TMI Blog2016 (11) TMI 1689X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act of 1956 or only to a scheme Under Section 49/50 of the Act of 1973 cannot be accepted. The provisions of the Act of 1973 and the provisions of Section 292 of the Act of 1956. Under the Act of 1973, there is a regional plan, development plan or town development scheme they have to be understood included in expression 'scheme' under the provisions of Section 292. Article 300A enables the State to put restrictions on the right by law but the same should not be arbitrary or excessive or beyond what is required in public interest. The imposition of restriction must not be disproportionate to a situation or statute. Legislation providing for deprivation of property Under Article 300A must be just, fair and reasonable - it cannot be said that illusory compensation is provided Under Section 306 read with Section 387. The decision renders no help to the cause espoused on behalf of the Appellants and on a closer scrutiny, rather counters it. Reasonable compensation is payable by the Corporation for building or part thereof excluding the land under proviso to Section 305(1) and compensation for inclusion of land in public street is payable Under Section 306(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar Sharma, Praveen Chaturvedi, Mishra Saurabh, Sunny Choudhary, Ankit Kumar Lal, Pragati Neekhra and Akshay Chandra, Advs. JUDGMENT Arun Mishra, J. 1. Leave granted. 2. The appeals arise out of judgment and order dated 9.5.2016 passed by the High Court of Madhya Pradesh at Jabalpur and as against order dated 30.9.2010 passed by the Division Bench of the High Court of Madhya Pradesh at Indore thereby affirming the judgment and order passed by the learned Single Judge. 3. The matter arises out of Bhopal Municipal Corporation and Indore Municipal Corporation. The action taken by the Municipal Corporations of Bhopal and Indore Under Section 305 of Madhya Pradesh Municipal Corporation Act, 1956 (hereinafter referred to as 'the Act of 1956') has been questioned. The Single Bench at Jabalpur had allowed the writ application and held that the land be acquired under the provisions of the Act of 2013. Aggrieved thereby, writ appeals were filed by Bhopal Municipal Corporation which have been allowed by the impugned judgment and order dated 9.5.2016 by a Division Bench of the High Court of M.P. 4. With respect to Bhopal the facts are being narrated from the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Ampree Chouraha. The Master Plan was prepared under the provisions of M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 (Town Country Planning Act) hereinafter referred to as 'the Act of 1973'. The Development Plan/Master Plan was prepared as per the provisions of Section 18 after inviting objections, suggestions. None of the Appellants had raised objection when the development plan was prepared. It was finalized and published as per provisions contained in Section 19(4). 6. The development permission was granted by the competent authority under the Act of 1973 as per the provisions contained in Section 13(1)(b) and Rule 21(1) framed under the Bhopal Vikas Adhiniyam, 1984 since repealed with effect from April, 2012. The Appellants have raised the construction of their building as per the conditions mentioned in the map sanctioned by the authority under the Act of 1973. They were required to keep the land for widening of road in question. Accordingly, the landowners submitted their lay-out leaving requisite land from the centre of the road for widening of road. On that basis Municipal Corporation had granted permission to Appellants. They were aware of the proposed width ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. It was submitted that the provisions contained in Section 306 be read down by incorporating the provisions of the Act of 2013 in the light of principles enshrined therein while correlating it with the provisions of Section 387 of the Act of 1956. It was also submitted that within the ken of Section 305 of the Act of 1956, Corporation has no right to enter and remove any part of the structure falling within building line. 8. In the cases arising from the Indore Bench vires of the provisions of Sections 305 and 306 of Act of 1956 have not been questioned. In Indore also BRTS corridor is being undertaken at the cost of ₹ 868 crores. Same is being executed through the nodal agency of Indore Development Authority. State Government has granted approval to the project as a Town Development Scheme Under Section 49(ix) of the Act of 1973. As per Appellants BRTS corridor is being undertaken on a portion of Agra Bombay Road (AB Road). It was described as Major City Road in the development plan, 1991 which was prepared and notified in the year 1975. At the relevant time AB Road/MR-I was proposed to be as 40-50 mtrs. At the same time it was provided that for future the width of said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e protection conferred under Articles 14, 19, 21 and 300A of the Constitution and repugnant to the provisions contained in Section 56 of the Act of 1973. It was also contended that on proper interpretation of the provisions contained in Section 305, the Corporation has no right to remove greater portion of the building or material portion of the projecting part unless it has been taken down or burned down or has fallen down. On notice, it is to be voluntarily removed by the owner thereof. The Corporation can only remove the projecting part which is external to the main building as verandah, step or some other structure. The acquisition proceedings have to be necessarily resorted to under the provisions contained in Sections 78 and 79 of the Act of 1956. Corporation has no right to enter forcibly to remove the structure. It was also submitted that without preparation of a town development scheme as envisaged Under Section 49 read with Section 50 of the Act of 1973, it is not permissible to carry out the provisions contained in the development plan. 10. On the other hand it was submitted by learned Senior Counsel for the Respondents that the action taken is in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not; but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid; and shall include also the drains on either side and the land whether covered or not by any pavement, verandah or other erection, which lies on either side of the roadway up to the boundaries of the adjacent property, whether that property be private property or property reserved by Government or by the Corporation for any purpose other than a street; Section 330 of the Act of 1956 deals with conversion of streets into public streets. Section 330(1) requires the Commissioner to declare the same to be public streets in exigencies specified therein. Section 330(2) empowers the Commissioner to declare street or part of a street not maintained by Corporation to declare the same to be a public street. The decision has to be taken after inviting objections and appeal can be preferred against such a decision as provided in Section 330(3). Section 330 is extracted hereunder: 330. Power to declare streets, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act has been formed for the area in question. Colonisation is dealt with in Chapter XXIII-A. Chapter XXIV deals with building control under the provisions of Section 293. There is restriction on construction without permission. Under Section 295 Commissioner has the power to refuse erection or re-erection of buildings. Section 296 contains the provision as to grounds on which site of proposed building may be disapproved. Section 297 deals with the grounds on which permission to erect or re-erect building may be refused. Section 299 confers the power upon the Commissioner to direct modification of a sanctioned plan of a building before its completion. Under Section 299A State Government has the power to cancel or revise permission for construction of a building. Section 300 mandates for lapse of sanction after one year from the date of such sanction. Section 302 confers power upon the Commissioner to stop construction unlawfully commenced. Section 303 confers power upon the Commissioner to direct removal of person from a building in which works are unlawfully carried on or which are unlawfully occupied. Erection and use of temporary building is to be approved by Commissioner as pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Director has to consider them as per Section 8(2), afford a reasonable opportunity to all the persons affected thereby of being heard then the State Government may finalise the regional plan with or without modifications. Proviso to Sub-section (2) of Section 9 mandates that in case the State Government modifies the draft regional plan in that case State Government has to publish the same in the Gazette, invite objections and suggestions on the modifications proposed and after giving reasonable opportunity of being heard, has to finalise it. Section 10 of the Act of 1973 provides that as soon as draft plan is published, no person, authority or department of the Government or any other person shall change the use of land for any purpose other than agriculture or carry out any development in respect of any land contrary to the provisions of the draft plan, without the prior approval of the Director or an officer not below the rank of a Deputy Director. Section 10(3) provides that in case any work is carried out in contravention of the provisions of the section, the Corporation or other local authority or the Collector in areas outside such local areas of the authority may cause suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge under this Act. 17. Section 14 deals with preparation of development plan. Section 15 deals with the preparation of existing land use maps and once the existing land use map has been published Under Section 15, Section 16 puts restriction upon the user of the land for any purpose other than that indicated without permission in writing of the Director and no local authority notwithstanding anything contained in any other law, has the power to grant permission for change in the use of land otherwise than as indicated in the existing land use map without the permission in writing of the Director. 18. Section 17 deals with the contents of the development plan. Section 18 deals with the publication of draft development plan prepared Under Section 14 and objections thereto and suggestions in writing have to be invited within 30 days then the Committee Under Section 17A(1) has to consider the objections and suggestions and after giving reasonable opportunity to all persons affected thereby, of being heard, suggest such modifications in the draft development plan as it may consider necessary then it has to be submitted to the Director who in turn, within 30 days has to sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er than ninety days after the publication of the notice under Sub-section (1), consider all the objections and suggestions as may be received within the period specified in the notice under Sub-section (1) and shall, after giving reasonable opportunity to all persons affected thereby of being heard, suggest such modifications in the draft development plan as it may consider necessary, and submit, not later than six months after the publication of the draft development plan, the plan as so modified, to the Director together with all connected documents plans, maps and charts. (3) The Director shall, within 30 days of the receipt of the plan and other documents from the committee submit all the documents and plans so received alongwith his comments, to the State Government. 19. Sanction of development plans.- (1) As soon as may be after the submission of the development plan Under Section 18 the State Government may either approve the development plan or may approve, it with such modifications as it may consider necessary or may return it to the Director to modify the same or to prepare a fresh plan in accordance with such directions as the State Government may deem appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Municipal Corporation and other local authorities as the case may be. They cannot modify and permit the user in contravention thereof. In other words, restriction is imposed upon the owners on enjoyment of the property in violation of the development plan/regional plan, as the case may be. 21. Section 49 of the Act of 1973 deals with the town development schemes. Same has to be prepared under the umbrella of the regional plan and development plan. The town development scheme is prepared by the Town Country Development Authority established under the provisions of Section 38. The same shall be a body corporate under the provisions of Section 39 and its constitution is provided in Section 40. Section 49 of the Act of 1973 is extracted hereunder: 49. Town Development Schemes. - 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 ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government. Development plan is prepared as per the provisions contained in Chapter IV, Sections 13 to 19 and once development plan has been finalized, it is binding on development authorities as well as the Municipal Corporation, Municipal Council and other local authorities functioning in the planning area. Town development scheme can be framed by the development authorities and it may declare its intention to do so with the prior approval of the State Government. In re: Town Planning Scheme of the Act of 1956: 24. Section 291 of the Act of 1956 enjoins upon the Municipal Corporation to prepare town planning scheme and in case the scheme has been sanctioned under the provisions of Town Improvement Act, it is provided by Section 292 of the Act of 1956 that no town planning scheme shall be made by the Corporation. Sections 291 and 292 of the Act of 1956 are extracted hereunder: 291. Town planning scheme. - (1) The Corporation may, and if so required by the Government shall, within six months of the date of such requisition, direct the Commissioner to draw up a town planning scheme, which may, among other things, provide for the following matter, namely: (a) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of land for any purposes even though not involving the erection of building, shall not be inconsistent with the provisions of this Section with respect of buildings. (2) When a scheme has been drawn up under the provisions of Sub-section (1), the Commissioner shall give public notice of the scheme and shall therein announce a date not less than 30 days from the date of such notice by which any person may submit to the Commissioner in writing any objection or suggestion with regard to the scheme which he may wish to make. (3) The Commissioner shall within fifteen days of the date announced under the provisions of Sub-section (2), forward to the Mayor-in-Council the notice together with the objections or suggestions, if any, and his opinion therefor. (4) The Mayor-in-Council, shall within fifteen days of the receipt of the documents relating to the scheme, forward them to the Corporation together with the opinion of the Commissioner and any comments which the Mayor-in-Council may make. (5) The Corporation shall consider every objection or suggestion with regard to the scheme and may modify the scheme in consequence of any such objection or suggestion and shall then f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;). 25. The Act of 1960 provided for various improvement schemes Under Section 30. Section 31 of the Act of 1960 dealt with types of improvement schemes such as general improvement schemes, re-building, re-housing, street, deferred street schemes and development scheme. 10 types of schemes were provided Under Section 31. When scheme was proposed, consideration of representation was also provided. The State Government had the power to sanction, reject or return the improvement scheme as provided in Section 51. In case the State Government sanctioned the scheme it was required to be notified Under Section 52 of the Act of 1960. The Act of 1960 has ceased to be operative in the areas, once the Act of 1973 has been made applicable by establishing the authorities under the provisions of Sections 38 to 40. In our considered view, the expression 'scheme' in Section 292 has to be taken to mean the regional plan, development plan and also to any scheme Under Section 49 framed under the Act of 1973. The provision is not confined to a scheme prepared Under Sections 49 and 50 of the Act of 1973. There cannot be two schemes for the same area. In re: Scope of power of Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 305(1) for its removal. The word 'or' in Clause (b) in-between greater portion of such building and material portion is not disjunctive. First part of Clause (b) has to be read conjunctively with the latter part. Even if greater portion of such building and material portion of such projecting part is read disjunctively, the words used taken down, burned down, fallen down qualify both the exigencies provided in Clause (b). The word 'removal' used in Section 305(1) has to be read for the situation in Clause (a) only. For the situation covered by Clause (b) notice is issued only after happening of the mentioned event and that at the same time, when building is proposed to be re-built, notice can be for setting back of the building. It was also submitted that in a given situation when greater or material portion of the building or projecting part has fallen down but some portion of the building which is still projecting beyond the building line, in that situation Corporation can legitimately ask the owner to remove the remaining projecting portion of the building. It was also submitted that the latter part of Section 305 empowers the Corporat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some portion of the part projecting beyond the regular line' of the public street may be: (a) greater portion of such building which has not fallen down; or (b) that projecting part is verandah, step or some other structure external to the main building; or (c) whenever any material portion or such material part has been taken down, burned down or has fallen down. All the abovesaid exigencies are covered in the ken of Section 305(1). Section 305 only contemplates issuance of a notice, in the case of a public street that the part projecting is beyond the regular line of public street and is greater portion or material portion of such building or external portion to the main building, shall be removed. It has to intimate its intention to remove the structure. In case any portion of such material part has been taken down, burned down or has fallen down, the Corporation may require by notice such portion shall be set back to. 30. We are not at all impressed by the submission that Section 305 contemplates only voluntary removal by the owner of the building. Section 305 is a wholesome provision with respect to maintaining the regular line of a public street, existing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h building is projecting beyond the regular line of public street, has to be read with respect to a building which has not fallen down, taken down or burned down. The word 'or' in Section 305(1)(b) used between greater portion of such building or whenever any material portion of such building has to be read disjunctively. Nonetheless 'removal' is contemplated in all the exigencies. In case it has been taken down, burned down or fallen down, it may require the material portion to be set back and remaining portion can be removed in the latter exigency of Clause (b) itself. 32. In our opinion, a notice can be issued by the Corporation for removal of the existing structure also. The opening part of Section 305(1) and its latter part after Clause (b) make it abundantly clear that a building or a part of the portion which projects into the periphery of regular line of public street, can be removed. The interpretation suggested on behalf of the Appellants that in case the building has been taken down, burned down or fallen down, only in that exigency action can be taken Under Section 305(b) and not otherwise, would render the provision contained in Section 305 and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, then a notice shall be required to be issued; and on failure the Commissioner is empowered to remove; whereas the provisions of Section 305 cast a mandate upon the Corporation to remove whatever is projecting beyond the regular line of public street. The intendment of the aforesaid provisions is different, hence render no help or guide so as to interpret the provisions of Section 305. In fact when all the provisions are considered, the interpretation of Section 305 is fortified that it primarily mandates the Corporation to take action of removal on satisfaction of exigencies specified therein. In re: Possession/deemed to be part of public street and vesting Under Section 305 of the Act of 1956: 36. Coming to question as to when vesting takes place. As soon as the building or the projecting part has been removed or when the Corporation has issued a notice when such re-building shall be set back or to the front line, the line added by such action by setting back or removal, shall henceforth without any further formalities, be deemed to be a part of public street and shall vest in the Corporation. Vesting does not depend upon the volition of the owner. Otherwise no public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of vesting has been taken into consideration and discussed by this Court in the said decision. This Court has laid down that while the meaning of the legal fiction has to be ascertained for what purpose it is created and should be carried as far as necessary to achieve the legislative purpose, the word 'vest' in a statute has different meaning in different contexts. This Court has also held that vest/vested therefore may or may not include transfer of possession, the meaning of which depends on the context in which it has been used and the interpretation of various other related provisions. This Court in Hari Ram (supra) has discussed the meaning of such legal fiction thus: 18. The legislature is competent to create a legal fiction, for the purpose of assuming existence of a fact which does not really exist. Sub-section (3) of Section 10 contained two deeming provisions such as deemed to have been acquired and deemed to have been vested absolutely . Let us first examine the legal consequences of a deeming provision . In interpreting the provision creating a legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal is made, vesting follows and possession stands transferred as part of public street. When we consider the deeming fiction in Section 305 and vesting provision, de jure and de facto possession automatically vested in the Corporation on the happening of the exigencies as provided in Section 305. 39. It was submitted on behalf of Appellants that there is a conscious omission in the provision contained in Section 305 with respect to the power of entry, removal or to take possession. The Appellants have relied upon the decision of this Court in The Commissioner of Sales Tax, U.P. Lucknow v. M/s. Parson Tools Plants, Kanpur, (1975) 4 SCC 22, thus: 16. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so would be entrenching upon the preserves of Legislature , the primary function o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w-applying organ; and the function of creating law is not performed by jurisprudence interpreting law. Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm. Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law . According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied: he must 'interpret' those norms (p. 348). Interpretation therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the application of law . The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal 'correctness' of this decision is based on the statute itself. This theory describes the interpretive procedure as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision Parliament would have made an be known with precision, though not in exact language, had the error in the bill been noticed. 43. There is no dispute with the principles laid down by this Court in the aforesaid dictums. However the language of Section 305 is plain, simple and clear. In our opinion there is no defect in the phraseology used. The exigencies when the notice can be issued including the vesting part and deeming fiction are very clear. In view of aforesaid discussion, we do not find any deficiency in the phraseology used in Section 305 of the Act of 1956, as such we do not venture to add, subtract, amend or by construction make up the deficiencies. We find that there is no omission or lacunae, much less casus omissus as submitted, in the provisions contained in Section 305 of the Act of 1956. 44. In the case of Municipal Corporation, Bhopal, the action has been taken as per the development plan/master plan, 2005 notified in the year 1995. With respect to Indore, action has been taken as per the Master Plan of 1991 notified in the year 1975 and Master Plan of 2021 has also been notified. Both are the cases of BRTS corridor project. As such action has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 56 of the Act of 1973 land has been acquired for town development scheme by development authorities, the power cannot be treated to be with the Corporation to vest the property in the public street without its acquisition under the provisions of Section 305 of the Act of 1956 without acquisition Under Section 79 thereof. It is necessary to notice the provisions contained in Sections 78 and 79 of the Act of 1956 and Section 56 of the Act of 1973. The provisions contained in Sections 78 and 79 of the Act of 1956 are extracted hereunder: 78. Acquisition of immovable property or easement by agreement.- (1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall acquire, any immovable property, such property may be acquired by the Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices, or at rates or prices not exceeding such maxima, as shall be approved by the Mayor-in-Council either generally for any class of cases or specially in particular case. (2) Whenever, under any provision of this Act the Commissioner is authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e years therefrom, proceed to acquire by agreement the land required for the implementation of the scheme and, on its failure so to acquire, the State Government may, at the request of the Town and Country Development Authority proceed to acquire such land under the provisions of the Land Acquisition Act, 1894 (No. 1 of 1894) and on the payment of compensation awarded under that Act and any other charges incurred by the State Government in connection with the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed. Provided that the said agreement may contain such conditions and executed in such manner as may be prescribed. 48. In order to understand the procedure of compensation prescribed Under Section 305, we have to take note of the provisions contained in Sections 306 and 387 of the Act of 1956 also. The provisions are extracted hereunder: 306. Compensation. - (1) No compensation shall be claimable by an owner for any damage which he may sustain in consequence of the prohibition of the erection of any building. (2) The Corporation shall make reasonable compensation to the owner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of land, follow as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court: Provided that- (a) no application to the Collector for a reference shall be necessary, and (b) the court shall have full power to give and apportion the costs of all proceedings in manner it thinks fit. (4) In any case where the compensation is claimed in respect of land and the Panchayat has given a decision, either party, if dissatisfied with the decision, may within a month of the date thereof apply to the District Court and the matter shall be determined by the District Court in accordance with the provisions of Sub-section (3). (5) In any case where the compensation is claimed in respect of any land or building, the Corporation may after the award has been made by the Panchayat or the District Court, as the case may be, take possession of the land or building after paying the amount of the compensation determined by the Panchayat or the District Court to the party to whom such compensation, may be payable. If such party refuses to accept such compensation, or if there is no person competent to aliena ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uisition of land as provided in Sections 78 and 79 thereof. 50. In The Principles of Statutory Interpretation by G.P. Singh, 13th Edn. 2012, Chapter 2 in which it has been laid down that inconsistency and repugnancy to be avoided and provisions should be harmoniously construed, the author has observed thus: It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. Such a construction has the merit of avoiding any inconsistency or repugnancy either within a Section or between a Section and other parts of the stature. It is the duty of the courts to avoid a head on clash between two Sections of the same Act and, whenever it is possible to do so, to construe provisions which appear to conflict so that they harmonise . It should not be lightly assumed that Parliament had given with one hand what it took away with the other . The provisions of one Section of a statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them . The same Rule applies in regard to Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m special things. Osborn's Law Dictionary] and Generalibus specialia derogant [Special things derogate from general things. Osborn's Law Dictionary]. If a special provision is made on a certain matter, that matter is excluded from the general provision.[Venkateshwar Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828: (1966) 2 SCR 172; CIT, Patiala v. Shahzada Nand Sons, AIR 1966 SC 1342, p. 1347: (1966) 3 SCR 379; State of Gujarat v. Patel Ramajibhai Danabhai, AIR 1979 SC 1098, p. 1103; 1979 (3) SCC 347; State of Bihar v. Yogendra Singh, AIR 1982 SC 882, p. 886:, (1982) 1 SCC 664; Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, p. 47: AIR 1984 SC 1543; State of Rajasthan v. Gopikishan, supra, p. 1756]. Apart from resolving conflict between two provisions in the Act, the principle can also be used for resolving a conflict between a provision in the Act and a Rule made under the Act. Further, these principles have also been applied in resolving a conflict between two different Acts and two provisions in the Constitution added by two different Constitution Amendment Acts. and in the construction of statutory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the principle acceptable in accordance with law. It cannot be fanciful or arbitrary one as suggested by the Appellants. 52. The submission raised by the Appellants that for acquisition of land, Sections 78 and 79 should be resorted to for the purposes mentioned in Section 305 cannot be accepted for yet another reason, if the provision as to public street is made dependent upon the acquisition of land, the very purpose behind the provisions of Section 305 would be frustrated as well as the public interest, there is already a regular line of public street fixed under development plan and is binding Under Section 19(5) and Section 25 of the Act of 1973. Various rights of ownership which ordinarily vest in an owner, are restricted by the regional plan, development plan or the town development scheme, as the case may be. User of the owner's land, property cannot be in derogation to any of them. Development plan is binding upon the Corporation and local authorities and all concerned including the owners. Though they can transfer the property but subject to such restrictions which the property will carry with it. If the land falls in a regular line of public street, no constru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 78/79 of the Act of 1956 should be resorted to. Reliance has been placed on Afjal Imam v. State of Bihar and Ors., (2011) 5 SCC 729 wherein this Court has considered the basic Rule of harmonious construction, when cross reference of relevant provisions should be made and in order to reconcile two apparently inconsistent provisions, one can be read as subject to the other and if necessary reading down of the provisions has to be made. We do not find any substance in the submission as for building line with respect to public street, a specific provision is contained in Section 305 which will prevail over the general provisions as held by us. Thus the submission is rejected. 55. It was also submitted that when the law requires a thing to be done in a particular manner, that thing can be done in that manner only and other modes of doing it are excluded. For this reliance has been placed on the decisions in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors., (2003) 2 SCC 111 on the following passage: 40. The statutory interdict of use and enjoyment of the property must be strictly construed. It is well settled that when a statutory author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own and set aside by the court in its writ jurisdiction, on the application of Taylor v. Taylor (1875) LR 1 Ch D 426 and several judgments of this Court which has followed this decision (supra). There is no dispute with the aforesaid propositions but in the instant cases the specific procedure prescribed for widening of the public street to remove the projection in the regular line of public street has been adopted which is a wholesome procedure. Thus there is no violation of law as the prescribed mode is being followed. In re: Development Plan and Town Planning Scheme: 57. It was also submitted that there is difference between acquisition and reservation. A development plan merely creates a restriction on user of the property and the land does not vest in the State or the development authority on publication of the master plan/development plan. Reliance has been placed on the decision of this Court in Girnar Traders (3) v. State of Maharashtra and Ors., (2011) 3 SCC 1. Reference has been made to para 155 and the same is extracted hereunder: 155. The Court has to keep in mind the clearly stated legal distinction between reservation and designation on one hand and acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determined by the Commissioner shall be the final building line for the purpose of Section 305 then on that ground also Section 305 would become arbitrary, discriminatory and violative of Article 14 of the Constitution. It is reiterated in para 5.17 that there has to be the building line determined only after following the procedure and rigors of Section 291. Again in para 5.18 non-compliance with the provisions of Section 291 has been pleaded. In para 5.19 it has been pleaded that until the Corporation undertakes a statutory exercise of acquisition as mandated under the Act of 2013, they are not legally entitled to take physical possession of the land. In our considered opinion the pleadings in paras 5.16, 5.17, 5.18 and 5.19 do not at all amount on fact or on legal aspect that there was no scheme under the provisions of Sections 49 and 50 framed by the Bhopal Development Authority under the Act of 1973. Thus the Respondent-Corporation was not required to reply in the matter of Bhopal what has not been averred by the Appellants with respect to framing of the scheme Under Sections 49 and 50 in the aforesaid writ petitions. 59. The interpretation suggested upon Section 292, as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. It is not in dispute that Section 5A of the Act confers a valuable right in favour of a person whose lands are sought to be acquired. Having regard to the provisions contained in Article 300A of the Constitution, the State in exercise of its power of 'eminent domain' may interfere with the right of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid. 7. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under Sub-clause (iv) of Clause (f) of Section 3 of the Act. But the same would not mean that the State is the sole judge therefor and no judicial review shall lie. (See Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) supp (1) SCC 596) It was further stated: (SCC p. 640, para 29) 29. The Act is an expropriatory legislation. This Court in State of M.P. v. Vishnu Prasad Sharma, AIR 1966 SC 1593 observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exercised by the State and property expropriated. No abstract principles could be laid. Each case must be considered in the light of its own facts and setting. The phrase 'deprivation of the property of a person' must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300A gets attracted to an acquisition or taking possession of private property, by necessary implication for public purpose, in accordance with the law made by Parliament or a State Legislature, a Rule or a statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner's consent. Prima facie, State would be the judge to decide whether a purpose is a public purpose. But it is not the sole judge. This will be subject to judicial review and it is the duty of the court to determine whether a particular purpose is a public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall Under Article 300A nor every exercise of eminent domain an acquisition or taking possessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction and a nullity. This Court also held that a draft development plan which has not attained finality cannot be held to be determinative of the rights and obligations of the parties and can never be implemented and end use of the land is not frozen until a final sanction plan comes into force. This Court also held that the power to freeze the land use Under Section 50(1) read with Section 53 of the Act of 1973 can only be validly exercised for implementing a final sanctioned development plan. In the instant cases it is not in dispute that there is a final sanctioned development plan for Bhopal as well as for Indore and pursuant thereto action has been taken Under Section 305. In Indore the town development scheme exists and for Bhopal, absence of town development scheme Under Sections 49 and 50 has not been pleaded by the Appellants. This Court in Chairman, Indore Vikas Pradhikaran (supra) has laid down thus: 33. The Act envisages the following steps which are required to be complied with: (a) Constitution of a planning area by notification Under Section 13. (b) Compliance with the detailed procedure set out Under Sections 14 to 19, leading to sanction of the develop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refor is declared which entails serious consequences and, as noticed hereinbefore, by reason thereof, a total embargo is imposed both on land use as also the development. For the said purpose, a time-limit within which a draft town planning scheme has to be finalised is provided but the same can be subject to modification by the State which ordinarily should be with a view to deal with the same in line with the final development plan. 72. Land use, development plan and zonal plan provided for the plan at macro-level whereas the town planning scheme is at a micro-level and, thus, would be subject to development plan. It is, therefore, difficult to comprehend that broad based macro-level planning may not at all be in place when a town planning scheme is prepared. 73. 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 buildin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preparing the scheme at micro level as it is not authorized to alter/modify the said provision of the development plan as it has no power to alter or modify the width of the road or building line as fixed in the development plan and is bound to carry out the same. For such matters which do not require micro-planning, it would not be necessary to undertake exercise of Section 49 read with Section 50, publish a draft plan, Under Section 50(3) invite objections and suggestions and to decide the same issue of development plan once over again which is final, conclusive and binding and requires no further planning. If any modification of development plan is permitted, it would defeat the mandate of Sections 19(5) and 25 of the Act of 1973, and in case the authorities cannot alter the width of the road or modify development plan, it would be a futile exercise and exercise in futility is not envisaged by law. The decision of this Court in Indore Vikas Pradhikaran (supra) reinforces and buttresses our conclusion that it is a development plan which has to prevail. 63. The Appellants have also placed reliance on Rajendra Shankar Shukla and Ors. v. State of Chhattisgarh and Ors., (2015) 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies of local panchayats and municipalities, etc. A zonal plan is mandated to be prepared only after the publication of the development plan. Section 20 of the Act reads thus: 20. Preparation of zonal plans.--The local authority may on its own motion at any time after the publication of the development plan, or thereafter if so required by the State Government shall, within the next six months of such requisition, prepare a zoning plan. Further, Section 21 of the Act reads thus: 21. Contents of zoning plan.--The zoning plan shall enlarge the details of the land use as indicated in the development plan.... (Emphasis supplied) Thus, it is evident from the language of Sections 20 and 21 of the Act, that a zonal plan can be prepared only in adherence to the development plan which in the present case is the Raipur Master Plan of 2021. 69. Next, Section 49 of the Act which provides for the provisions for which a town development scheme can be prepared, has to be read along with Section 21 of the Act, which clearly mentions that the land required for acquisition by the Town and Country Development Authority for the purpose of any development scheme has to be laid down in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. In the said case the provision of Section 5(4) of the Taxation on Income (Investigation Commission) Act, 1947 was struck down on the ground of being violative of Article 14. Submission advanced was that it gave arbitrary power to the Commission to pick and choose and the Clause was highly discriminatory in character inasmuch as any evasion whether substantial or insignificant came within its ambit as well as within the purview of Section 34 of the Indian Income Tax Act. This Court has observed that it is open to the State to make the classification to determine who should be regarded as a class for the purpose of legislation and in relation to a law enacted on a particular subject but the classification to be permissible must be based on some real and substantial distinction bearing a just and reasonable relation to the objects sought to be attained and it cannot be made arbitrarily and without any substantial basis. In our opinion, the provision of Section 305 when it deals with the public streets and removal of building falling in regular line is a wholesome one and being a special provision, based on classification made for the purpose of Section 305 as to public street canno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea of discrimination at all. Even otherwise we have found provisions of Section 305/306 to be fair, just and reasonable and merely because for other places some other procedure has been resorted to, cannot be a ground to urge discrimination. Hence, the submission based upon the dictum of this Court in Nagpur Improvement Trust (supra) has no legs to stand. 66. Reliance has also been placed on the decision in P. Vajravelu Mudaliar v. The Special Deputy Collector, West Madras, AIR 1965 SC 1017. In the said decision this Court came to the conclusion that on a comparative study of Land Acquisition Act, 1894 and Land Acquisition (Madras Amendment) Act, it was clear that if it becomes clear that if a land is acquired for a housing scheme under the Amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for a public purpose like hospital under the Principal Act. The classification thus sought to be made by the Land Acquisition (Madras Amendment) Act between persons whose lands are acquired for other public purposes has no reasonable relation to the object sought to be achieved. Thus this Court has held that under the Amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review by constitutional courts on the grounds laid down by this Court. It was held that the concerned Karnataka State Act having received the Presidential assent Under Article 31A was immune from challenge under Articles 14 and 19. This Court also laid down that when the validity of acquisition of property is questioned, grounds for challenge to a statute enacted to acquire property but the statute is not protected by Articles 31A, 31B and 31C of the Constitution of India, after deletion of Article 19(1)(f), such statutes can be challenged for violation of Article 14, violation of basic structure of Constitution, violation of Rule of Law which amounts to violation of basic structure or for lack of legislative competence. This Court has also laid down that when validity of acquisition of property is under a statute which is guarded by protective umbrella of Articles 31A, 31B and 31C, such statutes can still be challenged Under Article 32 or 226 for violation of Rule of law if the violation is of serious nature which undermines basic structure of the Constitution, violation of the basic structure of the Constitution or for lack of legislative competence. In I.R. Coelho (Dead) by L. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law as provided in Article 300A is immune from challenge before a constitutional court for violation of Articles 14, 21 or the overarching principle of the Rule of law, a basic feature of our Constitution, especially when such a right is not specifically incorporated in Article 300A, unlike Article 30(1-A) and the second proviso to Article 31-A(1). 194*. Article 31A was inserted by the First Amendment Act, 1951 to protect the zamindari abolition laws and also the other types of social, welfare and regulatory legislations affecting private property. The right to challenge laws enacted in respect of subject-matter enumerated Under Article 31A(1)(a) to (g) on the ground of violation of Article 14 was also constitutionally excluded. 198. Article 300A, unlike Articles 31A(1) and 31-C, has not made the legislation depriving a person of his property immune from challenge on the ground of violation of Article 14 or Article 21 of the Constitution of India, but let us first examine whether Article 21 as such is available to challenge a statute providing for no or illusory compensation and, hence, expropriatory. 200. The question of applicability of Article 21 to the laws protected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r sine qua non for acquisition. Adequacy of compensation cannot be questioned in a court of law but at the same time compensation cannot be illusory. In Rajiv Sarin (supra), this Court has laid down thus: 78. When the State exercises the power of acquisition of a private property thereby depriving the private person of the property, provision is generally made in the statute to pay compensation to be fixed or determined according to the criteria laid down in the statute itself. It must be understood in this context that the acquisition of property by the State in furtherance of the directive principles of State policy is to distribute the material resources of the community including acquisition and taking possession of private property for public purpose. It does not require payment of market value or indemnification to the owner of the property expropriated. Payment of market value in lieu of acquired property is not a condition precedent or sine qua non for acquisition. It must be clearly understood that the acquisition and payment of amount are part of the same scheme and they cannot be separated. It is true that the adequacy of compensation cannot be questioned in a court o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87 has to be taken to be the principle of reasonable compensation even in Sections 305 and 306. Monetary value has to be worked out and it can be balanced with FAR in appropriate cases which is quite reasonable method of arriving at compensation as discussed hereafter. 71. It was submitted by the Respondents that with respect to the principle of determination of compensation, a Constitution Bench of this Court has considered more or less similar provision contained in Sections 212 and 216 of the Bombay Provincial Municipal Corporation Act, 1949. It was found to have qualified to Section 299 of the Government of India Act in Municipal Corporation of the City of Ahmedabad and Ors. v. State of Gujarat and Ors., (1972) 1 SCC 802. The question of payment of compensation for acquiring the land lying within line of public street came up for consideration. A question arose whether Corporation is liable to provide compensation. First proviso to Section 216(1) which provided for increase or decrease in value in the case of set-back and adjustment of compensation accordingly. Question also came up for consideration whether principle of willing seller and willing buyer is applicable in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of this Act, the Commissioner or such other officer as may be authorised by him in this behalf shall, after holding such inquiry as he thinks fit, determine the amount of compensation to be paid Under Section 389. This determination, however, is not final because two appeals are provided. Under Section 391 it is provided as under: Any person aggrieved by the decision of the Commissioner or other officer Under Section 390 may within a period of one month, appeal to the Judge in accordance with the provisions of Chapter XXVI. The Judge means Under Section 2, Clause (29) the Judge of the Court of Small Causes in the City of Ahmedabad. Section 411 provides for a second appeal to the District Court. It says An appeal shall lie to the District Court (aa) from a decision of the Judge in an appeal Under Section 391 against an assessment of compensation under Clause (f) of Sub-section (1) of Section 389 . As regards the procedure to be followed in respect of these appeals, provision is made in Section 434 Sub-section (1) whereof is Save as expressly provided by this Chapter (Chapter XXVI) the provisions of the Code of Civil Procedure, 1908, relating to appeals from or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed in Chapter XIV is contained in Section 212. The regular line of the street as prescribed Under Section 210 often passes through the properties of owners abutting on the streets and it is impossible to widen the streets unless parts of lands belonging to the owners are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. Therefore, in the first instance the Section requires that the Commissioner shall issue a show-cause notice why the building or a part of the building which falls within the line of street should not be pulled down with a view to release the land underneath for the purposes of the street. If after hearing the owner the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owner to pull down the offending building or part of building within a certain time. If the owner cooperates, he will himself remove the offending structure and release the land underneath it for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consideration and allowed for in determining the amount of such compensation . Proviso (ii) states that if any such increase in the value exceeds the amount of loss sustained or expenses incurred by the said owner, the Commissioner may recover from such owner half the amount of such excess as a betterment charge . Proviso (i) implies that the compensation payable under Sub-section (1) is liable to be increased or reduced after the set-back. It envisages that by reason of the set-back or the widening of the street the property which still remained with the owner is likely, on account of the new situation, either to increase or decrease in value. If that happens, that is to be taken into consideration and the amount determined under Sub-section (1) will have to be adjusted accordingly. The High Court is of the view that proviso (1) is unobjectionable as it is a principle governing the determination of compensation and can be rightly employed in determining the compensation for the property acquired. The High Court, however, was not inclined to hold that proviso (ii) lays down any principle for determination of compensation payable for the property acquired. It held, nevertheless, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew. What is meant by specification of principles for determining compensation? In State of Gujarat v. Shri Shantilal Mangaldas and Ors., (1969) 1 SCC 509, this Court observed: Specification of principles means laying down general guiding Rules applicable to all persons or transactions governed thereby. Under the Land Acquisition Act compensation is determined on the basis of 'market-value' of the land on the date of the notification Under Section 4(1) of that Act. That is a specification of principle. At a later stage the Court again observed at p. 362: Rules enunciated by the courts for determining compensation for compulsory acquisition under the Land Acquisition Act vary according to the nature of the land acquired. For properties which are not marketable commodities, such as lands, buildings and incorporeal rights, valuation has to be made on the application of different rules. Principle of capitalisation of not rent at the current market rate on guilt-edged securities, principle of reinstatement, principle of determination of original value less depreciation, determination of break-up value in certain types of property which have out-grown their utility, and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation. 16. As regards the manner of determination of compensation, it is provided in Section 390 of the Corporations Act. Under that Section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation to be paid. Either the Commissioner or an Officer authorised by him has to hold an appropriate enquiry before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Causes Court Under Section 391 and a second appeal to the District Court Under Section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether the enquiry is made in accordance with normal judicial procedures for evaluating the loss by the application of methods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imports judicial norms. There is no limitation on the power of the appellate Judge. Thus this Court held that the provisions contained in Sections 212, 216 and 389 were not violative of the provisions of Section 299 of the Government of India Act, 1935 or Article 31 of the Constitution. The case was remanded by this Court to the High Court for examining infringement of Articles 14 and 19 after laying down the aforesaid propositions. We have on merits found no violation of Articles 14 and 19 also in the instant cases. 72. It was also submitted that the provisions of Sections 305 and 306 are required to be read down by incorporating the requirement of computation of compensation in the light of the principles laid down under the Act of 2013 while correlating it with the provisions of Section 387 of the Act of 1956. In view of the aforesaid dictum of this Court in Municipal Corporation of City of Ahmedabad (supra), we find no scope to entertain the submission and the reliance by the Appellants on Yogendra Kumar Jaiswal v. State of Bihar and Ors., (2016) 3 SCC 183 is of no avail. 73. We find the principles laid down in Sections 305, 306 and 387 are quite reasonable. Reasonable co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... removal and vesting. Reliance on the decision in K.N. Palsikar (supra) so as to contend that the possession should be taken after payment of compensation is totally misplaced. This Court has simply narrated in para 11 what was held by the High Court and the points which were decided were capsulised by this Court in para 12 of the report. The aforesaid question was neither raised nor decided by this Court. This Court has not laid down any such proposition in K.N. Palsikar (supra), as canvassed. 75. Reliance has also been placed on a decision of this Court in Bhusawal Municipal Council v. Nivrutti Ramchandra Phalak and Ors., (2015) 14 SCC 327 in which this Court has considered right to property Under Article 300-A and held that such right is a human right and delayed payment of compensation leads to alienation of Section of society against the system, further public purpose that is setting up of school, is no justification for delaying/denying compensation in the garb of undertaking developmental projects, without paying the compensation to the concerned landowner as per the statutory provisions. It was also submitted that the time period was not prescribed within which compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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