Umesh Prabhudas Patel Vs the Commissioner, Nashik Muncipal Corpn. and Ors.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 7512 OF 2006

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 Shri Umesh Prabhudas Patel ] .. Petitioner

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 Versus

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 1. The Commissioner, Nashik Municipal ]
 Corporation & 3 ors. ] .. Respondents

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 Mr. P.N. Joshi for the petitioner.

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 Mr. V.A. Gangal for the respondents No.1 and 2.

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 Mr. R.D. Rane, GP, for the respondents No.3 & 4.

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CORAM: S.B. MHASE &
D.G. KARNIK, JJ.

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DATED: 30TH OCTOBER, 2007

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P.C. :

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 1. Rule. Returnable forthwith. By consent of

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 the parties, called for hearing.

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 2. By this petition, the petitioner prays for a

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 declaration that the Reservation No.107-A reserving the
 land of the petitioner bearing survey No.665 for the
 purpose of a High School made in the Development Plan of
 Nashik Municipal Corporation be declared lapsed on
 account of respondent No.1 - Nashik Municipal
 Corporation not taking the steps required for

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 : 2 :

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 acquisition of the property under Section 127 of the
 Maharashtra Regional Town Planning Act, 1966 (for short
 "MRTP Act").

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 3. The Development Plan for Nashik Municipal
 Corporation area was sanctioned by the Government on
 22nd June, 1993, and came into force with effect from
 16th November, 1993. In the said Development Plan, the
 petitioner’s property was shown as reserved for the
 purpose of a High School under Reservation No.107-A.
 For ten years of commencement of the Development Plan,
 the respondent No.1-Corporation did not take any steps
 for acquisition of the property and its use for the
 public purpose for which it was reserved. The
 petitioner, therefore, served a notice under section 127
 of the MRTP Act on the respondent No.1 on 21st May,
 2004. Respondent No.1 thereafter convened a meeting of
 its Standing Committee to consider the said notice. The
 Standing Committee of respondent No.1-Corporation, by a
 resolution dated 5th November, 2004, resolved to acquire
 the petitioner’s property. Soon thereafter, the
 respondent No.1 sent a copy of the resolution to the
 Collector, Nasik with a request to commence proceedings
 for acquisition of the petitioner’s property. It is not
 clear what steps were thereafter taken by the respondent
 No.1-Corporation or the Collector in that matter. The

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 : 3 :

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 fact, however, remains that till the date of filing of
 this petition and even till today, no declaration under
 section 6 of the Land Acquisition Act has been issued.
 No declaration under section 6 of the Land Acquisition
 Act has been made and no Notification has been issued by
 the Government regarding the acquisition of the
 petitioner’s property.

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 4. Recently, in M/s. Girnar Traders Vs. State
of Maharashtra & ors. 2007 (3) CCC 5 (SC), a

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 three-Judge bench of the Supreme Court after considering
 the relevant provisions of the MRTP Act has held:

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 "32. 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 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
towardsacquisition would really commence

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 : 4 :

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whentheState Government permits the
acquisition and as a result thereof publishes
thedeclarationunder Section 6 oftheLA
Act.

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 33. The MRTP Act does not contain any
 reference to Section 4 or Section 5A 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 5A 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 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
thestepsfor acquisition are commenced.
 (underlining supplied)

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 4. It is clear from the aforementioned passage

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 that taking of the steps under section 127 of the MRTP
 Act contemplates making of declaration under section 6
 of the Land Acquisition Act. Unless that is done, it
 cannot be said that steps contemplated by section 127 of

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 : 5 :

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 the MRTP Act are taken. In the present case, since that
 has not been done and no steps have been taken within
 the statutory period, the reservation has lapsed. The
 Writ Petition is, therefore, required to be allowed.
 For these reasons, Writ Petition is allowed and Rule is
 made absolute in terms of prayer clause (a), which reads
 thus:

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 "(a) Issue an appropriate Writ/Order,
 directing the Respondents to declare that the
 reservation of the land belonging tot he
 Petitioner being Reservation No.107/A for
 High School as declared by the Nashik
 Municipal Corporation in its Development Plan
 stands lapsed on account of failure of taking
 any steps after Statutory Notice under
 Section 127 of the Town Planning Act has been
 served upon them.

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 5. Mr. V.A. Gangal, learned counsel for the
 respondents No.1 and 2 submit that respondents Nos.1 and
 2 want to challenge this order before the Supreme Court
 and, therefore, implementation of the order be stayed.
 Since we have relied upon the most recent decision of
 the Supreme Court itself, there is no question of
 granting any stay. The request is, therefore, rejected.

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 Sd/- Sd/-

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 [D.G. KARNIK, J.] [S.B. MHASE, J.]

Umesh Prabhudas Patel v. the Commissioner, Nashik Muncipal Corpn. and Ors.

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Umesh Prabhudas Patel v. the Commissioner, Nashik Muncipal Corpn. and Ors.

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