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TMI Blog2015 (11) TMI 1289X X X X Extracts X X X X X X X X Extracts X X X X ..... IVIL APPEAL NOS. 5769-5770 OF 2015 (Arising Out of SLP (C) Nos.30942-30943 of 2014) WITH CIVIL APPEAL NOS. 5771-5775 OF 2015 (Arising Out of SLP (C) Nos.30049-30053 of 2014) - - - Dated:- 29-7-2015 - GOPALA GOWDA, V. AND NAGAPPAN, C., JJ. JUDGEMENT V. GOPALA GOWDA, J. Leave granted. 2. The appellants-land owners have filed the present group of appeals challenging the common impugned judgment and order dated 16.6.2014 passed by the Division Bench of the High Court of Chhattisgarh at Bilaspur, in Writ Appeal Nos.379, 380, 381, 382, 389 and 393 of 2013 wherein the High Court upheld the order dated 15.4.2013 passed by the learned single Judge of the High Court of Chhattisgarh, Bilaspur, upholding the validity of the Town Development Scheme, namely, Kamal Vihar Township Development Scheme No. 4 (for short the KVTDS ). 3. The facts of the case are stated hereunder:- The appellants herein are the landowners of portions of land (with some construction thereon) situated in the villages Dumartarai, Tikrapara, Boriya Khurd, Deopuri and Dunda of Raipur District in Chhattisgarh State. The respondent No.2-Raipur Development Authority (RDA) was established under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.2-RDA, 15% of the developed plots have also been reserved for economically weaker sections which come to about 32.15 Hect. 7. Out of the total 4969 private land owners, 39 land owners did not agree to the Scheme/procedure adopted and preferred 23 writ petitions on various grounds which were dismissed by the learned single Judge of the High Court of Chhattisgarh, Bilaspur. Aggrieved by the same, six Writ Appeals were filed by 13 land owners. The Division Bench of the High Court of Chhattisgarh at Bilaspur, after considering the facts, circumstances and evidence on record of the cases, upheld the validity of the KVTDS planned by the RDA and dismissed the appeals on the ground that the same were devoid of merit. Hence, the present appeals. 8. We have heard the learned senior counsel for both the parties. On the basis of the factual circumstance and evidence on record produced before us and also in the light of the rival legal contentions raised by the learned senior counsel for both the parties, we have broadly framed the following points which require our attention. The main legal issues which arise in this case are :- (1) Whether the KVTDS provide the authority to the Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ict. 10. The 73rd and 74th Amendments were inserted in the Constitution of India with the avowed object and intention of strengthening the local self-governance both at the village and District level. It was argued by the learned senior counsel Mr. Gopal Subramaniam that self-governance was very much a part of the Indian society historically. In support of his contention, he relied upon the words of Sir Charles Metcalfe, the Acting Governor General of India from 1835 to 1836, on the functioning of the village panchayats made during the 19th century which are recorded as under: The village communities are little republics, having nearly everything they can want within themselves, and most independent of any foreign relations. They seem to last where nothing else lasts. Dynasty after dynasty tumbles down; revolution succeeds after revolution; but the village community remains the same. The union of the village communities, each one forming a separate little state, in itself, has I conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have suffered, and is in a high degree conducive to thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependence in their own way to manage their own affairs. (Constituent Assembly Debates, Vol. VII at p. 352 on November 9th, 1949) 11. It is further to be noted that Entry 5 in the list-II to the VIIth Schedule of the Constitution enables the State Legislature to make laws pertaining to local government which also include the powers to be vested on the Municipal corporations, Improvement Trusts, Authorities, Mining Settlement Authorities, District Boards and other local authorities for the purpose of village administration and the local self-governance. The constitutional amendment in 1992-93 through the 73rd and 74th Amendment Act provided for uniformity in the structure in terms of three-tier local governments at the District (Zila Parishads- ZPs), Block (Panchayat Samitis-PS) and Village levels (Gram Panchayats-GPs). With the constitutional amendment, the panchayats are constitutionally expected to move away from their traditional role of simply executing the programs handed down to them by higher levels of government. They are on the other hand, expected to implement their own programs of economic development and social justice. The amendments further confer power upon the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er physical and natural resources, the integrated development of infrastructure and environmental conservation; (ii) the extent and type of available resources whether financial or otherwise; (b) consult such institutions and organisations as the Governor may, by order, specify. (4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State. Also, under Article 243 ZF, any law inconsistent with the provisions of the Constitution will be held void. Article 243 ZF reads as under: 243 ZF. Continuance of existing laws and municipalities.- Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before the commencement shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r name called], of self- government, constituted under Article 243B for Rural Areas. Article 243ZD provides for constitution at District level in every State a Committee, known as District Planning Committee. It's purpose is to consolidate the plans prepared by the Panchayats and the Municipalities in Districts and to prepare a draft development plan for district as a whole. Article 243P defines Municipalities. Definition of District in Articles 243P and 243, as also definition of Panchayat in both the Articles is, identical. The purpose of Article 243ZD therefore, appears to have a committee to effectively amalgate together separate plans prepared by the Panchayats and Municipalities, and on its basis to prepare a draft development plan for District as a whole. That Article may also mean that DPC can consolidate these plans and also in addition, independently prepare a draft development plan for district as a whole. As per Article 243-ZD[2], the State Legislature has to provide for composition of DPC and filling in of the seats. 4/5th of the total number of members of such committee need to be elected by and from amongst the elected members of the Panchayat at district level a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as institutions of self-government. On the contrary, subject to provision of Constitution, the Legislature of State has been permitted to confer necessary powers and authority upon these bodies to enable them to function effectively. Article 243ZD which makes a provision for DPC, is one such provision. It requires the Legislature to make a law and stipulates that purpose of DPC is to consolidate the plan prepared by the Panchayats and Municipalities in Districts and to prepare a draft development plan for District as a whole. The provision noted by us above show relevance of matters of common interest, as specified in Article 243 ZD [3] [a] for said purpose. A Panchayat or Municipality can function only in area over which it has jurisdiction. Schemes prepared by it, therefore may not have any extra territorial application though possibility of its such impact or extending its benefit to outsiders cannot be ruled out. The water reservoir or other physical/natural resources, in jurisdiction of such institution of local self government can be conveniently exploited for larger area of two or more Panchayats or then Panchayats and municipalities at same cost or by saving public revenue. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the said Authority and to other members of whom one shall be representative of the District Collector, not below the rank of Deputy Collector and the other shall be an officer of the Town and Country Planning Department not below the rank of Deputy Director nominated by the Director of Town Country Planning for the purpose of hearing objection and suggestions received under subsection (3).] (emphasis supplied by the Court) Therefore, in the light of the provisions mentioned above if read in harmonious construction, the Chief Executive Officer of Respondent No. 2-RDA is not permitted to unilaterally prepare a development scheme resulting reconstitution of land without taking into consideration the opinion and suggestions of the democratically elected bodies such as the District Planning Committee and Officer of the Town and Country Planning Department, as mentioned in the Act of 1973. However, in the present case, as per the evidence on record put before us, the Chief Executive Officer of Respondent No. 2- RDA, formulated the Town Development Scheme without taking the opinion of the local committees which are constitutionally authorized to make suggestions in the matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al government to elect members to municipal corporations, improvement trusts, District boards, Mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Also, under Entries 1 and 3 of Twelfth Schedule, Urban planning includes town planning and planning for economic and social development respectively. In the light of the above entries, it is contended by the learned senior counsel on behalf of the appellants, Mr. Gopal Subramaniam and Mr. Huzefa Ahmadi that the Act of 1973 in the present case has been read by the respondents without taking into account the subsequent amendments made to the Act in adherence to the constitutional amendment provision. As a consequence, the power vested on the Director of the Planning Authority has been read by the respondent No.2-RDA in isolation to the subsequent amendments made in the Act thereby violating the present constitutional scheme of self governance. 18. It was further argued by the learned senior counsel on behalf of the appellants that under Article 243 N and Article 243 ZF, the Act of 1973 was required to be amended to make it adherent to the provisions of 73rd and 74 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce Co. v. Kavanagh5 wherein, Lord Watson has observed as under: when a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea. The aforesaid views of the Court of Appeal have been relied upon by this Court in Gurcharan Singh v. Kamla Singh((1976) 2 SCC 152). The above mentioned aspect of Article 243ZD, although is being raised before this Court for the first time, we are of the view that the same is based on admitted facts. The legal submission made on behalf of the appellants under Article 243ZD of the Constitution has to be accepted by this Court in view of the similar view that a new ground raising a pure question of law can be raised at any stage before this Court as laid down by this Court in V.L.S. Finance Limited v. Union of India Ors. 9(2013) 6 SCC 27), which reads thus :- 7. Mr Shankaranarayanan has taken an extreme stand before this Court and contends that the Company Law Board has no jurisdiction to compound an offence punishable under Section 211(7) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, as the new plea on fact has been raised first time before the High Court it could not have been entertained, particularly in the manner the High Court has dealt with as no opportunity of controverting the same had been given to the appellants. More so, the High Court, instead of examining the case in the correct perspective, proceeded in haste, which itself amounts to arbitrariness. (Vide Fuljit Kaur v. State of Punjab.) In National Textile Corporation Ltd. v. Naresh Kumar Badrikumar Jagad (2011) 12 SCC 695, it was held as under:- 19. There is no quarrel to the settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. [See Sanghvi Reconditioners (P) Ltd. v. Union of India and Greater Mohali Area Development Authority v. Manju Jain.] 22. Further, this Court has frowned upon the practice of the Government to raise technical pleas to defeat the rights of the citizens in Madras Port Trust v. Hymanshu International (1979) 4 SCC 176 wherein it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft Five Year Plan and Annual Development Plan of a district prepared under the Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995. In the case in hand, there is no evidence to prove that the Director had taken into account any report made under the 1995 Adhiniyam. On the other hand, the evidence on record produced before us clearly shows that the Development Plan has been altered to suit the requisites of KVTDS. This action by the Director is impermissible and unlawful. 25. Therefore, we are inclined to accept the contention raised by the learned senior counsel on behalf of the appellants and hold that KVTDS, having formulated solely by the Respondent No. 2- RDA without taking into consideration the reports of the local authority, violates the Act of 1973 as well as Part IX and IX-A of the Constitution. 26. We are inclined to agree with the fact that the Development Plan and its modification has not been made in accordance with the constitutional mandate and the Act of 1973. It is further contended by the learned senior counsel on behalf of the appellants that in the backdrop of the aforesaid Constitutional morality and the fact situation of the cases in hand, the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India Ors. (1969) 2 SCC 262: 20.The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acres to be included in the scheme when he was acting as the CEO of the RDA. It is evident from the evidence put on record before us that the same person was acting in two different capacities who proposed as well as accepted the plan of addition of land at subsequent stage. The said proposal was accepted within a span of 20 days only i.e. on 10.08.2009. 29. In view of the aforesaid undisputed facts as pointed out by the learned senior counsel on behalf of the appellants, the aforesaid decision taken by Sri S.S. Bajaj as Special Secretary, Department of Housing and Environment, Government of Chhattisgarh (Respondent No. 1) in approving the proposal of RDA to include large extent of land to the KVTDS is vitiated action in law as the same is tainted with bias and non-application of mind on the part of the State Government-Respondent No.1 with regard to the proposal of the Respondent No. 2- RDA to include large extent of land in the scheme. The Respondent No. 2- RDA released an affidavit dated 23.11.2010 on the ground of challenge by stating that: all decisions and actions have been taken by the Authority and not by any individual. Even otherwise the communications done by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, foreign to the scope of the power or extraneous to the statute, enter the verdict or impel the action mala fides or fraud on power, vitiates the acquisition or other official act. In the case in hand, we are convinced that the action taken by Respondent No. 2- RDA as mentioned in the affidavit issued by it, meets different ends than the reason for which power had been assigned to it. It is contended by the learned senior counsel on behalf of the appellants that there was no Committee in place. We are in agreement with this contention raised by the learned senior counsel. As per the Order issued by the Revenue Branch of Respondent No. 2- RDA, the said Committee which was to review the scheme under Section 50(5) of the Act of 1973, was constituted only on or about 30.11.2009 but the decision to further extend the land size into the Town Development Scheme can be traced as early as 14.7.2009 with the report of Board Meeting No. 03/09. 31. Apart from the said contravention made by the Respondent No. 2- RDA, its proposal to have township of 2300 acres of land was examined by a Committee constituted under Section 50(5) of the Act of 1973, which prepared its report dated 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to the State Government so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members from resigning from the committee on the ground of their interest in the matter. Therefore, in the light of the reasons mentioned by us above, we are of the considered view that there is total lack of application of mind by the Respondent No. 1- State Government in not taking into consideration all the relevant aspects while declaring the KVTDS as well as the finance Scheme proposed by the Respondent No. 2- RDA. The Respondent No. 1- State Government could not have sanctioned the aforesaid Scheme as the same is in contravention to the procedure laid down comprehensively in Section 50 of the Act of 1973. The initial approval of the Scheme was on 25.1.2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power has been given to the authority. 81. The words at any time have to be interpreted in the context in which they are used. Since a town development scheme in the context of the Act is intended to implement the development plan, the declaration of intention to prepare a scheme can only be in the context of a development plan. The starting point of the declaration of the intention has to be upon the notification of development plan and the outer limit for the authority to frame such a scheme upon lapsing of the plan. That is the plausible interpretation of the words at any time used in Section 50(1) of the Act. (See State of H.P. v. Rajkumar Brijender Singh. The phrase at any time under Section 50(1) of the Act is not a charter for the exercise of an arbitrary decision as and when a scheme has to be framed. The words At any time have no exemption from all forms of limitation for unexplained and undue delay. Such an interpretation would not only result in destruction of citizens rights but would also go contrary to the entire context in which the power has been conferred upon the authority. 34. Also, a proviso added to Section 50(1) of the Act in the year 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by it prior to proposing the KVTDS. Even though KVTDS has allegedly been introduced for a population of 16,000 per 40 Hect. of land there is no document /survey report on record to show how the said figure was arrived at by the RDA. The requirement of such assessment was all the more necessary because already a new capital called Naya Raipur has been built near Raipur. 36. Further, frequent changes in the extent of land acquired for the KVTDS by the RDA is a very strong indicator of the fact that there is no rationale behind the proposal of the said Scheme. The Respondent No.2- RDA had proposed the area of KVTDS to be 900 acres on 31.7.2006, 1100 acres on 14.11.2006, 394 acres on 3.6.2008 and eventually 2300 acres on 20.7.2009, without assigning reasons for coming to such conclusions in expanding the area to the scheme. In view of the above, there is clear non-application of mind on the part of the State Government behind the increase in the sanctioned area of KVTDS from 416.93 acres of land to 2300 acres of land. In fact, in the letter dated 27.8.2008 to the Joint Director, Town and Country Planning Authority, it has been specifically noted that physical survey of the area mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te governments and development authorities: (i) absence of proper or adequate survey and planning before embarking upon acquisition; (ii) indiscriminate use of emergency provisions in Section 17 of the LA Act; (iii) notification of areas far larger than what is actually required, for acquisition, and then making arbitrary deletions and withdrawals from the acquisitions; (iv) offer of very low amount as compensation by Land Acquisition Collectors, necessitating references to court in almost all cases; (v) inordinate delay in payment of compensation; and (vi) absence of any rehabilitatory measures. While the plight of project oustees and landlosers affected by acquisition for industries has been frequently highlighted in the media, there has been very little effort to draw attention to the plight of farmers affected by frequent acquisitions for urban development. XXX XXX XXX 156. When BDA prepares a development scheme it is required to conduct an initial survey about the availability and suitability of the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the developmental plan. In the instant case, the development plan is the Master Plan of Raipur planning area. Therefore, the very definition clearly states that unless master plan allows use of a particular area as residential , it is not open for the Respondent No.2- RDA to propose a township or a town development scheme whose land use is at variance with the one provided in the development plan. Till such time as the lands in question is notified for residential use, the Respondent No. 2- RDA cannot propose a Town Development scheme for the said land. 38. Respondent No.2- RDA is entrusted with a duty to implement the master plan under Section 38(2) of the Act of 1973. The resolution dated 5.11.2009 passed by the Respondent No. 2-RDA proposing to the State government to get the land use changed under Section 23A of the Act in order to implement its township project either by itself or the CEO, on their own or in a manner that is inconsistent with the text as well the provisions of the Act of 1973. In this regard, this Court has already laid down the legal principle in the case of Bangalore Medical Trust v. B.S. Muddappa (1991) 4 SCC 54, which reads as under: 49. .. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of this case, the Respondent No. 2- RDA, without any resolution of the Board, on its own motion, 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 Act of 1973, the development plan/ Raipur Master Prevised 2021 that is prevailing, the Respondent No. 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 Act of 1973 and we hold that KVTDS is ultra vires to the Act of 1973. Answer to Point No. 3 39. Though we have answered point no. 2 in favour of the appellant, we intend to mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch could be acquired for town development schemes. The Respondent No. 2- RDA on the other hand, has taken the following stand in their common counter affidavit dated 23.11.2011 filed in the writ petition proceedings: That, thus, earlier the Master Plan, 2021 is modified as per scheme under Section 23A or the scheme is modified as per Master Plan under Section 52(1) (b) of the Act, the net results remains that there is no violation of Master Plan, 2021 and therefore, the allegations of the petitioner that the scheme has been formulated and finalised in violation of the Master Plan, 2021 is incorrect. Therefore, in the absence of a zonal plan in place, the Respondent No. 2-RDA has skipped the legal mandate in place for preparation of a Town Development Scheme. 40. The importance of zonal planning lies in its distinguished characteristic which lays down with sufficient particularity the use to which a particular piece of land could be put. The object and purpose of the 1973 Act itself foresees that zonal plan is necessary for implementation of a Town Development Scheme. The preamble of the Act clearly discloses that a Town Development Scheme is at best a vehicle to implemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t where the Town Planning Act does not contemplate a Zonal Plan, and which contemplates DP-TP . 44. The letter of Respondent No. 2-RDA dated 20.07.2009 addressed to Respondent No. 1- State Government seeking permission for the Town Development Scheme in the enhanced area itself highlights the importance of planning at Zonal level to stop illegal development. Having regard to the provisions of Sections 17, 19, 20, 21 and 49 of the Act of 1973, the relationship between the scope of Development Plan, Zoning Plan and Town Development Scheme can be well understood and in view of the aforesaid provisions and the factual position in relation to the KVTDS, unless a Zoning Plan exists, it is not possible for the Planning Authority to ascertain as to which area is to be used for which purpose. A development authority under Section 38(2) of the 1973 Act cannot, in the name of planning and implementing a Town Development Scheme, usurp the power of the local authorities and define the land use under the Town Development Scheme and subsequently, seek changes in the Master Plan to bring it in conformity with the KVTDS. In support of this contention, reliance has been placed upon by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 finalized it would have no statutory or legal force and the land use as existing prior thereto with the rights of usage of the land arising therefrom would continue. 77. To accept that it is open to the town development authority to declare an intention to formulate a town development scheme even without a development plan and ipso facto bring into play a freeze on usage of the land under Section 53 would lead to complete misuse of powers and arbitrary exercise thereof depriving the citizen of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. This would be an unlawful deprivation of the citizen's right to property which right includes within it the right to use the property in accordance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. 46. In the light of the facts and circumstances of the case, the legal contentions urged before us, the provisions of the Act and also in the light of the legal principles already laid down by this Court, we are of the opinion that Respondent No. 2- RDA could not have formulated KVTDS-for Raipur without a Zoning Plan there in place. Accordingly, we answer this point in favour of the appellants. Answer to Point No. 4 47. Section 50 (5) of the Act of 1973, read with Section 50 (6) of the Act of 1973, provides for constitution of a committee which shall determine the various aspects of a Town Development Scheme such as its viability, cost effect etc. Section 50(6) of the Act provides that a committee constituted under section 50(5) of the Act shall consider the objections and suggestions and give hearing to any person desirous of being heard. Thereafter, the committee shall submit its repor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 by way of its reply to the writ petitions, has taken the following stand: However, finally the Committee came to the conclusion that as the scheme is to be made in participation with, the general public, therefore, neither any charge would be levied on the public under any head nor any compensation would be payable to any of the members of public on account of reduction of his plot size or value However, while finally making its recommendation the committee on internal page No. 114 and 115 of the Annexure categorically recommended that the provisions of sub-section (v) (vi) and (vii) of the Section 50 (6) would not be applicable on the scheme. From the above averments of the Respondent No. 2- RDA in its affidavit by way of reply, it is evident that it has unilaterally decided to make the mandatory provisions of Section 50(6) (v) (vi) and (vii) of the Act of 1973, inapplicable to the scheme without providing any reason for the same. It could not have stated so, as this aspect is no more res integra. This court has already taken the view that the provisions of Section 50 are mandatory in nature in the case of Ahmedabad Municipal Corpn. v. Ahmedabad Green Belt Khedut Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een circulated in draft, together with the necessary papers, if any, to all the directors, or to all the members of the committee, then in India (not being less in number than the quorum fixed for a meeting of the Board or committee, as the case may be), and to all other directors or members at their usual address in India, and has been approved by such of the directors as are then in India, or by a majority of such of them, as are entitled to vote on the Resolution. Thus, since there is no declaration of intent preceding publication in the gazette, Board Resolutions which are not declared to the public in the matter prescribed under the Act of 1973, and same do not amount to declaration. The Act does not empower the Respondent No. 2- RDA to reconstitute plots. Even if any authority can be read into it, it has to be limited to public utilities. 55. The provision under Section 49 of the Act of 1973 only allows a Town Development Scheme to make provision for reconstruction of plots for the purpose of buildings, roads, drains, sewage lines and other similar amenities. It may be noted that the Maharashtra Regional and Town Planning Act, 1966 and the Gujarat Town Planning and Urb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the said purpose. Further, under Section 52 of the Gujarat Act the town planning officer carries out the task of reconstitution of lands. The provision reads as under: 52(1) In a preliminary scheme, the Town Planning Officer shall:- (i) After giving notice in the prescribed manner and in the prescribed form to the persons affected by the scheme, define and demarcate the areas allotted to, or reserved for, any public purpose, or for the purpose of the appropriate authority and the final plots; (ii) After giving notice as aforesaid, determine in a case in which a final plot is to be allotted to persons in ownership in common, the share of such persons; (iii) Provide for the total or the partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with the provisions of Section 81; (iv) Determine a period within which works provided in the scheme shall be completed by the appropriate authority. Also, Section 81 of the Gujarat Town Planning and Urban Development Act reads as under: Any right in an original plot which in the opinion of the Town Planning Officer is capable of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the value of the property after making all these deductions, adjustments, improvements, etc. and, therefore, if a person has suffered any loss, his loss is to be made good from the funds of the scheme and if a person has gained an amount equivalent to net gain, is to be recovered from him. The case mentioned supra, further reads: 40. As we have explained hereinabove that the town planning scheme provides for pooling the entire land covered by the scheme and thereafter reshuffling and reconstituting of plots, the market value of the original plots and final plots is to be assessed and the authority has to determine as to whether a landowner has suffered some injury or has gained from such process. Reconstitution of plots is permissible as provided under the scheme of the Act as is evident from cogent reading of Sections 45(2)(a), (b), (c) and Section 52(1)(iii) in accordance with Section 81 of the 1976 Act. By reconstitution of the plots, if anybody suffers injury, the statutory provisions provide for compensation under Section 67(b) read with Section 80 of the 1976 Act. By this reconstitution and readjustment of plots, there is no vesting of land in the local authority and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of land parcel being developed, and there is no reason for its inclusion except malice in law. b)Land of petitioner s Chinmay Builders and Jalaram Cooperative Housing Society of village Tikrapara is on the fringe of their existing colonies, and is therefore, sufficiently developed. c)Land of petitioner s Chhatri Family and petitioner Vijay Rajani and family is on the main orad and is sufficiently developed on account of proximity to the main road. d)Only a piece of land jointly owned by Vijay Rajani, Rakesh Amrani and Pradeep Prithwani admeasuring about 1 acres is in the centre of the township. 62. It was further argued that draft Scheme was published on 20.11.2009 which included vast tracts of agricultural land as well as abadi areas. However, the final scheme published on 16.07.2010 was for 1600 acres. It is submitted by the learned senior counsel on behalf of the appellants that firstly the inclusion of 1900 acres of land was approved on 10.08.2009 without following the procedure and conducting the survey. But after harassing the land owners, the Respondent No. 2- RDA excluded 700 acres of land, which were as under: (a) Land notified for agricultural use under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out but then deleting various portions of land in the middle merely on the ground that there is a small structure of 100 sq.ft or 200 sq.ft. which may be authorized or unauthorized. Such deletions make a mockery of development. Further such deletions/exclusions encourage corruption and favouritism and bring discontent among those who are not favourably treated. 135. The complaint by appellants is that in the proposed Arkavathi layout, rich and powerful with connections and money power were able to get their lands, (even vacant lands) released, by showing some imaginary structure or by putting up some unauthorised structure overnight. Though we do not propose to go into motives, the concurrent finding by the learned Single Judge and Division Bench is that there are arbitrary unexplained deletions. While we may not comment on policy, it is obvious that deletion from proposed acquisition should be only in regard to areas which are already well developed in a planned manner. 136. Sporadic small unauthorised constructions in unauthorised colonies/ layouts, are not to be deleted as the very purpose of acquisition for planned development is to avoid such unauthorised development. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng any reasons for the same and not even providing any hearing opportunities to put forth their objections before the said Committee. Therefore, the recommendations of the Committee did not carry any weight. This action of the State Government is vitiated in law and therefore liable to be set aside. 65. It can be asserted from the evidence on record produced before us that the Committee constituted under Section 50(5) of the Act, heard objections of the land owners from 25.01.2010 to 2.6.2010. At the same time, the Respondent No. 2- RDA proposed change of land use on 15.4.2010 and 20.5.2010 and even the lay-out plan was also prepared and approved on 26.5.2010. This shows that the hearing and consideration of the land owner s objections was only a sham. The committee had pre-decided about the plan and was hearing objections of the land owners only as a formality procedure. Clearly, when the land plan was prepared and approved on 26.5.2010, the hearing of objections till 2.6.2010 was immaterial. 66. The committee took decision to exclude agricultural land which was formally taken on 22.6.2010 after acceptance of the report of the Committee dated 8.6.2010. But even before this, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indore. Indeed, the public must also have an opportunity to examine the scheme and file objections in the light of the Master Plan if the Development Authority wants to adopt the scheme. Since the scheme in question was not an approved scheme under the Trust Act, the Development Authority could not have dispensed with the procedure prescribed under Section 50 of the Adhiniyam. Therefore, in the light of the facts and circumstances of the case and the legal principles laid down by this Court, we are of the opinion that reconstitution of plot for the purpose of town development scheme is permissible for public purpose only and that too by following the legal procedure of publication by the authority in gazette about its intent to acquire land. In the absence of the same, and also when the purpose for reconstitution of land is not for public purpose, such reconstitution of land is impermissible under the Act. Therefore, we answer this point in favour of the appellants that the respondent No.2-RDA could not have reconstituted plot for any other purpose other than public purpose. Answer to Point No. 5 68. It has been argued by the learned senior counsel on behalf of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accrues the benefit to everyone. In the same way, the appellants whose land has been acquired and proposed to be developed, would have gained from the development, if at all, as a member of the community gaining from the town development scheme and not in his individual capacity. When the compensation for land acquisition is determined, the price of the land on the date of the declaration of intention of acquisition is taken into consideration and not subsequent development after acquisition since the development is not connected to acquisition. In the same manner, if the land is reconstituted in plots for distribution to the Economically Weaker Sections of the community or other public purposes, the same cannot be done by arbitrarily depriving the land owners of their Constitutional rights guaranteed under Article 300 A of the Constitution of India. They are entitled for the compensation from the State Government. The State Government on the other hand, cannot involuntarily acquire land and impose developmental charges in the same breath. 69. We come to this conclusion further on the ground that 35% figure was arrived at by Respondent No. 2- RDA while allocating reconstituted l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied i.e. 1600 acres. 73. As per the MoEF, EIA notification dated 14.9.2006 was issued by which Townships and Area Development Projects are put in Category B1. The KVTDS Scheme No.-04 falls in this category. As per general conditions of 14.9.2006 notification, projects of B1 category will be considered as projects of category A if the same falls in critically polluted areas. Then the Central Government is the competent authority to grant clearance to such projects. 74. Further, MoEF, issued a circular dated 25.8.2009, which has noted that the Central Pollution Control Board (CPCB) had identified critically polluted areas. The Expert Appraisal Committee (EAC) is appraising proposal of EC to the areas. Thereafter the concerned State Pollution Control Board will send its representative with its comments. The circular pertained to the procedure of grant of EC to development projects in Critically Polluted Areas. 75. The MoEF issued O.M. dated 13.1.2010 listing out critically polluted and severely polluted areas. Raipur falls in severely polluted area (S. No. 63 with CEPI-65.45). Para 4.1.1 and 4.1.2 of the said O.M. puts a complete prohibition on grant of environmental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... martarai and also from Educational to Residential area in village Tikrapara. 79. As per condition (ii) in the aforesaid notification, 185 hectares of land has to be maintained. The land use approved by the Board on 22.6.2010 only provides for 129.42 hectares of land for green zone. 80. On 25.1.2011, condition (v) of the General Conditions, stipulated that if the scope of a project is changed, fresh permission should be sought from the SEIAA. Scope of KVTDS-04 was changed as hereunder: On 17.6.2010, i.e. the date of application for EIA, RDA sought clearance for 2300 acres/847.84 hectares but finally the scheme was published on 16.7.2010 for 1600 acres. 4.3.2011: change in land use notified on 31.1.2011 published in official gazette 17.8.2011: In RDA Board Meeting, layout plan was amended in view of G.O. dated 25.2.2011. This resulted in change in scope of the project. Thus in view of the specific condition (ii) of the Environmental Clearance dated 25.1.2011, fresh EC should have been sought and obtained by the RDA but the same has not been obtained by it. 81. Section 50(8) of the Act cannot be made retrospectively applicable. In the absence of vesting of land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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