Shrikant S/O Uttamrao Bhutekar, Vs. the State of Maharashtra Through Its Secretary, Department of Town Planning and ors. - Court Judgment

Excerpt:
property - de-reservation - development plan - notice - section 127 of maharashtra regional and town planning act (mrtp), 1966 - land owned by the petitioners was reserved as per the development plan for development of a playground - petitioners sought de-reservation of their land as it was not acquired by the respondents in spite of several notices to them or as per their notification - hence, present petition - whether petitioners established that they have served notice as required under section 127 of the m.r.t.p. act and if so, served, does the land stand de-reserved - held, section 127 of the m.r.t.p. act firstly requires that a notice be served on the planning authority, development authority or as the case may be appropriate authority - secondly, the notice may be served by the owner or any person interested in the land - on such service of the notice on the authority, the reservation, allotment shall be deemed to have lapsed if no steps for acquisition are taken within the time prescribed - notice would, therefore, be valid if the notice is served on the authority - respondent clearly set out that a notice has not been served on on the municipal council - time to take steps would commence on a proper notice being served - ratio in c.v. shah and a.v. bhat v. state of maharashtra court applied - notice addressed to the commissioner, pune municipal corporation is a notice duly served - on this ground alone, as time has not commenced to run, the question of the land standing de-reserved by operation of law has to be rejected - petitioners are unable to show that valid notice as required under section 127 has not commenced and if that be so, the relief as sought by the petitioners cannot be granted - petition dismissedproperty - de-reservation - development plan - notice - revised proposal - section 38, 43 and 127 of maharashtra regional and town planning act, 1966 - petitioners sought de-reservation of the land as it has not been acquired within prescribed period - respondents by virtue of its subsequent development plan sought to acquire petitioners land for the same purpose proposed earlier - hence, present petition - held, there is a duty cast on the planning authority under section 38 of the m.r.t.p. act, at least once in twenty years from the date on which a development plan has come into operation to revise the development plan - in the instant case, steps have been taken for revision of development plan - under section 43 of the m.r.t.p. act, after the date on which the declaration of intention to prepare a development plan for any area is published in the official gazette or after the date on which a notification specifying any area as notified area is published in the official gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the planning authority except for the purposes set out therein - even if it is assumed that the reservation under the old development plan by virtue of a notice being served under section 127 and no steps are taken within in the time prescribed and as such the reservation no longer subsists, on account of subsequent events namely, draft plan of proposal which has been published, the planning authority while granting permission must have due regard of provisions of the draft plan - this would be when the petitioners applies for development if otherwise, that the reservation on the land stands de-reserved - issue answered accordingly - promotion; [v.g. palshikar, actg, c.j., a.p. deshpande & r.m. borde, jj] maharashtra employees of private schools (conditions of service) regulation act, 3/1978, section 5; promotion to post of head master of primary school held, seniority is to be counted from date he acquires requisite educational and training qualifications. for a valid appointment of a primary school teacher, a person must possess educational so also the training/teaching qualification. no person can be legally appointed who does not hold training qualification. hence, service rendered as an untrained teacher will not qualify for being counted to determine seniority. for appointment to the post of head master (by promotion) of a primary school, the seniority of the teacher is to be counted from the date he acquires educational and training qualifications as prescribed under schedule b of the m.e.p.s. rules. the seniority cannot be counted from the date of initial appointment and continuous officiation devoid of requisite qualification as prescribed in schedule b. - 3, it is clearly set out that a notice has not been served on 20-11-2006 on the municipal council. state of maharashtra 2005(3) all mr 197, to point out that a notice served on principal officer is a good service. 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 m.f.i. rebello, j. 1. the petitioners have filed present petition contending that they are the owners of the land admeasuring 1 h. 82 r. and 81 r. from survey no. 117 situated at osmanabad city. in terms of development plan for osmanabad city, this land has been reserved for play ground. respondent no. 3 is the municipal council for whom the land is reserved for development of play ground. by the present petition, the petitioners are praying that the land admeasuring 1 h. 82 r. and 81 r. from survey no. 117 situated at osmanabad city, be deleted from the revised development scheme of osmanabad city, as notified in notification dated 20-04-1985 and that reservation insofar as the petitioners land is concerned be cancelled.it is the case of the petitioners that on several occasions they have brought to the notice of the respondents that the land which is reserved be used for the purpose for which it reserved and if the respondents are not in a position to acquire the land then to de-reserve the same and to permit the petitioners to develop the land. they moved an application and raised objection before respondent nos. 3 and 4 by their application dated 04-07-2006. it was pointed out in the said application that the land has not been acquired nor has compensation been paid to the petitioners and lay out permission sought by the petitioners, has also not been sanctioned.2. the petitioners again on 20-11-2006 moved an application to respondent no. 3 stating therein that the concerned authorities are not taking steps and therefore, the said land be de-reserved which is reserved for the purpose of play ground. the said application, it was stated be treated as a notice under section 127 of the m.r.t.p. act. till date of filing of the petition i.e.26-02-2008 respondent -authorities have not initiated an proceedings for acquisition or taken steps. the petitioners are therefore entitled, to get the land back, as no steps have been taken within six months in terms of section 127 of the maharashtra regional and town planning act, 1966, as the reservation automatically lapsed. the petitioners rely on the communication dated 20-11-2006.3. osmanabad municipal council has published a notice in the newspaper on 19-06-2002 intimating commencement of the process for revised development plan. the earlier plan was notified in the year 1985. the petitioners herein have raised objection to the revised development plan. 4. on 21-02-2007 respondent no. 3 issued a notice to the petitioners in respect of their application dated 12-02-2007. petitioners were informed that their application dated 12-02-2007 cannot be considered as purchase notice in terms of section 127 of the maharashtra regional and town planning act, 1966 (hereinafter referred to as 'm.r.t.p. act'). it was also pointed out that the petitioners had raised objection in respect of revised development plan and an opportunity of hearing would be accorded to the petitioners. the petitioners received notice on 07-11-2007 to remain present in respect of objection raised to the revised development plan. accordingly, the petitioners have appeared and have made detailed representation for de-reservation. reference is made to w.p. no. 4977/2003 in respect of the revised development scheme of osmanabad city, where specific directions were issued against respondent no. 3. petitioners have been unable to show relation of order passed in that w.p. with the issue in the present petition.5. reply has been filed on behalf of respondent no. 3. according to respondent no. 3 petitioners are not the original owners of the land nor the petitioners had served purchased notice in terms of section 49 of the m.r.t.p. act on the municipal council and the planning authority in its proper perspectives. such a notice is mandatory. as only after that is the planning authority entitled to take steps for acquisition of the reserved land and if the authority fails to take the appropriate steps then only the land is entitled to be de-reserved. respondent no. 3 has started the process to initiate the second revised development plan in the year 2002 and a notice was published in the local newspaper on 19-06-2002. in the present revised plan, reservation no. 6 on the land survey no. 117 is kept for the purpose of play ground considering the future necessity of public at large in the developing city. the petitioners had objected to the proposed reservation on the land survey no. 117 on 04-07-2006. before this objection, the petitioners had not given any representation to the municipal council. the objection filed by the petitioners was heard by the planning team formulated for hearing the public objections. subsequent procedure for notifying the plan will be followed. on notice being received of revised development plan, it is submitted that by operation of law more so sections 23 and section 38, the land use for which development plan is being proposal is frozen. the petitioner is though not entitled to seek de-reservation of land or change the use of the land.in reply to para. 6 of the petitioner that the notice was served on 20-11-2006, it is specifically set out that this notice has not been served on the municipal council and inspite of that the council is taking steps for acquisition of the land survey no. 117 reservation no. 6 as per law and under the provisions of m.r.t.p. act. this specific averment about non receipt of notice has not been denied. for the aforesaid reasons, it is submitted that the petition should be dismissed.6. reply has also been filed on behalf of respondent nos. 1,4,5 and 6. it is set out that the government has sanctioned development plan for osmanabad (r) on 20-04-1985 which came into force on 01-06-1985. the development plan of osmanabad (second revision) was published in maharashtra government gazette on 23-06-2006 inviting suggestions, objections from the public within period of 60 days. the petitioner has raised objection on 04-07-2006. the petitioners land was reserved by following the due procedure under the m.r.t.p. act and consequently suitable orders be passed. 7. from the facts on record, what emerges is that there is a development plan notified in the year 1985. that development plan is sought to be revised in terms of the m.r.t.p. act and notice to that effect was published in 2002. the state government thereafter has published the second revised proposed development plan of osmanabad under section 26 and invited objections. in the second revised plan also the land reserved for play ground which the same reserved as per development plan in force.8. from the averments in the petition and reply filed, the questions that arises for consideration are:(i) in the instant case, has the petitioners established that they have served notice as required under section 127 of the m.r.t.p. act and if so, served, does the land stand de-reserved? (ii) whether after a revision is proposed to the development plan in force under the m.r.t.p. act, what is the effect of serving notice under section 127 of the act? 9. to answer the first issue we have to consider the provisions of section 127 of the m.r.t.p. act. the section firstly requires that a notice be served on the planning authority, development authority or as the case may be appropriate authority. secondly, the notice may be served by the owner or any person interested in the land. on such service of the notice on the authority, the reservation, allotment shall be deemed to have lapsed if no steps for acquisition are taken within the time prescribed. under section 136, it is required that the notice be served on any person who shall be deemed to be duly served, if it is sent by registered post or delivered at such office. this provision only mandates as to when it can be said that a notice is duly served. planning authority' is defined under section 2(19) of the m.r.t.p. act. similarly, 'local authority' is defined under section 2(15) of the act. under section 152 the powers of the planning authority are to be exercised by the officers as set out therein. this does not include section 127. under section 146 every member and every officer and other employee of a regional board or planning authority or development authority shall be deemed to be a public servant within the meaning of section 21 of the indian penal code. the notice therefore under section 127 is a notice to be served on the planning authority or as the case may be, appropriate authority. the notice would therefore be valid if the notice is served on the authority. in the first instance, it is sought to be contended that the notice was served on 20-11-2006. the notice of 20-11-2006 is addressed to the president/c.e.o. of the nagarparishad. secondly, respondent no. 3 has specifically averred that the said notice has not been received by them. this has not been controverted by the petitioners by filing any rejoinder. in para. 13 of the reply filed by respondent no. 3, it is clearly set out that a notice has not been served on 20-11-2006 on the municipal council. the time to take steps would commence on a proper notice being served. our attention is invited to the judgment of the division bench of this court in c.v. shah & a.v. bhat v. state of maharashtra 2005(3) all mr 197, to point out that a notice served on principal officer is a good service. our attention was specifically invited to para. 21 of the said judgment. the court there held that the notice addressed to the commissioner, pune municipal corporation is a notice duly served. on this ground alone, as time has not commenced to run, the question of the land standing de-reserved by operation of law has to be rejected.10. assuming that the notice was validly served, the question is whether the land stands de-reserved. on behalf of the petitioners, learned counsel has placed reliance on the judgment of the supreme court in girnar traders v. state of maharashtra and ors., with s.p. building corporation and anr. v. state of maharashtra and ors. : air2007sc3180 : : . in the majority judgment, the issue as to when steps are taken under section 127 have been considered. the court observed that the steps to commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that section 127 does not come into operation. dealing with section 127 the majority opinion, observed as under.the underlying principle envisaged in section 127 of the m.r.t.p. act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. the step taken under the section within 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 m.r.t.p. 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.the court, in its majority opinion, observed as under.it is section 6 declaration which would commence the acquisition proceedings under the mrtp act and would culminate into passing of an award as provided in sub-section (3) of section 126 of the m.r.t.p. act. thus, unless and until section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced.it is no doubt true that minority view is to the contrary and has taken the view that the issue must be referred to larger bench for consideration also of the issue, as to applicability of section 11a of the land acquisition act has already been referred to a larger bench in the case of girnar traders (supra).11. on behalf of respondents, learned counsel seeks to point out to the provisions of section 126(1) (c) and 126(2). it is submitted that under section 126(1)(c) the authority has to make an application to the state government and under section 126(2) it is the state government that has to take steps to issue the declaration under section 126(2), whereas under section 127 the planning authority, developing authority, or as the case may be, appropriate authority that has to take steps for commencing acquisition on notice being served. in our opinion, it would not be possible for us to consider such contention, considering majority opinion in m/s. girnar traders (supra), to take any other view.12. the preparation of a development plan is governed by chapter-iii of the m.r.t.p. act. on the plan being notified, it is the duty of every planning authority to take such steps are necessary to carry out the provisions of the plan in terms of section 42. in other words, after development plan is notified, the development in the area has to be in terms of the plan as notified. the first revised development plan came into force on 01-06-1985. there is a further duty cast on the planning authority under section 38 of the m.r.t.p. act, at least once in twenty years from the date on which a development plan has come into operation to revise the development plan. in the instant case, steps have been taken for revision of development plan. while revising the plan, various provisions had to be followed. once the plan is revised, that is a new development plan. (see judgment in mr. prafulla c. dave and ors. v. the municipal commissioner, pune municipal corporation and ors. all m.r. 2008(2) 400)under section 43 of the m.r.t.p. act, after the date on which the declaration of intention to prepare a development plan for any area is published in the official gazette or after the date on which a notification specifying any area as notified area is published in the official gazette, no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the planning authority except for the purposes set out therein. a perusal, therefore, of section 43 would indicate that the land cannot be developed, once the declaration of intention to prepare a development plan of any area is published. it would, thus, be clear from the reading of this provision that even if the reservation in the development plan as notified, stands de-reserved, yet considering section 43, the development can be carried out only with the permission of the planning authority. the planning authority while granting permission for development under section 46 shall have due regard to the provisions of any draft or final plan or proposal published by means of notice submitted or sanctioned under the act.in the instant case, as pointed out, even if it is assumed that the reservation under the old development plan by virtue of a notice being served under section 127 and no steps are taken within in the time prescribed and as such the reservation no longer subsists, on account of subsequent events namely draft plan of proposal which has been published, the planning authority while granting permission must have due regard of provisions of the draft plan. of course, this would be when the petitioners applies for development if otherwise, we hold that the reservation on the land stands de-reserved. the second issue is answered accordingly.13. in our opinion, as the petitioners are unable to show that valid notice as required under section 127 has not commenced and if that be so, the relief as sought by the petitioners cannot be granted. the petition, is therefore, dismissed. rule discharged. there shall be no order as to costs.