Supreme Court of India
THE KOLHAPUR MUNICIPAL CORPORATION & ORS.versusVASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS.
- Citation
- 2022 INSC 179
- Decided
- 14 February 2022
- Disposal
- Disposed off
- Bench
- M R SHAH
Holding
The reservation of the land had lapsed under Section 127 MRTP Act; therefore, the High Court could not issue mandamus directing acquisition or compensation, and the order directing a declaration under Section 19 of the 2013 Act was set aside.
Summary
The Kolhapur Municipal Corporation (KMC) sought to acquire land reserved in the 1999 Development Plan for public purposes, but the land remained unacquired for over ten years. The landowners served a purchase notice under Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act), and the corporation neither issued a declaration under the Land Acquisition Act, 1894 nor under the 2013 Right to Fair Compensation Act within the statutory period. The High Court erroneously directed KMC to issue a declaration under Section 19 of the 2013 Act and to pay compensation, despite the land being unsuitable (flood‑affected) and the reservation having lapsed. The Supreme Court held that a mere resolution or budgetary provision does not constitute the "steps" required under Section 127; consequently, the reservation lapsed, and no mandamus could be issued to compel acquisition or compensation. The Court also rejected the landowners' request for Transferable Development Rights (TDR) as they had expressly declined it, applying the principle of approbate and reprobate. The High Court's order was quashed and the writ petition dismissed.
Issues considered
- The effect of Section 127 MRTP Act when a reservation is not acquired within ten years and whether a corporation's resolution and budgetary provision constitute "steps" under the Act.
- Whether a High Court can issue a writ of mandamus directing acquisition and payment of compensation under Section 19 of the 2013 Act after the reservation has legally lapsed.
- Whether the corporation can be compelled to acquire land that is unsuitable and flood‑affected for the public purpose for which it was reserved.
- Whether landowners who have declined TDR can later be forced to accept it, and the applicability of the principle of approbate and reprobate.
- Interpretation of "steps" required under Section 127 in light of the Land Acquisition Act, 1894 and the 2013 Act.
Legislation cited
- Land Acquisition Act, 1894s. 11, s. 4, s. 6
- Maharashtra Regional and Town Planning Act, 1966s. 125, s. 126, s. 127, s. 31
- Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013s. 19
Subjects
land acquisitionreservation lapseMRTP ActRight to Fair Compensation ActTransferable Development Rightsmandamussuitability of landpublic purposeapprobate and reprobate
Judgment
358 [2022]REPORTS
SUPREME COURT 16 S.C.R. 358 [2022] 16 S.C.R.
A THE KOLHAPUR MUNICIPAL CORPORATION & ORS.
v.
VASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS.
(Civil Appeal No. 510 of 2022)
B FEBRUARY 14, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013 – s.19 –
Maharashtra Regional and Town Planning Act, 1966 – ss.126, 127
C
– Land Acquisition Act, 1894 – ss.4, 6, 11 – Different portions of
the land reserved in the sanctioned development plan for various
public purposes – Land owned by the writ petitioners-respondent
not acquired and/or used for which the same was reserved under
the plan – Notice served by the land owners u/s. 127 of the MRTP
D Act – Submission of proposal by the Municipal Corporation-
appellant to the State Government for compulsory acquisition of
the said property – Direction by the District Collector to the appellant
to deposit the compensation amount before the acquisition
procedure u/s. 4, 6 and 11 of the 1894 Act – Subsequently, on
enactment of the Act of 2013, the Special Land Acquisition Officer
E
directed the appellant to deposit the compensation amount, however
since the appellant was not in a financial position to pay such a
huge amount, it requested the landowners to accept the Transferable
Development Rights-TDR in lieu of compensation amount and the
same was accepted – Meanwhile, the Land Acquisition Officer
F informed the appellant to deposit part of the total amount of
compensation and that the land under reservation fell within the
flood affected area and thus, the compensation amount was reduced
– As per the appellant, before the TDR proposal could be considered,
development work was to be carried out upon the said reserved
land for making it suitable for the public purpose – However, the
G
landowners did not agree to avail of the TDR and filed writ petition
seeking directions to the appellants to publish a final notification
u/s. 126(2) and (4) of the MRTP Act r/w s.19 of the Act of 2013;
and deposit the compensation amount – High Court directed the
Special Land Acquisition Officer to communicate to the Municipal
H Corporation the amount which is required to be deposited by them
358
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 359
PATIL (DEAD) THROUGH L.R.S
as a condition precedent for issuing a declaration u/s. 19 of the A
said Act of 2013 – Appellants then filed writ petition seeking direction
to the respondents to accept the TDR in lieu of compensation –
High Court rejected their claim as respondents were not consenting
to accept the TDR – On appeal, held : Land had not been acquired
for ten years despite the writ petitioners having issued a purchase
B
notice dated 02.01.2012 u/s. 127 of the MRTP Act for acquisition
of the reserved area – Mere Resolution being passed by the General
Body of the Corporation to acquire the land and sending a letter to
the Collector to acquire the land, without any further steps being
taken under the Land Acquisition Act, namely no declaration u/s. 6
, would result in the reservation as deemed to have lapsed – Mere C
passing of a Resolution and/or making a budgetary provision for
payment of the compensation in the budget cannot be said to be
taking steps as contemplated u/s. 127 of the MRTP Act – Thus,
once by operation of law, the reservation is deemed to have lapsed,
it is lapsed for all purposes and for all times to come – No further
D
writ of mandamus could have been issued by the High Court to
acquire the land and thereafter pay the compensation to the
landowners – Furthermore, no Corporation/Planning Authority can
be compelled to acquire the land which according to the
Corporation/Planning Authority is not suitable and/or usable for
the purposes for which it is reserved – Any other interpretation E
would lead to colourable and fraudulent exercise of power and
cause financial burden on the public exchequer – Moreover, in case
of grant of TDR, before the High Court, the landowners specifically
filed the affidavits stating that they do not wish to avail of TDR and
their only prayer before the High Court was to acquire the land
F
and to pay them the compensation – Thus, now it is not open for the
landowners to pray for the TDR in respect of the land in question –
Principle of approbate and reprobate equally applicable to the
landowners also – Thus, the land once found to be usable and/or
suitable for the purposes for which it has been reserved, the
Corporation cannot still be compelled and directed to acquire the G
land and grant TDR in lieu of amount of compensation – Order
passed by the High Court directing the appellant to issue a
declaration u/s. 19 and consequently to acquire the land and to
pay the compensation to the landowners quashed and set aside.
H
360 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Allowing Civil Appeal No. 510 of 2022 and partly allowing
Civil Appeal No. 511 of 2022, the Court
HELD: 1. 1 At the time of preparing the Development Plan
and keeping a particular land reserved for a particular public
purpose, an important duty is cast upon the Planning Authority
B to first satisfy that the land reserved which thereafter has to be
acquired on payment of compensation is very much suitable and
usable for that public purpose. In the instant case, how the area,
which is a flood affected area and through which a rivulet named
‘Jayanti Nala’ passes can be kept under reservation for a particular
public purpose and can be used for public purposes like parking
C and/or for widening of the road etc.? Therefore, while preparing
the Development Plan and reserving and/or designating a
particular land for a particular public purpose, great care and
caution is to be exercised by the Planning Authority. As per Section
125 of the Act, any land required, reserved or designated in a
D Development plan or Town Planning Scheme for a public purpose
or purposes including plans for any area of comprehensive
development or for any new town shall be deemed to be land
needed for a public purpose within the meaning of the Land
Acquisition Act, 1894. Hence, all the parameters concerning the
suitability of the land for the particular public purpose for which
E the land is to be reserved and acquired for utilization must be
borne in mind as a factor of paramount importance. [Para 9.5][385-
A-D]
1.2. Section 126 of the MRTP Act provides that where after
the publication of a draft Regional plan, a Development or any
F other plan or town planning scheme, any land is required or
reserved for any of the public purposes specified in any plan or
scheme under MRTP Act at any time, the Planning Authority,
Development Authority, or as the case may be, any Appropriate
Authority has to acquire the land as provided under Sections
G 126(1)(a), (b) or (c) by making an application to the State
Government for acquiring such land under the Land Acquisition
Act, 1894 (now it would be the Act of 2013). On receipt of such
application by the Planning Authority/Development Authority to
the State Government for acquiring such land under the Land
Acquisition Act, 1894, the procedure as contemplated and
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 361
PATIL (DEAD) THROUGH L.R.S
required under Sections 126(2) to 126(4) shall have to be followed. A
Section 127 of the MRTP Act further provides that if any land
reserved, allotted or designated for any purpose specified in any
plan under MRTP Act is not acquired by agreement or otherwise
within ten years from the date on which a final Regional Plan, or
final Development Plan comes into force or if a declaration under
B
sub–section (2) or (4) of Section 126 is not published in the Official
Gazette within such period (ten years), the owner or any person
interested in the land may serve a notice to the Planning Authority,
the Development Authority or, as the case may be, the Appropriate
Authority to purchase the land reserved. If within twelve months
from the date of the service of such notice, the land is not acquired C
or no steps are commenced for its acquisition, the reservation,
allotment or designation shall be deemed to have lapsed, and
thereupon, the land shall be deemed to be released from such
reservation, allotment or designation and shall become available
to the owner for the purpose of development as otherwise,
D
permissible in the case of adjacent land under the relevant plan.
Sub–section (2) of Section 127 further provides that on lapsing of
the reservation, allocation or designation of any land under sub–
section (1), the Government shall notify the same, by an order
published in the Official Gazette. [Para 10.1][388-E-H; 389-A-C]
1.3. If the land reserved under the draft Development Plan/ E
Development Plan is not acquired within a period of ten years
form the date of final Development Plan and thereafter after expiry
of ten years, the landowners serve a purchase notice and
thereafter within a period of one year, no steps are taken to acquire
the land, the reservation/allocation is deemed to have lapsed and F
the land stand released from such reservation/allocation.
Declaration under Section 6 of the Act of 1894 can be said to be
taking steps as contemplated under Section 127 of the MRTP
Act. After the enactment of the Act of 2013, the declaration under
Section 6 of the Act of 1894 is now to be read and/or is substituted
by declaration under Section 19 of the Act of 2013. Therefore, if G
within a period of one year from the date of receipt of purchase
notice as per Section 127, a declaration under Section 19 of the
Act, 2013 is not issued and the land is not acquired, the
reservation/allocation under the Development Plan is deemed
H
362 SUPREME COURT REPORTS [2022] 16 S.C.R.
A to have lapsed and the land is released from such reservation/
allocation. [Para 11][393-C-F]
1.4. The first Development Plan under which the original
writ petitioners’ land was reserved for public purposes was in
the year 1976. Thereafter the second amended Development Plan
B was published on 18.12.1999 and came to be implemented from
01.02.2000, under which also the land of the original writ
petitioners was reserved for public purposes. But the same had
not been acquired for ten years despite the respondents – original
writ petitioners having issued a purchase notice dated 02.01.2012
under Section 127 of the MRTP Act for acquisition of the reserved
C area. A mere Resolution being passed by the General Body of
the Corporation to acquire the land and sending a letter to the
Collector to acquire the land, without any further steps being
taken under the Land Acquisition Act, namely no declaration
under section 6 thereof being issued within a period of one year
D from the receipt of the said purchase notice, would result in the
reservation as deemed to have lapsed. [Para 11.1][393-F-H; 394-
A-B]
1.5. In the instant case, the High Court issued a writ of
Mandamus directing the Corporation to issue a declaration under
E Section 19 of the Act of 2013 mainly on the ground that the General
Body of the Corporation had passed a Resolution dated
18.02.2012 resolving that the land in question is required to be
acquired and the same is needed for the purpose for which it has
been reserved. However, mere passing of a Resolution and/or
making a budgetary provision for payment of the compensation
F in the budget cannot be said to be taking steps as contemplated
under section 127 of the MRTP Act. Therefore, once the
reservation of land under the Development Plan is deemed to
have lapsed by operation of law and it is released from reservation,
no writ of Mandamus could have been issued by the High Court
G directing the Corporation to still acquire the land and to issue a
declaration under Section 19 of the Act of 2013 (as in the
meantime, the Land Acquisition Act, 1894 has been repealed and
Act of 2013 has been enacted). [Para 12][394-B-E]
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 363
PATIL (DEAD) THROUGH L.R.S
1.6. Notification in the Official Gazette is only a A
consequential act and it has nothing to do with the actual lapsing
of reservation by operation of law as the reservation is deemed
to have lapsed under Section 127(1). Thereafter issuance of the
notification of lapse of the reservation of land is only a procedural
act and non-issuance of such a notification in the Official Gazette
B
with respect to lapse of the reservation, allocation or designation
would not affect the lapse of the reservation under Section 127(1)
of the MRTP Act. [Para 13][394-F-G]
1.7. Once the reservation with respect to the land in
question was deemed to have lapsed, no further writ of mandamus
could have been issued by the High Court to acquire the land C
and thereafter pay the compensation to the landowners, as on
the lapse of the reservation, the land in question is free from
reservation and the landowners can use it as if there is no
reservation, however, subject to provisions of the MRTP Act.
[Para 14][394-G-H; 395-A] D
1.8. In the facts and circumstances of the case, the High
Court had erred and/or the High Court was not justified in
directing the Municipal Corporation to acquire the land in question
and to issue a declaration under Section 19 of the Act of 2013 and
to pay compensation under the Act of 2013. It is to be noted that E
right from the very beginning it was stated in the counter before
the High Court that the land in question was not suitable and/or
usable for the purposes for which it has been reserved. It was
specifically pointed out that the subject land is flood affected
through which a rivulet named ‘Jayanti Nala’ passes, making it
unsuitable for the public purposes for which it was reserved. It F
was also specifically pointed out that unless and until the
substantial development is carried out, the land in question is
not usable at all. It was also specifically pointed out that the
reserved area is coming within High Flood Line and every year
for a period of fifteen days to one month, the said area gets flooded G
during rainy season. In that view of the matter, the High Court
ought not to have directed the Corporation to still acquire the
land and pay the compensation to the original landowners though
the land in question is unsuitable and unusable for the public
H
364 SUPREME COURT REPORTS [2022] 16 S.C.R.
A purposes for which it has been reserved. As such at the time
when the planning was made and the land in question was put
under reservation for public purposes, a duty was cast upon the
Planning Officer to consider whether the land, which will have to
be acquired and for which the compensation is to be paid is really
suitable and/or usable for the public purposes for which it is
B
reserved. Otherwise, every landowner will see to it that though
his land is not suitable and/or not very valuable, is put under
reservation and the same is acquired by the Corporation and/or
the Planning Authority and thereafter he is paid the compensation.
No Corporation and/or the Planning Authority and/or the
C Appropriate Authority can be compelled to acquire the land which
according to the Corporation/Planning Authority is not suitable
and/or usable for the purposes for which it is reserved. Any other
interpretation would lead to colourable and fraudulent exercise
of power and cause financial burden on the public exchequer.
[Para 15][395-A-G]
D
1.9. It is required to be noted that in fact there was a valid
reason for the Corporation not to go ahead with the acquisition.
Under the Act of 2013, the Corporation was required to pay a
huge sum of Rs. 77,65,12,000/- by way of compensation under
the Act of 2013. According to the Corporation, when the entire
E annual budget for acquisition was Rs.21 crores, it was beyond
their financial position and/or budgetary provision to pay such a
huge compensation, that too, for the land which is not suitable
and/or useable for the purposes for which it has been reserved.
It may be true that under the MRTP Act, in the Development
F Plan, the Planning Authority and/or the Appropriate Authority
has to make the provisions for the public purposes mentioned in
Clauses (b) and (c) of Section 22 and sub-section (5) of Section
31 of the MRTP Act and that is also desired for an appropriate
planning of a city and therefore the financial constraint cannot be
the sole consideration to acquire the land for the purposes for
G which it has been reserved namely public purposes. However, at
the same time, when such a huge amount of compensation is to
be paid and there would be a heavy financial burden, which as
such is beyond the financial capacity of the Corporation, such a
financial constraint can be said to be one of the relevant
H considerations, though not the sole consideration before
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 365
PATIL (DEAD) THROUGH L.R.S
embarking upon reservation of a particular extent of land for A
development. Even otherwise, in the facts and circumstances of
this case, when land is found to be unsuitable and unusable for
the purposes for which it has been reserved, Corporation cannot
be compelled to pay a huge compensation for such a useless and
unsuitable land. [Para 16][395-G-H; 396-A-E]
B
1.10. On the principle of approbate and reprobate, it is
contended by the landowners that the Corporation cannot now
be permitted to deny TDR to the original landowners, the Court
observes that first of all, it is required to be noted that the said
principle of approbate and reprobate would be equally appliable
to the landowners also. Before the High Court, the original C
landowners specifically filed the affidavits that they do not wish
to avail of TDR and their only prayer before the High Court was
to acquire the land and to pay them the compensation. Therefore,
now it is not open for the respondents – original landowners to
pray for the TDR in respect of the land in question. [Para 17][396- D
F-H]
1.11. Even otherwise, a landowner is entitled to TDR in
lieu of compensation with respect to the land reserved provided
the land to be acquired is suitable and/or usable by the
Corporation. Once it is found that the land is not usable and/or E
suitable for the purposes for which it has been reserved, the
Corporation cannot still be compelled and directed to acquire
the land and grant TDR in lieu of amount of compensation. Clause
11.2.3 of the Unified Development Control and Promotion
Regulations, 2020 Regulations states that it shall not be
permissible to grant TDR for existing nallah, river, natural stream, F
natural pond, tank, water bodies etc. and reservations which are
not developable under the provisions of UDCPR, 2020.
Therefore, the prayer of the respondents to grant them TDR is
rejected. [Para 17.1, 17.2][397-A-C, F-G]
1.12. The impugned judgment and order passed by the High G
Court directing the appellant Corporation to issue a declaration
under Section 19 of the Act of 2013 and consequently to acquire
the land in question and to pay the compensation to the
respondents-original landowners as per the provisions of Act of
2013 is quashed and set aside. Consequently, the original Writ H
366 SUPREME COURT REPORTS [2022] 16 S.C.R.
A Petition before the High Court filed on behalf of the original
landowners is dismissed. [Para 18]12[397-G-H; 398-A]
1.13. As regards, Civil Appeal No. 511 of 2022 the
reservation of the land for the public purposes for which it was
reserved is deemed to have lapsed. [Para 19][398-B-C]
B Girnar Traders v. State of Maharashtra and Ors. (2007)
7 SCC 555 : [2007] 9 SCR 383; Shrirampur Municipal
Council, Shrirampur v. Satyabhamabai Bhimaji
Dawkher and Ors. (2013) 5 SCC 627 : [2013] 2 SCR
664; Chhabildas v. State of Maharashtra and Ors.
C (2018) 2 SCC 784 : [2018] 1 SCR 411 – relied on.
Mumbai International Airport Private Limited v. Golden
Chariot Airport & Anr. (2010) 10 SCC 422 : [2010] 12
SCR 326; Joint Action Committee of Air Line Pilots’
Association of India (ALPAI) and Ors. v. Director
D General of Civil Aviation and Ors. (2011) 5 SCC 435 :
[2011] 5 SCR 1019; Karam Kapahi and Ors. v. Lal
Chand Public Charitable Trust and Anr. (2010) 4 SCC
753 : [2010] 4 SCR 422; Municipal Corporation of
Greater Mumbai and Ors. v. Hiraman Sitaram
Deorukhar and Ors. (2019) 14 SCC 411 – referred to.
E
Case Law Reference
[2010] 12 SCR 326 referred to Para 4.4
[2011] 5 SCR 1019 referred to Para 4.4
[2010] 4 SCR 422 referred to Para 4.4
F
[2007] 9 SCR 383 relied on Para 10.6, 11
[2013] 2 SCR 664 relied on Para 10.6, 11
[2018] 1 SCR 411 relied on Para 10.6, 11
G CIVIL APPELLATE JURISDICTION: Civil Appeal No. 510 of
2022.
From the Judgment and Order dated 13.08.2018 of the High Court
of Judicature at Bombay in Writ Petition No. 5310 of 2018.
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 367
PATIL (DEAD) THROUGH L.R.S
With A
Civil Appeal No. 511 of 2022.
Ms. Aparajita Singh, Sr. Adv., Shivaji M. Jadhav, Anish R. Shah,
Brij Kishor Sah, Ms. Qurratulain, Aditya S. Jadhav, Advs. for the
Appellants.
B
Chander Uday Singh, Sr. Adv., Abhay Anil Anturkar, Amjid
Maqbool, Tanaji Mhatugade, Vaibhav Kulkarni, Harshvardhan
Suryavanshi, Ms. Bhavya Pande, Dhruv Tank, Dr. R. R. Deshpande,
M/s Dr. R. R. Deshpande and Associates, Ms. Yugandhara Pawar, Rahul
Chitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal,
Amit, Maneesh Saxena, Vipin Kumar Saxena, Ms. Kajal Rani, Advs. C
for the Respondents.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment D
and order dated 13.08.2018 passed by the High Court of Judicature at
Bombay in Writ Petition No.5310 of 2018 by which the Division Bench
of the High Court has allowed the said writ petition preferred by the
private respondents herein – original writ petitioners and has issued the
writ of Mandamus directing the appellants – Kolhapur Municipal
E
Corporation and others to acquire the land in question and to issue a
declaration under Section 19 of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act,
2013 (hereinafter referred to as “Act of 2013”), Kolhapur Municipal
Corporation and others have preferred the present Civil Appeal No. 510
of 2022. F
1.1 In the aforesaid Writ Petition No.5310 of 2018 after the
judgment was delivered on 13.08.2018, the Kolhapur Municipal
Corporation preferred one further Civil Application No.2461 of 2018 in
Writ Petition No. 5310 of 2018 for appropriate order directing the original
writ petitioners to accept the TDR in lieu of monetary compensation, G
which has been rejected by the High Court by order dated 10.12.2018.
The same is the subject matter of the present Civil Appeal No.511 of
2022 preferred by the Kolhapur Municipal Corporation.
2. The facts leading to the present appeal in a nutshell are as
under:- H
368 SUPREME COURT REPORTS [2022] 16 S.C.R.
A 2.1 The dispute is with respect to the land bearing R. S. No. 138,
ad-measuring 3 Hectors and 65 Ares, situated at E ward, Near New
Palace, Kolhapur owned by the original writ petitioners. The development
plan for the City of Kolhapur was sanctioned on 18.12.1999. Different
portions of the land in question were reserved in the sanctioned
development plan for various public purposes namely, parking, garden,
B
extension of sewage treatment plant etc. That as the land in question
was not acquired and/or used for the public purposes for which the
same was reserved under the sanctioned development plan, the original
writ petitioners – landowners served a notice under Section 127 of the
Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred
C to as the “MRTP Act”) on 02.01.2012.
2.2 By Resolution dated 18.02.2012, the General Body of the
Municipal Corporation resolved to acquire the said property and
accordingly on 17.04.2012, a proposal was submitted by the Municipal
Corporation to the State Government for compulsory acquisition of the
D subject property. The District Collector passed an order dated 07/
09.07.2012 directing that the proposal for acquisition be transferred to
the Special Land Acquisition Officer (11), Kolhapur for necessary action.
By the said order, the Corporation was directed to deposit 25% of the
amount before publication of the notification under Section 4 of the Land
Acquisition Act, 1894 (hereinafter referred to as “Act of 1894”), 25%
E of estimated compensation amount before the publication of a declaration
under Section 6 of the Act of 1894 and remaining 50% of the estimated
compensation amount before the declaration of award under Section 11
of the Act of 1894.
2.3 That on enactment of the Act of 2013, the Land Acquisition
F Act, 1894 came to be repealed. Therefore, the land in question was
subjected to the provisions of the Act of 2013. The Special Land
Acquisition Officer directed the Corporation to deposit the amount of
Rs.77,65,12,000/- towards compensation vide its letter dated 06.10.2015
in order to issue necessary orders as per Section 19 of the Act of 2013.
G It appears that the Corporation was not in a financial position to pay
such a huge compensation amount and so by letter dated 17.03.2016
requested the original writ petitioners – landowners to accept the
Transferable Development Rights (TDR) in lieu of compensation amount
as per the Development Control Rules of the Corporation. The original
writ petitioners also at the relevant time accepted the said proposal and
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 369
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
submitted an application dated 12.05.2017 for grant of TDR. In the A
meantime, the Special Land Acquisition Officer by its letter dated
22.09.2016 informed the Municipal Corporation to deposit 30% of the
total amount of compensation and also informed that the land under
reservation fell within the flood affected area due to its proximity to
‘Jayanti Nala’ and considering the valuation of the said area as per the
B
market value of 2016-l7(A.S.R.), the amount of compensation was
reduced from Rs. 77,65,12,000/- to Rs. 43,41,29,400/-.
2.4 It appears that there was some correspondence between the
original writ petitioners and the Corporation with respect to the TDR
proposal. According to the Corporation, the grant of TDR was always
subject to the provisions of the Development Control Rules and further C
subject to satisfying the conditions mentioned in the said Rules. According
to the Municipal Corporation as per the Development Control Rules,
any owner before the grant of TDR will have to surrender the land
under reservation by carrying out necessary developments according to
prevailing Byelaws at his own cost and free of encumbrances. According D
to the Corporation, the reserved area was coming within High Flood
Line and every year for a period of fifteen days to one month, the said
area gets flooded during rainy season. According to the Corporation, the
reserved land/area is flood affected and a rivulet named ‘Jayanti Nala’
passes through the said area under reservation. Therefore, as per the
Corporation, before the TDR proposal could be considered, it was E
necessary to carry out the required development work upon the said
reserved land for making it suitable for the public purpose as per the
reservation, to be carried out by the original writ petitioners – landowners.
According to the Corporation, if the said developments are not done, the
land under reservation will not be able to be utilized for the purpose for F
which it is reserved. There were various correspondences between the
parties. However, thereafter the writ petitioners did not agree to avail of
the TDR and the original writ petitioners – landowners filed present writ
petition before the High Court and prayed for the following reliefs:-
a. Rule be issued and records and proceedings be called for; G
b. That this Hon’ble Court may be pleased to issue writ of
mandamus and/ or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby directing
the Respondent No. 1 and 2 to forthwith publish a final
notification under sub section (2) and (4) of the Sec. 126 of H
370 SUPREME COURT REPORTS [2022] 16 S.C.R.
A the M.R.T.P. Act read with Sec. 19 of the Right to Fair
Compensation and Transparency in Land Acquisition,
Rehabilitation, and Resettlement Act; 2013;
c. That this Hon’ble Court may be pleased to issue writ of
mandamus and/or any other appropriate writ, order or
B direction in the nature of writ of mandamus thereby directing
the Respondent No. 3 Corporation to forthwith deposit the
amount of compensation i.e. Rs. 77,64,12000/- with the
Respondent No. 2 and 7 and further the Respondent No. 2
and 7 may be directed to forthwith release the said amount
of compensation to the Petitioners;
C
d. Such further and other order be made as this Hon’ble Court
may deem fit and proper in the interest of justice and in the
facts and circumstances of the case.
2.5 The said petition was vehemently opposed by the Municipal
D Corporation. An affidavit in reply opposing the writ petition was filed on
behalf of the original respondent No.6 – Municipal Corporation and others.
It was vehemently submitted that the reservation has lapsed in view of
Section 127 of the MRTP Act. It was also submitted that it is not possible
for the Corporation to acquire the land on payment of huge sum of
Rs.43,41,29,400/-. It was submitted that it was beyond the financial
E capacity of the Corporation to pay such a huge compensation and it was
beyond their budgetary provision and had grave financial implication. It
was also pointed out that even the TDR proposal had not been materialized
as the original writ petitioners were not agreeable to fulfill their obligations
for grant of TDR as per Development Control Rules. It was also
F specifically pointed out that unless there is development carried out at
the cost of the original writ petitioners – landowners, it is not possible for
the Corporation to use the land for the purpose for which it is reserved.
It was specifically pointed out that the land in question is a wet land and
that the area is flood affected and a rivulet named ‘Jayanti Nala’ passes
through the said area under reservation. It was also specifically pointed
G out that the reserved area is coming within the High Flood Line and
every year for a period of fifteen days to one month the said area gets
flooded during the rainy season. Therefore, it was pointed out that it was
necessary to carry out the required development work upon the said
reserved area for making it suitable for the purposes as per reservation.
H It was also pointed out that if the said developments are not done, the
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 371
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
land under reservation shall not be able to be utilized for the purposes it A
is reserved.
2.6 Before the High Court, the original writ petitioners tendered
affidavits dated 01.08.2018 and 07.08.2018 recording that they do not
wish to avail of TDR (as observed by the High Court in paragraph No.5).
Thereafter by the impugned judgment and order, the High Court has B
disposed of the writ petition and issued the following directions in exercise
of powers under Article 226 of the Constitution of India:-
(i) We direct the Special Land Acquisition Officer (11),
Kolhapur to communicate to the third respondent - Municipal
Corporation the amount which is required to be deposited C
by the said Municipal Corporation as a condition precedent
for issuing a declaration under Section 19 of the said Act of
2013. The communication demanding the amount shall be
issued by the Special Land Acquisition Officer within one
month from the date on which this judgment and order is
uploaded; D
(ii) We may record here that there is no dispute about the
reservation of the subject land in the sanctioned development
plan and therefore, in view of the proviso to Section 125 of
the MRTP Act, the acquisition under the said Act of 2013
shall commence from the stage of declaration under section E
19 thereof;
(iii) Within a period of two months from the demand for payment
made by the Special Land Acquisition Officer as aforesaid,
the third respondent shall deposit the requisite amount with
the Collector/Special Land Acquisition Officer; F
(iv) Within a period of one month from the date of deposit of
the requisite amount by the third respondent, a declaration
under Section 19 of the said Act of 2013 shall be issued/
published in accordance with law;
G
(v) The acquisition proceedings shall be completed and
compensation shall be paid as expeditiously as possible in
accordance with law and in any case within a period of one
year from the date on which the declaration under Section
19 of the said Act of 2013 is published;
H
372 SUPREME COURT REPORTS [2022] 16 S.C.R.
A (vi) Writ petition is disposed of with the above directions;
(vii) For reporting compliance with the above directions by the
third respondent the petition shall be listed under the caption
of directions on 26th November 2018.
2.7 While issuing the aforesaid directions, the High Court has
B observed that as there was already a resolution passed by the General
Body of the Municipal Corporation to acquire the subject lands by taking
recourse to law of compulsory acquisition, therefore, there is no option
for the Municipal Corporation but to acquire the said land by taking
recourse to the Act of 2013.
C 2.8 Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 13.08.2018 passed by the High court of Judicature at
Bombay in Writ Petition No.5310 of 2018, the Kolhapur Municipal
Corporation and others have preferred the present Civil Appeal No.510
of 2022.
D 2.9 It appears that after the impugned judgment and order dated
13.08.2018 passed by the High Court and after the above directions
were issued, the appellants – Kolhapur Municipal Corporation and others
filed one Civil Application No.2461 of 2018 in Writ Petition No.5310 of
2018 for modification of the judgment and order dated 13.08.2018 and
E prayed for the direction to the original writ petitioners to accept the
TDR in lieu of monetary compensation. It was also further prayed for
directing that in the event of the failure of the Corporation to deposit the
amount, the consequences under the MRTP Act, 1966 and the Act of
2013 should follow. Both the aforesaid prayers were rejected by the
High Court vide order dated 10.12.2018 by observing that the original
F writ petitioners are not consenting to accept the TDR in lieu of monetary
compensation. The order dated 10.12.2018 passed in Civil Application
No.2461 of 2018 in Writ Petition No.5310 of 2018 is the subject matter
of present Civil Appeal No.511 of 2022.
3. Ms. Aparajita Singh, learned Senior Advocate appearing on
G behalf of the Corporation has vehemently submitted that in the facts and
circumstances of the case, the High Court has committed a grave error
in issuing a writ of Mandamus and directing the Corporation to acquire
the land in question and to pay the compensation to the original landowners
by issuing a declaration under Section 19 of the Act of 2013.
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 373
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
3.1 It is submitted that the High Court has not at all appreciated A
the fact that as such in the present case, in view of the provisions of
Section 126 r/w Section 127 of the MRTP Act, 1966, the reservation had
lapsed. It is submitted that once by operation of law, the reservation had
lapsed, no writ of Mandamus could have been issued directing acquisition
of the land for which it was reserved under the development plan.
B
3.2 It is submitted that in the present case, the subject land was
reserved under the Development Plan in the year 2001 and different
parts of the land were reserved for the purposes of garden, parking and
extension of sewage treatment plant and 12 mtr DP Road. It is submitted
that it is an admitted position that for more than ten years, neither the
land was acquired nor the declaration in relation to it was published C
under Section 126(2) or (4) of the MRTP Act. It is submitted that
thereafter the respondents served a notice to the Corporation under
Section 127 of the MRTP Act on 02.01.2012 requesting the Corporation
to acquire the land. It is submitted that however, no steps were taken to
acquire the land and the acquisition proceedings did not commence even D
within twelve months from the date of service of such notice. It is
therefore submitted that in view of Section 127 of the MRTP Act, if
within ten years from the date on which the final Development Plan
comes into force and the land reserved is not acquired by agreement nor
a declaration under sub-section (2) or sub-section (4) of Section 126 has
been published in the Official Gazette and thereafter the landowner serves E
a notice to the Development Authority to acquire the land, and, if within
twelve months from the date of the service of such notice, neither the
land is acquired nor steps are commenced for its acquisition, the
reservation shall be deemed to have lapsed. Heavy reliance is placed on
the decision of this Court in the case of Girnar Traders Vs. State of F
Maharashtra and Ors., (2007) 7 SCC 555, which has been
subsequently followed in the other decisions of this Court in the case of
Shrirampur Municipal Council, Shrirampur Vs. Satyabhamabai
Bhimaji Dawkher and Ors., (2013) 5 SCC 627 and Chhabildas
Vs. State of Maharashtra and Ors., (2018) 2 SCC 784.
G
3.3 It is therefore submitted that once the reservation is deemed
to have lapsed, the original landowners cannot insist that still their land
be acquired and they be paid the compensation. In such a situation, even
neither a writ petition would be maintainable at the instance of the
landowners nor a writ of mandamus directing the Corporation to still
H
374 SUPREME COURT REPORTS [2022] 16 S.C.R.
A acquire the land and pay the compensation can be issued. This is
particularly so when the reservation has lapsed.
3.4 It is further submitted by Ms. Singh, learned Senior Advocate
appearing on behalf of the appellant Corporation that even otherwise in
the facts and circumstances of the case, the High Court ought not to
B have directed the Corporation to acquire the land for the purpose for
which it was reserved and to pay the compensation to the original
landowners. It is submitted that the High Court has not at all appreciated
and/or considered the financial position of the Corporation and the
financial constraint faced by the Corporation, if such a huge amount of
compensation under the provisions of the Act of 2013 is to be paid by the
C Corporation. It is submitted that the entire budget of the Corporation for
land acquisition was only Rs.21 crores as against the compensation amount
of Rs.62.5 crores payable in the present case. It is submitted that
therefore it is practically impossible for the Corporation to pay such a
huge amount of compensation for the land which as such is unsuitable
D and not useable by the Corporation.
3.5 It is further submitted by the learned senior counsel on behalf
of the Corporation that the High Court has therefore not at all adverted
to the financial inability of the Corporation to acquire the land and the
unsuitability of the land for the public purpose for which it was reserved.
E It is submitted that it was specifically pointed out that the land in question
is not at all suitable and/or usable for the purpose for which the same
has been acquired, namely parking, garden etc. It is submitted that it
was specifically pointed out that the subject land is flood affected through
which a rivulet named ‘Jayanti Nala’ passes, making it unsuitable/unusable
for the public purposes for which it was reserved. It is submitted that
F therefore the original landowners cannot compel the Corporation to
acquire the land, which as such is unsuitable/unusable and non-developed
land. It is submitted that it was specifically pointed out before the High
Court that the reserved area is coming within High Flood Line and every
year for a period of fifteen days to one month, the said area gets flooded
G during rainy season. It is submitted that it was pointed out that unless
and until a major development work is carried out upon the said reserved
land for making it suitable for the public purposes as per reservation, the
landowners cannot still say that the land must be acquired, which
otherwise is not suitable and/or usable. It is submitted that if such a
request of the original landowners is accepted, in that case, every
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 375
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
landowner, whose land is otherwise unsuitable and/or not usable will see A
to it that with the connivance of the party in power and/or the persons in
the administration or management of the Corporation to reserve the land
for public purpose and thereafter compel the Corporation to acquire the
land, which otherwise is unsuitable and/or not usable. It is submitted that
the aforesaid aspect has not at all been considered by the High Court
B
though it was specifically pointed out in the counter filed on behalf of the
Corporation.
3.6 It is further submitted by Ms. Singh, learned Senior Advocate
appearing on behalf of the Corporation that the High Court has directed
the appellant to acquire the land in question for the purposes for which it
was reserved in view of the Resolution passed by the General Body. It C
is submitted that the aforesaid finding is just contrary to the law laid
down by this Court in the case of Shrirampur Municipal Council,
Shrirampur (supra). It is submitted that in the aforesaid decision it is
specifically observed and held by this Court that by mere passing of a
resolution by the Planning Authority or sending a letter to the Collector D
or even to the State Government cannot be treated as commencement
of the proceedings for the acquisition of the land under the 1966 Act
and/or 1894 Act.
3.7 Making the above submissions and relying upon the above
decisions, it is prayed to allow the present appeal and quash and set E
aside the impugned judgment and order passed by the High Court.
4. Present appeal is vehemently opposed by Shri C.U. Singh,
learned Senior Advocate appearing on behalf of the respondents – original
landowners.
4.1 It is vehemently submitted by Shri Singh, learned Senior F
Advocate appearing on behalf of the original landowners that the appellant
Corporation deserves no relief under Article 136 of the Constitution
because of its conduct in not following a consistent stand before the
High Court and this Court. It is submitted that the Corporation is barred
by the law of estoppel and the doctrine of election from changing its G
stand from first agreeing to acquire property, then offering TDR in lieu
of compensation, and finally from refusing to comply with the Hon’ble
High Court’s judgment on incorrect grounds.
4.2 It is submitted that in the present case various parts of the
land in question were reserved for the purposes of parking, playground,
H
376 SUPREME COURT REPORTS [2022] 16 S.C.R.
A garden and twelve meter wide road and extension of sewage treatment
plant. It is submitted that the reservation continued for more than ten
years. It is urged that for all these ten years, the landowners were deprived
of developing and/or using their land. It is contended that thereafter
after keeping the land in question under reservation for more than ten
years thereafter it is not open for the Corporation to say that it will not
B
acquire the land for paucity of the funds. It is submitted that when the
land in question was kept under reservation for more than ten years and
the land was not acquired, the respondents issued a purchase notice
dated 02.01.2012 to the Corporation under Section 127 of the MRTP
Act for acquisition of the land. It is submitted that in fact, the General
C Body of the Corporation thereafter passed a Resolution dated 18.02.2012
resolving that the land is required to be acquired and granting the consent
by making provision for payment of the compensation in the budget of
the Corporation. It is contended that thus it is clear that the appellant
Corporation possessed sufficient funds to acquire the land and had a
clear intention of acquiring it. It is submitted that even thereafter the
D
Municipal Commissioner issued a letter dated 22.04.2012 to the officers
of the State requesting initiation of acquisition proceedings under the
relevant statutes. Pursuant to this, the Special Land Acquisition Officer
issued a letter dated 28.10.2015 to the Municipal Commissioner calling
upon him to deposit an amount of Rs.77,64,12,000/- in the PLA Account
E of the SLAO’s office. It is submitted that it is at this point that the
appellant Corporation decided to not acquire the land considering the
amount of money it was directed to pay as compensation. It is submitted
that even thereafter also and despite having agreed to acquire the land
in question, the Corporation issued a letter dated 17.03.2016 calling upon
the landowners to submit a proposal for grant of TDR in lieu of monetary
F
compensation. It is submitted that the landowners initially rejected the
Corporation’s proposal for TDR by letter dated 17.05.2016 since the
TDR offered was not in accordance with the correct rates prescribed
by the concerned DCR that was then in force. It is submitted that only
thereafter and aggrieved by the gross inaction on the part of the
G Corporation, the respondents - landowners were compelled to file writ
petition before the High Court being Writ Petition No. 4790 of 2018
praying for similar reliefs as the respondents had sought in the present
matter with respect to the part of the land, which was reserved for
playground. That the Hon’ble High Court allowed the said writ petition
vide order dated 06.08.2018. It is submitted that in the said order, the
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 377
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
High Court also took note of the Corporation’s stand that it needs the A
respondents’ land, but it is unable to purchase it only due to its financial
constraints. It is submitted that by the said judgment, the High Court also
directed the Corporation to take steps for issuing a declaration under the
MRTP Act and to complete the entire process of acquisition. It is submitted
that thereafter since the Corporation failed to implement the High Court’s
B
aforesaid judgment and order dated 06.08.2018, the respondents –
landowners filed a contempt petition and the Corporation had offered
TDR in lieu of compensation, which the respondents had accepted. It is
urged that by the impugned judgment, the High Court has granted similar
reliefs, which were granted in Writ Petition No. 4790 of 2018 and has
directed the Corporation to initiate the acquisition proceedings. C
4.3 It is submitted that even before the High Court, the Corporation
filed a Civil Application No. 2461 of 2018, willing to offer TDR in lieu of
compensation to be paid for the acquisition of the reserved land. Thus, it
is not open for the Corporation to take a contrary stand and even oppose
the TDR in lieu of compensation for acquisition of the land under D
reservation, which the landowners are ready to accept. It is contended
that the landowners are entitled to the TDR in lieu of compensation
amount as per the DCR.
4.4 It is submitted by Shri C.U. Singh, learned Senior Advocate
appearing on behalf of the landowners that as the Corporation has E
changed its stand from time to time before the Hon’ble High Court as
well as before this Court by not agreeing to acquire the land in question
and not willing to offer TDR in lieu of compensation amount, the
Corporation cannot be permitted to approbate and reprobate. Reliance
is placed on the decisions of this Court in the case of Mumbai
International Airport Private Limited Vs. Golden Chariot Airport F
& Anr., (2010) 10 SCC 422 as well as Joint Action Committee of
Air Line Pilots’ Association of India (ALPAI) and Ors. Vs. Director
General of Civil Aviation and Ors., (2011) 5 SCC 435 and Karam
Kapahi and Ors. Vs. Lal Chand Public Charitable Trust and Anr.,
(2010) 4 SCC 753. G
4.5 It is submitted that in the aforesaid decisions, this Hon’ble
Court had explained the common law doctrine of approbation and
reprobation as a facet of the law of estoppel. It is contended that therefore
the appellant Corporation is also bound by the same doctrine of approbation
and reprobation, which acts as an estoppel against its decision to deny H
378 SUPREME COURT REPORTS [2022] 16 S.C.R.
A TDR to the respondents - landowners after having previously offered it
on its own accord.
4.6 It is further submitted by Shri C.U. Singh, learned Senior
Advocate appearing on behalf of the original landowners that in the
facts and circumstances of the case, it cannot be said that the reservation
B of the land in question has lapsed. It is submitted that on lapsing of the
reservation, a notification was required to be issued by an order publishing
in the Official Gazette as per Section 127(2) of the MRTP Act. That in
the present case since that was not done, the reservation in respect of
landowners cannot be said to have lapsed. It is submitted that therefore
the Corporation cannot now take the stand of lapse before this Hon’ble
C Court at this stage of proceedings, especially since it did not take this
stand before the High Court.
4.7 It is further submitted by Shri C.U. Singh, learned Senior
Advocate appearing on behalf of the landowners that even otherwise
considering the relevant provisions of the MRTP Act, more particularly,
D Section 22 read with Section 31(5), the Corporation is bound to make
provision in the Development Plan for parking, garden, which are public
purposes. It is submitted that it is the duty cast upon the Corporation to
make necessary provisions for public purposes in the Development Plan.
It is submitted that if the stand on behalf of the Corporation in the present
E case is accepted, in that case, there shall not be any garden, parking
etc., which are public purposes and it can be said that the Corporation
has failed to fulfill its obligations under the MRTP Act. Reliance is placed
upon the decision of this Court in the case of Municipal Corporation
of Greater Mumbai and Ors. Vs. Hiraman Sitaram Deorukhar
and Ors., (2019) 14 SCC 411.
F
4.8 It is further submitted by Shri C.U. Singh, learned Senior
Advocate appearing on behalf of the landowners that in the present
case, the Corporation has already granted TDR to the present respondents
in accordance with Clause 11.2.4 of the Unified DCPR, 2020 for acquiring
the portion of the land reserved for the playground. It is submitted that
G as per Clause 11.2.4(a), the TDR for a non-congested area is 1:2.
However, the quantum of TDR is reduced to 1:1.85 in case levelling of
land and construction/erection of a compound wall/fencing to the land
under surrender is not desirable considering the total area of reservation.
It is submitted that the respondents are unable to undertake such
H construction/erection work in respect of their land. It is submitted that
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 379
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
therefore the Corporation offered TDR in the ratio of 1:1.85 instead of A
1:2. It is submitted that in other words, the respondents are effectively
ready and willing to accept the TDR in lieu of compensation despite
suffering a higher cut. It is urged that the respondents are still ready to
accept the TDR in lieu of the compensation amount for the reserved
land to be acquired.
B
4.9 Making the above submissions, it is prayed to dismiss the
present appeals and confirm the impugned judgment and order passed
by the High Court.
5. Heard the learned counsel for the respective parties at length.
6. The short question which is posed for the consideration of this C
Court is:
Whether a writ of Mandamus can be issued by the High Court in
exercise of powers under Article 226 of the Constitution of India
directing the authority/Municipal Corporation to acquire the land
reserved for a particular purpose and to pay the compensation to D
the original landowners despite the fact that the reservation is
deemed to have lapsed in view of the statutory provisions and
that the land which is directed to be acquired and for which the
compensation is directed to be paid to the original landowners is
unsuitable and unusable for the purposes for which it is reserved? E
7. In the present case, the respondents herein – original landowners
filed a writ petition before the High Court and prayed for the following
reliefs:-
a. Rule be issued and records and proceedings be called for;
F
b. That this Hon’ble Court may be pleased to issue writ of
mandamus and/ or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby directing
the Respondent No. 1 and 2 to forthwith publish a final
notification under sub section (2) and (4) of the Sec. 126 of
the M.R.T.P. Act read with Sec. 19 of the Right to Fair G
Compensation and Transparency in Land Acquisition,
Rehabilitation, and Resettlement Act; 2013;
c. That this Hon’ble Court may be pleased to issue writ of
mandamus and/or any other appropriate writ, order or
direction in the nature of writ of mandamus thereby directing H
380 SUPREME COURT REPORTS [2022] 16 S.C.R.
A the Respondent No. 3 Corporation to forthwith deposit the
amount of compensation i.e. Rs. 77,64,12000/- with the
Respondent No. 2 and 7 and further the Respondent No. 2
and 7 may be directed to forthwith release the said amount
of compensation to the Petitioners;
B d. Such further and other order be made as this Hon’ble Court
may deem fit and proper in the interest of justice and in the
facts and circumstances of the case.
8. The writ petition and the aforesaid prayers were vehemently
opposed by the appellant – Corporation inter alia submitting (i) that the
C Corporation is not in a position to pay the compensation and it is beyond
their budgetary provisions; (ii) that the reservation under the MRTP Act
has lapsed in view of Section 126 r/w Section 127 of the MRTP Act; and
(iii) that the land sought to be directed to be acquired and for which
compensation is to be paid is unsuitable and unusable for the purposes
for which the land has been reserved namely parking, garden etc.
D However, by the impugned judgment and order and without adverting to
the relevant facts and circumstances of the case, the High Court has
directed the Corporation to issue a declaration under Section 19 of the
Act of 2013 and to pay the compensation to the original landowners.
Virtually, the High Court has directed the Municipal Corporation to acquire
E the land in question for the purposes for which the same was put under
reservation under the Development Plan.
8.1 From the impugned judgment and order passed by the High
Court, it appears that the High Court has issued a writ of Mandamus
and has directed the Corporation to acquire the land for the purposes for
F which it was reserved under the Development Plan mainly on the ground
that the General Body of the Corporation had passed a Resolution to
acquire the land and by further observing that as the General Body of
the Corporation had passed a Resolution to acquire the land as the same
is required by the Corporation for public purposes namely parking, garden
etc. Therefore, and as observed hereinabove, the question which is posed
G for the consideration of this Court is, whether the High Court was justified
in issuing the writ of Mandamus directing the Corporation to acquire the
land for the purposes for which it was reserved under the Development
Plan.
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THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 381
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
9. While considering the issue/issues involved, the scheme of the A
MRTP Act, more particularly, with respect to the Development Plan is
required to be referred to and considered.
9.1 Chapter III of the MRTP Act deals with Development Plan.
As per Section 21 of the Act as soon as may be after the commencement
of the Act, but not later than three years from such commencement, and B
subject to the provisions of the Act, 1966, every Planning Authority shall
carry out a survey, prepare an existing land-use map and prepare a draft
Development plan for the area within its jurisdiction, in accordance with
the provisions of a Regional plan, where there is such a plan. As per
sub-section (2) of Section 21, every Planning Authority constituted shall
declare its intention to prepare a draft Development plan, prepare such C
plan and publish a notice of such preparation in the Official Gazette and
in such other manner as may be prescribed and submit the draft
Development plan to the State Government for sanction. Therefore, it is
the duty cast upon the Planning Authority to prepare a draft Development
Plan; to issue a declaration of intention to prepare the Development D
Plan and submit the same to the State Government for sanction within
the period specified or within the extended period as provided under the
Act, 1966. Section 22 of the Act, 1966 provides for what should be
contained in the Development plan. As per Section 22 of the Act, 1966,
in the Development Plan, there shall be provisions for reservation for
public purposes, which include provisions for proposals for designation E
of the land for various public purposes. Section 22 reads as under:-
“22. A Development plan shall generally indicate the manner in
which the use of land in the area of a Planning Authority shall be
regulated, and also indicate the manner in which the development
of land therein shall be carried out. In particular, it shall provide so F
far as may be necessary for all or any of the following matters,
that is to say,—
(a) proposals for allocating the use of land for purposes,
such as residential, industrial, commercial, agricultural, recreational;
G
(b) proposals for designation of land for public purpose,
such as schools, colleges and other educational institutions, medical
and public health institutions, markets, social welfare and cultural
institutions, theatres and places for public entertainment, or public
assembly, museums, art galleries, religious buildings and government
H
382 SUPREME COURT REPORTS [2022] 16 S.C.R.
A and other public buildings as may from time to time be approved
by the State Government ;
(c) proposals for designation of areas for open spaces,
playgrounds, stadia, zoological gardens, green belts, nature
reserves, sanctuaries and dairies ;
B (d) transport and communications, such as roads, high-ways,
park-ways, railways, water-ways, canals and air ports, including
their extension and development ;
(e) water supply, drainage, sewerage, sewage disposal,
other public utilities, amenities and services including electricity
C and gas ;
(f) reservation of land for community facilities and services;
(g) proposals for designation of sites for service industries,
industrial estates and any other development on an extensive scale;
D (h) preservation, conservation and development of areas
of natural scenary and landscape ;
(i) preservation of features, structures or places of historical,
natural, architectural and scientific interest and educational value
and of heritage buildings and heritage precincts;
E (j) proposals for flood control and prevention of river
pollution;
(k) proposals of the Central Government, a State
Government, Planning Authority or public utility undertaking or
any other authority established by law for designation of land as
F subject to acquisition for public purpose or as specified in a
Development plan, having regard to the provisions of section 14
or for development or for securing use of the land in the manner
provided by or under this Act ;
(l) the filling up or reclamation of low lying, swampy or
G unhealthy areas or levelling up of land ;
(m) provisions for permission to be granted for controlling
and regulating the use and development of land within the
jurisdiction of a local authority including imposition of fees, charges
and premium, at such rate as may be fixed by the State Government
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THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 383
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
or the planning Authority, from time to time, for grant of an A
additional Floor Space Index or for the special permissions or for
the use of discretionary powers under the relevant Development
Control Regulations, and also for imposition of conditions and
restrictions in regard to the open space to be maintained about
buildings, the percentage of building area for a plot, the location,
B
number, size, height, number of storeys and character of buildings
and density of population allowed in a specified area, the use and
purposes to which buildings or specified areas of land may or
may not be appropriated, the sub-division of plots, the
discontinuance of objectionable users of land in any area in
reasonable periods, parking space and loading and unloading space C
for any building and the sizes of projections and advertisement
signs and boardings and other matters as may be considered
necessary for carrying out the objects of this Act.”
9.2 Therefore, while preparing the draft Development Plan/
Development Plan, the Corporation has to make provisions for various D
public purposes enumerated under Section 22 of the Act, 1966. It is to
be noted that while preparing a draft Development Plan/Development
Plan, every Planning Authority shall have to carry out a survey and
prepare an existing land-use map. Thereafter, the Planning Authority
and the State Government are required to follow the procedure as
mandated under the Act, 1966. While preparing the Development Plan, E
the Planning Authority may also designate (popularly known as ‘keep
the land under reservation’) any land for purposes specified in Clauses
(b) and (c) of the Section 22. Sub-section (5) of Section 31 provides that
if a Development Plan contains any proposal for the designation of any
land for a purpose specified in clauses (b) and (c) of section 22, and if F
such land does not vest in the Planning Authority, the State Government
shall not include that purpose in the Development Plan, unless it is satisfied
that the Planning Authority will be able to acquire such land by private
agreement or compulsory acquisition not later than ten years from the
date on which the Development plan comes into operation.
G
9.3 Therefore, and as observed hereinabove while preparing a
draft Development Plan, the Planning Authority and/or its officer(s)
appointed shall have to carry out the survey and prepare an existing
land-use map. Therefore, while preparing a Development Plan and while
designating a particular land and/or reserving a particular land for public
H
384 SUPREME COURT REPORTS [2022] 16 S.C.R.
A purposes mentioned in Clauses (b) and (c) of Section 22, the Planning
Authority has to bear in mind and/or take into consideration whether the
particular land, which is earmarked and/or reserved and/or designated
for a public purpose, which will have to be acquired on payment of
compensation is suitable and/or useable or not for the purposes for which
it is reserved for public purposes. It should not lead to a situation where
B
for some oblique reasons, the Planning Authority keeps a particular land
under reservation and thereafter acquires it and pays the compensation
for the land which is not useable and/or suitable to be used for a particular
purpose merely because the same is under reservation. If the same is
permitted, it will amount to a fraud and colourable exercise of power as
C then the Authority will pay compensation with respect to land which
otherwise is not usable and/or suitable. Therefore, while preparing the
Development Plan and putting a particular private land under reservation
and/or while designating the private land for a particular public purpose
under the Development Plan, a duty is cast upon the Planning Authority
to make a survey and come to a specific opinion by taking into
D
consideration all relevant facts that the land which is kept under
reservation and which will have to be acquired on payment of
compensation is suitable and/or usable for the purpose for which it is to
be reserved.
9.4 In the present case, even according to the Corporation, the
E land in question is not at all suitable and even usable for the purposes for
which it is reserved, i.e., for public purposes like parking, garden etc., as
the said land is a flood affected and a rivulet named ‘Jayanti Nala’ passes
through the said area under reservation. It was also the case on behalf
of the Corporation before the High Court and even before this Court
F that the reserved area is coming within High Flood Line and every year
for a period of fifteen days to one month, the said area gets flooded
during rainy season and that it will be necessary to carry out the required
development work at a huge cost upon the said reserved land for making
it suitable for public purposes as per reservation. It was/is the specific
case on behalf of the Corporation that if the said development is not
G done, the land under reservation cannot be able to be utilized for the
purposes for which it is reserved. If that be so, we fail to understand
what the reason was for the Planning Authority to designate such a land
for a public purpose and/or to reserve the land in question in the
Development Plan for a public purpose and thereafter to acquire and
H pay the compensation if the said land was not at all suitable and/or usable.
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 385
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
9.5 As observed hereinabove, at the time of preparing the A
Development Plan and keeping a particular land reserved for a particular
public purpose, an important duty is cast upon the Planning Authority to
first satisfy that the land reserved which thereafter has to be acquired
on payment of compensation is very much suitable and usable for that
public purpose. In the instant case, how the area, which is a flood affected
B
area and through which a rivulet named ‘Jayanti Nala’ passes can be
kept under reservation for a particular public purpose and can be used
for public purposes like parking and/or for widening of the road etc.?
Therefore, while preparing the Development Plan and reserving and/or
designating a particular land for a particular public purpose, great care
and caution is to be exercised by the Planning Authority. As per Section C
125 of the Act, any land required, reserved or designated in a Development
plan or Town Planning Scheme for a public purpose or purposes including
plans for any area of comprehensive development or for any new town
shall be deemed to be land needed for a public purpose within the meaning
of the Land Acquisition Act, 1894. Hence, all the parameters concerning
D
the suitability of the land for the particular public purpose for which the
land is to be reserved and acquired for utilization must be borne in mind
as a factor of paramount importance.
10. The next relevant provisions with which we are concerned
would be Sections 126 and 127 of the MRTP Act, 1966. The said
provisions read as under:- E
“126. Acquisition of land required for public purposes
specified in plans.-(1) Where after the publication of a draft
Regional plan, a Development or any other plan or town planning
scheme, any land is required or reserved for any of the public
purposes specified in any plan or scheme under this Act at any F
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
G
(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 lessor’s interest to
H
386 SUPREME COURT REPORTS [2022] 16 S.C.R.
A be determined by any of the said Authorities concerned on the
basis of the principles laid down in the Land Acquisition Act, 1894,
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
B
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 an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894,
C
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 Land
Acquisition Act, 1894, as the case may be, shall vest absolutely
D 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 3[if the State Government
E (except in cases falling under section 49 4[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 6 of the Land Acquisition Act, 1894, in respect
F 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
G 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 6,
the Collector shall proceed to take order for the acquisition of the
land under the said Act; and the provisions of that Act shall apply
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 387
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
to the acquisition of the said land with the modification that the A
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; B
(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 undeveloped area;
and
(iii) in any other case, the market value on the date of C
publication of the interim development plan, the draft development
plan or the plan for the area or areas for comprehensive
development, whichever is earlier, or as the case may be, the date
of publication of the draft Town Planning Scheme:
Provided that, nothing in this sub-section shall affect the D
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 E
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. F
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and subsection (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,
G
1993, the State Government may make a fresh declaration for
acquiring the land under the Land Acquisition Act, 1894, 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. H
388 SUPREME COURT REPORTS [2022] 16 S.C.R.
A 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 2[or if a declaration under sub-section (2) or (4)
of section 126 is not published in the Official Gazette within such
B
period, the owner or any person interested in the land may serve
notice, alongwith the 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 twelve months] from the date of the service of such
C 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
D
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.”
E 10.1 Section 126 of the MRTP Act provides that where after the
publication of a draft Regional plan, a Development or any other plan or
town planning scheme, any land is required or reserved for any of the
public purposes specified in any plan or scheme under MRTP Act at any
time, the Planning Authority, Development Authority, or as the case may
be, any Appropriate Authority has to acquire the land as provided under
F Sections 126(1)(a), (b) or (c) by making an application to the State
Government for acquiring such land under the Land Acquisition Act,
1894 (now it would be the Act of 2013). On receipt of such application
by the Planning Authority/Development Authority to the State
Government for acquiring such land under the Land Acquisition Act,
G 1894, the procedure as contemplated and required under Sections 126(2)
to 126(4) shall have to be followed. Section 127 of the MRTP Act further
provides that if any land reserved, allotted or designated for any purpose
specified in any plan under MRTP Act is not acquired by agreement or
otherwise within ten years from the date on which a final Regional Plan,
or final Development Plan comes into force or if a declaration under
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 389
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
sub-section (2) or (4) of Section 126 is not published in the Official A
Gazette within such period (ten years), the owner or any person interested
in the land may serve a notice to the Planning Authority, the Development
Authority or, as the case may be, the Appropriate Authority to purchase
the land reserved. If within twelve months from the date of the service
of such notice, the land is not acquired or no steps are commenced for
B
its acquisition, the reservation, allotment or designation shall be deemed
to have lapsed, and thereupon, the land shall be deemed to be released
from such reservation, allotment or designation and shall become
available to the owner for the purpose of development as otherwise,
permissible in the case of adjacent land under the relevant plan. Sub-
section (2) of Section 127 further provides that on lapsing of the C
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.
10.2 What can be said to be taking “steps” as mentioned in Section
127 of the MRTP Act has been extensively dealt with and considered by D
this Court in the case of Girnar Traders (supra), Shrirampur
Municipal Council, Shrirampur (supra) and Chhabildas (supra).
10.3 In the case of Girnar Traders (supra), this Court had
occasion to consider the entire scheme of Sections 126 and 127. Insofar
as Section 127 is concerned, this Court has observed and held in E
paragraphs 31 and 32 as under:-
“31. Section 127 prescribes two-time periods. First, a period of
10 years within which the acquisition of the land reserved, allotted
or designated has to be completed by agreement from the date on
which a regional plan or development plan comes into force, or F
the proceedings for acquisition of such land under the MRTP Act
or under the LA Act are commenced. Secondly, if the first part of
Section 127 is not complied with or no steps are taken, then the
second part of Section 127 will come into operation, under which
a period of six months is provided from the date on which the
notice has been served by the owner within which the land has to G
be acquired or the steps as aforesaid are to be commenced for its
acquisition. The six month period shall commence from the date
the owner or any person interested in the land serves a notice on
the planning authority, development authority or appropriate
authority expressing his intent claiming dereservation of the land. H
390 SUPREME COURT REPORTS [2022] 16 S.C.R.
A If neither of the things is done, the reservation shall lapse. If there
is no notice by the owner or any person interested, there is no
question of lapsing reservation, allotment or designation of the
land under the development plan. Second part of Section 127
stipulates that the reservation of the land under a development
scheme shall lapse if the land is not acquired or no steps are taken
B
for acquisition of the land within the period of six months from the
date of service of the purchase notice. The word “aforesaid” in
the collocation of the words “no steps as aforesaid are commenced
for its acquisition” obviously refers to the steps contemplated by
Section 126 of the MRTP Act.
C 32. If no proceedings as provided under Section 127 are 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
D only be 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 its utilisation has to be in conformity with the relevant
plan for which the adjacent lands are permitted to be utilised.”
E 10.4 On emphasizing the word “steps” used in Section 127 of the
MRTP Act, it is observed and held in paragraphs 56 and 57 as under:-
“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
F purpose it is permissible under the town planning scheme. The
step taken under the section 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 object of
G 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 a
step towards acquisition.
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 391
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
57. It may also be noted that the legislature while enacting Section A
127 has deliberately used the word “steps” (in plural and not in
singular) which are required to be taken for acquisition of the
land. On construction of Section 126 which provides for acquisition
of the land under the MRTP Act, it is apparent that the steps for
acquisition of the land would be issuance of the declaration under
B
Section 6 of the LA Act. Clause (c) of Section 126(1) merely
provides for a mode by which the State Government can be
requested for the acquisition of the land under Section 6 of the
LA Act. The making of an application to the State Government
for acquisition of the land would not be a step for acquisition of
the land under reservation. Sub-section (2) of Section 126 leaves C
it open to the State Government either to permit the acquisition or
not to permit, considering the public purpose for which the
acquisition is sought for by the authorities. Thus, the steps towards
acquisition would really commence when the State Government
permits the acquisition and as a result thereof publishes the
D
declaration under Section 6 of the LA Act.”
10.5 In Shrirampur Municipal Council, Shrirampur (supra),
it was the case on behalf of the Planning Authority that after the purchase
notice as per Section 127(1) is served and the Planning Authority and/or
the Corporation has passed a resolution to acquire the land and it is
communicated to the State Government, it can be said to be taking E
“steps” and therefore in such a situation the reservation cannot be said
to have lapsed. The aforesaid position came to be negated by this Court
in the aforesaid decision after considering the judgment of this Court in
the case of Girnar Traders (supra). It is specifically observed and
held that the expression “no steps as aforesaid” used in Section 127 of F
the Act, 1966 has to be read in the context of the provisions of the Act of
1894 and now the Act of 2013 and a mere passing of a Resolution by the
Planning Authority or sending a letter to the Collector or even to the
State Government cannot be treated as commencement of the
proceedings for the acquisition of the land under the 1966 Act and/or
1894 Act or now the Act of 2013. It is observed and held that publication G
of a declaration under Section 6(2) of the Act of 1894 can be said to be
conclusive evidence that the land is needed for a public purpose and
imply taking active steps for the acquisition of the particular piece of
H
392 SUPREME COURT REPORTS [2022] 16 S.C.R.
A land. In paragraphs 42 and 43 of the said judgment, it is observed and
held as under:-
“42. We are further of the view that the majority in Girnar
Traders [Girnar Traders v. State of Maharashtra, (2007) 7 SCC
555] had rightly observed that steps towards the acquisition would
B really commence when the State Government takes active steps
for the acquisition of the particular piece of land which leads to
publication of the declaration under Section 6 of the 1894 Act.
Any other interpretation of the scheme of Sections 126 and 127
of the 1966 Act will make the provisions wholly unworkable and
leave the landowner at the mercy of the Planning Authority and
C the State Government.
43. The expression “no steps as aforesaid” used in Section 127
of the 1966 Act has to be read in the context of the provisions of
the 1894 Act and mere passing of a resolution by the Planning
Authority or sending of a letter to the Collector or even the State
D Government cannot be treated as commencement of the
proceedings for the acquisition of land under the 1966 Act or the
1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the
State Legislature has made a definite departure from the scheme
of acquisition enshrined in the 1894 Act. But a holistic reading of
E these provisions makes it clear that while engrafting the substance
of some of the provisions of the 1894 Act in the 1966 Act and
leaving out other provisions, the State Legislature has ensured
that the landowners/other interested persons, whose land is utilised
for execution of the development plan/town planning scheme, etc.,
are not left high and dry. This is the reason why time-limit of ten
F years has been prescribed in Section 31(5) and also under Sections
126 and 127 of the 1966 Act for the acquisition of land, with a
stipulation that if the land is not acquired within six months of the
service of notice under Section 127 or steps are not commenced
for acquisition, reservation of the land will be deemed to have
G lapsed. Shri Naphade’s interpretation of the scheme of Sections
126 and 127, if accepted, will lead to absurd results and the
landowners will be deprived of their right to use the property for
an indefinite period without being paid compensation. That would
tantamount to depriving the citizens of their property without the
sanction of law and would result in violation of Article 300-A of
H the Constitution.”
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 393
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
10.6 Subsequently, in the case of Chhabildas (supra), it has been A
observed and held by this Court after considering the decisions of this
Court in the cases of Girnar Traders (supra) and Shrirampur
Municipal Council, Shrirampur (supra) that if a period of ten years
has elapsed from the date of publication of the plan in question, and no
steps for acquiring the land have been taken, then once a purchase notice
B
is served under Section 127, steps to acquire the land must follow within
a period of one year from the date of service of such notice, or else the
land acquisition proceedings would lapse.
11. Thus, as per the law laid down by this Court in the aforesaid
three decisions, if the land reserved under the draft Development Plan/
Development Plan is not acquired within a period of ten years form the C
date of final Development Plan and thereafter after expiry of ten years,
the landowners serve a purchase notice and thereafter within a period
of one year, no steps are taken to acquire the land, the reservation/
allocation is deemed to have lapsed and the land stand released from
such reservation/allocation. As held above, declaration under Section 6 D
of the Act of 1894 can be said to be taking steps as contemplated under
Section 127 of the MRTP Act. After the enactment of the Act of 2013,
the declaration under Section 6 of the Act of 1894 is now to be read and/
or is substituted by declaration under Section 19 of the Act of 2013.
Therefore, if within a period of one year from the date of receipt of
purchase notice as per Section 127, a declaration under Section 19 of E
the Act, 2013 is not issued and the land is not acquired, the reservation/
allocation under the Development Plan is deemed to have lapsed and
the land is released from such reservation/allocation.
11.1 Applying the law laid down by this Court in the aforesaid
decisions to the present case, the first Development Plan under which F
the original writ petitioners’ land was reserved for public purposes was
in the year 1976. Thereafter the second amended Development Plan
was published on 18.12.1999 and came to be implemented from
01.02.2000, under which also the land of the original writ petitioners was
reserved for public purposes. But the same had not been acquired for G
ten years despite the respondents – original writ petitioners having issued
a purchase notice dated 02.01.2012 under Section 127 of the MRTP Act
for acquisition of the reserved area. A mere Resolution being passed by
the General Body of the Corporation to acquire the land and sending a
letter to the Collector to acquire the land, without any further steps being
H
394 SUPREME COURT REPORTS [2022] 16 S.C.R.
A taken under the Land Acquisition Act, namely no declaration under
section 6 thereof being issued within a period of one year from the receipt
of the said purchase notice, would result in the reservation as deemed to
have lapsed.
12. In the present case, the High Court has issued a writ of
B Mandamus directing the Corporation to issue a declaration under Section
19 of the Act of 2013 mainly on the ground that the General Body of the
Corporation had passed a Resolution dated 18.02.2012 resolving that
the land in question is required to be acquired and the same is needed for
the purpose for which it has been reserved. However, in our view, mere
passing of a Resolution and/or making a budgetary provision for payment
C of the compensation in the budget cannot be said to be taking steps as
contemplated under section 127 of the MRTP Act.
Therefore, once the reservation of land under the Development
Plan is deemed to have lapsed by operation of law and it is released
from reservation, no writ of Mandamus could have been issued by the
D High Court directing the Corporation to still acquire the land and to issue
a declaration under Section 19 of the Act of 2013 (as in the meantime,
the Land Acquisition Act, 1894 has been repealed and Act of 2013 has
been enacted). Once by operation of law, the reservation is deemed to
have lapsed, it is lapsed for all purposes and for all times to come.
E 13. Now, so far as the observation made by the High Court that
after the reservation is deemed to have lapsed, it has not been notified in
the Official Gazette as required under Section 127(2) of the MRTP Act
is concerned, we observe that notification in the Official Gazette is only
a consequential act and it has nothing to do with the actual lapsing of
F reservation by operation of law as the reservation is deemed to have
lapsed under Section 127(1). Thereafter issuance of the notification of
lapse of the reservation of land is only a procedural act and non-issuance
of such a notification in the Official Gazette with respect to lapse of the
reservation, allocation or designation would not affect the lapse of the
reservation under Section 127(1) of the MRTP Act.
G
14. Therefore, as such once the reservation with respect to the
land in question was deemed to have lapsed as observed hereinabove,
no further writ of mandamus could have been issued by the High Court
to acquire the land and thereafter pay the compensation to the landowners,
as on the lapse of the reservation, the land in question is free from
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 395
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
reservation and the landowners can use it as if there is no reservation, A
however, subject to provisions of the MRTP Act.
15. Even otherwise, in the facts and circumstances of the case,
the High Court had erred and/or the High Court was not justified in
directing the Municipal Corporation to acquire the land in question and
to issue a declaration under Section 19 of the Act of 2013 and to pay B
compensation under the Act of 2013. It is to be noted that right from the
very beginning it was stated in the counter before the High Court that
the land in question was not suitable and/or usable for the purposes for
which it has been reserved. It was specifically pointed out that the subject
land is flood affected through which a rivulet named ‘Jayanti Nala’ passes,
making it unsuitable for the public purposes for which it was reserved. It C
was also specifically pointed out that unless and until the substantial
development is carried out, the land in question is not usable at all. It was
also specifically pointed out that the reserved area is coming within High
Flood Line and every year for a period of fifteen days to one month, the
said area gets flooded during rainy season. In that view of the matter, D
the High Court ought not to have directed the Corporation to still acquire
the land and pay the compensation to the original landowners though the
land in question is unsuitable and unusable for the public purposes for
which it has been reserved. As observed hereinabove, as such at the
time when the planning was made and the land in question was put
under reservation for public purposes, a duty was cast upon the Planning E
Officer to consider whether the land, which will have to be acquired and
for which the compensation is to be paid is really suitable and/or usable
for the public purposes for which it is reserved. Otherwise, every
landowner will see to it that though his land is not suitable and/or not
very valuable, is put under reservation and the same is acquired by the F
Corporation and/or the Planning Authority and thereafter he is paid the
compensation. No Corporation and/or the Planning Authority and/or the
Appropriate Authority can be compelled to acquire the land which
according to the Corporation/Planning Authority is not suitable and/or
usable for the purposes for which it is reserved. Any other interpretation
would lead to colourable and fraudulent exercise of power and cause G
financial burden on the public exchequer.
16. At this stage, it is required to be noted that in fact there was a
valid reason for the Corporation not to go ahead with the acquisition.
Under the Act of 2013, the Corporation was required to pay a huge sum
H
396 SUPREME COURT REPORTS [2022] 16 S.C.R.
A of Rs. 77,65,12,000/- by way of compensation under the Act of 2013.
According to the Corporation, when the entire annual budget for
acquisition was Rs.21 crores, it was beyond their financial position and/
or budgetary provision to pay such a huge compensation, that too, for
the land which is not suitable and/or useable for the purposes for which
it has been reserved. It may be true that under the MRTP Act, in the
B
Development Plan, the Planning Authority and/or the Appropriate
Authority has to make the provisions for the public purposes mentioned
in Clauses (b) and (c) of Section 22 and sub-section (5) of Section 31 of
the MRTP Act and that is also desired for an appropriate planning of a
city and therefore the financial constraint cannot be the sole consideration
C to acquire the land for the purposes for which it has been reserved
namely public purposes. However, at the same time, when such a huge
amount of compensation is to be paid and there would be a heavy financial
burden, which as such is beyond the financial capacity of the Corporation,
such a financial constraint can be said to be one of the relevant
considerations, though not the sole consideration before embarking upon
D
reservation of a particular extent of land for development. Even
otherwise, in the facts and circumstances of this case, when land is
found to be unsuitable and unusable for the purposes for which it has
been reserved, Corporation cannot be compelled to pay a huge
compensation for such a useless and unsuitable land.
E 17. Now, the submission on behalf of the original landowners that
if the Corporation is not in a position to pay the compensation, in that
case, they are ready to accept the TDR in lieu of the amount of
compensation shall be considered. At one point of time, the aforesaid
proposal was under consideration by the Corporation and the Corporation
F even moved a Civil Application before the High Court to direct the
landowners to accept the TDR. Therefore, on the principle of approbate
and reprobate, it is contended by the landowners that the Corporation
cannot now be permitted to deny TDR to the original landowners, we
observe that first of all, it is required to be noted that the said principle of
approbate and reprobate would be equally appliable to the landowners
G also. Before the High Court, the original landowners specifically filed
the affidavits dated 01.08.2018 and 07.08.2018, as observed and noted
by the High Court in the impugned judgment and order in paragraph 5
that they do not wish to avail of TDR and their only prayer before the
High Court was to acquire the land and to pay them the compensation.
H
THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV 397
PATIL (DEAD) THROUGH L.R.S [M. R. SHAH, J.]
Therefore, now it is not open for the respondents -original landowners to A
pray for the TDR in respect of the land in question.
17.1 Even otherwise, a landowner is entitled to TDR in lieu of
compensation with respect to the land reserved provided the land to be
acquired is suitable and/or usable by the Corporation. Once it is found
that the land is not usable and/or suitable for the purposes for which it B
has been reserved, the Corporation cannot still be compelled and directed
to acquire the land and grant TDR in lieu of amount of compensation.
Even as per Clause 11.2.2 of the Unified Development Control and
Promotion Regulations, 2020 (UDCPR, 2020) for Maharashtra State
under which the TDR is claimed, the compensation in terms of TDR
shall be permissible for:- C
“xxxxxxxxxxxx
ii) lands under any deemed reservations according to any
regulations prepared as per the provisions of Maharashtra Regional
& Town Planning Act,1966;
D
xxxxxxxxxxxx
v) development or construction of the amenity on the reserved or
deemed reserved land;
xxxxxxxxxxxx”
E
Therefore, it can be argued that there cannot be any TDR in lieu
of compensation to be paid for the reserved land which reservation is
deemed to have lapsed as in the instant case.
17.2 Even Clause 11.2.3 of the above Regulations states that it
shall not be permissible to grant TDR for existing nallah, river, natural
F
stream, natural pond, tank, water bodies etc. and reservations which are
not developable under the provisions of UDCPR, 2020.
Therefore, for the reasons stated hereinabove, the prayer of the
respondents to grant them TDR deserves rejection and is hereby rejected.
18. In view of the above and for the reasons stated above, the G
present appeal succeeds. The impugned judgment and order passed by
the High Court directing the appellant Corporation to issue a declaration
under Section 19 of the Act of 2013 and consequently to acquire the
land in question and to pay the compensation to the respondents – original
landowners as per the provisions of Act of 2013 is hereby quashed and
H
398 SUPREME COURT REPORTS [2022] 16 S.C.R.
A set aside. Consequently, the original Writ Petition (Writ Petition No.5310
of 2018) before the High Court filed on behalf of the original landowners
stand dismissed.
Present appeal is allowed accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
B Civil Appeal No.511 of 2022
19. In view of the judgment and order passed by this Court in
Civil Appeal No.510 of 2022, the Civil Appeal No. 511 of 2022 stands
partly allowed to the extent of declaring that reservation of the land for
the public purposes for which it was reserved is deemed to have lapsed.
C
No costs.
Nidhi Jain Appeals disposed of.
(Assisted by : Ajay, LCRA)
D
E
F
G
H
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