TMI Blog2013 (4) TMI 965X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sagar, Vinay Navare, Satyajeet Kumar, Abha R. Sharma, Manish Pitale, Chander Shekhar Ashri, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha, Karan Kanwal, Suchitra Atul Chitale, Sudhanshu S. Choudhari, Rajshri Dubey, Narender Kumar, Pravesh Thakur, Viraj Kadam, Sidaarrth Shinde, D.M. Nargolkar, M.Y. Deshmukh, Abhijeet B. Kale, Yatin M. Jagtap, Shrikant R. Deshmukh, Shivaji M. Jadhav, Shankar Chillarge and Asha Gopalan Nair, Advs. JUDGMENT G.S. Singhvi, J. 1. Leave granted. 2. The question which arises for consideration in these appeals is whether reservation of the parcels of land owned by the Respondents in the Regional plans/Development plans prepared under the Maharashtra Regional and Town Planning Act, 1966 (for short, 'the 1966 Act') will be deemed to have lapsed because the same were not acquired or no steps were commenced in that respect within six months of the service of notice under Section 127 of that Act. 3. For the sake of convenience, we shall first notice the facts from the record of the appeal arising out of SLP(C) No. 9934/2009. 3.1 Respondent Nos. 1 to 5 are the owners in possession of the land comprised in Gat Nos. 44/1/2 and 44/1/4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otice you are being notified that, in case of your failure to take suitable action to acquire the said land within 6 months of the receipt of the said notice the land under reservation in Gat No. 44 shall become free from reservation. Please take note. The said notice is being issued in this behalf. 3.4 The notice issued by Respondent Nos. 1 to 5 was considered in the meeting of the General Body of the Appellant held on 30.8.2003 and the following resolution was passed: It is seen from the note submitted on the above subject that the land bearing Gat No. 44, CTS No. 2141 (part) within the Municipal Limit is owned by Smt. Satyabhamabai Davkhar, out of which 4815 sq.mtr. of area is reserved for Play Ground, vide reservation No. 40 and for Primary School Play Ground, vide reservation No. 41. Since the Municipal Council has not acquired the land under said reservations after 10 years of sanction of Development Plan, the land owner Smt. Davkhar has served the purchase notice under Section 127 of Maharastra Regional and Town Planning Act, 1966. The above referred lands are included in Town Planning Scheme No. IV. But the above reservations are not included in Draft sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bhamabai v. State of Maharashtra and Ors., (2008) 1 ALL MR 399 as also the judgment of this Court in Girnar Traders (II) and held that reservation of the land in question will be deemed to have lapsed because no steps were taken for acquisition thereof within six months of the receipt of purchase notice. The High Court also directed the Appellant to de-reserve the land so as to enable the Respondents to develop the same. 4. We may now briefly notice the facts from the other appeals. Appeal arising out of SLP(C) No. 8756/2009 4.1 Respondent Nos. 1 to 4 are the owners in possession of land comprised in Gat No. 92 (part) admeasuring 45,983 square meters situated at Shirasgaon within the municipal boundary of the Appellant. In the Development plan, 6,360 square meters land belonging to Respondent Nos. 1 to 4 was shown as reserved for playground. They issued purchase notice dated 20.6.2002 under Section 127 of the 1966 Act. Thereafter, the General Body of the Appellant passed resolution dated 3.8.2002 for sending a proposal to the District Collector for initiation of the acquisition proceedings. After six months, the Appellant sent detailed proposal dated 6.12.2002 to the Dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Municipal Corporation of Greater Mumbai (MCGM) under Section 127 of the 1966 Act. There is some dispute about receipt of the notice by the competent authority but it is an admitted position that vide letter dated 15.12.2005, the Municipal Commissioner of MCGM asked the Improvement Committee to initiate the acquisition proceedings. On 3.6.2006, the Planning Authority submitted a proposal to the State Government for taking action in accordance with Section 126(1)(c) of the 1966 Act. The State Government issued notification dated 19.1.2007 under Section 126(2) and (4) of the 1966 Act read with Section 6 of the 1894 Act. 6.3 Writ Petition No. 2303/2007 filed by Respondent Nos. 1 and 2 for quashing Notification dated 19.1.2007 was allowed by the High Court by relying upon the judgment of this Court in Girnar Traders (II). Appeal arising out of SLP(C) No. 34943/2012 7.1 In the Development plan sanctioned for Pune Municipal Corporation, which was notified on 5.1.1997, Plot No. 59, Gat No. 17 situated at Kondhwa Khurd, Pune admeasuring 4,400 square meters was shown as reserved for construction of children's park. 7.2 Respondent - Sahyadri Land Development Corporation, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of this appeal are substantially similar to that of the appeal arising out of SLP (C) No. 36117/2012 except that the plot owned by Respondent Nos. 1 to 5 is CST No. 1134, Sadashiv Peth, Pune admeasuring 567.72 square meters whereas the plot which is subject matter of the other SLP is CST No. 1135, Sadashiv Peth, Pune. The reservation of CST No. 1134 was for children's playground. The High Court allowed Writ Petition No. 9895/2011 filed by Respondent Nos. 1 to 5 on the ground that the land had not been acquired within six months of the receipt of purchase notice issued under Section 127 of the 1966 Act. Appeal arising out of SLP(C) No. 25742/2012 10. In the Development plan of Shrirampur (part) (revised), land bearing Gat No. 108 (74 Are) belonging to Respondent No. 1 was shown as reserved for garden and he was given alternative plot in Gat No. 92 (part). However, that Gat was also reserved for playground/stadium. After nine years, the State Government in exercise of the power vested in it under Section 86(1) of the 1966 Act sanctioned the Town Planning Scheme. Respondent No. 1 issued notice dated 5.1.2002 under Section 127 of the 1966 Act. The same was received i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the plain language of Section 127 of the 1966 Act and the earlier judgment in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association, 1988 (Supp) SCC 55. Learned senior counsel then referred to the order reported as Poona Timber Merchants and Saw Mill Owners Association v. State of Maharashtra and Ors., 2008 (4) SCALE 737 and other orders by which directions were given for hearing of some of the special leave petitions along with Civil Appeal No. 3703/2003 and Civil Appeal No. 3922/2007 and argued that in view of the judgment of the Constitution Bench in Girnar Traders v. State of Maharashtra, (2011) 3 SCC 1 (hereinafter referred to as 'Girnar Traders (III)'), the question arising in these appeals should be referred to a Constitution Bench. Shri Naphade further argued that the reservation of the Respondents' land cannot be treated to have lapsed on the expiry of six months from the date of receipt of purchase notices because in the meanwhile, the Appellants had passed resolutions and sent communications to the District Collector to commence the acquisition proceedings and this amounted to taking of steps within the meaning of Section 127 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perform its duty in accordance with Section 21(1) or (2), an officer appointed by the State Government shall do the needful and recover the cost thereof from the funds of the Planning Authority. Section 22 enumerates the contents of a Development plan. Clauses (b) and (c) of that section read as under: 22. Contents of Development Plan. - A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also indicate the manner in which the development of land therein shall be carried out. In particular, it shall provide so far as may be necessary for all or any of the following matters, that is to say,- (b) proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, or public assembly, museums, art galleries, religious buildings and government and other public buildings as may from time to time be approved by the State Government; (c) proposals for designation of areas for open spaces, playgrounds, stadium ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment before the commencement of the 1966 Act shall be deemed to be a final Development plan. Section 37 contains the procedure for modification of the final Development plan. Section 38 lays down that the Development plan should be revised at least once in 20 years. If the State Government so directs, the Development plan can be revised even before the expiry of 20 years. Chapter IV of the 1966 Act (Sections 43 to 58) contains provisions relating to control of development and use of land included in the Development plans. Chapter V (Sections 59 to 112) deals with Town Planning Schemes and Chapter VII (Sections 125 to 129) contains provisions for compulsory acquisition of land needed for a Regional plan, Development plan or Town Planning Scheme. 16. Section 126, which provides for the acquisition of land required or reserved for any of the public purposes specified in any plan or scheme prepared under the 1966 Act and Section 127, which envisages lapsing of reservation in certain contingencies read as under: Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a declaration duly made under the said section: Provided that, subject to the provisions of Sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be. (3) On publication of a declaration under the said Section 6, the Collector shall proceed to take order for the acquisition of the land under the 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, or the plan for area or areas for comprehensive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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. Analysis of Sections 126 and 127 of the 1966 Act 17. Section 126(1) lays down that when any land is required or reserved for any of the public purposes specified in any plan or scheme, the Planning Authority, Development Authority, or any Appropriate Authority can acquire the same by an agreement by paying an agreed amount, or by granting the landowner or the lessee Floor Space Index or Transferable Development Rights in lieu of the area of land surrendered free of cost and free from all encumbrances and further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenities on the surrendered land at his cost, or by making an application to the State Government for acquiring such land under the 1894 Act. Once the land is acquired by an agreement under Section 126(1)(a) or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under Section 126(1)(b) or under the 1894 Act, the same vests in the Planning Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served for recreation ground. The final Development plan was made effective from 7.2.1967. However, no action was taken for the acquisition of land. The owner served purchase notice dated 1.7.1977 on the Commissioner of the Corporation. After about six months, the Corporation passed resolution dated 10.1.1978 for the acquisition of land and sent an application to the State Government for taking necessary steps. Thereupon the State Government issued Notification dated 7.4.1978 under Section 6 of the 1894 Act. The writ petition filed by Dr. Hakimwadi Tenants' Association for quashing the notification was allowed by the learned Single Judge of the Bombay High Court, who held that the acquisition proceedings commenced by the State Government under Section 126(2) at the instance of the Planning Authority were not valid because steps were not taken for the acquisition of land under Section 126(1) of the 1966 Act read with Section 6 of the 1894 Act within the prescribed time. The learned Single Judge observed that the period of six months prescribed under Section 127 began to run from the date of service of purchase notice and the Corporation had to take steps to acquire the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound lapsed and consequently, the impugned notification dated April 7, 1978 under Section 6 of the Land Acquisition Act issued by the State Government must be struck down as a nullity. 11. Section 127 of the Act is a part of the law for acquisition of lands required for public purposes, namely, for implementation of schemes of town planning. The statutory bar created by Section 127 providing that reservation of land under a development scheme shall lapse if no steps are taken for acquisition of land within a period of six months from the date of service of the purchase notice, is an integral part of the machinery created by which acquisition of land takes place. The word aforesaid in the collocation of the words no steps as aforesaid are commenced for its acquisition obviously refer to the steps contemplated by Section 126(1). The effect of a declaration by the State Government under Sub-section (2) thereof, if it is satisfied that the land is required for the implementation of a regional plan, development plan or any other town planning scheme, followed by the requisite declaration to that effect in the official Gazette, in the manner provided by Section 6 of the Land Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The belonging to S.P. Building Corporation was notified as open space and children's park . After coming into force of the 1966 Act, the landowners served notice under Section 127 of that Act for de-reservation of the land. Two similar notices were issued by S.P. Building Corporation on 18.10.2000 and 15.3.2002. after about eight months the State Government issued notification dated 20.11.2002 under Section 126(2) and (4) of the 1966 Act read with Section 6 of the 1894 Act. Writ Petition No. 353/2005 filed by S.P. Building Corporation questioning the notification issued by the State Government was dismissed by the Division Bench of the High Court by observing that Resolution dated 9.9.2002 passed by the Improvement Committee of the Municipal Corporation would constitute a step as contemplated by Section 127 of the 1966 Act. The Division Bench further held that Section 11A of the 1894 Act, as amended, is not applicable to the proceedings initiated for the acquisition of land under the 1966 Act. Civil Appeal No. 3922/2007 filed by S.P. Building Corporation was decided by the three Judge Bench along with Civil Appeal No. 3703/2003 - Girnar Traders v. State of Maharashtra. Speakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan for which the adjacent lands are permitted to be utilised. Emphasis supplied) Naolekar, J. then referred to the judgment in Dr. Hakimwadi Tenants' Association (supra) and proceeded to observed: 52...Thus, after perusing the judgment in Municipal Corpn. of Greater Bombay case we have found that the question for consideration before the Court in Municipal Corpn. of Greater Bombay case has reference to first step required to be taken by the owner after lapse of 10 years' period without any step taken by the authority for acquisition of land, whereby the owners of the land served the notice for dereservation of the land. The Court was not called upon to decide the case on the substantial step, namely, the step taken by the authority within six months of service of notice by the owners for dereservation of their land which is second step required to be taken by the authority after service of notice. 53. The observations of this Court regarding the linking of word aforesaid from the wordings no steps as aforesaid are commenced for its acquisition of Section 127 with the steps taken by the competent authority for acquisition of land as provided under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x 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 merely for the purpose of seeking time so that Section 127 does not come into operation. 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 59. There is another aspect of the matter. If we read Section 126 of the MRTP Act and the words used therein are given the verbatim meaning, then the steps commenced for acquisition of the land would not include making of an application under Section 126(1)(c) or the declaration which is to be made by the State Government under Sub-section (2) of Section 126 of the MRTP Act. 60. On a conjoint reading of Sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the authorities under Clause (c) of Section 126(1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to Sub-section (2) of Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms 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 Dr. Hakimwadi Tenants' Association (supra) 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. 21. 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 Plannin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evelopment plan and the same is not acquired by agreement within 10 years from the date of enforcement of such plan or the declaration under Sub-section (2) or (4) of Section 126 of the 1966 Act is not published in the Official Gazette within that period, the owner or any person interested in the land may serve notice upon the Planning Authority etc. and if within 12 months of the service of notice the land is not acquired or no steps, as aforesaid are commenced for its acquisition, the reservation etc. will automatically lapse. All this is evinced from paragraphs 125-129, 132-134, 136 and 138 of the Constitution Bench judgment, which are extracted below: 125. In terms of Section 126(1)(c) of the MRTP Act, the application to the State Government has to be made for acquiring such land under the Land Acquisition Act. Such land refers to the lands which are required only under the provisions of the MRTP Act. Section 126(2) refers to Section 6 of the Land Acquisition Act only for the purpose of format in which the declaration has to be made. In terms of Section 126(3), on publication of the declaration, the Collector shall proceed to take order for acquisition of the land under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Land Acquisition Act. The expression under the said Act in Section 126(3) of the MRTP Act is sufficient indication that it is a legislation by reference and, thus, all subsequent amendments would apply. It was also contended that on a bare reading of Sections 126 and 127 of the MRTP Act, it is clear that it does not exclude the application of Section 11-A of the Land Acquisition Act. 128. We certainly are not impressed by this argument advanced on behalf of the Appellants. Firstly, if we examine the acquisition proceedings under the Land Acquisition Act, they commence only when a notification under Section 4 of the Land Acquisition Act is issued. Section 5-A of the Central Act makes it incumbent upon the authorities to invite objections and decide the same before issuing declaration under Section 6 of the Land Acquisition Act. All these proceedings have specifically been given a goby under the MRTP Act, where notification is to be issued under Section 126(2) in the manner provided under Section 6 of the Land Acquisition Act. Secondly, specific reference to various sections of the Land Acquisition Act in the MRTP Act necessarily implies exclusion of the provisions not specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) or (4) of Section 126 of the MRTP Act is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice upon such authority to that effect and if within 12 months from the date of 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 the land would become available to the owner for the purposes of development. The defaults, their consequences and even exceptions thereto have been specifically stated in the State Act. For a period of 11 years, the land would remain under reservation or designation, as the case may be, in terms of Section 127 of the MRTP Act (10 years + notice period). 134. However, if the provisions of Section 11-A of the Central Act were permitted to punctuate a scheme of the State Act and the award is not made within two years from the date of declaration under Section 6 of the Central Act, the acquisition proceedings will lapse which will frustrate the rights of the State as well as the scheme contemplated under Section 126 as well as Section 127 of the State ..... X X X X Extracts X X X X X X X X Extracts X X X X
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