TMI Blog2007 (5) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... will indicate the areas and zones, the users, the open spaces, the institutions and offices, the special purposes, etc. Town planning would be based on the contents of the development plan. It is only when the development plan is in existence, can a town planning scheme be framed. In fact, unless it is known as to what the contents of a possible town planning scheme would be, or alternatively, whether in terms of the development plan such a scheme at all is required, the intention to frame the scheme cannot be notified. The limit of Indore planning area was specified by a notification dated 13.02.1974 in terms of Sub-section (1) of Section 13 of the Act. Appellant Authority was constituted by the State of Madhya Pradesh in exercise of its power u/s 38(1) of the Act for the area comprised within the Indore planning as specified in the notification dated 13.02.1974. The State in exercise of its jurisdiction under Sub-section (1) of Section 75 of the Act delegated its power conferred upon it under Sections 13 and 47A of the Act upon the District Planning Committee. No power u/s 38 was delegated. The District Planning Committee exercises its jurisdiction pursuant to the said delega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amended, in the latter it would not be necessary. It is furthermore a well-settled principle of law that a delegatee must exercise its jurisdiction within the four-corners of its delegation. If it could not exercise its delegated power for the purpose of creation of the appellant authority or extended its jurisdiction, in our opinion, it cannot be done by amendment of a notification issued u/s 13(1) of the Act. Admittedly, the villages in question had been included by the State in its notification issued on 28.10.2005. Prior thereto, the said villages having not been included within the area of operation of the appellant authority, any action taken either by way of its intention to frame a town planning scheme or otherwise shall be wholly illegal and without jurisdiction. It would render its act in relation to the said villages a nullity. It is, therefore, difficult for us to accept the submission of Mr. Venugopal and Mr. Gambhir that the notification dated 13.11.2000 subsumes in the notification dated 12.08.1977. Thus, we do not have any other option but to uphold the impugned judgment of the High Court. We may, however, observe that several other contentions, as n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of preparing the map, and includes the register prepared, with the map giving details of land-use. 2(o) planning area means any area declared to be a planning area under this Act: Non-Planning area shall be construed accordingly. 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 2(v) Town and Country Development Authority means an authority established under Section 38. 6. Chapter IV of the Act deals with planning areas and development plans. Section 13(1) empowers the State Government to constitute planning areas for the purposes of the said Act and define the limits thereof. Subsection (2) of Section 13 empowers the State Government by notification, inter alia, to alter the limits of the planning area so as to include therein or exclude therefrom such areas, as may be specified in the notification; to amalgamate two or more planning areas so as to constitute one planning area; to divide any planning area into two more planning areas; and to declare that the whole or part of the area constituting the planning area sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: (i) the existing land use maps; xxx xx xxx (iv) the provisions for enforcing the draft development plan and stating the manner in which permission for development may be obtained. 10. Section 19 provides for sanction of development plans, sub-section (2) whereof reads as under : (2) Where the State Government approves the development plan with modification the State Government shall, by a notice published in the Gazette, invite objections and suggestions in respect of such modifications within a period of not less than thirty days from the date of publication of the notice in the Gazette. 11. Preparation of zoning plan is envisaged under Chapter V thereof. Section 20 reads as under : 20. 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. 12. In the zoning plan more details of land use as indicated in the development plan are to be indicated and, inter alia, shall : (c) allocate in detail areas or zones for residential, commercial, industrial, agricultural, and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a town development scheme in draft form and publish it in such form and manner as may be prescribed together with a notice inviting objections and suggestions from any person with respect to the said draft development scheme before such date as may be specified therein, such date being not earlier than thirty days from the date of publication of such notice. (4) The Town and Country Development Authority shall consider all the objections and suggestions as may be received within the period specified in the notice under sub-section (3) and shall after giving a reasonable opportunity to such persons affected thereby as are desirous of being heard or after considering the report of the committee constituted under sub-section (5) approve the draft scheme as published or make such modifications therein as it may deem fit. 17. A proviso has been added thereafter to sub-section (4) by Act of 2004 in terms whereof a draft scheme must be approved within the period of one year from the publication thereof. Section 51 provides for revision of the draft scheme. Section 53 imposes restrictions on land use and land development in the following terms : 53. As from the date of pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period between 25.08.2003 and 03.09.2003. By a resolution adopted in a meeting held on 20.08.2004 a decision in anticipation of approval of the Government under Section 50(1) of the Act was proposed, which included the lands of villages Bicholi and Kanadia, inter alia, for construction of a bye-pass road of 60 metres width. A declaration of intention to prepare a town development scheme in terms of sub-section (2) of Section 50 was issued on 24.08.2004. Indisputably, in terms of subsection (3) of Section 50 of the Act, the draft town development scheme was to be prepared within a period of two years therefrom. On or about 02.12.2004, Respondent applied for sanction of development plans under Section 29(1) of the Act. We may, however, notice that on 04.01.2005, the said draft development plans were returned by the State of Madhya Pradesh in terms of Section 19(1) of the Act with a direction that the plans be prepared for the projected population as in the year 2021 and the same be placed before the Government for approval as soon as possible. 23. The State of Madhya Pradesh, however, issued a notification in terms of sub-section (1) of Section 38 of the Act, inter alia, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, so far as the said two villages are concerned, being beyond its territorial jurisdiction. Submissions : 27. Mr. K.K. Venugopal, and Mr. S.K. Gambhir, learned Senior Counsel appearing on behalf of the appellant, submitted : (i) The High Court committed a serious error in interpreting the provisions of Section 50 of the Act, inasmuch : (i) Under the Act an existing land use map has to be published which would indicate broadly the land use proposed in the planning area and the areas or zones of land allocated for the purposes mentioned therein; and (ii) As the scheme covers the villages in question, the same could not have been ignored. (ii) Having regard to the fact that the scheme provides for construction of a bypass road of 70 feet width, any construction by the builders would lead to haphazard development and, thus, would completely destroy the purpose for which the land was to be reserved for planned development of the residential area. (iii) Undertaking of haphazard and unplanned development would carry with it a statutory injunction provided for under Section 53 of the Act, in terms whereof, if an existing land use map or a draft development plan or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not made any separate submission before us. 29. Mr. C.A. Sundaram and Mr. Arun Jaitley, learned Senior Counsel appearing on behalf of the respondents in these appeals, on the other hand, would submit : (i) The land of the respondents being outside the planning area, as notified by the State of Madhya Pradesh constituting the Appellant- Authority, the purported town development scheme would not be applicable in relation thereto. Only because the planning area has been extended by the District Planning Committee, the same would not ipso fact enlarge the territorial jurisdiction of the Appellant- Authority. (ii) Safeguard of public interest has sufficiently been taken care of in terms of the Act., as upon issuance of a notification under Section 13 of the Act, the Director only is authorised to sanction a plan for development and carry out other functions as laid down under Sections 15, 16 and 17 of the Act. (iii) The committee constituted under Section 17-A of the Act is the only authority which can consider and suggest modifications in the draft development plan prepared by the Director under Section 14, whereafter only a draft development plan can be published in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses such statutory powers which are conferred upon him. A State is divided into several regions. A regional plan is finalised whereupon restrictions on use of land or development thereof can be imposed. Such regional plan is subject to review. 32. Chapter IV of the Act provides for carving out planning areas and preparation of development plans. Development plans are required to be prepared and finalised only in relation to the planning areas. An area, however, which is notified can be sub-divided into planning areas and nonplanning areas. 33. Chapter V of the Act deals with the preparation, finalization, review and modifications of the zonal plan wherewith we are not concerned much in these appeals. Chapter VI of the Act provides for control of development and use of land. In terms of Section 24 of the Act, the Director is to control land use. Preparation of development plan, prohibition of development without permission and matters connected therewith and incidental thereto are also dealt with in Chapter VI. Chapter VII of the Act, however, provides for shift of control in respect of land use and development for the hands of the Director and, consequently of the State to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act deals with special areas. Chapter IX, however, envisages power of the State Government of supervision and control as also to issue necessary directions. The State has also the power to review plans for ensuring conformity. It may also delegate its power from time to time. Dissolution of authority at the hands of the State is envisaged under Section 76 of the Act. 38. When a planning area is defined, the same envisages preparation of development plan and the manner in which the existing land use is to be implemented. A development plan in some statutes is also known as a master plan. It lays down the broad objectives and parameters wherewith the development plan is to deal with. It also lays down the geographical splitting giving rise to preparation and finalization of zonal plans. The zonal plans contain more detailed and specific maters than the master plan or the development plan. Town planning scheme or lay-out plan contains further details on plot-wise basis. It may provide for the manner in which each plot shall be dealt with as also the matter relating to regulations of development. 39. Once, however, the existing land use is in place, subject to certain restrict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncipal questions : 43. In these appeals, principally, we are beset with two questions: (i) Whether having regard to notification dated 13.02.1974 vis- -vis the expansion of the Indore Development Plan, the District Committee in exercise of its delegated power can automatically extend the area of operation of the appellant despite the notification constituting it by the State whereby and whereunder its area of operation was limited to the one covered by the notification dated 13.02.1974 ? (ii) Whether the appellant authority can declare its intention in terms of Section 50 of the Act before the development attained finality. Competing Interest : 44. There are two competing interests, viz., one, the interest of the State vis- -vis the general public and, two, to have better living conditions and the right of property of an individual which although is not a fundamental right but is a constitutional and human right. 45. Before we embark upon the questions involved in these appeals, we would like to make some general observations. 46. Town and country planning involving land development of the cities which are sought to be achieved through the process of l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the citizens and provides for the consequences therefor it would be construed to be mandatory in character. 50. In T. Vijayalakshmi v. Town Planning Member [(2006) 8 SCC 502], this Court held: 15. The law in this behalf is explicit. Right of a person to construct residential houses in the residential area is a valuable right. The said right can only be regulated in terms of a regulatory statute but unless there exists a clear provision the same cannot be taken away. It is also a trite law that the building plans are required to be dealt with in terms of the existing law. Determination of such a question cannot be postponed far less taken away. Doctrine of legitimate expectation in a case of this nature would have a role to play. It was further observed: 18. It is, thus, now well-settled law that an application for grant of permission for construction of a building is required to be decided in accordance with law applicable on the day on which such permission is granted. However, a statutory authority must exercise its jurisdiction within a reasonable time. (See Kuldeep Singh v. Govt. of NCT of Delhi) 51. What would be a public purpose in such a matter h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uals right to health, right to livelihood, right to shelter and employment etc. but now human rights have started gaining a multifacet approach. Now property rights are also incorporated within the definition of human rights. Even claim of adverse possession has to be read in consonance with human rights. 57. As President John Adams (1797-1801) put it, : Property is surely a right of mankind as real as liberty. Adding, The moment the idea is admitted into society that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence . 58. Property, while ceasing to be a fundamental right would, however, be given express recognition as a legal right, provisions being made that no person shall be deprived of his property save in accordance with law. Interpretation of the Act : 59. The Act being regulatory in nature as by reason thereof the right of an owner of property to use and develop stands restricted, requires strict construction. An owner of land ordinarily would be entitled to use or develop the same for any purpose unless there exists certain regulation in a statute or a stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y substantive provisions contained in a parliamentary or legislative act he cannot be refrained from dealing with his property in any manner he likes. Such statutory interdict would be opposed to one s right of property as envisaged under Article 300A of the Constitution of India. 63. In State of Uttar Pradesh v. Manohar [(2005) 2 SCC 126], a Constitution Bench of this Court held : Ours is a constitutional democracy and the rights available to the citizens are declared by the Constitution. Although Article 19(1)(f) was deleted by the Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows: 300-A. Persons not to be deprived of property save by authority of law.\027No person shall be deprived of his property save by authority of law. This is a case where we find utter lack of legal authority for deprivation of the respondent s property by the appellants who are State authorities 64. In Jilubhai Nanbhai Khachar Ors. v. State of Gujarat and Anr. [(1995) Supp. 1 SCC 596], the law is stated in the following terms : The right of eminent domain is the right of the sovereign State, through its re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson shall be deprived of his property save by authority of law. There has to be no deprivation without any sanction of law. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, if there is no law, there is no deprivation. Acquisition of mines, minerals and quarries is deprivation under Article 300-A. 65. Rajendra Babu, J (as the learned Chief Justice then was) in Sri Krishnapur Mutt, Udupi v. N. Vijayendra Shetty and Anr. [1992 (3) Kar.L.J. 326] observed : The restrictions imposed in the planning law though in public interest should be strictly interpreted because they make an inroad into the rights of a private persons to carry on his business by construction of a suitable building for the purpose and incidentally may affect his fundamental right if too widely interpreted 66. The question has also been addressed by a decision of the Division Bench of this Court in Pt. Chet Ram Vashist (Dead) by LRs. v. Municipal Corporatiopn of Delhi [(1995) 1 SCC 47], wherein R.M. Sahai, J., speaking for the Bench opined : 6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, but it is difficult to conceive that the State of Madhya Pradesh while constituting the appellant authority in terms of Section 38(1) of the Act by reason of its notification dated 09.05.1977 was wholly oblivious thereto. When the Act came into force the existing land use was determined. The area for which, thus, land could be put to use was fixed. No land could be used for a purpose which is not envisaged by land use. 69. A Director who is a very high ranking officer and is answerable only to the State is appointed under the Act to put an eye over the development activities; be it by the developers or others. Apart from the fact that gram panchayat which is a local authority within the meaning of the provisions of the Act had the occasion to consider each application for grant of sanction of the building plans which presumably would require to be drawn directly in terms of the building bylaws framed under a statute which in turn gave rise to a presumption that it had received an approval of the State, in the event of any further development the permission of the Director is necessary. The Director, however, being an authority under the Act was statutorily enjoined to perform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erchangeably used draft development plan, sanctioned development plan as development plan and, secondly, on the strength of clause (iv) of Sub-section (1) of Section 18 of the Act laying down that a notice shall be issued thereunder containing inter alia the particulars, viz., the provisions for enforcing the draft development plan and stating the manner in which permission for development may be obtained. 73. We do not see any force in the said argument. It is possible to enforce a draft development plan in a given case, but the statute must specifically provide for the same. But, a draft development plan which has not attained finality cannot be held to be determinative of the rights and obligations of the parties and, thus, it can never be implemented. Section 50 of the Act explicitly states that the authority may declare its intention to prepare a town development scheme which having regard to Section 2(u) of the Act must be read to mean declaration of its implementation to prepare a scheme for the implementation of the provisions of a development plan. 74. We have come across some legislations, as for example, The Himachal Pradesh Town and Country Planning Act, 1977 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot at all be in place when a town planning scheme is prepared. 79. Once a final plan comes into force, steps inter alia are taken for acquisition of the property. Section 34 of the Act takes care of such a contingency. The town development scheme, as envisaged under Section 49 of the Act, specifically does it. Out of nine clauses contained in Section 49, six relate to acquisition of land for different purposes. Clauses (v), (viii) and (ix) only refer to undertaking of such buildings or construction of work by the authority itself, reconstructions for the purpose of buildings, roads, drains, sewage lines and the similar amenities and any other work of a nature such as would bring about environmental improvements. 80. If the submission of Mr. Venugopal is accepted, a purpose which is otherwise not contemplated under Chapter IV would be brought in by side door in Chapter VII. It is well-settled that would cannot be done directly cannot be permitted to be done indirectly. 81. The purpose of declaring the intent under Section 50(1) of the Act is to implement a development plan. Section 53 of the Act freezing any other development is an incidence arising consequent to the purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof by virtue of Section 53 of the Act, and should no development plan be finalized within 3 years, such scheme would lapse and the authority thereupon would merely notify a fresh intent to formulate a town development scheme and once again freeze the usage of the land for another three years and continue the same ad infinitum thereby in effect completely depriving the citizen of the right to use his property which was in a manner otherwise permitted under law as it stands. 84. The essence of planning in the Act is the existence of a development plan. It is a development plan, which under Section 17 will indicate the areas and zones, the users, the open spaces, the institutions and offices, the special purposes, etc. Town planning would be based on the contents of the development plan. It is only when the development plan is in existence, can a town planning scheme be framed. In fact, unless it is known as to what the contents of a possible town planning scheme would be, or alternatively, whether in terms of the development plan such a scheme at all is required, the intention to frame the scheme cannot be notified. 85. Section 50 of the Act no doubt uses the word at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction). [See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental Action Group and Ors., (2006) 3 SCC 434 and National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007 (4) SCALE 36] 90. In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638], while interpreting the provisions of Industrial Disputes Act, 1947, the rule of purposive construction was followed. 91. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424] this Court stated: If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oever that even a delegatee exercises its power relying on or on the basis of its power conferred upon it by the delegator, its act would be deemed to be that of the principal as has been held by this Court in State of Orissa and Others v. Commissioner of Land Records and Settlement,Cuttack and Others [(1998) 7 SCC 162], this Court held: 25. We have to note that the Commissioner when he exercises power of the Board delegated to him under Section 33 of the Settlement Act, 1958, the order passed by him is to be treated as an order of the Board of Revenue and not as that of the Commissioner in his capacity as Commissioner. This position is clear from two rulings of this Court to which we shall presently refer. The first of the said rulings is the one decided by the Constitution Bench of this Court in Roop Chand v. State of Punjab 3 . In that case, it was held by the majority that where the State Government had, under Section 41(1) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, delegated its appellate powers vested in it under Section 21(4) to an officer , an order passed by such an officer was an order passed by the State Government itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority is not competent to declare Town Development Scheme beyond its prescribed operational area. 99. Yet again, the State in exercise of its power under Section 38(1) of the Act notified planning area confirming to the one identified by the District Planning Committee in terms of its notification dated 28.10.2005. How State understood it : 100. Application of the principle of executive construction would lead to a conclusion that the State and the appellant themselves proceeded on the basis that in terms of the notification issued by the District Planning Committee, the area of operation of the appellant was not extended. 101. In G.P. Singh s Principles of Statutory Interpretation, 10th Edn. at p. 319, it is stated : But a uniform and consistent departmental practice arising out of construction placed upon an ambiguous statute by the highest executive officers at or near the time of its enactment and continuing for a long period of time is an admissible aid to the proper construction of the statute by the Court and would not be disregarded except for cogent reasons. The controlling effect of this aid which is known as executive construction would depe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latter it would not be necessary. 104. In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. [AIR 2005 SC 3593], this Court observed: 9. Adopting or applying an earlier or existing Act by competent Legislature to a later Act is an accepted device of Legislation. If the adopting Act refers to certain provisions of an earlier existing Act, it is known as legislation by reference. Whereas if the provisions of another Act are bodily lifted and incorporated in the Act, then it is known as legislation by incorporation. The determination whether a legislation was by way of incorporation or reference is more a matter of construction by the courts keeping in view the language employed by the Act, the purpose of referring or incorporating provisions of an existing Act and the effect of it on the day-to-day working. Reason for it is the courts prime duty to assume that any law made by the Legislature is enacted to serve public purpose.. 105. It is furthermore a well-settled principle of law that a delegatee must exercise its jurisdiction within the four-corners of its delegation. If it could not exercise its delegated power for the purpose of creation of the appellant authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t because of the publication of the Draft Scheme No. 164 U/s. 50(2) of the Adhiniyam are quashed and the Director is directed to reconsider the application of the petitioner for permission to undertake construction of the house in accordance with the provisions of the Adhiniyam and the observations in this judgment 112. The learned counsel would submit that the said direction is not correct as the High Court should have directed the Director to consider the respondents application in accordance with the law as it existed at the relevant point of time. We do not subscribe to the said view as it is now well-known that that where a statute provides for a right, but enforcement thereof is in several stages, unless and until the conditions precedent laid down therein are satisfied, no right can be said to have been vested in the person concerned. 113. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2 All ER 721], the Privy Council considered the said question having regard to the repealing provisions of the Landlord and Tenant Ordinance, 1947 as amended on 9-4-1957. It was held that having regard to the repeal of Sections 3-A to 3-E, when applications remained p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or settled expectation cannot be set up against statutory provisions which were brought into force by the State Government by amending the Building Rules and not by the Corporation against whom such vested right or settled expectation is being sought to be enforced. The vested right or settled expectation has been nullified not only by the Corporation but also by the State by amending the Building Rules. Besides this, such a settled expectation or the so-called vested right cannot be countenanced against public interest and convenience which are sought to be served by amendment of the Building Rules and the resolution of the Corporation issued thereupon. 115. In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314], yet again this Court emphasized : The application has to be decided in accordance with the law applicable on the date on which the authority granting the registration is called upon to apply its mind to the prayer for registration. 116. In S.B. International Ltd. v. Asstt. Director General of Foreign Trade [(1996) 2 SCC 439], this Court repelled a contention that the authorities cannot take advantage of their own wrong viz. delay in issuing the advan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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