-1- mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 971 of 2008 1. Pratap Shivajirao Jadhav and another ..Petitioners vs. 1. State of Maharashtra & ors. ..Respondents Shri S.S.Patwardhan for petitioners. Shri P.I.Khemani, A.G.P. for respondent nos. 1 and 2. CORAM: CORAM: CORAM: J.N.PATEL & J.N.PATEL & J.N.PATEL & S.J.KATHAWALLA S.J.KATHAWALLA S.J.KATHAWALLA JJ. JJ. JJ. 11th November, 2008 11th November, 2008 11th November, 2008 P.C. P.C. P.C. 1. Rule. By consent, Rule made returnable forthwith. Heard the learned Advocates for the parties. 2. The petitioners are the owners of the land bearing Survey No.118 situated at Islampur District Sangli. The development plan for the city of Islampur was sanctioned by respondent no.1 i.e. State of Maharashtra on 20th January, 1980. The said plan is published in the Government Gazette on 28th February, 1980. In the sanctioned Development Plan, the petitioners’ land admeasuring about 84 R is shown as reserved for widening of the -2- road/proposed road. Out of the total land of the petitioners bearing Survey No.118 land admeasuring about 40 R was also reserved for extension of the school run by the Gurukul Vidyalaya. The said reservation was separately impugned by the petitioners under Writ Petition No.4973 of 2006 which petition was disposed of by this Court by its order dated 29th November, 2007 declaring the said land to the extent of 40 R out of Survey No.118 free from reservation for extension of Gurukul Vidyalaya under the Development Plan. The present petition, therefore, pertains only to the land admeasuring about 84 R out of survey no.118 reserved for widening of the road. 3. It is the case of the petitioners in the present writ petition that reservation for the purpose of road widening/proposed road on the petitioners’ land bearing survey no.118 situated at Islampur, District Sangli, in view of statutory provisions contained under section 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short MRTP Act) has lapsed. 4. Section 127 of the MRTP Act, states that, if -3- any land is reserved, allotted or designated for any purpose specified in any plan under the said Act, is not acquired by agreement within 10 years from the date on which a final regional plan or final development plan came into force or if the proceedings for acquisition of such land under the said Act or under the Land Acquisition Act, 1894 (I of 1984) are not commenced within such period the owner or any person interested in the land may serve a notice on the Planning Authority, the Development Authority or as the case may be, appropriate authority, to that effect; and if within six months from the date of service of such notice, the land is not acquired 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, allotment or designation and shall become available to the owner for the purposes of development as otherwise, permissible in the case of adjacent land under the relevant plan. 5. It is the case of the petitioners that the final development plan came into force on 28th -4- January, 1980 and the petitioners were entitled to serve a notice under section 127 of the MRTP Act, on 20th January, 1990. The petitioners issued notice under section 127 of the MRTP Act on 13th September, 2004 to the respondent Islampur Municipal Council through its Chief Officer i.e. respondent no.3 herein and requested them either to acquire the said land or to purchase the said land. The petitioners further intimated to respondent no.3 that if no proposal for acquisition/purchase of the said land was initiated by respondent no.3 within six months, then reservation would stand lapsed. The petitioners also sent a copy of the notice of purchase under section 127 of the said Act to other authorities under the Town Planning Department of the State of Maharashtra. The Assistant Director of Town Planning, Sangli by his letter dated 3rd December, 2004 requested the Chief Officer of respondent no.3 to initiate proceedings for acquisition of the petitioners’ land failing which it is intimated that the reservation of the land for road would stand lapsed. By letter dated 29th October, 2004 President of respondent No.3 Municipal Council forwarded to the Collector of Sangli i.e. respondent no.2, a proposal for -5- acquisition of the petitioners’ land contained in Revision Survey No.118 reserved for creation of 80 feet road which the petitioners submit cannot be termed as a necessary step to start acquisition proceedings in respect of the petitioners’ land. 6. The petitioners have submitted before us that since the respondents did not take any steps for the purpose of acquisition of land pursuant to the petitioners purchase notice issued on 13th September, 2004, the petitioners applied to respondent no.2 under the Right to Information Act on 1st April, 2005 enquiring about the status of the proceedings. By letter dated 5th May, 2005 the Collector of Sangli, respondent no.2, communicated to the petitioners that proposal for acquisition of the petitioners’ land for the proposed road submitted by respondent no.3 vide their letter dated 29th October, 2004 is no proposal for acquisition of the petitioners’ land. Respondent No.2 has communicated that respondent no.3 was required to deposit the sum equivalent to 2/3rd of the compensation payable by respondent no.3 to the petitioners along with the proposal. It is further communicated that balance 1/3 is required to be -6- deposited before the Award under section 11 of the Land Acquisition Act is made. It is further communicated that unless respondent no.3 Municipal Council deposits a sum equivalent to 2/3 amount of compensation i.e. payable to the petitioners no notification under section 4 of the Land Acquisition Act can be issued. 7. The petitioners have submitted that since no response was received from the respondents even thereafter, the petitioners once again made an application under the Right to Information Act, 2005 to the office of respondent no.2 on 23rd July, 2005 and enquired about the status of the proceedings in respect of acquisition of their land placed under reservation by respondent no.3 for the purpose of road widening/proposed road. The Collector of Sangli, respondent no.2 herein, by letter dated 4th August, 2007 informed the petitioners that respondent no.3 has not deposited the sum equivalent to 2/3 of the compensation payable to the petitioners, which is mandatory. The petitioners were further informed that unless such sum is deposited with the office of respondent no.2 the proposal cannot be processed any further. -7- 8. The petitioners, therefore, submitted that Islampur Municipal Council i.e. respondent no. 3 has not acquired or has not taken any action for acquisition of the petitioners’ land placed under reservation for the purpose of road widening/proposed road. The petitioners submitted that notice under section 127 of the MRTP Act was issued by them on 13th September, 2004. The period of six months expired on 13th March, 2005. However, the respondents neither acquired/purchased the petitioners’ land nor did they take any steps for proceeding for acquisition of the petitioners’ land. The petitioners, therefore, submitted that reservation of their land for the purpose of road widening has lapsed under section 127 of the MRTP Act. 9. It was submitted before us on behalf of the respondents that the acquisition of petitioners’ land has not lapsed. However, they were unable to point out as to what steps were taken by the respondents pursuant to the petitioners’ purchase notice issued on 13th September, 2004 which would show that the respondents had taken steps for -8- acquisition/purchase of the petitioners’ land required for the purpose of road widening/proposed road. Respondent nos. 1 and 2 have in their affidavit stated that the President, Municipal Council, Islampur, respondent no.3 herein submitted the proposal vide letter dated 29th October, 2004 to acquire the land bearing Survey no.118 of village Islampur for the purpose of road of 9.14 x 24.20 meters under section 127 of MRTP Act. It is further submitted that by letter dated 18th October, 2004, the Office of Collector, Sangli, respondent no.2, communicated to the President, Municipal Council, Islampur to submit the complete land acquisition proposal with all required documents of the land with 2/3 amount as per Government Resolution No.LQN/18/2000/pralr121/A-2 dated 14th June, 2001. Respondent NO.2 has further pointed out in the affidavit that till date of filing of the said affidavit i.e. 29th May, 2008 requisite proposal for land acquisition with requisite amount as per the Government Resolution is not received by the office of Collector, Sangli, i.e.respondent no.2. An affidavit is also filed by the Deputy Director of Town Planning, Pune Division, wherein they have submitted that the -9- proposal of acquisition of land owned by the petitioners was submitted by the President of Municipal Council, Islampur, respondent no.3 to the Collector,Sangli, respondent no.2, on 29th October, 2004 and, therefore, the Municipal Council has taken necessary steps for acquisition of the petitioners’ land falling under the provisions of Development Plan Zones because of which reservation of the petitioners’ land cannot be treated as lapsed. It is further submitted that Islampur Municipal Council has not responded to the letter of the Collector, Sangli dated 18th November, 2004 mentioned by the petitioners. It was further submitted that the Government is directing Islampur Municipal Council, respondent no.3 and Collector, respondent no.2 to declare the Award and pay the compensation to the petitioners as per law within a period of one year. 10. In the case of Girnar Traders Vs. State of Maharashtra and others reported in (2007) 7 Supreme Court Cases 555, the Hon’ble Supreme Court had the occasion of considering in detail as to when it can be said that the steps of acquisition are commenced. Paragraphs 56, 57 and 58 of the said -10- judgment of the Hon’ble Apex Court are reproduced hereunder. "56. The underlying 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 and 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 or may not culminate in the step for acquisition cannot be said to be a step towards acquisition. 57. 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 under reservation. Sub-section (2) of Section 126 leaves it open to the State Government -11- 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. 58. The MRTP Act does not contain any reference to Section 4 or Section 5-A of the LA Act. The MRTP Act contains the provisions relating to preparation of regional plan, the development plan, plans 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 inquiry 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 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. 11. In this case before us, it is an admitted fact that after receiving the purchase notice dated 13th -12- September, 2004 the only thing done in the matter is that Islampur Municipal Council submitted the proposal dated 29th October, 2004 to the Collector, Sangli for acquisition of the land owned by the petitioners. In view of the decision of the Hon’ble Supreme Court in Girnar Traders case (supra), this would not amount to a step commencing acquisition proceedings. Even in the affidavit filed by the respondents except for involving themselves into a blame game the respondents have failed to show that they have taken any steps which can be construed as steps taken for acquisition of the petitioners’ land. We are, therefore, of the view that the reservation of the petitioners’ land for the purpose of road widening/proposed road to the extent of 84 R out of survey no.118 situated at Islampur, District Sangli has lapsed. Rule is, therefore, made absolute in terms of prayer clauses (a) and (b) with no order as to costs,. (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.) (S.J.KATHAWALLA J.) (J.N.PATEL J.)