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Mohammed Mainuddin Sirajuddin … vs The Nashik Municipal Corporation … on 26 March, 2018

1-WP-11096-2015.DOC

Jsn

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 11096 OF 2015
1. Mohammed Mainuddin Sirajuddin
Kokani, Age major, Occu. Agri.

2. Mohiouddin Sirajuddin Kokani,
Age Major, Occu. Agri,
Resideing of 2782, Kokanipura, Old …Petitioners
Nashik, Nashik – 422 001.

Versus

1. The Nashik Municipal Corporation
Thru. The Commissioner,
Rajiv Gandhi Bhuvan, Nashik.

2. The Deputy Director,
Town Planning Department, Nashik
Municipal Corporation, Rajiv Gandhi
Bhuvan, Nashik.

3. State of Maharashtra. …Respondents

Mr. Sandip Dilip Shinde, for the Petitioners.
Mr. Shekhar Jagtap, i/b J. Shekhar Co. for Respondent
Nos. 1 and 2.
Mr. Manish M. Pabale, AGP for Respondent No.3.

CORAM: A.S. OKA
RIYAZ I. CHAGLA, JJ.

JUDGMENT RESERVED ON 28TH FEBRUARY 2018.

JUDGMENT PRONOUNCED ON 26TH MARCH 2018.

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O R A L J U D G M E N T :- (Per Riyaz I. Chagla J.)

1. Rule. Rule made returnable forthwith. Heard by consent

of the parties.

2. The Petitioners by this Petition are seeking an order

and direction from this Court directing the Respondents to

remove the Petitioners lands bearing Survey No. 754/1

admn.3H-24R and survey No.754/2 admn. 3H-25R situated

at Nashik (for short “the said lands”) from reservation for

garden as the reservation has lapsed as per the provisions of

the Maharashtra Regional Town Planning Act, 1966 (for short

“the Act”).

3. The Petitioners claim to be the owners of the said

lands. Under the Town Planning Scheme No. 2 which was

declared in the year 1994 and the Development Plan, the

total area of 32,000 sq. mtrs. including the said lands was

shown to be reserved for the purpose of garden. The

Petitioners state that as the Respondents had not taken any

steps for acquisition of the said lands for more than 10 years

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from the date of the Development Plan, the Petitioners issued

a Notice dated 1st August 2014 under Section 127 of the Act

calling upon the Respondents to initiate acquisition

proceedings within a period of one year from the date of the

Notice.

4. The Respondents by correspondence dated 8th June

2015 and 19th June 2015 called upon the Petitioners to

provide the requisite documents of title of the Petitioners in

the said lands. The Petitioners claim to have fulfilled these

requirements vide their letters dated 16th June 2015, 24th

June 2015 and 2nd July 2015. The Respondents by their

letter dated 7th June 2015 informed the Petitioners that they

would be conducting a survey of the said lands to be

acquired by them. The Petitioners initially informed the

Respondents of their willingness for the said acquisition by

letter dated 8th July 2015 and called upon the Respondent

No.1 – Corporation to decide the compensation to be

provided to the Petitioners under the Act. However, as the

Respondents failed to initiate proceedings under the Act for

acquisition of the said lands, the Petitioners claim that the

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reservation had lapsed upon the expiry of one year from the

date of issuance of the notice under Section 127 of the Act.

The Petitioners claim to be aggrieved by the action of the

Respondents as they have included the said reservation in

the fresh Development Plan published by the Respondents in

the year 2015. The Petitioners have thus filed the present

Petition seeking direction from this Court that the reservation

of the said lands have lapsed.

5. The learned counsel appearing for the Petitioners

submit that the said lands are no longer under reservation for

garden as the Respondents have failed to initiate the

requisite steps for acquisition of the said lands under Section

127 of the Act within the stipulated period from the date of

service of the purchase notice. He further submits that the

Petitioners had produced requisite documents of title viz. 7/12

extracts pursuant to the Respondents calling upon the

Petitioners to produce the same. He further submits that

appropriate direction be issued by this Court to the

Respondents to remove the said lands from reservation as

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the same have lapsed by the operation of Section 127 of the

Act.

6. The learned counsel appearing for the Respondent

Nos. 1 and 2 and the learned AGP for Respondent No. 3

have supported the impugned action of the Respondents and

have submitted that the Petitioners have failed to provide the

requisite documents when called upon to do so by the

Respondents. They further submit that the reservation of the

said lands have not lapsed and that the Notice issued by the

Petitioners is not a valid Notice as the Petitioners have failed

to comply with the conditions imposed by the Respondents.

7. We have considered the submissions of the parties and

we find that the Petitioners have issued a valid and proper

Notice under Section 127 of the Act. We further find that the

Respondents have failed to acquire or take any steps

towards acquisition of the said lands under Section 126 read

with Section 127 of the Act. The legislature while enacting

section 127 has deliberately used the word “steps” (in plural

and not in singular) which are required to be taken for

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acquisition of the land. On construction of section 126 which

provides for acquisition of the land under the Act, it is

apparent that the steps for acquisition of the land would be

the issuance of a declaration under section 6 of the Land

Acquisition Act. The Supreme Court in the case of

Shrirampur Municipal Council, Shrirampur v.

Satyabhamabai Bhimaji Dewkher, reported in 2013 (5)

Mh.L.J. (S.C.) 492 : (2013) 5 SCC 627 had observed as

under:-

42. We are further of the view that the majority in
Gimar Traders (2) had rightly observed that 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 1894 Act. Any other
interpretation of the scheme of sections 126 and
127 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.

43. The expression “no steps as aforesaid” used
in section 127 of the 1966 Act has to be read in
the context of the provisions of the 1894 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 the 1966 Act, or the

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1894 Act. By enacting sections 125 to 127 of the
1966 Act, the State Legislature has made a
definite departure from the scheme of acquisition
enshrined in the 1894 Act. But a holistic reading
of these provisions makes it clear that while
engrafting the substance of some of the
provisions of the 1894 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 time limit of ten years has
been prescribed in section 31(5) and also under
sections 126 and 127 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
no commenced for acquisition, reservation of the
land will be deemed to have lapsed. Shri
Naphade’s interpretation of the scheme of
sections 126 an d127, if accepted, will lead to
absurd results and the land owners 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 Article 300 -A of the Constitution.”

8. In the present case, admittedly a section 6 notification

was not issued. Hence adverting to the principles of law laid

down by the Supreme Court in the aforesaid decision it would

be required to be held that reservation of the land in question

had lapsed by operation of section 127 of the Act. We are of

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the view that subsequent reservation in the Development

Plan published by the Respondents in the year 2015 cannot

automatically revive the lapsed reservation.

9. We find no merit in the submissions of the

Respondents. We are of the view that the relevant document

of title viz. 7/12 extract showing the Petitioners to be the

owners of the said lands having been provided there has

been sufficient compliance with the conditions imposed by the

Respondents.

10. We accordingly pass the following order:-

(a) We order and direct the Respondents to notify as

expeditiously as possible and preferably within a

period of six months form today, by order

published in the Official Gazette as per Section

127(2) of the Act that the reservation of the

Petitioners’ lands viz. Survey No. 754/1

admeasuring 3 H – 24R and Survey No. 754/2

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admeasuring 3H 25R situated at Nashik has

lapsed.

(b) We order and direct the Respondents to forthwith

delete the Petitioners’ lands from reservation as

shown in the Development Plan in the year 2015.

(c) We order and declare that the reservation of the

Petitioners land having lapsed, the land has

become available to the Petitioners for

development as otherwise permissible in the case

of adjacent lands under the development plan.

(d) Rule is made absolute in the above terms with no

order as to costs.

(RIYAZ I. CHAGLA J.) ( A.S. OKA, J.)

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