Mrugee Traders And Develpers vs Bhavnagar Area Development Authority & on 9 February, 2016

[Cites 30, Cited by 1]

Gujarat High Court

Mrugee Traders And Develpers vs Bhavnagar Area Development Authority & on 9 February, 2016

Bench: R.M.Chhaya

                 C/SCA/16791/2014                                                  JUDGMENT



                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  SPECIAL CIVIL APPLICATION NO. 16791 of 2014
                                      With
                   SPECIAL CIVIL APPLICATION NO. 16794 of 2014

         FOR APPROVAL AND SIGNATURE:


         HONOURABLE MR.JUSTICE R.M.CHHAYA
         ========================================================
         1   Whether Reporters of Local Papers may be        No
             allowed to see the judgment ?

         2    To be referred to the Reporter or not ?                                         No

         3    Whether their Lordships wish                      to     see      the           No
              fair copy of the judgment ?

         4    Whether this case involves a substantial                                        No
              question of law as to the interpretation of
              the Constitution of India or any order made
              thereunder ?

         ==========================================================
                 MRUGEE TRADERS AND DEVELPERS....Petitioner(s)
                                     Versus
                    BHAVNAGAR AREA DEVELOPMENT AUTHORITY &
                              2....Respondent(s)
         ==========================================================
         Appearance:

         MR YN RAVANI, ADVOCATE FOR THE PETITIONER(S)
         MR HS MUNSHAW, ADVOCATE FOR THE RESPONDENT(S) NO.1
         MR MANAN MEHTA, AGP FOR THE RESPONDENT(S) NO. 2 - 3 IN SCA
         NO.16791 OF 2014
         MS VRUNDA SHAH, AGP FOR THE RESPONDENT(S) NO. 2 - 3 IN SCA
         NO.16794 OF 2014
         ========================================================
                 CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA

                                          Date : 09/02/2016

                                     COMMON ORAL JUDGMENT

1. As the identical questions of law and facts arise in both petitions, the same were heard together and are hereby disposed of by this common judgment.




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                   C/SCA/16791/2014                                                     JUDGMENT

2. By way of these petitions under Article 226 of the Constitution of India, the petitioners in both petitions have prayed for appropriate writ, order or direction in the nature of mandamus directing the respondents authorities to hold and declare that the reservation of village extension for Bhavnagar Area Development Authority (hereinafter referred to as "BADA" for short) for the lands in question as having been lapsed and further direction to allow the petitioners to utilize the lands for any appropriate requirements.

3. In Special Civil Application No.16791 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.182/2/Part of village Adhevada, admeasuring 26912 Sq.Mtrs. It is the case of the petitioner that the petitioner purchased the land in question by registered Sale-Deed dated 19.07.2007. Thereafter, the petitioner converted the use of land from agricultural to non- agricultural for part of the land, which was granted by the competent authority under the Bombay Land Revenue Code vide order dated 13.10.2008 for the land admeasuring 18919 Sq.Mtrs., and remaining part of the land i.e. 7993 Sq.Mtrs., was reserved for BADA for village extension purpose in the final development plan.

4. In Special Civil Application No. 16794 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.15/1 and 15/2 of village Sidsar, admeasuring 0- 30 Gunthas and 2 Acres and 12 Gunthas respectively. It is further case of the petitioner that the petitioner Company purchased the said land by registered Sale-Deed dated 18.06.1999 and thereafter, the petitioner converted the use of the land from agricultural to non-agricultural and the said land in question stands reserved for BADA for the Page 2 of 20 HC-NIC Page 2 of 40 Created On Sat Feb 27 23:23:19 IST 2016 2 of 40 C/SCA/16791/2014 JUDGMENT purpose of "neighborhood reservation".

5. In both the petitions, first development plan of BADA came to be sanctioned on 18.01.1990 and in the said final development plan, the lands in question were reserved for the purpose as observed hereinabove. It is also matter of record that in the revised development plan, which came to be sanctioned on 21.05.2001 by the State Government under the provisions of the Gujarat Town Planning and Urban Development Act, 1976 (hereinafter referred to as "the Act" for short), the lands in question in both the petitions stood reserved for the very said purposes respectively.

6. It is also matter of record that again in the second revised development plan of BADA, which came to be sanctioned under the provisions of the Act, the lands in question stood reserved for the very same purpose. However, till date, the lands are not acquired and are not utilized for the purpose for which the lands in question are so reserved.

7. The petitioner of Special Civil Application No. 16791 of 2014 issued notices through her advocate to BADA, Land Acquisition Officer - Bhavnagar, Chief Town Planner- Gandhinagar and Gram Panchayat, Adhevada on 14.03.2014 and the same is received by the said authorities as is evident from the registered A. D. receipts, which are forming part of the record.

8. Similarly in Special Civil Application No.16794 of 2014, the petitioner issued notices on the same day to the same authorities and the notices also have been received by the respective authorities.




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                   C/SCA/16791/2014                                                   JUDGMENT

9. By the said notices, the respondent authorities have been called upon to acquire the lands in question by following procedure of law within a period of six months from the date of receipt of this notice, failing which it will be presumed that designation of the lands shall be deemed to have lapsed. It also appears from the record that on receipt of the said notice, the office of Chief Town Planner, Gujarat State sent the same to the Chief Executive Officer of BADA. Similarly, the Land Acquisition Officer also informed the Chief Executive of BADA to respond to the said notices. However, the fact remains that BADA neither complied with the same nor has given any reply to the petitioner. As the lands were not acquired even after a period of six months from the date of receipt of this notice, present petitions are filed for the prayers prayed for.

10. In response to the notice issued by this Court, BADA as well as the State Government have filed their affidavits.

11. Heard Mr.Y.N.Ravani, learned counsel for the petitioners in both the petitions, Mr.H.S.Munshaw, learned counsel for respondent No.1-BADA in both the petitions, Mr.Manan Mehta, learned Assistant Government Pleader for respondent Nos.2 and 3 in Special Civil Application No.16791 of 2014 and Ms.Vrunda Shah, learned Assistant Government Pleader for respondent Nos.2 and 3 in Special Civil Application No.16794 of 2014.

12. Learned counsel for the petitioners has taken this Court through the factual matrix arising out of these petitions and has raised the following contentions:-

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(i) That the lands in question have been so reserved for the purpose as mentioned hereinabove since the year 1990 and even after receipt of the notice given by the petitioners as provided under Section 20(2) of the Act, no steps are taken by the respective respondents, more particularly respondent No.1-BADA for whom the reservation is so made in the final development plan and therefore, it was contended that the reservation made in both the cases would stand lapsed.

(ii) That even as per the affidavit filed by BADA before this Court, it is established that the authority i.e. BADA for whom such reservation is made in both the petitions, has resolved to re-reserve the lands in question. The said facts stated by BADA in its affidavit clearly establish that the lands so reserved are no more required by BADA.

(iii) As no steps are taken even after expiry of six months from receipt of the notice as provided under Sections 20(2) of the Act, reservation would automatically lapse and any further continuation of the same in the revised development plan therefore would be nugatory and it is not necessary for the authorities to re-reserve the same.

13. Learned counsel for the petitioners has relied upon the following judgments and has submitted that considering the ratio laid down in the following judgments, both petitions deserve to be allowed as prayed for:-

(i) Hasmukhrai V. Mehta Vs. State of Maharashtra & Ors. [(2015) 3 SCC 154].

(ii) Shrirampur Municipal Council, Shrirampur Vs. Page 5 of 20 HC-NIC Page 5 of 40 Created On Sat Feb 27 23:23:19 IST 2016 5 of 40 C/SCA/16791/2014 JUDGMENT Satyabhamabai Bhimaji Dawkher & Ors. [(2013) 5 SCC 627].

(iii)Balwantbhai Maganlal Chauhan Vs. Municipal Corporation of the City of Surat & Ors. [2001 (3) GLR 1963]

(iv) Bhavnagar University Vs. Palitana Sugar Mill Private Limited [(2003) 2 SCC 111]

(v) Hariben Meghajibhai Jasoliya & Ors. Vs. State of Gujarat & Ors. [unreported judgment passed by this Court in Special Civil Application Nos.1653 & 1654 of 2014].

14. Per contra, learned counsel for respondent No.1- BADA has reiterated the averments made in the affidavit, more particularly as stated in paragraph Nos.6 and 7 of the said affidavit filed by BADA and has contended that the authority has already decided to re-reserve the lands in question and said proposal is already sent to the State Government and therefore, both the petitions are premature and the same deserve to be dismissed.

15. Learned Assistant Government Pleaders for respondent Nos.2 and 3 in both the petitions have also relied upon their affidavits and have contended that as the petitioners have not raised any objection and in fact, they have purchased the lands in question after the lands so reserved, the petitions deserve to be dismissed. Learned AGPs have also relied upon the judgment of the Division Bench of this Court delivered in Letters Patent Appeal No.1484 of 2013 and contended that the petitions deserve to be dismissed.

No other or further submissions are made by learned counsel for the respective parties.

16. Upon considering the record of these petitions and Page 6 of 20 HC-NIC Page 6 of 40 Created On Sat Feb 27 23:23:19 IST 2016 6 of 40 C/SCA/16791/2014 JUDGMENT upon appreciating the contentions raised by learned counsel for the parties, it is an admitted position that the lands in question have been put to reservation in final development plan since 18.01.1990 and have also continued in the first revised development plan dated 21.05.2001 and the second revised development plan dated 13.01.2013. It is an admitted fact that the lands in question have not been acquired till date and the petitioners in both the petitions have sent various notices as provided under Section 20(2) of the Act to the respondent authorities to acquire the lands in question, but even after expiry of six months, no steps are taken by the respondent authority for which the reservation is so made.

17. At this juncture, it would be appropriate to take note of the statement made on oath by BADA in its affidavit dated 25.02.2015, which reads as under:-

"6. The respondent No.1 submits that however, after examining all the aspects, the Board of Bhavnagar Area Development Authority has resolved that the land be de- reserved and placed in the residential zone of Bhavnagar Area Development Authority and copies of the proposal forwarded to the Government of Gujarat in the month of July, 2014 along with the check list as well as Resolution are annexed herewith and marked as Annexure-A. The respondent No.1 submits that the matter is pending at the highest level for appropriate decision as per the provisions of the Act.

7. In view of the above mentioned facts and circumstances, it is crystal clear that the land was rightly reserved at the appropriate time in development plan as well as first and second revised development plans as as now the Authority has resoled and decided to de-reserve the same and a proposal is already sent to the Government of Gujarat and the present Special Civil Application has become infectious, therefore, this Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."

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18. In light of the aforesaid statement, it clearly establishes that BADA does not have any/appropriate infrastructure to develop the lands in question and therefore, it has taken conscious decision to re-reserve the lands in question.

19. In identical facts and situation in the case of SUDA itself, the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra) has clearly held that reservation in final development plan cannot be for more than 10 years and if it is not acquired and/or if no steps for acquisition are taken within a period of six months from the date of receipt of the notice as provided under Section 20(2) of the Act, reservation would stand lapsed.

20. The said judgment i.e. Palitana Sugar Mill (P) Ltd. came to be challenged by the authority as well as the State Government before the Apex Court and in the case of Bhavnagar University (supra), similar action of SUDA is also challenged and the Apex Court has observed thus:-

29. By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of the said Act, town planning is contemplated through preparation of draft development plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries. In terms of such development plan reservation of certain land for public use is also provided. From the relevant provisions of the said Act, as noticed hereinbefore, it is absolutely clear that in terms thereof the State Government is made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of the land.

The State Government while arriving at its conclusion as regards public interest involved in the matter is required to arrive at its satisfaction on objective basis as provided in terms of sub-section (2) of Section 17 to the effect that the lands in respect whereof reservation is proposed to be made can be Page 8 of 20 HC-NIC Page 8 of 40 Created On Sat Feb 27 23:23:19 IST 2016 8 of 40 C/SCA/16791/2014 JUDGMENT acquired for the fulfillment of the object therefor either by agreement or compulsory acquisition within the period specified therein. It has not been disputed before us nor is it necessary to consider in the facts and circumstances of this case as to whether establishment of the educational institutions or universities would be covered by the provisions of sub- section (2) of Section 12 thereof?

30. Sections 20 and 21 of the said Act are required to be read conjunctively with Sections 12 and 17. We may notice that clause (k) of sub-section (2) of Section 12 does not find mention in sub-section (2) of Section 17 as regards proposed reservation for the State and other statutory authorities but clauses (n) and (b) of sub- section (2) of Section 12 are specifically mentioned in Section 20. In Section 20, provisions of clauses (b),

(d), (f), (k) and (o) of sub-section (2) of Section 12 have specifically been mentioned. The High Court has proceeded on the basis that the words 'designation' or 'reservation' are interchangeable for the purpose of the Act. The said finding of the High Court is not in question.

31. Whereas in terms of Sections 12 and 17 of the said Act, the reservation and designation have been provided, sub-section (1) of Section 20 thereof only enables the authorities to acquire the land designated or reserved for the purpose specifically mentioned in clauses (b) and (n) of sub-section (2) of Section 12 as also other clauses specified therefor either by acquisition or agreement or in terms of the provisions of the Land Acquisition Act. Sub-section (1) of Section 20 is merely an enabling provision.

32. Sub-section (2) of Section 20, however, carves out an exception to the exercise of powers by the State as regards acquisition of the land for the purpose of carrying out the development of the area in the manner provided for therein; a bare reading whereof leaves no manner of doubt that in the event the land referred to under sub-section (1) of Section 20 thereof is not acquired or proceedings under the Land Acquisition Act are not commenced and further in the event an owner or a person interested in the land serves a notice in the manner specified therein, certain consequences ensue, namely, the designation of the land shall be deemed to have lapsed. A legal fiction, therefore, has been created in the said provision.

33. The purpose and object of creating a legal fiction in the statute is wellknown. When a legal fiction is created, it must be given its full effect. In East End Dwelling Co. Ltd. v. Finsbury Borough Council, [(1951) 2 All.E.R 587], Lord Asquith, J. stated the law in the following terms:-

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HC-NIC Page 9 of 40 Created On Sat Feb 27 23:23:19 IST 2016 9 of 40 C/SCA/16791/2014 JUDGMENT "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

The said principle has been reiterated by this Court in M. Venugopal v. Divisional Manager, Life Insurance Corporation of India, Machilipatnam, A.P. & Anr. [(1994) 2 SCC 323]. See also Indian Oil Corporation Limited v. Chief Inspector of Factories & Ors.etc., [(1998) 5 SCC 738], Voltas Limited, Bombay v. Union of India & Ors.,[(1995) Supp. 2 SCC 498], Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. & Ors. [(1995) 1 SCC 537] and G. Viswanathan etc. v. Hon'ble Speaker, Tamil Nadu Legislative Assembly, Madras & Anr. [(1996) 2 SCC 353].

34. The relevant provisions of the Act are absolutely clear, unambiguous and implicit. A plain meaning of the said provisions, in our considered view, would lead to only one conclusion, namely, that in the event a notice is issued by the owner of the land or other person interested therein asking the authority to acquire the land upon expiry of the period specified therein viz. ten years from the date of issuance of final development plan and in the event pursuant to or in furtherance thereof no action for acquisition thereof is taken, the designation shall lapse.

35. This Court in Municipal Corporation of Greater Bombay's case (supra), in no uncertain terms while construing the provisions of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 held the period of ten years as reasonable in the following words:-

"8. While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a Page 10 of 20 HC-NIC Page 10 of 40 Created On Sat Feb 27 23:23:19 IST 2016 10 of 40 C/SCA/16791/2014 JUDGMENT fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual."

It was observed that :

"The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting subsection (4) of Section 126 that if a declaration is not made within the period referred to in sub-section (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough., The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed."

It is true that Section 21 of the Act imposes a statutory obligation on the part of the State and the appropriate authorities to revise the development plan and for the said purpose Sections 9 to 20 'so far as may be' would be applicable thereto, but thereby the rights of the owners in terms of sub-section (2) of Section 20 are not taken away.

36. The question, however, is as to whether only Page 11 of 20 HC-NIC Page 11 of 40 Created On Sat Feb 27 23:23:19 IST 2016 11 of 40 C/SCA/16791/2014 JUDGMENT because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.

37. The said words indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that what is given by one hand should be taken away by the other.

38. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of Section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a land-owner under Section 22 of getting the land defreezed. In the event the submission of the learned Solicitor General is accepted the same would completely render the provisions of Section 20(2) otiose and redundant.

39. Sub-section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub-section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under sub-section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a Page 12 of 20 HC-NIC Page 12 of 40 Created On Sat Feb 27 23:23:19 IST 2016 12 of 40 C/SCA/16791/2014 JUDGMENT revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation."

21. The Apex Court in the case of Bhikhubhai Vithhalbhai Patel and Ors., (supra) has observed thus:-

"4. The appellants challenged re-reservation of the lands for South Gujarat University on various grounds which ultimately culminated in the judgment of this court in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others. This court in clear and categorical terms laid down that Section 21 of the Act may impose statutory obligations on the part of the State and the appropriate authority to revise the development plan but under the grab of exercising the power to revise the development plan #the substantial right conferred upon the owner of the land or the person interested therein# cannot be taken away. It is observed :

# Para 38. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the land defreezed.

13. The appellants filed writ petitions in the High Court of Gujarat challenging the action re-reserving the land in the draft revised development plan for the same purpose namely education complex of South Gujarat University. The lis ultimately culminated in the judgment of this Court in Bhavnagar University (supra).

This court held that :

(i) Section 21 of the Act does not and cannot mean that substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other.

(ii) It is further held that the statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.

(iii) It is further held that inspite of statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, the Land Acquisition Act in the event an Page 13 of 20 HC-NIC Page 13 of 40 Created On Sat Feb 27 23:23:19 IST 2016 13 of 40 C/SCA/16791/2014 JUDGMENT exigency arises therefore.

14. The State Government unmindful of and undaunted by the judgment of this court proposed to modify the draft revised development plan already submitted by the authority in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a) of sub-

section (1) of Section 17 of the Act by designating the land for educational use under Section 12(2)(o) of the Act. The Government having considered the objections issued final notification dated 28th September, 2004 confirming modifications proposed in the preliminary notification."

The Apex Court in the case of Chairman, Indore Vikas Pradhikaran (supra) and Hasmukhrai V. Mehta Vs. State of Maharashtra & Ors., [(2015) 3 SCC 154] has taken a similar view.

22. Recently, the Apex Court while considering similar case under Section 127 of the MRTP Act, which is almost para materia to Section 20 of the Act, (Civil Appeal No.1086 of 2015) in the case of Godrej & Boyce Manufacturing Co. Ltd. Vs. State of Maharashtra & Ors., [AIR 2014 SC 1446] has observed thus:-

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

"127. Lapsing of reservations-If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under Page 14 of 20 HC-NIC Page 14 of 40 Created On Sat Feb 27 23:23:19 IST 2016 14 of 40 C/SCA/16791/2014 JUDGMENT the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its 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."

16. It is also an undisputed fact that after 10 years, notice dated 4.9.2002 served by the appellant under Section 127 of the MRTP Act upon the respondent No.1 stating that if, the reserved land was needed for the notified purpose, Railway department may acquire the same by adopting acquisition proceedings, but if the same is not acquired, the clarification to that effect be issued. Thereafter, on 3.3.2003 the period of 6 months as prescribed under the provision of Section 127 of the MRTP Act, after issuance of the above notice by the appellant and served on the respondent No.1, was also lapsed long back. Therefore, the reservation of the land in favour of the Railway was deemed to be released under the above said provision of the MRTP Act. The respondent No. 2- Ministry of Railways informed the Urban Development Department of the State Government on 1.11.2004 stating that there was no proposal for acquisition of the land in the Railways in the near future, is evident from the undisputed fact of the correspondence made between the Ministry of Railways and the Urban Development Department of the State Government, which would clearly go to show that the land reserved even after 10 years and on expiry of service of notice of 6 months there was no intention on the part of the State Government to acquire the reserved land for the purpose reserved in favour of the Railways department to form the Railway tracks between "Thane and Kurla". In that view of the matter, the land reserved for the purpose under Section 127 of the MRTP Act, is lapsed and the appellant is entitled for developing the land as it likes. The State Government instead of clarifying to the notice issued by the appellant, has proceeded further to initiate proceedings under Section 37 of the MRTP Act, proposing the modification in the Development Plan by deleting Railway reservation and adding reservation for Development Plan Road. Section 37(1) of the MRTP Act, which deals with modification of Final Development Plan reads thus:-

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HC-NIC Page 15 of 40 Created On Sat Feb 27 23:23:19 IST 2016 15 of 40 C/SCA/16791/2014 JUDGMENT "37.Modification of final Development Plan - (1) Where a modification of any part of or any proposal made in, a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. 1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government, shall issue the notice and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority."

By a careful reading of the provisions of Sections 127 and 37(1) of the MRTP Act, which are extracted as above abundantly make it clear that the State Government is not empowered to delete the reservation of the land involved in this case from Railway use and to modify the same for Development Plan Road in the Development Plan after expiry of 10 years and 6 months notice period was over as the appellant has acquired the valuable statutory right upon the land and the reservation of the same for the proposed formation of Railway track was lapsed long back. Further the respondent No. 2 vide its letter dated 1.11.2004 has stated that there is no proposal for acquisition of land for the purpose of which it was reserved.

Section 127 of the MRTP Act, which fell for consideration before the three Judge Bench of this Court in the case of Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors. wherein the contention of the appellant that the majority judgment in the case of Girnar Traders (2) v. State of Maharashtra3 need to be considered by larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of Greater Bombay v. Hakimwadi Tenants' Asson.4 case, was rejected. The Court opined that the same is not contrary to Section 127 of the MRTP Act and further held that there is no conflict between the judgments of the two-Judge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment in Girnar Traders (2) (supra) case. Further, Page 16 of 20 HC-NIC Page 16 of 40 Created On Sat Feb 27 23:23:19 IST 2016 16 of 40 C/SCA/16791/2014 JUDGMENT the three Judge Bench judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45 and 46 supported the observation of Constitution Bench in Girnar Traders (3) v. State of Maharashtra5 case relating to Section 127 of the MRTP Act, which read thus:-

"45. In our view, the observations contained in para 133 of Girnar Traders (3) unequivocally support the majority judgment in Girnar Traders (2).

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

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

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

In view of the above said statement of law declared by this Court in the cases referred to supra, after adverting to the judgment of majority view in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal Council, Shrirampur (supra), wherein it is held that the Girnar Traders (2)(supra) case is not Page 17 of 20 HC-NIC Page 17 of 40 Created On Sat Feb 27 23:23:19 IST 2016 17 of 40 C/SCA/16791/2014 JUDGMENT conflicting with the Hakimwadi Tenants' Asson. Case (supra), the statement of law laid down in the above referred cases are aptly applicable to the fact situation. Therefore, we have to hold that the impugned notification is bad in law and liable to quashed. The High Court has not examined the impugned notification from the view point of Section 127 of the MRTP Act and interpretation of the above said provision made in the case of Girnar Traders (2) (supra), therefore, giving liberty to the appellant by the High Court to file objections to the proposed notification is futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved has not been utilized for that purpose and a valid statutory right is acquired by the land owner/interested person after expiry of 10 years from the date of reservation made in the Development Plan and 6 months notice period is also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Sections 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefit of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the Development Plan from deleting for the purpose of Railways and adding to the Development Plan for the formation of Development Plan Road after lapse of 10 years and expiry of 6 months notice served upon the State Government.

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

18. The appeal is allowed. The impugned order is set aside and consequently Rule issued. The impugned notification dated 5.8.2008 is also quashed as the period of 10 years from the date of reservation in the Development Plan and 6 months notice served by the appellant on the respondent No. 1 is also over, the reservation of the land is lapsed. No costs."

23. The Division Bench of this Court following the ratio laid down in the case of Bhikhubhai Vithhalbhai Patel and Ors. (supra), has taken similar view in Letters Patent Appeal No.112 of 2009 in Special Civil Application No.13731 of 2005.

24. Following and applying the ratio laid down in the Page 18 of 20 HC-NIC Page 18 of 40 Created On Sat Feb 27 23:23:19 IST 2016 18 of 40 C/SCA/16791/2014 JUDGMENT case of Bhavnagar University (supra), the Division Bench of this Court in Letters Patent Appeal No.1244 of 2015 has observed thus:-

"9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re-reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re-reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re-reservation. Hence, the said contention cannot be accepted.

25. In light of the binding decisions of the Apex Court as well as of this Court, the contention is raised by learned counsel for BADA that the appropriate authority has already initiated proceedings to re-reserve the lands in question and therefore, the petitions are premature and deserve to be dismissed.

26. In light of the decision of the Apex Court in the case of Bhavnagar University (supra), as reservation has lapsed, action of re-reserving the land for the same purpose in the second revised development plan that too after notice under Section 20(2) of the Act itself, is bad and illegal. The lands of citizens cannot be freezed eternally and even though the law is settled, the petitioners cannot be asked to wait when re-reservation itself would be bad.

27. As held by the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra), the words "reservation" and "designation" are inter-changeable and Page 19 of 20 HC-NIC Page 19 of 40 Created On Sat Feb 27 23:23:19 IST 2016

19 of 40 C/SCA/16791/2014 JUDGMENT therefore, considering the facts and circumstances in both the petitions, failure to acquire the lands within stipulated time would render reservation nugatory and it lapses as per the provisions of Section 20(2) of the Act.

28. In both the petitions, reservation made in the development plan has lapsed as respondent No.1- Authority has not initiated any steps to acquire the lands in question as provided under Section 20(2) of the Act even after period of six months from the date of receipt of the notice. It is an admitted position that in fact, the respondent authority does not require the land at all and has prayed for de-reservation. However, considering the judgments of the Apex Court as well as the Division Bench of this Court as observed hereinabove, reservation lapses automatically for the reasons which are enumerated hereinabove.

Resultantly, the petitions are allowed. Reservation in the lands in question in both petitions is hereby declared to have been lapsed. Rest of the prayers prayed for in these petitions are not necessary to be dealt with by this Court. Rule is made absolutely to the aforesaid extent in both petitions. No costs.

Sd/-

                                                                                     (R.M.CHHAYA, J.)

         Suchit




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                  C/SCA/16791/2014                                                  JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 16791 of 2014 With SPECIAL CIVIL APPLICATION NO. 16794 of 2014 FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.M.CHHAYA ======================================================== 1 Whether Reporters of Local Papers may be No allowed to see the judgment ?

2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the No fair copy of the judgment ?

4 Whether this case involves a substantial No question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== MRUGEE TRADERS AND DEVELPERS....Petitioner(s) Versus BHAVNAGAR AREA DEVELOPMENT AUTHORITY &

2....Respondent(s) ========================================================== Appearance:

MR YN RAVANI, ADVOCATE FOR THE PETITIONER(S) MR HS MUNSHAW, ADVOCATE FOR THE RESPONDENT(S) NO.1 MR MANAN MEHTA, AGP FOR THE RESPONDENT(S) NO. 2 - 3 IN SCA NO.16791 OF 2014 MS VRUNDA SHAH, AGP FOR THE RESPONDENT(S) NO. 2 - 3 IN SCA NO.16794 OF 2014 ======================================================== CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 10/02/2016 COMMON ORAL JUDGMENT

1. As the identical questions of law and facts arise in both petitions, the same were heard together and are hereby disposed of by this common judgment.




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2. By way of these petitions under Article 226 of the Constitution of India, the petitioners in both petitions have prayed for appropriate writ, order or direction in the nature of mandamus directing the respondents authorities to hold and declare that the reservation of village extension for Bhavnagar Area Development Authority (hereinafter referred to as "BADA" for short) for the lands in question as having been lapsed and further direction to allow the petitioners to utilize the lands for any appropriate requirements.

3. In Special Civil Application No.16791 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.182/2/Part of village Adhevada, admeasuring 26912 Sq.Mtrs. It is the case of the petitioner that the petitioner purchased the land in question by registered Sale-Deed dated 19.07.2007. Thereafter, the petitioner converted the use of land from agricultural to non-

agricultural for part of the land, which was granted by the competent authority under the Bombay Land Revenue Code vide order dated 13.10.2008 for the land admeasuring 18919 Sq.Mtrs., and remaining part of the land i.e. 7993 Sq.Mtrs., was reserved for BADA for village extension purpose in the final development plan.

4. In Special Civil Application No. 16794 of 2014, the petitioner is the owner and occupier of the land bearing Survey No.15/1 and 15/2 of village Sidsar, admeasuring 0- 30 Gunthas and 2 Acres and 12 Gunthas respectively. It is further case of the petitioner that the petitioner Company purchased the said land by registered Sale-Deed dated 18.06.1999 and thereafter, the petitioner converted the use of the land from agricultural to non-agricultural and the said land in question stands reserved for BADA for the Page 2 of 20 HC-NIC Page 22 of 40 Created On Sat Feb 27 23:23:19 IST 2016 22 of 40 C/SCA/16791/2014 JUDGMENT purpose of "neighborhood reservation".




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                   C/SCA/16791/2014                                                   JUDGMENT

10. In response to the notice issued by this Court, BADA as well as the State Government have filed their affidavits.

12. Learned counsel for the petitioners has taken this Court through the factual matrix arising out of these petitions and has raised the following contentions:-

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(i) That the lands in question have been so reserved for the purpose as mentioned hereinabove since the year 1990 and even after receipt of the notice given by the petitioners as provided under Section 20(2) of the Act, no steps are taken by the respective respondents, more particularly respondent No.1-BADA for whom the reservation is so made in the final development plan and therefore, it was contended that the reservation made in both the cases would stand lapsed.

(i) Hasmukhrai V. Mehta Vs. State of Maharashtra & Ors. [(2015) 3 SCC 154].

(ii) Shrirampur Municipal Council, Shrirampur Vs. Page 5 of 20 HC-NIC Page 25 of 40 Created On Sat Feb 27 23:23:19 IST 2016 25 of 40 C/SCA/16791/2014 JUDGMENT Satyabhamabai Bhimaji Dawkher & Ors. [(2013) 5 SCC 627].

(iii)Balwantbhai Maganlal Chauhan Vs. Municipal Corporation of the City of Surat & Ors. [2001 (3) GLR 1963]

(iv) Bhavnagar University Vs. Palitana Sugar Mill Private Limited [(2003) 2 SCC 111]

(v) Hariben Meghajibhai Jasoliya & Ors. Vs. State of Gujarat & Ors. [unreported judgment passed by this Court in Special Civil Application Nos.1653 & 1654 of 2014].

No other or further submissions are made by learned counsel for the respective parties.

16. Upon considering the record of these petitions and Page 6 of 20 HC-NIC Page 26 of 40 Created On Sat Feb 27 23:23:19 IST 2016 26 of 40 C/SCA/16791/2014 JUDGMENT upon appreciating the contentions raised by learned counsel for the parties, it is an admitted position that the lands in question have been put to reservation in final development plan since 18.01.1990 and have also continued in the first revised development plan dated 21.05.2001 and the second revised development plan dated 13.01.2013. It is an admitted fact that the lands in question have not been acquired till date and the petitioners in both the petitions have sent various notices as provided under Section 20(2) of the Act to the respondent authorities to acquire the lands in question, but even after expiry of six months, no steps are taken by the respondent authority for which the reservation is so made.

17. At this juncture, it would be appropriate to take note of the statement made on oath by BADA in its affidavit dated 25.02.2015, which reads as under:-

"6. The respondent No.1 submits that however, after examining all the aspects, the Board of Bhavnagar Area Development Authority has resolved that the land be de- reserved and placed in the residential zone of Bhavnagar Area Development Authority and copies of the proposal forwarded to the Government of Gujarat in the month of July, 2014 along with the check list as well as Resolution are annexed herewith and marked as Annexure-A. The respondent No.1 submits that the matter is pending at the highest level for appropriate decision as per the provisions of the Act.

7. In view of the above mentioned facts and circumstances, it is crystal clear that the land was rightly reserved at the appropriate time in development plan as well as first and second revised development plans as as now the Authority has resoled and decided to de-reserve the same and a proposal is already sent to the Government of Gujarat and the present Special Civil Application has become infectious, therefore, this Hon'ble Court is humbly prayed not to grant any interim relief and reject the present Special Civil Application in limine with cost in the interest of justice."

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29. By reason of the provision of the said Act, a reasonable restriction, has been imposed upon the owner on the user of his property. In terms of Section 12 of the said Act, town planning is contemplated through preparation of draft development plan which contains not only proposals for designating certain area for residential, industrial, commercial, agricultural or recreational purposes but also for the purposes for maintaining environment and ecological balance by setting up zoological gardens, green belts, natural reserves and sanctuaries. In terms of such development plan reservation of certain land for public use is also provided. From the relevant provisions of the said Act, as noticed hereinbefore, it is absolutely clear that in terms thereof the State Government is made the ultimate authority to publish a development plan, inter alia, providing for designation or reservation of the land.

The State Government while arriving at its conclusion as regards public interest involved in the matter is required to arrive at its satisfaction on objective basis as provided in terms of sub-section (2) of Section 17 to the effect that the lands in respect whereof reservation is proposed to be made can be Page 8 of 20 HC-NIC Page 28 of 40 Created On Sat Feb 27 23:23:19 IST 2016 28 of 40 C/SCA/16791/2014 JUDGMENT acquired for the fulfillment of the object therefor either by agreement or compulsory acquisition within the period specified therein. It has not been disputed before us nor is it necessary to consider in the facts and circumstances of this case as to whether establishment of the educational institutions or universities would be covered by the provisions of sub- section (2) of Section 12 thereof?

Page 9 of 20

HC-NIC Page 29 of 40 Created On Sat Feb 27 23:23:19 IST 2016 29 of 40 C/SCA/16791/2014 JUDGMENT "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

"8. While the contention of learned counsel appearing for the appellant that the words 'six months from the date of service of such notice' in Section 127 of the Act were not susceptible of a literal construction, must be accepted, it must be borne in mind that the period of six months provided by Section 127 upon the expiry of which the reservation of the land under a Development Plan lapses, is a valuable safeguard to the citizen against arbitrary and irrational executive action. Section 127 of the Act is a Page 10 of 20 HC-NIC Page 30 of 40 Created On Sat Feb 27 23:23:19 IST 2016 30 of 40 C/SCA/16791/2014 JUDGMENT fetter upon the power of eminent domain. By enacting Section 127 the legislature has struck a balance between the competing claims of the interests of the general public as regards the rights of an individual."

It was observed that :

"The Act lays down the principles of fixation by providing first, by the proviso to Section 126(2) that no such declaration under sub-section (2) shall be made after the expiry of three years from the date of publication of the draft regional plan, development plan or any other plan, secondly, by enacting subsection (4) of Section 126 that if a declaration is not made within the period referred to in sub-section (2), the State Government may make a fresh declaration but, in that event, the market value of the land shall be the market value at the date of the declaration under Section 6 and not the market value at the date of the notification under Section 4, and thirdly, by Section 127 that if any land reserved, allotted or designated for any purpose in any development plan is not acquired by agreement within 10 years from the date on which a final regional plan or development plan comes into force or if proceedings for the acquisition of such land under the Land Acquisition Act are not commenced within such period, such land shall be deemed to be released from such reservation, allotment or designation and become available to the owner for the purpose of development on the failure of the Appropriate Authority to initiate any steps for its acquisition within a period of six months from the date of service of a notice by the owner or any person interested in the land. It cannot be doubted that a period of 10 years is long enough., The Development or the Planning Authority must take recourse to acquisition with some amount of promptitude in order that the compensation paid to the expropriated owner bears a just relation to the real value of the land as otherwise, the compensation paid for the acquisition would be wholly illusory. Such fetter on statutory powers is in the interest of the general public and the conditions subject to which they can be exercised must be strictly followed."

36. The question, however, is as to whether only Page 11 of 20 HC-NIC Page 31 of 40 Created On Sat Feb 27 23:23:19 IST 2016 31 of 40 C/SCA/16791/2014 JUDGMENT because the provision of Section 20 has been referred to therein; would it mean that thereby the Legislature contemplated that the time of ten years specified by the Legislature for the purpose of acquisition of the land would get automatically extended? The answer to the said question must be rendered in the negative. Following the principle of interpretation that all words must be given its full effect, we must also give full effect to the words "so far as may be" applied to such revision.

39. Sub-section (1) of Section 20, as noticed hereinbefore, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub-section (1) of Section 20 but it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under Section 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under sub-section (1) of Section 20 does not become ipso facto applicable in the event of issuance of a Page 12 of 20 HC-NIC Page 32 of 40 Created On Sat Feb 27 23:23:19 IST 2016 32 of 40 C/SCA/16791/2014 JUDGMENT revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation."

21. The Apex Court in the case of Bhikhubhai Vithhalbhai Patel and Ors., (supra) has observed thus:-

"4. The appellants challenged re-reservation of the lands for South Gujarat University on various grounds which ultimately culminated in the judgment of this court in Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. and others. This court in clear and categorical terms laid down that Section 21 of the Act may impose statutory obligations on the part of the State and the appropriate authority to revise the development plan but under the grab of exercising the power to revise the development plan #the substantial right conferred upon the owner of the land or the person interested therein# cannot be taken away. It is observed :

# Para 38. Section 21 does not envisage that despite the fact that in terms of sub-section (2) of section 20, the designation of land shall lapse, the same, only because a draft revised plan is made, would automatically give rise to revival thereof. Section 20 does not manifest a legislative intent to curtail or take away the right acquired by a landowner under Section 22 of getting the land defreezed.

13. The appellants filed writ petitions in the High Court of Gujarat challenging the action re-reserving the land in the draft revised development plan for the same purpose namely education complex of South Gujarat University. The lis ultimately culminated in the judgment of this Court in Bhavnagar University (supra).

This court held that :

(i) Section 21 of the Act does not and cannot mean that substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the legislature that what is given by one hand should be taken away by the other.

(ii) It is further held that the statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all. The State and other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.

(iii) It is further held that inspite of statutory lapse of designation of the land, the State is not denuded of its power of eminent domain under the general law, namely, the Land Acquisition Act in the event an Page 13 of 20 HC-NIC Page 33 of 40 Created On Sat Feb 27 23:23:19 IST 2016 33 of 40 C/SCA/16791/2014 JUDGMENT exigency arises therefore.

14. The State Government unmindful of and undaunted by the judgment of this court proposed to modify the draft revised development plan already submitted by the authority in purported exercise of the power conferred by the proviso to sub-clause (ii) of clause (a) of sub- section (1) of Section 17 of the Act by designating the land for educational use under Section 12(2)(o) of the Act. The Government having considered the objections issued final notification dated 28th September, 2004 confirming modifications proposed in the preliminary notification."

The Apex Court in the case of Chairman, Indore Vikas Pradhikaran (supra) and Hasmukhrai V. Mehta Vs. State of Maharashtra & Ors., [(2015) 3 SCC 154] has taken a similar view.

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

"127. Lapsing of reservations-If any land reserved, allotted or designated for any purpose specified in any plan under this Act is not acquired by agreement within ten years from the date on which a final Regional plan, or final Development plan comes into force or if proceedings for the acquisition of such land under this Act or under Page 14 of 20 HC-NIC Page 34 of 40 Created On Sat Feb 27 23:23:19 IST 2016 34 of 40 C/SCA/16791/2014 JUDGMENT the Land Acquisition Act, 1894, are not commenced within such period, the owner or any person interested in the land may serve notice on the Planning Authority, Development Authority or as the case may be, Appropriate Authority to that effect; and if within six months from the date of the service of such notice, the land is not acquired or no steps as aforesaid are commenced for its 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."

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HC-NIC Page 35 of 40 Created On Sat Feb 27 23:23:19 IST 2016 35 of 40 C/SCA/16791/2014 JUDGMENT "37.Modification of final Development Plan - (1) Where a modification of any part of or any proposal made in, a final Development Plan is of such a nature that it will not change the character of such Development Plan, the Planning Authority may, or when so directed by the State Government shall, within sixty days from the date of such direction, publish a notice in the Official Gazette and in such other manner as may be determined by it inviting objections and suggestions from any person with respect to the proposed modification not later than one month from the date of such notice; and shall also serve notice on all persons affected by the proposed modification and after giving a hearing to any such persons, submit the proposed modification (with amendments, if any), to the State Government for sanction. 1A) If the Planning Authority fails to issue the notice as directed by the State Government, the State Government, shall issue the notice and thereupon, the provisions of sub-section (1) shall apply as they apply in relation to a notice to be published by a Planning Authority."

Section 127 of the MRTP Act, which fell for consideration before the three Judge Bench of this Court in the case of Shrirampur Municipal Council, Shrirampur v. Satyabhamabai Bhimaji Dawkher & Ors. wherein the contention of the appellant that the majority judgment in the case of Girnar Traders (2) v. State of Maharashtra3 need to be considered by larger Bench as the same is contrary to Section 127 and Municipal Corpn. Of Greater Bombay v. Hakimwadi Tenants' Asson.4 case, was rejected. The Court opined that the same is not contrary to Section 127 of the MRTP Act and further held that there is no conflict between the judgments of the two-Judge Bench in Hakimwadi Tenants' Asson. (supra) and the majority judgment in Girnar Traders (2) (supra) case. Further, Page 16 of 20 HC-NIC Page 36 of 40 Created On Sat Feb 27 23:23:19 IST 2016 36 of 40 C/SCA/16791/2014 JUDGMENT the three Judge Bench judgment in Shrirampur Municipal Council, Shrirampur (supra) at paras 45 and 46 supported the observation of Constitution Bench in Girnar Traders (3) v. State of Maharashtra5 case relating to Section 127 of the MRTP Act, which read thus:-

"45. In our view, the observations contained in para 133 of Girnar Traders (3) unequivocally support the majority judgment in Girnar Traders (2).

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

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

In view of the above said statement of law declared by this Court in the cases referred to supra, after adverting to the judgment of majority view in Girnar Traders (2) case (supra) is accepted in Shrirampur Municipal Council, Shrirampur (supra), wherein it is held that the Girnar Traders (2)(supra) case is not Page 17 of 20 HC-NIC Page 37 of 40 Created On Sat Feb 27 23:23:19 IST 2016 37 of 40 C/SCA/16791/2014 JUDGMENT conflicting with the Hakimwadi Tenants' Asson. Case (supra), the statement of law laid down in the above referred cases are aptly applicable to the fact situation. Therefore, we have to hold that the impugned notification is bad in law and liable to quashed. The High Court has not examined the impugned notification from the view point of Section 127 of the MRTP Act and interpretation of the above said provision made in the case of Girnar Traders (2) (supra), therefore, giving liberty to the appellant by the High Court to file objections to the proposed notification is futile exercise on the part of the appellant for the reason that the State Government, once the purpose the land was reserved has not been utilized for that purpose and a valid statutory right is acquired by the land owner/interested person after expiry of 10 years from the date of reservation made in the Development Plan and 6 months notice period is also expired, the State Government has not commenced the proceedings to acquire the land by following the procedure as provided under Sections 4 and 6 of the repealed Land Acquisition Act, 1894. Therefore, the land which was reserved for the above purpose is lapsed and it enures to the benefit of the appellant herein. Therefore, it is not open for the State Government to issue the impugned notification proposing to modify the Development Plan from deleting for the purpose of Railways and adding to the Development Plan for the formation of Development Plan Road after lapse of 10 years and expiry of 6 months notice served upon the State Government.

24. Following and applying the ratio laid down in the Page 18 of 20 HC-NIC Page 38 of 40 Created On Sat Feb 27 23:23:19 IST 2016 38 of 40 C/SCA/16791/2014 JUDGMENT case of Bhavnagar University (supra), the Division Bench of this Court in Letters Patent Appeal No.1244 of 2015 has observed thus:-

"9. The attempt made to contend that the petitions could be said as infructuous on the date when the same were filed in the year 2014 because of the new draft development plan or revised draft development plan were published on 17.12.2013, in our view, cannot be accepted for two reasons; first is that the deeming fiction for lapsing of the reservation is not to adversely affect even if the land is re-reserved under Section 21 of the Act and the second is that if the deeming fiction has already come into operation and the reservation has lapsed and the re-reservation is not to dilute the effect of lapsing of the reservation, it cannot be said that the right of the holder of the land would cease in the property. On the contrary, the right so revived on account of the lapsing of the reservation would continue even after the re-reservation. Hence, the said contention cannot be accepted.

25. In light of the binding decisions of the Apex Court as well as of this Court, the contention is raised by learned counsel for BADA that the appropriate authority has already initiated proceedings to re-reserve the lands in question and therefore, the petitions are premature and deserve to be dismissed.

26. In light of the decision of the Apex Court in the case of Bhavnagar University (supra), as reservation has lapsed, action of re-reserving the land for the same purpose in the second revised development plan that too after notice under Section 20(2) of the Act itself, is bad and illegal. The lands of citizens cannot be freezed eternally and even though the law is settled, the petitioners cannot be asked to wait when re-reservation itself would be bad.

27. As held by the Division Bench of this Court in the case of Palitana Sugar Mill (P) Ltd. (supra), the words "reservation" and "designation" are inter-changeable and Page 19 of 20 HC-NIC Page 39 of 40 Created On Sat Feb 27 23:23:19 IST 2016

39 of 40 C/SCA/16791/2014 JUDGMENT therefore, considering the facts and circumstances in both the petitions, failure to acquire the lands within stipulated time would render reservation nugatory and it lapses as per the provisions of Section 20(2) of the Act.

Sd/-

(R.M.CHHAYA, J.) Suchit Page 20 of 20 HC-NIC Page 40 of 40 Created On Sat Feb 27 23:23:19 IST 2016 40 of 40

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