PRAFULLA C.DAVE & ORS. Vs. MUNICIPAL COMMRS.& ORS: Supreme Court- Maharashtra Regional and Town Planning Act, 1966
Supreme Court of India
CIVIL APPEAL NO. 1999 OF 2008 Judgment Date: Dec 03, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1999 OF 2008
PRAFULLA C. DAVE & ORS. ... APPELLANT (S)
VERSUS
MUNICIPAL COMMISSIONER & ORS. ... RESPONDENT (S)
J U D G M E N T
RANJAN GOGOI, J.
1. The question arising for determination in the present appeal has been
succinctly formulated by the High Court in the following terms:
"Whether, the plan first prepared and notified under Section 21 of
the Maharashtra Regional and Town Planning Act, 1966 ('MRTP Act') is the
final development plan and the plan prepared under Section 38 is only a
revision of the final development plan proposed under Section 21 of the
MRTP Act and as such, the notice contemplated under Section 127(2) of the
MRTP Act and the period prescribed is from the publication of the
development plan first notified under Section 21 and not the revised
development plan under Section 38?"
2. To answer the aforesaid question, a brief conspectus of the
statutory framework under the Maharashtra Regional and Town Planning Act,
1966 (hereinafter referred to as the 'MRTP Act') will be necessary.
3. The preamble to the Act suggests that the MRTP Act was enacted, inter
alia, ".......to make better provisions for the preparation of development
plans with a view to ensuring that town planning schemes are made in a
proper manner and their executions is made effective..........." .
4. Section 2 of the MRTP Act contains the definition clause. A
Development Plan is defined by sub-section (9) of Section 2 to mean "a plan
for the development or re-development of the area within the jurisdiction
of a Planning Authority [and includes revision of a development plan and
proposals of a special planning authority for development of land within
its jurisdiction]".
5. Chapter III, inter alia, deals with preparation, submission and
sanction of development plan. Section 21 provides that not later than three
years after commencement of the Act every planning authority shall carry
out a survey, prepare an existing land-use map and prepare a draft
development plan for the area within its jurisdiction. A publication in the
official gazette or in such other manner as may be prescribed stating that
the draft development plan has been prepared is also contemplated. The
draft development plan is required to be submitted by the State Government
for sanction.
6. Section 22 provides for the contents of the development plan and is
in the following terms :-
"Contents of Development Plan:- A Development plan shall generally indicate
the manner in which the use of land in the area of the Planning Authority
shall be regulated, and also indicate the manner in which the development
of land therein shall be carried out. In particular, it shall provide so
far as may be necessary for all or any of the following matters, that is to
say,-
(a) proposals for allocating the use of land for purposes, such as
residential, industrial, commercial, agricultural, recreational;
(b) proposals for designation of land for public purpose, such as schools,
colleges and other educational institutions, medical and public health
institutions, markets, social welfare and cultural institutions, theatres
and places for public entertainment, or public assembly, museums, art
galleries, religious buildings and government and other public buildings as
may from time to time be approved by the State Government;
(c) proposals for designation of areas for open spaces, playgrounds,
stadia, zoological gardens, green belts, nature reserves, sanctuaries and
dairies;
(d) transports and communications, such as roads, high-ways, park ways,
railways, water-ways, canals and airports, including their extension and
development;
(e) water supply, drainage, sewerage, sewage disposal, other public
utilities, amenities and services including electricity and gas;
(f) reservation of land for community facilities and services;
(g) proposals for designation of sites for service industries, industrial
estates and any other development on an extensive scale;
(h) preservation, conservation and development of areas of natural scenery
and landscape;
(i) preservation of features, structures or places of historical, natural,
architectural and scientific interest and educational value 1[and of
heritage buildings and heritage precincts];
(j) proposals for flood control and prevention of river pollution;
(k) proposals of the Central Government, a State Government, Planning
Authority or public utility undertaking or any other authority established
by law for designation of land as subject to acquisition for public purpose
or as specified in a Development plan, having regard to the provisions of
section 14 or for development or for securing use of the land in the manner
provided by or under this Act;
(l) the filling up or reclamation of low lying, swampy or unhealthy areas,
or levelling up of land;
(m) provisions for permission to be granted for controlling and regulating
the use and development of land within the jurisdiction of a local
authority including imposition of fees, charges and premium, at such rate
as may be fixed for conditions and restrictions in regard to by the State
Government or the Planning Authority, from time to time, for grant of an
additional Floor Space Index or for the special permissions or for the use
of discretionary powers under the relevant Development Control Regulations,
and also for imposition of conditions and restrictions in regard to the
open space to be maintained about buildings, the percentage of building
area for a plot, the location, number, size, height, number of storeys and
character of buildings and density of population allowed in a specified
area, the use and purposes to which buildings or specified areas of land
may or may not be appropriated, the sub-division of plots the
discontinuance of objectionable users of land in any area in reasonable
periods, parking space and loading and unloading space for any building and
the sizes of projections and advertisement signs and boardings and other
matters as may be considered necessary for carrying out the objects of this
Act."
7. Section 23 which really ought to have preceded the earlier Sections
i.e. Sections 21 and 22 contemplate that a planning authority, before
carrying out a survey and preparing an existing land-use map, shall by a
Resolution make a declaration of its intention to prepare a development
plan. Such declaration is required to be published in the official gazette
and also in the local newspaper inviting suggestions or objections from the
public within a period of not less than sixty days from the date of
publication in the official gazette. The appointment of a planning officer
to carry out a survey and prepare an existing land-use map is provided for
by Section 24 of the MRTP Act. Under Section 25, the planning authority or
the officer appointed by it under Section 24 is required to carry out a
survey of the lands and prepare an existing land-use map within six months
from the date of publication of the intention to prepare a development
plan. Section 26 provides for preparation of the draft development plan
within two years from the date of notice under Section 23 and publication
of the same in the official gazette calling for objections and suggestions
to be submitted within thirty days from the date of publication in the
gazette. Such objections are required to be forwarded to a Planning
Committee constituted under the Act for consideration and report.
Modifications or changes in the draft development plan may be made by the
planning authority after receipt of the report of the Planning Committee
which modifications are again required to be notified in the official
gazette for information to the public. Thereafter under Section 30, the
draft development plan alongwith a list of modifications or changes
proposed in the said draft plan under Section 28(4) is required to be
submitted to the State Government within a period of six months. Sanction
of the State Government is to be accorded under Section 31 within six
months from the date of receipt of the draft plan from the planning
authority. It would be significant to note that under sub-section (5) of
Section 31 if a development plan contains any proposal for the designation
of any land for a purpose specified in Section 22(b)(c) (already extracted)
and such land does not vest in the planning authority, the State Government
shall not include such land in a development plan unless it is satisfied
that the planning authority will be able to acquire such land either by
private agreement or by compulsory acquisition not later than ten years
from the date on which the development plan comes into operation.
8. Section 37 of the MRTP Act provides for modification of a final
development plan of such nature which will not change the character of the
plan. Such modification has to be preceded by notice in the official
gazette inviting objections and suggestions. Hearing of such objections is
contemplated by Section 37(1) before submission of the proposal for
modification to the State Government for sanction. Section 37 also
contemplates suo moto modification by State Government subject to
observance of the same procedure. Under sub-section (2) the State
Government may sanction a modification which is again required to be
published in the official gazette.
9. Section 38 deals with the revision of a final development plan,
already in operation. Such revision is contemplated on the expiry of 20
years from the date of coming into operation of a development plan. As the
scope, purport and effect of the provisions contained in Section 38 is the
bone of controversy in the present case, the same may be extracted below.
"38. Revision of Development Plan
At least once in [twenty years] from the date on which a Development plan
has come into operation, and where a Development plan is sanctioned in
parts, then at least once in [twenty years] from the date on which the last
part has come into operation, a Planning Authority may [and shall at any
time when so directed by the State Government], revise the Development Plan
[(either wholly, or the parts separately)] after carrying out, if
necessary, a fresh survey and preparing an existing land-use map of the
area within its jurisdiction, and the provisions of sections 22, 23, 24,
25, 26, 27, 28, 30 and 31 shall, so far as they can be made applicable,
apply in respect of such revision of the Development plan."
10. Section 38 clearly sets out the point of time at which a revision of
an approved plan already in operation can be made. Such revision may
involve a fresh survey and preparation of fresh land-use map. Section 38
further makes it clear that in revision of a development plan the
provisions of Sections 22 to 31 except Section 29, so far as they can be
made applicable, shall apply.
11. The other relevant provisions of the MRTP Act which would require to
be noticed are Sections 126 and 127. Under Section 126 after publication of
a development plan if any land is required or reserved for any of the
public purposes specified in such plan, the planning authority or any other
appropriate authority may acquire the land, inter alia, by making an
application to the State Government for acquiring such land under the Land
Acquisition Act, 1894. There are two other modes of acquisition, namely, by
agreement and by allotment of transferable development rights. The same,
however, would not be relevant for the purpose of the present case and,
therefore, need not be noticed. Acquisition of land under the Land
Acquisition Act, 1894 is to be made by issuing a declaration in the
official gazette in the manner provided in Section 6 of the Land
Acquisition Act, 1894. Such declaration is required to be made within one
year from the publication of the development plan. However, sub-section
(4) provides that if such a declaration is not made within a period
specified or if the other contingencies provided for in the said sub-
section exist, the State Government may make a fresh declaration in which
event the market value of the land will be determined as on the date of the
fresh declaration under Section 6 of the Land Acquisition Act.
12. Section 127 deals with lapsing of reservations and being at the core
of the controversy arising in the present case, will require to be
extracted below-
"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 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,
Development Authority or as the case may be, Appropriate Authority to that
effect; and if within six 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 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."
13. Section 127 of the MRTP Act is free from any ambiguity. If the land
reserved, allotted or designated for any purpose specified in any plan
under the Act is not acquired by agreement within ten years from the date
on which the final regional or development plan had come into force or if
proceedings for the acquisition of such land under the MRTP Act or under
the Land Acquisition Act are not commenced within the said period of ten
years, the owner or any person interested in the land may serve notice to
the concerned authority and if within six months from the date of service
of such notice the land is not acquired or no steps are taken for its
acquisition, the reservation, allotment or designation is deemed to have
lapsed and the land is deemed to be released from such reservation,
allotment or designation and becomes available to the owner.
14. In the present case the land belonging to the appellants measure
about 83 Ares and is situated at village Aundh, District Pune, Maharashtra.
The said land was included in a development plan of the city of Pune
notified on 8th July, 1966 and shown to be kept under reservation for a
public purpose i.e. garden. The land was not acquired by resorting to any
of the modes under Section 126 at any point of time prior to the sanction
of a revised development plan dated 5th January, 1987 which continued the
reservation of the land for the same purpose i.e. garden. The final revised
development plan dated 5th January, 1987 was preceded by a draft revised
plan which was published in the year 1982. No notice under Section 127 of
the MRTP Act was issued by the owner and any person interested in the land
and served on any authority under the Act at any point of time prior to the
purchase of the land by the appellants from the original owners in the year
1989. After such purchase, the appellants filed Writ Petition No. 5467 of
1989 on 29th August, 1989 before the Bombay High Court for deletion and de-
reservation of the land. Thereafter, the appellants served a notice dated
5th October, 1989 under Section 127 of the MRTP Act calling upon the Pune
Municipal Corporation to acquire the land within a period of six months
from the date of receipt of the notice. As no action was taken by the
Municipal Corporation, the appellants submitted a layout plan to the
Corporation on 5th October, 1990 which was rejected on 29th October, 1990.
Against the aforesaid rejection made by the Corporation, the appellants
filed an appeal under Section 47 of the MRTP Act. In the meantime, the writ
petition i.e. W.P No.5467 of 1989 filed by the appellants was disposed of
with a direction that the appeal filed by the appellants be expeditiously
decided. The said appeal came to be rejected on 14th July, 2003 on the
ground that notice under Section 127 of the MRTP Act was premature as it
was issued before the completion of the period of ten years from the date
of the revised development plan.
15. Assailing the said order passed in the appeal, the writ petition was
filed wherein the issue arising was formulated by the High Court in the
terms already set out. The answer provided by the High Court in the writ
proceeding being adverse to the appellants, the instant appeal has been
filed.
16. We have heard Shri Jayant Bhushan, learned senior counsel appearing
for the appellants and Shri Shekhar Naphade, learned senior counsel
appearing for the respondents.
17. On behalf of the appellants it is contended that the period of ten
years under Section 126 of the Act has to be reckoned from the date of
coming into force of the initial final development plan and not the revised
development plan made under Section 38 of the Act. Any other view,
according to the learned counsel, would amount to a perpetual deprivation
of the owner of land which, at the same time is also not being put to use
for the public purpose specified in the development plan. Section 127 of
the Act, it is contended, is a beneficial provision in so far as the land
owner is concerned calling for a liberal interpretation of its effect.
Learned counsel has also drawn attention to the provisions of Section 31(5)
of the MRTP Act which contemplates that in so far as reservation of land
for public purposes specified in sub-section (b) and (c) of Section 21 is
concerned inclusion of such land in the Development Plan should not be made
unless the authority is reasonably confident of acquiring the land within a
period of ten years. Learned counsel has, therefore, submitted that the
legislative intent was to give the authority under the Act a maximum of ten
years to acquire the land earmarked for a public purpose or at least to
initiate steps for such acquisition failing which the reservation would
lapse. Reliance has been placed on a decision of this Court in Bhavnagar
University vs. Palitana Sugar Mill (P) Ltd.& Ors.[1] in support of the
contentions made by them.
18. In reply, Shri Naphade has submitted that the scheme of the Act would
suggest that a revised plan prepared under Section 38 tantamounts to a
complete development plan contemplated in Sections 21 to 30 of the Act. The
legislative scheme takes into account that development is a dynamic process
and cannot be frozen by strict prescriptions of time. Once the final
development plan is revised under Section 38 the period of ten years would
necessarily run from the date of coming into force of such revised plan.
Any other interpretation, according to the learned counsel, would render
all provisions of the Act dealing with the revised plan otiose. Shri
Naphade has also argued that in the event a revised plan under Section 38
is sanctioned and brought into force the relevant date for determination of
compensation would stand transposed to the fresh dates of the declaration
under Section 6 of the Land Acquisition Act which would ensure payment of a
fair compensation to the land owner. This is by virtue of Section 126(4) of
the Act and, according to Shri Naphade, is how the balance between public
interest and the interest of the land owner is maintained under the
provisions of the Act. In so far as the decision in Bhavnagar University
(supra) is concerned, Shri Naphade has submitted that there are certain
provisions of the MRTP Act which are not embodied in the provisions of the
Gujarat Act that was considered in Bhavnagar University (supra).
Specifically it is pointed out that the provisions similar to Sections 37,
49 and 50 of the MRTP Act which provide alternative escape routes to the
land owners are absent in the Gujarat Act. It is on the aforesaid broad
basis the decision in Bhavnagar University (supra) has been sought to be
distinguished.
19. Under Section 127 of the MRTP Act, reservation, allotment or
designation of any land for any public purpose specified in a development
plan is deemed to have lapsed and such land is deemed to be released only
after notice on the appropriate authority is served calling upon such
authority either to acquire the land by agreement or to initiate
proceedings for acquisition of the land either under the MRTP Act or under
the Land Acquisition Act, 1894 and the said authority fails to comply with
the demand raised thereunder. Such notice can be issued by the owner or any
person interested in the land only if the land is not acquired or
provisions for acquisition is not initiated within ten years from the date
on which the final development plan had come into force. After service of
notice by the land owner or the person interested, a mandatory period of
six months has to elapse within which time the authority can still initiate
the necessary action. Section 127 of the MRTP Act or any other provision
of the said Act does not provide for automatic lapsing of the acquisition,
reservation or designation of the land included in any development plan on
the expiry of ten years. On the contrary upon expiry of the said period of
ten years, the land owner or the person interested is mandated by the
statute to take certain positive steps i.e. to issue/serve a notice and
there must occur a corresponding failure on the part of the authority to
take requisite steps as demanded therein in order to bring into effect the
consequences contemplated by Section 127. What would happen in a situation
where the land owner or the person interested remains silent and in the
meantime a revised plan under Section 38 comes into effect is not very
difficult to fathom. Obviously, the period of ten years under Section 127
has to get a fresh lease of life of another ten years. To deny such a
result would amount to putting a halt on the operation of Section 38 and
rendering the entire of the provisions with regard to preparation and
publication of the revised plan otiose and nugatory. To hold that the
inactivity on the part of the authority i.e. failure to acquire the land
for ten years would automatically have the effect of the reservation etc.
lapsing would be contrary to the clearly evident legislative intent. In
this regard it cannot be overlooked that under Section 38 a revised plan is
to be prepared on the expiry of a period of 20 years from date of coming
into force of the approved plan under Section 31 whereas Section 127
contemplates a period of 10 years with effect from the same date for the
consequences provided for therein to take effect. The statute, therefore,
contemplates the continuance of a reservation made for a public purpose in
a final development plan beyond a period of ten years. Such continuance
would get interdicted only upon the happening of the events contemplated by
Section 127 i.e. giving/service of notice by the land owner to the
authority to acquire the land and the failure of the authority to so act.
It is, therefore, clear that the lapsing of the reservation, allotment or
designation under Section 127 can happen only on the happening of the
contingencies mentioned in the said section. If the land owner or the
person interested himself remains inactive, the provisions of the Act
dealing with the preparation of revised plan under Section 38 will have
full play. Action on the part of the land owner or the person interested
as required under Section 127 must be anterior in point of time to the
preparation of the revised plan. Delayed action on the part of the land
owner, that is, after the revised plan has been finalized and published
will not invalidate the reservation, allotment or designation that may have
been made or continued in the revised plan. This, according to us, would be
the correct position in law which has, in fact, been clarified in Municipal
Corporation of Greater Bombay vs. Dr. Hakimwadi Tenants' Association &
Ors.[2] in the following terms :
"If there is no such notice by the owner or any person, there is no
question of the reservation, allotment or designation of the land under a
development plan of having lapsed. It a fortiori follows that in the
absence of a valid notice under Section 127, there is no question of the
land becoming available to the owner for the purpose of development or
otherwise."
20. In fact the views expressed in Bhavnagar University (supra) in para
34 is to the same effect:
"The relevant provisions of the Act are absolutely clear, unambiguous and
implicit. A plain meaning of the said provisions, in our considered view,
would lead to only one conclusion, namely, that in the event a notice is
issued by the owner of the land or other person interested therein asking
the authority to acquire the land upon expiry of the period specified
therein viz. ten years from the date of issuance of final development plan
and in the event pursuant to or in furtherance thereof no action for
acquisition thereof is taken, the designation shall lapse."
21. The facts of the present case makes it plainly clear that the notice
under Section 127 by the appellants was issued only two years after the
final revised plan under Section 38 had come into operation. The rejection
of the appellants' plea before the appellate authority under Section 47 of
the Act as well as the rejection of the writ petition filed by the
appellants before the Bombay High Court was, therefore, fully justified.
Consequently, we find no reason to interfere with the impugned order dated
20th September, 2007 passed by the High Court of Bombay. Accordingly, the
appeal is dismissed. However, in the facts and circumstances of the case,
we make no order as to costs.
.....................................J.
[RANJAN GOGOI]
.....................................J.
[R.K. AGRAWAL]
NEW DELHI,
DECEMBER 03, 2014.
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