Supreme Court of India
JAYESH DHANESH GORAGANDHIversusMUNICIPAL CORPORATION OF GREATER MUMBAI & ORS.
- Citation
- 2012 INSC 566
- Decided
- 4 December 2012
- Disposal
- Dismissed
- Bench
- K S RADHAKRISHNAN
Holding
Section 126 of the MRTP Act is applicable only before a Town Planning Scheme is finalized and compensation is determined; once the final scheme is sanctioned and the land vests under Section 88(a), the provision does not apply.
Summary
The appellants, heirs of a plot of land in Borivali, challenged the reservation of their land for a municipal office under a Town Planning Scheme prepared under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act). After the scheme was finalized, an arbitrator determined compensation, which was paid, and the appellants' appeal to the Tribunal was dismissed. The appellants then argued that, despite the final scheme and compensation, the land could only be acquired under Chapter VII of the MRTP Act, specifically Section 126. The Supreme Court held that Section 126 applies only before a Town Planning Scheme is sanctioned and before compensation is fixed by the arbitrator; once the final scheme is sanctioned and the land vests in the State under Section 88(a), the rights of the original owners are extinguished and further acquisition under Section 126 is unavailable. Consequently, the appeals were dismissed. The Court emphasized that the MRTP Act is a self‑contained code where compensation and acquisition mechanisms are integrated within the scheme itself.
Issues considered
- Whether Section 126 of the MRTP Act can be invoked after a Town Planning Scheme has been finalized and the land has vested in the State under Section 88(a).
- Whether the rights of the original landowners are extinguished upon sanction of the final scheme, precluding further acquisition under Chapter VII.
- Whether compensation paid under Chapter V of the MRTP Act satisfies the landowner's entitlement, rendering Section 126 inapplicable.
Legislation cited
- Land Acquisition Act, 1894s. 6
- Limitation Act, 1963s. 12, s. 14, s. 5
- Maharashtra Regional and Town Planning Act, 1966s. 125, s. 126, s. 59, s. 61, s. 63, s. 64, s. 67, s. 68, s. 72, s. 74, s. 86, s. 88
Subjects
Town Planning SchemeMRTP ActSection 126Section 88CompensationLand acquisitionArbitrationPublic purposeFinal schemeVesting
Judgment
[2012] 12 S.C.R. 727
JAYESH DHANESH GORAGANDHI A
v.
MUNICIPAL CORPORATION OF GREATER MUMBAI &
ORS.
(Civil Appeal Nos.8708-09 of 2012)
B
DECEMBER 4, 2012
[K.S .. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Maharashtra Regional and Town Planning Act, 1966 -
Ch. VII, s.126 - Whether after framing a Town Planning C
Scheme and the final scheme brought into force, after
reserving plots for public purposes, providing compensation
under Chapter V of the Act, can the land owner insist that the
land be acquired only by following the provisions of Chapter
VII of the Act, especially uls. 126 - Held: s. 126 can apply only D
when the scheme is not sanctioned and the amount of
compensation has not been determined by the Arbitrator -
Therefore, in cases where town planning scheme is already
sanctioned and the property vests in the State Government
under s.88(a), the question of resorting to s.126(2) does not E
arise - On facts, after completing the procedure under
Chapter V, compensation was offered and paid to the
appellant and the appeal preferred by the appellant was also
dismissed by the Tribunal and therefore further acquisition of
land u/s.126 does not arise. F
The question that arose for consideration in I
the
present appeals was whether after framing a Town
Planning Scheme and the final scheme- brought into
force, after reserving plots for public purposes, providing
compensation under Chapter V of the Maharashtra G
Regional and Town Planning Act, 1966 ('the MRTP Act'),
can the land owner insist that the land be acquired only
by following the provisions of Chapter VII of the MRTP
Act, especially under Section 126 of the MRTP Act.
727 H
728 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Dismissing the appeals, the Court
HELD: 1.1. The Town Planning Scheme envisaged
under the MRTP Act is a code by itself and the provisions
relating to compensation are inbuilt in the scheme itself.
Provisions of Town Planning scheme provide for
8
computation of compensation by the Arbitrator and if a
party is aggrieved by the determination of compensation
by the arbitrator, a party has a right of appeal before the
Tribunal under the provisions of the MRTP Act. On the
C final scheme being sanctioned by the State Government
under Section 88(a) of the MRTP Act, the property vests
free of all encumbrances in the State Government and all
rights of the original holders in the original plot of land
stand extinguished, the rights of the parties are those
governed by the provisions of the said scheme and
D cannot be dealt with outside the scheme. [Para 35] [757-
F-H; 758-A]
1.2. The Town Planning Scheme, as per the Act, is
meant for planned developments of certain local areas
E depending on various factors in order to make available
utilities and facilities to the general public in the said area.
For the purpose of said Town Planning Schemes, various
facilities, utilities and services are required to be provided
for which certain lands are required. These Town
F Planning Schemes are for immediate need of the
community and not for acquisition on deferred basis and
therefore these sections under Chapter V provide a
machinery to prepare and develop the area and
implement such schemes in praesenti. These schemes
G are not for future projections but for making available
resources at the immediate time. In view of these
circumstances, the lands required for implementation of
various utilities and facilities, services of any public need
and requirement would be for a public purpose and
therefore the same have to be made available the
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 729
GREATER MUMBAI
Government immediately so as to implement the scheme. A
[Para 45) [772-C-F]
1.3. Once the town planning scheme is finally
sanctioned under Section 86, compensation is finally
determined by the Arbitrator, the property vests under B
Section 88 in the State Government, then there is no
question of resorting to further acquisition under Section
126(2) of the Act. The words "town planning scheme"
used in Section 126(2) is in respect of the town planning
scheme which is yet to be finalized and sanctioned under C
Section 86 by the State Government as a final scheme for
inviting objections under Section 67 of the Act. Provisions
of Section 126(2) providing for acquisition of land,
therefore will apply only prior to the town planning
scheme is finally sanctioned under the provision of
Section 86 of the Act. [Para 46) [772-G-H; 773-A] D
1.4. It is therefore held that the provisions of Section
126 can apply only when the scheme is not sanctioned
and the amount of compensation has not been
determined by the Arbitrator. Therefore, in cases where E
town planning scheme is already sanctioned and the
property vests in the State Government under Section 88
(a) of the Act, the question of resorting to Section 126(2)
of the Act does not arise. [Para 47] [773-B-C]
Gimar Traders (3) v. State of Maharashtra and Others F
(2011) 3 SCC 1: 2011 (3) SCR 1; State of Gujarat v. Shanti/a/
Mangaldas and Others AIR 1969 SC 634: 1969 (3) SCR 341;
P. Vajravelu Mudaliar v. Special Deputy Collector, Madras
and Another (1965) 1 SCR 614; Prakash Amichand Shah v.
State of Gujarat and Others; 1986 (1) SCC 581: 1985 (3) G
Suppl. SCR 1025; Zandu Pharmaceutical Works Ltd. v. G.J.
Desai 1969 UJ (SC) 575; Nagpur Improvement Trust and
Another v. Vithal Rao and Others AIR 1973 SC 689: 1973
(3) SCR 39 and Laxminarayan R. Bhattad and Others v.
H
730 SUPREME COURT REPORTS [2012] 12 S.C.R.
A State of Maharashtra and Another (2003) 5 SCC 413: 2003
(3) SCR 409 - referred to.
Municipal Corporation of Greater Bombay and Others v.
Hindustan Pertoleum Corporation and another (2001) 8 SCC
143: 2001 (2) Suppl. SCR 50; Shri Rangaswami, Textile
8
Commissioner and Others v. The Sagar Textile (P) Ltd. and
Anr. (1977) 2 SCC 578: 1977 (2) SCR 825; Sub-Committee
on Judicial Acr:ountability v. Union of India and Others (1991)
4 SCC 699; Ram Prasad Narayan Sahi and Another v. The
C State of Bihar and Others (1953) 4 SCR 1129 and The State
of West Bengal v. Mrs. Bela Banerjee and Others (1954)
SCR 558 - cited.
2. It is found from the facts of the case that after
completing the procedure under Chapter V,
D compensation was offered and paid to the appellant and
the appeal preferred by the appellant was also dismissed
by the Tribunal and therefore further acquisition of land
under Section 126 does not arise. [Para 49) [773-F-G]
Case Law Reference:
E
2001 (2) Suppl. SCR 50 cited Para 14
1977 (2) SCR 825 cited Para 14
(1991) 4 sec 699 cited Para 14
F
(1953) 4 SCR 1129 cited Para 14
(1954) SCR 558 cited Para 14
2011 (3) SCR 1 referred to Para 19
G (1965) 1 SCR 614 referred to Para 39
1969 (3) SCR 341 referred to Para 39
(1965) 1 SCR 614 referred to Para 39
H 1985 (3) Suppl. SCR 1025 referred to Para 41
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP OF 731
GREATER MUMBAI
1969 UJ (SC) 575 referred to Para 41 A
1973 (3) SCR 39 referred to Para 42
2003 (3) SCR 409 referred to Para 43
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. B
8708-8709 of 2012.
From the Judgment & Order dated 06.05.2005 of the High
Court of Bombay in LPA No. 17 of 2002 & dated 16.10.2009
in RP No. 10143 of 2006 against LPA No. 17 of 2002 in FA
No. 442 of 1995. C
Dushyant Dave and Atul Y. Chitale, Aman Vachher,
Yadunath Chaudhuri, Dhiraj, Harsh Sharma, Chirag S., P.N.
Puri and Karan Kanwal for the Appellant.
U.U. Lalit, Ramesh P. Bhatt, Anand Grover, R.A. D
Malandkar, J.J. Xavier, Bhargava V. Desai, Shreyas Mehrotra,
Pooja Bahuguna and Mihir Samson for the Respondents.
The Judgment of the Court was delivered by
E
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. The question that has come up for consideration before
us is whether after framing a Town Planning Scheme and the
final scheme brought into force, after reserving plots for public
purposes, providing compensation under Chapter V of the F
Maharashtra Regional and Town Planning Act, 1966 (for short
'the MRTP Act'), can the land owner insist that the land be
acquired only by following the provisions of Chapter VII of the
MRTP Act, especially under Section 126 of the MRTP Act.
G
Facts
3. Vallabhadas Goragandhi was the original owner of plot
No. 9 which was renumbered as Final plot No.44 in the Town
Planning Scheme for Borivali with few structures thereon. After H
732 SUPREME COURT REPORTS (2012) 12 S.C.R.
A the death of Vallabhadas, his son Hiralal became the owner of
the plot. Originally, that plot was under the Borivali Municipal
Coun.cil in Thane District, Bombay. A Town Planning Scheme
was prepared under the Town Planning Act, 1919 for Borivali
with effect from 15.07.1919. In the year 1941, Hiralal expired
B and the appellant herein and respondent Nos.3 to 6 are the legal
heirs of Hiralal.
4. The Bombay Town Planning Act, 1919 was replaced by
the Bombay Town Planning Act, 1954 and the Borivali Municipal
Council declared its intention to vary the scheme prepared
C earlier: Then Government of Bombay declared on 31.12.1956
the intention of the Municipal Council to vary the scheme. With
effect from 01.07.1957, Borivali Suburban became a part of
Greater Mumbai and Municipal Corporation of Greater Mumbai
became the Planning Authority for that area. On 30.11.1959
D vide Resolution No. 1108, the Municipal Corporation declared
its intention to vary the said scheme under the Bombay Town
Planning Act, 1954. The Municipal Corporation vide its
notification dated 10.12.1959 published its intention to vary the
scheme. On 21.01.1961, the scheme was approved and
E published and original plot No.9 was renumbered as final plot
No. 44. The Municipal Corporation on 16.12.1961 informed the
6th respondent Ranjit Hiralal that the above mentioned plot was
reserved for public purpose. The Government of Maharashtra
on 09.03.1962 sanctioned draft scheme (first variation) wherein
F the property in question was reserved for a public purpose.
Later, an arbitrator was appointed under the Town Planning Act
who served notice upon Smt. Jayantibai whose name was
mentioned as owner of the property in the Property Register
Card. Two of the legal heirs (who were plaintiffs in the suit) sent
G a representation to the Corporation to release their land from
reservation.
5. The MRTP Act came into force with effect from
11.01.1967. The Corporation informed the legal heirs about the
reservation of the property in question for public purpose. Ranjit
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP OF 733
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.)
Harilal, the 6th respondent along with his brother appeared A
before the Arbitrator on 03.01.1968 and filed a detailed
statement on 08.02.1968 objecting the reservation of land for
Municipal Offices. The Arbitrator by its order dated 10.04.1968
rejected the objections raised by the owner of the property.
Later Smt. Jayantibai died on 11.01.1971. The Arbitrator gave B
the award under Section 72(3) (xviii) of the MRTP Act on
9.6.1973, confirming the proposal under draft scheme for
reservation of the plot for the purpose of Municipal Office. The
Town Planning Scheme for Borivali (II) (1st Variation) (final) was
then published in the Government Gazette on 9.7.1973. Against c
the award of the Arbitrator dated 9.07.1973, an appeal was
preferred by the respondents under Section 74 of the MRTP
Act whicli was dismissed by the Tribunal. However, the rate of
compensation was enhanced from Rs.15.60 to Rs.21.53 per
sq. mtr. The Government of Maharashtra later sanctioned the 0
final scheme on 17.07.1976 and the same was notified on
20.07.1976. The Town Planning Scheme as varied came into
effect from 28.09.1976. The Corporation later sent a notice to
the owners of the plot calling upon them to collect the amount
of compensation to the tune of Rs.1,17,918/- and the Ward
Officer of the Corporation also issued notice under Section 89 E
of the MRTP Act calling upon the legal heirs to remove the
structure from the property.
6. The legal heirs of Hiralal challenged the above
mentioned notice, the award of the Arbitrator and the decision F
of the Tribunal by filing Writ Petition (C) 1084 of 1978 before
High Court of Bombay. Writ Petition was, however, dismissed
by a learned Single Judge of the High Court on 14.10.1981.
Writ Appeal No. 530 of 1981 was preferred challenging the
above mentioned judgment which was also dismissed by the G
Division Bench on 03.12.1981.
7. The Corporation later issued a notice under Section 89
of the MRTP Act which was challenged by the legal heirs by
filing a civil suit before the City Civil Court. The Court rejected H
734 SUPREME COURT REPORTS [2012] 12 S.CJ.t
A the plaint on 28.3.1988 under Order VII Rule 11 (d) of CPC on
fhe'ground that under Section 149 of the MRTP Act, the City
Civil Court has no jurisdiction to entertain and try the suit. The
legal heirs then challenged the said order by filing Appeal No.
350 of 1988 before the High Court which was set aside and
B the suit was restored to the file to be heard and decided on
merits. The City Civil Court vide its order dated 16/20.02.1995
decreed the suit in favour of the legal heirs and liberty was
granted to the Corporation to take recourse to the proceedings
under Chapter VII of the MRTP Act, particularly Section 126 for
c the purpose of acquisition of land.
8. The Corporation then preferred First Appeal No. 442
of 1995 which was dismissed by the learned Single Judge of
the High Court, against which they preferred LPA No. 17 of 2002
which was allowed by the High Court vide its judgment dated
D 06.05.2005. Aggrieved by the judgment of the High Court dated
06.05.2005, the appellant preferred SLP (C) No. 20750 of
2005. The special leave petition was, however, disposed of by
this Court on 24.10.2005 stating as follows:
E "It is stated by learned counsel for the petitioners that
certain points which were really germane to the subject
matter in dispute before the High Court, had not been
placed for its consideration. It is stated that an appropriate
application shall be filed before the High Court for
F permission to urge those points. If it is done, the High Court
shall deal with the matter in its proper perspective and in
accordance with law which we express no opinion.
The special leave petition is, accordingly, disposed of.'
G 9. Appellant then filed a review petition No.10143 of 2006
with an application for condonation of delay. Following are the
propositions made in the review petition:
"(1) Proposals for Development Plan must provide, inter
alia, for:
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 735
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
(a) allocating the use of land for purposes such as; A
residential, industrial, commercial, agricultural,
recreational.
(b) designation of land for public purposes like schools,
colleges .... ,markets ... ,Government and other
8
buildings .... (vide section 22)
(2) Town Planning Schemes prepared for implementing the
[proposals in the final Development plan should also make
provisions for the matters specified in the Development
Plan, including reservation, acquisition, or allotment of land C
required for all purposes mentioned in Section 59(1 )(b).
(vide Sections 59 & 64).
(3 ) The Arbitrator appointed in accordance with Section
72 is required to define, demarcate and decide the areas D
allotted to or reserved for the public purpose or purposes
of the Planning Authority, and also the final plots.
(4) All lands required, reserved or designated in a
Development Plan or town planning scheme for a public
purpose, are deemed to be the land needed for a public E
purpose within the meaning of the Land Acquisition Act,
1894 (vide Section 125) and all such lands, required or
reserved for any public purpose specified in any plan or
scheme, may be acquired at any time by the Planning
Authority or the Development Authority or any other · F
appropriate Authority in accordance with the provisions
contained in the Land Acquisition Act, 1894 (vide Section
126).
(5) The cost of the scheme is required to be met wholly or G
in part by a contribution to be levied by the Planning
Authority on each final plot calculated in proportion to the
increment which is estimated to accrue in respect of such
plot (vide Section 99). The cost of the scheme includes all
sums payable by a Planning Authority and all sums H
736 SUPREME COURT REPORTS [2012] 12 S.C.R.
A payable as compensation for lands reserved or allotted for
any public purpose or purpose of a Planning Authority
which is solely beneficial to the owners or residents within
the area of the scheme.
(6) Such plots of lands as are earmarked or reserved
B
specifically for a public purpose, but which are not solely
benefidal to the owners or residents within the area of the
scheme, would not fall within the jurisdiction of the
Arbitrator since the estimated amount of compensation
payable for such lands could not be determined by him
c following the criterion laid down in Section 72 of the Act.
(7) The lands, which are specifically reserved for a public
purpose but not solely beneficial to the owners or the
residential within the area of the scheme, would have to
D be compulsorily acquired in accordance with the Land
Acquisition Act following the mandates of Sections 125
and 126. The compensation that would become payable
to the land owners for such acquisition would also not form
part of such cost of such scheme and no part of the
E compensation amount could be met form the contribution
to be levied by the Planning Authority on each final plot.
(8) The lands specifically reserved and earmarked for a
public purpose in the scheme which is not solely beneficial
to the owners or the residents within the area of the
F scheme, are not lands "required by the planning Authority"
and hence, the provisions of Section 88(a) have no
application in respect of such lands.
(9) The decision dated 23.12.2004 of the Division Bench
G of this Hon'ble Court in Zahir Jahangir Vakil v. Pune
Municipal Corporation, has no application to the present
case since the nature of the land which was the subject
matter of the scheme therein was completely different. In
that case, out of the original plot (revised plot no 77), two
H plots had been carved out - Final plot nos. 75 and 76. While
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 737
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
the Final Plot no. 76 was allotted to the landlord in A
substitution of the original plot of land, the other final plot
no. 75 was reserved for a school. The purpose of the
school is a public purpose, and was reserved solely for the
benefit of the owners cind residents within the area of the
scheme and hence, t~e cost of the said land became B
payable as compensation derived from the contribution
levied by the Planning Authority and became part of the
cost of the scheme.
In
(10) Zah/r Jaliangir Vakil's case, the provisions relating
to "Finance of Schemes" contained in Section 97 and in C
particular clause (c) of Sub-section (1) thereof and sections
98 and 99, among others, had not been considered.
Moreover, the interrelationship between the provisions in
Sections 125 and 126 on the one hand, and Sections
22(b), 64(b) and 97(1)(c) read with Section 99 regarding D
lands reserved for specific purpose in the development
plan and in the Town Planning Scheme, which are not
solely beneficial to the owners or residents within the area
of the scheme had not been considered. The said
decision, therefore, could not be regarded as a precedent E
for the questions involved in the present proceedings (vide
Union of India v. Dhanwanti Devi, (1996) 6 SCC 44, Para
9 and 10)".
10. The High Court condoned the delay in filing the review F
petition and examined the propositions and rejected all vide its
order dated 16.10.2009. Further, the High Court also
expressed the following view:
"What is important to be noted first is that all the grounds
which have been raised by way of the propositions of law G
which has been advanced, were not part of the pleadings
in the main Suit. Since the matter has arisen from the Suit,
the said pleadings were very much necessary so that the
other side could have had an opportunity to meet out those
pleadings and led evidence in that regard. Viewed from H
738 SUPREME COURT REPORTS [2012] 12 S.C.R.
A any angle, we do not find any substance in the afore-stated
propositions advanced on behalf of the petitioner."
11. In our view, once the SLP had been disposed of on
24.10.2005, all the findings recorded in the judgment of the High
Court dated 6.5.2005 had attained finality. Liberty was,
8
however, granted on the request of the appellant to raise certain
points which they could not raise earlier before the High Court.
The High Court was also directed to deal with those points in
accordance with law.
C 12. Shri Dushyant Dave, learned senior counsel appearing
for the appellant, took us elaborately through the MRTP Act
especially various provisions of Chapter V of the Act dealing
with the Town Planning Schemes. Learned senior counsel
submitted that when a land is clearly identified under the
D Development Plan or under the Town Planning Scheme as
required for specified public purpose and it is so designated
and declared in such a scheme, whether the land owner thereof
is a participant in the scheme or a beneficiary of the scheme
or not, such land could only be acquired in terms of the
E provisions contained in the Land Acquisition Act. Learned
senior counsel pointed out that Section 59 of the MRTP Act
opens with the words "subject to the provisions of this Act" and
that has to be read along with Section 126 of the Act which
provides that such land which is required or reserved for any
F of the public purposes specified in any plan or scheme may
be acquired under the Land Acquisition Act. Learned senior
counsel, therefore, submitted that any land which is required or
reserved for any public purposes specified in any plan or
scheme would be deemed to be land "needed for a public
G purpose" within the meaning of the Land Acquisition Act and
hence would have to be acquired in accordance with the
provisions of the Land Acquisition Act.
13. Learned senior counsel also submitted that the High
Court has not properly appreciated the scope and purpo~e of
H Section 88 of the MRTP Act which has to be read in the context
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 739
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.)
of Section 126 of the MRTP Act. The expression "vest A
absolutely" is used in a very limited sense in Section 88, which
involves only adjustment of different values between the
allottees and the other beneficiaries, limiting that much of lands
which are required by Planning Authority, for its own purposes,
while the rest of the lands under the Scheme undergoes 8
transformation of exchanging in the rights of the land owners
falling within the scheme. Learned senior counsel also
submitted that the Act does not lay down any guidelines as to
the circumstances that would justify acquisition of the land under
Sections 125 and 126 on the one hand and extinguishment of C
the rights of the owners in the lands in terms of Section 88 with
a meager compensation determined by the Arbitrator. Learned
senior counsel also referred to the Preamble of the MRTP Act
and submitted that the object of the Act was to make
compulsory acquisition of land required for the public purposes
in respect of the Town Planning Schemes. Learned ,senior 0
counsel also referred to various judgments of this Court in
support of its contention. Reference was made to the judgments
of this Court in Municipal Corporation of Greater Bombay and
Others v. Hindustan Pertoleum Corporation and Another
(2001) 8 SCC 143, Shri Rangaswami, Textile Commissioner E
and Others v. The Sagar Textile (P) Ltd. and Anr. (1977) 2
SCC 578, Sub-Committee on Judicial Accountability v. Union
of India and Others (1991) 4 SCC 699, Ram Prasad Narayan
Sahi and Another v. The State of Bihar and Others (1953) 4
SCR 1129, The State of West Bengal v. Mrs. Bela Banerjee F
and Others (1954) SCR 558, P. Vajravelu Mudaliar v. Special
Deputy Collector, Madras & Anr. (1965) 1 SCR 614 etc.
Learned senior counsel also submitted what Municipal
Corporation required is space for Municipal office of its own
approximately 50,000 sq. feet which the appellant is ready and G
willing to provide while carrying out the construction of the area
in question free of cost.
14. Shri U.U. Lalit, learned senior counsel for the Municipal
Corporation, took us through the provisions of the MRTP Act, H
740 SUPREME COURT REPORTS (2012] 12 S.C.R.
A especially Chapter V in respect of framing of the Town Planning
Scheme and submitted that the said chapter is a full and
comprehensive provision for the preparation of the Town
Planning Scheme. Learned senior counsel submitted that once
the town planning scheme is framed in accordance with the
8 said chapter and brought into force, the right, title of the original
owner of the plot stands extinguished and the land would stand
vested in the authority as per Section 88 of the MRTP Act.
Learned senior counsel also submitted that Chapter VII of the
MRTP Act is not applicable in such a case and the question of
C resorting to Section 126 does not arise, since an in-built
mechanism has already been provided in Chapter V of the Act.
Learned senior counsel also submitted that the appellant has
already availed all the remedies available in Chapter V and
there is no justification for invoking Section 126 of the MRTP
Act. Learned senior counsel submitted that as per the Town
D Planning Scheme which came into force on 20.09.1976 the final
plot No. 44 stood reserved for municipal office and has already
been allotted to the Municipal Corporation and they are in
physical possession of the plot in question. Learned senior
counsel also submitted that SLP filed against the original
E judgment dated 6.5.2005 has already been dismissed by this
Court and the points which attained finality cannot be reopened.
15. Learned senior counsel also pointed out that Municipal
Corporation has already handed over the plot to M/s Vitrag
F Construction and they have already started construction of the
corporation office and the grounds/foundation work is already
over. Learned senior counsel submitted that the Corporation
required an area of about 63, 161.20 sq. ft. to accommodate
all the existing offices and, therefore, the offer made by the
G appellant is legally unacceptable.
Maintainabilitv of the Appeal
16. We fully endorse the view expressed by the learned
senior counsel for the Corporation that, on dismissal of the SLP,
H the points already dealt with and decided by the High Court had
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 741
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
attained finality. This Court, while disposing of the petition on A
, 24.10.2005 permitted the appellants to raise those points which
are germane to the "subject matter" for which, suitable
pleadings should have been made in the plaint. The High Court
in the review order dt. 16.10.2009 has clearly found that the
grounds, which were raised in the review petition, were not part B
of the pleadings. In our view, tliat itself is sufficient to reject this
appeal.
17. We have come across several orders passed by this
court making observations while dismissing the SLP at the
admission stage, that too without hearing the opposite side, C
which may apparently seem to be innocuous but may generate
more litigations and embarrassment to the respective High
Courts. If this Court grants liberty to any party to raise "certain
points", those points should be clearly formulated in the order
of this Court, so that the High Court would be in a better D
position to understand the points left to be decided by the High
Court. Non formulation of such points by this Court creates
confusion in the mind of the litigants giving room for more
rounds of litigation. Our humble view is that this calls for serious
introspection. Be that it may, we are inclined to examine the E
legal contentions urged before us.
18. We have already stated that the only question that
arises for consideration is whether the landowners can take
recourse to Section 126 of the MRTP Act, once the TP Scheme F
is framed and the final scheme has been brought into force,
vesting the land in the Corporation and providing compensation
as provided in the Town Planning Scheme.
19. The scope and ambit of MRTP Act came up for
consideration before a five Judge Bench of this Court in Gimar G
Traders (3) v. State of Maharashtra and Others [(2011) 3 SCC
1] and this Court has taken the view that the provisions of the
MRTP Act relate to preparation, submission and sanction of
approval of different plans by the concerned authorities which
are aimed at achieving the object of planned development in H
742 SUPREME COURT REPORTS [2012] 12 S.C.R.
A contradiction to haphazard development. An owner/person
interested in the land and who wishes to object to the plans at
the appropriate stage, a self-contained adjudicatory machinery
has been spelt out in the MRTP Act. Even the remedy of appeal
is available under the MRTP Act with a complete Chapter
B being devoted to acquisition of land for the planned
development. Providing adjudicatory mechanism is one of the
most important facets of deciding whether a particular statute
is a 'complete code' in itself or not.
20. Various provisions of the Act comprehensively
C prescribe what and how the steps are required to be taken by
the authorities under the Act, right from the stage of preparation
of draft development plan to its finalization as well as
preparation and finalization of all regional and town planning
schemes. Right of the interested person to raise objections,
D pre-finalization of the respective plans, is specifically provided.
Besides providing right of objection to the owner of the land or
property, which fall within the development plan, the State Act
also provides machinery for finalization and determination of
disputes between the authorities and private parties.
E Furthermore, a person is entitled to raise all disputes including
the dispute of ownership. The Arbitrator nominated under the
MRTP Act has the jurisdiction to decide all such matters. The
jurisdiction of the Arbitrator is a limited one like estimation and
payment of compensation in relation to plots in distinction to
F lands as defined under the Act within the four corners of the
provisions of Sections 72 to 74 of the MRTP Act with reference
to Section 97 of the State Act.
21. The MRTP Act is, therefore, a code in itself and has
one predominant purpose, i.e., planned development. The
G principal purpose of the MRTP Act can be achieved without the
aid of the Land Acquisition Act which has a very limited and
restricted application. Whenever a land is required or reserved
for any public purpose specified in any plan or scheme under
H the MRTP Act, the concerned authority may, with the exception
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 743
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
of the provisions of Section 113A of the State Act, i.e. land A
designated under the Act connected with the development of
the new town, acquire the land by different modes i.e. (a) by
paying an amount agreed (by agreement); (b) in lieu of any such
amount by granting the right specified under Section 126(1)(b);
and (c) by making an application to the State Government for B
acquiring such land under the Land Acquisition Act. Section
126(2) lays down the procedure, primarily, as to how the
application made under Section 126(1)(c) is to be dealt with
by the State Government and, if it is satisfied, to make a
declaration in the Official Gazette to the effect that the land is C
needed for a public purpose, in the manner provided in Section
6 of the Land Acquisition Act. Section 126(3) deals with the
procedure to be followed after declaration contemplated under
Section 126(2) has been published.
22. It is not necessary to further elaborate the scope of the D
above mentioned provisions since, so far as the present case
. is concerned, there is no necessity of invoking Chapter VII of
the Act since after the publication of the final scheme, the land
vested absolutely in the Planning Authority free from all
encumbrances as per section 88(a) of the MRTP Act. Now to E
examine, how the land stands vested under Section 88 of the
MRTP Act, it is unnecessary to refer to few of the provisions of
the MRTP Act. Section 2(9) defines 'Development Plan' under
the MRTP Act which reads as follows:
F
"(9) "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 a development plan and proposal of a Special Planning
Authority for development of land within its jurisdictions."
G
23. Sections 30 and 31 provide for submission of a draft
Development Plan and sanction to draft Development Plan
respectively. Those provisions are extracted hereunder for easy
reference as it stood prior to the Amendment in 2011: '
H
744 SUPREME COURT REPORTS [2012] 12 S.C.R.
A "Section 30 - Submission of draft Development plan
(1) The Planning Authority or as the case may be, the said
Officer shall submit the draft Development Plan to the
State Government for sanction within a period of twelve
months from the date of publication of the notice in the
B Official Gazette regarding its preparation under section 26:
Provided that, the State Government may, on an
application by a Planning Authority or the said Officer by
an order in writing, and for adequate reasons which should
c be recorded, extend from time to time the said period by
such further period as may be specified in the order but
not in any case exceeding twenty-four months in the
aggregate.
D (2) The particulars referred to in sub-section (2) of section
26 shall also be submitted to the State Government.
Section 31 - Sanction to draft Development plan
(1) Subject to the provisions of this section, and-not later
E than one year from the date of receipt of such plan from
the Planning Authority, or as the case may be, from the said
Officer, fhe State Government may, after consulting the
Director of Town Planning by notification in the Official
Gazette sanction the draft Development Plan submitted to
F it for the whole area, or separately for any part thereof,
either without modification, or subject to such modifications
as it may consider proper or return the draft Development
plan to the Planning Authority or as the case may be, the
said Officer for modifying the plan as it may direct or refuse
G to accord sanction and direct the Planning Authority or the
said Officer to prepare a fresh Development plan;
Provided that, the State Government may, if it thinks
\
fit, whether the said period has expired or not, extend from
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 745
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
time to time, by a notification in the Official Gazette, the A
period for sanctioning the draft Development plan or
refusing to accord sanction thereto, by such further period
as may be specified in the notification :
Provided further that, where the modifications 8
proposed to be made by the State Government are of a
substantial nature, the State Government shall publish a
notice in the Official Gazette and also in local newspapers
inviting objections and suggestions from any person in
respect of the proposed modification within a period of C
sixty days, from the date of such notice.
(2) The State Government may appoint an officer of rank
not below that of a Class I Officer and direct him to hear
any such person in respect of such objections and
suggestions and submit his report thereon to the State D
Government.
(3) The State Government shall before according sanction
to the draft Development plan take into consideration such
objections and suggestions and the report of the officer. E
(4) The State Government shall fix in the notification under
sub-section (1) a date not earlier than one month from its
publication on which the final Development plan shall come
into operation.
F
(5) If a Development plan contains any proposal for the
designation of any land for a purpose specified in clauses
(b) and (c) of section 22, and if such land does not vest in
the Planning Authority, the State Government shall not
include that in the Development plan, unless it is satisfied G
that the Planning Authority will be able to acquire such land
by private agreement or compulsory acquisition not later
than ten years from the date on which the Development plan
comes into operation.
(6) A Development plan which has come into operation H
746 SUPREME COURT REPORTS [2012] 12 S.C.R.
A shall be called the "final Development plan" and shall,
subject to the provisions of this Act, be binding on the
Planning Authority."
24. The Provisions of Town Planning Scheme are covered
by Chapter V of the MRTP Act. Section 59 deals with
8
preparation and contents of town planning scheme which reads
as follows:
"Section 59 • Preparation and contents of town
planning scheme
c
(1) Subject to the provisions of this Act or any other law
for the time being in force-.
(a) a Planning Authority may for the purpose of
implementing the proposals in the final Development Plan,
D prepare one or more town planning schemes for the area
within its jurisdiction, or any part thereof;
(b) a town planning scheme may make provision for any
of the following matters, that is to say-
E
(i) any of the matters specified in section 22;
(ii) the laying out or re-laying out of land, either vacant or
already built upon, including areas of comprehensive
development;
F
(iii) the suspension, as far as may be necessary for the
proper carrying out of the scheme, of any rule, by-law,
regulation, notification or order made or issued under any
law for the time being in force which the Legislature of the
G State is competent to make;
(iv) such other matter not inconsistent with the object of this
Act, as may be directed by the State Government.
(2) In making provisions in a draft town planning scheme
H for any of the matters referred to in clause (b) of sub-
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 747
GREATER MUMBAI [KS. RADHAKRISHNAN, J.]
section (1), it shall be lawful for a Planning Authority with A
the approval of the Director of Town Planning and subject
to the provisions of section 68 to provide for suitable
amendment of the Development plan."
25. Section 61 of the MRTP Act deals with the making and 8
publication of draft scheme by means of notice which is
extracted hereunder for easy reference:
"Section 61 - Making and publication of draft scheme
[by means of notice]:-
c
(1) Not later than twelve months from the date of the
declaration, subject, however, to sub-section (3) the
Planning Authority shall, in consultation with the Director
of Town Planning, make a draft scheme for the area in
respect of which the declaration was made, and published D
a notice in the Official Gazette, and in such other manner
as may be prescribed stating that the draft scheme in
respect of such area has been made. The notice shall
state the name of the place where a copy thereof shall be
available for inspection by the public and shall state that E
copies thereof or any extract therefrom certified to be
correct shall be available for sale to the public at a
reasonable price.
(2) If the Planning Authority fails to make a draft scheme
and publish a notice regarding its making within the period F
specified in sub-section (1) or within the period extended
under sub-section (3), the declaration shall lapse, unless
the State Government appoints an Officer to priipare and
submit the draft scheme to the State Government on behalf
of the Planning Authority not later than twelve months from G
the date of such appointment or the extended period under
sub-section (3); but any such lapse of declaration shall not
debar the Planning Authority from making a fresh
declaration any time in respect of the same area.
H
748 SUPREME COURT REPORTS [2012] 12 S.C.R.
A (3) The State Government may, on application made by
the Planning Authority or, as the case may be, the officer,
from time to time by notification in the Official Gazette,
extend the period specified in sub-section (1) or (2) by
such period not exceeding six months as may be specified
B in the notification."
26. The power of State Government to require Planning
Authority to make scheme is provided under Section 63 which
is extracted hereunder:
c "Section 63 - Power of State Government to require
Planning Authority to make scheme:-
(1) Notwithstanding anything contained in this Act, the State
Government may, in respect of any Planning Authority after
D making such inquiry as ii deems necessary, direct that
Authority to make and submit for its sanction, a draft
scheme in respect of any land in regard to which a town
planning scheme may be made after a notice regarding
its making has been duly published in the prescribed
manner.
E
(2) If the Planning Authority fails to make the declaration
of intention to make a scheme within three months from
the date of direction made under sub-section (1 ), the State
Government may by notification in the Official Gazette,
F appoint an officer to ma~e and submit the draft scheme
for the land to the State Government after a notice
regarding its making has been duly published as
aforesaid] and thereupon the provisions of sections 60, 61
and 62 shall, as far as may be applicable, apply to the
G making of such a scheme." .
27. Section 64 provides for contents of draft Scheme which
are as follows:
H
JAYESH DHANESH GORA.GANDHI v. MUNICIPAL CORP. OF 749
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
"Section 64 • Contents of draft scheme:- A
A draft scheme shall contain the following particulars so
far as may be necessary, that is to say,-
(a) the ownership, area and tenure of each original plot;
8
(b) reservation, acquisition or allotment of land required
under sub-clause (i) of clause (b) of section 59 with a
general indication of the uses to which such land is to be
put and the terms and conditions subject to which, such
land is to be put to such uses; c
(c) the extent to which it is proposed to alter the boundaries
of the original plots by reconstitution;
(d) an estimate of the total cost of the scheme and the net
cost to be borne by the Planning Authority; D
(e) a full description of all the details of the scheme with
respect to such matters referred to in clause (b) of section
59 as may be applicable;
(f) the laying out or re-laying out of land either vacant or E
already built upon including areas of comprehensive
development;
(g) the filling up or reclamation of low lying swamp or
unhealthy areas or levelling up of land; F
(h) any other prescribed particulars."
28. Section 65 deals with the reconstituted plot. The same
is also extracted hereunder for easy reference:
G
"Section 65 • Reconstituted plot:-
(1) In the draft scheme, the size and shape of every
reconstituted plot shall be determined, so far as may be,
to render it suitable for building purposes, and where a plot H
750 SUPREME COURT REPORTS [2012] 12 S.C.R.
A is already built upon, to ensure that the buildings as far as
possible comply with the provisions of the scheme as
regards open spaces.
(2) For the purpose of sub-section (1), a draft scheme may
contain proposals--
B
(a) to form a final plot by reconstitution of an original plot
by alteration of the boundaries of the original plot, if
necessary;
c (b) to form a final plot from an original plot by the transfer
wholly or partly of the adjoining lands;
(c) to provide, with the consent of the owners, that two or
more original plots each of which is held in ownership in
severally or in joint ownership shall hereafter, with or
D without alteration of boundaries be held in ownership in
common as a final plot;
(d) to allot a final plot to any owner dispossessed of land
in furtherance of the scheme; and
E
(e) to transfer the ownership of an original plot from one
person to another."
29. Section 67 deals with the objections to draft scheme
which reads as follows:
F
"Section 67 - Objections to draft scheme to be
considered:-
If within thirty days from the date of the publication of notice
regarding the preparation of the draft scheme, any person
G
affected thereby communicates in writing ciny objection
relating to such scheme, the Planning Authority, or the
officer appointed under sub-section (2) of section 61 or
Section 63 shall consider such objection and may, at any
time before submitting the draft scheme to the State
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 751
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.)
Government as hereinafter provided, modify such scheme A
as it or he thinks fit."
30. Section 68 deals with the power of State Government
to sanction draft scheme, the same is extracted for easy
reference:
B
"Section 68 • Power of State Government to sanction
draft scheme:-
(1) The Planning Authority or, as the case may be, the
officer aforesaid shall, not later than six months from the c
date of the publication of the notice in the Official Gazette,
regarding the making of the draft scheme, submit the same
with any modifications which it or he may have made
therein together with a copy of objections received by it
or him to the State Government, and shall at the same time 0
apply for its sanction.
(2) On receiving such application, after making such inquiry
as it may think fit and consulting the Director of Town
Planning, the State Government may, not later than six
months from the date of its submission, notification in the E
Official Gazette, or not later than such further time as the
State Government may extend, either sanction such draft
scheme with or without modifications and subject to such
conditions as it may think fit to impose or refuse to give
sanction. F
(3) If the State Government sanctions such scheme, it shall
in such notification state at what place and time the draft
scheme shall be open to the inspection of the public and
the State Government shall also state therein that copies G
of the scheme or any extract therefrom certified to be
correct shall on application be available for sale to public
at a reasonable price."
31. Section 72 deals with the powers and duties of the
Arbitrator which reads as follows:- H
752 SUPREME COURT REPORTS [2012] 12 S.C.R.
A "Section 72 - Arbitrator; his powers and duties:-
(1) Within one month from the date on which the sanction
of the State Governments to the draft scheme is published
in the Official Gazette, the State Government shall for
purposes of one or more planning schemes received by
B
it for sanction appoint any person possessing such
qualifications as may be prescribed to be an Arbitrator with
sufficient establishment and his duties shall be as
hereinafter provided.
c (2) The State Government may, if it thinks fit at any time,
remove for incompetence or misconduct or replace for any
good and sufficient reason an Arbitrator appointed under
this section and shall forthwith appoint another person to
take his place and any proceeding pending before the
D Arbitrator immediately before the date of his removal or
replacement shall be continued and disposed of by the
new Arbitrator appointed in his place.
(3) In accordance with the prescribed procedure, every
Arbitrator shall,--
E
(i) after notice given by him in the prescribed manner
define, demarcate and decide the areas allotted to, or
reserved, for the public purpose or purposes of the
Planning Authority, and also the final plots;
F
(ii) after notice given by him in the prescribed manner,
decide the person or persons to whom a final plot is to be
allotted; when such plot is to be allotted; and when such
plot is to be allotted to persons in ownership in common,
G
decide the shares of such person;
{iii) estimate the value of and fix the difference between
the values of the original plots and the values of the final
plots included in the final scheme, in accordance with the
provisions contained in clause (f) of sub-section (1) of
H section 97;
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 753
GREATER MUMBAI [KS. RADHAKRISHNAN, J.]
(iv) estimate the compensation payable for the loss of the A
area of the original plot in accordance with the provisions,
contained in clause (f) of sub-section (1) of section 97 in
respect of any original plot which is wholly acquired under
the scheme;
B
(v) determine whether the areas allotted or reserved for the
public purpose or purposes of the Planning Authority are
beneficial wholly or partly to the owners or residents within
the area of the scheme;
(vi) estimate the proportion of the sums payable as C
compensation of each plot used, allotted or reserved for
the public purpose or purposes of the Planning Authority
which is beneficial partly to the owners or residents within
the area of the scheme and partly to the general public,
which shall be included in the cost of the scheme; D
(vii) determine the proportion of contribution to be levied
on each plot used, allotted or reserved for a public
purpose or purposes of the Planning Authority which is
beneficial par11y to the O\'Vners or residents within the area E
of the scheme and partly to the general public;
(viii) determine the amount of exemptions, if any, from the
payment of the contribution that may be granted in respect
of plots or portions thereof exclusively used or occupied
for religious or charitable purposes at the date on which F
the final scheme is drawn up under clause (xviii) of this sub-
section;
(ix) estimate the value of final plots included in the final
scheme and the increment to accrue in respect of such G
plots in accordance with the provisions of section 98;
(x) calculate the proportion in which the increment in
respect of the final plots included in the final scheme shall
be liable to contribution to the cost of the scheme in
H
754 SUPREME COURT REPORTS (2012] 12 S.C.R.
A accordance with the provisions contained in section 97;
(xi) calculate the contribution to be levied on each final plot
included in the final scheme;
(xii) determine the amount to be deducted from or added
B to, as the case may be, the contribution leviable from a
person in accordance with the provisions contained in
section 100;
(xiii) provide for the total or partial transfer of any right in
c an original plot to a final plot or provide for the extinction
of any right in an original plot in accordance with the
provisions contained in section 101 ;
(xiv) estimate the amount of compensation payable under
section 66;
D
(xv) where a plot is subject to a mortgage with possession
or a lease, decide the proportion of compensation payable
to or contribution payable by the mortgagee or lessee on
one hand and the mortgagor or lessor on the other;
E
(xvi) estimate in reference to claims made before him,
after the notice given by him in the prescribed manner, the
compensation to be paid to the owner of any property or
right injuriously affected by the making of a town planning
scheme in accordance with the provisions contained in
F
section 102;
(xvii) determine the period in which the works provided in
the scheme shall be completed by the Planning Authority;
G (xviii) draw in the prescribed form the final scheme in
accordance with the draft scheme:
Provided that--
(a) he may make variations from the draft scheme;
.H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 755
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
(b) he may with the previous sanction of the State A
Government after hearing the Planning ~uthority and any
owners who may raise obje'ctions make substantial
variations in the draft scheme.
Explanation,--For the purpose of sub-clause (b) of this B
proviso, "substantial variation" means increase in the total
cost of the draft scheme by more than 20 per cent. or two
lacs of rupees whichever is higher, on account of the
provision of new works or the reservation of additional
sites for public purposes included in. the final scheme C
drawn up by the Arbitrator.
(4) The Arbitrate( shall decide all matters referred to in sub-
section (3) within a period of twelve months from the date
of his appointment; and in the case of an Arbitrator
appointed under the Bombay Town Planning Act, 1915 D
(Born. I of 1915) or a Town Planning Officer appointed
under the Bombay Town Planning Act, 1954 (Born. XX.VII
of 1955) (whose appointment is continued under section
165), within a period of twelve months from the date of
c<>mmencement of this Act : E
Provided that, the State Government may, if it thinks fit,
· whether the said period has expired or not, and whether
all the matters referred to in sub-section (3) have been
decided or not, extend from time to time by a notification
in the Official Gazette, the period for deciding all the F
matters referred to in that sub-section (3) or any extended
period therefor."
32. Section74 deals with the Appeal, as provided against
the award of the Arbitrator which reads as follows: G
"Section 74 - Appeal:-
(1) Any decision of the Arbitrator under clauses (iv) to (xi),
(both inclusive) and clauses (xiv), (xv) and (xvi) of sub-
section (3) of section 72 shall be forthwith communicated H
··~.
756 SUPREME COURT REPORTS [2012) 12 S.C.R.
A to the party concerned including the Planning Authority;
and any party aggrieved by such decision may, within two
months from the date of communication of the decision,
apply to the Arbitrator to make a reference to the Tribunal
of Appeal for decision of the appeal.
B
(2) The provisions of sections 5, 12 and 14 of the Indian
Limitation Act, 1963 (36 of 1963) shall apply to appeals
submitted under this section.'
33. Section 86 deals with sanction by State Government
C to final scheme which reads as follows:
"Section 86 - Sanction by State Government to final
scheme:-
(1) The State Government may, within a period of four
D months from the date of receipt of the final scheme under
section 82 from the Arbitrator or within such further period
as the State Government may extend, by notification in the
Official Gazette, sanction the scheme or refuse to give
such sanction provided that, in sanctioning the scheme the
E State Government may make such modifications as may
in its opinion be necessary, for the purposes of correcting
an error, irregularity or informality.
(2) If the State Government sanctions such scheme, it shall
F state in the notification--
(a) the place at which the final scheme is kept open to
inspection by the public and also state therein that copies
of the scheme or extracts therefrom certified to be correct
shall, on application, be available for sale-to the public at
G a reasonable price;
(b) a date (which shall not be earlier than one month after
the date of the publication of the notification) on which all
the liabilities created by the scheme shall take effect and
H the final scheme shall come into force:
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 757
GREAlER MUMBAI [KS. RADHAKRISHNAN, J.]
Provirfed that, the State Government may, from time to A
time, postpone such date, by notification in the Official
Gazette, by such period, not exceeding three months at a
time as it thinks fit.
(3) On and after the date fixed in such notification, a town B
planning scheme shall have effect as if it were enacted in
this Act."
34. Section 88 deals with the effect of final scheme which
reads as follows:
c
"Section 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 D
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 E
shall become subject to the rights settled by Arbitrator;
(c) the Planning Authority shall handover possession of the
final plots to the owners to whom they are allotted in the
final scheme."
F
35. The Town Planning Scheme envisaged under the
MRTP Act is, therefore, a code by itself and the provisions
relating to compensation are inbuilt in the scheme itself.
Provisions of Town Planning scheme provide for computation
of compensation by the Arbitrator and if a party is aggrieved G
by the determination of compensation by the arbitrator, a party
has a right of appeal before the Tribunal under the provisions
of the MRTP Act. On the final scheme being sanctioned by the
State Government under Section 88(a). the property vests free
of all encumbrances in the State Government and all rights of H
758 SUPREME COURT REPORTS [2012] 12 S.C.R.
A the original holders in the original plot of land stand
extinguished, the rights of the parties are those governed by
the provisions of the said scheme and cannot be dealt with
outside the scheme.
36. We have already noticed that, after coming into force
8
the MRTP Act, the Corporation had informed the legal heirs
about the reservation of the property in question for publtc
purpose. Legal heirs then appeared before the Arbitrator and
objections were filed before the Arbitrator objecting the
reservation of property in question for municipal office. The
C Arbitrator rejected the objections raised by the legal heirs and
passed an award on 09.06.1973 in conformity with the draft
scheme under Section 72(3)(xviii) of the MRTP Act. The
Arbitrator has also awarded the compensation and, aggrieved
by the same, we have already indicated, legal heirs preferred
D an appeal under Section 74 of the MRTP Act which was
dismissed by the Tribunal. However, the rate of compensation
was enhanced from Rs.15.60 to Rs.21.53 per sq. mtr.
Following all those statutory provisions, the Government of
Maharashtra finally accorded sanction for the scheme in
E exercise of powers conferred under Section 86 of the MRTP
Act. The effect and consequence of the final scheme has been
provided under Section 88 of the MRTP Act. Therefore, once
the final Town Planning Scheme has been in force and vesting
of the land on the Town Planning authority takes place as
F provided under Section 88(a) of the Act.
37. We find that all the above-mentioned procedures have
already been followed in the instant case resulting in vesting
of the plot in question in the Planning Authority under Section
G 88(a) of the MRTP Act and the amount of compensation was
also paid. The appellant contends that in spite of the fact that
the plot stood vested in the Government or Town Planning
Authority under Section 88(a) of the MRTP Act, even then the
procedure prescribed under Chapter VII will have to be followed
H including Section 126 of the MRTP Act.
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 759
GREATER MUMBAI [KS. RADHAKRISHNAN, J.)
38. Appellant submits that even though there can be a A
provision of reservation and/or compensation under the Town
Planning Scheme of any portion of the land vested on the Town
Planning Authority, for the purposes of determining
compensation, the State Government has to follow the
procedure prescribed under Section 126(2) of the Act and B
proper compensation be paid under provisions of the Land
Acquisition Act. It was further submitted that the vesting provided
under Section 88(a) on final scheme being sanctioned by State
Government, would be subject to computation of compensation
as contemplated under Sections 126(2) and (3) of the Act. c
Even though, in the earlier part of the judgment, we have
referred to Sections 125 and 126, it would be appropriate to
extract both the sections in its entirety to appreciate the
contentions raised by the appellant.
Section 125 - Compulsory acquisition of land, D
needed for purposes of Regional plan, Development
plan or Town planning schemes, etc.:-
Any land required, reserved or designated in a Regional
plan, Development plan or Town Planning Scheme for a E
public purpose or purposes including plans for any area
of comprehensive development or for any new town shall
be deemed to be land needed for a public purpose within
the meaning of the Land Acquisition Act, 1894 (I of 1894).
Section 126 - Acquisition of land required for public F
purposes specified in plans:-
(1) Where after the publication of a draft Regional Plan, a
Development or any other plan or Town Planning Scheme,
any land is required or reserved for any of the public G
purposes specified in any plan or scheme under this Act
at any time the planning Authority, Development Authority,
or as the case may be, any Appropriate Authority may,
expect as otherwise provided in section 113A acquire the
~~ H
760 SUPREME COURT REPORTS [2012] 12 S.C.R.
A (a) by agreement by paying an amount agreed to, or
(b) in lieu of any such amount, by granting the land-owner
or the lessee, subject, however, to the lessee paying the
lessor or depositing with the Planning Authority,
Development Authority or Appropriate Authority, as the
B
case may be, for payment to the lessor, an amount
equivalent to the value of the lessor's interest to be
determined by any of the said Authorities concerned on
the basis of the principles laid down in the Land
Acquisition Act, 1894 (I of 1894), Floor Space Index (FSI)
c or Transferable Development Rights (TOR) against the
area of land surrendered free of cost and free from all
encumbrances, and also further additional Floor Space
Index or Transferable Development Rights against the
development or construction of the amenity on the
D surrendered land at his cost, as the Final Development
Control Regulations prepared in this behalf provide, or
(c) by making an application to the State Government for
acquiring such land under the Land Acquisition Act, 1894
E (I of 1894), and the land (together with the amenity, if any
so developed or constructed) so acquired by agreement
or by grant of Floor Space Index or additional Floor Space
Index or Transferable Development Rights under this
section or under the Land Acquisition Act, 1894 (I of
F 1890), as the case may be, shall vest absolutely free from
all encumbrances in the Planning Authority, Development
Authority, or as the case may be, any Appropriate
Authority.
(2) On receipt of such application, if the State Government
G is satisfied that the land specified in the application is
needed for the public purpose therein specified, or if the
State Government (except in cases falling under section
49 and except as provided in section 113A) itself is of
opinion) that any land included in any such plan is needed
H for any public purpose, it may make a declaration to that
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 761
GREATER MUMBAI [KS. RADHAKRISHNAN, J.]
effect in the Official Gazette, in the manner provided in A
section 6 of the Land Acquisition Act, 1894 (I of 1894), in
respect of the said land. The declaration so published
shall, notwithstanding anything contained in the said Act,
be deemed to be a declaration duly made under the said
section: B
Provided that, subject to the provisions of sub-section (4),
no such declaration shall be made after the expiry of one .
year from the date of publication of the draft Regional Plan,
Development Plan or any other Plan, or Scheme, as the C
case may be.
(3) On publication of a declaration under the said section
6, the collector shall proceed to take order for the
acquisition of the land under the said Act; and the
provisions of that Act shall apply to the acquisition of the D
said land with the modification that the market value of the
land shall be,-
(i) where the land is to be acquired for the purposes of a
new town, the market value prevailing on the date of E
publication of the notification constituting or declaring the
Development Authority for such town;
(ii) where the land is acquired for the purposes of a Special
Planning Authority the market value prevailing on the date
of publication of the notification of the area as F
undeveloped area; and
(iii) in any other case the market value on the date of
publication of the interim development plan, the draft
development plan or the plan for the area or areas for G
comprehensive development, whichever is earlier, or as
the case may be, the date or publication of the draft Town
Planning Scheme:
Provided that, nothing in this sub-section shall affect the H
•
762 SUPREME COURT REPORTS [2012] 12 S.C.R.
A date for the purpose of determining the market value of
land in respect of which proceedings for acquisition
commenced before the commencement of the
Maharashtra Regional and Town Planning (Second
Amendment) Act, 1972 (Mah. XI of 1973):
B
Provided further that, for the purpose of clause (ii) of this
sub-section, the market value in respect of land included
in any undeveloped area notified under sub-section (1) of
section 40 prior to the commencement of the Maharashtra
Regional and Town Planning (Second Amendment) Act,
c 1972 (Mah. XI of 1973), shall be the market value prevailing
on the date of such commencement.
(4) Notwithstanding anything contained in the proviso to
sub-section (2) and sub-section (3), if a declaration, is not
D made, within the period referred to in sub-section (2) (or
having been made, the aforesaid period expired on the
commencement of the Maharashtra Regional and Town
Planning (Amendment) Act, 1993 (Mah. X of 1994))], the
State Government may make a fresh declaration for
E acquiring the land under the Land Acquisition Act, 1894 (I
of 1894), in the manner provided by sub-sections (2) and
(3) of this section, subject to the modification that the
market value of the land shall be the market value at the
date of declaration in the Official Gazette, made for
F acquiring the land afresh.
39. This Court had occasion to consider the scope of
provisions of the Bombay Town Planning Act in State of
Gujarat v. Shanti/al Mangaldas and Others AIR 1969 SC 634.
Though there was no provision similar to Section 126
G prescribing for payment of compensation following the Land
Acquisition Act in the Bombay Town Planning Act, Section 53
of the Bombay Town Planning Act is in pari materia with
Section 88 of the MRTP Act. In that case, placing reliance on
judgment of this Court in P. Vajravelu Muda/iar v. Special
H Deputy Collector, Madras and Another [(1965) 1 SCR 614],
-~-·
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 763
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
it was contended that Section 53 (similar to Section 88 of the A
MRTP Act) and Section 67, in any event, infringed Article 14
of the Constitution of India and were on that account void.
Repealing the contention, the court in Shantilal Mangaldas held
as follows:
B
"There is no option under that Act to acquire the land either
under the Land Acquisition Act or under the Town Planning
Act. Once the draft town planning scheme is sanctioned,
the land becomes subject to the provisions of the Town
Planning Act, and on the final town planning scheme being
sanctioned by statutory operation the title of the various C
owners is readjusted and the lands needed for a public
purpose vest in the local authority. Land required for any
of the purposes of a town planning scheme cannot be
acquired otherwise than under the Act, for it is a settled
rule of interpretation of statutes that when power is given D
under a statute to do a certain thing in a certain way, the
thing must be done in that way or not. Taylor Vs. Taylor,
(1875) 1 ChD 426. Again it cannot be said that because·
it is possible for the State, if so, minded, to acquire lands
for a public purpose of a local authority, the statutory effect E
given to a town planning scheme results in discrimination
between persons similarly circumstanced. In P. Vajravelu
Mudaliar's case (1965) 1 SCR 614, the Court struck down
the acquisition on the ground that when the lands are
acquired by the State Government for a housing scheme F
under the Madras Amending Act, the claimant gets much
smaller compensation than the compensation he would get
if the land or similar lands were acquired for the same
public purpose under the Land Acquisition Act, 1894. It
was held that the discrimination between persons whose G
lands were acquired for housing schemes and those
whose lands were acquired for other public purposes
could not be sustained on any principle of reasonable
classification founderl on intelligible differentia which a
rational relation to the object sought to be achieved. One H
764 SUPREME COURT REPORTS [2012] 12 S.C.R.
A broad ground of distinction between P. Vajravelu
Mudaliar's case (1965) 1 SCR 614 and this case is clear,
the acquisition was struck down in P. Vajravelu Mudaliar's
case (1965) 1 SCR 614 because the State Government
could resort to one of the two methods of acquisition the
B Land Acquisition Act, 1894 and the Land Acquisition
(Madras Amendment) Act, 1961 and no guidance was
given by the Legislature about the statute which should be
resorted to in a given case of acquisition for a housing
scheme. Power to choose could, therefore, be exercised
c arbitrarily. Under the Bombay Town Planning Act, 1955,
there is no acquisition by the State Government of land
needed for a town planning scheme. When the Town
Planning Scheme comes into operation the land needed
by a local authority vests by virtue of S.53(a) and that
vesting for purposes of the guarantee under Article 31 (2)
D
is deemed compulsory acquisition for a public purpose.
To lands which are subject to the scheme, the provisions
of Sections 53 and 67 apply, and the compensation is
determined only in the manner prescribed by the Act.
There are therefore two separate provisions, one for
E acquisition by the State Government, and the other in which
the statutory vesting of land operates as acquisition for the
purpose of town planning by the local authority. The State
Government can acquire the land under the Land
Acquisition Act, and the local authority only under the
IF Bombay Town Planning Act. There is no option to the local
authority to resort to one or the other of the alternative
methods which result in requisition. The contention that the
provisions of Sections 53 and 67 are invalid on the ground
that they deny the equal protection of the laws or equality
G before the laws must, therefore, stand rejected."
40. It was also urged in that case that 'vesting' under
Section 53 (section 88 of the present Act) is not a valid vesting
because the Government cannot expropriate property of a
H
JAYESH OHANESH.GORAGANDHI v. MUNICIPAL CORP. OF 765
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
citizen without providing compensation in respect thereof. The A
Court held n follows:
"26. The principal argument which found favour with the
High Court in holding Secfion 53 ultra vires, is that when
a plot is reconstituted and out of that plot a smaller area 8
is given to the owner and the remaining is utilized vests in
the local authority for a public purpose, and since the Act
does not provide for giving compensation which is a just
equivalent of the land expropriated at the date of extinction
of interest the guaranteed right under Article 31 (2) is
infringed. While adopting that reasoning, counsel for the C
first respondent adopted another line of approach also.
Counsel contended that under the scheme of the Act the
entire area of the land belonging to the owner vests in the
local authority, and when the final scheme is framed in lieu
of the ownership of the original plot, the owner is given a D
reconstituted plot by the local authority and compensation
in money is determined in respect of the land appropriated
to public purposes according to the rules contained in
Secs. 67 and 71 of the Act. Such a scheme for
compensation is, it was urged, inconsistent with the E
guarantee under Article 31(2) for two reasons - (1) that
compensiltion for the entire land is not provided; and (2)
that payment of compensation in money is not provided
even in respect of land appropriated to public use. The
second branch of the argument is not sustainable for F
reasons already set out, and the first branch of the
argument is wholly without substance. Section 53 does not
provide that the reconstituted plot is transferred or is to be
deemed to be transferred from the local authority to the
owner of the original plot. In terms Section 53 provides for G
statutory re-adjustmerit of the rights of the owners of the
original plots of land. When the scheme comes into force
all rights in the original plots are extinguished and •
simultaneously therewith ownership springs in the
reconstituted plots. There is no vesting of the original plots H
766 SUPREME COURT REPORTS [2012] 12 S.C.R.
A in the local authority nor transfer of the rights of the local
authority in the reconstituted plots. A part or even the
whole plot belonging to an owner may go to form a
reconstituted plot which may be allotted to another person,
or may be appropriated to public purposes under the
B scheme. The source of the power to appropriate the whole
or part of the original plot in forming a reconstituted plot is
statutory. It does not predicate ownership of the plot in the
local authority and no process - actual or notional - of
transfer is contemplated in that appropriation. The lands
c covered by the scheme are subjected by the Act to the
power of the local authority to readjust titles, but no
reconstituted plot vests at any stage in the local authority
unless it is needed for a purpose of the authority. Even
under clause (a) of section 53 the vesting in a local
authority of land required by it is on the coming into force
D
of the scheme. The concept that lands vest in the local
authority when the intention to a make a scheme is notified
is against the plain intendment of the Act."
41. The provisions of Bombay Town Planning Act again
E came up for consideration before this Court in Prakash
Amichand Shah v. State of Gujarat and Others; 1986 (1) SCC
581 wherein this Court again examined the provisions of the
Bombay Town Planning Act, particularly the provisions of
Sections 53 and 67 to 71, which deal with the Scheme and
F consequential acquisition. The Court held that the acquisition
of land under the Town Planning Scheme by the local authority
.under Section 53 cannot be said to be discriminatory or
offending the equality clause on the ground that the local
authority has an option to acquire the land under the Land
G Acquisition Act, 1894 which is a more favourable method of
acquisition as regards the land owner. In Zandu
Pharmaceutical Worl<s Ltd. v. G.J. Desai [1969 UJ (SC) 575]
the Court, while dealing with the provisions of the above-
mentioned Act, observed as follows:
H
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 767
GREATER MUMBAI [KS. RADHAKRISHNAN, J.]
"When the Town Planning Scheme comes into operation A
the land needed by a local authority vests by virtue of
Section 53(a) and that vesting for purposes of the
guarantee under Art. 31 (2) is deemed compulsory
acquisition for a public purpose. To lands which are subject
to the scheme, the provisions of Sections 53 and 67 apply, B
and the compensation is determined only in the manner
prescribed by the Act. There are therefore two separate
provisions one for the acquisition by State Government and
the other in which the statutory vesting of land operates as
acquisition for the purpose of town planning by the local c
authority. The State Government can acquire the land
under the Land Acquisition Act, and the local authority only
under the Bombay Town Planning Act. There is no option
to the local authority to resort to one or the other of the
alternative methods which result in acquisition. Hence the
0
provisions of Sections 53 and 67 are not invalid on the
ground that they deny equal protection of the loss or
equality before laws."
19. In order to appreciate the contentions of the appellant
it is necessary to look at the object of the legislation in E
question as a whole. The object of the Act is not just
acquiring a bit of land here or a bit of land there for some
public purpose. It consists of several activities which have
as their ultimate object the orderly development of an urban
area. It envisages the preparation of a development plan, F
allocation of land for various private and public uses,
preparation of a Town Planning Scheme and making
provisions for future development of the area in question.
The various aspects of a Town Planning Scheme have
already been set out. On the final Town Planning Scheme G
coming into force under section 53 of the Act there is an
automatic vesting of all lands required by the local authority
unless otherwise provided, in the local authority. It is not a
case where the provisions of the Land Acquisition
H
768 SUPREME COURT REPORTS [2012] 12 S.C.R.
A Act, 1894 have to be set in motion either by the Collector
or by the Government."
42. In this connection, we may also refer to the judgment
of this Court in Nagpur Improvement Trust and Another v.
Vithal Rao and Others [AIR 1973 SC 689]. In that case this
8
Court held that the Government can acquire the land for a
housing accommodation scheme either under the Land
Acquisition Act or under the Improvement Act. The Court held
that ii enables the State Government to discriminate between
one owner equally situated from another owner.
c
43. The scope of various provisions in Chapter VII of the
MRTP Act itself came up for consideration before this Court in
Laxminarayan R. Bhattad and Others v. State of Maharashtra
and Another [(2003) 5 SCC 413]. In that case, the petitioner
o claimed an entitlement of TOR in lieu of compensation which
he was claiming under the provision of Section 126 of the
MRTP Act. Rejecting the contention, this Court held as follows:
"61. The State while granting sanction could have modified
the Scheme prepared by the Arbitrator. While doing so it
E was permissible for the State to make any modification
with the Arbitrator's Scheme stating that TOR in lieu of
compensation would be granted. Having .not said so it is
not for the appellant to contend that the State would be
bound by its purported directives despite statutory
F interdicts contained in Section·86 and 88 of the Act.
62. In view of our findings aforementioned the third reason
assigned by the Corporation must also be upheld. We may
notice that the appellant herein has given up the question
G of applicability of Rule 10(2) before the High Court. The
High Court in its impugned judgment recorded "we may
add that under Rule 10(2) of the O.C. Rules of 1967,
additional FSI in lieu of the compensation was provided
in certain cases. There, is however, no dispute that
H petitioners were not eligible for grant of additional FSI
JAYESH DHANESH GORAGANDHI. v. MUNICIPAL CORP. OF 769
GREATER MUMBAI [K.S. RADHAl<RISHNAN, J.]
under the said Rule 10(2) inasmuch as the original plot A
belonging to the petitioners or any part thereof did not form
part of the final plots which were allotted to them nor were
the plots allotted to the petitioners affected by the road."
63. A legal right to have an additional FSI or TDR can be B
claimed only in terms of a statute or statutory regulations
and not otherwise.
64. By reason of the provisions contained in Section 88
of the Act, original plot No. 433 vested in the State whereas
the final plots Nos. 694 and 713 became the property of C
the appellants. Title on the land having been conferred
under a statute, it is idle to contend that there is no
automatic vesting.
65. Reliance placed by Mr. Devarajan on State of Gujarat D
(supra) is misplaced. In that case the question which arose
for consideration related to a draft Scheme sanctioned by
the Government on 17th August. 1942 under the Bombay
Town Planning Act, 1915. The Sche.me which had
commenced under the 1915 Act continued under the E
Bombay Town Planning Act, 27of1955. The Respondents'
land was acquired under the Scheme where after the plot
was reconstituted into two, one each reserved for the
respondent and the local authority respectively. A
compensation was awarded for reservation of the said
land in the local authority on the basis of market value as F
on 18th April, 1927. The said order having been
questioned, construction of Section 53 of the Bombay
Town Planning Act came up for consideration. This Court
held:
G
"27. The principal argument which found favour with the
High Court in holding Section 53 ultra vires is that when a
plot is reconstituted and out of that plot a smaller area is
• given to the owner and the remaining area is utilised for
.Public purpose, the area so utilised vests in the local H
770 SUPREME COURT REPORTS [2012) 12 S.C.R.
A authority for a pubic purpose, and since the Act does not
provide for giving compensation which is a just equivalent
of the land expropriated at the date of extinction of interest,
the guaranteed right under Article 31 (2) is infringed. While
adopting that reasoning counsel for the first respondent
B adopted another line of approach also. Counsel contended
that under the scheme of the Act the entire area of the land
belonging to the owner vests in the local authority, and
when he final scheme is framed, in lieu of the ownership
of the original plot, the owner is given a reconstituted plot
c by the local authority, and compensation in money is
determined in respect of the land appropriated to public
purposes according to the rules contained in Sections 67
and 71 of the Act. Such a scheme for compensation is, it
was urged, inconsistent with the guarantee under Article
31 (2) for two reasons - (1) that compensation for the entire
D
land is not provided; and (2) that payment of compensation
in money is not provided even in respect of land
appropriated to public use. The second branch of the
argument is not sustainable for reasons already set out,
and the first branch of the argument is wholly without
E substance. Section 53 does not provide that the
reconstituted plot is transferred or is to be deemed to be
transferred from the local authority to the owner of the
original plot. In terms Section 53 provides for statutory re-
adjustment of the rights of the owners of the original plots
F of land. When the scheme comes into force all rights in the
original plots are extinguished and simultaneously therewith
ownership springs in the reconstituted plots. There is no
vesting of the original plots in the local authority nor transfer
of the rights of the local authority in the reconstituted plots.
G A part of even the whole plot belonging to an owner may
go to from a reconstituted plot which may be allotted to
another person, or may be appropriated to public purposes
under the scheme. The source of the power to appropriate
the whole or a part of the original plot in forming a
H reconstituted plot is statutory. It does not predicate
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 771
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.)
ownership of the plot in the local authority, and no process A
- actual or notional - of transfer is contemplated in that
appropriation. The lands covered by the scheme are
subjected by the Act to the power of the local authority to
re-adjust titles, but no reconstituted plots vests at any stage
in the local authority unless it is needed for a purpose of B
the authority. Even under Clause (a) of Section 53 the
vesting in a local authority of land required by it is on the
coming into force of the scheme. The concept than lands
vest in the local authority when the intention to make a
scheme is notified is against the plain intendment of the c
Act."
66. The observations of this Court to the effect that there
was no vesting of the original plots in the local authority
nor was there any .question of transfer of the rights in the
reconstituted plots, were made having regard to the D
arguments made therein that the entire original plot as
such vested in the local authority. This Court held that right
in the original plot extinguished and the ownership in the
reconstituted plot stood transferred only with the coming
into force the Scheme and not prior thereto. In that case, E
the Scheme was held to be intra vires Article 31 of the
Constitution.
67. Furthermore in this case the original plot and the
reconstituted plot is not the same as was the case in the F
State of Gujarat v. Shanti/a/ Manga/das (1969) 1 SCC
509.
68. In terms of the provisions of the Act, the statutory
vesting took place only upon sanctioning of the Scheme
in terms of Section 88 thereof and not prior thereto, G
wherefor the amount of compensation as determined by
the Arbitrator would be payable to the appellants".
(Emphasis supplied)
H
772 SUPREME COURT REPORTS [2012] 12 S.C.R.
A 44. Judgments referred to above as well as the judgment
in Laxminarayan (supra) would clearly indicate that the scheme
of town planning under the MRTP Act is a code by itself, which
has a provision for determination of compensation, right of
appeal, dispute resolution mechanism etc. On a detailed survey
B of the provisions of the MRTP Act and the related judgments
interpreting the provisions of the Bombay Town Planning Act
and the MRTP Act, it may be noted that the provisions of
scheme contained in Chapter V of the t\ct is a self operative
scheme by itself.
c 45. The Town Planning Scheme, as per the Act, is meant
for planned developments of certain local areas depending on
various factors in order to make available utilities and facilities
to the general public in the said area. For the purpose of said
Town Planning Schemes, various facilities, utilities and services
D are required to be provided for which certain lands are
required. These Town Planning Schemes are for immediate
need of the community and not for acquisition on deferred basis
and therefore these sections under Chapter V provide a
machinery to prepare and develop the area and implement
E such schemes in presenti. These schemes are not for' future
projections but for making available resources at the immediate
time. In view of these circumstances, the lands required for
implementation of various utilities and facilities, services of any
public need and requirement would be for a public purpose and
F therefore the same have to be made available the Government
immediately so as to implemeni the scheme.
46. Once the town planning scheme is finally sanctioned
under Section 86, compensation is finally determined by the
G Arbitrator, the property vests under Section 88 in the State
Government, then there is no question of resorting to further
acquisition under Section 126(2) of the Act. The words "town
planning scheme" used in Section 126(2) is in respect of th~
town planning scheme which is yet to be finalized and
H sanctioned under Section 86 by the State Government as a
:> JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP OF 773
GREATER MUMBAI [K.S. RADHAKRISHNAN, J.]
final scheme for inviting objections under Section 67 of the Act. A
Provisions of Section 126(2) providing for acquisition of land,
therefore will apply only prior to the town planning scheme is
finally sanctioned under the provision of Section 86 of the Act.
47. We therefore hold that the provisions of Section 126 8
can apply only when the scheme is not sanctioned and the
amount of compensation has not been determined by the
Arbitrator. Therefore, in cases where town planning scheme is
already sanctioned and the property vests in the State
Government under Section 88 (a) of the Act, the question of C
resorting to Section 126(2) of the Act does not arise.
48. We also reject the contention that under the scheme,
if any property is acquired by the Planning Authority and if it is
required for the beneficial use of the persons, it is only then that
the Arbitrator can fix the compensation and pass the award. If D
the property is taken over by the Planning Authority for the
construction of its office and all civic amenities can be provided
by the Planning Authority and if the office of the authority is
located in an area where the scheme has been framed then it
would be beneficial to the public as well. Since, it is also for a E
public purpose covered by the scheme, the contention that the
area earmarked for the Town Planning Authority can be
acquired only by following Section 126 of the Act, has no basis.
49. We find from the facts of the case that after completing
the procedure under Chapter V, compensation was offered and F
paid to the appellant and the appeal preferred by the appellant
was also dismissed by the Tribunal and therefore further
acquisition of land under Section 126 does not arise. The High
Court in our view has c;orrectly interpreted the provisions of the
Act which calll for no interference. The appeals are, therefore, G
dismissed without any order as to costs.
B.B.B. Appeals dismissed.
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