Anil Mohanlal Vyas And Others v. The State Of Maharashtra Thr Secretary And Others
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD 980 WRIT PETITION NO.4706 OF 2021 1.
Anil Mohanlal Vyas Age: 46 years, Occu.: Business.
2.
Mahesh Mohanlal Vyas Age: 48 years, Occu.: Agriculturist.
3.
Bhagwatiprasad Mohanlal Vyas Age: 60 years, Occu.: Agriculturist.
4.
Hemraj Mohanlal Vyas Age: 57 years, Occu.: Agriculturist.
5.
Ashok Narsingdas Vyas Age: 54 years, Occu.: Agriculturist.
6.
Omprakash Mohanlal Vyas Age: 71 years, Occu.: Agriculturist.
7.
Govardhan Mohanlal Vyas Age: 73 years, Occu.: Agriculturist.
All R/o. Near New Bridge, Ramadevi Building, Old Mondha, Nanded, Taluka & District Nanded.
..PETITIONERS
VERSUS
1.
The State of Maharashtra, Through Secretary, Urban Development Department Mantralaya, Mumbai.
2.
The District Collector, Nanded, Taluka & District Nanded.
3.
Assistant Director, Town Planning Department, Nanded.
4.
Nanded Waghala Municipal Corporation, Through its Commissioner, Nanded Waghala Municipal Corporation, Nanded, Taluka & District Nande...RESPONDENTS
(2) ...
Mr. Sushilkumar H. Tripathi, Advocate for the Petitioners.
Mr. K. N. Lokhande, AGP for Respondents-State. Mr. R. K. Ingole, Advocate for Respondent No.4. ...
CORAM : S. V. GANGAPURWALA & R. N. LADDHA, JJ.
DATED : 25th AUGUST, 2021.
ORAL JUDGMENT (Per: S. V. Gangapurwala, J.):- 1.
Rule. Rule made returnable forthwith.
With the consent of parties, matter is taken up for final hearing at the stage of admission.
2.
The land of petitioners bearing Gat No.125, 127/2 and 129 was reserved under the revised development plan dated 03.08.2006 that came into force with effect from 17.09.2006 for the purpose of garden, primary school, playground and D.P. road. The petitioners issued notice under Section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as 'M.R.T.P. Act') on 05.02.2019. It is served upon respondent-Municipal Corporation on the same date. No steps are taken for acquisition. According to petitioners reservation stands lapsed.
3.
Mr. Ingole, learned counsel submits that, financial position of respondent-Municipal Corporation is not good. The respondent had agreed to give T.D.R. to petitioners. The steps could not be taken for acquisition.
(3) 4.
The ownership of petitioners and the reservation on the said land is not disputed. 5.
No further steps are taken since the year 2006 to use the said land or to acquire it by the Planning Authority. Section 127 of the M.R.T.P Act is a fetter on the power of the eminent domain. As no declaration under Section 126 of M.R.T.P. Act read with Section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has been issued within the stipulated period of two years, the reservation by operation of statute stands lapsed.
6.
The garden and playground are the lungs of the city. They are necessary for maintaining the environmental and ecological balance. The Planning Authority has to make every endeavour to acquire the said land. Reference can be had to the judgment of the Apex Court in Municipal Corporation, Greater Bombay Vs. Hiraman Sitaram reported in 2017 SCC Online SC 1739.
7.
The right to property though is not a fundamental right still is a constitutional right. Nowadays, right to property is brought within the contours of Human right. The balance will have to be struck between the ownership rights of petitioners and maintaining the ecology and the environment.
(4) 8.
In light of the above, we pass the following order:
ORDER
a. The reservation of the petitioners' land of D.P. road, primary school and playground on land bearing Gat No.125, 127/2 and 129 situated at Nanded stands lapsed.
b. Though, we have observed that, reservation stands lapsed, still considering that the reservation is for the garden and playground and also for the D.P. road, petitioners shall not use the said land for any purpose for a period of one year. Within the period of one year, the Planning Authority may take steps to acquire the property.
c. If within a period of one year, Planning Authority does not take further steps, then petitioners would be entitled to use the land as adjacent user. Thereafter, the State Government shall issue Notification under Section 126(2) of the M.R.T.P. Act.
9.
Rule accordingly made absolute in above terms.
(R. N. LADDHA) (S. V. GANGAPURWALA) JUDGE JUDGE Devendra/August-2021