1 W.P.No.6283 of 2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. WRIT PETITION NO.6283 OF 2009 Shaikh Naim Shaikh Lal, Age : 35 years, Occu. Business, R/o Paltan, Hingoli, Tq & Dist : Hingoli ..PETITIONER VERSUS 1. State of Maharashtra, Through Secretary Urban Development department, Mantralaya, Mumbai 2. The Deputy Director, Town Planning Aurangabad Region, Aurangabad 3. The Collector, Hingoli 4. The Assistant Director, Town Planning, Hingoli 5. The Chief Officer, Municipal Council, Hingoli ..RESPONDENTS Mr P.S. Agrawal, Advocate for the petitioner; Mr P.P. More, Asstt. Govt. Pleader for respondents no.1 to 4; Mr Vivek Bhavthankar, Advocate for respondent no.5 2 W.P.No.6283 of 2009 CORAM : SMT. NISHITA MHATRE AND S.S. SHINDE, JJ. DATE : 23rd March, 2011 ORAL JUDGMENT (PER SMT. MHATRE, J.) The present petition has been filed for direction to be issued to the respondents to de-reserve the land bearing survey no.3/3, ad measuring 40 Are, situated at Ganeshwadi, Hingoli, Taluka and District Hingoli which is owned by the petitioner. This plot was reserved for a Primary Health Centre at reservation no.57 in the development plan which was finalised on 1st July, 1994. 2. Although the development plan was finalised as mentioned earlier on 1st July, 1994, the respondents took no steps to acquire the property of the petitioner. He, therefore, applied to the authorities to convert the aforesaid land to non-agricultural use by an application dated 11th July, 2006. It appears that there was no response from the respondents. Thereafter on 17th July, 2008 the petitioner issued a notice requesting the respondents to take steps to acquire the aforesaid land or in the alternative to de-reserve the plot. On 2nd April, 2008 respondent no.4 i.e. the Assistant Director, Town Planning, called upon the petitioner to explain under what provision of law the notice of 17th July, 2008 had been issued by the petitioner. It appears that the Director, Town 3 W.P.No.6283 of 2009 Planning, Pune called upon the respondents to submit a report in order to ascertain whether steps should be taken as requested by the petitioner in his letter dated 17th March, 2008 which, in fact, was a purchase notice. The respondent no.4 informed respondent no.1 that the land was required for the Primary Health Centre and was reserved as such in the development plan. A letter was issued by respondent no.5 i.e. the Chief Officer, Municipal Council, Hingoli to respondent no.4 requesting him to take steps to acquire the land bearing survey no.3/3 in accordance with the law. A resolution was passed by the Municipal Council on 13th August, 2008 for acquisition of the land in accordance with the development plan. The proposal for acquisition of the land was sent to the Special Land Acquisition Officer in the office of respondent no.3 i.e. the Collector, Hingoli. 3. On the basis of the report submitted by respondents no.4 & 5, the Director, Town Planning, submitted a report to respondent no.1 on 10th February, 2009 indicating that the land ought to be acquired in accordance with law. Respondent no.1, therefore, intimated the petitioner on 13th February, 2009 that steps had been initiated to acquire the land. 4. On 18th February, 2009 the petitioner once again issued a notice to the Chief Officer, Municipal Council, Hingoli seeking permission to convert the user of the land to non-agricultural use. The petitioner had also referred to his earlier notice dated 17th March, 2008 in which he had 4 W.P.No.6283 of 2009 requested the Municipal Council to acquire the land. The petitioner pointed out that since no steps had been taken by the Municipal Council to acquire the same, he ought to be permitted to convert the user of the land. Respondent no.5 issued a letter to respondent no.3 on 9th March, 2009 informing him that the market price of the land was Rs.12,24,000/- and as per the resolution no.343 passed by the Municipal Council, the proposal for acquisition of the land had been forwarded to the Special Land Acquisition Officer. The Assistant Director, Town Planning - respondent no.4 herein informed the petitioner on 16th March, 2009 that a proposal had been forwarded to the Special Land Acquisition Officer on 27th August, 2008 for acquisition of the land and, therefore, it could not be de-reserved. 5. The main contention of the petitioner is that although the development plan had been finalised on 1st July, 1994 in which his land had been reserved for a Primary Health Centre, no steps had been taken by the respondents to acquire the land and, therefore, the reservation itself had lapsed in view of the provisions of the Maharashtra Regional and Town Planning Act, 1966. According to the petitioner, a purchase notice had been issued by him on 17th March, 2008 and then again on 18th February, 2009. Even after these letters were issued by him, the respondents had taken no steps to acquire the land as required and, therefore, the reservation had lapsed in accordance with section 127 of 5 W.P.No.6283 of 2009 the Maharashtra Regional and Town Planning Act, 1966. 6. A reply has been filed on behalf of the respondents no.1, 2 & 4 by the Assistant Director, Town Planning i.e. respondent no.4 herein. The principle contention raised in the reply appears to be that the notice issued by the petitioner on 17th March, 2008 cannot be characterized as a purchase notice in terms of the provisions of the Maharashtra Regional and Town Planning Act, 1966. The affiant has further stated that although the Municipal Council was informed that two thirds of the market price should be deposited by it with the State before acquisition proceedings could be initiated, the Municipal Council had not taken any steps to do so. Respondent no.3 has also filed an affidavit reiterating what has been stated in the affidavit filed by respondent no.4. He has further stated that Hingoli Municipal Council had failed to deposit 2/3rd of the amount of the estimated cost of the land which was demanded by the Collector vide his communication dated 2nd July, 2009 issued to the Municipal Council. 7. The Municipal Council has also filed an affidavit through its Chief Officer - respondent no.5 herein. The contentions that he has raised in the affidavit are, inter alia, that the land was required for a Primary Health Centre; that the Council had forwarded a proposal for acquisition of the land of the petitioner to the Land Acquisition Officer on 29th July, 2008 and 7th August, 2008 and that the valuation report was also obtained 6 W.P.No.6283 of 2009 from respondent no.4 on 1st July, 2008 in which the land was valued at Rs.12,24,000/-. He has also stated that a resolution had been passed by the Council for depositing the aforesaid amount with respondent no.3. In these circumstances, according to respondent No.5, the reservation could not be said to have lapsed as effective steps had been taken by the Council for acquisition of the land. 8. The provisions of section 126 make it abundantly clear that they can be invoked by the planning authority in case of acquisition of any land which is required for a public purpose mentioned in the final development plan. A perusal of section 126 indicates the different steps to be undertaken by the authorities in disparate eventualities. When a proposal is submitted by the acquiring body to the State Government, the State Government has to acquire the land in accordance with the provisions of the Land Acquisition Act so far as they are applicable to the acquisitions under section 126 of the Maharashtra Regional and Town Planning Act, 1966. The steps to be taken for acquisition of the land include the publication of a declaration under section 6 of the Land Acquisition Act. The market value of the land is to be determined on the date of publication of the notification under section 6 of the Land Acquisition Act. 9. When the authorities do not acquire the lands which have been reserved under the final development plan, section 127 of the Maharashtra Regional and Town Planning Act comes into play. It reads 7 W.P.No.6283 of 2009 thus :- "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 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." 8 W.P.No.6283 of 2009 Thus, acquisition of the land which has been reserved, allotted or designated under the final development plan must be completed within ten years from the date on which the development plan comes into force. When the authorities fail to acquire the land within ten years, the owner of the land is entitled to give a notice to the acquiring body, which is known as the purchase notice, to either release the land from the reservation or to acquire the same. If within six months of such notice being issued to the authorities concerned, the land is not acquired or no “steps are commenced” for acquisition of the land, the reservation of the land is deemed to have lapsed and the owner is entitled to use the land for development in accordance with law. 10. According to the respondents, in the present case steps have been taken to acquire the land and, therefore, the reservation has not lapsed. The Municipal Council contends that it has sent a proposal to the Collector for acquiring the petitioner's land which is a step towards acquisition of the land. It is contended on behalf of the Municipal Council that this was sufficient compliance of section 127 and, therefore, the land cannot be deemed to have been reserved. The State has contended that after receiving the application for acquisition from the Municipal Council, the State has informed the Municipal Council to deposit two thirds of the market value of the plot being Rs.12,24,000/- in order to complete the acquisition. According to the State, therefore, there is sufficient 9 W.P.No.6283 of 2009 compliance of section 127 and the purchase notice cannot come into effect. 11. What would constitute appropriate "steps to be commenced” by the authorities concerned under section 127 of the Maharashtra Regional and Town Planning Act is no longer res integra. In the case of Girnar Traders vs. State of Mah. & ors, (2007) 7 SCC 555, the Supreme Court has considered this issue. Naolekar, J. speaking for the majority has opined that the underlying principle envisaged in section 127 was the utilization of the land for the purpose it was reserved or to allow the owner to utilize the land for permissible uses. It has further been held that when the mandate is stipulated in a section requiring compliance within a particular period, it must be strictly construed. It has been held that the acquisition cannot be left for time immemorial in the hands of the authority concerned although the State is vested with a power to take control of the property of the owner for the public at large; it was obliged to compensate the injured person. The Apex Court has held that compensation provided to the owner is the release of the land which was kept under reservation for ten years without taking steps for acquisition of the same. It has further been held that the commencement of the six months period as envisaged under section 127 occurs from the date the owner of the land serves a purchase notice to the authorities expressing his intent for claiming de-reservation of the land. The Court has further held that steps taken for acquisition of the land by the authorities under 10 W.P.No.6283 of 2009 section 126 (1) (c) have to culminate in a declaration being issued under section 6 of the Land Acquisition Act. If no declaration is made within the time prescribed, then it cannot be said that the authorities have taken steps "to acquire the land" since the acquisition of the land commences with the publication of the declaration under section 6 of the Land Acquisition Act. It is only when such a declaration is issued, can it be said that steps for acquisition have been commenced. In the majority judgement it has been held : "59. There is another aspect of the matter. If we read Section 126 of the MRTP Act and the words used therein are given the verbatim meaning, then the steps commenced for acquisition of the land would not include making of an application under Section 126 (1) (c) or the declaration which is to be made by the State Government under sub-section (2) of Section 126 of the MRTP Act. 60. On a conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the authorities under Clause (c) of Section 126 (1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to sub-section (2) of Section 126. If no such declaration is made 11 W.P.No.6283 of 2009 within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or other authority. 61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under Clause (c) of Section 126 (1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126 (2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126 (1)(c); and (ii) declaration by the State Government on receipt of the application mentioned in Clause (c) of Section 126 (1) on satisfaction of the conditions specified under Section 126 (2). The only exception to this provision has been given under Section 126 (4). 62. In the present case, the amended regional plan was published in the year 1991. Thereafter, the steps by making an application under Clause (c) of sub-section (1) of Section 126 for issuance of the declaration of acquisition and the declaration itself had to be made within the period of one year from the date of the publication of regional plan, that is, within the period of one year from 1991. The application under Section 126 (1) (c) could be said to be a 12 W.P.No.6283 of 2009 step taken for acquisition of the land if such application is moved within the period of one year from the date of publication of regional plan. The application moved after the expiry of one year could not result in the publication of declaration in the manner provided under Section 6 of the LA Act, under sub-section (2) of Section 126 of the MRTP Act, there being a prohibition under the proviso to issue such declaration after one year. Therefore, by no stretch of imagination, could the step taken by the Municipal Corporation under Section 126 (1)(c) of making an application be said to be a step for the commencement of acquisition of the land. After the expiry of one year, it is left to the Government concerned under sub-section (4) of Section 126 to issue declaration under Section 6 of the LA Act for the purposes of acquisition for which no application is required under Section 126 (1)(c). Sub-section (4) of Section 126 of the MRTP Act would come into operation if the State Government is of the view that the land is required to be acquired for any public purpose. 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 LA 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 be steps taken of moving an application before the State Government for acquiring the land under the LA Act. The High Court has committed an apparent error in relying on these two documents for reaching the 13 W.P.No.6283 of 2009 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. Bearing these principles in mind, it would be necessary to consider the facts in the present case. The final development plan was published on 1st July, 1994. The respondents took no steps for acquisition of the land which was reserved for a Primary Health Centre for over 14 years. The petitioner issued a purchase notice on 17th March, 2008 and it was only thereafter that the Municipal Council passed a resolution for acquiring the land. That resolution was passed on 13th August, 2008. The Municipal Council then forwarded the proposal to the office of the respondent no.3 for the Special Land Acquisition Officer on 7th August, 2008. On the basis of the report submitted, the Council was informed by respondent no.3 that it was necessary for the Council to deposit two thirds of the market price of the land with the Special Land Acquisition Officer before the acquisition proceedings could commence. In our opinion, therefore, by no stretch of imagination can it be said that the acquisition proceedings in the present case had commenced within six months of the purchase notice being served on the authorities. In fact, even after the purchase notice was issued by the petitioner, besides corresponding with each other, the Municipal Council and the Special Land Acquisition Officer or respondent no.3 herein have not taken any concrete steps to acquire the land. There is no declaration issued under 14 W.P.No.6283 of 2009 section 6 of the Land Acquisition Act and, therefore, in view of the judgement in Girnar Traders, it cannot be said that "steps had been commenced” by the respondents to acquire the land which was reserved for Primary Health Centre. In our opinion, the reservation has lapsed in view of the deeming fiction contained in section 127 of the Maharashtra Regional and Town Planning Act. 13. The only issue which now remains for us to consider is whether the purchase notice which has been issued by the petitioner is in accordance with law. The learned A.G.P. has argued that this notice, which is dated 17th March, 2008, has not been issued to the planning authority but to the Chief Officer of the Municipal Council, Hingoli. He submits that the purchase notice envisaged under section 127 has to be issued to the planning authority or development authority. The Chief Officer of the Municipal Council is not such authority, according to the learned Asstt. Government Pleader and, therefore, the notice itself is defective. It must be noted here that another notice was issued on 18th February, 2009 by the petitioner to the Chief Officer of the Municipal Council, Hingoli reiterating what was said in the earlier notice and requesting that his land be de-reserved. 14. Section 127 contemplates a notice being issued by the owner or any person interested in a land which is reserved to the planning authority, development authority, or as the case may be, the appropriate 15 W.P.No.6283 of 2009 authority, of his intention to have the land de-reserved if there was a failure to complete the acquisition within six months of the notice. This is the purchase notice. It is true that the Chief Officer, Hingoli, to whom the purchase notice has been addressed, cannot be termed as either the planning authority or the development authority. The "appropriate authority" has been defined under section 2 (3) of the Act . Appropriate authority means any public authority on whose behalf land is designated for a public purpose in any plan or scheme and which it is authorised to acquire. The Chief Officer of the Municipal Council will, therefore, certainly be "appropriate authority". The land was to be acquired for the purposes of the Municipal Council as it was reserved for a Primary Health Centre to be run by the Municipal Council. In these circumstances, the argument of the learned Asstt. Government Pleader that the purchase notice has not been issued to the proper authority, is without merit. 15. In our opinion, therefore, the judgement of the Supreme Court in Girnar Traders squarely covers the issue involved in the present petition. The respondents have not taken any steps to acquire the land owned by the petitioner within six months of the purchase notice being served on them. Thus, the reservation is deemed to have lapsed in view of the provisions of section 127 of the Maharashtra Regional and Town Planning Act. 16 W.P.No.6283 of 2009 16. Accordingly, therefore, the petition is allowed. Rule made absolute in terms of prayer (C). (S.S. SHINDE, J.) ( SMT. NISHITA MHATRE, J.) amj/urgent