Sheth and Bharmal (Firm) Vs. Municipal Administrator, Municipal Corporation of Greater Bombay and ors. - Court Judgment

S.M. Daud, J.

1. These two petitions involving the same parties and relating to the same subject matter can be disposed of by a common judgment.

2. Petitioner is a partnership firm registered under the Partnership Act carrying on business as Builders and Contractors. It claims to be the owner of the property bearing Survey No. 232, C.T.S. No. 622 (1 to 8) at James Beach Road, Kanjur Marg, Bhandup (West), Bombay 400078. It claims to have purchased the said property from one Mr. Prabhavati Sanghani under an Indenture of Conveyance dated 24th September, 1979. In the year 1964, the Government of Maharashtra sanctioned the Development Plan for Greater Bombay Region. Under that Plan, a portion measuring 3619.95 square meters from out of the above land was reserved for various public purposes as detailed in para 6 of the Writ Petition No. 316 of 1985. Till about 1981 no steps were taken either by the Planning Authority which in this case is the Bombay Municipal Corporation, hereinafter to be referred to as the 'BMC' or the petitioner's predecessor-in-title Mr. Sanghani. In 1981 a number of communications were addressed to the State Government by M/s. S.S. Joshi & Associates. Architects purporting to act on behalf of the petitioners. The object of these representations was to get an order for dereservation of the entire reserved area or the maximum that could be so dereserved. In 1982, the petitioners' Architects made a similar request to the Planning Authority and the State Government. Some information was called for and furnished. In 1983, the Government informed the petitioners' solicitors that it was not possible to accede to the request for dereservation inasmuch as the acquisition proceedings had already been initiated for acquisition of the land by the BMC for the purpose specified in the Development Plan. By a communication dated 18th June, 1984, the petitioners' Architects submitted objections and suggestions to the Planning Authority. On 16th November, 1984 and 2nd January, 1985, the office of the District Inspector of Land Records intimated the petitioners and the BMC of an intended joint survey of the land as a preliminary to the acquisition thereof, for a Municipal Primary School and playground. To the first communication, petitioner gave a reply on 26th November, 1984 pointing out that no decision had been taken by the Planning Authority to the objection and suggestions aforementioned and that until that was done, further steps preparatory to the acquisition could not be taken. The re-scheduling of the survey vide the letter of 2nd January, 1985, made it clear that the BMC and the State Government were not to be diverted. Petitioner moved this Court and obtained an ad interim relief which had the effect of preventing the DILR from taking steps pursuant to the notice dated 16th November, 1984 and 2nd January, 1985. On 4th August, 1986, on the application of the petitioners' Counsel, the aforementioned stay order was vacated.

3. The two petitions complain of many lapses by the BMC and the State Government which it is said, rendered illegal the proposal to acquire the land. The reservations made in the Development Plan of 1964 had lapsed because action as required by section 126 and 127 of the Maharashtra Regional Town Planning Act, 1966 (MRTP Act or the Act) had not been taken. Petitioners sought an order restraining the State Government from making a declaration under the provisions of section 126 of the MRTP Act qua the petition-land. In Writ Petition No. 1757 of 1986, the cause of action is the alleged disregarding of the objections and suggestions made by the petitioners by their Architect's letter dated 18 June, 1984-the disregard being evident from the joint survey notices dated 16 November, 1984 and 2 January, 1985. Until a ruling had been given on the objections and suggestions, the respondents had no right to proceed with the proposal for acquisition. As a matter of fact, having regard to their letter dated 13th June, 1985, on which no action had been taken within the stipulated period of 6 months, the petitioner's had become entitled to a release from reservations as contemplated by section 127 of the MRTP Act. They therefore sought a declaration that the reservations made for the location of a Primary School and a playground stood lapsed and that the property stood reverted free of reservation to the petitioners.

4. Respondents have filed separate returns, but the common stand taken by them may be stated thus : The 1964 Development plan designated diverse portions of the petition land for various purposes. The Development Plan had gone through the requisit stages and was eventually sanctioned under section 31 of the Act. Later on, the reservations were curtailed and in 1981, the petition land was reserved for a Primary School and a play-gound. In 1981 by a communication dated 21st April, 1981 the BMC had written to the State Government to initiate proceedings for acquisition of the area designated for Primary School and play-ground. Petitioners from the very beginning adopted an obstructive attitude. The acquisition proposal got stuck up because of the failure of the petitioners to turn up for the joint survey and later by their obtaining an order staying the said survey. With some difficulty the stay order was got vacated. It was not correct to say that the petitioners had become entitled to a release order under section 127 of the Act. This was because the proceedings for the acquisition had been commenced by virture of the application for acquisition moved by the BMC as far back as 1981. The petitions were without substance and deserved to be dismissed.

5. The debate in these petitions has ranged far and wide. It will not be necessary to deal with all the contentions raised, for which reason I propose to restrict myself to the petitioners contention based upon sections 126 and 127 of the Act. It was argued that the reservation or designation made in the 1964 Development Plan had lapsed. This was because no action had been taken within 10 years from the date on which the final Development Plan came into force in 1964. Petitioners had given the requisite notice on 13th June, 1985. After having given such a notice, it waited for the prescribed six months' period but to no avail. Therefore, as required by section 127 of the Act the reservations or designation must be deemed to have lapsed. In reply, it is argued that in 1981 itself the BMC had given an application as required by section 126(1) of the Act to move the State Government for acquiring the land under the land acquisition. For one reason or the other effective steps on the application could be taken only in 1984-85. This also was frustrated by the petitioners obtaining an interim injunction against the carrying out of the survey by the DILR. The deemed lapse release could not take effect when an application under section 126(1) had been standing of the position, it will be necessary to set out the material portions from sections 126 and 127 of the Act :---

'126. (1) When after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, any land 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 113(A), acquire the land) either by agreement or make an application to the State Government for acquiring such land under the Land Acquisition Act, 1894.

(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if State Government (except in cases falling under section 49 and except as provided in section 113(A) itself is of opinion) that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 6 of the Land Acquisition Act, 1894, in respect of the said land. The declaration so published shall, notwithstanding anything contained in this Act, be deemed to be a declaration duty made under the said section;

Provided that no such declaration shall be made after the expiry of three years form the date of publication of the draft Regional plan, Development plan or any other plan.

(3) On publication of a declaration under the said section 6, the Collector shall proceed to take order for the acquisition of the said land under said Act, and the provisions of that Act shall apply to the acquisition of the said land, with the modification that the market value of the land shall be---

(i) Where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town.

(ii) where the land is acquired for the purposes of a Special Planning Authority, the market value prevailing on the date of publication of the notification of the area as an undeveloped area; and

(iii) In any other case the market value on the date of publication of the interim development plan, the draft development plan of the plan for the area or areas for comprehensive development, whichever is earlier, or as the case may be, the date of publication of the draft town planning scheme :

Provided that, nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972 :

Provided further that, for the purpose of Clause (ii) of this sub-section, the market value in respect of land included in any undeveloped area notified under-section (1) of section 40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972, shall be the market value prevailing on the date of such commencement.

(4) If a declaration is not made within the period referred to in sub-section (2) or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1970, the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 1894, in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette made for acquiring of the land afresh.

127. 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.

Counsel for the B.M.C. Contends that by making an application under section 126(1) his clients had initiated 'proceedings for the acquisition of such land under this Act' contemplated by the first part of section 127. Therefore, the second part viz. intimations and consequences of inaction provided by the second part of the section, did not come into operation. Mr. Paranjape, submits that when the first part of section 127 speaks of 'proceedings for acquisition of such land under this Act', if contemplates not a mere application, but the issue of a declaration under section 126(2) and further steps provided by the remaining sub sections of section 126. A different interpretation, according to learned Counsel, would be unreasonable as it would amount to conferring a licence upon the Planning Authority and the State Government to keep the land under reservation and designation without acquiring it, thus subjection the owner of the land to uncertainly and irreparable loss. The object of section 127 was to check the indolence and sloth inherent in any administration. The object of the section 127 was to put the administration on the alert so that it could take corrective measure within six months from the date of service of the notice of failure to have taken the requisite steps within 10 years, and either repair the omission or enable the owner to secure the benefit of a deemed lapse or dereservation. This argument cannot be accepted as it runs counter to the plain words of section 127 . When section 127 in its first part speaks of 'proceedings for the acquisition of such land under this Act.' It cannot be said to exclude the application which the Planning Authority has to make to the State Government vide section 126(1) of the Act. After all, as section 126(1) itself shows where the Planning Authority cannot acquire the land by agreement, it has to make an application to the State Government for acquiring such land under the Land Acquisition Act of 1894. Section 126 appears in Chapter VII under the heading 'Land Acquisition' and the marginal note to the section indicates that it pertains to 'acquisition of land required for public purposes specified in plans'. Therefore, all steps mentioned in this chapter, in particular, section. 126 will be taken to comprise the 'proceedings for acquisition of land under this Act 'spoken of by section 127. To read these words as restricted to effective steps under the Land Acquisition Act commencing with a declaration under section 6 thereof, would be to interpose words not appearing in the section. Admittedly, an application for acquisition had been moved and the mere fact that the section 6 notification had not been issued, did not have the affect of creating conditions for the petitioners to seek a release from reservation or lapse from designation, as is the object of these petitions. The deemed lapse or release from reservation occurs only when there has been total inaction for 10 years and despite intimation of this inaction, the Planning Authority etc., take no steps within 6 months from the service of the notice. Once a step in the proceedings for acquisition of the land under the Act is taken. It is not permissible to go to the latter part of the section.

6. It was next contended that no declaration under the first proviso to section 126(2) had been made within 3 years. Therefore, the right to act upon the application moved by the petitioners did not survive. The real purpose of the amendment made to section 126 vide Maharashtra Act 14 of 1971, whereunder the proviso was introduced is best explained in the Statement of Objects and Reasons given to explain the Bill which brought about the amendment proposed thereunder. Explaining the changes in section 126, that Statement recited :

'Under section 126(3) of the Act, the market value payable in respect of acquisition of land is the market value prevailing on the date of the notification designating an area as the site for new town or the publication of the draft Development Plan or draft Town Planning Scheme. It has been noticed that in many cases there is an interval of several years before the date of publication of a draft Development Plan and the date of notification under section 126. It is therefore, proposed that no declaration for acquiring the land shall be made after the expiry of three years from the date of publication of the plan etc. and that the market value shall be as on the date of such publication. This is in line now with the provisions of the Land Acquisition Act, 1894. Provision is also made for making a fresh declaration in cases where such declaration has not been made with in such period; but in such cases the market value shall be the one on the date of such fresh declaration.'

From the above it is clear that the object of the provision was to furnish a date-nexus with the mode for ascertainment of compensation payable to the owner, rather than creating a fetter on the power of the State Government to acquire the property. Therefore, the declaration claimed by the petitioners in consequence of the alleged inaction of the Planning Authority for 10 years succeeding the coming into force of the Development Plan, cannot be granted.

7. The next question is whether the petitioners are entitled to any relief. Admittedly the Development Plan of 1964 is under revision. The process of revision has begun and has not yet been completed, in the sense of the revised draft plan being accorded the sanction prescribed by section 38 read with section 31 of the Act. The Planning Authority considered the objections and suggestions preferred by the petitioners and has recommended their rejections. According to the BMC, the Planning Authority has approved the rejection. However, the revised draft plan has yet to receive the sanction of the State Government. It was contended that merely because the revision is not completed, does not mean that the existing Development Plan is obliterated or been placed in abeyance. It continues to be in force and actions began thereunder, will continue. That the revision has not been competed will not affect the actions taken. Petitioners contend the contrary, arguing that the process of revision until completed interdicts a process of acquisition if one be pending to implement a reservation or designation made under the Development Plan. Unless such a view is taken, the very purpose of providing for a revision would be nullified. Counsel for the B.M.C. argues that there is nothing in the Act to indicate that pending a revision , the operation of the preceding Development Plan is stayed, Section 38 of the Act which deals with revisions of a Development Plan has this to say :---

'38 At least once in ten years from the date on which a Development plan has come into operation, and where a Development plan is sanctioned in parts, then at least once in ten years from the date on which the last part has come into operation, a Planning Authority may and shall at any time when so directed by the State Government, revise the Development Plan either wholly, or the parts separately after carrying out, if necessary, a fresh survey and preparing an existing land use map of the area within its jurisdiction, and the provisions of sections 22, 23, 24, 25, 26, 27, 28, 29, 30 and 31 shall, so far as they can be made applicable, apply in respect of such revision of the Development plan'.

The various sections mentioned above from part of Chapter III which is titled 'Development Plan' and has the following sub titles :

(a) Preparation, submission and sanction to Development Plan.

(b) Procedure to be followed in preparing and sanctioning Development Plans.

These read along with section 38. Make it clear that the revised plan will cease to be a draft and become a revised Development Plan only after sanction is accorded as required by section 31. The fact that the Planning Authority and the Planning Committee have rejected the objections and suggestions raised by the petitioners, does not preclude the State Government from bringing to bear upon subject of its independent powers. Section 31 requires the State Government to take into consideration various factors. One of them being the inadvisability of the Planning Authority's excessive ambitious in disregard of its resources Planning Authority's excessive ambitions in disregard of its resources position. Section 31(5) is an indication to this effect. Counsel for the BMC argues about the non-existence of a power to stay acquisition proceedings because of the pendency of a revision of the Development Plan. In clear terms there appears to be no provision in the Act staying the operation of the Development Plan, when it is under revision. But something of this nature will have to be read into the Act, unless the process of revision prescribed by section 38 is to be reduced to a mere formality. One cannot conceive of the legislature providing a for a revision and at the same time permitting the Planning and Development Authorities to go ahead with acquisitions regardless of the outcome of the objections which have to be taken into consideration before according sanction to the revised draft plan. This does not mean that the pending acquisition proceedings will lapse or that steps already taken, will all stand voided. The Planning Authority and the Government would go ahead with completion of formalities prescribed by section 126 of the Act, except for the making of an Award, extinction of the owner's title and evicting the said owner from the acquired land it is precisely that, and only that, which I propose to stay in the present case. Hence the order :

Rule partly allowed, in that the declaration of the award extinguishing the petitioner's title, evicting if from the land and entiling it to the compensation, shall not take effect until the revised plan is sanctioned under section 38 read with section 31 of the Act. Rule to this limited extent made absolute, with parties being left to bear their own costs in both the petitions.