Second Appeal No.622 of 2006

8th January, 2008

Petitioner Counsel: Mrs. ANJALI JOSHI
Respondent Counsel: K. H. DESHPANDE,S. R. DESHPANDE,D. M. KALE

Cases Cited:
Janardhan Appa Martand Vs. State of Maharashtra, 2003(4) ALL MR 231=2003(4) BCR 787 [Para 11]
Girnar Traders Vs. State of Maharashtra, 2007 ALL SCR 2232 : 2007(7) SCC 555 [Para 11]

JUDGMENT

JUDGMENT :- This second appeal is preferred by defendant No.3-the Municipal Council, since the suit filed by respondent No.1-plaintiff came to be decreed by the first Appellate Court. The parties shall hereinafter be referred to as plaintiff and defendants.

2. The facts shorn of details are as under -

Plaintiff-respondent No.1 is the owner of field S. No.10/1 of village Risod, Distt. Washim. There is a Municipal Council at Risod. The Development Authority prepared a Development Plan for said Municipal area of Risod. Survey No.10/1 belonging to plaintiff-respondent No.1 came to be reserved for the weekly market and cattle market by a sanction dated 23-11-1985. On 1-1-1986, the Government issued a Notification reserving the said land for the said purpose and giving out its intention to acquire the said land. In spite of the Notification in respect of the Development Plan, the defendants failed to acquire the said land. The plaintiff, therefore, issued a notice on 5-2-1996 to defendants calling upon them to purchase the land. After receipt of this notice, it is alleged that the appellant-defendant No.3 passed resolution to acquire the said land. On 11-7-1996, accordingly a proposal was sent by defendant No.3 to defendant No.1 for acquisition of the said land. However, the process of acquisition was not completed within period of six months. The plaintiff, therefore, submits that since the process of acquisition was not completed within period of six months as contemplated by section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as 'Act') the land stood dereserved. The plaintiff, therefore, sought a declaration to that effect by filing the suit.

3. The suit was resisted by the defendants on various grounds. It is the contention of the defendants that since the resolution of acquisition was passed and the proposal was sent to the Collector, it cannot be said that the land has been dereserved. It was contended that the process of land acquisition was still in progress and the plaintiff had no cause of action to file the suit.

4. The learned Civil Judge dismissed the suit, holding that there could be no dereservation as contended by the plaintiff. The Appellate Court, however, disagreed with the findings of the learned trial Court and held that the land stood dereserved because the process of acquisition was not completed within period of six months after service of the notice. Being aggrieved by that finding and the decree passed by the first Appellate Court, defendant No.3 has preferred this appeal.

5. While the appeal was pending before the Appellate Court, the plaintiff-respondent No.1 had filed Writ Petition No.1127 of 2001 before this Court seeking a direction to the Development Authorities and the Government to acquire the land and this writ petition was allowed to be withdrawn when the Government Pleader made a statement that the Government would complete the process of acquisition within period of six months.

6. This Court by Order dated 2-4-2007 had directed that the appeal shall be heard finally at the stage of admission itself.

7. After having heard the learned counsel for the appellant and the respondents, the following substantial questions of law arise for determination.

1(a) Whether the act of defendant No.3 - appellant in passing the Resolution on 2-7-1996 to acquire the land and forwarding a proposal on 11-7-1996 to Collector to acquire it could be said to be a step taken under section 127 of the M.R.T.P. Act and therefore the land could not be said to be dereserved ?

(b) If no, what is the effect thereof ?

2. Where the filing of a writ petition by plaintiff-respondent No.1 seeking direction against defendants to acquire the land and Court directing on 12-7-2001 to complete the process within six months from the date of the order, the time under section 127 of the Act for acquisition could be said to have been extended ?

8. Before proceeding to give reasons to answer the above substantial questions of Law, it would be necessary to narrate once again a few admitted facts. In the instant case, Development Plan for Risod Municipal Council area was sanctioned by the Government on 23-11-1985 and the Notification intending to acquire was issued on 1-1-1986. The land was thus reserved for weekly market and cattle market. No steps whatever were taken by the defendants for the acquisition for a period of 10 years from 1-1-1986. The plaintiff had, therefore, issued a notice of purchase under section 127 of the Act on 5-2-1996. Thereafter defendant No.3 Municipal Council passed a Resolution on 2-7-1996 to acquire the land and forwarded the proposal to the Collector on 11-7-1996 for acquisition. The Collector passed an order of acquisition on 21-4-1998. Later a Writ Petition No.1127 of 2001 was filed by plaintiff seeking direction to defendants to acquire the land and complete the process of acquisition. Upon the undertaking given by the Government Pleader that the Government would acquire the land and complete the process within six months, the Court allowed the writ petition to be withdrawn on 12-7-2001.

9. With these admitted facts, the above substantial questions need to be answered. I need not dilate much on various provisions in the Land Acquisition Act as well as M.R.T.P. Act. It would be sufficient to look into the provisions of section 127 of the Act for determination of the controversy involved in this appeal. It would therefore be appropriate here to reproduce section 127 of the said Act.

"127. Lapsing of Reservations.- 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 the 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."

10. A bare reading of section would make it clear that there are two types of limitations in the said section. One refers to acquisition of land reserved by agreement within 10 years from date of Notification of Development Plan or commencement of proceedings for acquisition within 10 years. It is, therefore, clear that the land has to be acquired either by agreement within ten years or the proceedings for such acquisition must be commenced within ten years. If neither of these two things is done within 10 years, the owner of the land gets a right to serve a notice on the concerned authorities, of purchase. Upon service of such notice, the authorities concerned are supposed to take steps for acquisition of the reserved land within six months and the section further says that if no such steps are taken for acquisition, the land shall be deemed to have been dereserved. Undisputedly, the acquisition was certainly not made within ten years from 1-1-1956. The plaintiff, therefore, had undisputedly acquired a right under section 127 of the Act to serve a notice of purchase.

11. The learned counsel for the appellant Mrs. Joshi contended that the Municipal Council had immediately passed a Resolution to acquire the land and had sent a proposal to the Collector on 11-7-1996. She submits that this act on the part of defendant No.3-appellant of passing Resolution and sending proposal is a step towards acquisition of the land as contemplated by section 127 of the Act. It appears from the postal acknowledgement (Exh.26) that the notice sent by the plaintiff under section 127 of the Act was served on the Chief Secretary of the State on 8-2-1996 and on defendant No.3-Municipal Council i.e. the appellant on 6-2-1996. It is, therefore, obvious that the steps for acquisition of the land at the most could be taken within six months from 8-2-1996 i.e. the date of service of notice on the Chief Secretary of the State. It can be seen from the above dates that the acquiring Body - defendant No.3 did pass a Resolution to acquire the land within six months and also forwarded the proposal for acquisition to Collector within six months from 8-2-1996. It may be mentioned that the Collector actually issued Notification of acquisition under section 6 on 21-4-1998 that is much beyond period of six months. According to Mrs. Joshi, learned counsel, as soon as the Municipal Council passed a Resolution and accordingly forwarded proposal to acquire the land within six months, it could be said that the acquiring body had taken steps towards acquisition of the land. She also submits that the acquiring body cannot be blamed if the Collector does not issue the Notification immediately. She submits that what is necessary is that an intention must be made known to the owner of the property that his land is certainly going to be acquired and that would be the step towards acquisition. The submission has no force. When a notification for reservation is issued, the owner comes to know the reason and the intention to acquire. But what is necessary under section 127 of the Act is completion of process for acquisition. The submission of Advocate Mrs. Joshi has no force. If the provisions of section is seen, it is clear that the Legislature wants to put an end to the dilemma, since already the land remains under reservation for 10 years and without actual acquisition. The Legislature intended that within ten years the proceedings must be completed so that the owner finally comes to know whether the land is acquired or not acquired and whether he is free to deal with it. The Legislature had, therefore, finally given six months latitude for completing the acquisition proceedings. As said earlier, therefore, the Legislature intended to put an end to dilemma as to whether the land still remains under reservation or acquisition or to stand dereserved. Mrs. Joshi, had relied on a decision reported in 2003(4) BCR 787 : [2003(4) ALL MR 231], Janardhan Appa Martand Vs. State of Maharashtra and ors.. This decision, in fact, is no more a good law, in view of the recent decision of the Supreme Court in 2007(7) SCC 555 : [2007 ALL SCR 2232], Girnar Traders Vs. State of Maharashtra and ors. The Supreme Court has elaborately dealt with the entire scheme of the M.R.T.P. Act and particularly sections 126 and 127 of the Act. Identical questions had arisen before the Supreme Court and while dealing with those questions, the Supreme Court made the following observations.

"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 Corporation 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 L.A. 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 under section 126(2) read with section 6 of the L.A. Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub-section (4) of section 126; and till then no declaration could be made under section 127 as regards lapsing of reservation and contemplated declaration of land being released and available for the landowner for his utilization as permitted under section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the landowner for dereservation. The steps towards 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.

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 with 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 utilize the land for the purpose it is reserved in the plan in a given time or let the owner utilize 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 true 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 LA Act. Clause (c) of section 126(1) merely provides for a mode by which the State Government can be requested for 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 L.A. Act.

58. The MRTP Act does not contain any reference to section 4 or section 5-A of the L.A. Act. The MRTP Act contains the provisions relating to preparation of regional plan, the development plan, plans for comprehensive developments, town planning schemes and in such plans and in the schemes, the land is reserved for public purpose. The reservation of land for a particular purpose under the MRTP Act is done through a complex exercise which begins with land use map, survey, population studies and several other complex factors. This process replaces the provisions of section 4 of the L.A. Act and the inquiry contemplated under section 5-A of the L.A. Act. These provisions are purposely excluded for the purpose of acquisition under the MRTP Act. The acquisition commences with the publication of declaration under section 6 of the L.A. Act. The publication of the declaration under sub-section (2) and (4) of section 126 read with section 6 of the L.A. Act is a sine qua non for the commencement of any proceedings for acquisition under the MRTP Act. 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 MRTP Act. Thus, unless and until section 6 declaration is sued, it cannot be said that the steps for acquisition are commenced.

63. The High Court has committed an apparent error when it held that the steps taken by the respondent Corporation on 9-9-2002 and 13-9-2002 would constitute steps as required under section 126(1)(c) of the MRTP Act. What is required under section 126(1)(c) is that the application is to be moved to the State Government for acquiring the land under the L.A. Act by the planning/local authority. Passing of a resolution by the Improvement Committee recommending that the steps be taken under section 126(1)(c) or making an application by the Chief Engineer without there being any authority or resolution passed by the Municipal Corporation, could not be taken to the steps taken of moving an application before the State Government for acquiring the land under the L.A. Act. The High Court has committed an apparent error in relying on these two documents for reaching the conclusion that the steps for acquisition had been commenced by the Municipal Corporation before the expiry of period of six months which was to expire on 18-9-2002."

12. It is thus clear that mere passing of resolution by acquiring body and forwarding of proposal to Collector as in this case is not a step towards acquisition. What the Supreme Court says is that until section 6 Notification is issued within six months, it could not be said that any step is taken towards acquisition. In the case at hand, the Notification or declaration under section 6 is issued by the Collector on 21-4-1998, while the time of six months had begun to run from 8-2-1996. From the above dates it would be clear that the declaration was issued by the Collector after period of two years and not within six months. In the circumstances, it must be said that the day on which the period of six months expiry i.e. on 8-8-1996 the land stood dereserved. Once the time begins to run it does not stop. The land was, therefore, rightly held to be already dereserved by operation of law on expiry of period of six months from 8-2-1996.

13. Mrs. Joshi, learned counsel for the appellant, argues that even after issuing notice under section 127 of the Act and filing of suit, the plaintiff-respondent No.1 had chosen to file a writ petition in the High Court seeking a direction to defendants to complete the acquisition. She submits that at the instance of the plaintiff the Court granted six months time to the defendants to complete the process of acquisition. She submits that order was passed on 12-7-2001 and therefore time of six months should be reckoned from that date. She also submits that the plaintiff had waived his notice when he approached the High Court in writ petition and sought further direction. The submission has no force. The first reason is that this is not a controversy involved in the suit. In the second appeal, the Court is bound to determine the controversy on the basis of the facts laid before the trial Court and there is no reason for this Court to take cognizance for what had happened in the writ petition. Even otherwise it could be said that the argument has no force. Simply because the plaintiff filed a writ petition, it could not be said that he had waived his notice. There is no question of waiver in such a case. The notice was already issued in 1996 and the land also already stood dereserved in 1996 by operation of law. At the most it could be said that the act of the plaintiff in filing a writ petition was redundant and surplusage. There cannot be an estoppel against the law. By operation of law the land was dereserved and therefore even if the plaintiff had taken any steps which were unnecessary, that did not amount to waiver or estoppel. We have seen that once the time begins to run, it does not stop. Hence, in the instant case, the time had begun to run from 8-2-1996 and had expired on 8-8-1996. Hence, the argument of the learned counsel has to be rejected. Furthermore, while passing the order in the writ petition on 21 -2-2002, this Court observed that the effect and operation of law cannot be suspended at all. Obviously, therefore, the proceedings in writ petition were absolutely redundant. It appears that in an over anxiety the writ petition came to be filed by the plaintiff. The anxiety must be due to the fact that for period of more than 10 years no steps for acquisition were taken and plaintiff wanted to put an end to the dilemma. The writ petition or the order passed therein could not override the provisions of law. Hence, these proceedings and the orders passed therein have no bearing on the decision of second appeal. Mrs. Joshi, learned counsel for the appellant, then submitted that the plaintiff has not been acting fairly as he was himself President of the Municipal Council. He saw to it that the acquisition proceedings do not commence within 10 years and even subsequently. The question as to whether the plaintiff was acting unfairly and was influencing the decision need not be gone into at all and will not affect the decision in the suit. It was also contended that the plaintiff should have fairly conceded before the Appellate Court that he had filed writ petition before the High Court and sought an order for acquisition of the land and by suppressing that the plaintiff has acted unfairly. The plaintiff may not have brought this fact to the notice of the Court but that did not prevent the defendants from placing those facts before the Court. Even if we assume that these facts were brought to the notice of Appellate Court that too would make no difference at all and cannot be influence the decision. The law had taken its own course already. The land stood dereserved even before filing of the writ petition. No order of the Court or agreement between the parties could extend the time as mandated by the law. Therefore, there is no question of reckoning time of six months from the date of order of the High Court in writ petition on 12-7-2001. The substantial questions of law are answered accordingly. There is no substance in the appeal. It is dismissed.

Appeal dismissed.