PUKHARAJMAL SAGARMAL LUNKAD(D)BY LRS&ORS Vs. THE MUNICIPAL COUNCIL, JALGAON & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Civil), 491 of 2007, Judgment Date: Feb 03, 2017
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.
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[1] (2007) 7 SCC 555