Vishnuvasant Developers Thr. ... vs State Of Maharashtra Thr. ...
2016 Latest Caselaw 7588 Bom

    WP 3904/16                                         1                          Judgment

           IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                     NAGPUR BENCH, NAGPUR.




                                                                                      
                         WRIT PETITION NO. 3904/2016




                                                              
    1.     VishnuVasant  Developers; a Partnership Firm,
           Through its Partners:
    1-a.   Santosh S/o Vishnupant Nilawar,
           Aged about 40 years, Occ-Business,
           R/o C/o Krishi Vikas Kendra, Netaji Market,




                                                             
           Digras, Tq. Digras, Distt. Yavatmal.
    1-b.   Sunil S/o Laxmanrao Mukkawar,
           Aged about 42 years, Occ-Business,
           R/o Digras, District Yavatmal.




                                               
    1-c.   Dattatraya S/o Tukaram Banginwar,
           Aged about 56 years, Occ-Business,
                              
           R/o Digras, District Yavatmal.
    1-d. Nandkumar S/o Natha Bhaskarwar,
         Aged about 64 years, Occ-Business.
                             
    R/o Pusad, Tq. Pusad, District Yavatmal.                                PETITIONERS

                                       .....VERSUS.....
    1.     State of Maharashtra,
           through Secretary,
      


           Urban Development Department,
           Mantralaya, Mumbai.
   



    2.     Municipal Council Pusad,
           Dist. Yavatmal.                                                      RESPONDENTS
                         Shri N.S. Deshpande, counsel for the petitioners.
            Shri Nikhil Joshi, Assistant Government Pleader for the respondent no.1.





                     Shri P.P. Deshmukh, counsel for the respondent no.2.

                                        CORAM :SMT. VASANTI A  NAIK AND
                                                     MRS. SWAPNA JOSHI, JJ.   

DATE : 22 ND DECEMBER, 2016.

ORAL JUDGMENT (PER : SMT. 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

WP 3904/16 2 Judgment

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

WP 3904/16 3 Judgment

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)

WP 3904/16 4 Judgment

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 case of the petitioners on the date

of service of the notice under Section 127(1) of the Act on the

respondent no.2. It is stated that it is well settled that a statute would

operate prospectively unless it is expressly or by necessary implication

made to operate retrospectively. It is stated that there is nothing in the

amending Act that provides expressly or by necessary implication that the

amended provisions of the Act would be retrospective in operation. It is

stated that it is held by the Division Bench of this Court in the judgment

reported in 2015(1) Mh.L.J. 719 (Shantaram Shankar Jamsandekar &

Others Versus State of Maharashtra & Others) that if the land is not

acquired within ten years from the publication of a final development

WP 3904/16 5 Judgment

plan, an independent right would be accrued to a person under Section

127 of the Act of 1966 in view of the inaction on the part of the

appropriate authority to acquire the land by agreement within ten years

from the commencement of the final development plan. It is stated that

the petitioners had a legal right to issue a purchase notice on the

respondent no.2, as held by this Court in the judgment reported in the

case of Shantaram (supra) as the respondent no.2 had failed to acquire

the land within ten years from the date of publication of the final

development plan. It is stated that a further right is accrued in favour of

the petitioners on the date of service of the notice on the appropriate

authority that the reservation of the land would lapse if effective steps are

not taken by the appropriate authority for the acquisition of the land

within twelve months. It is stated that the right of the petitioners to seek

a declaration in respect of the lapsing of the reservation on the expiry of

twelve months in view of the inaction on the part of the appropriate

authority cannot be taken away by the amended provisions. It is stated

that though almost twenty three months have lapsed from the date of

service of the notice, the respondent no.2 has not taken any effective

steps for the acquisition of the land. It is stated that in the circumstances

of the case, it would be necessary to declare that the reservation of the

land of the petitioners has lapsed in view of the unamended provisions of

Section 127(1) of the Act.

WP 3904/16 6 Judgment

5. Shri Joshi, the learned Assistant Government Pleader

appearing for the State of Maharashtra, has opposed the prayer made in

the writ petition. It is stated that the right in the petitioners to seek a

declaration in respect of deemed lapsing would have been crystalized

only on the expiry of twelve months if no effective steps were taken by

the respondent no.2 and since the amended provisions are brought on the

statute book before the expiry of twelve months, the petitioners would

not have a right to seek a declaration of deemed lapsing, in view of the

unamended provisions of the Act.

6. Shri Deshmukh, the learned counsel for the respondent no.2,

does not dispute that the notice under the provisions of Section 127(1) of

the Act was served on the respondent no.2, on 06.01.2015. It is also not

disputed that effective steps were not taken by the respondent no.2 for

the acquisition of the land within twelve months from the date of service

of the notice. It is stated that the amended provisions of Section 127 of

the Act would apply to the case in hand, as before the expiry of the period

of twelve months, the provisions of Section 127 of the Act were amended,

thereby permitting the respondent no.2 to take effective steps within

twenty four months as against twelve months, as provided under the

unamended statute. It is stated that since the amended provisions of

Section 127(1) of the Act came into force on 29.08.2015, the case of the

petitioners would be governed by the amended provisions. It is stated

WP 3904/16 7 Judgment

that the object of enlarging the period for taking effective steps was to

grant further time to the appropriate authorities that were not in a

position to complete the necessary formalities for the acquisition of the

land within twelve months. According to the learned counsel, the

petition is premature as the period of twenty four months would expire

only on 06.01.2017.

7. 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. We do 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 06.01.2015, 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 06.01.2015. If we 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 06.01.2015, it would result in construing that the amended

provisions of Section 127(1) of the Act are retrospective in nature. We

WP 3904/16 8 Judgment

are not inclined to hold that 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 our 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. The Hon'ble Supreme Court has held in the judgment in the

case of Girnar Traders (supra) that the underlying principle envisaged in

Section 127(1) of the Act is either to utilize the land for the purpose it is

reserved in the plan in a given time or let the owner utilize the land for

the purpose it is permissible under the town planning scheme. It is

observed by the Hon'ble Supreme Court that on a conjoint reading of the

provisions of Section 126 and 127 of the Act, it is apparent that the

legislative intent is to expeditiously acquire the land reserved under the

town planning scheme. When a particular period is prescribed for taking

effective steps for the acquisition of the land, the owner or person

interested would be governed by the time frame that is provided at the

time, when the service was effected, if the amended provisions are not

retrospective. This Court has, in the case of Shantaram (supra), held that

an independent right is accrued in favour of a person under the provisions

WP 3904/16 9 Judgment

of Section 127(1) of the Act, on the failure on the part of the appropriate

authority to acquire the land within ten years from the publication of the

final development plan. It was held that a legal right was accrued in

favour of the petitioners in view of the inaction on the part of the

appropriate authority to acquire the land within ten years from the date

of publication of the final development plan and the petitioners therein

were within their legal right to issue a purchase notice to the appropriate

authority calling it to acquire the land. 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

WP 3904/16 10 Judgment

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 29.08.2015, 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. In our considered view, 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

29.08.2015. 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 06.01.2015, the

declaration as sought by the petitioners needs to be granted.

8. Hence, for the reasons aforesaid, the writ petition is allowed.

It is hereby declared that the reservation of the land of the petitioners

admeasuring 0.54 Hectares, in Pusad, District Yavatmal, for primary

school as per the final development plan, dated 26.07.1998 has lapsed

and the petitioners are free to develop the land, as is permissible in the

case of adjacent land, under the relevant development plan.

WP 3904/16 11 Judgment

Rule is made absolute in the aforesaid terms with no order as

to costs.

                  JUDGE                                     JUDGE
    APTE