:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7846 OF 2004 M/s.C.V.Shah and A.V.Bhat, Age 55 years, Now known as M/s.Shah Promoters and Developers through its Partner Shri Sanjay Chandrakant Shah, having office at AST-1, Success Chambers, 1232, Apte Road Corner, Deccan Gymkhana, Pune-411004. .. Petitioner v/s. 1. The State of Maharashtra through its Secretary to the Ministry of Urban Development Department, having office at Mantralaya, Mumbai 400 032. 2. The Director of Town Planning, Maharashtra State, Pune. 3. The S.L.A.O. No.15, Tilak Road, Pune 411 030. 4. The Municipal Corporation of City of Pune, through its Commissiioner having office at P.M.C.Bldg. Shivaji Nagar, Pune. 5. Poona Timber Small Scale Industrial Association, through its Secretary. 6. The Poona Timber Merchants and Saw Mill Owners Association, through its Secretary. 7. The Poona Timber Small Scale .. Respondents Industries Association, through its Secretary. Respondent Nos.5 to 7 having their office at 5/A, New Timber Market, Bhavani Peth, Pune-411 042. (Copy for Respondent Nos.1 to 3 :2: to be served on A.G.P. Writ Cell, High Court (AS), Bombay) Mr.Y.S.Jahagirdar, Senior Counsel i/by Mr.G.S.Godbole for the petitioners. Mr.S.R.Nargolkar, Assistant Government Pleader for the respondent Nos.1 to 3. Mr.R.G.Ketkar for the respondent Nos.4 and 6. ALONGWITH WRIT PETITION NO.9644 OF 2004 1. Tajuddin Mohhammadbhai Somaji, aged about 60 years, Indian Inhabitant, residing at 1, Nelor Road, Pune 411 001. 2. Suyog Development Corporation, Unit of Suyog Chambers, 335, Shukrawar Peth, Bapu Gokhale Road, Pune 411 002. .. Petitioners v/s. 1. The State of Maharashtra, Mantralaya, Mumbai-400 032, to be served to the office of the Additional Government Pleader, High Court (A.S.), Mumbai. 2. The Pune Municipal Corporation, Pune, through its Municipal Commissioner, Pune. 3. The Assistant Engineer (Development Plan), Pune Municipal Corporation, Pune. 4. The Collector of Pune, District Pune. 5. The Director of Town Planning, :3: Maharashtra State, Pune, Through the Secretary, Urban Development Department and Public Works Department, Mantralaya, Mumbai. 6. The President, The Pune Timber Small Scale Industries Association, 5/A, New Timber Market, Pune. 7. The President, The Pune Timber Merchants and Saw Mill Owners Association, 5/A, New Timber Market, Pune. .. Respondents Mr.K.K.Singhvi, Senior Counsel i/by Mr.P.B.Shah for the petitioners. Mr.S.R.Nargolkar, Assistant Government Pleader for the respondent Nos.1,4 and 5. Mr.A.V.Anturkar i/by Mr.S.B.Deshmukh for the respondent Nos.6 and 7. Mr.R.G.Ketkar for the resopndent Nos.2 and 3. ALONGWITH WRIT PETITION NO.5077 OF 2004 Pune Timber Merchant and Saw Mill Owners Association, 5/A New Timber Market, Registration No.MPC 31/1963, Pune-411 042. .. Petitioner v/s. 1. The State of Maharashtra (Summons to be served on the Learned Additional Government Pleader appearing for the State of Maharashtra under Order XXVII, Rule 4 of the Code of Civil Procedure, 1908) :4: 2. The Secretary, Urban Development Department, Government of Maharashtra, Mantralaya, Mumbai-400 032. (Summons to be served on the learned Additional Government Pleader appearing for the State of Maharashtra under Order XXVII, Rule 4 of the Code of Civil Procedure, 1908). 3. Pune Municipal Corporation, Shivajinagar, Pune-411 005. (summons to be served on the Municipal Conmmissioner, Pune Municipal Corporation, Shivajinagar, Pune-411 005.) .. Respondents 4. M/s.C.V.Shah and A.V.Bhat, Shri Rajesh Chandrakant Shah, office at AST-1, Success Chambers, 1232, Apte Road Corner, Deccan Gymkhana, Pune-411004. 1. Tajuddin Mohhammadbhai Somaji, Through P.A.Shri Bharat K.Shah, R/o.T-400, Adinath Society, Pune-Satara Road, Pune-411 007. 2. Jayanat Hiralal Shah, ..Respondents Partner, Suyog Development (Intervenors) Corporation, Unit No.10, 335, Shukrawarpath, Pune-411 002. (Added as per order dated 17.1.05 passed in C.A. No.2796/2004 and C.A. No.2797/2004.) Mr.A.V.Anturkar i/by Mr.S.B.Deshmukh for the petitioners. Mr.S.R.Nargolkar, Assistant Government Pleader for the respondent Nos.1 and 2. Mr.R.G.Ketkar for the respondent No.3. Mr.Y.S.Jahagirdar, senior counsel i/by Mr.G.S.Godbole for the respondent Nos.4 to 6. :5: CORAM : R.M. LODHA AND R.S. MOHITE, JJ. DATED : 29th April, 2005/ 2nd May, 2005 ORAL JUDGMENT (Per R.M.Lodha, J.) The arguments advanced before us in this batch of three writ petitions have crystalised two issues for our determination. These issues are: (i) Whether the designation of the land bearing survey Nos.577 Hissa No.1, 577 Hissa No.2, 577 Hissa No.3 and 578 Hissa No.1 (part) in the revised development of Pune City for the ‘timber industry’ is for the public purpose. (ii) Whether the designation of the aforesaid land for the ‘timber industry’ in the revised development plan of Pune City notified on 5.1.1987 has lapsed under section 127 of the Maharashtra Regional Town Planning Act, 1966 (for short, ‘the MRTP Act, 1966’) for want of any steps for acquisition of the said land within six months of the service of the purchase notice. 2. Bereft of unnecessary details, the aforesaid two issues arise in the facts and circumstances which we briefly state hereunder. :6: WRIT PETITION NO.7846 OF 2004 3. The petitioners in this writ petition claim to be the owners of the land comprising of survey No.577 Hissa No.1 and 578 Hissa No.1 (part), situate at village Munjeri, Taluka Haveli, District Pune. On 5.1.1987, the Government of Maharashtra published the revised development plan of Pune City under the provisions of the MRTP Act, 1966. The said plan provided for various reservations and designations. In the schedule of the development plan, these petitioners’ land was shown in the zone designated for "Timber Industries". The Pune Municipal Corporation was shown as the Acquiring Authority. The total land shown in the zone designated for "Timber Industries" admeasures 21 Hectares comprising of survey Nos.577 (that includes 577 Hissa No.1, 577 Hissa No.2, 577 Hissa No.3), 578 Hissa No.1 (part), 579 (part) and 580 (part) situate at village Munjeri, Taluka Haveli, District Pune. Note 15 (wrongly shown as note 25) provides: "Steel Yard/Timber Industries Reservation to be converted into zoning for very purpose. Pune Municipal Corporation to acquire land if the Association of Steel and Scrap Merchants/Timber Merchants come forward for payment of acquisition costs." It :7: appears that the correspondence ensued between the authorities of the Pune Municipal Corporation and the Pune Merchant and Saw Mill Owners Association, the Pune Timber Small Scale Industries Association and the Pune Timber Small Scale Industries Co-operative Industrial Estate Limited from time to time regarding the mode of the acquisition of the designated land, the cost thereof and the amount to be deposited by these associations. It also appears that in the year 1988 a development agreement and thereafter a supplementary agreement were entered into between the present petitioners and the members of Pune Timber Industrial Association for development of the land owned by the petitioners admeasuring about 11 Hectares. As per the agreement, the present petitioners were to develop the land and sell the developed plots to the individual members of the Pune Timber Industrial Association at the rate fixed in the agreement. According to the petitioners, all these agreements were cancelled later on. On 15.11.2000, the petitioners through their advocate served a purchase notice under section 127 of the MRTP Act, 1966 on the Pune Municipal Corporation and its Commissioner in respect of their land comprising of survey Nos.577 Hissa No.1 and 578 Hissa No.1 (part), in all admeasuring about 74000 sq.mts. calling upon them :8: to acquire the land under the provisions of the Land Acquisition Act, 1894. The said purchase notice was replied by the Assistant Engineer, Land and Estates Department, Pune Municipal Corporation on 4.1.2001 and the petitioners were intimated that their purchase notice dated 15.11.2000 was rejected since the process of acquisition of the subject land was already in progress. The correspondence that ensued between the petitioners and the authorities of the Pune Municipal Corporation thereafter does not need reference in view of the limited controversy raised before us. The meetings between the petitioners, the authorities of Pune Municipal Corporation and the Timber Merchants Association were also held. There existed serious dispute about the cost of the land that was to be paid by the Timber Merchants Association for acquisition of the land designated for timber industries. Ultimately the State Government through Minister for Urban Development Department issued direction under section 37(1) of the MRTP Act, 1966 to the Pune Municipal Corporation on 6.2.2004 for commencing the process of deletion of the designated land admeasuring 21 hectares from the zoning of timber market and for notification of the said land in the residential zone. On 29.3.2004, the City Improvements Committee of Pune Municipal Corporation passed the resolution No.749 :9: in the light of the directions issued by the State Government under section 37(1) of the MRTP Act, 1966 and it was resolved that the proposal for deletion should be forwarded to the General Body and the Commissioner should forward the proposal of cancellation of acquisition before the Standing Committee. The General Body of Pune Municipal Corporation passed a resolution No.33 unanimously on 20.5.2004 resolving that the Commissioner should submit the proposal to the Standing Committee for cancellation of the acquisition proceedings and for initiation of necessary procedure for deletion of the zoning/reservation of the timber market by recourse to the provisions of Section 37 of the MRTP Act, 1966. Then for the reasons best known, the State Government on 19.6.1994 by way of temporary measure stayed its earlier directions issued to the Pune Municipal Corporation on 6.2.2004. This necessitated the filing of the present writ petition. WRIT PETITION NO.9644 OF 2004 4. The petitioners in this writ petition are owners of survey No.577 Hissa No.2 and Hissa No.3, situate at village Munjeri, Taluka Haveli, District Pune. This land too as noticed above is designated for :10: timber industry in the revised development plan of Pune City published on 5.1.1987. The petitioners’ case is that on 14.6.2001, they served the purchase notice under section 127 of the MRTP Act, 1966 upon the Commissioner, Pune Municipal Corporation, Pune requesting the Planning Authority to acquire their aforesaid land but no steps were taken for the acquisition of their land within six months of the receipt of the said notice and, therefore, the designation of their land in the revised development plan of Pune City for ‘timber industry’ has lapsed. The other broad facts have already been noticed by us in the writ petition No.7846 of 2004. 5. In response to these two writ petitions 7846 of 2004 and 9644 of 2004, the Pune Municipal Corporation has filed separate reply affidavits. As a matter of fact in the reply to writ petition 9644 of 2004, the reply affidavit of writ petition 7846 of 2004 has been relied upon. The substance of the reply is that the Planning Authority had taken requisite steps as contemplated under section 127 of MRTP Act, 1966 even before the service of purchase notice i.e., the Pune Municipal Corporation had submitted the requisite proposal for acquisition on 31.5.1989 much before the receipt of purchase notice in both these matters. :11: Issue No.(i) 6. Section 22 of the MRTP Act, 1966 provides for contents of development plan. It reads thus- "S.22. "S.22. "S.22. Contents of Development plan.- Contents of Development plan.- Contents of Development plan.- A Development plan shall generally indicate the manner in which the use of land in the area of a Planning Authority shall be regulated, and also indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say, (a) proposals for allocating the use of land for purposes, such as residential, industrial, commercial, agricultural, recreational; (b) proposals for designation of land for public purpose, such as schools colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, or public assembly, museums, art galleries, religious building and government and other public buildings as may from time to time be approved by the State Government. (c) proposals for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature, reserves, sanctuaries and dairies; (d) transport and communications, such as roads, high-ways, park-ways, railways, water-ways, canals and airports, including their extension and development; (e) water supply, drainage, sewerage, sewage disposal, other public utilities, amenities and services including electricity and gas; :12: (f) reservation of land for community facilities and services; (g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale; (h) preservation, conservation and development of areas of natural scenary and landscape; (i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value [and of heritage buildings and heritage precincts]; (j) proposals for flood control and prevention of river pollution; (k) proposals of the Central Government, a State Government, Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to requisition for public purpose or as specified in a Development plan, having regard to the provisions of section 14 or for development or for securing use of the land in the manner provided by or under this Act; (l) the filling up or reclamation of law lying, swampy or unhealthy areas or levelling up of land; (m) provisions for permission to be granted for controlling and regulating the use and development of land within the jurisdiction of a local authority including imposition of conditions and restrictions in regard to the open space to be maintained about buildings, the percentage of building area for a plot, the location, number, size, height, number of storeys and character of buildings and destiny of population allowed in a specified area, the use and purpose to which buildings or specified areas of land may or may not be appropriated, the sub-division of plots the discontinuance of objectionable users of land in any area in reasonable periods, parking space and loading and unloading space for any building and the :13: size of projections and advertisement signs and boardings and other matters as may be considered necessary for carrying out the objects of this Act." 7. Clause (b) of section 22 refers to the provision of development of land for public purpose, interalia, ‘markets’. In the development plan, the designation of the 21 Hectares of land including the subject land situated at village Munjeri is for ‘Timber Industries’. The expression ‘Timber Industries’ seems to have been loosely used for the Timber Market. This becomes apparent from the fact that it is not part of Industrial Zone and it also clarifies that Timber Market at Bhavani Peth shall continue as Timber Market. Thus the designation of subject land for Timber Industry or in other words Timber Market is not excluded from clause (b) of section 22. Clause (b) of section 22 does not contemplate reservation only for Government markets or the markets of local authority as a public purpose. The designation of land for markets whether of the Government, local authority or private association of persons is covered by clause (b) and would be a public purpose. 8. Moreover, section 22(g) provides for proposals for designation of sites for service industries, :14: industrial estates and any other development on an extensive scale. The expression "any other development on an extensive scale" occurring in section 22(g) is of wide import and would take into fold the development of site such as for the purposes of timber industry. The development of 21 hectares of land for the timber industry is surely the development on an extensive scale. Merely because the cost of acquisition is to be borne by the Association of Timber Merchants, the purpose of development of the land for the timber industry shall not cease to be the public purpose. In this view of the matter, we are unable to agree with the contention of the learned senior counsel for the petitioners that the designation of the subject land in the revised development plan notified on 5.1.1987 is not for the public purpose. Pertinently under section 125 of the MRTP Act, 1966, any land required, reserved or designated in a development plan for a public purpose or purposes including plans for any area of comprehensive development is deemed to be land needed for a public purpose within meaning of the Land Acquisition Act, 1894. 9. Besides that, it is too late in the day for the petitioners to challenge the designation of the :15: subject land in the development plan for public purpose. The MRTP Act, 1966 provides for the detailed procedure to be followed from the date of the declaration of intention to prepare the development plan until publication of final development plan. At no stage, the petitioners raised the objection to the draft development plan and even thereafter no objections were raised by the petitioners within the reasonable time after the revised development plan was notified on 5.1.1987. In the writ petition filed in the year 2004, more than seventeen years after the publication of revised development plan, the grievance raised by the petitioners that the subject land designated for timber industry is not for public purpose does not deserve to be accepted even on the ground of the laches and unexplained delay. 10. The first issue, thus, is held against the petitioners. Issue No.(ii) 11. The crucial question, now, is whether the designation contemplated on the subject lands for timber industry has lapsed under section 127 of the :16: MRTP Act, 1966 for want of steps within six months from the date of the service of purchase notice under section 127. For considering these aspects, it will be proper to refer to the notice served by the petitioners in both the writ petitions separately. 12. In writ petition No.7846 of 2004 concerned, the following notice under section 127 of the MRTP Act, 1966 was served upon the Pune Municipal Corporation/Commissioner, Pune Municipal Corporation. "Dated the November 15, 2000 To, The Commissioner, Pune Municipal Corporation, Mahapalika Bhawan, Pune-411 005. Pune Municipal Corporation (A body Corporate established under Bombay Provincial Municipal Corporation Act, having its office at Mahapalika Bhawan, Pune-411 005. SUB: NOTICE UNDER SECTION 127 UNDER THE MAHARASHTRA REGIONAL TOWN PLANNING ACT. Sir, 1. That the below mentioned property bearing survey No.578/1 (part) & 577/1 is situated at Munjeri Bibwewadi within the Pune Municipal Corporation area. bearing i :17: 2. My clients M/s.C.V.SHAH AND A.V.BHAT. 1232 Success Chambers Apte Road Corner Deccan Gymkhana, Pune-411 004 are the owner and vahivatdar of abovesaid property. On behalf of my client I am issuing this notice to you. 3. As per the development plan an area admeasuring 60309 sq.mtrs. out of s.no.5701 & 13900 sq.mtres. of s.no.577/1 is reserved for Timber Industries. 4. That my clients have protected the said area at their own cost by fencing it and provided proper Gate for the same. 5. My clients say that my client has no objection to hand over the said lands to you for the said purpose under LAND ACQUISITION ACT and are ready to accept the compensation as per prevailing Govt.Recknor rate. 6. My clients says that this may be treated as notice under section 127 of M.R.T.P.Act to acquire the said property for the respective purpose and if the Planning Authority fails to acquire the land necessary recourse under the M.R.T.P. Act will automatically follow which please kindly note which may include the deletion of the said reservation and for which the Plannng Authority i.e. all of you will be responsible and liable. This is for your information and for the necessary action as provided under the law." 13. In writ petition No.9644 of 2004, the purchase notice is in Marathi and is dated 14.6.2001. The English Translation of this notice has been placed on record. The subject of the notice is for acquisition of the property bearing survey Nos.577/2 and 577/3 situate at Munjeri, designated :18: for timber industries. By means of this notice, the petitioners gave the proposal for acquisition of their land as referred to above. In the notice, it is stated that the purchase rate per square feet of the said land will be Rs.350/- and that the amount shall be paid by the Corporation within six months from the date of acceptance of the proposal and if it is not done, the interest of 24% per annum shall be charged. The land is as is where is basis. The notice also mentions that the proposal for acquisition is given by the petitioners without prejudice to their rights if the rates contained in the proposal are not found acceptable and if the transaction is not completed and the land is required to be acquired under the Land Acquisition Act then the proposal will be without prejudice to their legal rights. The notice also records that consent for acquisition of their land is being given at the instance of the Corporation. In the alternative, it is recorded that if the acquisition of the property is under the Land Acquisition Act, the proposal is without prejudice to their rights to claim the compensation at more rate than provided in the award. 14. The stand of Pune Municipal Corporation in reply affidavits in this regard is that the :19: Planning Authority had taken requisite steps as contemplated in section 127 of MRTP Act, 1966 much before the service of purchase notice. 15. The learned counsel for the respondents submitted that the notice dated 14.6.2001 in writ petition No.9644 of 2004 and the notice dated 15.11.2000 in writ petition No.7846 of 2004 are not legal and valid notice as contemplated in section 127 of the MRTP Act. They placed reliance on the expression "to that effect" occurring in section 127 and contended that the notice under section 127 mandatorily contemplates the specific mention of the aspects viz., (i) that the land is reserved, allotted or designated for the purposes specified in the development plan (ii) that such land has not been acquired by agreement within 10 years from the date on which the final regional plan or final development plan came into force and (iii) that the proceedings for the acquisition of such land under the MRTP Act or under the Land Acquisition Act has not commenced within 10 years from the date of coming into force of final regional plan/final development plan. The learned counsel for the respondents would submit that non-mentioning of these facts in the notice under section 127 would render the notice of no legal consequence. It was :20: also argued that in so far as writ petition No.9644 of 2004 is concerned, the notice is addressed to the Commissioner, Pune Municipal Corporation and such notice cannot be said to be notice to the Planning Authority. 16. Section 127 of the MRTP Act reads thus- "S.127. "S.127. "S.127. Lapsing of reservations.- Lapsing of reservations.- 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, (I of 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." 17. The notice contemplated in section 127 is a notice requiring the Planning Authority or the Development Authority or the Appropriate Authority, as the case may be, to acquire the land which is reserved, allotted or designated for public purpose :21: in the final development plan. The notice is given by the