THE KOLHAPUR MUNICIPAL CORPORATION & ORS. versus VASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS. on 14 February 2022

[2022] 16 S.C.R.

ATHE KOLHAPUR MUNICIPAL CORPORATION & ORS.

v.

VASANT MAHADEV PATIL (DEAD) THROUGH L.R.S & ORS.(Civil Appeal No. 510 of 2022)

BFEBRUARY 14, 2022

[M. R. SHAH AND B. V. NAGARATHNA, JJ.]

Right to Fair Compensation and Transparency in LandAcquisition, Rehabilitation and Resettlement Act, 2013 – s.19 –Maharashtra Regional and Town Planning Act, 1966 – ss.126, 127C– Land Acquisition Act, 1894 – ss.4, 6, 11 – Different portions ofthe land reserved in the sanctioned development plan for variouspublic purposes – Land owned by the writ petitioners-respondentnot acquired and/or used for which the same was reserved underthe plan – Notice served by the land owners u/s. 127 of the MRTPDAct – Submission of proposal by the Municipal Corporation-appellant to the State Government for compulsory acquisition ofthe said property – Direction by the District Collector to the appellantto deposit the compensation amount before the acquisitionprocedure u/s. 4, 6 and 11 of the 1894 Act – Subsequently, onenactment of the Act of 2013, the Special Land Acquisition OfficerEdirected the appellant to deposit the compensation amount, howeversince the appellant was not in a financial position to pay such ahuge amount, it requested the landowners to accept the TransferableDevelopment Rights-TDR in lieu of compensation amount and thesame was accepted – Meanwhile, the Land Acquisition OfficerFinformed the appellant to deposit part of the total amount ofcompensation and that the land under reservation fell within theflood affected area and thus, the compensation amount was reduced– As per the appellant, before the TDR proposal could be considered,development work was to be carried out upon the said reservedland for making it suitable for the public purpose – However, theGlandowners did not agree to avail of the TDR and filed writ petitionseeking directions to the appellants to publish a final notificationu/s. 126(2) and (4) of the MRTP Act r/w s.19 of the Act of 2013;and deposit the compensation amount – High Court directed theSpecial Land Acquisition Officer to communicate to the MunicipalHCorporation the amount which is required to be deposited by them

as a condition precedent for issuing a declaration u/s. 19 of thesaid Act of 2013 – Appellants then filed writ petition seeking directionto the respondents to accept the TDR in lieu of compensation –High Court rejected their claim as respondents were not consentingto accept the TDR – On appeal, held : Land had not been acquiredfor ten years despite the writ petitioners having issued a purchasenotice dated 02.01.2012 u/s. 127 of the MRTP Act for acquisitionof the reserved area – Mere Resolution being passed by the GeneralBody of the Corporation to acquire the land and sending a letter tothe Collector to acquire the land, without any further steps beingtaken under the Land Acquisition Act, namely no declaration u/s. 6, would result in the reservation as deemed to have lapsed – Merepassing of a Resolution and/or making a budgetary provision forpayment of the compensation in the budget cannot be said to betaking steps as contemplated u/s. 127 of the MRTP Act – Thus,once by operation of law, the reservation is deemed to have lapsed,it is lapsed for all purposes and for all times to come – No furtherwrit of mandamus could have been issued by the High Court toacquire the land and thereafter pay the compensation to thelandowners – Furthermore, no Corporation/Planning Authority canbe compelled to acquire the land which according to theCorporation/Planning Authority is not suitable and/or usable forthe purposes for which it is reserved – Any other interpretationwould lead to colourable and fraudulent exercise of power andcause financial burden on the public exchequer – Moreover, in caseof grant of TDR, before the High Court, the landowners specificallyfiled the affidavits stating that they do not wish to avail of TDR andtheir only prayer before the High Court was to acquire the landand to pay them the compensation – Thus, now it is not open for thelandowners to pray for the TDR in respect of the land in question –Principle of approbate and reprobate equally applicable to thelandowners also – Thus, the land once found to be usable and/orsuitable for the purposes for which it has been reserved, theCorporation cannot still be compelled and directed to acquire theland and grant TDR in lieu of amount of compensation – Orderpassed by the High Court directing the appellant to issue adeclaration u/s. 19 and consequently to acquire the land and topay the compensation to the landowners quashed and set aside.

AB

C

D

EF

G

AAllowing Civil Appeal No. 510 of 2022 and partly allowingCivil Appeal No. 511 of 2022, the Court HELD: 1. 1 At the time of preparing the Development Planand keeping a particular land reserved for a particular publicpurpose, an important duty is cast upon the Planning AuthorityBto first satisfy that the land reserved which thereafter has to beacquired on payment of compensation is very much suitable andusable for that public purpose. In the instant case, how the area,which is a flood affected area and through which a rivulet named‘Jayanti Nala’ passes can be kept under reservation for a particularpublic purpose and can be used for public purposes like parkingCand/or for widening of the road etc.? Therefore, while preparingthe Development Plan and reserving and/or designating aparticular land for a particular public purpose, great care andcaution is to be exercised by the Planning Authority. As per Section125 of the Act, any land required, reserved or designated in aDDevelopment plan or Town Planning Scheme for a public purposeor purposes including plans for any area of comprehensivedevelopment or for any new town shall be deemed to be landneeded for a public purpose within the meaning of the LandAcquisition Act, 1894. Hence, all the parameters concerning thesuitability of the land for the particular public purpose for whichEthe land is to be reserved and acquired for utilization must beborne in mind as a factor of paramount importance. [Para 9.5][385-A-D]

1.2. Section 126 of the MRTP Act provides that where afterthe publication of a draft Regional plan, a Development or anyFother plan or town planning scheme, any land is required orreserved for any of the public purposes specified in any plan orscheme under MRTP Act at any time, the Planning Authority,Development Authority, or as the case may be, any AppropriateAuthority has to acquire the land as provided under SectionsG126(1)(a), (b) or (c) by making an application to the StateGovernment for acquiring such land under the Land AcquisitionAct, 1894 (now it would be the Act of 2013). On receipt of suchapplication by the Planning Authority/Development Authority tothe State Government for acquiring such land under the LandAcquisition Act, 1894, the procedure as contemplated andH

required under Sections 126(2) to 126(4) shall have to be followed.Section 127 of the MRTP Act further provides that if any landreserved, allotted or designated for any purpose specified in anyplan under MRTP Act is not acquired by agreement or otherwisewithin ten years from the date on which a final Regional Plan, orfinal Development Plan comes into force or if a declaration undersub–section (2) or (4) of Section 126 is not published in the OfficialGazette within such period (ten years), the owner or any personinterested in the land may serve a notice to the Planning Authority,the Development Authority or, as the case may be, the AppropriateAuthority to purchase the land reserved. If within twelve monthsfrom the date of the service of such notice, the land is not acquiredor no steps are commenced for its acquisition, the reservation,allotment or designation shall be deemed to have lapsed, andthereupon, the land shall be deemed to be released from suchreservation, allotment or designation and shall become availableto the owner for the purpose of development as otherwise,permissible in the case of adjacent land under the relevant plan.Sub–section (2) of Section 127 further provides that on lapsing ofthe reservation, allocation or designation of any land under sub–section (1), the Government shall notify the same, by an orderpublished in the Official Gazette. [Para 10.1][388-E-H; 389-A-C]

1.3. If the land reserved under the draft Development Plan/Development Plan is not acquired within a period of ten yearsform the date of final Development Plan and thereafter after expiryof ten years, the landowners serve a purchase notice andthereafter within a period of one year, no steps are taken to acquirethe land, the reservation/allocation is deemed to have lapsed andthe land stand released from such reservation/allocation.Declaration under Section 6 of the Act of 1894 can be said to betaking steps as contemplated under Section 127 of the MRTPAct. After the enactment of the Act of 2013, the declaration underSection 6 of the Act of 1894 is now to be read and/or is substitutedby declaration under Section 19 of the Act of 2013. Therefore, ifwithin a period of one year from the date of receipt of purchasenotice as per Section 127, a declaration under Section 19 of theAct, 2013 is not issued and the land is not acquired, thereservation/allocation under the Development Plan is deemed ABC

D

E

F

G

H

Ato have lapsed and the land is released from such reservation/allocation. [Para 11][393-C-F]

1.4. The first Development Plan under which the originalwrit petitioners’ land was reserved for public purposes was inthe year 1976. Thereafter the second amended Development PlanBwas published on 18.12.1999 and came to be implemented from01.02.2000, under which also the land of the original writpetitioners was reserved for public purposes. But the same hadnot been acquired for ten years despite the respondents – originalwrit petitioners having issued a purchase notice dated 02.01.2012under Section 127 of the MRTP Act for acquisition of the reservedCarea. A mere Resolution being passed by the General Body ofthe Corporation to acquire the land and sending a letter to theCollector to acquire the land, without any further steps beingtaken under the Land Acquisition Act, namely no declarationunder section 6 thereof being issued within a period of one yearDfrom the receipt of the said purchase notice, would result in thereservation as deemed to have lapsed. [Para 11.1][393-F-H; 394-A-B]

1.5. In the instant case, the High Court issued a writ ofMandamus directing the Corporation to issue a declaration underESection 19 of the Act of 2013 mainly on the ground that the GeneralBody of the Corporation had passed a Resolution dated18.02.2012 resolving that the land in question is required to beacquired and the same is needed for the purpose for which it hasbeen reserved. However, mere passing of a Resolution and/ormaking a budgetary provision for payment of the compensationFin the budget cannot be said to be taking steps as contemplatedunder section 127 of the MRTP Act. Therefore, once thereservation of land under the Development Plan is deemed tohave lapsed by operation of law and it is released from reservation,no writ of Mandamus could have been issued by the High CourtGdirecting the Corporation to still acquire the land and to issue adeclaration under Section 19 of the Act of 2013 (as in themeantime, the Land Acquisition Act, 1894 has been repealed andAct of 2013 has been enacted). [Para 12][394-B-E]

THE KOLHAPUR MUNICIPAL CORPORATION v. VASANT MAHADEV

PATIL (DEAD) THROUGH L.R.S

1.6. Notification in the Official Gazette is only aconsequential act and it has nothing to do with the actual lapsingof reservation by operation of law as the reservation is deemedto have lapsed under Section 127(1). Thereafter issuance of thenotification of lapse of the reservation of land is only a proceduralact and non-issuance of such a notification in the Official Gazettewith respect to lapse of the reservation, allocation or designationwould not affect the lapse of the reservation under Section 127(1)of the MRTP Act. [Para 13][394-F-G]

1.7. Once the reservation with respect to the land inquestion was deemed to have lapsed, no further writ of mandamuscould have been issued by the High Court to acquire the landand thereafter pay the compensation to the landowners, as onthe lapse of the reservation, the land in question is free fromreservation and the landowners can use it as if there is noreservation, however, subject to provisions of the MRTP Act.[Para 14][394-G-H; 395-A]

1.8. In the facts and circumstances of the case, the HighCourt had erred and/or the High Court was not justified indirecting the Municipal Corporation to acquire the land in questionand to issue a declaration under Section 19 of the Act of 2013 andto pay compensation under the Act of 2013. It is to be noted thatright from the very beginning it was stated in the counter beforethe High Court that the land in question was not suitable and/orusable for the purposes for which it has been reserved. It wasspecifically pointed out that the subject land is flood affectedthrough which a rivulet named ‘Jayanti Nala’ passes, making itunsuitable for the public purposes for which it was reserved. Itwas also specifically pointed out that unless and until thesubstantial development is carried out, the land in question isnot usable at all. It was also specifically pointed out that thereserved area is coming within High Flood Line and every yearfor a period of fifteen days to one month, the said area gets floodedduring rainy season. In that view of the matter, the High Courtought not to have directed the Corporation to still acquire theland and pay the compensation to the original landowners thoughthe land in question is unsuitable and unusable for the public ABC

D

EF

G

H

Apurposes for which it has been reserved. As such at the timewhen the planning was made and the land in question was putunder reservation for public purposes, a duty was cast upon thePlanning Officer to consider whether the land, which will have tobe acquired and for which the compensation is to be paid is reallysuitable and/or usable for the public purposes for which it isBreserved. Otherwise, every landowner will see to it that thoughhis land is not suitable and/or not very valuable, is put underreservation and the same is acquired by the Corporation and/orthe Planning Authority and thereafter he is paid the compensation.No Corporation and/or the Planning Authority and/or theCAppropriate Authority can be compelled to acquire the land whichaccording to the Corporation/Planning Authority is not suitableand/or usable for the purposes for which it is reserved. Any otherinterpretation would lead to colourable and fraudulent exerciseof power and cause financial burden on the public exchequer.[Para 15][395-A-G]D

1.9. It is required to be noted that in fact there was a validreason for the Corporation not to go ahead with the acquisition.Under the Act of 2013, the Corporation was required to pay ahuge sum of Rs. 77,65,12,000/- by way of compensation underthe Act of 2013. According to the Corporation, when the entireEannual budget for acquisition was Rs.21 crores, it was beyondtheir financial position and/or budgetary provision to pay such ahuge compensation, that too, for the land which is not suitableand/or useable for the purposes for which it has been reserved.It may be true that under the MRTP Act, in the DevelopmentFPlan, the Planning Authority and/or the Appropriate Authorityhas to make the provisions for the public purposes mentioned inClauses (b) and (c) of Section 22 and sub-section (5) of Section31 of the MRTP Act and that is also desired for an appropriateplanning of a city and therefore the financial constraint cannot be

the sole consideration to acquire the land for the purposes forGwhich it has been reserved namely public purposes. However, atthe same time, when such a huge amount of compensation is tobe paid and there would be a heavy financial burden, which assuch is beyond the financial capacity of the Corporation, such afinancial constraint can be said to be one of the relevantHconsiderations, though not the sole consideration before embarking upon reservation of a particular extent of land fordevelopment. Even otherwise, in the facts and circumstances ofthis case, when land is found to be unsuitable and unusable forthe purposes for which it has been reserved, Corporation cannotbe compelled to pay a huge compensation for such a useless andunsuitable land. [Para 16][395-G-H; 396-A-E]

1.10. On the principle of approbate and reprobate, it iscontended by the landowners that the Corporation cannot nowbe permitted to deny TDR to the original landowners, the Courtobserves that first of all, it is required to be noted that the saidprinciple of approbate and reprobate would be equally appliableto the landowners also. Before the High Court, the originallandowners specifically filed the affidavits that they do not wishto avail of TDR and their only prayer before the High Court wasto acquire the land and to pay them the compensation. Therefore,now it is not open for the respondents – original landowners topray for the TDR in respect of the land in question. [Para 17][396-F-H]

1.11. Even otherwise, a landowner is entitled to TDR inlieu of compensation with respect to the land reserved providedthe land to be acquired is suitable and/or usable by theCorporation. Once it is found that the land is not usable and/orsuitable for the purposes for which it has been reserved, theCorporation cannot still be compelled and directed to acquirethe land and grant TDR in lieu of amount of compensation. Clause11.2.3 of the Unified Development Control and PromotionRegulations, 2020 Regulations states that it shall not bepermissible to grant TDR for existing nallah, river, natural stream,natural pond, tank, water bodies etc. and reservations which arenot developable under the provisions of UDCPR, 2020.Therefore, the prayer of the respondents to grant them TDR isrejected. [Para 17.1, 17.2][397-A-C, F-G]

1.12. The impugned judgment and order passed by the HighCourt directing the appellant Corporation to issue a declarationunder Section 19 of the Act of 2013 and consequently to acquirethe land in question and to pay the compensation to therespondents-original landowners as per the provisions of Act of2013 is quashed and set aside. Consequently, the original Writ AB

C

D

EF

GH

APetition before the High Court filed on behalf of the originallandowners is dismissed. [Para 18]12[397-G-H; 398-A]

1.13. As regards, Civil Appeal No. 511 of 2022 thereservation of the land for the public purposes for which it wasreserved is deemed to have lapsed. [Para 19][398-B-C]

B

Girnar Traders v. State of Maharashtra and Ors. (2007)7 SCC 555 : [2007] 9 SCR 383; Shrirampur MunicipalCouncil, Shrirampur v. Satyabhamabai BhimajiDawkher and Ors. (2013) 5 SCC 627 : [2013] 2 SCR664; Chhabildas v. State of Maharashtra and Ors.(2018) 2 SCC 784 : [2018] 1 SCR 411 – relied on.

C

Mumbai International Airport Private Limited v. GoldenChariot Airport & Anr. (2010) 10 SCC 422 : [2010] 12SCR 326; Joint Action Committee of Air Line Pilots’Association of India (ALPAI) and Ors. v. DirectorGeneral of Civil Aviation and Ors. (2011) 5 SCC 435 :[2011] 5 SCR 1019; Karam Kapahi and Ors. v. LalChand Public Charitable Trust and Anr. (2010) 4 SCC753 : [2010] 4 SCR 422; Municipal Corporation ofGreater Mumbai and Ors. v. Hiraman SitaramDeorukhar and Ors. (2019) 14 SCC 411 – referred to.

D

E

From the Judgment and Order dated 13.08.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 5310 of 2018.

With

Civil Appeal No. 511 of 2022.

Ms. Aparajita Singh, Sr. Adv., Shivaji M. Jadhav, Anish R. Shah,Brij Kishor Sah, Ms. Qurratulain, Aditya S. Jadhav, Advs. for theAppellants.

Chander Uday Singh, Sr. Adv., Abhay Anil Anturkar, AmjidMaqbool, Tanaji Mhatugade, Vaibhav Kulkarni, HarshvardhanSuryavanshi, Ms. Bhavya Pande, Dhruv Tank, Dr. R. R. Deshpande,M/s Dr. R. R. Deshpande and Associates, Ms. Yugandhara Pawar, RahulChitnis, Sachin Patil, Aaditya A. Pande, Geo Joseph, Ms. Shwetal Shepal,Amit, Maneesh Saxena, Vipin Kumar Saxena, Ms. Kajal Rani, Advs.for the Respondents.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 13.08.2018 passed by the High Court of Judicature atBombay in Writ Petition No.5310 of 2018 by which the Division Benchof the High Court has allowed the said writ petition preferred by theprivate respondents herein – original writ petitioners and has issued thewrit of Mandamus directing the appellants – Kolhapur MunicipalCorporation and others to acquire the land in question and to issue adeclaration under Section 19 of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitation and Resettlement Act,2013 (hereinafter referred to as “Act of 2013”), Kolhapur MunicipalCorporation and others have preferred the present Civil Appeal No. 510of 2022.

1.1 In the aforesaid Writ Petition No.5310 of 2018 after thejudgment was delivered on 13.08.2018, the Kolhapur MunicipalCorporation preferred one further Civil Application No.2461 of 2018 inWrit Petition No. 5310 of 2018 for appropriate order directing the originalwrit petitioners to accept the TDR in lieu of monetary compensation,which has been rejected by the High Court by order dated 10.12.2018.The same is the subject matter of the present Civil Appeal No.511 of2022 preferred by the Kolhapur Municipal Corporation.

2. The facts leading to the present appeal in a nutshell are asunder:- A

B

C

DEF

G

H

A2.1 The dispute is with respect to the land bearing R. S. No. 138,ad-measuring 3 Hectors and 65 Ares, situated at E ward, Near NewPalace, Kolhapur owned by the original writ petitioners. The developmentplan for the City of Kolhapur was sanctioned on 18.12.1999. Differentportions of the land in question were reserved in the sanctioneddevelopment plan for various public purposes namely, parking, garden,Bextension of sewage treatment plant etc. That as the land in questionwas not acquired and/or used for the public purposes for which thesame was reserved under the sanctioned development plan, the originalwrit petitioners – landowners served a notice under Section 127 of theMaharashtra Regional and Town Planning Act, 1966 (hereinafter referredCto as the “MRTP Act”) on 02.01.2012.

A

2.2 By Resolution dated 18.02.2012, the General Body of theMunicipal Corporation resolved to acquire the said property andaccordingly on 17.04.2012, a proposal was submitted by the MunicipalCorporation to the State Government for compulsory acquisition of theDsubject property. The District Collector passed an order dated 07/09.07.2012 directing that the proposal for acquisition be transferred tothe Special Land Acquisition Officer (11), Kolhapur for necessary action.By the said order, the Corporation was directed to deposit 25% of theamount before publication of the notification under Section 4 of the LandAcquisition Act, 1894 (hereinafter referred to as “Act of 1894”), 25%Eof estimated compensation amount before the publication of a declarationunder Section 6 of the Act of 1894 and remaining 50% of the estimatedcompensation amount before the declaration of award under Section 11of the Act of 1894.

2.3 That on enactment of the Act of 2013, the Land AcquisitionFAct, 1894 came to be repealed. Therefore, the land in question wassubjected to the provisions of the Act of 2013. The Special LandAcquisition Officer directed the Corporation to deposit the amount ofRs.77,65,12,000/- towards compensation vide its letter dated 06.10.2015in order to issue necessary orders as per Section 19 of the Act of 2013.GIt appears that the Corporation was not in a financial position to paysuch a huge compensation amount and so by letter dated 17.03.2016requested the original writ petitioners – landowners to accept theTransferable Development Rights (TDR) in lieu of compensation amountas per the Development Control Rules of the Corporation. The originalwrit petitioners also at the relevant time accepted the said proposal andH

submitted an application dated 12.05.2017 for grant of TDR. In themeantime, the Special Land Acquisition Officer by its letter dated22.09.2016 informed the Municipal Corporation to deposit 30% of thetotal amount of compensation and also informed that the land underreservation fell within the flood affected area due to its proximity to‘Jayanti Nala’ and considering the valuation of the said area as per themarket value of 2016-l7(A.S.R.), the amount of compensation wasreduced from Rs. 77,65,12,000/- to Rs. 43,41,29,400/-.

2.4 It appears that there was some correspondence between theoriginal writ petitioners and the Corporation with respect to the TDRproposal. According to the Corporation, the grant of TDR was alwayssubject to the provisions of the Development Control Rules and furthersubject to satisfying the conditions mentioned in the said Rules. Accordingto the Municipal Corporation as per the Development Control Rules,any owner before the grant of TDR will have to surrender the landunder reservation by carrying out necessary developments according toprevailing Byelaws at his own cost and free of encumbrances. Accordingto the Corporation, the reserved area was coming within High FloodLine and every year for a period of fifteen days to one month, the saidarea gets flooded during rainy season. According to the Corporation, thereserved land/area is flood affected and a rivulet named ‘Jayanti Nala’passes through the said area under reservation. Therefore, as per theCorporation, before the TDR proposal could be considered, it wasnecessary to carry out the required development work upon the saidreserved land for making it suitable for the public purpose as per thereservation, to be carried out by the original writ petitioners – landowners.According to the Corporation, if the said developments are not done, theland under reservation will not be able to be utilized for the purpose forwhich it is reserved. There were various correspondences between theparties. However, thereafter the writ petitioners did not agree to avail ofthe TDR and the original writ petitioners – landowners filed present writpetition before the High Court and prayed for the following reliefs:- a.Rule be issued and records and proceedings be called for; b.That this Hon’ble Court may be pleased to issue writ ofmandamus and/ or any other appropriate writ, order ordirection in the nature of writ of mandamus thereby directingthe Respondent No. 1 and 2 to forthwith publish a finalnotification under sub section (2) and (4) of the Sec. 126 of A

B

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G

H

370SUPREME COURT REPORTS

Athe M.R.T.P. Act read with Sec. 19 of the Right to FairCompensation and Transparency in Land Acquisition,Rehabilitation, and Resettlement Act; 2013;

c.That this Hon’ble Court may be pleased to issue writ ofmandamus and/or any other appropriate writ, order orBdirection in the nature of writ of mandamus thereby directingthe Respondent No. 3 Corporation to forthwith deposit theamount of compensation i.e. Rs. 77,64,12000/- with theRespondent No. 2 and 7 and further the Respondent No. 2and 7 may be directed to forthwith release the said amountof compensation to the Petitioners;C

d.Such further and other order be made as this Hon’ble Courtmay deem fit and proper in the interest of justice and in thefacts and circumstances of the case.

2.5 The said petition was vehemently opposed by the MunicipalDCorporation. An affidavit in reply opposing the writ petition was filed onbehalf of the original respondent No.6 – Municipal Corporation and others.It was vehemently submitted that the reservation has lapsed in view ofSection 127 of the MRTP Act. It was also submitted that it is not possiblefor the Corporation to acquire the land on payment of huge sum ofRs.43,41,29,400/-. It was submitted that it was beyond the financialEcapacity of the Corporation to pay such a huge compensation and it wasbeyond their budgetary provision and had grave financial implication. Itwas also pointed out that even the TDR proposal had not been materializedas the original writ petitioners were not agreeable to fulfill their obligationsfor grant of TDR as per Development Control Rules. It was alsoFspecifically pointed out that unless there is development carried out atthe cost of the original writ petitioners – landowners, it is not possible forthe Corporation to use the land for the purpose for which it is reserved.It was specifically pointed out that the land in question is a wet land andthat the area is flood affected and a rivulet named ‘Jayanti Nala’ passesthrough the said area under reservation. It was also specifically pointedGout that the reserved area is coming within the High Flood Line andevery year for a period of fifteen days to one month the said area getsflooded during the rainy season. Therefore, it was pointed out that it wasnecessary to carry out the required development work upon the saidreserved area for making it suitable for the purposes as per reservation.HIt was also pointed out that if the said developments are not done, the land under reservation shall not be able to be utilized for the purposes itis reserved.

A

2.6 Before the High Court, the original writ petitioners tenderedaffidavits dated 01.08.2018 and 07.08.2018 recording that they do notwish to avail of TDR (as observed by the High Court in paragraph No.5).Thereafter by the impugned judgment and order, the High Court hasdisposed of the writ petition and issued the following directions in exerciseof powers under Article 226 of the Constitution of India:- B

(i) We direct the Special Land Acquisition Officer (11),Kolhapur to communicate to the third respondent - MunicipalCorporation the amount which is required to be depositedCby the said Municipal Corporation as a condition precedentfor issuing a declaration under Section 19 of the said Act of2013. The communication demanding the amount shall beissued by the Special Land Acquisition Officer within onemonth from the date on which this judgment and order isDuploaded;

(ii) We may record here that there is no dispute about thereservation of the subject land in the sanctioned developmentplan and therefore, in view of the proviso to Section 125 ofthe MRTP Act, the acquisition under the said Act of 2013shall commence from the stage of declaration under sectionE19 thereof;

(iii) Within a period of two months from the demand for paymentmade by the Special Land Acquisition Officer as aforesaid,the third respondent shall deposit the requisite amount withthe Collector/Special Land Acquisition Officer; F

(iv) Within a period of one month from the date of deposit ofthe requisite amount by the third respondent, a declarationunder Section 19 of the said Act of 2013 shall be issued/published in accordance with law; G

(v) The acquisition proceedings shall be completed andcompensation shall be paid as expeditiously as possible inaccordance with law and in any case within a period of oneyear from the date on which the declaration under Section19 of the said Act of 2013 is published; H

A(vi)Writ petition is disposed of with the above directions;

(vii) For reporting compliance with the above directions by thethird respondent the petition shall be listed under the captionof directions on 26[th] November 2018.

2.7 While issuing the aforesaid directions, the High Court hasBobserved that as there was already a resolution passed by the GeneralBody of the Municipal Corporation to acquire the subject lands by takingrecourse to law of compulsory acquisition, therefore, there is no optionfor the Municipal Corporation but to acquire the said land by takingrecourse to the Act of 2013.

C

2.8 Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 13.08.2018 passed by the High court of Judicature atBombay in Writ Petition No.5310 of 2018, the Kolhapur MunicipalCorporation and others have preferred the present Civil Appeal No.510of 2022.

D

2.9 It appears that after the impugned judgment and order dated13.08.2018 passed by the High Court and after the above directionswere issued, the appellants – Kolhapur Municipal Corporation and othersfiled one Civil Application No.2461 of 2018 in Writ Petition No.5310 of2018 for modification of the judgment and order dated 13.08.2018 andEprayed for the direction to the original writ petitioners to accept theTDR in lieu of monetary compensation. It was also further prayed fordirecting that in the event of the failure of the Corporation to deposit theamount, the consequences under the MRTP Act, 1966 and the Act of2013 should follow. Both the aforesaid prayers were rejected by theHigh Court vide order dated 10.12.2018 by observing that the originalFwrit petitioners are not consenting to accept the TDR in lieu of monetarycompensation. The order dated 10.12.2018 passed in Civil ApplicationNo.2461 of 2018 in Writ Petition No.5310 of 2018 is the subject matterof present Civil Appeal No.511 of 2022.

3. Ms. Aparajita Singh, learned Senior Advocate appearing onGbehalf of the Corporation has vehemently submitted that in the facts andcircumstances of the case, the High Court has committed a grave errorin issuing a writ of Mandamus and directing the Corporation to acquirethe land in question and to pay the compensation to the original landownersby issuing a declaration under Section 19 of the Act of 2013.

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3.1 It is submitted that the High Court has not at all appreciatedthe fact that as such in the present case, in view of the provisions ofSection 126 r/w Section 127 of the MRTP Act, 1966, the reservation hadlapsed. It is submitted that once by operation of law, the reservation hadlapsed, no writ of Mandamus could have been issued directing acquisitionof the land for which it was reserved under the development plan.

3.2 It is submitted that in the present case, the subject land wasreserved under the Development Plan in the year 2001 and differentparts of the land were reserved for the purposes of garden, parking andextension of sewage treatment plant and 12 mtr DP Road. It is submittedthat it is an admitted position that for more than ten years, neither theland was acquired nor the declaration in relation to it was publishedunder Section 126(2) or (4) of the MRTP Act. It is submitted thatthereafter the respondents served a notice to the Corporation underSection 127 of the MRTP Act on 02.01.2012 requesting the Corporationto acquire the land. It is submitted that however, no steps were taken toacquire the land and the acquisition proceedings did not commence evenwithin twelve months from the date of service of such notice. It istherefore submitted that in view of Section 127 of the MRTP Act, ifwithin ten years from the date on which the final Development Plancomes into force and the land reserved is not acquired by agreement nora declaration under sub-section (2) or sub-section (4) of Section 126 hasbeen published in the Official Gazette and thereafter the landowner servesa notice to the Development Authority to acquire the land, and, if withintwelve months from the date of the service of such notice, neither theland is acquired nor steps are commenced for its acquisition, thereservation shall be deemed to have lapsed. Heavy reliance is placed onthe decision of this Court in the case of Girnar Traders Vs. State ofMaharashtra and Ors., (2007) 7 SCC 555, which has beensubsequently followed in the other decisions of this Court in the case ofShrirampur Municipal Council, Shrirampur Vs. SatyabhamabaiBhimaji Dawkher and Ors., (2013) 5 SCC 627 and ChhabildasVs. State of Maharashtra and Ors., (2018) 2 SCC 784.

3.3 It is therefore submitted that once the reservation is deemedto have lapsed, the original landowners cannot insist that still their landbe acquired and they be paid the compensation. In such a situation, evenneither a writ petition would be maintainable at the instance of thelandowners nor a writ of mandamus directing the Corporation to still AB

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Aacquire the land and pay the compensation can be issued. This isparticularly so when the reservation has lapsed.

3.4 It is further submitted by Ms. Singh, learned Senior Advocateappearing on behalf of the appellant Corporation that even otherwise inthe facts and circumstances of the case, the High Court ought not toBhave directed the Corporation to acquire the land for the purpose forwhich it was reserved and to pay the compensation to the originallandowners. It is submitted that the High Court has not at all appreciatedand/or considered the financial position of the Corporation and thefinancial constraint faced by the Corporation, if such a huge amount ofcompensation under the provisions of the Act of 2013 is to be paid by theCCorporation. It is submitted that the entire budget of the Corporation forland acquisition was only Rs.21 crores as against the compensation amountof Rs.62.5 crores payable in the present case. It is submitted thattherefore it is practically impossible for the Corporation to pay such ahuge amount of compensation for the land which as such is unsuitableDand not useable by the Corporation.

3.5 It is further submitted by the learned senior counsel on behalfof the Corporation that the High Court has therefore not at all advertedto the financial inability of the Corporation to acquire the land and theunsuitability of the land for the public purpose for which it was reserved.EIt is submitted that it was specifically pointed out that the land in questionis not at all suitable and/or usable for the purpose for which the samehas been acquired, namely parking, garden etc. It is submitted that itwas specifically pointed out that the subject land is flood affected throughwhich a rivulet named ‘Jayanti Nala’ passes, making it unsuitable/unusablefor the public purposes for which it was reserved. It is submitted thatFtherefore the original landowners cannot compel the Corporation toacquire the land, which as such is unsuitable/unusable and non-developedland. It is submitted that it was specifically pointed out before the HighCourt that the reserved area is coming within High Flood Line and everyyear for a period of fifteen days to one month, the said area gets floodedGduring rainy season. It is submitted that it was pointed out that unlessand until a major development work is carried out upon the said reservedland for making it suitable for the public purposes as per reservation, thelandowners cannot still say that the land must be acquired, whichotherwise is not suitable and/or usable. It is submitted that if such arequest of the original landowners is accepted, in that case, everyH

landowner, whose land is otherwise unsuitable and/or not usable will seeto it that with the connivance of the party in power and/or the persons inthe administration or management of the Corporation to reserve the landfor public purpose and thereafter compel the Corporation to acquire theland, which otherwise is unsuitable and/or not usable. It is submitted thatthe aforesaid aspect has not at all been considered by the High Courtthough it was specifically pointed out in the counter filed on behalf of theCorporation.

3.6 It is further submitted by Ms. Singh, learned Senior Advocateappearing on behalf of the Corporation that the High Court has directedthe appellant to acquire the land in question for the purposes for which itwas reserved in view of the Resolution passed by the General Body. Itis submitted that the aforesaid finding is just contrary to the law laiddown by this Court in the case of Shrirampur Municipal Council,Shrirampur (supra). It is submitted that in the aforesaid decision it isspecifically observed and held by this Court that by mere passing of aresolution by the Planning Authority or sending a letter to the Collectoror even to the State Government cannot be treated as commencementof the proceedings for the acquisition of the land under the 1966 Actand/or 1894 Act.

3.7 Making the above submissions and relying upon the abovedecisions, it is prayed to allow the present appeal and quash and setaside the impugned judgment and order passed by the High Court.

4. Present appeal is vehemently opposed by Shri C.U. Singh,learned Senior Advocate appearing on behalf of the respondents – originallandowners.

4.1 It is vehemently submitted by Shri Singh, learned SeniorAdvocate appearing on behalf of the original landowners that the appellantCorporation deserves no relief under Article 136 of the Constitutionbecause of its conduct in not following a consistent stand before theHigh Court and this Court. It is submitted that the Corporation is barredby the law of estoppel and the doctrine of election from changing itsstand from first agreeing to acquire property, then offering TDR in lieuof compensation, and finally from refusing to comply with the Hon’bleHigh Court’s judgment on incorrect grounds.

4.2 It is submitted that in the present case various parts of theland in question were reserved for the purposes of parking, playground, AB

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Agarden and twelve meter wide road and extension of sewage treatmentplant. It is submitted that the reservation continued for more than tenyears. It is urged that for all these ten years, the landowners were deprivedof developing and/or using their land. It is contended that thereafterafter keeping the land in question under reservation for more than tenyears thereafter it is not open for the Corporation to say that it will notBacquire the land for paucity of the funds. It is submitted that when theland in question was kept under reservation for more than ten years andthe land was not acquired, the respondents issued a purchase noticedated 02.01.2012 to the Corporation under Section 127 of the MRTPAct for acquisition of the land. It is submitted that in fact, the GeneralCBody of the Corporation thereafter passed a Resolution dated 18.02.2012resolving that the land is required to be acquired and granting the consentby making provision for payment of the compensation in the budget ofthe Corporation. It is contended that thus it is clear that the appellantCorporation possessed sufficient funds to acquire the land and had aclear intention of acquiring it. It is submitted that even thereafter theDMunicipal Commissioner issued a letter dated 22.04.2012 to the officersof the State requesting initiation of acquisition proceedings under therelevant statutes. Pursuant to this, the Special Land Acquisition Officerissued a letter dated 28.10.2015 to the Municipal Commissioner callingupon him to deposit an amount of Rs.77,64,12,000/- in the PLA AccountEof the SLAO’s office. It is submitted that it is at this point that theappellant Corporation decided to not acquire the land considering theamount of money it was directed to pay as compensation. It is submittedthat even thereafter also and despite having agreed to acquire the landin question, the Corporation issued a letter dated 17.03.2016 calling uponthe landowners to submit a proposal for grant of TDR in lieu of monetaryFcompensation. It is submitted that the landowners initially rejected theCorporation’s proposal for TDR by letter dated 17.05.2016 since theTDR offered was not in accordance with the correct rates prescribedby the concerned DCR that was then in force. It is submitted that onlythereafter and aggrieved by the gross inaction on the part of theGCorporation, the respondents - landowners were compelled to file writpetition before the High Court being Writ Petition No. 4790 of 2018praying for similar reliefs as the respondents had sought in the presentmatter with respect to the part of the land, which was reserved forplayground. That the Hon’ble High Court allowed the said writ petitionvide order dated 06.08.2018. It is submitted that in the said order, theH

High Court also took note of the Corporation’s stand that it needs therespondents’ land, but it is unable to purchase it only due to its financialconstraints. It is submitted that by the said judgment, the High Court alsodirected the Corporation to take steps for issuing a declaration under theMRTP Act and to complete the entire process of acquisition. It is submittedthat thereafter since the Corporation failed to implement the High Court’saforesaid judgment and order dated 06.08.2018, the respondents –landowners filed a contempt petition and the Corporation had offeredTDR in lieu of compensation, which the respondents had accepted. It isurged that by the impugned judgment, the High Court has granted similarreliefs, which were granted in Writ Petition No. 4790 of 2018 and hasdirected the Corporation to initiate the acquisition proceedings.

4.3 It is submitted that even before the High Court, the Corporationfiled a Civil Application No. 2461 of 2018, willing to offer TDR in lieu ofcompensation to be paid for the acquisition of the reserved land. Thus, itis not open for the Corporation to take a contrary stand and even opposethe TDR in lieu of compensation for acquisition of the land underreservation, which the landowners are ready to accept. It is contendedthat the landowners are entitled to the TDR in lieu of compensationamount as per the DCR.

4.4 It is submitted by Shri C.U. Singh, learned Senior Advocateappearing on behalf of the landowners that as the Corporation haschanged its stand from time to time before the Hon’ble High Court aswell as before this Court by not agreeing to acquire the land in questionand not willing to offer TDR in lieu of compensation amount, theCorporation cannot be permitted to approbate and reprobate. Relianceis placed on the decisions of this Court in the case of MumbaiInternational Airport Private Limited Vs. Golden Chariot Airport& Anr., (2010) 10 SCC 422 as well as Joint Action Committee ofAir Line Pilots’ Association of India (ALPAI) and Ors. Vs. DirectorGeneral of Civil Aviation and Ors., (2011) 5 SCC 435 and KaramKapahi and Ors. Vs. Lal Chand Public Charitable Trust and Anr.,(2010) 4 SCC 753.

4.5 It is submitted that in the aforesaid decisions, this Hon’bleCourt had explained the common law doctrine of approbation andreprobation as a facet of the law of estoppel. It is contended that thereforethe appellant Corporation is also bound by the same doctrine of approbationand reprobation, which acts as an estoppel against its decision to deny A

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ATDR to the respondents - landowners after having previously offered iton its own accord.

4.6 It is further submitted by Shri C.U. Singh, learned SeniorAdvocate appearing on behalf of the original landowners that in thefacts and circumstances of the case, it cannot be said that the reservationBof the land in question has lapsed. It is submitted that on lapsing of thereservation, a notification was required to be issued by an order publishingin the Official Gazette as per Section 127(2) of the MRTP Act. That inthe present case since that was not done, the reservation in respect oflandowners cannot be said to have lapsed. It is submitted that thereforethe Corporation cannot now take the stand of lapse before this Hon’bleCCourt at this stage of proceedings, especially since it did not take thisstand before the High Court.

4.7 It is further submitted by Shri C.U. Singh, learned SeniorAdvocate appearing on behalf of the landowners that even otherwiseconsidering the relevant provisions of the MRTP Act, more particularly,DSection 22 read with Section 31(5), the Corporation is bound to makeprovision in the Development Plan for parking, garden, which are publicpurposes. It is submitted that it is the duty cast upon the Corporation tomake necessary provisions for public purposes in the Development Plan.It is submitted that if the stand on behalf of the Corporation in the presentEcase is accepted, in that case, there shall not be any garden, parkingetc., which are public purposes and it can be said that the Corporationhas failed to fulfill its obligations under the MRTP Act. Reliance is placedupon the decision of this Court in the case of Municipal Corporationof Greater Mumbai and Ors. Vs. Hiraman Sitaram Deorukharand Ors., (2019) 14 SCC 411.F

4.8 It is further submitted by Shri C.U. Singh, learned SeniorAdvocate appearing on behalf of the landowners that in the presentcase, the Corporation has already granted TDR to the present respondentsin accordance with Clause 11.2.4 of the Unified DCPR, 2020 for acquiringthe portion of the land reserved for the playground. It is submitted thatGas per Clause 11.2.4(a), the TDR for a non-congested area is 1:2.However, the quantum of TDR is reduced to 1:1.85 in case levelling ofland and construction/erection of a compound wall/fencing to the landunder surrender is not desirable considering the total area of reservation.It is submitted that the respondents are unable to undertake suchHconstruction/erection work in respect of their land. It is submitted that therefore the Corporation offered TDR in the ratio of 1:1.85 instead of1:2. It is submitted that in other words, the respondents are effectivelyready and willing to accept the TDR in lieu of compensation despitesuffering a higher cut. It is urged that the respondents are still ready toaccept the TDR in lieu of the compensation amount for the reservedland to be acquired.

4.9 Making the above submissions, it is prayed to dismiss thepresent appeals and confirm the impugned judgment and order passedby the High Court.

5. Heard the learned counsel for the respective parties at length.

6. The short question which is posed for the consideration of thisCourt is:

Whether a writ of Mandamus can be issued by the High Court inexercise of powers under Article 226 of the Constitution of Indiadirecting the authority/Municipal Corporation to acquire the landreserved for a particular purpose and to pay the compensation tothe original landowners despite the fact that the reservation isdeemed to have lapsed in view of the statutory provisions andthat the land which is directed to be acquired and for which thecompensation is directed to be paid to the original landowners isunsuitable and unusable for the purposes for which it is reserved?

7. In the present case, the respondents herein – original landownersfiled a writ petition before the High Court and prayed for the followingreliefs:- a.Rule be issued and records and proceedings be called for; b.That this Hon’ble Court may be pleased to issue writ ofmandamus and/ or any other appropriate writ, order ordirection in the nature of writ of mandamus thereby directingthe Respondent No. 1 and 2 to forthwith publish a finalnotification under sub section (2) and (4) of the Sec. 126 ofthe M.R.T.P. Act read with Sec. 19 of the Right to FairCompensation and Transparency in Land Acquisition,Rehabilitation, and Resettlement Act; 2013;

c.That this Hon’ble Court may be pleased to issue writ ofmandamus and/or any other appropriate writ, order ordirection in the nature of writ of mandamus thereby directing A

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the Respondent No. 3 Corporation to forthwith deposit theamount of compensation i.e. Rs. 77,64,12000/- with theRespondent No. 2 and 7 and further the Respondent No. 2and 7 may be directed to forthwith release the said amountof compensation to the Petitioners; A

Bd.Such further and other order be made as this Hon’ble Courtmay deem fit and proper in the interest of justice and in thefacts and circumstances of the case.

8. The writ petition and the aforesaid prayers were vehementlyopposed by the appellant – Corporation inter alia submitting (i) that theCCorporation is not in a position to pay the compensation and it is beyondtheir budgetary provisions; (ii) that the reservation under the MRTP Acthas lapsed in view of Section 126 r/w Section 127 of the MRTP Act; and(iii) that the land sought to be directed to be acquired and for whichcompensation is to be paid is unsuitable and unusable for the purposesfor which the land has been reserved namely parking, garden etc.DHowever, by the impugned judgment and order and without adverting tothe relevant facts and circumstances of the case, the High Court hasdirected the Corporation to issue a declaration under Section 19 of theAct of 2013 and to pay the compensation to the original landowners.Virtually, the High Court has directed the Municipal Corporation to acquireEthe land in question for the purposes for which the same was put underreservation under the Development Plan.

8.1 From the impugned judgment and order passed by the HighCourt, it appears that the High Court has issued a writ of Mandamusand has directed the Corporation to acquire the land for the purposes forFwhich it was reserved under the Development Plan mainly on the groundthat the General Body of the Corporation had passed a Resolution toacquire the land and by further observing that as the General Body ofthe Corporation had passed a Resolution to acquire the land as the sameis required by the Corporation for public purposes namely parking, gardenetc. Therefore, and as observed hereinabove, the question which is posedGfor the consideration of this Court is, whether the High Court was justifiedin issuing the writ of Mandamus directing the Corporation to acquire theland for the purposes for which it was reserved under the DevelopmentPlan.

9. While considering the issue/issues involved, the scheme of theMRTP Act, more particularly, with respect to the Development Plan isrequired to be referred to and considered.

9.1 Chapter III of the MRTP Act deals with Development Plan.As per Section 21 of the Act as soon as may be after the commencementof the Act, but not later than three years from such commencement, andsubject to the provisions of the Act, 1966, every Planning Authority shallcarry out a survey, prepare an existing land-use map and prepare a draftDevelopment plan for the area within its jurisdiction, in accordance withthe provisions of a Regional plan, where there is such a plan. As persub-section (2) of Section 21, every Planning Authority constituted shalldeclare its intention to prepare a draft Development plan, prepare suchplan and publish a notice of such preparation in the Official Gazette andin such other manner as may be prescribed and submit the draftDevelopment plan to the State Government for sanction. Therefore, it isthe duty cast upon the Planning Authority to prepare a draft DevelopmentPlan; to issue a declaration of intention to prepare the DevelopmentPlan and submit the same to the State Government for sanction withinthe period specified or within the extended period as provided under theAct, 1966. Section 22 of the Act, 1966 provides for what should becontained in the Development plan. As per Section 22 of the Act, 1966,in the Development Plan, there shall be provisions for reservation forpublic purposes, which include provisions for proposals for designationof the land for various public purposes. Section 22 reads as under:-

“22. A Development plan shall generally indicate the manner inwhich the use of land in the area of a Planning Authority shall beregulated, and also indicate the manner in which the developmentof land therein shall be carried out. In particular, it shall provide sofar as may be necessary for all or any of the following matters,that is to say,—

(a) proposals for allocating the use of land for purposes,such as residential, industrial, commercial, agricultural, recreational; (b) proposals for designation of land for public purpose,such as schools, colleges and other educational institutions, medicaland public health institutions, markets, social welfare and culturalinstitutions, theatres and places for public entertainment, or publicassembly, museums, art galleries, religious buildings and government A

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and other public buildings as may from time to time be approvedby the State Government ;

(c) proposals for designation of areas for open spaces,playgrounds, stadia, zoological gardens, green belts, naturereserves, sanctuaries and dairies ; (d) transport and communications, such as roads, high-ways,park-ways, railways, water-ways, canals and air ports, includingtheir extension and development ; (e) water supply, drainage, sewerage, sewage disposal,other public utilities, amenities and services including electricityand gas ; (f) reservation of land for community facilities and services; (g) proposals for designation of sites for service industries,industrial estates and any other development on an extensive scale; (h) preservation, conservation and development of areasof natural scenary and landscape ;

(i) preservation of features, structures or places of historical,natural, architectural and scientific interest and educational valueand of heritage buildings and heritage precincts; (j) proposals for flood control and prevention of riverpollution; (k) proposals of the Central Government, a StateGovernment, Planning Authority or public utility undertaking orany other authority established by law for designation of land assubject to acquisition for public purpose or as specified in aDevelopment plan, having regard to the provisions of section 14or for development or for securing use of the land in the mannerprovided by or under this Act ;

(l) the filling up or reclamation of low lying, swampy orunhealthy areas or levelling up of land ; (m) provisions for permission to be granted for controllingand regulating the use and development of land within thejurisdiction of a local authority including imposition of fees, chargesand premium, at such rate as may be fixed by the State Government or the planning Authority, from time to time, for grant of anadditional Floor Space Index or for the special permissions or forthe use of discretionary powers under the relevant DevelopmentControl Regulations, and also for imposition of conditions andrestrictions in regard to the open space to be maintained aboutbuildings, the percentage of building area for a plot, the location,number, size, height, number of storeys and character of buildingsand density of population allowed in a specified area, the use andpurposes to which buildings or specified areas of land may ormay not be appropriated, the sub-division of plots, thediscontinuance of objectionable users of land in any area inreasonable periods, parking space and loading and unloading spacefor any building and the sizes of projections and advertisementsigns and boardings and other matters as may be considerednecessary for carrying out the objects of this Act.”

9.2 Therefore, while preparing the draft Development Plan/Development Plan, the Corporation has to make provisions for variouspublic purposes enumerated under Section 22 of the Act, 1966. It is tobe noted that while preparing a draft Development Plan/DevelopmentPlan, every Planning Authority shall have to carry out a survey andprepare an existing land-use map. Thereafter, the Planning Authorityand the State Government are required to follow the procedure asmandated under the Act, 1966. While preparing the Development Plan,the Planning Authority may also designate (popularly known as ‘keepthe land under reservation’) any land for purposes specified in Clauses(b) and (c) of the Section 22. Sub-section (5) of Section 31 provides thatif a Development Plan contains any proposal for the designation of anyland for a purpose specified in clauses (b) and (c) of section 22, and ifsuch land does not vest in the Planning Authority, the State Governmentshall not include that purpose in the Development Plan, unless it is satisfiedthat the Planning Authority will be able to acquire such land by privateagreement or compulsory acquisition not later than ten years from thedate on which the Development plan comes into operation.

9.3 Therefore, and as observed hereinabove while preparing adraft Development Plan, the Planning Authority and/or its officer(s)appointed shall have to carry out the survey and prepare an existingland-use map. Therefore, while preparing a Development Plan and whiledesignating a particular land and/or reserving a particular land for public AB

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Apurposes mentioned in Clauses (b) and (c) of Section 22, the PlanningAuthority has to bear in mind and/or take into consideration whether theparticular land, which is earmarked and/or reserved and/or designatedfor a public purpose, which will have to be acquired on payment ofcompensation is suitable and/or useable or not for the purposes for whichit is reserved for public purposes. It should not lead to a situation whereBfor some oblique reasons, the Planning Authority keeps a particular landunder reservation and thereafter acquires it and pays the compensationfor the land which is not useable and/or suitable to be used for a particularpurpose merely because the same is under reservation. If the same ispermitted, it will amount to a fraud and colourable exercise of power asCthen the Authority will pay compensation with respect to land whichotherwise is not usable and/or suitable. Therefore, while preparing theDevelopment Plan and putting a particular private land under reservationand/or while designating the private land for a particular public purposeunder the Development Plan, a duty is cast upon the Planning Authorityto make a survey and come to a specific opinion by taking intoDconsideration all relevant facts that the land which is kept underreservation and which will have to be acquired on payment ofcompensation is suitable and/or usable for the purpose for which it is tobe reserved.

9.4 In the present case, even according to the Corporation, theEland in question is not at all suitable and even usable for the purposes forwhich it is reserved, i.e., for public purposes like parking, garden etc., asthe said land is a flood affected and a rivulet named ‘Jayanti Nala’ passesthrough the said area under reservation. It was also the case on behalfof the Corporation before the High Court and even before this Court Fthat the reserved area is coming within High Flood Line and every yearfor a period of fifteen days to one month, the said area gets floodedduring rainy season and that it will be necessary to carry out the requireddevelopment work at a huge cost upon the said reserved land for makingit suitable for public purposes as per reservation. It was/is the specific

case on behalf of the Corporation that if the said development is notGdone, the land under reservation cannot be able to be utilized for thepurposes for which it is reserved. If that be so, we fail to understandwhat the reason was for the Planning Authority to designate such a landfor a public purpose and/or to reserve the land in question in theDevelopment Plan for a public purpose and thereafter to acquire andHpay the compensation if the said land was not at all suitable and/or usable.

9.5 As observed hereinabove, at the time of preparing theDevelopment Plan and keeping a particular land reserved for a particularpublic purpose, an important duty is cast upon the Planning Authority tofirst satisfy that the land reserved which thereafter has to be acquiredon payment of compensation is very much suitable and usable for thatpublic purpose. In the instant case, how the area, which is a flood affectedarea and through which a rivulet named ‘Jayanti Nala’ passes can bekept under reservation for a particular public purpose and can be usedfor public purposes like parking and/or for widening of the road etc.?Therefore, while preparing the Development Plan and reserving and/ordesignating a particular land for a particular public purpose, great careand caution is to be exercised by the Planning Authority. As per Section125 of the Act, any land required, reserved or designated in a Developmentplan or Town Planning Scheme for a public purpose or purposes includingplans for any area of comprehensive development or for any new townshall be deemed to be land needed for a public purpose within the meaningof the Land Acquisition Act, 1894. Hence, all the parameters concerningthe suitability of the land for the particular public purpose for which theland is to be reserved and acquired for utilization must be borne in mindas a factor of paramount importance.

10. The next relevant provisions with which we are concernedwould be Sections 126 and 127 of the MRTP Act, 1966. The saidprovisions read as under:- “126. Acquisition of land required for public purposesspecified in plans.-(1) Where after the publication of a draftRegional plan, a Development or any other plan or town planningscheme, any land is required or reserved for any of the publicpurposes specified in any plan or scheme under this Act at anytime, the Planning Authority, Development Authority, or as thecase may be, any Appropriate Authority may, except as otherwiseprovided 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-owneror the lessee, subject, however, to the lessee paying the lessor ordepositing with the Planning Authority, Development Authority orAppropriate Authority, as the case may be, for payment to thelessor, an amount equivalent to the value of the lessor’s interest to AB

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be determined by any of the said Authorities concerned on thebasis of the principles laid down in the Land Acquisition Act, 1894,Floor Space Index (FSI) or Transferable Development Rights(TDR) against the area of land surrendered free of cost and freefrom all encumbrances, and also further additional Floor SpaceIndex or Transferable Development Rights against the developmentor construction of the amenity on the surrendered land at his cost,as the Final Development Control Regulations prepared in thisbehalf provide, or

(c) by making an application to the State Government foracquiring such land under the Land Acquisition Act, 1894,

and the land (together with the amenity, if any so developedor constructed) so acquired by agreement or by grant of FloorSpace Index or additional Floor Space Index or TransferableDevelopment Rights under this section or under the LandAcquisition Act, 1894, as the case may be, shall vest absolutelyfree from all encumbrances in the Planning Authority, DevelopmentAuthority, or as the case may be, any Appropriate Authority.

(2) On receipt of such application, if the State Government issatisfied that the land specified in the application is needed for thepublic purpose therein specified, or 3[if the State Government(except in cases falling under section 49 4[and except as providedin section 113A)] itself is of opinion] that any land included in anysuch plan is needed for any public purpose, it may make adeclaration to that effect in the Official Gazette, in the mannerprovided in section 6 of the Land Acquisition Act, 1894, in respectof the said land. The declaration so published shall, notwithstandinganything contained in the said Act, be deemed to be a declarationduly 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 yearfrom the date of publication of the draft Regional Plan, DevelopmentPlan or any other Plan, or Scheme, as the case may be.

(3) On publication of a declaration under the said section 6,the Collector shall proceed to take order for the acquisition of theland under the said Act; and the provisions of that Act shall apply to the acquisition of the said land with the modification that themarket value of the land shall be,—

(i) where the land is to be acquired for the purposes of anew town, the market value prevailing on the date of publicationof the notification constituting or declaring the DevelopmentAuthority for such town;

(ii) where the land is acquired for the purposes of a SpecialPlanning Authority, the market value prevailing on the date ofpublication of the notification of the area as undeveloped area;and

(iii) in any other case, the market value on the date ofpublication of the interim development plan, the draft developmentplan or the plan for the area or areas for comprehensivedevelopment, whichever is earlier, or as the case may be, the dateof publication of the draft Town Planning Scheme:

Provided that, nothing in this sub-section shall affect thedate for the purpose of determining the market value of land inrespect of which proceedings for acquisition commenced beforethe commencement of the Maharashtra Regional and TownPlanning (Second Amendment) Act, 1972:

Provided further that, for the purpose of clause (ii) of thissub-section, the market value in respect of land included in anyundeveloped area notified under sub-section (1) of section 40 priorto the commencement of the Maharashtra Regional and TownPlanning (Second Amendment) Act, 1972, shall be the marketvalue prevailing on the date of such commencement.

(4) Notwithstanding anything contained in the proviso tosub-section (2) and subsection (3), if a declaration,] is not made,within the period referred to in sub-section (2) (or having beenmade, the aforesaid period expired on the commencement of theMaharashtra Regional and Town Planning (Amendment) Act,1993, the State Government may make a fresh declaration foracquiring the land under the Land Acquisition Act, 1894, in themanner provided by sub-sections (2) and (3) of this section, subjectto the modification that the market value of the land shall be themarket value at the date of declaration in the Official Gazette,made for acquiring the land afresh.

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A127. Lapsing of reservations.-(1) If any land reserved,allotted or designated for any purpose specified in any plan underthis Act is not acquired by agreement within ten years from thedate on which a final Regional Plan, or final Development Plancomes into force 2[or if a declaration under sub-section (2) or (4)of section 126 is not published in the Official Gazette within suchBperiod, the owner or any person interested in the land may servenotice, alongwith the documents showing his title or interest in thesaid land, on the Planning Authority, the Development Authorityor, as the case may be, the Appropriate Authority to that effect;and if within twelve months] from the date of the service of suchCnotice, the land is not acquired or no steps as aforesaid arecommenced for its acquisition, the reservation, allotment ordesignation shall be deemed to have lapsed, and thereupon, theland shall be deemed to be released from such reservation, allotmentor designation and shall become available to the owner for thepurpose of development as otherwise, permissible in the case ofDadjacent land under the relevant plan.

(2) On lapsing of reservation, allocation or designation ofany land under sub-section (1), the Government shall notify thesame, by an order published in the Official Gazette.”

E10.1 Section 126 of the MRTP Act provides that where after thepublication of a draft Regional plan, a Development or any other plan ortown planning scheme, any land is required or reserved for any of thepublic purposes specified in any plan or scheme under MRTP Act at anytime, the Planning Authority, Development Authority, or as the case maybe, any Appropriate Authority has to acquire the land as provided underFSections 126(1)(a), (b) or (c) by making an application to the StateGovernment for acquiring such land under the Land Acquisition Act,1894 (now it would be the Act of 2013). On receipt of such applicationby the Planning Authority/Development Authority to the StateGovernment for acquiring such land under the Land Acquisition Act,G1894, the procedure as contemplated and required under Sections 126(2)to 126(4) shall have to be followed. Section 127 of the MRTP Act furtherprovides that if any land reserved, allotted or designated for any purposespecified in any plan under MRTP Act is not acquired by agreement orotherwise within ten years from the date on which a final Regional Plan,or final Development Plan comes into force or if a declaration under H

sub-section (2) or (4) of Section 126 is not published in the OfficialGazette within such period (ten years), the owner or any person interestedin the land may serve a notice to the Planning Authority, the DevelopmentAuthority or, as the case may be, the Appropriate Authority to purchasethe land reserved. If within twelve months from the date of the serviceof such notice, the land is not acquired or no steps are commenced forits acquisition, the reservation, allotment or designation shall be deemedto have lapsed, and thereupon, the land shall be deemed to be releasedfrom such reservation, allotment or designation and shall becomeavailable to the owner for the purpose of development as otherwise,permissible in the case of adjacent land under the relevant plan. Sub-section (2) of Section 127 further provides that on lapsing of thereservation, allocation or designation of any land under sub-section (1),the Government shall notify the same, by an order published in the OfficialGazette.

10.2 What can be said to be taking “steps” as mentioned in Section127 of the MRTP Act has been extensively dealt with and considered bythis Court in the case of Girnar Traders (supra), ShrirampurMunicipal Council, Shrirampur (supra) and Chhabildas (supra).

10.3 In the case of Girnar Traders (supra), this Court hadoccasion to consider the entire scheme of Sections 126 and 127. Insofaras Section 127 is concerned, this Court has observed and held inparagraphs 31 and 32 as under:-

“31. Section 127 prescribes two-time periods. First, a period of10 years within which the acquisition of the land reserved, allottedor designated has to be completed by agreement from the date onwhich a regional plan or development plan comes into force, orthe proceedings for acquisition of such land under the MRTP Actor under the LA Act are commenced. Secondly, if the first part ofSection 127 is not complied with or no steps are taken, then thesecond part of Section 127 will come into operation, under whicha period of six months is provided from the date on which thenotice has been served by the owner within which the land has tobe acquired or the steps as aforesaid are to be commenced for itsacquisition. The six month period shall commence from the datethe owner or any person interested in the land serves a notice onthe planning authority, development authority or appropriateauthority expressing his intent claiming dereservation of the land.

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If neither of the things is done, the reservation shall lapse. If thereis no notice by the owner or any person interested, there is noquestion of lapsing reservation, allotment or designation of theland under the development plan. Second part of Section 127stipulates that the reservation of the land under a developmentscheme shall lapse if the land is not acquired or no steps are takenfor acquisition of the land within the period of six months from thedate of service of the purchase notice. The word “aforesaid” inthe collocation of the words “no steps as aforesaid are commencedfor its acquisition” obviously refers to the steps contemplated bySection 126 of the MRTP Act.

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32. If no proceedings as provided under Section 127 are takenand as a result thereof the reservation of the land lapses, the landshall be released from reservation, allotment or designation andshall be available to the owner for the purpose of development.The availability of the land to the owner for the development wouldonly be for the purpose which is permissible in the case of adjacentland under the relevant plan. Thus, even after the release, theowner cannot utilise the land in whatever manner he deems fitand proper, but its utilisation has to be in conformity with the relevantplan for which the adjacent lands are permitted to be utilised.”

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E10.4 On emphasizing the word “steps” used in Section 127 of theMRTP Act, it is observed and held in paragraphs 56 and 57 as under:- “56. The underlying principle envisaged in Section 127 of theMRTP Act is either to utilise the land for the purpose it is reservedin the plan in a given time or let the owner utilise the land for thepurpose it is permissible under the town planning scheme. Thestep taken under the section within the time stipulated should betowards acquisition of land. It is a step of acquisition of land andnot step for acquisition of land. It is trite that failure of authoritiesto take steps which result in actual commencement of acquisitionof land cannot be permitted to defeat the purpose and object ofthe scheme of acquisition under the MRTP Act by merely movingan application requesting the Government to acquire the land, whichGovernment may or may not accept. Any step which may or maynot culminate in the step for acquisition cannot be said to be astep towards acquisition.

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57. It may also be noted that the legislature while enacting Section127 has deliberately used the word “steps” (in plural and not insingular) which are required to be taken for acquisition of theland. On construction of Section 126 which provides for acquisitionof the land under the MRTP Act, it is apparent that the steps foracquisition of the land would be issuance of the declaration underSection 6 of the LA Act. Clause (c) of Section 126(1) merelyprovides for a mode by which the State Government can berequested for the acquisition of the land under Section 6 of theLA Act. The making of an application to the State Governmentfor acquisition of the land would not be a step for acquisition ofthe land under reservation. Sub-section (2) of Section 126 leavesit open to the State Government either to permit the acquisition ornot to permit, considering the public purpose for which theacquisition is sought for by the authorities. Thus, the steps towardsacquisition would really commence when the State Governmentpermits the acquisition and as a result thereof publishes thedeclaration under Section 6 of the LA Act.”

10.5 In Shrirampur Municipal Council, Shrirampur (supra),it was the case on behalf of the Planning Authority that after the purchasenotice as per Section 127(1) is served and the Planning Authority and/orthe Corporation has passed a resolution to acquire the land and it iscommunicated to the State Government, it can be said to be taking“steps” and therefore in such a situation the reservation cannot be saidto have lapsed. The aforesaid position came to be negated by this Courtin the aforesaid decision after considering the judgment of this Court inthe case of Girnar Traders (supra). It is specifically observed andheld that the expression “no steps as aforesaid” used in Section 127 ofthe Act, 1966 has to be read in the context of the provisions of the Act of1894 and now the Act of 2013 and a mere passing of a Resolution by thePlanning Authority or sending a letter to the Collector or even to theState Government cannot be treated as commencement of theproceedings for the acquisition of the land under the 1966 Act and/or1894 Act or now the Act of 2013. It is observed and held that publicationof a declaration under Section 6(2) of the Act of 1894 can be said to beconclusive evidence that the land is needed for a public purpose andimply taking active steps for the acquisition of the particular piece of AB

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Aland. In paragraphs 42 and 43 of the said judgment, it is observed andheld as under:- “42. We are further of the view that the majority in GirnarTraders [Girnar Traders v. State of Maharashtra, (2007) 7 SCC555] had rightly observed that steps towards the acquisition wouldreally commence when the State Government takes active stepsfor the acquisition of the particular piece of land which leads topublication of the declaration under Section 6 of the 1894 Act.Any other interpretation of the scheme of Sections 126 and 127of the 1966 Act will make the provisions wholly unworkable andleave the landowner at the mercy of the Planning Authority andthe State Government.

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43. The expression “no steps as aforesaid” used in Section 127of the 1966 Act has to be read in the context of the provisions ofthe 1894 Act and mere passing of a resolution by the PlanningAuthority or sending of a letter to the Collector or even the StateGovernment cannot be treated as commencement of theproceedings for the acquisition of land under the 1966 Act or the1894 Act. By enacting Sections 125 to 127 of the 1966 Act, theState Legislature has made a definite departure from the schemeof acquisition enshrined in the 1894 Act. But a holistic reading ofthese provisions makes it clear that while engrafting the substanceof some of the provisions of the 1894 Act in the 1966 Act andleaving out other provisions, the State Legislature has ensuredthat the landowners/other interested persons, whose land is utilisedfor execution of the development plan/town planning scheme, etc.,are not left high and dry. This is the reason why time-limit of tenyears has been prescribed in Section 31(5) and also under Sections126 and 127 of the 1966 Act for the acquisition of land, with astipulation that if the land is not acquired within six months of theservice of notice under Section 127 or steps are not commencedfor acquisition, reservation of the land will be deemed to havelapsed. Shri Naphade’s interpretation of the scheme of Sections126 and 127, if accepted, will lead to absurd results and thelandowners will be deprived of their right to use the property foran indefinite period without being paid compensation. That wouldtantamount to depriving the citizens of their property without thesanction of law and would result in violation of Article 300-A ofthe Constitution.”

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10.6 Subsequently, in the case of Chhabildas (supra), it has beenobserved and held by this Court after considering the decisions of thisCourt in the cases of Girnar Traders (supra) and ShrirampurMunicipal Council, Shrirampur (supra) that if a period of ten yearshas elapsed from the date of publication of the plan in question, and nosteps for acquiring the land have been taken, then once a purchase noticeis served under Section 127, steps to acquire the land must follow withina period of one year from the date of service of such notice, or else theland acquisition proceedings would lapse.

11. Thus, as per the law laid down by this Court in the aforesaidthree decisions, if the land reserved under the draft Development Plan/Development Plan is not acquired within a period of ten years form thedate of final Development Plan and thereafter after expiry of ten years,the landowners serve a purchase notice and thereafter within a periodof one year, no steps are taken to acquire the land, the reservation/allocation is deemed to have lapsed and the land stand released fromsuch reservation/allocation. As held above, declaration under Section 6of the Act of 1894 can be said to be taking steps as contemplated underSection 127 of the MRTP Act. After the enactment of the Act of 2013,the declaration under Section 6 of the Act of 1894 is now to be read and/or is substituted by declaration under Section 19 of the Act of 2013.Therefore, if within a period of one year from the date of receipt ofpurchase notice as per Section 127, a declaration under Section 19 ofthe Act, 2013 is not issued and the land is not acquired, the reservation/allocation under the Development Plan is deemed to have lapsed andthe land is released from such reservation/allocation.

11.1 Applying the law laid down by this Court in the aforesaiddecisions to the present case, the first Development Plan under whichthe original writ petitioners’ land was reserved for public purposes wasin the year 1976. Thereafter the second amended Development Planwas published on 18.12.1999 and came to be implemented from01.02.2000, under which also the land of the original writ petitioners wasreserved for public purposes. But the same had not been acquired forten years despite the respondents – original writ petitioners having issueda purchase notice dated 02.01.2012 under Section 127 of the MRTP Actfor acquisition of the reserved area. A mere Resolution being passed bythe General Body of the Corporation to acquire the land and sending aletter to the Collector to acquire the land, without any further steps being A

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Ataken under the Land Acquisition Act, namely no declaration undersection 6 thereof being issued within a period of one year from the receiptof the said purchase notice, would result in the reservation as deemed tohave lapsed.

12. In the present case, the High Court has issued a writ ofBMandamus directing the Corporation to issue a declaration under Section19 of the Act of 2013 mainly on the ground that the General Body of theCorporation had passed a Resolution dated 18.02.2012 resolving thatthe land in question is required to be acquired and the same is needed forthe purpose for which it has been reserved. However, in our view, merepassing of a Resolution and/or making a budgetary provision for paymentCof the compensation in the budget cannot be said to be taking steps ascontemplated under section 127 of the MRTP Act.

Therefore, once the reservation of land under the DevelopmentPlan is deemed to have lapsed by operation of law and it is releasedfrom reservation, no writ of Mandamus could have been issued by theDHigh Court directing the Corporation to still acquire the land and to issuea declaration under Section 19 of the Act of 2013 (as in the meantime,the Land Acquisition Act, 1894 has been repealed and Act of 2013 hasbeen enacted). Once by operation of law, the reservation is deemed tohave lapsed, it is lapsed for all purposes and for all times to come.

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13. Now, so far as the observation made by the High Court thatafter the reservation is deemed to have lapsed, it has not been notified inthe Official Gazette as required under Section 127(2) of the MRTP Actis concerned, we observe that notification in the Official Gazette is onlya consequential act and it has nothing to do with the actual lapsing ofFreservation by operation of law as the reservation is deemed to havelapsed under Section 127(1). Thereafter issuance of the notification oflapse of the reservation of land is only a procedural act and non-issuanceof such a notification in the Official Gazette with respect to lapse of thereservation, allocation or designation would not affect the lapse of thereservation under Section 127(1) of the MRTP Act.G

14. Therefore, as such once the reservation with respect to theland in question was deemed to have lapsed as observed hereinabove,no further writ of mandamus could have been issued by the High Courtto acquire the land and thereafter pay the compensation to the landowners,as on the lapse of the reservation, the land in question is free from reservation and the landowners can use it as if there is no reservation,however, subject to provisions of the MRTP Act.

15. Even otherwise, in the facts and circumstances of the case,the High Court had erred and/or the High Court was not justified indirecting the Municipal Corporation to acquire the land in question andto issue a declaration under Section 19 of the Act of 2013 and to paycompensation under the Act of 2013. It is to be noted that right from thevery beginning it was stated in the counter before the High Court thatthe land in question was not suitable and/or usable for the purposes forwhich it has been reserved. It was specifically pointed out that the subjectland is flood affected through which a rivulet named ‘Jayanti Nala’ passes,making it unsuitable for the public purposes for which it was reserved. Itwas also specifically pointed out that unless and until the substantialdevelopment is carried out, the land in question is not usable at all. It wasalso specifically pointed out that the reserved area is coming within HighFlood Line and every year for a period of fifteen days to one month, thesaid area gets flooded during rainy season. In that view of the matter,the High Court ought not to have directed the Corporation to still acquirethe land and pay the compensation to the original landowners though theland in question is unsuitable and unusable for the public purposes forwhich it has been reserved. As observed hereinabove, as such at thetime when the planning was made and the land in question was putunder reservation for public purposes, a duty was cast upon the PlanningOfficer to consider whether the land, which will have to be acquired andfor which the compensation is to be paid is really suitable and/or usablefor the public purposes for which it is reserved. Otherwise, everylandowner will see to it that though his land is not suitable and/or notvery valuable, is put under reservation and the same is acquired by theCorporation and/or the Planning Authority and thereafter he is paid thecompensation. No Corporation and/or the Planning Authority and/or theAppropriate Authority can be compelled to acquire the land whichaccording to the Corporation/Planning Authority is not suitable and/orusable for the purposes for which it is reserved. Any other interpretationwould lead to colourable and fraudulent exercise of power and causefinancial burden on the public exchequer.

16. At this stage, it is required to be noted that in fact there was avalid reason for the Corporation not to go ahead with the acquisition.Under the Act of 2013, the Corporation was required to pay a huge sum AB

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Aof Rs. 77,65,12,000/- by way of compensation under the Act of 2013.According to the Corporation, when the entire annual budget foracquisition was Rs.21 crores, it was beyond their financial position and/or budgetary provision to pay such a huge compensation, that too, forthe land which is not suitable and/or useable for the purposes for whichit has been reserved. It may be true that under the MRTP Act, in theBDevelopment Plan, the Planning Authority and/or the AppropriateAuthority has to make the provisions for the public purposes mentionedin Clauses (b) and (c) of Section 22 and sub-section (5) of Section 31 ofthe MRTP Act and that is also desired for an appropriate planning of acity and therefore the financial constraint cannot be the sole considerationCto acquire the land for the purposes for which it has been reservednamely public purposes. However, at the same time, when such a hugeamount of compensation is to be paid and there would be a heavy financialburden, which as such is beyond the financial capacity of the Corporation,such a financial constraint can be said to be one of the relevantconsiderations, though not the sole consideration before embarking uponDreservation of a particular extent of land for development. Evenotherwise, in the facts and circumstances of this case, when land isfound to be unsuitable and unusable for the purposes for which it hasbeen reserved, Corporation cannot be compelled to pay a hugecompensation for such a useless and unsuitable land.

E17. Now, the submission on behalf of the original landowners thatif the Corporation is not in a position to pay the compensation, in thatcase, they are ready to accept the TDR in lieu of the amount ofcompensation shall be considered. At one point of time, the aforesaidproposal was under consideration by the Corporation and the CorporationFeven moved a Civil Application before the High Court to direct thelandowners to accept the TDR. Therefore, on the principle of approbateand reprobate, it is contended by the landowners that the Corporationcannot now be permitted to deny TDR to the original landowners, weobserve that first of all, it is required to be noted that the said principle of approbate and reprobate would be equally appliable to the landownersGalso. Before the High Court, the original landowners specifically filedthe affidavits dated 01.08.2018 and 07.08.2018, as observed and notedby the High Court in the impugned judgment and order in paragraph 5that they do not wish to avail of TDR and their only prayer before theHigh Court was to acquire the land and to pay them the compensation.H

Therefore, now it is not open for the respondents -original landowners topray for the TDR in respect of the land in question.

17.1 Even otherwise, a landowner is entitled to TDR in lieu ofcompensation with respect to the land reserved provided the land to beacquired is suitable and/or usable by the Corporation. Once it is foundthat the land is not usable and/or suitable for the purposes for which ithas been reserved, the Corporation cannot still be compelled and directedto acquire the land and grant TDR in lieu of amount of compensation.Even as per Clause 11.2.2 of the Unified Development Control andPromotion Regulations, 2020 (UDCPR, 2020) for Maharashtra Stateunder which the TDR is claimed, the compensation in terms of TDRshall be permissible for:- “xxxxxxxxxxxx

ii) lands under any deemed reservations according to anyregulations prepared as per the provisions of Maharashtra Regional& Town Planning Act,1966; xxxxxxxxxxxx

v) development or construction of the amenity on the reserved ordeemed reserved land; xxxxxxxxxxxx”

Therefore, it can be argued that there cannot be any TDR in lieuof compensation to be paid for the reserved land which reservation isdeemed to have lapsed as in the instant case.

17.2 Even Clause 11.2.3 of the above Regulations states that itshall not be permissible to grant TDR for existing nallah, river, naturalstream, natural pond, tank, water bodies etc. and reservations which arenot developable under the provisions of UDCPR, 2020.

Therefore, for the reasons stated hereinabove, the prayer of therespondents to grant them TDR deserves rejection and is hereby rejected.

18. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order passed bythe High Court directing the appellant Corporation to issue a declarationunder Section 19 of the Act of 2013 and consequently to acquire theland in question and to pay the compensation to the respondents – originallandowners as per the provisions of Act of 2013 is hereby quashed and AB

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Aset aside. Consequently, the original Writ Petition (Writ Petition No.5310of 2018) before the High Court filed on behalf of the original landownersstand dismissed.

Present appeal is allowed accordingly. However, in the facts andcircumstances of the case, there shall be no order as to costs.

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Civil Appeal No.511 of 2022

19. In view of the judgment and order passed by this Court inCivil Appeal No.510 of 2022, the Civil Appeal No. 511 of 2022 standspartly allowed to the extent of declaring that reservation of the land forthe public purposes for which it was reserved is deemed to have lapsed.

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No costs.

Nidhi Jain(Assisted by : Ajay, LCRA)

Appeals disposed of.

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