Whether town planning scheme are subservient to development plan/zonal plan?

The legal contention urged on behalf of the respondents that
a town development scheme can be framed pursuant to the
development plan without there being a zonal plan, is not sustainable.
The learned Senior Counsel, Ms Pinky Anand and Mr Prashant Desai
on behalf of the respondents relied upon the Act pari materia for the
State of Gujarat where the Town Planning Act does not contemplate a
zonal plan, and which contemplates “DP-TP”.
There is no dispute with the law laid down by this Court and town planning
scheme has to be subservient to development plan/zonal plan. Development plan
which does not require micro planning is binding and can be implemented.
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11307 OF 2016
[Arising out of SLP [C] No.30998 of 2010]
Ravindra Ramchandra Waghmare 
Vs.
Indore Municipal Corporation & Or
Dated:November 29, 2016. 


2. The appeals arise out of judgment and order dated 9.5.2016 passed by the
High Court of Madhya Pradesh at Jabalpur and as against order dated 30.9.2010
passed by the Division Bench of the High Court of Madhya Pradesh at Indore
thereby affirming the judgment and order passed by the learned Single Judge.
3. The matter arises out of Bhopal Municipal Corporation and Indore
Municipal Corporation. The action taken by the Municipal Corporations of Bhopal
and Indore under section 305 of Madhya Pradesh Municipal Corporation Act, 1956
(hereinafter referred to as ‘the Act of 1956’) has been questioned. The Single
Bench at Jabalpur had allowed the writ application and held that the land be
acquired under the provisions of the Act of 2013. Aggrieved thereby, writ appeals
were filed by Bhopal Municipal Corporation which have been allowed by the
impugned judgment and order dated 9.5.2016 by a Division Bench of the High
Court of M.P.
4. With respect to Bhopal the facts are being narrated from the matter
in-between A.K. Pali & Ors. v. State of M.P. & Ors. The State Government through
Municipal Corporation, Bhopal as a nodal agency decided to develop Bus Rapid
Transit System Corridor (for short ‘BRTS corridor’) on the stretch of around 8
kms. As per Bhopal Development Plan, 2005 which was notified in the year 1995,
the proposed width of the road is 66 mtrs. Initially, the writ petitions were filed by
the appellants before a Single Bench in the year 2014 questioning the actionPage 3
3
initiated by the Municipal Corporation on the ground that such an action was
impermissible under the provisions of section 305 of the Act of 1956. At that time
the width of the road was 54 mtrs. The appellants’ main submission was that they
had obtained the permission from the Municipal Corporation so as to raise
construction. For acquisition of the land, the provisions contained in the Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 (hereinafter referred to as ‘the Act of 2013’) ought to have
been resorted to.
5. Under the Jawaharlal Nehru National Urban Renewal Mission, the Central
Government had sanctioned the scheme called BRTS corridor for improvement of
public transport system at Bhopal in order to avoid hazardous traffic. The Central
Sanctioning & Monitoring Committee was constituted by the Ministry of Urban
Development which had sanctioned a sum of Rs.357.20 crores for implementation
of said scheme. After due sanction by the Committee, NHAI entered into an
agreement with Municipal Corporation, Bhopal on 22.9.2009 and handed over
particular part of land to it for the purpose of BRTS corridor. For betterment of
public transport system 225 low floor buses were also sanctioned by Sanctioning
and Monitoring Committee of the Central Government. For BRTS corridor survey
was undertaken by the Expert Committee of the Central Government namely
Urban Mass Transit Council of Bhopal City. Plan was duly approved by the StatePage 4
4
Government and the routes were notified as per Plan by the State Transport
Authority. Presently only 1.25 lakh passengers are getting the services of low floor
buses. It is not in dispute that most of the BRTS corridor has been constructed and
the route from Misrod to Bairagarh is under operation. Buses are plying
continuously. The appellants are land-holders in-between Misroad to Ampree
Chouraha. The Master Plan was prepared under the provisions of M.P. Nagar Tatha
Gram Nivesh Adhiniyam, 1973 (Town & Country Planning Act) hereinafter
referred to as ‘the Act of 1973’. The Development Plan/Master Plan was prepared
as per the provisions of section 18 after inviting objections, suggestions. None of
the appellants had raised objection when the development plan was prepared. It
was finalized and published as per provisions contained in section 19(4).
6. The development permission was granted by the competent authority under
the Act of 1973 as per the provisions contained in section 13(1)(b) and Rule 21(1)
framed under the Bhopal Vikas Adhiniyam, 1984 since repealed with effect from
April, 2012. The appellants have raised the construction of their building as per the
conditions mentioned in the map sanctioned by the authority under the Act of
1973. They were required to keep the land for widening of road in question.
Accordingly, the landowners submitted their lay-out leaving requisite land from the
centre of the road for widening of road. On that basis Municipal CorporationPage 5
5
had granted permission to appellants. They were aware of the proposed width of
the road.
7. The appellants at the stage of the final hearing of writ appeals before the
High Court filed fresh writ petition/amended writ petition for questioning the vires
of the provisions contained in sections 305 and 306 of the Act of 1956. It was
averred that there is no provision under the Act of 1973 of vesting of land on
publication of Master Plan/Development Plan, particularly the land belonging to
private landowners. The acquisition has to be made under the provisions contained
in sections 8, 11 and 16 of the Act of 2013. State Government has no power to
reduce quantum of compensation prescribed under the Act of 2013. Sections 305
and 306 of the Act of 1956 are unconstitutional as they provide automatic vesting
of land without payment of reasonable compensation. The Act of 1956 fails to
provide appropriate compensation equivalent to that offered under the Act of 2013.
The provisions contained in sections 305 and 306 are violative of Article 14. The
provisions contained in sections 305 and 306 have become redundant due to the
provisions contained in the Act of 2013. It was submitted that the Corporation is
required to acquire the land for widening the streets as per the provisions contained
in sections 78 and 79 of the Act of 1956. Thus recourse to section 305 of the Act of
1956 is not permissible for divesting the owner of his right to ownership and that
too without payment of compensation. Adoption of onerous and oppressivePage 6
6
provision would be illegal and arbitrary. The provision contained in section 305 is
more onerous and harsh as compared to the procedure laid down under section 56
of the Act of 1973. It was also submitted that in some of nearby areas the land is
being acquired for link road under the Act of 2013 whereas appellants are being
discriminated with. Two different processes of acquisition under different Acts
cannot be resorted to. It was also submitted that the provision contained in section
306 fails to provide rational, reasonable principle for determination of
compensation for deprivation of property of landowner. Right to property is
recognized under section 300A and delayed payment of compensation leads to
deprivation of property without reasonable process. Section 306 does not provide
as to the time period within which compensation to be paid. Consequently, same is
violative of Articles 14, 19 and 300A of the Constitution. It was submitted that the
provisions contained in section 306 be read down by incorporating the provisions
of the Act of 2013 in the light of principles enshrined therein while correlating it
with the provisions of section 387 of the Act of 1956. It was also submitted that
within the ken of section 305 of the Act of 1956, Corporation has no right to enter
and remove any part of the structure falling within building line.
8. In the cases arising from the Indore Bench vires of the provisions of sections
305 and 306 of Act of 1956 have not been questioned. In Indore also BRTS
corridor is being undertaken at the cost of Rs.868 crores. Same is being executedPage 7
7
through the nodal agency of Indore Development Authority. State Government has
granted approval to the project as a Town Development Scheme under section
49(ix) of the Act of 1973. As per appellants BRTS corridor is being undertaken on
a portion of Agra Bombay Road (AB Road). It was described as Major City Road
in the development plan, 1991 which was prepared and notified in the year 1975.
At the relevant time AB Road/MR-I was proposed to be as 40-50 mtrs. At the same
time it was provided that for future the width of said road would be 60 to 75
meters. It was in conformity with the Master Plan of 1991; in the Master Plan of
2021 the width of the road is kept 60 meters. On 26.5.2007 a notice was issued for
demolition of certain structure for the purpose of widening of road. On 1.1.2008
Master Plan, 2021 had been notified in which AB Road has been proposed as 60 to
75 meters. It was also pointed out that now a separate bye-pass road has been taken
out for AB Road. Thus the road in question forms part of the Major City Road that
is MR-I, width of which has to be 60 meters. Most of the corridor has been
constructed except in some portion of the appellants. Development plan is binding
upon the authorities as well as the Corporation. As such, action has been rightly
taken under section 305 of the Act of 1956. Sections 305 and 306 provide for
reasonable compensation and when it is not accepted, recourse can be had to the
provisions contained in section 387 of the Act of 1956 which provides for
determination of compensation by the arbitrators/court on the basis of procedurePage 8
8
laid down in the Land Acquisition Act, 1894. As soon as Master Plan/Development
Plan is finalized and published there is restriction upon the owner to raise any
construction in contravention of the plan and the Corporation is given the right to
remove any structure which is falling within the line of the existing public street or
to be constructed in future. The provisions subserve the public interest and
widening of the road is necessary for development of rapid transport system. The
procedure prescribed with respect to public street is contained in section 305. Same
cannot be said to be illegal or arbitrary in any manner as reasonable compensation
is offered which may include FAR in appropriate cases and the provisions of the
Land Acquisition Act are also applicable as provided under section 387. Thus the
provisions cannot be said to be violative of Articles 14, 19, 21 and 300A of the
Constitution of India. The action taken falls within the purview of section 305 of
the Act of 1956.
9. On behalf of the appellants it was submitted by learned senior counsel that
the provisions contained in section 305 of the Act of 1956 are repugnant to the
provisions contained in the Act of 2013. Compensation is not offered before taking
possession. The provisions contained in section 305 of the Act of 1956 is violative
of the protection conferred under Articles 14, 19, 21 and 300A of the Constitution
and repugnant to the provisions contained in section 56 of the Act of 1973. It was
also contended that on proper interpretation of the provisions contained in sectionPage 9
9
305, the Corporation has no right to remove greater portion of the building or
material portion of the projecting part unless it has been taken down or burned
down or has fallen down. On notice, it is to be voluntarily removed by the owner
thereof. The Corporation can only remove the projecting part which is external to
the main building as verandah, step or some other structure. The acquisition
proceedings have to be necessarily resorted to under the provisions contained in
sections 78 and 79 of the Act of 1956. Corporation has no right to enter forcibly to
remove the structure. It was also submitted that without preparation of a town
development scheme as envisaged under section 49 read with section 50 of the Act
of 1973, it is not permissible to carry out the provisions contained in the
development plan.
10. On the other hand it was submitted by learned senior counsel for the
respondents that the action taken is in accordance with the development plan which
is binding. The provisions under section 305 cannot be said to be ultra vires. The
same provide for reasonable compensation. On proper interpretation of section 305
of the Act of 1956 the action of the Corporation is within its ken. It is not
necessary to acquire the land. Corporation has power to remove structure which
projects beyond the regular line of public street. The maxims Generalia
specialibus non derogant and Generalibus specialia derogant have been pressed
into service to contend that if a special provision is made on a certain matter, thatPage 10
10
matter is excluded from the general provision. The scheme of the Act of 1973 has
been pointed out so as to explain the procedure how regional plan, development
plan and town development schemes are prepared. It is not necessary to have
recourse to section 56 of the Act of 1973 or sections 78 and 79 of the Act of 1956
for acquisition of land.
11. Before dilating upon the rival contentions it is necessary to take note of the
various statutory provisions.
In re : Provisions of the Act of 1956 :
12. Section 5(45) of the Act of 1956 defines ‘private street’; section 5(49)
defines ‘public street’; section 5(55) defines ‘street’. The provisions contained in
sections 5(45), 5(49) and 5(55) are extracted below :
“Section 5(45) “private street” means a street which is not a public
street;
Section 5(49) “public street” means any street –
(a) Over which the public have a right of way; or
(b)Which have been heretofore leveled, paved, metalled, asphalted,
channeled, sewered or repaired out of municipal or other public
funds; or
(c) Which under the provisions of this Act becomes a public street;
And includes –
(i) The roadway over any public bridge or causeway;
(ii) The footway attached to any such street;
(iii) Public bridge or causeway, and the drains attached to any such
street, public bridge or causeway;Page 11
11
Section 5(55) “street” means any road, foot-way, square, court alley
or passage, accessible, whether permanently or temporarily to the
public, whether a thoroughfare or not;
and shall include every vacant space, notwithstanding that it may be
private property and partly or wholly obstructed by any gate, post
chain or other barrier, if houses, shops or other buildings about
thereon, and if it is used by any persons as means of access to or from
any public place or thoroughfare, whether such persons be occupiers
of such buildings or not;
but shall not include any part of such space which the occupier of any
such building has a right at all hours to prevent all other persons from
using as aforesaid;
and shall include also the drains on either side and the land whether
covered or not by any pavement, verandah or other erection, which
lies on either side of the roadway up to the boundaries of the adjacent
property, whether that property be private property or property
reserved by Government or by the Corporation for any purpose other
than a street;”
Section 330 of the Act of 1956 deals with conversion of streets into public
streets. Section 330(1) requires the Commissioner to declare the same to be public
streets in exigencies specified therein. Section 330(2) empowers the Commissioner
to declare street or part of a street not maintained by Corporation to declare the
same to be a public street. The decision has to be taken after inviting objections
and appeal can be preferred against such a decision as provided in section 330(3).
Section 330 is extracted hereunder :
“330. Power to declare streets, when metalled, etc. public streets –
(1) When any street has been levelled, metalled, tarred or asphalted,Page 12
12
paved, made good, lighted, drained, chanelled and flagged to the
satisfaction of the Commissioner, he shall, if so required by the
persons liable for the greater part of the expenditure on such street by
notice put up in any part of such street, declare the same to be a public
street. The said street shall thereupon become a public street.
(2) The Commissioner may, at any time by a notice exhibited in any
street or part of a street not maintained by the Corporation, give
intimation of his intention to declare the same a public street, and,
unless within one month next after such notice is first exhibited the
owner or the majority of owners of such street or such part of street,
lodges or lodge objections thereto with the Corporation, the
Commissioner may by a notice exhibited in such street or part, declare
the same to be a public street vested in the Corporation.
(3) Any person aggrieved by a notice under sub-section (2) may
appeal within thirty days from the date of notice is first exhibited, to
the District Court who shall give a reasonable opportunity of being
heard to the appellant and the Corporation.
(4) The provisions of Parts II and III of the Indian Limitation Act,
1908 relating to appeals shall apply to every appeal preferred under
this section.”
13. Section 78 deals with acquisition of immovable property or easement by
agreement. Section 79 deals with the procedure when it is not possible to acquire
property or easement by agreement. A Corporation has the power under Part V
with respect to public health, safety and convenience. Chapter XIII deals with
public convenience, Chapter XIV - conservancy, Chapter XV – sanitary
provisions, Chapter XVI - water-supply, Chapter XVII – general provisions with
reference to drainage, water supply and water and other mains, Chapter XVIII with
public health and safety, Chapter XIX with markets and slaughter places, ChapterPage 13
13
XX – food, drink, drug and dangerous articles, Chapter XXI - restraint of infection;
Chapter XXII - disposal of the dead. Part VI relates to lands, buildings and streets.
Chapter XXIII deals with town planning. Section 291 mandates for town planning
scheme. Section 292 contains the restriction on Corporation’s power to undertake
town planning scheme when any scheme under the Town Improvement Act has
been formed for the area in question. Colonisation is dealt with in Chapter
XXIII-A. Chapter XXIV deals with building control under the provisions of
section 293. There is restriction on construction without permission. Under section
295 Commissioner has the power to refuse erection or re-erection of buildings.
Section 296 contains the provision as to grounds on which site of proposed
building may be disapproved. Section 297 deals with the grounds on which
permission to erect or re-erect building may be refused. Section 299 confers the
power upon the Commissioner to direct modification of a sanctioned plan of a
building before its completion. Under section 299A State Government has the
power to cancel or revise permission for construction of a building. Section 300
mandates for lapse of sanction after one year from the date of such sanction.
Section 302 confers power upon the Commissioner to stop construction unlawfully
commenced. Section 303 confers power upon the Commissioner to direct removal
of person from a building in which works are unlawfully carried on or which are
unlawfully occupied. Erection and use of temporary building is to be approved byPage 14
14
Commissioner as provided under section 304. Under Section 305, Corporation has
the power to regulate line of buildings. Section 306 deals with compensation to be
paid. With respect to dangerous and insanitary buildings, the Corporation has the
power from sections 309 to 316. With respect to public streets, Corporation has the
power under Chapter XXVI contained in sections 317 to 331. Section 322 prohibits
all obstruction in streets. Section 323 ensures streets not to be opened or broken up.
Section 318 provides for prohibition of projection upon streets. It is apparent that
ample and widest power has been conferred under the Act of 1956 upon the local
authorities in such matters in public interest.
In re : Provisions of the Act of 1973 :
14. Provisions contained in the Act of 1973 are also required to be taken note of
along with the provisions contained in the Town Improvement Act which has a
reference in the Act of 1956 in section 292 thereof.
Under the Act of 1973, section 2(g) defines development plan includes a
zoning plan. It defines ‘local authority’ to mean a Municipal Corporation
constituted by the Act of 1956, Municipal Council or Nagar Panchayat constituted
by or under the M.P. Municipalities Act, 1961 etc. Planning area, regional plan,
town development scheme and zone have been defined in section 2(o), 2(q), 2(u)
and 2(w) of Act of 1973 respectively. Same are extracted hereunder :Page 15
15
“Section 2(o) “planning area” means any area declared to
be a planning area under this Act and [non-planning area shall
be construed accordingly];
Section 2(q) “regional plan” means a plan for the region
prepared under this Act, and approved by the State
Government;
Section 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”;
Section 2(w) “zone” means any section of a planning
area for which, under the development plan, a detailed zoning
plan is prepared;”
15. Regional planning is dealt with in Chapter III. State Government has the
power to declare any area in the State to be a region for the purposes of the Act.
Director is empowered to prepare regional plan under section 5. Section 7 provides
for contents thereof. Section 8 provides for preparation of the same. Under section
8, objections and suggestions are invited then Director has to consider them as per
section 8(2), afford a reasonable opportunity to all the persons affected thereby of
being heard then the State Government may finalise the regional plan with or
without modifications. Proviso to sub-section (2) of section 9 mandates that in case
the State Government modifies the draft regional plan in that case State
Government has to publish the same in the Gazette, invite objections and
suggestions on the modifications proposed and after giving reasonable opportunity
of being heard, has to finalise it. Section 10 of the Act of 1973 provides that asPage 16
16
soon as draft plan is published, no person, authority or department of the
Government or any other person shall change the use of land for any purpose other
than agriculture or carry out any development in respect of any land contrary to the
provisions of the draft plan, without the prior approval of the Director or an officer
not below the rank of a Deputy Director. Section 10(3) provides that in case any
work is carried out in contravention of the provisions of the section, the
Corporation or other local authority or the Collector in areas outside such local
areas of the authority may cause such work to be removed or demolished at the
cost of the defaulter which shall be recovered from him as an arrear of land
revenue. Removal or demolition is contemplated after notice and hearing. Section
11 of the Act of 1973 deals with exclusion from claims of compensation in certain
cases. If compensation in respect of such demolition has already been paid under
any other law, the owner shall not be entitled to any compensation by reason of the
restrictions under the Act.
16. Chapter IV of the Act of 1973 deals with the planning areas and fresh
development plan. As per section 13 thereof, State Government has to issue a
notification for constituting planning areas and it can alter, amalgamate or divide
the area. Section 13(3) provides that once notification under section 13(1) of the
Act of 1973 has been issued a Corporation under the Act of 1956 and other local
authorities, as the case may be under the respective Acts ceases to exercise thePage 17
17
powers, perform the functions and discharge duties which the State Government or
the Director is competent to exercise, perform and discharge under the Act. Section
13 is extracted hereunder :
“Section 13. Planning area. – (1) The State Government may,
by notification, constitute planning areas for the purposes of this Act
and define the limits thereof.
(2) The State Government may, by notification,
(a) alter the limits of the planning area so as to include
therein or exclude therefrom such area as may be specified in the
notification;
(b) amalgamate two or more planning areas so as to
constitute one planning area;
 (c) divide any planning area into two or more planning
areas;
(d)declare that the whole or part of the area constituting the planning
area shall cease to be a planning area or part thereof.
 (3) Notwithstanding anything contained in the Madhya Pradesh
Municipal Corporation Act, 1956 (No. 23 of 1956), the Madhya
Pradesh Municipalities Act, 1961 (No. 37 of 1961) or the Madhya
Pradesh Panchayat Raj Adhiniyam, 1993 (No.1 of 1994), the
Municipal Corporation, Municipal Council or the Nagar Panchayat or
a Panchayat, as the case may be, 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, perform and discharge under this Act.”
17. Section 14 deals with preparation of development plan. Section 15 deals with
the preparation of existing land use maps and once the existing land use map hasPage 18
18
been published under section 15, section 16 puts restriction upon the user of the
land for any purpose other than that indicated without permission in writing of the
Director and no local authority notwithstanding anything contained in any other
law, has the power to grant permission for change in the use of land otherwise than
as indicated in the existing land use map without the permission in writing of the
Director.
18. Section 17 deals with the contents of the development plan. Section 18 deals
with the publication of draft development plan prepared under section 14 and
objections thereto and suggestions in writing have to be invited within 30 days then
the Committee under section 17A(1) has to consider the objections and suggestions
and after giving reasonable opportunity to all persons affected thereby, of being
heard, suggest such modifications in the draft development plan as it may consider
necessary then it has to be submitted to the Director who in turn, within 30 days
has to submit the same to the State Government. Section 19 deals with the sanction
of the development plan. State Government under section 19(1) may either
approve the development plan or may approve it with such modifications as it may
consider necessary or may return it to the Director to modify the same in
accordance with such directions as may be deemed appropriate. In case the State
Government wants to notify the development plan with modifications, objections
and suggestions thereto have to be invited afresh within 30 days from the date ofPage 19
19
publication of notice in writing as mandated by section 19(2) and after giving
hearing to the persons and considering objections and suggestions the State
Government may confirm the modification in the development plan as provided in
section 19(3). As per section 19(4) development plan has to be published in the
Gazette. As per section 19(5), development plan shall come into operation from the
date of publication of the notice in the Gazette and as from such date shall be
binding on all Development Authorities and local authorities functioning in the
planning area. Sections 18 and 19 are extracted hereunder :
“18. Publication of draft development plan. – (1) The
Director shall publish the draft development plan prepared under
Section 14 in such manner as may be prescribed together with a notice
of the preparation of the draft development plan and the place or the
places where the copies may be inspected, inviting objections and
suggestions in writing from any person with respect thereto, within
thirty days from the date of communication of such notice, such notice
shall specify in regard to the draft development plan, the following
particulars, namely,
(i) the existing land use maps;
(i-a) the natural hazard prone areas with the description of natural
hazards;
(ii) a narrative report, supported by maps and charts,
explaining the provisions of the draft development plan;
(iii) the phasing of implementation of the draft development
plan as suggested by the Director;
(iv) the provisions for enforcing the draft development plan
and stating the manner in which permission for
development may be obtained;Page 20
20
(v) approximate cost of land acquisition for public purposes
and the cost of works involved in the implementation of
the plan.
(2) The committee constituted under sub-section (1) of Section 17-A
shall not later than ninety days after the publication of the notice
under sub-section (1), consider all the objections and suggestions as
may be received within the period specified in the notice under
sub-section (1) and shall, after giving reasonable opportunity to all
persons affected thereby of being heard, suggest such modifications in
the draft development plan as it may consider necessary, and submit,
not later than six months after the publication of the draft
development plan, the plan as so modified, to the Director together
with all connected documents plans, maps and charts.
(3) The Director shall, within 30 days of the receipt of the plan and
other documents from the committee submit all the documents and
plans so received alongwith his comments, to the State Government.
19. Sanction of development plans.- (1) As soon as may be after the
submission of the development plan under Section 18 the State
Government may either approve the development plan or may
approve, it with such modifications as it may consider necessary or
may return it to the Director to modify the same or to prepare a fresh
plan in accordance with such directions as the State Government may
deem appropriate.
(2) Where the State Government approves the development plan with
modifications, 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.
(3) After considering objections and suggestions and after giving a
hearing to the persons desirous of being heard, the State Government
may confirm the modification in the development plan.
(4)The State Government shall publish a public notice in the Gazette
and in such other manner as may be prescribed of the approval of the
development plan approved under the foregoing provisions and thePage 21
21
place or places where the copies of the approved development plan
may be inspected.
(5) The development plan shall come into operation from the date of
publication of the said notice in the Gazette under sub-section (4) and
as from such date shall be binding on all Development Authorities
constituted under this Act and all local authorities functioning with
the planning area.” (emphasis added)
19. Section 25 of the Act of 1973 lays down that once Development Plan comes
into force the use and development of land shall conform to the provisions of the
development plan. It was also provided in section 25(2) that diversion of land
shall be subject to the provisions of the Act of 1973. Section 25 is extracted
below:
“25. Conformity with development plan – (1) After the coming into
force of the development plan, the use and development of land shall
conform to the provisions of the development plan:
 Provided that the Director may, at its discretion, permit the
continued use of land for the purpose for which it was being used at
the time of the coming into operation of the development plan:
 Provided further that such permission shall not be granted for a
period exceeding seven years from the date of coming into operation
of the development plan.
(2) Notwithstanding anything contained in Section 172 of the
Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959) every
permission to divert land granted under that section shall be subject
to the provisions of this Act.” (emphasis added)
20. It is apparent that the development plan once prepared is binding upon the
development authorities in the planning area as well as on the MunicipalPage 22
22
Corporation and other local authorities as the case may be. They cannot modify
and permit the user in contravention thereof. In other words, restriction is imposed
upon the owners on enjoyment of the property in violation of the development
plan/regional plan, as the case may be.
21. Section 49 of the Act of 1973 deals with the town development schemes.
Same has to be prepared under the umbrella of the regional plan and development
plan. The town development scheme is prepared by the Town & Country
Development Authority established under the provisions of section 38. The same
shall be a body corporate under the provisions of section 39 and its constitution is
provided in section 40. Section 49 of the Act of 1973 is extracted hereunder :
“49. Town Development Schemes.- A town development
scheme may make provision for any of the following matters,
(i) acquisition, development and sale or leasing of land for the purpose
of town expansion;
(ii) acquisition, relaying out of, rebuilding, or relocating areas which
have been badly laid out or which has developed or degenerated into a
slum;
(iii) acquisition and development of land for public purposes such as
housing development, development of shopping centers, cultural
centers, administrative centers;
(iv) acquisition and development of areas for commercial and
industrial purposes;
(v) undertaking of such building or construction work as may be
necessary to provide housing, shopping, commercial or other
facilities;
(vi) acquisition of land and its development for the purpose of laying
out or remodeling of road and street patterns;
(vii) acquisition and development of land for playgrounds, parks,
recreation centres and stadium;Page 23
23
(viii) reconstruction of plots for the purpose of buildings, roads,
drains, sewage lines and other similar amenities;
(ix) any other work of a nature such as would bring about
environmental improvements which may be taken up by the authority
with the prior approval of the State Government.”
22. Section 50 of the Act of 1973 provides for method of preparation of town
development schemes. The town development scheme may deal with the town
expansion, badly laid out areas or slums, acquisition and development of land for
housing, shopping centres, cultural centres, administrative centres, commercial and
industrial purposes, remodelling of road and street patterns, reconstruction of lands
for building roads, drains etc. Under section 50 draft plan has to be published,
objections have to be invited, heard and decided. Thereafter scheme is finalized,
same has to be published in the Gazette. Section 55 provides that the land needed
for town development scheme shall be deemed to be a land required for public
purpose within the meaning of Land Acquisition Act. Section 56 deals with
acquisition of land for Town and Country Development Authority. Within 3 years
of preparation of town development scheme under section 50, the authority may
acquire the land by agreement and in case that is not possible the State
Government at the request of the authority may proceed to acquire the land under
the provisions of the Land Acquisition Act.Page 24
24
The town development scheme has to be executed by the authority within 3
years by acquiring the land in case it is necessary as per the provisions contained in
section 56.
23. It is apparent from the provisions contained in the Act of 1973 the three
different provisions for preparation of regional plan, development plan (master
plan) and town development scheme. The regional plan is prepared by the State
Government. Development plan is prepared as per the provisions contained in
Chapter IV, sections 13 to 19 and once development plan has been finalized, it is
binding on development authorities as well as the Municipal Corporation,
Municipal Council and other local authorities functioning in the planning area.
Town development scheme can be framed by the development authorities and it
may declare its intention to do so with the prior approval of the State Government.
In re : Town Planning Scheme of the Act of 1956 :
24. Section 291 of the Act of 1956 enjoins upon the Municipal Corporation to
prepare town planning scheme and in case the scheme has been sanctioned under
the provisions of Town Improvement Act, it is provided by section 292 of the Act
of 1956 that no town planning scheme shall be made by the Corporation. Sections
291 and 292 of the Act of 1956 are extracted hereunder :
“291. Town planning scheme.- (1) The Corporation
may, and if so required by the Government shall, within six
months of the date of such requisition, direct the CommissionerPage 25
25
to draw up a town planning scheme, which may, among other
things, provide for the following matter, namely:-
(a) a direction that in any street, portion of a street or locality
specified in the scheme the elevation and construction of the
frontage of all buildings thereafter erected or re-erected shall, in
respect of their architectural features, be such as may be fixed
for the locality;
(b) a direction that in any street, portion of a street or locality
specified in the scheme, there shall be allowed the construction
only detached or semi-detached buildings or both, and that the
land appurtenant to each building shall be of an area not less
than that specified in the scheme;
(c) a direction that in any street, portion of a street or locality
specified in the scheme, the construction of more than a
specified number of houses on each acre of land shall not be
allowed;
(d) a direction that in any street, portion of a street or locality
specified in the scheme, the construction of shops, warehouses,
factories, huts or buildings of a specified architectural character
or buildings designed for particular purpose shall not be
allowed;
(e) a street line and a building line on either side or on both
sides of any street existing or proposed;
(f) a standard plan, either for the division of land into building
sites, or for the location of buildings within a building site;
(g) the amount of land which shall be transferred to the
Corporation for public purposes and public streets by owners of
land on payment of compensation;
(h) the prohibition of building operations permanently or
temporarily when by reason of the situation or nature of the
land, the erection of buildings thereon would be likely to
involve danger or injury to health, or excessive expenditure of
public money in the provision of roads, sewers, water supply or
other public services;
(i) regulating in the interest of safety, the height and position of
proposed walls, fences or hedges near the corners or bends of
streets;
(j) limiting the number or prescribing the sites of new roads
entering a highway maintained by the Government; Page 26
26
(k) regulating, in respect of the erection of any building
intended to be used for purposes of business or industry, the
provision of accommodation for loading, unloading or fuelling
vehicles with a view to the prevention of obstruction of traffic
on any highway; and
(l) a direction that in any street, portion of a street or locality
specified in the scheme, the use of land for any purposes even
though not involving the erection of building, shall not be
inconsistent with the provisions of this section with respect of
buildings.
(2) When a scheme has been drawn up under the provisions of
sub-section (1), the Commissioner shall give public notice of
the scheme and shall therein announce a date not less than 30
days from the date of such notice by which any person may
submit to the Commissioner in writing any objection or
suggestion with regard to the scheme which he may wish to
make.
(3) The Commissioner shall within fifteen days of the date
announced under the provisions of sub-section (2), forward to
the Mayor-in-Council the notice together with the objections or
suggestions, if any, and his opinion therefor.
(4) The Mayor-in-Council, shall within fifteen days of the
receipt of the documents relating to the scheme, forward them
to the Corporation together with the opinion of the
Commissioner and any comments which the Mayor-in-Council
may make.
(5) The Corporation shall consider every objection or
suggestion with regard to the scheme and may modify the
scheme in consequence of any such objection or suggestion and
shall then forward such scheme as originally drawn up or as
modified, together with the documents mentioned in
sub-section (4) to the Government which may sanction the
scheme or sanction it with such modification as it may think fit
or may refuse to sanction it, or may return it to the Corporation
for reconsideration and re-submission by a specified date. Page 27
27
(6) If the Corporation fails to submit a scheme within six
months of being required to do so under sub-section (1) or fails
to re-submit a scheme by a specified date when required to do
so under sub-section (5), or re-submits a scheme which is not
approved by the Government, the Government may draw up a
scheme which shall be published within the limits of the
Corporation together with an intimation of the date by which
any person may submit in writing to the Government any
objection or suggestion which he may wish to make. The
Government may sanction such scheme as originally published
or modified in consequence of any such objection or suggestion
as the Government may think fit.
(7) Notwithstanding anything contained in the foregoing
sub-sections if the Corporation in case of scheme initiated by it,
decides to drop the scheme it shall intimate the Government
accordingly.
(8) The cost of such scheme, or such portion of the cost as the
Government may deem fit shall be paid from the Municipal
Fund.
(9) When sanctioning a scheme the Government may impose
the conditions for the submission of periodical reports on the
progress of the scheme to the Government, and for the
inspection and supervision of the scheme by the Government.
(10) No person shall erect or re-erect any building or take any
other action in contravention of any such scheme or of any rule
or byelaw made under the provisions of this Act.
292. Restriction on Corporation’s power to undertake town
planning scheme -- Notwithstanding anything contained in
section 291, no town planning scheme shall be made by the
Corporation for any area for which a scheme has been
sanctioned under the provisions of Town Improvement Act.”
 (emphasis added)Page 28
28
It is apparent that section 292 of the Act of 1956 refers to Town
Improvement Act which was in vogue in different areas of erstwhile Madhya
Pradesh which has ultimately consolidated the different Acts into the M.P. Town
Improvement Trust Act, 1960 (hereinafter referred to as ‘the Act of 1960’).
25. The Act of 1960 provided for various improvement schemes under section
30. Section 31 of the Act of 1960 dealt with types of improvement schemes such as
general improvement schemes, re-building, re-housing, street, deferred street
schemes and development scheme. 10 types of schemes were provided under
section 31. When scheme was proposed, consideration of representation was also
provided. The State Government had the power to sanction, reject or return the
improvement scheme as provided in section 51. In case the State Government
sanctioned the scheme it was required to be notified under section 52 of the Act of
1960. The Act of 1960 has ceased to be operative in the areas, once the Act of 1973
has been made applicable by establishing the authorities under the provisions of
sections 38 to 40. In our considered view, the expression ‘scheme’ in section 292
has to be taken to mean the regional plan, development plan and also to any
scheme under section 49 framed under the Act of 1973. The provision is not
confined to a scheme prepared under sections 49 and 50 of the Act of 1973. There
cannot be two schemes for the same area.
In re : Scope of power of Corporation under Section 305 : Page 29
29
26. Before taking the question of vires of the provisions contained in sections
305 and 306 of the Act of 1956, we consider it appropriate to deal with the
submissions raised on behalf of the appellants with respect to its interpretation and
ken of powers conferred upon the Municipal Corporation. Section 305 of the Act
of 1956 is extracted hereunder :
“305. Power to regulate line of buildings.- (1) If any
part of a building projects beyond the regular line of a public
street, either as existing or as determined for the future or
beyond the front of immediately adjoining buildings the
Corporation may-
(a) if the projecting part is a verandah, step or some other
structure external to the main building, then at any time, or
(b) if the projecting part is not such external structure as
aforesaid, then whenever the greater portion of such building or
whenever any material portion of such projecting part has been
taken down or burned down or has fallen down,
require by notice either that the part of some portion of the part
projecting beyond the regular line or beyond the front of the
immediate adjoining building, shall be removed, or that such
building when being rebuilt shall be set back to or towards the
said line or front; and the portion of land added to the street by
such setting back or removal shall henceforth be deemed to be
part of the public street and shall vest in the Corporation :
 Provided that the Corporation shall make reasonable
compensation to the owner for any damage or loss he may
sustain in consequence of his building or any part thereof being
set back.
(2) The Corporation may, on such terms as it thinks fit, allow
any building to be set forward for the improvement of the line
of the street.”
27. It was submitted on behalf of the appellants that for the exigencies
contemplated in clause (a) of sub-section (1) of section 305 when projecting part isPage 30
30
external to the main building then notice can be issued at any time for removal of
projecting part such as verandah, step or some other structure and in case
projecting part is as provided in section 305(1)(b) whenever projecting part is
greater portion of such building or whenever any material portion of such
projecting part has been taken down or burned down or has fallen down then only
notice can be issued. No notice can be issued by the Corporation under the
provisions of section 305(1) for its removal. The word ‘or’ in clause (b) in-between
greater portion of such building and material portion is not disjunctive. First part of
clause (b) has to be read conjunctively with the latter part. Even if greater portion
of such building and material portion of such projecting part is read disjunctively,
the words used taken down, burned down, fallen down qualify both the exigencies
provided in clause (b). The word ‘removal’ used in section 305(1) has to be read
for the situation in clause (a) only. For the situation covered by clause (b) notice is
issued only after happening of the mentioned event and that at the same time, when
building is proposed to be re-built, notice can be for “setting back” of the building.
It was also submitted that in a given situation when greater or material portion of
the building or projecting part has fallen down but some portion of the building
which is still projecting beyond the building line, in that situation Corporation can
legitimately ask the owner to remove the remaining projecting portion of the
building. It was also submitted that the latter part of section 305 empowers thePage 31
31
Corporation to issue a notice and require the owner to act in the manner stated to
remove or set back while re-building. The section does not empower the
Corporation to enter and take possession. Thus, Corporation has no power to
remove, enter or take possession of greater portion or material portion of the
building. It was also submitted that vesting takes place only after portion of the
land is added to the public street by setting back or removal. Till that exigency
happens, property continues to be that of the owner. Section 305 contemplates
voluntary action on the part of owner. There is conscious omission as to the power
of the Corporation to remove or enter which cannot be supplied by the Court.
Municipal Authorities have to act within the confine of the powers conferred upon
them. They cannot commit trespass. Thus without acquisition of the land under
section 278 or 279, as the case may be, of the Act of 1956 on the refusal of the
owner to remove, Corporation has no right to have the land and remove the
structure. Under the guise of Section 305, Corporation cannot invoke the power of
acquisition of land.
28. On behalf of the respondents, it was submitted that the provision contained
in section 305 authorises the Corporation to remove any part of the building. If any
part of building projects beyond the regular line of building, existing or as
determined for the future or beyond the front of immediately adjoining buildings,
that part or some portion of the part projecting beyond the regular line or beyondPage 32
32
the front of the adjoining building shall be removed. The action taken is in
accordance with the law hence no interference is called for.
29. In our considered opinion, it is clear that Section 305 deals with the power of
Corporation to regulate line of buildings. If any part of the building falls within
the regular line of a public street either existing or as determined for the future or
beyond the front of immediately adjoining building, the Corporation may issue a
notice either that part which is projecting or some portion of the part projecting,
shall be removed or that when the building is rebuilt, the portion projecting shall be
set back to and the portion of the land added to the street by such “setting back or
removal”, shall henceforth be deemed to be part of the public street and shall vest
in the Corporation. The words ‘that the part or some portion of the part projecting
beyond the regular line’ of the public street may be :
(a) greater portion of such building which has not fallen down; or
(b) that projecting part is verandah, step or some other structure external to the
main building; or
(c) whenever any material portion or such material part has been taken down,
burned down or has fallen down.
All the abovesaid exigencies are covered in the ken of section 305(1).
Section 305 only contemplates issuance of a notice, in the case of a public street
that the part projecting is beyond the regular line of public street and is greaterPage 33
33
portion or material portion of such building or external portion to the main
building, shall be removed. It has to intimate its intention to remove the structure.
In case any portion of such material part has been taken down, burned down or has
fallen down, the Corporation may require by notice such portion shall be set back
to.
30. We are not at all impressed by the submission that section 305 contemplates
only voluntary removal by the owner of the building. Section 305 is a wholesome
provision with respect to maintaining the regular line of a public street, existing or
as determined for the future, it clearly empowers the Corporation to intimate its
intention to remove that part of the structure projecting beyond the regular line of
public street under section 305. The primary statutory mandate is on Corporation to
act for removal. Obviously, it has power to remove is apparent from plain language
otherwise the provision will be of no utility. The point when the notice can be
issued is clearly culled out in section 305. In the case of clause (a) when the
projecting part is external to the main building such as verandah, step etc. then
notice can be issued at any time and two points of happening of exigencies are
provided separately in clause (b) : first, whenever projecting part is not an external
structure but is a greater portion of such building and it projects beyond the regular
line of public street and second exigency provided in clause (b) has to be read asPage 34
34
“whenever any material portion of such projecting part has been taken down or
burned down or has fallen down”.
31. Even in clause (b) of section 305, ‘removal’ is contemplated and is not
confined to a case under clause (a). The Legislature has used two expressions :
“whenever greater portion of such building” and secondly “whenever any material
portion of projecting part has been taken down or burned down or has fallen
down”, which means that clause (b) clearly fixes the time for action that
‘whenever’ projecting part of greater portion of such building is projecting beyond
the regular line of public street, removal can be made or ‘whenever’ material
portion of such projecting part has been taken down, burned down or fallen down,
it has to be set back and part which has not fallen down, has to be removed. The
removal is contemplated even in the latter exigency of clause (b) when material
portion of such part has been taken down, burned down or fallen down, still some
portion other than ‘material portion’ projecting in line may require removal which
has not been taken down, fallen down or burned down. It is not that the expression
that entire building projecting in regular line of public street has been taken down,
burned down or fallen down. The expression in the latter part of clause (b) is taken
down, fallen down or burned down is not related to the entire projecting part. Thus
the earlier part “whenever greater portion of such building” is projecting beyond
the regular line of public street, has to be read with respect to a building which hasPage 35
35
not fallen down, taken down or burned down. The word ‘or’ in section 305(1)(b)
used between greater portion of such building or whenever any material portion of
such building has to be read disjunctively. Nonetheless ‘removal’ is contemplated
in all the exigencies. In case it has been taken down, burned down or fallen down,
it may require the material portion to be set back and remaining portion can be
removed in the latter exigency of clause (b) itself.
32. In our opinion, a notice can be issued by the Corporation for removal of the
existing structure also. The opening part of section 305(1) and its latter part after
clause (b) make it abundantly clear that a building or a part of the portion which
projects into the periphery of regular line of public street, can be removed. The
interpretation suggested on behalf of the appellants that in case the building has
been taken down, burned down or fallen down, only in that exigency action can be
taken under section 305(b) and not otherwise, would render the provision
contained in section 305 and the provision as to public street in the development
plan otiose.
33. Learned counsel for the appellant/s has placed reliance on the provisions
contained in sections 307(3), 309(2), 309(5), 309(6), 310 and 313 so as to contend
that statutory power has been conferred under those provisions and Commissioner
has been statutorily authorized on the failure of the owner to remove the
construction after notice to remove the same. Therefore, it was submitted thatPage 36
36
accordingly the provisions of section 305 should be construed by us so as to negate
the power of removal with the Corporation.
34. In our opinion, the provision contained in section 307 is totally different.
Where an adjudicatory process is involved, person can show sufficient cause why
the building or work shall not be removed, altered or pulled down but in the cases
falling within the purview of section 305, there is no such adjudicatory process or
discretion provided. The expression used in section 307(2) is that show-cause has
to be made why the work shall not be removed, altered or pulled down, and a
person is required to show-cause and on his own failure to show “sufficient cause”
why such building or work should not be removed, Commissioner is authorized to
remove, alter or pull down the building or work under section 307(3). Since the
notice which is contemplated under section 305 does not involve such a case
showing sufficiency of cause in case building is falling within the regular line of
public street, the building is necessarily to be removed. The expression used is that
require by notice removal of the building, the legislative mandate for removal is
addressed to the Corporation also to remove the same. As such it was not necessary
to repeat it once over again in the provisions contained in section 305.
35. Section 309 deals with the provisions regarding building unfit for human
habitation. In that eventuality certain procedure is specified. We find absolutely no
ground to accept the submission that the procedure prescribed under section 309 orPage 37
37
the provisions thereof should guide the interpretation of section 305 and for similar
reason the provisions contained in sections 310 and 313 relating to dangerous
building and removal of building material from any places in certain cases which
may be considered harming or breeding places for riot or other source of danger or
nuisance to the occupier, then a notice shall be required to be issued; and on failure
the Commissioner is empowered to remove; whereas the provisions of section 305
cast a mandate upon the Corporation to remove whatever is projecting beyond the
regular line of public street. The intendment of the aforesaid provisions is different,
hence render no help or guide so as to interpret the provisions of section 305. In
fact when all the provisions are considered, the interpretation of section 305 is
fortified that it primarily mandates the Corporation to take action of removal on
satisfaction of exigencies specified therein.
In re : Possession/deemed to be part of public street and vesting under section
305 of the Act of 1956:
36. Coming to question as to when vesting takes place. As soon as the building
or the projecting part has been removed or when the Corporation has issued a
notice when such re-building shall be set back or to the front line, the line added by
such action by setting back or removal, shall henceforth without any further
formalities, be deemed to be a part of public street and shall vest in the
Corporation. Vesting does not depend upon the volition of the owner. Otherwise noPage 38
38
public street can ever be brought in regular line. The Corporation has the power to
remove, as discussed hereinabove. As deemed vesting is provided under Section
305, as such there is no requirement of separate provision for taking possession.
For removal there is specific provision and adequate safeguards have been
provided for fixing the regular line of a public street while preparing the
development plan or the town development scheme, as the case may be.
37. In The Municipal Corporation, Indore v. K.N. Palsikar AIR 1969 SC 579, a
question arose whether it was open to the Corporation to withdraw from the
acquisition. This Court has laid down that there is automatic vesting of land in the
Corporation under section 305 once the requisite conditions are satisfied. This
Court has observed as under :
“14. Regarding point No. 1, we agree with the High Court that
there is no provision in the Act for enabling the Corporation to
withdraw from the acquisition proceedings. In fact, it seems to us that
there is automatic vesting of the land in the Corporation under Sec.
305 once the requisite conditions are satisfied. …..”
 (emphasis supplied)
As to the third question framed by this Court in Palsikar’s case (supra) to the
effect that when the Act provides only for compensation and not any solatium
whether it could be paid. This Court laid down that once the Land Acquisition Act
is applicable under section 387 solatium can be claimed.
38. It was also submitted that possession can be taken only after compensation
has been paid as held in State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280. ItPage 39
39
was submitted that there is a difference between de jure possession and de facto
possession. It was also submitted that mere vesting in the absence of specific
substantive provision providing for taking over of possession forcibly, does not
authorize any authority to take over the physical possession of any property. The
decision in State of U.P. v. Hari Ram (supra) is quite distinguishable and is based
upon the provisions contained in section 10 of the Urban Land (Ceiling and
Regulation) Act, 1976 (in short, “the Act of 1976”). Section 10(5) whereof
provides after the land has vested to take possession by a notice. On failure to
comply with the notice to hand-over possession Competent Authority may take
possession under section 10(6) of the Act of 1976. Legal fiction of vesting has been
taken into consideration and discussed by this Court in the said decision. This
Court has laid down that while the meaning of the legal fiction has to be
ascertained for what purpose it is created and should be carried as far as necessary
to achieve the legislative purpose, the word ‘vest’ in a statute has different meaning
in different contexts. This Court has also held that “vest/vested” therefore may or
may not include transfer of possession, the meaning of which depends on the
context in which it has been used and the interpretation of various other related
provisions. This Court in Hari Ram (supra) has discussed the meaning of such
legal fiction thus :
“18. The legislature is competent to create a legal fiction, for
the purpose of assuming existence of a fact which does not reallyPage 40
40
exist. Sub-section (3) of Section 10 contained two deeming provisions
such as “deemed to have been acquired” and “deemed to have been
vested absolutely”. Let us first examine the legal consequences of a
“deeming provision”. In interpreting the provision creating a legal
fiction, the court is to ascertain for what purpose the fiction is created
and after ascertaining this, the court is to assume all those facts and
consequences which are incidental or inevitable corollaries to the
giving effect to the fiction. This Court in Delhi Cloth and General
Mills Co. Ltd. v. State of Rajasthan (1996) 2 SCC 449 held that what
can be deemed to exist under a legal fiction are facts and not legal
consequences which do not flow from the law as it stands.
19. James, L.J. in Levy, In re, ex p Walton (1881) 17 Ch D 746
speaks on deeming fiction as: (Ch D p. 756)
“… When a statute enacts that something shall be deemed to
have been done, which in fact and [in] truth was not done, the court is
entitled and bound to ascertain for what purposes and between what
persons the statutory fiction is to be resorted to.”
24. The expression “deemed to have been acquired” used as a
deeming fiction under sub-section (3) of Section 10 can only mean
acquisition of title or acquisition of interests because till that time the
land may be either in the ownership of the person who held that
vacant land or to possess such land as owner or as a tenant or as
mortgagee and so on as defined under Section 2(1) of the Act. The
word “vested” has not been defined in the Act, so also the word
“absolutely”. What is vested absolutely is only the land which is
deemed to have acquired and nothing more. The word “vest” has
different meaning in different context; especially when we examine
the meaning of “vesting” on the basis of a statutory hypothesis of a
deeming provision which Lord Hoffmann in Customs and Excise
Commissioners v. Zielinski Baker and Partners Ltd. (2004) 2 All ER
141 (HL) at para 11 described as “heroic piece of deeming”.
28. “Vest”/“vested”, therefore, may or may not include “transfer
of possession”, the meaning of which depends on the context in which
it has been placed and the interpretation of various other related
provisions.”Page 41
41
Though in the context of section 10 of the Urban Ceiling Act and provision
of taking possession, this Court in Hari Ram (supra) has laid down that “vesting”
under section 10 takes in every interest in the property including de jure possession
and not de facto but it is always open to a person to voluntarily surrender and give
possession under section 10(3) of the Act, which is not the position in the instant
case as held by us in removal of the building under section 305 of the Act of 1956,
it is implicit that once removal is made, vesting follows and possession stands
transferred as part of public street. When we consider the deeming fiction in
section 305 and vesting provision, de jure and de facto possession automatically
vested in the Corporation on the happening of the exigencies as provided in section
305.
39. It was submitted on behalf of appellants that there is a conscious omission
in the provision contained in section 305 with respect to the power of entry,
removal or to take possession. The appellants have relied upon the decision of this
Court in The Commissioner of Sales Tax, U.P. Lucknow v. M/s. Parson Tools &
Plants, Kanpur (1975) 4 SCC 22, thus :
“16. If the legislature wilfully omits to incorporate something of
an analogous law in a subsequent statute, or even if there is a casus
omissus in a statute, the language of which is otherwise plain and
unambiguous, the Court is not competent to supply the omission by
engrafting on it or introducing in it, under the guise of interpretation,
by analogy or implication, something what it thinks to be a general
principle of justice and equity. To do so “would be entrenching uponPage 42
42
the preserves of Legislature”, the primary function of a court of law
being jus dicere and not jus dare.”
40. It was also submitted on behalf of the appellant/s that even if there is some
mistake or casus omissus or defect in the phraseology used by the Legislature, the
court cannot aid the Legislature’s defective phrasing of an Act or add and amend
or, by construction, make up the deficiencies which are left in the Act, placing
reliance on the decisions in Nalinakhya Bysack v. Shyam Sunder Haldar & Ors.
(1953) SCR 533; Punjab Land Development & Reclamation Corporation Ltd. v.
Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682; Union of India &
Anr. v. Deoki Nandan Aggarwal (1992) Supp. 1 SCC 323; and Padma Sundara
Rao (Dead) & Ors. v. State of T. N. & Ors. (2002) 3 SCC 533.
41. In The Commissioner of Sales Tax, U.P., Lucknow v. M/s. Parson Tools &
Plants, Kanpur (supra), this Court has laid down that if the Legislature wilfully
omits to incorporate something of an analogous law in a subsequent statute, or
even if there is a casus omissus in a statute, the language of which is otherwise
plain and unambiguous, the Court is not competent to supply the omission by
engrafting on it or introducing in it, under the guise of interpretation, by analogy or
implication, something what it thinks to be a general principle of justice and equity.
42. In Punjab Land Development and Reclamation Corpn. Ltd., Chandigarh v.
Presiding Officer, Labour Court (supra), this Court has laid down that when therePage 43
43
is gap in the provision, it should be remedied by the legislature by amendment.
Court has only to interpret a statute and apply it to the facts. This Court has laid
down thus :
“79. The court has to interpret a statute and apply it to the facts.
Hans Kelsen in his Pure Theory of Law (p. 355) makes a distinction
between interpretation by the science of law or jurisprudence on the
one hand and interpretation by a law-applying organ (especially the
court) on the other. According to him “jurisprudential interpretation is
purely cognitive ascertainment of the meaning of legal norms. In
contradistinction to the interpretation by legal organs, jurisprudential
interpretation does not create law”. “The purely cognitive
interpretation by jurisprudence is therefore unable to fill alleged gaps
in the law. The filling of a so-called gap in the law is a law-creating
function that can only be performed by a law-applying organ; and the
function of creating law is not performed by jurisprudence
interpreting law. Jurisprudential interpretation can do no more than
exhibit all possible meanings of a legal norm. Jurisprudence as
cognition of law cannot decide between the possibilities exhibited by
it, but must leave the decision to the legal organ who, according to the
legal order, is authorised to apply the law”. According to the author if
law is to be applied by a legal organ, he must determine the meaning
of the norms to be applied: he must ‘interpret’ those norms (p. 348).
Interpretation therefore is an intellectual activity which accompanies
the process of law application in its advance from a higher level to a
lower level. According to him, the law to be applied is a frame. “There
are cases of intended or unintended indefiniteness at the lower level
and several possibilities are open to the application of law”. The
traditional theory believes that the statute, applied to a concrete case,
can always supply only one correct decision and that the positive-legal
‘correctness’ of this decision is based on the statute itself. This theory
describes the interpretive procedure as if it consisted merely in an
intellectual act of clarifying or understanding; as if the law-applying
organ had to use only his reason but not his will, and as if by a purely
intellectual activity, among the various existing possibilities only one
correct choice could be made in accordance with positive law.
According to the author: “The legal act applying a legal norm may be
performed in such a way that it conforms (a) with the one or the otherPage 44
44
of the different meanings of the legal norm, (b) with the will of the
norm creating authority that is to be determined somehow, (c) with the
expression which the norm-creating authority has chosen, (d) with the
one or the other of the contradictory norms; or (e) the concrete case to
which the two contradictory norms refer may be decided under the
assumption that the two contradictory norms annul each other. In all
these cases, the law to be applied constitutes only a frame within
which several applications are possible, whereby every act is legal
that stays within the frame”.
In Union of India & Anr. v. Deoki Nandan Aggarwal (supra), this Court has
laid down that courts cannot supply omissions to a statute and a court cannot
invoke the principle of affirmative action to avoid discrimination so as to modify
the legislative policy. In Padma Sundara Rao (dead) & Ors. v. State of T.N. & Ors.
(supra), this Court held when casus omissus cannot be supplied by the Court.
Reliance has also been placed upon the decisions in Jones v. Wrotham Park Settled
Estates & Anr. (1979) 1 AER 286; Inco Europe Ltd & Ors. v. First Choice
Distribution (a firm) & Ors. (2000) 2 AER 109; and Singareni Collieries Co. Ltd.
v. Vemuganti Ramakrishan Rao & Ors. (2013) 8 SCC 789 which are the cases in
which the court has supplied omissions, the same is based upon the principle of
true intent of the Legislature and in order to give effect to the said intent, the courts
can supply words which appear to be accidentally omitted or if the literal
construction would in fact do violence to the legislative objective. For that, three
conditions must be satisfied before this course can be adopted : (i) that the intended
purpose of the statute is not being achieved by literal construction of the statute;Page 45
45
(ii) that by inadvertence the draftsmen and Parliament failed to give effect to that
purpose in the provision; and (iii) the substance of the provision Parliament would
have made an be known with precision, though not in exact language, had the error
in the bill been noticed.
43. There is no dispute with the principles laid down by this Court in the
aforesaid dictums. However the language of section 305 is plain, simple and clear.
In our opinion there is no defect in the phraseology used. The exigencies when the
notice can be issued including the vesting part and deeming fiction are very clear.
In view of aforesaid discussion, we do not find any deficiency in the phraseology
used in section 305 of the Act of 1956, as such we do not venture to add, substract,
amend or by construction make up the deficiencies. We find that there is no
omission or lacunae, much less casus omissus as submitted, in the provisions
contained in section 305 of the Act of 1956.
44. In the case of Municipal Corporation, Bhopal, the action has been taken as
per the development plan/master plan, 2005 notified in the year 1995. With respect
to Indore, action has been taken as per the Master Plan of 1991 notified in the year
1975 and Master Plan of 2021 has also been notified. Both are the cases of BRTS
corridor project. As such action has been taken under section 305 and in case of
Indore, it is also admitted that there was a scheme framed under section 49 read
with section 50 of the Act of 1973. In the case of Bhopal, the appellants have notPage 46
46
pleaded that the scheme under sections 49 and 50 has not been prepared.
Nonetheless the fact remains that Bhopal Municipal Corporation has initiated
action under section 305 pursuant to the permission given by the High Court by its
interim order to enforce the provisions of Development Plan, 2005 notified in the
year 1995 in which the width of the corridor has been so provided.
45. Gauged in the aforesaid perspective various provisions and in particular
restrictive provisions contained in the Act of 1973, restrictions put on the user of
the land by the owner on erection, re-erection under the Act of 1956 etc., it is
apparent that the power conferred under section 305 has to be exercised with
respect to regular line of a public street, either existing or as determined for future,
when hearing has already been afforded while laying down regular line under
section 18/19 of the Act of 1973 and the power is conferred by notice to remove
the building under section 305 of the Act of 1956 which includes all the powers
and steps which are necessary for removal of such building. The vesting takes
place, as soon as the building is removed or notice is served for the building to be
set back, land is deemed to be part of the street and shall vest in the Corporation.
Thus, by deeming fiction vesting takes place, as such there was no necessity of
specific provision for taking over of the possession that is implicit in the deeming
part and vesting of the property by legal fiction.Page 47
47
In re : Section 78/79 of the Act of 1956 and Section 56 of the Act of 1973 :
46. It was also submitted that when the provisions of the statute are plain and
unambiguous, court shall not interpret the same in a different manner only because
harsh consequences arise therefrom and the authority should be asked to acquire
the land as per the provisions contained in section 79 of the Act of 1956. Section
305 is required to be harmoniously construed along with other provisions within
the constitutional limitations. Reliance has been placed on a decision of this Court
in Nasiruddin v. Sita Ram Agarwal (2003) 2 SCC 577.
47. It was also submitted on behalf of the appellants that when under section 56
of the Act of 1973 land has been acquired for town development scheme by
development authorities, the power cannot be treated to be with the Corporation to
vest the property in the public street without its acquisition under the provisions of
section 305 of the Act of 1956 without acquisition under section 79 thereof. It is
necessary to notice the provisions contained in sections 78 and 79 of the Act of
1956 and section 56 of the Act of 1973. The provisions contained in sections 78
and 79 of the Act of 1956 are extracted hereunder :
“78. Acquisition of immovable property or easement
by agreement.-
(1) Whenever it is provided by this Act that the Commissioner
may acquire or whenever it is necessary or expedient for any
purpose of this Act that the Commissioner shall acquire, anyPage 48
48
immovable property, such property may be acquired by the
Commissioner on behalf of the Corporation by agreement on
such terms and at such rates or prices, or at rates or prices not
exceeding such maxima, as shall be approved by the
Mayor-in-Council either generally for any class of cases or
specially in particular case.
(2) Whenever, under any provision of this Act the
Commissioner is authorized to agree to pay the whole or any
portion of the expenses of acquiring any immovable property,
he shall do so on such terms, and at such rates or prices, or at
rates or prices not exceeding such maxima, as shall have been
approved by the Mayor-in-Council:
 Provided that no agreement for the acquisition of any
immovable property under sub-section (1) or (2) at a price
exceeding one thousand rupees shall be valid until such
agreement has been approved by the Corporation.
(3) The Commissioner may, on behalf of the Corporation
acquire by agreement any easement affecting any immovable
property vested in the Corporation and the provisions of sub
–sections (1) and (2) shall apply to such acquisition.
79. Procedure when immovable property or easement can
not be acquired by agreement.-
(1) Whenever the Commissioner is unable under Section 78 to
acquire by agreement any immovable property or any easement
affecting any immovable property or whenever any immovable
property or any easement affecting any immovable property
vested in the Corporation is required for the purposes of this
Act, the Government may in its discretion upon the application
of the Commissioner made with the approval of the
Mayor-in-Council order proceedings to be taken for acquiring
the same on behalf of the Corporation as if such property or
easement were land needed for a public purpose within the
meaning of the Land Acquisition Act, 1894.
(2) The amount of the compensation awarded and all other
charges incurred in the acquisition of any such property or
easement shall, subject to all other provisions of this Act, be
forthwith paid by the Commissioner and thereupon the said
property or easement shall vest in the Corporation. Page 49
49
(3) When any land is required for a new street or for the
widening or improving of an existing street, the Commissioner
may proceed to acquire, in addition to the land to be occupied
by the street, the land necessary for the sites of the building to
be erected on both sides of the streets, and such land shall be
deemed to be required for the purposes of this Act.”
 Section 56 of the Act of 1973 is extracted hereunder :
“56. Acquisition of land for Town and Country Development
Authority.- The Town and Country Development Authority may at
any time after the date of publication of the final town development
scheme under Section 50 but not later than three years therefrom,
proceed to acquire by agreement the land required for the
implementation of the scheme and, on its failure so to acquire, the
State Government may, at the request of the Town and Country
Development Authority proceed to acquire such land under the
provisions of the Land Acquisition Act, 1894 (No. 1 of 1894) and on
the payment of compensation awarded under that Act and any other
charges incurred by the State Government in connection with the
acquisition, the land shall vest in the Town and Country Development
Authority subject to such terms and conditions as may be prescribed.
Provided that the said agreement may contain such conditions
and executed in such manner as may be prescribed.”
48. In order to understand the procedure of compensation prescribed under
section 305, we have to take note of the provisions contained in sections 306 and
387 of the Act of 1956 also. The provisions are extracted hereunder :
“306. Compensation.- (1) No compensation shall be
claimable by an owner for any damage which he may sustain in
consequence of the prohibition of the erection of any building.
 (2) The Corporation shall make reasonable compensation to
the owner for damage or loss which he may sustain in
consequence of the prohibition of the re-erection of any building
or part of a building except in so far as the prohibition is
necessary under any rule or byelaw :Page 50
50
 Provided that the Corporation shall make full compensation
to the owner for any damage he may sustain in consequence of
his building or any part thereof being set back unless for a
period of three years or more immediately preceding such notice
the building has by reason of its being in a ruinous or dangerous
condition become unfit for human habitation or unless an order
of prohibition issued under section 286 has been and still is in
force in respect of such building.
 (3) The Corporation shall make reasonable compensation to
the owner for any damage or loss which he may sustain
consequence of the inclusion of his land in a public street but in
assessing such compensation, regard shall be had to the benefits
accruing to that owner from the development of the land
belonging to him and affected by such street.”
387. Arbitration in cases of compensation, etc.- (1) If an
agreement is not arrived at with respect to any compensation or
damages which are by this Act directed to be paid, the amount
and if necessary the apportionment of the same shall be
ascertained and determined by a Panchayat of three persons of
whom one shall be appointed by the Corporation, one by the
party, to or from whom such compensation or damages may be
payable or recoverable, and one, who shall be Sarpanch, shall be
selected by the members already appointed as above.
 (2) If either party or both parties fail to appoint members
within one month from the date of either party receiving written
notice from the other of claim to such compensation or damages,
or if the members fail to select a Sarpanch, such members as
may be necessary to constitute the Panchayat shall be appointed,
at the instance of either party, by the District Court.
 (3) In the event of the Panchayat not giving a decision within
one month or such other longer period as may be agreed to by
both the parties from the date of the selection of the Sarpanch or
of the appointment by the District Court of such members as
may be necessary to constitute the Panchayat, the matter shall,
on application by either party be determined by the District
Court which shall, in cases, in which the compensation isPage 51
51
claimed in respect of land, follow as far as may be the procedure
provided by the Land Acquisition Act, 1894, for proceedings in
matters referred for the determination of the Court :
 Provided that-
(a) no application to the Collector for a reference shall be
necessary, and
(b) the court shall have full power to give and apportion the
costs of all proceedings in manner it thinks fit.
 (4) In any case where the compensation is claimed in respect
of land and the Panchayat has given a decision, either party, if
dissatisfied with the decision, may within a month of the date
thereof apply to the District Court and the matter shall be
determined by the District Court in accordance with the
provisions of sub-section (3).
 (5) In any case where the compensation is claimed in respect
of any land or building, the Corporation may after the award
has been made by the Panchayat or the District Court, as the
case may be, take possession of the land or building after
paying the amount of the compensation determined by the
Panchayat or the District Court to the party to whom such
compensation, may be payable. If such party refuses to accept
such compensation, or if there is no person competent to
alienate the land or building, or if there is any dispute as to the
title to the compensation or as to the appointment of it, the
Corporation shall deposit the amount of the compensation in the
District Court, and take possession of such property.”
49. We have extracted the definitions of ‘private street’, ‘public street’ and
‘street’ as defined in sections 5(45), 5(49) and 5(55) of the Act of 1956. Private
street means a street which is not a public street. Public street means any street
over which the public have a right of way or which have been leveled, paved,
metalled, asphatled, channeled, sewered or repaired out of municipal or otherPage 52
52
public funds or which under the provisions of the Act, becomes a public street as
provided in section 330 and which includes the roadway over any public bridge or
causeway, footway attached to any such street, public bridge or causeway; and the
drains attached thereto. Street means any road, footway, square, court alley or
passage, accessible whether permanently or temporarily to the public. Public street
and private street are separately defined – though the public street may also include
any street provided in section 5(49) but every street is not a public street and
private street is a street which is not a public street. Any street may be declared to
be public street under the provisions of section 330. In the exigencies as provided
in sub-section (1) thereof and Commissioner may also after inviting objections,
declare a street or part of the same to be public street, and an appeal is provided
against the decision. Under Section 305 the power is conferred on the Municipal
Corporation to remove building or any part of the building beyond the regular line
of a “public street”; whereas the provisions contained in section 79(3) is with
respect to a new street or for widening or improving an existing street. There is
difference when there is a public street line, the special provision contained in
section 305 is attracted. The recourse to the provisions of acquisition under
sections 78 and 79 is clearly ousted by the special provision contained in Section
305 of the Act of 1956. Being a special provision with respect to maintaining a
regular line of a public street which has been carved out by the Legislature underPage 53
53
section 305 of the Act of 1956, would prevail upon the general provisions with
respect to acquisition of land as provided in sections 78 and 79 thereof.
50. In “The Principles of Statutory Interpretation” by G.P. Singh, 13th Edn. 2012,
Chapter 2 in which it has been laid down that inconsistency and repugnancy to be
avoided and provisions should be harmoniously construed, the author has observed
thus :
“It has already been seen that a statute must be read as a whole
and one provision of the Act should be construed with reference to
other provisions in the same Act so as to make a consistent enactment
of the whole statute. Such a construction has the merit of avoiding
any inconsistency or repugnancy either within a section or between a
section and other parts of the stature. It is the duty of the courts to
avoid “a head on clash” between two sections of the same Act and,
“whenever it is possible to do so, to construe provisions which
appear to conflict so that they harmonise”. It should not be lightly
assumed that “Parliament had given with one hand what it took away
with the other”. The provisions of one section of a statute cannot be
used to defeat those of another “unless it is impossible to effect
reconciliation between them”. The same rule applies in regard to
sub-sections of a section. In the words of GAJENDRAGADKAR,
J.: “The sub-sections must be read as parts of an integral whole
and as being interdependent; an attempt should be made in construing
them to reconcile them if it is reasonably possible to do so, and to
avoid repugnancy”. As stated by VENKATARAMA AIYAR, J. :
“The rule of construction is well settled that when there are in an
enactment two provisions which cannot be reconciled with each
other, they should be so interpreted that, if possible, effect should be
given to both. This is what is known as the rule of harmonious
construction”. That, effect should be given to both, is the very
essence of the rule. Thus a construction that reduces one of the
provisions to a “useless lumber” or “dead letter” is not harmonious
construction. To harmonise is not to destroy. A familiar approach in
all such cases is to find out which of the two apparently conflicting
provisions is more general and which is more specific and toPage 54
54
construe the more general one as to exclude the more specific. [South
India Corporation (P) Ltd. v. Secretary, Board of Revenue,
Trivandrum, AIR 1964 SC 207, p. 215 : 1964 (4) SCR 280; Weverly
Jute Mills Co. Ltd. v. Raymon & Co. (India) (Pvt.) Ltd, AIR 1963 SC
90 p.95: (1963) 3 SCR 209; J.K. Cotton Spinning & Weaving Mills v.
State of U.P., AIR 1961 SC 1170 p.1194: (1962) 1 SCJ 417: (1961) 3
SCR 185; Paradip Port Trust v. Their Workmen, AIR 1977 SC 36,
p.44: 1977 SCC (L&S) 253; U.P. State Electricity Board v.
Harishanker, AIR 1979 SC 65; (1978) 4 SCC 16: 1978 SCC (Lab)
481; Life Insurance Corporation of India v. D.J. Bahadur, AIR 1980
SC 2181, pp.2202, 2208; State of U.P. v. Renusagar Power Co., AIR
1988 SC 1737, p.1751: 1988 (4) SCC 59; State of Rajasthan v.
Gopikishan, supra, p.1756. See further Life Insurance Corporation
of India v. S.V. Oak, AIR 1965 SC 975, p.980: 1965 (1) SCR 403
(Compulsive provision will control a discretionary provision]. The
question as to the relative nature of the provisions general or special
has to be determined with reference to the area and extent of their
application either generally or specially in particular situations.
[Collector of Central Excise Jaipur v. Raghuvar (India) Ltd. JT 2000
(7) SC 99, p.111; (2000) 5 SCC 299: AIR 2000 SC 2027] The
principle is expressed in the maxims Generalia specialibus non
derogant, [General things do not derogate from special things.
Osborn’s Law Dictionary] and Generalibus specialia derogant
[Special things derogate from general things. Osborn’s Law
Dictionary]. If a special provision is made on a certain matter, that
matter is excluded from the general provision.[Venkateshwar Rao v.
Govt. of Andhra Pradesh, AIR 1966 SC 828: (1966) 2 SCR 172; CIT,
Patiala v. Shahzada Nand & Sons, AIR 1966 SC 1342, p. 1347:
(1966) 3 SCR 379; State of Gujarat v. Patel Ramajibhai Danabhai,
AIR 1979 SC 1098, p.1103; 1979 (3) SCC 347; State of Bihar v.
Yogendra Singh, AIR 1982 SC 882, p.886: (1982) 1 SCC 664;
Maharashtra State Board of Secondary and Higher Secondary
Education v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, p.47:
AIR 1984 SC 1543; State of Rajasthan v. Gopikishan, supra, p.1756].
Apart from resolving conflict between two provisions in the Act, the
principle can also be used for resolving a conflict between a
provision in the Act and a rule made under the Act. Further, these
principles have also been applied in resolving a conflict between two
different Acts and two provisions in the Constitution added by two
different Constitution Amendment Acts. and in the construction ofPage 55
55
statutory rules and statutory orders. But the principle, that a special
provision on a matter excludes the application of a general provision
on that matter, has not been applied when the two provisions deal
with remedies, for validity of plural remedies cannot be doubted.
Even if the two remedies happen to be inconsistent, they continue for
the person concerned to choose from, until he elects one of them.”
 (emphasis supplied)
It is apparent that the maxims Generalia specialibus non derogant and
Generalibus specialia derogant have to be applied in particular situations. If a
particular provision is made on a certain matter, that matter is excluded from the
general provision. Author has referred to the law as laid down by this Court, inter
alia, in Venkateshwar Rao v. Government of Andhra Pradesh AIR 1966 SC 828;
C.I.T. Patiala v. Shahzada Nand & Sons AIR 1966 SC 1342; State of Gujarat v.
Patel Ramajibhai Danabhai (1979) 3 SCC 347; State of Bihar v. Yogendra Singh
(1982) 1 SCC 664; and Maharashtra State Board of Secondary and Higher
Secondary Education v. Paritosh Bhupesh Kumar Sheth (1984) 4 SCC 27.
51. Even assuming that public street is also a street, considering the special
provisions contained in section 305, recourse can be had to the provision without
having adverting to the procedure prescribed under sections 78 and 79 of the Act
and the compensation in the case of action is taken under section 305 is provided
under proviso to section 305 and section 306 read with section 387 to which the
provisions of the Land Acquisition Act, 1894 have been made applicable for
determination. Section 387 provides for procedure in case compensationPage 56
56
determined under section 306 is not acceptable, dissatisfied claimants can have
resort to section 387 which require determination of dispute by
Panchayat/arbitration, and in case arbitration fails, parties can approach the District
Court which shall follow the procedure provided in Land Acquisition Act, 1894.
The provision of section 387 is very wide and covers all the cases in which an
agreement is not arrived at with respect to compensation or damages which are
under the Act directed to be paid. Section 387 would cover the provisions of
compensation payable under sections 305 and 306 of the Act of 1956. Sections 305
and 306 use the expression ‘reasonable compensation has to be paid’ which would
mean, reasonable on the principle acceptable in accordance with law. It cannot be
fanciful or arbitrary one as suggested by the appellants.
52. The submission raised by the appellants that for acquisition of land, sections
78 and 79 should be resorted to for the purposes mentioned in section 305 cannot
be accepted for yet another reason, if the provision as to public street is made
dependent upon the acquisition of land, the very purpose behind the provisions of
section 305 would be frustrated as well as the public interest, there is already a
regular line of public street fixed under development plan and is binding under
section 19(5) and section 25 of the Act of 1973. Various rights of ownership which
ordinarily vest in an owner, are restricted by the regional plan, development plan or
the town development scheme, as the case may be. User of the owner’s land,Page 57
57
property cannot be in derogation to any of them. Development plan is binding
upon the Corporation and local authorities and all concerned including the owners.
Though they can transfer the property but subject to such restrictions which the
property will carry with it. If the land falls in a regular line of public street, no
construction can be raised, no projection can be made by owner whereas it can be
removed or set back, as the case may be. In case acquisition is resorted to under
sections 78 and 79, public street can never be widened and the entire purpose of
preparation of Development Plan shall stand defeated.
53. What can be achieved by procedural safeguards in case the property is
acquired under the provisions of the Land Acquisition Act, 1894 or the Act of 2013
by way of holding inquiry, such exercise has already been taken care of while
preparing regional plan, development plan or the town improvement scheme. The
widening of the public street cannot brook any delay. The provisions contained in
section 387(5) which empower the Corporation to take possession after
determination of compensation by arbitration or by District Court, would be
applicable only to the acquisition resorted to under sections 78 and 79, particularly
under the provisions of section 79 and not to a case which is covered by the special
provisions contained in section 305 where the vesting is deemed to be by operation
of law as soon as there is deemed vesting, the area shall vest in the Corporation and
it shall be deemed to be a part of public street. Thus the provision of section 387(5)Page 58
58
is not attracted when it is deemed to be part of the public street on vesting in the
Corporation. The process under section 305 read with sections 306 and 387 is just,
fair and reasonable. The FAR is offered by the Corporation as well as
compensation and if it is not acceptable, recourse can be had to the provisions
contained in section 387 of the Act of 1956. It is not for this Court to adjudicate
upon the issue in which case FAR would be suitable as part of compensation and
what would be the impact of conversion of FAR into TDR i.e. Transferable
Development Right. Compensation in monetary terms is claimable under sections
305, 306 and 387. Thus, when recourse to section 305 is made by the Corporation,
it is not necessary to make acquisition under section 78 or 79 of the Act of 1956.
54. Provision of section 56 of the Act of 1973 has also been pressed into service
to contend that the authorities under the Act of 1973 are also required to acquire
the land by agreement or under the provisions of the Land Acquisition Act for
carrying out the purpose of development plan as such, this Court should record a
conclusion that the provisions of section 78/79 of the Act of 1956 should be
resorted to. Reliance has been placed on Afjal Imam v. State of Bihar & Ors.
(2011) 5 SCC 729 wherein this Court has considered the basic rule of harmonious
construction, when cross reference of relevant provisions should be made and in
order to reconcile two apparently inconsistent provisions, one can be read asPage 59
59
“subject to” the other and if necessary reading down of the provisions has to be
made.
We do not find any substance in the submission as for building line with
respect to public street, a specific provision is contained in section 305 which will
prevail over the general provisions as held by us. Thus the submission is rejected.
55. It was also submitted that when the law requires a thing to be done in a
particular manner, that thing can be done in that manner only and other modes of
doing it are excluded. For this reliance has been placed on the decisions in
Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111
on the following passage :
“40. The statutory interdict of use and enjoyment of the property
must be strictly construed. It is well settled that when a statutory
authority is required to do a thing in a particular manner, the same
must be done in that manner or not at all. The State and other
authorities while acting under the said Act are only creature of statute.
They must act within the four corners thereof.”
56. This Court’s decision in Laxmi Devi v. State of Bihar & Ors. (2015) 10 SCC
241 has been relied in which it has been laid down thus :
“16. The salient concomitants of Section 17(1) deserve
enumeration.
16.1. Firstly, the section is attracted even though an award has not
been made which, it appears to us, clearly indicates that the
completion of this exercise has not been obliterated or dispensed with
but has been merely deferred. An unambiguous and unequivocal
statement could have been made excluding the requirement of
publishing an award.Page 60
60
16.2. Secondly, it is available only on the expiration of fifteen days
from the issuance of Section 9 notice. This hiatus of fifteen days must
be honoured as its purpose appears to be to enable the affected or
aggrieved parties to seek appropriate remedy before they are divested
of the possession and the title over their land. The Government shall
perforce have to invite and then consider objections preferred under
Section 5-A, which procedure, as painstakingly and steadfastly
observed by this Court, constitutes the constitutional right to property
of every citizen; inasmuch as Section 17(4) enables the obliteration of
this valuable right, this Court has repeatedly restated that valid and
pressing reasons must be present to justify the invocation of these
provisions by the Government.
16.3. Thirdly, possession of the land can be taken only if it is
needed for public purpose, which term stands defined in the preceding
Section 3(f). A conjoint reading of Sections 17 and 3(f) makes it
apparent to us that urgency provisions cannot be pressed into service
or resorted to if the acquisition of land is for companies; however, we
must be quick to add that this question does not arise before us.
16.4. Fourthly, possession of such lands would vest in the
Government only when the foregoing factors have been formally and
strictly complied with. This section enables the curtailment of a
citizen’s constitutional right to property and can be resorted to only if
the provisions and preconditions are punctiliously and meticulously
adhered to, lest the vesting be struck down and set aside by the court
in its writ jurisdiction, on the application of Taylor v. Taylor (1875)
LR 1 Ch D 426 and several judgments of this Court which has
followed this decision (supra).”
There is no dispute with the aforesaid propositions but in the instant cases
the specific procedure prescribed for widening of the public street to remove the
projection in the regular line of public street has been adopted which is a
wholesome procedure. Thus there is no violation of law as the prescribed mode is
being followed.
In re : Development Plan and Town Planning Scheme : Page 61
61
57. It was also submitted that there is difference between acquisition and
reservation. A development plan merely creates a restriction on user of the property
and the land does not vest in the State or the development authority on publication
of the master plan/development plan. Reliance has been placed on the decision of
this Court in Girnar Traders (3) v. State of Maharashtra & Ors. (2011) 3 SCC 1.
Reference has been made to para 155 and the same is extracted hereunder:
“155. The Court has to keep in mind the clearly stated legal
distinction between reservation and designation on one hand and
acquisition on the other. These are well-defined terms used by the
legislature in both the enactments and they do not admit of any
synonymity or interchangeability. The reservation under the MRTP
Act necessarily may not mean and include acquisition. The acquisition
under the Land Acquisition Act may not necessarily mean and include
reservation. They are well-explained concepts within the legislative
scheme of the respective Acts. It may not be necessary at all for an
appropriate authority to always acquire the entire or part of the land
included in the planned development, while there may be cases where
the land is acquired for the purpose of completing planned
development. With this distinction in mind, let us, again, refer to some
of the relevant provisions of both the enactments.”
The aforesaid submission is too tenuous to be accepted. There is restriction
put on the ownership rights and in the area no construction can be raised
derogatory to the development plan/master plan. When the property vests is clearly
culled out in section 305, however the property is held by owner once a
development plan is prepared, subject to that use and it is not necessary to acquire
the land as already discussed by us for the purposes mentioned under section 305.
Section 305 is otherwise also a reasonable method of acquisition of the property
and it follows a detailed procedure for preparation of development plan/master
plan or a town improvement scheme, as the case may be, which involves
adjudicatory process and once action is taken under section 305, reasonable
compensation follows, special procedure as prescribed, is a complete Code in itself
and even if a person is not satisfied, he can claim adjudication under section 387
where the procedure of the Land Acquisition Act, 1894 is applicable.
58. It was submitted in Bhopal Municipality matters that in the absence of a
scheme having been framed under section 50 of the Act of 1973, the provisions of
section 305 of the Act of 1956 could not be invoked, prior statutory exercise under
section 291 thereof is necessary which has also not been done. Attention has also
been drawn to paragraphs 5.17, 5.18 and 5.19 of W.P. No.5682 of 2016. In para
5.17 it has been pleaded that if it is held that any existing street will be treated as
building line by the Commissioner, Municipal Corporation or for that matter that
the building line determined by the Commissioner shall be the final building line
for the purpose of section 305 then on that ground also section 305 would become
arbitrary, discriminatory and violative of Article 14 of the Constitution. It is
reiterated in para 5.17 that there has to be the building line determined only after
following the procedure and rigors of section 291. Again in para 5.18
non-compliance with the provisions of section 291 has been pleaded. In para 5.19
it has been pleaded that until the Corporation undertakes a statutory exercise ofPage 63
63
acquisition as mandated under the Act of 2013, they are not legally entitled to take
physical possession of the land. In our considered opinion the pleadings in paras
5.16, 5.17, 5.18 and 5.19 do not at all amount on fact or on legal aspect that there
was no scheme under the provisions of sections 49 and 50 framed by the Bhopal
Development Authority under the Act of 1973. Thus the respondent-Corporation
was not required to reply in the matter of Bhopal what has not been averred by the
appellants with respect to framing of the scheme under sections 49 and 50 in the
aforesaid writ petitions.
59. The interpretation suggested upon section 292, as to the expression scheme
under section 291 of the Act of 1956 or only to a scheme under section 49/50 of the
Act of 1973 cannot be accepted. We have also discussed the provisions of the Act
of 1973 and the provisions of section 292 of the Act of 1956. Under the Act of
1973, there is a regional plan, development plan or town development scheme they
have to be understood included in expresssion ‘scheme’ under the provisions of
section 292.
60. On merits also, submission based upon sections 49 and 50 of the Act of 1973
is found to be untenable. Development plan itself is binding and has to be
implemented by the Corporation not only under the provisions of section 292 but
also under the provisions of section 66(1)(y) of the Act of 1956 which mandates a
duty upon the Corporation for fulfilling any obligation imposed by the Act or underPage 64
64
any other law for the time being in force. Provision of section 66(1) is extracted
hereunder :
“66. Matters to be provided for by Corporation.- (1) The
Corporation shall make adequate provision, by any means or measures
which it may lawfully use or take, for each of the following matters,
namely:-
xxx xxx xxx
(y) fulfilling any obligation imposed by this Act or any other law for
the time being in force;”
Thus Corporation while taking action, is simply carrying out the mandate of
sections 19(5), 25 and other provisions of the Act of 1973. Framing of the scheme
under section 291 as already held, is precluded by virtue of the provisions of
section 292, in view of the existence of development plan which is final as to width
of road or town development scheme, as the case may be.
61. It was also submitted that Town Planning and Municipal Institutes are
regulating and restricting the use of private property under the aforesaid Acts. They
are “expropriatory legislation”. Thus they are liable to be construed strictly as laid
down in Chairman, Indore Vikas Pradhikaran v. Pure Industrial Coke &
Chemicals Ltd. & Ors. (2007) 8 SCC 705. In the said case the decision in
Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai & Ors. (2005) 7 SCC
627 has been referred to, wherein this Court has considered the question and laid
down thus :Page 65
65
“59. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai (2005) 7 SCC 627 construing Section 5-A of the Land
Acquisition Act, this Court observed: (SCC pp. 634-35, para 6-7)
“6. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought to
be acquired. Having regard to the provisions contained in
Article 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 (1995) supp (1) SCC 596)”
It was further stated: (SCC p. 640, para 29)
“29. The Act is an expropriatory legislation. This Court in
State of M.P. v. Vishnu Prasad Sharma AIR 1966 SC 1593
observed that in such a case the provisions of the statute should
be strictly construed as it deprives a person of his land without
consent. [See also Khub Chand v. State of Rajasthan AIR 1967
SC 1074 and CCE v. Orient Fabrics (P) Ltd. (2004) 1 SCC
597]
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.”
In State of Rajasthan v. Basant Nahata (2005) 12 SCC 77 it
was opined: (SCC p. 102, para 59)
“In 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 300-A of the Constitution.”Page 66
66
In State of U.P. v. Manohar (2005) 2 SCC 126 a Constitution
Bench of this Court held: (SCC p. 129, paras 7-8)
“7. 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.—No person shall be deprived of his
property save by authority of law.’
8. 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.”
In Jilubhai Nanbhai Khachar v. State of Gujarat (supra) the law
is stated in the following terms: (SCC p. 622, para 34)
“34. 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 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: (SCC p. 627, para 48)
“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 statutoryPage 67
67
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.”
Rajendra Babu, J. (as the learned Chief Justice then was) in Sri
Krishnapur Mutt v. N. Vijayendra Shetty (1992) 3 Kar LJ 326
observed: (Kar LJ p. 329, para 8)
“8. 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 person 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.”
We have applied the rule of strict construction and found the action is
permissible under the provisions of section 305 as the Corporation has
implemented the provisions of development plan, it is bound to implement thePage 68
68
development plan prepared after following the exhaustive procedure consistent
with the principles of natural justice, and is in the larger public interest.
62. Learned counsel has also referred to the decision of this Court in Chairman,
Indore Vikas Pradhikaran (supra) wherein a question arose with respect to the
declaration made under section 50(2) of the Act on the ground that unless a
development plan for an area is published and comes into operation, a draft
development scheme cannot be published by the Development Authority under
section 50(2) of the Act of 1973. This Court observed that the area in question with
respect to which the scheme had been framed under section 50 had not been
properly included in the area of operation of the development authority under the
Act of 1973 as such the action taken by way of its intention to frame a town
planning scheme or otherwise was wholly illegal, without jurisdiction and a nullity.
This Court also held that a draft development plan which has not attained finality
cannot be held to be determinative of the rights and obligations of the parties and
can never be implemented and end use of the land is not frozen until a final
sanction plan comes into force. This Court also held that the power to freeze the
land use under section 50(1) read with section 53 of the Act of 1973 can only be
validly exercised for implementing a final sanctioned development plan. In the
instant cases it is not in dispute that there is a final sanctioned development plan
for Bhopal as well as for Indore and pursuant thereto action has been taken underPage 69
69
section 305. In Indore the town development scheme exists and for Bhopal,
absence of town development scheme under sections 49 and 50 has not been
pleaded by the appellants. This Court in Chairman, Indore Vikas Pradhikaran
(supra) has laid down thus :
“33. The Act envisages the following steps which are required to be
complied with:
(a) Constitution of a planning area by notification under Section 13.
(b) Compliance with the detailed procedure set out under Sections 14
to 19, leading to sanction of the development plan under Section 19.
The said procedure envisages compliance with 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 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 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.
41. 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 in some detail 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 sweepPage 70
70
the draft development plan or only final development plan a little
later, but it may be noticed that once a valid 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
finalising 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 finalised is provided but the same can
be subject to modification by the State which ordinarily should be
with a view to deal with the same in line with the final development
plan.
72. Land use, development plan and zonal plan provided for the plan
at macro-level whereas the town planning scheme is at a micro-level
and, thus, would be subject to development plan. It is, therefore,
difficult to comprehend that broad based macro-level planning may
not at all be in place when a town planning scheme is prepared.
73. Once a final plan comes into force, steps inter alia are taken for
acquisition of the property. Section 34 of the Act takes care of such a
contingency. The town development scheme, as envisaged under
Section 49 of the Act, specifically does it. Out of nine clauses
contained in Section 49, six relate to acquisition of land for different
purposes. Clauses (v), (viii) and (ix) only refer to undertaking of such
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.Page 71
71
76. 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 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 finalised 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.
78. 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.”
This Court has emphasized that it is the development plan which determines
the manner of usage of the land at the micro level. This Court has also emphasized
that development plan to be implemented should be final development plan. The
very scheme of the Act postulates that in case development plan has been prepared,
may require for such development plan micro planning wherever it is necessary
and there may be certain areas where no micro planning is contemplated in view of
the specific provisions contained in the development plan such as width of the road
etc. which has been determined finally. Once the final development plan does not
require micro exercise and is in force, it is not open to the development authority toPage 72
72
redo that exercise under section 49/50 while preparing the scheme at micro level as
it is not authorized to alter/modify the said provision of the development plan as it
has no power to alter or modify the width of the road or building line as fixed in
the development plan and is bound to carry out the same. For such matters which
do not require micro-planning, it would not be necessary to undertake exercise of
section 49 read with section 50, publish a draft plan, under section 50(3) invite
objections and suggestions and to decide the same issue of development plan once
over again which is final, conclusive and binding and requires no further planning.
If any modification of development plan is permitted, it would defeat the mandate
of sections 19(5) and 25 of the Act of 1973, and in case the authorities cannot alter
the width of the road or modify development plan, it would be a futile exercise and
exercise in futility is not envisaged by law. The decision of this Court in Indore
Vikas Pradhikaran (supra) reinforces and buttresses our conclusion that it is a
development plan which has to prevail.
63. The appellants have also placed reliance on Rajendra Shankar Shukla &
Ors. v. State of Chhattisgarh & Ors. (2015) 10 SCC 400 to contend that the Act of
1973 provides for arrangement, the development plan is an umbrella which
encompasses within its fold a zonal plan which is implemented through Town
Development Scheme. This Court has laid down thus :
“65. As per the factual averments of this case, Respondent 2
RDA, without any resolution of the Board, on its own motion,Page 73
73
addressed a Letter dated 31-7-2006 and approached the State
Government for change of land use because it had to propose the
township in Tikrapara, Devpuri and Boriakhurd Villages. Thereafter,
KVTDS was also proposed, published, finalised and approved before
the land use was changed by the State Government. Under the
provisions of the 1973 Act, the development plan/Raipur Master Plan
(Revised) 2021 that is prevailing, Respondent 2 RDA as well as the
State Government gave primacy to KVTDS and sought changes in the
master plan to suit KVTDS. This is impermissible in law. The finding
recorded by the High Court of Chhattisgarh, Bilaspur, in its judgment
in this regard that no finality can be attached to the master plan is an
erroneous finding. Accordingly, we are of the opinion that the town
development scheme which is KVTDS in the present case, was not
prepared in accordance with Section 50 of the 1973 Act and we hold
that KVTDS is ultra vires the 1973 Act.
 Answer to Point (iii)
66. Though we have answered Point (ii) in favour of the
appellant, we intend to mention other grounds too, which render
KVTDS as illegal. The learned Senior Counsel on behalf of the
appellants contended that in the absence of a zonal plan, a town
development scheme cannot be framed by Respondent 2 RDA, and
therefore, the acquisition proceedings of the land of the appellants
cannot be allowed to sustain.
67. The town development scheme is always subservient to the
master plan as well as the zonal plan, as provided under Section 17 of
the 1973 Act, which reads as under:
“17. Contents of development plan.—A development
plan shall take into account any draft five year and annual
development plan of the district prepared under the Madhya
Pradesh Zila Yojana Samiti Adhiniyam, 1995 (19 of 1995) in
which the planning area is situated….”
68. Master plan falls within the category of broad development
plans and is prepared only after taking into account the Annual
Development Reports prepared by constitutionally elected bodies of
local panchayats and municipalities, etc. A zonal plan is mandated to
be prepared only after the publication of the development plan.
Section 20 of the Act reads thus:
“20. Preparation of zonal plans.—The local authority
may on its own motion at any time after the publication of thePage 74
74
development plan, or thereafter if so required by the State
Government shall, within the next six months of such
requisition, prepare a zoning plan.”
Further, Section 21 of the Act reads thus:
“21. Contents of zoning plan.—The zoning plan shall
enlarge the details of the land use as indicated in the
development plan….”
(emphasis supplied)
Thus, it is evident from the language of Sections 20 and 21 of the Act,
that a zonal plan can be prepared only in adherence to the
development plan which in the present case is the Raipur Master Plan
of 2021.
69. Next, Section 49 of the Act which provides for the
provisions for which a town development scheme can be prepared,
has to be read along with Section 21 of the Act, which clearly
mentions that the land required for acquisition by the Town and
Country Development Authority for the purpose of any development
scheme has to be laid down in the zonal plan.
70. Therefore, a combined reading of Sections 17, 21 and 49
lays down that the development plan is the umbrella under which a
zonal plan is made for the city. The zonal plan in turn allocates the
land which could be acquired for town development schemes.
74. In the case in hand, KVTDS has been prepared in the
absence of a zonal plan. It is not possible to define the utilisation of
land under the town development scheme unless the zonal plan
formulated by the local authority describes with sufficient
particularity the details for which the broadly indicated use of land in
the development plan may be put. Respondent 2 RDA is not permitted
to either usurp or bypass the power vested with the local authorities
for preparing town development scheme in the absence of zoning plan
merely on the ground that the local authority did not exercise its
constitutional power in preparing the zonal plan following the
direction of Respondent 1 State Government under Section 20 of the
1973 Act. A mere glance at the master plan would clearly go to show
that it does not set out the detailed land use with sufficient particulars.
Therefore, the framing of a zonal plan by local authority in laying out
a detailed plan of land use with sufficient particulars is a sine qua non
under the provisions of the Act.Page 75
75
75. The legal contention urged on behalf of the respondents that
a town development scheme can be framed pursuant to the
development plan without there being a zonal plan, is not sustainable.
The learned Senior Counsel, Ms Pinky Anand and Mr Prashant Desai
on behalf of the respondents relied upon the Act pari materia for the
State of Gujarat where the Town Planning Act does not contemplate a
zonal plan, and which contemplates “DP-TP”.
There is no dispute with the law laid down by this Court and town planning
scheme has to be subservient to development plan/zonal plan. Development plan
which does not require micro planning is binding and can be implemented.
In re : Vires of sections 305 and 306 of the Act of 1956 :
64. It was submitted that exercising the power for acquiring land by following
the procedure under sections 305 and 306 suffers from arbitrariness and thus
violative of Articles 14 and 19 of the Constitution of India. Reliance has been
placed on the decision in Suraj Mall Mohta & Co. v. A.V. Visvanatha Sastri & Anr.
AIR 1954 SC 545. In the said case the provision of section 5(4) of the Taxation on
Income (Investigation Commission) Act, 1947 was struck down on the ground of
being violative of Article 14. Submission advanced was that it gave arbitrary power
to the Commission to pick and choose and the clause was highly discriminatory in
character inasmuch as any evasion whether substantial or insignificant came within
its ambit as well as within the purview of section 34 of the Indian Income Tax Act.
This Court has observed that it is open to the State to make the classification to
determine who should be regarded as a class for the purpose of legislation and in
relation to a law enacted on a particular subject but the classification to be
permissible must be based on some real and substantial distinction bearing a just
and reasonable relation to the objects sought to be attained and it cannot be made
arbitrarily and without any substantial basis. In our opinion, the provision of
section 305 when it deals with the public streets and removal of building falling in
regular line is a wholesome one and being a special provision, based on
classification made for the purpose of section 305 as to public street cannot be said
to be suffering from vice or discrimination and violative of Article 14. The
procedure under section 305 of the Act of 1956 cannot be said to be onerous or
harsh and it cannot be tested on the anvil of provisions of section 78/78 of the Act
of 1956 or section 56 of the Act of 1973.
65. Reliance has also been placed on the decision in Nagpur Improvement Trust
& Anr. v. Vithal Rao & Ors. (1973) 1 SCC 500. To contend on the strength of the
averment made in amendment application filed before the High Court in W.P.
No.5682/2016 that another agency is acquiring the land within 1 km. periphery of
the site of the BRTS corridor by following the procedure under the provisions of
the Act of 2013. Thus the appellants are being discriminated. Para 5.22 of the
amendment application, Annexure P-17 of SLP [C] Nos.14493-96/2016, has been
relied on by the learned counsel. What has been stated is extracted hereunder from
the aforesaid pleadings : Page 77
77
“5.22 That from the above, therefore the public notice
dated 22.04.2016 (received on 24.04.2016) by the petitioners is
also bad in law and deserves to be quashed by this Hon’ble
Court. It is further stated on affidavit that within a 1 kilometer
periphery of the lands of the petitioner, the Capital Project
Administration (CPA) is constructing a coordination link road
from the area Bawariakala, E-8 extension to Hoshangabad
Road, which area is also falling within the municipal limits of
Bhopal Municipal Corporation. There the land owners would be
entitled to compensation as per the new regime under the newly
enacted Right To Fair Compensation And Land Acquisition
Act 2013. However in the case of the petitioners, they would be
grossly prejudiced, as there is no indication as to how much
compensation they would receive u/s 305, 306 of the Act of
1956. Therefore the regime of Act of 1956 is completely
discriminatory in nature.”

From the aforesaid pleadings it cannot be made out that the other area where
acquisition is made, is a case of public street under sections 305 and 306, it relates
to construction of link road by the Capital Project Administration where acquisition
will be required. It is not pleaded in the aforesaid paragraph that the other area is
falling in the regular line of public street as per development plan, in the absence
of such pleadings, it is not open to the appellant to raise the plea of discrimination
at all. Even otherwise we have found provisions of section 305/306 to be fair, just
and reasonable and merely because for other places some other procedure has been
resorted to, cannot be a ground to urge discrimination. Hence, the submission
based upon the dictum of this Court in Nagpur Improvement Trust (supra) has no
legs to stand. Page 78
78
66. Reliance has also been placed on the decision in P. Vajravelu Mudaliar v.
The Special Deputy Collector, West Madras AIR 1965 SC 1017. In the said
decision this Court came to the conclusion that on a comparative study of Land
Acquisition Act, 1894 and Land Acquisition (Madras Amendment) Act, it was clear
that if it becomes clear that if a land is acquired for a housing scheme under the
Amending Act, the claimant gets a lesser value than he would get for the same land
or a similar land if it is acquired for a public purpose like hospital under the
Principal Act. The classification thus sought to be made by the Land Acquisition
(Madras Amendment) Act between persons whose lands are acquired for other
public purposes has no reasonable relation to the object sought to be achieved.
Thus this Court has held that under the Amending Act, discrimination cannot be
sustained on the principle of reasonable classification. The ratio has no application
to the instant cases as the classification is found to be quite appropriate. Apart from
that after the abolition of ‘the right to property’ as a fundamental right, the
provisions are quite consistent with section 300A and reasonable compensation is
paid under sections 305 and 306 which if not acceptable, the remedy of arbitration
and approaching the District Court under section 387 is available to seek the
compensation which has to be on the basis of procedure prescribed in the Land
Acquisition Act. No such impermissible classification is made in the instant case as
made by the Madras Amendment Act which was struck down by this Court. Page 79
79
67. It was further submitted that sections 305 and 306 of the Act of 1956 fail to
provide any rational, reasonable, relevant principle for determination of
compensation for deprivation of property of the landowner and therefore violative
of Articles 14, 19, 21 and 300-A of the Constitution of India and they are liable to
be struck down. Reliance has been placed on a Constitution Bench decision of this
Court in K.T. Plantation Pvt. Ltd. & Anr. v. State of Karnataka (2011) 9 SCC 1.
This Court has considered the various questions and interpreted the provisions of
Articles 300-A, 14, 19, 21, 30(1-A) and other provisions and laid down the judicial
scope of interference of a statute depriving a person of his property. It has been laid
down that though right to compensation is inbuilt in Article 300A of the
Constitution of India, the obligation to pay compensation would depend upon the
terms of the statute and the legislative policy. Statute providing for no
compensation, nil compensation or illusory compensation must be just, fair and
reasonable in terms of Articles 14, 19(1)(g), 21, 26(b), 30(1-A) and other
provisions of the Constitution. This Court also considered distinction between no
compensation and nil compensation and pointed out onus to establish validity of
law in such cases lies on the State. Court cannot however based merely on its own
opinion, strike down such a law or statutory provision. It was further held that the
right to compensation cannot be read into Schedule VII List III, Entry 42 which is
not ambiguous at all. The statutes depriving a person of his property are subject toPage 80
80
judicial review by constitutional courts on the grounds laid down by this Court. It
was held that the concerned Karnataka State Act having received the Presidential
assent under Article 31-A was immune from challenge under Articles 14 and 19.
This Court also laid down that when the validity of acquisition of property is
questioned, grounds for challenge to a statute enacted to acquire property but the
statute is not protected by Articles 31-A, 31-B and 31-C of the Constitution of
India, after deletion of Article 19(1)(f), such statutes can be challenged for
violation of Article 14, violation of basic structure of Constitution, violation of
Rule of Law which amounts to violation of basic structure or for lack of legislative
competence. This Court has also laid down that when validity of acquisition of
property is under a statute which is guarded by protective umbrella of Articles
31A, 31B and 31C, such statutes can still be challenged under Article 32 or 226 for
violation of rule of law if the violation is of serious nature which undermines basic
structure of the Constitution, violation of the basic structure of the Constitution or
for lack of legislative competence. In I.R. Coelho (Dead) by LRs. V. State of T.N.
(2007) 2 SCC 1, this Court laid down that statutes protected by Articles 31A, 31B
and 31C would be as part of basic structure though not Article 14 or Article 19
simpliciter. In K.T. Plantation (P) Ltd. (supra), this Court has considered the
question thus :
“189. Requirement of public purpose, for deprivation of a
person of his property under Article 300-A, is a precondition, but noPage 81
81
compensation or nil compensation or its illusiveness has to be justified
by the State on judicially justiciable standards. Measures designed to
achieve greater social justice, may call for lesser compensation and
such a limitation by itself will not make legislation invalid or
unconstitutional or confiscatory. In other words, the right to claim
compensation or the obligation to pay, though not expressly included
in Article 300-A, it can be inferred in that article and it is for the State
to justify its stand on justifiable grounds which may depend upon the
legislative policy, object and purpose of the statute and host of other
factors.
190. Article 300-A would be equally violated if the provisions
of law authorising deprivation of property have not been complied
with. While enacting Article 300-A Parliament has only borrowed
Article 31(1) (the “Rule of Law” doctrine) and not Article 31(2)
(which had embodied the doctrine of eminent domain). Article 300-A
enables the State to put restrictions on the right to property by law.
That law has to be reasonable. It must comply with other provisions of
the Constitution. The limitation or restriction should not be arbitrary
or excessive or what is beyond what is required in public interest. The
limitation or restriction must not be disproportionate to the situation or
excessive.
191. The legislation providing for deprivation of property under
Article 300-A must be “just, fair and reasonable” as understood in
terms of Articles 14, 19(1)(g), 26(b), 301, etc. Thus in each case,
courts will have to examine the scheme of the impugned Act, its
object, purpose as also the question whether payment of nil
compensation or nominal compensation would make the impugned
law unjust, unfair or unreasonable in terms of other provisions of the
Constitution as indicated above.
193. Right to property no more remains an overarching
guarantee in our Constitution, then is it the law, that such a legislation
enacted under the authority of law as provided in Article 300-A is
immune from challenge before a constitutional court for violation of
Articles 14, 21 or the overarching principle of the rule of law, a basic
feature of our Constitution, especially when such a right is not
specifically incorporated in Article 300-A, unlike Article 30(1-A) and
the second proviso to Article 31-A(1).
194*. Article 31-A was inserted by the First Amendment Act,
1951 to protect the zamindari abolition laws and also the other typesPage 82
82
of social, welfare and regulatory legislations affecting private
property. The right to challenge laws enacted in respect of
subject-matter enumerated under Article 31-A(1)(a) to (g) on the
ground of violation of Article 14 was also constitutionally excluded.
198. Article 300-A, unlike Articles 31-A(1) and 31-C, has not
made the legislation depriving a person of his property immune from
challenge on the ground of violation of Article 14 or Article 21 of the
Constitution of India, but let us first examine whether Article 21 as
such is available to challenge a statute providing for no or illusory
compensation and, hence, expropriatory.
200. The question of applicability of Article 21 to the laws
protected under Article 31-C also came up for consideration before
this Court in State of Maharashtra v. Basantibai Mohanlal Khetan
(1986) 2 SCC 516, wherein this Court held that Article 21 essentially
deals with personal liberty and has little to do with the right to own
property as such. Of course, the Court in that case was not concerned
with the question whether the deprivation of property would lead to
deprivation of life or liberty or livelihood, but was dealing with a case,
where land was acquired for improving living conditions of a large
number of people. The Court held that the land ceiling laws, laws
providing for acquisition of land for providing housing
accommodation, laws imposing ceiling on urban property, etc. cannot
be struck down by invoking Article 21 of the Constitution.”
It is apparent from the aforesaid dictum that Article 300A enables the State
to put restrictions on the right by law but the same should not be arbitrary or
excessive or beyond what is required in public interest. The imposition of
restriction must not be disproportionate to a situation or statute. Legislation
providing for deprivation of property under Article 300A must be just, fair and
reasonable. Thus, it cannot be said that illusory compensation is provided under
section 306 read with section 387. The decision renders no help to the causePage 83
83
espoused on behalf of the appellants and on a closer scrutiny, rather counters it.
Based on the aforesaid principles we find no malady in the provisions in question
which may be required to be cured.
68. Reliance has also been placed on the decision of this Court in Rajiv Sarin &
Anr. v. State of Uttarakhand & Ors. (2011) 8 SCC 708 in which this Court has laid
down that adequacy of compensation cannot be questioned before a court of law
but at the same time compensation cannot be illusory and that there cannot be a
situation of no compensation to a person who is deprived of his property. The
Court held that awarding no compensation attracts the vice of illegal deprivation of
property. This Court has laid down that when the State exercises power of
acquisition of private property it can take possession of the private property for
public purpose. It does not require payment of market value or indemnification to
the owner of the property expropriated. Payment of market value in lieu of
acquired property is not a condition precedent or sine qua non for acquisition.
Adequacy of compensation cannot be questioned in a court of law but at the same
time compensation cannot be illusory. In Rajiv Sarin (supra), this Court has laid
down thus :
“78. When the State exercises the power of acquisition of a
private property thereby depriving the private person of the property,
provision is generally made in the statute to pay compensation to be
fixed or determined according to the criteria laid down in the statute
itself. It must be understood in this context that the acquisition of
property by the State in furtherance of the directive principles of StatePage 84
84
policy is to distribute the material resources of the community
including acquisition and taking possession of private property for
public purpose. It does not require payment of market value or
indemnification to the owner of the property expropriated. Payment of
market value in lieu of acquired property is not a condition precedent
or sine qua non for acquisition. It must be clearly understood that the
acquisition and payment of amount are part of the same scheme and
they cannot be separated. It is true that the adequacy of compensation
cannot be questioned in a court of law, but at the same time the
compensation cannot be illusory.
82. A distinction and difference has been drawn between the
concept of “no compensation” and the concept of “nil compensation”.
As mandated by Article 300-A, a person can be deprived of his
property but in a just, fair and reasonable manner. In an appropriate
case the court may find “nil compensation” also justified and fair if it
is found that the State has undertaken to take over the liability and
also has assured to compensate in a just and fair manner. But the
situation would be totally different if it is a case of “no compensation”
at all.”
Instant is not a case of no compensation. It cannot be said to be a case of
illusory compensation. In distinction to these terms the phrase used in sections 305
and 306 is ‘reasonable compensation’. This Court has laid down in Rajendra
Shankar Shukla (supra) itself that the Land Acquisition Act envisages payment of
just and reasonable compensation and qualifies the test of Article 300A.
69. Reliance has also been placed on Rustom Cavasjee Cooper v. Union of India
(1970) 1 SCC 248 to contend that the law must specifically either fix the amount of
compensation payable or must lay down the principle/s regarding the same. The
Legislature cannot be treated as conclusive and its objective can always be testedPage 85
85
on such principle. The principal must award to the owner the equivalent of the
property he is deprived for with its existing advantages and potentialities, including
its benefit in the present as well as in future. The money value on the date of
expropriation of property must be considered while judging the validity of the
concerned enactment. The relevant provisions contained in sections 305, 306 and
387 of the Act of 1956 cannot be said to be violative of the aforesaid principles laid
down by this Court in the said decision as the amount of compensation payable has
been specified and the principles regarding the same have been fairly culled out.
70. The provisions of the Act of 1956 cannot be said to be violative of the
principles or dictum laid down by this Court in the aforesaid decisions rather
qualify to them and cannot be said to be violative of Articles 14 and 19. The
provisions of sections 305 and 306 cannot be read in isolation. It has to be read
with wholesome provision of section 387 and what is contemplated under section
387 has to be taken to be the principle of reasonable compensation even in sections
305 and 306. Monetary value has to be worked out and it can be balanced with
FAR in appropriate cases which is quite reasonable method of arriving at
compensation as discussed hereafter.
71. It was submitted by the respondents that with respect to the principle of
determination of compensation, a Constitution Bench of this Court has considered
more or less similar provision contained in sections 212 and 216 of the BombayPage 86
86
Provincial Municipal Corporation Act, 1949. It was found to have qualified to
section 299 of the Government of India Act in Municipal Corporation of the City
of Ahmedabad & Ors. v. State of Gujarat & Ors. (1972) 1 SCC 802. The question
of payment of compensation for acquiring the land lying within line of public street
came up for consideration. A question arose whether Corporation is liable to
provide compensation. First proviso to section 216(1) which provided for increase
or decrease in value in the case of set-back and adjustment of compensation
accordingly. Question also came up for consideration whether principle of willing
seller and willing buyer is applicable in such a situation, and what is the meaning
of full indemnity in accordance with the norms, and to what extent such provisions
are justiciable ? Section 210 of the said Act contains a similar provision with
respect to removal of project in the regular line of a public street. For the loss
caused to the owner provision was made for compensation under section 216 of the
Bombay Provincial Municipal Corporation Act, 1949, same is extracted hereunder:
“7. For the loss thus caused to the owner by the action of the
Commissioner, provision was made for payment of
compensation under Section 216 which is as follows:
“216.(1) Compensation shall be paid by the Commissioner
to the owner of any building or land required for a public street
under Sections 211, 212, 213 or 214 for any loss which such
owner may sustain in consequence of his building or land being
so acquired and for any expense incurred by such owner in
consequence of the order made by the Commissioner:
Provided that —Page 87
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(i) any increase or decrease in the value of the remainder of
the property of which the building or land so acquired formed
part likely to accrue from the set-back to the regular line of the
street shall be taken into consideration and allowed for in
determining the amount of such compensation;
(ii) if any such increase in value exceeds the amount of loss
sustained or expenses incurred by the said owner, the
Commissioner may recover from such owner half the amount of
such excess as a betterment charge.”
Other provisions of sections 389, 390 and 391 of the Bombay Provincial
Municipal Corporation Act, 1949 also came up for consideration which are
contained in para 8 of the report, same are extracted hereunder :
“8. Chapter XXIV of the Act deals with the subject of
compensation generally. Section 389(1) provides as follows:
“389. (1) In the exercise of the powers under the following
provisions of this Act by the Commissioner or any other
municipal officer or servant or any other person authorised by
or under this Act to execute any work, as little damage as can
be shall be done and compensation assessed in the manner
prescribed by or under this Act shall be paid to any person who
sustains damage in consequence of the exercise of such powers,
namely,.…
(f) acquiring any building or land required for a public street
— under Section 216.”
Section 390 is as follows:
“Subject to the provisions of this Act, the Commissioner or
such other officer as may be authorised by him in this behalf
shall, after holding such inquiry as he thinks fit, determine the
amount of compensation to be paid under Section 389.”
This determination, however, is not final because two appeals
are provided. Under Section 391 it is provided as under:
“Any person aggrieved by the decision of the Commissioner
or other officer under Section 390 may within a period of one
month, appeal to the Judge in accordance with the provisions of
Chapter XXVI.”Page 88
88
“The Judge” means under Section 2, clause (29) the Judge of
the Court of Small Causes in the City of Ahmedabad. Section
411 provides for a second appeal to the District Court. It says
“An appeal shall lie to the District Court (aa) from a decision of
the Judge in an appeal under Section 391 against an assessment
of compensation under clause (f) of sub-section (1) of Section
389”. As regards the procedure to be followed in respect of
these appeals, provision is made in Section 434 sub-section (1)
whereof is “Save as expressly provided by this Chapter
(Chapter XXVI) the provisions of the Code of Civil Procedure,
1908, relating to appeals from original decrees shall apply to
appeals to the Judge from the orders of the Commissioner and
relating to appeals from appellate decrees shall apply to appeals
to the District Court”.
This Court on due consideration of the aforesaid provisions has held that the
Commissioner is required to determine the compensation first, thereafter if the
owner is satisfied he can approach the Court of Small Causes or the District Judge.
The provisions of section 212 were questioned on the ground that they were
violative of section 299 of the Government of India Act, 1935. This Court has laid
down that sections 216 and 389 provide for indemnification for the loss caused to
be made to the owner of the property or other interests affected by the exercise of
power under section 212. This Court has laid down thus :
“13. We are in agreement with the view of the High Court that
the Corporations Act does provide for the payment of compensation
for the property acquired. We have only to refer to Section 216 and
Section 389 of the Act for this purpose. Section 216(1) clearly lays
down that compensation shall be paid by the Commissioner to the
owner of any building or land required for public street under Sections
211, 212, 213 and 214 for any loss which such owner may sustain in
consequence of his building or land being so acquired, and for any
expense incurred by such owner in consequence of the order made byPage 89
89
the Commissioner. Then Section 389(1) provides that compensation
assessed in the manner prescribed by or under the Act shall be paid to
any person who sustains damage in consequence of the exercise of
such power, namely, “(f) acquiring any building or land required for a
public street under Section 216”. The two sections read together make
it clear that full indemnification in terms of money for the loss caused
is to be made to the owner of the property or other interests affected
by reason of the exercise of power under Section 212. Under the latter
section what is acquired for the purposes of the street is the land of the
owner which falls within the regular line of the street. Several
provisions are made in Chapter XIV for the widening of streets within
the limits of the Corporation. With the enormous increase in traffic in
the more congested parts of a growing City, Municipal authorities are
constantly under pressure to widen the streets and one of the several
methods prescribed in Chapter XIV is contained in Section 212. The
regular line of the street as prescribed under Section 210 often passes
through the properties of owners abutting on the streets and it is
impossible to widen the streets unless parts of lands belonging to the
owners are acquired. Sometimes a building or a structure or part of it
stands on such land and unless that portion of the building which falls
within the line is removed the acquisition of the land for the purpose
of the street is not possible. Therefore, in the first instance the section
requires that the Commissioner shall issue a show-cause notice why
the building or a part of the building which falls within the line of
street should not be pulled down with a view to release the land
underneath for the purposes of the street. If after hearing the owner
the Commissioner is of the opinion that the building or part thereof
should be pulled down, he must obtain the approval of the Standing
Committee and then serve a notice on the owner to pull down the
offending building or part of building within a certain time. If the
owner cooperates, he will himself remove the offending structure and
release the land underneath it for being absorbed in the street. If he
does not, the Commissioner is empowered to pull down the offending
structure at the cost of the owner. Then sub-section (4) of Section 212
provides that the Commissioner shall at once take possession on
behalf of the Corporation of the portion of the land within the said line
(line of the public street) theretofore occupied by the said building,
and such land shall thenceforward be deemed a part of the public
street and shall vest as such in the Corporation. The provisions of
Section 212, therefore, clearly declare that what is acquired under thatPage 90
90
section is the land lying within the line of the public street. The
technical question as to whether there is acquisition of the building
when the owner himself does not pull down the offending part of the
structure but the Commissioner does it at the owner’s expense is not
necessary for the disposal of the question whether the Act provides for
the payment of compensation. Since every kind of loss is required to
be compensated as a consequence of the order passed by the
Commissioner under Section 216 of the Act, the question whether the
Act need have provided for compensation as on the acquisition of the
building or a part of the building which is pulled down under Section
212, does not survive. The owner has to be compensated for every
deprivation or loss and, therefore, prima facie it must be held that the
Corporations Act provides for the payment of compensation for the
property acquired.
14. It was, however, argued that the two provisos to sub-section
(1) of Section 216 when given effect to may not only nullify the
direction given in sub-section (1) for payment of compensation but
also in certain contingencies compel the owner to pay the Corporation
something out of his own pocket. When sub-section (1) provides for
payment of compensation for the loss suffered it provides for adequate
indemnification or compensation. When such compensation is
reduced in the contingencies visualized in the two provisos the
compensation, it was submitted, may turn out to be illusory and the
provision for the payment of compensation an empty assurance.
Proviso (1) prescribes that “any increase or decrease in the value of
the remainder of the property of which the building or land so
acquired formed part likely to accrue from the set-back to the regular
line of the street shall be taken into consideration and allowed for in
determining the amount of such compensation”. Proviso (ii) states that
“if any such increase in the value exceeds the amount of loss sustained
or expenses incurred by the said owner, the Commissioner may
recover from such owner half the amount of such excess as a
betterment charge”. Proviso (i) implies that the compensation payable
under sub-section (1) is liable to be increased or reduced after the
set-back. It envisages that by reason of the set-back or the widening of
the street the property which still remained with the owner is likely,
on account of the new situation, either to increase or decrease in
value. If that happens, that is to be taken into consideration and the
amount determined under sub-section (1) will have to be adjustedPage 91
91
accordingly. The High Court is of the view that proviso (1) is
unobjectionable as it is a principle governing the determination of
compensation and can be rightly employed in determining the
compensation for the property acquired. The High Court, however,
was not inclined to hold that proviso (ii) lays down any principle for
determination of compensation payable for the property acquired. It
held, nevertheless, that the proviso was severable from the main part
of the section and did not affect the provisions of sub-section (1) for
payment of compensation. It is obvious that it is only in very rare
contingencies that proviso (ii) may become operative. But in
considering the question as to whether the Act provides for
compensation for acquisition or not, there can be little doubt that it
does so in sub-section (1) of Section 216. That it may in some rare
contingencies be very much reduced after taking into account the
value of the benefit conferred on the owner by reason of the widening
of the street is no adequate reason to hold that the Act does not
provide for payment of compensation. As a matter of fact in an actual
enquiry for determining the amount of compensation to be paid the
authority charged with the duty will have to assess, in the first
instance, the value of the total loss or deprivation actually suffered.
The provisos may in some rare contingencies go to reduce the amount
so determined. Proviso (ii) envisages a situation where the widening
of the street has so much benefited the owner that the value of the
benefit even exceeds the actual loss suffered by him. In such a case
instead of getting any compensation for the loss the owner might have
to pay out of his own pocket. As to whether proviso (ii) prescribes any
principle for determination of compensation or not is not relevant for
our present purpose. Both the provisos come into play only after the
compensation for loss is determined under sub-section (1) of Section
216 and since that sub-section declares that full compensation must be
paid for the loss or deprivation suffered by the owner it will be
incorrect to say that the Act does not make provision for the payment
of compensation for the property acquired. We have, therefore, no
hesitation in agreeing with the High Court that the Corporations Act
provides for the payment of compensation for the property acquired
under Section 212.
15. The next question is whether the Act specifies the principles
on which and the manner in which compensation is to be determined.
The High Court has been of the view that neither principles forPage 92
92
determination of compensation nor the manner of its determination
has been specified and that is the ground on which it has held that the
provisions of Section 212 are unconstitutional. We are unable to agree
with that view. What is meant by specification of principles for
determining compensation? In State of Gujarat v. Shri Shantilal
Mangaldas and Ors. (1969) 1 SCC 509, this Court observed:
“Specification of principles means laying down general
guiding rules applicable to all persons or transactions governed
thereby. Under the Land Acquisition Act compensation is
determined on the basis of ‘market-value’ of the land on the
date of the notification under Section 4(1) of that Act. That is a
specification of principle.”
 At a later stage the Court again observed at p. 362:
“Rules enunciated by the courts for determining
compensation for compulsory acquisition under the Land
Acquisition Act vary according to the nature of the land
acquired. For properties which are not marketable commodities,
such as lands, buildings and incorporeal rights, valuation has to
be made on the application of different rules. Principle of
capitalisation of not rent at the current market rate on
guilt-edged securities, principle of reinstatement, principle of
determination of original value less depreciation, determination
of break-up value in certain types of property which have
out-grown their utility, and a host of other so-called principles
are employed for determination of compensation payable for
acquisition of lands, houses, incorporeal rights, etc.”
The Land Acquisition Act makes market-value at a certain date the
basis for the determination of compensation. But there is no one sure
way of applying the principle. As is well known when set-back is
imposed by the line of the street, the land actually acquired by the
Corporation may be in some cases a few square yards or even a few
square inches. Then again the land acquired may be of no significant
use to anybody except to the Corporation as a part of the street. The
land acquired may be wedge-shaped, sometimes irregular in contour
and often shapeless. If the principle of a willing seller and a willing
buyer is applied there can possibly be no market at all for the property
acquired. It is not suggested that in every case of acquisition of land
for the street this principle will break down. But having regard to the
fact that in the course of widening the street the Corporation may havePage 93
93
to acquire very irregular, shapeless and small pieces of land for the
purposes of the street, a host of principles may have to be employed to
determine the compensation. We asked learned counsel for the
respondents what one general principle of determination of
compensation in such cases could have been appropriately specified.
We did not get any satisfactory reply. It appears to us that this very
difficulty in specifying any known rule of compensation is responsible
for the wording of Section 216 and Section 389 of the Act which, in
our opinion, gets over the difficulty by providing full indemnification
for the loss or deprivation suffered by the owner of the building or
other interests in the property. We have referred to the provisions with
regard to appeals. The first appeal lies to the Judge of the Small
Causes Courts and a second appeal to the District Judge. The
involvement of civil courts in finally determining compensation
imports judicial norms. Since full indemnification in accordance
with .judicial norms is the goal set by the Act it is implicit in such a
provision that the rules for determination of compensation shall be
appropriate to the property acquired and such as will achieve the goal
of full indemnity against loss. In other words, the Act provides for
compensation to be determined in accordance with judicial principles
by the employment of appropriate methods of valuation so that the
person who is deprived of property is fully indemnified against the
loss. This, by itself, in our opinion, is a specification of a principle for
the determination of compensation.
16. As regards the manner of determination of compensation, it
is provided in Section 390 of the Corporations Act. Under that section
the Commissioner or such other officer as may be authorised by him
shall hold such enquiry as he thinks fit and determine the amount of
compensation to be paid. Either the Commissioner or an Officer
authorised by him has to hold an appropriate enquiry before
determining the amount of compensation. Since, as already seen, there
is an appeal from such determination to the Judge of the Small Causes
Court under Section 391 and a second appeal to the District Court
under Section 411 it is clear that the enquiry must be made on broad
judicial lines. Any arbitrary determination is bound to be set aside in
appeal because the Judges in appeal will be chiefly concerned to see
whether the enquiry is made in accordance with normal judicial
procedures for evaluating the loss by the application of methods of
valuation appropriate to the particular acquisition before them. Since
no limitations are placed on the powers of the Appellate Judges inPage 94
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determining the loss in a just and appropriate manner, it is expected
that the Commissioner or his authorised officer, who holds the enquiry
in the first instance, will be guided by principles which meet with the
approval of the Appellate authorities. In our opinion, therefore, the
manner of the determination of compensation is also specified by the
Act.
17. It is conceded before us that if this Court holds that the
Corporations Act has provided for the payment of compensation and
also specified the principle on which and the manner in which
compensation is to be determined, it would not be possible to say that
the Act is either in violation of the provisions of Section 299 of the
Government of India Act, 1935 or Article 31 of the Constitution.”
Thus with respect to the compensation, considering more or less similar
provisions, a Constitution Bench of this Court has clearly laid down that as a
matter of fact actual compensation has to be determined in the first instance, the
value of the total loss or deprivation actually suffered. It has to be balanced with
the other relevant aspects for compensation. The Act provides for payment of
compensation. The view of the High Court that the principle for determination of
compensation has not been specified under section 212 was also not agreed to by
this Court. This Court has also held that the Land Acquisition Act makes market
value at a certain date the basis for determination of compensation. But there is no
one sure way of applying the principle. As is well known when set back is imposed
by the line of the street, the land actually acquired by the Corporation may be in
some cases a few square yards or even a few square inches. Then again the land
acquired may be of no significant use to anybody except for the Corporation as a
part of the street. The land acquired may be of different shapes, irregular in contour
and often shapeless. If the principle of willing buyer and willing seller is applied
there can possibly be no market at all for the property acquired. This Court opined
that the owner gets full indemnification for the loss or deprivation suffered to the
building or other interests in the property. Involvement of civil courts in finally
determining compensation imports judicial norms. There is no limitation on the
power of the appellate Judge. Thus this Court held that the provisions contained in
sections 212, 216 and 389 were not violative of the provisions of section 299 of the
Government of India Act, 1935 or Article 31 of the Constitution. The case was
remanded by this Court to the High Court for examining infringement of Articles
14 and 19 after laying down the aforesaid propositions. We have on merits found
no violation of Articles 14 and 19 also in the instant cases.
72. It was also submitted that the provisions of sections 305 and 306 are
required to be read down by incorporating the requirement of computation of
compensation in the light of the principles laid down under the Act of 2013 while
correlating it with the provisions of section 387 of the Act of 1956. In view of the
aforesaid dictum of this Court in Municipal Corporation of City of Ahmedabad
(supra), we find no scope to entertain the submission and the reliance by the
appellants on Yogendra Kumar Jaiswal v. State of Bihar & Ors. (2016) 3 SCC 183
is of no avail. Page 96
96
73. We find the principles laid down in sections 305, 306 and 387 are quite
reasonable. Reasonable compensation is payable by the Corporation for building or
part thereof excluding the land under proviso to section 305(1) and compensation
for inclusion of land in public street is payable under section 306(3) of the Act. We
do not find any ground so as to read down the provisions. We refrain to comment
upon the submission with respect to the granting additional FAR is not acceptable
to some appellants, as it is not the stage of dealing with compensation how the total
indemnification is to be made, whether FAR is acceptable to the appellants or not,
cannot be decided at this stage. It need not be decided at this stage whether they
have a right to leave the FAR and claim monetary compensation alone which is to
be adjudged by the concerned authorities within the pale of the provisions
contained in sections 305, 306 read with section 387 of the Act of 1956. How the
compensation is to be worked out at the appropriate stage, is the outcome of the
authorities concerned and the job of the arbitrator/District Court, as the case may
be. The appellants are at liberty to raise the question with respect to the adequacy
of compensation and how the provision of section 387 has to be interpreted and
what would be the just compensation at the appropriate stage of determination of
compensation.
74. Reliance has been placed on Laxmi Devi v. State of Bihar & Ors. (supra) and
Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh & Ors. (supra). ThePage 97
97
decision in Laxmi Devi (supra) is based on the specific provision contained in
section 10A of the Land Acquisition Act which requires compensation to be paid in
a case where emergency clause has been invoked. Collector is required to tender
payment of 80% of compensation before taking possession of the land. The said
provision is not at all attracted to the Act of 1956. As compensation is offered after
vesting, is quite reasonable procedure as envisaged by Article 300A of the
Constitution of India, at which point of time it is offered would not make the
provision confiscatory or repugnant. The compensation under section 305 or 306
read with section 387 is on the happening of certain exigency, and various factors
are taken into consideration for determination of compensation is a quite valid
procedure. The Corporation cannot be compelled as per the special scheme of
sections 305, 306 and 387 to offer the compensation before removal and vesting.
Reliance on the decision in K.N. Palsikar (supra) so as to contend that the
possession should be taken after payment of compensation is totally misplaced.
This Court has simply narrated in para 11 what was held by the High Court and the
points which were decided were capsualised by this Court in para 12 of the report.
The aforesaid question was neither raised nor decided by this Court. This Court has
not laid down any such proposition in K.N. Palsikar (supra), as canvassed.
75. Reliance has also been placed on a decision of this Court in Bhusawal
Municipal Council v. Nivrutti Ramchandra Phalak & Ors. (2015) 14 SCC 327 inPage 98
98
which this Court has considered right to property under Article 300-A and held that
such right is a human right and delayed payment of compensation leads to
alienation of section of society against the system, further public purpose that is
setting up of school, is no justification for delaying/denying compensation in the
garb of undertaking developmental projects, without paying the compensation to
the concerned landowner as per the statutory provisions. It was also submitted that
the time period was not prescribed within which compensation was to be paid. In
our opinion, the appellants have questioned the very notice, initiation of action and
when no time limit is fixed for payment of compensation, it goes without saying
that it has to be awarded within a ‘reasonable time’. Law envisages speedy action
without unreasonable delay and that is what is expected of the concerned
authorities, in respect of the obligation imposed on them to be discharged. Due to
this, the provision cannot be struck down as arbitrary nor it can be said to be
confiscatory in nature. We expect that the concerned Corporations would do well
while offering the compensation to the appellants as expeditiously as possible that
is sufficient to take care of their unfounded fear.
76. In the case of Bhuwan Bhandari v. Indore Municipal Corporation (SLP (C)
No.31541/2011) it was submitted that building is a heritage building and there is
bar on any kind of construction. The boundary wall has been demolished by the
Corporation and possession has been taken of that part without compensation. ThePage 99
99
fact has been denied by the respondents that the building has been declared as
heritage one. It was also pointed out that the Corporation for the purpose of
widening of the road required removal of part of the boundary wall which is quite
external to the main building and is falling within the set back. It is clear that the
main building is not being demolished. The submission is thus untenable.
77. In view of the aforesaid discussion, the appeals being devoid of merits are
hereby dismissed. Parties to bear their respective costs as incurred.
………………………..J.
(Jagdish Singh Khehar)
New Delhi; ……………………..J.
November 29, 2016. (Arun Mishra)

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