# MIS. GIRNAR TRADERS v. ST ATE OF MAHARASHTRA AND ORS

- **Citation:** [2007] 9 S.C.R. 383
- **Court:** Supreme Court of India
- **Decided:** 2007-08-27
- **Case number:** Writ Petition No. 822 of 2000
- **Bench:** B.N. Agra Wal, P.K. Balasubramany An, P.P. Naolekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mis-girnar-traders-v-st-ate-of-maharashtra-and-ors-23264
- **Pages:** 63

## Headnote

Land Acquisition Act, 1894/Maharashtra Regional and Town Planning
Act, 1966:
Section I IA/Sections 126, 127
A
B
c
Interpretation and applicability of newly inserted S.11 A of the Land
Acquisition Act to the MRTP Act-Referred to larger Bench-There is no
application under clause (s) of S.126(/) moved by the officer authorized by D
the Municipal Corporation i.e. the Municipal Commissioner to the State
Government for acquisition of the land-Thus, it cannot be said that steps
as contemplated were taken for the commencement of acquisition
proceedings-Hence, appellants are entitled to deemed dereservation and
permitted to utilize the land as permissible under S.127 of the MRTP Act- E
Constitution of India, 1950, Article 246.
Interpretation of Statutes-When language of the Legislature admits of
two constructions, Court should not adopt the construction which would
lead to absurdity or obvious injustice-The construction which would be F
consistent with the smooth working of the system which the statute proposed
to be regulating should be chosen-The alternative is to be rejected which
will introduce uncertainly, friction or confusion with the working of the
system.
Words and Phrases:
'Steps'-Meaning of in the context of S.127 of Maharshtra Regional
and Town Planning Act, 1966.
383
G
H
A
384
SUPREME COURT REPORTS
[2007] 9 S.C.R.
C.A.No.3922 of 2007 has been filed against the dismissal of Writ
Petition by the Bombay High Court holding that Section llA of the Land
Acquisition Act as amended is not applicable to the proceedings for acquisition
initiated under the Maharashtra Regional and Town Planning Act, relying
on State of Maharashtra & Anr. v. Sant Joginder Singh Kishan Singh and
B Ors., (1995] Supp. 2 sec 475.
c
Civil Appeal No. 3703 of 2003 has been referred to the present 3 Judge
Bench after a 2 Judge Bench of this Court doubted the correctness of the
decisio~ rendered in Sant Joginder Singh 's case.
On behalf of Municipal Corporation of Greater Mumbai, it was contended
that the Chief Engineer (Development Plan) sent a letter to the State of
Maharashtra enclosing therewith a copy of Resolution No. 956 dated
16.9.2002, requesting that steps be taken for acquisition of the land and this
step taken by the respondents would constitute 'steps' for the acquisition of
D the land under clause (c) of Section 126(1) of the MRTP Act, the same having
been taken on 17.9.2002 when the period of six months had not expired, the
provision of de-reservation under Section 127 would not apply.
On behalf of the appellants, it was contended that the intent and purpose
E of Section 127 of the MRTP Act is the acquisition of land within six months
or the steps are taken for acquisition of the land within six months, which
could only be when a declaration under Section 6 of the LA Act is published
in the Official Gazette; that the words "if within six months from the date of
the service of such notice, the land is not acquired or no steps as aforesaid
F are commenced for its acquisition" are not susceptible of a literal construction
and the words have to be given a meaning which safeguards a citizen against
arbitrary and irrational executive action which, in fact, may not result in
acquisition of the land for a long period to come; and that it cannot be doubted
that the period of 10 years is a long period where the land of the owner is
G kept in reservation. Section 127 gives an opportunity to the owner for dereservation of the land if no steps are taken for acquisition by the authorities
with in a period of six months inspite of service of notice for de-reservation
after the period of 10 years has expired.
H
It was also contended for the appellants that the decision in Municipal
-{
GIRNARTRADERSv. STATE
385
Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association and .,A
Ors., (1988) Supp. SCC 55 squarely covers the proposition of law wherein it
has been held that the development or the planning authority must take
recourse to acquisition with so

## Text

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MIS. GIRNAR TRADERS
v.
ST ATE OF MAHARASHTRA AND ORS.
AUGUST 27, 2007
[B.N. AGRA WAL, P.K. BALASUBRAMANY AN AND
P.P. NAOLEKAR, JJ.)
Land Acquisition Act, 1894/Maharashtra Regional and Town Planning
Act, 1966:
Section I IA/Sections 126, 127
A
B
c
Interpretation and applicability of newly inserted S.11 A of the Land
Acquisition Act to the MRTP Act-Referred to larger Bench-There is no
application under clause (s) of S.126(/) moved by the officer authorized by D
the Municipal Corporation i.e. the Municipal Commissioner to the State
Government for acquisition of the land-Thus, it cannot be said that steps
as contemplated were taken for the commencement of acquisition
proceedings-Hence, appellants are entitled to deemed dereservation and
permitted to utilize the land as permissible under S.127 of the MRTP Act- E
Constitution of India, 1950, Article 246.
Interpretation of Statutes-When language of the Legislature admits of
two constructions, Court should not adopt the construction which would
lead to absurdity or obvious injustice-The construction which would be F
consistent with the smooth working of the system which the statute proposed
to be regulating should be chosen-The alternative is to be rejected which
will introduce uncertainly, friction or confusion with the working of the
system.
Words and Phrases:
'Steps'-Meaning of in the context of S.127 of Maharshtra Regional
and Town Planning Act, 1966.
383
G
H
A
384
SUPREME COURT REPORTS
[2007] 9 S.C.R.
C.A.No.3922 of 2007 has been filed against the dismissal of Writ
Petition by the Bombay High Court holding that Section llA of the Land
Acquisition Act as amended is not applicable to the proceedings for acquisition
initiated under the Maharashtra Regional and Town Planning Act, relying
on State of Maharashtra & Anr. v. Sant Joginder Singh Kishan Singh and
B Ors., (1995] Supp. 2 sec 475.
c
Civil Appeal No. 3703 of 2003 has been referred to the present 3 Judge
Bench after a 2 Judge Bench of this Court doubted the correctness of the
decisio~ rendered in Sant Joginder Singh 's case.
On behalf of Municipal Corporation of Greater Mumbai, it was contended
that the Chief Engineer (Development Plan) sent a letter to the State of
Maharashtra enclosing therewith a copy of Resolution No. 956 dated
16.9.2002, requesting that steps be taken for acquisition of the land and this
step taken by the respondents would constitute 'steps' for the acquisition of
D the land under clause (c) of Section 126(1) of the MRTP Act, the same having
been taken on 17.9.2002 when the period of six months had not expired, the
provision of de-reservation under Section 127 would not apply.
On behalf of the appellants, it was contended that the intent and purpose
E of Section 127 of the MRTP Act is the acquisition of land within six months
or the steps are taken for acquisition of the land within six months, which
could only be when a declaration under Section 6 of the LA Act is published
in the Official Gazette; that the words "if within six months from the date of
the service of such notice, the land is not acquired or no steps as aforesaid
F are commenced for its acquisition" are not susceptible of a literal construction
and the words have to be given a meaning which safeguards a citizen against
arbitrary and irrational executive action which, in fact, may not result in
acquisition of the land for a long period to come; and that it cannot be doubted
that the period of 10 years is a long period where the land of the owner is
G kept in reservation. Section 127 gives an opportunity to the owner for dereservation of the land if no steps are taken for acquisition by the authorities
with in a period of six months inspite of service of notice for de-reservation
after the period of 10 years has expired.
H
It was also contended for the appellants that the decision in Municipal
-{
GIRNARTRADERSv. STATE
385
Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association and .,A
Ors., (1988) Supp. SCC 55 squarely covers the proposition of law wherein it
has been held that the development or the planning authority must take
recourse to acquisition with some amount of promptitude in order that the
compensation paid to the expropriated owner bears a just relation to the real
value of the land; and that the period of six months provided by Section 127 B
upon the expiry of which the reservation of the land under a development plan
lapses, is a valuable safeguard to the citizens against the arbitrary and
irrational executive action. Section 127 of the Act is a fetter upon the power
of eminent domain.
c
On behalf of the State it was submitted that in para 11 of the said
judgment, it is clearly held that the steps for commencement of the acquisition
obviously refer to the steps contemplated by Section 126(1) which means the
step taken of making an application under clause (c) of Section 126(1) of the
MRTP Act and that this Court had already observed that after the service of D
notice from the owner or any person interested in the land as provided under
Section 127 of the MRTP Act, the steps taken within six months of such
service, included any step taken by the appropriate authority for the acquisition
ofland as contemplated under the provisions of Section 126 (1) of the MRTP
Act It has been further contended that such observation of this Court is binding E
as precedent
Allowing Civil Appeal No.3922 of 2007 and as regards Civil Appeal
No.3703 of 2003 referring the question regarding interpretation and
applicability of Seetion l lA introduced into the Land Acquisition Act, 1894 F
by Amendment Act 68 of 1984 to the Maharashtra Regional and Town
Planning Act, 1966 for consideration by a larger Bench, the Court
HELD: (Per Naolekar, J. for himself and Agrawal, J.):
1.1. Giving a plain meaning to the words used in the statute would not G
be resorted to when there is a sense of possible injustice. In such a case, the
simple application of the words in their primary and unqualified sense is not
always sufficient and will sometimes fail to carry out the manifest intention
oflaw-giver as collected from the statute itself and the nature of subject-matter
and the mischiefs to be remedied. If the plain words lead apparently to do some H
386
SUPREME COURT REPORTS
[2007) 9 S.C.R.
A injustice or absurdity and at variance with, or not required by, the scope and
object of the legislation, it would be necessary to examine further and to test,
by certain settled rules of interpretation, what was the real and true intention
of the legislature and thereafter apply the words if they are capable of being
so applied so as to give effect to that intention. Where the plain literal
B interpretation of statutory provision were to manifestly result .in injustice
never intended by the legislature, the court is entitled to modify the language
used by the legislature so as to achieve the intention of the legislature and to
produce a rational construction. (Para 21) (412-A-C]
C
Municipal Coproration of Greater Bombay v. Dr. Hakimwadi Tenants'
Association & Ors., (1988] Suppl. SCC 55, referred to.
1.2. Where the legislature has used words in an Act which if generally
construed, must lead to palpable injustice and consequences revolting to the
D mind of any reasonable man, the court will always endeavour to place on such
words a reasonable limitation, on the ground that the legislature could not
have intended such consequence to ensue, unless the express language in
the Act or binding authority prevents such limitation being interpolated into
the Act. In construing an Act, a construction ought not be put that would work
E injustice, or even hardship or inconvenience, unless it is clear that such was
the intention of the legislature. It is also settled that where the language of
the legislature admits of two constructions and if construction in one way
would lead to obvious injustice, the courts act upon the view that such a result
could not have been intended, unless the intention had been manifested in
F express words. (Para 22) [412-D-F)
Collector of Customs v. Digvijaysinhji Spinning & Weaving Mills Ltd.,
(1962) 1 SCR 896 and His Holiness Kesvananda Bharati v. State of Kera/a,
AIR (1973) SC 1461, relied on.
G
1.3. The court must always lean to the interpretation which is a
reasonable one, and discard the literal interpretation which does not fit in
with the scheme of the Actunder consideration. [Para 23] [413-A)
Narashimaha Murthy v. Susheelabai, (1996) 3 SCC 644 and American
H Home Products Corporation v. Mac Laboratories Pvt. Ltd and Anr., AIR
'
-t
GIRNAR TRADERSv. STA TE
387
(1986) SC 137, relied on.
A
State of Punjab v. Sat Ram Das, AIR (1959) Punj. 497, referred to.
1.4. Many a times, it becomes necessary to look into the true intention
of the legislature in order to give a proper effect to the statutory provisions B
and in order to achieve the actual intended goal behind the legislation.
(Para 25) (413-F)
Tirath Singh v. Bachittar Singh and Ors., AIR (1955) SC 830;
Commissioner of Income Tax, Bangalore v. J.H. Got/a, AIR (1985) SC 1698 C
and State of Rajasthan v. Leela Jain and Ors., AIR (1965) SC 1296, relied on.
Andhra Cotton Mills Ltd v. Lakshmi Ganesh Cotton Mill, (1996) l ALT
537 AP, referred to.
2.1. The question for consideration before the Court in the Municipal D
Corporation of Greater Bombay Case has reference to first step required to
be taken by the owner after lapse of 10 years' period without any step taken
by the authority for acquisition ofland, whereby the owners of the land served
the notice for dereservation of the land. The Court was not called upon to
decide the case on the substantial step, namely, the step taken by the authority E
within six months of service of notice by the owners for dereservation of their
land which is second step required to be taken by the authority after service
of notice. The observations of this Court regarding the linking of word
'aforesaid' from the wordings 'no steps as aforesaid are commenced for its
-r·
acquisition' of Section 127 with the steps taken by the competent authority F
for acquisition of land as provided under Section 126(1) of the MRTP Act,
had no direct or substantial nexus either with the factual matrix or any of the
legal issues raised before it. It is apparent that no legal issues, either with
respect to interpretation of words 'no steps as aforesaid are commenced for
its acquisition' as stipulated under the provisions of Section 127 or any link G
of these words with steps to be taken on service of notice, were contended
before the Court. Thus, observations of the Court did not relate to any of the
legal questions arising in the case and, accordingly, cannot be considered as
the part of ratio decidendi. Hence, the reliance placed on mere general
observations or casual expressions of the Court, is not of much avail to the H
388
SUPREME COURT REPORTS
[2007) 9 S.C.R.
A respondents. (Para 30) (419-A-E)
Union of India and Ors. v. Dhanwanti Devi and Ors., (1996) 6 SCC 44;
Director of Settlements, A.P. and Ors. v. MR. Apparao and Anr., (2002) 4 SCC
638 and Shin-Etsu Chemical Co. ltd v. Aksh Optifibre Ltd and Anr., (2005)
B 7 sec 234, relied on.
Municipal Coproration of Greater Bombay v. Dr. Hakimwadi Tenants'
Asscciation & Ors., (1988) Suppl. SCC 55, referred to.
2.2. On a conjoint reaaing of Sections 126 and 127 of the MRTP Act, it
C is appar.ent that the legislative intent is to expeditiously a_cquire the land
reserved under the Town Planning Scheme and, therefore, various periods
have been prescribed for acquisition of the owner's property. The intent and
purpose of the provisions of Sections 126 and 127 has been well explained in
Municipal Corporation of Greater Bombay Case. If the acquisition is left for
D a time immemorial in the hands of the concerned authority by simply making
an application to the State Government for acquiring such land under the LA
Act, 1894, then the authority will simply move such an application and if no
such notification is issued by the State Government !or one year of the
publication of the draft regional plan under Section 126(2) read with Section
E 6 of the LA Act, wait for the notification to be issued by the State Government
by exercising suo motu power under sub-section (4) of Section 126; and till
then no declaration could be made under Section 127 as regards lapsing of
reservation and contemplated declaration of land being released and available
for the land owner for his utilization as permitted under Section 127. Section
F 127 permitted inaction on the part of the acquisition authorities for a period
of 10 years for de-reservation of the land. Not only t~at, it gives a further
time for either to acquire the land or to take steps for acquisition of the land
within a period of six months from the date of service of notice by the land
owner for de-reservation. The steps towards commencement of the acquisition
G in such a situation would necessarily be the steps for acquisition and not a
step which may not result into acquisition and ~erely for the purpose of
seeking time so that Section 127 does not come into operation. Providing the
period of six months after the service of notice clearly indicates the intention
of the legislature of an urgency where nothing has been done in regard to
H the land reserved under the plan for a period of 10 years and the owner is
GIRNAR TRADERSv. STA TE
389
deprived of the utilization of his land as per the user permissible under the A
plan. (Para 31) (419-F-H; 420-A-C)
Municipal Coproration of Greater Bombay v. Dr. Hakimwadi Tenants'
Association & Ors., (1988) Suppl. SCC SS, referred to.
2.3. The underlying principle envisaged in Section 127 of the MRTP
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. The step taken under the Section within
B
the time stipulated should be towards acquisition of land. It is a step of C
acquisition of land and not step for acquisition of land .. It is trite that failure
of authorities to take steps which result in actual commencement of acquisition
of land cannot be permitted to defeat the purpose and object of the scheme of
acquisition under the MRTP Act by merely moving an application requesting
the Government to acquire the land, which Government may or may not accept
Any step which may or may not culminate in the step for acquisition cannot
be said to be a step towards acquisition. (Para 31) (420-E-G)
D
3.1. The MRTP Act does not contain any reference to Section 4 or
Section SA of the LA Act. The MRTP Act contains the provisions relating to
preparation of regional plan, the development plan, plans for comprehensive E
developments, town planning schemes and in such plans and in the schemes,
the land is reserved for public purpose. The reservation of land for a particular
purpose under the MRTP Act is done through a complex exercise which begins
with land use map, survey, population studies and several other complex
factors. This process replaces the provisions of Section 4 of the LA Act and F
the inquiry contemplated under Section SA of the LA Act. These provisions
are purposely excluded for the purposes of acquisition under the MRTP Act.
The acquisition commences with the publication of declaration under Section
6 of the LA Act. The publication of the declaration under sub-sections (2) and
(4) of Section 126 read with Section 6 of the LA Act is a sine qua non for the G
commencement of any proceedings for acquisition under the MRTP Act. It is
Section 6 declaration which would commence the acquisition proceedings
under the MRTP Act and would culminate into passing of an award as provided
in sub-section (3) of Section 126 of the MRTP Act. Thus, unless and until
Section 6 declaration is issued, it cannot be said that the steps for acquisition H
390
SUPREME COURT REPORTS
[2007] 9 S.C.R.
A are commenced. [Para 33] (421-C-F]
3.2. If one reads Section 126 of the MRTP Act and the words used
therein are given the verbatim meaning, then the steps commenced for
acquisition of the land would not include making of an application under
B Section 126(1)(c) or the declaration which is to be made by the State
Government under sub-section (2) of Section 126 of the MRTP Act. On a
conjoint reading of sub-sections (I), (2) and ( 4) of Section 126, it is seen that
Section 126 provides for different steps which are to be taken by the
authorities for acquisition of the land in different eventualities and within a·
-i
C particular time span. Steps taken for acquisition of the land by the authorities
under clause (c) of Section 126(1) have to be culminated into Section 6
declaration under the LA Act for acquisition of the land in the Official Guette,
within a period of one year under the proviso to sub-section (2) of Section
126. If no such declaration is made within the time prescribed, no declaration
D under Section 6 of the LA Act could be issued under the proviso to sub-section
(2) and no further steps for acquisition of the land could be taken in pursuance
of the application moved to the State Government by the planning authority or
other authority. Proviso to sub-section (2) of Section 126 prohibits publication
of the declaration after the expiry of one year from the date of publication of
E draft regional plan, development plan or any other plan or scheme. Thus, from
the date of publication of the draft regional plan, within one year an application
has to be moved under clause (c) of Section 126(1) which should culminate
into a dech.1ration under Section 6 of the LA Act. In other words, during one
year of the publication of the draft regional plan, two steps need to be
F completed, namely, (i) application by the appropriate authority to the State
Governm~nt under Section 126(1)(c); and (ii) declaration by the State
~
G
H
Government on receipt of the application mentioned in clause (c) of Section
126(1) on satisfaction of the conditions specified under Section 126(2). The
only exception to this provision has been given under Section 126(4).
(Para, 34 35] [421-G, H; 422-A-E]
3.3. In the present case, the amended regional plan was published in
the year 1991. Thereafter, the steps by making an application under clause
(c) of sub-section (1) of Section 126 for issuance of the declaration of
acquisition and the declaration itself has to be made within the period of one
GIRNAR TRADERSv. STA TE
391
year from the date of the publication of regional plan, that is, within the period A
of one year from 1991. The application under Section 126{l)(c) could be sai~
to be a step taken for acquisition of the land if such application is moved withi"
the period of one year from the date of publication of regional plan. Th~
application moved after the expiry of one year could not result in the
publication of declaration in the manner provided under Section 6 of the LA B
Act, under sub-section (2) of Section 126 of the MRTP Act, there being a
prohibition under the proviso to issue such declaration after one year.
(Para 35) (422-E-G]
3.4. The High Court has committed an apparent error when it held that C
the steps taken by the respondent-Corporation on 9.9.2002 and 13.9.2002
would constitute steps as required under Section 126(l){c) of the MRTP Act.
What is required under Section 126(l)(c) is that the application is to be moved
to the State Government for acquiring the land under the LA Act by the
planning/local authority. Passing of a resolution by the Improvement D
Committee recommending that the steps be taken under Section 126(l)(c) or
making an application by the Chief Engineer without there being any authority
or resolution passed by the Municipal Corporation, could not be taken to be ·
steps taken of moving an application before the State Government for acquiring ·
the land under the LA Act. The High Court has committed an apparent error , E
in relying on these two documents for reaching the conclusion that the steps
for acquisition had been commenced by the Municipal Corporation before the
expiry of period of six months which was to expire on 18.9.2002. Further, the
letter dated 17.9.2002 shows that the resolution was passed by the Municipal
Corporation on 16.9.2002 whereby it was informed that the sanction had been
p
accorded to initiate the acquisition proceedings for the land in question. The
letter also mentioned that the authorization had been given to the Municipal
Commissioner to make an application to the State Government as per the
provisions of Section 126(1) of the MRTP Act. Under Section 2(19) read with
Section 2(15) with Section 126(1) of the MRTP Act, the application to the G
State Government under clause (c) of Section 126(1) has to be made by the
planning/local authority, i.e. the Municipal Corporation of Greater Mumbai
constituted under the Bombay Municipal Corporation Act. The Municipal
Corporation had passed a resolution delegating authority to Municipal
Commissioner for making an application to the State Government, but the H
392
SUPREME COURT REPORTS
[2007) 9 S.C.R.
A application/letter either dated 13.9.2002or17.9.2002 were made to the State
Government by the Chief Engineer (Development Plan). The authority was
given by the Municipal Corporation to the Municipal Commissioner to make
an application to the State Government No such application or letter moved
by the Municipal Commissioner has been produced before this Court.
B
(Para 36( (433-8-H)
State of Maharashtra and Anr. v. Sant Joginder Singh Kishan Singh
and Ors., [1995) Supp. 2 SCC 475, dissented from.
C
Nagpur Improvement Trust v. Vasantrao and Ors., (2002) 7 SCC 657
and UP. Avas Evam Vikas Parishad v. Jainul Islam and Anr., (1998( .2 SCC
467, referred to.
4.1. In view of the decision on the interpretation and applicability of
D Section 127 of the MRTP Act to the facts of the present case, the appellants
are entitled to the relief claimed, and the other question argued on the
applicability of the newly inserted Section 11 A of the LA Act to the acquisition
of land made under the MRTP Act need not require to be considered in this
case. [Para 37) (424-CJ
E
4.2. The impugned judgment and order dated 18.3.2005 passed by the
Division Bench of the Bombay High Court is set aside. As no steps have been
taken by the Municipal Corporation for acquisition of the land within the time
period, there is deemed de-reservation of the land in question and the
appellants are permitted to utilise the land as permissible under Section 127
F of the MRTP Act. (Para 38] (424-D-EI
Per P.K. Balasubramanyan, J.:
I.I. On an analysis of the provisions in the context of the questions that
G are before this Court, what emerges is that the publication of the ptan with
the reservation therein itself operates as a notification like the one under
Section 4(1) of the Land Acquisition Act, that a declaration has to be made
akin to a declaration under Section 6 of the Land Acquisition Act, the
compensation has to be paid not with reference to the date of the notification
H under Section 125 of the Act but with reference to the date of declaration
GIRNAR TRADERSv. STATE
393
_ ..
under Section 126 of the MRTP Act and that a declaration under Section 126 A
of the Act had to be made within one year of the application for acquisition
made by the authority under the MRTP Act. But in case the declaration was
not so made, a fresh declaration has to be issued and compensation has to be
paid with reference to the date of the fresh declaration and the authority had
also the power to take prior possession in case of urgency on the conditions B
stipulated under Section 129 of the MRTP Act. The MRTP Act provides for
lapsing of reservations but does not provide for lapsing of the acquisition.
>--
The reservation lapses on the expiry of ten years and on the expiry of six
months after a purchase notice is issued by the owner of the land unless steps
are taken in the meanwhile to proceed with the acquisition. If there is no c
agreement regarding compensation and acquisition then the State
Government has to be approached "for acquiring such land under the Land
Acquisition Act, 1894." (Para 12) (431-G-H; 432-A-C)
1.2. Under the Land Acquisition Act, a notification under Section 4(1) D
of the Act is followed by a declaration under Section 6 of the Act. The
amendment introduced by Act 68of1984 provides that no declaration under
'I'
Section 6 shall be made after the expiry of one year from the date of
publication of the notification under Section 4(1) of the Act. It further provides
that the Collector, after the declaration is made, has to take an order for E
acquisition, mark out the land available, issue notice to persons interested in
the land to be acquired and for, passing an award containing the true area of
the land acquired, the compensation that should be allowed for the land and
the apportionment of the compensation among the claimants, if there are more
,...
than one. Section l IA introduced by Act 68of1984 provides that the Collector F
shall make an award within a period of two years from the date of publication
of the declaration and if no award is made within that period the entire
proceedings for the acquisition of the land shall stand lapsed. Thus, the Land
Acquisition Act, as amended in the year 1984 provides for two lapses of the
acquisition; one, in a case where a declaration under Section 6 is not made
G
within one year of the publication of the notification under Section 4(1) of the
Act and; two, the award itself not being made within a period of two years
-{ from the publication of the declaration. (Para 13) (432-D, GI
2. It is clear that when the MRTP Act was enacted, the Land Acquisition
Act that was referred was the unamended Act of 1894. That Act did not contain H
394
SUPREME COURT REPORTS
[2007] 9 S.C.R.
A either a provision for lapsing of the acquisition on the non issue of a
__).
declaration under Section 6 of the Act within one year of a notification under
Section 4(1) of the Act or by the award not being rendered within two years
of a declaration under Section 6 of the Act. These two time limits were
prescribed by Act 68of1984. Thereafter, the State Legislature amended the
B MRTP Act by substituting the proviso to sub-Section (2) of Section 126
providing that a declaration shall not be made after the expiry of one year
from the date of notification under Section 125 of the MRTP Act.
Simultaneously, sub-Section (4) was amended providing that notwithstanding
--(
the fact that a declaration had not been made within one year, the Government
C could make another declaration under Section 126 of the MRTP Act in terms
of the Land Acquisition Act in the manner provided by sub-sections (2) and
(3) of Section 126 with the only consequence that the compensation payable
shall be the compensation as on the date of the fresh declaration. Significantly,
the State Legislature did not introduce any provision either for the lapse of
D an acquisition or for lapsing of the proceedings for acquisition if an award is
not made within two years of the declaration under Section 126 of the MRTP
Act read with Section 6 of the Land Acquisition Act. (Para 15) {433-B, El
Chairman of the Municipal Commissioners of Howrah v. Shalimar Wood
E Products & Anr., (1963) 1S.C.R.47; UP. Awas Evam· Vikas Parishadv. Jainu/
Islam & Ors:, (1998} 2 SCC 467 and Nagpur Improvement Trust v. Vasantrao
& Ors., [2002) 7 S.C.C. 657, relied on.
Secretary of State v. Hindustan Cooperative Insurance Societies Ltd.,
AIR (1931) P.C. 149; Rangoon Botatoung Company v. Collector of Rangoon,
F 39 Indian Appeals 197; Ujagar Prints & Ors. v. Union of India & Ors., ( 1989) ~
3 S.C.C. 488; Nagpur Improvement Trust and Anr. v. Vithal Rao & Ors., (1973)
G
1 SCC 500; State of Kera/a & Ors. v. T.M P<Jter & Ors., (1980) 3 S.C.C. 554
and The State of Madhya Pradesh v. M. V. Narasimhan, [1975) 2 S.C.C. 377,
referred to.
3.1. Under our Constitution, there is a distribution oflegislative powers.
between the Parliament and the legislatures of States. Under Article 246 (1)
of the Constitution, Parliament has exclusive power to make laws with respect }-
to any of the matters enumerated in List I of the Seventh Schedule to the
H Constitution. Under Article 246 (3) of the Constitution, State has exclusive
l
GIRNAR TRADERSv. STA TE
395
power to make laws for the State with respect to any of the matters enumerated. A
in List II in the Seventh Schedule to the Constitution. Of course, under Article
246(2) of the Constitution, in respect of matters enumerated in List III in the
Seventh Schedule to the Constitution, both the Parliament and the State
Legislatures have the power to make laws. The legislative fields thus are well
defined subject to some overlapping here and there. Therefore, in the context B
of the Indian Constitution and what can be called the separation of legislative
powers, the question arises as to how far it is open to adopt the theory of
legislation by reference and to adopt the consequences flowing therefrom. No
doubt, as on that day, the legislature had chosen to adopt the parliamentary
legislation. Actually, when a State Legislature incorporates the provisions of C
a parliamentary enactment as part of its own legislation, it is enacting it as
on that day as its own legislation. The effect thereof can be conceived to be a
case of the legislature re-enacting the parliamentary enactment in respect of
a subject matter which is exclusively within its legislative field.
f Para 26) 1441-F-H; 442-A-BJ D
3.2. It cannot be readily inferred that the State Legislature has made
such a surrender of its legislative powers when it adopts a parliamentary
enactment as on the date it existed, by referring to it in its enactment or by
incorporating it in its enactment. This aspect requires consideration by a E
Constitution Bench considering that it also involves an ·interpretation of the
Constitution and the Constitutional Scheme of Legislation.
f Para 26] (442-F-G)
4.1. The second of the questions, of course, relate to the interpretation F
of Section 127 of the MRTP Act. The question has to be considered in the
light of the decision in Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants' Association & Ors., and the expression used in Section
127 of the Act which speaks of the land not being acquired or no steps as
stated earlier are commenced for its acquisition. Obviously, under the MRTP G
Act, in a case where it is not acquired by negotiation, the authority can only
request the State Government to acquire the lands. In the context of Sections
126 and 127, the question is whether it is not sufficient ifthe authority within
six months of receipt of the purchase notice issued by the owner, applies to a
State Government for acquiring the land as a step contemplated by Section H
396
SUPREME COURT REPORTS
[2007] 9 S.C.R.
A 127 of the MRTP Act. This is also a question which is of considerable
importance in the context of the Town Planning Acts and the lapsing of schemes
as distinct from the lapsing of acquisition. This is also an important question
which requires an authoritative pronouncement, in the context of the argument
on behalf of the appellant that the step contemplated by Section 127 of the Act
B is a step under the Land Acquisition Act and not a step under the MRTP Act
f Para 27) (442-G-H; 443-A:-C)
4.2. Under Section 126(1) of the Act the authority under the MRTP Act
can only make an application to the State Government for acquiring the
C concerned land under the Land Acquisition Act, 1894. This is clear from
Section 126(l)(c). And clause (c) applies, when the acquisition cannot be made
in terms of clauses (a) and (b) of Section 126Q). The authority under the
MRTP Act cannot be set in motion proceeding under the Land Acquisition
Act while acting under Section 126(1) of the MRTP Act. It can only request
D the State Government to acquire the land and the State Government initiates
steps to acquire it when it is satisfied that the land, the acquisition of which
is sought for, is needed for the public purpose specified in the application
made by the authority under the MRTP Act It is not as if the authority under
the MRTP Act can issue a declaration in the manner provided for under
E Section 6 of the Land Acquisition Act read with Section 126(2) of the MRTP
Act. f Para 28) [443-D-F)
F
4.3. When Section 127 of the Act is interpreted, it is not possible to
forget the impact of Section 126(1) of the Act. Obviously, the provisions have
to be read harmoniously. The court can only postulate the question whether
the authority under the MRTP Act has done which it possibly could, in terms
of the statute. Therefore, while reading Section 127, one has to take note of
the fact that the authority under the MRTP Act can only make an application
for acquisition under the Land Acquisition Act and nothing more. Therefore,
when Section 127 of the MRTP Act says that "if within six months from the
G date of the service of such notice, the land is not acquired or no steps as
aforesaid are commenced for its acquisition" the reservation shall be deemed
to lapse. One has to see what the Authority under MRTP Act has done. The
first part of the provision above quoted is unambiguous and that is a case where
the land is actually acquired. Or, in other words, the acquisition is complete.
H The second limb above quoted shows that it is possible to avert the lapse of
+
-.f
GIRNAR TRADERSv. STA TE
397
the scheme if steps as aforesaid are commenced for its acquisition. The step A
that the authority under the MRTP Act can commence, is the step of applying
to the State Government to acquire such land under the Land Acquisition Act.
After all, the legislature has given the authority a locus poenitentiae for.
invoking the machinery for acquisition under the Land Acquisition Act.
Therefore, when a purchase notice is received by it, in all reasonableness, B
what it can do is to make an application to the State Government to make the
acquisition within six months of the receipt of the purchase notice.
[Para 291 [443-G-H; 444-A-DJ
Municipal Coproration of Greater Bombay v. Dr. Hakimwadi Tenants' C
Association & Ors., [1988) Suppl. SCC 55, relied on.
Girnar Traders v. State of Maharashtra & Ors., (2004) 8 S.C.C. 505
and State of Maharashtra & Anr. v. Sant Joginder Singh Kishan Singh &
Ors., (1995) 2 S.C.R. 242, referred to.
5.1. In the instant case, the application has been made according to the
respondents by the Chief Engineer as authorised by the local authority and to
say that the letter written by him is unauthorised or is not adequate compliance
of Section 127 of the MRTP Act appears to be unwarranted especially when
D
one keeps in mind the laudable objects of the MRTP Act. The MRTP Act serves E
a great social purpose and the approach of the court to an interpretation must
be to see to it that the social purpose is not defeated as far as possible.
Therefore, a purposive interpretation of Section 127 of the Act so as to achieve
the object of the MRTP Act is called for.
[Para 29 and 301 (444-G-H; 445-AI F
5.2. There has been sufficient compliance with the requirement of
Section 127 of the MRTP Act by the authority under the Act by the acquisition
initiated against the appellant in the appeal No.3922 of 2007 and the
reservation in respect of the land involved therein does not lapse by the G
operation of Section 127 of the Act. However, the said question also would
stand referred to the larger Bench. [Para 31 J 1445-B-C)
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3703 of2003.
H
'
398
SUPREME COURT REPORTS
[2007] 9 S.C.R.
A
From the final Judgment and Order dated29.03.2000 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Writ Petition No. 822 of
2000.
V.A.Mohta, Soli J.Sorabjee, U.U.Lalit, Shyam Divan, ShekharNaphade
and Bhim Rao Naik, Sanjeev Kumar Choudhary, Sanjay Visen, Nilkant Nayak,
B P.V.Yogeswaran, Ruby Singh Ahuja, Arunabh Chowdhary, Ardhendumauli
K.Prasad, Reetu Shanna, Amo! Chitle, Manu.Aggarwal, Manik Karanjawala,
Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah, Rahul Joshi, R.K.Adsure,
Chinmoy Khaladkar, Sushila Karanjkar, Gautam Godara, Bhargava V.Desai,
Rahul Gupta and Reema Shanna for the appearing parties.
c
The Judgment of the Court was delivered by
P.P. NAOLEKAR, J. I. We have had the benefit of perusing the judgment
prepared by learned brother P.K. Balasubramanyan, J. in Civil Appeal No.3703
of2003 titled Mis. Girnar Traders v. State of Maharashtra and Ors., wherein
D learned brother has taken into consideration various decisions of this Court,
including decisions delivered by 3-Judge Benches, and various aspects
considered therein, and thought it proper to refer the question regarding
interpretation and applicability of Section 11 A introduced into the Land
Acquisition Act, 1894 (for short "the LA Act") by Amendment Act 68 of 1984
to the Maharashtra Regional and Town Planning Act, 1966 (for short "the
E MRTP Act") for consideration by a larger Bench. A 3-Judge Bench of this
Court in Nagpur Improvement Trust v. Vasantrao and Ors., [2002] 7 SCC 657
and UP. Avas Evam Vikas Parishad v. Jainul Islam and.Anr., [1998] 2 SCC
467, on interpretation of the provisions of the Acts under challenge, has held
that the LA Act was incorporated in those statutes, that is, they were cases
F of legislation by incorporation and, therefore, the amendment brought about
subsequently in the LA Act would not apply to .the statutes in question.
However, beneficial amendment of payment of compensation under the
amended provisions of the LA Act was made applicable and the owner of the
land was held to be entitled to the beneficial payment of compensation. It
appears, it was so held to save the Acts from the vice of arbitrary and hostile
G discrimination. There does not appear to be any justifiable reason for not
applying this principle so far as it relates to the acquisition of land. If the land
is not acquired within the stipulated time, then the whole proceedings in
acquisition comes to an end, and thereby the owner of the land would be
entitled to retain his land which appears to be the superior right than the
H owner's right to get the compensation for acquisition of his land. A 2-Judge
\.-
GIRNARTRADERSv.STATE[P.P.NAOLEKAR,J.]
399
Bench of this Court in State of Maharashtra and Anr. v. Sant Joginder Singh A
Kishan Singh and Ors., [1995] Supp. 2 SCC 475 has held that Section I IA
of the LA Act is a procedural provision and does not stand on the same
footing as Section 23 of the LA Act. We find it difficult to subscribe to the
view taken. Procedure is a mode in which the successive steps in litigation
are taken. Section I IA not only provides a period in which the land acquisition B
proceedings are to be completed but also provides for consequences, namely,
that if no award is made within the time stipulated, the entire proceedings for
the acquisition of the land shall lapse. Lapsing of the acquisition of the land
results in owner of the land retaining ownership right in the property and
according to us it is a substantive right accrued to the owner of the land, and
that in view thereof we feel Section I IA of the LA Act is part of the law which C
creates and defines right, not adjective law which defines method of enforcing
rights. It is a law that creates, defines and regulates the right and powers of
the party. For this and the other reasons assigned by our learned brother, we
are in agreement with him that the question involved requires consideration
by a larger Bench and, accordingly, we agree with the reasons recorded by
my learned brother for referring the question to a larger Bench.