YOGENDRA PAL vs. MUNICIPALITY, BATHINDA

YOGENDRA PAL AND OTHERS A v. MUNI CIPALITY, BHA TINDA AN D ANR . JULY 15 , 1 99 4 [ P.B . SAWANT AND DR . AS . ANA ND , JJ.] B Muni c ipaliti ej ~Pwrjab M uni cipal Act , 1911-Section 192(l )( c)- Haryana Municipal Act, 197 ~S ec ti on 203(/)( C)-Con s ti tutionality of-Co n- stitll ti on of India, 195(}-Art s. 14, 31 (2), 366( 10 ), 372 read with Art. 19 (i)(f) & A1t. 31. C Mu nicipalitie s-Punjab Municipal Act , 1911-Sections 192(1 )( C) and 169-Scope of-Contra st of the prov isions-'T ran sfer' euphemism for acquisi- tion-No provision for payment of co mp ensation if upto 25 % of holding transfe"ed-<:ompensation if holding m•er 25%, but upto 35 % tran s- fe JT ed--No guide lin es for amo unt or the time of co mp ensation. D. Constitution of In dia, 195(}-Art. 19(J)(f) and Art. 31 (2)--Effect of Art. 31 (5)-Sa ving of "e xi s ting la w' '-lmpugned provisions as "existing Law"-Cltallenge fails. Con stitution of India, 195(}-Arts. 136 & 32-Co urt 's power to mould E relief In 1969 , the State Government of Punjab declared an area as "un- built" under Sec. 3(18)(b) of Punjab Municipal Act, 1911. Later a part of that land belonging to the writ petitioner was transferred to the Municipal Committee for a Town Planning scheme u/s 192 (1)(c) without payment of F compensation. The said stat utes which gave the Municipal Committee p owe r of acquisition only provided that the total land transferred could not exceed 35% of the landowner's holding and the land transferred without payme nt could not exceed 25% of the landowner's land. The writ petition which challenged the provision was di smissed on account of laches and a G precedent. In this cou rt , the petition er questioned the validity of the transfer of land wi thout payment of compensation and the constitutionality of Sec. 192(1) ( c) and similarly other pet itioner s challenged validi ty of Sec. 203(1)(c) of the Haryana Municipal Act. H 6 93 1 6 J -l SU PR H IE COU RT REPORTS !1 99 4] SUPP . 1 S.C.R. A The appellant contended that compulsory transfer to the Committee for the Town Planning Scheme without pa)ment of compensation was ultra rir es Art. 19(1)(1) r/w Art. 31. and the Committee's unbridled discretion in transferring land of some and not touching land of others violated Art. 14 of the Constitution. B The respondent' s position was that the law being 'existing law' was saved by Art. 31 (5). Also, the transfer which was effected for framing of the Town Planning Scheme did not divest the ownership or possessory rights of the land owner and that as the market value of the remaining land of the landowner increased with the development they were not entitled to any C additional compensation. Dismissing the appeals and the \\Tit petition, this Court HELD : 1.1. The Municipal Committee had been given authority to transfer the land from the land-owner to itself, either by paying compensa- tion or without, depending upon its discretion. No guidelir~es had been D provided as to when compensation was or was not to be paid to the land- owner. If the land transferred from the landowner was less than 25 % of his holding, no obligation had been placed to pay any compensation. Further, the Municipal Committee had been given discretion to pay compensation without laying down the principles therefore, ifthe land acquired was above 25% of the landowner's holding. Thus, the provisions of section 192(1)(c) · of the Punjab Municipal Act, 1911 and section 203(1)(c) of the Haryana Municipal Act 1973 were violative of Article 14 of the Constitution and void with effect from the date of the judgment. [703-8, D-E; 707-G] E 1.2. The expression "for public purposes including use as public streets by owners of land" did not mean that the land would be transferred to the Municipal Committee only for such public purpose which could be made use of by owners of the land from whom the land was transferred. Utility to members of public in general was envisaged. If the transferor landowne. rs also benefited by such purpose as a member of the public it G made no difference to the position in law that he was not the exclusive beneficiary of such purpose. [704-A-C-D] F 1.3. There is no provision in the Act to suggest that inspite of the land being used for public purpose, the possession, ownership or occupation of the transferred land remained with the landowner and that he could deal H with or dispose of the same as desired. It was obvious that the use of the 1 ·. YOGEN DRA M UNIC IP A LITY 695 word ' transferred' was an euphemism for an1uisition. [70.t-E-F; 706-F] A 1.4. Even if the transfer increased the value of the remaining land, at the same time it contributed to the increase in the value of land of all other landowners and similarly benefited them. There was no for the land owner whose land was " transferred " to alone pay for the increase in value of hi s remaining land. Only the remaining land of the tran sferor landowner B benefited by such increase in value, if any, but the whole of the land in possession of the other landowners also benefited by the accretion in value. Thus on both accounts there was a clear violation of Article 14 of the Constitution. In cases where the landowner was unable to dispose the property the accretion in value may be a burden as various taxes were C calculated on the market value of the property. [707-8-C] 1.5. was found to be problematic and speculative as to whether the It appreciation in value would be equivalent to or more than the value of land transferred assuming the take over for the public purpose increased the value of the remaining land. [707-D-E] D Om Praka sh v. Municipality of Bhatinda, AIR (1980) P&H, 254, Over- ruled. Ajit Singh v. State of Punjab, AIR (1967) SC 856 and Prakash v. [1986] 1 SCC 581, distinguished. Amichand Shah State of Gujarat, E 1.6 Under Section 169, the land was to be acquired by payment of compensation for the whole of it and if within 25 years of such acquisition it was not required for use as a public street it was to be restored to the original landowner subject to his paying for improvements. However, under Section 192(1 )( c) , no compensation was payable to the landowner when the F land "transferred" was below 25% of the total land of the landowner and the rate of compens ation it was above 25% was in the discretion of the Municipal Committee. When the land was so transferred for use as public street under Section 192(1)(c). the land was to be remain forever with the Municipal Committee and there was no provision for its restoration to the G landowner. Thus, there was a distinct inconsistency between the two sec- tions. [706-A-D] 2. The so called transfer, which was nothing but acquisition, was effected prior to 20.06.79. Being without payment of compensation, it was hit by Art. 31 (2) of the Constitution as it stood prior to 20.06.79 which H 696 SU PR EME COU RT REPOR TS [1 994 ) SU PP. l S .C. R. A barred compulsory ;1cqoisirion/rrc1uisition save for a public purpose and save by authority of \'l.Won payment of compensation. However, Article 31 (5) saved the provisions of any 'existing laws' from the operation of Art. 31(2). Since both statutes were 'existing laws' they did not violate Article 31(2). [710-B-C; E] B 3. The provisions of Section 192(1) (c) of the Punjab Municipal Act, 1911 and of Sec. 203 (1 ) (c) of the Haryana Municipal Act 1973 were violative of Art. 14 of the Constitution and void prospectively. The Court could mould the relief to meet the exigencies of the circumstance s and also make the law laid down by it pro spective in operation , as it would create total chaos and an unmanageable situation for the Municipal Committee if the C said provisions of the respective s tatutes and the land acquisitions made thereunder were declared void with retro spective effect. [712-F-H; 713-B] J. C. Go lak Nath & Or s. v. Sta te of Punjab & Anr., [1967) 2 SCR 762, relied on. D C IVIL APPELLATE/ ORIC -; JN AL .J U RI S DI CTION : Civi l Appeal No. 818 of 1986 Etc. Et c. From th e Judgme nt a nd Order <lat ed 1 2.4. 1 985 of th e Punj ab & Ha ry ana High Co urt in C.W . P. No . 53 of 1 979 . E Mr s. S. Bagga for th e Appellant. H. N. Salve, AK. Mahajan, Ms . M. Moolchan<lani a nd Mahabir Singh for th e Appellants in C.A. No . 81 4-16/ 86 . M.S . Gujarat, Anand V. Pa lli , Atul Sharma Mrs. R ak hi Pa lli , J.D. F Jain, G.K. Bansal and M s. Indu Ma lh otra fo r th e Respo nd en ts. The Judgment of the Co urt was d elive red by SAWANT, J. This is a group of appeals a nd a writ petition. Although G the facts differ, they rai se a common question of l aw, viz ., whether th e provi sio ns of Section 192(1)(c) of the Punj ab Municipal Act, 1911 and th e corresponding provis ion s of Section 203(1)(c) of th e Har ya na Municipal Act, 1973 for compulsory transfer of t he la nd to th e Municipal Committees· wi th o ut payme nt of co mpen sa ti on, are va lid . 2. For th e purpose of this co mm on judgment, we prop ose to narrate H YOGENDRAv. MUNICIPALITY (SA WANT, J.] 697 the facts in Civil Appeal No. 818 of 1986. That appeal is directed against A the decision dated 12th April, 1985 of the Division Bench of the Punjab & Haryana High Court in a group of five writ petitions. 3. On 17th November, 1969, the State Government, under Section 3 (18)(b) of the Punjab Municipal Act, 1911 (hereinafter referred to as the 'Act') declared an area admeasuring 22 . 23 acres as unbuilt. The said area B was discribed in the Notification as pocket No. 6. Thereafter, on 11th May, 1976, the State Government under Section 192(3) of the Act sanctioned a Town Pfanning Scheme drawn up by the Municipal Committee under Section 192(1) of the Act. Under the said Scheme the said area of 22.23 acres was transferred to the Municipal Committee in terms of the provisions of Section 192[1](c) of the Act. The said area included land C admeasuring 11279 sq. yards owned by the writ petitioners before the High Court. Since no compensation was paid for the land, the writ petitioners challenged the transfer of the land as illegal, it being without payment of compensation. The petitioners also assailed the vires of Section 192[1](c) of the Act. The challenge to the transfer of the land was also on other D grounds with which we are not concerned here. The High Court dismissed the writ petitions on the ground, among others, that the vires was no longer Om Prakash open to challenge since it was upheld by the High Court in v. 25~ . Municipality of Bhatinda and Anr ., AIR (1980) P&H The Court also held that the writ petitions suffered from !aches and hence rejected the challenge to the validity of the Scheme on that account. Again, we are not E concerned here with the other grounds on which the writ petitions were dismissed. Admittedly, the challenge to the vires of Section 192[1](c) has been repelled by the High Court in other connected matters also, on the ground that the issue had been foreclosed by the aforesaid decision of the High F Court in Om Prakash v. Municipality of Bhatinda. We are, therefore, concerned with the challenge to the constitutional validity of Section 192[1](c) of the Act. In Om Prakash v. Bhatinda Municipality (supra) the validity of the pro vis ions of section 192 (1) (c) of the Punjab Municipal Act, 1911 directly G fell for con s!dP .ration there. The validity was challenged on the grou"d that the provision violated Articles 14, 19 (1)(f) and 31 of the Constitution. The violation of Article 14 was alleged on the ground that the provisions conferred unlimited, unguided and arbitrary powers on the authorities to transfer the land of some persons and not to touch the land of other H SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R. 698 persons falling under the Scheme and that the provision provided a scope for pick and choose. It was also contended on this score that even the purposes for which the provisions had to be made the Scheme are not in specified and hence the arbitrariness was writ large on the face of it. This challenge was negative by the High Court on the ground that the Legisla- ture had made the provisions for the administration of municipalities and the duties of the municipal committees have been elaborately enumerated under the various heads in the Act itself, and Section 192 (1) ( c) specifically mentioned that the land shall be transferred to the municipal committees for public purposes including a public street. The Act also made provision for a public notice of the purpose for which the Town Planning Scheme was to be prepared . The second ground of attack based on the alleged violatio.1 of Article 14 was that the land could be acquired under the Land Acquisition Act, 1894, the Punjab Town Improvement Act, 1922 and also under Section 192(1)(c) of the Act. If the land is acquired under the former two statutes, the land-owner was entitled to the compensation at the market rate whereas if the land was acquired under the provision of Section D 192(1)(c) of the Act, he was deprived of compensation to the extent of 25 per cent of his holdings. Repelling these contentions, the High Court held that the Town Planning Scheme was to be made for the development of the unbuilt area which was ultimately to the advantage of the land owners · A B c whose land fell within that area and it would appreciate to a great extent the value of the remaining land of the land owners. Further, there was, according to the Court, no acquisition of the land by the municipal com- mittee and the land owners were not divested of the ownership or of possession of the land arid there was also no discrimination between the owners of land whose lands were so transferred to the municipal committee and other land owners. E F As regards the challenge to the provisions of Section 192[1](c) on the ground of their violating Article 19[1](g) read with Article 31 , the High Court held that the area of the respondent-Municipal Committee in that case, viz ., Bhatinda Municipality was earlier within the territorial jurisdic- G tion of Patiala State which merged in PEPSU on 22nd May, 1949 by PEPSU Municipal Ordinance No. 2006 B.K. After the PEPSU merged with the State of punjab in 1956, the provisions of the Act were applied to the whole of the area of the erstwhile PEPSU by Act No.5 of 1959. Thus, according to the High Court, even before the enforcement of the Indian H constitution on 26th January, l950 the provisions of the Punjab Municipal YOGENDRAv. MUNICIPALITY(SAWANT,J.] 699 Act, 1911 were applicable to the territories which fell within the jurisdiction A of the Muncipal Committee, Bhatinda and hence the provisions of Section 192[1J(c) being the "existing Jaw " were saved by Article 31[5) of the Con- stitution and were not hit by Article 31[2] thereof as they stood then. 4. The contention of the appellants/petitioner is that the provision for compulsory transfer of the land to the Municipal Committee for the purpose of the Town Planning Scheme without payment of compensation is ultra vires Articles 19(1) (f) read with Article 31 of the Constitution as the Articles stood then, since the transfer was prior to June 20, 1979 from which date the said Articles stood deleted by the Constitution (Forty Fourth) Amendment Act, 1978. As against this, the contention of the respondent-Municipal Committee and of the State Government is that the section in question provides for a Town Planning Scheme for unbuilt areas. The land is taken for a limited purpose of development and for the benefit of the proprietor whose land is being developed and made legally capable B c of being built upon. The object of the Scheme is not to deprive any land owner of his land but to frame the Town Planning Scheme for his benefit. D There is no divesting of any right or title of the owner of the land nor is the owner deprived of his possessory rights ove r the land. Both the owner- ship and possession of the land remain with the land owner. There is thus no acquisition of the land and hence there is no question of payment of any compensation to the land owner. The right of the land-owner is restricted to use the land only for the purpose of the Scheme and no further. It is, further, contended that the Municipal Committee under the Scheme provides certain facilities to the land-owner by of way of streets, parks etc. and develops the land for and on behalf of the land owner and for the benefit of the better use of the land which remains with him. In fact the land owners are also benefited in monetary terms because the value of the land which remains with them appreciates with the development of the facilities of roads, parks etc. E F 5. In order to appreciate the rival contentions, it is necessary to understand the relevant provisions of the Act. Section 3 (13) (a) of the Act define "s treet" to mean "a ny road, footway squ'!_t:.e, court, alley or passage, G accessible whether permanently or temporarily to the public and whether a thoroughfare or not; and shall include every vacant space notwithstanding that it may be private property and partly or wholly obstructed by any gates, post, chain or other barrier, if house s, shops or other buildings a bout thereon, and if it is used by any person as a means of access to or from any public place or thoroughfare, whether such persons be occupiers of H SUPREME COURT REPORTS 11994] SUPP.1 S.C.R. 700 A 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". Section 3(13)(b) defines Public Street as any street - (i) heretofore levelled, paved, metalled, channelled, sewered, or repaired out of municipal or other public funds, unless before such work was carried out, there was an agreement with the proprietor B that the street should not thereby become a public street, or unless such work was done without the implied or express consent of the proprietor; or (ii) which under the provisions of section 171, is declared by the committee to be, or under any other provision of the Act becomes, a public street." C Section 3 (17) of the Act defines "public place" to mean " a space which is open to the use or enjoyment of the public whether or not private property and whether or not vested in the committee." Sub-section 18 (a) of Section 3 defines "built area" to mean "that portion of a municipality of which the greater part has been developed as D a business er residential area" and sub-section 18 (b) defines "unbuilt area" as "an area within the municipal limits which is declared to be such at a special meeting of the committee by a resolution confirmed by the State Government or which is notified as such by the State Government". E Section 56 (1) (f) and (g), among other things, define "property vested in committee" as follows : "(t) all land or other property transferred to the committee by the Government of acquired by gift, purchase or otherwise for local public purposes; F (g) all public streets, not being land owned by Government and the pavements, stones and other materials thereof, and also trees growing on and erections, materials, implements and things provided for such streets." (Emphasis supplied) G Section 56 (2) then states as follows : " (2) Where any immovable property is transferred otherwise than by the sale by the State Government to a municipal committee for H public purposes it shall be deemed to be a condition of such YOCJl ·. NDR :\1·. l\lliN\Cll' 1 \l IT'l [Si\\.\ ', \N L.l j 10 I transfer. unkss specially proYid ed to the cuntrarv. that should the property be at any time resumed by government. the compensation payable therefore shall, notwithstanding anything t 1J the cnntrary in the Land Acquisition Act, 189.t , in no case exceed the amount if any paid to the GoYernment for the tranJjer , together with the cost or the present Yalue. whicl11:, ·er shall be less. llr any buildings erected or other works executed t1n tht: land b,· tht: municipal committee." B (Emph~1sis ours) Section 169 which deals with tht: pnwcrs of tht: Municipal Committee in connection with the streets, in clauses (t) and (g) thaeof declar•2s as c follows: "(I) subject to the provisions of any rule prescribing the conditions on which property may be acquired by the committee may acquire any land, along with the building thereon, which it deems necessary D for the purpose of any scheme of work undertaken or proj<.:cted in exercise of the powers conferred under the preceding clause. and (g) subject to the provisions of any rule prescribing the conditions on which property vesting in the committee may be transferred, may lease, sell or otherwise dispose of any property acquired by the committee under clause (I); or any land vesting in and used by the committee for a public street and no longer required there for, and in so doing may impose conditions regulating the removal and construction of building upon it and the other uses to which such land may be put : E F Provided that land owned by proprietors other than the Government shall become the absolute propert y of the commillee after it has continuously vested in the committee for use as a public street for a period of twenty-five years; but that the possession of G such land that ce<1ses to be required for use <1s a public street before the expiry of twenty-five years from the time that it became vested in the cornmittee shall be transferred to the proprietor thereof, 011 payment by him of reasonable compens<1tion to the committee for improvements of such land, and subject to such restrictions as the committee may impose on the future use of such H t99~) 7 02 Sl ' PR Ef\ !E COU RT REPORTS [ SUPP. 1 S.C.R. land, and that should the proprietor be unable or unwilling to pay the amount of such compensation the committee may , subject to s uch conditions as it may deem lit sell the land, and shall pay to the owner thc..: procee ds , if any, over and above the amount of such com pen. at ion which shall be paid Into the municipal fund, or may dispose of it in such manner as it may dec..:m fit. " A B (Emphasis supplic..:d) Section 192 then provides for building scheme. Its relevant provisions read as follows : c " 192 , Building sc heme. - (1) The committee may , and if so required by the Deputy Commissioner shall, within six months of the date of such requisition, draw up a building scheme for built area.<. , and a town planning scheme for unbuilt areas, which may among other things provide for the following matters, namely : D (a) the restriction of the erection or re-erection of buildings, or any class of buildings in the whole or any part of the municipality, and of the use to which they may be put : (b) the prescription of a building line un either side or both sides of any street existing or proposed; and E ( c) the amount of land in such unbuilt area which shall be trans- ferred to the co mmittee for public purposes including use as public streets by owners of land either on payment of compensation N otherwise, provided that the total amount so transferred shall not exceed thirty-five per cent, and the amount transferred without payment shall not exceed twenty-five per cent, of any one owner's F land within such unbuilt area." (Emphasis supplied) 6. The contentions advanced on behalf of the respondents that there G is only a transfer of the land from the land-owner to the Municipal Committee and there is no acquisition of the same and that the transferred la nd does not vest in the Municipal Committee and that the possession remains with the land-owner, are contrary both to the factual and legal po ~ iti on . Sec ti on 192 of the Act gives powers to the Municipal Committee H to draw up a building scheme for built area and a Town Planning Scheme 1·. YOGENDRA MUN!Cil'ALITY !SAWANT. J.j 703 A for unbuilt area. We are not here concerned with th e huil<ling scheme for tht.: built an.:a. We arc co n ce rn e <l with the t ow n pbnning sc heme fo r th e unbuilt area. The provis ion s of Section 192( \)(c) envisage that th e Municipal Committ ee pr t.: par cs a T ow n Planning sc hc:m c for tht.: unbuilt an:a. The Sche me m ay , amnng o th t.: r thin gs, pro\· id l'. for th t: extent of Lind in s uch unbuilt area which s hall be tran sk rr t: <l t 11 th e C11 mmittce for "public B purp o~c~ in c ludinR u se as public street" by owners uf lan<l. The trans fer nf ~ndl ; r th e land th e sa id provision is furthn to he e ith er on pa yme nt oi compensati• rn or o th e rw ist.:. This m ea ns that th l'. Municipal Committ ct.: is gi ve n auth1 ·r i lv tu tran sfe r the lan<l fr om th e lan<l -nw na lo itself either by pa y in g cu 111 p . ; n ~ , 1tillr1 or without any compen sa ti on depending uplm ih ; ,~ discrdi on, s in cl'. th e re is no g ui<l e lin e pro vi de <l by th e sai d provision to when compen~ation is or is not to be paid to th e lan<l -o wner. Th erl'. i s, howe ve r, a r est r ic ti on co ntained in th e said provis ion both on th e m ax imum amount of la nd that may be so transferred fr om a land -ow ner as we ll as th e maximum amount of th e land which may be tra nsf erred withou pay- ment of compensation. The provi so says that the total amount of lan <l th at may be tran sfc rre <l fr om any one owner shall not exceed 35 per cen! of hi s land and the land that may be transferred from him wit hout payment , 1f thu ~ compens ,1tion s hall not exceed 25 per ce nt of hi s la nd . It will lie o bvi o us th at, in th e first in stance, if th e land transferred from th e land- owner is less th en 25 per cent of hi s holdin g, th ere is no o bli ga ti on to pay any co mp ensation. Secondly, th ere is on guideline given in the Act as to when the co mp ensation is to be paid or de ni ed to the land -ow ner. The very fact, h oweve r, that th e said prov isi on provid es for co mp ensa ti on - whether discretionary or o bli gatory - depending up on th e arncrnnt of land trans- ferred from th e land ow ner, sh ows th at th e L eg islature was aware of the fact th at by such transfer, th e land- ow ner will ~ l a nd dep ri ve d of hi s ri g ht s and int er es ts in it. Otherwise, eve n th e said provision for p ay me nt of compensation is witho ut any purp ose. Further, there is no provision in th e Act which si10ws th at the possess ion of the land is to rema in with th e land- ow ner eve n a ft er it is transferred to th e co mmittee. On the contrar y, the provi sio n envisages th e transfer of the land for public purposes includ- c D E F in g for u se as public street "by ow ners of th e la nd ". The expression "public purp ose" ha s not been d efi ned in th e Act. H owev er, th e expressions ''public G street" and "public pl ace" h ave been de fin ed a nd we h ave reprodu ce d the <; aid definitions ea rli er. It cannot be de ni ed that th e expression "public purpose" is of a wide import a nd any purp os e of public utilit y, of wd farc of the pub li c and in public in te rest w hi ch t he M uni ei pal Com mitt ee under tht.: la \\ ' C lil c ;it er to, wo uld be co\·cred by th e sa id expressio n. In will includ l' public street s, par ks an<l garden ~, J rc 1ir. ;1gc, bn cs : 111J l 1\ ·e l<1 11 L·~ . H 704 SUPREME COURT REPORTS [1994) SUPP . 1 S.C.R. A public buildings etc. The expression "for public purposes including use as public streets by owners of land" cannot be construed to mean that the land would be transferred to the Municipal Committee only for such public purpose or purposes which can be made use of by the owners of the land from whom the land is transferred. The word "including" only suggests that the public purpose for which the land is transferred may be of relevance B also to the owners of the land whose land is so transferred. It is not necessary that in all cases it should be so. Secondly, the use of the said expression suggests that the purposes concerned cannot be of benefit only and exclusively to the transferor land-owner. If that were so, the expres- sions "public purpose" and"public street" used in the said provision would be ^{erroneous. What} is more, no land could be transferred compulsorily for c such private purpose. On the other hand, the use of the said expressions clearly shows that the purpose for which the land is to be transferred to ·the Municipal Committee is of utility to members of the public in general. The fact that the transferor land-owner is also benefited by such purpose as a member of the public makes no difference to the position in law that D neither he is the exclusive beneficiary of such purpose nor is the purpose meant for his benefit alone. On the other hand, the definitions of expres- sions, "public street" and "public place" show that the public purpose intended to be served by the transfer of the land is and has to be of use and benefit to the general public. E 7. The contention that the expression used in the said provision being "transftrred" and not "acquired" would show that the rights and interests of the land-owner in the land in question are not extinguished and he continues to remain the owner thereof, the transfer being only for a limited purpose, has only to be stated to be rejected. As pointed out above, there is no provision in the Act to suggest that in spite of the land being used for a public purpose, the possession, ownership or occupation, of the transferred land remains with the land-owner and that he can deal with or dispose of the same as he desires. In fact, the provision shows that he can exercise his rights over the land so transferred only as a member of the public and no longer as the owner of the land. His rights viz-a-vis the transferred land are on par with those of the other members of the public. G It is also not correct to say that the purpose is limited. We have been unable to understand the expression "limited" in the present context. is not It suggested that the purpose for which the land is taken is of a limited duration and that the land would be restored to the land-owner after the purpose is over. In fact, even for such use of the land for a limited period, H the land-owners will have to be compensated suitably. F YOGENDRAv . MUNICIPALITY [SAWANT,J.) 705 We may in this connection contrast the provisions of Section 192(1) · A (c) with those of Section 169. The said section gives the Municipal Com- mittee powers in connection with laying and making public streets and constructing tunnels and other works subsidiary thereto. Clause (f) of the said section provides for acquisition of any iand along with the building thereon for that purpose. The proviso to clause (g) of the said section provides that the land so acquired shall become the absolute property of B the Municipal Committee after it has continuously vested in it for use as a public street for a period of 25 years and that if the land so acquired is not needed for use as a public street be(ore the expiry of 25 years from the time that it became vested in the Municipal Committee, it shall be trans- ferred back to the proprietor of the land on payment by him of reasonable C compensation to the Municipal Committee for improvement made on such land and subject to such restrictions as the Municipal Committee may impose on the future use of such land. If the proprietor is unable or unwilling to pay the amount of such compensation, the Municipal Commit- tee is authorised to sell the land subject to such conditions as it may deem fit and has to pay to the owner the proceeds, if any, over and above the D amount of such compensation. Thus, the provisions of Section 169 which give powers to the Municipal Committee for laying public streets show firstly that the Municipal Committee has to acquire the land for the purpose by paying compensation to the land owner. Secondly, if such acquired land continues to be with the Municipal Committee for use as a public street for a period of 25 years or more, it becomes the absolute property of the Municipal Committee in the sense that is no obligation on the Municipal Committee for restoring its possession to the original owner of the land even if the land ceases to be used for the purpose thereafter. However if such land ceases to be required for use as a public street before the expiry of 25 years from the time that it was acquired there is an obligation on the Municipal Committee to transfer the same to its original owner albeit on payment by him of reasonable compensation to the Com- mittee for improvement made on such land and subject also to his using the said land in accordance with the restrictions that the Municipal Com- mittee may impose. If the original land-owner is unable or unwilling to pay E F the amount of compensation, the Municipal Committee is given power to G sell it. However, in that case, it has to pay to the original land-owner the proceeds of such sale, if any, which are over and above such compensation. These provisions of section 169 show that there is a distinct inconsistency between them and the provisions of Section 192(1)(c). Whereas under section 169, the land is to be acquired only for making or laying public streets, under Section 192(1)(c), the land may be "transferred" for any H 706 SUP R EME COURT REPORTS [1 99 4! SUPP. l S.C.R. public purpose including fo r u se as a public street. Further, und er Section A 1(19, the la nd is to be acq uir ed by payme nt of compensation for the whole of it a nd , as point ed o ut ab ove, if within 25 years of such ac qui sition it is not r eq uir ed fo r u se as a public str ee t it is lo be restored to the original la nd -ow ner s ubj ect to hi s agree in g to p ay the compensation for th e im- provement made th ereon a nd accepting the re st ri ctions as m ay be imposed by th e Municipal Com mill ee for its future u se . Wh at is mor e, if he is un a bl e or unwillin g to t ake th e la nd back on th e sa id te rm s, a nd th e Municipal Co mmitt ee se ll s such a la nd Lo o th er s, he is entitled to recei ve th e excess sa le proceeds, if an y. Ho weve r, und er Section 192(1)(c), no compensation is payable to the land-o wner wh en th e la nd "transferred" eve n th o ugh for B u ~e as public street is hc.:low 25 per ce nt of th e total la nd of th e land-owner a nd th e rate at wh i ch the compensation shall be paid when it is above 25 per ce nt , is in th e di sc re ti on of th e Municipal Committee. What is more, when th e la nd is so transferred for u se as public street under Section 192(l)(c), th e la nd re main s for eve r with the Municipal Committee and th ere is no provi sio n for it s re storation to th e land-owner even if it is not required or ceases to be required for u se as public street within 25 yeus oi such transfer. c D S. The co nte nti on that th e exp r ess ion u ~e d und er Sec ti on 192 (l)( c) , is "trans fer red" as aga in ~ L ·· ac quired" and, th erefor e, the land ow ner does not l ose his ri g ht s or owners hip a nd th at th e possess ion continues to be E wi th th e land-nwncr h as al so no merit. In th e absence of any pro vis ion in th e Act which su gge sts that th e land ow ner continues to be th e owner of the land or that the la nd rem ains in h is possession in sp it e of th e transfer ; md that he is entit led to deal with or dispo se d of the sa me as he desire s, it is o bviou s th at th e u se of the word "tran sfe rre d' ' is a e uph e mis m for ''acq ui sition". W f'. h ave al so e mph as ised above th e fac t th at if th e land was F not Lo ve st in th e Municipal Com mittee th ere was no need for th e Legi s- l at ur e to provide for p ay me nt of co mp ensation eve n when the land so "transferred" exceeds 25 per ce nt of the total holding of th e land-owner. We ar;:, therefore, more than sa ti sfied th at when th e la nd is " tr ansferred '' und er Sec ti on 192(l)(c) of th e Act, th e transfer is nothing sho rt of acquis i- tion divesting th e la nd- ow ner of a ll hi s rights as owner of the land. G 9. Th e n ext co nt e nti on is that the transfer of th e land is al so for th e benefit of the transferor la nd- ow ner a nd in fact the balance of the la nd w hi ch rem ai ns with him appreciates in va lu e to an ext e nt w hi ch more than su ffici e ntly com pensates him for th e l oss of th e land. Hen ce th ere is no H n ee d to p ay him separate co mp en sa tion fo r th e exte nt of la nd upto 25 per YOGEN DRA v. MUNIC IP AUTY[SA WA NT, .I .] 707 A cent transfe rr ed to th e Municipal Committ ee. The co nll!nti on s uff ers fr om s eve ral fa ll ac i es. In th e first in stan ce , as the provis ion s of th e sec ti on th em sc h·rs pci nt o ut. the la nd is to he transferred fo r a publi c purp ose ~ tr ee t. including fo r u se as public Th e purp ose of th e transfer it se lf suggests that th e tr ;m sforo r la nd- ow n -r is not ex clu sively tu be benefiled by the public purp ose. He e nj oys th e benefit, if an y, along with th e other me mb ers ~ h e of public. Th ere is no reason why , th erefore, he . ho uld alo ne for tht.: sai d bene fit in terms of hi s land. Seco ndl y, the public purpo se w hich is se rv ed by th e Municipal Committee, assum i ng it in cn: as cs th e va lu e of the B rema ining la m! , als o co ntribut es to the in cr ease in the va lu e of th e la nd of a ll o th er la nd -ow ner s, w hi ch lands a re s imil a rly ben efi teJ by th e sa id public purp ose . Th ere i s, th erefor e, no reason wh y th e land- owne r wh os e land is " tr ansfe rr ed " for th e purpose alone sho uld p ay for the in crease in th e valu e of hi s rema inin g la nd in te rm s of the tran sfe rr ed land. ln fact, wh ereas it c i ~ nnl y I he r ema inin g la nd of the transferor la nd -o wner whi ch is bene fit ed hy such increase in value, if any the whole of th e land in the po ssess ion of th e o th er la nd -ow ners is bene fit ed by th e accre ti on in val u e. Thu s, on bo th accou nt s, th ere is a clear viola ti on of Article 14 of the Co nstitution to m ake D o nly the transferor la nd -ow ner s uff er for th e publ ic purpose. What is furth er, it i :, problema ti c a nd is in th e rea lm of specula ti on as to whether th e appr ec iation of th e va lu e of th e rema inin g property of th e transferor la nd- ow ner will a lw ays be equivalent to or more than the va lu e of th e land tran sfe rr ed to th e Municipal Co mmitt ee, th at th e p ubli c purpose fo r w hi ch the la nd is tak en over contributes to the in crease in the va lu e of th e rema ining propert y. L as tl y, a nd this is ass umin g eq ua ll y impo rt ant, in many cas es the acc re ti on to the value of the rem ai nin g p ro perty m ay merely be on paper and be a poor co n so lation to th e trans fero r land-owner if he cannot or is unable for one reason or th e other to se ll or otherwi se di sp os e E of th e sa id propert y. On the other hand, in such cases, th e accre ti on in va lue ma y prove a burden if th e property tax , wea lth t ax, es ta te duty etc. F are calculated on the basis of th e market va lu e of the propert y. Th e so -called increase in th e va lu e th e property m ay th us prove a li ability to of th ose who cannot dispo se of the ir propert y. Lo oked at from any angle, th e argument that the transferor land-owner is bene fit ed becau se hi s remaining property appr ec ia te s in val ue a nd , th er efo re, he need not be paid separate compensation for th e land which is tran sf e rr ed, is untena bl e in l aw . We G thus find th at th e provi s ion s of Section 1 92 (l)(c) are violative of Article 14 of th e Co nstitution. 10. Th e re li an ce placed on beha lf of th e respo nd e nt on th e dec isi ons of thi s Court in Ajit Sin gh v. State of Punjab and Anr ., A IR (1967) SC 856 H SU PH.EME COURT REPORTS [1994J SUPP. l S.C.R. 708 A and Prakash Amichand Shah v./ State of Gujarat and others, [1986] 1 SCC 581, is obviously misplaced. In Ajit Singh'.1· case (supra), the facts wer e that some land was owned by th e Gram Pancha ya t which was us ed for common purposes. In a 1 co ns o li dation sc hem e of he v illage under the provisions of the East Punjab Ho ldin gs (Co ns olidation and Prevention of Fragmentation) Act, 1948, so me further area was rt : sc rv ed for common purposes after applying cut on all f he ri g ht hold as un pro rata basi s. The appellant contended that as he wa~ a s mall land - hold er holding land within the ceiling limit and some land under hi s personal cultivation had also been taken under the con- so lid ation scheme without paym e nt of compensation as required under seco nd to Article ::'.1-A (l) of the Constitution, the acquisition was illegal and co nli sca tory. The Majority held that under the consolidation scheme, proprietor~ all t lte of bnd were to enjoy benefits derived from use of land for co mmon purpl) SC~ and the Panchayat as such was not to enjoy any ben efit. Thus, the ben e ficiary of the modification of rights was no the State D B c and he nc e, th ere was 110 1 acquisition by the State within the meaning of the sa id provision of th e Cons titution. In Prakash Am i. - Jwnd Shah case (supra), the land was acquired for a t ow n planning scheme under Scheme 53 of the Bombay Town Planning Act , 1954 . Th e Court he ld that the acquisition was no t violative of Article 14 of the Constitution on the ground of deprivation of a more favourable pmccdure under the Land Acquisition Act from the point of view of the 1 pniccdurc sCJfeguart s : rn ci from the point of view of the quantum of co mp ensat ion pay ab : e. Th" Act in quest ion was not bad for not extending to s uch acquisition th e procedure of th e Land Acquisition Act, The Court pointed out that there were two separate provi s ions , one for acquisition of l and by the State Government under the La nd Acquisition Act and the other for acqui~ition for th e purpo se of Town Planning Scheme by the local authorities und er the Bombay Town Planning Act. Th e re wa s no option to th e local authority to r eso rt to one or the other of the alternative methods r esu lting in acquisition. The Court further pointed out that while as regards G th e determination of compensation, it was po ss ible to apply the provisions l1f th e la nd Acquis ition Act, with so me modifications as provided in the sc h edul e to th e Bombay To wn Planning Act, in the case of land acquired either und er Section 11 or 84 of th at Act, in th e case of the lands which were needed for the loc al authority under the town planning scheme which autho ri sed a ll ot me nt of recon st ituted plots to persons from whom original H E r YOGENDRA v. MUN I CI P ALITY I SA WANT , J.] 709 plots were taken, it wa s difficult to apply the pro vi sio ns of the Land · A Acquisition Act. Section 32 and the other fi nancial provisions of that Act provide for determina ti on of the cost of the schem e, the development charges to be levied and contribution to be made by the local authority et c. It was only after that exercise was done that the mon ey was to be pa id to or demanded from the owners of the o ri g in al pl ots depending on the circumstanc es governing each case. It is in that cont ex t that the Act had B also made special provisions under Sections 67 to 71 fo r determining compensation payable to th e owners of original plot s, who did not get the reconstituted plot s. In the circumstances, it could not be sa id that there had been any vi olation of Article 14 . Th e Court also held that the provisions of the act for gi vi ng the va lu e of land on the basis of the va lu e C pr evailing at the date of the declaration of the intention to make a scheme instead of on the date of extinction of interest of the o wn er could not be assailed on the ground of not being a provision fo r payment of compensa- tion as stated in Article 31 (2 ) of the Constitution. Th e Act was also not discriminatory merely on the ground of de ni al of the solatium of 15 per cent (which is now increased to 30 per cent). The proceedin gs relating to D the scheme were not like acquisition proceedin gs under the Land Acquisi- tion Act. Th e Court also held that it could not be sa id that as a rule the State should alw ays p ay solatium. The inter es ts of the public are equa ll y important. E It would thus be a ppar ent fr om the facts of this case that the acquisition was not without payment of compensa ti on and that the amount of compensation was to be determined a ft er ascertaining the cost of pr epari ng the scheme, the bene fit to be deri ve d by the proprietor of the la nd under the scheme et c. S in ce the acquisition under the Town Planning Scheme was for a partic ul ar purpose, the Ac t could separately pro v id e for payment of compensation for such acquisition and that it was not necessary F that the payment of compensa ti on should have been under the Land Acquisition Ac t. This was, therefor e, not a case acquisition of land without p ay ment of compensa ti on. It is also interesting in this co nn ec ti on to remember that under the Bomb ay Town pl anning Act, 1954 there is an elaborate procedure prescribed fo r deter mi na ti on of the compensa ti on to G be paid to those land- holders whose land is acquired fo r the purp ose of the scheme, for allotment of a lt ernative plots to them, fo r levy of bette r- ment charges on a ll the land holders whose lands are bene fit ed by the scheme et c. Th ere is no such provision under the present Ac t. On the contrary, under the provisions of Sect io n 192 (l)(c) , the Muni ci pal Co m- H SUPREM E COURT REPORTS [1994] SUPP. 1 S.C.R. 710 mittee which prepares th e Town Planning Scheme is given a naked power of acquiring the land without payment of compensation if the land acquired is upto 25 per cent of the holding of th e land-owner and of payment of compensation according to the discretion of the Municipal Committee without laying down the principles for payment of compensation if the land acquired is ab o ve 25 per ce nt of the holding. A B 11. In the present case the so-called transfer which as held above was nothing but acquisition, was effected prior to 20. 6.1979. Being without payment of compensation, it was hit by Article 31 (2) of th e Constitution as it stood prior to 20.6.1976. The Article provided that no property shall C be compulsorily acquired or re qui sitioned save for a public purpose and save by authority of a law whi ch provided for acquisition or requisitioning of the property for an amount which may be fixed by such law or which may be determined in accordance with such principles and given in such manner as may be specified in such law. As has been discussed above, D Section 192(1) ( c) of the Act provides for acquisition of the land without providing for payment of compensation upto 25 per ce nt of the land of the la nd-own er and al so without providing for either th e amount or the prin- cipl es of fixation of such amount for the remaining 10 per cent of the land. Section 192 (l)(c), therefore, cl e arly violated the provisions of th e said Article. E However, sub-clause (5) of Article 31 of the Constitution saves the . provi sions of any existing law from the operation of sub-clause (2) there of. The expression "existing Law " has be en defined by sub-clause (10) of Article 366 to mean any law , ordinance, order, bye-law, rule or regulation passed or made before the commencement of the Constitution by any f Legislature, authority or per so n h av ing pow er to make such law , ordinance, order, bye-law, rule or regulation. Th e la ws which were in existence prior to the commencement of th e Constitution were continued by virtue of the provisions of Article 372 of the Constitution subject to such adaptations and modifications as may be necessary or expedient to be mad e by the G Pr es ident. Explanation (1) to Article 372 clarifies that the expres sion " law in forc e" would include a law passed or mad e by th e le gi slature or other competent authority in the territory of India be for e th e co mm en ce ment of the Constitution notwith standing th at it or parts of it ma y not be th en in operation either at all or in particular areas. Since the Punjab Municipal H Act, 19 11 pa ssed by th e th en l eg islature w as th e e xi s tin g law within the YOGF.NDRA v. MUNICIPALITY [SA W ANT,.1.J 71 1 meaning of Article 366(10) and was a ls o the "law in force" before the A commencement of the Constitution, the provi,,;ions thereof would not vio- late Article 31 (2) of the Constitution. Hence, the attack against the provisions of Section 192 (1) (c) of the Punjab Muni ci pal Act, 19 11 and against the corresponding provisions of Section 203 (l) ( c) of the Har ya na Municipal Act, 1973 on the ground of their violation of Article 19(1) (f) read with Article 31 as they stood th en, must fail. It is no disputed that the Haryana State was formed w.e.f. 1.11.1966 with part of the territories which earlier formed part of the State of Punjab and which were governed by the Punjab Municipal Act, 1 99 l. B 12. We may now state in brief the facts in each case before us. C CA.3656/ 1987 & WP. 569 of 198 7 The appellant and the petitioner-Society (hereinafter referred to as the 'petitioner') is an owner in possession of the land measuring 2420 sq. D yards situated within the revenue limits of village Bahar. The petitioner had constructed pucca foundations around the disputed land since long and wanted to raise boundary walls over those foundation s. The respondent- Rohtak Municipal Committee, Haryana, however, restrained the petitioner from doing so and Ctlso intended to dispossess the petitioner from the land by force without following the due process of law. The petitioner filed a suit before the sub-Judge, Rohtak claiming that the Municipal Committee had no right, title or interest over the land and for restraining it from interfering with the peaceful possession of the petitioner of the land. The Municipal Committee resisted the suit on the ground that the suit property being situated in the municipal area of the Rohtak city, was not agricultural land and that Town Planning Scheme No. 9 (Supplementary) had been framed on 31st May, 1977 in the said area and the land was required for park and a park had actually been laid out on the land and was bounded by barbed wires. Thus, according to the Municipal Committee, the land was reserved for the benefit of the public and for the welfare and comfort E F of the inhabitants of the locality. The suit was dismissed and the firs appeal G filed by the petitioner was also dismissed by the Additional District Judge, Rohtak. The second appeal was rej ec t by the High Court in limine. The petitioner has, therefore, filed this appeal and bas also filed the writ peti ti on separately challenging the vires of Section 203 (l)(c) of the Har ya na Municipal Act, 1973. The writ petition was admitted and is on board along with the pre sent appeal. We are dismi ss ing the writ petition, H 712 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R. A since it is not maintainable. The appellant has already filed the present appeal and has challenged the decision of the High Court, which decision rests on the validity ot Section 203(1)(c) of the Haryana Municipal Act of 1973 . CA. 2535 of 1981 B The appellant is an exclusive owner of a plot measuring 300 sq. yards comprised in Khasra No. 6165/2049 situated at Bhatinda. The respondent- Bhatinda Municipal Committee framed a Town Planning Scheme known as Town Planning Scheme of Area No. 2 Part III under Section 192(1) of the Punjab Municipal Act, 1911 and the Government sanctioned the same C on 1/2nd March, 1977. By virtue of the said scheme, 66 per cent of the land of the appellant was transferred to the Municipal Committee for park and road. The appellant filed a writ petition before the High Court challenging the scheme and vires of Section 192 (l)(c) of the Act on the ground of the violation of Articles 19 and 31 of the Constitution. The High Court by a D decision dated 23.3 . 1980 dismissed the petition both on the ground of delay as well as on the ground that the issue was concluded in Om Prakash v. Municipality Bhatinda and Another, AIR (1980) P. & H 254 . CA. NOS. 814-816 OF 1986 E In these appeals the appellants are the owners of lands parts of which were transferred under the Town Planning Scheme to the respondcnt- Bhatinda Municipal Committee. The Scheme was prepared by the Municipal Committee and sanctioned by the Government on 11.5 . 1976. The lands are transferred under the Scheme variously for streets, green parks, pavements parking and open space etc. under Section 192(1)(c) of the Act. F 13. As held above, the provisions of Section 192 (l)(c) of the Punjab Municipal Act, 1911 and of Section 203 (l}(c) of the Haryana Municipal Act, 1973 are violative of Article 14 of the Constitution. Hence the acquisi- G lions of the appellants' land under the respective provisions were bad in law. The question still remains as to what relief the appellants can be granted. It is now well-settled by the decisions of this Court beginning with J.C. Golak Nath & Ors. v. State of Punjab & Anr. , (1967] 2 SCR 762 that the Court can mould the relief to meet the exigencies of the circumstances and also make the law down by it prospective in operation. We are informed that till date the Municipal Committees in both J>unjab and H YOGENDRA r. MUNICIPALITY I SA WANT. J.] 713 Haryana States have similarly acquired lands for their respective town A planning schemes and in many cases the schemes have also been com- pleted . It is only some of the land-owners who had approached the courts and the decisions of the courts have become final in many of those cases. It would not, therefore, be in the public interest to unsetlle the settled state of affairs. It would create total chaos and an unmanageable situation for the Municipal Commitlees if the said prn\'isions of the respective statutes and the land acquisitions mad e thereunder are declared void with retrospective effect. We, therefore, propose to declare that the concerned provisions of the two enactments would be void from the date of this decision. B c 14. This judgment will not prevent the respondent-State Govern- ments from suitably amending Section 192(1)(c) of the Punjab Municipal Act and Section 203 (l)(c) of the Haryana Municipal Act as the case may be, and making appropriate provisions in the statutes on the lines of the enactments prevailing in other States for making the town planning scheme such as the Bombay Town Planning Act, 1954 . . D 15. Hence, while we hold that the provisions of Section 192( l )( c) of the Punjab Municipal Act, 1911 and of Section 203 (l)(c) of the Haryana Municipal Act , 1973 being violative of Article 14 of the Constitution are void with effect from the date of this judgment and set aside the impugned decision of the High Court, we for the reasons already stated, in the peculiar facts of these cases, dismiss the appeals and the writ petition. E In the facts and circumstances, however, we direct that the respon- dent-Municipal Committee in C.A. No. 818 of 1986 shall ma ke an cx-grat ia payment of Rs. 30,000 to the appellants therein and the respondent·- Municipal Committees in each of the C.A. Nos. 814-16 of 1986, 2535 of 1981 and C.A. 3656of 1987 shall make an cx-gratia payment of Rs. 5,000, to the appellants in the respective appeals. F A.G. Appeal and W. P. dismissed.