Mohandas and Others vs The State of Maharashtra and Others

03.09.92 – This means, within ten years from 24.08.84, there is action, as contemplated u/s.126(4) – Therefore, any notice which was given u/s.127 may not hold good going by the letter of the law – Further, lapsing of reservation contemplated u/s.127 will occur only if the conditions mentioned therein are fulfilled – This is a case where the reservation under the Plan dtd. 24.08.84, which was the final Development Plan, had not lapsed and it was finally revised u/s.38 – High Court right in finding that the appellant was not entitled to the relief based on lapsing of reservation u/s.127 – Present is not a case for powers u/Art.142 to be exercised – Appellants must wait for a period of ten years u/s.127 from 15.05.12 and then can issue notice contemplated under the Act, unless action is already taken in the meantime – No view expressed on invoking of s.49 – All remedies available to the appellants are left open – Constitution of India – Art.142 – Right to Fair Compensation and Transparency in Land Acquisition Rehabilitation and Settlement Act, 2013.

Maharashtra Regional and Town Planning Act, 1966 – s.38 – Discretion under, of the Planning Authority – If any – Discussed. Maharashtra Regional and Town Planning Act, 1966 – s.126 – Effect of declaration under – Discussed.

Dismissing the appeal, the Court

HELD: 1.1 The right would accrue to the owner under Section 127 of the Act to serve notice thereunder only if a declaration is not published within ten years of the Development Plan under Section 126(4) of the Act, inter alia. The High Court has, undoubtedly, noticed that the final Development Plan came into force on 24.08.1984. It further noticed that there is a declaration or Notification under Section 126(4) of the Act on 03.09.1992. This means, within ten years from 24.08.1984, there is action, as contemplated under Section 126(4) of the Act. Under Section 127 of the Act, therefore, any notice which was given may not hold good going by the letter of the law. In this case, it is clear that the appellants are governed by the Act. There is no dispute that invoking Section 38 of the Act that a revised final Development Plan has come into effect from 15.05.2012. It is undoubtedly true that the reservation under the original Development Plan dated 24.08.1984 would cease to impact the appellants if the notice under Section 127 of the Act was issued on the passage of ten years from 24.08.1984 and, if action under Section 127 of the Act was not taken. It is true that notice dated 09.06.2004 was issued by the predecessor in title of the appellants. This is not a case where there was inaction on the part of the previous owners of the property upon the expiry of ten years from the date of the final Development Plan in 1984. The problem for appellants, however, is the action on the part of the respondent issuing declaration under Section 126(4) of the Act on 03.09.1992. Lapsing of reservation contemplated under Section 127 of the Act will occur only if the conditions mentioned therein are fulfilled. The indispensable conditions is that after the reservation of the land, inter alia, under any Plan, for a period of ten years, the land is not acquired by agreement within that period or proceedings for acquisition under the Act, i.e., declaration under Section 126(4) of the Act, inter alia, is not published within the said period. If either of the two conditions exist, a notice is to be issued setting in motion the process for lapsing reservation. If, before issuance of notice, action is already taken by issuance of notification/declaration by the respondent within ten years of the final Development Plan, it will render the notice ineffective in law. The result is that the High Court was right in finding that the appellant was not entitled to the relief based on lapsing of reservation under Section 127 of the Act. This is a case, therefore, where the Development Plan also stood revised under Section

38 of the Act, bringing in consequences. [Paras 25-26][492-B-H; 493-A]

1.2 Therefore, this is a case where the reservation under the Plan dated 24.08.1984, which was the final Development Plan, had not lapsed and it was finally revised under Section 38 of the Act. It is not in dispute that the property of the appellants had been reserved originally for the purpose of shopping complex, and under the revised Development of 2012, for shopping complex and vegetable market. Proceeding on the basis of the contention of the appellant that since the revised Development Plan was issued more than 20 years from the issuance of the initial final Development Plan on 24.08.1984, and therefore, revised Plan issued on 24.09.2007, is not to have effect even then the original Development Plan issued on 24.08.1984 would continue to hold good. There is no dispute that reservation under both the Plans in respect of the appellants properties are the same. In such circumstances, there can be no merit in the contention. [Paras 27, 29][493-B-E]

1.3 What is contemplated under Section 38 is that the Planning Authority may at least once in 20 years from the date on which a Development Plan has come into operation, inter alia, (the period of 20 years been calculated from the date on which, it came into operation) revise the Development Plan. The provisions of Sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 were to apply in this regard. The final Development Plan in this case came into force on 24.08.1984. The draft Revised Plan was issued on 24.09.2007 and the final revised Development Plan was issued with effect from 15.05.2012. The further provision in Section 38 of the Act is that if the Government directs the revision of the Plan, the Planning Authority shall revise the Plan. It may be at any time. In other words, the scheme would appear to be that even before the completion of 20 years, it is open to the Government to direct the Planning Authority to undertake the revision of an existing Development Plan. In such a case, the word used is shall and there is no discretion and the Planning Authority is to revise the Plan. State Government can issue the direction at any time without waiting for the period of 20 years. As far as the Planning Authority undertaking revision on its own, it is discretionary. As regards the time limit being breached, in the facts of this case, the Court is unable to agree. It is not stipulated in Section 38 of the Act that the revision must be undertaken and finalized immediately before the expiry of 20 years from the date of the original final Development Plan. A period of

20 years is to run out from original Development Plan in a case where the Planning Authority wishes to exercise power of revision of the Plan. That is not the same thing as saying that the revised Plan is to be brought into force before the expiry of 20 years. In this case, it is also not clear whether the Planning Authority undertook the revision following the direction of the Government. [Para 31][494-A-F]

1.4 In this case, the declaration has been issued under Section 126(4) of the Act on 03.09.1992. The effect of the declaration under Section 126(4) is that the value of the land was to be determined with reference to the date of the declaration. If declaration is made under Section 126(2) of the Act, the valuation is pushed back to the date of the draft Development Plan. What is actually contemplated would appear to be that after the declaration under Section 126(4), the matter must be followed up with reasonable dispatch. In other words, under the law relating to land acquisition, further steps will be taken culminating in an Award. In this case, on the other hand it is not in dispute that no steps were taken for acquiring the land for more than two decades. It is in the meantime that the revised Development Plan has come into being on 15.05.2012. Since no declaration has been made under Section 126(2) of the Act under the revised Plan and the period has run out as contemplated in the proviso to Section 126(2), the only way out for the respondent would be to bring out a declaration under Section 126(4) of the Act. In such an eventuality, the value of the properties would have to be determined with reference to the date of such declaration under Section 126(4) of the Act. Therefore, if the property of the appellants is to be acquired, the appellants would have to be given the value of the property as on the date on which any such declaration is made under Section 126(4) of the Act within ten years from 15.05.2012. [Para 32][494-G-H; 495-A-C]

1.5 In letters dated 6/7.04.2005 issued by the Municipal Council, it is stated by the Chief Executive Officer that in the Resolution dated 15.02.2005, the land reserved no. 137 for shopping complex in Khasra Nos. 406, 407, 410 and 411, total land measuring 4928 square meters in village Gondia shall not be purchased. Resolution dated 15.02.2005 also appears to suggest that the reservation under Section 127 of the Act is released. The appellants would appear to contend that this should by itself cannot decide the matter. As to whether there is a lapsing of reservation under Section 127 of the Act, would be a matter to be decided in terms of the said Statute. Also, after the Resolution in the revised Plan, the reservation is reiterated. On 24.08.1984, the final Development Plan is published. On 03.09.1992, the declaration under Section 126(4) of the Act was published. After expiry of ten years from 24.08.1984, notice was given by the previous owners on 09.06.2004. Thereafter, draft revised draft Plan publication was made on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development Plan was published. Although, under the original final Development Plan dated 24.08.1984, the property of the appellants was reserved for shopping complex, and under the revised final Development Plan dated 15.05.2012, the appellants lands have been subjected to the reservation that it is meant for use as shopping complex and vegetable market, apart from issuing the declaration, under Section 126(4) of the Act in the year 1992, there is no declaration issued under the revised Plan dated 15.05.2015. While, it is true that the original final Development Plan came into force on 24.08.1984 and the revised Development Plan came into force in the year 2012, one crucial fact cannot be overlooked. Admittedly, the appellants purchased lands from the erstwhile owners only on 02.01.2006. Therefore, on the facts, particularly, having regard to the fact that they have purchased the property apparently knowing that the property was subjected to reservation, and as also it is found that their case, based on the notice of previous owners, would not hold good in law and as the subsequent revision of the Plan has come into force with effect from 15.05.2012, the Court does not find that this is a case where it should exercise its powers under Article 142 of the Constitution. Appellants cannot be compared with the appellant in Hasmukhrai V. Mehta as the appellant therein was a person who was favoured with a permission to develop his land on the basis that the land was meant for residential purpose and it was he who went to court and the lapse of twenty years was in the context found to have a deep impact. [Paras 35-37][496-D-H; 497-A-D]

Hasmukhrai V. Mehta v. State of Maharashtra and others (2015) 3 SCC 154 : [2014] 11 SCR 377 –

distinguished.

Prafulla C. Dave and others v. Municipal Commissioner and others (2015) 11 SCC 90 : [2014] 13 SCR 1397 – relied on.

Bhavnagar University v. Palitana Sugar Mill (P) Ltd. And others (2003) 2 SCC 111 : [2002] 4 Suppl. SCR 517; Chhabildas v. State of Maharashtra and others (2018) 2 SCC 784 : [2018] 1 SCR 411; Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants’ Association and others (1998) Supp. SCC 55 : 1988 SCR 21; Girnar Traders v. State of Maharashtra and others [Girnar 2] (2007) 7 SCC 555 : [2007] 9 SCR 383; Girnar Traders (3) v. State of Maharashtra [Girnar 3] (2011) 3 SCC 1 : [2011] 3 SCR 1;

Shrirampur Municipal Council v. Satyabhamabai

Bhimaji Dawkher (2013) 5 SCC 627 : [2013] 2 SCR 664; T. Vijayalakshmi and others v. Town Planning Member and another (2006) 8 SCC 502 : [2006] 7 Suppl. SCR 534 – referred to.