Writ Petition No. 2041 of 2007

12th June, 2008

Petitioner Counsel: Mr. H. R. SHARMA
Respondent Counsel: Ms. A. K. SAVLA

Cases Cited:
Girnar Traders Vs. State of Maharashtra, 2007 ALL SCR 2232 : 2007(7) SCC 555 [Para 1]
Perfect Machine Tools Co. Ltd. Vs. State of Maharashtra, 2008(2) Mh.L.J. 404 [Para 2]

JUDGMENT

SWATANTER KUMAR, C.J.:- While relying upon the judgment of the Supreme Court in the case of Girnar Traders Vs. State of Maharashtra and others, 2007(7) SCC 555 : [2007 ALL SCR 2232] the petitioner prays that this court may issue a writ of mandamus and declare as well that the plot of land admeasuring 345 sq.yard, situated on land bearing CTS No.4 at village Gondavli, Andheri (East), Mumbai to be dereserved as the reservation has lapsed in terms of section 127 of the MRTP Act. The petitioner claims that he had purchased this property on 18.11.1985 but he was not aware as to whether the property was reserved or not. According to the petitioner, the bigger plot adjoining to the land in question was reserved and in fact, had been developed by the respondents. On 4th February, 1992, the petitioner wrote a letter to the Developing Authority i.e. Assistant Welfare Commissioner and requested him to inform the petitioner about the fate of the said plot. The petitioner was asked to show the documents. Thereafter, the respondent No.1 on 9.9.2002 served a letter to the Architect with the development plans. According to the petitioner, the respondents had not taken any steps in development of the said plot and period of 10 years had lapsed. Resultantly, the proceedings are taken up for dereservation of the plot which the petitioner is entitled to develop in accordance with law. Reply affidavit has been filed on behalf of the Corporation wherein the allegations made by the petitioner have been denied and it is stated that as per the revised sanctioned development plan of K/East Ward, the land bearing CTS No.4 at village Gondavli has been reserved for public purpose of play ground and widening of existing road. It is admitted that a part of the said larger reserved land is already developed as a playground. It is averred that no notice as contemplated under section 127 of the MRTP Act has been served upon the petitioner. The letter dated 4.2.1992 addressed to the Assistant Welfare Commissioner Regional Office is being misconstrued. The same cannot be treated as notice under section 127 and in absence of purchase notice, no further action was required to be taken. The letter written by the Architect of the petitioner on 28th December, 1995 was in response to an application for grant of transferable development rights and not for benefit of the provisions of section 127 of the Act. The notice and its service is emphatically denied by the respondents. In terms of the development plan, the property in question is reserved for public purpose and the petitioner is not entitled to any relief.

2. At the very outset, we may refer to the Division Bench judgment of this court in the case of Perfect Machine Tools Co. Ltd. Vs. State of Maharashtra and others, 2008(2) Mh.L.J. 404 wherein the court held as under:

"14. This is the special provision and is an exception to the general rule of compulsory acquisition. Thus, the application of rule of strict compliance would be the obvious provision. The Division Bench of this Court in the case of C.V. Shah and A. V. Bhat Vs. State of Maharashtra, 2006(3) Bom.C.R. 216 : [2005(3) ALL MR 197] held as under:

22. Section 136 of the MRTP Act, 1966 provides, inter alia, that any notice required under the MRTP Act may be served upon the Principal Officer of the local authority and if such notice is addressed to the Principal Officer of the local authority that shall be deemed to be duly served on the local authority. It is not in dispute that the Commissioner is the Principal Officer of the Municipal Corporation. The contention that the expression "any person" in section 136 does not include the Planning Authority is wholly fallacious. The expression any person is too wide and comprehensive and includes both natural and unnatural person. That would include the local authority is clear from Clause (a) of sub-section (1) of section 136 itself. We may immediately notice here that the Planning Authority is defined as 'local authority' in section 2(19) and the 'local authority' in section 2(15) means, inter alia, the Municipal Corporation constituted under the Bombay Provincial Municipal Corporations Act, 1949 (For short, 'BPMC Act'). That the Pune Municipal Corporation is the Municipal Corporation constituted under the BPMC Act is not in doubt.

23. Moreover, section 152 of the MRTP Act, 1966 also provides that the powers and functions of the Planning Authority shall inter alia for the purposes of section 136 be exercised and performed in the case of Municipal Corporation by the Municipal Commissioner or such other officer as he may be appointed in this behalf. Thus, the notice contemplated in section 127 of the MRTP Act, 1966 on the Planning Authority if served on its Principal Officer is a good service."

15. The counsel for the petitioner relied upon the judgment of the Supreme Court in the case of Jute and Gunny Brokers Ltd. Vs. Union of India and others, AIR 1961 SC 1214 to contend that service on a managing agent has been treated and held to be service on Principal Officer of the Company and on that analogy, the service was held to be valid particularly when it was replied to by the said authority. We are not impressed with this contention. The case relates to the service as contemplated under Order 29, Rule 2 of the Code of Civil Procedure and on ratio decidendi, the law would not be applicable to the facts of the present case. Under Rule 2A of Order 29, the service could be affected on a Corporation of a statutory body on the Secretary or any director or either Principal Officer of the Corporation. The Supreme Court had taken the view keeping in view the liberal language used by the Legislature in those provisions. In contradistinction to that, the provision of section 127 of the Act read with sections 2(19) and 136 of the Act makes it mandatory that notice should be served upon the Principal Officer of the Planning Authority viz. the Municipal Corporation of Greater Mumbai.

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20. The contention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. The aforereferred provisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention."

3. In view of the above settled principle, the onus was upon the petitioner to show that he had complied with the provisions of section 127 of the Act. The petitioner has placed on record the copy of the letter dated 4.2.1992 addressed by him to the respondents. Firstly, this letter is addressed to the Assistant Welfare Commissioner, Regional Officer, Andheri, Mumbai and does not refer to any of the ingredients as spelt out under section 127 of the Act nor does it claim relief in terms of that section. Thus, this notice cannot be treated as a purchase notice under section 127 of the Act. The concept of dereservation as contended by the petitioner would not be applicable to the facts and circumstances of the present case. The provisions of section 127 of the Act have to be construed strictly and the process being an exception to the process of reservation of plot cannot be so liberally construed as to treat the letter dated 4.2.1992 as a notice under the statutory provisions. Vide letter dated 28.12.1995, the Architect of the petitioner had written for issuance of TDR certificate. This letter was responded to by the respondents and certain details were asked for. As such, it is evident from the documents filed in the court that the petitioner never served a notice upon the respondents as contemplated under section 127 of the Act. In view of these circumstances, we do not find any merit in this writ petition. The stand taken by the respondents before us is correct. Therefore, the writ petition is dismissed by leaving the parties to bear their own costs.

Petition dismissed.