1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.7127 of 2009 Vijaykumar S/o. Motilal Hirakhanwala Age 74 years, Occ. Busioness Residing at 91. E1-Cid, Ridge Road, MUMBAI – 400 006. Petitioner Versus 1. The State of Maharashtra through the Secretary Ministry of Urban Development Mantralaya, Mumbai-32. 2. Jalna Municipal Council, through its Chief Officer, Jalna. 3. The Town Planner, Jalna Municipal Council, Jalna. Respondents Mr. S.P. Deshmukh, Advocate for petitioner Mr. D.R. Kale, AGP for respondent NO.1 Mr. H.K. Munde, Advocate for respondent No.2. CORAM : D.B. BHOSALE R.M. BORDE,JJ.. DATE : 3rd MARCH , 2011. ORAL JUDGMENT : [ D.B. BHOSALE,J.] 2 1] Rule. Rule made returnable forthwith by consent of parties. Learned AGP waives notice for respondent No.1. Mr. Munde, Advocate waives notice for respondent No.2. Heard learned counsel for the parties 2] The question that falls for our consideration in this writ petition under Article 226 of the Constitution of India, is as follows :- “Whether the reservation has lapsed by reason of inaction on the part of the planning authorities under the Maharashtra Regional and Town Planning Act, 1966 ( for short, “the MRTP Act”) to take steps within a period of six months from the date of service of the notice of purchase, as stipulated by Section 127 of the MRTP Act. “ 3] Brief facts, sans unnecessary details, for deciding the question raised in this petition are that the petitioner is owner of lands bearing Survey No. 386 admeasuring 2.78 H and Survey No. 389 admeasuring 1.23 H, situate within the limits of Municipal Council, Jalna. These lands are contiguous lands together admeasuring 4.1 Hectares ( for short, “the said lands”). The final development plan for Jalna city was notified and brought into force on 15.5.1989. In the development plan, part of said lands, to the extent of 1.32 H was reserved for primary school, play ground, and rehabilitation of persons affected by development plan, as reservation Nos. 54,55 and 56 ( for short, “the reserved land”). In February, 2004, the State Government effected minor modification in the development plan of Jalna, whereby, the position of the aforesaid reservations was shifted without touching the area of reservation. 3 The Collector, vide order dated 29.3.1996, granted permission to the petitioner to use the remaining area of the said land for residential purpose. . Since no steps were taken by the respondents to acquire the reserved land within the time prescribed under Section 127 of the M.R.T.P. Act, the petitioner on 9.2.2008, issued notice under Section 127 of the M.R.T.P. Act to respondent No.2 – Municipal Council. This notice was received by respondent No.2 on 11.2.2008. On 16.7.2008, respondent No.2 passed a resolution to send proposal for acquisition to the Collector,Jalna. The Chief Officer, Municipal Council, Jalna, vide his letter dated 2/7/2008, sent the proposal for acquisition of the reserved lands to the Collector. The petitioner was also accordingly informed by the Chief Officer about this development vide letter dated 29.7.2008. The Collector, Jalna invoking his powers under Section 52-A of the Land Acquisition Act, forwarded the proposal to the Special Land Acquisition Officer, (Krishna Khore), Jalna. Thereafter, the Special Land Acquisition Officer (Krishna Khore) vide letter dated 11.8.2008 asked the Taluka Inspector of Land Records, Jalna to measure the reserved lands. According to the petitioner, no further steps for acquisition of the land were taken by respondent No.2 or by the Special Land Acquisition Officer (Krishna Khore), such as, issuance of declaration under Section 6 of the Land Acquisition Act, within a period of six months/one year from the service of notice dated 9.2.2008. The period of six months/one year as contemplated by Section 127/amended section 127 of the MRTP Act, got over on 8.8.2008/8.8.2009 and in view thereof, the 4 petitioner claim that the reservation is deemed to have lapsed and that he is entitled to utilize and develop the siad land. It is in this backdrop the petitioner has prayed for direction to the respondents to release the reserved land from reservation Nos. 54,55 and 56, or declare that the said lands stand released from reservation bearing Nos. 54,55, and 56. 4] The sole contention urged by the petitioners in this writ petition, in short, was that, under Section 127 fo the MRTP Act, no steps having been taken within the period prescribed, the reservation is deemed to have lapsed. 5] Respondent Nos. 1 and 2 have filed reply affidavits dated 30/2/2010 and 31/1/2011, respectively, stating as to what steps were taken after the notice under Section 127 of the MRTP Act was received by them. On the basis of the steps taken by the respondents, upon receipt of the notice under Section 127, learned AGP appearing for the respondents submitted that the “steps” taken by them constitute “the steps” contemplated by Section 127 of the MRTP Act and hence, the reservation cannot be stated to have lapsed and/or lands stand deserved, as claimed by the petitioner. 6] Our attention was also invited to the judgment of the Division Bench dated 17/2/2011, in “Vijaykumar Motilal Hirkhanwal Vs. State of Maharashtra and others”, Writ petition No. 11759/2010, by learned counsel for the petitioner. He submitted that in terms of the said judgment, the reservations in the instant petition also stand lapsed. He submitted, the petitioner and the respondents in both 5 the writ petitions are same. In that petition (W.P. No.11759/2010) also, the petitioner sought direction to the respondents to confirm lapsing of reservation and release of the lands from reservation No. 57, within the limits of Jalna Municipal Council, under the final development plan. In other words, the petitioner sought declaration that reservation No.57 stands lapsed and deserves to be released from reservation under the final development plan of Jalna city. The reservation in that case was for the primary school and play ground. All other facts in that case and the present case, according to the petitioner, are similar and hence, it was vehemently submitted that the petitioner is entitled for the reliefs prayed for in the present writ petition. 7] We have perused the entire material placed before us for our consideration, including the judgment of this court dated 17.2.2011 in Writ Petition No. 11759/2010. We have also perused the judgment of the Apex Court in “Girnar Traders Vs. State of Maharashtra” (2007)7 SCC 555, relied upon by learned counsel for the petitioner. 8] Having regard to the facts and circumstances of this case, learned counsel for the parties are ad-idem that we need not consider the effect of the Maharashtra Regional and Town Planning (Second Amendment) Act, 2009. By this act, Section 127 of the MRTP Act has been amended and the period of six months to acquire the land after the purchase notice has been extended to twelve months. 6 9] It would be relevant to make reference to the provisions of Section 127 and 126 of the MRTP Act, for better appreciation of the question that falls for our consideration. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which the regional plan or development plan comes into forces, or the proceedings for acquisition of such lands under MRTP Act or under the Land Acquisition Act, are commenced. Secondly, if the first part of Section 127 is not complied with, or no steps are taken then the second part of Section 127 will come into operation. Under this part of the section, a period of six months is provided from the date on which the notice has been served upon by the owner within which the land has to be acquired or steps as aforesaid are to be commenced for its acquisition. The six months period shall commence from the date the owner or any person interested in the land serves a notice on the planning authority, development authority or the appropriate authority expressing his intent claiming de-reservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. The second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of the land within the period of six months from the date of service of the purchase notice. The word “aforesaid” in the collocation of the words, “no steps as aforesaid are commenced for acquisition” 7 obviously refers to the steps contemplated by Section 126 of the MRTP Act. If no proceedings as provided under Section 127 are taken and as a result thereof, the reservation of the land lapses, the land shall be released from reservation, allotment or designation and shall be available to the owner for the purpose of development. (See Girnar Trader's case) The availability of the land to the owner for the development would only be for the purpose which is permissible in the case of adjacent land under the relevant plan. 10] From conjoint reading of Section 126 and 127 of the MRTP Act, it is clear that the legislature intended to expeditiously acquire the lands reserved under the town planing scheme and ,therefore, various periods have been prescribed for acquisition of the owner's land. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the land. It gives a further time for either to acquire the land or take steps for acquisition of the land within a period of six months from the date of service of notice by the landowner for dereservation. The “steps” towards commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation. This is settled by the Supreme Court in “Girnar Trader's case”. The Supreme Court in this case has observed that, “Providing the period of six months after the service of notice clearly indicates the intention of the legislature of an urgency where nothing has been done in regard to the land reserved under the plan for a period of 10 years and the owner is deprived of the utilization of his land as per 8 the user permissible under the plan. When mandate is given in a section requiring compliance within a particular period, the strict compliance is required therewith as introduction of this section is with legislative intent to balance the power of the State of “eminent domain”. The Supreme Court, after considering the scheme of Chapter VII of the MRTP Act and more particularly Sections 126 and 127 contained in the said chapter, in para.56 and 57, held thus :- “The underling principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. The step taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land not step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land , which Government may or may not accept. Any step which may nor may not culminate in the step for acquisition cannot be said to be a step towards acquisition. 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 a step for acquisition of the land 9 under reservation. Sub-section (2) of Section 126 leave 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 Act.” [ Emphasis supplied] 11] Thus, it is clear that the acquisition commences with the publication of declaration under Section 6 of the Land Acquisition Act. The publication of the declaration under sub-sections (2) and (4) of Section 126 of the MRTP Act, read with Section 6 of the Land Acquisition Act is a sine qua non for the commencement of any proceedings for acquisition under the MRTP Act. In other words, it is section 6 declaration, as observed by the Supreme Court in Girnar's case, which commences the acquisition proceedings under the MRTP Act and culminates into passing of an award as provided in sub- section (3) of Section 126 of the RTP Act. Thus, unless and until Section 6 declaration is issued, it cannot be said that the “steps” for acquisition are commenced. 12] In the present case, legality and validity of the notice under Section 127 of the MRTP Act is not questioned by the respondents. After the purchase notice was issued by the petitioner on 9.2.2008, the Municipal Council passed a resolution on 16.7.2008, to send the proposal for acquisition to the Collector, Jalna. The Chief Officer, Municipal Council, Jalna vide his letter dated 2.7.2008, sent the proposal for acquisition of the said land to the Collector. The Collector forwarded the proposal to the Special Land 10 Acquisition Officer. The Special Land Acquisition Officer, vide letter dated 11.8.2008, asked the Taluka Inspector of Land Record, Jalna to measure the said land. After this act of the Land acquisition Officer, no further steps of whatsoever nature, including issuance of declaration under Section 6 of the Land Acquisition Act, were taken by respondent No.2 or the Special Land Acquisition Officer. In other words, the steps taken by the concerned authorities did not culminate into section 6 declaration under the Land Acquisition Act, within the period stipulated by Section 127 of the MRTP Act. This has not been disputed by learned counsel appearing on behalf of the respondents. Therefore, by no stretch of imagination, the steps taken viz. Passing of resolution by the council, asking the Chief Officer to take further steps, could be taken to be the “steps” for acquisition. 13] Similar was the situation in the Writ Petition filed by the petitioner being W.P. No. 11759/2010. The Division Bench, after considering the entire material placed before them, so also the various judgments of the Supreme Court, held that though the notice was served by the petitioner under Section 127 of the MRTP Act, no steps were taken for acquisition of the land, within the time prescribed by the said provision, and, therefore, the right accrued in the petitioner, cannot be taken away by simply passing a resolution for the reservation of the said land afresh. 14] In the present case, we are satisfied that passing of the resolution, forwarding the same to the Collector, the Collector forwarding it to the Land Acquisition officer and the Land Acquisition 11 Officer getting the land measured from TILR, cannot be treated/termed as the “steps” for acquisition, as contemplated by Section 127 of the Act. 15] In the result, the petitioner succeeds. Thus, Rule is made absolute in terms of prayer clause (B) and (C),with no orders as to costs. [R.M. BORDE,J] [D.B. BHOSALE,J.] grt/wp