Shri Namdeorao G Gadkh v. Nasik Municipal Corporation for Greater Mumbai

2. The present petition is filed under Article 226 of the Constitution of India for a Writ of mandamus for a declaration that the reservation of the land belonging to the petitioner stood lapsed as no steps have been taken by the respondents within a period of 6 months from the date of Purchase Notice given to the respondent No. 1 under section 127 of the Maharashtra Regional Town Planning Act. (referred as “MRTP Act”).

3. The petitioners have also prayed for a declaration that the acquisition proceedings initiated by the respondents on the basis of the notification dated 16th June 2006 under Section 6 of the Land Acquisition Act stood lapsed, and consequently for return of possession of the land.

BRIEF FACTS:

4. The petitioners are the owners of the land bearing Survey NO. 197/1K/B/1 & 2 admeasuring 81 Ares situated and abutting National Highway No.3, Bombay Agra Road, Nashik (referred as “the writ land”). The writ land had initially been notified in the Development Plan as “reserved for Stadium” and “60 ft. vide service road” under reserved No.294 on 28th June 1993.

5. It is the case of the petitioners that they could not develop their land on account of the reservation for a period of 10 years i.e. up to 28th June 2003 within which period the respondents had a statutory obligation to acquire the said land. Since, even after the expiry of the statutory period, the respondents failed to acquire or even take steps towards the acquisition, the petitioners through their Advocate issued a wp-6331-08 4/11 Purchase Notice dated 5th December, 2003 under section 127 of MRTP Act calling upon the respondents to acquire the writ land.

6. It is the case of the petitioners that no steps were taken for the purpose of acquisition of the said land within a period of 6 months from the reciept of such notice, and thus the reservation stood lapsed.

7. Being aggrieved by the inaction on the part of the respondents in not notifying the lapsing of reservation of the writ land under section 127 of the MRTP Act, even though the statutory period ended on 5th June 2004 and for various other reliefs, the petitioners filed the present Petition on 22nd July 2008.

8. A reply is filed by one Ramchandra B Pawar on behalf of respondents no.2 to 4 on 20th September 2008. It is the case of the Respondent that the statutory period of limitation for finalising the award is a period of 2 years under the Land Acquisition Act. There is no limitation for finalising the award under section 126 (4) of MRTP Act read with section 6 of Land Acquisition Act. According to the Respondents the land acquisition proceedings had been initiated within a period of 6 months of service of the Purchase Notice by communicating the land acquisition proposal bearing sr. no. 197p by the issuance of letter no. 426 of 2004 dated 24th May 2004 by the Nashik Municipal Corporation. It is the case of the Respondents that after the compliances were complied with from TILR, ADTP and ULC, a notification under section 6 of the Land Acquisition Act was published on 29th June 2006 and joint measurements maps were resubmitted by the Assistant Director wp-6331-08 5/11 of Town Planning to, Taluka Inspector of Land Record by letter bearing No. ADTP-1798, dated 29th August 2007. Thereafter, draft award was prepared on 10th June 2008 and sent to the Collector Nasik for sanction on 17th June 2008. Subsequently, a rectification notification was published on 1st May 2008. Consequently, in view of the aforesaid facts, the petition deserves to be dismissed.

9. Mr. Joshi the learned counsel for the petitioners, drew our attention to the alleged steps taken by the respondents after the issuance of the Purchase Notice dated 5th December 2003. He submitted that a notice dated 19th July 2006 was addressed by the respondent No. 2 under Section 9 (1) calling upon the petitioners to claim compensation under section 90 of the MRTP Act. The petitioners’ Advocate, by their letter dated 3rd August 2006 responded thereto and not only claimed the amount but contended that the reservation had lapsed. He submitted that the acquisition proceedings have not been completed even thereafter by the respondents.

10. The Learned counsel submitted that the respondents overlooked the petitioners’ advocate’s response and issued a corrigendum dated 24th April 2008 to the effect that ‘81 Ares’ is to be read as ’80 Ares’. The petitioners once again issued a final letter dated 24th June 2008 reiterating that the acquisition had lapsed.

11. The learned counsel relied on the judgement of Girnar Traders vs State of Maharashtra[1] in support of his contentions that the 2007 (7) SCC 555 wp-6331-08 6/11 reservation had lapsed since the Notification under Section 6 of the Land Acquisition Act or under Section 127 of the MRTP Act had not been issued within a period of six months from the date of the receiving of the Purchase Notice.

12. The learned counsel relied on the judgement of the Supreme Court in the case of Hindustan Oil Mills versus Special Deputy Collector, Nashik to substantiate his contention that the last notification would be the effective notification for considering the claim for compensation since the subsequent notification was such that would change the entire complexion of the matter and was not merely rectifying errors in the earlier notification. He accordingly submitted that date of the last notification would be relevant and consequently in the alternative, land not being returned to the Petitioners they would be entitled to compensation as per the Act of 2013. He submitted that inspite of several representations to the Respondents during the pendency of the petition showing willingness to even accept compensation under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “Act of 2013”) the Respondents had failed to acquire the land.

13. The learned counsel relied upon the following judgements in support of his case: a. Shrirampur Municipal Council, Shrirampur vs Satyabhamabai Bhimaji Dawkher and ors.[2] wp-6331-08 7/11 b. Godrej and Boyce Manufacturing Company Ltd versus State of Maharashtra and others[3] c. Shri Ashok Karbhari Borade versus State of Maharashtra[4] d. Shree Vinayak Builders & Developers V/s The State of Maharashtra & Ors.[5]

14. Mr. Apte learned counsel for the Respondents on the other hand submitted that the development plan was published on 26th August 1993 as Reservation no. 294 for Stadium and Road. Land acquisition was complete and compensation was paid. He submitted that although the Purchase notice was issued by the petitioner on 5th December 2003 and the notification was issued on 16th June 2006, the present petition was filed only on 22nd July 2008 and consequently there was gross delay coupled with intervening circumstances. It was submitted that there was no explanation for delay of 5 years in filing of the petition and on that ground alone, the petition deserves to be dismissed. The learned counsel drew our attention to the cause title of the petition and the notice issued to submit that only 2 owners out of the 5 persons in the petition claiming ownership had issued the purchase notice and consequently the same was invalid. He further submitted that there was no lapsing since a draft award was prepared on 10th June 2008 by the SLAO and sent to the Commissioner. He submitted that the acquiring body is the corporation

Writ petition No. 12999 of 2017 Writ petition No. 2231 of 2019 wp-6331-08 8/11 and hence they had to deposit the money. He submitted that the respondents had taken adequate steps and therefore there was no lapsing.