Poona Timber Merchants & Saw Mill Owners Association Vs. State of Maharashtra
& Ors [2008] INSC 526 (27 March 2008)
Dr. ARIJIT PASAYAT & S.H. KAPADIA 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:
-
"Writ Petition Nos. 7846 of 2004 and 9644 of 2004 are partly
allowed.
-
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.
-
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
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 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 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.
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