Shri. Sitaram Baburao Kalbhor And … vs State Of Maharashtra Through Its … on 13 October, 2017

1 WP Nos. 2827.14-1783.08 6728.15.doc

JPP

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO. 2827 OF 2014

1. Mehtab Laiq Ahmed Shaikh
of Mumbai, Indian Inhabitant,
residing at 3, Biquis Apartment,
Mahakali Caves Road, Andheri (East),
Mumbai – 400 093.

2. Prakash Hari Vallabhdas Shroff
of Mumbai, Indian Inhabitant,
through his Constituted Attorney
Mr. Mehtab Laiq Shaikh,
residing at 3, Biquis Apartment,
Mahakali Caves Road, Andheri (East),
Mumbai – 400 093. … Petitioners.

V/s.

1. State of Maharashtra
Through its Principal Secretary
to the Urban Development Department,
Mantralaya, Mumbai.

2. Municipal Corporation of Brihan
Mumbai, Through its Municipal
Commissioner having his office at
Mahapalika Marg, Mumbai – 400 001.

3. Special Land Acquisition Officer
No.7, having office at Pratapgad

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Co-operative Housing Society,
Vinayak Apartment, 1st floor,
Off. Haffkine Institute, Parel Village,
Mumbai – 400 012. … Respondents.

with
WRIT PETITION NO. 1783 OF 2008

Mr. Prakash Hari Vallabhdas Shroff
of Mumbai, Indian Inhabitant, through
Constituted Attorney Mehtab Laiq
Ahmed Shaikh, residing at 3, Bilquis
Apartment, Mahakali Caves Road,
Andheri (East), Mumbai – 93. … Petitioner.

v/s.

1. State of Maharashtra
Through its Principal Secretary to the
Urban Development Department,
Mantralaya, Mumbai.

2. Municipal Corporation of Greater
Bombay, through its Municipal
Commissioner, having their office at
Mahapalika Marg, Mumbai – 400 001.

3. Special Land Acquisition Officer No.7,
having office at Bhusampadan Bhavan,
2nd floor, Saibaba Road, Bharatmata
Cinema Naka, Lalbaug, Mumbai – 400 012. … Respondents.

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with
WRIT PETITION NO. 6728 OF 2015
(APPELLATE SIDE)

Mr. Sitaram Baburao Kalbhor,
Age – Adul, Occupation – Agriculturist,
Residing at : Nigadi, Pune

2. Shri Pandurang Baburao Kalbhor.
Age Adult, Occupation : Agriculturist,
Residing at : Nigadi, Pune. … Petitioners.

v/s.

1. State of Maharashtra
Through its Secretary, Urban Development
Department, Mantralaya, Mumbai – 32.

2. The Commissioner,
Pune Division, Pune.

3. The Collector, Pune
Having its office at Collector,
Compound, Pune – 400 001.

4. The Special Land Acquisition
Officer No. 24, Pune having
address at 2nd floor, New
Administrative Building,
Opp. Council Hall, Pune – 1.

5. The Special Land Acquisition
No. 22, Pune, having address at
2nd floor, New Administrative
Building, Opp. Council Hall,
Pune – 1.

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6. Pimpri Chinchwad New Town
Development Authority,
through its Chief Executive Officer,
Having office at Nigadi, Pune – 44. … Respondents.

Mr. G.S. Godbole with Drupad S. Patil with Parag Tilak with Aasim
Naphade i/b. Drupad Patil for the Petitioners in O.S. WP Nos.
2827/14 and 1783/08.

Mr. Siddharth Ronghe for the Petitioner in A.S. WP 6728 of 2015.

Mr. A.A. Kumbhakoni, Advocate General with Geeta Shastri, AGP
with Mr. S.T. Satelkar, AGP with Shardul Singh and Akshay Shinde
for the State in O.S. WP Nos. 2827/14 and 1783/08.

Mr. A.A. Kumbhakoni, Advocate General with Mr. A.B. Vagyani,
Govt. Pleader with Mr. P.G. Sawant and Mr. Vikas Mali, AGP with
Ms. G.R. Golatkar R.S. Sawant, AGP for R. Nos. 1 to 5 – State in
A.S. WP No. 6728/15.

Mr. Vijay Patil for Respondent No.6 in A.S. WP 6728/15.

Mr. A.Y. Sakhare, Senior Advocate with Mr. Pralhad Paranjape with
Joel Carlos with Ms. Trupti Puranik with Ms. Geeta Yadav for
Municipal Corporation.

Mr. A.V. Anturkar, Senior Advocate with Prathamesh Bargude as an
Intervenor.

Mr. Aspi Chinoy, Senior Advocate, as Amicus Curiae.

Mr. Janak Dwarkadas, Senior Advocate, as Amicus Curiae.

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CORAM : DR. MANJULA CHELLUR,C.J.,
N.M. JAMDAR G.S. KULKARNI, JJ.

RESERVED ON : 21 SEPTEMBER, 2017.

PRONOUNCED ON : 13 OCTOBER, 2017.

Judgment (Per N.M. Jamdar, J.) :-

The full bench is called upon to answer the following
question: –

“Whether the provisions of Section 24(2) of the Right to
Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 as regard lapsing of the
acquisition apply to the acquisition proceedings initiated in terms of
Section 125 to 127 of the Maharashtra Regional Town Planning
Act, 1966?”

2. To answer this question, we will have to consider the
historical perspective of the land acquisition and the town planning
laws. The acquisition of private lands in India is statutorily regulated
for almost 150 years. The law has gone through changes from time
to time. The long standing land acquisition enactment was replaced
by a new law a few years ago. In the erstwhile Bombay region, and
now Maharashtra, the laws dealing with town planning are in opera-
tion since almost a century. The interplay between the state law gov-
erning town planning and the central law dealing with land acquisi-

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tion has fallen for consideration of the Supreme Court on more than
one occasion. A brief outline of the growth and the features of the
acquisition laws, the state town planning laws and the decisions of
the Apex Court on the issue, is necessary as a prefix to the discus-
sion.

3. The chronological placement of the topics is as follows.
First, we will refer to the acquisition laws leading to Land Acquisi-
tion Act, 1894. Then the state town planning laws, including the
Maharashtra Regional and Town Planning Act, 1966, amendments
to Land Acquisition Act, decisions of the Supreme Court on the ap-
plicability of amendments to Land Acquisition Act to the town plan-
ning laws, the new acquisition law, that is the Right to Fair Com-
pensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (the RFCTLARR Act), the decision of the
division bench of this Court on the applicability of the new acquisi-
tion law, amendments to the Maharashtra Regional and Town Plan-
ning Act, the rules framed by the State Government under the Right
to Fair Compensation and Transparency in Land Acquisition, Re-
habilitation and Resettlement Act, and the events leading to the
present Reference. After noting the rival contentions, we will address
the pivotal issue as to whether the law laid down by the Supreme
Court in respect of the earlier land acquisition law applies to the new
acquisition law in the context of the question posed and whether
there is any change in the legal position.

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4. The British Government enacted the first land
acquisition legislation in India in the year 1824. It was called the
Bengal Resolution I of 1824. In the year 1850, the regulation was
extended to Calcutta. Subsequently, similar Acts were enacted for
Bombay and Madras. Repealing previous enactments the Act of
1857 was brought into force in rest of British India. The subsequent
Act X of 1870 was replaced by the Land Acquisition Act of 1894.
After the Independence, the Land Acquisition Act, 1894 was
adopted by the Indian independence (Adoption of Central Act and
Ordinances (order) of 1848. The Land Acquisition Act of 1894 (the
L.A. Act) was employed for the purpose of acquisition of private
land by the Government for the public purpose.

5. Section 3 of the L.A. Act defined the terms occurring in
the Act. Various categories were enumerated under the definition of
the “Public Purpose”, Part II of the L.A. Act dealt with the
acquisition of land. Whenever it appeared to the appropriate
Government that land in any locality was needed or likely to be
needed for any public purpose, a notification to that effect was to be
published. Section 4 stipulated publication of such preliminary
notification. Section 4(1) of the L.A. Act dealt with the manner in
which the notification was to be issued. Section 4(2) made it lawful
for the authorized officers to enter upon the land pursuant to the

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notification, make a survey and take ancillary steps. Initially, the
L.A. Act did not provide any opportunity for the objectors to put
forth their objections against the compulsory acquisition. By an
amending Act, Section 5A was inserted in L.A. Act. Under this
provision, a person interested in the land which was needed or likely
to be needed for the public purpose could file the objections.
Section 5A (2) mandated the Collector to give an opportunity to the
objector of being heard and then submit a report containing his
recommendations on the objections. Section 6 governed the
declaration of the intended acquisition. Section 6 states that, after
considering the report under Section 5A(2), if any land is needed for
public purpose, the declaration to that effect is to be published in the
Official Gazette. After the land was marked out and measured, the
Collector issued a notice under Section 9 to the interested persons.
On the date so fixed, the Collector proceeded to inquire into
objections if any, pursuant to the notice given under Section 9 and
declared an award under Section 11. After the award was made
under Section 16, the Collector was empowered to take possession of
the land. After the possession was taken, the lands vested absolutely
in the Government, free from all encumbrances. Section 17
conferred special powers on the appropriate Government in case of
urgency to take immediate possession by dispensing with the certain
procedure specified in the said Section. Section 23 dealt with
matters to be considered for determining the compensation and the

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matters which were to be excluded while determining the
compensation were enumerated under Section 24. Section 48
provided that the Government was at liberty to withdraw from
acquisition of land of which possession has not been taken. This
broadly is the background and outline of the Land Acquisition Act,
1894.

6. The origin of town planning legislation in the Bombay
State can be traced back hundred years. The Bombay Town Planning
Act, 1915 was enacted to ensure that the town planning is made
efficient. The Act of 1915 emphasised on the individual rights, as
extent of population in the urban areas did not pose a serious
problem then. Later as the urban population grew exponentially, the
Act of 1915 was repealed and was replaced by Bombay Town
Planning Act, 1954. Various provisions were made acknowledging
the importance of the town planning in development of urban areas,
not only for better infrastructure, but also for the well-being of the
residents. Stipulations were incorporated to frame the schemes for
orderly development and for implementation. Considering the ills
brought about by the rapid urbanization, the larger interest of the
society in planned development was given importance and the
individual rights were made subservient, to a degree. The
Maharashtra Regional and Town Planning Act, 1966 was brought to
statute book with effect from 11 January 1967. The MRTP Act
made provisions for planning, development, and use of lands. It

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also dealt with regional planning, ways to make better provisions for
preparation of development plan and to ensure that the town
planning schemes are made properly. The powers of the Town
Planning Authority to take steps to ensure orderly development of
urban area were increased and provisions were made for acquisition
of lands pursuant to the public purpose. The Act also provided for
creation of new towns.

7. Section 2 of the MRTP Act defines various terms.
‘Development’ is defined, inter-alia, as buildings, engineering,
mining and other operations, making changes in the building or
land; re-development layout sub-division of any land. ‘Planning
authority’ is defined as the local authority, which includes Special
Planning Authority and Slum Rehabilitation Authority. The
concept of ‘Regional plan’ and ‘Development plan’ have also been
defined. Chapter II of the Act deals with the Regional Plan. The
Act establishes Regions and alteration of its limits, as specified by the
State Government by notification in the official gazette. Part (C) of
Chapter II of the Act provides for the survey and preparation of the
Regional Plans, contents of the Regional Plan, the methodology and
submission of Regional Plan for approval, publication of the
Regional Plan, restrictions on change of user, and the modifications.
The Regional Plan indicates the manner in which the land in the
Region should be used.

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8. Chapter III of the MRTP Act deals with the
Development Plan. The contents of the Development Plan have
been indicated in Section 22. The Development Plan is to be
prepared by every planning authority. The Act deals in detail with
the contents of Development Plan, the Draft Development Plan,
Interim Plan and it’s finalization. Steps for modification of the Plan
are also provided. Area Development Authorities are constituted
under Chapter III-A. Control and restrictions on the development
of land are provided for. Permission for development and its refusal
and remedies against the refusal and the penalties, as well as powers
of the authorities in respect of unauthorized development, are also
prescribed. Town Planning Scheme is dealt with under Chapter V.
Part A of Chapter V lays down the preparation of town planning
scheme, the contents of draft scheme and the power to sanction the
draft scheme. Part B provides for an arbitrator and a tribunal for
appeal to resolve the dispute in respect of the town planning scheme.
Power of the authorities to enforce the Scheme are dealt with under
Part C of Chapter V.

9. Chapter VII of the MRTP Act, which is of importance,
deals with the land acquisition. Section 125 states that any land
required or reserved in a regional development plan or a town
planning scheme for a public purpose shall be deemed to be for a

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land for the public purpose under the L.A. Act (now RFCTLARR
Act). Section 126 deals with the acquisition of lands for the public
purpose specified in the plan. It provides for three modes of
acquisition in respect of the land reserved for public purpose in the
plans or schemes. The first mode is by agreement, paying the
amount agreed. Secondly, in lieu of the amount, by grant of floor
space index or transferable development rights, on certain
conditions. Thirdly, by making an application for acquisition of
lands under the L.A. Act (now RFCTLARR Act). Section 126(2)
states that on receipt of an application, the State Government, if it is
satisfied, can make a declaration to that effect in the manner
provided under Section 6 of L.A. Act (now Section 19 of
RFCTLARR Act). Sub-section 3 of Section 126 empowers the
Collector to take order for the acquisition, after publication of such
declaration on certain conditions stated therein. Section 127 deals
with lapsing of reservation. It provides that in case of any land
reserved under the Act is not acquired within ten years from date on
which the final plan comes into force, the person interested can
make an application to the concerned authorities. If the authorities
do not take any steps within 24 months to acquire the land, then the
reservation, allotment, designation as the case may be, shall deem to
lapse. Section 128 deals with powers of the State Government to
acquire land other than one which is designated in any Plan or
Scheme. The Act also deals with the subjects such as finance, audit

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and various ancillary provisions. This broadly is the scheme of the
MRTP Act.

10. By passage of time various issues arose from the
implementation of the L.A. Act and amendments were carried to
overcome these shortfalls. The L.A. Act was amended on 24
September 1984 by the Land Acquisition (Amendment) Act of
1984, whereby Section 11A was inserted. Section 11A mandated
that an award shall be made by the Collector under Section 11 of the
Act within a period of two years from the date of the publication of
the declaration under Section 6. Breach of this condition resulted
in lapsing of the entire acquisition proceedings. The Explanation
appended to Section 11A excluded the period during which any
action or proceeding relating to acquisition taken pursuant to such
declaration remained stayed by an order of the Court.

11. After Section 11A was introduced in the statute book, a
question arose whether this provision could be applied to
acquisitions under Chapter VII of the MRTP Act. This issue was
taken to the Apex Court, amongst others by one Girnar Traders, a
registered firm from Maharashtra. Girnar Traders owned certain
lands within the jurisdiction of Jalgaon Municipal Council. The firm
questioned the inaction of the Municipal Council in respect of the
purchase notice issued by it. Since the Municipal Council did not

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accept the claim of Girnar Traders, a writ petition came to be filed
in the Bombay High Court. The writ petition was dismissed, and
Girnar Traders filed an appeal in the Supreme Court. The appeal
came for consideration before the bench consisting of two learned
Judges. It was contended by the appellant that the award was not
published within two years and the amended provisions of the L.A.
Act would have to be read into MRTP Act and consequently, the
resultant benefits need to be extended to the appellant. The
Respondents relied upon the decision of the bench of two learned
Judges of the Apex Court in the case of State of Maharashtra v/s.
Sant Joginder Singh Kishan Singh1. The Bench which heard the
appeal of Girnar Traders expressed an opinion that the decision in
Sant Joginder Singh requires reconsideration by a larger bench. The
bench opined that there was no reason as to why the provisions
introduced in L.A. Act by the Central Act 68 of 1984 are not read
into Chapter VII of MRTP Act. It expressed that Section 11A of the
L.A. Act, being one such provision, it may have to be applied to
acquisition under Chapter VII of the MRTP Act.

12. The appeal of Girnar Traders, along with other matters,
were thus placed for hearing before the bench of three learned
Judges. Contentions were advanced to apply Section 11A in
Chapter VII of the MRTP Act. The bench of three learned Judges

1 1995 Supp (2) 475

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decided to refer the question to a larger bench. This decision is
reported as Girnar Traders (2) v/s. State of Maharashtra2.

13. Five learned Judges of the Apex Court sat as a
Constitution Bench to consider the question regarding the
applicability of Section 11A of the L.A. Act to the acquisition under
Chapter VII of the MRTP Act. The Constitution Bench was called
upon to examine whether the MRTP Act is a self-contained code
and whether the provisions of the Land Acquisition Act, as amended
by Central Act 68 of 1984, with emphasis on Section 11A, can be
read into the provisions of the MRTP Act. The appellants
contended that the provisions of L.A. Act are a legislation by
Reference into provisions of MRTP Act, therefore, the
amendments, including Section 11A, brought about by the Central
Act of 68 of 1984, becomes an integral part of the MRTP Act. It
was contended that both the enactments operate in a common field
and form a unified working scheme. It was urged that since Section
125 of MRTP Act stated that a purpose of acquisition under the
MRTP Act would deem to be a public purpose within the meaning
of L.A. Act, once notification under Section 126(2) is issued,
automatically the provisions of Section 6 and complete mechanism
for acquisition of land comes into effect and consequently Section
11A applies as well. It was contended that if Section 11A is not
made applicable, it will amount to discrimination. These

2 (2007) 7 SCC 555.

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submissions were countered by the Respondents contending that the
MRTP Act is a self-contained code and there is no question of
legislation by Reference or by Incorporation, and even otherwise it
was a clear case of legislation by Incorporation. It was contended
that provisions of MRTP Act refer to specific provisions of L.A. Act
and there is no general application and both the legislations are
enacted by two different bodies for different purposes and operate in
different fields.

14. For resolution of the controversy, the Constitution
Bench examined the scheme of MRTP Act and the L.A. Act. After
taking survey of both these enactments, the Bench categorically
opined that the MRTP Act is a code in itself having one pre-
dominant object i.e. the planned development. It observed that
MRTP Act does not lose its character being self-contained code
merely because it makes a reference to some of the provisions of the
L.A. Act for the purpose of acquisition. The Bench held that if the
entire planned development, which is a massive project, is permitted
to lapse on the application of Section 11A of the L.A. Act, then it
will frustrate almost every project of planned development.
Applying the doctrine of pith and substance, the Bench observed
that the MRTP Act is aimed at planned development unlike the
L.A. Act whose object is to acquire lands and disburse compensation
in accordance with law. There is no repugnance between the two

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enactments. The Constitution Bench accordingly answered the
reference by holding that MRTP Act is a self-contained code and
provisions introduced by L.A. Act by Central Act of 68 of 1984 in
respect of acquisition of payment of compensation and legal
remedies can be read into acquisition under Chapter VII of MRTP
Act, but those provisions of L.A. Act which provide different time
frame, consequences of default resulting in lapsing of acquisition
cannot be read into MRTP Act. Section 11A of L.A. Act was one
such provision. Accordingly, the Constitution Bench answered the
reference on 11 January 2011 in the decision reported as Girnar
Traders (3) v/s. State of Maharashtra and Ors.3.

15. When the case of Girnar (3) was being considered, by
the Constitution Bench, along with cases arising from other Acts, on
a submission made by the learned Counsel that the provisions of the
Bangalore Development Authority Act are different than the MRTP
Act and the cases relating to B.D.A. Act should be heard separately,
the Constitution Bench considered the issue separately. In this case,
the Constitution Bench dealt with the question of applicability of
Section 11A of the L.A. Act to the B.D.A. Act. An argument was
advanced that Section 11A of the L.A. Act needs to be read into the
provisions of the B.D.A. Act as it is the case of legislation by
Reference. It was also contended that provisions of Section 11A can
operate as a part of scheme of B.D.A. Act and such integration
3 2011(3) SCC 1

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would be in consonance with the larger public policy. After
examining the scheme of the B.D.A. Act, the Constitution Bench
held that the B.D.A. Act is a self-contained code with the distinct
and predominant purpose of planned development. The Bench
referred to its decision in respect of the MRTP Act and reached an
identical conclusion. The Apex Court held that the provisions of
L.A. Act, such as Section 11A, which provide for different time
frame and consequences of default resulting in lapsing of acquisition
proceedings, cannot applied to the B.D.A. Act. The decision is
reported as Offshore Holdings Private Limited v/s. Bangalore
Development Authority and Ors.4

16. Over the years, a demand had steadily grown for a new
acquisition law. The L.A. Act enacted by the British almost 120
years ago focused primarily on forcible acquisitions for building
infrastructure, such as railways, roads, bridges, canals. Wide spread
public opinion was generated that the Act did not adequately address
various social issues that arose from the compulsory acquisitions,
especially from the acquisitions for mega-projects. The
indiscriminate use of Section 17 of the L.A. Act by the executive,
invoking urgency clause dispensing with statutory safeguards, was
one such complained abuse. It was felt that the compensation paid
under the L.A. Act was unrealistic and unconnected with the actual
rates. Ultimately, the Apex Court also took note of this malady and
4 2011(3) SCC 139

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in the case of Ramji Veerji Patel and Ors. v/s. Revenue Divisional
Officer Ors.5 observed the L.A. Act had failed to redress all the
concerns and expressed an expectation that the law-makers should
come out with a comprehensive land acquisition enactment. These
deliberations led to initiation of the legislature process to bring about
a new law governing acquisition in the country.

17. On 1 January 2014, the new law for acquisition i.e. the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, was brought into force.
Section 2 of the RFCTLARR Act provides for application of the Act
to various land acquisitions. It classifies acquisition of lands in three
categories. The Act applies when the appropriate Government
acquires the land for its own use, including Public Sector
Undertakings, and for public purpose. Public purpose includes
Defence, Infrastructure Projects, rehabilitation of project affected
families, Housing Projects, Projects for planned development and
improvement of villages, projects for the poor and landless persons.
The provisions of the Act also apply when the land is acquired for
private partnership for public use and certain other categories in
respect of private companies. Section 3 of the Act defines the terms
occurring in the Enactment, such as ‘affected family’, ‘company’,
‘displaced family’, ‘infrastructure projects’, ‘person interested’,
‘public purpose’, etc.
5 2011 (10) SCC 643

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18. Chapter II of the RFCTLARR Act deals with the
determination of social impact, and public purpose. In part A of
Chapter II, preliminary investigation for determination of social
impact and public purpose is contemplated. Appraisal of Social
Impact Assessment report by an expert group is provided under Part
B. Chapter III deals with special provisions to safeguard food
security. Chapter IV deals with aspect of preliminary survey of land,
payment for damages. Section 14 provides that if preliminary
notification under Section 11 is not issued within twelve months
from the date of appraisal of Social Impact Assessment report, then
the report shall lapse. Under Section 15, a provision is made for
hearing the objections. Section 19 deals with publication of
declaration and for rehabilitation and resettlement. Section 24 deals
with acquisitions initiated under L.A. Act. Section 24(2) deals with
lapsing of land acquisition process initiated under the L.A. Act.
Factors for determination of amount of compensation are provided
under this Chapter.

19. The RFCTLARR Act provides for procedure and
manner of rehabilitation and resettlement. It establishes a National
Monitoring Committee for rehabilitation. It also establishes a
Land Acquisition Rehabilitation and Resettlement Authority.
Apportionment of compensation is provided under Chapter IX. The
manner of payment of compensation is enumerated in Chapter X.

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Section 107 of the Act clarifies that nothing in the RFCTLARR Act
would prevent any State from enacting any law to enhance or add to
the entitlement and to confer higher compensation than payable
under this Act. The power of Appropriate Government to make
rules has been indicated in Section 109 and the topics on which rules
may framed are enumerated in Section 109(2). The RFCTLARR
Act, amongst others, addresses social issues that arise from large scale
infrastructural projects and provides for fair compensation,
rehabilitation and resettlement which result from Mega-Projects.

20. Section 24(2) of the RFCTLARR Act provides that in
case of land acquisition proceedings initiated under the Land
Acquisition Act, where an award under Section 11 is made five years
or more prior to the commencement of this Act but the physical
possession of the land has not been taken, or the compensation has
not been paid, the said proceedings shall be deemed to have lapsed.
Therefore, the landholders whose lands were reserved and acquired
under the MRTP Act sought to raise an issue to whether section
24(2) of RFCTLARR Act would apply to the acquisitions under
chapter VII of the MRTP Act.

21. One such landowner, whose land was acquired pursuant
to the provisions of the MRTP Act by an award dated 29 January
2008 approached the Nagpur Bench of this Court. He contended

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that he was in possession of the land, the award was five years before
the stipulated date, and therefore he was entitled to a declaration that
the land acquisition proceedings have lapsed in view of the
provisions of Section 24(2) of the RFCTLARR Act. The State
Government opposed the relief. The State contended that Section
24(2) does not apply to the land acquisition proceedings initiated
under the MRTP Act. The State relied upon the decision of the
Constitution Bench in the case of Girnar Traders (3) to contend that
the MRTP Act is a code in itself. The Division Bench (V.A.Naik
and A.M.Badar, JJ), after considering the rival contentions and
examining the statutory provisions, held that the provisions of
Section 24(2) of the RFCTLARR Act as regard lapsing of acquisition
do not apply to the acquisition initiated under the provisions of
MRTP Act. The Division Bench dismissed the petitions by the
decision dated 6 May 2015 reported as Hanumanrao Morbaji
Gudadhe Ors. v/s. State of Maharashtra Ors.6

22. In the meanwhile, exercising the powers under the
RFCTLARR Act, the State of Maharashtra framed rules titled the
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement (Maharashtra) Rules of 2013.
These Rules deal with the social impact assessment, procedure for
hearing, the requirement of consent, notification, rehabilitation and
a resettlement scheme. As regards the MRTP Act, the Rule 19 states
6 2015(6) Mah. Law Journal 127.

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that if an award has not been declared before 31 December 2013,
the proceedings shall continue as per the formula provided under
Section 26 to 30 of the RFCTLARR Act.

23. The Maharashtra Act of 42 of 2015 amended the
MRTP Act with effect from 29 August 2015 where the reference to
the L.A. Act was replaced with the RFCTLARR Act. By the same
amending Act a proviso to Section 125 was added, stating that the
procedure specified in Section 4 to 15 of the RFCTLARR Act shall
not be applicable to such lands.

24. Several writ petitions seeking application of Section
24(2) of the RFCTLARR Act were pending at the Principal Seat
and Aurangabad Bench of the Court. One such petition, which is
the lead petition in this group is the Writ Petition No. 2827 of
2014. In this case the land in question was reserved for recreation
ground in the Draft Development Plan for Greater Mumbai. It
continued to be reserved for a recreation ground. On 12 November
1992, the final development plan was sanctioned, and the
reservation for a recreational ground was confirmed. The Petitioners
claimed that a purchase notice under the MRTP Act was given and
proceeded on the assumption that the reservation had lapsed and
submitted plans for the development of the land. On 29 January
2002, the Additional Collector issued a notification under Section
126 of the MRTP Act read with Section 6 of the L.A. Act for

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acquisition. A writ petition was filed, which was disposed of
directing the authorities to make an award within twelve months.
One more petition was filed, and during the pendency of the second
writ petition, an award was declared on 29 November 2008. The
pending writ petition was amended to challenge the award, as well as
the reference under Section 18 of L.A. Act was made. The Court did
not grant any interim relief in favour of the Petitioner. Thereafter,
from January 2010 till December 2013 correspondence ensued
between the parties. After the RFCTLARR Act came into force on 1
January 2014, a letter was addressed by the Petitioners to the
authorities claiming lapsing of acquisition. The Petitioners
contended that acquisition proceedings taken pursuant to the
reservation for recreational ground have lapsed under Section 24(2)
of the RFCTLARR Act, since possession is not yet taken and
compensation is not paid. The State Government and the Municipal
Corporation inter-alia contended that this provision is not
applicable. In the other connected writ petitions, the question of law
raised is identical.

25. These Petitions came up before the Division Bench
(Dr.Manjula Chellur CJ and G.S.Kulkarni J). The Petitioners argued
that the decision of the Division Bench in Hanumanrao Morbaji
Gudadhe does not lay down the correct law. It was contended that
there is a change in legal position, as a proviso to Section 125 MRTP

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Act has been enacted, amendments have been carried out in MRTP
Act and Rules are framed by the State government under the
RFCTLARR Act. The Bench opined that the issue was of vital
public importance and by order dated 19 January 2017 sought a
reference to the larger bench to decide as to whether Section 24(2)
of RFCTLARR Act applies to the acquisition proceedings under the
MRTP Act. Thereupon the Hon’ble Chief Justice constituted this
Full Bench to determine the question.

26. We have heard the learned Counsel for parties in
extentio. We requested Mr. Janak Dwarkadas and Mr. Aspi Chinoy,
learned Senior Advocates to assist us as amicus curie. The members
of the bar were permitted to address on the legal issue.

27. In support of the preposition that Section 24 of the
RFCTLARR Act will apply to acquisition under Chapter VII of the
MRTP Act, arguments were led by Mr. G.S. Godbole, learned
Advocate with inputs from Mr. Ronghe, learned Advocate. Mr. A.V.
Anturkar, learned Senior Advocate, as an intervenor supported this
proposition. On behalf of the respondents, Mr. A.A. Kumbhakoni,
learned Advocate General, Mr. A.Y. Sakhare, learned Senior
Advocate, Mr. Vijay Patil, learned Advocate advanced submissions
in support of the contra-proposition that Section 24 cannot be made
applicable. Mr. Janak Dwarkadas, learned Amicus Curiae was of the
opinion that Section 24(2) cannot be made applicable to Chapter

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VII of MRTP Act as law in Girnar (3) is binding and advanced
submissions accordingly. Mr. Aspi Chinoy, learned Amicus Curie
expressed that amendment 42 of 2015, by which proviso to Section
125 of MRTP Act has been enacted, may perhaps assist the
Petitioners to contend that Section 24(2) of the RFCTLARR Act can
be made applicable.

28. In support of the proposition that Section 24(2) of
RFCTLARR Act is applicable to acquisitions of Chapter VII under
MRTP Act, in short, the following contentions were advanced.

(i) By Maharashtra Act XLII of 2015, the MRTP Act has been
amended to substitute the LA Act with RFCTLARR Act on account
of repeal of L.A. Act of 1894 it’s substitution with RFCTLARR Act
and a proviso has been incorporated in Section 125. The State
legislature has only made provisions 4 to 15 of the RFCTLARR Act
inapplicable and not the other provisions and what needs to be seen
is whether contra-intention as contemplated under Section 8 of
General Clauses Act, is evident. In view of this position the decision
in the case of Girnar(3) is no longer applicable.

(ii) Since the proviso to Section 125 states that only the provisions
of Section 4 to 15 of L.A. Act are not made applicable, it is implied
that the legislature has made the other provisions of RFCTLARR
Act applicable to MRTP Act.

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(iii) L.A. Act of 1894 was a legislation by incorporation and there
was not incorporation by reference. The Apex Court applied a
doctrine of pith and substance. Based on this position, the Apex
Court in Girnar (3) held that Section 11A would not get
incorporated. There was no question of contrary intention as
contemplated under Section 8 of General Clauses Act then. This
position has now undergone a change.

(iv) In the case of Karnail Kaur v/s. State of Punjab7 the Apex
Court has held that even if the land is reserved under the Punjab
Regional Town Planning Act, in case of a acquisition, Section 24(2)
of the RFCTLARR Act is applicable. The provisions of the MRTP
Act and the Punjab Regional Town Planning Act, 1995 are identical.

(v) Application of Section 24(2) of RFCTLARR Act will not
defeat or frustrate the object of MRTP Act as lapsing of a acquisition
is different than lapsing of a reservation. If Section 24(2) is made
applicable then only consequences would be acquisition would lapse,
and the appropriate government will have to initiate fresh
proceedings for acquisition, however, the reservation for public
purpose would continue.

7 2015(1 ) Scale 598

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(vi) Section 24(2) of the RFCTLARR Act deals with lapsing of an
award as contra-distinguishing from lapsing of the acquisition under
Section 11A and therefore decision of Girnar (3) cannot be made
applicable. Therefore, only consequences that would arise is
payment of higher compensation to the person whose land has been
compulsory acquired. Even if the appropriate government does not
choose to reacquire the land, the reservation will continue to exist
and the object of MRTP Act will not be frustrated.

(vii) Various anomalous situations will arise if Section 24(2) is not
made applicable.

(viii) In the decision of Girnar (3), the effect of the deeming
provision in Section 126(2) of MRTP Act relating to the declaration
be duly made under Section 6 of the L.A. Act was not advanced.
This provision will make it clear that the acquisition under Section
126(2) of the MRTP Act is in fact under the L.A. Act. The
acquisition proceedings under the L.A. Act and cannot be stated to
be initiated under the MRTP Act.

(ix) In view of the introduction of the proviso to Section 125 of
MRTP Act, the basis of Girnar (3) is taken away, which any case is
an authority for applicability of Section 11A and nothing more.

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(x) Section 11A of the L.A. Act deals with the situation before the
Award and Section 24(2) RFCTLARR Act deal with situation
post-award and these two concepts are fundamentally different.

(xi) The decision of Girnar (3) therefore cannot be made
applicable, and Section 24(2) will have to be applied to acquisitions
under Chapter VII of MRTP Act.

29. In support of the proposition that Section 24(2) of the
RFCTLARR Act cannot be made applicable to acquisition under
Chapter VII of the MRTP Act, it was, in short, contended as under :-

(i) The decision of Girnar (3) of the Constitution Bench is clear
and will have to be made applicable and is binding. No provision
which applies different time frames and lapsing of acquisition by
default can be made applicable to MRTP Act. The decision Girnar
(3) cannot be restricted to Section 11A of L.A. Act alone.

(ii) The MRTP Act is a code in itself, and there is no change in the
MRTP Act. Thus, there is no change in the law declared by the
Apex Court in Girnar (3).

(iii) Section 24(2) of RFCTLARR Act speaks of “initiation under
the Land Acquisition Act” therefore when the acquisition is initiated

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under Chapter VII of the MRTP Act , Section 24 cannot be made
applicable.

(iv) The amendment of 2015 to MRTP Act introducing a proviso
to Section 125 does not affect the decision of Girnar (3). The
proviso is only to Section 125. Even otherwise given the scheme of
MRTP Act, Section 4 to 15 stand excluded and the proviso only
clarifies the existing position.

(v) Section 8 of General Clauses Act will apply only to a provision
and not when the entire enactment has been repealed. Even
otherwise Section 8 cannot apply since the reference to RFCTLARR
Act is a legislation by Incorporation. Furthermore the MRTP Act is
a complete code.

30. We have considered the rival contentions. As suggested
by the learned Advocate General, which is not opposed, we have
rephrased the question referred, to bring the issue in a sharper focus.
The debate lies in a narrow ambit. In view of the decision of the
Constitution Bench in Girnar (3), the law is settled that Section 11A
of L.A. Act is not applicable to acquisition under Section 125 to 127
of MRTP Act. The Petitioners are attempting to restrict the dicta of
Girnar (3) only to Section 11A of L.A. Act contending that it
cannot be extended to Section 24(2) of RFCTLARR Act. According
to them, the subsequent changes in the law also have made has made

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the ratio of Girnar (3) inapplicable. If we hold that the law declared
by the Constitution Bench in Girnar (3) holds the field and is made
applicable even to Section 24(2) of the RFCTLARR Act, then the
Reference will have to be answered in negative. Only if the
Petitioners succeed in their endeavour to establish that Girnar (3) is
no longer applicable, then the issue is open for consideration. It is
necessary to analyse the decision of Girnar (3) to cull out the ratio
underlying the decision. It will have to be examined whether
subsequent changes in the law such as, enactment of RFCTLARR
Act, amendments to MRTP Act and framing of Rules by the State
of Maharashtra under RFCTLARR Act have made any difference to
the law laid down by the Constitution Bench.

31. The relevant provisions are reproduced for ready
reference. In Chapter VII of the MRTP Act, the relevant provisions
are Section 125 and 126. Section 127 is of ancillary interest.
Section 125 and 126 read as under :-

“125. Compulsory acquisition of land needed for
purposes of regional plan, development or town
planning schemes, etc. – Any land required, reserved or
designated in a Regional Plan, Development Plan or
Town Planning Scheme for a public purpose or
purposes, including plans for any area of comprehensive
development or for any new town shall be deemed to be
land needed for a public purpose [within the meaning of
the Right to Fair Compensation and Transparency in

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Land Acquisition, Rehabilitation and Resettlement Act,
2013] :

[Provided that, the procedure specified in Sections 4 to
5 (both inclusive) of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 shall not be applicable in
respect of such lands.]”

**
“126. Acquisition of land required for public purposes
specified in plans.

(1) When after the publication of a draft regional Plan, 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 113A acquire the land, –

(a) by agreement by paying an amount agreed to, or

(b) in lieu of any such amount, by granting the land-
owner or the lessee, subject, however, to the lessee-
paying the lessor or depositing with the Planning
Authority, Development Authority or Appropriate
Authority, as the case may be, for payment to the lessor,
an amount equivalent to the value of the lessor’s interest
to be determined by any of the said Authorities
concerned on the basis of the principles laid down in the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013,
Floor Space Index (FSI) or Transferable Development
Rights (TDR) against the area of land surrendered free
of cost and free from all encumbrances, and also further

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additional Floor Space Index or Transferable
Development Rights against the development or
construction of the amenity on the surrendered land at
his cost, as the Final Development Control Regulations
prepared in this behalf provide, or

(c) by making an application to the State
Government for acquiring such land under the
provisions of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013,

and the land (together with the amenity, if any, so
developed or constructed) so acquired by agreement or
by grant of Floor Space Index or additional Floor Space
Index or Transferable Development Rights under this
sections or under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013, as the case
may be, shall vest absolutely free from all encumbrances
in the Planning Authority, Development Authority, or
as the case may be, any Appropriate Authority.

(2) On receipt of such application, if the State
Government is satisfied that the land specified in the
application is needed for the public purpose therein
specified, or if the State Government (except in cases
falling under section 49 and except as provided in
section 113A) itself is of opinion that any land included
in any such plan is needed for any public purpose, it
may make a declaration to that effect in the Official
Gazette, in the manner provided in section 19 of the
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act,
2013], in respect of the said land. The declaration so

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published shall, notwithstanding anything contained in
the said Act, be deemed to be a declaration duly made
under the said section :

[Provided that, subject to the provisions of sub- section
(4), no such declaration shall be made after the expiry of
one year from the date of publication of the draft
Regional Plan, Development Plan or any other Plan, or
Scheme, as the case may be.]
(3) On publication of a declaration under the said
section 19, the Collector shall proceed to take order for
the acquisition of the land under the said Act; and the
provisions of that Act shall apply to the acquisition of
the said land, with the modification that the market
value of the land shall be, –

(i) where the land is to be acquired for the
purposes of a new town, the market value prevailing on
the date of publication of the notification constituting or
declaring the Development Authority for such town;

(ii) where the land is acquired for the purposes of a
Special Planning Authority, the market value prevailing
on the date of publication of the notification of the area
as an undeveloped area;

and

(iii) in any other case the market value on the date
of publication of the interim development plan, the
draft development plan or the plan for the area or areas
for comprehensive development, whichever is earlier, or
as the case may be, the date or publication of the draft
town planning scheme :

Provided that, nothing in this sub-section shall affect the
date for the purpose of determining the market value of
land in respect of which proceedings for acquisition
commenced before the commencement of the

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Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972:

Provided further that, for the purpose of clause (ii) of
this sub-section, the market value in respect of land
included in any undeveloped area notified under sub-
section (1) of section 40 prior to the commencement of
the Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972, shall be the market value
prevailing on the date of such commencement.
(4) 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 provisions of the Right to Fair
Compensation and Transparency in Land Acquisition
Rehabilitation and Resettlement Act, 2013, 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.”

**

32. Section 11A of the L.A. Act reads as under :-

“11A. Period within which an award shall be made.–(1)
The Collector shall make an award under section 11
within a period of two years from the date of the
publication of the declaration and if no award is made
within that period, the entire proceedings for the
acquisition of the land shall lapse:

Provided that in a case where the said declaration has
been published before the commencement of the Land

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Acquisition (Amendment) Act, 1984, the award shall be
made within a period of two years from such
commencement.

Explanation.–In computing the period of two years
referred to in this section the period during which any
action or proceeding to be taken in pursuance of the said
declaration is stayed by an order of a Court shall be
excluded.”

**

33. Section 24 of the RFCTLARR Act is reproduced as under :-

“24. Land acquisition process under Act No.1 of 1894
shall be deemed to have lapsed in certain cases : – (1)
Notwithstanding anything contained in this Act, in any
case of land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (1 of 1894), –

(a) where no award under Section 11 of the said
Land Acquisition Act has been made, then all provisions
of this Act relating to the determination of
compensation shall apply; or

(b) where an award under said Section 11 has been
made, then such proceedings shall continue under the
provisions of the said land Acquisition Act, as if the said
Act has not been repealed.

(2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894 (1 of
1894), whereas award under the said Section 11 has
been made five years or more prior to the
commencement of this Act but the physical possession
of the land has not been taken or the compensation has
not been paid the said proceedings shall be deemed to
have lapsed and the appropriate Government, if it so

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chooses, shall initiate the proceedings of such land
acquisition afresh in accordance with the provisions of
this Act:

Provided that where an award has been made and
compensation in respect of a majority of land holdings
has not been deposited in the account of the
beneficiaries, then, all beneficiaries specified in the
notification for acquisition under Section 4 of the said
Land Acquisition Act, shall be entitled to compensation
in accordance with the provisions of this Act.”

**

34. When the appeal filed by the Girnar Traders in the
Supreme Court first came up for consideration of the two learned
Judges, they found that a question of importance has arisen, which
needs to be referred to a larger bench. This question was referred to
the bench of three Judges who in turn referred the same to the
Constitution Bench. The genesis of the reference to the
Constitution Bench is in paragraph 20 in the decision of Girnar (1).

“20. We, therefore, see no good reason as to why the
provisions introduced in the Land Acquisition Act,
1894 by Central Act 68 of 1984 should not be read
into an acquisition under Chapter VII of the MRTP
Act, to the extent not precluded by the MRTP Act,
1966. Section 11A being one such section, it may have
to be applied to the acquisition under Chapter VII of
the MRTP Act.” (emphasis supplied)

Though at that time the two learned judges opined that Section 11A
could be made applicable, what is of important is to note that Section

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11A alone was not under consideration, but it was referred to as one
such Section.

35. We will now proceed to examine the decision in Girnar
(3). A comprehensive analysis of this decision and the ones followed
it, is necessary in view of the attempt of the Petitioners to dilute their
ratio.

36. To answer the question referred to it the Bench of five
learned judges took note of several decisions and made a detailed
analysis of the statutory provisions. The MRTP Act is enacted for
planned development. Before the Act came into force, there was no
provision to control the development of land in peripheral areas
outside municipal limits which resulted in haphazard development.
The object of regional planning is to facilitate appropriate use of the
land. The Bench noted that the scheme of MRTP Act primarily
focuses on planning and development of land in the State of
Maharashtra. The expression “development” under Section 2(vii) of
MRTP Act is defined in wide terms.

37. In the course of discussion in the report, the
Constitution Bench compared the provisions of amended and un-
amended Section 127 of MRTP Act which dealt with lapsing of
reservation. It noticed that the legislature was aware of that provision
of Section 11A permitted lapse of entire acquisition proceedings

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after prescribed period, yet the legislature opted to amend Section
127 by the Amendment Act of 2009 in the manner it has been
amended. The Constitution Bench culled out a legislative intent
from the said amendment to complete all proceedings within the
framework of the MRTP Act. The Bench further observed that the
primary object of the MRTP Act being planned development, the
acquisition of land would take place only when the land is reserved,
designated or required. MRTP Act provides as to how the
Development Plan shall be prepared, notified and implemented. A
mechanism for planning, implementation and adjudicatory process is
specifically provided under MRTP Act. The bench stressed that the
MRTP Act is dependent on L.A. Act for a limited purpose of
completing the process for determining the compensation.

38. The Constitution Bench scrutinized the provisions of the
L.A. Act and noted that the acquisition proceedings commenced
with the issuance of notification under Section 4 of the L.A. Act,
against which interested persons can file objections under Section
5A, leading to a declaration under Section 6 and then an award. The
acquisition proceedings are commenced with the issuance of
notification under Section 4 of the L.A. Act and would end with the
payment of compensation for such an acquired land. A detailed
comparison of provisions of L.A. Act and MRTP Act in a tabular
form was undertaken.

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39. The Constitution Bench expounded the concept of self-
contained code. For an enactment to be in self-contained code, it
must be in complete legislation purpose for which it is enacted. The
Bench then analysed the MRTP Act and held that it is a self-
contained code. The rationale for this conclusion of the
Constitution Bench is as follows. The principal object of MRTP Act
is planned development in the State of Maharashtra by preparing
Development Plans for Regions, Town Planning Schemes and
constitution of various authorities to achieve the said purpose.
Incidentally, it includes the function of acquisition of land but for a
very limited purpose. The acquisition under MRTP Act has to be of
the land which is required, reserved or designated under any
Development Plan. The Act establishes authorities, their respective
power, and functions for attaining the object of the Act. A complete
scheme is provided under the MRTP Act for the planned
development. Various steps are required to be taken by the
authorities, right from the stage of preparation of Draft
Development Plan to its finalization, and also preparation and
finalization of all Regional and Town Planning Schemes. The
MRTP Act spells out as to how these schemes are to be implemented
and by whom. The right of the interested person to raise objections,
pre-finalization of the respective plans, is specifically provided. The
authority before whom such objections are to be raised and who is to

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be granted a hearing and by whom is specified. All aspects, right
from the initial stage to its final execution are laid down. The MRTP
Act also provides machinery for finalization and determination of
disputes between the authorities and private parties. Furthermore, a
person is entitled to raise all disputes including the dispute of
ownership. An Arbitrator nominated under the MRTP Act has the
jurisdiction to decide all such matters. Some of his decisions are final,
while on most of other decisions, an appeal lies to the Tribunal. The
MRTP Act apart from being a code in itself has a primary focus on
planned development and other matters are incidental. The
provisions of the MRTP Act have to be implemented in their own
field. For preparation, approval and execution of the development
plans the MRTP Act hardly depends on the provisions of the Land
Acquisition Act. Some provisions of the MRTP Act have specifically
referred to some of the provisions of the L.A. Act but for the limited
purpose of acquiring land. With this reasoning, the Constitution
Bench concluded:

“85. There can hardly be any hesitation in concluding
that the MRTP Act is a self-contained code and does not
lose its colour or content of being a self-contained code
merely because it makes a reference to some of the
provisions of Land Acquisition Act for acquisition of
land for the purpose of MRTP Act and determination of
compensation in that behalf. The referred provisions of
the Land Acquisition Act may only be taken recourse to
that limited extent, within the extensive framework and
for the purpose of MRTP Act. Therefore, MRTP Act is

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an Act which completely provides for various steps in
relation to execution of its object, constitution of various
authorities to implement the underlying scheme of
planned development, machinery for interested persons
to raise their claims for adjudication under the
provisions of this Act or at best to an authority referred
to in the Act. Thus, we have no hesitation in holding
that the MRTP Act is a complete code in itself. Whether
the provisions of the Central Act 68 of 1984, with
particular reference to Section 11A, can be read into and
treated as part of the MRTP Act on the principle of
either legislation by reference or legislation by
incorporation?”

(emphasis supplied)

40. The Constitution Bench dealt with the aspect as to
whether Section 11A could be read into in the MRTP Act either on
the principal of legislation by Reference or legislation by
Incorporation. The Constitution Bench made it clear that having
once held that the MRTP Act is a Code in itself, the application of
either of the doctrines that is the legislation by Reference and
legislation by Incorporation would lose its significance, particularly
when two Acts exist and operate without conflict. The Constitution
Bench considered this aspect as an alternate submission to that effect
was made. Section 8 of the General Clauses Act was also alluded to
by the Bench. The Bench observed that both, the MRTP Act and
L.A. Act are codes within themselves. The State Legislature, while
enacting the MRTP Act referred to the specific sections of the L.A.

Act in the provisions of the MRTP Act. None of the sections require

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application of the provisions of the L.A. Act generally. On the
contrary, there is a specific reference to certain sections of the L. A.
Act in the provisions of the MRTP Act. The Bench also observed
that Section 126(2) of the MRTP Act refers to Section 6 only for
format and the acquisition proceedings commence by issuance of
declaration under Section 126(2). The amendment to Section 127
of the MRTP Act indicated a legislative intent to exclude application
of Section 11A. After a detailed analysis, the Apex Court held that it
was a case of legislation by Incorporation and the reference to
provision of the L.A. Act is specific as opposed to general. The
Constitution Bench observed that it would lead to irresolvable
conflict if a provision like Section 11A of L.A. Act to be read with
MRTP Act.

41. Having held that L.A. Act was a case of legislation by
incorporation in MRTP Act, the Constitution Bench in Girnar (3)
then proceeded to analyse the doctrine of pith and substance and
harmonious construction of the statutes. After a detailed analysis on
that issue, the Bench observed that if doctrine of pith and substance
is applied to the case in hand, it is clear that in substance the MRTP
Act was for planned development, unlike the L.A. Act whose object
to acquire the land and disburse compensation. The Bench further
observed thus : It is more than clear that in substance the MRTP
Act is aimed at planned development, unlike the L.A. Act where the
object is to acquire land and disburse compensation in accordance

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with law. Only those provisions of the L.A. Act which apply to
acquisition of land, determination and disbursement of
compensation as per law, can be read into the MRTP Act, but of the
provisions of the L.A. Act relating to default and consequences
thereof, including lapsing of acquisition proceedings, cannot be read
into the MRTP Act. It is for this reason that neither they have been
specifically incorporated into MRTP Act nor they can be absorbed
objectively into that statute. The bench categorically observed that if
provisions such as Section 11A are read as part of the MRTP Act,
they will destroy the very essence, object and purpose of this
enactment.

42. In conclusion, the Constitution Bench answered the
Reference in Girnar (3) thus :-

“191. Having said so, now we proceed to record our
answer to the proposition referred to the larger Bench as
follows :

“For the reasons stated in this judgement, we hold that
the MRTP Act is a self-contained code. Further, we hold
that provisions introduced in the Land Acquisition Act,
1894 by Central Act 68 of 1984, limited to the extent of
acquisition of land, payment of compensation and
recourse to legal remedies provided under the said Act,
can be read into an acquisition controlled by the
provisions of Chapter VII of the MRTP Act but with a
specific exception that the provisions of the Land
Acquisition Act in so far as they provide different time
frames and consequences of default thereof including

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lapsing of acquisition proceedings cannot be read into
the MRTP Act. Section 11A of the Land Acquisition Act
being one of such provisions cannot be applied to the
acquisitions under Chapter VII of the MRTP Act.”

(emphasis supplied)

43. In the case of Offshore Holdings, the Constitution
Bench considered the provisions of the Bangalore Development
Authority Act to ascertain if Section 11A of the L.A. Act could be
made applicable. It is to be noted that the provisions akin to the
Chapter VII of the MRTP Act is not found in the BDA Act.

However, the Constitution Bench, after analysis of the provision of
BDA Act found that it was complete code and its primary object is
planned development, Section 11A and a provision regarding
lapsing could not be made applicable. The Constitution Bench in
the case of Offshore answered the reference as under :-

“125. Having said so, now we proceed to record our
answer to the question referred to the larger Bench as
follows :

For the reasons stated in this judgment, we hold
that the BDA Act is a self-contained code. Further, we
hold that provisions introduced in the Land Acquisition
Act, 1894 by Central Act 68 of 1984, limited to the
extent of acquisition of land, payment of compensation
and recourse to legal remedies provided under the said
Act, can be read into an acquisition controlled by the
provisions of the BDA Act but with a specific exception
that the provisions of the Land Acquisition Act insofar as
they provide different time-frames and consequences of

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default thereof, including lapsing of acquisition
proceedings, cannot be read into the BDA Act. Section
11A of the Land Acquisition Act being one of such
provisions cannot be applied to the acquisitions under
the provisions of the BDA Act.”

This is how the Constitution Bench in both these cases analysed the
provisions and laid down the law regarding the town planning laws,
which are code in themselves.

44. Now to consider the rival contentions advanced. First
we will consider the contention of Mr. Anturkar based on deeming
provision in Section 126(2) of the MRTP Act. According to Mr.
Anturkar, the Section 126(2) of the MRTP Act had categorically
stated that the notification issued therein would be deemed to be a
declaration duly made under Section 6 of the L.A. Act. He
contended that this facet was not argued before the Constitution
Bench in Girnar (3), and it is open to this Full Bench to consider the
same on its own merits and to come to a conclusion different than
the Constitution Bench. Mr. Anturkar relied upon various
Judgements to contend that a decision of the Superior Court cannot
be read as a statute and a ratio cannot be culled out from few stray
observations.

45. We have chosen to deal this submission out of turn for a
reason. In view of the free ranging arguments at the bar during the
hearing it has necessary for us ringfence the discussion by drawing

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the contours of the enquiry. It is also necessary to highlight the
legal position governing the exposition of law by the Constitution
Bench and its binding nature.

46. The concept of Constitution Bench is traceable to Article
145 of the Constitution of India. This article confers rule-
making power on the Supreme Court to regulate generally the
practice and procedure of the Court. Article 146(3) lays down that
minimum number of Judges to sit for the purpose of deciding a
substantial question of law as to the interpretation of the
constitution, shall be five in number. Article 146(3) mandates that
the substantial questions of law as to the interpretation of the
constitution are to be decided by a bench not less than five Judges.
When such a question of interpretation of the Constitution arises
before a bench of lesser number of Judges, the matter is referred to
the bench of five Judges, thus known as a Constitution Bench.
Reading the Article 146(3) along with Article 141, it is clear that the
authoritative pronouncement of a Constitution Bench declaring a
position of law is final and must be followed by all Courts, including
the Benches of the supreme court of a strength smaller than five.
The purpose of referring a question to the Constitution Bench is to
give a quietus to the legal controversies and bring about a certainty
in law.

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47. In the case of South Central Railway Employees Co-
operative Credit Society Employees Union v/s. B. Yashodabai and
Ors.8, the bench of three learned Judges of the Supreme Court held
that when a higher Court has given a particular decision, the lawyers
and litigants cannot be permitted to argue that something that was
correct but was not argued before the higher Court and try to
distinguish the judgement on that ground. The bench cautioned
that it merely on that ground the Courts are permitted to take a
different view, then the entire law regarding precedents will be in
jeopardy. As regards the binding nature of precedents, even in
respect of the benches of the Supreme Court with lesser number of
judges than the Constitution Bench, the law is settled. In the case of
Official Liquidator v/s. Dayanand Ors.9, the bench of three
learned Judges of the Supreme Court had occasion to deal with a
judgement of two learned Judges of the Court in U.P. SEB v/s.
Pooran Chandra Pandey10. The Bench of two learned Judges had
expressed doubt in respect of the correctness of the Constitution
Bench presiding in the case of State of Karnataka v/s. Umadevi (3)11.
The three learned Judges in Official Liquidator discussed the law
regarding precedents and noted with disapproval the instances when
benches of the High Court had gone to the extent of questioning the

8 2015(2) SCC 727
9 2008(10) SCC 1
10 2007(11) SCC 92
11 2006(4) SCC 1

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law laid down by the Apex Court. The learned Judges in this
decision emphasised the nature of the binding precedents.

48. Therefore, even though the learned Counsel for the
Petitioners have attempted to distinguish the decision in the case of
Girnar (3) and have also attempted to urge that a particular aspect
was not argued, while dealing with these submissions, we have to be
mindful of the hierarchical system of Courts and the resultant need
of judicial discipline.

49. Continuing further on the submission made by Mr.
Anturkar, even otherwise, it is not correct to contend that the effect
of Section 126(2) was not under consideration of the Constitution
Bench. As regards the contention based on deeming provision in
Section 126(2) of MRTP Act is concerned, an argument was
advanced before the Apex Court in Girnar (3). It was specifically
argued that once a notification under Section 126(2) is issued,
automatically the provisions of Section 6 and complete mechanism
for acquisition of land under L.A. Act comes into operation. In
paragraph 20, the relevant argument was referred to as under :-

“20. … the contentions raised on behalf of the
appellants are:

1….

2…

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3. In terms of Section 125 of the MRTP Act, the
purpose of acquisition shall be deemed to be a public
purpose within the meaning of the Land Acquisition
Act. The provisions of Section 126 of the MRTP Act
require application of the provisions of the Land
Acquisition Act. Once notification under Section
126(2) is issued, automatically the provisions of Section
6 and complete mechanism for acquisition of land
under the provisions of the Land Acquisition Act comes
into operation and, thus, the provisions of Section 11A
of the Land Acquisition Act would become part of such
acquisition necessarily.

4…

5…

6..

Answering this contention, after examining the scheme of Section
126 of MRTP Act, the Bench observed :-

“125. In terms of Section 126(1)(c) of the MRTP
Act, the application to the State Government has to be
made for acquiring such land under the Land
Acquisition Act. Such land refers to the lands which are
required only under the provisions of the MRTP Act.
Section 126(2) refers to Section 6 of the Land
Acquisition Act only for the purpose of format in which
the declaration has to be made. In terms of Section
126(3), on publication of the declaration, the Collector
shall proceed to take order for acquisition of the land
under the State Act, i.e. for the purpose of acquisition of
land; the procedure adopted under the Land
Acquisition Act shall be adopted by the Collector and
nothing more. The afore-referred provisions of the State

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Act clearly frame a scheme for planned development
with limited incorporation of some of the provisions of
the Land Acquisition Act.”

(emphasis supplied)
The learned judges further held that the proceedings under MRTP
Act are commenced by issuance of a declaration under Section
126(2) and thereafter further procedure is prescribed under the L.A.

Act. Bench specifically noted the reference to Section 6 of L.A. Act
under Section 126(2). Thus, it cannot possibly be contended that
Section 126(2) and the deeming provision in Section 126(2) was not
in contemplation of the learned judges. In fact, the Constitution
Bench made a specific reference to said provision and held that it is
upon the issuance of notification under Section 126, in the format
provided under Section 6 of L.A. Act, the acquisition proceedings
commence and thereafter taken for under the L.A. Act and
culminate into an award. We, therefore, cannot accept the
submission advanced by Mr. Anturkar.

50. The law laid down in Girnar (3) was further followed in
subsequent decisions in respect of other laws governing planned
development. A question arose before the bench of two learned
Judges of the Apex Court in the case of Bankalal v/s. Special Land
Acquisition Officer12 as regards the applicability of Section 11A of
L.A. Act to the Nagpur Improvement Trust Act, 1966. A
notification under Section 39 of Nagpur Improvement Trust Act,
12 2014(15) SCC 116

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1966 was issued, and the land was acquired for the Eastern
Industrial Area Street Scheme. When the matter reached the Apex
Court, an argument was advanced on behalf of the appellants that
after insertion of Section 11A of L.A. Act, there was a statutory
obligation on the part of the respondents to make an award within
stipulated period from the date of publication, failing which the
acquisition proceedings would lapse. The bench referred to the
earlier decision in the case of Nagpur Improvement Trust v/s.
Vasantrao and Ors.13 wherein it was held that the provisions of L.A.
Act are incorporated in the State Act, and subsequent amendments
to L.A. Act would have no effect. The bench also took note of
decision of the Constitution Bench in Girnar (3) and noted the ratio
therein that Section 11A will not apply to the law relating to planned
development which is a complete Code. The bench concluded that
the Nagpur Improvement Trust Act, 1966, which was enacted for
planned development, was also code in itself and therefore, Section
11A cannot be made applicable.

51. When the RFCTLARR Act came in force, a bench of
two learned Judges of the Apex Court in the case of Special Land
Acquisition Officer, KIAD v/s. Anusaya Bai 14 considered the
question of applicability of Section 24(2) of the RFCTLARR Act to
the proceedings initiated under Karnataka Industrial Areas

13 2002(7) SCC 657
14 2003(7) SCC 313

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Development Act, 1966. The Division Bench of the Karnataka
High Court had accepted the contention that Section 24(2) of
RFCTLARR Act applied to KIAD Act and had quashed the
acquisition proceedings. The decision was appealed from by the
Corporation. The Apex Court took note of the earlier decision in
the case of Munithimmaiah v/s. State of Karnataka15 regarding
applicability of Section 6 and Section 11A of the L.A. Act. In
Munithimmaiah, the Apex Court had held that KIAD Act is a code
in itself and therefore Section 11A of the L.A. Act was not
applicable. Following this law, the learned Judges in Anusaya Bai,
on parity of reasoning, held that the provisions of Section 24(2) of
the RFCTLARR Act cannot be made applicable to the KIAD Act.
The Apex Court allowed the appeal filed by the State and set aside
the decision of the Division Bench. Thus, even while considering
the provisions of Section 24(2), the Apex Court in the case of
Anusaya Bai applied the legal position of not applying the provisions
leading to lapsing of acquisition and different time frames to the
State enactments governing planned development which are codes in
themselves. The law laid down by the Constitution Bench in Girnar
(3) and Offshore Trading stood reiterated.

52. An order passed by the three Judge Bench of the Apex
Court in Gurcharan Singh and Ors. V/s. State of Punjab Ors.

15 2002(4) SCC 326

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dated 4 July 2014, was brought to our notice by Mr. Vijay Patil,
learned Advocate. The order reads thus :-

“Mr. Raju Ramachandran, learned Senior
Advocate for the Petitioners, sought to invoke Section
24(2) of Right to Fair Compensation and Transparency
in Land Acquisition, Rehabilitation and Resettlement
Act, 2013 (for short, ‘the 2013 Act’) and submitted that
acquisition proceedings have lapsed.

Mr. Salil Sagar, learned Senior Advocate for the
Respondent No.2 submits that acquisition in the present
case was initiated and concluded under the Punjab Town
Improvement Act, 1922.

Section 24 of the 2013 Act reads as under :-
“24. Land acquisition process under Act No. 1 of 1894
shall be deemed to have lapsed in certain cases – (1)
Notwithstanding anything contained in this Act, in any
case of land acquisition proceedings initiated under the
Land Acquisition Act, 1894 (1 of 1894) –

(a) where no award under Section 11 of the said
Land Acquisition Act has been made, then, all
provisions of this act relating to the determination
of compensation shall apply; or

(b) where an award under said Section 11 has been
made, then such proceedings shall continue under
the provisions of the said Land Acquisition Act, as
if the said Act has not been repealed.

(2) Notwithstanding anything contained in sub-
section (1), in case of land acquisition proceedings
initiated under the Land Acquisition Act, 1894,
where an award under the said Section 11 has been

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made five years or more prior to the
commencement of this Act but the physical
possession of the land has not been taken or the
compensation has not been paid the said
proceedings shall be deemed to have lapsed and the
appropriate Government, if it so chooses, shall
initiate the proceedings of such land acquisition
afresh in accordance with the provisions of this Act;

Provided that where an award has been made and
compensation in respect of a majority of
landholdings has not been deposited in the account
of the beneficiaries, then, all beneficiaries specified
in the notification for acquisition under Section 4
of the said Land Acquisition Act, shall be entitled
to compensation in accordance with the provisions
of this Act.”

A close reading of Section 24 makes it clear that
land acquisition proceedings under Land Acquisition
Act, 1894 (for short, ‘the 1894 Act’) are deemed to have
lapsed in certain cases which are indicated in the
provision. Since the acquisition of the subject land has
taken place under the 1922 Act and not under the 1894
Act, Section 24 has no application at all.

The argument concerning Section 24 of the 2013
Act and lapsing of the acquisition proceedings has no
merit and is over-ruled. The grounds raised in the
special leave petitions in challenging the impugned
judgment will be considered at the time of final disposal.

List the special leave petitions for final disposal on
a non-miscellaneous day within six months.”

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The case arose from the acquisition initiated and concluded under
the Punjab Town Improvement Act, 1992. The bench over-ruled
the arguments with acquisition of the land taken place under the
Panchayat Act and not under the L.A. Act and therefore, Section 24
had no application. It appears that though Special Leave Petition
was not disposed of on that date, the argument relating to Section 24
of the RFCTLARR Act was over-ruled and the matter was directed
to be listed for final disposal on other points.

53. The Petitioners sought to rely on the decision in the case
of Karnail Kaur v/s. State of Punjab16. We have gone through the
decision and also the text of the Punjab Regional Town Planning
Act. Though in this decision the Apex Court applied the provision
of Section 24(2) of RFCTLARR Act to the acquisition under Punjab
Regional Town Planning Act, 1955 the scheme of the Punjab Act is
materially different than the MRTP Act. There are no provisions
analogous to Chapter VII of the MRTP Act in the Punjab Act.
Chapter V of the Punjab Act provides that the State Government has
to acquire the land required for the purpose of the authority under
the provisions of the L.A. Act. The entire gamut under L.A. Act has
been incorporated for all purposes. Further, in the case of Karnail
Kaur, the preliminary notification was issued under Section 4 of the
L.A. Act for the acquisition of lands, objections were raised under
Section 5A, and a declaration issued under Section 6 of L.A. Act was
16 2015(1 ) Scale 598

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published. The entire acquisition proceedings were under the
provisions of L.A. Act. Nothing is demonstrated before us that the
provisions akin to Section 126 and 127 of the MRTP Act were
under consideration of the Apex Court in the case of Karnail Kaur.
Therefore, the decision in the Karnail Kaur will not assist the
Petitioners.

54. It was contended by Mr. Godbole that Section 11A of
the L.A. Act deals with the situation prior to award and Section
24(2) RFCTLARR Act deal with situation post award and these two
concepts are fundamentally different. In the case of Delhi
Development Authority v/s. Sukhbir Singh and Ors.17, the bench of
two learned Judges held that there is a difference in phraseology
between Section 11A of L.A. Act and Section 24(2) of the
RFCTLARR Act inasmuch as the expression used in Section 24(2) is
that “acquisition deemed to have lapsed” while in Section 11A the
expression is “lapse”. Based on these distinctions, it was argued that
even if the acquisition proceedings are permitted to lapse under
Section 24(2), all that will result will be payment of extra
compensation and the government can acquire the land again and
since the reservation will continue, the scheme of the MRTP Act will
not be disturbed.

17 2016(2) SCC 258

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55. We do not find that these differences will have a bearing
on the foundational basis of the present enquiry, because the moot
question still is the effect Section 24(2) on the planned
development, which is the prime object of the MRTP Act. None of
the Petitioners have contended, and cannot contend, that Section
24(2) does not introduce a different time frame and consequences of
default, resulting in lapsing of acquisition. The argument regarding
only lapsing of acquisition and not reservation, ignores that there
will be an introduction of an alien time frame and consequences of
defaults, which will certainly interfere with the object to achieve
under the MRTP Act. Secondly, an identical argument was rejected
by the Constitution Bench in Girnar (3). The Apex Court dealt with
this aspect and observed that:

“130. While referring to Section 6 of the Land
Acquisition Act, the State Legislature has not adopted,
specifically or otherwise, the period mentioned in
proviso to Section 6(1) of the Land Acquisition Act. On
the contrary, different time frames have been postulated
under different provisions of the MRTP Act. If those
limitations of time are not adhered to by the concerned
authorities, the consequences have also been provided
therefor. From the stage of initiation of steps for
preparation of draft plans to the finalization of the
scheme, it takes considerable time. Furthermore, its
implementation at the ground level, takes still much
more time. If this entire planned development which is a
massive project is permitted to lapse on the application
of Section 11A of the Central Act, it will have the effect

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of rendering every project of planned development
frustrated. It can hardly be an argument that the
Government can always issue fresh declaration in terms
of Section 6 of the Land Acquisition Act and take
further proceedings. Recommencement of acquisition
proceedings at different levels of the hierarchy of the
State and Planning Authority itself takes considerable
time and, thus, it will be difficult to achieve the target of
planned development.”

(emphasis supplied)

56. The Constitution Bench clarified this aspect in clear and
cogent terms to avoid attempts to fracture the law regulating the
planned development. Such time frames and consequences of
default will result in the State starting acquisition proceedings all
over again. This will frustrate a development plan and will make
substantive provision of the MRTP Act unworkable. It will be too
simplistic to assume that lapsing of acquisition but not the
reservation (if that legal position is to accepted), will not affect the
time schedule of the planning and development.

57. The above analysis in Girnar (3) and Offshore Holdings
shows that neither the Reference nor the conclusion were qua
Section 11A of L.A. Act alone. The foundation was the nature of an
enactment governing a specific purpose and which is a complete
code geared to achieve that purpose. Statutes which are code in itself
in the matter of planned development, such as the MRTP Act are

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not to be tinkered with by applying different time frames and
consequences of defaults like lapsing of acquisitions.

58. In the circumstances, there is no merit in the contentions
that the decision of Girnar (3) is restricted only to Section 11A of
the L.A. Act. Girnar (3) did not restrict itself with a particular
provision, but dealt with a wider legal concept.

59. There are various reasons why town planning laws are
necessary and why they must be allowed to operate unhindered.
Town Planning achieves various social and economic objectives.
Careful and proper planning, by providing a physical environment
conducive to health and well-being, leads to better quality of life.
Well through-out transportation facilities provide convenient and
easier commuting which in turn leads to social cohesiveness. Parks,
gardens, open spaces enrich the physical and mental health of the
residents. Planning yields economic results by increasing
productivity. Town planning is aimed at fulfilling social and
economic objectives which go beyond the physical form and
arrangement of buildings, streets, parks, utilities and other parts of
the urban environment. Town planning is thus essential for
efficiency, well-being of all and leads to increase in wealth in the
long run.

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60. While carrying out the planned development, a balance
has to be achieved between the individual rights and larger good of
the society. The MRTP Act has its own scheme for achieving such a
balance. The MRTP Act has an elaborate methodology of
identification and finalization of the need for public amenities and to
initiate the process for acquisition of the land for fulfilling the need
so determined. The MRTP Act has its checks and balances such as
Section 127, which mandates that a private land cannot be placed
under reservation indefinitely depriving the owner to put it to full
use. An embargo has been placed on the powers of the State by
providing a time limit under Section 127 within which lands so
identified needs to be acquired. If the acquisition proceedings
would lapse in this manner, it would frustrate the rights of the State
as contemplated under Section 126 as well as 127 of the Act. Such
cause of action will disturb the equilibrium of MRTP Act and cause
legal and practical impediments.

61. Thus, the position of law in its simplest sense is that
schemes of town planning laws such as the MRTP Act, which are
complete codes in themselves, cannot be disrupted by adopting
different time frames and on default consequences of lapsing of
acquisition. Such outside concepts will produce imbalances in the
functioning of these enactments.

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62. In light of the above position of law, the question is
whether there is any fundamental change in the MRTP Act. As long
as the MRTP Act continues to be a code in itself, an outside
provision introducing different time frames, consequences of default
resulting in lapsing of acquisition, cannot be made applicable to the
MRTP Act.

63. To overcome this hurdle, the petitioners sought to argue
that subsequent legislative changes have altered the character of the
MRTP Act so far as the controversy at hand is concerned. Heavy
reliance was placed on the proviso to Section 125 of the MRTP Act
amended in the year 2015. Section 125 of the MRTP Act states that
any land required, reserved or designated shall be deemed to be for
public purpose under the RFCTLARR Act (earlier L.A. Act).
Proviso was appended to Section 125 by virtue of Maharashtra Act
42 of 2015 with effect from 29 August 2015, stating that the
procedure specified in Section 4 to 15 of the RFCTLARR Act will
not apply. Based on the proviso an argument is advanced by the
Petitioner that since only Section 4 to 15 stand excluded the
legislative intent is to apply the other provisions RFCTLARR Act
such as the Section 24(2). We find no merit in this submission for
the following reasons.

64. Section 4 to 10 of RFCTLARR Act are primarily
concerned with the social impact assessment. Section 4 provides for

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the preparation of Social Impact Assessment study wherein detailed
methodology is laid down how such a study is to be carried out.
When the land is intended to be acquired for a public purpose, the
appropriate Government has to consult the concerned Panchayat,
Municipality or Municipal Corporation and carry out a Social
Impact Assessment study in consultation with them. A public
hearing for the assessment is carried out. When an assessment study
is prepared under Section 4 as per Section 6 it has to be published.
The appropriate Government has to ensure that the Social Impact
Assessment Report is evaluated by an independent Multi-
Disciplinary Expert Group consisting, amongst others two non-
official, social scientists, two experts on rehabilitation and a technical
export on the related subject project. If the expert group is of the
opinion that the acquisition is for a public purpose and potential
benefits outweigh the social costs, it will make a specific
recommendation. Social Impact Assessment report is to be
examined by the State Government. Form II prescribed under the
RFCTLARR Rules 2014 gives checklist for the Social Impact
Assessment report. The checklist inter alia includes, the extent of
agricultural use, a quality of land, soil, live-stock, food security,
access to natural resources; access to markets; demographic changes;
impacts on the norms, beliefs, values and cultural lives, separation of
family cohesion. Section 10 deals with safeguarding food security
and to ensure that no irrigated multi-cropped land is acquired.

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65. Section 11 of RFCTLARR Act deals with publication of
preliminary notification, and the powers of the officers are laid down
when the area is required or likely to be required for public purpose.
Section 12 deals with the preliminary survey of land and the power
of the officers. Section 14 refers to lapse of Social Impact
Assessment Report when the notification is not issued under Section
11 of the Act. Section 15 deals with the rights of the objectors to
lodge objections.

66. The above analysis of Section 4 to 15 of RFCTLARR
Act will show that Section 4 to 9 primarily deal with social impact
assessment. Section 10 safeguards food security. Section 11 to 14
are part of the Chapter which deals with notifications and
acquisition, which correspond to Section 4 to 6 of the L.A. Act.

67. As mentioned earlier, the MRTP Act has its own
machinery for identifying the public need and ascertaining what is
good for the society. The expression “Development” has been
defined in wide terms under the MRTP Act which is relatable to
planned development. The Act contemplates both, Regional and
Development plan as well as the Town Planning Scheme. Once the
region is notified under MRTP Act, a Regional Plan is prepared.
The plan provides for the matters contemplated under Section 14.

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The plan is open to inspection and objections and suggestions are to
be notified. The Draft Regional plan, before it is finalized, has to be
published and the objections are invited from the general public.
The Act also provides for a town planning scheme. For certain town
planning schemes, a reference to the arbitrator is provided for.
Therefore, the MRTP Act has its special methodology to ascertain
what is in the larger interest of planned development. The Act also
has its safeguards of permitting public participation in the decision
making.

68. In view of the above position, the applicability of
Section 4 to 15 of the RFCTLARR Act is hardly necessary in MRTP
Act. Since the Social Impact Assessment study is required if the
acquisition generally is to be made for a public purpose, the State
Legislature thought it fit to clarify the position that such Social
Impact Assessment study is not required when the land is to be
acquired under the MRTP Act. The special provisions to safeguard
food security and the mandate on non-acquisition of irrigated
agricultural land, are not strictly relevant to the MRTP Act. Section
11 of RFCTLARR Act is relatable to Section 4 of the L.A. Act.
Section 15 of RFCTLARR Act is relatable to Section 5A of the L.A.
Act. Even when the L.A. Act was in force, for the acquisitions
under Section 126(2) of MRTP Act operation of Section 4 and
Section 5A of the L.A. Act was excluded. Section 6 was referred to

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for the purpose of format. By excluding the application of Section 4
to 15 of the RFCTLARR Act, the legislature has merely clarified the
existing position to remove any doubt. By enacting the proviso to
Section 125 of MRTP Act, the State legislature, therefore, has not
brought in change in law, but to obviate any confusion, by way of
precaution has merely re-stated the existing position.

69. It is strenuously contended on behalf of the Petitioner
that it is the legislative intent to apply the other provisions of
RFCTLARR Act including Section 24(2) and the non-reference to
this Section in the Proviso to Section 125 of the MRTP Act would
indicate that the legislature wanted to apply Section 24(2) and to
overcome the dicta in Girnar (3). This argument cannot be
accepted. The Statement of Objects of the Maharashtra Act 42 of
2015, is placed on record. As pointed out by the learned Advocate
General, the Statement of Objects and Reasons only state that it is
necessary to replace the reference to the provisions of L.A. Act in
view of enactment of RFCTLARR Act. By this amendment, Section
127 of the MRTP Act is also amended. There is absolutely no
indication of any attempt to dilute the decision of Girnar (3).
Therefore, by merely incorporating a clarifactory proviso, it cannot
be concluded with that the legislature, by implication, wanted to
over-ride the decision of the Constitution Bench and apply a

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provision which will introduce unworkable consequences in the
statute.

70. Next contention in respect of the proviso to Section 125
of MRTP Act is based on Section 8 of the General Clauses Act,
1897. Section 8 of the General Clauses Act reads thus: –

” 8. Construction of references to repealed enactments –
(1) Where this Act, or any [Central Act] or Regulation
made after the commencement of this Act, repeals and
re-enacts, with or without modification, any provision
of a former enactment, then references in any other
enactment or in any instrument to the provision so
repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.

(2) [Where before the fifteenth day of August 1947, any
Act of Parliament of the United Kingdom repealed and
re-enacted], with or without modification, any provision
of a former enactment, then reference in any [Central
act] or in any Regulation or instrument to the provision
so repealed shall, unless a different intention appears, be
construed as references to the provision so re-enacted.]”

71. The Petitioners contended that since the L.A. Act stands
repealed by the RFCTLARR Act and the law has been re-enacted,
and unless a contrary intention appears, the reference in MRTP Act
has to be construed as reference to the provisions so re-enacted, in
view of Section 8. We have considered this submission. Since the
normal effect of a repeal is to remove the enactment from the statute

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book as if it was never passed, which may lead to various
complications, Section 8 has been enacted. This provision would
apply when there is a mere reference to a provision of one statute to
another without incorporation, then references in any other
enactment or in any instrument to the provision so repealed shall,
unless a different intention appears, be construed as references to the
provision so re-enacted. The question of legislation by
Incorporation, of a law governing land acquisition, as regards the
MRTP Act, is already concluded in Girnar (3). It was pointed out
by the learned Advocate General that Section 8 of the General
Clauses Act, and in a given case, the State General Clauses Act,
would only apply when a particular provision of the Act is repealed
and re-enacted, and it does not take into consideration the
contingency of a repeal of the entire enactment and the re-
enactment.

72. Even assuming Section 11A was repealed and re-enacted
and a provision has been brought into effect such as Section 24(2) of
RFCTLARR Act, still the dicta of the Constitution Bench not to
make a provision providing for default resulting in lapsing of
acquisition, will apply. No provision which provides different time
frame and lapsing of acquisition can be imported into the
scheme of MRTP Act. Neither by implication or by resorting to
Section 8 of General Clauses Act, this position of law can be

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overridden. No such legislative intent can be culled out from the
proviso to Section 125 nor any contra-intention is apparent. The
Petitioners are trying to build too tall an edifice from an innocuous
proviso.

73. Apart from the scheme of the MRTP Act, there is an
intrinsic indication in the Section 24(2) of RFCTLARR Act itself as
to why it cannot be made applicable. Section 24(2) is reproduced
earlier. This section will apply if the acquisition proceedings are
initiated under the Land Acquisition Act. The crucial phrase used
in Section 24(2) is “initiated under the Land Acquisition Act”. The
word “initiated” has not been defined under the RFCTLARR Act.
The phrase “initiated of Land Acquisition Act” was not used in the
L.A. Act. This phrase has been employed in the RFCTLARR Act in
Section 24. The legislature has deliberately chosen the phrase
“initiated”. Initiation is not mere presentation but consciously
putting the process in motion. The dictionary meaning of the word
initiation is “originating”, “to start”. When the RFCTLARR Act
was enacted, the decision of the Constitution Bench in respect of an
enactments dealing with planned development which are complete
codes, was holding the field and hold the field even today. The
Petitioners sought to advance various arguments as to whether
Section 4 could be initiation of proceedings or Section 6 of the Act.
The dicta of the Constitution Bench is clear. The Constitution
Bench in the Girnar (3) at more than three places in the report has

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reiterated that the proceedings under the L.A. Act commence under
Section 4 and under the MRTP Act. For the MRTP Act, there is no
notification under Section 4 and an application under Section
126(2) is to be in the format laid down under Section 6 of the L.A.
Act. Keeping this dicta in mind, the phrase “initiated under the land
acquisition Act” will have to be construed. In our opinion the
emphasis in Section 24(2) is on which authority under which Act
has initiated the proceedings. Therefore, when the legislature used
the phrase “initiated under Land Acquisition Act” it will not cover
acquisition proceedings which originate and are consciously put in
motion for acquisition for a planned development under the MRTP
Act pursuant to an application under Section 126(2). It is settled
rule of interpretation that the plain and ordinary meaning is given to
the words and only if plain meaning leads to an absurdity, then a
purposive interpretation can be resorted to. The plain meaning of
the phrase “initiated under Land Acquisition Act” cannot be
“initiated under the MRTP Act”. We are not considering a
challenge to the constitutional validity of Section 24(2), neither we
need to carry out the exercise of reading down the provision to save
it from the vice of unconstitutionality.

74. As far as effect of this interpretation of section 24(2) to
other part of section 24 is concerned, the State Government is
empowered under Section 107 of the RFCTLARR Act to enact any

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law to enhance or add any entitlement which confer higher
compensation and to make provisions for rehabilitation and
resettlement which are more beneficial. An option is also given to
the affected person to choose a better policy. Rules have been
framed by the State of Maharashtra in the year 2015. These rules are
framed by exercise of powers under Section 109 of RFCTLARR Act.
Rule 19 of the RFCTLARR Rules, 2014 reads thus :-

“19. Land Acquisition Proceedings Initiated Under
Land Acquisition Act, 1894 –

(1) ——–

(2) ————–

(3) Where the land is reserved for public purposes
according to the Maharashtra Regional Town Planning
Act, 1966 (Mah. XXXVII of 1966), and a declaration
under sub-Section (1) of Section 6 of the Land
Acquisition Act, 1894 (I of 1894) has been made before
the 31st December 2013 and an award under Section 11
of the Land Acquisition Act, 1894 (I of 1894) has not
been declared before the 31st December 2013, then the
proceeding shall be continued as per the formula
provided in Sections 26 to 30 of the Fair Compensation
and Transparency in Land Acquisition, Rehabilitation
and Resettlement Act, 2013 (30 of 2013).”

Under Rule 19(3), it is laid down that when a land is reserved for
public purpose under the MRTP Act, a declaration under Section 6
of the L.A. Act is made before 31 December 2013 and award has not

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been declared before 31 December 2013, then the proceeding shall
continue as per formula provided under RFCTLARR Act. Section
26 to 30 of RFCTLARR Act deal with the determination of the
market value, amount of compensation and determination of values
of things attached to land and the award of solution. Section 107 of
RFCTLARR Act makes it amply clear that the State is empowered to
provide better benefits in terms of compensation. In the case of
Girnar (3) the Constitution Bench has also made it clear that the
provisions in the L.A. Act regarding payment of compensation,
recourse to legal remedies provided under the Act can be read into
the acquisition controlled by the provisions of Chapter VII of the
MRTP Act. This step taken by the State Government is in
consonance with the decision of Girnar (3) as well as the State has
power to offer better compensation benefits.

75. An argument was sought to be advanced on behalf of the
Petitioners that for an acquisition under Section 126 of MRTP Act,
the land does not vest when an application is made under Section
126(2) and the observation of the Supreme Court to that effect in
the case of Manohar Joshi v/s. State of Maharashtra Ors.18 and
Girnar (3) are based on incorrect juxtaposition of the Section when
it was reproduced in the judgement as there should have been a
separate paragraph after categories (a),(b),(c) in Section 126(1). It
was contended that the vesting contemplated under this sub-para
18 2012(3) SCC 619

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applies only to categories (a) and (b) and it does not apply to (c). It
was submitted that this position has been clarified in the decision of
the Supreme Court in the case of Shrirampur Municipal Council v/s.
Satyabhamabai Bhimji Dawkher19. It is not necessary to enter into
that arena as the issue referred to this Full Bench can be decided on
other aspects of the matter as above.

76. Thus, to conclude, it is clear that since Section 24(2) of
the RFCTLARR provides different time frame and lapsing of
acquisition on default, it cannot be applied to the acquisition
initiated under Section 125 to 127 of the MRTP Act. The MRTP
Act has not undergone any change from its character as a complete
code. Section 24(2) of the RFCTLARR will apply only if the
acquisition proceedings are “initiated” under the Land Acquisition
Act, and cannot apply if they are initiated under Section 125 to 127
of the MRTP Act. The view taken by the Division Bench of this
Court in the Case of Hanumanrao Morbaji Gudadhe lays down
correct position of law that Section 24(2) of the RFCTLARR Act
cannot apply to acquisition under Section 125 to 127 of the MRTP
Act. The subsequent amendments to the MRTP Act, framing of
Rules by the State, and the proviso to Section 125 have not brought
in any change in the position of law in this regard.

19 2013(5) SCALE 179

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77. In the result, we answer the reference as under :-

“The Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 is not
applicable to acquisition proceedings initiated in terms of
Section 125 to 127 of the MRTP Act.”

78. We place on record our appreciation for the efforts taken
by all the learned Counsel appearing in the matter and especially for
the assistance rendered by Mr. Aspi Chinoy, and Mr. Janak
Dwarkadas, learned Senior Advocates as Amicus Curiae.

79. The Registry shall place the Writ Petitions before the
Division Bench for disposal.

CHIEF JUSTICE

(N.M. JAMDAR, J.)

(G.S. KULKARNI, J.)

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