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Friday, July 31, 2015

Whether the KVTDS provide the authority to the Director of the respondent No.2-RDA, to formulate Town Development Scheme and is it in contravention to the 73rd and 74th Amendments to the Constitution of India? Whether the Town Development Scheme in the present case is formulated as per the provision mentioned in Section 50(1) of the Act of 1973? Whether the subsequent alteration of land acquired, is in consonance with the provisions of the Act? Whether the Town Development Scheme framed in the present case by the respondent No.2-RDA, in the absence of a zonal plan, is legal and valid? Whether the Act of 1973 authorises the Town Planning and Development Authority to reconstitute the plots and change the land use apart from public utility? Whether the proposal of the RDA to return 35% of the area of the land taken away from the land owners/appellants is legally permissible? While planning the KVTDS, whether the respondents ensured compliance with EIA clearance procedure from the competent authority? = Section 50(8) of the Act cannot be made retrospectively applicable. In the absence of vesting of land with the RDA, layout is not complete and no allotment can be done. The aforesaid provision of the Act was inserted by Ordinance dated 16.6.2010. Therefore, the same cannot be made applicable retrospectively to the Scheme as it was sanctioned by the State Government on 25.1.2008 and 10.8.2009. The Scheme was finalised on 26.5.2010, by which date, no land had been acquired by Respondent No. 2- RDA nor any piece of land vested in it. Plots are being earmarked only on paper and such ‘on paper’ allotment of plots have been done by Respondent No. 2- RDA. Therefore, we are of the opinion that due to the change in the scope of the project, Respondent No. 2- RDA was required to seek sanction for the project from the Central Government. The same has not been done. Therefore, the KVTDS scheme has also failed to obtain the environmental clearance requirement which is the mandatory requirement in law for initiating any project by the RDA. A faulty town development scheme prepared through incompetent authorities with blatant violation of legal and environmental procedure cannot be the reason for deprivation of constitutional rights of the appellants. Since we answered all the points framed in these cases in favour of the appellants, we allow these appeals by setting aside the impugned judgments and orders passed by the High Court of Chhattisgarh at Bilaspur in writ appeals and writ petitions of the appellants and further allow the prayer of the appellants by quashing the acquisition of their land of the villages which were included subsequently in the KVTDS in their respective writ petitions. The appeals are allowed. No costs.



   IN THE SUPREME COURT OF INDIA                           CIVIL APPELLATE
                                JURISDICTION

                      CIVIL APPEAL NOS. 5769-5770 OF 2015
              (Arising Out of SLP (C) Nos.30942-30943 of 2014)

RAJENDRA SHANKAR SHUKLA & ORS.ETC.     …APPELLANTS
                                     Vs.
STATE OF CHHATTISGARH & ORS.ETC.       …RESPONDENTS
                                      WITH
                    CIVIL APPEAL NOS. 5771-5775  OF 2015
              (Arising Out of SLP (C) Nos.30049-30053 of 2014)


                                 J U D G M E N T


V. GOPALA GOWDA, J.


Leave granted.

The  appellants-land  owners  have  filed  the  present  group  of   appeals
challenging the common impugned judgment and order  dated  16.6.2014  passed
by the Division Bench of the High Court  of  Chhattisgarh  at  Bilaspur,  in
Writ Appeal Nos.379, 380, 381, 382, 389 and 393 of  2013  wherein  the  High
Court upheld the order dated 15.4.2013 passed by the  learned  single  Judge
of the High Court of Chhattisgarh, Bilaspur, upholding the validity  of  the
Town Development Scheme, namely, ‘Kamal Vihar  Township  Development  Scheme
No. 4’ (for short ‘the KVTDS’).

The facts of the case are stated hereunder:-

The appellants herein are the landowners of  portions  of  land  (with  some
construction  thereon)  situated  in  the  villages  Dumartarai,  Tikrapara,
Boriya Khurd, Deopuri and Dunda of Raipur District  in  Chhattisgarh  State.
The respondent  No.2-Raipur  Development  Authority  (RDA)  was  established
under Section 38(1) of the M.P. (C.G.) Nagar Thatha Gram  Nivesh  Adhiniyam,
1973 (for short ‘the Act of 1973’). The KVTDS was planned by the  respondent
No.2 - RDA while discharging its functions under Section 38(2)  of  the  Act
of 1973. Though the KVTDS initially started  as  a  small  Town  Development
Scheme, it subsequently included  the  aforesaid  five  villages  in  Raipur
within its Scheme.

As per the evidence on record produced before  us,  which  are  the  written
communications between the State Government,  respondent  No.2-RDA  and  the
Director of Town and Country Planning, the KVTDS was initially  planned  and
proposed for an area of 416.93 acres only. The Chief  Executive  Officer  of
the  respondent  No.2-RDA  had  issued  public  notification  declaring  its
intention of coming up with an integrated township  of  416.93  acres  only.
However, a month after the publication of said notification,  the  Board  of
respondent No.2-RDA, increased the area of the  integrated  Township  Scheme
from 416.93 acres to 2300 acres which  resulted  in  the  inclusion  of  the
lands of the appellants herein.

At present, the said Scheme has a total project area of  647.84  Hect.,  out
of which the area available for development is  610.46  Hect.  While  482.29
Hect. of the total land is private land, 128.17 Hect. is government land.

According to the development plan,  in  the  above  area  of  647.84  Hect.,
further areas have been marked for recreational land, roads  and  lanes  and
other miscellaneous infrastructure like educational,  hygienic  and  various
public purpose amenities. The broad features of the Scheme would  show  that
there shall  be  15  Sectors  and  the  estimated  cost  of  development  of
infrastructure would be Rs.1085 crores. The Government agreed to  hand  over
its land to the respondent No.2-RDA and the land belonging  to  the  private
owners were to be taken over by the consent or by acquisition under  Section
56 of the Act of 1973.

The RDA planned to  develop  the  land  and  hand  over  about  35%  of  the
developed   plot   to    the    land    owners    without    charging    any
contribution/incremental cost from them in return for  their  acquired  land
for the development of the KVTDS under Section 56 of the Act  of  1973.  The
remaining  area  of  their  undeveloped   plot   would   be   retained   and
subsequently, may go to the  other  land  owners  or  may  be  utilized  for
constructing other facilities under the  development  Scheme.  According  to
respondent No.2-RDA, 15% of the developed plots have also been reserved  for
economically weaker sections which come to about 32.15 Hect.

Out of the total 4969 private land owners, 39 land owners did not  agree  to
the Scheme/procedure adopted and preferred  23  writ  petitions  on  various
grounds which were dismissed by the learned single Judge of the  High  Court
of Chhattisgarh, Bilaspur. Aggrieved by the  same,  six  Writ  Appeals  were
filed  by  13  land  owners.  The  Division  Bench  of  the  High  Court  of
Chhattisgarh at Bilaspur, after considering  the  facts,  circumstances  and
evidence on record of the cases, upheld the validity of  the  KVTDS  planned
by the RDA and dismissed the appeals  on  the  ground  that  the  same  were
devoid of merit. Hence, the present appeals.

We have heard the learned senior counsel for both the parties. On the  basis
of the factual circumstance and evidence on record produced  before  us  and
also in the light of the rival  legal  contentions  raised  by  the  learned
senior counsel for both the parties, we have broadly  framed  the  following
points which require our attention. The main legal  issues  which  arise  in
this case are :-

  Whether the KVTDS provide the authority to the Director of the  respondent
No.2-RDA, to formulate Town Development Scheme and is  it  in  contravention
to the 73rd and 74th Amendments to the Constitution of India?
  Whether the Town Development Scheme in the present case is  formulated  as
per the provision mentioned in Section 50(1) of the  Act  of  1973?  Whether
the subsequent alteration of  land  acquired,  is  in  consonance  with  the
provisions of the Act?
  Whether the Town Development Scheme framed in  the  present  case  by  the
respondent No.2-RDA, in the absence of a zonal plan, is legal and valid?
  Whether the Act of 1973  authorises  the  Town  Planning  and  Development
Authority to reconstitute the plots and  change  the  land  use  apart  from
public utility?
  Whether the proposal of the RDA to return 35% of  the  area  of  the  land
taken away from the land owners/appellants is legally permissible?
  While planning the KVTDS, whether the respondents ensured compliance  with
EIA clearance procedure from the competent authority?
Answer to Point No. 1
As per Part IX and Part IX-A of the Constitution, a zonal  plan  has  to  be
framed by democratic institutions as prescribed  under  its  provisions.  On
the other hand, the Respondent No. 2- RDA, has framed the  Town  Development
Scheme without consulting or taking into account the views of the  Panchayat
and the District Planning Committee which  are  constitutionally  authorized
to undertake the task  of  framing  Scheme.  It  was  argued  by  Mr.  Gopal
Subramaniam, learned senior counsel on behalf of  the  appellants  that  the
Respondent No. 2- RDA had assumed the role of  town  planning  authority  by
proposing and framing KVTDS with land use which is different  from  the  one
prescribed in the Raipur Master Plan (Revised) 2021. In fact,  the  proposal
made by Respondent No. 2- RDA defined spaces that  are  meant  for  business
Districts, public use, schools, house and parks etc. This task taken  up  by
the Respondent No. 2- RDA of allocation of spaces is by statute vested  with
the ‘local authority’ under its power to make zonal plans.  It  was  further
contended by  the  learned  senior  counsel  that  the  Raipur  Master  Plan
(Revised) 2021, on the basis of  which the KVTDS claims to  be  implementing
the Scheme has also amended  the  same  without  the  participation  of  the
District Planning Committee which is the constitutionally empowered body  to
carry out social and economic planning for a District.

 The 73rd and 74th Amendments were inserted in  the  Constitution  of  India
with the avowed object  and  intention  of  strengthening  the  local  self-
governance both at the village and District level.  It  was  argued  by  the
learned senior counsel Mr. Gopal Subramaniam that self-governance  was  very
much  a  part  of  the  Indian  society  historically.  In  support  of  his
contention, he relied upon the words of Sir  Charles  Metcalfe,  the  Acting
Governor General of India from 1835 to  1836,  on  the  functioning  of  the
village panchayats made during  the  19th  century  which  are  recorded  as
under:
“The village communities are  little  republics,  having  nearly  everything
they can want  within  themselves,  and  most  independent  of  any  foreign
relations. They seem  to  last  where  nothing  else  lasts.  Dynasty  after
dynasty tumbles down; revolution succeeds after revolution; but the  village
community remains the same. The union of the village communities,  each  one
forming a separate little state, in  itself,  has  I  conceive,  contributed
more than any other cause to  the  preservation  of  the  people  of  India,
through all the revolutions and changes which they have suffered, and is  in
a high degree conducive to their enjoyment of a  great  portion  of  freedom
and independence”[1]

It is imperative to note here that the Constitution, initially did not  vest
with power on villages or communities as units. It rather  vested  power  on
individual as units of the society. It was proposed by  Dr.  B.R.  Ambedkar,
Chairman  of  the  Drafting  Committee  of  the   Constitution,   that   the
administration of India should not be carried out  at  village  level  since
they are ignorant units of communities immune from the progress of the  city
and are also influenced by social biases and prejudices.  With  this  biases
and prejudices, it was apprehended  that  India,  at  the  time  during  the
drafting of the Constitution, were not suited to be  ruled  at  village  and
panchayat level. On the other hand, Dr. Ambedkar proposed that there  should
be a strong Centre governed by the Rule of Law  for  the  administration  of
the country. Formal  inclusion  of  the  panchayats  in  the  constitutional
system was deferred for a later time since the framers of  the  Constitution
deemed  it  fit  to  introduce  social  reforms  in  the  village  prior  to
conferring upon them the power of  self-governance,  in  the  light  of  the
constraints faced by the new republic of India. Article 40,  therefore,  was
inserted in the Constitution in the form of Directive  Principles  of  State
Policy in Part IV of the Constitution so as to move towards  the  vision  of
introducing local governance when the time seems fit.
Though, this was the decision taken at the  time  of  the  drafting  of  the
Constitution, most of the framers in the Constituent Assembly reposed  their
faith on the potential of village panchayats and were of  the  opinion  that
self-governance at local level is the only way  forward  to  realize  Swaraj
for  our  country.  Shri  Ananthasayanam  Ayyangar,  the   member   of   the
Constituent Assembly, presented his opinion  on  village  panchayats  before
the Assembly which is recorded as under:
“But  who  are   these   republics?   They   have   to   be   brought   into
existence…..Therefore, I would advise that in the directives, a clause  must
be added, which would insist upon the  various  governments  that  may  come
into  existence  in  future  to  establish  village  panchayats,  give  them
political autonomy also economic independence in their  own  way  to  manage
their own affairs.”[2]

It is further to be noted that Entry 5 in the list-II to the VIIth  Schedule
of the Constitution enables the State Legislature to  make  laws  pertaining
to local government which also include  the  powers  to  be  vested  on  the
Municipal corporations, Improvement Trusts, Authorities,  Mining  Settlement
Authorities, District Boards and other local authorities for the purpose  of
village administration and the  local  self-governance.  The  constitutional
amendment in 1992-93 through the 73rd and 74th Amendment  Act  provided  for
uniformity in the structure in terms of three-tier local governments at  the
District (Zila Parishads- ZPs), Block  (Panchayat  Samitis-PS)  and  Village
levels  (Gram  Panchayats-GPs).  With  the  constitutional  amendment,   the
panchayats  are  constitutionally  expected  to   move   away   from   their
traditional role of simply executing the programs handed  down  to  them  by
higher levels of government.  They  are  on  the  other  hand,  expected  to
implement their own programs of economic  development  and  social  justice.
The amendments further confer power upon the States in the form of  Schedule
XI to enlarge the  domain  of  panchayats  and  to  include  functions  with
distributional consequences. This schedule includes key  functions  such  as
agriculture, drinking water,  education,  irrigation,  poverty  alleviation,
primary, secondary and adult education, roads and rural electrification  and
maintenance of community assets.

It  is  further  submitted  by  the  learned  senior  counsel,   Mr.   Gopal
Subramaniam that as per Article 243 G(1), the  authority  to  prepare  plans
for economic development and social justice has been vested  with  the  Gram
Panchayat. Articles 243W and 243ZF have  also  been  inserted  to  vest  the
local authority with the power to prepare plans  for  economic  development.
The 12th Schedule inserted into the Constitution specifically  lists  “urban
planning including town planning” as an entry  on  which  local  authorities
have full power under Article 243W of the Constitution.
Further, Article 243ZD was inserted into the Constitution wherein the  power
to prepare a draft development plan is vested  with  the  District  Planning
Committee (DPC). The  above  mentioned  provision  of  the  Constitution  is
extracted hereunder:
“243ZD. (1) There shall be constituted in every State at the district  level
a District Planning Committee to  consolidate  the  plans  prepared  by  the
Panchayats and the Municipalities in the district and  to  prepare  a  draft
development plan for the district as a whole.

(2) The Legislature of a State may, by law, make provision with respect to—
(a) the composition of the District Planning Committees;
(b) the manner in which the  seats  in  such  Committees  shall  be  filled:
Provided that not less than four-fifths of the total number  of  members  of
such Committee shall be elected by, and from amongst,  the  elected  members
of the Panchayat at the district level and  of  the  Municipalities  in  the
district in proportion to the ratio between  the  population  of  the  rural
areas and of the urban areas in the district;
(c) the functions relating to district planning which  may  be  assigned  to
such Committees;
(d) the manner in  which  the  Chairpersons  of  such  Committees  shall  be
chosen.

(3)  Every  District  Planning  Committee  shall,  in  preparing  the  draft
development plan,—
(a) have regard to— (i) matters of common interest  between  the  Panchayats
and the Municipalities including spatial  planning,  sharing  of  water  and
other  physical  and  natural  resources,  the  integrated  development   of
infrastructure and environmental conservation;
(ii) the extent  and  type  of  available  resources  whether  financial  or
otherwise;
(b) consult such institutions and organisations  as  the  Governor  may,  by
order, specify.

(4) The Chairperson of every District Planning Committee shall  forward  the
development plan, as recommended by such Committee,  to  the  Government  of
the State.”

Also, under Article 243 ZF, any law inconsistent with the provisions of  the
Constitution will be held void. Article 243 ZF reads as under:
“243 ZF. Continuance of existing laws and  municipalities.-  Notwithstanding
anything in this Part, any provision of any law relating  to  Municipalities
in force in a State immediately before the commencement of the  Constitution
(Seventy-fourth  Amendment)  Act,  1992,  which  is  inconsistent  with  the
provisions of this Part, shall continue to be  in  force  until  amended  or
repealed by a competent Legislature or other competent  authority  or  until
the expiration of one year from such commencement, whichever is earlier:
Provided  that  all  the  Municipalities  existing  immediately  before  the
commencement shall continue till the expiration of  their  duration,  unless
sooner dissolved by a resolution passed to that effect  by  the  Legislative
Assembly of that State or, in the case  of  a  State  having  a  Legislative
Council, by each House of the Legislative of that State.”

Similar provision exists for the Gram Panchayats under Article 243 N of  the
Constitution.

In the  present  case,  the  District  Planning  Committee  (DPC)  has  been
constituted under Section 3 of the Chhattisgarh Zila Yojna Samiti Act,  1995
(for short ‘the Act of 1995’) with an  intention  to  democratize  the  town
planning process to give effect to the legislative intendment. Section 7  of
the Act of 1995 provides for functions of the DPC as has been prescribed  by
the Constitution. The Constitution under Article 243ZD  directs  setting  up
of a DPC to consolidate the plans prepared by Panchayats and  Municipalities
in the Districts and to prepare a draft development plan for district  as  a
whole and the Director of every DPC shall forward such development plans  as
recommended by the Committee to the government of the State.

After the insertion of part IX-A in the Constitution, development  plan  for
a District can only be drawn by the  democratically  elected  representative
body i.e. DPC, by taking  into  account  the  factors  mentioned  in  Clause
(3)(a) (i), (ii) of Article 243ZD. As per Clause (4) of Article  243ZD,  the
Chairman of other DPC shall forward the development plan as  recommended  by
the committee to the Government of the State.

To support his contention further, the  learned  senior  counsel  Mr.  Gopal
Subramaniam, relied upon a decision of the Bombay High Court in the case  of
Charan v. State of Maharashtra[3] wherein it was held as under:

“22. Article 243 of the Constitution  of  India  defines  -  District,  Gram
Sabha,  Panchayat,  Panchayat  Area  and  Village.  Article  243G   requires
legislature of State to  make  Law  to  bestow  upon  Panchayat  powers  and
authority to enable them to function, as institutions of  self-  government.
It may inter-alia provide for preparation of plans for economic  development
and social justice, for implementation of schemes for  economic  development
and social justice, as may be entrusted to Panchayats,  including  those  in
relation to  matters  listed  in  Eleventh  Schedule  to  the  Constitution.
Panchayat has been defined as an institution [by whatever name  called],  of
self- government, constituted under Article 243B for  Rural  Areas.  Article
243ZD  provides  for  constitution  at  District  level  in  every  State  a
Committee,  known  as  District  Planning  Committee.  It's  purpose  is  to
consolidate the plans prepared by the Panchayats and the  Municipalities  in
Districts and to prepare a draft development plan for district as  a  whole.
Article 243P defines Municipalities.  Definition  of  District  in  Articles
243P and 243, as also definition of  Panchayat  in  both  the  Articles  is,
identical. The purpose  of  Article  243ZD  therefore,  appears  to  have  a
committee to effectively amalgate together separate plans  prepared  by  the
Panchayats  and  Municipalities,  and  on  its  basis  to  prepare  a  draft
development plan for District as a whole. That Article may  also  mean  that
DPC can consolidate these plans and also in addition, independently  prepare
a draft development plan for district as a whole. As per Article  243-ZD[2],
the State Legislature has to provide for composition of DPC and  filling  in
of the seats. 4/5th of the total number of members of  such  committee  need
to be elected by and from amongst the elected members of  the  Panchayat  at
district level and of the municipalities in districts. The law made  by  the
State Legislature  may  assign  to  such  committees  function  relating  to
district planning. Article 243-ZD [3] obliges the DPC  to  prepare  a  draft
development plan having regard to the matters  of  common  interest  between
the Panchayats and Municipalities, including spatial  planning,  sharing  of
water and other physical and natural resources,  integrated  development  of
infrastructure and environment conservation. For that  purpose,  extent  and
type of resources needs to be looked into and  such  resources  may  include
finance or other resources. The Legislature of State has been  empowered  to
make law requiring the DPC  to  discharge  functions  relating  to  district
planning as may be assigned to it. Under Sub-Article [4] the Chairperson  of
every District Planning  Committee  has  to  forward  the  development  plan
recommended by such committee to Government of State. Obviously, it  is  the
draft development plan referred to in  earlier  part.  Perusal  of  Eleventh
Schedule shows 29 entries,  which  include  Agriculture,  Land  improvement,
Animal Husbandry, Social Forestry, Rural housing,  Drinking  water,  Poverty
alleviation, Education, Libraries, Market and fairs, Health and  Sanitation,
Family welfare, Women and Child Development etc. Entry no.13  therein  deals
with Roads,  Culverts,  Bridges,  Ferries,  Waterways  and  other  means  of
communication. Article 243W casts similar  power  and  obligation  upon  the
Municipalities. Schedule relevant therein is Twelfth Schedule and Roads  and
Bridges is entry no.4 in it. Article 243N specifies that  any  law  relating
to  Panchayat  in  force,  immediately  before  the  commencement   of   the
Constitution [73rd Amendment] Act,  1992  which  is  inconsistent  with  the
provision of this part IX of the  Constitution,  shall  continue  to  be  in
force until amended or repealed by a  competent  legislature  or  until  the
expiration of one year from its commencement, whichever  is  earlier.  Thus,
these new provision added to Constitution for  strengthening  the  Panchayat
Raj must operate after 1 year, if State  Legislature  had  any  inconsistent
law with provision in said part and if that Legislature does  not  bring  it
in consonance with said part within said period of one year.


23.  These  Constitutional  provision  no  where  show  the   intention   of
Parliament to deprive the Panchayats or Municipalities of  their  powers  or
to  dilute  their  function  as  institutions  of  self-government.  On  the
contrary, subject to provision of Constitution,  the  Legislature  of  State
has been permitted to confer  necessary  powers  and  authority  upon  these
bodies to enable them to function effectively. Article 243ZD which  makes  a
provision for DPC, is one such provision. It  requires  the  Legislature  to
make a law and stipulates that purpose of DPC is  to  consolidate  the  plan
prepared by the Panchayats and Municipalities in Districts and to prepare  a
draft development plan for District as a whole. The provision  noted  by  us
above show relevance of matters of common interest, as specified in  Article
243 ZD [3][a] for said purpose. A Panchayat  or  Municipality  can  function
only in area over  which  it  has  jurisdiction.  Schemes  prepared  by  it,
therefore may not have any extra territorial application though  possibility
of its such impact or extending its benefit to  outsiders  cannot  be  ruled
out.  The  water  reservoir  or   other   physical/natural   resources,   in
jurisdiction  of  such  institution  of  local  self   government   can   be
conveniently exploited for larger area of two or  more  Panchayats  or  then
Panchayats and municipalities at same cost or by saving public  revenue.  To
facilitate such exploitation, the Parliament has thought it fit to create  a
District Planning  Committee  [DPC]  which  can  consolidate  the  otherwise
separate plans prepared by the Panchayats and Municipalities and  prepare  a
draft development plan for entire District as a  whole.  It  is,  therefore,
obvious  that  when  such  consolidation  of  development  plans  which  are
otherwise separate, becomes  necessary  or  is  found  essential  in  larger
public interest, DPC has been constituted to  undertake  that  exercise.  It
has been given power to prepare a draft development plan for district  as  a
whole also. Thus idea seems  to  be  maximum  utilization  of  resources  at
minimum costs by larger number of people spread over under  different  local
bodies in a district. Article 243ZD does not confer  any  executable  status
on such plans and the same need to be  sent  to  Government  of  the  State.
Thus, if development is restricted to area of only one authority and has  no
extraterritorial potential,  the  right  of  concerned  local  authority  to
proceed with it, is normally not prejudiced in any way.”


                                           (emphasis supplied by this Court)




As has been mentioned supra, the Respondent No.2-RDA was  constituted  under
Section 38 of the Act  of  1973.  The  Town  Development  Scheme  framed  by
Respondent No. 2-RDA,  however, has to be  read  in  the  light  of  Section
50(4) which provides for the approval of  the  Town  Development  Scheme  by
appropriate authority which reads as under:
“(4) The Town and Country  Development  Authority  shall  consider  all  the
objections and suggestions as may be received within  the  period  specified
in the notice under sub section (3) and shall,  after  giving  a  reasonable
opportunity to such persons  affected  thereby  as  are  desirous  of  being
heard, or after considering the report of the  committee  constituted  under
Sub section (5) approve the draft scheme shall be deemed to have lapsed.]”

Further, an amendment was made for the  State  of  Chhattisgarh  only,  with
respect to constitution of committee for evaluating reconstitution of  plots
for the purpose of the Town Development  Scheme.  The  amendment  came  into
force w.e.f. 6.9.2010 which reads as under:
“[(5) Where the town development scheme relates to reconstitution of  plots,
the Town and Country Development Authority shall,  notwithstanding  anything
contained in Sub- section (4), constitute  a  committee  consisting  of  the
Chief Executive Officer of the said Authority and to other members  of  whom
one shall be representative of the District Collector, not  below  the  rank
of Deputy Collector and the other shall  be  an  officer  of  the  Town  and
Country Planning Department not below the rank of Deputy Director  nominated
by the Director of Town &  Country  Planning  for  the  purpose  of  hearing
objection and suggestions received under sub- section (3).]”
                                            (emphasis supplied by the Court)

Therefore, in the light  of  the  provisions  mentioned  above  if  read  in
harmonious construction, the Chief Executive Officer of  Respondent  No.  2-
RDA is not permitted to unilaterally prepare a development scheme  resulting
reconstitution of land without taking into  consideration  the  opinion  and
suggestions of the  democratically  elected  bodies  such  as  the  District
Planning Committee and Officer of the Town and Country Planning  Department,
as mentioned in the Act of 1973. However, in the present case,  as  per  the
evidence on record put before us, the Chief Executive Officer of  Respondent
No. 2- RDA, formulated  the  Town  Development  Scheme  without  taking  the
opinion of the local committees which  are  constitutionally  authorized  to
make suggestions in the matter of Town Development Scheme under the  amended
provisions of Section 50(5) of the Act of 1973.
     In addition to this, it  has  been  contended  by  the  learned  senior
counsel on behalf of the appellants that the present master plan,  of  which
the development authority wants to  implement,  has  been  prepared  by  the
Chief Executive Officer without regard to the District Planning  Committee’s
power under the constitutional provisions which provisions are  incorporated
in the State Act. Therefore, it  has  been  argued  by  the  learned  senior
counsel  that  the  revised  master  plan   itself   is   opposed   to   the
constitutional and statutory provisions and therefore, it is  a  nullity  in
the eyes of law. Following the same,  the  KVTDS  framed  and  purported  in
compliance with the Raipur Master Plan (Revised) 2021, is  also  nullity  in
the eyes of law.

The above said argument is raised by the learned senior  counsel  on  behalf
of the appellants drawing our attention to  the  case  of  Chairman,  Indore
Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd.[4] which will  be
discussed in the appropriate place of this judgment. It  was  held  in  that
case that both development plan and master plan are one and the  same  thing
described by different names in different states. It has  been  admitted  by
the Respondent No. 2- RDA that they have prepared the Master Plan  (Revised)
2021. We are of the opinion that the Master Plan so  prepared  is  in  clear
contravention of Section 14 of the Act of 1973 read along  with  Section  17
of the same Act. Section 17 of the Act mandates the  requirement  of  taking
into consideration the Annual Development  Plan  of  the  District  prepared
under the Madhya Pradesh Zila Yojana Samiti Adhiniyam 1995. However, in  the
case in hand, there is no evidence to show that the Respondent  No.  2-  RDA
had taken into consideration any report prepared under the Act of  1995.  On
the other hand,  there  is  correspondence  on  record  to  prove  that  the
Respondent No. 2- RDA, on its own, without  taking  into  consideration  any
report, revised the Master Plan 2021 to suit it to the  requirement  of  the
KVTDS. Therefore, we are of the opinion that the Master Plan (Revised)  2021
requires reconsideration and should  be  prepared  in  accordance  with  the
legal procedure.

Next, it is relevant for us to examine Entry 5 of List  II  of  the  Seventh
Schedule to the Constitution which empowers the local  government  to  elect
members to municipal  corporations,  improvement  trusts,  District  boards,
Mining settlement authorities and other local authorities  for  the  purpose
of local self-government or village administration. Also,  under  Entries  1
and 3 of  Twelfth  Schedule,  Urban  planning  includes  town  planning  and
planning for economic and social development respectively. In the  light  of
the above entries, it is contended by the learned senior counsel  on  behalf
of the appellants, Mr. Gopal Subramaniam and Mr. Huzefa Ahmadi that the  Act
of 1973 in the present case has been read by the respondents without  taking
into account the subsequent amendments made to the Act in adherence  to  the
constitutional amendment provision. As a consequence, the  power  vested  on
the Director of the Planning Authority has been read by the respondent No.2-
RDA in isolation to the  subsequent  amendments  made  in  the  Act  thereby
violating the present constitutional scheme of self governance.

 It was further argued by the  learned  senior  counsel  on  behalf  of  the
appellants that under Article 243 N and Article 243 ZF, the Act of 1973  was
required to be amended to make it adherent to the  provisions  of  73rd  and
74th Constitutional amendments. The learned senior  counsel  further  argued
that disobedience to the constitutional mandate amounts to breaking down  of
the  federal  polity  leading  to  constitutional   impasse.   The   amended
provisions of the  Act  of  1973  clearly  provides  for  a  role  of  local
authorities in the planning process. The same cannot  be  abrogated.  It  is
also contended  that  the  role  and  functions  of  the  District  Planning
Committee were  notified  once  Chhattisgarh  was  notified  out  of  Madhya
Pradesh. This was further supplemented by the District  Planning  Committee.
Therefore, in the presence of a notified  District  Planning  Committee,  it
was argued by the learned senior counsel, that planning for districts  as  a
conglomeration of panchayats cannot be done by Respondent No. 2-RDA.

We are in agreement with the legal contentions raised by the learned  senior
counsel on behalf of the appellants.  Once  the  Constitution  provides  for
democratically elected bodies for local self-government,  a  nominated  body
like Respondent No. 2- RDA cannot assume the role of  an  elected  body  and
consequently usurp the power of the local authority in  framing  development
schemes and subsequently altering the size and use of land in the KVTDS.

 On the other hand, it was argued by  Mrs.  Pinky  Anand  and  Mr.  Prashant
Desai, the learned senior counsel on behalf of the respondents that most  of
the submissions made by the learned senior counsel of the  appellants,  were
not raised before the courts below and have been raised for the  first  time
before this Court on the ground of violation of the 73rd and 74th  amendment
of the Constitution. Further,  it  was  argued  that  there  has  been  full
compliance of 73rd and 74th Constitutional Amendment and  the  committee  as
contemplated  by  the  said  amendment,  is   also   responsible   for   the
modification or revision of the development plan under Section 23 read  with
Sections 14 to 18 of the Act of 1973.

 We are not able to agree with the  contention  of  the  respondent  that  a
ground raised before this Court for  the  first  time  is  not  maintainable
because it has been raised before us for the first time  and  has  not  been
raised before the courts below. Though the said legal  plea  is  raised  for
the first time in these proceedings, the learned senior  counsel  on  behalf
of the appellants placed reliance upon the judgment of the Privy Council  In
Connecticut Fire Insurance Co. v.  Kavanagh[5]   wherein,  Lord  Watson  has
observed as under:
“when a question of law is raised for the first time  in  a  court  of  last
resort, upon the construction of a document, or upon facts  either  admitted
or proved beyond controversy, it is not only  competent  but  expedient,  in
the interests of justice, to entertain the plea.”


The aforesaid views of the Court of Appeal have been  relied  upon  by  this
Court in Gurcharan Singh v. Kamla Singh[6]. The above  mentioned  aspect  of
Article 243ZD, although is being raised before  this  Court  for  the  first
time, we are of the view that the same is  based  on  admitted  facts.   The
legal submission made on behalf of the appellants  under  Article  243ZD  of
the Constitution has to be accepted by this Court in  view  of  the  similar
view that a new ground raising a pure question of law can be raised  at  any
stage before this Court as  laid  down  by  this  Court  in  V.L.S.  Finance
Limited v. Union of India & Ors.[7], which reads thus :-

“7. Mr Shankaranarayanan has taken an extreme stand before  this  Court  and
contends that the Company Law Board  has  no  jurisdiction  to  compound  an
offence punishable under  Section  211(7)  of  the  Act  as  the  punishment
provided  is  imprisonment  also.  Mr   Bhushan,   however,   submits   that
imprisonment is not a mandatory punishment under Section 211(7) of  the  Act
and, hence, the Company Law Board has the authority to  compound  the  same.
He also points out that this submission was not at all advanced  before  the
Company Law Board and, therefore,  the  appellant  cannot  be  permitted  to
raise this question for the first time before this  Court.  We  are  not  in
agreement with Mr Bhushan in regard to his plea that  this  question  cannot
be gone into by this Court at the first instance. In our opinion, in a  case
in which the facts pleaded give rise to a pure question of law going to  the
root of the matter, this Court possesses discretion to  go  into  that.  The
position would have been different had the  appellant  for  the  first  time
prayed before this Court for adjudication on an issue of fact  and  then  to
apply the law and hold that the Company Law Board  had  no  jurisdiction  to
compound the offence.”

Further, this Court in Greater Mohali Area Development Authority &  Ors.  v.
Manju Jain & Ors.[8] held as under :-

“26. Respondent 1 raised the plea of non-receipt of the letter of  allotment
first time before the High Court. Even if it is assumed that it is  correct,
the question does arise as to whether such a new  plea  on  facts  could  be
agitated before the writ court. It is settled legal  proposition  that  pure
question of law can be raised at any time of the proceedings but a  question
of fact which requires investigation and inquiry, and for which  no  factual
foundation has been laid by a party before  the  court  or  tribunal  below,
cannot be allowed to be agitated in the writ petition.  If  the  writ  court
for some compelling circumstances desires to entertain a  new  factual  plea
the court must give due opportunity to the opposite party to controvert  the
same and adduce the evidence to substantiate its pleadings. Thus, it is  not
permissible for the High Court to consider a new  case  on  facts  or  mixed
question of fact and law which was not the case of the  parties  before  the
court or tribunal below. [Vide State of U.P. v. Dr. Anupam Gupta, Ram  Kumar
Agarwal v. Thawar Das, Vasantha Viswanathan v. V.K.  Elayalwar,  Anup  Kumar
Kundu v. Sudip Charan Chakraborty, Tirupati  Jute  Industries  (P)  Ltd.  v.
State of W.B. and Sanghvi Reconditioners (P) Ltd. v. Union of India.]

27. In the instant case, as the new plea on fact has been raised first  time
before the High Court it could not have been  entertained,  particularly  in
the manner the High Court has dealt with as no opportunity of  controverting
the same had been given to the appellants. More so, the High Court,  instead
of examining the case in the correct perspective, proceeded in haste,  which
itself amounts to arbitrariness. (Vide Fuljit Kaur v. State of Punjab.)”

In National Textile Corporation Ltd. v. Naresh Kumar Badrikumar Jagad[9],
it was held as under:-

“19. There is no quarrel to the settled legal proposition that  a  new  plea
cannot be taken in respect of any factual controversy  whatsoever,  however,
a new ground raising a pure  legal  issue  for  which  no  inquiry/proof  is
required can be permitted to be raised by the court  at  any  stage  of  the
proceedings. [See Sanghvi Reconditioners (P) Ltd.  v.  Union  of  India  and
Greater Mohali Area Development Authority v. Manju Jain.]”


 Further, this Court has frowned upon the  practice  of  the  Government  to
raise technical pleas to defeat the rights of the citizens  in  Madras  Port
Trust v. Hymanshu International[10] wherein it was opined that it  is  about
time that governments and public  authorities  adopt  the  practice  of  not
relying upon technical pleas for the purpose of defeating legitimate  claims
of citizens and do what is fair and just to the citizens. Para  2  from  the
said case reads thus :-

“2. We do not think that this is a fit  case  where  we  should  proceed  to
determine whether the claim of the respondent was barred by Section  110  of
the Madras Port Trust Act (II of 1905). The  plea  of  limitation  based  on
this section is one which the court always looks upon with disfavour and  it
is unfortunate that a public authority like the Port Trust  should,  in  all
morality and justice, take up such a plea to defeat  a  just  claim  of  the
citizen. It is high time that governments and public authorities  adopt  the
practice of not relying upon technical pleas for the  purpose  of  defeating
legitimate claims of citizens and do what is fair and just to the  citizens.
Of course, if a government or a public authority takes up a technical  plea,
the Court has to decide it and if the plea is well-founded,  it  has  to  be
upheld by the court, but what we  feel  is  that  such  a  plea  should  not
ordinarily be taken up by a government or  a  public  authority,  unless  of
course the claim is not well-founded and by reason of delay  in  filing  it,
the evidence  for  the.  purpose  of  resisting  such  a  claim  has  become
unavailable. Here, it js obvious that the claim  of  the  respondent  was  a
just claim supported as it  was  by  the  recommendation  of  the  Assistant
Collector of Customs and hence in  the  exercise  of  our  discretion  under
Article 136 of the Constitution, we do not see  any  reason  why  we  should
proceed to hear this appeal and adjudicate upon the plea  of  the  appellant
based on Section 110 of the Madras Port Trust Act (II of 1905).”


We are also not inclined to accept  the  contention  urged  by  the  learned
senior  counsel  on  behalf  of  the  respondents  that  the  committee   is
authorised to modify or alter the Development Plan under Sections 14 and  17
read with Section 23 of the Act of 1973.

As has been mentioned earlier, section 14 of the Act confers the power  upon
the Director of Town and  Country  Planning  appointed  under  the  Act,  to
prepare development plans. However, this power conferred upon  the  Director
has to be read along  with  Section  17  of  the  Act,  which  mandates  the
Director to take into consideration, any draft Five  Year  Plan  and  Annual
Development Plan of a  district  prepared  under  the  Madhya  Pradesh  Zila
Yojana Samiti Adhiniyam, 1995. In the case in hand, there is no evidence  to
prove that the Director had taken into account any  report  made  under  the
1995 Adhiniyam. On the other hand, the evidence on  record  produced  before
us clearly shows that the Development Plan has  been  altered  to  suit  the
requisites of KVTDS. This  action  by  the  Director  is  impermissible  and
unlawful.
Therefore, we are inclined to accept the contention raised  by  the  learned
senior counsel on behalf of the  appellants  and  hold  that  KVTDS,  having
formulated  solely  by  the  Respondent  No.  2-  RDA  without  taking  into
consideration the reports of the local authority, violates the Act  of  1973
as well as Part IX and IX-A of the Constitution.

 We are inclined to agree with the fact that the Development  Plan  and  its
modification has  not  been  made  in  accordance  with  the  constitutional
mandate and the Act of 1973. It is further contended by the  learned  senior
counsel on behalf of the appellants that in the backdrop  of  the  aforesaid
Constitutional morality and the fact situation of the  cases  in  hand,  the
decision of the Respondent No.2- RDA to add 1900 acres of land at  different
stages, and also change of land use, is sullied by bias of Sri  S.S.  Bajaj,
who acted in different  capacities  in  relation  to  the  same  transaction
wherein each authority was expected to apply its mind independently of  each
other. The said contention by the learned senior counsel on  behalf  of  the
appellants is well founded and the same must  be  accepted  by  this  Court.
There is strong substance and evidence in the  submissions  of  the  learned
senior counsel of the appellants. As per the evidence  produced  before  us,
on 20.07.2009, one Sri S.S. Bajaj, served as the CEO of the  Respondent  No.
2- RDA proposed addition of 1900 acres of land  in  KVTDS.   About  20  days
later, on 10.08.2009, the  same  Mr.  S.S.  Bajaj  was  serving  as  Special
Secretary, Department of Housing  &  Environment,  Chhattisgarh  Government,
which is Respondent No.1 before us has approved the said  addition  of  1900
acres of land to the scheme which is a clear case of bias.  This  Court  has
on many occasions, mentioned the  bare  minimum  requirement  of  trust  and
fairness by the state that should  ensure  its  people  in  running  of  the
government.  In  the  case  of  Mohinder  Singh  Gill  v.   Chief   Election
Commissioner[11], this Court held as under:
“3. The moral may be stated with telling terseness in the words  of  William
Pitt: 'Where laws end, tyranny begins'. Embracing both  these  mandates  and
emphasizing their combined effect is  the  elemental  law  and  politics  or
Power best expressed by Benjamin Dizreeli:
I repeat...that all power  is  a  trust-that  we  are  accountable  for  its
exercise-that, from the people and for the  people,  all  springs,  and  all
must exist."
(Vivien Grey, BK. VI. Ch. 7)
Aside from these is yet another, bearings on the play  of  natural  justice,
its  nuances,  non-applications,  contours,  colour  and  content.   Natural
Justice is no mystic testament of judge made  juristic  but  the  pragmatic,
yet principled,  requirement  of  fairplay  in  action  as  the  norm  of  a
civilised  justice-system  and  minimum  of   good   government-crystallised
clearly in our jurisprudence by a catena of cases here and elsewhere….”

It has also been held by this Court that principles of natural  justice  are
applicable to administrative enquiries as well, and that no person can be  a
judge in his own cause. It was held in the case of A.K  Kraipak  &  Ors.  v.
Union of India & Ors.[12]:
“20.The aim of the rules of natural justice is to secure justice or  to  put
it negatively to prevent miscarriage of justice.  These  rules  can  operate
only in areas not covered by any law validly made. In other  words  they  do
not supplant the law of the land but supplement it. The concept  of  natural
justice     has undergone a great deal of change in  recent  years.  In  the
past it was thought that it included just two rules namely (1) no one  shall
be a judge in his own  case (Nemo debet esse judex propria  causa)  and  (2)
no decision  shall  be  given  against  a  party  without  affording  him  a
reasonable hearing (audi alteram partem). Very soon  there-  after  a  third
rule was envisaged and that is that quasi- judicial enquiries must  be  held
in good faith, without bias and not arbitrarily or unreasonably. But      in
the course of years many more subsidiary rules  came  to  be  added  to  the
rules of natural justice. Till    very recently it was the  opinion  of  the
courts that unless the authority concerned was required  by  the  law  under
which it functioned to  act  judicially  there  was  no       room  for  the
application of the  rules     of  natural  justice.  The  validity  of  that
limitation is now questioned.  If  the  purpose  of  the  rules  of  natural
justice is to prevent miscarriage of justice one fails  to  see  why   those
rules should be made inapplicable to administrative enquiries.  Often  times
it is not easy to draw the line  that  demarcates  administrative  enquiries
from    quasi-judicial   enquiries.   Enquiries   which   were    considered
administrative at one time are now being  considered  as  quasi-judicial  in
character. Arriving at a just decision is the aim of  both  quasi-  judicial
enquiries as well as administrative enquiries.”

For the above reason alone  as  rightly  contended  by  the  learned  senior
counsel on behalf of the appellants, the enhancement of land  in  the  KVTDS
is vitiated due to lack of objectivity and non-application of mind.
The initial intention to prepare the KVTDS of 416.93 acres was published  in
the Gazette  on  05.06.2009.  Thereafter,  on  14.07.2009,  Sri  S.S.  Bajaj
serving as CEO of Respondent No. 2- RDA presided over  the  meeting  of  the
Board of Directors of the RDA wherein the decision  to  add  1900  acres  of
land of villages including Dumartarai Village to KVTDS was  taken.  Pursuant
to the said Board Resolution, the CEO-RDA sent a proposal  dated  20.07.2009
to the State Government seeking addition of an area of  1900  acres  to  the
KVTDS.  It is clear from the minutes of the Board meeting  on  14.7.2009  as
well  as  the  said  proposal  dated  20.7.2009  that  no  prior  survey  or
assessment of the need for addition of land to the area of  the  scheme  was
undertaken by the RDA.

As rightly pointed out by the  learned  senior  counsel  on  behalf  of  the
appellants, a proposal for  the  Town  Development  Scheme  required  to  be
submitted to the State Government in accordance with  the  Government  Order
dated 18.11.1999 and it is the obligation of the  Respondent  No.  1-  State
Government to independently consider such a proposal and exercise  its  mind
as to whether the same is  proper  and  if  it  raises  concerns  of  public
interest when such inclusion  of  the  land  use  is  made  under  the  Town
Development Scheme.  Independently, it is evident  from  the  fact  that  on
20th July, 2009, a proposal was sent by the Respondent No.  2-  RDA  to  the
Respondent No. 1- State Government and the same was  approved  by  Sri  S.S.
Bajaj,  who  at  that  point  of  time  was  acting  as  Special  Secretary,
Department of Housing and Environment, Government of  Chhattisgarh  who  had
also proposed the addition of 1900 acres to be included in the  scheme  when
he was acting as the CEO of the RDA. It is evident from the evidence put  on
record  before  us  that  the  same  person  was  acting  in  two  different
capacities who proposed as well as accepted the plan of addition of land  at
subsequent stage. The said proposal was accepted within a span  of  20  days
only i.e. on 10.08.2009.

In view of the aforesaid undisputed facts as  pointed  out  by  the  learned
senior counsel on behalf of the appellants, the aforesaid decision taken  by
Sri S.S. Bajaj as Special Secretary, Department of Housing and  Environment,
Government of Chhattisgarh (Respondent No. 1) in approving the  proposal  of
RDA to include large extent of land to the KVTDS is  vitiated action in  law
as the same is tainted with bias and non-application of mind on the part  of
the State Government-Respondent No.1 with regard  to  the  proposal  of  the
Respondent No. 2- RDA to include large extent of land in  the  scheme.   The
Respondent No. 2- RDA released an affidavit dated 23.11.2010 on  the  ground
of challenge by stating that:
“all decisions and actions have been taken by the Authority and not  by  any
individual.  Even otherwise the communications done by the officer  for  the
answering respondent was not his individual communication but was on  behalf
of the Committee as well as Board of Directors and therefore  could  not  be
said to have in his individual capacity. Likewise,  whole  corresponding  on
behalf of the State Government and on behalf of His Excellency the  Governor
and in his individual capacity.”

 However on the basis of the evidence on record produced before us,  we  are
unable to concede with the affidavits so released by Respondent No.  2-  RDA
since the evidence of bias and self-interest is evident. This Court  in  one
occasion, in the case of The State of Punjab and Anr. v. Gurdial  Singh  and
Ors.[13] opined with respect to mala fide  in  jurisprudence  of  power,  as
under :-

“9. The question, then, is what  is  mala  fides  in  the  jurisprudence  of
power? Legal malice is gibberish unless juristic clarity keeps  it  separate
from the popular concept of personal vice.  Pithily  put,  bad  faith  which
invalidates the exercise of power sometimes called  colourable  exercise  or
fraud on power and oftentimes overlaps motives, passions  and  satisfactions
is the attainment of ends  beyond  the  sanctioned  purposes"  of  power  by
simulation or pretension of gaining a legitimate goal. If  the  use  of  the
power is for  the  fulfilment  of  a  legitimate  object  the  actuation  or
catalysation by malice is not legicidal. The action is bad  where  the  true
object is to reach an end different from the one  for  which  the  power  is
entrusted, goaded by extraneous considerations, good or bad, but  irrelevant
to the entrustment. When  the  custodian  of  power  is  influenced  in  its
exercise by considerations outside those for promotion of  which  the  power
is vested the court calls it a colourable  exercise  and  is  undeceived  by
illusion. In a broad, blurred sense, Benjamin Disraeli was not off the  mark
even in Law when he stated: "I repeat that all power is a trust that we  are
accountable for its exercise that, from the people, and for the people,  all
springs, and all must exist".Fraud on power voids the order  if  it  is  not
exercised bona fide for the end designed.  Fraud  in  this  context  is  not
equal to moral  turpitude  and  embraces  all  cases  in  which  the  action
impugned is to effect some object which is beyond the purpose and intent  of
the power, whether this be malices-laden or even benign. If the  purpose  is
corrupt the resultant act is bad. If considerations, foreign  to  the  scope
of the power or extraneous to the statute, enter the verdict  or  impel  the
action mala fides or fraud on  power,  vitiates  the  acquisition  or  other
official act.”

In the case in hand, we are convinced that the action  taken  by  Respondent
No. 2- RDA as mentioned in the affidavit issued by it, meets different  ends
than the reason for which power had been assigned to it. It is contended  by
the learned senior counsel on behalf of the appellants  that  there  was  no
“Committee” in place. We are in agreement with  this  contention  raised  by
the learned senior counsel. As per the Order issued by  the  Revenue  Branch
of Respondent No. 2- RDA, the said Committee which was to review the  scheme
under Section 50(5) of the Act of 1973, was constituted  only  on  or  about
30.11.2009 but the decision to further extend the land size  into  the  Town
Development Scheme can be traced as early as 14.7.2009 with  the  report  of
Board Meeting No. 03/09.
 Apart from the said contravention made by the Respondent No.  2-  RDA,  its
proposal to have township of 2300 acres of land was examined by a  Committee
constituted under Section 50(5) of the  Act  of  1973,  which  prepared  its
report dated 8.6.2010.  The same was accepted by Shri S.S.  Bajaj,  Chairman
of Respondent  No.  2-RDA  in  the  Board  meeting  held  on  21.6.2010  and
22.6.2010. Therefore, the entire exercise made by RDA under Section  50  (5)
of the Act has been rendered otiose and an empty formality in the  light  of
the decisions of this Court mentioned supra and in  view  of  the  aforesaid
undisputed facts in relation to the action taken by the  Respondent  No.  1-
State  Government,  to  give  permission  only  after  applying   its   mind
independently on the materials submitted by the Respondent No.  2-RDA  which
is not done by the State Government and therefore, the  power  exercised  by
the State Government in sanctioning the proposed scheme of Respondent No. 2-
 RDA has rendered otiose. It is a well established principle in  the  Indian
jurisprudence that no one can be a judge in his own case. The fact has  been
established by various decisions of this Court. It was held in the  case  of
M/s. J. Mohapatra and Co. and Anr. v. State of Orissa & Anr.[14] as under:
“12. There is, however, an exception to the above rule that no men shall  be
a  judge  in  his  own  cause,  namely,  the  doctrine  of   necessity.   An
adjudicator, who is subject to disqualification on the  ground  of  bias  or
interest in  the  matter  which  ha  has  to  decide,  may  be  required  to
adjudicate if there is no other person who is  competent  or  authorized  to
adjudicate or if a quorum cannot be  formed  without  him  or  if  no  other
competent tribunal can be  constituted.  In  such  cases  the  principle  of
natural justice would have to give way  to  necessity  for  otherwise  there
would be no means of deciding the matter and the  machinery  of  justice  or
administration would break down. Thus, in  The  Judges  v.  Attorney-General
for Saskatchewan 53 TLR 464, the Judges of the Court  of  Appeal  were  held
competent to decide the question whether Judges of the Court of  Appeal,  of
the Court of King's Bench and of the District  Courts  of  the  Province  of
Saskatchewan were subject to taxation under the  Income-tax  Act,  1932,  of
Saskatchewan on the ground that they were bound to act ex  necessitate.  The
doctrine of necessity applies not only  to  judicial  matters  but  also  to
quasi-judicial and administrative matters. The High Court, however,  wrongly
applied  this  doctrine  to  the  author-members  of  the  Assessment   Sub-
Committee. It is true, the members of this Sub-Committee were  appointed  by
a Government Resolution and some of them were appointed  by  virtue  of  the
official position they were  holding,  such  as,  the  Secretary,  Education
Department of the Government of Orissa, and the Director, Higher  Education,
etc.  There  was,  however,  nothing  to  prevent  those  whose  books  were
submitted for selection from pointing out this fact to the State  Government
so that it  could  amend  its  Resolution  by  appointing  a  substitute  or
substitutes, as the case may be. There was equally nothing to  prevent  such
nonofficial author-members from resigning from the committee on  the  ground
of their interest in the matter.”

Therefore, in the light of the reasons mentioned by us above, we are of  the
considered view that there is total lack  of  application  of  mind  by  the
Respondent No. 1- State Government in not taking into consideration all  the
relevant aspects while declaring the KVTDS as well  as  the  finance  Scheme
proposed by the  Respondent  No.  2-  RDA.   The  Respondent  No.  1-  State
Government could not have sanctioned the aforesaid Scheme as the same is  in
contravention to the procedure laid down comprehensively in  Section  50  of
the Act of 1973.  The initial approval of the Scheme was  on  25.1.2008  and
approval to add 1900 acres of land to KVTDS dated 10.08.2009 was granted  by
the  State  Government  without  any  application  of  mind  and   objective
consideration by  the  Respondent  No.  1-State  Government  which  fact  is
expressly clear as the said proposed scheme was neither in  accordance  with
the Development Plan nor did any Zonal Plan which existed  at  the  material
point of time.  Therefore, for the reasons mentioned by us, we  answer  this
point in favour of the appellants.
Answer to Point No. 2
It is contended by the learned senior counsel on behalf  of  the  appellants
that the Town Development Scheme KVTDS prepared in the case in hand,  is  in
contravention to the provisions laid down in Section 50 of the Act.
Section 50(1) of the Act of 1973 reads thus:
“Preparation of Town Development Schemes-
The Town and Country Development Authority may, at  any  time,  declare  its
intention to prepare a Town Development Scheme:
[Provided that no such declaration of  intent  shall  be  made  without  the
prior approval of the State Government].
………”

Reliance has been placed upon the phrase “at any time” in Section  50(1)  of
the Act of 1973 by the learned senior counsel on behalf  of  the  appellants
contending  that  it  is  not  a   source   of   arbitrary   and   unbridled
power/discretion to exercise  its  power  arbitrarily  but  requires  study,
survey and assessment of need/requirement of plots for the residents of  the
area  before the intention of the RDA  can  be  declared  by  the  Town  and
Country Development Authority.

 In this regard, the learned senior counsel  on  behalf  of  the  appellants
have rightly placed reliance upon the judgment of this Court in the case  of
Chairman, Indore Vikas Pradhikaran (supra), wherein it was held as under:
“80. Section 50(1) of the Act provide for declaration of this  intention  to
prepare town development scheme “at any time”. The words “at  any  time”  do
not confer upon any statutory authority an unfettered  discretion  to  frame
the town development scheme whenever it so pleases. The words “at any  time”
are not charter for the exercise of an arbitrary  decision  as  and  when  a
scheme has to be framed. The words “at any time” have no exemption from  all
forms of limitation for unexplained and undue delay. Such an  interpretation
would not only result in the destruction of citizens’ rights but would  also
go contrary to the entire context in which the power has been given  to  the
authority.

81. The words “at any time” have to be interpreted in the context  in  which
they are used. Since a town development scheme in the context of the Act  is
intended to implement the development plan, the declaration of intention  to
prepare a scheme can only be in the  context  of  a  development  plan.  The
starting point of the declaration of  the  intention  has  to  be  upon  the
notification of development plan and the outer limit for  the  authority  to
frame such a scheme  upon  lapsing  of  the  plan.  That  is  the  plausible
interpretation of the words “at any time” used in Section 50(1) of the  Act.
(See State of H.P. v. Rajkumar Brijender Singh.”

The phrase “at any time” under Section 50(1) of the Act  is  not  a  charter
for the exercise of an arbitrary decision as and when a  scheme  has  to  be
framed.  The words ‘At any  time”  have  no  exemption  from  all  forms  of
limitation for unexplained and undue delay.  Such  an  interpretation  would
not only result  in  destruction  of  citizens  rights  but  would  also  go
contrary to the entire context in which the power has  been  conferred  upon
the authority.
Also, a proviso added to Section 50(1) of the Act in the  year  2012  states
that a Development Authority can declare its  intention  of  preparing  Town
Development Scheme only with the prior approval of the State Government.

Section 49 of the Act of 1973 provides for the  matters  for  which  a  Town
Development Scheme can be prepared. Section 49 of the Act reads thus:
“49. Town Development Scheme- A Town Development Scheme may  make  provision
for any of the following matters:-
(i) acquisition, development and sale or leasing of land for the purpose  of
town expansion;
(ii) acquisition, relaying out of, rebuilding,  or  relocating  areas  which
have been badly laid out or which has developed or degenerated into a slum;
(iii) acquisition and development  of  land  for  public  purposes  such  as
housing development, development  of  shopping  centres,  cultural  centres,
administrative centres;
(iv) acquisition and development of  areas  for  commercial  and  industrial
purposes;
(v) undertaking of such building or construction work as  may  be  necessary
to provide housing, shopping, commercial and other facilities;
(vi) acquisition of land and its development for the purpose of  laying  out
or remodelling of road and street patterns;
(vii)  acquisition  and  development  of  land   for   playgrounds,   parks,
recreation centres and stadia;
(viii) re-construction  of  plots  for  the  purpose  of  buildings,  roads,
drains, sewage lines and other similar amenities;
(ix) any other work of a nature such  as  would  bring  about  environmental
improvements which may be taken up by the authority with prior  approval  of
the State Government.”

Section 50(1) of the Act of 1973 vests the  jurisdiction  on  the  Town  and
Country Development Authority to declare its intention for preparing a  Town
Development Scheme, which in this case is the Respondent No. 2-RDA.  Section
49 provides that a Town Development Scheme can be proposed for  the  purpose
of  town  expansion,  for  rebuilding  and  regenerating  areas  which  have
degenerated into slums, acquire and development land for public,  commercial
and industrial purpose and also for  other  work  which  would  bring  about
environmental improvement which shall  also  be  taken  up  with  the  prior
approval of the State Government.  It may be noted that  Respondent  No.  2-
RDA has not put any document on record, either  before  the  High  Court  or
this Court which shows any assessment of “need” or  “requirement”  for  town
expansion conducted by it prior to proposing the KVTDS.  Even  though  KVTDS
has allegedly been introduced for a population of 16,000 per  40  Hect.   of
land there is no document /survey report on record  to  show  how  the  said
figure was arrived at by the RDA.  The requirement of  such  assessment  was
all the more necessary because already a new capital  called  ‘Naya  Raipur’
has been built near Raipur.


 Further, frequent changes in the extent of land acquired for the  KVTDS  by
the RDA is a very strong indicator of the fact that there  is  no  rationale
behind the proposal of  the  said  Scheme.  The  Respondent  No.2-  RDA  had
proposed the area of KVTDS to be 900  acres  on  31.7.2006,  1100  acres  on
14.11.2006, 394 acres on 3.6.2008 and eventually 2300  acres  on  20.7.2009,
without assigning reasons for coming to such conclusions  in  expanding  the
area to the scheme. In view of the above, there is clear non-application  of
mind on the part  of  the  State  Government  behind  the  increase  in  the
sanctioned area of KVTDS from 416.93 acres of land to 2300  acres  of  land.
In fact, in the letter dated 27.8.2008  to  the  Joint  Director,  Town  and
Country Planning Authority, it has been  specifically  noted  that  physical
survey of the area must be carried out.  It  is  contended  by  the  learned
senior counsel on behalf of  the  appellants  that  even  the  letter  dated
20.7.2009 addressed by Respondent No. 2- RDA to the Respondent No. 1-  State
Government admits that survey  of the area is being carried out  in  respect
of previous 416.93 acres of land.  In the  instant  case,  the  proposal  to
have KVTDS as well as sanction for the same by the Respondent No.  1-  State
Government, is not preceded by a survey  of  the  area,  which  renders  the
exercise of its power of ex post facto survey into an empty formality  which
action of it is wholly unsustainable in law.

Further, the purpose of the KVTDS as has been cited by the Respondent No. 2-
 RDA, is only with the purpose of curbing  illegal  plotting  which  can  be
served by regulating development work by exercise of statutory power  vested
in the Respondent No. 2- RDA under the  Act  of  1973.  On  the  pretext  of
regulating development  or  stopping  illegal  construction/  plotting,  the
Respondent No.2- RDA  cannot  take  away  the  land  of  the  appellants  in
exercise of the power of eminent domain by the State  Government.  The  Town
Development Scheme envisaged under Section 49 of the Act is for the  purpose
of acquisition, development and sale or leasing of land for the  purpose  of
town expansion. Under Section 49 (i) and (ii) of  the  Act,  the  Respondent
No. 2- RDA has power only to provide  for  housing  and  not  for  plotting.
Reconstruction of plot under  Section  49  clause  (viii)  of  the  Act,  is
confined only for the limited purpose of buildings, roads,  drains,  sewage,
sewage lines and other similar amenities. Reliance was also  placed  by  the
learned senior counsel on behalf of the appellants, on the decision of  this
Court in the case of Bondu Ramaswamy v. Bangalore Development  Authority[15]
to show that  this  Court  had  already  expressed  its  concern  about  the
lackadaisical manner in which the land is acquired by the  State  Government
in favour of the Bangalore Development Authority for housing scheme  in  the
metropolitan area without conducting proper enquiry about the  need  of  the
residents of the area and plights of the land owners. It  was  held  in  the
case as under :
“150. Frequent complaints and grievances in regard  to  the  following  five
areas, with reference to the prevailing system of acquisitions  governed  by
Land Acquisition Act, 1894, requires  the  urgent  attention  of  the  state
governments and development authorities:
(i) absence of proper or adequate survey and planning before embarking  upon
acquisition;
(ii) indiscriminate use of emergency provisions in  Section  17  of  the  LA
Act;
(iii) notification of areas far larger than what is actually  required,  for
acquisition, and then making arbitrary deletions and  withdrawals  from  the
acquisitions;
(iv)  offer  of  very  low  amount  as  compensation  by  Land   Acquisition
Collectors, necessitating references to court in almost all cases;
(v) inordinate delay in payment of compensation; and
(vi) absence of any rehabilitatory measures.
While the plight of project oustees and landlosers affected  by  acquisition
for industries has been frequently highlighted in the media, there has  been
very little effort to draw attention to the plight of  farmers  affected  by
frequent acquisitions for urban development.”

XXX           XXX            XXX

156. When BDA prepares a development scheme it is  required  to  conduct  an
initial survey about the availability and suitability of  the  lands  to  be
acquired. While acquiring 16 villages at a stretch, if in respect of any  of
the [pic]villages, about 30% area of the village  is  not  included  in  the
notification under Section 4(1) though available for  acquisition,  and  out
of the remaining 70% area which is notified, more than half (that is,  about
40% of the village area) is deleted when final notification is  issued,  and
the acquisition is only of 30% area which is non-contiguous, it  means  that
there was no proper survey or  application  of  mind  when  formulating  the
development scheme or that the deletions were for  extraneous  or  arbitrary
reasons.

157. Inclusion of the land of a person in an acquisition notification, is  a
traumatic experience for the landowner, particularly if  he  was  eking  out
his livelihood from that land. If large areas are notified  and  then  large
extents  are  to  be  deleted,  it  breeds  corruption  and  nepotism  among
officials. It also creates hostility, mutual distrust and  disharmony  among
the villagers, dividing them on the lines of “those who  can  influence  and
get their lands  deleted”  and  “those  who  cannot”.  Touts  and  middlemen
flaunting political  connections  flourish,  extracting  money  for  getting
lands deleted. Why subject a large number  of  citizens  to  such  traumatic
experience?  Why  not  plan  properly  before  embarking  upon   acquisition
process? In this case, out of  the  four  villages  included  at  the  final
stages of finalising the development scheme, irregularities have been  found
at least in regard to three  villages,  thereby  emphasising  the  need  for
proper planning and survey before embarking upon acquisition.

158.  Where  arbitrary  and  unexplained  deletions  and   exclusions   from
acquisition, of large extents of notified  lands,  render  the  acquisitions
meaningless, or totally unworkable, the court will have no  alternative  but
to quash the entire acquisition. But where many land  losers  have  accepted
the acquisition and received  the  compensation,  and  where  possession  of
considerable  portions  of  acquired  lands  has  already  been  taken,  and
development activities have been  carried  out  by  laying  plots  and  even
making provisional or actual allotments, those  factors  have  to  be  taken
note of, while granting relief. The Division Bench has  made  an  effort  to
protect the interests of all parties, on the  facts  and  circumstances,  by
issuing detailed directions. But  implementation  of  these  directions  may
lead to further litigations and complications.”

Section 2 (u) of the Act of 1973 defines a  Town  Development  Scheme  as  a
scheme formulated to implement the developmental plan. In the instant  case,
the development plan is the Master Plan of Raipur planning area.  Therefore,
the very definition clearly states that unless master plan allows use  of  a
particular area as ‘residential’, it is not open for  the  Respondent  No.2-
RDA to propose a township or a town development scheme whose land use is  at
variance with the one provided in the development plan.  Till such  time  as
the lands in question is notified for residential use, the Respondent No. 2-
 RDA cannot propose a Town Development scheme for the said land.
Respondent No.2- RDA is entrusted with a duty to implement the  master  plan
under Section 38(2) of the Act of  1973.   The  resolution  dated  5.11.2009
passed by the Respondent No. 2-RDA proposing to the State government to  get
the land use changed under Section 23A of the Act in order to implement  its
township project either by itself or the CEO, on their own or  in  a  manner
that is inconsistent with the text as well the  provisions  of  the  Act  of
1973.  In this regard, this Court has already laid down the legal  principle
in the case of Bangalore Medical Trust v. B.S. Muddappa[16], which reads  as
under:
“49. ….. There is no Section either in the Act nor any rule  was  placed  to
demonstrate that the Chairman alone, as such, could exercise  the  power  of
the Authority. There is no whisper nor there  is  any  record  to  establish
that any meeting of the Authority  was  held  regarding  alteration  of  the
scheme. In any case the power does not vest in the State Government  or  the
Chief Minister of the State. The exercise of power is further hedged by  use
of the expression, if 'it appears to the Authority'.  In  legal  terminology
it visualises prior consideration and objective decision. And all this  must
have  resulted  in  conclusion  that  the   alteration   would   have   been
improvement. Not even one was followed. The Chairman could  not  have  acted
on his own. Yet  without  calling  any  meeting  of  the  authority  or  any
committee he sent the letter for converting the site. How did it  appear  to
him that it was necessary, is mentioned in  the  letter  dated  21st  April,
because the Chief Minister desired so. The purpose of the  Authority  taking
such a decision is their knowledge of local conditions and what  was  better
for them. That  is  why  participatory  exercise  is  contemplated.  If  any
alteration in Scheme could be done by the Chairman and  the  Chief  Minister
then Sub-section  (4)  of  Section  19  is  rendered  otiose.  There  is  no
provision in the Act for alteration in a scheme by converting  one  site  to
another, except, of course if it appeared to be improvement. But  even  that
power vested in the Authority not the Government. What should have  happened
was that the Authority should have applied its mind and must  have  come  to
the conclusion that conversion of the site reserved for public park  into  a
private nursing home amounted to an improvement  then  only  it  could  have
exercised the power. But what happened in fact was that the application  for
allotment of the site was accepted first  and  the  procedural  requirements
were attempted to be gone through later and that  too  by  the  State  Govt.
which was not authorised to do so. Not  only  that  the  Authority  did  not
apply its mind and take any decision if there was  any  necessity  to  alter
the Scheme but even if it is assumed that the State  Govt.  could  have  any
role to play, the entire exercise instead of  proceeding  from  below,  that
is, from the BDA to State Government proceeded in reverse  direction,  that,
from the State Government to the BDA……”

As per the factual averments of  this  case,  the  Respondent  No.  2-  RDA,
without any resolution of the Board, on its own motion, addressed  a  letter
dated 31.7.2006 and approached the State Government for change of  land  use
because it had to propose the township in Tikrapara, Devpuri and  Boriakhurd
villages. Thereafter, KVTDS was  also  proposed,  published,  finalised  and
approved before the land use was changed by the State Government. Under  the
provisions of the Act of 1973, the development plan/ Raipur Master  Prevised
2021 that is prevailing, the Respondent No. 2-  RDA as  well  as  the  State
Government gave primacy to KVTDS and sought changes in the  master  plan  to
suit KVTDS. This is impermissible in law.  The finding recorded by the  High
Court of Chhattisgarh, Bilaspur, in its judgment  in  this  regard  that  no
finality can be attached  to  the  master  plan  is  an  erroneous  finding.
Accordingly, we are of the opinion that the Town  Development  Scheme  which
is KVTDS in the present case, was not prepared in  accordance  with  Section
50 of the Act of 1973 and we hold that KVTDS is ultra vires to  the  Act  of
1973.
Answer to Point No. 3
Though we have answered point no. 2 in favour of the  appellant,  we  intend
to mention other grounds too, which render KVTDS  as  illegal.  The  learned
senior counsel on behalf of the appellants contended that in the absence  of
a zonal plan, a Town Development Scheme cannot be framed by  Respondent  No.
2- RDA, and therefore, the  acquisition  proceedings  of  the  land  of  the
appellants cannot be allowed to sustain.
    The town development scheme is always subservient to the master plan  as
well as the zonal plan, as provided under Section 17 of  the  Act  of  1973,
which reads as under :-
“Section 17: Contents of development plan. A  development  plan  shall  take
into account any  draft  five  year  and  Annual  Development  plan  of  the
district prepared under the Madhya Pradesh  Zila  Yojana  Samiti  Adhiniyam,
1995 (No. 19 of 1995) in which the planning area is situated......”

Master plan falls within the category of  broad  development  plans  and  is
prepared by only after taking into account the  Annual  Development  Reports
prepared  by  constitutionally  elected  bodies  of  local  panchayats   and
municipalities etc. A zonal plan is mandated to be prepared only  after  the
publication of the Development Plan. Section 20 of the Act reads thus:
“20. Preparation of Zonal Plans- The Local Authority may on its  own  motion
at any time after the publication of the development plan, or thereafter  if
so required by the State Government shall, within the  next  six  months  of
such requisition, prepare a Zoning Plan”

Further, Section 21 of the Act reads thus:

Section 21: Contents of zoning plan. The zoning  plan  shall  “enlarge”  the
details of the land use as indicated in the development plan....
                                                (emphasis laid by the Court)

Thus, it is evident from the language of Sections 20  and  21  of  the  Act,
that a Zonal Plan can be prepared only in adherence to the Development  Plan
which in the present case is the Raipur Master Plan of 2021.
    Next, Section 49 of the Act which provides for the provisions for  which
a Town Development Scheme can  be  prepared,  has  to  be  read  along  with
Section 21 of the Act, which clearly mentions that  the  land  required  for
acquisition by the Town and Country Development Authority  for  the  purpose
of any development scheme has to be laid down in the Zonal Plan.
    Therefore, a combined reading of Sections 17, 21 and 49 lays  down  that
the Development Plan is the umbrella under which a zonal plan  is  made  for
the city. The zonal  plan  in  turn,  allocates  the  land  which  could  be
acquired for town development schemes. The Respondent  No.  2-  RDA  on  the
other hand, has taken the following stand in their common counter  affidavit
dated 23.11.2011 filed in the writ petition proceedings:
“That, thus, earlier the Master Plan, 2021 is modified as per  scheme  under
Section 23A or the scheme is modified  as  per  Master  Plan  under  Section
52(1) (b) of the Act, the net results remains that there is no violation  of
Master Plan, 2021 and therefore, the allegations of the petitioner that  the
scheme has been formulated and finalised in violation of  the  Master  Plan,
2021 is incorrect.”

Therefore, in the absence of a zonal plan in place, the  Respondent  No.  2-
RDA has skipped the legal  mandate  in  place  for  preparation  of  a  Town
Development Scheme.
The importance of zonal planning lies in  its  distinguished  characteristic
which lays down with sufficient particularity the use to which a  particular
piece of land could be put. The object and purpose of the  1973  Act  itself
foresees  that  zonal  plan  is  necessary  for  implementation  of  a  Town
Development Scheme. The preamble of the Act clearly discloses  that  a  Town
Development Scheme is at best a vehicle to implement  the  Development  Plan
and Zonal Plan. The object and purpose of the Act reads thus:
“An Act to make provision for planning and development and use of  land;  to
make better provision for the preparation of development  plans  and  zoning
plans with a view to ensuring town planning schemes are  made  in  a  proper
manner and their execution is made effective to,…..”
                                               (emphasis laid by this Court)

Therefore, the Object and Purpose of the  Act  also  provides  that  a  Town
Development Scheme can be prepared in the presence of a Zonal Plan which  in
turn has to be prepared for the implementation of the Development Plan.
In fact, Section 2(g) of the Act  of  1973  defines  “development  plan”  as
including “a zonal  plan”.  Therefore,  unless  a  Zonal  Plan  and  also  a
development plan is prepared, a Town Development Scheme cannot be  proposed.
 The provisions of Sections 49 and 50  of  the  Act  of  1973  categorically
provide for “Development Plan” to mean  “master  plan”  as  well  as  “Zonal
Plan”.

In the case in hand, the KVTDS has been prepared in the absence of  a  Zonal
Plan. It is not possible to define the utilization of land  under  the  Town
Development Scheme unless the Zonal Plan formulated by the  local  authority
describes with sufficient particularity the details for  which  the  broadly
indicated use of land in the Development Plan may be put. Respondent No.  2-
RDA is not permitted to either usurp or bypass the  power  vested  with  the
local authorities for preparing town development scheme in  the  absence  of
zoning plan merely on the ground that the local authority did  not  exercise
its  constitutional  power  in  preparing  the  zonal  plan  following   the
direction of Respondent No. 1- State Government under Section 20 of the  Act
of 1973. A mere glance at the Master Plan would clearly go to show  that  it
does not  set  out  the  detailed  land  use  with  sufficient  particulars.
Therefore, the framing of a Zonal Plan by local authority in  laying  out  a
detailed plan of land use with sufficient particulars  is  a  sine  qua  non
under the provisions of the Act.


The legal contention  urged  on  behalf  of  the  respondents  that  a  Town
Development Scheme can be framed pursuant to the  Development  Plan  without
there being a zonal plan, is not sustainable.  The  learned  senior  counsel
Mrs. Pinky Anand and Mr. Prashant Desai on behalf of the respondents  relied
upon the Act pari materia for the State of Gujarat where the  Town  Planning
Act does not contemplate a Zonal Plan, and which contemplates “DP-TP”.


The letter of Respondent No. 2-RDA dated 20.07.2009 addressed to  Respondent
No. 1- State Government seeking permission for the Town  Development  Scheme
in the enhanced area itself highlights the importance of planning  at  Zonal
level to stop illegal  development.  Having  regard  to  the  provisions  of
Sections 17, 19, 20, 21 and 49 of the Act of 1973, the relationship  between
the scope of Development Plan, Zoning Plan and Town Development  Scheme  can
be well understood and in view of the aforesaid provisions and  the  factual
position in relation to the KVTDS, unless a Zoning Plan exists,  it  is  not
possible for the Planning Authority to ascertain as to which area is  to  be
used for which purpose. A development authority under Section 38(2)  of  the
1973  Act  cannot,  in  the  name  of  planning  and  implementing  a   Town
Development Scheme, usurp the power of the local authorities and define  the
land use under the Town Development Scheme and  subsequently,  seek  changes
in the Master Plan to bring it in conformity with the KVTDS. In  support  of
this contention, reliance  has  been  placed  upon  by  the  learned  senior
counsel on behalf of the  appellants  on  the  judgment  of  this  Court  in
Chairman, Indore  Vikas  Pradhikaran  case  mentioned  supra,  the  relevant
portion of which is quoted hereunder :
“37. When a planning area is defined,  the  same  envisages  preparation  of
development plan and the manner in which the existing  land  use  is  to  be
implemented. A development plan in some statutes is also known as  a  master
plan. It lays  down  the  broad  objectives  and  parameters  wherewith  the
development plan is to  deal  with.  It  also  lays  down  the  geographical
splitting giving rise to preparation and finalization of  zonal  plans.  The
zonal plans contain more detailed and specific maters than the  master  plan
or the development plan. Town  planning  scheme  or  lay-out  plan  contains
further details on plot-wise basis. It may provide for the manner  in  which
each plot shall be dealt with as also the matter relating to regulations  of
development.
      XXX        XXX         XXX
72. Land use, development plan and zonal  plan  provided  for  the  plan  at
macro level whereas the town planning scheme is at a micro level and,  thus,
would be subject  to  development  plan.  It  is,  therefore,  difficult  to
comprehend that broad based macro level planning may not at all be in  place
when a town planning scheme is prepared.
       XXX        XXX         XXX
75. The purpose of declaring the intent under Section 50(1) of  the  Act  is
to implement a development plan. Section 53 of the Act  freezing  any  other
development is  an  incidence  arising  consequent  to  the  purpose,  which
purpose is to implement a development plan.  If  the  purpose  of  declaring
such an intention is merely to bring  into  play  Section  53,  and  thereby
freeze all development, it would amount to exercise of the power of  Section
50(1) for a collateral purpose, i.e., freezing of  development  rather  than
implementation of a development plan. The collateral purpose  also  will  be
to indirectly get over the fact that an owner of land  pending  finalization
of a development plan has all attendant rights of ownership subject  to  the
restraints under Section 16. If the declaration of  intent  to  formulate  a
town development scheme is to get over Section  16  and  freeze  development
activities under Section 53, it would amount to  exercise  of  power  for  a
collateral purpose.
76. A bare perusal of  Sections  17  and  49  would  show  that  it  is  the
development plan which determines the manner of usage of the  land  and  the
town development scheme enumerates the manner in which such  proposed  usage
can be implemented. It would follow  that  until  the  usage  is  determined
through a development plan, the stage of manner of  implementation  of  such
proposed usage cannot be brought about. It would also therefore follow  that
what is  contemplated  is  the  final  development  plan  and  not  a  draft
development plan, since until the development plan  is  finalized  it  would
have no statutory or legal force and the land use as existing prior  thereto
with the rights of usage of the land arising therefrom would continue.
77. To accept that it is open to the town development authority  to  declare
an  intention  to  formulate  a  town  development  scheme  even  without  a
development plan and ipso facto bring into play a freeze  on  usage  of  the
land under Section 53 would lead to complete misuse of powers and  arbitrary
exercise thereof depriving the citizen of his right to use the land  subject
to the permitted land use and laws relating to the manner of usage  thereof.
This would be an unlawful deprivation of the  citizen's  right  to  property
which right includes within it the right to use the property  in  accordance
with the law as it stands at such  time.  To  illustrate  the  absurdity  to
which such an interpretation could lead it would then  become  open  to  the
town  development  authority  to  notify  an  intent  to  formulate  a  town
development scheme even in the absence of a  development  plan,  freeze  all
usage of the property by a owner thereof by virtue  of  Section  53  of  the
Act, and should no development  plan  be  finalized  within  3  years,  such
scheme would lapse and the authority thereupon would merely notify  a  fresh
intent to formulate a town development scheme  and  once  again  freeze  the
usage of the  land  for  another  three  years  and  continue  the  same  ad
infinitum thereby in effect completely depriving the citizen  of  the  right
to use his property which was in a manner otherwise permitted under  law  as
it stands.
78. The essence of planning in the Act is the  existence  of  a  development
plan. It is a development plan, which under Section  17  will  indicate  the
areas and zones, the users, the open spaces, the institutions  and  offices,
the special purposes, etc. Town planning would be based on the  contents  of
the development plan. It is only when the development plan is in  existence,
can a town planning scheme be framed. In fact, unless  it  is  known  as  to
what  the  contents  of  a  possible  town  planning  scheme  would  be,  or
alternatively, whether in terms of the development plan  such  a  scheme  at
all is required, the intention to frame the scheme cannot be notified.
        XXX        XXX         XXX
87. An area conceived of under the Act, as  noticed  hereinbefore,  consists
of both plan area and non-plan area. Development of  plan  area  may  be  in
phases. A master plan may be followed by a zonal plan and a zonal  plan  may
be followed by a town development scheme.”

Further, the learned  senior  counsel  on  behalf  of  the  appellants  have
rightly placed reliance upon the principle  of  Constitutional  morality  as
explained by Dr. B. R. Ambedkar to the Constituent Assembly on 4th  November
1948.  The relevant portion of which is extracted hereunder:
“While  everybody   recognizes   the   necessity   of   the   diffusion   of
Constitutional  morality  for  the  peaceful   working   of   a   democratic
Constitution, there are two things interconnected with  it  which  are  not,
unfortunately, generally recognized. One is that the form of  administration
has a close connection with the form of the Constitution. The  form  of  the
administration must be appropriate to and in the same sense as the  form  of
the Constitution. The other is that it is perfectly possible to pervert  the
Constitution, without changing its form by merely changing the form  of  the
administration and to make it inconsistent and opposed to the spirit of  the
Constitution.”

 In the light of  the  facts  and  circumstances  of  the  case,  the  legal
contentions urged before us, the provisions of  the  Act  and  also  in  the
light of the legal principles already laid down by this  Court,  we  are  of
the opinion that Respondent No. 2- RDA could not have  formulated  KVTDS-for
Raipur without a Zoning Plan there in place.  Accordingly,  we  answer  this
point in favour of the appellants.

Answer to Point No. 4
Section 50 (5) of the Act of 1973, read with Section 50 (6) of  the  Act  of
1973, provides for constitution of a committee  which  shall  determine  the
various aspects of a Town Development Scheme such  as  its  viability,  cost
effect etc. Section 50(6) of the Act provides that a  committee  constituted
under  section  50(5)  of  the  Act  shall  consider  the   objections   and
suggestions and  give  hearing  to  any  person  desirous  of  being  heard.
Thereafter, the committee shall submit its report to the  Town  and  Country
Development Authority and, is required  to  submit  its  proposal  on  these
aspects:
  Define and demarcate areas allotted or reserved for public purpose;
Demarcate the reconstituted plots;
Evaluate value of original plots and reconstituted plots;
Determine whether  the  areas  marked  for  public  purpose  are  wholly  or
partially beneficial to the residents;
  Estimate the  compensation  or  contribution  from  beneficiaries  of  the
scheme;
Evaluate increment in  value  of  the  reconstituted  plot  for  calculating
incremental value;
Evaluate the reduction in value and assess compensation payable therefor;

The committee, in the case, in hand, has recorded in its report only on  the
first four aspects and has held the last three aspects as not applicable  to
the scheme without assigning any valid  reasons.   Therefore,  in  providing
this  report,  the  committee  has  violated  the  mandatory  provision   of
providing a complete report before  acquiring  land  from  landowners  which
often results in loss of livelihood for poor agriculturists. This aspect  of
loss of livelihood has been noted  by  this  Court  in  the  case  of  Bondu
Ramaswamy mentioned supra.

The learned single judge of the High Court  of  Chhattisgarh,  Bilaspur,  in
his judgment, has held that the aforesaid three aspects are  not  applicable
in the present case  for  the  reason  that  the  Respondent  No.  1-  State
government has decided not to seek payment of incremental  cost/contribution
cost  from  the  land-holder  on  account  of  development  of  area   while
prescribing the  size  of  the  reconstituted  plots  for  which  respective
landholders would be entitled.

The said view of the learned single Judge has  been  erroneously  upheld  by
the Division Bench of the High Court of Chhattisgarh,  Bilaspur.   The  said
view taken by both the learned single judge and Division Bench of  the  High
Court of Chhattisgarh, Bilaspur, is contrary to the provision of the Act  of
1973,  since  the  High  Court  has  not  noticed   in   arriving   at   the
aforementioned conclusion  that  the  committee  was  not  adhering  to  the
mandatory provisions with  regard  to  development  scheme.  Therefore,  the
scheme is vitiated in law for lack of compliance with the provisions of  the
Act of 1973.  The manner in which the computation of increment in the  value
of the reconstituted plot has been arrived at, is vague.


 The affidavit of RDA dated 23.11.2011 by way  of  its  reply  to  the  writ
petitions, has taken the following stand:
“However, finally the Committee came to the conclusion that  as  the  scheme
is to be made in participation with, the general public, therefore,  neither
any  charge  would  be  levied  on  the  public  under  any  head  nor   any
compensation would be payable to any of the members of public on account  of
reduction of his plot size or  value…  However,  while  finally  making  its
recommendation the committee on  internal  page  No.  114  and  115  of  the
Annexure categorically recommended that the provisions  of  sub-section  (v)
(vi) and (vii) of the  Section  50  (6)  would  not  be  applicable  on  the
scheme.”

From the above averments of the Respondent No. 2- RDA in  its  affidavit  by
way of reply, it is evident that it has unilaterally  decided  to  make  the
mandatory provisions of Section 50(6) (v) (vi)  and  (vii)  of  the  Act  of
1973, inapplicable to the scheme without providing any reason for the  same.
 It could not have stated so, as this aspect is no more  res  integra.  This
court has already taken the view that  the  provisions  of  Section  50  are
mandatory in nature in the case of Ahmedabad Municipal Corpn.  v.  Ahmedabad
Green Belt Khedut Mandal[17], which will be discussed at  appropriate  place
in this judgment.
Further, there is no board resolution for the  village  Dumartarai,  and  in
any event, Board resolution of Respondent No. 2-  RDA  does  not  amount  to
intention to declare under Section 50 (1)  to  develop  a  town  development
scheme in terms of the Government Order dated  18.11.1999.   The  Respondent
No. 2- RDA,  on  the  other  hand,  is  required  to  seek  permission  from
Respondent No. 1- State Government to publish the intention in the  official
gazette.  The RDA under the aforesaid provision was required to declare  its
intention to the public at large.
In the  instant  case,  the  Respondent  No.  1-  State  Government  granted
permission to Respondent No. 2- RDA to publish its intention  under  Section
50(2)of the  Act  of  1973,   on  25.1.2008  for  village  Dunda  alone.  It
published its intention under the aforesaid provision for  the  villages  of
Dunda as well as Tikrapara pursuant to the Board Resolution by  circulations
dated 12.5.2009 and  5.6.2009.   Afterwards  the  Respondent  No.  1-  State
Government granted permission dated 10.8.2009 for  increasing  the  area  of
the Scheme to 2300 acres.  The Board of the RDA  issued  another  resolution
by circulation dated  20.8.2009  for  inclusion  of  three  villages  namely
Boriakhurd, Dumartarai and  Devpuri.   The  Board  Resolution  is  only  for
publication of the scheme in the gazette and the same was for  KVTDS  Scheme
No. 5 and not KVTDS Scheme No.4. Pursuant  to  the  Board  Resolution  dated
20.08.2009, a declaration of intention was published for amended  scheme  on
4.9.2009. The board resolution is merely for publication of  the  scheme  in
the official gazette.  There is no provision under the  1973  Act  to  issue
declaration only in so far  as  amended  portion  is  concerned.  Thus,  the
inclusion of village Tikrapara is  not  in  accordance  with  the  procedure
prescribed under the Act and the entire  process  had  to  be  commenced  de
novo.

The learned senior counsel for the appellants have rightly pointed  out  the
procedure of passing a resolution, by placing reliance upon  the  provisions
of Section  289  of  the  Company’s  Act,  1956  which  specifically  allows
resolution by circulation in the following terms:
“289. Passing of resolutions by circulation. No resolution shall  be  deemed
to have been duly  passed  by  the  Board  or  by  a  committee  thereof  by
circulation, unless the resolution has been circulated  in  draft,  together
with the necessary papers, if any, to all  the  directors,  or  to  all  the
members of the committee, then in India (not being less in number  than  the
quorum fixed for a meeting of the Board or committee, as the case  may  be),
and to all other directors or members at their usual address in  India,  and
has been approved by such of the directors as are then in  India,  or  by  a
majority of such of them, as are entitled to vote on the Resolution.”

Thus, since there is no declaration of intent preceding publication  in  the
gazette, Board Resolutions which are not  declared  to  the  public  in  the
matter prescribed under  the  Act  of  1973,  and  same  do  not  amount  to
declaration.
The Act does not empower the Respondent No. 2- RDA  to  reconstitute  plots.
Even if any authority can be read into it, it has to be  limited  to  public
utilities.
The provision under Section 49 of  the  Act  of  1973  only  allows  a  Town
Development Scheme to make provision for reconstruction  of  plots  for  the
purpose  of  buildings,  roads,  drains,  sewage  lines  and  other  similar
amenities. It may be noted that the Maharashtra Regional and  Town  Planning
Act, 1966 and the Gujarat Town Planning  and  Urban  Development  Act,  1976
specifically provide for reconstituted plots and the Acts also provided  the
procedure to be  followed  for  the  same  under  the  respective  statutes.
Section 65 (1) of the Maharashtra Act and Section 45 (1) of the Gujarat  Act
are in pari material, which are reproduced hereunder:
“Section 65 (1) of the Maharashtra Act:  In the draft scheme, the  size  and
shape of every reconstituted plot shall be determined, so far as may be,  to
render it suitable for building purposes, and where a plot is already  built
upon, to ensure that the buildings  as  far  as  possible  comply  with  the
provisions of the scheme as regards open spaces.”

Section 45 (1) of Gujarat Act: In the draft scheme referred  to  in  Section
44, the size and shape of every plot shall be determined, so far as may  be,
to render it suitable for building purposes and where the  plot  is  already
built upon, to ensure that the building, as far as possible,  complies  with
the provisions of the scheme as regards open spaces”

Further Section 49 (viii) of the Act of 1973 empowers RDA to make  provision
for reconstitution, which reads as under:
 “49.  Town  Development  Scheme  –  A  town  development  scheme  may  make
provision for any of the following matters:
    ……….
(viii) Re-constitution of plots for the purpose of buildings, road,  drains,
sewage lines and other similar amenities....”


From a careful reading of the aforesaid conclusions, it is evident that  the
board conferred power upon the Respondent No. 2-RDA to  make  provision  for
reconstitution and not for reconstruction per se.  In any event, such  power
to make provision for reconstitution is limited to certain specified  public
purposes, which does not include general housing scheme.

There is conspicuous absence of any empowering mechanism under  the  Act  of
1973 for the above purpose and  no  authority  has  been  vested  under  the
provision of the  Act  applicable  to  Chhattisgarh,  to  adjust  rights  of
parties in the land. In view of the aforesaid provision,  mere  prescription
or the scope of the activity in the Town Development  Scheme  under  Section
49 of the Act will not ipso facto confer the power upon  Respondent  No.  2-
RDA to alter rights of landowners in their properties.  This unique  anomaly
under the Act may be contrasted with the Gujarat  Act  and  the  Maharashtra
Act wherein the office of the Town Planning Officer  has  been  specifically
created for the said purpose.
    Further, under Section 52 of the Gujarat Act the town  planning  officer
carries out the task of reconstitution of  lands.  The  provision  reads  as
under:
“52(1) In a preliminary scheme, the Town Planning Officer shall:-
After giving notice in the prescribed manner and in the prescribed  form  to
the persons affected by the scheme, define and demarcate the areas  allotted
to, or reserved  for,  any  public  purpose,  or  for  the  purpose  of  the
appropriate authority and the final plots;
After giving notice as aforesaid, determine in a case in which a final  plot
is to be allotted to persons in ownership  in  common,  the  share  of  such
persons;
Provide for the total or the partial transfer of any right  in  an  original
plot to a final plot or  provide  for  the  transfer  of  any  right  in  an
original plot in accordance with the provisions of Section 81;
Determine a period within which  works  provided  in  the  scheme  shall  be
completed by the appropriate authority.”

Also, Section 81 of the Gujarat Town  Planning  and  Urban  Development  Act
reads as under:
“Any right in an original plot which in the opinion  of  the  Town  Planning
Officer  is  capable  of  being  transferred  wholly  or  in  part,  without
prejudice to the making of a town planning scheme, to a final plot shall  be
transferred and any right in an original plot which in the  opinion  of  the
Town Planning Officer is not  capable  of  being  so  transferred  shall  be
extinguished:
Provided that an  agricultural  lease  shall  not  be  transferred  from  an
original plot to final plot without the consent of all the parties  to  such
lease.”

The Maharashtra Act of 1966 confer this right on an Arbitrator appointed  by
the State Government. Section 72 (3) (xiii) of the Act reads as under:
“72 (3)in accordance with prescribed procedure, every Arbitrator shall,-
………….
(xiii) provide for the total  or  partial  transfer  of  any  right  in  the
original plot to a final plot or provide for the execution of any  right  in
an original plot in accordance with  the  provisions  contained  in  section
101;”

In the light of the provisions above mentioned, it is clear that under  both
the town  planning  legislations  for  Gujarat  and  Maharashtra  States,  a
specific authority has  been  statutorily  authorized  to  alter  rights  in
property and to reconstitute plots, whereas no such authority  has  been  so
empowered under  the  Chhattisgarh  Town  Planning  Act,  1973.   Therefore,
without an official amendment to the Chhattisgarh Act and without  following
the  mandatory  procedure,  no  reconstitution  of  land  under   the   Town
Development Scheme can take place.

To further establish this point, reliance has been  placed  by  the  learned
senior counsel on behalf of the appellants  on  the  following  judgment  of
this Court in Ahmedabad Municipal Corpn.  v.  Ahmedabad  Green  Belt  Khedut
Mandal (supra), wherein it was held as under :
“27. The aforesaid provisions read conjointly give a clear picture that  the
scheme is just like the consolidation proceedings as the land, belonging  to
various persons, covered by the scheme first be put into  a  pool  and  then
the land be allocated for different purposes  and,  in  such  a  way,  after
having all deductions for the purpose of either by  way  of  acquisition  of
land under the Land Acquisition Act, 1894 (hereinafter referred to  as  “the
1894 Act”) or the land taken under the provisions  of  Section  40(3)(jj)(a)
of the 1976 Act, the loss and profit of individual tenure-holder  is  to  be
calculated. After assessing the market value on the date of  declaration  of
the intention to frame a scheme and the value of the property  after  making
all these deductions, adjustments, improvements, etc. and, therefore,  if  a
person has suffered any loss, his loss is to be made good from the funds  of
the scheme and if a person has gained an amount equivalent to net  gain,  is
to be recovered from him.

The case mentioned supra, further reads:
“40. As  we  have  explained  hereinabove  that  the  town  planning  scheme
provides for pooling the entire land covered by the  scheme  and  thereafter
reshuffling and reconstituting of plots, the market value  of  the  original
plots and final plots is to be assessed and the authority has  to  determine
as to whether a landowner has suffered some injury or has gained  from  such
process. Reconstitution of  plots  is  permissible  as  provided  under  the
scheme of the Act as is evident from cogent reading  of  Sections  45(2)(a),
(b), (c) and Section 52(1)(iii) in accordance with Section 81  of  the  1976
Act. By  reconstitution  of  the  plots,  if  anybody  suffers  injury,  the
statutory provisions provide for compensation under Section 67(b) read  with
Section 80 of the 1976 Act.  By  this  reconstitution  and  readjustment  of
plots, there is no vesting of land in the  local  authority  and  therefore,
the Act provides for payment of non-monetary compensation and  such  a  mode
has been approved by the Constitution  Bench  of  this  Court  in  Shantilal
Mangaldas, wherein this Court has held  that  when  the  scheme  comes  into
force all rights in the original plots are extinguished, and  simultaneously
therewith  ownership  springs  in  the  reconstituted  plots.  It  does  not
predicate  ownership  of  the  plots  in  the  local   authority,   and   no
process—actual   or   notional—of   transfer   is   contemplated   in   that
appropriation. Under clause (a) of Section 53,  vesting  of  land  in  local
authority takes place  only  on  commencement  of  scheme  into  force.  The
concept that lands vest in a local authority when the intention  to  make  a
scheme is notified, is against the plain intendment of the Act.  Even  steps
taken by the State do not involve application of  the  doctrine  of  eminent
domain.”


It is further contended by the learned  senior  counsel  on  behalf  of  the
appellants that apart from this, the allotment  of  reconstituted  plots  to
the original land owners is being done in an  arbitrary  and  discriminatory
manner and therefore the  same  is  wholly  unsustainable  in  law.  It  was
further contended that  the  Respondent  No.1-State  government  arbitrarily
excluded and included lands in the scheme  without  any  rational  basis  or
explanation for initial proposal of the  Town  Development  Scheme  on  land
measuring 416.93 acres and there is neither rational  explanation  or  basis
for subsequent addition of another 1900 acres of land included  pursuant  to
RDA’s  Resolution  dated  20.7.2009.   Barring  one  acre  land  of  Jalaram
Cooperative Housing Society, which was originally included  in  the  earlier
sanctioned area of 416.93 acres, the entire  land  of  the  appellants  have
been affected by the enhancement of acquisition of area to about 2300  acres
of land.   The villages of Tikrapara  and  Dumartarai  were  not  originally
included in the first  phase  of  development  in  the  Raipur  Master  Plan
(Revised) 2021.

 The location of the land of the appellants  which  is  also  shown  in  the
map/plan  annexed  to  the  Convenience  Compilation  is  produced  by   the
appellants, stating that-
The total 22 acres of land of which about 11 acres of land  is  of  Rajendra
Shankar Shukla and family of Village Dumartarai is an island,  separated  by
distance of 1.5 kms from the main site.   Thus, this piece of  11  acres  of
land is separate from the rest of land parcel being developed, and there  is
no reason for its inclusion except malice in law.
Land of  petitioner’s  Chinmay  Builders  and  Jalaram  Cooperative  Housing
Society of village Tikrapara is on the fringe of  their  existing  colonies,
and is therefore, sufficiently developed.
Land of petitioner’s Chhatri Family and petitioner Vijay Rajani  and  family
is on the main orad and is sufficiently developed on  account  of  proximity
to the main road.
Only a piece of land jointly  owned  by  Vijay  Rajani,  Rakesh  Amrani  and
Pradeep Prithwani admeasuring  about  1  acres  is  in  the  centre  of  the
township.

 It was further argued that draft Scheme was published on  20.11.2009  which
included vast tracts of agricultural land as well as abadi areas.   However,
the final scheme  published  on  16.07.2010  was  for  1600  acres.   It  is
submitted by the learned senior counsel on behalf  of  the  appellants  that
firstly the inclusion of 1900 acres  of  land  was  approved  on  10.08.2009
without following the  procedure  and  conducting  the  survey.   But  after
harassing the land owners, the Respondent No. 2- RDA excluded 700  acres  of
land, which were as under:
Land notified for agricultural use under the Master Plan (Revised) 2021
Land carrying construction over them, and
Land of private colonizers whose layout had been  approved  irrespective  of
whether construction has been carried out or not  in  the  permission  dated
25.01.2008, the State Government had itself directed that lands  with  trees
and construction will not  be  included,  and  therefore,  the  question  of
having such a huge area including constructed land did  not  arise  for  its
consideration.

As a consequence of the above said exclusion, portions of land belonging  to
the appellants in Civil Appeal arising out of SLP  (C)  No.  30942  of  2014
measuring about 11 acres was separated from the main proposed township by  a
distance of about 1.5 kms.  Between these two chunks of land, there  lies  a
densely populated area.  Apparently, there are no means to provide  services
to the separated land other  than  by  spending  disproportionate  costs  on
separate infrastructural facilities such as sub-station, sewerage  treatment
plant, water pumping station, separate  water  pipeline,  separate  sewerage
plant etc.  Therefore, it  is  contended  that  there  will  be  no  adverse
implication for the proposed township if lands belonging to  the  appellants
in the above mentioned appeal are excluded from the KVTDS.
 Further, the lands of other appellants namely,  Vijay  Rajani  and  family,
Jalaram Cooperative Housing Society, Bulamal Chhatri and Chinmay  Developers
are also on the fringe of the township and  as  such  there  is  no  adverse
implication for the proposed township if the said land of the appellants  is
excluded. In support of the aforesaid reasons, the  learned  senior  counsel
on behalf of the appellants has rightly placed reliance upon  the  following
decisions  of  this  Court  in  Bondu  Ramaswamy  v.  Bangalore  Development
Authority, (supra) wherein it was held as under:
“134. Therefore, if a development authority having acquired  a  large  tract
of  land  withdraws  or  deletes  huge  chunks,  the  development   by   the
development authority will resemble haphazard developments  by  unscrupulous
private developers rather than  being  a  planned  and  orderly  development
expected from a Development Authority. therefore  when  a  large  layout  is
being planned, the development authorities should exercise care and  caution
in deleting large number of pockets/chunks of land  in  the  middle  of  the
proposed layout. There is no point in proposing a planned  layout  but  then
deleting various portions of land in the middle merely on  the  ground  that
there is a small  structure  of  100  sq.ft  or  200  sq.ft.  which  may  be
authorized or unauthorized. Such deletions make a  mockery  of  development.
Further such deletions/exclusions encourage corruption and  favouritism  and
bring discontent among those who are not favourably treated.

135. The complaint by appellants is that in the proposed  Arkavathi  layout,
rich and powerful with "connections" and "money  power"  were  able  to  get
their lands,  (even  vacant  lands)  released,  by  showing  some  imaginary
structure or by putting up some unauthorised structure overnight. Though  we
do not propose to go into motives, the concurrent  finding  by  the  learned
Single Judge and Division Bench is  that  there  are  arbitrary  unexplained
deletions. While we may not comment on policy, it is obvious  that  deletion
from proposed acquisition should be  only  in  regard  to  areas  which  are
already well developed in a planned manner.

136. Sporadic small unauthorised  constructions  in  unauthorised  colonies/
layouts, are not to be deleted  as  the  very  purpose  of  acquisition  for
planned development is to avoid such unauthorised development.  If  hardship
is the  reason  for  such  deletion,  the  appropriate  course  is  to  give
preference to the land/plot owners in making allotments  and  help  them  to
resettle and not to continue the illegal and  haphazard  pockets  merely  on
the ground that some temporary structure or a dilapidated structure  existed
therein. A development authority should either provide  orderly  development
or should stay away  from  development.  It  cannot  act  like  unscrupulous
private developers//colonisers attempting development of small bits of  land
with only profit motive. When we refer to private  developers/colonisers  by
way  of  comparison,  our  intention  is  not  to  deprecate   all   private
developers/colonisers.    We    are    aware    that     several     private
developers/colonisers provide large, well planned  authorized  developments,
some of which are even better than developments by development  authorities.
What is discouraged and deprecated is  small  unauthorized  layouts  without
any basic amenities. Be that as it may.

137. What do we say about a  `development',  where  with  reference  to  the
total extent of a village, one-third is not notified at all, and  more  than
half is deleted from proposed acquisition of  the  remaining  two-third  and
only the remaining  about  20%  to  30%  area  is  acquired,  that  too  not
contiguously, but in different parcels and pockets. What can  be  done  with
such acquisition? Can it be used  for  orderly  development?  Can  it  avoid
haphazard and irregular growth? The power of deletion and withdrawal  unless
exercised with responsibility and fairly and  reasonably,  will  play  havoc
with orderly development, will add to haphazard  and  irregular  growth  and
create discontent among sections of society who were not fortunate  to  have
their lands deleted.”


The above decision holds true in the present case in the light of  the  fact
that vast amount of  tracts  have  been  deleted  subsequently  without  the
respondents assigning any reason for the same. As a consequence,  KVTDS  has
turned  into  disconnected  pockets  of  acquired  land  and  land   deleted
subsequently after acquisition.
 The functioning of the Committee under Section 50(5) of the Act of 1973  is
dissatisfactory and  required  the  process  to  be  followed  afresh.   The
committee constituted under the aforesaid Act  to  hear  objections  of  the
desirous  parties,  was  a  mere  eye  wash.  The  committee  rejected   the
objections submitted by the appellants without  providing  any  reasons  for
the same and not even providing  any  hearing  opportunities  to  put  forth
their objections before the said Committee. Therefore,  the  recommendations
of the Committee did  not  carry  any  weight.  This  action  of  the  State
Government is vitiated in law and therefore liable to be set aside.

It can be asserted from the evidence on record produced before us  that  the
Committee constituted under Section 50(5) of the Act,  heard  objections  of
the land owners  from  25.01.2010  to  2.6.2010.   At  the  same  time,  the
Respondent No.  2-  RDA  proposed  change  of  land  use  on  15.4.2010  and
20.5.2010 and even the lay-out  plan  was  also  prepared  and  approved  on
26.5.2010. This shows  that  the  hearing  and  consideration  of  the  land
owner’s objections was only a sham. The committee had pre-decided about  the
plan and was hearing objections of the  land  owners  only  as  a  formality
procedure. Clearly,  when  the  land  plan  was  prepared  and  approved  on
26.5.2010, the hearing of objections till 2.6.2010 was immaterial.


The committee took decision to exclude agricultural land which was  formally
taken on 22.6.2010 after acceptance of the report  of  the  Committee  dated
8.6.2010. But even before this, vide letter  dated  15.4.2010,  CEO  of  the
Respondent No. 2- RDA had made it clear  to  the  Respondent  No.  1-  State
Government  that agricultural land will be  excluded.
The  committee  constituted  under  Section  50(5)  was  headed  by  CEO  of
Respondent No. 2- RDA who himself proposed inclusion of 1900 acres  of  land
vide letter dated 20.7.2009. This affects the rights of the appellants.  For
this reason also, they did not receive fair hearing from the Committee.  The
recommendations of the committee were considered by the Board  of  Directors
of Respondent No. 2- RDA on 21.6.2010. While the committee was  hearing  the
objections, there was no freezing of land use  and  Respondent  No.  2-  RDA
kept on proposing change in land use. This affected the statutory rights  of
the land owners who were entitled to fair hearing  against  the  acquisition
of land.
In the case of Raghbir Singh Sehrawat  v.  State  of  Haryana[18],  held  as
under:
“40. Though it is neither possible nor desirable  to  make  a  list  of  the
grounds  on  which  the  landowner  can  persuade  the  Collector  to   make
recommendations against the  proposed  acquisition  of  land,  but  what  is
important is that the Collector should give a fair  opportunity  of  hearing
to the objector and objectively consider his plea  against  the  acquisition
of land. Only thereafter, he should make recommendations supported by  brief
reasons as to why the particular piece of  land  should  or  should  not  be
acquired and whether or not the plea put  forward  by  the  objector  merits
acceptance. In other words, the recommendations made by the  Collector  must
reflect objective application  of  mind  to  the  objections  filed  by  the
landowners and other interested persons.

Further, in the case of Indore Development Authority v. Madan Lal[19], it
was held as under:
“10. We do not  think  that  the  Development  Authority  was  justified  in
following a short cut in this case. The procedure followed under  the  Trust
Act could not be  sufficient  to  dispense  with  all  the  requirements  of
Section 50 of the Adhiniyam. As earlier  noticed  that  Section  50  of  the
Adhiniyam provides procedure for preparation  and  approval  of  scheme  for
development. After preparing a draft scheme, the Development Authority  must
invite objections and  suggestions  from  the  public.  There  must  be  due
consideration of the objections and suggestions received in  [pic]the  light
of the Master  Plan  of  Indore.  Indeed,  the  public  must  also  have  an
opportunity to examine the scheme and file objections in the  light  of  the
Master Plan if the Development Authority wants to adopt  the  scheme.  Since
the scheme in question was not an approved scheme under the Trust  Act,  the
Development  Authority  could  not  have  dispensed   with   the   procedure
prescribed under Section 50 of the Adhiniyam.”

Therefore, in the light of the facts and circumstances of the case  and  the
legal principles laid down by  this  Court,  we  are  of  the  opinion  that
reconstitution of plot  for  the  purpose  of  town  development  scheme  is
permissible for public purpose only and that  too  by  following  the  legal
procedure of publication by the authority in gazette  about  its  intent  to
acquire land. In the absence of the same, and  also  when  the  purpose  for
reconstitution of land is not for public  purpose,  such  reconstitution  of
land is impermissible under the Act. Therefore,  we  answer  this  point  in
favour of the  appellants  that  the  respondent  No.2-RDA  could  not  have
reconstituted plot for any other purpose other than public purpose.

Answer to Point No. 5
It has  been  argued  by  the  learned  senior  counsel  on  behalf  of  the
appellants that taking away land located in prime location and  giving  away
land anywhere as per the discretion of Respondent No. 2- RDA, that  too,  to
the extent of mere 35%  of  the  area,  is  constitutionally  impermissible.
Against this contention  raised  by  the  learned  senior  counsel  for  the
appellants, the learned senior counsel for the the Respondent No.  1-  State
Government as well as the  High  Court  of  Chhattisgarh,  relied  upon  the
decision of this Court  in  the  case  of  State  of  Gujarat  v.  Shantilal
Mangaldas and Ors.[20], to hold that taking away land and  giving  back  35%
developed land in return, is in accordance with the  Constitution.  On  this
aspect, we are inclined to rely upon the  decision  of  this  court  in  His
Holiness Kesavananda Bharathi v. State of Kerala[21]  which  laid  down  the
subsequent development on the jurisprudence of  compensation  and  overruled
the decision of Shantilal in the  process.  It  was  held  in  the  case  of
Kesavananda Bharati v. State of Kerala as under:

“584.  The  later  decisions  had  continued  to  uphold  the   concept   of
“compensation” i.e. just equivalent of the value of  the  property  acquired
in spite of the amendments made in 1955. In State of  Gujarat  v.  Shantilal
Mangaldas and Others  the  decision  in  Metal  Corporation  of  India,  was
overruled which itself was virtually overruled by R.C. Cooper  v.  Union  of
India. According  to  the  Advocate-General  of  Maharashtra,  if  Shantilal
Mangaldas case, had not been overruled by R.C. Cooper  v.  Union  of  India,
there would have been no necessity of amending Article 31(2).
……………….

1744. In the Bank Nationalisation  case,  the  majority  decision  virtually
overruled the decision in Gujarat v. Shantilal.  The  majority  was  of  the
view  that  even  after  the  Fourth  Amendment  ‘compensation’  meant  “the
equivalent  in  terms  of  money  of  the  property  compulsorily  acquired”
according to “relevant principles” which principles must be  appropriate  to
the determination or compensation  for  the  particular  class  of  property
sought to be acquired.”

Since compensation for  acquisition  of  land  need  to  be  reasonable  and
adequate  in  the  interest  of  justice,  we  rely  upon  the  decision  of
Kesavananda Bharathi case (supra) to hold that  returning  35%  of  land  in
lieu of acquisition is constitutionally impermissible. This is also  because
the ‘development’ which  occurs  due  to  the  implementation  of  the  Town
Development Scheme accrues the benefit to everyone. In  the  same  way,  the
appellants whose land has been acquired and proposed to be developed,  would
have gained from the development, if at all, as a member  of  the  community
gaining  from  the  town  development  scheme  and  not  in  his  individual
capacity. When the compensation for  land  acquisition  is  determined,  the
price  of  the  land  on  the  date  of  the  declaration  of  intention  of
acquisition is taken  into  consideration  and  not  subsequent  development
after acquisition since the development is not connected to acquisition.  In
the same manner, if the land is reconstituted in plots for  distribution  to
the Economically Weaker Sections of the community or other public  purposes,
the same cannot be done by arbitrarily depriving the land  owners  of  their
Constitutional rights guaranteed under Article 300 A of the Constitution  of
India. They are entitled for the compensation  from  the  State  Government.
The State Government on the other hand, cannot  involuntarily  acquire  land
and impose developmental charges in the same breath.
We come to this conclusion  further  on  the  ground  that  35%  figure  was
arrived at by Respondent No. 2- RDA while allocating reconstituted  land  to
the appellants, without any valid form of  calculation  arrived  at  by  the
respondents. This action of the respondents is arbitrary  also  because  the
percentage of reconstituted land to be returned  to  the  land  owners  vary
from 35% to 58% for large plot holders and small plot  holders.  Also,  from
the letter dated 20.7.2009, it is evident that Respondent  No.  2-  RDA  had
already taken a decision that not more than 40% of land will be returned  to
the  land  owners.  This  decision  is  arrived  at  without   taking   into
consideration the value of each portion  of  land  on  the  basis  of  their
geographical locations.

It is further submitted by the learned  senior  counsel  on  behalf  of  the
appellants that taking land under “Development Contribution” to  the  extent
of 65%  is  not  contemplated  under  Section  50(6)  of  the  Act.  Section
50(6)(vi) of the Act of 1973 reads as under:
“……(vi)evaluate the increment in the value of each  reconstituted  plot  and
assess the development contribution leviable on each plot holder:
Provided that the contribution shall not exceed half the  accrued  increment
in value.”

Even under Section 40(3)(jj)(a) of the Gujarat Act, the maximum  permissible
contribution of land by land owner cannot  exceed  50%.  Therefore,  in  the
absence of any reasonable procedure arrived at by  the  Respondents,  taking
65% of the area of the plot as development  contribution  is  wholly  unfair
and arbitrary, and is also impermissible as per Section 50  (6)(vi)  of  the
1973 Act. We hold that the respondents were not justified in returning  only
35%  of  reconstituted  plots  and  retaining  65%  for  different  purposes
mentioned by them.

Answer to Point No. 6
The learned senior counsel on  behalf  of  the  appellants  urged  that  the
Respondent No. 2- RDA’s  application  for  Environmental  Impact  Assessment
clearance dated 17.6.2010, was prior to the date of  approval  of  KVTDS  by
the Board of RDA, the same being accorded  on  22.6.2010  and  published  on
16.7.2010. Therefore, the  application  of  the  Respondent  No.2-  RDA  was
initially for EIA clearance for 2300 acres, whereas  the  final  scheme  was
only for 1600 acres of land.  As  per  the  condition  (v)  of  the  General
Condition of the Environmental Clearance (EC) dated 25.1.2011,  if  the  RDA
has changed the scope of the project, it has to take a fresh EC. The EC  was
sought for considerably more than the area for which the  final  scheme  was
notified i.e. 1600 acres.

As per the MoEF, EIA  notification  dated  14.9.2006  was  issued  by  which
Townships and Area Development Projects are put in  Category–B1.  The  KVTDS
Scheme  No.-04  falls  in  this  category.  As  per  general  conditions  of
14.9.2006 notification, projects of “B1”  category  will  be  considered  as
projects of category “A” if the same falls  in  critically  polluted  areas.
Then the Central Government is the competent authority  to  grant  clearance
to such projects.


Further, MoEF, issued a circular dated 25.8.2009, which has noted  that  the
Central Pollution Control Board (CPCB) had  identified  critically  polluted
areas. The Expert Appraisal Committee (EAC) is appraising proposal of EC  to
the areas. Thereafter the concerned State Pollution Control Board will  send
its  representative  with  its  comments.  The  circular  pertained  to  the
procedure of grant of EC to  development  projects  in  Critically  Polluted
Areas.


The MoEF issued O.M. dated 13.1.2010 listing out ‘critically  polluted’  and
‘severely polluted’ areas. Raipur falls in severely polluted  area  (S.  No.
63 with CEPI-65.45). Para 4.1.1 and 4.1.2 of the said O.M. puts  a  complete
prohibition on grant of  environmental  clearance  to  projects  falling  in
‘critically polluted areas’  for  8  months  and  the  said  moratorium  was
further extended by letter dated  31.10.2010.  Para  4.2  of  the  said  O.M
provides  that  the  procedure  for  grant  of  environmental  clearance  to
development projects in ‘severely polluted’ areas will be  as  per  circular
dated 25.8.2009, i.e. for critically polluted areas. Therefore,  the  effect
of O.M. referred to supra is that that the EC  to  the  said  projects  will
have to be given by the Central Government.


The Respondent No. 2-RDA submitted its  application  on  17.6.2010  for  EIA
approval  for  2300  acres  of  township.  On  25.1.2011,  EC  clearance/EIA
approval was granted  by  the  State  Level  Environment  Impact  Assessment
Authority (SEIAA) to Respondent No.2–RDA which is not the authority to  give
such clearance as per O.M dated 13.1.2010 since the same has to  be  granted
by the MoEF.


The MoEF in its affidavit filed before the High Court in Writ  Petition  (c)
No.6040 of 2011, has stated that  general  conditions  of  EIA  Notification
dated 14.9.2006 were made inapplicable on the projects  in  item  8(b)  vide
MoEF O.M. dated 24.5.2011. The  High  Court  has  relied  on  the  aforesaid
affidavit and dismissed the contention of the appellants with regard to  the
EC issue, thereby it has erred in not  appreciating  the  said  O.M.  issued
after SEIAA  had  given  EC  to  KVTDS-04.  As  on  25.1.2011,  the  general
conditions of EIA notification dated 14.9.2006 were applicable  to  category
‘B’ projects and Central Government was the competent authority to grant  EC
to KVTDS-Scheme No. 04.


Even assuming that the EIA clearance granted by the SEIAA to RDA  is  valid,
the RDA has deviated mandatory conditions as prescribed under the  EC  dated
25.1.2011. In the EC certificate, there is a specific  condition  that  ‘the
project proponent shall not deviate from  the  land  use  proposals  in  the
scheme area as provided under the  said  master  plan’.  On  31.1.2011,  the
respondent no.1- The State Government issued circular with regard to  change
in land use from agricultural to residential purposes. The land use  in  the
concerned khasras was already notified as  ‘residential’  under  the  Master
Plan. The notification dated 4.3.2011 was published in the official  gazette
of the State  government with regard to change of the land  use  of  khasras
from Agricultural to Residential purposes in the villages Dunda, Devpur  and
Dumartarai  and  also  from  Educational  to  Residential  area  in  village
Tikrapara.


As per condition (ii) in the aforesaid notification, 185  hectares  of  land
has to be maintained. The land use approved by the Board on  22.6.2010  only
provides for 129.42 hectares of land for green zone.


On 25.1.2011, condition (v) of the General Conditions,  stipulated  that  if
the scope of a project is changed, fresh permission should  be  sought  from
the SEIAA. Scope of KVTDS-04 was changed as hereunder:
On 17.6.2010, i.e. the date of application for  EIA,  RDA  sought  clearance
for 2300 acres/847.84 hectares but  finally  the  scheme  was  published  on
16.7.2010 for 1600 acres.
4.3.2011: change in land use notified on  31.1.2011  published  in  official
gazette
17.8.2011: In RDA Board Meeting, layout plan was amended  in  view  of  G.O.
dated 25.2.2011.

This resulted in change in scope  of  the  project.  Thus  in  view  of  the
specific condition (ii) of  the  Environmental  Clearance  dated  25.1.2011,
fresh EC should have been sought and obtained by the RDA but  the  same  has
not been obtained by it.


Section 50(8) of the Act cannot be made retrospectively applicable.  In  the
absence of vesting of land with the RDA,  layout  is  not  complete  and  no
allotment can be done. The aforesaid provision of the Act  was  inserted  by
Ordinance dated 16.6.2010. Therefore, the same  cannot  be  made  applicable
retrospectively to the Scheme as it was sanctioned by the  State  Government
on 25.1.2008 and 10.8.2009.

 The Scheme was finalised on 26.5.2010, by which  date,  no  land  had  been
acquired by Respondent No. 2- RDA nor any piece of land vested in it.  Plots
are being earmarked only on paper and such ‘on  paper’  allotment  of  plots
have been done by Respondent No. 2- RDA. Therefore, we are  of  the  opinion
that due to the change in the scope of the project, Respondent  No.  2-  RDA
was required to seek sanction for the project from the  Central  Government.
The same has not been done. Therefore, the KVTDS scheme has also  failed  to
obtain the  environmental  clearance  requirement  which  is  the  mandatory
requirement in law for initiating any project by  the  RDA.  A  faulty  town
development scheme prepared through  incompetent  authorities  with  blatant
violation of legal and environmental procedure  cannot  be  the  reason  for
deprivation of constitutional rights of the appellants.


Since we answered all the points framed in these  cases  in  favour  of  the
appellants, we allow these appeals by setting aside the  impugned  judgments
and orders passed by the High Court of  Chhattisgarh  at  Bilaspur  in  writ
appeals and writ petitions of the appellants and further  allow  the  prayer
of the appellants by quashing the acquisition of their land of the  villages
which were included subsequently in  the  KVTDS  in  their  respective  writ
petitions.   The appeals are allowed. No costs.


                                                        ………………………………………………J.
                                   [V.GOPALA GOWDA]



                                                        ………………………………………………J.
                                   [C. NAGAPPAN]

New Delhi,                                           July 29, 2015
-----------------------
[1]    Report of the Select Committee of House of Commons. 1832 Vol. III  p.
331  as  quoted  in  T.N.  Srivastava,  Local  ‘Self’  Governance  and   the
Constitution, EPW July 27, 2002 at p. 3190- 3191
[2]    Constituent Assembly Debates, Vol. VII at p.  352  on  November  9th,
1949
[3]    2012 (4) Bom CR 40 at para 22- 23
[4]    (2007) 8 SCC 705
[5]    [(1892) A.C. 473, 480 (Privy Council)
[6]    (1976) 2 SCC 152
[7]    (2013) 6 SCC 278
[8]    (2010) 9 SCC 157
[9]    (2011) 12 SCC 695
[10]   (1979) 4 SCC 176
[11]   (1978)  1 SCC 405
[12]   (1969) 2 SCC 262
[13]   AIR 1980 SC 319
[14]   AIR 1984 SC 1572
[15]   (2010) 7 SCC 129
[16]   (1991) 4 SCC 54
[17]   (2014) 7 SCC 357
[18]   (2012) 1 SCC 792
[19]   (1990) 2 SCC 334
[20]   AIR 1969 SC 634
[21]   (1973) 4 SCC 225

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|REPORTABLE     |





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