2013 Supreme(Bom) 690

Bombay High Court
PRASANNA B. VARALE, B. P. DHARMADHIKARI, JJ.
Jaika Vanijya Limited
Vs
The State of Maharashtra
Decided On : 22/3/2013

Headnote:Maharashtra Regional and Town Planning Act, 1966 - Section 127 - Notice under. - Notice under Section 127 of Act is required to be given to authorities, by giving them 12 months time to acquire land. - 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.

       Maharashtra Regional and Town Planning Act, 1966 - Section 127 - Constitution of India, Article 226 - Declaration of deemed lapsing of reservation. - Since notice under Section 127 of Act not served upon MSRTC and MSRTC also not impleaded as party respondent hence declaration that reservation of land for MSRTC lapsed, cannot be granted. - The reservation for public road then also loses its significance. In that event, said reservation and reservation for Zonal Office of Municipal Corporation vide MN-108 already lapsed 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, Court 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.

       Maharashtra Regional and Town Planning Act, 1966 - Section 127 - Notice for acquisition of land under. - If proceedings for acquisition of land not commenced within period of 12 months from date of notice issued under Section 127 of Act, reservation of land deemed to have lapsed. - In the case of Narsingh Das Tapadia v. Govardhan Das Partani and another, reported at AIR 2000 SC 2946 : 2001 (1) All MR 525 (SC) : 2001 All MR (Cri) 561 (SC) 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.

       It is not the case of respondent Nos. 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. Court is, 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.

       Maharashtra Regional and Town Planning Act, 1966 - Section 127 (as amended) - Validity of notice under. - Where proceedings for acquisition of land, lapsed, therefore notice for release of land from reservation is legal and valid. - 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.

       In present facts, the notice served upon respondents 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.

       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, therefore, ought to have either acquired land or taken steps leading to its acquisition within one year i.e. by 8th November 2012.