MOHANDAS AND OTHERS versus THE STATE OF MAHARASHTRA AND OTHERS
[2020] 3 S.C.R. 472, Supreme Court of India, 2020
Outcome: Dismissed (Dismissed)
Segment: Ratio
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MOHANDAS AND OTHERS
v.
THE STATE OF MAHARASHTRA AND OTHERS
(Civil Appeal No. 831 of 2020)
JANUARY 29, 2020
[MOHAN M. SHANTANAGOUDAR AND
K. M. JOSEPH, JJ.]
Maharashtra Regional and Town Planning Act, 1966 – Scheme
of the Act – ss.38, 49, 126(4) & 127 – Appellants are the owners of
different plots of land – Development Plan was issued under the
1966 Act and the entire land owned by the appellants was reserved
for construction of shopping complex – However, no steps were
taken by first and fourth respondent (Municipal Council, Gondia)
– Plan was enforced from 1984 – Erstwhile owners of the property
issued notice dtd. 09.06.04 u/s.127 to fourth respondent for initiating
necessary steps to acquire the land – Revised Draft Plan showed
that the appellants’ property was reserved for shopping complex
and vegetable market – Objected by appellants – Final Development
Plan also showed appellants’ property as reserved for shopping
complex and vegetable market – Writ Petition filed inter alia for
quashing the Final Development Plan – Dismissed by High Court –
On appeal, held: Final Development Plan in this case came into
force on 24.08.84 – Draft Revised Plan was issued on 24.09.07 –
Final Revised Development Plan was issued w.e.f 15.05.12 – Right
would accrue to the owner u/s.127 to serve notice thereunder only
if a declaration is not published within ten years of the Development
Plan u/s.126(4), inter alia
– Final Development Plan came into force
on 24.08.84 and there was declaration/notification u/s.126(4) on
03.09.92 – This means, within ten years from 24.08.84, there is
action, as contemplated u/s.126(4) – Therefore, any notice which
was given u/s.127 may not hold good going by the letter of the law
– Further, lapsing of reservation contemplated u/s.127 will occur
only if the conditions mentioned therein are fulfilled – This is a case
where the reservation under the Plan dtd. 24.08.84, which was the
final Development Plan, had not lapsed and it was finally revised
u/s.38 – High Court right in finding that the appellant was not entitled
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to the relief based on lapsing of reservation u/s.127 – Present is not
a case for powers u/Art.142 to be exercised – Appellants must wait
for a period of ten years u/s.127 from 15.05.12 and then can issue
notice contemplated under the Act, unless action is already taken
in the meantime – No view expressed on invoking of s.49 – All
remedies available to the appellants are left open – Constitution of
India – Art.142 – Right to Fair Compensation and Transparency in
Land Acquisition Rehabilitation and Settlement Act, 2013.
Maharashtra Regional and Town Planning Act, 1966 – s.38
– Discretion under, of the Planning Authority – If any – Discussed.
Maharashtra Regional and Town Planning Act, 1966 – s.126
– Effect of declaration under – Discussed.
Dismissing the appeal, the Court
HELD: 1.1 The right would accrue to the owner under
Section 127 of the Act to serve notice thereunder only if a
declaration is not published within ten years of the Development
Plan under Section 126(4) of the Act, inter alia. The High Court
has, undoubtedly, noticed that the final Development Plan came
into force on 24.08.1984. It further noticed that there is a
declaration or Notification under Section 126(4) of the Act on
03.09.1992. This means, within ten years from 24.08.1984, there
is action, as contemplated under Section 126(4) of the Act. Under
Section 127 of the Act, therefore, any notice which was given
may not hold good going by the letter of the law. In this case, it is
clear
that the appellants are governed by the Act. There is no
dispute that invoking Section 38 of the Act that a revised final
Development Plan has come into effect from 15.05.2012. It is
undoubtedly true that the reservation under the original
Development Plan dated 24.08.1984 would cease to impact the
appellants if the notice under Section 127 of the Act was issued
on the passage of ten years from 24.08.1984 and, if action under
Section 127 of the Act was not taken. It is true that notice dated
09.06.2004 was issued by the predecessor in title of the appellants.
This is not a case where there was inaction on the part of the
previous owners of the property upon the expiry of ten years
from the date of the final Development Plan in 1984. The problem
for appellants, however, is the action on the part of the respondent
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issuing declaration under Section 126(4) of the Act on 03.09.1992.
Lapsing of reservation contemplated under Section 127 of the
Act will occur only if the conditions mentioned therein are fulfilled.
The indispensable conditions is that after the reservation of the
land, inter alia, under any Plan, for a period of ten years, the land
is not acquired by agreement within that period or proceedings
for acquisition under the Act, i.e., declaration under Section 126(4)
of the Act, inter alia, is not published within the said period. If
either of the two conditions exist, a notice is to be issued setting
in motion the process for lapsing reservation. If, before issuance
of notice, action is already taken by issuance of notification/
declaration by the respondent within ten years of the final
Development Plan, it will render the notice ineffective in law.
The result is that the High Court was right in finding that the
appellant was not entitled to the relief based on lapsing of
reservation under Section 127 of the Act. This is a case, therefore,
where the Development Plan also stood revised under Section
38 of the Act, bringing in consequences. [Paras 25-26][492-B-H;
493-A]
1.2 Therefore, this is a case where the reservation under
the Plan dated 24.08.1984, which was the final Development Plan,
had not lapsed and it was finally revised under Section 38 of the
Act. It is not in dispute that the property of the appellants had
been reserved originally for the purpose of shopping complex,
and under the revised Development of 2012, for shopping complex
and vegetable market. Proceeding on the basis of the contention
of the appellant that since the revised Development Plan was
issued more than 20 years from the issuance of the initial final
Development Plan on 24.08.1984, and therefore, revised Plan
issued on 24.09.2007, is not to have effect even then the original
Development Plan issued on 24.08.1984 would continue to hold
good. There is no dispute that reservation under both the Plans
in respect of the appellants properties are the same. In such
circumstances, there can be no merit in the contention. [Paras
27, 29][493-B-E]
1.3 What is contemplated under Section 38 is that the
Planning Authority may at least once in 20 years from the date on
which a Development Plan has come into operation, inter alia,
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(the period of 20 years been calculated from the date on which, it
came into operation) revise the Development Plan. The provisions
of Sections 22, 23, 24, 25, 26, 27, 28, 30 and 31 were to apply in
this regard. The final Development Plan in this case came into
force on 24.08.1984. The draft Revised Plan was issued on
24.09.2007 and the final revised Development Plan was issued
with effect from 15.05.2012. The further provision in Section 38
of the Act is that if the Government directs the revision of the
Plan, the Planning Authority shall revise the Plan. It may be at
any time. In other words, the scheme would appear to be that
even before the completion of 20 years, it is open to the
Government to direct the Planning Authority to undertake the
revision of an existing Development Plan. In such a case, the
word used is shall and there is no discretion and the Planning
Authority is to revise the Plan. State Government can issue the
direction at any time without waiting for the period of 20 years.
As far as the Planning Authority undertaking revision on its own,
it is discretionary. As regards the time limit being breached, in
the facts of this case, the Court is unable to agree. It is not
stipulated in Section 38 of the Act that the revision must be
undertaken and finalized immediately before the expiry of 20 years
from the date of the original final Development Plan. A period of
20 years is to run out from original Development Plan in a case
where the
Planning Authority wishes to exercise power of revision
of the Plan. That is not the same thing as saying that the revised
Plan is to be brought into force before the expiry of 20 years. In
this case, it is also not clear whether the Planning Authority
undertook the revision following the direction of the Government.
[Para 31][494-A-F]
1.4 In this case, the declaration has been issued under
Section 126(4) of the Act on 03.09.1992. The effect of the
declaration under Section 126(4) is that the value of the land was
to be determined with reference to the date of the declaration. If
declaration is made under Section 126(2) of the Act, the valuation
is pushed back to the date of the draft Development Plan. What
is actually contemplated would appear to be that after the
declaration under Section 126(4), the matter must be followed
up with reasonable dispatch. In other words, under the law relating
to land acquisition, further steps will be taken culminating in an
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Award. In this case, on the other hand it is not in dispute that no
steps were taken for acquiring the land for more than two decades.
It is in the meantime that the revised Development Plan has come
into being on 15.05.2012. Since no declaration has been made
under Section 126(2) of the Act under the revised Plan and the
period has run out as contemplated in the proviso to Section
126(2), the only way out for the respondent would be to bring out
a declaration under Section 126(4) of the Act. In such an
eventuality, the value of the properties would have to be
determined with reference to the date of such declaration under
Section 126(4) of the Act. Therefore, if the property of the
appellants is to be acquired, the appellants would have to be given
the value of the property as on the date on which any such
declaration is made under Section 126(4) of the Act within ten
years from 15.05.2012. [Para 32][494-G-H; 495-A-C]
1.5 In letters dated 6/7.04.2005 issued by the Municipal
Council, it is stated by the Chief Executive Officer that in the
Resolution dated 15.02.2005, the land reserved no. 137 for
shopping complex in Khasra Nos. 406, 407, 410 and 411, total
land measuring 4928 square meters in village Gondia shall not
be purchased. Resolution dated 15.02.2005 also appears to
suggest that the reservation under Section 127 of the Act is
released. The appellants would appear to contend that this should
by itself cannot
decide the matter. As to whether there is a lapsing
of reservation under Section 127 of the Act, would be a matter to
be decided in terms of the said Statute. Also, after the Resolution
in the revised Plan, the reservation is reiterated. On 24.08.1984,
the final Development Plan is published. On 03.09.1992, the
declaration under Section 126(4) of the Act was published. After
expiry of ten years from 24.08.1984, notice was given by the
previous owners on 09.06.2004. Thereafter, draft revised draft
Plan publication was made on 29.11.2007. Still, thereafter, on
15.05.2012, a final revised Development Plan was published.
Although, under the original final Development Plan dated
24.08.1984, the property of the appellants was reserved for
shopping complex, and under the revised final Development Plan
dated 15.05.2012, the appellants lands have been subjected to
the reservation that it is meant for use as shopping complex and
vegetable market, apart from issuing the declaration, under
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Section 126(4) of the Act in the year 1992, there is no declaration
issued under the revised Plan dated 15.05.2015. While, it is true
that the original final Development Plan came into force on
24.08.1984 and the revised Development Plan came into force in
the year 2012, one crucial fact cannot be overlooked. Admittedly,
the appellants purchased lands from the erstwhile owners only
on 02.01.2006. Therefore, on the facts, particularly, having regard
to the fact that they have purchased the property apparently
knowing that the property was subjected to reservation, and as
also it is found that their case, based on the notice of previous
owners, would not hold good in law and as the subsequent revision
of the Plan has come into force with effect from 15.05.2012, the
Court does not find that this is a case where it should exercise
its powers under Article 142 of the Constitution. Appellants cannot
be compared with the appellant in Hasmukhrai V. Mehta as the
appellant therein was a person who was favoured with a
permission to develop his land on the basis that the land was
meant for residential purpose and it was he who went to court
and the lapse of twenty years was in the context found to have a
deep impact. [Paras 35-37][496-D-H; 497-A-D]
Hasmukhrai V. Mehta v. State of Maharashtra and
others (2015) 3 SCC 154 : [2014] 11 SCR 377 –
distinguished.
Prafulla C. Dave and others v. Municipal Commissioner
and others (2015) 11 SCC 90 : [2014] 13 SCR 1397 –
relied
on.
Bhavnagar University v. Palitana Sugar Mill (P) Ltd.
And others (2003) 2 SCC 111 : [2002] 4 Suppl. SCR
517; Chhabildas v. State of Maharashtra and others
(2018) 2 SCC 784 : [2018] 1 SCR 411; Municipal
Corporation of Greater Bombay v. Dr. Hakimwadi
Tenants’ Association and others (1998) Supp. SCC 55
: 1988 SCR 21; Girnar Traders v. State of Maharashtra
and others [Girnar 2] (2007) 7 SCC 555 : [2007] 9
SCR 383; Girnar Traders (3) v. State of Maharashtra
[Girnar 3] (2011) 3 SCC 1 : [2011] 3 SCR 1;
Shrirampur Municipal Council v. Satyabhamabai
Bhimaji Dawkher (2013) 5 SCC 627 : [2013] 2 SCR
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664; T. Vijayalakshmi and others v. Town Planning
Member and another (2006) 8 SCC 502 : [2006] 7
Suppl. SCR 534 – referred to.
Case Law Reference
[2002] 4 Suppl. SCR 517
referred to
Para 8
[2018] 1 SCR 411
referred to
Para 8
[1988] SCR 21
referred to
Para 10
[2007] 9 SCR 383
referred to
Para 10
[2011] 3 SCR 1
referred to
Para 10
[2013] 2 SCR 664
referred to
Para 18
[2014] 13 SCR 1397
relied on
Para 21
[2014] 11 SCR 377
distinguished
Para 23
[2006] 7 Suppl. SCR 534
referred to
Para 33
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 831 of
2020.
From the Judgment and Order dated 30.03.2015 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Writ Petition No.
4724 of 2013.
Shekhar Naphade, Sr. Adv., Rajendra Singhvi, Suresh Tolani,
Ms. Arundhati Chakraborty, Ms. S. Lakshmi Iyer, Ms. Aishwarya Dash,
T. R. B. Sivakumar, T. L. Garg,  Advs. for the Appellants.
B. K. Pal, Nishant Ramakantrao Katneshwarkar, Advs. for the
Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Leave granted.
2. Appellants are the petitioners before the High Court of Bombay.
By the impugned Judgment, the Writ Petition filed by them stands
dismissed.
3. The prayers sought by the appellants are as follows:
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“(A) Quash and set aside the Reservation No.S-169 in the Final
Development Plan of Gondia (Second Revised), whereby the land
bearing Survey Nos. 405/1, 406/2, 407/2, 410/2 and 411 of Mouza-
Gondia (Bk.), Tehsil & District-Gondia, belonging to the petitioners
is reserved for Shopping Complex and Vegetable Market
(Annexure “J”).
(B) Hold and declare that the land bearing Survey Nos. 405/1,
406/2, 407/2, 410/2 and 411 of Mouza-Gondia (Bk.), Tehsil &
District-Gondia, are not reserved for the development of Shopping
Complex and Vegetable market vide Reservation No.S-169 in the
Final Development Plan of Gondia (Second Revised) and that the
petitioners are free to use and develop the said land as true lawful
and absolute owners thereof as per the user for the adjacent land
provided under the Final Development Plan of Gondia (Second
Revised) {Annexure “J”}.”
4. Briefly, their case, before the High Court, is as follows:
Appellants are the owners of different plots of land totally
admeasuring 0.52 hectares. They purchased the land on 02.01.2006. A
Development Plan was issued under the Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as ‘the Act’, for short). Under
the Development Plan issued, the entire land owned by the appellants
was reserved for construction of shopping complex. First respondent
and the fourth respondent (State of Maharashtra and the Municipal
Council, Gondia), however, did not take any steps. The Plan was enforced
from
1984. The erstwhile owners of the property issued a notice dated
09.06.2004 under Section 127 of the Act calling upon the fourth respondent
to initiate necessary steps for acquiring the land. The Municipal Council
held a meeting on 15.02.2005. It was alleged that the fourth respondent
decided, by Resolution, not to acquire the land. Reference is placed on
letters of 07.04.2005 and 08.04.2005 intimating that the land was free to
be used and developed in accordance with the user of adjacent lands.
Though a draft Award was made by the Special Land Acquisition Officer,
it was dropped on account of non-availability of funds. It is the further
case of the appellant that appellant had submitted proposal for
regularization of the layout carved out Plan over the said land. In the
meantime, a revision of the Development Plan was contemplated and a
Draft Plan was published followed by public notice. Again, the revised
draft Plan showed that the appellants property was reserved for shopping
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complex and vegetable market. Appellants objected to the same.
Appellants were called for hearing by the fourth respondent. Appellants
immediately thereafter approached the first respondent with detailed
representation. On 15.05.2012, the final Development Plan of Gondia
(Second Revised Scheme) came into effect. The appellants property is
shown as reserved for shopping complex and vegetable market. It is
essentially on these facts and complaining of inaction on the notice given
by their predecessors in the interest under Section 127 of the Act and
contending that the reservation in the Development Plan has ceased to
exist, the Writ Petition was filed seeking reliefs, as noted by us. The Writ
Petition was opposed. The High Court, by the impugned Order, dismissed
the Writ Petition.
5. We have heard the learned Senior Counsel for the appellants
Shri Shekhar Naphade. We also heard the learned Counsel for the first
respondent-State of Maharashtra. There was no representation on behalf
of the fourth respondent-Municipal Council.
6. Shri Naphade, learned Senior Counsel pointed out that the
Development Plan, reserving the property of the appellants, was made
way back in the year 1984. A notice was given within the meaning of
Section 127 of the Act. As there was no appropriate action as
contemplated under Section 127, the inevitable consequence is that the
property of the appellants must be freed from the reservation it is
subjected to in the Development Plan.
7. Section 127 of the Act must be noticed at once. It reads as
follows:
“127. (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 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
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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.]”
8. When the Court pointed out the fact that the High Court has
found that there is a declaration under Section 126(4) of the Act within
ten years from 1984, i.e., on 03.09.1992, the learned Senior Counsel
would point out that even proceeding on the basis of the same, it is
wholly unjust to keep under captivity, as it were, the valuable properties
of the appellants seemingly eternally. He further complained that it is not
as if any public purpose is going to be sub-served. This is a case where
the Municipal Council, which is the Authority, which must make available
the funds for the acquisition of the property, is in dire financial straits
and is unable to finance the acquisition. The Municipal Council does not,
in fact, want to acquire the land. The letters issued and referred to by us
is referred to. The appellants are, thus, held hostage and are at the
receiving end of the most unfair treatment by paying obeisance to the
letter of the law as contained in Section 127 of the Act. He would further
point out
that the reasoning of the High Court about the effect of the
revised Scheme coming into force under Section 38 of the Act is fallacious
and goes against the view of this Court in Bhavnagar University v. Palitana
Sugar Mill (P) Ltd. and others1. He also drew our attention to a recent
judgment of this Court in Chhabildas v. State of Maharashtra and others2.
He would, therefore, contend that this is a fit case where this Court may
reach justice to the appellants who virtually stand deprived of their property
within the meaning of Article 300A of the Constitution of India.
9. Per contra, the learned Counsel on behalf of the first respondent
pointed out that the impugned judgment is premised soundly in law.
Appellants, who sought to invoke the provisions of Section 127 of the
Act, based on notice issued by their predecessor in interest, have, in the
light of the finding that declaration has been made under Section 126(4)
within a period of 10 years (1992) of the Plan, issued in 1984, stand
1 (2003) 2 SCC 111
2 (2018) 2 SCC 784
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deprived of any legal right to the consequences under Section 127 of the
Act following non-compliance with such notice. He does not dispute the
fact that there is considerable delay.
10. The legal principles about the provisions which we are
concerned with, is no longer res integra. The effect of the Act has been
explained in the decisions reported in Municipal Corporation of Greater
Bombay v. Dr. Hakimwadi Tenants’ Association and others3, Girnar
Traders v. State of Maharashtra and others4 [Girnar 2], Girnar Traders
(3) v. State of Maharashtra5 [Girnar 3] among other cases. We will
advert to them in due course.
11. Undoubtedly, the scheme of the Act briefly put is as follows:
The Act contemplates planned development. Chapter II deals with
provisions relating to regional plans. Regional Plan is defined in Section
2(25) as meaning a plan for development or redevelopment of a region
approved by the State Government and which has come into operation
under the Act. Region is in turn defined as an area established to be a
region under Section 3 of the Act.  Development Plan falls under Chapter
III of the Act. The Act contemplates that every Planning Authority is to
prepare the development authority. Development Plan is defined under
Section 2(9) as a Plan for the development or redevelopment of the area
within jurisdiction of a Planning Authority. It also includes revision of a
development plan and proposals of the Special
Planning Authority for
development of land within its jurisdiction. Development is defined in
Section 2(7) in a very comprehensive way. Planning Authority is defined
in Section 2(19), and after its substitution by Act 5 of 1992, it means a
Local Authority and includes a Special Planning Authority under Section
40 as also the Slum Rehabilitation Authority under Section 3(a) of the
Maharashtra Slum Areas Improvement, Clearance and Regional Act,
1971. Spread over the various Sections of Chapter III, are elaborate
provisions including preparation of draft Development Plans and finalizing
the same, implementation, revision and variation of the Plan. Section 43
of the Act speaks about restrictions on the development of land upon the
declaration of intention to prepare a Development Plan. Section 45 speaks
about the power to grant or refuse permission for the Application under
Section 44 to develop the land.
3 (1998) Supp. SCC 55
4 (2007) 7 SCC 555
5 2011 (3) SCC 1
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Chapter V deals with Town Planning Schemes. The word
‘Scheme’ has been defined as including a Plan relating to Town Planning
Scheme.
12. Bearing these provisions in mind, we come to Chapter VII.
Provisions under the said Chapter relate to land acquisition. Section 125
of the Act provides that any land acquired, reserved or designated in
Regional Plan or Development Plan or Town Planning Scheme, inter
alia, shall be deemed to be land needed for public purpose, under the
Right to Fair Compensation and Transparency in Land Acquisition
Rehabilitation and Settlement Act, 2013 (Prior to 29.08.2015, undoubtedly,
the words were under the Land Acquisition Act, 1894, as far as the last
part is concerned). Sections 4 to 15 of the 2013 Act is not made applicable
in respect of the said lands. Section 126 of the Act deals with the mode
of applying the law relating to acquisition in regard to a draft Regional
Plan or Development Plan or any other Plan or Town Planning Scheme.
Sub-Section (1) contemplates acquiring land either by agreement or the
basis of granting of other rights including Transferable Development
Right (TDR). Lastly, the Authority can apply to the State Government
for acquiring such land under the law relating to land acquisition. Sub-
Section (2) contemplates action on the part of the State Government on
receipt of application under Sub-Section (1). It contemplates a declaration
by the State Government. It provided, inter alia, that the declaration
was
to be deemed to be a declaration under the Land Acquisition Act,
1894 and after the amendment, as it stands now, under Section 19 of the
Right to Fair Compensation Act, 2013. After substitution by Act 10 of
1994, no declaration was to be made after expiry of one year from the
date of publication of the draft Regional Plan, Development Plan or any
other Plan or Scheme. Sub-Section (3) of Section 126 of the Act provides
for the Collector to proceed to take order for acquisition of the land.
Sub-Section (4) of Section 126 of the Act, reads as follows:
“126(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 5[(Amendment) Act,
1993)], the 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
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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.]
13. Then, there is Section 127 which deals with lapsing of
reservation, inter alia, which we have already referred to above.
14. We may also notice Section 49 of the Act. Section 49 of the
Act deals with a notice to acquire land in certain situations. The situations
are set out in sub-Section (1). It includes a situation where any land, for
the development of which permission is refused and owner falls under
any of clauses in (a), (b), (c), claims that the land have become incapable
of reasonably beneficial use in its existing state or where permission is
granted subject to conditions which render the land not capable of
reasonably beneficial use. Under sub-Section (4), the State Government
to which the purchase notice under the Section is to be addressed is to
take the decision either accepting or refusing the purchase notice. Sub-
Section (5) deals with a deemed confirmation of a purchase notice failing
response within six months by the Government on the notice. Sub-Section
(7) of Section 49 reads as follows:
“49(7) If within one year from the date of confirmation of
the notice, the Appropriate Authority fails to make an application
to acquire the land in respect of which the purchase notice has
been confirmed as required under section 126, the
reservation,
designation, allotment, indication or restriction on development of
the land shall be deemed to have lapsed ; and thereupon, the land
shall be deemed to be released from the reservation, designation,
or, as the case may be, allotment, indication or restriction and
shall become available to the owner for the purpose of development
otherwise permissible in the case of adjacent land, under the
relevant plan.”
15. In Municipal Corporation of Greater Bombay v. Dr. Hakimwadi
Tenants’ Association and others6, this Court, inter alia, held as follows:
“11. Section 127 of the Act is a part of the law for acquisition
of lands required for public purposes, namely, for implementation
of schemes of town planning. The statutory bar created by Section
127 providing that reservation of land under a development scheme
shall lapse if no steps are taken for acquisition of land within a
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period of six months from the date of service of the purchase
notice, is an integral part of the machinery created by which
acquisition of land takes place. The word “aforesaid” in the
collocation of the words “no steps as aforesaid are commenced
for its acquisition” obviously refer to the steps contemplated by
Section 126(1). The effect of a declaration by the State
Government under sub-section (2) thereof, if it is satisfied that
the land is required for the implementation of a regional plan,
development plan or any other town planning scheme, followed
by the requisite declaration to that effect in the official Gazette, in
the manner provided by Section 6 of the Land Acquisition Act, is
to freeze the prices of the lands affected. The Act lays down the
principles of fixation by providing firstly, by the proviso to Section
126(2) that no such declaration under sub-section (2) shall be
made after the expiry of three years from the date of publication
of the draft regional plan, development plan or any other plan,
secondly, by enacting sub-section (4) of Section 126 that if a
declaration is not made within the period referred to in sub-section
(2), the State Government may make a fresh declaration but, in
that event, the market value of the land shall be the market value
at the date of the declaration under Section 6 and not the market
value at the date of the notification under Section 4, and thirdly, by
Section 127 that if any land reserved, allotted or
designated for
any purpose in any development plan is not acquired by agreement
within 10 years from the date on which a final regional plan or
development plan comes into force or if proceedings for the
acquisition of such land under the Land Acquisition Act are not
commenced within such period, such land shall be deemed to be
released from such reservation, allotment or designation and
become available to the owner for the purpose of development on
the failure of the Appropriate Authority to initiate any steps for its
acquisition within a period of six months from the date of service
of a notice by the owner or any person interested in the land. It
cannot be doubted that a period of 10 years is long enough. The
Development or the Planning Authority must take recourse to
acquisition with some amount of promptitude in order that the
compensation paid to the expropriated owner bears a just relation
to the real value of the land as otherwise, the compensation paid
for the acquisition would be wholly illusory. Such fetter on statutory
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powers is in the interest of the general public and the conditions
subject to which they can be exercised must be strictly followed.”
(Emphasis supplied)
16. In Girnar Traders v. State of Maharashtra and others7, the
majority view was that a literal interpretation of Section 127 of the Act
would result in injustice. The question, which was posed, actually was
what is required to be done by the Authority on receipt of a notice under
Section 127 of the Act from the owner of land subjected to restrictions
by way of a Development Plan, inter alia. The dissenting Judge, P.K.
Balasubramanium, J., took the view that all that is required to be done
when a notice is issued under Section 127 of the Act was that the Authority
under the Act was to make an application for acquisition under the Land
Acquisition Act and nothing more. The learned Judge went on to hold
that the Authority cannot set in motion proceeding under the Land
Acquisition Act while acting under Section 126 (1) of the Act. The
majority view, however, was that resorting to the plain meaning of the
words would cause palpable injustice. The Court took the view as follows:
“54.  … If the acquisition is left for time immemorial in the
hands of the authority concerned by simply making an application
to the State Government for acquiring such land under the LA
Act, 1894, then the authority will simply move such an application
and if no such notification is issued by
the State Government for
one year of the publication of the draft regional plan under Section
126(2) read with Section 6 of the LA Act, wait for the notification
to be issued by the State Government by exercising suo motu
power under sub-section (4) of Section 126; and till then no
declaration could be made under Section 127 as regards lapsing
of reservation and contemplated declaration of land being released
and available for the landowner for his utilisation as permitted
under Section 127. Section 127 permitted inaction on the part of
the acquisition authorities for a period of 10 years for dereservation
of the land. Not only that, it gives a further time for either to
acquire the land or to take steps for acquisition of the land within
a period of six months from the date of service of notice by the
landowner for dereservation. The steps towards commencement
of the acquisition in such a situation would necessarily be the
steps for acquisition and not a step which may not result into
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acquisition and merely for the purpose of seeking time so that
Section 127 does not come into operation.”
(Emphasis supplied)
17. Thus, it was concluded that the steps towards acquisition would
really commence when the State Government permits acquisition, and
as a result thereof, publishes the declaration under Section 6 of the Act.
The Constitution Bench of this Court in Girnar 3 (supra), has taken note
of the view of the majority judgment in course of its judgment which,
inter alia, dealt with the question as to whether Section 11A of the Land
Acquisition Act applies to proceedings under the Act under the chapter
relating to acquisition. This Court took the view that Section 11A does
not apply.
18. In Shrirampur Municipal Council v. Satyabhamabai Bhimaji
Dawkher8, the question which was considered, before a Bench of three
learned Judges was, whether reservation of lands would lapse if no steps
were commenced within six months under Section 127 of the Act. This
Court found no conflict between Municipal Corporation of Greater
Bombay (supra) and Girnar 2 (supra). This Court held as follows:
“29. The aforesaid judgment lays down that since more
than 20 years had elapsed since the date of the purchase notice
under Section 49 on the facts of that case, the land will have to be
released from acquisition. No doubt this Court held that over 20
years is an inordinately long period of delay, and therefore, lapsing
has taken place under Section 127 of the MRTP
Act. However,
on the facts of that case, no purchase notice under Section 127
was issued after 10 years had elapsed from the date of publication
of the requisite plan. This being the case, we read the judgment
as having allowed a lapse to take place, in view of the inordinately
long delay of over 20 years, by really doing complete justice on
the facts of that case under Article 142 of the Constitution of
India.
30. In the present case, 15 years have passed since the
date of publication of the development plan, and over 10 years
have passed since the date of the purchase notice issued under
Section 49. Considering the fact that there has been no stay at
any stage by any court, it is clear that an inordinately long period
8 (2013) 5 SCC 627
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of time has elapsed, both since the date of publication of the
development plan, as well as the date of the purchase notice served
under Section 49. No doubt, the letter of 26-9-2008 shows that an
application was made within the requisite time period to acquire
the aforesaid land. However, on the facts of this case, since after
the aforesaid letter nothing has been done to acquire the appellant’s
property, we are of the view that the reservation contained in the
development plan as well as acquisition proposal have lapsed. We
make it clear that we hold this in order to do complete justice
between the parties under Article 142 of the Constitution of India.
However, in all future cases that may arise under the provisions
of Section 49, the drill of Section 127 must be followed i.e. that
after 10 years have elapsed from the date of publication of the
relevant plan, a second purchase notice must be served in
accordance with the provisions of Section 127, in order that lapsing
can take place under the aforesaid section. With these observations,
the appeal is disposed of.”
19. Finally, the Court also held as follows:
“45. In our view, the observations contained in para 133 of
Girnar Traders (3) [Girnar Traders (3) v. State of Maharashtra,
(2011) 3 SCC 1] unequivocally support the majority judgment in
Girnar Traders (2) [Girnar Traders (2) v. State of Maharashtra,
(2007) 7 SCC 555] .”
20. In Bhavnagar University (supra), the
case arose under the
Gujarat Town Planning and Urban Development Act, 1976. Therein,
this Court considering the provision similar to the provisions of the Act
(Section 20 of the Act in the said case corresponded to Section 127 of
the Act), took the view that though under Section 21 of the Gujarat Act,
a duty was cast to revise the Development Plan, the rights of the owners
under Section 20(2) of the Act would not be taken away. We need only
refer to paragraph 38 of the judgment, which reads as follows:
“38. Section 21 does not envisage that despite the fact that
in terms of sub-section (2) of Section 20, the designation of land
shall lapse, the same, only because a draft revised plan is made,
would automatically give rise to revival thereof. Section 20 does
not manifest a legislative intent to curtail or take away the right
acquired by a landowner under Section 22 of getting the land
defreezed. In the event the submission of the learned Solicitor-
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General is accepted the same would completely render the
provisions of Section 20(2) otiose and redundant.”
(Emphasis supplied)
21. In Prafulla C. Dave and others v. Municipal Commissioner
and others9, this Court, again, considered the provisions of Section 127
of the Act. The facts therein may be noticed briefly as follows:
There was a Development Plan notified on 08.07.1966. The land
of the appellant was kept under reservation for a garden. The land was
not acquired under any of the modes in Section 126 of the Act prior to
the sanction of the revised Development Plan dated 05.01.1987. The
finally revised Development Plan dated 05.01.1987 was preceded by a
draft revised Plan published in 1982. No notice under Section 127 of the
Act was issued by the owner or any person interested in the land prior to
the purchase of the land by the appellants from the original owners in
the year 1989. The appellant served notice dated 05.10.1989. On a
direction by the High Court, the notice under Section 127 of the Act was
found premature by the Authority as it was issued before completion of
ten years from the date of the revised Development Plan. The contention
of the respondent-Municipal Commissioner was that a revised Plan under
Section 38 tantamounted to a complete Development Plan under Sections
21 to 30 of the Act. The period of ten years under Section 127 of the Act
would necessarily run from the date of coming into force of such revised
Plan. The contention of
the respondent also was that under the Gujarat
Act, certain provisions found in the Act are absent and Bhavnagar
University (supra) was distinguished, inter alia. This Court proceeded
to hold in Prafulla C. Dave (supra), inter alia, as follows:
“21. … 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 landowner 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 landowner 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 landowner,
that is, after the revised plan has been finalised and published will
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not invalidate the reservation, allotment or designation that may
have been made or continued in the revised plan. …”
(Emphasis supplied)
22. In a recent judgment, considering a case under Section 49 of
the Act, a Bench of two learned Judges in Chhabildas (supra) has
considered the interplay of Sections 49, 126 and 127 of the Act. The
Court took the view as follows:
“14. A purchase notice may be served under Section 49,
after the expiry of one year from the date of publication of the
plan in question, in which case Section 126(2) of the Act will not
apply. Under Section 126(4), the State Government may make a
declaration under Section 6 subject to the modification that the
market value of the land shall be the market value at the date of
the declaration in the Official Gazette made for acquiring the land.
But this does not mean that the State Government has carte
blanche to do as it pleases. Ordinarily, the State Government is
bound to act under Section 126(4) within a reasonable time from
the appropriate authority making an application to acquire the land.
This should ordinarily be within a period of one year from the date
such an application is made. However, if such declaration is not
made within the aforesaid period, it will be open for the aggrieved
person to move the Court to direct the State Government to make
the requisite declaration immediately.
15. But the matter does not end here. Thereafter, Section
127
kicks in. If a declaration under Section 6 of the Land Acquisition
Act is not made within a period of 10 years from the date on
which a plan comes into force under sub-section (4) of Section
126, the owner or any person interested in the land may serve a
purchase notice on the authorities, and if within one year from the
date of 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.”
23. This Court, however, noticed the judgment in Hasmukhrai V.
Mehta v. State of Maharashtra and others10 and held as follows:
“29. The aforesaid judgment lays down that since more
than 20 years had elapsed since the date of the purchase notice
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under Section 49 on the facts of that case, the land will have to be
released from acquisition. No doubt this Court held that over 20
years is an inordinately long period of delay, and therefore, lapsing
has taken place under Section 127 of the MRTP Act. However,
on the facts of that case, no purchase notice under Section 127
was issued after 10 years had elapsed from the date of publication
of the requisite plan. This being the case, we read the judgment
as having allowed a lapse to take place, in view of the inordinately
long delay of over 20 years, by really doing complete justice on
the facts of that case under Article 142 of the Constitution of
India.
30. In the present case, 15 years have passed since the
date of publication of the development plan, and over 10 years
have passed since the date of the purchase notice issued under
Section 49. Considering the fact that there has been no stay at
any stage by any court, it is clear that an inordinately long period
of time has elapsed, both since the date of publication of the
development plan, as well as the date of the purchase notice served
under Section 49. No doubt, the letter of 26-9-2008 shows that an
application was made within the requisite time period to acquire
the aforesaid land. However, on the facts of this case, since after
the aforesaid letter nothing has been done to acquire the appellant’s
property, we are of the view that the reservation contained in the
development plan as well as
acquisition proposal have lapsed. We
make it clear that we hold this in order to do complete justice
between the parties under Article 142 of the Constitution of India.
However, in all future cases that may arise under the provisions
of Section 49, the drill of Section 127 must be followed i.e. that
after 10 years have elapsed from the date of publication of the
relevant plan, a second purchase notice must be served in
accordance with the provisions of Section 127, in order that lapsing
can take place under the aforesaid section. With these observations,
the appeal is disposed of.”
24. Shri Naphade, learned Senior Counsel, inspired by the views
expressed by this Court in Hasmukhrai V. Mehta (supra) Chhabildas
(supra), would submit that this is a case where the Development Plan
was finalized under Section 31 of the Act in the year 1984, more than 35
years. Neither is there any sign of land of the appellants being acquired
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nor are the appellants being extricated from the rigor of the reservation
made of their lands. Under the Development Plan, the land of the
appellants is reserved for use as a shopping complex and a vegetable
market.
25. The right would accrue to the owner under Section 127 of the
Act to serve notice thereunder only if a declaration is not published
within ten years of the Development Plan under Section 126(4) of the
Act, inter alia. The High Court has, undoubtedly, noticed that the final
Development Plan came into force on 24.08.1984. It further noticed
that there is a declaration or Notification under Section 126(4) of the
Act on 03.09.1992. This means, within ten years from 24.08.1984, there
is action, as contemplated under Section 126(4) of the Act. Under Section
127 of the Act, therefore, any notice which was given may not hold good
going by the letter of the law.
26. In this case, it is clear that the appellants are governed by the
Act. There is no dispute that invoking Section 38 of the Act that a revised
final Development Plan has come into effect from 15.05.2012. It is
undoubtedly true that the reservation under the original Development
Plan dated 24.08.1984 would cease to impact the appellants if the notice
under Section 127 of the Act was issued on the passage of ten years
from 24.08.1984 and, if action under Section 127 of the Act was not
taken. It is true that notice dated 09.06.2004 was issued by the
predecessor in title of the appellants. This is not a case where there was
inaction on the part of the previous owners of the property upon the
expiry of ten years from the date of the final Development Plan in 1984.
The problem for appellants, however, is the action on the part of the
respondent issuing declaration under Section 126(4) of the Act on
03.09.1992. Lapsing of reservation contemplated under Section 127 of
the Act will occur only if the conditions mentioned therein are fulfilled.
The indispensable conditions is that after the reservation of the land,
inter alia, under any Plan, for a period of ten years, the land is not
acquired by agreement within that period or proceedings for acquisition
under the Act, i.e., declaration under Section 126(4) of the Act, inter
alia, is not published within the said period. If either of the two conditions
exist, a notice is to be issued setting in motion the process for lapsing
reservation. If, before issuance of notice, action is already taken by
issuance of notification/declaration by the respondent within ten years
of the final Development Plan, it will render the notice ineffective in law.
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The result is that the High Court was right in finding that the appellant
was not entitled to the relief based on lapsing of reservation under Section
127 of the Act. This is a case, therefore, where the Development Plan
also stood revised under Section 38 of the Act, bringing in consequences,
as noticed by this Court in Prafulla C. Dave (supra).
27. Therefore, this is a case where the reservation under the Plan
dated 24.08.1984, which was the final Development Plan, had not lapsed
and it was finally revised under Section 38 of the Act. It is not in dispute
that the property of the appellants had been reserved originally for the
purpose of shopping complex, and under the revised Development of
2012, for shopping complex and vegetable market.
28. The contention of the appellants is, however, that the draft
revised Plan was prepared on 29.11.2007 which is after 20 years of the
publication of the Development Plan and it was finalized in the year
2012.
29. Proceeding on the basis of the contention of the appellant that
since the revised Development Plan was issued more than 20 years
from the issuance of the initial final Development Plan on 24.08.1984,
and therefore, revised Plan issued on 24.09.2007, is not to have effect
even then the original Development Plan issued on 24.08.1984 would
continue to hold good. There is no dispute that reservation under both
the Plans in respect of the appellants properties are the same. In such
circumstances, there can be no
merit in the contention.
30. The contention is not seen taken before the Court. Section 38
of the Act reads as follows:
“38. Revision of Development plan:- At least once in 20
[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 4[twenty years] from the date on
which the last part has come into operation, a Planning Authority
may 3 [and shall at any time when so directed by the State
Government], revise the Development plan 4 [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 5 [* * *] 22, 23, 24, 25,
26, 27, 28, 29, 30 and 31 shall, so far as they can be made
applicable, apply in respect of such revision of the Development
plan.”
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31. What is contemplated under the said provision is that the
Planning Authority may at least once in 20 years from the date on which
a Development Plan has come into operation, inter alia, (the period of
20 years been calculated from the date on which, it came into operation)
revise the Development Plan. The provisions of Sections 22, 23, 24, 25,
26, 27, 28, 30 and 31 were to apply in this regard. The final Development
Plan in this case came into force on 24.08.1984. The draft Revised Plan
was issued on 24.09.2007 and the final revised Development Plan was
issued with effect from 15.05.2012. The further provision in Section 38
of the Act is that if the Government directs the revision of the Plan, the
Planning Authority shall revise the Plan. It may be at any time. In other
words, the scheme would appear to be that even before the completion
of 20 years, it is open to the Government to direct the Planning Authority
to undertake the revision of an existing Development Plan. In such a
case, the word used is shall and there is no discretion and the Planning
Authority is to revise the Plan. State Government can issue the direction
at any time without waiting for the period of 20 years. AS far as the
Planning Authority undertaking revision on its own, it is discretionary. As
regards the time limit being breached, in the facts of this case, we are
unable to agree. It is not stipulated in Section 38 of the Act that the
revision must be undertaken and finalized immediately before the expiry
of 20 years from the date of the original final Development Plan. A
period of 20 years is to run out from original Development Plan in a case
where the Planning Authority wishes to exercise power of revision of
the Plan. That is not the same thing as saying that the revised Plan is to
be brought into force before the expiry of 20 years. In this case, it is also
not clear whether the Planning Authority undertook the revision following
the direction of the Government.
32. The only aspect which remains is whether this is a case which
calls for the exercise of powers under Article 142 of the Constitution of
India. The sheet anchor of the appellants case appears to be the decision
of this Court in Chhabildas (supra), which we have already referred to
above. In this case, the declaration has been issued under Section 126(4)
of the Act on 03.09.1992. The effect of the declaration under Section
126(4) is that the value of the land was to be determined with reference
to the date of the declaration. If declaration is made under Section 126(2)
of the Act, the valuation is pushed back to the date of the draft
Development Plan. What is actually contemplated would appear to be
that after the declaration under Section 126(4), the matter must be
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followed up with reasonable dispatch. In other words, under the law
relating to land acquisition, further steps will be taken culminating in an
Award. In this case, on the other hand it is not in dispute that no steps
were taken for acquiring the land for more than two decades. It is in the
meantime that the revised Development Plan has come into being on
15.05.2012. Since no declaration has been made under Section 126(2)
of the Act under the revised Plan and the period has run out as
contemplated in the proviso to Section 126(2), the only way out for the
respondent would be to bring out a declaration under Section 126(4) of
the Act. In such an eventuality, the value of the properties would have to
be determined with reference to the date of such declaration under Section
126(4) of the Act. Therefore, if the property of the appellants is to be
acquired, the appellants would have to be given the value of the property
as on the date on which any such declaration is made under Section
126(4) of the Act within ten years from 15.05.2012.
33. In Hasmukhrai V. Mehta (supra), the case was decided under
the Act. In the impugned order, the High Court had dismissed the Writ
Petition of the appellant, inter alia, finding that such Plan was finalized
in March, 2003 and the period of ten years had not elapsed and no
benefit could be given. The Court took note of the fact that in T.
Vijayalakshmi and others v. Town Planning Member and another11, this
Court had declared
that the right of a person to construct residential
houses in a residential area is a valuable right and also considered that
the appellant had been granted permission and commencement certificate
on 03.04.1990 under the Development Plan under which the property of
the appellant was included under the residential zone and the Plan was
also sanctioned. It is thereafter, on 14.01.1999, the appellants were
informed about the fresh development scheme including the appellants
land as reserved for agricultural produce market yard. In these
circumstances, inter alia, the Court, taking note of the fact that since no
steps appear to have been taken till date for the last more than 20 years,
either for acquiring land or purchasing land under the Act, the lands
were to stand released under Section 127 of the Act.
34. In the judgment in Chhabildas (supra), this Court referred to
the aforesaid judgment and holds that the said judgment lays down that
since more than 20 years have elapsed since the date of purchase notice
under Section 49 of the Act, on the facts of that case, the lands will have
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to be released from acquisition. Thereafter, this Court proceeds to notice
that in the said case [Hasmukhrai V. Mehta (supra)], no purchase notice
under Section 127 of the Act was issued after ten years had elapsed.
Thereafter, this Court proceeded to hold that this being the case the
judgment was understood as one which was passed under Article 142 of
the Constitution of India in view of the inordinate delay of over twenty
years. Thereafter, Court took note of the facts of the case before it and
found that fifteen years had passed since the publication of the
Development Plan and over ten years passed since date of purchase
notice under Section 49 of the Act. The Court proceeded to invoke Article
142 of the Constitution of India and found that the reservation and the
acquisition proposals stood lapsed. However, it was made clear that in
future cases that may arise under Section 49 of the Act, the procedure
under Section 127 of the Act must be followed which means that after
ten years had lapsed, a second purchase notice had to be served under
Section 127 of the Act in order that lapsing could take place under the
said Section.
35. Now, it is time to consider the impact of the letters dated
6/7.04.2005 issued by the Municipal Council. Therein, it is stated by the
Chief Executive Officer that in the Resolution dated 15.02.2005, the
land reserved no. 137 for shopping complex in Khasra Nos. 406, 407,
410 and 411, total
land measuring 4928 square meters in village Gondia
shall not be purchased. Resolution dated 15.02.2005 also appears to
suggest that the reservation under Section 127 of the Act is released.
The appellants would appear to contend that this should by itself cannot
decide the matter. As to whether there is a lapsing of reservation under
Section 127 of the Act, would be a matter to be decided in terms of the
said Statute. Also, after the Resolution in the revised Plan, the reservation
is reiterated.
36. The only question is whether it is to be ignored in deciding
whether we should invoke Article 142 of the Constitution of India. On
24.08.1984, the final Development Plan is published. On 03.09.1992, the
declaration under Section 126(4) of the Act was published. After expiry
of ten years from 24.08.1984, notice was given by the previous owners
on 09.06.2004. Thereafter, draft revised draft Plan publication was made
on 29.11.2007. Still, thereafter, on 15.05.2012, a final revised Development
Plan was published. Although, under the original final Development Plan
dated 24.08.1984, the property of the appellants was reserved for
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shopping complex, and under the revised final Development Plan dated
15.05.2012, the appellants lands have been subjected to the reservation
that it is meant for use as shopping complex and vegetable market, apart
from issuing the declaration, under Section 126(4) of the Act in the year
1992, there is no declaration issued under the revised Plan dated
15.05.2015. While, it is true that the original final Development Plan
came into force on 24.08.1984 and the revised Development Plan came
into force in the year 2012, one crucial fact cannot be overlooked.
Admittedly, the appellants purchased lands from the erstwhile owners
only on 02.01.2006.  Therefore, on the facts, particularly, having regard
to the fact that they have purchased the property apparently knowing
that the property was subjected to reservation, and as also we have
found that their case, based on the notice of previous owners, would not
hold good in law and as the subsequent revision of the Plan has come
into force with effect from 15.05.2012, we do not find that this is a case
where we should exercise our powers under Article 142 of the
Constitution. Appellants cannot be compared with the appellant in
Hasmukhrai V. Mehta (supra) as the appellant therein was a person
who was favoured with a permission to develop his land on the basis
that the land was meant for residential purpose and it was he who went
to court and the lapse of twenty years was in the context found to have
a deep impact.
37. The appellants must wait for a period of ten years under Section
127 of the Act from 15.05.2012 and then can issue notice contemplated
under the Act. That is, within a period of little over two years from now,
appellants would have a cause of action to give notice under Section 127
of the Act unless action is already taken in the meantime. No doubt, we
would expect that the respondents would be alive to the object of the
Statute and also the rights of the owners and will not act mechanically
and unfairly in the matter in the future. As far as invoking Section 49 of
the Act, we do not express any view. Leaving open all the remedies
available to the appellants, the appeal shall stand dismissed.
38. There shall be no order as to costs.
Divya Pandey
Appeal dismissed.
MOHANDAS AND OTHERS v. THE STATE OF
MAHARASHTRA AND OTHERS [K. M. JOSEPH, J.]