# THE KOLHAPUR MUNICIPAL CORPORATION & ORS v. VASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS

- **Citation:** [2022] 16 S.C.R. 358
- **Court:** Supreme Court of India
- **Decided:** 2022-02-14
- **Case number:** Civil Appeal No. 510 of 2022
- **Bench:** M. R. Shah, B. V. Nagarathna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-kolhapur-municipal-corporation-ors-v-vasant-mahadev-patil-dead-through-l-r-35631
- **Pages:** 41

## Headnote

Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 - s.19 -
Maharashtra Regional and Town Planning Act, 1966 - ss.126, 127
- Land Acquisition Act, 1894 - ss.4, 6, 11 - Different portions of
the land reserved in the sanctioned development plan for various
public purposes - Land owned by the writ petitioners-respondent
not acquired and/or used for which the same was reserved under
the plan - Notice served by the land owners u/s. 127 of the MRTP
Act - Submission of proposal by the Municipal Corporationappellant to the State Government for compulsory acquisition of
the said property - Direction by the District Collector to the appellant
to deposit the compensation amount before the acquisition
procedure u/s. 4, 6 and 11 of the 1894 Act - Subsequently, on
enactment of the Act of 2013, the Special Land Acquisition Officer
directed the appellant to deposit the compensation amount, however
since the appellant was not in a financial position to pay such a
huge amount, it requested the landowners to accept the Transferable
Development Rights-TDR in lieu of compensation amount and the
same was accepted - Meanwhile, the Land Acquisition Officer
informed the appellant to deposit part of the total amount of
compensation and that the land under reservation fell within the
flood affected area and thus, the compensation amount was reduced
- As per the appellant, before the TDR proposal could be considered,
development work was to be carried out upon the said reserved
land for making it suitable for the public purpose - However, the
landowners did not agree to avail of the TDR and filed writ petition
seeking directions to the appellants to publish a final notification
u/s. 126(2) and (4) of the MRTP Act r/w s.19 of the Act of 2013;
and deposit the compensation amount - High Court directed the
Special Land Acquisition Officer to communicate to the Municipal
Corporation the amount which is required to be deposited by them
[2022] 16 S.C.R. 358
358
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as a condition precedent for issuing a declaration u/s. 19 of the
said Act of 2013 - Appellants then filed writ petition seeking direction
to the respondents to accept the TDR in lieu of compensation -
High Court rejected their claim as respondents were not consenting
to accept the TDR - On appeal, held : Land had not been acquired
for ten years despite the writ petitioners having issued a purchase
notice dated 02.01.2012 u/s. 127 of the MRTP Act for acquisition
of the reserved area - Mere Resolution being passed by the General
Body of the Corporation to acquire the land and sending a letter to
the Collector to acquire the land, without any further steps being
taken under the Land Acquisition Act, namely no declaration u/s. 6
, would result in the reservation as deemed to have lapsed - Mere
passing of a Resolution and/or making a budgetary provision for
payment of the compensation in the budget cannot be said to be
taking steps as contemplated u/s. 127 of the MRTP Act - Thus,
once by operation of law, the reservation is deemed to have lapsed,
it is lapsed for all purposes and for all times to come - No further
writ of mandamus could have been issued by the High Court to
acquire the land and thereafter pay the compensation to the
landowners - Furthermore, no Corporation/Planning Authority can
be compelled to acquire the land which according to the
Corporation/Planning Authority is not suitable and/or usable for
the purposes for which it is reserved - Any other interpretation
would lead to colourable and fraudulent exercise of power and
cause financial burden on the public exchequer - Moreover, in case
of grant of TDR, before the High Court, the landowners specifically
filed the affidavits stating that they do not wish to avail of TDR and
their only prayer before the High Court was to acquire the land
and to pay them the compensation - Thus, now it is not open for the
landowners to pray for the TDR in respect of the land in questi

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SUPREME COURT REPORTS
[2022] 16 S.C.R.
THE KOLHAPUR MUNICIPAL CORPORATION & ORS.
v.
VASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS.
(Civil Appeal No. 510 of 2022)
FEBRUARY 14, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 - s.19 -
Maharashtra Regional and Town Planning Act, 1966 - ss.126, 127
- Land Acquisition Act, 1894 - ss.4, 6, 11 - Different portions of
the land reserved in the sanctioned development plan for various
public purposes - Land owned by the writ petitioners-respondent
not acquired and/or used for which the same was reserved under
the plan - Notice served by the land owners u/s. 127 of the MRTP
Act - Submission of proposal by the Municipal Corporationappellant to the State Government for compulsory acquisition of
the said property - Direction by the District Collector to the appellant
to deposit the compensation amount before the acquisition
procedure u/s. 4, 6 and 11 of the 1894 Act - Subsequently, on
enactment of the Act of 2013, the Special Land Acquisition Officer
directed the appellant to deposit the compensation amount, however
since the appellant was not in a financial position to pay such a
huge amount, it requested the landowners to accept the Transferable
Development Rights-TDR in lieu of compensation amount and the
same was accepted - Meanwhile, the Land Acquisition Officer
informed the appellant to deposit part of the total amount of
compensation and that the land under reservation fell within the
flood affected area and thus, the compensation amount was reduced
- As per the appellant, before the TDR proposal could be considered,
development work was to be carried out upon the said reserved
land for making it suitable for the public purpose - However, the
landowners did not agree to avail of the TDR and filed writ petition
seeking directions to the appellants to publish a final notification
u/s. 126(2) and (4) of the MRTP Act r/w s.19 of the Act of 2013;
and deposit the compensation amount - High Court directed the
Special Land Acquisition Officer to communicate to the Municipal
Corporation the amount which is required to be deposited by them
[2022] 16 S.C.R. 358
358
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as a condition precedent for issuing a declaration u/s. 19 of the
said Act of 2013 - Appellants then filed writ petition seeking direction
to the respondents to accept the TDR in lieu of compensation -
High Court rejected their claim as respondents were not consenting
to accept the TDR - On appeal, held : Land had not been acquired
for ten years despite the writ petitioners having issued a purchase
notice dated 02.01.2012 u/s. 127 of the MRTP Act for acquisition
of the reserved area - Mere Resolution being passed by the General
Body of the Corporation to acquire the land and sending a letter to
the Collector to acquire the land, without any further steps being
taken under the Land Acquisition Act, namely no declaration u/s. 6
, would result in the reservation as deemed to have lapsed - Mere
passing of a Resolution and/or making a budgetary provision for
payment of the compensation in the budget cannot be said to be
taking steps as contemplated u/s. 127 of the MRTP Act - Thus,
once by operation of law, the reservation is deemed to have lapsed,
it is lapsed for all purposes and for all times to come - No further
writ of mandamus could have been issued by the High Court to
acquire the land and thereafter pay the compensation to the
landowners - Furthermore, no Corporation/Planning Authority can
be compelled to acquire the land which according to the
Corporation/Planning Authority is not suitable and/or usable for
the purposes for which it is reserved - Any other interpretation
would lead to colourable and fraudulent exercise of power and
cause financial burden on the public exchequer - Moreover, in case
of grant of TDR, before the High Court, the landowners specifically
filed the affidavits stating that they do not wish to avail of TDR and
their only prayer before the High Court was to acquire the land
and to pay them the compensation - Thus, now it is not open for the
landowners to pray for the TDR in respect of the land in question -
Principle of approbate and reprobate equally applicable to the
landowners also - Thus, the land once found to be usable and/or
suitable for the purposes for which it has been reserved, the
Corporation cannot still be compelled and directed to acquire the
land and grant TDR in lieu of amount of compensation - Order
passed by the High Court directing the appellant to issue a
declaration u/s. 19 and consequently to acquire the land and to
pay the compensation to the landowners quashed and set aside.
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S
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SUPREME COURT REPORTS
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Allowing Civil Appeal No. 510 of 2022 and partly allowing
Civil Appeal No. 511 of 2022, the Court
HELD: 1. 1 At the time of preparing the Development Plan
and keeping a particular land reserved for a particular public
purpose, an important duty is cast upon the Planning Authority
to first satisfy that the land reserved which thereafter has to be
acquired on payment of compensation is very much suitable and
usable for that public purpose. In the instant case, how the area,
which is a flood affected area and through which a rivulet named
'Jayanti Nala' passes can be kept under reservation for a particular
public purpose and can be used for public purposes like parking
and/or for widening of the road etc.? Therefore, while preparing
the Development Plan and reserving and/or designating a
particular land for a particular public purpose, great care and
caution is to be exercised by the Planning Authority. As per Section
125 of the Act, any land required, reserved or designated in a
Development plan or Town Planning Scheme for a public purpose
or purposes including plans for any area of comprehensive
development or for any new town shall be deemed to be land
needed for a public purpose within the meaning of the Land
Acquisition Act, 1894. Hence, all the parameters concerning the
suitability of the land for the particular public purpose for which
the land is to be reserved and acquired for utilization must be
borne in mind as a factor of paramount importance. [Para 9.5][385A-D]
1.2. Section 126 of the MRTP Act provides that 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 MRTP Act at any time, the Planning Authority,
Development Authority, or as the case may be, any Appropriate
Authority has to acquire the land as provided under Sections
126(1)(a), (b) or (c) by making an application to the State
Government for acquiring such land under the Land Acquisition
Act, 1894 (now it would be the Act of 2013). On receipt of such
application by the Planning Authority/Development Authority to
the State Government for acquiring such land under the Land
Acquisition Act, 1894, the procedure as contemplated and
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required under Sections 126(2) to 126(4) shall have to be followed.
Section 127 of the MRTP Act further provides that if any land
reserved, allotted or designated for any purpose specified in any
plan under MRTP Act is not acquired by agreement or otherwise
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 (ten years), the owner or any person
interested in the land may serve a notice to the Planning Authority,
the Development Authority or, as the case may be, the Appropriate
Authority to purchase the land reserved. If within twelve months
from the date of the 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, 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.
Sub-section (2) of Section 127 further provides that on lapsing of
the reservation, allocation or designation of any land under subsection (1), the Government shall notify the same, by an order
published in the Official Gazette. [Para 10.1][388-E-H; 389-A-C]
1.3. If the land reserved under the draft Development Plan/
Development Plan is not acquired within a period of ten years
form the date of final Development Plan and thereafter after expiry
of ten years, the landowners serve a purchase notice and
thereafter within a period of one year, no steps are taken to acquire
the land, the reservation/allocation is deemed to have lapsed and
the land stand released from such reservation/allocation.
Declaration under Section 6 of the Act of 1894 can be said to be
taking steps as contemplated under Section 127 of the MRTP
Act. After the enactment of the Act of 2013, the declaration under
Section 6 of the Act of 1894 is now to be read and/or is substituted
by declaration under Section 19 of the Act of 2013. Therefore, if
within a period of one year from the date of receipt of purchase
notice as per Section 127, a declaration under Section 19 of the
Act, 2013 is not issued and the land is not acquired, the
reservation/allocation under the Development Plan is deemed
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S
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to have lapsed and the land is released from such reservation/
allocation. [Para 11][393-C-F]
1.4. The first Development Plan under which the original
writ petitioners' land was reserved for public purposes was in
the year 1976. Thereafter the second amended Development Plan
was published on 18.12.1999 and came to be implemented from
01.02.2000, under which also the land of the original writ
petitioners was reserved for public purposes. But the same had
not been acquired for ten years despite the respondents - original
writ petitioners having issued a purchase notice dated 02.01.2012
under Section 127 of the MRTP Act for acquisition of the reserved
area. A mere Resolution being passed by the General Body of
the Corporation to acquire the land and sending a letter to the
Collector to acquire the land, without any further steps being
taken under the Land Acquisition Act, namely no declaration
under section 6 thereof being issued within a period of one year
from the receipt of the said purchase notice, would result in the
reservation as deemed to have lapsed. [Para 11.1][393-F-H; 394A-B]
1.5. In the instant case, the High Court issued a writ of
Mandamus directing the Corporation to issue a declaration under
Section 19 of the Act of 2013 mainly on the ground that the General
Body of the Corporation had passed a Resolution dated
18.02.2012 resolving that the land in question is required to be
acquired and the same is needed for the purpose for which it has
been reserved. However, mere passing of a Resolution and/or
making a budgetary provision for payment of the compensation
in the budget cannot be said to be taking steps as contemplated
under section 127 of the MRTP Act. Therefore, once the
reservation of land under the Development Plan is deemed to
have lapsed by operation of law and it is released from reservation,
no writ of Mandamus could have been issued by the High Court
directing the Corporation to still acquire the land and to issue a
declaration under Section 19 of the Act of 2013 (as in the
meantime, the Land Acquisition Act, 1894 has been repealed and
Act of 2013 has been enacted). [Para 12][394-B-E]
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1.6. Notification in the Official Gazette is only a
consequential act and it has nothing to do with the actual lapsing
of reservation by operation of law as the reservation is deemed
to have lapsed under Section 127(1). Thereafter issuance of the
notification of lapse of the reservation of land is only a procedural
act and non-issuance of such a notification in the Official Gazette
with respect to lapse of the reservation, allocation or designation
would not affect the lapse of the reservation under Section 127(1)
of the MRTP Act. [Para 13][394-F-G]
1.7. Once the reservation with respect to the land in
question was deemed to have lapsed, no further writ of mandamus
could have been issued by the High Court to acquire the land
and thereafter pay the compensation to the landowners, as on
the lapse of the reservation, the land in question is free from
reservation and the landowners can use it as if there is no
reservation, however, subject to provisions of the MRTP Act.
[Para 14][394-G-H; 395-A]
1.8. In the facts and circumstances of the case, the High
Court had erred and/or the High Court was not justified in
directing the Municipal Corporation to acquire the land in question
and to issue a declaration under Section 19 of the Act of 2013 and
to pay compensation under the Act of 2013. It is to be noted that
right from the very beginning it was stated in the counter before
the High Court that the land in question was not suitable and/or
usable for the purposes for which it has been reserved. It was
specifically pointed out that the subject land is flood affected
through which a rivulet named 'Jayanti Nala' passes, making it
unsuitable for the public purposes for which it was reserved. It
was also specifically pointed out that unless and until the
substantial development is carried out, the land in question is
not usable at all. It was also specifically pointed out that the
reserved area is coming within High Flood Line and every year
for a period of fifteen days to one month, the said area gets flooded
during rainy season. In that view of the matter, the High Court
ought not to have directed the Corporation to still acquire the
land and pay the compensation to the original landowners though
the land in question is unsuitable and unusable for the public
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
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purposes for which it has been reserved. As such at the time
when the planning was made and the land in question was put
under reservation for public purposes, a duty was cast upon the
Planning Officer to consider whether the land, which will have to
be acquired and for which the compensation is to be paid is really
suitable and/or usable for the public purposes for which it is
reserved. Otherwise, every landowner will see to it that though
his land is not suitable and/or not very valuable, is put under
reservation and the same is acquired by the Corporation and/or
the Planning Authority and thereafter he is paid the compensation.
No Corporation and/or the Planning Authority and/or the
Appropriate Authority can be compelled to acquire the land which
according to the Corporation/Planning Authority is not suitable
and/or usable for the purposes for which it is reserved. Any other
interpretation would lead to colourable and fraudulent exercise
of power and cause financial burden on the public exchequer.
[Para 15][395-A-G]
1.9. It is required to be noted that in fact there was a valid
reason for the Corporation not to go ahead with the acquisition.
Under the Act of 2013, the Corporation was required to pay a
huge sum of Rs. 77,65,12,000/- by way of compensation under
the Act of 2013. According to the Corporation, when the entire
annual budget for acquisition was Rs.21 crores, it was beyond
their financial position and/or budgetary provision to pay such a
huge compensation, that too, for the land which is not suitable
and/or useable for the purposes for which it has been reserved.
It may be true that under the MRTP Act, in the Development
Plan, the Planning Authority and/or the Appropriate Authority
has to make the provisions for the public purposes mentioned in
Clauses (b) and (c) of Section 22 and sub-section (5) of Section
31 of the MRTP Act and that is also desired for an appropriate
planning of a city and therefore the financial constraint cannot be
the sole consideration to acquire the land for the purposes for
which it has been reserved namely public purposes. However, at
the same time, when such a huge amount of compensation is to
be paid and there would be a heavy financial burden, which as
such is beyond the financial capacity of the Corporation, such a
financial constraint can be said to be one of the relevant
considerations, though not the sole consideration before
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embarking upon reservation of a particular extent of land for
development. Even otherwise, in the facts and circumstances of
this case, when land is found to be unsuitable and unusable for
the purposes for which it has been reserved, Corporation cannot
be compelled to pay a huge compensation for such a useless and
unsuitable land. [Para 16][395-G-H; 396-A-E]
1.10. On the principle of approbate and reprobate, it is
contended by the landowners that the Corporation cannot now
be permitted to deny TDR to the original landowners, the Court
observes that first of all, it is required to be noted that the said
principle of approbate and reprobate would be equally appliable
to the landowners also. Before the High Court, the original
landowners specifically filed the affidavits that they do not wish
to avail of TDR and their only prayer before the High Court was
to acquire the land and to pay them the compensation. Therefore,
now it is not open for the respondents - original landowners to
pray for the TDR in respect of the land in question. [Para 17][396F-H]
1.11. Even otherwise, a landowner is entitled to TDR in
lieu of compensation with respect to the land reserved provided
the land to be acquired is suitable and/or usable by the
Corporation. Once it is found that the land is not usable and/or
suitable for the purposes for which it has been reserved, the
Corporation cannot still be compelled and directed to acquire
the land and grant TDR in lieu of amount of compensation. Clause
11.2.3 of the Unified Development Control and Promotion
Regulations, 2020 Regulations states that it shall not be
permissible to grant TDR for existing nallah, river, natural stream,
natural pond, tank, water bodies etc. and reservations which are
not developable under the provisions of UDCPR, 2020.
Therefore, the prayer of the respondents to grant them TDR is
rejected. [Para 17.1, 17.2][397-A-C, F-G]
1.12. The impugned judgment and order passed by the High
Court directing the appellant Corporation to issue a declaration
under Section 19 of the Act of 2013 and consequently to acquire
the land in question and to pay the compensation to the
respondents-original landowners as per the provisions of Act of
2013 is quashed and set aside. Consequently, the original Writ
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Petition before the High Court filed on behalf of the original
landowners is dismissed. [Para 18]12[397-G-H; 398-A]
1.13. As regards, Civil Appeal No. 511 of 2022 the
reservation of the land for the public purposes for which it was
reserved is deemed to have lapsed. [Para 19][398-B-C]
Girnar Traders v. State of Maharashtra and Ors. (2007)
7 SCC 555 : [2007] 9 SCR 383; Shrirampur Municipal
Council, Shrirampur v. Satyabhamabai Bhimaji
Dawkher and Ors. (2013) 5 SCC 627 : [2013] 2 SCR
664; Chhabildas v. State of Maharashtra and Ors.
(2018) 2 SCC 784 : [2018] 1 SCR 411 - relied on.
Mumbai International Airport Private Limited v. Golden
Chariot Airport & Anr. (2010) 10 SCC 422 : [2010] 12
SCR 326; Joint Action Committee of Air Line Pilots'
Association of India (ALPAI) and Ors. v. Director
General of Civil Aviation and Ors. (2011) 5 SCC 435 :
[2011] 5 SCR 1019; Karam Kapahi and Ors. v. Lal
Chand Public Charitable Trust and Anr. (2010) 4 SCC
753 : [2010] 4 SCR 422; Municipal Corporation of
Greater Mumbai and Ors. v. Hiraman Sitaram
Deorukhar and Ors. (2019) 14 SCC 411 - referred to.
Case Law Reference
[2010] 12 SCR 326
referred to
Para 4.4
[2011] 5 SCR 1019
referred to
Para 4.4
[2010] 4 SCR 422
referred to
Para 4.4
[2007] 9 SCR 383
relied on
Para 10.6, 11
[2013] 2 SCR 664
relied on
Para 10.6, 11
[2018] 1 SCR 411
relied on
Para 10.6, 11
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 510 of
2022.
From the Judgment and Order dated 13.08.2018 of the High Court
of Judicature at Bombay in Writ Petition No. 5310 of 2018.
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With
Civil Appeal No. 511 of 2022.
Ms. Aparajita Singh, Sr. Adv., Shivaji M. Jadhav, Anish R. Shah,
Brij Kishor Sah, Ms. Qurratulain, Aditya S. Jadhav, Advs. for the
Appellants.
Chander Uday Singh, Sr. Adv., Abhay Anil Anturkar, Amjid
Maqbool, Tanaji Mhatugade, Vaibhav Kulkarni, Harshvardhan
Suryavanshi, Ms. Bhavya Pande, Dhruv Tank, Dr. R. R. Deshpande,
M/s Dr. R. R. Deshpande and Associates, Ms. Yugandhara Pawar, Rahul
Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal,
Amit, Maneesh Saxena, Vipin Kumar Saxena, Ms. Kajal Rani, Advs.
for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 13.08.2018 passed by the High Court of Judicature at
Bombay in Writ Petition No.5310 of 2018 by which the Division Bench
of the High Court has allowed the said writ petition preferred by the
private respondents herein - original writ petitioners and has issued the
writ of Mandamus directing the appellants - Kolhapur Municipal
Corporation and others to acquire the land in question and to issue a
declaration under Section 19 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as "Act of 2013"), Kolhapur Municipal
Corporation and others have preferred the present Civil Appeal No. 510
of 2022.
1.1 In the aforesaid Writ Petition No.5310 of 2018 after the
judgment was delivered on 13.08.2018, the Kolhapur Municipal
Corporation preferred one further Civil Application No.2461 of 2018 in
Writ Petition No. 5310 of 2018 for appropriate order directing the original
writ petitioners to accept the TDR in lieu of monetary compensation,
which has been rejected by the High Court by order dated 10.12.2018.
The same is the subject matter of the present Civil Appeal No.511 of
2022 preferred by the Kolhapur Municipal Corporation.
2. The facts leading to the present appeal in a nutshell are as
under:-
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S
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2.1 The dispute is with respect to the land bearing R. S. No. 138,
ad-measuring 3 Hectors and 65 Ares, situated at E ward, Near New
Palace, Kolhapur owned by the original writ petitioners. The development
plan for the City of Kolhapur was sanctioned on 18.12.1999. Different
portions of the land in question were reserved in the sanctioned
development plan for various public purposes namely, parking, garden,
extension of sewage treatment plant etc. That as the land in question
was not acquired and/or used for the public purposes for which the
same was reserved under the sanctioned development plan, the original
writ petitioners - landowners served a notice under Section 127 of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred
to as the "MRTP Act") on 02.01.2012.
2.2 By Resolution dated 18.02.2012, the General Body of the
Municipal Corporation resolved to acquire the said property and
accordingly on 17.04.2012, a proposal was submitted by the Municipal
Corporation to the State Government for compulsory acquisition of the
subject property. The District Collector passed an order dated 07/
09.07.2012 directing that the proposal for acquisition be transferred to
the Special Land Acquisition Officer (11), Kolhapur for necessary action.
By the said order, the Corporation was directed to deposit 25% of the
amount before publication of the notification under Section 4 of the Land
Acquisition Act, 1894 (hereinafter referred to as "Act of 1894"), 25%
of estimated compensation amount before the publication of a declaration
under Section 6 of the Act of 1894 and remaining 50% of the estimated
compensation amount before the declaration of award under Section 11
of the Act of 1894.
2.3 That on enactment of the Act of 2013, the Land Acquisition
Act, 1894 came to be repealed. Therefore, the land in question was
subjected to the provisions of the Act of 2013. The Special Land
Acquisition Officer directed the Corporation to deposit the amount of
Rs.77,65,12,000/- towards compensation vide its letter dated 06.10.2015
in order to issue necessary orders as per Section 19 of the Act of 2013.
It appears that the Corporation was not in a financial position to pay
such a huge compensation amount and so by letter dated 17.03.2016
requested the original writ petitioners - landowners to accept the
Transferable Development Rights (TDR) in lieu of compensation amount
as per the Development Control Rules of the Corporation. The original
writ petitioners also at the relevant time accepted the said proposal and
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submitted an application dated 12.05.2017 for grant of TDR. In the
meantime, the Special Land Acquisition Officer by its letter dated
22.09.2016 informed the Municipal Corporation to deposit 30% of the
total amount of compensation and also informed that the land under
reservation fell within the flood affected area due to its proximity to
'Jayanti Nala' and considering the valuation of the said area as per the
market value of 2016-l7(A.S.R.), the amount of compensation was
reduced from Rs. 77,65,12,000/- to Rs. 43,41,29,400/-.
2.4 It appears that there was some correspondence between the
original writ petitioners and the Corporation with respect to the TDR
proposal. According to the Corporation, the grant of TDR was always
subject to the provisions of the Development Control Rules and further
subject to satisfying the conditions mentioned in the said Rules. According
to the Municipal Corporation as per the Development Control Rules,
any owner before the grant of TDR will have to surrender the land
under reservation by carrying out necessary developments according to
prevailing Byelaws at his own cost and free of encumbrances. According
to the Corporation, the reserved area was coming within High Flood
Line and every year for a period of fifteen days to one month, the said
area gets flooded during rainy season. According to the Corporation, the
reserved land/area is flood affected and a rivulet named 'Jayanti Nala'
passes through the said area under reservation. Therefore, as per the
Corporation, before the TDR proposal could be considered, it was
necessary to carry out the required development work upon the said
reserved land for making it suitable for the public purpose as per the
reservation, to be carried out by the original writ petitioners - landowners.
According to the Corporation, if the said developments are not done, the
land under reservation will not be able to be utilized for the purpose for
which it is reserved. There were various correspondences between the
parties. However, thereafter the writ petitioners did not agree to avail of
the TDR and the original writ petitioners - landowners filed present writ
petition before the High Court and prayed for the following reliefs:-
a.
Rule be issued and records and proceedings be called for;
b.
That this Hon'ble Court may be pleased to issue writ of
mandamus and/ or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby directing
the Respondent No. 1 and 2 to forthwith publish a final
notification under sub section (2) and (4) of the Sec. 126 of
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
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the M.R.T.P. Act read with Sec. 19 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation, and Resettlement Act; 2013;
c.
That this Hon'ble Court may be pleased to issue writ of
mandamus and/or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby directing
the Respondent No. 3 Corporation to forthwith deposit the
amount of compensation i.e. Rs. 77,64,12000/- with the
Respondent No. 2 and 7 and further the Respondent No. 2
and 7 may be directed to forthwith release the said amount
of compensation to the Petitioners;
d.
Such further and other order be made as this Hon'ble Court
may deem fit and proper in the interest of justice and in the
facts and circumstances of the case.
2.5 The said petition was vehemently opposed by the Municipal
Corporation. An affidavit in reply opposing the writ petition was filed on
behalf of the original respondent No.6 - Municipal Corporation and others.
It was vehemently submitted that the reservation has lapsed in view of
Section 127 of the MRTP Act. It was also submitted that it is not possible
for the Corporation to acquire the land on payment of huge sum of
Rs.43,41,29,400/-. It was submitted that it was beyond the financial
capacity of the Corporation to pay such a huge compensation and it was
beyond their budgetary provision and had grave financial implication. It
was also pointed out that even the TDR proposal had not been materialized
as the original writ petitioners were not agreeable to fulfill their obligations
for grant of TDR as per Development Control Rules. It was also
specifically pointed out that unless there is development carried out at
the cost of the original writ petitioners - landowners, it is not possible for
the Corporation to use the land for the purpose for which it is reserved.
It was specifically pointed out that the land in question is a wet land and
that the area is flood affected and a rivulet named 'Jayanti Nala' passes
through the said area under reservation. It was also specifically pointed
out that the reserved area is coming within the High Flood Line and
every year for a period of fifteen days to one month the said area gets
flooded during the rainy season. Therefore, it was pointed out that it was
necessary to carry out the required development work upon the said
reserved area for making it suitable for the purposes as per reservation.
It was also pointed out that if the said developments are not done, the
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land under reservation shall not be able to be utilized for the purposes it
is reserved.
2.6 Before the High Court, the original writ petitioners tendered
affidavits dated 01.08.2018 and 07.08.2018 recording that they do not
wish to avail of TDR (as observed by the High Court in paragraph No.5).
Thereafter by the impugned judgment and order, the High Court has
disposed of the writ petition and issued the following directions in exercise
of powers under Article 226 of the Constitution of India:-
(i)
We direct the Special Land Acquisition Officer (11),
Kolhapur to communicate to the third respondent - Municipal
Corporation the amount which is required to be deposited
by the said Municipal Corporation as a condition precedent
for issuing a declaration under Section 19 of the said Act of
2013. The communication demanding the amount shall be
issued by the Special Land Acquisition Officer within one
month from the date on which this judgment and order is
uploaded;
(ii)
We may record here that there is no dispute about the
reservation of the subject land in the sanctioned development
plan and therefore, in view of the proviso to Section 125 of
the MRTP Act, the acquisition under the said Act of 2013
shall commence from the stage of declaration under section
19 thereof;
(iii)
Within a period of two months from the demand for payment
made by the Special Land Acquisition Officer as aforesaid,
the third respondent shall deposit the requisite amount with
the Collector/Special Land Acquisition Officer;
(iv)
Within a period of one month from the date of deposit of
the requisite amount by the third respondent, a declaration
under Section 19 of the said Act of 2013 shall be issued/
published in accordance with law;
(v)
The acquisition proceedings shall be completed and
compensation shall be paid as expeditiously as possible in
accordance with law and in any case within a period of one
year from the date on which the declaration under Section
19 of the said Act of 2013 is published;
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
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(vi)
Writ petition is disposed of with the above directions;
(vii)
For reporting compliance with the above directions by the
third respondent the petition shall be listed under the caption
of directions on 26th November 2018.
2.7 While issuing the aforesaid directions, the High Court has
observed that as there was already a resolution passed by the General
Body of the Municipal Corporation to acquire the subject lands by taking
recourse to law of compulsory acquisition, therefore, there is no option
for the Municipal Corporation but to acquire the said land by taking
recourse to the Act of 2013.
2.8 Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 13.08.2018 passed by the High court of Judicature at
Bombay in Writ Petition No.5310 of 2018, the Kolhapur Municipal
Corporation and others have preferred the present Civil Appeal No.510
of 2022.
2.9 It appears that after the impugned judgment and order dated
13.08.2018 passed by the High Court and after the above directions
were issued, the appellants - Kolhapur Municipal Corporation and others
filed one Civil Application No.2461 of 2018 in Writ Petition No.5310 of
2018 for modification of the judgment and order dated 13.08.2018 and
prayed for the direction to the original writ petitioners to accept the
TDR in lieu of monetary compensation. It was also further prayed for
directing that in the event of the failure of the Corporation to deposit the
amount, the consequences under the MRTP Act, 1966 and the Act of
2013 should follow. Both the aforesaid prayers were rejected by the
High Court vide order dated 10.12.2018 by observing that the original
writ petitioners are not consenting to accept the TDR in lieu of monetary
compensation. The order dated 10.12.2018 passed in Civil Application
No.2461 of 2018 in Writ Petition No.5310 of 2018 is the subject matter
of present Civil Appeal No.511 of 2022.
3. Ms. Aparajita Singh, learned Senior Advocate appearing on
behalf of the Corporation has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error
in issuing a writ of Mandamus and directing the Corporation to acquire
the land in question and to pay the compensation to the original landowners
by issuing a declaration under Section 19 of the Act of 2013.
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3.1 It is submitted that the High Court has not at all appreciated
the fact that as such in the present case, in view of the provisions of
Section 126 r/w Section 127 of the MRTP Act, 1966, the reservation had
lapsed. It is submitted that once by operation of law, the reservation had
lapsed, no writ of Mandamus could have been issued directing acquisition
of the land for which it was reserved under the development plan.
3.2 It is submitted that in the present case, the subject land was
reserved under the Development Plan in the year 2001 and different
parts of the land were reserved for the purposes of garden, parking and
extension of sewage treatment plant and 12 mtr DP Road. It is submitted
that it is an admitted position that for more than ten years, neither the
land was acquired nor the declaration in relation to it was published
under Section 126(2) or (4) of the MRTP Act. It is submitted that
thereafter the respondents served a notice to the Corporation under
Section 127 of the MRTP Act on 02.01.2012 requesting the Corporation
to acquire the land. It is submitted that however, no steps were taken to
acquire the land and the acquisition proceedings did not commence even
within twelve months from the date of service of such notice. It is
therefore submitted that in view of Section 127 of the MRTP Act, if
within ten years from the date on which the final Development Plan
comes into force and the land reserved is not acquired by agreement nor
a declaration under sub-section (2) or sub-section (4) of Section 126 has
been published in the Official Gazette and thereafter the landowner serves
a notice to the Development Authority to acquire the land, and, if within
twelve months from the date of the service of such notice, neither the
land is acquired nor steps are commenced for its acquisition, the
reservation shall be deemed to have lapsed. Heavy reliance is placed on
the decision of this Court in the case of Girnar Traders Vs. State of
Maharashtra and Ors., (2007) 7 SCC 555, which has been
subsequently followed in the other decisions of this Court in the case of
Shrirampur Municipal Council, Shrirampur Vs. Satyabhamabai
Bhimaji Dawkher and Ors., (2013) 5 SCC 627 and Chhabildas
Vs. State of Maharashtra and Ors., (2018) 2 SCC 784.
3.3 It is therefore submitted that once the reservation is deemed
to have lapsed, the original landowners cannot insist that still their land
be acquired and they be paid the compensation. In such a situation, even
neither a writ petition would be maintainable at the instance of the
landowners nor a writ of mandamus directing the Corporation to still
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
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acquire the land and pay the compensation can be issued. This is
particularly so when the reservation has lapsed.
3.4 It is further submitted by Ms. Singh, learned Senior Advocate
appearing on behalf of the appellant Corporation that even otherwise in
the facts and circumstances of the case, the High Court ought not to
have directed the Corporation to acquire the land for the purpose for
which it was reserved and to pay the compensation to the original
landowners. It is submitted that the High Court has not at all appreciated
and/or considered the financial position of the Corporation and the
financial constraint faced by the Corporation, if such a huge amount of
compensation under the provisions of the Act of 2013 is to be paid by the
Corporation. It is submitted that the entire budget of the Corporation for
land acquisition was only Rs.21 crores as against the compensation amount
of Rs.62.5 crores payable in the present case. It is submitted that
therefore it is practically impossible for the Corporation to pay such a
huge amount of compensation for the land which as such is unsuitable
and not useable by the Corporation.
3.5 It is further submitted by the learned senior counsel on behalf
of the Corporation that the High Court has therefore not at all adverted
to the financial inability of the Corporation to acquire the land and the
unsuitability of the land for the public purpose for which it was reserved.
It is submitted that it was specifically pointed out that the land in question
is not at all suitable and/or usable for the purpose for which the same
has been acquired, namely parking, garden etc. It is submitted that it
was specifically pointed out that the subject land is flood affected through
which a rivulet named 'Jayanti Nala' passes, making it unsuitable/unusable
for the public purposes for which it was reserved.