TaxTMI 
TaxTMI 
2016 (11) TMI 1689
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....g out of SLP (C) No. 19012/2016), Civil Appeal No. 11335 of 2016 (Arising out of SLP (C) No. 16891/2016) and Civil Appeal No. 11336 of 2016 (Arising out of SLP (C) No. 16742/2016) J.S. Khehar And Arun Mishra, JJ. For the Appearing Parties : Tushar Mehta, ASG, Dhruv Mehta, Sushil Kumar Jain, Rakesh Dwivedi, Sr. Advs., Gaurav Agrawal, Siddharth Gupta, Abhikalp Pratap Singh, Abhishek Rai, Anupama D., Baldev Krishan Satija, Puneet Jain, Christi Jain, Abhinav Gupta, Pankaj Sharma, Manu Maheshwari, Pratibha Jain, Apoorv Shukla, Kunal Cheema, Yogesh K. Ahirrao, Neelmani Pant, Anagha S. Desai, Sanjay Kapur, Anmol Chandan, Priyanka Das, Akshay Girish Ringe, Manan Popli, Manoj Munshi, A.V. Rangam, Buddy A. Ranganadhan, D.V. Raghu Vamsy, Shivali Chaudhary, Sagar Suri, C.D. Singh, Anil Kumar Sharma, Praveen Chaturvedi, Mishra Saurabh, Sunny Choudhary, Ankit Kumar Lal, Pragati Neekhra and Akshay Chandra, Advs. JUDGMENT Arun Mishra, J. 1. Leave granted. 2. The appeals arise out of judgment and order dated 9.5.2016 passed by the High Court of Madhya Pradesh at Jabalpur and as against order dated 30.9.2010 passed by the Division Bench of the High Court of Madhya Pradesh at Indore....
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....anded over particular part of land to it for the purpose of BRTS corridor. For betterment of public transport system 225 low floor buses were also sanctioned by Sanctioning and Monitoring Committee of the Central Government. For BRTS corridor survey was undertaken by the Expert Committee of the Central Government namely Urban Mass Transit Council of Bhopal City. Plan was duly approved by the State Government and the routes were notified as per Plan by the State Transport Authority. Presently only 1.25 lakh passengers are getting the services of low floor buses. It is not in dispute that most of the BRTS corridor has been constructed and the route from Misrod to Bairagarh is under operation. Buses are plying continuously. The Appellants are land-holders in-between Misrod to Ampree Chouraha. The Master Plan was prepared under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Town & Country Planning Act) hereinafter referred to as 'the Act of 1973'. The Development Plan/Master Plan was prepared as per the provisions of Section 18 after inviting objections, suggestions. None of the Appellants had raised objection when the development plan was prepared. It was fina....
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....ection 56 of the Act of 1973. It was also submitted that in some of nearby areas the land is being acquired for link road under the Act of 2013 whereas Appellants are being discriminated with. Two different processes of acquisition under different Acts cannot be resorted to. It was also submitted that the provision contained in Section 306 fails to provide rational, reasonable principle for determination of compensation for deprivation of property of landowner. Right to property is recognized Under Section 300A and delayed payment of compensation leads to deprivation of property without reasonable process. Section 306 does not provide as to the time period within which compensation to be paid. Consequently, same is violative of Articles 14, 19 and 300A of the Constitution. It was submitted that the provisions contained in Section 306 be read down by incorporating the provisions of the Act of 2013 in the light of principles enshrined therein while correlating it with the provisions of Section 387 of the Act of 1956. It was also submitted that within the ken of Section 305 of the Act of 1956, Corporation has no right to enter and remove any part of the structure falling within buildi....
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....Section 305. Same cannot be said to be illegal or arbitrary in any manner as reasonable compensation is offered which may include FAR in appropriate cases and the provisions of the Land Acquisition Act are also applicable as provided Under Section 387. Thus the provisions cannot be said to be violative of Articles 14, 19, 21 and 300A of the Constitution of India. The action taken falls within the purview of Section 305 of the Act of 1956. 9. On behalf of the Appellants it was submitted by learned Senior Counsel that the provisions contained in Section 305 of the Act of 1956 are repugnant to the provisions contained in the Act of 2013. Compensation is not offered before taking possession. The provisions contained in Section 305 of the Act of 1956 is violative of the protection conferred under Articles 14, 19, 21 and 300A of the Constitution and repugnant to the provisions contained in Section 56 of the Act of 1973. It was also contended that on proper interpretation of the provisions contained in Section 305, the Corporation has no right to remove greater portion of the building or material portion of the projecting part unless it has been taken down or burned down or has fallen ....
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....al or other public funds; or (c) Which under the provisions of this Act becomes a public street; And includes- (i) The roadway over any public bridge or causeway; (ii) The footway attached to any such street; (iii) Public bridge or causeway, and the drains attached to any such street, public bridge or causeway; Section 5(55) "street" means any road, foot-way, square, court alley or passage, accessible, whether permanently or temporarily to the public, whether a thoroughfare or not; and shall include every vacant space, notwithstanding that it may be private property and partly or wholly obstructed by any gate, post chain or other barrier, if houses, shops or other buildings about thereon, and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid; and shall include also the drains on either side and the land whether covered or not by any pavement, verandah or other erection, which lies on either sid....
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....spect to public health, safety and convenience. Chapter XIII deals with public convenience, Chapter XIV-conservancy, Chapter XV-sanitary provisions, Chapter XVI-water-supply, Chapter XVII-general provisions with reference to drainage, water supply and water and other mains, Chapter XVIII with public health and safety, Chapter XIX with markets and slaughter places, Chapter XX-food, drink, drug and dangerous articles, Chapter XXI-restraint of infection; Chapter XXII-disposal of the dead. Part VI relates to lands, buildings and streets. Chapter XXIII deals with town planning. Section 291 mandates for town planning scheme. Section 292 contains the restriction on Corporation's power to undertake town planning scheme when any scheme under the Town Improvement Act has been formed for the area in question. Colonisation is dealt with in Chapter XXIII-A. Chapter XXIV deals with building control under the provisions of Section 293. There is restriction on construction without permission. Under Section 295 Commissioner has the power to refuse erection or re-erection of buildings. Section 296 contains the provision as to grounds on which site of proposed building may be disapproved. Section....
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.... this Act, and approved by the State Government; Section 2(u) "town development scheme" means a scheme prepared for the implementation of the provisions of a development plan by the Town and Country Development Authority and includes "scheme"; Section 2(w) "zone" means any Section of a planning area for which, under the development plan, a detailed zoning plan is prepared; 15. Regional planning is dealt with in Chapter III. State Government has the power to declare any area in the State to be a region for the purposes of the Act. Director is empowered to prepare regional plan Under Section 5. Section 7 provides for contents thereof. Section 8 provides for preparation of the same. Under Section 8, objections and suggestions are invited then Director has to consider them as per Section 8(2), afford a reasonable opportunity to all the persons affected thereby of being heard then the State Government may finalise the regional plan with or without modifications. Proviso to Sub-section (2) of Section 9 mandates that in case the State Government modifies the draft regional plan in that case State Government has to publish the same in the Gazette, invite objections and suggestions....
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....ning areas; (d) declare that the whole or part of the area constituting the planning area shall cease to be a planning area or part thereof. (3) Notwithstanding anything contained in the Madhya Pradesh Municipal Corporation Act, 1956 (No. 23 of 1956), the Madhya Pradesh Municipalities Act, 1961 (No. 37 of 1961) or the Madhya Pradesh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994), the Municipal Corporation, Municipal Council or the Nagar Panchayat or a Panchayat, as the case may be, shall, in relation to the planning areas, from the date of the notification issued under Sub-section (1), cease to exercise the powers, perform the functions and discharge the duties which the State Government or the Director is competent to exercise, perform and discharge under this Act. 17. Section 14 deals with preparation of development plan. Section 15 deals with the preparation of existing land use maps and once the existing land use map has been published Under Section 15, Section 16 puts restriction upon the user of the land for any purpose other than that indicated without permission in writing of the Director and no local authority notwithstanding anything contained in any other law, ha....
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....rd to the draft development plan, the following particulars, namely, (i) the existing land use maps; (i-a) the natural hazard prone areas with the description of natural hazards; (ii) a narrative report, supported by maps and charts, explaining the provisions of the draft development plan; (iii) the phasing of implementation of the draft development plan as suggested by the Director; (iv) the provisions for enforcing the draft development plan and stating the manner in which permission for development may be obtained; (v) approximate cost of land acquisition for public purposes and the cost of works involved in the implementation of the plan. (2) The committee constituted under Sub-section (1) of Section 17-A shall not later than ninety days after the publication of the notice under Sub-section (1), consider all the objections and suggestions as may be received within the period specified in the notice under Sub-section (1) and shall, after giving reasonable opportunity to all persons affected thereby of being heard, suggest such modifications in the draft development plan as it may consider necessary, and submit, not later than six months after the publication....
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....vided that the Director may, at its discretion, permit the continued use of land for the purpose for which it was being used at the time of the coming into operation of the development plan: Provided further that such permission shall not be granted for a period exceeding seven years from the date of coming into operation of the development plan. (2) Notwithstanding anything contained in Section 172 of the Madhya Pradesh Land Revenue Code, 1959 (No. 20 of 1959) every permission to divert land granted under that Section shall be subject to the provisions of this Act. (Emphasis added) 20. It is apparent that the development plan once prepared is binding upon the development authorities in the planning area as well as on the Municipal Corporation and other local authorities as the case may be. They cannot modify and permit the user in contravention thereof. In other words, restriction is imposed upon the owners on enjoyment of the property in violation of the development plan/regional plan, as the case may be. 21. Section 49 of the Act of 1973 deals with the town development schemes. Same has to be prepared under the umbrella of the regional plan and development plan. T....
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....Town and Country Development Authority. Within 3 years of preparation of town development scheme Under Section 50, the authority may acquire the land by agreement and in case that is not possible the State Government at the request of the authority may proceed to acquire the land under the provisions of the Land Acquisition Act. The town development scheme has to be executed by the authority within 3 years by acquiring the land in case it is necessary as per the provisions contained in Section 56. 23. It is apparent from the provisions contained in the Act of 1973 the three different provisions for preparation of regional plan, development plan (master plan) and town development scheme. The regional plan is prepared by the State Government. Development plan is prepared as per the provisions contained in Chapter IV, Sections 13 to 19 and once development plan has been finalized, it is binding on development authorities as well as the Municipal Corporation, Municipal Council and other local authorities functioning in the planning area. Town development scheme can be framed by the development authorities and it may declare its intention to do so with the prior approval of the St....
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....ssive expenditure of public money in the provision of roads, sewers, water supply or other public services; (i) regulating in the interest of safety, the height and position of proposed walls, fences or hedges near the corners or bends of streets; (j) limiting the number or prescribing the sites of new roads entering a highway maintained by the Government; (k) regulating, in respect of the erection of any building intended to be used for purposes of business or industry, the provision of accommodation for loading, unloading or fuelling vehicles with a view to the prevention of obstruction of traffic on any highway; and (l) a direction that in any street, portion of a street or locality specified in the scheme, the use of land for any purposes even though not involving the erection of building, shall not be inconsistent with the provisions of this Section with respect of buildings. (2) When a scheme has been drawn up under the provisions of Sub-section (1), the Commissioner shall give public notice of the scheme and shall therein announce a date not less than 30 days from the date of such notice by which any person may submit to the Commissioner in writing any objecti....
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.... any other action in contravention of any such scheme or of any Rule or byelaw made under the provisions of this Act. 292. Restriction on Corporation's power to undertake town planning scheme -Notwithstanding anything contained in Section 291, no town planning scheme shall be made by the Corporation for any area for which a scheme has been sanctioned under the provisions of Town Improvement Act. (Emphasis added) It is apparent that Section 292 of the Act of 1956 refers to Town Improvement Act which was in vogue in different areas of erstwhile Madhya Pradesh which has ultimately consolidated the different Acts into the M.P. Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act of 1960'). 25. The Act of 1960 provided for various improvement schemes Under Section 30. Section 31 of the Act of 1960 dealt with types of improvement schemes such as general improvement schemes, re-building, re-housing, street, deferred street schemes and development scheme. 10 types of schemes were provided Under Section 31. When scheme was proposed, consideration of representation was also provided. The State Government had the power to sanction, reject or return the....
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....s it thinks fit, allow any building to be set forward for the improvement of the line of the street. 27. It was submitted on behalf of the Appellants that for the exigencies contemplated in Clause (a) of Sub-section (1) of Section 305 when projecting part is external to the main building then notice can be issued at any time for removal of projecting part such as verandah, step or some other structure and in case projecting part is as provided in Section 305(1)(b) whenever projecting part is greater portion of such building or whenever any material portion of such projecting part has been taken down or burned down or has fallen down then only notice can be issued. No notice can be issued by the Corporation under the provisions of Section 305(1) for its removal. The word 'or' in Clause (b) in-between greater portion of such building and material portion is not disjunctive. First part of Clause (b) has to be read conjunctively with the latter part. Even if greater portion of such building and material portion of such projecting part is read disjunctively, the words used taken down, burned down, fallen down qualify both the exigencies provided in Clause (b). The word 'r....
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....9. In our considered opinion, it is clear that Section 305 deals with the power of Corporation to regulate line of buildings. If any part of the building falls within the regular line of a public street either existing or as determined for the future or beyond the front of immediately adjoining building, the Corporation may issue a notice either that part which is projecting or some portion of the part projecting, shall be removed or that when the building is rebuilt, the portion projecting shall be set back to and the portion of the land added to the street by such "setting back or removal", shall henceforth be deemed to be part of the public street and shall vest in the Corporation. The words 'that the part or some portion of the part projecting beyond the regular line' of the public street may be: (a) greater portion of such building which has not fallen down; or (b) that projecting part is verandah, step or some other structure external to the main building; or (c) whenever any material portion or such material part has been taken down, burned down or has fallen down. All the abovesaid exigencies are covered in the ken of Section 305(1). Section 305 only con....
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....own, it has to be set back and part which has not fallen down, has to be removed. The removal is contemplated even in the latter exigency of Clause (b) when material portion of such part has been taken down, burned down or fallen down, still some portion other than 'material portion' projecting in line may require removal which has not been taken down, fallen down or burned down. It is not that the expression that entire building projecting in regular line of public street has been taken down, burned down or fallen down. The expression in the latter part of Clause (b) is taken down, fallen down or burned down is not related to the entire projecting part. Thus the earlier part "whenever greater portion of such building" is projecting beyond the regular line of public street, has to be read with respect to a building which has not fallen down, taken down or burned down. The word 'or' in Section 305(1)(b) used between greater portion of such building or whenever any material portion of such building has to be read disjunctively. Nonetheless 'removal' is contemplated in all the exigencies. In case it has been taken down, burned down or fallen down, it may requir....
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....lso to remove the same. As such it was not necessary to repeat it once over again in the provisions contained in Section 305. 35. Section 309 deals with the provisions regarding building unfit for human habitation. In that eventuality certain procedure is specified. We find absolutely no ground to accept the submission that the procedure prescribed Under Section 309 or the provisions thereof should guide the interpretation of Section 305 and for similar reason the provisions contained in Sections 310 and 313 relating to dangerous building and removal of building material from any places in certain cases which may be considered harming or breeding places for riot or other source of danger or nuisance to the occupier, then a notice shall be required to be issued; and on failure the Commissioner is empowered to remove; whereas the provisions of Section 305 cast a mandate upon the Corporation to remove whatever is projecting beyond the regular line of public street. The intendment of the aforesaid provisions is different, hence render no help or guide so as to interpret the provisions of Section 305. In fact when all the provisions are considered, the interpretation of Section 305 i....
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.... possession and de facto possession. It was also submitted that mere vesting in the absence of specific substantive provision providing for taking over of possession forcibly, does not authorize any authority to take over the physical possession of any property. The decision in State of U.P. v. Hari Ram (supra) is quite distinguishable and is based upon the provisions contained in Section 10 of the Urban Land (Ceiling and Regulation) Act, 1976 (in short, "the Act of 1976"). Section 10(5) whereof provides after the land has vested to take possession by a notice. On failure to comply with the notice to hand-over possession Competent Authority may take possession Under Section 10(6) of the Act of 1976. Legal fiction of vesting has been taken into consideration and discussed by this Court in the said decision. This Court has laid down that while the meaning of the legal fiction has to be ascertained for what purpose it is created and should be carried as far as necessary to achieve the legislative purpose, the word 'vest' in a statute has different meaning in different contexts. This Court has also held that "vest/vested" therefore may or may not include transfer of possession,....
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....d", therefore, may or may not include "transfer of possession", the meaning of which depends on the context in which it has been placed and the interpretation of various other related provisions. Though in the context of Section 10 of the Urban Ceiling Act and provision of taking possession, this Court in Hari Ram (supra) has laid down that "vesting" Under Section 10 takes in every interest in the property including de jure possession and not de facto but it is always open to a person to voluntarily surrender and give possession Under Section 10(3) of the Act, which is not the position in the instant case as held by us in removal of the building Under Section 305 of the Act of 1956, it is implicit that once removal is made, vesting follows and possession stands transferred as part of public street. When we consider the deeming fiction in Section 305 and vesting provision, de jure and de facto possession automatically vested in the Corporation on the happening of the exigencies as provided in Section 305. 39. It was submitted on behalf of Appellants that there is a conscious omission in the provision contained in Section 305 with respect to the power of entry, removal or to ta....
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....rt has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him "jurisprudential interpretation is purely cognitive ascertainment of the meaning of legal norms. In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law". "The purely cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law". According to the author if law is to be applied by a legal organ, he must ....
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.... Vemuganti Ramakrishan Rao and Ors., (2013) 8 SCC 789 which are the cases in which the court has supplied omissions, the same is based upon the principle of true intent of the Legislature and in order to give effect to the said intent, the courts can supply words which appear to be accidentally omitted or if the literal construction would in fact do violence to the legislative objective. For that, three conditions must be satisfied before this course can be adopted: (i) that the intended purpose of the statute is not being achieved by literal construction of the statute; (ii) that by inadvertence the draftsmen and Parliament failed to give effect to that purpose in the provision; and (iii) the substance of the provision Parliament would have made an be known with precision, though not in exact language, had the error in the bill been noticed. 43. There is no dispute with the principles laid down by this Court in the aforesaid dictums. However the language of Section 305 is plain, simple and clear. In our opinion there is no defect in the phraseology used. The exigencies when the notice can be issued including the vesting part and deeming fiction are very clear. In view of afores....
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....legal fiction. In re: Section 78/79 of the Act of 1956 and Section 56 of the Act of 1973: 46. It was also submitted that when the provisions of the statute are plain and unambiguous, court shall not interpret the same in a different manner only because harsh consequences arise therefrom and the authority should be asked to acquire the land as per the provisions contained in Section 79 of the Act of 1956. Section 305 is required to be harmoniously construed along with other provisions within the constitutional limitations. Reliance has been placed on a decision of this Court in Nasiruddin v. Sita Ram Agarwal, (2003) 2 SCC 577. 47. It was also submitted on behalf of the Appellants that when Under Section 56 of the Act of 1973 land has been acquired for town development scheme by development authorities, the power cannot be treated to be with the Corporation to vest the property in the public street without its acquisition under the provisions of Section 305 of the Act of 1956 without acquisition Under Section 79 thereof. It is necessary to notice the provisions contained in Sections 78 and 79 of the Act of 1956 and Section 56 of the Act of 1973. The provisions contained in S....
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.... or easement shall vest in the Corporation. (3) When any land is required for a new street or for the widening or improving of an existing street, the Commissioner may proceed to acquire, in addition to the land to be occupied by the street, the land necessary for the sites of the building to be erected on both sides of the streets, and such land shall be deemed to be required for the purposes of this Act." Section 56 of the Act of 1973 is extracted hereunder: "56. Acquisition of land for Town and Country Development Authority. - The Town and Country Development Authority may at any time after the date of publication of the final town development scheme Under Section 50 but not later than three years therefrom, proceed to acquire by agreement the land required for the implementation of the scheme and, on its failure so to acquire, the State Government may, at the request of the Town and Country Development Authority proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 (No. 1 of 1894) and on the payment of compensation awarded under that Act and any other charges incurred by the State Government in connection with the acquisition, the land sha....
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....ritten notice from the other of claim to such compensation or damages, or if the members fail to select a Sarpanch, such members as may be necessary to constitute the Panchayat shall be appointed, at the instance of either party, by the District Court. (3) In the event of the Panchayat not giving a decision within one month or such other longer period as may be agreed to by both the parties from the date of the selection of the Sarpanch or of the appointment by the District Court of such members as may be necessary to constitute the Panchayat, the matter shall, on application by either party be determined by the District Court which shall, in cases, in which the compensation is claimed in respect of land, follow as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court: Provided that- (a) no application to the Collector for a reference shall be necessary, and (b) the court shall have full power to give and apportion the costs of all proceedings in manner it thinks fit. (4) In any case where the compensation is claimed in respect of land and the Panchayat has given a decision, eith....
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....any part of the building beyond the regular line of a "public street"; whereas the provisions contained in Section 79 is with respect to a new street or for widening or improving an existing street. There is difference when there is a public street line, the special provision contained in Section 305 is attracted. The recourse to the provisions of acquisition Under Sections 78 and 79 is clearly ousted by the special provision contained in Section 305 of the Act of 1956. Being a special provision with respect to maintaining a regular line of a public street which has been carved out by the Legislature Under Section 305 of the Act of 1956, would prevail upon the general provisions with respect to acquisition of land as provided in Sections 78 and 79 thereof. 50. In "The Principles of Statutory Interpretation" by G.P. Singh, 13th Edn. 2012, Chapter 2 in which it has been laid down that inconsistency and repugnancy to be avoided and provisions should be harmoniously construed, the author has observed thus: It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to mak....
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.... 1988 SC 1737, p. 1751: 1988 (4) SCC 59; State of Rajasthan v. Gopikishan, supra, p. 1756. See further Life Insurance Corporation of India v. S.V. Oak, AIR 1965 SC 975, p. 980: 1965 (1) SCR 403 (Compulsive provision will control a discretionary provision]. The question as to the relative nature of the provisions general or special has to be determined with reference to the area and extent of their application either generally or specially in particular situations. [Collector of Central Excise Jaipur v. Raghuvar (India) Ltd., JT 2000 (7) SC 99, p. 111; (2000) 5 SCC 299: AIR 2000 SC 2027] The principle is expressed in the maxims Generalia specialibus non derogant, [General things do not derogate from special things. Osborn's Law Dictionary] and Generalibus specialia derogant [Special things derogate from general things. Osborn's Law Dictionary]. If a special provision is made on a certain matter, that matter is excluded from the general provision.[Venkateshwar Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828: (1966) 2 SCR 172; CIT, Patiala v. Shahzada Nand & Sons, AIR 1966 SC 1342, p. 1347: (1966) 3 SCR 379; State of Gujarat v. Patel Ramajibhai Danabhai, AIR 1979 SC 1098, p. 1....
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.... 306 is not acceptable, dissatisfied claimants can have resort to Section 387 which require determination of dispute by Panchayat/arbitration, and in case arbitration fails, parties can approach the District Court which shall follow the procedure provided in Land Acquisition Act, 1894. The provision of Section 387 is very wide and covers all the cases in which an agreement is not arrived at with respect to compensation or damages which are under the Act directed to be paid. Section 387 would cover the provisions of compensation payable Under Sections 305 and 306 of the Act of 1956. Sections 305 and 306 use the expression 'reasonable compensation has to be paid' which would mean, reasonable on the principle acceptable in accordance with law. It cannot be fanciful or arbitrary one as suggested by the Appellants. 52. The submission raised by the Appellants that for acquisition of land, Sections 78 and 79 should be resorted to for the purposes mentioned in Section 305 cannot be accepted for yet another reason, if the provision as to public street is made dependent upon the acquisition of land, the very purpose behind the provisions of Section 305 would be frustrated as well ....
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....R would be suitable as part of compensation and what would be the impact of conversion of FAR into TDR i.e. Transferable Development Right. Compensation in monetary terms is claimable Under Sections 305, 306 and 387. Thus, when recourse to Section 305 is made by the Corporation, it is not necessary to make acquisition Under Section 78 or 79 of the Act of 1956. 54. Provision of Section 56 of the Act of 1973 has also been pressed into service to contend that the authorities under the Act of 1973 are also required to acquire the land by agreement or under the provisions of the Land Acquisition Act for carrying out the purpose of development plan as such, this Court should record a conclusion that the provisions of Section 78/79 of the Act of 1956 should be resorted to. Reliance has been placed on Afjal Imam v. State of Bihar and Ors., (2011) 5 SCC 729 wherein this Court has considered the basic Rule of harmonious construction, when cross reference of relevant provisions should be made and in order to reconcile two apparently inconsistent provisions, one can be read as "subject to" the other and if necessary reading down of the provisions has to be made. We do not find any substa....
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....urpose, which term stands defined in the preceding Section 3(f). A conjoint reading of Sections 17 and 3(f) makes it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition of land is for companies; however, we must be quick to add that this question does not arise before us. 16.4. Fourthly, possession of such lands would vest in the Government only when the foregoing factors have been formally and strictly complied with. This Section enables the curtailment of a citizen's constitutional right to property and can be resorted to only if the provisions and preconditions are punctiliously and meticulously adhered to, lest the vesting be struck down and set aside by the court in its writ jurisdiction, on the application of Taylor v. Taylor (1875) LR 1 Ch D 426 and several judgments of this Court which has followed this decision (supra). There is no dispute with the aforesaid propositions but in the instant cases the specific procedure prescribed for widening of the public street to remove the projection in the regular line of public street has been adopted which is a wholesome procedure. Thus there is no violation of law as the ....
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.... can claim adjudication Under Section 387 where the procedure of the Land Acquisition Act, 1894 is applicable. 58. It was submitted in Bhopal Municipality matters that in the absence of a scheme having been framed Under Section 50 of the Act of 1973, the provisions of Section 305 of the Act of 1956 could not be invoked, prior statutory exercise Under Section 291 thereof is necessary which has also not been done. Attention has also been drawn to paragraphs 5.17, 5.18 and 5.19 of W.P. No. 5682 of 2016. In para 5.17 it has been pleaded that if it is held that any existing street will be treated as building line by the Commissioner, Municipal Corporation or for that matter that the building line determined by the Commissioner shall be the final building line for the purpose of Section 305 then on that ground also Section 305 would become arbitrary, discriminatory and violative of Article 14 of the Constitution. It is reiterated in para 5.17 that there has to be the building line determined only after following the procedure and rigors of Section 291. Again in para 5.18 non-compliance with the provisions of Section 291 has been pleaded. In para 5.19 it has been pleaded that until the....
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....d Municipal Institutes are regulating and restricting the use of private property under the aforesaid Acts. They are "expropriatory legislation". Thus they are liable to be construed strictly as laid down in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemicals Ltd. and Ors., (2007) 8 SCC 705. In the said case the decision in Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chennai and Ors., (2005) 7 SCC 627 has been referred to, wherein this Court has considered the question and laid down thus: 59. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chennai, (2005) 7 SCC 627 construing Section 5A of the Land Acquisition Act, this Court observed: (SCC pp. 634-35, para 6-7) 6. It is not in dispute that Section 5A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise 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 pur....
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....y without its owner's consent on account of public exigency and for the public good. Eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity. It gives the right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest requires it. The term 'expropriation' is practically synonymous with the term 'eminent domain'. It was further observed: (SCC p. 627, para 48) 48. The word 'property' used in Article 300A must be understood in the context in which the sovereign power of eminent domain is exercised by the State and property expropriated. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase 'deprivation of the property of a person' must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by Parli....
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....Court in Chairman, Indore Vikas Pradhikaran (supra) wherein a question arose with respect to the declaration made Under Section 50(2) of the Act on the ground that unless a development plan for an area is published and comes into operation, a draft development scheme cannot be published by the Development Authority Under Section 50(2) of the Act of 1973. This Court observed that the area in question with respect to which the scheme had been framed Under Section 50 had not been properly included in the area of operation of the development authority under the Act of 1973 as such the action taken by way of its intention to frame a town planning scheme or otherwise was wholly illegal, without jurisdiction and a nullity. This Court also held that a draft development plan which has not attained finality cannot be held to be determinative of the rights and obligations of the parties and can never be implemented and end use of the land is not frozen until a final sanction plan comes into force. This Court also held that the power to freeze the land use Under Section 50(1) read with Section 53 of the Act of 1973 can only be validly exercised for implementing a final sanctioned development p....
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....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 finalising 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 finalised 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. 72. Land use, development plan and zonal plan provided fo....
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....the manner of usage of the land at the micro level. This Court has also emphasized that development plan to be implemented should be final development plan. The very scheme of the Act postulates that in case development plan has been prepared, may require for such development plan micro planning wherever it is necessary and there may be certain areas where no micro planning is contemplated in view of the specific provisions contained in the development plan such as width of the road etc. which has been determined finally. Once the final development plan does not require micro exercise and is in force, it is not open to the development authority to redo that exercise Under Section 49/50 while preparing the scheme at micro level as it is not authorized to alter/modify the said provision of the development plan as it has no power to alter or modify the width of the road or building line as fixed in the development plan and is bound to carry out the same. For such matters which do not require micro-planning, it would not be necessary to undertake exercise of Section 49 read with Section 50, publish a draft plan, Under Section 50(3) invite objections and suggestions and to decide the sa....
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....s of the land of the Appellants cannot be allowed to sustain. 67. The town development scheme is always subservient to the master plan as well as the zonal plan, as provided Under Section 17 of the 1973 Act, which reads as under: 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 (19 of 1995) in which the planning area is situated.... 68. Master plan falls within the category of broad development plans and is prepared 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 plans.--The local authority may on its own motion at any time after the publication of the development plan, or thereafter if so required by the State Government shall, within the next six months of such requisition, prepare a zoning plan. Further, Section 21 of the Act reads thus: 21. Contents o....
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.... not contemplate a zonal plan, and which contemplates "DP-TP. There is no dispute with the law laid down by this Court and town planning scheme has to be subservient to development plan/zonal plan. Development plan which does not require micro planning is binding and can be implemented. In re: Vires of Sections 305 and 306 of the Act of 1956: 64. It was submitted that exercising the power for acquiring land by following the procedure Under Sections 305 and 306 suffers from arbitrariness and thus violative of Articles 14 and 19 of the Constitution of India. Reliance has been placed on the decision in Suraj Mall Mohta & Co. v. A.V. Visvanatha Sastri and Anr., AIR 1954 SC 545. In the said case the provision of Section 5(4) of the Taxation on Income (Investigation Commission) Act, 1947 was struck down on the ground of being violative of Article 14. Submission advanced was that it gave arbitrary power to the Commission to pick and choose and the Clause was highly discriminatory in character inasmuch as any evasion whether substantial or insignificant came within its ambit as well as within the purview of Section 34 of the Indian Income Tax Act. This Court has observed that it i....
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....ejudiced, as there is no indication as to how much compensation they would receive Under Section 305, 306 of the Act of 1956. Therefore the regime of Act of 1956 is completely discriminatory in nature. From the aforesaid pleadings it cannot be made out that the other area where acquisition is made, is a case of public street Under Sections 305 and 306, it relates to construction of link road by the Capital Project Administration where acquisition will be required. It is not pleaded in the aforesaid paragraph that the other area is falling in the regular line of public street as per development plan, in the absence of such pleadings, it is not open to the Appellant to raise the plea of discrimination at all. Even otherwise we have found provisions of Section 305/306 to be fair, just and reasonable and merely because for other places some other procedure has been resorted to, cannot be a ground to urge discrimination. Hence, the submission based upon the dictum of this Court in Nagpur Improvement Trust (supra) has no legs to stand. 66. Reliance has also been placed on the decision in P. Vajravelu Mudaliar v. The Special Deputy Collector, West Madras, AIR 1965 SC 1017. In the sa....
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....icy. Statute providing for no compensation, nil compensation or illusory compensation must be just, fair and reasonable in terms of Articles 14, 19(1)(g), 21, 26(b), 30(1-A) and other provisions of the Constitution. This Court also considered distinction between no compensation and nil compensation and pointed out onus to establish validity of law in such cases lies on the State. Court cannot however based merely on its own opinion, strike down such a law or statutory provision. It was further held that the right to compensation cannot be read into Schedule VII List III, Entry 42 which is not ambiguous at all. The statutes depriving a person of his property are subject to judicial review by constitutional courts on the grounds laid down by this Court. It was held that the concerned Karnataka State Act having received the Presidential assent Under Article 31A was immune from challenge under Articles 14 and 19. This Court also laid down that when the validity of acquisition of property is questioned, grounds for challenge to a statute enacted to acquire property but the statute is not protected by Articles 31A, 31B and 31C of the Constitution of India, after deletion of Article 19(1)....
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....onate to the situation or excessive. 191. The legislation providing for deprivation of property Under Article 300A must be "just, fair and reasonable" as understood in terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case, courts will have to examine the scheme of the impugned Act, its object, purpose as also the question whether payment of nil compensation or nominal compensation would make the impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above. 193. Right to property no more remains an overarching guarantee in our Constitution, then is it the law, that such a legislation enacted under the authority of law as provided in Article 300A is immune from challenge before a constitutional court for violation of Articles 14, 21 or the overarching principle of the Rule of law, a basic feature of our Constitution, especially when such a right is not specifically incorporated in Article 300A, unlike Article 30(1-A) and the second proviso to Article 31-A(1). 194*. Article 31A was inserted by the First Amendment Act, 1951 to protect the zamindari abolition laws and also the other types of social, welfare and reg....
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.... laid down that adequacy of compensation cannot be questioned before a court of law but at the same time compensation cannot be illusory and that there cannot be a situation of no compensation to a person who is deprived of his property. The Court held that awarding no compensation attracts the vice of illegal deprivation of property. This Court has laid down that when the State exercises power of acquisition of private property it can take possession of the private property for public purpose. It does not require payment of market value or indemnification to the owner of the property expropriated. Payment of market value in lieu of acquired property is not a condition precedent or sine qua non for acquisition. Adequacy of compensation cannot be questioned in a court of law but at the same time compensation cannot be illusory. In Rajiv Sarin (supra), this Court has laid down thus: 78. When the State exercises the power of acquisition of a private property thereby depriving the private person of the property, provision is generally made in the statute to pay compensation to be fixed or determined according to the criteria laid down in the statute itself. It must be understood in ....
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....ions contained in Sections 305, 306 and 387 of the Act of 1956 cannot be said to be violative of the aforesaid principles laid down by this Court in the said decision as the amount of compensation payable has been specified and the principles regarding the same have been fairly culled out. 70. The provisions of the Act of 1956 cannot be said to be violative of the principles or dictum laid down by this Court in the aforesaid decisions rather qualify to them and cannot be said to be violative of Articles 14 and 19. The provisions of Sections 305 and 306 cannot be read in isolation. It has to be read with wholesome provision of Section 387 and what is contemplated Under Section 387 has to be taken to be the principle of reasonable compensation even in Sections 305 and 306. Monetary value has to be worked out and it can be balanced with FAR in appropriate cases which is quite reasonable method of arriving at compensation as discussed hereafter. 71. It was submitted by the Respondents that with respect to the principle of determination of compensation, a Constitution Bench of this Court has considered more or less similar provision contained in Sections 212 and 216 of the Bombay ....
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.... 8. Chapter XXIV of the Act deals with the subject of compensation generally. Section 389(1) provides as follows: 389. (1) In the exercise of the powers under the following provisions of this Act by the Commissioner or any other municipal officer or servant or any other person authorised by or under this Act to execute any work, as little damage as can be shall be done and compensation assessed in the manner prescribed by or under this Act shall be paid to any person who sustains damage in consequence of the exercise of such powers, namely,.... (f) acquiring any building or land required for a public street--Under Section 216. Section 390 is as follows: Subject to the provisions of this Act, the Commissioner or such other officer as may be authorised by him in this behalf shall, after holding such inquiry as he thinks fit, determine the amount of compensation to be paid Under Section 389." This determination, however, is not final because two appeals are provided. Under Section 391 it is provided as under: Any person aggrieved by the decision of the Commissioner or other officer Under Section 390 may within a period of one month, appeal to the Judge in accordance wi....
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....6". The two Sections read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of power Under Section 212. Under the latter Section what is acquired for the purposes of the street is the land of the owner which falls within the regular line of the street. Several provisions are made in Chapter XIV for the widening of streets within the limits of the Corporation. With the enormous increase in traffic in the more congested parts of a growing City, Municipal authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in Section 212. The regular line of the street as prescribed Under Section 210 often passes through the properties of owners abutting on the streets and it is impossible to widen the streets unless parts of lands belonging to the owners are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. T....
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....ain contingencies compel the owner to pay the Corporation something out of his own pocket. When Sub-section (1) provides for payment of compensation for the loss suffered it provides for adequate indemnification or compensation. When such compensation is reduced in the contingencies visualized in the two provisos the compensation, it was submitted, may turn out to be illusory and the provision for the payment of compensation an empty assurance. Proviso (1) prescribes that "any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation". Proviso (ii) states that "if any such increase in the value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge". Proviso (i) implies that the compensation payable under Sub-section (1) is liable to be increased or reduced after the set-back. It envisages that by reason of the set-back or the widening of....
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....he Act does not make provision for the payment of compensation for the property acquired. We have, therefore, no hesitation in agreeing with the High Court that the Corporations Act provides for the payment of compensation for the property acquired Under Section 212. 15. The next question is whether the Act specifies the principles on which and the manner in which compensation is to be determined. The High Court has been of the view that neither principles for determination of compensation nor the manner of its determination has been specified and that is the ground on which it has held that the provisions of Section 212 are unconstitutional. We are unable to agree with that view. What is meant by specification of principles for determining compensation? In State of Gujarat v. Shri Shantilal Mangaldas and Ors., (1969) 1 SCC 509, this Court observed: Specification of principles means laying down general guiding Rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of 'market-value' of the land on the date of the notification Under Section 4(1) of that Act. That is a specification of prin....
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....owner of the building or other interests in the property. We have referred to the provisions with regard to appeals. The first appeal lies to the Judge of the Small Causes Courts and a second appeal to the District Judge. The involvement of civil courts in finally determining compensation imports judicial norms. Since full indemnification in accordance with judicial norms is the goal set by the Act it is implicit in such a provision that the Rules for determination of compensation shall be appropriate to the property acquired and such as will achieve the goal of full indemnity against loss. In other words, the Act provides for compensation to be determined in accordance with judicial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation. 16. As regards the manner of determination of compensation, it is provided in Section 390 of the Corporations Act. Under that Section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and d....
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....he line of the street, the land actually acquired by the Corporation may be in some cases a few square yards or even a few square inches. Then again the land acquired may be of no significant use to anybody except for the Corporation as a part of the street. The land acquired may be of different shapes, irregular in contour and often shapeless. If the principle of willing buyer and willing seller is applied there can possibly be no market at all for the property acquired. This Court opined that the owner gets full indemnification for the loss or deprivation suffered to the building or other interests in the property. Involvement of civil courts in finally determining compensation imports judicial norms. There is no limitation on the power of the appellate Judge. Thus this Court held that the provisions contained in Sections 212, 216 and 389 were not violative of the provisions of Section 299 of the Government of India Act, 1935 or Article 31 of the Constitution. The case was remanded by this Court to the High Court for examining infringement of Articles 14 and 19 after laying down the aforesaid propositions. We have on merits found no violation of Articles 14 and 19 also in the ins....
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.... of 80% of compensation before taking possession of the land. The said provision is not at all attracted to the Act of 1956. As compensation is offered after vesting, is quite reasonable procedure as envisaged by Article 300A of the Constitution of India, at which point of time it is offered would not make the provision confiscatory or repugnant. The compensation Under Section 305 or 306 read with Section 387 is on the happening of certain exigency, and various factors are taken into consideration for determination of compensation is a quite valid procedure. The Corporation cannot be compelled as per the special scheme of Sections 305, 306 and 387 to offer the compensation before removal and vesting. Reliance on the decision in K.N. Palsikar (supra) so as to contend that the possession should be taken after payment of compensation is totally misplaced. This Court has simply narrated in para 11 what was held by the High Court and the points which were decided were capsulised by this Court in para 12 of the report. The aforesaid question was neither raised nor decided by this Court. This Court has not laid down any such proposition in K.N. Palsikar (supra), as canvassed. 75. Relia....