N.V Dabholkar, J.:— By this writ petition under Articles 226 and 227 of the Constitution of India, petitioner seeks a declaration that the reservation on the land of petitioner has lapsed i.e the land is dereserved and also directions to respondents to take necessary steps for dereservation of the land in its records so as to enable petitioner to develop the land for the purpose permissible in the case of adjacent land under the relevant plan.
2. Heard respective counsel.
3. Rule. Rule made returnable forthwith by mutual consent and the matter is heard for final disposal.
4. The factual matrix necessary for the purpose of adjudication of writ petition can be narrated as follows.
5. Petitioner is owner of Gut No. 44 of Shirasgaon, which is now part and parcel of Municipal limits of Shrirampur Municipal Council, Dist. Ahmednagar. An area admeasuring 5536 Sq. Mtrs. is reserved for playground according to development plan. The draft development plan submitted by Municipal Council to the Government was sanctioned by the State on 9-8-1991 and published in the Government gazette on 5-9-1991.
6. Because the State or Municipal Council did not take any steps for acquiring the reserved plot for 10 years (which ended on 4-9-2001), petitioner issued a purchase notice under section 127 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act for the sake of brevity) on 27-6-2003. Admittedly, the notice was served on Municipal Council on 30-6-2003. Petitioner has approached this Court by contending that in spite of lapse of six months (as on 29-12-2003) since no steps of acquisition are taken by Municipal Council or the State, the statutory effect of lapsing of reservation as contemplated by section 127 of mrtp act has occurred and petitioner is claiming a declaration to that effect.
7. Reply is filed on behalf of respondent No. 5 and the steps taken by respondent No. 5 as indicated in the said reply, can be stated to be as follows.
8. Notice was received by Municipal Council on 30-6-2003. It passed a resolution on 30-8-2003 for initiation of land acquisition proceedings of petitioner's plot. It was only on 24-12-2003, Municipal Council had submitted a proposal to Collector, Ahmednagar, for initiation of land acquisition proceedings. There was some back reference with queries by Collector to Municipal Council and Municipal Council resubmitted the matter with compliance on 25-1-2007. The Collector, after being satisfied by the compliance, has issued orders under section 52-A of the Land Acquisition Act read with section 126 of MRTP Act. As can be seen from Exhibit 2, annexed to reply, it appears that the Collector, Ahmednagar, has, in exercise of powers under section 52-A of the Land Acquisition Act, 1894, has delegated all his powers under the said provision to Sub Divisional Officer, Shrirampur Division, to perform all the duties of Collector and to take all necessary steps for the purpose of acquisition of the plot as required for primary school and playground.
9. During the course of his submissions, learned AGP, as per oral instructions taken, had fairly conceded that so far notification under section 6 of the Land Acquisition Act is not issued.
10. Advocate Shri Hon for Municipal Council has placed reliance upon para 11 from the judgment of the Apex Court in the matter of Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants Association, 1988 Mh. L.J (SC) 1 : 1988 Supp SCC 55 : AIR 1988 SC 233 to following effect:
“It cannot be doubted that a period of 10 years is long enough. The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed.”
11. As against this, Shri A.B Kale has placed reliance upon recent judicial pronouncement of the Supreme Court in the matter of Girnar Traders v. State of Maharashtra, 2007 (6) Supreme 25. It must be stated that the portion from para 11 in the matter of Municipal Corporation of Greater Bombay (supra) is considered by the Hon'ble Supreme Court in the judgment of Girnar Traders at length in paras 20 to 30. After taking a survey as to what is judicial precedent, the Supreme Court concluded in para 30 thus:
“Thus, observations of the Court did not relate to any of the legal questions arising in the case and, accordingly, cannot be considered as the part of ratio decidendi. Hence, in light of the aforementioned judicial pronouncements, which have well settled the proposition that only the ratio decidendi can act as the binding or authoritative precedent, it is clear that the reliance placed on mere general observations or casual expressions of the Court, is not of much avail to the respondents.”
12. On reference to para 29 of the judgment in the matter of Girnar Traders, it is evident that the issue with which the Court was dealing in the matter of Municipal Corporation, Greater Bombay, was “Whether the period of six months specified in section 127 of the Act is to be reckoned from the date of service of the purchase notice dated July 1, 1977, by the owner on the Planning Authority i.e the Municipal Corporation of Greater Bombay here or the date on which the requisite information of the particulars is furnished by the owner?” Since the Court in the case of Greater Bombay Municipal Corporation was not considering the interpretation of clause “no steps as aforesaid are commenced for its acquisition”, the observations of the Supreme Court in earlier judicial pronouncement are recorded to be not binding or authoritative precedent.
13. While considering the interpretation of the phrase “or no steps aforesaid are commenced for its acquisition” as contained in section 127 of mrtp act, which was tried to be placed reliance upon by learned counsel for Municipal Council, the Supreme Court observed thus in para 31 of the judgment in the matter of Girnar Traders:
“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.”
14. In the matter of Girnar Traders, revised development plan was sanctioned on 16-9-1991 and 10 years expired on 15-9-1991 without there being any acquisition or steps being taken for acquisition. The purchase notice under section 127 dated 15-3-2002 issued by the appellant was received by the authorities on 19-3-2002. Under the second part of section 127, the land was either required to be acquired or steps in that regard were required to be commenced by 18-9-2002 (expiry of six months). For the first time, after the service of purchase notice on 9-9-2002, a proposal was made by the Improvement Committee recommending the Municipal Corporation for sanction to initiate the acquisition proceedings. On 13-9-2002, without there being any resolution by the Government, the Chief Engineer (Development Plan) sent an application to the State Government for initiating the acquisition proceedings. For the first time on 16-9-2002, a resolution was passed by the Municipal Corporation whereby sanction was given to initiate the acquisition proceedings of land and the Municipal Commissioner was authorised to make an application to the State Government. On 17-9-2002, a letter was sent by Chief Engineer (Development Plan) to the Secretary, Urban Development Department in the Government of Maharashtra for initiating acquisition proceedings. It can be said that facts in the reported matter are practically parallel to the facts in the present matter before us. There has been silence for 10 years since the development plan was sanctioned and the resolution and communication to the State or the Collector are the events, which have taken place within six months from the service of purchase notice under section 127.
15. The Hon'ble the Supreme Court, while interpreting the clause “steps as aforesaid” as contained in section 127 observed thus in para 32:
“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. 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 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.”
16. Para 33 is concluded by the Hon'ble Apex Court as follows:
“Thus, unless and until section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced.”
17. Lastly, we may quote observations with which para 35 of the judgment is concluded:
“Therefore, by no stretch of imagination, the step taken by the Municipal Corporation under section 126(1)(c) of making an application could be said to be a step for the commencement of acquisition of the land. After the expiry of one year, it is left to the Government concerned under sub-section (4) of section 126 to issue declaration under section 6 of the la act for the purposes of acquisition for which no application is required under section 126(1)(c). sub-section (4) of section 126 of the MRTP Act would come into operation if the State Government is of the view that the land is required to be acquired for any public purpose.”
18. In view of the interpretation of the relevant clause, as held by the Hon'ble Apex Court in the matter of Girnar Traders, we are bound to follow even the result in the said case since the facts in the reported judgment and the matter before us are practically similar.
19. Writ petition is allowed. Rule made absolute in terms of prayer clauses (B), (C) and (D).
Petition allowed.