AI Structured Summary
Not yet generated for this judgment
Judgment
D.K. Deshmukh, J.—By this petition, the petitioner takes exception to the order passed by the State Government dated 20th of June,1997 allowing the appeal filed by respondent No. 1 wherein respondent No. 1 had challenged the order passed by the petitioner-Municipal Corporation rejecting the plan submitted by respondent No. 1 seeking permission to sanction layout plan on his property -- survey No. 451/A + 2/1/1 of Sangli, District Sangli. The appeal was filed u/s 47 of the Maharashtra Regional And Town Planning Act, 1966 (for short the said "Act"). The facts, which are material for the decision of this petition and about which there is no dispute between the parties, are that the development plan of Sangli town under the said Act was sanctioned by the State Government on 28th of March, 1977 and it came into force on 1st of June, 1977. In that plan, the land of the respondents which is the subject-matter of the present petition, was reserved for school and play-ground. On 22nd of December, 1989, the then Sangli Municipal Council passed a resolution for compulsory acquisition of the land for the above referred purposes. Pursuant to that resolution, a proposal was submitted to the Special Land Acquisition Officer by the Municipal Council on 22nd of February, 1990 for compulsory acquisition of the above referred land. On 31st of December, 1992, the respondents served a purchase notice u/s 127 of the said Act on the Municipal Council. That was received by the Municipal Council on 2nd of January, 1993. It appears that the owner had also served a notice on the Director of Town Planning. The Director of Town Planning, by his communication dated 20th of December, 1993,informed the land owner-respondent No. 1 that as the proceedings for compulsory acquisition of this land have already been initiated by the Municipal Council, even before he issued the notice u/s 127 of the said Act, therefore, his notice is not in order. It further appears that on 25th of October, 1994, the Special Land Acquisition Officer informed the Municipal Council that as the Municipal Council has not submitted the corrected land schedule and corrected demarcation, the land acquisition proceedings are dropped. In the meantime, on 27-5-1994, respondent No. 1 submitted a building plan to the Municipal Council. The Municipal Council rejected that plan by communication dated 20th of June, 1994 and an appeal against that rejection was preferred before the State Government u/s 47 of the said Act on 27-10-1994. It appears that while the appeal was pending before the State Government, a Notification, contemplated by Section 126 of the said Act for acquisition of respondent No. 1''s land was issued on 13-6-1996. The State Government decided the appeal filed by respondent No. 1 by its order dated 20th of June, 1977. The State Government held that as the proceedings for compulsory acquisition of the land were not initiated by the Municipal Council within a period of 6 months from the date on which the purchase notice u/s 127 of the said Act was served on the Municipal Council, the reservation of respondent No. 1''s land for school and play-ground has lapsed and, therefore; the petitioner-Municipal Corporation was directed to sanction the building plan submitted by respondent No. 1. It is this order of the State Government dated 20th of June, 1997 which is challenged in the present petition.
Mr. Walawaikar, the learned counsel appearing for the petitioner, submits that as the Municipal Council had taken steps for compulsory acquisition of the land much before respondent No. 1 served the purchase notice u/s 127 of the said Act, there is no question of reservation of land for public purpose in the development plan lapsing in terms of the provisions of Section 127 of the said Act. The learned counsel further submits that in case proceeding for acquisition of land are not started within 10 years of the commencement of the development plan, the land owner may get a right to serve a purchase notice on Planning Authority u/s 127 of the said Act. However, in case the Planning Authority has already taken steps for compulsory acquisition of land before the purchase notice is served or in case the Planning Authority takes steps to acquire land within 6 months of the service of the purchase notice, the reservation of the land in the development plan does not lapse u/s 127 of the said Act. The learned counsel also submits that Section 47 of the said Act provides for an appeal to the State Government. It lays down that such an appeal is to be preferred by the aggrieved party within a period of 40 days from the date of the communication of the order against which the appeal is preferred. In the submission of the learned counsel, the order, against which the appeal was preferred, is dated 20th of June, 1997 and it was also communicated on the same day. The appeal has been filed on 27-10-1994 which is beyond a period of 40 days. The learned counsel, relying on two judgments of the Supreme Court viz. (1) in the case of The The Commissioner of Sales Tax, U.P., Lucknow Vs. Parson Tools and Plants, Kanpur, and (2) in the case of Sakuru Vs. Tanaji, , submits that the State Government while entertaining the appeal u/s 47 of the said Act, has no power to condone delay in making an appeal to the State Government. According to the learned counsel, the order passed by the State Government in the appeal, which was beyond limitation, is an order without jurisdiction. The learned counsel also relies on the provisions of Section 74 of the said Act to show that wherever the legislature wanted to make the provisions of the Limitation Act applicable to the proceedings under the Town Planning Act, a specific provision has been made because sub-section (2) of Section 74 provides that the provisions of Sections 5, 12 and 14 of the Limitation Act shall apply to the appeals filed u/s 74 of that Act. The learned counsel submits that absence of any such provision in relation to the appeals u/s 47 is significant and, therefore, the order passed by the State Government is an order passed without jurisdiction.
Mr. Sakhare, the learned counsel appearing on behalf of respondent No. 1, firstly, submits that this Court may not entertain the petition filed by the petitioner-Municipal Corporation, because according to the learned counsel, the Corporation has not taken prompt actions for compulsory acquisition of respondent No. 1''s land. The learned counsel points out that within a period of 10 years from 1st of June, 1977, when the development plan came into force, no steps were taken. Thereafter, though the resolution was passed in the year 1989, the Planning Authority did not take prompt steps for acquiring respondent No. 1''s land. He further submits that after the State Government passed its order on 20th of June, 1997, the building plan of respondent No. 1 was sanctioned and thereafter, the Corporation has approached this Court by filing the present petition. In the submission of the learned counsel, therefore, after having sanctioned the building plan submitted by respondent No. 1 and after having allowed respondent No. 1 to make considerable investment, the Corporation cannot approach this Court by filing the present petition. In any case, according to the learned counsel, conduct of the Corporation disentitle it to any relief in the jurisdiction of this Court under Article 226 of the Constitution of India.
The learned counsel further submitted, relying on a judgment of the Supreme Court in the case of Municipal Corporation of Greater Bombay Vs. Dr. Hakimwadi Tenants'' Association and Others, , that the proceedings initiated by the Planning Authority for acquisition of land after expiry of a period of 10 years from the date of the commencement of the development plan and before issuance of the purchase notice, become ineffective the moment purchase notice is served on the Corporation and the Planning Authority, therefore, has to initiate proceedings afresh for acquisition within 6 months of the receipt of the notice.
The learned counsel also relied on some unreported judgments of this Court.
The learned Advocate. General appearing for the State Government, firstly, submitted that the question of appeal before the State Government being barred by limitation was not raised before the State Government. He relying on the provisions of Section 29 of the Limitation Act, submits that the provisions of Section 5 of the Limitation Act are applicable to the appeal filed before the State Government u/s 47 of the MRTP Act, 1966. In his submission, the period of limitation provided in the Act for filing administrative appeals is not to be strictly taken and administrative appeals can be entertained even beyond the period of limitation provided in the Act. The learned Advocate General also submitted that in the present case, as prompt action was not taken by the Planning Authority for completing the process of acquisition of the land of respondent No. 1, the State Government was justified in concluding that the reservation of the land had lapsed.
Now, in the light of these rival submissions, if record of the case is perused, it become clear that the Planning Authority had not taken any steps for compulsory acquisition of respondent No. 1'' s land within a period of 10 years from the date on which the development plan came into force. However, in the year 1989, a resolution was passed and thereafter, a proposal was submitted to the Collector for compulsory acquisition of the land. Perusal of the provisions of subsection (1) of Section 126 of the said Act shows that in case lands, for which reservation has been made in the development plan are to be compulsorily acquired, then the Planning Authority has to make an application to the State Government for acquiring such lands under the Land Acquisition Act. Therefore, the only steps that the Planning Authority is required to take for initiating proceedings for compulsory acquisition of the land, which is reserved for public purpose, is making an application to the State Government. In the present case, such a step was taken by the Planning Authority in the year 1990 when it submitted a proposal to the Collector for acquisition of the land. It is further to be seen that according to the provisions of Sub-section (2) of Section 126 of the said Act after such a proposal is submitted by the Planning Authority, the State Government has to record its satisfaction whether the land is needed for public purpose or not and in case for State Government is satisfied that the land is needed for public purpose, then the State Government issues a Notification u/s 6 of the Land Acquisition Act. It is thus, clear that an effective step, which is required to be taken by the Planning Authority for compulsory acquisition of the land u/s 126 of the said Act was taken by the Planning Authority in the present case in the year 1990. Perusal of the provisions of Section 127 of the said Act shows that the land owner gets right to serve a purchase notice on the Planning Authority in case steps for compulsory acquisition of the land or for acquisition of the land by agreement are not taken within a period of 10 years from the date on which the development plan comes into force. It further provides that on the purchase notice being served on the Planning Authority, it has to take appropriate steps for acquisition of the land within a period of 6 months from the date of service of such notice. In the present case steps for compulsory acquisition of the land were already taken when the purchase notice was served on the Planning Authority. It may be pointed out here that failure of the Planning Authority to take steps for either purchase of the land which is reserved for any public purpose in the development plan by agreement or by acquiring it compulsorily within 10 years of coming into force of development plan does not result of releasing the land from reservation. The land continues to be reserved for the same public purpose for which it is shown in the development plan. In this connection, following observation in para 10 of the judgment of the Supreme Court referred to above in Dr. Hakimwadi Tenants'' Association''s case are material (at page 238) :--
"10. Another safeguard provided is the one u/s 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 u/s 127 of the Act has been served by the owner of 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 on designation of the land under a development plan of having lapsed. If a fortiori follows that in the absence of a valid notice u/s 127, there is no question of the land becoming available to the owner for the purpose of development or otherwise.
Thus, it is clear that even after the expiry of 10 years, the land continues to be reserved. Perusal of the provisions of Sub-section (1) of Section 126 of the Act shows that if any land is reserved for any public purpose in the development plan, the Planning Authority can make an application to the State Government for acquiring such land under the Land Acquisition Act. It is thus clear that the petitioner was within its powers in making an application by submitting proposal for acquisition of the land in 1991. It is clear from the provisions of Section 126 that after the Planning Authority submits an application for compulsory acquisition of the land under the Land Acquisition Act, it is for the State Government to decide whether to acquire the land compulsorily or not. It is clear that after the petitioner submitted proposal for acquisition of the land in 1991, that decision was taken by the State Government in the year 1996 when Notification u/s 6 was issued in accordance with the provisions of Sub-section (2) of Section 126 of the Act. Thus, it is clear that the date on which the purchase notice was served by the land owner on the Planning Authority, 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 in the present case 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 6 months, there was no question of reservation lapsing. We find that such a view has already been taken by the learned single Judge of this Court in the case of Sheth & Bharmal (Firm) v. Municipal Administrator, Municipal Corporation of Greater Bombay and others reported in 1988 Mh LJ 613. In so far as the judgment of the Supreme Court relied on by the learned counsel for respondent No. 1 in the case of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi (supra) is concerned, perusal of that judgment shows that in that case, no steps were taken by the Municipal Corporation for compulsory acquisition of land or for purchase of land by agreement before purchase notice was served on the Planning Authority. No steps were also taken within a period of 6 months from the date of service of the purchase notice. It is this situation which is considered by the Supreme Court. In that case, the Supreme Court was not considering the question that falls for consideration in the present case. It is, however, to be noted that in paragraph 6 of the judgment, the Supreme Court has held that the most crucial step for acquisition of the land under Sub-section (1) of Section 126 of the Act is making an application by the Planning Authority to the State Government. Other unreported judgments relied on by the learned counsel for the petitioner also do not consider the situation present in this case, namely, that proceedings for acquisition are already initiated before service of purchase notice but after expiry of the period of 10 years. In so far as the submission of Shri Sakhare that after a purchase notice is served by the land owners on the Planning Authority u/s 127, the steps taken by the Planning Authority before service of the purchase notice by the land owner and after expiry of a period of 10 years, the date of commencement of the development plan becomes ineffective and therefore, after the Planning Authority receives the purchase notice, it is obliged to initiate again proceedings of acquisition of the land is concerned, in our opinion, the submission is devoid of any substance. As observed above, the Planning Authority is full within its rights in initiating action for acquisition of the land for public purpose even after expiry of the period of 10 years. We do not find anything either in Section 126 or Section 127 of the Act which would render the steps taken by the Planning Authority in exercise of its power under the Act becoming ineffective on service of purchase notice on the Planning Authority.
In so far as the second submission of the learned counsel for the petitioner is concerned, perusal of Section 47 of the said Act shows that there is a specific period of limitation provided viz. 40 days for making an appeal. There is no power vested in the Appellate Authority to condone delay. The Supreme Court in its judgment in the case of Sakuru v. Tanaji (supra) has, after taking a review of the previous judgment, observed as under (at page 1280):--
"............ that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified powers conferred on Courts under the Codes of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein u/s 90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him."
In the present case, it was not even suggested by the learned Advocate General that the State Government, while exercising the appellate power, acts as a Court. In the face of the clear law laid down by the Supreme Court quoted above, in our opinion, the State Government was not at all justified in entertaining the appeal which was filed beyond the period of 40 days. In, so far as the submission of the learned Advocate General that the question of limitation was not raised before the State Government is concerned, in our opinion, if the appeal is entertained beyond limitation, the order passed in such appeal is rendered without jurisdiction and the question about jurisdiction, in our opinion, can be raised for the first time before this Court. In so far as the submission of the learned Advocate General that the appeal provided by Section 47 is an administrative appeal and therefore the period of limitation is not to be strictly insisted upon is concerned, the right of appeal is always creation of a statute. Therefore, the right to file an appeal has to be governed strictly by the statute which creates that right. If Section 47 empowers the State Government to hear an appeal if filed within 40 days of the communication of the order impugned, in our opinion, in the absence of provisions in the statute further empowering the State Government to entertain the appeal filed beyond the period of 40 days the State Government would not be justified in entertaining the appeal.
In so far as the submission of the learned counsel for respondent No. 1 that as the Municipal Corporation has already sanctioned the building plan and, therefore, the Corporation is not entitled to any relief on the hands of this Court is concerned, it is pertinent to note hear that the building plan was sanctioned by the Corporation pursuant to the order passed by the State Government. At the relevant time, there was no elected Council. Elected Council resumed the office on 10th August, 1998, whereas the building plan was sanctioned on 7th of August, 1998. Considering that reservation of the land is for public purpose, namely, for a school and play-ground and as we find that the order of the Minister is without jurisdiction, in our opinion, the Corporation is entitled to challenge the same in the present petition.
In the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer Clause (b) of the petition. However, in the facts and circumstances of the case, there shall be no order as to costs.
Issuance of certified copy of this order is expedited.