1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8963 OF 2004 Prakash Meghraj Chauhan & anr. ...Petitioners. vs. 1.The State of Maharashtra & ors. ...Respondents. --- Mr.S.M.Gorwadkar, for Petitioners. Mr.A.H.Palekar, A.G.P. for Respondents. --- CORAM: D.K.DESHMUKH & N.D.DESHPANDE, JJ. DATED: 21ST April,2008. 2 P.C.:- 1. Heard the learned Counsel appearing for both the sides. The following are the admitted facts relevant for deciding this petition:- (i) The petitioners are the owners of city survey no.240/1, Survey no.32, “A” ward within the limits of Lonavala Municipal Council. In the final development plan of the town, the land mentioned above is at reservation no.79 which is reserved for Samaj Mandir and sports complex. (ii) It is also an admitted position that the notice as required by the provisions of Section 49 of the Maharashtra Regional and Town Planning Act was issued by the petitioners to the State Government and the Director of Town planning and Lonavala Municipal Council which is dated 30.6.1997. (iii) It is also an admitted position that after receiving the notice issued under Section 49 of the Act by the petitioners, the President of the 3 Municipal Council wrote a letter dated 12.2.1998 to the State Government requesting the State Government to take steps for acquisition of the land for public purpose for which it is reserved under the development plan. 2. In this petition, the petitioners claim a declaration that in view of failure of the Municipal Council and the State Government to acquire the land in terms of provisions of the Maharashtra Regional and Town planning Act, the reservation of the land for public purpose in the final development plan has lapsed and therefore, the petitioners are entitled to develop the land on the assumption that it can be used for residential purpose. 3. The learned Counsel appearing for petitioners relying on the provisions of Section 49 of the Act submits that admittedly the petitioners had issued a purchase notice to the Municipal Council and the State Government but no action was taken by the State Government. Therefore, in view of the provisions of sub-section (5) of Section 49 of the 4 Act, the notice is deemed to have been confirmed by the State Government. According to the learned Counsel, thereafter the planning authority has, for acquisition of the land, to take steps under Section 126 of the Act. If the State Government has not taken steps within one year, the reservation lapses. The learned Counsel appearing for petitioner relying on the provisions of Section 126 of the Act and the judgment of the Supreme Court in the case of “Girnar Traders Vs. State of Maharashtra & ors., (2007)7 Supreme Court Cases 555” submits that as the State Government did not take any steps to acquire the land within one year of receiving the letter from the Municipal Council for acquisition of the land, the reservation has lapsed. 4. The learned Counsel appearing for Municipal Council, on the other hand, submits that the Corporation has complied with the provisions of Section 49 of the Act and has made an application to the State Government for acquiring the land under the Land Acquisition Act. The learned Counsel submits that the Municipal Council was always ready to 5 deposit whatever amount that was required to be deposited for the purpose of acquisition of the land. The learned Counsel further submits that because the notification under Section 6 of the Act has not been issued within a period of one year of commencement of development plan in view of the provisions of sub- section (4) of section 126 of the Act, the petitioner would be entitled to receive compensation as on the date on which the notification under section 6 is issued. The learned Counsel submits that the judgment of the Supreme Court in the case of “Girnar Traders” is also not relevant because that judgment has considered the provisions of Section 127, 125 and 126 of the Maharashtra Regional & Town planning Act and not the provisions of Section 49 of the Act. 5. Now the question that falls for consideration is “whether in view of the provisions of Section 49 of the Act read with the provisions of Section 126 of the Maharashtra Regional and Town Planning Act, the reservation of the land for the purpose of extension of sports complex and for Samaj Mandir has lapsed”. There is no dispute that the 6 petitioners have issued a purchase notice as required to be issued by the provisions of Section 49 of the M.R.T.P. Act. There is no dispute that the State Government did not give any final order within six months of receipt of the purchase notice and therefore, the purchase notice is deemed to have been confirmed by the State Government, in view of the provisions of sub-section (5) of Section 49 of the Act. It is thereafter that the provisions of Sub- section (7) of Section 49 of the Act comes into play. Sub-section (7) of Section 49 of the Act reads as under:- “49.(7) If within one year from the date of confirmation of the notice, the Appropriate Authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required under section 126, the reservation, designation, allotment, indication or restriction on development of the land shall be deemed to have lapsed; and thereupon, the land shall be deemed to be released from the reservation, designation, or, as the case may be, 7 allotment, indication or restriction and shall become available to the owner for the purpose of development otherwise permissible in the case of adjacent land, under the relevant plan.” Perusal of the above provisions shows that if within one year of the date of confirmation of the notice the appropriate authority fails to make an application to acquire the land in respect of which the purchase notice has been confirmed as required by Section 126 of the Act, the reservation is deemed to have lapsed. There is no dispute that within a period of one year from the date on which the purchase notice is deemed to have been confirmed, the Municipal Council addressed a letter to the State Government, that letter is dated 12.2.1998. In that letter, the Municipal Council stated that the Municipal Council has received the purchase notice dated 2.7.1997 and thereafter, the municipal council passed a resolution dated 3.1.1998 for acquisition of the land for the purpose for which it is reserved and that the proposal also has been submitted by the 8 municipal Council to the Collector for acquisition of the land, and therefore, a request was made to the State Government to take steps to acquire the land. Perusal of the provisions of Sub-section (7) of Section 49 of the Act shows that what the appropriate authority is required to do is that it is required to make an application as required by the provisions of Section 126 of the Act. In the present case, there is no dispute that the appropriate authority referred to in sub-section (7) of Section 49 of the Act is the Municipal Council. At this stage, therefore, the provisions of Section 126 of the M.R.T.P. Act become relevant. Sub-section (1) of Section 126 of the M.R.T.P. Act reads as under:- “126.(1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the Planning Authority, Development Authority, or as the case may be, (any Appropriate Authority may, except as otherwise provided in section 113A) (acquire the land,- (a) by agreement by paying an 9 amount agreed to, or (b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor's interest to be determined by way of the said Authorities concerned on the basis of the principles laid down in the Land Acquisition Act,1894, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act,1894, 10 and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections or under the Land Acquisition Act,1894, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.)” Perusal of the above quoted provision shows that one of the mode of acquisition of land is making an application to the State Government for acquiring such land under the Land Acquisition Act. It is clear from the record that the Municipal Council did make an application for acquiring the land to the State Government. At this stage, now therefore, sub- section (2) of Section 126 of the Act becomes relevant, which reads as under:- “126(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or 11 [if the State Government (except in cases falling under section 49 [and except as provided in section 113A)] itself is of opinion] that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act,1894, in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section: [Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.]” Perusal of the above quoted provision of sub-section (2) of Section 126 of the Act shows that if after receiving the application, the State Government is satisfied that the land is needed for public purpose then it may make declaration in the official gazette 12 in the manner provided under section (6) of the Land Acquisition Act in respect of the said land. Proviso to sub-section (2) of Section 126 of the Act shows that subject to the provisions of sub-section (4) a declaration under section 6 referred to in sub- section (2) of Section 126 of the Act cannot be made after expiry of period of one year from the date of publication of draft development plan. The provision contained in the proviso is subject to the provisions of sub-section (4) of Section 126 of the Act:- “126(4) [Notwithstanding anything contained in the proviso to sub-section (2) and sub-section (3), if a declaration] is not made within the period referred to in sub-section (2) (or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning [(Amendment) Act,1993)], the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act,1894, in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at 13 the date of declaration in the Official Gazette made for acquiring the land afresh.]” Perusal of sub-section (4) of Section 126 of the Act quoted above makes it clear that this provision permits the State Government to make a declaration under Section 6 of the Act even after expiry of period of one year mentioned in the proviso. However, in such a case the owner becomes entitled to market value not as on the date when the plan was finalised but the market value as on the date of the declaration under section 6 of the Land Acquisition Act. Thus, the submission of the learned Counsel appearing for the petitioners that the proviso of sub-section (2) of Section 126 of the Act bars the Government from making declaration under Section 6 of the Land Acquisition Act after one year, has no substance. What is to be seen is that the proviso provides for making of declaration within one year of development plan and not from the date of confirmation of the notice. Therefore, so far as the question of purchase notice is concerned, proviso to 14 sub-section (2) of Section 126 of the Act is totally irrelevant. There is no other provision pointed out which places any restriction on the power of the State Government or time limit to issue notification under Section 6 after receiving the request from appropriate authority for acquisition of the land. In our opinion, therefore, the municipal Council has complied with the requirements of Section 126 of the Act as required by the provisions of sub-section (7) of Section 49 of the Act and therefore, it cannot be said that the reservation in relation to the petitioners' land has lapsed. The learned Counsel appearing for petitioners places reliance on the observations of the Supreme Court in the case of “Girnar Traders”. In our opinion, the observations of the Supreme Court in that judgment are not relevant for deciding this petition. For deciding this petition, what is to be considered is the provisions of Section 49 of the Act and those provisions did not fall for consideration before the Supreme Court in that case. To our mind, so far as Section 49 of the Act is concerned, the scheme is very clear i.e. that purchase notice is to be given 15 to the State Government, then the State Government has to take steps within six months and failure of the State Government to take steps within six months results in confirmation of the notice and then within one year of confirmation of notice the appropriate authority has to make application for acquisition of land, if that is done lapsing of reservation does not occur. 6. However, the learned Counsel appearing for petitioners submits that the reservation of the land of the petitioners for public purpose cannot be allowed to remain indefinite. In our opinion, the submission has substance, specially because, the Municipal Council also appears to be eager to acquire the land for the designated public purpose. The learned Counsel appearing for Municipal Council states before us that the Municipal Council is also willing to deposit with the Land Acquisition officer whatever amount that may be directed by the Land Acquisition officer for the purpose of acquisition of the land. In our opinion, acquisition of the land of the petitioner will also not adversely affect the 16 interest of the land owner because in view of the provisions of Section 126 of the Act if now a notification under Section 6 of the Act is issued, the land owner would be entitled to market value of the land as on the date of that notification. 7. We have heard the learned Counsel appearing for the State Government. The State Government also does not appear to be averse to the idea of compulsory acquisition of the land for the benefit of planning authority. In our opinion, therefore, the following order would meet the ends of justice:- It is declared that the such land continues to be reserved for sport complex and Samaj Mandir and the reservation of the land has not lapsed. The State Government is directed to consider the application submitted by the appropriate authority and to issue notification as required by the provisions of Section 126 of the Maharashtra Regional & Town Planning Act, as expeditiously as possible, in any case within a period of three months from today. 17 The petition is disposed of. (D.K.DESHMUKH, J.) (N.D.DESHPANDE, J.) ---