Full Judgment Text
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PETITIONER:
PRAKASH AMICHAND SHAH
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT24/07/1981
BENCH:
GUPTA, A.C.
BENCH:
GUPTA, A.C.
SEN, A.P. (J)
CITATION:
1981 AIR 1597 1982 SCR (1) 81
1981 SCC (3) 508 1981 SCALE (3)1084
CITATOR INFO :
RF 1986 SC 468 (5)
ACT:
Bombay Town Planning Act, 1954-Sections 32, 33, 34, 65
and 69-Scope of. Words and phrases-"injurious affection"-
Meaning of.
HEADNOTE:
The Bombay Town Planning Act, 1954 (which was made
applicable to the State of Gujarat) provides for the
compulsory acquisition of land and payment of compensation
for the land so acquired for the development or re-
development or improvement of the entire area within the
jurisdiction of a local authority such as a municipal
corporation or a municipality. The Town Planning Scheme
prepared under the Act may make provision for laying out new
streets or roads, allotment or reservation of land for
roads, open spaces and such other matters not inconsistent
with the objects of the Act. Before proceeding to acquire
any land for town planning purposes, a local authority, by
resolution, must declare its intention to make a town
planning scheme and publish it in the manner prescribed. The
draft scheme may contain proposals such as to form a re-
constituted plot by the alteration of the boundaries of an
original plot, to form a reconstituted plot by the transfer,
wholly or partly, of the adjoining land, to allot a plot to
any owner dispossessed of a land in furtherance of the
scheme. Any person affected by the scheme may communicate to
the local authority concerned any objection relating to such
scheme. The scheme is then forwarded to the State Government
for the requisite sanction.
The scheme of the Act envisages the appointment of a
Town Planning Officer and constitution of a Board of Appeal.
It is the duty of the Town Planning Officer to draw up a
final scheme in accordance with the draft scheme. When the
final scheme comes into force all lands required by the
local authority shall vest absolutely in that authority free
from all encumbrances and all rights in the original plots
which have been reconstituted shall determine and the
reconstituted plots shall become subject to the rights
settled by the Town Planning Officer.
Section 64 (1) enumerates the sums payable or spent and
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the expenses incurred by the local authority which are to be
included in the costs of a town planning scheme.
Under section 65 increment means the amount by which at
the date of the declaration of intention to make a scheme
the market value of a final plot calculated on the basis as
if the improvement contemplated in the scheme had stood
completed on that date. Provision is made in section 67 to
make adjust-
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ment between the rights to compensation for loss of land
suffered by the owner and the liability to make contribution
to the finance of the scheme. Compensation payable to any
owner for loss of lands has to be determined on the basis of
the market value of the land at the date on which the
declaration of intention to make a scheme was made. Section
69 contemplates that the owner of any property or right
which is injuriously affected by the making of a town
planning scheme shall be entitled to obtain compensation
from the local authority or from any person bona fide or
partly from such person as the Town Planning Officer may in
each case determine.
Section 32 enumerates duties of the Town Planning
Officer and section 33 provides that except in matters
arising out of clauses (v), (vi), (vii), (ix), (x) and
(xiii) of section 32 (1) every decision of the Town Planning
Officer shall be final and conclusive and binding on all
persons. An appeal from the decision of the Town Planning
Officer under the six clauses mentioned in section 33 lies
to the Board of Appeal.
The Surat Municipal Corporation declared its intention
to make a town planning scheme under section 22 of the
Bombay Town Planning Act, 1954. The draft scheme published
included an area of 1.37 lac square meters of which the
appellant was the lessee.
Dissatisfied with the compensation awarded to him by
the Town Planning Officer the apportionment of the
compensation between the lessor and lessee and the propriety
of reserving such a large area of land for the scheme the
appellant preferred an appeal under section 34 read with
section 32 (1) of the Act to the Board of Appeal. The Board
rejected the appeal as being not maintainable on the ground
that the Act did not provide an appeal from a decision of
the Town Planning Officer on matters dealt with by him in
the impugned order.
Agreeing with the Board of Appeal the High Court
dismissed the appellant’s writ petition.
In the appeal to this court it was contended on behalf
of the appellant that the Town Planning Officer’s decision
was appealable under clause (viii) or clause (xiii) of
section 32(1) because he has a duty to calculate the
increment to accrue in respect of each plot included in the
final scheme in accordance with the provision of section 65.
Dismissing the appeal,
^
HELD: The High Court was right in holding that the
decision of the Town Planning Officer determining the amount
of compensation in the appellant’s case was not appealable.
[96 F]
The decision of the Town Planning Officer is final and
conclusive in all matters referred to in the various clauses
of section 32 (1) except those mentioned in clauses (v),
(vii), (viii), (ix), (x) and (xiii). [94 E]
The increment referred to in section 65 is the
difference in the market value of the same final plot with
the improvements and without the improvements on
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the date of the declaration of intention to make a scheme.
The value of the original plot does not arise for
consideration under clause (viii). Form B referred to in
clause (v) of rule 17 of the Bombay Town Planning Rules,
1955 makes it clear that the increment is the difference in
value of the same final plot in its developed and
undeveloped condition. This form keeps the valuation of the
original plot distinct from that of the final plot. The
appellant’s case cannot fall under clause (viii) of section
32. [94 G-99 B]
What is contemplated by section 69 is that the property
or right which is injuriously affected by the making of a
town planning scheme is a property or right other than that
acquired for the purposes of the scheme. The property or
right affected remains with the owner who is entitled to
compensation for such injurious affection. When under the
Act a plot of land is taken for the purposes of a town
planning scheme it cannot be said that land itself is
injuriously affected. [95 C-E]
There is no compelling reason for restructuring clause
(xiii) suggested by the appellant. Taking acquisition of
land to mean "injurious affection" of the land acquired
would be inconsistent with the entire scheme of the Act.
[95 F]
In determining the amount of compensation awarded for
land acquired under the Land Acquisition Act, that Act
requires the Court to take into consideration the damage
sustained by the "person interested" by reason of the
acquisition injuriously affecting his other property." A
"person interested" means a person claiming an interest in
compensation to be made on account of the acquisition of
land under the Land Acquisition Act and the damage is for
injurious affection of some property other than the land
acquired. There is nothing in the Act to suggest that the
generally accepted meaning of the expressions "injurious
affection" used in the Land Acquisition Act should be
construed differently in this Act. [95 G-96 B]
The owner of an original plot who is not provided with
a plot in the final scheme gets his right to compensation
from section 71. The principle for determining the
compensation is the same whether an owner of land is given a
reconstituted plot or not. Compensation is payable on the
basis of the market value of the plot at the date of
declaration of the intention to make a scheme. In the
appellant’s case it would be the value of the original plot
and not the final plot. In determining the difference under
section 32 (1) (iii) the Town Planning Officer has to find
out the market value of each of the original plots at the
date of the declaration of intention to make a scheme. The
Act contains necessary provisions for estimating the
compensation payable to an owner of land who has not been
given a reconstituted plot. [96 C-E]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1224 of
1977.
Appeal by special leave from the judgment and order
dated the 3rd September, 1976 of the Gujarat High Court in
Special Civil Appln. No. 1501 of 1974
84
F.S. Nariman, Dr. Y.S. Chitale, K.S. Nanavati, C.R.
Gandhi, P.H. Parekh and Miss Vineeta Caprihan for the
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Appellant.
Soli J. Sorabjee, G.N. Desai and M.N. Shroff for
Respondent No. 1
G.N. Desai, Prashant G. Desai and S.C. Patel for
Respondent No. 2
S.K. Dholakia and R.C. Bhatia for Intervener-Surat
Municipality.
The Judgment of the Court was delivered by
GUPTA J. On June 26, 1965 the Surat Municipal
Corporation, then called Surat Borough Municipality,
declared its intention to make a town planning scheme under
section 22 of the Bombay Town Planning Act, 1954
(hereinafter referred as the Act). This was Town Planning
Scheme Surat No. 8 (Umarwada). On July 4, 1967 a draft
scheme was published which included among other lands an
area admeasuring 1,37,961 sq. meters of which appellant as
Karta of a Hindu undivided family was the lessee. On May 10,
1968 Government of Gujarat granted sanction to the draft
scheme. Before the Town Planning Officer the appellant
claimed compensation for deprivation of his right in the
land at Rs. 50 per sq. yd. By his order made on November 4,
1971 the Town Planning Officer awarded compensation to the
appellant at the rate of Rs. 2.40 p. per sq. mt.; the total
compensation awarded was Rs. 3,31,455. Not satisfied with
the decision of the Town Planning Officer the appellant
preferred an appeal. Section 34 read with section 32(1) of
the Act provides an appeal from the decision of the Town
Planning Officer on certain specified matters to a Board of
Appeal. Before the Board of Appeal the appellant reduced his
claim to Rs. 9.50 p. per sq. mt. The appellant’s grievance
was that the compensation awarded was inadequate and further
that the apportionment of compensation between the lessor
and the lessee was not proper. He also questioned the
propriety of reserving such a large area of land for the
scheme. The Board of Appeal held that the appeal was not
maintainable as the Act did not provide an appeal from a
decision of the Town Planning Officer on matters dealt with
by him in his order dated November 4, 1971. The appellant
then challenged the order of the Board of Appeal before the
Gujarat High Court by filing a writ petition in which
certain provisions of the Act were also challenged as
unconstitutional and it was claimed
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that the town planning scheme was consequently invalid. The
Gujarat High Court dismissed the writ petition agreeing with
the Board of Appeal that the appeal was incompetent. The
constitutional questions raised in the writ petition could
not be decided as Emergency was then in force in the country
and rights conferred by Articles 14,19 and 31 of the
Constitution on which the appellant’s contentions were based
remained suspended at the time. The High Court also relied
on the decision of this Court in State of Gujarat v. Shri
Shantilal Mangaldas which had upheld the validity of the
Act.
The appeal before us is by special leave. Mr. Nariman
for the appellant submitted that in case we held that the
appeal preferred by his client before the Board of Appeal
was maintainable he would not press the grounds questioning
the constitutional validity of the Act at this stage and the
matter should then go back to the Board of Appeal for a
decision on the adequacy of the Compensation; if however we
found that the Board of Appeal was right in holding that the
appeal was not maintainable, he would then urge the grounds
challenging the validity of the Act.
The question is whether the order of the Town Planning
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Officer determining the amount of compensation payable to
the appellant falls within any of the appealable clauses of
section 32(1). To be able to answer the question it will be
necessary to examine the various clauses of section 32(1)
and also certain other provisions of the Act. The scheme of
the Act has been analysed by this Court in State of Gujarat
v. Shantilal Mangaldas (supra) and earlier in Maneklal
Chhottalal and others v. M.G. Makwana and others; we will
not attempt another comprehensive survey of all the
provisions of the Act but refer to those of them which have
some bearing on the question that falls to be decided. Mr.
Nariman drew our notice to the decision of this Court in
State of Karnataka v. Shri Ranganatha Reddy where Untwalia,
J, speaking for the court said at page 652 of the report
that in Rustom Cavasjee Cooper v. Union of India, this Court
apparently seeking to explain Shantilal’s case had "in
substance" overruled the decision. Even if Shantilal’s case
was
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overruled, that was on another point and the analysis of the
scheme of the Act made in Shantilal cannot be questioned.
The long title of the Act states that it is an "Act to
consolidate and amend the law for the making and execution
of town planning schemes". The Act has been made applicable
to the State of Gujarat. It is an Act providing for
compulsory acquisition of land and payment of compensation
for the land taken. Some of the terms and expressions
defined in section 2 of the Act are relevant. Section 2 (2)
defines "development Plan" as meaning a plan for the
development or redevelopment or improvement of the entire
area within the jurisdiction of a local authority prepared
under section 3. Section 3 requires every local authority to
carry out a survey of the area within its jurisdiction and
prepare and publish a development plan and submit it to the
State Government for sanction. Sub-section (4) of section 2
defines local authority as a municipal corporation
constituted under the Bombay Provincial Municipal
Corporation Act, 1949 or a municipality constituted or
deemed to be constituted under the Gujarat Municipalities
Act, 1973. Section 2 (9) defines "reconstituted plot" as a
plot which is in any way altered by the making of a town
planning scheme. Chapter III of the Act provides for the
making of town planning schemes. Sub-section (2) of section
18 which occurs in this chapter states that a town planning
scheme may make provisions for any of the matters specified
in clauses (a) to (k) of the sub-section. These matters
include laying out of land, reclamation of unhealthy areas,
laying out new streets of roads, construction and removal of
buildings, bridges and other structures, providing for
drainage, lighting and water supply, allotment or
reservation of land for roads, open spaces, schools, markets
and public purposes of all kinds. Clause (1) says that apart
from the matters specified, the town planning scheme may
provide for "such other matter not inconsistent with the
objects of this Act as may be prescribed".
Chapter IV which contains section 21 to section 30
bears the heading "Declaration of Intention to Make a Scheme
and Making of a Draft Scheme". Under section 22 a local
authority may by resolution declare its intention to make a
town planning scheme and is required to publish the scheme
in the prescribed manner and despatch a copy thereof to the
State Government. Section 23 (1) provides that following the
declaration of intention to make a scheme, the local
authority shall make a draft scheme for the area
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in respect of which the declaration has been made and
publish it in the prescribed manner. Section 25 mentions the
particulars that a draft scheme shall contain; they include
among other things, -the area, ownership and tenure of each
original plot; the extent to which it is proposed to alter
the boundaries of original plots; and an estimate of the
nett cost of the scheme to be borne by the local authority.
Sub-section (1) of section 26 says that in the draft scheme
the size and shape of every reconstituted plot shall be
determined; as far as possible, to render it suitable for
building purposes and where the plot is already built upon,
to ensure that the building complies with the provisions of
the scheme as regards open spaces. For the purpose of sub-
section (1) the draft scheme may contain proposals which are
enumerated in clauses (a) to (e) of sub-section (2) of the
section. We may here refer to clauses (a), (b) and (d):
"(a) to form a reconstituted plot by the alteration of
the boundaries of an original plot;
(b) to form a reconstituted plot by the transfer
wholly or partly of the adjoining lands;
(c) ... ... ...
(d) to allot a plot to any owner dispossessed of land
in furtherance of the scheme.
(e) ... ... ...
Under section 27, within one month from the date of
publication of the draft scheme, any person affected by such
scheme may communicate in writing to the local authority any
objection relating to such scheme which the local authority
has to consider. Section 28 (1) requires the local authority
to submit the draft scheme together with the objections to
the State Government and at the same time apply for its
sanction. Under sub-section (2) the State Government may
within six months from the date of the submission of the
draft scheme either sanction such scheme with or without
modifications and subject to such conditions as it may think
fit to impose or refuse to give sanction.
Chapter V which includes section 31 to section 43
provides for the appointment of the Town Planning Officer
and constitution of the Board of Appeal. Within one month
from the date on which the sanction of the State Government
to the draft scheme is
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published, the State Government is required under section 31
(1) to appoint a Town Planning Officer. The duties of the
Town Planning Officer are enumerated in section 32 (1). The
provisions of sections 32, 33 and 34 have a direct bearing
on the question of appealability of the Town Planning
Officer’s decision, but we think it would be more helpful
for appreciating the contentions raised on behalf of the
appellant if we referred to certain other provisions of the
Act before turning to the aforesaid section in Chapter V. We
need only mention here that drawing up the final scheme in
accordance with the draft scheme is one of the duties of the
Town Planning Officer who is required to forward the final
scheme to the State Government for sanction. In Chapter VI
section 53 is the only relevant provision. Section 53 lays
down:
"On the day on which the final scheme comes into
force:-
(a) all lands required by the local authority shall,
unless it is otherwise determined in such scheme,
vest absolutely in the local authority free from
all encumbrances;
(b) all rights in the original plots which have been
reconstituted shall determine and the
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reconstituted plots shall become subject to the
rights settled by the Town Planning Officer".
Chapter VIII deals with "Finance". It contains, inter alia,
provisions specifying the principles on which compensation
for the land taken is to be determined. This chapter
includes section 64 to section 78. Section 64 (1) enumerates
in clauses (a) to (f) the sums payable or spent and the
expenses incurred by the local authority which are to be
included in the costs of a town planning scheme. Clause (d)
mentions the sums payable as compensation for land reserved
or designated for any public purpose or purposes of the
local authority. Clause (f) of section 64 (1) reads as
follows:
"any amount by which the total of the values of
the original plots exceeds the total of the values of
the plots included in the final scheme, each of such
plots being estimated at its market value at the date
of the declaration of intention to make a scheme with
all the buildings and works thereon at that date and
without references to improvements contemplated in the
scheme other than improvements due to the alteration of
its boundaries."
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Sub-section (2) of section 64 provides:
"if in any case the total of the values of the
plots included in the final scheme exceeds the total of
the values of the original plots, each of such plots
being estimated in the manner provided in clause (f) of
sub-section (1), then the amount of such excess shall
be deducted in arriving at the costs of the scheme as
defined in sub-section (1)."
Section 65 explains the meaning of increment for the
purposes of the Act as follows:
"For the purposes of this Act the increments shall
be deemed to be the amount by which at the date of the
declaration of intention to make a scheme the market
value of a plot included in the final scheme estimated
on the assumption that the scheme has been completed
would exceed at the same date the market value of the
same plot estimated without reference to improvements
contemplated in the scheme:
Provided that in estimating such values the value
of buildings or other works erected or in the course of
erection on such plot shall not be taken into
consideration."
Section 66 (1) states that the costs of the scheme shall be
met wholly or in part by a contribution to be levied by the
local authority on each plot in the final scheme calculated
in proportion to the increment which is estimated to accrue
in respect of such plot by the Town Planning Officer. Under
sub-section (2) of section 66 the "owner of each plot
included in the final scheme shall be primarily liable for
the payment of the contribution leviable in respect of such
plot". Under section 67 the amount by which the total value
of the plots in the final scheme with all the buildings and
works thereon allotted to a person falls short of or exceeds
the total value of the original plots with all the buildings
and works thereon of such person shall be deducted from or
added to, as the case may be, the contributions leviable
from such person, each of such plots being estimated at its
market value at the date of the declaration of intention to
make a scheme without reference to improvements contemplated
in the scheme other than improvements due to the alteration
of its boundaries. As Shah J., speaking for the Court in
State of Gujarat v. Shantilal Mangaldas and others observed:
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"(Section 67) is intended to make adjustments between the
right to compensation for loss of
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land suffered by the owner, and the liability to make
contribution to the finances of the scheme". Section 69
deals with the compensation payable in respect of any
property or right which is injuriously affected by the
making of a town planning scheme. The section says:
"The owner of any property or right which is
injuriously affected by the making of a town planning
scheme shall, if he makes a claim before the Town
Planning Officer within the prescribed time, be
entitled to obtain compensation in respect thereof from
the local authority or from any person benefited or
partly from the local authority and partly from such
person as the Town Planning Officer may in each case
determine.
Provided that the value of such property or right
shall be held to be its market value at the date of the
declaration of intention to make a scheme or the date
of a notification under sub-section (1) of section 24
without reference to improvements contemplated in the
scheme".
Section 71 deals with the case of an owner of land who is
not given a plot in the final scheme and also provides for a
case where the amount payable to an owner exceeds the amount
due from him. Section 71 is as follows:
"If the owner of an original plot is not provided
with a plot in the final scheme or if the contribution
to be levied from him under section 66 is less than the
total amount to be deducted therefrom under any of the
provisions of this Act, the net amount of his loss
shall be payable to him by the local authority in cash
or in such other way as may be agreed upon by the
parties".
The appellant in the present case was not provided with a
plot in the final scheme. Section 87 in Chapter IX empowers
the State Government to make rules consistent with the
provisions of the Act to provide for all matters not
specifically indicated therein.
The effect of the final scheme coming into force has
been summarized by Shah J., in Shantilal’s case; we may
quote here the following extract from page 349 of the
report:
"On the coming into force of the scheme all lands
which are required by the local authority, unless
otherwise
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determined in the scheme, by the operation of s. 53 (a)
vest absolutely therein free from all encumbrances. The
result is that there is a complete shuffling up of
plots of land, roads, means of communication, and
rearrangement thereof. The original plots are re-
constituted, their shapes are altered, portions out of
plots are separated, lands belonging to two or more
owners are combined into a single plot, new roads are
laid out, old roads are diverted or closed up, and
lands originally belonging to private owners are used
for public purposes i.e. for providing open spaces,
green belts dairies etc. In this process the whole or
parts of a land of one person, may go to make a
reconstituted plot, and the plot so reconstructed may
be allotted to another person and the lands needed for
public purposes may be earmarked for those purposes.
The re-arrangement of titles in the various plots
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and reservation of lands for public purposes require
financial adjustments to be made. The owner who is
deprived of his land has to be compensated, and the
owner who obtains a re-constituted plot in surroundings
which are conducive to better sanitary living
conditions has to contribute towards the expenses of
the scheme. This is because on the making of a town
planning scheme the value of the plot rises and a part
of the benefit which arises out of the unearned rise in
prices is directed to be contributed towards financing
of the scheme which enables the residents in that area
to more amenities, better facilities and healthier
living conditions".
Under the Act the compensation payable to an owner for
loss of land has to be determined on the basis of the market
value of the land at the date on which the declaration of
intention to make a scheme was made. On the question whether
the Act specifies a principle of compensation, it is
observed in Shantilal’s case at page 357 of the report:
"It is true that under the Act the market value of
the land at the date of declaration of intention to
make a scheme determines the amount to be adjusted, and
that is the guiding rule in respect of all lands
covered by the scheme. The High Court was, in our
judgment, right in holding that enactment of a rule
determining payment or adjustment of price of land of
which the owner was deprived by the
92
scheme estimated on the market value on the date of
declaration of the intention to make a scheme amounted
to specification of a principle of compensation within
the meaning of Art, 31 (2). 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 s.4 (1) of that Act. That is a
specification of principle. Compensation determined on
the basis of market value prevailing on a date anterior
to the date of extinction of interest is still
determined on a principle specified. Whether an owner
of land is given a reconstituted plot or not, the rule
for determining what is to be given as recompense
remains the same. It is a principle applicable to all
cases in which by virtue of the operation of the Town
Planning Act a person is deprived of his land whether
in whole or in part".
We may now turn to sections 32, 33 and 34 occurring in
chapter V. It may be recalled that the appellant’s land was
taken for purposes of the scheme but he was not given a
reconstituted plot. Section 32 (1) which enumerates the
duties of the Town Planning Officer is set out below:
"32 (1) In accordance with the prescribed
procedure the Town Planning Officer shall
(i) after notice given by him in the prescribed
manner, define and demarcate the areas allotted
to, or reserved, for a public purpose or purpose
of the local authority and the reconstituted
plots;
(ii) after notice given by him in the prescribed
manner, determine, in the case in which a
reconstituted plot is to be allotted to persons in
ownership in common, the shares of such persons;
(iii)fix the difference between the total of values of
the original plots and the total of the values of
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the plots included in the final scheme, in
accordance with the provisions contained in clause
(f) of sub section (1) of section 64;
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(iv) determine whether the areas used, allotted or
reserved for a public purpose of the local
authority are beneficial wholly or partly to the
owners or residents within the area of the scheme;
(v) estimate the portion of the sums payable as
compensation on each plot used, allotted or
reserved for a public purpose or purpose of the
local authority which is beneficial partly to the
owners or residents within the area of the scheme
and partly to the general public, which shall be
included in the costs of the scheme;
(vi) calculate the contribution to be levied on each
plot used, allotted or reserved for a public
purpose or purpose of the local authority which is
beneficial partly to the owners or residents
within the area of the scheme and partly to the
general public;
(vii)determine the amount of exemption, if any, from
the payment of the contribution that may be
granted in respect of plots exclusively occupied
for the religious or charitable purposes;
(viii)estimate the increment to accrue in respect of
each plot included in the final scheme in
accordance with the provisions contained in
section 65;
(ix) calculate the proportion in which the increment of
the plots included in the final scheme shall be
liable to contribution to the costs of the scheme
in accordance with the provisions contained in
section 66;
(x) calculate the contribution to be levied on each
plot included in the final scheme;
(xi) determine the amount to be deducted from, or added
to, as the case may be, the contribution leviable
from a person in accordance with the provisions
contained in section 67;
(xii)provide for the total or partial transfer of any
right in an original plot to a reconstituted plot
or provide for the extinction of any right in an
original plot in accordance with the provisions
contained in section 68;
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(xiii)estimate in reference to claims made before him,
after the notice given by him in the prescribed
manner, the compensation to be paid to the owner
of any property or right injuriously affected by
the making of a town planning scheme in accordance
with the provisions contained in section 69;
(xiv)draw in the prescribed form the final scheme in
accordance with the draft scheme:"
There is a proviso to section 32 (1) which is not relevant
for the purpose of this appeal.
Section 33 says:
"Except in matters arising out of clauses (v),
(vi), (vii), (ix), (x) and (xiii) of sub-section (1) of
section 32, every decision of the Town Planning Officer
shall be final and conclusive and binding on all
persons."
Section 34 provides an appeal to a Board of Appeal from any
decision of the Town Planning Officer under clauses (v),
(vi) (viii), (ix), (x) and (xiii). Thus the decision of the
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Town Planning Officer is final and conclusive in all matters
referred to in the various clauses of section 32 (1) except
those mentioned in (v), (vi), (viii), (ix), (x) and (xiii).
It was claimed on behalf of the appellant that the Town
Planning Officer’s decision in the appellant’s case was
appealable either under clause (viii) or clause (xiii) of
section 32 (1). The Town Planning Officer has a duty under
clause (viii) to calculate the increment to accrue in
respect of each plot included in the final scheme (which we
will refer to hereinafter as the final plot for brevity’s
sake) in accordance with the provisions of section 65. Under
section 65 increment means the amount by which at the date
of the declaration of the intention to make a scheme, the
market value of a final plot calculated on the basis as if
the improvements contemplated in the scheme had stood
completed on that date exceeds the market value of the same
plot when taken into account without the improvements. The
increment is thus the difference in the market value of the
same final plot with the improvements and without the
improvements on the aforesaid date. The value of the
original plot does not arise for consideration under clause
(viii). Rule 17 of the Bombay Town Planning Rules, 1955 sets
out the particulars that a draft scheme shall contain in
addition to the particulars specified in
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section 25 of the Act. Clause (v) of rule 17 mentions a
"redistribution and valuation statement in Form ’B’ showing
the estimated amounts to be paid to, or by, each of the
owners included in the scheme". Form B makes it clear that
the increment is the difference in value of the same final
plot in its developed and undeveloped conditions; Form B
keeps the valuation of the original plot distinct from that
of the final plot. The appellant’s case therefore cannot
fall under clause (viii).
Does the case fall under clause (xiii)? Under clause
(xiii) the Town Planning Officer is required to estimate the
compensation to be paid to the owner of any property or
right injuriously affected by the making of a town planning
scheme in accordance with the provisions of section 69.
Section 69 states that the owner of any property or right
which is injuriously affected by the making of a town
planning scheme shall be entitled to obtain compensation
from the local authority or from any person benefited or
partly from the local authority and partly from such person
as the Town Planning Officer may in each case determine. It
seems obvious that the property or right which is
injuriously affected by the making of a town planning scheme
is a property or right other than that acquired for the
purposes of the scheme. The property or right affected
remains with the owner who is entitled to compensation for
such injurious affection. When under the Act a plot of land
is taken for the purposes of a town planning scheme, it
cannot be suggested that land itself is injuriously
affected; such a view is unsupportable both as a matter of
language and having regard to the scheme of the Act. On
behalf of the appellant it was urged that clause (xiii)
would cover the case of the appellant if only we read a few
words in that clause and that we should do so to avoid
injustice being done to the appellant and the owners of land
similarly situated. That we are afraid is not possible. We
find no compelling reason for restructuring that clause, and
taking acquisition of land to mean ’injurious affection’ of
the land acquired would be inconsistent with the entire
scheme of the Act. We may refer to clause ’fourthly’ of
section 23 (1) of the land Acquisition Act, 1894 which
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requires the court to take into consideration in determining
the amount of compensation to be awarded for land acquired
under that Act, the damage sustained by the "person
interested" "by reason of the acquisition injuriously
affecting his other property". The expression "person
interested" as defined in section 3 of the Land Acquisition
Act means all persons claiming an interest in compensation
to be made on account of the acquisition of land under that
Act. It is made clear in clause
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’fourthly’ that the damage is for injurious affection of
some property other than the land acquired. The sense in
which the expression ’injurious affection’ is used in
section 23 (1) of the Land Acquisition Act is the generally
accepted meaning of that expression and we find nothing in
the Act concerned in this case that suggests that it should
be construed differently.
It was then argued that if neither clause (viii) nor
clause (xiii) was applicable, then there was no clause in
section 32 (1) of the Act that covers the appellant’s case.
The contention is not correct. The owner of an original plot
who is not provided with a plot in the final scheme gets his
right to compensation from section 71 of the Act which says
that the net amount of loss shall be payable to him by "the
local authority in cash or in such other way as may be
agreed upon by the parties". The principle for determining
the compensation is the same whether an owner of land is
given a reconstituted plot or not; compensation is payable
on the basis of the market value of the plot at the date of
declaration of the intention to make a scheme. In the
appellant’s case it would be the value of the original plot
and not the final plot. In determining the difference
between the total of the values of the original plots and
the total of the values of the plots included in the final
scheme, the Town Planning Officer under section 32 (1) (iii)
has to find out the market value of each of the original
plots at the date of the declaration of intention to make a
scheme as provided in section 64 (1) (f). Thus the Act
contains the necessary provisions for estimating the
compensation payable to an owner of land who has not been
given a reconstituted plot.
We therefore hold that the High Court was right in
finding that the decision of the Town Planning Officer
determining the amount of compensation in the appellant’s
case was not appealable. In the view we take, Mr. Nariman
should be allowed to urge the grounds concerning the
constitutional validity of the Act. This case may now be
placed before a Constitution Bench for hearing. An
application has been filed on behalf of the appellant for
leave to urge additional grounds; this application may also
be considered by the Constitution Bench that will hear this
appeal.
P.B.R. Appeal dismissed.
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