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)
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)
