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Bombay High Court
Bhagwan Bhika Paradhi vs The State Of Maharashtra Through Its … on 18 August, 2025
Author: R.G.Avachat
Bench: R.G.Avachat
2025:BHC-AUG:23038-DB
10-sr55.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9496 OF 2024
Bhagwan Bhika Paradhi,
Age : 66 years, occ. Agri.,
r/o. Paradhi Wada, Amalner Road,
Parola Road, Dist. Jalgaon ..Petitioner
Vs.
1. The State of Maharashtra
2. The Director of Town Planning Dept.,
Maharashtra State, Pune
3. Town Planning Department,
Jalgaon
4. Parola Municipal Council, Parola,
Through its Chief Officer ..Respondents
----
Mr.D.S.Bagul, Advocate for petitioner
Ms.P.J.Bharad, AGP for respondent nos.1 and 2
Mr.N.R.Dayama, Advocate for respondent no.4
----
CORAM : R.G.AVACHAT AND
NEERAJ P. DHOTE, JJ.
DATE : AUGUST 18, 2025
PER COURT :-
Heard.
2. This petition under Article 226 of the Constitution of India
has been filed for the following main relief:-
2 10-sr55
“(B) The Hon’ble High Court may be
pleased to issue writ of mandamus or any
other appropriate writ, order or direction in
the nature of writ and thereby declare that
the reservation of Play Ground vide
Reservation Site No. 52 (old) 23 (New) in the
sanctioned development plan of Parola
Municipal Council on the land of the
petitioner i.e. Gat No. 54 admeasuring
tentatively 0.22 R (writ property) has been
lapsed land in pursuant to purchase notice
dated 18.01.2003 and the land is free from
the reservation and available to the petitioner
for utilization as per the use permissible to
the adjacent and the respondent authorities be
directed to issue appropriate notification in
respect of deletion of Gat. No. 54 from
reservation.”
3. The land admeasuring 0.22 R has been reserved in the
final development plan dated 02.12.1990 and the revised
development plan dated 12.10.2017. The land has been reserved for
the purpose of play ground being, identified as site no.52 in the
latest development plan.
4. Since respondent no.4 – Parola Municipal Council
(planning authority) to have not taken steps for acquisition of the
land under reservation, the petitioner issued purchase notice under
Section 127 of the Maharashtra Regional and Town Planning Act,
3 10-sr551966 (“MRTP Act”, for short), on 18.01.2003. The notice was
received by respondent no.4. Still, it did not take effective steps
within the period of six months, from the date of receipt of such
notice. The petitioner has, therefore, approached this Court.
5. Learned counsel for respondent no.4 would submit that
the purchase notice was issued by only one of the co-owners, i.e.
petitioner herein. Two others have not preferred this petition. Unless
and until the land belonging to the petitioner herein is identified, the
same cannot be dereserved. He would further submit that there was
revision of the final development plan in the year 2017. Post such
revision, the petitioner has not issued any notice under Section 127
of M.R.T.P. Act. He would further submit that the earlier notice issued
way back in 2003 shall be deemed to have been waived, since the
petition has been filed 21 years thereafter. On all these grounds,
dismissal of the Writ Petition has been urged for.
6. We have considered the submissions advanced. Perused
the documents on record. It is not in dispute that the petitioner
herein is co-owner of the land under reservation. Admittedly, the
land was reserved for play ground way back in 1990. The petitioner
issued purchase notice dated 18.01.2003. Same was received by
4 10-sr55
respondent no.4. In spite of receipt of the said notice, admittedly, no
effective steps have been taken for acquisition of the land. It is true
that the petitioner approached this court 21 years after he issued the
notice. The fact, however, remains that in view of Section 127 of
M.R.T.P. Act, the deeming fiction regarding dereservation has to be
made. In the case in hand, the petitioner, who is one of the co-
owners of the land, necessarily, has interest in the land under
reservation. The phraseology of Section 127 of M.R.T.P. Act indicates
that it is the person, who is owner of the land under reservation or
having interest therein, can issue a notice under Section 127 of
M.R.T.P. Act. Since notice has been issued by the petitioner herein,
respondent no.4 could not be heard to say that other co-owners
ought to have joined the petitioners in issuance of the notice and
even in filing the Writ Petition. The other two co-owners are none
other than the family members. It is not that the other brothers are
interested to see that the land remains under reservation and is
acquired for the same. It is true that in 2017, there was revision of
the development plan. The writ land again came to be placed under
reservation for the vary purpose. True, thereafter, the petitioner has
issued no notice.
5 10-sr55
7. For better appreciation we need to advert to Section 127
of M.R.T.P. Act, which reads thus:-
127. Lapsing of reservations.
(1) 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 a declaration under sub-section (2) or (4) of
section 126 is not published in the Official Gazette within
such period, the owner or any person interested in the land
may serve notice, alongwith the documents showing his title
or interest in the said land, on the Planning Authority, the
Development Authority or, as the case may be, the
Appropriate Authority to that effect; and if within twenty
four 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.
(2) On lapsing of reservation, allocation or designation of
any land under sub-section (1), the Government shall notify
the same, by an order published in the Official Gazette.
8. Close reading of the aforesaid provision would indicate
that the owner of the land under reservation or a person having
interest therein, may issue a notice requiring the planning authority
to acquire the land. If the planning authority fails to take appropriate
steps within the time frame, in the present case within six months,
by virtue of deeming fiction, the land stands dereserved.
6 10-sr55
9. The petitioner herein issued the notice under Section 127
of M.R.T.P. Act way back in 2003. The petitioner then submitted an
application for development of the land. Since it was turned down,
the petitioner preferred an appeal against the said order. In the year
2017, the development plan was revised maintaining the very
reservation. Thereafter, the petitioner, admittedly, did not issue
notice under Section 127 of the M.R.T.P. Act. The issue, however, is
no longer res integra in view of paragraph 5 of the judgment and
order dated 21.08.2024, passed in Writ Petition No.6238 of 2024
(Vasantrao Digambarrao Salunke and anr. Vs. The State of
Maharashtra and ors). The period of 10 years is to be reckoned from
the approval of the first development plan and not its revision from
time to time. For better appreciation, we reproduce paragraph 5 of
the said order:-
5. Keeping in view the above dates and events which are
not contradicted, the law laid down by the Hon’ble Supreme
Court in Prafulla C. Dave and others Vs. Municipal
Commissioner and others, (2015) 11 SCC 90, would squarely
apply. The Hon’ble Supreme Court has concluded in paragraph
Nos. 18 to 23, in similar circumstances, as under:-
“18. On behalf of the appellants it is contended
that the period of ten years under Section
126 of the Act has to be reckoned from the
date of coming into force of the initial final
development plan and not the revised
development plan made under Section 38
of the Act. Any other view, according to the
learned counsel, would amount to a
7 10-sr55perpetual deprivation of the owner of land
which, at the same time is also not being
put to use for the public purpose specified
in the development plan. Section 127 of the
Act, it is contended, is a beneficial provision
in so far as the land owner is concerned
calling for a liberal interpretation of its
effect. Learned counsel has also drawn
attention to the provisions of Section 31(5)
of the MRTP Act which contemplates that in
so far as reservation of land for public
purposes specified in sub-section (b) and
(c) of Section 22 is concerned inclusion of
such land in the Development Plan should
not be made unless the authority is
reasonably confident of acquiring the land
within a period of ten years. Learned
counsel has, therefore, submitted that the
legislative intent was to give the authority
under the Act a maximum of ten years to
acquire the land earmarked for a public
purpose or at least to initiate steps for such
acquisition failing which the reservation
would lapse. Reliance has been placed on a
decision of this Court in Bhavnagar
University v. Palitana Sugar Mill (P) Ltd. in
support of the contentions made by them.
19. In reply, Shri Naphade has submitted that the
scheme of the Act would suggest that a revised
plan prepared under Section 38 tantamounts to a
complete development plan contemplated in
Sections 21 to 30 of the Act. The legislative scheme
takes into account that development is a dynamic
process and cannot be frozen by strict prescriptions
of time. Once the final development plan is revised
under Section 38 the period of ten years would
necessarily run from the date of coming into force
of such revised plan. Any other interpretation,
according to the learned counsel, would render all
provisions of the Act dealing with the revised plan
otiose. Shri Naphade has also argued that in the
event a revised plan under Section 38 is sanctioned
and brought into force the relevant date for
determination of compensation would stand
transposed to the fresh dates of the declaration
8 10-sr55
under Section 6 of the Land Acquisition Act which
would ensure payment of a fair compensation to
the land owner. This is by virtue of Section 126(4)
of the Act and, according to Shri Naphade, is how
the balance between public interest and the
interest of the land owner is maintained under the
provisions of the Act.
20. In so far as the decision in Bhavnagar University
(supra) is concerned, Shri Naphade has submitted
that there are certain provisions of the MRTP Act
which are not embodied in the provisions of the
Gujarat Act that was considered in Bhavnagar
University (supra). Specifically it is pointed out
that the provisions similar to Sections 37, 49 and
50 of the MRTP Act which provide alternative
escape routes to the land owners are absent in the
Gujarat Act. It is on the aforesaid broad basis the
decision in Bhavnagar University (supra) has been
sought to be distinguished.
21. Under Section 127 of the MRTP Act, reservation,
allotment or designation of any land for any public
purpose specified in a development plan is deemed
to have lapsed and such land is deemed to be
released only after notice on the appropriate
authority is served calling upon such authority
either to acquire the land by agreement or to
initiate proceedings for acquisition of the land
either under the MRTP Act or under the Land
Acquisition Act, 1894 and the said authority fails to
comply with the demand raised thereunder. Such
notice can be issued by the owner or any person
interested in the land only if the land is not
acquired or provisions for acquisition is not
initiated within ten years from the date on which
the final development plan had come into force.
After service of notice by the land owner or the
person interested, a mandatory period of six
months has to elapse within which time the
authority can still initiate the necessary action.
Section 127 of the MRTP Act or any other provision
of the said Act does not provide for automatic
lapsing of the acquisition, reservation or
designation of the land included in any
development plan on the expiry of ten years. On
the contrary upon expiry of the said period of ten
9 10-sr55
years, the land owner or the person interested is
mandated by the statute to take certain positive
steps i.e. to issue/serve a notice and there must
occur a corresponding failure on the part of the
authority to take requisite steps as demanded
therein in order to bring into effect the
consequences contemplated by Section 127. What
would happen in a situation where the land owner
or the person interested remains silent and in the
meantime a revised plan under Section 38 comes
into effect is not very difficult to fathom. Obviously,
the period of ten years under Section 127 has to
get a fresh lease of life of another ten years. To
deny such a result would amount to putting a halt
on the operation of Section 38 and rendering the
entire of the provisions with regard to preparation
and publication of the revised plan otiose and
nugatory. To hold that the inactivity on the part of
the authority i.e. failure to acquire the land for ten
years would automatically have the effect of the
reservation etc. lapsing would be contrary to the
clearly evident legislative intent. In this regard it
cannot be overlooked that under Section 38 a
revised plan is to be prepared on the expiry of a
period of 20 years from date of coming into force
of the approved plan under Section 31 whereas
Section 127 contemplates a period of 10 years with
effect from the same date for the consequences
provided for therein to take effect. The statute,
therefore, contemplates the continuance of a
reservation made for a public purpose in a final
development plan beyond a period of ten years.
Such continuance would get interdicted only upon
the happening of the events contemplated by
Section 127 i.e. giving/service of notice by the land
owner to the authority to acquire the land and the
failure of the authority to so act. It is, therefore,
clear that the lapsing of the reservation, allotment
or designation under Section 127 can happen only
on the happening of the contingencies mentioned
in the said section. If the land owner or the person
interested himself remains inactive, the provisions
of the Act dealing with the preparation of revised
plan under Section 38 will have full play. Action on
the part of the land owner or the person interested
10 10-sr55
as required under Section 127 must be anterior in
point of time to the preparation of the revised plan.
Delayed action on the part of the land owner, that
is, after the revised plan has been finalized and
published will not invalidate the reservation,
allotment or designation that may have been made
or continued in the revised plan. This, according to
us, would be the correct position in law which has,
in fact, been clarified in Municipal Corporation of
Greater Bombay vs. Dr. Hakimwadi Tenants’
Association & Ors.[2] in the following terms:
“If there is no such notice by the owner or
any person, there is no question of the reservation,
allotment or designation of the land under a
development plan of having lapsed. It a fortiori
follows that in the absence of a valid notice under
Section 127, there is no question of the land
becoming available to the owner for the purpose of
development or otherwise.”
22. In fact the views expressed in Bhavnagar University
(supra) in para 34 is to the same effect:
“34. ….. The relevant provisions
of the Act are absolutely clear, unambiguous and
implicit. A plain meaning of the said provisions, in
our considered view, would lead to only one
conclusion, namely, that in the event a notice is
issued by the owner of the land or other person
interested therein asking the authority to acquire
the land upon expiry of the period specified therein
viz. ten years from the date of issuance of final
development plan and in the event pursuant to or
in furtherance thereof no action for acquisition
thereof is taken, the designation shall lapse.”
23. The facts of the present case makes it plainly clear
that the notice under Section 127 by the appellants
was issued only two years after the final revised
plan under Section 38 had come into operation.
The rejection of the appellants’ plea before the
appellate authority under Section 47 of the Act as
well as the rejection of the writ petition filed by the
appellants before the Bombay High Court was,
therefore, fully justified. Consequently, we find no
11 10-sr55
reason to interfere with the impugned order dated
20th September, 2007 passed by the High Court of
Bombay. Accordingly, the appeal is dismissed.
However, in the facts and circumstances of the
case, we make no order as to costs.”
10. In view of the above and the fact that the petitioner
being one of the co-owners of the writ land, issued notice under
Section 127 of the M.R.T.P. Act and on receipt of the said notice,
respondent no.4 – planning authority, although submitted a proposal
for acquisition, did not deposit any farthing with the Collector
towards compensation to be paid to the land owners, it has to be
observed that respondent no.4 did not take any effective steps for
acquisition of the land under reservation within the time frame of six
months from the date of receipt of the notice. By virtue of the
deeming fiction under Section 127 of M.R.T.P. Act, the land, therefore,
stands dereserved. The petition, therefore, deserves to be allowed.
11. In the result, the petition is allowed in terms of prayer
clause (B). Respondent no.1 shall issue necessary notification
indicating the land to have been dereserved within a period of six
months from the date of this order.
[NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.]
KBP
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