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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3167 OF 2006
WITH
CIVIL APPLICATION NO.3843 OF 2009
CIVIL APPLICATION NO.7563 OF 2010
CIVIL APPLICATION NO. 2457 OF 2011
CIVIL APPLICATION NO.8421 OF 2011
Vishwambhar Narharrao Patil,
Age: 62 years, Occ: Agri.,
R/o. Farshi Galli, Osmanabad,
Tq. & Dist. Osmanabad. ...PETITIONER
VERSUS
1. The State of Maharashtra,
Through Secretary,
Urban Development Department,
Maharashtra State, Mantralaya,
Mumbai.
2. The Director,
Town Planning,
Maharashtra State, Pune.
3. The Deputy Director,
Town Planning, Aurangabad.
4. The Town Planning Officer,
Town Planning Office,
Osmanabad, Tq. & Dist. Osmanabad.
5. The Municipal Council,
Osmanabad,
Through its Chief Officer.
6. The Collector,
Osmanabad,
Tq. & Dist. Osmanabad. ...RESPONDENTS
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...
Mr. N.P. Patil (Jamalpurkar), Advocate for
petitioner-applicant.
Mrs. S.D. Shelke, A.G.P. for respondent
State/Authorities.
Mr. R.V. Naiknavare, Advocate for respondent No.5.
...
CORAM: R.M. BORDE &
S.S. SHINDE, JJ.
DATE : 20TH OCTOBER, 2012 JUDGMENT : [ PER S.S. SHINDE, J.] .
This writ petition is filed praying therein that, this Court may hold and declare that, the land bearing Survey No.357 situated at Osmanabad, which was reserved as Site Nos. 96,97 and 98 in Development Plan sanctioned by the Government under its notification No. TPS-3484-1127-CR-118-BUD-6 dated 24th April, 1985, is not acquired within stipulated period and therefore, the said reservation is lapsed in view of provisions of section 127 of the Maharashtra Regional and Town Planning Act, 1966 (For short, "M.R.T.P. Act"). It is further prayed that, respondent No. 5 Municipal Council, Osmanabad and ::: Downloaded on - 02/08/2016 17:30:40 ::: 3 wp3167.06 respondent No. 6 Collector, Osmanabad may be directed to grant permission in favour of the petitioner to develop the land for residential purpose or any other purpose as permissible in law.
2. It is the case of the petitioner that, his land bearing Survey No. 357 situated within Municipal limits of Osmanabad city, is reserved under the Final Development Plan of Osmanabad city for the purpose of Car parking, Garden as Site Nos. 96, 97 and 98. The said land is not acquired within period of ten years from the date on which Final Regional Plan or Development Plan came into force.
3. It is the case of the petitioner that respondent No. 5 Municipal Council, Osmanabad passed Resolution No.46 for de-reservation of the land of the petitioner on 23rd September, 1989.
. The petitioner herein, served notice
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under section 127 of the M.R.T.P. Act to the Planning Authority on 17th March, 1998, however, no steps were taken for acquisition of the land of the petitioner. It is the case of the petitioner that, since no acquisition proceedings have been commenced for the acquisition of the land Survey No. 357 situated at Osmanabad city within period of six months from the date of service of notice under section 127 of the M.R.T.P. Act, reservation is lapsed and therefore, the petitioner may be allowed to retain the land and develop the same.
4. The learned Counsel appearing for the petitioner invited our attention to the grounds taken in the petition and submitted that, even till date, the respondents have not taken any steps for acquisition of land Survey No. 357 and therefore, the said reservation has been lapsed.
It is further contended that, respondent No. 5Municipal Council, Osmanabad had pased Resolution on 23rd September, 1989 for de-reservation of the land. Therefore, the learned Counsel appearing for ::: Downloaded on - 02/08/2016 17:30:40 ::: 5 wp3167.06 the petitioner would submit that, this petition may be allowed.
5. On the other hand, the learned Counsel appearing for respondent No. 5 Municipal Council, Osmanabad submitted that, though the proposal for acquisition of the land is forwarded to the Collector, there are no funds with respondent No. 5 Municipal Council, Osmanabad for depositing the same with the Collector towards compensation to be paid, in case the land of the petitioner from Survey No. 357 is acquired. The learned Counsel, therefore, submits that, this Court may pass appropriate orders.
6. The learned A.G.P. appearing for the State invited our attention to the affidavit in reply and submitted that, it is true that, the land acquisition proceedings are not initiated within period of six months from the serving of purchase notice by the petitioner on Planning Authority, however, respondent No. 5 Municipal ::: Downloaded on - 02/08/2016 17:30:40 ::: 6 wp3167.06 Council, Osmanabad submitted land acquisition proposal to the Collector and therefore, it cannot be said that, reservation is lapsed.
7. We have heard the learned Counsel appearing for the parties at length. In the present case, it is admitted :
a) the land in question is reserved for the purpose specified in the concerned plan issued under the provisions of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as "MRTP Act");
b) even after lapse of 10 years from the date on which the concerned final regional plan or final development plan has come into force, the land in question has not been acquired;
c) no proceedings for the acquisition of the land under the MRTP Act (i.e. under Section 126(2) or 126(4)) or under Section 6 of the Land ::: Downloaded on - 02/08/2016 17:30:40 ::: 7 wp3167.06 Acquisition Act, 1894 have been commenced within such period (i.e., within 10 years);
d) on expiry of that period (10 years), the petitioner before this Court, claiming to be owner or person interested in the land in question, has served "a valid purchase notice" on the planning authority to purchase the said land; and
e) even after service of such notice and expiry of six months therefrom, the land in question is neither acquired nor steps under Section 126(2) of the MRTP Act or Section 6 of the Land Acquisition Act have been taken to commence their acquisition.
8. On these admitted facts, the inevitable legal consequence, is that, the reservation, allotment or designation specified in respect of the land of the petitioner in the plan is deemed to have lapsed and thence, the ::: Downloaded on - 02/08/2016 17:30:40 ::: 8 wp3167.06 land is deemed to be "released" from such reservation,allotment or designation. Resultantly, the land i.e. bearing Survey No.357, has become available to the petitioner on and from the date of expiry of six months from the date of service of a valid purchase notice to the designated authority, for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.
9. The purport of Section 127 of the Act has been examined and expounded by the three Judges Bench decision of the Apex court in the case commonly known as Girnar Traders (II) vs. State of Maharashtra & Ors., (2007) 7 SCC 555. The petitioners are essentially relying on the observations of the Apex court in the context of factual matrix examined by it in the case of S.P.
Building Corporation & anr. vs. State of Maharashtra & Ors. in Civil Appeal No.3922 of 2007, which was disposed of by the same common judgment. It would be apposite to advert to the ::: Downloaded on - 02/08/2016 17:30:40 ::: 9 wp3167.06 relevant portion of paragraph 54 and paragraphs 55 to 58 thereof. The same read thus:
"54. ....... If the acquisition is left for time immemorial in the hands of the authority concerned by 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 ::: Downloaded on - 02/08/2016 17:30:40 ::: 10 wp3167.06 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.
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 ::: Downloaded on - 02/08/2016 17:30:40 ::: 11 wp3167.06 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 either to permit the acquisition or not to permit, ::: Downloaded on - 02/08/2016 17:30:40 ::: 12 wp3167.06 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 5-A 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 of 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 ::: Downloaded on - 02/08/2016 17:30:40 ::: 13 wp3167.06 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."
(emphasis supplied)
10. This legal exposition is holding the field and has not been overruled thus far. In that view of the matter, we have no option but to accede to the request of the petitioner to declare that the land i.e. bearing Survey No. 357 referred to in the petition is deemed to have been released from reservation, allotment or designation on and from the date of expiry of six months period from the date of service of notice on the designated authority and the petitioner who is owner interested therein is entitled to develop the same in conformity with the extant regulations and as permissible in the case of adjacent land under the relevant plan.
11. Therefore, in the light of discussion ::: Downloaded on - 02/08/2016 17:30:40 ::: 14 wp3167.06 herein above, we allow the writ petition. Rule is made absolute on above terms. The writ petition stands disposed of.
12. In view of the final disposal of the writ petition, nothing survives for consideration in the pending civil applications, hence same are disposed of.
sd/- sd/-
[S.S. SHINDE, J.] [ R.M. BORDE, J.]
sut/OCT12
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