DHIRAJ UTTAM ASHTANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) These petitions raise a challenge to the proceedings by the respondents, which have been commenced as per the Notification No. TPS-2418/Nag, Camp-9/CR-281/2018/UD-9 for the town planning scheme No.1 of Mouza : Pardi, Bharatwada, Punapur and Bhandewadi, Tah: & Dist: Nagpur, and so also seeks quashing of the notices dtd. 02/12/2022 and 09/12/2022 issued by the respondent no.2 for handing over of possession. A challenge is also raised to the R & R policy dtd. 03/02/2021 (Annexure-C) with a direction to award compensation under the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 ('Act of 2013' for short). A further relief is sought to hold and declare that the provisions under Ss. 98 to 100 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) are ultra vires to Article 14 of the Constitution.

(2.) Insofar as the applicability of the Act of 2013 is concerned, Mr. Tajne, learned counsel for the petitioners relies upon Sec. 2(1)(e) of the Act of 2013, which provides that the provisions of the Act of 2013, would apply when the appropriate Government acquires land for its own use or for public use, including for the project of planned development or the improvement of village sites or any site in the urban areas or requirement of land for residential purposes for the weaker Sec. in rural and urban areas. He contends that since under Sec. 105-A(2) of the Act of 2013 (Maharashtra Amendment), there is an intention, to apply beneficial provisions, for the purpose of acquisition, the Act of 2013, would be attracted to the acquisition of land under the scheme and therefore, the petitioners would be entitled to compensation under the said Act of 2013. It is contended, that Act of 2013 is a beneficial piece of legislation and therefore, the provisions thereto would stand automatically applicable to all acquisitions by the State, including acquisitions under the MRTP Act. He also relies upon the provisions of Sec. 125 of the MRTP Act to contend, that even for the purpose of calculating the compensation for compulsory acquisition of land under the town planning scheme, the provisions of the Act of 2013 have been made applicable and compensation would be payable in the manner as provided therein.

(3.) Mr. Manohar, learned Senior Counsel for the respondent Nos.2 to 4 contends, that so far as the plea regarding the applicability of the Act of 2013 is concerned, the State of Maharashtra by enacting Ss. 105-A(1) and the 5th Schedule thereto by including the Maharashtra Regional Town Planning Act therein, have specifically excluded the applicability of the Act of 2013 to the MRTP Act. He submits, that since there is no Notification under Sub-sec. 2 of Sec. 105-A of the Act of 2013 as applicable to the State of Maharashtra, the contention in that regard regarding its applicability cannot be sustained. Learned Senior Counsel also contends that though Ss. 107 and 108 of the Act of 2013 have been relied upon by Mr. Tajne, learned counsel for the petitioners, for that purpose there has to be a specific enactment making the provisions of the Act of 2013 applicable. It is also contended that though certain provisions of the Act of 2013 have been made applicable for the purpose of acquisition under Sec. 125 of the MRTP Act, they would not ipso facto be applicable to the provisions of Chapter V of the MRTP Act as the same does not contemplate acquisition but an exchange for the purpose of a development scheme, which results in a readjustment of the rights. The learned Senior Counsel for the respondent Nos.2 to 4 submits, that this position is no longer res integra, but is already covered by the judgment of this Court in Zahir Jahangir Vakil & Ors. Vs. Pune Municipal Corporation 2006(4) ALL MR 326 in which considering the provisions of Chapter V of the MRTP Act, it has been held that the provisions therein constitute a scheme in itself and the provisions of compensation are in built and governed within the said scheme (para 23). It is, therefore, contended, that the provisions of the Act of 2013 would clearly not be attracted to the proceedings under the provision of Chapter V of the MRTP Act.