GODREJ & BOYCE MANUFACTURING.CO.LTD.versusSTATE OF MAHARASHTRA & ORS.

                     [2015] 1 S.C.R. 477

      GODREJ & BOYCE MANUFACTURING.CO.LTD.                           A
                               v.
            STATE OF MAHARASHTRA & ORS.
             (CIVIL APPEAL N0.1086 OF 2015)
                     JANUARY 21, 2015
                                                                     B
     [V. GOPALA GOWDA AND R. BANUMATHI, JJ.)

     Maharashtra Regional Town Planning Act, 1966 - s. 127
- Lapsing of reservation - Appellant's land reserved in the
Development Plan in the year 1991 for acquisition by the             C
Ministry of Railways for laying additional railway tracks -
Expiry of the period of 10 years specified uls. 127 - Failure
of respondent no ..1-State Government to take steps for
acquisition of thA said land - Issuance of notice by the
appellant to the Ministry to acquire the land if needed, else        o
issue clarification to that effect - Also lapse of the period of 6
months as prescribed u!s. 127 - However, land not de-
reserved - Notification issued by State Governm·ent proposing
the modification in the Development Plan deleting the
aforesaid reservation of land and adding reservation for             E
Development Plan Road - Writ petition by the appellant,
challenging the Notification - Dismissal of - On appeal, held:
Reservation of the land in favour of the Railway was deemed
to be released under the said provision of the MRTP Act -
State Government stated that there was no proposal for               F
acquisition of the land in the Railways in the near future - Land
reserved for the purpose uls. 127 is lapsed and the appellant
is entitled for developing the land as it likes - State
Government is not empowered to delete the reservation of the
land from Railway use and to modify the same for
Development Plan Road in the Development Plan after expiry           G
of 10 years and 6 months notice period was over since the
appellant acquired the valuable statutory right upon the land
and the reservation of the same for the proposed formation
of Railway track lapsed long back - Thus, the Notification is
                               477                                   H
    478       SUPREME COURT REPORTS           [2015] 1 S.C.R.


A   bad in law and is quashed - Order passed by the High Court
    is set aside.

          Allowing the appeal, the Court

      HELD: 1.1 The reservation of the land in favour of the
B Railway was deemed to be released under the said
  provision of the Maharashtra Regional Town Planning
  Act. Thus, the land reserved for the purpose under
  Section 127 of the MRTP Act, is lapsed and the appellant
  is entitled for developing the land as it likes. [Para 16]
C [485-F; 486-B]

       1.2 The provisions of Sections 127 and 37(1) of the
  MRTP Act make it clear that the State Government is not
  empowered to delete the reservation of the land involved
0 in this case from Railway use and to modify the same for
  Development Plan 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
E proposed formation of Railway track was lapsed long
  back. Further the respondent No. 2-Ministry of Railways
  vide its letter dated 1.11.2004 has stated that there is no
  proposal for acquisition of land for the purpose of which
  it was reserved. [Para 16] [487-A-C]

F      1.3 The High Court did not examine the impugned
  notification from the view point of Section 127 of the
  MRTP Act and interpretation of the said provision made
  in the case of *Girnar Traders case, therefore, giving
  liberty to the appellant by the High Court to file objections
G to the proposed notification is futile exercise on the part
  of the appellant for the reason that once the purpose of
  the land was reserved has not been utilized for that
  purpose and a valid statutory right is acquired by the land
  owner/interested person after expiry of 10 years from the
H date of reservation made in the Development Plan and 6
 GODREJ & BOYCE MANUFACTURING.CO.LTD. v.                479
         STATE OF MAHARASHTRA
months notice period is also expired, the State                A
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        B
the appellant. 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 Railways and adding to the
Development Plan for the formation of Development Plan         c
Road after lapse of 10 years and expiry of 6 months
notice served upon the State Government. [Para 16] [489-
C-F]
    1.4 The order passed by the High Court is set aside.
The impugned notification dated 5.8.2008 issued by the         D
State Government are vitiated in law and is also quashed
as the period of 10 years from the date of reservation -in
the Development Plan and 6 months notice served by the
appellant on the respondent No. 1 is also over, the
reservation of the land is lapsed. [Paras 17, 18] [489-G;      E
490-A-B]

   *Gimar Traders (3) v. State of Maharashtra 2011 (3)
SCR 1: (2011) 3 sec 1 - followed.
                                                               F
    Prakash R. Gupta v: Lonavala Municipal Council and
Ors. 2008 (16) SCR 1067: (2009) 1 SCC 514; Shrirampur
Municipal Council, Shrirampur v. Satyabhamabai Bhimaji
Dawkher & Ors. 2013 (2) SCR 664: (2013) 5 SCC 627; Gimar
Traders (2) v. State of Maharashtra 2007 (9) SCR 383: (2007)
7 SCC 555; Municipal Corpn. of Greater Bombay v.               G
Hakimwadi Tenants' Asson. 1988 SCR 21: (1988) Supp SCC
55 - referred to.

                    Case Law Reference:
       2008 (16) SCR 1067    Referred to         Para 13       H
    480       SUPREME COURT REPORTS              [2015] 1 S.C.R.


A         2013 (2) SCR 664        Referred to           Para 16

          2007 (9) SCR 383        Referred to           Para 16

          1988 SCR 21             Referred to           Para 16

          2011 (3) SCR 1          Followed              Para 16
B
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1086 of 2015.

         From The Judgment and Order dated 12.12.2011 of the
c   Divisional Bench of the High Court of Judicature at Bombay in
    Writ Petition No. 2274 of 2011.

        Shyam Divan, Siddharth Bhatnagar, S. Mohan, Rahul A.,
    T. Mahipal for the Appellants.

D       R. P. Bhatt, Varun Mohan, Aniruddha P. Mayee, S.
    Sukumaran, Anand Sukumar, Bhupesh Kumar Pathak, Meera
    Mathur for the Respondents.

          The Judgment of the Court was delivered by.
E         V.GOPALA GOWDA, J. 1. Leave granted.

        2. The appellant whose land bearing CTS Nos. 31 (pt), 7
  (pt), 70 to 78, 80(pt) and 81, measuring 2188 sq. mtrs. at
  Vikhroli were reserved in the Development Plan in the year 1991
F for acquisition by the Ministry of Railways for laying additional
  railway tracks between "Thane and Kurla", has questioned the
  correctness of the notification dated 5.8.2008 issued by the
  Urban Development Department of the respondent No. 1-State
  Government under Section 37(1) of the Maharashtra Regional
G Town Planning Act (for short "the MRTP Act") proposing the
  modification in the Development Plan deleting the reservation
  of land in question from Railway reservation and adding
  reservation for Development Plan Road, before the High Court
  of Bombay questioning the power of the State Government
H regarding the proposed modification in the Development Plan
 GODREJ & BOYCE MANUFACTURING.CO.LTD. v. 481
STATE OF MAHARASHTRA [V. GOPALA GOWDA, J.]
after the period of 10 years specified under Section 127 of the      A
MRTP Act, was expired and the State Government has failed
to take steps for acquisition of the land involved in these
proceedings reserved for the purpose of laying additional
railway tracks between "Thane and Kurla", which was not
interfered with by the High Court by recording its reasons in the    B
impugned order dated 12.12.2011, passed in the Writ Petition
No. 2274 of 2011, is under challenge in these proceedings,
urging various legal contentions.

    3. The brief facts of the case are as under:-
                                                                     c
     In the year 1991, appellant's land in question were
reserved under the Sanctioned Development Plan of Greater
Mumbai for acquisition of respondent No.2 herein - Union of
India, Ministry of Railways for laying down additional Railway
tracks between "Thane and Kurla". -                                  D

       No steps were taken by the concerned authorities despite
passing of 10 years period as contemplated under Section 127
of the MRTP Act to acquire the reserved land of the appellant.
The appellant has issued the purchase notice under the said          E
Section on 04.09.2002 to the respondent No.2 - Ministry of
Railways stating that if, the Ministry of Railways is in need of
the land in question, the same may be acquired by them, and
if the same is not required, a clarification to that effect may be
issued.
                                                                     F
    4. After issuance of the said notice, the period of 6 months
as prescribed under Section 127 of the MRTP Ad, was expired
on 3.3.2003, thus, the reservation of the land in question was
deemed to be released.
                                                                     G
    5. Having got no reply from respondent No. 2, the appellant
again wrote a letter dated 2.10.2004 to respondent No.1 for
de-reservation of the land if the same is not required by them.

     6. On 1.11.2004, the respondent No. 2 - Ministry of
                                                                     H
    482       SUPREME COURT REPORTS                 [2015) 1 S.C.R.


A   Railways informed the Urban Development Department of State
    that there was no proposal for acquisition of reserved land for
    railway development works in the Railways in the near future.

         7. The appellant, on 5.1.2005, wrote to the Urban
    Development Department of the State Government requesting
8
    for suitable steps in view of clarification letter dated 1.11.2004
    issued by respondent No. 2 and requested it for expediting the
    process of deleting the reservation of the land in question.

       8. The Urban Development Department of the State
C Government has issued the notification on 24.5.2006 under
  Section 37(1) of the MRTP Act, proposing the modification to
  the Development Plan by deleting "Railway reservation" and
  adding "Reservation for DP Road". The land which was
  reserved earlier in the Development Plan for railway line, the
D period of 10 years and 6 months after issuing notice was
  lapsed, now proposed to be reserved for Development Plan
  Road. The same was followed by another notification issued
  by the State Government under Section 37(1) of the MRTP Act
  dated 5.8.2008 for modification of the land deleting from the
E Railway reservation and reserving the same for Development
  Plan Road.

       9. Being aggrieved by the said notification dated 5.8.2008
  proposing the modification of reservation of the land in question
  from the Railway line to Development Plan Road, the appellant
F approached the High Court by filing Writ Petition No. 2274 of
  2011 challenging the correctness of the said notification by
  placing strong reliance upon Section 127 of the MRTP Act,
  contending that the proposed modification by the Urban
  Development Department is impermissible in law as the State
G Government has no power to do so.

       10. The High Court vide its order dated 12.12.2011
  dismissed the writ petition by holding that the action of the State
  Government is only proposed modification and therefore, the
H writ petition cannot be entertained at this stage. However, the
 GODREJ & BOYCE MANUFACTURING.CO.LTD. v.   483
STATE OF MAHARASHTRA [V. GOPALA GOWDA, J.]
High Court has given liberty to the appellant to raise objections A
before the Urban Development Department of the State
Government regarding the proposed modification. Further, it is
observed by the High Court in the impugned order that the
impugned notification was issued in the month of August, 2008,
whereas the appellant has filed the petition in the month of B
August, 2009. In the absence of explanation by the appellant
for filing a petition about one year after the issuance of
impugned notification, therefore, the writ petition was also
rejected on this ground. Hence, the civil appeal is filed by the
appellant urging various grounds.                                 c
     11. Mr. Shyam Divan, the learned senior counsel
appearing on behalf of the appellant placed strong reliance
upon the provision of Section 127 of the MRTP Act, in support
of his legal contention that the land of the appellant involved in
this case was reserved for the Development Plan by the State         D
Government for acquisition by the Ministry of Railways for laying
additional Railway tracks between 'T~ane and Kurla", which
period of 10 years was expired long back and therefore, the
proposed action to de-reserve and modify the same for the
abovesaid purpose is not permissible in law.                         E

     12. It was further contended by the learned senior counsel
that in view of the law laid down in Prakash R. Gupta v.
Lonavala Municipal Council and Ors1. the land shQuld• have
been acquired within 10 years from the date of sanctioned F
development plan. No proceeding for acquisition of the
reserved land was commenced by the State Government and
Railway department within the said period under Section 127
of the MRTP Act. The land involved in these proceedings
having not been acquired by the respondents within stipulated G
time of 10 years, the reservation of the land for the purpose of
railway under the provision of Section 127 of the MRTP Act has
lapsed long back and hence the same stands released from
reservation in favour of the appellant.
1.   (2009) 1 sec 514.                                               H
    484       SUPREME COURT REPORTS                 [2015] 1 S.C.R.


A      13. The learned senior counsel also contended that the
  High Court should have seen that once the right of the appellant
  under Section 127 of tlile MRTP Act, is accrued in favour of the
  appellant, any propos~d modification of the plan in exercise of
  power by the State Government under Section 37 of the MRTP
B Act, should not be allowed to render the right of the appellant
  under Section 127 of the MRTP Act as otiose.

        14. On the contrary, Mr. R.P. Bhatt, the learned. senior
  counsel oR· behalf of the respondents sought to justify the
  impugned notification contending that the Stat Government is
C empowered to modify the Development Plan by deleting the
  earlier purpose for which the land was reserved, and can be
  modified for Development Plan Road. The said action is only
  proposed one and therefore, the appellant cannot have any
  grievance at this stage and can raise objections to the
D impugned notification before the State Government, the same
  will be examined it and take appropriate decision in the matter.
  Therefore, he submits that the impugned order is not vitiated
  either on account of erroneous reasoning or error in law and
  the same need not be interfered with by this Court in exercise
E of its appellate jurisdiction in this appeal.

       15. Having heard the learned senior counsel on behalf of
  both the parties and with reference to the abovesaid rival factual
  and legal contentions, we have carefully examined the same
F keeping in view the undisputed facts involved in this case. It is
  an undisputed fact that the respondent No. 1 has reserved the
  land in question for the Development Plan under the provisions
  of Section 127 of the MRTP Act for the acquisition of the land
  in favour of Ministry of Railways for laying additional railway
G track between "Thane and Kurla". It would be apposite to extract
  Section 127 of the MRTP Act for better appreciation of the claim
  of the parties, which deals with lapsing of reservation:-

          "127. Lapsing of reservations-If any land reserved,
          allotted or designated for any purpose specified in any plan
H         under this Act is not acquired by agreement within ten
 GODREJ & BOYCE MANUFACTURING.CO.LTD. v.   485
STATE OF MAHARASHTRA [V. GOPALA GOWDA, J.]
    years from the date on which a final Regional plan, or final     A
    D~velopment plan comes into force or if proceedings for
    the acquisition of such land under this Act or under the Land
    Acquisition Act, 1894, are not commenced within such
    period, the owner or any person interested in the land may
    serve notice on the Planning Authority, Development              B
    Authority or as the case may be, Appropr~te Authority to
    that effect; and if within six months from,.tt1e 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         c
    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
    th~ case of adjacent land under the relevant plan."              D

     16. It is also an undisputed fact that after 10 years, notice
dated 4.9.2002 served by the appellant under Section 127 of
the MRTP Act upon the respondent No.1 stating that if, the
reserved land was needed for the notified purpose, Railway
department may acquire the same by adopting acquisition              E
proceedings, but if the same is not acquired, the clarification
to that effect be issued. Thereafter, on 3.3.2003 the period of
6 months as prescribed under the provision of Section 127 of
the MRTP Act, after issuance of the above notice by the
appellant and served on the respondent No.1, was also lapsed         F
long back. Therefore, the reservation of the land in favour of the
Railway was deemed to be released under the above said
provision of the MRTP Act. The respondent No. 2-Ministry of
Railways informed the Urban Development Department of the
State Government on 1.11.2004 stating that there was no              G
proposal for acquisition of the land in the Railways in the near
future, is evident from the undisputed fact of the correspondence
made between the Ministry of Railways and the Urban
Development Department of the State Government, which
would clearly go to show that the land reserved even after 10        H
    486        SUPREME COURT REPORTS                   [2015] 1 S.C.R.


A years and on expiry of service of notice of 6 months there was
  no intention on the part of the State Government to acquire the
  reserved land for the purpose reserved in favour of the Railways
  departmenJ to form the Railway tracks between "Thane and
  Kurla". In that view of the matter, the land reserved for the
B purpose under Section 127 of the MRTP Act, is lapsed and the
  appellant is entitled for developing the land as it likes. The State
  Government instead of clarifying to the notice issued by the
  appellant, has proceeded further to initiate proceedings under
  Section 37 of the MRTP Act, proposing the modification in the
c Development Plan by deleting Railway reservation and adding
  reservation for Development Plan Road. Section 37(1) of the
  MRTP Act, which deals with modification of Final Development
  Plan reads thus:-

          "37.Modification of final Development Plan - (1) Where
D         a modification of any part of or any proposal made in, a
          final Development Plan is of such a nature that it will not
          change the character of such Development Plan, the
          Planning Authority may, or when so directed by the State
          Government shall, within sixty days from the date of such
E         direction, publish a notice in the Official Gazette .and in such
          other manner as may be determined by it inviting
          objections and suggestions from any person with respect
          to the proposed modification not later than one month from
          the date of such notice; and shall also serve notice on all
F         persons affected by the proposed modification and after
          giving a hearing to any such persons, submit the proposed
          modification (with amendments, if any), to the State
          Government for sanction.

          1A) If the Planning Authority fails to issue the notice as
G
          directed by the State Government, the State Government,
          shall issue the notice and thereupon, the provisions of sub-
          section (1) shall apply as they apply in relation to a notice
          to be published by a Planning Authority."

H
 GODREJ & BOYCE MANUFACTURING.CO.LTD. v.   487
STATE OF MAHARASHTRA [V. GOPALA GOWDA, J.]
     By a careful reading of the provisions of Sections 127 and    A
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 Road in the Development Plan after expiry of 10 years and     B
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 was
lapsed long back. Further the respondent No. 2 vide its letter
dated 1.11.2004 has stated that there is no proposal for           c
acquisition of land for the purpose of which it was reserved.

      Section 127'0f the MRTP Act, which fell for consideration
before the three Judge Bench of this Court in the case of
Shrirampur Municipal Council, Shrirampur v. Satyabhamabai
Bhimaji Dawkher & Ors 2 . wherein the contention of the            D
appellant that the majority judgment in the case of Gimar
Traders (2) v. State of Maharashtra 3 need to be considered
by larger Bench as the same is contrary to Section 127 and
Municipal Corpn. Of Greater Bortfbay v. Hakimwadi Tenants'
Asson 4 . case, was rejected. The Court opined that the same       E
is not contrary to Section 127 of the MRTP Act and further held
that there is no conflict between the judgments of the two-Judge
Bench in Hakimwadi Tenants' Asson. (supra) and the majority
judgment in Gimar Traders (2) (supra) case. Further, the three
Judge Bench judgment in Shrirampur Municipal Council,              F
Shrirampur (supra) at paras 45 and 46 supported the
observation of Constitution Bench in Gimar Traders (3) v. State
of Maharashtra 5 case relating to Section 127 of the MRTP Act,
which read thus:-
                                                                   G
      "45. In our view, the observations contained in para 133
2.   (2013) 5 sec a21.
3.   (2001) 1 sec 555.
4.   (1988) supp sec 55.
5.   (2011 > 3 sec 1.                                              H
    488       SUPREME COURT REPORTS                [2015] 1 S.C.R.


A         of Gimar Traders (3) unequivocally support the majority
          judgment in Gimar Traders (2).

           46. As a sequel to the above discussion, we hold that the
           majority judgment in Gimar Traders (2) lays down correct
          ,law 'and does not require reconsideration by a larger
B
           Bench ... "

         From the above, it is clear that the majority view in Gimar
 ·,,Traders (2) (supra) is held to be good law. Therefore, the case
    of Gimar Traders (2) (supra) is binding precedent under Article
C 141 of the Constitution of India upon the respondent No.1. The
    relevant paragraph 133 from Gimar Traders (3) is extracted
    hereunder:-

        "133. However, in terms of Section 127 of the MRTP Act,
D       if any land reserved, allotted or designated for any purpose
        specified is not acquired by agreement within 10 years
        from the date on which final regional plan or final
        development plan comes into force or if a declaration
       -under sub-section (2) or (4) of Section 126 of the MRTP
        Act is not published in the Official Gazette within such
E
        period, the owner or any person interested in the land may
        serve notice upon such authority to that effect and if within
        12 months from the date of service of such notice, the land
        is not acquired or no steps, as aforesaid, are commenced
        for its acquisition, the reservation, allotment or designation
F       shall be deemed to have lapsed and the land would
        become available to the owner for the purposes of
        development. The defaults, their consequences and even
        exceptions thereto have been specifically stated in the
        State Act. For a period of 11 years, the land would remain
G       under reservation or designation, as the case may be, in
        terms of Section 127 of the MRTP Act (10 years+ notice
        period)."

      In view of the above said statement of law declared by this
H Court in the cases referred to supra, after adverting to the
  GODREJ & BOYCE MANUFACTURING.CO.LTD. v. 489
 STATE OF MAHARASHTRA [V. GOPALA GOWDA, J.]

  judgment of majority view in Gimar Traders (2) case (supra) is        A
  accepted in Shrirampur Municipal Council, Shrirampur
  (supra), wherein it is held that the Gimar Traders (2)(supra)
  case is not conflicting with the Hakimwadi Tenants' Asson. case
  (supra), the statement of law laid down in the above referred
  cases are aptly applicable to the fact situation. Therefore, we       B
  have to hold that the impugned notification is bad in law and
  liable to quashed. The High Court has not examined the
  impugned notification from the view point of Section 127 of the
  MRTP Act and interpretation of the above said provision made
. in the case of Gimar Traders (2) (supra), therefore, giving liberty   c
  to the appellant by the High Court to file objections to the
  proposed notification is futile exercise on the part of the
  appellant for the reason that the State Government, once the
  purpose the land was reserved has not been utilized for that
  purpose and a valid statutory right is acquired by the land           D
  owner/interested person after expiry of 10 years from the date
  of reservation made in the Development Plan and 6 months
   notice period is 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
                                                                        E
  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 Railways and adding to the Development Plan for           F
   the formation of Development Plan Road after lapse of 10 years
   and expiry of 6 months notice served upon the State
   Government.

     17. In view of above, the order passed by the High Court           G
 as well as the impugned notification issued by the State
 Government are vitiated in law and liable to be set aside and
 quashed and we order accordingly.

      18. The appeal is allowed. The impugned order is set              H
    490          SUPREME COURT REPORTS           (2015] 1 S.C.R.


A   aside and consequently Rule issued. The impugned notification
    dated 5.8.2008 is also quashed as the period of 10 years from
    the date of reservation in the Development Plan and 6 months
    notice served by the appellant on the respondent No. 1 is also
    over, the reservation of the land is lapsed. No costs.
B
    Nidhi Jain                                       Appeal allowed•