Bombay High Court
Shri Prakash Ramchandra Rathi And ... vs The State Of Maharashtra, Thr. Its ... on 9 December, 2021
Bench: V. G. Joshi
Judgment 1 WP916.19+.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 916/2019
AND
WRIT PETITION NO. 2093/2020
WRIT PETITION NO. 916/2019
1] Shri Prakash S/o Ramchandra Rathi,
Aged about 52 years, Occ. Business,
R/o. Balaji Plot, Khamgaon,
Tehsil Khamgaon, Dist. Buldhana
2] Shri Anil S/o Puranmal Khandelwal,
Aged about 51 years, Occ. Business,
R/o. Balaji Plot, Khamgaon,
Tehsil : Khamgaon, Dist. Buldhana
3] Shri Amit S/o Kamalkishor Sharma,
Aged about 41 years, Occ. Business,
R/o. Nataraj Garden Road,
Khamgaon, Tehsil : Khamgaon,
Dist. Buldhana
.... PETITIONER(S)
// VERSUS //
1] The State of Maharashtra,
Through its Secretary, Urban
Development Department,
Mantralaya, Mumbai 400032
2] The Director of Town Planning,
Maharashtra State, Pune,
Office at Central Block,
Opposite Sasoon Hospital
Pune 411001
3] The Assistant Director of Town Planning,
Buldhana, C/o Town Planning and Valuation
Department, Administrative Department,
Buldhana 443001
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4] The Khamgaon Municipal Council,
Through its Chief Officer,
Office At Municipal Council Khamgaon,
Dist. Buldhana
5] Shri Shashimohan S/o Shyamsunder Tapadia,
Aged about Major, Occ. Business,
6] Shri Anilkumar S/o Shashimohan Tapadia,
Aged about : Major, Occ. Business,
7] Shri Ajaykumar S/o Shashimohan Tapadia,
Aged about Major, Occ. Business
All respondent nos. 5 to 7 are R/o. Madhukrushna
Hotel Rajecha Mage, Gourakshan Road, Akola,
Taluka and District Akola
.... RESPONDENTS
AND
WRIT PETITION NO. 2093/2020
1] Shri Prakash S/o Ramchandra Rathi,
Aged about 52 years, Occ. Business,
R/o. Balaji Plot, Khamgaon,
Tehsil Khamgaon, Dist. Buldhana
2] Shri Anil S/o Puranmal Khandelwal,
Aged about 51 years, Occ. Business,
R/o. Balaji Plot, Khamgaon,
Tehsil : Khamgaon, Dist. Buldhana
3] Shri Amit S/o Kamalkishor Sharma,
Aged about 41 years, Occ. Business,
R/o. Nataraj Garden Road,
Khamgaon, Tehsil : Khamgaon,
Dist. Buldhana .... PETITIONER(S)
// VERSUS //
1] The State of Maharashtra,
Through its Secretary, Urban
Development Department,
Mantralaya, Mumbai 400032
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2] The Director of Town Planning,
Maharashtra State, Pune,
Office at Central Block,
Opposite Sasoon Hospital
Pune 411001
3] The Assistant Director of Town Planning,
Buldhana, C/o Town Planning and Valuation
Department, Administrative Department,
Buldhana 443001
4] The Khamgaon Municipal Council,
Through its Chief Officer,
Office At Municipal Council Khamgaon,
Dist. Buldhana
.... RESPONDENT(S)
**************************************************************
Shri C.R. Sharma, Advocate for the petitioner(s)
Ms. T.H. Khan, AGP for the respondent/State
Shri D.M. Kale, Advocate for the respondent no. 4
**************************************************************
CORAM : DIPANKAR DATTA CJ. &
VINAY JOSHI, J.
DATE : DECEMBER 09, 2021
ORAL JUDGMENT : (PER:- DIPANKAR DATTA, CJ.)
1] This writ petition is directed against a communication
dated December 24, 2018 issued by the Town Planning Authority and
Chief Officer, Municipal Council, Khamgaon (hereafter "the Chief
Officer"). The said communication, issued in response to a purchase
notice dated February 9, 2018 issued by the petitioners refers to
objections raised by Shri Shashimohan Shyamsunder Tapadia & two
others (hereafter "the private respondents") and conveys to them that
since there is a dispute regarding ownership and boundaries of the plot
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in question, the purchase notice cannot be entertained. Copy of the
objection of the private respondents was enclosed with the
communication.
2] It is not in dispute that the revised Development Plan of
Khamgaon city was published in the Official Gazette on September 30,
1993 and came into force from November 1, 1993 as per the provisions
of the Maharashtra Regional Town Planning Act, 1966 (hereafter "the
MRTP Act"). In terms of such development plan, Survey No. 123,
Khamgaon has been reserved for a children's park. The petitioners
claim to be the owners of a piece and parcel of land measuring .35 R
out of Survey No. 123 (hereafter "the said land"). Such ownership is
claimed by reason of purchase of the said land from the erstwhile
owners. It also their claim that the relevant entry in the 7/12 extract is
proof of the petitioners' ownership in respect of the said land. Since
the reservation was not given effect to despite lapse of more than 10
years, the petitioners by their notice dated February 9, 2018 called
upon the Municipal Council to purchase the said land or to acquire the
same. It was in pursuance of such a notice that the impugned
communication came to be made.
3] Our attention has been drawn by Mr. Sharma, learned
advocate for the petitioner to a decision of the Division Bench of this
Court reported in 2018 (4) Mh. L.J. 454 : Abdul Gani N. Wadwan
vs. State of Maharashtra and others to support the contention that
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section 127 of the MRTP Act does not require the sender of the notice
to produce documents of title but documents showing title would be
sufficient and that entries in the 7/12 extract would constitute
sufficient material to come to the conclusion that such notice sender is
the person interested in the land, even if he is not the owner thereof.
On the basis of the aforesaid decision, it is contended by
Mr. Sharma that the relevant entry in the 7/12 extract in respect of the
said land would have been sufficient to demonstrate the interest of the
petitioners therein and, if only the Chief Officer had granted an
opportunity of hearing to them, the petitioners could have persuaded
him to entertain the purchase notice upon overruling the objection of
the private respondents.
4] Mr. Kale, learned advocate for the respondent
no. 4/Municipal Council has, while resisting the writ petition, referred
to the objection of the private respondents at page 84 of the writ
petition as well as an order dated February 16, 2018 passed by a co-
ordinate Bench of this Court in Writ Petition No. 3533/2017.
According to him, such writ petition was at the instance of the private
respondents and the Court had allowed the same declaring that
reservation of land of the petitioners [private respondents herein] in
Survey No. 123 ad-measuring 1 Hectare 80 R, Mouza Khamgaon, for
primary school, garden and playground stands lapsed in view of the
provisions of section 127(1) of the MRTP Act and also that the said
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petitioners would be free to develop such land as per law. The
contention, therefore, is that the Municipal Council in refusing to
entertain the notice served by the petitioners, did not commit any
illegality for which interference of this Court would be warranted.
5] We have heard the parties and perused the materials on
record. It is recorded that the private respondents despite being served
have not appeared before us today.
6] It is evident from the order dated February 16, 2018
passed in Writ Petition No. 3533/2017 that the petitioners therein had
served purchase notice dated June 18, 2004 on the respondents on
June 21, 2004 in respect of land ad-measuring 1 Hectare 80 R,
whereas the petitioners have claimed ownership by virtue of a
purchase deed dated October 15, 2013 of the said land ad-
measuring .35 R; however, both lands are bearing the same Survey No.
123. It could be so that the said land over which the petitioners claim
ownership and/or interest may not be the same which the private
respondents own or might have interest. We could have obtained a
clarification from the private respondents had they appeared and filed
a reply affidavit. Because of their absence, recourse thereto is also not
an available option. In our opinion, in such peculiar facts and
circumstances, it would have been desirable if the Chief Officer of the
Municipal Council prior to issuing the impugned communication
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dated December 24, 2018 had attempted to verify whether the private
respondents were claiming interest in respect of the said land for
which the purchase notice was issued. This could have been achieved if
the petitioners and the private respondents were called for a hearing
and the rival claims in respect of the said land measuring .35 R verified
and an appropriate decision given for the purpose of entertaining the
purchase notice. Although section 127 does not in terms provide for
any opportunity of hearing to be given either to the sender of the
purchase notice or the objector, it does not at the same time exclude
natural justice either expressly or by implication. Law seems to be
well-settled that even if a statute is silent and there are no positive
words in the relevant legislation, there could be nothing wrong in
spelling out the need to hear the parties whose rights and interest are
likely to be affected by the orders that may be passed thereunder, and
making it a requirement to follow a fair procedure before taking a
decision, unless the statute provides otherwise. The principles of
natural justice must be read into unoccupied interstices of the statute,
unless there is a clear mandate to the contrary, and no form or
procedure should ever be permitted to exclude the presentation of a
litigant's defence or stand. We are inclined to hold on the basis thereof
that since the communication dated December 24, 2018 has the effect
of prejudicing the rights and interest of the petitioners, adhering to
natural justice by granting an opportunity of hearing to contradict the
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objection of the private respondents becomes presumptive and would
have been in consonance with a fair procedure.
7] We are also inclined to the view that an opportunity of the
nature indicated above would largely enable the sender of a purchase
notice to dispel any doubt that an officer might have or contradict any
prima facie conclusion reached by him on receiving an objection
which, though apparently attractive for a purchase notice not to be
entertained, could lack in substance. The aim of natural justice being
to secure justice as well as to prevent its miscarriage, the cause of
justice would be sufficiently served if such an opportunity is given (not
in all cases but depending upon the facts of each case).
8] For the view that we have taken above but without
expressing any opinion of the merits of the rival claims raised by the
petitioners as well as the private respondents, we set aside the
communication dated December 24, 2018 and require the Chief
Officer of the Municipal Council to arrange a hearing of the private
parties to verify whether there is any worth in the objection raised by
the private respondents. Documents placed before him shall be given
due consideration. Thereupon, the Chief Officer shall proceed to pass
an appropriate order in accordance with law. Let this exercise be
completed as early as possible but not later than 3 months from the
date of receipt of a copy of this order. We make it clear that if the
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petitioners' prayer is granted, the period of 24 months referred to in
sub-section (1) of Section 127 of the 1966 Act shall be reckoned from
the date the decision is given by the Chief Officer.
9] Writ Petition No. 916/2020 stands disposed of, without
costs. All contentions are left open.
10] In view of the aforesaid order, nothing survives for
decision in Writ Petition No. 2093/2020. The same too stands
disposed of accordingly.
11] Pending application(s), if any, also stand(s) disposed of.
(VINAY JOSHI, J.) (CHIEF JUSTICE)
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