# DR. ABRAHAM PATANI OF MUMBAI & ANR v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2022] 19 S.C.R. 1045
- **Court:** Supreme Court of India
- **Decided:** 2022-09-02
- **Case number:** Civil Appeal No.5929 of 2022
- **Bench:** Surya Kant, Abhay S. Oka
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-abraham-patani-of-mumbai-anr-v-the-state-of-maharashtra-ors-36203
- **Pages:** 49

## Headnote

Maharashtra Regional Town Planning Act, 1966 - ss. 37(1),
126- Mumbai Municipal Corporation Act, 1888 - ss. 61(m), 63,
90(1) & (3), 91, 291, 296- Land Acquisition Act, 1894 - ss. 4, 5A,
6, 11-Land Acquisition - Conflict between two statutes - Harmonious
Construction - Public Interest - Colourable exercise of powerAppellants opposed the construction of road on their land by
Respondent No. 2 (Municipal Corporation of Mumbai) proposed
in Development Plan (DP) - Respondent No. 1 issued a directive
under S. 37(1) of Act, 1966 acknowledging the need for a
connecting road but stating that it was "not feasible" to pursue
construction of an 18.30 metre road through the Appellants' land -
Respondent No. 2 renewed the proposal to have the link road
constructed through Appellants' land under Sec. 126 of the MRTP
Act and ss. 90(1) & (3) of the Mumbai Municipal Corporation Act
(MMC) - To acquire appellants' land, Office of the Chief Engineer
(Development Plan) forwarded an application to Respondent No. 1
seeking to initiate proceedings under Land Acquisition Act,1894 -
Appellants filed a Notice of Motion in the already pending Writ,
seeking to restrain Respondent No. 2 - Notice dismissed by the High
Court - Acquisition exercise under the LAA was put in motion -
Respondent No. 10 and 11 issued notifications under ss. 4 and 6 of
the LAAct directing that Appellants' land be acquired in public interest
- Appellants' interim prayer for status quo vis-à-vis the property was
rejected by the High Court - High Court through the final judgment
affirmed the need to acquire Appellants' land for construction of
the link road in public interest- High Court held that MMC Act
conferred Respondent No. 2 with the power to acquire land and
build a new road which required neither prior permission from the
State Govt., nor for the road itself to be reflected in the DP- MMC
Act and MRTP Act are distinct, and the powers granted to
Respondent No. 2 under the former would not be impliedly repealed
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by the latter merely because it was a subsequent statute- Whether
there is conflict between MMC and MRTP Act - Held: Merely because
both statutes are concerned with land acquisition, may not
necessarily result in conflict between them- Court's endeavour shall
always be to harmoniously construct such provisions so that the
legislative intent underlying both statutes can be fulfilled - There is
no direct or indirect bar on the exercise of powers under ss. 91,
291(a), and 296 of the MMC Act. - Not only does the State Govt.
first evaluate the application under S. 91, but S. 5A of LAA also
permits the landowners themselves to air their grievances -The two
statutes exist side-by-side with some degree of overlap- Procedural
rules must not be allowed to defeat the basic purpose of a statute -
In several situations, the needs of the many must outweigh that of
the few- Notion of public interest will necessarily reflect the
specificities of the situation at hand-the present case to be an
appropriate instance where public interest must have paramountcy
over private interest-The procedure contemplated under Section 91
of the MMC Act to commence proceedings under the LAA for
procuring land was substantially complied with- Respondent No. 2
validly exercised its powers under the MMC Act to direct the
acquisition of the Appellants' land.
Dismissing the appeal, the Court
HELD: 1.1 Under the MMC Act, the power to make a new
public street is derived from S. 291. For the purpose of making a
new street, S. 296 of the Act empowers the Commissioner to
acquire land, subject to fulfilment of the conditions stipulated in
Ss. 90-92. There is certain degree of overlap between these
provisions, and S. 37 of the MRTP Act as they deal with
procurement of land. The latter is relevant in the context of a DP
whereas the MMC Act regulates the manner in which the Mumbai
Municipal Corporation operates. Merely because both statutes
are concerned with

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[2022] 19 S.C.R. 1045
1045
DR. ABRAHAM PATANI OF MUMBAI & ANR.
v.
THE STATE OF MAHARASHTRA & ORS.
(Civil Appeal No.5929 of 2022)
SEPTEMBER 02, 2022
[SURYA KANT AND ABHAY S. OKA, JJ.]
Maharashtra Regional Town Planning Act, 1966 - ss. 37(1),
126- Mumbai Municipal Corporation Act, 1888 - ss. 61(m), 63,
90(1) & (3), 91, 291, 296- Land Acquisition Act, 1894 - ss. 4, 5A,
6, 11-Land Acquisition - Conflict between two statutes - Harmonious
Construction - Public Interest - Colourable exercise of powerAppellants opposed the construction of road on their land by
Respondent No. 2 (Municipal Corporation of Mumbai) proposed
in Development Plan (DP) - Respondent No. 1 issued a directive
under S. 37(1) of Act, 1966 acknowledging the need for a
connecting road but stating that it was "not feasible" to pursue
construction of an 18.30 metre road through the Appellants' land -
Respondent No. 2 renewed the proposal to have the link road
constructed through Appellants' land under Sec. 126 of the MRTP
Act and ss. 90(1) & (3) of the Mumbai Municipal Corporation Act
(MMC) - To acquire appellants' land, Office of the Chief Engineer
(Development Plan) forwarded an application to Respondent No. 1
seeking to initiate proceedings under Land Acquisition Act,1894 -
Appellants filed a Notice of Motion in the already pending Writ,
seeking to restrain Respondent No. 2 - Notice dismissed by the High
Court - Acquisition exercise under the LAA was put in motion -
Respondent No. 10 and 11 issued notifications under ss. 4 and 6 of
the LAAct directing that Appellants' land be acquired in public interest
- Appellants' interim prayer for status quo vis-à-vis the property was
rejected by the High Court - High Court through the final judgment
affirmed the need to acquire Appellants' land for construction of
the link road in public interest- High Court held that MMC Act
conferred Respondent No. 2 with the power to acquire land and
build a new road which required neither prior permission from the
State Govt., nor for the road itself to be reflected in the DP- MMC
Act and MRTP Act are distinct, and the powers granted to
Respondent No. 2 under the former would not be impliedly repealed
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by the latter merely because it was a subsequent statute- Whether
there is conflict between MMC and MRTP Act - Held: Merely because
both statutes are concerned with land acquisition, may not
necessarily result in conflict between them- Court's endeavour shall
always be to harmoniously construct such provisions so that the
legislative intent underlying both statutes can be fulfilled - There is
no direct or indirect bar on the exercise of powers under ss. 91,
291(a), and 296 of the MMC Act. - Not only does the State Govt.
first evaluate the application under S. 91, but S. 5A of LAA also
permits the landowners themselves to air their grievances -The two
statutes exist side-by-side with some degree of overlap- Procedural
rules must not be allowed to defeat the basic purpose of a statute -
In several situations, the needs of the many must outweigh that of
the few- Notion of public interest will necessarily reflect the
specificities of the situation at hand-the present case to be an
appropriate instance where public interest must have paramountcy
over private interest-The procedure contemplated under Section 91
of the MMC Act to commence proceedings under the LAA for
procuring land was substantially complied with- Respondent No. 2
validly exercised its powers under the MMC Act to direct the
acquisition of the Appellants' land.
Dismissing the appeal, the Court
HELD: 1.1 Under the MMC Act, the power to make a new
public street is derived from S. 291. For the purpose of making a
new street, S. 296 of the Act empowers the Commissioner to
acquire land, subject to fulfilment of the conditions stipulated in
Ss. 90-92. There is certain degree of overlap between these
provisions, and S. 37 of the MRTP Act as they deal with
procurement of land. The latter is relevant in the context of a DP
whereas the MMC Act regulates the manner in which the Mumbai
Municipal Corporation operates. Merely because both statutes
are concerned with land acquisition, may not necessarily result
in conflict between them. [Paras 23-24][1064-C-D, E-F]
1.2 Provisions of one statute should not be construed or
interpreted in a manner that they render redundant the provisions
in another statute. The Court's endeavour shall always be to
harmoniously construct such provisions so that the legislative
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intent underlying both statutes can be fulfilled. When the
legislature knowingly allows two statutes to operate in
the same space, it is a reasonable presumption that the legislative
design would have been for both to remain operative without any
overriding effect. The Court shall steer two statutes away from a
direct collision with each other, even if their areas of operation
are broadly similar. [Paras 26 & 29][1065-A; 1067-C]
1.3 External statutes or alternate schemes/plans under the
MRTP Act or otherwise, should not be allowed to frustrate the
DP or the overall objective of planned development under the
MRTP Act. As the DP is the primary means of achieving the
purpose of the MRTP Act, any violence done to the former would
necessarily affect the latter. Conversely, if the former is left
essentially undisturbed then it cannot be said that the spirit and
scheme of the MRTP Act has not been honoured. The
construction of the link road in the present case does not, in any
way, frustrate the DP or defeat the overall objective of the statute.
Only in instances where a requirement of the DP is being
abrogated that a conflict arises and the observations in Girnar
Traders 2011 and Manohar Joshi become relevant. [Paras 36 and
37][1069-F-G; 1070-A-C]
1.4 The court rejects the contention of the Appellants that
the only means by which the link road through their property
could have been constructed was through an amendment to the
DP under S. 37 of the MRTP Act. Respondent No. 2 had the option
to either follow the procedure under the MRTP Act, or to invoke
the parallel process provided under Ss. 91, 291(a) and 296 of the
MMC Act. [Para 43][1071-E]
2.1 The court also does not find merit in the argument that
Respondent No. 2's resort to the MMC Act constitutes a
colourable exercise of power. Once we have ascertained that the
two legislations in question, the MRTP Act and the MMC Act,
exist in separate spheres with only incidental overlap, the
possibility of a colourable exercise of power by Respondent No.
2 falls away. There is no direct or indirect bar on the exercise of
powers under S.s 91, 291(a), and 296 of the MMC Act. Merely
DR. ABRAHAM PATANI OF MUMBAI & ANR. v.
THE STATE OF MAHARASHTRA & ORS.
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[2022] 19 S.C.R.
because a right to object to a modification of a DP exists under S.
37 of the MRTP Act does not automatically give it an ascendant
position in the hierarchy that Appellants seek to create between
the MRTP Act and the MMC Act. It is up to the legislature to
determine the amount of discretion that is accorded to the relevant
authorities under each statute. [Paras 44, 45 & 47][1071-F; 1072A-B. E]
2.2 Closer reading of the MMC Act and the LAA shows
that there are adequate safeguards available and, in the facts of
the case, Appellants were given ample opportunity to object to
the proposed expropriation of their land. Mechanism for hearing
objections is provided under S.5A of the LAA. Not only does the
State Govt. first evaluate the application under S. 91, but S.5A of
LAA also permits the landowners themselves to air their
grievances. Decision by the appellants to stick to their position
in terms of the notification and award being non-est due to the
pendency of their WP at the High Court cannot entitle them to
now argue that they were treated unfairly in the proceedings under
the LAA. [Paras 48, 50, 51 & 57][1072-F-G; 1073-B, H; 1077-B]
3.1 Procedural rules must not be allowed to defeat the basic
purpose of a statute or hamper the pursuit of justice unless
violation of the procedure would itself amount to grave injustice.
Rigid adherence to the notion that the Commissioner can be the
only official to actually send an application under S. 91 may not be
warranted in all scenarios. [Paras 64 and 70][1078-F; 1081-A-B]
3.2 Consequence in both scenarios, whether the
Commissioner or some other official acts under the provision,
would be that land acquisition proceedings are commenced under
the LAA. None of the appellants' rights are abrogated by the
Chief Engineer making the application under S. 91. Legislative
intent of ss. 126 and 127 which was to balance the power of the
State of 'eminent domain'. [Paras 71 & 73][1081-C-D; 1083-F]
3.3 S.91 imposes a statutory responsibility on Respondent
No. 3, the Commissioner, to initiate the land acquisition process.
Commissioner must apply his/her mind and take a conscious
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decision in favour of the acquisition proceedings being initiated
under the LAA. Once the Commissioner is party to the Ministerial
Committee and a determination is made by the Committee that a
new public street must be laid and land must be acquired for this
purpose under S. 91 of the MMC Act read with the LAA, it is no
longer consequential which authority conveys this decision. The
conclusion that the land is required for the construction of the
road cannot be invalidated on this ground. [Para 78][1085-F-G]
3.4The court is inclined to hold and affirm that there has
been substantial compliance with S.91 to the extent that it
achieves the objective behind the provision. Undoubtedly,
Respondent No.3 would have been a participant in the
deliberations on whether to initiate the process under S. 91 for
procurement of land. The final application was made only after
gaining approval from him and the rest of the Committee. Purpose
behind the provision of ensuring that the highest-ranking officer
in the municipal corporation is privy and amenable to the
acquisition proceedings is achieved by his participation and sign
off on the action, regardless of whether he personally sends the
application. The court, therefore, holds that once the proposal
has been approved by the Commissioner, the lack of a formal
signature from him on the eventual application is not a serious
defect and cannot annul the entire process that followed. The
court is satisfied that S.91 of the MMC Act has been substantially
complied with in this case. [Paras 80, 81, 84 & 85][1086-F-G;
1087-A; 1088-E-F]
3.5 There is no indication in S. 91 of the MMC Act that the
order of the State Govt. to carry out the land acquisition is
supposed to be in a specific form. The court has no hesitation in
taking a pragmatic and practical approach to this requirement.
The fact that all the steps under the LAA were carried out is
sufficient evidence that there has been adherence to the spirit
and scheme of S.91 regarding Respondent No. 1 being involved
and sanctioning the actions of Respondent Nos. 10 & 11. There
has been substantial compliance with the provision and the
objective underlying it has been honoured. [Paras 87, 88 &
89][1089-B-C, E-F]
DR. ABRAHAM PATANI OF MUMBAI & ANR. v.
THE STATE OF MAHARASHTRA & ORS.
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
4.1 In a democratic society governed by the rule of law, the
rights of an individual carry immense importance and are the
foundational blocks on which our legal, social, and political milieu
thrives. Under no circumstances should the rights of individual
citizens be trodden upon arbitrarily and any curtailment of them
must be scrutinized with utmost care. In several situations, the
needs of the many must outweigh that of the few. Notion of public
interest will necessarily reflect the specificities of the situation
at hand. In the present case, the public interest which has been
emphasized upon by Respondents is the urgent need for the
creation of a connecting road through the Appellants' property.
The need stems from the traffic congestion caused on the route
from the Mahakali Caves to the Central MIDC. [Paras 90, 91 &
95][1089-H; 1090-A-B; 1091-E]
4.2 The court finds that Respondent No. 2 validly exercised
its powers under the MMC Act to direct the acquisition of the
Appellants' land. In court opinion, the two statutes exist side-byside with some degree of overlap. The powers under the MMC
Act remain intact even in cases where they cover a subject that
is also provided for in the MRTP Act. Procedure contemplated
under Section 91 of the MMC Act to commence proceedings
under the LAA for procuring land was substantially complied with.
Part of the provision relied upon by the Appellants is directory in
nature and requires substantial compliance rather than strict
compliance. This Court dismisses the present appeal as being
devoid of merit. [Paras 100, 101 & 103][1093-B-D, F]
Girnar Traders v. State of Maharashtra [2007] 7 SCC
555 : [2007] 9 SCR 383 - distinguished.
Girnar Traders v. State of Maharashtra & Ors. [2011]
3 SCC 1 : [2011] 3 SCR 1; Manohar Joshi v. State of
Maharashtra & Ors. [2012] 3 SCC 619; The Chief
Inspector of Mines & Ors. v. Lala Karam Chand Thapar
& Ors [1962] 1 SCR 9; Anwar Hasan Khan v. Mohd.
Shafi [2001] 8 SCC 540; Sonapur Tea Co. Ltd. v. Must.
Mazirunnessa [1962] 1 SCR 724; Olga Tellis & Ors. v.
Bombay Municipal Corporation & Ors. [1985] 3 SCC
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545 : [1985] 2 Suppl. SCR 51; C.B. Gautam v. Union
of India & Ors. [1993] 1 SCC 78 : 1992 [ 3] Suppl.
SCR 12; Sangram Singh v. Election Tribunal, Kotah &
Anr [1955] 2 SCR 1; Ghanshyam Dass v. Dominion of
India [1984] 3 SCC 46 : [1984] 3 SCR 229; Sugandhi
v. P. Rajkumar [2020] 10 SCC 706; State of U.P. &
Ors. v. Babu Ram Upadhya [1961] 2 SCR 679; Reserve
Bank of India v. Peerless General Finance and
Investment Co. Ltd. & Anr [1987] 1 SCC 424 : [1987]
2 SCR 1; S. Gopal Reddy v. State of A.P [1996] 4 SCC
596 : [1996] 3 Suppl. SCR 439; Sharif-ud-din v. Abdul
Gani Lone [1980] 1 SCC 403; Harakchand Misirimal
Solanki & Ors. v. The Collector & Ors 2008 SCC
OnLine Bom 1067; Manimegalai v. Special Tehsildar
[2018] 13 SCC 491; B.P. Sharma v. Union of India &
Ors [2003] 7 SCC 309; Bihar Public Service Commission
v. Saiyed Hussain Abbas Rizwi & Anr [2012] 13 SCC
61; Ramilila Maidan Incident v. Home Secretary, Union
of India & Ors [2012] 5 SCC 1; K.T. Plantation Pvt.
Ltd. & Ors. v. State of Karnataka [2011] 9 SCC 1 -
referred to.
Case Law Reference
[2011] 3 SCR 1
referred to
Para 17
[2007] 9 SCR 383
distinguished
Para 17
[1962] 1 SCR 9
referred to
Para 27
[1962] 1 SCR 724
referred to
Para 44
[1992] 3 Suppl. SCR 12
referred to
Para 48
[1985] 2 Suppl. SCR 51
referred to
Para 48
[1955] 2 SCR 1
referred to
Para 65
[1984] 3 SCR 229
referred to
Para 66
[1961] 2 SCR 679
referred to
Para 68
[1987] 2 SCR 1
referred to
Para 76
[1996] 3 Suppl. SCR 439
referred to
Para 77
DR. ABRAHAM PATANI OF MUMBAI & ANR. v.
THE STATE OF MAHARASHTRA & ORS.
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SUPREME COURT REPORTS
[2022] 19 S.C.R.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5929
of 2022.
From the Judgment and Order dated 30.05.2022 of the High Court
of Judicature at Bombay in Writ Petition No. 3060 of 2002.
Shyam Divan, Sr. Adv., V. Giri, Jonathan Solomon, Vikas Mehta,
Tapan Masta, Rajat Sehgal, Ms. Soniya Putta, Adith Gupta, Advs. for
the Appellants.
Girish Godbole, Shekhar Naphade, Sr. Advs., Mrs. B. Sunita Rao,
Gunmaya S. Mann, E. C. Agrawala, Ms. Aishwarya Bhati, Farah
Hashmi, Dr. Prashant Pratap, Kumar Mitakshara, Sunil Murarka, Pankaj
Agrawal, Rajesh Kumar, Siddhant Sahay, S.C. Dharmadhikari, Aniruddha
Joshi, Shashibhushan P. Adgaonkar, Omkar J. Deshpande, Advs. for the
Respondents.
The Judgment of the Court was delivered by
SURYA KANT, J,
1. Leave Granted.
2. This appeal arises from the judgment dated 30.05.2022 passed
by the Bombay High Court dismissing the Appellants' Writ Petition in
which they had sought to quash a series of resolutions passed by
Respondent No. 2, as well as notifications and a final award of
compensation under the Land Acquisition Act, 1894 ("LAA") issued by
Respondent Nos. 10 & 11, which cumulatively resulted in acquisition of
parts of the Appellants' property for construction of a new road.
A. FACTS
3. The genesis and course of the present dispute spans several
decades and includes one prior round of litigation before this Court. The
crux of the matter arises from the opposition by Appellants to the
construction of a road through their property by Respondent No. 2, the
Municipal Corporation of Mumbai. The property in question was acquired
by the Appellants in 1959, and a building known as the "INGA Building"
was constructed on it in 1965.
4. The possibility of having a road through the Appellants' land
was floated initially in a Development Plan ("DP") of 1976. After this,
the road was realigned in 1984 in order to secure smooth passage through
Appellants' land. Appellants raised objections in this regard in 1992 and
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the planned road was deleted from the DP via notification dated
12.11.1992 issued by Respondent No. 1.
5. During this period, various complaints were allegedly received
from residents in surrounding areas regarding the need for a road in
order to connect the Mahakali Caves with the Central Industrial District.
Respondent No. 1 issued a directive under Section 37(1) of the
Maharashtra Regional Town Planning Act, 1966 ("MRTP Act") on
07.06.1993, acknowledging the need for a connecting road but stating
that it was "not feasible" to pursue construction of an 18.30 metre road
through the Appellants' land. Thus, Respondent No. 2 was instructed to
analyse the legal and technical aspects of the project before submitting
a proposal for setting up the road with minor modifications in the DP
under Section 37 of the MRTP Act.
6. Meanwhile, Appellants completed construction of a bungalow
on their land in 1994. However, subsequent sanctions sought by the
Appellants for further buildings were rejected by the Municipal
Corporation on the ground that a proposal for creation of a link road
through the property was under consideration.
7. Respondent No. 2 eventually passed Resolution No. 651 on
10.09.1996 that renewed the proposal to have the link road constructed
through Appellants' land. Two further resolutions were then passed: a)
Resolution No. 39 dated 18.08.1998 by the Improvement Committee
affirming the proposal for the link road; b) Resolution No. 536 on
08.12.1998 by Respondent No. 2 under Sec. 126 of the MRTP Act and
Secs. 90(1) & (3) of the Mumbai Municipal Corporation Act ("MMC
Act") for the acquisition of land in order to build the new road line.
8. The Office of the Chief Engineer (Development Plan) forwarded
an application to Respondent No. 1 on 05.02.1999 seeking to initiate
proceedings under the LAA. Appellants filed protestations before the
state authorities claiming that the dimensions and route for the link road
would touch the buildings that had been constructed by them. Given
these continuing disputes, Respondent No. 2 eventually passed Resolution
No. 1167 on 09.03.2001 which noted that there were three other road
lines that connected the Mahakali Caves with the Central MIDC.
Consequently, it was concluded that an additional road through Appellants'
property was redundant.
DR. ABRAHAM PATANI OF MUMBAI & ANR. v.
THE STATE OF MAHARASHTRA & ORS. [SURYA KANT, J,]
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[2022] 19 S.C.R.
9. Private Respondents, Nos. 6-9, challenged this decision before
the HC in WP No. 1072 of 2001. While this was pending, Respondent
No. 2 proposed to reconsider Resolution No. 1167. Appellants filed a
Notice of Motion in the already pending WP, seeking to restrain
Respondent No. 2 from once again tabling the motion to have a link road
through their land. This Notice was dismissed by the High Court on
18.10.2002 with liberty granted to Respondent No. 2 to reconsider the
decision made on 09.03.2001 but with a caveat that any fresh resolution
passed thereafter would only be given effect to after obtaining leave
from the Court.
10. Respondent No. 2 proceeded to pass Resolution No. 1117 on
28.10.2002 which withdrew Resolution No. 1167, and partially modified
the earlier resolution passed on 08.12.1998. The net result of this was
that the acquisition of Appellants' land was sanctioned for building an
18.30 metre new road line. Appellants moved Writ Petition No. 3060 of
2002 challenging the renewal of the plan to construct the link road and
seeking to quash three Resolutions: a) No. 651 on 10.09.1996; b) No.
536 on 08.12.1998; c) No. 1117 on 28.10.2002.
11. Meanwhile, the High Court disposed of WP No. 1072 of 2001
with the observation that after the passage of Resolution No. 1117, the
WP in question had become infructuous and the validity and legality of
the Resolution would be decided by the High Court in the proceedings
initiated by Appellants.
12. During pendency of the Appellants' WP, and pursuant to the
application of 05.02.1999, the acquisition exercise under the LAA was
put in motion. Respondent No. 10 and 11 issued notifications under
Sections 4 and 6 of the LAA directing that Appellants' land be acquired
in public interest. The award of compensation under Section 11 was
declared on 26.11.2007. Appellants consequently incorporated a challenge
to the notification under Sec. 6 and the award of compensation, into
their prayer in the pending Writ Petition.
13. Appellants' interim prayer for status quo vis-à-vis the property
was rejected by the High Court and, being aggrieved by this denial, they
instituted SLP (Civil) No. 22849 of 2008 in which the Supreme Court
ordered that status quo be maintained as on 22.09.2008. The SLP
remained pending for over a decade until it was disposed of vide order
dated 05.12.2019 with a request to the High Court to finally decide the
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matter. The order of status quo was extended till the final judgment by
the High Court.
14. Before the High Court, the Appellants assailed the entire land
acquisition process on broadly three grounds: a) The MRTP Act formed
a complete code for the purpose of town planning and development, and
hence, Respondent No. 2 could not resort to the provisions of the MMC
Act to circumvent a DP that is approved under the MRTP Act. Instead,
it was mandatory to seek permission from Respondent No. 1 for
effectuating minor modifications in the DP under Section 37 of the MRTP
Act; b) In arguendo, the procedure under the MMC Act for land
acquisition had not been followed. Section 91 of the MMC Act required
Respondent No. 3 to initiate the process of acquiring land under Section
296 for laying down a new road under Section 291. However, in this
case, the Office of the Chief Engineer had been the authority which
took the first step which was an incurable defect. Additionally, no
authorization had been granted by Respondent No. 1, as required under
Section 91 of the MMC Act; c) Appellants had not been given sufficient
opportunity to voice their grievances in respect of Respondent No. 2's
plan to build the link road through their land.
15. The Appellants' Writ Petition was eventually dismissed vide
the impugned judgment whereby the High Court declined to quash the
various resolutions passed by Respondent No. 2, and the notification
and award of compensation under the LAA. Thus, the High Court
affirmed the need to acquire Appellants' land for construction of the link
road in public interest.
16. The Division Bench held: -
i)
The acquisition of Appellants' land and decision to lay a
new road through it was taken pursuant to Sections 91,
291(a) and 296, of the MMC Act. The MMC Act conferred
Respondent No. 2 with the power to acquire land and build
a new road which required neither prior permission from
the State Govt., nor for the road itself to be reflected in the
DP;
ii)
The MMC Act and MRTP Act are distinct, and the powers
granted to Respondent No. 2 under the former would not
be impliedly repealed by the latter merely because it was a
subsequent statute. Rather, they would exist side-by-side
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and supplement each other in the areas where there was
an overlap of powers. Thus, Respondent No. 2 had the
option of either going through the MRTP Act or the MMC
Act and it had used its discretion to exercise the latter option;
iii)
While it was true that the link road was not included in the
DP after its deletion in 1992, this did not prevent Respondent
No. 2 from acting under the MMC Act. The MRTP Act
dealt with crafting of development plans at the macro level,
while Respondent No. 2 was at liberty to exercise its powers
under the MMC Act to iron out minute details and carry
out work that would be in furtherance of such a plan, such
as the construction of a link road;
iv)
Sec. 37 of the MRTP Act which laid out a rigorous process
for making minor adjustments to a DP would not be relevant,
as Respondent No. 2 had acted under the MMC Act and
not the MRTP Act to facilitate the acquisition of land and
setting up of the road;
v)
The requirements under Section 91 of the MMC Act had
been complied with. Even though the Office of the Chief
Engineer rather than Respondent No. 3 had forwarded the
letter to Respondent No. 10 seeking to initiate the land
acquisition proceedings, this was only a minor defect that
would not invalidate the process;
vi)
Respondent No. 1 had acceded to the steps taken by
Respondent Nos. 2 & 3 to acquire the Appellants' land by
initiating the land acquisition proceedings under the LAA
through Respondent Nos. 10 & 11, which showed that it
was in agreement with the need for obtaining the property
for the link road;
vii)
There was a clear and urgent need for building the road to
alleviate traffic congestion in the area caused by the lack
of a connector from the Mahakali Caves to the Central
MIDC. Thus, public interest would have to trump the private
interests of Appellants.
It is in this context that Appellants have approached this Court for
the second time.
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B. SUBMISSIONS
17. Mr. Shyam Divan & Mr. V. Giri, learned Senior Counsels for
the Appellants, have raised the following contentions while assailing the
impugned judgment: -
i)
The DP under the MRTP Act holds a position of primacy.
It is not possible for Respondent No. 2 to act on its own
initiative in proposing construction of a road when the road
itself is not reflected in the DP. Respondent No. 1 had already
made its opinion on the matter clear by deleting the road
from the overall DP through a notification on 12.11.1992,
and had then suggested that Respondent No. 2 re-examine
the issue in its Directive under Section 37 of the MRTP
Act, dated 07.06.1993;
ii)
Section 31 of the MRTP Act provides the entire process by
which a DP is finalized and sanctioned. The overall scheme
under Section 31 envisages a consultative process with the
general public whereby objections and suggestions are invited
and considered. Respondent No. 2 has taken away the right
accorded under Section 31 to object to aspects of the plan by
circumventing it by way of a resolution under the MMC Act;
iii)
The High Court's ruling permits a subordinate authority, the
Municipal Corporation, to subvert the State Government's DP.
This would cause violence to the mandate of the MRTP Act;
iv)
Given the hierarchy established between the MRTP Act
and the MMC Act, Respondent No. 2's usage of provisions
of the latter to do what cannot be done under the former, is
merely a colourable exercise of power;
v)
The MRTP Act is a complete code that provides for every
aspect of formulating, modifying, and finalizing a DP. Any
actions taken under either the MCC Act or the LAA, to
acquire land and use it for any purpose that is not expressly
sanctioned in the DP, are illegal. Reliance is placed on
Girnar Traders v. State of Maharashtra & Ors. ("Girnar
Traders 2011")1 and Manohar Joshi v. State of
Maharashtra & Ors.2
1 (2011) 3 SCC 1.
2 (2012) 3 SCC 619.
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vi)
Permitting a Municipal Corporation to act outside of a DP
will create a chaotic situation and facilitate unbridled usage
of the powers under the relevant municipal corporation
statute. Such discretion cannot be accorded to a municipal
corporation to act outside the contours of the relevant DP;
vii)
Even under the MMC Act, the requirement of Respondent
No. 3 initiating the process under Section 91 has not been
fulfilled. The minimum safeguard provided under Section
91 is for the municipal commissioner himself/herself to at
least apply his/her mind to the proposal and then make an
application to the State Govt. under Section 91. These are
not minor defects but basic protections under the MMC
Act and must be construed strictly. The judgment in Girnar
Traders v. State of Maharashtra ("Girnar Traders
2007")3 is cited in this regard;
viii)
Notwithstanding the aforementioned defect, Section 91 of
the MMC Act requires the State Govt., upon receipt of an
application for the acquisition of land, to authorize the
initiation of proceedings under the LAA. No such
authorization has been granted in this case and the DP does
not provide for the road in any case.
ix)
Resolution No. 1167 had explicitly noted that the proposed
road seemed to be for the benefit of private individuals,
Respondent Nos. 4-9, and was not for any discernible public
interest.
18. Arguing in support of the impugned judgment, learned Counsel
Mr. Girish Godbole, appearing for Respondent Nos. 2 & 3, learned Senior
Counsel, Mr. Shekhar Naphade, appearing for Respondent Nos. 6-9,
alongside learned Counsel Mr. S.C. Dharmadhikari, appearing for
Respondent Nos. 4 & 5, have placed the following submissions:
i)
Sanction for construction of the link road was obtained via
three resolutions: i) No. 651 on 10.09.1996; ii) Resolution
No. 39 by the Improvement Committee on 18.08.1998; iii)
Resolution No. 536 of 08.12.1998 which was a composite
resolution under Section 126 of the MRTP Act, and Section
3 (2007) 7 SCC 555.
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90(1) & (3) of the MMC Act. Mr. Godbole clarifies that
the third resolution was, in effect, under Section 91 of the
MMC Act and the mention of Section 90 is merely a
typographical error;
ii)
In terms of authorization required from Respondent No. 1
for carrying out the acquisition process, Sections 4 & 6 of
the LAA provide that the State Govt. is the party that initiates
the process of issuing a notification and then declaring that
a parcel of land is needed for a public purpose. Hence, the
steps taken subsequently under the LAA demonstrate that
the State Govt. was ad idem with the municipal corporation
on the need to procure Appellants' land;
iii)
Section 91 of the MMC has been complied with. The fact
that the Office of the Chief Engineer forwarded the
application to the State Govt. is inconsequential as the action
is a formality. The Commissioner was part of the Ministerial
Committee where the decision regarding Appellants' land
was taken and the application was only made after accruing
the approval of the committee, including the Commissioner;
iv)
The MMC Act and MRTP Act operate in completely
different fields and co-exist simultaneously. If the State
legislature intended to erode the powers under the MMC
Act, it would have included provisions to that effect.
v)
Resort to Sections 91, 291(a) and 296 of the MMC Act as
the mode of acquisition was ideal for Appellants as they
would receive compensation via the statutory mechanism
under the LAA. Moreover, the plan for the road, as proposed
by Respondent No. 2, does not impact the buildings
constructed on the land. Hence, no substantial prejudice is
caused to Appellants;
vi)
The directive dated 07.06.1993 cannot be classified as
coming under Section 37 of the MRTP Act. The State Govt.
merely suggested that Respondent No. 2 reconsider the
technical and legal aspects of the proposed link road after
which no further steps were taken. There was no express
modification directed to be made, and this was merely part
of the process of revisions and consideration of the DP.
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vii)
Appellants' conduct and the manner in which they had the
buildings on the land constructed in defiance of an
undertaking that was given to the state authorities, disentitles
them to any relief on equitable grounds. Further, their
repeated representations directly to the State authorities
and attempts to manipulate the road construction show mala
fide intent;
viii)
The link road is in public interest, and such a consideration
must override private interest.
19. Learned senior counsel, Mr. Divan, countered Respondents'
submissions in his rejoinder by raising the following points:
i)
The Resolution of 08.12.1998 was under Section 90 of the
MMC Act which is for acquisition by consent. There was
neither consent for acquisition nor any separate resolution
under Section 91 of the MMC Act that was passed by
Respondents. Even if the submission by Mr. Godbole that
this was essentially a resolution under Section 91 is to be
accepted, the subsequent Resolution No. 1167 of 09.03.2001,
and letter dated 14.03.2001 by Respondent No. 2, expressly
noted there was no need for a road to be built through
Appellants' property. Hence, this nullified any purported
decision that may have been taken under Section 91 in the
resolution dated 08.12.1998.
ii)
The argument regarding disentitlement to relief on equitable
grounds is unfounded, since it is the municipal corporation
that has repeatedly changed its stance on the need for the
link road;
iii)
The affidavit submitted by Vyaravali Village Development
Assn. before the High Court in the WP filed by Respondent
Nos. 6-9, shows that there was a clear application of mind
to the issue of constructing the link road. Resolution No.
1167 was the product of these deliberations. Thus, no claim
of manipulation and mala fides can be raised against
Appellants.
iv)
Having devoted our earnest attention to the submissions
advanced by both sides, and after perusing the record, we
now proceed to consider the issues that have been raised.
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C. ANALYSIS
C.1. Interplay between the MRTP Act and the MMC Act
20. The primary issue that emerges from the arguments raised by
the parties is with regard to the interaction between the MRTP Act and
the MMC Act. Specifically, the Appellants posit that the procedure under
Section 37 of the MRTP Act for amendment of a DP is the sole method
by which construction that is not provided for within the DP can
subsequently be authorized.
21. Section 37 of the MRTP Act (relevant part) sets out the
following process:
37. Modification of final Development plan
(1) Where a modification of any part of or any proposal made
in, a final Development plan * * *, the Planning Authority
may, or when so directed by the State Government [shall,
within ninety days from the date of such direction, publish a
notice] in the Official Gazette [and in such other manner as
may be determined by it] inviting objections and suggestions
from any person with respect to the proposed modification
not later than one month from the date of such notice ; and
shall also serve notice on all persons affected by the proposed
modification and after giving a hearing to any such persons,
submit the proposed modification (with amendments, if any,)
[to the State Government for sanction within one year from
the date of publication of notice in the Official Gazette. If
such modification proposal is not submitted within the period
stipulated above, the proposal of modification shall be deemed
to have lapsed:
Provided that, such lapsing shall not bar the Planning
Authority from making a fresh proposal.]
[(1A) If the Planning Authority fails to issue the notice as
directed by the State Government, the State Government shall
issue the notice, and thereupon the provisions of sub-section
(1) shall apply as they apply in relation to a notice to be
published by a Planning Authority.]
[(1AA)(a) Notwithstanding anything contained in sub-sections
(1), (1A) and (2), where the State Government is satisfied
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that in the public interest it is necessary to carry out urgently
a modification of any part of, or any proposal made in, a
final Development plan of such a nature that it will not change
the character of such Development plan, the State Government
may, on its own, publish a notice in the Official Gazette, and
in such other manner as may be determined by it, inviting
objections and suggestions from any person with respect to
the proposed modification not later than one month from the
date of such notice and shall also serve notice on all persons
affected by the proposed modification and the Planning
Authority.
(b) The State Government shall, after the specified period,
forward a copy of all such objections and suggestions to the
Planning Authority for its say to the Government within a
period of one month from the receipt of the copies of such
objections and suggestions from the Government.
(c) The State Government shall, after giving hearing to the
affected persons and the Planning Authority and after making
such inquiry as it may consider necessary and consulting the
Director of Town Planning, by notification in the Official
Gazette, publish the approved modifications with or without
changes, and subject to such conditions as it may deem fit, or
may decide not to carry out such modification. On the
publication of the modification in the Official Gazette, the
final Development plan shall be deemed to have been modified
accordingly.]
22. As opposed to this, Respondents have attempted to make a
case that the power vested in the municipal corporation under Sections
91, 291(a), and 296 of the MMC Act, are unaffected by Section 37 of
the MRTP Act. The interpretation of the three provisions comprise the
crux of the present case and they are reproduced below (relevant part):
91. Procedure when immoveable property cannot be acquired
by agreement.
(1) Whenever the Commissioner is unable to acquire any
immovable property under the last preceding section by
agreement [the [State] Government] may, in their discretion,
upon the application of the Commissioner, made with the
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approval of [the Improvements Committee] [and subject to
the other provisions of this Act] order proceedings to be taken
for acquiring the same on behalf of the corporation, as if
such property were a land needed for a public purpose within
the meaning of the Land Acquisition Act, 1870.*
(2) The amount of compensation awarded and all other
charges incurred in the acquisition of any such property shall,
subject to all other provisions of this Act, be forthwith paid by
the Commissioner and thereupon the said property shall vest
in the corporation.
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291.