The Kolhapur Municipal Corporation & Ors. vs Vasant Mahadev Patil (Dead) through L.R.S & Ors.

HELD: 1. 1 At the time of preparing the Development Plan and keeping a particular land reserved for a particular public purpose, an important duty is cast upon the Planning Authority to first satisfy that the land reserved which thereafter has to be acquired on payment of compensation is very much suitable and usable for that public purpose. In the instant case, how the area, which is a flood affected area and through which a rivulet named ‘Jayanti Nala’ passes can be kept under reservation for a particular public purpose and can be used for public purposes like parking and/or for widening of the road etc.? Therefore, while preparing the Development Plan and reserving and/or designating a particular land for a particular public purpose, great care and caution is to be exercised by the Planning Authority. As per Section

125 of the Act, any land required, reserved or designated in a Development plan or Town Planning Scheme for a public purpose or purposes including plans for any area of comprehensive development or for any new town shall be deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act, 1894. Hence, all the parameters concerning the suitability of the land for the particular public purpose for which the land is to be reserved and acquired for utilization must be borne in mind as a factor of paramount importance. [Para 9.5][385A-D]

1.2. Section 126 of the MRTP Act provides that where 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 MRTP Act at any time, the Planning Authority, Development Authority, or as the case may be, any Appropriate Authority has to acquire the land as provided under Sections 126(1)(a), (b) or (c) by making an application to the State Government for acquiring such land under the Land Acquisition Act, 1894 (now it would be the Act of 2013). On receipt of such application by the Planning Authority/Development Authority to the State Government for acquiring such land under the Land Acquisition Act, 1894, the procedure as contemplated and required under Sections 126(2) to 126(4) shall have to be followed. Section 127 of the MRTP Act further provides that if any land reserved, allotted or designated for any purpose specified in any plan under MRTP Act is not acquired by agreement or otherwise within ten years from the date on which a final Regional Plan, or final Development Plan comes 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 (ten years), the owner or any person interested in the land may serve a notice to the Planning Authority, the Development Authority or, as the case may be, the Appropriate Authority to purchase the land reserved. If within twelve months from the date of the service of such notice, the land is not acquired or no steps 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. Sub–section (2) of Section 127 further provides that on lapsing of the 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. [Para 10.1][388-E-H; 389-A-C]

1.3. If the land reserved under the draft Development Plan/Development Plan is not acquired within a period of ten years form the date of final Development Plan and thereafter after expiry of ten years, the landowners serve a purchase notice and thereafter within a period of one year, no steps are taken to acquire the land, the reservation/allocation is deemed to have lapsed and the land stand released from such reservation/allocation. Declaration under Section 6 of the Act of 1894 can be said to be taking steps as contemplated under Section 127 of the MRTP Act. After the enactment of the Act of 2013, the declaration under Section 6 of the Act of 1894 is now to be read and/or is substituted by declaration under Section 19 of the Act of 2013. Therefore, if within a period of one year from the date of receipt of purchase notice as per Section 127, a declaration under Section 19 of the Act, 2013 is not issued and the land is not acquired, the reservation/allocation under the Development Plan is deemed to have lapsed and the land is released from such reservation/allocation. [Para 11][393-C-F]

1.4. The first Development Plan under which the original writ petitioners’ land was reserved for public purposes was in the year 1976. Thereafter the second amended Development Plan was published on 18.12.1999 and came to be implemented from 01.02.2000, under which also the land of the original writ petitioners was reserved for public purposes. But the same had not been acquired for ten years despite the respondents – original writ petitioners having issued a purchase notice dated 02.01.2012 under Section 127 of the MRTP Act for acquisition of the reserved area. A mere Resolution being passed by the General Body of the Corporation to acquire the land and sending a letter to the Collector to acquire the land, without any further steps being taken under the Land Acquisition Act, namely no declaration under section 6 thereof being issued within a period of one year from the receipt of the said purchase notice, would result in the reservation as deemed to have lapsed. [Para 11.1][393-F-H; 394A-B]

1.5. In the instant case, the High Court issued a writ of Mandamus directing the Corporation to issue a declaration under Section 19 of the Act of 2013 mainly on the ground that the General Body of the Corporation had passed a Resolution dated 18.02.2012 resolving that the land in question is required to be acquired and the same is needed for the purpose for which it has been reserved. However, mere passing of a Resolution and/or making a budgetary provision for payment of the compensation in the budget cannot be said to be taking steps as contemplated under section 127 of the MRTP Act. Therefore, once the reservation of land under the Development Plan is deemed to have lapsed by operation of law and it is released from reservation, no writ of Mandamus could have been issued by the High Court directing the Corporation to still acquire the land and to issue a declaration under Section 19 of the Act of 2013 (as in the meantime, the Land Acquisition Act, 1894 has been repealed and Act of 2013 has been enacted). [Para 12][394-B-E]

1.6. Notification in the Official Gazette is only a consequential act and it has nothing to do with the actual lapsing of reservation by operation of law as the reservation is deemed to have lapsed under Section 127(1). Thereafter issuance of the notification of lapse of the reservation of land is only a procedural act and non-issuance of such a notification in the Official Gazette with respect to lapse of the reservation, allocation or designation would not affect the lapse of the reservation under Section 127(1) of the MRTP Act. [Para 13][394-F-G]

1.7. Once the reservation with respect to the land in question was deemed to have lapsed, no further writ of mandamus could have been issued by the High Court to acquire the land and thereafter pay the compensation to the landowners, as on the lapse of the reservation, the land in question is free from reservation and the landowners can use it as if there is no reservation, however, subject to provisions of the MRTP Act. [Para 14][394-G-H; 395-A]

1.8. In the facts and circumstances of the case, the High Court had erred and/or the High Court was not justified in directing the Municipal Corporation to acquire the land in question and to issue a declaration under Section 19 of the Act of 2013 and to pay compensation under the Act of 2013. It is to be noted that right from the very beginning it was stated in the counter before the High Court that the land in question was not suitable and/or usable for the purposes for which it has been reserved. It was specifically pointed out that the subject land is flood affected through which a rivulet named ‘Jayanti Nala’ passes, making it unsuitable for the public purposes for which it was reserved. It was also specifically pointed out that unless and until the substantial development is carried out, the land in question is not usable at all. It was also specifically pointed out that the reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season. In that view of the matter, the High Court ought not to have directed the Corporation to still acquire the land and pay the compensation to the original landowners though the land in question is unsuitable and unusable for the public purposes for which it has been reserved. As such at the time when the planning was made and the land in question was put under reservation for public purposes, a duty was cast upon the Planning Officer to consider whether the land, which will have to be acquired and for which the compensation is to be paid is really suitable and/or usable for the public purposes for which it is reserved. Otherwise, every landowner will see to it that though his land is not suitable and/or not very valuable, is put under reservation and the same is acquired by the Corporation and/or the Planning Authority and thereafter he is paid the compensation. No Corporation and/or the Planning Authority and/or the Appropriate Authority can be compelled to acquire the land which according to the Corporation/Planning Authority is not suitable and/or usable for the purposes for which it is reserved. Any other interpretation would lead to colourable and fraudulent exercise of power and cause financial burden on the public exchequer. [Para 15][395-A-G]

1.9. It is required to be noted that in fact there was a valid reason for the Corporation not to go ahead with the acquisition. Under the Act of 2013, the Corporation was required to pay a huge sum of Rs. 77,65,12,000/- by way of compensation under the Act of 2013. According to the Corporation, when the entire annual budget for acquisition was Rs.21 crores, it was beyond their financial position and/or budgetary provision to pay such a huge compensation, that too, for the land which is not suitable and/or useable for the purposes for which it has been reserved. It may be true that under the MRTP Act, in the Development Plan, the Planning Authority and/or the Appropriate Authority has to make the provisions for the public purposes mentioned in Clauses (b) and (c) of Section 22 and sub-section (5) of Section

31 of the MRTP Act and that is also desired for an appropriate planning of a city and therefore the financial constraint cannot be the sole consideration to acquire the land for the purposes for which it has been reserved namely public purposes. However, at the same time, when such a huge amount of compensation is to be paid and there would be a heavy financial burden, which as such is beyond the financial capacity of the Corporation, such a financial constraint can be said to be one of the relevant considerations, though not the sole consideration before embarking upon reservation of a particular extent of land for development. Even otherwise, in the facts and circumstances of this case, when land is found to be unsuitable and unusable for the purposes for which it has been reserved, Corporation cannot be compelled to pay a huge compensation for such a useless and unsuitable land. [Para 16][395-G-H; 396-A-E]

1.10. On the principle of approbate and reprobate, it is contended by the landowners that the Corporation cannot now be permitted to deny TDR to the original landowners, the Court observes that first of all, it is required to be noted that the said principle of approbate and reprobate would be equally appliable to the landowners also. Before the High Court, the original landowners specifically filed the affidavits that they do not wish to avail of TDR and their only prayer before the High Court was to acquire the land and to pay them the compensation. Therefore, now it is not open for the respondents – original landowners to pray for the TDR in respect of the land in question. [Para 17][396F-H]

1.11. Even otherwise, a landowner is entitled to TDR in lieu of compensation with respect to the land reserved provided the land to be acquired is suitable and/or usable by the Corporation. Once it is found that the land is not usable and/or suitable for the purposes for which it has been reserved, the Corporation cannot still be compelled and directed to acquire the land and grant TDR in lieu of amount of compensation. Clause

11.2.3 of the Unified Development Control and Promotion Regulations, 2020 Regulations states that it shall not be permissible to grant TDR for existing nallah, river, natural stream, natural pond, tank, water bodies etc. and reservations which are not developable under the provisions of UDCPR, 2020. Therefore, the prayer of the respondents to grant them TDR is rejected. [Para 17.1, 17.2][397-A-C, F-G]

1.12. The impugned judgment and order passed by the High Court directing the appellant Corporation to issue a declaration under Section 19 of the Act of 2013 and consequently to acquire the land in question and to pay the compensation to the respondents-original landowners as per the provisions of Act of 2013 is quashed and set aside. Consequently, the original Writ Petition before the High Court filed on behalf of the original landowners is dismissed. [Para 18]12[397-G-H; 398-A]

1.13. As regards, Civil Appeal No. 511 of 2022 the reservation of the land for the public purposes for which it was reserved is deemed to have lapsed. [Para 19][398-B-C]

Girnar Traders v. State of Maharashtra and Ors. (2007)

7 SCC 555 : [2007] 9 SCR 383; Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji

Dawkher and Ors. (2013) 5 SCC 627 : [2013] 2 SCR 664; Chhabildas v. State of Maharashtra and Ors. (2018) 2 SCC 784 : [2018] 1 SCR 411 – relied on.

Mumbai International Airport Private Limited v. Golden Chariot Airport & Anr. (2010) 10 SCC 422 : [2010] 12 SCR 326; Joint Action Committee of Air Line Pilots’ Association of India (ALPAI) and Ors. v. Director General of Civil Aviation and Ors. (2011) 5 SCC 435 : [2011] 5 SCR 1019; Karam Kapahi and Ors. v. Lal Chand Public Charitable Trust and Anr. (2010) 4 SCC

753 : [2010] 4 SCR 422; Municipal Corporation of Greater Mumbai and Ors. v. Hiraman Sitaram

Deorukhar and Ors. (2019) 14 SCC 411 – referred to.