TaxTMI 
TaxTMI 
2014 (5) TMI 1143
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....at Town Planning and Urban Development Act, 1976 (hereinafter referred to as the 'Act 1976') would be operative for the land other than the land covered by Section 20(2) of the Act 1976, though upheld the validity of Section 40(3)(jj) of the Act 1976. Civil Appeal Nos.1545-50 of 2001 have been preferred by the State of Gujarat against the same judgment raising the grievance to the same extent. Civil Appeal Nos.1551-56 of 2001 have been filed by the Ahmedabad Urban Development Authority (hereinafter referred to as `AUDA') against the same judgment passed in same cases alongwith Special Civil Application Nos.4859, 5934, 7476 of 1998 and 4271 of 2000. Civil Appeal No. 1864 of 2014 has been filed against the impugned judgment and order dated 9.10.2009 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No.10912 of 2009, wherein the matter stood disposed of in terms of the subject matter in appeals referred to above. In Transferred Case (C) Nos.12-13 of 2010, Writ Petition Nos.2879 and 2880 of 2009 had been filed by the tenure holders/petitioners before the High Court of Gujarat and as the same factual and legal issues are involved therein, the peti....
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....ue calculated on the date of issue of intention to frame a scheme, is not an adequate compensation. Further, it was not justified under the town planning scheme or the urban development to permit acquisition of certain percentage of properties of citizens for its disposal in the hands of public authorities for the purpose of raising its fund, even to be used for further development. Under the Act 1976, Section 40(3)(j) as it originally stood, provided for reserving only 10 per cent in the town planning scheme for providing housing accommodation to the members of the weaker sections. Therefore, the amendment by which the said area has been increased from 10% to 15% is not only unwarranted but also illegal. 3. Facts and circumstances giving rise to these matters are as under: A. In 1963, Ahmedabad Municipal Corporation (hereinafter referred to as the 'AMC') prepared and submitted a development plan under the Bombay Town Planning Act, 1964 (hereinafter referred to as "Bombay Act") whereby the lands of the respondents known as the 'green belt' were kept for open space and recreation. On 21.8.1965, the State Government sanctioned the development plan which came into force on....
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....High Court as far as the validity of the statutory provision is concerned, does not require any interference whatsoever but earmarking of the land to the extent of 50% without paying any compensation amounts to expropriation and in all circumstances percentage fixed by the statutory provisions is excessive. 6. On the contrary, learned counsel appearing for the state and statutory authorities have submitted that the judgments impugned have made the scheme unworkable as one tenure holder may get all infrastructure facilities while the adjacent neighbour may not get any facility at all. The area which can be taken away by the authority for sale to the extent of 15% relates to the total area covered by the scheme and not from each and every plot. 7. In order to properly understand the dispute herein, reference has to be made to various provisions of the Act 1976. The Preamble of the Act 1976 indicates that the purpose of the legislation is to consolidate and amend the law relating to the making and execution of development plans and town planning schemes in the State of Gujarat. Section 12 of the Act 1976 provides for proposals and reservations to be made in the development plan ....
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.... from the date of service of such notice the land is not acquired or no steps are commenced for its acquisitions, the designation of the land as aforesaid shall be deemed to have lapsed". Section 40(3) (j) & (jj)(a) of the Act reads as under: "(j) the reservation of land to the extent of ten percent; or such percentage as near thereto as possible of the total area covered under the scheme for the purpose of providing housing accommodation to the members of socially and economically backward classes of people. (jj) (a) the allotment of land from the total area covered under the scheme, to the extent of: (i) Fifteen percent for roads; (ii) Five percent for parks, playgrounds, garden and open space (iii) Five percent for social infrastructure such as schools, dispensary, fire brigade, public utility place as earmarked in the Draft Town Planning Scheme. (iv) Fifteen percent for sale by appropriate Authority for residential, commercial or industrial use depending upon the nature of development. Provided that the percentage of the allotment of land specified in paragraphs (i) to (iii) may be altered depending upon the natu....
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.... original plots, each of such plots being estimated in the manner provided in clause (f) of sub-section (1), then the amount of such excess shall be deducted in arriving at the costs of the scheme as defined in sub-section (1). Section 79 of the Act 1976 provides for contribution towards costs of scheme. Section 82 of the Act 1976 reads as under: Compensation in respect of property or right injuriously affected by scheme. The owner of any property or right which is injuriously affected by the making of a town planning scheme shall, if he makes a claim before the Town Planning Officer within the prescribed time, be entitled to be compensated in respect thereof by the appropriate authority or by any person benefited or partly by the appropriate authority and partly by such person as the Town Planning Officer may in each case determine: Provided that the value of such property or rights shall be deemed to be its market value at the date of the declaration of intention to make a scheme or the date of the notification issued by the State Government under sub-section (1) of section 43 without reference to improvements contemplated in the scheme, as the ca....
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....is also to be filled up and sent by the Town Planning Officer while preparing the final draft planning scheme as required under Section 52(3) and it puts him under an obligation to determine and record as under: "(i) The compensation payable to you under Section 80 (ii) Amount payable by you under Section 80 (iii) Estimated amount of the increment under Section 78 (iv) Amount of incremental contribution under Section 79 (v) The compensation under Section 82 (vi) Net amount of contribution (vii) Net amount payable to you" 12. The aforesaid provisions read conjointly gives a clear picture that the scheme is just like the consolidation proceedings as the land, belonging to various persons, covered by the scheme first be put into a pool and then the land be allocated for different purposes and, in such a way, after having all deductions for the purpose of either by way of acquisition of land under the Land Acquisition Act 1894 (hereinafter referred to as `Act 1894') or the land taken under the provisions of Section 40(3)(jj)(a) of the Act 1976, the loss and profit of individual tenure holder is to be calculated. After as....
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....s today has now specified various percentage of the land to be set aside for specific purpose, i.e. 15% for roads, 5% for parks, playgrounds etc., 5% for social infrastructure and 15% for sale for providing infrastructural facilities. There has only been an increase of 5% in the percentage of land that could be sold of by the appropriate authority as compared to an increase of 30% as contended by the respondents. The current provision now only specifies specific percentage of the land to be set aside for the specified purpose which was already provided for in the Act 1976 and there is no further reservation that is provided. II) Entry 18 of List II of the Constitution provides for legislative competence with respect to land i.e. rights in or over the land including land improvement. Entry 20 of Concurrent List of the Constitution deals with economic and social planning. Therefore, the State Legislature was well within its competence to specify the percentage of areas to be demarcated/used for the specified purpose. Further, a mere increase of percentage of land to be demarcated for a specific purpose can in no way said to be an excessive legislation. Section 91 of the Act ....
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....ous that Parliament omitted Article 31(2) altogether. However when the State exercises its power of eminent domain and acquires the property of private person or deprives him of his property for public purpose, concomitantly fixation of the amount or its determination be must in accordance with such principles as laid therein and the amount given in such manner as may be specified in such a law....." 17. In Ashutosh Gupta v. State of Rajasthan & Ors., AIR 2002 SC 1533, this Court held: "There must be proper pleadings and averments in the substantive petition before the question of denial of equal protection of infringement of fundamental right can be decided. There is always a presumption in favour of the constitutionality of enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles. The presumption of constitutionality stems from the wide power of classification which the legislature must, of necessity possess in making laws operating differently as regards different groups of persons in order to give effect to policies. It must be presumed that the legislature understands and correctly apprec....
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....ng a specific object and public purpose to be achieved. While as regards the determination of compensation it may be possible to apply the provisions of the Land Acquisition Act, 1894 with some modification as provided in the Schedule to the Act in the case of lands acquired either under Section 11 or under Section 84 of the Act, in the case of lands which are needed for the local authority under the Town Planning Scheme which authorises allotment of reconstituted plots to persons from whom original plots are taken, it is difficult to apply the provisions of the Land Acquisition Act, 1894. The provisions of Section 32 and the other financial provisions of the Act provide for the determination of the cost of the scheme, the development charges to be levied and contribution to be made by the local authority etc. It is only after all that exercise is done the money will be paid to or demanded from the owners of the original plots depending on the circumstances governing each case. If in the above context the Act has made special provisions under Sections 67 to 71 of the Act for determining compensation payable to the owners of original plots who do not get the reconstituted plots it c....
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....rally that wherever land is taken away by the government under a separate statute compensation should be paid under the Land Acquisition Act, 1894 only and if there is any difference between the compensation payable under the Land Acquisition Act, 1894 and the compensation payable under the statute concerned the acquisition under the statute would be discriminatory....." 21. In Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. & Ors., AIR 2003 SC 511, this Court held: "37. The words "so far as may be" indicate the intention of the Legislature to the effect that by providing revision of final development plan from time to time and at least once in ten years, only the procedure or preparation thereof as provided therein, is required to be followed. Such procedural requirements must be followed so far as it is reasonably possible. Section 21 of the Act, in our opinion, does not and cannot mean that the substantial right conferred upon the owner of the land or the person interested therein shall be taken away. It is not and cannot be the intention of the Legislature that which is given by one hand should be taken away by the other. 38. Section 21 does not envis....
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....lanning scheme provides for pooling the entire land covered by the scheme and thereafter re-shuffling and reconstituting of plots, the market value of the original plots and final plots is to be assessed and authority has to determine as to whether a land owner has suffered some injury or has gained from such process. Re-constitution of plots is permissible as provided under the scheme of the Act as is evident from cogent reading of Section 45(2)(a)(b)(c) and Section 52(1)(iii) in accordance with Section 81 of the Act 1976. By re-constitution of the plots, if anybody suffers injury, the statutory provisions provide for compensation under Section 67(b) read with Section 80 of the Act 1976. By this re-constitution and readjustment of plots, there is no vesting of land in the local authority and therefore, the Act provides for payment of non-monetary compensation and such a mode has been approved by the Constitution Bench of this Court in Shantilal Mangaldas (supra), 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 re-constituted plots. It does not predicate owners....
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.... State of West Bengal v. Mrs. Bella Banerjee & Ors., AIR 1954 SC 170; and Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC 564. More so, the judgments in P. Vajravelu Mudaliar v. The Special Deputy Collector for Land Acquisition, West Madras & Anr., AIR 1965 SC 1017; and Union of India v. The Metal Corporation of India & Anr., AIR 1967 SC 637, have been over-ruled by this Court in subsequent judgment. (See: Ishwari Khetan Sugar Mills (P) Ltd. etc.etc. v. The State of U.P. & Ors., AIR 1980 SC 1955). Thus, there is no fundamental right to hold property. But the right to compensation on compulsory acquisition is still available under the second proviso to Article 31A subject to the limitation as specified therein. However, we need not elaborate the same as the said averment is not argued before us. 28. Article 300-A of the Constitution though creates a human right being a constitutional provision, but is not a fundamental right. Article 300-A provides that no person can be deprived of his property except by authority of law. The Town Planning Act is definitely an authority of law by which a person is deprived of his property if we assume that the town planning scheme depriv....
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.... Act 1976 would need infrastructural facility and the original plot which is acquired would require to be re-constituted as a final plot and to make a building site. The settled legal proposition in respect of interpretation of statute is that the provisions of the Act have to be read as a whole and therefore the provision of Section 40(3)(jj)(a)(iv) for sale has to be read inconsonance/conjointly with the other statutory provisions and not in isolation. The sale upto the extent of 15% is from the total area covered under the scheme and not in respect of every plot of land. In order to generate financial resources for the development of infrastructure, the saleable plot for residential, commercial and industrial use are allotted by the appropriate authority. Similarly, while re-constituting the plots, final plot is offered to the original owner for its beneficial use. 31. The High Court has committed an error interpreting the provisions under challenge as it failed to appreciate that the provisions of the Town Planning Scheme in Chapter-V, no where indicate that the lands under Section 20 cannot be subject matter of the Town Planning Scheme. The interpretation given by the High ....
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....in which they had to complete their work. The legislature fixed upon this period as being a reasonable one in the circumstances obtaining at the time when the statute was enacted. We cannot further overlook the fact that modifications to the final development plan were not beyond the range of possibility. We cannot therefore hold that the limit of time fixed under s. 4 read with s. 11(3) forms an unreasonable restriction on the rights of a person to hold his property." (Emphasis added) 34. In Shantilal Mangaldas (supra), a Constitution Bench of this Court examined the scheme under the Act 1954 which was applicable earlier to the State of Gujarat wherein with respect of the land situated therein, the Borough Municipality of Ahmedabad declared its intention of making a town planning scheme vide resolution dated 18.4.1927 under the Bombay Town Planning Act, 1915, wherein the High Court of Gujarat had allowed the writ petition filed by the tenure-holders. This Court reversed the said judgment observing as under: "22. The following principles emerge from an analysis of Clauses (2) and (2A): compulsory acquisition or requisition may be made for a public purpose alone, and mus....
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....is notified is against the plain intendment of the Act................ The question that falls then to be considered is whether the scheme of the Act which provides for adjustment of the market value of land at the date of the declaration of intention of making a scheme against market value of the land which goes to form the reconstituted plot, if any, specifies a principle for determination of compensation to be given within the meaning of Article 31(2) ............. On the second branch of the argument it was urged that a provision for giving the value of land, not on the date of extinction of interest of the owner, but on the footing of the value prevailing at the date of the declaration of the intention to make a scheme, is not a provision for payment of compensation............... ...............The method of determining compensation in respect of lands which are subject to the townplanning schemes is prescribed in the Town Planning Act. There is no option under that Act to acquire the land either under the Land Acquisition Act or under the Town Planning Act. Once the draft town-planning scheme is sanctioned, the land becomes subject to the provision....
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....left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility. 39. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any compensation under the Act 1894, it cannot be allowed to be acquired indirectly on lesser payment of compensation as provided under the Act 1976. Thus, the judgment of the High Court to that extent is not sustainable in the eyes of law. 40. In the transferred cases, the resolution dated 16.5.2008 providing the extent of taking over the land to 50% has been challenged on the ground that in other similar schemes in Vadodara, the maximum land taken by the State/Authority had been only upto 30%. Therefore, the deduction to the extent of 50% of the total land of a tenure-holder is illegal acquisition or amounts to expropriation and not acquisition. It is further submitted by Shri Huzefa Ahmadi, learned senior counsel appearing for the petitioners in t....