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Wednesday, November 30, 2016

We find the principles laid down in sections 305, 306 and 387 are quite reasonable. Reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to section 305(1) and compensation for inclusion of land in public street is payable under section 306(3) of the Act. We do not find any ground so as to read down the provisions. We refrain to comment upon the submission with respect to the granting additional FAR is not acceptable to some appellants, as it is not the stage of dealing with compensation how the total indemnification is to be made, whether FAR is acceptable to the appellants or not, cannot be decided at this stage. It need not be decided at this stage whether they have a right to leave the FAR and claim monetary compensation alone which is to be adjudged by the concerned authorities within the pale of the provisions contained in sections 305, 306 read with section 387 of the Act of 1956. How the compensation is to be worked out at the appropriate stage, is the outcome of the authorities concerned and the job of the arbitrator/District Court, as the case may be. The appellants are at liberty to raise the question with respect to the adequacy of compensation and how the provision of section 387 has to be interpreted and what would be the just compensation at the appropriate stage of determination of compensation.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 11307 OF 2016
                  [Arising out of SLP [C] No.30998 of 2010]


Ravindra  Ramchandra Waghmare                      …. Appellant

Vs.

Indore Municipal Corporation & Ors.                      ….Respondents

WITH

Civil Appeal No. 11308 of 2016 (Arising out of SLP [C] No. 31541/2011),
Civil Appeal Nos.11309-11316 of 2016 (Arising  out  of  SLP  [C]  Nos.  469-
476/2016),
Civil Appeal Nos. 11317-11318 of 2016 (Arising out  of  SLP  [C]  Nos.  416-
417/2016),
Civil  Appeal  Nos.11319-11324/2016(Arising  out  of  SLP  [C]  Nos.  14502-
14507/2016),
Civil Appeal No.11325 of 2016 (Arising out of SLP [C] No. 15380/2016),
Civil Appeal No. 11326 of 2016 (Arising out of SLP [C] No. 14531/2016),
Civil Appeal  Nos.11327-330  of  2016(Arising  out  of  SLP  [C]  Nos.14493-
14496/2016),
Civil Appeal No. 11331 of 2016 (Arising out of SLP [C] No. 15421/2016),
Civil Appeal No. 11332 of 2016 (Arising out of SLP [C] No. 16750/2016),
Civil Appeal No. 11333 of 2016 (Arising out of SLP [C] No. 16827/2016),
Civil Appeal No. 11334 of 2016 (Arising out of SLP [C] No. 19012/2016),
Civil Appeal No. 11335 of 2016 (Arising out of SLP [C] No. 16891/2016), and
Civil Appeal No. 11336 of 2016 (Arising out of SLP [C] No. 16742/2016).


                               J U D G M E N T

ARUN MISHRA, J.

1.    Leave granted.
2.    The appeals arise out of judgment and order dated 9.5.2016  passed  by
the High Court of Madhya Pradesh at Jabalpur  and  as  against  order  dated
30.9.2010 passed by the Division Bench of the High Court of  Madhya  Pradesh
at Indore thereby affirming the judgment and order  passed  by  the  learned
Single Judge.
3.    The matter arises out  of  Bhopal  Municipal  Corporation  and  Indore
Municipal Corporation. The action taken by  the  Municipal  Corporations  of
Bhopal and Indore under section 305 of Madhya Pradesh Municipal  Corporation
Act,  1956  (hereinafter  referred  to  as  ‘the  Act  of  1956’)  has  been
questioned. The Single Bench at Jabalpur had allowed  the  writ  application
and held that the land be acquired under the provisions of the Act of  2013.
Aggrieved thereby, writ appeals were filed by Bhopal  Municipal  Corporation
which have been allowed by the impugned judgment and  order  dated  9.5.2016
by a Division Bench of the High Court of M.P.
4.    With respect to Bhopal the facts are being narrated  from  the  matter
in-between A.K. Pali & Ors. v. State of M.P. &  Ors.  The  State  Government
through Municipal Corporation, Bhopal as a nodal agency decided  to  develop
Bus Rapid Transit  System  Corridor  (for  short  ‘BRTS  corridor’)  on  the
stretch of around 8 kms. As per Bhopal  Development  Plan,  2005  which  was
notified in the year 1995, the proposed  width  of  the  road  is  66  mtrs.
Initially, the writ petitions were filed by the appellants before  a  Single
Bench in the year 2014 questioning the action  initiated  by  the  Municipal
Corporation on the ground that such an action was  impermissible  under  the
provisions of section 305 of the Act of 1956. At that time the width of  the
road was 54  mtrs.  The  appellants’  main  submission  was  that  they  had
obtained the permission from  the  Municipal  Corporation  so  as  to  raise
construction. For acquisition of the land, the provisions contained  in  the
Right  to  Fair  Compensation  and   Transparency   in   Land   Acquisition,
Rehabilitation and Resettlement Act, 2013 (hereinafter referred to  as  ‘the
Act of 2013’) ought to have been resorted to.
5.    Under  the  Jawaharlal  Nehru  National  Urban  Renewal  Mission,  the
Central Government had  sanctioned  the  scheme  called  BRTS  corridor  for
improvement  of  public  transport  system  at  Bhopal  in  order  to  avoid
hazardous traffic.  The  Central  Sanctioning  &  Monitoring  Committee  was
constituted by the Ministry of Urban Development which had sanctioned a  sum
of Rs.357.20 crores for implementation of said scheme.  After  due  sanction
by  the  Committee,  NHAI  entered  into   an   agreement   with   Municipal
Corporation, Bhopal on 22.9.2009 and handed over particular part of land  to
it for the purpose of BRTS corridor.  For  betterment  of  public  transport
system  225  low  floor  buses  were  also  sanctioned  by  Sanctioning  and
Monitoring Committee of the Central Government.  For  BRTS  corridor  survey
was undertaken by the Expert Committee  of  the  Central  Government  namely
Urban Mass Transit Council of Bhopal City. Plan was  duly  approved  by  the
State Government and the routes were notified  as  per  Plan  by  the  State
Transport Authority. Presently only 1.25 lakh  passengers  are  getting  the
services of low floor buses. It is not in dispute  that  most  of  the  BRTS
corridor has been constructed and the route  from  Misrod  to  Bairagarh  is
under operation. Buses are plying continuously.  The  appellants  are  land-
holders in-between Misroad to Ampree Chouraha. The Master Plan was  prepared
under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam,  1973  (Town
& Country Planning Act) hereinafter referred to as ‘the Act  of  1973’.  The
Development Plan/Master Plan was prepared as per the provisions  of  section
18 after inviting  objections,  suggestions.  None  of  the  appellants  had
raised objection when the development plan was prepared.  It  was  finalized
and published as per provisions contained in section 19(4).
6.    The development permission was  granted  by  the  competent  authority
under the Act of 1973 as per the provisions contained  in  section  13(1)(b)
and Rule 21(1) framed under the Bhopal Vikas Adhiniyam, 1984 since  repealed
with effect from April, 2012. The appellants have  raised  the  construction
of their building as per the conditions mentioned in the map  sanctioned  by
the authority under the Act of 1973. They were required  to  keep  the  land
for widening of road in  question.  Accordingly,  the  landowners  submitted
their lay-out leaving requisite land from the  centre  of   the   road   for
widening   of  road.  On  that  basis  Municipal  Corporation  had   granted
permission to appellants. They were aware  of  the  proposed  width  of  the
road.
7.    The appellants at the stage of  the  final  hearing  of  writ  appeals
before the High Court filed fresh writ petition/amended  writ  petition  for
questioning the vires of the provisions contained in sections  305  and  306
of the Act of 1956. It was averred that there is no provision under the  Act
of 1973 of vesting of land on publication of Master  Plan/Development  Plan,
particularly the land belonging to private landowners. The  acquisition  has
to be made under the provisions contained in sections 8, 11 and  16  of  the
Act  of  2013.  State  Government  has  no  power  to  reduce   quantum   of
compensation prescribed under the Act of 2013. Sections 305 and 306  of  the
Act of 1956 are unconstitutional as they provide automatic vesting  of  land
without payment of  reasonable  compensation.  The  Act  of  1956  fails  to
provide appropriate compensation equivalent to that offered  under  the  Act
of 2013. The provisions contained in sections 305 and 306 are  violative  of
Article 14. The provisions contained in sections 305  and  306  have  become
redundant due to the provisions  contained  in  the  Act  of  2013.  It  was
submitted that the Corporation is required to acquire the land for  widening
the streets as per the provisions contained in sections 78  and  79  of  the
Act of 1956. Thus recourse to  section  305  of  the  Act  of  1956  is  not
permissible for divesting the owner of his right to ownership and  that  too
without  payment  of  compensation.  Adoption  of  onerous  and   oppressive
provision would be  illegal  and  arbitrary.   The  provision  contained  in
section 305 is more onerous and harsh as  compared  to  the  procedure  laid
down under section 56 of the Act of 1973. It  was  also  submitted  that  in
some of nearby areas the land is being acquired for link road under the  Act
of 2013 whereas appellants  are  being  discriminated  with.  Two  different
processes of acquisition under different Acts cannot be resorted to. It  was
also submitted that the provision contained in section 306 fails to  provide
rational,  reasonable  principle  for  determination  of  compensation   for
deprivation of property of landowner. Right to property is recognized  under
section 300A and delayed payment of compensation  leads  to  deprivation  of
property without reasonable process. Section 306 does not provide as to  the
time period within which compensation to  be  paid.  Consequently,  same  is
violative of   Articles  14,  19  and  300A  of  the  Constitution.  It  was
submitted that the provisions contained in  section  306  be  read  down  by
incorporating the provisions of the Act of 2013 in the light  of  principles
enshrined therein while correlating it with the provisions  of  section  387
of the Act of 1956. It was also submitted that within  the  ken  of  section
305 of the Act of 1956, Corporation has no right to  enter  and  remove  any
part of the structure falling within building line.
8.    In the cases arising from the Indore Bench vires of the provisions  of
sections 305 and 306 of Act of 1956 have  not  been  questioned.  In  Indore
also BRTS corridor is being undertaken at the cost of  Rs.868  crores.  Same
is being executed through the nodal agency of Indore Development  Authority.
State Government has granted approval to the project as a  Town  Development
Scheme under section 49(ix) of the Act  of  1973.  As  per  appellants  BRTS
corridor is being undertaken on a portion of Agra Bombay Road (AB Road).  It
was described as Major City Road in the development  plan,  1991  which  was
prepared and notified in the year 1975. At the relevant  time  AB  Road/MR-I
was proposed to be as 40-50 mtrs. At the same time it was provided that  for
future the width of said  road  would  be  60  to  75  meters.   It  was  in
conformity with the Master Plan of 1991; in the  Master  Plan  of  2021  the
width of the road is kept 60 meters. On 26.5.2007 a notice  was  issued  for
demolition of certain structure for the purpose  of  widening  of  road.  On
1.1.2008 Master Plan, 2021 had been notified  in  which  AB  Road  has  been
proposed as 60 to 75 meters. It was also pointed out  that  now  a  separate
bye-pass road has been taken out for AB Road.  Thus  the  road  in  question
forms part of the Major City Road that is MR-I, width of which has to be  60
meters. Most of the corridor has been constructed except in some portion  of
the appellants. Development plan is binding upon the authorities as well  as
the Corporation. As such, action has been rightly taken  under  section  305
of  the  Act  of  1956.  Sections  305  and  306  provide   for   reasonable
compensation and when it is  not  accepted,  recourse  can  be  had  to  the
provisions contained in section 387 of the Act of 1956  which  provides  for
determination of compensation by  the  arbitrators/court  on  the  basis  of
procedure laid down in the Land Acquisition Act, 1894.  As  soon  as  Master
Plan/Development Plan is finalized and published there is  restriction  upon
the owner to raise any construction in contravention of  the  plan  and  the
Corporation is given the right to remove  any  structure  which  is  falling
within the line of the existing  public  street  or  to  be  constructed  in
future. The provisions subserve the public  interest  and  widening  of  the
road is necessary for development of rapid transport system.  The  procedure
prescribed with respect to public street is contained in section  305.  Same
cannot be said to be illegal  or  arbitrary  in  any  manner  as  reasonable
compensation is offered which may include FAR in appropriate cases  and  the
provisions of the Land Acquisition  Act  are  also  applicable  as  provided
under section 387. Thus the provisions cannot be said  to  be  violative  of
Articles 14, 19, 21 and 300A of the Constitution of India. The action  taken
falls within the purview of section 305 of the Act of 1956.
9.    On behalf of  the  appellants  it  was  submitted  by  learned  senior
counsel that the provisions contained in section 305 of the Act of 1956  are
repugnant to the provisions contained in the Act of  2013.  Compensation  is
not offered before taking possession. The provisions  contained  in  section
305 of the Act of 1956  is  violative  of  the  protection  conferred  under
Articles 14, 19, 21 and 300A  of  the  Constitution  and  repugnant  to  the
provisions contained in  section  56  of  the  Act  of  1973.  It  was  also
contended that on proper  interpretation  of  the  provisions  contained  in
section 305, the Corporation has no right to remove  greater portion of  the
building or material portion of the  projecting  part  unless  it  has  been
taken down or burned down or has  fallen  down.  On  notice,  it  is  to  be
voluntarily removed by the owner thereof. The Corporation  can  only  remove
the projecting part which is external to  the  main  building  as  verandah,
step or some  other  structure.  The  acquisition  proceedings  have  to  be
necessarily resorted to under the provisions contained in  sections  78  and
79 of the Act of 1956. Corporation has no right to enter forcibly to  remove
the structure. It was also submitted that  without  preparation  of  a  town
development scheme as envisaged under section 49 read  with  section  50  of
the Act of  1973,  it  is  not  permissible  to  carry  out  the  provisions
contained in the development plan.
10.   On the other hand it was submitted by learned senior counsel  for  the
respondents that the action taken is  in  accordance  with  the  development
plan which is binding. The provisions under section 305 cannot  be  said  to
be ultra vires. The same provide  for  reasonable  compensation.  On  proper
interpretation of section  305  of  the  Act  of  1956  the  action  of  the
Corporation is within its ken.  It is not necessary  to  acquire  the  land.
Corporation has power to remove structure which projects beyond the  regular
line of public street. The maxims Generalia  specialibus  non  derogant  and
Generalibus specialia derogant have been pressed  into  service  to  contend
that if a special provision is made on a  certain  matter,  that  matter  is
excluded from the general provision. The scheme of the Act of 1973 has  been
pointed out so as to explain the procedure how  regional  plan,  development
plan and town development schemes are prepared. It is not necessary to  have
recourse to section 56 of the Act of 1973 or sections 78 and 79 of  the  Act
of 1956 for acquisition of land.
11.   Before dilating upon the rival contentions it  is  necessary  to  take
note of the various statutory provisions.
In re : Provisions of the Act of 1956 :
12.   Section 5(45) of the Act of 1956  defines  ‘private  street’;  section
5(49)  defines  ‘public  street’;  section  5(55)  defines   ‘street’.   The
provisions contained in sections 5(45), 5(49) and 5(55) are extracted  below
:
“Section 5(45) “private street”  means  a  street  which  is  not  a  public
street;

Section 5(49) “public street” means any street –
Over which the public have a right of way; or
Which have been heretofore leveled, paved, metalled,  asphalted,  channeled,
sewered or repaired out of municipal or other public funds; or
Which under the provisions of this Act becomes a public street;

And includes –

The roadway over any public bridge or causeway;
The footway attached to any such street;
Public bridge or causeway, and the  drains  attached  to  any  such  street,
public bridge or causeway;

Section 5(55) “street”  means any road, foot-way,  square,  court  alley  or
passage, accessible, whether  permanently  or  temporarily  to  the  public,
whether a thoroughfare or not;

and shall include  every  vacant  space,  notwithstanding  that  it  may  be
private property and partly or wholly obstructed by any  gate,  post   chain
or other barrier, if houses, shops or other buildings about thereon, and  if
it is used by any persons as means of access to or from any public place  or
thoroughfare, whether such persons be occupiers of such buildings or not;

but shall not include any part of such space which the occupier of any  such
building has a right at all hours to prevent all other  persons  from  using
as aforesaid;

and shall include also the drains  on  either  side  and  the  land  whether
covered or not by any pavement, verandah or other erection,  which  lies  on
either side of the roadway up to the boundaries of  the  adjacent  property,
whether  that  property  be  private  property  or  property   reserved   by
Government or by the Corporation for any purpose other than a street;”


Section 330 of the Act of 1956 deals with conversion of streets into  public
streets. Section 330(1) requires the Commissioner to declare the same to  be
public streets in exigencies specified therein. Section 330(2) empowers  the
Commissioner to declare street  or  part  of  a  street  not  maintained  by
Corporation to declare the same to be a public street. The decision  has  to
be taken after inviting objections and appeal can be preferred against  such
a  decision  as  provided  in  section  330(3).  Section  330  is  extracted
hereunder :

“330.  Power to declare streets, when metalled, etc. public  streets  –  (1)
When any street has been levelled, metalled,  tarred  or  asphalted,  paved,
made good, lighted, drained, chanelled and flagged to  the  satisfaction  of
the Commissioner, he shall, if so required by the  persons  liable  for  the
greater part of the expenditure on such street by notice put up in any  part
of such street, declare the same to be a public  street.   The  said  street
shall thereupon become a public street.

(2) The Commissioner may, at any time by a notice exhibited  in  any  street
or part of a street not maintained by the Corporation,  give  intimation  of
his intention to declare the same a public street, and,  unless  within  one
month next after such notice is first exhibited the owner  or  the  majority
of owners of such street or such part of street, lodges or lodge  objections
thereto with the Corporation, the Commissioner may by a notice exhibited  in
such street or part, declare the same to be a public street  vested  in  the
Corporation.

(3)  Any person aggrieved by a  notice  under  sub-section  (2)  may  appeal
within thirty days from the date  of  notice  is  first  exhibited,  to  the
District Court who shall give a reasonable opportunity  of  being  heard  to
the appellant and the Corporation.

(4)  The provisions of Parts II and III of the Indian Limitation  Act,  1908
relating to appeals  shall  apply  to  every  appeal  preferred  under  this
section.”


13.   Section 78 deals with acquisition of immovable  property  or  easement
by agreement. Section 79 deals with the procedure when it  is  not  possible
to acquire property or easement by agreement. A Corporation  has  the  power
under Part V with respect to public health, safety and convenience.  Chapter
XIII deals with public convenience, Chapter XIV - conservancy, Chapter XV  –
sanitary  provisions, Chapter XVI - water-supply,  Chapter  XVII  –  general
provisions with reference to drainage, water  supply  and  water  and  other
mains, Chapter XVIII  with  public  health  and  safety,  Chapter  XIX  with
markets and slaughter places, Chapter XX – food, drink, drug  and  dangerous
articles, Chapter XXI - restraint of infection; Chapter XXII -  disposal  of
the dead. Part VI relates to lands, buildings  and  streets.  Chapter  XXIII
deals with town planning. Section 291 mandates  for  town  planning  scheme.
Section 292 contains the restriction on  Corporation’s  power  to  undertake
town planning scheme when any scheme under  the  Town  Improvement  Act  has
been formed for the area in question. Colonisation is dealt with in  Chapter
XXIII-A. Chapter XXIV deals with building control under  the  provisions  of
section 293. There is restriction on construction without permission.  Under
section 295 Commissioner has the power to refuse erection or re-erection  of
 buildings. Section 296 contains the provision as to grounds on  which  site
of proposed building may be disapproved. Section 297 deals with the  grounds
on which permission to erect or re-erect building may  be  refused.  Section
299 confers the power upon the Commissioner  to  direct  modification  of  a
sanctioned plan of a building before  its  completion.  Under  section  299A
State  Government  has  the  power  to  cancel  or  revise  permission   for
construction of a building. Section  300  mandates  for  lapse  of  sanction
after one year from the date of such sanction.  Section  302  confers  power
upon the Commissioner to stop  construction  unlawfully  commenced.  Section
303 confers power upon the Commissioner to direct removal of person  from  a
building in which works are unlawfully carried on or  which  are  unlawfully
occupied. Erection and use of  temporary  building  is  to  be  approved  by
Commissioner as provided under section 304. Under Section  305,  Corporation
has the power  to  regulate  line  of  buildings.  Section  306  deals  with
compensation  to  be  paid.  With  respect  to  dangerous   and   insanitary
buildings, the Corporation has the power from  sections  309  to  316.  With
respect to public streets, Corporation has  the  power  under  Chapter  XXVI
contained in sections 317 to 331. Section 322 prohibits all  obstruction  in
streets. Section 323 ensures streets not to be opened or broken up.  Section
318 provides for prohibition of projection  upon  streets.  It  is  apparent
that ample and widest power has been conferred under the Act  of  1956  upon
the local authorities in such matters in public interest.
In re : Provisions of the Act of 1973 :
14.   Provisions contained in the Act of 1973 are also required to be  taken
note of along with the provisions contained  in  the  Town  Improvement  Act
which has a reference in the Act of 1956 in section 292 thereof.
      Under the Act of 1973, section 2(g) defines development plan  includes
a  zoning  plan.  It  defines  ‘local  authority’   to  mean   a   Municipal
Corporation constituted by the Act  of  1956,  Municipal  Council  or  Nagar
Panchayat constituted by or under the M.P.  Municipalities  Act,  1961  etc.
Planning area, regional plan, town development scheme  and  zone  have  been
defined in section 2(o), 2(q), 2(u) and 2(w) of Act  of  1973  respectively.
Same are extracted hereunder :
      “Section 2(o)  “planning  area”  means  any  area  declared  to  be  a
planning area under this Act  and  [non-planning  area  shall  be  construed
accordingly];

Section 2(q) “regional plan” means a plan  for  the  region  prepared  under
this Act, and approved by the State Government;

Section 2(u) “town development scheme”  means  a  scheme  prepared  for  the
implementation of the provisions of a  development  plan  by  the  Town  and
Country Development Authority and includes “scheme”;

Section 2(w) “zone” means any section of a planning area  for  which,  under
the development plan, a detailed zoning plan is prepared;”

15.   Regional planning is dealt with in Chapter III. State  Government  has
the power to declare any area in the State to be a region for  the  purposes
of the Act. Director is empowered to prepare regional plan under section  5.
Section 7 provides for contents thereof. Section 8 provides for  preparation
of the same. Under section 8, objections and suggestions  are  invited  then
Director has to consider them as  per  section  8(2),  afford  a  reasonable
opportunity to all the persons affected thereby  of  being  heard  then  the
State  Government  may  finalise  the  regional   plan   with   or   without
modifications. Proviso to sub-section (2) of  section  9  mandates  that  in
case the State Government modifies the draft  regional  plan  in  that  case
State Government has to publish the same in the Gazette,  invite  objections
and suggestions on the modifications proposed and  after  giving  reasonable
opportunity of being heard, has to finalise it. Section 10  of  the  Act  of
1973 provides that as soon as draft plan is published, no person,  authority
or department of the Government or any other person shall change the use  of
land for any purpose other than agriculture or carry out any development  in
respect of any land contrary to the provisions of the  draft  plan,  without
the prior approval of the Director or an officer not below  the  rank  of  a
Deputy Director. Section 10(3) provides that in case  any  work  is  carried
out in contravention of the provisions of the section,  the  Corporation  or
other local authority or the Collector in areas outside such local areas  of
the authority may cause such work to be removed or demolished  at  the  cost
of the defaulter which shall be recovered from him  as  an  arrear  of  land
revenue. Removal or demolition is contemplated  after  notice  and  hearing.
Section 11  of  the  Act  of  1973  deals  with  exclusion  from  claims  of
compensation  in  certain  cases.  If  compensation  in  respect   of   such
demolition has already been paid under any other law, the  owner  shall  not
be entitled to any compensation by reason  of  the  restrictions  under  the
Act.
16.   Chapter IV of the Act of 1973 deals with the planning areas and  fresh
development plan. As per section 13 thereof, State Government has  to  issue
a notification for constituting planning areas and it can alter,  amalgamate
or divide the area. Section 13(3)  provides  that  once  notification  under
section 13(1) of the Act of 1973 has been issued  a  Corporation  under  the
Act of 1956 and other local authorities,  as  the  case  may  be  under  the
respective Acts ceases to exercise the powers,  perform  the  functions  and
discharge duties which the State Government or the Director is competent  to
exercise, perform and discharge under  the  Act.  Section  13  is  extracted
hereunder :
      “Section 13.  Planning area.  –  (1)  The  State  Government  may,  by
notification, constitute planning areas for the purposes  of  this  Act  and
define the limits thereof.

      (2) The State Government may, by notification,
            (a) alter the limits of the  planning  area  so  as  to  include
therein  or  exclude  therefrom  such  area  as  may  be  specified  in  the
notification;

            (b) amalgamate two or more planning areas so  as  to  constitute
one planning area;

               (c) divide any  planning  area  into  two  or  more  planning
areas;

declare that the whole or  part of the area constituting the  planning  area
shall cease to be a planning area or part thereof.

        (3)   Notwithstanding  anything  contained  in  the  Madhya  Pradesh
Municipal Corporation Act,  1956  (No.  23  of  1956),  the  Madhya  Pradesh
Municipalities Act, 1961 (No. 37 of 1961) or the  Madhya  Pradesh  Panchayat
Raj Adhiniyam, 1993 (No.1 of 1994),  the  Municipal  Corporation,  Municipal
Council or the Nagar Panchayat or a Panchayat, as the case  may  be,  shall,
in relation to the planning areas, from the date of the notification  issued
under sub-section (1), cease to exercise the powers, perform  the  functions
and discharge the duties which the  State  Government  or  the  Director  is
competent to exercise, perform and discharge under this Act.”


17.   Section 14 deals with preparation  of  development  plan.  Section  15
deals with the preparation of existing land use maps and once  the  existing
land  use  map  has  been  published  under  section  15,  section  16  puts
restriction upon the user of the  land  for  any  purpose  other  than  that
indicated without permission  in  writing  of  the  Director  and  no  local
authority notwithstanding anything contained  in  any  other  law,  has  the
power to grant permission for change in the use of land  otherwise  than  as
indicated in the existing land use map without the permission in writing  of
the Director.
18.   Section 17 deals with the contents of the  development  plan.  Section
18 deals with the publication  of  draft  development  plan  prepared  under
section 14 and objections thereto and suggestions  in  writing  have  to  be
invited within 30 days then  the  Committee  under  section  17A(1)  has  to
consider  the  objections  and  suggestions  and  after  giving   reasonable
opportunity to all persons affected thereby, of being  heard,  suggest  such
modifications in the draft development plan as  it  may  consider  necessary
then it has to be submitted to the Director who in turn, within 30 days  has
to submit the same to the  State  Government.  Section  19  deals  with  the
sanction of the development plan. State Government under section  19(1)  may
either  approve  the  development  plan  or  may  approve   it   with   such
modifications as it may consider necessary or may return it to the  Director
to modify the same in accordance with  such  directions  as  may  be  deemed
appropriate. In case the State Government wants to  notify  the  development
plan with modifications, objections  and  suggestions  thereto  have  to  be
invited afresh within 30 days from the date  of  publication  of  notice  in
writing as mandated by  section  19(2)  and  after  giving  hearing  to  the
persons and considering objections and suggestions the State Government  may
confirm the modification in the development  plan  as  provided  in  section
19(3). As per section 19(4) development plan has  to  be  published  in  the
Gazette. As per section 19(5), development plan shall  come  into  operation
from the date of publication of the notice in the Gazette and as  from  such
date shall be binding on all Development Authorities and  local  authorities
functioning  in  the  planning  area.  Sections  18  and  19  are  extracted
hereunder :
      “18. Publication of draft development plan. –  (1) The Director  shall
publish the draft development plan prepared under Section 14 in such  manner
as may be prescribed together with a notice of the preparation of the  draft
development plan and the place  or  the  places  where  the  copies  may  be
inspected, inviting objections and suggestions in writing  from  any  person
with respect thereto, within thirty days from the date of  communication  of
such notice, such notice shall specify in regard to  the  draft  development
plan, the following particulars, namely,

the existing land use maps;

(i-a) the natural  hazard  prone  areas  with  the  description  of  natural
hazards;

a narrative report, supported by maps and charts, explaining the  provisions
of the draft development plan;
the phasing of implementation of the draft development plan as suggested  by
the Director;
the provisions for enforcing the draft  development  plan  and  stating  the
manner in which permission for development may be obtained;
approximate cost of land acquisition for public purposes  and  the  cost  of
works involved in the implementation of the plan.

(2) The committee constituted under sub-section (1) of  Section  17-A  shall
not later than  ninety days after the publication of the notice  under  sub-
section (1), consider all the objections and suggestions as may be  received
within the period specified in the notice under sub-section (1)  and  shall,
after giving reasonable opportunity  to  all  persons  affected  thereby  of
being heard, suggest such modifications in the draft development plan as  it
may consider necessary, and submit, not later  than  six  months  after  the
publication of the draft development plan, the plan as so modified,  to  the
Director together with all connected documents plans, maps and charts.

(3) The Director shall, within 30 days of the receipt of the plan and  other
documents from the committee submit all the documents and plans so  received
alongwith his comments, to the State Government.

19.  Sanction of development plans.-  (1)  As  soon  as  may  be  after  the
submission of the development plan under Section  18  the  State  Government
may either approve the  development  plan  or  may  approve,  it  with  such
modifications as it may consider necessary or may return it to the  Director
to modify the same or to prepare  a  fresh  plan  in  accordance  with  such
directions as the State Government may deem appropriate.

(2)  Where  the  State  Government  approves  the  development   plan   with
modifications, the State Government shall, by  a  notice  published  in  the
Gazette,  invite   objections   and   suggestions   in   respect   of   such
modifications within a period of not less than thirty days from the date  of
publication of the notice in the Gazette.

(3) After considering objections and suggestions and after giving a  hearing
to the persons desirous of being heard, the  State  Government  may  confirm
the modification in the development plan.

(4)The State Government shall publish a public notice in the Gazette and  in
such other manner as may be prescribed of the approval  of  the  development
plan approved under the foregoing provisions and the place or  places  where
the copies of the approved development plan may be inspected.

(5) The development  plan  shall  come  into  operation  from  the  date  of
publication of the said notice in the Gazette under sub-section (4)  and  as
from such date shall be binding on all Development  Authorities  constituted
under this Act and all  local  authorities  functioning  with  the  planning
area.”                                                     (emphasis added)

19.   Section 25 of the Act of 1973 lays down  that  once  Development  Plan
comes into force the use and development  of   land  shall  conform  to  the
provisions of the development plan. It was also provided  in  section  25(2)
that diversion of land shall be subject to the  provisions  of  the  Act  of
1973. Section 25 is extracted below:
“25. Conformity with development plan – (1) After the coming into  force  of
the development plan, the use and development of land shall conform  to  the
provisions of the development plan:

      Provided  that  the  Director  may,  at  its  discretion,  permit  the
continued use of land for the purpose for which it was  being  used  at  the
time of the coming into operation of the development plan:

      Provided further that such permission  shall  not  be  granted  for  a
period exceeding seven years from the date of coming into operation  of  the
development plan.

(2) Notwithstanding anything contained in Section 172 of the Madhya  Pradesh
Land Revenue Code, 1959 (No.20 of 1959)  every  permission  to  divert  land
granted under that section shall be subject to the provisions of this  Act.”
                                  (emphasis added)
20.   It is apparent that the development  plan  once  prepared  is  binding
upon the development authorities in the planning area  as  well  as  on  the
Municipal Corporation and other local authorities as the case may  be.  They
cannot modify and permit the user in contravention thereof. In other  words,
restriction is imposed upon the owners  on  enjoyment  of  the  property  in
violation of the development plan/regional plan, as the case may be.
21.   Section 49 of  the  Act  of  1973  deals  with  the  town  development
schemes. Same has to be prepared under the umbrella  of  the  regional  plan
and development plan. The town development scheme is prepared by the Town  &
Country Development Authority established under the  provisions  of  section
38. The same shall be a body corporate under the provisions  of  section  39
and its constitution is provided in section 40. Section 49  of  the  Act  of
1973 is extracted hereunder :
      “49. Town Development Schemes.- 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  centers,  cultural  centers,
administrative centers;
(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 or other facilities;
(vi) acquisition of land and its development for the purpose of  laying  out
or remodeling of road and street patterns;
(vii)  acquisition  and  development  of  land   for   playgrounds,   parks,
recreation centres and stadium;
(viii) reconstruction 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 the prior  approval
of the State Government.”

22.   Section 50 of the Act of 1973 provides for method  of  preparation  of
town development schemes. The town development  scheme  may  deal  with  the
town expansion, badly laid out areas or slums, acquisition  and  development
of land for housing,  shopping  centres,  cultural  centres,  administrative
centres, commercial and industrial purposes, remodelling of road and  street
patterns, reconstruction of lands for  building  roads,  drains  etc.  Under
section 50 draft plan has to be published, objections have  to  be  invited,
heard and decided. Thereafter scheme is finalized, same has to be  published
in  the  Gazette.  Section  55  provides  that  the  land  needed  for  town
development scheme shall be deemed to be a land required for public  purpose
within  the  meaning  of  Land  Acquisition  Act.  Section  56  deals   with
acquisition of land for Town and Country  Development  Authority.  Within  3
years of preparation of  town  development  scheme  under  section  50,  the
authority may acquire the  land  by  agreement  and  in  case  that  is  not
possible the State Government at the request of the  authority  may  proceed
to acquire the land under the provisions of the Land Acquisition Act.
      The town development scheme  has  to  be  executed  by  the  authority
within 3 years by acquiring the land in case it  is  necessary  as  per  the
provisions contained in section 56.
23.   It is apparent from the provisions contained in the Act  of  1973  the
three different provisions for preparation  of  regional  plan,  development
plan (master plan)  and  town  development  scheme.  The  regional  plan  is
prepared by the State Government. Development plan is prepared  as  per  the
provisions contained in Chapter IV, sections 13 to 19 and  once  development
plan has been finalized, it is binding on development  authorities  as  well
as the Municipal Corporation, Municipal Council and other local  authorities
functioning in the planning area. Town development scheme can be  framed  by
the development authorities and it may declare its intention to do  so  with
the prior approval of the State Government.
In re : Town Planning Scheme of the Act of 1956 :
24.   Section 291 of the Act of 1956 enjoins upon the Municipal  Corporation
to prepare town planning scheme and in case the scheme has  been  sanctioned
under the provisions of Town Improvement Act, it is provided by section  292
of the Act of 1956 that no  town  planning  scheme  shall  be  made  by  the
Corporation. Sections  291  and  292  of  the  Act  of  1956  are  extracted
hereunder :
      “291. Town planning scheme.-  (1)  The  Corporation  may,  and  if  so
required by the Government shall, within six months  of  the  date  of  such
requisition, direct the Commissioner to draw  up  a  town  planning  scheme,
which may, among other things, provide for the following matter, namely:-
(a) a direction that  in  any  street,  portion  of  a  street  or  locality
specified in the scheme the elevation and construction of  the  frontage  of
all buildings thereafter erected or re-erected shall, in  respect  of  their
architectural features, be such as may be fixed for the locality;
(b) a direction that  in  any  street,  portion  of  a  street  or  locality
specified in the scheme,  there  shall  be  allowed  the  construction  only
detached or semi-detached buildings or both, and that the  land  appurtenant
to each building shall be of an area not less than  that  specified  in  the
scheme;
(c) a direction that  in  any  street,  portion  of  a  street  or  locality
specified in the scheme, the construction of more than  a  specified  number
of houses on each acre of land shall not be allowed;
(d) a direction that  in  any  street,  portion  of  a  street  or  locality
specified in the scheme, the construction of shops,  warehouses,  factories,
huts or buildings  of  a  specified  architectural  character  or  buildings
designed for particular purpose shall not be allowed;
 (e) a street line and a building line on either side or on  both  sides  of
any street existing or proposed;
(f) a standard plan, either for the division of land  into  building  sites,
or for the location of buildings within a building site;
 (g) the amount of land which shall be transferred to  the  Corporation  for
public purposes  and  public  streets  by  owners  of  land  on  payment  of
compensation;
(h) the prohibition of building operations permanently or  temporarily  when
by reason of the situation or nature of the land, the erection of  buildings
thereon would be likely to involve danger or injury to health, or  excessive
expenditure of public money in the provision of roads, sewers, water  supply
or other public services;
(i) regulating in the  interest  of  safety,  the  height  and  position  of
proposed walls, fences or hedges near the corners or bends of streets;
 (j) limiting the number or prescribing the sites of new  roads  entering  a
highway maintained by the Government;
(k) regulating, in respect of the erection of any building  intended  to  be
used for purposes of business or industry, the  provision  of  accommodation
for loading, unloading or fuelling vehicles with a view  to  the  prevention
of obstruction of traffic on any highway; and
(l) a direction that  in  any  street,  portion  of  a  street  or  locality
specified in the scheme, the use of land for any purposes  even  though  not
involving the erection of building,  shall  not  be  inconsistent  with  the
provisions of this section with respect of buildings.

(2) When a scheme has been drawn up  under  the  provisions  of  sub-section
(1), the Commissioner shall give public  notice  of  the  scheme  and  shall
therein announce a date not less than 30 days from the date of  such  notice
by which any person may submit to the Commissioner in writing any  objection
or suggestion with regard to the scheme which he may wish to make.

(3) The Commissioner shall within fifteen days of the date  announced  under
the provisions of sub-section  (2),  forward  to  the  Mayor-in-Council  the
notice together with the objections or suggestions, if any, and his  opinion
therefor.

(4) The Mayor-in-Council, shall within fifteen days of the  receipt  of  the
documents relating to the scheme, forward them to the  Corporation  together
with the opinion of the Commissioner and any comments  which  the  Mayor-in-
Council may make.

(5) The Corporation  shall  consider  every  objection  or  suggestion  with
regard to the scheme and may modify the scheme in consequence  of  any  such
objection or suggestion and shall then forward  such  scheme  as  originally
drawn up or as modified, together  with  the  documents  mentioned  in  sub-
section (4) to the Government which may sanction the scheme or  sanction  it
with such modification as it may think fit or may refuse to sanction it,  or
may return it to the Corporation for reconsideration and re-submission by  a
specified date.

(6) If the Corporation fails to submit a scheme within six months  of  being
required to do so under sub-section (1) or fails to re-submit a scheme by  a
specified date when required to do so under sub-section (5),  or  re-submits
a scheme which is not approved by the Government, the  Government  may  draw
up a scheme which shall be published within the limits  of  the  Corporation
together with an intimation of the date by which any person  may  submit  in
writing to the Government any objection or suggestion which he may  wish  to
make. The Government may sanction such scheme  as  originally  published  or
modified  in  consequence  of  any  such  objection  or  suggestion  as  the
Government may think fit.

(7) Notwithstanding anything contained in the foregoing sub-sections if  the
Corporation in case of scheme initiated by it, decides to  drop  the  scheme
it shall intimate the Government accordingly.

(8) The cost of such scheme, or such portion of the cost as  the  Government
may deem fit shall be paid from the Municipal Fund.
(9) When sanctioning a scheme the Government may impose the  conditions  for
the submission of periodical reports on the progress of the  scheme  to  the
Government, and for the inspection and supervision  of  the  scheme  by  the
Government.

(10) No person shall erect or  re-erect  any  building  or  take  any  other
action in contravention of any such scheme or of any  rule  or  byelaw  made
under the provisions of this Act.

292. Restriction on Corporation’s power to undertake town planning scheme --
 Notwithstanding anything contained in section 291, no town planning  scheme
shall be made by the Corporation for any area for which a  scheme  has  been
sanctioned under the provisions of Town Improvement Act.”
                                                        (emphasis added)


      It is apparent that section 292 of the Act  of  1956  refers  to  Town
Improvement Act which was in vogue in different areas  of  erstwhile  Madhya
Pradesh which has ultimately consolidated the different Acts into  the  M.P.
Town Improvement Trust Act, 1960 (hereinafter referred to  as  ‘the  Act  of
1960’).
25.   The Act  of  1960  provided  for  various  improvement  schemes  under
section 30. Section 31 of the Act of 1960 dealt with  types  of  improvement
schemes  such  as  general  improvement  schemes,  re-building,  re-housing,
street, deferred street schemes and development scheme. 10 types of  schemes
were provided under section 31. When scheme was proposed,  consideration  of
representation was also provided. The State  Government  had  the  power  to
sanction, reject or return the improvement scheme  as  provided  in  section
51. In case the State Government sanctioned the scheme it  was  required  to
be notified under section 52 of the Act of 1960. The Act of 1960 has  ceased
to be operative in the areas, once the Act of 1973 has been made  applicable
by establishing  the authorities under the provisions of sections 38 to  40.
In our considered view, the expression ‘scheme’ in section  292  has  to  be
taken to mean the regional plan, development plan and  also  to  any  scheme
under section 49 framed  under  the  Act  of  1973.  The  provision  is  not
confined to a scheme prepared under sections 49 and 50 of the Act  of  1973.
There cannot be two schemes for the same area.
In  re  :  Scope   of   power   of   Corporation   under   Section   305   :

26.   Before taking the question of vires of  the  provisions  contained  in
sections 305 and 306 of the Act of 1956, we consider it appropriate to  deal
with the submissions raised on behalf of the appellants with respect to  its
interpretation and ken of powers conferred upon the  Municipal  Corporation.
Section 305 of the Act of 1956 is extracted hereunder :
      “305. Power to regulate line of buildings.-  (1)  If  any  part  of  a
building projects beyond the regular line of  a  public  street,  either  as
existing or as determined for the future or beyond the front of  immediately
adjoining buildings the Corporation may-
(a) if the projecting part is a  verandah,  step  or  some  other  structure
external to the main building, then at any time, or
(b) if the projecting part is not  such  external  structure  as  aforesaid,
then whenever the greater portion of such building or whenever any  material
portion of such projecting part has been taken down or burned  down  or  has
fallen down,
require by notice  either  that  the  part  of  some  portion  of  the  part
projecting beyond the regular line or beyond  the  front  of  the  immediate
adjoining building, shall be removed,  or  that  such  building  when  being
rebuilt shall be set back to or towards the said  line  or  front;  and  the
portion of land added to the street by such setting back  or  removal  shall
henceforth be deemed to be part of the public street and shall vest  in  the
Corporation :
     Provided that the Corporation shall  make  reasonable  compensation  to
the owner for any damage or loss  he  may  sustain  in  consequence  of  his
building or any part thereof being set back.
(2) The Corporation may, on such terms as it thinks fit, allow any  building
to be set forward for the improvement of the line of the street.”

27.   It was submitted on behalf of the appellants that for  the  exigencies
contemplated  in  clause  (a)  of  sub-section  (1)  of  section  305   when
projecting part is external to the main building then notice can  be  issued
at any time for removal of projecting part such as verandah,  step  or  some
other structure and in case  projecting  part  is  as  provided  in  section
305(1)(b) whenever projecting part is greater portion of  such  building  or
whenever any material portion of such projecting part has  been  taken  down
or burned down or has fallen down  then  only  notice  can  be  issued.   No
notice can be issued by the Corporation  under  the  provisions  of  section
305(1) for its removal. The word  ‘or’  in  clause  (b)  in-between  greater
portion of such building and material  portion  is  not  disjunctive.  First
part of clause (b) has to be read conjunctively with the latter  part.  Even
if greater portion of such building and material portion of such  projecting
part is read disjunctively, the words used taken down, burned  down,  fallen
down qualify both the exigencies provided in clause (b). The word  ‘removal’
used in section 305(1) has to be read for the situation in clause (a)  only.
For the situation  covered  by  clause  (b)  notice  is  issued  only  after
happening of the mentioned event and that at the same  time,  when  building
is proposed to be  re-built,  notice  can  be  for  “setting  back”  of  the
building. It was also submitted that in a given situation  when  greater  or
material portion of the building or projecting  part  has  fallen  down  but
some portion of the building which is still projecting beyond  the  building
line, in that situation  Corporation  can  legitimately  ask  the  owner  to
remove the remaining  projecting  portion  of  the  building.  It  was  also
submitted that the latter part of section 305 empowers  the  Corporation  to
issue a notice and require the owner to act in the manner stated  to  remove
or set back while re-building. The section does not empower the  Corporation
to enter and take possession. Thus, Corporation  has  no  power  to  remove,
enter or take possession of greater  portion  or  material  portion  of  the
building. It was also submitted that vesting takes place only after  portion
of the land is added to the public street by setting back or  removal.  Till
that exigency happens, property continues to be that of the  owner.  Section
305 contemplates voluntary action on the part of owner. There  is  conscious
omission as to the power of the Corporation to remove or enter which  cannot
be supplied  by the Court. Municipal Authorities  have  to  act  within  the
confine of the powers conferred upon  them.  They  cannot  commit  trespass.
Thus without acquisition of the land under section 278 or 279, as  the  case
may be, of the  Act  of  1956  on  the  refusal  of  the  owner  to  remove,
Corporation has no right to have the land and remove  the  structure.  Under
the  guise  of  Section  305,  Corporation  cannot  invoke  the   power   of
acquisition of land.
28.   On behalf of the respondents, it  was  submitted  that  the  provision
contained in section 305 authorises the Corporation to remove  any  part  of
the building. If any part of building projects beyond the  regular  line  of
building, existing or as  determined for the future or beyond the  front  of
immediately adjoining buildings,  that part or  some  portion  of  the  part
projecting beyond the regular line or beyond  the  front  of  the  adjoining
building shall be removed. The action taken is in accordance  with  the  law
hence no interference is called for.
29.   In our considered opinion, it is clear that  Section  305  deals  with
the power of Corporation to regulate line of  buildings. If any part of  the
building falls within the regular line of a public  street  either  existing
or as  determined  for  the  future  or  beyond  the  front  of  immediately
adjoining building, the Corporation may issue  a  notice  either  that  part
which is projecting or  some  portion  of  the  part  projecting,  shall  be
removed or that when the building is rebuilt, the portion  projecting  shall
be set back to and the portion of the land  added  to  the  street  by  such
“setting back or removal”, shall henceforth be deemed  to  be  part  of  the
public street and shall vest in the Corporation. The words  ‘that  the  part
or some portion of the part projecting  beyond  the  regular  line’  of  the
public street may be :
(a) greater portion of such building which has not fallen down; or
(b) that projecting part is verandah, step or some other structure  external
to the main building; or
(c) whenever any material portion or  such  material  part  has  been  taken
down, burned down or has fallen down.
      All the abovesaid  exigencies  are  covered  in  the  ken  of  section
305(1). Section 305 only contemplates issuance of a notice, in the  case  of
a public street that the part projecting  is  beyond  the  regular  line  of
public street and is greater portion or material portion  of  such  building
or external portion to the main  building,  shall  be  removed.  It  has  to
intimate its intention to remove the structure.   In  case  any  portion  of
such material part has been taken down, burned down or has fallen down,  the
Corporation may require by notice such portion shall be set back to.
30.   We are not at  all  impressed  by  the  submission  that  section  305
contemplates only voluntary removal by the owner of  the  building.  Section
305 is a wholesome provision with respect to maintaining  the  regular  line
of a public street, existing or as determined for  the  future,  it  clearly
empowers the Corporation to intimate its intention to remove  that  part  of
the structure projecting beyond the regular  line  of  public  street  under
section 305. The primary statutory mandate is  on  Corporation  to  act  for
removal. Obviously, it has power to remove is apparent from  plain  language
otherwise the provision will be  of  no  utility.      The  point  when  the
notice can be issued is clearly culled out in section 305. In  the  case  of
clause (a) when the projecting part is external to the  main  building  such
as verandah, step etc. then notice can be issued at any time and two  points
of happening of exigencies are provided separately in clause  (b)  :  first,
whenever projecting part is not an  external  structure  but  is  a  greater
portion of such building and it projects beyond the regular line  of  public
street and second exigency  provided  in  clause  (b)  has  to  be  read  as
“whenever any material portion of such projecting part has been  taken  down
or burned down or has fallen down”.
31.   Even in clause (b) of section 305, ‘removal’ is  contemplated  and  is
not confined to a case under  clause  (a).  The  Legislature  has  used  two
expressions : “whenever greater  portion  of  such  building”  and  secondly
“whenever any material portion of projecting part has  been  taken  down  or
burned down or has fallen down”, which  means that clause (b) clearly  fixes
the time for action that ‘whenever’ projecting part of  greater  portion  of
such building is projecting  beyond  the  regular  line  of  public  street,
removal can be made or ‘whenever’ material portion of such  projecting  part
has been taken down, burned down or fallen down, it has to be set  back  and
part which  has  not  fallen  down,  has  to  be  removed.  The  removal  is
contemplated even in  the  latter  exigency  of  clause  (b)  when  material
portion of such part has been taken down, burned down or fallen down,  still
some portion other than ‘material portion’ projecting in  line  may  require
removal which has not been taken down, fallen down or burned  down.   It  is
not that the expression that entire building projecting in regular  line  of
public street  has  been  taken  down,  burned  down  or  fallen  down.  The
expression in the latter part of clause (b) is taken down,  fallen  down  or
burned down is not related to  the entire projecting part. Thus the  earlier
part “whenever greater portion of such building” is  projecting  beyond  the
regular line of public street, has to be read with  respect  to  a  building
which has not fallen down, taken down or  burned  down.  The  word  ‘or’  in
section 305(1)(b) used between greater portion of such building or  whenever
any material  portion  of  such  building  has  to  be  read  disjunctively.
Nonetheless ‘removal’ is contemplated in all the exigencies. In case it  has
been taken down, burned down or fallen down, it  may  require  the  material
portion to be set back and remaining portion can be removed  in  the  latter
exigency of clause (b) itself.
32.   In our opinion, a notice can be issued by the Corporation for  removal
of the existing structure also. The opening part of section 305(1)  and  its
latter part after clause (b) make it abundantly clear that a building  or  a
part of the portion which projects into the periphery  of  regular  line  of
public street, can be removed. The interpretation  suggested  on  behalf  of
the appellants that in case the building has been taken  down,  burned  down
or fallen down, only in that exigency action  can  be  taken  under  section
305(b) and not otherwise, would render the provision  contained  in  section
305 and the provision as to public street in the development plan otiose.
33.   Learned counsel  for  the  appellant/s  has  placed  reliance  on  the
provisions contained in sections 307(3), 309(2),  309(5),  309(6),  310  and
313 so as to contend that statutory power has  been  conferred  under  those
provisions and Commissioner has been statutorily authorized on  the  failure
of the owner to remove the construction after notice  to  remove  the  same.
Therefore, it was submitted that accordingly the provisions of  section  305
should be construed by us so as to negate the  power  of  removal  with  the
Corporation.
34.   In our opinion, the provision contained  in  section  307  is  totally
different. Where an  adjudicatory  process  is  involved,  person  can  show
sufficient cause why the building or work shall not be removed,  altered  or
pulled down but in the cases falling within  the  purview  of  section  305,
there  is  no  such  adjudicatory  process  or  discretion   provided.   The
expression used in section 307(2) is that show-cause has to be made why  the
work shall not be removed, altered or pulled down, and a person is  required
to show-cause and on his own failure to show  “sufficient  cause”  why  such
building or work should  not  be  removed,  Commissioner  is  authorized  to
remove, alter or pull down the building or work under section 307(3).  Since
the notice which is contemplated under section 305 does not involve  such  a
case showing sufficiency of cause in case building  is  falling  within  the
regular line of public street, the building is necessarily  to  be  removed.
The expression used is that require by notice removal of the  building,  the
legislative mandate for removal is addressed  to  the  Corporation  also  to
remove the same. As such it was not necessary to repeat it once  over  again
in the provisions contained in section 305.
35.   Section 309 deals with the provisions  regarding  building  unfit  for
human habitation. In that eventuality certain  procedure  is  specified.  We
find absolutely no ground  to  accept  the  submission  that  the  procedure
prescribed under section 309 or the  provisions  thereof  should  guide  the
interpretation  of  section  305  and  for  similar  reason  the  provisions
contained in sections  310  and  313  relating  to  dangerous  building  and
removal of building material from any places in certain cases which  may  be
considered harming or breeding places for riot or other source of danger  or
nuisance to the occupier, then a notice shall be required to be issued;  and
on failure the Commissioner is empowered to remove; whereas  the  provisions
of section 305 cast a mandate upon the Corporation  to  remove  whatever  is
projecting beyond the regular line of public street. The intendment  of  the
aforesaid provisions is different, hence render no help or guide  so  as  to
interpret the provisions of section 305. In fact  when  all  the  provisions
are considered, the interpretation of  section  305  is  fortified  that  it
primarily  mandates  the  Corporation  to  take   action   of   removal   on
satisfaction of exigencies specified therein.

In re : Possession/deemed to be part of  public  street  and  vesting  under
section 305 of the Act of 1956:

36.   Coming to question as to when vesting takes  place.  As  soon  as  the
building or the projecting part has been removed  or  when  the  Corporation
has issued a notice when such re-building shall be set back or to the  front
line, the line added by such  action  by  setting  back  or  removal,  shall
henceforth without any further formalities,  be  deemed  to  be  a  part  of
public street and shall vest in the Corporation.  Vesting  does  not  depend
upon the volition of the owner. Otherwise  no  public  street  can  ever  be
brought in regular line.  The  Corporation  has  the  power  to  remove,  as
discussed hereinabove. As deemed vesting is provided under Section  305,  as
such there is no requirement of separate provision  for  taking  possession.
For removal there is specific provision and adequate  safeguards  have  been
provided for fixing the regular line of a public street while preparing  the
development plan or the town development scheme, as the case may be.
37.   In The Municipal Corporation, Indore v.  K.N.  Palsikar  AIR  1969  SC
579, a question arose whether it was open to  the  Corporation  to  withdraw
from the acquisition. This Court has  laid  down  that  there  is  automatic
vesting of land in the Corporation under  section  305  once  the  requisite
conditions are satisfied. This Court has observed as under :
“14. Regarding point No. 1, we agree with the High Court that  there  is  no
provision in the Act for enabling  the  Corporation  to  withdraw  from  the
acquisition proceedings.  In fact, it seems to us that  there  is  automatic
vesting of the land in the Corporation under Sec.  305  once  the  requisite
conditions are satisfied.  …..”

(emphasis supplied)

      As to the third question framed  by  this  Court  in  Palsikar’s  case
(supra) to the effect that when the Act provides only for  compensation  and
not any solatium whether it could be paid. This Court laid  down  that  once
the Land Acquisition Act is applicable under section  387  solatium  can  be
claimed.
38.   It was  also  submitted  that  possession  can  be  taken  only  after
compensation has been paid as held in State of Uttar  Pradesh  v.  Hari  Ram
(2013) 4 SCC 280. It was submitted that there is  a  difference  between  de
jure possession and de facto possession. It was  also  submitted  that  mere
vesting in the absence  of  specific  substantive  provision  providing  for
taking over of possession forcibly, does  not  authorize  any  authority  to
take over the physical possession of any property. The decision in State  of
U.P. v. Hari Ram (supra) is quite distinguishable  and  is  based  upon  the
provisions  contained  in  section  10  of  the  Urban  Land  (Ceiling   and
Regulation) Act, 1976 (in short, “the Act of 1976”). Section  10(5)  whereof
provides after the land has vested  to  take  possession  by  a  notice.  On
failure  to  comply  with  the  notice  to  hand-over  possession  Competent
Authority may take possession under section 10(6) of the Act of 1976.  Legal
fiction of vesting has been taken into consideration and discussed  by  this
Court in the said decision. This Court has laid down that while the  meaning
of the legal fiction has to be ascertained for what purpose  it  is  created
and should be carried  as  far  as  necessary  to  achieve  the  legislative
purpose, the word ‘vest’ in a statute has  different  meaning  in  different
contexts. This Court has also held that “vest/vested” therefore may  or  may
not include transfer of possession, the meaning  of  which  depends  on  the
context in which it has been used and the interpretation  of  various  other
related provisions. This  Court  in  Hari  Ram  (supra)  has  discussed  the
meaning of  such legal fiction thus :
“18. The legislature is  competent  to  create  a  legal  fiction,  for  the
purpose of assuming existence of a fact which does not  really  exist.  Sub-
section (3) of Section 10 contained two deeming provisions such  as  “deemed
to have been acquired” and “deemed to have been vested absolutely”.  Let  us
first  examine  the  legal  consequences  of  a  “deeming   provision”.   In
interpreting the provision  creating  a  legal  fiction,  the  court  is  to
ascertain for what purpose the fiction is  created  and  after  ascertaining
this, the court is to assume all those  facts  and  consequences  which  are
incidental or inevitable corollaries to the giving effect  to  the  fiction.
This Court in Delhi Cloth and General Mills Co. Ltd. v. State  of  Rajasthan
(1996) 2 SCC 449 held that what  can  be  deemed  to  exist  under  a  legal
fiction are facts and not legal consequences which do not flow from the  law
as it stands.
19. James, L.J. in Levy, In re, ex p Walton (1881) 17 Ch  D  746  speaks  on
deeming fiction as: (Ch D p. 756)
“… When a statute enacts that something shall be deemed to have  been  done,
which in fact and [in] truth was not done, the court is entitled  and  bound
to ascertain for what  purposes  and  between  what  persons  the  statutory
fiction is to be resorted to.”

24. The expression “deemed to have been acquired” used as a deeming  fiction
under sub-section (3) of Section 10 can only mean acquisition  of  title  or
acquisition of interests because till that time the land may  be  either  in
the ownership of the person who held that vacant land  or  to  possess  such
land as owner or as a tenant or as mortgagee and  so  on  as  defined  under
Section 2(1) of the Act. The word “vested” has not been defined in the  Act,
so also the word “absolutely”. What is vested absolutely is  only  the  land
which is deemed to have acquired and  nothing  more.  The  word  “vest”  has
different meaning in different  context;  especially  when  we  examine  the
meaning of “vesting” on the basis of a statutory  hypothesis  of  a  deeming
provision which  Lord  Hoffmann  in  Customs  and  Excise  Commissioners  v.
Zielinski Baker and Partners Ltd. (2004) 2  All  ER  141  (HL)  at  para  11
described as “heroic piece of deeming”.

28.  “Vest”/“vested”,  therefore,  may  or  may  not  include  “transfer  of
possession”, the meaning of which depends on the context  in  which  it  has
been placed and the interpretation of various other related provisions.”

      Though in the context of section 10  of  the  Urban  Ceiling  Act  and
provision of taking possession, this Court in  Hari  Ram  (supra)  has  laid
down that “vesting”  under  section  10  takes  in  every  interest  in  the
property including de jure possession and not de  facto  but  it  is  always
open to a person to voluntarily surrender and give possession under  section
10(3) of the Act, which is not the position in the instant case as  held  by
us in removal of the building under section 305 of the Act of  1956,  it  is
implicit that once removal is made, vesting follows  and  possession  stands
transferred as part of public street. When we consider the  deeming  fiction
in section 305 and vesting  provision,  de  jure  and  de  facto  possession
automatically vested in the Corporation on the happening of  the  exigencies
as provided in section 305.
39.   It was submitted on behalf of  appellants that there  is  a  conscious
omission in the provision contained in  section  305  with  respect  to  the
power of entry, removal or to take possession. The  appellants  have  relied
upon the decision of this Court in The  Commissioner  of   Sales  Tax,  U.P.
Lucknow  v. M/s. Parson Tools & Plants, Kanpur (1975) 4 SCC 22, thus  :
“16. If the legislature  wilfully  omits  to  incorporate  something  of  an
analogous law in a subsequent statute, or even if there is a  casus  omissus
in a statute, the language of which is otherwise plain and unambiguous,  the
Court is not competent to  supply  the  omission  by  engrafting  on  it  or
introducing in  it,  under  the  guise  of  interpretation,  by  analogy  or
implication, something what it thinks to be a general principle  of  justice
and  equity.  To  do  so  “would  be  entrenching  upon  the  preserves   of
Legislature”, the primary function of a court of law being  jus  dicere  and
not jus dare.”

40.   It was also submitted on behalf of the appellant/s that even if  there
is some mistake or casus omissus or defect in the phraseology  used  by  the
Legislature, the court cannot aid the Legislature’s  defective  phrasing  of
an Act or add and amend or, by construction, make up the deficiencies  which
are left in the Act, placing reliance on the decisions in Nalinakhya  Bysack
v. Shyam Sunder Haldar & Ors. (1953) SCR  533;  Punjab  Land  Development  &
Reclamation Corporation Ltd. v. Presiding Officer, Labour Court,  Chandigarh
(1990) 3 SCC 682; Union of India & Anr.  v.  Deoki  Nandan  Aggarwal  (1992)
Supp. 1 SCC 323; and Padma Sundara Rao (Dead) & Ors. v. State of   T.  N.  &
Ors. (2002) 3 SCC 533.

41.   In The Commissioner of Sales Tax, U.P., Lucknow v. M/s.  Parson  Tools
& Plants, Kanpur (supra), this Court has laid down that if  the  Legislature
wilfully omits to incorporate something of an analogous law in a  subsequent
statute, or even if there is a casus omissus in a statute, the  language  of
which is otherwise plain and unambiguous, the  Court  is  not  competent  to
supply the omission by engrafting on it or  introducing  in  it,  under  the
guise of interpretation,  by  analogy  or  implication,  something  what  it
thinks to be a general principle of justice and equity.

42.   In Punjab Land Development and Reclamation Corpn. Ltd., Chandigarh  v.
Presiding Officer, Labour Court (supra), this Court has laid down that  when
there is gap in the provision, it should be remedied by the  legislature  by
amendment.  Court has only to interpret  a  statute  and  apply  it  to  the
facts. This Court has laid down thus :
“79. The court has to interpret a statute and apply it to  the  facts.  Hans
Kelsen in his Pure Theory of  Law  (p.  355)  makes  a  distinction  between
interpretation by the science of law or jurisprudence on the  one  hand  and
interpretation by a law-applying organ (especially the court) on the  other.
According  to  him  “jurisprudential  interpretation  is  purely   cognitive
ascertainment of the meaning of legal norms.  In  contradistinction  to  the
interpretation by legal  organs,  jurisprudential  interpretation  does  not
create law”.  “The  purely  cognitive  interpretation  by  jurisprudence  is
therefore unable to fill alleged gaps in the  law.  The  filling  of  a  so-
called gap in the law is a law-creating function that can only be  performed
by a law-applying organ; and the function of creating law is  not  performed
by jurisprudence interpreting law. Jurisprudential interpretation can do  no
more than exhibit all possible meanings of a legal  norm.  Jurisprudence  as
cognition of law cannot decide between the possibilities  exhibited  by  it,
but must leave the decision to the legal organ who, according to  the  legal
order, is authorised to apply the law”. According to the author  if  law  is
to be applied by a legal organ, he must determine the meaning of  the  norms
to be applied: he must ‘interpret’  those  norms  (p.  348).  Interpretation
therefore is an intellectual activity which accompanies the process  of  law
application in its advance from a higher level to a lower  level.  According
to him, the law to be applied is a frame. “There are cases  of  intended  or
unintended indefiniteness at the lower level and several  possibilities  are
open to the application of law”. The traditional theory  believes  that  the
statute, applied to a concrete case, can  always  supply  only  one  correct
decision and that the  positive-legal  ‘correctness’  of  this  decision  is
based  on  the  statute  itself.  This  theory  describes  the  interpretive
procedure as if it consisted merely in an intellectual act of clarifying  or
understanding; as if the law-applying organ had to use only his  reason  but
not his will, and as  if  by  a  purely  intellectual  activity,  among  the
various existing possibilities only one correct  choice  could  be  made  in
accordance with positive law.  According  to  the  author:  “The  legal  act
applying a legal norm may be performed in such a way that  it  conforms  (a)
with the one or the other of the different meanings of the legal  norm,  (b)
with the will of the norm  creating  authority  that  is  to  be  determined
somehow, (c) with the  expression  which  the  norm-creating  authority  has
chosen, (d) with the one or the other of the  contradictory  norms;  or  (e)
the concrete case to which the two contradictory norms refer may be  decided
under the assumption that the two contradictory norms annul each  other.  In
all these cases, the law to be  applied  constitutes  only  a  frame  within
which several applications are possible, whereby every  act  is  legal  that
stays within the frame”.

      In Union of India & Anr. v. Deoki Nandan Aggarwal (supra), this  Court
has laid down that courts cannot supply omissions to a statute and  a  court
cannot invoke the principle of affirmative action  to  avoid  discrimination
so as to modify the legislative policy. In Padma Sundara Rao (dead)  &  Ors.
v. State of T.N. & Ors. (supra), this Court held when casus  omissus  cannot
be supplied by the Court.  Reliance has also been placed upon the  decisions
in Jones v. Wrotham Park Settled Estates &  Anr.  (1979)  1  AER  286;  Inco
Europe Ltd & Ors. v. First Choice Distribution (a firm) & Ors. (2000) 2  AER
109; and Singareni Collieries Co. Ltd. v. Vemuganti Ramakrishan Rao  &  Ors.
(2013) 8 SCC 789 which are  the  cases  in  which  the  court  has  supplied
omissions, the same is based upon  the  principle  of  true  intent  of  the
Legislature and in order to give effect to the said intent, the  courts  can
supply words which appear to be  accidentally  omitted  or  if  the  literal
construction would in fact do violence to  the  legislative  objective.  For
that, three conditions must be satisfied before this course can  be  adopted
: (i) that the intended purpose of the statute  is  not  being  achieved  by
literal  construction  of  the  statute;  (ii)  that  by  inadvertence   the
draftsmen and Parliament failed to  give  effect  to  that  purpose  in  the
provision; and (iii) the substance of the provision  Parliament  would  have
made an be known with precision, though  not  in  exact  language,  had  the
error in the bill  been noticed.
43.   There is no dispute with the principles laid down  by  this  Court  in
the aforesaid dictums. However the language of section 305 is plain,  simple
and clear. In our opinion there is no defect in the  phraseology  used.  The
exigencies when the notice can be issued  including  the  vesting  part  and
deeming fiction are very clear. In view of aforesaid discussion, we  do  not
find any deficiency in the phraseology used in section 305  of  the  Act  of
1956, as such we do not venture to add, substract, amend or by  construction
make up the deficiencies. We find that there  is  no  omission  or  lacunae,
much less casus  omissus  as  submitted,  in  the  provisions  contained  in
section 305 of the Act of 1956.
44.   In the case of Municipal Corporation,  Bhopal,  the  action  has  been
taken as per the development plan/master plan, 2005  notified  in  the  year
1995. With respect to Indore, action has been taken as per the  Master  Plan
of 1991 notified in the year 1975 and Master Plan  of  2021  has  also  been
notified. Both are the cases of BRTS corridor project. As  such  action  has
been taken under section 305 and in case of  Indore,  it  is  also  admitted
that there was a scheme framed under section 49 read with section 50 of  the
Act of 1973. In the case of Bhopal, the appellants  have  not  pleaded  that
the scheme under sections 49 and 50 has not been prepared.  Nonetheless  the
fact remains that Bhopal Municipal Corporation has  initiated  action  under
section 305 pursuant to the permission  given  by  the  High  Court  by  its
interim order to enforce the provisions of Development Plan,  2005  notified
in the year 1995 in which the width of the corridor has been so provided.
45.    Gauged  in  the  aforesaid  perspective  various  provisions  and  in
particular  restrictive  provisions  contained   in   the   Act   of   1973,
restrictions put on the user of the land  by  the  owner  on  erection,  re-
erection under the  Act  of  1956  etc.,  it  is  apparent  that  the  power
conferred under section 305 has to be  exercised  with  respect  to  regular
line of a public street, either existing or as determined for  future,  when
hearing has already been afforded  while  laying  down  regular  line  under
section 18/19 of the Act of 1973 and the power is  conferred  by  notice  to
remove the building under section 305 of the Act of 1956 which includes  all
the powers and steps which are necessary for removal of such  building.  The
vesting takes place, as soon as the building is removed or notice is  served
for the building to be set back, land is deemed to be  part  of  the  street
and shall vest in the Corporation. Thus, by deeming  fiction  vesting  takes
place, as such there was no necessity of specific provision for taking  over
of the possession that is implicit in the deeming part and  vesting  of  the
property by legal fiction.


In re : Section 78/79 of the Act of 1956 and Section 56 of the Act  of  1973
:
46.   It was also submitted that when the  provisions  of  the  statute  are
plain and unambiguous, court shall not interpret the  same  in  a  different
manner only because harsh consequences arise  therefrom  and  the  authority
should be asked to acquire the land  as  per  the  provisions  contained  in
section 79 of the Act of 1956. Section 305 is required  to  be  harmoniously
construed  along   with   other   provisions   within   the   constitutional
limitations.  Reliance has been placed  on  a  decision  of  this  Court  in
Nasiruddin v. Sita  Ram Agarwal (2003) 2 SCC 577.

47.   It was also submitted on behalf of  the  appellants  that  when  under
section 56 of the Act of 1973 land has been acquired  for  town  development
scheme by development authorities, the power cannot be treated  to  be  with
the Corporation to vest the  property  in  the  public  street  without  its
acquisition under the provisions of section 305 of the Act of  1956  without
acquisition under  section  79  thereof.  It  is  necessary  to  notice  the
provisions contained in sections 78 and 79 of the Act of  1956  and  section
56 of the Act of 1973. The provisions contained in sections  78  and  79  of
the Act of 1956 are extracted  hereunder :
      “78. Acquisition of immovable property or easement by agreement.-
(1) Whenever it is provided by this Act that the  Commissioner  may  acquire
or whenever it is necessary or expedient for any purpose of  this  Act  that
the Commissioner shall acquire, any immovable property,  such  property  may
be acquired by the Commissioner on behalf of the  Corporation  by  agreement
on such terms and at such rates  or  prices,  or  at  rates  or  prices  not
exceeding such maxima, as shall be approved by the  Mayor-in-Council  either
generally for any class of cases or specially in particular case.
(2)  Whenever,  under  any  provision  of  this  Act  the  Commissioner   is
authorized to agree to pay the whole or  any  portion  of  the  expenses  of
acquiring any immovable property, he shall do so on such terms, and at  such
rates or prices, or at rates or prices not exceeding such maxima,  as  shall
have been approved by the Mayor-in-Council:
     Provided that  no  agreement  for  the  acquisition  of  any  immovable
property under sub-section (1) or (2) at  a  price  exceeding  one  thousand
rupees shall be  valid  until  such  agreement  has  been  approved  by  the
Corporation.
 (3)  The  Commissioner  may,  on  behalf  of  the  Corporation  acquire  by
agreement any easement  affecting  any  immovable  property  vested  in  the
Corporation and the provisions of sub –sections (1) and (2) shall  apply  to
such acquisition.

79. Procedure when immovable property or easement can  not  be  acquired  by
agreement.-
(1) Whenever the Commissioner is unable  under  Section  78  to  acquire  by
agreement any immovable property or any  easement  affecting  any  immovable
property or whenever any immovable property or any  easement  affecting  any
immovable property vested in the Corporation is required  for  the  purposes
of this Act, the Government may in its discretion upon  the  application  of
the Commissioner made  with  the  approval  of  the  Mayor-in-Council  order
proceedings to be taken for acquiring the same on behalf of the  Corporation
as if such property or easement  were  land  needed  for  a  public  purpose
within the meaning of the Land Acquisition Act, 1894.
(2) The amount of the compensation awarded and all  other  charges  incurred
in the acquisition of any such property or easement shall,  subject  to  all
other provisions of this Act, be forthwith  paid  by  the  Commissioner  and
thereupon the said property or easement shall vest in the Corporation.
(3) When any land is required for a  new  street  or  for  the  widening  or
improving of an existing street, the Commissioner may  proceed  to  acquire,
in addition to the land to be occupied by the  street,  the  land  necessary
for the sites of the building to be erected on both sides  of  the  streets,
and such land shall be deemed to be required for the purposes of this Act.”

       Section 56 of the Act of 1973 is extracted hereunder :
      “56. Acquisition of land for Town and Country Development  Authority.-
The Town and Country Development Authority may at any time  after  the  date
of publication of the final town development scheme  under  Section  50  but
not later than three years therefrom, proceed to acquire  by  agreement  the
land required for the implementation of the scheme and, on  its  failure  so
to acquire, the State Government  may,  at  the  request  of  the  Town  and
Country Development  Authority  proceed  to  acquire  such  land  under  the
provisions of the Land Acquisition Act, 1894 (No. 1  of  1894)  and  on  the
payment of compensation  awarded  under  that  Act  and  any  other  charges
incurred by the State Government in connection  with  the  acquisition,  the
land shall vest in the Town and Country  Development  Authority  subject  to
such terms and conditions as may be prescribed.
      Provided that the said  agreement  may  contain  such  conditions  and
executed in such manner as may be prescribed.”

48.   In order to understand the procedure of compensation prescribed  under
section 305, we have to take note of the provisions  contained  in  sections
306 and 387 of the Act of 1956 also. The provisions are extracted  hereunder
:
      “306. Compensation.- (1) No compensation  shall  be  claimable  by  an
owner for any damage which he may sustain in consequence of the  prohibition
of the erection of any building.

     (2) The Corporation shall make reasonable  compensation  to  the  owner
for damage or loss which he may sustain in consequence  of  the  prohibition
of the re-erection of any building or part of a building except  in  so  far
as the prohibition is necessary under any rule or byelaw :
      Provided that the Corporation shall  make  full  compensation  to  the
owner for any damage he may sustain in consequence of his  building  or  any
part thereof being set back unless for a  period  of  three  years  or  more
immediately preceding such notice the building has by reason  of  its  being
in a ruinous or dangerous condition become unfit  for  human  habitation  or
unless an order of prohibition issued under section 286 has been  and  still
is in force in respect of such building.

     (3) The Corporation shall make reasonable  compensation  to  the  owner
for any damage or loss which he may sustain consequence of the inclusion  of
his land in a public street  but  in  assessing  such  compensation,  regard
shall be had to the benefits accruing to that owner from the development  of
the land belonging to him and affected by such street.”

387. Arbitration in cases of compensation, etc.- (1) If an agreement is  not
arrived at with respect to any compensation or damages  which  are  by  this
Act directed to be paid, the amount and if necessary  the  apportionment  of
the same shall be  ascertained  and  determined  by  a  Panchayat  of  three
persons of whom one shall be  appointed  by  the  Corporation,  one  by  the
party, to or from whom such  compensation  or  damages  may  be  payable  or
recoverable, and one, who shall  be  Sarpanch,  shall  be  selected  by  the
members already appointed as above.
     (2) If either party or both parties fail to appoint members within  one
month from the date of either party receiving written notice from the  other
of claim to such compensation or damages, or if the members fail  to  select
a Sarpanch, such members as may be necessary  to  constitute  the  Panchayat
shall be appointed, at the instance of either party, by the District  Court.

     (3) In the event of the Panchayat not  giving  a  decision  within  one
month or such other longer period as may be agreed to by  both  the  parties
from the date of the selection of the Sarpanch or of the appointment by  the
District Court of such  members  as  may  be  necessary  to  constitute  the
Panchayat, the matter shall, on application by either  party  be  determined
by the District Court which shall, in cases, in which  the  compensation  is
claimed in respect of land, follow as far as may be the  procedure  provided
by the Land Acquisition Act, 1894, for proceedings in matters  referred  for
the determination of the Court :

     Provided that-
(a) no application to the Collector for a reference shall be necessary, and
(b) the court shall have full power to give and apportion the costs  of  all
proceedings in manner it thinks fit.

   (4) In any case where the compensation is claimed in respect of land  and
the Panchayat has given a decision, either party, if dissatisfied  with  the
decision, may within a month of the  date  thereof  apply  to  the  District
Court  and  the  matter  shall  be  determined  by  the  District  Court  in
accordance with the provisions of sub-section (3).

   (5) In any case where the compensation is claimed in respect of any  land
or building, the Corporation may after  the  award  has  been  made  by  the
Panchayat or the District Court, as the case may be, take possession of  the
land or building after paying the amount of the compensation  determined  by
the Panchayat or the District Court to the party to whom such  compensation,
may be payable. If such party refuses to accept  such  compensation,  or  if
there is no person competent to alienate the land or building, or  if  there
is any dispute as to the title to the compensation or as to the  appointment
of it, the Corporation shall deposit the amount of the compensation  in  the
District Court, and take possession of such property.”

49.   We  have  extracted  the  definitions  of  ‘private  street’,  ‘public
street’ and ‘street’ as defined in sections 5(45), 5(49) and  5(55)  of  the
Act of 1956. Private street means a street which is  not  a  public  street.
Public street means any street over which the public have a right of way  or
which have been leveled, paved, metalled, asphatled, channeled,  sewered  or
repaired out  of  municipal  or  other  public  funds  or  which  under  the
provisions of the Act, becomes a public street as provided  in  section  330
and which includes the roadway over any public bridge or  causeway,  footway
attached to any such street, public  bridge  or  causeway;  and  the  drains
attached thereto. Street means any road, footway,  square,  court  alley  or
passage, accessible  whether  permanently  or  temporarily  to  the  public.
Public street and private street are separately defined – though the  public
street may also include any street  provided  in  section  5(49)  but  every
street is not a public street and private street is a street which is not  a
public street. Any street may be declared to  be  public  street  under  the
provisions of section 330. In the exigencies as provided in sub-section  (1)
thereof and Commissioner may  also  after  inviting  objections,  declare  a
street or part of the same to be public street, and an  appeal  is  provided
against the decision. Under Section  305  the  power  is  conferred  on  the
Municipal Corporation to remove building or any part of the building  beyond
the regular line of a “public street”; whereas the provisions  contained  in
section 79(3) is with respect to a new street or for widening  or  improving
an existing street. There is difference when there is a public street  line,
the special provision contained in section 305 is  attracted.  The  recourse
to the provisions of acquisition under sections 78 and 79 is clearly  ousted
by the special provision contained in Section 305 of the Act of 1956.  Being
a special provision with respect to maintaining a regular line of  a  public
street which has been carved out by the Legislature  under  section  305  of
the Act of 1956, would prevail upon the general provisions with  respect  to
acquisition of land as provided in sections 78 and 79 thereof.
50.   In “The Principles of Statutory Interpretation” by  G.P.  Singh,  13th
Edn. 2012, Chapter 2 in which it has been laid down that  inconsistency  and
repugnancy to be avoided and provisions should  be  harmoniously  construed,
the author has observed thus :
      “It has already been seen that a statute must be read as a  whole  and
one provision of the  Act  should  be  construed  with  reference  to  other
provisions in the same Act so as to  make  a  consistent  enactment  of  the
whole  statute.    Such  a  construction  has  the  merit  of  avoiding  any
inconsistency or repugnancy either within a section  or  between  a  section
and other parts of the stature.   It is the duty of the courts to  avoid  “a
head on clash” between two sections of the same Act and,   “whenever  it  is
possible to do so, to construe  provisions which appear to conflict so  that
they harmonise”.  It should not be  lightly  assumed  that  “Parliament  had
given with one hand what it took away with the other”.   The  provisions  of
one section of a statute cannot be used to defeat those of  another  “unless
it is impossible  to effect reconciliation  between  them”.  The  same  rule
applies  in  regard  to  sub-sections  of  a  section.   In  the  words   of
GAJENDRAGADKAR,  J.:    “The sub-sections  must  be  read  as  parts  of  an
integral whole and as being interdependent; an attempt  should  be  made  in
construing them to reconcile them if it is reasonably possible   to  do  so,
and to avoid repugnancy”.  As stated by VENKATARAMA AIYAR, J.  :  “The  rule
of construction is well settled that when there  are  in  an  enactment  two
provisions which cannot be reconciled with each other,  they  should  be  so
interpreted that, if possible, effect should be  given  to  both.   This  is
what is known as the rule of harmonious construction”. That,  effect  should
be given to both, is the very essence of  the  rule.   Thus  a  construction
that reduces one of the provisions to a “useless lumber”  or  “dead  letter”
is not  harmonious  construction.   To  harmonise  is  not  to  destroy.   A
familiar approach in all such  cases  is  to  find  out  which  of  the  two
apparently  conflicting  provisions  is  more  general  and  which  is  more
specific and to construe the  more  general  one  as  to  exclude  the  more
specific. [South India Corporation (P) Ltd. v. Secretary, Board of  Revenue,
Trivandrum, AIR 1964 SC 207, p. 215 : 1964 (4) SCR 280; Weverly  Jute  Mills
Co. Ltd. v. Raymon & Co. (India) (Pvt.) Ltd, AIR 1963 SC 90 p.95: (1963)   3
SCR 209; J.K. Cotton Spinning & Weaving Mills v. State of U.P., AIR 1961  SC
1170 p.1194: (1962) 1 SCJ 417: (1961) 3  SCR  185;  Paradip  Port  Trust  v.
Their Workmen, AIR 1977  SC  36,  p.44:  1977  SCC  (L&S)  253;  U.P.  State
Electricity Board v. Harishanker, AIR 1979 SC 65; (1978) 4 SCC 16: 1978  SCC
(Lab) 481; Life Insurance Corporation of India v. D.J. Bahadur, AIR 1980  SC
2181, pp.2202, 2208; State of U.P. v.  Renusagar  Power  Co.,  AIR  1988  SC
1737, p.1751: 1988 (4) SCC 59; State  of  Rajasthan  v.  Gopikishan,  supra,
p.1756. See further Life Insurance Corporation of India  v.  S.V.  Oak,  AIR
1965 SC 975, p.980: 1965 (1) SCR 403 (Compulsive provision  will  control  a
discretionary provision].  The question as to the  relative  nature  of  the
provisions general or special has to be determined  with  reference  to  the
area and extent of  their  application  either  generally  or  specially  in
particular  situations.[Collector  of  Central  Excise  Jaipur  v.  Raghuvar
(India) Ltd. JT 2000 (7) SC 99, p.111; (2000) 5 SCC 299: AIR 2000  SC  2027]
The  principle  is  expressed  in  the  maxims  Generalia  specialibus   non
derogant, [General things do not derogate from special things. Osborn’s  Law
Dictionary] and Generalibus  specialia  derogant  [Special  things  derogate
from general things. Osborn’s Law Dictionary].  If a  special  provision  is
made on a  certain  matter,  that  matter  is  excluded  from  the   general
provision.[Venkateshwar Rao v. Govt. of Andhra Pradesh,  AIR  1966  SC  828:
(1966) 2 SCR 172; CIT, Patiala v. Shahzada Nand & Sons, AIR  1966  SC  1342,
p. 1347: (1966) 3 SCR 379; State of Gujarat v.  Patel  Ramajibhai  Danabhai,
AIR 1979 SC 1098, p.1103; 1979 (3) SCC  347;  State  of  Bihar  v.  Yogendra
Singh, AIR 1982 SC 882, p.886: (1982) 1 SCC 664; Maharashtra State Board  of
Secondary and Higher Secondary Education v. Paritosh  Bhupesh  Kumar  Sheth,
(1984) 4 SCC 27, p.47: AIR 1984 SC 1543; State of Rajasthan  v.  Gopikishan,
supra, p.1756].  Apart from resolving conflict  between  two  provisions  in
the Act, the principle can also be used for resolving a conflict  between  a
provision in the Act  and  a  rule  made  under  the  Act.   Further,  these
principles have also been  applied  in  resolving  a  conflict  between  two
different  Acts  and  two  provisions  in  the  Constitution  added  by  two
different  Constitution  Amendment  Acts.   and  in  the   construction   of
statutory rules and statutory orders.  But the  principle,  that  a  special
provision on a matter excludes the application of  a  general  provision  on
that matter, has  not  been  applied  when  the  two  provisions  deal  with
remedies, for validity of plural remedies cannot be doubted.   Even  if  the
two remedies happen  to  be  inconsistent,  they  continue  for  the  person
concerned to choose from, until he elects one of them.”

 (emphasis supplied)

      It is apparent that the maxims Generalia specialibus non derogant  and
Generalibus specialia derogant have to be applied in particular  situations.
If a particular provision is made  on  a  certain  matter,  that  matter  is
excluded from the general provision. Author has referred to the law as  laid
down by this Court, inter alia, in Venkateshwar Rao v. Government of  Andhra
Pradesh AIR 1966 SC 828; C.I.T. Patiala v. Shahzada Nand & Sons AIR 1966  SC
1342; State of Gujarat v. Patel Ramajibhai Danabhai (1979) 3 SCC 347;  State
of Bihar v. Yogendra Singh (1982) 1 SCC 664; and Maharashtra State Board  of
Secondary and Higher Secondary Education v.  Paritosh  Bhupesh  Kumar  Sheth
(1984) 4 SCC 27.
51.   Even assuming that public street is also  a  street,  considering  the
special provisions contained in section 305, recourse  can  be  had  to  the
provision  without  having  adverting  to  the  procedure  prescribed  under
sections 78 and 79 of the Act and the compensation in the case of action  is
taken under section 305  is  provided  under  proviso  to  section  305  and
section 306 read with section 387  to  which  the  provisions  of  the  Land
Acquisition Act, 1894 have been made applicable for determination.   Section
387 provides for procedure in case  compensation  determined  under  section
306 is not acceptable, dissatisfied claimants can  have  resort  to  section
387 which require determination of dispute by Panchayat/arbitration, and  in
case arbitration fails, parties can approach the District Court which  shall
follow the procedure provided in Land Acquisition Act, 1894.  The  provision
of section 387 is very wide and covers all the cases in which  an  agreement
is not arrived at with respect to compensation or damages  which  are  under
the Act directed to be paid. Section  387  would  cover  the  provisions  of
compensation payable under  sections  305  and  306  of  the  Act  of  1956.
Sections 305 and 306 use the expression ‘reasonable compensation has  to  be
paid’  which  would  mean,  reasonable  on  the  principle   acceptable   in
accordance with law. It cannot be fanciful or arbitrary one as suggested  by
the appellants.
52.   The submission raised by the appellants that for acquisition of  land,
sections 78 and 79 should be resorted  to  for  the  purposes  mentioned  in
section 305 cannot be accepted for yet another reason, if the  provision  as
to public street is made dependent upon the acquisition of  land,  the  very
purpose behind the provisions of section 305 would be frustrated as well  as
the public interest, there is already a regular line of public street  fixed
under development plan and is binding under section 19(5) and section 25  of
the Act of 1973. Various rights of ownership which  ordinarily  vest  in  an
owner, are restricted by the regional plan, development  plan  or  the  town
development scheme, as the case may be. User of the owner’s  land,  property
cannot be in derogation to any of them. Development  plan  is  binding  upon
the Corporation and  local  authorities  and  all  concerned  including  the
owners.  Though  they  can  transfer  the  property  but  subject  to   such
restrictions which the property will carry with it. If the land falls  in  a
regular line of public street, no construction can be raised, no  projection
can be made by owner whereas it can be removed or set back, as the case  may
be. In case acquisition is resorted to under  sections  78  and  79,  public
street can never be  widened  and  the  entire  purpose  of  preparation  of
Development Plan shall stand defeated.
53.   What can be achieved by procedural safeguards in case the property  is
acquired under the provisions of the Land Acquisition Act, 1894 or  the  Act
of 2013 by way of holding inquiry, such  exercise  has  already  been  taken
care of  while  preparing  regional  plan,  development  plan  or  the  town
improvement scheme. The widening of  the  public  street  cannot  brook  any
delay.  The  provisions  contained  in  section  387(5)  which  empower  the
Corporation to  take  possession  after  determination  of  compensation  by
arbitration  or  by  District  Court,  would  be  applicable  only  to   the
acquisition resorted to under sections 78 and  79,  particularly  under  the
provisions of section 79 and not to a case which is covered by  the  special
provisions contained in section 305 where the vesting is  deemed  to  be  by
operation of law as soon as there is deemed vesting, the area shall vest  in
the Corporation and it shall be deemed to be a part of public  street.  Thus
the provision of section 387(5) is not attracted when it  is  deemed  to  be
part of the public street on vesting in the Corporation. The  process  under
section 305 read with sections 306 and 387 is  just,  fair  and  reasonable.
The FAR is offered by the Corporation as well as compensation and if  it  is
not acceptable, recourse can be had to the provisions contained  in  section
387 of the Act of 1956. It is not for this Court  to  adjudicate   upon  the
issue in which case FAR would be suitable as part of compensation  and  what
would be the  impact  of  conversion  of  FAR  into  TDR  i.e.  Transferable
Development  Right.  Compensation  in  monetary  terms  is  claimable  under
sections 305, 306 and 387. Thus, when recourse to section  305  is  made  by
the Corporation, it is not necessary to make acquisition  under  section  78
or 79 of the Act of 1956.
54.   Provision of section 56 of the Act of 1973 has also been pressed  into
service to contend that the authorities under  the  Act  of  1973  are  also
required to acquire the land by agreement or under  the  provisions  of  the
Land Acquisition Act for carrying out the purpose  of  development  plan  as
such, this Court should record a conclusion that the provisions  of  section
78/79 of the Act of 1956 should be resorted to.    Reliance has been  placed
on Afjal Imam v. State of  Bihar & Ors. (2011) 5 SCC 729 wherein this  Court
has considered  the  basic  rule  of  harmonious  construction,  when  cross
reference of relevant provisions should be made and in  order  to  reconcile
two apparently inconsistent provisions, one can be read as “subject to”  the
other and if necessary reading down of the provisions has to be made.
      We do not find any substance in the submission as  for  building  line
with respect to public street, a specific provision is contained in  section
305 which will prevail over the general provisions as held by us.  Thus  the
submission is rejected.
55.   It was also submitted that when the law requires a thing  to  be  done
in a particular manner, that thing can be  done  in  that  manner  only  and
other modes of doing it are excluded. For this reliance has been  placed  on
the decisions in Bhavnagar University vs. Palitana Sugar  Mill  (P)  Ltd.  &
Ors. (2003) 2 SCC 111 on the following passage :
“40. The statutory interdict of use and enjoyment of the  property  must  be
strictly construed. It is well settled that when a  statutory  authority  is
required to do a thing in a particular manner, the  same  must  be  done  in
that manner or not at all. The State  and  other  authorities  while  acting
under the said Act are only creature of statute. They must  act  within  the
four corners thereof.”

56.   This Court’s decision in Laxmi Devi v. State of Bihar  &  Ors.  (2015)
10 SCC 241 has been relied in which it has been laid down thus :
“16. The salient concomitants of Section 17(1) deserve enumeration.
16.1. Firstly, the section is attracted even though an award  has  not  been
made which, it appears to us, clearly indicates that the completion of  this
exercise has not been obliterated or dispensed  with  but  has  been  merely
deferred. An unambiguous and unequivocal  statement  could  have  been  made
excluding the requirement of publishing an award.
16.2. Secondly, it is available only on the expiration of fifteen days  from
the issuance of Section 9 notice.  This  hiatus  of  fifteen  days  must  be
honoured as its purpose appears to be to enable the  affected  or  aggrieved
parties  to  seek  appropriate  remedy  before  they  are  divested  of  the
possession and the title over their  land.  The  Government  shall  perforce
have to invite and then consider objections  preferred  under  Section  5-A,
which procedure, as painstakingly and steadfastly observed  by  this  Court,
constitutes the constitutional right to property of every citizen;  inasmuch
as Section 17(4) enables the  obliteration  of  this  valuable  right,  this
Court has repeatedly restated  that  valid  and  pressing  reasons  must  be
present to justify the invocation of these provisions by the Government.
16.3. Thirdly, possession of the land can be taken only if it is needed  for
public purpose, which term stands defined in the preceding Section  3(f).  A
conjoint reading of Sections 17 and  3(f)  makes  it  apparent  to  us  that
urgency provisions cannot be pressed into service  or  resorted  to  if  the
acquisition of land is for companies; however, we must be quick to add  that
this question does not arise before us.
16.4. Fourthly, possession of such lands would vest in the  Government  only
when the foregoing factors have been formally and  strictly  complied  with.
This section enables the curtailment of a citizen’s constitutional right  to
property and can be resorted to only if  the  provisions  and  preconditions
are punctiliously and meticulously adhered to, lest the  vesting  be  struck
down  and  set  aside  by  the  court  in  its  writ  jurisdiction,  on  the
application of Taylor v. Taylor (1875) LR 1 Ch D 426 and  several  judgments
of this Court which has followed this decision (supra).”

      There is no  dispute  with  the  aforesaid  propositions  but  in  the
instant cases the specific procedure prescribed for widening of  the  public
street to remove the projection in the regular line  of  public  street  has
been adopted which is a wholesome procedure. Thus there is no  violation  of
law as the prescribed mode is being followed.
In re : Development Plan and Town Planning Scheme :
57.   It was also submitted that there  is  difference  between  acquisition
and reservation. A development plan merely creates a restriction on user  of
the property and the land does not vest in  the  State  or  the  development
authority on publication of the master plan/development plan.  Reliance  has
been placed on the decision of this Court in Girnar Traders (3) v. State  of
Maharashtra & Ors. (2011) 3 SCC 1. Reference has been made to para  155  and
the same is extracted hereunder:
“155. The Court has to keep in mind the  clearly  stated  legal  distinction
between reservation and designation on  one  hand  and  acquisition  on  the
other. These are well-defined terms used by  the  legislature  in  both  the
enactments and they do not admit of any  synonymity  or  interchangeability.
The reservation under the MRTP Act necessarily  may  not  mean  and  include
acquisition.  The  acquisition  under  the  Land  Acquisition  Act  may  not
necessarily mean and include reservation. They are  well-explained  concepts
within the legislative  scheme  of  the  respective  Acts.  It  may  not  be
necessary at all for an appropriate authority to always acquire  the  entire
or part of the land included in the planned development, while there may  be
cases where the land is acquired  for  the  purpose  of  completing  planned
development. With this distinction in mind, let us, again, refer to some  of
the relevant provisions of both the enactments.”

      The aforesaid submission is too  tenuous  to  be  accepted.  There  is
restriction put on the ownership rights and in the area no construction  can
be raised derogatory to the development plan/master plan. When the  property
vests is clearly culled out in section 305, however the property is held  by
owner once a development plan is prepared, subject to that  use  and  it  is
not necessary to acquire the  land  as  already  discussed  by  us  for  the
purposes mentioned under section  305.  Section  305  is  otherwise  also  a
reasonable method of acquisition of the property and it follows  a  detailed
procedure  for  preparation  of  development  plan/master  plan  or  a  town
improvement scheme, as the case may be, which involves adjudicatory  process
and  once  action  is  taken  under  section  305,  reasonable  compensation
follows, special procedure as prescribed, is a complete Code in  itself  and
even if a person is not satisfied, he can claim adjudication  under  section
387 where the procedure of the Land Acquisition Act, 1894  is applicable.
58.   It was submitted in Bhopal Municipality matters that  in  the  absence
of a scheme having been framed under section 50 of  the  Act  of  1973,  the
provisions of section 305 of the Act of 1956 could  not  be  invoked,  prior
statutory exercise under section 291 thereof is  necessary  which  has  also
not been done. Attention has also been drawn to paragraphs  5.17,  5.18  and
5.19 of W.P. No.5682 of 2016. In para 5.17 it has been pleaded  that  if  it
is held that any existing street will be treated as  building  line  by  the
Commissioner, Municipal Corporation or for that  matter  that  the  building
line determined by the Commissioner shall be the  final  building  line  for
the purpose of section 305 then  on  that  ground  also  section  305  would
become  arbitrary,  discriminatory  and  violative  of  Article  14  of  the
Constitution. It is reiterated in  para  5.17  that  there  has  to  be  the
building line determined only after following the procedure  and  rigors  of
section 291. Again in  para  5.18  non-compliance  with  the  provisions  of
section 291 has been pleaded. In para 5.19 it has been  pleaded  that  until
the Corporation undertakes a statutory exercise of acquisition  as  mandated
under the Act of 2013, they  are  not  legally  entitled  to  take  physical
possession of the land. In our considered opinion  the  pleadings  in  paras
5.16, 5.17, 5.18 and 5.19 do not at all amount on fact or  on  legal  aspect
that there was no scheme under the provisions of sections 49 and  50  framed
by the Bhopal  Development  Authority  under  the  Act  of  1973.  Thus  the
respondent-Corporation was not required to reply in  the  matter  of  Bhopal
what has not been averred by the appellants with respect to framing  of  the
scheme under sections 49 and 50 in the aforesaid writ petitions.
59.   The interpretation suggested upon section 292, as  to  the  expression
scheme under section 291 of the Act of  1956  or  only  to  a  scheme  under
section 49/50 of the Act of 1973 cannot be accepted. We have also  discussed
the provisions of the Act of 1973 and the provisions of section 292  of  the
Act of 1956. Under the Act of 1973, there is a  regional  plan,  development
plan or town development scheme they  have  to  be  understood  included  in
expresssion ‘scheme’ under the provisions of section 292.
60.   On merits also, submission based upon sections 49 and 50  of  the  Act
of 1973 is found to be untenable.   Development plan itself is  binding  and
has to be implemented by the Corporation not only under  the  provisions  of
section 292 but also under the provisions of section 66(1)(y) of the Act  of
1956  which  mandates  a  duty  upon  the  Corporation  for  fulfilling  any
obligation imposed by the Act or under any other law for the time  being  in
force. Provision of section 66(1) is extracted hereunder :
      “66. Matters to be provided for by Corporation.- (1)  The  Corporation
shall make adequate provision,  by  any  means  or  measures  which  it  may
lawfully use or take, for each of the following matters, namely:-
xxx         xxx        xxx
 (y) fulfilling any obligation imposed by this Act or any other law for  the
time being in force;”

      Thus Corporation while taking  action,  is  simply  carrying  out  the
mandate of sections 19(5), 25 and other  provisions  of  the  Act  of  1973.
Framing of the scheme under section 291 as already  held,  is  precluded  by
virtue of the provisions of  section  292,  in  view  of  the  existence  of
development plan which is final as to width  of  road  or  town  development
scheme, as the case may be.
61.   It was also submitted that Town Planning and Municipal Institutes  are
regulating and restricting the use of private property under  the  aforesaid
Acts. They are “expropriatory legislation”.  Thus  they  are  liable  to  be
construed strictly as laid down in Chairman,  Indore  Vikas  Pradhikaran  v.
Pure Industrial Coke & Chemicals Ltd. & Ors. (2007) 8 SCC 705. In  the  said
case the decision in  Hindustan  Petroleum  Corpn.  Ltd.  v.  Darius  Shapur
Chenai & Ors. (2005) 7 SCC 627 has been referred to, wherein this Court  has
considered the question and laid down thus :
“59. In Hindustan Petroleum Corpn. Ltd. v. Darius  Shapur  Chenai  (2005)  7
SCC 627 construing Section 5-A of  the  Land  Acquisition  Act,  this  Court
observed: (SCC pp. 634-35, para 6-7)
“6. It is not in dispute that Section 5-A of  the  Act  confers  a  valuable
right in favour of a person whose lands are sought to  be  acquired.  Having
regard to the provisions contained in Article  300-A  of  the  Constitution,
the State in exercise of its power of ‘eminent domain’  may  interfere  with
the right of property of a person by acquiring the same but  the  same  must
be for a public purpose and reasonable compensation therefor must be paid.
7. Indisputably, the definition of public purpose is of wide  amplitude  and
takes within its sweep the acquisition of land for a  corporation  owned  or
controlled by the State, as envisaged under sub-clause (iv)  of  Clause  (f)
of Section 3 of the Act. But the same would not mean that the State  is  the
sole judge therefor and no judicial review shall lie. (See Jilubhai  Nanbhai
Khachar v. State of Gujarat (1995) supp (1) SCC 596)”

It was further stated: (SCC p. 640, para 29)
“29. The Act is an expropriatory legislation. This Court in  State  of  M.P.
v. Vishnu Prasad Sharma AIR 1966 SC 1593 observed that in such  a  case  the
provisions of the statute should be strictly  construed  as  it  deprives  a
person of his land without  consent.  [See  also  Khub  Chand  v.  State  of
Rajasthan AIR 1967 SC 1074 and CCE v. Orient Fabrics (P) Ltd. (2004)  1  SCC
597]
There cannot, therefore, be any doubt that in a  case  of  this  nature  due
application of mind on the part of the statutory authority was imperative.”
In State of Rajasthan v. Basant Nahata (2005) 12 SCC 77 it was opined:  (SCC
p. 102, para 59)
“In absence of any substantive provisions contained in  a  parliamentary  or
legislative act, he cannot be refrained from dealing with  his  property  in
any manner he likes. Such statutory interdict  would  be  opposed  to  one’s
right of property as envisaged under Article 300-A of the Constitution.”
In State of U.P. v. Manohar (2005) 2 SCC 126 a Constitution  Bench  of  this
Court held: (SCC p. 129, paras 7-8)
“7. Ours is a constitutional democracy  and  the  rights  available  to  the
citizens are declared by the Constitution.  Although  Article  19(1)(f)  was
deleted by the Forty-fourth Amendment to  the  Constitution,  Article  300-A
has been placed in the Constitution, which reads as follows:
 ‘300-A. Persons not to  be  deprived  of  property  save  by  authority  of
law.—No person shall be deprived of his property save by authority of law.’
8. This is  a  case  where  we  find  utter  lack  of  legal  authority  for
deprivation of the respondent’s property by the  appellants  who  are  State
authorities.”
In Jilubhai Nanbhai Khachar v. State of Gujarat (supra) the  law  is  stated
in the following terms: (SCC p. 622, para 34)
“34. The right of eminent domain  is  the  right  of  the  sovereign  State,
through  its  regular  agencies,  to   reassert,   either   temporarily   or
permanently, its dominion  over  any  portion  of  the  soil  of  the  State
including private property without its owner’s consent on account of  public
exigency and for the public good. Eminent domain is  the  highest  and  most
exact idea of property remaining in the  Government,  or  in  the  aggregate
body of the people in their  sovereign  capacity.  It  gives  the  right  to
resume  possession  of  the  property  in  the  manner   directed   by   the
Constitution and the  laws  of  the  State,  whenever  the  public  interest
requires it. The term ‘expropriation’ is  practically  synonymous  with  the
term ‘eminent domain’.”
It was further observed: (SCC p. 627, para 48)
“48. The word ‘property’ used in Article 300-A must  be  understood  in  the
context in which the sovereign power of eminent domain is exercised  by  the
State and property expropriated. No abstract principles could be laid.  Each
case must be considered in the light of  its  own  facts  and  setting.  The
phrase ‘deprivation of the property of a person’ must equally be  considered
in the fact situation of a case. Deprivation  connotes  different  concepts.
Article 300-A gets attracted to  an  acquisition  or  taking  possession  of
private  property,  by  necessary  implication  for   public   purpose,   in
accordance with the law made by Parliament or a State  Legislature,  a  rule
or a statutory order having force of law. It is inherent in every  sovereign
State by exercising its power  of  eminent  domain  to  expropriate  private
property without owner’s consent. Prima facie, State would be the  judge  to
decide whether a purpose is a public purpose. But it is not the sole  judge.
This will be subject to judicial review and it is the duty of the  court  to
determine whether a particular purpose is a public purpose  or  not.  Public
interest has always been considered to be an essential ingredient of  public
purpose. But every public purpose does not  fall  under  Article  300-A  nor
every exercise of eminent domain an acquisition or taking  possession  under
Article  300-A.  Generally  speaking  preservation  of  public   health   or
prevention of damage to life  and  property  are  considered  to  be  public
purposes. Yet deprivation of property for any such purpose would not  amount
to acquisition or possession taken under  Article  300-A.  It  would  be  by
exercise of the police power of the State. In  other  words,  Article  300-A
only limits the powers of the State that no person shall be deprived of  his
property save by authority of law. There has to be  no  deprivation  without
any sanction of law. Deprivation by any other mode  is  not  acquisition  or
taking possession under Article 300-A. In other words, if there is  no  law,
there is no deprivation. Acquisition of  mines,  minerals  and  quarries  is
deprivation under Article 300-A.”
Rajendra Babu, J. (as the learned Chief Justice then was) in Sri  Krishnapur
Mutt v. N. Vijayendra Shetty (1992) 3 Kar LJ 326 observed: (Kar LJ  p.  329,
para 8)
“8. The restrictions imposed in the planning law though in  public  interest
should be strictly interpreted because they make an inroad into  the  rights
of a private person to carry on his business by construction of  a  suitable
building for the purpose and incidentally may affect his  fundamental  right
if too widely interpreted.”

      We have applied the rule of strict construction and found  the  action
is permissible under the provisions of section 305 as  the  Corporation  has
implemented the provisions of development plan, it  is  bound  to  implement
the development plan  prepared  after  following  the  exhaustive  procedure
consistent with the principles of natural justice,  and  is  in  the  larger
public interest.

62.   Learned counsel has also referred to the decision  of  this  Court  in
Chairman, Indore Vikas Pradhikaran (supra) wherein  a  question  arose  with
respect to the declaration made under  section  50(2)  of  the  Act  on  the
ground that unless a development plan for an area  is  published  and  comes
into operation, a draft  development  scheme  cannot  be  published  by  the
Development Authority under section 50(2) of the Act  of  1973.  This  Court
observed that the area in question with respect  to  which  the  scheme  had
been framed under section 50 had not been properly included in the  area  of
operation of the development authority under the Act of  1973  as  such  the
action taken by way of its intention to frame  a  town  planning  scheme  or
otherwise was wholly illegal,  without  jurisdiction  and  a  nullity.  This
Court also held that  a  draft  development  plan  which  has  not  attained
finality cannot be held to be determinative of the  rights  and  obligations
of the parties and can never be implemented and end use of the land  is  not
frozen until a final sanction plan comes into force. This  Court  also  held
that the power to freeze the land use under section 50(1) read with  section
53 of the Act of 1973 can only  be  validly  exercised  for  implementing  a
final sanctioned development plan.  In  the  instant  cases  it  is  not  in
dispute that there is a final sanctioned  development  plan  for  Bhopal  as
well as for Indore and pursuant thereto action has been taken under  section
305. In Indore the town development scheme exists and  for  Bhopal,  absence
of town development scheme under sections 49 and 50 has not been pleaded  by
the appellants. This Court in Chairman,  Indore  Vikas  Pradhikaran  (supra)
has laid down thus :
“33. The Act  envisages  the  following  steps  which  are  required  to  be
complied with:
(a) Constitution of a planning area by notification under Section 13.
(b) Compliance with the detailed procedure set out under Sections 14 to  19,
leading to sanction of the development  plan  under  Section  19.  The  said
procedure envisages compliance with principles of natural justice.
(c) Section 38 provides for establishment of a town and country  development
authority, by notification “for such  areas  as  may  be  specified  in  the
notification”. Under sub-section (2) thereof, duties  of  implementation  of
the development plan and preparation of the  town  development  scheme  have
been cast on the town and country development authority.
(d) The town development  scheme  is  to  be  prepared  upon  following  the
procedure set out under Section 50. The said scheme  can  be  prepared  only
when there exists a  development  plan,  prepared  in  accordance  with  the
procedure prescribed under the Act as envisaged under Sections 14 to 19  and
after notification under Section 38(1). In this regard, reference  may  also
be made to Section 2(u) of the  Act,  which  describes  a  town  development
scheme to mean a scheme prepared for implementation  of  the  provisions  of
the development plan.

41. When a draft development plan is prepared, the same is subject to  grant
of approval and/or modification thereof. We will deal  with  the  matter  in
some detail a little later but at this stage, we may notice that end use  of
the land is not frozen until a final sanction plan comes into being. A  town
planning scheme, as would appear from its definition  contained  in  Section
2(4) of the Act, is prepared only for the purpose  of  implementation  of  a
development plan. Yet again, we would deal with the question as  to  whether
the same would bring within its sweep the draft  development  plan  or  only
final development plan a little later, but it may be  noticed  that  once  a
valid town planning scheme comes into  force,  indisputably,  there  may  be
freezing of land use as also freezing of  development  and,  thus,  a  total
embargo is placed except in  such  cases  where  the  Director  had  granted
permission. Section 53 of the Act,  however,  in  the  event  a  valid  town
planning scheme is made, places a total embargo both on  land  use  as  also
the development. Even the Director is denuded of  its  power  to  issue  any
further permission. Existing land use,  draft  development  plan  and  final
development plan envisage two-stage exercise. In drafting  or  finalising  a
zonal plan, a similar exercise is undertaken. In making a  town  development
scheme, however, the process undertaken is a three-stage one inasmuch as  an
intention therefor is declared which entails serious  consequences  and,  as
noticed hereinbefore, by reason thereof, a total embargo is imposed both  on
land use as also the development. For the said purpose, a time-limit  within
which a draft town planning scheme has to be finalised is provided  but  the
same can be subject to modification by the State which ordinarily should  be
with a view to deal with the same in line with the final development plan.

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.

73. Once a final plan comes into force,  steps  inter  alia  are  taken  for
acquisition of the property. Section 34 of the Act  takes  care  of  such  a
contingency. The town development scheme, as envisaged under Section  49  of
the Act, specifically does it. Out of nine clauses contained in Section  49,
six relate to acquisition of  land  for  different  purposes.  Clauses  (v),
(viii) and (ix) only refer to undertaking of such buildings or  construction
of work  by  the  authority  itself,  reconstructions  for  the  purpose  of
buildings, roads, drains, sewage lines and the  similar  amenities  and  any
other  work  of  a  nature  such  as   would   bring   about   environmental
improvements.

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  finalised  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.

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.”

      This Court has emphasized  that  it  is  the  development  plan  which
determines the manner of usage of the land at the micro  level.  This  Court
has also emphasized that development plan to be implemented should be  final
development plan. The very  scheme  of  the  Act  postulates  that  in  case
development plan has been prepared, may require for  such  development  plan
micro planning wherever it is necessary  and  there  may  be  certain  areas
where no micro planning is contemplated in view of the  specific  provisions
contained in the development plan such as width of the road etc.  which  has
been determined finally. Once the final development plan  does  not  require
micro exercise and is in force, it is not open to the development  authority
to redo that exercise under section 49/50  while  preparing  the  scheme  at
micro level as it is not authorized to alter/modify  the said  provision  of
the development plan as it has no power to alter or modify the width of  the
road or building line as fixed in the  development  plan  and  is  bound  to
carry out the same. For such matters which do  not  require  micro-planning,
it would not be necessary to undertake exercise  of  section  49  read  with
section 50, publish a draft plan, under section 50(3) invite objections  and
suggestions and to decide the same  issue  of  development  plan  once  over
again which is  final,  conclusive  and  binding  and  requires  no  further
planning. If any modification of development plan  is  permitted,  it  would
defeat the mandate of sections 19(5) and  25 of the  Act  of  1973,  and  in
case  the  authorities  cannot  alter  the  width  of  the  road  or  modify
development plan, it would be a futile exercise and exercise in futility  is
not  envisaged  by  law.  The  decision  of  this  Court  in  Indore   Vikas
Pradhikaran (supra) reinforces and buttresses our conclusion that  it  is  a
development plan which has to prevail.
63.   The appellants have also placed reliance on Rajendra Shankar Shukla  &
Ors. v. State of Chhattisgarh  & Ors. (2015) 10 SCC 400 to contend that  the
Act of 1973 provides for arrangement, the development plan  is  an  umbrella
which encompasses within its fold a zonal plan which is implemented  through
Town Development Scheme. This Court has laid down thus :
“65. As per the factual averments of this case, Respondent  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  1973  Act,  the  development  plan/Raipur  Master  Plan
(Revised) 2021 that is prevailing, Respondent 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 1973 Act and we hold that KVTDS is ultra vires the 1973 Act.
          Answer to Point (iii)
66. Though we have answered Point  (ii)  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 2 RDA, and therefore, the acquisition proceedings of the land  of
the appellants cannot be allowed to sustain.
67. The town development scheme is always subservient to the master plan  as
well as the zonal plan, as provided under Section 17 of the 1973 Act,  which
reads as under:
“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 (19  of
1995) in which the planning area is situated….”
68. Master plan falls within the category of broad development plans and  is
prepared 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:
“21. Contents of zoning plan.—The zoning plan shall enlarge the  details  of
the land use as indicated in the development plan….”
                                                         (emphasis supplied)
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.
69. 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.
70. 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.

74. In the case in hand, KVTDS has been prepared in the absence of  a  zonal
plan. It is not possible to define the utilisation 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  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 1 State Government under Section 20  of  the  1973  Act.  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.
75. 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,
Ms 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”.


      There is no dispute with the law laid down  by  this  Court  and  town
planning scheme has  to  be  subservient  to  development  plan/zonal  plan.
Development plan which does not require micro planning is  binding  and  can
be implemented.
In re : Vires of sections 305 and 306 of the Act of 1956 :
64.   It was submitted that exercising  the  power  for  acquiring  land  by
following  the  procedure  under  sections  305   and   306   suffers   from
arbitrariness and thus violative of Articles 14 and 19 of  the  Constitution
of India. Reliance has been placed on the decision in  Suraj  Mall  Mohta  &
Co. v. A.V. Visvanatha Sastri & Anr. AIR 1954 SC 545. In the said  case  the
provision  of  section  5(4)  of  the  Taxation  on  Income   (Investigation
Commission) Act, 1947 was struck down on the ground of  being  violative  of
Article 14. Submission advanced was that it  gave  arbitrary  power  to  the
Commission to pick and choose and the clause was  highly  discriminatory  in
character inasmuch as any evasion whether substantial or insignificant  came
within its ambit as well as within the purview of section 34 of  the  Indian
Income Tax Act. This Court has observed that it is  open  to  the  State  to
make the classification to determine who should be regarded as a  class  for
the purpose of legislation and in relation to a law enacted on a  particular
subject but the classification to be permissible must be based on some  real
and substantial distinction bearing a just and reasonable  relation  to  the
objects sought to be attained and it cannot be made arbitrarily and  without
any substantial basis. In our opinion, the provision of section 305 when  it
deals with the public streets and removal of  building  falling  in  regular
line  is  a  wholesome  one  and  being  a  special  provision,   based   on
classification made for the purpose of  section  305  as  to  public  street
cannot be said to be suffering from vice or discrimination and violative  of
Article 14. The procedure under section 305 of the Act  of  1956  cannot  be
said to be onerous or harsh  and  it  cannot  be  tested  on  the  anvil  of
provisions of section 78/78 of the Act of 1956 or section 56 of the  Act  of
1973.
65.   Reliance has also been placed on the decision  in  Nagpur  Improvement
Trust & Anr. v. Vithal Rao & Ors. (1973)  1  SCC  500.  To  contend  on  the
strength of the averment made in  amendment  application  filed  before  the
High Court in W.P. No.5682/2016 that another agency is  acquiring  the  land
within 1 km. periphery of the site of the BRTS  corridor  by  following  the
procedure under the provisions of the Act of 2013. Thus the  appellants  are
being discriminated. Para 5.22 of the amendment application,  Annexure  P-17
of SLP [C] Nos.14493-96/2016, has been relied on  by  the  learned  counsel.
What has been stated is extracted hereunder from the aforesaid pleadings :
       “5.22  That  from  the  above,  therefore  the  public  notice  dated
22.04.2016 (received on 24.04.2016) by the petitioners is also  bad  in  law
and deserves to be quashed by this Hon’ble Court. It is  further  stated  on
affidavit  that  within  a  1  kilometer  periphery  of  the  lands  of  the
petitioner, the Capital  Project  Administration  (CPA)  is  constructing  a
coordination  link  road  from  the  area  Bawariakala,  E-8  extension   to
Hoshangabad Road, which area is also falling within the municipal limits  of
Bhopal Municipal Corporation. There the land owners  would  be  entitled  to
compensation as per the new regime under the newly  enacted  Right  To  Fair
Compensation And Land Acquisition Act 2013.  However  in  the  case  of  the
petitioners, they would be grossly prejudiced, as there is no indication  as
to how much compensation they would receive u/s  305,  306  of  the  Act  of
1956. Therefore the regime of Act of 1956 is  completely  discriminatory  in
nature.”

      From the aforesaid pleadings it cannot be  made  out  that  the  other
area where acquisition is made, is a case of public  street  under  sections
305 and 306, it relates to construction of link road by the Capital  Project
Administration where acquisition will be required. It is not pleaded in  the
aforesaid paragraph that the other area is falling in the  regular  line  of
public street as per development plan, in the absence of such pleadings,  it
is not open to the appellant to raise the plea  of  discrimination  at  all.
Even otherwise we have found provisions of section 305/306 to be fair,  just
and reasonable and merely because for other places some other procedure  has
been resorted to, cannot be a ground  to  urge  discrimination.  Hence,  the
submission based upon the dictum of this Court in Nagpur  Improvement  Trust
(supra) has no legs to stand.
66.   Reliance has  also  been  placed  on  the  decision  in  P.  Vajravelu
Mudaliar v. The Special Deputy Collector, West Madras AIR 1965 SC  1017.  In
the said decision this Court came to the conclusion that  on  a  comparative
study of Land Acquisition Act, 1894 and Land Acquisition (Madras  Amendment)
Act, it was clear that if it becomes clear that if a land is acquired for  a
housing scheme under the Amending Act, the  claimant  gets  a  lesser  value
than he would get for the same land or a similar land if it is acquired  for
a public purpose like hospital under the Principal Act.  The  classification
thus sought to be made  by  the  Land  Acquisition  (Madras  Amendment)  Act
between persons whose lands are acquired for other public  purposes  has  no
reasonable relation to the object sought to be  achieved.  Thus  this  Court
has held that under the Amending Act, discrimination cannot be sustained  on
the principle of reasonable classification. The ratio has no application  to
the instant cases as the classification is found to  be  quite  appropriate.
Apart from that after  the  abolition  of  ‘the  right  to  property’  as  a
fundamental right, the provisions are quite  consistent  with  section  300A
and reasonable compensation is paid under sections 305 and 306 which if  not
acceptable, the remedy of arbitration and  approaching  the  District  Court
under section 387 is available to seek the compensation which has to  be  on
the basis of procedure prescribed in  the  Land  Acquisition  Act.  No  such
impermissible classification is made in the instant  case  as  made  by  the
Madras Amendment Act which was struck down by this Court.
67.   It was further submitted that sections 305 and 306 of the Act of  1956
fail  to  provide  any  rational,   reasonable,   relevant   principle   for
determination of compensation for deprivation of property of  the  landowner
and  therefore  violative  of  Articles  14,  19,  21  and  300-A   of   the
Constitution of India and they are liable to be struck  down.  Reliance  has
been placed  on  a  Constitution  Bench  decision  of  this  Court  in  K.T.
Plantation Pvt. Ltd. & Anr. v. State of  Karnataka  (2011)  9  SCC  1.  This
Court has considered the various questions and  interpreted  the  provisions
of Articles 300-A, 14, 19, 21, 30(1-A) and other provisions  and  laid  down
the judicial scope of interference of a statute depriving a  person  of  his
property. It has been  laid  down  that  though  right  to  compensation  is
inbuilt in Article 300A of the Constitution of India, the obligation to  pay
compensation would depend upon the terms of the statute and the  legislative
policy. Statute providing for no compensation, nil compensation or  illusory
compensation must be just, fair and reasonable  in  terms  of  Articles  14,
19(1)(g), 21, 26(b), 30(1-A) and other provisions of the Constitution.  This
Court  also  considered  distinction  between  no   compensation   and   nil
compensation and pointed out onus to  establish  validity  of  law  in  such
cases lies on the State. Court  cannot  however  based  merely  on  its  own
opinion, strike down such a law or statutory provision. It was further  held
that the right to compensation cannot be read into Schedule  VII  List  III,
Entry 42 which is not ambiguous at all. The statutes depriving a  person  of
his property are subject to judicial review by constitutional courts on  the
grounds laid down by this Court. It was held that  the  concerned  Karnataka
State Act having received the Presidential assent  under  Article  31-A  was
immune from challenge under Articles 14 and 19. This Court  also  laid  down
that when the validity of acquisition of  property  is  questioned,  grounds
for challenge to a statute enacted to acquire property but  the  statute  is
not protected by Articles 31-A, 31-B and 31-C of the Constitution of  India,
after deletion of Article 19(1)(f), such  statutes  can  be  challenged  for
violation of Article 14,  violation  of  basic  structure  of  Constitution,
violation of Rule of Law which amounts to violation of  basic  structure  or
for lack of legislative competence. This Court has also laid down that  when
validity of acquisition of property is under a statute which is  guarded  by
protective umbrella of Articles 31A, 31B and 31C, such  statutes  can  still
be challenged under Article 32 or 226 for violation of rule of  law  if  the
violation is of serious nature  which  undermines  basic  structure  of  the
Constitution, violation of the basic structure of the  Constitution  or  for
lack of legislative  competence. In I.R. Coelho (Dead) by LRs. V.  State  of
T.N. (2007) 2 SCC 1,  this  Court  laid  down  that  statutes  protected  by
Articles 31A, 31B and 31C would be as part of  basic  structure  though  not
Article 14 or Article 19 simpliciter. In K.T. Plantation (P)  Ltd.  (supra),
this Court has considered the question thus :
“189. Requirement of public purpose, for deprivation  of  a  person  of  his
property under Article 300-A, is a precondition, but no compensation or  nil
compensation or its illusiveness  has  to  be  justified  by  the  State  on
judicially justiciable  standards.  Measures  designed  to  achieve  greater
social justice, may call for lesser compensation and such  a  limitation  by
itself  will  not  make   legislation   invalid   or   unconstitutional   or
confiscatory. In other  words,  the  right  to  claim  compensation  or  the
obligation to pay, though not expressly included in Article  300-A,  it  can
be inferred in that article and it is for the State to justify its stand  on
justifiable grounds which may depend upon  the  legislative  policy,  object
and purpose of the statute and host of other factors.
190. Article 300-A would be  equally  violated  if  the  provisions  of  law
authorising deprivation of property  have  not  been  complied  with.  While
enacting Article 300-A Parliament  has  only  borrowed  Article  31(1)  (the
“Rule of Law” doctrine) and  not  Article  31(2)  (which  had  embodied  the
doctrine of  eminent  domain).  Article  300-A  enables  the  State  to  put
restrictions  on  the  right  to  property  by  law.  That  law  has  to  be
reasonable. It must comply with other provisions of  the  Constitution.  The
limitation or restriction should not be arbitrary or excessive  or  what  is
beyond what is required in public interest. The  limitation  or  restriction
must not be disproportionate to the situation or excessive.
191. The legislation providing for deprivation  of  property  under  Article
300-A must be  “just,  fair  and  reasonable”  as  understood  in  terms  of
Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will  have
to examine the scheme of the impugned Act, its object, purpose as  also  the
question whether payment of nil compensation or nominal  compensation  would
make the impugned law unjust, unfair  or  unreasonable  in  terms  of  other
provisions of the Constitution as indicated above.
193. Right to property no more  remains  an  overarching  guarantee  in  our
Constitution, then is it the law, that such a legislation enacted under  the
authority of law as provided in  Article  300-A  is  immune  from  challenge
before a constitutional court for  violation  of  Articles  14,  21  or  the
overarching  principle  of  the  rule  of  law,  a  basic  feature  of   our
Constitution, especially when such a right is not specifically  incorporated
in Article 300-A, unlike Article 30(1-A) and the second proviso  to  Article
31-A(1).
194*. Article 31-A was inserted by the First Amendment Act, 1951 to  protect
the zamindari abolition laws and also the other  types  of  social,  welfare
and  regulatory  legislations  affecting  private  property.  The  right  to
challenge  laws  enacted  in  respect  of  subject-matter  enumerated  under
Article 31-A(1)(a) to (g) on the ground of violation of Article 14 was  also
constitutionally excluded.

198. Article 300-A, unlike Articles 31-A(1)  and  31-C,  has  not  made  the
legislation depriving a person of his property immune from challenge on  the
ground of violation of Article 14 or  Article  21  of  the  Constitution  of
India, but let us first examine whether Article 21 as such is  available  to
challenge a statute providing for no or illusory  compensation  and,  hence,
expropriatory.

200. The question of applicability of  Article  21  to  the  laws  protected
under Article 31-C also came up  for  consideration  before  this  Court  in
State of Maharashtra  v.  Basantibai  Mohanlal  Khetan  (1986)  2  SCC  516,
wherein this Court held that Article  21  essentially  deals  with  personal
liberty and has little to do with the right to  own  property  as  such.  Of
course, the Court in that case was not concerned with the  question  whether
the deprivation of property would lead to deprivation of life or liberty  or
livelihood, but was dealing  with  a  case,  where  land  was  acquired  for
improving living conditions of a large number  of  people.  The  Court  held
that the land ceiling laws, laws  providing  for  acquisition  of  land  for
providing housing accommodation, laws imposing ceiling  on  urban  property,
etc. cannot be struck down by invoking Article 21 of the Constitution.”

      It is apparent from the aforesaid dictum  that  Article  300A  enables
the State to put restrictions on the right by law but the  same  should  not
be arbitrary or excessive or beyond what is  required  in  public  interest.
The imposition of restriction must not be disproportionate  to  a  situation
or statute. Legislation providing for deprivation of property under  Article
300A must be just, fair  and  reasonable.  Thus,  it  cannot  be  said  that
illusory compensation is provided under section 306 read with  section  387.
The decision renders  no help  to  the  cause  espoused  on  behalf  of  the
appellants and on a closer  scrutiny,  rather  counters  it.  Based  on  the
aforesaid principles we find no malady in the provisions in  question  which
may be required to be cured.
68.   Reliance has also been placed on the decision of this Court  in  Rajiv
Sarin & Anr. v. State of Uttarakhand & Ors. (2011) 8 SCC 708 in  which  this
Court has laid down that  adequacy  of  compensation  cannot  be  questioned
before a court of law but at the same time compensation cannot  be  illusory
and that there cannot be a situation of no compensation to a person  who  is
deprived of his property. The  Court  held  that  awarding  no  compensation
attracts the vice of illegal deprivation of property. This  Court  has  laid
down that when the State exercises power of acquisition of private  property
it can take possession of the private property for public purpose.  It  does
not require payment of market value or indemnification to the owner  of  the
property expropriated. Payment of market value in lieu of acquired  property
is not a condition precedent or sine qua non for  acquisition.  Adequacy  of
compensation cannot be questioned in a court of law but  at  the  same  time
compensation cannot be illusory. In Rajiv  Sarin  (supra),  this  Court  has
laid down thus :
“78. When the  State  exercises  the  power  of  acquisition  of  a  private
property thereby depriving the private person of the property, provision  is
generally made in the statute to pay compensation to be fixed or  determined
according to the criteria laid down  in  the  statute  itself.  It  must  be
understood in this context that the acquisition of property by the State  in
furtherance of the directive principles of State  policy  is  to  distribute
the material resources of the community  including  acquisition  and  taking
possession of private property for  public  purpose.  It  does  not  require
payment of market value or indemnification to  the  owner  of  the  property
expropriated. Payment of market value in lieu of acquired property is not  a
condition precedent or sine qua non for  acquisition.  It  must  be  clearly
understood that the acquisition and payment of amount are part of  the  same
scheme and they cannot be  separated.  It  is  true  that  the  adequacy  of
compensation cannot be questioned in a court of law, but at  the  same  time
the compensation cannot be illusory.

82. A distinction and difference has been drawn between the concept  of  “no
compensation” and the concept of “nil compensation”. As mandated by  Article
300-A, a person can be deprived of his property but  in  a  just,  fair  and
reasonable  manner.  In  an  appropriate  case  the  court  may  find   “nil
compensation” also justified and fair if it is  found  that  the  State  has
undertaken to take over the liability and also has assured to compensate  in
a just and fair manner. But the situation would be totally different  if  it
is a case of “no compensation” at all.”

      Instant is not a case of no compensation. It cannot be said  to  be  a
case of illusory compensation. In distinction  to  these  terms  the  phrase
used in sections 305 and 306 is ‘reasonable compensation’.  This  Court  has
laid  down  in  Rajendra  Shankar  Shukla  (supra)  itself  that  the   Land
Acquisition Act envisages payment of just and  reasonable  compensation  and
qualifies the test of Article 300A.
69.   Reliance has also been placed on Rustom Cavasjee Cooper  v.  Union  of
India (1970) 1 SCC 248 to contend that the law must specifically either  fix
the amount  of  compensation  payable  or  must  lay  down  the  principle/s
regarding the same. The Legislature cannot be treated as conclusive and  its
objective can always be tested on such principle. The principal  must  award
to the owner the equivalent of the property he  is  deprived  for  with  its
existing  advantages  and  potentialities,  including  its  benefit  in  the
present as well as in future.  The money value on the date of  expropriation
of property must be considered while judging the validity of  the  concerned
enactment. The relevant provisions contained in sections 305,  306  and  387
of the Act of  1956  cannot  be  said  to  be  violative  of  the  aforesaid
principles laid down by this Court in the said decision  as  the  amount  of
compensation payable has been specified and  the  principles  regarding  the
same have been fairly culled out.
70.   The provisions of the Act of 1956 cannot be said to  be  violative  of
the principles or dictum laid down by this Court in the aforesaid  decisions
rather qualify to them and cannot be said to be  violative  of  Articles  14
and 19. The provisions of sections 305 and 306 cannot be read in  isolation.
It has to be read with wholesome  provision  of  section  387  and  what  is
contemplated under section 387 has to  be  taken  to  be  the  principle  of
reasonable compensation even in sections 305 and 306. Monetary value has  to
be worked out and it can be balanced with FAR in appropriate cases which  is
quite reasonable method of arriving at compensation as discussed  hereafter.

71.   It  was  submitted  by  the  respondents  that  with  respect  to  the
principle of determination of compensation, a  Constitution  Bench  of  this
Court has considered more or less similar provision  contained  in  sections
212 and 216 of the Bombay Provincial Municipal  Corporation  Act,  1949.  It
was found to have qualified to section 299 of the Government  of  India  Act
in Municipal Corporation of the  City  of  Ahmedabad  &  Ors.  v.  State  of
Gujarat & Ors. (1972) 1 SCC 802. The question  of  payment  of  compensation
for acquiring the land lying within  line  of  public  street  came  up  for
consideration. A question arose whether Corporation  is  liable  to  provide
compensation. First proviso to section 216(1) which  provided  for  increase
or decrease in value in the case of set-back and adjustment of  compensation
accordingly. Question also came up for consideration  whether  principle  of
willing seller and willing buyer is applicable  in  such  a  situation,  and
what is the meaning of full indemnity in accordance with the norms,  and  to
what extent such provisions are justiciable ? Section 210 of  the  said  Act
contains a similar provision with respect  to  removal  of  project  in  the
regular line of a public street. For the loss caused to the owner  provision
was made for  compensation  under  section  216  of  the  Bombay  Provincial
Municipal Corporation Act, 1949, same is extracted hereunder:
“7.  For  the  loss  thus  caused  to  the  owner  by  the  action  of   the
Commissioner, provision was made for payment of compensation  under  Section
216 which is as follows:
“216.(1) Compensation shall be paid by the Commissioner to the owner of  any
building or land required for a public street under Sections 211,  212,  213
or 214 for any loss which such owner  may  sustain  in  consequence  of  his
building or land being so acquired and for  any  expense  incurred  by  such
owner in consequence of the order made by the Commissioner:
Provided that —
(i) any increase or decrease in the value of the remainder of  the  property
of which the building or land so acquired formed part likely to accrue  from
the set-back to  the  regular  line  of  the  street  shall  be  taken  into
consideration  and  allowed  for  in  determining   the   amount   of   such
compensation;
(ii) if any such increase in value exceeds the amount of loss  sustained  or
expenses incurred by the said owner, the Commissioner may recover from  such
owner half the amount of such excess as a betterment charge.”

       Other  provisions  of  sections  389,  390  and  391  of  the  Bombay
Provincial Municipal Corporation Act, 1949 also came  up  for  consideration
which are contained in para 8 of the report,  same are  extracted  hereunder
:
      “8. Chapter XXIV of the Act deals with  the  subject  of  compensation
generally. Section 389(1) provides as follows:
“389. (1) In the exercise of the powers under the  following  provisions  of
this Act by the Commissioner or any other municipal officer  or  servant  or
any other person authorised by or under this Act to  execute  any  work,  as
little damage as can be shall be  done  and  compensation  assessed  in  the
manner prescribed by or under this Act shall  be  paid  to  any  person  who
sustains damage in consequence of the exercise of such powers, namely,.…
(f) acquiring any building or land required for  a  public  street  —  under
Section 216.”
Section 390 is as follows:
“Subject to the provisions of this  Act,  the  Commissioner  or  such  other
officer as may be authorised by him in  this  behalf  shall,  after  holding
such inquiry as he thinks fit, determine the amount of  compensation  to  be
paid under Section 389.”
This determination, however, is not final because two appeals are  provided.
Under Section 391 it is provided as under:
“Any person aggrieved by the decision of the Commissioner or  other  officer
under Section 390 may within a period of one month, appeal to the  Judge  in
accordance with the provisions of Chapter XXVI.”
“The Judge” means under Section 2, clause (29) the Judge  of  the  Court  of
Small Causes in the City of Ahmedabad. Section 411  provides  for  a  second
appeal to the District Court. It says “An appeal shall lie to  the  District
Court (aa) from a decision of the Judge  in  an  appeal  under  Section  391
against an assessment of compensation under clause (f)  of  sub-section  (1)
of Section 389”. As regards the procedure  to  be  followed  in  respect  of
these appeals, provision is made in Section 434 sub-section (1)  whereof  is
“Save as expressly provided by this Chapter (Chapter  XXVI)  the  provisions
of the Code of Civil Procedure, 1908,  relating  to  appeals  from  original
decrees shall apply  to  appeals  to  the  Judge  from  the  orders  of  the
Commissioner and relating to appeals from appellate decrees shall  apply  to
appeals to the District Court”.

      This Court on due consideration of the aforesaid provisions  has  held
that the Commissioner is  required  to  determine  the  compensation  first,
thereafter if the owner is satisfied he can  approach  the  Court  of  Small
Causes or the District Judge. The provisions of section 212 were  questioned
on the ground that they were violative of section 299 of the  Government  of
India Act, 1935. This Court has laid down that sections 216 and 389  provide
for indemnification for the loss caused to be  made  to  the  owner  of  the
property or other interests affected by the exercise of power under  section
212. This Court has laid down thus :
“13. We are  in  agreement  with  the  view  of  the  High  Court  that  the
Corporations Act does provide  for  the  payment  of  compensation  for  the
property acquired. We have only to refer to Section 216 and Section  389  of
the  Act  for  this  purpose.  Section  216(1)  clearly   lays   down   that
compensation shall be paid by the Commissioner to the owner of any  building
or land required for public street under Sections 211, 212, 213 and 214  for
any loss which such owner may sustain in  consequence  of  his  building  or
land being so acquired, and for  any  expense  incurred  by  such  owner  in
consequence of the order made  by  the  Commissioner.  Then  Section  389(1)
provides that compensation assessed in the manner  prescribed  by  or  under
the Act shall be paid to any person who sustains damage  in  consequence  of
the exercise of such power, namely, “(f)  acquiring  any  building  or  land
required for a public street under  Section  216”.  The  two  sections  read
together make it clear that full indemnification in terms of money  for  the
loss caused is to be made to the owner of the property  or  other  interests
affected by reason of the exercise of power under  Section  212.  Under  the
latter section what is acquired for the purposes of the street is  the  land
of the owner which falls within the regular  line  of  the  street.  Several
provisions are made in Chapter XIV for the widening of  streets  within  the
limits of the Corporation. With the enormous  increase  in  traffic  in  the
more  congested  parts  of  a  growing  City,  Municipal   authorities   are
constantly under pressure to widen  the  streets  and  one  of  the  several
methods prescribed in Chapter XIV is contained in Section 212.  The  regular
line of the street as prescribed under Section 210 often passes through  the
properties of owners abutting on the streets and it is impossible  to  widen
the streets unless parts of lands belonging  to  the  owners  are  acquired.
Sometimes a building or a structure or part of it stands on  such  land  and
unless that portion of the building which falls within the line  is  removed
the acquisition of the land for the purpose of the street is  not  possible.
Therefore, in the first instance the section requires that the  Commissioner
shall issue a show-cause notice why the building or a part of  the  building
which falls within the line of street should not be pulled down with a  view
to release the land underneath for the purposes  of  the  street.  If  after
hearing the owner the Commissioner is of the opinion that  the  building  or
part thereof should be pulled down, he  must  obtain  the  approval  of  the
Standing Committee and then serve a notice on the owner  to  pull  down  the
offending building or part of building within a certain time. If  the  owner
cooperates, he will himself remove the offending structure and  release  the
land underneath it for being absorbed in the street. If  he  does  not,  the
Commissioner is empowered to pull down the offending structure at  the  cost
of the owner.  Then  sub-section  (4)  of  Section  212  provides  that  the
Commissioner shall at once take possession on behalf of the  Corporation  of
the portion of the land within the said line (line  of  the  public  street)
theretofore  occupied  by  the  said   building,   and   such   land   shall
thenceforward be deemed a part of the public street and shall vest  as  such
in the Corporation.  The  provisions  of  Section  212,  therefore,  clearly
declare that what is acquired under that section is the  land  lying  within
the line of the public street. The technical question as  to  whether  there
is acquisition of the building when the owner himself  does  not  pull  down
the offending part of the structure but the  Commissioner  does  it  at  the
owner’s expense is not necessary for the disposal of  the  question  whether
the Act provides for the payment of compensation. Since every kind  of  loss
is required to be compensated as a consequence of the order  passed  by  the
Commissioner under Section 216 of the Act,  the  question  whether  the  Act
need have provided for compensation as on the acquisition  of  the  building
or a part of the building which is pulled down under Section 212,  does  not
survive. The owner has to be compensated for every deprivation or loss  and,
therefore, prima facie it must be held that the  Corporations  Act  provides
for the payment of compensation for the property acquired.

14. It was, however, argued that the two  provisos  to  sub-section  (1)  of
Section 216 when given effect to may not only nullify  the  direction  given
in  sub-section  (1)  for  payment  of  compensation  but  also  in  certain
contingencies compel the owner to pay the Corporation something out  of  his
own pocket. When sub-section (1) provides for payment  of  compensation  for
the loss suffered it provides for adequate indemnification or  compensation.
When such compensation is reduced in the  contingencies  visualized  in  the
two provisos the  compensation,  it  was  submitted,  may  turn  out  to  be
illusory and  the  provision  for  the  payment  of  compensation  an  empty
assurance. Proviso (1) prescribes that “any  increase  or  decrease  in  the
value of the remainder of the property of which  the  building  or  land  so
acquired formed part likely to accrue from the set-back to the regular  line
of the  street  shall  be  taken  into  consideration  and  allowed  for  in
determining the amount of such compensation”. Proviso (ii) states  that  “if
any such increase in the value exceeds  the  amount  of  loss  sustained  or
expenses incurred by the said owner, the Commissioner may recover from  such
owner half the amount of such excess as a betterment  charge”.  Proviso  (i)
implies that the compensation payable under sub-section (1) is liable to  be
increased or reduced after the set-back. It envisages that by reason of  the
set-back or the widening of the street the  property  which  still  remained
with the owner is likely,  on  account  of  the  new  situation,  either  to
increase or decrease in value. If that happens, that is  to  be  taken  into
consideration and the amount determined under sub-section (1) will  have  to
be adjusted accordingly. The High Court is of the view that proviso  (1)  is
unobjectionable  as  it  is  a  principle  governing  the  determination  of
compensation and can be rightly employed  in  determining  the  compensation
for the property acquired. The High Court,  however,  was  not  inclined  to
hold that  proviso  (ii)  lays  down  any  principle  for  determination  of
compensation payable for the property acquired. It held, nevertheless,  that
the proviso was severable from the main part of  the  section  and  did  not
affect the provisions of sub-section (1) for payment of compensation. It  is
obvious that it is only in very rare contingencies  that  proviso  (ii)  may
become operative. But in considering the question  as  to  whether  the  Act
provides for compensation for acquisition or not, there can be little  doubt
that it does so in sub-section (1) of Section 216. That it may in some  rare
contingencies be very much reduced after taking into account  the  value  of
the benefit conferred on the owner by reason of the widening of  the  street
is no adequate reason to hold that the Act does not provide for  payment  of
compensation. As a matter of fact in an actual enquiry for  determining  the
amount of compensation to be paid the authority charged with the  duty  will
have to assess, in the first instance,  the  value  of  the  total  loss  or
deprivation actually suffered. The provisos may in some  rare  contingencies
go to reduce the amount so determined. Proviso (ii)  envisages  a  situation
where the widening of the street has so much benefited the  owner  that  the
value of the benefit even exceeds the actual loss suffered by him.  In  such
a case instead of getting any compensation for  the  loss  the  owner  might
have to pay out of his own pocket. As to  whether  proviso  (ii)  prescribes
any principle for determination of compensation or not is not  relevant  for
our present purpose. Both  the  provisos  come  into  play  only  after  the
compensation for loss is determined under sub-section  (1)  of  Section  216
and since that sub-section declares that full compensation must be paid  for
the loss or deprivation suffered by the owner it will be  incorrect  to  say
that the Act does not make provision for the  payment  of  compensation  for
the property acquired. We have, therefore, no hesitation  in  agreeing  with
the High Court that  the  Corporations  Act  provides  for  the  payment  of
compensation for the property acquired under Section 212.

15. The next question is whether the Act specifies the principles  on  which
and the manner in which compensation is to be  determined.  The  High  Court
has  been  of  the  view  that  neither  principles  for  determination   of
compensation nor the manner of its  determination  has  been  specified  and
that is the ground on which it has held that the provisions of  Section  212
are unconstitutional. We are unable to agree with that view. What  is  meant
by specification of principles for determining  compensation?  In  State  of
Gujarat v. Shri Shantilal Mangaldas and Ors.  (1969) 1 SCC 509,  this  Court
observed:
“Specification  of  principles  means  laying  down  general  guiding  rules
applicable to all persons or transactions governed thereby. Under  the  Land
Acquisition Act compensation is determined on the  basis  of  ‘market-value’
of the land on the date of the notification under Section 4(1) of that  Act.
That is a specification of principle.”
          At a later stage the Court again observed at p. 362:
“Rules enunciated by the courts for determining compensation for  compulsory
acquisition under the Land Acquisition Act vary according to the  nature  of
the land acquired. For properties  which  are  not  marketable  commodities,
such as lands, buildings and incorporeal rights, valuation has  to  be  made
on the application of different rules. Principle of  capitalisation  of  not
rent at the current market rate  on  guilt-edged  securities,  principle  of
reinstatement,  principle  of   determination   of   original   value   less
depreciation, determination of break-up value in certain types  of  property
which  have  out-grown  their  utility,  and  a  host  of  other   so-called
principles are  employed  for  determination  of  compensation  payable  for
acquisition of lands, houses, incorporeal rights, etc.”
The Land Acquisition Act makes market-value at a certain date the basis  for
the determination of compensation. But there is no one sure way of  applying
the principle. As is well known when set-back is imposed by the line of  the
street, the land actually acquired by the Corporation may be in  some  cases
a few square yards or  even  a  few  square  inches.  Then  again  the  land
acquired may be of no significant use to anybody except to  the  Corporation
as a part of the street. The land acquired may  be  wedge-shaped,  sometimes
irregular in contour and often shapeless. If  the  principle  of  a  willing
seller and a willing buyer is applied there can possibly  be  no  market  at
all for the property acquired. It is not suggested that  in  every  case  of
acquisition of land for the street  this  principle  will  break  down.  But
having regard to the fact that in the course  of  widening  the  street  the
Corporation may have to acquire very irregular, shapeless and  small  pieces
of land for the purposes of the street, a host of principles may have to  be
employed to determine the compensation. We asked  learned  counsel  for  the
respondents what one general principle of determination of  compensation  in
such cases could have been appropriately  specified.  We  did  not  get  any
satisfactory  reply.  It  appears  to  us  that  this  very  difficulty   in
specifying any known rule of compensation is responsible for the wording  of
Section 216 and Section 389 of the Act which, in our opinion, gets over  the
difficulty by providing full indemnification for  the  loss  or  deprivation
suffered by the owner of the building or other interests  in  the  property.
We have referred to the provisions with regard to appeals. The first  appeal
lies to the Judge of the Small Causes Courts and  a  second  appeal  to  the
District Judge. The involvement  of  civil  courts  in  finally  determining
compensation  imports  judicial  norms.  Since   full   indemnification   in
accordance with .judicial norms is the goal set by the Act  it  is  implicit
in such a provision that the rules for determination of  compensation  shall
be appropriate to the property acquired and such as will  achieve  the  goal
of full indemnity against  loss.  In  other  words,  the  Act  provides  for
compensation to be determined in accordance with judicial principles by  the
employment of appropriate methods of valuation so that  the  person  who  is
deprived of property  is  fully  indemnified  against  the  loss.  This,  by
itself,  in  our  opinion,  is  a  specification  of  a  principle  for  the
determination of compensation.
16. As regards the manner of determination of compensation, it  is  provided
in Section 390 of the Corporations Act. Under that section the  Commissioner
or such other officer as may be authorised by him shall  hold  such  enquiry
as he thinks fit and determine  the  amount  of  compensation  to  be  paid.
Either the Commissioner or an Officer authorised  by  him  has  to  hold  an
appropriate enquiry before determining the amount  of  compensation.  Since,
as already seen, there is an appeal from such determination to the Judge  of
the Small Causes Court  under  Section  391  and  a  second  appeal  to  the
District Court under Section 411 it is clear that the enquiry must  be  made
on broad judicial lines. Any arbitrary determination  is  bound  to  be  set
aside in appeal because the Judges in appeal will be  chiefly  concerned  to
see  whether  the  enquiry  is  made  in  accordance  with  normal  judicial
procedures for  evaluating  the  loss  by  the  application  of  methods  of
valuation appropriate to the particular acquisition before  them.  Since  no
limitations are placed on the powers of the Appellate Judges in  determining
the loss in  a  just  and  appropriate  manner,  it  is  expected  that  the
Commissioner or his authorised officer, who holds the enquiry in  the  first
instance, will be guided by principles which meet with the approval  of  the
Appellate  authorities.  In  our  opinion,  therefore,  the  manner  of  the
determination of compensation is also specified by the Act.
17. It is conceded before us that if this Court holds that the  Corporations
Act has provided for the payment of  compensation  and  also  specified  the
principle  on  which  and  the  manner  in  which  compensation  is  to   be
determined, it would not be possible to  say  that  the  Act  is  either  in
violation of the provisions of Section 299 of the Government of  India  Act,
1935 or Article 31 of the Constitution.”

      Thus with respect  to  the  compensation,  considering  more  or  less
similar provisions, a Constitution Bench of  this  Court  has  clearly  laid
down that as a matter of fact actual compensation has to  be  determined  in
the first instance, the value of the  total  loss  or  deprivation  actually
suffered. It has  to  be  balanced  with  the  other  relevant  aspects  for
compensation. The Act provides for payment of compensation. The view of  the
High Court that the principle for  determination  of  compensation  has  not
been specified under section 212 was also not agreed to by this Court.  This
Court has also held that the Land Acquisition Act makes market  value  at  a
certain date the basis for determination of compensation. But  there  is  no
one sure way of applying the principle. As is well known when  set  back  is
imposed by the line of  the  street,  the  land  actually  acquired  by  the
Corporation may be in some cases a few square yards or  even  a  few  square
inches. Then again the land  acquired  may  be  of  no  significant  use  to
anybody except for the Corporation  as  a  part  of  the  street.  The  land
acquired may  be  of  different  shapes,  irregular  in  contour  and  often
shapeless. If the principle of willing buyer and willing seller  is  applied
there can possibly be no market at  all  for  the  property  acquired.  This
Court opined that the owner  gets  full  indemnification  for  the  loss  or
deprivation suffered to the building or other  interests  in  the  property.
Involvement of  civil courts in  finally  determining  compensation  imports
judicial norms. There is no limitation on the power of the appellate  Judge.
Thus this Court held that the provisions contained in sections 212, 216  and
389 were not violative of the provisions of section 299  of  the  Government
of India Act, 1935 or Article 31 of the Constitution. The case was  remanded
by this Court to the High Court for examining infringement  of  Articles  14
and 19 after laying down the  aforesaid  propositions.  We  have  on  merits
found no violation of Articles 14 and 19 also in the instant cases.
72.   It was also submitted that the provisions of sections 305 and 306  are
required to be read down by incorporating the requirement of computation  of
compensation in the light of the principles laid down under the Act of  2013
while correlating it with the provisions of section 387 of the Act of  1956.
In view of the aforesaid dictum of this Court in  Municipal  Corporation  of
City of Ahmedabad (supra), we find no scope to entertain the submission  and
the reliance by the appellants on Yogendra Kumar Jaiswal v. State  of  Bihar
& Ors. (2016) 3 SCC 183 is of no avail.
73.   We find the principles laid down in sections  305,  306  and  387  are
quite reasonable. Reasonable compensation is payable by the Corporation  for
building or part thereof excluding the land under proviso to section  305(1)
and compensation for inclusion of land in public  street  is  payable  under
section 306(3) of the Act. We do not find any ground so as to read down  the
provisions. We refrain to comment upon the submission with  respect  to  the
granting additional FAR is not acceptable to some appellants, as it  is  not
the stage of dealing with compensation how the total indemnification  is  to
be made, whether FAR is acceptable to  the  appellants  or  not,  cannot  be
decided at this stage. It need not be decided at  this  stage  whether  they
have a right to leave the FAR and claim monetary  compensation  alone  which
is to be adjudged by the  concerned  authorities  within  the  pale  of  the
provisions contained in sections 305, 306 read with section 387 of  the  Act
of 1956. How the compensation is to be worked out at the appropriate  stage,
is  the  outcome  of  the  authorities  concerned  and  the   job   of   the
arbitrator/District Court, as  the  case  may  be.  The  appellants  are  at
liberty to raise the question with respect to the adequacy  of  compensation
and how the provision of section 387 has to be interpreted  and  what  would
be the just compensation  at  the  appropriate  stage  of  determination  of
compensation.
74.   Reliance has been placed on Laxmi  Devi  v.  State  of  Bihar  &  Ors.
(supra) and Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh  &  Ors.
(supra). The decision in  Laxmi  Devi  (supra)  is  based  on  the  specific
provision contained in  section  10A  of  the  Land  Acquisition  Act  which
requires compensation to be paid in a case where emergency clause  has  been
invoked. Collector is required to tender  payment  of  80%  of  compensation
before taking possession of the land. The  said  provision  is  not  at  all
attracted to the Act of 1956. As compensation is offered after  vesting,  is
quite reasonable procedure as envisaged by Article 300A of the  Constitution
of India, at which point of time it is offered would not make the  provision
confiscatory or repugnant. The compensation under section 305  or  306  read
with section 387 is on  the  happening  of  certain  exigency,  and  various
factors are taken into consideration for determination of compensation is  a
quite valid procedure. The  Corporation  cannot  be  compelled  as  per  the
special scheme of sections 305,  306  and  387  to  offer  the  compensation
before removal and vesting.  Reliance  on  the  decision  in  K.N.  Palsikar
(supra) so as to contend that the possession should be taken  after  payment
of compensation is totally misplaced. This  Court  has  simply  narrated  in
para 11 what was held by the High Court and the points  which  were  decided
were capsualised by this Court in para  12  of  the  report.  The  aforesaid
question was neither raised nor decided by this Court. This  Court  has  not
laid down any such proposition in K.N. Palsikar (supra), as canvassed.
75.   Reliance has also been placed on a decision of this Court in  Bhusawal
Municipal Council v. Nivrutti Ramchandra Phalak & Ors. (2015) 14 SCC 327  in
which this Court has considered right to property under  Article  300-A  and
held that such right is a human right and delayed  payment  of  compensation
leads to alienation of  section  of  society  against  the  system,  further
public purpose that is  setting  up  of  school,  is  no  justification  for
delaying/denying compensation  in  the  garb  of  undertaking  developmental
projects, without paying the compensation to the concerned landowner as  per
the statutory provisions. It was also submitted that  the  time  period  was
not prescribed within which compensation was to be  paid.  In  our  opinion,
the appellants have questioned the very notice,  initiation  of  action  and
when no time limit is fixed for payment of  compensation,  it  goes  without
saying that it has to be awarded within a ‘reasonable time’.  Law  envisages
speedy action without unreasonable delay and that is  what  is  expected  of
the concerned authorities, in respect of the obligation imposed on  them  to
be discharged.  Due  to  this,  the  provision  cannot  be  struck  down  as
arbitrary nor it can be said to be confiscatory in nature.  We  expect  that
the concerned Corporations would do well while offering the compensation  to
the appellants as expeditiously as possible that is sufficient to take  care
of their unfounded fear.
76.   In the case of Bhuwan Bhandari v. Indore  Municipal  Corporation  (SLP
(C) No.31541/2011) it was submitted that building  is  a  heritage  building
and there is bar on any kind of construction. The  boundary  wall  has  been
demolished by the Corporation and possession has been  taken  of  that  part
without compensation. The fact has been denied by the respondents  that  the
building has been declared as heritage one. It was  also  pointed  out  that
the Corporation for the purpose of widening of the road required removal  of
part of the boundary wall which is quite external to the main  building  and
is falling within the set back. It is clear that the main  building  is  not
being demolished. The submission is thus untenable.
77.   In view of the aforesaid  discussion,  the  appeals  being  devoid  of
merits are hereby dismissed. Parties  to  bear  their  respective  costs  as
incurred.


                                             ………………………..J.
                                             (Jagdish Singh Khehar)



New Delhi;                                   ……………………..J.
November 29, 2016.                                 (Arun Mishra)


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