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2012 DIGILAW 401 (BOM)

Subhash s/o Ramrao Jadhav v. State of Maharashtra

2012-02-23

B.R.GAVAI, SUNIL P.DESHMUKH

body2012
Judgment : ( Gavai, J.) 01. Rule. Rule made returnable forthwith and heard finally, with the consent of the parties. 02. The petitioners, who are the owners of the lands bearing CTS Nos. 10908, 10909, 10910, 10912 and 10914 situated at Nanded, had issued a purchase notice to the Respondents, since their lands were reserved for play ground and primary school in the final development plan of Nanded City. The said purchase notice was issued on 13.7.2005, and vide order dated 25.12.2005, the said purchase notice was confirmed by Respondent No.1. with directions to Respondent No.3 for taking steps for acquisition of the lands in question. 03. On 28.11.2006, i.e. about a month before expiry of one year's period, a proposal was sent by Respondent No. 3 to the Collector, for taking steps for acquisition of the said lands. However, vide order dated 22.2.2007, the proposal for acquisition was rejected by the Collector on various grounds. The Respondent-Municipal Corporation also passed a resolution on 31.3.2010 to the effect that since the land acquisition proceedings were not initiated within one year from the date on which the purchase notice was confirmed, the lands stood de-reserved. However, in the meantime, the petitioners had applied to the Collector for grant of permission for Non Agricultural use of the lands, but the same was rejected. The petitioners, therefore, went in appeal before Respondent No.1. In the said appeal, Respondent No.1 held that the reservation does not lapse and, therefore, directed the Municipal Corporation to deposit 2/3rd of the amount of compensation payable towards the said lands and take further steps for acquisition of the said lands. Hence, the present petition. 04. For appreciating the controversy and rival submissions, it would be necessary to refer to Section 49 of the Maharashtra Regional Town Planning Act, 1966 (for short, "MRTP Act"). Section 49 reads:- "49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases. Hence, the present petition. 04. For appreciating the controversy and rival submissions, it would be necessary to refer to Section 49 of the Maharashtra Regional Town Planning Act, 1966 (for short, "MRTP Act"). Section 49 reads:- "49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases. (1) Where - (a) any land is designated by a plan as subject to compulsory acquisition, or (b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or (c) any land is indicated in any plan as land on which a highway is proposed to be constructed or included, or (d) any land for the development of which permission is refused or is granted subject to conditions and any owner of land referred to in clauses (a), (b), (c) or (d) claims - (i) that the land has become incapable of reasonably beneficial use in its existing state, or (ii) where planning permission is given subject to conditions that the land cannot be rendered capable or reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions, or (e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated, the owner or person affected may serve on the State Government within such time and in such manner, as is prescribed by regulations a notice (hereinafter referred to as "purchase notice") requiring the appropriate authority to purchase the interest in the land in accordance with the provisions of this Act. (2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the planning authority, and of any order or decision of that authority and of the State Government, if any, in respect of which the notice is given. (2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the planning authority, and of any order or decision of that authority and of the State Government, if any, in respect of which the notice is given. (3) On receipt of a purchase notice, the State Government shall forthwith call from the planning authority and the appropriate authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not to later than thirty days from the date of their requisition. (4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in subsection (1) are fulfilled, and that the order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice or direct that the planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case it shall give the applicant reasonable opportunity of being heard." (5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period. (6) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under Section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan." 05. It can thus be seen that the scheme under the Act is very clear. It can thus be seen that the scheme under the Act is very clear. When the owner of the land claims that he is unable to sell his land because of its designation or allocation under a plan, he may serve on the State Government within such time and in such manner, as is prescribed by regulations, a notice requiring the appropriate authority to purchase the interest in the said land in accordance with the provisions of this Act. 06. Under sub-section (2) of Section 49 of the MRTP Act, the purchase notice is required to be accompanied by a copy of an application made by the applicant to the planning authority. Under sub-section (3), on receipt of purchase notice, the State Government is required to call the report from the planning authority and the appropriate authority, and such authorities are required to forward the report to the State Government as soon as possible, but not later than thirty days from the date of their requisition. Sub-section (4) of the said Section empowers the State Government, either to confirm the purchase notice, or to direct that the planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. The said sub section provides that where the State Government refuses to confirm the purchase notice, it shall give reasonable opportunity to the owner of being heard. Sub Section (5) provides that if, within a period of six months from the date on which a purchase notice is served, the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period. Subsection (7) of Section 49 states that if within one year from the date of confirmation of the notice, the appropriate authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or, as the case may be, allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan. 07. 07. It can thus be seen that Section 49 of the MRTP Act, is a complete code in itself. When a owner of the land claims that on account of designation of the land, he is unable to sell it, except at a lower price, he can serve a purchase notice on the State Government. A discretion is vested under Subsection (4) of said Section, with the State Government to, either confirm the purchase notice, or direct the concerned authority for granting planning permission without condition or subject to such conditions as will make the land capable of reasonably beneficial use. The said sub section also provides that in case the State Government refuses to confirm the purchase notice, a reasonable opportunity of being heard will be given to the applicant. Subsection (5) provides that in case the State Govt. fails to take any steps within six months from the date of service of purchase notice, the notice shall be deemed to have been confirmed at the expiry of that period, and subsection (7) provides that in case the appropriate authority fails to make an application for acquiring the land as required under Section 126 of the MRTP Act within one year from the date of confirmation of the purchase notice, the reservation or allotment or restriction on the land shall be deemed to have lapsed and the owner will be entitled to develop his land as permissible in the case of adjacent land. 08. It is thus clear from the aforesaid statutory provisions that a right vests in favour of the owner of the land, in case the planning authority fails to make an application for acquisition of the land within a period of one year from the date on which the purchase notice has been confirmed by the State Govt., as required u/S. 126 of the MRTP Act. 09. Indisputably, in the present case, though the purchase notice was confirmed on 28.12.2005. No doubt, that an application was made by the appropriate authority on 28.11.2006, so that it would be within a period of one year from the date of confirmation of the purchase notice. However, a perusal of the communication dated 22.2.2007 by the Collector, itself wold reveal that the said proposal was not consistent with the statutory provisions. No doubt, that an application was made by the appropriate authority on 28.11.2006, so that it would be within a period of one year from the date of confirmation of the purchase notice. However, a perusal of the communication dated 22.2.2007 by the Collector, itself wold reveal that the said proposal was not consistent with the statutory provisions. It can, thus, be seen that in the present case, the Appropriate Authority had even failed to make an application as per the provisions of Section 126 of the MRTP Act for acquiring the land within a period of one year from the date of confirmation of purchase notice, and as such, reservation stood lapsed on expiry of one year's period from the date of confirmation of the purchase notice, and therefore, the petitioners were free to develop their lands as was permissible in case of adjacent land. It is further to be noted that the Municipal Corporation itself has passed a resolution that if the proceedings were not initiated within one year from the date of confirmation of purchase notice, the land would be de-reserved. 10. In that view of the matter, the petition deserves to be allowed. The petition is allowed, accordingly. Rule made absolute in terms of prayer clauses (B) and (C). 11. We express our appreciation for the valuable assistance rendered by Shri V.J. Dixit, learned Senior Council, who has acted as amicus curiae in the matter.