SHREE VINAYAK BUILDERS AND DEVELOPERS Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Bench has been constituted pursuant to an order dtd. 27/1/2022 by a Division Bench of this Court, comprising of Hon'ble Mr. Justice Sunil B. Shukre and Anil D. Kilor, JJ. The Division Bench expressed disagreement with view taken by another Division Bench of this Court in the case of Asha Sunil Zawar vs. State of Maharashtra and Ors. (W.P. No.5938 of 2020). The Division Bench has referred the following questions for opinion of this Larger Bench:

(2.) In a petition relating to declaration of lapsing of reservation by operation of Sec. 127 of MRTP Act, 1966, the Division Bench in the referring order has observed that the two modes of acquisition under Sec. 126(1) viz. (a) By agreement by paying an amount agreed to (b) Grant of TDR/FSI in lieu of compensation, depend on the agreement between the parties where consent of the land owner is equally important, rather is a pre-condition. The Division Bench has disagreed with the view expressed in Asha Sunil Zawar (supra) that the option regarding the manner in which reserved land should be acquired, can be exercised only at the discretion of the Acquiring Authority, and not at the discretion of the land owner.

(3.) The Division Bench disagreed with the view in Asha Sunil Zawar (supra) that the option of TDR does not rest with the land owner and that if he fails to approach the Planning Authority for TDR, the land owner cannot insist for acquisition of land under clause (c) of Sec. 126 and further that offering compensation of TDR within twenty four months from the date of purchase notice is a step towards commencing the acquisition. The Division Bench opined that mere acceptance of the application for TDR by the concerned Authority cannot be termed as a step towards acquisition in the absence of concrete and irreversible step towards acquisition without any other possibility. The Division Bench noted that the view expressed by the Division Bench in Madhukar S/o Haribhau Muley vs. The State of Maharashtra and Ors., (Writ Petition No.10162 of 2019), Shri Vasant Mahadeo Patil and others vs. The State of Maharashtra and others 2018 SCC OnLine Bom.2620, Keshaorao Narayan Chichghare vs. The State of Maharashtra and others (Writ Petition No.1343 of 2017) and The Nirmal Ujwal Credit Co-operative Society (Limited Nagpur) vs. The State of Maharashtra and Anr. (Writ Petition No.728 of 2017) has not been considered or discussed in the case of Asha Sunil Zawar (supra). As a result of difference of opinion, the Court formulated the questions referred to in the reference order.