Case: Pukhrajmal Sagarmal Lunkad (D) Through his L.Rs. &amp; Others Vs. The Municipal Council, Jalgaon &amp; Others

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.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 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 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 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.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555 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.

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

Explanation:
0[ds]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 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.15. The landowners further relied on the case of Girnar Traders v. State of Maharashtra and Others (2007) 7 SCC 555     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.