Bombay High Court
Sant Joginder Singh Kishinsingh And ... vs State Of Maharashtra And Ors. on 8 February, 1989
Equivalent citations: 1989(3)BOMCR458, (1989)91BOMLR807, 1989MHLJ819
JUDGMENT B.N. Deshmukh, J.
1. In this petition, the petitioners challenge acquisition proceedings initiated by notification issued under section 6 of the Land Acquisition Act, read with section 126 of the Maharashtra Regional and Town Planning Act, 1966. The facts leading to this petition are :---
That, a draft development plan for Nanded town was published in Government Gazette, on 28-12-1972. The land from Survey Nos. 13 and 23 of Vazirabad, Nanded was reserved for recreation park in the plan. The notification under section 6 of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 was published on 29 January, 1977. By this notification, the land from Survey Nos. 13 and 23 is being acquired for the public purpose of recreation park.
2. It seems that the petitioners approached the State Government in the matter and obtained stay for acquisition, but stay order came to be vacated on 19th November, 1981. Thereafter, this writ petition is filed under Art. 226 of the Constitution of India challenging the acquisition proceedings to acquire the land from Survey Nos. 13 and 23.
3. Shri M.V. Deshpande, appearing for the petitioners contended that the acquisition proceedings are in contravention of the provisions of proviso to sub-section (2) of section 126 of the Maharashtra Regional and Town Planning Act, 1966.
4. In this petition, it was also alleged that the acquisition proceedings are mala fide, as the land is situated near Gurudwara and the part of the land is occupied by the citizens of that area. Certain provisions of the Maharashtra Regional and Town Planning Act are challenged as ultra vires to the provisions of the Constitution of India.
5. The provisions of section 126 of Maharashtra Regional and Town Planning Act, 1966 reads as follows :---
"126. (1) When after the publication of 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 the State Government (except in cases falling under section 49 (and except as provided in section 113-A itself is of the 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 the said Act, be deemed to be a declaration duly made under the said section :
(Provided that, no such declaration shall be made after the expiry of three years from 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 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 purpose of a new town, the market value prevailing on the date of the publication of the notification constitution 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 modification of the area as an undeveloped are; 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 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 sub-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 acquisition of land afresh.)"
6. Shri Deshpande relying on the provisions of proviso to sub-section (2) contends that the draft plan was published on 28-12-1972. The notification to acquire the land under section 6 of the Land Acquisition Act read with section 126 of the Maharashtra Regional and Town Planning Act, 1966 is issued on 29th January, 1977. According to him, therefore, that the State Government or any other Authority had no power to make any declaration as provided under section 126 after the expiry of 3 years from the date of publication of draft Regional plan or Development plan or any other plan. The acquisition proceedings initiated, without following the procedure prescribed under the Land Acquisition Act and relying on the provisions of section 126 of the Maharashtra Regional and Town Planning Act, are therefore, without jurisdiction and in contravention of the provisions of proviso to sub-section (2) of the Act.
7. Shri Lovekar, appearing for the respondent No 3-Municipal Council, Nanded, contended that the acquisition proceedings initiated and the notification issued is in accordance with the scheme of section 126 of the Maharashtra Regional and Town Planning Act. He has contended that previously there was no provision restricting the power to make a declaration under section 126 in this regard within a specified time, but the proviso to sub-section (2) is added by Maharashtra Act No. xiv of 1971 which was given effect to from 17-2-1971. He further argues that not only proviso to sub-section (2) is added by the Amending Act, but a new sub-section (4) is added to section 126 by the same Amending Act. The provisions of sub-section (4) make it possible to make a declaration even after the period referred to in sub-section (2) has lapsed and a fresh declaration and notification can be issued to acquire the land in the manner prescribed under section 126 of the Maharashtra Regional and Town Planning Act. The argument of Shri Lovekar is supported by Shri Ghuge, appearing for the State.
8. We are unable to appreciate the contention of Shri Lovekar, because sub section (4) provides that 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 Act (Amending Act, 1970), the State Government may make a fresh declaration for acquiring land under the Land Acquisition Act, 1894 in the manner provided by sub-section (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value on the date of declaration in the Official Gazette made for acquiring the land afresh. From bare reading of the section, it is clear that it speaks of declarations not made and having been made the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning Act, (14 of 1971), indicates that sub-section (4) applies to the plans, which were existing prior to the Maharashtra Act 14 of 1971, because there could not be any question of any declaration being made at that time of the plains, which have come into existence after the Amending Act 14 of 1971 The Amending Act is brought into force on 17-2-1971. The sub-section (4) therefore, deals with the plans, which were existing prior to 17-2-1971, because there could be declaration under section 126(1) or (2) of the plans, which were in existence, but there cannot be any declaration of the plans, which were not existing the. The other provisions of sub-section (4) also indicate that the provisions of sub-section (4) apply to the plans, which were existed prior to the Amending Act of 1971, because it also covers where the declarations have not been made. So far as the declarations, which have not been made, the State Government was authorised to make a fresh declarations for acquiring land, but in case the declarations were made but the period had expired, even then the State Government may make a fresh declaration in acquiring the land under the Land Acquisition Act 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 valued at the date of the declaration in the Official Gazette made for acquiring the land afresh.
9. The provisions of sub-section (4) were necessitated because the proviso was added simultaneously to sub-section (2), which provided that no declaration shall be made after the expiry of 3 years from the date of publication of draft regional plan, Development plan or any other plan. In the absence of provision made in the Statute, like that of sub-section (4) the plans which were prepared prior to 17-2-1971 i.e. prior to the Amending Act, the proviso would have made it difficult or impossible to take proceedings under section 126 of the Maharashtra Regional and Town Planning Act. As there was no provision prescribed regarding time limit for making declarations originally; there may be Municipal Councils or other authorities, who had not made such declarations or might have allowed the time to lapse, because there was no provision restricting the period for making the declaration . With a view to save such plans from the rigours of the proviso, the provision of sub-section (4) is brought on Statute. By virtue of provisions of sub-section (4) alone the period of 3 years cannot apply for making declarations regarding plans which were sanctioned prior to 17-2-1971.
10. There is another reason why sub-section (4) is required to be interpreted, in the manner in which we have interpreted. The proviso mentions that no such declaration as contemplated under sub-section (2) shall be made after the expiry of 3 years from the date of publication of the draft Regional plan, Development plan or any other plan. If we read the provisions of sub-section (4) simultaneously, which provides that if the declaration is not made within the period referred to in sub-section (2) a fresh declaration for acquiring the land under the Land Acquisition Act, 1894 may be made by the State Government. If the provisions of sub-section (4) are interpreted to mean that even after the expiry of period 3 years, as provided by the proviso, the State Government may issue fresh declaration, then the provisions of proviso become redundant and meaningless. The provision are to be harmoniously construed to give effect and meaning to each and every provision of the Statute. We, therefore, hold that sub-section (4) cannot be considered to mean that even after the Amending Act brought into force, the State Government after the expiry of 3 years also can make a declaration, as contemplated in sub-section (2) of section 126 of the Maharashtra Regional and Town Planning Act.
11. Shri Lovekar invited our attention to the decision of Single Judge of this Court in Sheth & Bharmal (Firm) v. Municipal Administration, Municipal Corporation of Greater Bombay and others, 1988 Maharashtra Law Journal 613. There is a reference to the provisions of section 126 of the Maharashtra Regional and Town Planning Act. The case is clearly distinguishable. In that case, main question which came for consideration relates to the provisions of section 127 of the Act, by which the reservation or designation is deemed to have lapsed as the notice was given after 10 years period and within the period of notice also the acquisition proceedings were not completed. Therefore, it was contended that the reservation or designation shall be deemed to have lapsed. While considering this question, this Court has found in the case that the B.M.C. had given an application under section 126(1) of the Act for moving the State Government for acquiring the land under Land Acquisition Act. In the facts of that case it was found that the B.M.C. had taken the steps for acquisition of the land and if the steps were taken to acquire the land the reservation cannot be deemed to have lapsed even under the provisions of section 127. In this background the application of the proviso to sub-section (2) was considered. In the present case, we are not concerned with the application of proviso for making an application under section 126(1). We are concerned with the application of proviso for making the declaration under sub-section (2) of the Act. The ratio in the decision has, therefore, no application in the present case.
12. The proviso is added by way of amendment in the year 1971 by the Amending Act. The intention of the legislature is clear in adding proviso to sub-section (2). Previously there was no restriction-period, wise, provided in sub-section (2) of section 126 of the Act, but by adding proviso to sub-section (2) the intention of the legislature is clear and it will have to be given full effect.
13. The second contention of Shri Lovekar was that the whole purpose of the Regional Planning Act will suffer and the development of the town will also suffer if the acquisition proceedings cannot be done in this manner as provided under section 126. We are not impressed by this argument also, because the mode of acquisition as provided by section 126 will not be available to the authorities in such eventualities, but then it cannot be said that there is no other mode, which is available to the State Government for acquiring the land. The authorities, if so desire, can proceed to acquire the land in accordance with the provisions of the Land Acquisition Act, but after the period, as mentioned in proviso, the authorities cannot take recourse for making declaration under section 126(2) of the Act. The object of planning for development of the town will not at all suffer thereby.
14. In the result, Rule made absolute. No costs.