Tulip  Kanth

New Delhi, March 24,2022: Holding that the direction passed by the Aurangabad Bench of the Bombay High Court to acquire land within a period of one year was contravening the time line fixed under the Maharashtra Regional and Town Planning Act, 1966, the Supreme Court has made it clear that once an embargo has been put on a land owner not to use the land in a particular manner, the said restriction cannot be kept open-ended for an indefinite period of time.

The Division Bench of Justice Hemant Gupta and Justice V.Ramasubramanian said, “The State or its functionaries cannot be directed to acquire the land as the acquisition is on its satisfaction that the land is required for a public purpose.”

The challenge in this appeal was made to an order passed by the Aurangabad Bench of the Bombay High Court holding that the reservation of land in the Development Plan stood lapsed as no declaration under Section 126 was published. However, the Planning Authority was given one year to acquire the land once reserved.

 A final Development Plan was published under Section 31(6) on February 18, 2002 in respect of land including the land owned by the appellants for playground and the appellants purchased certain plots. Though the Development Plan was finalized, the same was never implemented nor any action was taken for acquisition of the land under the Land Acquisition Act, 1894. After expiry of ten years, the appellants issued notice on August 16, 2016 under Section 127 so as to purchase the reserved land within one year of the date of the notice. Such notice was acknowledged by the respondent-Municipal Corporation to submit a measuring plan showing reservation thereon including the area owned by the appellants. 

Later, the appellants filed a writ petition before the High Court for a writ of mandamus directing the respondents to treat the land of the appellants bearing Survey No. 73 as released from the Development Plan of Latur Municipal Corporation and the Site reserved for playground be declared to have lapsed to the extent of the land owned by the appellants and that the land was available for their residential use. The stand of the Municipal Corporation was that the proposal was submitted to the Collector, Latur to take effective steps for acquiring the land bearing Survey No. 73 as the land was reserved for playground. The proposal was returned by the Competent Authority but no effective decision was taken over the said proposal.

The land owner had come in appeal before the Apex Court against the restriction of one year put by the High Court giving additional time to respondents to acquire the land.

The Division Bench found that the liberty given by the High Court to acquire the land within an additional period of one year is not contemplated by the statute. It was also opined that in the judgment of the this Court in Bangalore Medical Trust v. B.S. Muddappa & Ors.a Public Interest Litigation interfered with the decision of the Bangalore Development Authority to convert the land reserved for public parks for the purposes of construction of a hospital. It was in these circumstances that the Top Court intervened, indicting the land reserved for public parks to be used for other purposes. 

The Bench referred to the judgment of this Court in Municipal Corporation of Greater Mumbai & Ors. v. Hiraman Sitaram Deorukhar & Ors,  (2019) 14 SCC 41,  wherein it was held that the authorities have been given a duty to act as a beneficiary of the trust with respect to public park and had thus directed to acquire land under the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 within a period of six months. Such direction was given under Article 142 of the Constitution of India keeping in view the facts of the case. 

Keeping these facets in consideration, the Top Court held that such direction and period for acquisition of land was not a law declared by this Court which was to be treated as binding precedent for this Court and the subordinate courts in terms of Article 141 r/w Article 144 of the Constitution. The Bench noted that once the Act does not contemplate any further period for acquisition, the Court cannot grant additional period for acquisition of land.

According to the Court, the land was reserved for a public purpose way back in 2002 and the land owner could not use the land for any other purpose for ten years. After the expiry of ten years, the land owner had served a notice calling upon the respondents to acquire the land but still the land was not acquired. So, the land owner could not be deprived of the use of the land for years together. 

The Bench also clarified that the Statute has provided a period of ten years to acquire the land under Section 126 of the Act. Additional one year is granted to the land owner to serve a notice for acquisition prior to the amendment by Maharashtra Act No. 42 of 2015. Such time line is sacrosanct and has to be adhered to by the State or by the Authorities under the State. Thus, If the State was inactive for a long number of years, the Courts would not issue direction for acquisition of land, which is an exercise of power of the State to invoke its rights of eminent domain.

Allowing the Appeal and setting aside the direction to acquire the land within one year, the Apex Court held that the direction to acquire land within a period of one year was in fact contravening the time line fixed under the Statute.

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