JUDGMENT
Sunil Kumar Sinha, J.
(1) These appeals are directed against a common judgment dated 15.04.2013 passed in a batch of writ petitions namely-W.P(C) No. 6280 of 2010 and other connected matters, in all 23 writ petitions, including the writ petitions filed by the appellants herein. By the impugned judgment, all the writ petitions, filed by the appellants and other petitioners, challenging the validity of Kamal Vihar Town Development Scheme No. 4 (Scheme/TDS) on various grounds, have been dismissed by the Writ Court.
(2) The facts, briefly stated, are as under:-2.1 Raipur Development Authority (RDA) has been duly established u/S 38(1) of the M.P (C.G) Nagar Thatha Gram Nivesh Adhiniyam, 1973 (Adhiniyam/Adhiniyam 1973.Act, 1973). The above Town Development Scheme (TDS) has been planned by the RDA discharging its functions under Sub-section (2) of Section 38. It covers five villages namely-Dunda, Boriya Khurd, Tikrapara, Deopuri and Dumartarai. 2.2 The said scheme has a total project area of 647.84 Hect., out of which the area available for development is 610.46 Hect., in which 482.29 Hect. is private land and 128.17 Hect. is government land. The position of the land(s) in question would be clear from the following table which we mark as
Table-I:
Table-I PARTICULARS OF TDS-4 (KAMAL VIHAR)
S. No.PARTICULARSAREA1Total Project Area647.84 Hect.2Land Area Available for Development610.46 Hect.3Total Private Land482.29 Hect.4Total Government Land128.17 Hect.5No. of Land Owners4969482.29 Hect.6LAND CONFIRMATION4302440.51 Hect.7AGREEMENT FOR LAND ISSUED FROM PLANNING SECTION3904398.77 Hect.8MONEY CONFIRMATION291.42 Hect.9Money Received against land40.148 Hect.10CLA AWARD54328.17 Hect.11CLA (Award awaited)9516.71 Hect.12LAND TRANSFERRED TO RDA (Through Agreements)2553167.52 Hect.13LAND UNDER LITIGATION IN HIGH COURT IN APPEALS612.52 Hect.
2.3 According to the development plan, in the above area of 647.84 Hect. further areas have been marked for recreational land, roads and lanes and other miscellaneous infrastructure like, educational, hygienic and various public purpose amenities which would be clear from the following table which we mark as Table-II:
Table-II
Area Analysis of TDS-4 (Kamal Vihar)
S. No.PARTICULARSAREA1.Total available Scheme Area under TDS-4647.84 Hect.2.Area under Recreational land use
(a) City Park
(b) Regional Park
(c) Water Bodies25.43 Hect.
103.98 Hect.
0.83 Hect.3.Area under Roads
(a) RDP 2021 road
(b) TDS 4 roads [i/C road over canal]
(c) TDS 4 internal sector roads54.12 Hect.
19.50 Hect.
94.61 Hect.4.Misc.
(a) Community open spaces
(b) Graveyard/cremation grounds
(c) Approved Layout & Existing construction
(d) Bus Stand38.52 Hect.
3.27 Hect.
37.38 Hect.
0.32 Hect.
377.965.Net area available for allotment [647.84-377.96] Hect.
(a) Residential
(b) Area reserved for EWS
(c) Commercial (i) CBD
(ii) Commercial Belts
(iii) Sector Level/Local Shopping centre
(e) PSP
(f) Sector Level (i) Health
(ii) Schools
(g) Composite269.88 Hect.
188.91 Hect.
32.15 Hect.
8.02 Hect.
2.31 Hect.
5.83 Hect.
16.81 Hect.
2.40 Hect.
5.75 Hect.
7.70 Hect.6.Total Area available for allotment -
(a) Area allotted to land holders -
(b) Land Pool for Infrastructure Development-(c) Area reserved for EWS269.88 Hect.
178.38 Hect.
59.35 Hect.
32.15 Hect.
2.4 The broad features of the Scheme would show that there shall be 15 Sectors and the estimated cost of development of infrastructure would be Rs. 1085 crores. The Government has agreed to hand over its land to the RDA and the land belonging to the private owners are to be taken over by the consent or by acquisition u/S 56 of the Act. The RDA has planned to return the developed reconstituted plots to the private land owners and it shall not charge any contribution cost/incremental cost from them with a view to not saddle with any financial burden on the land holders.
2.5 The various amenities proposed to be given in the development plan are four lane main roads of 75 meters/45mts/30mts width; two lane roads of 24 mts/18 mts; with other infrastructure, including street light, service duct, underground drainage, green area, foot-path, cycle track, water supply, sewerage treatment plant, central business district and 30 meters wide commercial tract, abutting ring road etc.
2.6 The RDA has planned to give about 35% area of developed plot to the land owners and the remaining area of their undeveloped plot would be retained which may go to the other land owners or which may be utilized for the above facilities under the Development Scheme.
2.7 According to the RDA, 15% of the developed plots have also been reserved for Economically Weaker Section (EWS) which comes about 32.15 Hect.
2.8 Out of total 4969 private land owners, 39 land owners did not agree to the Scheme/procedure adopted and preferred above 23 writ petitions on various grounds which were dismissed, thereafter, these six Writ Appeals have been filed by the 13 land owners.
(3) We have heard counsel for the parties.
(4) Learned counsel for the appellants have firstly contended that there was no zoning plan, therefore, in absence of zoning plan, preparation of town development scheme (TDS) would stand vitiated.
(5) To appreciate the said argument, we shall have to look into the broad features of Adhiniyam 1973. The very purpose of Adhiniyam 1973 is to make provision 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 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 make provision for the compulsory acquisition of land required for the purpose of the development plans; and to make legal provisions for connected incidental matters. CHAPTER III of Adhiniyam deals with regional planning and makes provision for establishment of regions, survey of the area concerned, preparation of regional plans etc. Section 2(q) defines “regional plan” which means a plan for the region prepared under this Act, and approved by the State Government. CHAPTER IV of Adhiniyam deals with planning area and development plan with a provision of publication of draft development plan under Section 18 after its preparation under various other provisions of CHAPTER IV. We may note that under the said process a Committee constituted under Section 17-A has to consider and suggest modifications and alterations in the draft development plan and to hear the objections after publication of the draft development plan under Section 18. It is after this stage, the sanction of development plan has to be taken from the State Government under Section 19, which may either approve the development plan or may approve it with such modifications as it may consider necessary or may even return it to modify the same or to prepare a fresh plan in accordance with such directions as it may deem appropriate. The development plan shall come into operation from the date of publication of notice under sub-section (4) of Section 19 and from such date it shall be binding on all development authorities constituted under the Adhiniyam and all local authorities functioning within the planning area.
(6) It is after this stage, comes the stage of preparation of zoning plan which has been defined in CHAPTER V. Whether preparation of a zoning plan is condition precedent for preparation of a town development scheme (TDS) under Section 50 of the Adhiniyam would be clear from the provisions of Sections 20 & 21. Section 20 of Adhiniyam deals with preparation of Zoning plans and provides that 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 six months of such requisition, prepare a Zoning Plan. What would be the contents of zoning plan have been described in Section 21(1). The use of word ‘may’ in Section 20 makes it clear that it would be on the local authority in all its wisdom to think about preparation of a zoning plan and thus the intention of legislature is that the above provision so far as local authority is concerned, is not mandatory for it, however, if the requirement is felt by the State Government, the local authority shall be bound by it to prepare a zoning plan because in second limb of Section 20 word ‘shall’ has been used opposing the word ‘may’ in the first limb. We are fortified in our views by the plain rule of interpretation that the use of word ‘may’ at one place and ‘shall’ at another place in the same section may strengthen the inference that these words have been used in their primary sense and that ‘shall’ should be construed as mandatory. That apart, ‘may’ is held in all soundness of construction to confer a power but the word ‘shall’ is held to make that power, or the exercise of that power compulsory. (Vide: Principles of Statutory Interpretation by Justice G.P Singh, Sixth Edition 1996 p. 261).
(7) In Section 20, firstly word ‘may’ has been used so far as discretion of the local authority is concerned, thus if the local authority would be of opinion that a zonal plan should be prepared, it may do so and it is not a mandatory requirement, but if it is felt by the State Government that a zoning plan is necessary and directions are issued, a zoning plan has to be prepared and no further discretion would lie with any authority because the second part of Section 20 uses the word ‘shall’.
(8) It also does not appear to be mandatory for the local authority because Section 21 makes an indication that the zoning plan shall enlarge the details of land use as indicated in the development plan and shall further indicate the land liable to acquisition for public purpose etc., define in detail and provide for areas reserved for agriculture, public and semi public open spaces, parks, playground, gardens, recreational areas, green-belts and nature reserves; allocate in detail areas or zones for residential, commercial, industrial, agricultural and other purposes; define and provide the road and streets and indicate about the other infrastructure and amenities proposed under the development plan. That is to say that if in the opinion of the local authority or the Government it is felt that the development plan requires further clarification on the details of land use etc., it may be directed to be done under the zoning plan. This makes it clear that it would depend on the facts and circumstances of each case as to whether the preparation of a zoning plan is essential or not and if it is essential, it has to be prepared which would contain the above details. We are fortified in our view by the decision in Sanjai Gandhi Grah Nirman Sahkari Sanstha Maryadit v. State of M.P, AIR 1991 Madhya Pradesh, p.72. Thus it is clear that preparation of a zoning plan is not a mandatory condition for preparation of a town development scheme under Section 50 of the Adhiniyam 1973.
(9) It was next contended that there is no scientific basis for giving 35% developed plot and the decision is arbitrary. It was also contended that the said action is in contravention of Section 50(6)(vi) of the Adhiniyam.
(10) The objection relating to 35% developed plot was dealt with by the Committee constituted under sub-section (5). In Chapter IV of the report dated 8.6.2010 (Annexure-R-3/2), the Committee has discussed about the shape of the reconstituted plots. We find in the report that for this purpose, the provisions of Chhattisgarh Bhumi Vikas Niyam, 1984 and National Building Code of India, 2005 were considered. This scheme is a self finance scheme and the Government has decided not to take any monetary charge for the infrastructure development which includes various facilities which we have mentioned earlier. The contents of Table-II (supra) would show that out of 647.84 Hect., the land available for allotment is only 269.88 Hect. That is to say that 377.96 Hect. have been proposed for infrastructure development which includes city park, regional park, water bodies, various roads, community open spaces, graveyard/cremation ground, bus-stand etc. Apart from that 10% has been kept in developmental pool and 15% has been kept reserved for EWS. Therefore, developed land available for allotment appears to be about 35% of the total land area. The committee has also quoted the provisions of Avas Niti, 1995 which talks about giving option to the land owners for taking 20% developed land of their original land area or their land may be acquired under the Land Acquisition Act, 1894. It was held that this process may be applicable for all developmental agencies. In the instant case 35% developed plots are not being given to all the land owners uniformly. Reconstituted plots which are being given are in between 35% to 58% on the uniform slab based on original land area and no one has been given less than 35%. The recommendation of the committee would show that it has considered almost all the objections regarding developed plot area and its shape and size. Thus, the 35% arrived at is not baseless and is based on the policy of the State and other statutory provisions of National Building Code of India, 2005 and Chhattisgarh Land Development Rules 1984. We may further note that this Court does not sit as an Appellate Authority over the decision of the expert committee. Unless the decision is shown to be malafide or contrary to any law or utterly perverse, it has to be taken as correct (Vide: Greater Kailash Part II Welfare Assn. v. DLF Universal Ltd(2007) 6 SCC 448).
(11) It was argued that after deducting 35% from the original plot area, the area lost by the land owner would be 65%, therefore, the contribution exceed 50% which is in violation of Section 50(6)(vi) of the Adhiniyam. The above provisions, we quote, says to evaluate the increment in value of each reconstituted plot and assess the development contribution leviable on the plot holder. On analysis of classified percentage of the developed plots, we find that 15% plots are reserved for EWS. This cannot be said to be coming under development contribution because the said plots or the monetary value thereof are not being retained by the RDA. What is not to exceed more than 50% is the development contribution leviable on the plot holder. Thus if we add this 15% to the 35%, in general manner it would come to 50% of the total original land area and in this way the argument relating to exceeding 50% towards developmental contribution must fail. Making allotment for EWS is a public purpose and the town planning authority is not prohibited in law from providing the plots to the persons belonging to the said Section (Vide: Kiritbhai Nandvadan Bhatt v. Ahmedabad Municipal Corporation, 1996 (1) G.L.H 905). It was argued that the RDA cannot serve the public purpose by snatching plots of the land holders without authority of law. The submission appears to be attractive in general sense, but in the instant scheme the situation is different. Here the planning is not only on the contribution of the lands by private land holders. In this planning (Scheme) 128.17 Hect. of government land has also been added and the lands of the private land holders and the government land have been brought into hotchpotch within the fore-corners of the Adhiniyam and then only the arrangement for EWS has been made. It appears to be quite reasonable. Thus it cannot be said that the developmental contribution of the private land holder has exceeded more that 50% and there is violation of Section 50(6)(vi) of the Adhiniym.
(12) It was next contended by counsel for the appellants that the master plan has been changed; jurisdiction under Section 23-A has been wrongly exercised; it is contrary to Section 23-A; the development plan comes first and thereafter the scheme has to be framed; therefore, the entire scheme vitiates. Reliance was placed on Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke & Chemical Ltd., (2007) 8 SCC 705.
(13) To appreciate the argument, we shall firstly look into some important dates. Initially master plan 2011 was enforced and the resolution was passed by the RDA on 21.3.2006 for a residential scheme in village Dunda. Thereafter memo of land use in villages Dunda, Boriya Khurd and Tikrapara was sent on 8.5.2006 On 31.7.2006 RDA wrote a letter to the Special Secretary, Urban and Housing Department requesting for permission of publication u/S 50 for integrated township scheme for villages Dunda, Tikrapara, Boriya Khurd and Deopuri with a request to change the land use u/S 23-A. On 18.5.2007, Director, Town and Country Planning replied to the letter dated 3.5.2007 giving permission for publication u/S 50. On 25.1.2008, the Government granted permission to RDA for publication of the revised scheme u/S 50 which was a proposal for 416.93 acres. Thereafter the revised master plan (2021) got sanctioned and published on 7.4.2008 Then various correspondence for granting permission to publish declaration of intention u/S 50(1) were made and ultimately on 5.6.2009 notification was published in the official gazette regarding the intention to prepare town development scheme for 416.93 acres. Thereafter on 14.7.2009 RDA passed a resolution for changing the earlier proposal of 416.93 acres and increased it for an area of 2300 acres in villages Dunda, Tikrapara, Boriya Khurd, Dumar Tarai and Deopuri. Official correspondence were made between RDA and the State Government and then it was granted on 10.8.2009 and thereafter a notification u/S 50(2) for amended scheme was published in the official gazette on 4.9.2009 Thus, it is not a case in which the scheme was published prior to publication of the master plan. The dates mentioned by us would show that the master plan was published first and thereafter the scheme was published.
(14) Section 13(1) of the Adhiniyam provides that the State Government may, by notification, constitute planning areas for the purposes of the Adhiniyam and define the limits thereof. Planning area, as per Section 2(o) therefore, has to be declared by exercising powers u/S 13. Then after completion of formalities, a draft development plan has to be prepared and ultimately after sanction the draft development plan has to be published which shall come into operation from the date of its publication u/S 19(5)(4) and from date of publication it shall be binding on all development authorities constituted under the Adhiniyam and all local authorities functioning within the planning area. The development is a continuous phenomena. It can never be stopped. Therefore, finality has not been attached to a development plan by the Legislature in all its wisdom and Section 19(5)(4) only talks about its binding nature. It is for all these reasons, the Legislature has provided Sections 23 & 23-A so that any need felt after finalization of the development plan, which would also include the inclusion/extension of planning area may be fulfilled. Thus Section 23 & 23-A are enabling Sections by which the development plan or zonal plan can be reviewed and modified. Thus, it cannot be accepted that the development plan/master plan cannot be changed.
(15) The case of Indore Vikas Pradhikaran, cited by the counsel for the appellants, is distinguishable on facts. In the said case two villages were not coming within the planning area, but the town development scheme was made, therefore, it was held that the concerned authority has no power to make such scheme in respect of two villages. That apart, it was observed that there cannot be town development scheme without a final development plan. In case on hand, there was a final development plan before the declaration of initiation of scheme by RDA. The dates would clearly show that on this account the scheme does not vitiate.
(16) Arguing the above points, attack was also made on certain modifications in the scheme which took place after 14.7.2010 These modifications were in relation to change of land user u/S 23-A. Three important changes in land user in the master plan 2021 were proposed by the RDA. First was where the major part of land at one place was going in residential and the minor part was going in agricultural. Here it was sought that the minor part of agricultural be added to the major part of residential. Second was where the major part of the land at one place was going in agricultural and minor part was going in residential. Here it was proposed that the minor residential part be also placed in major agricultural part. Third was change of land user of the area reserved for educational purpose by making change in location and adding said area for residential purpose. It was argued by State counsel and counsel for RDA that this was proposed to make plan workable so that the land of one species of agricultural or residential come at one place. So far as permissibility to do it under the law is concerned, as we have already held, there was no difficulty. The question relates to its genuine necessity and public welfare. According to the scheme of Sections 23 & 23-A, primarily, these factors for judging would be in domain of concerned authority or State Government as has been provided under these Sections. We are guided by language of both the Sections which clearly convey that all this was permissible for urgent public purpose. Explanation to Section 23-A makes it clear that for the purpose of this section ‘public purpose’ includes creation, development and maintenance of human settlements or any part thereof. The Explanation is inclusive, therefore, it has to be taken in a broad sense keeping in mind the immediate necessity which would be beneficial to the people at large and making the scheme workable in public interest. If the lands of one species are kept in one place making area embarked enlarged, it cannot be said as unreasonable. It's a matter of common knowledge that many times, agricultural work in a small piece of land which is surrounded by large residential locality is not fruitful. Likewise a small piece of land for residential purpose surrounded by agricultural land may not be suitable for the residents who would always like to be among the community. That apart, we must mention that so far as the present appellants are concerned, none of them has a land coming within the area wherein the above modifications were sought by the RDA. Moreover the modifications sought were hardly affecting 8% of the total land area of the town development scheme which would be further minimized because some part of proposal was ultimately not sanctioned.
(17) It was also argued that there was no urgent public purpose. Section 54 of the Adhiniyam provides that if the Town and Country Development Authority fails to commence implementation of the Town Development Scheme within a period of two years or complete its implementation within a period of five years from the date of notification of the final scheme under section 50, it shall, on expiration of the said period of two years or five years, as the case may be, lapse. Therefore, the respective implementations have been restricted within the specified period and a town development scheme has to be completed in scheduled time frame. We have already held that change in said land user was for public purpose. Therefore, invocation of jurisdiction u/S 23-A was exercised for the purpose of completion of the scheme within specified time period and save it from lapsing and the need was an urgent public need. Moreover, no fruitful purpose would be served in remitting the matter to the initial stage because in absence of any legal impediment it would a mere formality and would adversely affect the interest of public at large whose lands have already been taken and who would be waiting for the developed plots because a delay is also likely to be caused in adopting such process. We are of the view that for the foregoing reasons, the argument advanced by the counsel for the appellants cannot be accepted.
(18) It was next contended that there was violation of procedure as stated u/S 23-A(2). Two points were raised in this regard. First, notices were not published continuously for two days in the local newspapers; and second, modified plan was not published along with notices in the newspapers and at conspicuous place, thereby violating the mandatory provisions.
(19) It is an admitted position that the notice of draft modification plan was published in two daily newspapers on 5.11.2010 and 7.11.2010 Learned counsel for the appellants have contended that there was a gap of one day in publication of the notices, therefore, it cannot be held as the said notices were published continuously for two days as contained in Section 23-A(2). They have relied on Bhopal Citizens' Forum v. State of M.P, 2011 (1) M.P.L.J 51. Learned State counsel has argued, and it is also factually correct, that 6.11.2010 was holiday on account of Dipawali Festival and the two newspapers in which the notices were published, were not published on 6.11.2010 In Bhopal Citizens' (supra), it was held that the provisions of Section 23-A as amended by the Amending Act, 2005, are intra vires and it was also held that manner of requirement of publication of notice contained in Section 23-A(2) is mandatory in nature. There is no dispute about the above legal position. However, in the said case, as we find from Para-28, the context was that the publication was made only once and there was no second publication at all. But, in case on hand, the publication was made on two days and so far as requirement of publication on two days in two daily newspapers is concerned, there is no violation. The question is whether the publication on 5.11.2010 and 7.11.2010 when the newspapers were not published on 6.11.2010 on the eve of Dipawali, would be held as continuous publication or not? The learned single Judge has dealt with this ground in Para-23 of the impugned judgment, and referring to the decision of S.E and Stamping Works Limited v. The Workmen, AIR 1963 SC 1914, has held that it shall be treated that the notification was published on two continuous days. We have carefully examined the reasons for holding like that and we find it to be correct and logical. The words used like ‘continuously for two days’ in sub-section (2), if given plain meaning in the facts and circumstances of the case, would mean that two days of continuous dates of publication of the newspapers. If the newspapers were not published on the second day and the third day's publication was in continuation of the first day's publication, it would be treated that the notice was published on two continuous days and argument advanced by counsel for the appellants must fail.
(20) For the next argument we note that in the newspaper, khasra numbers, village name and the proposed modifications were mentioned and it was also mentioned that the draft development plan is open for inspection and any aggrieved person can inspect it in the Office of Collector, Raipur; Joint Director, Town and Country Planning, Regional Office, Raipur; Chief Executive Officer, RDA and Commissioner, Municipal Corporation, Raipur. It was also clearly mentioned in the notice about submission of Objections etc. For ready reference, we quote the relevant portion of the concerned notification:-
It is thus clear that the modified plan was made available for inspection of public at large at conspicuous places as per Section 23-A(2).
(21) It was next contended that the notification date 4.3.2011 was in violation of Article 166 of the Constitution as it was not duly authenticated by Governor. Learned counsel for the State has contended that the practice prevailing since the erstwhile State of Madhya Pradesh is that if there are more than one notifications published on the same day, they are printed in continuation and after the last notification it is mentioned that they were issued in the name of and by order of Governor and signature of the concerned Secretary is appended. Various notifications were shown to us which were published in the above fashion in the concerned Gazette. It appears to be a long past practice prevailing in the State. In Iftikhar Ahmed Son of Dost Mohammad v. State of Madhya Pradesh, AIR 1961 MP 140), it was held that when several notifications appeared together in the Gazette under the signature of the Under Secretary at the end of the series, there is no illegality and there is proper authentication of all such notifications. Moreover, the memo issued for publication would show that it was issued by the order and on the name of the Governor. Thus argument relating to improper authentication of the notification fails and the same is rejected.
(22) Learned counsel for the appellants have next contended that the lands of private owners are being taken without payment of compensation and without valid transfer of title.
(23) Learned counsel for the respondents have opposed these arguments and have referred to the provisions of Sections 49 & 56 of the Adhiniyam. The State counsel has also referred to the decision of State of Gujarat v. Shantilal Mangaldas, AIR 1969 SC 634.
(24) Section 49 of the Adhiniyam provides that a town development scheme may make provision for any of the following matters:-
(i) acquisition, development and sale or leasing of land for the purpose of town expansion;
(ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum;
(iii) acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres, administrative centres;
(iv) acquisition and development of areas for commercial and industrial purposes;
(v) undertaking of such building or construction work as may be necessary to provide housing, shopping, commercial or other facilities;
(vi) acquisition of land and its development for the purpose of laying out or remodeling of road and street patterns;
(vii) acquisition and development of land for playgrounds, parks, recreation centres and stadia;
(viii) reconstruction of plots for the purpose of buildings, roads, drains, sewage lines and other similar amenities;
(ix) any other work of a nature such as would bring about environmental improvements which may be taken up by the authority with the prior approval of the State Government.
(25) Section 56 of the Adhiniyam gives power to the Town and Country Development Authority for acquisition of land. It provides that after the date of the publication of the final town development scheme under section 50, but not later than three years therefrom, the said Authority may proceed to acquire by agreement the land required for the implementation of the scheme. It further provides that if the said Authority fails to make acquisition in the above manner, the State Government may proceed to acquire such land under the provisions of the Land Acquisition Act, 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 shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed. Thus, there are two modes of acquisition as per the statute. One by agreement and other by general law of acquisition under the Act, 1894. So far as compensation is concerned, it would be mandatory if the acquisition is under the general law that is under the Act 1894 and in such case the land in question shall vest in the Town and Country Development Authority making it to be clear case of vesting under the law. So far as acquisition by agreement is concerned, there is neither vesting nor transfer of title, therefore, the Adhiniyam does not provide for a compensation in such cases. In the instant case, the developed plots have been proposed to be given to the land holders and who are not agreeable to it, have been given option to take monetary value.
(26) In Shantilal (supra), it was observed with reference to Bombay Town Planning Act that in making a Town Planning Scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town Planning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public purposes. Reconstituted plots are allotted to the landholders. The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land. Their shape and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town Planning Officer may lay out new roads, divert or close existing roads, reserve lands for recreation grounds, schools, markets, green belts and similar public purposes, and provide for drainage, lighting, water-supply, filling up or reclamation of low-lying, swamp or unhealthy areas or leveling up of land so that the total area included in the scheme may conduce to the health and well-being of the residents. Since the Town Planning Scheme is intended to improve the sanitary conditions prevailing in a locality, the owners of plots are required to maintain land open around their buildings. The object of the scheme being to provide amenities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generally reduced, for they have to contribute out of their plots, areas which are required for maintaining the services beneficial to the community. It was further observed that in this process the whole or part of a land of one person, may go to make a reconstituted plot, and the plot so reconstituted may be allotted to another person and the lands needed for public purposes may be earmarked for those purposes. It was further held, in light of Section 53 of the Bombay Act, that it does not provide that the reconstituted plot is transferred or is to be deemed to be transferred from the local authority to the owner of the original plot. In terms Section 53 provides for statutory readjustment of the rights of the owners of the original plots of land. There is no vesting of the original plots in the local authority, nor transfer of the rights of the local authority in the reconstituted plots.
(27) On the above analogy, as we have said in case of acquisition by agreement, there is no question of transfer of the title nor there is vesting of the land in the RDA. It is a simple re-adjustment of the rights of the owners of the original plots of land, which is not prohibited under any provisions. When the source of such acquisition is clearly provided u/S 56, there cannot be a challenge on this account particularly by persons (appellants herein) whose lands have not been acquired in the above manner. We have been told by respondent's counsel that all the private land owners except the above 13 appellants have agreed for acquisition by agreement and land acquisition proceedings under the Act 1894 have been initiated against the appellants. It was also stated by them that now Hemant Chhatri (appellant in W.A No. 381 of 2013) has also entered into an agreement with the RDA. In light of the above facts and circumstances, we find no force in the said arguments and the same has to be rejected.
(28) Learned counsel for the appellants have next contended that the RDA has not taken development permission u/S 28 of the Adhiniyam, therefore, the entire development scheme vitiates. Reliance was placed on Sections 27 & 28.
(29) The argument is totally misconceived. Section 27 talks about the development undertaken on behalf of Union or State Government. It provides that when the Union Government or the State Government intends to carry out development of any land for the purpose of its departments or offices or authorities, the officer-in-charge thereof shall inform in writing to the Director the intention of the Government to do so, giving full particulars thereof, accompanied by such documents and plans as may be prescribed atleast thirty days before undertaking such development. Likewise Section 28 provides for Development by Local Authority or by any authority constituted under the Adhiniyam, 1973. According to this Section, where a Local Authority or any authority specially constituted under this Adhiniyam intends to carry out development on any land for the purpose of that authority, the procedure applicable to the Union or State Government under section 27 shall, mutatis mutandis, apply in respect to such authority. Thus, these provisions talk about the development of land for the purpose of concerned authorities/departments/officers thereof. In the instant case, though RDA is an authority for the purpose of Section 28, but the development scheme has not been prepared for the purpose of the RDA. Therefore, the provisions of these Sections would not apply to the present scheme/acquisition. In the instant case, the provisions of Sections 49 & 50 would be applicable which are self contained in all respects giving a clear mode of acquisition for public purpose and any town development scheme prepared u/Ss 49 & 50 would not be subject to the permission referred to in Sections 27 & 28 because the nature of scheme and acquisition under these two sections are quite different than that reflected in Sections 27 & 28.
(30) It was next contended by the counsel for the appellants that amendment brought in Section 50 enacting a new sub-section i.e 50(8) without assent of the President is illegal and incompetent, therefore, the amending provisions are ultra vires and actions taken under the said provisions vitiate.
(31) The said argument was vehemently opposed by the counsel for the respondents on the ground that the amending provisions were not challenged in any writ petition; the said argument was never raised before the single Bench; even there are no averments in the memo of appeals relating to vires of Section 50(8), therefore, the said argument cannot be entertained and the validity of the amending provisions cannot be examined in these appeals.
(32) State Government vide C.G Act No. 22 of 2010 brought amendment and made following provisions with effect from 6.9.2010:-
50(8)(i) Where a town development scheme has come into operation, all lands required by the Town & Country Development Authority for the purposes specified in following clauses:-
(a) Layout of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of streets and roads and discontinuance of communications, etc.;
(b) Drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal;
(c) Lighting;
(d) Water supply;
shall vest absolutely in the Town and Country Development Authority free from all encumbrances.
(ii) Nothing in sub-section (i) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.2
(33) The vires of the above amendment was not challenged by the appellants in their writ petitions. No relief relating to such declaration was claimed by them. There is no pleading in the writ petitions challenging the constitutional validity of the said Act on any ground. Even there is no averment in the memo of appeals. It is for the first time the arguments have been advanced by the counsel for the appellants raising singular contention that the assent of President was not taken for the Amending Act and the Amending Act was brought with the assent of the Governor.
(34) Let us firstly remember the basic principles that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon person who challenges the constitutionality to show that there has been a clear transgression of the constitutional principles. Thus the burden of proving all the facts which are requisite for the constitutional validity is upon the person who challenges the constitutionality (Vide: Chiranjit Lal Chowdhuri v. Union of India, AIR 1951 SC 41; Cf. Rao Shiv Bahadur Singh v. State of U.P, AIR 1953 SC 394 and Ramarao v. All India Backward Class Bank Employees Welfare Association, AIR 2004 SC 1459). Where the constitutional validity of a provision is not under challenge, the Court will have to proceed on the basis that the same is intra vires and interpret the same as such (Vide: Molar Mal v. Kay Iron Works (P) Ltd., (2000) 4 SCC 285).
(35) Pressing the above argument by counsel for the appellants attracts the doctrine to collateral challenge. In a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the decision exists in law at all and rely upon incidents and effect of its “non-existence”. Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and which has some presumptive existence, validity and effect in law. Such a decision can be invalidated by the right person in right proceedings brought at the right time. It is only a nullity stemming from lack of inherent jurisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defence even against enforcement (Vide: Pankaj Bhargava v. Mohinder Nath, (1991) 1 SCC 556). Here the matter relates to existence of an Act which is ex facie valid unless declared invalid in a proper proceeding on proper foundation laid down by the concerned party and the same principle would apply. We are of the opinion that no law which is valid ex facie carrying presumption of its correctness and validity can be invalidated in an incidental proceeding in light of the Doctrine of collateral challenge. That apart, there are restrictions on the appellate jurisdiction when pleadings etc. have never been raised. Thus, we do not wish to express our views on the above argument on merit and we declined to entertain the said argument raised for the first time in these intra court appeals without any foundation for the same.
(36) It was next contended that Environmental Clearance was not obtained from the appropriate Authority. It was contended that looking to the area of the project; Environmental Clearance was required from the Central Government.
(37) Mr. Desai has contended that it was a project falling under Category B-1 project; therefore, Environmental Clearance was required from the State Level Environment Impact Assessment Authority (SLEIAA), which was duly obtained.
(38) A perusal of the record would show that Environmental Clearance was obtained from SLEIAA vide its order dated 25.01.2011 The notification issued by the Ministry of Environment and Forest (MOEF) dated 14.09.2006, which is not disputed by both the parties, two categories of projects were formed namely-Category ‘A’ and Category ‘B’. For Category ‘A’ project, clearance has to be obtained from the Central Government, whereas, for Category ‘B’ project, it has to be obtained from the SLEIAA. In classification, the instant project is covered under Clause VIII (b) of the notification as it covers an area of more than 50 hectares for Township and is a Category B-1 project. Thus, it cannot be said that Environmental Clearance was not obtained from the appropriate Authority or it was a case in which, Environmental Clearance from the Central Government was required. Moreover, we find that the Central Government, in its return filed in one of the Writ Petitions (WP(C) No. 6040/2011), has stated on oath that the project has been duly cleared by appropriate Authority. In view of the above facts situation and particularly in the light of the notification dated 14.09.2006 as also in the light of categorical admission of the Central Government, it cannot be held that proper Environmental Clearance was not obtained from the concerned Authority.
(39) It was also contended in Writ Appeal No. 393/2013 that the land of the appellants, which is situated at a distance of 1.5 km from the remaining area of the project, has been included with malafide intention. This point has been dealt with by the writ Court vide para 48 of the judgment. The writ Court has mentioned factual aspects in this paragraph, including that the appellants' land is connected with the Scheme area through the Highway. It has been observed by the writ Court that the cluster of land in question, which is covered under Sector 14-B and 15-C of the sanctioned lay-out plan of the Scheme, belongs to as many as 19 land owners. Thus, it was not a case that only the land of the appellants, situated at a distance of 1.5 km, has been singled out for inclusion in the Scheme.
(40) That apart, we also note that even in the draft scheme, the said area was shown and no objection was filed to the effect that this area was included in the draft scheme malafidely or intentionally as it is now contended by the appellants.
(41) In Babulal Badriprasad Verma v. Surat Municipal Corporation(2008) 12 SCC 401, it was held that if no objection was raised before the Committee in respect of the draft scheme, the petitioners are estopped from raising such contentions before the writ Court. It is on these grounds, the writ Court has not entertained the said objection. We have carefully gone through the contents of the record. Since no such objection was raised by the appellants before the appropriate Authority, they would be estopped from challenging the inclusion of their land on the grounds of malafide, which they have raised for the first time before the writ Court and the writ Court has rightly refused to entertain their grounds.
(42) Learned counsel for the appellants have also contended that the RDA was not competent to sale the developed plots, which they have kept in ‘land pool’.
(43) The contention of the respondents is that 10% developed plots, which have been reserved as ‘land pool’, have to be sold because the Committee has taken a decision not to recover the amount of incremental development contribution. Their argument was that the Authority can only generate the amount from sale of the land, which are kept in ‘land pool’, for the purpose of providing infrastructural facilities. We note from the Scheme that no development cost is being incurred from the land owners and the same is being borne by the Authority. The infrastructural facilities, which are being provided, are, roads, drainage, water supply, electricity, recreation centres, Bus stand and almost all other amenities, which are required for a well-developed residential area.
(44) The question is whether the RDA was competent to do so and if it can do so, whether the quantum of ‘land pool’ is reasonable?
(45) Section 49 (supra) provides that a town development scheme may make provision for various matters included therein. Clause (i) of Section 49 clearly provides that the Scheme may make provisions for acquisition, development and sale or leasing of land for the purpose of town expansion. Clause (iii) further provides for acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres and administrative centres. Likewise, Clause (viii) provides for reconstruction of plots for the purpose of buildings, roads, drains, sewage lines and other similar amenities. A conjoint reading of these Clauses of Section 49 and various other Clauses, would show that there is noting in the Act which may prohibit an Authority to sale or lease out the land which may include a developed land under the land development scheme. On the contrary, the provisions appear to be enabling. Thus, there can be hardly any doubt in saying that the Authority has jurisdiction to sale the developed land.
(46) So far as reasonableness of 10% is concerned, we may note from the Scheme that there are provisions for city park, regional park, water bodies, wide roads and lanes, internal sector roads, community open spaces, graveyard/cremation grounds, Bus stand, health centres, Schools and commercial-belts. (See: Table-II supra). If no incremental development contribution is being taken from the land owners and the Authority has decided to keep only 10% of developed land in ‘land pool’ to meet the infrastructural development cost, the same cannot be said to be unreasonable and unjust so as to interfere by this Court.
(47) For the foregoing reasons, we find no substance in these appeals. The appeals are liable to be dismissed and are hereby dismissed.
(48) No order(s) as to cost(s).
HEAD LINES
1. Doctrine of collateral challenge - No law which is valid ex facie carrying presumption of its correctness and validity can be invalidated in an incidental proceeding without laying down any foundation.
1.
2. Where the constitutional validity of a provision is not under challenge, the Court will have to proceed on the basis that the same is intra vires and interpret the same as such.
2.