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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
VASANTI A NAIK, SWAPNA JOSHI, JJ.
Vishnu Vasant Developers; a Partnership Firm – Petitioner
Versus
State of Maharashtra, through Secretary, Urban Development Department and Ors. –Respondents
WRIT PETITION NO. 3904 of 2016
Decided On : 22-12-2016
It is a cardinal principle of construction that every statute would normally be prospective unless it is expressly or by necessary implication made to have a retrospective operation. Court does not find anything in the amending Act or the amended provisions of Section 127(1) of the Act that expressly or by necessary implication provides that the amended provisions of Section 127(1) of the Act would have a retrospective operation. On the date of service of the notice under Section 127(1) of the Act on the respondent No. 2 on 6.1.2015, as per the unamended provisions that were then in force, the land of the petitioners would have been released from reservation had the respondent No. 2 failed to take effective steps for the acquisition of the land within twelve months from 6.1.2015. If Court apply the amended provisions of Section 127(1) of the Act to the proceedings that commenced in pursuance of the service of the notice on the respondent No. 2 on 6.1.2015, it would result in construing that the amended provisions of Section 127(1) of the Act are retrospective in nature. The amended provisions of Section 127(1) of the Act would have a retrospective operation as that is not the express or implied intention of the amending Act. Proceedings initiated under Section 127(1) of the Act in view of the service of the notice on the respondent No. 2 appropriate authority, in Court`s view, would not be affected by the amended provisions unless they are intended to so affect, by express words or by necessary implication. It is not the case of the respondents that the amended provisions of Section 127(1) of the Act have, by express words or by necessary implication, retrospective operation.
If a right is accrued to an owner or an interested person under Section 127 of the Act to secure his land on the expiry of twelve months from the date of service of the notice on the appropriate authority, the said right cannot be curtailed by the amended provisions of Section 127(1) of the Act that are not intended to operate retrospectively. A right conferred by a statute on a person serving the notice under Section 127(1) of the Act to seek a declaration of the deemed lapsing of the reservation on the expiry of a period of twelve months, if effective steps are not taken by the appropriate authority within twelve months, cannot be destroyed by the amending Act that enhances the period of twelve months to twenty-four months unless the amending Act is retrospective. Dixon C.J. has succinctly formulated that "the general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty to be understood, has applied to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to past events". Had the petitioners served a notice on the respondent No. 2 after the provisions of Section 127(1) were amended on 29.8.2015, the respondent No. 2 would have been well within its right to take effective steps for the acquisition of the land within twenty-four months. The amended provisions of Section 127(1) of the Act that extend the period for taking effective steps to twenty-four months, as against twelve months, as provided by the unamended provisions would not be applicable to a matter where the owner or any person interested in the land has served a notice on the planning or the appropriate authority, as the case may be, before the amended provisions came into effect on 29.8.2015. Admittedly, since the respondents have not taken any effective steps for the acquisition of the land of the petitioners within twelve months from the service of the notice, dated 6.1.2015, the declaration as sought by the petitioners needs to be granted.
VASANTI A NAIK, J.
Whether the amended provisions of Section 127 (1) of the Maharashtra Regional and Town Planning Act, 1966 that enlarge the period within which the planning/development or appropriate authority could take effective steps for the acquisition of the land would apply to the proceedings initiated in pursuance of a purchase notice served on the authority before the amended provisions came into effect, is a question that falls for consideration in this petition.
2. RULE. Rule made returnable forthwith. The petition is heard finally at the stage of admission with the consent of the learned counsel for the parties.
3. The facts giving rise to this writ petition are brief and are stated thus :
The petitioners are the owners of 0.54 Hectares of land in Pusad and the said land was reserved for primary school under the final development plan published on 26.07.1998. As the planning or the appropriate authority, i.e. the respondent no.2 did not acquire the land within ten years from the date of publication of the final development plan, the petitioners served a notice under Section 127(1) of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as 'the Act' for the sake of brevity), on the respondent no.2, on 06.01.2015. As per provisions of Section 127(1) of the Act, that were in force on 06.01.2015, the appropriate authority was required to take effective steps for the acquisition of the land within twelve months from the service of the notice or else the reservation of the land would be deemed to have lapsed. On the date of service of the notice on the respondent no.2 on 06.01.2015, as per the provisions of Section 127(1) of the Act, the land would be deemed to have been released from reservation for primary school and the same would have become available to the petitioners for the purpose of development, if effective steps were not taken for the acquisition of the land within twelve months from the date of service of the notice. Before the expiry of the period of twelve months from 06.01.2015, the provisions of Section 127(1) of the Act were amended and by the amendment that was brought into effect on 29.08.2015, the period of twelve months to take effective steps was enlarged and the appropriate authority was permitted to take steps within twenty four months. According to the petitioners, since the petitioners have a right to develop their land in view of the deemed lapsing if the appropriate authority failed to take effective steps within twelve months from the date of service of the notice on 06.01.2015, the petitioners have filed the instant petition seeking a declaration that in view of the unamended provisions of Section 127(1) of the Act, that would apply to the petitioners, the reservation of the land of the petitioners is deemed to have lapsed as the respondent no.2 has failed to take effective steps for the acquisition of the land within twelve months from the service of the notice.
4. Shri Deshpande, the learned counsel for the petitioners, submitted that after the petitioners served a notice under Section 127(1) of the Act on the respondent no.2, on 06.01.2015, the respondent no.2 did not take any effective steps for the acquisition of the land. It is stated that section 6 notification (or a notification under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013) as required by the judgment in the case of Girnar Traders Versus State of Maharashtra & Others, reported in (2007) 7 SCC 555 is not issued by the respondent no.2, till this date. It is stated that the amended provisions of Section 127(1) of the Act that permit the appropriate authority to take effective steps for the acquisition of the land within twenty four months as against twelve months, as provided by the unamended provisions, would not apply to the case of the petitioners as the proceedings under Section 127(1) of the Act commenced in the
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