Writ Petition No.5619 of 2003

25th February, 2014

Petitioner Counsel: Shri S.P. SHAH
Respondent Counsel: Smt. A.V. GONDHALEKAR, Shri N.N. DESALE

Cases Cited:
Girnar Traders Vs. State of Maharashtra, 2007 ALL SCR 2232=2007(7) SCC 555 [Para 14,15,21]
Shrirampur Municipal Council Vs. Satyabhamabai Bhimaji Dawkher, 2013(3) ALL MR 477 (S.C.)=(2013) 5 SCC 627 [Para 16]
State of Maharashtra Vs. Bhakti Vedanta Book Trust & Ors., 2013(3) ALL MR 450 (S.C.)=2013(5) Mh.L.J.195 [Para 17,21]
Pitambar Bhika Chaudhari Vs. The State of Maharashtra & Ors., W.P. No.2021/2013, Dt.16/1/2014 [Para 22]

JUDGMENT

RAVINDRA V. GHUGE, J. :- Heard learned Advocates for the respective parties.

2. Rule.

3. By consent, Rule made returnable forthwith and the petition is taken up for final disposal.

4. The Petitioner is the owner of S.No.569/1 admeasuring 2 Hectares and 12 Ares situated at Dhule. The said land is the ancestral property of the Petitioner.

5. The petitioner contends that, first development plan for city of Dhule came into effect on 18.6.1958. Part of the land of the petitioner was shown to be reserved for a Garden and some part of the same land was shown to be reserved for a 100' wide ring road under the said development plan. Though the said plot was reserved for a garden as well as for a ring road in the year 1958, no garden as on date is developed on the said land inasmuch as no road is constructed through the land of the petitioner. The said ring road is constructed through the adjoining land of the petitioner.

6. It is further contended that the second development plan for the city of Dhule came into force in the year 1983. The reservation of the petitioner's land for the purpose of garden and the road continues to be shown despite no progress having been made after the finalization of the earlier final development plan. According to the petitioner in 1968, the lay out plan of the said plot, Survey No.569/1, was sanctioned. No plots were allowed to be demarcated, despite the application made by the petitioner, for conversion of the whole land for non-agricultural purpose. Neither is the said land being acquired, nor is the petitioner allowed to develop his property.

7. The petitioner states that in 1991 respondent No.3 Dhule Municipal Council, as it then was, resolved to construct 100' wide road. After the said resolution, the construction of the road began which did not even touch the petitioner's land.

8. The petitioner, therefore, issued a notice under Section 127 of the Maharashtra Regional Town Planning Act, 1966 ("MRTP Act", for brevity, hereinafter) calling upon the respondents to commence the proceedings for fixation of the price of the land reserved for the garden and the ring road and take possession of the same within six months (the period of six months is now enhanced to twelve months by the amendment of 2009). It was stated in the said notice that the failure of the respondents to utilize the said land for the purpose of reservation shall tantamount to the reservation being lapsed and the land shall be deemed to be released from the reservation.

9. Section 127 of the MRTP Act, as it stood then, 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 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 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."

10. The petitioner states that despite its notice, the respondents failed to initiate any steps of acquisition of the said land. This constrained the petitioner to issue yet another notice dated 24.6.2000 under Section 127 of the MRTP Act. Respondent No.3 Municipal Council, by its letters dated 13.7.2000 and 20.7.2000 informed the petitioner that the proposal for acquisition of his said land is forwarded to respondent No.2 - District Collector of Dhule in furtherance of resolution No.48, dated 6.8.1999.

11. The petitioner has, therefore, submitted that this petition is filed on 21.12.2002. Even at the time of the filing of the petition and after a lapse of 45 years, the respondents have not taken any steps of acquisition of the petitioner's land. Even on the date on which this matter was heard, i.e. 10.2.2014, no steps have been taken by the respondents. It is, therefore, contended that the instant case is squarely covered under Section 127 of the MRTP Act.

12. An affidavit-in-reply dated 27.7.2007 has been filed by Shri Subhash Shankar Bharambe, who was working as Town Planner, Town Planning and Valuation Office, Dhule. It is contended that the Dhule Municipal Council passed a resolution No.291 on 23.8.1991 and No.48 on 6.8.1997, resolving to acquire the said land. Proposal was submitted to the Collector, Dhule, vide letter No.548 dated 6.9.1993. It is admitted that the petitioner has served a notice under Section 127, which was received by the respondent. The affidavit does not even whisper as to whether the said land has been taken possession of or whether proceedings for acquisition have been commenced. We find the said affidavit to be as feeble as it could be and clearly appears to be a vague stand adopted by the respondents to oppose this petition.

13. We have, with the assistance of the learned advocates for the respective sides, gone into the petition paper book and its annexures. The fact situation is writ large on the face of the record.

14. The Hon'ble Apex Court in Girnar Traders Vs. State of Maharashtra, reported at 2007(7) S.C.C. 555 : [2007 ALL SCR 2232] has laid down the Law and paragraph No.54 of the said judgment relevant to this case reads as under :

"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 owners property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corporation of Greater Bombay Case (supra). If the acquisition is left for a time immemorial in the hands of the concerned authority 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 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 land owner 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 de-reservation 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 land owner for de-reservation. 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."

15. Paragraph Nos.56 and 57 of the Girnar Traders' Case, [2007 ALL SCR 2232] (supra), read thus :

"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 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 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 LA Act."

16. In the case of Shrirampur Municipal Council Vs. Satyabhamabai Bhimaji Dawkher, reported at (2013) 5 SCC 627 : [2013(3) ALL MR 477 (S.C.)], the Apex Court has observed in para Nos. 41, 42 and 43 as under :

"41. In our view, there is no conflict between the judgments of the two- Judge Bench in Hakimwadi Tenants' Association (supra) and the majority judgment in Girnar Traders (II). In both the cases, this Court emphasized that if any private land is shown as reserved, allotted or designated for any purpose specified in any Development plan, the same may be acquired within ten years either by agreement or by following the procedure prescribed under the 1894 Act, and if proceedings for the acquisition of land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, then the land shall be deemed to have been released from such reservation, allotment, etc. In Hakimwadi Tenants' Association (supra), notice under Section 127 was issued on 1.7.1977. The State Government did not take any steps for the acquisition of land within next six months. The learned Single Judge and the Division Bench of the High Court held that in terms of second part of Section 127, the reservation of land for recreation ground will be deemed to have lapsed. This Court unequivocally approved the view expressed by the High Court (paragraphs 10 and 11). The majority judgment in Girnar Traders (II) appears to suggest that the question considered and decided in Hakimwadi Tenants' Association was slightly different, but having carefully gone through paragraphs 10 and 11 of the first judgment, we are convinced that the question involving interpretation of Section 127 was very much considered and decided by the two-Judge Bench in favour of the landowner and there is no conflict in the opinion expressed in the two judgments.

42. We are further of the view that the majority in Girnar Traders (II) had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government.

43. The expression "no steps as aforesaid" used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade's interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution."

17. In the case of State of Maharashtra Vs. Bhakti Vedanta Book Trust and others [2013(5) Mh.L.J.195] : [2013(3) ALL MR 450 (S.C.)], the Apex Court has concluded that when a private land, reserved in the development plan, is not acquired within 10 years, either by agreement or by following the procedure prescribed under Land Acquisition Act and if proceedings for acquisition of the land are not commenced within that period and a further period of 6 months from the date of service of notice u/s 127 of the M.R.T.P. Act, 1966, the reservation will be deemed to have lapsed and the land will be available for development by the owner.

18. Section 124 of the MRTP Act clearly provides for a particular land being reserved, allotted or designated for a specified purpose as per the plan and such a land has to be acquired within a period of ten years from the date on which the final original plan or the final development plan comes into force. If such proceedings for acquisition of the land as per the scheme provided under the MRTP Act are not undertaken for achieving the object enshrined under the said Act, the reservation is deemed to have lapsed after ten years.

19. Pursuant to the effective steps under Section 127 of the MRTP Act having been undertaken by the owner of the land, such land would be deemed to have been released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise is permissible in the case of the adjacent land under the relevant Act.

20. The twelve months (as amended by Maharashtra Act XVI of 2009 dated 25th June, 2009 ) time frame provided under the Act from the date of receipt of the purchase notice under Section 127 bind the acquiring body to take steps "of acquisition" and not "towards acquisition". It is a step of acquisition of land and not a step for acquisition of land. Failure of the authority to take steps which results 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.

21. The Apex Court, in the case of State of Maharashtra V. Bhakti Vedanta Book Trust and others, [2013(3) ALL MR 450 (S.C.)] (cited supra) has reiterated the view expressed by it in paragraph No.54 of the Girnar Traders case, [2007 ALL SCR 2232] (supra).

22. We have observed in a similar case, decided on 16.1.2014 between Pitambar Bhika Chaudhari Vs. The State of Maharashtra and others [Writ Petition No.2021 of 2013] as under:-

"20. We find from the contentions of the respondents that an explanation has been put forth for denying the rights of the petitioner. As has been expressed by the Division Bench of our Court in the case of Ganpat Shripat Gotre Vs. State of Maharashtra and others, (Writ Petition No. 1143 of 2011 decided on 06/08/2013), the respondents are attempting to merely create a picture of acting seriously for acquisition of the concerned land, when factually steps taken by the Municipal Council Faizpur do not inspire us to conclude that they had acted seriously for acquiring the land within the time frame set out u/s 127 of the M.R.T.P. Act, 1966. Such contentions deserve no consideration in view of the judgments referred above and also in view of the judgment of the Apex Court in Bhavnagar University Vs. Palitana Sugar Mill Private Limited and others, reported at AIR 2003 SC 511.

21. The Division Bench of our Court has also taken a similar view in the matters of Baburao Dhondiba Salokhe Vs. Kolhapur Municipal Corporation, Kolhapur and another, reported in 2003(3) Mh.L.J. 820 as well as in the matter of Vijaykumar S/o Motilal Hirakhanwala Vs. State of Maharashtra and others (Writ Petition No.11759 of 2010 decided on 17th February, 2011).

22. It is, therefore, Trite law that pursuant to a notice u/s 127 of The M.R.T.P. Act, 1966, the reservation would lapse for having not taken effective steps and the acquisition would not be revived merely by passing a resolution. In other words, proposals need to be moved by the Acquiring Body effectively and steps in that direction are required to be taken. Rights accrued to the owner of the land would not be withered away by such superficial actions of the respondents."

23. As such the Writ Petition is allowed and it is hereby declared that the reservation, designation or allotment provided under the development plan of the then Dhule Municipal Council - respondent No.3 in respect of the subject property has lapsed and the same shall be now available to the petitioner for the purpose of development or otherwise, as is permissible in the case of the adjacent land under the relevant plan.

24. The State Government is hence, directed to take necessary steps for notifying the lapsing of the reservation in the Official Gazette as expeditiously as possible and preferably within six months from today.

25. Rule is accordingly made absolute in above terms. No order as to costs.

Petition allowed.