Oral Judgment: (Ravindra V. Ghuge, J.)
1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.
2. The petitioner is an agriculturist aged 77 years. It is stated that he is suffering from various ailments. He is a joint owner of agricultural land Gat No.933 (Old Survey No.212/1), admeasuring 15-R. The said land is in the joint ownership and possession of the petitioner.
3. Respondent No.2 is the Municipal Council, Faizpur, Tal. Yawal, Dist. Jalgaon. In 1981, respondent No.2 clamped reservation on survey no. 205 for creation of a library. The petitioner is unconcerned with the said survey. The chart of reservation, supplied to the petitioner under the Right to Information Act, evidences this fact. However, map drawing the reservation has wrongly shown survey No.212 which belongs to the petitioner. The copy of the reservation chart and the map is at Annexure œB?, which is at Page No.13 and 14 of the petition paper book.
4. The petitioner made an application dated 06/10/1990 addressed to respondent No.2 contending therein that no steps have been taken for acquisition of his land. He put forth options either to give him compensation or to cancel the reservation. Respondent No.2 passed a resolution dated 13/02/1991 bearing No.378 deciding therein that the land of the petitioner is not necessary for the purpose of reservation. The copy of the application put forth by the petitioner dated 06/10/1990 and the resolution passed by respondent No.2 dated 13/02/1991 is Annexure œC? collectively, at page No.15 and 16 of the petition paper book.
5. The petitioner contends that a legal notice dated 03/04/1999 was then issued to the respondents, calling upon them to free his land from the alleged reservation. Copy of the said notice is Annexure œD? at page No.17 of the petition paper book. Under Right to Information Act, the petitioner learnt that respondent No.3 had issued a letter calling upon respondent No.2 to clarify and explain what steps have been taken by respondent No.2 in furtherance to the notice of the petitioner dated 03/04/1999. The said letter dated 16/08/1999 bearing O/W. No.424 is Annexure œD? at page No.20.
6. The petitioner claims to have been paying taxes regularly. In 2005, the petitioner had an offer from a Cellular Service Operator for erection of a mobile tower on his land. He submitted a letter dated 28/11/2005 to respondent No.2 seeking its no objection. The said application was rejected by reply dated 07/12/2005. Copies of the application, tax receipt and reply of respondent No.2 are at Annexure œE? collectively from page No. 22 onwards.
7. The petitioner, then, lastly issued a notice u/s 127 of the M.R.T.P. Act, 1966 dated 27/10/2011 calling upon the respondents to free his land from reservation. Respondent No.2 replied vide its letter dated 16/02/2012 claiming that a resolution was passed on 27/01/2012, regarding acquisition of the said land. Copy of the said legal notice dt.27/10/2011 and the reply of respondent No.2 dtd. 16/02/2012 is Annexure F at page No.26 to 42 of the petition paper book.
8. Since no definite stand was being taken by the respondent, the petitioner preferred this writ petition.
9. Respondent No.2 has filed its affidavit in reply, raising an objection that the claim of the petitioner of having issued a notice u/s 127 of the M.R.T.P. Act, 1966, is misconceived and the same cannot be construed to mean a legally valid notice. It is contended that the Municipal Council has resolved to submit the proposal for acquisition of the land in Gat No.933 admeasuring 15R (belonging to the petitioner) for the purpose of library. Thereafter, there have been no steps taken by the respondents.
10. Respondent No.1 / State of Maharashtra and respondent No.3 the Assistant Town Planning Officer, Town Planning Department, Jalgaon have jointly filed an affidavit in reply. The sum and substance of the said reply is that Gat No.933 is reserved for library. It is contended that the letters of the petitioner dated 06/10/1990, 30/04/1991, 03/04/1999 and 27/10/2011 are not in the form of a legal notice u/s 127 of The M.R.T.P. Act, 1966. It is, therefore, contended that the reservation does not lapse.
11. We have, with the assistance of the learned advocates for the respective sides, gone into the petition paper book and its annexures. The fact situation is writ large on the face of the record.
12. The Honble Apex Court in GirnarTraders Vs. State of Maharashtra, reported at 2007(7) S.C.C. 555 has laid down the Law and paragraph No.54 of the said judgment relevant to this case reads as under :
"54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owners property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corporation of Greater Bombay Case (supra). If the acquisition is left for a time immemorial in the hands of the concerned authority 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 subsection (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 land owner for his utilization as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for de-reservation 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 land owner for de-reservation. 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 merely for the purpose of seeking time so that Section 127 does not come into operation."
13. Paragraph Nos.56 and 57 of the GirnarTraders Case(supra), read thus :
œ56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilize the land for the purpose it is reserved in the plan in a given time or let the owner utilize 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 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.?
œ57. 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. Subsection (2) of Section 126 leaves it open to the State Government either to permit the acquisition or not to permit, 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.?
14. In the case of ShrirampurMunicipal Council Vs. Satyabhamabai Bhimaji Dawkher, reported at (2013) 5 SCC 627, the Apex Court has observed in para Nos. 41, 42 and 43 as under :
œ41. In our view, there is no conflict between the judgments of the two-Judge Bench in Hakimwadi Tenants Association (supra) and the majority judgment in Girnar Traders (II). In both the cases, this Court emphasized that if any private land is shown as reserved, allotted or designated for any purpose specified in any Development plan, the same may be acquired within ten years either by agreement or by following the procedure prescribed under the 1894 Act, and if proceedings for the acquisition of land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of the 1966 Act, then the land shall be deemed to have been released from such reservation, allotment, etc. In Hakimwadi Tenants Association (supra), notice under Section 127 was issued on 1.7.1977. The State Government did not take any steps for the acquisition of land within next six months. The learned Single Judge and the Division Bench of the High Court held that in terms of second part of Section 127, the reservation of land for recreation ground will be deemed to have lapsed. This Court unequivocally approved the view expressed by the High Court (paragraphs 10 and 11). The majority judgment in Girnar Traders (II) appears to suggest that the question considered and decided in Hakimwadi Tenants Association was slightly different, but having carefully gone through paragraphs 10 and 11 of the first judgment, we are convinced that the question involving interpretation of Section 127 was very much considered and decided by the two-Judge Bench in favour of the landowner and there is no conflict in the opinion expressed in the two judgments.
42. We are further of the view that the majority in Girnar Traders (II) had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government.
43. The expression œno steps as aforesaid? used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphades interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution.?
15. In the case of State of Maharashtra Vs. Bhakti Vedanta Book Trust and others reported at 2013(5) Mh. L.J. 195, the Apex Court has concluded that when a private land, reserved in the development plan, is not acquired within 10 years, either by agreement or by following the procedure prescribed under Land Acquisition Act and if proceedings for acquisition of the land are not commenced within that period and a further period of 6 months from the date of service of notice u/s 127 of the M.R.T.P. Act, 1966, the reservation will be deemed to have lapsed and the land will be available for development by the owner.
16. Section 124 of the MRTP Act clearly provides for a particular land being reserved, allotted or designated for a specified purpose as per the plan and such a land has to be acquired within a period of ten years from the date on which the final original plan or the final development plan comes into force. If such proceedings for acquisition of the land as per the scheme provided under the MRTP Act are not undertaken for achieving the object enshrined under the said Act, the reservation is deemed to have lapsed after ten years.
17. Pursuant to the effective steps under Section 127 of the MRTP Act having been undertaken by the owner of the land, such land would be deemed to have been released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise is permissible in the case of the adjacent land under the relevant Act.
18. The twelve months ( as amended by Maharashtra Act XVI of 2009 dated 25th June, 2009 ) time frame provided under the Act from the date of receipt of the purchase notice under Section 127 bind the acquiring body to take steps "of acquisition" and not "towards acquisition". It is a step of acquisition of land and not a step for acquisition of land. Failure of the authority to take steps which results 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.
19. The Apex Court, in the case of State of Maharashtra V. Bhakti Vedanta Book Trust and others (cited supra) has reiterated the view expressed by it in paragraph No.54 of the Girnar Traders case (supra).
20. We find from the contentions of the respondents that an explanation has been put forth for denying the rights of the petitioner. As has been expressed by the Division Bench of our Court in the case of GanpatShripat Gotre Vs. State of Maharashtra and others, (Writ Petition No.1143 of 2011 decided on 06/08/2013), the respondents are attempting to merely create a picture of acting seriously for acquisition of the concerned land, when factually steps taken by the Municipal Council Faizpur do not inspire us to conclude that they had acted seriously for acquiring the land within the time frame set out u/s 127 of the M.R.T.P. Act, 1966. Such contentions deserve no consideration in view of the judgments referred above and also in view of the judgment of the Apex Court in Bhavnagar University Vs. Palitana Sugar Mill Private Limited and others, reported at AIR 2003 SC 511.
21. The Division Bench of our Court has also taken a similar view in the matters of BaburaoDhondiba Salokhe Vs. Kolhapur Municipal Corporation, Kolhapur and another, reported in 2003(3) Mh. L.J. 820 as well as in the matter of VijaykumarS/o Motilal Hirakhanwala Vs. State of Maharashtra and others (Writ Petition No.11759 of 2010 decided on 17th February, 2011).
22. It is, therefore, Trite law that pursuant to a notice u/s 127 of The M.R.T.P. Act, 1966, the reservation would lapse for having not taken effective steps and the acquisition would not be revived merely by passing a resolution. In other words, proposals need to be moved by the Acquiring Body effectively and steps in that direction are required to be taken. Rights accrued to the owner of the land would not be withered away by such superficial actions of the respondents.
23. In the result, this writ petition is allowed. It is declared that the reservation, designation or allotment provided under the development plan of respondent no.2 Faizpur Municipal Council in respect of subject property shall get lapsed and the subject property shall be available to the petitioner for the purpose of development or otherwise, as is permissible in the case of the adjacent land under the relevant plan.
24. The State Government is hereby directed to take steps and notify lapsing of reservation in the official gazette, as expeditiously as possible, and preferably within six months from today.
25. Rule is, therefore, made absolute with no order as to costs.