JUDGMENT
A.P. Deshpande, J.
1. The petitioners claim to be the owners of land bearing Survey No. 431/ B, admeasuring 2 acres, situated at Mehrun, within the municipal limits of Municipal Council, Jalgaon. The petitioner Nos. 5 to 7 claim to be the owners of adjoining land, bearing Survey No.431 /A-1, 2 and 3, admeasuring 2 acres. In the year 1974, the respondent No. 1, Jalgaon Municipal Council, had declared its intention to prepare a Town Planning Scheme No. 3 for development of an area, covering both the survey numbers, owned by the petitioners. Under the said scheme, the land bearing Survey No. 431 /B was allotted Plot No. 288 and earmarked as Reservation No. 107, for public purpose, namely ‘Garden’. Plot No. 431/A-1, 2 and 3, was also reserved in the said Town Planning Scheme No. 3 for the purpose of Library, Maternity Home and Dispensary and was allotted plot No. 287 and earmarked as reservation Nos. 104 and 105. The lands in question were agricultural lands, at the relevant time.
2. The Municipal Council, Jalgaon, published Draft Development Plan on 15.12.1971. The said plan was sanctioned by the Government and after complying with the provisions of the Act, final Draft Development Plan came into operation on 16.12.1974. The Draft Development Plan, so also, the Final Development Plan provided for the same public purpose for which the concerned plots were reserved in the Town Planning Scheme i.e. garden, library, maternity home and dispensary. The Revised Development Plan came to be submitted to the Government on 1.3.1988 and it was sanctioned by the State on 6.1.1993. It may be stated that in the Revised Development Plan, the reservation for the public purpose is designated as ‘Civic Centre’. The Draft Town Planning Scheme was sanctioned by the Government on 9.9.1976. The Arbitrator submitted the Final Town Planning Scheme to the Government for sanction on 5.10.1988 and the Government granted sanction to the Final Town Planning Scheme on 31.5.1993.
3. It is the case of the petitioners that the Planning Authority had resolved to dereserve the land from the Development Plan earmarked for public purpose vide Resolution dated 15.9.1971. However, no further steps were taken and the lands continued to be earmarked for public purpose. In this regard, the Planning Authority has submitted that the Draft Development Plan was first time published by the Municipal Council on 15.12.1971 and hence any resolution passed by the Municipal Council prior to the said date viz. 15.12.1971 would have no bearing on the proceedings under the M.R.T.P. Act. The said Resolution dated 15.12.1971 in this view of the matter, would be wholly inoperative. The petitioner also claimed to have made representations for deletion of lands from reservation but the request was not acceded to. It is the case of the petitioners that in the year 1984, the Municipal Council had submitted a proposal for deletion of the reservation from the Development Plan. Perusal of the affidavit in reply filed by the respondents clearly reveals that the said proposal was rejected by the State Government.
The fact remains that the lands in question were reserved and earmarked for public purpose in the Development Plan and it continued to be so. The said lands were also included in the Town Planning Scheme for public purpose, as indicated hereinabove for Garden, Maternity Home, Dispensary and Library.
The petitioners claim that the lands be deleted from reservation from the Town Planning Scheme, so also, from the Development Plan. It is next prayed that the petitioners had taken steps under Section 127 of the Maharashtra Regional Town Planning Act, 1966, (hereinafter referred to as “the M.R.T.P. Act” for the sake of brevity), by serving notice on the Planning Authority on 7-10-1986 and as no steps are taken for acquisition by the Planning Authority, it be declared that the reservation has lapsed. In the submission of the petitioners, the petitioners, at any rate, would be entitled to compensation to be determined, according to the provisions of the Land Acquisition Act, in view of Section 126 of the Act.
4. The Planning Authority, i.e. the Municipal Council has filed its affidavit in reply. The stand of the Municipal Council is, that as the lands are reserved for public purpose in the Town Planning Scheme, Section 127 of the Act has no application whatsoever and the reservation cannot lapse, despite the notice served by the petitioners under the said section. It is then contended that once a property is covered under the Town Planning Scheme, there is no question of applicability of Section 126 of the Act and the compensation has to be determined by the Arbitrator, under the provisions contained in Chap. V of the Act. In the submission of the learned Counsel Shri Gunale, appearing for the respondent No. 1, Chap. Vis a complete Code in itself and deals with all the aspects of the matter in regard to the properties covered by the Town Planning Scheme and hence, application of Section 126 stands excluded. In his submission, petitioners’ lands vest absolutely in the Planning Authority, by virtue of Section 88 itself and hence, it is illogical for the petitioners to contend that proceedings under Section 126 of the Act, or the provisions of the Land Acquisition Act need to be resorted to, for acquisition of the lands. It is further contended by the Municipal Council that the advance possession of the land \\ as voluntarily delivered by the petitioner to the Council on 21.2 1981 and hence, the Arbitrator has also passed an order that no proceedings under Section 83 of the Act are required to be initiated. Whereas, according to the pet ii loners, advance possession was only given in respect of a strip of land, which was to be used for 20 feet wide road.
5. The Revised Development Plan came to be finalised, with Civic Centre on 6.1.1993. The Town Planning Scheme became final on 29.5.1993. The Town Planning Scheme provides reservation for a Garden, Maternity Home, Dispensary and Library, whereas the Revised Development Plan describes the public purpose as ‘Civic Centre’. The stand of the Municipal Council is that the generic term ‘Civic Centre’ includes the above purpose described in the Town Planning Scheme and hence, there is no variance. By filing an affidavit in a connected petition, the Planning Authority has categorically stated that the land will only be used for the public purpose indicated in the Town Planning Scheme.
6. On the aforesaid fact situation, the following points emerge for adjudication:
(I) Whether Chap. V of the M.R.T.P. Act, is a self contained Code, providing for payment of compensation and vesting the title of the lands in the Planning Authority;
(II) Whether Section 126 of the M.R.T.P. Act could be brought into play, in regard to the lands reserved for public purpose in the Town Planning Scheme;
(III) Whether the petitioner is entitled to claim market value of the land and other benefits, such as Solatium etc., as is contemplated by the provisions of the Land Acquisition Act, though his land forms part of the Town Planning Scheme;
(IV) Whether Section 127 of the Act, is available to the owner of a land reserved for public purpose, under a Town Planning Scheme;
(V) By non-application of Sections 126 and 127 of the Act, whether the petitioners’ right to equality under Article 14 of the Constitution of India is abridged and violated.
7. Before we proceed to deal with the scheme of the Maharashtra Regional Town Planning Act, (for sake of brevity ‘the M.R.T.P. Act’) it would be appropriate to deal with the features of the repealed enactment, which was dealing with the same subject, prior to the coming into force of the Act. The subject of Development Plan and Town Planning Scheme was regulated by the provisions contained in the Bombay Town Planning Act, 1954. The said Act provided for preparation of Development Plan, so also, Town Planning Schemes. The present Act is an improvement over the Bombay Town Planning Act and includes, few more chapters, dealing with the Regional Plans and Development, of new Towns. It is relevant to note that the M.R.T.P. Act follows generally the then existing provisions of Bombay Town Planning Act, 1954, [for sake of brevity ‘the B.T.P. Act’) in regard to preparation and execution of Town Planning Schemes, with few minor modifications. So far as the provisions relating to the Town Planning Scheme are concerned, there is a striking similarity in both the Acts, i.e. M.R.T.P. and B.T.P. Act.
8. It would be apt to refer to the scheme of the B.T.P. Act in relation to Town Planning Scheme for the reason that some of the points raised in this petition are adjudicated by the Apex Court in reference to the provisions of the B.T.P. Act. The B.T.P. Act deals with various stages in the Town Planning Scheme, in relation to publication, declaration of intention, draft scheme, final scheme, sanction, variation, restriction, proceedings, suspension and recovery to ‘be made or compensation to be given. By making it obligatory upon a Local Authority to prepare a Development Plan, it was clearly intended that the Town Planning Schemes should form part of a single cohesive pattern for development of the entire area, over which the Local Authority had the jurisdiction. Chapter II of the B.T.P. Act, relates to the making of the Town Planning Scheme. Chapter IV deals with the declaration of intention to make a scheme and making of a Draft Scheme. Chapter V deals with the appointment of Town Planning Officers and the Board of Appeal and their powers. Chapter VI deals with splitting up of the schemes into sections and preliminary schemes. Chapter VII deals with joint Town Planning Schemes and Chap. VIII deals with Finance under the B.T.P. Act, after a Draft Development Plan is sanctioned, the Local Authority makes a declaration of its intention to make a scheme and then prepares a Draft Scheme setting out the size and shape of every reconstituted plot, so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the buildings as far as possible complies with the provisions of .the scheme as regards open space. The scheme may also make provision for lay out of lands; filling up or reclamation of lands, lay out of new streets, roads, construction, diversion, extension, alternative, improvement and stepping up of streets, roads and communications, construction, alteration and removal of buildings, bridges and other structures; allotment or reservation of lands for roads, open spaces, gardens, recreation grounds, schools, markets, green belts, dairies, transport facilities, and public purposes of all kinds; drainage, lighting; water supply, preservation of objects of historical or national interest or beauty and of buildings used for religious purposes; imposition of conditions relating to constructions and other matter not inconsistent with the object of the Act as maybe prescribed. The draft scheme is punishable after it receives the sanction of the State Government. The State Government then appoints Town Planning Officer to perform the duties specified in Section 32 of the Act. An appeal lies to a Board of Appeal against certain decisions which the Town Planning Officer may make. After the Town Planning Officer has dealt with the various matters relating to the draft scheme, and the appeals against his orders have been disposed of, the State Government may sanction the scheme, and on and after the date fixed in the notification sanctioning the scheme, the Town Planning Scheme has the effect as if it were enacted in the Act.
9. The Development Plan proposals are executed by the Local Authority either by compulsory land acquisition or by preparing and executing Town Planning Schemes for different parts of the Town, so that when all the proposals are carried out, there would emerge a harmonious, well planned and properly developed town. Town Planning Scheme can be made in respect of any land, whether open or built upon and incremental contribution, i.e. betterments in land value, can be recovered from the owners of the plots benefitting from the proposals made in the scheme.
In making a Town Planning Scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders. The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Arbitrator may lay out new roads, divert or close existing roads, reserve lands for recreation grounds, schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water supply, filling up of reclamation of low-lying, swamp or unhealthy areas or levelling up of land so that the total area included in the scheme may conducive to the health and well-being of the residents. Since the Town Planning Scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community. Under the B.T.P. Act, the cost of the scheme is to be met wholly or in part by contributions to be levied by the Local Authority on each plot included in the final scheme calculated in proportion to the increment which is estimated to accrue in respect of each plot.
While dealing with provisions of B.T.P. the Apex Court, in a judgment reported in AIR 1969 SC 634 has, in depth, considered the working of the Town Planning Schemes and observed that, “On the coming into force of the scheme all lands which are required by the Local Authority, unless otherwise determined in the scheme, by the operation of Section 53{a), vest absolutely therein free from all encumbrances. The result is that there is a complete shuffling up of plots of lands, roads, means of communication, and rearrangement thereof. The original plots are reconstituted, their shapes are altered, .portions out of plots are separated, lands belonging to two or more owners are combined into a single plot, new roads are laid out, old roads are diverted or closed up and lands originally belonging to private owners are used for public purposes i.e. for providing open spaces, green belts, dairies, etc. In this process the whole or part of land of one person, may go to make a reconstituted plot, and the plot so reconstituted may be allotted to another person and the lands needed for public purposes may be earmarked for those purposes.
The rearrangement of titles in the various plots and reservation of lands for public purposes require financial adjustments to be made. The owner who is deprived of his land has to be compensated, and the owner who obtains a reconstituted plot in surroundings which are conducive to better sanitary living conditions has to contribute towards the expenses of the scheme. This is because on the making of a Town Planning Scheme, the value of the plot raises and a part of the benefit which arises out of the unearned rise in prices is directed to be contributed towards financing of the scheme which enable the residents in that area to more amenities, better facilities and healthier living conditions.
This is how the Town Planning Schemes were operated under the B.T.P. Act.
10. Let us examine, whether the M.R.T.P. Act deviates from the manner of operation of the Town Planning Schemes from the repealed B.T.P. Act or it runs hand in hand with the same.
Chapter V of the M.R.T.P. Act deals with Town Planning Schemes. Section 59 provides for preparation and contents of the scheme. Section 60 empowers the Planning Authority to resolve on declaration of intention to make a scheme and publish the same in the Official Gazette. Section 61 regulates making and publication of Draft Scheme. Section 64 provides for contents of the Draft Scheme. Section 66 deals with compensation for discontinuance of use. Section 67 obliges the Planning Authority to consider objections to the Town Planning Scheme. Section 68 authorises the State Government to sanction the Draft Scheme. All these sections fall under the Head Note, “Making of Town Planning Schemes”. In making of a Town Planning Scheme, the M.R.T.P. Act does not make any deviation from the B.T.P. Act.
Under Section 72, the State Government has to appoint an Arbitrator within one month from the sanction of the Draft Scheme. Sub-section (3), provides for powers and duties of Arbitrator. Section 74 provides for appeals before the Tribunal of Appeals to be constituted under Section 75.
Under the B.T.P. Act, the authorities designated were Town Planning Officers and Board of Appeals, whereas under the M.R.T.P. Act, the designations have been changed and renamed as Arbitrator and Tribunal of Appeals. They perform the same functions and exercise the same powers. Section 83 deals with advance possession of land. Section 85 provides for payment of interest to the owners of land, whose possession is taken in advance. Section 86 postulates sanction by the State Government to the final scheme. Section 88 provides for the effect of final scheme. It reads thus:
Section 88 : “On and after the day on which a final scheme comes into force:
(a) all lands required by the Planning Authority shall, unless it is otherwise determined in such scheme, vest absolutely in the Planning Authority free from all encumbrances;
(b) all rights in the original plots which have been reconstituted shall determine, and the reconstituted plots shall become subject to the rights settled by Arbitrator:
(c) the Planning Authority shall hand over possession of the final plots to the owners to whom they are allotted in the final scheme.
Section 88 of the M.R.T.P. Act is almost the same as Section 53 of the B.T.P. Act. So far as Clause (a) is concerned, it is identical. The vesting of lands, required by the Planning Authority, in the Planning Authority (or Local Authority under the B.T.P. Act) has undergone no change.
Section 97 deals with working out the cost of the scheme and Section 101 provides for transfer of rights from original to reconstituted plot and extinction of such right when the same cannot be transferred. Section 101 provides for payment of compensation in respect of property or right injuriously affected by the scheme. The principle of determination of compensation is fully covered by Sections 102 to 107.
Comparison of the entire scheme, in regard to Town Planning Scheme under the M.R.T.P. Act and the repealed B.T.P. Act would reveal a striking similarity. What is true of a provision under the B.T.P. Act is equally true in relation to the similar provision in the M.R.T.P, Act. The M.R.T.P. Act is modelled on the same pattern as B.T.P. Act.
Under the M.R.T.P. Act, the Town Planning Schemes are prepared and finalised in the same manner as was done under Bombay Town Planning Act.
It is as such evident that the judgments delivered by the Supreme Court interpreting the provisions of the B.T.P. Act would hold good while interpreting the similar provisions in the M.R.T.P. Act. Bearing this position in mind, we proceed to deal with the points raised in this petition. As point Nos. (II), (III) and (V) overlap, we will consider the same collectively.
In a judgment reported in State of Gujarat v. Shantilal Mangaldas and Ors. the validity of Sections 53 and 67 of the B.T.P. Act was challenged on the ground of violation of the then existing Article 31. It is also relevant to note that Article 19(l)(f) of the Constitution was also available then. Repelling the challenge, the Supreme Court, in the context of Article 31 held in para 22 thus:
The following principles emerge from an analysis of Clauses (2) and (2-A) : compulsory acquisition or requisition may be made for a public purpose alone, and must be made by authority of law. Law which deprives a person of property but does not transfer ownership of the property or right to possession of the property to the State or a Corporation owned or controlled by the State is not a law for compulsory acquisition or requisition. The law, under the authority of which property is compulsorily acquired or requisitioned, must either fix the amount of compensation or specify the principles on which, and the manner in which, the compensation is to be determined and given. If these conditions are fulfilled the validity of the law cannot be questioned on the plea that it does not provide adequate compensation to the owner.
It then proceeded to hold that the B.T.P. Act is a law for compulsory acquisition and observed in para 22(a) thus:
It is common ground that law for compulsory acquisition of property by a Local Authority for public purposes is a law for acquisition of property by the State within the meaning of that expression as defined in Article 12. The Act was reserved for the consideration of the President and received his assent on August 1, 1955, and since it provides expressly by Section 53(a) that on the coming into force of the scheme, the ownership in the lands required by the Local Authority for public purposes shall, unless it is otherwise determined in such scheme, vest absolutely in the Local Authority free from all encumbrances, the clause contemplates transfer of ownership by law for private owners to the Local Authority. The Act is, therefore, a law for compulsory acquisition of land.
It may also be stated here that the M.R.T.P. Act was also reserved for consideration of the President and it received assent of the President and was published in the Maharashtra Government Gazette, on 20th December, 1966.
The Apex Court, then proceeded to observe in para 28 as under:
The question that falls then to be considered is whether the scheme of the Act which provides for adjustment of the market value of land at the date of the declaration of intention of making a scheme against market value of the land which goes to form the reconstituted plot, if any, specifies a principle for determination of compensation to be given within the meaning of Article 31(2). Two arguments were urged on behalf of the first respondent – (I) that the Act specifies no principles on which the compensation is to be determined and given; and (2) that the scheme for recompense for loss is not a scheme providing for compensation. It is true that under the Act the market value of the land of which the owner is deprived at the date of declaration of intention to make a scheme determines the amount to be adjusted, and that is the guiding rule in respect of all lands covered by the scheme. The High Court was, in our judgment, right in holding that enactment of a rule determining payment or adjustment of price of land of which the owner was deprived by the scheme estimated on the market value on the date of declaration of the intention to make a scheme amounted to specification of a principle of compensation within the meaning of Article 31(2). Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act, compensation is determined on the basis of “market value” of the land on the date of notification under Section 4(1) of that Act. That is a specification of principle. Compensation determined on the basis of market value prevailing on a date anterior to the date of extinction of interest is still determined on a principle specified. Whether an owner of land is given a reconstituted plot or not, the rule for determining that is to be given as recompense remains the same. It is a principle applicable to all cases in which by virtue of the operation of the Town Planning Act a person is deprived of his land whether in whole or in part.
11. Dealing with the submission that owner of a land is put to a disadvantage and hardship, when land is acquitted for a public purpose, needed by a Local Authority, under the Town Planning Scheme, as compared to acquisition under the Land Acquisition Act, the Apex Court held:
One more contention which was apparently not raised on behalf of the first respondent before the High Court may be briefly referred to. Counsel contends that Sections 53 and 67 in any event infringe Article 14 of the Constitution and were on that account void. Counsel relies principally upon that part of the judgment in P. Vajravelu Mudliar’s case 1965 (1) S.C.R. 614: AIR 1965 SC 1017 which deals with the infringement of the equality clause of the Constitution by the impugned Madras Act. Counsel submits that it is always open to the State Government to acquire lands for a public purpose of a Local Authority and after acquiring the lands to vest them in the Local Authority. If that be done, compensation will be payable under the Land Acquisition Act. 1894, but says Counsel, when land is acquired for a public purpose of a Local Authority under the provisions of the Bombay Town Planning Act, the compensation which is payable is determined at a rate prevailing many years before the date on which the notification under Section 4 of the Land Acquisition Act is issued, the argument is based on no solid foundation. The method of determining compensation in respect of lands which are subject to the town planning scheme is prescribed in the Town Planning Act. 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 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 under a statute to do a certain thing in a certain way, the thing must be done in that way or not at all; Taylor v. Taylor 1875 (1) Ch.D. 426. Again it cannot be said that because it is possible for the State, if so, minded, to acquire lands for public purpose of a Local Authority, the statutory effect given to a Town Planning Scheme results in discrimination between persons similarly circumstanced. In P. Vajravelu Mudliar’s case, (1965) 1 S.C.R. 614 : AIR 1965 SC 1017 the Court struck down the acquisition on the ground that when the lands are acquired by the State Government for a housing scheme 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 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 founded on intelligible differentia which had a rational relation to the object sought to be achieved. One broad ground of distinction between P. Vajravelu Mudliar’s case, (1965) 1 S.C.R. 614 : AIR 1965 SC 1017 and this case is clear; the acquisition was struck down in P. Vajravelu Mudliar’s case (supra) because the Sate Government could resort to one of the two methods of acquisition – the 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 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 Section 53(a) and that vesting for purposes of the guarantee under Article 31(2) is deemed compulsory acquisition for public purpose. To lands which are subject to the scheme, the provisions of ss, 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 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 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. The contention that the provisions of Sections 53 and 67 are invalid on the ground that they deny the equal protection of laws or equality before law must, therefore, stand rejected.
It is categorically held that land acquired for any of the purposes of Town Planning Scheme cannot be acquired otherwise than under the Bombay Town Planning Act. The contention that acquisition of the land under the B.T.P. Act, violates Article 14 of the Constitution, came to be rejected.
12. The correctness of the view in Shantilal’s case (supra) came for consideration before the Bench, comprising of 5 Judges of the Supreme Court, in the case of Prakash Amichand Shah v. State of Gujarat and Ors. and affirming the view taken in Shantifat’s case the Apex Court held that lands which are subject to the scheme, provisions of Sections 53 and 67 of the B.T.P. Act, apply and the compensation is determined only in the manner prescribed by the Act. Placing reliance on a judgment in Zandu Pharmaceuticals Works Ltd. v. G.J. Desai, the Apex Court, quoted the following observations with approval:
There are two separate provisions, one for acquisition of land by the State Government under the Land Acquisition Act and the other for acquisition for the purpose of town planning by the Local Authority 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 results in acquisition.
The Apex Court, concluded the issue by making the following observations in para 10:
The first contention urged by the learned Counsel for the appellant is that it being possible in this instant case to acquire the land of the appellant either under the Land Acquisition Act, 1894 which is more favourable to the owner of the land both from the point of view of the procedural safeguards and from the point of view of the quantum of compensation payable for the land which includes solatium payable Section 23(2) thereof than the Act which does not provide for appeals against many of the orders passed by the Town Planning Officer under Section 32 of the Act and does not authorise payment of solatium in addition to the market value of the land, the acquisition of the land under the Town Planning Scheme under Section 53 of the Act is discriminatory and violative of Article 14 of the Constitution which guarantees equality before law and equal protection of the laws. This question is no longer res Integra. In Zandu Pharmaceutical Works Ltd. v. G.J. Desai Civil Appeal No. 1034 of 1967, decided on 28.8.1969 dealing with the very provisions of the Act this Court observed thus:
When the Town Planning Scheme comes into operation and land needed by a Local Authority vests by virtue of Section 53(a) and that vesting for purposes of the guarantee under Article 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, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions one for 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 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 provisions of Sections 53 and 67 are not invalid on the ground that they deny equal protection of the laws or equality before the laws.
The Apex Court concluded the issue by observing that, on the final Town Planning Scheme 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 Land Acquisition Act, 1894 have to be set in motion either by the Collector or the Government.
13. The divesting of the title takes place statutorily under Section 88 of the M.R.T.P. Act. Section 104 of the M.R.T.P. Act provides for payment of compensation to the owner of a original plot, who is not provided with a plot in the final scheme or if the contribution to be levied from him under Section 100 of the Act, Is less than the total amount to be deducted therefrom, under any of the provisions of the Act. It will not be out of place to state that Chap. VIII of the Bombay Town Planning Act, is almost bodily lifted and inserted as Chap. V of the M.R.T.P. Act, which deals with finance of the schemes. The provisions of ss, 64 to 73 of the old Act, find place in Sections 97 to 106 of the M.R.T.P. Act, The Supreme Court has categorically rejected the contention raised by the learned Counsel for the appellant, that if it is possible to acquire the land of the appellant, either under the Land Acquisition Act, 1894, which is more favourable to the owner of the lands, both from the point of view of procedural difficulties and from the point of view of quantum of compensation payable for the land, which Includes solatium payable under Section 23(2) of the Land Acquisition Act, then the Act, which does not provide for appeal against many orders passed by the Town Planning Officer (Arbitrator) and does not authorise payment of solatium in addition to the market value of land, the acquisition of land under the Town Planning Scheme under Section 53 (s. 88 of the M.R.T.P. Act) is discriminatory and violative of Article 14 of the Constitution, viz. equality before law and equal protection of laws.
While considering a situation, wherein a person loses whole of his land, in the light of the provisions contained in Section 53 (s. 88 of the M.R.T.P. Act) of the Act, the Supreme Court observed thus:
Under Section 51(3) of the Act (s. 86(3) of the M.R.T.P. Act), the final scheme as sanctioned by the Government has the same effect as if it were enacted in the Act. The scheme has to be read as part of the Act. Under Section 53 (s. 88 of M.R.T.P. Act) of the Act all rights of the private owners in the original plots would determine and certain consequential rights in favour of the owners would arise therefrom. If in the scheme, reconstituted or final plots are allotted to them they become owners of such final plots subject to the rights settled by the Town Planning Officer in the final scheme. In some cases the original plot of an owner might completely be allotted to the Local Authority for a public purpose. Such private owner may be paid compensation or a reconstituted plot in some other place. It may be smaller or a bigger plot. It may be that in some cases it may not be possible to allot a final plot at all. Sections 67 to 71 (ss. 100 to 104 of M.R.T.P. Act) of the Act provide for certain financial adjustments regarding payment of money to the Local Authority or to the owners of the original plots. The development and planning carried out under the Act is primarily for the benefit of public. The Local Authority is under an obligation to function according to the Act. The Local Authority has to bear a part of the expenses of development. It is in one sense a package deal. The proceedings relating to the scheme are not like acquisition proceedings under the Land Acquisition Act 1894. Nor are the provisions of the Land Acquisition Act, 1894 made applicable either without or with modifications as in the case of Nagpur Improvement Trusts Act, 1936.
14. Applying the ratio laid down in the above judgments, it is crystal clear that Chapter V of the M.R.T.P. Act, is a self contained Code providing for payment of compensation and vesting of the title of the lands in the Planning Authority. The petitioners are not entitled to claim that their lands ought to be acquired under the Land Acquisition Act. When the land forms part of the Town Planning Scheme, applicability of the provisions of the Land Acquisition Act, is excluded and the petitioners cannot contend that denial of applicability of the Land Acquisition Act, while acquiring the land, needed for public purpose by the Planning Authority, by virtue of operation of Section 88 of the M.R.T.P. Act, results in violation of the fundamental right contained in Article 14 of the Constitution of India.
15. Turning to point Nos. IV and V, the learned Counsel for the petitioner contended that Section 126 makes a striking departure from the earlier provision contained in the Bombay Town Planning Act and it is submitted that Section 11 of the B.T.P. Act, only provided for acquisition in regard to the land covered by the Development Plan and not in the Town Planning Scheme, whereas, Section 126 of the M.R.T.P. Act, permits acquisition of land covered by the Town Planning Scheme. The relevant provision in that regard is to be found in Sub-section (1) which reads thus:
126(1). When 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 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, except as otherwise provided in Section 113-A acquire the land:
(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 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, Floor Space Index (F.S.I.) or Transferable Development Rights (T.D.R.) 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 constitution of the amenity on the 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, 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, 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.
16. Relying on the language used in Sub-section (1) of Section 126, it is claimed that land under the M.R.T.P. Act, could only be acquired by resorting to the modes specified in Sub-section (1) and in no other way. It is then contended that if not so construed, Section 126 to the extent it relates to Town Planning Scheme would become redundant. It is to be seen that Section 126(1) does not mandate acquisition of the land by having recourse to the modes provided therein. The use of the word “may” clearly shows that the said provision is not mandatory. When Section 88 Itself provides for automatic vesting of the land in the Planning Authority, why and how could a Planning Authority proceed to acquire the land under Section 126?
In our considered view, reference to the scheme in Section 126, providing for acquisition could only be resorted to, in relation to the cases covered by the exclusionary clause used in Section 88(a) of the Act, viz. “unless it is otherwise determined in such scheme”. Though Section 88(a) provides for absolute vesting of all lands in the Planning Authority, which are required by the Planning Authority, the said provision carves out an exception when a contrary order is passed by the Arbitrator or the Tribunal, in which case the decision of the Arbitrator/Tribunal would prevail. To us, it appears that when it is otherwise determined in a scheme, that the land shall not vest in the Planning Authority, in such a situation, Section 126 could apply and enable acquisition of the lands by the Planning Authority, even though the scheme provides otherwise. If so read, there is no conflict between Sections 88 and 126 and both the sections stand harmoniously construed. Section 126 is also not rendered redundant even in respect of Town Planning Scheme. In this view of the matter, we hold that Section 126 of the Act does not ordinarily apply to the lands reserved for public purpose in the Town Planning Scheme, except when it is otherwise provided for under the scheme.
17. The next limb of submission canvassed by the learned Counsel for the petitioner is that Section 127, if applied to the lands covered by the Town Planning Scheme, the petitioner had issued a notice as contemplated by the said section to the Planning Authority and despite service, within six months from the date of service of notice, neither the land is acquired, nor any steps are taken for its acquisition and as a result thereof the reservation shall be deemed to have lapsed and thereupon the land shall be deemed to be released from such reservation and shall be available to the owner for the purpose of development, as otherwise permissible in case of adjacent land under the relevant plan. Reading of Section 127 makes it clear that Section 127 provides for lapsing of reservation only in regard to land reserved in final Regional Plan, or final Development Plan. The said section does not deal with reservations made under the Town Planning Scheme. There is no reference to Town Planning Scheme. Plain reading of Section 127 makes it amply clear that lands reserved for public purpose, under the Town Planning Scheme, is not capable of being dereserved by following the course laid down under Section 127. The learned Counsel for petitioners then submitted that by necessary implication, the Court should read Town Planning Scheme’ in Section 127. As the language of the section is plain, there does not arise any occasion to interpret the section differently, by supplementing the words Town Planning Scheme in the section. In our view, there is no ambiguity in Section 127, requiring any interpretation, whatsoever. In the result, point No. IV is accordingly answered.
18. In the result, writ petition fails and the same is dismissed. Rule is discharged. There shall be no orders as to costs.