Yashwant Govind Sakhare & Ors. v. State of Maharashtra & Ors.

15. Respondent No.9 admits in the reply affidavit that the Petitioners own land bearing Gat No.2330 measuring 23 H 45 R at Wagholi, Taluka-Haveli, District Pune. The affidavit in reply also states that Respondent No.11, Assistant Director of Town Planning Pune, approved the Town Planning Scheme for the entire Pune District by letter dated 31.07.1999 and reserved land for Chitra Sonawane. Page No. 13 of 29 building a road as per the scheme. The Town Planning Authority planned to acquire 23,675 sq. meters of land from Gat No.2330, but they did not issue any Notification under Sections 4 and 6 of the Land Acquisition Act, 1894, till now. Regarding the petitioner’s grievance, it is said that the Town Planning Authority and the Land Acquisition department are the ones who can decide the petitioner’s request, and this respondent has no power to resolve the grievance of the petitioners. The reply affidavit also states that the State Government extended the Pune Municipal Corporation boundaries by Notification dated 30.6.2021 and merged the area of Grampanchayat Wagholi and 22 other villages into the Pune Municipal Corporation.Therefore, the Grampanchayat has given all the records to the Pune Municipal Corporation, and this Respondent Pune Zilla Parishad has nothing to do with the Petitioner’s grievance.

16. Respondent No.12 claims in its reply affidavit that on 19.3.2013, it issued notices to Respondent No.1 to 11 u/s 127 of the MRTP Act, 1966. These respondents were the relevant planning authority or development authority, or appropriate authority at that time. Pune Metropolitan Planner (Planning) Authority did not exist then. It was established on 31.3.2015 by Government Notification No.TDS 120113/ CR 8715/ UD-13. Chitra Sonawane. Page No. 14 of 29

17. The Urban Development Department of the Government of Maharashtra sought PMRDA’s opinion in its letter dated 7.2.2019 about removing the ‘Y’ junction of the proposed 30 meters and 24 meters RP road of Gat No.2329 A (New Gat No.1343/A 2) and Gat No.2329 8 (New Gat No. 1343 B) village Wagholi, Taluka- Haveli, District-Pune.

PMRDA responded by letter dated 16.9.2019 that 24 meters and 30 meters RP road from the ‘Y’ junction to its connections to Nagar Road and PMC Road should be removed u/s 20(3) of MRTP Act. This road deletion recommendation covers the land of the petitioners. The petitioners; Yashwant Sakhare, Prashant Sakhare and three others, got permission from PMRDA on this said land on 12.1.2021 by showing the road widening area under the said 30-meter road.

18. Further, it is stated that the petitioners have given up their lapsing claim and cannot raise it again in this writ petition. It is said that, in the meantime, the draft development plan for Pune Metropolitan was published on 2.8.2021. The reply affidavit also states that the 30 meters RP Road has been removed and the 24 meters RP Road has been widened to 30 meters and that the NH- 753 F is planned to be 60 meters wide in the draft DP. After considering the suggestion/objections of the planning committee, Chitra Sonawane. Page No. 15 of 29 PMRDA will publish the draft DP with modifications and submit it to the Government for approval. The reply affidavit contends that in view of the legal and factual position of the published draft Development Plan regarding the issues raised in this petition, the notice issued u/s 127 for lapsing of road reservation of the approved regional plan is no longer valid.

19. Mr G.S.Godbole, learned Senior Counsel appearing on behalf of the petitioners, submitted that the respondents did not take any steps to acquire the petitioner’s land, which had been reserved by the planning authority for over 25 years, after the 1997 Notification. It is submitted that the respondents had duly received and served the notice u/s 127 of the MRTP Act, 1966, on 19.3.2013. However, they did not take any steps to acquire the land within the required statutory period. Learned Senior Counsel submitted that once the reservation lapsed due to the conditions specified in Section 127 of the MRTP Act, 1966, the planning authority had to follow the necessary consequences. It is submitted that the planning authority could not take away the right that the owner of the land got due to the lapsing of reservation by using its powers u/s 38 of the MRTP Act, 1966. It is submitted that the respondents had not followed the relevant provisions of the MRTP Act 1966 and, therefore, had not started the acquisition Chitra Sonawane. Page No. 16 of 29 proceedings as the law would mandate. It was submitted that the respondents have no intention of building the road as per the Regional Town Planning plan and have let the reservation lapse by their own actions. It is pointed out that nothing has been done by the respondents since the Notification was issued.

20. Regarding the respondent’s contention that the regional plan does not specify the appropriate authority for the acquisition and development of regional plan proposals, it is submitted that the Government of Maharashtra is shirking its responsibility to implement the regional plan. It was submitted that Section 16(1) Clause (d) of the MRTP Act, 1966 states that the State Government should be recommended to issue directions to local authorities and the region and different departments of the State Government, if any, for enforcing and implementing the proposals in the draft regional plan.

21. Mr Godbole argues that Government agencies must prepare the statutory plans and implement them properly; otherwise, the plans will be useless and ineffective, which is not the Governments intention. He points out that respondents no.1, 4, 6, 10 and 11 have admitted in their affidavit in reply that they have not issued Notification u/s 126(4) of the Act, which means that the Chitra Sonawane. Page No. 17 of 29 reservation has lapsed by operation of law.

22. It is submitted that the land which has potential for nonagricultural development could not be put to N.A. use on account of 3 RP Roads of width 24 meters, 30 meters and 60 meters and their odd alignments which have deprived the petitioners of the reasonable beneficial use of their land. It is submitted that the proposals of such wide roads consume a large percentage of land areas, the owner gets a tiny percentage of salable plot areas, and reasonable income is lost.

23. It is submitted that after issuing a purchase notice, the Collector, Pune, as the planning authority, ought to have acquired the land for the proposed roads within the timelines Section 127 would prescribe. It is submitted that the Government’s statutory plans, which are made and approved for the public interest, are to be executed by Government agencies under the Government’s guidance within the statutory time limits. It is submitted that the notice u/s 127 was not only served on the Collector as the planning authority but also on all other Government agencies.

24. It is submitted that the PMRDA was established on 31.3.2015, and hence, it was added as Respondent No.12 to this Chitra Sonawane. Page No. 18 of 29 petition. It is submitted that during this petition’s hearing, a local newspaper reported that a 30 meters wide road was being built on the petitioner’s land where the reservation had expired. It is submitted that without prejudice, the petitioners had submitted a proposal to PMRDA on 22.01.2020. Nonetheless, instead of considering such notice, PMRDA issued a notice dated 7.2.2020, which also shows that no steps for acquisition were ever taken and the reservation had expired.

25. Ms M.P.Thakur, the learned Additional Government Pleader appearing on behalf of Respondents No.1 to 8, 10 and 11, submitted that the Government had approved the regional plan for Pune District by Notification dated 25.11.1997, which became effective from 10.2.1998. According to the approved regional plan, some part of the land with Gat No.2330, at Mauze Wagholi, Taluka-Haveli District Pune, was affected by regional plan roads of 60 meters, 30 meters and 24 meters width. The rest of the area was partly in the ‘Residential’ zone and partly in the ‘No Development’ zone. The regional plan report did not specify the appropriate authority for acquiring and developing the regional plan proposals.

26. The learned AGP, however, conceded that no notification was issued for acquiring the affected land. It is submitted that the Chitra Sonawane. Page No. 19 of 29 petitioners were occupying and cultivating the writ land, indicating that the regional plan had not taken away their right to occupy and cultivate the said land.

27. It is submitted that the sanctioned regional plan did not mention the appropriate authority for acquiring and developing the regional plan roads. Hence, the notice given by the petitioners to various respondents was not valid.

28. It is submitted that instead of seeking development permission from the concerned planning authority for the remaining land, which was in the ‘Residential’ and the ‘No Development’ zone, as per sanctioned Development Control and Promotion Regulations, the Petitioners had come to this Court.

29. Mr Prathamesh Gainde and Mr Kalpesh Patil, respectively appearing on behalf of Respondents No.9 and 12, made arguments along the same line as submitted by these Respondents in their reply affidavit.

30. The rival contentions now fall for our determination.

31. To examine such contentions, it is necessary to take note of Chitra Sonawane. Page No. 20 of 29 the statutory provisions. The provisions are Section 126 and Section 127 of the Act of 1966, which read as under: Section 126: Acquisition of land required for public purposes specified in plans-(1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, [any Appropriate Authority may, except as otherwise provided in section 113-A] [Acquire the land,-(a) by agreement by paying an amount agreed to, or (b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned [on the basis of the principles laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013], Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the final Development Control Regulations prepared in this behalf provide, or (c) by making in application to the State Government for acquiring such land [under the provisions of the right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013], and the land (together with the amenity, if any, so developed or constructed ) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this Sections [or under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013], as the case may be, shall vests absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case Chitra Sonawane. Page No. 21 of 29 may be, any Appropriate Authority.] (2)On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or [if the State Government (except in cases falling under section 49 [ and except as provided in section 113 A) ] itself is of opinion ] that any land included in any such plan is needed for any public purpose, it may make a declaration to the effect in the official gazette, [in the manner provided in section 19 of the Right to Fair Compensation and Resettlement Act, 2013], in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section: [Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.] [(3) On publication of a declaration under the said [section 19], the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be, - (i) where the land is to be acquired for the purposes of a new town, the market value revealing on the date of publication of the notification constituting or declaring the Development Authority for such town; (ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an underdeveloped area; and (iii) in any other case the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area or areas for comprehensive development, whichever is earlier, or as the case may be, the date or publication of the draft town planning scheme: Provided that, nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972: Provided further that, for the purpose of clause (ii) of Chitra Sonawane. Page No. 22 of 29 this sub-section, the market value in respect of land included in any undeveloped area notified under sub-section (1) of section 40 prior to the commencement of the Maharashtra Regional Town Planning (Second Amendment) Act, 1972, shall be the market value prevailing on the date of such commencement.] [(4) [Notwithstanding anything contained in the proviso (2) sub-section(2) and sub-section (3), if any declaration ] is not made within the period referred to in sub-section (2) (or having being made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning [(Amendment)] Act, 1993], the State Government may make a fresh declaration for acquiring the land [under the provisions of the Right to Fair Compensation and Resettlement Act, 2013], in the manner provided by subsections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the official gazette made for acquiring the land afresh.] Section 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 10 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[twenty-four 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 Chitra Sonawane. Page No. 23 of 29 land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette]

32. It is a settled position in law that if the land is reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within ten years from the date when the final regional plan or final development plan takes effect or if a declaration under Sub-section (2) or (4) of Section 126 is not published in the Official Gazette within ten years then by operation Section 127 of the Act, 1966 the reservation lapses. This means that the owner or any person interested in land can serve notice on the planning authority, the development authority or, as the case may be, the appropriate authority, and if the land is not acquired or no steps as mentioned above are started for its acquisition within 24 months from the date of service of such notice, the reservation will be considered to have lapsed.

33. Section 127 of the Act requires acquisition by an agreement and /or publication of declaration as given under Sub-section (2) or (4) of Section 126 of the Act, 1966. The Act of 1966 lays down the mode of acquiring the land by an agreement in Section 126(1) (a). Section 126(1)(b) deals with situations where the land owner gives up the land and the planning authority gives TDR, FSI instead of the compensation amount. Under Section 126(1)(c), the planning authority can apply to the State Government for Chitra Sonawane. Page No. 24 of 29 acquiring the land under the provisions of the Act, 2013. Section 126(2) further states that on receiving an application u/s 126(1)(c) of the Act 1966, if the State Government agrees that the land in the application is required for the public purpose mentioned therein, it may declare so in the Official Gazette, in the way given in Section 19 of the Act, 2013.

34. Section 126(3) gives the procedure to be followed for the acquisition of the land after publishing declaration u/s 19 of the Act, 2013. Section 126(4) further states that if a declaration is not made within the time referred to in Section 126(2), the State Government may make a new declaration for acquiring the land under Act 2013 in the way given by Sections 126(2) and (3) of the Act, 1966.

35. Section 126 covers all the situations and the mode of acquisition. Section 127 of the Act of 1966 is made to protect the rights of the land owner or the person interested in the land. In fact, Section 127 limits the power of eminent domain. It is made to ensure that the land of a person is not reserved forever so as to deny such a person the benefit of his land. The reservation on a person’s land would restrict his ownership rights for at least ten years. For ten years, the owners cannot use the property, nor can they force Chitra Sonawane. Page No. 25 of 29 the planning authority and or the State Government to acquire the property if the planning authority is not willing and ready to acquire it. Ten years after the date, the development plan is made, and the land of the owner or person interested is kept under reservation, the right arises to the land owner to give notice. The provision further gives the time of 24 months to the planning authority and the State Government to take steps for acquisition.

36. The steps for acquisition have been explained by the Constitution Bench of the Supreme Court in the case of Girnar. The Constitutional Bench of the Supreme Court approved the majority view in the case of Girnar Traders (2)2, wherein it was decided by the majority judgment that the steps for acquisition would mean the declaration u/s 6 of the Land Acquisition Act within 24 months. Now, after the Act of 2013, the same would be declaration u/s 19 of the Act of 2013.

37. If the land is not acquired by an agreement between the parties or the land owner does not give up the land, then the only option for the planning authority is to apply to the State Government for acquiring such land under the provisions of the Act 2013 as given u/s 126 (1)(c). 1 (2011)3 SCC 1. 2 (2007)6 SCC 555. Chitra Sonawane. Page No. 26 of 29

38. Section 127 of the Act of 1966, is made to remove the restriction on the ownership of the person whose land is reserved. The said provision states that if no steps for acquisition are started within 24 months from the date of service of notice as given under Sub-section (2) or (4) of Section 126, then reservation lapses and steps for acquisition as given u/s 127 are a declaration u/s 19 of the Act of 2013 as is decided by the majority view in a case of Girnar Traders (2) supra. Within 24 months, the declaration u/s 19 of the Act, 2013, is required to be issued.

39. In the present case, Respondents No.1, 4, 6, 10 and 11 claim in their reply affidavit that the Petitioners still have the right to use and cultivate the land in question since the road proposal of the said regional plan does not affect them and further the approved regional plan does not name the authority responsible for acquiring and developing the regional road plan. Therefore, they say that the notice given by the petitioners to various respondents is invalid. However, we are not ready to accept this argument, as it tarnishes the credibility of the governance system.

40. In the present case, the Government notified a town planning scheme for the entire Pune District on 25.11.1997, which came into Chitra Sonawane. Page No. 27 of 29 effect from 10.2.1998. As per the scheme, the respondents reserved some land for building the proposed roads, and 23,675 sq. meters from Gat No.2330 was planned to be acquired. The record shows that the Government approved the development plan for the expanded limit of Pune Municipal Corporation on 17.5.2008. After that, the petitioners sent a notice u/s 127 of the Act to the relevant authorities on 19.3.2013. The record also shows that the Government’s Public Works Department instructed the Chief Engineer to act on the notice. However, no steps for the acquisition of the petitioner’s land were taken. It is undisputed that neither a notification under Sections 4 and 6 of the Land Acquisition Act, 1894, was issued for acquiring the petitioners land nor any acquisition steps were taken.

41. According to Section 127 of the Act, the reservation would stand lapsed if the State Government does not acquire the land within two years from the date of notice given by the owner u/s 127 of the Act, 1966. Section 127 does not provide for an extension of time, even on account of circumstances beyond the control of the State Government. Once the period of 2 years from the date of service of notice u/s 127 of the Act, 1966 by the owner is over, the consequences mentioned in this Section follow and the reservation gets lapsed. A similar view has been taken in Sanjay Chitra Sonawane. Page No. 28 of 29 Vijay Ghodake Vs. State of Maharashtra[3]. The judgment in Sanjay Ghodake has been followed in Pundalik Sharanbasappa Patil Vs. State of Maharashtra through Urban Development Department and another[4].

42. In light of the above, we hold that as no steps for the acquisition of petitioner’s land are taken within 24 months from the date of service of notice u/s 127 of the Act of 1966, the reservation lapses. The State Government shall issue necessary Notification u/s 127(2) of the Act, 1966, within two weeks from today.

43. Rule accordingly, made absolute in terms of prayer clauses (c) and (d) of the petition. No costs. [ R.N.Laddha, J.] [ G.S.Kulkarni, J.] 3 WP No.6986 of 2021.