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2008 DIGILAW 383 (BOM)

Ajay Vasant Gawand v. State of Maharashtra

2008-03-12

J.N.PATEL, NISHITA MHATRE

body2008
P.C.:- Rule. By consent of the parties, Rule made returnable forthwith and heard finally. 2. Heard the learned counsel for the parties. The petitioner has approached this Court seeking a writ in the form of declaration that the petitioner’s land admeasuring about 1200 sq.mtrs bearing survey No.40, Hissa No.4 (part) Navpada (City Survey No.32(part)) Tika No.20 situate at Navpada, Thane City stand released from reservation, allotment or designation and that the petitioner is therefore, entitled to develop the land as otherwise permissible in the case of the adjacent land. 3. It is the petitioner’s case that in the year 1974, the development plan for the city of Thane came into force wherein the petitioner’s land was shown as reserved for post and telegraph department. It is the case of the petitioner that till the year 1991, no steps were taken by the respondents to utilise the land for the purpose it was reserved. On 22.11.1999, a revised development plan was notified by the State Government which in no manner changed the reservation of 1974. Therefore till 27 years the respondent failed to acquire the land of the petitioner for the purpose it was reserved in the development plan and therefore, on 15.1.2002, the petitioner gave notice under section 127 of the Maharashtra Regional Town Planning Act, 1966 to the Post Master General, GPO, Mumbai for acquisition of the land for the purpose of post office as per the reservation of 5.3.2002. The petitioner received a reply from the office of the Post Master General, GPO, Mumbai that Collector, Thane has been approached by them to initiate land acquisition proceedings as no steps whatsoever were taken for acquisition by the respondent. 4. It is the case of the petitioner that on being served with notice u/s 127 of the MRTP Act, if no acquisition of the reserved land as notified by the authorities is made within a period of six months, the reservation lapses and the land owner is free to develop his land. It is the case of the petitioner that no notification came to be issued under section 6 of the land acquisition act. Hence, the petitioner’s land should be declared free of reservation. 5. In the affidavit in reply filed on behalf of the State by the Town Planner, office of the Deputy Director of Town Planning, Konkan Division, the fact situation is not at all disputed. Hence, the petitioner’s land should be declared free of reservation. 5. In the affidavit in reply filed on behalf of the State by the Town Planner, office of the Deputy Director of Town Planning, Konkan Division, the fact situation is not at all disputed. On the other hand, a stand has been taken that the Thane Municipal Corporation i.e. Respondent No.2, proposes to modify the plan and wants to reserve the said land for the purpose of school instead of post and telegraph department and that the said proposal has been submitted to the government by Respondent No.2 Corporation vide letter dated 22.9.2005 of which the Government has not taken any final decision. In this case the Respondent No.2 i.e. the Municipal corporation has not filed any affidavit in reply but there is an affidavit in reply filed by the Superintendent of Post Offices, Thane, Central Division, Thane clearly indicating that inspite of the post and telegraph department taking necessary steps to acquire the land, the authorities have not taken any steps in the matter. On the other hand, Respondent No.2 Corporation vide their resolution No.369 dated 19.10.2001 has proposed modification under section 37(1) of the MRTP Act, 1966 to change the reservation from post and telegraph department to school and further notified that interested persons shall submit their suggestions or objections to the modification within 30 days. This proposal was opposed by the post and telegraph department by lodging their exception but no decision in the matter has been taken. Respondent NO.3 has also annexed various correspondence it had with Respondent Nos.1 and 2. The learned counsel appearing for the petitioner submits that the issue stands covered by 3-Judge bench decision of the Supreme Court in the case of Girnar Traders v/s. State of Maharashtra & Ors., alongwith S.P. Building Corporation & Anr. v/s. State of Maharashtra & Ors., (2007) 7 SCC 555 and has drawn our attention to paragraphs 54, 55 and 56 of the reported judgment; which read as under: 54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land have been prescribed for acquisition of the owner’s property. The intent and prupose of the provisions of Section 126 and 127 has been well explained in Municipal Corpn. of Greater Bombay case. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land have been prescribed for acquisition of the owner’s property. The intent and prupose of the provisions of Section 126 and 127 has been well explained in Municipal Corpn. of Greater Bombay case. If the acquisition is left for time immemorial in the hands of the authority concerned by simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub-section (4) of Section 126; and till then no declaration could be made under Section 127 as regards lapsing of reservation and contemplated declaration of land being released and available for the landowner for his utilisation as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the landowner for dereservation. The steps towards commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation. 55. Providing the period of six months after the service of notice clearly indicates the intention of the legislature of an urgency where nothing has been done in regard to the land reserved under the plan for a period of 10 years and the owner is deprived of the utilisation of his land as per the user permissible under the plan. When mandate is given in a section requiring compliance within a particular period, the strict compliance is required therewith as introduction of this section is with legislative intent to balance the power of the State of "eminent domain". When mandate is given in a section requiring compliance within a particular period, the strict compliance is required therewith as introduction of this section is with legislative intent to balance the power of the State of "eminent domain". The State possessed the power to take or control the property of the owner for the benefit of public cause, but when the State so acted, it was obliged to compensate the injured upon making just compensation. Compensation provided to the owner is the release of the land for keeping the land under reservation for 10 years without taking any steps for acquisition of the same. 56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. The step taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land, which Government may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition. 6. It is therefore submitted that this Court may grant the relief sought by the petitioner as the respondent authorities have failed to take necessary steps inspite of being served with notice under section 127 of the MRTP Act and the very fact that inaction by the authorities after reservation of the land itself releases the land from such reservation. 7. It is therefore submitted that this Court may grant the relief sought by the petitioner as the respondent authorities have failed to take necessary steps inspite of being served with notice under section 127 of the MRTP Act and the very fact that inaction by the authorities after reservation of the land itself releases the land from such reservation. 7. In view of the admitted facts relating to the reservation of the land of the petitioner in the sanctioned development plan for the purpose of post and telegraph department since the year 1974 which was also maintained in the revised development plan which was notified on 22.11.1999, there can be no issue over the matter that the respondent authorities have failed to acquire the land to utilise the same for the purpose for which it was reserved and therefore, the petitioner has given notice to the authorities i.e. the acquiring body i.e. the post and telegraph department under section 127 of the MRTP Act 1966. Section 127 of the said Act provides that if any land which is reserved for any purpose specified in the development plan is not acquired by agreement within 10 years from the date on which the final development plan comes into force, the owner or a person interested in the land may serve the notice on the development authority. If the land is not acquired by the authority or no steps are commenced for its acquisition within six months from the date of the service of such notice, the land shall be deemed to be released from the reservation and shall become available to the owner for the purposes of development as permissible in the case of the adjacent land in the development plan. Therefore, we have no hesitation to come to the conclusion that the respondent authorities having failed to act on the notice given by the petitioner within a period of six months from the date of service of such notice, the petition deserves to be allowed and therefore, we allow the petition. 8. Rule made absolute accordingly with costs in terms of prayer clause (a). Costs to be borne by Respondent No.1. 8. Rule made absolute accordingly with costs in terms of prayer clause (a). Costs to be borne by Respondent No.1. Prayer clause (a) reads as under: (a) This Hon’ble Court be pleased to issue an appropriate Writ, Order or Direction, to Respondent No.1,2 and 3 declaring that the Petitioner’s land admeasuring about 1200 square meters in Survey No.40 Hissa No.4 (pt) Navpada (C.S. No.32(pt)) Tika No.20 situate at Navpada, Thane City is deemed to be released from reservation, allotment or designation and it is now available to the Petitioners for the purpose of development as otherwise permissible in the case of adjacent land." Petition allowed.