Nathu Hiraman Bharambe And Ors. vs The State Of Maharashtra And Ors.
2007 Latest Caselaw 704 Bom

JUDGMENT

P.R. Borkar, J.

1. Rule. Rule returnable forthwith. With consent of the respective parties taken up for final hearing.

2. The petitioners, who are owners of land admeasuring 26 Are out of total 47 Are of Survey No. 286/3 (Block No. 982/2) situated at Faizpur, District Jalgaon, have filed this petition for declaration that the said land reserved in revised development plan issued by notification no. Vi. Yo. Faizpur (Su/TPV-4/8046) stands dereserved under the provisions of Section 127 of the Maharashtra Regional Town Planning Act, 1966 and to direct the respondents to grant permission for development of the said land and to carry on their construction and also to quash the order passed by the Director, Town Planning, Maharashtra State, Pune dated 29.7.2004.

3. It is not disputed that the land in question is owned by the petitioners. It was reserved for police quarters and police station under the revised development plan of Faizpur town. The said development plan was notified on 17.12.1987. The petitioners averred that though the reservation continued no steps for acquisition were taken by the respondents and therefore on 16/19.3.2003 (though the date of purchase notice is mentioned as 16.3.2003 in the correspondence and pleadings, the date mentioned on document Exh. 'B' is 19.3.2003) the petitioners issued purchase notice under Section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as, "the M.R.T.P. Act"). The notice was addressed to the respondent no. 3 which is the planning authority. On 15.9.2003 the Municipal Council, Faizpur passed a resolution that the land in dispute was not needed for any public purpose. On 29.9.2003 the petitioners forwarded proposal for development of land to the Municipal Council, Faizpur. However, by letter dated 8.10.2003 Municipal Council, Faizpur refused to grant permission on the ground that the land was reserved. It was informed that the acquisition process was going on. On 12.10.2003 the petitioner no. 1 made an application to the Director Town Planning, State of Maharashtra, Pune for dereservation and releasing the land on the basis of the purchase notice. On 10.12.2003 the petitioners forwarded a letter to the Superintendent of Police and the District Collector enquiring whether any steps in regard to acquisition were taken or not. On 12.12.2003, after lapse of six months from the purchase notice, the Collector called upon the Superintendent of Police to produce necessary documents, certificate and to deposit 2/3rd amount. By treating the representation dated 12.12.2003 as an appeal, the Director, Town Planning, Maharashtra State, Pune was pleased to reject the application and, therefore, this petition is filed for various reliefs as aforesaid.

4. The respondent Nos. 1 to 5 filed affidavits-in-reply. It is stated that an application for acquisition was made by the Superintendent of Police, Jalgaon to the Collector, Jalgaon by the letter dated 2.6.1989. The copy of it is produced at Exh. R-1 with the affidavit of the respondent no. 5. Therein it is stated that the land was reserved in development plan for police department and so the land may be transferred to the police department. It is also stated that the property was owned by one Nathu Bharambe and is part of Survey No. 286. The subject itself shows that the letter was sent for acquisition of the land. The 7/12 extract, a letter of Faizpur Municipal Council and maps of the property were enclosed with the said letter. It cannot be disputed that this letter pertains to request for acquisition.

5. The respondents further denied that no action was taken within six months from the purchase notice. Reference was made to the order passed by the Director, Town Planning, who had passed the order after giving opportunity of hearing to the petitioners and the concerned authorities. It is stated in para 6 of affidavit-in-reply filed by the respondent Nos. 1 and 4 that the process of acquisition was initiated by the Superintendent of Police by letter dated 2.6.1989. In response to notice given by the police department, Collector, Jalgaon vide letter no. 731, dated 28.2.2002 and letter no. 724, dated 12.12.2003 has requested the police department to submit required papers for further acqusition process. Requisite information and papers were submitted accordingly. Therefore, there is no question of the reservation having lapsed. It is further stated that the petitioners served purchase notice on the appropriate authority i.e. the Superintendent of Police on 19.3.2003, and prior to that the acquisition proceedings were initiated by the Superintendent of Police.

6. In the affidavit filed on behalf of the respondent no. 2 in para 3 it is stated that the office of the Collector vide letter dated 12.12.2003 requested the Superintendent of Police i.e. the respondent no. 5 to send a proposal for acquisition and requested to deposit 2/3rd amount for the acquired land and accordingly proposal dated 2.2.2006 was received by the respondent no. 2 on 8.3.2006. The amount of Rs. 24,36,180/- was deposited on 31.1.2007 and the Collector was pleased to appoint the deponent Kadu Chindhu Nikam under Section 52-A of the Land Acquisition Act for initiating land acquisition proceedings for acquiring the land of the petitioners. A copy of letter dated 2.6.1989 is produced with the affidavit filed by the respondent no. 5 Santoshsingh s/o Uttamsingh Bhisen.

7. Learned Senior Counsel Shri P.M. Shah has argued that after purchase notice under Section 127 of the M.R.T.P. Act on 16/19.3.2003 produced at Exh. 'B' with the petition, no steps were taken for acquisition within six months. Exh. 'C' with the petition shows that after receipt of the purchase notice the Municipal Council passed a resolution on 15.9.2003 stating that in the circumstances it was for the police department to acquire the property reserved under the development plan and accordingly the Superintendent of Police was informed by Outward No. 58 dated 5.4.2003. The Municipal Council was not intending to acquire the property. The financial position of the Council did not permit acquisition.

8. At Exh. 'E' there is a letter dated 12.12.2003 sent by the office of the Collector to the Superintendent of Police, Jalgaon referring to earlier letter dated 28.8.2002 and stating that the proposal sent for acquisition of Block No. 982/2 was incomplete, necessary documents were not enclosed and, therefore, action for acquisition could not be taken and so necessary documents in prescribed form and certificate showing willingness to deposit 2/3rd amount be sent. Thus letter dated 12.12.2003 marked Exh. 'E' and addressed by the Collector to the Superintendent of Police refers to earlier letter bearing Land Acquisition/KAVI/731/02, dated 28.8.2002 by the office of the Collector to the Superintendent of Police on same subject of acquisition of the land. The purchase notice is dated 16/19.3.2003. So, it is clear that the request for acquisition was made prior to 19.3.2003.

9. At Exh. 'I' with the writ petition, petitioners produced a copy of the order passed by the Director of Town Planning, Maharashtra State, Pune on 29.7.2004. It clearly shows that the petitioners were heard. The representation/report by the Chief Officer, the Municipal Council, Faizpur and the Assistant Director, Town Planning, Jalgaon were considered. The Superintendent of Police, Jalgaon has also given say. On the basis of the documents produced, the Director has come to a conclusion that before purchase notice dated 16/19.3.2003 the proposal was given by letter dated 2.6.1989 by the police department.

10. Learned Senior Counsel Shri P.M. Shah argued that as per para 2(D) of the Government Resolution No. LQN.18/2000/PRAKRA.121/A-2, dated 14.6.2001 produced at Page 107 with the petition, after proposal was received from the acquiring body, the Collector should verify to ascertain whether the proposal was in prescribed form and enclosed with required documents and thereafter the order should be passed under Section 52-A of the Land Acquisition Act handing over proceedings to the Land Acquisition Officer. If necessary documents are not enclosed or necessary information is not given, then the proposal should be returned and same should not be treated as received by the Collector. However the Government Resolution will have to be read as a whole and it is clear that a committee had been constituted to suggest measures for reducing delay in acquisition proceedings and the committee made 12 recommendations. In the light of recommendations directions were given. Para 2 particularly deals with the requirement of enclosing necessary documents with the proposal and delay caused for want of documents. The Government Resolution contain guidelines for various departments. It's effect on the present case will have to be considered in the light of legal position.

11. While pointing out said Government Resolution Shri Shah, Senior counsel relied upon the letter dated 12.12.2003 produced at Exh. 'E', whereby it was informed to the Superintendent of Police by the office of the Collector that the proposal was incomplete as necessary documents were not enclosed. It is stated that the documents in prescribed form and the certificate showing willingness to deposit 2/3rd amount should be sent.

12. Section 126(1) and Section 127 of the M.R.T.P. Act, which are relevant for our consideration in this matter, are as follows:

126. Acquisition of land required for public purposes specified in plans.

(1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning scheme, anyland is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in Section 113A acquire the land,

(a) by agreement by paying an amount agreed to, or

(b) ...

(c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894, and the land (together with the amenity, if any, so developed or constructed) so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index, or Transferable Development Rights under this sections or under the Land Acquisition Act, 1894, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.

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 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.

So, as per Clause (c) of Section 126(1) of the M.R.T.P. Act the Planning Authority, Development Authority or as the case may be any Appropriate Authority, may except otherwise provided in Section 113A, acquire land by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894. What is contemplated is making an application to the State Government for acquiring the land under the Land Acquisition Act, 1894. Section 127 of the M.R.T.P. Act shows that within six months of the notice, the land should be acquired or steps as aforesaid are commenced for its acquisition. In view of this, the question that arises for our consideration is whether in the facts and circumstances of this case, it can be said that before purchase notice dated 16/19.3.2003, the steps for acquisition were taken.

13. In the case of Bhagyachandra Khatri v. State of Maharashtra it was held on the facts of that case that there is failure to initiate proceedings within six months and, therefore reservation had lapsed.

14. Same was case of Balakrishna H. Sawant v. Sangli Miraj & Kupwad City Municipal Corporation . In that case the Municipal Corporation had passed resolution that it had no funds to construct High School and play ground on the land in question and since the matter was pending before the Court, the litigation might involve further expenditure and for the aforesaid reasons the Corporation did not need subject land. In view of said facts mentioned in para 3, it was held that reservation had lapsed eventhough later on the Municipal Corporation wanted to recall the resolution and had made proposal to that effect to the Government of Maharashtra which came to be rejected.

15. In the case of Baburao Dhondiba Salokhe v. Kolhapur Municipal Corporation , the petitioners land was reserved for garden and 8 meter wide D.P. road. Despite notice by the petitioners under Section 127 of the M.R.T.P. Act the land was acquired only for road purpose. Other purpose remained unserved. In these circumstances, it was held that reservation had lapsed. It was held that initiation of acquisition proceedings for D.P. road in 1981 cannot be said to be acquisition proceedings also for garden.

16. In this resolution of the Municipal Council, Faizpur produced at Exh. 'C' has no much bearing as admittedly the reservation was for police department and the Municipal Council might not be interested in acquiring and in spending money for police quarters and police station.

17. Learned Assistant Government Pleader cited certain cases. He relied upon the case of Gopal Krishna Raut v. the Commissioner, Pune Municipal Corporation 2004 (4) ALL MR 686. In that case as para 5 shows that the purchase notice dated 22.9.2000 was served on the Second respondent Corporation on 26.9.2000. On 2.1.2001 the Standing Committee of second respondent in its Meeting no. 51 passed a resolution no. 2157 for initiating the process of land acquisition in respect of the suit property. Thereafter on 16.3.2001 second respondent i.e. Municipal Corporation had submitted proposal for acquiring the land. It is observed that in the case before Their Lordships the acquisition proceedings have been initiated in 2001 itself and a resolution to that effect has been passed by the Corporation and a proposal was submitted by second respondent to the Collector of Land Acquisition Department, Pune and, therefore, reservation had not lapsed.

18. Another case cited by the learned Assistant Government Pleader is Janardhan Appa s/o Martand Appa Bondre v. State of Maharashtra . In that case as para 13 discloses, a resolution dated 6.12.1989 was passed by the respondent no. 5 Agricultural Produce Market Committee, Chikhali and the letter dated 24.1.1990 was sent to the Collector. The Collector also wrote a letter dated 27.11.1992 to the respondent no. 4 Sub-Divisional Officer. In the facts of the case, it was held that the land acquisition proceedings were initiated. Para 16 is as follows:

16. In our view, merely because for 10 years no steps are taken by the authorities, would not straightway result in the lapse of the reservation as that position will come up or will crop up only if no steps by the authorities, within six months after a notice under Section 127, is served by the land owner. In our view, therefore, though the Resolution is dated 6.12.1989 and is forwarded to the authorities concerned subsequently, that by itself would not result into accusing the respondents of having not taken appropriate steps in the matter in accordance with Section 126 of the Act. In our view, even before the issuance of the notice, steps could be said to have been taken by respondent no. 5 by passing resolution dated 6.12.1989. Even otherwise since we have already observed that the Agricultural Produce Market Committee, Chikhali, wrote to the Collector, Buldhana, on 24.1.1990 requesting the Collector to push in the matter further as regards the acquisition, can be definitely said to be the steps as contemplated under Section 126(1)(c) of the Act and, therefore, from any angle of the matter, the present action of the respondents can be said to have been definitely saved and is safe and it is not open for the petitioner to contend that reservation has lapsed as no action is taken within six months from the service of the notice.

Thus, as observed in para 16 in the case of Janardhan Bondre words, "steps as aforesaid are commenced for its acquisition" from Section 127 has reference to Section 126 and Section 126(1)(c) shows one of the ways to initiate acquisition proceedings is to make application to the State Government. In the present case a letter has been issued by the Superintendent of Police to the Collector as back as on 2.6.1989. The letter by the Collector dated 12.12.2003 produced at Exh. 'E' clearly shows that already correspondence was going on regarding the acquisition of Block No. 982/2 belonging to the petitioners. There was reference to earlier letter dated 28.8.2002 by the Collector to the Superintendent of Police regarding said subject. This shows that the acquisition proceedings were initiated before purchase notice dated 16/19.3.2003.

19. In this case, the Superintendent of Police can be said to be "appropriate authority" within the meaning of Section 2(3) of the M.R.T.P. Act, as it is the public authority on whose behalf the land is designated and Section 126(1)(c) and Section 127 of the M.R.T.P. Act show that it is to initiate acquisition proceedings by making application to the State Government. So, here the Collector is moved on behalf the State Government.

20. The Supreme Court in para 11 of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association has observed that the word, "aforesaid" in the collocation of words, "no steps as aforesaid are commenced for its acquisition" obviously refer to steps contemplated under Section 126(1) of the M.R.T.P. Act. Therefore, in this case, the letter dated 2.6.1989 produced at page 98 (Annexure R-1 to the affidavit-in-reply) and the letter dated 12.12.2003 produced at (Exh. 'E' with the writ petition) which refers to letter dated 28.8.2002 clearly indicate that steps for acquisition were commenced under Section 126(1)(c) of the M.R.T.P Act by the developing authority even prior to the purchase notice.

21. In these circumstances, the petitioners are not entitled to any of the reliefs claimed. Writ Petition is dismissed. Rule discharged. Parties to bear their own costs.