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Friday, January 23, 2015

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. 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

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

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