(1) wp6457-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 6457 OF 2006 1. Nandkishor s/o Laxminarayan Kagliwal, R/o "Akash", Near Mahanubhav Ashram, Paithan Road, Aurangabad. 2. Jeevanlata Nandkishor Kagliwal, R/o as above. 3. Akash s/o Nandkishor Kagliwal, R/o as above. PETITIONERS VERSUS 1. The State of Maharashtra 2. The Municipal Corporation, Aurangabad, through its Commissioner. 3. The Assistant Director, Town Planning, Municipal Corporation, Aurangabad RESPONDENTS .... Mr. D.V. Soman, advocate for the petitioners. Mr. S.V. Kurundkar, Additional Govt. Pleader for the respondent/State. Mr. S.N. Pagare, advocate for the respondent No. 2. .... CORAM : SMT. NISHITA MHATRE AND M.T. JOSHI, JJ. DATED : 22nd JUNE, 2011 JUDGEMENT (PER : M.T. JOSHI, J.) : 1. Rule. Rule made returnable forthwith, by consent. (2) wp6457-06 2. By the present writ petition, the petitioners are seeking a declaration that reservation of 60 meters of the land for the purposes of construction of a road from Gut No. 57/1, 57/2 and 57/3 of village Itkheda, Taluka and District Aurangabad in the Development Plan, is deemed to have been released from reservation. 3. The Development Plan was prepared by the respondent authorities in the year 1991 as per the notification dated 15th October, 1991. The petitioners issued a notice under section 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short, "the MRTP Act") after ten years i.e. on 12th November, 2005, calling upon the respondent authorities to take steps for acquisition of the land within period of six months from the date of service of the notice. It is the contention of the petitioners that no such steps were taken for acquisition of the land and, therefore, in view of the provisions of section 127 of the MRTP Act, the reservation has lapsed. (3) wp6457-06 4. An affidavit is filed on behalf of the respondent No. 1 i.e. by Deputy Director of Town Planning, Aurangabad who has submitted that the petitioners have an option to develop their remaining part of the land by seeking additional F.S.I. in lieu of the area affected under the proposed road. The respondent Nos. 2 and 3 have submitted that the documents regarding the ownership were not submitted. It was submitted at the Bar that an application was made to the Collector for acquiring the property. 5. It is an admitted fact that though the notice was issued on 12th November, 2005, till date, except making an application to the Collector, no effective steps are taken in the present case. The petitioners have placed reliance on the judgement delivered by the Division Bench of this Court at Bombay in Writ Petition No. 7512 of 2006, dated 30th October, 2007 wherein the declaration of law in this regard of the Supreme Court in the case of "M/s Girnar Traders vs. State of Maharashtra & others" 2007 (3) CCC 5 (SC) has been relied in para 4. It (4) wp6457-06 reads as under : "4. Recently, in "M/s Girnar Traders vs. State of Maharashtra and others 2007 (3) CCC 5 (SC), a three-Judge Bench of the Supreme Court after considering the relevant provisions of the MRTP Act has held : "32. 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 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 Ac. 33. The MRTP Act does not contain any reference to Section 4 or Section 5A of the LA Act. The MRTP Act contains the provisions relating to preparation of regional plan, the development plan, plans (5) wp6457-06 for comprehensive developments, town planning schemes and in such plans and in the schemes, the land is reserved for public purpose. The reservation of land for a particular purpose under the MRTP Act is done through a complex exercise which begins with land use map, survey, population, studies and several other complex factors. This process replaces the provisions of Section 4 of the LA Act and the enquiry contemplated under section 5A of the LA Act. These provisions are purposely excluded for the purposes of acquisition under the MRTP Act. The acquisition commences with the publication of declaration under section 6 of the LA Act. The publication of the declaration under sub-sections (2) and (4) of Section 126 read with Section 126 read with Section 6 of the LA Act is a sine qua non for the commencement of any proceedings for acquisition under the MRTP Act. It is Section 6 declaration which would commence the acquisition proceedings under the MRTP Act and would culminate into passing of an award as provided in sub-section (3) of Section 126 of the MRTP Act. Thus, unless and until Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced. (underlining supplied)" 6. It is thus clear that the respondent authorities were required to take steps of acquisition of the land i.e. to make a declaration under section 6 of the Land Acquisition Act and mere application in this regard cannot be termed as taking steps in this respect. In view of aforementioned facts and legal position, the petition will have to (6) wp6457-06 be allowed. 7. In the result, the writ petition is allowed. Rule is made absolute in terms of prayer (C). Sd/- Sd/- [M.T. JOSHI, J.] [SMT. NISHITA MHATRE, J.] NPJ/wp6457-06