1-WP-5798-2023-(C).odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 5798 OF 2023

1. Mr. Nilesh Prakashrao More,

Age : 37 years, Occ. Agriculturist,

Indian inhabitant,

Residing at “Shri Swami Samarth”

330, Gajanan chowk Phaltan,

District : Satara, Pin : 415523 ….Petitioner

Versus

1. State of Maharashtra

Through its Urban Development

Department,

[Summons to be served on the Learned

Government Pleader appearing for

the State of Maharashtra under Order

XXVII,

Rule 4, of the Code of Civil

Procedure, 1908].

2. Regional Transport Office (RTO)

213, E Ward, Tarabai Park, Warna

Colony, Kolhapur District, Pin – 416003

[Summons to be served on the Learned

Government Pleader appearing for

the State of Maharashtra under Order

XXVII,

Rule 4, of the Code of Civil

Procedure, 1908].

3. Chief Executive Officer of the

Phaltan Nagar Parishad,

Phaltan, District : Satara.

[Summons to be served on the Learned

Government Pleader appearing for

the State of Maharashtra under Order

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SUNNY

ANKUSHRAO

THOTE

Digitally signed

by SUNNY

ANKUSHRAO

THOTE

Date:

2026.03.27

20:50:53

+0530

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XXVII,

Rule 4, of the Code of Civil

Procedure, 1908]

4. District Collector Satara,

Satara.

[Summons to be served on the Learned

Government Pleader appearing for

the State of Maharashtra under Order

XXVII,

Rule 4, of the Code of Civil

Procedure, 1908] ….Respondents

****

Mr. Yatin Malvankar, Advocate for the Petitioner.

Mr. Milind Sathe, Advocate General a/w Smt. Neha Bhide, Government

Pleader, Mr. Jay Sanklecha, ‘B’ Panel Counsel, Smt. R.M. Shinde, AGP for

the Respondent/State.

Mr. Vishwanath Talkute, Advocate for Respondent No.3.

****

CORAM : RAVINDRA V. GHUGE,

SANDEEP V. MARNE &

ABHAY J. MANTRI, JJ.

RESERVED ON : 5

th

MARCH, 2026

PRONOUNCED ON : 27

th

MARCH, 2026

JUDGMENT (PER : RAVINDRA V. GHUGE, J.)

1. Rule. Rule made returnable forthwith and heard finally by

consent of the parties.

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2. By an order dated 29

th

July 2024, passed by the Division

Bench of this Court, while hearing Writ Petition No.5180 of 2022, the

Registry was directed to place that Petition before the Hon’ble The Chief

Justice for directions under Rule 8 of Chapter I, of the Bombay High Court

Appellate Side Rules, 1960. For ready reference, we deem it appropriate to

reproduce the said order here under :

“

1.Heard learned counsel for the parties.

2.The development plan for Pune was initially finalised

on 8 July 1966, reserving the Petitioner’s property for the

public purpose of the Primary School. After following the

necessary procedures, this plan was revised effective 5

January 1987, maintaining the same reservation.

3.On 28th March 2013, a notice was issued under

Section 26(1) of the Maharashtra Regional and Town

Planning Act, 1966 (for short, “MRTP Act”) proposing to

revise the above plan. However, before the revision could

be finalised, the Petitioners issued a notice on 23rd May

2015, which the Planning Authority received on 26th May

2015 under Section 127(1) of the MRTP Act, urging the

purchase of the said property.

4.Under the amendment to the MRTP Act, the 12-

month period prescribed in Section 127(1) for taking steps

to purchase was enhanced to 24 months, effective from 29

August 2015. There is no dispute that this 24-month notice

period under the amendment would govern the present case.

5.The revisions to the development plan were finalised

on 5 January 2017, before the expiry of the 24-month notice

period, which was 22 May 2017.

6.The Petitioner’s case is that the notice dated 23rd

May 2015, issued by the Petitioner, neither lapses nor is

rendered ineffective on account of the revision of the

development plan effective from 5th January 2017. The

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Petitioner contends that on the expiry of 24 months, i.e. on

22 May 2017, the reservation lapses because, in the

meantime, the Planning Authority has failed to take steps to

acquire the said property as contemplated under the scheme

of Sections 126 and 127 of the MRTP Act.

7.At least prima facie, the petitioner’s contentions find

support in the decisions of the Coordinate Division Bench

in the case of Santu Sukhdeo Jaibhave & Ors. Vs. Nashik

Municipal Corporation & Ors.

1

and Sadashiv Tryambak

Rajebahadur & Ors. Vs. State of Maharashtra & Ors.

2

In

similar facts, these decisions have held that the reservation

lapses if no steps are taken by the planning authority to

acquire the property.

8.However, Mr. Kulkarni, learned counsel for the Pune

Municipal Corporation (PMC), which is the Planning

Authority, relied upon the decisions of yet another

Coordinate Bench in the case of Salim Nizam Sanadi & Ors.

Vs Municipal Corporation, Sangli, Miraj and Kupwad City &

Ors.

3

and Shri. Amuksidha Shrikant Majge and Anr. vs.

Commissioner, Sangli, Miraj and Kupwad Municipal

Corporation, Sangli and Ors.

4

to contend that once the

revisions in the development plan are finalised, subsequent

reservation of land by the revised Development Plan would

be the fresh starting point for the period prescribed under

Section 127 of the MRTP Act. This means that as long as

the period of 10 years from the finalisation of the revised

Development Plan has not expired, there was no question of

lapsing the reservation provided in the finalised revised

development plan.

9.Again, prima facie, the decisions in Salim Nizam

Sanadi (supra) and Shri. Amuksidha Shrikant Majge (supra)

support Mr. Kulkarni’s submission.

1 2022 SCC OnLine Bom. 5273

2 2023 SCC OnLine Bom. 999

3 2019(2) All MR 630

4 2018 SCC OnLine Bom. 2844

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10.In the case of Salim Nizam Sanadi (supra) and Shri.

Amuksidha Shrikant Majge (supra) considered the decision of

the Division Bench of this Court in Prafulla C. Dave & Ors.

vs Municipal Commissioner, Pune and Ors.

5

However, the

decisions in Santu Sukhdeo Jaibhave (supra) and Sadashiv

Tryambak Rajebahadur (supra) considered the decision of the

Hon’ble Supreme Court in Prafulla C. Dave vs Municipal

Corporation of Pune

6

, affirming the decision of the Division

Bench of this Court.

11.Mr Godbole argued that the facts in Prafulla Dave

were entirely different because, in the said case, notice

under Section 127 was served after the revised

Development Plan had been finalised. He submitted that in

the present case, the notice under section 127 was

admittedly served before the finalisation of the revised plan.

Therefore, the subsequent finalisation does not affect the

notice.

12.The two sets of decisions that at least prima facie

take conflicting views do not discuss the distinction now

sought to be made by Mr Godbole. In almost similar

material facts, the two sets of decisions of Co-equal

Benches reach diametrically opposite conclusions. Based

upon the first set, this petition may have to be allowed. But

if the second set of decisions are to be followed, this

petition would have to be dismissed.

13.Similarly, none of the judgments have had the benefit

of considering some of the observations made by the Full

Bench of this Court in Vishwas Bajirao Patil Vs. State of

Maharashtra & Ors.

7

The Full Bench, in the context of

deciding whether the amendment to Section 127, which

entered force on 29th August 2015 and enhanced the time

limit from 12 months to 24 months, has observed that no

5 2008 (3) Mh.L.J. 120

6 2007(6) ALL MR 207

7 2019 SCC OnLine Bom. 1770

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right is vested in a person having an interest in the land by

merely serving notice as contemplated by Section 127 of

the MRTP Act. The Full Bench observed that the right

would have vested in the landowner upon the expiry of a

period of one year from the date of issue of such notice had

the MRTP Act not been amended in the meantime.

14.Given the prima facie conflict between the two sets

of judgments delivered by the Coordinate Co-equal

Benches and the fact that certain observations made by the

Full Bench in Vishwas Bajirao Patil (supra) were not

considered, We think that this matter could be more

advantageously heard by a Bench of more than two Judges.

This conflict, according to us, could be best resolved by

resorting to the provisions of Rule 8 of Chapter I of the

Bombay High Court, Appellate Side Rules, 1960 (for short,

“the said Rules”).

15.Accordingly, we direct the Registry to place the

matter before the Hon’ble Chief Justice, given the

provisions of Chapter I Rule 8 of the said Rules.”

3. By the order of the Hon’ble The Chief Justice of the Bombay

High Court, dated 17

th

December, 2024, Writ Petition Nos.5180 of 2022

and this Petition no.5798 of 2023, were clubbed and were referred to the

Larger Bench under Rule 8 of Chapter I of the Bombay High Court

Appellate Side Rules, 1960 (the

‘1960 Rules’).

4. Subsequently, Writ Petition No.5180 of 2022 was disposed off

by our Bench, by an order dated 25

th

July 2025, which reads as under :

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“1. Mr. Godbole, the learned Senior Counsel

submits that the Petitioner, who is 86 years of age, has filed

an affidavit dated 29

th

June, 2025. Vide the said affidavit, he

has spelt out in paragraph 3 that considering the age of the

Petitioner and other factors, including the fact that the

Planning Authority has kept the land under reservation for

60 years, he may consider withdrawing the Writ Petition

subject to appropriate directions/orders being passed by the

Court, so as to facilitate an Award as regards the

Notification dated 21

st

January, 2021 by following the

principles laid down in the Right to Fair Compensation and

Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013 (hereinafter referred to as “

LARRA

2013”) within a period of six months. The said affidavit has

been marked as ‘X-1’ for identification.

2. In response to the said affidavit, Mr. Kulkarni,

the learned Advocate for the Corporation, places on record

a photostat copy of a communication dated 25

th

July, 2025,

signed by the three officers of the Corporation and

addressed to the Chief Law Officer of the Corporation’s

Law Department dealing with the land acquisition. The

same is marked as ‘

X-2’ for identification. The said

communication is indicative of the corporation’s intention

in the proceedings with regard to the land acquisition, that

the acquisition proceedings could be completed within a

period of one year, considering that the land was reserved

for a primary school, high school and 24 meters wide D.P.

Road. The learned Advocate was instructed in the said

communication to place the same before the Court.

3. Mr. Kulkarni further submits on instructions

from the Corporation that an amount equivalent to 30%

(approximately Rs. 12,49,93,329/-) on an approximate

valuation of the land to be acquired as per the appropriate

assessment of the SLAO, would be deposited with the

SLAO, within 8 weeks.

4. Mr. Godbole submits that considering the

advanced age of the Petitioner which is 86 years and

considering his health status, it would be appropriate for this

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Court to direct the Corporation to complete the acquisition

within 9 months, instead of 1 year. Mr. Godbole further

submits that since the suggestion of the Corporation is

acceptable to the Petitioner, this Petition can be disposed

off. He further submits that since the Corporation has made

a statement before the Court, it will have to maintain the

said statement and should not be resiled from the same.

5. In view of the above, we do not find any scope

for indulgence in the said arrangement, save and except that

the Petitioner is 86 years of age and the land is under

reservation for nearly 60 years. If the Petitioner makes a

request for reducing the timeline for completing the

acquisition from one year to 9 months, we do not find that

this could be an unreasonable request. For the Petitioner, a

reduction of three months also matters. If the Corporation

acts proactively in this proceedings and initiates quick steps

with promptitude, the acquisition could be completed even

within 9 months. We, therefore, record that this Court

would appreciate the gesture of the Corporation that the

acquisition of the land would be completed with

promptitude, within 9 months.

6. Needless to state that the statement that 30%

amount would be deposited with the SLAO within 8 weeks

is recorded.

7. With the aforesaid understanding and

directions, this Petition is disposed off by consent of the

Petitioner.”

PLEADINGS IN THE PETITION AND ORAL/WRITTEN SUBMISSIONS OF

THE LEARNED ADVOCATE FOR THE PETITIONER

5. The Petitioner has put forth prayers at Clauses [A] and [B],

which read as under :

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“[A] That this Honourable Court be pleased to issue a writ

of mandamus or writ in the nature of mandamus or any

other appropriate writ direction and order under Article 226

of the Constitution of India, 1950, holding that the said

reservation to the extent of the said land stands lapsed and

in furtherance thereof direct the Respondents to notify the

same by publishing in the Official Gazette under the

provisions of section 127(2) of the Maharashtra Regional

and Town Planning Act, 1966.

[B] That considering the issue involved in the

present petition and considering the nature of reliefs sought

the Petitioner most humbly prays that the present petition

may be disposed of at the stage of admission and the rule be

made absolute.”

6. The dates and events indicated by the Petitioner in Writ

Petition No.5798 of 2023 and the submissions of the learned Advocate, can

be summarized as under :

a) Petitioner is the owner of land admeasuring 18 acres situated

at Survey No.112/1A/1A/1/1A/1B, village Phaltan, taluka Phaltan,

District : Satara. (‘said property’ for short)

b)

18.12.1992 – The said property is under reservation bearing

no.80 for the purpose of RTO pursuant to the coming into effect of

the 2

nd

Revised Development Plan vide Gazette Notification dated

18/12/1992.

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c) 17.12.2002 – The prescribed period of 10 years post the

Notification dated 18.12.1992 came to an end.

d) 12.05.2010 – Phaltan Municipal Council, District : Satara,

being the Planning Authority, declared its intention u/s 23 read with

Sec.38 to prepare Draft Development Plan (3

rd

Revision), vide its

Resolution no.37.

e) 10.09.2010 – Phaltan Municipal Council, u/s 2(19) of the

MRTP Act, 1966, declared its intention under Section 23 read

Section 38 of the MRTP Act to prepare a Draft Revised

Development Plan (3

rd

Revision) for the area within the limits of

Phaltan Municipal Council by gazette notification.

f) 05.03.2012 – Petitioner, by registered Sale Deed purchased

the said land from the erstwhile owner.

g) 26.09.2013 – Phaltan Municipal Council carried out the

survey of the entire land within its jurisdiction as required u/s 25 of

the MRTP Act and published a notice in the Official Gazette

inviting suggestions and objections in respect of the Draft

Development Plan (3

rd

Revision).

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h) 23.10.2013 – Petitioner raised objections to the reservation

on the said land proposed in the Draft Development Plan (3

rd

Revision).

i) 05.11.2014 – Phaltan Municipal Council vide its Resolution

No.32, dated 19.08.2014, made certain modifications in the Draft

Development Plan (3

rd

Revision) and published the said plan, so

modified in the Official Gazette dated 05.11.2014.

j) 25.11.2014 – Phaltan Municipal Council, submitted the Draft

Development Plan (3

rd

Revision) to the Government of

Maharashtra for its sanction.

k) 17.11.2015 – Petitioner gave a purchase notice u/s 127 of the

MRTP on to the Chief Office Phaltan Municipal Council.

l)23.05.2016 – Draft Development Plan (3

rd

Revision) was

sanctioned.

m) 22.06.2016 – Final Revised Development Plan (3

rd

Revision)

came into effect in part.

n)28.06.2017 – The Petitioner preferred an application for

obtaining development permission for the said land. However, the

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said application was rejected by the Phaltan Municipal Council

vide its letter dated 28.06.2017.

o)16.11.2017 – The two years period as prescribed under the

provisions of Section 127 of the MRTP Act was completed on

16.11.2017.

7. The contentions and the grounds of objection set out by the

learned Advocate for the Petitioner are reproduced (verbatim), hereunder :-

(a) The Respondent Phaltan Municipal Council and the

Director of Town Planning and the Government of Maharashtra has

not proceeded with the acquisition of Petitioner’s land. The

Respondent Authorities are not even permitting the Petitioner to

beneficially enjoy his property by refusing to grant development

permission to the Petitioner.

(b) The State Government independently could have given

the directions under the provision of Section 37, even that has also

not been done by the Government of Maharashtra. The

correspondence only shows that the Respondents are interested in

continuing the reservation without actually acquiring the land of the

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Petitioner and not making the payment and despite assurance from

the correspondences no actual amount of compensation has ever

been given to the Petitioner and the Petitioner is further being

deprived of the beneficial use of his land.

(c) Whether after publishing of a Draft Revised

Development Plan, a Purchase Notice given before and after the

period of 24 months as contemplated by Section 127 of the

Maharashtra Regional and Town Planning Act, 1966 is over, the

Revised Development Plan comes into operation, then whether the

clock for 10 years period provided in Section 127 of the MRTP Act,

1966 gets reset.

(d) The Petitioner contends that another aspect which

requires consideration is that Section 38 uses the word ‘

At least

once in 20 years…’. Thus, in a given case planning authority may

propose Revision of Development Plan even before the period of

10 years, from the coming into force of Development Plan, gets

over and may bring into force such Revised Development Plan

before the said 10 years period is over. In such eventuality the land

under reservation will remain land locked for another period of 10

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years and the right u/s. 127 could never be invoked. This could not

have been the intention of the legislation.

(e) The Petitioner further contends that in the present case

the erstwhile 2

nd

Revised Development Plan the Petitioners land

had a Reservation for RTO. The said reservation has continued in

the 3

rd

Revised Development Plan. Thus, there can be two

eventualities, either the said reservation of RTO was shown on the

Petitioner’s land or it was not shown on the Petitioner’s land, in the

Draft Revised Development Plan. In either of the eventualities the

planning authority did have the intention, at the stage of Draft

Revised Development Plan, to continue the reservation for RTO in

the final Revised Development Plan.

(f) Thus, upon receipt of the Purchase Notice from the

Petitioner after the publication of Draft Revised Development Plan,

the planning authority was not prevented from acquiring the

Petitioners property, if it so intended to reserve it further for RTO.

However, the non-acquisition of the Petitioners land after the

purchase notice and instead continuing the reservation and even till

date not acquiring the Petitioners land clearly amounts to depriving

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the Petitioner from his beneficial use of land and defeating his

substantive right to property u/ Art. 300A. These aspects have not

been dealt with in the case of

Prafulla Dave (supra) and hence the

said judgment is not applicable in the facts of the present case.

(g) It is further contended by the Petitioner that the option

to invoke lapsing u/sec 127 of the MRTP Act is made available to

the land owner upon expiry of 10 years from the date of coming

into effect of the Development Plan. Similarly, the right u/s. 127

gets crystalized on the day the Purchase Notice is sent. The right is

accrued pursuant to the Notice u/s 127, in spite of the draft revised

development plan. Hence, grant of sanction to revised development

plan cannot curtail the running of the said period of 24 months

from expiring.

(h) It is further submitted by the Petitioner that there is no

restriction on the landowner to issue notice u/s. 127 of the MRTP

Act, 1966, when the revision of development plan is undertaken

under Section 38 and as a necessary corollary time or waiting

period is not suspended. In other words, the planning authority will

have to take necessary steps as per Section 127 in the period of 24

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months notwithstanding that the revision of development plan is

undertaken. Therefore, upon expiry of 24 months from the date of

notice under section 127 dated 17.11.2015, the reservation upon the

subject property has lapsed and since then the property had become

available to the Petitioner for the purpose of development.

(i) The learned Advocate for the Petitioner submits that it

is required to be noted that the MRTP is a regulatory statute,

primarily focused on planning and development of land in

Maharashtra. Whereas, right to property guaranteed under Article

300A of the Constitution of India is a substantive and constitutional

right. The MRTP Act being a regulatory statute, the provisions

therein cannot be construed in a manner to take away substantive

right, which is guaranteed under Article 300A.

SUBMISSIONS OF THE LEARNED ADVOCATE GENERAL

8. The learned Advocate General has extensively canvassed oral

submissions and has tendered written notes as well. The same are

summarized as under :-

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(A) The reference needs to be answered by considering, whether

in the light of the relevant provisions of the MRTP Act, 1966, any right that

may have accrued to the owner of the land thereunder, by service of a

purchase notice upon the relevant authority, is sought to be taken away by

imposing a fresh reservation under the revised development plan

sanctioned prior to the expiry of the prescribed period from the date of

such service.

Conditions Precedent under Section 127 of the MRTP Act, 1966

(B) Section 127 of the MRTP Act, 1966, deals with lapsing of

reservation. Under the said provision, broadly, if the land reserved, allotted

or designated for any purpose specified in any plan under the MRTP Act,

1966 is not acquired by agreement within ten years from the date on which

the final development plan has come into force or if a declaration under

Section 126(2) or (4) is not published within the said period of ten years,

the owner or any person interested in the land may serve notice along with

documents, showing his title or interest to the authority concerned and if

within 24 months from the date of service of such notice the land is not

acquired or no steps are taken for its acquisition, the reservation, allotment

or designation is deemed to have lapsed and the land is deemed to be

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released from such reservation, allotment or designation and becomes

available to the owner.

(C) It is pertinent to note that Section 127 of the MRTP Act, 1966

originally stipulated that reservations under a final development plan

would lapse if no effective steps were taken within a period of 6 months

from the date of service of the purchase notice. Section 127 of the MRTP

Act, 1966 was amended vide the Maharashtra Act XVI of 2009, whereby

the prescribed period was extended from 6 months to 12 months with

effect from 24

th

June, 2009. Thereafter, Section 127 of the MRTP Act, vide

the Maharashtra Act XLII of 2015, was again amended to increase the

prescribed period from 12 months to 24 months, with effect from 29

th

August, 2015.

(D) Section 127 requires the following cumulative conditions to be

satisfied in order for a reservation to be deemed to have lapsed.

(i) That the reserved/ designated land is not acquired by

agreement within ten years from the date on which a final

development plan comes into force. This circumstance is a

peremptory condition for the operation of this provision.

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(ii) That after satisfaction of the condition (i) above, the

land owner or any person interested in the land serves a purchase

notice along with the documents of title or interest in the said land

upon the relevant authority; and

(iii) That after satisfaction of condition (i) above, if within

the prescribed period from the date of service of the purchase

notice in (ii) above, the relevant authority fails to acquire the land

or takes steps for the commencement of its acquisition.

(E) It is only on the satisfaction of these three cumulative

conditions that Section 127 of the MRTP Act, 1966 creates a legal fiction,

i.e. that the reservation of the land is deemed to have lapsed. It is submitted

that the satisfaction of any one of the above three conditions does not

per-

se

result in automatic lapsing. Accordingly, the mere expiry of the period

of ten years from the date on which a final development plan comes into

force and/or the service of the purchase notice by the land owner or person

interested in the land on the planning authority, does not result in the

lapsing of the reservation.

(F) The observation of the Supreme Court in

Prafulla C. Dave

may be usefully referenced:

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“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 either under the MRTP

Act or under the Land Acquisition Act, 1894 and the said

authority fails to comply with the demand raised thereunder.

Such notice can be issued by the owner or any person

interested in the land only if the land is not acquired or

proceedings for acquisition are not initiated within ten years

from the date on which the final development plan had come

into force. After service of notice by the landowner 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 landowner or the person interested is mandated by

the statute to take certain positive steps i.e. 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

landowner or the person interested remains silent, and in the

meantime, 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 of another ten

years. To deny such a result would amount to putting a halt on

the operation of Section 38 and rendering the entire of the

provisions with regard to preparation and publication of the

revised plan otiose and nugatory. To hold that the inactivity on

the part of the authority i.e. failure to acquire the land for ten

years would automatically have the effect of the reservation,

etc. lapsing would be contrary to the clearly evident legislative

intent. In this regard it cannot be overlooked that under Section

38 a revised plan is to be prepared on the expiry of a period of

20 years from date of coming into force of the approved plan

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under Section 31 whereas Section 127 contemplates a period of

10 years with effect from the same date for the consequences

provided for therein to take effect. The statute, therefore,

contemplates the continuance of a reservation made for a

public purpose in a final development plan beyond a period of

ten years. Such continuance would get interdicted only upon

the happening of the events contemplated by Section 127 i.e.

giving/service of notice by the landowner to the authority to

acquire the land and the failure of the authority to so act. It is,

therefore, clear that the 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 landowner or the person interested himself remains

inactive, the provisions of the Act dealing with the preparation

of revised plan under Section 38 will have full play. Action on

the part of the landowner or the person interested as required

under Section 127 must be anterior in point of time to the

preparation of the revised plan. Delayed action on the part of

the landowner, that is, after the revised plan has been finalised

and published will not invalidate the reservation, allotment or

designation that may have been made or continued in the

revised plan. (Emphasis is supplied by the learned AG)

Prerogative to revise Development Plan

(G) Until and unless such reservation is deemed to have lapsed by

operation of law under the provisions of the MRTP Act, 1966, the relevant

authorities have complete liberty to revise the development plan in terms

of the procedure under the Act and decide to continue the reservation for

the concerned land either for the same purpose or for any other purpose. In

fact, there is a statutory obligation cast upon the planning authority under

Section 38 of the MRTP Act, 1966, to revise the development plan every

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twenty years after carrying out a fresh survey, preparing the existing land

use map, etc. It is submitted that by reading Section 127(1) of the MRTP

Act, 1966 in the manner suggested by the Petitioners would be contrary to

the avowed scheme and object of the MRTP Act, 1966, i.e. to provide for

the planned development and control of land use.

No vested right after service of the Purchase Notice

(H) The Full Bench of this Hon'ble Court in Vishwas Bajirao

Patil

8

whilst considering the question of whether the amendment dated 29

th

August 2015 to Section 127(1) of the MRTP Act, 1966, enlarging the

period available to the planning authority for taking effective steps for

acquisition of the reserved land from 12 months to 24 months would apply

in a case where a purchase notice contemplated under 127(1) of the MRTP

Act, 1966 has been served on the authority before the said amendment

came into force.

(I) The Full Bench observed that under the law, an amendment is

prospective, unless by express or necessary implication, it is made to have

retrospective operation. A law, therefore, which takes away or impairs any

vested right acquired under an existing law, is retrospective. In this

8 Vishwas Bajirao Patil v. State of Maharashtra 2019 SCC Online Bom. 1770

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connection, the Full Bench examined the question of whether by the

service of the purchase notice, any vested right was created in the land

owner which was sought to be taken away by the amendment. The Full

Bench held that a future interest is vested in a person if it meets the

requirement of there being no condition precedent to the interest.

Accordingly, as per the Full Bench, no right is vested in the person having

a proprietary interest in the land upon serving the purchase notice, but that

such right would have vested only upon expiry of 12 months from the date

of service of such notice. Only upon expiry of such period would any right

have vested in the land owner. Since in the facts before the Full Bench, the

amendment was made prior to the expiry of the prescribed period, no

vested right had been taken away and the case of the land owner therein

would be governed by the amended provision of the MRTP Act, 1966 viz.

24 months from the service of the purchase notice.

(J) The decision of the Full Bench is illuminating in so far as it

affirms that by the mere service of a purchase notice under Section 127(1)

of the MRTP Act, 1966, upon the planning authority, does not by itself

create any vested right in the land owner. It is only after the expiry of the

prescribed period from the date of service of such purchase notice that any

right is vested in the land owner. It may be possible to conceive of the

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effect of Section 127 of the MRTP Act, 1966, in a different manner.

Section 127 of the MRTP Act, 1966 prescribes two time periods. The two

time periods are separated by an act of the land owner in serving the

purchase notice. The first is a period of ten years from the date of the final

development plan coming into force, within which the acquisition of the

reserved land has to be completed or proceedings for acquisition ought to

have commenced. The second time period is a period of two years from the

date of service of the purchase notice upon the authority, within which the

authority is required to take effective steps for acquisition. It is only after

the elapse of the aforesaid two time periods, then the reservation of the

land is deemed to have lapsed and any right is vested in the land owner.

(K) Reference may be made to the relevant observations of this

Hon’ble Court in Vishwas Bajirao Patil as under:

23. The traditional vested rights Doctrine is based on the

principle i.e. State has the power to prescribe the Rules of

conduct for transaction or occurrences that take place on its

own territory. Once the last event of the transaction or

occurrence takes place on the territory of the State the parties

to it acquire vested right under Law of that jurisdiction.

24. A future interest is vested if it meets the requirement of

there being no condition precedent to the interest.

25. Before formally answering the reference in the instant

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case, as noted above the development plan was notified on

18-12-1999. Ten years expired on 17-12-2009. Notice under

section 127 was issued on 17-11-2014 and twelve months

would come to an end on 16-11-2015, but before that the

amendment was made on 29-8-2015 replacing the words

‘twelve months’ by ‘twenty-four months ’.

26. We thus answer the reference by holding that the

amendment is prospective but no right is vested in the person

having proprietary interest in the land upon serving the

notice. The right would have vested upon expiry of one year

of the notice had the statute not been amended on 29th

August, 2015, and thus as on the date of the amendment i.e.

29th August, 2015 there was no vested right in favour of the

noticee. The rights of the noticee would be governed by the

statute as amended on 29th August, 2015.

(Emphasis is supplied by the learned AG)

(L) The aforesaid decision of the Full Bench is binding on this Hon’ble

Court. The Full Bench decision has been consistently followed by this Hon’ble

Court, including in Atmaram Krishna Sawant v. Shaikh Abubakar Hassan

9

Decisions in Salim Sanadi & Amuksidha lay down the correct position of law

(M) The decisions of this Hon’ble Court in Salim Nizam Sanadi

and Amuksidha Srikant Majge correctly interpret the law regarding the

effect of a sanction to the revised development plan under Section 127 of

the MRTP Act, 1966.

9 Pertinently, the decision of the Full Bench has been followed by this Hon’ble Court in

Atmaram Krishna

Sawant v. Shaikh Abubakar Hassan

Writ Petition No. 2293 of 2018 (19

th

December, 2019)

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(N) In Salim Nizam Sanadi, the original Development Plan had

been notified on 26

th

October, 1995. Thereafter, on 27

th

March, 2012, a

purchase notice was issued, and on 4

th

April, 2012 (before the expiry of one

year of the purchase notice), a fresh revised Development Plan was

sanctioned under Section 38 of the MRTP Act, 1966. The Division Bench

of this Hon’ble Court, following the decision of the Hon’ble Supreme

Court in Prafulla C. Dave (supra), held that the notification sanctioning the

revised Development Plan has to be given effect to and the period under

Section 127 of the MRTP Act, 1966 would commence from the date of the

said notification. The Court held that since the notification sanctioning the

revised Development Plan was published prior to the expiry of the

prescribed period of 12 months from the service of the purchase notice, the

reservation on the said land continues to subsist. The Court further held

that the notification sanctioning the revised Development Plan was to be

treated as the final Development Plan and the prescribed period of 10 years

would commence from the date of the notification sanctioning the revised

Development Plan under Section 38 of the MRTP Act, 1966. This Hon’ble

Court, therefore, held that the reservation on the Petitioners’ land had not

lapsed.

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(O) This Hon’ble Court observed as under:

9. We have considered the submissions. We find that

Respondent No. 3, by a notification issued on 4 April 2012,

sanctioned the Revised Development Plan, and the said

land was again reserved for public purpose, viz., for a

primary school and playground under Reservation Site No.

378. The purchase notice had been issued on 27 March,

2012 by the Petitioners and served on the Respondent No.

1 on that date itself and prior to the expiry of the prescribed

period of 12 months from the service of the purchase

notice, the notification sanctioning the Revised

Development Plan had been issued. Therefore, the

reservation of the said land continued to subsist when the

Revised Development Plan again reserving the said land

for a public purpose come into force. It is clear from the

Judgment of this Court in Prafulla C. Dave (supra) that the

notification sanctioning the Revised Development Plan has

to be given effect to and the period under Section 127 of

the said Act would commence from the date of the

notification. This Court in paragraph 16 to 18 held thus: …

10. It is therefore, clear that from this Judgment that the

notification sanctioning the Revised Development Plan is

treated as final Development Plan and therefore, the

prescribed period under Section 127 of the said Act would

commence from the date of notification sanctioning the

Revised Development Plan prepared under Section 38 of

the said Act and notified under Section 31(6) of the said

Act. In the present case, the subsequent reservation of the

said land by the sanctioned Revised Development Plan

would be the fresh starting point of the period prescribed

under Section 127 of the said Act, particularly since the

period had not expired from the service of the purchase

notice. Therefore, in our view, since the period prescribed

under Section 127 of the said Act from service of the

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purchase notice dated 27 March, 2012 had not expired

when the Revised Development Plan was sanctioned on 4

April, 2012, the reservation of the said land has not lapsed.

(P) In

Amuksidha Srikant Majge, the original Development Plan

was notified on 6

th

April, 1979 and was in force when a purchase notice

was issued on 27

th

February, 2012. On 4

th

April, 2012, a revised

Development Plan under Section 38 of the MRTP Act, 1966, was

published. The Petitioner thereafter issued a further purchase notice on 28

th

December, 2012. It was sought to be contended by the Petitioner that the

purchase notice having been issued on 27

th

February, 2012, prior to the

issuance of the revised Development Plan, the revised Development Plan

will not have an effect of providing of a fresh period of 10 years under

Section 127 of the MRTP Act, 1966. The Division Bench of this Hon’ble

Court, relying upon the observations of the Hon’ble Supreme Court in

Prafulla C. Dave, held that as on the date of publication of the revised

Development Plan, the period of 1 year from the date of issuance of

statutory notice had not expired, and thereafter the reservation has not

lapsed (Para 12). It was further held that from the decision of the Hon’ble

Supreme Court in Prafulla C. Dave, it was apparent that the notification

sanctioning the revised Development Plan is to be treated as the final

Development Plan and the prescribed period under Section 127 of the

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MRTP Act, 1966 would commence on the date of notification sanctioning a

revised Development Plan.

(Q) This Hon’ble Court observed as under:

12. In the facts of the present case, the reservation of the

said property had not lapsed, as the prescribed period of

one year from the issuance of the statutory purchase notice

under Section 127 of the MRTP Act had not expired, when

the revised part Development Plan had been sanctioned by

the State Government. This Court has held that the

notification sanctioning the revised Development Plan has

to be given effect to and that the prescribed period under

Section 127 of the MRTP Act would commence from the

date of the notification. This has been held by this Court

in Prafulla C. Dave v. Municipal Corporation, Pune

2

.

Paragraphs 16 to 18 of the decision read thus:—

…

13. It is clear from the said decision that the notification

sanctioning the revised Development Plan is treated as

final Development Plan and the prescribed period under

Section 127 of the MRTP Act would commence from the

date of the notification sanctioning the revised

Development Plan. In the present case, the reservation of

the subject property by the sanctioned revised

Development Plan would be the fresh starting point of the

period prescribed under Section 127 of the MRTP Act.

Hence, the period of ten years provided under Section 127

of the MRTP Act would start running from the sanctioning

of the revised Development Plan on 4

th

April 2012 and

only upon expiry of that period, purchase notice can be

issued and upon expiry of one year from the issuance of

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the purchase notice, reservation of the said property can be

said to have lapsed. There is thus no lapsing of reservation

in the present case.

(Emphasis is supplied by the learned AG)

Reliance on Decisions in Bhavnagar, Santo Jaibhave and Sadashiv

Tryambak is misplaced

(R) The reliance placed on the decision of the Hon'ble Supreme

Court in Bhavnagar University

10

is misplaced. The case arose in the context

of Sections 20 & 21 of the Gujarat Town Planning & Urban Development

Act, 1976

11

, which legislation is materially different and does not contain

certain specific provisions embodied

12

in the MRTP Act, 1966.

(S) As would be evident from the said judgment, the case arose in

a different factual situation. Under the Gujarat Act, revision of

10Bhavnagar University v. Palitana Sugar Mills (2003) 2 SCC 111

11 “

20. Acquisition of land. —(1) The area development authority or any other authority for whose purpose land

is designated in the final development plan for any purpose specified in clause (b), clause (d), clause (f), clause

(k), clause (n) or clause (o) of sub-section (2) of Section 12, may acquire the land either by agreement or under

the provisions of the Land Acquisition Act, 1894.

(2) If

the land referred to in sub-section (1) is not acquired by agreement within a period of ten years from the date of

the coming into force of the final development plan or if proceedings under the Land Acquisition Act, 1894, are

not commenced within such period, the owner or any person interested in the land may serve a notice on the

authority concerned requiring it to acquire the land and if within six months from the date of service of such

notice the land is not acquired or no steps are commenced for its acquisition, the designation of the land as

aforesaid shall be deemed to have lapsed.”

“21. Revision of development plan. —At least once in ten years from the date on which a final development plan

comes into force, the area development authority shall revise the development plan after carrying out, if

necessary, a fresh survey and the provisions of Sections 9 to 20, shall, so far as may be, apply to such revision.”

12 See Section 37, 49 and 50 of the MRTP Act, 1966, which provisions are absent in the Gujarat Act.

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development plan was mandatory every ten years, coinciding the period

after which reservation would lapse, creating a unique statutory context not

present in the instant case.

(T) In that case, the land owners contended that under Section

20(2) of the Gujarat Town Planning & Urban Development Act, 1976 upon

the failure of the authorities to acquire the reserved land, after 6 months of

the service of the purchase notice and the expiry of 10 years from the

coming into force of the final development plan viz., the reservation in

question had lapsed. The authorities contended that the sanction of revised

development plan, which under Section 21 of said Act, was bound to take

place at least once in 10 years from the coming in to force of the final

development plan, arrested the lapsing of the reservation.

(U) In that case the Supreme Court held that if the contention of

the Authorities were accepted, and that upon every revision of the

development plan every 10 years from the date of coming into force of the

final development plan under Section 21 of the said Act, would start a fresh

period of 10 years, Section 20(2) of the said Act would be rendered

completely otiose. It was in this specific context that the decision was

rendered.

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(V) Some of the observations of the Supreme Court in Bhavnagar

University, which make this evident, are as under:

37. The said words indicate the intention of the legislature to

the effect that by providing revision of the 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 landowner under Section 22 of getting the

land defreezed. In the event the learned Solicitor-General is

accepted, the same would completely render the provisions of

Section 20(2) otiose and redundant.

(Emphasis is supplied by the learned AG)

(W) That the decision in Bhavnagar University (supra) was confined

to the factual context set out herein above is evident from some of the

subsequent decisions of this Hon'ble Court.

(i) In Manakini Ruprao Khangar v. State of Maharashtra

2023 SCC Online Bom. 1050, this Hon’ble Court distinguished the

decision in Bhavnagar University at paragraphs 19 to 22. This Court

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noted that the Supreme Court was considering the provisions of the

Gujarat Town Planning Act, wherein there was no opportunity

available for the owner of land reserved under the development plan

to issue a purchase notice in view of the fact that the revision in plan

was mandated every ten years. In that contingency, the Supreme

Court held that section 21 of the Gujarat Act, does not and cannot

mean that the substantive right conferred upon the owner of the land

or the person interested therein shall be taken away and it is not and

cannot be the intention of the Legislature that which is given by one

hand should be taken away by the other.

(ii) Similarly, in Prafulla C. Dave vs. Municipal Commissioner

2008 (3)Mh. LJ 120, this Hon'ble Court at para 11 distinguished the

judgment in

Bhavnagar University on the ground that it did not

answer the question raised therein. Paragraph 11 of the judgment is

quoted as under:

“In Bhavnagar University v. Palitna Sugar Mill Pvt. Ltd.,

reported in (2003) 2 SCC 111 : AIR 2003 SC 511 the

question which arose for consideration was whether by

reason of inaction on the part of the State and its authorities

under the Town Planning Act to acquire the lands for a

period of more than 10 years, in terms of the provisions of

Land Acquisition Act, 1894 despite service of notice, the

same stood dereserved/de-designated in view of issuance

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of draft revised plan under section 21 thereof or the term of

10 years stood extended? The Supreme Court was pleased

to hold that after the period of 10 years as required under

the Gujarat Act had expired and if the land had not been

acquired in the manner contemplated merely because the

draft revised plan was issued would not automatically

extend the period of reservation. Considering section 21 of

the Gujarat Act, the Court held that section 21 of the Act,

in their opinion, does not and cannot mean that the

substantive right conferred upon the owner of the land or

the person interested therein shall be taken away and it is

not and cannot be the intention of the Legislature that

which is given by one hand should be taken away by the

other. This was in the context that the planning authority

was bound to revise the plan on the expiry of ten years

from the notification of the sanctioned draft plan and the

notice to acquire could ordinarily be given and on the

expiry of ten years from the notification of the sanctioned

plan. In other words, the owners would have no

opportunity of serving the notice if in the draft revised plan

a further extension of reservation was provided for. This

Judgment does not answer the issue which has been raised

by the petitioners herein.”

(Emphasis is supplied by the learned AG)

The aforesaid decision of this Hon’ble Court was confirmed

by the Supreme Court.

(X) The reliance on the decision in Sadashiv Tryambak

Rajebahadur is misplaced. In that case, a purchase notice was issued on 8

th

July, 2015.Thereafter, on 29

th

August, 2015, the prescribed period of 12

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months after the issuance of the purchase notice was substituted by 24

months by an amendment to Section 127 of the MRTP Act, 1966. In the

meanwhile, a revised Development Plan was partly sanctioned on 9

th

January, 2017. Opposing the grant of any relief, the Respondent contended

that, in light of the period having been extended to 24 months, the period

after the purchase notice had not expired on the date on which the revised

Development Plan was notified, and as such, the reservation had not

lapsed. The Division Bench of this Hon’ble Court proceeded on the basis

that the amendment extending the period from 12 months to 24 months

would not apply to the notices which had already been issued prior to the

amendment. According to the Division Bench, the same would tantamount

to giving retrospective effect to the amendment. This judgment proceeds

on a premise which is contrary to the Full Bench judgment of this Hon’ble

Court in Vishwas Bajirao Patil (supra), and therefore, the said judgment is

no longer good law.

(Y) The reliance on the decision in Santo Sukhdeo Jaibhave is

misplaced. In that decision, the purchase notice was issued on 14

th

July,

2015 and prior to expiry of 24 months, a revised Development Plan came

into force on 9

th

January, 2017. An argument made on behalf of the

Respondent that a purchase notice under Section 127 could not have been

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issued after the publication of the draft revised Development Plan under

Section 26 of the MRTP Act, 1966 though admittedly not sanctioned. This

was the question framed by this Hon’ble Court in paragraph 25 of the

judgment which reads as under:

25. Question that arises for consideration of this Court is

whether the purchase notice issued by the petitioners

subsequent to the date of the Draft Revised Development

Plan for the city of Nashik would be a valid notice or not or

the petitioners were required to again wait for expiry of 10

years from the date of the Draft Revised Development Plan

for the city of Nashik and then issue a fresh notice and then if

no steps would be taken by the respondents within the time

prescribed, the reservation in respect of the writ land would

lapse at that stage or not.

(Z) This judgment at paragraph 41 proceeded on the basis that a

statutory right had accrued in the Petitioners on the issuance of the notice

which is contrary to the decision of the Full Bench in

Vishwas Bajirao

Patil (supra). This judgment did not deal with the effect of the issuance of

the final notification prior to the expiry of the statutory period of 24

months and it was held as under:-

41. In the present case, the notification under Section

6, admittedly, has not been issued. The statutory notice

viz. the Purchase Notice under Section 127 of the

MRTP Act was issued on 14th July 2015 and it is

evident that no steps as contemplated under Section

126(1)(c) read with Section 127 were taken before the

expiry of the statutory period of 24 months. We are

unable to agree with the submissions of Ms. Deshmukh

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on the application of the judgment of Prafulla C.

Dave (supra) as it would deprive the petitioners of their

statutory rights. In this regard, the Apex Court in the

case of Godrej And Boyce Manufacturing Company

Limited (supra) has held that the statutory right

accrued to the owners cannot be taken away by an

attempt to impose fresh reservation. We are also unable

to agree with the contention of Mr. Patil that the

publication of the Draft Revised Plan having been

published prior to the issuance of the Purchase Notice

and the same would have an effect of continuing the

reservation on account of the same being sanctioned

subsequently.

(AA) The decision in

Santo Sukhdeo Jaibhave has been clarified by

the Hon’ble Bombay High Court subsequently in Babanrao Dattu

13

. The

Division Bench of the Hon’ble Bombay High Court has held that a right of

de-reservation accrues to the landowner upon application of deeming

fiction if he issues notice to the appropriate authority and the said authority

fails to take steps for acquisition of the land in question within the period

prescribed under Section 127 of the MRTP Act, 1996.

(BB) In relation to the decision in Santo Sukhdeo Jaibhave, the

Division Bench of this Hon’ble Court clarified as under:

“In the case of Santu Sukhdeo Jaibhave (Supra), a Coordinate

Bench of this court has taken a view that in a case involving

question of deemed lapsing of reservation, the draft revised

development plan has no legal sanctity and it cannot be

13Babbanrao Dattu v. State of Maharashtra 2023 SCC Online Bom. 1590

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considered as final. In other words, the Division Bench has

taken a view that the question of deemed lapsing of

reservation can be examined only in the context of final

revised development plan and not in the context of draft

revised development plan and if purchase notice has been

issued after draft revised development plan is published but

before it has received sanction so as to become a final revised

development plan, the right shall accrue to the land owner to

seek benefit of deemed lapsing of reservation, if other

conditions of Section 127 of the MRTP Act are fulfilled.”

(CC) No conflict therefore arises between the decisions in the case

of this Court in

Salim Nizam Sanadi and Amuksidha Majge on the one

hand and Santu Sukhadeo Jaibhave and Sadashiv Tryambak Rajebahadur

on the other hand. On the consideration of the aforesaid, it is apparent that

decision in Salim Nizam Sanadi and Amuksidha Majge which dealt

directly with the issue of the effect of a revised Development Plan being

notified prior to the expiry of the statutory period after issuance of the

purchase notice. Neither the judgment in Santu Jaibhave nor the judgment in

Sadashiv Rajebahadur dealt with this issue. Both these decisions dealt with

the effect of draft Development Plan being issued prior to the expiry of the

statutory period after the purchase notice.

(DD) The Petitioner has contended that Section 38 of the MRTP

Act, 1966, requires the Planning Authority to revise the Development Plan

“

at least once in 20 years” and therefore, in a given case the Planning

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Authority may propose the revision of the Development Plan even before

the expiry of period of 10 years, thereby frustrating the purported rights of

the landowner available under Section 127 of the MRTP Act, 1966. The

Petitioner implies that the provision may be abused to deny the landowners

of the rights conferred under Section 127 of the MRTP Act, 1966.

(EE) It is settled law that a mere possibility of the abuse of a

provision does not affect its construction. The construction of a statutory

provision cannot be determined on the assumption that the executive or

authority will abuse the provision in an arbitrary manner in exercise of the

discretion conferred on it.

14

It is therefore submitted that the Petitioner’s

contention as to possibility of abuse cannot be accepted.

(FF) It is further submitted that the fact that in the Revised

Development Plan sanctioned under Section 38 of the MRTP Act, 1966 the

concerned land continues to be reserved for the same purpose is of no

relevance. As set out herein above, under the provisions of the MRTP Act,

1966 the Planning Authority has complete liberty to revise the

Development Plan in terms of the procedure under the Act and can decide

to continue the reservation for the concerned land either for the same

14 See Generally DK Trivedi & Sons v. State of Gujarat 1986 SCC Online SC 374 at Pr. 50; Collector of Customs

v.; State of Punjab at Pr. 34

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purpose or for any other purpose. The Petitioner’s contentions in this

regard are devoid of any merit.

(GG) In Godrej & Boyce Manufacturing Company Ltd.

15

, challenge

was laid to the notification dated 5

th

August 2008, issued by the State

Government under Section 37(1) of the MRTP Act, 1966, proposing to

modify the development plan by deleting the reservation of the land in

question from Railways and adding the reservation for Road. In that case,

10 years after the expiry of the development plan, the Appellant issued a

purchase notice dated 04

th

September 2002 under section 127 of the MRTP

Act, 1966. The period of six months prescribed at the relevant time under

Section 127 of the MRTP Act, 1966, after issuance of the purchase notice

had expired on 03

rd

March 2003. In this context, the Supreme Court set

aside the notification dated 05

th

August 2008 modifying the reservation

under the development plan, holding that upon the expiry of 10 years and 6

months’ notice period, the Appellant acquired a statutory right over the

land, and in view thereof, the notification could not be given effect to. The

relevant extracts from the said judgment are reproduced as under :

15 Godrej & Boyce Manufacturing Co. Ltd. v. State of Maharashtra (2015) 11 SCC

554

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17. 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 of 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 had lapsed long back. Further

Respondent 2 vide its Letter dated 1-11-2004 has stated

that there is no proposal for acquisition of land for the

purpose for which it was reserved.

20….. Therefore, we have to hold that the impugned

notification is bad in law and liable to be quashed. The

High Court has not examined the impugned notification

from the viewpoint of Section 127 of the MRTP Act and

interpretation of the abovesaid provision made in Girnar

Traders (2) [Girnar Traders (2) v. State of Maharashtra,

(2007) 7 SCC 555], therefore, giving liberty to the

appellant by the High Court to file objections to the

proposed notification is a futile exercise on the part of the

appellant for the reason that the State Government, once

the purpose the land was reserved for has not been utilised

for that purpose and a valid statutory right is acquired by

the landowner/interested person after expiry of 10 years

from the date of reservation made in the development plan

and 6 months' notice period has 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 the Railways and adding to the development

plan for the formation of development plan of road after

lapse of 10 years and expiry of 6 months' notice served

upon the State Government.

(Emphasis is supplied by the learned AG)

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(HH) In Kesaranand Ginning & Pressing Factory v. State of

Maharashtra(Aurangabad Bench)Writ Petition No. 8878 of 2015 (order dated

25

th

February 2016), the Respondent authority sought to resist a declaration

of lapsing by the landowner, on the ground that upon the publication of the

revised development plan, a fresh purchase notice under Section 127 of

MRTP Act had not been issued. In that case, the revised development plan

was published on 04

th

December 2012, more than 1 ½ years from the

service of the purchase notice dated 09

th

March 2011 under Section 127 of

the MRTP Act, 1966. Relying upon the decision in

Godrej and Boyce

Manufacturing Company Limited vs. State of Maharashtra (2015) 11 SCC

554,

this Hon’ble Court held that upon the expiry of 1 ½ years from the

date of service of the purchase notice, the rights of the Petitioners stood

crystalised. It is pertinent to note that at the relevant time, the prescribed

period under Section 127 of the MRTP Act, 1966 was 12 months from the

date of service of the purchase notice.

(II) In

Natwarlal Dhanjibhai Vora v. State of Maharashtra (Aurangabad

Bench) Writ Petition No. 8996 of 2018 (order dated 03

rd

May 2023), the

Respondent authority sought to resist a declaration of lapsing by the

landowner, on the ground that a revised development plan had been

published. In that case, the final development plan came into effect on 31

st

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October 1981. After the expiry of 10 years therefrom, the Petitioner vide

purchase notice dated 08

th

March 2011 called upon the planning authority

to acquire the land. However, admittedly, the planning authority failed to

do so within 1 year of the service of the purchase notice, which was the

period prescribed at the relevant time. Relying upon the decision in

Kesaranand Ginning (supra), the High Court noted that the revised

development plan came into effect after 1 ½ years of the service of the

purchase notice under Section 127 of the MRTP Act, and the rights of the

Petitioner stood crystalised. (Pr. 9).

(JJ) The SLP against the judgment of the Aurangabad Bench was

dismissed by the Supreme Court, stating that it was not inclined to interfere

with the impugned judgment. It is well settled that the doctrine of merger is

inapplicable to the dismissal of SLPs by the Hon’ble Supreme Court. In

other words, an order refusing special leave to appeal does not stand

substituted in place of the order under challenge (See Kunhayammed & Ors.

v. State of Kerala 2000(6) SCC459)

(KK) In Leelabhai Champalal Chajjed v. State of Maharashtra

(Aurangabad Bench) Writ Petition No. 8355 of 2023 (order dated 02

nd

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February 2024) the petition seeking declaration of lapsing of reservation

was sought to be resisted on the ground that a modified development plan

with effect from 15

th

May 2012 had been sanctioned under Section 37 (1)

of the MRTP Act, 1966 and therefore, the purchase notice dated 22

nd

June

2000 was premature. In this context the High Court citing the judgments

in

Girnar Traders, Santu Sukhdeo Jaibhave and Natwarlal Dhanjibhai Vora

held that despite the expiry of a more than a decade after the issuance of

the purchase notice dated 22

nd

June 2000, the authority had failed to take

any effective steps as contemplated under Section 127 of the MRTP Act,

1966 and the Petitioner’s rights stood crystalised as held by the Supreme

Court in

Godrej Boyce.

OUR ANALYSIS AND CONCLUSION

9. On considering the sequence of dates and events, on which

there is no dispute, we find that the following aspects are decisive :-

(a) The land at issue has been subjected to reservation

bearing no.80 for the purpose of constructing the Regional

Transport Office (‘RTO’) vide the second Revised Development

Plan dated 18

th

December, 1992 under the provisions of the MRTP

Act, 1966.

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(b) The requisite period of 10 years for issuing a purchase

notice expired on 18

th

December, 2002.

(c) The owner has not issued any purchase notice

immediately after 18

th

December, 2002.

(d) On 10

th

September, 2010, the Planning Authority

declared its intention in the Maharashtra Government Gazette, to

prepare a Draft Development Plan (Third Revision) from the Area

within the limits of Phaltan Municipal Council.

(e) On 5

th

March, 2012, a Registered Sale Deed was

executed by Shrikrushna Ramchandra Damodare, by virtue of

which, the present Petitioner, Nilesh Prakashrao More became the

owner of the Writ Property.

(f) The Petitioner has raised objections on 23

rd

October,

2013 in respect of the Third Revised Draft Development Plan. Yet,

a purchase notice was not issued.

(g) On 19

th

August, 2014, the Phaltan Municipal Council

passed a Resolution No.32 and made certain modifications in the

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Third Revised Draft Development Plan. Yet, a purchase notice was

not issued.

(h) On 17

th

November, 2015, the Petitioner issued a

purchase notice under Section 127 of the MRTP Act, 1966. This is

undisputed.

(i) On 5

th

March, 2016, Reservation Notice was addressed

by the Phaltan Municipal Council to the Collector Satara with a

proposal to acquire the land under reservation.

(j) On 23

rd

May, 2016, the Government of Maharashtra

issued a notification granting partial sanction with modification to

the Third Revised Draft Development Plan.

(k) On 16

th

March, 2017, the Deputy Director Town

Planning, Satara, addressed a letter to the RTO, Kolhapur bringing

to his notice that Reservation No.80 was for the purpose of

constructing a building for the RTO.

(l) The Petitioner preferred an application to the Phaltan

Municipal Council for obtaining development permission for his

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land (writ land under reservation), which was rejected by the

Municipal Council on 28

th

June, 2017.

10. For ready reference, we are reproducing the relevant Sections

2(19), 31(1), 31(6), 38, 126 & 127 of the MRTP Act, 1966 hereunder, :-

“

2(19). Definition

[(19) “Planning Authority” means a local authority;

and includes,-

(a) a Special Planning Authority constituted or

appointed or deemed to have been appointed under section 40;

(b) in respect of the slum rehabilitation area declared

under section 3C of the Maharashtra Slum Areas (Improvement,

Clearance and Redevelopment) Act, 1971, the Slum

Rehabilitation Authority appointed under section 3A of the said

Act;]”

Section 31 - Sanction to draft Development plan

(1) Subject to the provisions of this section, and not

later than [twelve months] from the date of receipt of such plan

from the Planning Authority, or as the case may be, from the said

Officer, [ * * *] the State Government may, after consulting the

Director of Town Planning by notification in the Official Gazette

sanction the draft Development plan submitted to it for the whole

area, or separately for any part thereof, either without

modification, or subject to such modifications as it may consider

proper or return the draft Development plan to the Planning

Authority or as the case may be, the said Officer for modifying

the plan as it may direct or refuse to accord sanction and direct

the Planning Authority or the said Officer to prepare a fresh

Development plan:

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[Provided that, the State Government may, if it thinks

fit, whether the said period has expired or not, extend from time

to time, by notification in the Official Gazette, the period for

sanctioning the draft Development plan or refusing to accord

sanction thereto, by such further period as may be specified in

the notification:]

[Provided further that, where the modifications

proposed to be made by the State Government or submitted by

the Planning Authority under section 30 and proposed to be

approved by the State Government without any further change

are of a substitutional nature with respect to the draft

Development plan published under Section 26, the Government

shall publish a notice in the Official Gazette and also in not less

than two local newspapers inviting objections and suggestions

from any person in respect of the proposed modifications within

a period of one months, from the date of such notice]:

……..

……..

“(6) A Development plan which has come into operation

shall be called the “final Development plan” and shall, subject to

the provisions of this Act, be binding on the Planning Authority.”

“38.Revision of Development Planning.

At least once in [twenty years] from the date on

which a Development plan has come into operation, and where a

Development plan is sanctioned in parts, then at least once in

[twenty years] from the date on which the last part has come into

operation, a Planning Authority may [and shall at any time when

so directed by the State Government], revise the Development

Plan [(either wholly, or the parts separately)] after carrying out, if

necessary, a fresh survey and preparing an existing land-use map

of the area within its jurisdiction, and the provisions of sections

[* * *] 22, 23, 24, 25, 26, 27, 28, [* * *], 30 and 31 shall, so far as

they can be made applicable, apply in respect of such revision of

the Development Plan.”

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“126. Acquisition of land required for public purposes specified in

plans

(1) When after the publication of a draft Regional

plan, [structure 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 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

(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 lessors interest to be determined by any of the said

Authorities concerned [on the basis of the principles laid

down in the Right to Fair Compensation and Transparency in

Land Acquisition, Rehabilitation and Resettlement Act,

2013], 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 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 in application to the State Government for

acquiring such land [under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013] ,

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 provisions of

the Right to Fair Compensation and Transparency in Land

Acquisition, Rehabilitation and Resettlement Act, 2013], as the

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case may be, shall vest absolutely 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 [if the State

Government (except in cases falling under section 49 [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 19 of the Right to Fair Compensation

and Transparency in Land Acquisition, Rehabilitation and

Resettlement Act, 2013], in respect 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

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 19],

the Collector shall proceed to take an order for the acquisition of

the land under the said Act; and the provisions of that Act shall

apply to the acquisition of the said land with the modification that

the 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 ;

(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 an

undeveloped area ; and

(iii) in any other case, the market value on the date of

publication of the interim development plan, the draft

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development plan or the plan for the area or areas for

comprehensive development, whichever is earlier, or as the

case may be, the date or publication of the draft Town

Planning Scheme :

Provided that, nothing in this sub-section shall affect

the 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 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.]

[(4) [Notwithstanding anything contained in the proviso to sub-

section (2) and sub-section (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,

1993], the State Government may make a fresh declaration for

acquiring the land [under the provisions of the Right to Fair

Compensation and Transparency in Land Acquisition,

Rehabilitation and Resettlement Act, 2013], 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.]”

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 [or if a

declaration under sub-section (2) or (4) of section 126 is not

published in the Official Gazette within such period, the owner or

any person interested in the land may serve notice, along with the

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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

[twenty-four 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.

[(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.]”

11. The much debated question that falls for our consideration is

framed as under :-

‘

whether the sanction of the revised development plan, imposing a fresh

reservation, after the receipt of the purchase notice, and before the expiry

of the prescribed period of two years from the date of service of such

notice, would continue the reservation for a further period of ten years?’

We have formulated the above issue, keeping in mind that the

law on sanctioning a revised development plan, prior to the service of the

purchase notice, and also after the expiry of the prescribed period from the

date of service of such notice under Section 127(1) of the MRTP Act, 1966,

is no longer res integra [

Prafulla C. Dave vs. Municipal Commissioner (2015)

11 SCC 90].

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12. It is, thus, well settled that there is no vested right in an owner

of the land or a person interested in the land to seek lapsing of reservation.

A claim for lapsing would get converted into a right, only after all the

requisites u/s 127 are satisfied. In short, the said claim for lapsing of

reservation would assume the character of a right, only after the

requirements under section 127 are satisfied.

13. The Division Bench (herein after ‘The Referring Bench’) had

noticed a conflict of views between the Division Benches of this Court,

and vide the order dated 29

th

July 2024, expressed a view that the Hon’ble

The Chief Justice of the Bombay High Court may consider referring the

matter to a bench of 3 Judges. Since no issues as such were framed, the

proceedings have been referred to our Bench for a decision, under Chapter

I, Rule 8 of the 1960 Rules.

14. On perusing of view of the Referring Bench and the

judgments cited, We observe that the view of the Full Bench of this Court

in Vishwas Bajirao Patil (supra), was never brought to the notice of the

Division Benches, which observation is shared by the Referring Bench in

it’s reference order. Nevertheless, there is no dispute before us that the

Petitioner admits that the period of 2 years (24 months) from the date of

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the issuance of the purchase notice u/s 127, would have expired on 16

th

November, 2017.

15. In the above backdrop, the question is, what would be the fate

of the purchase notice when the revised development plan was finalised by

the State on 23/05/2016, which is after the amendment introducing the 24

months period instead of the 12 months. Even otherwise, the revised

development plan was finalised within 12 months from the date of receipt

of the purchase notice, which is 17/11/2015.

16. In Prafulla C Dave (supra), the Hon’ble Supreme Court has

crystallised the law that, if the revised development plan is finalised u/s 38

before the issuance of the purchase notice, the reservation get a new lease

of life of 10 years and the owner is precluded from issuing a purchase

notice within 10 years from the date of the finalisation of the revised

development plan. It is also crystallised that if the revised development

plan is sanctioned after two years from the receipt of the purchase notice,

the reservation would stand lapsed. It is also trite law that an owner of

the land under reservation or any person having interest, would have no

vested right towards lapsing of reservation, until the passage of 24 months

from the receipt of the purchase notice.

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17. Section 38 clearly permits revision in the development plan,

once in 20 years. In the facts of the case before us, there was no revision in

the 20 years preceding the revision on 23/05/2016. Section 38 of the MRTP

Act, 1966 cannot be rendered nugatory or itiose. What is permissible in

law cannot be obliterated. The Council had adhered to section 38 when the

draft development plan was submitted to the State which finally revised the

plan on 23/05/2016. This revision cannot be faulted, much less, legally.

Under section 38, the Planning Authority has the freedom and liberty to

revise the Development Plan by following the procedure under the Act. It

can proceed to continue the reservation over the concerned land, either for

the same purpose or for any other purpose, which change is not legally

barred. The said land, therefore, continues to be under reservation and at no

stage can such reservation be said to have auto-lapsed. In the present case,

the purpose for the reservation is not changed, though any change would

not have inured to the advantage of the Petitioner.

18. In Writ Petition No.9610 of 2019 (Vinod Ramnarayan

Agrawal And Others V/S. The State of Maharashtra And Others) decided

by the Aurangabad Bench on 24

th

April 2023, the issue of filing of a Writ

Petition seeking issuance of the Writ of Mandamus to declare the lapsing

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of reservation, was dealt with. Noticing that the Writ Petition was filed

before the expiry of the two years from the issuance of the notice, it was

held that such a Petition was premature and deserved to be dismissed. The

relevant conclusions are found in paragraphs 15, 16 and 17, which read as

under :-

“15. However, the notice under Section 127(1)

was issued on 07.09.2017 and the petition has been filed

on 04.07.2019 that is within 24 months of the date of

notice. By virtue of the amendment in Section 127 which

came into effect from 29.08.2015 vide Section 7 of the

Maharashtra Act 42 of 2015 a period of 24 months from

the date of service of the notice has been kept as a

window for the planning authority to take steps towards

acquisition. It is trite that this statutory period is

mandatory and the decisions are in plenty.

16. In the matter of Prafulla C. Dave (Supra)

which has been referred to and relied upon by a full

bench of this Court in the matter of Madanlal Zumberlal

Nahar and others Vs. The Chief Officer Municipal

Council Beed and others, in Writ Petition 2260/2010 with

WP 4232/2008 decided on 13.03.2023, though in a little

different context, this period has been held to be

mandatory.

17. Pertinently, in the matter of Hasmukhrai

(supra), the period that was consumed by way of

pendency of the petition was held to be entitled to be

considered by way of tagging to this statutory period.

However, in the matter of Chhabildas (supra), it has been

emphatically held that the decision in the matter of

Hasmukhrai and even a similar view taken by the

Supreme Court in the matter of Chhabildas was in

exercise of the powers under Article 142 of the

Constitution which powers the High Courts does not

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have. Therefore, when the petition has been filed on

04.07.2019, even before expiry of 24 months of service

of notice under Section 127 on 07.09.2017 as is appearing

on acknowledgment in the copy of the notice (Exh. ‘D’),

we are afraid, the petitioners are not entitled to seek any

declaration regarding lapsing of reservation.”

19. The Hon’ble Supreme Court has crystallised the law in

Prafulla C Dave (refer to paragraph no. 21 of the said judgment

reproduced herein above) that, if

‘a revised plan under Section 38 comes

into effect, before the issuance of the notice u/s 127, the period of ten years

under Section 127 has to get a fresh lease of life of another ten years. To

deny such a result would amount to putting a halt on the operation of

Section 38 and rendering the entire of the provisions with regard to

preparation and publication of the revised plan, otiose and nugatory. In this

regard it cannot be overlooked that under Section 38 a revised plan is to be

prepared on the expiry of a period of 20 years from date of coming into

force of the approved plan under Section 31 whereas Section 127

contemplates a period of 10 years with effect from the same date for the

consequences provided for therein to take effect. The statute, therefore,

contemplates the continuance of a reservation made for a public purpose in

a final development plan beyond a period of ten years. Such continuance

would get interdicted only upon the happening of the events contemplated

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by Section 127 i.e. giving/service of notice by the landowner to the

authority to acquire the land and the failure of the authority to so act. It is,

therefore, clear that the 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 landowner or the person interested

himself remains inactive, the provisions of the Act dealing with the

preparation of revised plan under Section 38 will have full play. …...’

20. The decision of the Full Bench of this Court in

Vishwas

Bajirao Patil (placing reliance upon Prafulla C Dave) clears all doubts

about the creation of the right to seek lapsing of reservation. The Full

Bench has concluded that

no right is vested in a person having an interest

in the land by merely serving a notice as contemplated under Section 127

of MRTP Act. Such right would vest in the landowner upon the expiry of

the period of one year from the date of issuance of such notice

. This period

of one year is now amended and extended to two years. The Full Bench

answered the reference by concluding that the right would have vested

upon the expiry of one year (now read as two years) of the notice. As such,

there is no right created in favour of the noticee till the expiry of two years.

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21. Considering the law as it stands today, we conclude as under :-

a) no right for lapsing of reservation is vested in the owner

purely on the issuance of the purchase notice u/s 127, until the

passage of 24 months from the date of service of the notice.

b) as a consequence of the above, a Writ Petition seeking

issuance of a Writ of Mandamus or an order or direction to declare

the lapsing of the reservation, cannot be filed until the expiry of 24

months from the date of receipt of the purchase notice u/s 127.

c) in view of the dictum of the Hon’ble Supreme Court in

Prafulla Dave (supra), if the revised final development plan is

effected by strict compliance of section 38, after the receipt of the

purchase notice and prior to the expiry of 24 months, the

reservation shall continue for a further period of 10 years and only

after the expiry of the 10 years, can the owner or the interested

party issue a fresh purchase notice u/s 127.

22. As a consequence of the above, we record that the view

expressed by the Division Bench of this Court in

Salim Nizam Sanadi

(supra) and Shri. Amuksidha Shrikant Majge (supra), lay down the correct

position of law.

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23. Pursuant to our aforestated conclusion, the prayers put forth in

this Petition by the Petitioner are devoid of merit and this Writ Petition,

therefore, dismissed.

24. Rule is discharged.

[RAVINDRA V. GHUGE, J.]

[SANDEEP V. MARNE, J.]

[ABHAY J. MANTRI, J.]

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