2009(2) ALL MR 347
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(AURANGABAD BENCH)

P.V. HARDAS AND K.K. TATED, JJ.

Shivram S/O. Kondaji Sathe & Ors.Vs.State Of Maharashtra & Ors.

Writ Petition No.3626 of 2006

9th February, 2009

Petitioner Counsel: Shri. A. B. KALE
Respondent Counsel: Shri. V. B. GHADGE,Shri. V. S. BEDRE

(A) Maharashtra Regional and Town Planning Act (1966), S.127 - Purchase notice under - Development plan was sanctioned on 23-5-1990 but no step taken for acquisition of land till 20-06-2002 - Even after receiving purchase notice acquisition not made within six months - Only step taken was passing of resolution on 3-8-2002 by Municipal Council, submitting proposal to Collector on 6-12-2002 and Collector collecting certain information from concerned Grampanchayat - All these steps were for acquisition and not of acquisition - Steps taken were only for purpose of seeking time so that S.127 does not came into operation - Held as acquisition was not effected till filing of this petition reservation of petitioners land has lapsed and he is entitled to a declaration of dereservation of land. 2007 ALL SCR 2232 - Foll. (Paras 6, 8)

(B) Maharashtra Regional and Town Planning Act (1966), S.127 - Land reserved for particular purpose in Development Plan - There is no prohibition on sale or purchase of such land. (Para 6)

Cases Cited:
Girnar Traders Vs. State of Maharashtra, 2007 ALL SCR 2232 : (2007)7 SCC 555 [Para 7]


JUDGMENT

K. K. TATED, J. :- Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, this Petition is heard finally at the stage of admission.

2. Present Petition is filed by the Petitioners under Article 14, 19, 226 and 227 of the Constitution of India seeking declaration that the reservation of Petitioners' land is lapsed for not acquiring inspite of purchase notice issued by them under Section 127 of the Maharashtra Regional and Town Planning Act, 1966. It is the case of the Petitioners that they are owners of land situated at Shirasgaon, Tq-Shrirampur, Dist-Ahmednagar bearing Gut No.92 admeasuring 5 Hectors. The said land is within Shrirampur Municipal Council, Shrirampur - Respondent no.5. It is the case of the Petitioners that Respondent No.5 prepared development plan for the development of the area of Municipal Council limits in which the Petitioners' land is situated. The development plan of Shrirampur was finally sanctioned by the Director of Town Planning - Respondent No.3 by its order dated 23/5/1990. It is the case of the Petitioners that as per the sanctioned development plan out of "Gut No.92 a piece of land admeasuring 6360 sq. mt. was reserved for the public purpose i.e. for play ground. Leaving apart the said area, the Petitioners developed the remaining area of the land by obtaining sanction to the lay out of the land and permission for non agricultural use. It is the case of the Petitioners that actually there was no need to reserve petitioners land for play ground purpose. The action of Respondent No.1 is totally politically motivated. It is the case of the petitioners that there are other lands in Shrirampur city which are reserved for the purpose of play ground. Though several lands were reserved for the purpose of play grounds for last more than 20 years, Respondent No.5 failed and neglected to take action for acquisitions of those lands. It is the case of the Petitioners that the scheme and development plan are sanctioned long back about 20 years but till today not a single plot/land is acquired by Respondent no.5 Planning Authority. Though the Development Plan was sanctioned on 23/5/1990 till filing of present Petition, Respondent No.5 Planning Authority has not taken any step or action for acquisition of Petitioners' land. Therefore the Petitioners issued notice on 20/6/2002 under Section 127 of the MRTP Act, 1966 to Respondent Nos.3 to 5. The said notice received by Respondent no.5 Planning Authority on the same date i.e. 20/6/2002. Though the Respondents received notice under Section 127 of MRTP Act, 1966, they failed and neglected to take any steps as per said notice within six months from the receipt of the same. It is the case of the Petitioners that as Respondents failed and neglected to take any steps and failed to acquire reserved plot of land within six months from the date of notice under Section 127 of the said Act, the reservation of the said land lapsed as per the provisions of law. Inspite of lapsing of said reservation Respondents failed and neglected to make necessary noting in Revenue Records. The Petitioners submitted that there is specific provision under Section 127 of the said Act that if no steps are taken for acquisition, the reservation, allotment or designation shall be deemed to have lapsed. Section 127 of the MRTP Act, 1966 reads as under:

"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 lands 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 became available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan."

3. Therefore, Mr. A. B. Kale, learned Counsel appearing on behalf of Petitioners submitted that in view of Section 127 of the said Act, this Court be pleased to declare that the reservation of the Petitioners' land has lapsed and same be treated as dereserved directing Respondents to make appropriate entry in revenue record to that effect.

4. Mr. V. B. Ghadge, learned A.G.P. appearing on behalf of Respondent Nos.1, 3 and 4 filed affidavit in reply opposing Writ Petition on the ground that as per MRTP Act, 1966 the authorities taken steps to acquire the petitioners land immediately after receipt of notice under Section 127 of the said Act. The learned A.G.P. contended that the Petitioners are not original owners of the land in question. The present petitioners purchased land in question after sanctioning of the development plan and town planning scheme Shrirampur II and therefore it is clear that Petitioners were aware about the said reservation and road affected area and inspite of that the Petitioners have purchased the said land and therefore Petitioners are not entitled to take benefit of purchase notice issued under Section 127 of the said Act. Learned A.G.P. further contended that after receipt of notice under Section 127 of the said Act, acquiring body forwarded acquisition proposal by their letter dated 6/12/2002 to the Collector, Ahmednagar and the same is within limitation as prescribed in the said Act i.e. within six months period from the receipt of notice under Section 127 of the said Act. Learned A.G.P. further submitted that after submission of the proposal for acquisition of the said land by Respondent No.5 the Collector, Ahmednagar vide its letter dated 21/3/2005 has sought certain information from Shrirampur Municipal Council and said information regarding land acquisition proposal was submitted by Respondent No.5 to the Collector, Ahmednagar. In view of these facts and circumstances, learned A.G.P. appearing for Respondent Nos.1, 3 and 4 submitted that there is no substance in the present Writ Petition and petitioners are not entitled for any relief in present Petition.

5. Learned Counsel Mr. Bedre appearing on behalf of Respondent No.5 filed affidavit in reply of Mr. Vijay Yeshwant Kulkarni opposing reliefs claimed by the Petitioners in the present Petition on behalf of Respondent No.5. Learned counsel appearing on behalf of Respondent No.5 submitted that though the petitioners were aware of the fact that property involved in the present Petition was reserved for public purpose and inspite of that they purchased land from Tukaram Laxman Kumawat on 28/3/2000 and as such the Petitioners were aware about the reservation proceedings initiated by the Municipal Council for the public purpose i.e. play ground. Therefore Petitioners are not entitled to claim any benefit as per purchase notice under Section 127 of the said Act. Learned counsel appearing on behalf of Respondent No.5 submitted that pursuant to purchase notice under Section 127 of the said Act dated 20/6/2002 Municipal Council has taken immediate steps for the acquisition of the said land. He contended that General Body of the Municipal Council has passed Resolution No.39 dated 3/8/2002 and accordingly passed Resolution for acquisition of Petitioners' land. He further submitted that the proposal of acquisition was submitted to the Collector, Ahmednagar for necessary acquisition of the said land on 6/12/2002. It is the case of the Respondent No.5 that pursuant to the said proposal, Collector, Ahmednagar has called upon Municipal Council to fulfil deficiencies in the proposal. It is the further case of Respondent No.5 that Municipal Council has removed/ cleared deficiencies as indicated by the Collector/Land Acquisition Officer in the proposal submitted by the Municipal Council on 28/6/2006. Therefore learned counsel appearing on behalf of Respondent No.5 submitted that pursuant to purchase notice dated 20/6/2002 under Section 127 of the said Act, Municipal Council has immediately taken steps towards acquisition within six months from the receipt of purchase notice issued by the Petitioners and therefore there is no necessity to interfere within writ jurisdiction of this Court. In view of these facts, learned counsel on behalf of Respondent No.5 prayed for dismissal of present Writ Petition.

6. It is admitted position in the present case that the Petitioners' property situated at Shirasgaon in the Municipal area of Shrirampur Municipal Council was reserved for play ground for last several years. Inspite of reservation of the said plot of land, Respondents failed to complete acquisition proceedings till filing of the present Writ Petition in this Court. For want of acquisition proceedings the Petitioners issued notice under Section 127 of the said Act to the Respondents and requested the Respondents either to acquire their land by following due process of law or dereserve the same so that the Petitioners can develop the said property. Though the Respondents raised objections about dereservation of the Petitioners' property from development plan on the ground that when the Petitioners purchased the said property from previous owner at that time the land was under reservation, this submission of Respondents cannot stand in law because they failed to complete the acquisition proceedings within time by following due process of law. Learned counsel appearing on behalf of Respondents have not pointed out single provision of law to the effect that when lands are reserved in town planning for particular purpose then no one can deal with those lands. For want of any provisions of law about prohibition of sale and purchase of the land which were reserved for particular purpose in development plans, the submission made by the Respondents cannot stand in law. The Respondents further submitted that after getting purchase notice under Section 127 of the said Act from the Petitioners they started acquisition proceedings in time. This submission cannot be acceptable in law because Respondents failed to point out about issuing notice under Section 6 of the Land Acquisition Act and or completing acquisition proceedings within statutory period as per Section 127 of the said Act.

7. Learned counsel Mr. A. B. Kale, for the Petitioners relied on Judgment of the Apex Court in the matter of Girnar Traders Vs. State of Maharashtra and Others, reported in (2007)7 S.C.C. 555 : [2007 ALL SCR 2232]. In the said Judgment the Apex Court held that the requisite step should be a step of acquisition of land and not a step for acquisition of land. The requisite steps towards commencement of acquisition in such a situation would not include step which may not result in actual commencement of the acquisition and is taken merely for the purpose of seeking time so that Section 127 does not come into operation, to defeat the purpose and object of the scheme of acquisition under M.R.T.P. Act. The relevant paragraphs in this Judgment i.e. Paragraph Nos.35, 36, 38, 54, 55, 56, 57, 59, 60, 61 and 62 are as under:

"35. Shri. Shekhar Naphade, Senior Advocate appearing for the State and Shri. Bhimrao Naik, Senior Advocate appearing for the Municipal Corporation contended that the steps were taken on 17/9/2002 when in pursuance of the resolution passed by the Municipal Corporation of Greater Mumbai, the Chief Engineer, (Development plan) sent a letter to the State of Maharashtra enclosing therewith a copy of a resolution 956 dated 16/9/2002, requesting that the steps be taken for acquisition of the land and this step taken by the Respondents would constitute "steps" for the acquisition of the land under clause (c) of Section 126(1) of the MRTP Act, the same having been taken on 17/9/2002 when the period of six months had not expired, the same to be expired on 18/2/2002 and, therefore, the provision of dereservation under Section 127 would not apply.

36. It is contended by Shri. Soli J. Sorabjee and Shri. U. U. Lalit, learned Senior counsel appearing for the Appellants that the intent and purpose of Section 127 of the MRTP Act is the acquisition of land within six months or the steps are taken for acquisition of the land within six months, which could only be when a declaration under Section 6 of the L.A. Act is published in the Official Gazette. It is submitted by the learned Senior Counsel that the words "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" are not susceptible of a literal construction and the words have to be given a meaning which safeguards against arbitrary and irrational executive action, which in fact may not result in acquisition of land for a long period to come. It cannot be doubted that the period of 10 years is a long period where the land of the owners is kept in reservation. Section 127 gives an opportunity to the owner for dereservation of the land if no steps are taken for acquisition by the authorities within a period of six months inspite of service of notice for dereservation after the period of ten years has expired.

38. Giving a plain meaning to the words used in the statute would not be resorted to when there is a sense of possible injustice. In such a case, the simple application of the words in their primary and unqualified sense is not always sufficient and will sometimes fail to carry out the manifest intention of law giver as collected from the statute itself and the nature of subject matter and the mischiefs to be remedied. If the plain words laid apparently to do some injustice or absurdity and at variance with, or not required by, the scope and object of the legislation, it would be necessary to examine further and to test, by certain settled rules of interpretation, what was the real and true intention of the legislature and thereafter apply the words if they are capable of being so applied so as to give effect to that intention. Where the plain literal interpretation of the statutory provision were to manifestly result in injustice never intended by the legislature, the Court is entitled to modify the language used by the legislature so as to achieve the intention of the legislature and to produce a rational construction.

54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owner's property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corpn. of Greater Bombay case. If the acquisition is left for time immemorial in the hands of the authority concerned by simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification

55. Providing the period of six months after the service of notice clearly indicates the intention of the legislature of an urgency where nothing has been done in regard to the land reserved under the plan for a period of 10 years and the owner is deprived of the utilisation of his land as per the user permissible under the plan. When mandate is given in a section requiring compliance within a particular period, the strict compliance is required therewith as introduction of this section is within legislative intent to balance the power of the state of "eminent domain". The State possessed the power to take or control the property of the owner for the benefit of public cause, but when the state so acted, it was obliged to compensate the injured upon making just compensation. Compensation provided to the owner is the release of the land for keeping the land under reservation for 10 years without taking any steps for acquisition of the same.

56. The underlying principle envisaged in Section 127 of the MRTP 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 the 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 MRTP 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.

57. It may also be noted that the legislature while enacting Section 127 has deliberately used the word "steps" (in plural and not in singular) which are required to be taken for acquisition of the land. On construction of section 126 which provides for acquisition of the land under the MRTP Act, it is apparent that the steps for acquisition of the land would be issuance of the declaration under Section 6 of the L.A. Act. Clause (c) of Section 126(1) merely provides for a mode by which the state Government can be requested fro the acquisition of the land under Section 6 of the LA Act. The making of an application to the state Government for acquisition of the land would not be a step for acquisition of the land under reservation. Sub-section (2) of Section 126 leaves it open to the State Government either to permit the acquisition or not to permit, considering the public purpose for which the acquisition is sought for by the authorities. Thus, the steps towards acquisition would really commence when the State Government permits the acquisition and as a result thereof publishes the declaration under Section 6 of the LA Act.

59. There is another aspect of the matter. If we read Section 126 of the MRTP Act and the words used therein are given the verbatim meaning, then the steps commenced for acquisition of the land would not include making of an application under Section 126(1)(c) or the declaration which is to be made by the State Government under sub-section (2) of Section 126 of the MRTP Act.

60. On conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the authorities under Clause (C) of Section 126(1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to sub-section (2) of Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or other authority.

61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)(c); and (ii) declaration by the State Government ion receipt of the application mentioned in clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126 (2). The only exception to this provision has been given under Section 126(4).

62. In the present case, the amended regional plan was published in the year 1991. Thereafter, the steps by making an application under clause (c) of sub-section (1) of Section 126 for issuance of declaration of acquisition and the declaration itself had to be made within the period of one year from the date of the publication of regional plan, that is, within the period of one year from 1991. The application under Section 126(1)(c) could be said to be a step taken for acquisition of the land if such application is moved within the period of one year from the date of publication of regional plan. The application moved after the expiry of one year could not result in the publication of declaration in the manner provided under Section 6 of the LA Act, under sub-section (2) of Section 126 of the MRTP Act, there being a prohibition under the proviso to issue such declaration after one year. Therefore, by no stretch of imagination, could the step taken by the Municipal Corporation under Section 126(1)(c) of making an application be said to be a step for the commencement of the acquisition of the land. After the expiry of one year, it is left to the Government concerned under sub-section (4) of Section 126 to issue declaration under Section 6 of the LA Act for the purpose of acquisition for which no application is required under Section 126 (1)(c). Sub-section (4) of Section 126 of the MRTP Act would come into operation if the State Government is of the view that the land is required to be acquired for any public purpose."

8. From the above Paragraphs it is crystal clear that the objection raised by the Respondents cannot sustain in law. It has been specifically held by the Supreme Court that the step taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not step for acquisition of land. It has been specifically held by the Supreme Court that

"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 MRTP 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."

In face of clear dictum of the Supreme Court we have no hesitation in rejecting the contention raised on behalf of Respondents that they started acquisition proceedings after receipt of purchase notice under Section 127 of the said Act within time. In fact when the present Writ Petition came up for admission after long period from the date of filing, counsel appearing on behalf of Respondents informed that till this date acquisition proposal is pending with the Collector. To that effect we can safely rely on letter dated 21/7/2006 from Respondent No.5 to Respondent No.2 forwarding some documents for the purpose of starting acquisition proceedings in respect of Petitioners' plot of land. Said letter is at page 36 in the present Petition. Even though Respondent No.5 filed their affidavit in reply dated 21/11/2006 nowhere they stated that they complied the notice under Section 127 of the said Act issued by the Petitioners. Therefore, it is crystal clear that the Respondents failed to acquire the Petitioners' property in question within particular time as per MRTP Act.

9. Considering the above mentioned fact situation, we allow the present Petition in terms of prayer clause (B), (C) and (D) which reads as under:

(B) To declare the reservation on the land of petitioners is lapsed i.e. the land is de-reserved.

(C) To direct the respondents to take effect to the dereservation of land in its records so as the petitioners will develop the land.

(D) To direct the respondents to permit the petitioners to develop the land in accordance with law.

No order as to the costs.

Rule made absolute in above terms.

Ordered accordingly.