Kolhapur Municipal Corporation vs Vasant Mahadev Patil (Dead) Through L.R.s
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 510 OF 2022
The Kolhapur Municipal Corporation & Ors. ...Appellant(s)
Versus
Vasant Mahadev Patil (Dead)
Through L.R.s & Ors. ...Respondent(s)
WITH
CIVIL APPEAL NO. 511 OF 2022
The Kolhapur Municipal Corporation & Ors. ...Appellant(s)
Versus
Vasant Mahadev Patil (Dead)
Through L.R.s & Ors. ...Respondent(s)
J U D G M E N T
M.R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 13.08.2018 passed by the High Court of Judicature at
Bombay in Writ Petition No.5310 of 2018 by which the Division Bench of
the High Court has allowed the said writ petition preferred by the private
respondents herein – original writ petitioners and has issued the writ of
Mandamus directing the appellants – Kolhapur Municipal Corporation
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and others to acquire the land in question and to issue a declaration
under Section 19 of the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter
referred to as “Act of 2013”), Kolhapur Municipal Corporation and others
have preferred the present Civil Appeal No. 510 of 2022.
1.1 In the aforesaid Writ Petition No.5310 of 2018 after the judgment
was delivered on 13.08.2018, the Kolhapur Municipal Corporation
preferred one further Civil Application No.2461 of 2018 in Writ Petition
No. 5310 of 2018 for appropriate order directing the original writ
petitioners to accept the TDR in lieu of monetary compensation, which
has been rejected by the High Court by order dated 10.12.2018. The
same is the subject matter of the present Civil Appeal No.511 of 2022
preferred by the Kolhapur Municipal Corporation.
2. The facts leading to the present appeal in a nutshell are as under:-
2.1 The dispute is with respect to the land bearing R. S. No. 138,
ad-measuring 3 Hectors and 65 Ares, situated at E ward, Near New
Palace, Kolhapur owned by the original writ petitioners. The
development plan for the City of Kolhapur was sanctioned on
18.12.1999. Different portions of the land in question were reserved in
the sanctioned development plan for various public purposes namely,
parking, garden, extension of sewage treatment plant etc. That as the
land in question was not acquired and/or used for the public purposes for
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which the same was reserved under the sanctioned development plan,
the original writ petitioners – landowners served a notice under Section
127 of the Maharashtra Regional and Town Planning Act, 1966
(hereinafter referred to as the “MRTP Act”) on 02.01.2012.
2.2 By Resolution dated 18.02.2012, the General Body of the
Municipal Corporation resolved to acquire the said property and
accordingly on 17.04.2012, a proposal was submitted by the Municipal
Corporation to the State Government for compulsory acquisition of the
subject property. The District Collector passed an order dated
07/09.07.2012 directing that the proposal for acquisition be transferred
to the Special Land Acquisition Officer (11), Kolhapur for necessary
action. By the said order, the Corporation was directed to deposit 25%
of the amount before publication of the notification under Section 4 of the
Land Acquisition Act, 1894 (hereinafter referred to as “Act of 1894”), 25%
of estimated compensation amount before the publication of a
declaration under Section 6 of the Act of 1894 and remaining 50% of the
estimated compensation amount before the declaration of award under
Section 11 of the Act of 1894.
2.3 That on enactment of the Act of 2013, the Land Acquisition Act,
1894 came to be repealed. Therefore, the land in question was
subjected to the provisions of the Act of 2013. The Special Land
Acquisition Officer directed the Corporation to deposit the amount of
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Rs.77,65,12,000/- towards compensation vide its letter dated 06.10.2015
in order to issue necessary orders as per Section 19 of the Act of 2013.
It appears that the Corporation was not in a financial position to pay
such a huge compensation amount and so by letter dated 17.03.2016
requested the original writ petitioners – landowners to accept the
Transferable Development Rights (TDR) in lieu of compensation amount
as per the Development Control Rules of the Corporation. The original
writ petitioners also at the relevant time accepted the said proposal and
submitted an application dated 12.05.2017 for grant of TDR. In the
meantime, the Special Land Acquisition Officer by its letter dated
22.09.2016 informed the Municipal Corporation to deposit 30% of the
total amount of compensation and also informed that the land under
reservation fell within the flood affected area due to its proximity to
'Jayanti Nala’ and considering the valuation of the said area as per the
market value of 2016-l7(A.S.R.), the amount of compensation was
reduced from Rs. 77,65,12,000/- to Rs. 43,41,29,400/-.
2.4 It appears that there was some correspondence between the
original writ petitioners and the Corporation with respect to the TDR
proposal. According to the Corporation, the grant of TDR was always
subject to the provisions of the Development Control Rules and further
subject to satisfying the conditions mentioned in the said Rules.
According to the Municipal Corporation as per the Development Control
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Rules, any owner before the grant of TDR will have to surrender the land
under reservation by carrying out necessary developments according to
prevailing Byelaws at his own cost and free of encumbrances.
According to the Corporation, the reserved area was 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. According to the
Corporation, the reserved land/area is flood affected and a rivulet named
‘Jayanti Nala’ passes through the said area under reservation.
Therefore, as per the Corporation, before the TDR proposal could be
considered, it was necessary to carry out the required development work
upon the said reserved land for making it suitable for the public purpose
as per the reservation, to be carried out by the original writ petitioners –
landowners. According to the Corporation, if the said developments are
not done, the land under reservation will not be able to be utilized for the
purpose for which it is reserved. There were various correspondences
between the parties. However, thereafter the writ petitioners did not
agree to avail of the TDR and the original writ petitioners – landowners
filed present writ petition before the High Court and prayed for the
following reliefs:-
a. Rule be issued and records and proceedings be
called for;
b. That this Hon'ble Court may be pleased to issue writ
of mandamus and/ or any other appropriate writ,
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order or direction in the nature of writ of mandamus
thereby directing the Respondent No. 1 and 2 to
forthwith publish a final notification under sub
section (2) and (4) of the Sec. 126 of the M.R.T.P.
Act read with Sec. 19 of the Right to Fair
Compensation and Transparency in Land
Acquisition, Rehabilitation, and Resettlement Act;
2013;
c. That this Hon'ble Court may be pleased to issue writ
of mandamus and/or any other appropriate writ,
order or direction in the nature of writ of mandamus
thereby directing the Respondent No. 3 Corporation
to forthwith deposit the amount of compensation i.e.
Rs. 77,64,12000/- with the Respondent No. 2 and 7
and further the Respondent No. 2 and 7 may be
directed to forthwith release the said amount of
compensation to the Petitioners;
d. Such further and other order be made as this
Hon'ble Court may deem fit and proper in the
interest of justice and in the facts and
circumstances of the case.
2.5 The said petition was vehemently opposed by the Municipal
Corporation. An affidavit in reply opposing the writ petition was filed on
behalf of the original respondent No.6 – Municipal Corporation and
others. It was vehemently submitted that the reservation has lapsed in
view of Section 127 of the MRTP Act. It was also submitted that it is not
possible for the Corporation to acquire the land on payment of huge sum
of Rs.43,41,29,400/-. It was submitted that it was beyond the financial
capacity of the Corporation to pay such a huge compensation and it was
beyond their budgetary provision and had grave financial implication. It
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was also pointed out that even the TDR proposal had not been
materialized as the original writ petitioners were not agreeable to fulfill
their obligations for grant of TDR as per Development Control Rules. It
was also specifically pointed out that unless there is development carried
out at the cost of the original writ petitioners – landowners, it is not
possible for the Corporation to use the land for the purpose for which it is
reserved. It was specifically pointed out that the land in question is a wet
land and that the area is flood affected and a rivulet named ‘Jayanti
Nala’ passes through the said area under reservation. It was also
specifically pointed out that the reserved area is coming within the High
Flood Line and every year for a period of fifteen days to one month the
said area gets flooded during the rainy season. Therefore, it was
pointed out that it was necessary to carry out the required development
work upon the said reserved area for making it suitable for the purposes
as per reservation. It was also pointed out that if the said developments
are not done, the land under reservation shall not be able to be utilized
for the purposes it is reserved.
2.6 Before the High Court, the original writ petitioners tendered
affidavits dated 01.08.2018 and 07.08.2018 recording that they do not
wish to avail of TDR (as observed by the High Court in paragraph No.5).
Thereafter by the impugned judgment and order, the High Court has
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disposed of the writ petition and issued the following directions in
exercise of powers under Article 226 of the Constitution of India:-
(i) We direct the Special Land Acquisition Officer (11),
Kolhapur to communicate to the third respondent -
Municipal Corporation the amount which is required
to be deposited by the said Municipal Corporation
as a condition precedent for issuing a declaration
under Section 19 of the said Act of 2013. The
communication demanding the amount shall be
issued by the Special Land Acquisition Officer within
one month from the date on which this judgment
and order is uploaded;
(ii) We may record here that there is no dispute about
the reservation of the subject land in the sanctioned
development plan and therefore, in view of the
proviso to Section 125 of the MRTP Act, the
acquisition under the said Act of 2013 shall
commence from the stage of declaration under
section 19 thereof;
(iii) Within a period of two months from the demand for
payment made by the Special Land Acquisition
Officer as aforesaid, the third respondent shall
deposit the requisite amount with the
Collector/Special Land Acquisition Officer;
(iv) Within a period of one month from the date of
deposit of the requisite amount by the third
respondent, a declaration under Section 19 of the
said Act of 2013 shall be issued/published in
accordance with law;
(v) The acquisition proceedings shall be completed and
compensation shall be paid as expeditiously as
possible in accordance with law and in any case
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within a period of one year from the date on which
the declaration under Section 19 of the said Act of
2013 is published;
(vi) Writ petition is disposed of with the above
directions;
(vii) For reporting compliance with the above directions
by the third respondent the petition shall be listed
under the caption of directions on 26th November
2018.
2.7 While issuing the aforesaid directions, the High Court has
observed that as there was already a resolution passed by the General
Body of the Municipal Corporation to acquire the subject lands by taking
recourse to law of compulsory acquisition, therefore, there is no option
for the Municipal Corporation but to acquire the said land by taking
recourse to the Act of 2013.
2.8 Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 13.08.2018 passed by the High court of Judicature at
Bombay in Writ Petition No.5310 of 2018, the Kolhapur Municipal
Corporation and others have preferred the present Civil Appeal No.510
of 2022.
2.9 It appears that after the impugned judgment and order dated
13.08.2018 passed by the High Court and after the above directions
were issued, the appellants – Kolhapur Municipal Corporation and others
filed one Civil Application No.2461 of 2018 in Writ Petition No.5310 of
9
2018 for modification of the judgment and order dated 13.08.2018 and
prayed for the direction to the original writ petitioners to accept the TDR
in lieu of monetary compensation. It was also further prayed for directing
that in the event of the failure of the Corporation to deposit the amount,
the consequences under the MRTP Act, 1966 and the Act of 2013
should follow. Both the aforesaid prayers were rejected by the High
Court vide order dated 10.12.2018 by observing that the original writ
petitioners are not consenting to accept the TDR in lieu of monetary
compensation. The order dated 10.12.2018 passed in Civil Application
No.2461 of 2018 in Writ Petition No.5310 of 2018 is the subject matter of
present Civil Appeal No.511 of 2022.
3. Ms. Aparajita Singh, learned Senior Advocate appearing on behalf
of the Corporation has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error
in issuing a writ of Mandamus and directing the Corporation to acquire
the land in question and to pay the compensation to the original
landowners by issuing a declaration under Section 19 of the Act of 2013.
3.1 It is submitted that the High Court has not at all appreciated the
fact that as such in the present case, in view of the provisions of Section
126 r/w Section 127 of the MRTP Act, 1966, the reservation had lapsed.
It is submitted that once by operation of law, the reservation had lapsed,
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no writ of Mandamus could have been issued directing acquisition of the
land for which it was reserved under the development plan.
3.2 It is submitted that in the present case, the subject land was
reserved under the Development Plan in the year 2001 and different
parts of the land were reserved for the purposes of garden, parking and
extension of sewage treatment plant and 12 mtr DP Road. It is
submitted that it is an admitted position that for more than ten years,
neither the land was acquired nor the declaration in relation to it was
published under Section 126(2) or (4) of the MRTP Act. It is submitted
that thereafter the respondents served a notice to the Corporation under
Section 127 of the MRTP Act on 02.01.2012 requesting the Corporation
to acquire the land. It is submitted that however, no steps were taken to
acquire the land and the acquisition proceedings did not commence
even within twelve months from the date of service of such notice. It is
therefore submitted that in view of Section 127 of the MRTP Act, if within
ten years from the date on which the final Development Plan comes into
force and the land reserved is not acquired by agreement nor a
declaration under sub-section (2) or sub-section (4) of Section 126 has
been published in the Official Gazette and thereafter the landowner
serves a notice to the Development Authority to acquire the land, and, if
within twelve months from the date of the service of such notice, neither
the land is acquired nor steps are commenced for its acquisition, the
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reservation shall be deemed to have lapsed. Heavy reliance is placed
on the decision of this Court in the case of Girnar Traders Vs. State of
Maharashtra and Ors., (2007) 7 SCC 555, which has been
subsequently followed in the other decisions of this Court in the case of
Shrirampur Municipal Council, Shrirampur Vs. Satyabhamabai
Bhimaji Dawkher and Ors., (2013) 5 SCC 627 and Chhabildas Vs.
State of Maharashtra and Ors., (2018) 2 SCC 784.
3.3 It is therefore submitted that once the reservation is deemed to
have lapsed, the original landowners cannot insist that still their land be
acquired and they be paid the compensation. In such a situation, even
neither a writ petition would be maintainable at the instance of the
landowners nor a writ of mandamus directing the Corporation to still
acquire the land and pay the compensation can be issued. This is
particularly so when the reservation has lapsed.
3.4 It is further submitted by Ms. Singh, learned Senior Advocate
appearing on behalf of the appellant Corporation that even otherwise in
the facts and circumstances of the case, the High Court ought not to
have directed the Corporation to acquire the land for the purpose for
which it was reserved and to pay the compensation to the original
landowners. It is submitted that the High Court has not at all appreciated
and/or considered the financial position of the Corporation and the
financial constraint faced by the Corporation, if such a huge amount of
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compensation under the provisions of the Act of 2013 is to be paid by
the Corporation. It is submitted that the entire budget of the Corporation
for land acquisition was only Rs.21 crores as against the compensation
amount of Rs.62.5 crores payable in the present case. It is submitted
that therefore it is practically impossible for the Corporation to pay such
a huge amount of compensation for the land which as such is unsuitable
and not useable by the Corporation.
3.5 It is further submitted by the learned senior counsel on behalf of
the Corporation that the High Court has therefore not at all adverted to
the financial inability of the Corporation to acquire the land and the
unsuitability of the land for the public purpose for which it was reserved.
It is submitted that it was specifically pointed out that the land in question
is not at all suitable and/or usable for the purpose for which the same
has been acquired, namely parking, garden etc. It is submitted that it
was specifically pointed out that the subject land is flood affected
through which a rivulet named ‘Jayanti Nala’ passes, making it
unsuitable/unusable for the public purposes for which it was reserved. It
is submitted that therefore the original landowners cannot compel the
Corporation to acquire the land, which as such is unsuitable/unusable
and non-developed land. It is submitted that it was specifically pointed
out before the High Court that the reserved area is coming within High
Flood Line and every year for a period of fifteen days to one month, the
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said area gets flooded during rainy season. It is submitted that it was
pointed out that unless and until a major development work is carried out
upon the said reserved land for making it suitable for the public purposes
as per reservation, the landowners cannot still say that the land must be
acquired, which otherwise is not suitable and/or usable. It is submitted
that if such a request of the original landowners is accepted, in that
case, every landowner, whose land is otherwise unsuitable and/or not
usable will see to it that with the connivance of the party in power and/or
the persons in the administration or management of the Corporation to
reserve the land for public purpose and thereafter compel the
Corporation to acquire the land, which otherwise is unsuitable and/or not
usable. It is submitted that the aforesaid aspect has not at all been
considered by the High Court though it was specifically pointed out in the
counter filed on behalf of the Corporation.
3.6 It is further submitted by Ms. Singh, learned Senior Advocate
appearing on behalf of the Corporation that the High Court has directed
the appellant to acquire the land in question for the purposes for which it
was reserved in view of the Resolution passed by the General Body. It
is submitted that the aforesaid finding is just contrary to the law laid
down by this Court in the case of Shrirampur Municipal Council,
Shrirampur (supra). It is submitted that in the aforesaid decision it is
specifically observed and held by this Court that by mere passing of a
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resolution by the Planning Authority or sending a letter to the Collector or
even to the State Government cannot be treated as commencement of
the proceedings for the acquisition of the land under the 1966 Act and/or
1894 Act.
3.7 Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeal and quash and set
aside the impugned judgment and order passed by the High Court.
4. Present appeal is vehemently opposed by Shri C.U. Singh, learned
Senior Advocate appearing on behalf of the respondents – original
landowners.
4.1 It is vehemently submitted by Shri Singh, learned Senior Advocate
appearing on behalf of the original landowners that the appellant
Corporation deserves no relief under Article 136 of the Constitution
because of its conduct in not following a consistent stand before the
High Court and this Court. It is submitted that the Corporation is barred
by the law of estoppel and the doctrine of election from changing its
stand from first agreeing to acquire property, then offering TDR in lieu of
compensation, and finally from refusing to comply with the Hon’ble High
Court’s judgment on incorrect grounds.
4.2 It is submitted that in the present case various parts of the land in
question were reserved for the purposes of parking, playground, garden
and twelve meter wide road and extension of sewage treatment plant. It
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is submitted that the reservation continued for more than ten years. It is
urged that for all these ten years, the landowners were deprived of
developing and/or using their land. It is contended that thereafter after
keeping the land in question under reservation for more than ten years
thereafter it is not open for the Corporation to say that it will not acquire
the land for paucity of the funds. It is submitted that when the land in
question was kept under reservation for more than ten years and the
land was not acquired, the respondents issued a purchase notice dated
02.01.2012 to the Corporation under Section 127 of the MRTP Act for
acquisition of the land. It is submitted that in fact, the General Body of
the Corporation thereafter passed a Resolution dated 18.02.2012
resolving that the land is required to be acquired and granting the
consent by making provision for payment of the compensation in the
budget of the Corporation. It is contended that thus it is clear that the
appellant Corporation possessed sufficient funds to acquire the land and
had a clear intention of acquiring it. It is submitted that even thereafter
the Municipal Commissioner issued a letter dated 22.04.2012 to the
officers of the State requesting initiation of acquisition proceedings under
the relevant statutes. Pursuant to this, the Special Land Acquisition
Officer issued a letter dated 28.10.2015 to the Municipal Commissioner
calling upon him to deposit an amount of Rs.77,64,12,000/- in the PLA
Account of the SLAO’s office. It is submitted that it is at this point that the
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appellant Corporation decided to not acquire the land considering the
amount of money it was directed to pay as compensation. It is submitted
that even thereafter also and despite having agreed to acquire the land
in question, the Corporation issued a letter dated 17.03.2016 calling
upon the landowners to submit a proposal for grant of TDR in lieu of
monetary compensation. It is submitted that the landowners initially
rejected the Corporation’s proposal for TDR by letter dated 17.05.2016
since the TDR offered was not in accordance with the correct rates
prescribed by the concerned DCR that was then in force. It is submitted
that only thereafter and aggrieved by the gross inaction on the part of
the Corporation, the respondents - landowners were compelled to file
writ petition before the High Court being Writ Petition No. 4790 of 2018
praying for similar reliefs as the respondents had sought in the present
matter with respect to the part of the land, which was reserved for
playground. That the Hon’ble High Court allowed the said writ petition
vide order dated 06.08.2018. It is submitted that in the said order, the
High Court also took note of the Corporation’s stand that it needs the
respondents’ land, but it is unable to purchase it only due to its financial
constraints. It is submitted that by the said judgment, the High Court also
directed the Corporation to take steps for issuing a declaration under the
MRTP Act and to complete the entire process of acquisition. It is
submitted that thereafter since the Corporation failed to implement the
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High Court’s aforesaid judgment and order dated 06.08.2018, the
respondents – landowners filed a contempt petition and the Corporation
had offered TDR in lieu of compensation, which the respondents had
accepted. It is urged that by the impugned judgment, the High Court has
granted similar reliefs, which were granted in Writ Petition No. 4790 of
2018 and has directed the Corporation to initiate the acquisition
proceedings.
4.3 It is submitted that even before the High Court, the Corporation
filed a Civil Application No. 2461 of 2018, willing to offer TDR in lieu of
compensation to be paid for the acquisition of the reserved land. Thus, it
is not open for the Corporation to take a contrary stand and even oppose
the TDR in lieu of compensation for acquisition of the land under
reservation, which the landowners are ready to accept. It is contended
that the landowners are entitled to the TDR in lieu of compensation
amount as per the DCR.
4.4 It is submitted by Shri C.U. Singh, learned Senior Advocate
appearing on behalf of the landowners that as the Corporation has
changed its stand from time to time before the Hon’ble High Court as
well as before this Court by not agreeing to acquire the land in question
and not willing to offer TDR in lieu of compensation amount, the
Corporation cannot be permitted to approbate and reprobate. Reliance
is placed on the decisions of this Court in the case of Mumbai
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International Airport Private Limited Vs. Golden Chariot Airport &
Anr., (2010) 10 SCC 422 as well as Joint Action Committee of Air
Line Pilots’ Association of India (ALPAI) and Ors. Vs. Director
General of Civil Aviation and Ors., (2011) 5 SCC 435 and Karam
Kapahi and Ors. Vs. Lal Chand Public Charitable Trust and Anr.,
(2010) 4 SCC 753.
4.5 It is submitted that in the aforesaid decisions, this Hon’ble Court
had explained the common law doctrine of approbation and reprobation
as a facet of the law of estoppel. It is contended that therefore the
appellant Corporation is also bound by the same doctrine of approbation
and reprobation, which acts as an estoppel against its decision to deny
TDR to the respondents - landowners after having previously offered it
on its own accord.
4.6 It is further submitted by Shri C.U. Singh, learned Senior Advocate
appearing on behalf of the original landowners that in the facts and
circumstances of the case, it cannot be said that the reservation of the
land in question has lapsed. It is submitted that on lapsing of the
reservation, a notification was required to be issued by an order
publishing in the Official Gazette as per Section 127(2) of the MRTP Act.
That in the present case since that was not done, the reservation in
respect of landowners cannot be said to have lapsed. It is submitted
that therefore the Corporation cannot now take the stand of lapse before
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this Hon’ble Court at this stage of proceedings, especially since it did not
take this stand before the High Court.
4.7 It is further submitted by Shri C.U. Singh, learned Senior Advocate
appearing on behalf of the landowners that even otherwise considering
the relevant provisions of the MRTP Act, more particularly, Section 22
read with Section 31(5), the Corporation is bound to make provision in
the Development Plan for parking, garden, which are public purposes. It
is submitted that it is the duty cast upon the Corporation to make
necessary provisions for public purposes in the Development Plan. It is
submitted that if the stand on behalf of the Corporation in the present
case is accepted, in that case, there shall not be any garden, parking
etc., which are public purposes and it can be said that the Corporation
has failed to fulfill its obligations under the MRTP Act. Reliance is placed
upon the decision of this Court in the case of Municipal Corporation of
Greater Mumbai and Ors. Vs. Hiraman Sitaram Deorukhar and Ors.,
(2019) 14 SCC 411.
4.8 It is further submitted by Shri C.U. Singh, learned Senior Advocate
appearing on behalf of the landowners that in the present case, the
Corporation has already granted TDR to the present respondents in
accordance with Clause 11.2.4 of the Unified DCPR, 2020 for acquiring
the portion of the land reserved for the playground. It is submitted that
as per Clause 11.2.4(a), the TDR for a non-congested area is 1:2.
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However, the quantum of TDR is reduced to 1:1.85 in case levelling of
land and construction/erection of a compound wall/fencing to the land
under surrender is not desirable considering the total area of reservation.
It is submitted that the respondents are unable to undertake such
construction/erection work in respect of their land. It is submitted that
therefore the Corporation offered TDR in the ratio of 1:1.85 instead of
1:2. It is submitted that in other words, the respondents are effectively
ready and willing to accept the TDR in lieu of compensation despite
suffering a higher cut. It is urged that the respondents are still ready to
accept the TDR in lieu of the compensation amount for the reserved land
to be acquired.
4.9 Making the above submissions, it is prayed to dismiss the present
appeals and confirm the impugned judgment and order passed by the
High Court.
5. Heard the learned counsel for the respective parties at length.
6. The short question which is posed for the consideration of this
Court is:
Whether a writ of Mandamus can be issued by the High Court in
exercise of powers under Article 226 of the Constitution of India
directing the authority/Municipal Corporation to acquire the land
reserved for a particular purpose and to pay the compensation to
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the original landowners despite the fact that the reservation is
deemed to have lapsed in view of the statutory provisions and that
the land which is directed to be acquired and for which the
compensation is directed to be paid to the original landowners is
unsuitable and unusable for the purposes for which it is reserved?
7. In the present case, the respondents herein – original landowners
filed a writ petition before the High Court and prayed for the following
reliefs:-
a. Rule be issued and records and proceedings be called
for;
b. That this Hon'ble Court may be pleased to issue writ of
mandamus and/ or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby
directing the Respondent No. 1 and 2 to forthwith
publish a final notification under sub section (2) and (4)
of the Sec. 126 of the M.R.T.P. Act read with Sec. 19 of
the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation, and Resettlement Act;
2013;
c. That this Hon'ble Court may be pleased to issue writ of
mandamus and/or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby
directing the Respondent No. 3 Corporation to
forthwith deposit the amount of compensation i.e. Rs.
77,64,12000/- with the Respondent No. 2 and 7 and
further the Respondent No. 2 and 7 may be directed to
forthwith release the said amount of compensation to
the Petitioners;
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d. Such further and other order be made as this Hon'ble
Court may deem fit and proper in the interest of justice
and in the facts and circumstances of the case.
8. The writ petition and the aforesaid prayers were vehemently
opposed by the appellant – Corporation inter alia submitting (i) that the
Corporation is not in a position to pay the compensation and it is beyond
their budgetary provisions; (ii) that the reservation under the MRTP Act
has lapsed in view of Section 126 r/w Section 127 of the MRTP Act; and
(iii) that the land sought to be directed to be acquired and for which
compensation is to be paid is unsuitable and unusable for the purposes
for which the land has been reserved namely parking, garden etc.
However, by the impugned judgment and order and without adverting to
the relevant facts and circumstances of the case, the High Court has
directed the Corporation to issue a declaration under Section 19 of the
Act of 2013 and to pay the compensation to the original landowners.
Virtually, the High Court has directed the Municipal Corporation to
acquire the land in question for the purposes for which the same was put
under reservation under the Development Plan.
8.1 From the impugned judgment and order passed by the High Court,
it appears that the High Court has issued a writ of Mandamus and has
directed the Corporation to acquire the land for the purposes for which it
was reserved under the Development Plan mainly on the ground that the
General Body of the Corporation had passed a Resolution to acquire the
23
land and by further observing that as the General Body of the
Corporation had passed a Resolution to acquire the land as the same is
required by the Corporation for public purposes namely parking, garden
etc. Therefore, and as observed hereinabove, the question which is
posed for the consideration of this Court is, whether the High Court was
justified in issuing the writ of Mandamus directing the Corporation to
acquire the land for the purposes for which it was reserved under the
Development Plan.
9. While considering the issue/issues involved, the scheme of the
MRTP Act, more particularly, with respect to the Development Plan is
required to be referred to and considered.
9.1 Chapter III of the MRTP Act deals with Development Plan. As per
Section 21 of the Act as soon as may be after the commencement of the
Act, but not later than three years from such commencement, and
subject to the provisions of the Act, 1966, every Planning Authority shall
carry out a survey, prepare an existing land-use map and prepare a draft
Development plan for the area within its jurisdiction, in accordance with
the provisions of a Regional plan, where there is such a plan. As per
sub-section (2) of Section 21, every Planning Authority constituted shall
declare its intention to prepare a draft Development plan, prepare such
plan and publish a notice of such preparation in the Official Gazette and
in such other manner as may be prescribed and submit the draft
24
Development plan to the State Government for sanction. Therefore, it is
the duty cast upon the Planning Authority to prepare a draft
Development Plan; to issue a declaration of intention to prepare the
Development Plan and submit the same to the State Government for
sanction within the period specified or within the extended period as
provided under the Act, 1966. Section 22 of the Act, 1966 provides for
what should be contained in the Development plan. As per Section 22 of
the Act, 1966, in the Development Plan, there shall be provisions for
reservation for public purposes, which include provisions for proposals
for designation of the land for various public purposes. Section 22 reads
as under:-
“22. A Development plan shall generally indicate the
manner in which the use of land in the area of a 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,—
(a) proposals for allocating the use of land for
purposes, such as residential, industrial, commercial,
agricultural, recreational ;
(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 ;
25
(c) proposals for designation of areas for open
spaces, playgrounds, stadia, zoological gardens, green
belts, nature reserves, sanctuaries and dairies ;
(d) transport and communications, such as roads,
high-ways, park-ways, railways, water-ways, canals and
air ports, including their extension and development ;
(e) water supply, drainage, sewerage, sewage
disposal, other public utilities, amenities and services
including electricity and gas ;
(f) reservation of land for community facilities and
services ;
(g) proposals for designation of sites for service
industries, industrial estates and any other development
on an extensive scale ;
(h) preservation, conservation and development of
areas of natural scenary and landscape ;
(i) preservation of features, structures or places of
historical, natural, architectural and scientific interest and
educational value and of heritage buildings and heritage
precincts ;
(j) proposals for flood control and prevention of river
pollution ;
(k) proposals of the Central Government, a State
Government, Planning Authority or public utility
undertaking or any other authority established by law for
designation of land as subject to acquisition for public
purpose or as specified in a Development plan, having
regard to the provisions of section 14 or for development
or for securing use of the land in the manner provided by
or under this Act ;
(l) the filling up or reclamation of low lying, swampy
or unhealthy areas or levelling up of land ;
(m) provisions for permission to be granted for
controlling and regulating the use and development of
26
land within the jurisdiction of a local authority including
imposition of fees, charges and premium, at such rate as
may be fixed by the State Government or the planning
Authority, from time to time, for grant of an additional
Floor Space Index or for the special permissions or for the
use of discretionary powers under the relevant
Development Control Regulations, and also for imposition
of conditions and restrictions in regard to the open space
to be maintained about buildings, the percentage of
building area for a plot, the location, number, size, height,
number of storeys and character of buildings and density
of population allowed in a specified area, the use and
purposes to which buildings or specified areas of land
may or may not be appropriated, the sub-division of plots,
the discontinuance of objectionable users of land in any
area in reasonable periods, parking space and loading
and unloading space for any building and the sizes of
projections and advertisement signs and boardings and
other matters as may be considered necessary for
carrying out the objects of this Act.”
9.2 Therefore, while preparing the draft Development
Plan/Development Plan, the Corporation has to make provisions for
various public purposes enumerated under Section 22 of the Act, 1966.
It is to be noted that while preparing a draft Development
Plan/Development Plan, every Planning Authority shall have to carry out
a survey and prepare an existing land-use map. Thereafter, the
Planning Authority and the State Government are required to follow the
procedure as mandated under the Act, 1966. While preparing the
Development Plan, the Planning Authority may also designate (popularly
known as ‘keep the land under reservation’) any land for purposes
specified in Clauses (b) and (c) of the Section 22. Sub-section (5) of
27
Section 31 provides 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 purpose in the Development
Plan, unless it is satisfied that the Planning Authority will be able to
acquire such land by private agreement or compulsory acquisition not
later than ten years from the date on which the Development plan comes
into operation.
9.3 Therefore, and as observed hereinabove while preparing a draft
Development Plan, the Planning Authority and/or its officer(s) appointed
shall have to carry out the survey and prepare an existing land-use map.
Therefore, while preparing a Development Plan and while designating a
particular land and/or reserving a particular land for public purposes
mentioned in Clauses (b) and (c) of Section 22, the Planning Authority
has to bear in mind and/or take into consideration whether the particular
land, which is earmarked and/or reserved and/or designated for a public
purpose, which will have to be acquired on payment of compensation is
suitable and/or useable or not for the purposes for which it is reserved
for public purposes. It should not lead to a situation where for some
oblique reasons, the Planning Authority keeps a particular land under
reservation and thereafter acquires it and pays the compensation for the
land which is not useable and/or suitable to be used for a particular
28
purpose merely because the same is under reservation. If the same is
permitted, it will amount to a fraud and colourable exercise of power as
then the Authority will pay compensation with respect to land which
otherwise is not usable and/or suitable. Therefore, while preparing the
Development Plan and putting a particular private land under reservation
and/or while designating the private land for a particular public purpose
under the Development Plan, a duty is cast upon the Planning Authority
to make a survey and come to a specific opinion by taking into
consideration all relevant facts that the land which is kept under
reservation and which will have to be acquired on payment of
compensation is suitable and/or usable for the purpose for which it is to
be reserved.
9.4 In the present case, even according to the Corporation, the land in
question is not at all suitable and even usable for the purposes for which
it is reserved, i.e., for public purposes like parking, garden etc., as the
said land is a flood affected and a rivulet named ‘Jayanti Nala’ passes
through the said area under reservation. It was also the case on behalf
of the Corporation before the High Court and even before this Court 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 and that it will be necessary to carry out the required
development work at a huge cost upon the said reserved land for making
29
it suitable for public purposes as per reservation. It was/is the specific
case on behalf of the Corporation that if the said development is not
done, the land under reservation cannot be able to be utilized for the
purposes for which it is reserved. If that be so, we fail to understand
what the reason was for the Planning Authority to designate such a land
for a public purpose and/or to reserve the land in question in the
Development Plan for a public purpose and thereafter to acquire and pay
the compensation if the said land was not at all suitable and/or usable.
9.5 As observed hereinabove, 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
30
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.
10. The next relevant provisions with which we are concerned would
be Sections 126 and 127 of the MRTP Act, 1966. The said provisions
read as under:-
“126. Acquisition of land required for public
purposes specified in plans.-(1) 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 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 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
31
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 absolutely free from all
encumbrances 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 3[if the State Government (except in cases
falling under section 49 4[and except as provided in
section 113A)] itself is of opinion] that any land included 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, 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 subsection (4), no such 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
32
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 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 the
area or areas for comprehensive development,
whichever is earlier, or as the case may be, the
date of publication of the draft Town Planning
Scheme:
Provided that, nothing in this sub-section shall affect
the date for the purpose 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:
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, shall be the market value
prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the
proviso to sub-section (2) and subsection (3), if a
declaration,] is not made, within the period referred to in
sub-section (2) (or having been made, the aforesaid
period expired on the commencement of the Maharashtra
Regional and Town Planning (Amendment) Act, 1993, the
33
State Government may make a fresh declaration for
acquiring the land under the Land Acquisition Act, 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.
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 into force 2[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 effect; and if within twelve
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.
(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.”
10.1 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
34
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
35
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.
10.2 What can be said to be taking “steps” as mentioned in Section 127
of the MRTP Act has been extensively dealt with and considered by this
Court in the case of Girnar Traders (supra), Shrirampur Municipal
Council, Shrirampur (supra) and Chhabildas (supra).
10.3 In the case of Girnar Traders (supra), this Court had occasion to
consider the entire scheme of Sections 126 and 127. Insofar as Section
127 is concerned, this Court has observed and held in paragraphs 31
and 32 as under:-
“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 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
36
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.
32. 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.”
10.4 On emphasizing the word “steps” used in Section 127 of the
MRTP Act, it is observed and held in paragraphs 56 and 57 as under:-
“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
37
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.”
10.5 In Shrirampur Municipal Council, Shrirampur (supra), it was
the case on behalf of the Planning Authority that after the purchase
notice as per Section 127(1) is served and the Planning Authority and/or
the Corporation has passed a resolution to acquire the land and it is
communicated to the State Government, it can be said to be taking
“steps” and therefore in such a situation the reservation cannot be said
to have lapsed. The aforesaid position came to be negated by this Court
38
in the aforesaid decision after considering the judgment of this Court in
the case of Girnar Traders (supra). It is specifically observed and held
that the expression “no steps as aforesaid” used in Section 127 of the
Act, 1966 has to be read in the context of the provisions of the Act of
1894 and now the Act of 2013 and a mere passing of a Resolution by
the Planning Authority or sending a letter to the Collector or even to the
State Government cannot be treated as commencement of the
proceedings for the acquisition of the land under the 1966 Act and/or
1894 Act or now the Act of 2013. It is observed and held that publication
of a declaration under Section 6(2) of the Act of 1894 can be said to be
conclusive evidence that the land is needed for a public purpose and
imply taking active steps for the acquisition of the particular piece of
land. In paragraphs 42 and 43 of the said judgment, it is observed and
held as under:-
“42. We are further of the view that the majority in Girnar
Traders [Girnar Traders v. State of Maharashtra, (2007) 7
SCC 555] 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
39
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
provisions, the State Legislature has ensured that the
landowners/other interested persons, whose land is
utilised 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 300-A of the Constitution.”
10.6 Subsequently, in the case of Chhabildas (supra), it has been
observed and held by this Court after considering the decisions of this
Court in the cases of Girnar Traders (supra) and Shrirampur
Municipal Council, Shrirampur (supra) that if a period of ten years
has elapsed from the date of publication of the plan in question, and no
steps for acquiring the land have been taken, then once a purchase
notice is served under Section 127, steps to acquire the land must follow
40
within a period of one year from the date of service of such notice, or
else the land acquisition proceedings would lapse.
11. Thus, as per the law laid down by this Court in the aforesaid three
decisions, 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. As held above, 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.
11.1 Applying the law laid down by this Court in the aforesaid decisions
to the present case, the first Development Plan under which the original
writ petitioners’ land was reserved for public purposes was in the year
41
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.
12. In the present case, the High Court has 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, in our view,
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.
42
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). Once by operation of law, the reservation is deemed to
have lapsed, it is lapsed for all purposes and for all times to come.
13. Now, so far as the observation made by the High Court that after
the reservation is deemed to have lapsed, it has not been notified in the
Official Gazette as required under Section 127(2) of the MRTP Act is
concerned, we observe that 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 nonissuance 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.
14. Therefore, as such once the reservation with respect to the land in
question was deemed to have lapsed as observed hereinabove, no
further writ of mandamus could have been issued by the High Court to
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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.
15. Even otherwise, 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
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unusable for the public purposes for which it has been reserved. As
observed hereinabove, 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.
16. At this stage, 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,
45
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.
17. Now, the submission on behalf of the original landowners that if the
Corporation is not in a position to pay the compensation, in that case,
they are ready to accept the TDR in lieu of the amount of compensation
shall be considered. At one point of time, the aforesaid proposal was
46
under consideration by the Corporation and the Corporation even moved
a Civil Application before the High Court to direct the landowners to
accept the TDR. Therefore, 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, we observe 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 dated
01.08.2018 and 07.08.2018, as observed and noted by the High Court in
the impugned judgment and order in paragraph 5 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.
17.1 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. Even as per Clause 11.2.2 of the Unified Development
Control and Promotion Regulations, 2020 (UDCPR, 2020) for
47
Maharashtra State under which the TDR is claimed, the compensation in
terms of TDR shall be permissible for:-
“xxxxxxxxxxxx
ii) lands under any deemed reservations according to any
regulations prepared as per the provisions of Maharashtra
Regional & Town Planning Act,1966;
xxxxxxxxxxxx
v) development or construction of the amenity on the
reserved or deemed reserved land;
xxxxxxxxxxxx”
Therefore, it can be argued that there cannot be any TDR in lieu of
compensation to be paid for the reserved land which reservation is
deemed to have lapsed as in the instant case.
17.2 Even Clause 11.2.3 of the above 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, for the reasons stated hereinabove, the prayer of the
respondents to grant them TDR deserves rejection and is hereby
rejected.
18. In view of the above and for the reasons stated above, the present
appeal succeeds. 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
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land in question and to pay the compensation to the respondents –
original landowners as per the provisions of Act of 2013 is hereby
quashed and set aside. Consequently, the original Writ Petition (Writ
Petition No.5310 of 2018) before the High Court filed on behalf of the
original landowners stand dismissed.
Present appeal is allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
Civil Appeal No.511 of 2022
19. In view of the judgment and order passed by this Court in Civil
Appeal No.510 of 2022, the Civil Appeal No. 511 of 2022 stands partly
allowed to the extent of declaring that reservation of the land for the
public purposes for which it was reserved is deemed to have lapsed.
No costs.
………………………………….J.
[M.R. SHAH]
NEW DELHI; ………………………………….J.
FEBRUARY 14, 2022. [B.V. NAGARATHNA]
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Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
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