REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1086 OF 2015
(ARISING OUT OF SLP(C)NO.19426 OF 2012)
GODREJ & BOYCE MANUFACTURING.CO.LTD. .........APPELLANT
Vs.
STATE OF MAHARASHTRA & ORS. ......RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
The appellant whose land bearing CTS Nos. 31(pt), 7 (pt), 70 to 78, 80(pt)
and 81, measuring 2188 sq. mtrs. at Vikhroli were reserved in the
Development Plan in the year 1991 for acquisition by the Ministry of
Railways for laying additional railway tracks between "Thane and Kurla",
has questioned the correctness of the notification dated 5.8.2008 issued
by the Urban Development Department of the respondent No. 1-State
Government under Section 37(1) of the Maharashtra Regional Town Planning
Act (for short "the MRTP Act") proposing the modification in the
Development Plan deleting the reservation of land in question from Railway
reservation and adding reservation for Development Plan Road, before the
High Court of Bombay questioning the power of the State Government
regarding the proposed modification in the Development Plan after the
period of 10 years specified under Section 127 of the MRTP Act, was expired
and the State Government has failed to take steps for acquisition of the
land involved in these proceedings reserved for the purpose of laying
additional railway tracks between "Thane and Kurla", which was not
interfered with by the High Court by recording its reasons in the impugned
order dated 12.12.2011, passed in the Writ Petition No. 2274 of 2011, is
under challenge in these proceedings, urging various legal contentions.
The brief facts of the case are as under:-
In the year 1991, appellant's land in question were reserved under the
Sanctioned Development Plan of Greater Mumbai for acquisition of respondent
No.2 herein - Union of India, Ministry of Railways for laying down
additional Railway tracks between "Thane and Kurla".
No steps were taken by the concerned authorities despite passing of 10
years period as contemplated under Section 127 of the MRTP Act to acquire
the reserved land of the appellant. The appellant has issued the purchase
notice under the said Section on 04.09.2002 to the respondent No.2 -
Ministry of Railways stating that if, the Ministry of Railways is in need
of the land in question, the same may be acquired by them, and if the same
is not required, a clarification to that effect may be issued.
After issuance of the said notice, the period of 6 months as prescribed
under Section 127 of the MRTP Act, was expired on 3.3.2003, thus, the
reservation of the land in question was deemed to be released.
Having got no reply from respondent No. 2, the appellant again wrote a
letter dated 2.10.2004 to respondent No.1 for de-reservation of the land if
the same is not required by them.
On 1.11.2004, the respondent No. 2 - Ministry of Railways informed the
Urban Development Department of State that there was no proposal for
acquisition of reserved land for railway development works in the Railways
in the near future.
The appellant, on 5.1.2005, wrote to the Urban Development Department of
the State Government requesting for suitable steps in view of clarification
letter dated 1.11.2004 issued by respondent No. 2 and requested it for
expediting the process of deleting the reservation of the land in question.
The Urban Development Department of the State Government has issued the
notification on 24.5.2006 under Section 37(1) of the MRTP Act, proposing
the modification to the Development Plan by deleting "Railway reservation"
and adding "Reservation for DP Road". The land which was reserved earlier
in the Development Plan for railway line, the period of 10 years and 6
months after issuing notice was lapsed, now proposed to be reserved for
Development Plan Road. The same was followed by another notification issued
by the State Government under Section 37(1) of the MRTP Act dated 5.8.2008
for modification of the land deleting from the Railway reservation and
reserving the same for Development Plan Road.
Being aggrieved by the said notification dated 5.8.2008 proposing the
modification of reservation of the land in question from the Railway line
to Development Plan Road, the appellant approached the High Court by filing
Writ Petition No. 2274 of 2011 challenging the correctness of the said
notification by placing strong reliance upon Section 127 of the MRTP Act,
contending that the proposed modification by the Urban Development
Department is impermissible in law as the State Government has no power to
do so.
The High Court vide its order dated 12.12.2011 dismissed the writ petition
by holding that the action of the State Government is only proposed
modification and therefore, the writ petition cannot be entertained at this
stage. However, the High Court has given liberty to the appellant to raise
objections before the Urban Development Department of the State Government
regarding the proposed modification. Further, it is observed by the High
Court in the impugned order that the impugned notification was issued in
the month of August, 2008, whereas the appellant has filed the petition in
the month of August, 2009. In the absence of explanation by the appellant
for filing a petition about one year after the issuance of impugned
notification, therefore, the writ petition was also rejected on this
ground. Hence, the civil appeal is filed by the appellant urging various
grounds.
Mr. Shyam Divan, the learned senior counsel appearing on behalf of the
appellant placed strong reliance upon the provision of Section 127 of the
MRTP Act, in support of his legal contention that the land of the appellant
involved in this case was reserved for the Development Plan by the State
Government for acquisition by the Ministry of Railways for laying
additional Railway tracks between "Thane and Kurla", which period of 10
years was expired long back and therefore, the proposed action to de-
reserve and modify the same for the abovesaid purpose is not permissible in
law.
It was further contended by the learned senior counsel that in view of the
law laid down in Prakash R. Gupta v. Lonavala Municipal Council and Ors.[1]
the land should have been acquired within 10 years from the date of
sanctioned development plan. No proceeding for acquisition of the reserved
land was commenced by the State Government and Railway department within
the said period under Section 127 of the MRTP Act. The land involved in
these proceedings having not been acquired by the respondents within
stipulated time of 10 years, the reservation of the land for the purpose of
railway under the provision of Section 127 of the MRTP Act has lapsed long
back and hence the same stands released from reservation in favour of the
appellant.
The learned senior counsel also contended that the High Court should have
seen that once the right of the appellant under Section 127 of the MRTP
Act, is accrued in favour of the appellant, any proposed modification of
the plan in exercise of power by the State Government under Section 37 of
the MRTP Act, should not be allowed to render the right of the appellant
under Section 127 of the MRTP Act as otiose.
On the contrary, Mr. R.P. Bhatt, the learned senior counsel on behalf of
the respondents sought to justify the impugned notification contending that
the Stat Government is empowered to modify the Development Plan by deleting
the earlier purpose for which the land was reserved, and can be modified
for Development Plan Road. The said action is only proposed one and
therefore, the appellant cannot have any grievance at this stage and can
raise objections to the impugned notification before the State Government,
the same will be examined it and take appropriate decision in the matter.
Therefore, he submits that the impugned order is not vitiated either on
account of erroneous reasoning or error in law and the same need not be
interfered with by this Court in exercise of its appellate jurisdiction in
this appeal.
Having heard the learned senior counsel on behalf of both the parties and
with reference to the abovesaid rival factual and legal contentions, we
have carefully examined the same keeping in view the undisputed facts
involved in this case. It is an undisputed fact that the respondent No. 1
has reserved the land in question for the Development Plan under the
provisions of Section 127 of the MRTP Act for the acquisition of the land
in favour of Ministry of Railways for laying additional railway track
between "Thane and Kurla". It would be apposite to extract Section 127 of
the MRTP Act for better appreciation of the claim of the parties, which
deals with lapsing of reservation:-
"127. Lapsing of reservations-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 proceedings for the
acquisition of such land under this Act or under the Land Acquisition Act,
1894, are not commenced within such period, the owner or any person
interested in the land may serve notice on the Planning Authority,
Development Authority or as the case may be, Appropriate Authority to that
effect; and if within six 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."
It is also an undisputed fact that after 10 years, notice dated 4.9.2002
served by the appellant under Section 127 of the MRTP Act upon the
respondent No.1 stating that if, the reserved land was needed for the
notified purpose, Railway department may acquire the same by adopting
acquisition proceedings, but if the same is not acquired, the clarification
to that effect be issued. Thereafter, on 3.3.2003 the period of 6 months as
prescribed under the provision of Section 127 of the MRTP Act, after
issuance of the above notice by the appellant and served on the respondent
No.1, was also lapsed long back. Therefore, the reservation of the land in
favour of the Railway was deemed to be released under the above said
provision of the MRTP Act. The respondent No. 2-Ministry of Railways
informed the Urban Development Department of the State Government on
1.11.2004 stating that there was no proposal for acquisition of the land in
the Railways in the near future, is evident from the undisputed fact of the
correspondence made between the Ministry of Railways and the Urban
Development Department of the State Government, which would clearly go to
show that the land reserved even after 10 years and on expiry of service of
notice of 6 months there was no intention on the part of the State
Government to acquire the reserved land for the purpose reserved in favour
of the Railways department to form the Railway tracks between "Thane and
Kurla". In that view of the matter, the land reserved for the purpose under
Section 127 of the MRTP Act, is lapsed and the appellant is entitled for
developing the land as it likes. The State Government instead of clarifying
to the notice issued by the appellant, has proceeded further to initiate
proceedings under Section 37 of the MRTP Act, proposing the modification in
the Development Plan by deleting Railway reservation and adding reservation
for Development Plan Road. Section 37(1) of the MRTP Act, which deals with
modification of Final Development Plan reads thus:-
"37.Modification of final Development Plan - (1) Where a modification of
any part of or any proposal made in, a final Development Plan is of such a
nature that it will not change the character of such Development Plan, the
Planning Authority may, or when so directed by the State Government shall,
within sixty days from the date of such direction, publish a notice in the
Official Gazette and in such other manner as may be determined by it
inviting objections and suggestions from any person with respect to the
proposed modification not later than one month from the date of such
notice; and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons,
submit the proposed modification (with amendments, if any), to the State
Government for sanction.
1A) If the Planning Authority fails to issue the notice as directed by the
State Government, the State Government, shall issue the notice and
thereupon, the provisions of sub-section (1) shall apply as they apply in
relation to a notice to be published by a Planning Authority."
By a careful reading of the provisions of Sections 127 and 37(1) of the
MRTP Act, which are extracted as above abundantly make it clear that the
State Government is not empowered to delete the reservation of the land
involved in this case from Railway use and to modify the same for
Development Plan Road in the Development Plan after expiry of 10 years and
6 months notice period was over as the appellant has acquired the valuable
statutory right upon the land and the reservation of the same for the
proposed formation of Railway track was lapsed long back. Further the
respondent No. 2 vide its letter dated 1.11.2004 has stated that there is
no proposal for acquisition of land for the purpose of which it was
reserved.
Section 127 of the MRTP Act, which fell for consideration before the
three Judge Bench of this Court in the case of Shrirampur Municipal
Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors.[2] wherein the
contention of the appellant that the majority judgment in the case of
Girnar Traders (2) v. State of Maharashtra[3] need to be considered by
larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of
Greater Bombay v. Hakimwadi Tenants' Asson.[4] case, was rejected. The
Court opined that the same is not contrary to Section 127 of the MRTP Act
and further held that there is no conflict between the judgments of the two-
Judge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment
in Girnar Traders (2) (supra) case. Further, the three Judge Bench
judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45
and 46 supported the observation of Constitution Bench in Girnar Traders
(3) v. State of Maharashtra[5] case relating to Section 127 of the MRTP
Act, which read thus:-
"45. In our view, the observations contained in para 133 of Girnar Traders
(3) unequivocally support the majority judgment in Girnar Traders (2).
46. As a sequel to the above discussion, we hold that the majority judgment
in Girnar Traders (2) lays down correct law and does not require
reconsideration by a larger Bench..."
From the above, it is clear that the majority view in Girnar Traders (2)
(supra) is held to be good law. Therefore, the case of Girnar Traders (2)
(supra) is binding precedent under Article 141 of the Constitution of India
upon the respondent No.1. The relevant paragraph 133 from Girnar Traders
(3) is extracted hereunder :-
"133. However, in terms of Section 127 of the MRTP Act, if any land
reserved, allotted or designated for any purpose specified is not acquired
by agreement within 10 years from the date on which final regional plan or
final development plan comes into force or if a declaration under sub-
section (2) or (4) of Section 126 of the MRTP Act is not published in the
Official Gazette within such period, the owner or any person interested in
the land may serve notice upon such authority to that effect and if within
12 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 lapsed and
the land would become available to the owner for the purposes of
development. The defaults, their consequences and even exceptions thereto
have been specifically stated in the State Act. For a period of 11 years,
the land would remain under reservation or designation, as the case may be,
in terms of Section 127 of the MRTP Act (10 years + notice period)."
In view of the above said statement of law declared by this Court in the
cases referred to supra, after adverting to the judgment of majority view
in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal
Council, Shrirampur (supra), wherein it is held that the Girnar Traders
(2)(supra) case is not conflicting with the Hakimwadi Tenants' Asson. case
(supra), the statement of law laid down in the above referred cases are
aptly applicable to the fact situation. Therefore, we have to hold that the
impugned notification is bad in law and liable to quashed. The High Court
has not examined the impugned notification from the view point of Section
127 of the MRTP Act and interpretation of the above said provision made in
the case of Girnar Traders (2) (supra), therefore, giving liberty to the
appellant by the High Court to file objections to the proposed notification
is futile exercise on the part of the appellant for the reason that the
State Government, once the purpose the land was reserved has not been
utilized for that purpose and a valid statutory right is acquired by the
land owner/interested person after expiry of 10 years from the date of
reservation made in the Development Plan and 6 months notice period is also
expired, the State Government has not commenced the proceedings to acquire
the land by following the procedure as provided under Sections 4 and 6 of
the repealed Land Acquisition Act, 1894. Therefore, the land which was
reserved for the above purpose is lapsed and it enures to the benefit of
the appellant herein. Therefore, it is not open for the State Government to
issue the impugned notification proposing to modify the Development Plan
from deleting for the purpose of Railways and adding to the Development
Plan for the formation of Development Plan Road after lapse of 10 years and
expiry of 6 months notice served upon the State Government.
In view of above, the order passed by the High Court as well as the
impugned notification issued by the State Government are vitiated in law
and liable to be set aside and quashed and we order accordingly.
The appeal is allowed. The impugned order is set aside and consequently
Rule issued. The impugned notification dated 5.8.2008 is also quashed as
the period of 10 years from the date of reservation in the Development Plan
and 6 months notice served by the appellant on the respondent No. 1 is also
over, the reservation of the land is lapsed. No costs.
.....................................................................J.
[V. GOPALA GOWDA]
..................................................................J.
[R. BANUMATHI]
New Delhi,
January 21,2015
-----------------------
[1]
(2009) 1 SCC 514
[2] (2013) 5 SCC 627
[3] (2007) 7 SCC 555
[4] (1988) Supp SCC 55
[5] (2011) 3 SCC 1
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1086 OF 2015
(ARISING OUT OF SLP(C)NO.19426 OF 2012)
GODREJ & BOYCE MANUFACTURING.CO.LTD. .........APPELLANT
Vs.
STATE OF MAHARASHTRA & ORS. ......RESPONDENTS
J U D G M E N T
V.GOPALA GOWDA, J.
Leave granted.
The appellant whose land bearing CTS Nos. 31(pt), 7 (pt), 70 to 78, 80(pt)
and 81, measuring 2188 sq. mtrs. at Vikhroli were reserved in the
Development Plan in the year 1991 for acquisition by the Ministry of
Railways for laying additional railway tracks between "Thane and Kurla",
has questioned the correctness of the notification dated 5.8.2008 issued
by the Urban Development Department of the respondent No. 1-State
Government under Section 37(1) of the Maharashtra Regional Town Planning
Act (for short "the MRTP Act") proposing the modification in the
Development Plan deleting the reservation of land in question from Railway
reservation and adding reservation for Development Plan Road, before the
High Court of Bombay questioning the power of the State Government
regarding the proposed modification in the Development Plan after the
period of 10 years specified under Section 127 of the MRTP Act, was expired
and the State Government has failed to take steps for acquisition of the
land involved in these proceedings reserved for the purpose of laying
additional railway tracks between "Thane and Kurla", which was not
interfered with by the High Court by recording its reasons in the impugned
order dated 12.12.2011, passed in the Writ Petition No. 2274 of 2011, is
under challenge in these proceedings, urging various legal contentions.
The brief facts of the case are as under:-
In the year 1991, appellant's land in question were reserved under the
Sanctioned Development Plan of Greater Mumbai for acquisition of respondent
No.2 herein - Union of India, Ministry of Railways for laying down
additional Railway tracks between "Thane and Kurla".
No steps were taken by the concerned authorities despite passing of 10
years period as contemplated under Section 127 of the MRTP Act to acquire
the reserved land of the appellant. The appellant has issued the purchase
notice under the said Section on 04.09.2002 to the respondent No.2 -
Ministry of Railways stating that if, the Ministry of Railways is in need
of the land in question, the same may be acquired by them, and if the same
is not required, a clarification to that effect may be issued.
After issuance of the said notice, the period of 6 months as prescribed
under Section 127 of the MRTP Act, was expired on 3.3.2003, thus, the
reservation of the land in question was deemed to be released.
Having got no reply from respondent No. 2, the appellant again wrote a
letter dated 2.10.2004 to respondent No.1 for de-reservation of the land if
the same is not required by them.
On 1.11.2004, the respondent No. 2 - Ministry of Railways informed the
Urban Development Department of State that there was no proposal for
acquisition of reserved land for railway development works in the Railways
in the near future.
The appellant, on 5.1.2005, wrote to the Urban Development Department of
the State Government requesting for suitable steps in view of clarification
letter dated 1.11.2004 issued by respondent No. 2 and requested it for
expediting the process of deleting the reservation of the land in question.
The Urban Development Department of the State Government has issued the
notification on 24.5.2006 under Section 37(1) of the MRTP Act, proposing
the modification to the Development Plan by deleting "Railway reservation"
and adding "Reservation for DP Road". The land which was reserved earlier
in the Development Plan for railway line, the period of 10 years and 6
months after issuing notice was lapsed, now proposed to be reserved for
Development Plan Road. The same was followed by another notification issued
by the State Government under Section 37(1) of the MRTP Act dated 5.8.2008
for modification of the land deleting from the Railway reservation and
reserving the same for Development Plan Road.
Being aggrieved by the said notification dated 5.8.2008 proposing the
modification of reservation of the land in question from the Railway line
to Development Plan Road, the appellant approached the High Court by filing
Writ Petition No. 2274 of 2011 challenging the correctness of the said
notification by placing strong reliance upon Section 127 of the MRTP Act,
contending that the proposed modification by the Urban Development
Department is impermissible in law as the State Government has no power to
do so.
The High Court vide its order dated 12.12.2011 dismissed the writ petition
by holding that the action of the State Government is only proposed
modification and therefore, the writ petition cannot be entertained at this
stage. However, the High Court has given liberty to the appellant to raise
objections before the Urban Development Department of the State Government
regarding the proposed modification. Further, it is observed by the High
Court in the impugned order that the impugned notification was issued in
the month of August, 2008, whereas the appellant has filed the petition in
the month of August, 2009. In the absence of explanation by the appellant
for filing a petition about one year after the issuance of impugned
notification, therefore, the writ petition was also rejected on this
ground. Hence, the civil appeal is filed by the appellant urging various
grounds.
Mr. Shyam Divan, the learned senior counsel appearing on behalf of the
appellant placed strong reliance upon the provision of Section 127 of the
MRTP Act, in support of his legal contention that the land of the appellant
involved in this case was reserved for the Development Plan by the State
Government for acquisition by the Ministry of Railways for laying
additional Railway tracks between "Thane and Kurla", which period of 10
years was expired long back and therefore, the proposed action to de-
reserve and modify the same for the abovesaid purpose is not permissible in
law.
It was further contended by the learned senior counsel that in view of the
law laid down in Prakash R. Gupta v. Lonavala Municipal Council and Ors.[1]
the land should have been acquired within 10 years from the date of
sanctioned development plan. No proceeding for acquisition of the reserved
land was commenced by the State Government and Railway department within
the said period under Section 127 of the MRTP Act. The land involved in
these proceedings having not been acquired by the respondents within
stipulated time of 10 years, the reservation of the land for the purpose of
railway under the provision of Section 127 of the MRTP Act has lapsed long
back and hence the same stands released from reservation in favour of the
appellant.
The learned senior counsel also contended that the High Court should have
seen that once the right of the appellant under Section 127 of the MRTP
Act, is accrued in favour of the appellant, any proposed modification of
the plan in exercise of power by the State Government under Section 37 of
the MRTP Act, should not be allowed to render the right of the appellant
under Section 127 of the MRTP Act as otiose.
On the contrary, Mr. R.P. Bhatt, the learned senior counsel on behalf of
the respondents sought to justify the impugned notification contending that
the Stat Government is empowered to modify the Development Plan by deleting
the earlier purpose for which the land was reserved, and can be modified
for Development Plan Road. The said action is only proposed one and
therefore, the appellant cannot have any grievance at this stage and can
raise objections to the impugned notification before the State Government,
the same will be examined it and take appropriate decision in the matter.
Therefore, he submits that the impugned order is not vitiated either on
account of erroneous reasoning or error in law and the same need not be
interfered with by this Court in exercise of its appellate jurisdiction in
this appeal.
Having heard the learned senior counsel on behalf of both the parties and
with reference to the abovesaid rival factual and legal contentions, we
have carefully examined the same keeping in view the undisputed facts
involved in this case. It is an undisputed fact that the respondent No. 1
has reserved the land in question for the Development Plan under the
provisions of Section 127 of the MRTP Act for the acquisition of the land
in favour of Ministry of Railways for laying additional railway track
between "Thane and Kurla". It would be apposite to extract Section 127 of
the MRTP Act for better appreciation of the claim of the parties, which
deals with lapsing of reservation:-
"127. Lapsing of reservations-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 proceedings for the
acquisition of such land under this Act or under the Land Acquisition Act,
1894, are not commenced within such period, the owner or any person
interested in the land may serve notice on the Planning Authority,
Development Authority or as the case may be, Appropriate Authority to that
effect; and if within six 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."
It is also an undisputed fact that after 10 years, notice dated 4.9.2002
served by the appellant under Section 127 of the MRTP Act upon the
respondent No.1 stating that if, the reserved land was needed for the
notified purpose, Railway department may acquire the same by adopting
acquisition proceedings, but if the same is not acquired, the clarification
to that effect be issued. Thereafter, on 3.3.2003 the period of 6 months as
prescribed under the provision of Section 127 of the MRTP Act, after
issuance of the above notice by the appellant and served on the respondent
No.1, was also lapsed long back. Therefore, the reservation of the land in
favour of the Railway was deemed to be released under the above said
provision of the MRTP Act. The respondent No. 2-Ministry of Railways
informed the Urban Development Department of the State Government on
1.11.2004 stating that there was no proposal for acquisition of the land in
the Railways in the near future, is evident from the undisputed fact of the
correspondence made between the Ministry of Railways and the Urban
Development Department of the State Government, which would clearly go to
show that the land reserved even after 10 years and on expiry of service of
notice of 6 months there was no intention on the part of the State
Government to acquire the reserved land for the purpose reserved in favour
of the Railways department to form the Railway tracks between "Thane and
Kurla". In that view of the matter, the land reserved for the purpose under
Section 127 of the MRTP Act, is lapsed and the appellant is entitled for
developing the land as it likes. The State Government instead of clarifying
to the notice issued by the appellant, has proceeded further to initiate
proceedings under Section 37 of the MRTP Act, proposing the modification in
the Development Plan by deleting Railway reservation and adding reservation
for Development Plan Road. Section 37(1) of the MRTP Act, which deals with
modification of Final Development Plan reads thus:-
"37.Modification of final Development Plan - (1) Where a modification of
any part of or any proposal made in, a final Development Plan is of such a
nature that it will not change the character of such Development Plan, the
Planning Authority may, or when so directed by the State Government shall,
within sixty days from the date of such direction, publish a notice in the
Official Gazette and in such other manner as may be determined by it
inviting objections and suggestions from any person with respect to the
proposed modification not later than one month from the date of such
notice; and shall also serve notice on all persons affected by the
proposed modification and after giving a hearing to any such persons,
submit the proposed modification (with amendments, if any), to the State
Government for sanction.
1A) If the Planning Authority fails to issue the notice as directed by the
State Government, the State Government, shall issue the notice and
thereupon, the provisions of sub-section (1) shall apply as they apply in
relation to a notice to be published by a Planning Authority."
By a careful reading of the provisions of Sections 127 and 37(1) of the
MRTP Act, which are extracted as above abundantly make it clear that the
State Government is not empowered to delete the reservation of the land
involved in this case from Railway use and to modify the same for
Development Plan Road in the Development Plan after expiry of 10 years and
6 months notice period was over as the appellant has acquired the valuable
statutory right upon the land and the reservation of the same for the
proposed formation of Railway track was lapsed long back. Further the
respondent No. 2 vide its letter dated 1.11.2004 has stated that there is
no proposal for acquisition of land for the purpose of which it was
reserved.
Section 127 of the MRTP Act, which fell for consideration before the
three Judge Bench of this Court in the case of Shrirampur Municipal
Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors.[2] wherein the
contention of the appellant that the majority judgment in the case of
Girnar Traders (2) v. State of Maharashtra[3] need to be considered by
larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of
Greater Bombay v. Hakimwadi Tenants' Asson.[4] case, was rejected. The
Court opined that the same is not contrary to Section 127 of the MRTP Act
and further held that there is no conflict between the judgments of the two-
Judge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment
in Girnar Traders (2) (supra) case. Further, the three Judge Bench
judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45
and 46 supported the observation of Constitution Bench in Girnar Traders
(3) v. State of Maharashtra[5] case relating to Section 127 of the MRTP
Act, which read thus:-
"45. In our view, the observations contained in para 133 of Girnar Traders
(3) unequivocally support the majority judgment in Girnar Traders (2).
46. As a sequel to the above discussion, we hold that the majority judgment
in Girnar Traders (2) lays down correct law and does not require
reconsideration by a larger Bench..."
From the above, it is clear that the majority view in Girnar Traders (2)
(supra) is held to be good law. Therefore, the case of Girnar Traders (2)
(supra) is binding precedent under Article 141 of the Constitution of India
upon the respondent No.1. The relevant paragraph 133 from Girnar Traders
(3) is extracted hereunder :-
"133. However, in terms of Section 127 of the MRTP Act, if any land
reserved, allotted or designated for any purpose specified is not acquired
by agreement within 10 years from the date on which final regional plan or
final development plan comes into force or if a declaration under sub-
section (2) or (4) of Section 126 of the MRTP Act is not published in the
Official Gazette within such period, the owner or any person interested in
the land may serve notice upon such authority to that effect and if within
12 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 lapsed and
the land would become available to the owner for the purposes of
development. The defaults, their consequences and even exceptions thereto
have been specifically stated in the State Act. For a period of 11 years,
the land would remain under reservation or designation, as the case may be,
in terms of Section 127 of the MRTP Act (10 years + notice period)."
In view of the above said statement of law declared by this Court in the
cases referred to supra, after adverting to the judgment of majority view
in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal
Council, Shrirampur (supra), wherein it is held that the Girnar Traders
(2)(supra) case is not conflicting with the Hakimwadi Tenants' Asson. case
(supra), the statement of law laid down in the above referred cases are
aptly applicable to the fact situation. Therefore, we have to hold that the
impugned notification is bad in law and liable to quashed. The High Court
has not examined the impugned notification from the view point of Section
127 of the MRTP Act and interpretation of the above said provision made in
the case of Girnar Traders (2) (supra), therefore, giving liberty to the
appellant by the High Court to file objections to the proposed notification
is futile exercise on the part of the appellant for the reason that the
State Government, once the purpose the land was reserved has not been
utilized for that purpose and a valid statutory right is acquired by the
land owner/interested person after expiry of 10 years from the date of
reservation made in the Development Plan and 6 months notice period is also
expired, the State Government has not commenced the proceedings to acquire
the land by following the procedure as provided under Sections 4 and 6 of
the repealed Land Acquisition Act, 1894. Therefore, the land which was
reserved for the above purpose is lapsed and it enures to the benefit of
the appellant herein. Therefore, it is not open for the State Government to
issue the impugned notification proposing to modify the Development Plan
from deleting for the purpose of Railways and adding to the Development
Plan for the formation of Development Plan Road after lapse of 10 years and
expiry of 6 months notice served upon the State Government.
In view of above, the order passed by the High Court as well as the
impugned notification issued by the State Government are vitiated in law
and liable to be set aside and quashed and we order accordingly.
The appeal is allowed. The impugned order is set aside and consequently
Rule issued. The impugned notification dated 5.8.2008 is also quashed as
the period of 10 years from the date of reservation in the Development Plan
and 6 months notice served by the appellant on the respondent No. 1 is also
over, the reservation of the land is lapsed. No costs.
.....................................................................J.
[V. GOPALA GOWDA]
..................................................................J.
[R. BANUMATHI]
New Delhi,
January 21,2015
-----------------------
[1]
(2009) 1 SCC 514
[2] (2013) 5 SCC 627
[3] (2007) 7 SCC 555
[4] (1988) Supp SCC 55
[5] (2011) 3 SCC 1
