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Fakira Razzak Rangraze And Others vs The State Of Maharashtra And … on 6 June, 2019

This Order is modified/corrected by Speaking to Minutes Order dated 09/07/2019

WP.2823-16.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2823 OF 2016
1. Fakira s/o. Razzak Rangraze,
Age : 46 years, Occ. Agri.
Business, r/o. Pandhari Mohalla
Kannad, Dist. Aurangabad
2. Shakur @ Javed s/o. Fakira
Rangraze, Age : 24 years,
Occ. and r/o. as above,
3. Afzal s/o. Razzak Rangraze,
Age : 41 years,
Occ. and r/o. as above ..Petitioners

Vs.

1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai – 32
2. The Director of Town Planning,
Maharashtra State,
Central Building, Pune
3. Assistant Director,
Town Planning,
Jubli Park, Aurangabad
4. The Municipal Council, Kannad,
Through its Chief Officer,
Municipal Council, Kannad,
Tq. Kannad, Dist. Aurangabad ..Respondents

Mr. P.F.Patni, Advocate for petitioner
Mr. P.S.Patil, AGP for respondent nos.1 to 3
Mr. S.S.Shete, Advocate for respondent no.4

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CORAM : PRASANNA B. VARALE
AND
R.G. AVACHAT, JJ.

DATE : JUNE 06, 2019

JUDGMENT (PER R.G. AVACHAT, J.) :-

Rule, made returnable forthwith. Heard

finally with consent of the parties.

2. A short question that falls for

consideration in this Writ Petition under SectionArticle 226

of the Constitution of India is, whether reservation

of the land owned by the petitioners in the

development plan prepared under the Maharashtra

Regional and Town Planning Act, 1966 (“the Act”, for

short) shall be deemed to have lapsed on account of

the land having not been acquired or no steps were

taken for acquisition thereof within the statutory

period from service of notice under Section 127 of

the Act.

FACTS :-

3. The petitioners are the owners of the land

Survey No.44/1 to the extent of 1 Hector 4 R situated

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at Kannad, Taluka Kannad, Dist. Aurangabad. The land

to the extent of 1.790 hector was reserved for garden

from land survey nos.41, 44 and 45. Out of the said

lands, land to the extent of 4977 sq. metres was

reserved from the land survey no.44/1 in the

development plan of 1992. The said plan was

sanctioned by D.T.P., Pune vide notification No.D.P.-

Kannad (second revised)/SANCTION/T.P.V.-V/2668- dated

08.05.1992. The reservation came to be recognised as

site no.15 for the purpose of garden.

4. Respondent no.4 – Kannad Municipal Council

is planning/development authority. For over 10 years,

after the land having been reserved, respondent no.4

has not taken any steps for acquisition of the said

land. The petitioners, therefore, issued purchase

notice under Section 127 of the Act on 23.09.2013.

In spite of service of notice, respondent no.4 did

not take steps towards acquisition of the land.

Similar notice had also been issued to respondent

no.2 – Director of Town Planning, State of

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Maharashtra. Respondent no.2 replied the notice with

the contention that the notice should have been

served on the local authority i.e. respondent no.4.

5. Respondent no.4 filed affidavit-in-reply

admitting to have received the notice issued under

Section 127 of the Act. It is the contention of

respondent no.4 that Kannad Municipal Council is a

Class-B municipal council. It did not receive much

grant from the Government for development of urban

area. It, therefore, did not have much amount to be

spared for garden development. It, however, proposes

to develop the garden on the land reserved for the

purpose in the near future. The municipal council,

by its letter dated 26.02.2014, sent a proposal to

the District Collector, Aurangabad, requesting for

initiation of acquisition proceeding. Since

respondent no.4 took steps towards acquisition of the

land, the petition is devoid of any merit.

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6. An affidavit-in-reply came to be filed also

on behalf of respondent no.2 contending that process

of acquisition of the land is underway.

7. Mr.Patni, learned Counsel for the

petitioners, would submit that the reservation of the

petitioners’ land stands lapsed on account of failure

of respondent no.4 to take appropriate steps towards

acquisition of the said land within the statutory

period from service of the notice under Section 127

of the Act. Learned Counsel would further submit that

mere making of the proposal to the Collector for

acquisition of the land cannot be considered to be a

step for acquisition of the land. In support of his

submissions, learned Counsel has relied on the

following authorities :-

(i) Poona Timber Merchants and Saw
Mill Owners Association Vs. State of
Maharashtra and ors., (2015)13 SCC 544;

(ii) SectionHasmukhrai V. Mehta Vs. State
of Maharashtra and ors., (2015)3 SCC
154;

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(iii) Shrirampur Municipal Council,
Shrirampur Vs. Satyabhamabhai Bhimaji
Dawkher and ors., AIR 2013 SC 3757;

(iv) State of Maharashtra Vs.
Bhakti Vedanta Book Trust and ors.,
(2013)4 SCC 676;

(v) Satish s/o. Soma Bhole Vs.
State of Maharashtra and ors.,
2010(6)All M.R. 65

8. Learned Counsel for respondent no.4 would,

on the other hand, submit that the process of

acquisition of land is in progress. The land,

therefore, could not be deemed to have been

dereserved. Learned Counsel, ultimately, urged for

dismissal of the petition.

9. Sections 126 and Section127 of the Act read thus:-

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,

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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 Sectionsection
113A] [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 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

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(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 vest
absolutely free from all encumbrances
in the Planning Authority, Development
Authority, or as the case 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 Sectionsection 49 [and except as
provided in Sectionsection 113A)] itself is of
opinion] that any land included in any
such plan is needed for any public
purpose, it may make a declaration to
that effect in the Official Gazette,
[in the manner provided in Sectionsection 19
of the Right to Fair Compensation and
Transparency in Land Acquisition,
Rehabilitation and Resettlement Act,
2013], in respect of the said land. The

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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 [Sectionsection 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 prevailing 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 undeveloped
area; and

(iii) in any other case, the market
value on the date of publication of the

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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 of
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 this sub-section, the
market value in respect of land
included in any undeveloped area
notified under sub-section (1) of
Sectionsection 40 prior to the commencement of
the Maharashtra Regional and 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 to sub-section (2) and
sub-section (3), if a declaration,] is
not made, within the period referred to
in sub-section (2) (or having been
made, the aforesaid period expired on
the commencement of the Maharashtra
Regional and Town Planning
[Section(Amendment) Act, 1993)], the State
Government may make a fresh declaration
for acquiring the land [under the
provisions of the Right to Fair

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Compensation and Transparency in
Land Acquisition, Rehabilitation and
Resettlement Act, 2013], in the manner
provided by sub-sections (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.]

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 ten 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 Sectionsection 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

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in the case of adjacent land under the
relevant plan.

[(2) On lapsing of reservation,
allocation or designation of any land
under sub-section (1), the Government
shall notify the same, by an order
published in the Official Gazette.]

10. In the case of Shrirampur Municipal Council

(Supra), it has been observed thus :-

Section 127 speaks of lapsing of
reservation. It lays down that if any
land reserved, allotted or designated
for any purpose specified in any plan
prepared and sanctioned under the 1966
Act is not acquired by agreement within
ten years from the date on which a
final Regional plan or final
development plan comes into force or if
proceedings for the acquisition of such
land under the 1966 Act read with SectionLand
Acquisition Act are not commenced
within that period, the owner or any
person interested in the land may serve
notice on the planning Authority,
Development Authority or Appropriate
Authority to that effect. That section
further lays down that if the land is
not acquired or no steps are commenced
for its acquisition within six months
from the date of service of notice, the
reservation etc. shall be deemed to
have lapsed and the land shall be
deemed to have been released from such
reservation etc. so as to enable the

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owner to develop the same. The
expression ‘no steps as aforesaid’ used
in S.127 of the 1966 Act has to be read
in the context of the provisions of the
SectionLand Acquisition Act and mere passing
of a resolution by the Planning
Authority or sending of a letter to the
Collector or even the State Government
cannot be treated as commencement of
the proceedings for the acquisition of
land under 1966 Act or the SectionLand
Acquisition Act. Steps towards the
acquisition would really commence when
the State Government takes active steps
for the acquisition of the particular
piece of land which leads to
publication of the declaration under
Section 6 of the Land Acquisition Act.

Any other interpretation of the Scheme
of Section 126 and Section127 of the 1966 Act
will make the provisions wholly
unworkable and leave the landowner at
the mercy of the Planning Authority and
the State Government. By enacting
Sections 125 to Section127 of the 1966 Act,
the State Legislature has made a
definite departure from the scheme of
acquisition enshrined in the SectionLand
Acquisition Act. But a holistic
reading of the provisions makes it
clear that while engrafting the
substance of some of the provisions of
the SectionLand Acquisition Act in the 1966
Act and leaving out other provisions,
the State Legislature has ensured that
the landowners/other interested
persons, whose land is utilized for
execution of the Development plan/Town
Planning scheme, etc., are not left
high and dry. This is the reason why

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time limit of ten years has been
prescribed in Section 31(5) and also
under Sections 126 and Section127 of the 1966
Act for the acquisition of land, with a
stipulation that if the land is not
acquired within six months of the
service of notice under Section 127 or
steps are not commenced for
acquisition, reservation of the land
will be deemed to have lapsed. If mere
passing of resolution or sending of
letter to Collector or State Govt. to
acquire land is considered to be step
for acquisition, it would lead to
absurd results and the landowners will
be deprived of their right to use the
property for an indefinite period
without being paid compensation. That
would tantamount to depriving the
citizens of their property without the
sanction of law and would result in
violation of SectionArticle 300A of the
Constitution.

In the above decision, the Hon’ble Supreme Court in

paragraph 19, further observed thus –

19. ……………………………..
SectionIn Girnar Traders v. State of
Maharashtra. Speaking for the majority,
P.P. Naolekar, J., referred to the
relevant provisions of the 1966 Act
including Sections 126 and Section127, and
observed:

“31. Section 127 prescribes two time
periods. First, a period of 10 years

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within which the acquisition of the
land reserved, allotted or designated
has to be completed by agreement from
the date on which a regional plan or
development plan comes into force, or
the proceedings for acquisition of such
land under the MRTP Act or under the SectionLA
Act are commenced. Secondly, if the
first part of Section 127 is not
complied with or no steps are taken,
then the second part of Section 127
will come into operation, under which a
period of six months is provided from
the date on which the notice has been
served by the owner within which the
land has to be acquired or the steps as
aforesaid are to be commenced for its
acquisition. The six-month period shall
commence from the date the owner or any
person interested in the land serves a
notice on the planning authority,
development authority or appropriate
authority expressing his intent
claiming dereservation of the land. If
neither of the things is done, the
reservation shall lapse. If there is no
notice by the owner or any person
interested, there is no question of
lapsing reservation, allotment or
designation of the land under the
development plan. Second part of
Section 127 stipulates that the
reservation of the land under a
development scheme shall lapse if the
land is not acquired or no steps are
taken for acquisition of the land
within the period of six months from
the date of service of the purchase
notice. The word “aforesaid” in the
collocation of the words “no steps as

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aforesaid are commenced for its
acquisition” obviously refers to the
steps contemplated by Section 126 of
the MRTP Act.

If no proceedings as provided under
Section 127 are taken and as a result
thereof the reservation of the land
lapses, the land shall be released from
reservation, allotment or designation
and shall be available to the owner for
the purpose of development. The
availability of the land to the owner
for the development would only be for
the purpose which is permissible in the
case of adjacent land under the
relevant plan.

11. Let us appreciate the factual matrix of the

case in the backdrop of the aforesaid legal position.

Admittedly, the writ land has been reserved

for garden in the development plan of the town,

Kannad, in August, 1992. During the period of ten

years thereafter, the writ land has neither been

acquired nor any step has been taken for its

acquisition by Kannad Municipal Council (planning/

development authority). The petitioners issued

purchase notice under Section 127 of the Act on

23.09.2013 to respondent no.4 – Kannad Municipal

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Council. Receipt of the notice and its validity as

well, are the facts not in dispute. In view of the

statutory mandate of Section 127 of the Act, Kannad

Municipal Council was supposed to acquire the land or

take steps towards its acquisition within a period of

one year from the date of receipt of the notice. As

has been held by the Apex Court in the case of

Shrirampur Municipal Council (Supra), mere passing of

a resolution by the Planning Authority or sending of

a letter to the Collector or even the State

Government cannot be treated as commencement of the

proceeding for the acquisition of land. Steps towards

the acquisition would really commence when the State

Government takes active steps for the acquisition of

the particular piece of land which leads to

publication of the declaration under Section 6 of the

Land Acquisition Act.

12. Admittedly, Kannad Municipal Council

(planning/development authority) had simply forwarded

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a proposal to the Collector, Aurangabad, requesting

for initiation of acquisition proceedings of the writ

land. Undisputedly, no declaration under Section 6 of

the Land Acquisition Act has been published within a

period of one year from the date of receipt of the

notice and even, till date. The contention of the

respondent – Kannad Municipal Council that it is

short of funds to acquire the land can, in no way, be

a ground to delay the acquisition.

13. As such, there is non-application of the

provisions of Section 127 of the Act. The writ land,

therefore, stands released from the reservation and

would be available to the petitioners for being used

for the purpose of development as otherwise

permissible in the case of adjacent land under the

relevant plan. The State Government shall notify the

lapsing of the reservation by an order to be

published in the official gazette.

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14. The Writ Petition is allowed in the

aforesaid terms. Rule is made absolute accordingly.

[R.G. AVACHAT, J.] [PRASANNA B. VARALE, J.]

kbp

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