DR. ABRAHAM PATANI OF MUMBAI & ANR versus THE STATE OF MAHARASHTRA & ORS. on 2 September 2022

[2022] 19 S.C.R. 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 – HarmoniousConstruction – Public Interest – Colourable exercise of power-Appellants opposed the construction of road on their land byRespondent No. 2 (Municipal Corporation of Mumbai) proposedin Development Plan (DP) - Respondent No. 1 issued a directiveunder S. 37(1) of Act, 1966 acknowledging the need for aconnecting road but stating that it was “not feasible” to pursueconstruction of an 18.30 metre road through the Appellants’ land –Respondent No. 2 renewed the proposal to have the link roadconstructed through Appellants’ land under Sec. 126 of the MRTPAct 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. 1seeking 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 HighCourt - Acquisition exercise under the LAA was put in motion -Respondent No. 10 and 11 issued notifications under ss. 4 and 6 ofthe LAAct directing that Appellants’ land be acquired in public interest- Appellants’ interim prayer for status quo vis-à-vis the property wasrejected by the High Court – High Court through the final judgmentaffirmed the need to acquire Appellants’ land for construction ofthe link road in public interest- High Court held that MMC Actconferred Respondent No. 2 with the power to acquire land andbuild a new road which required neither prior permission from theState Govt., nor for the road itself to be reflected in the DP- MMCAct and MRTP Act are distinct, and the powers granted toRespondent No. 2 under the former would not be impliedly repealed

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SUPREME COURT REPORTS

Aby the latter merely because it was a subsequent statute- Whetherthere is conflict between MMC and MRTP Act - Held: Merely becauseboth statutes are concerned with land acquisition, may notnecessarily result in conflict between them- Court’s endeavour shallalways be to harmoniously construct such provisions so that thelegislative intent underlying both statutes can be fulfilled - There isBno 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 alsopermits the landowners themselves to air their grievances -The twostatutes exist side-by-side with some degree of overlap- ProceduralCrules must not be allowed to defeat the basic purpose of a statute -In several situations, the needs of the many must outweigh that ofthe few- Notion of public interest will necessarily reflect thespecificities of the situation at hand-the present case to be anappropriate instance where public interest must have paramountcyover private interest-The procedure contemplated under Section 91Dof the MMC Act to commence proceedings under the LAA forprocuring land was substantially complied with- Respondent No. 2validly exercised its powers under the MMC Act to direct theacquisition of the Appellants’ land.

Dismissing the appeal, the CourtE

Conclusion

Dismissing the appeal, the CourtE

HELD: 1.1 Under the MMC Act, the power to make a newpublic street is derived from S. 291. For the purpose of making anew street, S. 296 of the Act empowers the Commissioner toacquire land, subject to fulfilment of the conditions stipulated inSs. 90-92. There is certain degree of overlap between theseFprovisions, and S. 37 of the MRTP Act as they deal withprocurement of land. The latter is relevant in the context of a DPwhereas the MMC Act regulates the manner in which the MumbaiMunicipal Corporation operates. Merely because both statutesare concerned with land acquisition, may not necessarily resultGin conflict between them. [Paras 23-24][1064-C-D, E-F]

1.2 Provisions of one statute should not be construed orinterpreted in a manner that they render redundant the provisionsin another statute. The Court’s endeavour shall always be toharmoniously construct such provisions so that the legislative intent underlying both statutes can be fulfilled. When thelegislature knowingly allows two statutes to operate inthe same space, it is a reasonable presumption that the legislativedesign would have been for both to remain operative without anyoverriding effect. The Court shall steer two statutes away from adirect collision with each other, even if their areas of operationare broadly similar. [Paras 26 & 29][1065-A; 1067-C]

1.3 External statutes or alternate schemes/plans under theMRTP Act or otherwise, should not be allowed to frustrate theDP or the overall objective of planned development under theMRTP Act. As the DP is the primary means of achieving thepurpose of the MRTP Act, any violence done to the former wouldnecessarily affect the latter. Conversely, if the former is leftessentially undisturbed then it cannot be said that the spirit andscheme of the MRTP Act has not been honoured. Theconstruction of the link road in the present case does not, in anyway, frustrate the DP or defeat the overall objective of the statute.Only in instances where a requirement of the DP is beingabrogated that a conflict arises and the observations in GirnarTraders 2011 and Manohar Joshi become relevant. [Paras 36 and37][1069-F-G; 1070-A-C]

1.4 The court rejects the contention of the Appellants thatthe only means by which the link road through their propertycould have been constructed was through an amendment to theDP under S. 37 of the MRTP Act. Respondent No. 2 had the optionto either follow the procedure under the MRTP Act, or to invokethe parallel process provided under Ss. 91, 291(a) and 296 of theMMC Act. [Para 43][1071-E]

2.1 The court also does not find merit in the argument thatRespondent No. 2’s resort to the MMC Act constitutes acolourable exercise of power. Once we have ascertained that thetwo legislations in question, the MRTP Act and the MMC Act,exist in separate spheres with only incidental overlap, thepossibility of a colourable exercise of power by Respondent No.2 falls away. There is no direct or indirect bar on the exercise ofpowers under S.s 91, 291(a), and 296 of the MMC Act. Merely A

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Abecause a right to object to a modification of a DP exists under S.37 of the MRTP Act does not automatically give it an ascendantposition in the hierarchy that Appellants seek to create betweenthe MRTP Act and the MMC Act. It is up to the legislature todetermine the amount of discretion that is accorded to the relevantBauthorities under each statute. [Paras 44, 45 & 47][1071-F; 1072-A-B. E]

2.2 Closer reading of the MMC Act and the LAA showsthat there are adequate safeguards available and, in the facts ofthe case, Appellants were given ample opportunity to object toCthe proposed expropriation of their land. Mechanism for hearingobjections is provided under S.5A of the LAA. Not only does theState Govt. first evaluate the application under S. 91, but S.5A ofLAA also permits the landowners themselves to air theirgrievances. Decision by the appellants to stick to their positionin terms of the notification and award being non-est due to theDpendency of their WP at the High Court cannot entitle them tonow argue that they were treated unfairly in the proceedings underthe 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 basicpurpose of a statute or hamper the pursuit of justice unlessEviolation of the procedure would itself amount to grave injustice.Rigid adherence to the notion that the Commissioner can be theonly official to actually send an application under S. 91 may not bewarranted in all scenarios. [Paras 64 and 70][1078-F; 1081-A-B]

3.2 Consequence in both scenarios, whether theFCommissioner or some other official acts under the provision,would be that land acquisition proceedings are commenced underthe LAA. None of the appellants’ rights are abrogated by theChief Engineer making the application under S. 91. Legislativeintent of ss. 126 and 127 which was to balance the power of theGState of ‘eminent domain’. [Paras 71 & 73][1081-C-D; 1083-F]

3.3 S.91 imposes a statutory responsibility on RespondentNo. 3, the Commissioner, to initiate the land acquisition process.Commissioner must apply his/her mind and take a conscious H

decision in favour of the acquisition proceedings being initiatedunder the LAA. Once the Commissioner is party to the MinisterialCommittee and a determination is made by the Committee that anew public street must be laid and land must be acquired for thispurpose under S. 91 of the MMC Act read with the LAA, it is nolonger consequential which authority conveys this decision. Theconclusion that the land is required for the construction of theroad cannot be invalidated on this ground. [Para 78][1085-F-G]

3.4The court is inclined to hold and affirm that there hasbeen substantial compliance with S.91 to the extent that itachieves the objective behind the provision. Undoubtedly,Respondent No.3 would have been a participant in thedeliberations on whether to initiate the process under S. 91 forprocurement of land. The final application was made only aftergaining approval from him and the rest of the Committee. Purposebehind the provision of ensuring that the highest-ranking officerin the municipal corporation is privy and amenable to theacquisition proceedings is achieved by his participation and signoff on the action, regardless of whether he personally sends theapplication. The court, therefore, holds that once the proposalhas been approved by the Commissioner, the lack of a formalsignature from him on the eventual application is not a seriousdefect and cannot annul the entire process that followed. Thecourt is satisfied that S.91 of the MMC Act has been substantiallycomplied 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 theorder of the State Govt. to carry out the land acquisition issupposed to be in a specific form. The court has no hesitation intaking a pragmatic and practical approach to this requirement.The fact that all the steps under the LAA were carried out issufficient evidence that there has been adherence to the spiritand scheme of S.91 regarding Respondent No. 1 being involvedand sanctioning the actions of Respondent Nos. 10 & 11. Therehas been substantial compliance with the provision and theobjective underlying it has been honoured. [Paras 87, 88 &89][1089-B-C, E-F]

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A4.1 In a democratic society governed by the rule of law, therights of an individual carry immense importance and are thefoundational blocks on which our legal, social, and political milieuthrives. Under no circumstances should the rights of individualcitizens be trodden upon arbitrarily and any curtailment of themmust be scrutinized with utmost care. In several situations, theBneeds of the many must outweigh that of the few. Notion of publicinterest will necessarily reflect the specificities of the situationat hand. In the present case, the public interest which has beenemphasized upon by Respondents is the urgent need for thecreation of a connecting road through the Appellants’ property.CThe need stems from the traffic congestion caused on the routefrom 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 exercisedits powers under the MMC Act to direct the acquisition of theDAppellants’ land. In court opinion, the two statutes exist side-by-side with some degree of overlap. The powers under the MMCAct remain intact even in cases where they cover a subject thatis also provided for in the MRTP Act. Procedure contemplatedunder Section 91 of the MMC Act to commence proceedingsunder the LAA for procuring land was substantially complied with.EPart of the provision relied upon by the Appellants is directory innature and requires substantial compliance rather than strictcompliance. This Court dismisses the present appeal as beingdevoid of merit. [Paras 100, 101 & 103][1093-B-D, F]

Girnar Traders v. State of Maharashtra [2007] 7 SCCF555 : [2007] 9 SCR 383 – distinguished.

Girnar Traders v. State of Maharashtra & Ors. [2011]3 SCC 1 : [2011] 3 SCR 1; Manohar Joshi v. State ofMaharashtra & Ors. [2012] 3 SCC 619; The ChiefInspector of Mines & Ors. v. Lala Karam Chand ThaparG& 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

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

545 : [1985] 2 Suppl. SCR 51; C.B. Gautam v. Unionof 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 ofIndia [1984] 3 SCC 46 : [1984] 3 SCR 229; Sugandhiv. P. Rajkumar [2020] 10 SCC 706; State of U.P. &Ors. v. Babu Ram Upadhya [1961] 2 SCR 679; ReserveBank of India v. Peerless General Finance andInvestment Co. Ltd. & Anr [1987] 1 SCC 424 : [1987]2 SCR 1; S. Gopal Reddy v. State of A.P [1996] 4 SCC596 : [1996] 3 Suppl. SCR 439; Sharif-ud-din v. AbdulGani Lone [1980] 1 SCC 403; Harakchand MisirimalSolanki & Ors. v. The Collector & Ors 2008 SCCOnLine 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 Commissionv. Saiyed Hussain Abbas Rizwi & Anr [2012] 13 SCC61; Ramilila Maidan Incident v. Home Secretary, Unionof 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

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ACIVIL APPELLATE JURISDICTION: Civil Appeal No. 5929of 2022.

From the Judgment and Order dated 30.05.2022 of the High Courtof Judicature at Bombay in Writ Petition No. 3060 of 2002.

Shyam Divan, Sr. Adv., V. Giri, Jonathan Solomon, Vikas Mehta,BTapan Masta, Rajat Sehgal, Ms. Soniya Putta, Adith Gupta, Advs. forthe Appellants.

Girish Godbole, Shekhar Naphade, Sr. Advs., Mrs. B. Sunita Rao,Gunmaya S. Mann, E. C. Agrawala, Ms. Aishwarya Bhati, FarahHashmi, Dr. Prashant Pratap, Kumar Mitakshara, Sunil Murarka, PankajCAgrawal, Rajesh Kumar, Siddhant Sahay, S.C. Dharmadhikari, AniruddhaJoshi, Shashibhushan P. Adgaonkar, Omkar J. Deshpande, Advs. for theRespondents.

The Judgment of the Court was delivered by SURYA KANT, J,D

1. Leave Granted.

2. This appeal arises from the judgment dated 30.05.2022 passedby the Bombay High Court dismissing the Appellants’ Writ Petition inwhich they had sought to quash a series of resolutions passed byERespondent No. 2, as well as notifications and a final award ofcompensation under the Land Acquisition Act, 1894 (“LAA”) issued byRespondent Nos. 10 & 11, which cumulatively resulted in acquisition ofparts of the Appellants’ property for construction of a new road.

A. FACTS

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3. The genesis and course of the present dispute spans severaldecades and includes one prior round of litigation before this Court. Thecrux of the matter arises from the opposition by Appellants to theconstruction of a road through their property by Respondent No. 2, theMunicipal Corporation of Mumbai. The property in question was acquiredGby 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’ landwas floated initially in a Development Plan (“DP”) of 1976. After this,the road was realigned in 1984 in order to secure smooth passage throughAppellants’ land. Appellants raised objections in this regard in 1992 and H

the planned road was deleted from the DP via notification dated12.11.1992 issued by Respondent No. 1.

5. During this period, various complaints were allegedly receivedfrom residents in surrounding areas regarding the need for a road inorder to connect the Mahakali Caves with the Central Industrial District.Respondent No. 1 issued a directive under Section 37(1) of theMaharashtra Regional Town Planning Act, 1966 (“MRTP Act”) on07.06.1993, acknowledging the need for a connecting road but statingthat it was “not feasible” to pursue construction of an 18.30 metre roadthrough the Appellants’ land. Thus, Respondent No. 2 was instructed toanalyse the legal and technical aspects of the project before submittinga proposal for setting up the road with minor modifications in the DPunder Section 37 of the MRTP Act.

6. Meanwhile, Appellants completed construction of a bungalowon their land in 1994. However, subsequent sanctions sought by theAppellants for further buildings were rejected by the MunicipalCorporation on the ground that a proposal for creation of a link roadthrough the property was under consideration.

7. Respondent No. 2 eventually passed Resolution No. 651 on10.09.1996 that renewed the proposal to have the link road constructedthrough Appellants’ land. Two further resolutions were then passed: a)Resolution No. 39 dated 18.08.1998 by the Improvement Committeeaffirming the proposal for the link road; b) Resolution No. 536 on08.12.1998 by Respondent No. 2 under Sec. 126 of the MRTP Act andSecs. 90(1) & (3) of the Mumbai Municipal Corporation Act (“MMCAct”) for the acquisition of land in order to build the new road line.

8. The Office of the Chief Engineer (Development Plan) forwardedan application to Respondent No. 1 on 05.02.1999 seeking to initiateproceedings under the LAA. Appellants filed protestations before thestate authorities claiming that the dimensions and route for the link roadwould touch the buildings that had been constructed by them. Giventhese continuing disputes, Respondent No. 2 eventually passed ResolutionNo. 1167 on 09.03.2001 which noted that there were three other roadlines that connected the Mahakali Caves with the Central MIDC.Consequently, it was concluded that an additional road through Appellants’property was redundant.

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A9. Private Respondents, Nos. 6-9, challenged this decision beforethe HC in WP No. 1072 of 2001. While this was pending, RespondentNo. 2 proposed to reconsider Resolution No. 1167. Appellants filed aNotice of Motion in the already pending WP, seeking to restrainRespondent No. 2 from once again tabling the motion to have a link roadthrough their land. This Notice was dismissed by the High Court onB18.10.2002 with liberty granted to Respondent No. 2 to reconsider thedecision made on 09.03.2001 but with a caveat that any fresh resolutionpassed thereafter would only be given effect to after obtaining leavefrom the Court.

10. Respondent No. 2 proceeded to pass Resolution No. 1117 onC28.10.2002 which withdrew Resolution No. 1167, and partially modifiedthe earlier resolution passed on 08.12.1998. The net result of this wasthat the acquisition of Appellants’ land was sanctioned for building an18.30 metre new road line. Appellants moved Writ Petition No. 3060 of2002 challenging the renewal of the plan to construct the link road andDseeking 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 2001with the observation that after the passage of Resolution No. 1117, theWP in question had become infructuous and the validity and legality ofEthe Resolution would be decided by the High Court in the proceedingsinitiated by Appellants.

12. During pendency of the Appellants’ WP, and pursuant to theapplication of 05.02.1999, the acquisition exercise under the LAA wasput in motion. Respondent No. 10 and 11 issued notifications underFSections 4 and 6 of the LAA directing that Appellants’ land be acquiredin public interest. The award of compensation under Section 11 wasdeclared on 26.11.2007. Appellants consequently incorporated a challengeto the notification under Sec. 6 and the award of compensation, intotheir prayer in the pending Writ Petition.

G13. Appellants’ interim prayer for status quo vis-à-vis the propertywas rejected by the High Court and, being aggrieved by this denial, theyinstituted SLP (Civil) No. 22849 of 2008 in which the Supreme Courtordered that status quo be maintained as on 22.09.2008. The SLPremained pending for over a decade until it was disposed of vide orderdated 05.12.2019 with a request to the High Court to finally decide theH

DR. ABRAHAM PATANI OF MUMBAI & ANR. v.

matter. The order of status quo was extended till the final judgment bythe High Court.

14. Before the High Court, the Appellants assailed the entire landacquisition process on broadly three grounds: a) The MRTP Act formeda complete code for the purpose of town planning and development, andhence, Respondent No. 2 could not resort to the provisions of the MMCAct to circumvent a DP that is approved under the MRTP Act. Instead,it was mandatory to seek permission from Respondent No. 1 foreffectuating minor modifications in the DP under Section 37 of the MRTPAct; b) In arguendo, the procedure under the MMC Act for landacquisition had not been followed. Section 91 of the MMC Act requiredRespondent No. 3 to initiate the process of acquiring land under Section296 for laying down a new road under Section 291. However, in thiscase, the Office of the Chief Engineer had been the authority whichtook the first step which was an incurable defect. Additionally, noauthorization had been granted by Respondent No. 1, as required underSection 91 of the MMC Act; c) Appellants had not been given sufficientopportunity to voice their grievances in respect of Respondent No. 2’splan to build the link road through their land.

15. The Appellants’ Writ Petition was eventually dismissed videthe impugned judgment whereby the High Court declined to quash thevarious resolutions passed by Respondent No. 2, and the notificationand award of compensation under the LAA. Thus, the High Courtaffirmed the need to acquire Appellants’ land for construction of the linkroad in public interest.

16. The Division Bench held: -

i)The acquisition of Appellants’ land and decision to lay anew road through it was taken pursuant to Sections 91,291(a) and 296, of the MMC Act. The MMC Act conferredRespondent No. 2 with the power to acquire land and builda new road which required neither prior permission fromthe State Govt., nor for the road itself to be reflected in theDP;

ii)The MMC Act and MRTP Act are distinct, and the powersgranted to Respondent No. 2 under the former would notbe impliedly repealed by the latter merely because it was asubsequent statute. Rather, they would exist side-by-side A

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1056SUPREME COURT REPORTS

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and supplement each other in the areas where there wasan overlap of powers. Thus, Respondent No. 2 had theoption of either going through the MRTP Act or the MMCAct and it had used its discretion to exercise the latter option; iii)While it was true that the link road was not included in theBDP after its deletion in 1992, this did not prevent RespondentNo. 2 from acting under the MMC Act. The MRTP Actdealt with crafting of development plans at the macro level,while Respondent No. 2 was at liberty to exercise its powersunder the MMC Act to iron out minute details and carryout work that would be in furtherance of such a plan, suchCas the construction of a link road;

iv)Sec. 37 of the MRTP Act which laid out a rigorous processfor making minor adjustments to a DP would not be relevant,as Respondent No. 2 had acted under the MMC Act andnot the MRTP Act to facilitate the acquisition of land andDsetting up of the road;

v)The requirements under Section 91 of the MMC Act hadbeen complied with. Even though the Office of the ChiefEngineer rather than Respondent No. 3 had forwarded theletter to Respondent No. 10 seeking to initiate the landEacquisition proceedings, this was only a minor defect thatwould not invalidate the process;

vi)Respondent No. 1 had acceded to the steps taken byRespondent Nos. 2 & 3 to acquire the Appellants’ land byinitiating the land acquisition proceedings under the LAAFthrough Respondent Nos. 10 & 11, which showed that itwas in agreement with the need for obtaining the propertyfor the link road;

vii)There was a clear and urgent need for building the road toalleviate traffic congestion in the area caused by the lackGof a connector from the Mahakali Caves to the CentralMIDC. Thus, public interest would have to trump the privateinterests of Appellants.

It is in this context that Appellants have approached this Court forthe second time.H

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17. Mr. Shyam Divan & Mr. V. Giri, learned Senior Counsels forthe Appellants, have raised the following contentions while assailing theimpugned 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 ownBinitiative in proposing construction of a road when the roaditself is not reflected in the DP. Respondent No. 1 had alreadymade its opinion on the matter clear by deleting the roadfrom the overall DP through a notification on 12.11.1992,and had then suggested that Respondent No. 2 re-examineCthe issue in its Directive under Section 37 of the MRTPAct, dated 07.06.1993; CD

ii)Section 31 of the MRTP Act provides the entire process bywhich a DP is finalized and sanctioned. The overall schemeunder Section 31 envisages a consultative process with thegeneral public whereby objections and suggestions are invitedand considered. Respondent No. 2 has taken away the rightaccorded under Section 31 to object to aspects of the plan bycircumventing it by way of a resolution under the MMC Act;

iii)The High Court’s ruling permits a subordinate authority, theMunicipal 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 Actand the MMC Act, Respondent No. 2’s usage of provisionsof the latter to do what cannot be done under the former, ismerely a colourable exercise of power; EFG

v)The MRTP Act is a complete code that provides for everyaspect of formulating, modifying, and finalizing a DP. Anyactions taken under either the MCC Act or the LAA, toacquire land and use it for any purpose that is not expresslysanctioned in the DP, are illegal. Reliance is placed onGirnar Traders v. State of Maharashtra & Ors. (“GirnarTraders 2011”)[1]and Manohar Joshi v. State ofMaharashtra & Ors.[2]

1 (2011) 3 SCC 1.

2 (2012) 3 SCC 619.

Avi)Permitting a Municipal Corporation to act outside of a DPwill create a chaotic situation and facilitate unbridled usageof the powers under the relevant municipal corporationstatute. Such discretion cannot be accorded to a municipalcorporation to act outside the contours of the relevant DP; Bvii)Even under the MMC Act, the requirement of RespondentNo. 3 initiating the process under Section 91 has not beenfulfilled. The minimum safeguard provided under Section91 is for the municipal commissioner himself/herself to atleast apply his/her mind to the proposal and then make anapplication to the State Govt. under Section 91. These areCnot minor defects but basic protections under the MMCAct and must be construed strictly. The judgment in GirnarTraders v. State of Maharashtra (“Girnar Traders2007”)[3] is cited in this regard;

viii)Notwithstanding the aforementioned defect, Section 91 ofDthe MMC Act requires the State Govt., upon receipt of anapplication for the acquisition of land, to authorize theinitiation of proceedings under the LAA. No suchauthorization has been granted in this case and the DP doesnot provide for the road in any case.

Eix)Resolution No. 1167 had explicitly noted that the proposedroad seemed to be for the benefit of private individuals,Respondent Nos. 4-9, and was not for any discernible publicinterest.

18. Arguing in support of the impugned judgment, learned CounselFMr. Girish Godbole, appearing for Respondent Nos. 2 & 3, learned SeniorCounsel, Mr. Shekhar Naphade, appearing for Respondent Nos. 6-9,alongside learned Counsel Mr. S.C. Dharmadhikari, appearing forRespondent Nos. 4 & 5, have placed the following submissions:

i)Sanction for construction of the link road was obtained viaGthree resolutions: i) No. 651 on 10.09.1996; ii) ResolutionNo. 39 by the Improvement Committee on 18.08.1998; iii)Resolution No. 536 of 08.12.1998 which was a compositeresolution under Section 126 of the MRTP Act, and Section H3 (2007) 7 SCC 555.

90(1) & (3) of the MMC Act. Mr. Godbole clarifies thatthe third resolution was, in effect, under Section 91 of theMMC Act and the mention of Section 90 is merely atypographical error; ii)In terms of authorization required from Respondent No. 1for carrying out the acquisition process, Sections 4 & 6 ofthe LAA provide that the State Govt. is the party that initiatesthe process of issuing a notification and then declaring thata parcel of land is needed for a public purpose. Hence, thesteps taken subsequently under the LAA demonstrate thatthe State Govt. was ad idem with the municipal corporationon the need to procure Appellants’ land;

iii)Section 91 of the MMC has been complied with. The factthat the Office of the Chief Engineer forwarded theapplication to the State Govt. is inconsequential as the actionis a formality. The Commissioner was part of the MinisterialCommittee where the decision regarding Appellants’ landwas taken and the application was only made after accruingthe approval of the committee, including the Commissioner;

iv)The MMC Act and MRTP Act operate in completelydifferent fields and co-exist simultaneously. If the Statelegislature intended to erode the powers under the MMCAct, it would have included provisions to that effect.

v)Resort to Sections 91, 291(a) and 296 of the MMC Act asthe mode of acquisition was ideal for Appellants as theywould receive compensation via the statutory mechanismunder the LAA. Moreover, the plan for the road, as proposedby Respondent No. 2, does not impact the buildingsconstructed on the land. Hence, no substantial prejudice iscaused to Appellants;

vi)The directive dated 07.06.1993 cannot be classified ascoming under Section 37 of the MRTP Act. The State Govt.merely suggested that Respondent No. 2 reconsider thetechnical and legal aspects of the proposed link road afterwhich no further steps were taken. There was no expressmodification directed to be made, and this was merely partof the process of revisions and consideration of the DP.

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Avii)Appellants’ conduct and the manner in which they had thebuildings on the land constructed in defiance of anundertaking that was given to the state authorities, disentitlesthem to any relief on equitable grounds. Further, theirrepeated representations directly to the State authoritiesand attempts to manipulate the road construction show malaBfide intent;

viii)The link road is in public interest, and such a considerationmust override private interest.

19. Learned senior counsel, Mr. Divan, countered Respondents’Csubmissions in his rejoinder by raising the following points:

i)The Resolution of 08.12.1998 was under Section 90 of theMMC Act which is for acquisition by consent. There wasneither consent for acquisition nor any separate resolutionunder Section 91 of the MMC Act that was passed byDRespondents. Even if the submission by Mr. Godbole thatthis was essentially a resolution under Section 91 is to beaccepted, the subsequent Resolution No. 1167 of 09.03.2001,and letter dated 14.03.2001 by Respondent No. 2, expresslynoted there was no need for a road to be built throughAppellants’ property. Hence, this nullified any purportedEdecision that may have been taken under Section 91 in theresolution dated 08.12.1998.

ii)The argument regarding disentitlement to relief on equitablegrounds is unfounded, since it is the municipal corporationthat has repeatedly changed its stance on the need for theFlink road;

iii)The affidavit submitted by Vyaravali Village DevelopmentAssn. before the High Court in the WP filed by RespondentNos. 6-9, shows that there was a clear application of mindto the issue of constructing the link road. Resolution No.G1167 was the product of these deliberations. Thus, no claimof manipulation and mala fides can be raised againstAppellants.

iv)Having devoted our earnest attention to the submissionsadvanced by both sides, and after perusing the record, weHnow proceed to consider the issues that have been raised.

C. ANALYSIS

C.1. Interplay between the MRTP Act and the MMC Act

20. The primary issue that emerges from the arguments raised bythe parties is with regard to the interaction between the MRTP Act andthe MMC Act. Specifically, the Appellants posit that the procedure underSection 37 of the MRTP Act for amendment of a DP is the sole methodby which construction that is not provided for within the DP cansubsequently be authorized.

21. Section 37 of the MRTP Act (relevant part) sets out thefollowing process:

37. Modification of final Development plan

(1) Where a modification of any part of or any proposal madein, a final Development plan * * *, the Planning Authoritymay, or when so directed by the State Government [shall,within ninety days from the date of such direction, publish anotice] in the Official Gazette [and in such other manner asmay be determined by it] inviting objections and suggestionsfrom any person with respect to the proposed modificationnot later than one month from the date of such notice ; andshall also serve notice on all persons affected by the proposedmodification 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 fromthe date of publication of notice in the Official Gazette. Ifsuch modification proposal is not submitted within the periodstipulated above, the proposal of modification shall be deemedto have lapsed:

Provided that, such lapsing shall not bar the PlanningAuthority from making a fresh proposal.]

[(1A) If the Planning Authority fails to issue the notice asdirected by the State Government, the State Government shallissue the notice, and thereupon the provisions of sub-section(1) shall apply as they apply in relation to a notice to bepublished by a Planning Authority.]

[(1AA)(a) Notwithstanding anything contained in sub-sections

(1), (1A) and (2), where the State Government is satisfied A

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Athat in the public interest it is necessary to carry out urgentlya modification of any part of, or any proposal made in, afinal Development plan of such a nature that it will not changethe character of such Development plan, the State Governmentmay, on its own, publish a notice in the Official Gazette, andin such other manner as may be determined by it, invitingBobjections and suggestions from any person with respect tothe proposed modification not later than one month from thedate of such notice and shall also serve notice on all personsaffected by the proposed modification and the PlanningAuthority.

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(b) The State Government shall, after the specified period,forward a copy of all such objections and suggestions to thePlanning Authority for its say to the Government within aperiod of one month from the receipt of the copies of suchobjections and suggestions from the Government.

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(c) The State Government shall, after giving hearing to theaffected persons and the Planning Authority and after makingsuch inquiry as it may consider necessary and consulting theDirector of Town Planning, by notification in the OfficialGazette, publish the approved modifications with or withoutEchanges, and subject to such conditions as it may deem fit, ormay decide not to carry out such modification. On thepublication of the modification in the Official Gazette, thefinal Development plan shall be deemed to have been modifiedaccordingly.]

22. As opposed to this, Respondents have attempted to make acase that the power vested in the municipal corporation under Sections91, 291(a), and 296 of the MMC Act, are unaffected by Section 37 ofthe MRTP Act. The interpretation of the three provisions comprise thecrux of the present case and they are reproduced below (relevant part):

F

G91. Procedure when immoveable property cannot be acquiredby agreement.

(1) Whenever the Commissioner is unable to acquire anyimmovable property under the last preceding section byagreement [the [State] Government] may, in their discretion,upon the application of the Commissioner, made with the H

DR. ABRAHAM PATANI OF MUMBAI & ANR. v.THE STATE OF MAHARASHTRA & ORS. [SURYA KANT, J,]

approval of [the Improvements Committee] [and subject tothe other provisions of this Act] order proceedings to be takenfor acquiring the same on behalf of the corporation, as ifsuch property were a land needed for a public purpose withinthe meaning of the Land Acquisition Act, 1870.*

(2) The amount of compensation awarded and all othercharges incurred in the acquisition of any such property shall,subject to all other provisions of this Act, be forthwith paid bythe Commissioner and thereupon the said property shall vestin the corporation.

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291. Power to make new public streets

The Commissioner, when authorised by the corporation in thisbehalf may at any time—

(a) lay out and make a new public street; (b) agree with any person for the making of a street for publicuse through the land of such person, either entirely at theexpense of such person or partly at the expense of such personand partly at the expense of the corporation, and that suchstreet shall become, on completion, a public street; [(c) declare any street made under an improvement schemeduly executed in pursuance of the provisions of the City ofBombay Improvement Act, 1898, or the City of BombayImprovement Trust Transfer Act, 1925, to be a public street.]

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296. Power to acquire premises for improvements of publicstreet

(1) The Commissioner may, subject to the provisions of section90, 91 and 92—

(a) acquire any land required for the purpose of opening,widening, extending or otherwise improving any public streetor of making any new public street, and the buildings, if anystanding upon such land; (b) acquire in addition to the said land and the buildings, ifany, standing, thereupon, all such land with the buildings, if A

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any, standing thereupon, as it shall seem expedient for thecorporation to acquire outside of the regular line, or of theintended regular line, of such street;

(c) lease, sell or otherwise dispose of any land or buildingpurchased under clause (b).

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(2) Any conveyance of land or of a building under clause (c)may comprise such conditions as the Commissioner thinksfit, as to the removal of the existing building, the descriptionof new building to be erected, the period within which suchnew building shall be completed and other such matters.

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23. Under the MCC Act, the power to make a new public streetis derived from Section 291. For the purpose of making a new street,Section 296 of the Act empowers the Commissioner to acquire land,subject to fulfilment of the conditions stipulated in Sections 90-92. Forour purposes, Section 91 is the consequential provision since Appellants’Dland could not, evidently, be acquired by agreement and had to be procuredunder the terms of the procedure provided therein.

24. The entire scheme of land acquisition for the purpose of layinga new road line is provided within the contours of Sections 91, 291(a)and 296. There is undoubtedly a certain degree of overlap between theseEprovisions, and Section 37 of the MRTP Act as they deal with procurementof land. However, the latter is relevant in the context of a DP whereasthe MCC Act regulates the manner in which the Mumbai MunicipalCorporation operates. Moreover, merely because both statutes areconcerned with land acquisition, may not necessarily result in conflictbetween them.F

25. Learned Senior Counsels for the Appellants urged that theinterpretation of the provisions of the MRTP Act and MMC Act must besuch that actions under the latter could only be taken if sanction andapproval for them had been obtained under the MRTP Act. While it is truethat the respective provisions in both Statutes deal with the method forGprocuring land in public interest, there is nothing contained within themwhich explicitly or impliedly makes them subject to one another. A barereading indicates that they operate in distinctive fields which may notalways be co-dependent. Appellants’ interpretation amounts to curtailingthe power that Respondent No. 2 would have otherwise been able toexercise under the MMC Act, outside the contours of the MRTP Act.H

26. It is well settled that provisions of one statute should not beconstrued or interpreted in a manner that they render redundant theprovisions in another statute. The Court’s endeavour shall always be toharmoniously construct such provisions so that the legislative intentunderlying both statutes can be fulfilled.

27. In The Chief Inspector of Mines & Ors. v. Lala KaramChand Thapar & Ors.[4]the Court had reconciled a seeming contradictionbetween the Mines Act, 1923, and the General Clauses Act, through aharmonious construction of the provisions in the two Acts:

“13. If the words of s. 31(4) are construed to mean that theregulations became part of the Act to the extent that when theAct is repealed, the regulations also stand repealed, a conflictat once arises between s. 31(4) and the provisions of s. 24 ofthe General Clauses Act. In other words, the Mines Act, 1923,while saying in s. 31(4) that the repeal of the Act will result inthe repeal of the regulations, will be saying, in the provisionsof s. 24 of the General Clauses Act as read into it, that on therepeal of the Act, when the Act is repealed and re-enacted,the regulations will not stand repealed but will continue inforce till superseded by regulations made under the re-enactedAct. To solve this conflict the courts must apply the rule ofharmonious construction… We have to seek therefore someother means of harmonising the two provisions. Thereasonable way of harmonising that obviously suggests itselfis to construe s. 31(4) to mean that the regulations onpublication shall have for some purposes, say, for example,the purpose of deciding the validity of the regulations, thesame effect as if they were part of the Act, but for the purposeof the continuity of existence, they will not be considered partof the Act, so that even though the Act is repealed, theregulations will continue to exist, in accordance with theprovisions of s. 24 of the General Clauses Act. Thisconstruction will give reasonable effect to s. 31(4) of the MinesAct, 1923 and at the same time not frustrate the very salutaryobject of s. 24 of the General Clauses Act. One may pausehere to remember that regulations framed under an Act areof the very greatest importance. Such regulations are framed A

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Afor the successful operation of the Act. Without properregulations, a statute will often be worse than useless. Whenan Act is repealed, but re-enacted, it is almost inevitable thatthere will be some time lag between the re-enacted statutecoming into force, and regulations being framed under there-enacted statute. However efficient the rule makingBauthority may be it is impossible to avoid some hiatus betweenthe coming into force of the re-enacted statute and thesimultaneous repeal of the old Act and the making ofregulations. Often, the time lag would be considerable. Is itconceivable that any legislature, in providing that regulationsCmade under its statute will have effect as if enacted in theAct, could have intended by those words to say that if ever theAct is repealed and re-enacted (as is more than likely tohappen sooner or later), the regulations will have no existencefor the purpose of the re-enacted statute, and thus the re-enacted statute, for some time at least, will be in many respects,Da dead letter. The answer must be in the negative. Whateverthe purpose be which induced the draftsmen to adopt thislegislative form as regards the rules and regulations that theywill have effect “as if enacted in the Act”, it will be strangeindeed if the result of the language used, be that by becomingEpart of the Act, they would stand repealed, when the Act isrepealed. One can be certain that that could not have beenthe intention of the legislature. It is satisfactory that the wordsused do not produce that result. For, if we apply the rule ofharmonious construction, as has been pointed out above, s.31(4) does not stand in the way of the operation of s. 24 of theFGeneral Clauses Act.”

28. The primacy of taking a harmonious construction was affirmedin Anwar Hasan Khan v. Mohd. Shafi[5] as well:

“8. It is settled that for interpreting a particular provision ofan Act, the import and effect of the meaning of the words andphrases used in the statute has to be gathered from the text,the nature of the subject matter and the purpose and intentionof the statute. It is cardinal principle of construction of a statutethat effort should be made in construing its provisions by G

H5 (2001) 8 SCC 540.

avoiding the conflict and adopting a harmonious construction.The statute or rules made thereunder should be read as awhole and one provision should be construed with referenceto the other provision to make the provision consistent withthe object sought to be achieved. The well known principle ofharmonious construction is that effect should be given to allthe provisions and a construction that reduce one of theprovisions to a “dead letter” is not harmonious construction.”

29. When the legislature knowingly allows two statutes to operatein the same space, it is a reasonable presumption that the legislativedesign would have been for both to remain operative without anyoverriding effect, save and except when a contrary intent is explicitlyprovided. In other words, the Court shall steer two statutes away from adirect collision with each other, even if their areas of operation are broadlysimilar.

30. Learned Senior Counsel, Mr. Shyam Divan, has placedsubstantial reliance on decisions of this Court in Girnar Traders 2011and Manohar Joshi to advance the Appellants’ argument. In GirnarTraders 2011 the issue under consideration was whether Section 11A[6]of the LAA could be read into the MRTP Act’s scheme for acquisitionof land. Section 11A of the LAA provided a two-year time period withinwhich an award under Section 11 had to be made to individuals claimingcompensation under the Act. Failure to do so would lead to the entireland acquisition process lapsing.

31. It is in this context that the Constitution Bench of this Courtheld that the MRTP Act is a self-contained code. It elaborated that merereference to certain provisions of the LAA would not result in theimportation of the entire scheme of the said statute unto the MRTP Act.The Court thus held:

6 11A. Period shall be which an award within made. –

The Collector shall make an award under section 11 within a period of two yearsfrom the date of the publication of the declaration and if no award is made within thatperiod, the entire proceeding for the acquisition of the land shall lapse:Provided that in a case where the said declaration has been published before thecommencement of the Land Acquisition (Amendment) Act, 1984 (68 of 1984), theaward shall be made within a period of two years from such commencement.Explanation - In computing the period of two years referred to in this section, theperiod during which any action or proceeding to be taken in pursuance of the saiddeclaration is stayed by an order of a Court shall be excluded.]

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A“84. The MRTP Act besides being a code in itself has onepre- dominant purpose, i.e., planned development. Othermatters are incidental and, therefore, should be construed toachieve that pre- dominant object. All the provisions ofthe Land Acquisition Act cannot be applied to the MRTP Act.The provisions of the MRTP Act have to be implemented inBtheir own field. As far as the provisions relating to preparation,approval and execution of the development plans areconcerned, there is hardly any dependency of the State Act onthe provisions of the Land Acquisition Act. It may be necessary,sometimes, to acquire land which primarily would be for theCpurpose of planned development as contemplated under theMRTP Act. Some of the provisions of the State Act havespecifically referred to some of the provisions of the LandAcquisition Act but for the limited purpose of acquiring land.Thus, the purpose of such reference is, obviously, to take aidof the provisions of the Central Act only for the purpose ofDacquiring a land in accordance with law stated therein ratherthan letting any provision of the Central Act hamper orobstruct the principal object of the State Act, i.e. execution ofthe planned development.”

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E32. Unmistakably, the Constitution Bench’s objective wassafeguarding against the transposition of conditions under the LAA intothe MRTP Act. Allowing this to happen would have made the task ofachieving the object and purpose of the MRTP Act more onerous. Thecrucial factor that weighed with the Court in that instance was that itcould not allow the LAA to “hamper or obstruct” the MRTP Act’sFprimary goals.

33. A similar concern was deliberated upon by this Court inManohar Joshi (Supra). The Court in that case was inter alia dealingwith a conflict that arose between a DP and an earlier Town PlanningScheme under Section 59[7] of the MRTP Act. The DP reserved the area G

7 59. Making of town planning schemes.

[(1)] Subject to the provisions of this Act or any other law for the time being inforce—

(a) a Planning Authority may for the purpose of implementing the proposals in thefinal Development plan 4[or in respect of any land which is likely to be in the course ofdevelopment or which is already built upon], prepare one or more town planningHschemes for the area within its jurisdiction, or any part thereof ;…

in question for the construction of a primary school whereas the townplanning scheme had marked it as a residential zone.

34. While noting the express provision under Section 39[8] that atown planning scheme would be subordinate to, and be suitably modifiedto bring it in congruence with the DP, this Court held:

“84. As noted above, Section 39 specifically directs that thePlanning Authority shall vary the TP Scheme to the extentnecessary by the proposals made in the final developmentplan, and Section 59(1)(a) gives the purpose of the TP schemeviz. that it is for implementing the proposals contained in thefinal development plan. Under Section 31(6) of the Act, adevelopment plan which has came into operation is bindingon the Planning Authority. The Planning Authority cannot actcontrary to the DP plan and grant development permission todefeat the provision of the DP plan. Besides, it cannot beignored that a duty is cast on every Planning Authorityspecifically under Section 42 of the Act to take steps as maybe necessary to carry out the provisions of the plan referredto in Chapter III of the Act, namely, the development plan.”

35. Upon a close examination of these judgments, we fail to seehow they assist the Appellants’ case. In both instances, the concern wasregarding frustration of the DP by either importation of Section 11A ofthe LAA into the scheme of the MRTP Act (Girnar Traders 2011), ordue to a conflict between the DP and the town planning scheme(Manohar Joshi). Neither of these eventualities have arisen in thepresent case.

36. Even apart from that, the principle on which this Courtproceeded in the cases cited above is that external statutes or alternateschemes/plans under the MRTP Act or otherwise, should not be allowedto frustrate the DP or the overall objective of planned development under 8 39. Variation of town planning scheme by Development plan.

Where a final Development plan contains proposals which are in variation, ormodification of those made in a town planning scheme which has been sanctioned bythe State Government before the commencement of this Act, the Planning Authorityshall vary such scheme suitably under section 92 to the extent necessary by the proposalsmade in the final Development plan.

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Athe MRTP Act. As the DP is the primary means of achieving the purposeof the MRTP Act, any violence done to the former would necessarilyaffect the latter. Conversely, if the former is left essentially undisturbedthen it cannot be said that the spirit and scheme of the MRTP Act hasnot been honoured.

B37. 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.The motivation for building the connector is to alleviate traffic congestionin the area caused due to the need for commuters to take a protracteddetour around the boundaries of Appellants’ property. It is only in instanceswhere a requirement of the DP is being abrogated that a conflict arisesCand the observations in Girnar Traders 2011 (Supra) and ManoharJoshi (Supra) become relevant.

38. Moreover, the decision in Manohar Joshi (Supra) contains acrucial distinguishing factor between the town planning scheme soughtto be effectuated in that case, and the proposed link road in the presentDinstance. Under Section 39 of the MRTP Act, the town planning schemeis expressly made subordinate to the DP. No such express provision hasbeen placed in either the MRTP Act or the MMC Act, to curtail thepowers of Respondent Nos. 2 & 3 under Sections 91, 291(a), and 296 ofthe MMC Act.

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39. In fact, the MMC Act under Section 61(m)[9] mandates thatRespondent No. 2 take any lawful measures possible to provide for theconstruction, maintenance, alteration, and improvement of public streets.The wording of this provision is mandatory, in contrast to Section 63[10] ofthe MMC Act which grants discretion to the Municipal Corporation toFmake arrangements for the subjects listed thereunder, if it so chooses.

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9 61. Matters to be provided for by the corporation.

It shall be incumbent on the corporation to make adequate provision, by any meansor measures which it is lawfully competent to them to use or to take, for each of thefollowing matters, namely :—

…

(m) the construction, maintenance, alteration and improvement of public streets,bridges, culverts, causeways and the like 1[and also other measures for ensuing the safeand orderly passage of vehicular and pedestrian traffic on streets];…10 63. Matters which may be provided for by the corporation at their discretion.

The corporation may, in their discretion, provide from time to time, either whollyor partly, for all or any of the following matters, namely :—

…

40. This Court should not, therefore, unduly erode the powersvested in Respondent No. 2 to carry out its statutory duties under Section61. This is especially true in a case where the object and purpose of theMRTP Act is left unaffected by the actions taken by the MunicipalCorporation.

41. In this background, we find significant merit in learned Counsel,Mr. Godbole’s argument, that the MRTP Act and the MMC Act exist inseparate spheres without any preconceived hierarchy. There may beinstances where there is overlap, such as when a DP is formulated for amunicipal area where the municipal corporation also exercises jurisdiction.However, even in such a scenario the two statutes would exist side-by-side and supplement each other.

42. The exception to this, to borrow from Manohar Joshi (Supra),would be where the actions taken by the municipal corporation or anyother external authority “defeat the provision of the DP plan”. Insuch an eventuality the appropriate course of action would be to seek amodification of the DP under the MRTP Act.

43. For these reasons, we reject the contention of the Appellantsthat the only means by which the link road through their property couldhave been constructed was through an amendment to the DP underSection 37 of the MRTP Act. Respondent No. 2 had the option to eitherfollow the procedure under the MRTP Act, or to invoke the parallelprocess provided under Sections 91, 291(a) and 296 of the MMC Act.Respondent No. 2’s recourse to the latter cannot be said to defeat anyprovision of the DP or be contrary to the scheme of the MRTP Act.

44. Having held as such, we also do not find merit in the argumentthat Respondent No. 2’s resort to the MMC Act constitutes a colourableexercise of power. This Court in Sonapur Tea Co. Ltd. v. Must.Mazirunnessa[11] had characterized the colourable exercise of powers as:

“9…The doctrine of colorable legislation really postulates thatlegislation attempts to do indirectly what it cannot do directly.In other words, though the letter of the law is within the limitsof the powers of the Legislature, in substance the law hastransgressed those powersand by doing so it has taken theprecaution of concealing its real purpose under the cover ofapparently legitimate and reasonable provisions…”

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A45. Once we have ascertained that the two legislations in question,the MRTP Act and the MMC Act, exist in separate spheres with onlyincidental overlap, the possibility of a colourable exercise of power byRespondent No. 2 falls away. As elaborated above, there is no direct orindirect bar on the exercise of powers under Sections 91, 291(a), and296 of the MMC Act which are all in furtherance of Respondent No. 2’sBresponsibilities under Section 61. The only exception to this would be inthose cases where a provision of the DP itself is being abrogated.

46. Mr. Divan, learned Senior Counsel for the Appellants, hadalso raised an issue regarding the lack of appropriate safeguards underthe MMC Act as compared to the MRTP Act. He urged that the existenceCof the right to object by interested parties to amendments in a DP underSection 37 of the MRTP Act was further backing for his contention thatthe MRTP Act was a complete code and is meant to control the entirefield in regard to planned development. This, he argued, was in contrastto Section 91 of the MMC Act which contains no such right of objectionDprior to the municipal corporation passing a resolution.

47. In our considered opinion, this does not advance Appellants’case either. Merely because a right to object to a modification of a DPexists under Section 37 of the MRTP Act does not automatically give itan ascendant position in the hierarchy that Appellants seek to createEbetween the MRTP Act and the MMC Act. It is up to the legislature todetermine the amount of discretion that is accorded to the relevantauthorities under each statute.

48. While it is true that this Court has previously read therequirement of giving affected persons an opportunity to be heard intoFstatutes and provisions which did not provide for it, such a right was heldeven in those cases to not be absolute.[12] However, we need not even goso far. A closer reading of the MMC Act and the LAA shows that thereare adequate safeguards available and, in the facts of the case, Appellantswere given ample opportunity to object to the proposed expropriation oftheir land.

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49. When an application is made under Section 91 of the MMCAct, it is not the case that a notice for acquisition is issued immediately.The State Govt. must first satisfy itself that the land sought to be acquired 12 Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors. (1985) 3 SCC 545;HC.B. Gautam v. Union of India & Ors. (1993) 1 SCC 78.

is indeed required for a public purpose. Respondent No. 1 must scrutinizethe application submitted before it and come to the conclusion that theproperty in question necessitates reservation in public interest beforeinitiating the process under the LAA via notification under Section 4.

50. Thereafter, a mechanism for hearing objections is providedunder the LAA. Section 5A of the LAA, as it was at the relevant time,is reproduced below:

5A. Hearing of objections. –

(1) Any person interested in any land which has been notifiedunder section 4, subsection (1), as being needed or likely tobe needed for a public purpose or for a Company may, [withinthirty days from the date of the publication of the notification],object to the acquisition of the land or of any land in the locality,as the case may be.

(2) Every objection under sub-section (1) shall be made to theCollector in writing, and the Collector shall give the objectoran opportunity of being heard [in person or by any personauthorized by him in this behalf] or by pleader and shall,after hearing all such objections and after making such furtherinquiry, if any, as he thinks necessary, [either make a reportin respect of the land which has been notified under section4, sub-section (1), or make different reports in respect ofdifferent parcels of such land, to the appropriate Government,containing his recommendations on the objections, togetherwith the record of the proceedings held by him, for the decisionof that Government]. The decision of the [appropriateGovernment] on the objections shall be final.

(3) For the purpose of this section, a person shall be deemedto be interested in land who would be entitled to claim aninterest in compensation if the land were acquired under thisAct.]

51. In light of this, the claim that adequate safeguards were notavailable under the route provided in Section 91 of the MMC Act cannotbe countenanced. Not only does the State Govt. first evaluate theapplication under Section 91, but Section 5A of the LAA also permitsthe landowners themselves to air their grievances.

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A52. Notice under Section 4(1)[13] of the LAA was issued toAppellants on 24.03.2005 by the Special Land Acquisition Officer(“SLAO”) regarding the proposed acquisition of land for constructingthe link road and setting a deadline of 15.04.2005 for filing objections.Appellants responded on 11.04.2005, opposing the acquisition inter aliaon the grounds that the matter was sub-judice before the High Court inBWP No. 3060 of 2002, and that the order dated 18.10.2002 passed inWP No. 1072 of 2001 had directed that actions would not be takenpursuant to any subsequent resolution by Respondent No. 2 without leavebeing granted by the High Court. Their objections stated that:

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10. Our clients submit that for the reasons mentioned in WritCPetition No.3060 of 2002 filed by our clients, the proposedacquisition of land out of our clients’ property bearing CTSNos.23, 24 and 26 of Mulgaon is not for any public purposeand the same is not in accordance with law. No portion ofour clients’ properties bearing CTS Nos.23, 24 and 26 ofDMulgaon is or is likely to be needed for construction of anypublic road. Proposed acquisition is at the instance of andfor serving the private purpose of Developers of propertieslying to East of our clients’ properties and is malafide and incolourable exercise of powers under the Land AcquisitionAct, 1894 and Mumbai Municipal Corporation Act, 1888.EConstruction of a private road through the property of ourclients is bound to destroy our clients’ property and causeirreparable damage to our clients’ property, without servingany public purpose.

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12. In the circumstances, our clients object to the proposedacquisition on the ground that the same is in willfuldisobedience and breach of Order dated 18th October, 2002

13 4. Publication of preliminary notification and power of officers thereupon. –G(1) Whenever it appears to the [appropriate Government] the land in any locality[is needed or] is likely to be needed for any public purpose [or for a company], anotification to that effect shall be published in the Official Gazette [and in two dailynewspapers circulating in that locality of which at least one shall be in the regionallanguage], and the Collector shall cause public notice of the substance of such notificationto be given at convenient places in the said locality [(the last of the dates of suchpublication and the giving of such public notice , being hereinafter referred to as the dateHof the publication of the notification)].

passed by the Bombay High court in Writ Petition No. l072 of2001 and amounts to interference with the proceedings inWrit Petition No.3060 of 2002 filed by our clients and pendingbefore the Bombay High Court and contempt of the BombayHigh Court as also on the ground that the same is not underauthority of Appropriate Government and the ground that thesame is malafide and in colourable exercise of powers andnot in public interest, but merely to favour and confer largesseon Developers of property lying to the East of the property ofour clients, by seeking to destroy the property of our clientsand other grounds.

53. It appears from the record that Appellants sent several lettersto this effect over the following months demanding that the acquisitionprocess cease on the aforementioned grounds stated in their letter of11.04.2005. Appellants had eventually filed a contempt petition againstRespondent Nos. 2, 3 and 10, alleging violation of the order of 18.10.2002.This contempt petition was dismissed by the High Court on 18.08.2006.

54. Indeed, the award of compensation under Section 11 of theLAA[14] passed on 26.11.2007 recorded at several instances that multiplehearings were fixed and sufficient opportunity had been given to interestedparties to be heard. In terms of the inquiry under Section 5 of the LAA,the award noted:

14 11. Enquiry and award by Collector. –

[(1)] On the day so fixed, or on any other day to which the enquiry has beenadjourned, the Collector shall proceed to enquire into the objection (if any) which anyperson interested has stated pursuant to a notice given under section 9 to themeasurements made under section 8, and into the value of the land [at the date of thepublication of the notification under section 4, sub-section (1)], and into the respectiveinterests of the persons claiming the compensation and shall make an award under hishand of-

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land; and

(iii) the apportionment of the said compensation among all the persons known orbelieved to be interested in the land, or whom, or of whose claims, he has information,whether or not they have respectively appeared before him :

[Provided that no award shall be made by the Collector under this sub-sectionwithout the previous approval of the appropriate Government or of such officer as theappropriate Government may authorize in this behalf:

Provided further that it shall be competent for the appropriate Government todirect that the Collector may make such award without such approval in such class ofcases as the appropriate Government may specify in this behalf.

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AAfter going through the objection raised by M/S Soloman &Co. Adv. Mentioned above and legal advice dt. 10/5/05 revivedfrom M.C.G.M.: the S.L.A.O. came to the conclusion that heneed not to wait till the decision of the Hon. High Court,Mumbai in writ. Petition No.3060/02 filed by the interestedparties as asked for in the objection mentioned above andBS.L.A.O. decided to [proceed] with proceedings under sec. 6of L.A. Act. The detailed report in form ‘D’ as required undersec. 5A of L.A. Act and draft notification under sec. 6 of L.A.Act have been submitted to the Addl. Commissioner KonkanDivision through the Addl. Collector M.S.D. on 16/6/05 forCthe approval and publication of notification under sec. 6 inGovt Gazette and newspaper etc.

55. The award then goes on to note that no documentation hadbeen submitted by any of the interested parties showing title/rights over theland and no claims for compensation had been filed under the LAA either:

DE. EVIDENCE IN SUPPORT OF CLAIM BY THE LANDOWNERS

Nobody from owners or interested persons has filled their claimsof compensation nor they have produced any documentaryevidence of ownership of land under acquisition. Sufficienttimes were given them by fixing hearing from time to time andEheard them. Finally letters dt. 12/5/06, 13/7/06 and 20/3/07were issued to them asking to file their claims of compensationand documents of ownership. However, nobody came forwardto file their claims of compensation or claims of ownership.Only one Shri Abraham Pattani through his advocate, filedFevery time his objection for acquisition of said lands andtried to stay acquisition proceedings.

56. What emerges from this sequence of events is that Appellantsappear to have been given sufficient opportunity to be heard and fortheir objections to be considered. However, the Appellants remainedGpreoccupied with attempting to halt the acquisition proceedings on theground that the matter was sub-judice before the High Court and, thus,no further steps under the LAA could be taken. After scrutinizing thelegal situation, the SLAO dismissed their objections and continued toperform the various steps under the LAA. There was no stay grantedduring this time, and Appellants’ contempt petition had been dismissed,Has mentioned above.

57. The Appellants seemingly did not submit any documentationin support of their claim of title and neither did they seek quantificationof compensation they may have been entitled to under the LAA. As aresult, they cannot now claim that there was no opportunity given tothem to voice their concerns with regard to the acquisition process. Thedecision by the Appellants to stick to their position in terms of thenotification and award being non-est due to the pendency of their WP atthe High Court cannot entitle them to now argue that they were treatedunfairly in the proceedings under the LAA.

58. This also fortifies our earlier observation regarding the co-existence of the MMC Act alongside the MRTP Act. The contentionsraised by the Appellants have failed to persuade us and we see no reasonto enact a hierarchy between the two Statutes. We affirm, once again,the position articulated by Respondents that it was open to RespondentNo. 2 to act under the MMC Act to acquire Appellants’ land for thepublic purpose of building the link road.

C.2. Compliance with the procedure under the MMC Act

59. Having held that Respondent No. 2 was entitled to exerciseits powers under the MMC Act, it is now incumbent on us to examinewhether the procedure under the Statute was properly followed. Werefer to our earlier observations on the scheme of procurement underthe MMC Act from a combined reading of Sections 91, 291(a), and 296contained therein.

60. To begin with, it is necessary to recap the sequence of eventsthat led to the land acquisition proceedings. Learned Counsel for theMunicipal Corporation and the Municipal Commissioner, Mr. Godbole,has highlighted the initial trio of resolutions, Nos. 651, 39 & 536, byRespondent No. 2 that set the ball rolling in terms of land acquisition.Resolution No. 536 was a composite resolution under Section 126 of theMRTP Act and Section 90 of the MMC Act. According to him, this wasin effect a resolution under Section 91 as the reference to Section 90was merely a typographical error due to Section 90[15], acquisition via 15 90. Acquisition of immovable property by agreement.

(1) Wherever it is provided by this Act that the Commissioner may acquire orwhenever it is necessary or expedient for any purpose of this Act that the Commissionershall acquire, any immovable property, such property may be acquired by theCommissioner on behalf of the corporation by agreement 6[subject to the provisions ofsub-section (3)].

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Aconsent, being the first option under the MMC Act. When that failed,the natural next step would be the second option under Section 91 of theMMC Act.

61. Subsequently the Office of the Chief Engineer had made anapplication to Respondent No. 1 on 05.02.1999 for procuring theBAppellants’ land. The link road proposal was then shelved via ResolutionNo. 1167, before being revived once again by Resolution No. 1117 dated28.10.2002.

62. Following the renewal of the link road proposal, the landacquisition proceedings were recommenced under Section 91 and theCnecessary steps under the LAA were taken on the basis of the sameapplication of 05.02.1999 that had been submitted by the Office of theChief Engineer. This finally culminated in the passing of the award ofcompensation under Section 11 of the LAA on 26.11.2007.

63. In this backdrop, learned Senior Counsels for the AppellantsDhave argued that there has been non-compliance with two requirementsunder Section 91 of the MCC Act: a) The application for acquisition ofland was forwarded from the Office of the Chief Engineer (DevelopmentPlan) and not the Commissioner; b) There was no authorization grantedor order passed by Respondent No. 1 to proceed with such an acquisition.

E64. Adverting to the first submission, we acknowledge theunambiguous language of Section 91 which contemplates an applicationbeing submitted by the Commissioner, Respondent No. 3. However, whendealing with such matters of procedure the old adage of procedural lawsbeing the handmaid of justice must be kept in mind. As has beenexhaustively and extensively reiterated by this Court in the past,Fprocedural rules must not be allowed to defeat the basic purpose of astatute or hamper the pursuit of justice unless violation of the procedurewould itself amount to grave injustice.

65. In Sangram Singh v. Election Tribunal, Kotah & Anr.[16]this Court in the context of procedural rules held:G“16…It is procedure, something designed to facilitate justiceand further its ends: not a penal enactment for punishmentand penalties; not a thing designed to trip people up. Tootechnical a construction of sections that leaves no room for

H16 (1955) 2 SCR 1.

reasonable elasticity of interpretation should therefore beguarded against (provided always that justice is done to bothsides) lest the very means designed for the furtherance ofjustice be used to frustrate it.”

66. Similarly, in Ghanshyam Dass v. Dominion of India[17]theethos behind “adjective law” was elaborated upon while dealing withissuance of notice under Section 80 of the Civil Procedure Code:

“12. In the ultimate analysis, the question as to whether anotice under Section 80 of the Code is valid or not is a questionof judicial construction. The Privy Council and this Court haveapplied the rule of strict compliance in dealing with thequestion of identity of the person who issues the notice withthe person who brings the suit. This Court has however adoptedthe rule of substantial compliance in dealing with therequirement that there must be identity between the cause ofaction and the reliefs claimed in the notice as well as in theplaint. As already stated, the Court has held that notice underthis section should be held to be sufficient if it substantiallyfulfils its object of informing the parties concerned of the natureof the suit to be filed. On this principle, it has been held thatthough the terms of the section have to be strictly compliedwith, that does not mean that the notice should be scrutinizedin a pedantic manner divorced from common sense. The pointto be considered is whether the notice gives sufficientinformation as to the nature of the claim such as would therecipient to avert the litigation.”

67. In the same vein, Sugandhi v. P. Rajkumar[18]promoted anapproach that sought to achieve substantial justice when confronted withbreaches of procedural law, especially when the other party did not sufferany significant prejudice. This Court opined:

“9.It is often said that procedure is the handmaid of justice.Procedural and technical hurdles shall not be allowed to come 17 (1984) 3 SCC 46.

18 (2020) 10 SCC 706.

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Ain the way of the court while doing substantial justice. If theprocedural violation does not seriously cause prejudice to theadversary party, courts must lean towards doing substantialjustice rather than relying upon procedural and technicalviolation. We should not forget the fact that litigation is nothingbut a journey towards truth which is the foundation of justiceBand the court is required to take appropriate steps to thrashout the underlying truth in every dispute.”

68. A Constitution Bench of this Court in State of U.P. & Ors. v.CBabu Ram Upadhya[19], while laying down the test for determining ifthe legislature intended for a provision to be directory or mandatory innature, held as follows:

“29…For ascertaining the real intention of the Legislature,the Court may consider, inter alia, the nature and the designDof the statute, and the consequences which would follow fromconstruing it the one way or the other, the impact of otherprovisions whereby thenecessity of complying with theprovisions in question is avoided, the circumstance, namely,-that the statute provides for a contingency of the nonEcompliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by somepenalty, the serious or trivial consequences that flow therefrom,and, above all, whether the object of the legislation will bedefeated or furthered.”

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69. It is with these time tested principles in mind that we mustnow analyse Appellants’ contentions and consider whether therequirement of the Commissioner making the application under Section91 is directory or mandatory in nature. While doing so, we avert to learnedGCounsel Mr. Godbole’s argument that the Commissioner is, at all times,involved in the decision making process and is an integral member of theMinisterial Committee that signs off on initiating a land acquisition processunder the MMC Act.

70. Thus, a common sense approach would lead to the conclusionthat rigid adherence to the notion that the Commissioner can be the onlyofficial to actually send an application under Section 91 may not bewarranted in all scenarios. The construction of the provision that hasbeen suggested by the Appellants would prevent the kind of “reasonableelasticity of interpretation” that was noted in Sangram Singh (Supra)to be vital when construing a statute.

71. Further, we are unable to ascertain what prejudice has beencaused to the Appellants merely because it was the Office of the ChiefEngineer which officially forwarded the application to the prescribedauthority under Section 91. The consequence in both scenarios, whetherthe Commissioner or some other official acts under the provision, wouldbe that land acquisition proceedings are commenced under the LAA.None of the Appellants’ rights are abrogated by the Chief Engineermaking the application under Section 91. This is further accentuated bythe fact that, in any case, Respondent No. 3 was part of the decision-making process.

72. Appellants have placed reliance on Girnar Traders 2007(Supra) to contend that the requirement of Respondent No. 3 being thespecific official to make the application cannot be deviated from. TheCourt in that instance was dealing with lapsing of a reservation of landunder the MRTP Act in terms of Section 127.[20] The area in question hadbeen marked as part of a DP but no steps had been taken to acquire itfor a full decade thereafter. The Commissioner was the designated 20 127. Lapsing of reservations.

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

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Aauthority authorized to act under Section 126 to initiate the steps for landacquisition. While analysing Sections 126 & 127 of the MRTP Act[21], themajority opined:

“54. When we conjointly read Sections 126 and 127 of theMRTP Act, it is apparent that the legislative intent is toBexpeditiously acquire the land reserved under the TownPlanning Scheme and, therefore, various periods have beenprescribed for acquisition of the owner’s property. The intentand purpose of the provisions of Sections 126 and 127 hasbeen well explained in Municipal Corporation of GreaterBombay Case (supra).If the acquisition is left for a timeCimmemorial in the hands of the concerned authority by simplymaking an application to the State Government for acquiringsuch land under the LA Act, 1894, then the authority willsimply move such an application and if no such notificationis issued by the State Government for one year of theDpublication of the draft regional plan under Section 126(2)read with Section 6 of the LA Act, wait for the notification tobe issued by the State Government by exercising suo motupower under Sub-section (4) of Section 126; and till then nodeclaration could be made under Section 127 as regards E21 126. Acquisition of land required for public purposes specified in plans.

(1) Where after the publication of a draft Regional plan, a Development or anyother plan or town planning scheme, any land is required or reserved for any of thepublic purposes specified in any plan or scheme under this Act at any time, thePlanning Authority, Development Authority, or as the case may be, 1[any AppropriateAuthority may, except as otherwise provided in section 113A] 2[acquire the land,—(a) by agreement by paying an amount agreed to, orF

(b) in lieu of any such amount, by granting the land-owner or the lessee, subject,however, to the lessee paying the lessor or depositing with the Planning Authority,Development Authority or Appropriate Authority, as the case may be, for payment tothe lessor, an amount equivalent to the value of the lessor’s interest to be determined byany of the said Authorities concerned on the basis of the principles laid down in theLand Acquisition Act, 1894, Floor Space Index (FSI) or Transferable DevelopmentGRights (TDR) against the area of land surrendered free of cost and free from allencumbrances, and also further additional Floor Space Index or Transferable DevelopmentRights against the development or construction of the amenity on the surrendered landat his cost, as the Final Development Control Regulations prepared in this behalfprovide, or

(c) by making an application to the State Government for acquiring such land underthe Land Acquisition Act, 1894,H…

lapsing of reservation and contemplated declaration of landbeing released and available for the land owner for hisutilization as permitted under Section 127. Section 127permitted inaction on the part of the acquisition authoritiesfor a period of 10 years for de-reservation of the land. Notonly that, it gives a further time for either to acquire the landor to take steps for acquisition of the land within a period ofsix months from the date of service of notice by the land ownerfor de-reservation. The steps towards commencement of theacquisition in such a situation would necessarily be the stepsfor acquisition and not a step which may not result intoacquisition and merely for the purpose of seeking time sothat Section 127 does not come into operation.

55. Providing the period of six months after the service ofnotice clearly indicates the intention of the legislature of anurgency where nothing has been done in regard to the landreserved under the plan for a period of 10 years and the owneris deprived of the utilization of his land as per the userpermissible under the plan. When mandate is given in aSection requiring compliance within a particular period, thestrict compliance is required thereof as introduction of thisSection is with legislative intent to balance the power of the‘’”State of eminent domain…

73. It was in this context that the majority noted that the ExecutiveEngineer, who was not authorized to act as the appropriate authorityunder Section 126, could not have taken on the mantle of making anapplication for initiating proceedings under the LAA. What weighed withthe court was the legislative intent of Sections 126 and 127 which was to“balance the power of the State of ‘eminent domain’”. Theconsequence of not acting in an expeditious manner under Sections 126& 127 was the automatic de-reservation of land that was meant to bepart of the DP.

74. Thus, there are two important distinguishing factors betweenGirnar Traders 2007 (Supra) and our scenario. The first is the mandateand purpose of Sections 126 & 127 which are meant to ensure the DP isacted upon swiftly and efficiently. The prejudice caused to a private A

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Acitizen if his land is reserved for a public purpose under the MRTP Actbut then not acquired for years afterwards was eloquently elaboratedupon by the majority. The individual would be deprived of the usage ofhis land due to the reservation, while not receiving compensation for itunder the LAA. It was to safeguard against such an eventuality thatstrict adherence to Sections 126 & 127 of the MRTP Act was necessary.BThis rationale cannot be transplanted to Section 91 of the MMC Act.

75. The second is the lack of any penal provision or consequenceattached to a failure to follow the exact procedure mentioned underSection 91. As observed in Babu Ram Upadhya (Supra) the existenceof a penal mechanism attached to non-compliance is one of the meansCby which the nature of a provision can be ascertained. Under the MRTPAct the consequence of non-compliance with the designated procedureunder Section 126 is the eventual de-reservation of the land in questionunder Section 127.

76. In this context, the Doctrine of Purposive Interpretation isDalso of assistance. This Court in Reserve Bank of India v. PeerlessGeneral Finance and Investment Co. Ltd. & Anr.[22]referred to theneed for interpretation of a statute to be based on the context and purposebehind it, in the following terms:

“33. Interpretation must depend on the text and the context.EThey are the bases of interpretation. One may well say if thetext is the texture, context is what gives the colour. Neithercan be ignored. Both are important. That interpretation isbest which makes the textual interpretation match thecontextual. A statute is best interpreted when we know why itFwas enacted. With this knowledge, the statute must be read,first as a whole and then Section by section, Clause by clause,phrase by phrase and word by word. If a statute is looked at,in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections,clauses, phrases and words may take colour and appearGdifferent than when the statute is looked at without the glassesprovided by the context. With these glasses we must look atthe Act as a whole and discover what each section, eachclause, each phrase and each word is meant and designed to DR. ABRAHAM PATANI OF MUMBAI & ANR. v.THE STATE OF MAHARASHTRA & ORS. [SURYA KANT, J,]

say as to fit into the scheme of the entire Act. No part of astatute and no word of a statute can be construed in isolation.Statutes have to be construed so that every word has a placeand everything is in its place.”

77. Along similar lines, S. Gopal Reddy v. State of A.P.[23]expounded on the approach to be taken while interpreting statutes andheld:

“12. It is a well-known Rule of interpretation of statutes thatthe text and the context of the entire Act must be looked intowhile interpreting any of the expressions used in a statute.The courts must look to the object which the statute seeks toachieve while interpreting any of the provisions of the Act. Apurposive approach for interpreting the Act is necessary. Weare unable to persuade ourselves to agree with Mr. Rao thatit is only the property or valuable security given at the time ofmarriage which would bring the same within the definition of‘dowry’ punishable under the Act, as such an interpretationwould be defeating the very object for which the Act wasenacted. Keeping in view the object of the Act, “demand ofdowry” as a consideration for a proposed marriage wouldalso come within the meaning of the expression dowry underthe Act.”

78. It appears to us that Section 91 imposes a statutory responsibilityon Respondent No. 3, the Commissioner, to initiate the land acquisitionprocess. The object behind the expression “…upon the application ofthe Commissioner, made with the approval of the…” unequivocallysuggests that the Commissioner must apply his/her mind and take aconscious decision in favour of the acquisition proceedings being initiatedunder the LAA. Once the Commissioner is party to the MinisterialCommittee and a determination is made by the Committee that a newpublic street must be laid and land must be acquired for this purposeunder Section 91 of the MCC Act read with the LAA, it is no longerconsequential which authority conveys this decision. The conclusion thatthe land is required for the construction of the road cannot be invalidatedon this ground.

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A79. To the extent that Respondent No. 3 is required to forwardthe application under Section 91, we see no reason to consider this amandatory condition. Nevertheless, even for such directory provisionssubstantial compliance is necessary. In Sharif-ud-din v. Abdul GaniLone[24]the level of compliance with directory rules, as well as thedistinction between mandatory and directory requirements under a statute,Bwas detailed and laid down in the following terms:

“9.The difference between a mandatory rule and a directoryrule is that while the former must be strictly observed, in thecase of the latter, substantial compliance may be sufficient toachieve the object regarding which the rule is enacted. CertainCbroad propositions which can be deduced from severaldecisions of courts regarding the rules of construction thatshould be followed in determining whether a provision of lawis directory or mandatory may be summarized thus: The factthat the statute uses the word ‘shall’ while laying down a dutyDis not conclusive on the question whether it is a mandatory ordirectory provision. In order to find out the true character ofthe legislation, the Court has to ascertain the object which theprovision of law in question is to sub-serve and its design andthe context in which it is enacted. If the object of a law is to bedefeated by non-compliance with it, it has to be regarded asEmandatory.”

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80. We are inclined to hold and affirm that there has been substantialcompliance with Section 91 to the extent that it achieves the objectivebehind the provision. Learned Counsel, Mr. Godbole, has already pointedFout the practicalities of the decision making process in Respondent No.2. Undoubtedly, Respondent No. 3 would have been a participant in thedeliberations on whether to initiate the process under Section 91 forprocurement of land. The final application was made only after gainingapproval from him and the rest of the Committee.

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81. Appellants have urged that the need for Respondent No. 3 topersonally take the first step under Section 91 is part of the minimalsafeguards that exist under the MMC Act and must be adhered to. Wefeel that the purpose behind the provision of ensuring that the highest- H24 (1980) 1 SCC 403.

ranking officer in the municipal corporation is privy and amenable to theacquisition proceedings is achieved by his participation and sign off onthe action, regardless of whether he personally sends the application.

82. In this respect, the holding of a Division Bench of the BombayHigh Court in Harakchand Misirimal Solanki & Ors. v. The Collector& Ors.[25]becomes relevant. The High Court was dealing with theBombay Provincial Municipal Corporation Act, 1949, and efforts madeby the Pune Municipal Corporation to set up a “Forest Garden”. One ofthe several alleged defects in the process which arose for considerationbefore the High Court pertained to the fact that the AssistantCommissioner, instead of the Commissioner, had made the applicationfor commencing proceedings under the LAA. It was urged that theCommissioner was the designated authority under Section 78 of the Act.[26]Rejecting this argument, the Division Bench observed:

“24. We do not find any substance in the contention of thepetitioner that it is not the Assistant Municipal Commissionerbut the Commissioner himself who should have applied forinitiation of proceedings under the said Act…Therefore, evenif contention of the petitioner is accepted that the actualapplication sent to the Collector seeking to initiate proceedingsunder the said Act for compulsory acquisition of the lands inissue was signed and sent by the Assistant MunicipalCommissioner and not by the Commissioner of the saidCorporation himself, we do not find that this will constitute agross illegality in the initiation of the acquisition proceedingin issue. In our view, once the proposal is shown to have beenaccepted by the Commissioner, processed by the Commissionerand sent to the Collector in terms of the directions of the 25 2008 SCC OnLine Bom 1067.

26 78. Procedure when immovable property cannot be acquired by agreement(1) Whenever the Commissioner is unable under section 77 to acquire by agreementany immovable property or any easement affecting any immovable property vested inthe Corporation or whenever any immovable property or any easement affecting anyimmovable property vested in the Corporation is required for the purposes of this Act,the1 [State] Government may in its discretion, upon the application of the Commissioner,made with the approval of the Standing Committee and subject to the other provisionsof this Act, order proceedings to be taken for acquiring the same on behalf of theCorporation, as if such property or easement were land needed for a public purposewithin the meaning of the Land Acquisition Act, 1894[I of 1804].

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ACommissioner, only because the same was formally signednot by the Commissioner himself but by the Assistant MunicipalCommissioner, in law, would not be so vital to warrant vitiatingof the entire acquisition proceeding. In our view, if it isdemonstrated that substantial compliance is done with thestatutory requirement of Section 78 of the said Act, no faultBcan be found with these acquisition proceedings, on this groundas claimed by the petitioners.”

83. The High Court, thus, rebutted this particular contention raisedby the Petitioners. However, the Petitioners’ Writ Petitions were allowedCoverall due to certain other discrepancies that were discovered in thesetting up of the Forest Garden. The Pune Municipal Corporation filedan SLP against this judgment assailing the High Court’s final conclusionwhich is unrelated to the specific issue we are concerned with in thepresent case. Notwithstanding the fact that the matter remains sub-Djudice on other facets of the case, we find some prima facie merit in thereasoning by the Bombay High Court for repelling the argument thatonly the Commissioner may submit the application for reservation andacquisition of land under the LAA.

84. As submitted by learned Counsel, Mr. Godbole, RespondentENo. 3’s seal of approval was granted for the actions taken under Section91 of the MMC Act. We, therefore, hold that once the proposal hasbeen approved by the Commissioner, the lack of a formal signature fromhim on the eventual application is not a serious defect and cannot annulthe entire process that followed.

F85. Based on the discussion above, we are satisfied that Section91 of the MMC Act has been substantially complied with in this case.We now turn our attention to the second contention by the Appellants onthe issue of compliance with procedural requirements, which is thepurported absence of an order by the State Govt. for initiating landacquisition proceedings under the LAA.G

86. To ascertain the veracity of the Appellants’ claim we mayrefer once again to the final award of compensation passed on 26.11.2007.Under the sub-heading “Introduction” under the main heading “Reasonsfor the Award”, it is noted that the Office of the Chief Engineer sent theapplication to the Collector 05.02.1999 for procuring the land in question.HFollowing the application, it was recorded that:

“The Addl. collector M.S.D. along with his letter dt. 21/7/99sent the said proposal to this office directing this office toprocess acquisition proceeding.”

87. We are, therefore, unable to spot the infirmity in the actions ofRespondent authorities. The Additional Collector, acting on behalf ofRespondent No. 1, forwarded the proposal from Respondent No. 2 tothe SLAO for further processing and commencement of the procedureunder the LAA. There is no indication in Section 91 of the MMC Actthat the order of the State Govt. to carry out the land acquisition issupposed to be in a specific form. Keeping this in mind, we have nohesitation in taking a pragmatic and practical approach to this requirement.It is enough that the relevant office in Respondent No. 1 accepted theapplication from Respondent No. 2 and conveyed it to the authoritiesempowered to act under the LAA. The direction from the AdditionalCollector for the SLAO to process the request from Respondent No. 2would be sufficient compliance with Section 91 of the MMC Act.

88. In any case, Respondent Nos. 10 & 11, in performing thesteps under the LAA to procure the land, acted for and on behalf ofRespondent No. 1. Thus, it is incontrovertible that Respondent No. 1was fully on board with the initiative to acquire Appellants’ land forconstructing the link road. The fact that all the steps under the LAAwere carried out is sufficient evidence that there has been adherence tothe spirit and scheme of Section 91 regarding Respondent No. 1 beinginvolved and sanctioning the actions of Respondent Nos. 10 & 11.

89. In summation, we conclude that the objections by the Appellantson the grounds of non-adherence to procedural requirements underSection 91 of the MMC Act are without merit. There has been substantialcompliance with the provision and the objective underlying it has beenhonoured.

C.3. Public Interest v. Private Interest

90. It is important for us to take stock of the nature of the presentdispute. The Appellants are private citizens who have valid title andownership over the land in question. Without doubt, their personal andprivate rights are of great importance. In a democratic society governedby the rule of law, the rights of an individual carry immense importanceand are the foundational blocks on which our legal, social, and politicalmilieu thrives. Under no circumstances should the rights of individual ABC

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Acitizens be trodden upon arbitrarily and any curtailment of them must bescrutinized with utmost care.

91. At the same time, we must not lose sight of the fact that inseveral situations, the needs of the many must outweigh that of the few.We say so not with any fervour nor as a mantra, but as a solemnBacknowledgment of the realities of modern life. The question of whatconstitutes “public interest” has been contemplated upon multiple timesand the history of this Court is full of musings by different benches onthe exact contours of this phrase in the context of various situations andstatutes.

C92. In Manimegalai v. Special Tehsildar,[27] it was surmised that:

“14. Similarly, public purpose is not capable of precisedefinition. Each case has to be considered in the light of thepurpose for which acquisition is sought for. It is to serve thegeneral interest of the community as opposed to the particularDinterest of the individual. Public purpose broadly speakingwould include the purpose in which the general interest ofthe society as opposed to the particular interest of theindividual is directly and vitally concerned. Generally, theexecutive would be the best judge to determine whether or notthe impugned purpose is a public purpose. Yet it is not beyondEthe purview of judicial scrutiny. The interest of a Section ofthe society may be public purpose when it is benefitted by theacquisition. The acquisition in question must indicate that itwas towards the welfare of the people and not to benefit aprivate individual or group of individuals joined collectively.Therefore, acquisition for anything which is not for a publicFpurpose cannot be done compulsorily.”

93. In B.P. Sharma v. Union of India & Ors.[28]the nebulousnature of phrases such as “public interest” or “in the interest of thegeneral public” was commented upon, with the Court stating:

G“15. …The phrase “in the interest of the general public” hascome to be considered in several decisions and it has beenheld that it would comprise within its ambit interests like publichealth and morals, economic stability, stability of the country, 27 (2018) 13 SCC 491.H28 (2003) 7 SCC 309.

equitable distribution of essential commodities at fair pricesfor maintenance of purity in public life, prevention of fraudand similar considerations…”

94. This point was emphasized in Bihar Public ServiceCommission v. Saiyed Hussain Abbas Rizwi & Anr.[29]as well, whichheld that no strict definition for “public interest” existed:

“22. The expression “public interest” has to be understood inits true connotation so as to give complete meaning to therelevant provisions of the Act. The expression “public interest”must be viewed in its strict sense with all its exceptions so asto justify denial of a statutory exemption in terms of the Act.In its common parlance, the expression “public interest”, like“public purpose”, is not capable of any precise definition. Itdoes not have a rigid meaning, is elastic and takes its colourfrom the statute in which it occurs, the concept varying withtime and state of society and its needs. It also means the generalwelfare of the public that warrants recognition and protection;something in which the public as a whole has a stake.”

95. It is unnecessary to belabour the point. The proposition issimply that the notion of public interest will necessarily reflect thespecificities of the situation at hand. In the present case, the public interestwhich has been emphasized upon by Respondents is the urgent need forthe creation of a connecting road through the Appellants’ property. Theneed stems from the traffic congestion caused on the route from theMahakali Caves to the Central MIDC. The lack of a direct linkagerequires detours to be taken that significantly increase commuting timeand cause inconvenience to the general public.

96. When the public interest is so clearly articulated and is an urgentand pressing exigency, private interests must give way to the extentrequired. This Court has acknowledged this before, such as in RamililaMaidan Incident v. Home Secretary, Union of India & Ors.[30]:

“119. The right to freedom in a democracy has to be exercisedin terms of Article 19(1)(a) subject to public order. Public orderand public tranquillity is a function of the State which duty isdischarged by the State in the larger public interest. The 29 (2012) 13 SCC 61.

30 (2012) 5 SCC 1.

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1092SUPREME COURT REPORTS

Aprivate right is to be waived against public interest.The actionof the State and the Police was in conformity with law. As alarge number of persons were to assemble on the morning of5th June, 2011 and considering the other attendant circumstancesseen in light of the inputs received from the intelligence agencies,the permission was revoked and the persons attending theBcamp at Ramlila Maidan were dispersed.”

97. In K.T. Plantation Pvt. Ltd. & Ors. v. State of Karnataka,[31]the origins of “Eminent Domain” were traced and the ethos behindCacquisition of land by the government for public good was discussed.The Court elaborated on this in the following terms:

“134. Hugo Grotius is credited with the invention of the term“eminent domain” (jus or dominium eminens) which impliesthat public rights always overlap with private rights to property,Dand in the case of public utility, public rights take precedence.Grotius sets two conditions on the exercise of the power ofeminent domain: the first requisite is public advantage andthen compensation from the public funds be made, if possible,to the one who has lost his right. Application of the aboveprinciple varies from countries to countries. Germany,EAmerica and Australian Constitutions bar uncompensatedtakings. Canada’s constitution, however, does not contain theequivalent of the taking clause, and eminent domain is solelya matter of statute law, the same is the situation in UnitedKingdom which does not have a written constitution as alsoFnow in India after the 44th Constitutional Amendment.”

98. With these considerations in mind, we deem the present caseto be an appropriate instance where public interest must haveparamountcy over private interest. We emphasize once again beforeGparting that the rights of the individual must only be watered down whenthe necessary circumstances demanding such a drastic measure exist.

99. Learned Counsel, Mr. Godbole, has candidly explained to usthat the plan for the road through the Appellants’ property is mapped in H31 (2011) 9 SCC 1.

such a way that it will not disturb the buildings that have been constructedon it. Learned Senior Counsel, Mr. Divan, has fairly admitted that this isindeed the case. Given this, we consider that a suitable middle groundhas been arrived at which is practical and optimally balances the competinginterests between the parties.

D. CONCLUSION

100. For the reasons detailed above, we find that Respondent No.2 validly exercised its powers under the MMC Act to direct the acquisitionof the Appellants’ land. The argument by the Appellants that the MRTPAct maintains supremacy over the MMC Act is not the correct positionof law, in our opinion, and the two statutes exist side-by-side with somedegree of overlap. The powers under the MMC Act remain intact evenin cases where they cover a subject that is also provided for in theMRTP Act.

101. The procedure contemplated under Section 91 of the MMCAct to commence proceedings under the LAA for procuring land wassubstantially complied with. The part of the provision relied upon by theAppellants is directory in nature and requires substantial compliancerather than strict compliance. The objections raised by the Appellantsregarding certain aspects of the process are unfounded as no prejudicewas caused to them, and the purported defects are not nearly graveenough to cause an annulment of the entire process.

102. In light of these findings, we do not consider it necessary tocomment upon the submissions by learned Senior Counsel, Mr. Naphade,regarding the bona fides of the Appellants and their entitlement to reliefon the grounds of equity. Considering the other issues which have beenanswered in favour of the Respondents, this point becomes moot.

103. In the final outcome, we dismiss the present appeal as beingdevoid of merit.

104. Pending applications, if any, are also disposed of.

Ankit Gyan and Anurag Bhaskar(Assisted by : Rahul Kumar, LCRA)

Appeal dismissed.

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