Nitin B. Suryawanshi, J
1. A Division Bench, which was considering writ petitions filed under Article 226 of the Constitution of India seeking a declaration that the reservation of the land owned by the petitioners in the Development Plan of the Municipal Council has lapsed and the said land is released from reservation and will be available to the petitioners for development, has referred following question for consideration of Full Bench :
“Whether the High Court can lawfully declare lands reserved for a public purpose, under the Maharashtra Regional and Town Planning Act, 1966 for an inordinate long period of time, free from reservation in absence of a valid notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966?”
2. Before we proceed to decide the said question, it would be apt to consider relevant provisions of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter for brevity, “the Act”).
“126. (1)Where after the publication of a draft Regional plan, a Development or any other plan or town planning scheme, any land is required or reserved for any of the public purposes specified in any plan or scheme under this Act at any time, the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority may, except as otherwise provided in section 113A acquire the land,—
(a) by agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner or the lessee, subject, however, to the lessee paying the lessor or depositing with the Planning Authority, Development Authority or Appropriate Authority, as the case may be, for payment to the lessor, an amount equivalent to the value of the lessor’s interest to be determined by any of the said Authorities concerned on the basis of the principles laid down in the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Floor Space Index (FSI) or Transferable Development Rights (TDR) against the area of land surrendered free of cost and free from all encumbrances, and also further additional Floor Space Index or Transferable Development Rights against the development or construction of the amenity on the surrendered land at his cost, as the Final Development Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for acquiring such land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, and the land together with the amenity, if any so developed or constructed so acquired by agreement or by grant of Floor Space Index or additional Floor Space Index or Transferable Development Rights under this sections or under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, as the case may be, shall vest absolutely free from all encumbrances in the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government is satisfied that the land specified in the application is needed for the public purpose therein specified, or if the State Government except in cases falling under section 49 [and except as provided in section 113A itself is of opinion that any land included in any such plan is needed for any public purpose, it may make a declaration to that effect in the Official Gazette, in the manner provided in section 19 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in respect of the said land. The declaration so published shall, notwithstanding anything contained in the said Act, be deemed to be a declaration duly made under the said section:
Provided that, subject to the provisions of sub-section (4), no such declaration shall be made after the expiry of one year from the date of publication of the draft Regional Plan, Development Plan or any other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 19, the Collector shall proceed to take order for the acquisition of the land under the said Act; and the provisions of that Act shall apply to the acquisition of the said land with the modification that the market value of the land shall be,—
(I) where the land is to be acquired for the purposes of a new town, the market value prevailing on the date of publication of the notification constituting or declaring the Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special Planning Authority,the market value prevailing on the date of publication of the notification of the area as undeveloped area; and
(iii) in any other case, the market value on the date of publication of the interim development plan, the draft development plan or the plan for the area or areas for comprehensive development, whichever is earlier, or as the case may be, the date of publication of the draft Town Planning Scheme:
Provided that, nothing in this sub-section shall affect the date for the purpose of determining the market value of land in respect of which proceedings for acquisition commenced before the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972:
Provided further that, for the purpose of clause (ii) of this sub-section, the market value in respect of land included in any undeveloped area notified under sub-section (1) of section40 prior to the commencement of the Maharashtra Regional and Town Planning (Second Amendment) Act, 1972, shall be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to sub-section (2) and sub-section (3), if a declaration, is not made, within the period referred to in sub-section(2) or having been made, the aforesaid period expired on the commencement of the Maharashtra Regional and Town Planning (Amendment) Act, 1993, the State Government may make a fresh declaration for acquiring the land under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, in the manner provided by sub-sections (2) and (3) of this section, subject to the modification that the market value of the land shall be the market value at the date of declaration in the Official Gazette, made for acquiring the land afresh.
127. Lapsing of reservations
(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, along with the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to that effect; and if within twelve months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed, and thereupon, the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible in the case of adjacent land under the relevant plan.
(2) On lapsing of reservation, allocation or designation of any land under sub-section(1), the Government shall notify the same, by an order published in the Official Gazette.
3. On plain reading of section 127 of the Act, it is clear that for lapsing of reservation, service of notice under the section by the land owner to planning authority, development authority or as the case may be, an appropriate authority, is a prerequisite condition. Notice is required to be accompanied by documents showing title or interest in the land under reservation. It is further provided that if within 24 months from the date of 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 been lapsed and thereupon the land shall be deemed to have been released from the reservation, allotment or designation and becomes available to the owner for the purpose of development or otherwise. Thus, issuance and service of notice, commonly known as “purchase notice” under section 127 of the said Act on the planning / development authority is essential prerequisite for lapsing of reservation, as provided under section 127 of the said Act.
4. The Supreme Court, in “Girnar Traders V/s State of Maharashtra and Others” (2007) 7 SCC 555, has observed thus-
“54. When we conjointly read Sections 126 and 127 of the MRTP Act, it is apparent that the legislative intent is to expeditiously acquire the land reserved under the Town Planning Scheme and, therefore, various periods have been prescribed for acquisition of the owner's property. The intent and purpose of the provisions of Sections 126 and 127 has been well explained in Municipal Corpn. of Greater Bombay v. Dr. Hakimwadi Tenants Assn. 1988 Supp SCC
55. 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 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.
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56. The underlying principle envisaged in Section 127 of the MRTP Act is either to utilise the land for the purpose it is reserved in the plan in a given time or let the owner utilise the land for the purpose it is permissible under the town planning scheme. The step taken under the section within the time stipulated should be towards acquisition of land. It is a step of acquisition of land and not step for acquisition of land. It is trite that failure of authorities to take steps which result in actual commencement of acquisition of land cannot be permitted to defeat the purpose .and object of the scheme of acquisition under the MRTP Act by merely moving an application requesting the Government to acquire the land, which Government may or may not accept. Any step which may or may not culminate in the step for acquisition cannot be said to be a step towards acquisition."
5. In “Hasmukhrai V. Mehta V/s State of Maharashtra” (2015) 3 SCC 154, considering the fact that neither any step was taken by the authorities concerned for acquisition of land nor the land of the appellant was purchased under the purchase notice, nor was he allowed to utilize the land for last more than 20 years, the Supreme Court released the land, holding that the appellant cannot be deprived from utilization of property for indefinite period. Thus, in this case it is clear that purchase notice was served by the appellant on the acquiring body.
6. In “Prafulla C. Dave V/s Municipal Commissioner” (2015) 11 SCC 90, the Supreme Court was considering a case, whether purchase notice issued by the appellants under section 127 of the said Act, was premature, as it was issued before completion of period of 10 years from the date of revised development plan. The Supreme Court, considering the provisions of section 21 i.e. final development plan and in view of the facts of the case that notice under section 127 of the Act was issued by the appellants only two years after final revision of plan under section 38 of the Act had come into operation, held that the notice issued by the appellants therein, under section 127 of the said Act was premature, by observing thus -
“19. ……. What would happen in a situation where the land owner or the person interested remains silent and in the meantime a revised plan under Section 38 comes into effect is not very difficult to fathom. Obviously, the period of ten years under Section 127 has to get a fresh lease of life of another ten years. To deny such a result would amount to putting a halt on the operation of Section 38 and rendering the entire of the provisions with regard to preparation and publication of the revised plan otiose and nugatory. To hold that the inactivity on the part of the authority i. e. failure to acquire the land for ten years would automatically have the effect of the reservation etc. lapsing would be contrary to the clearly evident legislative intent. In this regard it cannot be overlooked that under Section 38 a revised plan is to be prepared on the expiry of a period of 20 years from date of coming into force of the approved plan under Section 31 whereas Section 127 contemplates a period of 10 years with effect from the same date for the consequences provided for therein to take effect. The statute, therefore, contemplates the continuance of a reservation made for a public purpose in a final development plan beyond a period of ten years. Such continuance would get interdicted only upon the happening of the events contemplated by Section 127 i.e. giving/service of notice by the land owner to the authority to acquire the land and the failure of the authority to so act. 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 land owner 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 land owner 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 land owner, that is, after the revised plan has been finalized and published will not invalidate the reservation, allotment or designation that may have been made or continued in the revised plan. This, according to us, would be the correct position in law which has, in fact, been clarified in Municipal Corporation of Greater Bombay_ vs. Dr. Hakimwadi Tenants' Association & Ors. 1988 Supp. SCC 55 in the following terms:
"If there is no such notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development plan of having lapsed. It a fortiori follows that in the absence of a valid notice under Section 127, there is no question of the land becoming available to the owner for the purpose of development or otherwise."
7. In another decision in the case of “Chhabildas V/s The State of Maharashtra and Others” (2018) 2 SCC 784, the Supreme Court, relying on “Girnar Traders” (supra), observed thus :
“23. It is, thus, clear that the scheme of Sections 126 and 127 would leave nobody in doubt, for the reason that if a period of 10 years has elapsed from the date of publication of the plan in question, and no steps for acquiring the land have been taken, then once a purchase notice is served under Section 127, steps to acquire the land must follow within a period of one year from the date of service of such notice, or else the land acquisition proceedings would lapse.
24. On a conspectus of the above authorities, the following position in law emerges:
(1) In all Section 49 cases, where a purchase notice has been served and is confirmed within the period specified, the appropriate authority must make an application to acquire the land within one year from the date of confirmation of the notice. If it does not do so, the reservation, designation, etc. shall be deemed to have lapsed.
(2) If within the period specified in Section 49(7), the appropriate authority makes the requisite application, then the State Government may acquire the land by making a declaration under Section 6 of the Land Acquisition Act as set out under Section 126(4), wherein the market value shall be the market value of the land as on the date of the Section 6 declaration. Ordinarily, such declaration must be made within 1 year of the date of receipt of the requisite application. In case this not done, it will be open to the aggrieved person to move the Court to direct the State Government to make the requisite declaration immediately.
(3) If 10 years have passed from the date of publication of the plan in question, and a purchase notice has been served under Section 127,and no steps have been taken within a period of one year from the date of service of such notice, all proceedings shall be deemed to have lapsed. Thus, even in cases covered by Section 49, the drill of Section 126(4) and Section 127 will have to be followed, subsequent to the appropriate authority making an application to acquire the land within the period specified in Section 49(7).”
8. In that case, the Supreme Court, by exercising powers under Article 142 of the Constitution of India, declared that the land was released from reservation, by making following observations:
“31. 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 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”
9. In “Chhabildas” and “Prafulla Dave” (supra), in view of the facts of those cases, the Supreme Court has exercised powers under Article 142 of the Constitution of India to declare lapsing of reservation.
10. A question - “Whether date of revised development plan under Section
38 of the Maharashtra Regional and Town Planning Act, 1966 is the date relevant for calculation of period of 10 years for serving notice under Section 127 thereof or then it has to be date of final development plan as notified under Section 31 (6) thereof?”, was referred to the Full Bench of this Court at Nagpur.
The Full Bench held thus:
“In view of the subsequent development i.e. laying down of the law after interpreting the provisions of Sections 127, 21, 22, 31 and 38 by two Judgments of the Hon’ble Apex Court in the cases of Prafulla C. Dave & Others Vs. Municipal Commissioner and Others (2015) 11 SCC 90 and Godrej and Boyce Manufacturing Company Limited Vs. State of Maharashtra 2015 (11) SCC 554, we find that the position stands crystallized and it will not be necessary to answer the question which is referred by the learned Judges of the Division Bench.
Needless to state that each case will have to be decided on the facts of each case, in the light of pronouncement of the law by the Apex Court in the cases of Prafulla Dave and Godrej and Boyce Manufacturing Company Limited (supra)”
11. This decision of Full Bench was not brought to the notice of Division Bench, which has referred the question for our decision.
12. In the light of the aforesaid pronouncements, it is clear that reservation of land does not lapse automatically and a valid notice under section 127 of the Act is a precondition to claim that it has lapsed.
13. Validity of the notice will have to be determined considering the facts of each case. It would depend upon whether notice under section 127 of the said Act is issued within stipulated time after revision of development plan.
14. For the aforesaid reasons, we answer the question in following terms :
In absence of valid notice under section 127 of the Maharashtra Regional and Town Planning Act, 1966, High Court cannot lawfully declare lands reserved for public purpose under Maharashtra Regional and Town Planning Act, 1966 for inordinate long period of time, free from reservation.
15. We however make it clear that validity of such a notice will have to be determined on the facts of each case on the touchstone of principles laid down in “Prafulla Dave” and
