TaxTMI 
TaxTMI 
2007 (5) TMI 624
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....the preparation of the development plans and zoning 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)....
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....nding anything contained in any other law for the time being in force, 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 p....
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.... development schemes and acquisition and development of land for the purpose of expansion or improvement of the area specified in 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 public....
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....The villages Bicholi and Kanadia, with which we are concerned herein, were not included therein. 20. The State Government in exercise of power conferred 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, objec....
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....ection 50 of the Act. Respondents filed a writ petition against the said order, inter alia, praying for issuance of a writ or order in the nature of mandamus directing 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....
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....he development plan, as would appear from Sections 38(2) and 49 of the Act, the power/duty to prevent haphazard by declaring the town development scheme must be held to be vested in the Appellant-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.....
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....risdiction thereover in view of Section 38 of the Act. (vii) The definition of the 'town development scheme' as contained in Section 2(u) of the Act presupposes existence of a sanctioned development plan prepared 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, s....
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....er notification under Section 38(1). In this regard, reference may be 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. 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 ....
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....l 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 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....
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....ce power delegated by the State. Although in India the source of such power is not police power but if a zoning classification imposes unreasonable restrictions, it cannot be sustained. The public authority may have general considerations, safety or general welfare in 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 ....
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....nt." The impugned provision does not subserve such purpose. 52. It is also not a case like State of Gujarat v. Shantilal Mangaldas & Ors. [1969 (3) SCR 341], that when a development is made, the owner of the property not only gets much more than what he would have got, if the same 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 righ....
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....ercise 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.)" 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 opi....
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.... 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....
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.... of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred to the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for park and school was an order for transfer without there being any sanction for the same in law." [See also Raju S. Jethmalani 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....
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....d an application before the Director for grant of permission only on 2.12.2004 which was rejected by reason of an order dated 14.12.2004 purported to be for the following reason: "subjected land of village Bicholi Hapsi has been included in the proposed Development Scheme No. 164 of Indore Development Authority." 71. We may notice two precise submissions of Mr. 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 s....
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....ntrary intention, the same meaning would be attached to the word used in the later as is given to them in the earlier statute. It is trite that the words or expression used in a statute before and after amendment should be given the same meaning. It is a settled law that when the legislature uses the same words in a similar connection, it is to be presumed that in the absence of any context 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 ....
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....fore follow that what is contemplated is the final development plan and not a draft development plan, since until the development plan is finalized it would have no statutory or legal force and the land use as existing prior thereto with the rights of usage of the land arising therefrom would continue. 83. To accept that it is open to the town development authority to declare an intention to formulate a town development scheme even without a development plan and ipso facto bring into play a freeze on usage of the land under Section 53 would lead to complete misuse of powers and arbitrary exercise thereof depriving the citizen of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. This would be an unlawful deprivation of the citizen's right to property which right includes within it the right to use the property in accordance with the law as it stands at such time. To illustrate the absurdity to which such an interpretation could lead it would then become open to the town development authority to notify an intent to formulate a town development scheme even in the absence of a development plan, freeze all usage of the prope....
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.... unexplained and undue delay. Such an interpretation would not only result in the destruction of citizens' rights but would also go contrary to the entire context in which the power has been given to the authority. 87. The words "at any time" have to be interpreted in the context in which they are used. Since a town development scheme in the context of the Act is intended to implement the development plan, the declaration of intention to prepare a scheme can only be in the context of a development plan. The starting point of the declaration of the intention has to be upon the notification of development plan and the outer limit for the authority to frame such a scheme upon lapsing of the plan. That is the plausible interpretation of the words "at any time" used in Section 50(1) of the Act. [See State of H.P. & 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 legislat....
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....me. 94. The limit of Indore planning area was specified by a notification dated 13.02.1974 in terms of Sub-section (1) of Section 13 of the Act. Appellant Authority was constituted by the State of Madhya Pradesh in exercise of its power under Section 38(1) of the Act for the area comprised within the Indore planning as specified in the notification dated 13.02.1974. The State in exercise of its jurisdiction under Sub-section (1) of Section 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 dou....
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....at in the absence of a formal request from the IDA it could not extend its area u/s 38 of the Adhiniyam. Accordingly, the respondent no. 2 had submitted its formal request by its aforesaid letter dated 14/10/2005." 98. The State, it is interesting to note, took a similar plea when the appellant authority sought permission for new Transport Nagar Scheme on 265 hectares of land situated in village Mundrla Nayata by its letter dated 23.08.2005 stating: "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 Autho....
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....No. 3413 of 2006, disposed of today]. Exercise of delegated power effect of : 102. The State exercises its different power for different purposes. Issuing notification of a planning area, whether named or not, for the purpose of Section 13(1) is different from the one for which a development authority is created within the meaning of Section 38(1) of the Act. The State in a given situation may appoint more than one authority for the same planned area. The State delegated its power 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 no....
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....lity. 108. It is, therefore, difficult for us to accept the submission of Mr. Venugopal and Mr. Gambhir that the notification dated 13.11.2000 subsumes in the notification dated 12.08.1977. 109. For the reasons aforementioned, we do not have any other option but to uphold the impugned judgment of the High Court. 110. We may, however, observe that several other contentions, as noticed hereinbefore, have been raised before us but we do not find any necessity to go thereinto. Should we issue Mandamus ? 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 ....
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....ch has been accepted by the Division Bench of the High Court, is not a right in relation to ownership or possession of any property for which the expression vest is generally used. What we can understand from the claim of a vested right set up by the respondent Company is that on the basis of the Building Rules, as applicable to their case on the date of making an application for sanction and the fixed period allotted by the Court for its consideration, it had a legitimate or settled expectation to obtain the sanction. In our considered opinion, such settled expectation, if any, did not create any vested right to obtain sanction. True it is, that the respondent Company which can have no control over the manner of processing of application for sanction by the Corporation cannot be blamed for delay but during pendency of its application for sanction, if the State Government, in exercise of its rule-making power, amended the Building Rules and imposed restrictions on the heights of buildings on G.T. Road and other wards, such settled expectation has been rendered impossible of fulfilment due to change in law. The claim based on the alleged vested right or settled expectation cannot be....