[Cites 55, Cited by 0]
Bombay High Court
Mr. Nilesh Prakashrao More vs State Of Maharashtra Thru Its Urban ... on 27 March, 2026
Author: Ravindra V. Ghuge
Bench: Ravindra V. Ghuge
2026:BHC-AS:14949-DB
1-WP-5798-2023-(C).odt
Digitally signed
SUNNY
ANKUSHRAO
by SUNNY
ANKUSHRAO
THOTE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Date:
THOTE 2026.03.27
20:50:53
+0530
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5798 OF 2023
1. Mr. Nilesh Prakashrao More,
Age : 37 years, Occ. Agriculturist,
Indian inhabitant,
Residing at "Shri Swami Samarth"
330, Gajanan chowk Phaltan,
District : Satara, Pin : 415523 ....Petitioner
Versus
1. State of Maharashtra
Through its Urban Development
Department,
[Summons to be served on the Learned
Government Pleader appearing for
the State of Maharashtra under Order
XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
2. Regional Transport Office (RTO)
213, E Ward, Tarabai Park, Warna
Colony, Kolhapur District, Pin - 416003
[Summons to be served on the Learned
Government Pleader appearing for
the State of Maharashtra under Order
XXVII,
Rule 4, of the Code of Civil
Procedure, 1908].
3. Chief Executive Officer of the
Phaltan Nagar Parishad,
Phaltan, District : Satara.
[Summons to be served on the Learned
Government Pleader appearing for
the State of Maharashtra under Order
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XXVII,
Rule 4, of the Code of Civil
Procedure, 1908]
4. District Collector Satara,
Satara.
[Summons to be served on the Learned
Government Pleader appearing for
the State of Maharashtra under Order
XXVII,
Rule 4, of the Code of Civil
Procedure, 1908] ....Respondents
****
Mr. Yatin Malvankar, Advocate for the Petitioner.
Mr. Milind Sathe, Advocate General a/w Smt. Neha Bhide, Government
Pleader, Mr. Jay Sanklecha, 'B' Panel Counsel, Smt. R.M. Shinde, AGP for
the Respondent/State.
Mr. Vishwanath Talkute, Advocate for Respondent No.3.
****
CORAM : RAVINDRA V. GHUGE,
SANDEEP V. MARNE &
ABHAY J. MANTRI, JJ.
RESERVED ON : 5th MARCH, 2026
PRONOUNCED ON : 27th MARCH, 2026
JUDGMENT (PER : RAVINDRA V. GHUGE, J.)
1. Rule. Rule made returnable forthwith and heard finally by
consent of the parties.
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2. By an order dated 29th July 2024, passed by the Division
Bench of this Court, while hearing Writ Petition No.5180 of 2022, the
Registry was directed to place that Petition before the Hon'ble The Chief
Justice for directions under Rule 8 of Chapter I, of the Bombay High Court
Appellate Side Rules, 1960. For ready reference, we deem it appropriate to
reproduce the said order here under :
"1. Heard learned counsel for the parties.
2. The development plan for Pune was initially finalised
on 8 July 1966, reserving the Petitioner's property for the
public purpose of the Primary School. After following the
necessary procedures, this plan was revised effective 5
January 1987, maintaining the same reservation.
3. On 28th March 2013, a notice was issued under
Section 26(1) of the Maharashtra Regional and Town
Planning Act, 1966 (for short, "MRTP Act") proposing to
revise the above plan. However, before the revision could
be finalised, the Petitioners issued a notice on 23rd May
2015, which the Planning Authority received on 26th May
2015 under Section 127(1) of the MRTP Act, urging the
purchase of the said property.
4. Under the amendment to the MRTP Act, the 12-
month period prescribed in Section 127(1) for taking steps
to purchase was enhanced to 24 months, effective from 29
August 2015. There is no dispute that this 24-month notice
period under the amendment would govern the present case.
5. The revisions to the development plan were finalised
on 5 January 2017, before the expiry of the 24-month notice
period, which was 22 May 2017.
6. The Petitioner's case is that the notice dated 23rd
May 2015, issued by the Petitioner, neither lapses nor is
rendered ineffective on account of the revision of the
development plan effective from 5th January 2017. The
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Petitioner contends that on the expiry of 24 months, i.e. on
22 May 2017, the reservation lapses because, in the
meantime, the Planning Authority has failed to take steps to
acquire the said property as contemplated under the scheme
of Sections 126 and 127 of the MRTP Act.
7. At least prima facie, the petitioner's contentions find
support in the decisions of the Coordinate Division Bench
in the case of Santu Sukhdeo Jaibhave & Ors. Vs. Nashik
Municipal Corporation & Ors.1 and Sadashiv Tryambak
Rajebahadur & Ors. Vs. State of Maharashtra & Ors .2 In
similar facts, these decisions have held that the reservation
lapses if no steps are taken by the planning authority to
acquire the property.
8. However, Mr. Kulkarni, learned counsel for the Pune
Municipal Corporation (PMC), which is the Planning
Authority, relied upon the decisions of yet another
Coordinate Bench in the case of Salim Nizam Sanadi & Ors.
Vs Municipal Corporation, Sangli, Miraj and Kupwad City &
Ors.3 and Shri. Amuksidha Shrikant Majge and Anr. vs.
Commissioner, Sangli, Miraj and Kupwad Municipal
Corporation, Sangli and Ors.4 to contend that once the
revisions in the development plan are finalised, subsequent
reservation of land by the revised Development Plan would
be the fresh starting point for the period prescribed under
Section 127 of the MRTP Act. This means that as long as
the period of 10 years from the finalisation of the revised
Development Plan has not expired, there was no question of
lapsing the reservation provided in the finalised revised
development plan.
9. Again, prima facie, the decisions in Salim Nizam
Sanadi (supra) and Shri. Amuksidha Shrikant Majge (supra)
support Mr. Kulkarni's submission.
1 2022 SCC OnLine Bom. 5273
2 2023 SCC OnLine Bom. 999
3 2019(2) All MR 630
4 2018 SCC OnLine Bom. 2844
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10. In the case of Salim Nizam Sanadi (supra) and Shri.
Amuksidha Shrikant Majge (supra) considered the decision of
the Division Bench of this Court in Prafulla C. Dave & Ors.
vs Municipal Commissioner, Pune and Ors.5 However, the
decisions in Santu Sukhdeo Jaibhave (supra) and Sadashiv
Tryambak Rajebahadur (supra) considered the decision of the
Hon'ble Supreme Court in Prafulla C. Dave vs Municipal
Corporation of Pune6, affirming the decision of the Division
Bench of this Court.
11. Mr Godbole argued that the facts in Prafulla Dave
were entirely different because, in the said case, notice
under Section 127 was served after the revised
Development Plan had been finalised. He submitted that in
the present case, the notice under section 127 was
admittedly served before the finalisation of the revised plan.
Therefore, the subsequent finalisation does not affect the
notice.
12. The two sets of decisions that at least prima facie
take conflicting views do not discuss the distinction now
sought to be made by Mr Godbole. In almost similar
material facts, the two sets of decisions of Co-equal
Benches reach diametrically opposite conclusions. Based
upon the first set, this petition may have to be allowed. But
if the second set of decisions are to be followed, this
petition would have to be dismissed.
13. Similarly, none of the judgments have had the benefit
of considering some of the observations made by the Full
Bench of this Court in Vishwas Bajirao Patil Vs. State of
Maharashtra & Ors.7 The Full Bench, in the context of
deciding whether the amendment to Section 127, which
entered force on 29th August 2015 and enhanced the time
limit from 12 months to 24 months, has observed that no
5 2008 (3) Mh.L.J. 120
6 2007(6) ALL MR 207
7 2019 SCC OnLine Bom. 1770
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right is vested in a person having an interest in the land by
merely serving notice as contemplated by Section 127 of
the MRTP Act. The Full Bench observed that the right
would have vested in the landowner upon the expiry of a
period of one year from the date of issue of such notice had
the MRTP Act not been amended in the meantime.
14. Given the prima facie conflict between the two sets
of judgments delivered by the Coordinate Co-equal
Benches and the fact that certain observations made by the
Full Bench in Vishwas Bajirao Patil (supra) were not
considered, We think that this matter could be more
advantageously heard by a Bench of more than two Judges.
This conflict, according to us, could be best resolved by
resorting to the provisions of Rule 8 of Chapter I of the
Bombay High Court, Appellate Side Rules, 1960 (for short,
"the said Rules").
15. Accordingly, we direct the Registry to place the
matter before the Hon'ble Chief Justice, given the
provisions of Chapter I Rule 8 of the said Rules."
3. By the order of the Hon'ble The Chief Justice of the Bombay
High Court, dated 17th December, 2024, Writ Petition Nos.5180 of 2022
and this Petition no.5798 of 2023, were clubbed and were referred to the
Larger Bench under Rule 8 of Chapter I of the Bombay High Court
Appellate Side Rules, 1960 (the '1960 Rules').
4. Subsequently, Writ Petition No.5180 of 2022 was disposed off
by our Bench, by an order dated 25th July 2025, which reads as under :
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"1. Mr. Godbole, the learned Senior Counsel
submits that the Petitioner, who is 86 years of age, has filed
an affidavit dated 29th June, 2025. Vide the said affidavit, he
has spelt out in paragraph 3 that considering the age of the
Petitioner and other factors, including the fact that the
Planning Authority has kept the land under reservation for
60 years, he may consider withdrawing the Writ Petition
subject to appropriate directions/orders being passed by the
Court, so as to facilitate an Award as regards the
Notification dated 21st January, 2021 by following the
principles laid down in the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as "LARRA
2013") within a period of six months. The said affidavit has
been marked as 'X-1' for identification.
2. In response to the said affidavit, Mr. Kulkarni,
the learned Advocate for the Corporation, places on record
a photostat copy of a communication dated 25 th July, 2025,
signed by the three officers of the Corporation and
addressed to the Chief Law Officer of the Corporation's
Law Department dealing with the land acquisition. The
same is marked as 'X-2' for identification. The said
communication is indicative of the corporation's intention
in the proceedings with regard to the land acquisition, that
the acquisition proceedings could be completed within a
period of one year, considering that the land was reserved
for a primary school, high school and 24 meters wide D.P.
Road. The learned Advocate was instructed in the said
communication to place the same before the Court.
3. Mr. Kulkarni further submits on instructions
from the Corporation that an amount equivalent to 30%
(approximately Rs. 12,49,93,329/-) on an approximate
valuation of the land to be acquired as per the appropriate
assessment of the SLAO, would be deposited with the
SLAO, within 8 weeks.
4. Mr. Godbole submits that considering the
advanced age of the Petitioner which is 86 years and
considering his health status, it would be appropriate for this
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Court to direct the Corporation to complete the acquisition
within 9 months, instead of 1 year. Mr. Godbole further
submits that since the suggestion of the Corporation is
acceptable to the Petitioner, this Petition can be disposed
off. He further submits that since the Corporation has made
a statement before the Court, it will have to maintain the
said statement and should not be resiled from the same.
5. In view of the above, we do not find any scope
for indulgence in the said arrangement, save and except that
the Petitioner is 86 years of age and the land is under
reservation for nearly 60 years. If the Petitioner makes a
request for reducing the timeline for completing the
acquisition from one year to 9 months, we do not find that
this could be an unreasonable request. For the Petitioner, a
reduction of three months also matters. If the Corporation
acts proactively in this proceedings and initiates quick steps
with promptitude, the acquisition could be completed even
within 9 months. We, therefore, record that this Court
would appreciate the gesture of the Corporation that the
acquisition of the land would be completed with
promptitude, within 9 months.
6. Needless to state that the statement that 30%
amount would be deposited with the SLAO within 8 weeks
is recorded.
7. With the aforesaid understanding and
directions, this Petition is disposed off by consent of the
Petitioner."
PLEADINGS IN THE PETITION AND ORAL/WRITTEN SUBMISSIONS OF
THE LEARNED ADVOCATE FOR THE PETITIONER
5. The Petitioner has put forth prayers at Clauses [A] and [B],
which read as under :
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"[A] That this Honourable Court be pleased to issue a writ
of mandamus or writ in the nature of mandamus or any
other appropriate writ direction and order under Article 226
of the Constitution of India, 1950, holding that the said
reservation to the extent of the said land stands lapsed and
in furtherance thereof direct the Respondents to notify the
same by publishing in the Official Gazette under the
provisions of section 127(2) of the Maharashtra Regional
and Town Planning Act, 1966.
[B] That considering the issue involved in the
present petition and considering the nature of reliefs sought
the Petitioner most humbly prays that the present petition
may be disposed of at the stage of admission and the rule be
made absolute."
6. The dates and events indicated by the Petitioner in Writ
Petition No.5798 of 2023 and the submissions of the learned Advocate, can
be summarized as under :
a) Petitioner is the owner of land admeasuring 18 acres situated
at Survey No.112/1A/1A/1/1A/1B, village Phaltan, taluka Phaltan,
District : Satara. ('said property' for short)
b) 18.12.1992 - The said property is under reservation bearing
no.80 for the purpose of RTO pursuant to the coming into effect of
the 2nd Revised Development Plan vide Gazette Notification dated
18/12/1992.
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c) 17.12.2002 - The prescribed period of 10 years post the
Notification dated 18.12.1992 came to an end.
d) 12.05.2010 - Phaltan Municipal Council, District : Satara,
being the Planning Authority, declared its intention u/s 23 read with
Sec.38 to prepare Draft Development Plan (3rd Revision), vide its
Resolution no.37.
e) 10.09.2010 - Phaltan Municipal Council, u/s 2(19) of the
MRTP Act, 1966, declared its intention under Section 23 read
Section 38 of the MRTP Act to prepare a Draft Revised
Development Plan (3rd Revision) for the area within the limits of
Phaltan Municipal Council by gazette notification.
f) 05.03.2012 - Petitioner, by registered Sale Deed purchased
the said land from the erstwhile owner.
g) 26.09.2013 - Phaltan Municipal Council carried out the
survey of the entire land within its jurisdiction as required u/s 25 of
the MRTP Act and published a notice in the Official Gazette
inviting suggestions and objections in respect of the Draft
Development Plan (3rd Revision).
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h) 23.10.2013 - Petitioner raised objections to the reservation
on the said land proposed in the Draft Development Plan (3 rd
Revision).
i) 05.11.2014 - Phaltan Municipal Council vide its Resolution
No.32, dated 19.08.2014, made certain modifications in the Draft
Development Plan (3rd Revision) and published the said plan, so
modified in the Official Gazette dated 05.11.2014.
j) 25.11.2014 - Phaltan Municipal Council, submitted the Draft
Development Plan (3rd Revision) to the Government of
Maharashtra for its sanction.
k) 17.11.2015 - Petitioner gave a purchase notice u/s 127 of the
MRTP on to the Chief Office Phaltan Municipal Council.
l) 23.05.2016 - Draft Development Plan (3rd Revision) was
sanctioned.
m) 22.06.2016 - Final Revised Development Plan (3rd Revision)
came into effect in part.
n) 28.06.2017 - The Petitioner preferred an application for
obtaining development permission for the said land. However, the
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said application was rejected by the Phaltan Municipal Council
vide its letter dated 28.06.2017.
o) 16.11.2017 - The two years period as prescribed under the
provisions of Section 127 of the MRTP Act was completed on
16.11.2017.
7. The contentions and the grounds of objection set out by the
learned Advocate for the Petitioner are reproduced (verbatim), hereunder :-
(a) The Respondent Phaltan Municipal Council and the
Director of Town Planning and the Government of Maharashtra has
not proceeded with the acquisition of Petitioner's land. The
Respondent Authorities are not even permitting the Petitioner to
beneficially enjoy his property by refusing to grant development
permission to the Petitioner.
(b) The State Government independently could have given
the directions under the provision of Section 37, even that has also
not been done by the Government of Maharashtra. The
correspondence only shows that the Respondents are interested in
continuing the reservation without actually acquiring the land of the
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Petitioner and not making the payment and despite assurance from
the correspondences no actual amount of compensation has ever
been given to the Petitioner and the Petitioner is further being
deprived of the beneficial use of his land.
(c) Whether after publishing of a Draft Revised
Development Plan, a Purchase Notice given before and after the
period of 24 months as contemplated by Section 127 of the
Maharashtra Regional and Town Planning Act, 1966 is over, the
Revised Development Plan comes into operation, then whether the
clock for 10 years period provided in Section 127 of the MRTP Act,
1966 gets reset.
(d) The Petitioner contends that another aspect which
requires consideration is that Section 38 uses the word 'At least
once in 20 years...'. Thus, in a given case planning authority may
propose Revision of Development Plan even before the period of
10 years, from the coming into force of Development Plan, gets
over and may bring into force such Revised Development Plan
before the said 10 years period is over. In such eventuality the land
under reservation will remain land locked for another period of 10
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years and the right u/s. 127 could never be invoked. This could not
have been the intention of the legislation.
(e) The Petitioner further contends that in the present case
the erstwhile 2nd Revised Development Plan the Petitioners land
had a Reservation for RTO. The said reservation has continued in
the 3rd Revised Development Plan. Thus, there can be two
eventualities, either the said reservation of RTO was shown on the
Petitioner's land or it was not shown on the Petitioner's land, in the
Draft Revised Development Plan. In either of the eventualities the
planning authority did have the intention, at the stage of Draft
Revised Development Plan, to continue the reservation for RTO in
the final Revised Development Plan.
(f) Thus, upon receipt of the Purchase Notice from the
Petitioner after the publication of Draft Revised Development Plan,
the planning authority was not prevented from acquiring the
Petitioners property, if it so intended to reserve it further for RTO.
However, the non-acquisition of the Petitioners land after the
purchase notice and instead continuing the reservation and even till
date not acquiring the Petitioners land clearly amounts to depriving
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the Petitioner from his beneficial use of land and defeating his
substantive right to property u/ Art. 300A. These aspects have not
been dealt with in the case of Prafulla Dave (supra) and hence the
said judgment is not applicable in the facts of the present case.
(g) It is further contended by the Petitioner that the option
to invoke lapsing u/sec 127 of the MRTP Act is made available to
the land owner upon expiry of 10 years from the date of coming
into effect of the Development Plan. Similarly, the right u/s. 127
gets crystalized on the day the Purchase Notice is sent. The right is
accrued pursuant to the Notice u/s 127, in spite of the draft revised
development plan. Hence, grant of sanction to revised development
plan cannot curtail the running of the said period of 24 months
from expiring.
(h) It is further submitted by the Petitioner that there is no
restriction on the landowner to issue notice u/s. 127 of the MRTP
Act, 1966, when the revision of development plan is undertaken
under Section 38 and as a necessary corollary time or waiting
period is not suspended. In other words, the planning authority will
have to take necessary steps as per Section 127 in the period of 24
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months notwithstanding that the revision of development plan is
undertaken. Therefore, upon expiry of 24 months from the date of
notice under section 127 dated 17.11.2015, the reservation upon the
subject property has lapsed and since then the property had become
available to the Petitioner for the purpose of development.
(i) The learned Advocate for the Petitioner submits that it
is required to be noted that the MRTP is a regulatory statute,
primarily focused on planning and development of land in
Maharashtra. Whereas, right to property guaranteed under Article
300A of the Constitution of India is a substantive and constitutional
right. The MRTP Act being a regulatory statute, the provisions
therein cannot be construed in a manner to take away substantive
right, which is guaranteed under Article 300A.
SUBMISSIONS OF THE LEARNED ADVOCATE GENERAL
8. The learned Advocate General has extensively canvassed oral
submissions and has tendered written notes as well. The same are
summarized as under :-
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(A) The reference needs to be answered by considering, whether
in the light of the relevant provisions of the MRTP Act, 1966, any right that
may have accrued to the owner of the land thereunder, by service of a
purchase notice upon the relevant authority, is sought to be taken away by
imposing a fresh reservation under the revised development plan
sanctioned prior to the expiry of the prescribed period from the date of
such service.
Conditions Precedent under Section 127 of the MRTP Act, 1966
(B) Section 127 of the MRTP Act, 1966, deals with lapsing of
reservation. Under the said provision, broadly, if the land reserved, allotted
or designated for any purpose specified in any plan under the MRTP Act,
1966 is not acquired by agreement within ten years from the date on which
the final development plan has come into force or if a declaration under
Section 126(2) or (4) is not published within the said period of ten years,
the owner or any person interested in the land may serve notice along with
documents, showing his title or interest to the authority concerned and if
within 24 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
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released from such reservation, allotment or designation and becomes
available to the owner.
(C) It is pertinent to note that Section 127 of the MRTP Act, 1966
originally stipulated that reservations under a final development plan
would lapse if no effective steps were taken within a period of 6 months
from the date of service of the purchase notice. Section 127 of the MRTP
Act, 1966 was amended vide the Maharashtra Act XVI of 2009, whereby
the prescribed period was extended from 6 months to 12 months with
effect from 24th June, 2009. Thereafter, Section 127 of the MRTP Act, vide
the Maharashtra Act XLII of 2015, was again amended to increase the
prescribed period from 12 months to 24 months, with effect from 29th
August, 2015.
(D) Section 127 requires the following cumulative conditions to be
satisfied in order for a reservation to be deemed to have lapsed.
(i) That the reserved/ designated land is not acquired by
agreement within ten years from the date on which a final
development plan comes into force. This circumstance is a
peremptory condition for the operation of this provision.
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(ii) That after satisfaction of the condition (i) above, the
land owner or any person interested in the land serves a purchase
notice along with the documents of title or interest in the said land
upon the relevant authority; and
(iii) That after satisfaction of condition (i) above, if within
the prescribed period from the date of service of the purchase
notice in (ii) above, the relevant authority fails to acquire the land
or takes steps for the commencement of its acquisition.
(E) It is only on the satisfaction of these three cumulative
conditions that Section 127 of the MRTP Act, 1966 creates a legal fiction,
i.e. that the reservation of the land is deemed to have lapsed. It is submitted
that the satisfaction of any one of the above three conditions does not per-
se result in automatic lapsing. Accordingly, the mere expiry of the period
of ten years from the date on which a final development plan comes into
force and/or the service of the purchase notice by the land owner or person
interested in the land on the planning authority, does not result in the
lapsing of the reservation.
(F) The observation of the Supreme Court in Prafulla C. Dave
may be usefully referenced:
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"21. 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
proceedings for acquisition are not initiated within ten years
from the date on which the final development plan had come
into force. After service of notice by the landowner 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 landowner 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
landowner 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
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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 landowner 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 landowner or the person interested himself remains
inactive, the provisions of the Act dealing with the preparation
of revised plan under Section 38 will have full play. Action on
the part of the landowner or the person interested as required
under Section 127 must be anterior in point of time to the
preparation of the revised plan. Delayed action on the part of
the landowner, that is, after the revised plan has been finalised
and published will not invalidate the reservation, allotment or
designation that may have been made or continued in the
revised plan. (Emphasis is supplied by the learned AG)
Prerogative to revise Development Plan
(G) Until and unless such reservation is deemed to have lapsed by
operation of law under the provisions of the MRTP Act, 1966, the relevant
authorities have complete liberty to revise the development plan in terms
of the procedure under the Act and decide to continue the reservation for
the concerned land either for the same purpose or for any other purpose. In
fact, there is a statutory obligation cast upon the planning authority under
Section 38 of the MRTP Act, 1966, to revise the development plan every
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twenty years after carrying out a fresh survey, preparing the existing land
use map, etc. It is submitted that by reading Section 127(1) of the MRTP
Act, 1966 in the manner suggested by the Petitioners would be contrary to
the avowed scheme and object of the MRTP Act, 1966, i.e. to provide for
the planned development and control of land use.
No vested right after service of the Purchase Notice
(H) The Full Bench of this Hon'ble Court in Vishwas Bajirao
Patil8 whilst considering the question of whether the amendment dated 29 th
August 2015 to Section 127(1) of the MRTP Act, 1966, enlarging the
period available to the planning authority for taking effective steps for
acquisition of the reserved land from 12 months to 24 months would apply
in a case where a purchase notice contemplated under 127(1) of the MRTP
Act, 1966 has been served on the authority before the said amendment
came into force.
(I) The Full Bench observed that under the law, an amendment is
prospective, unless by express or necessary implication, it is made to have
retrospective operation. A law, therefore, which takes away or impairs any
vested right acquired under an existing law, is retrospective. In this
8 Vishwas Bajirao Patil v. State of Maharashtra 2019 SCC Online Bom. 1770
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connection, the Full Bench examined the question of whether by the
service of the purchase notice, any vested right was created in the land
owner which was sought to be taken away by the amendment. The Full
Bench held that a future interest is vested in a person if it meets the
requirement of there being no condition precedent to the interest.
Accordingly, as per the Full Bench, no right is vested in the person having
a proprietary interest in the land upon serving the purchase notice, but that
such right would have vested only upon expiry of 12 months from the date
of service of such notice. Only upon expiry of such period would any right
have vested in the land owner. Since in the facts before the Full Bench, the
amendment was made prior to the expiry of the prescribed period, no
vested right had been taken away and the case of the land owner therein
would be governed by the amended provision of the MRTP Act, 1966 viz.
24 months from the service of the purchase notice.
(J) The decision of the Full Bench is illuminating in so far as it
affirms that by the mere service of a purchase notice under Section 127(1)
of the MRTP Act, 1966, upon the planning authority, does not by itself
create any vested right in the land owner. It is only after the expiry of the
prescribed period from the date of service of such purchase notice that any
right is vested in the land owner. It may be possible to conceive of the
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effect of Section 127 of the MRTP Act, 1966, in a different manner.
Section 127 of the MRTP Act, 1966 prescribes two time periods. The two
time periods are separated by an act of the land owner in serving the
purchase notice. The first is a period of ten years from the date of the final
development plan coming into force, within which the acquisition of the
reserved land has to be completed or proceedings for acquisition ought to
have commenced. The second time period is a period of two years from the
date of service of the purchase notice upon the authority, within which the
authority is required to take effective steps for acquisition. It is only after
the elapse of the aforesaid two time periods, then the reservation of the
land is deemed to have lapsed and any right is vested in the land owner.
(K) Reference may be made to the relevant observations of this
Hon'ble Court in Vishwas Bajirao Patil as under:
23. The traditional vested rights Doctrine is based on the
principle i.e. State has the power to prescribe the Rules of
conduct for transaction or occurrences that take place on its
own territory. Once the last event of the transaction or
occurrence takes place on the territory of the State the parties
to it acquire vested right under Law of that jurisdiction.
24. A future interest is vested if it meets the requirement of
there being no condition precedent to the interest.
25. Before formally answering the reference in the instant
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case, as noted above the development plan was notified on
18-12-1999. Ten years expired on 17-12-2009. Notice under
section 127 was issued on 17-11-2014 and twelve months
would come to an end on 16-11-2015, but before that the
amendment was made on 29-8-2015 replacing the words
'twelve months' by 'twenty-four months '.
26. We thus answer the reference by holding that the
amendment is prospective but no right is vested in the person
having proprietary interest in the land upon serving the
notice. The right would have vested upon expiry of one year
of the notice had the statute not been amended on 29th
August, 2015, and thus as on the date of the amendment i.e.
29th August, 2015 there was no vested right in favour of the
noticee. The rights of the noticee would be governed by the
statute as amended on 29th August, 2015.
(Emphasis is supplied by the learned AG)
(L) The aforesaid decision of the Full Bench is binding on this Hon'ble
Court. The Full Bench decision has been consistently followed by this Hon'ble
Court, including in Atmaram Krishna Sawant v. Shaikh Abubakar Hassan9
Decisions in Salim Sanadi & Amuksidha lay down the correct position of law
(M) The decisions of this Hon'ble Court in Salim Nizam Sanadi
and Amuksidha Srikant Majge correctly interpret the law regarding the
effect of a sanction to the revised development plan under Section 127 of
the MRTP Act, 1966.
9 Pertinently, the decision of the Full Bench has been followed by this Hon'ble Court in Atmaram Krishna
Sawant v. Shaikh Abubakar Hassan Writ Petition No. 2293 of 2018 (19th December, 2019)
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(N) In Salim Nizam Sanadi, the original Development Plan had
been notified on 26th October, 1995. Thereafter, on 27th March, 2012, a
purchase notice was issued, and on 4th April, 2012 (before the expiry of one
year of the purchase notice), a fresh revised Development Plan was
sanctioned under Section 38 of the MRTP Act, 1966. The Division Bench
of this Hon'ble Court, following the decision of the Hon'ble Supreme
Court in Prafulla C. Dave (supra), held that the notification sanctioning the
revised Development Plan has to be given effect to and the period under
Section 127 of the MRTP Act, 1966 would commence from the date of the
said notification. The Court held that since the notification sanctioning the
revised Development Plan was published prior to the expiry of the
prescribed period of 12 months from the service of the purchase notice, the
reservation on the said land continues to subsist. The Court further held
that the notification sanctioning the revised Development Plan was to be
treated as the final Development Plan and the prescribed period of 10 years
would commence from the date of the notification sanctioning the revised
Development Plan under Section 38 of the MRTP Act, 1966. This Hon'ble
Court, therefore, held that the reservation on the Petitioners' land had not
lapsed.
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(O) This Hon'ble Court observed as under:
9. We have considered the submissions. We find that
Respondent No. 3, by a notification issued on 4 April 2012,
sanctioned the Revised Development Plan, and the said
land was again reserved for public purpose, viz., for a
primary school and playground under Reservation Site No.
378. The purchase notice had been issued on 27 March,
2012 by the Petitioners and served on the Respondent No.
1 on that date itself and prior to the expiry of the prescribed
period of 12 months from the service of the purchase
notice, the notification sanctioning the Revised
Development Plan had been issued. Therefore, the
reservation of the said land continued to subsist when the
Revised Development Plan again reserving the said land
for a public purpose come into force. It is clear from the
Judgment of this Court in Prafulla C. Dave (supra) that the
notification sanctioning the Revised Development Plan has
to be given effect to and the period under Section 127 of
the said Act would commence from the date of the
notification. This Court in paragraph 16 to 18 held thus: ...
10. It is therefore, clear that from this Judgment that the
notification sanctioning the Revised Development Plan is
treated as final Development Plan and therefore, the
prescribed period under Section 127 of the said Act would
commence from the date of notification sanctioning the
Revised Development Plan prepared under Section 38 of
the said Act and notified under Section 31(6) of the said
Act. In the present case, the subsequent reservation of the
said land by the sanctioned Revised Development Plan
would be the fresh starting point of the period prescribed
under Section 127 of the said Act, particularly since the
period had not expired from the service of the purchase
notice. Therefore, in our view, since the period prescribed
under Section 127 of the said Act from service of the
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purchase notice dated 27 March, 2012 had not expired
when the Revised Development Plan was sanctioned on 4
April, 2012, the reservation of the said land has not lapsed.
(P) In Amuksidha Srikant Majge, the original Development Plan
was notified on 6th April, 1979 and was in force when a purchase notice
was issued on 27th February, 2012. On 4th April, 2012, a revised
Development Plan under Section 38 of the MRTP Act, 1966, was
published. The Petitioner thereafter issued a further purchase notice on 28 th
December, 2012. It was sought to be contended by the Petitioner that the
purchase notice having been issued on 27th February, 2012, prior to the
issuance of the revised Development Plan, the revised Development Plan
will not have an effect of providing of a fresh period of 10 years under
Section 127 of the MRTP Act, 1966. The Division Bench of this Hon'ble
Court, relying upon the observations of the Hon'ble Supreme Court in
Prafulla C. Dave, held that as on the date of publication of the revised
Development Plan, the period of 1 year from the date of issuance of
statutory notice had not expired, and thereafter the reservation has not
lapsed (Para 12). It was further held that from the decision of the Hon'ble
Supreme Court in Prafulla C. Dave, it was apparent that the notification
sanctioning the revised Development Plan is to be treated as the final
Development Plan and the prescribed period under Section 127 of the
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MRTP Act, 1966 would commence on the date of notification sanctioning a
revised Development Plan.
(Q) This Hon'ble Court observed as under:
12. In the facts of the present case, the reservation of the
said property had not lapsed, as the prescribed period of
one year from the issuance of the statutory purchase notice
under Section 127 of the MRTP Act had not expired, when
the revised part Development Plan had been sanctioned by
the State Government. This Court has held that the
notification sanctioning the revised Development Plan has
to be given effect to and that the prescribed period under
Section 127 of the MRTP Act would commence from the
date of the notification. This has been held by this Court
in Prafulla C. Dave v. Municipal Corporation, Pune2.
Paragraphs 16 to 18 of the decision read thus:--
...
13. It is clear from the said decision that the notification
sanctioning the revised Development Plan is treated as
final Development Plan and the prescribed period under
Section 127 of the MRTP Act would commence from the
date of the notification sanctioning the revised
Development Plan. In the present case, the reservation of
the subject property by the sanctioned revised
Development Plan would be the fresh starting point of the
period prescribed under Section 127 of the MRTP Act.
Hence, the period of ten years provided under Section 127
of the MRTP Act would start running from the sanctioning
of the revised Development Plan on 4th April 2012 and
only upon expiry of that period, purchase notice can be
issued and upon expiry of one year from the issuance of
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the purchase notice, reservation of the said property can be
said to have lapsed. There is thus no lapsing of reservation
in the present case.
(Emphasis is supplied by the learned AG)
Reliance on Decisions in Bhavnagar, Santo Jaibhave and Sadashiv
Tryambak is misplaced
(R) The reliance placed on the decision of the Hon'ble Supreme
Court in Bhavnagar University10 is misplaced. The case arose in the context
of Sections 20 & 21 of the Gujarat Town Planning & Urban Development
Act, 197611, which legislation is materially different and does not contain
certain specific provisions embodied12 in the MRTP Act, 1966.
(S) As would be evident from the said judgment, the case arose in
a different factual situation. Under the Gujarat Act, revision of
10 Bhavnagar University v. Palitana Sugar Mills (2003) 2 SCC 111
11 "20. Acquisition of land. --(1) The area development authority or any other authority for whose purpose land
is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause
(k), clause (n) or clause (o) of sub-section (2) of Section 12, may acquire the land either by agreement or under
the provisions of the Land Acquisition Act, 1894.
(2) If the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of
the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894, are
not commenced within such period, the owner or any person interested in the land may serve a notice on the
authority concerned requiring it to acquire the land and if within six months from the date of service of such
notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as
aforesaid shall be deemed to have lapsed."
"21. Revision of development plan. --At least once in ten years from the date on which a final development plan
comes into force, the area development authority shall revise the development plan after carrying out, if
necessary, a fresh survey and the provisions of Sections 9 to 20, shall, so far as may be, apply to such revision."
12 See Section 37, 49 and 50 of the MRTP Act, 1966, which provisions are absent in the Gujarat Act.
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development plan was mandatory every ten years, coinciding the period
after which reservation would lapse, creating a unique statutory context not
present in the instant case.
(T) In that case, the land owners contended that under Section
20(2) of the Gujarat Town Planning & Urban Development Act, 1976 upon
the failure of the authorities to acquire the reserved land, after 6 months of
the service of the purchase notice and the expiry of 10 years from the
coming into force of the final development plan viz., the reservation in
question had lapsed. The authorities contended that the sanction of revised
development plan, which under Section 21 of said Act, was bound to take
place at least once in 10 years from the coming in to force of the final
development plan, arrested the lapsing of the reservation.
(U) In that case the Supreme Court held that if the contention of
the Authorities were accepted, and that upon every revision of the
development plan every 10 years from the date of coming into force of the
final development plan under Section 21 of the said Act, would start a fresh
period of 10 years, Section 20(2) of the said Act would be rendered
completely otiose. It was in this specific context that the decision was
rendered.
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(V) Some of the observations of the Supreme Court in Bhavnagar
University, which make this evident, are as under:
37. The said words indicate the intention of the legislature to
the effect that by providing revision of the final development
plan from time to time and at least once in ten years, only the
procedure or preparation thereof as provided therein is
required to be followed. Such procedural requirements must be
followed so far as it is reasonably possible. Section 21 of the
Act, in our opinion, does not and cannot mean that the
substantial right conferred upon the owner of the land or the
person interested therein shall be taken away. It is not and
cannot be the intention of the legislature that what is given by
one hand should be taken away by the other.
38. Section 21 does not envisage that despite the fact that in
terms of sub-section (2) of Section 20, the designation of land
shall lapse, the same, only because a draft revised plan is made,
would automatically give rise to revival thereof. Section 20
does not manifest a legislative intent to curtail or take away the
right acquired by a landowner under Section 22 of getting the
land defreezed. In the event the learned Solicitor-General is
accepted, the same would completely render the provisions of
Section 20(2) otiose and redundant.
(Emphasis is supplied by the learned AG)
(W) That the decision in Bhavnagar University (supra) was confined
to the factual context set out herein above is evident from some of the
subsequent decisions of this Hon'ble Court.
(i) In Manakini Ruprao Khangar v. State of Maharashtra
2023 SCC Online Bom. 1050, this Hon'ble Court distinguished the
decision in Bhavnagar University at paragraphs 19 to 22. This Court
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noted that the Supreme Court was considering the provisions of the
Gujarat Town Planning Act, wherein there was no opportunity
available for the owner of land reserved under the development plan
to issue a purchase notice in view of the fact that the revision in plan
was mandated every ten years. In that contingency, the Supreme
Court held that section 21 of the Gujarat Act, does not and cannot
mean that the substantive right conferred upon the owner of the land
or the person interested therein shall be taken away and it is not and
cannot be the intention of the Legislature that which is given by one
hand should be taken away by the other.
(ii) Similarly, in Prafulla C. Dave vs. Municipal Commissioner
2008 (3)Mh. LJ 120, this Hon'ble Court at para 11 distinguished the
judgment in Bhavnagar University on the ground that it did not
answer the question raised therein. Paragraph 11 of the judgment is
quoted as under:
"In Bhavnagar University v. Palitna Sugar Mill Pvt. Ltd.,
reported in (2003) 2 SCC 111 : AIR 2003 SC 511 the
question which arose for consideration was whether by
reason of inaction on the part of the State and its authorities
under the Town Planning Act to acquire the lands for a
period of more than 10 years, in terms of the provisions of
Land Acquisition Act, 1894 despite service of notice, the
same stood dereserved/de-designated in view of issuance
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of draft revised plan under section 21 thereof or the term of
10 years stood extended? The Supreme Court was pleased
to hold that after the period of 10 years as required under
the Gujarat Act had expired and if the land had not been
acquired in the manner contemplated merely because the
draft revised plan was issued would not automatically
extend the period of reservation. Considering section 21 of
the Gujarat Act, the Court held that section 21 of the Act,
in their opinion, does not and cannot mean that the
substantive right conferred upon the owner of the land or
the person interested therein shall be taken away and it is
not and cannot be the intention of the Legislature that
which is given by one hand should be taken away by the
other. This was in the context that the planning authority
was bound to revise the plan on the expiry of ten years
from the notification of the sanctioned draft plan and the
notice to acquire could ordinarily be given and on the
expiry of ten years from the notification of the sanctioned
plan. In other words, the owners would have no
opportunity of serving the notice if in the draft revised plan
a further extension of reservation was provided for. This
Judgment does not answer the issue which has been raised
by the petitioners herein."
(Emphasis is supplied by the learned AG)
The aforesaid decision of this Hon'ble Court was confirmed
by the Supreme Court.
(X) The reliance on the decision in Sadashiv Tryambak
Rajebahadur is misplaced. In that case, a purchase notice was issued on 8 th
July, 2015.Thereafter, on 29th August, 2015, the prescribed period of 12
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months after the issuance of the purchase notice was substituted by 24
months by an amendment to Section 127 of the MRTP Act, 1966. In the
meanwhile, a revised Development Plan was partly sanctioned on 9 th
January, 2017. Opposing the grant of any relief, the Respondent contended
that, in light of the period having been extended to 24 months, the period
after the purchase notice had not expired on the date on which the revised
Development Plan was notified, and as such, the reservation had not
lapsed. The Division Bench of this Hon'ble Court proceeded on the basis
that the amendment extending the period from 12 months to 24 months
would not apply to the notices which had already been issued prior to the
amendment. According to the Division Bench, the same would tantamount
to giving retrospective effect to the amendment. This judgment proceeds
on a premise which is contrary to the Full Bench judgment of this Hon'ble
Court in Vishwas Bajirao Patil (supra), and therefore, the said judgment is
no longer good law.
(Y) The reliance on the decision in Santo Sukhdeo Jaibhave is
misplaced. In that decision, the purchase notice was issued on 14 th July,
2015 and prior to expiry of 24 months, a revised Development Plan came
into force on 9thJanuary, 2017. An argument made on behalf of the
Respondent that a purchase notice under Section 127 could not have been
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issued after the publication of the draft revised Development Plan under
Section 26 of the MRTP Act, 1966 though admittedly not sanctioned. This
was the question framed by this Hon'ble Court in paragraph 25 of the
judgment which reads as under:
25. Question that arises for consideration of this Court is
whether the purchase notice issued by the petitioners
subsequent to the date of the Draft Revised Development
Plan for the city of Nashik would be a valid notice or not or
the petitioners were required to again wait for expiry of 10
years from the date of the Draft Revised Development Plan
for the city of Nashik and then issue a fresh notice and then if
no steps would be taken by the respondents within the time
prescribed, the reservation in respect of the writ land would
lapse at that stage or not.
(Z) This judgment at paragraph 41 proceeded on the basis that a
statutory right had accrued in the Petitioners on the issuance of the notice
which is contrary to the decision of the Full Bench in Vishwas Bajirao
Patil (supra). This judgment did not deal with the effect of the issuance of
the final notification prior to the expiry of the statutory period of 24
months and it was held as under:-
41. In the present case, the notification under Section
6, admittedly, has not been issued. The statutory notice
viz. the Purchase Notice under Section 127 of the
MRTP Act was issued on 14th July 2015 and it is
evident that no steps as contemplated under Section
126(1)(c) read with Section 127 were taken before the
expiry of the statutory period of 24 months. We are
unable to agree with the submissions of Ms. Deshmukh
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on the application of the judgment of Prafulla C.
Dave (supra) as it would deprive the petitioners of their
statutory rights. In this regard, the Apex Court in the
case of Godrej And Boyce Manufacturing Company
Limited (supra) has held that the statutory right
accrued to the owners cannot be taken away by an
attempt to impose fresh reservation. We are also unable
to agree with the contention of Mr. Patil that the
publication of the Draft Revised Plan having been
published prior to the issuance of the Purchase Notice
and the same would have an effect of continuing the
reservation on account of the same being sanctioned
subsequently.
(AA) The decision in Santo Sukhdeo Jaibhave has been clarified by
the Hon'ble Bombay High Court subsequently in Babanrao Dattu13. The
Division Bench of the Hon'ble Bombay High Court has held that a right of
de-reservation accrues to the landowner upon application of deeming
fiction if he issues notice to the appropriate authority and the said authority
fails to take steps for acquisition of the land in question within the period
prescribed under Section 127 of the MRTP Act, 1996.
(BB) In relation to the decision in Santo Sukhdeo Jaibhave, the
Division Bench of this Hon'ble Court clarified as under:
"In the case of Santu Sukhdeo Jaibhave (Supra), a Coordinate
Bench of this court has taken a view that in a case involving
question of deemed lapsing of reservation, the draft revised
development plan has no legal sanctity and it cannot be
13 Babbanrao Dattu v. State of Maharashtra 2023 SCC Online Bom. 1590
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considered as final. In other words, the Division Bench has
taken a view that the question of deemed lapsing of
reservation can be examined only in the context of final
revised development plan and not in the context of draft
revised development plan and if purchase notice has been
issued after draft revised development plan is published but
before it has received sanction so as to become a final revised
development plan, the right shall accrue to the land owner to
seek benefit of deemed lapsing of reservation, if other
conditions of Section 127 of the MRTP Act are fulfilled."
(CC) No conflict therefore arises between the decisions in the case
of this Court in Salim Nizam Sanadi and Amuksidha Majge on the one
hand and Santu Sukhadeo Jaibhave and Sadashiv Tryambak Rajebahadur
on the other hand. On the consideration of the aforesaid, it is apparent that
decision in Salim Nizam Sanadi and Amuksidha Majge which dealt
directly with the issue of the effect of a revised Development Plan being
notified prior to the expiry of the statutory period after issuance of the
purchase notice. Neither the judgment in Santu Jaibhave nor the judgment in
Sadashiv Rajebahadur dealt with this issue. Both these decisions dealt with
the effect of draft Development Plan being issued prior to the expiry of the
statutory period after the purchase notice.
(DD) The Petitioner has contended that Section 38 of the MRTP
Act, 1966, requires the Planning Authority to revise the Development Plan
"at least once in 20 years" and therefore, in a given case the Planning
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Authority may propose the revision of the Development Plan even before
the expiry of period of 10 years, thereby frustrating the purported rights of
the landowner available under Section 127 of the MRTP Act, 1966. The
Petitioner implies that the provision may be abused to deny the landowners
of the rights conferred under Section 127 of the MRTP Act, 1966.
(EE) It is settled law that a mere possibility of the abuse of a
provision does not affect its construction. The construction of a statutory
provision cannot be determined on the assumption that the executive or
authority will abuse the provision in an arbitrary manner in exercise of the
discretion conferred on it.14 It is therefore submitted that the Petitioner's
contention as to possibility of abuse cannot be accepted.
(FF) It is further submitted that the fact that in the Revised
Development Plan sanctioned under Section 38 of the MRTP Act, 1966 the
concerned land continues to be reserved for the same purpose is of no
relevance. As set out herein above, under the provisions of the MRTP Act,
1966 the Planning Authority has complete liberty to revise the
Development Plan in terms of the procedure under the Act and can decide
to continue the reservation for the concerned land either for the same
14 See Generally DK Trivedi & Sons v. State of Gujarat 1986 SCC Online SC 374 at Pr. 50; Collector of Customs
v.; State of Punjab at Pr. 34
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purpose or for any other purpose. The Petitioner's contentions in this
regard are devoid of any merit.
(GG) In Godrej & Boyce Manufacturing Company Ltd.15, challenge
was laid to the notification dated 5 th August 2008, issued by the State
Government under Section 37(1) of the MRTP Act, 1966, proposing to
modify the development plan by deleting the reservation of the land in
question from Railways and adding the reservation for Road. In that case,
10 years after the expiry of the development plan, the Appellant issued a
purchase notice dated 04th September 2002 under section 127 of the MRTP
Act, 1966. The period of six months prescribed at the relevant time under
Section 127 of the MRTP Act, 1966, after issuance of the purchase notice
had expired on 03rd March 2003. In this context, the Supreme Court set
aside the notification dated 05th August 2008 modifying the reservation
under the development plan, holding that upon the expiry of 10 years and 6
months' notice period, the Appellant acquired a statutory right over the
land, and in view thereof, the notification could not be given effect to. The
relevant extracts from the said judgment are reproduced as under :
15 Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra (2015) 11 SCC
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17. By a careful reading of the provisions of Sections 127
and 37(1) of the MRTP Act, which are extracted as above
abundantly make it clear that the State Government is not
empowered to delete the reservation of the land involved in
this case from railway use and to modify the same for
development plan of road in the development plan after
expiry of 10 years and 6 months' notice period was over as
the appellant has acquired the valuable statutory right upon
the land and the reservation of the same for the proposed
formation of railway track had lapsed long back. Further
Respondent 2 vide its Letter dated 1-11-2004 has stated
that there is no proposal for acquisition of land for the
purpose for which it was reserved.
20..... Therefore, we have to hold that the impugned
notification is bad in law and liable to be quashed. The
High Court has not examined the impugned notification
from the viewpoint of Section 127 of the MRTP Act and
interpretation of the abovesaid provision made in Girnar
Traders (2) [Girnar Traders (2) v. State of Maharashtra,
(2007) 7 SCC 555], therefore, giving liberty to the
appellant by the High Court to file objections to the
proposed notification is a futile exercise on the part of the
appellant for the reason that the State Government, once
the purpose the land was reserved for has not been utilised
for that purpose and a valid statutory right is acquired by
the landowner/interested person after expiry of 10 years
from the date of reservation made in the development plan
and 6 months' notice period has also expired, the State
Government has not commenced the proceedings to
acquire the land by following the procedure as provided
under Sections 4 and 6 of the repealed Land Acquisition
Act, 1894. Therefore, the land which was reserved for the
above purpose is lapsed and it enures to the benefit of the
appellant herein. Therefore, it is not open for the State
Government to issue the impugned notification proposing
to modify the development plan from deleting for the
purpose of the Railways and adding to the development
plan for the formation of development plan of road after
lapse of 10 years and expiry of 6 months' notice served
upon the State Government.
(Emphasis is supplied by the learned AG)
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(HH) In Kesaranand Ginning & Pressing Factory v. State of
Maharashtra(Aurangabad Bench)Writ Petition No. 8878 of 2015 (order dated
25th February 2016), the Respondent authority sought to resist a declaration
of lapsing by the landowner, on the ground that upon the publication of the
revised development plan, a fresh purchase notice under Section 127 of
MRTP Act had not been issued. In that case, the revised development plan
was published on 04th December 2012, more than 1 ½ years from the
service of the purchase notice dated 09th March 2011 under Section 127 of
the MRTP Act, 1966. Relying upon the decision in Godrej and Boyce
Manufacturing Company Limited vs. State of Maharashtra (2015) 11 SCC
554, this Hon'ble Court held that upon the expiry of 1 ½ years from the
date of service of the purchase notice, the rights of the Petitioners stood
crystalised. It is pertinent to note that at the relevant time, the prescribed
period under Section 127 of the MRTP Act, 1966 was 12 months from the
date of service of the purchase notice.
(II) In Natwarlal Dhanjibhai Vora v. State of Maharashtra (Aurangabad
Bench) Writ Petition No. 8996 of 2018 (order dated 03rd May 2023), the
Respondent authority sought to resist a declaration of lapsing by the
landowner, on the ground that a revised development plan had been
published. In that case, the final development plan came into effect on 31 st
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October 1981. After the expiry of 10 years therefrom, the Petitioner vide
purchase notice dated 08th March 2011 called upon the planning authority
to acquire the land. However, admittedly, the planning authority failed to
do so within 1 year of the service of the purchase notice, which was the
period prescribed at the relevant time. Relying upon the decision in
Kesaranand Ginning (supra), the High Court noted that the revised
development plan came into effect after 1 ½ years of the service of the
purchase notice under Section 127 of the MRTP Act, and the rights of the
Petitioner stood crystalised. (Pr. 9).
(JJ) The SLP against the judgment of the Aurangabad Bench was
dismissed by the Supreme Court, stating that it was not inclined to interfere
with the impugned judgment. It is well settled that the doctrine of merger is
inapplicable to the dismissal of SLPs by the Hon'ble Supreme Court. In
other words, an order refusing special leave to appeal does not stand
substituted in place of the order under challenge ( See Kunhayammed & Ors.
v. State of Kerala 2000(6) SCC459)
(KK) In Leelabhai Champalal Chajjed v. State of Maharashtra
(Aurangabad Bench) Writ Petition No. 8355 of 2023 (order dated 02nd
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February 2024) the petition seeking declaration of lapsing of reservation
was sought to be resisted on the ground that a modified development plan
with effect from 15th May 2012 had been sanctioned under Section 37 (1)
of the MRTP Act, 1966 and therefore, the purchase notice dated 22 nd June
2000 was premature. In this context the High Court citing the judgments
in Girnar Traders, Santu Sukhdeo Jaibhave and Natwarlal Dhanjibhai Vora
held that despite the expiry of a more than a decade after the issuance of
the purchase notice dated 22nd June 2000, the authority had failed to take
any effective steps as contemplated under Section 127 of the MRTP Act,
1966 and the Petitioner's rights stood crystalised as held by the Supreme
Court in Godrej Boyce.
OUR ANALYSIS AND CONCLUSION
9. On considering the sequence of dates and events, on which
there is no dispute, we find that the following aspects are decisive :-
(a) The land at issue has been subjected to reservation
bearing no.80 for the purpose of constructing the Regional
Transport Office ('RTO') vide the second Revised Development
Plan dated 18th December, 1992 under the provisions of the MRTP
Act, 1966.
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(b) The requisite period of 10 years for issuing a purchase
notice expired on 18th December, 2002.
(c) The owner has not issued any purchase notice
immediately after 18th December, 2002.
(d) On 10th September, 2010, the Planning Authority
declared its intention in the Maharashtra Government Gazette, to
prepare a Draft Development Plan (Third Revision) from the Area
within the limits of Phaltan Municipal Council.
(e) On 5th March, 2012, a Registered Sale Deed was
executed by Shrikrushna Ramchandra Damodare, by virtue of
which, the present Petitioner, Nilesh Prakashrao More became the
owner of the Writ Property.
(f) The Petitioner has raised objections on 23rd October,
2013 in respect of the Third Revised Draft Development Plan. Yet,
a purchase notice was not issued.
(g) On 19th August, 2014, the Phaltan Municipal Council
passed a Resolution No.32 and made certain modifications in the
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Third Revised Draft Development Plan. Yet, a purchase notice was
not issued.
(h) On 17th November, 2015, the Petitioner issued a
purchase notice under Section 127 of the MRTP Act, 1966. This is
undisputed.
(i) On 5th March, 2016, Reservation Notice was addressed
by the Phaltan Municipal Council to the Collector Satara with a
proposal to acquire the land under reservation.
(j) On 23rd May, 2016, the Government of Maharashtra
issued a notification granting partial sanction with modification to
the Third Revised Draft Development Plan.
(k) On 16th March, 2017, the Deputy Director Town
Planning, Satara, addressed a letter to the RTO, Kolhapur bringing
to his notice that Reservation No.80 was for the purpose of
constructing a building for the RTO.
(l) The Petitioner preferred an application to the Phaltan
Municipal Council for obtaining development permission for his
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land (writ land under reservation), which was rejected by the
Municipal Council on 28th June, 2017.
10. For ready reference, we are reproducing the relevant Sections
2(19), 31(1), 31(6), 38, 126 & 127 of the MRTP Act, 1966 hereunder, :-
"2(19). Definition
[(19) "Planning Authority" means a local authority;
and includes,-
(a) a Special Planning Authority constituted or
appointed or deemed to have been appointed under section 40;
(b) in respect of the slum rehabilitation area declared
under section 3C of the Maharashtra Slum Areas (Improvement,
Clearance and Redevelopment) Act, 1971, the Slum
Rehabilitation Authority appointed under section 3A of the said
Act;]"
Section 31 - Sanction to draft Development plan
(1) Subject to the provisions of this section, and not
later than [twelve months] from the date of receipt of such plan
from the Planning Authority, or as the case may be, from the said
Officer, [ * * *] the State Government may, after consulting the
Director of Town Planning by notification in the Official Gazette
sanction the draft Development plan submitted to it for the whole
area, or separately for any part thereof, either without
modification, or subject to such modifications as it may consider
proper or return the draft Development plan to the Planning
Authority or as the case may be, the said Officer for modifying
the plan as it may direct or refuse to accord sanction and direct
the Planning Authority or the said Officer to prepare a fresh
Development plan:
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[Provided that, the State Government may, if it thinks
fit, whether the said period has expired or not, extend from time
to time, by notification in the Official Gazette, the period for
sanctioning the draft Development plan or refusing to accord
sanction thereto, by such further period as may be specified in
the notification:]
[Provided further that, where the modifications
proposed to be made by the State Government or submitted by
the Planning Authority under section 30 and proposed to be
approved by the State Government without any further change
are of a substitutional nature with respect to the draft
Development plan published under Section 26, the Government
shall publish a notice in the Official Gazette and also in not less
than two local newspapers inviting objections and suggestions
from any person in respect of the proposed modifications within
a period of one months, from the date of such notice]:
........
........
"(6) A Development plan which has come into operation
shall be called the "final Development plan" and shall, subject to
the provisions of this Act, be binding on the Planning Authority."
"38. Revision of Development Planning.
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."
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"126. Acquisition of land required for public purposes specified in
plans
(1) When after the publication of a draft Regional
plan, [structure 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, except 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 lessors interest to be determined by any of the said
Authorities concerned [on the basis of the principles laid
down in the Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act,
2013], 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 in application to the State Government for
acquiring such land [under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013] ,
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 provisions of
the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013], as the
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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 19 of the Right to Fair Compensation
and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013], 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 19],
the Collector shall proceed to take an 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,-
(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 an
undeveloped area ; and
(iii) in any other case, the market value on the date of
publication of the interim development plan, the draft
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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 :
Provided further that, for the purpose of clause (ii) of
this sub-section, 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, 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], the State Government may make a fresh declaration for
acquiring the land [under the provisions of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013], 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.]"
127. Lapsing of reservations
"[(1) If any land reserved, allotted or designated for
any purpose specified in any plan under this Act is not acquired by
agreement within ten years from the date on which a final
Regional Plan, or final Development Plan comes into force [or if a
declaration under sub-section (2) or (4) of section 126 is not
published in the Official Gazette within such period, the owner or
any person interested in the land may serve notice, along with the
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documents showing his title or interest in the said land, on the
Planning Authority, the Development Authority or, as the case
may be, the Appropriate Authority to that effect; and if within
[twenty-four 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.
[(2) On lapsing of reservation, allocation or
designation of any land under sub-section (1), the Government
shall notify the same, by an order published in the Official
Gazette.]"
11. The much debated question that falls for our consideration is
framed as under :-
'whether the sanction of the revised development plan, imposing a fresh
reservation, after the receipt of the purchase notice, and before the expiry
of the prescribed period of two years from the date of service of such
notice, would continue the reservation for a further period of ten years?'
We have formulated the above issue, keeping in mind that the
law on sanctioning a revised development plan, prior to the service of the
purchase notice, and also after the expiry of the prescribed period from the
date of service of such notice under Section 127(1) of the MRTP Act, 1966,
is no longer res integra [ Prafulla C. Dave vs. Municipal Commissioner (2015)
11 SCC 90].
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12. It is, thus, well settled that there is no vested right in an owner
of the land or a person interested in the land to seek lapsing of reservation.
A claim for lapsing would get converted into a right, only after all the
requisites u/s 127 are satisfied. In short, the said claim for lapsing of
reservation would assume the character of a right, only after the
requirements under section 127 are satisfied.
13. The Division Bench (herein after 'The Referring Bench') had
noticed a conflict of views between the Division Benches of this Court,
and vide the order dated 29th July 2024, expressed a view that the Hon'ble
The Chief Justice of the Bombay High Court may consider referring the
matter to a bench of 3 Judges. Since no issues as such were framed, the
proceedings have been referred to our Bench for a decision, under Chapter
I, Rule 8 of the 1960 Rules.
14. On perusing of view of the Referring Bench and the
judgments cited, We observe that the view of the Full Bench of this Court
in Vishwas Bajirao Patil (supra), was never brought to the notice of the
Division Benches, which observation is shared by the Referring Bench in
it's reference order. Nevertheless, there is no dispute before us that the
Petitioner admits that the period of 2 years (24 months) from the date of
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the issuance of the purchase notice u/s 127, would have expired on 16 th
November, 2017.
15. In the above backdrop, the question is, what would be the fate
of the purchase notice when the revised development plan was finalised by
the State on 23/05/2016, which is after the amendment introducing the 24
months period instead of the 12 months. Even otherwise, the revised
development plan was finalised within 12 months from the date of receipt
of the purchase notice, which is 17/11/2015.
16. In Prafulla C Dave (supra), the Hon'ble Supreme Court has
crystallised the law that, if the revised development plan is finalised u/s 38
before the issuance of the purchase notice, the reservation get a new lease
of life of 10 years and the owner is precluded from issuing a purchase
notice within 10 years from the date of the finalisation of the revised
development plan. It is also crystallised that if the revised development
plan is sanctioned after two years from the receipt of the purchase notice,
the reservation would stand lapsed. It is also trite law that an owner of
the land under reservation or any person having interest, would have no
vested right towards lapsing of reservation, until the passage of 24 months
from the receipt of the purchase notice.
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17. Section 38 clearly permits revision in the development plan,
once in 20 years. In the facts of the case before us, there was no revision in
the 20 years preceding the revision on 23/05/2016. Section 38 of the MRTP
Act, 1966 cannot be rendered nugatory or itiose. What is permissible in
law cannot be obliterated. The Council had adhered to section 38 when the
draft development plan was submitted to the State which finally revised the
plan on 23/05/2016. This revision cannot be faulted, much less, legally.
Under section 38, the Planning Authority has the freedom and liberty to
revise the Development Plan by following the procedure under the Act. It
can proceed to continue the reservation over the concerned land, either for
the same purpose or for any other purpose, which change is not legally
barred. The said land, therefore, continues to be under reservation and at no
stage can such reservation be said to have auto-lapsed. In the present case,
the purpose for the reservation is not changed, though any change would
not have inured to the advantage of the Petitioner.
18. In Writ Petition No.9610 of 2019 (Vinod Ramnarayan
Agrawal And Others V/S. The State of Maharashtra And Others) decided
by the Aurangabad Bench on 24th April 2023, the issue of filing of a Writ
Petition seeking issuance of the Writ of Mandamus to declare the lapsing
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of reservation, was dealt with. Noticing that the Writ Petition was filed
before the expiry of the two years from the issuance of the notice, it was
held that such a Petition was premature and deserved to be dismissed. The
relevant conclusions are found in paragraphs 15, 16 and 17, which read as
under :-
"15. However, the notice under Section 127(1)
was issued on 07.09.2017 and the petition has been filed
on 04.07.2019 that is within 24 months of the date of
notice. By virtue of the amendment in Section 127 which
came into effect from 29.08.2015 vide Section 7 of the
Maharashtra Act 42 of 2015 a period of 24 months from
the date of service of the notice has been kept as a
window for the planning authority to take steps towards
acquisition. It is trite that this statutory period is
mandatory and the decisions are in plenty.
16. In the matter of Prafulla C. Dave (Supra)
which has been referred to and relied upon by a full
bench of this Court in the matter of Madanlal Zumberlal
Nahar and others Vs. The Chief Officer Municipal
Council Beed and others, in Writ Petition 2260/2010 with
WP 4232/2008 decided on 13.03.2023, though in a little
different context, this period has been held to be
mandatory.
17. Pertinently, in the matter of Hasmukhrai
(supra), the period that was consumed by way of
pendency of the petition was held to be entitled to be
considered by way of tagging to this statutory period.
However, in the matter of Chhabildas (supra), it has been
emphatically held that the decision in the matter of
Hasmukhrai and even a similar view taken by the
Supreme Court in the matter of Chhabildas was in
exercise of the powers under Article 142 of the
Constitution which powers the High Courts does not
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have. Therefore, when the petition has been filed on
04.07.2019, even before expiry of 24 months of service
of notice under Section 127 on 07.09.2017 as is appearing
on acknowledgment in the copy of the notice (Exh. 'D'),
we are afraid, the petitioners are not entitled to seek any
declaration regarding lapsing of reservation."
19. The Hon'ble Supreme Court has crystallised the law in
Prafulla C Dave (refer to paragraph no. 21 of the said judgment
reproduced herein above) that, if 'a revised plan under Section 38 comes
into effect, before the issuance of the notice u/s 127, 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. 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
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by Section 127 i.e. giving/service of notice by the landowner 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 landowner or the person interested
himself remains inactive, the provisions of the Act dealing with the
preparation of revised plan under Section 38 will have full play. ......'
20. The decision of the Full Bench of this Court in Vishwas
Bajirao Patil (placing reliance upon Prafulla C Dave) clears all doubts
about the creation of the right to seek lapsing of reservation. The Full
Bench has concluded that no right is vested in a person having an interest
in the land by merely serving a notice as contemplated under Section 127
of MRTP Act. Such right would vest in the landowner upon the expiry of
the period of one year from the date of issuance of such notice . This period
of one year is now amended and extended to two years. The Full Bench
answered the reference by concluding that the right would have vested
upon the expiry of one year (now read as two years) of the notice. As such,
there is no right created in favour of the noticee till the expiry of two years.
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21. Considering the law as it stands today, we conclude as under :-
a) no right for lapsing of reservation is vested in the owner
purely on the issuance of the purchase notice u/s 127, until the
passage of 24 months from the date of service of the notice.
b) as a consequence of the above, a Writ Petition seeking
issuance of a Writ of Mandamus or an order or direction to declare
the lapsing of the reservation, cannot be filed until the expiry of 24
months from the date of receipt of the purchase notice u/s 127.
c) in view of the dictum of the Hon'ble Supreme Court in
Prafulla Dave (supra), if the revised final development plan is
effected by strict compliance of section 38, after the receipt of the
purchase notice and prior to the expiry of 24 months, the
reservation shall continue for a further period of 10 years and only
after the expiry of the 10 years, can the owner or the interested
party issue a fresh purchase notice u/s 127.
22. As a consequence of the above, we record that the view
expressed by the Division Bench of this Court in Salim Nizam Sanadi
(supra) and Shri. Amuksidha Shrikant Majge (supra), lay down the correct
position of law.
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23. Pursuant to our aforestated conclusion, the prayers put forth in
this Petition by the Petitioner are devoid of merit and this Writ Petition,
therefore, dismissed.
24. Rule is discharged.
[RAVINDRA V. GHUGE, J.]
[SANDEEP V. MARNE, J.]
[ABHAY J. MANTRI, J.]
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