REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.831 OF 2020
(@ SLP(C)No. 20585 of 2015)
MOHANDAS AND OTHERS … APPELLANT(S)
VERSUS
THE STATE OF MAHARASHTRA AND
OTHERS … RESPONDENT(S)
J U D G M E N T
K.M. JOSEPH, J.
1. Leave granted.
2. Appellants are the petitioners before the High
Court of Bombay. By the impugned Judgment, the Writ
Signature Not Verified
Digitally signed by
ASHA SUNDRIYAL
Petition filed by them stands dismissed.
Date: 2020.01.29
17:35:45 IST
Reason:
1
3. The prayers sought by the appellants are as
follows:
“(A) Quash and set aside the
Reservation No.S-169 in the Final
Development Plan of Gondia (Second
Revised), whereby the land bearing Survey
Nos. 405/1, 406/2, 407/2, 410/2 and 411 of
Mouza-Gondia (Bk.), Tehsil District-
Gondia, belonging to the petitioners is
reserved for Shopping Complex and
Vegetable Market (Annexure “J”).
(B) Hold and declare that the land
bearing Survey Nos. 405/1, 406/2, 407/2,
410/2 and 411 of Mouza-Gondia (Bk.),
Tehsil District-Gondia, are not reserved
for the development of Shopping Complex
and Vegetable market vide Reservation
No.S-169 in the Final Development Plan of
Gondia (Second Revised) and that the
petitioners are free to use and develop
the said land as true lawful and absolute
owners thereof as per the user for the
adjacent land provided under the Final
Development Plan of Gondia (Second
Revised) {Annexure “J”}.”
4. Briefly, their case, before the High Court, is as
follows:
2
Appellants are the owners of different plots of
land totally admeasuring 0.52 hectares. They
purchased the land on 02.01.2006. A Development
Plan was issued under the Maharashtra Regional and
Town Planning Act, 1966 (hereinafter referred to as
‘the Act’, for short). Under the Development Plan
issued, the entire land owned by the appellants was
reserved for construction of shopping complex.
First respondent and the fourth respondent (State
of Maharashtra and the Municipal Council, Gondia),
however, did not take any steps. The Plan was
enforced from 1984. The erstwhile owners of the
property issued a notice dated 09.06.2004 under
Section 127 of the Act calling upon the fourth
respondent to initiate necessary steps for
acquiring the land. The Municipal Council held a
meeting on 15.02.2005. It was alleged that the
fourth respondent decided, by Resolution, not to
acquire the land. Reference is placed on letters of
07.04.2005 and 08.04.2005 intimating that the land
3
was free to be used and developed in accordance
with the user of adjacent lands. Though a draft
Award was made by the Special Land Acquisition
Officer, it was dropped on account of non-
availability of funds. It is the further case of
the appellant that appellant had submitted proposal
for regularization of the layout carved out Plan
over the said land. In the meantime, a revision of
the Development Plan was contemplated and a Draft
Plan was published followed by public notice.
Again, the revised draft Plan showed that the
appellants property was reserved for shopping
complex and vegetable market. Appellants objected
to the same. Appellants were called for hearing by
the fourth respondent. Appellants immediately
thereafter approached the first respondent with
detailed representation. On 15.05.2012, the final
Development Plan of Gondia (Second Revised Scheme)
came into effect. The appellants property is shown
as reserved for shopping complex and vegetable
4
market. It is essentially on these facts and
complaining of inaction on the notice given by
their predecessors in the interest under Section
127 of the Act and contending that the reservation
in the Development Plan has ceased to exist, the
Writ Petition was filed seeking reliefs, as noted
by us. The Writ Petition was opposed. The High
Court, by the impugned Order, dismissed the Writ
Petition.
5. We have heard the learned Senior Counsel for the
appellants Shri Shekhar Naphade. We also heard the
learned Counsel for the first respondent-State of
Maharashtra. There was no representation on behalf of
the fourth respondent-Municipal Council.
6. Shri Naphade, learned Senior Counsel pointed out
that the Development Plan, reserving the property of
the appellants, was made way back in the year 1984. A
notice was given within the meaning of Section 127 of
5
the Act. As there was no appropriate action as
contemplated under Section 127, the inevitable
consequence is that the property of the appellants must
be freed from the reservation it is subjected to in the
Development Plan.
7. Section 127 of the Act must be noticed at once. It
reads as follows:
“127. (1) If any land reserved,
allotted or designated for any purpose
specified in any plan under this Act is
not acquired by agreement within ten years
from the date on which a final Regional
Plan, or final Development Plan comes into
force or if a declaration under sub-
section (2) or (4) of section 126 is not
published in the Official Gazette within
such period, the owner or any person
interested in the land may serve notice,
alongwith the documents showing his title
or interest in the said land, on the
Planning Authority, the Development
Authority or, as the case may be, the
Appropriate Authority to that effect; and
if within twelve months] from the date of
the service of such notice, the land is
not acquired or no steps as aforesaid are
commenced for its acquisition, the
reservation, allotment or designation
shall be deemed to have lapsed, and
6
thereupon, the land shall be deemed to be
released from such reservation, allotment
or designation and shall become available
to the owner for the purpose of
development as otherwise, permissible in
the case of adjacent land under the
relevant plan. (2) On lapsing of
reservation, allocation or designation of
any land under sub-section (1), the
Government shall notify the same, by an
order published in the Official Gazette.]”
8. When the Court pointed out the fact that the High
Court has found that there is a declaration under
Section 126(4) of the Act within ten years from 1984,
i.e., on 03.09.1992, the learned Senior Counsel would
point out that even proceeding on the basis of the
same, it is wholly unjust to keep under captivity, as
it were, the valuable properties of the appellants
seemingly eternally. He further complained that it is
not as if any public purpose is going to be sub-served.
This is a case where the Municipal Council, which is
the Authority, which must make available the funds for
the acquisition of the property, is in dire financial
7
straits and is unable to finance the acquisition. The
Municipal Council does not, in fact, want to acquire
the land. The letters issued and referred to by us is
referred to. The appellants are, thus, held hostage and
are at the receiving end of the most unfair treatment
by paying obeisance to the letter of the law as
contained in Section 127 of the Act. He would further
point out that the reasoning of the High Court about
the effect of the revised Scheme coming into force
under Section 38 of the Act is fallacious and goes
against the view of this Court in Bhavnagar University
v. Palitana Sugar Mill (P) Ltd. and others1. He also
drew our attention to a recent judgment of this Court
in Chhabildas v. State of Maharashtra and others2. He
would, therefore, contend that this is a fit case where
this Court may reach justice to the appellants who
virtually stand deprived of their property within the
meaning of Article 300A of the Constitution of India.
1 (2003) 2 SCC 111
2 (2018) 2 SCC 784
8
9. Per contra, the learned Counsel on behalf of the
first respondent pointed out that the impugned judgment
is premised soundly in law. Appellants, who sought to
invoke the provisions of Section 127 of the Act, based
on notice issued by their predecessor in interest,
have, in the light of the finding that declaration has
been made under Section 126(4) within a period of 10
years (1992) of the Plan, issued in 1984, stand
deprived of any legal right to the consequences under
Section 127 of the Act following non-compliance with
such notice. He does not dispute the fact that there is
considerable delay.
10. The legal principles about the provisions which we
are concerned with, is no longer res integra. The
effect of the Act has been explained in the decisions
reported in Municipal Corporation of Greater Bombay v.
Dr. Hakimwadi Tenants’ Association and others3, Girnar
3 (1998) Supp. SCC 55
9
Traders v. State of Maharashtra and others4 [Girnar 2],
Girnar Traders (3) v. State of Maharashtra5 [Girnar 3]
among other cases. We will advert to them in due
course.
11. Undoubtedly, the scheme of the Act briefly put is
as follows:
The Act contemplates planned development.
Chapter II deals with provisions relating to
regional plans. Regional Plan is defined in Section
2(25) as meaning a plan for development or
redevelopment of a region approved by the State
Government and which has come into operation under
the Act. Region is in turn defined as an area
established to be a region under Section 3 of the
Act. Development Plan falls under Chapter III of
the Act. The Act contemplates that every Planning
Authority is to prepare the development authority.
4 (2007) 7 SCC 555
5 2011 (3) SCC 1
10
Development Plan is defined under Section 2(9) as a
Plan for the development or redevelopment of the
area within jurisdiction of a Planning Authority.
It also includes revision of a development plan and
proposals of the Special Planning Authority for
development of land within its jurisdiction.
Development is defined in Section 2(7) in a very
comprehensive way. Planning Authority is defined in
Section 2(19), and after its substitution by Act 5
of 1992, it means a Local Authority and includes a
Special Planning Authority under Section 40 as also
the Slum Rehabilitation Authority under Section
3(a) of the Maharashtra Slum Areas Improvement,
Clearance and Regional Act, 1971. Spread over the
various Sections of Chapter III, are elaborate
provisions including preparation of draft
Development Plans and finalizing the same,
implementation, revision and variation of the Plan.
Section 43 of the Act speaks about restrictions on
the development of land upon the declaration of
11
intention to prepare a Development Plan. Section 45
speaks about the power to grant or refuse
permission for the Application under Section 44 to
develop the land.
Chapter V deals with Town Planning Schemes. The
word ‘Scheme’ has been defined as including a Plan
relating to Town Planning Scheme.
12. Bearing these provisions in mind, we come to
Chapter VII. Provisions under the said Chapter relate
to land acquisition. Section 125 of the Act provides
that any land acquired, reserved or designated in
Regional Plan or Development Plan or Town Planning
Scheme, inter alia, shall be deemed to be land needed
for public purpose, under the Right to Fair
Compensation and Transparency in Land Acquisition
Rehabilitation and Settlement Act, 2013 (Prior to
29.08.2015, undoubtedly, the words were under the Land
Acquisition Act, 1894, as far as the last part is
12
concerned). Sections 4 to 15 of the 2013 Act is not
made applicable in respect of the said lands. Section
126 of the Act deals with the mode of applying the law
relating to acquisition in regard to a draft Regional
Plan or Development Plan or any other Plan or Town
Planning Scheme. Sub-Section (1) contemplates acquiring
land either by agreement or the basis of granting of
other rights including Transferable Development Right
(TDR). Lastly, the Authority can apply to the State
Government for acquiring such land under the law
relating to land acquisition. Sub-Section (2)
contemplates action on the part of the State Government
on receipt of application under Sub-Section (1). It
contemplates a declaration by the State Government. It
provided, inter alia, that the declaration was to be
deemed to be a declaration under the Land Acquisition
Act, 1894 and after the amendment, as it stands now,
under Section 19 of the Right to Fair Compensation Act,
2013. After substitution by Act 10 of 1994, no
declaration was to be made after expiry of one year
13
from the date of publication of the draft Regional
Plan, Development Plan or any other Plan or Scheme.
Sub-Section (3) of Section 126 of the Act provides for
the Collector to proceed to take order for acquisition
of the land. Sub-Section (4) of Section 126 of the Act,
reads as follows:
“126(4)Notwithstanding anything
contained in the proviso to sub-section
(2) and subsection (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 5[(Amendment) Act,
1993)], the State Government may make a
fresh declaration for acquiring the land
under the Land Acquisition Act, 1894, 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.]14
13. Then, there is Section 127 which deals with lapsing
of reservation, inter alia, which we have already
referred to above.
14. We may also notice Section 49 of the Act. Section
49 of the Act deals with a notice to acquire land in
certain situations. The situations are set out in sub-
Section (1). It includes a situation where any land,
for the development of which permission is refused and
owner falls under any of clauses in (a), (b), (c),
claims that the land have become incapable of
reasonably beneficial use in its existing state or
where permission is granted subject to conditions which
render the land not capable of reasonably beneficial
use. Under sub-Section (4), the State Government to
which the purchase notice under the Section is to be
addressed is to take the decision either accepting or
refusing the purchase notice. Sub-Section (5) deals
with a deemed confirmation of a purchase notice failing
15
response within six months by the Government on the
notice. Sub-Section (7) of Section 49 reads as follows:
“49(7) If within one year from the
date of confirmation of the notice, the
Appropriate Authority fails to make an
application to acquire the land in respect
of which the purchase notice has been
confirmed as required under section 126,
the reservation, designation, allotment,
indication or restriction on development
of the land shall be deemed to have lapsed
; and thereupon, the land shall be deemed
to be released from the reservation,
designation, or, as the case may be,
allotment, indication or restriction and
shall become available to the owner for
the purpose of development otherwise
permissible in the case of adjacent land,
under the relevant plan.”
15. In Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants’ Association and others6, this Court,
inter alia, held as follows:
6 (1998) Supp. SCC 55
16
“11. Section 127 of the Act is a part
of the law for acquisition of lands
required for public purposes, namely, for
implementation of schemes of town
planning. The statutory bar created by
Section 127 providing that reservation of
land under a development scheme shall
lapse if no steps are taken for
acquisition of land within a period of six
months from the date of service of the
purchase notice, is an integral part of
the machinery created by which acquisition
of land takes place. The word “aforesaid”
in the collocation of the words “no steps
as aforesaid are commenced for its
acquisition” obviously refer to the steps
contemplated by Section 126(1). The effect
of a declaration by the State Government
under sub-section (2) thereof, if it is
satisfied that the land is required for
the implementation of a regional plan,
development plan or any other town
planning scheme, followed by the requisite
declaration to that effect in the official
Gazette, in the manner provided by Section
6 of the Land Acquisition Act, is to
freeze the prices of the lands affected.
The Act lays down the principles of
fixation by providing firstly, by the
proviso to Section 126(2) that no such
declaration under sub-section (2) shall be
made after the expiry of three years from
the date of publication of the draft
regional plan, development plan or any
other plan, secondly, by enacting sub-
section (4) of Section 126 that if a
declaration is not made within the period
17
referred to in sub-section (2), the State
Government may make a fresh declaration
but, in that event, the market value of
the land shall be the market value at the
date of the declaration under Section 6
and not the market value at the date of
the notification under Section 4, and
thirdly, by Section 127 that if any land
reserved, allotted or designated for any
purpose in any development plan is not
acquired by agreement within 10 years from
the date on which a final regional plan or
development plan comes into force or if
proceedings for the acquisition of such
land under the Land Acquisition Act are
not commenced within such period, such
land shall be deemed to be released from
such reservation, allotment or designation
and become available to the owner for the
purpose of development on the failure of
the Appropriate Authority to initiate any
steps for its acquisition within a period
of six months from the date of service of
a notice by the owner or any person
interested in the land. It cannot be
doubted that a period of 10 years is long
enough. The Development or the Planning
Authority must take recourse to
acquisition with some amount of
promptitude in order that the compensation
paid to the expropriated owner bears a
just relation to the real value of the
land as otherwise, the compensation paid
for the acquisition would be wholly
illusory. Such fetter on statutory powers
is in the interest of the general public
and the conditions subject to which they
18
can be exercised must be strictly
followed.”
(Emphasis supplied)
16. In Girnar Traders v. State of Maharashtra and
others7, the majority view was that a literal
interpretation of Section 127 of the Act would result
in injustice. The question, which was posed, actually
was what is required to be done by the Authority on
receipt of a notice under Section 127 of the Act from
the owner of land subjected to restrictions by way of a
Development Plan, inter alia. The dissenting Judge,
P.K. Balasubramanium, J., took the view that all that
is required to be done when a notice is issued under
Section 127 of the Act was that the Authority under the
Act was to make an application for acquisition under
the Land Acquisition Act and nothing more. The learned
Judge went on to hold that the Authority cannot set in
motion proceeding under the Land Acquisition Act while
7 (2007) 7 SCC 555
19
acting under Section 126 (1) of the Act. The majority
view, however, was that resorting to the plain meaning
of the words would cause palpable injustice. The Court
took the view as follows:
“54. … If the acquisition is left for
time immemorial in the hands of the
authority concerned by simply making an
application to the State Government for
acquiring such land under the LA Act,
1894, then the authority will simply move
such an application and if no such
notification is issued by the State
Government for one year of the publication
of the draft regional plan under Section
126(2) read with Section 6 of the LA Act,
wait for the notification to be issued by
the State Government by exercising suo
motu power under sub-section (4) of
Section 126; and till then no declaration
could be made under Section 127 as regards
lapsing of reservation and contemplated
declaration of land being released and
available for the landowner for his
utilisation as permitted under Section
127. Section 127 permitted inaction on the
part of the acquisition authorities for a
period of 10 years for dereservation of
the land. Not only that, it gives a
further time for either to acquire the
land or to take steps for acquisition of
the land within a period of six months
from the date of service of notice by the20
landowner for dereservation. The steps
towards commencement of the acquisition in
such a situation would necessarily be the
steps for acquisition and not a step which
may not result into acquisition and merely
for the purpose of seeking time so that
Section 127 does not come into operation.”
(Emphasis supplied)
17. Thus, it was concluded that the steps towards
acquisition would really commence when the State
Government permits acquisition, and as a result
thereof, publishes the declaration under Section 6 of
the Act. The Constitution Bench of this Court in Girnar
3 (supra), has taken note of the view of the majority
judgment in course of its judgment which, inter alia,
dealt with the question as to whether Section 11A of
the Land Acquisition Act applies to proceedings under
the Act under the chapter relating to acquisition. This
Court took the view that Section 11A does not apply.
21
18. In Shrirampur Municipal Council v. Satyabhamabai
Bhimaji Dawkher8, the question which was considered,
before a Bench of three learned Judges was, whether
reservation of lands would lapse if no steps were
commenced within six months under Section 127 of the
Act. This Court found no conflict between Municipal
Corporation of Greater Bombay (supra) and Girnar 2
(supra). This Court held as follows:
“29. The aforesaid judgment lays down
that since more than 20 years had elapsed
since the date of the purchase notice
under Section 49 on the facts of that
case, the land will have to be released
from acquisition. No doubt this Court held
that over 20 years is an inordinately long
period of delay, and therefore, lapsing
has taken place under Section 127 of the
MRTP Act. However, on the facts of that
case, no purchase notice under Section 127
was issued after 10 years had elapsed from
the date of publication of the requisite
plan. This being the case, we read the
judgment as having allowed a lapse to take
place, in view of the inordinately long
delay of over 20 years, by really doing
complete justice on the facts of that case
8 (2013) 5 SCC 62722
under Article 142 of the Constitution of
India.
30. In the present case, 15 years
have passed since the date of publication
of the development plan, and over 10 years
have passed since the date of the purchase
notice issued under Section 49.
Considering the fact that there has been
no stay at any stage by any court, it is
clear that an inordinately long period of
time has elapsed, both since the date of
publication of the development plan, as
well as the date of the purchase notice
served under Section 49. No doubt, the
letter of 26-9-2008 shows that an
application was made within the requisite
time period to acquire the aforesaid land.
However, on the facts of this case, since
after the aforesaid letter nothing has
been done to acquire the appellant’s
property, we are of the view that the
reservation contained in the development
plan as well as acquisition proposal have
lapsed. We make it clear that we hold this
in order to do complete justice between
the parties under Article 142 of the
Constitution of India. However, in all
future cases that may arise under the
provisions of Section 49, the drill of
Section 127 must be followed i.e. that
after 10 years have elapsed from the date
of publication of the relevant plan, a
second purchase notice must be served in
23
accordance with the provisions of Section
127, in order that lapsing can take place
under the aforesaid section. With these
observations, the appeal is disposed of.”
19. Finally, the Court also held as follows:
“45. In our view, the observations
contained in para 133 of Girnar Traders
(3) [Girnar Traders (3) v. State of
Maharashtra, (2011) 3 SCC 1] unequivocally
support the majority judgment in Girnar
Traders (2) [Girnar Traders (2) v. State
of Maharashtra, (2007) 7 SCC 555] .”
20. In Bhavnagar University (supra), the case arose
under the Gujarat Town Planning and Urban Development
Act, 1976. Therein, this Court considering the
provision similar to the provisions of the Act (Section
20 of the Act in the said case corresponded to Section
127 of the Act), took the view that though under
Section 21 of the Gujarat Act, a duty was cast to
revise the Development Plan, the rights of the owners
24
under Section 20(2) of the Act would not be taken away.
We need only refer to paragraph 38 of the judgment,
which reads as follows:
“38. Section 21 does not envisage
that despite the fact that in terms of
sub-section (2) of Section 20, the
designation of land shall lapse, the same,
only because a draft revised plan is made,
would automatically give rise to revival
thereof. Section 20 does not manifest a
legislative intent to curtail or take away
the right acquired by a landowner under
Section 22 of getting the land defreezed.
In the event the submission of the learned
Solicitor-General is accepted the same
would completely render the provisions of
Section 20(2) otiose and redundant.”(Emphasis supplied)
21. In Prafulla C. Dave and others v. Municipal
Commissioner and others9, this Court, again, considered
the provisions of Section 127 of the Act. The facts
therein may be noticed briefly as follows:
9 (2015) 11 SCC 90
25
There was a Development Plan notified on
08.07.1966. The land of the appellant was kept
under reservation for a garden. The land was not
acquired under any of the modes in Section 126 of
the Act prior to the sanction of the revised
Development Plan dated 05.01.1987. The finally
revised Development Plan dated 05.01.1987 was
preceded by a draft revised Plan published in 1982.
No notice under Section 127 of the Act was issued
by the owner or any person interested in the land
prior to the purchase of the land by the appellants
from the original owners in the year 1989. The
appellant served notice dated 05.10.1989. On a
direction by the High Court, the notice under
Section 127 of the Act was found premature by the
Authority as it was issued before completion of ten
years from the date of the revised Development
Plan. The contention of the respondent-Municipal
Commissioner was that a revised Plan under Section
38 tantamounted to a complete Development Plan
26
under Sections 21 to 30 of the Act. The period of
ten years under Section 127 of the Act would
necessarily run from the date of coming into force
of such revised Plan. The contention of the
respondent also was that under the Gujarat Act,
certain provisions found in the Act are absent and
Bhavnagar University (supra) was distinguished,
inter alia. This Court proceeded to hold in
Prafulla C. Dave (supra), inter alia, as follows:
“21. … It is, therefore, clear that
the lapsing of the reservation, allotment
or designation under Section 127 can
happen only on the happening of the
contingencies mentioned in the said
section. If the landowner or the person
interested himself remains inactive, the
provisions of the Act dealing with the
preparation of revised plan under Section
38 will have full play. Action on the part
of the landowner or the person interested
as required under Section 127 must be
anterior in point of time to the
preparation of the revised plan. Delayed
action on the part of the landowner, that
is, after the revised plan has been
finalised and published will not
invalidate the reservation, allotment or27
designation that may have been made or
continued in the revised plan. …”(Emphasis supplied)
22. In a recent judgment, considering a case under
Section 49 of the Act, a Bench of two learned Judges in
Chhabildas (supra) has considered the interplay of
Sections 49, 126 and 127 of the Act. The Court took the
view as follows:
“14. A purchase notice may be served
under Section 49, after the expiry of one
year from the date of publication of the
plan in question, in which case Section
126(2) of the Act will not apply. Under
Section 126(4), the State Government may
make a declaration under Section 6 subject
to the modification that the market value
of the land shall be the market value at
the date of the declaration in the
Official Gazette made for acquiring the
land. But this does not mean that the
State Government has carte blanche to do
as it pleases. Ordinarily, the State
Government is bound to act under Section28
126(4) within a reasonable time from the
appropriate authority making an
application to acquire the land. This
should ordinarily be within a period of
one year from the date such an application
is made. However, if such declaration is
not made within the aforesaid period, it
will be open for the aggrieved person to
move the Court to direct the State
Government to make the requisite
declaration immediately.
15. But the matter does not end here.
Thereafter, Section 127 kicks in. If a
declaration under Section 6 of the Land
Acquisition Act is not made within a
period of 10 years from the date on which
a plan comes into force under sub-section
(4) of Section 126, the owner or any
person interested in the land may serve a
purchase notice on the authorities, and if
within one year from the date of service
of such notice, the land is not acquired
or no steps are commenced for its
acquisition, the reservation, allotment or
designation shall be deemed to have
lapsed.”
29
23. This Court, however, noticed the judgment in
Hasmukhrai V. Mehta v. State of Maharashtra and others10
and held as follows:
“29. The aforesaid judgment lays down
that since more than 20 years had elapsed
since the date of the purchase notice
under Section 49 on the facts of that
case, the land will have to be released
from acquisition. No doubt this Court held
that over 20 years is an inordinately long
period of delay, and therefore, lapsing
has taken place under Section 127 of the
MRTP Act. However, on the facts of that
case, no purchase notice under Section 127
was issued after 10 years had elapsed from
the date of publication of the requisite
plan. This being the case, we read the
judgment as having allowed a lapse to take
place, in view of the inordinately long
delay of over 20 years, by really doing
complete justice on the facts of that case
under Article 142 of the Constitution of
India.
30. In the present case, 15 years have
passed since the date of publication of
the development plan, and over 10 years
have passed since the date of the purchase
notice issued under Section 49.
10 (2015) 3 SCC 154
30
Considering the fact that there has been
no stay at any stage by any court, it is
clear that an inordinately long period of
time has elapsed, both since the date of
publication of the development plan, as
well as the date of the purchase notice
served under Section 49. No doubt, the
letter of 26-9-2008 shows that an
application was made within the requisite
time period to acquire the aforesaid land.
However, on the facts of this case, since
after the aforesaid letter nothing has
been done to acquire the appellant’s
property, we are of the view that the
reservation contained in the development
plan as well as acquisition proposal have
lapsed. We make it clear that we hold this
in order to do complete justice between
the parties under Article 142 of the
Constitution of India. However, in all
future cases that may arise under the
provisions of Section 49, the drill of
Section 127 must be followed i.e. that
after 10 years have elapsed from the date
of publication of the relevant plan, a
second purchase notice must be served in
accordance with the provisions of Section
127, in order that lapsing can take place
under the aforesaid section. With these
observations, the appeal is disposed of.”
31
24. Shri Naphade, learned Senior Counsel, inspired by
the views expressed by this Court in Hasmukhrai V.
Mehta (supra) Chhabildas (supra), would submit that
this is a case where the Development Plan was finalized
under Section 31 of the Act in the year 1984, more than
35 years. Neither is there any sign of land of the
appellants being acquired nor are the appellants being
extricated from the rigor of the reservation made of
their lands. Under the Development Plan, the land of
the appellants is reserved for use as a shopping
complex and a vegetable market.
25. The right would accrue to the owner under Section
127 of the Act to serve notice thereunder only if a
declaration is not published within ten years of the
Development Plan under Section 126(4) of the Act, inter
alia. The High Court has, undoubtedly, noticed that the
final Development Plan came into force on 24.08.1984.
It further noticed that there is a declaration or
Notification under Section 126(4) of the Act on
32
03.09.1992. This means, within ten years from
24.08.1984, there is action, as contemplated under
Section 126(4) of the Act. Under Section 127 of the
Act, therefore, any notice which was given may not hold
good going by the letter of the law.
26. In this case, it is clear that the appellants are
governed by the Act. There is no dispute that invoking
Section 38 of the Act that a revised final Development
Plan has come into effect from 15.05.2012. It is
undoubtedly true that the reservation under the
original Development Plan dated 24.08.1984 would cease
to impact the appellants if the notice under Section
127 of the Act was issued on the passage of ten years
from 24.08.1984 and, if action under Section 127 of the
Act was not taken. It is true that notice dated
09.06.2004 was issued by the predecessor in title of
the appellants. This is not a case where there was
inaction on the part of the previous owners of the
33
property upon the expiry of ten years from the date of
the final Development Plan in 1984. The problem for
appellants, however, is the action on the part of the
respondent issuing declaration under Section 126(4) of
the Act on 03.09.1992. Lapsing of reservation
contemplated under Section 127 of the Act will occur
only if the conditions mentioned therein are fulfilled.
The indispensable conditions is that after the
reservation of the land, inter alia, under any Plan,
for a period of ten years, the land is not acquired by
agreement within that period or proceedings for
acquisition under the Act, i.e., declaration under
Section 126(4) of the Act, inter alia, is not published
within the said period. If either of the two conditions
exist, a notice is to be issued setting in motion the
process for lapsing reservation. If, before issuance of
notice, action is already taken by issuance of
notification/declaration by the respondent within ten
years of the final Development Plan, it will render the
notice ineffective in law. The result is that the High
34
Court was right in finding that the appellant was not
entitled to the relief based on lapsing of reservation
under Section 127 of the Act. This is a case,
therefore, where the Development Plan also stood
revised under Section 38 of the Act, bringing in
consequences, as noticed by this Court in Prafulla C.
Dave (supra).
27. Therefore, this is a case where the reservation
under the Plan dated 24.08.1984, which was the final
Development Plan, had not lapsed and it was finally
revised under Section 38 of the Act. It is not in
dispute that the property of the appellants had been
reserved originally for the purpose of shopping
complex, and under the revised Development of 2012, for
shopping complex and vegetable market.
28. The contention of the appellants is, however, that
the draft revised Plan was prepared on 29.11.2007 which
is after 20 years of the publication of the Development
Plan and it was finalized in the year 2012.
35
29. Proceeding on the basis of the contention of the
appellant that since the revised Development Plan was
issued more than 20 years from the issuance of the
initial final Development Plan on 24.08.1984, and
therefore, revised Plan issued on 24.09.2007, is not to
have effect even then the original Development Plan
issued on 24.08.1984 would continue to hold good. There
is no dispute that reservation under both the Plans in
respect of the appellants properties are the same. In
such circumstances, there can be no merit in the
contention.
30. The contention is not seen taken before the Court.
Section 38 of the Act reads as follows:
“38. Revision of Development plan:-
At least once in 20 [twenty years] from
the date on which a Development plan has
come into operation, and where a
Development plan is sanctioned in parts,
then at least once in 4[twenty years] from
the date on which the last part has come
into operation, a Planning Authority may 3
[and shall at any time when so directed by
36
the State Government], revise the
Development plan 4 [either wholly, or the
parts separately] after carrying out, if
necessary, a fresh survey and preparing an
existing land-use map of the area within
its jurisdiction, and the provisions of
sections 5 [* * *] 22, 23, 24, 25, 26, 27,
28, 29, 30 and 31 shall, so far as they
can be made applicable, apply in respect
of such revision of the Development plan.”
31. What is contemplated under the said provision is
that the Planning Authority may at least once in 20
years from the date on which a Development Plan has
come into operation, inter alia, (the period of 20
years been calculated from the date on which, it came
into operation) revise the Development Plan. The
provisions of Sections 22, 23, 24, 25, 26, 27, 28, 30
and 31 were to apply in this regard. The final
Development Plan in this case came into force on
24.08.1984. The draft Revised Plan was issued on
24.09.2007 and the final revised Development Plan was
issued with effect from 15.05.2012. The further
provision in Section 38 of the Act is that if the
37
Government directs the revision of the Plan, the
Planning Authority shall revise the Plan. It may be at
any time. In other words, the scheme would appear to be
that even before the completion of 20 years, it is open
to the Government to direct the Planning Authority to
undertake the revision of an existing Development Plan.
In such a case, the word used is shall and there is no
discretion and the Planning Authority is to revise the
Plan. State Government can issue the direction at any
time without waiting for the period of 20 years. AS far
as the Planning Authority undertaking revision on its
own, it is discretionary. As regards the time limit
being breached, in the facts of this case, we are
unable to agree. It is not stipulated in Section 38 of
the Act that the revision must be undertaken and
finalized immediately before the expiry of 20 years
from the date of the original final Development Plan. A
period of 20 years is to run out from original
Development Plan in a case where the Planning Authority
wishes to exercise power of revision of the Plan. That
38
is not the same thing as saying that the revised Plan
is to be brought into force before the expiry of 20
years. In this case, it is also not clear whether the
Planning Authority undertook the revision following the
direction of the Government.
32. The only aspect which remains is whether this is a
case which calls for the exercise of powers under
Article 142 of the Constitution of India. The sheet
anchor of the appellants case appears to be the
decision of this Court in Chhabildas (supra), which we
have already referred to above. In this case, the
declaration has been issued under Section 126(4) of the
Act on 03.09.1992. The effect of the declaration under
Section 126(4) is that the value of the land was to be
determined with reference to the date of the
declaration. If declaration is made under Section
126(2) of the Act, the valuation is pushed back to the
date of the draft Development Plan. What is actually
contemplated would appear to be that after the
39
declaration under Section 126(4), the matter must be
followed up with reasonable dispatch. In other words,
under the law relating to land acquisition, further
steps will be taken culminating in an Award. In this
case, on the other hand it is not in dispute that no
steps were taken for acquiring the land for more than
two decades. It is in the meantime that the revised
Development Plan has come into being on 15.05.2012.
Since no declaration has been made under Section 126(2)
of the Act under the revised Plan and the period has
run out as contemplated in the proviso to Section
126(2), the only way out for the respondent would be to
bring out a declaration under Section 126(4) of the
Act. In such an eventuality, the value of the
properties would have to be determined with reference
to the date of such declaration under Section 126(4) of
the Act. Therefore, if the property of the appellants
is to be acquired, the appellants would have to be
given the value of the property as on the date on which
40
any such declaration is made under Section 126(4) of
the Act within ten years from 15.05.2012.
33. In Hasmukhrai V. Mehta (supra), the case was
decided under the Act. In the impugned order, the High
Court had dismissed the Writ Petition of the appellant,
inter alia, finding that such Plan was finalized in
March, 2003 and the period of ten years had not elapsed
and no benefit could be given. The Court took note of
the fact that in T. Vijayalakshmi and others v. Town
Planning Member and another11, this Court had declared
that the right of a person to construct residential
houses in a residential area is a valuable right and
also considered that the appellant had been granted
permission and commencement certificate on 03.04.1990
under the Development Plan under which the property of
the appellant was included under the residential zone
and the Plan was also sanctioned. It is thereafter, on
14.01.1999, the appellants were informed about the
11 (2006) 8 SCC 502
41
fresh development scheme including the appellants land
as reserved for agricultural produce market yard. In
these circumstances, inter alia, the Court, taking note
of the fact that since no steps appear to have been
taken till date for the last more than 20 years, either
for acquiring land or purchasing land under the Act,
the lands were to stand released under Section 127 of
the Act.
34. In the judgment in Chhabildas (supra), this Court
referred to the aforesaid judgment and holds that the
said judgment lays down that since more than 20 years
have elapsed since the date of purchase notice under
Section 49 of the Act, on the facts of that case, the
lands will have to be released from acquisition.
Thereafter, this Court proceeds to notice that in the
said case [Hasmukhrai V. Mehta (supra)], no purchase
notice under Section 127 of the Act was issued after
ten years had elapsed. Thereafter, this Court proceeded
to hold that this being the case the judgment was
42
understood as one which was passed under Article 142 of
the Constitution of India in view of the inordinate
delay of over twenty years. Thereafter, Court took note
of the facts of the case before it and found that
fifteen years had passed since the publication of the
Development Plan and over ten years passed since date
of purchase notice under Section 49 of the Act. The
Court proceeded to invoke Article 142 of the
Constitution of India and found that the reservation
and the acquisition proposals stood lapsed. However, it
was made clear that in future cases that may arise
under Section 49 of the Act, the procedure under
Section 127 of the Act must be followed which means
that after ten years had lapsed, a second purchase
notice had to be served under Section 127 of the Act in
order that lapsing could take place under the said
Section.
35. Now, it is time to consider the impact of the
letters dated 6/7.04.2005 issued by the Municipal
43
Council. Therein, it is stated by the Chief Executive
Officer that in the Resolution dated 15.02.2005, the
land reserved no. 137 for shopping complex in Khasra
Nos. 406, 407, 410 and 411, total land measuring 4928
square meters in village Gondia shall not be purchased.
Resolution dated 15.02.2005 also appears to suggest
that the reservation under Section 127 of the Act is
released. The appellants would appear to contend that
this should by itself cannot decide the matter. As to
whether there is a lapsing of reservation under Section
127 of the Act, would be a matter to be decided in
terms of the said Statute. Also, after the Resolution
in the revised Plan, the reservation is reiterated.
36. The only question is whether it is to be ignored in
deciding whether we should invoke Article 142 of the
Constitution of India. On 24.08.1984, the final
Development Plan is published. On 03.09.1992, the
declaration under Section 126(4) of the Act was
published. After expiry of ten years from 24.08.1984,
notice was given by the previous owners on 09.06.2004.
44
Thereafter, draft revised draft Plan publication was
made on 29.11.2007. Still, thereafter, on 15.05.2012, a
final revised Development Plan was published. Although,
under the original final Development Plan dated
24.08.1984, the property of the appellants was reserved
for shopping complex, and under the revised final
Development Plan dated 15.05.2012, the appellants lands
have been subjected to the reservation that it is meant
for use as shopping complex and vegetable market, apart
from issuing the declaration, under Section 126(4) of
the Act in the year 1992, there is no declaration
issued under the revised Plan dated 15.05.2015. While,
it is true that the original final Development Plan
came into force on 24.08.1984 and the revised
Development Plan came into force in the year 2012, one
crucial fact cannot be overlooked. Admittedly, the
appellants purchased lands from the erstwhile owners
only on 02.01.2006. Therefore, on the facts,
particularly, having regard to the fact that they have
purchased the property apparently knowing that the
45
property was subjected to reservation, and as also we
have found that their case, based on the notice of
previous owners, would not hold good in law and as the
subsequent revision of the Plan has come into force
with effect from 15.05.2012, we do not find that this
is a case where we should exercise our powers under
Article 142 of the Constitution. Appellants cannot be
compared with the appellant in Hasmukhrai V. Mehta
(supra) as the appellant therein was a person who was
favoured with a permission to develop his land on the
basis that the land was meant for residential purpose
and it was he who went to court and the lapse of twenty
years was in the context found to have a deep impact.
37. The appellants must wait for a period of ten years
under Section 127 of the Act from 15.05.2012 and then
can issue notice contemplated under the Act. That is,
within a period of little over two years from now,
appellants would have a cause of action to give notice
under Section 127 of the Act unless action is already
taken in the meantime. No doubt, we would expect that
46
the respondents would be alive to the object of the
Statute and also the rights of the owners and will not
act mechanically and unfairly in the matter in the
future. As far as invoking Section 49 of the Act, we do
not express any view. Leaving open all the remedies
available to the appellants, the appeal shall stand
dismissed.
38. There shall be no order as to costs.
…………………..J.
(MOHAN M. SHANTANAGOUDAR)
…………………..J.
(K.M. JOSEPH)
NEW DELHI,
JANUARY 29, 2020.
47
