PRAFULLA C.DAVE Vs MUNICIPAL COMMRS..
Bench: RANJAN GOGOI,R.K. AGRAWAL
Case number: C.A. No.-001999-001999 / 2008
Diary number: 36719 / 2007
Advocates: V. D. KHANNA Vs
J. S. WAD
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1999 OF 2008
PRAFULLA C. DAVE & ORS. ... APPELLANT (S)
VERSUS
MUNICIPAL COMMISSIONER & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The question arising for determination in the present
appeal has been succinctly formulated by the High Court in
the following terms:
“Whether, the plan first prepared and notified under
Section 21 of the Maharashtra Regional and Town Planning
Act, 1966 (‘MRTP Act’) is the final development plan and the
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plan prepared under Section 38 is only a revision of the final
development plan proposed under Section 21 of the MRTP
Act and as such, the notice contemplated under Section
127(2) of the MRTP Act and the period prescribed is from the
publication of the development plan first notified under
Section 21 and not the revised development plan under
Section 38?”
2. To answer the aforesaid question, a brief conspectus of
the statutory framework under the Maharashtra Regional
and Town Planning Act, 1966 (hereinafter referred to as the
‘MRTP Act’) will be necessary.
3. The preamble to the Act suggests that the MRTP Act
was enacted, inter alia, “…….to make better provisions for
the preparation of development plans with a view to
ensuring that town planning schemes are made in a proper
manner and their executions is made effective………..” .
4. Section 2 of the MRTP Act contains the definition
clause. A Development Plan is defined by sub-section (9) of
Section 2 to mean “a plan for the development or re-
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development of the area within the jurisdiction of a Planning
Authority [and includes revision of a development plan and
proposals of a special planning authority for development of
land within its jurisdiction]”.
5. Chapter III, inter alia, deals with preparation,
submission and sanction of development plan. Section 21
provides that not later than three years after
commencement of the Act 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. A publication in the official gazette or in such
other manner as may be prescribed stating that the draft
development plan has been prepared is also contemplated.
The draft development plan is required to be submitted by
the State Government for sanction.
6. Section 22 provides for the contents of the
development plan and is in the following terms :-
“Contents of Development Plan:- A Development plan shall generally indicate the manner in which the use of land in the area of the Planning Authority shall be regulated, and also
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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;
(c) proposals for designation of areas for open spaces, playgrounds, stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies;
(d) transports and communications, such as roads, high-ways, park ways, railways, water-ways, canals and airports, 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;
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(h) preservation, conservation and development of areas of natural scenery and landscape;
(i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value 1[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 land within the jurisdiction of a local authority including imposition of fees, charges and premium, at such rate as may be fixed for conditions and restrictions in regard to 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
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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.”
7. Section 23 which really ought to have preceded the
earlier Sections i.e. Sections 21 and 22 contemplate that a
planning authority, before carrying out a survey and
preparing an existing land-use map, shall by a Resolution
make a declaration of its intention to prepare a development
plan. Such declaration is required to be published in the
official gazette and also in the local newspaper inviting
suggestions or objections from the public within a period of
not less than sixty days from the date of publication in the
official gazette. The appointment of a planning officer to
carry out a survey and prepare an existing land-use map is
provided for by Section 24 of the MRTP Act. Under Section
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25, the planning authority or the officer appointed by it
under Section 24 is required to carry out a survey of the
lands and prepare an existing land-use map within six
months from the date of publication of the intention to
prepare a development plan. Section 26 provides for
preparation of the draft development plan within two years
from the date of notice under Section 23 and publication of
the same in the official gazette calling for objections and
suggestions to be submitted within thirty days from the date
of publication in the gazette. Such objections are required to
be forwarded to a Planning Committee constituted under the
Act for consideration and report. Modifications or changes in
the draft development plan may be made by the planning
authority after receipt of the report of the Planning
Committee which modifications are again required to be
notified in the official gazette for information to the public.
Thereafter under Section 30, the draft development plan
alongwith a list of modifications or changes proposed in the
said draft plan under Section 28(4) is required to be
submitted to the State Government within a period of six
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months. Sanction of the State Government is to be accorded
under Section 31 within six months from the date of receipt
of the draft plan from the planning authority. It would be
significant to note that under sub-section (5) of Section 31 if
a development plan contains any proposal for the
designation of any land for a purpose specified in Section
22(b)(c) (already extracted) and such land does not vest in
the planning authority, the State Government shall not
include such land in a development plan unless it is satisfied
that the planning authority will be able to acquire such land
either by private agreement or by compulsory acquisition
not later than ten years from the date on which the
development plan comes into operation.
8. Section 37 of the MRTP Act provides for modification of
a final development plan of such nature which will not
change the character of the plan. Such modification has to
be preceded by notice in the official gazette inviting
objections and suggestions. Hearing of such objections is
contemplated by Section 37(1) before submission of the
proposal for modification to the State Government for
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sanction. Section 37 also contemplates suo moto
modification by State Government subject to observance of
the same procedure. Under sub-section (2) the State
Government may sanction a modification which is again
required to be published in the official gazette.
9. Section 38 deals with the revision of a final
development plan, already in operation. Such revision is
contemplated on the expiry of 20 years from the date of
coming into operation of a development plan. As the scope,
purport and effect of the provisions contained in Section 38
is the bone of controversy in the present case, the same
may be extracted below.
“38. Revision of Development Plan
At least once in [twenty years] from the date on which a Development plan has come into operation, and where a Development plan is sanctioned in parts, then at least once in [twenty years] from the date on which the last part has come into operation, a Planning Authority may [and shall at any time when so directed by the State Government], revise the Development Plan [(either wholly, or the parts separately)] after carrying out, if necessary, a fresh survey and preparing an existing land-use map of the area within its jurisdiction, and the provisions of sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 shall,
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so far as they can be made applicable, apply in respect of such revision of the Development plan.”
10. Section 38 clearly sets out the point of time at which a
revision of an approved plan already in operation can be
made. Such revision may involve a fresh survey and
preparation of fresh land-use map. Section 38 further makes
it clear that in revision of a development plan the provisions
of Sections 22 to 31 except Section 29, so far as they can be
made applicable, shall apply.
11. The other relevant provisions of the MRTP Act which
would require to be noticed are Sections 126 and 127. Under
Section 126 after publication of a development plan if any
land is required or reserved for any of the public purposes
specified in such plan, the planning authority or any other
appropriate authority may acquire the land, inter alia, by
making an application to the State Government for acquiring
such land under the Land Acquisition Act, 1894. There are
two other modes of acquisition, namely, by agreement and
by allotment of transferable development rights. The same,
however, would not be relevant for the purpose of the
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present case and, therefore, need not be noticed. Acquisition
of land under the Land Acquisition Act, 1894 is to be made
by issuing a declaration in the official gazette in the manner
provided in Section 6 of the Land Acquisition Act, 1894.
Such declaration is required to be made within one year
from the publication of the development plan. However,
sub-section (4) provides that if such a declaration is not
made within a period specified or if the other contingencies
provided for in the said sub-section exist, the State
Government may make a fresh declaration in which event
the market value of the land will be determined as on the
date of the fresh declaration under Section 6 of the Land
Acquisition Act.
12. Section 127 deals with lapsing of reservations and
being at the core of the controversy arising in the present
case, will require to be extracted below-
“Lapsing of reservations:- If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of
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such land under this Act or under the Land Acquisition Act, 1894 (1 of 1894), are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of 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.”
13. Section 127 of the MRTP Act is free from any ambiguity.
If the land reserved, allotted or designated for any purpose
specified in any plan under the Act is not acquired by
agreement within ten years from the date on which the final
regional or development plan had come into force or if
proceedings for the acquisition of such land under the MRTP
Act or under the Land Acquisition Act are not commenced
within the said period of ten years, the owner or any person
interested in the land may serve notice to the concerned
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authority and if within six months from the date of service of
such notice the land is not acquired or no steps are taken for
its acquisition, the reservation, allotment or designation is
deemed to have lapsed and the land is deemed to be
released from such reservation, allotment or designation and
becomes available to the owner.
14. In the present case the land belonging to the appellants
measure about 83 Ares and is situated at village Aundh,
District Pune, Maharashtra. The said land was included in a
development plan of the city of Pune notified on 8th July,
1966 and shown to be kept under reservation for a public
purpose i.e. garden. The land was not acquired by resorting
to any of the modes under Section 126 at any point of time
prior to the sanction of a revised development plan dated 5th
January, 1987 which continued the reservation of the land
for the same purpose i.e. garden. The final revised
development plan dated 5th January, 1987 was preceded by
a draft revised plan which was published in the year 1982.
No notice under Section 127 of the MRTP Act was issued by
the owner and any person interested in the land and served
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on any authority under the Act at any point of time prior to
the purchase of the land by the appellants from the original
owners in the year 1989. After such purchase, the appellants
filed Writ Petition No. 5467 of 1989 on 29th August, 1989
before the Bombay High Court for deletion and de-
reservation of the land. Thereafter, the appellants served a
notice dated 5th October, 1989 under Section 127 of the
MRTP Act calling upon the Pune Municipal Corporation to
acquire the land within a period of six months from the date
of receipt of the notice. As no action was taken by the
Municipal Corporation, the appellants submitted a layout
plan to the Corporation on 5th October, 1990 which was
rejected on 29th October, 1990. Against the aforesaid
rejection made by the Corporation, the appellants filed an
appeal under Section 47 of the MRTP Act. In the meantime,
the writ petition i.e. W.P No.5467 of 1989 filed by the
appellants was disposed of with a direction that the appeal
filed by the appellants be expeditiously decided. The said
appeal came to be rejected on 14th July, 2003 on the ground
that notice under Section 127 of the MRTP Act was
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premature as it was issued before the completion of the
period of ten years from the date of the revised development
plan.
15. Assailing the said order passed in the appeal, the writ
petition was filed wherein the issue arising was formulated
by the High Court in the terms already set out. The answer
provided by the High Court in the writ proceeding being
adverse to the appellants, the instant appeal has been filed.
16. We have heard Shri Jayant Bhushan, learned senior
counsel appearing for the appellants and Shri Shekhar
Naphade, learned senior counsel appearing for the
respondents.
17. On behalf of the appellants it is contended that the
period of ten years under Section 126 of the Act has to be
reckoned from the date of coming into force of the initial
final development plan and not the revised development
plan made under Section 38 of the Act. Any other view,
according to the learned counsel, would amount to a
perpetual deprivation of the owner of land which, at the
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same time is also not being put to use for the public purpose
specified in the development plan. Section 127 of the Act, it
is contended, is a beneficial provision in so far as the land
owner is concerned calling for a liberal interpretation of its
effect. Learned counsel has also drawn attention to the
provisions of Section 31(5) of the MRTP Act which
contemplates that in so far as reservation of land for public
purposes specified in sub-section (b) and (c) of Section 21 is
concerned inclusion of such land in the Development Plan
should not be made unless the authority is reasonably
confident of acquiring the land within a period of ten years.
Learned counsel has, therefore, submitted that the
legislative intent was to give the authority under the Act a
maximum of ten years to acquire the land earmarked for a
public purpose or at least to initiate steps for such
acquisition failing which the reservation would lapse.
Reliance has been placed on a decision of this Court in
Bhavnagar University vs. Palitana Sugar Mill (P) Ltd.&
Ors.1 in support of the contentions made by them.
1 2003 (2) SCC 111
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18. In reply, Shri Naphade has submitted that the scheme
of the Act would suggest that a revised plan prepared under
Section 38 tantamounts to a complete development plan
contemplated in Sections 21 to 30 of the Act. The legislative
scheme takes into account that development is a dynamic
process and cannot be frozen by strict prescriptions of time.
Once the final development plan is revised under Section 38
the period of ten years would necessarily run from the date
of coming into force of such revised plan. Any other
interpretation, according to the learned counsel, would
render all provisions of the Act dealing with the revised plan
otiose. Shri Naphade has also argued that in the event a
revised plan under Section 38 is sanctioned and brought into
force the relevant date for determination of compensation
would stand transposed to the fresh dates of the declaration
under Section 6 of the Land Acquisition Act which would
ensure payment of a fair compensation to the land owner.
This is by virtue of Section 126(4) of the Act and, according
to Shri Naphade, is how the balance between public interest
and the interest of the land owner is maintained under the
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provisions of the Act. In so far as the decision in Bhavnagar
University (supra) is concerned, Shri Naphade has
submitted that there are certain provisions of the MRTP Act
which are not embodied in the provisions of the Gujarat Act
that was considered in Bhavnagar University (supra).
Specifically it is pointed out that the provisions similar to
Sections 37, 49 and 50 of the MRTP Act which provide
alternative escape routes to the land owners are absent in
the Gujarat Act. It is on the aforesaid broad basis the
decision in Bhavnagar University (supra) has been sought
to be distinguished.
19. Under Section 127 of the MRTP Act, reservation,
allotment or designation of any land for any public purpose
specified in a development plan is deemed to have lapsed
and such land is deemed to be released only after notice on
the appropriate authority is served calling upon such
authority either to acquire the land by agreement or to
initiate proceedings for acquisition of the land either under
the MRTP Act or under the Land Acquisition Act, 1894 and
the said authority fails to comply with the demand raised
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thereunder. Such notice can be issued by the owner or any
person interested in the land only if the land is not acquired
or provisions for acquisition is not initiated within ten years
from the date on which the final development plan had come
into force. After service of notice by the land owner or the
person interested, a mandatory period of six months has to
elapse within which time the authority can still initiate the
necessary action. Section 127 of the MRTP Act or any other
provision of the said Act does not provide for automatic
lapsing of the acquisition, reservation or designation of the
land included in any development plan on the expiry of ten
years. On the contrary upon expiry of the said period of ten
years, the land owner or the person interested is mandated
by the statute to take certain positive steps i.e. to
issue/serve a notice and there must occur a corresponding
failure on the part of the authority to take requisite steps as
demanded therein in order to bring into effect the
consequences contemplated by Section 127. What would
happen in a situation where the land owner or the person
interested remains silent and in the meantime a revised plan
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under Section 38 comes into effect is not very difficult to
fathom. Obviously, the period of ten years under Section 127
has to get a fresh lease of life of another ten years. To deny
such a result would amount to putting a halt on the
operation of Section 38 and rendering the entire of the
provisions with regard to preparation and publication of the
revised plan otiose and nugatory. To hold that the inactivity
on the part of the authority i.e. failure to acquire the land for
ten years would automatically have the effect of the
reservation etc. lapsing would be contrary to the clearly
evident legislative intent. In this regard it cannot be
overlooked that under Section 38 a revised plan is to be
prepared on the expiry of a period of 20 years from date of
coming into force of the approved plan under Section 31
whereas Section 127 contemplates a period of 10 years with
effect from the same date for the consequences provided for
therein to take effect. The statute, therefore, contemplates
the continuance of a reservation made for a public purpose
in a final development plan beyond a period of ten years.
Such continuance would get interdicted only upon the
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happening of the events contemplated by Section 127 i.e.
giving/service of notice by the land owner to the authority to
acquire the land and the failure of the authority to so act. It
is, therefore, clear that the lapsing of the reservation,
allotment or designation under Section 127 can happen only
on the happening of the contingencies mentioned in the said
section. If the land owner or the person interested himself
remains inactive, the provisions of the Act dealing with the
preparation of revised plan under Section 38 will have full
play. Action on the part of the land owner or the person
interested as required under Section 127 must be anterior in
point of time to the preparation of the revised plan. Delayed
action on the part of the land owner, that is, after the revised
plan has been finalized and published will not invalidate the
reservation, allotment or designation that may have been
made or continued in the revised plan. This, according to us,
would be the correct position in law which has, in fact, been
clarified in Municipal Corporation of Greater Bombay
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vs. Dr. Hakimwadi Tenants’ Association & Ors.2 in the
following terms :
“If there is no such notice by the owner or any person, there is no question of the reservation, allotment or designation of the land under a development plan of having lapsed. It a fortiori follows that in the absence of a valid notice under Section 127, there is no question of the land becoming available to the owner for the purpose of development or otherwise.”
20. In fact the views expressed in Bhavnagar University
(supra) in para 34 is to the same effect:
“The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse.”
21. The facts of the present case makes it plainly clear that
the notice under Section 127 by the appellants was issued
only two years after the final revised plan under Section 38 2 1988 Supp. SCC 55
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had come into operation. The rejection of the appellants’
plea before the appellate authority under Section 47 of the
Act as well as the rejection of the writ petition filed by the
appellants before the Bombay High Court was, therefore,
fully justified. Consequently, we find no reason to interfere
with the impugned order dated 20th September, 2007 passed
by the High Court of Bombay. Accordingly, the appeal is
dismissed. However, in the facts and circumstances of the
case, we make no order as to costs.
..........………………………J. [RANJAN GOGOI]
…..........……………………J. [R.K. AGRAWAL]
NEW DELHI, DECEMBER 03, 2014.
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