Mohibullah Niyamatullah & Ors. v. State of Maharashtra & Ors.

2) We have heard Mr. Harit, learned counsel for Petitioners, Ms. Kapadia, learned A.G.P. for Respondent No.1-State and Mr. Patwardhan, learned counsel for Respondent No. 3, perused entire record and the Affidavit dated 7th August 2024 filed by Mr. Shantaram T. Chaure, the Town Planner-II of Respondent No.3-Corporation.

3) Shorn of unnecessary details, the brief facts giving rise to the present Petition can be summarized as follows:-

3.1) The Petitioners are family members. They jointly own and possess the lands bearing Survey No. 116/4/B/1 situated at Golden Nagar, Malegaon, ad-measuring 0.211 H. & 1.382 H. respectively. The said lands were reserved for the purpose of ‘Parking’ as Site No. 261 and for ‘Garden’ as Site No. 262 in the Development Plans for the years 1986, 2006 and 2009. That, vide Notification dated 15th September 2006, the Respondent No.1 notified the said properties of the Petitioners as ‘reserved’ for the purpose of ‘Parking’ and ‘Ladies Garden’ in its revised Development Plan. It is the case of the Petitioners that, in a subsequent reservation of the said properties in the year 2006, the Respondent No.1 further reserved 0.211 H. of the said land for the purpose of ‘Parking’, which is reflected at Sr.No. 261 of the Table annexed to the Notification.

3.2) As the Respondents did not take any steps for acquisition of the said properties of the Petitioners for more than 10 years, as contemplated under Section 126 of the M.R.T.P. Act, the Petitioners through their Advocate issued a statutory Notice dated 16th July 2020, as contemplated under Section 127(1) of M.R.T.P. Act, calling upon the Respondents to initiate the process of acquisition by following the due process of law or to release the said property from reservation by adopting necessary steps in accordance with law. Record indicates that, the Petitioners to show their ownership and/or interest in the said property, had annexed all the necessary and relevant documents, such as, latest 7/12 Extracts; the Plan of the writ land; N.O.C. issued by the concerned Authority for Electricity Power connection; Shop Act Licence; Tax receipt issued by Respondent No.3, etc. to the said Notice. The said Notice was duly received by the Respondent No.3, the Planning Authority, on 17th July 2020 and the concerned Clerk of the Respondent No.3 has duly acknowledged the said Notice.

3.3) Despite service of the said Notice for a period of more than 24 months the Planning Authority i.e. Respondent No.3 did not take any steps for acquisition of the writ property. The Petitioners therefore filed present Petition on 5th January 2023 for the reliefs as noted hereinabove.

4) Mr. Shantaram T. Chaure, the Town Planner-II of Respondent No.3-Corporation has filed an Affidavit dated 7th August 2024. It admits that, the Corporation received notice dated 16th July 2020 under Section 127 of M.R.T.P. Act for release of the said writ property. That, its reply dated 16th September 2020, the Corporation requested the Petitioners to provide requisite documents with respect to their title/interest in the said land. It further notes that, the Petitioners failed to comply with the said requisition and therefore allege that the notice under Section 127 of M.R.T.P. Act is itself defective and ineffective. It further stated that, as the Petitioners failed to comply with the requisition dated 16th September 2020, the Petition is liable to be rejected. The Respondent No.3 has annexed the said communication/requisition dated 16th September 2020 to the said Affidavit dated 7th August 2024.

4.1) A bare perusal of the said communication/requisition dated 16th September 2020 indicates that, it was sent to the Petitioners’ Advocate by ordinary post. Since no receipt or acknowledgment is produced for effecting service on the Advocate for the Petitioners of the said communication/requisition dated 16th September 2020, we are unable to infer that, the said requisition/communication was infact served upon the Petitioners Advocate.

4.2) In its Affidavit-in-Rejoinder dated 12th November 2024, the Petitioner No.1 in para No.3(i) has categorically asserted the fact that, the purported letter dated 16th September 2020 was not received by their Advocate Mr. Manoj Harit. That, he has confirmed the said fact with his Advocate and his Office staff. That, the Respondent No.2 has failed to provide any evidence of either having posted the letter or having served it upon Advocate Mr. Manoj Harit or the Petitioners. Therefore the contention raised by the concerned Officer of Respondent No.3 that, it replied the notice dated 16th July 2020 by its requisition/communication dated 16th September 2020 appears to be a sham and moonlight plea adopted by it.

5) It be noted here that, to the notice dated 16th July 2020, under Section 127 of M.R.T.P. Act, issued by the Petitioners through their Advocate, the Petitioners had infact annexed the requisite documents clearly indicating their ownership and/or interest in the writ lands.

5.1) Section 127 of the M.R.T.P. Act prescribes that, “ … … … the owner or any person interested in the land may serve notice, along with 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; … … …” It is thus clear that, the owner or a person or any person interested in the concerned land may serve a notice along with the documents showing his title or interest in the said land only and not any irrelevant or other documents, which the Planning Authority or Appropriate Authority may call for. In the present case, record clearly reveals that, the Petitioners while issuing the notice under Section 127(1) of M.R.T.P. Act through their Advocate had taken necessary caution to annex the documents of their title and interest in the said land.

6) Despite increasing the period from 6 to 24 months from the date of service of the purchase notice under Section 127(1) of the MRTP Act, the Respondent No.3 has failed to take any effective steps to acquire the writ property. Perusal of record thus clearly discloses that, the Respondent No.3 has failed to take any effective steps to acquire the land of the Petitioners within the stipulated period, as contemplated under the provisions of the MRTP Act.

7) The Hon’ble Supreme Court in the case of Girnar Traders Vs. State of Maharashtra & Others, reported in (2007) 7 SCC 555, in para Nos. 54 to 58 has held as under:-

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 vs. Dr. Hakimwadi Tenants’ Assn., (1988 Supp SCC 55). 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 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 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 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. Subsection (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. 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.

7.1) The Hon’ble Supreme Court in the case of Shrirampur Municipal Council, Shrirampur Vs. Satyabhamabai Bhimaji Dawkher & Others, reported in (2013) 5 SCC 627, in para Nos.42, 43 & 46 has held as under:-

42. We are further of the view that the majority in Girnar Traders (2) Vs. State of Maharashtra, (2007) 7 SCC 555, 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.

43. The expression “no steps as aforesaid” used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the development plan/town planning scheme, etc., are not left high and dry. This is the reason why time-limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade’s interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300-A of the Constitution.

46. As a sequel to the above discussion, we hold that the majority judgment in Girnar Traders (2) lays down correct law and does not require reconsideration by a larger Bench. We further hold that the orders impugned in these appeals are legally correct and do not call for interference by this Court. The appeals are accordingly dismissed.

8) As noted earlier, despite service of notice dated 16th July 2020 on 17th July 2020 upon the Respondent No.3, the Planning Authority i.e. the Appropriate Authority, did not take any steps for acquisition of the writ lands till filing of the present Petition.

9) After applying the ratio laid down by the Hon’ble Supreme Court in the aforestated cases to the case in hand, we are of the considered view that, the Petition deserves to be allowed in terms of prayer clauses (b) & (c). The Petition is accordingly allowed and Rule is made absolute in terms of prayer clauses (b) & (c).

10) The State Government to notify the lapsing of reservation of the Petitioner’s land by publishing it in the Official Gazette, as per Section 127(2) of the MRTP Act within a period of six weeks from the date of uploading of the present Order on the Official website of the High Court of Bombay.

11) It is clarified that, the Petitioners will be entitled to proceed with the development of the property and the Respondents will not delay the granting of permissions as the notification in the Official Gazette is merely a ministerial act, as held by the co-ordinate Bench of this Court in the case of Arun Motiram Nimkar Vs. Municipal Corporation of City of Amravati & Ors., reported in 2013 SCC OnLine 739: (2013) 5 Bom CR 546.

12) All the concerned to act on an authenticated copy of this Judgment. ( KAMAL KHATA, J. ) ( A.S. GADKARI, J. )

SHIVAHAR KUMBHAKARN