# CHHABILDAS v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2018] 1 S.C.R. 411
- **Court:** Supreme Court of India
- **Decided:** 2018-02-06
- **Case number:** Civil Appeal No. 1607 of 2018
- **Bench:** R. F. Nariman, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chhabildas-v-the-state-of-maharashtra-ors-32570
- **Pages:** 24

## Headnote

Maharashtra Regional Town Planning Act, 1966 - ss.49, 126,
127 - Obligation to acquire land on refusal of permission or on
grant of permission in certain cases - On facts, appellant's land
reserved for public purpose under a development plan - Issuance
of purchase notice u/s.49(1)(e) - State Government confirmed the
purchase notice and stated that proceedings for acquisition of land
would be initiated within one year - Submission of proposal for
acquisition, however, no action taken - Letter by the owner to the
Commissioner that since no action took place, the said proposal
has lapsed and thus, the land to be returned to the owner - However,
the Commissioner's stand that acquisition proposal is in process
and there was no lapse - Writ petition by appellant - Dismissed by
the High Court - Held: Section 49(1) itself states that the purchase
notice must require the appropriate authority to purchase the interest
in the land "in accordance with the provisions of this Act" - Once
the appropriate authority makes the necessary application to acquire
the land within time u/s.49(7), the Court moves over to ss.126 and
127 - Scheme of ss.126 and 127 makes it clear that if 10 years
have passed from the date of publication of the development plan,
and purchase notice has been served u/s. 127, and no steps have
been taken within one year from the date of service of such notice,
all proceedings shall be deemed to have lapsed - Thus, even in
cases covered by s. 49, the drill of s.126(4) and s.127 will have to
be followed, subsequent to the appropriate authority making an
application to acquire the land within the period specified in s. 49(7)
- In the instant 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 u/s.49 - Letter shows
that an application was made within the requisite time period to
acquire the said land - However, since after the said letter nothing
[2018] 1 S.C.R. 411
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has been done to acquire the appellant's property, the reservation
contained in the development plan as well as acquisition proposal
have lapsed, in order to do complete justice between the parties u/
Art. 142 - Constitution of India - Art. 142.
Disposing of the appeal, the Court
HELD: 1.1 The object of Section 49 of the Maharashtra
Regional Town Planning Act, 1966 is clear that once a purchase
notice is received by the authorities, there arises, as the marginal
note to the Section also indicates, an obligation to acquire land.
The timelines contemplated by the section also indicate that the
owner or person affected cannot be left to hang indefinitely without
a decision to follow up the purchase notice by acquisition of the
land in question. However, the submission that Section 49
abruptly ends with sub-section (7), after which there are no
timelines indicated as to what is to happen after the appropriate
authority makes an application to acquire the land within one year
from the date of confirmation of the notice, cannot be accepted.
Inasmuch as Section 49(1) itself states that the purchase notice
must require the appropriate authority to purchase the interest
in the land "in accordance with the provisions of this Act". This
being so, once the appropriate authority makes the necessary
application to acquire the land within time under Section 49(7),
the Court moves over to Sections 126 and 127 of the Act. [Paras
12, 13][423-H; 424-A-C]
1.2 Under Section 126(1)(c), when after the publication of a
draft regional plan or development or other plan, any land is
required or reserved for a public purpose, the appropriate
authority may make an application to the State Government, for
acquiring such land under the Land Acquisition Act. Under subsection (2) thereof, on receipt of such application, if the State
Government is satisfied that the land specified in the application
is needed for the public purpose sp

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CHHABILDAS
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No. 1607 of 2018)
FEBRUARY 06, 2018
[R. F. NARIMAN AND NAVIN SINHA, JJ.]
Maharashtra Regional Town Planning Act, 1966 - ss.49, 126,
127 - Obligation to acquire land on refusal of permission or on
grant of permission in certain cases - On facts, appellant's land
reserved for public purpose under a development plan - Issuance
of purchase notice u/s.49(1)(e) - State Government confirmed the
purchase notice and stated that proceedings for acquisition of land
would be initiated within one year - Submission of proposal for
acquisition, however, no action taken - Letter by the owner to the
Commissioner that since no action took place, the said proposal
has lapsed and thus, the land to be returned to the owner - However,
the Commissioner's stand that acquisition proposal is in process
and there was no lapse - Writ petition by appellant - Dismissed by
the High Court - Held: Section 49(1) itself states that the purchase
notice must require the appropriate authority to purchase the interest
in the land "in accordance with the provisions of this Act" - Once
the appropriate authority makes the necessary application to acquire
the land within time u/s.49(7), the Court moves over to ss.126 and
127 - Scheme of ss.126 and 127 makes it clear that if 10 years
have passed from the date of publication of the development plan,
and purchase notice has been served u/s. 127, and no steps have
been taken within one year from the date of service of such notice,
all proceedings shall be deemed to have lapsed - Thus, even in
cases covered by s. 49, the drill of s.126(4) and s.127 will have to
be followed, subsequent to the appropriate authority making an
application to acquire the land within the period specified in s. 49(7)
- In the instant 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 u/s.49 - Letter shows
that an application was made within the requisite time period to
acquire the said land - However, since after the said letter nothing
[2018] 1 S.C.R. 411
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has been done to acquire the appellant's property, the reservation
contained in the development plan as well as acquisition proposal
have lapsed, in order to do complete justice between the parties u/
Art. 142 - Constitution of India - Art. 142.
Disposing of the appeal, the Court
HELD: 1.1 The object of Section 49 of the Maharashtra
Regional Town Planning Act, 1966 is clear that once a purchase
notice is received by the authorities, there arises, as the marginal
note to the Section also indicates, an obligation to acquire land.
The timelines contemplated by the section also indicate that the
owner or person affected cannot be left to hang indefinitely without
a decision to follow up the purchase notice by acquisition of the
land in question. However, the submission that Section 49
abruptly ends with sub-section (7), after which there are no
timelines indicated as to what is to happen after the appropriate
authority makes an application to acquire the land within one year
from the date of confirmation of the notice, cannot be accepted.
Inasmuch as Section 49(1) itself states that the purchase notice
must require the appropriate authority to purchase the interest
in the land "in accordance with the provisions of this Act". This
being so, once the appropriate authority makes the necessary
application to acquire the land within time under Section 49(7),
the Court moves over to Sections 126 and 127 of the Act. [Paras
12, 13][423-H; 424-A-C]
1.2 Under Section 126(1)(c), when after the publication of a
draft regional plan or development or other plan, any land is
required or reserved for a public purpose, the appropriate
authority may make an application to the State Government, for
acquiring such land under the Land Acquisition Act. Under subsection (2) thereof, on receipt of such application, if the State
Government is satisfied that the land specified in the application
is needed for the public purpose specified therein, then excepting
the cases falling under Section 49, the State Government may
make a declaration under Section 6 of the Land Acquisition Act,
to that effect. However, such declaration under Section 126(2)
must be made within a period of one year from the date of
publication of the plan in question. [Para 14][424-D-F]
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1.3 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 said period, it would be open for the
aggrieved person to move the Court to direct the State
Government to make the requisite declaration immediately.
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 subsection (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. [Paras 15, 16][424-G-H; 425-A-C]
1.4 In all Section 49 cases, where a purchase notice has
been served and is confirmed within the period specified, the
appropriate authority must make an application to acquire the
land within one year from the date of confirmation of the notice.
If it does not do so, the reservation, designation, etc. shall be
deemed to have lapsed. If within the period specified in Section
49(7), the appropriate authority makes the requisite application,
then the State Government may acquire the land by making a
declaration under Section 6 of the Land Acquisition Act as set
out u/s.nder Section 126(4), wherein the market value shall be
the market value of the land as on the date of the Section 6
declaration. Ordinarily, such declaration must be made within 1
year of the date of receipt of the requisite application. In case
CHHABILDAS v. THE STATE OF MAHARASHTRA & ORS.
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this not done, it will be open to the aggrieved person to move
the Court to direct the State Government to make the requisite
declaration immediately. If 10 years have passed from the date of
publication of the plan in question, and a purchase notice has
been served u/s. 127, and no steps have been taken within a
period of one year from the date of service of such notice, all
proceedings shall be deemed to have lapsed. Thus, even in cases
covered by s. 49, the drill of s. 126(4) and s. 127 will have to be
followed, subsequent to the appropriate authority making an
application to acquire the land within the period specified in
s. 49(7). [Para 24][431-B-G]
1.5 In the instant 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 facts, since after the said
letter nothing has been done to acquire the appellant's property,
the reservation contained in the development plan as well as
acquisition proposal have lapsed. It is made clear that this is held
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. [Para 31][433-F-H; 434-A-B]
Girnar Traders v. State of Maharashtra (2007) 7 SCC
555 : [2007] 9 SCR 383; Municipal Corporation of
Greater Bombay v. Dr. Hakimwadi Tenants Association
& Ors. (1988) Suppl. SCC 55 : [1988] SCR 21;
Shrirampur Municipal Council v. Satyabhamabai
Bhimaji Dawkher (2013) 5 SCC 627: [2013] 2 SCR
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664; Prakash R. Gupta v. Lonavala Municipal Council
and others (2009) 1 SCC 514 : [2008] 16 SCR 1067;
Hasmukhrai V. Mehta v. State of Maharashtra & Ors.
(2015) 3 SCC 154 : [2014] 11 SCR 377 - referred to.
Case Law Reference
[2007] 9 SCR 383
referred to
Para 17
[1988] SCR 21
referred to
Para 20
[2013] 2 SCR 664
referred to
Para 22
[2008] 16 SCR 1067
referred to
Para 25
[2014] 11 SCR 377
referred to
Para 27
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1607
of 2018.
From the Judgment and Order dated 05.12.2014 of the High Court
of Judicature of Bombay Bench at Aurangabad in Writ Petition No.
4605 of 2014.
Vinayak Dixit, Sr. Adv., Nachiketa Joshi, Santosh Kumar, Advs.
for the Appellant.
Ms. Astha Deep, S. M. Jadhav, Nicholas Chaudhary, Bri Kishore
Sah, M/s. S. M. Jadhav and Company, Satyajit A. Desai, Nishant
Ramakantrao Katneshwarkar, Advs. for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. Leave granted.
2. The present case concerns a purchase notice issued under
Section 49 of the Maharashtra Regional Town Planning Act, 1966
(hereinafter referred to as "the Act") and, in particular, the effect of
Sub-section (7) thereof. The aforesaid Section 49 along with other
relevant provisions of the Act, as they stood at the relevant time, are
reproduced hereunder:
Section 49 - Obligation to acquire land on refusal of
permission or on grant of permission in certain cases. - (1)
Where-
(a) any land is designated by a plan as subject to compulsory
acquisition, or
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(b) any land is allotted by a plan for the purpose of any functions
of a Government or local authority or statutory body, or is
land designated in such plan as a site proposed to be
developed for the purposes of any functions of any such
Government, authority or body, or
(c) any land is indicated in any plan as land on which a highway
is proposed to be constructed or included, or
(d) any land for the development of which permission is refused
or is granted subject to conditions, and any owner of land
referred to in clause (a), (b), (c) or (d) claims-
(i) that the land has become incapable of reasonably
beneficial use in its existing state, or
(ii) where planning permission is given subject to conditions
that the land cannot be rendered capable of reasonably
beneficial use by the carrying out of the permitted
development in accordance with the conditions; or
(e) the owner of the land because of its designation or allocation
in any plan claims that he is unable to sell it except at a lower
price than that at which he might reasonably have been excepted
to sell if it were not so designated or allocated, the owner or
person affected may serve on the State Government within
such time and in such manner, as is prescribed by regulations,
a notice (hereinafter referred to as "the purchase notice ")
requiring the Appropriate Authority to purchase the interest in
the land in accordance with the provisions of this Act.
(2) The purchase notice shall be accompanied by a copy of any
application made by the applicant to the Planning Authority, and
of any order or decision of that Authority and of the State
Government, if any, in respect of which the notice is given.
(3) On receipt of a purchase notice, the State Government shall
forthwith call from the Planning Authority and the Appropriate
Authority such report or records or both, as may be necessary,
which those authorities shall forward to the State Government as
soon as possible but not later than thirty days from the date of
their requisition.
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(4) On receiving such records or reports, if the State Government
is satisfied that the conditions specified in sub-section (1) are
fulfilled, and that the order or decision for permission was not
duly made on the ground that the applicant did not comply with
any of the provisions of this Act or rules or regulations, it may
confirm the purchase notice, or direct that planning permission be
granted without condition or subject to such conditions as will
make the land capable of reasonably beneficial use. In any other
case, it may refuse to confirm the purchase notice, but in that
case, it shall give the applicant a reasonable opportunity of being
heard.
(5) If within a period of six months from the date on which a
purchase notice is served the State Government does not pass
any final order thereon, the notice shall be deemed to have been
confirmed at the expiration of that period.
(6) Omitted.
(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.
Section 50 - Deletion of reservation of designated land for
interim, draft of final Development plan - (1) The Appropriate
Authority (other than the Planning Authority), if it is satisfied that
the land is not or no longer required for the public purpose for
which it is designated or reserved or allocated in the interim or the
draft Development plan or plan for the area of Comprehensive
development or the final Development plan, may request-
(a) the Planning Authority to sanction the deletion of such
CHHABILDAS v. THE STATE OF MAHARASHTRA & ORS.
[R. F. NARIMAN, J.]
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designation or reservation or allocation from the interim or
the draft Development plan or plan for the area of
Comprehensive development, or
(b) the State Government to sanction the deletion of such
designation or reservation or allocation from the final
Development plan.
(2) On receipt of such request from the Appropriate Authority,
the Planning Authority, or as the case may be, the State Government
may make an order sanctioning the deletion of such designation
or reservation or allocation from the relevant plan:
Provided that, the Planning Authority, or as the case may be, the
State Government may, before making any order, make such
enquiry as it may consider necessary and satisfy itself that such
reservation or designation or allocation is no longer necessary in
the public interest.
(3) Upon an order under sub-section (2) being made, the land
shall be deemed to be released from such designation, reservation,
or, as the case may be, allocation 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.
Section 126 - Acquisition of land required for public
purposes specified in plans. - (1) Where after the publication
of a draft Regional Plan, a Development or any other plan or
Town Planning Scheme, any land is required or reserved for any
of the public purposes specified in any plan or scheme under this
Act at any time the planning Authority, Development Authority, or
as the case may be, any Appropriate Authority may, expect as
otherwise provided in section 113A acquire the land,-
(a) by agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner or
the lessee, subject, however, to the lessee paying the lessor
or depositing with the Planning Authority, Development
Authority or Appropriate Authority, as the case may be, for
payment to the lessor, an amount equivalent to the value of
the lessor's interest to be determined by any of the said
Authorities concerned on the basis of the principles laid
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down in the Land Acquisition Act, 1894(I of 1894), Floor
Space Index (FSI) or Transferable Development Rights
(TDR) against the area of land surrendered free of cost
and free from all encumbrances, and also further additional
Floor Space Index or Transferable Development Rights
against the development or construction of the amenity on
the surrendered land at his cost, as the Final Development
Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894(I
of 1894),and the land (together with the amenity, if any so
developed or constructed) so acquired by agreement or by
grant of Floor Space Index or additional Floor Space Index
or Transferable Development Rights under this section or
under the Land Acquisition Act, 1894(I of 1890), as the
case may be, shall vest absolutely free from all
encumbrances in the Planning Authority, Development
Authority, or as the case may be, any Appropriate Authority.
(2) On receipt of such application, if the State Government is
satisfied that the land specified in the application is needed for the
public purpose therein specified, or if the State Government (except
in cases falling under section 49 and except as provided in section
113A) itself is of opinion that any land included in any such plan is
needed for any public purpose, it may make a declaration to that
effect in the Official Gazette, in the manner provided in section 6
of the Land Acquisition Act, 1894 (I of 1894), in respect of the
said land. The declaration so published shall, notwithstanding
anything contained in the said Act, be deemed to be a declaration
duly made under the said section:
Provided that, subject to the provisions of sub-section (4), no such
declaration shall be made after the expiry of one year from the
date of publication of the draft Regional Plan, Development Plan
or any other Plan, or Scheme, as the case may be.
(3) On publication of a declaration under the said section 6, the
collector shall proceed to take order for the acquisition of the land
under the said Act; and the provisions of that Act shall apply to
the acquisition of the said land with the modification that the market
value of the land shall be, -
CHHABILDAS v. THE STATE OF MAHARASHTRA & ORS.
[R. F. NARIMAN, J.]
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(i) where the land is to be acquired for the purposes of a new
town, the market value prevailing on the date of publication
of the notification constituting or declaring the Development
Authority for such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority the market value prevailing on the date
of publication of the notification of the area as undeveloped
area; and
(iii) in any other case the market value on the date of publication
of the interim development plan, the draft development plan
or the plan for the area or areas for comprehensive
development, whichever is earlier, or as the case may be,
the date or publication of the draft Town Planning Scheme:
Provided that, nothing in this sub-section shall affect the date for
the purpose of determining the market value of land in respect of
which proceedings for acquisition commenced before the
commencement of the Maharashtra Regional and Town Planning
(Second Amendment) Act, 1972 (Mah. XI of 1973):
Provided further that, for the purpose of clause (ii) of this subsection, the market value in respect of land included in any
undeveloped area notified under sub-section (1) of section 40 prior
to the commencement of the Maharashtra Regional and Town
Planning (Second Amendment) Act, 1972 (Mah. XI of 1973), shall
be the market value prevailing on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to sub-section
(2) and sub-section (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 (Amendment) Act, 1993
(Mah. X of 1994), the State Government may make a fresh
declaration for acquiring the land under the Land Acquisition
Act, 1894 (1 of 1894), in the manner provided by sub-sections (2)
and (3) of this section, subject 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.
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Section 127 - Lapsing of reservations. - 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 the proceedings for the acquisition of such
land under this Act or under the Land Acquisition Act, 1894 (1 of
1894), are not commenced within such period, the owner or any
person interested in the land may serve notice on the Planning
Authority, the Development Authority or, as the case may be, the
Appropriate Authority to that effect; and if within twelve months1
from the date of the service of such notice, the land is not acquired
or no steps as aforesaid are commenced for its acquisition, the
reservation, allotment or designation shall be deemed to have
lapsed, and thereupon, the land shall be deemed to be released
from such reservation, allotment or designation and shall become
available to the owner for the purpose of development as otherwise,
permissible in the case of adjacent land under the relevant plan.
3. On 11th February, 2002, the Development Plan of Jalgaon City
was sanctioned by the State Government. The Appellant's land bearing
Gut No.37/1 adm. 42-R, situated at Mauje Pimprala, was reserved for
primary school and play ground.
4. On 7th May, 2007, the Appellant issued a purchase notice under
Section 49(1)(e) of the Act stating that as their land was reserved for
the aforesaid purposes, the owner was unable to sell it, except at a price
lower than that at which it could reasonably be expected to sell, if it was
not so designated.
5. On 12th December, 2007, the State Government confirmed the
aforesaid purchase notice and stated that proceedings for acquisition of
land shall be initiated within one year i.e. before 12th December, 2008 as
per Section 49(7) of the Act.
6. Within the aforesaid period, the Commissioner, Jalgaon, submitted
a proposal for acquisition of the aforesaid land to the Collector, Jalgaon
on 26th September, 2008. This was followed by a letter dated 28th January,
2009 issued by the Collector, appointing the SDO, Jalgaon, to complete
the acquisition process as laid down by the Act. Since nothing further
transpired, the owner of the land wrote a letter to the Commissioner,
 1 'Twelve months' was substituted in place of 'six months' by Act 16 of 2009.
CHHABILDAS v. THE STATE OF MAHARASHTRA & ORS.
[R. F. NARIMAN, J.]
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Jalgaon on 15th January, 2014, stating that since no action has taken
place in furtherance of the acquisition proposal, the said proposal has
lapsed and that, therefore, the land should be returned to the owner. On
28th March, 2014, the Assistant Director, Town Planning, Jalgaon
Municipal Corporation, wrote back to the owner stating that the land
acquisition proposal by the Municipal Corporation "is in process" and
stated that, as Section 49(7) was satisfied on the facts of the present
case, there was no lapse. A writ petition dated 2nd May, 2014 was then
filed by the owner before the Aurangabad Bench of the Bombay High
Court, which came to be dismissed by the impugned judgment dated 5th
December, 2014, stating that Section 127 of the Act alone deals with
lapsing of reservation, and that as the purchase notice was issued under
Section 49, the said Section would apply only when a person needs to
develop his land immediately. In the present case, the Appellant failed to
make out any such urgent need and since the Municipal Corporation had
already moved the State Government for acquisition of the Appellant's
land, the writ petition was dismissed.
7. Learned counsel appearing on behalf of Appellant before us
has taken us through the aforestated provisions of the Maharashtra
Regional Town Planning Act, 1966 and has argued that after the
appropriate authority makes an application to acquire the land consequent
upon the purchase notice issued under Section 49, either the land ought
to be acquired within a reasonable time therefrom or should be released
from the designation in the Development Plan as per Section 50 of the
Act. The impugned judgment was wholly incorrect in stating that there
was no urgent need. Besides, Section 49 applies to the purchase notice
at hand, inasmuch as it is clear that the owner is unable to sell the land,
thanks to the reservation made. This being the case, over 10 years having
lapsed since the date of the purchase notice, the owner's land should be
declared to be free of the designation set out in the Development Plan.
8. On the other hand, learned counsel appearing on behalf of the
Government specifically argued that the schemes of Sections 49 and
127 are totally different. No lapse can take place under Section 49 of
the Act, once Section 49(7) stands satisfied and that, since the owner
has not issued any fresh purchase notice under Section 127 of the Act,
no lapsing can be said to have taken place.
9. The scheme of Section 49 of the MRTP Act is to lay down
timelines within which the appropriate authority must make an application
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to acquire the land in respect of which a purchase notice has been
confirmed. The moment any of the conditions specified in the subsection (1) are met, the owner or person affected may serve on the
State Government, within the time and manner prescribed by regulations,
a purchase notice requiring the appropriate authority to purchase the
interest in the land in accordance with the provisions of this Act.
10. On the receipt of the purchase notice as per sub-section (3),
the State Government is to forthwith call from the planning authority or
the appropriate authority such report or records as may be necessary,
which the authority shall then forward to the State Government as soon
as possible but not later than 30 days from the date of acquisition.
11. In sub-section (4), if the State Government is satisfied that the
conditions specified in sub-section (1) are fulfilled, it may either confirm
the purchase notice; refuse to confirm the purchase notice; or direct
that planning permission be granted with or without conditions. Under
sub-section (5), if the steps contemplated after service of purchase notice
leads to a situation where the State Government does not pass any orders
thereon, the notice shall be deemed to have been confirmed at the
expiration of that period. And finally, under sub-section (7), if within
one year from the date of confirmation of purchase notice, the appropriate
authority fails to make an application to acquire the land in respect
of which the purchase notice has been confirmed, the reservation,
designation, allotment, indication or restriction on development of the
land shall be deemed to have lapsed. Section 49(6), which was deleted
by Maharashtra Act 6 of 1976, read as follows:
"Upon confirmation of the notice, the State Government shall
proceed to acquire the land or that part of any land regarding
which the notice has been confirmed, within one year of the
confirmation of the purchase notice, in accordance with the
provisions of Chapter VII."
It is clear that, under this provision, if within one year from the
confirmation of the purchase notice, the State Government did not acquire
the land, then the consequence would be that the acquisition shall be
deemed to have lapsed. This was a salutary provision, but seems to
have been deleted so that Section 49 cases are brought on par with
Section 126 cases.
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12. The object of Section 49 is thus clear that once a purchase
notice is received by the authorities, there arises, as the marginal note to
the Section also indicates, an obligation to acquire land. The timelines
contemplated by the section also indicate that the owner or person
affected cannot be left to hang indefinitely without a decision to follow
up the purchase notice by acquisition of the land in question.
13. However, it has been argued on behalf of the State that Section
49 abruptly ends with sub-section (7), after which there are no timelines
indicated as to what is to happen after the appropriate authority makes
an application to acquire the land within one year from the date of
confirmation of the notice. In our view, this argument must be rejected,
inasmuch as Section 49(1) itself states that the purchase notice must
require the appropriate authority to purchase the interest in the land "in
accordance with the provisions of this Act". This being so, once the
appropriate authority makes the necessary application to acquire the
land within time under Section 49(7), we move over to Sections 126 and
127 of the Act.
14. Under Section 126(1)(c), when after the publication of a draft
regional plan or development or other plan, any land is required or reserved
for a public purpose, the appropriate authority may make an application
to the State Government, for acquiring such land under the Land
Acquisition Act. Under sub-section (2) thereof, on receipt of such
application, if the State Government is satisfied that the land specified in
the application is needed for the public purpose specified therein, then
excepting the cases falling under Section 49, the State Government may
make a declaration under Section 6 of the Land Acquisition Act, to that
effect. However, such declaration under Section 126(2) must be made
within a period of one year from the date of publication of the plan in
question.
15. 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
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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.
16. 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.
17. The aforesaid scheme of Sections 126 and 127 has been the
subject matter of several judgments of this Court. In Girnar Traders
v. State of Maharashtra, (2007) 7 SCC 555, a three-Judge Bench, by
a majority judgment delivered by Justice Naolekar, framed the question
before the Court thus:
"19. The question that requires consideration and answer in the
present case is: Whether the reservation has lapsed due to the
failure of the planning authority to take steps within the period of
six months from the date of service of the notice of purchase as
stipulated by Section 127 of the MRTP Act; and also the question
as regards applicability of new Section 11-A of the LA Act to the
acquisition of land under the MRTP Act."
18. After setting out Sections 126 and 127, this Court then laid
down the scheme of Section 126, which makes it clear that the Section
6 notification under the Land Acquisition Act is to be issued, in cases
where acquisition is made under Section 126(1)(c),in pursuance of an
application by an appropriate authority to the State Government within
one year from the publication of the plan in question, or by way of the
State Government making a fresh declaration beyond a period of one
year under Section 126 (4). This is stated by the Court in paragraph 28
as follows:
"28. Sub-section (2) of Section 126 provides for one year's
limitation for publication of the declaration from the date of
publication of the draft plan or scheme. Sub-section (4), however,
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empowers the State Government to make a fresh declaration under
Section 6 of the LA Act even if the prescribed period of one year
has expired. This declaration is to be issued by the State
Government for acquisition of the land without there being any
application moved by the planning/local authority under Clause
(c) of Section 126(1)."
19. Insofar as Section 127 is concerned, the Court went on to
hold:
"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 de-reservation 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.
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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 utilized."
20. The Court then went on to consider Municipal Corporation
of Greater Bombay v. Dr. Hakimwadi Tenants Association & Ors.,
1988 Supp. SCC 55, and was of opinion that, the observations on the
expression "no steps as aforesaid are commenced for its acquisition"
stipulated under Section 127 were obiter in nature. The majority then
went on to state the law under Section 127 as follows:
"54. When we conjointly read Sections 126 and 127 of the MRTP
Act, it is apparent that the legislative intent is to expeditiously
acquire the land reserved under the Town Planning Scheme and,
therefore, various periods have been prescribed for acquisition of
the owner's property. The intent and purpose of the provisions of
Sections 126 and 127 has been well explained in Municipal
Corpn. of Greater Bombay case. 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
de-reservation 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 de-reservation. The steps towards
commencement of the acquisition in such a situation would
necessarily be the steps for acquisition and not a step which may
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not result into acquisition and merely for the purpose of seeking
time so that Section 127 does not come into operation.
55.