Case: Perfect Machine Tools Company Limited Vs. State of Maharashtra &amp; Others

29 Rule 2 of the Code of Civil Procedure and on ratio decidendi, the law would not be applicable to the facts of the present case. Under Rule 2A of Order 29, the service could be affected on a Corporation or a statutory body on the Secretary or any director or either Principal Officer of the Corporation. The Supreme Court had taken the view keeping in view the liberal language used by the Legislature in those provisions. In contra-distinction to that, the provision of section 127 of the Act read with sections 2(19) and 136 of the Act makes it mandatory that notice should be served upon the Principal Officer of the Planning Authority viz. the Municipal Corporation of Greater Mumbai.16.It will be useful to refer to some judgments of different courts dealing with the service of notice under section 434 of the Companies Act, 1956. The statutory notice contemplated under that provision was held to be mandatory and it was said that notice must be addressed to the Company itself and the notice addressed to the Managing Director was held to be improper. A notice which was not served on the registered office of the company was also held to be not a good notice. (Rajearajeswari Packaging Products v. Dev Fasteners Ltd. 2002 (108) Company Cases 715 (Mad) and Tata Iron & Steel Co. v. HIM Ispat Ltd., 2002 (108) Company Cases 537).17.Even in the case of Vysya Bank Ltd. V. Randhir Steel and Alloys P. Ltd. 1993 (76) Company Cases 244, the Division Bench of this court held that where the registered office of the company was not functioning and that the company was giving some other address for correspondence, a notice at that address was held to be no good service.18.In the case of M/s. Shalimar Rope Works Ltd. V. M/s. Abdul Hussain H.M. Hassan Bhai Rassiwala and others, AIR 1980 SC 1163 , the Supreme Court held that even for compliance of the provisions of Order 29 Rule 2, Clause (b) the notice or summons should be left at the registered office of the company and summons served on the employees sitting in the registered office of the company who was merely an office assistant in the Sales Department of the company and was not officer of the company duly authorized officer to accept summons on behalf of the company, there was no valid service.19.The mere fact that the Chief Engineer in his capacity had replied to the notice should be treated to be a deemed service upon the Principal Officer of the company can also not be accepted. Once the law contemplates service, mode of service, service on a person and that too within the specified periods, has to be mandatory. Furthermore, in the fact and circumstances of the present case, the petitioner, in any case cannot take any advantage inasmuch as steps had been taken for acquisition of the said land and notification in that behalf already stands issued.20.The contention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. The afore-referred provisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424 , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]6.It is a settled canon of law that the legislature is quite competent to create the legal fiction, in other words, to enact a deeming provision for the purposes of assuming existence of a fact which does not really exist provided the declaration offact as existing does not offend the constitution. The legal fiction, thus, could be enacted without using express words. The court while interpreting such a provision has to ascertain for what purpose the fiction is created and then court may even assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. The courts, however, have to take definite precaution that while construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language in the section by which it isacquire the benefit of the provisions resulting from a legal fiction, it would be obligatory upon the part of the beneficiary to comply with the requirements of the statutory provisions strictly. Conditions postulated under this provision would be mandatory and not merely directory since the default has the effect of taking the land outside the ambit of acquisition/reservation. Thus, the compliance of the requirements of the provisions would be a condition precedent to the invocation of the right granting such benefit. The interested person should serve a notice on the Planning Authority, Development Authority or the appropriate authority as the case may be. The notice should state that despite its reservation, notification and after coming into force of the final development plan for 10 years, the land has not been acquired. The person should assert his right and still if within six months from the date of service of such notice the land is not acquired or no steps as stated in the section are commenced, then alone, the land shall be deemed to be released from such reservation and would be available to the owner.8.Withreference to the provisions of section 127, the contention raised on behalf of the respondents is that the Planning Authority, as stated under this provision, would be a local authority as defined under section 2(19) would be the Corporation and the notice ought to have been served as contemplated under this provision upon the Principal Officer of the Municipal Corporation.As the notice was neither addressed nor served on the said authority, it will be violation of the provisions of section 127 of the Act which are imperative and thus, the petitioner would not be entitled to any benefit. However, according to the petitioner, no format has been prescribed under section 127 of the Act of the notice in question and substantial compliance to the provisions would be sufficient to receive the benefits under the deemed fiction particularly when the requisite period hasis no dispute to the fact that the Municipal Corporation of Greater Mumbai has been duly nominated or notified to be the Planning Authority for Greater Mumbai. The notice, thus, should have been addressed to the Principal Officer, Municipal Corporation of Greater Mumbai and delivered at the office of the said Corporation. The petitioner had addressed his notice dated 29th September, 2004 to the Chief Engineer, Development Plan, Municipal Corporation of Greater Mumbai. This notice was stated to be a purchase notice under section 127 of the MRTP Act and certain documents werethe light of the above facts, it is clear that there is no compliance to the statutory provision embodied in the language of section 127 of the Act. These provisions cannot be termed strictly as directory but would be mandatory as their compliance provides great benefit to the land owner or a person interested in the land and takes the land in question outside the ambit of reservation/development plan. Notice ought to be addressed to the prescribed authority and should be served by the registered post or delivered at the office and also the period of ten years and six months respectively specified under the Act should lapse before the person could claim any benefits from the default of the authorities concerned. On the plain reading of the provisions, it is obvious that it does not lie in the discretion of the applicant to serve the notice on the authorities which he thinks proper and in a manner considered proper by the applicant. It is obligatory upon the person to comply strictly with the provisions of the section as it divest the other party i.e. the Planning Authority of any right to carry out any development on that land. The deemed legal fiction of serious consequences cannot be said to be operative without strict compliance of the mandatory provisions. Maxwell correctly notices that it is impossible to lay down any general rule for determining whether a provision is imperative ormere use of the words may serve notice on the Planning Authority by itself per se would not render the provisions as directory in their nature and substance. The legislative intention is to bring the default to the notice of the competent authority (Planning Authority) and that the particular authority has still failed to take action or take steps for acquisition etc. within six months thereafter then alone the deeming fiction of law or deemed lapse would come into play. The purpose of the provision of section 127 of the Act does not admit of such construction that court should be inclined to hold that directory compliance to the provision would be sufficient to entitle the parties of statutory benefit. It is a matter of common knowledge that a letter addressed to the wrong officer though in the same Corporation may not be dealt with for months together as they may genuinely be under the impression that they are not expected to deal with the notice and in any case, may not be exactly aware of the consequences flowing from such default as it is only and squarely falls within the exclusive jurisdiction of the Principal Officer of the Planningcontention that no format has been prescribed under the statute would leave the petitioner of compliance to the provisions of the Act is also without any merit. Merely because a format has not been specified in the section or in appendix to the rule would in no way absolve the petitioner of his obligation to comply with the statutory requirements. Theprovisions clearly state what should be stated in the notice, on which authority the notice should be served and what should the applicant asked for and how it should be served. Once the provisions are clear, there is no requirement to read these provisions ambiguously. We, therefore, reject this contention.21.We are not going into the validity or otherwise of the said notification in view of the finding of fact recorded by us that purchase notice served by the petitioner under section 127 was not in compliance of the provisions of the said section.22.In the case of Amar Nath Dogra v. Union of India, AIR 1963 SC 424  , the Supreme Court had taken the view that provisions of section 80 of the Code of Civil Procedure require the notice to be served in terms of the section and compliance of this provision was mandatory. It may not be correct to argue that substantial and imperative compliance of the provisions of the section would be a hyper technical approach. This provision cannot be equated to mere procedural section but is a section which has serious consequences on the rights of the parties. The provisions which are not only capable of but, in fact, vest one party with rights while divest the other, where it can unsettle the settled position, that too resulting from the default of appropriate authorities, then such provision would fall in line with the rule of strict construction. In clear distinction to the provisions of procedural laws simplicitor, the legislature has worded this provision differently and conveyed the intent of the framers of law unambiguously. By deemed fiction of law it alters the right in property, thus, can hardly be equated to the directory provisions of procedural law embodied in codes like Civil Procedure or Criminal Procedure. The notice under Section 127 of the Act, therefore, should essentially contain the material averments contemplated under these provisions, it should be served upon the prescribed authority and in the manner specified therein. It is only thereafter and upon expiry of the statutory period that any beneficial consequences in favour of the applicant will flow. The statute does not specifically or otherwise indicate any diverse rule to satisfy the legal requirements of Section 127. This would further support the approach that acts required under this provision must be done only in the manner specified in law. The service upon any other authority except the specified authority and without specific averments will not be a good notice for the purpose of Section 127 of the Act. The applicant, that is the interested person in the land, therefore, cannot take any benefit of such defective notice.