By Adv. R. S. Agrawal 

 

THROUGH the judgement delivered on May 4, 2023, in the case – Mandakini Ruprao Khangar and Others v. The State of Maharashtra and Others, Justice Atul Chandurkar and Justice M.W. Chandwani, at the Nagpur Bench of the Bombay High Court, have held that the revised development plan published under section 38 of the Maharashtra Regional and Town Planning Act, 1966, being final development plan by virtue of section 31(6) of the Act, the expression ‘Final Development Plan’ used in section 127 has to be read in that context and in that case purchase notice issued under section 127 before expiry of period of 10 years of revised development plan would be premature notice. In this context only, the HC has stated further that indisputably, the purchase notice under section 127 of the Act by the petitioners was issued only three years after the final revised development plan under section 38 came into operation on March 31, 2012 and, therefore, the provisions for reservation made under the revised development plan cannot be invalidated by such notice. Therefore, the present petition has no merit.

The question raised through this petition was as to whether the legal fiction of lapsing of reservation provided under section 127 of the MRTP Act would apply in a case where a purchase notice under section 127 of the Act is given after statutory period of ten years from the final development plan, but before expiry of ten years from the date of the revised development plan. The petitioners are the owners of field Survey Nos. 500, 501 and 502 (Old Survey No. 297) at village Mohpa in Kalmeshwar Tahsil of Nagpur District. In development plan for Mohpa, published on September 20, 1973, the said land was reserved for weekly market and shops. No steps were taken by respondent-Municipal Council, Mohpa to acquire the said land under the provisions of the Act. Through the notification of March 31, 2012, the revised development plan for Mohpa was published under section 38 of the Act. Even in the said revised development plan, reservation on the said land was kept intact. Since no steps were taken for acquisition of the said land, on December 30, 2015, the petitioners issued purchase notice to the respondents under section 127 of the Act. Even after expiry of statutory period of twenty four months provided under section 127 of the Act, No steps have been taken by the said civic body to acquire the said land. Rather, it adopted a resolution resolving that the said land is not required for weekly market and shops, as there is sufficient alternate place. In spite of that no step has been taken by either of the respondents for deletion of the said reservation. Hence this petition was filed for invoking legal fiction of deemed lapsing of reservation under section 127 of the Act.

In reply to the petitioners, the respondent-Chief Officer of the civic body contended that the final development plan was under revision. It was revised under section 38 of the Act and published on March 31, 2012. In revised development plan, the reservation over the said land has been continued for market and shopping complex. The period of ten years after revised development plan came into force, has not expired yet. In view of the provisions of section 127 of the Act, the purchase notice of December 30, 2015 is premature. Initially, the respondent-civic body had passed the resolution not to acquire the said land, the said resolution has been reviewed and now the said municipal council is going to develop the said land as shopping complex. The HC has expressed its view that the Supreme Court’s decision in the case- Prafulla C. Dave and Others v. Municipal Commissioner and Others –(2018) 11 SCC 90, as delivered after distinguishing the case of Bhavnagar University, upholding the verdict of this HC, is squarely

applicable to the present case. The HC has quoted from paragraph 21 of SC judgement as under: “21. Under section 127 of the MRTP Act, reservation, allotment or designation of any land for any public purpose specified in a development plan is deemed to have lapsed and such land is deemed to be released only after notice on the appropriate authority is served calling upon such authority either to acquire the land by agreement or to initiate proceedings for acquisition of the land under the MRTP Act or under the Land Acquisition Act, 1894 and the said authority fails to comply with the demand raised there under. “Such notice can be issued by the owner or any person interested in the land only if the land is not acquired or provisions for acquisition are not initiated within 10 years from the date on which the final development plan had come into force. After service of notice by the land owner or the person interested, a mandatory period of six months has to elapse within which time the authority can still initiate the necessary action. Section 127 of the MRTP Act or any other provision of the said Act does not provide for automatic lapsing of the acquisition, reservation or designation of the land included in any development plan on the expiry of ten years.

“On the contrary, upon expiry of the said period of ten years, the land owner or the person interested is mandated by the statute to take certain positive steps that is to issue/serve a notice and there must occur a corresponding failure on the part of the authority to take requisite steps as demanded therein in order to bring into effect the consequences contemplated by section 127. What would happen in a situation where the land owner or the person interested remains silent and in the meantime and a revised plan under section 38 comes into effect is not very difficult to fathom. Obviously the period of ten years under section 127 has to get a fresh lease of life for another ten years.”

This judgement has made it amply clear that lapsing of the reservation, allotment or designation under section 127 can happen only on the happening of the contingencies mentioned in the said section. If the land owner or the person interested remains inactive or slow, the provisions of the Act dealing with the preparation of the revised plan under section 38 will have full play. The Court has noted that during pendency of the petition on April 16, 2022,, the petitioners have issued another purchase notice after completion of statutory period of ten years to the revised development plan of the civic body. The HC has stated that the petitioners are free to rely upon this subsequent notice, if need arises.