Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
F
CIVIL APPEAL NO.6661 O 2019
( ARISING OUT OF SLP (C) N O . 7481 OF 2018)
B ALAJI A SSOCIATES …A PPELLANT (S)
THROUGH ITS PARTNERS
V ERSUS
T HE S TATE OF M AHARASTRA AND O RS . …R ESPONDENT (S)
UDGMENT
J
N.V. R AMANA , J.
1. Leave granted.
2. This appeal, by way of special leave, was filed against the
impugned final judgment and order dated 05.02.2018 in
W.P. No. 5969 of 2017, passed by the High Court of
Judicature at Bombay (Nagpur Bench).
3. The brief facts which are necessary for the disposal of
this case are that the appellant is a partnership firm and
its partners are the joint owners of the land in the Survey
No.7 Subdivision No.2, for a land admeasuring 3H 90R
of Mouja Durgavada, Tq.Morshi, District Amravati,
Signature Not Verified
situated in the municipal limits of Nagar Parishad of the
Digitally signed by
SATISH KUMAR YADAV
Date: 2019.08.27
17:34:30 IST
Reason:
city of Morshi [ hereinafter referred to as the “ disputed
1
”]. The final development plan for the city of Morshi
land
was published on 11.07.2005 which came into force from
01.09.2005. In the aforesaid plan the appellant’s land
was reserved for shopping centre and garden, by
reservation no. 22 and 23 respectively.
4. Under Section 127 of Maharashtra Regional and Town
Planning Act, 1966 [ hereinafter referred to as “ ”],
the Act
the owners could dereserve a plot of land by serving a
notice, after the lapse of 10 years from the date of such
reservation i.e., 10 years from 01.09.2005 herein.
5. Accordingly, the appellant served the first notice, under
Section 127 of the Act, on 13.07.2015 asking the
municipality to either acquire the disputed land or
permit them to develop the same in accordance with law.
The aforesaid first notice was replied as being pre
mature. Moreover, the appellant again on 31.08.2015
sent the second notice under Section 127 of the Act. At
the outset we may note that the date of receival of the
second notice is heavily contested, being important we
shall take up the same in due course.
6. Thereafter on 22.09.2015, respondent no. 2 directed
respondent no. 3 to initiate the procedure required for
acquisition of disputed land. On 30.11.2015 there was a
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General Body Meeting of the Municipal Council/Nagar
Parishad, Morshi wherein it was decided that the
disputed land was required for development of
garden/park and necessary acquisition needs to be
undertaken. For our purposes we need to observe the
minutes of the meeting which is as under
As per Section 27 MRTP Act 1966, Survey no.
7 of Mouja Durgavada Tq. Morshi, District
Amravati reserved for Reservation no. 22
Shopping Centre and 23 Garden as per
development Plan (Excluded Plan) of Morshi
City a discussion on the received notice is done
in the standing committee meeting of Nagar
Parishad Morshi.
In this matter, Adv. G.K. Mundhada,
Khaparde Garden issued a notice under
Section 127 of MRTP Act, 1966 which has
inward number 5081 on Dt. 14/07/2015
and Inward no. 57 on Dt. 2/9/2015 in Nagar
Parishad Office inward record register.
…
Finally, in this meeting after discussion it is
decided that the said land is required by the
Nagar Parishad. Hence proposal for land
acquisition is to be presented in front of
Collector Amravati. Also, the expenditure for
said land should be done as per the
th
Government defined guidelines of 13 Finance
th
Commission and 14 Finance commission.
Hence the standing committee is giving
approval in majority for all the expenses to be
incurred in future for acquisition of the said
land.
Resolution approved by Majority.
(Emphasis supplied)
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7. Further on 14.01.2016, respondent no. 3 submitted a
proposal for acquisition of the disputed land before the
respondent no. 4 (Collector), on the basis of the
resolution passed on 30.11.2015. However, respondent
no. 4 informed respondent no. 3 that the aforesaid
proposal was not in order and the same needs to be
resubmitted. A fresh proposal was submitted by
respondent no. 3, by letter dated 16.12.2016. It is
brought to our attention that nothing has proceeded
further and accordingly, acquisition has not taken place
till this point of time.
8. Aggrieved by the fact that appellant was not allowed to
enjoy the benefit of its ownership in the aforesaid
disputed land, appellant through its partners filed a Writ
Petition praying therein for a declaration that the
reservation of their land has lapsed under Section 127 of
the Act and other consequential relief.
9. The High Court by order dated 05.02.2018 dismissed the
impugned writ petition on two major premises. First, the
High Court was of the opinion that the second notice was
sent prematurely thereby the necessary procedures
required under Section 127 of the Act for dereserving
the land were not satisfied. Second, as the second notice
dated 31.08.2015 was not satisfactory, therefore there
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was no need for further elaboration on steps, taken for
acquiring the land, to be followed by the municipality as
required under Section 127 (1) and (2) of the Act.
10. Aggrieved by the aforesaid dismissal, the appellant has
approached this Court.
11. Having observed the facts, we need to briefly notice the
appellant’s contention herein. Appellant contends that
the second notice dated 31.08.2015 was received by the
respondent authorities only on 02.09.2015 and not on
01.09.2015. Appellant rely extensively on the minutes of
the meeting which records the aforesaid fact and claims
that their notice was not premature. Further, the
appellant contends that the concerned authorities have
not taken adequate steps to acquire the aforesaid land in
accordance with the mandate provided under Section
127 of the Act which consequentially entails dereserving
the aforesaid land.
12. On the other hand, the learned counsel for the
respondents contend that on reading of the provisions of
Section 127 (1) of the Act it is clear that, an owner or a
person interested in the land would be entitled to serve a
notice only after completion of the period of 10 years
from the date on which the Final Developmental Plan
5
comes into force. In this case, since the Final
Developmental Plan had come into force on 01.09.2005,
the notice dt. 31.08.2015 is served on the respondent no.
3 before the completion of the stipulated period of 10
years from the date of coming into force of the Final
Developmental Plan. Therefore, they contend that the
High Court has rightly observed the period of 10 years,
as mentioned in the aforesaid provision of Section 127 of
the Act, is finally yet to complete before service of notice
under Section 127 and hence the said notice under
Section 127 issued by the appellant on respondent no. 3
(Municipal Council, Morshi) would be treated as
premature. Also, the respondent no. 3 has submitted a
land acquisition proposal to the respondent no. 4. Hence,
they argue that the High Court has passed order to
safeguard the interest of general public at large and has
thoroughly and judiciously stated that the provision for
lapsing does not become a tool to defeat the very purpose
of the Act.
13. Having heard the arguments, we need to observe Section
127 of the Act, which reads as under
309
127. Lapsing of reservations.- [(1) If any land
reserved, allotted or designated for any purpose
specified in any plan under this Act is not acquired by
agreement within ten years from the date on which a
final Regional plan, or final Development plan comes
6
310
into force [or, if a declaration under sub-section (2) or
(4) of section 126 is not published in the Official Gazette
within such period, the owner or any person interested
in the land may serve notice, alongwith the documents
showing his title or interest in the said land, on the
Planning Authority, the Development authority or, as
the case may be, the Appropriate Authority to that
311
effect; and if within [twenty-four 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.
312
[(2) on lapsing of reservation, allocation or
designation of any land under sub-section (1), the
Government shall notify the same, by an order
published in the Official Gazette.]
309 Section 127 re-numbered as sub-section (1) by Mah.
th
Act No.16 of 2009, dated 25 June, 2009.
310 Substituted for “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
th
months” by Mah. Act No.16 of 2009, dated 25 June,
2009.
311 Substituted for “twelve months” by the
Maharashtra Regional and Town Planning (Third
Amendment) Act, 2015 (Mah. Act No.42 of 2015),
dated 31-12-2015 (w.e.f. 29-08-2015), s.7.
312 Sub-Section (2) added by Mah. Act No.16 of 2009,
th
dated 25 June, 2009.
The statutory provision is clear and categorical. Section
127 (1), mandates that for an owner whose land is
reserved, allotted or designated, in terms of final regional
plan or developmental plan, needs to serve a notice to
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inform the municipality and seek its response concerning
its interest in acquiring the land, if he wants his property
to be dereserved. As provided under the Section, the
time limit to serve such notice accrues from the end date
of stipulated period of ten years. Once such notice is
served, the municipality has 24 months to acquire or
take steps for acquisition of land. If municipality does not
take the required measures in accordance with the
aforesaid provision, then the land would be dereserved
and the owner can develop the same in accordance with
law. Under subsection 2 of Section 127 of the Act, the
Government is required to publish the dereserved plots
in the Official Gazette.
14. It is the contention of the respondents that the second
notice was premature as the notice under Section 127 of
the Act, is required to be served after completion of the
stipulated time. They place their reliance on the
acknowledgment signed by the Municipality, while
receiving the post which records the event of receival as
01.09.2015. While the appellant rely on the Minutes of
the meeting of the General Body, to point the factual
discrepancy, wherein the letter is stated to have been
received only on 02.09.2015.
8
15. In our considered opinion, the writ courts, usually,
should not indulge themselves in such factual findings.
However, this case has been dragged too long and any
further delay would unduly affect the right to enjoy
property and benefits thereof. In any case, this case
turns on the aspect of admission on the part of the
respondents, that the second notice was received on
02.09.2015. There is no gain saying that the respondents
have not denied that their own General Body Meeting
Resolution has accepted that the date of receival was
02.09.2015. In this context we need to accept the same.
We may note that the High Court has ignored the
aforesaid aspect, to rely exclusively on the
acknowledgment. In the aforestated circumstances,
reliance on the acknowledgment would not be safe.
Having come to this understanding, we can conclude
that the second notice can be said to have reached the
Municipality on 02.09.2015, after the expiry of the
stipulated period.
16. Having decided the first aspect, we need to now turn our
attention to a different aspect under Section 127 (1) of
the Act, regarding the satisfaction of the actions
undertaken by the Municipality, to acquire or steps
taken for acquiring, within the stipulated period of 24
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months from the service of notice. We may note that the
aforesaid time period of 24 months under Section 127 of
the Act, given to the municipal authorities, was increased
from 6 months to 12 months by an Amending Act in
2009 (Mah. Act No. 16 of 2009); further, this time period
was increased from 12 months to 24 months in 2015
(Mah. Act No. 42 of 2015 w.e.f 29.08.2015). From the
aforesaid amendments, it can be noted that the
legislative intent was to provide sufficient time for the
Municipalities to acquire the land as per the
Developmental Plan needed for effective town planning.
17. In any case, the respondents herein have admitted that
the fresh proposal was forwarded from the office of
respondent no. 3 on 16.12.2016, and the same is
currently being processed through the Office of Land
Acquisition Officer, Amaravati. From the aforesaid
narration, there is no gain saying that the appellant has
been denied its right to enjoy benefits of its possession by
this protracted litigation. Mere forwarding of the
proposal, would not be sufficient under Section 127 (1) of
the Act, as the concerned provision distinguishes
between ‘step of acquisition of land’ from ‘step for
acquisition of land’.
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18. In this context, we may refer to the case of
Shrirampur
Municipal Council, Shrirampur vs. Satyabhamabai
, 2013 (5) SCC 627 , wherein
Bhimaji Dawkher and Ors.
a three Judge Bench of this Court has observed that
42. We are further of the view that the
1
majority in Girnar Traders (2) 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.
43. 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
. By enacting Sections 125 to 127
the 1894 Act
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 provisions, the
11
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.
1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555
( emphasis supplied )
In line with the observations of this Court, we hold that
the authorities have not taken sufficient steps towards
acquisition in this case. As the 24 months’ time period
stipulated under the law has elapsed, therefore the
necessary procedures under Section 127 (1) of the Act,
stand satisfied for dereserving the disputed land.
19. The respondents have finally argued that the fulfilment of
requirements under Section 127 (1) of the Act does not
automatically dereserve the land, rather it’s a discretion,
12
under subsection 2 of Section 127 of the Act, bestowed
on the Government to choose the land to be dereserved
and publish the same in the Official Gazette. Such
mandatory reading of the subsection 2 of Section 127 of
the Act, would give unfettered power in the hands of the
State to pick and choose. This Court needs to effectively
balance the power of eminent domain and the
constitutional right of property, which mandates a
rational reading of the law, wherein the declaration in the
Official Gazette is only consequential and the State needs
to follow, if the conditions under subsection 127 (1)
stands satisfied. The usage of ‘ On lapsing of reservation,
allocation or designation of any land under subsection (1) ’
in the subsection 2 of Section 127, clearly points
towards the aforesaid interpretation. Moreover, the usage
of ‘shall’, also indicates the imperative nature of the sub
section, which makes the Government duty bound to
publish the same. [ refer
Labour Commr. M. P. v.
, AIR 1964 SC 1687]
Burhanpur Tapti Mill Ltd. & Ors.
In this case, we are of the opinion that the requirement
under Section 127 (1) are fully satisfied.
20. Our attention has been drawn to certain adverse remarks
passed by the High Court against the advocate, who
appeared before it for the appellant herein, as contained
13
in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the
impugned judgment. In our considered opinion, such
adverse remarks were uncalled for, unnecessary and
therefore, the same stand expunged from the record.
21. In the light of the aforesaid observations, the inevitable
conclusion is that the reservation of the appellant's land
in question has lapsed and the land has become
available to the appellant to be developed as otherwise
permissible. Appeal, therefore deserves to be allowed and
is accordingly allowed in terms of prayer. The State
Government is directed to notify the lapsing of the
reservation by an order to be published in the Official
Gazette as per the requirements of Section 127(2) of the
Act which shall be done as expeditiously as possible and
preferably within a period of 4 months from today.
22.
Appeal stands allowed in the above said terms. No order
as to costs.
.........................J.
(N.V. RAMANA)
........................J.
(MOHAN M. SHANTANAGOUDAR)
........................J.
(AJAY RASTOGI)
NEW DELHI;
AUGUST 27, 2019.
14