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CASE NO.: Appeal (civil)  2152 of 2008

PETITIONER: Poona Timber Merchants & Saw Mill Owners Association

RESPONDENT: State of Maharashtra & Ors

DATE OF JUDGMENT: 27/03/2008

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: JUDGMENT 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:

"(i) Writ Petition Nos. 7846 of 2004 and 9644 of  2004 are partly allowed. (ii) 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. (iii) 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

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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

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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

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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.