Case: The Kolhapur Municipal Corporation &amp; Ors Vs. Vasant Mahadev Patil (Dead) Through L.R.s &amp; Ors

reserved area is coming within High Flood Line and every year for a period of fifteen days to one month, the said area gets flooded during rainy season. In that view of the matter, the High Court ought not to have directed the Corporation to still acquire the land and pay the compensation to the original landowners though the land in question is unsuitable and unusable for the public purposes for which it has been reserved. As 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, 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 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 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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.10.3 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 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 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 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 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 Naphades 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 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 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.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 non- issuance of such a notification in the Official Gazette with respect to lapse of the reservation, allocation or designation would not affect the lapse of the reservation under Section 127(1) of the MRTP Act.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 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 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, 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.At one point of time, the aforesaid proposal was 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.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.