TaxTMI 
TaxTMI 
2007 (5) TMI 624
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....ng plans with a view to ensuring that town planning schemes are made in a proper manner and their execution is made effective; to constitute a Town & Country Planning Authority for proper implementation of town and country development plan; to provide for the development and administration of special areas through a Special Area Development Authority; to make provision for the compulsory acquisition of land required for the purposes connected with the said matters. The said Act came into force with effect from 16.04.1973. Statutory Provisions : 5. The terms "development", "existing land use map", "planning area", "Town Development Scheme" and "Town and Country Development Authority", which are relevant for the purpose of this case, have been defined in Section 2(f), 2(i), 2(o), 2(u) and 2(v) of the Act respectively in the following terms : "2(f) "development" with its grammatical variations means the carrying out of a building, engineering, mining or other operation in, on over or under land, or the making of any material change in any building or land or in the use of either, and includes sub-division of any land;" "2(i) "existing land use map" means a map indicating the use t....
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...., grant permission for the change in use of land otherwise than as indicated in the existing land use map without the permission in writing of the Director." 8. Section 17 provides as to what should be the contents of the development plan. Section 17A(1) provides for constitution of a committee; sub-sections (2) and (3) whereof read as under : "(2) The Committee constituted under sub-section (1), shall : (a) consider and suggest modifications and alterations in the draft development plan prepared by the Director under section 14; (b) hear the objections after the publication of the draft development plan under section 18 and suggest modifications or alterations if any; to the Director. (3) The Convenor of the Committee shall record in writing all the suggestions, modifications and alterations recommended by the committee under sub-section (2) and thereafter forward his report to the Director." 9. Section 18 of the Act provides for publication of a development plan; in terms whereof the objections and suggestions in writing are invited with respect thereto. The notice in terms of the said provision is to specify in regard to the draft development plan, inter alia, the f....
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.... the notification under sub-section (1) shall, subject to the provisions of this Act vest in the Town & Country Development Authority established for the said area." 15. Section 49 of the Act envisages that a town development scheme may make provision for the matters specified therein including acquisition of land for the purposes mentioned therein as also any other work of such a nature as would bring about environmental improvements which may be taken up by the authority with the prior approval of the State Government. 16. Sub-sections (1), (2), (3) and (4) of Section 50 of the Act, which are material for our purpose, read as under : "50.(1) The Town and Country Development Authority may, at any time, declare its intention to prepare a town development scheme. (2) Not later than thirty days from the date of such declaration of intention to make a scheme, the Town and Country Development Authority shall publish the declaration in the Gazette and in such other manner as may be prescribed. (3) Not later than two years from the date of publication of the declaration under sub-section (2) the Town and Country Development Authority shall prepare a town development scheme in draft ....
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....rred upon it under Section 38 of the Act issued a notification establishing the Appellant- Authority, namely, 'Indore Vikas Pradhikaran' from 13.05.1977 in respect of the area specified in the notification dated 13.02.1974. 21. On or about 30.03.1999, the State Government delegated its power under Sections 13 and 47A of the Act in favour of the District Planning Committee and it in exercise of said delegated power by a notification dated 13.11.2000 amended the planning area by adding 115 villages therein which included the said villages Bicholi and Kanadia. By a notification dated 28.06.2002, it, however, further amended the extent of planning area by deleting 62 villages therefrom. Bicholi and Kanadia villages were, however, retained in the said amended notification. 22. Upon compliance of the usual statutory formalities, the appellant published a draft development plan on 27.06.2003. The said plan was in respect of Urban Development Scheme No.164. Objections and suggestions in respect thereof were called for. Allegedly, objections and suggestions having been filed; they were heard by the Development Planning Committee during the period between 25.08.2003 and 03.09.2003. By a re....
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....ting the said authority to sanction the site plan which had been submitted. The said writ petitions were dismissed by a learned Single Judge by an order dated 17.05.2006. Writ appeals were preferred there against, which have been allowed by the Division Bench of the High Court by its judgment dated 06.03.2007. High Court Judgment : 26. By reason of the impugned judgment, the High Court struck down the declaration made under Section (2) of Section 50 of the Act, opining : (i) Unless a development plan for an area is published and comes into operation, a draft development scheme cannot be published by the Town and Country Development Authority under sub-section (2) of Section 50 of the Act. (ii) Such a town development scheme cannot by itself without a development plan for the area restrict the right of a person to use his property in the manner he likes. (iii) Although the notification issued by the Appellant-Authority had been constituted by the State Government only in respect of the area which was covered by the notification dated 13.02.1974, the draft development scheme prepared by it was ultra vires, so far as the said two villages are concerned, being beyond its territori....
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....llant-Authority. (viii) The State of Madhya Pradesh having framed rules known as 'Madhya Pradesh Bhumi Vikas Niyam, 1984', (Rules) which are parts of the town development scheme, keeping in view the fact that the scheme provided for 10,000 houses for the low income group wherefor three major roads were required to be built up having a width of 75 metres, 60 metres and 36 metres respectively as also parks, roads, colleges, gardens, playgrounds and green belts, the purposes for which such scheme had been framed would not be subserved, if permissions are granted for haphazard and unplanned development. (ix) In any event, private interest must be waived to public interest. (x) The High Court committed a manifest error insofar it failed to take into consideration that the planning area having been extended by a notification issued by the District Planning Committee, the same would subserve the purpose of the notification dated 28.10.2005 issued under sub-section (1) of Section 38 of the Act. 28. Mr. Banthia, the learned counsel appearing on behalf of the State had not made any separate submission before us. 29. Mr. C.A. Sundaram and Mr. Arun Jaitley, learned Senior Counsel appearin....
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....d as per law, and, thus, in absence thereof a town development scheme under Section 50 cannot be made. (viii) In view of the fact that the State Government has issued a notification on 28.10.2005 extending the area of operation of the Appellant- Authority, the scheme illegally notified by it would not be invalidated. (ix) Gram Panchayat of the village being the competent authority at the relevant time having sanctioned the building plan, a vested right had accrued in favour of the first respondent and such a power having been acknowledged and accepted under the provisions of the Act, the same cannot be taken away. Analysis of the statutory provisions : 30. The Act is divided into several chapters. It proceeds on the basis that steps are required to be taken before a town planning scheme is given effect to. The State Government is in overall control of the matter relating to town and country planning. 31. The Director of Town and Country Planning, however, subject to the control and supervision of the State, exercises such statutory powers which are conferred upon him. A State is divided into several regions. A regional plan is finalised whereupon restrictions on use of land or....
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....n. 35. Before the procedure referred to hereinbefore is applied to the case at hand, it would appear that the notification dated 13.02.1974 issued under Section 13 of the Act extending the planning area would not include the land of the respondents being outside its territorial jurisdiction. By reason of 1977 Notification the villages in question in which the lands of the respondents are situated, Indore Development Plan, 19991 would not have any application thereover. The notification issued under Section 38(1) of the Act on 09.05.1977, would, thus, be limited to the area specified under the notification dated 13.02.1974. 36. A Town and Country Development Authority although may have something to do with the preparation of the draft development plan. It exercises complete control, subject of course to the power of the State Government, to give directions, exercises revisional power, etc. over implementation of the development plan by making town development schemes. 37. Chapter VIII of the Act deals with special areas. Chapter IX, however, envisages power of the State Government of supervision and control as also to issue necessary directions. The State has also the power to re....
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....ere 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 finalizing 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 finalized 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. Principal questions : 43. In these appeals, principally, we are beset with two questions: (i) Whether having regard to notification dated 13.02.1974 vis-'-vis the expansion of the Indore Development Plan, ....
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....mind, but the same would become irrelevant, as thereby statutory rights of a party cannot be taken away. The courts must make an endeavour to strike a balance between public interest on the one hand and protection of a constitutional right to hold property, on the other. 48. For the aforementioned purpose, an endeavour should be made to find out as to whether the statute takes care of public interest in the matter vis-'- vis the private interest, on the one hand, and the effect of lapse and/ or positive inaction on the part of the State and other planning authorities, on the other. 49. The courts cannot also be oblivious of the fact that the owners who are subject to the embargos placed under the statute are deprived of their valuable rightful use of the property for a long time. Although ordinarily when a public authority is asked to perform statutory duties within the time stipulated it is directory in nature but when it involves valuable rights of the citizens and provides for the consequences therefor it would be construed to be mandatory in character. 50. In T. Vijayalakshmi v. Town Planning Member [(2006) 8 SCC 502], this Court held: "15. The law in this behalf is ....
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....e remained undeveloped in the process but also get the benefit of living in a developed town having good town planning. 53. The courts should, therefore, strive to find a balance of the competing interest. Human Right Issue : 54. The right of property is now considered to be not only a constitutional right but also a human right. 55. The Declaration of Human Rights (1789) enunciates under Article 17 "since the right to property is inviolable and sacred, no-one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it and just and prior indemnity has been paid". Further under Article 217 (IIII) of 10th December, 1948, adopted in the General Assembly Resolution it is stated that : (i) Everyone has the right to own property alone as well as in association with others. (ii) No-one shall be arbitrarily deprived of his property. 56. Earlier human rights were existed to the claim of individuals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has t....
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....ion 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.)" It was further stated : "29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma 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 and CCE v. Orient Fabrics (P) Ltd.] 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." 62. In State of Rajasthan & Ors. v. Basant Nahata [JT 2005 (8) SC 171], it was opined : "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 300A of the Constitution of India." 63. In State of Uttar....
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....ld 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 depriv....
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....i v. State of Maharashtra [(2005) 4 SCALE 688]. Application of the Act : 67. While determining the questions involved in these appeals, we are not unmindful that the purpose and object of the town development scheme is a laudable one insofar as it purports to allocate areas covered by Scheme No. 164 for residential purposes and a bypass road of 70 feet wide is to be built along the eastern periphery of the area covered by the Scheme. The question, however, would be as to whether the development can be said to be a haphazard one or would completely destroy the purpose for which the land was to be reserved for planned development of the residential area. 68. The process started in the year 1974. Only 37 villages were included within the planning area. It may be that with the passage of time the requirements for a better planned city were felt, but it is difficult to conceive that the State of Madhya Pradesh while constituting the appellant authority in terms of Section 38(1) of the Act by reason of its notification dated 09.05.1977 was wholly oblivious thereto. When the Act came into force the existing land use was determined. The area for which, thus, land could be put to use was ....
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..... Venugopal at this stage: (i) The development plan includes draft development plan; (ii) Existence of any draft development plan would authorise the appellant authority to declare its intention to prepare a town development scheme at any time. 72. The draft development plan was published on 27.06.2003 although it was sent for consideration of the State in terms of Section 19 of the Act on 9.10.2003. The same was returned to the appellant authority stating that plan to be prepared for the projected population in the year 2021 on or about 4.01.2005. A draft development plan 2021 was published only on 13.07.2007 whereas the declaration by the appellant authority was notified on 20.08.2004. Submission of Mr. Venugopal that a development plan would include a draft development plan is sought to be made as the statute has interchangeably used draft development plan, sanctioned development plan as development plan and, secondly, on the strength of clause (iv) of Sub-section (1) of Section 18 of the Act laying down that a notice shall be issued thereunder containing inter alia the particulars, viz., the provisions for enforcing the draft development plan and stating the manner in which ....
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....ntext indicating a contrary intention, the same meaning should attach to the words. [See Lenhon v. Gobson & Howes Ltd., (1919) AC 709 at 711, Craies on Statute Law, Seventh Edition, page 141 and G.P. Singh's Principles of Statutory Interpretation, Tenth edition, page 278] 77. In Venkata Subamma and another v. Ramayya and others [AIR 1932 PC 92], it is stated that an Act should be interpreted having regard to its history, and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section. 78. 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. 79. 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 acquis....
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....ulate a town development scheme even without a development plan and ipso facto bring into play a freeze on usage of the land under Section 53 would lead to complete misuse of powers and arbitrary exercise thereof depriving the citizen of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. This would be an unlawful deprivation of the citizen's right to property which right includes within it the right to use the property in accordance with the law as it stands at such time. To illustrate the absurdity to which such an interpretation could lead it would then become open to the town development authority to notify an intent to formulate a town development scheme even in the absence of a development plan, freeze all usage of the property by a owner thereof by virtue of Section 53 of the Act, and should no development plan be finalized within 3 years, such scheme would lapse and the authority thereupon would merely notify a fresh intent to formulate a town development scheme and once again freeze the usage of the land for another three years and continue the same ad infinitum thereby in effect completely depriving the citizen of ....
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....n, the declaration of intention to prepare a scheme can only be in the context of a development plan. The starting point of the declaration of the intention has to be upon the notification of development plan and the outer limit for the authority to frame such a scheme upon lapsing of the plan. That is the plausible interpretation of the words "at any time" used in Section 50(1) of the Act. [See State of H.P. & Ors. v. Rajkumar Brijender Singh & Ors., (2004) 10 SCC 585] 88. For construing a statute of this nature, we are dealing with, rule of purposive construction has to be applied. 89. In Francis Bennion's Statutory Interpretation, purposive construction has been described as under : "A purposive construction of an enactment is one which gives effect to the legislative purpose by (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction)." [See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay ....
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....n 75 of the Act delegated its power conferred upon it under Sections 13 and 47A of the Act upon the District Planning Committee. No power under Section 38 was delegated. The District Planning Committee exercises its jurisdiction pursuant to the said delegation in terms of a notification dated 13.11.2000 extending the Indore Development Planning Area to 152 villages. The villages Bicholi and Kanadia were not included in the notification dated 12.08.1977. They were included only in the notification issued by the District Planning Committee. 95. The District Planning Committee, however, issued another notification amending the planning area to 90 villages only and deleting 62 villages from its earlier notification. 96. There cannot be any doubt whatsoever that even a delegatee exercises its power relying on or on the basis of its power conferred upon it by the delegator, its act would be deemed to be that of the principal as has been held by this Court in State of Orissa and Others v. Commissioner of Land Records and Settlement,Cuttack and Others [(1998) 7 SCC 162], this Court held: "25. We have to note that the Commissioner when he exercises power of the Board delegated to him und....
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....Please refer the reference letter by which the Indore Development Authority sought permission for new Transport Nagar Scheme on 265 hectares of land situated in village Mundrla Nayata. (1) In this regard opinion of law department has been received and as per that in the year 1977 the areas of Indore Development Authority was prescribed whereas the questioned scheme is failing beyond the prescribed operational area. (2) Although as per letter dated 28th June, 2002, the planning area of Indore city is extended but the operational area of Indore Development Authority has not been extended. At present, Indore Development Plan, 1991 is in force and new Development Plan is being prepared. (3) Thus, the Indore Development Authority is not competent to declare "Town Development Scheme" beyond its prescribed operational area." 99. Yet again, the State in exercise of its power under Section 38(1) of the Act notified planning area confirming to the one identified by the District Planning Committee in terms of its notification dated 28.10.2005. How State understood it : 100. Application of the principle of executive construction would lead to a conclusion that the State and the appellant....
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....er upon the District Planning Authority under Section 38 of the Act. The appellant authority was created for a definite purpose. Its jurisdiction was limited to the area notified. When so creating, although 1974 notification was referred to, the same was only for the purpose of limiting the area of operation of the appellant authority. The principle of legislation by incorporation was applied and not the principle of legislation by reference. 103. The difference between the two principles is well-known. Whereas in the case of the former, a further notification amending the ambit or scope of the statute would be necessary, if the statute incorporated by reference is amended, in the latter it would not be necessary. 104. In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. [AIR 2005 SC 3593], this Court observed: "9. Adopting or applying an earlier or existing Act by competent Legislature to a later Act is an accepted device of Legislation. If the adopting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference. Whereas if the provisions of another Act are bodily lifted and incorporated in the Act, then it is known as legislation by i....
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....? 111. Before parting, however, we must notice a submission of Mr. C.A. Sundaram, learned counsel appearing on behalf of the respondents, to the effect that the High Court committed a manifest error insofar as it limited its direction only to the following: "The impugned order dated 17.5.2006 of the learned Single Judge in W.P. No. 4 of 2005 is set aside and the notification dated 24.8.2004 of the Indore Development Authority insofar as it applies to village Bicholi Hapsi and the communication of the Joint Director, Town and Country Planning, Indore to the appellant that he cannot approve the plan for construction of the house of the appellant because of the publication of the Draft Scheme No. 164 U/s. 50(2) of the Adhiniyam are quashed and the Director is directed to reconsider the application of the petitioner for permission to undertake construction of the house in accordance with the provisions of the Adhiniyam and the observations in this judgment" 112. The learned counsel would submit that the said direction is not correct as the High Court should have directed the Director to consider the respondents' application in accordance with the law as it existed at the relevant po....