Anantrao Kashiram Wathurkar vs State Of Maharashtra & Ors.

ORAL JUDGMENT (Per: Anil L. Pansare, J.)

Leave to delete prayer clause (a) is granted. Necessary correction be made forthwith.

Heard. Issue Rule, returnable forthwith. Heard Mr. S. O. Kashid, learned counsel for petitioner, Mr. A. V. Palshikar, learned A.G.P. for respondent No.1 and Dr. Anjan De, learned counsel for respondent Nos.2 and 3. With consent of learned counsel for the parties, the petition is taken up for final hearing.

The Prayer is to hold and declare that reservations at Survey Nos.180, 181, 182, as shown in the Development Plan in respect of Survey No.22/2 of Mauza Malkapur, Taluka and District Akola admeasuring 0.26 H.R. stood lapsed.

It is not disputed that the notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966, (“MRTP Act”) was issued by the petitioner in the year 1999. Learned counsel for respondent No.2, however, submits that copy of notice has been not annexed with the petition and further that no steps were taken by him after serving notice upon respondent No.2.

We fail to understand as to how can such a plea be put forth when the notice was admittedly served upon respondent No.2 in the year 1999. It is further surprising that respondent No.2 expects the petitioner to take certain steps after serving notice under Section 127 of the MRTP Act. According to us and in terms of Section 127, the necessary steps are to be taken by the appropriate authority and not by the owner of the land.

Section 127 reads thus:

As could be seen, upon serving notice under Section 127 of the MRTP Act, the appropriate authority is under obligation to take steps to acquire land within 24 months of receipt of notice. The consequence of failure to take steps is that the land mentioned in the notice is not required for acquisition and the reservation shall stand lapsed. The provision further indicates that thereupon the land shall be deemed to be released from the reservation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant plan.

In the present case, failure at the hands of respondent No.2 has already resulted into lapsing of the reservation. The land is deemed to be available to the petitioner for the purpose of development, in accordance with law. In such circumstances, the only way available, which as such is the mandate of law, is to notify the lapsing of reservation by an order to be published in Official Gazette. This order has to be passed by the Government in terms of Sub-section (2) of Section 127. The order could be passed only upon the appropriate authority submitting proposal to that effect to the State Government.

In that sense, respondent No.2 was under obligation to take further steps that would have enabled respondent No.1 to pass an order of lapsing reservation and to publish it in the Official Gazette.

Having failed to do so, respondent No.2 failed to discharge duty as envisaged under Section 127 of the MRTP Act. The failure resulted in petitioner approaching the Court and this is not the only case where such lapse is highlighted. Respondent No.2 will have to, therefore, make good the cost incurred by the petitioner.

Accordingly, we direct respondent No.2 to pay to the petitioner cost of litigation incurred by him, which we quantify to Rs.50,000/-. The cost shall be paid to the petitioner within four weeks from today. Respondent No.1 is at liberty to recover the cost from the officers of respondent No.2 who failed to discharge their duties.

This order shall be circulated by the State Government to all planning authorities, development authorities, and/or appropriate authorities so that necessary steps in terms of Section 127 of the MRTP Act will be taken in the cases where the land owner has served or will serve notice under Section 127 and where the necessary steps as required under law are not taken for acquisition of land within the stipulated time.

In other words, as and when the notice under Section 127 of MRTP Act is served upon the planning authorities, development authorities, and/or appropriate authorities, the process of acquisition should be commenced within stipulated time. If the same has been not or could not be commenced, the further steps for passing order by the State Government of lapsing reservation and to notify the same in the Official Gazette in terms of Sub Section (2) of Section 127 should be taken by the local authority as also by the State Government.

The State Government shall also take stock of the matters pending before the High Court seeking lapsing reservation and shall direct the local authorities to take appropriate steps else the costs of litigation will be imposed on the respondents. We make it clear that if necessary steps, as directed, are not taken by respondent No.1 within a period of four weeks from today, the costs of litigation in such matters will be jointly borne by the State Government and the local authority. Respondent No.1 shall report compliance of order in four weeks.

With the above observations, the petition is allowed. It is declared that reservations at Survey Nos.180, 181, 182 as shown in the Development Plan in respect of Survey No.22/2 of Mauza Malkapur, Taluka and District Akola admeasuring 0.26 H.R. stand lapsed. Necessary steps shall be taken by respondents for compliance under Sub-section (2) of Section 127 of the MRTP Act. The compliance shall be made as expeditiously as possible and in any case within eight weeks from today.

The writ petition is disposed of. Rule made absolute in the above terms.