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2013 DIGILAW 709 (BOM)

Jaika Vanijya Limited v. State of Maharashtra

2013-03-22

B.P.DHARMADHIKARI, PRASANNA B.VARALE

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Judgment B.P. Dharmadhikari, J. 1. By this petition filed under Article 226 of the Constitution of India, the petitioners seek declaration that reservation of land of House No. 2032, Khasra No. 5/4, mouza Wanjri, Kamptee Road, Nagpur has lapsed and that land is now available for development as otherwise permissible in terms of Section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as 1966 Act). The petition is being opposed by Nagpur Improvement Trust which is respondent no. 2 as also by respondent no. 4 Nagpur Municipal Corporation. Affidavit in reply has been filed by respondents no. 4 and 5. No reply has been filed by the Nagpur Improvement Trust. 2. Petitioner no.1, a Company incorporated under the Companies Act, 1956 and its Director, petitioner no. 2 served a notice dated 7th October 2011 on Chairman, Nagpur Improvement Trust and also on Commissioner, Nagpur Municipal Corporation, Nagpur as per the provisions of Section 127 of the 1966 Act. Assistant Director of Town Planning, Nagpur Municipal Corporation (respondent no. 5) forwarded reply on 25.10.2011 and pointed out that notice was not accompanied by any title document and measurement map, no cognizance thereof would be taken till those documents were supplied. On 8.11.2011 petitioners supplied copy of Property Register as demanded in proof of their title. They also pointed out that 7/12 extract maintained under the Maharashtra Land Revenue Code and Measurement Map were not available. On 23.1.2012, the Nagpur Improvement Trust through its Superintending Engineer informed petitioners that notice needed to be served upon Appropriate Authority and as per Development Plan, Maharashtra State Road Transport Corporation (MSRTC) for whom reservation has been provided is/was that Authority. On 5th March 2012, respondent no. 5 informed petitioners that copy of Property Card/ Register, 7/12 extract and measurement map were not supplied till then and hence, notice would not come in force and invalid. 3. In this background, Mr. S.V. Manohar, learned Senior Advocate with Mr. A.A. Naik, learned counsel submits that expiry of period of ten years from publication of final development Plan and service of notice upon respondents no. 2 to 5 is not in dispute. Provisions of Section 127 of 1966 Act have been satisfied in present matter and as within a period of one year, the land has not been acquired, the same automatically gets dereserved. 2 to 5 is not in dispute. Provisions of Section 127 of 1966 Act have been satisfied in present matter and as within a period of one year, the land has not been acquired, the same automatically gets dereserved. He relies upon express language of Section 127 for said purposes. In alternative and without prejudice, he submits that said provision only requires property card to be supplied as a proof of interest/ownership and there is no need to supply revenue record or the measurement map. Petitioners supplied necessary Property Card on 8.11.2011 and hence, the notice became valid. As no action was taken within one year of that notice, the petition as filed is liable to be allowed. In support of his contention, he relied upon judgment of Honourable Apex Court in Krishna Kumar v. Phulchand Agarwala & ors reported at AIR 1977 SC 984 and the Division Bench judgment of this Court in Hirabai Dattatray & ors v. Sangli Miraj, Kupwada Mpl Corporation & anr. Reported at 2007 (5) Mh. L.J. 90. He also invites attention to a communication dated 2.3.2012 forwarded by panel Advocate of MSRTC to urge that therein the MSRTC has expressly indicated that it does not need the land in question. Hence, there is no question of respondents acquiring the same. 4. Mr. Kasat, learned counsel for respondents no. 4 and 5 has invited attention to reply affidavit. He submits that notice under Section 127 of 1966 Act as issued is not valid and as necessary documents were not annexed along with it, the petition based upon it is liable to be dismissed. He further states that the Municipal Authorities have on 5.3.2012 informed petitioners that petitioners should submit a proposal to accept transferable development rights so that the proposal for acquisition can be processed further in accordance with law. He relies upon the notice under Section 127 and language thereof to show that as notice is not of period of one year, it is invalid. Judgment reported in Perfect Machine Tools v. State of Maharashtra and ors reported at 2008 (2) Mh. L. J. 404 is pressed into service by him to submit that the law requires strict compliance with provisions of Section 127 of 1966 Act. 5. Judgment reported in Perfect Machine Tools v. State of Maharashtra and ors reported at 2008 (2) Mh. L. J. 404 is pressed into service by him to submit that the law requires strict compliance with provisions of Section 127 of 1966 Act. 5. Perusal of provisions of Section 127 reveals that notice contemplated thereunder is required to be served on Planning Authority, Development Authority or as the case may be, the Appropriate Authority. Petitioner is expected to give twelve months time to these Authorities to acquire the land. Proceedings for acquisition, therefore, need to be commenced within said period of 12 months. If the proceedings are not so commenced, the reservation of land is deemed to have lapsed. After such lapsing, the land is released from reservation and becomes available to owner for the purpose of development or otherwise as permissible in case of adjacent land under the relevant Development Plan. This provision has been amended in the year 2010 and period of twelve months has been substituted for earlier period of six months. Similarly, requirement of annexing with such notice documents showing title or interest on the said land also came to be added. 6. Provisions of Section 2 (3) of the 1966 Act define Appropriate Authority to mean any public authority on whose behalf, land is designated for a public purpose in any plan or scheme and which it is authorised to acquire. The definition of Development Authority given in Section 2 (8) is not relevant for present purposes. Section 2 (15) defines local authority and for the purposes of city of Nagpur, it is Nagpur Municipal Corporation and if area is within the jurisdiction of the Nagpur Improvement, it is Nagpur Improvement Trust. Section 2 (19) defines Planning Authority and it also includes local authority. 7. Here, it is not in dispute that reservation in Development Plan is for ST Stand vide Reservation No. MN58 and reservation for NMC Zonal Office vide Reservation No. MN108. Some part of it is also reserved for proposed 18 meter wide public road. 8. Perusal of notice dated 7th October 2011 sent by petitioners reveals that it is not served upon Maharashtra State Road Transport Corporation on whose behalf and for whose benefit reservation of ST Bus Stand has been provided. Notice calls upon respondents no. 2 to 5 to acquire the land within six months. 8. Perusal of notice dated 7th October 2011 sent by petitioners reveals that it is not served upon Maharashtra State Road Transport Corporation on whose behalf and for whose benefit reservation of ST Bus Stand has been provided. Notice calls upon respondents no. 2 to 5 to acquire the land within six months. Admittedly, the notice is not accompanied by any documents. We have already noted above that Section 127 (1) of 1966 Act requires documents showing interest of applicant to be annexed. On 9.11.2011 a property card showing title of petitioner no. 1 is already supplied. The Nagpur Municipal Corporation as on 25.10.2011 itself stated that notice would not be treated as valid till necessary documents are supplied. Reply affidavit filed by Nagpur Municipal Corporation, particularly paragraph 5 therein, does not dispute the supply of property card by petitioners on 9.11.2011. Only grievance made is about non-supply of measurement map. Since Measurement Map is not the statutory requirement, said demand by respondents no. 4 and 5 is unsustainable. After service of property card on 9.11.2011, lacuna in the notice is rectified. 9. Perusal of judgment in Krishna Kumar case (supra) shows that there the application was moved under the Mineral Concessions Rules framed under the Mines and Minerals (Regulation and Development) Act for prospecting licence. Fees were paid along with the application, but the same were found short. That shortfall was made good later on. The Honourable Apex Court has held that filing of application is one thing and completion of some annexed duty, which is legally separable, is another unless a statute or a rule provides otherwise. In this background, Honourable Apex Court has held that the rule no where stipulated that failure to submit correct fee at the time of application would make application void and invalid. Use of word shall in rule 9 (2) is found not conclusive to determine whether duty imposed thereby was mandatory or directory. Honourable Apex Court has noted that it is not the breach of every prescribed act that would render action totally ineffective or void. Though licence could not have been granted without making good the deficiency in fees, the bonafide application accompanied by incorrectly calculated fees through oversight cannot be treated as void. Honourable Apex Court has noted that it is not the breach of every prescribed act that would render action totally ineffective or void. Though licence could not have been granted without making good the deficiency in fees, the bonafide application accompanied by incorrectly calculated fees through oversight cannot be treated as void. Paragraph 6 of the judgment shows language of rule 9 and its requirement of application to be accompanied by a fee calculated in accordance with the provisions contained under Schedule II. 10. The Division Bench of this Court in Perfect Machine Tools case (supra) relied upon by learned counsel for respondents no. 4 and 5 needs to be considered in this background. There, while considering the provisions of Section 127 of the 1966 Act, the Division Bench of this Court has noted that it carves out an exception to the proceedings taken under Sections 125 and 126 of 1966 Act and also provides legal fiction and consequences which shall flow favourable to the owner in the event of default of concerned Authority to take steps as contemplated under Section 127. Question looked into is, whether provisions of Section 127 of the 1966 Act are mandatory. In paragraph 7, the Division bench has further observed that situation beneficial to the owner comes into existence on its own and as default or inaction in compliance by Appropriate Authority of the Statutory provisions of the Act to acquire results into legal fiction, it is obligatory upon beneficiary to comply with requirement of statutory provisions strictly. Conditions postulated under the provisions would be mandatory and not merely directory since the default has the effect of taking the land outside the ambit of acquisition/reservation. Thus, the compliance of the requirements of the provisions would be a condition precedent to the invocation of the right granting such benefit. Conditions postulated under the provisions would be mandatory and not merely directory since the default has the effect of taking the land outside the ambit of acquisition/reservation. Thus, the compliance of the requirements of the provisions would be a condition precedent to the invocation of the right granting such benefit. The interested person has to serve a notice on the Planning Authority, Development Authority or the Appropriate Authority, as the case may be and notice has to state that despite its reservation and after coming into force of final Development Plan for ten years the land has not been acquired, person giving notice who asserts his legal right and then still if within stipulated period after service of notice the land is not acquired or no steps as stated in Section 127 are taken, it is then that the land is deemed to be released from such reservation and becomes available to the land owner. 11. The judgment of Honourable Supreme Court in Krishna Kumar's case (supra) considers provisions of rule 9 of the Mineral Concessions Rules which do not carry any deeming provision or legal presumption. Section 127 of 1966 Act which carries the same has been interpreted by this Court to be mandatory and has also concluded that strict compliance with it is necessary. 12. Petitioners have placed reliance upon Division Bench judgment of this Court in the case of Hirabai Dattatraya case (supra). The said judgment considers the question whether notice dated 12th March 1998 served by Municipal Corporation on Power of Attorney Holder of petitioner/landowner calling upon them to produce certain information would arrest running of time of six months under Section 127 of the 1966 Act. Unamended provisions of Section 127 are looked into and at that time person issuing notice was not required to annexe document showing his title or interest in land and the Section gave Appropriate Authority or Planning Authority time of six months to initiate steps to acquire the land. Question has been answered by the Division Bench in paragraph 11. It has found that in facts before it, notice was served by Power of Attorney Holder and on 12th March 1998 the Municipal Corporation sent a notice to him. Question has been answered by the Division Bench in paragraph 11. It has found that in facts before it, notice was served by Power of Attorney Holder and on 12th March 1998 the Municipal Corporation sent a notice to him. The Division Bench has then considered documents called for one by one and then proceeded to decide the question whether period from service of notice calling copy of power of attorney and receipt of its copy would result in extending time or whether the period between the service of notice and receipt of information would only stand excluded. The Division Bench has then found that it was not possible to lay down a hard and fast rule as to extension or exclusion of time and it would depend on facts of each case. In facts before it, notice was held to be complete except as to information about power of attorney, the name of owner was disclosed. Thus, period between service of notice calling for copy of power of attorney and furnishing its alone has been excluded. Thus, period taken for supplying necessary documents has been excluded by the Division Bench. 13. In present facts, the notice served upon respondents no. 4 and 5 is dated 7th October 2011 and it appears that same has been served in Inward Section of respondents 2 to 5 on the very same day. Section 127 itself obliges petitioners to supply copy of document showing their title or interest in land. This requirement cannot be severed and interpretation of rule 9 of Mineral Concession Rules in Krishna Kumar case (supra) cannot save the situation for petitioners. It was not necessary for Corporation to remind petitioners in this respect. Still, Corporation forwarded reminder on 25.10.2011 and thereafter property card has been supplied on 9.11.2011. Though Corporation has stated that notice not accompanied by necessary documents cannot be treated as valid, its reminder dated 25.10.2011 itself accepts that after service of said documents upon it, the notice would become legal and valid. Hence, notice dated 7.10.2011 can be presumed to have become legal and complete and, therefore, enforceable from 9.11.2011. Respondents no. 4 and 5, therefore, ought to have either acquired land or taken steps leading to its acquisition within one year i.e. by 8th November 2012. 14. Mr. J. B. Kasat, learned counsel for respondents no. Hence, notice dated 7.10.2011 can be presumed to have become legal and complete and, therefore, enforceable from 9.11.2011. Respondents no. 4 and 5, therefore, ought to have either acquired land or taken steps leading to its acquisition within one year i.e. by 8th November 2012. 14. Mr. J. B. Kasat, learned counsel for respondents no. 4 and 5 has, however, pointed out that notice is invalid also on the ground that it stipulates period of only six months instead of period of one year. The period of one year is statutorily stipulated and petitioners, therefore, were duty bound to issue a notice mentioning that land should be acquired within said period of one year, but then perusal of the Division Bench judgment in Perfect Machine Tools case (supra) or then express language of Section 127 does not oblige landowner to stipulate said period in the notice. The owner has only to point out his interest in the land and further point out that though period of ten years has expired from the date of publication of final Development Plan, land has not been acquired. He is not required by Section 127 to call upon the Authority to take steps to acquire the land within stipulated period. The Authority on which notice is served is aware of the statutory obligations cast upon it thereby. If it fails to acquire land within said period after service of notice or then fails to take any steps towards acquisition within said period, reservation is deemed to have lapsed. The Division Bench judgment of this Court in Perfect Machine Tools case (supra) in paragraph 7 has noted that person issuing notice has only to assert his rights. Hence, mention of period of six months in notice dated 7.10.2011 by itself is not fatal to the claim of petitioner. 15. However, during arguments we have noted that though petitioners were duty bound to wait till 8.11.2012 and then approach this Court, they have filed the petition on 31.10.2012. This was pointed out to parties. Learned Senior Advocate has thereafter invited attention to the fact that this Court has taken cognizance on 22.11.2012 when it has passed first order in the matter. By that order dated 22nd November 2011 this Court has issued notice for final disposal, returnable on 6th December 2012. 16. This was pointed out to parties. Learned Senior Advocate has thereafter invited attention to the fact that this Court has taken cognizance on 22.11.2012 when it has passed first order in the matter. By that order dated 22nd November 2011 this Court has issued notice for final disposal, returnable on 6th December 2012. 16. In this connection judgment of Honourable Supreme Court in the case of Narsingh Das Tapadia v. Govardhan Das Partani & anr reported at AIR 2000 SC 2946 which considers the provisions of Section 138 of the Negotiable Instruments Act can be looked into. The Honourable Apex Court has noted that though complaint was filed before expiry of period of fifteen days from the date of service of notice, its cognizance was taken by the concerned Court after expiry of said period of fifteen days and, therefore, the complaint as filed was not held premature. Completion of offence after giving drawer of cheque time to pay is an integral part and very strict interpretation will be warranted. However, when consequences are only civil, those rigorous standards shall not be relevant. In facts before us, it is not the case of respondents no. 4 and 5 that after filing of present writ petition or till expiry of period of one year i.e. before 8.11.2012, they have initiated any steps leading to acquisition of the land in question. In fact, filing of petition is not envisaged under Section 127 and after lapse of one year, reservation is deemed to have lapsed and land released. Moreover, this Court is required to recognize and declare the consequences of such deemed lapsing and it has issued notice after expiry of period of one year from 8.11.2011. Hence, date on which declaration is being granted and not date of filing of writ petition is important. We are, therefore, not in position to hold that challenge as is being considered can be dismissed as premature. It is to be noted that no steps towards acquisition are initiated even till this date. 17. Petitioners, however, have not joined Appropriate Authority viz. Maharashtra State Road Transport Corporation as party respondent to this petition. They have remained satisfied with communication dated 2.3.2012 forwarded by one N. N. Kawale, Panel Advocate, MSRT, Nagpur to respondent no. 2. It is to be noted that no steps towards acquisition are initiated even till this date. 17. Petitioners, however, have not joined Appropriate Authority viz. Maharashtra State Road Transport Corporation as party respondent to this petition. They have remained satisfied with communication dated 2.3.2012 forwarded by one N. N. Kawale, Panel Advocate, MSRT, Nagpur to respondent no. 2. Said communication is filed along with petition as Annexure R. In said communication, the panel advocate has informed that land is not required by MSRTC for Bus Stand. He has further stated that if Civil Engineer of MSRTC, Mumbai has already informed by letter dated 13.11.2006 to the Urban Development Department of the State of Maharashtra accordingly. Copy of that letter dated 13.11.2006 is also produced on record by petitioners as Annexure-B. However, these communications by themselves are not sufficient to hold that MSRTC is not necessary party. Notice under Section 127 is also not issued to it. We, therefore, find that in absence of the Maharashtra State Road Transport Corporation as party respondent, declaration regarding MN58 as sought for cannot be granted by this Court. If 18 meters wide road has got any bearing on this reservation of Bus Stand, the said reservation for road also cannot be touched. 18. Petitioners have in writ petition prayed for granting any other relief or direction as this Court may deem fit and proper in the facts and circumstances of the case. We accordingly direct respondents no. 4 and 5 to verify whether lands are still required by MSRTC. If the lands are not required by MSRTC, reservation for it is not determinative and does not survive. The reservation for public road then also loses its significance. In that event, said reservation and reservation for Zonal Office of Municipal Corporation vide MN108 already lapse from 9.11.2012 and hence, entire land then becomes free from reservation. In that event, the petitioners become entitled to use it in accordance with the provisions of Section 127 of the 1966 Act. Respondent no. 4 being Planning Authority, we direct respondent no. 4 to ascertain said need of MSRTC within period of three months from today and if MSRTC is not ready and willing, and is not interested in acquisition, the reservation of Bus Stand and public road also shall then be declared to have lapsed by respondent no. Respondent no. 4 being Planning Authority, we direct respondent no. 4 to ascertain said need of MSRTC within period of three months from today and if MSRTC is not ready and willing, and is not interested in acquisition, the reservation of Bus Stand and public road also shall then be declared to have lapsed by respondent no. 1 by publishing a gazettee notification as per Section 127 (2) of the 1966 Act. 19. With these directions and observations, petition is disposed of by making rule absolute accordingly. No costs.