have to be viewed in that context. If it is held that the lapsing of reservation does not come into effect till the same is notified in the Official Gazette even in the matters where this Court has declared the reservation to have lapsed, the same would amount to reading something in Section 127(1) of the said Act which does not exist. The land owner who has approached this Court and has obtained the declaration that the reservation of his land has lapsed cannot be told to wait for issuance of the notification in the Official Gazette that such reservation has lapsed. Moreover, the respondent Nos. 1 & 2 were party to the earlier round of litigation wherein this Court had held that the said reservation had lapsed under Section 127(1) of the Act. The order of this Court having attained finality, the aspect of notifying the lapsing of reservation in the Official Gazette becomes merely a ministerial act. The permission to develop the land in accordance with law cannot be refused merely because lapsing of reservation has not been notified under Section 127(2) of the Act after the judgment of this Court.
10. We, therefore, hold that after the Court has pronounced under Section 127 of the said Act that the reservation in question has lapsed, such lapsing comes into force immediately and the land owner cannot be asked to await publication of such lapsing in the Official Gazette under the provisions of Section 127(2) of the said Act to enable him to develop his land in accordance with law.
11. As clarified earlier, we have examined the matter in the light of question as framed. We have not gone into the other reasons assigned by the respondent nos.1 & 2 for refusing permission to develop the respective lands. Accordingly, the impugned communication in the respective petitions is set aside. The respondent Nos.1 & 2 are directed to reconsider the respective applications moved by the petitioners for development of their lands in accordance with the provisions of the said Act without insisting for such lapsing of reservation to be notified in the Official Gazette under Section 127(2) of the said Act. The said exercise be completed within a period of eight weeks from the date of receipt of this order.