Bombay High Court
Lemkaran Parasmal Samdariya And ... vs The State Of Maharashtra And Others on 22 September, 2021
Bench: S. V. Gangapurwala, R. N. Laddha
1 959 WP.987.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD.
959 WRIT PETITION NO.987 OF 2019
LEMKARAN PARASMAL SAMDARIYA AND ANOTHER
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioners : Mr. S. P. Salgare, h/f Mr. Niteen V. Gaware.
AGP for Respondent/State: Mr. S. P. Tiwari.
Adv. for Respondent No.3 : Mr. G. K. Naik Thigle, h/f Mr. D. D. Deshmukh.
...
CORAM : S. V. GANGAPURWALA &
R. N. LADDHA, JJ.
DATE : 22nd September, 2021.
PER COURT :
. The land of the petitioners bearing Site No.31 is reserved
for garden and Site No.30 for shopping complex and vegetable market
in the development plan revised on 8th September, 1997. No steps for
acquisition were taken. The petitioners issued notice on 20 th July,
2016 under Section 127 of the Maharashtra Regional and Town
Planning Act. For a period of one year, no steps were taken by the
Planning Authority. It is the contention of the petitioners that the
reservation stands lapsed. The Planning Authority on 12th September,
2017 issued fresh notification intending to reserve the land of the
petitioners for Town Hall and Garden as Site Nos.24 and 23
respectively.
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
2 959 WP.987.2019.odt
2 According to the learned counsel, once the reservation
stood lapsed and the notice period was over, the Planning Authority
could not have again reserved the land of the petitioners as it stood
released from reservation.
3 Mr. Thigle, learned counsel for the Planning Authority does
not dispute that no steps are taken for acquisition within the stipulated
period. However, the land of the petitioners is again reserved in the
revised development plan, for which the notification was issued on 12 th
September, 2017. As the same is again reserved, ten years would
start running from the date of notification i.e. from 12 th September,
2017. The learned counsel to buttress his submissions relies upon the
judgment of the Apex Court in the case of Prafulla C. Deve Vs.
Municipal Commr., reported in, (2015) 11 SCC 90.
4 The factual matrix as narrated above, is not disputed. It is
not disputed that within the period of one year from the date of
issuance of notice the Planning Authority did not take steps for
acquisition. No notification under Section 19 of the Right to Fair
Compensation Act read with Section 126 of the Maharashtra Regional
and Town Planning Act was issued. In view of the judgment of the
Apex Court in the case of Girnar Graders (3) Vs. State of Maharashtra
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
3 959 WP.987.2019.odt
and others, reported in, (2011) 3 Supreme Court Cases 1, the
reservation stands lapsed.
5 The Planning Authority, it appears that after the lapse of
notice period, on 12th September, 2017 issued a notification reserving
the land of the petitioners again for Town Hall and Garden. The same
would not be permissible as the land already stood lapsed from
reservation. Reference can be had to the judgment of the Apex Court
in the case of Godrej & Boyce Manufacturing Co. Ltd. Vs. State of
Maharashtra & Ors, dated 21st January, 2015 in Civil Appeal No.1086
of 2015. Paragraph 16 of the said judgment reads thus:
"16. It is also an undisputed fact that after 10 years, notice
dated 4.9.2002 served by the appellant under Section 127 of
the MRTP Act upon the respondent No.1 stating that if, the
reserved land was needed for the notified purpose, Railway
department may acquire the same by adopting acquisition
proceedings, but if the same is not acquired, the clarification
to that effect be issued. Thereafter, on 3.3.2003 the period of
6 months as prescribed under the provision of Section 127 of
the MRTP Act, after issuance of the above notice by the
appellant and served on the respondent No.1, was also
lapsed long back. Therefore, the reservation of the land in
favour of the Railway was deemed to be released under the
above said provision of the MRTP Act. The respondent No. 2-
Ministry of Railways informed the Urban Development
Department of the State Government on 1.11.2004 stating
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
4 959 WP.987.2019.odt
that there was no proposal for acquisition of the land in the
Railways in the near future, is evident from the undisputed
fact of the correspondence made between the Ministry of
Railways and the Urban Development Department of the
State Government, which would clearly go to show that the
land reserved even after 10 years and on expiry of service of
notice of 6 months there was no intention on the part of the
State Government to acquire the reserved land for the
purpose reserved in favour of the Railways department to
form the Railway tracks between "Thane and Kurla". In that
view of the matter, the land reserved for the purpose under
Section 127 of the MRTP Act, is lapsed and the appellant is
entitled for developing the land as it likes. The State
Government instead of clarifying to the notice issued by the
appellant, has proceeded further to initiate proceedings under
Section 37 of the MRTP Act, proposing the modification in the
Development Plan by deleting Railway reservation and
adding reservation for Development Plan Road. Section
37(1) of the MRTP Act, which deals with modification of Final
Development Plan reads thus:-
"37. Modification of final Development Plan - (1)
Where a modification of any part of or any proposal
made in, a final Development Plan is of such a
nature that it will not change the character of such
Development Plan, the Planning Authority may, or
when so directed by the State Government shall,
within sixty days from the date of such direction,
publish a notice in the Official Gazette and in such
other manner as may be determined by it inviting
objections and suggestions from any person with
respect to the proposed modification not later than
one month from the date of such notice; and shall
also serve notice on all persons affected by the
proposed modification and after giving a hearing to
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
5 959 WP.987.2019.odt
any such persons, submit the proposed
modification (with amendments, if any), to the State
Government for sanction.
1A) If the Planning Authority fails to issue the notice
as directed by the State Government, the State
Government, shall issue the notice and thereupon,
the provisions of sub-section (1) shall apply as they
apply in relation to a notice to be published by a
Planning Authority."
By a careful reading of the provisions of Sections 127 and
37(1) of the MRTP Act, which are extracted as above
abundantly make it clear that the State Government is not
empowered to delete the reservation of the land involved in
this case from Railway use and to modify the same for
Development Plan Road in the Development Plan after expiry
of 10 years and 6 months notice period was over as the
appellant has acquired the valuable statutory right upon the
land and the reservation of the same for the proposed
formation of Railway track was lapsed long back. Further the
respondent No. 2 vide its letter dated 1.11.2004 has stated
that there is no proposal for acquisition of land for the
purpose of which it was reserved.
Section 127 of the MRTP Act, which fell for
consideration before the three Judge Bench of this Court in
the case of Shrirampur Municipal Council, Shrirampur v.
Satyabhamabai Bhimaji Dawkher & Ors., (2013) 5 SCC 627
wherein the contention of the appellant that the majority
judgment in the case of Girnar Traders (2) v. State of
Maharashtra, (2007) 7 SCC 555 need to be considered by
larger Bench as the same is contrary to Section 127 and
Municipal Corpn. of Greater Bombay v. Hakimwadi Tenants'
Asson., (1988) Supp SCC 55 case, was rejected. The Court
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
6 959 WP.987.2019.odt
opined that the same is not contrary to Section 127 of the
MRTP Act and further held that there is no conflict between
the judgments of the two-Judge Bench in Hakimwadi
Tenants' Asson. (supra) and the majority judgment in Girnar
Traders (2) (supra) case. Further, the three Judge Bench
judgment in Shrirampur Municipal Council, Shrirampur
(supra) at paras 45 and 46 supported the observation of
Constitution Bench in Girnar Traders (3) v. State of
Maharashtra, (2011) 3 SSC 1 case relating to Section 127 of
the MRTP Act, which read thus:-
"45. In our view, the observations contained in
para 133 of Girnar Traders (3) unequivocally
support the majority judgment in Girnar Traders (2).
46. As a sequel to the above discussion, we hold
that the majority judgment in Girnar Traders (2) lays
down correct law and does not require
reconsideration by a larger Bench..."
From the above, it is clear that the majority view in Girnar
Traders (2) (supra) is held to be good law. Therefore, the
case of Girnar Traders (2) (supra) is binding precedent under
Article 141 of the Constitution of India upon the respondent
No.1. The relevant paragraph 133 from Girnar Traders (3) is
extracted hereunder :-
"133. However, in terms of Section 127 of the
MRTP Act, if any land reserved, allotted or
designated for any purpose specified is not
acquired by agreement within 10 years from the
date on which final regional plan or final
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
7 959 WP.987.2019.odt
development plan comes into force or if a
declaration under sub-section (2) or (4) of Section
126 of the MRTP Act is not published in the Official
Gazette within such period, the owner or any
person interested in the land may serve notice
upon such authority to that effect and if within 12
months from the date of 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 the land would become available to the
owner for the purposes of development. The
defaults, their consequences and even exceptions
thereto have been specifically stated in the State
Act. For a period of 11 years, the land would remain
under reservation or designation, as the case may
be, in terms of Section 127 of the MRTP Act (10
years + notice period)."
In view of the above said statement of law declared by this
Court in the cases referred to supra, after adverting to the
judgment of majority view in Girnar Traders (2) case (supra)
is accepted in Shrirampur Municipal Council, Shrirampur
(supra), wherein it is held that the Girnar Traders (2) (supra)
case is not conflicting with the Hakimwadi Tenants' Asson.
case (supra), the statement of law laid down in the above
referred cases are aptly applicable to the fact situation.
Therefore, we have to hold that the impugned notification is
bad in law and liable to quashed. The High Court has not
examined the impugned notification from the view point of
Section 127 of the MRTP Act and interpretation of the above
said provision made in the case of Girnar Traders (2) (supra),
therefore, giving liberty to the appellant by the High Court to
file objections to the proposed notification is futile exercise on
the part of the appellant for the reason that the State
Government, once the purpose the land was reserved has
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
8 959 WP.987.2019.odt
not been utilized for that purpose and a valid statutory right is
acquired by the land owner/interested person after expiry of
10 years from the date of reservation made in the
Development Plan and 6 months notice period is also
expired, the State Government has not commenced the
proceedings to acquire the land by following the procedure as
provided under Sections 4 and 6 of the repealed Land
Acquisition Act, 1894. Therefore, the land which was
reserved for the above purpose is lapsed and it enures to the
benefit of the appellant herein. Therefore, it is not open for
the State Government to issue the impugned notification
proposing to modify the Development Plan from deleting for
the purpose of Railways and adding to the Development Plan
for the formation of Development Plan Road after lapse of 10
years and expiry of 6 months notice served upon the State
Government."
6 The facts of the present case are identical.
7 In light of the above, the reservation stands lapsed.
8 One of the land of the petitioners at Site No.31 is reserved
for garden. Garden and open spaces act as lungs of the city.
Reference can be had to the judgment of the Apex Court in case of
Municipal Corporation of Greater Mumbai and others Vs. Hiraman
Sitaram Deorukhar and others, reported in, (2019) 14 Supreme Court
Cases 411. The Planning Authority is required to take steps to acquire
::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::
9 959 WP.987.2019.odt
the said property and maintain the garden. At the same time the right
to property of the petitioners cannot be negated eternally. The right to
property though is not a fundamental right, still subsist as constitutional
right and nowadays it has been brought within the contour of human
rights. The balance will have to be struck in maintenance of ecology
and environment and the ownership rights of the petitioners.
9 In light of the above, we pass the following order:
ORDER
I. The land of the petitioners reserved as Site No.31 as garden and Site No.30 for shopping complex stands released from reservation. The subsequent reservation also shall not apply to the petitioners' land. However, the petitioners shall not use the land reserved as Site No.31 for garden in the development plan of 1997 for a period of one year and shall maintain it as it is. II. The Planning Authority may take steps to acquire the property.
III. If the Planning Authority does not take steps to acquire the property, then the petitioners would ::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 ::: 10 959 WP.987.2019.odt be entitled to use the land as an adjacent user. IV. Thereafter, the State Government shall issue notification under Section 127(2) of the Maharashtra Regional and Town Planning Act within a period of six months.
IV. The writ petition is accordingly allowed in above terms. No costs.
[ R. N. LADDHA, J. ] [ S. V. GANGAPURWALA, J. ] nga ::: Uploaded on - 27/09/2021 ::: Downloaded on - 14/10/2021 02:03:34 :::