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CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7635 OF 2016
Shri. Rafiq Ahmed Saeed Qureshi through POA Saeed Ahmed Abdul
Hamid Qureshi .. Petitioner/Applicant
& Ors. .. Respondents
Mr. Pramod N. Joshi a/w Mr. Pratik Rahade, Ms. Rukhmini Khairnar, for the petitioner/Applicant.
Mr. Rahul S. Kate, for respondent No.1 – Malegaon Municipal
Corporation.
Mr. A. I. Patel – Addl G.P. a/w Mr. A. A. Alaspurkar – AGP for
Respondents – State.
DATED : 16TH SEPTEMBER, 2022.
ORAL JUDGMENT
1. Rule. Learned counsel for the respondents waive service. The petitioner has filed this writ petition under Article 226 of the Constitution of India inter alia praying for a declaration that reservation of Site No.275, in respect of Primary School and Play Ground in a land belonging to the petitioner being Survey No.109/2B situated at Malegaon, District Nashik, stands lapsed and Respondent No.1 be directed to treat the same as lapsed.
2. The petitioner also seeks a declaration that the letter dated 27th January 2015, issued by the respondent No.1 is barred by limitation and to be quashed and set aside. In prayer clause (c), the petitioner seeks an order and direction against the respondent No.1 to pay the amount of compensation alongwith the statutory benefits of interest etc. in respect of an area of 1800 sq.mtrs. of the land belonging to the petitioner, which is being utilized by respondent No.1 for D.P. Road.
3. Interim Application No.4179 of 2021 is filed by the petitioner inter alia praying for an interim relief and seeking an order and direction against the respondent No.1 to protect the land of the petitioner from being misutilized and/or to take steps to remove temporary encroachment. sns
4. Interim application No.4180 of 2021 is filed praying for an order and direction against the respondent No.1 to take immediate steps to finalize the amount of compensation in respect of the area acquired and has been in their possession for the purpose of D. P. Road and pay the same to the petitioner under the provisions of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for short “the Act of 2013”).
5. Some of the relevant facts for the purpose of deciding the writ petition are as under: It is the case of the petitioner that he owns land admeasuring 5800 sq. mtrs., bearing Survey No.109/2B, which was shown to be reserved in the second revised development plan of Malegaon Municipal Corporation by way of Site No.275 for Primary School and Play Ground.
6. On 10th September, 2012, the petitioner sent a purchase notice under Section 49 of the Maharashtra Regional Town Planning Act, 1966 (for short “the MRTP Act”) calling upon the State Government to confirm the said notice. On 5th March, 2013 the State Government, confirmed the said purchase notice by sending an intimation to that effect to the petitioner. In the said sns letter, the State Government directed the Municipal Corporation to complete the acquisition proceedings of the said land within a period of one year i.e. on or before 4th March, 2014. The said direction was issued under Section 49 (7) of the MRTP Act.
7. It is the case of the petitioner that the respondent No.1 – Corporation however did not take any steps pursuant to the said letter of confirmation of the purchase notice as directed by the State Government on 5th March, 2013 within a period of one year i.e. on or before 4th March 2014 and thus the reservation of the said land should stand lapsed.
8. On 2nd January, 2014 and 17th July, 2014, the petitioner made representations to the respondents. On 23rd July 2014, Town Planning Department of the Municipal Corporation intimated the petitioner that the purchase notice had already been confirmed and that all the necessary correspondence should be made to the Malegaon Municipal Corporation. On 24th July, 2014, Town Planning Department addressed a similar letter to the petitioner.
9. On 28th August, 2014, Municipal Corporation addressed a letter to the petitioner that since the purchase notice had been confirmed, the Municipal Corporation had sent a proposal to the sns Collector, Nashik, on 7th May 2013. On 5th November, 2014, the Sub-Divisional Officer, Malegaon sent a letter to the petitioner stating that in view of the Act of 2013 which had come into force with effect from 1st January, 2014, the proposal sent for acquisition of land belonging to the petitioner stood lapsed. It was contended that since the proposal stood lapsed, no further proceedings could be initiated in respect of the acquisition of land belonging to the petitioner.
10. On 30th December, 2014 and 5th January, 2015 the petitioner made representations to the respondents and requested them to declare the said reservation lapsed in respect of the petitioner’s land. On 27th January, 2015, respondent No.1 intimated that a new proposal for acquisition of the land belonging to the petitioner was again being sent to the Collector, Nashik.
11. It is the case of the petitioner that, the petitioner was called upon by the respondent No.1 to hand over an area of 1800 sq.mtrs. voluntarily for the purpose of the said D. P. Road, which was abutting the reservation Site No.275 and was passing through the same land belonging to the petitioner bearing Survey no.109/2B. According to the petitioner, respondent No.1 had sns assured the petitioner to pay the requisite amount of compensation for handing over the portion of the said land. The petitioner accordingly handed over portion of the said land to the Respondent No.1 on 7th June 2005. Respondent No.1 however, neither decide nor pay up any compensation for the said land though the same is being used as D. P. Road. The petitioner thus filed this petition for various reliefs.
12. Mr. Joshi, learned counsel for the petitioner invited our attention to the purchase notice issued by his client on 10th September, 2012 under Section 49 of the MRTP Act and the order passed by the State Government on 5th March, 2013 confirming the said purchase notice and directing the Municipal Corporation to take steps to complete the acquisition proceedings for the same within a period of one year i.e. on or before 4th March, 2014 under Section 49(7) of the MRTP Act. He submitted that the Municipal Corporation however, did not take any steps to acquire the said land admeasuring (4760 sq.mtrs.) out of 5800 sq.mtrs. within the time prescribed. It is submitted that the said land admeasuring 4760 sq.mtrs. which was reserved in the development plan thus, stood lapsed.
13. Insofar as the area admeasuring 1800 sq.mtrs. (now sns corrected as 1040 sq.mtrs.) is concerned, it is submitted that though an oral assurance was made by respondent No.1 that compensation would be paid to the petitioner in respect of the said land, no compensation has been awarded till date. He submitted that respondent No.1 is required to pay compensation in respect of the said land admeasuring 1040 sq.mtrs. under the provisions of the Act of 2013.
14. Learned counsel for the petitioner invited our attention to the statement made before this Court that as far as prayer clause
(c) of the petition is concerned, petitioner had prayed for compensation in respect of area of 1800 sq.mtrs. of land now corrected as 1040 sq.mtrs. which was being utilized by respondent No.1 for D. P. Road, the petitioner is agreeable to accept compensation in respect of the said land under the provision of the Act of 2013. This Court accordingly directed the Municipal Corporation to make a statement before this Court whether the Corporation was agreeable to pay compensation to the petitioner for the land admeasuring 1040 sq.mtrs., which is already being used as D. P. Road under the provisions of 2013 Act.
15. It is submitted by the learned counsel for the petitioner that sns the possession of the land admeasuring 1040 sq.mtrs. has been already handed over by the petitioner as far back as in the year
2005. At this stage, respondent No.1 shall be directed to pay the sum of Rs. 26,72,060/- which is computed by respondent No.1 itself as an interim compensation without prejudice to the rights and contentions of the petitioner to seek enhancement.
16. Mr. Rahul Kate, learned counsel for the Municipal Corporation, on the other hand, submitted that the petitioner cannot be granted relief for declaration of the land admeasuring 1040 sq.mtrs. out of the writ land as standing lapsed. It is submitted by the learned counsel that the respondent No.1 has already taken steps by sending a proposal on 7th May 2013 to the Collector, who was requested to acquire writ land under the provisions of Section 6 of the Land Acquisition Act, 1894 read with Section 126 of the MRTP Act. The Collector – Nashik by an order dated 16th December, 2013 directed the Sub – Divisional Officer, Malegaon Region, Malegaon to complete the acquisition process of the said land.
17. It is submitted that Sub-Divisional Officer, Malegaon by letter dated 5th November, 2013 requested respondent No.1 - Corporation to send a new proposal in accordance with the Act of sns
2013. On 27th January, 2015 the respondent No.1 – Corporation submitted a fresh proposal to the Collector, Nashik for the land acquisition. The said proposal was received by office of Collector on 30th January 2015.
18. It is submitted that, there were constant communications between respondent No.1 and the Collector, Nashik in respect of the acquisition of the said land. The Collector informed the respondent No.1 that after receipt of the proposal and the compliance under Section 52 (A) of the Land Acquisition Act, 1894 made, appropriate action would be taken.
19. Insofar as the area of 1040 sq.mtrs. handed over by the petitioner to respondent No.1 for the purpose of D. P. Road is concerned, learned counsel for the respondent No.1 does not dispute that the petitioner had handed over the said land for the purpose of construction of D. P. Road. He relied upon the agreements in this regard annexed to the affidavit in reply. It is submitted that till date the State Government has not finalized the compensation for the acquisition of the said land surrendered by the petitioner for the purpose of constructing D. P. Road. Since the proposal of compensation of the entire land is pending before the Government, there is no question of making any payment by the sns respondent No.1 to the petitioner at this stage.
20. Learned counsel for the petitioner placed reliance on the judgment in the case of Chhabildas Versus State of Maharashtra and Others[1] in support of his submission that since the petitioner has not issued separate notice under Section 127 of the MRTP Act which was required to be issued even after the purchase notice issued by the petitioner under Section 49 came to be absolute, there is no question of the lapsing of reservation.
21. Mr. Joshi, learned counsel for the petitioner in his rejoinder argument also relied upon the judgment in the case of Chhabildas (supra) and submitted that the said judgment would apply to the notices issued under Section 49(1) after pronouncement of the said judgment and not to the cases where notice under Section 49 was already issued prior to the date of pronouncement of the said judgment and confirmed by the State Government.
REASONS AND CONCLUSIONS
22. It is not in dispute that the area admesauring about 5800 sq.mtrs. out of survey No.109/2B was shown as reserved in the Second Revised Development Plan of Nashik Municipal Corporation by way of Site No.275 for primary school and play ground. The State Government has admittedly confirmed the sns purchase notice dated 10th September 2012 by an order dated 5th March, 2013 under Section 49(7) of the MRTP Act and directed the respondent No.1 to take steps to acquire the land which was the subject matter of the said notice. The period of one year expired on 4th March 2014.
23. It is the case of the respondent No.1 in affidavit in reply that respondent No.1 had sent a proposal on 7th May, 2013 to the Collector, Nashik requesting to acquire the said land under Section 6 of the Land Acquisition Act read with Section 126 of the MRTP Act. Respondent No.1 thereafter submitted a new proposal in response to the letter dated 27th January 2015 received from Sub-Divisional Collector, Malegaon under the provisions of the Act of 2013. It is not in dispute that till date no notification has been issued under Section 19 of the Act of 2013 by the Municipal Corporation.
24. This court has delivered a judgment today, in writ petition No.2450 of 2016 in the case of Trilok Singh Pahlajsingh Rajpal Versus Municipal Corporation for Greater Mumbai[2] and has dealt with similar facts. This Court after adverting to the judgments of the Supreme court in the case of Girnar Traders versus State of
2 Writ petition No.2450 of 2016 sns Maharashtra[3], Shrirampur Municipal Council, Shrirampur versus Satyabhamabai Bhimaji Dawkher and others[4], Bhavnagar University versus Palitana Sugar Mills Private Limited and Others[5], Godrej and Boyce Manufacturing Co. Ltd. versus State of Maharashtra and others[6] and various others judgments held that if notification under Section 6 of the Land Acquisition Act is not published within the time prescribed as the statutory period, the reservation stood lapsed. This court held that since no steps were taken by the authority, reservation of the said land lapsed, subsequent acts were taken by the authority after lapsing of reservation. It is held that unless notification under Section 6 of the Land Acquisition Act was issued, the other steps alleged to have been taken by the respondents would not amount to taking steps so as to prevent the lapsing of the reservation. The principles laid down by this Court in the case of Trilok Singh Pahlajsingh Rajpal (supra) apply to the facts of this case. We are bound by these judgments.
25. The steps taken by the respondent No.1 commencing from 7th March, 2013, would be of no significance as no notification was issued prior to 4th March 2014 under Section 19 of the Act of sns
2013. In our view, the reservation of Site insofar as area admeasuring 4760sq. Mtrs. of the land of the petitioner is concerned, has thus lapsed.
26. Insofar as the judgment of the Supreme Court in the case of Chhabildas (supra) relied upon by Mr. Kate, learned counsel for respondent No.1 is concerned, a perusal of the said judgment indicates that it is made clear by the Supreme Court that in all future cases that may arise under the provisions of Section 49, the drift of Section 127 must be followed i.e. after 10 years on the date of publication of the reservation, the second purchase notice must be served in accordance with the provisions of Section 127 of the MRTP Act.
27. In the fact of this case, purchase notice was issued on 10th September, 2013 and was made absolute by the State Government on 5th March, 2013. The view taken by the Supreme Court in the case Chhabildas (supra) did not apply to the facts of this case and more particularly in view of the clarification issued by the Supreme Court in paragraph No.30 of the said judgment.
28. Insofar as the compensation in respect of the area admeasuring 1040 sq.mtrs. of the land handed over by the petitioner to respondent No.1 for construction of D. P. Road is sns concerned, a perusal of the affidavit in reply filed by respondent No.1 clearly indicates that the State Government had not finalized the amount of compensation for acquisition of the said land. The proposal of acquisition for the entire land is pending before the State Government. Since the land admeasuring 1040 sq.mtrs. of land is handed over to the State Government and is being used, there is no question of the State Government refusing to pay the compensation in respect of that portion of the land. The offer of TDR instead of compensation given by the respondent No.1 by their letter dated 2nd December, 2016 was rejected by the petitioner on 20th December, 2016.
29. A perusal of the averments in paragraph No.77 of the affidavit filed by the respondent No.1 indicates that the respondent No.1 - Corporation had itself offered a sum of Rs. 26,72,060/- with the letter dated 17th December, 2016 annexed at page No.77 to the petition taking into consideration the ready recknor rates of 2016-17 according to respondent No.1.
30. We are inclined to accept the request made by the learned counsel for the petitioner that since the petitioner had already handed over the possession of the said strip land of 1040 sq.mtrs. to the Municipal Corporation for construction of D. P. Road, the sns respondent No.1 should be directed to pay at least the said amount to the petitioner within such time as this Court may direct to minimize the hardship caused to the petitioner without prejudice to rights and contentions of the petitioner at this stage.
31. There is no dispute that in respect of the said area admeasuring 1040 sq.mtrs., the respondent No.1 has not paid any amount till date under the provisions of the Act of 2013. In our view, interest of justice would be met if we direct the Collector, Nashik to expedite the process of acquisition under the provisions of the Act of 2013.
32. We accordingly pass the following order:- O R D E R a) It is declared that the reservation of Site No.275 in respect of the Primary School and Play Ground of the land bearing Survey No.109/2B situated at Malegaon, District Nashik, stood lapsed to the extent of land ademeasuring 4760 sq.mtrs. The Collector is directed to issue requisite notification under Section 127(2) within a period of six months from today. If the petitioner submits any plan for development on the said land in respect of its reservation to be lapsed, respondent No.1 – Corporation is directed to consider such plan expeditiously. sns b) Respondent No.1 is directed to pay the sum of Rs. 26,72,060/- to the petitioner within four weeks weeks from today as and by way of interim compensation as offered in the letter dated 17th December, 2016. The amount can be accepted by the petitioner without prejudice to the right and contentions of the petitioner. It is made clear that if the petitioner is aggrieved by the award that would be made by the Collector to be made under the provisions of Act of 2013, the petitioner would be at liberty to apply to the Collector to make a reference for the determination of the Competent Authority under Section 64 of the Act of 2013. c) The Collector, Nashik is directed to issue notification under Section 19 of the Act of 2013 in respect of the land admeasuring 1040 sq.mtrs. within eight weeks from today and to complete the entire process of acquisition within the time prescribed under the provisions of the said Act. d) Writ petition is allowed in aforesaid terms. Rule is made absolute. No order as to costs. Parties to act upon the authenticated copy of this Order. sns e) The Interim Application No.4180 of 2021 and Interim Application No. 4179 of 2021, do not survive and are disposed off accordingly. (KAMAL KHATA, J.) (R.D.DHANUKA, J.) sns