TMI Blog2014 (5) TMI 1143X X X X Extracts X X X X X X X X Extracts X X X X ..... It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal. The interpretation given by the High Court runs contrary to the intention under the scheme and may frustrate the scheme itself as in the pockets left out in the scheme the basic amenities may not be available. The result would be that a portion of the land would be left without infrastructural facility while the adjacent area belonging to neighbours would be provided infrastructural facility. In view thereof, we are of the considered opinion that the High Court has recorded an erroneous finding that if a designation lapses under Section 20, the land cannot be again reserved in a town planning scheme, and further if the land cannot be acquired under Section 20 for want of capacity to pay any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etation of Section 40(3)(jj) of the Act 1976 and application of certain statutory provisions of the Gujarat Town Planning and Urban Development Rules, 1979 (hereinafter referred to as the Rules 1979 ). The basic question that has been raised on behalf of the tenure-holders (Association of land owners) is that whether the provisions contained in Sections 40(3)(jj) of the Act 1976 are ultravires of Articles 14, 19 and 300-A of the Constitution of India, 1950 (hereinafter referred to as the Constitution ) and have also challenged the action on the part of the Municipal Corporations (Ahmedabad and Surat) for declaring the intention to frame town planning schemes by issuing notifications, and further to hold that the action of the Municipal Corporations to take away land of the tenure-holders to the extent of 50% without paying any compensation as ultra-vires and further challenged the respective resolutions of the State Government in this regard. The main contention of the respondents before the High Court was that by way of the impugned legislation, the appellants have designed a circuitous method to acquire land without paying any amount of compensation. The ancillary ground urg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sanctioned the development plan on 2.11.1987 which came into force on 3.12.1987 whereby the area known as green belt was reserved for public housing for different government organizations . E. The AUDA prepared draft revised development plan which was published on 29.11.1997. The land reserved for public housing for different government organizations was de-reserved and put under the category as restricted residential utility services and other uses zones . F. The AUDA in exercise of the powers under Section 21 of the Act 1976 came out with a draft revised development plan in the year 1998. G. The respondents herein filed a Writ Petition before the Gujarat High Court challenging the draft revised development plan and for direction to the appellants herein to acquire their lands as per the plan of 1987 within a period of 6 months failing which the plan would lapse. H. The Act 1976 was amended on 1.5.1999 and Section 40(3)(jj) was inserted. The writ petition was amended and the vires of Sections 12 and 40(3)(jj) of the Act 1976 were also challenged. I. The AUDA vide its resolution dated 5.5.1999 approved the proposed revised development plan. Declarations were m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the provisions of this Act. Section 10 thereof requires that a copy of draft development plan is to be kept open for public inspection. Section 12 provides for the contents of draft development plan generally providing the manner in which the use of land in the area covered by it shall be regulated and also indicating the manner in which the development therein shall be carried out. In particular, it shall provide, so far as may be necessary, proposal for designating the use of the land for residential, industrial, commercial, agricultural and recreational purposes; for the reservation of land for public purposes, such as schools, college and other educational institutions, medical and public health institutions; proposals for designation of areas for zoological gardens, green belts, natural reserves and sanctuaries; transport and communications, such as roads, highways, parkways, railways, waterways, canals and airport, including their extension and development; proposals for water supply, drainage, sewage disposal, other public utility amenities and service including supply of electricity and gas; reservation of land for community facilities and services, etc. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iation of schemes for the purpose other than public purpose. Section 48 of the Act 1976 defines the power of the State Government to sanction draft scheme. Further, Section 48-A reads as under: (1) Where a draft scheme has been sanctioned by the State Government under sub-section (2) of section 48, (hereinafter in this section, referred to as 'the sanctioned draft scheme'), all lands required by the appropriate authority for the purposes specified in clause (c), (f), (g), or (h) of sub-section (3) of section 40 shall vest absolutely in the appropriate authority free from all encumbrances. (2) Nothing in sub-section (1) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section. Section 77 of the Act 1976 deals with cost of scheme, which also includes all sums payable as compensation for land reserved or designated for any public purpose or for the purposes of appropriate authority which is solely beneficial to the owners of the land or residents within the area of the scheme and also includes portion of the sums payable as compensation for land reserved or designated for any public purpose. It also include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with the cases in which the value of the developed plot is less than the amount payable by the owners. In case the amount which would be due to the appropriate authority under the Act from the owner of a plot to be included in the final scheme exceeds the value of such plot estimated on the assumption that till scheme has been completed, the owner of such plot has to make payment to authority of the amount of such excess within the prescribed period. Sub-Section (2) of Section 85 provides that on meeting certain legal requirements, the plot included in the final scheme shall vest absolutely in the appropriate authority free from all encumbrances but subject to the provisions of the Act . 9. Rule 22 of the Rules 1979 reads as: (1) The compensation payable under section 45 shall be difference between the value of the property (inclusive of structure) on the basis of the existing use and that on the basis of permitted use both values being determined as on the date of declaration of intention to prepare the scheme. (2) In making the valuation on the basis of permitted use, allowance shall be made for the expenses that may have to be incurred in so converting the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of the Act 1976, can the said land be again acquired by resorting to the provisions of Section 40 of the Act 1976. In the present case, the State Government had sanctioned a development plan on 2.11.1987 which came into force on 3.12.1987 wherein the area known as the green belt was reserved for public housing for different government organizations . The said area was deemed to be de-reserved by virtue of the provisions of Section 20 after the expiry of a period of 10 years. Despite the respondents having served the six months notice, the said land was still not acquired by the government. It has been submitted on behalf of the respondents that having regard to the provisions of Section 20 read with Section 40 of the Act 1976, the said land could not be reacquired/re-designated by framing a town planning scheme. Section 48-A of the Act 1976 provides for vesting of land in the appropriate authority. However, the said section does not cover the requirement under Section 40(3)(jj)(a) of the Act. It has been further argued that the other relevant provision is Section 107 of the Act 1976 which provides that land needed for a town planning scheme shall be deemed to be land needed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the benefit under Article 300-A of the Constitution which provides for a constitutional right to property is also stood rejected. Each and every claim to property cannot be termed as a right to property and any legislation prescribing a reasonable restriction over the same is a valid exception to the said Article. IV) Even the contention of the respondents that the compensation prescribed under Section 82 of the Act 1976 was inadequate stands rejected. 15. The aforesaid findings have been challenged by the State/statutory authorities as well as by the Association of land owners to the extent the findings have been recorded against them. 16. It is in this backdrop that we have to test the submissions advanced on behalf of the parties in the light of law declared by this Court earlier on the issues involved herein. In Jilubhai Nanbhai Khachar etc.etc. v. State of Gujarat Anr., etc.etc., AIR 1995 SC 142, this Court held: Though Articles 31 and 19(1)(f) of the Constitution accorded to property the status as a fundamental right, there emerged conflict between the animation of the Founding Fathers and the judicial interpretation on the word compensation when priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 53(a) and that vesting for purposes of the guarantee under Article 31(2) is deemed compulsory acquisition for a public purpose. To lands which are subject to the scheme, the provisions of Sections 53 and 67 apply, and the compensation is determined only in the manner prescribed by the Act. There are therefore two separate provisions one for acquisition by the State Government, and the other in which the statutory vesting of land operates as acquisition for the purpose of town planning by the local authority. The State Government can acquire the land under the Land Acquisition Act, and the local authority only under the Bombay Town Planning Act. There is no option to the local authority to resort to one or the other of the alternative methods which result in acquisition. Hence the provisions of Sections 53 and 67 are not invalid on the ground that they deny equal protection of the laws or equality before the laws. (Emphasis added) 19. In Prakash Amichand Shah (Supra) this Court held: ..All his functions are parts of the social and economic planning undertaken and executed for the benefit of the community at large and they cannot be done in isolation. When such function ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Shantilal Mangaldas (supra). With great respect, we approve of the decision of the court in this case .We do not therefore find any substance in the contention that the Act violated Article 31(2) of the Constitution as it stood at the time when the Act was enacted or at any time thereafter. (Emphasis added) 20. This Court in the said case also explained the decision of this Court in Nagpur Improvement Trust Anr. v. Vithal Rao Ors., AIR 1973 SC 689, wherein the High Court had held that as the acquisition was by the State, in all cases where the property was required to be acquired for the purposes of a scheme framed by the Trust and such being the position, it was not open to the State to acquire any property under the provisions of the Act 1894 as amended by the Improvement Trust Act without paying compensation on the same parameters and the solatium also. It was, therefore, held by the High Court that the paras 10(2) and 10(3) insofar as they added a new clause 3(a) to Section 23 and a proviso to sub-section (2) of Section 23 of the Act 1894 were ultra vires as violating the guarantee of Article 14 of the Constitution. This Court further held: ..The developm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before, provides for an enabling provision in terms whereof the State become entitled to acquire the land either by agreement or taking recourse to the provisions of the Land Acquisition Act. If by reason of a revised plan, any other area is sought to be brought within the purview of the development plan, evidently in relation thereto the State will be entitled to exercise its jurisdiction under sub-section (1) of S. 20 but it will bear repetition to state that the same would not confer any other or further power upon the State to get the duration of designation of land, which has been lapsed, extended. What is contemplated under S. 21 is to meet the changed situation and contingencies which might not have been contemplated while preparing the first final development plan. The power of the State enumerated under subsection (1) of S. 20 does not become ipso facto applicable in the event of issuance of a revised plan as the said provision has been specifically mentioned therein so that the State may use the same power in a changed situation. (See also: Chairman, Indore Vikas Pradhikaran v. M/s. Pure Industrial Cock Chem. Ltd. Ors., AIR 2007 SC 2458; and Shrirampur Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court observing as under: Even if, an original plot owner is allotted smaller extent of land in the final plot and has to pay certain amount as contribution, having regard to the scheme and its objects, this is inevitable and is not deprivation. 25. Thus, it is evident that in case a land owner is not provided with a final plot, amount of his loss would be payable to him as required under Section 84 of the Act 1976. (It is agreed by learned counsel for the parties that there is not a single instance herein where the land owner is deprived of his land completely and has not been given a reconstituted plot). However, it is suggested by learned counsel for the State that in such an event, such tenure holder would be entitled for market value of the land to be determined under the Act 1976 and the provisions of the Act 1894 would not be applicable in view of the judgment of this Court in Prakash Amichand Shah (supra). Be that as it may, as there is no such instance where the land owner is deprived completely of his land and does not get reconstituted plots, we do not want to proceed further with an academic question. 26. In Shantilal Mangaldas (supra), this Court held: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plan is a macro plan for a vast area wherein a town planning scheme is minor scheme within the town. Section 40(1) simply provides that in the making of town planning scheme the authority has to have regard to the final development of the plan, if any. Thus, the words having regard to the development plan in Section 40 means that town planning scheme cannot disregard or ignore the designation/reservation made in the development plan. Under Section 20 of the Act, it is provided that if an acquisition does not take place by agreement or under the Act 1894, in respect of certain lands designated in the final development plan for the six purposes mentioned in sub-section (2) of Section 12 within a period of 10 years from the coming into force of the final development plan, the designation of the land under these clauses shall be deemed to have lapsed. Therefore, the provision for lapsing of the designation of the land does not take it out of the purview of town planning scheme and such a provision does not prevent the making of a provision in a town planning scheme for any reservation specified in Section 40(3). If the judgment of the High Court on this issue is approved, the tow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile framing the scheme, and this court had not dealt with the provisions of the scheme under Chapter-V of the Act. 33. A Constitution Bench of this Court in K.L. Gupta Ors. v. The Municipal Corporation of Greater Bombay Ors., AIR 1968 SC 303 had examined the validity of the provisions of Sections 9, 10, 11, 12 and 13 of the Bombay Town Planning Act, 1954 (hereinafter referred to as the `Act 1954 ) and held as under: With regard to the complaint that the period of ten years fixed under s. 11(3) of the Act was too long, and an unreasonable restriction on the rights of a land owner to deal with his land as he pleased, it is enough to say that in view of the immensity of the task of the local authorities to find funds for the acquisition of lands for public purposes, a period of ten years was not too long. ..No one can be heard to say that local authority after making up its mind to acquire land for a public purpose must do so within as short a period of time as possible. It would not be reasonable to place such a restriction on the power of the local authority which is out to create better living conditions for millions of people in a vast area. The finances of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea that it does not provide adequate compensation to the owner . The first contention urged by Mr. Bindra cannot, therefore, be accepted . The principal argument which found favour with the High Court in holding Section 53 ultra vires is that when a plot is reconstituted and out of that plot a smaller area is given to the owner and the remaining area is utilised for public purpose, the area so utilised vests in the local authority for a public purpose, and since the Act does not provide for giving compensation which is a just equivalent of the land expropriated at the date of extinction of interest, the guaranteed right under Article 31(2) is infringed . 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. A part or even the whole plot belonging to an owner may go to form a reconstituted plot which may be allotted to another person, or may be appropriated to public purposes under the scheme. The source of the power to appropriate the whole or a part of the original plot in forming a reconstituted plot is statutory. It does not predicate ownership of the plot in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubhai Vithalbhai Patel v. State of Gujarat Anr., AIR 2008 SC 1771, it was not permissible for the statutory authorities to bring any scheme whatsoever for the reason that as per that judgment also, land could be used for residential purposes and the authority s draft scheme also provides for residential purposes. That does not mean that it would be used exclusively for residential purpose and it cannot have even small marketing place or a small dispensary. 36. Section 40 of the Act 1976 contains the words regard being had and thus it suggests that while the condition specified therein are to be taken into consideration they are only a guide and not fetters upon the exercise of power. 37. It is a settled legal proposition that hardship of an individual cannot be a ground to strike down a statutory provision for the reason that a result flowing from a statutory provision is never an evil. It is the duty of the court to give full effect to the statutory provisions under all circumstances. Merely because a person suffers from hardship cannot be a ground for not giving effective and grammatical meaning to every word of the provisions if the language used therein is unequivocal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under Section 48 of the Act 1976 empowers the State Government to sanction a draft scheme and clause (3) thereof provides that if the State Government sanctions the scheme, a notification shall be issued stating at what place and time the draft scheme shall be open for the inspection of the public after which the procedure prescribed under Sections 50 and 51 would be followed. At that stage Rule 26 which provides that for the purpose of preparing the preliminary scheme and final scheme, the Town Planning Officer shall give notice in Form H of the date on which he will commence his duties and shall state the time as provided in Rule 37 within which the owner of any property or right which is injuriously affected by the making of a scheme would be entitled under Section 82 to make a claim before him. Such notice should be published in the official gazette also and the law further requires the filing of the objections and the personal hearing to such person who would be adversely affected. 42. In the instant Transferred Case, as the authority is only dealing with the issues at a draft stage and the applicants have ample opportunity to file their objections and are entitled ..... X X X X Extracts X X X X X X X X Extracts X X X X
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