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Judgment
Sachin S. Deshmukh , J
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
Petitioners have put forth following prayers :
“A. The Hon’ble High Court may be pleased to issue a writ or direction or order in the nature of writ and thereby hold and declare that the reservation on the property of petitioners bearing Survey No.268 admeasuring 1 Hector 18 Are situated at Kinwat, Tq. Kinwat, District Nanded has lapsed in view of the inaction of the Respondents to acquire the property despite service of notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 and issue appropriate order for the said purpose;
B. The Hon’ble High Court may be pleased to direct the Respondents more particularly the Respondent No. 1 to forthwith issue Gazette notification about lapsing of reservation on the property of petitioners bearing Survey No.268 admeasuring 1 Hector 18 Are situated at Kinwat, Tq. Kinwat, District Nanded as contemplated by Section 127(2) of the Maharashtra Regional and Town Planning Act, 1966 and issue appropriate order for the said purpose;
C. Pending hearing and final disposal of the present Writ Petition, the Hon’ble High Court may be pleased to direct the Respondents more particularly the Respondent No.1 to forthwith issue Gazette notification about lapsing of reservation on the property of the petitioners bearing Survey No.268 admeasuring 1 Hector 18 Are situated at Kinwat, Tq. Kinwat, District Nanded as contemplated by Section 127 (2) of the Maharashtra Regional and Town Planning Act, 1966 and issue appropriate order for the said purpose;
D. Ad-interim relief in terms of prayer clause “C” may kindly be granted in favour of the Petitioners.
E. Any other suitable and equitable relief may kindly be granted in favour of the petitioners.”
The petitioners herein are the owners of Survey No.268 admeasuring 1 Hectare 18 R situated at Kinwat, Dist. Nanded for which Reservation Site Nos.32A and 32B respectively for the purpose of Sub-Divisional Office and Staff Quarters vis-a-vis housing of Dishoused from the area which was reserved to the extent of 1.18 Hectare situated within the limits of the Municipal Council, Kinwat, Dist. Nanded in relation to which development plan was submitted by the Municipal Council and eventually, a notification was issued on 31/10/2005 for the aforestated reservation.
Having issued the aforesaid notification on 31/10/2005, no steps, muchless effective, are undertaken by the Acquiring Body or the Requiring Body made any endeavour to ensure that the necessary steps as contemplated under law are undertaken and the process of acquisition, which stands commenced by virtue of notification dated 31/10/2005 is concluded. Thereafter, the petitioners issued a statutory notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (for short, “MRTP Act”) dated 18/04/2017 which is duly acknowledged by the Department of Town Planning, Nanded. In response to the said notice, the Assistant Director, Town Planning, Nanded has issued a communication dated 07/06/2017 referring to the notice issued by the petitioners herein, wherein, it was directed to submit a self-explanatory report accompanied with the original documents in relation to; i] Ownership, ii] The certified map of the land prepared by the Deputy Superintendent of Land Record and iii] Inward Register maintained by the Municipal Council in relation to purchase notice.
In the aforestated factual backdrop, eventually, the petition is presented before this Court on 31/08/2021 wherein the notice was caused upon the respondents herein on 08/09/2021. Accordingly, the respondents have caused their appearance. The response has been presented on behalf of respondent Nos.1 and 3 wherein the aforestated factual aspects, such as issuance of notification and purchase notice dated 18/04/2017 under Section 127 of the MRTP Act is not disputed. The only stand put-forth by the respondent Nos.1 and 3 is that the petitioners have not submitted measurement plan of their own land, which is reproduced as under :-
“I say and submit that, upon receipt of the said notice, the Assistant Director of Town Planning, Nanded has immediately communicated vide dtd. 7.06.2017 to the respondent No.6 i.e. Chief Officer, Municipal Council, Kinwat, to take the necessary steps within time limit in said matter.”
The only response which has been submitted is quoted as under :-
“Whereas the petitioners have not submitted measurement plan of their own land, due to which it is difficult to ascertain that, which exact part of their own land is affected by the aforesaid reservation. The further statement in affidavit-in-reply on behalf of respondent Nos.1 and 3 that against the significance in relation to it was further Municipal Council which was communicated by communication dated 07/06/2017 to take necessary steps within time limit in the said matter.”
Barring the aforesaid plea, there is no statement in the affidavit that the necessary steps as contemplated under the law were taken within the prescribed time frame.
So far as the Municipal Council is concerned although has caused appearance, however, has chosen not to present response to the pleadings raised in the petition.
Having considered the rival submissions, the following sequence of events is undisputed that; i] preparation of draft development plan by the Municipal Council in the year 2000, ii] issuance of Notification dated 31/10/2005 by the Department of Urban Development and iii] service of notice dated 18/04/2017 under Section 127 of the MRTP Act.
With the assistance of learned advocates for the respective sides, we have perused the paper book and its annexures. While considering the issue raised in the petition, the same is no more res integra in the light of the Judgment of the Hon’ble Apex Court in the case of Girnar Traders Vrs. State of Maharashtra and others, reported in (2007) 7 SCC 555, wherein the Hon’ble Apex Court has unequivocally held that in the wake of Section 127 of the MRTP Act the option 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 steps taken within time stipulated should be towards the acquisition of land. It is the step of the acquisition of land and not the step for acquisition of land. It is failure of the authorities to take steps which results in actual commencement of land acquisition, the same cannot be permitted to defeat the purpose and object of 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 step for acquisition cannot be said to be a step towards acquisition, much less an effective step.
To the contentions of the petitioners, support can be drawn from the observation of the Hon’ble Apex Court in Girnar Traders, (cited supra). It would be apt to reproduce Paragraph Nos. 54, 56 and 57 of Judgment rendered in the case of Girnar Traders (cited supra) by the Hon’ble Apex Court.
“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 owner’s property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corpn. of Greater Bombay case. If the acquisition is left for time immemorial in the hands of the authority concerned 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 landowner 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 dereservation of the land. Not only that, it gives a further time for either to acquire the land or to take steps for acquisition of the land within a period of six months from the date of service of notice by the landowner for dereservation. The steps towards commencement of the acquisition in such a situation would necessarily be the steps for acquisition and not a step which may not result into acquisition and merely for the purpose of seeking time so that Section 127 does not come into operation.
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.
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.”
It would further be appropriate to make necessary reference to Section 127 of the MRTP Act which clearly mandates that the land reserved, allotted or designated for a specified purpose as per the plan, such land has to be acquired within a period of 10 years from the date on which the original plan or final development plan comes into force, if such proceedings for acquisition of land as per the scheme provided under the MRTP Act are not undertaken for achieving the object, as contemplated under the said Act. The provisions being self-operative, the reservation stands lapsed after the expiry of period of 10 years, upon service of notice under Section 127 by the land owner. The prescribed time commences from issuance of final development plan as in the present case, it was notified on 31/10/2005 which eventually came to an end in the year 2015. Thus, it is apparent that no effective steps as contemplated under the law are undertaken by the respondents herein. Therefore, it will have to be regarded as respondents herein have failed to undertake the steps which are contemplated under the Statute. The failure to undertake effective steps as contemplated under Statute by the authorities, entails the owner of the land to seek relief of declaration, such land would be deemed to have been released from the reservation and the same became available to the owner for the purpose of development as is otherwise permissible in case of adjacent land under the Statute governing the said development. The time frame as provided under the Act is 24 months from the date of receipt of purchase notice under Section 127 of the MRTP Act unequivocally binds the Acquiring Body to take steps of acquisition and not towards the acquisition. As said herein above, it is always a step of the acquisition of land and not a step for acquisition of land. The authority having failed to take steps, much less the effective steps, which results in actual commencement of acquisition of land, as such, it is not open to the authority to defeat the very purpose and object of scheme of acquisition under the MRTP Act. Thus, in our considered opinion, the petitioner is entitled for the reliefs claimed in the petition. Therefore, Rule is made absolute in terms of Prayer Clauses (A) and (B). No order as to costs.
As a sequel of same, it is declared that the reservation provided under the development plan of Municipal Council, Kinwat in relation to the writ property stands lapsed and the writ property shall be available to the petitioners herein for the purpose of development as is permissible in case of adjacent land under the relevant plan.
The State Government is further directed to take steps and notify lapsing of reservation in the Official Gazette. The said exercise shall be undertaken and completed within a period of four months from today.