Vishwambhar Narharrao Patil vs The State Of Mah & Ors
2012 Latest Caselaw 246 Bom

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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

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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.

Municipal Council, Osmanabad had pased Resolution

on 23rd September, 1989 for de-reservation of the

land. Therefore, the learned Counsel appearing for

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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