1 W.P. No. 4698/1997 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4698 OF 1997 Madanlal Lalchand Jain Age : 38 Yrs., R/o : 1692, Tilak Road, Nandurbar Dist. Dhule. .... PETITIONERS V E R S U S 1. The State of Maharashtra Through the Director Town Planning & Valuation Department, M.S., Pune. 2. The Collector Dhule. 3. Municipal Council, Nandurbar,through Chief Officer, Nandurbar, Municipal Council, Nandurbar. .... RESPONDENTS Mr. J.R.Shah, Advocate for petitioner. Mr. V.D.Rakh, Assistant Govt. Pleader for State. Mr. A.B. Girase, Advocate holding for Mr. R.B.Raghuwanshi, Advocate for respondent no. 3. 2 W.P. No. 4698/1997 - ( J ) CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE : 30/6/2010 ORAL JUDGMENT : [ PER – S.V.GANGAPURWALA, J. ] 1. The petitioner herein is the owner of a property bearing S.No. 38/3 situated at Nandurbar. The Assistant Director of Town Planning, Jalgaon published draft development for the town planning of Nandurbar on 14/2/1976. The said development plan was sanctioned on 6/1/1979 by the Government. In the said sanctioned development plan, S.No. 38/3 was reserved as site no. 10 for shopping centre. 2. As the said land was not acquired even though the same was under reservation for more than 18 years, the present petitioner invoking his rights U/s 127 of the Maharashtra Regional and Town Planning Act ( For short, ‘ M.R.T.P. Act ’ ) issued purchase notice on 30/7/1996 to respondent no. 3, calling upon him to acquire the said reserved land i.e. site no. 10. 3. The said notice was served on respondent no. 3. Respondent no. 3 passed resolution bearing No. 97 for acquisition of the said reserved site no. 10. In spite of the fact that the resolution was passed by the Municipal Council to acquire the said land, no further steps have been 3 W.P. No. 4698/1997 - ( J ) taken by it. No declaration U/s 6 of the Land Acquisition Act was published nor any proposal of acquisition was initiated by respondent no. 2 – Collector. Six months period as contemplated U/s 127 of the M.R.T.P. Act came to an end on 29/1/1997. According to the petitioner, as the said land is not acquired nor any steps of acquisition of the said land has been taken within the stipulated period of six months, the said land automatically stands de-reserved by operation of Statute on 29/1/1997. The petitioner as such has prayed for declaration that the reservation of the said site no. 10 for shopping centre has lapsed, with further direction against respondent no. 2 not to proceed with the acquisition of the said site no. 10. 4. Respondent no. 1 in its affidavit has contended that the said site no. 10 is again reserved for shopping centre in the revised draft development plan of the Nandurbar Municipal Council and the same has been published on 18/6/1998. It was also contended that respondent no. 3 has taken steps for acquisition of the property. Resolution came to be passed for acquisition of the land on 16/12/1996 by respondent no. 3 and in view of the same, the steps in furtherance of the acquisition has been taken and as such the reservation does not lapse. It was also contended that respondent no. 3 has submitted the proposal to the Collector, Dhule on 31/1/1997 i.e. the last date of the expiry of six months. It was contended 4 W.P. No. 4698/1997 - ( J ) that it has not led to lapse of reservation. The respondent relied on provisions of Section 10 of the Bombay General Clauses Act, 1904 contending that first day is to be excluded and as such the submission of proposal to the Collector is within time. 5. Mr. J.R. Shah, the learned counsel for the petitioner put forth following submissions : (i) As the declaration U/s 6 of the Land Acquisition Act has not been published within the stipulated period of 6 months after service of purchase notice as required U/s 127 of the M.R.T.P. Act, the reservation by fiction of law lapses and the said site is available to the petitioner for development. He relied on the Judgment of the Apex Court in case of Girnar Traders V/s State of Maharashtra & Others reported in ( 2007 ) 7 Supreme Court Cases – 555 [ Civil Appeal No. 3703 of 2003 ]. (ii) The land which stood de-reserved by operation of Statute and right created in favour of the petitioner to use the said land can not be abridged by again reserving it for same purpose in the revised draft development plan. More so, when before the preparation of the draft development plan, the application for permission to develop was already 5 W.P. No. 4698/1997 - ( J ) submitted. For the said purpose, relies on the Judgment of the Apex Court in the case of Bhavnagar University V/s Palitana Sugar Mill Pvt. Ltd. and others reported in AIR 2003 Supreme Court – 511, so also the Judgment of the Division Bench of this Court in the case of Kishor Gopalrao Bapat & Oths. V/s State of Maharashtra & another reported in 2006 (1) ALL MR – 232 and in the case of Baburao Dhondiba Salokhe V/s Kolhapur Municipal Corporation & another reported in 2003 (5) Bom. C.R. - 232. 6. Mr. Girase, the learned counsel for respondent submitted - (i) That the steps for acquisition of the said land has been taken in as much as the Municipal Council had passed the resolution and had submitted the proposal for acquisition to the Collector, Dhule within the period of six months. (ii) Even if it is assumed that the said land stood de-reserved, still as the said land was again included in the draft development plan, the petitioner will not be entitled to develop the said land. The Statute does not dis-entitle the planning authority to again reserve the said site, which stood de-reserved by operation of Section 127 of the M.R.T.P. Act. For said purpose relied on the Judgment of the Apex Court in the case of Ranjan Manubhai Doctor and others V/s State of Maharashtra and others reported in 2005 (1) Mh.L.J. - 718 . 6 W.P. No. 4698/1997 - ( J ) 7. We have heard the respective counsels at length. 8. It is not disputed that the respondents had failed to publish a declaration U/s 6 of the Land Acquisition Act within the stipulated period of 6 months after the service of notice U/s 127 of the M.R.T.P. Act. Even till this date, the declaration U/s 6 of the Land Acquisition Act is not issued. 9. The Apex Court in case of Girnar Traders V/s State of Maharashtra & Others reported in ( 2007 ) 7 Supreme Court Cases – 555 [ Civil Appeal No. 3703 of 2003 ] has held that the steps that are contemplated under the provisions of the M.R.T.P. Act are steps of acquisition and not steps for acquisition. The Apex Court in the said Judgment has laid down that the steps of acquisition would mean publication of a declaration U/s 6 of the Land Acquisition Act and not merely passing any resolution. In the present case, admittedly, even as it accepted by the respondent, the declaration U/s 6 of the Land Acquisition Act has not been published at any point of time. In view of the same, the reservation will be deemed to have lapsed on the expiry of the six months on the service of notice U/s 127 of the M.R.T.P. Act. 10. To adjudicate the next contention of the respondent that as the said property has again been included in the draft revised development plan on 18/6/1998, the said reservation can not be said to have lapsed nor 7 W.P. No. 4698/1997 - ( J ) the petitioner would get any right to develop the said property few dates would be relevant. Notice U/s 127 of the M.R.T.P. Act was served upon respondent no. 3 on 30/7/1996. The period of 6 months as prescribed U/s 127 of the M.R.T.P. Act came to an end on 29/1/1997. The petitioner applied to respondent no. 3 for the development of the said property on 7/4/1998. The respondent – Municipal Council had published the revised draft eevelopment plan on 18/6/1998 i.e. after the petitioner had applied to the respondent for development of the said property. 11. The Apex Court in the case of Bhavnagar University referred supra while dealing with the provisions of Section 20 and 21 of the Gujrat Town Planning and Urban Development Act, which are pari materia to Sections 38 and 127 of the M.R.T.P. Act, has held thus, : “ The contention of the respondents before the High Court was that on a plain reading of the provisions of Section 20 of the said Act, it would appear that the appellants were under a statutory obligation to take steps for acquisition of land on recepot of the requisite notice in terms of sub-section (2) of Section 20 of the Act and on their failure to do so the reservation/designation in respect of land in question would lapse ”. 8 W.P. No. 4698/1997 - ( J ) So also, the Division Bench of this Court in the case of Kishor Bapat referred supra has held that, “ We have given our though to the various contentions canvassed by the learned respective Counsel for the parties and also perused relevant provisions of the MRTP Act as well as judgment of this Court relied on by the learned Counsel for the petitioners. In the instant case, it is not in dispute that this Court vide judgment dated 21/9/1999 passed in Writ Petition No. 3763 of 1998 has finally held thus : “ In these circumstances, we hold and declare that the regional reservation on the petitioner’ land which applied on account of the 1978 Development Plan has lapsed, but we decline to grant any other relief to the petitioners in view of the subsequent development. Rule accordingly partly made absolute. No order as to costs ”. The same view is also taken by the Division Bench of this Court in the case of Baburao Dhondiba Salokhe referred supra. 12. The Judgment relied by the learned counsel for the 9 W.P. No. 4698/1997 - ( J ) respondent in the case of Ranjan Manubhai Doctor referred supra is not of much assistance to the respondent. The facts in the said case were altogether different. In the said case, the owner had not applied for development after the deemed reservation and in the mean time a draft revised plan is notified. The notice U/s 127 of the M.R.T.P. Act was served on the Planning authority when the draft revised development plan was already published and in the draft revised plan, the reservation had been continued. As such, in the said case, the rights in favour of the owner of the land were not crystallized nor before the publication of the draft revised development plan the land stood de-reserved. 13. Section 127 of the M.R.T.P. Act is a fetter upon the power of eminent domain. The Statute has to be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole Statute. A head on clash between 2 Sections of the same Act are to be avoided and whenever it is possible to do so, the provisions should be construed harmoniously. It can not be lightly assumed that what has been given by the Parliament with one hand, it took away with the other. The provisions of one Section of a Statute can not be used to defeat another. A interpretation that renders one of the provisions to a useless lumber or to a later, would not be a harmonious consideration. Sections 38 and 127 of the M.R.T.P. Act will have to be read conjointly and harmoniously. 10 W.P. No. 4698/1997 - ( J ) 14. In our case, after the land stood de-reserved by fiction of law, the petitioner had taken further steps i.e. applied for development and 2 months thereafter the draft revised development plan is published. As such, the right which had accrued to the petitioner by way of a beneficial provision legislation in the form of Section 127 of the M.R.T.P. Act, could not have been taken away by resorting to Section 38. If the same is permitted, then it would render Section 127 of the M.R.T.P. Act superfluous and otise. No such interpretation can be permitted, which would renders a provision in the Statute otise. 15. In light of the above, the Writ Petition succeeds. Rule is made absolute in terms of prayer clauses ‘ A ’ and ‘ B ’. However, there shall be no order as to costs. 16. In view of disposal of Writ Petition, Civil Application No. 129 of 2000 does not survives and as such disposed of. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 4698.97