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Construction : Legal Zone | August 2015 | Source : CW-India

Unfreezing the Frozen

To unfreeze the reservation of any land, the owner has to follow the statutory provisions as contemplated under the MRTP Act, say ARADHANA BHANSALI and AMIT KOLEKAR.

The Maharashtra Regional and Town Planning Act 1966 (MRTP Act) contains provisions relating to preparation of regional plan, development plan, plans for comprehensive developments, town planning schemes and such plans and schemes where the land is reserved for public purpose. The preparation of development plans aims to ensure that town planning schemes or development of areas are made in a proper manner and their execution is made effective; to provide for the creation of new towns with the assistance of development authorities; to make provisions for the compulsory acquisition of land required for public purposes in respect of the plans; and for purposes connected thereto. The reservation of land for a particular purpose being in the nature of schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theatres and places for public entertainment, etc, under the MRTP Act is done through a complex exercise, which begins with land use map, survey, population studies and several other complex factors.

Reservation, designation and allocationThis is for the first time that the legislature deemed fit to bring into effect and implement the concept of ¨reservation, designation and allocation¨ by virtue of the provisions of Section 22 of the MRTP Act.

ò The provisions of the MRTP Act provide that if any land is reserved or allocated or designated in the development plan, regional plan or a town planning scheme for a public purpose, such land is deemed to be land needed for a public purpose within the meaning of the Land Acquisition Act 1894 and now, the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act 2013 (Land Acquisition Act 2013).

  • If any land is required or reserved for any of the public purposes specified in such a plan, the planning authority or any other appropriate authority (¨Appropriate Authority¨) itself may acquire the land, inter alia, by making an application to the state government for acquiring such land under the Land Acquisition Act 1894 (now the Land Acquisition Act 2013). The other two modes of acquisition by the Appropriate Authority are by agreement with the landowner and by allotment of transferable development rights in favour of the owner, in lieu of the owner, relinquishing his rights to the land. Earlier, the acquisition of land under the Land Acquisition Act 1894 would commence by issuing a declaration in the Official Gazette in the manner provided under Section 6 of the Land Acquisition Act 1894 and such declaration was required to be made within one year from the date of publication of the development plan. However, if such a declaration is not made within the period specified or if the other contingencies provided for in the provision exist, the state government may make a fresh declaration in which event the market value of the land will be determined as on the date of the fresh declaration under the provisions of the Land Acquisition Act 2013.

  • Section 127 of the MRTP Act deals with lapsing of reservations and provides that if the land reserved, allotted or designated for any purpose specified in any plan under the MRTP Act is not acquired by agreement within 10 years from the date on which the final regional or development plan had come into force or if steps for the acquisition of such land under the MRTP Act or under the Land Act 2013 are not commenced within the said period of 10 years, the owner or any person interested in the land may serve notice to the concerned authority and if within 12 months from the date of service of such notice the land is not acquired or no steps are taken for its acquisition, the reservation is deemed to have lapsed and the land is deemed to be released from such reservation and becomes available to the owner for the purpose of development or otherwise, permissible in the case of adjacent land under the relevant plan.

Freezing of land parcels
Owing to reservation of land parcels for specific use, the use of such parcels is frozen for such a dedicated purpose, leaving the owner with only two options: Either to develop himself for such reserved public purpose or calling upon the Appropriate Authority to acquire such land for developing it for reserved public purpose.

Unfreezing the frozen
To unfreeze the frozen reservation of any land, the owner of such land has to rigorously and religiously follow the statutory provisions as contemplated under Section 126 and Section 127 of the MRTP Act; and to give effect to the ultimate release of the land, the owner of the land has to serve a purchase notice upon the Appropriate Authority to acquire the reserved land or release the land from reservation. If, within 12 months, i.e. one year from the date of service of notice, the Appropriate Authority does not take substantive steps for acquiring the land, the reservation is deemed to have lapsed, and the land parcel becomes available to the landowner for the purpose of development as otherwise permissible in the case of adjacent land.

Tedious task behind unfreezing the land
To unfreeze frozen land is a tedious and time-consuming task, and only after the period of 10 years having expired and the Appropriate Authority not having acquired the reserved land through any of the prescribed modes, do the provisions of Section 127 come into operation. Further, only if no steps are taken by the Appropriate Authority to acquire such land in the prescribed manner is such reservation deemed to have lapsed, and thereafter, a duty is cast on the government to notify such lapse in the Official Gazette. Thus, even after the ´deemed´ lapse of the reservation, the landowner is still at the mercy of the state government or needs redress through the court mechanism for publication of notification declaring lapse of the reservation of the land in the Official Gazette before actually commencing with the development of such land.

Judgements
A few judgements that highlight the mechanism for lapse of the reservation of the land, where the Courts have come down heavily on the Appropriate Authority for stampeding the rights of the owner by not taking substantive steps of acquisition as contemplated under the MRTP Act as also the provisions of Section 126 and Section 127 being sacrosanct in nature, are:

  • Girnar Traders vs State of Maharashtra and Ors (2007) 7 SCC 555): The Court emphasised that if any private land was shown as reserved in the development plan, the same could be acquired within 10 years either by agreement or by following the procedure prescribed under the Land Acquisition Act 1894; and if proceedings for the acquisition of the land were not commenced within that period and a further period of six months (now 12 months) from the date of service of notice under Section 127 of the MRTP Act, reservation would be deemed to have lapsed and the land would be available for development by the owner.
  • Godrej & Boyce Manufacturing Company Ltd vs State of Maharashtra & ORS (2015 (2) ALL MR(SC) 921): It was held by the Court that the proposed amendment by the development authority cannot be made and the words of Section 127 are clear on the point that once the proposed time limit has passed, no amendment can be made in the proposed development plan after the said period and the land is free for development.

Conclusion
Our world is rapidly transforming into a global village, where physical borders and boundaries that confined people within geographical limits have gradually faded into imaginary boundaries. People today are global citizens who constantly migrate, move and explore newer pastures. At the onset of the 21st century and the increase in density of population, city planners and engineers along with lawmakers and executors have to rethink their plans to develop cities. It is against this backdrop that the development of smart city initiatives has been announced by Indian Prime Minister Narendra Modi, where the government is aiming to recast the urban landscape of the country by making cities more liveable and inclusive, and drive economic growth. The Maharashtra Government and the Indian judiciary have, therefore, been proactive in striking a balance between the people´s need for public and open spaces and the right of the owners of vast land.

To sum up, despite unfreezing land being a time-consuming process, the Indian judiciary has been quick in disposing of various cases regarding the lapse of reservation in favour of landowners to pave the way for the purpose of development.

About the Authors:
Aradhana Bhansali, Partner, Rajani, Singhania & Partners, handles the real-estate and trust-related practice of the firm.

Amit Kolekar, Principal Associate, Rajani, Singhania & Partners, has experience in real estate and civil litigation.

 
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