MOHANDAS & Ors. v. THE STATE OF MAHARASHTRA & Ors.

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, A B C D E F G H MOHANDAS AND OTHERS v. THE STATE OF MAHARASHTRA AND OTHERS 475 (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 A B C D E F G H 476 SUPREME COURT REPORTS [2020] 3 S.C.R. A B C D E F G H 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 MOHANDAS AND OTHERS v. THE STATE OF MAHARASHTRA AND OTHERS 477 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 A B C D E F G H 478 SUPREME COURT REPORTS [2020] 3 S.C.R. 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 [2018] 1 SCR 411 [1988] SCR 21 [2007] 9 SCR 383 [2011] 3 SCR 1 [2013] 2 SCR 664 [2014] 13 SCR 1397 referred to referred to referred to referred to referred to relied on [2014] 11 SCR 377 distinguished [2006] 7 Suppl. SCR 534 referred to Para 8 Para 8 Para 10 Para 10 Para 10 Para 18 Para 21 Para 23 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: A B C D E F G H MOHANDAS AND OTHERS v. THE STATE OF MAHARASHTRA AND OTHERS [K. M. JOSEPH, J.] 479 “(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 A B C D E F G H 480 SUPREME COURT REPORTS [2020] 3 S.C.R. A B C D E F G H 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 MOHANDAS AND OTHERS v. THE STATE OF MAHARASHTRA AND OTHERS [K. M. JOSEPH, J.] 481 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