Clarifying the Distinction Between “Notice” and “Notification” Under Section 41(1) of the MHADA Act and Enforcing the Maximum Requisition Period

1. Introduction

The Bombay High Court’s judgment in Dnyaneshwar Lingappa Bhosale (Since Deceased) through LRs. and Others v. State of Maharashtra through the Secretary and Others, decided on January 6, 2025, addresses critical questions about the interplay between the Bombay Land Requisition Act, 1948 (“Requisition Act”) and the Maharashtra Housing and Area Development Act, 1976 (“MHADA Act”).

The petitioners, owners of certain plots in Solapur, faced the continued requisition of their lands under a July 1987 order made pursuant to the Requisition Act. They challenged the legality of prolonged requisition beyond twenty-four (24) years and argued that no valid acquisition took place under section 41(1) of the MHADA Act, because there was only a “notice” to show cause, rather than a “notification” confirming the decision to acquire.

The key issues included:

• Whether the mere issuance of a notice under the proviso to section 41(1) of the MHADA Act constitutes acquisition, thereby vesting ownership in the State;
• Whether the statutory maximum period for requisition (24 years from the date of taking possession) had expired, thereby obliging the government to release the property or fully acquire it;
• The consequences for the petitioners’ rights (to regain their property or receive acquisition compensation) if the requisition period was exceeded.

The judgment clarifies that property does not vest in the Government simply by issuing a preliminary show-cause notice under the MHADA Act. Instead, a final notification under section 41(1) must be published in the Official Gazette to complete the acquisition. Additionally, the Court enforced the principle that a requisition cannot continue indefinitely and must comply with the maximum periods set out in the Requisition Act.

2. Summary of the Judgment

In its decision, the Bombay High Court held:

1. No Valid Acquisition Under Section 41(1) of the MHADA Act Without Final Notification: The Court found that only a provisional notice dated August 24, 1987, calling for objections, had been issued; no final notification stating that the State Government “has decided” to acquire the lands was ever published in the Official Gazette. Consequently, the properties did not vest in the State or any other authority under section 41(3) of the MHADA Act.
2. Exceeding the Maximum Requisition Period Is Illegal: Relying on section 9(1A) of the Requisition Act, as amended, the Court emphasized that the maximum period during which land may be requisitioned is 24 years. Because the lands were requisitioned through an order dated July 9, 1987, that 24-year period had expired on or around July 8, 2011.
3. Exclusive Right to Acquire Within a Fixed Time or Restore Possession: The Court granted the government and relevant authorities one year to initiate and complete valid acquisition procedures. Failing that, the authorities would have to restore possession of the properties to the petitioners in as close to their original condition as feasible.
4. Costs Awarded: The Court also directed the payment of costs by the authorities to the petitioners, given the delayed and protracted deprivation of the petitioners’ property rights.

3. Analysis

3(a). Precedents Cited

The Court referred to several important cases:

• H. D. Vora v. State of Maharashtra (1984) 2 SCC 337: Here, the Supreme Court underscored that requisition is intrinsically a temporary measure and cannot continue for an unreasonably long time. Where the public purpose is effectively permanent, the Government must acquire the property rather than keeping it under perpetual requisition.
• Grahak Sanstha Manch & Ors. v. State of Maharashtra (1994) 4 SCC 192: The Supreme Court reaffirmed that requisitioning of land is inherently short-term. While requisition orders can be for a permanent public purpose, they cannot endure indefinitely. The Court again observed that once the period becomes unreasonably long, the matter moves into the realm of illegal deprivation.
• Dr. Mohammad Ali Nawabsaheb Wadwan v. State of Maharashtra 2016 (1) Mh.L.J. 883: A Division Bench of the Bombay High Court discussed near-identical questions about prolonged requisition in Solapur. It held that any land under requisition for a protracted period should be returned if not lawfully acquired, emphasizing the 24-year upper limit for requisition established under section 9(1A) of the Requisition Act.

In contrast, the respondents sought to rely on Balu Siddhu Bhosale (since deceased) v. State of Maharashtra, where land had actually been acquired by publication of a final notification under section 41(1) of the MHADA Act. However, the Court distinguished that case because in the instant matter no such final notification had ever been issued.

3(b). Legal Reasoning

The crux of the Court’s legal reasoning hinges on the distinction between the notice (under the proviso to section 41(1) MHADA Act) and the notification (as mandated by section 41(1) itself):

• The proviso to section 41(1) requires that before the Government publishes a final notification, it must first serve a notice on those concerned, inviting their objections. This step alone is preliminary—it is not proof of completed acquisition.
• The final notification under section 41(1) must declare that “the State Government has decided to acquire the land,” and must be published in the Official Gazette. Only upon the publication of such a notification does section 41(3) operate, vesting the land absolutely in the Government, free from encumbrances.
• Since only a notice and not a final notification was issued here, the properties never legally vested in the authorities under the MHADA Act.
• Regarding the Requisition Act, the Court noted the explicit maximum 24-year rule under section 9(1A). After that time lapses, continued retention of land under requisition is illegal. Here, no valid acquisition occurred, but the authorities had held the land far beyond the permissible requisition period.

3(c). Impact

This judgment has significant implications:

• Upholding Due Process: It clarifies that for the State to acquire private property, a conclusive process under section 41(1) of the MHADA Act or other valid legislation must be strictly followed. Government authorities cannot rely on partial steps (like a show-cause notice) to claim ownership.
• Establishing Clear Limits on Requisition: The Court reasserted that 24 years is the maximum for land requisition in Maharashtra. Authorities may not hold on to properties indefinitely without either releasing them or lawfully acquiring them through compensation.
• Guidance on Future Cases: Any similar attempt by state bodies to treat a show-cause notice as tantamount to acquisition will likely fail. Henceforth, government authorities are on notice to document each acquisition step meticulously, including the final notification publication.
• Rebalancing Public vs. Private Interests: While government development projects are significant, the Court reinforced property rights as “constitutional and even human rights” that cannot be dispossessed absent full legal compliance and fair compensation.

4. Complex Concepts Simplified

• “Requisition” vs. “Acquisition”:
  • Requisition: The Government temporarily takes over possession/control of land for a public purpose. The original owner retains ownership, but cannot possess the land during requisition.
  • Acquisition: The Government permanently takes title to the property. The original owner’s full ownership (title and possession) is transferred to the State in exchange for compensation.
• Section 41(1) MHADA Act – Notice vs. Notification:
  • Notice under the Proviso: The government only “proposes” acquisition and invites objections from interested parties. By itself, this does not finalize acquisition.
  • Notification under Section 41(1): A formal declaration by the Government that it has decided to acquire the land. Once published in the Official Gazette, the land vests “absolutely” in the State (per section 41(3)).
• Maximum Requisition Period: Under Section 9(1A) of the Requisition Act, this is 24 years from the date possession was initially taken. After that time, continuing requisition is illegal.

5. Conclusion

This judgment reaffirms the principle that the Government cannot bypass a final notification under the MHADA Act by relying on a mere show-cause notice to treat land as acquired. The Court also firmly applied the 24-year upper limit for requisition under the Requisition Act, emphasizing the temporary nature of requisition.

In practical terms, the authorities are given a final opportunity to follow due legal process—either properly acquire the land by publishing a valid notification under section 41(1) of the MHADA Act and paying the petitioners adequate compensation, or restore possession of the land to its rightful owners. The Court’s recognition of property as constitutionally and humanly significant underscores that even public projects must honor procedural safeguards and just compensation requirements.

This ruling sets a decisive precedent:

• That a verifiable “notification” in the Official Gazette distinguishes a valid acquisition from a mere proposal under section 41 of the MHADA Act;
• That continuing requisition beyond legally defined limits is invalid; and
• That individuals deprived of their properties can insist upon either lawful acquisition or restoration of possession.

Hence, the Court’s judgment ensures that both state authorities and property owners uphold due process, reinforcing a fair balance between public interest and private property rights.