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2021 DIGILAW 1696 (BOM)

Prakash S/o. Ramchandra v. State Of Maharashtra

2021-12-09

DIPANKAR DATTA, V.G.JOSHI

body2021
JUDGMENT DIPANKAR DATTA,C.J. 1. This writ petition is directed against a communication dated December 24, 2018 issued by the Town Planning Authority and Chief Officer, Municipal Council, Khamgaon (hereafter "the Chief Officer"). The said communication, issued in response to a purchase notice dated February 9, 2018 issued by the petitioners refers to objections raised by Shri Shashimohan Shyamsunder Tapadia and two others (hereafter "the private respondents") and conveys to them that since there is a dispute regarding ownership and boundaries of the plot in question, the purchase notice cannot be entertained. Copy of the objection of the private respondents was enclosed with the communication. 2. It is not in dispute that the revised Development Plan of Khamgaon city was published in the Official Gazette on September 30, 1993 and came into force from November 1, 1993 as per the provisions of the Maharashtra Regional Town Planning Act, 1966 (hereafter "the MRTP Act"). In terms of such development plan, Survey No. 123, Khamgaon has been reserved for a children's park. The petitioners claim to be the owners of a piece and parcel of land measuring .35 R out of Survey No. 123 (hereafter "the said land"). Such ownership is claimed by reason of purchase of the said land from the erstwhile owners. It also their claim that the relevant entry in the 7/12 extract is proof of the petitioners' ownership in respect of the said land. Since the reservation was not given effect to despite lapse of more than 10 years, the petitioners by their notice dated February 9, 2018 called upon the Municipal Council to purchase the said land or to acquire the same. It was in pursuance of such a notice that the impugned communication came to be made. 3. Our attention has been drawn by Mr. Sharma, learned advocate for the petitioner to a decision of the Division Bench of this Court reported in 2018 (4) Mh. L.J. 454 : Abdul Gani N. Wadwan vs. State of Maharashtra and others to support the contention that sec. 127 of the MRTP Act does not require the sender of the notice to produce documents of title but documents showing title would be sufficient and that entries in the 7/12 extract would constitute sufficient material to come to the conclusion that such notice sender is the person interested in the land, even if he is not the owner thereof. 127 of the MRTP Act does not require the sender of the notice to produce documents of title but documents showing title would be sufficient and that entries in the 7/12 extract would constitute sufficient material to come to the conclusion that such notice sender is the person interested in the land, even if he is not the owner thereof. On the basis of the aforesaid decision, it is contended by Mr. Sharma that the relevant entry in the 7/12 extract in respect of the said land would have been sufficient to demonstrate the interest of the petitioners therein and, if only the Chief Officer had granted an opportunity of hearing to them, the petitioners could have persuaded him to entertain the purchase notice upon overruling the objection of the private respondents. 4. Mr. Kale, learned advocate for the respondent no. 4/Municipal Council has, while resisting the writ petition, referred to the objection of the private respondents at page 84 of the writ petition as well as an order dated February 16, 2018 passed by a coordinate Bench of this Court in Writ Petition No. 3533/2017. According to him, such writ petition was at the instance of the private respondents and the Court had allowed the same declaring that reservation of land of the petitioners [private respondents herein] in Survey No. 123 ad-measuring 1 Hectare 80 R, Mouza Khamgaon, for primary school, garden and playground stands lapsed in view of the provisions of sec. 127(1) of the MRTP Act and also that the said petitioners would be free to develop such land as per law. The contention, therefore, is that the Municipal Council in refusing to entertain the notice served by the petitioners, did not commit any illegality for which interference of this Court would be warranted. 5. We have heard the parties and perused the materials on record. It is recorded that the private respondents despite being served have not appeared before us today. 6. 5. We have heard the parties and perused the materials on record. It is recorded that the private respondents despite being served have not appeared before us today. 6. It is evident from the order dated February 16, 2018 passed in Writ Petition No. 3533/2017 that the petitioners therein had served purchase notice dated June 18, 2004 on the respondents on June 21, 2004 in respect of land ad-measuring 1 Hectare 80 R, whereas the petitioners have claimed ownership by virtue of a purchase deed dated October 15, 2013 of the said land admeasuring .35 R; however, both lands are bearing the same Survey No. 123. It could be so that the said land over which the petitioners claim ownership and/or interest may not be the same which the private respondents own or might have interest. We could have obtained a clarification from the private respondents had they appeared and filed a reply affidavit. Because of their absence, recourse thereto is also not an available option. In our opinion, in such peculiar facts and circumstances, it would have been desirable if the Chief Officer of the Municipal Council prior to issuing the impugned communication dated December 24, 2018 had attempted to verify whether the private respondents were claiming interest in respect of the said land for which the purchase notice was issued. This could have been achieved if the petitioners and the private respondents were called for a hearing and the rival claims in respect of the said land measuring .35 R verified and an appropriate decision given for the purpose of entertaining the purchase notice. Although sec. 127 does not in terms provide for any opportunity of hearing to be given either to the sender of the purchase notice or the objector, it does not at the same time exclude natural justice either expressly or by implication. Law seems to be well-settled that even if a statute is silent and there are no positive words in the relevant legislation, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed thereunder, and making it a requirement to follow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary, and no form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand. We are inclined to hold on the basis thereof that since the communication dated December 24, 2018 has the effect of prejudicing the rights and interest of the petitioners, adhering to natural justice by granting an opportunity of hearing to contradict the objection of the private respondents becomes presumptive and would have been in consonance with a fair procedure. 7. We are also inclined to the view that an opportunity of the nature indicated above would largely enable the sender of a purchase notice to dispel any doubt that an officer might have or contradict any prima facie conclusion reached by him on receiving an objection which, though apparently attractive for a purchase notice not to be entertained, could lack in substance. The aim of natural justice being to secure justice as well as to prevent its miscarriage, the cause of justice would be sufficiently served if such an opportunity is given (not in all cases but depending upon the facts of each case). 8. For the view that we have taken above but without expressing any opinion of the merits of the rival claims raised by the petitioners as well as the private respondents, we set aside the communication dated December 24, 2018 and require the Chief Officer of the Municipal Council to arrange a hearing of the private parties to verify whether there is any worth in the objection raised by the private respondents. Documents placed before him shall be given due consideration. Thereupon, the Chief Officer shall proceed to pass an appropriate order in accordance with law. Let this exercise be completed as early as possible but not later than 3 months from the date of receipt of a copy of this order. We make it clear that if the petitioners' prayer is granted, the period of 24 months referred to in sub-sec. (1) of Sec. 127 of the 1966 Act shall be reckoned from the date the decision is given by the Chief Officer. 9. Writ Petition No. 916/2020 stands disposed of, without costs. All contentions are left open. 10. We make it clear that if the petitioners' prayer is granted, the period of 24 months referred to in sub-sec. (1) of Sec. 127 of the 1966 Act shall be reckoned from the date the decision is given by the Chief Officer. 9. Writ Petition No. 916/2020 stands disposed of, without costs. All contentions are left open. 10. In view of the aforesaid order, nothing survives for decision in Writ Petition No. 2093/2020. The same too stands disposed of accordingly. 11. Pending application(s), if any, also stand(s) disposed of.