# JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORPORATION OF GREATER MUMBAI & ORS

- **Citation:** [2012] 12 S.C.R. 727
- **Court:** Supreme Court of India
- **Decided:** 2012-12-04
- **Case number:** Civil Appeal Nos.8708-09 of 2012
- **Bench:** K.S .. Radhakrishnan, Dipak Misra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jayesh-dhanesh-goragandhi-v-municipal-corporation-of-greater-mumbai-ors-28365
- **Pages:** 47

## Headnote

Maharashtra Regional and Town Planning Act, 1966 -
A
B
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 the
I
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.
8 Provisions of Town Planning scheme provide for
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] [757F-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 objec

## Text

_Characters 0–39,139 of 88,666. This is a partial read: ask again with offset=39139 for what follows._

[2012] 12 S.C.R. 727
JAYESH DHANESH GORAGANDHI
v.
MUNICIPAL CORPORATION OF GREATER MUMBAI &
ORS.
(Civil Appeal Nos.8708-09 of 2012)
DECEMBER 4, 2012
[K.S .. RADHAKRISHNAN AND DIPAK MISRA, JJ.]
Maharashtra Regional and Town Planning Act, 1966 -
A
B
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 the
I
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.
8 Provisions of Town Planning scheme provide for
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] [757F-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
8 143: 2001 (2) Suppl. SCR 50; Shri Rangaswami, Textile
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]
E
Case Law Reference:
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
1973 (3) SCR 39
2003 (3) SCR 409
referred to
referred to
referred to
Para 41
A
Para 42
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
K.S. RADHAKRISHNAN, J. 1. Leave granted.
2. The question that has come up for consideration before
E
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.
G
H
The special leave petition is, accordingly, disposed of.'
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:
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
A
B
c
D
E
F
G
H
736
SUPREME COURT REPORTS
[2012] 12 S.C.R.
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
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
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
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
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
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
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
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.
(10) In 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
8 Court dated 6.5.2005 had attained finality. Liberty was,
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
0
in respect of the Town Planning Schemes. Learned ,senior
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,
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(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 7 41
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
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[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
7 43
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."
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:
'
G
H
A
B
c
D
E
F
G
H
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SUPREME COURT REPORTS
[2012] 12 S.C.R.
"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
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
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.
(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
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
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
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
JAYESH DHANESH GORAGANDHI v. MUNICIPAL CORP. OF 7 45
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.
(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.
(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
E
F
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
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[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
8 by Chapter V of the MRTP Act. Section 59 deals with
preparation and contents of town planning scheme which reads
as follows:
c
D
E
F
G
"Section 59 • Preparation and contents of town
planning scheme
(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,
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-
(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;
(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
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]:-
(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
c
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.