Writ Petition No.4167 of 2008

26th April, 2013

Petitioner Counsel: Mr. S.S. Kulkarni
Respondent Counsel: Mr. G.S. Hegde,Mr. A.M. Kulkarni,Mr. D. Khambatta,Ms. N.R. Nariman,J.S. Deo

Cases Cited:
Girnar Traders Vs. State of Maharashtra and others, 2007 ALL SCR 2232 : (2007) 7 SCC 555 [Para 5]
Afcons Infrastructure Limited and another Vs. Cherian Varkey Construction Company Private Limited and others, (2010) 8 SCC 24 [Para 9,20]

JUDGMENT

JUDGMENT :- By this writ petition under Article 226 of the Constitution of India, the petitioners have prayed for quashing and setting aside the acquisition proceedings in respect of the lands more particularly set out in the notification at Exhibit-H (hereinafter referred to as "the said lands") to the petition. The acquisition is under the provisions of the Land Acquisition Act,1894 (hereinafter referred to as "the said Act"). The petitioners have also prayed for a declaration that section 117 of the Maharashtra Regional and Town Planning Act,1966 (hereinafter referred to as "the MRTP Act") is hit by Part III of the Constitution of India and is unreasonable, ultra virus and discriminatory.

2. With a view to appreciate the submissions made by the learned counsel for the petitioner, learned counsel for the first respondent and the learned Advocate General appearing for the second and third respondents, it will be necessary to make a reference to the facts of the case in brief.

3. The first respondent is the City and Industrial Development Corporation Limited. It is a Government company within the meaning of Companies Act,1956. In exercise of powers under sub-section (3) of section 113 of the MRTP Act, the first respondent company has been declared to be a New Town Development Authority for the site of New Town of Navi Mumbai (New Bombay) designated under sub-section 1 of section 113 of the MRTP Act.

4. It is pointed out that the State Government on 3/4th February 1970 published a notification under section 4(1) of the said Act declaring its intention to acquire various lands in village Wadghar, Taluka Panvel, District Raigad including the said lands allegedly held by the petitioners. It is contended that as far as the said lands held by the petitioners are concerned, Award under section 11 of the said Act was not made and as a result, the acquisition lapsed. It is contended that the first respondent-company has been appointed as the New Town Development Authority way back in the year 1973. It is contended that the petitioners are the tenants of Yakub Baig Trust in respect of the said lands. It is submitted that though it is the obligation of the respondents to acquire the said lands being a part of the site of Navi Mumbai, the respondents have failed to perform the said obligation.

5. It is pointed out that the petitioners filed Writ Petition No.2816 of 2007 in this Court for seeking a direction against the respondents to acquire the said lands in a time bound schedule and to pay compensation in respect thereof to the petitioners. On 20th July 2007, Writ Petition was disposed of by a Division Bench of this Court by observing that the petitioners can follow the provisions of section 49 and/or section 127 of the MRTP Act. This Court observed that in absence of such remedies being adopted, it would be inappropriate to direct the respondents to acquire the lands. Subject to what is observed above, the petition was rejected. On 21st August 2007, the petitioners issued a notice under section 117 read with section 127 of the MRTP Act to the first respondent as well to the second and third respondents (the City and Industrial Development Corporation Limited, the Special Land Acquisition Officer and the State of Maharashtra respectively). By a reply dated 12th September 2007, the first respondent informed the petitioners that a proposal has been forwarded for acquisition of the said lands to the Collector, District Raigad. It is alleged in the petition that thereafter no steps have been taken by the respondents for acquisition of the said lands by publishing notifications under the said Act. It is contended that thus the reservation has lapsed in view of the decision of the Apex Court in case of Girnar Traders Vs. State of Maharashtra and others [(2007) 7 Supreme Court Cases 555] : [2007 ALL SCR 2232].

6. During the pendency of this petition, on 24th April 2011, a notification was issued by the Divisional Commissioner of Konkan Division by which the said lands were notified for acquisition under section 4(1) of the said Act. By the said notification, urgency clause under section 17 of the said Act was applied and it was declared that the provisions of section 5(A) of the said Act will not apply to the acquisition of the said lands. It is alleged that a declaration under section 6 was thereafter not published during the statutory period and therefore, the said acquisition has lapsed.

7. There is a reply filed by Shri Abhiraj Gajanan Girkar, the Assistant Director of Town Planning, Raigad-Alibag to this petition. It is contended therein that under the notifications dated 28th March 1971 and 16th August 1973, the areas specified therein have been declared as site for New Town of Navi Mumbai. It is stated that vide notification dated 18th August 1979 and 18th January 1980, the State Government sanctioned the Development Plan for the area comprising in the site for New Town of Navi Mumbai and the said Development Plan was brought into force with effect from 1st March 1980. It is alleged that the said lands bearing Survey no.23/1 and Survey no.38 of Village Wadghar claimed by the petitioners have been included in the residential zone in the Development Plan. It is stated in the affidavit that as a notification under section 4(1) has been issued on 27th April 2011, the process of issuing notification under section 6 is going on and therefore, appropriate direction may be issued by this Court to complete the acquisition of the said lands within a time bound programme.

8. The learned counsel for the petitioners invited our attention to the various provisions of the MRTP Act. He pointed out that under section 117 of the MRTP Act, only the owner of the land falling within the site of a New Town is entitled to serve purchase notice to the State Government or Development Authority. But under section 127 of the MRTP Act, not only the owner but any person interested in the land which is reserved under the Development Plan is entitled to serve purchase notice. He submitted that section 117 which allows only the owner to serve purchase notice is discriminatory. He submitted that the object of both sections 117 and 127 is the same. He submitted that by virtue of both the provisions, the lands which are reserved stand released from reservation on the failure of the concerned authorities to take steps for acquisition within the stipulated time after service of a notice in writing. He urged that while enacting section 117, there was no reason for the legislature to discriminate between the owner and the person interested in the lands such as a lessee. He submitted that there is no reason for excluding the persons interested such as lessees from the facility of serving a notice under section 117 of the MRTP Act. He, therefore, submitted that section 117 to the extent of depriving any person interested other than the owner an opportunity of serving notice will have to be declared as arbitrary, unreasonable and hit by Articles 14,19,21 and 300A of the Constitution of India.

9. In the alternative, he submitted that the omission to exclude the persons interested in land from section 117 is a mistake committed by draftsman. He submitted that it may be a case of "Causus Omissus". He submitted that therefore, while interpreting section 117, instead of literal interpretation, a recourse to purposive interpretation with a view to save section 117 from the arbitrariness will have to be taken. The learned counsel for the petitioner relied upon the decision of the Apex Court in case of Afcons Infrastructure Limited and another Vs. Cherian Varkey Construction Company Private Limited and others [(2010) 8 Supreme Court Cases 24]. He, therefore, submitted that "the persons interested" in the lands will have to be read into section 117 of the MRTP Act if the said section is to be saved from the vice of arbitrariness hit by Article 14 of the Constitution of India.

10. The learned Advocate General appearing for the State of Maharashtra submitted that sections 117 and 127 operate in altogether different fields and hence, argument of discrimination is not available. He submitted that for valid reasons, the legislature chosen to exclude the persons interested in the lands from the purview of section 117 of the MRTP Act. He urged that as sections 117 and 127 operate in different fields, literal interpretation of section 117 will have to be made. The learned counsel for the first respondent supported the submissions of the learned Advocate General and urged that there is no merit in the challenge to the validity of section 117 of the MRTP Act.

11. With a view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to make a reference to the scheme of the MRTP Act. Sub-section 23 of section 2 defines a Region. A Region means any area established to be a Region under section 3 of the MRTP Act. Under section 3, a power is conferred on the State Government to establish any area in the State by defining its limits to be a Region for the purposes of the MRTP Act. By a notification published in the official gazette, a Regional Planning Board is required to be constituted by the State Government by exercising a power under section 4 of the MRTP Act. The Regional Board is to be constituted for the purpose of planning, development and use of land in the Region constituted under section 3. The Regional Plan under sections 14 and 15 for a Region is to be made by the Regional Board.

12. Sub-section 19 of section 2 defines a Planning Authority. The Planning Authority is a Local Authority within the meaning of sub section 15 of section 2. The Local Authority includes municipal councils and municipal corporations. The Development Plan under section 22 is required to be prepared in respect of the areas falling within the jurisdiction of the Planning Authority. The Planning Authority is entrusted with the function of preparation of a Development Plan. From the scheme of the MRTP Act it appears that a Region is a larger area which may comprise of areas falling within the limits of more than one Planning Authority. Thus, a Regional Plan under section 14 is for a wider area than the area covered by a Development Plan under section 22. Therefore, it appears that the Regional Plan provides for broader details as provided in clauses (a) to (k) of section 14 of the MRTP Act. Clauses (a) to (k) reads thus :

(a) allocation of land for different uses, general distribution and general locations of land, and the extent to which the land may be used as residential, industrial, agricultural, or as forest, or for mineral exploitation;

(b) reservation of areas for open spaces, gardens, recreation, zoological gardens, natural reserves, animal sanctuaries, dairies and health resorts;

(c) transport and communications, such as roads, highways, railways, waterways, canals and airports, including their development;

(d) water supply, drainage, sewerage, sewage disposal and other public utilities, amenities and services including electricity and gas;

(e) reservation of sites for new towns, industrial estates and any other large scale development or project which is required to be undertaken for proper development of the Region or new town;

(f) preservation, conservation and development of areas of natural scenery, forests, wild life, natural resources, and landscaping;

(g) preservation of objects, features, structures or places of historical natural, architectural or scientific interest and educational value;

(h) areas required for military and defence purposes;

(i) prevention of erosion, provision for afforestation or, reforestation,improvement and redevelopment of water front areas, rivers and lakes;

(j) proposals for irrigation, water supply and hydroelectric works, flood control and prevention of river pollution;

(k) providing for the relocation of population or industry from over populated and industrially congested areas, and indicating the density or population or the concentration of industry to be allowed in any area.

13. From section 22 of the MRTP Act it is apparent that a Development Plan provides for details as compared to a Regional Plan which covers broader aspects. Clauses (a) to (l) of section which provide for the contents of a Development Plan 22 reads thus:

"(a) proposals for allocating the use of land for purposes, such as residential, industrial,commercial, agricultural, recreational;

(b) proposals for designation of land for public purpose, such as schools, colleges and other educational institutions, medical and public health institutions, markets, social welfare and cultural institutions, theaters and places for public entertainment, or public assembly,museums, art galleries, religious buildings and government and other public buildings as may from time to time be approved by the State Government;

(c) proposals for designation of areas for open spaces, playgrounds,stadia, zoological gardens, green belts, nature reserves, sanctuaries and dairies;

(d) transports and communications, such as roads, highways, parkways, railways, waterways, canals and airports, including their extension and development;

(e) water supply, drainage, sewerage, sewage disposal, other public utilities, amenities and services including electricity and gas;

(f) reservation of land for community facilities and services;

(g) proposals for designation of sites for service industries, industrial estates and any other development on an extensive scale;

(h) preservation, conservation and development of areas of natural scenery and landscape;

(i) preservation of features, structures or places of historical, natural, architectural and scientific interest and educational value [and of heritage buildings and heritage precincts];

(j) proposals for flood control and prevention of river pollution;

(k) proposals of the Central Government, a State Government, Planning Authority or public utility undertaking or any other authority established by law for designation of land as subject to acquisition for public purpose or as specified in a Development Plan, having regard to the provisions of section 14 or for development or for securing use of the land in the manner provided by or under this Act;

(l) the filling up or reclamation of low lying, swampy or unhealthy areas, or leveling up of land;

Section 43 of the MRTP Act provides that after the date on which a declaration of intention to prepare a Development Plan is published in Official Gazette, no person can carry out any development of any land without permission in writing of the Planning Authority. Section 44 provides for an application to be made for permission for development and section 45 provides for power to grant or refuse permission for development. Section 46 provides that the Planning Authority while considering the application for permission for development shall have due regard to the provisions of any draft or final Plan published by means of notice submitted or sanctioned under the MRTP Act. Thus, if a land in respect of which development permission is sought is reserved for a public purpose in any draft or final Plan, the Planning Authority is required to reject the application for development which inconsistent with the Development Plan.

14. As set out earlier, under section 14, the Regional Plan may provide for allocation of different uses, such as residential, industrial, agricultural or as a forest. It may provide for reservation for gardens, nature reserve, animal sanctuaries etc. The Regional Plan may provide for sites of New Town. Under section 22, a Development Plan may contain proposal for allocating the use of a particular land for residential, industrial, commercial, agricultural or recreational purpose. A Development Plan under section 22 may contain proposals for use of a particular land for a particular purpose. As distinguished from the Regional Plan, the Development Plan may contain proposals for designation or reservation of a particular land for public purposes set out in clause (b) of section 22 as well as proposals for designation of a specified area for open spaces, garden etc, as provided in clause (c)of section 22. Thus, under the Development Plan, specific lands can be reserved for specific public purpose. The Development Plan can allocate a particular user for a particular land such as residential, industrial, commercial etc.

15. As far as release of lands reserved for public purpose under the Development Plan is concerned, there are two relevant provisions section 49 and section 127 of the MRTP Act which need to be considered. Section 49 applies in case of a land which is designated by a Plan as a subject to compulsory acquisition or land allotted by a Plan for the purpose of any functions of a Government or Local Authority or Statutory Body or a land indicated in any Plan as a land on which highway is proposed to be constructed or included. Section 49 also applies when the owner of a land because of its designation or allocation in any Plan claims that he is unable to sell it except at lower price than that at which he might reasonably have been expected to sell, if it were not so designated or allocated. In such a case the owner or the person affected is entitled to serve on the State Government a notice containing prescribed particulars in a prescribed manner (called as a purchase notice) requiring the Appropriate Authority to purchase interest in the land in accordance with the provisions of the MRTP Act. If within the period of six months from the date on which such purchase notice is served, the State Government does not pass any final order thereon,the notice shall be deemed to have been confirmed at the expiration of that period. It is further provided that if within a period of one year from the date of confirmation of the notice, Appropriate Authority fails to make an application to acquire land in respect of which purchase notice has been confirmed, the reservation, designation, allotment, indication or restriction on the development of the land shall be deemed to have been lapsed. In such a case, land becomes available to the owner for the purpose of development otherwise permissible in case of adjacent land under the relevant Plan.

Section 127 of the MRTP Act reads thus:

"127 (1) If any land reserved, allotted or designated for any purpose specified in any Plan under this Act is not acquired by agreement within ten years from the date on which a final Regional Plan, or final Development Plan comes into force [or if a declaration under sub-section (2) or (4) of section 126 is not published in the Official Gazette within such period, the owner or any person interested in the land may serve notice, alongwith the documents showing his title or interest in the said land, on the Planning Authority, the Development Authority or as the case may, the Appropriate Authority to that effect; and if within twelve months] from the date of service of such notice, the land is not acquired or no steps as aforesaid are commenced for its acquisition, the reservation, allotment or designation shall be deemed to have lapsed and thereupon the land shall be deemed to be released from such reservation, allotment or designation and shall become available to the owner for the purpose of development as otherwise permissible in the case of adjacent land under the relevant Plan.

(2) On lapsing of reservation, allocation or designation of any land under sub-section (1), the Government shall notify the same, by an order published in the Official Gazette."

Section 127 applies to any land reserved, allocated or designated for any purpose specified in any Plan under the MRTP Act. Section applies if such land is not acquired by an agreement within 10 years from the date on which final Regional Plan or final Development Plan comes into force or if declaration under sub-section 2 or sub-section 4 of section 126 is not published within a period of 10 years. In such a case, the owner or any person interested in the land is required to serve a notice on the Planning Authority or the Development Authority or the Appropriate Authority. If within the prescribed period of 12 months from the date of service of such notice, the land is not acquired or if any steps are not commenced for its acquisition, the reservation, allocation or designation of the land shall be deemed to have been lapsed. In such a case, the land shall be deemed to be released from such reservation, allocation or designation and shall become available to the owner for the purpose of development as otherwise permissible in case of adjacent land under the relevant Plan. Thus, section 49 is broadly applicable to the lands specified in three categories set out in clauses (a), (b) and (c)of sub-section 1 of section 49 which we have set out above. Section 127 applies in case of a land reserved/allocated/designated for any purpose specified. Section 127 comes into picture when there is a failure to take steps for acquisition of such land within a period of 10 years from the date on which final Regional Plan or final Development Plan comes into force.

16. Now we turn to section 117 which reads as under:

"117. Obligation to purchase designated land

Where any land within the area designed by a notification under section 113 of this Act as the site of the new town has not been [acquired by the State Government or a Development Authority constituted under sub-section (2) of section 113] within a period of ten years from the date of the notification, any owner of the land may by notice in writing [served on the State Government or the Development Authority] require it to acquire his interest therein; and thereupon, the provisions to section 127 providing for lapsing of reservations shall apply in relation to such land as they apply in relation to land reserved under any Plan under this Act.

17. Under sub-section 1 of section 113 of the MRTP Act, the State Government has power to issue a notification designating any area as a site for a New Town provided the area is reserved or designated in any draft or final Regional Plan for a New Town. Thus, only an area reserved or designated as a site of New Town in draft or final Regional Plan can be declared as a site of a New Town. In the present case, there is a declaration of a site for the New Town of Navi Mumbai and the first respondent is the New Town Development Authority for the area comprising of the said site. Under section 113(A), the State Government has a power to acquire a land for a New Town Development Authority which is falling within the area designated as a site for the New Town or any land adjacent to that area which is required for the purpose of development of the New Town.

18. On Plain reading of section 117, the same comes into picture only when any land within the area designated as a site of a New Town is not acquired by the State Government or a Development Authority constituted under sub-section (2) of section 113 within a period of 10 years from the date of the notification of declaration of an area as a site of a New Town. In such a case, the owner of the land is empowered to serve a notice in writing to the State Government or to the Development Authority requiring it to acquire his interest in the land and thereupon, the provision of section 127 providing for lapsing of reservation shall apply in relation to the said land. Thus, the effect of service of notice under section 117 is that if steps for acquisition of the land are not taken within a period of 12 months from the date of service of notice, there is a lapsing of reservation of the said land as a part of the site of a New Town in any draft or final Regional Plan. Thus, the effect is that on failure to acquire the land within a period of 12 months from the date of service of notice under section 117, the reservation of the land in question as a site for a New Town in the draft or final Regional Plan lapses. Section 127 of the MRTP Act is applicable when the land is reserved, allocated or designated for any purpose specified in any Plan whether Regional or development and when the same is not acquired within the period of 10 years from the date on which final Regional or Development Plan comes into force. Section 117 is applicable when any land falling within the area designated notified by sub-section 1 of 113 as a site of New Town is not acquired within the period of 10 years from the date of the notification. In case of section 127, on the failure to take steps for acquisition within the period of 12 months from the date of service of notice, the reservation, allocation or designation lapses and the owner is entitled to develop the land for the user specified for the adjacent land in the plan. But in a case where section 117 is attracted and is invoked, after service of a notice under section 117, the designation of the land as a part of a site of a New Town lapses.

19. Thus, on plain reading of sections 49,127 and 117, it is crystal clear that sections operate in different fields. The consequences provided in the three sections as a result of failure to act upon the notice provided therein are different. In case of sections 49, the legislature has chosen to confer a right of issuing notice on owner and "person affected". Under section 127, the legislature has chosen to permit the owners and the "persons interested" in the land to serve notice as provided therein. In case of section 117 which operates in an altogether different field, only the owner is empowered to serve purchase notice. The aforesaid three sections operate in different situations which provide for different consequences. Hence, the argument based on discrimination is not available to the petitioners.

20. It will be necessary to make a reference to the decision of the Apex Court in case of Afcons Infrastructure Limited and another (supra). Paragraph 20 of the said decision reads thus :

"20. The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by this Court in a somewhat different context:

"6. . When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, judges cannot afford to be wiser."

(See Shri Mandir Sita Ramji v. Lt. Governor of Delhi4, SCC p. 301, para 6.)

There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance with a provision impossible, or absurd or so impractical as to defeat the very object of the provision. We may also mention purposive interpretation to avoid absurdity and irrationality is more readily and easily employed in relation to procedural provisions than with reference to substantive provisions." (emphasis added)

21. In the present case, the words used in section 117 are clear and unambiguous. If plain and normal meaning is given to section 117, it does not lead to any confusion or repugnance with other provisions. Wherever the legislature intended, it has conferred a right to serve notice on the person interested (see section 127) or person affected (see section 49) in addition to the owner. The said words are missing in Section 117. As we have already held, the three sections operate in different fields or situations. Therefore, we cannot accept the argument that there is a defect or mistake of the draftsman while drafting the provisions of section 117. The exclusion of the persons interested from the said provision does not appear to be a mistake. Therefore, normal rule of giving plain and normal meaning to a section will have to be followed and the exception to the normal rule cannot be invoked. Therefore, the argument of purposive interpretation cannot be accepted in the present case.

22. Hence, the notice purportedly issued by the petitioners under section 117 of the MRTP Act was liable to be rejected as section does not empower the petitioners who are admittedly claiming to be lessees to serve the said notice. Only the owner is empowered to serve notice under the said provision.

23. As far as the lapsing of acquisition initiated under notification dated 27th April 2011 is concerned, even as of today, the statutory period provided for declaration under section 6 of the said Act has not expired in as much as the public notice in terms of section 4(1) appears to have been issued on 23rd June 2011. The last date of publication of the said notification is not on record. Even the affidavit of the Assistant Director of Town Planning records that the process is going on. Considering the facts of the case, it will be necessary for the State to complete the acquisition as expeditiously as possible and to make an Award within a period of one year from today.

24. Subject to what is observed above, petition must fail and accordingly we pass the following order :

(a) The Petition is rejected and Rule is discharged with no order as to costs;

(b) We direct that the acquisition of the said lands shall be completed expeditiously in accordance with law and an Award under section 11 of the said Act shall be declared within a period of one year from today;

(c) Parties to act upon an authenticated copy of this order.

Ordered accordingly.