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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.2733 OF 2013
(Arising out of SLP(C) No. 9934 of 2009)
Shrirampur Municipal Council, Shrirampur …Appellant
Versus
Satyabhamabai Bhimaji Dawkher and others …Respondents
WITH
CIVIL APPEAL NO.2735 OF 2013
(Arising out of SLP(C) NO. 8756 of 2009)
CIVIL APPEAL NO.2736 OF 2013
(Arising out of SLP(C) NO. 9617 of 2009)
CIVIL APPEAL NO.2739 OF 2013
(Arising out of SLP(C) NO. 13280 of 2009)
CIVIL APPEAL NO.2741 OF 2013
(Arising out of SLP(C) NO. 34943 of 2012)
CIVIL APPEAL NO.2742 OF 2013
(Arising out of SLP(C) NO. 36117 of 2012)
CIVIL APPEAL NO. 2747 OF 2013
(Arising out of SLP(C) NO. 36213 of 2012)
CIVIL APPEAL NO.2748 OF 2013
(Arising out of SLP(C) NO. 25742 of 2012)
CIVIL APPEAL NO.2749 OF 2013
(Arising out of SLP(C) NO. 26103 of 2012)
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CIVIL APPEAL NO.2750 OF 2013
(Arising out of SLP(C)13014 CC NO. 17030 of 2012)
J U D G M E N T
G. S. Singhvi, J.
1. Leave granted.
2. The question which arises for consideration in these appeals is
whether reservation of the parcels of land owned by the respondents in
the Regional plans/Development plans prepared under the Maharashtra
Regional and Town Planning Act, 1966 (for short, ‘the 1966 Act’) will be
deemed to have lapsed because the same were not acquired or no steps
were commenced in that respect within six months of the service of
notice under Section 127 of that Act.
3. For the sake of convenience, we shall first notice the facts from the
record of the appeal arising out of SLP(C) No. 9934/2009.
3.1 Respondent Nos. 1 to 5 are the owners in possession of the land
comprised in Gat Nos. 44/1/2 and 44/1/4, CTS No. 2141 measuring
about 2 hectares and 40 ares situated at Shrirampur Taluka, Shrirampur
(Maharashtra).
3.2 In the Development plan prepared for Shrirampur under the 1966
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Act, which was sanctioned by Director of Town Planning, Maharashtra
vide order dated 9.8.1991 and enforced with effect from 31.10.1991, the
land of respondent Nos. 1 to 5 was shown as reserved for primary school
and playground. However, the same was not acquired in accordance with
the provisions of Section 126 of the 1966 Act read with the Land
Acquisition Act, 1894 (for short, ‘the 1894 Act’).
3.3 After eleven and a half years of the reservation of their land,
respondent Nos. 1 to 5 issued purchase notice dated 29.5.2003 under
Section 127 of the 1966 Act, which was duly served upon the Chief
Officer of the appellant – Shrirampur Municipal Council, Shrirampur.
The relevant portions of the notice are extracted below:
“PURCHASE NOTICE
UNDER SECTION 127
Date:- 29.5.2003
To,
Hon. Chief Officer,
Nagar Parishad, Shrirampur,
Dist. Ahmednagar
Reference:-Development Plan (R) Shrirampur approved
Subject:- Purchase Notice Under Section 127 of Maharashtra Regional
and Town Planning Act, 1966.
We, the undersigned
1] Shrimati Satyabhamabai Bhimaji Dawkhar, Age - 70,
Occupation - Farming, House work,
2) Alka Shivaji Dawkher, age 47 years, Occupation - household 86 Agril
3) Sudhil Shivaji Dawkher, age 28 years, Occupation : Agril
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4) Vijay Shivaji Dawkher, age 26 years, Occupation : Agril
5) Rushikesh Shivaji Dawkher, age 24 years, Occupation: Agril
All R/o Mahadeo Mala, Shrirampur, Ward No. 7, Dist. Ahmednagar.
Hereby give notice under Section 127 of the above stated Act that, the
land located within the city limits of Shrirampur out of Gat No.44
admeasuring approx. 2.5 Hectare is owned by me and it has been
reserved as Reservation No.40 in Town Planning Scheme No.4. This
reservation has been reserved approx. 1 Acre for play ground. The
sanctioned Development Plan (R) Shrirampur of Shrirampur City has
been granted final sanction by the Director, Town Planning (State) Pune
vide their notification no. D. P. Shrirampur (Part) R/TPV 4-2837 Dated
31/12/91 and although more than 10 years duration has passed after
getting the final sanction to the Development Plan the Nagar Parishad has
taken no action to acquire the said land.
Through this notice you are being notified that, in case of your failure to
take suitable action to acquire the said land within 6 months of the receipt
of the said notice the land under reservation in Gat no. 44 shall become
free from reservation. Please take note. The said notice is being issued in
this behalf.”
3.4 The notice issued by respondent Nos.1 to 5 was considered in the
meeting of the General Body of the appellant held on 30.8.2003 and the
following resolution was passed:
“It is seen from the note submitted on the above subject that the land
bearing Gat No. 44, CTS No.2141 (part) within the Municipal Limit is
owned by Smt. Satyabhamabai Davkhar, out of which 4815 sq.mtr. of
area is reserved for Play Ground, vide reservation No.40 and for Primary
School & Play Ground, vide reservation No.41. Since the Municipal
Council has not acquired the land under said reservations after 10 years
of sanction of Development Plan, the land owner Smt. Davkhar has
served the purchase notice under section 127 of Maharastra Regional and
Town Planning Act, 1966.
The above referred lands are included in Town Planning Scheme No.IV.
But the above reservations are not included in Draft sanctioned Town
Planning Scheme No. IV. And hence the notice served by the owner is
tenable and also if the land acquisition proposal is not submitted to the
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Collector within the period of Six months from the date of issue of notice
the land will be released from reservations.
Therefore, by passing this Resolution the sanction is given to initiate the
land acquisition process for the above two reserved sites. And
accordingly the proposal should be submitted immediately to the
Collector, Ahmednagar. The expenses that would be required for the land
acquisition and to take possession and the allied expenses are also hereby
allowed.”
3.5 In furtherance of the aforesaid resolution, the President of the
appellant sent communication dated 24.12.2003 to Collector,
Ahmednagar and requested him to take action for the acquisition of land
comprised in Gat No. 44, CTS No. 2141 (part). The Collector sought
clarification on some issues. The appellant did the needful vide letter
dated 9.2.2004. Thereafter, land was got measured through City Survey
Officer and proposal dated 25.1.2007 was submitted to the Collector for
its acquisition. The Collector passed order dated 17.4.2007 under Section
52-A of the 1894 Act and authorized Sub-Divisional Officer, Shrirampur
to take the necessary steps.
3.6 In the meanwhile, respondent Nos. 1 to 5 filed Writ Petition No.
4774/2006 for grant of a declaration that the reservation of their land
stood lapsed in November, 2003 because the same had not been acquired
within six months of the service of notice under Section 127 of the 1966
Act. In support of their plea, respondent Nos. 1 to 5 relied upon the
judgment of this Court in Girnar Traders v. State of Maharashtra and
others (2007) 7 SCC 555 (hereinafter referred to as ‘Girnar Traders II’)
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and of the Division Bench of the Bombay High Court in Shivram Kondaji
Sathe and others v. State of Maharashtra and others 2009 (2) ALL MR
347.
3.7 The appellant contested the writ petition and pleaded that in terms
of resolution dated 30.8.2003, a proposal had been sent to the Collector
for the acquisition of land belonging to respondent Nos. 1 to 5 and vide
order dated 17.4.2007, the latter authorised the Sub-Divisional Officer to
do the needful.
3.8 The Division Bench of the High Court relied upon the judgments in
Shivram Kondaji Sathe and others v. State of Maharashtra and others
(supra) and Satyabhamabai v. State of Maharashtra and others (2008) 1
ALL MR 399 as also the judgment of this Court in Girnar Traders (II)
and held that reservation of the land in question will be deemed to have
lapsed because no steps were taken for acquisition thereof within six
months of the receipt of purchase notice. The High Court also directed
the appellant to de-reserve the land so as to enable the respondents to
develop the same.
4. We may now briefly notice the facts from the other appeals.
Appeal arising out of SLP(C)No.8756/2009
4.1 Respondent Nos. 1 to 4 are the owners in possession of land
comprised in Gat No.92 (part) admeasuring 45,983 square meters
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situated at Shirasgaon within the municipal boundary of the appellant. In
the Development plan, 6,360 square meters land belonging to respondent
Nos.1 to 4 was shown as reserved for playground. They issued purchase
notice dated 20.6.2002 under Section 127 of the 1966 Act. Thereafter,
the General Body of the appellant passed resolution dated 3.8.2002 for
sending a proposal to the District Collector for initiation of the
acquisition proceedings. After six months, the appellant sent detailed
proposal dated 6.12.2002 to the District Collector for acquiring the land,
but no concrete step was taken in that regard.
4.2 Writ Petition No. 3626/2006 was filed by respondent Nos. 1 to 4
for de-reservation of their land on the ground that the same had not been
acquired within ten years of enforcement of the Development plan and
expiry of six months counted from the date of receipt of purchase notice.
The Division Bench of the High Court referred to the judgment of this
Court in Girnar Traders (II) and allowed the writ petition by making the
following observations:
“In face of clear dictum of the Supreme Court we have no hesitation in
rejecting the contention raised on behalf of Respondents that they started
acquisition proceedings after receipt of purchase notice under Section
127 of the said Act within time. In fact when the present Writ Petition
came up for admission after long period from the date of filing, counsel
appearing on behalf of Respondents informed that till this date acquisition
proposal is pending with the Collector. To that effect we can safely rely
on letter dated 21/7/2006 from -Respondent No.5 to Respondent
No.2 forwarding some documents for the purpose of starting acquisition
proceedings in respect of Petitioners’ plot of land. Said letter is at page
36 in the present Petition. Even though Respondent No.5 filed their
affidavit in reply dated 21/11 /2006 nowhere they stated that they
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complied the notice under Section 127 of the said Act issued by the
Petitioners. Therefore, it is crystal clear that the Respondents failed to
acquire the Petitioners’ property in question within particular time as per
MRTP Act.”
Appeal arising out of SLP(C)No.9617/2009
5. The facts of this appeal are identical to the appeal arising out of
SLP(C) No.9934/2009. The only difference is that this appeal pertains to
the land comprised in Gat No.44/2 admeasuring 5,536 square meters.
Appeal arising out of SLP(C)No.13280/2009
6. Delay condoned.
6.1 In the Development plan for Greater Mumbai, which was
sanctioned on 23.12.1991, land comprised in CS 231 and 1/231, Byculla
Division, Maulana Azad Road, E-Ward, Mumbai admeasuring 2,526.78
square meters was shown as reserved for recreation ground.
6.2 Respondent No.1 Prabhat (Stove and Lamp) Products Company
Pvt. Ltd., which owns the land, issued purchase notice dated 7.12.2005 to
the Planning Authority, i.e., Municipal Corporation of Greater Mumbai
(MCGM) under Section 127 of the 1966 Act. There is some dispute
about receipt of the notice by the competent authority but it is an
admitted position that vide letter dated 15.12.2005, the Municipal
Commissioner of MCGM asked the Improvement Committee to initiate
the acquisition proceedings. On 3.6.2006, the Planning Authority
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submitted a proposal to the State Government for taking action in
accordance with Section 126(1)(c) of the 1966 Act. The State
Government issued notification dated 19.1.2007 under Section 126(2)
and (4) of the 1966 Act read with Section 6 of the 1894 Act.
6.3 Writ Petition No. 2303/2007 filed by respondent Nos. 1 and 2 for
quashing Notification dated 19.1.2007 was allowed by the High Court by
relying upon the judgment of this Court in Girnar Traders (II).
Appeal arising out of SLP(C)No.34943/2012
7.1 In the Development plan sanctioned for Pune Municipal
Corporation, which was notified on 5.1.1997, Plot No. 59, Gat No.17
situated at Kondhwa Khurd, Pune admeasuring 4,400 square meters was
shown as reserved for construction of children’s park.
7.2 Respondent – Sahyadri Land Development Corporation, which
owned the land, issued purchase notice dated 17.6.2010 under Section
127 of the 1966 Act, but the Planning Authority did not take steps for the
acquisition of land. Writ Petition No. 4457/2011 filed by the respondent
was allowed by the High Court by relying upon the judgment of this
Court in Girnar Traders (II) and the respondent was allowed to develop
the land.
Appeal arising out of SLP(C)No.36117/2012
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8.1 In the Development plan sanctioned for Pune Municipal
Corporation, plot bearing CTS No.1135 (old 54) owned by respondent
Nos.1 and 2 situated at Sadashiv Peth was shown as reserved for
children’s playground. After three years, the Commissioner inspected the
site and opined that the same was not suitable for the purpose for which it
was shown as reserved. Thereupon, the Corporation passed resolution
dated 19.4.1990 for de-reservation of the plot. The State Government
sanctioned the de-reservation in September, 1992 and directed the
Commissioner of the Corporation to take necessary action under Section
37 of the 1966 Act. The latter issued notice dated 18.5.1995 and invited
objections against the proposed de-reservation of the plot and its
inclusion in the residential zone. However, no final decision was taken in
the matter in view of circular dated 21.12.1995 issued by the State
Government.
8.2 After 14 years, the Standing Committee of the Corporation, in its
meeting held on 2.6.2009, decided to take steps for the acquisition of
land belonging to respondent Nos. 1 and 2. This decision was approved
by the General Body of the Corporation vide resolution dated 23.7.2009.
In compliance of that resolution, Deputy Chief Engineer of the
Corporation sent letter dated 10.8.2009 to the Special Land Acquisition
Officer to sanction initiation of the acquisition proceedings. On
20.5.2010, respondent Nos. 1 and 2 issued purchase notice under Section
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127 of the 1966 Act. Thereafter, they filed Writ Petition No.9895/2011
for grant of a declaration that reservation of their plot has lapsed because
the same was not acquired within six months of the receipt of purchase
notice. The Division Bench of the High Court allowed the writ petition
and declared that reservation of land belonging to respondent Nos. 1 and
2 will be deemed to have lapsed because steps were not taken for
acquisition thereof.
Appeal arising out of SLP(C)No.36213/2012
9. The facts of this appeal are substantially similar to that of the
appeal arising out of SLP (C) No. 36117/2012 except that the plot owned
by respondent Nos.1 to 5 is CST No.1134, Sadashiv Peth, Pune
admeasuring 567.72 square meters whereas the plot which is subject
matter of the other SLP is CST No.1135, Sadashiv Peth, Pune. The
reservation of CST No.1134 was for children’s playground. The High
Court allowed Writ Petition No.9895/2011 filed by respondent Nos.1 to
5 on the ground that the land had not been acquired within six months of
the receipt of purchase notice issued under Section 127 of the 1966 Act.
Appeal arising out of SLP(C)No.25742/2012
10. In the Development plan of Shrirampur (part) (revised), land
bearing Gat No.108 (74 Are) belonging to respondent No.1 was shown
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as reserved for garden and he was given alternative plot in Gat No.92
(part). However, that Gat was also reserved for playground/stadium.
After nine years, the State Government in exercise of the power vested in
it under Section 86 (1) of the 1966 Act sanctioned the Town Planning
Scheme. Respondent No.1 issued notice dated 5.1.2002 under Section
127 of the 1966 Act. The same was received in the office of the appellant
on 8.1.2002. The General Body of the appellant passed resolution dated
2.5.2002 whereby approval was accorded to the acquisition of land
comprised in Gat No.92 (part). Accordingly, letter dated 28.6.2002 was
sent to District Collector, Ahmednagar for initiation of the acquisition
proceedings. Writ Petition No.3399/2007 filed by respondent No.1 for
grant of a declaration that reservation of his plot had lapsed on account of
the Planning Authority’s failure to take steps for the acquisition of land
within six months of the receipt of purchase notice was allowed by the
Division Bench of the High Court vide order dated 27.7.2012.
Appeal arising out of SLP(C)No.26103/2012
11. In the Development plan of Shrirampur, Gat Nos. 91 and 92 (part)
belonging to respondent Nos.1 to 4 were shown as reserved for vegetable
market and shopping centre and also for library and cultural centre. The
Town Planning Scheme was sanctioned by the State Government on
22.9.1999. Some of the owners issued purchase notice dated 2.8.2002.
Thereupon, the General Body of the appellant passed resolution dated
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14.10.2002 for commencement of the acquisition proceedings. On
27.1.2003, the appellant sent requisition to the District Collector for the
acquisition of land owned by respondent Nos.1 to 4. Writ Petition
No.1314/2012 filed by them was allowed by the Division Bench of the
High Court on 26.7.2012 and it was declared that the reservation of their
land had lapsed because of the Planning Authority’s failure to acquire the
land within six months of the receipt of purchase notice.
Appeal arising out of SLP(C)................CC No.17030/2012
12. Delay condoned.
12.1 The factual matrix of the case is similar to the appeal arising out of
SLP (C) No.26103/2012. Respondent Nos.1 and 2 issued purchase
notice, which was received by the competent authority sometime in
December, 2007. In the next six months no steps were taken for the
acquisition of land. Therefore, by applying the ratio of Girnar Traders
(II), the High Court declared that the reservation of the land belonging to
respondent Nos.1 and 2 has lapsed.
Arguments
13. Shri Shekhar Naphade, learned senior counsel appearing for some
of the appellants, argued that the majority judgment in Girnar Traders (II)
deserves to be considered by a larger Bench because the same is contrary
to the plain language of Section 127 of the 1966 Act and the earlier
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judgment in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi
Tenants’ Association 1988 (Supp) SCC 55. Learned senior counsel then
referred to the order reported as Poona Timber Merchants and Saw Mill
Owners Association v. State of Maharashtra and others 2008 (4) SCALE
737 and other orders by which directions were given for hearing of some
of the special leave petitions along with Civil Appeal No.3703/2003 and
Civil Appeal No. 3922/2007 and argued that in view of the judgment of
the Constitution Bench in Girnar Traders v. State of Maharashtra (2011)
3 SCC 1 (hereinafter referred to as ‘Girnar Traders (III)’), the question
arising in these appeals should be referred to a Constitution Bench. Shri
Naphade further argued that the reservation of the respondents’ land
cannot be treated to have lapsed on the expiry of six months from the
date of receipt of purchase notices because in the meanwhile, the
appellants had passed resolutions and sent communications to the District
Collector to commence the acquisition proceedings and this amounted to
taking of steps within the meaning of Section 127 read with Section
126(1)(c) of the 1966 Act. Learned senior counsel submitted that the
expression “no steps as aforesaid are commenced” appearing in Section
127 must take their colour from Clause (c) of Section 126(1) and,
therefore, making of an application by the Planning Authority or sending
of a communication to the District Magistrate to start the acquisition
proceedings must be treated as sufficient to avert the consequence
envisaged under Section 127 of the 1966 Act. Shri Naphade relied upon
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the Constitution Bench judgment in Girnar Traders (III) and argued that
in view of the proposition laid down therein that Section 11A of the 1894
Act, which provides that the acquisition proceedings will lapse if the
award is not passed within two years from the date of publication of the
declaration made under Section 6(1) of that Act, is not applicable to the
scheme of the 1966 Act, the period of six months specified in Section
127 of that Act cannot be treated as sacrosanct and there cannot be
deemed lapsing of the reservation merely because the State Government
and/or its delegate fails to initiate proceedings for the acquisition of land
covered by the Regional plan/Development plan. Other learned counsel
adopted the arguments of Shri Naphade.
14. Learned counsel for the private respondents supported the
impugned orders and argued that the majority view in Girnar Traders (II)
cannot be ignored on the ground that it is inconsistent with the earlier
judgment in Dr. Hakimwadi Tenants’ Association (supra) because that
judgment had been considered and explained in the subsequent judgment.
Relevant Provisions
15. Section 2 of the 1966 Act contains definitions of various terms
including ‘Development Authority’, ‘Development plan’, ‘local
authority’, and ‘Planning Authority’. Section 21(1) imposes a duty on
every Planning Authority to carry out a survey, prepare an existing landuse map and a draft Development plan for the area within its jurisdiction
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in accordance with the provisions of a Regional plan, where there is such
a plan and submit the same to the State Government for sanction.
Section 21(2) lays down that every Planning Authority constituted after
the commencement of the Act shall prepare a draft Development plan
within a maximum period of three years. Section 21(4) provides that if
the Planning Authority fails to perform its duty in accordance with
Section 21(1) or (2), an officer appointed by the State Government shall
do the needful and recover the cost thereof from the funds of the Planning
Authority. Section 22 enumerates the contents of a Development plan.
Clauses (b) and (c) of that section read as under:
“22. Contents of Development Plan.- A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also indicate the manner in which
the development of land therein shall be carried out. In particular, it shall
provide so far as may be necessary for all or any of the following matters,
that is to say,-
(b) proposals for designation of land for public purpose, such as schools,
colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and
places for public entertainment, or public assembly, museums, art galleries, religious buildings and government and other public buildings as
may from time to time be approved by the State Government;
(c) proposals for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and
dairies;”
Sections 23 to 31 lay down the procedure to be followed in the
preparation and sanction of Development plans. Section 25 prescribes
the outer limit of six months, counted from the date of the declaration of
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intention of a Planning Authority to prepare a Development plan for the
purpose of carrying out a survey of the lands within its jurisdiction and
preparation of an existing land-use map. Section 26 prescribes an outer
limit of two years from the date of publication of notice under Section 23
for preparation of a draft Development plan and publication of notice in
the Official Gazette. In either case, the State Government can extend the
time prescribed by the statute subject to the condition that the time
specified in Section 26 cannot be extended for more than six months in
aggregate. Section 28(4) (un-amended) contained a limitation of three
months within which the Planning Committee was required to consider
the report of the Planning Authority or the concerned officer including the
objections and suggestions received by it or him. In terms of Section 30,
the Planning Authority is required to submit the draft Development plan
to the State Government within a period of twelve months. Section 31
(un-amended) laid down an outer limit of one year for sanction or return
of the draft Development plan. Proviso to Section 31(1) empowered the
State Government to extend the period for sanction of the draft
Development plan or refusal thereof. Section 31(5) lays down that if a
Development plan contains any proposal for the designation of any land
for a purpose specified in Clauses (b) and (c) of Section 22 and if such
land does not vest in the Planning Authority, the State Government shall
not include that land in the Development plan, unless it is satisfied that
the Planning Authority will be able to acquire the same by private
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agreement or compulsory acquisition within a period of 10 years from the
date on which the Development plan comes into operation. Section 32
postulates preparation of interim Development plan and Section 33
provides for plan or plans showing proposals for development of any area
or areas. Section 34 postulates preparation of a Development plan for
additional area. Section 35 contains a fiction and provides that a
Development plan duly sanctioned by the State Government before the
commencement of the 1966 Act shall be deemed to be a final
Development plan. Section 37 contains the procedure for modification of
the final Development plan. Section 38 lays down that the Development
plan should be revised at least once in 20 years. If the State Government
so directs, the Development plan can be revised even before the expiry of
20 years. Chapter IV of the 1966 Act (Sections 43 to 58) contains
provisions relating to control of development and use of land included in
the Development plans. Chapter V (Sections 59 to 112) deals with Town
Planning Schemes and Chapter VII (Sections 125 to 129) contains
provisions for compulsory acquisition of land needed for a Regional plan,
Development plan or Town Planning Scheme.
16. Section 126, which provides for the acquisition of land required or
reserved for any of the public purposes specified in any plan or scheme
prepared under the 1966 Act and Section 127, which envisages lapsing of
reservation in certain contingencies read as under:
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“Section 126. Acquisition of land required for public purposes specified in plans. - (1) When 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 an 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 Land
Acquisition Act, 1894, 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 Land Acquisition Act, 1894,
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 section or under the Land Acquisition Act, 1894, as the case
may be, shall vest 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 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 6 of the Land Acquisition Act, 1894 (1 of
1894), 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
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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 6, 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 an 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 area
or areas for comprehensive development, whichever is earlier, or as the
case may be, the date or publication of the draft town planning scheme:
Provided that, nothing in this sub-section shall affect the date for the
purposes 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 (Mah. XI of 1973):
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 subsection (1) of section 40 prior to the commencement of the
Maharashtra Regional and Town Planning (Second Amendment) Act,
1972 (Mah. XI of 1973), shall be the market value prevailing on the date
of such commencement.
(4) Notwithstanding anything contained in the proviso to sub-section (2)
and in subsection (3), if a declaration is not made within the period
referred to in subsection (2) or having been made, the aforesaid period
expired at the commencement of the Maharashtra Regional Town
Planning (Amendment) Act, 1993, the State Government may make a
fresh declaration for acquiring the land under the Land Acquisition Act,
1894 (I of 1894), in the manner provided by sub-sections (2) and (3) of
this section, subject to the modification that the market value of the land
shall be the market value at the date of declaration in the Official Gazette
made for acquiring the land afresh.
2Page 21
Section 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 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.”
Analysis of Sections 126 and 127 of the 1966 Act
17. Section 126(1) lays down that when any land is required or
reserved for any of the public purposes specified in any plan or scheme,
the Planning Authority, Development Authority, or any Appropriate
Authority can acquire the same by an agreement by paying an agreed
amount, or by granting the landowner or the lessee Floor Space Index or
Transferable Development Rights in lieu of the area of land surrendered
free of cost and free from all encumbrances and further additional Floor
Space Index or Transferable Development Rights against the
development or construction of the amenities on the surrendered land at
his cost, or by making an application to the State Government for
acquiring such land under the 1894 Act. Once the land is acquired by an
agreement under Section 126(1)(a) or by grant of Floor Space Index or
2Page 22
additional Floor Space Index or Transferable Development Rights under
Section 126(1)(b) or under the 1894 Act, the same vests in the Planning
Authority, Development Authority or Appropriate Authority, as the case
may be. Section 126(2) empowers the State Government to make a
declaration under Section 6 of the 1894 Act. Proviso to this sub-section
fixes the time limit of one year for making such declaration. Section
126(3) lays down that on publication of a declaration under Section 6 of
the 1894 Act, the Collector shall proceed to take order for the acquisition
of the land under the 1894 Act and the provisions of that Act shall apply
to such acquisition with the modification regarding market value as
specified in Clauses (i) to (iii) of that sub-section. Section 126(4)
contains a non obstante clause and provides that if a declaration is not
made within the period referred to in sub-section (2), or having been
made, such period expired at the commencement of the Maharashtra
Regional Town Planning (Amendment) Act, 1993, the State Government
can make fresh declaration under the 1894 Act. This is subject to the
rider that in such an event, market value of the acquired land shall be
determined with reference to the date of fresh declaration. Section 127
speaks of lapsing of reservation. It lays down that if any land reserved,
allotted or designated for any purpose specified in any plan prepared and
sanctioned under the 1966 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
2Page 23
under the 1966 Act read with the 1894 Act are not commenced within
that period, the owner or any person interested in the land may serve
notice on the Planning Authority, Development Authority or Appropriate
Authority to that effect. That section further lays down that if the land is
not acquired or no steps are commenced for its acquisition within six
months from the date of service of notice, the reservation etc. shall be
deemed to have lapsed and the land shall be deemed to have been
released from such reservation etc. so as to enable the owner to develop
the same.
18. The scope of Sections 126 and 127 of the 1966 Act was
considered by a two-Judge Bench in Dr. Hakimwadi Tenants’
Association (supra). The facts of that case were that the Planning
Authority had published a draft Development plan in respect of ‘D’ ward
showing the property belonging to late Dr. Eruchshaw Jamshedji Hakim
as reserved for recreation ground. The final Development plan was made
effective from 7.2.1967. However, no action was taken for the acquisition
of land. The owner served purchase notice dated 1.7.1977 on the
Commissioner of the Corporation. After about six months, the
Corporation passed resolution dated 10.1.1978 for the acquisition of land
and sent an application to the State Government for taking necessary
steps. Thereupon the State Government issued Notification dated
7.4.1978 under Section 6 of the 1894 Act. The writ petition filed by Dr.
2Page 24
Hakimwadi Tenants’ Association for quashing the notification was
allowed by the learned Single Judge of the Bombay High Court, who held
that the acquisition proceedings commenced by the State Government
under Section 126(2) at the instance of the Planning Authority were not
valid because steps were not taken for the acquisition of land under
Section 126(1) of the 1966 Act read with Section 6 of the 1894 Act
within the prescribed time. The learned Single Judge observed that the
period of six months prescribed under Section 127 began to run from the
date of service of purchase notice and the Corporation had to take steps
to acquire the property before 4.1.1978, which was not done. The
Division Bench of the High Court approved the view taken by the learned
Single Judge and held that the most crucial step was the application to be
made by the Corporation to the State Government under Section 126(1)
of the 1966 Act for the acquisition of land and such step ought to have
been taken within the period of six months commencing from 4.7.1977.
This Court expressed agreement with the counsel for the Corporation that
the words ‘six months from the date of service of such notice’ used in
Section 127 of the 1966 Act were not susceptible to a literal construction,
but observed:
“8. ……………………….it must be borne in mind that the period of
six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the com-
2Page 25
peting claims of the interests of the general public as regards the rights of
an individual.”
(emphasis supplied)
The Court then made detailed analysis of Section 127 of the 1966 Act
and held:
“10. Another safeguard provided is the one under Section 127 of the
Act. It cannot be laid down as an abstract proposition that the period of
six months would always begin to run from the date of service of notice.
The Corporation is entitled to be satisfied that the purchase notice under
Section 127 of the Act has been served by the owner or any person interested in the land. 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. In the present case, these considerations do not arise. We
must hold in agreement with the High Court that the purchase notice
dated July 1, 1977 served by Respondents 4-7 was a valid notice and
therefore with the failure of the appellant to take any steps for the acquisition of the land within the period of six months therefrom, the reservation
of the land in the Development Plan for a recreation ground lapsed and
consequently, the impugned notification dated April 7, 1978 under Section 6 of the Land Acquisition Act issued by the State Government must
be struck down as a nullity.
11. Section 127 of the Act is a part of the law for acquisition of lands
required for public purposes, namely, for implementation of schemes of
town planning. The statutory bar created by Section 127 providing that
reservation of land under a development scheme shall lapse if no steps
are taken for acquisition of land within a period of six months from the
date of service of the purchase notice, is an integral part of the machinery
created by which acquisition of land takes place. The word “aforesaid” in
the collocation of the words “no steps as aforesaid are commenced for its
acquisition” obviously refer to the steps contemplated by Section 126(1).
The effect of a declaration by the State Government under sub-section (2)
thereof, if it is satisfied that the land is required for the implementation of
a regional plan, development plan or any other town planning scheme,
followed by the requisite declaration to that effect in the official Gazette,
in the manner provided by Section 6 of the Land Acquisition Act, is to
freeze the prices of the lands affected. The Act lays down the principles
2Page 26
of fixation by providing firstly, by the proviso to Section 126(2) that no
such declaration under sub-section (2) shall be made after the expiry of
three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting sub-section (4) of
Section 126 that if a declaration is not made within the period referred to
in sub-section (2), the State Government may make a fresh declaration
but, in that event, the market value of the land shall be the market value
at the date of the declaration under Section 6 and not the market value at
the date of the notification under Section 4, and thirdly, by Section 127
that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the
date on which a final regional plan or development plan comes into force
or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be
deemed to be released from such reservation, allotment or designation
and become available to the owner for the purpose of development on the
failure of the Appropriate Authority to initiate any steps for its acquisition
within a period of six months from the date of service of a notice by the
owner or any person interested in the land. It cannot be doubted that a
period of 10 years is long enough. The Development or the Planning Authority must take recourse to acquisition with some amount of
promptitude in order that the compensation paid to the expropriated
owner bears a just relation to the real value of the land as otherwise, the
compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed.”
(emphasis supplied)
19. The same issue was again considered in Girnar Traders (II). S.P.
Building Corporation was the owner of a piece of land bearing City Sy.
No. 18/738 admeasuring about 5387.35 square yards situated at
Carmichael Road, Malabar Hill Division, Mumbai. The Development
plan prepared by Bomba Municipal Corporation was sanctioned by the
State Government on 6.1.1967 and was enforced on 7.2.1967. The
belonging to S.P. Building Corporation was notified as “open space and
2Page 27
children’s park”. After coming into force of the 1966 Act, the landowners
served notice under Section 127 of that Act for de-reservation of the land.
Two similar notices were issued by S.P. Building Corporation on
18.10.2000 and 15.3.2002. after about eight months the State
Government issued notification dated 20.11.2002 under Section 126(2)
and (4) of the 1966 Act read with Section 6 of the 1894 Act. Writ
Petition No.353/2005 filed by S.P. Building Corporation questioning the
notification issued by the State Government was dismissed by the
Division Bench of the High Court by observing that Resolution dated
9.9.2002 passed by the Improvement Committee of the Municipal
Corporation would constitute a step as contemplated by Section 127 of
the 1966 Act. The Division Bench further held that Section 11A of the
1894 Act, as amended, is not applicable to the proceedings initiated for
the acquisition of land under the 1966 Act. Civil Appeal No.3922/2007
filed by S.P. Building Corporation was decided by the three Judge Bench
along with Civil Appeal No.3703/2003 - Girnar Traders v. State of
Maharashtra. Speaking for the majority, P.P. Naolekar, J., referred to the
relevant provisions of the 1966 Act including Sections 126 and 127, and
observed:
“31. Section 127 prescribes two time periods. First, a period of 10 years
within which the acquisition of the land reserved, allotted or designated
has to be completed by agreement from the date on which a regional plan
or development plan comes into force, or the proceedings for acquisition
of such land under the MRTP Act or under the LA Act are commenced.
Secondly, if the first part of Section 127 is not complied with or no steps
2Page 28
are taken, then the second part of Section 127 will come into operation,
under which a period of six months is provided from the date on which
the notice has been served by the owner within which the land has to be
acquired or the steps as aforesaid are to be commenced for its acquisition. The six-month period shall commence from the date the owner or
any person interested in the land serves a notice on the planning authority, development authority or appropriate authority expressing his intent
claiming dereservation of the land. If neither of the things is done, the reservation shall lapse. If there is no notice by the owner or any person interested, there is no question of lapsing reservation, allotment or designation of the land under the development plan. Second part of Section 127
stipulates that the reservation of the land under a development scheme
shall lapse if the land is not acquired or no steps are taken for acquisition
of the land within the period of six months from the date of service of the
purchase notice. The word “aforesaid” in the collocation of the words
“no steps as aforesaid are commenced for its acquisition” obviously
refers to the steps contemplated by Section 126 of the MRTP Act.
If no proceedings as provided under Section 127 are taken and as a result
thereof the reservation of the land lapses, the land shall be released from
reservation, allotment or designation and shall be available to the owner
for the purpose of development. The availability of the land to the owner
for the development would only be for the purpose which is permissible
in the case of adjacent land under the relevant plan. Thus, even after the
release, the owner cannot utilise the land in whatever manner he deems fit
and proper, but its utilisation has to be in conformity with the relevant
plan for which the adjacent lands are permitted to be utilised.”
(emphasis supplied)
Naolekar, J. then referred to the judgment in Dr. Hakimwadi Tenants’
Association (supra) and proceeded to observed:
“52. ………….Thus, after perusing the judgment in Municipal Corpn.
of Greater Bombay case we have found that the question for consideration before the Court in Municipal Corpn. of Greater Bombay case has
reference to first step required to be taken by the owner after lapse of 10
years' period without any step taken by the authority for acquisition of
land, whereby the owners of the land served the notice for dereservation
of the land. The Court was not called upon to decide the case on the substantial step, namely, the step taken by the authority within six months of
service of notice by the owners for dereservation of their land which is
second step required to be taken by the authority after service of notice.
2Page 29
53. The observations of this Court regarding the linking of word
“aforesaid” from the wordings “no steps as aforesaid are commenced for
its acquisition” of Section 127 with the steps taken by the competent authority for acquisition of land as provided under Section 126(1) of the
MRTP Act, had no direct or substantial nexus either with the factual matrix or any of the legal issues raised before it. It is apparent that no legal
issues, either with respect to interpretation of words “no steps as aforesaid are commenced for its acquisition” as stipulated under the provisions of Section 127 or any link of these words with steps to be taken on
service of notice, were contended before the Court. Thus, observations of
the Court did not relate to any of the legal questions arising in the case
and, accordingly, cannot be considered as the part of ratio decidendi.
Hence, in light of the aforementioned judicial pronouncements, which
have well settled the proposition that only the ratio decidendi can act as
the binding or authoritative precedent, it is clear that the reliance placed
on mere general observations or casual expressions of the Court, is not of
much avail to the respondents.
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 case. 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 subsection (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.
2Page 30
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.
57. It may also be noted that the legislature while enacting Section
127 has deliberately used the word “steps” (in plural and not in singular)
which are required to be taken for acquisition of the land. On construction of Section 126 which provides for acquisition of the land under the
MRTP Act, it is apparent that the steps for acquisition of the land would
be issuance of the declaration under Section 6 of the LA Act. Clause (c)
of Section 126(1) merely provides for a mode by which the State Government can be requested for the acquisition of the land under Section 6 of
the LA Act. The making of an application to the State Government for
acquisition of the land would not be a step for acquisition of the land under reservation. Sub-section (2) of Section 126 leaves it open to the State
Government either to permit the acquisition or not to permit, considering
the public purpose for which the acquisition is sought for by the authorities. Thus, the steps towards acquisition would really commence when the
State Government permits the acquisition and as a result thereof publishes the declaration under Section 6 of the LA Act.
58. The MRTP Act does not contain any reference to Section 4 or Section 5-A of the LA Act. The MRTP Act contains the provisions relating
to preparation of regional plan, the development plan, plans for comprehensive developments, town planning schemes and in such plans and in
the schemes, the land is reserved for public purpose. The reservation of
land for a particular purpose under the MRTP Act is done through a complex exercise which begins with land use map, survey, population studies
and several other complex factors. This process replaces the provisions of
Section 4 of the LA Act and the inquiry contemplated under Section 5-A
of the LA Act. These provisions are purposely excluded for the purposes
of acquisition under the MRTP Act. The acquisition commences with the
publication of declaration under Section 6 of the LA Act. The publication
of the declaration under sub-sections (2) and (4) of Section 126 read with
3Page 31
Section 6 of the LA Act is a sine qua non for the commencement of any
proceedings for acquisition under the MRTP Act. It is Section 6 declaration which would commence the acquisition proceedings under the
MRTP Act and would culminate into passing of an award as provided in
sub-section (3) of Section 126 of the MRTP Act. Thus, unless and until
Section 6 declaration is issued, it cannot be said that the steps for acquisition are commenced.
59. There is another aspect of the matter. If we read Section 126 of the
MRTP Act and the words used therein are given the verbatim meaning,
then the steps commenced for acquisition of the land would not include
making of an application under Section 126(1)(c) or the declaration
which is to be made by the State Government under sub-section (2) of
Section 126 of the MRTP Act.
60. On a conjoint reading of sub-sections (1), (2) and (4) of Section
126, we notice that Section 126 provides for different steps which are to
be taken by the authorities for acquisition of the land in different eventualities and within a particular time span. Steps taken for acquisition of the
land by the authorities under Clause (c) of Section 126(1) have to be culminated into Section 6 declaration under the LA Act for acquisition of the
land in the Official Gazette, within a period of one year under the proviso
to sub-section (2) of Section 126. If no such declaration is made within
the time prescribed, no declaration under Section 6 of the LA Act could
be issued under the proviso to sub-section (2) and no further steps for acquisition of the land could be taken in pursuance of the application moved
to the State Government by the planning authority or other authority.
61. Proviso to sub-section (2) of Section 126 prohibits publication of
the declaration after the expiry of one year from the date of publication of
draft regional plan, development plan or any other plan or scheme. Thus,
from the date of publication of the draft regional plan, within one year an
application has to be moved under Clause (c) of Section 126(1) which
should culminate into a declaration under Section 6 of the LA Act. As per
the proviso to sub-section (2) of Section 126, the maximum period permitted between the publication of a draft regional plan and declaration by
the Government in the Official Gazette under Section 126(2) is one year.
In other words, during one year of the publication of the draft regional
plan, two steps need to be completed, namely, (i) application by the appropriate authority to the State Government under Section 126(1)(c); and
(ii) declaration by the State Government on receipt of the application
mentioned in Clause (c) of Section 126(1) on satisfaction of the conditions specified under Section 126(2). The only exception to this provision
has been given under Section 126(4).”
3Page 32
(emphasis supplied)
20. In our view, there is no conflict between the judgments of the twoJudge Bench in Dr. Hakimwadi Tenants’ Association (supra) and the
majority judgment in Girnar Traders (II). In both the cases, this Court
emphasized that if any private land is shown as reserved, allotted or
designated for any purpose specified in any Development plan, the same
may be acquired within ten years either by agreement or by following the
procedure prescribed under the 1894 Act, and if proceedings for the
acquisition of land are not commenced within that period and a further
period of six months from the date of service of notice under Section 127
of the 1966 Act, then the land shall be deemed to have been released
from such reservation, allotment, etc. In Dr. Hakimwadi Tenants’
Association (supra), notice under Section 127 was issued on 1.7.1977.
The State Government did not take any steps for the acquisition of land
within next six months. The learned Single Judge and the Division Bench
of the High Court held that in terms of second part of Section 127, the
reservation of land for recreation ground will be deemed to have lapsed.
This Court unequivocally approved the view expressed by the High Court
(paragraphs 10 and 11). The majority judgment in Girnar Traders (II)
appears to suggest that the question considered and decided in Dr.
Hakimwadi Tenants’ Association (supra) was slightly different, but
having carefully gone through paragraphs 10 and 11 of the first judgment,
3Page 33
we are convinced that the question involving interpretation of Section 127
was very much considered and decided by the two-Judge Bench in favour
of the landowner and there is no conflict in the opinion expressed in the
two judgments.
21. We are further of the view that the majority in Girnar Traders (II)
had rightly observed that steps towards the acquisition would really
commence when the State Government takes active steps for the
acquisition of the particular piece of land which leads to publication of
the declaration under Section 6 of the 1894 Act. Any other interpretation
of the scheme of Sections 126 and 127 of the 1966 Act will make the
provisions wholly unworkable and leave the landowner at the mercy of
the Planning Authority and the State Government.
22. The expression “no steps as aforesaid” used in Section 127 of the
1966 Act has to be read in the context of the provisions of the 1894 Act
and mere passing of a resolution by the Planning Authority or sending of
a letter to the Collector or even the State Government cannot be treated
as commencement of the proceedings for the acquisition of land under the
1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966
Act, the State Legislature has made a definite departure from the scheme
of acquisition enshrined in the 1894 Act. But a holistic reading of these
provisions makes it clear that while engrafting the substance of some of
the provisions of the 1894 Act in the 1966 Act and leaving out other
3Page 34
provisions, the State Legislature has ensured that the landowners/other
interested persons, whose land is utilized for execution of the
Development plan/Town Planning Scheme, etc., are not left high and
dry. This is the reason why time limit of ten years has been prescribed in
Section 31(5) and also under Sections 126 and 127 of the 1966 Act for
the acquisition of land, with a stipulation that if the land is not acquired
within six months of the service of notice under Section 127 or steps are
not commenced for acquisition, reservation of the land will be deemed to
have lapsed. Shri Naphade’s interpretation of the scheme of Sections
126 and 127, if accepted, will lead to absurd results and the landowners
will be deprived of their right to use the property for an indefinite period
without being paid compensation. That would tantamount to depriving the
citizens of their property without the sanction of law and would result in
violation of Article 300A of the Constitution.
23. Before concluding, we may notice the judgment of the Constitution
Bench in Girnar Traders (III) on which reliance was placed by Shri
Shekhar Naphade. The main question decided in that case was whether
Section 11A of the 1894 Act is applicable to the acquisition of land made
under the 1966 Act. The Constitution Bench referred to the provisions of
the 1966 Act (as amended) including Chapter VII thereof and held that
Section 11A of the 1894 Act cannot be bodily lifted and read into the
scheme of the 1966 Act. At the same time, it held that if any land is
3Page 35
reserved, allotted or designated for any purpose specified in the Regional
plan or Development plan and the same is not acquired by agreement
within 10 years from the date of enforcement of such plan or the
declaration under sub-section (2) or (4) of Section 126 of the 1966 Act is
not published in the Official Gazette within that period, the owner or any
person interested in the land may serve notice upon the Planning
Authority etc. and if within 12 months of the service of notice the land is
not acquired or no steps, as aforesaid are commenced for its acquisition,
the reservation etc. will automatically lapse. All this is evinced from
paragraphs 125-129, 132-134, 136 and 138 of the Constitution Bench
judgment, which are extracted below:
“125. In terms of Section 126(1)(c) of the MRTP Act, the application to
the State Government has to be made for acquiring such land under the
Land Acquisition Act. Such land refers to the lands which are required
only under the provisions of the MRTP Act. Section 126(2) refers to Section 6 of the Land Acquisition Act only for the purpose of format in
which the declaration has to be made. In terms of Section 126(3), on publication of the declaration, the Collector shall proceed to take order for
acquisition of the land under the State Act i.e. for the purpose of acquisition of land; the procedure adopted under the Land Acquisition Act shall
be adopted by the Collector and nothing more. The aforereferred provisions of the State Act clearly frame a scheme for planned development
with limited incorporation of some of the provisions of the Land Acquisition Act.
126. The provisions of the State Act were amended last in point of time
and, therefore, the State Legislature was aware of the relevant existing
laws including Section 11-A of the Land Acquisition Act. The intent of
the legislature to exclude the application of Section 11-A clearly emerges
from the fact that while amending Section 127 of the MRTP Act, it made
no reference, generally or specifically, to the said provision rather it deleted reference to the provisions of the Land Acquisition Act from the unamended provisions of Section 127. Reference to Section 16 of the Land
3Page 36
Acquisition Act in the State Act, under Section 128(3) of the State Act, is
again relatable to the acquisition proceedings under the Land Acquisition
Act, as under Section 83 of the State Act, the land could vest in the Planning Authority even at the threshold and it is vesting of a different kind
than contemplated under Section 16 of the Land Acquisition Act. The
purpose and intent of Section 129 of the MRTP Act is akin to the provisions of Section 17 of the Land Acquisition Act and from linguistic point
of view, there is similarity in the two sections but still the State Act has
provided for a complete scheme with regard to possession and compensation payable to the owner of the land in cases of urgency. Thus, it is clear
that there is no general reference to the provisions of the Land Acquisition Act and they shall not apply as such or even mutatis mutandis to the
MRTP Act. On the contrary, reference to the Central Act, wherever is
made in the State Act, is specific and for a definite purpose.
127. Another argument which had been vehemently advanced on behalf
of the appellant is that the reference to the provisions of the Land Acquisition Act in different provisions of the MRTP Act would require that the
proceedings commence from Section 6 of the Central Act onwards and
award is made in terms of Section 11 of that Act and as those provisions
apply to these proceedings, Section 11-A would automatically come into
play so would the other provisions of the Land Acquisition Act. The expression “under the said Act” in Section 126(3) of the MRTP Act is sufficient indication that it is a legislation by reference and, thus, all subsequent amendments would apply. It was also contended that on a bare
reading of Sections 126 and 127 of the MRTP Act, it is clear that it does
not exclude the application of Section 11-A of the Land Acquisition Act.
128. We certainly are not impressed by this argument advanced on behalf
of the appellants. Firstly, if we examine the acquisition proceedings under
the Land Acquisition Act, they commence only when a notification under
Section 4 of the Land Acquisition Act is issued. Section 5-A of the Central Act makes it incumbent upon the authorities to invite objections and
decide the same before issuing declaration under Section 6 of the Land
Acquisition Act. All these proceedings have specifically been given a goby under the MRTP Act, where notification is to be issued under Section
126(2) in the manner provided under Section 6 of the Land Acquisition
Act. Secondly, specific reference to various sections of the Land Acquisition Act in the MRTP Act necessarily implies exclusion of the provisions
not specifically mentioned therein. Lastly, acquisition proceedings under
the MRTP Act are commenced by issuance of a declaration under Section 126(2) and then the procedure prescribed under the Land Acquisition
Act is followed up to the passing of award under Section 11 of that Act.
129. Further, determination of compensation will again depend upon the
principles stated in Sections 23 and 24 of the Land Acquisition Act but
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subject to Sections 128(2) and 129(1) of the MRTP Act. Statutory benefits accrued under Sections 23(1-A), 23(2) and 28 of the Land Acquisition Act would be applicable as held by this Court in U.P. Avas Evam
Vikas Parishad. Vesting, unlike Section 16 of the Land Acquisition Act
which operates only after the award is made and compensation is given,
whereas under the MRTP Act it may operate even at the initial stages before making of an award, for example, under Sections 126(1)(c) and 83.
132. Besides this, another very important aspect of the present case is
that if the provisions of Section 11-A of the Land Acquisition Act are applied or deemed to be incorporated by application of any doctrine of law
into the provisions of the MRTP Act, it will have the effect of destroying
the statutory rights available to the State Government and/or the Planning
Authority. For instance, proviso to Section 126(2) of the State Act
provides that where a declaration in the manner provided in Section 6 of
the Land Acquisition Act in respect of the said land is not made within
one year from the date of publication of draft regional plan, thereafter no
such declaration shall be made. Section 126(4) makes an exception to the
consequences stated in the proviso to Section 126(2) that the State Government, notwithstanding those provisions, can make a fresh declaration
for acquiring the land under the Land Acquisition Act. However, the market value of the land shall be the market value at the date of declaration in
the Official Gazette made for acquiring such land afresh. In other words,
the rest of the machinery provided under the Act would not operate after
the prescribed period.
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).
134. However, if the provisions of Section 11-A of the Central Act were
permitted to punctuate a scheme of the State Act and the award is not
made within two years from the date of declaration under Section 6 of the
Central Act, the acquisition proceedings will lapse which will frustrate
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the rights of the State as well as the scheme contemplated under Section
126 as well as Section 127 of the State Act and that would not be permissible in law. This being legislation by incorporation, the general reference to the provisions of the Land Acquisition Act shall stand excluded.
136. Section 126(2) of the State Act refers to the manner of declaration
as contemplated under Section 6 of the Land Acquisition Act but the legislature intentionally avoided making any reference to other features
contained in Section 6 of the Central Act as well as the time-frame prescribed under that Act. On the contrary, proviso to Section 126(2) of the
MRTP Act spells out its own time-frame whereafter such declaration
cannot be made subject to the provisions of Section 126(4).
The unamended provisions of Section 127 of the State Act though refer to the
acquisition under the Land Acquisition Act but without making any reference to the time-frame prescribed under the said Act. In this section also,
the specific time-frame and the consequences of default thereof have
been stated. Sections 128 and 129 of the MRTP Act relate to acquiring
land for the purpose other than for which it is designated in any plan or
scheme and taking of possession of land in cases of urgency respectively.
138. The provisions relating to planned development of the State or any
part thereof, read in conjunction with the object of the Act, show that different time-frames are required for initiation, finalisation and complete
execution of such development plans.
The period of 10 years stated in
Section 127 of the MRTP Act, therefore, cannot be said to be arbitrary or
unreasonable ex facie. If the provisions of Section 11-A of the Land Acquisition Act, with its serious consequence of lapsing of entire acquisition
proceedings, are bodily lifted and read into the provisions of the MRTP
Act, it is bound to frustrate the entire scheme and render it ineffective and
uncertain. Keeping in view the consequence of Section 11-A of the Central Act, every development plan could stand frustrated only for the reason
that period of two years has lapsed and it will tantamount to putting an
end to the entire development process.”
(emphasis supplied)
24. In our view, the observations contained in paragraph 133 of Girnar
Traders (III) unequivocally support the majority judgment in Girnar
Traders (II).
25. As a sequel to the above discussion, we hold that the majority
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judgment in Girnar Traders (II) lays down correct law and does not
require reconsideration by a larger Bench. We further hold that the orders
impugned in these appeals are legally correct and do not call for
interference by this Court. The appeals are accordingly dismissed.
……..…..………………..J.
[G.S. Singhvi]
……..…..………………..J.
[H.L. Gokhale]
New Delhi, ……..….
………………..J.
April 1, 2013. [Ranjana Prakash Desai]
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