GHANSHAM MEGHRAJ SHARMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Mr. Bajaj, learned Counsel for the petitioner and Mr. Kishore Patil, learned A.G.P. for respondents no.1 & 2.

(2.) THE development scheme has been carried out in respect of the Ahmednagar Municipal Council long back. THE plot of the present petitioner was reserved for school and playground in a development scheme. However, when the petitioner found that within a period of ten years from the finalisation of a development scheme his land has not been acquired by the planning authority, namely the Municipal Council, he issued a notice under section 127 of the Maharashtra Regional and Town Planning Act, 1966 (hereinafter referred to as the "Act") either to initiate a proceeding within a period of six months to acquire his land and/or on failure to do so the development plan would lapse so far as the land of the petitioner is concerned. However, it is evident from the earlier litigation i.e. Writ Petition No.3119 of 1991 and S.L.P. No.8981 of 1992 that the Municipal Council has initiated proceedings for the acquisition within a period of six months and thereby the benefit cannot be availed by the petitioner of the lapsing of the development plan in his favour so as to free his land from the development plan and, therefore, in view of this the provisions of Section 126 are already attracted in respect of the petitioner's land. Now the petitioner points out that after this the Municipal Council has passed the resolution on 29-3-1985, wherein the intention to frame the town planning scheme under section 60(1) of the Act and thereafter the notification has been issued calling the objections. THE grievance is that as the said act has not been done by the Municipal Council within a period of 12 months as required under Section 61(1), the said notification has lapsed and, therefore, the said cannot be executed or relied upon. THE purpose for making this grievance is that as a result of issuance of a fresh notification the petitioner will be entitled to take fresh step for fixing the market value whenever acquisition under Section 126 of the Act is to be carried out. THE learned Counsel, for that purpose pointed out the provisions of Section 60, 61 and Section 72(3) clause (3). Section 61 (1) gives a power to frame the town planning scheme and if the said scheme is not framed within a period of one year, the State Government has a power to extend the period. What is important to be noted from sub section (2) of Section 61 is that if the notification lapses, such lapse is not fatal 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. This is being pointed out because the lapses on the part of the town planning authority are not beneficial for quashing and releasing the area from the town planing scheme and/or development plan but it continues in the acquisition as the acquisition proceedings have been already initiated by the Municipal Council. Admittedly the land of the petitioner is required for a public purpose, namely a school and playground and, therefore, if at all the acquisition is required to be carried out, it is required to be carried out under Section 126 of the Act only. However, the learned Counsel relied upon Section 72 clause no. (iv), which says that Arbitrator shall estimate the compensation payable for the loss of the area of the original plot in accordance with the provisions contained in clause (f) of sub-section (1) of Section 97 in respect of the original plot which is wholly acquired under the scheme. This is a power of Arbitrator which the Arbitrator is supposed to exercise while finalisation of the original plots into final plots under the scheme. In respect of the land of the present petitioner, the final plot has been already completed and thereafter the land is under acquisition and, therefore, the stage at which the Arbitrator is supposed to exercise the power has already gone and, therefore, these provisions are not attracted. In fact, the provisions of Section 126 of the Act are applicable so far as the market value is concerned. As stated earlier the lapsing of the declaration under Sections 60 and 61 of the Act and thereafter issuance of the fresh notification as is permissible under the said provisions has no bearing in respect of the date to be taken for finalisation of the market value, because Section 126 specifically gives the dates on which the market value should be fixed in acquisition proceedings. Sub-section (3) of Section 126 provides the different dates which are to be taken for the purpose of fixing the market value, namely, in respect of the new towns, the market value prevailing on the date of publication of the notification constituting or declaring the development authority. In respect of the land to be acquired for special planning authority, the market value prevailing on the date of the publication of the notification of the area as an undeveloped area and in respect of any other category the market value on the date of publication of the interim development plan for the area or areas for comprehensive development, whichever earlier, or as the case may be, the date of publication of the draft town planning scheme. THEse three dates are applicable in case the acquisition is under sub-sections (1) & (2) within the area specified within the provisions of sub-section (2) of Section 126 of the Act. However, in case the acquiring authorities could not follow the section 126 (3), still the acquiring body have power to acquire the land taking the benefit of Section 126 (4). THE benefit has been extended in respect of the dates to be taken from sub-section (3) of Section 126. THE date of actual publication of a notification will be taken as the date for fixation of the market value and by that way the person whose land is acquired is protected at no stage or point of time. Section 126 does not provide that the dates of the declaration under Sections 60 and 61 should be taken as the market value and, therefore, the argument which is advanced by the learned Counsel is misconceived and contrary to the provisions of law and we are not inclined to accept it. It is only S.126 that provides date for market value. With this we find that there is no substance in the petition. It is hereby rejected in limine. Petition dismissed.