Bombay High Court
Shri. Shantaram Shankar Jamsandekar ... vs The State Of Maharashtra, Through ... on 13 October, 2014
Author: G.S.Kulkarni
Bench: A.S.Oka, G.S.Kulkarni
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wp313.a.w.pil41.10.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.313 OF 2012
1. Shri Shantaram Shankar Jamsandekar
aged 80 years, Occupation: Service'
R/o 211-D, Ganesh Bhavan, Papachi
Tikati, Kolhapur.
2. Shri Vinod Shankar Jamsandekar
Aged 63 years, Occupation: Service
R/o211-D, GaneshBhavan,
Papachi Tikati, Kolhapur.
3. Shri Ashok Shankar Jamsandekar
Aged 72 years, Occupation: Service
R/o 211-D, Ganesh Bhavan, Papachi
Tikati, Kolhapur
4.Shri Arun Sridhar Jamsandekar
Aged 72 years,Occupation: Service
R/o 2094-E/Ward, Vikram Nagar
Kolhapur.
5. Shri Kishor Sridhar Jamsandekar
Aged 67 years, Occupation: Retired
R/o 2094-E Ward,Vikram Nagar,
Kolhapur.
6. Shri Dilip Sridhar Jamsandekar
Aged 60 years, Occupation: Nil
R/o 2094-E Ward,Vikram Nagar
Kolhapur.
7. Smt Surekha Suresh Jamsandekar
Aged Adult, Occupation: Household
R/o 2094/E-Ward, Vikram Nagar
Kolhapur.
8. Ms.Sayali Suresh Jamsandekar
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Aged 26 years, Occupation: Household
R/o 2094-E Ward, Vikram Nagar
Kolhapur
9. Ms.Pranjal Suresh Jamsandekar
Aged 25 years Occupation: Household
R/o 2094-E Ward, Vikram Nagar,
Kolhapur
10. Shri Sudharma Murlidhar Jamsandekar
Aged 50 years, Occupation:Service'
R/o1156, E Ward, Manik Chambers
Rajarampuri, Kolhapur.
11. Sashikant Anant Jamsandekar
Aged 76 years, Occupation: Nil
R/o 372 B-1 14th Lane,
Rajaramopuri,Kolhapur.
12. Shri Ramesh Anant Jamsandekar
Aged 73 years, Occupation: Nil
R/o Radhai Kajol Complex,
Jawahar Nagar, Kolhapur.
13. Shri Sudhin Pandit Jamsandekar
Aged 63 years, Occupation: Nil
R/o 113 F Ward, Shahupuri,
Kolhapur.
14. Shri Suhas Pandit Jamsandekar
Aged 60 years, Occupation: Nil
R/o 113,E Ward, Shahupuri,
Kolhapur.
15. Shri Rajan Pandit Jamsandekar
Aged 53 years, Occupation: Service
R/o 1789, E Ward, 1st Lane,
Kolhapur.
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Through their Power of Attorney holder
Shri.Rajshekhar Vikrupaksh Tambakhe
Aged 50 years, Occupation: Business
R/o Plot NO.23, Hari Om Nagar,
A Ward, Near Ambai Tank, Rankala
Kolhapur. ..... .. Petitioners
versus
1. The State of Maharashtra
through the Secretary, Urban Development
Mantralaya, Mumbai-400023.
2. The Director of Town Planning
Maharashtra State,Pune-411 001
3. Kolhapur Municipal Corporation
Kolhapur through its Commissioner
having office at Shivaji Chowk,
Kolhapur.
4. The Collector of Kolhapur
having office at Udyog Bhavan,Assembly
Road, Kolhapur. .. Respondents
WITH PUBLIC INTEREST LITIGATION NO.41 OF 2010
1.Pravin Dadasaheb Indulkar .. Petitioner
Aged 58years, Occupation: Social
Service,R/o 1959, E Ward, 11th Lane,
Rajarampuri,Kolhapur
Versus
1. State of Maharashtra
through Principal Secretary
Urban Development Department,
Mantralaya, Mumbai.
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2. Kolhapur Municipal Corporation
through the Commissioner,
KMC Building, C Ward, Kolhapur
3. Director, Town Planning,
Maharashtra Central Building, Pune
4. Assistant Director
Town Planning Office,
Bindu Chowk, Kolhapur .. Respondents
...
Mr.N.V. Bandiwadekar i/b Mr.Prashant Bhavake
for Petitioner in W.P .No.313/2012
Mr.R.P.Walvekar for Petitioner in PIL No.41/2010
Mr.V.P.Malvankar AGE 'A' Panel for Respondent
Nos.1,2, & 4 in W.P. No.313/2012 and for
Respondent Nos.1,3 & 4 in PIL No.41/2010
Mr.S.S. Patwardhan for Respondent No.3 in W.P.No.313/2012
CORAM: A.S.OKA & G.S.KULKARNI,JJ
JUDGMENT RESERVED ON: 26.8.2014
JUDGMENT PRONOUNCED ON: 13.10.2014
ORAL JUDGMENT (Per G.S.Kulkarni, J)
Both these petitions are heard together as the controversy in both these petitions concerns reservation in respect of land bearing R.S.No.779/2.
WRIT PETITION NO.313 OF 2012 ::: Downloaded on - 13/10/2014 23:49:13 ::: Rng 5 wp313.a.w.pil41.10.doc
1. By this Petition under Article 226 of the Constitution of India the petitioners pray for a direction that the reservation in respect of land bearing R.S.No.779/2, situate at B Ward, Kasba Karveer, Taluka and District Kolhapur being reservation Nos.250 and 251, in the second revised final development plan for Kolhapur, has lapsed as per the provisions of Section 127 (1) of the Maharashtra Regional Town Planning Act, 1966 (for short MRTP Act) and that the respondents be directed to permit the petitioner to develop the said land.
2. Petitioners nos.1 to 12 are the owners of land bearing R.S.No.779/1 situate at B Ward, Kasaba Karveer, Taluka and Distict Kolhapur and Petitioner nos. 13 to 15 are owners of survey No.779/2 (Both lands for short referred as "said lands"). Respondent no.1 by an order dated 18.2.1999 sanctioned the 2nd revised final development plan for Kolhapur city under Section 31 of the MRTP Act. In this development plan the said lands were reserved for "a garden" namely reservation No.251 and some area was reserved for a "hospital" being reservation No.250. The lands are in the nature of open and vacant lands and for the present there is no income or production from the said land to the petitioners. On account of ::: Downloaded on - 13/10/2014 23:49:13 ::: Rng 6 wp313.a.w.pil41.10.doc the reservation, the petitioners could not undertake development of the said lands as also they were not getting any consideration for sale as per the market rate.
3. It is the petitioner's case that the respondent no.3 (Kolhapur Municipal Corporation) was to develop these lands in the year 2003 and 2006. However, the respondent no.3 did not take any steps in that regard for acquisition of the said lands.
4. It is the petitioner's case that a period of ten years from the commencement of the development plan had already passed and that during this period the respondent no.3 did not take any steps to acquire the said lands. The petitioner therefore served a purchase notice dated 11.3.2010 on respondent no.3 alongwith the documents showing their title. The notice inter alia recorded the period for which the land was kept under reservation and that no steps for acquisition of the said lands were taken. The respondent no.3 Municipal Corporation which was the planning authority was called upon to acquire the lands within a period of one year from the date of receipt of the said notice failing which the ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 7 wp313.a.w.pil41.10.doc reservation would deem to have lapsed and the said lands would automatically come within residential zone. It is the petitioner's case that this notice was received by the respondent no.3 on 15.3.2010. Another notice dated 12.3.2010 was addressed by the petitioners to the respondent no.3. It is the petitioner's case that despite receipt of the purchase notice dated 11.3.2010 and 12.3.2010 the respondents failed to take any steps to acquire the said lands within a period of one year from the date of receipt of the purchase notice and hence the reservation had lapsed by operation of section 127 under the MRTP Act. The petitioners therefore addressed a letter dated 31.3.2011 to the respondent no.3 requesting for no objection certificate for development of the lands since the reservation had lapsed.
Petitioners state that however no decision was taken on the same by respondent no.3. The petitioners therefore, again submitted a representation dated 20.7.2011 requesting for issuance of a no objection certificate in favour of the petitioners in view of the reservation having lapsed. As no action was taken the petitioners made a further representations dated 9.9.2010 and 21.10.2010 reiterating their request for the issuance of a no objection certificate for development of the land.
The petitioners have ultimately filled the present Writ Petition.
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5. After filing of this writ petition the petitioners submitted an application dated 16.2.2012 to respondent no.3 under the provisions of the Right to Information Act, 2005 seeking information whether the office of the respondent no.3 had sent any proposal to the respondent no.1 for acquisition of the petitioner's land. A reply dated 17.2.2012 was issued to this application of the petitioners by the Information Officer of the respondent no.3, informing the petitioner that no proposal for acquisition of the lands was sent or forwarded to respondent nos.1 to 4. This fact is placed on record by the petitioners by filing an additional affidavit dated 26.2.2012. It is the petitioner's case that this reply received by them under the provisions of the Right to Information Act,2005 compounds the position that the reservation of the petitioner's land had lapsed.
6. On behalf of respondent no.3 an affidavit in reply dated 13.3.2012 of Mr.M.D.Rathod Assistant Director, Town Planning has been filed. This affidavit does not dispute that the lands in question were kept under reservation for the purpose of a hospital (Reservation No.250) and a garden (Reservation No.251) w.e.f. 1.2.2000. It is stated that the petitioners had applied for removal of the said two reservations and inclusion of the land in the residential zone and that these applications ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 9 wp313.a.w.pil41.10.doc were considered in the General Body of the respondent no.3. By a Resolution dated 20.1.2005 the General Body of the respondent no.3 resolved for removing of the said reservation and inclusion of these lands of the petitioners in the residential zone. It is stated that in terms of the resolution, a proposal for modification of the development plan under section 37 of the MRTP Act was undertaken, by inviting objections and suggestions from the public. Thereafter, a proposal dated 4.9.2007 was forwarded to the respondent no.1. It is stated that by an order dated 1.12.2008 the respondent no.1 had partly rejected the proposal initiated by respondent no.3 under section 37 of the MRTP Act. The respondent no.1 directed respondent no.3 to get 40% of the area of the land under reservation transferred from the petitioners from out of total land, by a registered sale deed at a nominal consideration of Re.1/- and that the respondent no.3 should obtain an undertaking from the petitioner that no TDR or FSI or any other consideration in lieu of such transfer shall be claimed by the petitioner as part of the said conveyance. It was further directed that such a sale deed be sent to the 1 st respondent, whereupon a final notification approving the modifications in respect of releasing balance 60% of the land will be issued. It is stated that thereafter by a ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 10 wp313.a.w.pil41.10.doc separate order dated 14.1.2009 respondent no.1 directed respondent no.3 to submit a fresh proposal under section 37 of the MRTP Act in terms of the said order dated 1.12.2008. It is stated that the petitioners after approving the said orders dated 1.12.2008, 14.1.2009 passed by the respondent no.1 had agreed in principle to submit to the order dated 1.12.2008 passed by the respondent no.1. It is stated that respondent no.3 had acted upon the directions of respondent no.1 for initiating process for modification of the development plan as per provisions of section 37 of the MRTP Act and that this proposal was approved by the General Body by a resolution dated 29.12.2009. Accordingly, a modified proposal dated 25.2.2010 came to be forwarded to respondent no.1 and that the same is pending consideration of respondent no.1. It is therefore, stated that reservation in respect of the petitioner's land continued. It is further stated that in view of the pendency of the decision on the modified proposal of respondent no.3 dated 25.2.2010, notice issued under section 127 of the MRTP Act by the petitioners was pre-mature. It is further stated that the petitioner by an agreement dated 18.4.2004 had parted with all their interest in the land in favour of third parties and hence the petitioner have no interest in the land. It is stated that also for this reason petitioner's ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 11 wp313.a.w.pil41.10.doc notice under section 127 of the MRTP Act was not maintainable and deserved no cognisance by respondent no.3.
7. The petitioners have filed a rejoinder affidavit dated 21.6.2012 denying the contents of the reply affidavit filed by respondent no.3 rebutting the contentions of respondent no.3. It is stated that respondent no.3 has filed this affidavit without application of mind in as much as the notice under section 37 of the MRTP Act in no manner whatsoever would take away the petitioner's right of issuing a purchase notice under section 37 of the MRTP Act. It is stated that any action interse between the respondents under section 37 of the MRTP Act is not binding on the petitioners. It is submitted that section 127 confers a legal right on the petitioner to issue a purchase notice on the land being kept under reservation without acquisition for a period of ten years. It is stated that the contention on behalf of the respondent no.3 that the petitioners have sold the land to a third party is also incorrect as the respondent no.3 in raising such a contention was relying on a development agreement as annexed to the rejoinder affidavit to construe it as a sale deed. It is submitted that the petitioner continued to remain owners of the land and ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 12 wp313.a.w.pil41.10.doc that the development agreement entered into by the petitioners cannot be treated as a sale of the land under the Transfer of Property Act. It is stated that section 127 notice issued by the petitioner was legal and valid and that the respondent no.3 had admittedly not taken any action to acquire the land or take any effective steps in that regard.
8. On the aforesaid background, we have heard learned counsel for the respective parties.
9. Learned counsel for the petitioner submits that the petitioners are indisputedly owners of the land as the respondents have not placed any sale deed on record to show that the petitioners have transferred their interest in the land to any third party. It is therefore, submitted that the development agreement cannot be construed to be a sale deed so as to transfer the petitioner's right in respect of the said land. It is submitted that the petitioners being owners of the land had a legal right under section 127 of the MRTP Act to issue a purchase notice to respondent no.3 which is the planning authority calling upon the respondent no.3 to acquire the said land for the purpose for which they were reserved, as the ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 13 wp313.a.w.pil41.10.doc same were kept under reservation for more than ten years after commencement of the final development plan. He submits that accordingly the petitioners issued a purchase notice dated 11.3.2010 and 12.3.3010 to the respondent no.3 calling upon respondent no.3 to acquire the land within a period of one year. He submits that there is no dispute on the receipt of the said purchase notices by the respondent no.3 and that these notices were not rejected by respondent no.3. It is submitted that on receipt of the purchase notice respondent no.3 ought to have initiated steps to acquire the petitioner's land. However, no steps in that regard were taken by the respondent no.3 and hence the reservation had admittedly lapsed in view of the clear provisions of section 127 of the MRTP Act. It is submitted that the defence taken by the respondent no.3 in the affidavit in reply is misconceived and cannot be accepted in the absence of respondents issuing a notification under section 6 of the Land Acquisition Act within a period of one year after receipt of the purchase notices as provided under section 127 of the MRTP Act. He submits that the issue in regard to a section 37 notice being initiated by respondent no.3 is wholly irrelevant in as much as the petitioners were in no manner concerned with the same as any action in that regard inter se between the ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 14 wp313.a.w.pil41.10.doc respondents would not bind the petitioners unless a notification under section 6 of the Land Acquisition Act was issued by the respondents within the stipulated period and thereafter any action under section 37 of the MRTP Act is resorted. He submits that in the present case the reservation has clearly lapsed as respondent no.3 has admitted in its reply issued under the Right to Information Act that a notification under Section 6 of the Land Acquisition Act to acquire the petitioner's land was not issued.
Learned counsel has placed reliance on the decision of the Supreme Court in the case of Girnar Traders vs.State of Maharashtra (2007) 7 SCC 555 and the decision of this Court in the case of Prakash Gupta vs Lonavala Municipal Council reported in 2009 (5) Bom CR 484 in support of his submissions.
10. On behalf of the respondent no.3 learned counsel has made submissions that the reservation in respect of the petitioner's land has not lapsed. He submits that sufficient steps are taken by respondent no.3 to acquire the petitioner's land and as set out in the reply affidavit. Learned counsel reiterates his submissions as made in the reply affidavit.
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11. Having considered the rival contentions, it can be seen that the petitioners have asserted that they are the owners of the land in question.
Respondent no.3's contention that the petitioners are not owners of the land on the basis of agreements dated 18.11.2004 and supplementary Agreement dated 30.6.2005 referred by respondent no.3 as sale deeds has been denied by the petitioners to state that the said agreements are not sale deed but development agreements. There is no rebuttal of this assertion of the petitioners by the respondents. A perusal of the said agreements entered into between the petitioner and the said third party (M/s Hari Developers) does not indicate that the same are in the nature of a sale deed so as to transfer the ownership interest of the petitioner. The petitioners being owner of the lands in question were entitled to issue a purchase notice under section 127 of the MRTP Act to the respondent no.3. The petitioners had admittedly issued a purchase notice dated 11.3.2010 and 12.3.2010 in respect of the said lands calling upon the respondent no.3 to acquire the said land. It is not in dispute that these purchase notices were received by respondent no.3. It is an admitted position that the lands were kept under reservation and these lands were not acquired for 10 years from the commencement of the final ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 16 wp313.a.w.pil41.10.doc development plan which commenced on 18.2.1999. Therefore, on receipt of the purchase notice from the petitioners under section 127 of the MRTP Act respondent no.3 was under an obligation to initiate acquisition proceedings to acquire the land for the purpose for which they were reserved. It is clear from the affidavit filed on behalf of the respondent no.3 as also the letter dated 17.2.2012 of respondent no.3 issued to the petitioner under the Right to Information Act, 2005, that no steps for acquisition of the land were taken by issuance of a notification under section 6 of the Land Acquisition Act within a period of one year from the receipt of the purchase notice dated 11.3.2010 and 12.3.2010 of the petitioners. The obvious legal consequence therefore, will be that the reservation would lapse by operation of the provisions of the section 127 of the MRTP Act. It is well settled that the steps for commencement of acquisition proceedings would be issuance of a notification under Section 6 of the Land Acquisition Act read with section 126 (4) of the MRTP Act which the respondent no.3 had failed to issue within the stipulated period of one year from the receipt of the purchase notice. It would be therefore, required to be held that the reservation in respect of this land had lapsed on account of this inaction of respondent no.3 to issue a ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 17 wp313.a.w.pil41.10.doc section 6 notification under the Land Acquisition Act.
'
12. As regards the contention of respondent no.3 that section 37 modification was undertaken by the respondent no.3 as per direction of respondent no.1 by a resolution dated 29.12.2009 passed by the General Body of the respondent no.3 and thereafter a proposal dated 25.2.2010 under section 37 of the MRTP Act was forwarded to respondent no.1 in terms of the directions issued by respondent no.1 in its orders dated 11.12.2003 and 14.1.2009 for modification of the development plan so as to contend that the same were adequate steps to acquire the petitioner's land is also of no consequence. This is for the reason that the right accrued to the petitioner under section 127 of the MRTP Act is an independent right and cannot be construed to have any relation to any action under section 37 which may be taken by the respondent no.3 for modification of the development plan, when a Section 6 notification under the Land Acquisition Act was not issued. Moreover, this action under section 37 does not affect the rights of the Owners under section 127 of the MRTP Act, which rights were accrued to the petitioners in view of the inaction on the part of the respondent no.3 to acquire the land by agreement within 10 years from the commencement of the final ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 18 wp313.a.w.pil41.10.doc development plan. The petitioners were within their legal rights to issue a purchase notice to the respondent no.3 calling upon them to acquire the land. Admittedly the respondent no. 3 had failed to take any steps to acquire the petitioner's land by issuance of a notification under section 6 of the Land Acquisition Act as would be required under law. We therefore, reject the contentions on behalf of respondent no.3 on the basis of proposed actions being initiated under section 37 of the MRTP Act as raised in the affidavit in reply.
13. The petitioners are justified in relying on the decision of the Supreme Court in the case of Girnar Traders vs. State of Maharashtra (supra). The Supreme Court in considering the provisions of sections 127 of the M.R.T.P Act, 1966 has held that "the steps for acquisition" as contemplated under section 127 of the M.R.T.P.Act, 1966 would be issuance of a declaration under section 6 of the Land Acquisition Act. The Supreme Court has observed 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 ac-
quire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owner's property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corpn.
::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 19wp313.a.w.pil41.10.doc of Greater Bombay case4. If the acquisition is left for time immemori-
al in the hands of the authority concerned by simply making an ap- plication to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an applica-
tion and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Sec- tion 126(2) read with Section 6 of the LA Act, wait for the notifica- tion to be issued by the State Government by exercising suo motu power under sub-section (4) of Section 126; and till then no decla- ration could be made under Section 127 as regards lapsing of reser- vation 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 ac- quisition 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 merely for the purpose of seeking time so that Section 127 does not come into op-
eration."
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."
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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 steps taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not a 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 LAAct. 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, considering the public purpose for which the acquisition is sought for by the authorities. Thus the step 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."
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14. In a recent decision of the Supreme Court in the case of Shrirampur Municipal Council Shrirampur Vs. Satyabhamabai Bhimaji Dawkher & ors reported in (2013) 5 Supreme Court Cases 627 the Supreme Court had observed as under :
" 42. We are further of the view that the majority in Girnar Traders (2) 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 "no 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 ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 22 wp313.a.w.pil41.10.doc land will be deemed to have lapsed. Shri Naphade's 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 present case, admittedly a section 6 Notification under the Land Acquisition Act was not issued and hence adverting to the principles of law laid down by the Supreme Court in the aforesaid decisions it would be required to be held that reservation of the land in question had lapsed by operation of section 127 of the M.R.T.P. Act, 1966.
16. In the light of the aforesaid observations, the inevitable conclusion is that the reservation of the petitioner's land in question has lapsed and the land has become available to the petitioner to be developed as otherwise permissible, as in the case of the adjacent land under the Development Plan. Writ Petition therefore deserves to be allowed and is accordingly allowed in terms of prayer clause (a). The State Government is directed to notify the lapsing of the reservation by an order to be published in the Official Gazette as per the requirements of section 127 ::: Downloaded on - 13/10/2014 23:49:14 ::: Rng 23 wp313.a.w.pil41.10.doc (2) of the MRTP Act which shall be done as expeditiously as possible and preferably within a period of six months from today.
Writ Petition stands allowed in the above said terms. No order as to costs.
Public Interest Litigation No.41 of 2010 In view of our findings and conclusion in Writ Petition No.313 of 2012 prayers as made in this Public Interest Litigation No.41 of 2010 which seek directions to the respondents to maintain reservation for a 'garden' in respect of land R.S.No.779/2 cannot be entertained. We accordingly reject this P.I.L Parties to bear their own costs.
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