Shri Baburao Dhondiba Salokhe vs Kolhapur Municipal Corporation ...
2003 Latest Caselaw 503 Bom

JUDGMENT

R.M. Lodha, J.

1. The petitioner is owner of the land bearing R.S. No. 773 admeasuring approximately 19831 sq. mtrs., situate at Kasba Karvir within Kolhapur city. The first respondent- Kolhapur Municipal Corporation (for short the Corporation) is the Planning Authority under the provisions of Maharashtra Regional and Town Planning Act, 1966. The development plan of the Kolhapur city was revised by Corporation in the year 1977 which came to be sanctioned by the State Government and became effective from 15.10.77. In that revised development plan, the petitioner's aforesaid land was reserved for two separate purposes viz. (i) garden and (ii) 18 meters wide D.P. Road. In the year 1980 at the instance of the Corporation, the acquisition proceedings in respect of portion of petitioner's aforesaid land reserved for 18 meters wide D.P. road commenced. On 26.3.91, the acquisition proceedings in respect of land reserved for public purpose of 18 meters wide D.P. Road culminated in award. However, as regards petitioner's remaining land reserved for the purpose of garden when no steps were taken until July, 1991, the petitoner on 8th August 1991, gave notice to the Corporation under Section 127 of the Maharashtra Regional Town Planning Act, 1966 (for short 'MRTP Act') calling upon them to acquire the said land reserved for garden within the stipulated period of six months from the date of service of the notice. The notice dated 8.8.91 under Section 127 of MRTP Act was served upon the Corporation on that date itself. It appears that on 28th January, 1992, the Corporation passed a resolution reiterating its intention to acquire petitioner's land reserved in development plan for garden for the said public purpose. Thereafter, on 19.2.92 the Corporation made an application to the Collector, Kolhapur for taking necessary steps for acquisition of survey No. 773 for the public purpose of garden. It appears that somewhere in the year 1992, second draft development plan of Kolhapur city was published. In the said draft development plane, petitioner's land was proposed to be reserved for public purposes of children play-ground and housing of the dishoused. It is petitioner's case that since no steps were taken by the Corporation for compulsory acquisition of petitioner's aforesaid land reserved for garden within six months of the receipt of notice dated 8.2.91, the reservation of petitioner's land stood lapsed and accordingly, on 9.7.92, the petitioner through his supervisor submitted the layout plan for construction over the said land to the Commissioner of the Corporation. The said application dated 9.7.92 made by petitioner for construction was rejected by the Commissioner on 8.9.92 on the ground that the said land in the draft revised development plan of 1992 has been reserved for children play ground and for housing of the dishoused. The petitioner filed this writ petition on 20th October, 1992 and has prayed that it be declared that the petitioner's land being R.S. No. 733, situate at Kasba Karvir, Kolhapur stands released from reservation in the sanctioned development plan of Kolhapur city and that petitioner is entitled to develop the said land. He has also prayed for quashing and setting aside the decision of the Corporation contained in the letter dated 8.9.92. During the pendency of writ petition, it may be noted that on 18.12.99 the second revised draft development plan of Kolhapur city was sanctioned by the State Government.

2. In response to the writ petition, the first affidavit was filed by the Corporation through one Shri Hemand Chandrakant Jadhav, Junior Engineer. It is their case in the reply affidavit that since second draft development plan was published in the year 1992 and by the said draft development plan, the petitioner's said land was reserved for the public purposes of garden and housing of the dishoused and the said draft development plan was sanctioned by State Government on 19.12.99, the petitoner's property continues to remain under reservation. It is submitted by the Corporation that petitioner's said plot of land in accordance with the first revised final development plan sanctioned in the year 1977 was under reservation for two public purpose viz. garden and proposed 18 meters wide D.P. Road. As regards the land reserved for proposed 18 meters wide D.P. Road, acquisition proceedings were commenced in the year 1981 and award was passed on 26.3.91 and therefore, proceedings for acquisition of the petitioner's land having already taken, the question of lapsing of reservation does not arise. In that affidavit, it is also stated that the Corporation has passed resolution on 28th January, 1992. reiterating its intention to acquire petitioner's land for the public purpose of garden. The said resolution is within six months from the date receipt of the notice under Section 127 of MRTP Act and therefore, petitioner's case that his land stands released from reservation or that he is entitled to use the land for any user, is wholly misconceived.

3. On 15th February, 2003, this court acceded to the request of Ms. Paranjape, learned counsel for the first respondent for filing an additional affidavit of Commissioner, Kolhapur Municipal Corporation in the light of the subsequent development, particularly, second revised development plan of the area sanctioned on 18th December, 1999. The learned counsel for the Corporation was granted time to file an additional affidavit of the Commissioner, Kolhapur Municipal Corporation dealing with the aspects viz. (i) whether the land in question is needed by the Corporation now and if yes, the public purpose for which it is needed and: (ii) the financial condition of the Corporation particularly in respect of compensation that may have to be paid for compulsory acquisition of land in question. Pursuant to that order Shri S.V. R. Srinivas, the Commissioner, Kolhapur Municipal Corporation has filed his affidavit wherein it is stated that the plot of land which is subject matter of petition is under reservation of "Garden" and "Housing of the Dishoused" under the second revised sanctioned development plan dated 18th December, 199 and that came to be sanctioned by the State Government during the pendency of writ petition. It is stated in the said affidavit that the Corporation has intention of acquiring the said land and it has also necessary financial capacity to bear the cost of acquisition of the said land. It is submitted that on or around 25th September, 1992, the Corporation published a public notice informing the public that certain revisions were proposed in the first revised sanctioned plan and significantly, the petitioner's plot of land was affected by the proposed revision but the petitioner did not raise any objection whatsoever to the said proposed revision affecting the petitioner's land. It has been reiterated in the reply affidavit of Commissioner that petitioner's plot of land since 18th December, 1999 has been under reservation for two public purposes viz. 'Garden' and 'Housing of Dishoused'.

4. Be it noted that on 17th March, 2003, during the course of hearing it transpired that there was inconsistency in the affidavit filed by Shri S.V.R. Srinivas and the document Exhibit-6 annexed thereto and accordingly, we directed the learned counsel for the Corporation to ensure presence of Shri S.V.R. Srinivas alongwith the original sanctioned second revised development plan. Pursuant thereto, Shri S.V.R. Srinivas, Commissioner of Kolhapur Municipal Corporation is present alongwith the original sanctioned second revised development plan. He apologised for inaccuracy which crept in his affidavit that part of the petitioner's plot of land continued to remain under reservation for garden. He submitted that the part of petitioner's land in second revised development plan sanctioned is reserved for children play-ground and the part of it is reserved for public purpose of housing of dishoused. Shri S.V.R. Srinivias ought to have been careful in filing affidavit before this court. Since he has expressed his regret for inaccurate statement made in the affidavit, we leave this aspect of the matter here only.

5. Mr. C.J. Sawant, the learned senior counsel appearing for the petitioner strenuously urged that steps taken by the Corporation for acquisition of piece of land reserved for 18 meter wide D.P. Road would not save lapsing of reservation of the land reserved for garden in the first revised development plan of 1977 when no steps for acquisition of the land reserved for garden was taken within 10 years of the publication of development plan and within six months from the service of purchase notice under Section 127 of MRTP Act. The learned senior counsel would submit that the Corporation by resolution dated 2.5.80 resolved to acquire the part of the land out of R. S.No. 773 only which was reserved for 18 meters wide D.P. Road.The request from the Corporation to Collector was made on 21.2.81 in that behalf and notification under Section 6 for acquisition of peitioner's land reserved for D.P. Road was published on 26.4.90. According to the learned senior counsel, the acquisition of the portion of the land reserved for D.P. Road has no bearing in so far as reservation of petitioner's land for garden was concerned. The learned senior counsel submitted that on 8.8.91, the petitioner gave notice to the Corporation under Section 127 of MRTP Act which was served upon the the Corporation on that very day and within six months therefrom, no application was made by the Corporation to the Collector for acquisition of the land reserved for garden. It is the submission of the learned senior counsel that mere passing of resolution dated 28.1.92 without there being any application to the Collector for acquisition of the said land within six months cannot be considered to be step for acquisition within six months under Section 127 and therefore, the reservation of the petitioner's land for garden in the first revised development plan of the year 1977 had lapsed. In support of his contentions, the learned senior counsel relied upon the judgment of the Supreme Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association, . Relying upon the recent three Judge Bench decision of the Supreme Court in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. and Ors. , the learned senior counsel submitted that by reason of inaction on the part of the Corporation in not taking steps for acquisition of the petitioner's land for a period of more than 10 years reserved for garden and within six months despite service of notice under Section 127, the petitioner's land stood dereserved and issuance of draft revised plan in the year 1992 or sanction of final development plan in the year 1999 cannot extend the term of 10 years and take away the valuable right accrued in favour of the petitioner by lapsing of the reservation of his land.

6. On the other hand, Ms. Paranjape, the learned counsel appearing for the Corporation submitted that initially in the year 1977 in the first revised development plan of Kolhapur city, the petitioner's land was reserved for two purposes viz. (i) 18 meter wide D.P. Road and

(ii) the garden. The acquisition of the land reserved for D.P. Road commenced in the year 1981 and concluded by passing of the award on 26.3.91. The learned counsel for Corporation, thus, submitted that since piecemeal acquisition of part of land under reservation is permissible and acquisition of land reserved for D.P. Road was initiated within 10 years of the publication of development plan, for the purposes of the land reserved for garden also it would be considered that steps for acquisition concerning reservation of the said land was made in the year 1980-81 and therefore, question of lapsing of reservation of land reserved for garden would not arise. The contention of the learned counsel for the Corporation in other words is that steps for acquiring the land of the petitioner reserved for garden would be treated to have been taken by the Corporation by proceeding for acquisition of petitioner's land reserved for D.P. Road before petitioner's notice dated 8.8.91 under Section 127 of MRTP Act and, therefore, reservation of petitioner's land cannot be said to have lapsed. In this regard the learned counsel sought to rely upon the Division Bench judgment of this court in Sangli Miraj and Kupwad City Municipal Corporation v. Shri Bal Krishna Haribhau Sawant and Ors. 1999(4) ALL MR 188. The learned counsel for the Corporation also contended that by resolution dated 28.1.92 which was passed within six months of petitioner's notice dated 8.8.91, the first respondent reiterated its intention to acquire the portion reserved in R.S. No. 773 belonging to the petitioner for the public purpose of garden and passing of such resolution is a step taken by first respondent for acquisition of the said property. She would, thus, submit that by passing the resolution dated 28.1.92, the steps for acquisition of petitioner's land reserved for garden were taken within six months and therefore, also reservation of petitioner's land had not lapsed under section

127. The learned counsel placed reliance on unreported judgment of this court in Robert Joseph Casteline and Anr. v. The State of Maharashtra and Anr. (writ petition No. 3664 of 1989) decided on September 15, 1994. Relying upon the Division Bench judgment of this court in Prakash Rewadmal Gupta v. Lonavala Municipal Council and Ors. 2002 Vol. 104(1) Bom. L.R. 626, the learned counsel for the Corporation submitted that Section 127 does not impose a fetter on the duty of the public authority to revise the development plan and if it is found so necessary to impose a fresh reservation or to continue the existing reservation if public interest so warrants, the reservation cannot be said to have lapsed.

7. We shall deal with rival contentions now.

8. Some of the facts relevant for decision in the matter are not in dispute. The petitioner is owner of the land bearing R.S. No. 773, situate at Kasba Karvir, Kolhapur city. The said land admeasured approximately 19831 sq. mtrs. With effect from 15.10.77 the first revised development plan in Kolhapur city came into force and int he said plan, the petitioner's aforesaid land was reserved for the purpose of (i) 18 meters wide D.P. Road and (ii) the garden. In the sanctioned revised development plan of the year 1977, the land reserved for D.P. Road was shown in one colour while the land reserved for garden was shown in different colour. As regards the piece of land reserved for 18 meter wide D.P. Road, the process for acquisition started on 21.2.81 when the request was made by first respondent to the Collector to acquire the said land. The notification under Section 6 of Land Acquisition Act for the acquisition of land for the public purpose of 18 meter wide road was published in the Maharashtra Government gazette on 26.4.90 and the award came to be passed on 26.3.91. The acquisition of the land reserved for D.P. Road in the first revised development plan, thus, was concluded on 26th March, 1991. On 8.8.91, the petitioner gave notice under Section 127 of MRTP Act to the Corporation calling upon them to acquire petitioner's land reserved for garden in the revised development plan of the year 1977 within six months from the service of the said notice. The notice dated 8.8.91 was received by the Corporation on that day itself viz. 8.8.91. The Corporation passed a resolution on 28.1.92 reiterating its intention to acquire petitioner's not of land reserved for garden. It was only on 19.2.92 that the Corporation applied to the Collector, Kolhapur for taking necessary steps for acquisition of petitioner's land reserved for garden in the sanctioned development plan of the year 1977.

9. The issue we deal first, is: whether by initiating acquisition proceedings of piece of land reserved for 18 meter wide D.P. Road in the year 1981. can it be said that acquisition proceedings were also initiated for the land reserved for garden in the development plan of 1977. As already noted by us above that in revised development plan sanctioned in the year 1977 for Kolhapur city, petitioner's part of land was shown reserved for 18 meter wide D.P. Road and part of the land was shown reserved for garden. The petitioner's land was, thus, reserved in development plan for two distinct and separate public purposes. It is not in dispute and rather it is admitted by the learned counsel for the Corporation that the acquisition proceedings initiated in the year 1981 by applying to the Collector, Kolhapur for acquiring the petitioner's land was only for the portion of the land reserved for 18 meter wide D.P. Road. The acquisition proceedings pursuant thereto were only with respect to that piece of land which was reserved for 18 meter wide D.P. Road. Admittedly, in the declaration made under Section 6 of the Land Acquisition Act in so far as petitioner's land is concerned, the only piece of land for which declaration was made was regarding the piece of land reserved for 18 meter wide road. It is also admitted fact that the award dated 26.3.91 was only concerning the land which was acquired for D.P. Road. Section 127 of MRTP Act provides for lapsing of reservation. It reads thus-

"127. If any land reserved, allotted or designated for any purpose specific din 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 way serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the 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 purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan."

10. What is provided in Section 127 is that if any land reserved for any purpose in the development plan is not acquired by agreement within 10 years or its proceedings are not commenced within such period, the owner may serve a notice on the authority in question to that effect that if within six months of the service of the said notice the land is not acquired or no steps taken for its acquisition, the reservation shall be deemed to have lapsed and thereupon, the land shall be deemed to be released for such reservation. The expression, any land reserved for any purpose is indicative that such lapsing of reservation is referable to the piece of the land which is reserved, allotted or designated for the purpose specified in the plan. If large chunk of land in the development plan is reserved for more than one purpose specified in the development plan, obviously, the whole of that land reserved for different purposes as specified in the development plan have to be acquired by agreement within 10 years or steps for acquiring the said land have to be commenced within the time prescribed therein. Or in other words, for each of such piece of land reserved for specific purpose in the development plan the steps for acquisition have to be taken as per the modes provided in Section 126 and within the time prescribed in Section 127 of MRTP Act. The valuable right in the property of a owner cannot be suspended perpetually if such property in the development plan is reserved for more than one purpose by acquiring small piece of the property reserved for one purpose and nothing in done thereafter regarding the other part of the land reserved in development plan for other purpose. This is not the intention of legislature if Section 127 is read meaningfully. Section 127 does not envisage that acquisition of a portion of the land reserved for one purpose in the development plan would save the lapsing of the other portion of the land from reservation if the land reserved for that purpose in the development plan is not acquired by agreement within 10 years or the proceedings for its acquisition are not commenced within the period prescribed therein if the owner serves a notice upon the Planning Authority to that effect. The steps for acquisition of any land reserved for any purpose in the development plan has to be taken within six months of the service of that notice. The contention of the learned counsel for the Corporation that piecemeal acquisition is permitted under Section 6 of Land Acquisition Act and the provision contained in Section 127 of MRTP Act needs to be read in conjunction with Section 6 does not help the stand of the Corporation. The scheme of law as provided in Sections 126 and 127 of the MRTP Act is simple. If any land is reserved for specific purpose in any development plan then the acquisition of such land or steps for acquisition of such land required for the purpose specified in the plan has to be taken within time as provided under Section 127 and if such land reserved for specific purpose in the development plan is not acquired or no steps taken within time as contemplated under Section 127, such reservation lapses. The acquisition of land or steps for acquisition of land specified for one purpose in the development plan cannot be used for acquisition or steps for acquisition or a land for other purpose specified in the development land. In the words of the Apex Court in Dr. Hakimwadi Tenants Association (supra), "By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the right of an individual". Section 127 of the Act is a part of law for acquisition of lands required for public purpose viz. for implementation of the sections of town planning. The statutory bar is created by Section 127 by providing that reservation of land under a development scheme shall lapse if no steps are taken for acquisition of land within a period of six months from the date of service of notice. The date of purchase notice is an integral part of the machinery created by which acquisition of lands takes place. it is referable to the land which is reserved for specified purpose in the development plan and cannot be stretched to refer to the land reserved for other purposes. In our considered view, therefore, there is no merit in the submission of the learned counsel for respondent No.1 that the acquisition proceedings for the land reserved for 18 meter wide road having initiated way back in the year 1981 i.e. within 10 years of the development plan, the lapse of reservation of the land reserved for garden would not arise has no substance.

11. If by passing the resolution dated 28th January, 1992 within six months of the petitioner's notice dated 8.8.91 whereby the Corporation reiterated its intention to acquire the portion reserved for public purpose of garden, can it be said to be step for acquisition of the land required for the public purpose of garden is the next question for our determination. Since this controversy, in our considered view, is concluded by the judgment of the Apex Court in Dr. Hakimwadi Tenants Association (cited supra), we deem it proper to refer to that case at some length. The fact sin that case were that one Dr. Eruchshaw Jamshedji Hakim was the former owner of the double storeyed building situate on land admeasuring 3645.26 square meters bearing the cadastral survey No. 176 of Tardeo, Bombay known as Dr. Hakimwadi. The said Dr. Eruchshaw Jamshedji created a trust in respect of the said property. The Planning Authority published a draft development plan in respect of the land where the said property was situated. In the development plan, the said property was reserved for recreation ground. The State Government finalised and sanctioned the development plan on January 6, 1967. The final development scheme came into effect from February 7, 1967 and the land was reserved for recreation ground. No action having been taken for acquisition of the land until January 1, 1977, the owners-trustees served a purchase notice dated July 1, 1977 on the Commissioner for Municipal Corporation of Greater Bombay either to acquire the said land or release it from acquisition. The said notice was received by the Municipal Corporation of Greater Bombay on July 4, 1977. The Executive Engineer of the Corporation on July 28, 1977 wrote to the owners (trustees) and called for information regarding the ownership of the land and the particulars of tenants thereof. In the letter it was stated that the relevant date under Section 127 of the MRTP Act would be the date on which this information was received. The owners (trustees) through their lawyer sent a letter on August 3, 1977 and conveyed that the date of six months stipulated by Section 127 has to be computed from the date of receipt of notice and since the Planning Authority was the Municipal Corporation of Greater Bombay, it had all relevant record concerning the property in question. The Executive Engineer of Municipal Corporation received that letter on August 16, 1977 and wrote a letter back to the owners (trustees) that the period of six months provided under Section 127 would commence on August 4, 1977, the date when the requisite information was furnished. Thereafter, by letter dated November 2, 1977, the Executive Engineer of Municipal Corporation of Greater Bombay intimated the owners (trustees) that Municipal Corporation had accorded sanction to initiate acquisition proceedings in respect of the property in question under the Land Acquisition Act and resolution was passed on 10th January, 1978 for the acquisition of the land and application was made to the State Government on January 31, 1978 for taking necessary steps. The State Government issued notification under Section 6 of Land Acquisition Act on April 7, 1978. Dr. Hakimwadi Tenants Association filed a writ petition before this court on July 17, 1978. The learned Single Judge allowed the writ petition on the ground that the Planning Authority failed to take steps for acquisition of land under Section 126(1) of the Act read with Section 6 of Land Acquisition Act within 10 years from the date on which final development plan came into force. The acquisition proceedings. commenced by the State Government under Sub-section (2) of Section 126 at the instance of the Planning Authority were not valid in asmuch as the issuance of notification under Section 6 of Land Acquisition Act was not within the period of six months as required under Section 127. The learned Single Judge held therein that the period of six months prescribed under Section 127 commenced from the date of service of purchase notice and the Corporation had to take steps to acquire the property before January 4, 1978. The learned Single Judge also held that the most crucial step towards acquisition was application to be made by the Corporation to the State Government under Section 126(1) for acquisition of the land and it ought to have been taken within a period of six months commencing from July 4, 1977 i.e., the date of service of purchase notice. The matter was carried in appeal by the Municipal Corporation of Greater Bombay to the Division Bench. The Division Bench upheld the view of the learned Single Judge. The Municipal Corporation of Greater Bombay then took up the matter to the Apex Court. The point involved before the Apex Court was whether the period of six months specified in Section 127 of the Act is to be reckoned from the date of service of purchase notice dated July 1, 1977 by the owners on the Planning Authority viz. Municipal Corporation of Greater Bombay or the date on which the requisite information of particulars was furnished by the owners. The Apex Court dealing with the said question upheld the finding recorded by the High Court that the Planning Authority having failed to take any steps viz. of making an application to the State Government for acquiring the land under the Land Acquisition Act within a period of six months from the date of service of purchase notice, the notification issued by the State Government under Section 6 of the Land Acquisition Act that such land was required for public purpose i.e. for recreation ground was invalid, null and void. The Supreme Court while upholding the finding of this court in Hakimwadi Tenants Association (supra) has in unequivocal terms held that making an application to the State Government for acquiring the land under the Land Acquisition Act is a most crucial step under Section 126(1) of the MRTP Act for acquisition of the land. In the light of the law laid down by Apex Court in Hakimwadi Tenants Association, the contention of the learned counsel for Corporation that by passing resolution on 28.1.92 which was within six months of petitoner's notice dated 8.8.91, the steps for acquisition of the land in question can be said to have been taken, cannot be accepted. The crucial step for acquisition of land as contemplated under Section 126(1) of MRTRP Act, in our considered view, is not the passing of resolution by the Planning Authority to acquire the land but making application by the Planning Authority to the State Government for acquisition of the land required for the purpose specified in development plan. It is not in dispute that within six months of receipt of purchase notice dated 8.8.91 (admittedly purchase notice was received by the Corporation on 8.8.91), no application or request was made by Corporation to the State Government for acquisition of the land in question for the purpose specified in development plan. Rather the fact is that the application was made by the Corporation to the Collector, Kolhapur only on 19.2.92 pursuant to the resolution dated 28.1.92. Thus, making an application by respondent No.1 to the Collector, Kolhapur on 19.2.92 for acquisition of the land in question is apparently beyond six months of the service of purchase notice under Section 127 and by that time, the reservation had already lapsed on expiry of six months from the date of receipt of purchase notice.

12. At this stage, we may deal with the judgment of this court in Robert Joseph Casteline (cited supra) pressed into service by the learned counsel for the Corporation in support of her contention that by passing resolution steps was taken by the Corporation for acquisition of the land in question. Robert Joseph Castelline was owner of the land situate at village Kondevita, Mahakali Caves Road, Andheri (East), Bombay. In the development plan publishe on August 6, 1966, his land was shown as reserved for recreation ground. He served the notice dated March 21, 1988 under Section 127 of MRTP Act upon the Municipal Corporation of Greater Bombay. No reply was received by him. Thereafter, on December 20, 1988 he addressed a letter to the Corporation claiming that reservation has lapsed. The Corporation by reply dated January 27, 1989 pointed out that the resolution recommending acquisition of land was passed on September 13, 1988 and the said resolution was forwarded to the Collector for proceeding for acquisition on September 16, 1988. The correspondence ensued between him and the Corporation and as according to him, State Government did not take any action, the writ petition was filed before this court for declaration was filed before this court for declaration that reservation has lapsed and petitioner was entitled to develop the property. The Division Bench of this Court held thus--

"Shri Naphade, learned counsel appearing on behalf of the petitioners, submitted that the reservation stands lapsed in accordance with the provisions of Section 127 of the Act in view of the failure of the State Government to take steps to publish notification under Section 6 of the Land Acquisition Act within the reasonable period of six months from the date of service of the notice but urged that the State Government could not have waited for a period of six years to act upon the resolution by publication of notification under Section 6 of the Act. The submission is obviously correct and the explanation of the State Government for delay in publication of notification for a period of six years could not be accepted. The Supreme Court in the decision reported in 1988 M.L.J. I, Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association and Ors., has led down that it is incumbent upon the planning authority and the State Government to act upon the purchase notice within the stipulated period. It is undoubtedly true that if the steps are taken for acquisition within a period of six months, then publication of the notification beyond six months cannot be faulted with. In the present case, though the Corporation had passed the requisite resolution within six months, the Government has delayed publication of Section 6 notification for a period of six years.

The explanation offered for the delay by the Special Land Acquisition Officer is entirely unsatisfactory and the petitioners are entitled to relief of a declaration that the reservation had lapsed but for what transpired during the pendency of the petition."

13. On close reading of the aforesaid observation, it would be seen that the learned counsel appearing for writ petitioners therein did not dispute that the Corporation had taken requisite steps for acquisition of the lands within the period of six months from the date of service of notice. What was urged before this court was that the State Government could not have waited for a period of six years to act upon the said resolution by publication of notification under Section 6 of the Act. The observation made by this court that the Corporation had passed the requisite resolution within six months upon which reliance was placed by learned counsel for the Corporation has to be read in the context, firstly, the learned counsel for respondents did not dispute steps for Corporation has taken requisite steps for acquisition of the land within the period of six months from the date of service of purchase notice and secondly, that application by way of forwarding resolution to the Controller on September 16, 1988 was within a period of six months from the date of service of notice viz. 21st March, 1988. The Division Bench judgment of this court in Robert Joseph rested on the facts noted above and does not support the contention of the learned counsel for the Corporation that resolution passed by the Corporation is a step for acquisition of the land reserved in the development plan.

14. Sangli Miraj and Kupwad City Municipal Corporation (supra) upon which reliance was placed by the learned counsel for the Corporation also does not help the contention of the learned counsel for respondent in the fact and circumstances of the present case. That was a case where development plan came into force on 1.6.77. Resolution for compulsory acquisition of land was passed by Planning Authority on 22.12.89 and proposal for land acquisition was submitted to the Land Acquisition Officer on 22.2.90. It was thereafter that the purchase notice as served by the land owner on Planning Authority on 31.12.92. In the backdrop of these facts, the Division Bench of this court held that the effective steps required to be taken by the Planning Authority for compulsory acquisition of land under Section 126 of MRTP Act upon service of purchase notice were already taken by the Planning Authority prior to service of purchase notice and therefore, by not doing anything further within six months from the receipt of purchase notice, the land did not stand released. In the present case, as already noted by us, neither the land required for the purpose of garden in the development plan was acquired by agreement within 10 years of the coming into force of the final development plan nor any steps were taken for acquisition of the land reserved for garden before service of purchase notice nor the steps were taken by the Corporation for acquiring the land reserved for garden within six months from the date of receipt of purchase notice.

15. Now we turn to the contention of the learned counsel for the Corporation that Section 127 does not impose a fetter on the duty of Planning Authority to revise the development plan and when in the revised draft development plan of the year 1992 which was sanctioned in the year 1999, the land in question has been reserved for public purposes viz. children play ground and for housing of the dishoused, the reservation of the land in question for garden in the development plan of 1977, does not lapse. This contention cannot be accepted on the face of three Judge Bench decision of the Apex Court in Bhavnagar University (supra). In Bhavnagar University, the Supreme Court was seized with the question: whether by a reason of inaction on the part of the State and its authorities under the Town Planning Act to acquire the lands for a period of 10 years in terms of the provisions of Land Acquisition Act, 1894 despite service of notice, the same stood dereserved/de-designated in view of issuance of draft revised plan under Section 21 of Gujarat Town Planning Act and Urban Development Act, 1976 and thereby the term of 10 years stood extended. The aforesaid question arose out of the facts which are noted in para 3 of the report that reads thus-

"3. The basic fact of the matter is not in dispute.

The State of Gujarat in exercise of its power conferred upon it under Section 20 of the said Act reserved certain areas of which the respondents herein amongst others are the owners.

On or about 03.03.1986 a development plan was finally published in terms of the provisions of the said Act, and the period of 10 years therefrom lapsed on 02.03.1996. A revised development plan however came into being on 20th February, 1996. It is not in dispute that respondents who claim ownership of the lands in question issued notices in terms of Sub-section 2 of the Section 20 of the said Act, asking the State Government to acquire the properties in terms thereof."

16. After survey of the provisions of Gujarat Town Planning and Urban Development Act, 1976 which are paramateria and identical to the provisions of Maharashtra Regional and Town Planning Act, 1966 to the extent controversy is involved before us, the Apex Court in paras 20, 21, 22, 25, 26, 27, 28, 29 and 30 observed thus-

"20. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that Clause (k) of Sub-section (2) of Section 12 does not find mention in Sub-section (2) of Section 17 as regards proposed reservation for the said state and other statutory authorities but Clauses

(n) and (b) of Sub-section (2) of Section 12 are specifically mentioned in Section

20. In Section 20, provisions of Clauses

(b), (d), (f), (k) and (o) of Sub-section (2) of Section 12 have specifically been mentioned. The High Court has proceeded on the basis that the words 'designation' or 'reservation' are interchangeable for the purpose of the Act. The said finding of the High Court is not in question.

21. Whereas in terms of Section 12 and 17 of the said Act, the reservation and designation have been provided, Sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in Clauses

(b) and (n) of Sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Sub-section (1) of Section 20 is merely, an enabling provision.

22. Sub-section (2) of Section 20, however, carves out an exception to the exercise of powers by the state as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under Sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.

25. This Court in Municipal Corporation of Greater Bombay's case (supra), in no uncertain terms while construing the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the following words:

"While the contention of learned counsel appearing for the appellant that the words six months from the date of service of such notice in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a development plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual....."

It was observed that:

"..... The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under Sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan secondly, by enacting Sub-section (4) of Section 126 that if a declaration is not made within the period referred to in Sub-section (2), the state government may make a fresh declaration but, in that event, the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 6, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the appropriate authority to initiative any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough. The development or the planning authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter n statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed."

It is true that Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 so far as may be would be applicable thereto, but thereby the rights of the owners in terms of Sub-section (2) of Section 20 are not taken away.

26. The question, however, is as to whether only because the provision of Section 20 has been referred to therein, would it mean that thereby the legislature contemplated that the time of ten years specified by the legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.

27. The said words indicate the intention of the legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other.

28. Section 21 does not envisage that despite the fact that in terms of Sub-section (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the land defreezed. In the event the submission of the learned solicitor general is accepted the same would completely render the provisions of Section 20(2) otiose and redundant.

29. Sub-section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the state become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the state will be entitled to exercise its jurisdiction under Sub-section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the state to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the state enumerated under Sub-section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the state may use the same power in a changed situation.

30. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well-settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The state and other authorities while acting under the said Act are only creature of statute. They must act within the four-corners thereof."

17. The legal position as regards MRTP Act on the basis of aforesaid observations made by Apex Court in Bhavnagar University emerges that by imposition of a statutory obligation under Section 38 on the part of the State or the appropriate authority to revise the development plan the rights of the owners accrued in terms of Section 127 are not taken away. Section 38 of MRTP Act, in our opinion, does not and cannot be read to mean that substantial right conferred upon the owner of the land or the person interested under Section 127 is taken away. In other words, Section 38 does not envisage that despite the fact that in terms of Section 127, the reservation lapsed, only because of a draft revised development plan or final revised development plan is made would automatically result in revival of reservation that had lapsed. If the reservation of the petitioner's land for the purposes of garden had lapsed and as we found in fact has lapsed on 28.2.1992, because of draft revised plan made in the year 1992 and thereafter final revised development plan sanctioned in the year 1999 would not revive the lapsed reservation. The learned counsel for Corporation relied upon paras 23 to 25 of Prakash Rewadman Gupta (supra). Paras 23 to 25 of the said judgment read thus-

"23. A judgment of a Division Bench of this Court consisting of M.L. Pendse, J. (as the learned Chief Justice then was) S.M. Jhunjhunwala, J. in Robert Joseph Castellino v. State of Maharashtra, throws light on the issue which arises in the present case. In the said case, in a Development Plan which was published on 6th August, 1966, certain lands situated at Andheri (East) were reserved for a recreation ground. On 21st March, 1988, the owners and developers served a notice on the Municipal Corporation under Section 127 and having received no reply therein contended by a letter dated 20th December, 1988 that the reservation had lapsed. The Corporation, thereafter, claimed that it had passed a resolution on 13th September, 1988 recommending the acquisition of the lands and it was forwarded to the Collector on 16th September, 1988. In the meantime, on 30th April, 1988 a fresh draft Development plan was published inviting objections and in the said plan also the lands were reserved for the same public purpose viz., for a recreation ground. Subsequently, on 26th August, 1994 a notification under Section 6 of the Land Acquisition Act, 1894 as required under Sub-section (2) of Section 126 of the M.R.T.P. Act, 1966 was published. The Division Bench of this Court held that while the Municipal Corporation had taken steps for the acquisition of the land within a period of six months of the service of the notice under Section 127, it was not open to the State Government to wait fora period of 6 years thereafter to issue a notification under Section 6 of the Land Acquisition Act, 1894. The explanation which had been offered by the Special Land Acquisition Officer for the delay was held to be entirely unsatisfactory. The Division Bench then held that in the circumstances the Petitioner would be entitled to a relief of the declaration that the Reservation had lapsed but for what had transpired during the pendency of the petition. That circumstances was that on 30th April, 1988, which was a month after the notice was served under Section 127 of the Act, the Draft Development Plan was published in which the lands were again shown to be reserved for a public purpose. The petitioners before the Court sought the deletion of the land from reservation, but their claim was not accepted and the final Development Plan was sanctioned on 12th November, 1992. The submission which was urged on behalf of the State was that notification under Section 6 of the Land Acquisition Act, 1894 was in pursuance of the Final Development Plan which was sanctioned. This Court accepted the aforesaid contention and, while dealing with the objection of the Petitioner that the fresh reservation in the revised Development Plan was mala fide, the Court held as follows:

"It was urged that the lands were reserved for a public purpose with effect from year 1966 and no steps were taken to acquire the same and it would be unjust and unfair to the Petitioners that the Govt. should be permitted to acquire the lands in year 1994. The contention that the respondents are acting mala fide cannot be accepted, even assuming that the reservation under 1966 development plan had lapsed because of failure of the respondents to take requisite steps after service of purchase notice under Section 127 of the Act, still that cannot lead to the conclusion that the public purpose for which the lands were designated had come to an end. The provisions of Section 127 prescribed that the reservation would lapse but lapsing of the reservation is not equivalent to the lapsing of the public purpose. It is always open for the planning authority to reserve the land in respect of which the reservation had lapsed for a public purpose on the next development plan."

These observations are in our respectful view apposite to the situation in the present case and with respect, we concur with the prosecution of law which had been enunciated in the judgment of the Division Bench of this Court. As already noticed earlier, Section 127 deals with a specified contingency viz., one where the lands which have been reserved have not been acquired within a period of 10 years of the enforcement of the final Development Plan or the final Regional Plan, as the case may be. The provisions of the section have to harmoniously construed with the other provisions of the Act. Section 127 does not impose a fetter on the duty of the public authority to revise the Development Plan and if it is found so necessary to impose a fresh reservation or to continue the existing reservation if public interest so warrants. This interpretation is consistent with the language of Section 127, finds support in the judgment of the Division Bench and would obviate a serious prejudice to public interest if the Court were to come to the conclusion that the lapsing of the reservation in the Development Plan would lead to the consequence that the land in respect of which reservation had lapsed is irretrievably lost for the public purpose for which a reservation is considered necessary in the interests of the public.

24. Unlike Section 127, Section 49 of the Act is not prefaced by the requirement that the land which is the subject matter of reservation, allotment or designation for any purpose has not been acquired with in a period of ten years from the date on which the final Regional or Development Plan as the case may be, has come into force. The implementation of a final Regional or Development Plan and the lapse of a period of ten years from its enforcement is not a condition incorporated for the applicability of Section 49. Section 49 empowers the owner or person affected to serve on the State Government a notice requiring the Appropriate Authority to purchase his interest in the land in accordance with the provisions of the Act in certain specified contingencies. These specified contingencies are provided for the Sub-section (1) of Section 49 and amongst them are two which should be material for the present purposes. Clause (a) of Sub-section (1) of Section 49 deals with a situation where land is designated by a plan as subject to compulsory acquisition. Clause (d) deals with a situation where permission for the development of land is refused or is granted subject to conditions. Under Section 46, a Planning Authority while considering an application for permission to develop land has to have regard to the provision of any draft or final plan or proposals. If the Planning Authority refuses, as in the present case, development permission on the ground that the land is reserved in the Draft Revised Development plan for a public purpose, the provisions of Section 49 are attracted. Where the owner claims that the land has become incapable of reasonably beneficial use in its existing state or that it cannot be rendered capable of reasonably beneficial use as a result of the conditions imposed for development or where the owner of the land claims that because of the designation or allocation of the land in any plan, he is unable to sell it except at a price lower than that at which he might reasonably have been expected to sell the land he is empowered to issue a notice of purchase to the State Government. The State Government on receipt of the purchase notice has to call for the report of the Planning Authority and the Appropriate Authority. The State Government may thereafter, confirm the purchase notice or reuse to do so or, as the case may be, direct that development permission be granted with or without conditions. Sub-section (5) of Section 49 provides that the purchase notice shall be deemed to have been confirmed if the State Government does not pass any final order thereon within six months of the service of the notice. Similarly under Sub-section (7) the reservation is deemed to lapse 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 power of the land owner to issue a notice of purchase under Section 49 is conditioned by the provisions of Sub-section (1) to the section. Therefore, even if the reservation cannot lapse in a given case because the requirements of Section 127 are not satisfied or met, the land owner still has the option of moving the State Government under Section 49 on the ground that the requirements of Section 49 have been duly fulfilled. Where the land is designated in a plan as subject to compulsory acquisition or where the development permission has been refused as in the present case, it is well open to the land owner to apply to the State Government for a direction to the Appropriate Authority to purchase it in accordance with the provisions of the Act. The land owner to whom the remedy under Section 127 is not available in a case such as the present, as a result of the reservation of the land in the revised Draft Development Plan, still has the remedy of moving the State Government under Section 49 of the Act. The State Government must also keep in the balance the need of the land owner to develop the land and of not subjecting him to an indefinite fetter upon the beneficial use and enjoyment of his property.

25. In the present case, a period of ten years had elapsed after the final Development Plan was published on 1st February, 1978. In the Draft Revised Plan of 1988 thereafter the reservation of the land for the purpose of the College of the Third Respondent continued to subsist. The issuance of the notice under Section 127 will not have the effect of obliterating the reservation of the land under the Revised Draft Development Plan. The remedy of the Petitioner would be to move to the State Government under Section 49 of the Act which it is open for the Petitioner to do. The Petitioner, it must be noted, has relied upon a judgment of a Division Bench of this Court in Mohamed Ibrahim Ejaz and Anr. v. State of Maharashtra and Anr. That case also involved the same reservation as was so originally in the present case for the extension of the Dr. B.N. Purandare College and the Survey

Hissa No. 1, 2 and 3 and Survey No. 81. The land owner had issued a purchase notice under Sub-section (1) of Section 49 on 7th July, 1980. No steps were taken within the stipulated period after which on 18th December, 1982, the Government confirmed the purchase notice. Relying on the provisions of Sub-section (5) of Section 49, this Court held that the notice shall be deemed to have been confirmed at the expiration of a period of six months and if within one year from that date no action had been adopted by the Municipal Council for commencing acquisition proceedings, the reservation would lapse. The Petitioner relies upon the judgment of the Division Bench a copy whereof is annexed to the Petition. The Petitioner has however, not followed the remedy under Section 49 and has instead taken recourse to Section 127 which for the reasons already noted will not assist him.

In the facts and circumstances of the present case, therefore, we are of the view that the Petitioner is not entitled to a declaration, as prayed for, that the reservation in respect of his land in the Development Plan has lapsed; that the reservation in favour of the Third Respondent was illegal and that the Petitioner is entitled to carry on construction on the land. We leave it open to the Petitioner to pursue the remedy under Section 49 of the Act and in the event of a notice under the aforesaid provision being issued by the Petitioner, the State Government shall deal with it appropriately having regard to the provisions of the Act and what has been set out by us earlier. The learned Counsel appearing on behalf of the Petitioner has submitted that in response to a communication dated 3rd July, 2001 of the Chief Officer of the First Respondent, the Third Respondent has signified by a letter dated 7th July, 2001 that it does not posses the funds requisite for the acquisition of the land. If this is so, an early resolution of the question as to whether the land is at all required to be kept under reservation is called for. The Municipal Council which is the Planning Authority as well as the Third Respondent have avoided the responsibility of taking a considered decision of the question as to whether the land is required to implement the reservation, on the specious plan that the Third Respondent is the "Appropriate Authority". The Special Land Acquisition Officer had as far back as on 27th June, 1990 and on 26th September, 1995 addressed communications to the Third Respondent setting out certain requisitions. The Third Respondent claims that it was in correspondence with the authorities of the Education Department. Be that as it may, we are of the view that the First Respondent must expeditiously determine whether the reservation is now necessary and whether the First Respondent is in fact in a position, whether by itself or together with the Third Respondent, to implement the reservation by financing the cost of the acquisition of the land. The First Respondent shall make this determination within a period of three months from today and will take necessary steps in accordance with law if it arrives at a decision that the reservation should not be continued. We also leave it open to the Petitioner to take steps under Section 49 of this Act, if he is so advised. In the event of a notice being given under Section 49 the State Government, would have regard to all relevant facts and circumstances and arrive at a considered decision. Subject to the aforesaid direction to the First Respondent and while leaving it open to the Petitioner to take recourse to the remedy under Section 49 or under any other provisions of law, we decline to grant relief in the terms as prayed for."

18. In our considered view, the observations made in para 23 of the Prakash Rewadman Gupta are not consistent with the law laid down by Apex Court in Bhavnagar University to the effect that Section 21 of Gujarat Act (similar to Section 38 of MRTP Act) which imposes statutory obligation on the part of the State and the appropriate authority to revise the development plan does not take away the rights of owners in terms of Sub-section (2) of Section 20 (similar to section 127 of MRTP Act). As per the proposition pronounced by Apex Court in Bhavnagar University when applied to Sections 38 and 127 of MRTP Act it can safely be held that Section 38 does not envisage that despite the fact that in terms of Section 127, the designation or reservation shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 38 does not manifest a legislature intent to curtail or take away the right acquired by a landowner under Section 127 of getting the land defreezed.

19. Accordingly, we have no hesitation in holding that the land comprising of R.S. No. 733 situate at Kasba Karvir to the extent it was reserved in the first revised development plan of 1977 for specified purpose of garden has lapsed.

20. In the result, writ petition is disposed of by following order:-

i) It is declared that the land being part of R.S. No. 733, situate at Kasba Karvir, Kolhapur, reserved for garden in the first revised development plan, 1977 has lapsed and stands released from the said reservation.

ii) The decision of first respondent contained in the letter dated 8.9.92 is quashed and set aside and the first respondent is directed to reconsider petitioner's application dated 9.7.92 afresh in accordance with law expeditiously and in no case later than three months from the date of receipt of this order.

No costs.

Upon oral prayer made by the learned counsel for Corporation, the parties are directed to maintain status-quo in respect of the land in question for a period of four weeks.

Certified copy expedited.