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Mohandas . vs The State Of Maharashtra And Ors. … on 29 January, 2020

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 the

20
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 627

22
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 or

27
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 Section

28
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

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