Bombay High Court
Madhav Raghunath Thatte & Others vs Director, Directorate Of Town ... on 10 July, 1998
Equivalent citations: 1999(1)BOMCR543
Author: A.B. Palkar
Bench: A.B. Palkar
ORDER Per A.D. Mane, J.
1. In the draft Development Plan, the land Survey No. 52 i.e. City Survey No. 2000/A, present plot No. 44 was shown reserved for stadium and public garden. The Development Plan of City of Shrirampur was finalized and sanctioned by the State Government on 16-8-1975. Thereafter, it appears that the writ land was again reserved for playground in the draft development plan.
2. This writ petition is filed by the owners in possession of the said land on 7-4-1987 inter alia seeking a Writ of Certiorari or a writ order or direction in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India directing the respondents to treat the petitioner's land as released from the reservation in the Development Plan and further sanction the development permission asked for by the petitioners along with the letter dated 25-7-1986 at Exhibit D and to restrain the respondents by themselves, their agents or servants by an order of injunction from taking any steps in furtherance of the Development Plan so far as it relates to the land of the petitioners.
3. On behalf of the respondent No. 2 the Municipal Council, Shrirampur affidavit in reply has been filed by one Shri Pratap Narayan Mujumdar, who is Arbitrator, Town Planning Schemes, Shrirampur. In para 4 of the reply an explanation is offered as to why steps were not taken within 10 years from the date of coming into force of the Development Plan. It is, however, stated that the assumption of the petitioners that their land stood released from the development plan is not correct. The land stands reserved in the final Development Plan and the Town Planning Scheme of No. IV of Shrirampur. Lastly it has been submitted that the notice under section 127 of the Maharashtra Regional and Town Planning Act, served by the petitioners was not a valid notice and therefore, the petition deserves to be dismissed.
4. In this context, it is relevant to mention that the petitioners have filed two documents, namely: the Resolutions passed by the Shrirampur Municipal Council on 21-10-1992 and 21-6-1993 resolving that the lands in question are no longer required by the Municipal Council under the Development Plan.
5. Mr. Adsure, learned Counsel for the petitioners, submits that the present case squarely falls within the ratio of decision of the Apex Court in the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association, 1988(1) Bom.C.R. 578 : 1988 Mh. L.J. 1. The learned Counsel submits that failure to take steps within six months from the date of receipt of the purchase notice by the petitioners, reservation has lapsed as provided in section 127 read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 (for short the 'Act'). It is also submitted that in view of the resolutions passed by the Municipal Council. Shrirampur, as referred to above the Municipal Council has deliberately failed to take steps either to acquire the land by agreement within ten years from the date of final development plan or final regional plan which came into force on 16-8-1975 or taking proceedings for acquisition as such under the Act or under the Land Acquisition Act, 1894.
6. Mr. Anil Kasliwal, learned Counsel appearing for the respondent No. 2, however, urged that the notice under section 127 of the Act was ad dressed to the Arbitrator and not to the planning authority, although copy of the notice was served on the planning authority namely: Shrirampur Municipal Council and therefore, the notice is not a valid notice and as such the writ petition is not tenable. The learned Counsel for the respondent No. 2, however, does not dispute about passing of the aforesaid two resolutions by the Municipal Council resolving that the lands shown reserved in the Town Planning Scheme was no longer required by the Municipal Council.
7. In the first place, it is an admitted position that the planning authority failed to take steps within six months from the date of service of the purchase notice, copy of which is annexed at Exhibit A. There is also no dispute that the planning authority also failed to take steps for acquisition within 10 years from the date of coming into force of the sanctioned final Development Plan, which, in the instant case, came into force on 16-8-1975. Therefore, it is a clear case whether there is failure to take steps as required by the provisions of section 127 read with section 126(1) of the Act. The Apex Court in the case cited supra has held that according to the plain reading of section 127 of the Act it is manifest that the question whether the reservation had lapsed due to the failure of the planning authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by section 127 is a mixed question of fact and law. It was further held that there was no question of period of six months being reckoned from the date of the receipt of the information requisitioned. Having failed to take any step namely: of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the date of service of the purchase notice, the impugned notification issued by the State Government under section 6 of the Land Acquisition Act making the requisite declaration that such land was required for a public purpose i.e. for a recreation ground was invalid, null and void. The Apex Court further held that the period of six months provided by section 127 upon expiry of which the reservation of the land under Development Plan lapses is a valuable safeguard to a citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. Section 127 of the Act is a part of the law of acquisition of lands required for public purposes namely; for implementation of schemes of town planning. The statutory bar created by section 127 providing for reservation land under development scheme lapse if no steps are taken for acquisition of land within a period of six months from the date of the service of the purchase notice, is an integral part of the machinery created by which acquisition of the land takes place. In our considered opinion, in the facts and circumstances of the present case also the reservation of land of the petitioners has lapsed.
8. Coming to the question whether there was a valid notice under section 127 of the Act, it is an admitted position that though the notice is addressed to the Arbitrator, copy of the same was given also to the planning authority. In this context it is relevant to take into consideration the provisions of section 127 of the Act which inter alia provides for the service of the notice either on the planning authority, development authority or as the case may be, any appropriate authority, except otherwise provided in section 113-A of the Act. The definition of the words "appropriate authority" means "any public authority on whose behalf the land is designated for a public purpose in the scheme and which it is also authorised to acquire". That necessarily means that it includes the Regional Planning Board, Development Authority, Special Planning Authority and Tribunal of Appeal as envisaged under section 75 of the Act. It would also include the Town Planning Officer, Director of Town Planning and such other officers appointed for the purpose of implementing the object of the Act. Even otherwise the very purpose of notice as envisaged by section 127 of the Act could be served if a copy of the notice addressed to the Arbitrator is served on the planning authority. In our opinion the purpose of service of purchase notice is to give requisite knowledge to the appropriate authority that on its failure to take steps to acquire the land under section 127 of the Act within six months and to give notice of the intention to purchase the land as per the provisions of section 127 of the Act. It is not in dispute that the notice of purchase was duly served on the appropriate authority though it was a copy of the notice addressed to the Arbitrator. In our opinion that makes no difference especially when the Municipal Council which is the appropriate authority has in fact by its resolutions referred to above did not require the lands for any public purpose as such. Therefore, failure to take steps as required under law was deliberate. In the circumstances, there is hardly any merit in the contention of the learned Counsel for the respondent No. 2 that the notice was invalid.
9. In the circumstances, the reservation of the land Survey No. 52 i.e. City Survey No. 2000/A present Plot No. 44 has lapsed and consequently stands released from such reservation. The petitioners are entitled to the reliefs sought for.
10. In the result, the writ petition is allowed. Rule is made absolute. It is declared that the land shall stand released in favour of the petitioners owners of the land. There shall, however, be no order as to costs.
11. Writ petition allowed.