TaxTMI 
TaxTMI 
2015 (11) TMI 1289
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....tions of land (with some construction thereon) situated in the villages Dumartarai, Tikrapara, Boriya Khurd, Deopuri and Dunda of Raipur District in Chhattisgarh State. The respondent No.2-Raipur Development Authority (RDA) was established under Section 38(1) of the M.P. (C.G.) Nagar Thatha Gram Nivesh Adhiniyam, 1973 (for short 'the Act of 1973'). The KVTDS was planned by the respondent No.2 - RDA while discharging its functions under Section 38(2) of the Act of 1973. Though the KVTDS initially started as a small Town Development Scheme, it subsequently included the aforesaid five villages in Raipur within its Scheme. 4. As per the evidence on record produced before us, which are the written communications between the State Government, respondent No.2-RDA and the Director of Town and Country Planning, the KVTDS was initially planned and proposed for an area of 416.93 acres only. The Chief Executive Officer of the respondent No.2-RDA had issued public notification declaring its intention of coming up with an integrated township of 416.93 acres only. However, a month after the publication of said notification, the Board of respondent No.2-RDA, increased the area of the integrated T....
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....ed by the learned senior counsel for both the parties, we have broadly framed the following points which require our attention. The main legal issues which arise in this case are :- (1) Whether the KVTDS provide the authority to the Director of the respondent No.2-RDA, to formulate Town Development Scheme and is it in contravention to the 73rd and 74th Amendments to the Constitution of India? (2) Whether the Town Development Scheme in the present case is formulated as per the provision mentioned in Section 50(1) of the Act of 1973? Whether the subsequent alteration of land acquired, is in consonance with the provisions of the Act? (3) Whether the Town Development Scheme framed in the present case by the respondent No.2-RDA, in the absence of a zonal plan, is legal and valid? (4) Whether the Act of 1973 authorises the Town Planning and Development Authority to reconstitute the plots and change the land use apart from public utility? (5) Whether the proposal of the RDA to return 35% of the area of the land taken away from the land owners/appellants is legally permissible? (6) While planning the KVTDS, whether the respondents ensured compliance with EIA clearance procedure....
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.... state, in itself, has I conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to their enjoyment of a great portion of freedom and independence" (1 Report of the Select Committee of House of Commons. 1832 Vol. III p. 331 as quoted in T.N. Srivastava, Local 'Self' Governance and the Constitution, EPW July 27, 2002 at p. 3190- 3191) It is imperative to note here that the Constitution, initially did not vest with power on villages or communities as units. It rather vested power on individual as units of the society. It was proposed by Dr. B.R. Ambedkar, Chairman of the Drafting Committee of the Constitution, that the administration of India should not be carried out at village level since they are ignorant units of communities immune from the progress of the city and are also influenced by social biases and prejudices. With this biases and prejudices, it was apprehended that India, at the time during the drafting of the Constitution, were not suited to be ruled at village and panchayat level. On the other hand, Dr. Ambedkar proposed that there sho....
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....programs handed down to them by higher levels of government. They are on the other hand, expected to implement their own programs of economic development and social justice. The amendments further confer power upon the States in the form of Schedule XI to enlarge the domain of panchayats and to include functions with distributional consequences. This schedule includes key functions such as agriculture, drinking water, education, irrigation, poverty alleviation, primary, secondary and adult education, roads and rural electrification and maintenance of community assets. 12. It is further submitted by the learned senior counsel, Mr. Gopal Subramaniam that as per Article 243 G(1), the authority to prepare plans for economic development and social justice has been vested with the Gram Panchayat. Articles 243W and 243ZF have also been inserted to vest the local authority with the power to prepare plans for economic development. The 12th Schedule inserted into the Constitution specifically lists "urban planning including town planning" as an entry on which local authorities have full power under Article 243W of the Constitution. Further, Article 243ZD was inserted into the Constitution ....
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....petent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before the commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislative of that State." Similar provision exists for the Gram Panchayats under Article 243 N of the Constitution. 13. In the present case, the District Planning Committee (DPC) has been constituted under Section 3 of the Chhattisgarh Zila Yojna Samiti Act, 1995 (for short 'the Act of 1995') with an intention to democratize the town planning process to give effect to the legislative intendment. Section 7 of the Act of 1995 provides for functions of the DPC as has been prescribed by the Constitution. The Constitution under Article 243ZD directs setting up of a DPC to consolidate the plans prepared by Panchayats and Municipalities in the Districts and to prepare a draft development plan for district as a whole and the Director of every DPC shall forward such developmen....
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.... filling in of the seats. 4/5th of the total number of members of such committee need to be elected by and from amongst the elected members of the Panchayat at district level and of the municipalities in districts. The law made by the State Legislature may assign to such committees function relating to district planning. Article 243-ZD [3] obliges the DPC to prepare a draft development plan having regard to the matters of common interest between the Panchayats and Municipalities, including spatial planning, sharing of water and other physical and natural resources, integrated development of infrastructure and environment conservation. For that purpose, extent and type of resources needs to be looked into and such resources may include finance or other resources. The Legislature of State has been empowered to make law requiring the DPC to discharge functions relating to district planning as may be assigned to it. Under Sub-Article [4] the Chairperson of every District Planning Committee has to forward the development plan recommended by such committee to Government of State. Obviously, it is the draft development plan referred to in earlier part. Perusal of Eleventh Schedule shows 2....
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.... local self government can be conveniently exploited for larger area of two or more Panchayats or then Panchayats and municipalities at same cost or by saving public revenue. To facilitate such exploitation, the Parliament has thought it fit to create a District Planning Committee [DPC] which can consolidate the otherwise separate plans prepared by the Panchayats and Municipalities and prepare a draft development plan for entire District as a whole. It is, therefore, obvious that when such consolidation of development plans which are otherwise separate, becomes necessary or is found essential in larger public interest, DPC has been constituted to undertake that exercise. It has been given power to prepare a draft development plan for district as a whole also. Thus idea seems to be maximum utilization of resources at minimum costs by larger number of people spread over under different local bodies in a district. Article 243ZD does not confer any executable status on such plans and the same need to be sent to Government of the State. Thus, if development is restricted to area of only one authority and has no extraterritorial potential, the right of concerned local authority to procee....
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....formulated the Town Development Scheme without taking the opinion of the local committees which are constitutionally authorized to make suggestions in the matter of Town Development Scheme under the amended provisions of Section 50(5) of the Act of 1973. In addition to this, it has been contended by the learned senior counsel on behalf of the appellants that the present master plan, of which the development authority wants to implement, has been prepared by the Chief Executive Officer without regard to the District Planning Committee's power under the constitutional provisions which provisions are incorporated in the State Act. Therefore, it has been argued by the learned senior counsel that the revised master plan itself is opposed to the constitutional and statutory provisions and therefore, it is a nullity in the eyes of law. Following the same, the KVTDS framed and purported in compliance with the Raipur Master Plan (Revised) 2021, is also nullity in the eyes of law. 16. The above said argument is raised by the learned senior counsel on behalf of the appellants drawing our attention to the case of Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. ((2....
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.... appellants that under Article 243 N and Article 243 ZF, the Act of 1973 was required to be amended to make it adherent to the provisions of 73rd and 74th Constitutional amendments. The learned senior counsel further argued that disobedience to the constitutional mandate amounts to breaking down of the federal polity leading to constitutional impasse. The amended provisions of the Act of 1973 clearly provides for a role of local authorities in the planning process. The same cannot be abrogated. It is also contended that the role and functions of the District Planning Committee were notified once Chhattisgarh was notified out of Madhya Pradesh. This was further supplemented by the District Planning Committee. Therefore, in the presence of a notified District Planning Committee, it was argued by the learned senior counsel, that planning for districts as a conglomeration of panchayats cannot be done by Respondent No. 2-RDA. 19. We are in agreement with the legal contentions raised by the learned senior counsel on behalf of the appellants. Once the Constitution provides for democratically elected bodies for local self-government, a nominated body like Respondent No. 2- RDA cannot assu....
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....nd before this Court and contends that the Company Law Board has no jurisdiction to compound an offence punishable under Section 211(7) of the Act as the punishment provided is imprisonment also. Mr Bhushan, however, submits that imprisonment is not a mandatory punishment under Section 211(7) of the Act and, hence, the Company Law Board has the authority to compound the same. He also points out that this submission was not at all advanced before the Company Law Board and, therefore, the appellant cannot be permitted to raise this question for the first time before this Court. We are not in agreement with Mr Bhushan in regard to his plea that this question cannot be gone into by this Court at the first instance. In our opinion, in a case in which the facts pleaded give rise to a pure question of law going to the root of the matter, this Court possesses discretion to go into that. The position would have been different had the appellant for the first time prayed before this Court for adjudication on an issue of fact and then to apply the law and hold that the Company Law Board had no jurisdiction to compound the offence." Further, this Court in Greater Mohali Area Development Author....
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.... to raise technical pleas to defeat the rights of the citizens in Madras Port Trust v. Hymanshu International (1979) 4 SCC 176 wherein it was opined that it is about time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Para 2 from the said case reads thus :- "2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is ....
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....he appellants that in the backdrop of the aforesaid Constitutional morality and the fact situation of the cases in hand, the decision of the Respondent No.2- RDA to add 1900 acres of land at different stages, and also change of land use, is sullied by bias of Sri S.S. Bajaj, who acted in different capacities in relation to the same transaction wherein each authority was expected to apply its mind independently of each other. The said contention by the learned senior counsel on behalf of the appellants is well founded and the same must be accepted by this Court. There is strong substance and evidence in the submissions of the learned senior counsel of the appellants. As per the evidence produced before us, on 20.07.2009, one Sri S.S. Bajaj, served as the CEO of the Respondent No. 2- RDA proposed addition of 1900 acres of land in KVTDS. About 20 days later, on 10.08.2009, the same Mr. S.S. Bajaj was serving as Special Secretary, Department of Housing & Environment, Chhattisgarh Government, which is Respondent No.1 before us has approved the said addition of 1900 acres of land to the scheme which is a clear case of bias. This Court has on many occasions, mentioned the bare minimum req....
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....d to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi- judicial enquiries as well as administrative enquiries." For the above reason alone as rightly contended by the learned senior counsel on behalf of the appellants, the enhancement of land in the KVTDS is vitiated due to lack of objectivity and non-application of mind. 27. The initial intention to prepare the KVTDS of 416.93 acres was published in the Gazette on 05.06.2009. Thereafter, on 14.07.2009, Sri S.S. Bajaj serving as CEO of Respondent No. 2- RDA presided over the meeting of the Board of Directors of the RDA wherein the decision to add 1900 acres of land of villages including Dumart....
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....and actions have been taken by the Authority and not by any individual. Even otherwise the communications done by the officer for the answering respondent was not his individual communication but was on behalf of the Committee as well as Board of Directors and therefore could not be said to have in his individual capacity. Likewise, whole corresponding on behalf of the State Government and on behalf of His Excellency the Governor and in his individual capacity." 30. However on the basis of the evidence on record produced before us, we are unable to concede with the affidavits so released by Respondent No. 2- RDA since the evidence of bias and self-interest is evident. This Court in one occasion, in the case of The State of Punjab and Anr. v. Gurdial Singh and Ors. AIR 1980 SC 319 opined with respect to mala fide in jurisprudence of power, as under :- "9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice. Pithily put, bad faith which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motiv....
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....as examined by a Committee constituted under Section 50(5) of the Act of 1973, which prepared its report dated 8.6.2010. The same was accepted by Shri S.S. Bajaj, Chairman of Respondent No. 2-RDA in the Board meeting held on 21.6.2010 and 22.6.2010. Therefore, the entire exercise made by RDA under Section 50 (5) of the Act has been rendered otiose and an empty formality in the light of the decisions of this Court mentioned supra and in view of the aforesaid undisputed facts in relation to the action taken by the Respondent No. 1-State Government, to give permission only after applying its mind independently on the materials submitted by the Respondent No. 2-RDA which is not done by the State Government and therefore, the power exercised by the State Government in sanctioning the proposed scheme of Respondent No. 2- RDA has rendered otiose. It is a well established principle in the Indian jurisprudence that no one can be a judge in his own case. The fact has been established by various decisions of this Court. It was held in the case of M/s. J. Mohapatra and Co. and Anr. v. State of Orissa & Anr. AIR 1984 SC 1572 as under: "12. There is, however, an exception to the above rule tha....
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....id down comprehensively in Section 50 of the Act of 1973. The initial approval of the Scheme was on 25.1.2008 and approval to add 1900 acres of land to KVTDS dated 10.08.2009 was granted by the State Government without any application of mind and objective consideration by the Respondent No. 1-State Government which fact is expressly clear as the said proposed scheme was neither in accordance with the Development Plan nor did any Zonal Plan which existed at the material point of time. Therefore, for the reasons mentioned by us, we answer this point in favour of the appellants. Answer to Point No. 2 32. It is contended by the learned senior counsel on behalf of the appellants that the Town Development Scheme KVTDS prepared in the case in hand, is in contravention to the provisions laid down in Section 50 of the Act. Section 50(1) of the Act of 1973 reads thus: "Preparation of Town Development Schemes- (1) The Town and Country Development Authority may, at any time, declare its intention to prepare a Town Development Scheme: [Provided that no such declaration of intent shall be made without the prior approval of the State Government]. ........." Reliance has been placed upon t....
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....upon the authority. 34. Also, a proviso added to Section 50(1) of the Act in the year 2012 states that a Development Authority can declare its intention of preparing Town Development Scheme only with the prior approval of the State Government. 35. Section 49 of the Act of 1973 provides for the matters for which a Town Development Scheme can be prepared. Section 49 of the Act reads thus: "49. Town Development Scheme- A Town Development Scheme may make provision for any of the following matters:- (i) acquisition, development and sale or leasing of land for the purpose of town expansion; (ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum; (iii) acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres, administrative centres; (iv) acquisition and development of areas for commercial and industrial purposes; (v) undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial and other facilities; (vi) acquisition of land and its development for the purpose of l....
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....t has been specifically noted that physical survey of the area must be carried out. It is contended by the learned senior counsel on behalf of the appellants that even the letter dated 20.7.2009 addressed by Respondent No. 2- RDA to the Respondent No. 1- State Government admits that survey of the area is being carried out in respect of previous 416.93 acres of land. In the instant case, the proposal to have KVTDS as well as sanction for the same by the Respondent No. 1- State Government, is not preceded by a survey of the area, which renders the exercise of its power of ex post facto survey into an empty formality which action of it is wholly unsustainable in law. 37. Further, the purpose of the KVTDS as has been cited by the Respondent No. 2- RDA, is only with the purpose of curbing illegal plotting which can be served by regulating development work by exercise of statutory power vested in the Respondent No. 2- RDA under the Act of 1973. On the pretext of regulating development or stopping illegal construction/ plotting, the Respondent No.2- RDA cannot take away the land of the appellants in exercise of the power of eminent domain by the State Government. The Town Development Sch....
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....% area of the village is not included in the notification under Section 4(1) though available for acquisition, and out of the remaining 70% area which is notified, more than half (that is, about 40% of the village area) is deleted when final notification is issued, and the acquisition is only of 30% area which is non-contiguous, it means that there was no proper survey or application of mind when formulating the development scheme or that the deletions were for extraneous or arbitrary reasons. 157. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if he was eking out his livelihood from that land. If large areas are notified and then large extents are to be deleted, it breeds corruption and nepotism among officials. It also creates hostility, mutual distrust and disharmony among the villagers, dividing them on the lines of "those who can influence and get their lands deleted" and "those who cannot". Touts and middlemen flaunting political connections flourish, extracting money for getting lands deleted. Why subject a large number of citizens to such traumatic experience? Why not plan properly before embarkin....
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....ch reads as under: "49. ..... There is no Section either in the Act nor any rule was placed to demonstrate that the Chairman alone, as such, could exercise the power of the Authority. There is no whisper nor there is any record to establish that any meeting of the Authority was held regarding alteration of the scheme. In any case the power does not vest in the State Government or the Chief Minister of the State. The exercise of power is further hedged by use of the expression, if 'it appears to the Authority'. In legal terminology it visualises prior consideration and objective decision. And all this must have resulted in conclusion that the alteration would have been improvement. Not even one was followed. The Chairman could not have acted on his own. Yet without calling any meeting of the authority or any committee he sent the letter for converting the site. How did it appear to him that it was necessary, is mentioned in the letter dated 21st April, because the Chief Minister desired so. The purpose of the Authority taking such a decision is their knowledge of local conditions and what was better for them. That is why participatory exercise is contemplated. If any alter....
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....the appellant, we intend to mention other grounds too, which render KVTDS as illegal. The learned senior counsel on behalf of the appellants contended that in the absence of a zonal plan, a Town Development Scheme cannot be framed by Respondent No. 2- RDA, and therefore, the acquisition proceedings of the land of the appellants cannot be allowed to sustain. The town development scheme is always subservient to the master plan as well as the zonal plan, as provided under Section 17 of the Act of 1973, which reads as under :- "Section 17: Contents of development plan. A development plan shall take into account any draft five year and Annual Development plan of the district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 (No. 19 of 1995) in which the planning area is situated......" Master plan falls within the category of broad development plans and is prepared by only after taking into account the Annual Development Reports prepared by constitutionally elected bodies of local panchayats and municipalities etc. A zonal plan is mandated to be prepared only after the publication of the Development Plan. Section 20 of the Act reads thus: "20. Preparation of Zonal....
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.... to implement the Development Plan and Zonal Plan. The object and purpose of the Act reads thus: "An Act to make provision for planning and development and use of land; to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective to,....." (emphasis laid by this Court) Therefore, the Object and Purpose of the Act also provides that a Town Development Scheme can be prepared in the presence of a Zonal Plan which in turn has to be prepared for the implementation of the Development Plan. 41. In fact, Section 2(g) of the Act of 1973 defines "development plan" as including "a zonal plan". Therefore, unless a Zonal Plan and also a development plan is prepared, a Town Development Scheme cannot be proposed. The provisions of Sections 49 and 50 of the Act of 1973 categorically provide for "Development Plan" to mean "master plan" as well as "Zonal Plan". 42. In the case in hand, the KVTDS has been prepared in the absence of a Zonal Plan. It is not possible to define the utilization of land under the Town Development Scheme unless the Zonal Plan formulated b....
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....ned senior counsel on behalf of the appellants on the judgment of this Court in Chairman, Indore Vikas Pradhikaran case mentioned supra, the relevant portion of which is quoted hereunder : "37. When a planning area is defined, the same envisages preparation of development plan and the manner in which the existing land use is to be implemented. A development plan in some statutes is also known as a master plan. It lays down the broad objectives and parameters wherewith the development plan is to deal with. It also lays down the geographical splitting giving rise to preparation and finalization of zonal plans. The zonal plans contain more detailed and specific maters than the master plan or the development plan. Town planning scheme or lay-out plan contains further details on plot-wise basis. It may provide for the manner in which each plot shall be dealt with as also the matter relating to regulations of development. XXX XXX XXX 72. Land use, development plan and zonal plan provided for the plan at macro level whereas the town planning scheme is at a micro level and, thus, would be subject to development plan. It is, therefore, difficult to comprehend that broad based macro level....
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.... it stands at such time. To illustrate the absurdity to which such an interpretation could lead it would then become open to the town development authority to notify an intent to formulate a town development scheme even in the absence of a development plan, freeze all usage of the property by a owner thereof by virtue of Section 53 of the Act, and should no development plan be finalized within 3 years, such scheme would lapse and the authority thereupon would merely notify a fresh intent to formulate a town development scheme and once again freeze the usage of the land for another three years and continue the same ad infinitum thereby in effect completely depriving the citizen of the right to use his property which was in a manner otherwise permitted under law as it stands. 78. The essence of planning in the Act is the existence of a development plan. It is a development plan, which under Section 17 will indicate the areas and zones, the users, the open spaces, the institutions and offices, the special purposes, etc. Town planning would be based on the contents of the development plan. It is only when the development plan is in existence, can a town planning scheme be framed. In f....
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....velopment Authority and, is required to submit its proposal on these aspects: * Define and demarcate areas allotted or reserved for public purpose; * Demarcate the reconstituted plots; * Evaluate value of original plots and reconstituted plots; * Determine whether the areas marked for public purpose are wholly or partially beneficial to the residents; * Estimate the compensation or contribution from beneficiaries of the scheme; * Evaluate increment in value of the reconstituted plot for calculating incremental value; * Evaluate the reduction in value and assess compensation payable therefor; 48. The committee, in the case, in hand, has recorded in its report only on the first four aspects and has held the last three aspects as not applicable to the scheme without assigning any valid reasons. Therefore, in providing this report, the committee has violated the mandatory provision of providing a complete report before acquiring land from landowners which often results in loss of livelihood for poor agriculturists. This aspect of loss of livelihood has been noted by this Court in the case of Bondu Ramaswamy mentioned supra. 49. The learned single judge of the High Court....
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....discussed at appropriate place in this judgment. 52. Further, there is no board resolution for the village Dumartarai, and in any event, Board resolution of Respondent No. 2- RDA does not amount to intention to declare under Section 50 (1) to develop a town development scheme in terms of the Government Order dated 18.11.1999. The Respondent No. 2- RDA, on the other hand, is required to seek permission from Respondent No. 1- State Government to publish the intention in the official gazette. The RDA under the aforesaid provision was required to declare its intention to the public at large. 53. In the instant case, the Respondent No. 1- State Government granted permission to Respondent No. 2- RDA to publish its intention under Section 50(2)of the Act of 1973, on 25.1.2008 for village Dunda alone. It published its intention under the aforesaid provision for the villages of Dunda as well as Tikrapara pursuant to the Board Resolution by circulations dated 12.5.2009 and 5.6.2009. Afterwards the Respondent No. 1- State Government granted permission dated 10.8.2009 for increasing the area of the Scheme to 2300 acres. The Board of the RDA issued another resolution by circulation dated 20.8....
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....r reconstituted plots and the Acts also provided the procedure to be followed for the same under the respective statutes. Section 65 (1) of the Maharashtra Act and Section 45 (1) of the Gujarat Act are in pari material, which are reproduced hereunder: "Section 65 (1) of the Maharashtra Act: In the draft scheme, the size and shape of every reconstituted plot shall be determined, so far as may be, to render it suitable for building purposes, and where a plot is already built upon, to ensure that the buildings as far as possible comply with the provisions of the scheme as regards open spaces." Section 45 (1) of Gujarat Act: In the draft scheme referred to in Section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building purposes and where the plot is already built upon, to ensure that the building, as far as possible, complies with the provisions of the scheme as regards open spaces" Further Section 49 (viii) of the Act of 1973 empowers RDA to make provision for reconstitution, which reads as under: "49. Town Development Scheme - A town development scheme may make provision for any of the following matters: .......... (viii) ....
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.... a town planning scheme, to a final plot shall be transferred and any right in an original plot which in the opinion of the Town Planning Officer is not capable of being so transferred shall be extinguished: Provided that an agricultural lease shall not be transferred from an original plot to final plot without the consent of all the parties to such lease." The Maharashtra Act of 1966 confer this right on an Arbitrator appointed by the State Government. Section 72 (3) (xiii) of the Act reads as under: "72 (3)in accordance with prescribed procedure, every Arbitrator shall,- ............. (xiii) provide for the total or partial transfer of any right in the original plot to a final plot or provide for the execution of any right in an original plot in accordance with the provisions contained in section 101;" 58. In the light of the provisions above mentioned, it is clear that under both the town planning legislations for Gujarat and Maharashtra States, a specific authority has been statutorily authorized to alter rights in property and to reconstitute plots, whereas no such authority has been so empowered under the Chhattisgarh Town Planning Act, 1973. Therefore, without an offici....
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....such a mode has been approved by the Constitution Bench of this Court in Shantilal Mangaldas, wherein this Court has held that when the scheme comes into force all rights in the original plots are extinguished, and simultaneously therewith ownership springs in the reconstituted plots. It does not predicate ownership of the plots in the local authority, and no process-actual or notional- of transfer is contemplated in that appropriation. Under clause (a) of Section 53, vesting of land in local authority takes place only on commencement of scheme into force. The concept that lands vest in a local authority when the intention to make a scheme is notified, is against the plain intendment of the Act. Even steps taken by the State do not involve application of the doctrine of eminent domain." 60. It is further contended by the learned senior counsel on behalf of the appellants that apart from this, the allotment of reconstituted plots to the original land owners is being done in an arbitrary and discriminatory manner and therefore the same is wholly unsustainable in law. It was further contended that the Respondent No.1-State government arbitrarily excluded and included lands in the sch....
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....rivate colonizers whose layout had been approved irrespective of whether construction has been carried out or not in the permission dated 25.01.2008, the State Government had itself directed that lands with trees and construction will not be included, and therefore, the question of having such a huge area including constructed land did not arise for its consideration. As a consequence of the above said exclusion, portions of land belonging to the appellants in Civil Appeal arising out of SLP (C) No. 30942 of 2014 measuring about 11 acres was separated from the main proposed township by a distance of about 1.5 kms. Between these two chunks of land, there lies a densely populated area. Apparently, there are no means to provide services to the separated land other than by spending disproportionate costs on separate infrastructural facilities such as sub-station, sewerage treatment plant, water pumping station, separate water pipeline, separate sewerage plant etc. Therefore, it is contended that there will be no adverse implication for the proposed township if lands belonging to the appellants in the above mentioned appeal are excluded from the KVTDS. 63. Further, the lands of other ....
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....lot owners in making allotments and help them to resettle and not to continue the illegal and haphazard pockets merely on the ground that some temporary structure or a dilapidated structure existed therein. A development authority should either provide orderly development or should stay away from development. It cannot act like unscrupulous private developers//colonisers attempting development of small bits of land with only profit motive. When we refer to private developers/colonisers by way of comparison, our intention is not to deprecate all private developers/colonisers. We are aware that several private developers/colonisers provide large, well planned authorized developments, some of which are even better than developments by development authorities. What is discouraged and deprecated is small unauthorized layouts without any basic amenities. Be that as it may. 137. What do we say about a `development', where with reference to the total extent of a village, one-third is not notified at all, and more than half is deleted from proposed acquisition of the remaining two-third and only the remaining about 20% to 30% area is acquired, that too not contiguously, but in differen....
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.... Government that agricultural land will be excluded. The committee constituted under Section 50(5) was headed by CEO of Respondent No. 2- RDA who himself proposed inclusion of 1900 acres of land vide letter dated 20.7.2009. This affects the rights of the appellants. For this reason also, they did not receive fair hearing from the Committee. The recommendations of the committee were considered by the Board of Directors of Respondent No. 2- RDA on 21.6.2010. While the committee was hearing the objections, there was no freezing of land use and Respondent No. 2- RDA kept on proposing change in land use. This affected the statutory rights of the land owners who were entitled to fair hearing against the acquisition of land. 67. In the case of Raghbir Singh Sehrawat v. State of Haryana (2012) 1 SCC 792, held as under: "40. Though it is neither possible nor desirable to make a list of the grounds on which the landowner can persuade the Collector to make recommendations against the proposed acquisition of land, but what is important is that the Collector should give a fair opportunity of hearing to the objector and objectively consider his plea against the acquisition of land. Only there....
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....o. 2- RDA, that too, to the extent of mere 35% of the area, is constitutionally impermissible. Against this contention raised by the learned senior counsel for the appellants, the learned senior counsel for the the Respondent No. 1- State Government as well as the High Court of Chhattisgarh, relied upon the decision of this Court in the case of State of Gujarat v. Shantilal Mangaldas and Ors. AIR 1969 SC 634, to hold that taking away land and giving back 35% developed land in return, is in accordance with the Constitution. On this aspect, we are inclined to rely upon the decision of this court in His Holiness Kesavananda Bharathi v. State of Kerala (1973) 4 SCC 225 which laid down the subsequent development on the jurisprudence of compensation and overruled the decision of Shantilal in the process. It was held in the case of Kesavananda Bharati v. State of Kerala as under: "584. The later decisions had continued to uphold the concept of "compensation" i.e. just equivalent of the value of the property acquired in spite of the amendments made in 1955. In State of Gujarat v. Shantilal Mangaldas and Others the decision in Metal Corporation of India, was overruled which itself was vir....
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....itrary also because the percentage of reconstituted land to be returned to the land owners vary from 35% to 58% for large plot holders and small plot holders. Also, from the letter dated 20.7.2009, it is evident that Respondent No. 2- RDA had already taken a decision that not more than 40% of land will be returned to the land owners. This decision is arrived at without taking into consideration the value of each portion of land on the basis of their geographical locations. 70. It is further submitted by the learned senior counsel on behalf of the appellants that taking land under "Development Contribution" to the extent of 65% is not contemplated under Section 50(6) of the Act. Section 50(6)(vi) of the Act of 1973 reads as under: "......(vi)evaluate the increment in the value of each reconstituted plot and assess the development contribution leviable on each plot holder: Provided that the contribution shall not exceed half the accrued increment in value." 71. Even under Section 40(3)(jj)(a) of the Gujarat Act, the maximum permissible contribution of land by land owner cannot exceed 50%. Therefore, in the absence of any reasonable procedure arrived at by the Respondents, taking 6....
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....2010. Para 4.2 of the said O.M provides that the procedure for grant of environmental clearance to development projects in 'severely polluted' areas will be as per circular dated 25.8.2009, i.e. for critically polluted areas. Therefore, the effect of O.M. referred to supra is that that the EC to the said projects will have to be given by the Central Government. 76. The Respondent No. 2-RDA submitted its application on 17.6.2010 for EIA approval for 2300 acres of township. On 25.1.2011, EC clearance/EIA approval was granted by the State Level Environment Impact Assessment Authority (SEIAA) to Respondent No.2-RDA which is not the authority to give such clearance as per O.M dated 13.1.2010 since the same has to be granted by the MoEF. 77. The MoEF in its affidavit filed before the High Court in Writ Petition (c) No.6040 of 2011, has stated that general conditions of EIA Notification dated 14.9.2006 were made inapplicable on the projects in item 8(b) vide MoEF O.M. dated 24.5.2011. The High Court has relied on the aforesaid affidavit and dismissed the contention of the appellants with regard to the EC issue, thereby it has erred in not appreciating the said O.M. issued after SEIAA h....