Whether the condition of attaching the documents of title with the purchase notice notice U/S 127 of MRTP Act is deemed to be waived by the Municipal Corporation if it has not replied to said notice?

d] In the case of M/s. Gupta Loom Industries & Anr. v. The State of Maharashtra and Ors., reported in MANU/MH/3005/2015 : 2016 (6) ALL MR 307 : (2016 (1) ABR 170) the Division Bench of this Court in Paragraph Nos. 13 and 14 has observed as under:

"13. It is true that the notice under subsection (1) of Section 127 has to be construed strictly as non-compliance with the notice has a drastic consequence of lapse of reservation. Therefore, the mandatory requirement of law is that strict compliance must be made of while issuing a notice under sub-section (1) of Section 127. In the facts of the case, we find that specifically on the basis of the said notice dated 7th October, 2010, the General Body of the Municipal Corporation passed a resolution for initiating acquisition proceedings. The proposal for the acquisition specifically refers to the said notice. Hence, even the said Corporation has acted upon the said notice dated 7th October, 2010 by treating it as a notice under Section 127.

14. It is well settled that if certain requirements or conditions are provided by a statute for the benefit of a person, the said requirements or conditions though mandatory, may be waived by the said person if no public interest is involved. In the facts of the case, the Municipal Corporation acted upon the said notice by passing a resolution to initiate acquisition proceedings which shows that the alleged defects in the notice were waived by the said Corporation for whose benefit certain requirements are provided in Section 127."

 31. Learned Advocate appearing for the petitioners relying upon the ratio laid down in the case of M/s. Gupta Loom Industries & Anr cited (MANU/MH/3005/2015 : 2016 (1) ABR 170) (supra) and Supreme Industries Ltd. Through its Authorized Signatory cited (supra)submitted that, in the present case as respondents have not replied purchase notice it can be said that they have waived the condition of attaching the documents of title with purchase notice. In both the above said decisions the respondent Municipal Corporation had passed resolution for initiating acquisition proceedings to acquire the land after receipt of the purchase notice and acted upon the said notice. Therefore, it was held in the said decisions that respondents have waived the alleged defect in the notice. In the present case, it is not the case of any of the respondents that after receipt of the purchase notice the respondent Municipal Corporation has passed resolution to initiate acquisition proceedings to acquire the subject properties. Thus, facts of above decisions are different from facts of this case. Therefore, the arguments advanced as above on behalf of the petitioners is not accepted and the ratio laid down in the above decisions is of no help to say that the respondents have waived the condition of attaching documents of title with the purchase notice.

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5312 of 2016

Decided On: 20.03.2018

Mariyam Begum Abdul Jalil Khan and Ors.  Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Author: S.M. Gavhane, J.

Citation: MANU/MH/1536/2018.

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