1994 Supreme(Bom) 496

IN THE HIGH COURT OF BOMBAY
M.L. Pendse S.M. Jhunjhunuwala, JJ.
Shashikant Sadashiv Bagwe .... Petitioner.
Versus
The State of Maharashtra and others.... Respondents.
Writ Petition Nos. 1919 with W.P. Nos. 59, 68 76 of 1987, decided on 13-9-1994.
Advocates appeared :
M.B. Mehare with P.K. Dhakephalkar, for the petitioner, in W.P. No. 1919 of 1987.
L.V. Kapse, for respondents Nos. 1 and 3, in W.P. No. 1919 of 1987 for respondent No. 1 2, in W.P. No. 76 of 1987.
M.B. Rao, for respondent No. 2, in W.P. No. 1919 of 1987, for respondent No. 4, in W.P. No. 59 of 1987, for respondent No. 3, in W.P. Nos. 68 76 of 1987.
Bipin Joshi, for respondents Nos. 5, 6, 7, 9, 10 11, in W.P. No. 1919 of 1987.
P. Sankaranarayan, for petitioner, in W.P. No. 59 of 1987.
N.T. Saraf, for respondents Nos. 1 and 2, in W.P. No. 59 of 1987.
M.M. Vashi, for the petitioner, in W.P. No. 68 of 1987.
Ms. Geeta Shastri, for respondents Nos. 1 and 2, in W.P. No. 68 of 1987.
V.R. Chhatrapati with K.D. Mehta and Mrs. B. Treasurywala instructed by M/s. Payne Company, for the petitioners, in W.P. No. 76 of 1987.

Headnote:MAHARASHTRA REGIONAL AND TOWN PLANNING ACT, 1966

       As amended by Act, 1971, Section 126-Land Acquisition Act, 1989 Section 6-State Government-Whether empowered to make declaration under Section 6, Land Acquisition Act, 1894?

       The Regional plan was published and came into force on April 9, 1966. The notification under sub-section (4) of Section 126 of the Act is published long after the passage of three years from the date of publication and so also more than three years from the date when the Amended Act of 1970 came into force.

       The contention that the power conferred under sub-sections (2) and (3) of Section 126 of the Act automatically comes to an end on expiry of three years from the date of publication of the plan cannot be accepted. The plain reading of sub-section (2) of Section 126 of the Act and sub-section (4) of Section 126 of the Act make it clear that the power to acquire is not lost by passage of three years from the date of publication of the plan but what is prescribed is that if notification under Section 6 of the Land Acquisition Act is published more than three years after the date of publication of the plan, then compensation payable shall be determined with reference to the market value prevalent on the date of the publication of declaration under Section 6 of the Land Acquisition Act and not with reference to the date of Section 4 notification of the Land Acquisition Act. The contention urged on behalf of the occupiers that the power to acquire is lost cannot be sustained by the terms of sub-section (4) of Section 126 of the Act.

       The plain reading of sub-section (4) of Section 126 of the Act makes it clear that even if a declaration is not made within the period of three years, !till the State Government has power to make a declaration for acquiring the land under Land Acquisition Act in the manner provided by sub-section (2) and (3) of Section 126 of the Act The expression in the manner provided by sub-section (2) and (3) of Section 126 of the Act makes it crystal clear that the power conferred under sub-section (2) and (3) is not lost.

       It hardly requires to be stated that the acquisition is always under the provisions of the Land Acquisition Act and the only departure made by Sections 125 and 126 of the Act is that the publication of notification under Section 4 and the enquiry under Section 5-A of the Land Acquisition Act is dispensed with. The requirement of publication of notification under Section 4 and enquiry under Section 5-A of the Land Acquisition Act is dispened with because such enquiry is before any land is .reserved in the Development plan for a public purpose.

       A notice is issued and hearing is given to the owner of the land before any land is designated or reserved in the Development plan for a public purpose. The Legislature, therefore, provided that the State Government can proceed to acquire the land by publication or declaration under Section 6 of the Act. The power to publish declaration under Section 6 of the Land Acquisition Act is not lost merely by passage of three years and in case that power is exercised after period of three years, then the Government will be required to pay compensation in accordance with market value of the land on the date of declaration under Section 6 of the Land Acquisition Act.

       The contention that the power to acquire under sub-section (2) and (3) of Section 126 of the Act is lost after period of three years from the date of publication of the plan is not sustainable in view of the provisions of Section 127 of the Act. Section 127 of the Act, inter alia provides that if any land is reserved in the plan and is not acquired by the Government within 10 years from the date on which the plan comes into force, then the owner of the land may serve notice on the Planning Authority.

       In case, the Planning Authority fails to acquire the land within a period of six months from the date of service of notice, then the reservation lapses. It is, therefore obvious that the reservation continues for a period of 10 years and even thereafter and can lapse only in case no steps are taken to acquire the land within a period of six months from the date of service of the notice. The provisions of Section 127 of the Act, therefore, make it clear that the power to acquire is available for a period of 10 years and even thereafter unless notice is given by the owner and the Authority fails to acquire the land within a period of six months. In face of provisions of Section 127 of the Act, it is futile to contend that the power to acquire in the manner prescribed under sub-sections (2) and (3) of Section 126 of the Act is not available after passage of three years from the date of publication of the plan.

       The challenge to the action of the State Government in acquiring the land on the ground that the State Government lacked power to make a declaration under Section 6 of the Land Acquisition Act and under subsection (2) of Section 126 of the Act is without any merit and is required to be repelled.

       It is not possible to examine the record in exercise or writ jurisdiction under Article 226 of the Constitution of India when the Special Land Acquisition Officer specifically denies that these persons were in occupation. The contention of Shri Vashi that the Shops and Establishment Licence was issued by the Corporation and, therefore, the Corporation was conscious of the occupation is of no assistance because what is required to be established is that the Land Acquisition Officer had knowledge of the occupation of the persons. The Manual of the Land Acquisition Act provides that the Lana Acquisition Officer shall serve notice on persons whose names appear on the official record and also on those persons, to the knowledge of Land Acquisition Officer, have interest in the land.

       It is not the case of Shri Vashi that the Land Acquisition Officer was aware of the occupation of these persons on he lane and consequently, no fault can be found in the action of the Land Acquisition Officer is not serving the notices, even assuming that these persons were in occupation. The challenge to the A ward on the ground of non-service of notices under sub-section (3) of the Section 9 of the Land Acquisition Act is without any substance. The Award does not suffer from any infirmity and the challenge to the Award in the three petitions being Writ Petitions Nos. 59, 68 and 76 of 1987 is required to be turned down.

       Sections 126(4), 127-Development plan.

       Effect of expiry of three years from date of publication-Only compensation be affected but not property acquiring power be lost by that.