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Reportable

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.

1. 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.

2. 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.

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288) situated at Mehrun area within the limits of Municipal

Council Jalgaon,  was sought to be quashed.

3. 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

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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.  

4. 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

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available  to  the  owner  for  the  purpose  of  development  as

otherwise permissible in the case of adjacent land under the

relevant plan.

5. 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.

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6. 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).

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7. 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.

8. 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

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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

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Planning  Scheme,  and,  as  such,  there  is  no  lapsing  of

reservation  of  land  under  Section  127  of  the  Act,  and

dismissed the writ petitions.

9. We have examined the matter and considered the rival

submissions of learned counsel for the parties.

10. 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

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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.

11. 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-

(a) 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;

(b)  all rights in the original plots which have been reconstituted  shall  determine,  and  the

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reconstituted plots shall become subject to the rights settled by Arbitrator;

 (c) the  Planning  Authority  shall  hand  over

possession of the final plots to the owners to whom they are allotted in the final scheme.”

12. 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.

13. 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

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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.  

14. 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.

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15. The  landowners  further  relied  on  the  case  of  Girnar

Traders Vs. State of Maharashtra and Others1  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

1  (2007) 7 SCC 555

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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.

16. 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.