IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6661 OF 2019    

(ARISING OUT OF SLP (C) NO. 7481 OF 2018)

BALAJI ASSOCIATES      …APPELLANT(S) THROUGH ITS PARTNERS  

VERSUS

THE STATE OF MAHARASTRA AND ORS.         …RESPONDENT(S)

JUDGMENT    N.V. RAMANA, J.    

1. Leave granted.

2. This appeal, by way of special leave, was filed against the

impugned final judgment and order dated 05.02.2018 in

W.P.  No.  5969  of  2017,  passed  by the  High  Court  of

Judicature at Bombay (Nagpur Bench).  

3. The brief facts which are necessary for the disposal of

this case are that the appellant is a partnership firm and

its partners are the joint owners of the land in the Survey

No.7 Sub­division No.2, for a land admeasuring 3H 90R

of Mouja Durgavada, Tq.Morshi, District Amravati,

situated in the municipal limits of Nagar Parishad of the

city of  Morshi  [hereinafter  referred to  as  the “disputed

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Reportable

land”]. The final development plan for the city of Morshi

was published on 11.07.2005 which came into force from

01.09.2005. In the  aforesaid  plan  the  appellant’s land

was reserved for shopping centre and garden, by

reservation no. 22 and 23 respectively.  

4. Under Section 127 of Maharashtra Regional and Town

Planning Act, 1966 [hereinafter referred to as “the Act”],

the owners could de­reserve a plot of land by serving a

notice, after the lapse of 10 years from the date of such

reservation i.e., 10 years from 01.09.2005 herein.  

5. Accordingly, the appellant served the first notice, under

Section 127 of the Act, on 13.07.2015 asking the

municipality to either acquire the disputed land or

permit them to develop the same in accordance with law.

The aforesaid first notice was replied as being pre­

mature.  Moreover, the appellant again on 31.08.2015

sent the second notice under Section 127 of the Act. At

the outset we may note that the date of receival of the

second notice  is heavily contested, being  important we

shall take up the same in due course.  

6. Thereafter on 22.09.2015, respondent no. 2 directed

respondent no. 3 to  initiate the procedure required for

acquisition of disputed land. On 30.11.2015 there was a

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General  Body  Meeting  of the  Municipal  Council/Nagar

Parishad, Morshi wherein it was decided that the

disputed land was required for development of

garden/park and necessary acquisition needs to be

undertaken.  For  our  purposes we need to  observe  the

minutes of the meeting which is as under­

As per Section 27 MRTP Act 1966, Survey no. 7 of Mouja Durgavada Tq. Morshi, District Amravati reserved for Reservation no. 22 Shopping Centre and 23 Garden as per development Plan (Excluded Plan) of  Morshi City a discussion on the received notice is done in the standing committee  meeting of  Nagar Parishad Morshi. In this matter, Adv. G.K. Mundhada, Khaparde Garden issued a notice under Section 127 of MRTP Act, 1966 which has inward number 5081 on Dt. 14/07/2015 and Inward no. 57 on Dt. 2/9/2015 in Nagar Parishad Office inward record register. …  Finally, in  this  meeting after  discussion  it is decided that the said land is required by the Nagar Parishad. Hence proposal for land acquisition is to be presented in front of Collector  Amravati.  Also, the expenditure for said land should be done as per the Government defined guidelines of 13th Finance Commission and 14th Finance commission. Hence the standing committee is giving approval in majority for all the expenses to be incurred  in  future  for  acquisition of the said land. Resolution approved by Majority.

(Emphasis supplied)

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7. Further  on 14.01.2016, respondent  no.  3  submitted  a

proposal for acquisition of the disputed land before the

respondent no. 4 (Collector), on the basis of the

resolution passed on 30.11.2015. However, respondent

no. 4 informed respondent no. 3 that the aforesaid

proposal  was  not in  order  and the same  needs to  be

resubmitted. A fresh proposal was submitted by

respondent no. 3, by letter dated 16.12.2016. It is

brought to our attention that nothing has proceeded

further and accordingly, acquisition has not taken place

till this point of time.  

8. Aggrieved by the fact that appellant was not allowed to

enjoy the benefit of its ownership in the aforesaid

disputed land, appellant through its partners filed a Writ

Petition praying therein for a declaration that the

reservation of their land has lapsed under Section 127 of

the Act and other consequential relief.  

9. The High Court by order dated 05.02.2018 dismissed the

impugned writ petition on two major premises. First, the

High Court was of the opinion that the second notice was

sent prematurely thereby the necessary procedures

required under Section 127 of  the Act  for de­reserving

the land were not satisfied. Second, as the second notice

dated  31.08.2015 was  not satisfactory, therefore there

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was no need for further elaboration on steps, taken for

acquiring the land, to be followed by the municipality as

required under Section 127 (1) and (2) of the Act.

10. Aggrieved by the aforesaid dismissal, the appellant has

approached this Court.

11. Having observed the facts, we need to briefly notice the

appellant’s contention  herein. Appellant contends that

the second notice dated 31.08.2015 was received by the

respondent authorities only on 02.09.2015 and not on

01.09.2015. Appellant rely extensively on the minutes of

the meeting which records the aforesaid fact and claims

that their notice was not premature. Further, the

appellant contends that the concerned authorities have

not taken adequate steps to acquire the aforesaid land in

accordance  with the  mandate provided under Section

127 of the Act which consequentially entails de­reserving

the aforesaid land.  

12. On the other hand, the learned counsel for the

respondents contend that on reading of the provisions of

Section 127 (1) of the Act it is clear that, an owner or a

person interested in the land would be entitled to serve a

notice  only  after completion  of the  period  of  10  years

from  the  date  on  which the  Final  Developmental  Plan

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comes into force. In this case, since the Final

Developmental Plan had come into force on 01.09.2005,

the notice dt. 31.08.2015 is served on the respondent no.

3 before the completion of the stipulated period of  10

years from  the  date of coming into force  of the  Final

Developmental Plan. Therefore, they contend that the

High Court has rightly observed the period of 10 years,

as mentioned in the aforesaid provision of Section 127 of

the Act, is finally yet to complete before service of notice

under Section 127 and hence the said notice under

Section 127 issued by the appellant on respondent no. 3

(Municipal Council, Morshi) would be treated as

premature. Also, the respondent no. 3 has submitted a

land acquisition proposal to the respondent no. 4. Hence,

they argue that the  High  Court has passed order to

safeguard the interest of general public at large and has

thoroughly and judiciously stated that the provision for

lapsing does not become a tool to defeat the very purpose

of the Act.  

13. Having heard the arguments, we need to observe Section

127 of the Act, which reads as under­

127.  Lapsing of  reservations.-   309[(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

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into force 310[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  311[twenty-four months]]  from the date  of  the  service  of  such  notice,  the  land  is  not acquired or no steps as aforesaid are commenced for its acquisition,  the  reservation,  allotment  or  designation shall be deemed to have lapsed, and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise, permissible  in  the  case  of  adjacent  land  under  the relevant plan. 312[(2)  on  lapsing  of  reservation,  allocation  or designation  of  any  land  under  sub-section  (1),  the Government  shall  notify  the  same,  by  an  order published in the Official Gazette.]

309 Section 127 re-numbered as sub-section (1)  by Mah. Act No.16 of 2009, dated 25th June, 2009.

310 Substituted for “or if proceedings for the acquisition of  such  land  under  this  Act  or  under  the  Land Acquisition Act, 1894 (1 of 1894), are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development  Authority  or  as  the  case  may  be, Appropriate  Authority  to  that  effect;  and if  within  six months” by Mah. Act No.16 of  2009, dated 25th June, 2009.

311 Substituted  for  “twelve  months”  by  the Maharashtra Regional  and Town Planning (Third Amendment) Act, 2015 (Mah. Act No.42 of 2015), dated 31-12-2015 (w.e.f. 29-08-2015), s.7.

312 Sub-Section (2)  added by Mah. Act No.16 of  2009, dated 25th June, 2009.

The statutory provision is clear and categorical. Section

127 (1), mandates that for an owner whose land is

reserved, allotted or designated, in terms of final regional

plan or developmental plan, needs to serve a notice to

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inform the municipality and seek its response concerning

its interest in acquiring the land, if he wants his property

to  be  de­reserved.  As  provided  under the  Section, the

time limit to serve such notice accrues from the end date

of stipulated  period  of ten  years.  Once  such  notice is

served, the  municipality  has  24  months to  acquire  or

take steps for acquisition of land. If municipality does not

take the required measures in accordance with the

aforesaid provision, then the land would be de­reserved

and the owner can develop the same in accordance with

law. Under sub­section 2 of Section 127 of the Act, the

Government is required to publish the de­reserved plots

in the Official Gazette.  

14. It is the contention of the respondents that the second

notice was pre­mature as the notice under Section 127 of

the Act, is required to be served after completion of the

stipulated time. They place their reliance on the

acknowledgment signed by the Municipality, while

receiving the post which records the event of receival as

01.09.2015.   While the appellant rely on the Minutes of

the  meeting  of the  General  Body, to  point the factual

discrepancy,  wherein the letter is  stated to  have  been

received only on 02.09.2015.  

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15. In our considered opinion, the writ courts, usually,

should not indulge themselves in such factual findings.

However, this case has been dragged too long and any

further delay would unduly affect the right to enjoy

property and benefits thereof. In any case, this case

turns on the aspect of admission on the part of the

respondents, that the second notice was received on

02.09.2015. There is no gain saying that the respondents

have  not  denied that their  own General  Body Meeting

Resolution  has  accepted that the  date  of receival  was

02.09.2015. In this context we need to accept the same.

We may note that the High Court has ignored the

aforesaid aspect, to rely exclusively on the

acknowledgment. In the afore­stated circumstances,

reliance on the acknowledgment would not be safe.

Having come to this  understanding,  we can conclude

that the second notice can be said to have reached the

Municipality on 02.09.2015, after the expiry of the

stipulated period.

16. Having decided the first aspect, we need to now turn our

attention to a different aspect under Section 127 (1) of

the Act, regarding the satisfaction of the actions

undertaken by the Municipality, to acquire or steps

taken  for  acquiring,  within  the stipulated period of  24

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months from the service of notice.  We may note that the

aforesaid time period of 24 months under Section 127 of

the Act, given to the municipal authorities, was increased

from 6 months to  12  months by  an Amending  Act in

2009 (Mah. Act No. 16 of 2009);  further, this time period

was  increased  from 12 months  to  24 months  in 2015

(Mah. Act No.  42 of  2015 w.e.f  29.08.2015).  From the

aforesaid amendments, it can be noted that the

legislative intent  was  to  provide  sufficient time  for the

Municipalities to acquire the land as per the

Developmental Plan needed for effective town planning.

17. In any case, the respondents herein have admitted that

the fresh proposal was forwarded from the office of

respondent no. 3 on 16.12.2016, and the same is

currently being processed through the  Office of Land

Acquisition Officer, Amaravati. From the aforesaid

narration, there is no gain saying that the appellant has

been denied its right to enjoy benefits of its possession by

this protracted litigation. Mere forwarding of the

proposal, would not be sufficient under Section 127 (1) of

the Act, as the concerned provision distinguishes

between  ‘step of acquisition of land’  from  ‘step for

acquisition of land’.

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18. In this context, we may refer to the case of Shrirampur

Municipal  Council,  Shrirampur vs.  Satyabhamabai

Bhimaji Dawkher and Ors., 2013 (5) SCC 627, wherein

a three Judge Bench of this Court has observed that­  

42.  We are further of the view that the majority in     Girnar Traders (2)   1    had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular  piece  of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act  will make the provisions  wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government.

43. The expression "no steps as aforesaid" used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of  land under the 1966 Act or 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

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State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time  limit  of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land,  with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphade's interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution.

1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555

(emphasis supplied)

In line with the observations of this Court, we hold that

the authorities have not taken sufficient steps towards

acquisition in this case. As the 24 months’ time period

stipulated under the law has elapsed, therefore the

necessary procedures under Section 127 (1) of the Act,

stand satisfied for de­reserving the disputed land.  

19. The respondents have finally argued that the fulfilment of

requirements under Section 127 (1) of the Act does not

automatically de­reserve the land, rather it’s a discretion,

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under sub­section 2 of Section 127 of the Act, bestowed

on the Government to choose the land to be de­reserved

and publish the same in the Official Gazette. Such

mandatory reading of the sub­section 2 of Section 127 of

the Act, would give unfettered power in the hands of the

State to pick and choose. This Court needs to effectively

balance the power of eminent domain and the

constitutional right of property, which mandates a

rational reading of the law, wherein the declaration in the

Official Gazette is only consequential and the State needs

to follow, if the conditions under sub­section 127 (1)

stands satisfied. The usage of ‘On lapsing of reservation,

allocation or designation of any land under sub­section (1)’

in the sub­section 2 of Section 127, clearly points

towards the aforesaid interpretation. Moreover, the usage

of ‘shall’, also indicates the imperative nature of the sub­

section,  which  makes the  Government  duty bound to

publish the same. [refer  Labour Commr. M. P. v.

Burhanpur Tapti Mill Ltd. & Ors., AIR 1964 SC 1687]

In this case, we are of the opinion that the requirement

under Section 127 (1) are fully satisfied.

20. Our attention has been drawn to certain adverse remarks

passed by the  High  Court against the advocate, who

appeared before it for the appellant herein, as contained

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in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the

impugned judgment. In our considered opinion, such

adverse remarks  were uncalled for, un­necessary and

therefore, the same stand expunged from the record.

21. In the light of the aforesaid observations, the inevitable

conclusion is that the reservation of the appellant's land

in question has lapsed and the land has become

available to the appellant to be developed as otherwise

permissible. Appeal, therefore deserves to be allowed and

is accordingly allowed in terms of prayer. The State

Government is directed to notify the lapsing of the

reservation by an order to be published  in the Official

Gazette as per the requirements of Section 127(2) of the

Act which shall be done as expeditiously as possible and

preferably within a period of 4 months from today.

22. Appeal stands allowed in the above said terms. No order

as to costs.

    .........................J.    (N.V. RAMANA)

       ........................J.  (MOHAN M. SHANTANAGOUDAR)

........................J.  (AJAY RASTOGI)

NEW DELHI;  

AUGUST 27, 2019.

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