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Sunday, February 5, 2017

The landowners further relied on the case of Girnar Traders Vs. State of Maharashtra and Others[1] to contend that the land is deemed to have been released after 6 months of the issue of Notice u/s 127 of the MRTP Act. The contention of the landowners cannot be accepted for the reason that the decision relied by the landowners to contend that no steps were taken relates to the ‘Development Plan’ for which the steps for acquisition had to be taken as per Section 126. In the present case, before the scheme is implemented, the procedure contemplated under Chapter V is followed to finalise the scheme. The procedure includes the sanctioning of draft scheme, appointment of arbitrator, issuing notices to persons affected by the scheme, determination of compensation by the arbitrator and then the final award made by the arbitrator. In respect of the land required under Town Planning Scheme except the Development Plan, the steps under Section 126 may not require to be resorted to at all. It is clear from the record that the Draft Town Planning Scheme was published in 1976, arbitrator determined the compensation in 1980, the appeal filed before the Tribunal was dismissed in 1987 and the scheme was sent to the Government for sanction in 1988 and it was finally sanctioned in 1993 by following the procedure under Chapter V which is a self contained code for the implementation of the Town Planning Scheme.



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL NO. 491 OF 2007

Pukhrajmal Sagarmal Lunkad (D)
Through his L.Rs. and others etc.            … Appellants

                                   Versus

The Municipal Council, Jalgaon
and others                                   …Respondents


                               J U D G M E N T

Prafulla C. Pant, J.


This appeal is directed against judgment and order dated 23.12.2004,  passed
by the High Court of Judicature of  Bombay,  Bench  at  Aurangabad,  whereby
said Court has dismissed the Writ Petition No. 1924 of 1992.   And  for  the
reasons given in the said order, the other two Writ Petition  Nos.  1925  of
1992 and 1228 of 2001 were also dismissed.

In the above Writ Petitions (Nos. 1924 of  1992  and  1925  of  1992),  Town
Planning Scheme in respect of survey  No.  431/A  (new  plot  No.  287)  and
survey No. 431/B (new plot No. 288)  situated  at  Mehrun  area  within  the
limits of Municipal Council Jalgaon,  was sought to be quashed.

Brief facts of the case  are  that  appellants  were  admittedly  owners  of
survey No. 431/A-1, A-2 and A-3  and  survey  No.  431/B.    On  15.12.1971,
Jalgaon  Municipal  Council  which  is  a  Planning  Authority   under   the
Maharashtra Regional and Town Planning Act, 1966  (for  short  “MRTP  Act”),
published Draft Development Plan in respect of certain lands  including  the
aforementioned plots owned by the  appellants  and  reserved  the  same  for
public purpose, renumbering them as plot No. 288  in  reservation  site  No.
107 (for garden) and plot No. 287 reserved in site Nos.  104  and  105  (for
the purposes of construction of library,  maternity  home  and  dispensary).
Final Development Plan was sanctioned in respect of above  area  which  came
into operation on 16.12.1974.  According to the  appellants,  this  date  is
the starting point for taking steps for acquisition within a period  of  ten
years under MRTP Act, as the owners got restricted/prevented  from  carrying
out any developmental activities over their land.  It  is  pleaded  by  them
that the procedure for acquisition of the land reserved for  public  purpose
is provided under Chapter VII, which allowed at the relevant point  of  time
only two modes of acquisition under Section 126 (1) of the MRTP Act,  namely
– (i) by  agreement,  and  (ii)  by  making  an  application  to  the  State
Government for acquiring such land under Land Acquisition Act, 1894.

Section 127 of the MRTP Act, provides that if any  land  reserved,  allotted
or designated for any purpose specified in any plan under the  Act,  is  not
acquired by agreement within ten years from the  date  on  which  the  final
Regional Plan or final Development Plan came into force  or  if  proceedings
under Land Acquisition Act, 1894, are not commenced within such period,  the
owner or any person  interested  in  the  land,  may  serve  notice  on  the
Planning Authority, Development Authority or Appropriate Authority,  as  the
case may be, and if within six months  of  such  notice,  the  land  is  not
acquired or no steps, as aforesaid, are commenced for the  acquisition,  the
reservation, allotment or designation shall be deemed to  have  lapsed,  and
thereupon the land shall be deemed to  be  released  from  the  reservation,
allotment or designation, and shall become available to the  owner  for  the
purpose of development as otherwise permissible  in  the  case  of  adjacent
land under the relevant plan.

The appellants’ case is that on 15.12.1984 ten years stood expired from  the
date coming into operation of final Development Plan,  and  the  respondents
failed to acquire the land.  As such, the  original  appellants/land  owners
sent a notice under Section 127 of the MRTP Act to the  Planning  Authority,
Jalgaon Municipal Council on 7.10.1986,  but  even  after  receipt  of  such
notice, the Municipal Council failed to take steps for  acquisition  of  the
appellants’ land reserved for  public  purpose  within  the  period  of  six
months, and consequently, the land  stood  released  from  the  reservation.
But when in spite of repeated representations no orders were passed  by  the
Planning Authority releasing the land, the appellants  filed  Writ  Petition
Nos. 1924 of 1992  and  1925  of  1992  qua  survey  Nos.  431/A  and  431/B
respectively, seeking writ of mandamus  to  quash  the  reservation  of  the
appellants’ land for Town Planning Scheme.

On the other hand, on behalf of  the  Planning  Authority/Jalgaon  Municipal
Council, it is stated that  larger  area  of  land  including  the  land  in
question was subsequently reserved on 09.09.1976 for public  purposes  under
the Town Planning Scheme III, and Sections 126 and 127 of MRTP Act  have  no
application in the present case.  The scheme started way back year  in  1976
and  Arbitrator  was  appointed  under  the  Act  and  he  passed  award  on
20.03.1980 and compensation of ?1,20,000/- for plot no. 287 (Old  No.  431A)
and ?1,51,700/- for plot no. 288 (old No. 431B) was determined.  The  appeal
to the Tribunal regarding compensation was dismissed. It is  further  stated
that the land stood vested under Section 88 of the MRTP Act.  On  behalf  of
the respondents, it is also pointed out that advance possession of the  land
was voluntarily delivered by the appellants  to  the  Municipal  Council  on
21.2.1981 and compensation  determined  by  the  Arbitrator  was  deposited.
(Appellants have responded to the above plea by  stating  that  the  advance
possession was delivered only in respect of a small strip of land  used  for
twenty feet wide road).

It is not out of context to mention here that the revised  Development  Plan
for Town Planning Scheme No. III was submitted by the Municipal  Council  on
01.03.1988, which the State Government sanctioned on 06.01.1993 and in  said
scheme the land in question was reserved  for  “civic  centre”.   The  State
Government   approved   the   said   final   Town   Planning    Scheme    on
29.5.1993/31.5.1993.  It has also come on record that at one stage,  on  the
representation of the appellants in the year  1984,  the  Municipal  Council
submitted proposal for deletion of land  from  reservation  for  development
plan, but the same was rejected by the State Government.

The High Court, after hearing the parties, opined that the Development  Plan
proposals are executed by the local  authority  either  by  compulsory  land
acquisition,  or  by  preparing  and  executing  Town  Planning  Scheme  for
different parts of the town so that when  all  proposals  are  carried  out,
there would be harmony and the town is developed  in  planned  manner.   The
High Court further observed that in making a Town Planning Scheme the  lands
of all persons covered by the Scheme are treated as if they are to be  in  a
pool.  The Town Planning Officer then proceeds  to  reconstitute  the  plots
for residential buildings and reserves certain lands  for  public  purposes.
The reconstituted plots are allotted to land owners  with  change  in  shape
and size.  The Arbitrator under the MRTP Act lays out  new  roads,  reserves
land for recreation grounds,  schools,  markets,  green  belts  and  similar
public purposes.  The object of the Scheme being  so  to  provide  amenities
and benefit to the residents, the area  in  occupation  of  individual  land
holders is reduced.  The result is that there is shifting of plots of  land,
roads, means of communication.  As such, the rearrangement of titles in  the
various plots requires financial adjustments to be made and the  owners  who
are deprived of their land are compensated.  The High Court, discussing  the
provisions of Bombay Town Planning Act and that of the MRTP  Act,  has  held
that Section 126 of  MRTP  Act  providing  for  acquisition  could  only  be
resorted to, in relation to the cases covered by  exclusionary  clause  used
in Section 88 (a) of the Act, and it further held that Section 127 does  not
apply to lands reserved for public purpose under Town Planning Scheme,  and,
as such, there is no lapsing of reservation of land  under  Section  127  of
the Act, and dismissed the writ petitions.

We have examined the matter  and  considered  the  rival     submissions  of
learned counsel for the parties.

Before further discussion, we think it just and  proper  to  look  into  the
definitions of ‘Development Plan’ and ‘Town Planning Scheme’.  Section  2(9)
of MRTP Act defines the term ‘Development Plan’ and reads as under:
‘Development Plan’ means a Plan for the  Development  or  re-development  of
the area within the  jurisdiction  of  a  Planning  Authority  and  includes
revision of development plan and proposals of a Special  Planning  Authority
for development of land within its jurisdiction’.


The expression Town Planning Scheme is not defined in the Act but under sub-
section 2(30) the word ‘Scheme’ is defined as:
‘Scheme’ includes a plan relating to a Town Planning Scheme’.

According to concise Oxford English Dictionary ‘scheme’ means  a  systematic
plan or arrangement for  attaining  some  particular  object  or  putting  a
particular idea into effect. In the same dictionary, term  ‘planning’  means
planning and control of the construction, growth, and development of a  town
or other urban area. As such, we may say that  the  term  ‘Planning  Scheme’
means, a systematic plan with an object  of  planning  and  control  of  the
construction, growth and development of a town. We also  think  it  relevant
to mention here that Development Plans are dealt  with  under  Chapter  III,
and Town Planning Schemes are dealt  with  under  Chapter  V  of  MRTP  Act.
Section 126 of the Act which is part of Chapter VII,  deals  with  Plans  as
well as Schemes, but Section 127 does not refer to Town Planning Schemes.

Effect of final Town Planning Scheme is provided in Section 88 of  the  MRTP
Act which reads (as it existed before 2014), as under:

“88. Effect of final scheme - On and after the day on which a  final  scheme
comes into force-

all lands required by the Planning Authority shall, unless it  is  otherwise
determined in such scheme, vest absolutely in the  Planning  Authority  free
from all encumbrances;

 all rights in the  original  plots  which  have  been  reconstituted  shall
determine, and the reconstituted plots shall become subject  to  the  rights
settled by Arbitrator;

the Planning Authority shall hand over possession of the final plots to  the
owners to whom they are allotted in the final scheme.”


It is stated that draft Development Plan relating to plots in  question  was
initially  published  on  15.12.1971  which  was  sanctioned  by  the  State
Government on 11.04.1974 and finally Development  Plan  was  operationalised
on 16.12.1974. But the Town Planning Scheme based on  the  said  Development
Plan relating to the plots in question is stated to have  been  prepared  on
09.09.1976,    and    thereafter     finalized     and     sanctioned     on
29.05.1993/31.05.1993.

Learned counsel for the appellants argued that the Town Planning Scheme  was
approved by the State Government  in  January,  1993,  based  on  a  revised
Development Plan submitted by the Municipal Council  in  1988,  i.e.,  after
reservation of land in question already stood lapsed as the land owners  had
served the notice under Section 127  of  MRTP  Act  on  07.10.1986  and  six
months period  had  passed  thereafter.  This  argument  on  scrutiny  lacks
substance for the reason that the land in  question  was  reserved  in  1976
under Town Planning  Scheme  III.  We  have  already  discussed  above  that
Section 127 does not refer to Town Planning Schemes.

In the present case the prayer  is  made  by  the  appellants  in  the  Writ
Petitions specifically in respect of Town Planning  Scheme  No.  III,  which
was finally sanctioned, as such, we find no error in the  impugned  judgment
passed by the High Court dismissing the Writ Petitions.  From  the  copy  of
special notice dated 25.04.1980 in form No. 4  issued  under  Town  Planning
Scheme Rules (filed as Annexure-B with the additional  documents)  and  copy
of order dated 16.05.1980 passed by the Arbitrator in the  aforesaid  rules,
it is clear that the compensation was  determined  in  respect  of  land  in
question under Town Planning Scheme. The decision of the Arbitrator  appears
to have been published in the Official Gazette dated 20th August, 1980,  and
appeal was dismissed.  In the circumstances, we find no error in  the  order
passed by the High Court.

The landowners further relied on the case of Girnar  Traders  Vs.  State  of
Maharashtra and Others[1]  to contend that the land is deemed to  have  been
released after 6 months of the issue of Notice u/s 127 of the MRTP Act.  The
contention of the landowners cannot be accepted  for  the  reason  that  the
decision relied by the landowners  to  contend  that  no  steps  were  taken
relates to the ‘Development Plan’ for which the steps  for  acquisition  had
to be taken as per Section 126. In the present case, before  the  scheme  is
implemented, the procedure contemplated  under  Chapter  V  is  followed  to
finalise the  scheme.  The  procedure  includes  the  sanctioning  of  draft
scheme, appointment of arbitrator, issuing notices to  persons  affected  by
the scheme, determination of compensation by the  arbitrator  and  then  the
final award made by the arbitrator. In respect of the  land  required  under
Town Planning Scheme except the Development Plan, the  steps  under  Section
126 may not require to be resorted to at all. It is clear  from  the  record
that the Draft Town  Planning  Scheme  was  published  in  1976,  arbitrator
determined the compensation in 1980, the appeal filed  before  the  Tribunal
was dismissed in 1987  and  the  scheme  was  sent  to  the  Government  for
sanction in 1988 and it was finally sanctioned  in  1993  by  following  the
procedure  under  Chapter  V  which  is  a  self  contained  code  for   the
implementation of the Town Planning Scheme.

For the reasons as discussed above,  we  do  not  find  any  force  in  this
appeal. Accordingly, the same is dismissed. No order as to costs.


                                                              ………………………………J.
                                                            [Madan B. Lokur]



                                                              ………………………………J.
                                                          [Prafulla C. Pant]
New Delhi;
February 03, 2017.

-----------------------
[1]     (2007) 7 SCC 555



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