Sadashiv Tryambak Rajebahadur & Ors. v. State of Maharashtra & Ors.

BRIEF FACTS:

3. The Petitioners are owners and in possession of the land bearing CTS No. 352 & 352 A, Final Plot No. 131/1, 131/2 I TPS-1 [Final], (bearing Reservation No. 485 “Parking”) admeasuring 800 sq. meters (referred to as “the Plot” for short) situated within the jurisdiction of Nashik Municipal Corporation. It is stated that though the Plot was reserved for public parking since 1996 no steps were taken for its acquisition. On 8th July 2015, the Petitioners issued a Purchase notice under section 127 of the MRTP Act to acquire the plot on payment of compensation as per “The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013”. In its response to such notice dated 24th July 2015 the Respondent-Municipal Corporation stated that the period would only commence upon submission of the Petitioners documents. Correspondence ensued between the Petitioners and the Municipal Corporation regarding production of documents of title by the Petitioners. On 12th July 2016 the Petitioners intimated the Respondent Nos.2, 4 and 5 that the reservation had lapsed by operation of law namely the provisions of Section 127 of the MRTP Act, since the steps as contemplated under the act were not taken by the Respondents. The Petitioners contend that by an application under the Right to Information Act 2005, the Petitioners discovered that the proposal for the land acquisition bearing Land Acquisition Proposal Case No. 3 of 2000 was pending before the Dy. Collector (Land Acquisition) No.2 for measurement of the Plot. Being aggrieved by the Respondents’ action purporting to continue the reservation on the Petitioner’s Plot, the Petitioners have filed this Petition on 25th October 2016.

4. The Respondent No.1 in their reply affidavit contend that, Revised Draft Development Plan for Nashik Municipal Corporation under section 26 of the Act was published in the Maharashtra Government Gazette on 4th June 2015 which has been partly sanctioned vide Notification No. TPS-1116/CR-140/1/2016/UD-9 dated 9th January 2017 under Section 31 of the MRTP Act and is in force with effect from 9th February 2017. It is stated that by an amendment the words “twelve months” were substituted by “twenty – four months” with effect from 29th August 2015 consequently, the period to take steps pursuant to the notice was to expire on 7th July 2017. It is further stated that pursuant to the notification dated 9th January 2017 issued under section 31 of the MRTP Act, by virtue of the revised Development Plan the Plot is again reserved for “Public Amenity” under reservation site NO. 136 (Original Site No. 485) with effect from 9th February 2017.

5. Mr. Shrishailya Deshmukh learned counsel for the Petitioner has placed reliance upon the judgment of the Division Bench of this Court in the case of Santu Sukhdeo Jaibhave v Nashik of which one of us (Kamal Khata, J.) was a member, to contend that the Development plan or revised development plan becomes final only after requisite procedure prescribed in Chapter III is followed. It is urged that this is a case in which a declaration under Section 6 of the Land Acquisition Act, 1894 has not taken place and consequently, steps to acquire the land in question were not adopted.

6. Per Contra, Mr. Vaibhav Patankar learned counsel for the Respondent Nos.[2] and 4 contended that the Petitioners had failed to furnish documents of title and consequently the Respondent Nos. 2 and 4 could not take steps for acquisition. He also contended that pursuant to the amendment to Section 127 of the 1 (2023) 2 BCR 469 = 2022 SCC OnLine Bom 5273 MRTP Act, the notice period was of 24 months and not 12 months and consequently, the judgment in the case of Santu Sukhdeo Jaibhave (supra) is not applicable in the facts of the present case.

7. We have heard learned counsel for the parties and perused through the papers and proceedings in the matter. In our view, the contentions as urged by the Respondents would go contrary to the principles laid down by the Supreme Court in the case of Girnar Traders[2] and reiterated by this Court in the case of Trilok Singh[3] and Santu Jaibhave (Supra). Pertinently, the Respondents have not disputed that the purchase notice was issued by the Respondents on 8th July 2015 i.e. prior to the notification issued on 9th January, 2017 whereby the Draft Revised Development Plan was implemented. In this regard, this Court in Santu Jaibhave (supra) held that: “25. The respondents have not disputed that the purchase notice was issued by the respondents on 14th July 2015 i.e. prior to the notification issued on 9th January, 2017 whereby the Draft Revised Development Plan was implemented. We are not inclined to accept the submission made by the learned counsel for the respondents that a purchase notice under Section 127 of the MRTP Act could not have been issued after the Draft Revised Development Plan was published though admittedly not sanctioned. In our view, the Draft Revised Development Plan cannot be elevated to the status of a final sanctioned plan under Section 31 of the MRTP Act.

26. Under Section 26 of the MRTP Act, a procedure is prescribed for preparation and publication of notice of Draft Development Plan. Under Section 28 of the MRTP Act, any person is entitled to raise objections and suggestions relating to

3 Trilok Singh Pahlajsingh Rajpal v Municipal corporation for Greater Mumbai & Ors Judgment dated 16th September 2022 in Writ Petition No. 2450 of 2016. Draft Development Plan within the time prescribed to the Planning Authority. Such objections or suggestions that are forwarded to the Planning Authority for consideration may cause modification or change of plan. A procedure is prescribed under Section 31 of the MRTP Act for sanctioning the Draft Development Plan. Under Section 31(6) of the MRTP Act, a Development plan which has come into operation shall be called the “final Development Plan” and shall, subject to the provisions of the said Act, be binding on the Planning Authority.

27. Under Section 38 of the MRTP Act, the Planning Authority is empowered to revise the Development Plan at least once in 25 years from the date on which a Development Plan has come into operation, and where a Development Plan is sanctioned in parts, a Planning Authority may revise the Development Plan, either wholly, or the parts separately, after carrying out, if necessary, a fresh survey and preparing an existing land-use map of the area within its jurisdiction. The provisions of Sections 22 to 28, 30 and 31 shall, so far as they can be made applicable, apply in respect of such revision of the Development Plan.

28. It is thus clear that even in respect of such revised development plan, a draft thereof has to be published followed by the objections and suggestions, as may be, filed by the person concerned, and after consideration of those objections and suggestions, final revised development plan is sanctioned. In our view, till such time, the draft Revised Development Plan is sanctioned finally and comes into effect in accordance with the provisions prescribed in the MRTP Act, the Draft Revised Development Plan has no legal sanctity and cannot be considered as final.

29. It is obvious that if any objections and suggestions opposing the Draft Revised Development Plan are accepted by the Planning Authority, such Draft Revised Development Plan would not be final in its original form. Admittedly the purchase notice issued by the petitioner under Section 127 was not issued after the sanction of Draft Revised Development Plan under Section 31 of the MRTP Act. The respondents thus cannot be allowed to urge that the notice issued by the petitioners under Section 127 of the MRTP Act after publication of the Draft Development Plan would not be a valid purchase notice. There is no substance in the submission made by the learned counsel for the respondents that the time to take steps by the respondents to acquire writ land would not commence from the date of receipt of purchase notice in view of the respondents already having published a Draft Revised Development Plan or that petitioners would have to issue a fresh notice under Section 127 of the MRTP Act after expiry of 10 years from the date of sanction of Draft Revised Development Plan. The submission advanced by the learned counsel for the respondents are ex facie contrary to the provisions prescribed in Chapter III of the MRTP Act. (emphasis supplied) Thus in our view, seeking title documents from the Petitioners can have no bearing and cannot be construed as steps taken pursuant to the purchase notice as acquisition can only be said to have commenced when the State Government takes steps for acquisition of land by publication of declaration under section 6 of the Land Acquisition Act, 1894 which is not done in the present case. Furthermore, the Supreme Court in the case of Municipal Corporation of Greater Mumbai v Dr. Hakimwadi Tenants’ Association[4] in paragraph 7, has held as under:—

8. In regard to the contention of the Respondent Nos.[2] and 4, that in view of the amendment in August 2015, lapsing would be on the expiry of 24 months i.e. on 7th July 2017 and not after twelve months on 7th July 2016 from the service of the purchase notice on 8th July 2015 as contended in the Purchase notice, in our view, such contention presumes that, an amendment to the period, as effected from 29th August 2015 would have a retrospective effect cannot be accpeted. Such amendment to MRTP Act as noted above is not retrospective in operation, consequently, the lapsing would be after twelve months i.e. on 7th July 2016. In any event, this contention does not advance the case of the Respondent, in view of the Respondents’ failure to publish a declaration under section 6 of the Land Acquisition Act. 1894.

9. We accordingly pass the following orderi. The Writ Petition is allowed in terms of prayer clause (a). ii. The State Government is directed to notify the lapsing of the reservation by an order to be published in the Official Gazette as per the requirement of Section 127 (2) of the MRTP Act, which shall be done as expeditiously as possible and preferably within a period of six months from today. iii. If fresh plans for building permission are submitted by the Petitioners, then the same be considered expeditiously. iv. Rule made absolute in above terms. No order as to costs. v. All parties to act on the authenticated copy of this Order. [KAMAL KHATA, J.] [G. S. KULKARNI, J.]