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Thursday, May 25, 2017

Section 127 of the MRTP Act, which reads as under: “127. Lapsing of reservation: 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 (1 of 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.” Having regard to the peculiar facts of this case and that the Municipal Corporation has defaulted in certain respects, we are of the view that ends of justice would be sub-served if we allow the owner/ appellant to develop the reservation of 60% of land and after handing over it to the Planning Authority free of cost, then remaining 40% land is allowed to be developed as per the adjoining use, subject to the conditions that are mentioned in the Policy dated May 02, 2016. This order is passed in exercise of our powers under Article 142 of the Constitution and without treating this as a precedent. It may not be considered as tweaking with the Policy as the same is, otherwise, not applicable. That is taken as a yardstick for resolving the dispute as both the parties agreed for it. We also make it clear that the appellant would not be called upon to pay any penalties and the award passed in the case would not come in the way of the parties.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION


                        CIVIL APPEAL NO. 2640 OF 2016


|SATELLITE DEVELOPERS LIMITED               |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|STATE OF MAHARASHTRA & ORS.                |.....RESPONDENT(S)           |



                               J U D G M E N T


A.K. SIKRI, J.
            This  appeal  has  a  chequered  history  with  many  rounds  of
litigations.  At the same time, it may not be necessary to take  a  detailed
stock of various litigations.  It is simply because of the reason  that  the
controversy is substantially narrowed down, which  we  are  called  upon  to
decide in these proceedings.  However, a glimpse of  the  events  that  have
taken place since the start of the dispute may be spelled out  in  order  to
have an idea of the nature of the dispute that had initially arisen and  how
the controversy has remarkably shrunk and stands  before  us  in  a  totally
truncated form.  The  short  list  of  dates  and  event,  therefore,  would
suffice, which we reproduce below:

On September 16, 1991, the appellant claimed rights over the property  being
C.S. No. 1/255 on Foras Road, Tardeo Division,  Mumbai,  admeasuring  10,394
sq.mts.   Under  the  Maharashtra  Regional  and  Town  Planning  Act,  1966
(hereinafter referred to as the ‘MRTP’ Act), the  Municipal  Corporation  of
Greater Bombay can requisition the land for  development  for  the  purposes
specified under the said Act.  In respect of the  aforesaid  land,  a  Draft
Development Plan (DDP) was prepared by  the  Municipal  Corporation  in  the
year 1991.  Under the said Plan, 3548.52 sq.mts. of land  was  reserved  for
recreation ground, 1355 sq.mts for maternity home  and  5491.4  sq.mts.  for
housing the  dishoused.   However,  later  the  reservation  for  recreation
ground was reduced to 2000  sq.mts.   The  MRTP  Act  further  provides  for
acquisition of such land, by agreement or under the  Land  Acquisition  Act,
1894 in order to enable the Municipal Corporation to  develop  the  land  as
per the DDP.  If  the  steps  in  this  behalf  are  not  taken  within  the
stipulated period,  it  results  into  lapsing  of  the  land  reserved  for
development.  This was so provided under Section 127 of the MRTP Act,  which
reads as under:
“127.   Lapsing  of  reservation:   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 (1 of 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.”

On February 06, 2003, the appellant served upon the  respondent  Corporation
a purchase notice under Section 127 of the MRTP  Act  and  called  upon  the
Corporation to initiate acquisition proceedings in respect of land  reserved
for recreational ground.  On February 27, 2004, Notification  under  Section
6 of the Land Acquisition Act, 1894, read with Section 126 of the  MRTP  Act
was issued by respondent No.1.  On June 21, 2006, by notice  under  Sections
9 and 10 of the Land  Acquisition  Act,  respondent  No.4  called  upon  the
appellant to furnish details required as per the notice issued and  also  to
record objections in  respect  of  measurement  of  the  subject  land.   On
September 22, 2006, the appellants gave their No Objection for handing  over
the subject land against monetary compensation.   On  April  22,  2010,  the
appellant filed Writ Petition No. 1184 of 2010 wherein a prayer is made  for
a declaration of lapsing of the reservation.  The appellant,  however,  also
prayed for an alternative  order  in  the  nature  of  a  direction  to  the
respondents to acquire the land.

On July 21, 2010, the High Court disposed of  the  writ  petition  directing
respondent No.4 to pass the final award within a month and  granted  liberty
to the appellant to revive the writ petition in case  of  non-compliance  by
respondent No.4.  It may be mentioned herein that the appellant had  made  a
statement that it will not press prayer (a) in the  writ  petition  for  de-
reservation of the subject land.  The operative portion of the order of  the
High Court in this behalf reads as under:
“4.   We,  therefore,  dispose  of  the  petition  with  a  direction   that
respondent No.4 shall pass the award on or before  31st  October,  2010  and
make payment of compensation in accordance with the  award  within  a  month
thereafter.

5.  In case the respondent No.4 does not  comply  with  the  aforesaid  time
limit, the petitioner will be at liberty to move this Court for  appropriate
directions.  Liberty is  also  granted  to  the  petitioner  to  revive  the
petition.  This direction is  given  in  view  of  the  assurance  from  the
petitioner’s Counsel that petitioners will furnish  the  required  documents
to the authorities within reasonable time limit.”

Thereafter, on October 25, 2010,  the  High  Court  extended  the  time  for
passing of the award by respondent No.4 till December 31, 2010  and  further
extended the time to pay the compensation to January  31,  2011.   On  March
31, 2011, the Municipal Corporation sought  further  three  months  time  to
comply with the above-mentioned order dated July 21, 2010.  The  High  Court
directed  that  50%  of  the  award  amount  be  deposited  in  the   Court.
Respondent No.3 had signed an award on October 31, 2011 for 2000.25  sq.mts.
of land to be  acquired.   The  final  compensation  as  per  the  award  is
Rs.14,48,19,014/- and proper documents were required to be submitted.

On July 17, 2012, the appellant filed  another  writ  petition  bearing  No.
1600 of 2012 with a prayer to quash the award dated October 31, 2011  passed
by respondent No.4 on the ground that the  appellant  was  never  called  on
before signing of the award and neither was the compensation amount paid  by
the Municipal Corporation to respondent No.3 as per the  provisions  of  the
Land Acquisition Act.  Significantly,  the  appellant,  apart  from  seeking
orders of quashing of the award and  de-reservation  of  the  subject  land,
again sought to be compensated in terms of the Award.  In spite of  repeated
extensions sought by  the  Municipal  Corporation,  it  failed  to  pay  the
compensation to the appellant, as directed by the High Court  by  its  order
dated July 21, 2010.

Writ Petition No. 1184 of 2010 was finally heard  and  decided  on  May  08,
2013.  The High Court, after narrating the aforesaid events, found that  the
respondents did not act with due diligence, even  after  service  of  notice
upon them under Section 127 of the Act.  At the same time,  the  High  Court
was of the view that since the remedy under Article 226 of the  Constitution
of India was in the nature  of  prerogative  remedy  and  the  extraordinary
jurisdiction of the High Court was purely discretionary,  in  the  facts  of
the present case, it was not necessary to exercise  the  jurisdiction  under
Article 226 of the Constitution.  The  High  Court,  therefore,  refused  to
grant prayer (a) based on notice  dated  February  06,  2003  given  by  the
appellant to the respondents under Section 127 of  the  MRTP  Act.   In  the
process, the High Court observed that the appellant had  waived  the  effect
of its notice under Section 127 inasmuch as it was  regularly  following  up
with the respondents to  complete  the  acquisition  proceedings  and  claim
compensation against the same.  The High Court has also held  that  as  Writ
Petition No. 1600 of 2010 was pending, the question  regarding  validity  of
the award can be argued therein.

The present appeals were filed questioning the  validity  of  the  aforesaid
judgment dated May 08, 2013 passed by the High Court.  The matter was  taken
up from  time  to  time.   As  pointed  out  in  the  beginning,  since  the
controversy has been narrowed down, because of the positive  attitude  shown
by both the parties, it is not necessary to discuss the legal nuances.

The Municipal Corporation has placed on record the  Notification  dated  May
10, 2016 issued by the Urban Development Department  of  the  Government  of
Maharashtra.  It has offered to settle the matter on the terms contained  in
the said Notification.   This  Notification  provides  for  a  70/30  policy
whereby the Chief Officer may allow the owner to develop the reservation  on
70% of the land and after handing over it to the planning authority free  of
cost then remaining  30%  land  may  be  allowed  to  be  developed  as  per
adjoining use, subject to the following terms/conditions:
The owner shall be entitled to develop  remaining  30%  land  for  the  uses
permissible in adjoining zone with full permissible FSI of the  entire  plot
and permissible TDR potential of the entire plot.
The Municipal Chief Officer, if  required,  shall  allow  the  TDR  for  the
unutilised  FSI  if  any  (after  deducting  in-situ  FSI  as  mentioned  in
Sr.No.(i) above)  which  shall  be  utilised  as  per  the  TDR  utilisation
regulations.
No reservation shall allow to be developed partly.

Time was given to the appellant to respond  to  the  said  suggestion.   The
appellant, while maintaining  that  the  DDP  had  lapsed  in  view  of  the
provisions contained in Section 127 of the Act, responded to  the  aforesaid
proposal of the Municipal Corporation vide it is letter dated  December  26,
2016 by stating that the appellant was ready to consider developing  40%  of
the plot as a Recreation Garden for the city at their own  cost  if  60%  of
the balance plot  is  available  to  it  for  development,  subject  to  two
conditions,  viz.,  (i)  as  per  MCGM  policy,  100%  of  FSI/  development
potential of the entire plot is allowed to be constructed on  the  60%;  and
(ii) any open space deficiency in the planning of the  building  thereon  be
condoned without payment of any premium therefor.

When the matter was heard, both the parties were agreeable  to  resolve  the
dispute, but pressed their respective stance.  The appellant submitted  that
the proposal quoted in its letter  dated  December  26,  2016  be  accepted,
whereas the Municipal Corporation impressed upon this Court  to  dispose  of
the matter in terms of Notification dated May 10, 2016.  While taking  their
respective positions in the manner aforesaid, Mr. Sidharth  Luthra,  learned
senior counsel appearing for the appellant, and Mr. Mukul  Rohatgi,  learned
Attorney General appearing for the Municipal Corporation, agreed  that  they
would leave it to the Court to take any appropriate  and  suitable  decision
in the matter.

We have considered  the  matter.   Strictly  speaking,  the  Policy  is  not
applicable in the instant case.  However, both the parties want that  to  be
the basis for resolving the controversy.  For this reason, the appellant  is
not pressing its challenge predicated  on  Section  127  of  the  MRTP  Act.
However, at the same time, it wants some modification  of  policy  terms  in
its favour.  This constructive approach of both the parties commends to  us.
 Having regard to the peculiar facts of this case  and  that  the  Municipal
Corporation has defaulted in certain respects, we are of the view that  ends
of justice would be sub-served if we allow the owner/ appellant  to  develop
the reservation of 60% of land and after handing over  it  to  the  Planning
Authority free of cost, then remaining 40% land is allowed to  be  developed
as per the adjoining use, subject to the conditions that  are  mentioned  in
the Policy dated May 02, 2016.

This order is passed in exercise of our powers  under  Article  142  of  the
Constitution and without treating this  as  a  precedent.   It  may  not  be
considered as tweaking with the  Policy  as  the  same  is,  otherwise,  not
applicable.  That is taken as a yardstick for resolving the dispute as  both
the parties agreed for it.  We also make it clear that the  appellant  would
not be called upon to pay any penalties and the award  passed  in  the  case
would not come in the way of the parties.

The civil appeal is disposed of in the aforesaid terms.
      No costs.


                             .............................................J.
                                                                (A.K. SIKRI)



                             .............................................J.
                                                       (ABHAY MANOHAR SAPRE)
NEW DELHI;
APRIL 27, 2017.

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