Hasmukhrai V. Metha Vs. State of Maharashtra and others
EmailAppeal: Civil Appeal No. 1387 of 2008
[From the Judgment and Order dated 17.07.2007 of the High Court of Judicature of Bombay in Writ Petition No. 2266 of 2004]
[From the Judgment and Order dated 17.07.2007 of the High Court of Judicature of Bombay in Writ Petition No. 2266 of 2004]
Petitioner: Hasmukhrai V. Metha
Respondent: State of Maharashtra and others
Judges: Vikramajit Sen & Prafulla C. Pant, JJ.
Date of Judgment: Dec 03, 2014
Appearances:
Mr. V.A. Mohta, Senior Advocate, Mr. Manoj V. George, Mr. T.V. George, Mr. Aakarsh Kamra, Ms. Siju Thomas, Mr. Devansh Mohta, Mr. Neelkanta Nayak, Mr. B.D. Das, Advocates with him for the Appellant.
Mr. Shankar Chillarge, Additional Govt. Advocate, Ms. Sonia Shankar Chillarge, Mr. Aniruddha P. Mayee, Mr. S.R. Setia, Advocates with him for the Respondents.
Mr. Shankar Chillarge, Additional Govt. Advocate, Ms. Sonia Shankar Chillarge, Mr. Aniruddha P. Mayee, Mr. S.R. Setia, Advocates with him for the Respondents.
Head Note:
Town Planning/Acquisition
Maharashtra Regional and Town Planning Act, 1966
Sections 46, 127 – Constitution of India, 1950, Articles 226, 14 – Obligation to acquire land – Notice – Release from reservation – Lapsing of reservation – Land owner applying to authority for permission to develop land – Permission granted and commencement certificate issued in 1990 – Development plan for municipal area sanctioned in 1976 – Land in question included in residential zone – In 1991 development plan for residential purposes sanctioned and development charges also recovered – In 1999, fresh development plan prepared – Land in question reserved as part of land for APMC and Truck Terminal – Purchase notice issued by owner on 17.8.2000 – Municipal Corporation informed to initiate acquisition in one year from 16.3.2001, which in turn informed APMC to start acquisition proceedings and act upon purchase notice – Land owner also wrote to APMC – No steps taken till 15.3.2002 – Land owner sought validation of earlier permission on 5.7.2002 – Made representation on 13.2.2003, but to no avail – Writ filed – Sought directions for acquiring land or for releasing the same from reservation – If acquisition lapsed and land is to be released from reservation. Held that no steps were taken nor have been taken till date. Hence land in question cannot be held up. The owner is not being allowed to use land for more than 20 years. Hence, land is to be released. High Court erred in dismissing writ. Cases of T. Vijayalakshmi [JT 2006 (9) SC 297] and Girnar Traders relied upon.
Maharashtra Regional and Town Planning Act, 1966
Sections 46, 127 – Constitution of India, 1950, Articles 226, 14 – Obligation to acquire land – Notice – Release from reservation – Lapsing of reservation – Land owner applying to authority for permission to develop land – Permission granted and commencement certificate issued in 1990 – Development plan for municipal area sanctioned in 1976 – Land in question included in residential zone – In 1991 development plan for residential purposes sanctioned and development charges also recovered – In 1999, fresh development plan prepared – Land in question reserved as part of land for APMC and Truck Terminal – Purchase notice issued by owner on 17.8.2000 – Municipal Corporation informed to initiate acquisition in one year from 16.3.2001, which in turn informed APMC to start acquisition proceedings and act upon purchase notice – Land owner also wrote to APMC – No steps taken till 15.3.2002 – Land owner sought validation of earlier permission on 5.7.2002 – Made representation on 13.2.2003, but to no avail – Writ filed – Sought directions for acquiring land or for releasing the same from reservation – If acquisition lapsed and land is to be released from reservation. Held that no steps were taken nor have been taken till date. Hence land in question cannot be held up. The owner is not being allowed to use land for more than 20 years. Hence, land is to be released. High Court erred in dismissing writ. Cases of T. Vijayalakshmi [JT 2006 (9) SC 297] and Girnar Traders relied upon.
Held:
Till date no steps appear to have been taken for acquisition of the land in question or to release the same. The land of appellant, in our opinion, can not be held up, without any authority of law, as neither the same is purchased till date by respondent authorities, nor acquired under any law, nor the appellant is being allowed to use the land for last more than twenty years. 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. (Paras 11 & 14)
Letter dated 23.4.2001 (Annexure P/8) sent by the Chief Officer of Khopoli Municipal Council to the Chairman, Agriculture Produce Market Committee, wherein at the end of the letter, it is expressly mentioned that if action of acquisition of land not started within time limit mentioned under MRTP Act, 1966, the Committee (APMC) would be responsible for lapse of reservation of the land. It appears that no one bothered on the issue to take steps for acquisition. The High Court has erred in law in dismissing the writ petition. (Paras 15, 16)
Cases Reffered:
1.Girnar Traders v. State of Maharashtra and others [2007 7 SCC 555] (Para 13)
2.T. Vijayalakshmi and others v. Town Planning Member and another [JT 2006 (9) SC 297] (Para 12)
JUDGEMENT:
Prafulla C. Pant, J.
1. This appeal is directed against order dated 17.7.2007 whereby the High Court of Judicature at Bombay has discussed the Writ Petition No. 2266 of 2004, seeking direction either to release the appellant’s land situated in Village Sheel, District Raigad in terms of Section 49 read with Section 127 of Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as ‘MRTP Act’), from reservation and allow the appellant to develop the property for residential use, or, in alternative, to declare the appellant’s land stood acquired for the purposes of Agricultural Produce Market Committee (for short ‘APMC’) and Truck Terminal (for which it was reserved).
2. In brief, factual matrix of the case is that the appellant Hasmukhrai Vanmalidas Mehta owns land in Survey No. 16, Hissa No.3 and Survey No. 18, Hissa No. 4, situated in Village Sheel, Taluka Khopoli, District Raigad in the State of Maharashtra. On 14.02.1990, he applied to the Planning Authority seeking permission to carry out development of land with necessary documents as required under Section 44 of MRTP Act. The appellant was granted permission and issued commencement certificate dated 03.04.1990 by respondent No.4 (Chief Officer, Khapoli Municipal Council) under Section 45 of said Act read with Section 89(4) of Maharashtra Municipalities Act, 1965. The Development Plan of Khopoli Municipal Council was sanctioned by the Government, vide Order No. TPS/1476/32/UD-5 dated 17.12.1976. It is pleaded on behalf of the appellant that the land in question, belonging to the appellant, was included in the residential zone in the sanctioned plan of 15.1.1977. It is further pleaded that on 15.7.1991, the Chief Town Planning Officer granted ‘No Objection Certificate’ for utilization of the land for non-agricultural purpose. From communication dated 15.7.1991, made by respondent No. 4 it reveals that Development Plan for residential purpose was sanctioned, and commencement certificate was issued by him on 19.6.1992 for construction. Development charges amounting Rs.1,92,490/- were also recovered from the appellant by getting served notice dated 31.07.1998, for use of land for residential purpose.
3. However, on 14.1.1999 the appellant was informed by the respondent No. 4 that a fresh development scheme of Khopoli town has been prepared which includes appellant’s survey Nos. 16/3 and 18/4 as a part of land reserved for Agriculture Produce Market Yard (for short ‘APM Yard’) and for Truck Terminal. Reacting to it, on 17.8.2000 the appellant served a purchase notice under Section 49 of the MRTP Act as the land in question was already in the sanctioned plan left in 1977 for residential purposes. In reply to this, Director, Town Planning, vide his communication dated 16.3.2001, though confirmed receiving of the purchase notice, but directed the appellant to contact APMC, Khopoli. The Director, Town Planning wrote separate letter to Chief Officer of Municipal Council of Khopoli that the proceedings of land acquisition for APM Yard be initiated within one year from 16.3.2001 failing which it would amount to release of the land from the reservation for APM Yard. Consequently, Khopoli Municipal Council wrote a letter on 23.4.2001 to APMC to immediately initiate acquisition proceedings and to act on purchase notice served by the appellant. The appellant himself wrote a letter to respondent No. 5 (APMC) requesting for initiation of acquisition proceedings. Another letter was sent on 6.7.2001 by the respondent No. 4 to respondent No. 5 calling upon it to take necessary steps for acquisition of the appellant’s land. However, no steps were taken for one year, i.e., by 15.3.2001(?). Respondent No. 4 again reminded respondent No. 5 between September, 2001 to March, 2002 to complete the acquisition proceedings. When nothing was done, the appellant again on 5.7.2002 sought revalidation of the permission for construction earlier allowed to him. After running from pillar to post, the appellant made a representation dated 13.2.20035 to the Secretary, Urban Development, Government of Maharashtra, on the above issue, but to no avail. Ultimately, the appellant filed writ petition in February, 2004 complaining that the respondents are neither acquiring land belonging to the appellant nor releasing the same from reservation for APM Yard, and sought necessary directions from the High Court.
4. By impugned order the High Court, by its two paragraphs order, dismissed the writ petition by observing that notice dated 17.8.2000 given by the writ petitioner (present appellant) invoking the provisions of Section 49 of the MRTP Act is of no help as the Development Scheme by then was not finalized. It is further observed by the High Court that Section 127 of the MRTP Act contemplates that the land be acquired by the Planning Authority within a period of 10 years after reservation, but in the present case, plan was finalized in March, 2003, as such before the expiry of ten years elapsed, no benefit can be given to him.
5. We have heard learned counsel for the parties at length and perused the papers on record.
6. Before further discussion, we think it just and proper to quote the relevant provisions of law applicable to this case. Section 49 of the Maharashtra Regional and Town Planning Act, 1966 reads as under: –
’49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases:- (1) Where-
(a) any land is designated by a plan as subject to compulsory acquisition, or
(b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or
(c) any land is indicated in any plan as land on which a highway is proposed to be constructed or included, or
(d) any land for the development of which permission is refused or is granted subject to conditions, and any owner of land referred to in clauses (a), (b) (c) or (d) claims-
(i) that the land has become incapable of reasonably beneficial use in its existing state, or
(ii) (where planning permission is given subject to conditions) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or
(e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated,
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’) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act.
(2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that Authority and of the State Government, if any, in respect of which the notice is given.
(3) On receipt of a purchase notice, the State Government shall forthwith call from the Planning Authority and the Appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition.
(4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub-section (1) are fulfilled, and that order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard.
(5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period.
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1. This appeal is directed against order dated 17.7.2007 whereby the High Court of Judicature at Bombay has discussed the Writ Petition No. 2266 of 2004, seeking direction either to release the appellant’s land situated in Village Sheel, District Raigad in terms of Section 49 read with Section 127 of Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as ‘MRTP Act’), from reservation and allow the appellant to develop the property for residential use, or, in alternative, to declare the appellant’s land stood acquired for the purposes of Agricultural Produce Market Committee (for short ‘APMC’) and Truck Terminal (for which it was reserved).
2. In brief, factual matrix of the case is that the appellant Hasmukhrai Vanmalidas Mehta owns land in Survey No. 16, Hissa No.3 and Survey No. 18, Hissa No. 4, situated in Village Sheel, Taluka Khopoli, District Raigad in the State of Maharashtra. On 14.02.1990, he applied to the Planning Authority seeking permission to carry out development of land with necessary documents as required under Section 44 of MRTP Act. The appellant was granted permission and issued commencement certificate dated 03.04.1990 by respondent No.4 (Chief Officer, Khapoli Municipal Council) under Section 45 of said Act read with Section 89(4) of Maharashtra Municipalities Act, 1965. The Development Plan of Khopoli Municipal Council was sanctioned by the Government, vide Order No. TPS/1476/32/UD-5 dated 17.12.1976. It is pleaded on behalf of the appellant that the land in question, belonging to the appellant, was included in the residential zone in the sanctioned plan of 15.1.1977. It is further pleaded that on 15.7.1991, the Chief Town Planning Officer granted ‘No Objection Certificate’ for utilization of the land for non-agricultural purpose. From communication dated 15.7.1991, made by respondent No. 4 it reveals that Development Plan for residential purpose was sanctioned, and commencement certificate was issued by him on 19.6.1992 for construction. Development charges amounting Rs.1,92,490/- were also recovered from the appellant by getting served notice dated 31.07.1998, for use of land for residential purpose.
3. However, on 14.1.1999 the appellant was informed by the respondent No. 4 that a fresh development scheme of Khopoli town has been prepared which includes appellant’s survey Nos. 16/3 and 18/4 as a part of land reserved for Agriculture Produce Market Yard (for short ‘APM Yard’) and for Truck Terminal. Reacting to it, on 17.8.2000 the appellant served a purchase notice under Section 49 of the MRTP Act as the land in question was already in the sanctioned plan left in 1977 for residential purposes. In reply to this, Director, Town Planning, vide his communication dated 16.3.2001, though confirmed receiving of the purchase notice, but directed the appellant to contact APMC, Khopoli. The Director, Town Planning wrote separate letter to Chief Officer of Municipal Council of Khopoli that the proceedings of land acquisition for APM Yard be initiated within one year from 16.3.2001 failing which it would amount to release of the land from the reservation for APM Yard. Consequently, Khopoli Municipal Council wrote a letter on 23.4.2001 to APMC to immediately initiate acquisition proceedings and to act on purchase notice served by the appellant. The appellant himself wrote a letter to respondent No. 5 (APMC) requesting for initiation of acquisition proceedings. Another letter was sent on 6.7.2001 by the respondent No. 4 to respondent No. 5 calling upon it to take necessary steps for acquisition of the appellant’s land. However, no steps were taken for one year, i.e., by 15.3.2001(?). Respondent No. 4 again reminded respondent No. 5 between September, 2001 to March, 2002 to complete the acquisition proceedings. When nothing was done, the appellant again on 5.7.2002 sought revalidation of the permission for construction earlier allowed to him. After running from pillar to post, the appellant made a representation dated 13.2.20035 to the Secretary, Urban Development, Government of Maharashtra, on the above issue, but to no avail. Ultimately, the appellant filed writ petition in February, 2004 complaining that the respondents are neither acquiring land belonging to the appellant nor releasing the same from reservation for APM Yard, and sought necessary directions from the High Court.
4. By impugned order the High Court, by its two paragraphs order, dismissed the writ petition by observing that notice dated 17.8.2000 given by the writ petitioner (present appellant) invoking the provisions of Section 49 of the MRTP Act is of no help as the Development Scheme by then was not finalized. It is further observed by the High Court that Section 127 of the MRTP Act contemplates that the land be acquired by the Planning Authority within a period of 10 years after reservation, but in the present case, plan was finalized in March, 2003, as such before the expiry of ten years elapsed, no benefit can be given to him.
5. We have heard learned counsel for the parties at length and perused the papers on record.
6. Before further discussion, we think it just and proper to quote the relevant provisions of law applicable to this case. Section 49 of the Maharashtra Regional and Town Planning Act, 1966 reads as under: –
’49. Obligation to acquire land on refusal of permission or on grant of permission in certain cases:- (1) Where-
(a) any land is designated by a plan as subject to compulsory acquisition, or
(b) any land is allotted by a plan for the purpose of any functions of a Government or local authority or statutory body, or is land designated in such plan as a site proposed to be developed for the purposes of any functions of any such Government, authority or body, or
(c) any land is indicated in any plan as land on which a highway is proposed to be constructed or included, or
(d) any land for the development of which permission is refused or is granted subject to conditions, and any owner of land referred to in clauses (a), (b) (c) or (d) claims-
(i) that the land has become incapable of reasonably beneficial use in its existing state, or
(ii) (where planning permission is given subject to conditions) that the land cannot be rendered capable of reasonably beneficial use by the carrying out of the permitted development in accordance with the conditions; or
(e) the owner of the land because of its designation or allocation in any plan claims that he is unable to sell it except at a lower price than that at which he might reasonably have been expected to sell if it were not so designated or allocated,
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’) requiring the Appropriate Authority to purchase the interest in the land in accordance with the provisions of this Act.
(2) The purchase notice shall be accompanied by a copy of any application made by the applicant to the Planning Authority, and of any order or decision of that Authority and of the State Government, if any, in respect of which the notice is given.
(3) On receipt of a purchase notice, the State Government shall forthwith call from the Planning Authority and the Appropriate Authority such report or records or both, as may be necessary, which those authorities shall forward to the State Government as soon as possible but not later than thirty days from the date of their requisition.
(4) On receiving such records or reports, if the State Government is satisfied that the conditions specified in sub-section (1) are fulfilled, and that order or decision for permission was not duly made on the ground that the applicant did not comply with any of the provisions of this Act or rules or regulations, it may confirm the purchase notice, or direct that planning permission be granted without condition or subject to such conditions as will make the land capable of reasonably beneficial use. In any other case, it may refuse to confirm the purchase notice, but in that case, it shall give the applicant a reasonable opportunity of being heard.
(5) If within a period of six months from the date on which a purchase notice is served the State Government does not pass any final order thereon, the notice shall be deemed to have been confirmed at the expiration of that period.
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