Judgment:
B.R. Gavai, J.
1. Rule. Rule made returnable forthwith. Heard by consent.
2. By way of present petition, the petitioners are seeking writ of mandamus directing the respondents to release the land bearing survey No. 103 admeasuring 15H 71R, 104 admeasuring 3H 35R situated at Kopargaon, within the Municipal limits of Kopargaon, Municipal Council, Dist. Ahmednagar from reservation No. 32, 34, 91, 28 and 27 (Hereinafter referred as said 'Land').
3. The said 'land' is owned by the petitioner Nos. 5 and 6 and one Nikhil Vilas Kulkarni. The petitioner No. 1 to 4 are the tenants of the 'said land'. There is no dispute in so far as the tenency right of the petitioner No. 1 to 4 is concerned, between the petitioners No. 1 to 4 and the owners of the land.
4. The said 'land' was reserved for certain purposes, vide reservation No. 32, 34, 91, 28 and 27 in the development plan which was finalized in the year 1988.
5. Since no steps for acquisition of 'said land' wee taken by the respondents herein, the petitioner Nos. 1 to 4 served a purchase notice upon the respondent No. 2 on 11th December, 2007. However, since no steps were taken for acquiring the said 'land' within a period of six months as required under Section 127 of the Maharashtra Regional and Town Planning Act (Hereinafter referred to as the said 'Act'), the petitioners have approached to the Chief Officer of respondent No. 2.
6. Shri Bhandari, learned Counsel appearing on behalf of petitioners submit that, in view of the judgment of the Apex Court in the case of Girnar Traders v. State of Maharashtra reported in : (2007) 7 Supreme Court Cases 555, it was necessary that a declaration under Section 6 of the Land Acquisition Act, as required under Section 126(2) of the said 'Act', was required to be made within a period of six months from the date of service of purchase notice. He further submits that on non issuance of declaration as aforesaid the land stood deemed to be released from the reservation and as such available to the owners for the purpose of the development of the said land.
7. Shri Patil Beedkar learned Counsel appearing on behalf of respondent No. 2 fairly concedes legal position laid down by the Apex Court in the case of Girnar Traders cited supra. However, he submits that, since the notice under Section 127 of the said 'Act' was not given by the owners of the land, but was given by the petitioner Nos. 1 to 4, it was not the valid notice in law and as such, the contention of the petitioners that, land stood dereserved was without substance.
8. Shri Patil learned Counsel for the respondent No. 2 submits that, the word 'Any Person Interested in the Land' cannot be stressed to mean that a tenant in the land is also entitled to issue the notice.
9. Shri Bhandari learned Counsel for the petitioners in support of his submission submits that, the term 'Any Person Interested in the Land' has to be interpreted to mean that a tenant is also included in the said definition who is entitled to serve the notice. He relies on the judgment of the Apex Court in the case of Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation reported in : 1992 Supp (1) Supreme Court Cases 5, in this regard. He submits that, a similar term under the Land Acquisition Act has also been considered by the various High Courts and in the said pronouncement a 'tenant' has also been held to be included in the definition of 'persons interested'. Learned Counsel for the petitioner relies on the judgment of Full Bench of Punjab and Haryana High Court in the case of State of Punjab v. Gurdial Singh and Anr. reported in A.I.R. 1984 Punjab and Haryana 1, Division Bench of Gujrath High Court in the case of Shashikant Gopaldas and Co. and Anr. v. The Special Land Acquisition Officer reported in AIR Guj 278 (V58 C51), Division Bench of Andhra Pradesh High Court in the case of Katari Satyanarayana v. District Collector, Krishna at Machilipatnam reported in : AIR 1990 Andhra Pradesh 326, Division Bench of Calcutta High Court in the case of Comilla Electric Supply v. East Bengal Bank Ltd. reported in : AIR 1939 Calcutta 669.
10. Section 127 of the said 'Act' reads thus,
127. If any land reserved, allotted or designated for any purpose specified in any plan under this 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 this Act or under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on 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 or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation 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.
It can thus be seen that, the owner of the land or any person interested in the land is entitled to serve a notice on the Planning Authority. The question however, which is required to be answered as to whether, a tenant is included in the term 'any person interested in the land'.
11. The Apex Court in the case of Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation, cited supra, has considered the provisions of Rule 21 of the Bombay Town Planning Rules 1955. Under the said Rules, the Town Planning Officer was required to serve the notice upon the persons interested in any plot comprised in the scheme. The Apex Court in the case cited supra, has observed thus:
8. The question is whether the tenant or a subtenant is a person interested and is entitled to notice. It is obsvious that under Section 105 of Transfer of Property Act, a lease creates right or an interest in enjoyment of the demised property and a tenant or a sub tenant is entitled to remain in possession of the demised property until the lease is duly terminated and eviction takes place in accordance with law. Therefore, a tenant or a subtenant in possession of a tenement in the Town Planning Scheme is a person interested within the meaning of Rules 21(3) and (4) of the Rules. But he must be in possession of the property on the crucial date i. e. when the Town Planning Scheme is notified in the official Gazette. Every owner or tenant or a subtenant, in possession on that date alone shall be entitled to a notice and opportunity.
12. The term 'person interested' has also been interpreted in the various pronouncements of various High Courts, on which learned Counsel appearing for the petitioners has relied. The Division Benches of Gujrat, Andhra Pradesh and Calcutta High Courts have held that, the tenant in the land which was under acquisition was a person interested in so far as the provisions of Land Acquisition Act are concerned. In view of the judgment of Apex Court in the case of Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation cited supra and the purpose for which the said Act has been incorporated, we are of the considered view that, tenant would be included in the term 'any Person Interested in the Land'. In that view of the matter, we do not find any substance in the contentions raised on behalf of respondent No. 2/Municipal Council that, tenant would not be included in the term 'any Person Interested in the Land'. In any event, the present petition is filed by the tenants as well as the land lords. The petition is filed on 21st October, 2008. Even as on today we have asked the learned Counsel appearing for the respondent No. 2/Municipal Council, as to whether the Municipal Council was in a position to acquire the land after paying the compensation, Shri Beedkar Patil learned Counsel on instructions from the Chief Officer of the Municipal Council Kopergaon, states that, since there is paucity of funds, it is not possible for the Municipal Council to take immediate steps for acquisition of the land.
13. Shri Beedkar Patil learned Counsel appearing on behalf of respondent No. 2/Municipal Council relies on the judgment of SCINDIA Employee's Union v. State of Maharashtra and Ors. reported in : (1996) 10 S.C.C. 150 and submits that, workers were not included in the definition of a person interested, who were working in a workshop situated over the acquired land.
14. In so far as reliance placed by Shri Beedkar Patil on the judgment of the Apex Court cited supra is concerned, we find that, reliance is without any substance. The question that arose for consideration was as to whether notice under Section 5A to the workers of a workshop which was situated under the acquired land, was necessary and as to whether, they were persons interested. The Apex Court in the said case found that, under the said provisions limited scope for inquiry was as to whether lands sought to be acquired is needed for the public purpose and whether, the land is suitable for the purpose. It can further be seen that Sub Section (3) of Section 5A makes it amply clear that for the purpose of said section a person shall be deemed to be person interested, who would be entitled to claim an interest in compensation if the lands were acquired under the said 'Act'. It was found that, dispute between workers and the employer was beyond the scope of an inquiry under Section 5A of the Land Acquisition Act. In that view of the matter, we do not find that, the said judgment would be any way near to the facts of the present case.
15. We find that, the judgment of the Apex Court in the case of Jaswantsingh Mathurasing v. Ahmedabad Municipal Corporation cited supra would apply to the facts of the present case, wherein, it has been held that, tenants of the property were also 'persons interested' and entitled to be included in the definition of 'persons interested' under the Bombay Town Planning Rules.
16. Having held that, the tenant is included in the definition of 'Any Person Interested in the Land', who is entitled to serve a notice to the Planning Authority and further noticing that, the present petition is filed by the tenants as well as owners of the land and that inspite of valid service of notice under Section 127 of the said 'Act' no steps are taken for acquisition of the land as contemplated in the judgment of Supreme Court in the case of Girnar Traders cited supra, we have no other option but to allow the petition.
17. Rule is therefore, made absolute in terms of prayer clause 'C'.