Ramesh Tulshiram Patil v. The State Of Maharashtra And Others

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.5163 OF 2019 Ramesh Tulshiram Patil, Age: 69 years, Occu: Pensioner, R/o. Tulshidhan Nagar, Behind govt. Technical High School, Bhusaval, Tal. Bhusaval, Dist. Jalgaon ..PETITIONER

VERSUS

1.

The State of Maharashtra, Through the Secretary, Minishtry of Urban Development, Mantralaya, Mumbai-32 2.

Director of Town Planning, Maharashtra State, Pune 3.

Deputy Director of Town Planning, Nasik Division, Nasik 4.

Assistant Director, Town Planning, Jalgoan 5.

District Collector, Jalgaon, Dist. Jalgoan 6.

Municipal Council, Bhusaval, Through its Chief Officer, Bhusaval, Tal. Bhusaval, Dist. Jalgaon ..RESPONDENTS Mr A. P. Bhandari, Advocate for petitioner;

Mr S P. Sonpawale, A.G.P. for respondent Nos.1 to 5; Mr B. S. Deshmukh, Advocate for respondent No.6 CORAM : PRASANNA B. VARALE AND ANIL S. KILOR, JJ.

Date of reserving the Judgment : 12th December, 2019

(2) Date of pronouncing the Judgment : 21st October, 2020 JUDGMENT (PER : PRASANNA B. VARALE, J) Heard Mr Bhandari, learned Counsel appearing on behalf of the petitioner, learned AGP appearing for respondent Nos.1 to 5 and Mr Deshmukh, learned Counsel appearing on behalf of respondent No.6. 2.

The petitioner is before this Court with the following prayers : "(B) The Honourable Court be pleased to issue writ of mandamus or any other appropriate writ, directing the respondents to release land bearing Survey No.177/1-C, situated at Bhusaval Shivar, Taluka Bhusaval, Dist. Jalgaon, situated within the Municipal Limits of Bhusaval to the extent of an area of 1993.56 square meters reserved at Site No.61 for "Shopping Complex and Vegetable Market", in the Revised Regional Plan for Bhusaval. (C) The Honourable Court be pleased to issue writ of Mandamus or any other appropriate writ, directing the respondent no. 1 to issue a notification in terms of section 127 (2) of Maharashtra Regional and Town Planning Act, 1966 (for short, 'the Act'), thereby notifying release of

(3) land bearing survey No.177/1-C, situated at Bhusaval shivar, Taluka Bhusaval, Dist. Jalgaon, situated within the Municipal Limits of Bhusaval to the extent of an area of 1993.56 square meters reserved at Site No.61 for "Shopping Complex and Vegetable Market", in the Revised Regional Plan for Bhusaval."

3.

It is the submission of learned Counsel for the petitioner that the petitioner is a permanent resident of town Bhusaval, District Jalgaon and is owner of land bearing Survey No.177/1-C, situated at Bhusaval Shivar, Taluka Bhusaval, Dist. Jalgaon. The said property is ancestral property of the petitioner and in the partition of the joint family properties effected in the year 1984, it was allotted to the share of the petitioner. The said land is admeasuring 7200 square meters. Part of the property i.e. area of 5212.10 square meters is already converted to non-agricultural use and the remaining part i.e. area of 1993.60 square meters is affected by reservation No.61 for shopping complex and vegetable market in the Regional Plan for Jalgaon and Bhusaval. Certain details for the Regional Plans and its notification are as follows:

The regional plan for development of Jalgoan and Bhusaval Region was notified by respondent No.1 by notification dated 12th

(4) November, 1991 w.e.f. 1st February, 1992. The plan was approved in the year 1992. The revision in the plan was brought into force from 21st November, 2005. In spite of reservations for establishing shopping complex and vegetable market, no steps or action were taken for a considerable period. There was a revised sanction to the development plan. As no steps were taken, the petitioner had issued a purchase notice to the respondents under the Maharashtra Regional and Town Planning Act, 1966. The purchase notice issued by the petitioner was responded by respondent No.1 and the petitioner was called for personal hearing by communication dated 22nd August, 2016. Respondent No.1 confirmed the purchase notice issued by the petitioner.

By communication dated dated 23rd May, 2017, the transferable development rights were offered by respondent No.6 but as the petitioner was not interested in transfer development rights, he requested for acquisition proceedings at the earliest in respect of his land. Respondent No.6 - Chief Officer, Bhusaval Municipal Council forwarded the proposal of acquisition of land of the petitioner to respondent No.5 - District Collector, Jalgaon on 15th July, 2017. 4.

It is submitted before this Court that though this proposal is submitted in the year 2017, till date of filing the present petition and approaching this Court, neither any step is taken nor any acquisition proceedings were completed as stipulated under Section 127 of the

(5) Act. Thus, an attempt of the petitioner before this Court is to make out a case for lapsing of the reservation and in result releasing the land in favor of the petitioner.

5.

Mr Bhandari, learned Counsel appearing on behalf of the petitioner invited our attention to the documents placed on record, such as, a copy of 7/12 extract, a copy of the extract of Fer far Register, a copy of the order dated 17th July, 2013, whereby the District Collector, Jalgaon permitted the part of area to be utilized as non-agricultural land. A copy of document under the caption "Part Plan of D. P. Bhusaval (IInd Revised) sanctioned" is also placed on record at Exh. 'C'. The purchase notice dated 2nd March, 2016 is also placed on record at Exh. 'D'. Copy of the response to the notice by communication dated 22nd August, 2016 is also placed on record. A copy of communication dated 15th July, 2017, forwarding proposal to the District Collector, Jalgaon through the Chief Officer, Bhusaval Municipal Council is placed on record at Exh. 'G'. 6.

Mr Bhandari, learned Counsel appearing on behalf of the petitioner submitted that the petitions were filed in this Court on the basis of nearly identical situation and the orders are passed. He invited our attention to the following judgments in support of his submissions :

(6) i) Hanumanrao Morbaji Gudadhe & ors. Vs. State of Maharashtra & ors., reported in 2015 (6) Mh.L.J. 127; ii) Hasmukhrai V. Metha Vs. State of Maharashtra & ors., reported in 2014 STPL 10974 SC;

iii) Hasina Kudbuddin Shaikh Vs. Karad Municipal Council, reported in (2019) 2 ALL MR 554; and iv) Mehtab Laiq Ahmed Shaikh Vs. Municipal Corporation of Greater Mumbai & ors., reported in 2012 (2) Bom. C.R. 50.

7.

Mr Bhandari, learned Counsel appearing on behalf of the petitioner also placed heavy reliance on the judgment of the Honourable the Apex Court in the matter of Chhabildas Vs. State of Maharashtra & ors., reported in 2018 STPL 1962 SC. 8.

Per contra, Mr Sonpawale, learned AGP appearing for respondent Nos.1 to 5 and Mr Deshmukh, learned Counsel appearing for respondent No.6 opposed the petition.

9.

Mr Deshmukh, learned Counsel appearing for respondent No.6 vehemently submitted that the notice issued by the petitioner was not under Section 127 of the Act but it was under Section 49 of the Act and as such, the judgments relied on behalf of the petitioner may not help

(7) the petitioner. He then invited our attention to the judgment passed at Principal Seat of this Court in the matter of Tolani Brothers, Mumbai Vs. Chief Secretary, Government of Maharashtra, Urban Land Development, Mantralaya, Mumbai, passed on 12th March, 2019, in Writ Petition No.2071 of 2012.

10.

Mr Bhandari, learned Counsel appearing for petitioner, by way of a pursis dated 12th December, 2019 submitted that though the acquiring body has represented that the proposal for acquisition of land of the petitioner was submitted on 15th July, 2017, subsequently in respect of the said proposal, the office of the District Collector, Jalgaon issued a communication to the Chief Officer, Municipal Council, Bhusaval with reference to certain deficiencies. Perusal of this documents i.e. the communication dated 12th May, 2019 shows that there are as may as seven deficiencies. Apart from some technical deficiencies, it also refers to non submission of the certificate to the effect that the Municipal Council made the financial provisions for acquisition of the land.

It was then informed to the Chief Officer of Municipal Council, Bhusaval to comply with the deficiencies and submit the fresh proposal within a period of fifteen days. Thus, it was the submission of Mr Bhandari that till date, the Municipal Council is unable to make any financial provision for acquisition of the land and only raising objection of the technical grounds.

(8) Mr Bhandari that on one hand, the Municipal Council is not in a position to make any financial provision for acquisition of the land, whereby an adequate compensation can be awarded to the petitioner and on the other hand the Council is not allowing the petitioner to take the benefit of legal provisions.

11.

We have heard learned Counsel appearing on behalf of the respective parties and have gone through the material placed on record. At the cost of repetition, we may refer to the certain fats. The petitioner served the purchase notice on 2nd March, 2016. True it is that this notice is under Section 49 of the Act. The purchase notice was confirmed by the communication dated 22nd August, 2016. The documents placed on record along with the affidavit-in-reply filed on behalf of respondent No.6 - Municipal Council, Bhusaval, Dist. Jalgaon show that the petitioner had also submitted a proposal to the Municipal Council to acquire the land by private negotiations. The Municipal Council forwarded a communication to respondent No.4 - Assistant Director, Town Planning Department, Jalgaon to undertake the exercise of valuation of the land.

Then there is a communication dated 31st October, 2017, forwarded to the District Deputy Registrar (Class-1), Jalgaon, whereby all the necessary facts are referred to and it was requested to undertake the exercise of valuation of the land. In response, the Jt.

(9) dated 14th December, 2017 to the Chief Officer, Municipal Council, Bhusaval, informing the prevalent rates for the year 2015, 2016-17 and for 2017-18.

12.

Mr Bhandari, learned Counsel for the petitioner then submitted that though the objection is raised by the Municipal Council that the notice issued by the petitioner is under Section 49 of the Act and not under Section 127 of the Act, this objection may not come in the way of the petitioner.

13.

Mr Bhandari, learned Counsel for the petitioner invited our attention to the judgment of the Principal Seat of this Court in the matter of Chandrakant Mahadev Patil & ors. Vs. State of Maharashtra & ors., passed on 6th August, 2018 in Writ Petition No.4790 of 2018. The observations made by this Court in the said judgment at para 17 read thus :

"17.

As stated earlier, there is no significant change brought about in both sections 125 and 126 of the MRTP Act by the Maharashtra Act No.XLII of 2015 except for replacing the repealed Land Acquisition Act of 1894 by the said Act of 2013. Therefore, the legal position continues to be same. Hence, we have no hesitation in holding that the provisions of the said Act of 2013 found in the provisions of Sections 125 and 126 of the MRTP Act are by way of incorporation and not by way of a reference and that is why

(10) a modification, repeal or reenactment of the said Act of 2013 will have no repercussions on the provisions of Sections 125 and 126 of the MRTP Act. Therefore, the enactment of subsection (1) of section 105-A by Maharashtra Act No.XXXVII of 2018 will have no impact on the applicability of the said Act of 2013 to acquisition under the MRTP Act to the extent permitted by Sections 125 and 126 of the MRTP Act."

14.

Mr Bhandari, learned Counsel for the petitioner then submitted that the Municipal Council, Bhusaval had not taken any steps for acquisition of the land on the ground of financial constraints till date. The Municipal Council, as such, cannot put a rider against the petitioner. He invited our attention to the judgment of the Honourable the Apex Court in the matter of Hasmukhrai V. Metha Vs. State of Maharashtra & ors., reported in 2014 STPL 10974 SC. It would be useful for our purposes to refer to the observations made in the said judgment at para Nos.14 and 17, which read thus : "14.

In view of the principle of law laid down by this Court, as above, we are of the view that in the present case since neither steps have been taken by the authorities concerned for acquisition of the land, nor the land of the appellant is purchased under purchase notice, nor he is allowed to use the land for last more than twenty years, the land will have to be released as the appellant cannot be deprived from utilizing his property for an indefinite period.

(11) 17.

Accordingly, we allow the appeal and set aside the impugned order passed by the High Court. Since no steps appear to have been taken till date for last more than twenty years either for acquisition or for purchase of the land under MRTP Act, 1966 by the authorities concerned, as such, the land in question stands released from reservation under Section 127 of the MRTP Act."

15.

Mr Bhandari then invited our attention to the judgment of this Court in the matter of Mehtab Laiq Ahmed Shaikh Vs. Municipal Corporation of Greater Mumbai & ors., reported in 2012 (2) Bom. C.R. 50. The relevant observations made by this Court in the said judgment are as follows :

31. From the aforesaid it is clear that proceedings under Sections 49 and 127 of the Act operate in different situations. So far as provisions of Section 127 are concerned, it provides that where any land is reserved, allotted or designated for any purpose specified in any plan under the 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 Act or under the Land Acquisition Act, 1894 are not commenced during the period, the owner or the person interested in the land is empowered to submit a notice to the planning authority, development authority or, as the case may be, appropriate authority, to that effect and if within six months from the date of the service of such notice, the land is not acquired

(12) or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed and owner thereupon is entitled to develop the land. ............."

16.

Mr Bhandari then invited our attention to the judgment of this Court at Aurangabad Bench in the matter of Subhash Jadhav, Khanderao Jadhav and Omprakash Jadhav Vs. State of Maharashtra and the Nanded Waghala Municipal Corporation, Nanded, reported in (2012) 3 ALL MR 263 and this Court made following observations :

"8.

It is thus clear from the aforesaid statutory provisions that a right vests in favour of the owner of the land, in case the planning authority fails to make an application for acquisition of the land within a period of one year from the date on which the purchase notice has been confirmed by the State Govt., as required u/S. 126 of the MRTP Act. 09.

Indisputably, in the present case, though the purchase notice was confirmed on 28.12.2005. No doubt, that an application was made by the appropriate authority on 28.11.2006, so that it would be within a period of one year from the date of confirmation of the purchase notice. However, a perusal of the communication dated 22.2.2007 by the Collector, itself wold reveal that the said proposal was not consistent with the statutory provisions. It can, thus, be seen that in the present case, the Appropriate Authority

(13) had even failed to make an application as per the provisions of Section 126 of the MRTP Act for acquiring the land within a period of one year from the date of confirmation of purchase notice, and as such, reservation stood lapsed on expiry of one year's period from the date of confirmation of the purchase notice, and therefore, the petitioners were free to develop their lands as was permissible in case of adjacent land. It is further to be noted that the Municipal Corporation itself has passed a resolution that if the proceedings were not initiated within one year from the date of confirmation of purchase notice, the land would be de-reserved." 17.

Mr Bhandari also invited our attention to the judgment of this Court at Nagpur Bench in the matter of Lalita Gyanchandji Sanchaity Vs. State of Maharashtra, reported in (2018) 3 ALL MR 642, to which one of us was a party (Prasanna B. Varale, J.). 18.

Mr Bhandari, learned Counsel for the petitioner also invited our attention to the judgment of the Honourable the Apex Court in the matter of Chhabildas Vs. State of Maharashtra & ors., reported in 2018 STPL 1962 SC. The observations made by the Honourable the Apex Court in the said judgment read thus :

"24.

On a conspectus of the above authorities, the following position in law emerges :

(14) (1) In all Section 49 cases, where a purchase notice has been served and is confirmed within the period specified, the appropriate authority must make an application to acquire the land within one year from the date of confirmation of the notice. If it does not do so, the reservation, designation, etc. shall be deemed to have lapsed.

(2) If within the period specified in Section 49(7), the appropriate authority makes the requisite application, then the State Government may acquire the land by making a declaration under Section 6 of the Land Acquisition Act as set out under Section 126(4), wherein the market value shall be the market value of the land as on the date of the Section 6 declaration. Ordinarily, such declaration must be made within 1 year of the date of receipt of the requisite application. In case this not done, it will be open to the aggrieved person to move the Court to direct the State Government to make the requisite declaration immediately.

(3) If 10 years have passed from the date of publication of the plan in question, and a purchase notice has been served under Section 127,and no steps have been taken within a period of one year from the date of service of such notice, all proceedings shall be deemed to have lapsed. Thus, even in cases covered by Section 49, the drill of Section 126(4) and Section 127 will have to be followed, subsequent to the appropriate authority making an application to acquire the land within the period specified in Section 49(7)."

(15)

27. This Court, in Hasmukhrai V. Mehta v. State of Maharashtra & Ors., (2015) 3 SCC 154, held that where an inordinately long delay takes place from the date on which the appropriate authority makes an application to acquire the land (in that case 20 years), the land in question stands released from reservation.

28. ........... This Court, after referring to Sections 49 and 127 of the Act, held:

"12. We think it pertinent to mention here that APMC, Respondent 5, even after service of notice, has not cared to contest this appeal. Also, we think it relevant to mention that till date no steps appear to have been taken for acquisition of the land in question or to release the same. The land of the appellant, in our opinion, cannot be held up, without any authority of law, as neither the same is purchased till date by the respondent authorities, nor acquired under any law, nor the appellant is being allowed to use the land for the last more than twenty years."

31. In the present case, 15 years have passed since the date of publication of the development plan, and over 10 years have passed since the date of the purchase notice issued under Section 49. Considering the fact that there has been no stay at any stage by any Court, it is clear that an inordinately long period of time has elapsed, both since the date of publication of the development plan, as well as the

(16) date of the purchase notice served under Section 49. No doubt, the letter of 26.9.2008 shows that an application was made within the requisite time period to acquire the aforesaid land. However, on the facts of this case, since after the aforesaid letter nothing has been done to acquire the appellant's property, we are of the view that the reservation contained in the development plan as well as acquisition proposal have lapsed. We make it clear that we hold this in order to do complete justice between the parties under Article 142 of the Constitution of India. However, in all future cases that may arise under the provisions of Section 49, the drill of Section 127 must be followed, i.e. that after 10 years have elapsed from the date of publication of the relevant plan, a second purchase notice must be served in accordance with the provisions of Section 127, in order that lapsing can take place under the aforesaid section. With these observations, the appeal is disposed of."

19.

Mr Deshmukh, learned Counsel for the respondent No.6 invited our attention to the reported judgment of this Court dated 17th October, 2018, passed in Writ Petition No.3471 of 2009 (Pankaj Suresh Borole & anr. Vs. The State of Maharashtra & ors.), wherein the reference of the judgment of the Apex Court in the matter of Chhabildas (supra) is made. This Court made following observations at para 6 of the said judgment :

(17) "6. In the case of Chhabildas (supra), the Apex Court exercised its jurisdiction under Article 142 of the Constitution of India. The present case would be covered by the judgment of the the Apex Court in Chhabildas (supra). The purchase notice under Section 49 of M.R.T.P. Act issued on 22.01.2003 is confirmed by the State Government on 30.05.2003. On 17.09.2003 viz. within one year, the proposal is sent by the Municipal Corporation to the Collector for 10 acquisition of the writ land. In absence of issuance of second purchase notice under Section 127 M.R.T.P. Act and in view of judgment of Apex Court in Chhabildas (supra), the reservation on the writ land would not lapse, merely by giving notice under Section 49 of the M.R.T.P. Act."

20.

Though submissions of Mr Bhandari look attractive at the first blush, we are unable to accept his submissions for the following reasons :

Perusal of the affidavit-in-reply filed on behalf of respondent No.6 - Municipal Council, Bhusaval shows that the purchase notice issued by the petitioner dated 2nd March, 2016 is under Section 49 of the Act. By communication dated 22nd August, 2016, the purchase notice was confirmed and the Municipal Council, Bhusaval was informed to take steps for acquisition of the land. The proposal to the District Collector, Jalgaon was submitted on 15th July, 2017. Perusal of the affidavit-in-reply filed on behalf of Municipal Council shows that the petitioner himself, on 4th August, 2017 accepted for forwarding

(18) a fresh proposal for acquisition with his willingness for private negotiations. An affidavit-in-reply is also filed to that effect. The petitioner himself has placed on record the communication dated 12th May, 2019, whereby the Municipal Council is informed about the deficiencies and submit a fresh proposal within fifteen days by compliance of these deficiencies.

21.

There is nothing placed on record to suggest that respondent No.6 Municipal Council, Bhusaval would not submit the fresh proposal or would not comply the deficiencies without there being any such positive assertion of inability of the Municipal Council to submit a fresh proposal. The submission of learned Counsel for the petitioner cannot be accepted.

22.

It is the admitted position that the petitioner had not issued notice under Section 127 of the Act and notice issued by the petitioner was under Section 49 of the Act. In view of this fact, Mr Deshmukh is justified in placing reliance on the judgment of the Division Bench of this Court in the matter of Tolani Brothers, Mumbai Vs. Chief Secretary, Government of Maharashtra (supra). It may be useful for our purposes to refer to the observations of this Court in para Nos.27 to 30, which read as under :

(19) "27.

The primary argument is that this application, copy of which is at page 110-111, was accompanied by the relevant documents. However, on 12-2-2008 (Exhibit-L, page 114) this proposal/application was returned. In any event, it is an incomplete proposal In such circumstances, it is urged that once there is no application by the appropriate Authority to acquire the land in respect of which purchase notice has been confirmed, as required under Section 126, then, the reservation/designation lapses and the land is deemed to have been released from the reservation.

28.

True it is that the period of one year is mandatory and within which the Appropriate Authority has to make an application.

29.

It is conceded before us that save and except the reservation/designation for police station is concerned, the Appropriate Authority is the thane Municipal Corporation. It is conceded that it made the application within one year from the date of confirmation of the purchase notice. Thus, the purchase notice dated 13-2-2007 was confirmed on 108-2007 and the period of one year would have expired on 10-8-2008. Prior to that date, on 16-1-2008, an application in terms of sub-section (7) of Section 49 for the reserved/designated land, for which the Thane Municipal Corporation is the Appropriate Authority, was indeed made by it. However, this proposal was returned back with certain remarks on 12-2-2008. Consequently, there is no

(20) application on the file, according to the counsel. Alternatively, this is an incomplete application and which does not meet the requirements of law. Hence there is no compliance with sub-section (7) of Section 49. 30.

It is difficult to agree with the learned counsel appearing for the petitioners and for more than one reason. Once he concedes that the application has been made within one year, then in the absence of any prescription in the statute or anything partaking the character of a statute about the manner in which the application has to be made, the requirement of it being accepted, or accepted unconditionally or conditionally, the consequences after it being returned or refused, the learned Advocate/counsel cannot have build an argument of this nature. He concedes that there is no form of the application unlike the manner prescribed by the regulations for the purchase notice.

The portion below Clause (e) of sub-section (1) of Section 49, in clearest term, says that the owner or person affected may serve on the State government within such time and in such manner, as is prescribed by regulations, a notice (hereinafter referred to as "the purchase notice"). Cencededly, there is no such prescription in the regulations or the rules or anything having a statutory flavour or character as far as the application contemplated by subsection (7) of Section 49 of the MRTP Act. There could not have been either. The language of sub-section (7) of Section 49 is advisedly different. That subsection opens with the words "If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land ..."

(21) crucial words are failing to make an 'application'. This word is not defined in the MRTP. Act. It must be given its ordinary and natural meaning. The ordinary dictionary meaning of the work "Application" is "to make or lodge a request" or "a formal request to an Authority", "the action of putting something into an operation" and Black's Law Dictionary defines this word as a "request or Petition". The word "Applicant" means "one who requests something". It is the failure to make an application to acquire which invites the consequences under sub-section (7). Therefore, to read into the sub-section anything beyond this will contravene the settled canon or principle of interpretation of statutes, namely, when the language is plain, unambiguous and clear, there is no scope for applying these principles."

23.

Considering the above referred facts, we are of the opinion that the petition is devoid of merits. As such, the same is dismissed. (ANIL S. KILOR, J.) (PRASANNA B. VARALE, J.) sjk