1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 36 OF 2009 Bhakti Vedanta Book Trust ) a Trust registered under the Bombay ) Public Trust Act, having its office at ) Iskcon, Hare Krishna Temple Land, ) J.V.P.D. Scheme, Juhu, Mumbai - ) 400 049. ).. ... Petitioner. VERSUS 1) The Mira Bhayandar Municipal ) Corporation, Bhayandar,District ) Thane. ) 2) The Municipal Commissioner, ) The Mira Bhayandar Municipal ) Corporation, Bhayandar,District ) Thane. ) 3) The Assistant Director of Town ) Planning, Mira Bhayandar ) Municipal Corporation, Late ) Indira Gandhi Bhavan, ) Chhatrapati Shivaji Maharaj Marg) Bhayandar (West),District-Thane.) 4) The State of Maharashtra ) Through Secretary, Department ) of Urban Development. ) 5) Mr. Nuruddin Dhoriwal ) 6) Mr. Hasmukh V. Viswadia ) 7) Mr. Shabbir Seharewala ) 8) Mr. Zanab Valikamivala ) 9) Mr. Rukariya Lakadawala ) 10)Mr. Maleka Lakadawala ) 2 11)Mr. Shabbir Vagher ) 12)Dr. Zehra Khatri ) 13)Abbas Kankkewala ) 14)Mr. Juzer Dohadwala ) 15)Mr. Shobbir Bhormal ) being the Trustees of Royal ) Society of Bombay, a charitable ) trust registered under the ) Societies Registration Act, 1860 ) and under the Public Trust Act, ) 1950, having its address at 390, ) Sir. J. J. Road, Mumbai-400 008. ) 16)Prof. Asgarali E. Lakdawala ) Founder, Principal and Hon. ) general Secretary of Respondent ) No.5's Royal College of Arts, ) Science and Commerce, 86, ) Saifee Jubilee Street, 1st Floor, ) Mumbai – 400 003. )... ... Respondents. Mr. Milind Sathe with Mr. Jas Sanghavi and Mr. Sumit Raghani i/by PDS Legal for the Petitioner. Mr. M. V.Limaye with Mr. Suyog Londhe for Respondent Nos.1 to 3. Mr. V. S. Masurkar, Government Pleader with Mr. C. R. Sonawane, AGP for Respondent No.4. Mr. S. Doctor i/by M/s. Federal & Rashmikant for Respondent No.6. CORAM : BILAL NAZKI and V. K. TAHILRAMANI, JJ. RESERVED ON: 16TH APRIL, 2009. PRONOUNCED ON : 28TH APRIL, 2009. 3 JUDGMENT (Per Bilal Nazki,J.) : Rule. 2. Learned Counsel appearing for the respective parties waives service of Rule on behalf of the respective respondents. 3. By consent, Rule made returnable and taken up for hearing and the writ petition is disposed of forthwith. 4. Heard learned Counsel for the parties at length. Pleadings are complete. 5. The Development Plan came into force from 15th July, 1997. Out of the land of 5300 sq. mtrs. which the petitioner claims to own, 2500 sq. mtrs. from the petitioner's plot was reserved for the purpose of “Extension of Royal Education Society”. This reservation came into effect on the day the plan came into force i.e. 15th July, 1997 and according to the petitioner this reservation ended on 15th July, 2007. Since the land was not acquired within the period of 10 years and was not utilised by the Royal Education Society, the petitioner gave purchase notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short “MRTP Act”). This notice was give on 25th July, 2007. The respondent Corporation informed the petitioner that the proposal for acquisition has 4 already been submitted. Therefore, the notice given by the petitioner was rejected. The petitioner submitted plans on 28th July, 2008 on the ground that the reservation had lapsed. The petitioner's plans were rejected on 29th September, 2008. Thereafter, the present writ petition was filed claiming a declaration that the reservation in question has lapsed. The Petitioner also prayed that the order rejecting the petitioner's proposal for construction of library building be quashed. Counter affidavit has been filed by respondent Nos.6, 8 to 10, 12, 13, 15 and 16. The counter has also been filed by the Town Planner on behalf of respondent No.4. 6. The controversy revolves around the interpretation of Sections 126 and 127 of the MRTP Act. Learned Counsel for the petitioner submits that if no steps are taken in terms of Section 127 of the MRTP Act within six months of giving a notice the land is to be deemed to be dereserved. On the other hand learned Counsel for the respondents submits that a piece of land reserved cannot be dereserved after notice under Section 126 of the MRTP Act was given by the beneficiary. He also submits that in the present case there was an order of this court for acquisition of land and therefore the land cannot be dereserved even if it is not acquired till date. 7. It may be pointed out that the facts are not at dispute. Therefore, we will directly go to the provisions of law applicable to the 5 present controversy. Sub-Sections (1) (a), (b) and (c) of Section 126 of the MRTP Act, which lays down : "126. Acquisition of land required for public purposes specified in plans.- (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land,- (a) by an agreement by paying an amount agreed to, or (b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act, 1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this section or under the Land Acquisition Act, 1894, as the case may be, shall vest in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.” 6 This Section lays down the mode for acquisition of land required for public purpose specified in plans. If any land is required to reserved for any public purpose, the land can be acquired by an agreement by paying an amount agreed to. It can also be acquired by grant of lease. And the third mode which becomes important in view of Section 127 of the MRTP Act is that a person interested may make an application to the State Government for acquiring such land under the Land Acquisition Act, 1984. Learned Counsel for the respondents submit that once the land was reserved for beneficiary, if an application was made by the beneficiary for acquisition of land, the land is not entitled to be dereserved. This interpretation of sub- Section (c) of sub-Section (1) of Section 126 of the MRTP Act looks to be attractive but cannot be accepted in view of sub-section (2) of Section 126, which lays down: (2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government (except in cases falling under section 49 and except as provided in section 113A) itself is of opinion that any land in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894 (1 of 1894), in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section: Provided that, subject to the provisions of sub-section (4), no 7 such declaration shall be made after the expiry of one year from the date of publication of the draft regional Plan, Development Plan or any other Plan, or Scheme, as the case may be. Sub-section (c) of sub-section (1) of section 126 applies to the land which is not reserved under section 126(1) but is needed for public purpose. If a person wants certain land to be acquired for public purpose, he can make an application to the Government and on receipt of such application if the Government is satisfied that the land specified in the application was needed for the public purpose, it may make a declaration to t hat effect in the Official Gazette in the manner provided in Section 6 of the Land Acquisition Act, 1894. So it is immaterial whether the petitioner makes an application under sub-section (c) of sub-section (1) of Section 126. Learned Counsel has shown us many letters written by the respondent Society but we are not referring to those letters in view of the clear mandate of section 126 of the MRTP Act. In any case, the Supreme Court has held that making of an application to the State Government for acquisition of the land would not be a step for acquisition of land under reservation. It has been held in Girnar Traders v/s State of Maharashtra & Ors., reported in (2007) 7 SCC 55, to which we will refer somewhat in detail hereinafter in this judgment. 8 8. Now comes Section 127 of the MRTP Act which deals with lapsing. This section lays down, if any land reserved, allotted or designated for any purpose specified in the plan, if not acquired by agreement within 10 years from the date on which final regional plan comes into force or if no acquisition proceeding has been taken under the Land Acquisition Act, the owner or person interested in the land may serve a notice on the Planning Authority and if within 6 months from the date of service of such notice land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation shall be deemed to have lapsed. This makes it clear that if the land has been reserved and is not acquired for 10 years, at the end of 10 years period if the owner or the person interested gives a notice to the State to acquire the land or takes steps for acquisition of land within 6 months from the service of notice and if the land is not acquired or no steps are taken for its acquisition, the reservation lapses. There is no dispute that the notice was given on the date mentioned in the petition. There is also no dispute that the land was not acquired within 6 months period of the service of notice. However, the contention is raised by the respondents to suggest that the steps were taken for acquisition of the land. Let us see what steps, according to the respondents, have been taken. 9. The beneficiary moved an application, to which a reference 9 has been made hereinabove. The beneficiary Society also filed a writ petition being Writ Petition No. 4341 of 2005. The court disposed of the writ petition on 16th February, 2006 and passed the following order : “Rule. Heard forthwith. On behalf of Respondent No.15, the Learned Counsel makes a statement that so far as the land which has been allotted to the Petitioners and which is to be acquired, if there is any illegal structure standing thereon, the same will be removed within a period of 12 weeks from today. Statement made on behalf of Respondent No.15 accepted. From the affidavit filed by Sanjay Adhav, Special Land Acquisition Officer, the Learned G. P. points out that the Municipal Corporation has already forwarded the necessary documents to the Collector in the prescribed form. Considering that, the Special Land Acquisition Officer to pass an award within six months. It is further made clear that on the Special Land Acquisition Officer calling on the Petitioners to deposit the compensation as computed by him, the same would be deposited by the Petitioners within four weeks of such demand. It is only thereupon that the Special Land Acquisition officer to proceed to pass an award and thereafter to take steps to hand over possession within one month after the award is passed. Rule made absolute accordingly. No order as to costs.” The writ petition itself was filed at a time when the reservation was in force. The order was also passed on 16th February, 2006 when the reservation under Section 127 of the MRTP Act was in force. Reservation came to an end on 15th July, 2007. The High Court noted that the Land Acquisition Officer had forwarded papers to the Collector and also noted 10 that the award would be passed within six months. It directed Land Acquisition Officer to call on the petitioners to deposit the compensation as computed by him and the petitioners in that petition were asked to deposit the amount within four weeks of demand. After the amount was deposited, the Land Acquisition officer was directed to proceed to pass an award. The learned Counsel for the respondent Society submits that in view of this order, it should be construed that steps as envisaged under Section 127 of the MRTP Act for acquisition of land have been taken. Learned Counsel for the petitioner submits that this order was passed when the reservation was in force and at that time the petitioner did not have any ground to defend the acquisition or oppose the reservation. But once they found that steps were not taken till the reservation was over, they gave a notice under Section 127 of the MRTP Act and steps were not taken even within six months of the notice, the land is deemed to be dereserved irrespective of the order of the High Court. He submits that the High Court' s direction to acquire and pass order would not construe to mean “proceeding taken” as steps for acquisition of land starts only with a notice under Section 6 of the Land Acquisition Act. 10. In this case, the learned counsel for the petitioner relies upon a judgment of the Supreme Court in the case of Girnar Traders (supra). 11 This was a case arising out of Sections 125, 126 and 127 of the Maharashtra Regional Town Planning Act. The question to be answered by the Court was framed by the Court itself in paragraph 19 in the following terms: "19. The question that requires consideration and answer in the present case is: Whether the reservation has lapsed due to the failure of the planning authority to take steps within the period of six months from the date of service of the notice of purchase as stipulated by Section 127 of the MRTP Act; and also the question as regards applicability of new Section 11-A of the Land Acquisition Act to the acquisition of land under the MRTP Act.” The Supreme Court went on to analyse different sections of the M.R.T.P. Act and considered in detail the effect of Sections 126 and Section 127 of the M.R.T.P. Act. In paragraph 31 the Supreme Court discussed and analysed Section 127 of the M.R.T.P. Act in the following terms: "31. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which a regional plan or development plan comes into force, or the proceedings for acquisition of such land under the MRTP Act or under the LA act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second part of Section 127 will come into operation, under which a period of six months is provided from the date on which the notice has been served by the owner within which the land has to be acquired or the steps as aforesaid are to be commenced for its acquisition. The six-month period shall commence from the date the owner or any person interested in the and serves a notice on the planning authority, development authority or appropriate authority expressing his intent claiming dereservation of the land. 12 If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of land within the period of six months from the date of service of the purchase notice. The word “aforesaid” in the collocation of the words “no steps as aforesaid are commenced for its acquisition” obviously refers to the steps contemplated by Section 126 of the MRTP Act.” While analysing the sections and giving interpretation to word “steps”, the Supreme Court in paragraph 57 said as under: "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.” So, the Supreme Court was emphatic in laying down that any application moved under sub-section (2) of Section 126 would not construe “steps” as 13 used in Section 127 of the MRTP Act. It held that the steps towards acquisition would really commence when the Statement Government permits the acquisition and as a result thereof publishes the declaration under Section 6 of the Land Acquisition Act. Admittedly, in the present case no notice under Section 6 of the Land Acquisition Act has ever been issued. This Judgement of three Judges was unanimous, but Justice P. K. Balasubramanyan partly disagreed with the majority judgement. The same view is reiterated in Prakash R. Gupta v/s Lonavala Municipal Council & Ors. Reported in (2009) 1 SCC 514. In paragraph 4 of the said judgment the Supreme Court held as under: "4. It is not disputed that the land was not acquired within ten years from the date on which the final regional plan or final development plan came into force and no proceedings for acquisition of such land under the Land Acquisition Act were commenced within the aforesaid period of ten years. After the said period of ten years, the appellant, who was the owner of the land, served a notice on Respondent 1 as required by Section 127 calling upon the said authority to acquire the said land within six months or take steps within that period, but neither was the land acquired within the further period of six months nor were any steps taken to acquire it. Hence, in our opinion, the reservation lapsed and the land has to be released in favour of the appellant.” 11. The respondents, on the other hand, have referred to an unreported judgment of the Supreme Court in Civil Application No. 2152 of 2008 (Poona Timber Merchants & Saw Mills Asso. V/s State of 14 Maharashtra & Ors.) delivered on 27th March, 2008. This is an order of reference to a larger bench. The cases referred to were the Civil Application No. 3703 of 2003 and Civil Application No. 3922 of 2007. The larger Bench of three Judges considered this judgment in the Judgment we have referred to herein above i.e. Girnar Traders v/s State of Maharashtra & Ors. (supra). 12. For the reasons above mentioned, writ petition is allowed. The land in question is declared to be unreserved. The Order passed by the respondents rejecting the application of the petitioners for construction of library building on the property in question is also set aside and the respondents are directed to consider the application of the petitioners afresh. 13. Rule made absolute in terms aforesaid. 14. In the circumstances of the case, there shall be no order as to costs. 15. A request for grant of stay of the Judgment is made. We decline to grant stay at this stage. Sd/- (BILAL NAZKI, J.) Sd/- (SMT. V. K. TAHILRAMANI, J.)