Full Judgment Text
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CASE NO.:
Appeal (civil) 2152 of 2008
PETITIONER:
Poona Timber Merchants & Saw Mill Owners Association
RESPONDENT:
State of Maharashtra & Ors
DATE OF JUDGMENT: 27/03/2008
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
JUDGMENT
REPORTABLE
CIVIL APPEAL NO. 2152 OF 2008
(Arising out of S.L.P (Civil) No. 19501 of 2005)
With
C.A. No 2153 of 2008 (Arising out of SLP(C) No.19502/2005)
C.A. No 2154 of 2008 (Arising out of SLP(C) No.19503/2005)
C.A. No 2155 of 2008 (Arising out of SLP(C) No.19504/2005)
C.A. No 2156 of 2008 (Arising out of SLP(C) No.19020/2005)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. In all these cases certain provisions of the Maharashtra
Regional and Town Planning Act, 1966 (in short the ‘Act’) call
for determination. Basically the scope and ambit of Section
127 of the Act is the pivotal provision. Three writ petitions
were disposed of by the common judgment. Writ petition
no.7846 of 2004 was filed by M/s C.V. Shah and A.V. Bhat.
Writ petition no.9644 of 2004 was filed by Tajuddin
Mohhammadbhai while writ petition no.5077 of 2004 was filed
by Poona Timber Merchants and Saw Mill Owners Association.
By the common judgment the High Court partly allowed the
writ petition nos. 7846 and 9644 of 2004 while writ petition
no.5077 of 2004 was dismissed. The High Court while
granting partly relief in the writ petitions held as follows:
"(i) Writ Petition Nos. 7846 of 2004 and 9644 of
2004 are partly allowed.
(ii) The designation of the subject land being
survey no.577, Hissa No.1, Survey No.577,
Hissa No.2, Survey No.577, Hissa No.3 and
Survey No.578, Hissa No.1 (part) in revised
Development Plan of Pune City notified no.
5.1.1987 for ‘Timber Industries’ is declared to
have lapsed under Section 127 of the MRTP Act,
1966.
(iii) Writ Petition no.5077 of 2004 is dismissed.
No costs."
3. After hearing all these appeals were concluded, it is
noticed that scope and ambit of Section 127 came up for
consideration by this Court in Civil Appeal No.3703 of 2003,
civil appeal no.3922 of 2007 as three-Judge Bench was
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hearing the matter. Justice P.K. Balasubramanyan as his
Lordship was the then, inter alia, observed as follows:
"When we interpret Section 127 of the Act, it is
not possible to forget the impact of Section
126(l) of the Act. Obviously, the provisions have
to be read harmoniously. The court can only
postulate the question whether the authority
under the MRTP Act has done which it possibly
could, in terms of the statute. Therefore, while
reading Section 127, we have to take note of the
fact that the authority under the MRZ P Act can
only make an application for acquisition under
the Land Acquisition Act and nothing more.
Therefore, when Section 127 of the MRTP Act
says that if within six months from the date of
the service of such notice, the land is not
acquired or no steps as aforesaid are
commenced for its acquisition the reservation
shall be deemed to lapse. We have to see what
the Authority under MRTP Act has done. The
first part of the provision above quoted is
unambiguous and that is a case where the land
is actually acquired. Or, in other words, the
acquisition is complete. The second limb above
quoted shows that it is possible to avert the
lapse of the scheme if steps as aforesaid are
commenced for its acquisition. The step that the
authority under the MRTP Act can commence, is
the step of applying to the State Government to
acquire such land under the Land Acquisition
Act. After all, the legislature has given the
authority a locus poenitentiae for invoking the
machinery for acquisition under the Land
Acquisition Act. Therefore, when a purchase
notice is received by it, in all reasonableness,
what it can do is to make an application to the
State Government to make the acquisition
within six months of the receipt of the purchase
notice. Is it necessary or proper to whittle down
the locus poenitentiae given to ensure that even
at the last moment the lapsing of the scheme
can be averted by the authority under the MRTP
Act or even after ten years it can seek the
acquisition of the land on the receipt of the
purchase notice? It is in that context that in
Municipal Corporation of Greater Bombay vs.
Dr. Hakimwadi Tenants Association &. Ors.
(supra) this Court approved the view of the
Bombay High Court that it is enough if the
application is made by the Authority for
acquisition of the land. Suppose, immediately on
receipt of a purchase notice, the authority under
the MRTP Act makes an application to the
Government to acquire the land and for
administrative reasons or otherwise it takes the
Government time to initiate the proceeding and
the six months expire in between, can it be
postulated that the reservation has lapsed? In
that case we will be compelling the authority
under the MRTP Act to do something that it has
no power to do. According to me such an
interpretation of the provision would be
unreasonable and should be avoided. Here, the
application has been made according to the
respondents by the Chief Engineer as
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authorised by the local authority and to say that
the letter written by him is unauthorised or is
not adequate compliance of Section 127 of the
MRTP Act appears to me to be unwarranted
especially when we keep in mind the laudable
objects of the MRTP Act.
The MRTP Act serves a great social
purpose and the approach of the court to an
interpretation must be to see to it that the
social purpose is not defeated as far as
possible. Therefore, a purposive interpretation
of Section 127 of the Act so as to achieve the
object of the MRTP Act is called for.
I would, therefore, hold that there has
been sufficient compliance with the
requirement of Section 127 of the MR T P Act
by the authority under the Act by the
acquisition initiated against the appellant in
the appeal arising out of SLP(C) No.11446 of
2005 and the reservation in respect of the land
involved therein does not lapse by the
operation of Section 127 of the Act. But since
on the main question in agreement with my
learned Brothers I have referred the matter for
decision by a Constitution Bench, I would not
pass any final orders in this appeal merely
based on my conclusion on the aspect relating
to Section 127 of the MRTP Act. The said
question also would stand referred to the
larger Bench."
4. By a separate judgment Brother P.P. Naolekar for himself
and Brother B.N. Agrawal, inter alia, noted as follows:
"For this and the other reasons assigned by our
learned brother, we are in agreement with him
that the question involved requires consideration
by a larger Bench and, accordingly, we agree
with the reasons recorded by my learned brother
for referring the question to a larger Bench.
However, on consideration of the erudite
judgment prepared by our esteemed learned
brother Balasubramanyan, J., regretfully we are
unable to persuade ourselves to agree to the
decision arrived at by him on interpretation of
Section 127 of the MRTP Act and also reference
of the case to a larger Bench. Section 127 of the
MRTP Act is a special provision and would be
attracted in the peculiar facts and circumstances
mentioned in the Section itself. The Section
provides a procedure for the land owner to get
his land de-reserved if steps are not taken by the
State Government within the stipulated period
and the relief which the owner of the land is
entitled to is also provided therein. The steps to
be taken for acquisition of land as provided
under Section 127 of the MRTP Act have to be
taken into consideration keeping in mind the
time lag between the period the land is brought
under reservation and inaction on the part of the
State to acquire it. Section 127 of the MRTP Act
is a unique provision providing remedial
measure to the owner of the land whose land is
under the planning scheme for a long period of
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time, which would be interpreted in the facts and
circumstances of each individual case. It does
not have any universal application and,
therefore, the applicability thereof would depend
on the facts of each case. S.L.P.(C) No.11446 of
2005 titled M/s. S.P. Building Corporation and
Anr. v. State of Maharashtra and Others, is
required to be decided by this Bench only and,
therefore, we propose to decide as follows:"
5. In the fitness of things we, therefore, are of the view that
these cases need to be heard along with CA no.3703 of 2003
and CA no.3922 of 2007.
6. The matter may be placed before Hon’ble the Chief
Justice of India for necessary orders.