1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 302 OF 2006 Mrs. Suneeta G. Mhatre, ) Age 65 years, Occ.: Household, ) R/at “Suyash”, Opp. Jain Mandir, ) Tembi Naka, Thane (W). ).. .. Petitioner. VERSUS 1) The Commissioner, Kalyan Dombivali ) Municipal Corporation, Corporation ) Building, At & Post Kalyan, Dist.Thane. ) 2) Asstt. Director of Town Planning, ) Kalyan Dombivali Municipal ) Corporation, At & Post Kalyan, ) Dist. Thane. ) 3) The Collector, Thane Collectorate, ) Thane. ) 4) The Govt. of Maharashtra, ) (Notice to be served on the Secretary ) to the Govt. of Maharashtra in Urban ) development Dept., Mantralaya, ) Mumbai – 400 032. .. .. .. ).. .. Respondents. Mr. D. K. Ghaisas for the Petitioner. Mr. A. S. Rao for Respondent Nos.1 and 2. Mr. C. R. Sonawane, AGP for Respondent Nos.3 and 4. 2 CORAM : BILAL NAZKI and J. H. BHATIA, JJ. DATED : 18TH OCTOBER, 2008. ORAL JUDGMENT (Per Bilal Nazki, J.): The petitioner is an owner of a plot of land bearing Survey No. 78/2 situated at Kalyan (Adharwadi), Bhiwandi Shahad Road, Dist. Thane. 2. On 16th January, 1980, respondent No.3 sanctioned a revised development plan under the provisions of Section 38 r/w Section 23(1) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter for short referred to as “the MRTP Act”) for the entire area within the jurisdiction of the then Kalyan Municipal Council. The petitioner' s land was mentioned in the schedule to the notification and was earmarked for saw mills and timber depots. A revised plan was prepared in December, 1996 and notification was issued on 20th November, 1998 calling for objections to the amended Draft Development Plan and petitioner's land use was changed and was reserved for Maharashtra State Road Transport Corporation. But nothing was done to acquire the land. The petitioner moved an application on 18th February, 2003 in terms of Section 127 of the MRTP Act to either dereserve the land or acquire the land. But nothing was done although five years have passed. Therefore, she filed this writ petition seeking direction from this 3 Court and also sought quashing of orders contained in Exhibits “E” and “G” to the petition. 3. By letter dated 16th August, 2003 the petitioner was informed about an earlier letter dated 18th February, 2003 by which the petitioner had been informed that the possession be handed over to the respondents by transfer against Transfer Development Right. It appears that two letters were written to the petitioner in response to her application under Section 127 of the MRTP Act. One was dated 10th March, 2003 and another was dated 16th August, 2003. The petitioner did not respond to these letters and the respondents on 16th August, 2003 wrote a letter to the Collector requesting him to acquire the said land for the respondents. 4. The only question which needs to be addressed by this Court is whether the respondents have taken any steps as contemplated under Section 127 of the MRTP Act to defeat the application of the petitioner. Section 127 of the MRTP Act reads thus: "127. Lapsing of reservations.- If any land reserved, allotted or designated for any purpose specified in 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 or as the case may be, appropriate authority to that effect; and if within six months from the date of the service of such 4 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 purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.” From bare perusal of this section it becomes clear that the steps mentioned in the provisions are relatable to the acquisition and the process of acquisition of the land under the Land Acquisition Act starts with the Notification under Section 4(1) of the Land Acquisition Act. 5. Therefore, in our view, it may not be possible to consider that the respondents have taken any steps for acquisition of the land unless and until a notification under Section 4(1) of the Land Acquisition Act is issued. The Land Acquisition Act itself is a full Code and once the respondents have initiated the process for acquisition of the land the time frame is fixed till the passing of the Award. Therefore, the people would have not to wait indefinitely for their land to be acquired. Learned Counsel for the respondents, however, submits that the letter written by the respondents to the Collector for acquiring the land would be a step as mentioned in Section 120 of the MRTP Act cannot be accepted because then the people can be asked to wait till infinity and the purpose of Section 127 of the MRTP Act would get defeated. Learned Counsel for the respondents relies on Section 5 126 of the MRTP Act and submits that if the authorities want to acquire the land they have three options. The first option is by agreement by paying an amount agreed to. The second option would not be available in this case and the third option would be by making an application to the State Government for acquiring such land under the Land Acquisition Act. Therefore, he contends once an application is made to the State Government it should be considered that the steps as mentioned under Section 127 of the MRTP Act have been taken. For the reasons given by us hereinabove, this argument cannot be accepted. 6. It is further cont ended by the learned Counsel for the petitioner that the matter is concluded by the judgment of the Supreme Court in the case of Girnar Traders v/s State of Maharashtra and others, reported in (2007) 7 Supreme Court Cases 555. In this case also a similar argument was made and the High Court agreed with the contentions of the Corporation. But the Supreme Court set aside that Judgment of the High Court and in paragraphs 54, 55, 57 and 63 held as under : "54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owner's property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corporation of greater Bombay case. If the acquisition is left for time immemorial in the hands of the authority concerned by 6 simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub-section (4) of Section 126; and till then no declaration could be made under Section 127 as regards lapsing of reservation and contemplated declaration of land being released and available for the landowner for his utilisation as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for dereservation of the land. Not only that, it gives a further time for either to acquire the land or to 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. 55. 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 utilisation of his land as per 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 State possessed the power to take or control the property of the owner for the benefit of public cause, but when the State so acted, it was obliged to compensate the injured upon making just compensation. Compensation provided to the owner is the release of the land for keeping the land under reservation for 10 years without taking any steps for acquisition of the same. 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 7 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 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. 63. The High Court has committed an apparent error when it held that the steps taken by the respondent Corporation on 9-9- 2002 and 13-9-2002 would constitute steps as required under Section 126(1)(c) of the MRTP Act. What is required under Section 126(1)(c) is that the application is to be moved to the State Government for acquiring the land under the LA Act by the planning / local authority. Passing of a resolution by the Improvement Committee recommending that the steps be taken under Section 126(1)(c) or making an application by the Chief Engineer without there being any authority or resolution passed by the Municipal Corporation, could not be taken to be steps taken of moving an application before the State Government for acquiring the land under the LA Act. The High Court has committed an apparent error in relying on these two documents for reaching the conclusion that the steps for acquisition had been commenced by the Municipal Corporation before the expiry of period of six months which was to expire on 18-9-2002.” Even in the present case there is not even a resolution by the Corporation as to whether the land has to be acquired or not. Therefore on the basis of the letter written by the respondent to the Collector the rights of the petitioner 8 could not be defeated. 7. For these reasons, the writ petition is allowed. The impugned letters are quashed and set aside and it is ordered that the land be treated as dereserved in terms of Section 127 of the MRTP Act. 8. Rule made absolute in terms aforesaid. No order as to costs. Sd/- (BILAL NAZKI, J.) Sd/- (J. H. BHATIA, J.)