RAVINDRA RAMCHANDRA WAGHMARE v. INDORE MUNICIPAL CORPORATION & ORS.

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MUNICIPAL CORPORATION & ORS. [ARUN MISHRA, J.]

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 oflegal 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 oflaw 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 oflaw". 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 other of the H

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43Copy pinpoint43. There is no dispute with the principles laid down by this Court o 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 H

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MUNICIPAL CORPORATION & ORS. [ARUN MISHRA, J.]

by construction make up the deficiencies. We find that there is no omission A or lacunae, much less casus omissus as submitted, in the provisions contained in section 305 of the Act of 1956.

44Copy pinpoint44. 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 B Master Plan of 1991 notified in the year 1975 and Master Plan of2021 has also been notified. Both are the cases ofBRTS corridor project. As such action has been taken under section 305 and in case oflndore, it is also admitted that there was a scheme framed under section 49 read with section 50 of the Act of 1973. ln the case of Bhopal, the appellants have not pleaded that the scheme under sections 49 and 50 has not been C 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. D

45Copy pinpoint45. 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 forthe 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 pmi and vesting of the property by legal fiction. G Jn re : Section 78/79 of the Act of 1956 and Section 56 of the Act of 1973 :

46Copy pinpoint46. It was also submitted that when the provisions of the statute are plain and unambiguous, court shall not interpret the same in a different H

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A 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 Aganrn/ (2003) 2 SCC 577. B 4 7. 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 c 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 01· easement by D agreement.- ( I) 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, any immovable property, such property may be acquired by the E 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 particu Jar case. (2) Whenever, under any provision of this Act the Commissioner F 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: G Provided that no agreement for the acquisition of any immovable property under sub-section (I) 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 behalfofthe Corporation acquire ··: •(.o•. ' ' ••

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by agreement any easement affecting any immovable property vested in the Corporation and the provisions of sub -sections ( l) and (2) shall apply to such acquisition.

79. Procedure when immovable property or easement can not be acquired by agreement.- (!) 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 c 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. D (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. E (3) When any land is required for a new street or for the widening or improving ofan 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." F 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 G town development scheme under Section SO 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 H

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A such land under the provisions of the Land Acquisition Act, 1894 (No. I 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 B agreement may contain such conditions and executed in such manner as may be prescribed."

48Copy pinpoint48. 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 oftheAct of 1956 also. The provisions c are extracted hereunder : "306. Compensation.-( I) 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. D (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 ryle or byelaw : E 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.- (I) If an agreement is not arrived at with respect to any compensation or H

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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 is 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 F (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 G 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 H

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A 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 B 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."

49Copy pinpoint49. We have extracted the definitions of 'private street', 'public c 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 other public funds or which D 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, pub Iic 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 - E 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 H

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by the Legislature under section 305 of the Act of 1956, would prevail upon the general provisions with respect to acquisition ofland as provided in sections 78 and 79 thereof.

50Copy pinpoint50. In "The Principles of Statutory Interpretation" by G.P. Singh, J3•h 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 with in 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 D 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 E 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 ifit is reasonably possible to do so, and to avoid repugnancy". As stated by VENKATARAMAAIYAR, J. : "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each F 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 · G construction. To harmonise is not to destroy. Afamiliar 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 to construe the more general one as to exclude the more specific. [South India Corporation (P) Ltd. v. H

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A 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 B 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) c 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.[Col/ector 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 specia/ibus 11011 derogant, [General things do not derogate from special things. Osborn s Law Dictionary] and Generali bus 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, F 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 G 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 H

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51Copy pinpoint51. 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 ofaction is taken under section 305 is provided under proviso to section 305 and F 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 compensation 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 G 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 H

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A 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.

52Copy pinpoint52. The submission raised by the appellants that for acquisition of B land, sections 78 and 79 should be resorted to for the purposes mentioned in section 305 cannot be accepted for yet another reason, ifthe 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 c section 25 of the Act of 1973. Various rights ofownership 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, 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.

53Copy pinpoint53. 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) is not attracted when it is deemed to be part of the public street on vesting in the H

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Corporation. The process under section 305 read with sections 306 and A 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 TOR 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.

54Copy pinpoint54. 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 Ajjal Imam" State of Bihar & Ors. (2011) 5 SCC 729 wherein this Court has considered the basic rule of harmonious construction, when cross reference ofrelevant provisions should be made and in order to reconcile two apparently inconsistent provisions, one can be read as "subject to" the other and if necessary reading down of the provisions has to be made. E

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. F

55Copy pinpoint55. It was also submitted that wllen 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: G "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 H

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A statute. They must act within the four comers thereof."

56Copy pinpoint56. This Court's decision in Laxmi Devi v. State ofBihar & Ors. (2015) 10 sec 241 has been relied in which it has been laid down thus: "16. The salient concomitants of Section 17( 1) deserve enumeration. B 16.1. FirstZY, 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 c requirement of publishing an award. 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 D 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 E 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 F preceding Section 3((). A conjoint reading of Sections 17 and 3(() makes it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition ofland is for companies; however, we must be quick to add that this question does not arise before us. G 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 H

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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 wtiich has followed this decision (supra)." There is uo 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 :

57Copy pinpoint57. It was also submitted that there is difference between acquisition and reservation. A development plan merely creates a restriction en 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 Gimar Traders (3) v. State of Maharashtra & Ors. (2011) 3 SCC D

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 H

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A 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 B 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. c 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 D 5.17, 5.18 and 5.1'9 ofW.P. No.5682 of2016. 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 detennined 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 ofArticle 14 of the E Constitution. It is reiterated in para 5.17 thatthere 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 of 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.

59Copy pinpoint59. The interpretation suggested upon section 292, as to the expression scheme'under section 291 of the Act of 1956 or only to a H

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scheme under section 49/50 of the Act of 1973 cannot be accepted. We A 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. B

60Copy pinpoint60. 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 under any other Jaw for C the time being in force. Provision of section 66( I) is extracted hereunder: "66. Matters to be provided for by Corporation.- (I) 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:- D 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. E 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.

61Copy pinpoint61. It was also submitted that Town Planning and Municipal F 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. G 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: "59. Jn Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai (2005) 7 SCC 627 construing Section 5-A of the Land H

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A Acquisition Act, this Court observed: (SCC pp. 634-35, para 6-7) "6. It is not ir. 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 B '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 ofland for c 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)" D It was further stated: (SCC p. 640, para 29) "29. The Act is an expropriatory legislation. This Court in State ofMP. 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. E [See also Khub Chand v. State of Rajasthan AIR 1967 SC 1074 and CCE v. Orient Fabrics (P) Ltd. (2004) 1 SCC 5971 There cannot, ther.efore, be any doubt that in a case of this nature due application of mind on the part of the statutory authority w11s imperative." F In State of Rajasthan v. Basant Nahata (2005) 12 SCC 77 it was opined: (SCC p. I 02, 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 G interdict would be opposed to one's right of property as envisaged under Article 300-A of the Constitution." In State of U.P. v. Manohar (2005) 2 SCC 126 a Constitution Bench of this Court held: (SCC p. i29, paras 7-8) "7. Ours is a constitutional democracy and the rights available H

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to the citizens are declared by the Constitution. Although Article A 19(1 )(t) 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 lmv.-No person shall be deprived of his B 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) C 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 pennanently, 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 forthe 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 ora State Legislature, a rule or a H

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A statutory order having force of law. It is inherent in every sovereign State by exercising its power of eminent domain to expropriate private property without owner's consent. Prima facie, State would be the judge to decide whether a purpose is a public purpose. But it is not the sole judge. This will be subject to judicia·I review and it is the duty of the court to determine B 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 c 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 oflaw. Deprivation by any other mode is not acquisition or taking possession under Article 300-A. In other words, ifthere 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 She tty ( 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 suita 1le building for the purpose and incidentally may affect his fundamental right if too widely interpreted." G We have applied the rule of strict construction and found the action is pennissible under the provisions of section 305 as the Corporation has implemented the provisions of development plan, it is bound to implement the development plan prepared after following the exhaustive procedure consistent with the principles ofnaturaljustice, and is in the larger public H interest.

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62Copy pinpoint62. Learned counsel has also referred to the decision of this Court A 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 S0(2) of the Act B of 1973. This Court observed that the area in question with respect to which the scheme had been framed under section SO 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 SO(l) read with section S3 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 under section 305. In Indore the town development scheme exists and for Bhopal, absence of town development scheme under sections 49 and SO has not been pleaded by the appellants. This Court in E 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

(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. G (c) Section 38 provides for establishment ofa 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 H

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A 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 ac·cordance with the procedure prescribed under the B 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(11) of the Act, which describes a town development scheme to mean a scheme prepared for implementation of the provisions of the development plan.

c 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 sweep 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 ofland 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 H

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the final development plan. A

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 B 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 ofnine clauses c contained in Section 49, six relate to acquisition ofland 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. D

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 p Ian, since until the development p Ian 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 H

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A 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 B 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 c 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 to redo that exercise under section 49150 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.

63Copy pinpoint63. The appellants have also placed reliance on Rajendra Shankar Shukla & Ors. v. State ofChhattisgarh & 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 H RDA, without any resolution of the Board, on its own motion,

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addressed a Letter dated 31-7-2006 and approached the State A 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 ofChhattisgarh, 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 5 0 of the 1973 Act and we hold that KVTDS is ultra vires the 1973 Act. Answer to Point (iii) D

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, E 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: F "17. Co11te11ts 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 .... " G

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 H development plan. Section 20 of the Act reads thus:

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A "20. Preparation of zonal plans.-The local authority may on its own motion at any time after the publication of the development plan, or thereafter if so required by the State Government shall, within the next six months of such requisition, prepare a zoning plan." B 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) c 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 202 l.

D 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 al locates 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 H

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plan following the direction of Respondent I State Government A 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 ofland use with sufficient particulars is a sine qua non under the provisions B of the Act.

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 C 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. D 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 :

64Copy pinpoint64. 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 oflndia. Reliance has been placed on the decision in Sura} 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, 194 7 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 pennissible 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 H

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A made arbitrarily and without any substantial basis. In our opinion, the provision of section 305 when it deals with the pub! ic streets and removal of building falling in regular Iine 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 B 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.

65Copy pinpoint65. Reliance has also been placed on the decision in Nagpur Improvement Trust & Am: v. Vithal Rao & Ors. (1973) 1 SCC 500. To C 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. Para5.22 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 : "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 I kilometer periphery of the lands of the petitioner, the Capital ProjectAdministration (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 F the land owners would be entitled to compensation as per the new regim,e 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 G 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 oflink road by the Capital Project H Administration where acquisition will be required. It is not pieaded in the

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aforesaid paragraph that the other area is falling in the regular line of A 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. B Hence, the submission based upon the dictum of this Court in Nagpur Improvement Trust (supra) has no legs to stand.

66Copy pinpoint66. 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 C (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 D 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.

67Copy pinpoint67. 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 ofArticles 14, 19, 21 and 300-A of the Constitution oflndia 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. & Am: v. State of Karnataka (2011) 9 SCC I. H

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A 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 oflndia, 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 ofArticles 14, 19(l)(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 to 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 E 31-A, 31-B and 31-C of the Constitution oflndia, 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 F umbrella of Articles 31 A, 31 B and 31 C, 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 l.R. Coelho (Dead) by LRs. V. State G of T.N. (2007) 2 SCC 1, this Court laid down that statutes protected by Articles 31 A, 3 I B and 31 C would be as part of basic structure though not Article 14 or Article 19 simpliciter. In K. I Plantation (P) Ltd. (supra), this Court has considered the question thus : "189. Requirement of public purpose, for deprivation of a person H of his property under Article 300-A, is a precondition, but no

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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 itselfwill 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 ifthe provisions oflaw 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 ofArticles 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 oflaw as provided in Article 300-A is immune from challenge before a constitutional court for violation ofArticles 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(l ).

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A 194.!.. Article 31-A was inserted by the First Amendment Act, 1951 to protect the zamindari abolition laws and also the other types 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(l )(a) to (g) on the ground of violation of Article 14 was also constitutionally B excluded.

198. Article 300-A, unlike Articles 31-A(l) and 31-C, has not made the legislation depriving a person of his property immune from challenge on the ground of violation ofArticle 14 or Article 21 of the Constitution oflndia, but let us first examine whether c 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 Mohan/al D 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 live Iihood, E 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." · F 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 ur 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 G 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 cause 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 H may be required to be cured.

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68Copy pinpoint68. Reliance has also been placed on the decision of this Court in A Rajiv Sarin & Am: 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 ii legal 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 State 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 ifit is found that the State has undertaken to take H

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A 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 B used in sections305 and 306 is 'reasonable compensation'. This Court has laid down in Rajendra Shankar Shukla (supra) itself that the Land Acquisition Act envisages payment ofjust and reasonable compensation and qualifies the test of Article 300A.

69Copy pinpoint69. Reliance has also been placed on Rustom Cavasjee Cooper c 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 tested 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 thf' 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.

70Copy pinpoint70. 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 F 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 G compensation as discussed hereafter.

71Copy pinpoint71. It was submitted by the respondents that with respect to the principle of determination of compensation, a Constitution Bench of this Cout1 has considered more or less similar provision contained in sections 212 and 216 of the Bombay Provincial Municipal Corporation Act, 1949. H

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It was found to have qualified to section 299 of the Government oflndia A Act in Municipal Corporation of the City of Ahmedabad & Ors. v. State of Gujarat & Ors. (1972) I SCC 802. The question of payment of compensation for acquiring the land lying within line of pub! ic street came up for consideration. A question arose whether Corporation is liable to provide compensation. First proviso to section 216(1) which B 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 offull 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 c respect to removal of project in the regular line ofa 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 - (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 ofloss 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 H

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A 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: B "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 c 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: D "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 E 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." F "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 G compensation under clause (f) of sub-section (I) 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 H

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appeals from original decrees shall apply to appeals to the Judge A 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 B Small Causes or the DistrictJudge. The provisions of section 212 were questioned on the ground that they were violative of section 299 of the Government oflndia 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 : c "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( I) clearly lays down that compensation shall be paid by the D 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 by the Commissioner. E Then Section 389(1) prov ides 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 po.wer, namely,"(() 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 H

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A 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 bui Iding which falls within the line is removed the acquisition of the land for the B 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 Iine of street should not be pulled down with a view to release the land underneath for the purposes of the street. If after c 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. lfhe 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 pa11 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 that 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 H

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Act provides for the payment of compensation for the property acquired.

14. It was, however, argued that the two provisos to sub- section (I) of Section 216 when given effect to may not only nullify the direction given in sub-section (I) 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 outto be illusory and the provision for the payment ofcompensation c an empty assurance. Proviso (I) 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 D 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- E 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) F will have to be adjusted accordingly. The High Court is of the view that proviso (I) is unobjectionable as it is a principle governing the determination of compensation and can be rightly employed in determiningthe 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 G 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 (I) for payment of compensation. It is obvious that it is only in very rare contingencies that proviso (ii) H

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A 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 (I) 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 B 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 c 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 D (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 (I) of Section 216 and since that sub-section declares that full compensation must be paid for the loss or E 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. F

15. The next question is whether the Act specifies the principles on which and the manner in which compensation is to be detennined. The High Court has been of the view that neither principles for determination of compensation nor the manner of its determination has been specified and that is the ground on G 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 ofGujarat v. Shri Shanti/al Mangaldas and Ors. ( 1969) I SCC 509, this Court observed: H

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"Specification of principles means laying down general A 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." B 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, C 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- D grown their utility, and a host of other so-called principles are employed for determination of compensation payable for acquisition oflands, 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 E 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 ofno significant use to anybody except to the Corporation F as a part of the street. The land acquired may be wedge-shaped, sometimes irregular in contour and often shapeless. Ifthe 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 ofland for the street this principle will break down. But having regard to the fact that in the course . G of widening the street the Corporation may have 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 H

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