TaxTMI 
TaxTMI 
2006 (1) TMI 626
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....balpur and YMCA, private respondents herein respectively by the State of Madhya Pradesh. Jabalpur Development Authority (JDA). 4. The lands in question indisputably come within the Master Plan made in terms of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 (for short 'the 1973 Act") in relation to the town of Jabalpur brought about by the Jabalpur Development Authority (for short "JDA"), a statutory authority constituted thereunder. Prior to coming into force of the 1973 Act, the legislature of the State of Madhya Pradesh enacted the Madhya Pradesh Town Improvement Trusts Act, 1960 (for short "the 1960 Act") in terms whereof Jabalpur Improvement Trust was created for the purpose of carrying out the provisions thereof in the town of Jabalpur wherefor it was entitled to acquire lands belonging to private parties and obtain such land from the State and others by way of agreement, sale etc. There appears to be some dispute as to whether the lands in question are acquired lands or nazul lands belonging to the State of Madhya Pradesh. However, it is not in dispute that the town planning scheme framed by the said trust was approved by the State and by a notification ....
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....tatha Anya Sanrachnaon Ka Vyayan Niyam, 1975 (for short "the 1975 Rules"). 10. Mr. Shiv Sagar Tiwari, learned counsel appearing on behalf of the Appellant in Civil Appeal arising out of SLP (C) No. 12442 of 2003, submitted that allotment of valuable commercial land in favour of the Respondent was made in favour of the private Respondent herein by the State in utter violation of the 1973 Act and the 1975 Rules inasmuch as therefor no advertisement was made and by reason thereof a commercial area has been converted into an industrial area. It was urged that the High Court committed a manifest error in passing the impugned judgment insofar as it failed to take into consideration that the State cannot distribute its largess without following the provisions contained in the 1973 Act and the 1975 Rules which is violative of Article 14 of the Constitution of India. 11. A commercial area, Mr. Tiwari submitted, would mean an area where shops, restaurants, etc. are run and thus the Respondent cannot be entitled to run an industry. It was pointed out that the State directed allotment of the said land without fixing the quantum of the cost of the land, the market value whereof was about ....
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.... before the JDA whereupon the Chairman referred the matter to the State of Madhya Pradesh for passing necessary order. It is true that no recommendation was made by the JDA for allotment of land but the said application was not rejected either. Stand of the JDA in this behalf was that it was for the State Government to make allotment. It was in the aforementioned perspective the Government of Madhya Pradesh through its Under Secretary by a letter dated 21.8.1996 communicated as under: "Out of the authorities land located in the civic centre, which has been sought by Y.M.C.A. Institution, out of that 8000 sq. feet area should be allotted to the General Secretary Y.M.C.A. Institution. 2. According to the guidelines contained in the Revenue Department Circular No. M-6-173/96/Seven/Sa/2-B/Nazul, dated 31.5.96, the said institution should be given the land at a discount of 50% on the market rate and 50% discount should also be given in the lease rent. The development authority should also work out the requisite terms and conditions." 16. It was urged that as in the instant case, the procedures prescribed under the Rules had been followed and the discretion vested in....
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.... or exchange any land within the area comprised in a sanctioned scheme from any person under an agreement which indisputably would include the State. Section 68 provided for notice of acquisition of land. 22. The 1960 Act, however, was repealed and replaced by the 1973 Act in terms whereof JDA was created. 23. The 1973 Act was enacted to make provisions 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 that town planning schemes are made in a proper manner and their execution is made effective; to constitute Town and Country Planning Authority for proper implementation of town and country development plan; to provide for the development and administration of special areas through Special Area Development authority; to make provision for the compulsory acquisition of land required for the purposes connected therewith. 24. "Commercial use" has been defined in Section 2(e) to mean "the use of any land or building or part thereof for the purpose of carrying on any trade, business or profession, or sale or exchange of goods of any type whatsoever and includes running of with a....
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.... Government shall be final." 29. Section 85 of the 1973 Act provides for rule making power. 30. The State of Madhya Pradesh in exercise of its power conferred upon it under Sections 58 and 85 of the 1973 Act made rules known as "Madhya Pradesh Nagar Tatha Gram Nivesh Vikasit Bhoomiyo, Griho, Bhavanotatha Anya Sanrachnaon Ka Vyayan Niyam, 1975". 31. Rules 3, 4, 5, 19 and 20 of the 1975 Rules which are material for our purpose read as under: "3. No Government land vested in or managed by the Authority shall be transferred except with the general or special sanction of the State Government given in that behalf. 4. All other land (hereinafter called the "Authority land") shall be transferred in accordance with the following rules. 5. Transfer of the Authority land shall be as under: a) By direct negotiation with the party; or b) By public auction; or c) By inviting tenders; or d) Under concessional terms. 19. The Authority may with the previous approval of the State Government lease out on concessional terms any authority land to any public institution or body registered under any law for the time being in....
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....law for the time being in force. Rule 20, however, provides that ordinarily no lease of land on concessional terms shall be allowed for the purposes other than charitable purposes such as for hospital, educational institutions and orphanages. 36. The right to transfer land on concessional terms, thus, is subject to two limitations, viz., (i) approval of the State is required therefor; and (ii) no lease on concessional terms shall be allowed for purposes other than charitable purposes such as hospital, educational institutions and orphanages; which implies that in a given situation a lease may be granted on concessional terms to any other institution but therefor sufficient and cogent reasons must be assigned. 37. The JDA, therefore, only had requisite authority to initiate the proceedings for grant of lease of land on concessional terms wherefor only the previous approval of the State was required to be taken. The State, except grant of previous approval to the proposal of the JDA and ultimate grant of lease of its land on concessional terms, has no other role to play. Disposal of the authority land is, thus, within the domain of the JDA, subject only to the previous approval....
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....eptitiously without making it public to the detriment of other similarly situated press owners. Thus, action of the respondents No. 1 & 2 in allotting the land to the respondent No. 3 to the exclusion of others is absolutely arbitrary illegal and discriminatory and the same is liable to be struck down." 42. In response to the said statements, the State in its counter affidavit averred: "The matter was referred to State Level Committee but the State Level Committee did not entertain the matter as the land in question was not a Nazul land and ultimately a decision was taken by the Government. There was no need or occasion to publish public. One who needed land could always approach the State Government and the State Government could decide the application on merits. No publicity was needed as suggested." 43. Thus, there appears to be some contradiction in the said statement. If the land in question was not Nazul land, question of exercising any jurisdiction thereover by the State in any manner whatsoever, does not arise. 44. It is also accepted that the land was allotted for the purpose of establishing a printing press and publication of newspaper. It is also curiou....
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....o development work will be commenced by you on the concerned land." 47. From the circular letter dated 1.3.1996, it is manifest that even on 1.3.1996, the quantum of premium and rent had not been fixed. It is only on 21st September, 1998, the decision of the State was communicated to JDA stating: "The Govt. of Madhya Pradesh has taken decision that the assessment of the premium for 20,000 sq. ft. land situated at Scheme No. 18 Civil Centre owned by Jabalpur Development Authority allotted by the order dated 30.12.95 passed by the Govt. of Madhya Pradesh to Dainik Bhaskar Press Jabalpur is to be made by extending concession of 50% rate of the market value of the land in the area. This amount will have to be deposited by Dainik Bhaskar Press at one time." 48. The authority by its letter dated 15.12.1998 fixed the value of the land at the rate of Rs. 255/- per sq. ft. on the basis of the then guidelines treating the rate for the allotted land for the financial year 1994-1995 treating it as industry. It is beyond anybody's comprehension as to how the value of the land could be fixed on the basis of the rate as was prevailing in the financial year 1994-95 although deci....
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.... Tankha to the effect that having regard to the concept of freedom of press, the newspaper industry should be considered to be a public utility in view of the decision of this Court in Oil and Natural Gas Commission (supra) cannot be accepted. Public utility has a definite connotation. Publication of a newspaper does not come within the purview of public utility services. 56. It may be true that newspaper industry has a great role to play in spreading political education and giving of ideas as has been held in Bennett Coleman & Co. and Others v Union of India and Others [(1972) 2 SCC 788] (followed in Indian Express Newspapers (Bombay Private Ltd. and Others v Union of India and Others, (1985) 1 SCC 641), but that would not mean that it would be entitled to allotment of land in contravention of a Town Planning Act. 57. If any preference is to be given to any public utility service, a policy decision therefor was required to be adopted by the J.D.A. if permissible under the statute and not otherwise. Even the State may not have a role to play in the matter under the Act General policy decision adopted by the State in absence of a provision of the statute, cannot ipso facto be ....
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....e State cannot usurp the jurisdiction of the Board itself. The Act does not contemplate any independent function by the State except as specifically provided therein. 60. The Development Plan was prepared in terms of the 1973 Act and the rules framed thereunder. Change of user, we have not been shown, is permissible under the Act or the Rules. In absence of such a provision and/ or without following the statutory requirements therefor, if any, the State in exercise of its executive power could not have directed that lands meant for use for commercial purposes may be used for industrial purposes. 61. In Friends Colony Development Committee v. State of Orissa and Others [(2004) 8 SCC 733], this Court observed: "In all developed and developing countries there is emphasis on planned development of cities which is sought to be achieved by zoning, planning and regulating building construction activity. Such planning, though highly complex, is a matter based on scientific research, study and experience leading to rationalisation of laws by way of legislative enactments and rules and regulations framed thereunder. Zoning and planning do result in hardship to individual prope....
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....ief Minister was the appropriate authority to take a decision in this behalf. We have noticed hereinbefore that the purported policy decision is in respect of the lands belonging to the State and not those belonging to the J.D.A. The said policy decision applies to the entire State of Madhya Pradesh. It is not appreciable in relation to such lands which come within the purview of any Scheme framed under the Act. It was issued by the Revenue Department under Revenue Book Circular Four-1. Evidently therefor not decision has been taken by the State in terms of the provisions of the 1960 Act or the 1973 Act. The concerned Ministry was Ministry of Housing and Environment. The jurisdiction of the State while exercising the power to issue direction in this behalf is extremely limited as has been noticed by this Court in Rakesh Ranjan Verma and Others v. State of Bihar and Others [1992 Supp (2) SCC 343 at 348], U.P. State Electricity Board v. Ram Autar and Another [(1996) 8 SCC 506], Bangalore Development Authority (supra), para 55 and State of U.P. v. Neeraj Awasthi [2005 (10) SCALE 286]. 65. The Private Respondents herein complain of discrimination on the ground that persons similarly....
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....the JDA had issued a circular on 4.6.2003 to the Private Respondent herein asking him to deposit a sum of Rs. 26 lakhs. The said amount is said to have been deposited on 7.6.2003 whereupon a deed of lease has also been executed. 72. It is stated that the Municipal Corporation granted permission for construction of the building on or about 30.7.2004 subject to the conditions mentioned therein. A notice was issued on 11.7.2003 by this Court. It is stated that the Private Respondent has sent invoices for machines worth Rs. 2 crores for which a sum of RS. 10 lakhs have been paid by way of advance. Submission of Mr. Tankha, in the aforementioned situation, is that the equities between the parties should be adjusted. 73. We have noticed hereinbefore that on 11.7.2003 notice was issued in the matter. The counsel for Respondent was present on the said date. An order of status quo was present on the said date. The Respondent, therefore, had notice about the pendency o the special leave petition. It might have applied for and granted the permission for construction of building but we find no reason as to how without constructing any building, orders for delivery of machines should have....