Oral Judgment: (S.C. Dharmadhikari, J.)
Rule. In view of the order passed on 01.03.2012 and by consent of the parties, we proceed to hear and dispose of the petition at the stage of admission.
2. This is a Writ Petition by a person claiming to be owner of Survey No.120, Sub-division No.1A, 2 and 3, admeasuring 2 H. 47 R of Mouza Rahatgaon, District Amravati. This land is within the municipal limits of the Amravati Municipal Corporation. This land was reserved for play ground and for primary school.
3. The respondent no.2 is the Planning Authority and the petitioner has stated that the reservation in terms of the above public purpose was sanctioned w.e.f. 25.02.1993, however, as no steps were taken for acquisition of the petitioner's land either by way of an agreement or by resorting to the provisions of the Land Acquisition Act, 1894 a notice came to be served calling upon the Planning Authority to take requisite steps in terms of Section 127 of the Maharashtra Regional Town Planning Act, 1966 (hereinafter referred to as "the 1966 Act" for short). Upon service of that notice within a statutory period of 12 months, if further steps as contemplated are not taken, it is stated that the reservation lapses and land is required to be restored to the petitioner for being used in terms of the provisions of the 1966 Act and Building Byelaws.
4. Upon notice of this writ petition being served on the respondents, reply has been filed on behalf of the Collector of the Amravati District and Municipal Corporation, Amravati and it states that the facts stated in the Writ Petition cannot be disputed and the land admeasuring 6700 sq. mtrs was reserved for the above purpose. Although it is stated that a proposal for acquisition of the land was initiated and an order was issued on 22.12.2011 by the Collector, District Amravati and ultimately joint measurements have been undertaken, but no explanation is put forward as to how further steps have been taken and within what period. In other words whether they have been taken within the statutory limits and period prescribed, has not been clarified. On the other hand, there is a reply filed by the respondent Nos.2 and 3, in which it is stated that what the petitioner claims to have served was a purchase notice and which is stated to have been received on 29.12.2010. It is stated that the measurement map was sought and it was supplied on 28.11.2011 and that is how the proposal for acquiring the land was forwarded on 15.12.2011 and the Collector has issued an order to publish a Notification under Section 4 of the Land Acquisition Act, 1894. In such circumstances, it is submitted that there is no substance in the writ petition and it should be dismissed.
5. Shri Mundhada, learned counsel appearing for petitioner has relied upon Section 127 of the 1966 Act to submit that if the land reserved, allotted or designated for any purpose as specified in the plan is not acquired within a period of 10 years from the date the development plan comes into force, then the petitioner is entitled to serve a notice in terms of the statutory provision and if proceedings for acquisition have not commenced within a period of 12 months, the land should be dereserved.
He thus prayed for allowing the writ petition in terms of prayer clause (1) and (2) which reads as under :
"1) Declare that the reservation of site no.116 for play ground and site no.117 for primary school, of land owned by the petitioners of survey no0.120, sub-division no.1A, 2 and 3 area admeasuring 6700 sq. mtrs of mouza Rahatgaon, Tq. and District Amravati has lapsed under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 and that the petitioners are free to develop the land owned by him in the manner permissible to adjacent land as per Development Plan.
2) Direct the respondents to notify and publish in the official gazette under section 127 sub-section [2] the lapsing of reservation of site no.116 for play ground and site no.117 for primary school, land owned by the petitioners of survey no0.120, sub-division no.1A, 2 and 3 area admeasuring 6700 sq. mtrs of mouza Rahatgaon, Tq. and District Amravati has lapsed under Sub-section [1] of Sec. 127 of the Maharashtra Regional and Town Planning Act, 1966."
6. After hearing the learned Counsel appearing for respective parties what we find is that the period that is contemplated, namely, 10 years from the date of sanction of the plan, came to an end on 24.02.2003. Thereafter a notice was served on 29.12.2010. That notice is duly received and from the date of service of the said notice, the period of 12 months came to an end on 28.12.2011.
7. Within such period the declaration under Section 6 of the Land Acquisition Act was not issued. The law in this regard is well settled that the steps that are contemplated by Section 127 even after its amendment is, that the declaration under Section 6 of the Land Acquisition Act, 1894 is required to be issued and published. That has not been done within the period prescribed, namely on or before 28.12.2011. It is not seriously disputed that the reservation lapses in terms of the statutory provision and the land has to be restored to the petitioner.
8. However, in terms of the statutory provisions some reservations have been made within the municipal limits of the Amravati Municipal Corporation. Hence, we had called upon the Commissioner of the Amravati Municipal Corporation to file his personal affidavit explaining why such reservations lapse because of total inaction resulting in Public Interest and Public purpose being affected. That affidavit was insisted in view of the spate of notices that have been received by the Corporation. The Corporation has in almost all the cases before this Court pleaded lack of finance and funds for initiation of acquisition process and acquiring the properties which have been reserved for public purposes. We think that it will not be appropriate, if the reservations of land for primary schools, play grounds, parks or other amenities and public purpose are allowed to lapse for want of funds. The explanation that has now been placed on affidavit is that, within the Municipal Corporation and in terms of the development plan which came into force from 25.02.1993, as many as 514 reservations were demarcated. By further notification, to that development plan, 10 more sites were included as reserved. Thereafter, a further notification came to be issued on 13.07.2010 and 17 more sites were demarcated. Thus, these are total reservations and designations for public purposes and their number is 541. Out of the same, 460 reservations are on private land and 81 reservations are on government/corporation land. The explanation that is provided is, majority of the population of Amravati is concentrated in about 60% of the city limits and the outskirts of the city are sparsely populated. About 40% of the reservations shown in the development plan of 1993 are located in the outskirts of the city which is still undeveloped because of lack of habitation. There are about 46 reservations sites situated on Government/Corporation land and they are to be developed by the Municipal Corporation. The Corporation has fully developed 17 of these reserved sites, and as far as the private lands are concerned, the Corporation has developed only 2 sites. 44 purchase notices have been received pertaining to 60 reservation sites and out of these 44 purchase notices, in respect of 31 notices, the statutory period has expired and out of this 31 notices, 23 land owners have already preferred cases seeking declaration under Section 127 of the 1966 Act. 12 cases have been already decided out of this 23 and 13 more purchase notices are received in respect of which the statutory period is yet to expire.
9. We do not understand how the Municipal Commissioner makes a statement that the Corporation is taking necessary steps for acquisition in some of the above cases and on what basis. If there are financial constraints as stated, then, in passing a resolution, copy of which is annexed to the affidavit and expressing helplessness the Corporation, which is a planning authority, has failed to provide the amenities to the residents within the municipal limits in terms of its obligatory duties under the Bombay Provincial Municipal Corporation Act, 1949. The Corporation will have to make necessary arrangements of funds and we do not approve of the explanation that the Municipal Commissioner offers in as much as there are several reservations which can be implemented with participation from the public. Presently, in days of liberalization and globalization, innovative projects are under way in several Municipal Corporation areas. Play grounds and other amenities are developed with private participation or equally by matching grants from the State or other agencies. We do not see, how the Municipal Corporation pleads lack of funds while providing such amenities. Ultimately planning in terms of 12th Schedule of the Constitution of India is a projection for future. If there is no vision and vision document is never prepared, we do not see how the municipal corporation will be able to develop the reserved plots and lands. Ultimately the reservations and designations in the development plan should not remain on paper. They have to be carried to their logical end as they serve a public purpose and in public interest, that the Corporation should make arrangement and by offering other benefits as also monetary compensation, these reservations can be utilized. It is no answer that 410 private sites are to be developed by the corporation.
If there is a proper planning, there is concern for the residents and interest of the public is at heart, then funds are never a problem and even the learned A.G.P. who appears for the State Government was unable to state as to how the Corporation pleads lack of funds. We are surprised that after such affidavits are filed repeatedly and their annexures speak for themselves, why the State does not intervene and set right the affairs. We therefore, expect that hereinafter the Municipal Corporation Amravati and Municipal Commissioner will abide by each of the statements that are made in the affidavit and when it is stated on oath that the Corporation is taking necessary steps for acquisition of the sites pertaining to 17 reservations on private lands and would ensure that the purpose of the 1966 Act and planning law is not defeated. We are of the further view that in this situation, the State Government should in its supervisory and controlling powers call for explanations as to why there is financial crunch and the reasons therefor. If the non-plan expenditure is enormous, then, the State needs to guide the Corporation how to minimize it. Equally in deserving projects, there must be financial participation of the State Government.
10. We would be failing in our duty if we do not impress upon the Amravati Municipal Corporation, its Commissioner and the State Government, the function and obligation that is to be discharged by them as Trustees of the public. In case of Pt. Chet Ram Vashist (dead) by L.Rs. vs. Municipal Corporation of Delhi reported in AIR 1995 SC 430, the Hon'ble Supreme Court has held as under :
"Reserving any site for any street, open space, park, school etc., in a lay-out plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be the coloniser in the sanctioned layout plan."
11. Very recently the Hon'ble Supreme Court in case of Girish Vyas and another vs. State of Maharashtra and others reported in AIR 2012 SC 2043, has held as under :
"151. As we have seen, the MRTP Act gives a place of prominence to the spaces meant for public amenities. An appropriately planned city requires good roads, parks, playgrounds, markets, primary and secondary schools, clinics, dispensaries and hospitals and sewerage facilities amongst other public amenities which are essential for a good civil life. If all the spaces in the cities are covered only by the construction for residential houses, the cities will become concrete jungles which is what they have started becoming. That is how there is need to protect the spaces meant for public amenities which cannot be sacrificed for the greed of a few landowners and builders to make more money on the ground of creating large number of houses. The MRTP Act does not give importance to the spaces reserved for public amenities, and makes the deletion thereof difficult after the planning process is gone through, and the plan is finalized. Similar are the provisions in different State Acts. Yet, as we have seen from the earlier judgments concerning the public amenities in Bangalore (Bangalore Medical Trust (supra) and Lucknow (M.I. Builders Pvt. Ltd. (supra), and now as is seen in this case in Pune, the spaces for the public amenities are under a systematic attack and are shrinking all over the cities in India, only for the benefit of the landowners and the builders. Time has therefore come to take a serious stock of the situation. Undoubtedly, the competing interest of the landowner is also to be taken into account, but that is already done when the plan is finalized, and the landowner is compensated as per the law. Ultimately when the land is reserved for public purpose after following the due process of law, the interest of the individual must yield to the public interest."
"152. As far as the MRTP Act is concerned, as we have noted earlier, there is a complete mechanism for the protection of the spaces meant for public amenities. . The Government and the Municipal Corporations are trustees of the citizens for the purposes of retention of the plots meant for public amenities. As the Act has indicated the citizens are vitally concerned with the retention of the public amenities, and, therefore deletion or modification should be resorted to only in the rarest of rare cases, and after fully examining as to why the concerned plot was originally reserved for a public amenity, and as to how its deletion is necessary. Otherwise, it will mean that we are paying no respect of the efforts put in by the original planners, who have drafted the plan, as per the requirements of the city, and which plan has been finalized after following the detailed procedure as laid down by the law."
"153. Having noted as to what has happened in the present matter, in our view it is necessary that we should lay down the necessary safeguards for the future so that such kind of gross deletions do not occur in the future, and the provisions of the Act are strictly implemented in turn with the spirit behind.
(i) ....
(ii) ....
(iii) One of the reasons which is often given for modification/deletion of reservation is paucity of funds, which was also sought to be raised in the present matter by the Municipal Commissioner for unjustified reasons, inasmuch as the compensation amount had already been paid. However, if there is any such difficulty, the planning authority must call upon the citizens to contribute for the project, in the public notice contemplated under Section 29, inasmuch as these public amenities are meant for them, and there will be many philanthropist or corporate bodies or individuals who may come forward and support the public project financially. That was also the approach indicated by this Court in Raju S. Jethmalani vs. State of Maharashtra, reported in (2005 (11) SCC 222)".
"154. Primary education is one of the important responsibilities to be discharged by Municipalities under the Bombay Primary Education Act, 1947. Again, to state the reality, even after sixty years after the promulgation of the Constitution, we have not been able to attain full literacy. Of all the different areas of education, primary education is suffering the most. When the Constitution was promulgated, a Directive Principle was laid down in Article 45 which states that the State shall endeavour to provide, within the period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. This has not been achieved yet. The 86th Amendment to the Constitution effected in the year 2002 deleted this Article 45, and substituted it with new Article 45 which lays down that the State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. The amendment has made Right to Education a Fundamental Right under Article 21A. This Article lays down that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. In the year 2009 we passed the Right to Children to Free and Compulsory Education Act, 2009. All these laws have however not been implemented with the spirit with which they ought to have been. We have several national initiatives in operation such as the Sarva Shiksha Abhiyan, District Primary Education Programme and the Universal Elementary Education Programme to name a few. However, the statistical data shows that we are still far away from achieving the goal of full literacy."
12. We hope that every body would now be aware of their primary responsibility of sub-serving public good and upholding public interest. We leave it to the Appropriate Authorities to act in accordance with the law laid down by the Hon'ble Supreme Court, which is binding on all of us.
13. In these circumstances, while allowing this Writ Petition, we accept the statements that have been made by the Commissioner as an undertaking to this Court. We are of the opinion that to avoid action under the Contempt Law, the Municipal Corporation and the Municipal Commissioner will ensure that public interest and public good does not suffer hereafter.
14. Rule is thus made absolute in terms of Prayer clause (1) and (2). However, there will be no order as to costs.