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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2640 OF 2016

SATELLITE DEVELOPERS LIMITED .....APPELLANT(S)

VERSUS

STATE OF MAHARASHTRA & ORS. .....RESPONDENT(S)

J U D G M E N T

A.K. SIKRI, J.

This appeal has a chequered history with many rounds of

litigations.  At the same time, it may not be necessary to take a

detailed stock of various litigations.  It is simply because of the

reason that the controversy is substantially narrowed down, which

we are called upon to decide in these proceedings.  However, a

glimpse of the events that have taken place since the start of the

dispute may be spelled out in order to have an idea of the nature

of the dispute that had initially arisen and how the controversy

has remarkably shrunk and stands before us in a totally truncated

form.  The short list of dates and event, therefore, would suffice,

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which we reproduce below:

2) On September 16,  1991, the appellant  claimed rights over the

property being C.S. No. 1/255 on Foras Road, Tardeo Division,

Mumbai,  admeasuring 10,394 sq.mts.   Under  the Maharashtra

Regional and Town Planning Act, 1966 (hereinafter referred to as

the ‘MRTP’ Act),  the Municipal  Corporation of  Greater Bombay

can  requisition  the  land  for  development  for  the  purposes

specified under the said Act.  In respect of the aforesaid land, a

Draft  Development Plan (DDP) was prepared by the Municipal

Corporation  in  the  year  1991.   Under  the  said  Plan,  3548.52

sq.mts. of land was reserved for recreation ground, 1355 sq.mts

for maternity home and 5491.4 sq.mts. for housing the dishoused.

However, later the reservation for recreation ground was reduced

to 2000 sq.mts.  The MRTP Act further provides for acquisition of

such land, by agreement or under the Land Acquisition Act, 1894

in order to enable the Municipal Corporation to develop the land

as per the DDP.  If the steps in this behalf are not taken within the

stipulated period, it results into lapsing of the land reserved for

development.   This was so provided under Section 127 of  the

MRTP Act, which reads as under:

“127.  Lapsing of reservation:  If  any land reserved, allotted or designated for any purpose specified in any plan  under  this  Act  is  not  acquired  by  agreement

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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 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.”

3) On February 06, 2003, the appellant served upon the respondent

Corporation a purchase notice under Section 127 of the MRTP

Act  and  called  upon  the  Corporation  to  initiate  acquisition

proceedings in respect of land reserved for recreational ground.

On February 27, 2004, Notification under Section 6 of the Land

Acquisition Act, 1894, read with Section 126 of the MRTP Act was

issued by respondent No.1.  On June 21, 2006, by notice under

Sections 9 and 10 of the Land Acquisition Act, respondent No.4

called upon the appellant to furnish details required as per the

notice  issued  and  also  to  record  objections  in  respect  of

measurement of the subject land.  On September 22, 2006, the

appellants gave their No Objection for handing over the subject

land  against  monetary  compensation.   On April  22,  2010,  the

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appellant filed Writ Petition No. 1184 of 2010 wherein a prayer is

made  for  a  declaration  of  lapsing  of  the  reservation.   The

appellant,  however, also prayed for  an alternative  order  in  the

nature of a direction to the respondents to acquire the land.

4) On July 21,  2010, the High Court  disposed of  the writ  petition

directing respondent No.4 to pass the final award within a month

and granted liberty to the appellant to revive the writ petition in

case  of  non-compliance  by  respondent  No.4.   It  may  be

mentioned herein that the appellant had made a statement that it

will not press prayer (a) in the writ petition for de-reservation of

the subject land.  The operative portion of the order of the High

Court in this behalf reads as under:

“4.   We,  therefore,  dispose  of  the  petition  with  a direction that respondent No.4 shall pass the award on or  before  31st October, 2010 and make payment  of compensation in accordance with the award within a month thereafter.

5.  In case the respondent No.4 does not comply with the aforesaid time limit, the petitioner will be at liberty to move this Court for appropriate directions.  Liberty is also granted to the petitioner to revive the petition. This direction is given in view of the assurance from the petitioner’s Counsel that petitioners will furnish the required  documents  to  the  authorities  within reasonable time limit.”

5) Thereafter, on October 25,  2010, the High Court  extended the

time for passing of the award by respondent No.4 till December

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31, 2010 and further extended the time to pay the compensation

to  January  31,  2011.   On  March  31,  2011,  the  Municipal

Corporation sought further three months time to comply with the

above-mentioned order  dated  July  21,  2010.   The  High  Court

directed that 50% of the award amount be deposited in the Court.

Respondent No.3 had signed an award on October 31, 2011 for

2000.25 sq.mts. of land to be acquired.  The final compensation

as  per  the  award  is  Rs.14,48,19,014/-  and  proper  documents

were required to be submitted.

6) On July 17, 2012, the appellant filed another writ petition bearing

No. 1600 of 2012 with a prayer to quash the award dated October

31,  2011 passed  by  respondent  No.4  on  the  ground  that  the

appellant was never called on before signing of the award and

neither  was  the  compensation  amount  paid  by  the  Municipal

Corporation to respondent No.3 as per the provisions of the Land

Acquisition Act.   Significantly, the appellant,  apart from seeking

orders of quashing of the award and de-reservation of the subject

land, again sought to be compensated in terms of the Award.  In

spite of repeated extensions sought by the Municipal Corporation,

it failed to pay the compensation to the appellant, as directed by

the High Court by its order dated July 21, 2010.

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7) Writ Petition No. 1184 of 2010 was finally heard and decided on

May  08,  2013.   The  High  Court,  after  narrating  the  aforesaid

events, found that the respondents did not act with due diligence,

even after service of notice upon them under Section 127 of the

Act.  At the same time, the High Court was of the view that since

the remedy under Article 226 of the Constitution of India was in

the  nature  of  prerogative  remedy  and  the  extraordinary

jurisdiction of the High Court was purely discretionary, in the facts

of  the  present  case,  it  was  not  necessary  to  exercise  the

jurisdiction under Article 226 of the Constitution.  The High Court,

therefore,  refused  to  grant  prayer  (a)  based  on  notice  dated

February  06,  2003  given  by  the  appellant  to  the  respondents

under Section 127 of the MRTP Act.  In the process, the High

Court  observed that  the appellant  had waived the effect  of  its

notice under Section 127 inasmuch as it was regularly following

up with the respondents to complete the acquisition proceedings

and claim compensation against the same.  The High Court has

also held that as Writ Petition No. 1600 of 2010 was pending, the

question regarding validity of the award can be argued therein.

8) The  present  appeals  were  filed  questioning  the  validity  of  the

aforesaid  judgment  dated  May  08,  2013  passed  by  the  High

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Court.  The matter was taken up from time to time.  As pointed

out in the beginning, since the controversy has been narrowed

down, because of the positive attitude shown by both the parties,

it is not necessary to discuss the legal nuances.  

9) The Municipal Corporation has placed on record the Notification

dated  May  10,  2016  issued  by  the  Urban  Development

Department of the Government of Maharashtra.  It has offered to

settle the matter on the terms contained in the said Notification.

This Notification provides for  a 70/30 policy whereby the Chief

Officer may allow the owner to develop the reservation on 70% of

the land and after handing over it to the planning authority free of

cost then remaining 30% land may be allowed to be developed as

per adjoining use, subject to the following terms/conditions:

(a) The owner shall be entitled to develop remaining 30% land

for  the  uses  permissible  in  adjoining  zone  with  full

permissible  FSI  of  the  entire  plot  and  permissible  TDR

potential of the entire plot.

(b) The Municipal Chief Officer, if required, shall allow the TDR

for the unutilised FSI if any (after deducting in-situ FSI as

mentioned in Sr.No.(i) above) which shall be utilised as per

the TDR utilisation regulations.

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(c) No reservation shall allow to be developed partly.

10) Time  was  given  to  the  appellant  to  respond  to  the  said

suggestion.  The appellant, while maintaining that the DDP had

lapsed in view of the provisions contained in Section 127 of the

Act,  responded  to  the  aforesaid  proposal  of  the  Municipal

Corporation vide it is letter dated December 26, 2016 by stating

that the appellant was ready to consider developing 40% of the

plot as a Recreation Garden for the city at their own cost if 60% of

the balance plot is available to it for development, subject to two

conditions,  viz.,  (i)  as  per  MCGM  policy,  100%  of  FSI/

development  potential  of  the  entire  plot  is  allowed  to  be

constructed on the 60%; and (ii) any open space deficiency in the

planning of the building thereon be condoned without payment of

any premium therefor.

11) When the matter was heard, both the parties were agreeable to

resolve  the dispute,  but  pressed their  respective  stance.   The

appellant  submitted that the proposal quoted in its letter dated

December  26,  2016  be  accepted,  whereas  the  Municipal

Corporation impressed upon this Court to dispose of the matter in

terms  of  Notification  dated  May  10,  2016.   While  taking  their

respective positions in the manner aforesaid, Mr. Sidharth Luthra,

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learned senior counsel appearing for the appellant, and Mr. Mukul

Rohatgi,  learned Attorney General  appearing  for  the Municipal

Corporation, agreed that they would leave it to the Court to take

any appropriate and suitable decision in the matter.

12) We have considered the matter.  Strictly speaking, the Policy is

not applicable in the instant case.  However, both the parties want

that to be the basis for resolving the controversy.  For this reason,

the appellant is not pressing its challenge predicated on Section

127 of the MRTP Act.  However, at the same time, it wants some

modification  of  policy  terms  in  its  favour.   This  constructive

approach of both the parties commends to us.  Having regard to

the peculiar facts of this case and that the Municipal Corporation

has defaulted in certain respects, we are of the view that ends of

justice would be sub-served if we allow the owner/ appellant to

develop the reservation of 60% of land and after handing over it

to the Planning Authority free of cost, then remaining 40% land is

allowed to be developed as per the adjoining use, subject to the

conditions that are mentioned in the Policy dated May 02, 2016.

13) This order is passed in exercise of our powers under Article 142

of the Constitution and without treating this as a precedent.  It

may not be considered as tweaking with the Policy as the same

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is,  otherwise,  not  applicable.   That  is  taken as a yardstick  for

resolving the dispute as both the parties agreed for it.  We also

make it clear that the appellant would not be called upon to pay

any penalties and the award passed in the case would not come

in the way of the parties.

14) The civil appeal is disposed of in the aforesaid terms.

No costs.

.............................................J. (A.K. SIKRI)

.............................................J. (ABHAY MANOHAR SAPRE)

NEW DELHI; APRIL 27, 2017.

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