A.S. Oka, J.

By this Petition under Article 226 of the Constitution of India, the Petitioners who are claiming to be the owners of the property, more particularly described in Paragraph 1 of the Petition (hereinafter referred to as "the said property") have contended that the reservation of the said property in the sanctioned amended development plan of the City of Pune has lapsed.

2. According to the case of the Petitioners, in the year 1987, the said property was included within the limits of the Municipal Corporation of the City of Pune (second Respondent) which is a Planning Authority within the meaning of Section 2(19) the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as "the MRTP Act"). On the request made by one of the Petitioners, the Assistant Engineer, Development Plan of the second Respondent informed that a portion of the said land forms a part of residential zone in the revised development plan. It is stated that one part is shown under reservation for a park and another part is shown for reservation for the development plan road. It is alleged that the eleventh Petitioner started a pre-school nursery and Junior and Senior Kindergarten school on a portion of said property. On 23rd August 2004, a notice under Sub-section (1) of Section 127 of the MRTP Act was issued by the Petitioners. On 11th May 2005, another notice under the same provision was issued by the Advocate for the Petitioners to the second Respondent as well as to the State Government. On 29th June 2006, a Zoning Certificate was issued by the Assistant Engineer (Development Plan) of the Planning Authority stating that a part of the said property was reserved for a park and another part was reserved for a development plan road. On 6th December 2007, a fresh notice under Sub-section (1) of Section 127 of the MRTP Act was served by the Advocate for the Petitioners to the second Respondent Municipal Corporation and the State Government. There is one more notice dated 21st April 2009 issued under Sub-section (1) of Section 127 of the MRTP Act to the second Respondent as well as State Government.

Another notice under the same provision was served to the same parties on 7th May 2009. All the aforesaid notices relate to the said property. The said notice was replied to. It was contended that a copy of the 7/12 extract, property register card, city survey plan and other original documents were not forwarded with the said notice dated 7th May 2009 and, therefore, the notice stands rejected. It is stated in the said communication dated 28th May 2009 that the notice dated 17th May 2005 was served to the second Respondent-Municipal Corporation and as per the resolution passed in the year 2005 by the General Body, the action of acquisition of the land has been already initiated. Therefore, the Municipal Corporation purported to reject even the said notice. There was a reply issued to the said communication by the Advocate for the Petitioner on 19th June 2009. In the Petition, it is contended that though the resolutions were passed in the year 2005, no steps were taken for the acquisition of the said land. It is, therefore, contended that the reservation has lapsed.

3. There is a reply filed by Shri Sunil Indalkar, City Survey Officer No.1, Pune, in which there is a reference to the notice issued by the Special Land Acquisition Officer No.15, Pune on 24th June 2006 for joint measurement of the property in question. It is stated that on 27th June 2006, the measurement was fixed fixed but as the owner was absent, measurement could not be carried out. It is stated that even in the year 2008, the measurement could not be carried out. It is stated that a proposal was again submitted by the Special Land Acquisition Officer on 15th February 2010 for joint measurement. Thereafter, as per the direction of the Special Land Acquisition Officer, measurement was fixed on 8th September 2010. There is a reply filed by Shri Prakash Nivruti Bongale, Assistant Director of Town Planning, Pune Branch, Pune on behalf of the State Government. Reliance is placed on the development plan for Pune (extended area) sanctioned on 9th November 1992 by the State Government which came into force with effect from 1st January 1993. It is stated that the said property is reserved for park as Reservation No.1 in the said development plan. In Paragraph 12 of the said affidavit, it is contended that in the year 2005, as per Section 127 of the MRTP Act, making an application to the Collector within the period stipulated therein was sufficient step for acquisition and within six months from the service of notice dated 11th May 2005, the resolutions were passed by the Pune Municipal Corporation for requesting the Collector to take steps for acquisition of the land.

It is contended that the majority decision of the Apex Court in the case of Girnar Traders (II) v. State of Maharashtra and Others ((2007)7 SCC 555) [LQ/SC/1996/191] is being reconsidered by a larger bench of the Apex Court and, therefore, this Petition cannot be decided relying upon the decision in the case of Girnar Traders (II) (Supra). Lastly it is contended that the land is situated in the prohibited area of 500 yards from the security wall of High Energy Materials Research Laboratory as per the notification dated 27th April 2002 under Section 3 of the Works of Defence Act, 1903. It is contended that the construction activity is not at all permitted on the said property.

4. There is a reply filed by Shri Sudhakar Telang, working as the Officer On Special Duty in the Land Acquisition Department of the second Respondent. It is contended in the reply that under the Resolution No.833 dated 23th August 2005 passed by the Standing Committee of the second Respondent, an application has been made to the District Collector on 31st October 2005 for initiating proceedings for acquisition of the said property. It is pointed out that a revised proposal was submitted by the second Respondent on 23rd January 2006. Thereafter, he has set out various steps taken for acquisition. Lastly it was stated that the joint measurement was scheduled on 8th September 2010 at 11 a.m. It is alleged that the owner of the said property abused the officers of the second Respondent and prevented the measurement being carried out by the second Respondent on that day. It is, therefore, contended that there is no merit in the Petition.

5. The learned senior counsel appearing for the Petitioners submitted that the law laid down by the Apex Court in Girnar Traders case (supra) holds the field. He urged that the only mode of taking steps for acquisition is a publication of Notification either under Subsection (2) or Sub-section (4) of Section 126 of the MRTP Act read with Section 6 of the Land Acquisition Act, 1894. He submitted that even if the Notice dated 7th August 2009 under Sub-section (1) of Section 127 of the MRTP Act is taken into consideration, the steps were not taken within a period of 12 months from the service of the notice and, therefore, the said property shall be deemed to have been released from the acquisition. The learned AGP appearing for the State Government opposes the Petition. The learned counsel appearing for the second Respondent Municipal Corporation relied upon the conduct of the Petitioners which is reflected from the reply filed by the second Respondent. He tendered an additional compilation on record which shows that from 8th September 2010 onwards, the Petitioners physically prevented the survey and measurement of the said property and, therefore, no relief should be granted. He submitted that only because such conduct on the part of the Petitioners, the notification for acquisition could not be issued within stipulated time.

6. We have carefully considered the submissions. It will be necessary to make a reference to Section 127 of the MRTP Act as amended by Maharashtra Act No.16 of 2009 which reads thus:-

"127. Lapsing of reservations -

(1) If any land reserved, alloted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional Plan, or final Development plan comes into force or, if a declaration under sub-section (2) of (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect; and if within twelve months from the date of the service of such 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 be released from such 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.

(2) On lapsing of reservation, allocation or designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette."

7. In the facts of the case, there is no dispute regarding reservation imposed on the said property under the sanction development plan which came into force with effect from 1st January 1993. As pointed out earlier, the Petitioners have purported to serve four notices under Sub-section (1) of Section 127 of the MRTP Act, out of which, the copies of the last three notices issued on 6th December 2007, 21st April 2009 and 7th May 2009 have been annexed to the Petition. In the present case, we will have to proceed on the basis of the last notice dated 7th May 2009 issued by the Advocate for the Petitioners. There is no dispute regarding service of the notice as the Deputy City Engineer of the second Respondent Corporation has replied to the notice. In the reply dated 28th May 2009, it is contended that the documents such as property register card, 7/12 extract, city survey plan were not produced along with the notice and, therefore, the said notice was purportedly rejected. There is no requirement under the Subsection (1) of Section 127 of the MRTP Act to produce the aforesaid documents. Sub-section (1) of Section 127 of the MRTP Act requires the Petitioners to produce the documents showing title in the land subject matter of reservation. In the present case, going by the reply filed by the second Respondent, the title of the Petitioners has not been disputed in any manner. In fact, there was no reply issued to the earlier notices dated 11th May 2005, 6th December 2007 and 21st April 2009 disputing the title of the Petitioners.

8. Therefore, the notice under Sub-section (1) of Section 127 of the MRTP Act which is issued on 7th May 2009 will have to be held as valid.

9. In the reply filed by the second Respondent Planning Authority, it is contended that the Special Land Acquisition Officer had called upon the Planning Authority to make a joint measurement which was fixed on 8th September 2010. It is alleged that an obstruction was raised by the Petitioners and the officers were physically abused and objected and therefore, the survey could not be carried out. The contention is that the as the joint survey could not be carried out, the Notification for acquisition could not be issued. We may note here that the statutory period within which the steps for acquisition were required to be taken in accordance with sub-section (1) of Section 127 expired in the month of May 2010 and, therefore, assuming that what is contended by the Planning Authority is correct, it will not help the Planning Authority. Thus, undisputed position which emerges from the reply affidavits of the State Government as well as of the Planning Authority is that a Notification under Section 6 of the said Act of 1894 read with either Sub-section (2) or Sub-section (4) of Section 126 of the MRTP Act has not been issued till today.

10. We may note here that under clause (c) of Sub-section (1) of Section 126 of the Town Planning Act, a Planning Authority is empowered to acquire a land reserved for any public purpose in development plan by making an application to the State Government for acquiring the same under the said Act of 1894. In such event, either under Sub-section (2) or Sub-section (4) of Section 126, a declaration of the decision of the State Government that the lands specified are needed for the public purpose is required to be made in accordance with Section 6 of the said Act of 1894. Such a declaration is deemed to be a declaration under Section 6 of the said Act of 1894.

11. At this stage, a reference will have to be made to a decision of the Apex Court in the case of Girnar Traders (II) (supra) and in particular the majority view. It may be necessary to make a reference to what is held by the Apex Court in Paragraphs 56 to 61 of the said decision which read thus:

"55. Providing the period of six months after the service of notice clearly indicates the intention of the legislature of an urgency where nothing has been done in regard to the land reserved under the plan for a period of 10 years and the owner is deprived of the utilisation of his land as per the user permissible under the plan. When mandate is given in a section requiring compliance within a particular period, the strict compliance is required therewith as introduction of this section is with legislative intent to balance the power of the State of "eminent domain". The State possessed the power to take or control the property of the owner for the benefit of public cause, but when the State so acted, it was obliged to compensate the injured upon making just compensation. Compensation provided to the owner is the release of the land for keeping the land under reservation for 10 years without taking any steps for acquisition of the same."

"56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. 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."

"57. 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 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."

"58. The MRTP Act does not contain any reference to Section 4 or Section 5-A 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 5-A 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 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 the steps for acquisition are commenced."

"59. There is another aspect of the matter. If we read Section 126 of the MRTP Act and the words used therein are given the verbatim meaning, then the steps commenced for acquisition of the land would not include making of an application under Section 126(1)(c) or the declaration which is to be made by the State Government under sub-section (2) of Section 126 of the MRTP Act."

"60. On a conjoint reading of sub-sections (1), (2) and (4) of Section 126, we notice that Section 126 provides for different steps which are to be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the land by the authorities under Clause (c) of Section 126(1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the land in the Official Gazette, within a period of one year under the proviso to sub-section (2) of Section 126. If no such declaration is made within the time prescribed, no declaration under Section 6 of the LA Act could be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved to the State Government by the planning authority or other authority."

"61. Proviso to sub-section (2) of Section 126 prohibits publication of the declaration after the expiry of one year from the date of publication of draft regional plan, development plan or any other plan or scheme. Thus, from the date of publication of the draft regional plan, within one year an application has to be moved under Clause (c) of Section 126(1) which should culminate into a declaration under Section 6 of the LA Act. As per the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by the Government in the Official Gazette under Section 126(2) is one year. In other words, during one year of the publication of the draft regional plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)(c); and (ii) declaration by the State Government on receipt of the application mentioned in Clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision has been given under Section 126(4)."

12. Thus, the view taken by the Apex Court is that the publication of a declaration under Sub-section (2) or Sub-section (4) of Section 126 of the Town Planning Act read with Section 6 of the said Act of 1894 is a sine qua non for commencement of any proceeding for acquisition under the Town Planning Act. The Apex Court held that unless and until Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced. The Apex Court held that steps for acquisition within the meaning of Sub-section (1) of Section 127 would really commence when the State Government publishes a declaration under Section 6 of the said Act of 1894.

13. In the present case, admittedly, such a declaration has not been made within the period of 12 months provided under Section 127 of the Town Planning Act. Therefore, within the said period of 12 months, neither the said lands are acquired nor any steps have been taken by publication of declaration under Sub-section (2) or Subsection (4) of Section 126 of the Town Planning Act. Therefore, the reservation as regards the said lands shall be deemed to have been lapsed.

14. At this stage, we may note here that a Division Bench of this Court (to which one of us Shri A.S. Oka, J is a party) by the order dated 19th July 2012 in Writ Petition No.3844 of 1997 noticed that the majority view in the case of Girnar Traders (II) (supra) is under consideration of a Larger Bench of the Apex Court and, therefore, deferred the hearing of a Writ Petition before it.

15. However, the attention of this Court at that time was not invited to the binding precedent in the form of the judgment and order dated 31st March 2012 passed by another Division Bench of this Court in Writ Petition No.3954 of 2006 (Harendra Bhikubhai Andhyru and others vs. The State of Maharashtra and other connected matters). The prayers made in the group of Writ Petitions were also based on the majority view in the case of Girnar Traders (II) (supra). An argument was specifically made in the said group of Writ Petitions that the hearing of the group of Writ Petitions should be deferred as the decision in the case of Girnar Traders (II) (supra) was under the consideration of a larger Bench of the Apex Court. This objection was specifically dealt with by a Division Bench of this Court in Paragraphs 7 and 8 of its judgment. The objection was overruled. Paragraphs 7 and 8 of the said decision read thus:-

"7. In the first place, we would deal with the argument that this Court must defer the decision because the question regarding interpretation of Section 127 of the Act is pending before a three Judges Bench of the Apex Court. In our opinion, this submission is devoid of merits. Indisputably, the decision of the Apex Court in Girnar Traders (II) (supra) is of three Judges Bench (larger Bench) of the Apex Court. The fact that minority opinion has been expressed in the said decision would make no difference. It would still be considered as a decision of the three Judges Bench of the Apex Court and would be binding not only on this Court but also on the subsequent Division Bench of the Supreme Court of same or co-equal number of Judges. The decision need not be of the Full Court or of a Constitution Bench of that Court. This legal position is restated in a recent decision of the Apex Court in the case of Fida Hussain & Others vs. Moradabad Development Authority and Anr., (2011) 12 SCC 615 [LQ/SC/2011/934] (see para 23 thereof). This settled principle has been adverted to even in the Constitution Bench decision of the Apex Court in the case of State of Punjab and Anr. vs. Devans Modern Breweries Ltd. & Anr., (2004) 11 SCC 26 [LQ/SC/2003/1190] (see para 339 thereof)."

"8. In the circumstances, following the dictum of the apex Court in Girnar Traders (II) (supra), which is still a good law and has not been overruled by a larger Bench of the Supreme Court, we find no impediment in proceeding to decide these matters." (emphasis added)

16. The law laid down by the Apex Court in the case of Girnar Traders (II) (supra) still holds the field. Therefore, in view of Article 141 of the Constitution of India, the said law binds this Court and will have to be followed as held by the Division Bench of this Court in the case of Harendra Bhikubhai Adhyaru & Others v. The State of Maharashtra & Others in Writ Petition No.3954 of 2006 and other connected matters. A Division Bench of this Court (to which one of us i.e. Shri A.S. Oka, J is a party) in Writ Petition No.3844 of 1997 by order dated 19th July 2012 has taken a view that in view of the pendency of the matter to the larger bench of the Apex Court, hearing of a Writ Petition in which reliance was placed on the decision of Girnar Traders(II) needs to be postponed. We must note here that when the said order was passed, this Court has not considered the binding precedent in the case of Harendra Bhikubhai Adhyaru (supra). Hence, we will have to follow the binding precedent in the case of Harendra Bhikubhai Adhyaru (supra).

17. Now coming back to the facts of the present case, we may note here that admittedly the notice dated 7th August 2009 was served after a lapse of 10 years from the date on which the development plan came into force. As we have held earlier, admittedly, no steps for acquisition within 12 months from the date on which the notice under Sub-section (1) of Section 127 of the MRTP Act have been taken. Hence, consequences provided in Sub-section (1) of Section 127 of the Town Planning Act will follow and reservations in relation to the said lands under the sanctioned development plan shall be deemed to have lapsed. Hence, the Petitioners will be entitled to develop the property as provided in Sub-section (1) of Section 127 of the MRTP Act subject to restriction, if any, imposed under the Works of Defence Act, 1903. Hence, the Petition must succeed and we pass the following order:

ORDER

(a) We hold that the reservations provided in the development plan for Pune (extended area) sanctioned vide Government Notification dated 9th November 1992 bearing TPS-1889/162/CR-7/ 89/UD which came into force with effect from 1st January 1993 in relation to the said land more particularly described in Paragraph 1 of the Petition shall be deemed to have been lapsed;

(b) We direct the State of Maharashtra to notify the lapsing of reservation by an order published in the Official Gazette in accordance with Sub-section (2) of Section 127 of the Town Planning Act within a period of three months from today;

(c) The rule is made absolute on above terms with no orders as to costs.