Supreme Court of India
HASMUKHRAI V MEHTAversusSTATE OF MAHARASHTRA AND OTHERS
- Citation
- 2014 INSC 828
- Decided
- 3 December 2014
- Disposal
- Appeal(s) allowed
- Bench
- VIKRAMAJIT SEN
Holding
The land is deemed released from reservation under Section 127 of the MRTP Act as no steps for acquisition were taken for over twenty years, and the appellant cannot be deprived of using his property indefinitely.
Summary
The appellant, Hasmukhrai Mehta, owned land in Village Sheel, Raigad, which was originally included in a 1977 residential development plan. In 1999 the land was re‑designated for an Agricultural Produce Market Yard and a truck terminal, and the appellant served a purchase notice under Section 49 of the Maharashtra Regional and Town Planning Act, 1966. Despite repeated representations, the Agricultural Produce Market Committee and the municipal authorities failed to commence acquisition proceedings for more than twenty years. The High Court dismissed the writ petition, holding that the purchase notice was ineffective because the development scheme was not finalised. On appeal, the Supreme Court held that under Section 127 of the MRTP Act, reservation lapses when no acquisition steps are taken within ten years, and consequently the land must be released to the owner. The Court set aside the High Court order and directed that the land be released from reservation.
Issues considered
- Whether the land must be released from reservation under Section 127 of the MRTP Act due to the authorities' inaction for over ten years.
- Whether a purchase notice under Section 49 of the MRTP Act is deemed confirmed after six months in the absence of a final order.
- Whether the High Court erred in holding that the purchase notice was of no help because the development scheme was not finalised.
- Whether the authorities are bound to acquire the land within the period prescribed under Sections 126 and 127, or to release it.
- Whether the appellant’s right to develop the land for residential purposes can be enforced despite its reservation for APMC.
Legislation cited
- Land Acquisition Act, 1894
- Maharashtra Municipalities Act, 1965s. 89(4)
- Maharashtra Regional and Town Planning Act, 1966s. 126, s. 127, s. 49
Subjects
Maharashtra Regional and Town Planning ActSection 49Section 127Land reservationLand acquisitionRelease of reservationPurchase noticeRight to propertyRegulatory planning lawDoctrine of legitimate expectationAdministrative inaction
Judgment
• [2014) 11 S.C.R. 377
HASMUKHRAI V MEHTA
v.
A
STATE OF MAHARASHTRA AND OTHERS
(Civil Appeal No. 1387 of 2008)
DECEMBER 03, 2014
B
[VIKRAMAJIT SEN AND PRAFULLA C. PANT, JJ.]
Maharashtra Regional and Town Planning Act, 1966:
s.49 rlw. s. 127 - Appellant-owner of suit land seeking
directions from the High Court either to release his land from C
reservation and to allow him to develop the properly for
residential use or in alternative, to declare his land stood
acquired for the purpose of Agricultural Produce Market
Committee and Truck Terminal for which it was reserved -
Held: Appellant cannot be deprived from utilizing his properly D
for an indefinite period - Since no steps were taken by
authorities for more than 20 years either for acquisition or for
purchase of land under the Act, land released from
reservation u/s.127 of the Act.
Allowing the appeal, the Court E
HELD: In the instant case since neither steps have
been taken by the authorities concerned for acquisition
of the land, nor the land of the appellant is purchased
under purchase notice, nor he is allowed to use the land F
for last more than twenty years, the land will have to be
released as the appellant cannot be deprived from
utilizing his property for an indefinite period. Inaction on
the part of APMC and bonafide act of appellant are
apparent from the documents on record. A perusal of G
letter dated 15.7.1991 showed that the Municipal Council
granted permission for demarcation of the plot in
question and allowed that the plot be used by the
appellant for residential purpose. Another document on
377 H
A
378 SUPREME COURT REPORTS [2014] 11 S.C.R.
record was letter dated 23.4.2001 sent by the Municipal
•
Council to the Agriculture Produce Market Committee,
wherein it was expressly mentioned that if action of
acquisition of land not started within time limit mentioned
under MRTP Act, 1966, the Committee (APMC) would be
8 responsible for lapse of reservation of the land. Also,
Report dated 21.4.2003 of Town Planning and Valuation
Department addressed to the Principal Secretary of the
Urban Development Department of State of Maharashtra
showed that the Committee (APMC) and the State
C Government were reminded of the fact regarding the
requirement of acquisition proceedings and the fact that
it was yet not known that any action for land acquisition
was taken till the report was submitted or not. Necessity
of early action was reiterated in the letter. However, no
steps were taken for acquisition. Since no steps appear
D to have been taken for last more than twenty years either
for acquisition or for purchase of the land under MRTP
Act, 1966 by the authorities concerned, as such, the land
in question stands released from reservation under
Section 127 of the MRTP Act. [Paras 14, 15, 17) [388-H;
E 389-A-F; 390-A-B]
T. Vijayalakshmi and others vs. Town Planning Member
and another (2006) 8 sec 502: 2006 (7) Suppl. SCR 534;
Gimar Traders vs. State of Maharashtra and others (2007) 7
F SCC 555: 2007 (9) SCR 383 - referred to.
Case Law Reference:
2006 (7) Suppl. SCR 534 referred to Para 12
2007 (9) SCR 383 referred to Para 13
G
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
1387 of 2008.
From the Judgment & Order dated 17.07.2007 of the High
Cour of Judicature of Bombay in Writ Petition No. 2266 of
H 2004.
• HASMUKHRAI V. MEHTA v. STATE OF
MAHARASHTRA
V.A. Mohta, Manoj V. George, T.V. George, Aakarsh
· Kamra, Siju Thomas, Devansh Mohta, Neelkanta Nayak, B.D.
379
A
Das for the Appellant.
Shankar Chillarge, Addi. Govt. Adv, Sonia Shankar
Chillarge, Anirudha P. Mayee, S.R. Setia for the Respondents. 8
The Judgment of the Court was delivered by
PRAFULLA C. PANT, J. 1. This appeal is directed
against order dated 17'.7.2007 whereby the High Court of
Judicature at Bombay has discussed the Writ Petition No. 2266 C
of 2004, seeking direction either to release the appellant's land
situated in Village Sheel, District Raigad in terms of Section
49 read with Section 127 of Maharashtra Regional and Town
Planning Act, 1966 (hereinafter referred to as "MRTP Act"), from
reservation and allow the appellant to develop the property for D
residential use, or, in alternative, to declare the appellant's land
stood acquired for the purposes of Agricultural Produce Market
Committee (for short "APMC") and Truck Terminal (for which it
. was reserved).
E
2. In brief, factual matrix of the case is that the appellant
Hasmukhrai Vanmalidas Mehta owns land in Survey No. 16,
Hissa No.3 and Survey No. 18, Hissa No. 4, situated in Village
Sheel, Taluka Khopoli, District Raigad in the State of
Maharashtra. On 14.02.1990, he applied to the Planning F
· Authority seeking permission to carry out development of land
with necessary documents as required under Section 44 of
MRTP Act. The appellant was granted permission and issued
commencement certificate dated 03.04.1990 by respondent
No.4 (Chief Officer, Khapoli Municipal Council) under Section G
45 of said Act read with Section 89(4) of Maharashtra
Municipalities Act, 1965. The Development Plan of Khopoli
Municipal Council was sanctioned by the Government, vide
Order No. TPS/1476/32/UD-5 dated 17.12.1976. It is pleaded
on behalf of the appellant that the land in question, belonging H
A
380 SUPREME COURT REPORTS [2014] 11 S.C.R.
to the appellant, was included in the residential zone in the
•
sanctioned plan of 15.1.1977. It is further pleaded that on
15.7.1991, the Chief Town Planning Officer granted 'No
Objection Certificate' for utilization of the land for non-
agricultural purpose. From communication dated 15. 7 .1991,
B made by respondent No. 4 it reveals that Development Plan
for residential purpose was sanctioned, and commencement
certificate was issued by him on 19.6.1992 for construction.
Development charges amounting Rs.1,92,490/- were also
recovered from the appellant by getting served notice dated
c 31.07 .1998, for use of land for residential purpose.
3. However, on 14.1.1999 the appellant was informed by
the respondent No. 4 that a fresh development scheme of
Khopoli town has been prepared which includes appellant's
D survey Nos. 16/3 and 18/4 as a part of land reserved for
Agriculture Produce Market Yard (for short "APM Yard") and for
Truck Terminal. Reacting to it, on 17.8.2000 the appellant
served a purchase notice under Section 49 of the MRTP Act
as the land in question was already in the sanctioned plan left
E in 1977 for residential purposes. In reply to this, Director, Town
Planning, vide his communication dated 16.3.2001, though
confirmed receiving of the purchase notice, but directed the
appellant to contact APMC, Khopoli. The Directior, Town
Planning wrote separate letter to Chief Officer of Municipal
F Council of Khopoli that the proceedings of land acquisition for
APM Yard be initiated within one year from 16.3.2001 failing
which it would amount to release of the Jand from the reservation .
for APM Yard. Consequently, Khopoli Municipal Council wrote
a letter on 23.4.2001 to APMC to immediately initiate
G acquisition proceedings and to act on purchase notice served
by the appellant. The appellant himself wrote a letter to
respondent No. 5 (APMC) requesting for initiation of acquisition
proceedings. Another letter was sent on 6.7.2001 by the
respondent No. 4 to respondent No. 5 calling upon it to take
H necessary ·steps for acquisition of the appellant's land.
• HASMUKHRAI V. MEHTA v. STATE OF
MAHARASHTRA [PRAFULLA C. PANT, J.]
However, no steps were taken for one year, i.e., by 15.3.2001.
Respondent No. 4 again reminded respondent No. 5 between
381
A
September, 2001 to March, 2002 to complete the acquisition
proceedings. When nothing was done, the appellant again on
5.7.2002 sought revalidation of the permission for construction
earlier allowed to him. After running from pillar to post, the B
appellant made a representation dated 13.2.2003 to the
Secretary, Urban Development, Government of Maharashtra,
on the above issue, but to no avail. Ultimately, the appellant filed
writ petition in February, 2004 complaining that the respondents
are neither acquiring land belonging to the appellant nor C
releasing the same from reservation for APM Yard, and sought
necessary directions from the High Court.
4. By impugned order the High Court, by its two
paragraphs order, dismissed the writ petition by observing that D
notice dated 17 .8.2000 given by the writ petitioner (present
appellant) invoking the provisions of Section 49 of the MRTP
Act is of no help as the Development Scheme by then was not
finalized. It is further observed by the High Court that Section
127 of the MRTP Act contemplates that the land be acquired E
by the Planning Authority within a period of 10 years after
reservation, but in the present case, plan was finalized in
March, 2003, as such before the expiry of ten years elapsed,
no benefit can be given to him.
5. We have heard learned counsel for the parties at length F
and perused the papers on record.
6. Before further discussion, we think it just and proper to
quote the relevant provisions of law applicable to this case.
Section 49 of the Maharashtra Regional and Town Planning G
Act, 1966 reads as under: -
"49. Obligation to acquire land on refusal of
permission or on grant of permission in certain
cases:- (1) Where-
H
382 SUPREME COURT REPORTS [2014] 11 S.C.R.
A (a) any land is designated by a plan as subject to
compulsory acquisition, or
(b) any land is allotted by a plan for the purpose of
any functions of a Government or local authority or statutory
B body, or is land designated in such plan as a site proposed
to be developed for the purposes of any functions of any
such Government, authority or body, or
(c) any land is indicated in any plan as land on which
a highway is proposed to be constructed or included, or
c
(d) any land for the development of which permission
is refused or is granted subject to conditions, and any
owner of land referred to in clauses (a), (b) (c) or (d) claims-
D (i) that the land has become incapable of
reasonably beneficial use in its existing state, or
(ii) (where planning permission is given subject to·
conditions) that the land cannot be rendered
capable of reasonably beneficial use by the
E
carrying out of the permitted development in
accordance with the conditions; or
(e) the owner of the land because of its designation
or allocation in any plan claims that he is unable to
F sell it except at a lower price than that at which he
might reasonably have been expected to sell if it
were not so designated or allocated,
the owner or person affected may serve on the State
G ·Government within such time ~nd in such manner, as is
prescribed by regulations, a notice (hereinafter referred to
as "the purchase notice") requiring the Appropriate
Authority to purchase the interest in the land in accordance
with the provisions of this Act.
H
., HASMUKHRAI V. MEHTA v. STATE OF
MAHARASHTRA [PRAFULLA C. PANT, J.]
(2) The purchase notice shall be accompanied by a copy
383
A
of any application made by the applicant to the Planning
Authority, and of any order or decision of that Authority
and of the State Government, if any, in respect of which
the notice is given.
B
(3) On receipt of a purchase notice, the State Government
shall forthwith call from the Planning Authority and the
Appropriate Authority such report or records or both, as
may be necessary, which those authorities shall forward
to the State Government as soon as possible but not later c
than thirty days from the date of their requisition.
(4) On receiving such records or reports, if the State
Government is satisfied that the conditions specified in
sub-section (1) aw fulfilled, and that order or decision for
permission w~'£ not duly made on the ground that the D
applicant did r.ct comply with any of the provisions of this
Act or rules or regulations, it may confirm the purchase
notice, or direct that planning permission be granted
without condition or subject to such conditions as will make
the land capable of reasonably beneficial use. In any other E
case, it may refuse to confirm the purchase notice, but in
that case, it shall give the applicant a reasonable
opportunity of being heard.
(5) If within a period of six months from th~ date on which F
a purchase notice is served the State Government does
not pass any final order thereon, the notice shall be
deemed to have been confirmed at the expiration of that
period.
G
(6) ••••••• (deleted by Mah. Act 6 of 1976) .
(7) If within one year from the date of confirmation of the
notice, the Appropriate Authority fails to make an
application to acquire the land in respect of which the
purchase notice has been confirmed as required under H
384 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A section 126, the reservation, designation, allotment,
indication or restriction on development of the lancl shall
be deemed to have lapsed; and thereupon, the land shall
be deemed to be released from the. reservation,
designation, or, as the case may be, allotment, indication
B or restriction and shall become available to the owner for
the purpose of development otherwise permissible in the
case of adjacent land, under the relevant plan."
7. Another relevant provision, i.e., Section 127 of the
C MRTP Act (as it existed prior to amendment in 2009) is
reproduced as under: -
"127. Lapsing of reservation:- If any land reserved,
allotted or designated for any purpose specified in any plan
under this Act is not acquired by agreement within ten
D years from the date on which a final 1"!1!lgional plan, or final
Development plan comes into force otif 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
E 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
F 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,
G permissible in the case of adjacent land under the relevant
plan."
8. Learned counsel for the appellant argued that the High
Court has erred in law in dismissing the writ petition in which
the appellant had fairly sought direction either to acquire the
H land or to release the same. It is further submitted that the land
• HASMUKHRAI V. MEHTA v. STATE OF
MAHARASHTRA [PRAFULLA C. PANT, J.]
385
cannot be held up for indefinite period, and the State is bound
either to acquire the land within the period provided under
A
Section 126 read with Section 127 of the MRTP Act, or to
release the same.
9. In reply to this, on behalf of the State, it is contended 8
that notice could have been served by the writ petitioner/
appellant only after el(piry of ten years of the Development Plan,
and the respondents were not required to take note of the
purchase notice given by the appellant within the period of ten
years. · c
10. Above reply, in our opinion does not answer as to why
steps have not been taken for acquisition for last twenty years.
11. We think it pertinent to mention here that APMC,
respondent No. 5, even after service of notice, has not cared D
to contest this appeal. Also, we think it relevant to mention that
till date no steps appear to have been taken for acquisition of
the land in question or to release the same. The land of
appellant, in our opinion, can not be held up, without any
authority of law, as neither the same is purchased till date by E
respondent authorities, nor acquired under any law, nor the
appellant is being allowed to use the land for last more than
twenty years.
12. In T. Vijaya/akshmi and others v. Town Planning F
Member and another', this Court, in paragraphs 13 and 15,
has observed as under: -
"13. Town Planning legislations are regulatory in nature.
The right to property of a person would include a right to
construct a building. Such a right, however, can be G
restricted by reason of a legislation. In terms of the
provisions of the Karnataka Town and Country Planning
Act, a comprehensive development plan was prepared. It
1. (2006) a sec so2. H
386 SUPREME COURT REPORTS [2014] 11 S.C. •
A indisputably is still in force. Whether the amendments to
the said comprehensive development plan as proposed
by the Authority would ultimately be accepted by the State
or not is uncertain. It is yet to apply its mind. Amendments
to a development plan must conform to the provisions of
B the Act. As noticed hereinbefore, the State has called for
objection from the citizens. Ecological balance no doubt
is required to be maintained and the courts while
interpreting a statute should bestow serious consideration
in this behalf, but ecological aspects, it is trite, are
c ordinarily a part of the town planning legislation. If in the
legislation itself or in the statute governing the field,
ecological aspects have not been taken into consideration
keeping in view the future need, the State and the Authority
must take the blame therefor. We must assume that these
aspects of the matter were taken into consideration by the
D
Authority and the State. But the rights of the parties cannot
be intermeddled with so long as an appropriate
amendment in the legislation is not brought into force.
Xxx )()()( )()()(
E
15. The law in this behalf is explicit. Right of a person to
construct residential houses in the residential area is a
valuable right. The said right can only be regulated in tenns
of a regulatory statute but unless there exists a clear
F provision the same cannot be taken away. It is also a trite
law that the building plans are required to be dealt with in
terms of the existing law. Determination of such a question
cannot be postponed far less taken away. Doctrine of
legitimate expectation in a case of this nature would have
G a role to play."
13. In Girnar Traders v. State of Maharashtra and
others', this Court, per majority, in paragraphs 32, 54 and 56
has held as under: -
H 2. c2001i 1 sec 555.
HASMUKHRAI V. MEHTA v. STATE OF 387
MAHARASHTRA [PRAFULLA C. PANT, J.]
"32. If no proceedings as provided under Section 127 are A
taken and as a result thereof the reservation of the land
lapses, the land shall be released from reservation,
allotment or designation and shall be available to the
owner for the purpose of development. The availability of
the land to the owner for the development would only be B
for the purpose which is' permissible in the case of adjacent
land under the relevant plan. Thus, even after the release,
the owner cannot utilise the land in whatever manner he
deems fit and proper, but ~ts utilisation has to be in
conformity with the relevant plan for which the adjacent c
lands are permitted to be utilised.
Xxx lOOC lOOC
54. When we conjointly read Sections 126 and 127 of the
MRTP Act, it is apparent that the legislative intent is to D
expeditiously acquire the land reserved under the Town
Planning Scheme and, therefore, various periods have
been prescribed for acquisition of the owner's property.
The intent and purpose of the provisions of Sections 126
and 127 has been well explained in Municipal Corpn. of E
Greater Bombay v. Dr. Hakimwadi Tenants Assn. 3 . If the
acquisition is left for time immemorial in the hands of the
authority concerned by simply making an application to the
State Government for acquiring such land under the LA Act,
1894, then the authority will simply move such an F
application and if no such notification is issued by the
State Government for one year of the publication of the
draft regional plan under Section 126(2) read with Section
6 of ~he LA Act, wait for the notification to be issued by
the State Government by exercising suo motu power under G
sub-section (4) of Section 126; and till then no declaration
could be made under Section 127 as regards lapsing of
reservation and contemplated declaration of land being
3. 1988 Supp sec 55. H
388 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A released and available for the landowner for his utilisation
as permitted under Section 127. Section 127 permitted
inaction on the part of the acquisition authorities for a
period of 10 years for dereservation of the land. Not only
that, it gives a further time for either to acquire the land or
B to take steps for acquisition <;>f the land within a period of
six months from the date of service of notice by the
landowner for dereservation. The steps towards
commencement of the acquisition in such a situation would
necessarily be the steps for acquisition and not a step
c which may not result into acquisition and merely for the
purpose of seeking time so that Section 127 does not
come into operation.
Xxx xxx xxx
D -56. The underlying principle envisaged in Section 127 of
the MRTP Act is either to utilise the land for the purpose it ·
is reserved in the plan in a given time or let the owner
utilise the land for the purpose it is permissible under the
town planning scheme. The step taken under the section
E within the time stipulated should be towards acquisition of
land. It is a step of acquisition of land and not step for
acquisition of land. It is trite that failure of authorities to take
steps which result in actual commencement of acquisition
of land cannot be permitted to defeat the purpose .and
F object of the scheme of acquisition under the·MRTP Act
by merely moving an application requesting the
Government to acquire the land, which Government may
or may not accept. Any step which may or may not
culminate in the step for acquisition cannot .be said to be
G a step towards acquisition."
14. In view of the principle of law laid down by this Court,
as above, we are of the view that in the present case since
neither steps have been taken by the authorities concerned for
H acquisition of the land, nor the land of the appellant is
• HASMUKHRAI V. MEHTA v. STATE OF
MAHARASHTRA [PRAFULLA C. PANT, J.]
purchased under purchase notice, nor he is allowed to use the
389
A
land for last more than twenty years, the land will have to be
released as the appellant cannot be deprived from utilizing his
property for an indefinite period.
15. Inaction on the part of APMC and bonafide act of B
appellant are apparent from the documents on record. In this
connection, we think it relevant that from the copy of letter dated
15.7.1991 (Annexure P/2) it is clear that Khopoli Municipal
Council granted permission for demarcation of the Survey No.
16, Hissa No. 3 and Survey No. 18, Hissa No. 4 of Village c
Sheel, and allowed that the plot be used by the appellant for
residential purpose, subject to other conditions mentioned in
the letter. Another document on record, is copy of letter dated
23.4.2001 (Annexure P/8) sent by the Chief Officer of Ktiopoli
Municipal Council to the Chairman, Agriculture Produce Market D
Committee, wherein at the end of the letter, it is expressly
mentioned that if action of acquisition of land not started within
time limit mentioned under MRTP Act, 1966, the Committee
(APMC) would be responsible for lapse of reservation ofthe
land. Also, Report dated 21.4.2003 (Annexure P/14) of Town E
Planning and Valuation Department addressed to the Principal
Secretary of the Urban Development Department of State of
Maharashtra shows that the Committee (APMC) and the State
Government were reminded of the fact regarding the
requirement of acquisition proceedings and the fact that it is
F
yet not known that any action for land acquisition was taken till
the report was submitted or not. Necessity of early action was
reiterated in the letter. However, it appears that no one bothered
on the issue to take steps for acquisition.
16. In the above circumstances, having considered G
submissions of the learned counsel for the parties and after
going through the documents on record and further considering
the law laid down by this Court, as discussed above, we find
that the High Court has erred in law in dismissing the writ
petition. • H
A
390 SUPREME COURT REPORTS [2014) 11 S.C.R.
17. Accordingly, we allow the appeal and set aside the
impugned order passed by the High Court. Since no steps
•
appear to have been taken till date for last more than twenty
years either for acquisition or for purchase of the land under
MRTP Act, 1966 by the authorities concernea, as such, the land
B in question stands released from reservation under Section 127
of the MRTP Act.
Devika Gujral Appeal allowed.
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