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2013 DIGILAW 754 (BOM)

Dilip Shankar Khujat v. State of Maharashtra

2013-04-02

A.S.OKA, MRIDULA BHATKAR

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JUDGMENT A. S. OKA, J. On 14th August 2012, a notice was issued by this Court. While adjourning the Petition on 15th March 2013, we had put the learned counsel appearing for the parties to the notice that the Petition will be taken up for final disposal. 2. The third Respondent is the Tasgaon Municipal Council which is the Planning Authority within the meaning of Sub-section (19) of Section 2 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the Town Planning Act"). The third Respondent Tasgaon Municipal Council is the Planning Authority as it is a local authority within the meaning of Sub-section (15) of Section 2 of the Town Planning Act being a Municipal Council under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965 (hereinafter referred to as "the said Act of 1965"). 3. The Petitioners are the owners of the land bearing Survey No.208A/ 1 to 5 (hereinafter referred to as "the said lands"), situated within the limits of the third Respondent Municipal Council. 4. In exercise of powers conferred by Sub-section (1) of Section 31 of the Town Planning Act, the first Respondent State of Maharashtra sanctioned the development plan for the city of Tasgaon subject to modifications of minor nature as specified in the schedule appended to the notification. By the said notification, it was declared that 1st March 1993 shall be the date on which the said development plan shall come into force. 5. It is the case of the Petitioners that the said lands held by the Petitioners were shown reserved in the development plan for Municipal Naka and 30 meters wide ring road. It is contended that as the said lands were never notified for acquisition for more than ten years, on 6th April 2011, the Petitioners served a notice under Section 127(1) of the Town Planning Act to the Chief Officer of the third Respondent. It is contended that within the time of 12 months provided under Sub-section (1) of Section 127 of the Town Planning Act, no steps were taken for acquisition and, therefore, the reservation on the said lands is deemed to have lapsed. Therefore, various prayers are made in the Petition including a prayer for issuing a writ of mandamus for releasing the said lands from reservation. The Petitioners have prayed for declaration that the reservation stands lapsed. Therefore, various prayers are made in the Petition including a prayer for issuing a writ of mandamus for releasing the said lands from reservation. The Petitioners have prayed for declaration that the reservation stands lapsed. There is also a prayer for issuing a writ of mandamus for notifying the lapsing of the said reservation of the land in the official gazette. 6. An affidavit-in-reply has been filed by the sixth Respondent The Public Works Department of the State of Maharashtra through its Deputy Engineer Shri Ravikumar Ramrao Patil of Tasgaon, District - Sangli. In the reply, it is contended that the land bearing Survey No.208A owned by the Petitioners is reserved for the project of ring road. It is stated that by a letter dated 28th May 2012, the Executive Engineer, Public Works Department, called upon the Collector to intimate the amount of compensation payable to the Petitioners. It is stated that the Collector has submitted estimate of the compensation payable. It is stated that steps have been taken to measure the lands which are reserved and the measurement charges have been deposited. There is a separate reply filed by the third Respondent/Planning/Authority in which the fact that the notice under Section 127 of the Town Planning Act has been served to the third Respondent has not been disputed. It is contended that by passing a resolution, the third Respondent handed over possession of the required portion of the reserved land to the Public Works Department on 29th December 2001. It is stated that apart from the reservation for the project of ring road, there is a reservation bearing No.79 for establishing a Municipal Naka for collection of octroi. It is stated that as the levy of octroi has been already abolished, the requirement of establishing Municipal Naka may not survive. 7. The learned senior counsel appearing for the Petitioners has relied upon a decision of the Apex Court in the case of Girnar Traders (II) v. State of Maharashtra and Others (2007)7 SCC 555 ] : (2007 ALL SCR 2232]. 7. The learned senior counsel appearing for the Petitioners has relied upon a decision of the Apex Court in the case of Girnar Traders (II) v. State of Maharashtra and Others (2007)7 SCC 555 ] : (2007 ALL SCR 2232]. He submitted that the law laid down by the Apex court is that within 12 months from the date of service of the notice under Subsection (1) of Section 127 of the Town Planning Act, if declaration under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as "the said Act of 1894") read with Subsections (2) and (4) of Section 126 of the Town Planning Act is not made, reservation under the development plan lapses. He also fairly pointed out that the view taken in the case of Girnar Traders (II), (2011 ALL SCR 1838] (supra) is under consideration of a larger bench of the Apex Court. He pointed out that a Division Bench of this Court (to which one of us i.e. Shri A.S. Oka, J is a party) in Writ Petition No.3844 of 1997 has taken a view that in view of the pendency of the matter to the larger bench of the Apex Court, hearing of a Writ Petition in which reliance was placed on the case of Girnar Traders II, (2007 ALL SCR 2232] (supra) deserves to be posponed. He pointed out that when the said view was taken, attention of this Court was not invited to a decision of the Apex Court in the case of Fida Hussain and Others v. Moradabad Development Authority and Another (2011)12 SCC 615 J : (2011 ALL SCR 1838]. He also pointed out that the attention of the said Division Bench was not invited to the judgment and order dated 31st March 2012 passed by another Division Bench of this Court in Writ Petition No.3954 of 2006 which holds that notwithstanding pendency of the matter before the larger bench of the Apex Court, this Court will have to follow the law as it exists. He, therefore, submitted that this Petition will have to be heard and decided on merits. 8. The learned AGP appearing for the first and sixth Respondents as well as the learned counsel appearing for the third Respondent opposed the Writ Petition. He, therefore, submitted that this Petition will have to be heard and decided on merits. 8. The learned AGP appearing for the first and sixth Respondents as well as the learned counsel appearing for the third Respondent opposed the Writ Petition. One of the contentions raised is that in view of the pendency of the matter before the larger bench of the Apex Court, the hearing of this Petition be postponed. Secondly, it is pointed out that several steps were taken by the State Government for acquisition. The learned counsel appearing for the third Respondent Planning Authority submitted that the reservation is for the sixth Respondent Public Works Department. 9. We have carefully considered the submissions. It will be necessary to make a reference to Section 127 of the Town Planning Act which reads thus: "127. Lapsing of reservations (1) I f any land reserved, alloted 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 a declaration under sub-section (2) of (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect; and if within twelve months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan. (2) On lapsing of reservation, allocation or designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette." 10. (2) On lapsing of reservation, allocation or designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette." 10. In the facts of the case, there is no dispute regarding the reservation imposed on the said lands of the Petitioners under the development plan which came into force on 1st March 1993 and regarding the service of notice dated 6th April 2011 of the Petitioners under Sub-section (1) of Section 127 of the Town Planning Act. A copy of the notice annexed at Exhibit-B to the Petition shows that the notice was served to the third Respondent Council of 6th April 2011. The undisputed position which emerges from the reply affidavits of the State Government as well as the third Respondent Planning Authority is that a notification under Section 6 of the said Act of 1894 read with either Sub-section (2) or Sub-section (4) of Section 126 of the Town Planning Act in respect of the said lands has not been issued even till today. We may note here that under clause (c) of Sub-section (1) of Section 126 of the Town Planning Act, a Planning Authority is empowered to acquire a land reserved for any public purpose in development plan by making an application to the State Government for acquiring the same under the said Act of1894. In such event, either under Sub-section (2) or Sub-section (4) of Section 126, a declaration of the decision of the State Government that the lands specified are needed for the public purpose is required to be made in accordance with Section 6 of the said Act of 1894. Such a declaration is deemed to be a declaration under Section 6 of the said Act of 1894. 11. At this stage, a reference will have to be made to a decision of the Apex Court in the case of Girnar Traders (II), [2007 ALL SCR 2232] (supra) and in particular the majority view. It may be necessary to make a reference to what is held by the Apex Court in Paragraphs 56 to 61 of the said decision which read thus: "55. It may be necessary to make a reference to what is held by the Apex Court in Paragraphs 56 to 61 of the said decision which read thus: "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. 56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. The step taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land, which Government mayor may not accept. Any step which mayor 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. Any step which mayor 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 LA Act. 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 steps 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. 58. The MRTP Act does not contain any reference to Section 4 or Section 5-A of the LA Act. The MRTP Act contains the provisions relating to preparation of regional plan, the development plan, plans for comprehensive developments, town planning schemes and in such plans and in the schemes, the land is reserved for public purpose. The reservation of land for a particular purpose under the MRTP Act is done through a complex exercise which begins with land use map, survey, population studies and several other complex factors. This process replaces the provisions of Section 4 of the LA Act and the inquiry contemplated under Section 5-A of the LA Act. These provisions are purposely excluded for the purposes of acquisition under the MRTP Act. The acquisition commences with the publication of declaration under Section 6 of the LA Act. The publication of the declaration under sub-sections (2) and (4) of Section 126 read with Section 6 of the LA Act is a sine qua non for the commencement of any proceedings for acquisition under the MRTP Act. The acquisition commences with the publication of declaration under Section 6 of the LA Act. The publication of the declaration under sub-sections (2) and (4) of Section 126 read with Section 6 of the LA Act is a sine qua non for the commencement of any proceedings for acquisition under the MRTP Act. It is Section 6 declaration which would commence the acquisition proceedings under the MRTP Act and would culminate into passing of an award as provided in sub-section (3) of Section 126 of the MRTP Act. Thus, unless and until Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced. 59. There is another aspect of the matter. If we read Section 126 of the MRTP Act and the words used therein are given the verbatim meaning, then the steps commenced for acquisition of the land would not include making of an application under Section 126(1)(c) or the declaration which is to be made by the State Government under sub-section (2) of Section 126 of the MRTP Act. 60. On a conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the authorities under Clause (c) of Section 126 (1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to sub-section (2) of Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or other authority. 61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. 61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under Clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)( c); and (ii) declaration by the State Government on receipt of the application mentioned in Clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4)." 12. Thus, the view taken by the Apex Court is that the publication of a declaration under Sub-section (2) or Sub-section (4) of Section 126 of the Town Planning Act read with Section 6 of the said Act of 1894 is a sine qua non for commencement of any proceeding for acquisition under the Town Planning Act. The Apex Court held that unless and until Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced. The Apex Court held that steps for acquisition within the meaning of Subsection (1) of Section 127 would really commence when the State Government publishes a declaration under Section 6 of the said Act of 1894. 13. In the present case, admittedly, such a declaration has not been made within the period of 12 months provided under Section 127 of the Town Planning Act. Therefore, within the said period of 12 months, neither the said lands are acquired nor any steps have been taken by publication of declaration under Sub-section (2) or Sub-section (4) of Section 126 of the Town Planning Act. Therefore, the reservation as regards the said lands shall be deemed to have been lapsed. 14. Therefore, within the said period of 12 months, neither the said lands are acquired nor any steps have been taken by publication of declaration under Sub-section (2) or Sub-section (4) of Section 126 of the Town Planning Act. Therefore, the reservation as regards the said lands shall be deemed to have been lapsed. 14. At this stage, we may note here that a Division Bench of this Court (to which one of us Shri A.S. Oka, J is a party) by the order dated 19th July 2012 in Writ Petition No.3844 of 1997 noticed that the majority view in the case of Girnar Traders (II), [2007 ALL SCR 2232) (supra) is under consideration of a Larger Bench of the Apex Court and, therefore, deferred the hearing of a Writ Petition before it. 15. However, the attention of this Court at that time was not invited to the binding precedent in the form of the judgment and order dated 31st March 2012 passed by another Division Bench of this Court in Writ Petition No.3954 of 2006 (Harendra Bhikubhai Andhyru and others vs. The State of Maharashtra and other connected matters). The prayers made in the group of Writ Petitions were also based on the majority view in the case of Girnar Traders (II), [2007 ALL SCR 2232] (supra). An argument was specifically made in the said group of Writ Petitions that the hearing of the group of Writ Petitions should be deferred as the decision in the case of Girnar Traders (II), 12007 ALL SCR 2232] (supra) was under the consideration of a larger Bench of the Apex Court. This objection was specifically dealt with by a Division Bench of this Court in Paragraphs 7 and 8 of its judgment. The objection was overruled. Paragraphs 7 and 8 of the said decision read thus: "7. In the first place, we would deal with the argument that this Court must defer the decision because the question regarding interpretation of Section 127 of the Act is pending before a three Judges Bench of the Apex Court. In our opinion, this submission is devoid of merits. Indisputably, the decision of the Apex Court in Girnar Traders (II) (supra) is of three Judges Bench (larger Bench) of the Apex Court. The fact that minority opinion was been expressed in the said decision would make no difference. In our opinion, this submission is devoid of merits. Indisputably, the decision of the Apex Court in Girnar Traders (II) (supra) is of three Judges Bench (larger Bench) of the Apex Court. The fact that minority opinion was been expressed in the said decision would make no difference. It would still be considered as a decision of the three Judges Bench of the Apex Court and would be binding not only on this Court but also on the subsequent Division Bench of the Supreme Court of same or coequal number of Judges. The decision need not be of the Full Court or of a Constitution Bench of that Court. This legal position is restated in a recent decision of the Apex Court in the case of Fida Hussain & Others vs. Moradabad Development Authority and Anr., (2011) 12 SCC 615 (see para 23 thereof). This settled principle has been adverted to even in the Constitution Bench decision of the Apex Court in the case of State of Punjab and Anr. vs. Devans Modern Breweries Ltd. & Anr., (2004) 11 SCC 26 (see para 339 thereof). 8. In the circumstances, following the dictum of the apex Court in Girnar Traders (II) (supra), which is still a good law and has not been overruled by a larger Bench of the Supreme Court, we find no impediment in proceeding to decide these matters". (emphasis added) 16. The law laid down by the Apex Court in the case of Girnar Traders (II), [2007 ALL SCR 2232] (supra) still holds the field. Therefore, in view of Article 141 of the Constitution of India, the said law binds this Court and will have to be followed as held by the Division Bench of this Court in the case of Harendra Bhikubhai Adhyaru & Others v. The State of Maharashtra & Others in Writ Petition No.3954 of 2006 and other connected matters. A Division Bench of this Court (to which one of us i.e. Shri A.S. Oka, J is a party) in Writ Petition No.3844 of 1997 by order dated 19th July 2012 has taken a view that in view of the pendency of the matter to the larger bench of the Apex Court, hearing of a Writ Petition in which reliance was placed on the decision of Girnar Traders (II) needs to be postponed. We must note here that when the said order was passed, this Court has not considered the binding precedent in the case of Harendra Bhikubhai Adhyaru (supra). Hence, we will have to follow the binding precedent in the case of Harendra Bhikubhai Adhyaru (supra). 17. Now coming back to the facts of the present case, we may note here that no contention has been raised by the third Respondent Council that the notice dated 6th April 2011 is not a valid notice in terms of Section 127(1) of the Town Planning Act. Admittedly, the said notice was served after a lapse of 10 years from the date on which the development plan came into force. As we have held earlier, admittedly, no steps for acquisition within 12 months from the date on which the notice under Sub-section (1) of Section 127 of the Town Planning Act have been taken. Hence, consequences provided in Sub-section (1) of Section 126 of the Town Planning Act will follow and reservations in relation to the said lands under the sanctioned development plan shall be deemed to have lapsed. Hence, the Petition must succeed and we pass the following order: ORDER: (a) We hold that the reservations in relation to the said lands described in Clause (1) of Paragraph 3 of the Writ Petition under sanctioned development plan of Tasgaon which came into force on 1st March 1993 shall be deemed to have lapsed; (b) We direct the State of Maharashtra to notify the lapsing of reservation by an order published in the Official Gazette in accordance with Sub-section (2) of Section 127 of the Town Planning Act within a period of three months from today; (c) The rule is made absolute on above terms with no orders as to costs. Ordered accordingly