JUDGMENT
R.G. Deshpande, J.
1. This petition raises an important question pertaining to the provisions of the Maharashtra Regional and Town Planning Act, 1966, and the provisions of the Land Acquisition Act, 1894, precisely relating to the provisions of Sections 126 and 127 of the M. R. T. P. Act. If for 10 years from the date of final publication of the Development Plan, the land reserved is not acquired by acquiring body or the authority for which it is to be acquired but before issuance of the Notice under Section 127 of the M. R. T. P. Act by the owners, some steps are taken by the acquiring body which thereafter are continued, whether in such a case could be it said that the reservation is lapsed in accordance with the provisions of that Act.
2. The facts, in short, necessary can be narrated as under :
In the year 1977, Survey No. 114, area 0.93 hectre of mouza Chikhali belonging to the petitioners and their brothers and sisters, was reserved for the purposes of Agricultural Produce Market Committee, Chikhali Vide Vikas Yojana Shashan Adhisuchana No. TPS-2676-2053 Pudi – 5 dated 6-1-1977. This was strictly in pursuance of the final development plan published, which had come into force on 17-2-1977. Facts further reveal that along with Survey No. 149, Survey No. 150 was also reserved by respondent No. 2 i.e. District Town Planning Officer, Buldhana, in the same year and the said reservation was appropriately notified in the Gazette by the authority concerned.
3. In spite of this, such reservation having been so published, right from the year 1977 to be precise from February 1977, the respondent No. 5 i.e. Agricultural Produce Market Committee, Chikhali the acquiring body sat tight over the matter and did not take any steps by moving respondents 3 and 4 i.e. Collector, Buldhana and Sub-Divisional Officer/Special Land Acquisition Officer, Buldhana, respectively for acquisition of the land in question i.e. Survey No. 114 of the petitioners and their brothers and sisters.
4. It is clear from the record, 10 years lapsed on 12-2-1987. However, according to the petitioners, since no steps were taken, the said reservation could be deemed to have been lapsed and the petitioners, therefore, served a Notice under Section 127 of the Act to respondent No. 2 to de-reserve the said land which otherwise was under acquisition for the purpose of respondent No. 5. The notice issued under Section 127 is dated 18-12-1989 i.e. in any case about 2 years and 10 months after the lapse of alleged 10 years from the date of final development plan. This notice dated 18-12-1989 was sent by the petitioners through their Advocate Shri N. S. Bade and it was addressed to the District Town Planning Officer, Buldhana. Through this notice, the petitioners expressed that since 10 years had lapsed and no steps towards acquisition were taken by the respondents in any manner including by respondent No. 5, the petitioners thereby offered respondents to purchase the same and to take appropriate steps within the stipulated time in accordance with the section else same be released from acquisition or be de-reserved in accordance with the provisions of the Act. The contention of the petitioner is that in spite of the service of this Notice on the District Town Planning Officer i.e. respondent No. 2, no appropriate steps were taken by any of the respondents. Petitioners further pointed out that a copy of this Notice was also forwarded to the Agricultural Produce Market Committee, Chikhali i.e. respondent No. 5 for information, which was received by respondent No. 5 on 19-12-1989. Shri Najbile, learned advocate appearing on behalf of the petitioners in the set of facts and circumstances, contended that in spite of the notice having been served on respondent No. 5, no steps were taken within six months of the receipt of that notice by respondent Nos. 2 and 5 and, therefore, in any case the reservation could be declared to have been lapsed and it needed to be de-reserved and returned back to the owners and the owners were at liberty to enjoy the property in the manner in which they wanted.
5. Shri Mujumdar, learned A. G. P. appearing on behalf of the respondents 1 to 4 vehemently contended that the Notice which is contemplated under Section 127 of M.R.T. P. Act, is to be served on the Planning Authority or the Development Authority or Appropriate Authority. According to Shri Mujumdar, respondent No. 2 could not be said to be a Planning Authority or a Development Authority or even for that purposes even Appropriate Authority. According to Shri Mujumdar, the Notice should have been served on respondent No. 5 for whose benefits the land was to acquire. Shri Mujumdar, therefore, contended that even though the Notice was served on respondent No. 2 – Town Planning Officer, that could not be said to be a Notice on an Appropriate Authority and it is no Notice in law. Shri Mujumdar, therefore, further contended that the question of initiation of any steps towards acquisition and that too within a period of six months as contemplated under Section 127 did not arise and according to him, the petition deserves to be dismissed on this ground. We wish not to give our opinion at this stage as this point will have to be taken into consideration strictly in the background of the facts of this case. We cannot slightly brush aside the fact that the copy of this Notice dated 18-12-1989 though is not addressed to respondent No. 5 – Agricultural Produce Market Committee, Chikhali, copy of the same is definitely forwarded to respondent No. 5- Agricultural Produce Market Committee and it is not in dispute before us that respondent No. 2 as well as respondent No. 5, both have received the same. In our view, therefore, assuming for the sake of arguments that respondent No. 2 could not be said to be Appropriate Authority that by itself would not oust the petitioners from the Court as in our view the acquiring body i.e. respondent No. 5 was made well aware about the intention of the petitioners and this is not a fact which is disputed before us and in view of this we do not intend to have a short cut in the matter by observing that Notice is not served on Appropriate Authority.
6. The crux of the matter is that respondent No. 5 Agricultural Produce Market Committee. Chikhali, on December 6, 1989, had passed a Resolution whereby the Agricultural Produce Market Committee had resolved to request the respondent No. 1 State Government for acquiring the land from Survey No. 114 belonging to the petitioners and his brothers for the purposes of the respondent No. 5 Agricultural Produce Market Committee, Chikhali, as it was very much convenient and adjoining to the present establishment of respondent No. 5. To take necessary steps in the matter, the Agricultural Produce Market Committee by the said Resolution also empowered Shri T.S. Chouhan, Secretary of the respondent No. 5 to take all necessary steps. It is clear from the Resolution of the respondent No. 5 dated 6-12-1989 that this could not be said to be a step taken by the respondent No. 5 well within 10 years from the date of final publication of development plan which is dated 13-2-1977. However, at the same time, the Court will have to be keep in mind that for those 10 years no steps whatsoever were taken by the petitioners also and about 2 years and 10 months even thereafter the petitioners were sitting calm and quite without bothering about the acquisition proceedings in any manner. It was, for the first time, on 18-12-1989, the petitioners served a Notice on respondent No. 2, copy of which as observed earlier, was served on respondent No. 5.
7. From the record it is also clear that after issuance of the Notice there did not appear to be any positive steps which could be said to have been taken by respondents 1 to 5. However, we see that on 24-1-1990 respondent No. 5 forwarded a letter to the Collector, Buldhana – respondent No. 3 thereby requesting respondent No. 3 that the land of the petitioners which was reserved for extension of the Agricultural Produce Market committee Yard was required as the activities of the Agricultural Produce Market Committee had increased a lot. Respondent No. 5, therefore, by this letter requested the Collector that in pursuance of the Resolution passed by the Agricultural Produce Market Committee on 6-12-1989, necessary steps be taken for acquisition of the said land for the purposes of the Agricultural Produce Market Committee. Copy of the Resolution dated 6-12-1989 was also forwarded to the Collector along with the above said letter dated 24-1-1990.
8. Respondent No. 3 Collector, in his turn, by his letter dated November 27, 1992, directed the Sub-Divisional Officer, Buldhana, that the petitioner i.e. the owners of the land since had served Notice dated 18-12-1989 as was made known to the Collector by the Development Officer by his letter dated 27-11-1992 and since respondent No. 5 – Agricultural Produce Market Committee had already passed a Resolution dated 6-12-1989, the Special Land Acquisition Officer was directed to take immediate steps for acquisition in accordance with Section 126(4) of the Act.
9. Having these facts, clear before us, it would be appropriate for us to refer to the relevant provisions of the Act. Acquisition proceedings under the present Act can be said to have been initiated by the State Government in accordance with Section 125. Section 125 deals with compulsory acquisition of land needed for purposes of Regional Plan Development Plan or Town Planning etc.. In pursuance of the provisions of Section 125, it is clear that if the land is reserved in accordance with this provision, it has to be deemed to have been strictly for public within the meaning of the provisions of The Land Acquisition Act, 1894. Section 126 is divided into various sub-sections and sub clauses thereof. Section 126 deals with the acquisition of land required for public purposes specified in the plans. After the publication of a draft Regional Plan or 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 113(A) acquire the land …………… Clauses (a), (b) and (c) of Sub-section (1) of Section 126 of the Act deal with these three methods of acquiring land. Clause (a) deals with acquisition by agreement by paying an amount agreed to the owner; (b) talks about acquiring of the land in lieu of any such amount by granting the land owner or the lessee………….; and (c) specifically deals with the acquisition by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894. For the purposes of the present case, we are more concerned with this Clause (c) of Sub-section (1) of Section 126. Rest of the steps which are required to be taken, are narrated in Sub-sections (2) and (3) of Section 126 of the Act. Sub-section (4) is another provision with which we are more concerned here. Sub-section (4) Section 126 is an under :
“Notwithstanding anything contained in the proviso to Sub-section (2) and Sub-section (3), if a declaration is not made within the period referred to in Sub-section (2) (or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1993), the State Government may make a fresh declaration for acquiring the land under the Land Acquisition Act, 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).”
Sub-section (4) specifically directs that notwithstanding anything contained in Sub-sections (2) and (3) of Section 126, if the declaration is not made within the period stipulated under Sub-section (2), or if the period has expired on the commencement of the M. R. T. P. Act, the State Government is yet competent to make afresh declaration for acquiring land under the Land Acquisition Act, 1894, in the manner provided in Sub-sections (2) and (3) subject to the modifications 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. In short, this Sub-section (4) can be said to be a section pointing out entitlement of the owner to get compensation at a particular price and particular rate prevailing on the date of its publication, if it is afresh one.
10. In the background of this provisions of Section 126 which deals with the lapsing of the reservation do definitely gather importance. In accordance with these provisions, if the reserved, allotted or designated land is not acquired either by an agreement within 10 years from the date on which the final development plan or final development plan comes into force or if the proceedings for acquisition of such land under M. R. T. P. Act or under the Land Acquisition Act, are not commenced within such period, it is a choice given to the owner or any person interested in the land to 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 the service of that 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 have been released from said 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.
11. Shri Najbile, learned counsel appearing on behalf of the petitioners, heavily relied on this provision of Section 127 to contend that since in the present matter within 10 years from the date on which the final regional plan or the final development plan bas come into force i.e. on 13-12-1977, none of the authorities bothered to take over a further step of acquisition and because of the lapse of 10 years, the petitioners on 18-12-1989 served the notice making clear his intention by offering a land for being purchased, else it would be available for the owners. However, needless it is to mention here whether it is referred to or not in the notice, stipulated period of 6 months was definitely applicable for any steps to be taken by the respondents. Shri Najbile, learned counsel for petitioners contended that in spite of having been served with the Notice, neither respondent No. 2 nor respondent No. 5 did take any steps and, therefore, Shri Najbile contended that the petitioner’s land can be said to have been released from either reservation, designation or allotment.
12. Shri Najbile while refuting the arguments or Shri Mujumdar vehemently contended that though the Notice is addressed to respondent No. 2, facts on the record clearly revealed that a copy of the same was forwarded to respondent No. 5, could be said to have been a Notice to the appropriate authority. Shri Najbile further contended that the words used in Section 127 of the Act are “may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect.” According to Shri Najbile, it does not say it has to be straightway addressed to the said authority but if, out of certain authorities, to one notice is addressed and copies of the same are served on other concerned which could be said to have been absolutely concerned and thickly concerned, then this could be said to be a sufficient notice for the said authority. In the instant matter, respondent No. 5 no doubt was served with the copy of the Notice which was addressed to respondent No. 2. This service of copy of the Notice was sufficient enough to make aware respondent No. 5 about the intention of the petitioner and it could be said to be a sufficient alarm for respondent No. 5 to set itself in motion if at all respondent No. 5 was interested in the acquisition of the said land for its purpose. We see nothing wrong in this argument of Shri Najbile and in our opinion, this could be said to be a sufficient notice to respondent No. 5 who could be said to be an Appropriate Authority or acquiring authority for the purposes of the present case.
13. The question that now needs consideration is what importance is to be attached to the Resolution dated 6-12-1989 passed by the respondent No. 5 and also to the letter dated 24-1-1990 written by respondent No. 5 -Agricultural Produce Market Committee, Chikhali, to the Collector and also letter dated 27-11-1992 scribed by respondent No. 3 – Collector, Buldhana to respondent No. 4 – Sub-Divisional Officer. We have already made reference as to what are the contents of the Resolution No. 10 dated 6-12-1989. It is a fact on record that respondent No. 5 for 10 years i.e. till 13-2-1987 appeared to have not taken any step in the matter of acquisition nor did they move any authority in that direction for taking appropriate steps for its acquisition. We can very well give concession to the petitioner for this 10 years as he was not supposed to take any steps in those 10 years. However, immediately after expiry of the 10th year, a prudent and vigilant owner of the land, in ordinary course, would have taken immediate steps by issuing appropriate Notice under Section 127 of the Act. In the instant matter though notice was issued under Section 127, the same was issued for the first time on 18-12-1989 i.e. precisely after 2 years and 10 months. On receipt of this notice by Agricultural Produce Market Committee, Chikhali, on 19-12-1989, we see that steps are taken by the Municipal Council in the directions of acquisition by its letter bearing No. 277/90 dated 24-1-1990. If this could said to be the steps, which is also one of the steps contemplated under Section 126(1)(c) of the Act, then it is not difficult for us to reach to the conclusion that it can be said that respondent No. 5 has taken or at least initiated steps in that directions well within the period of 6 months from the date of receipt of the Notice under Section 127 of the Act.
14. Shri P. B. Kotwal, learned advocate on behalf of Shri A. A. Gupta, learned advocate for respondent No. 5 vehemently contended that passing of the Resolution by respondent No. 5 on 6-12-1989 was sufficient to indicate the mind of respondent No. 5 and in any case, according to Shri P. B. Kotwal, Adv. for Shri Gupta, steps could be said to have been initiated under Section 126(1)(c) when respondent No. 5 passed resolution dated 6-12-1989. Shri P. B. Kotwal, Adv. for Shri Gupta, contended that in none of the provisions either under Section 126 or 127, it is made clear as to what would happen if the acquiring body does not take steps within 10 years but initiates steps after expiry of 10 years but before service of the Notice by the owner under Section 127 of the Act.
15. With the help of the learned advocates of all the parties, we have tried to scan the provisions of the Act. However, no one could point it out as to what could be the fate if above said situation occurs as has happened in the present case.
16. In our view, merely because for 10 years no steps are taken by the authorities, would not straightway result in the lapse of the reservation as that position will come up or will crop up only if no steps by the authorities, within six months after a notice under Section 127, is served by the land owner. In our view, therefore, though the Resolution is dated 6-12-1989 and is forwarded to the authorities concerned subsequently, that by itself would not result into accusing the respondents of having not taken appropriate steps in the matter in accordance with Section 126 of the Act. In our view, even before the issuance of the notice, steps could be said to have been taken by respondent No. 5 by passing resolution dated 6-12-1989. Even otherwise since we have already observed that the Agricultural Produce Market Committee, Chikhali, wrote to the Collector, Buldhana, on 24-1-1990 requesting the Collector to push in the matter further as regards the acquisition, can be definitely said to be the steps as contemplated under section 126(1)(c) of the Act and, therefore, from any angle of the matter, the present action of the respondents can be said to have been definitely saved and is safe and it is not open for the petitioner to contend that reservation has lapsed as no action is taken within six months from the service of the notice.
17. Looking at the matter from any angle, it is clear that the action of the respondent State though can be labelled as lethargic one, can not be said to have been hit by any of the provisions of the Act so as to declare that the reservation has in any manner lapsed. In our view, we are fortified by the decision of the Division Bench of this Court reported in AIR 1999 Bombay 390 in the matter of Sangli Miraj and Kupwad City Municipal Corporation v. Balkrishna Haribhau Sawant and Ors. We are anxious to borrow certain observations from this Judgment which are as under :
“Thus, it is clear that the date on which the purchase notice was served by the land owner on the Planning Authority for purchase of land reserved for school and playground in the Development Plan, the proposal submitted by the Planning Authority for compulsory acquisition of the land was already pending. Therefore, in the present case, there was no question of the Planning Authority again taking steps for compulsory acquisition of the land. The requirement of taking steps for acquisition of land after purchase notice is served was satisfied as such step was already taken by the Planning Authority and, therefore, under the provisions of Section 127 of the said Act, even after a period of 16 months, there was no question of reservation lapsing.”
18. In the circumstances, we see no justifiable reason to interfere in this matter. Needless it is to mention that the point so far as regards the valuation and compensation is concerned, we leave the same open to the litigating parties and to claim the same as permissible in accordance with law,
19. In the circumstances, the Writ Petition stands dismissed. Rule is discharged. However, in the circumstances of the case, no order as to costs.
20. The oral request made by Shri Najbile, learned counsel appearing on behalf of the petitioner for staying the effect and operation of this Judgment for 3 months is rejected.