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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2906 OF 2013
(Arising out of SLP(C) No. 19003 of 2009)
State of Maharashtra …Appellant
versus
Bhakti Vedanta Book Trust and others …Respondents
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. Respondent No.1 is the owner of the land measuring 5300 sq. mtrs.
comprised in Survey No.72, Penkarpada, Mira Road, within the municipal
limits of Mira Bhayandar Municipal Corporation (hereinafter referred to as,
‘the Corporation’). In the Development plan prepared under the Maharashtra
Regional and Town Planning Act, 1966 (for short, ‘the 1966 Act’), which
was sanctioned on 14.5.1997 and was enforced on 15.7.1997, a portion of the
land belonging to respondent No.1 (2500 sq. mtrs.) was shown as reserved
for extension of Royal College of Arts, Science and Commerce run by the
Royal Society of Bombay (for short, ‘the Society’).
3. In December, 2005 the Corporation made an application to the District
Collector for initiation of the acquisition proceedings. The latter asked the
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Corporation to submit detailed proposal for facilitating the acquisition.
Thereupon, the Competent Authority prepared a detailed plan, which was
submitted to the Collector on 26.7.2006.
4. In the meanwhile, the Society filed Writ Petition No.4341/2005 for
issue of a direction to the State Government and the Corporation to expedite
the acquisition proceedings. The Division Bench of the High Court disposed
of the writ petition vide order dated 16.2.2006, the relevant portion of which
is extracted below:
“From the affidavit filed by Sanjay Adhav, Special Land
Acquisition Officer, the Learned G.P. points out that the
Municipal Corporation has already forwarded the necessary
documents to the Collector in the prescribed form. Considering
that, the Special Land Acquisition Officer to pass an award
within six months. It is further made clear that on the Special
Land Acquisition Officer calling on the petitioners to deposit the
compensation as computed by him, the same would be deposited
by the petitioners within four weeks of such demand. It is only
thereupon that the Special Land Acquisition Officer to proceed
to pass an award and, thereafter, to take steps to hand over
possession within one month after the award is passed. Rule
made absolute accordingly.”
5. Since the Special Land Acquisition Officer did not take steps in
furtherance of the directions contained in the aforesaid order, respondent
No.1 issued purchase notice dated 25.7.2007 under Section 127 of the 1966
Act, which was duly served upon the Corporation. After one year,
respondent No.1 submitted plan dated 28.7.2008 for construction of a library
building on the land owned by it. The same was rejected by the Competent
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Authority vide order dated 29.9.2008 on the ground that the land was
reserved for the college and the acquisition proceedings had already been
initiated.
6. Respondent No.1 challenged the rejection of its plan in Writ Petition
No.36/2009. The pleaded case of respondent No.1 was that reservation of
the land had lapsed and the reason assigned by the Competent Authority for
rejecting the building plan was legally untenable. In paragraphs 11 to 16 and
21 to 26 of the writ petition, respondent No.1 made the following averments:
“11. By their letter dated 28th April, 2006, the petitioners forwarded a copy of the aforesaid order of this Hon'ble Court dated
16th February, 2006 to the respondent No.1 and inter alia, requested it to demarcate the land area admeasuring 0.25 hectors to
enable the petitioners to comply with the aforesaid order of this
Hon'ble Court. Hereto annexed and marked Exhibit C is a copy of
the said letter dated 26th April, 2006.
12. The petitioners by their further letter dated 6th May, 2006 inter
alia, requested the respondent No.1 to expedite the process of demarcation and intimate in writing to enable the petitioners to comply with the aforesaid orders of this Hon'ble Court within the stipulated time. Hereto annexed and marked as Exhibit D is the copy of
the said letter dated 6th May, 2006.
13. By the letter dated May 31, 2006, the Advocates for the petitioners, after setting out the relevant fact inter alia requested the respondent No.2, to intimate the petitioners at the earliest the land demarcated and/or reserved for extension of Royal College failing
which the petitioners will not be in a position to comply with the
aforesaid order of this Hon'ble Court. Hereto annexed and marked
as Exhibit E is a copy of the said letter dated May 31, 2006.
14. The Advocates for the said Royal Society of Bombay, by their
letter dated 27th Jun3, 2006, inter alia called upon the petitioners to
remove the illegal structures purported to be standing on the said
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land. Hereto annexed and marked as Exhibit F is a copy of the said
letter dated 27th June, 2006.
15. The advocates for the petitioners by their letter dated June 29,
2006 replied to the aforesaid letter dated 27th June, 2006 of the Advocates for the said Royal Society. By the said letter, the advocates
for the petitioners, after setting out the relevant fact, inter alia informed the Advocates for the said Royal Society, that in the absence of demarcation of land to be allotted to the said Royal Society by the respondent No.1, the petitioners are not in a position to
comply with the aforesaid order of this Hon'ble Court. Hereto annexed and marked as Exhibit G is the copy of the said letter dated
June 29, 2006.
16. By a letter dated 26th June, 2006 the respondent No.1 after setting out some of the facts, inter alia, requested the Collector of
Thane, Thane to transfer the said property inferred to therein to the
municipal Corporation as early as possible. Hereto annexed and
marked Exhibit H is a copy of the said letter dated 28th June, 2008
in English translation along with its original Marathi copy.
21. It can be seen from the facts of the case that the Special Land
Acquisition Officer did not comply with the order of this Hon'ble
Court of making the award within six months.
22. In the circumstances aforesaid, the petitioners aforesaid a purchase notice dated 25th July, 2007 under Section 127 of the Maharashtra Regional and Town Planning Act to the respondent No.1 requiring the respondent No.1 to take steps for acquisition within six
months from the receipt of the said purchase notice, in accordance
with the Act failing which allow the petitioners to develop the said
land for the permissible user. This said purchase notice was received by the respondent No.1 on the same day. Hereto annexed
and marked as Exhibit J is a copy of the said purchase notice dated
25th July, 2007.
23. By a letter dated 18tn August, 2007, the respondent No.1 informed the petitioners that on 26th July, 2006, the respondent No.1
has submitted a proposal for land acquisition in respect of the petitioners land and hence rejected the petitioners said purchase notice.
Hereto annexed and marked as Exhibit K is a copy of the said letter
dated 18th August, 2007 in English translation along with its original Marathi copy together with said copy of the said letter dated
26th July, 2006 in English translation and original Marathi copy.
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No steps are taken to purchase the said portion of land within 6
months in terms of the notice dated 25th July, 2007.
24. The petitioners by their Architects letter dated 28tn July, 2006,
submitted to the respondent No.2 on 2nd August, 2008 inter alia
submitted four sets of proposed plan of the property bearing Survey
NO.237 p. of village Penkarpada, District Thane along with necessary documents for the proposed Library Building and requested the
respondent No.2 to approve the plan at the earliest. Hereto annexed
and marked as Exhibit L is a copy of the said letter dated 28th July,
2008.
25. On behalf of the respondent No.1, the respondent No.3 by the
communication dated 29th September, 2008 inter alia rejected the
application of the petitioners for development of the said plot of
land on the ground that part of the said plot of the land is for extension of college and is reserved for Royal College and in the absence
of NOC from the said Royal College, it is bound by the said reservation of the said plot of land for extension of college and it is not
possible to permit the development. Hereto annexed and marked as
Exhibit M is a copy of the said communication dated 29th September, 2008 in English translation along with its original Marathi
copy.
26. It is submitted that the action of the respondents in not sanctioning and granting the petitioners' proposal submitted to the respondent No.2 vide their Architects letter dated 28th July, 2008, for
construction of library building on the property bearing Survey
No.237 p. of village - Pankarpada, District Thane, Mira Road,
Thane and the communication dated 29th September, 2008 (hereinafter referred to as “the impugned communication”) issued by respondent No.3 rejecting the petitioners proposal is illegal and otherwise untenable and unsustainable in law on the following amongst
other grounds, which are taken without prejudice to one another.”
7. In the counter affidavits filed by respondent Nos. 6, 8-10, 12, 13, 15
and 16, it was pleaded that reservation of the land belonging to respondent
No.1 cannot be treated to have lapsed because the acquisition proceedings
had already commenced and in terms of the direction given by the High Court
in Writ Petition No.4341/2005, the Special Land Acquisition Officer was
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required to pass an award within the stipulated period. However, they did not
dispute the averments contained in various paragraphs of the writ petition,
which have been extracted hereinabove.
8. The Division Bench of the High Court relied upon the judgments of this
Court in Girnar Traders v. State of Maharashtra (2007) 7 SCC 555 and
Prakash R.Gupta v. Lonavala Municipal Council and others (2009) 1 SCC
514 and ruled that reservation of the land belonging to respondent No.1 will
be deemed to have lapsed because the same was neither acquired nor steps
were taken for that purpose within six months of the receipt of purchase
notice.
9. We have heard learned counsel for the parties and perused the record.
Section 126 of the 1966 Act, which provides for the acquisition of land
required or reserved for any of the public purposes specified in any plan or
scheme prepared under the Act and Section 127 of the 1966 Act, which
envisages lapsing of reservation in certain contingencies read as under:
“Section 126. Acquisition of land required for public purposes
specified in plans. - (1) When after the publication of a draft Regional Plan, a Development or any other plan or town planning
scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time the
Planning Authority, Development Authority, or as the case may be,
any Appropriate Authority may, except as otherwise provided in
section 113A acquire the land,-
(a) by an agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner or the
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lessee, subject, however, to the lessee paying the lessor or
depositing with the Planning Authority, Development Authority or
Appropriate Authority, as the case may be, for payment to the
lessor, an amount equivalent to the value of the lessor’s interest to
be determined by any of the said Authorities concerned on the basis
of the principles laid down in the Land Acquisition Act, 1894, Floor
Space Index (FSI) or Transferable Development Rights (TDR)
against the area of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space Index or
Transferable Development Rights against the development or
construction of the amenity on the surrendered land at his cost, as
the Final Development Control Regulations prepared in this behalf
provide, or
(c) by making an application to the State Government for acquiring
such land under the Land Acquisition Act, 1894,
and the land (together with the amenity, if any, so developed or
constructed) so acquired by agreement or by grant of Floor Space
Index or additional Floor Space Index or Transferable Development
Rights under this section or under the Land Acquisition Act, 1894,
as the case may be, shall vest in the Planning Authority.
Development Authority, or as the case may be, any Appropriate
Authority.
(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for the
public purpose therein specified, or if the State Government (except
in cases falling under section 49 and except as provided in section
113A) itself is of opinion that any land in any such plan is needed
for any public purpose, it may make a declaration to that effect in
the Official Gazette, in the manner provided in section 6 of the
Land Acquisition Act, 1894 (1 of 1894), in respect of the said land.
The declaration so published shall, notwithstanding anything
contained in the said Act, be deemed to be a declaration duly made
under the said section:
Provided that, subject to the provisions of sub-section (4), no such
declaration shall be made after the expiry of one year from the date
of publication of the draft Regional Plan, Development Plan or any
other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 6, the
Collector shall proceed to take order for the acquisition of the land
under the said Act; and the provisions of that Act shall apply to the
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acquisition of the said land, with the modification that the market
value of the land shall be,-
(i) where the land is to be acquired for the purposes of a new town,
the market value prevailing on the date of publication of the
notification constituting or declaring the Development Authority for
such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority, the market value prevailing on the date of
publication of the notification of the area as an undeveloped area;
and
(iii) in any other case the market value on the date of publication of
the interim development plan, the draft development plan, or the
plan for area or areas for comprehensive development, whichever is
earlier, or as the case may be, the date or publication of the draft
town planning scheme:
Provided that, nothing in this sub-section shall affect the date for
the purposes of determining the market value of land in respect of
which proceedings for acquisition commenced before the
commencement of the Maharashtra Regional and Town Planning
(Second Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this subsection, the market value in respect of land included in any
undeveloped area notified under subsection (1) of section 40 prior
to the commencement of the Maharashtra Regional and Town
Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall
be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to subsection (2) and in subsection (3), if a declaration is not made within
the period referred to in subsection (2) or having been made, the
aforesaid period expired at the commencement of the Maharashtra
Regional Town Planning (Amendment) Act, 1993, the State
Government may make a fresh declaration for acquiring the land
under the Land Acquisition Act, 1894 (I of 1894), in the manner
provided by sub-sections (2) and (3) of this section, subject to the
modification that the market value of the land shall be the market
value at the date of declaration in the Official Gazette made for
acquiring the land afresh.
Section 127. Lapsing of reservation –
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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 (1 of 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 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.”
10. The above-reproduced provisions were considered by this Court in
Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’
Association 1988 (Supp.) SCC 55. The facts of that case were that the Planning
Authority had published a draft Development plan in respect of ‘D’ ward
showing the property belonging to late Dr. Eruchshaw Jamshedji Hakim as
reserved for recreation ground. The final Development plan was made effective
from 7.2.1967. However, no action was taken for the acquisition of land. The
owner served purchase notice dated 1.7.1977 on the Commissioner of the
Corporation. After about 6 months, the Corporation passed resolution dated
10.1.1978 for the acquisition of land and sent an application to the State
Government for taking necessary steps. Thereupon, the State Government issued
Notification dated 7.4.1978 under Section 6 of the Land Acquisition Act, 1894
(for short, ‘the 1894 Act’). The writ petition filed by Dr. Hakimwadi Tenants’
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Association questioning the notification was allowed by the learned Single Judge
of the Bombay High Court, who held that the acquisition proceedings
commenced by the State Government under Section 126(2) of the 1966 Act at
the instance of the Planning Authority were not valid because steps were not
taken for the acquisition of land under Section 126(1) of the 1966 Act read with
Section 6 of the 1894 Act within the prescribed time. The learned Single Judge
observed that the period of six months prescribed under Section 127 of the 1966
Act began to run from the date of service of purchase notice and the Corporation
had to take steps to acquire the property before 4.1.1978, which was not done.
The Division Bench of the High Court approved the view taken by the learned
Single Judge and held that the most crucial step was the application to be made
by the Corporation to the State Government under Section 126(1) of the 1966
Act for the acquisition of the land and such step ought to have been taken within
the period of six months commencing from 4.7.1977. This Court agreed with the
counsel for the Corporation that the words ‘six months from the date of service
of such notice’ used in Section 127 of the 1966 Act were not susceptible to a
literal construction, but observed:
“8. ……………………….it must be borne in mind that the
period of six months provided by Section 127 upon the expiry of
which the reservation of the land under a Development Plan lapses,
is a valuable safeguard to the citizen against arbitrary and irrational
executive action. Section 127 of the Act is a fetter upon the power
of eminent domain. By enacting Section 127 the legislature has
struck a balance between the competing claims of the interests of
the general public as regards the rights of an individual.”
(emphasis supplied)
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The Court then made detailed analysis of Section 127 of the 1966 Act and
held:
“10. Another safeguard provided is the one under Section 127 of
the Act. It cannot be laid down as an abstract proposition that the
period of six months would always begin to run from the date of
service of notice. The Corporation is entitled to be satisfied that the
purchase notice under Section 127 of the Act has been served by
the owner or any person interested in the land. If there is no such
notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development
plan of having lapsed. It a fortiori follows that in the absence of a
valid notice under Section 127, there is no question of the land becoming available to the owner for the purpose of development or
otherwise. In the present case, these considerations do not arise.
We must hold in agreement with the High Court that the purchase
notice dated July 1, 1977 served by Respondents 4-7 was a valid
notice and therefore with the failure of the appellant to take any
steps for the acquisition of the land within the period of six months
therefrom, the reservation of the land in the Development Plan for a
recreation ground lapsed and consequently, the impugned notification dated April 7, 1978 under Section 6 of the Land Acquisition
Act issued by the State Government must be struck down as a
nullity.
11. Section 127 of the Act is a part of the law for acquisition of
lands required for public purposes, namely, for implementation of
schemes of town planning. The statutory bar created by Section 127
providing 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 date of service of the purchase notice, is an integral part of the machinery created by which acquisition of land takes place. The word “aforesaid” in the collocation of
the words “no steps as aforesaid are commenced for its acquisition”
obviously refer to the steps contemplated by Section 126(1). 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-
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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 subsection (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 supplied)
11. The same issue was again considered in Girnar Traders (II). S.P. Building
Corporation was the owner of a piece of land bearing City Sy. No. 18/738
admeasuring about 5387.35 square yards situated at Carmichael Road, Malabar
Hill Division, Mumbai. The Development plan prepared by Bomba Municipal
Corporation was sanctioned by the State Government on 6.1.1967 and was
enforced on 7.2.1967. The land belonging to S.P. Building Corporation was
notified as “open space and children’s park”. After coming into force of the
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1966 Act, the landowners served notice under Section 127 of that Act for dereservation of the land. Two similar notices were issued by S.P. Building
Corporation on 18.10.2000 and 15.3.2002. After about eight months, the State
Government issued notification dated 20.11.2002 under Section 126(2) and (4)
of the 1966 Act read with Section 6 of the 1894 Act. Writ Petition No.353/2005
filed by S.P. Building Corporation questioning the notification issued by the
State Government was dismissed by the Division Bench of the High Court by
observing that Resolution dated 9.9.2002 passed by the Improvement Committee
of the Municipal Corporation would constitute a step as contemplated by Section
127 of the 1966 Act. The Division Bench further held that Section 11A of the
1894 Act, as amended, is not applicable to the proceedings initiated for the
acquisition of land under the 1966 Act. Civil Appeal No.3922/2007 filed by
S.P. Building Corporation was decided by the three Judge Bench along with
Civil Appeal No.3703/2003 - Girnar Traders v. State of Maharashtra. Speaking
for the majority, P.P. Naolekar, J., referred to the relevant provisions of the 1966
Act including Sections 126 and 127, and observed:
“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.
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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 dereservation 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.
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 utilise
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 utilised.”
(emphasis supplied)
Naolekar, J. then referred to the judgment in Dr. Hakimwadi Tenants’
Association (supra) and observed:
“52. ………….Thus, after perusing the judgment in Municipal
Corpn. of Greater Bombay case we have found that the question for
consideration before the Court in Municipal Corpn. of Greater
Bombay case 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.
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53. The observations of this Court regarding the linking of word
“aforesaid” from the wordings “no steps as aforesaid are commenced for its acquisition” of Section 127 with the steps taken by
the competent authority for acquisition of land as provided under
Section 126(1) of the MRTP Act, had no direct or substantial nexus
either with the factual matrix or any of the legal issues raised before
it. It is apparent that no legal issues, either with respect to interpretation of words “no steps as aforesaid are commenced for its acquisition” as stipulated under the provisions of Section 127 or any
link of these words with steps to be taken on service of notice, were
contended before the Court. Thus, observations of the Court did not
relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in
light of the aforementioned judicial pronouncements, which have
well settled the proposition that only the ratio decidendi can act as
the binding or authoritative precedent, it is clear that the reliance
placed on mere general observations or casual expressions of the
Court, is not of much avail to the respondents.
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 utilisation 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
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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.
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 may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition.
57. It may also be noted that the legislature while enacting Section 127 has deliberately used the word “steps” (in plural and not in
singular) which are required to be taken for acquisition of the land.
On construction of Section 126 which provides for acquisition of
the land under the MRTP Act, it is apparent that the steps for acquisition of the land would be issuance of the declaration under
Section 6 of the LA Act. Clause (c) of Section 126(1) merely
provides for a mode by which the State Government can be requested for the acquisition of the land under Section 6 of the 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
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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. 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. 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-sec-
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tion (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).”
(emphasis supplied)
12. Recently, another three Judge Bench, of which both of us were
members, considered the scope of Sections 126 and 127 of the 1966 Act in
the Civil Appeal arising out of SLP(C) No.9934 of 2009 Shrirampur
Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher and
others and connected matters and reiterated the view expressed by the
majority in Girnar Traders v. State of Maharashtra (supra).
13. In the last mentioned judgment, the Court emphasized that if any
private land is shown as reserved in the Development plan, the same can be
acquired within 10 years either by agreement or by following the procedure
prescribed under the 1894 Act and if proceedings for the acquisition of the
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 the 1966 Act,
reservation will be deemed to have lapsed and the land will be available for
development by the owner.
14. By applying the ratio of the above-noted judgments to the facts of this
case, we hold that the High Court did not commit any error by declaring that
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reservation of the land owned by respondent No.1 had lapsed and the rejection
of its application for construction of library building was legally unsustainable.
Consequently, the appeal is dismissed.
……..…..………………..J.
[G.S. Singhvi]
New Delhi, ……..…..
………………..J.
April 4, 2013 [H.L. Gokhale]
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