Allahabad High Court
Anuj Singhal vs State Of U.P.Thr.Prin Secy Avas And ... on 20 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 1340
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Reserved on 13.02.2020 (In Court No. 4) Delivered on 20.04.2020 Case :- MISC. BENCH No. - 5841 of 2007 Petitioner :- Anuj Singhal and another Respondent :- State Of U.P. and Anors. Counsel for Petitioner :- Shiv P Shukla,Akshat Srivastava,Mahima Srivastava,Niraj Kumar Srivastava Counsel for Respondent :- C.S.C.,Ram Raj Hon'ble Sudhir Agarwal,J.
Hon'ble Virendra Kumar-II,J.
(Delivered by Hon. Sudhir Agarwal, J.)
1. This writ petition under Article 226 of Constitution of India has been filed by two petitioners, namely, Anuj Singhal and Ajay Singhal, with a prayer to issue a writ of certiorari and quash order dated 22.03.2007 (Annexure-1 to writ petition) whereby U.P. Government has directed Vice Chairman, (hereinafter referred to as "VC") Meerut Development Authority (hereinafter referred to as "MDA") to take appropriate action in the context of petitioners letter dated 12.03.2007. Petitioners have also sought a writ of mandamus commanding Respondent-1 to declare formally plan of Meerut Mahayojna 2001 as notified, final and it does not include Plot No. 229 measuring 2921 sq. meter of Village Budhera Jhidpur, Meerut, as it is no longer required to be kept as open place or unbuilt or not designated as subject to compulsory acquisition. Petitioners have further sought a writ of mandamus that building plan submitted by petitioners, not being sanctioned by MDA for want of such declaration, be deemed as "sanctioned".
2. Facts, in brief, giving rise to present writ petition are that, a Master Plan of Meerut Mahayojna, 2001 was notified w.e.f. 14.08.1996 which included disputed Plot No. 229. Aforesaid plan was accepted by State Government vide Government Order (hereinafter referred to as "G.O.") dated 02.08.1996. It was published under Section 12 of U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as "U.P. Act, 1973") by Notification dated 14.08.1996. Master Plan was enforced from 14.08.1996. Land in dispute was kept reserved for use as Bus Stand/ Bus Terminal.
3. Section 54 of U.P. Act, 1973 provides that a land, if reserved in a Master Plan for any particular purpose, and if not given effect to within 10 years from the date of coming into operation of Master Plan under Section 10 or not acquired within 10 years from the date of coming into operation of such amendment, the owner of land may serve a notice upon State Government requiring it to acquire such land and if State Government fails to acquire within six months from the date of such notice, Master Plan or as the case may be, Zonal Development Plan, after expiry of said six months, shall stand as if the land was not kept reserved for particular purpose or not required to be acquired.
4. Petitioners purchased plot in dispute vide a registered sale deed dated 22.08.2003. The period of 10 years, as contemplated in Section 54 of U.P. Act, 1973 was going to expire on 14.08.2006. Petitioners sent a notice dated 18.01.2005 under Sections 54(1) and 54(2) of U.P. Act, 1973. Obviously this notice was given before expiry of 10 years. By letter dated 04.08.2006 State Government informed petitioners that land in dispute is not covered by Section 54(1) and 54(2) of U.P. Act, 1973, therefore, no relief can be granted to petitioners.
5. Again petitioners sent a legal notice dated 17.08.2006 (i.e., after expiry of 10 years) to MDA under Sections 54(1) and 54(2) of U.P. Act, 1973 requiring it to acquire land in dispute for construction of Bus Stand/ Bus Terminal, failing which after six months petitioners shall be free to use the said land as per their own requirement. Notice was replied by MDA through Advocate's reply dated 03.10.2006 stating that Master Plan of Meerut Mahayojna, 2001 became effective from 14.08.1996 wherein disputed land was reserved for use of Bus Stand/ Bus Terminal. So long as Meerut Mahayojna, 2001 is not repudiated or modified by a new scheme, it will continue to operate and contrary thereto petitioners cannot be allowed to use it otherwise.
6. Petitioners then submitted a map for sanction of raising construction over land in dispute by letter dated 12.03.2007 and thereafter filed present writ petition.
7. Respondents-1 and 2 have filed separate counter affidavits. It is stated in the counter affidavit filed by Respondent-1 that petitioners made a representation dated 12.03.2007 under Sections 54(1) and 54(2) of U.P. Act, 1973. They applied to State Government for acquisition of Plot No. 229 area 2921 sq. meter. State Government vide letter dated 22.03.2007 referred the matter to MDA for taking appropriate decision in accordance with Rules. Disputed plot was earmarked in Meerut Mahyojna 2001 for the purpose of transportation. It was reserved for continuous transportation i.e. for Bus Stand and Bus Terminus. This has been maintained in Meerut Mahayojana 2021 also. The land in dispute is required to be utilized for public purposes i.e. Bus Stand and Bus Terminus. MDA has prepared proposal of Master Plan 2021 and sent to State Government for approval. Vide order dated 13.10.2006 State Government has approved Meerut Master Plan 2021 with some amendments. Disputed land is still reserved for public purposes as it was in Meerut Master Plan 2001 which was effective w.e.f. 14.08.1996, i.e., for Bus Stand and Bus Terminus. MDA has published public notice in daily news paper, "Danik Jagran: dated 23.10.2006 and "Hindustan Times" and "Times of India" dated 24.10.2006. Land use was same as it was in Master Plan 2001 i.e. for Bus Stand and Bus Terminus with 45 meters vide Master Plan Road. Provisions of Sections 10 and 12 of U.P. Act, 1973 have been complied with by respondents. Before finalization of Master Plan, 2021 objections and suggestions were invited but no objections were received regarding disputed land. Petitioners made objection and representations to MDA for change of land use after demolition of unauthorized construction. It is reiterated that Plot No. 229 situated in Vallage Budhera Jahidpur, Meerut has been demarcated in Meerut Master Plan 2001 as well as Meerut Master Plan 2021 for public interest for facilitating Transport and Traffic by construction of Bus Stand and Bus Terminus. Petitioners have purchased land in 2003; Master Plan 2001 was already in operation; land in dispute was reserved for public purpose; petitioners illegally started construction over land in dispute, hence MDA has rightly proceeded in accordance with law for demolition of unauthorized construction. It is reiterated that Master Plan 2021 forwarded to Government for its approval on 22.02.2005 was well within time i.e. before expiry of prescribed period of 10 years, which was approved on 13.10.2006 and came into force on 23.10.2006 after publication of public notice in daily news papers.
8. In the counter affidavit filed by Respondent-2 similar facts have been pleaded, hence we are nor reiterating the same.
9. Similarly in the rejoinder affidavit, petitioners have reiterated facts pleaded in the writ petition. It is reiterated by petitioners that land in dispute cannot remain earmarked for a period of more than 10 years and it would be contrary to Section 54 of U.P. Act, 1973, hence land shall be deemed as having been taken out from Master Plan, 2001, once owner has given notice and State Government has not acquired disputed land within six months from the date of notice.
10. Dispute in present writ petition relates to effect and scope of Section 54 of U.P. Act, 1973 vis-a-vis plot no. 229. Before coming to aforesaid provision, it would be appropriate to have a bird eye view to the scheme of Master Plan under U.P. Act, 1973.
11. U.P. Act, 1973 was enacted to provide for development of certain areas of State of U.P. according to plan and for matters ancillary thereto. Existing local bodies and other authorities were not found able to cope up with fast requirement of development in State. The model of Delhi Development Authority for planned urban development was found appropriate to have development authorities with power and duties to function in similar manner in the State of U.P.
12. U.P. Act, 1973 is divided in nine Chapters. Chapter-I has only two Sections dealing with preliminary matters, namely, short title and extent and definitions. Chapter II contains Sections 3 to 7 relating to Development Authority and its object. Chapter-III is crucial for the purpose of this Court since it deals with Master Plan and Zonal Development Plan containing Sections 8 to 12. Then Chapter-III-A is there which was inserted by U.P. Act 19 of 1976 and it has only one Section 12A dealing with Arterial Roads and Development Area. Chapter-IV also consists of a single Section 13 dealing with subject of Amendment of Master Plan and Zonal Development Plan. Chapter-V deals with development of land having four Sections, i.e., Sections 14, 15, 15A and 16. Chapter VI deals with acquisition and disposal of land having Sections 17, 18 and 19 and Chapter VII deals with Finance, Accounts and Audit having Sections 20 to 24. Last Chapter VIII is the longest Chapter running from Sections 25 to 60 dealing with residuary matters.
13. U.P. Act, 1973 defines the terms "development", "development area" and "development plan" vide Section 2(e), (f) and (gggg), which read as under:
"(e) 'Development' with its grammatical variations, means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in any building or land, and includes re-development."
"(f) 'Development Area' means any area declared, development area under Section 3."
"(gggg) 'Development Plan' means that Master Plan or Zonal Development Plan approved and published by the State Government under Section 12 of the Act." (emphasis added)
14. Terms "development authority" or "the authority" and "zone" are also defined vide Section 2(g) and (m) and the same read as under:
"(g) "the Development Authority" or "the Authority" in relation to any development area, means the Development Authority constituted under Section 4 for that area."
15. Section 3 says that if in the opinion of State Government any area within the State requires to be developed according to plan it may, by notification in the Gazette, declare such area to be a "development area". Section 4 enables State Government to constitute an authority called "Development Authority" for any development area by issuing a notification in the gazette. Such Development Authority shall be a body corporate by the name given to it in the said notification and would have perpetual succession and a common seal. It shall also have power to acquire, hold and dispose of property, both movable and immovable and to contract. It can be sued or also sue by the name given to it in notification. In other words such Development Authority is a statutory bode and juristic personality. Section 7 refers to objects of the Authority and reads as under:
"7. Objects of the Authority.-The objects of the Authority shall be promote and secure the development of the development area according to plan and for that purpose the Authority shall have the Power to acquire, hold, manage and dispose of land and other property, to carry out building, engineering, mining and other operations, to execute works in connection with the supply of water and electricity to dispose of sewage and to provide and maintain other services and amenities and generally to do anything necessary or expedient for purposes of such development and for purposes incidental thereto:
Provided that save as provided In this Act nothing contained in this Act shall be construed as authorising the disregard by the Authority of any law for the time being in force."
16. obligation to prepare a "Master Plan" by Development Authority constituted for a development area has been imposed by Section 8 of U.P. Act, 1973. It also provides as to what a "Master Plan" shall contain. Section 8 reads as under:
"8. Civil survey of, and master plan for the development area:(1) The Authority shall, as soon as may be, prepare a master plan for the development area.
(2) The master plan shall-
(a) define the various zones into which the development area may be divided for the purposes of development and indicate the manner in which the land in each zone is proposed to be used (whether by the carrying out thereon of development or otherwise) and the stages by which any such development shall be carried out; and
(b) serve as a basic pattern of framework within which the Zonal. development plans of the various zones may be prepared.
(3) The master plan may provide for any other matter which may be necessary for the proper development of the development area." (emphasis added)
17. Section 9 deals with "Zonal Development Plan" and it reads as under:
"9. Zonal Development plans.-(1) Simultaneously with the preparation of the master plan or as soon as may be thereafter, the Authority shall proceed with the preparation of a zonal development" plan for each of the zones into which the development area may be divided.
(2) A zonal development plan may-
(a) contain a site-plan and use-plan for the development of the zone and show the approximate locations and extents of land uses proposed in the zone for such things as public buildings and other public works and utilities, roads, housing, recreation, industry, business, markets, schools, hospitals and public and private open spaces and other categories of public and private uses;
(b) specify the standards of population density and building density;
(c) show every area in the zone which may, in the opinion of the Authority, be required or declared for development or re-development; and
(d) in particular, contain provisions regarding all or any of the following matters, namely--
(i) the division of any site into plots for the erection of buildings;
(ii) the allotment or reservation of land for roads, open spaces, gardens recreation-grounds, schools, markets and other public purposes;
(iii) the development of any area into a township or colony and the restrictions and conditions subject to which such development may be undertaken or carried out;
(iv) the erection of buildings on any site and the restrictions and conditions in regard to the open spaces to be maintained in or around buildings and height and character of buildings;
(v) the alignment of buildings of any site;
(vi) the architectural features of the elevation or frontage of any building to be erected on any site;
(vii) the number of residential buildings which may be erected on plot or site;
(viii) the amenities to be provided in relation to any site or buildings on such side whether before or after the erection of buildings and the person or authority by whom or at whose expense such amenities are to be provided;
(ix) the prohibitions or restrictions regarding erection of shops, work-ships, werehouses or factories or buildings of a specified architectural feature or buildings designed for particular purposes in the locality;
(x) the maintenance of walls, fences, hedges or any other structural or architectural construction and the height at which they shall be maintained;
(xi) the restrictions regarding the use of any site for purposes other than erection of buildings;
(xii) any other matter which is necessary for the proper development of the zone or any area thereof according to plan and for preventing buildings being erected haphazardly in such zone or area."(emphasis added)
18. Sections 10 and 11 of U.P. Act, 1973 deal with procedure of preparation and approval of Master Plan or Zonal Development Plan, as the case may be, and we find it appropriate to reproduce the same as under:
"10. Submission of plans to the State Government for approval.-(1) In this section and in Sections 11, 12, 14 and 16 the word plan means the master plan as well as the zonal development plan for a zone.
(2) Every plan shall, as may be after its preparation be submitted by tile Authority to the State Goverininent for approval and that Government may either approve the plan without modification or with out modifications as it may consider necessary or reject the plan with directions to the Authority to prepare a fresh plan according to such directions."
"11. Procedure to be followed in the preparation and approval Plan.(1) Before preparing any plan finally and submitting it to the 'Abate Government for approval, the Authority shall prepare a plan in and publish it by making a copy thereof available for inspection publishing a notice in such form and manner as may be prescribed by regulations made in that behalf inviting objections and suggestions from any person person with respect to the draft plan before such date as may be specified in the notice.
(2) The Authority shall also give reasonable opportunity to every local authority within whose local limits an land touched by the plan is situated, to make any representation with respect to the plan.
(3) After considering all objections, suggestions and representations that may have been received by the Authority. the Authority shall finally prepare the plan and submit it to the State Government for its approval.
(4) Subject to the foregoing provisions of this section. the State Government may direct the Authority to furnish such information as that Government may require for the purpose of approving any plan' submitted to It under this section."
19. Section 12 deals with date of commencement of plan and reads as under:
"12. Date of commencement of plan.-Immediately after a plan has been approved by the State Government, the Authority shall publish in such manner as the State Government may specify, a notice stating that a plan has been approved and naming a place where a copy of the plan may be inspected at all reasonable hours and upon the date of the first publication of the aforesaid notice the plan shall come into, operation." (emphasis added)
20. Section 13 deals with power and procedure of amendment of plan and reads as under:
"13. Amendment of Plan.-(1) The Authority may make any amendments in the master plan or the zonal development plan as it thinks fit, being amendments which, in its opinion do not effect important alteration in the character of the plan and which do not relate to the extent of land uses or the standards of population density.
(2) The State Government may make amendments in the master plan or the zonal development plan whether such amendments are of the nature specified in Sub-section (1) or otherwise.
(3) Before making any amendments in the plan, the Authority, or as the case may be, the State Government shall publish a notice in at least one newspaper having circulation in the development area inviting objections and suggestions from any person with respect to the proposed amendments before such date as may be specified in the notice and shall consider all objections and suggestions that may be received by the Authority or the State Government.
(4) Every amendment made under this section shall be published in such manner as the Authority or the State Government, as the case may be, may specify, and the amendments shall come into operation either 3n the date of the first publication or on such, other date as the Authority or the State Government, as the case, may be, may fix.
(5) When the Authority makes any amendments in the plan under Sub-section (1) it shall report to the State Government the full particulars of such amendments within thirty days of the date c)n which such amendments come into operations.
(6) If any question arises whether the amendments proposed to be made by the authority are amendments which effect important alterations In the character of the plan or whether they relate to the extent of land-uses or, the standards of population density, it shall be referred to the State Government whose decision, thereon shall be final.
(7) Any reference in any other Chapter, except Chapter III, to the master plan or the zonal Development plan shall be construed as a reference to the master plan or the zonal development plan as amended under this section." (emphasis added)
21. Section 14 talks of development of land in development areas. Section 15 deals with subject of application for permission. Section 15A deals with completion certificate and Section 16 imposes a prohibition that no land or building shall be used in contravention of plan, namely, Master Plan or Zonal Development Plan, as the case may be. For the purpose of issue raised in this petition these provisions are not of much relevance hence we are not discussing the same in detail.
22. Chapter VI has three provisions, as already said, and deals with procedure of acquisition, disposal of land. It also confer power upon Government to acquire land under Land Acquisition Act, 1894 (hereinafter referred to as "Act, 1894") if such land is required for the purpose of development or for any other purpose under U.P. Act, 1973.
23. The power of acquisition of State Government is also not in dispute in the present petition, therefore, we are not going in detail in respect of these provisions of Chapter VI.
24. Now one more provision which in our view is relevant for consideration of issue raised in this petition is Section 54 of U.P. Act, 1973 and we reproduce the same as under:
"54. Plans to stand modified in certain cases.-(1). Where any land situated in the development area is required by the Master Plan or a zonal Development Plan to be kept as an open space or unbuilt upon or is designated in any such plan as subject to compulsory acquisition, then, if at the expiration of ten years from the date of coming into operation of the Plan under Section 12 or where such land has been so required or designated by any amendment of such plan, from the date of coming into operation of such amendment, under Sub-section (4) of Section 13, the land is not compulsorily acquired the owner of land may serve on the State Government a notice requiring his interest in the land to be so acquired.
(2) If the State Government fails to acquire such land within a period of six months from the date of the notice, the Master Plan or, as the case may be, the Zonal Development Plan shall have effect after the expiration of the said six months, as if that land were not required to be kept as an open space or unbuilt upon or were not designated as subject to compulsory acquisition."
(emphasis added)
25. Section 54 of U.P. Act, 1973, in effect, is a provision which protects interest of a private owner of land where such land has been reserved for some 'public purpose' and is to be acquired by State forcibly. In order to check inaction or arbitrariness of State Authorities by keeping such land reserved without acquisition proceedings for a long time, a balance of interest of State as well as individual and owner has been maintained and it is provided that where land owned by a private person is kept reserved as an open space or unbuilt or to be developed in a particular manner or subject to compulsory acquisition then it is obligatory upon State to acquire the said land within 10 years from the date Plan/ Master Plan/ Zonal Plan (as the case may be) came into operation under Section 12 i.e. on the date when Plan is published after approval by State Government.
26. If land is not so acquired within 10 years then it will be opened to land owner to serve a notice upon State to acquire land or interest of land owner in the land and from the date of service of notice, State Government further shall have an opportunity to acquire land within six months. Still if it fails, then by operation of law such land shall stand released, inasmuch as, it shall result, in effect, as if the said land was not required to be kept as an open space or unbuilt or for development of any public purpose and would not be available for compulsory acquisition. Meaning thereby, private land owner can proceed thereafter to use land in the manner he likes.
27. We may refer two more provisions to complete our reference to the scheme of U.P. Act, 1973. Section 55 confers power upon State Government to make "Rules" for carrying out the purposes of U.P. Act, 1973 and Section 56 confers power upon Development Authority to make "Regulations" but restriction is that such Regulation shall be made with previous approval of State Government and "Regulations" should not be inconsistent with U.P. Act, 1973 or Rules made thereunder.
28. The issues which have arisen from rival contentions required to be adjudicated by us are formulated as under:
(I) Whether Development Authority is entitled to keep certain piece of land, owned by a private person, reserved for any public purpose under Master Plan or Zonal Development Plan in such a manner that owner may not use it for any length of time and Development Authority or State Government can show a complete inaction regarding acquisition of such land irrespective of Section 54 of U.P. Act, 1973?
(II) Whether it is open to an owner to serve a notice for release of land for being used by such owner for a purpose other than public purpose it was reserved in Master Plan or Zonal Development Plan by Authority, if no acquisition has been made for a period of 10 years, and once a notice required under Section 54 is served upon Development Authority, the land, if not acquired within six months from notice, shall stand deemed released?
(III) Whether a Development Authority can continue with such reservation by making simultaneously next Master Plan but without having any obligation of acquisition of such private land in a manner so as to render Section 54(2) ineffctive and futile?
29. On the scope, ambit and interpretation of Section 54 of U.P. Act, 1973, learned counsel for both parties have not placed any authority before this Court but some judgments of Supreme Court considering pari materia or substantially similar provisions have been relied on and we find it appropriate to consider the same in order to adjudicate the issues raised before us.
30. In K.L. Gupta and Ors. vs. The Bombay Municipal Corporation and Ors. AIR 1968 SC 303, similar provision of Bombay Town Planning Act, 1954 (hereinafter referred to as "Bombay TP Act, 1954") and Bombay Municipal Corporation Act, 1888 (hereinafter referred to as "Bombay MC Act, 1888") came up for consideration before a Constitution Bench. Therein constitutional validity of Sections 9, 10, 11, 12 and 13 of Bombay TP Act, 1954 was challenged. In the process of upholding constitutional validity of above provisions, Court observed, that, where much powers are given to authorities, exercise whereof make serious inroads into the rights of property of private individuals, Court has to see whether there is any guidance to be collected from the Act itself, its object and its provisions, in the light of surrounding circumstances which made the legislation necessary, taken in conjunction with well known facts of which the Court might take judicial notice. Period of 10 years for the purpose of attracting reservation of land lapsed was held a reasonable period. In this regard, Court said as under:
"With regard to the complaint that the period of ten years fixed under Section 11(3) of the Act was too long, and an unreasonable restriction on the rights of a land owner to deal with his land as he pleased, it is enough to say that in view of the immensity of the task of the local authorities to find funds for the acquisition of lands for public purposes, a period of ten years was not too long." (emphasis added)
31. While examining the scheme of statute, Court also referred to the provisions relating to lapse after 10 years and said:
"Sub-section (3) provides that if the designated land is not acquired by agreement within ten years from the date specified under sub-section (3) of Section 10 or if proceedings under the Land Acquisition Act are not commenced within such period, the owner or any person interested in the land may serve notice to the local authority and if within six months from the date of such notice the land is not acquired or no steps as aforesaid are commenced for its acquisition, the designation shall be deemed to have, lapsed. This provision again is for the benefit of the owner of the land for unless the land is acquired or steps taken in that behalf within the fixed limits of time, he ceases to be bound by the designation of his land as given in the development plan. Section 12 obliges every person who desires to carry on any development work in any building or in or over any land within the limits of the said area after the date on which a declaration of intention to prepare a development plan to apply to the local authority for a commencement certificate for the purpose. 'Development' in this connection means carrying out of building or other operations in or over or under any land or the making of any material change in the use of any building or other land. It is to be noticed that the section imposes such restriction not only from the date of preparation of the development plan but as soon as there is publication of intention to prepare a development plan." (emphasis added)
32. Section 127 of Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "Maharashtra RTP Act, 1966") which is substantially pari materia to Section 54 of U.P. Act, 1973 came up for consideration before a Two Judges Bench of Supreme Court in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association, AIR 1988 SC 233. The dispute relates to a double storied building situate on a land admeasuring 3645.26 square metres bearing survey no. 176 of Tardeo, Bombay. In a development plan the said land was reserved for a recreation ground. Development plan was approved by State Government on 06.01.1967 and came into effect on 07.02.1967. No action for its acquisition was taken by authorities till 01.01.1977. The private owners of land served a purchase notice dated 01.07.1977 on Commissioner, Municipal Corporation of Greater Bombay (hereinafter referred to as "MCGB") either to acquire land or release it. Notice was received by MCGB on 04.07.1977. Section 127 of Maharashtra RTP Act, 1966 with reference whereto notice was served read as under:
"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 or otherwise, permissible in the case of adjacent land under the relevant plan." (emphasis added)
33. The dispute raised in aforesaid case was, whether period of six months specified in Section 127 would reckon from the date of service of purchase notice dated 01.07.1977 by owner on MCGB or the date on which requisite information and particulars was furnished by such owner. In order to put the facts straight, Court said that period of six months would commence on 04.08.1977 and MCGB passed resolution for acquisition of said land on 31.01.1978 for taking necessary steps ibut actual acquisition did not see any action within six months. A learned Single Judge of Bombay High Court allowed writ petition of owner holding that no action was taken by authorities within 10 years from the date on which final development plan came into force by taking recourse to Section 126(1) of Maharashtra RTP Act, 1966 and therefore, even acquisition notification issued by State Government was quashed. The view taken by learned Single Judge was upheld by Division Bench by dismissing appeal of MCGB but Division Bench gave its reason that six months period would commence from 04.07.1977, i.e., the date of notice received by MCGB and within six months no action was taken, therefore, reservation of land for recreation ground deemed lapsed by operation of statutory provision contained in Section 127 of Maharashtra RTP Act, 1966. It is in this context, Supreme Court observed, that reservation of private land and provision enabling acquisition is a fetter on the ownership right of private owner in respect of his land which he/she cannot use according to own wishes. Section 127, however, is a fetter upon the power of eminent domain of State and is a valuable safeguard to a citizen against arbitrary action. By enacting Section 127 of Maharashtra RTP Act, 1966 legislature has struck a balance between competing claims of interests of general public as regards the rights of an individual. An analysis of Section 126 of Maharashtra RTP Act, 1966 would reveal that after publication of a draft regional plan, a development or any other plan or town planning scheme, any land if required or reserved for any of public purposes specified therein, the Planning Authority, Development Authority or as the case may be, any Appropriate Authority may, except as provided in Section 113A of Maharashtra RTP Act, 1966, at any time acquire land either by agreement or make an application to State Government for acquisition of such land under Act, 1894. Sub-section (2) thereof provides that State Government may, on receipt of applications contemplated by Section 126(1) of Maharashtra RTP Act, 1966, or if the Government (except in cases falling under Section 49 and except as provided in Section 113A of Maharashtra RTP Act, 1966 is itself 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 final gazette, in the manner provided in Section 6 of Act, 1894 in respect of said land. The rule is subject to an exception. Proviso to Section 126(2) of Maharashtra RTP Act, 1966 interdicts that no such declaration shall be made after expiry of three years from the date of publication of draft regional plan, development plan or any other plan. Sub-section (3) deals with procedure to be followed for acquisition of land covered by a declaration under Section 6 of Act, 1894. A conjoint effect of sub-sections (1), (2) and (4) of Section 126 of Maharashtra RTP Act, 1966 is that if no declaration is made within the period referred to in sub-section (2), that is to say, before expiry of three years from the date of publication of draft regional plan, development plan or any other plan, compensation payable to owner of land for such acquisition, in that event, shall be the market value on the date of fresh declaration under Section 6 of Act, 1894 i.e. the market value not at the date of notification under Section 4(1) of Act, 1894 but the market value at the date of declaration under Section 6 of Act, 1894. That is one of the safeguards provided under Maharashtra RTP Act, 1966. Another safeguard provided is under Section 127 of Maharashtra RTP Act, 1966. It is a part of law for acquisition of land required for public purposes, namely, for implementation of scheme of town planning. Statutory bar created by Section 127 provide 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 service of purchase notice. It is an integral part of machinery created by which acquisition of land takes place. Court also observed that it is in agreement with High Court that purchase notice dated 01.07.1977 served by Respondents-4 to 7 was valid notice and, therefore, it was valid to MCGB to take any steps for acquisition of land within the period of six months therefrom whereafter the reservation of land in development plan for a recreation ground would have lapsed. Court thereafter gave scheme of Sections 126 and 127 of Maharashtra RTP Act, 1966 and said as under:
"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 Acquisition Act, is to freeze the prices of the lands affected. The Act lays down the principles of fixation by providing firstly, by the proviso to Section 126(2) that no such declaration under Sub-section (2) 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, secondly, by enacting Sub-Section (4) of Section 126 that if a declaration is not made within the period referred to in Sub-section (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough. The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed. " (emphasis added)
34. The next authority in this regard we proceed to consider is Bhavnagar University vs. Palitana Sugar Mill (P) Lrd. And others, (2003) 2 SCC 111, decided by a three Judges Bench of Supreme Court. It relates to a similar issue raised in the context of Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "Gujarat TPUD Act, 1976"). The facts in aforesaid case were that on 03.03.1986 a development plan was finally published in terms of Gujarat TPUD Act, 1976. The period of 10 years would have lapsed on 02.03.1996 but prior thereto a revised development plan came to be enforced on 20.02.1996. Land in dispute was admittedly owned by private party, namely, Palitana Sugar Mill Pvt. Ltd. and others but in the development plan it was reserved for certain public purpose relating to establishment of educational institutions or University. Section 20 of Gujarat TPUD Act, 1976 provided for acquisition of land as per the procedure under Act, 1894 and sub-section (2) thereof was similar to Section 54 of U.P. Act, 1973. For our benefit we reproduce Section 20 of Gujarat TPUD Act, 1976 as under:
"20. Acquisition of land : (1) The area development authority or any other authority for whose purpose land is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause (k), clause (n) or clause (o) of sub-section (2) of Section 12, may acquire the land either by agreement or under the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve a notice on the authority concerned requiring it to acquire the land and if within six months from the date of service of such notice the land is not acquired or no steps are commenced for its acquisition, the designation of land as aforesaid shall be deemed to have lapsed."
35. The land reserved for public purpose was not acquired by Gujarat Government though a notice, contemplated under Section 20(2) of Gujarat TPUD Act, 1976, was served by owner of private land to Development Authority and State Government and six months time had expired. The defence taken by State and its instrumentality was that the said notice lost its efficacy since before expiry of 10 years period development plan was revised and therefore, owner of private land could not have claimed any benefit of Section 20(2) of Gujarat TPUD Act, 1976. After giving entire scheme of Gujarat TPUD Act, 1976, Court observed that while construing provisions of a statute, the entire scheme should be read as a whole, then Chapter by Chapter, Section by Section and words by words. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. True meaning of a statutory provision can be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. Court held that State has power to acquire a private land if it is so required in public interest or for any public purpose and also to give effect to the scheme of Gujarat TPUD Act, 1976 it can reserve certain land for certain specific purposes even if it is owned by some private person, restricting use of such private person, but simultaneously the provisions of statute and scheme has to be read so that right of private owner may be said to be reasonably restricted and not altogether prohibited. An owner of a property, subject to reasonable restrictions which may be imposed by legislature, is entitled to enjoy his property in any manner he likes. Right to use a property in a particular manner or in other words restriction imposed on user thereof, except in the mode and manner laid down under the statute, would not be presumed. A statute has to be read in such a manner so that its beneficial scheme can be executed in a fair and non arbitrary manner and simultaneously while recognizing reasonable restrictions imposed upon a private person, the same should be confined only to the restriction and not complete prohibition in the garb of restriction.
36. In Bhavnagar University vs. Palitana Sugar Mill (supra) Court said that by reason of provision of Gujarat TPUD Act, 1976, a reasonable restriction has been imposed upon owner on user of his property. In terms of Section 12 of Gujarat TPUD Act, 1976, town planning is contemplated through preparation of draft development plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries. In terms of such development plan, reservation of certain land for public use is also provided. State Government was made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of land. State Government while arriving at its conclusion as regards public interest involved in the matter, is required to arrive at its satisfaction on objective basis as provided in terms of sub-section (2) of Section 17 of Gujarat TPUD Act, 1976 to the effect that lands in respect whereof reservation is proposed to be made can be acquired for the fulfillment of object therefor either by agreement or compulsory acquisition within the period specified therein. Having said so, Court further said, that, Sections 20 and 21 of Gujarat TPUD Act, 1976 have to be read conjunctively with Sections 12 and 17. We may notice at this stage that Section 12 of Gujarat TPUD Act, 1976 deals with contents of Draft Development Plan and Section 17 deals with approval of State Government finally for development plan. Having said so, in paras 31, 32 and 34, Court in Bhavnagar University vs. Palitana Sugar Mill (supra), said as under:
"31. Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Sub-section (1) of Section 20 is merely an enabling provision.
32. Sub-section (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.
34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse."
(emphasis added)
37. We find that the above authority of Supreme Court involves facts similar to those as are before use, and this judgment clearly helps the petitioners to return all the issues formulated above in favour of petitioners.
38. Again a three Judges Bench dealt with similar issue in the context of Maharashtra RTP Act, 1966 in Girnar Traders vs. State of Maharashtra and others, (2007) 7 SCC 555. Majority judgment has been rendered by Hon'ble P.P. Naolekar, J. for himself and on behalf of Hon'ble B.N. Agrawal, J. Dispute related to land bearing City Survey No. 18/738, admeasuring about 5387.35 sq. yard, situate at Carmichael Road, Malabar Hill Division, Mumbai. A development plan was drafted and submitted by Bombay Municipal Corporation (hereinafter referred to as "BMC") and sanction was granted by Maharashtra Government on 06.01.1967. It came into force on 07.02.1967. Land in dispute was notified for development for open space of children park. The above plan was prepared and approved as per the provisions of Bombay TP Act, 1954 which came to be repealed and substituted by Maharashtra RTP Act, 1966 w.e.f. 11.01.1967. Acquisition proceedings for land were initiated but no award was made and Section 11A inserted in Act, 1894 came into force on 24.09.1984 hence Land Acquisition Officer held acquisition proceedings lapsed. A revised development plan was sanctioned by State Government on 06.07.1991 and came into force on 16.09.1991. The owner of land issued notice under Section 127 of Maharashtra RTP Act, 1966 on 03.02.1998, asking authorities to renotify property to release from reservation and accord sanction or approval to develop property by owner himself. BMC informed owner that 10 years has not expired since revised plan came into force on 16.09.1991. Another notice under Section 127 was served by owner on 18.10.2000, and again similar reply was given by MCGB. A third notice was given on 15.03.2002 stating that 10 years period has expired but no acquisition proceedings have been commenced or completed hence property should be dereserved. Said notice was served on Municipal Commissioner, MCGB on 19.03.2002. Thereafter authorities woke up and improvement committee passed a resolution on 09.09.2002 recommending Municipal Corporation to initiate acquisition proceedings. Without any resolution by Municipal Corporation, Chief Engineer, Development Plan, sent a letter to State Government for initiating acquisition proceedings. Later on 16.09.2002 MCGB passed resolution giving sanction to initiate acquisition proceedings of land in dispute and Municipal Commissioner was authorized to make appropriate application to the State Government. On 17.09.2002 Chief Engineer, Development Plan informed State Government that Corporation granted sanction to initiate acquisition proceedings and thereafter notification under Section 126(2) of Maharashtra RTP Act, 1966 read with Section 4 of Act, 1894 was issued on 20.11.2002. This acquisition notification was challenged in Writ Petition No. 353 of 2005. Writ petition was dismissed by High Court. Initially only the question of applicability of Section 11A of Maharashtra RTP Act, 1966 on which Bombay High Court decided matter, was raised before Supreme Court and matter was referred to Larger Bench but in the final hearing stage, Court also considered question of scope and ambit of Section 127 read with Section 126 of Maharashtra RTP Act, 1966 for the purpose of dereservation of land reserved under development plan. Section 127 of Maharashtra RTP Act, 1966 is similar to Section 54 of U.P. Act, 1973.
39. In paras 31 and 32 in Girnar Traders vs. State of Maharashtra (supra), Court has examined Section 127 of Maharashtra RTP Act, 1966 in detail and said as under:
"31. Section 127 prescribes two time periods. First, a period of 10 years within which the acquisition of the land reserved, allotted or designated has to be completed by agreement from the date on which a regional plan or development plan comes into force, or the proceedings for acquisition of such land under the MRTP Act or under the LA Act are commenced. Secondly, if the first part of Section 127 is not complied with or no steps are taken, then the second part of Section 127 will come into operation, under which a period of six months is provided from the date on which the notice has been served by the owner within which the land has to be acquired or the steps as aforesaid are to be commenced for its acquisition. The six-month period shall commence from the date the owner or any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing his intent claiming de-reservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127 stipulates that the reservation of the land under a development scheme shall lapse if the land is not acquired or no steps are taken for acquisition of the land within the period of six months from the date of service of the purchase notice. The word aforesaid in the collocation of the words no steps as aforesaid are commenced for its acquisition obviously refers to the steps contemplated by Section 126 of the MRTP Act.
32. If no proceedings as provided under Section 127 are taken and as a result thereof the reservation of the land lapses, the land shall be released from reservation, allotment or designation and shall be available to the owner for the purpose of development. The availability of the land to the owner for the development would only be for the purpose which is permissible in the case of adjacent land under the relevant plan. Thus, even after the release, the owner cannot utilize the land in whatever manner he deems fit and proper, but its utilisation has to be in conformity with the relevant plan for which the adjacent lands are permitted to be utilized." (emphasis added)
40. Construing the provisions of statute where a balance has to be struck between State's power of Eminent domain and right of owner of an immovable property, Court in Girnar Traders vs. State of Maharashtra (supra) held that provisions should be construed in such a manner that public purpose and public interest is well protected but not to the extent that authorities may get such power which may exceed the limit of reasonableness, fairness and arbitrariness. Court said that a plain meaning to the statute would not be resorted to when there is a sense of possible injustice. In such a case, the simple application of words in their primary and unqualified sense is not always sufficient and will sometimes fail to carry out the manifest intention of law-giver as collected from statute itself and nature of subject-matter and the mischiefs to be remedied. If the plain words lead apparently to do some injustice or absurdity and at variance with, or not required by, the scope and object of legislation, it would be necessary to examine further and to test, by certain settled rules of interpretation, what was the real and true intention of the legislature and thereafter apply the words if they are capable of being so applied so as to give effect to that intention. Where the plain literal interpretation of statutory provision were to manifestly result in injustice, never intended by the legislature, Court is entitled to modify the language used by legislature so as to achieve the intention of legislature and to produce a rational construction. Purpose of law is to prevent brooding sense of injustice. It is not the words of law but the spirit and eternal sense of it that makes the law meaningful. It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly. Court then also considered its earlier judgment in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association (supra) and distinguishing the aforesaid judgment, said in para 52, as under:
"52. In light of the above-mentioned factual matrix, the question of law involved in the Municipal Corporation of Greater Bombay Case (supra) was as follows:
"2. The short point involved in this appeal by special leave from a judgment of a Division Bench of the Bombay High Court dated June 18, 1986, is whether the period of six months specified in Section 127 of the Act is to be reckoned from the date of service of the purchase notice dated July 1, 1977 by the owner on the Planning Authority i.e. the Municipal Corporation of Greater Bombay here, or the date on which the requisite information of particulars is furnished by the owner."
The Court has answered the above question as follows:
"7. According to the plain reading of Section 127 of the Act, it is manifest that the question whether the reservation has lapsed due to the failure of the Planning Authority to take any steps within a period of six months of the date of service of the notice of purchase as stipulated by Section 127, is a mixed question of fact and law. It would therefore be difficult, if not well nigh impossible, to lay down a rule of universal application. It cannot be posited that the period of six months would necessarily begin to run from the date of service of a purchase notice under Section 127 of the Act. The condition pre-requisite for the running of time under Section 127 is the service of a valid purchase notice. It is needless to stress that the Corporation must prima facie be satisfied that the notice served was by the owner of the affected land or any person interested in the land. But, at the same time, Section 127 of the Act does not contemplate an investigation into title by the officers of the Planning Authority, nor can the officers prevent the running of time if there is a valid notice."
Thus, after perusing the judgment in Municipal Corporation of Greater Bombay Case (supra), we have found that the question for consideration before the Court in the Municipal Corporation of Greater Bombay Case (supra) 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." (emphasis added)
41. Thereafter Sections 126 and 127 of Maharashtra RTP Act, 1966 were considered and in Girnar Traders vs. State of Maharashtra (supra) para 54, 55 and 56, Court said:
"54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owners property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corporation of Greater Bombay Case (supra). If the acquisition is left for a time immemorial in the hands of the concerned authority by simply making an application to the State Government for acquiring such land under the LA Act, 1894, then the authority will simply move such an application and if no such notification is issued by the State Government for one year of the publication of the draft regional plan under Section 126(2) read with Section 6 of the LA Act, wait for the notification to be issued by the State Government by exercising suo motu power under sub-section (4) of Section 126; and till then no declaration could be made under Section 127 as regards lapsing of reservation and contemplated declaration of land being released and available for the land owner for his utilization as permitted under Section 127. Section 127 permitted inaction on the part of the acquisition authorities for a period of 10 years for de-reservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the land owner for de-reservation. The steps towards commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation.
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 utilization 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 thereof 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.
56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilize the land for the purpose it is reserved in the plan in a given time or let the owner utilize the land for the purpose it is permissible under the Town Planning Scheme. The step taken under the Section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land, which Government may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition." (emphasis added)
42. Ultimately, Court held that no steps were taken within the prescribed time and, therefore, land stood deemed dereserved. In our view, even this authority helps the petitioners and goes against the proposition raised by respondents.
43. Question similar to one which has been raised before us then has been considered in Chairman, Indore Vikas Priadhikaran vs. Pure Industrial Coke and Chemicals Ltd. and others, (2007) 8 SCC 705 by a two Judges Bench of Supreme Court. The matter has arisen from the proceedings under Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (hereinafter referred to as "MP Act, 1973"). The aforesaid Act was enacted to make provisions for planning, development and use of land etc. and came into force on 16.04.1973. Under Section 38 of MP Act, 1973, by issuing a notification, Indore Vikas Pradhikaran (hereinafter referred to as "IVP") was established on 13.05.1977 while development area was already notified on 13.02.1974 which constituted 37 villages excluding villages Bicholi and Kanadia which were subject of dispute before Supreme Court. The notification pertaining to area was amended on 13.11.2000 and 115 villages were included including villages Bicholi and Kanadia. Later on 28.06.2002, 62 villages were deleted but villages Bicholi and Kanadia were retained. Thus on 23.11.2000 both these villages became part of development area under the authority of IVP. On 27.06.2003 a Draft Development Plan was submitted but it could not get sanctioned and returned by Government by notice dated 04.01.2005 directing IVP to make plan for projected population as in the year 2021 and submit to the Government. The notification under Section 38(1) of MP Act, 1973 in respect of Villages Bicholi and Kanadia however was issued only on 28.10.2005. Thereafter objections were invited and draft plan 2021 was published on 13.07.2006. It was challenged before High Court which was allowed by Division Bench vide judgment dated 06.03.2007. High Court allowed writ petition holding as under:
"(i) Unless a development plan for an area is published and comes into operation, a draft development scheme cannot be published by the Town and Country Development Authority under sub-section (2) of Section 50 of the Act.
(ii) Such a town development scheme cannot by itself without a development plan for the area restrict the right of a person to use his property in the manner he likes.
(iii) Although the notification issued by the Appellant-Authority had been constituted by the State Government only in respect of the area which was covered by the notification dated 13.02.1974, the draft development scheme prepared by it was ultra vires, so far as the said two villages are concerned, being beyond its territorial jurisdiction."
44. Supreme Court in Chairman, Indore Vikas Priadhikaran vs. Pure Industrial Coke and Chemicals Ltd. (supra) formulated following two questions for its consideration:
"(i) Whether having regard to notification dated 13.02.1974 vis-a-vis the expansion of the Indore Development Plan, the District Committee in exercise of its delegated power can automatically extend the area of operation of the appellant despite the notification constituting it by the State whereby and whereunder its area of operation was limited to the one covered by the notification dated 13.02.1974 ?
(ii) Whether the appellant authority can declare its intention in terms of Section 50 of the Act before the development attained finality. Competing Interest?"
45. Court recognized the fact that matter involves two competing interest. One, the interest of State and another is of general public. Similarly with respect of better living conditions and another right of property of an individual which is a constitutional right and not a fundamental right at the time when dispute was raised in that case. Court observed that though right to property is a constitutional and legal right but it clearly provides that no person shall be deprived of his property except in accordance with procedure prescribed in law. After examining the matter from various angles, Court, in para 101, held as under:
"101. Admittedly, the villages in question had been included by the State in its notification issued on 28.10.2005. Prior thereto, the said villages having not been included within the area of operation of the appellant authority, any action taken either by way of its intention to frame a town planning scheme or otherwise shall be wholly illegal and without jurisdiction. It would render its act in relation to the said villages a nullity."
46. Consequently, it upheld the judgment of High Court.
47. In Prakash R. Gupta vs. Lonavala Municipal Council and others 2008(8) Supreme 728 again the matter had arisen from Maharashtra RTP Act, 1966. Land was owned by Sri Prakash R. Gupta and it was reserved, in development plan for certain College but that Collage got disaffiliated. It was not acquired within 10 years as provided in Section 127. In this context the owner gave notice for dereservation but it was declined hence challenged the same in Bombay High Court but failed. Then it brought the matter before Supreme Court. Reversing High Court's judgment Supreme Court in para 5 said as under:
"5. It is not disputed that the land was not acquired within ten years from the date on which the final Regional plan or final Development plan came into force and no proceedings for acquisition of such land under the Land Acquisition Act were commenced within the aforesaid period of ten years. After the said period of ten years, the appellant, who was the owner of the land, served a notice on respondent No.1 as required by Section 127 calling upon the said authority to acquire the said land within six months or take steps within that period, but neither was the land acquired within the further period of six months nor were any steps taken to acquire it. Hence, in our opinion, the reservation lapsed and the land has to be released in favour of the appellant. The High Court, however, has taken the view that in view of Section 49 of the Act, there is no lapse of the reservation. We do not agree. In our opinion, the scheme contemplated by Section 49 is totally different from that contemplated by Section 127." (emphasis added)
48. In Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher and others, (2013) 5 SCC 627 a three Judges Bench of Supreme Court had an occasion to examine Section 127 of Maharashtra RTP Act, 1966 and the issue relating to lapse due to non acquisition of disputed land for 10 years and further six months from notice. The land in dispute was Gata No. 44/12 and 44/14, CTS No. 2141, measuring about 2 hectares and 40 ares, situte at Shrirampur Taluka, Shrirampur (Maharashtra). In the development plan prepared under Maharashtra RTP Act, 1966 sanctioned by Competent Authority on 09.8.1991 and came into force on 31.10.1991, it was reserved in for Primary School and Playground. After more than 11 years the owner sent a purchase notice dated 29.05.2003 under Section 127 of Maharashtra RTP Act, 1966 to Chief Officer of Municipal Council. However, Municipal Council passed resolution on 30.08.2003 giving sanction to initiate acquisition proceedings. The proceedings were initiated and challenged by owners in Writ Petition No. 4774 of 2006. Writ petition was allowed by a Division Bench of Bombay High Court. Municipal Council came to Supreme Court. An attempt was made to argue that there is a conflict between judgments in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association (supra) and Girnar Traders vs. State of Maharashtra (supra). Court said that there is no conflict at all and in both the cases Court emphasised that if any private land is shown as reserved, allotted or designated for any purpose specified in development plan, the same may be acquired within 10 years either by agreement or by violating the procedure prescribed under Act, 1894 and if proceedings for acquisition of land are not commenced within that period and a further period of six months from the date of service of notice under Section 127 of Maharashtra RTP Act, 1966, then the land shall be deemed to have been released from such reservation, allotment etc. Agreeing with the view taken in Girnar Traders vs. State of Maharashtra (supra), Court in para 42 of the judgment, in Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher (supra) said as under:
"21. We are further of the view that the majority in Girnar Traders (supra) 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." (emphasis added)
49. Lastly we come to the decision in Hasmukhrai V. Mehta vs. State of Maharashtra and others, (2015) 3 SCC 154 which has also arisen from Section 127 of Maharashtra RTP Act, 1966. Relying on earlier judgments in Municipal Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association (supra) and Girnar Traders vs. State of Maharashtra (supra), Court has taken a view in favour of owner and held that land stood released from reservation under Section 127 of Maharashtra RTP Act, 1966. These authorities, in our view, clinches the issues to be returned in favour of petitioners.
50. Now in the backdrop of aforesaid exposition of law as well as statutory provisions, we may examine the facts of this case. Admittedly Master Plan was enforced on 14.08.1996. No action was taken for acquisition of land in dispute which was reserved for use of Bus Stand/ Bus Termimus. A period of ten years was to be expired on 13.08.2006. It is true that first notice was served by petitioners on 18.01.2005 by which time 10 years period was not expired. Accordingly it was rightly replied by respondents that Section 54 of U.P. Act, 1973 was not applicable since 10 years period has not expired. Thereafter another notice was sent by petitioners on 17.08.2006 when 10 years period admittedly had already expired. It was open to respondents to initiate proceedings for acquisition within next six months i.e., upto 16.02.2007. The defence of respondents is that before expiry of aforesaid six months period next Master Plan had come into force, draft whereof was submitted on 22.02.2005 and State Government approved it on 03.10.2006. Therefore, 10 years period stood renewed or revived and the matter has to be examined in the light of next Master Plan approved by Government and not earlier one of 1996. We do not find it acceptable. It is not in dispute that with respect of land in dispute, there is no change in the Master Plan on 2021. When land was not acquired within 10 years in the Master Plan which came into force on 14.08.1996, Section 54 conferred a right upon land owner to serve a six months' notice and if no action is taken, there is a deemed provision of lapsing of reservation of land. The said statutory cannot be defeated only on the ground that in the meantime after service of notice, new Master Plan has been approved. Section 54 neither contemplates any principle of renewal or lapse of right accrued not the constitutional and legal right of petitioners to enjoy their property can be subjected to inaction by respondents for an indefinite period in the manner as has been suggested by respondents in the present case.
51. If such an interpretation, in our view, is accepted, the provisions permitting reservation of private land and power of acquisition may not remain constitutionally valid. It is not necessary for us to go into that aspect since, in our view, after service of notice on 17.08.2006 it was open to respondents to initiate proceedings within six months and having failed to do so, the deeming provision of Section 54(2) would apply and land in question would stand released. Section 54 of U.P. Act, 1973 which is an exception to the power of Eminent domain of State recognized under U.P. Act, 1973 would become redundant if what is argued by respondents is accepted. Such an interpretation, therefore, cannot be accepted.
52. In view of above, writ petition is allowed. Respondents are directed to take action on petitioners' application dated 12.03.2007 treating the land in question having released from reservation by virtue of Section 54(2) of U.P. Act, 1973 and pass appropriate order within two months from the date of production of a certified copy of this order. Petitioners shall be entitled to costs, which we quantify to Rs. 25,000/-.
Order Date :- 20.04.2020 AK Hon'ble the Chief Justice has nominated me to pronounce this judgment vide order dated 17.4.2020. Due to lock-down declared by the Central Government and Government of State of U.P., the judgment is pronounced by me being member of Division Bench today in Camber as per Rule 1 sub-clause (1) (2) and (3) of Chapter VII of the Allahabad High Court Rules, 1952.
Dated 20.04.2020 (Justice Virendra Kumar-II)