TMI Blog2000 (11) TMI 1231X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Parent Act indicates, the object of the Act to be one enacted 'to consolidate and amend the law relating to the making and execution of development plans and Town Planning Schemes in the State of Gujarat'. It is a State legislation and the source of legislative power is derived from Entry 18 of State List and Entry 20 of the Concurrent List. 3. For appreciating and weighing the worth of grounds urged for challenging the impugned legislation, a brief survey of the provisions of the Parent Act and the Amendment Act would be necessary. The broad features of the Parent Act are : Chapter II contains the provisions for creation of larger area of development defined as development area and for constitution of 'Area Development Authorities' for the purpose of development. The main functions of the Area Development Authority under Sec. 7 are amongst others to undertake preparation of development plans for the 'Development Area' and for preparation and execution of 'Town Planning Schemes'. Section 12 of the Parent Act describe various proposals and reservations to be made in the development plan to be approved by the State Government. Sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, namely, D. M. Dharmadhikari, C. J. was a party in a group of petitions decided with Special Civil Application No. 3537 of 1995 Palitana Sugar Mills Private Ltd. v. State of Gujarat. The judgment in that case is being delivered today along with this group of petitions. The Division Bench of this Court in the group petitions of Palitana Sugar Mills Private Limited interpreted the provisions of Sec. 20 of the Act in the light of the scheme and other provisions of the Act and came to the conclusion against the contention of the State that by mere issuance of a revised development plan under Sec. 21 of the Act, the legal effect of dereservation of designated land for the public purposes under the development plan on failure of acquisition within 10 years and despite service of six months notice, is not nullified. 5. Chapter V of the Parent Act contains the provision regarding Town Planning Schemes. Section 40 under Chapter V of the Act enables the Appropriate Authority to prepare Town Planning Schemes in accordance with the final development plan. Sub-sec. (3) of Sec. 40 is also an enabling provision for the Authorities to undertake various development plans in the Town Planning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation is an ill-conceived legislative device to again reserve the same area or land which automatically stood dereserved because of its non-acquisition within the stipulated period under sub-sec. (2) of Sec. 20 of the Act being a provision regarding the development plan. 7. The ancillary ground urged is that the land which was not acquired on payment of compensation under Sec. 20 of the Act cannot again be acquired indirectly and without payment of compensation by introducing the impugned legislation to enable the Appropriate Authority to prepare a Town Planning Scheme and reserve the land at the specified percentage for public purposes like roads, parks, playgrounds, gardens and open spaces. It is submitted that the impugned legislation is inconsistent with the remaining provisions of the Act. It is an attempt to acquire property by framing scheme without payment of compensation under the Land Acquisition Act. It amounts to enacting an unreasonable law resulting in deprivation of the property of the land owners contrary to the constitutional right guaranteed under Art. 300A of the Constitution. 8. The most serious objection commonly raised by the learned Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is argued that the impugned piece of legislation is the misconceived law enacted to deprive the land owners of their right to property without payment of compensation in accordance with Land Acquisition Act. The scheme framed is not consistent with the provisions of the Parent Act and cannot be said to be valid and reasonable law. 9. Some other ancillary points urged on behalf of the petitioners by one of the Counsel arguing for them also deserve to be noted. It is pointed out that under the Parent Act, Sec. 40(3)(j) as it original stood merely provided for only 10% of the land to be reserved in the Town Planning Scheme for providing housing accommodation to members of the weaker sections. That provision contained in clause (j) is still on the statute book. As mentioned above, clause (JJ) was introduced by Gujarat Act No. 4 of 1986. After its introduction, the two clauses (j) and (jj) as stood prior to their substitution by (u)(a)(i) to (v), (b) and (c) read as under :- 40(3). A Town Planning Scheme may make provision for any of the following matters, namely :- (a) to (i) xx xx xx xx xx xx (j) the reservation of land to the extent of ten percent; or such percentage as near ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other ancillary grounds urged is that the State in its reply has agreed for its liability to pay compensation for the land reserved on the market value of the land as obtaining on 21-1-1999 being the date of publication of declaration of intention by the Appropriate Authority to frame the Town Planning Scheme in accordance with Sec. 82 of the Parent Act. The argument, advanced is that although Art. 300A does not require that the law resulting in deprivation of property should provide for payment of compensation under the Land Acquisition Act, but compensation payable under a law, which is found reasonable at a given point of time may be found unreasonable and illusory with the long passage of time. It is submitted that the decision to frame Town Development Scheme was taken several years back and payment of compensation at the market price existing on the date of declaration of intention of making the scheme would be highly illusory and unrealistic. The impugned legislation, therefore, cannot be described to be a just, fair and reasonable law, within the meaning of Art. 300A. 14. The learned Addl. Advocate-General Shri S.N. Shelat, who appeared for the State and the various p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;Rights in land' must include general rights like full ownership or leasehold or all such rights. 'Rights over land' would include easements or other collateral rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or illustration, giving instances which may famish a clue for particular matters. The second relevant Entry 20 in Concurrent List III reads :- 20. Economic and social planning . In 'Principles of Town and Country Planning' by Lewis Keepl, the scope of planning has been stated thus : Planning has both social and economic aims. Socially, successful planning tends to make people's lives happier because it results in a physical environment which conduces to health, which allows convenient and safe passage from place to place which facilitates social intercourse and which has visual attractiveness. The economic results of good planning also, of course, conduce to increase happiness, but not quite so directly. A proper spatial relationship between the communities in a region and the constituent parts of a town compactness of development, and an efficient arrangement of communicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allotted in the scheme for various public purposes like roads, parks, playgrounds, gardens, schools, dispensary and other purposes. The most serious objection taken is to sub-clause (iv) of clause (jj)(a)(iv) which permits 15% of land to be reserved for sale by Appropriate Authority for residential-commercial and industrial use. 19. So far as legislative competence is concerned, the Legislation could legitimately be made deriving source of power from Entry 18 of List II i.e.. 'land' and Entry 20 of List III, i.e., 'Economic and Social Planning'. A town planning law can legitimately include the acquisition of land, and its use for public purpose as a part of social and economic planning. What clause (jj)(a) does is only to demarcate the maximum extent to which land in the scheme can be utilised for various purposes. Sub-clause (iv) of clause (jj)(a) allows the authorities to provide in the scheme 15% of land for sale by Appropriate Authority, for residential, commercial or industrial use and as per sub-clause (b) of the said clause the proceeds of sale are to be utilised for providing infrastructural facilities. The entire impugned legislation is squarely covere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e competence of the State Legislature. II. CONSTITUTIONAL VALIDITY UNDER ART. 300-A AND ART. 14 OF THE CONSTITUTION OF INDIA 22. On behalf of petitioners the second ground of attack is that the impugned legislation contained in clause (jj)(a) is arbitrary and unreasonable law and is not protected by Art. 300-A of the Constitution. The first question, therefore, that arises on the ground urged is to consider whether the impugned legislation is arbitrary, unreasonable and violative of Art. 14 of the Constitution of India. As has been stated above while considering the ground raised on lack of legislative competence, the town planning scheme to be framed under Sec. 40 has been dealt with. Clauses (c) and (e) of sub-sec. (3) contain provisions for providing various public facilities as a part of town planning. What clause (jj)(a) provides is prescribing certain percentages as maximum limit within which land can be allotted for different public purposes. Preparation and implementation of town planning inherently involves in its process making of new plots by amalgamation of plots, their reconstitution and exchange of lands, of the different land owners as a part of systemat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution, after deletion of Art. 19(l)(f) and Art. 31, does recognise right to property as a constitutional right and deprivation thereof is permissible only under an authority of law. There can be no quarrel against the proposition advanced on behalf of the petitioners that the law contemplated by Art. 300- A should be a valid and reasonable law. The argument advanced on behalf of the petitioner, however cannot be accepted. Merely because under the impugned legislation on town planning the land owner who is deprived of his land is paid compensation on the basis of the market value of land as existing on the date of declaration of intention to prepare a scheme and not on the date of proposed acquisition of the property in accordance with the Land Acquisition Act, it cannot be held that the compensation paid is illusory and the law is unreasonable resulting in infringement of constitutional right of the land owner guaranteed under Art. 300A of the Constitution. 24. Similar argument advanced on the provisions of Bombay Town Planning Act of 1955, which is predecessor of the Parent Act, have been duly considered and repelled by the Supreme Court in two cases, State of Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso contended that in cases where no reconstituted plot is allotted to a person and his land is wholly appropriated for a public purpose in a scheme, the owner would be entitled to the value of the land as prevailing many years before the extinction of interest without the benefit of the steep rise in prices which has taken place all over the country. But if Sec. 71 read with Sec. 67 lays down a principle of valuation it cannot be struck down on the ground that because of the exigencies of the scheme, it is not possible to allot a reconstituted plot to an owner of land covered by the scheme. 27. Even on facts the argument that the compensation payable under the scheme for the land acquired is unrealistic and illusory is baseless. As is pointed out by Addl. Advocate-General, the declaration of intention for framing the claim was published on 21-1-1999. There is a clear stand taken up on behalf of the State that compensation that would be payable would be on the basis of market value as on 21-1-1999. The entire argument, therefore, that because of long passage of time between the date of declaration of intention of framing a scheme and the date of actual acquisition the compen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le with the Parent Act were considered by the Supreme Court and upheld. The provision of town planning scheme provide a different mode of determination and payment of compensation because the process involved in preparation of a scheme requires amalgamation and or reconstitution of plots resulting into appreciation of the value of some of the plots. We, therefore, hold that merely because, compensation payable for the land is not in accordance with the Land Acquisition Act but only in accordance with the provisions of the Parent Act, the provisions of the latter of Act cannot be held to be arbitrary, or unreasonable or violative of Art. 300A of the Constitution. III. ON THE INTERPRETATION OF SECS. 20 AND 40 OF THE ACT AND THEIR CO-RELATION AND CONJOINT OPERATION 30. As discussed above, we have rejected the grounds of challenge to the impugned legislation based on alleged want of legislative competence and violation of Art. 300A and Art. 14 of the Constitution. The submissions made by the opposing Counsel on the interpretation of the provisions of the Act, particularly Sec. 20 and Sec. 40 of the Parent Act, however, deserve due consideration. Sec. 20 of the Act per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-sec. (2) and (3) of Sec. 40 has to be with due regard to the final development plan and the proposals made therein. Where the land reserved or designated in the 'final development plan' is dereserved due to non-acquisition of the same within the specified period such land cannot again be reserved in the Town Planning Scheme. Any other interpretation of provisions of Sec. 40 would render Sec. 20 totally ineffective and otiose. Under Sec. 20, the land reserved or designated has to be acquired either under agreement or under Land Acquisition Act on payment of compensation payable under the Land Acquisition Act. The land which was reserved in the final development plan, but within the outer limit specified in Sec. 20, could not be acquired for want of financial capacity of the Authorities cannot again be rereserved indirectly and acquired under a Town Planning Scheme framed under Sec. 40 by payment of compensation only on the market value obtaining on the date of declaration of intention of preparation of a scheme under Secs. 41 and 43 read with Sec. 82 of the Parent Act. The land which could not be acquired under Sec. 40 for want of capacity to pay compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved or which is no longer to be taken as designated under Sec. 20(2), will have to be kept out of purview. If such land so dereserved or free from designation under Sec. 20, is proposed to be reserved in a Town Planning Scheme, in the percentages mentioned in various sub-clauses of clause (jj)(a), such land (referrable to Sec. 20(2) of the Parent Act) will have to be acquired for a specified public purpose and only in accordance with the provisions of Land Acquisition Act and on payment of market value of the land in accordance with the said Act. In coming to the above conclusion on the interpretation of Sec. 40 and 20 and on their conjoint operation, we find some support from the provisions contained in Sec. 48-A which provide for vesting of lands in the Authorities for purposes specified only in clauses (c), (f), (g) and (h) of Sec. 40 and not those mentioned in sub-clauses of clause (jj)(a) of Sec. 40(3). The relevant provision Sec. 48-A(1) reads thus :- Section 48-A. Vesting of land in appropriate authority : (1) Where a draft scheme has been sanctioned by the State Government under sub-sec. (2) of Sec. 48, (hereinafter in this Section, referred to as 'the sanctione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of land for various public purpose and facilities. Sub-clauses i to iv of clause jj(a) contain different percentages for reservation of land for public purposes. We have also pointed out that original clauses (jj) which was introduced by Gujarat Amendment No. IV of 1986 and is now substituted for jj(a) by impugned Act No. II of 1999 had made a provision for allotment of 10% of land or such percentage as nearly thereto as possible for the purpose of sale for residential, commercial or industrial use. By the impugned substituted jj(a)(iv), the Legislature has merely clarified that the said reserved land will be utilised for sale by Appropriate Authority. The proviso thereunder read with clause (b)'of clause jj(a) contains the legislative intent for reservation of 15% of land for sale by Appropriate Authority. It reads :- jj(a)(b) proceeds from the sale of land referred to in para IV of sub-clause (a) shall be used for the purpose of providing infrastructural facilities. The above quoted sub-clause (b) indicates the intention of the provisions to be contained in a Town Planning Scheme. We have quoted the extracts and observations http://www.the-laws.com/E ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
