Full Judgment Text
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CASE NO.:
Appeal (civil) 2530 of 2007
PETITIONER:
Chairman, Indore Vikas Pradhikaran’
RESPONDENT:
M/s Pure Industrial Cock & Chem. Ltd. & Ors
DATE OF JUDGMENT: 15/05/2007
BENCH:
S.B. Sinha & Markandey Katju
JUDGMENT:
J U D G M E N T
CIVIL APPEAL NO. 2530 OF 2007
[Arising out of SLP (Civil) No. 5318 of 2007]
W I T H
CIVIL APPEAL NO. 2531 OF 2007
[Arising out of SLP (Civil) No. 5695 of 2007]
S.B. SINHA, J :
1. Leave granted.
2. Interpretation of the provisions of Madhya Pradesh Nagar Tatha Gram
Nivesh Adhiniyam, (No. 23 of 1973) (for short, ’the Act’) is in question in
these appeals which arise out of the judgments and orders dated 06.03.2007
passed by a Division Bench of the High Court of Madhya Pradesh in Writ
Petition No. 9396 of 2006 and Writ Appeal No. 462 of 2006.
3. Before we advert to the said question, we may notice the admitted fact
of the matter.
4. The said Act was enacted to make provisions for planning and
development and use of land; to make better provision of the preparation of
the development plans and zoning plans with a view to ensuring that town
planning schemes are made in a proper manner and their execution is made
effective; to constitute a Town & Country Planning Authority for proper
implementation of town and country development plan; to provide for the
development and administration of special areas through a Special Area
Development Authority; to make provision for the compulsory acquisition of
land required for the purposes connected with the said matters. The said Act
came into force with effect from 16.04.1973.
Statutory Provisions :
5. The terms "development", "existing land use map", "planning area",
"Town Development Scheme" and "Town and Country Development
Authority", which are relevant for the purpose of this case, have been
defined in Section 2(f), 2(i), 2(o), 2(u) and 2(v) of the Act respectively in
the following terms :
"2(f) "development" with its grammatical variations
means the carrying out of a building, engineering,
mining or other operation in, on over or under
land, or the making of any material change in any
building or land or in the use of either, and
includes sub-division of any land;"
"2(i) "existing land use map" means a map indicating
the use to which lands in any specified area are put
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at the time of preparing the map, and includes the
register prepared, with the map giving details of
land-use."
"2(o) "planning area" means any area declared to be a
planning area under this Act: Non-Planning area
shall be construed accordingly."
"2(u) "Town Development Scheme" means a scheme
prepared for the implementation of the provisions
of a development plan by the Town and Country
Development Authority and includes "Scheme""
"2(v) "Town and Country Development Authority"
means an authority established under Section 38."
6. Chapter IV of the Act deals with planning areas and development
plans. Section 13(1) empowers the State Government to constitute planning
areas for the purposes of the said Act and define the limits thereof. Sub-
section (2) of Section 13 empowers the State Government by notification,
inter alia, to alter the limits of the planning area so as to include therein or
exclude therefrom such areas, as may be specified in the notification; to
amalgamate two or more planning areas so as to constitute one planning
area; to divide any planning area into two more planning areas; and to
declare that the whole or part of the area constituting the planning area shall
cease to be a planning area or part thereof. Sub-section (3) of Section 13 of
the Act provides for a non-obstante clause, in terms whereof, the local
authority mentioned therein shall in relation to the planning areas from the
date of the notification issued under sub-section (1) cease to exercise the
powers, perform the functions and discharge the duties which the State
Government or the Director is competent to exercise. Section 14 of the Act
enables the Director to prepare an existing land use map and development
plan. Section 15 enables the Director to carry out the survey and prepare an
existing land use map and forthwith publish the same in the manner laid
down therein. Once such a plan is published, no person is authorised to
institute or change the use of any land or carry out any development of land
for any purpose other than that indicated in the existing land use map
without the permission in writing of the Director.
7. Clause (b) of sub-section (1) of Section 16, however, provides :
"(b) no local authority or any officer or other authority
shall, notwithstanding anything contained in any
other law for the time being in force, grant
permission for the change in use of land otherwise
than as indicated in the existing land use map
without the permission in writing of the Director."
8. Section 17 provides as to what should be the contents of the
development plan. Section 17A(1) provides for constitution of a committee;
sub-sections (2) and (3) whereof read as under :
"(2) The Committee constituted under sub-section (1),
shall :
(a) consider and suggest modifications and
alterations in the draft development plan
prepared by the Director under section 14;
(b) hear the objections after the publication of
the draft development plan under section 18
and suggest modifications or alterations if
any; to the Director.
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(3) The Convenor of the Committee shall record in
writing all the suggestions, modifications and
alterations recommended by the committee under
sub-section (2) and thereafter forward his report to
the Director."
9. Section 18 of the Act provides for publication of a development plan;
in terms whereof the objections and suggestions in writing are invited with
respect thereto. The notice in terms of the said provision is to specify in
regard to the draft development plan, inter alia, the following particulars :
"(i) the existing land use maps;
xxx xx xxx
(iv) the provisions for enforcing the draft development
plan and stating the manner in which permission
for development may be obtained."
10. Section 19 provides for sanction of development plans, sub-section (2)
whereof reads as under :
"(2) Where the State Government approves the
development plan with modification the State
Government shall, by a notice published in the Gazette,
invite objections and suggestions in respect of such
modifications within a period of not less than thirty days
from the date of publication of the notice in the Gazette."
11. Preparation of zoning plan is envisaged under Chapter V thereof.
Section 20 reads as under :
"20. The Local Authority may on its own motion at any
time after the publication of the development plan, or
thereafter if so required by the State Government shall,
within six months of such requisition, prepare a zoning
plan."
12. In the zoning plan more details of land use as indicated in the
development plan are to be indicated and, inter alia, shall :
"(c) allocate in detail areas or zones for residential,
commercial, industrial, agricultural, and other
purposes;
13. Chapter VI of the Act deals with control of development and use of
land, provided that the overall control of development and use of land in the
State shall vest in the State Government; sub-section (2) of Section 24
reads as under :
"(2) Subject to the provision of sub-section (1) and
the rules made under this Act, the overall control of
development and use of land in the planning area shall
vest in the Director with effect from such date as the
State Government may by notification, appoint in this
behalf."
14. Section 25 envisages that the use and development of land shall
conform to the provisions of the development plan. Section 38 occurring in
Chapter VII provides for establishment of a Town and Country
Development Authority, sub-sections (1) and (2) whereof read as under :
"38(1).-The State Government may, by notification,
establish a Town and Country Development Authority by
such name and for such area as may be specified in the
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notification.
(2) The duty of implementing the proposal in
the development plan, preparing one or more town
development schemes and acquisition and development
of land for the purpose of expansion or improvement of
the area specified in the notification under sub-section (1)
shall, subject to the provisions of this Act vest in the
Town & Country Development Authority established for
the said area."
15. Section 49 of the Act envisages that a town development scheme may
make provision for the matters specified therein including acquisition of
land for the purposes mentioned therein as also any other work of such a
nature as would bring about environmental improvements which may be
taken up by the authority with the prior approval of the State Government.
16. Sub-sections (1), (2), (3) and (4) of Section 50 of the Act, which are
material for our purpose, read as under :
"50.(1) The Town and Country Development
Authority may, at any time, declare its intention to
prepare a town development scheme.
(2) Not later than thirty days from the date of such
declaration of intention to make a scheme, the Town and
Country Development Authority shall publish the
declaration in the Gazette and in such other manner as
may be prescribed.
(3) Not later than two years from the date of
publication of the declaration under sub-section (2) the
Town and Country Development Authority shall prepare
a town development scheme in draft form and publish it
in such form and manner as may be prescribed together
with a notice inviting objections and suggestions from
any person with respect to the said draft development
scheme before such date as may be specified therein,
such date being not earlier than thirty days from the date
of publication of such notice.
(4) The Town and Country Development Authority
shall consider all the objections and suggestions as may
be received within the period specified in the notice
under sub-section (3) and shall after giving a reasonable
opportunity to such persons affected thereby as are
desirous of being heard or after considering the report of
the committee constituted under sub-section (5) approve
the draft scheme as published or make such
modifications therein as it may deem fit."
17. A proviso has been added thereafter to sub-section (4) by Act of 2004
in terms whereof a draft scheme must be approved within the period of one
year from the publication thereof. Section 51 provides for revision of the
draft scheme. Section 53 imposes restrictions on land use and land
development in the following terms :
"53. As from the date of publication of the
declaration to prepare a town development scheme, no
person shall, within the area included in the scheme,
institute or change the use of any land or building or
carry out any development, save in accordance with the
development authorised by the Director in accordance
with the provisions of this Act prior to the publication of
such declaration."
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18. Section 55 provides that land needed for the purpose of town
development scheme shall be deemed to be land needed for public purpose.
Section 72 empowers the State Government to supervise and control the acts
and proceedings of the officers appointed under Section 3 and the authorities
constituted under the said Act. The State can issue directions in terms of
Section 73 of the Act. Section 75 Section provides for delegation of powers.
Notifications :
19. On or about 13.02.1974, the State Government issued a notification
under sub-section (1) of Section 13 of the Act constituting Indore Planning
Area, the limits whereof were defined in the schedule appended thereto.
Indisputably, it constituted only 37 villages. The villages Bicholi and
Kanadia, with which we are concerned herein, were not included therein.
20. The State Government in exercise of power conferred upon it under
Section 38 of the Act issued a notification establishing the Appellant-
Authority, namely, ’Indore Vikas Pradhikaran’ from 13.05.1977 in respect
of the area specified in the notification dated 13.02.1974.
21. On or about 30.03.1999, the State Government delegated its power
under Sections 13 and 47A of the Act in favour of the District Planning
Committee and it in exercise of said delegated power by a notification dated
13.11.2000 amended the planning area by adding 115 villages therein which
included the said villages Bicholi and Kanadia. By a notification dated
28.06.2002, it, however, further amended the extent of planning area by
deleting 62 villages therefrom. Bicholi and Kanadia villages were, however,
retained in the said amended notification.
22. Upon compliance of the usual statutory formalities, the appellant
published a draft development plan on 27.06.2003. The said plan was in
respect of Urban Development Scheme No.164. Objections and suggestions
in respect thereof were called for. Allegedly, objections and suggestions
having been filed; they were heard by the Development Planning Committee
during the period between 25.08.2003 and 03.09.2003. By a resolution
adopted in a meeting held on 20.08.2004 a decision in anticipation of
approval of the Government under Section 50(1) of the Act was proposed,
which included the lands of villages Bicholi and Kanadia, inter alia, for
construction of a bye-pass road of 60 metres width. A declaration of
intention to prepare a town development scheme in terms of sub-section (2)
of Section 50 was issued on 24.08.2004. Indisputably, in terms of sub-
section (3) of Section 50 of the Act, the draft town development scheme was
to be prepared within a period of two years therefrom. On or about
02.12.2004, Respondent applied for sanction of development plans under
Section 29(1) of the Act. We may, however, notice that on 04.01.2005, the
said draft development plans were returned by the State of Madhya Pradesh
in terms of Section 19(1) of the Act with a direction that the plans be
prepared for the projected population as in the year 2021 and the same be
placed before the Government for approval as soon as possible.
23. The State of Madhya Pradesh, however, issued a notification in terms
of sub-section (1) of Section 38 of the Act, inter alia, in respect of the
villages in question, namely, Bicholi and Kanadia only on 28.10.2005.
Appellant issued a notification on 18.05.2006 inviting objections in respect
of the said scheme. A Draft Development Plan-2021 was published on
13.07.2006.
Contentions of the writ petitioner-respondents :
24. Respondents’ lands situated in villages Bicholi and Kanadia were
within the respective jurisdictions of the Gram Panchayats constituted under
the provisions of the Madhya Pradesh Gram Panchayat Act. The said
panchayats in terms of the provisions of the Act were ’local authorities’.
They submitted applications for grant of building plan in the year 1990 and
the same was sanctioned on or about 05.04.1991.
25. Respondents, as noticed hereinbefore, applied for and obtained
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sanction in terms of the building bye-laws framed by the respective gram
panchayats in 1991 for grant of development plans under Section 29(1) on
02.12.2004. The said applications were rejected by the Joint Director, Town
and Country Planning in view of the purported publication of the plan under
sub-section (2) of Section 50 of the Act. Respondents filed a writ petition
against the said order, inter alia, praying for issuance of a writ or order in
the nature of mandamus directing the said authority to sanction the site plan
which had been submitted. The said writ petitions were dismissed by a
learned Single Judge by an order dated 17.05.2006. Writ appeals were
preferred thereagainst, which have been allowed by the Division Bench of
the High Court by its judgment dated 06.03.2007.
High Court Judgment :
26. By reason of the impugned judgment, the High Court struck down the
declaration made under Section (2) of Section 50 of the Act, opining :
(i) Unless a development plan for an area is published and comes
into operation, a draft development scheme cannot be published by the
Town and Country Development Authority under sub-section (2) of
Section 50 of the Act.
(ii) Such a town development scheme cannot by itself without a
development plan for the area restrict the right of a person to use his
property in the manner he likes.
(iii) Although the notification issued by the Appellant-Authority had
been constituted by the State Government only in respect of the area
which was covered by the notification dated 13.02.1974, the draft
development scheme prepared by it was ultra vires, so far as the said two
villages are concerned, being beyond its territorial jurisdiction.
Submissions :
27. Mr. K.K. Venugopal, and Mr. S.K. Gambhir, learned Senior Counsel
appearing on behalf of the appellant, submitted :
(i) The High Court committed a serious error in interpreting the
provisions of Section 50 of the Act, inasmuch : (i) Under the Act an
existing land use map has to be published which would indicate
broadly the land use proposed in the planning area and the areas or
zones of land allocated for the purposes mentioned therein; and (ii) As
the scheme covers the villages in question, the same could not have
been ignored.
(ii) Having regard to the fact that the scheme provides for construction of
a bypass road of 70 feet width, any construction by the builders would
lead to haphazard development and, thus, would completely destroy
the purpose for which the land was to be reserved for planned
development of the residential area.
(iii) Undertaking of haphazard and unplanned development would carry
with it a statutory injunction provided for under Section 53 of the Act,
in terms whereof, if an existing land use map or a draft development
plan or a town development scheme is published, no person is
permitted to obtain any permission for carrying out any development
contrary thereto or inconsistent therewith.
(iv) The materials on records established that a large number of
permissions were obtained by the private developers which if allowed
to be implemented shall result in haphazard development of colonies
and buildings and, thus, defeat the purpose of the Act.
(v) As Section 50 is not subject to the publication of a final development
plan, as would be evident from the words used therein, namely, ’at
any time’, Section 53 would operate as soon as an intention is
expressed by issuance of a notification in terms thereof.
(vi) Section 50 of the Act must be read in the contrast with Section 20
thereof. So read, a town development scheme must be consistent
with the provisions of the existing land use map as well as a draft
development plan; as otherwise the purport and object for which
Section 53 has been enacted would become otiose.
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(vii) The Authority constituted under Section 38 being statutorily obligated
to implement the development plan, as would appear from Sections
38(2) and 49 of the Act, the power/duty to prevent haphazard by
declaring the town development scheme must be held to be vested in
the Appellant-Authority.
(viii) The State of Madhya Pradesh having framed rules known as ’Madhya
Pradesh Bhumi Vikas Niyam, 1984’, (Rules) which are parts of the
town development scheme, keeping in view the fact that the scheme
provided for 10,000 houses for the low income group wherefor three
major roads were required to be built up having a width of 75 metres,
60 metres and 36 metres respectively as also parks, roads, colleges,
gardens, playgrounds and green belts, the purposes for which such
scheme had been framed would not be subserved, if permissions are
granted for haphazard and unplanned development.
(ix) In any event, private interest must be waived to public interest.
(x) The High Court committed a manifest error insofar it failed to take
into consideration that the planning area having been extended by a
notification issued by the District Planning Committee, the same
would subserve the purpose of the notification dated 28.10.2005
issued under sub-section (1) of Section 38 of the Act.
28. Mr. Banthia, the learned counsel appearing on behalf of the State had
not made any separate submission before us.
29. Mr. C.A. Sundaram and Mr. Arun Jaitley, learned Senior Counsel
appearing on behalf of the respondents in these appeals, on the other hand,
would submit :
(i) The land of the respondents being outside the planning area, as
notified by the State of Madhya Pradesh constituting the Appellant-
Authority, the purported town development scheme would not be
applicable in relation thereto. Only because the planning area has
been extended by the District Planning Committee, the same would
not ipso fact enlarge the territorial jurisdiction of the Appellant-
Authority.
(ii) Safeguard of public interest has sufficiently been taken care of in
terms of the Act., as upon issuance of a notification under Section 13
of the Act, the Director only is authorised to sanction a plan for
development and carry out other functions as laid down under
Sections 15, 16 and 17 of the Act.
(iii) The committee constituted under Section 17-A of the Act is the only
authority which can consider and suggest modifications in the draft
development plan prepared by the Director under Section 14,
whereafter only a draft development plan can be published in terms of
Section 18; sub-section (2) whereof in turn envisages consideration of
objections, suggestions, etc.
(iv) Only upon completion of the procedures laid down in the said
provisions development plan can be sanctioned by the State under
Section 19 and, thus, in the event the State Government has power to
make modification in the development plan, the same would come
into operation only from the date of publication of the notification in
the gazette issued under sub-section (4) thereof.
(v) Procedure laid down in the provisions of the Act having not been
fulfilled, the impugned action had resulted in breach of law and, thus,
the same had rightly been struck down.
(vi) Chapter V of the Act provides for preparation of zoning plans and the
contents thereof having been prescribed, the safeguards envisaged
under Sections 18 and 19 of the Act would take care of public interest
involved, inasmuch the overall control and development as also land
use is vested in the Director and in that view of the matter unless a
final development plan comes into being, the Appellant-Authority
cannot be held to have any jurisdiction thereover in view of Section
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38 of the Act.
(vii) The definition of the ’town development scheme’ as contained in
Section 2(u) of the Act presupposes existence of a sanctioned
development plan prepared as per law, and, thus, in absence thereof a
town development scheme under Section 50 cannot be made.
(viii) In view of the fact that the State Government has issued a notification
on 28.10.2005 extending the area of operation of the Appellant-
Authority, the scheme illegally notified by it would not be
invalidated.
(ix) Gram Panchayat of the village being the competent authority at the
relevant time having sanctioned the building plan, a vested right had
accrued in favour of the first respondent and such a power having
been acknowledged and accepted under the provisions of the Act, the
same cannot be taken away.
Analysis of the statutory provisions :
30. The Act is divided into several chapters. It proceeds on the basis that
steps are required to be taken before a town planning scheme is given effect
to. The State Government is in overall control of the matter relating to town
and country planning.
31. The Director of Town and Country Planning, however, subject to the
control and supervision of the State, exercises such statutory powers which
are conferred upon him. A State is divided into several regions. A regional
plan is finalised whereupon restrictions on use of land or development
thereof can be imposed. Such regional plan is subject to review.
32. Chapter IV of the Act provides for carving out planning areas and
preparation of development plans. Development plans are required to be
prepared and finalised only in relation to the planning areas. An area,
however, which is notified can be sub-divided into planning areas and non-
planning areas.
33. Chapter V of the Act deals with the preparation, finalization, review
and modifications of the zonal plan wherewith we are not concerned much
in these appeals. Chapter VI of the Act provides for control of development
and use of land. In terms of Section 24 of the Act, the Director is to control
land use. Preparation of development plan, prohibition of development
without permission and matters connected therewith and incidental thereto
are also dealt with in Chapter VI. Chapter VII of the Act, however, provides
for shift of control in respect of land use and development for the hands of
the Director and, consequently of the State to the Town and Country
Development Authority. Section 38 provides for establishment of Town and
Country Development Authority.
34. The Act envisages the following steps which are required to be
complied with :
(a) Constitution of a planning area by notification under
Section 13.
(b) Compliance of the detailed procedure set out under Sections 14
to 19, leading to sanction of the development plan under
Section 19. The said procedure envisages compliance of
principles of natural justice.
(c) Section 38 provides for establishment of a Town and Country
Development Authority, by notification "for such areas as may
be specified in the notification". Under sub-section (2) thereof,
duties of implementation of the development plan and
preparation of the town development scheme have been cast
on the Town and Country Development Authority.
(d) The town development scheme is to be prepared upon
following the procedure set out under Section 50. The said
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scheme can be prepared only when there exists a development
plan, prepared in accordance with the procedure prescribed
under the Act as envisaged under Sections 14 to 19 and after
notification under Section 38(1). In this regard, reference may
be also be made to Section 2(u) of the Act, which describes a
town development scheme to mean a scheme prepared for
implementation of the provisions of the development plan.
35. Before the procedure referred to hereinbefore is applied to the case at
hand, it would appear that the notification dated 13.02.1974 issued under
Section 13 of the Act extending the planning area would not include the land
of the respondents being outside its territorial jurisdiction. By reason of
1977 Notification the villages in question in which the lands of the
respondents are situated, Indore Development Plan, 19991 would not have
any application thereover. The notification issued under Section 38(1) of the
Act on 09.05.1977, would, thus, be limited to the area specified under the
notification dated 13.02.1974.
36. A Town and Country Development Authority although may have
something to do with the preparation of the draft development plan. It
exercises complete control, subject of course to the power of the State
Government, to give directions, exercises revisional power, etc. over
implementation of the development plan by making town development
schemes.
37. Chapter VIII of the Act deals with special areas. Chapter IX,
however, envisages power of the State Government of supervision and
control as also to issue necessary directions. The State has also the power to
review plans for ensuring conformity. It may also delegate its power from
time to time. Dissolution of authority at the hands of the State is envisaged
under Section 76 of the Act.
38. When a planning area is defined, the same envisages preparation of
development plan and the manner in which the existing land use is to be
implemented. A development plan in some statutes is also known as a
master plan. It lays down the broad objectives and parameters wherewith
the development plan is to deal with. It also lays down the geographical
splitting giving rise to preparation and finalization of zonal plans. The zonal
plans contain more detailed and specific maters than the master plan or the
development plan. Town planning scheme or lay-out plan contains further
details on plot-wise basis. It may provide for the manner in which each plot
shall be dealt with as also the matter relating to regulations of development.
39. Once, however, the existing land use is in place, subject to certain
restrictions contained in the Act, the Director would permit land use in the
same manner as is found to be existing.
40. The old laws, in relation thereto, as also the permissions granted by
the local authorities which includes a gram panchayat are permitted to
operate till new laws are framed and/ or till new building regulations are
made.
41. When existing land use is in place, use thereof for purposes other than
the existing land use is frozen. However, subject to permission granted by
the Director, the development of land is not frozen.
42. When a draft development plan is prepared, the same is subject to
grant of approval and/ or modification thereof. We will deal with the matter
at some details a little later but at this stage, we may notice that end use of
the land is not frozen until a final sanction plan comes into being. A town
planning scheme, as would appear from its definition contained in Section
2(4) of the Act, is prepared only for the purpose of implementation of a
development plan. Yet again, we would deal with the question as to whether
the same would bring within its sweep the draft development plan or only
final development plan a little later, but it may be noticed that once a valid
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town planning scheme comes into force, indisputably, there may be freezing
of land use as also freezing of development and, thus, a total embargo is
placed except in such cases where the Director had granted permission.
Section 53 of the Act, however, in the event a valid town planning scheme is
made, places a total embargo both on land use as also the development.
Even the Director is denuded of its power to issue any further permission.
Existing land use, draft development plan and final development plan
envisage two-stage exercise. In drafting or finalizing a zonal plan, a similar
exercise is undertaken. In making a town development scheme, however,
the process undertaken is a three-stage one inasmuch as an intention therefor
is declared which entails serious consequences and, as noticed hereinbefore,
by reason thereof, a total embargo is imposed both on land use as also the
development. For the said purpose, a time limit within which a draft town
planning scheme has to be finalized is provided but the same can be subject
to modification by the State which ordinarily should be with a view to deal
with the same in line with the final development plan.
Principal questions :
43. In these appeals, principally, we are beset with two questions:
(i) Whether having regard to notification dated 13.02.1974 vis-‘-vis
the expansion of the Indore Development Plan, the District
Committee in exercise of its delegated power can automatically
extend the area of operation of the appellant despite the
notification constituting it by the State whereby and whereunder its
area of operation was limited to the one covered by the notification
dated 13.02.1974 ?
(ii) Whether the appellant \026 authority can declare its intention in terms
of Section 50 of the Act before the development attained finality.
Competing Interest :
44. There are two competing interests, viz., one, the interest of the State
vis-‘-vis the general public and, two, to have better living conditions and the
right of property of an individual which although is not a fundamental right
but is a constitutional and human right.
45. Before we embark upon the questions involved in these appeals, we
would like to make some general observations.
46. Town and country planning involving land development of the cities
which are sought to be achieved through the process of land use, zoning
plan and regulating building activities must receive due attention of all
concerned. We are furthermore not oblivious of the fact that such planning
involving highly complex cities depends upon scientific research, study and
experience and, thus, deserves due reverence.
47. Where, however, a scheme comes into force, although it may cause
hardship to the individual owners as they may be prevented from making the
most profitable use of their rights over property, having regard to the drastic
consequences envisaged thereunder, the statute should be considered in such
a manner as a result whereof greater hardship is not caused to the citizens
than actually contemplated thereby. Whereas an attempt should be made to
prevent unplanned and haphazard development but the same would not
mean that the court would close its eyes to the blatant illegalities committed
by the State and/or the statutory authorities in implementation thereof.
Implementation of such land development as also building laws should be in
consonance with public welfare and convenience. In United States of
America zoning ordinances are enacted pursuant to the police power
delegated by the State. Although in India the source of such power is not
police power but if a zoning classification imposes unreasonable restrictions,
it cannot be sustained. The public authority may have general
considerations, safety or general welfare in mind, but the same would
become irrelevant, as thereby statutory rights of a party cannot be taken
away. The courts must make an endeavour to strike a balance between
public interest on the one hand and protection of a constitutional right to
hold property, on the other.
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48. For the aforementioned purpose, an endeavour should be made to find
out as to whether the statute takes care of public interest in the matter vis-‘-
vis the private interest, on the one hand, and the effect of lapse and/ or
positive inaction on the part of the State and other planning authorities, on
the other.
49. The courts cannot also be oblivious of the fact that the owners who
are subject to the embargos placed under the statute are deprived of their
valuable rightful use of the property for a long time. Although ordinarily
when a public authority is asked to perform statutory duties within the time
stipulated it is directory in nature but when it involves valuable rights of the
citizens and provides for the consequences therefor it would be construed to
be mandatory in character.
50. In T. Vijayalakshmi v. Town Planning Member [(2006) 8 SCC 502],
this Court held:
"15. The law in this behalf is explicit. Right of a person
to construct residential houses in the residential area is a
valuable right. The said right can only be regulated in
terms of a regulatory statute but unless there exists a
clear provision the same cannot be taken away. It is also
a trite law that the building plans are required to be dealt
with in terms of the existing law. Determination of such a
question cannot be postponed far less taken away.
Doctrine of legitimate expectation in a case of this nature
would have a role to play."
It was further observed:
"18. It is, thus, now well-settled law that an application
for grant of permission for construction of a building is
required to be decided in accordance with law applicable
on the day on which such permission is granted.
However, a statutory authority must exercise its
jurisdiction within a reasonable time. (See Kuldeep Singh
v. Govt. of NCT of Delhi)"
51. What would be a public purpose in such a matter has been stated in
Prakash Amichand Shah v. State of Gujarat & Others [(1986) 1 SCC 581],
whereupon the State itself relied upon, in the following terms :
"19. In order to appreciate the contentions of the
appellant it is necessary to look at the object of the
legislation in question as a whole. The object of the Act
is not just acquiring a bit of land here or a bit of land
there for some public purpose. It consists of several
activities which have as their ultimate object the orderly
development of an urban area. It envisages the
preparation of a development plan, allocation of land for
various private and public uses, preparation of a Town
Planning Scheme and making provisions for future
development of the area in question. The various aspects
of a Town Planning Scheme have already been set out.
On the final Town Planning Scheme coming into force
under Section 53 of the Act there is an automatic vesting
of all lands required by the local authority, unless
otherwise provided, in the local authority. It is not a case
where the provisions of the Land Acquisition Act, 1894
have to be set in motion either by the Collector or by the
Government."
The impugned provision does not subserve such purpose.
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52. It is also not a case like State of Gujarat v. Shantilal Mangaldas &
Ors. [1969 (3) SCR 341], that when a development is made, the owner of
the property not only gets much more than what he would have got, if the
same remained undeveloped in the process but also get the benefit of living
in a developed town having good town planning.
53. The courts should, therefore, strive to find a balance of the competing
interest.
Human Right Issue :
54. The right of property is now considered to be not only a constitutional
right but also a human right.
55. The Declaration of Human Rights (1789) enunciates under Article 17
"since the right to property is inviolable and sacred, no-one may be deprived
thereof, unless public necessity, legally ascertained, obviously requires it
and just and prior indemnity has been paid". Further under Article 217
(IIII) of 10th December, 1948, adopted in the General Assembly Resolution
it is stated that : (i) Everyone has the right to own property alone as well as
in association with others. (ii) No-one shall be arbitrarily deprived of his
property.
56. Earlier human rights were existed to the claim of individuals right to
health, right to livelihood, right to shelter and employment etc. but now
human rights have started gaining a multifacet approach. Now property
rights are also incorporated within the definition of human rights. Even
claim of adverse possession has to be read in consonance with human rights.
57. As President John Adams (1797-1801) put it, :
"Property is surely a right of mankind as real as liberty." Adding,
"The moment the idea is admitted into society that property is not as sacred
as the laws of God, and that there is not a force of law and public justice to
protect it, anarchy and tyranny commence".
58. Property, while ceasing to be a fundamental right would, however, be
given express recognition as a legal right, provisions being made that no
person shall be deprived of his property save in accordance with law.
Interpretation of the Act :
59. The Act being regulatory in nature as by reason thereof the right of an
owner of property to use and develop stands restricted, requires strict
construction. An owner of land ordinarily would be entitled to use or
develop the same for any purpose unless there exists certain regulation in a
statute or a statutory rules. Regulations contained in such statute must be
interpreted in such a manner so as to least interfere with the right of property
of the owner of such land. Restrictions are made in larger public interest.
Such restrictions, indisputably must be reasonable one. [See Balram
Kumwat v. Union of India & Ors. (2003) 7 SCC 628; Krishi Utpadan Mandi
Samiti & Ors. v. Pilibhit Pantnagar Beej Ltd. & Anr. (2004) 1 SCC 391; and
Union of India & Ors. v. West Coast Paper Mills Ltd. & Anr. (2004) 2 SCC
747]. The statutory scheme contemplates that a person and owner of land
should not ordinarily be deprived from the user thereof by way of
reservation or designation.
60. Expropriatory legislation, as is well-known, must be given a strict
construction.
61. In Hindustan Petroleum Corporation Ltd. v. Daius Shapur Chenai &
Ors. [(2005) 7 SCC 627], construing Section 5A of the Land Acquisition
Act, this Court observed :
"6. It is not in dispute that Section 5-A of the Act
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confers a valuable right in favour of a person whose
lands are sought to be acquired. Having regard to the
provisions contained in Article 300-A of the
Constitution, the State in exercise of its power of
"eminent domain" may interfere with the right of
property of a person by acquiring the same but the same
must be for a public purpose and reasonable
compensation therefor must be paid.
7. Indisputably, the definition of public purpose is of
wide amplitude and takes within its sweep the acquisition
of land for a corporation owned or controlled by the
State, as envisaged under sub-clause (iv) of clause (f) of
Section 3 of the Act. But the same would not mean that
the State is the sole judge therefor and no judicial review
shall lie. (See Jilubhai Nanbhai Khachar v. State of
Gujarat.)"
It was further stated :
"29. The Act is an expropriatory legislation. This
Court in State of M.P. v. Vishnu Prasad Sharma
observed that in such a case the provisions of the statute
should be strictly construed as it deprives a person of his
land without consent. [See also Khub Chand v. State of
Rajasthan and CCE v. Orient Fabrics (P) Ltd.]
There cannot, therefore, be any doubt that in a case of
this nature due application of mind on the part of the
statutory authority was imperative."
62. In State of Rajasthan & Ors. v. Basant Nahata [JT 2005 (8) SC 171],
it was opined :
"\005In absence of any substantive provisions contained in
a parliamentary or legislative act he cannot be refrained
from dealing with his property in any manner he likes.
Such statutory interdict would be opposed to one’s right
of property as envisaged under Article 300A of the
Constitution of India."
63. In State of Uttar Pradesh v. Manohar [(2005) 2 SCC 126], a
Constitution Bench of this Court held :
"Ours is a constitutional democracy and the rights
available to the citizens are declared by the Constitution.
Although Article 19(1)(f) was deleted by the Forty-fourth
Amendment to the Constitution, Article 300-A has been
placed in the Constitution, which reads as follows:
"300-A. Persons not to be deprived of property
save by authority of law.\027No person shall be
deprived of his property save by authority of law."
This is a case where we find utter lack of legal
authority for deprivation of the respondent’s property by
the appellants who are State authorities\005"
64. In Jilubhai Nanbhai Khachar & Ors. v. State of Gujarat and Anr.
[(1995) Supp. 1 SCC 596], the law is stated in the following terms :
"The right of eminent domain is the right of the
sovereign State, through its regular agencies, to reassert,
either temporarily or permanently, its dominion over any
portion of the soil of the State including private property
without its owner’s consent on account of public
exigency and for the public good. Eminent domain is the
highest and most exact idea of property remaining in the
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Government, or in the aggregate body of the people in
their sovereign capacity. It gives the right to resume
possession of the property in the manner directed by the
Constitution and the laws of the State, whenever the
public interest requires it. The term ’expropriation’ is
practically synonymous with the term "eminent domain"
It was further observed :
"48. The word ’property’ used in Article 300-A must
be understood in the context in which the sovereign
power of eminent domain is exercised by the State and
property expropriated. No abstract principles could be
laid. Each case must be considered in the light of its own
facts and setting. The phrase "deprivation of the property
of a person" must equally be considered in the fact
situation of a case. Deprivation connotes different
concepts. Article 300-A gets attracted to an acquisition or
taking possession of private property, by necessary
implication for public purpose, in accordance with the
law made by Parliament or a State Legislature, a rule or a
statutory order having force of law. It is inherent in every
sovereign State by exercising its power of eminent
domain to expropriate private property without owner’s
consent. Prima facie, State would be the judge to decide
whether a purpose is a public purpose. But it is not the
sole judge. This will be subject to judicial review and it is
the duty of the court to determine whether a particular
purpose is a public purpose or not. Public interest has
always been considered to be an essential ingredient of
public purpose. But every public purpose does not fall
under Article 300-A nor every exercise of eminent
domain an acquisition or taking possession under Article
300-A. Generally speaking preservation of public health
or prevention of damage to life and property are
considered to be public purposes. Yet deprivation of
property for any such purpose would not amount to
acquisition or possession taken under Article 300-A. It
would be by exercise of the police power of the State. In
other words, Article 300-A only limits the powers of the
State that no person shall be deprived of his property
save by authority of law. There has to be no deprivation
without any sanction of law. Deprivation by any other
mode is not acquisition or taking possession under
Article 300-A. In other words, if there is no law, there is
no deprivation. Acquisition of mines, minerals and
quarries is deprivation under Article 300-A."
65. Rajendra Babu, J (as the learned Chief Justice then was) in Sri
Krishnapur Mutt, Udupi v. N. Vijayendra Shetty and Anr. [1992 (3) Kar.L.J.
326] observed :
"The restrictions imposed in the planning law
though in public interest should be strictly interpreted
because they make an inroad into the rights of a private
persons to carry on his business by construction of a
suitable building for the purpose and incidentally may
affect his fundamental right if too widely interpreted\005"
66. The question has also been addressed by a decision of the Division
Bench of this Court in Pt. Chet Ram Vashist (Dead) by LRs. v. Municipal
Corporatiopn of Delhi [(1995) 1 SCC 47], wherein R.M. Sahai, J., speaking
for the Bench opined :
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"6. Reserving any site for any street, open space,
park, school etc. in a layout plan is normally a public
purpose as it is inherent in such reservation that it shall
be used by the public in general. The effect of such
reservation is that the owner ceases to be a legal owner of
the land in dispute and he holds the land for the benefit of
the society or the public in general. It may result in
creating an obligation in nature of trust and may preclude
the owner from transferring or selling his interest in it. It
may be true as held by the High Court that the interest
which is left in the owner is a residuary interest which
may be nothing more than a right to hold this land in trust
for the specific purpose specified by the coloniser in the
sanctioned layout plan. But the question is, does it entitle
the Corporation to claim that the land so specified should
be transferred to the authority free of cost. That is not
made out from any provision in the Act or on any
principle of law. The Corporation by virtue of the land
specified as open space may get a right as a custodian of
public interest to manage it in the interest of the society
in general. But the right to manage as a local body is not
the same thing as to claim transfer of the property to
itself. The effect of transfer of the property is that the
transferor ceases to be owner of it and the ownership
stands transferred to the person in whose favour it is
transferred. The resolution of the Committee to transfer
land in the colony for park and school was an order for
transfer without there being any sanction for the same in
law."
[See also Raju S. Jethmalani v. State of Maharashtra [(2005) 4 SCALE
688].
Application of the Act :
67. While determining the questions involved in these appeals, we are not
unmindful that the purpose and object of the town development scheme is a
laudable one insofar as it purports to allocate areas covered by Scheme No.
164 for residential purposes and a bypass road of 70 feet wide is to be built
along the eastern periphery of the area covered by the Scheme. The
question, however, would be as to whether the development can be said to
be a haphazard one or would completely destroy the purpose for which the
land was to be reserved for planned development of the residential area.
68. The process started in the year 1974. Only 37 villages were included
within the planning area. It may be that with the passage of time the
requirements for a better planned city were felt, but it is difficult to conceive
that the State of Madhya Pradesh while constituting the appellant \026 authority
in terms of Section 38(1) of the Act by reason of its notification dated
09.05.1977 was wholly oblivious thereto. When the Act came into force the
existing land use was determined. The area for which, thus, land could be
put to use was fixed. No land could be used for a purpose which is not
envisaged by land use.
69. A Director who is a very high ranking officer and is answerable only
to the State is appointed under the Act to put an eye over the development
activities; be it by the developers or others. Apart from the fact that gram
panchayat which is a local authority within the meaning of the provisions of
the Act had the occasion to consider each application for grant of sanction of
the building plans which presumably would require to be drawn directly in
terms of the building bylaws framed under a statute which in turn gave rise
to a presumption that it had received an approval of the State, in the event of
any further development the permission of the Director is necessary. The
Director, however, being an authority under the Act was statutorily enjoined
to perform his duties within the four-corners of the statute. Whereas the said
statutory authority is required to apply its mind before an application for
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grant of development of land is filed, which itself having regard to its wide
definition is extensive in nature, to the requirements of law, it cannot unduly
withhold such permission if the application otherwise fulfils the statutory
conditions. The Act itself envisages that in the event an application is not
disposed of within the time specified, a development plan would be deemed
to be sanctioned. [See Section 30(5) of the Act] Land use, therefore, is
restricted. The manner in which the permission for construction of building
is to be granted is also well-defined.
70. Respondents obtained permission for development from the
competent authority for diversion of land use as far back as on 12.01.1989.
They had applied for and were granted sanction of building plan by the gram
panchayat in the year 1991. No step was taken by the statutory authorities or
the appellant herein to notify a draft development plan. It was not notified
till 2000. No further step was taken pursuant thereto or in furtherance
thereof. Respondents filed an application before the Director for grant of
permission only on 2.12.2004 which was rejected by reason of an order
dated 14.12.2004 purported to be for the following reason:
"subjected land of village Bicholi Hapsi has been
included in the proposed Development Scheme No. 164
of Indore Development Authority."
71. We may notice two precise submissions of Mr. Venugopal at this
stage:
(i) The development plan includes draft development plan;
(ii) Existence of any draft development plan would authorise the
appellant \026 authority to declare its intention to prepare a town
development scheme at any time.
72. The draft development plan was published on 27.06.2003 although it
was sent for consideration of the State in terms of Section 19 of the Act on
9.10.2003. The same was returned to the appellant \026 authority stating that
plan to be prepared for the projected population in the year 2021 on or about
4.01.2005. A draft development plan 2021 was published only on
13.07.2007 whereas the declaration by the appellant \026 authority was notified
on 20.08.2004. Submission of Mr. Venugopal that a development plan
would include a draft development plan is sought to be made as the statute
has interchangeably used draft development plan, sanctioned development
plan as development plan and, secondly, on the strength of clause (iv) of
Sub-section (1) of Section 18 of the Act laying down that a notice shall be
issued thereunder containing inter alia the particulars, viz., the provisions for
enforcing the draft development plan and stating the manner in which
permission for development may be obtained.
73. We do not see any force in the said argument. It is possible to enforce
a draft development plan in a given case, but the statute must specifically
provide for the same. But, a draft development plan which has not attained
finality cannot be held to be determinative of the rights and obligations of
the parties and, thus, it can never be implemented. Section 50 of the Act
explicitly states that the authority may declare its intention to prepare a town
development scheme which having regard to Section 2(u) of the Act must be
read to mean declaration of its implementation to prepare a scheme for the
implementation of the provisions of a development plan.
74. We have come across some legislations, as for example, The
Himachal Pradesh Town and Country Planning Act, 1977 where a provision
has been made for preparation of an interim development plan. It is not in
dispute that legislations relating to town and country planning are somewhat
similar. Had the legislature thought of implementation of a draft
development plan, they could have also provided for an interim development
plan which ipso facto would have been enforceable.
75. A development plan even in ordinary parlance can be implemented
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only when it is final and not when it is at the draft stage, i.e., susceptible to
changes. Not only land use may make geographical change, the other details
may also undergo a change. The objections and suggestions invited from the
general public as also the persons affected may be accepted. There may be
realignment. It may undergo serious modifications. Once the legislature has
defined a term in the interpretation clause, it is not necessary for it to use the
same expression in other provisions of the Act. It is well-settled that
meaning assigned to a term as defined in the interpretation clause unless the
context otherwise requires should be given the same meaning.
76. It is also well-settled that in the absence of any context indicating a
contrary intention, the same meaning would be attached to the word used in
the later as is given to them in the earlier statute. It is trite that the words or
expression used in a statute before and after amendment should be given the
same meaning. It is a settled law that when the legislature uses the same
words in a similar connection, it is to be presumed that in the absence of any
context indicating a contrary intention, the same meaning should attach to
the words. [See Lenhon v. Gobson & Howes Ltd., (1919) AC 709 at 711,
Craies on Statute Law, Seventh Edition, page 141 and G.P. Singh’s
Principles of Statutory Interpretation, Tenth edition, page 278]
77. In Venkata Subamma and another v. Ramayya and others [AIR 1932
PC 92], it is stated that an Act should be interpreted having regard to its
history, and the meaning given to a word cannot be read in a different way
than what was interpreted in the earlier repealed section.
78. Land use, development plan and zonal plan provided for the plan at
macro level whereas the town planning scheme is at a micro level and, thus,
would be subject to development plan. It is, therefore, difficult to
comprehend that broad based macro level planning may not at all be in place
when a town planning scheme is prepared.
79. Once a final plan comes into force, steps inter alia are taken for
acquisition of the property. Section 34 of the Act takes care of such a
contingency. The town development scheme, as envisaged under Section 49
of the Act, specifically does it. Out of nine clauses contained in Section 49,
six relate to acquisition of land for different purposes. Clauses (v), (viii) and
(ix) only refer to undertaking of such buildings or construction of work by
the authority itself, reconstructions for the purpose of buildings, roads,
drains, sewage lines and the similar amenities and any other work of a nature
such as would bring about environmental improvements.
80. If the submission of Mr. Venugopal is accepted, a purpose which is
otherwise not contemplated under Chapter IV would be brought in by side
door in Chapter VII. It is well-settled that would cannot be done directly
cannot be permitted to be done indirectly.
81. The purpose of declaring the intent under Section 50(1) of the Act is
to implement a development plan. Section 53 of the Act freezing any other
development is an incidence arising consequent to the purpose, which
purpose is to implement a development plan. If the purpose of declaring
such an intention is merely to bring into play Section 53, and thereby freeze
all development, it would amount to exercise of the power of Section 50(1)
for a collateral purpose, i.e., freezing of development rather than
implementation of a development plan. The collateral purpose also will be
to indirectly get over the fact that an owner of land pending finalization of a
development plan has all attendant rights of ownership subject to the
restraints under Section 16. If the declaration of intent to formulate a town
development scheme is to get over Section 16 and freeze development
activities under Section 53, it would amount to exercise of power for a
collateral purpose.
82. A bare perusal of Sections 17 and 49 would show that it is the
development plan which determines the manner of usage of the land and the
town development scheme enumerates the manner in which such proposed
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usage can be implemented. It would follow that until the usage is
determined through a development plan, the stage of manner of
implementation of such proposed usage cannot be brought about. It would
also therefore follow that what is contemplated is the final development
plan and not a draft development plan, since until the development plan is
finalized it would have no statutory or legal force and the land use as
existing prior thereto with the rights of usage of the land arising therefrom
would continue.
83. To accept that it is open to the town development authority to declare
an intention to formulate a town development scheme even without a
development plan and ipso facto bring into play a freeze on usage of the land
under Section 53 would lead to complete misuse of powers and arbitrary
exercise thereof depriving the citizen of his right to use the land subject to
the permitted land use and laws relating to the manner of usage thereof.
This would be an unlawful deprivation of the citizen’s right to property
which right includes within it the right to use the property in accordance
with the law as it stands at such time. To illustrate the absurdity to which
such an interpretation could lead it would then become open to the town
development authority to notify an intent to formulate a town development
scheme even in the absence of a development plan, freeze all usage of the
property by a owner thereof by virtue of Section 53 of the Act, and should
no development plan be finalized within 3 years, such scheme would lapse
and the authority thereupon would merely notify a fresh intent to formulate a
town development scheme and once again freeze the usage of the land for
another three years and continue the same ad infinitum thereby in effect
completely depriving the citizen of the right to use his property which was in
a manner otherwise permitted under law as it stands.
84. The essence of planning in the Act is the existence of a development
plan. It is a development plan, which under Section 17 will indicate the
areas and zones, the users, the open spaces, the institutions and offices, the
special purposes, etc. Town planning would be based on the contents of the
development plan. It is only when the development plan is in existence, can
a town planning scheme be framed. In fact, unless it is known as to what the
contents of a possible town planning scheme would be, or alternatively,
whether in terms of the development plan such a scheme at all is required,
the intention to frame the scheme cannot be notified.
85. Section 50 of the Act no doubt uses the word "at any time". The
question, however, is what that would imply. The town planning scheme, it
would bear repetition to state, is made for the purpose of implementation of
a development plan. Ordinarily, therefore, it would envisage the time period
for coming into force of the development plan and the expiry thereof.
Unless such a construction is to be given to the words "at any time", it
would lead to manifest injustice and absurdity which is not contemplated by
the statute. For giving an effective meaning to the provisions of Section 50
of the Act, the same is required to be read in the context of other provisions
of the statute and in particular the interpretation clauses which we have
noticed hereinbefore.
86. Section 50(1) of the Act provide for declaration of this intention to
prepare town development scheme "at any time". The words "at any time"
do not confer upon any statutory authority an unfettered discretion to frame
the town development scheme whenever it is so pleases. The words "at any
time" are not charter for the exercise of an arbitrary decision as and when a
scheme has to be framed. The words "at any time" have no exemption from
all forms of limitation for unexplained and undue delay. Such an
interpretation would not only result in the destruction of citizens’ rights but
would also go contrary to the entire context in which the power has been
given to the authority.
87. The words "at any time" have to be interpreted in the context in which
they are used. Since a town development scheme in the context of the Act is
intended to implement the development plan, the declaration of intention to
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prepare a scheme can only be in the context of a development plan. The
starting point of the declaration of the intention has to be upon the
notification of development plan and the outer limit for the authority to
frame such a scheme upon lapsing of the plan. That is the plausible
interpretation of the words "at any time" used in Section 50(1) of the Act.
[See State of H.P. & Ors. v. Rajkumar Brijender Singh & Ors., (2004) 10
SCC 585]
88. For construing a statute of this nature, we are dealing with, rule of
purposive construction has to be applied.
89. In Francis Bennion’s Statutory Interpretation, purposive construction
has been described as under :
"A purposive construction of an enactment is one which
gives effect to the legislative purpose by\027
(a) following the literal meaning of the enactment where
that meaning is in accordance with the legislative
purpose (in this Code called a purposive-and-literal
construction), or
(b) applying a strained meaning where the literal
meaning is not in accordance with the legislative purpose
(in the Code called a purposive-and-strained
construction)."
[See also Bombay Dyeing and Mfg. Co. Ltd. v. Bombay Environmental
Action Group and Ors., (2006) 3 SCC 434 and National Insurance Co. Ltd.
v. Laxmi Narain Dhut, 2007 (4) SCALE 36]
90. In Maruti Udyog Ltd. v. Ram Lal and Others [(2005) 2 SCC 638],
while interpreting the provisions of Industrial Disputes Act, 1947, the rule of
purposive construction was followed.
91. In Reserve Bank of India v. Peerless General Finance and Investment
Co. Ltd. [(1987) 1 SCC 424] this Court stated:
"\005If a statute is looked at, in the context of its
enactment, with the glasses of the statute-maker,
provided by such context, its scheme, the sections,
clauses, phrases and words may take colour and appear
different than when the statute is looked at without the
glasses provided by the context. With these glasses we
must look at the Act as a whole and discover what each
section, each clause, each phrase and each word is meant
and designed to say as to fit into the scheme of the entire
Act\005"
92. In ’The Interpretation and Application of Statutes’ by Reed
Dickerson, the author at p.135 has discussed the subject while dealing with
the importance of context of the statute in the following terms:
"... The essence of the language is to reflect, express, and
perhaps even affect the conceptual matrix of established
ideas and values that identifies the culture to which it
belongs. For this reason, language has been called
"conceptual map of human experience".’
[See also High Court of Gujarat v. Gujarat Kishan Mazdoor Panchayat,
(2003) 4 SCC 712, Indian Handicrafts Emporium and Others v. Union of
India and Others, (2003) 7 SCC 589 and Deepal Girishbhai Soni and Others
v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385, para 56]
Delegation :
93. An area conceived of under the Act, as noticed hereinbefore, consists
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of both plan area and non-plan area. Development of plan area may be in
phases. A master plan may be followed by a zonal plan and a zonal plan
may be followed by a town development scheme.
94. The limit of Indore planning area was specified by a notification dated
13.02.1974 in terms of Sub-section (1) of Section 13 of the Act. Appellant \026
Authority was constituted by the State of Madhya Pradesh in exercise of its
power under Section 38(1) of the Act for the area comprised within the
Indore planning as specified in the notification dated 13.02.1974. The State
in exercise of its jurisdiction under Sub-section (1) of Section 75 of the Act
delegated its power conferred upon it under Sections 13 and 47A of the Act
upon the District Planning Committee. No power under Section 38 was
delegated. The District Planning Committee exercises its jurisdiction
pursuant to the said delegation in terms of a notification dated 13.11.2000
extending the Indore Development Planning Area to 152 villages. The
villages Bicholi and Kanadia were not included in the notification dated
12.08.1977. They were included only in the notification issued by the
District Planning Committee.
95. The District Planning Committee, however, issued another
notification amending the planning area to 90 villages only and deleting 62
villages from its earlier notification.
96. There cannot be any doubt whatsoever that even a delegatee exercises
its power relying on or on the basis of its power conferred upon it by the
delegator, its act would be deemed to be that of the principal as has been
held by this Court in State of Orissa and Others v. Commissioner of Land
Records and Settlement,Cuttack and Others [(1998) 7 SCC 162], this Court
held:
"25. We have to note that the Commissioner when he
exercises power of the Board delegated to him under
Section 33 of the Settlement Act, 1958, the order passed
by him is to be treated as an order of the Board of
Revenue and not as that of the Commissioner in his
capacity as Commissioner. This position is clear from
two rulings of this Court to which we shall presently
refer. The first of the said rulings is the one decided by
the Constitution Bench of this Court in Roop Chand v.
State of Punjab 3 . In that case, it was held by the
majority that where the State Government had, under
Section 41(1) of the East Punjab Holdings (Consolidation
and Prevention of Fragmentation) Act, 1948, delegated
its appellate powers vested in it under Section 21(4) to an
"officer", an order passed by such an officer was an order
passed by the State Government itself and "not an order
passed by any officer under this Act" within Section 42
and was not revisable by the State Government. It was
pointed out that for the purpose of exercise of powers of
revision by the State under Section 42 of that Act, the
order sought to be revised must be an order passed by an
officer in his own right and not as a delegate of the State.
The State Government was, therefore, not entitled under
Section 42 to call for the records of the case which was
disposed of by an officer acting as its delegate."
97. Whether issuance of notification by the delegatee would automatically
extend the jurisdiction of the appellant is the question. Before we consider
the legal issues involved, we may notice that the appellant filed an
application before the High Court wherein it was stated:
"2. The respondent no. 2 submits that though in 2004
itself the State Government had in principle agreed to
extend the area of the Indore Development Authority u/s
38 of the Adhiniyam, the said decision could not be
implemented because of certain procedural and other
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difficulties. Subsequently, when the respondent no. 2
took up the matter with the State Government, it insisted
that in the absence of a formal request from the IDA it
could not extend its area u/s 38 of the Adhiniyam.
Accordingly, the respondent no. 2 had submitted its
formal request by its aforesaid letter dated 14/10/2005."
98. The State, it is interesting to note, took a similar plea when the
appellant \026 authority sought permission for new Transport Nagar Scheme on
265 hectares of land situated in village Mundrla Nayata by its letter dated
23.08.2005 stating:
"Please refer the reference letter by which the Indore
Development Authority sought permission for new
Transport Nagar Scheme on 265 hectares of land situated
in village Mundrla Nayata.
(1) In this regard opinion of law department has been
received and as per that in the year 1977 the areas of
Indore Development Authority was prescribed whereas
the questioned scheme is failing beyond the prescribed
operational area.
(2) Although as per letter dated 28th June, 2002, the
planning area of Indore city is extended but the
operational area of Indore Development Authority has
not been extended. At present, Indore Development
Plan, 1991 is in force and new Development Plan is
being prepared.
(3) Thus, the Indore Development Authority is not
competent to declare "Town Development Scheme"
beyond its prescribed operational area."
99. Yet again, the State in exercise of its power under Section 38(1) of the
Act notified planning area confirming to the one identified by the District
Planning Committee in terms of its notification dated 28.10.2005.
How State understood it :
100. Application of the principle of executive construction would lead to a
conclusion that the State and the appellant themselves proceeded on the
basis that in terms of the notification issued by the District Planning
Committee, the area of operation of the appellant was not extended.
101. In G.P. Singh’s ’Principles of Statutory Interpretation, 10th Edn. at p.
319, it is stated :
"But a uniform and consistent departmental practice
arising out of construction placed upon an ambiguous
statute by the highest executive officers at or near the time
of its enactment and continuing for a long period of time is
an admissible aid to the proper construction of the statute
by the Court and would not be disregarded except for
cogent reasons. The controlling effect of this aid which is
known as ’executive construction’ would depend upon
various factors such as the length of time for which it is
followed, the nature of rights and property affected by it,
the injustice result from its departure and the approval that
it has received in judicial decisions or in legislation.
Relying upon this principle, the Supreme Court in
Ajay Gandhi v. B. Singh having regard to the fact that the
President of the Income Tax Appellate Tribunal had been
from its inception in 1941 exercising the power of transfer
of the members of the Tribunal to the places where
Benches of the Tribunal were functioning, held construing
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sections 251(1) and 255(5) of the Income Tax Act that the
President under these provisions has the requisite power of
transfer and posting of its members. The court observed :
"For construction of a statute, it is trite, the actual practice
may be taken into consideration."
Contemporary official statements throwing light on
the construction of a statute and statutory instruments
made under it have been used as contemporanea expositio
to interpret not only ancient but even recent statute both in
England and India."
[See also S.B. Bhattacharjee v. S.D. Majumdar & Ors., Civil Appeal arising
out of S.L.P. (Civil) No. 3413 of 2006, disposed of today].
Exercise of delegated power \026 effect of :
102. The State exercises its different power for different purposes. Issuing
notification of a planning area, whether named or not, for the purpose of
Section 13(1) is different from the one for which a development authority is
created within the meaning of Section 38(1) of the Act. The State in a given
situation may appoint more than one authority for the same planned area.
The State delegated its power upon the District Planning Authority under
Section 38 of the Act. The appellant \026 authority was created for a definite
purpose. Its jurisdiction was limited to the area notified. When so creating,
although 1974 notification was referred to, the same was only for the
purpose of limiting the area of operation of the appellant \026 authority. The
principle of legislation by incorporation was applied and not the principle of
legislation by reference.
103. The difference between the two principles is well-known. Whereas in
the case of the former, a further notification amending the ambit or scope of
the statute would be necessary, if the statute incorporated by reference is
amended, in the latter it would not be necessary.
104. In Rakesh Vij v. Dr. Raminder Pal Singh Sethi and Ors. [AIR 2005
SC 3593], this Court observed:
"9. Adopting or applying an earlier or existing Act by
competent Legislature to a later Act is an accepted device
of Legislation. If the adopting Act refers to certain
provisions of an earlier existing Act, it is known as
legislation by reference. Whereas if the provisions of
another Act are bodily lifted and incorporated in the Act,
then it is known as legislation by incorporation. The
determination whether a legislation was by way of
incorporation or reference is more a matter of
construction by the courts keeping in view the language
employed by the Act, the purpose of referring or
incorporating provisions of an existing Act and the effect
of it on the day-to-day working. Reason for it is the
courts’ prime duty to assume that any law made by the
Legislature is enacted to serve public purpose.."
105. It is furthermore a well-settled principle of law that a delegatee must
exercise its jurisdiction within the four-corners of its delegation. If it could
not exercise its delegated power for the purpose of creation of the appellant
authority or extended its jurisdiction, in our opinion, it cannot be done by
amendment of a notification issued under Section 13(1) of the Act.
106. We may at this juncture notice the effect of the notifications issued by
the authority :
? It is a matter of record that the notification issued on
13.02.1974 under Section 13 notifying the planning area, did
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not include land of Respondent No. 1.
? It is also a matter of record that the Indore Development Plan,
1991 notified in 1975 does not admittedly include the village in
which the land of Respondent No. 1 is situate.
? The notification issued under Section 38(1) of the Act on
09.05.1977 is also limited to the area specified in the
notification dated 13.02.1974 and admittedly does not include
the land of Respondent No. 1.
107. Admittedly, the villages in question had been included by the State in
its notification issued on 28.10.2005. Prior thereto, the said villages having
not been included within the area of operation of the appellant authority, any
action taken either by way of its intention to frame a town planning scheme
or otherwise shall be wholly illegal and without jurisdiction. It would render
its act in relation to the said villages a nullity.
108. It is, therefore, difficult for us to accept the submission of Mr.
Venugopal and Mr. Gambhir that the notification dated 13.11.2000
subsumes in the notification dated 12.08.1977.
109. For the reasons aforementioned, we do not have any other option but
to uphold the impugned judgment of the High Court.
110. We may, however, observe that several other contentions, as noticed
hereinbefore, have been raised before us but we do not find any necessity to
go thereinto.
Should we issue Mandamus ?
111. Before parting, however, we must notice a submission of Mr. C.A.
Sundaram, learned counsel appearing on behalf of the respondents, to the
effect that the High Court committed a manifest error insofar as it limited its
direction only to the following:
"\005The impugned order dated 17.5.2006 of the learned
Single Judge in W.P. No. 4 of 2005 is set aside and the
notification dated 24.8.2004 of the Indore Development
Authority insofar as it applies to village Bicholi Hapsi
and the communication of the Joint Director, Town and
Country Planning, Indore to the appellant that he cannot
approve the plan for construction of the house of the
appellant because of the publication of the Draft Scheme
No. 164 U/s. 50(2) of the Adhiniyam are quashed and the
Director is directed to reconsider the application of the
petitioner for permission to undertake construction of the
house in accordance with the provisions of the
Adhiniyam and the observations in this judgment\005"
112. The learned counsel would submit that the said direction is not correct
as the High Court should have directed the Director to consider the
respondents’ application in accordance with the law as it existed at the
relevant point of time. We do not subscribe to the said view as it is now
well-known that that where a statute provides for a right, but enforcement
thereof is in several stages, unless and until the conditions precedent laid
down therein are satisfied, no right can be said to have been vested in the
person concerned.
113. In Director of Public Works v. Ho Po Sang [1961 AC 901 : (1961) 2
All ER 721], the Privy Council considered the said question having regard to
the repealing provisions of the Landlord and Tenant Ordinance, 1947 as
amended on 9-4-1957. It was held that having regard to the repeal of
Sections 3-A to 3-E, when applications remained pending, no accrued or
vested right was derived stating:
"In summary, the application of the second appellant for
a rebuilding certificate conferred no right on him which
was preserved after the repeal of Sections 3-A to 3-E, but
merely conferred hope or expectation that the Governor-
in-Council would exercise his executive or ministerial
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discretion in his favour and the first appellant would
thereafter issue a certificate. Similarly, the issue by the
first appellant of notice of intention to grant a rebuilding
certificate conferred no right on the second appellant
which was preserved after the repeal, but merely
instituted a procedure whereby the matter could be
referred to the Governor-in-Council. The repeal
disentitled the first appellant from thereafter issuing any
rebuilding certificate where the matter had been referred
by petition to the Governor-in-Council but had not been
determined by the Governor."
[See also Lakshmi Amma v. Devassy [1970 KLT 204]
114. The question again came up for consideration in Howrah Municipal
Corpn. v. Ganges Rope Co. Ltd. [(2004) 1 SCC 663], wherein this Court
categorically held :
"The context in which the respondent Company
claims a vested right for sanction and which has been
accepted by the Division Bench of the High Court, is
not a right in relation to ownership or possession of any
property for which the expression vest is generally
used. What we can understand from the claim of a
vested right set up by the respondent Company is that
on the basis of the Building Rules, as applicable to their
case on the date of making an application for sanction
and the fixed period allotted by the Court for its
consideration, it had a legitimate or settled expectation
to obtain the sanction. In our considered opinion, such
settled expectation, if any, did not create any vested
right to obtain sanction. True it is, that the respondent
Company which can have no control over the manner
of processing of application for sanction by the
Corporation cannot be blamed for delay but during
pendency of its application for sanction, if the State
Government, in exercise of its rule-making power,
amended the Building Rules and imposed restrictions
on the heights of buildings on G.T. Road and other
wards, such settled expectation has been rendered
impossible of fulfilment due to change in law. The
claim based on the alleged vested right or settled
expectation cannot be set up against statutory
provisions which were brought into force by the State
Government by amending the Building Rules and not
by the Corporation against whom such vested right or
settled expectation is being sought to be enforced. The
vested right or settled expectation has been nullified not
only by the Corporation but also by the State by
amending the Building Rules. Besides this, such a
settled expectation or the so-called vested right cannot
be countenanced against public interest and
convenience which are sought to be served by
amendment of the Building Rules and the resolution of
the Corporation issued thereupon."
115. In Union of India v. Indian Charge Chrome [(1999) 7 SCC 314], yet
again this Court emphasized :
"The application has to be decided in accordance
with the law applicable on the date on which the
authority granting the registration is called upon to apply
its mind to the prayer for registration."
116. In S.B. International Ltd. v. Asstt. Director General of Foreign Trade
[(1996) 2 SCC 439], this Court repelled a contention that the authorities
cannot take advantage of their own wrong viz. delay in issuing the advance
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licence, stating :
"We have mentioned hereinbefore that issuance of
these licences is not a formality nor a mere ministerial
function but that it requires due verification and
formation of satisfaction as to compliance with all the
relevant provisions."
[See also Kuldeep Singh v. Govt. NCT of Delhi [(2006) 5 SCC 702]
117. For the reasons aforementioned, there is no merit in these appeals
which are dismissed accordingly. There shall, however, be no order as to
costs.