1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD WRIT PETITION NO. 1373 OF 2005 1- Sow. Ranjana w/o Laxmanrao Choudhary, age 48 years, occ. Household & agril., r/o Vidhya Vihar Colony, Chopada, Taluka Chopada,District Jalgaon, 2- Shri Shankar s/o Uttamrao Patil, age 50 years,occ. Agriculture, r/o Vidhya Vihar Colony, Chopada, Taluka Chopada, District Jalgaon, Through General Power of Attorney Holders of Petitioners Shri Laxman Mansaram Patil, r/o Vidya Vihar Colony, Chopada, Tq. Chopada, Dist.Jalgaon. ...Petitioners VERSUS 1- The State of Maharashtra through Secretary, Urban Development Department, Mantralaya, Mumbai (Copy to be served on the Government Pleader,High Court of Judicature of Bombay Bench at Aurangabad) 2- The Director of TownPlanning, M.S., Pune. 3- Deputy Director of TownPlanning, Nasik Division, Nasik, 4- The Municipal Council Chopada, Taluka Chopada, District Jalgaon, through its Chief Officer ...Respondents 2 ..... Shri A.B.Kale, advocate for the petitioners Shri K.J.Ghute Patil, A.G.P. For respondent nos. 1 to 3 Shri P.B.Patil, advocate for respondent no.4 ..... CORAM : S.B.DESHMUKH AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE JUDGMENT : 1.12.2009 DATE OF PRONOUNCING THE JUDGMENT : 5.12.2009 J U D G M E N T : (PER SHRIHARI P.DAVARE, J.) 1 Perused. Heard learned counsel for the respective parties. 2 The petitioners have filed the present Writ Petition under Articles 14, 19, 226 and 227 of the Constitution of India seeking directions to the respondents :- (I) to de-reserve land bearing Gut No. 1629/1 to the extent of 2 acres, situated at Chopda, District Jalgaon from reservation sheet nos. 3 and 4; and also (II)to direct respondent no.1 to delete reservation of the land 3 of the petitioners bearing Gut No. 1629/1, situated at Chopda, District Jalgaon from the planning as per Section 50 of the Maharashtra Regional Town Planning Act, 1966. Factual Matrix 3 The petitioners claim to be the owners and possessors of the land bearing Gut No. 1629/1 to the extent of 2 hectares, situated at Chopda, District Jalgaon. Respondent no.4 – Municipal Council, Chopda is the planning authority within the meaning of Section 2 (19) r/w 2 (15)(b) of the Maharashtra Regional & Town Planning Act, 1966 (hereinafter referred to as, “the Act of 1966”). Respondent no.4 prepared and published a draft development plan on 8.10.1986 and the land of the petitioners to the extent of 2 hectares was reserved for primary school in reservation sheet nos. 3 and 4 and since then the said land of the petitioners is put under reservation. Respondent no.4 modified the said draft development plan under Sections 28 and 29 of the Act of 1966 and same is sanctioned by the Director of Town Planning, Maharashtra State, Pune on 8.10.1986 and same came into force. 4 The final development plan was prepared by respondent no.4 I.e. Planning authority and sanctioned by 4 respondent no.2 I.e. Director of Town Planning, Maharashtra State, Pune and reserved Gut No. 1629/1 to the extent of 2 hectares, situated at Chopda, District Jalgaon for primary school. However, the said land of petitioners was neither developed nor same was acquired by the respondents/authorities within the period of ten years. 5 Hence, after the lapse of ten years, the petitioners issued purchase notice (Exh.'D' page 24) under Section 127 of the Act of 1966 on 25.5.2004 and same was received by respondent no.4 on 31.5.2004. Thereafter the general body meeting of respondent no.4-planning authority was held on 16.6.2004 and resolution no. 39 (Exh. 'E' page 28) was passed therein and taking into consideration all the facts it was decided not to acquire the land of the petitioners. As per the said resolution, the petitioners also submitted the consent terms and thereby relinquished their right on road of 15 square meters and also submitted proposal for non-agricultural user. Accordingly, respondent no.4 had sent the proposal to the Secretary, Urban Development Department, Mantralaya, Mumbai and requested to consider the said proposal and to act as per Section 127 of the Act of 1966. Thereafter the general body meeting of respondent no. 4-planning authority was held on 2.11.2004 and subject of the 5 petitioners land was discussed and as per resolution no. 103 (Exh. 'H' page 35), respondent no.4 decided not to acquire land of the petitioners. Thereafter respondent no.4 wrote a letter to the Collector, Jalgaon on 17.11.2004 and informed about passing of the afore said resolutions I.e. Resolution no. 39 on 16.6.2004 and resolution no. 103 of 2.11.2004. 6 However, the Collector, Jalgaon by letter dated 30.12.2004, sent to respondent no.4, suspended resolution no. 39 on 16.6.2004 and resolution no. 103 of 2.11.2004 under Section 308 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (hereinafter referred to as, “the Act of 1965”), since those were against the public purpose and directed to submit the proposal for said land acquisition, if not forwarded. Hence, the petitioners approached this court by way of present writ petition for the prayers as set out herein above. Submissions :- 7 Learned counsel for the petitioners submitted that respondent no.4 I.e. Planning authority of Chopda had prepared and published draft development plan and modified the same on 8.10.1986 under Sections 28 and 29 of the Act of 1966 and same 6 was sanctioned by the Director of Town Planning, Maharashtra State, Pune and accordingly final development plan was prepared by respondent no.4 and sanctioned by respondent no.2 and thereby land bearing Gut No. 1629/1, situated at Chopda, District Jalgaon to the extent of 2 hectares of the petitioners was reserved for primary school and, therefore, the petitioners could not develop the same. 8 However, it was further canvassed by the learned counsel for the petitioners that although it was incumbent upon respondent no.4 to acquire the said land as per the provisions of the Act of 1966 within the period of ten years from the date of coming into force of the final development plan by entering into agreement or by making application to the State Government or the Director of Town Planning, Maharashtra State, Pune for initiating proceedings for acquisition under Section 126 of the Act of 1966 r/w Section 6 of the Land Acquisition Act, 1894 respondent no.4 failed to take any steps for acquisition of the said land within the said prescribed period. Hence, it was submitted by learned counsel for the petitioners that the petitioners issued purchase notice under Section 127 of the Act of 1966 to respondent no.4 on 25.5.2004, which was received by respondent no. 4 on 31.5.2004. 7 9 According to the learned counsel for the petitioners, after service of said purchase notice (Exh'D' page 24), a general body meeting of respondent no.4-planning authority was held on 16.6.2004 and resolution no. 39 (Exh.'E' page 28) was passed and thereby taking into consideration all the facts it was decided not to acquire the land of the petitioners. According to the learned counsel for the petitioners, in view of the said resolution no.39 (Exh.'E' page 28), the petitioners also submitted consent terms and thereby relinquished their right on the road of 15 square meters and submitted proposal (Exh. 'G' page 33) for non- agricultural user. 10 Learned counsel for the petitioners also submitted that in view of the resolution passed by respondent no.4 on 16.6.2004, the President of respondent no.4 sent a letter to the Secretary, Urban Development Department, Mantralaya, Mumbai on 1.7.2004 (Exh.'F' page 30) and requested to consider the said proposal and to act as per Section 29 of the Act of 1966. Learned counsel for the petitioners further submitted that the petitioners came to know that even thereafter a general body meeting of respondent no.4-planning authority was held on 2.11.2004 and subject of the petitioners land was discussed therein and 8 resolution no. 103 was passed and it was decided not to acquire the land of the petitioners . 11 Thereafter the Chief Officer of respondent no.4 by communication dated 17.11.2004 informed about passing of resolution no.39 dated 16.6.2004 and resolution no. 103 dated 2.11.2004 by respondent no.4 to Collector, Jalgaon and requested to cancel the same. Accordingly, it is submitted by learned counsel for the petitioners that in spite of afore said position and issuance of purchase notice, the Collector vide communication dated 30.12.2004 (page 48) sent to the Chief Officer of Municipal Council, Chopda and the President, Municipal Council, Chopda suspended the said resolution no.39 dated 16.6.2004 and resolution no. 103 dated 2.11.2004 under Section 308 of the Act of 1965 holding that said resolutions were against the public purpose and directed to submit the proposal for acquisition of the said land, if not forwarded. 12 On the same background, it is submitted by the learned counsel for the petitioners that in spite of receipt of said purchase notice under Section 127 of the Act of 1966, respondent no.4 has not acquired the said land or has not taken any steps for acquisition of the said land within the period of six months from 9 the date of such notice and, therefore, said reservation on the petitioners land is deemed to have been lapsed and the said land is deemed to have been deleted from such reservation under Section 127 of the Act of 1966 and the Collector, Jalgaon has passed the order dated 30.12.2004 without considering the said legal position and without considering that whether any public purpose remained or not. 13 Learned Assistant Government Pleader appearing for respondent nos. 1 to 3 vehemently opposed the present writ petition and filed affidavit in reply through Shrikant Rajaram Vyas, working as Assistant Director of Town Planning, Jalgaon and thereby denied the averments and contentions in the present writ petition unless admitted therein specifically. 14 Learned Assistant Government Pleader appearing for respondent nos. 1 to 3 submitted that the Chief Officer, Municipal Council, Chopda submitted land acquisition proposal to the Collector by its letter No. 3045 dated 18.11.2004, a copy of which is annexed to the said affidavit in reply at Exh. 'R-1', which itself shows that steps have been taken by respondent no.4 Municipal Council, Chopda for commencement of the acquisition. Learned Assistant Government Pleader also submitted that the 10 implementation of resolution no. 39 dated 16.6.2004 and resolution no. 103 dated 2.11.2004 by Municipal Council, Chopda was canceled by the Collector, Jalgaon under Section 308 of the Act of 1965 by its order dated 30.12.2004. Learned Assistant Government Pleader also pointed out that the proposal dated 18.11.2004 (Exh. 'R-1') which was submitted by respondent no.4 Municipal Council, Chopda to the Collector, Jalgaon was sent back to the Municipal Council to make certain compliances in the said proposal. 15 Thus, according to the learned Assistant government Pleader the land acquisition proceedings have been initiated within the period of six months from the date of service of purchase notice under Section 127 of the Act of 1966 and steps have been taken by the Municipal Council-respondent no.4 in respect of the acquisition of the said land by submitting proposal to the Collector, Jalgaon. Hence, it is further submitted that the lapse of reservation on the land of the petitioners, as canvassed by the learned counsel for the petitioners, bears no substance and there is no question of de-reservation of the said land. It is further submitted by the learned Assistant government Pleader that there is no question of application of section 50 of the Act of 1966, since in the present case appropriate authority to acquire the land is 11 Municipal Council, Chopda. 16 Respondent no.4 Municipal Council Chopda has also opposed the present petition and Shri Suryakant Digambarrao Pathak, Chief Officer, Municipal Council, Chopda has filed affidavit in reply and thereby denied the averments and contentions of the petitioners in the present petition unless admitted therein specifically. 17 Learned counsel for respondent no.4 also submitted that the proposals of resolution no. 39 on 16.6.2004 and resolution no. 103 of 2.11.2004 which were forwarded to the Deputy Director, Town Planning, were rejected and sent back to the Collector, Jalgaon with direction to send the proposal for acquisition of the land of the petitioners and directions were given to the Chief Officer of respondent no.4 to send the proposal for cancellation of resolution no. 39 on 16.6.2004 and resolution no. 103 of 2.11.2004 to the Collector, Jalgaon as per the provisions of Section 308 of the Act of 1965, copy of the said letter dated 15.10.2004 is produced on record at Exh.'P'. 18 Learned counsel for respondent no.4 further submitted that in view of the said letter, respondent no. 4 forwarded the 12 proposal for cancellation of both the said resolutions I.e. resolution no. 39 on 16.6.2004 and resolution no. 103 of 2.11.2004, since same were against the public interest at large and accordingly the Collector, Jalgaon cancelled both the resolutions by its letter dated 30.12.2004 and copies of both said letters are produced at Exhs. 'Q' and 'Q-1' respectively. 19 Learned counsel for respondent no.4 canvassed that accordingly respondent no.4 forwarded the proposal for acquisition of the land of present petitioners to the Special Land Acquisition Officer, Jalgaon and copy thereof is produced at Exh. 'Q-2' and, therefore, it is submitted that respondent no.4 has taken steps for acquisition of the land of the petitioners and hence, in view of the afore said position, present petition has become infructuous and, therefore, same be dismissed. Consideration :- “ Whether the land of the petitioners is deemed to be de-reserved from the reservation in view of the purchase notice Exh.'D' page 24, dated 25.5.2004 issued by the petitioners under Section 127 of the Act of 1966 to respondent no.4 and received by respondent no.4 on 31.5.2004 due to non-acquisition of the said 13 land or allegedly not taking steps of acquisition of the said land within the period of six months from the date of service of such notice? “ 20 Under Section 2(15(b) of the Act of 1966, “local authority” means a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965; and under Section 2(19) of the same act, “planning authority” means a local authority; and includes the authorities provided in clauses (a) and (b) thereof. 21 Chapter VII of the Act of 1966 deals with the land acquisition comprising Sections 125 to 129. Section 125 provides that, any land required,reserved or designated in a Regional plan, Development plan or town planning scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. Section 126 provides three modes of acquisition of land required for public purposes specified in the plans. Section 127 spells out the lapsing of reservations, if any land reserved, allotted or designated for any purpose specified in 14 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 acqauired 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. Section 128 confers the power upon the State Government to acaquire land for the purpose other than the one for which it is designated in any plan or scheme. Section 129 empowers the Collector after publication of the declaration under Section 126(2) to enter on and to take possession of the land under acquisition after giving a notice of fifteen days. We are concerned with Sections 126 and 127 of the said Act of 1966 in the present case. 22 Keeping in mind the afore said scheme of the land 15 acquisition and applying the parameters thereof to the facts of the present case, admittedly respondent no.4-Municipal Council, Chopda, which is the planning authority, prepared and published draft development plan on 8.10.1986, which was modified under Sections 28 and 29 of the Act of 1966 and was sanctioned by the Director, Town Planning, Maharashtra State, Pune and same came into force and accordingly the land of the petitioners to the extent of 2 hectares from Gut No. 1629/1, situated at Chopda, District Jalgaon was reserved for primary school. However, the said land of the petitioners was neither developed nor same was acquired by the respondents/authorities within the period of ten years. Hence, after the lapse of said period of ten years, the petitioners issued purchase notice Exh.’D’ page 24 under Section 127 of the Act of 1966 on 25.5.2004 and same was received by respondent no.4 on31.5.2004. However, respondent no.4 has not acquired the said land and has not taken any steps of acquisition of the said land within the period of six months from the date of receipt of such notice. 23 Pertinently, even the declaration under Section 6 of the Land Acquisition Act, 1894 was not issued/published to acquire the petitioners afore said land. Hence, it is clear that even the steps towards acquisition of the petitioners land were not taken 16 by the respondents within the period of six months from the date of receipt of such notice, and therefore, resultantly the reservation of the petitioners land shall be deemed to have been lapsed under Section 127 of the Act of 1966. 24 Apart from that, it cannot be ignored that after issuance of purchase notice by the petitioners under section 127 of the Act of 1966, general body meeting of respondent no.4-planning authority was held on 16.6.2004 and resolution no.39 Exh.’E’ page 28 was passed and by taking into consideration all the facts, it was decided not to acquire the land of the petitioners and even the petitioners submitted the consent terms and thereby relinquished their right on the road of 15 square meters and submitted proposal Exh. ‘G’ page 33 for non-agricultural user. Moreover, reportedly general body meeting of respondent no.4 was held on 2.11.2004 and there also subject of the petitioners land was discussed and by resolution no. 103 it was decided not to acquire the land of the petitioners. 25 Having the comprehensive view of the matter, we are of the considered opinion that since respondent no.4 has not acquired the petitioners’ land or has not taken any steps for acquisition of the said land within the period of six months from 17 the date of receipt of the purchase notice i.e. 31.5.2004, the reservation on the petitioners land is deemed to have been lapsed and the said land is deemed to have been deleted from reservation under Section 127 of the Act of 1966 and the order passed by the Collector, Jalgaon on 30.12.2004 shall be of no consequence. Moreover, as canvassed by the learned counsel for respondent no.4 that the act of forwarding the proposal for acquisition of the land of the present petitioners by respondent no.4 to the Special Land Acquisition Officer, Jalgaon, copy whereof is produced at Exh. ‘Q-2’, cannot be construed as steps taken of acquisition of the land of the petitioners, since no declaration under Section 6 of the Land Acquisition Act, 1894 has been issued/published for acquisition of the land of the petitioners. 26 It is held in the case of M/s Girnar Traders vs State of Maharashtra & ors. [Appeal (civil) 3703 of 2003] with M/s S.P.Building Corporation & another vs State of Maharashtra and others, in Civil Appeal No. 3922 of 2007 [arising out of S.L.P. (C) No. 11446 of 2005] decided by Hon’ble Supreme Court that :- “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 18 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 Land Acquisition Act. 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. Any step, which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition.” 27 In this view of the matter, we have no hesitation to hold that this is a fit case to exercise extra ordinary jurisdiction under Article 226 of the Constitution of India and therefore, we are inclined to allow the present petition in terms of prayer clauses ‘C’ and ‘D’ thereof. The present Writ Petition is, therefore, allowed in terms of prayer clauses ‘C’ and ‘D’ and stands disposed of accordingly. Rule is made absolute in the afore said terms. In the facts and circumstances of the case, there shall be no order as to costs. (SHRIHARI P. DAVARE, J.) (S.B.DESHMUKH, J.) dbm/wp1373.05