Monday 7 March 2016

When claimant is not entitled to get benefit of S 127 of Maharashtra regional and town planning Act?

The learned counsel appearing for respondent No.3 placed
reliance on the judgment of this Court in the case of C.V.Shah  & A.V.Bhat
v.  State of Maharashtra, 2006 (3) Bom.C.R. 216, wherein the Division
Bench of this Court has observed in para­17 as under:
“17. The notice contemplated in section 127 is a notice
requiring   the   Planning   Authority   or   the   Development
Authority or the Appropriate Authority, as the case may
be, to acquire the land which is reserved, allotted or
designated for public purpose in the final development
plan. The notice is given by the owner or the person
having interest in the land that is reserved, allotted or
designated for the particular purpose in the development

plan because such land has not been acquired by consent
or   no   proceedings   for   acquisition   have   commenced
under the MRTP Act, 1966 or the Land Acquisition Act
within   10   years   of   the   coming   into   force   of   final
development plan or final regional plan. The very fact
that notice is given for acquisition or in other words for
compulsory   purchase   by   the   owner   or   the   person
interested in such land would lead to show that the land
is   reserved,   allotted   or   designated   in   the   final
development plan/final regional plan and that in respect
of which no acquisition has taken place by agreement
within 10 years from the date of coming into force of the
final   development   plan   or   final   regional   plan   or   in
respect of which the acquisition proceedings have not
commenced either under the  MRTP Act or under the
Land Acquisition Act. The expression "serve notice .........
to that effect" cannot be construed to mean that in the
notice it is mandatorily required to be stated that the
subject   land   is   reserved/designated/allotted   in   the
development   plan   and   that   the   land   has   not   been
acquired within 10 years from the date on which the
final regional plan or final development plan came into
force or that no proceedings in relation to that land for
acquisition has commenced either under the MRTP Act
or under the Land Acquisition Act within 10 years. The
object of the notice under section 127 is to inform the
Authority mentioned therein to acquire the land which is
designated, reserved or allotted in the final development
plan. The notice need not set out all the facts and details
of the reservation/designation or that the said land  has
not been acquired within 10 years of the coming into
force of the final  development plan. The word ‘Notice’
denotes   an   intimation   to   the   party   concerned   of   a
particular fact. Notice may take several forms. Form of
notice under section 127 is not prescribed. In our view,
therefore, the notice under section 127 shall meet the
sufficient   compliance   if   notice   describes   the   land   in
sufficient clarity and requires the Planning Authority or
the Development Authority or the appropriate authority,

as the case may be to acquire or compulsorily purchase
the  land  so reserved,      allotted  or  designated in   the
development plan.”
7. It is a settled position of law that notice contemplated under
section 127 of the  Act of 1966 is to be given by the owner or the person
having interest  in the land which is reserved, allotted or designated for
the particular purpose in the development plan.   The object of the notice
under section 127 is to inform the Authority mentioned therein to acquire
the land which is designated, reserved or allotted in the final development
plan.   It is further settled position in law that form of notice under section
127   is   not   prescribed.       Therefore   such   notice   shall   meet   sufficient
requirement in describing the land in clear terms and require the planning
authority or development authority or the appropriate authority, as the
case may be, to acquire or compulsorily purchase the land so reserved,
allotted or designated in the development plan.    In case such a notice in
a proper form is served on the concerned authority and no steps are taken
within six months from the date of service of such notice, the reservation/
allotment/ designation shall be deemed to have lapsed and the land shall
be deemed to have been released from the said reservation.
8. Therefore, the precondition for the land owner or the person
interested to claim benefit under the provisions of section 127 of the
Act 1966 would be to give proper notice describing the land in sufficient
clarity and intimating the concerned authority in clear terms.

9. In the present case, we have perused the  contents of the
notice.   It states that the subject land which is described in the notice was
reserved under reservation No.7 in the development plan with effect from
3
rd March 1989.  In the next paragraph, it is mentioned that for a period of
10 years no steps have been taken in accordance with the provisions of Act
of 1966 and the Land Acquisition Act, 1984.     The petitioners further
stated   in   the   said   notice   that   in   these   circumstances,   the   reservation
concerning the subject land gets  lapsed.   In the last paragraph, it is stated
that necessary steps be taken for cancellation of reservation and note be
taken accordingly.    The said notice is dated 2nd February 2009.   Reading
of  this  notice  makes  it  very  clear  that it cannot  be  termed  as notice
contemplated under section 127 of the Act of 1966.   On the other hand,
the   record   placed   before   us   by   respondent   No.3   shows   that   certain
communications   were   exchanged   between   the   land   owners   and   the
appropriate   authority   for   purchasing   the   said   land   by   paying
compensation at market rate.   One of such communication is dated 10th
June 2000 addressed by the petitioners to the Chief Officer of respondent
No.3 and another dated 21st July 2000 addressed by the Chief Officer to
the petitioners.    By communication dated 1st March 2005, the petitioners
informed the Chief Officer that the subject land is owned by them and is a
tenanted property   which is to be acquired by the municipal council by
private   negotiations.       On   23rd  January   2008,   the   municipal   council
adopted resolution in respect of the subject land wherein it was decided
that as Special Economic Zone was to be created in Pen taluka there was
lot of demand to the properties which are situated in the municipal area.
Therefore the land owners i.e. the petitioners herein were not inclined to

hand over the land to the municipal council  by  private negotiations.  This
correspondence further shows intention of the parties in respect of the
subject land.     Shri A.G.Girkar, the Assistant Director of Town Planning,
Alibaug   has   filed   affidavit ­in reply   on   behalf   of   respondent   No.1   and
requested that the writ petition be dismissed.   
10. In the facts, we are of the view that the subject notice does
not meet the requirements of the provisions of section 127 of the Act of
1966.   It  suffers from want of requisite details.   The issue raised herein is
squarely covered by the judgment of the Division Bench of this Court in
the case of   C.V.Shah & A.V.Bhat  (supra).     There is no merit in the
petition.  
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.  6974  OF 2010
Shri Ramchandra Shankar Joshi

V/s.
The State of Maharashtra,

CORAM : NARESH  H. PATIL AND
S.B. SHUKRE, JJ.

PRONOUNCED ON : 24th August 2015.
Citation;2016(1) ALLMR 1Bom

The petitioners seek direction to the respondents to forthwith
release the land bearing Gat No.370, Hissa No.1 situated at taluka­ Pen,
district­ Raigad from reservation No.7 (Garden).
2. It is the contention of the petitioners that they are owners of
the land situated within the limits of the Pen Municipal Council.  The said
land admeasures 0­42­07  +  0­04­0 R.  In the development plan, which
came into force on 3rd  March 1989, the said land was reserved by the
municipal council for the purpose of garden as reservation No.7.     The
petitioners contend that on 2nd February 2009, a notice was issued under
section 127 of the Maharashtra Regional and Town Planning Act, 1966
(“Act of 1966” for short).   It is stated that the said notice was received by
respondent No.3.   In spite of receipt of notice, no  steps were taken by
respondent No.2.   The petitioners claimed to have issued another notice

to respondent No.1 on 11th  March 2010 and requested for issuance of
notification under section 127(2) of the Act of 1966.  The petitioners state
that the respondents did not take any action for purchasing the petitioners'
land in terms of notice issued under section 127 of the Act of 1966.  
3. The learned counsel for the petitioners submits that in view
of settled position of law, after receipt of notice under section 127 of the
Act   of   1966   if   the   State   fails   to   take   proper   action   then   the   subject
reservation would stand lapsed.    The learned counsel submits that in the
affidavit­in­reply filed by respondent No.3­ Council a stand is taken that
the said notice is not in compliance with the provisions of section 127 of
the said Act.    Learned counsel submits that a technical view need not be
taken which would frustrate the cause of the petitioner.
4. Learned counsel appearing for respondent No.3 submits that
for claiming relief of lapsing of reservation, a proper and valid notice
issued under section 127 is essential requirement of law.   In the present
case, the said notice does not conform to the basic requirements.  Hence
such a notice cannot be a basis for claiming relief of lapsing of reservation.
Learned counsel further submits that in the development plan of 1989 the
petitioners' land was reserved for garden.  In a meeting, dated 4th January
1997, it was resolved to develop the said plot by entering into agreement
with the owner of the said land.       The petitioners by their application
dated 10th  May 2000 informed respondent No.3 that they are willing to
accept the compensation at the market rate and hand over the possession
of the said land  or they be provided alternate plot within the municipal

council area.     It is submitted that vide  letter  dated  21st July  2000,
respondent No.3 requested the petitioners to hand over possession of the
said land as the petitioners had agreed to accept the compensation at the
market rate.      The total amount towards valuation was determined at
Rs.34,69,695/­.     The   municipal   council   requested   the   petitioners   to
transfer   the   said   land   at   the   market   rate.       However,  the   petitioners
refused to transfer the said land.    In a general body meeting held on 23rd
January   2008   it   was   resolved   to   acquire   the   said   land   through   the
Collector, Raigad.   Accordingly, intimation was given to Deputy Director,
Town Planning, Kokan Division by a letter dated 24th January 2001.  By
letter dated 16th  July 2008 a request was also made to the Collector,
Raigad for acquiring the said land.    By communication dated 11th August
2008,   the   office   of   the   Collector   informed   respondent   No.3   that   the
proposal submitted was incomplete and further informed to submit the
proposal after complying with various compliances referred to in the said
letter.     Learned   counsel   relied   upon   the   affidavit   sworn   by   the   Chief
Officer of respondent No.3­ Council on 24th August 2011.   
5. The learned counsel appearing for the petitioners has relied
upon judgments of Supreme Court in the cases of  Girnar Traders   v.
State of Maharashtra, 2007 (7) SCC 555;  Beohar Rajendra Sinha  v.
State   of   M.P.,   1969   (1)   SCC   796;  Mohinder   Gupta     v.     Frontier
Construction Company, 2010 (15) SCC 551 and judgment of this Court
in the case of Nagpur Cable Operators Association  v.  Commissioner of
Police Nagpur, 1995 (2) Mh.L.J. 753.

The Apex Court in the case of  Girnar Traders  (supra) has
observed as under:
“56. The underlying principle envisaged in Section 127
of the MRTP Act is either to utilize the land for the
purpose it is reserved in the plan in a given time or let
the   owner   utilize   the   land   for   the   purpose   it   is
permissible under the town planning scheme.   The step
taken   under   the   section   within   the   time   stipulated
should be towards acquisition of land.   It is a step of
acquisition of land and not step for acquisition of land.
It is trite that failure of authorities to take steps which
result in actual commencement of acquisition of land
cannot be permitted to defeat the purpose and object of
the   scheme   of   acquisition     under   the   MRTP   Act   by
merely   moving   an   application   requesting   the
Government   to   acquire   the   land,   which   Government
may or may not accept.   Any step which may or may
not culminate in the step for acquisition cannot be said
to be a step towards acquisition.”
6. The learned counsel appearing for respondent No.3 placed
reliance on the judgment of this Court in the case of C.V.Shah  & A.V.Bhat
v.  State of Maharashtra, 2006 (3) Bom.C.R. 216, wherein the Division
Bench of this Court has observed in para­17 as under:
“17. The notice contemplated in section 127 is a notice
requiring   the   Planning   Authority   or   the   Development
Authority or the Appropriate Authority, as the case may
be, to acquire the land which is reserved, allotted or
designated for public purpose in the final development
plan. The notice is given by the owner or the person
having interest in the land that is reserved, allotted or
designated for the particular purpose in the development

plan because such land has not been acquired by consent
or   no   proceedings   for   acquisition   have   commenced
under the MRTP Act, 1966 or the Land Acquisition Act
within   10   years   of   the   coming   into   force   of   final
development plan or final regional plan. The very fact
that notice is given for acquisition or in other words for
compulsory   purchase   by   the   owner   or   the   person
interested in such land would lead to show that the land
is   reserved,   allotted   or   designated   in   the   final
development plan/final regional plan and that in respect
of which no acquisition has taken place by agreement
within 10 years from the date of coming into force of the
final   development   plan   or   final   regional   plan   or   in
respect of which the acquisition proceedings have not
commenced either under the  MRTP Act or under the
Land Acquisition Act. The expression "serve notice .........
to that effect" cannot be construed to mean that in the
notice it is mandatorily required to be stated that the
subject   land   is   reserved/designated/allotted   in   the
development   plan   and   that   the   land   has   not   been
acquired within 10 years from the date on which the
final regional plan or final development plan came into
force or that no proceedings in relation to that land for
acquisition has commenced either under the MRTP Act
or under the Land Acquisition Act within 10 years. The
object of the notice under section 127 is to inform the
Authority mentioned therein to acquire the land which is
designated, reserved or allotted in the final development
plan. The notice need not set out all the facts and details
of the reservation/designation or that the said land  has
not been acquired within 10 years of the coming into
force of the final  development plan. The word ‘Notice’
denotes   an   intimation   to   the   party   concerned   of   a
particular fact. Notice may take several forms. Form of
notice under section 127 is not prescribed. In our view,
therefore, the notice under section 127 shall meet the
sufficient   compliance   if   notice   describes   the   land   in
sufficient clarity and requires the Planning Authority or
the Development Authority or the appropriate authority,

as the case may be to acquire or compulsorily purchase
the  land  so reserved,      allotted  or  designated in   the
development plan.”
7. It is a settled position of law that notice contemplated under
section 127 of the  Act of 1966 is to be given by the owner or the person
having interest  in the land which is reserved, allotted or designated for
the particular purpose in the development plan.   The object of the notice
under section 127 is to inform the Authority mentioned therein to acquire
the land which is designated, reserved or allotted in the final development
plan.   It is further settled position in law that form of notice under section
127   is   not   prescribed.       Therefore   such   notice   shall   meet   sufficient
requirement in describing the land in clear terms and require the planning
authority or development authority or the appropriate authority, as the
case may be, to acquire or compulsorily purchase the land so reserved,
allotted or designated in the development plan.    In case such a notice in
a proper form is served on the concerned authority and no steps are taken
within six months from the date of service of such notice, the reservation/
allotment/ designation shall be deemed to have lapsed and the land shall
be deemed to have been released from the said reservation.
8. Therefore, the precondition for the land owner or the person
interested to claim benefit under the provisions of section 127 of the
Act 1966 would be to give proper notice describing the land in sufficient
clarity and intimating the concerned authority in clear terms.

9. In the present case, we have perused the  contents of the
notice.   It states that the subject land which is described in the notice was
reserved under reservation No.7 in the development plan with effect from
3
rd March 1989.  In the next paragraph, it is mentioned that for a period of
10 years no steps have been taken in accordance with the provisions of Act
of 1966 and the Land Acquisition Act, 1984.     The petitioners further
stated   in   the   said   notice   that   in   these   circumstances,   the   reservation
concerning the subject land gets  lapsed.   In the last paragraph, it is stated
that necessary steps be taken for cancellation of reservation and note be
taken accordingly.    The said notice is dated 2nd February 2009.   Reading
of  this  notice  makes  it  very  clear  that it cannot  be  termed  as notice
contemplated under section 127 of the Act of 1966.   On the other hand,
the   record   placed   before   us   by   respondent   No.3   shows   that   certain
communications   were   exchanged   between   the   land   owners   and   the
appropriate   authority   for   purchasing   the   said   land   by   paying
compensation at market rate.   One of such communication is dated 10th
June 2000 addressed by the petitioners to the Chief Officer of respondent
No.3 and another dated 21st July 2000 addressed by the Chief Officer to
the petitioners.    By communication dated 1st March 2005, the petitioners
informed the Chief Officer that the subject land is owned by them and is a
tenanted property   which is to be acquired by the municipal council by
private   negotiations.       On   23rd  January   2008,   the   municipal   council
adopted resolution in respect of the subject land wherein it was decided
that as Special Economic Zone was to be created in Pen taluka there was
lot of demand to the properties which are situated in the municipal area.
Therefore the land owners i.e. the petitioners herein were not inclined to

hand over the land to the municipal council  by  private negotiations.  This
correspondence further shows intention of the parties in respect of the
subject land.     Shri A.G.Girkar, the Assistant Director of Town Planning,
Alibaug   has   filed   affidavit ­in reply   on   behalf   of   respondent   No.1   and
requested that the writ petition be dismissed.   
10. In the facts, we are of the view that the subject notice does
not meet the requirements of the provisions of section 127 of the Act of
1966.   It  suffers from want of requisite details.   The issue raised herein is
squarely covered by the judgment of the Division Bench of this Court in
the case of   C.V.Shah & A.V.Bhat  (supra).     There is no merit in the
petition.   
11. Petition is dismissed.   Rule stands discharged.
(S.B. SHUKRE, J.) (NARESH  H. PATIL, J.)

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