Page 1

1

Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11307 OF 2016 [Arising out of SLP [C] No.30998 of 2010]

Ravindra  Ramchandra Waghmare …. Appellant

Vs.

Indore Municipal Corporation & Ors. ….Respondents

WITH

Civil Appeal No. 11308 of 2016 (Arising out of SLP [C] No. 31541/2011), Civil Appeal Nos.11309-11316 of 2016 (Arising out of SLP [C] Nos. 469-476/2016), Civil Appeal Nos. 11317-11318 of 2016 (Arising out of SLP [C] Nos. 416-417/2016), Civil Appeal Nos.11319-11324/2016(Arising out of SLP [C] Nos. 14502-14507/2016), Civil Appeal No.11325 of 2016 (Arising out of SLP [C] No. 15380/2016), Civil Appeal No. 11326 of 2016 (Arising out of SLP [C] No. 14531/2016), Civil Appeal Nos.11327-330 of 2016(Arising out of SLP [C] Nos.14493-14496/2016), Civil Appeal No. 11331 of 2016 (Arising out of SLP [C] No. 15421/2016), Civil Appeal No. 11332 of 2016 (Arising out of SLP [C] No. 16750/2016), Civil Appeal No. 11333 of 2016 (Arising out of SLP [C] No. 16827/2016), Civil Appeal No. 11334 of 2016 (Arising out of SLP [C] No. 19012/2016), Civil Appeal No. 11335 of 2016 (Arising out of SLP [C] No. 16891/2016), and Civil Appeal No. 11336 of 2016 (Arising out of SLP [C] No. 16742/2016).

J U D G M E N T

ARUN MISHRA, J.

1. Leave granted.

Page 2

2

2. The appeals arise out of judgment and order dated 9.5.2016 passed by the

High Court of Madhya Pradesh at Jabalpur and as against order dated 30.9.2010

passed by the Division Bench of  the High Court  of Madhya Pradesh at  Indore

thereby affirming the judgment and order passed by the learned Single Judge.

3. The  matter  arises  out  of  Bhopal  Municipal  Corporation  and  Indore

Municipal Corporation. The action taken by the Municipal Corporations of Bhopal

and Indore under section 305 of Madhya Pradesh Municipal Corporation Act, 1956

(hereinafter  referred  to  as  ‘the  Act  of  1956’)  has  been  questioned.  The  Single

Bench  at  Jabalpur  had  allowed  the  writ  application  and  held  that  the  land  be

acquired under the provisions of the Act of 2013. Aggrieved thereby, writ appeals

were  filed  by Bhopal  Municipal  Corporation  which have  been  allowed  by the

impugned judgment and order dated 9.5.2016 by a Division Bench of the High

Court of M.P.

4. With  respect  to  Bhopal  the  facts  are  being  narrated  from  the  matter

in-between A.K. Pali & Ors. v. State of M.P. & Ors. The State Government through

Municipal Corporation, Bhopal as a nodal agency decided to develop Bus Rapid

Transit System Corridor (for short ‘BRTS corridor’) on the stretch of around 8

kms. As per Bhopal Development Plan, 2005 which was notified in the year 1995,

the proposed width of the road is 66 mtrs. Initially, the writ petitions were filed by

the  appellants  before  a  Single  Bench  in  the  year  2014  questioning  the  action

Page 3

3

initiated  by  the  Municipal  Corporation  on  the  ground  that  such  an  action  was

impermissible under the provisions of section 305 of the Act of 1956. At that time

the width of the road was 54 mtrs. The appellants’ main submission was that they

had  obtained  the  permission  from  the  Municipal  Corporation  so  as  to  raise

construction. For acquisition of the land, the provisions contained in the Right to

Fair  Compensation  and  Transparency  in  Land  Acquisition,  Rehabilitation  and

Resettlement Act, 2013 (hereinafter referred to as ‘the Act of 2013’) ought to have

been resorted to.  

5. Under the Jawaharlal Nehru National Urban Renewal Mission, the Central

Government had sanctioned the scheme called BRTS corridor for improvement of

public transport system at Bhopal in order to avoid hazardous traffic. The Central

Sanctioning & Monitoring Committee was constituted by the Ministry of Urban

Development which had sanctioned a sum of Rs.357.20 crores for implementation

of  said  scheme.  After  due  sanction  by  the  Committee,  NHAI  entered  into  an

agreement  with  Municipal  Corporation,  Bhopal  on  22.9.2009 and  handed  over

particular part of land to it for the purpose of BRTS corridor. For betterment of

public transport system 225 low floor buses were also sanctioned by Sanctioning

and Monitoring Committee of the Central Government. For BRTS corridor survey

was  undertaken  by  the  Expert  Committee  of  the  Central  Government  namely

Urban Mass Transit Council of Bhopal City. Plan was duly approved by the State

Page 4

4

Government  and  the  routes  were  notified  as  per  Plan  by  the  State  Transport

Authority. Presently only 1.25 lakh passengers are getting the services of low floor

buses. It is not in dispute that most of the BRTS corridor has been constructed and

the  route  from  Misrod  to  Bairagarh  is  under  operation.  Buses  are  plying

continuously.  The  appellants  are  land-holders  in-between  Misroad  to  Ampree

Chouraha. The Master Plan was prepared under the provisions of M.P. Nagar Tatha

Gram  Nivesh  Adhiniyam,  1973  (Town  &  Country  Planning  Act)  hereinafter

referred to as ‘the Act of 1973’. The Development Plan/Master Plan was prepared

as per the provisions of section 18 after inviting objections, suggestions. None of

the appellants had raised objection when the development plan was prepared. It

was finalized and published as per provisions contained in section 19(4).  

6. The development permission was granted by the competent authority under

the Act of 1973 as per the provisions contained in section 13(1)(b) and Rule 21(1)

framed under the Bhopal Vikas Adhiniyam, 1984 since repealed with effect from

April, 2012. The appellants have raised the construction of their building as per the

conditions  mentioned in  the map sanctioned by the authority  under  the  Act  of

1973.  They  were  required  to  keep  the  land  for  widening  of  road  in  question.

Accordingly, the landowners submitted their lay-out leaving requisite land from the

centre of  the  road  for  widening  of road. On that basis Municipal Corporation

Page 5

5

had granted permission to appellants. They were aware of the proposed width of

the road.

7. The appellants at the stage of the final hearing of writ appeals before the

High Court filed fresh writ petition/amended writ petition for questioning the vires

of the provisions contained in sections 305 and 306 of the Act of 1956. It was

averred that  there is no provision under the Act of  1973 of vesting of  land on

publication of Master Plan/Development Plan, particularly the land belonging to

private landowners. The acquisition has to be made under the provisions contained

in sections 8, 11 and 16 of the Act of 2013. State Government has no power to

reduce quantum of compensation prescribed under the Act of 2013. Sections 305

and 306 of the Act of 1956 are unconstitutional as they provide automatic vesting

of land without payment of reasonable compensation. The Act of 1956 fails to

provide appropriate compensation equivalent to that offered under the Act of 2013.

The provisions contained in sections 305 and 306 are violative of Article 14. The

provisions contained in sections 305 and 306 have become redundant due to the

provisions contained in the Act of 2013. It was submitted that the Corporation is

required to acquire the land for widening the streets as per the provisions contained

in sections 78 and 79 of the Act of 1956. Thus recourse to section 305 of the Act of

1956 is not permissible for divesting the owner of his right to ownership and that

too  without  payment  of  compensation.  Adoption  of  onerous  and  oppressive

Page 6

6

provision would be illegal and arbitrary.  The provision contained in section 305 is

more onerous and harsh as compared to the procedure laid down under section 56

of the Act of 1973. It was also submitted that in some of nearby areas the land is

being acquired for link road under the Act of 2013 whereas appellants are being

discriminated  with.  Two different  processes  of  acquisition  under  different  Acts

cannot be resorted to. It was also submitted that the provision contained in section

306  fails  to  provide  rational,  reasonable  principle  for  determination  of

compensation  for  deprivation  of  property  of  landowner.  Right  to  property  is

recognized under  section 300A and delayed payment  of  compensation leads to

deprivation of property without reasonable process. Section 306 does not provide

as to the time period within which compensation to be paid. Consequently, same is

violative of  Articles 14, 19 and 300A of the Constitution. It was submitted that the

provisions contained in section 306 be read down by incorporating the provisions

of the Act of 2013 in the light of principles enshrined therein while correlating it

with the provisions of section 387 of the Act of 1956. It was also submitted that

within the ken of section 305 of the Act of 1956, Corporation has no right to enter

and remove any part of the structure falling within building line.  

8. In the cases arising from the Indore Bench vires of the provisions of sections

305  and  306  of  Act  of  1956  have  not  been  questioned.  In  Indore  also  BRTS

corridor is being undertaken at the cost of Rs.868 crores. Same is being executed

Page 7

7

through the nodal agency of Indore Development Authority. State Government has

granted approval  to  the project  as  a  Town Development  Scheme under  section

49(ix) of the Act of 1973. As per appellants BRTS corridor is being undertaken on

a portion of Agra Bombay Road (AB Road). It was described as Major City Road

in the development plan, 1991 which was prepared and notified in the year 1975.

At the relevant time AB Road/MR-I was proposed to be as 40-50 mtrs. At the same

time it  was provided that  for  future the width of  said road would be 60 to 75

meters.  It was in conformity with the Master Plan of 1991; in the Master Plan of

2021 the width of the road is kept 60 meters. On 26.5.2007 a notice was issued for

demolition of certain structure for the purpose of widening of road. On 1.1.2008

Master Plan, 2021 had been notified  in which AB Road has been proposed as 60 to

75 meters. It was also pointed out that now a separate bye-pass road has been taken

out for AB Road. Thus the road in question forms part of the Major City Road that

is  MR-I,  width  of  which  has  to  be  60  meters.  Most  of  the  corridor  has  been

constructed except in some portion of the appellants. Development plan is binding

upon the authorities as well as the Corporation. As such, action has been rightly

taken under section 305 of the Act of  1956. Sections 305 and 306 provide for

reasonable compensation and when it is not accepted, recourse can be had to the

provisions  contained  in  section  387  of  the  Act  of  1956  which  provides  for

determination of compensation by the arbitrators/court on the basis of procedure

Page 8

8

laid down in the Land Acquisition Act, 1894. As soon as Master Plan/Development

Plan is finalized and published there is restriction upon the owner to raise any

construction in contravention of the plan and the Corporation is given the right to

remove any structure which is falling within the line of the existing public street or

to  be  constructed  in  future.  The  provisions  subserve  the  public  interest  and

widening of the road is necessary for development of rapid transport system. The

procedure prescribed with respect to public street is contained in section 305. Same

cannot be said to be illegal or arbitrary in any manner as reasonable compensation

is offered which may include FAR in appropriate cases and the provisions of the

Land Acquisition Act are also applicable as provided under section 387. Thus the

provisions cannot be said to be violative of Articles 14, 19, 21 and 300A of the

Constitution of India. The action taken falls within the purview of section 305 of

the Act of 1956.

9. On behalf of the appellants it was submitted by learned senior counsel that

the provisions contained in section 305 of the Act of 1956 are repugnant to the

provisions contained in the Act of 2013. Compensation is not offered before taking

possession. The provisions contained in section 305 of the Act of 1956 is violative

of the protection conferred under Articles 14, 19, 21 and 300A of the Constitution

and repugnant to the provisions contained in section 56 of the Act of 1973. It was

also contended that on proper interpretation of the provisions contained in section

Page 9

9

305, the Corporation has no right to remove  greater portion of the building or

material portion of the projecting part unless it has been taken down or burned

down or has fallen down. On notice, it is to be voluntarily removed by the owner

thereof. The Corporation can only remove the projecting part which is external to

the  main  building  as  verandah,  step  or  some  other  structure.  The  acquisition

proceedings have to be necessarily resorted to under the provisions contained in

sections 78 and 79 of the Act of 1956. Corporation has no right to enter forcibly to

remove the structure.  It  was also submitted that  without  preparation of  a  town

development scheme as envisaged under section 49 read with section 50 of the Act

of  1973,  it  is  not  permissible  to  carry  out  the  provisions  contained  in  the

development plan.  

10. On  the  other  hand  it  was  submitted  by  learned  senior  counsel  for  the

respondents that the action taken is in accordance with the development plan which

is binding. The provisions under section 305 cannot be said to be ultra vires. The

same provide for reasonable compensation. On proper interpretation of section 305

of  the  Act  of  1956  the  action  of  the  Corporation  is  within  its  ken.   It  is  not

necessary to acquire the land. Corporation has power to remove structure which

projects  beyond  the  regular  line  of  public  street.  The  maxims  Generalia

specialibus non derogant and  Generalibus specialia derogant have been pressed

into service to contend that if a special provision is made on a certain matter, that

Page 10

10

matter is excluded from the general provision. The scheme of the Act of 1973 has

been pointed out so as to explain the procedure how regional plan, development

plan  and town development  schemes are  prepared.  It  is  not  necessary  to  have

recourse to section 56 of the Act of 1973 or sections 78 and 79 of the Act of 1956

for acquisition of land.  

11. Before dilating upon the rival contentions it is necessary to take note of the

various statutory provisions.  

In re : Provisions of the Act of 1956 :

12. Section  5(45)  of  the  Act  of  1956  defines  ‘private  street’;  section  5(49)

defines ‘public street’; section 5(55) defines ‘street’. The provisions contained in

sections 5(45), 5(49) and 5(55) are extracted below :

“Section 5(45) “private street” means a street which is not a public street;

Section 5(49) “public street” means any street – (a) Over which the public have a right of way; or (b)Which have been heretofore leveled,  paved, metalled, asphalted,

channeled,  sewered or repaired out of municipal or other public funds; or

(c) Which under the provisions of this Act becomes a public street;  

And includes –

(i) The roadway over any public bridge or causeway; (ii) The footway attached to any such street; (iii) Public bridge or causeway, and the drains attached to any such

street, public bridge or causeway;

Page 11

11

Section 5(55) “street”  means any road, foot-way, square, court alley or  passage,  accessible,  whether  permanently  or  temporarily  to  the public, whether a thoroughfare or not;

and shall include every vacant space, notwithstanding that it may be private  property and partly  or  wholly obstructed by any gate,  post chain  or  other  barrier,  if  houses,  shops  or  other  buildings  about thereon, and if it is used by any persons as means of access to or from any public place or thoroughfare, whether such persons be occupiers of such buildings or not;

but shall not include any part of such space which the occupier of any such building has a right at all hours to prevent all other persons from using as aforesaid;

and shall include also the drains on either side and the land whether covered or not by any pavement, verandah or other erection, which lies on either side of the roadway up to the boundaries of the adjacent property,  whether  that  property  be  private  property  or  property reserved by Government or by the Corporation for any purpose other than a street;”

Section 330 of the Act of 1956 deals with conversion of streets into public

streets. Section 330(1) requires the Commissioner to declare the same to be public

streets in exigencies specified therein. Section 330(2) empowers the Commissioner

to declare street or part of a street not maintained by Corporation to declare the

same to be a public street. The decision has to be taken after inviting objections

and appeal can be preferred against such a decision as provided in section 330(3).

Section 330 is extracted hereunder :

“330.  Power to declare streets, when metalled, etc. public streets – (1) When any street has been levelled, metalled, tarred or asphalted,

Page 12

12

paved,  made  good,  lighted,  drained,  chanelled  and  flagged  to  the satisfaction  of  the  Commissioner,  he  shall,  if  so  required  by  the persons liable for the greater part of the expenditure on such street by notice put up in any part of such street, declare the same to be a public street.  The said street shall thereupon become a public street.

(2) The Commissioner may, at any time by a notice exhibited in any street  or  part  of  a  street  not  maintained  by  the  Corporation,  give intimation of his intention to declare the same a public street,  and, unless within one month next after such notice is first exhibited the owner or the majority of owners of such street or such part of street, lodges  or  lodge  objections  thereto  with  the  Corporation,  the Commissioner may by a notice exhibited in such street or part, declare the same to be a public street vested in the Corporation.

(3)   Any person  aggrieved by  a  notice  under  sub-section  (2)  may appeal within thirty days from the date of notice is first exhibited, to the District Court who shall give a reasonable opportunity of being heard to the appellant and the Corporation.

(4)  The provisions of Parts II and III of the Indian Limitation Act, 1908 relating to appeals shall apply to every appeal preferred under this section.”

13. Section 78 deals with acquisition of  immovable property or  easement  by

agreement. Section 79 deals with the procedure when it is not possible to acquire

property or easement by agreement. A Corporation has the power under Part V

with  respect  to  public  health,  safety  and convenience.  Chapter  XIII  deals  with

public  convenience,  Chapter  XIV  -  conservancy,  Chapter  XV  –  sanitary

provisions, Chapter XVI - water-supply, Chapter XVII – general provisions with

reference to drainage, water supply and water and other mains, Chapter XVIII with

public health and safety, Chapter XIX with markets and slaughter places, Chapter

Page 13

13

XX – food, drink, drug and dangerous articles, Chapter XXI - restraint of infection;

Chapter XXII - disposal of the dead. Part VI relates to lands, buildings and streets.

Chapter XXIII deals with town planning. Section 291 mandates for town planning

scheme. Section 292 contains the restriction on Corporation’s power to undertake

town planning scheme when any scheme under the Town Improvement Act has

been  formed  for  the  area  in  question.  Colonisation  is  dealt  with  in  Chapter

XXIII-A.  Chapter  XXIV  deals  with  building  control  under  the  provisions  of

section 293. There is restriction on construction without permission. Under section

295 Commissioner has the power to refuse erection or re-erection of  buildings.

Section  296  contains  the  provision  as  to  grounds  on  which  site  of  proposed

building  may  be  disapproved.  Section  297  deals  with  the  grounds  on  which

permission to erect or re-erect building may be refused. Section 299 confers the

power upon the Commissioner to direct  modification of a sanctioned plan of  a

building  before  its  completion.  Under  section  299A State  Government  has  the

power to cancel or revise permission for construction of a building. Section 300

mandates  for  lapse  of  sanction  after  one  year  from the  date  of  such  sanction.

Section 302 confers power upon the Commissioner to stop construction unlawfully

commenced. Section 303 confers power upon the Commissioner to direct removal

of person from a building in which works are unlawfully carried on or which are

unlawfully occupied. Erection and use of temporary building is to be approved by

Page 14

14

Commissioner as provided under section 304. Under Section 305, Corporation has

the power to regulate line of buildings. Section 306 deals with compensation to be

paid. With respect to dangerous and insanitary buildings, the Corporation has the

power from sections 309 to 316. With respect to public streets, Corporation has the

power under Chapter XXVI contained in sections 317 to 331. Section 322 prohibits

all obstruction in streets. Section 323 ensures streets not to be opened or broken up.

Section 318 provides for prohibition of projection upon streets. It is apparent that

ample and widest power has been conferred under the Act of 1956 upon the local

authorities in such matters in public interest.  

In re : Provisions of the Act of 1973 :

14. Provisions contained in the Act of 1973 are also required to be taken note of

along with the provisions contained in the Town Improvement Act which has a

reference in the Act of 1956 in section 292 thereof.

Under the Act of 1973, section 2(g) defines development plan includes a

zoning  plan.  It  defines  ‘local  authority’   to  mean  a  Municipal  Corporation

constituted by the Act of 1956, Municipal Council or Nagar Panchayat constituted

by or under the M.P. Municipalities Act, 1961 etc. Planning area, regional plan,

town development scheme and zone have been defined in section 2(o), 2(q), 2(u)

and 2(w) of Act of 1973 respectively. Same are extracted hereunder :

Page 15

15

“Section 2(o) “planning area” means any area declared to be a planning area under this Act and [non-planning area shall be construed accordingly];

Section 2(q) “regional plan” means a plan for the region prepared  under  this  Act,  and  approved  by  the  State Government;

Section  2(u) “town  development  scheme”  means  a scheme prepared for the implementation of the provisions of a development  plan  by  the  Town  and  Country  Development Authority and includes “scheme”;

Section 2(w) “zone”  means any section  of  a  planning area for which, under the development plan, a detailed zoning plan is prepared;”

15. Regional planning is dealt with in Chapter III. State Government has the

power to declare any area in the State to be a region for the purposes of the Act.

Director is empowered to prepare regional plan under section 5. Section 7 provides

for contents thereof. Section 8 provides for preparation of the same. Under section

8, objections and suggestions are invited then Director has to consider them as per

section 8(2), afford a reasonable opportunity to all the persons affected thereby of

being heard then the State  Government  may finalise  the  regional  plan  with or

without modifications. Proviso to sub-section (2) of section 9 mandates that in case

the  State  Government  modifies  the  draft  regional  plan  in  that  case  State

Government  has  to  publish  the  same  in  the  Gazette,  invite  objections  and

suggestions on the modifications proposed and after giving reasonable opportunity

of being heard, has to finalise it. Section 10 of the Act of 1973 provides that as

Page 16

16

soon  as  draft  plan  is  published,  no  person,  authority  or  department  of  the

Government or any other person shall change the use of land for any purpose other

than agriculture or carry out any development in respect of any land contrary to the

provisions of the draft plan, without the prior approval of the Director or an officer

not below the rank of a Deputy Director. Section 10(3) provides that in case any

work  is  carried  out  in  contravention  of  the  provisions  of  the  section,  the

Corporation or other local authority or the Collector in areas outside such local

areas of the authority may cause such work to be removed or demolished at the

cost  of  the  defaulter  which  shall  be  recovered  from him as  an  arrear  of  land

revenue. Removal or demolition is contemplated after notice and hearing. Section

11 of the Act of 1973 deals with exclusion from claims of compensation in certain

cases. If compensation in respect of such demolition has already been paid under

any other law, the owner shall not be entitled to any compensation by reason of the

restrictions under the Act.

16. Chapter  IV of  the  Act  of  1973  deals  with  the  planning  areas  and  fresh

development  plan.  As per  section  13 thereof,  State  Government  has  to  issue  a

notification for constituting planning areas and it can alter, amalgamate or divide

the area. Section 13(3) provides that once notification under section 13(1) of the

Act of 1973 has been issued a Corporation under the Act of 1956 and other local

authorities, as the case may be under the respective Acts ceases to exercise the

Page 17

17

powers, perform the functions and discharge duties which the State Government or

the Director is competent to exercise, perform and discharge under the Act. Section

13 is extracted hereunder :

“Section 13.  Planning area. – (1) The State Government may, by notification, constitute planning areas for the purposes of this Act and define the limits thereof.

(2) The State Government may, by notification, (a) alter the limits of the planning area so as to include

therein or  exclude therefrom such area as  may be  specified  in  the notification;

(b)  amalgamate  two  or  more  planning  areas  so  as  to constitute one planning area;

        (c) divide any planning area into two or more planning areas;

(d)declare that the whole or  part of the area constituting the planning area shall cease to be a planning area or part thereof.

       (3)  Notwithstanding anything contained in the Madhya Pradesh Municipal  Corporation  Act,  1956  (No.  23  of  1956),  the  Madhya Pradesh Municipalities Act,  1961 (No. 37 of  1961) or  the Madhya Pradesh  Panchayat  Raj  Adhiniyam,  1993  (No.1  of  1994),  the Municipal Corporation, Municipal Council or the Nagar Panchayat or a  Panchayat,  as  the case may be,  shall,  in  relation to the planning areas, from the date of the notification issued under sub-section (1), cease to exercise the powers, perform the functions and discharge the duties which the State Government or the Director is competent  to exercise, perform and discharge under this Act.”

17.   Section 14 deals with preparation of development plan. Section 15 deals with

the preparation of existing land use maps and once the existing land use map has

Page 18

18

been published under section 15, section 16 puts restriction upon the user of the

land for any purpose other than that indicated without permission in writing of the

Director and no local authority notwithstanding anything contained in any other

law, has the power to grant permission for change in the use of land otherwise than

as indicated in the existing land use map without the permission in writing of the

Director.  

18. Section 17 deals with the contents of the development plan. Section 18 deals

with  the  publication  of  draft  development  plan  prepared  under  section  14  and

objections thereto and suggestions in writing have to be invited within 30 days then

the Committee under section 17A(1) has to consider the objections and suggestions

and after giving reasonable opportunity to all persons affected thereby, of being

heard, suggest such modifications in the draft development plan as it may consider

necessary then it has to be submitted to the Director who in turn, within 30 days

has to submit the same to the State Government. Section 19 deals with the sanction

of  the  development  plan.  State  Government  under  section  19(1)  may  either

approve the development plan or may approve it with such modifications as it may

consider  necessary  or  may  return  it  to  the  Director  to  modify  the  same  in

accordance with such directions as may be deemed appropriate. In case the State

Government wants to notify the development plan with modifications, objections

and suggestions thereto have to be invited afresh within 30 days from the date of

Page 19

19

publication of  notice in  writing as mandated by section 19(2)  and after  giving

hearing  to  the  persons  and  considering  objections  and  suggestions  the  State

Government may confirm the modification in the development plan as provided in

section 19(3). As per section 19(4) development plan has to be published in the

Gazette. As per section 19(5), development plan shall come into operation from the

date of publication of the notice in the Gazette and as from such date shall  be

binding on all  Development Authorities and local authorities functioning in the

planning area. Sections 18 and 19 are extracted hereunder :   

“18.  Publication  of  draft  development  plan.  –   (1)  The Director  shall  publish  the  draft  development  plan  prepared  under Section 14 in such manner as may be prescribed together with a notice of the preparation of the draft development plan and the place or the places  where  the  copies  may be  inspected,  inviting  objections  and suggestions in writing from any person with respect thereto, within thirty days from the date of communication of such notice, such notice shall specify in regard to the draft development plan, the following particulars, namely,  

(i) the existing land use maps;

(i-a)  the natural  hazard prone areas with the description of  natural hazards;

(ii) a  narrative  report,  supported  by  maps  and  charts, explaining the provisions of the draft development plan;

(iii) the phasing of implementation of the draft development plan as suggested by the Director;

(iv) the provisions for enforcing the draft development plan and  stating  the  manner  in  which  permission  for development may be obtained;

Page 20

20

(v) approximate cost of land acquisition for public purposes and the cost of works involved in the implementation of the plan.

(2) The committee constituted under sub-section (1) of Section 17-A shall  not  later  than  ninety days after  the publication of  the notice under sub-section (1), consider all the objections and suggestions as may  be  received  within  the  period  specified  in  the  notice  under sub-section (1)  and shall,  after  giving reasonable opportunity to all persons affected thereby of being heard, suggest such modifications in the draft development plan as it may consider necessary, and submit, not  later  than  six  months  after  the  publication  of  the  draft development plan, the plan as so modified, to the Director together with all connected documents plans, maps and charts.

(3) The Director shall, within 30 days of the receipt of the plan and other documents from the committee submit all  the documents and plans so received alongwith his comments, to the State Government.

19.  Sanction of development plans.- (1) As soon as may be after the submission  of  the  development  plan  under  Section  18  the  State Government  may  either  approve  the  development  plan  or  may approve, it with such modifications as it may consider necessary or may return it to the Director to modify the same or to prepare a fresh plan in accordance with such directions as the State Government may deem appropriate.

(2) Where the State Government approves the development plan with modifications, the State Government shall, by a notice published in the  Gazette,  invite  objections  and  suggestions  in  respect  of  such modifications within a period of not less than thirty days from the date of publication of the notice in the Gazette.

(3)  After  considering objections and suggestions and after giving a hearing to the persons desirous of being heard, the State Government may confirm the modification in the development plan.

(4)The State Government shall publish a public notice in the Gazette and in such other manner as may be prescribed of the approval of the development plan approved under the foregoing provisions and the

Page 21

21

place or places where the copies of the approved development plan may be inspected.  

(5) The development plan shall come into operation from the date of publication of the said notice in the Gazette under sub-section (4) and as from such date shall be binding on all  Development Authorities constituted under this Act and all local authorities functioning with the planning area.”                                                     (emphasis added)

19. Section 25 of the Act of 1973 lays down that once Development Plan comes

into force the use and development of  land shall conform to the provisions of the

development plan.  It  was also provided in section 25(2) that diversion of land

shall  be subject  to  the  provisions  of  the Act  of  1973.  Section 25 is  extracted

below:

“25. Conformity with development plan – (1) After the coming into force of the development plan, the use and development of land shall conform to the provisions of the development plan:

     Provided that  the Director  may, at  its  discretion,  permit  the continued use of land for the purpose for which it was being used at the time of the coming into operation of the development plan:

     Provided further that such permission shall not be granted for a period exceeding seven years from the date of coming into operation of the development plan.

(2)  Notwithstanding  anything  contained  in  Section  172  of  the Madhya Pradesh Land Revenue Code, 1959 (No.20 of 1959) every permission to divert land granted under that section shall be subject to the provisions of this Act.”                                   (emphasis added)

20. It is apparent that the development plan once prepared is binding upon the

development  authorities  in  the  planning  area  as  well  as  on  the  Municipal

Page 22

22

Corporation and other local authorities as the case may be. They cannot modify

and permit the user in contravention thereof. In other words, restriction is imposed

upon the owners on enjoyment of the property in violation of the development

plan/regional plan, as the case may be.

21. Section 49 of the Act of 1973 deals with the town development schemes.

Same has to be prepared under the umbrella of the regional plan and development

plan.  The  town  development  scheme  is  prepared  by  the  Town  &  Country

Development Authority established under the provisions of section 38. The same

shall be a body corporate under the provisions of section 39 and its constitution is

provided in section 40. Section 49 of the Act of 1973 is extracted hereunder :

“49.  Town  Development  Schemes.- A  town  development scheme may make provision for any of the following matters, (i) acquisition, development and sale or leasing of land for the purpose of town expansion; (ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum; (iii) acquisition and development of land for public purposes such as housing  development,  development  of  shopping  centers,  cultural centers, administrative centers; (iv)  acquisition  and  development  of  areas  for  commercial  and industrial purposes; (v)  undertaking  of  such  building  or  construction  work  as  may  be necessary  to  provide  housing,  shopping,  commercial  or  other facilities; (vi) acquisition of land and its development for the purpose of laying out or remodeling of road and street patterns; (vii)  acquisition  and  development  of  land  for  playgrounds,  parks, recreation centres and stadium;

Page 23

23

(viii)  reconstruction  of  plots  for  the  purpose  of  buildings,  roads, drains, sewage lines and other similar amenities; (ix)  any  other  work  of  a  nature  such  as  would  bring  about environmental improvements which may be taken up by the authority with the prior approval of the State Government.”

22. Section 50 of the Act of 1973 provides for method of preparation of town

development  schemes.  The town development  scheme may deal  with the town

expansion, badly laid out areas or slums, acquisition and development of land for

housing, shopping centres, cultural centres, administrative centres, commercial and

industrial purposes, remodelling of road and street patterns, reconstruction of lands

for building roads, drains etc. Under section 50 draft plan has to be published,

objections have to be invited, heard and decided. Thereafter scheme is finalized,

same has to be published in the Gazette. Section 55 provides that the land needed

for town development scheme shall be deemed to be a land required for public

purpose  within  the  meaning  of  Land  Acquisition  Act.  Section  56  deals  with

acquisition of land for Town and Country Development Authority. Within 3 years

of preparation of town development scheme under section 50, the authority may

acquire  the  land  by  agreement  and  in  case  that  is  not  possible  the  State

Government at the request of the authority may proceed to acquire the land under

the provisions of the Land Acquisition Act.

Page 24

24

The town development scheme has to be executed by the authority within 3

years by acquiring the land in case it is necessary as per the provisions contained in

section 56.

23. It  is apparent from the provisions contained in the Act of 1973 the three

different  provisions  for  preparation  of  regional  plan,  development  plan  (master

plan) and town development scheme. The regional plan is prepared by the State

Government.  Development  plan  is  prepared  as  per  the  provisions  contained in

Chapter IV, sections 13 to 19 and once development plan has been finalized, it is

binding  on  development  authorities  as  well  as  the  Municipal  Corporation,

Municipal  Council  and other local  authorities  functioning in  the planning area.

Town development scheme can be framed by the development authorities and it

may declare its intention to do so with the prior approval of the State Government.  

In re : Town Planning Scheme of the Act of 1956 :

24. Section 291 of the Act of 1956 enjoins upon the Municipal Corporation to

prepare town planning scheme and in case the scheme has been sanctioned under

the provisions of Town Improvement Act, it is provided by section 292 of the Act

of 1956 that no town planning scheme shall be made by the Corporation. Sections

291 and 292 of the Act of 1956 are extracted hereunder :

“291.  Town  planning  scheme.- (1)  The  Corporation may, and if  so required by the Government shall,  within six months of the date of such requisition, direct the Commissioner

Page 25

25

to draw up a town planning scheme, which may, among other things, provide for the following matter, namely:-  (a) a direction that in any street, portion of a street or locality specified in the scheme the elevation and construction of the frontage of all buildings thereafter erected or re-erected shall, in respect of their architectural features, be such as may be fixed for the locality;  (b) a direction that in any street, portion of a street or locality specified in the scheme, there shall be allowed the construction only detached or semi-detached buildings or both, and that the land appurtenant to each building shall be of an area not less than that specified in the scheme;  (c) a direction that in any street, portion of a street or locality specified  in  the  scheme,  the  construction  of  more  than  a specified number of houses on each acre of land shall not be allowed;  (d) a direction that in any street, portion of a street or locality specified in the scheme, the construction of shops, warehouses, factories, huts or buildings of a specified architectural character or  buildings  designed  for  particular  purpose  shall  not  be allowed;  (e) a street line and a building line on either side or on both sides of any street existing or proposed;  (f) a standard plan, either for the division of land into building sites, or for the location of buildings within a building site;  (g)  the  amount  of  land  which  shall  be  transferred  to  the Corporation for public purposes and public streets by owners of land on payment of compensation;  (h)  the  prohibition  of  building  operations  permanently  or temporarily when by reason of  the situation or  nature of  the land,  the  erection  of  buildings  thereon  would  be  likely  to involve danger or injury to health, or excessive expenditure of public money in the provision of roads, sewers, water supply or other public services; (i) regulating in the interest of safety, the height and position of proposed walls, fences or hedges near the corners or bends of streets;  (j) limiting the number or prescribing the sites of new roads entering a highway maintained by the Government;

Page 26

26

(k)  regulating,  in  respect  of  the  erection  of  any  building intended to be used for purposes of business or industry, the provision of accommodation for loading, unloading or fuelling vehicles with a view to the prevention of obstruction of traffic on any highway; and  (l) a direction that in any street, portion of a street or locality specified in the scheme, the use of land for any purposes even though  not  involving  the  erection  of  building,  shall  not  be inconsistent with the provisions of this section with respect of buildings.

(2) When a scheme has been drawn up under the provisions of sub-section (1), the Commissioner shall  give public notice of the scheme and shall therein announce a date not less than 30 days from the date of such notice by which any person may submit  to  the  Commissioner  in  writing  any  objection  or suggestion with regard to the scheme which he may wish to make.

(3)  The  Commissioner  shall  within  fifteen  days  of  the  date announced under the provisions of sub-section (2), forward to the Mayor-in-Council the notice together with the objections or suggestions, if any, and his opinion therefor.

(4)  The  Mayor-in-Council,  shall  within  fifteen  days  of  the receipt of the documents relating to the scheme, forward them to  the  Corporation  together  with  the  opinion  of  the Commissioner and any comments which the Mayor-in-Council may make.  

(5)  The  Corporation  shall  consider  every  objection  or suggestion  with  regard  to  the  scheme  and  may  modify  the scheme in consequence of any such objection or suggestion and shall  then forward such scheme as originally drawn up or as modified,  together  with  the  documents  mentioned  in sub-section  (4)  to  the  Government  which  may  sanction  the scheme or sanction it with such modification as it may think fit or may refuse to sanction it, or may return it to the Corporation for reconsideration and re-submission by a specified date.

Page 27

27

(6)  If  the  Corporation  fails  to  submit  a  scheme  within  six months of being required to do so under sub-section (1) or fails to re-submit a scheme by a specified date when required to do so under sub-section (5), or re-submits a scheme which is not approved by the Government, the Government may draw up a scheme  which  shall  be  published  within  the  limits  of  the Corporation together with an intimation of the date by which any  person  may  submit  in  writing  to  the  Government  any objection  or  suggestion  which  he  may  wish  to  make.  The Government may sanction such scheme as originally published or modified in consequence of any such objection or suggestion as the Government may think fit.  

(7)  Notwithstanding  anything  contained  in  the  foregoing sub-sections if the Corporation in case of scheme initiated by it, decides to drop the scheme it  shall  intimate the Government accordingly.  

(8) The cost of such scheme, or such portion of the cost as the Government  may deem fit  shall  be paid from the Municipal Fund.  (9) When sanctioning a scheme the Government may impose the conditions for the submission of periodical reports on the progress  of  the  scheme  to  the  Government,  and  for  the inspection and supervision of the scheme by the Government.  

(10) No person shall erect or re-erect any building or take any other action in contravention of any such scheme or of any rule or byelaw made under the provisions of this Act.  

292. Restriction on Corporation’s power to undertake town planning  scheme  -- Notwithstanding  anything  contained  in section 291, no town planning scheme shall  be made by the Corporation  for  any  area  for  which  a  scheme  has  been sanctioned under the provisions of Town Improvement Act.”

          (emphasis added)

Page 28

28

It  is  apparent  that  section  292  of  the  Act  of  1956  refers  to  Town

Improvement  Act  which  was  in  vogue  in  different  areas  of  erstwhile  Madhya

Pradesh which has ultimately consolidated the different Acts into the M.P. Town

Improvement Trust Act, 1960 (hereinafter referred to as ‘the Act of 1960’).

25. The Act of 1960 provided for various improvement schemes under section

30. Section 31 of the Act of 1960 dealt with types of improvement schemes such as

general  improvement  schemes,  re-building,  re-housing,  street,  deferred  street

schemes  and  development  scheme.  10  types  of  schemes  were  provided  under

section 31. When scheme was proposed, consideration of representation was also

provided. The State Government had the power to sanction, reject or return the

improvement  scheme as  provided in  section  51.  In  case  the State  Government

sanctioned the scheme it was required to be notified under section 52 of the Act of

1960. The Act of 1960 has ceased to be operative in the areas, once the Act of 1973

has been made applicable by establishing  the authorities under the provisions of

sections 38 to 40. In our considered view, the expression ‘scheme’ in section 292

has  to  be  taken  to  mean  the  regional  plan,  development  plan  and also  to  any

scheme under  section  49  framed under  the  Act  of  1973.  The  provision  is  not

confined to a scheme prepared under sections 49 and 50 of the Act of 1973. There

cannot be two schemes for the same area.                            

In re : Scope of power of Corporation under Section 305 :                                

Page 29

29

26. Before taking the question of vires of the provisions contained in sections

305  and  306  of  the  Act  of  1956,  we  consider  it  appropriate  to  deal  with  the

submissions raised on behalf of the appellants with respect to its interpretation and

ken of powers conferred upon the Municipal Corporation. Section 305 of the Act

of 1956 is extracted hereunder :

“305. Power to regulate line of buildings.- (1) If any part of a building projects beyond the regular line of a public street,  either  as  existing  or  as  determined  for  the  future  or beyond  the  front  of  immediately  adjoining  buildings  the Corporation may-  (a)  if  the  projecting  part  is  a  verandah,  step  or  some  other structure external to the main building, then at any time, or  (b)  if  the  projecting  part  is  not  such  external  structure  as aforesaid, then whenever the greater portion of such building or whenever any material portion of such projecting part has been taken down or burned down or has fallen down, require by notice either that the part of some portion of the part projecting beyond the regular line or beyond the front of the immediate adjoining building, shall  be removed, or that such building when being rebuilt shall be set back to or towards the said line or front; and the portion of land added to the street by such setting back or removal shall henceforth be deemed to be part of the public street and shall vest in the Corporation :       Provided  that  the  Corporation  shall  make  reasonable compensation  to  the  owner  for  any  damage  or  loss  he  may sustain in consequence of his building or any part thereof being set back.  (2) The Corporation may, on such terms as it thinks fit, allow any building to be set forward for the improvement of the line of the street.”

27. It  was  submitted  on  behalf  of  the  appellants  that  for  the  exigencies

contemplated in clause (a) of sub-section (1) of section 305 when projecting part is

Page 30

30

external to the main building then notice can be issued at any time for removal of

projecting  part  such  as  verandah,  step  or  some  other  structure  and  in  case

projecting  part  is  as  provided in  section  305(1)(b)  whenever  projecting  part  is

greater  portion  of  such  building  or  whenever  any  material  portion  of  such

projecting part has been taken down or burned down or has fallen down then only

notice  can  be  issued.   No  notice  can  be  issued  by  the  Corporation  under  the

provisions of section 305(1) for its removal. The word ‘or’ in clause (b) in-between

greater portion of such building and material portion is not disjunctive. First part of

clause (b) has to be read conjunctively with the latter part. Even if greater portion

of such building and material portion of such projecting part is read disjunctively,

the words used taken down, burned down, fallen down qualify both the exigencies

provided in clause (b). The word ‘removal’ used in section 305(1) has to be read

for the situation in clause (a) only. For the situation covered by clause (b) notice is

issued only after happening of the mentioned event and that at the same time, when

building is proposed to be re-built, notice can be for “setting back” of the building.

It was also submitted that in a given situation when greater or material portion of

the building or projecting part has fallen down but some portion of the building

which is still projecting beyond the building line, in that situation Corporation can

legitimately  ask  the  owner  to  remove  the  remaining  projecting  portion  of  the

building. It was also submitted that the latter part of section 305 empowers the

Page 31

31

Corporation to issue a notice and require the owner to act in the manner stated to

remove  or  set  back  while  re-building.  The  section  does  not  empower  the

Corporation  to  enter  and  take  possession.  Thus,  Corporation  has  no  power  to

remove,  enter  or  take  possession  of  greater  portion  or  material  portion  of  the

building. It was also submitted that vesting takes place only after portion of the

land is added to the public street by setting back or removal. Till that exigency

happens,  property continues to  be that  of  the owner. Section 305 contemplates

voluntary action on the part of owner. There is conscious omission as to the power

of the Corporation to remove or enter which cannot be supplied  by the Court.

Municipal Authorities have to act within the confine of the powers conferred upon

them. They cannot commit trespass. Thus without acquisition of the land under

section 278 or 279, as the case may be, of the Act of 1956 on the refusal of the

owner  to  remove,  Corporation  has  no  right  to  have  the  land  and  remove  the

structure. Under the guise of Section 305, Corporation cannot invoke the power of

acquisition of land.

28. On behalf of the respondents, it was submitted that the provision contained

in section 305 authorises the Corporation to remove any part of the building. If any

part  of  building  projects  beyond  the  regular  line  of  building,  existing  or  as

determined for the future or beyond the front of  immediately adjoining buildings,

that part or some portion of the part projecting beyond the regular line or beyond

Page 32

32

the  front  of  the  adjoining  building  shall  be  removed.  The  action  taken  is  in

accordance with the law hence no interference is called for.

29. In our considered opinion, it is clear that Section 305 deals with the power of

Corporation to regulate line of  buildings. If any part of the building falls within

the regular line of a public street either existing or as determined for the future or

beyond the front of immediately adjoining building, the Corporation may issue a

notice either that part which is projecting or some portion of the part projecting,

shall be removed or that when the building is rebuilt, the portion projecting shall be

set back to and the portion of the land added to the street by such “setting back or

removal”, shall henceforth be deemed to be part of the public street and shall vest

in the Corporation. The words ‘that the part or some portion of the part projecting

beyond the regular line’ of the public street may be :  

(a) greater portion of such building which has not fallen down; or  

(b) that projecting part is verandah, step or some other structure external to the

main building; or  

(c)  whenever  any material  portion or  such material  part  has  been taken down,

burned down or has fallen down.  

All  the  abovesaid  exigencies  are  covered  in  the  ken  of  section  305(1).

Section 305 only contemplates issuance of a notice, in the case of a public street

that the part projecting is beyond the regular line of public street and is greater

Page 33

33

portion  or  material  portion  of  such  building  or  external  portion  to  the  main

building, shall be removed. It has to intimate its intention to remove the structure.

In case any portion of such material part has been taken down, burned down or has

fallen down, the Corporation may require by notice such portion shall be set back

to.  

30. We are not at all impressed by the submission that section 305 contemplates

only voluntary removal by the owner of the building. Section 305 is a wholesome

provision with respect to maintaining the regular line of a public street, existing or

as determined for the future, it clearly empowers the Corporation to intimate its

intention to remove that part of the structure projecting beyond the regular line of

public street under section 305. The primary statutory mandate is on Corporation to

act for removal. Obviously, it has power to remove is apparent from plain language

otherwise the provision will be of no utility. The  point  when  the  notice  can  be

issued is  clearly culled out  in  section 305.  In the  case of  clause  (a)  when the

projecting part is external to the main building such as verandah, step etc. then

notice can be issued at any time and two points of happening of exigencies are

provided separately in clause (b) : first, whenever projecting part is not an external

structure but is a greater portion of such building and it projects beyond the regular

line of public street and second exigency provided in clause (b) has to be read as

Page 34

34

“whenever any material portion of such projecting part has been taken down or

burned down or has fallen down”.

31. Even in  clause  (b)  of  section  305,  ‘removal’ is  contemplated  and  is  not

confined to a case under clause (a). The Legislature has used two expressions :

“whenever greater portion of such building” and secondly “whenever any material

portion  of  projecting  part  has  been  taken down or  burned down or  has  fallen

down”,  which   means  that  clause  (b)  clearly  fixes  the  time  for  action  that

‘whenever’ projecting part of greater portion of such building is projecting beyond

the  regular  line  of  public  street,  removal  can  be  made  or  ‘whenever’  material

portion of such projecting part has been taken down, burned down or fallen down,

it has to be set back and part which has not fallen down, has to be removed. The

removal is contemplated even in the latter exigency of clause (b) when material

portion of such part has been taken down, burned down or fallen down, still some

portion other than ‘material portion’ projecting in line may require removal which

has not been taken down, fallen down or burned down.  It is not that the expression

that entire building projecting in regular line of public street has been taken down,

burned down or fallen down. The expression in the latter part of clause (b) is taken

down, fallen down or burned down is not related to  the entire projecting part. Thus

the earlier part “whenever greater portion of such building” is projecting beyond

the regular line of public street, has to be read with respect to a building which has

Page 35

35

not fallen down, taken down or burned down. The word ‘or’ in section 305(1)(b)

used between greater portion of such building or whenever any material portion of

such building has to be read disjunctively.  Nonetheless ‘removal’ is contemplated

in all the exigencies. In case it has been taken down, burned down or fallen down,

it may require the material portion to be set back and remaining portion can be

removed in the latter exigency of clause (b) itself.

32. In our opinion, a notice can be issued by the Corporation for removal of the

existing structure also. The opening part of section 305(1) and its latter part after

clause (b) make it abundantly clear that a building or a part of the portion which

projects into the periphery of regular line of public street, can be removed. The

interpretation suggested on behalf of the appellants that in case the building has

been taken down, burned down or fallen down, only in that exigency action can be

taken  under  section  305(b)  and  not  otherwise,  would  render  the  provision

contained in section 305 and the provision as to public street in the development

plan otiose.

33. Learned counsel  for the appellant/s has placed reliance on the provisions

contained in sections 307(3), 309(2), 309(5), 309(6), 310 and 313 so as to contend

that statutory power has been conferred under those provisions and Commissioner

has  been  statutorily  authorized  on  the  failure  of  the  owner  to  remove  the

construction  after  notice  to  remove the  same.  Therefore,  it  was  submitted  that

Page 36

36

accordingly the provisions of section 305 should be construed by us so as to negate

the power of removal with the Corporation.  

34. In our opinion, the provision contained in section 307 is totally different.

Where an adjudicatory process is involved, person can show sufficient cause why

the building or work shall not be removed, altered or pulled down but in the cases

falling within the purview of section 305, there is no such adjudicatory process or

discretion provided. The expression used in section 307(2) is that show-cause has

to be made why the work shall not be removed, altered or pulled down, and a

person is required to show-cause and on his own failure to show “sufficient cause”

why such building or work should not be removed, Commissioner is authorized to

remove, alter or pull down the building or work under section 307(3). Since the

notice  which  is  contemplated  under  section  305  does  not  involve  such  a  case

showing sufficiency of cause in case building is falling within the regular line of

public street, the building is necessarily to be removed. The expression used is that

require by notice removal of the building, the legislative mandate for removal is

addressed to the Corporation also to remove the same. As such it was not necessary

to repeat it once over again in the provisions contained in section 305.  

35. Section 309 deals with the provisions regarding building unfit  for human

habitation. In that eventuality certain procedure is specified. We find absolutely no

ground to accept the submission that the procedure prescribed under section 309 or

Page 37

37

the provisions thereof should guide the interpretation of section 305 and for similar

reason  the  provisions  contained in  sections  310 and 313 relating  to  dangerous

building and removal of building material from any places in certain cases which

may be considered harming or breeding places for riot or other source of danger or

nuisance to the occupier, then a notice shall be required to be issued; and on failure

the Commissioner is empowered to remove; whereas the provisions of section 305

cast a mandate upon the Corporation to remove whatever is projecting beyond the

regular line of public street. The intendment of the aforesaid provisions is different,

hence render no help or guide so as to interpret the provisions of section 305. In

fact when all  the provisions are considered, the interpretation of section 305 is

fortified that it primarily mandates the Corporation to take action of removal on

satisfaction of exigencies specified therein.

In re : Possession/deemed to be part of public street and vesting under section 305 of the Act of 1956:

36. Coming to question as to when vesting takes place. As soon as the building

or the projecting part  has been removed or when the Corporation has issued a

notice when such re-building shall be set back or to the front line, the line added by

such  action  by  setting  back  or  removal,  shall  henceforth  without  any  further

formalities,  be  deemed  to  be  a  part  of  public  street  and  shall  vest  in  the

Corporation. Vesting does not depend upon the volition of the owner. Otherwise no

Page 38

38

public street can ever be brought in regular line. The Corporation has the power to

remove, as discussed hereinabove. As deemed vesting is provided under Section

305, as such there is no requirement of separate provision for taking possession.

For  removal  there  is  specific  provision  and  adequate  safeguards  have  been

provided  for  fixing  the  regular  line  of  a  public  street  while  preparing  the

development plan or the town development scheme, as the case may be.  

37. In The Municipal Corporation, Indore v. K.N. Palsikar AIR 1969 SC 579, a

question  arose  whether  it  was  open  to  the  Corporation  to  withdraw  from  the

acquisition. This Court has laid down that there is automatic vesting of land in the

Corporation  under  section  305 once  the  requisite  conditions  are  satisfied.  This

Court has observed as under :

“14. Regarding point No. 1, we agree with the High Court that there  is  no  provision  in  the  Act  for  enabling  the  Corporation  to withdraw from the acquisition proceedings.  In fact, it seems to us that there is automatic vesting of the land in the Corporation under Sec. 305 once the requisite conditions are satisfied.  …..”  

                                                                   (emphasis supplied)

As to the third question framed by this Court in Palsikar’s case (supra) to the

effect  that  when the Act  provides only for  compensation and not  any solatium

whether it could be paid. This Court laid down that once the Land Acquisition Act

is applicable under section 387 solatium can be claimed.   

38. It was also submitted that possession can be taken only after compensation

has been paid as held in State of Uttar Pradesh v. Hari Ram (2013) 4 SCC 280. It

Page 39

39

was submitted that there is a difference between de jure possession and de facto

possession.  It  was  also  submitted  that  mere  vesting  in  the  absence  of  specific

substantive provision providing for taking over of possession forcibly, does not

authorize any authority to take over the physical possession of any property. The

decision in State of U.P. v. Hari Ram (supra) is quite distinguishable and is based

upon  the  provisions  contained  in  section  10  of  the  Urban  Land  (Ceiling  and

Regulation)  Act,  1976  (in  short,  “the  Act  of  1976”).  Section  10(5)  whereof

provides after the land has vested to take possession by a notice. On failure to

comply with the notice to hand-over possession Competent Authority may take

possession under section 10(6) of the Act of 1976. Legal fiction of vesting has been

taken into consideration and discussed by this  Court  in the said decision.  This

Court  has  laid  down  that  while  the  meaning  of  the  legal  fiction  has  to  be

ascertained for what purpose it is created and should be carried as far as necessary

to achieve the legislative purpose, the word ‘vest’ in a statute has different meaning

in different contexts. This Court has also held that “vest/vested” therefore may or

may not  include  transfer  of  possession,  the  meaning of  which depends on the

context in which it has been used and the interpretation of various other related

provisions. This Court in  Hari Ram (supra) has discussed the meaning of  such

legal fiction thus :

“18. The legislature is competent to create a legal fiction, for the purpose  of  assuming existence of  a  fact  which does  not  really

Page 40

40

exist. Sub-section (3) of Section 10 contained two deeming provisions such as “deemed to have been acquired” and “deemed to have been vested absolutely”. Let us first examine the legal consequences of a “deeming  provision”.  In  interpreting  the  provision creating  a  legal fiction, the court is to ascertain for what purpose the fiction is created and after ascertaining this, the court is to assume all those facts and consequences  which  are  incidental  or  inevitable  corollaries  to  the giving effect to the fiction. This Court in  Delhi Cloth and General Mills Co. Ltd. v. State of Rajasthan (1996) 2 SCC 449 held that what can be deemed to exist under a legal fiction are facts and not legal consequences which do not flow from the law as it stands.

19. James, L.J. in Levy, In re, ex p Walton (1881) 17 Ch D 746 speaks on deeming fiction as: (Ch D p. 756)

“…  When a statute enacts that something shall be deemed to have been done, which in fact and [in] truth was not done, the court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to.”

24. The expression “deemed to have been acquired” used as a deeming fiction under sub-section (3) of Section 10 can only mean acquisition of title or acquisition of interests because till that time the land  may  be  either  in  the  ownership  of  the  person  who held  that vacant  land or  to  possess such land as owner or  as  a  tenant  or  as mortgagee and so on as defined under Section 2(1) of the Act. The word  “vested”  has  not  been  defined  in  the  Act,  so  also  the  word “absolutely”.  What  is  vested  absolutely  is  only  the  land  which  is deemed  to  have  acquired  and  nothing  more.  The  word  “vest”  has different meaning in different context; especially when we examine the meaning of “vesting” on the basis of a statutory hypothesis of a deeming  provision  which  Lord  Hoffmann  in  Customs  and  Excise Commissioners v. Zielinski Baker and Partners Ltd. (2004) 2 All ER 141 (HL) at para 11 described as “heroic piece of deeming”.

28. “Vest”/“vested”, therefore, may or may not include “transfer of possession”, the meaning of which depends on the context in which it  has  been  placed  and  the  interpretation  of  various  other  related provisions.”

Page 41

41

Though in the context of section 10 of the Urban Ceiling Act and provision

of taking possession, this Court in Hari Ram (supra) has laid down that “vesting”

under section 10 takes in every interest in the property including de jure possession

and not de facto but it is always open to a person to voluntarily surrender and give

possession under section 10(3) of the Act, which is not the position in the instant

case as held by us in removal of the building under section 305 of the Act of 1956,

it  is  implicit  that  once removal is  made,  vesting follows and possession stands

transferred  as  part  of  public  street.  When  we  consider  the  deeming  fiction  in

section 305 and vesting provision,  de jure and  de facto possession automatically

vested in the Corporation on the happening of the exigencies as provided in section

305.

39. It was submitted on behalf of  appellants that there is a conscious omission

in  the  provision  contained  in  section  305  with  respect  to  the  power  of  entry,

removal or to take possession. The appellants have relied upon the decision of this

Court in The Commissioner of  Sales Tax, U.P. Lucknow  v. M/s. Parson Tools &

Plants, Kanpur (1975) 4 SCC 22, thus  :

“16. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation, by analogy or implication, something what it thinks to be a general principle of justice and equity. To do so “would be entrenching upon

Page 42

42

the preserves of Legislature”, the primary function of a court of law being jus dicere and not jus dare.”

40. It was also submitted on behalf of the appellant/s that even if there is some

mistake or casus omissus or defect in the phraseology used by the Legislature, the

court cannot aid the Legislature’s defective phrasing of an Act or add and amend

or, by construction, make up the deficiencies which are left in the Act,  placing

reliance on the decisions in  Nalinakhya Bysack v. Shyam Sunder Haldar & Ors.

(1953) SCR 533;  Punjab Land Development & Reclamation Corporation Ltd. v.

Presiding Officer, Labour Court, Chandigarh (1990) 3 SCC 682; Union of India &

Anr. v. Deoki Nandan Aggarwal (1992) Supp. 1 SCC 323; and  Padma Sundara

Rao (Dead) & Ors. v. State of  T. N. & Ors. (2002) 3 SCC 533.

41. In  The Commissioner of Sales Tax, U.P., Lucknow v. M/s. Parson Tools &

Plants, Kanpur (supra), this Court has laid down that if the Legislature wilfully

omits to incorporate something of an analogous law in a subsequent statute,  or

even if there is a  casus omissus in a statute, the language of which is otherwise

plain and unambiguous,  the  Court  is  not  competent  to  supply the omission by

engrafting on it or introducing in it, under the guise of interpretation, by analogy or

implication, something what it thinks to be a general principle of justice and equity.

42. In Punjab Land Development and Reclamation Corpn. Ltd., Chandigarh v.

Presiding Officer, Labour Court (supra), this Court has laid down that when there

Page 43

43

is gap in the provision, it should be remedied by the legislature by amendment.

Court has only to interpret a statute and apply it to the facts. This Court has laid

down thus :

“79. The court has to interpret a statute and apply it to the facts. Hans Kelsen in his Pure Theory of Law (p. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law-applying organ (especially the court) on the other. According to him “jurisprudential interpretation is purely  cognitive  ascertainment  of  the  meaning  of  legal  norms.  In contradistinction to the interpretation by legal organs, jurisprudential interpretation  does  not  create  law”.  “The  purely  cognitive interpretation by jurisprudence is therefore unable to fill alleged gaps in the law. The filling of a so-called gap in the law is a law-creating function that can only be performed by a law-applying organ; and the function  of  creating  law  is  not  performed  by  jurisprudence interpreting law. Jurisprudential  interpretation can do no more than exhibit  all  possible  meanings  of  a  legal  norm.  Jurisprudence  as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law”. According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied: he must ‘interpret’ those norms (p. 348). Interpretation therefore is an intellectual activity which accompanies the process of law application in its advance from a higher level to a lower level. According to him, the law to be applied is a frame. “There are cases of intended or unintended indefiniteness at the lower level and  several  possibilities  are  open  to  the  application  of  law”.  The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive-legal ‘correctness’ of this decision is based on the statute itself. This theory describes the interpretive procedure as  if  it  consisted  merely in  an intellectual act of clarifying or understanding; as if the law-applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct  choice  could  be  made  in  accordance  with  positive  law. According to the author: “The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other

Page 44

44

of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow, (c) with the expression which the norm-creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other. In all these  cases,  the  law to  be  applied  constitutes  only  a  frame within which several  applications are  possible,  whereby every act  is  legal that stays within the frame”.

In Union of India & Anr. v. Deoki Nandan Aggarwal (supra), this Court has

laid  down that  courts  cannot  supply  omissions  to  a  statute  and a  court  cannot

invoke the principle of affirmative action to avoid discrimination so as to modify

the legislative policy. In Padma Sundara Rao (dead) & Ors. v. State of T.N. & Ors.

(supra),  this  Court  held  when  casus  omissus cannot  be  supplied  by the  Court.

Reliance has also been placed upon the decisions in Jones v. Wrotham Park Settled

Estates  &  Anr. (1979)  1  AER  286;  Inco  Europe  Ltd  &  Ors.  v.  First  Choice

Distribution (a firm) & Ors. (2000) 2 AER 109; and Singareni Collieries Co. Ltd.

v. Vemuganti Ramakrishan Rao & Ors. (2013) 8 SCC 789 which are the cases in

which the court has supplied omissions, the same is based upon the principle of

true intent of the Legislature and in order to give effect to the said intent, the courts

can  supply  words  which  appear  to  be  accidentally  omitted  or  if  the  literal

construction would in fact do violence to the legislative objective. For that, three

conditions must be satisfied before this course can be adopted : (i) that the intended

purpose of the statute is not being achieved by literal construction of the statute;

Page 45

45

(ii) that by inadvertence the draftsmen and Parliament failed to give effect to that

purpose in the provision; and (iii) the substance of the provision Parliament would

have made an be known with precision, though not in exact language, had the error

in the bill  been noticed.

43. There  is  no  dispute  with  the  principles  laid  down  by  this  Court  in  the

aforesaid dictums. However the language of section 305 is plain, simple and clear.

In our opinion there is no defect in the phraseology used. The exigencies when the

notice can be issued including the vesting part and deeming fiction are very clear.

In view of aforesaid discussion, we do not find any deficiency in the phraseology

used in section 305 of the Act of 1956, as such we do not venture to add, substract,

amend  or  by  construction  make  up  the  deficiencies.  We find  that  there  is  no

omission  or  lacunae,  much  less  casus  omissus as  submitted,  in  the  provisions

contained in section 305 of the Act of 1956.  

44. In the case of Municipal Corporation, Bhopal, the action has been taken as

per the development plan/master plan, 2005 notified in the year 1995. With respect

to Indore, action has been taken as per the Master Plan of 1991 notified in the year

1975 and Master Plan of 2021 has also been notified. Both are the cases of BRTS

corridor project. As such action has been taken under section 305 and in case of

Indore, it is also admitted that there was a scheme framed under section 49 read

with section 50 of the Act of 1973. In the case of Bhopal, the appellants have not

Page 46

46

pleaded  that  the  scheme  under  sections  49  and  50  has  not  been  prepared.

Nonetheless  the  fact  remains  that  Bhopal  Municipal  Corporation  has  initiated

action under section 305 pursuant to the permission given by the High Court by its

interim order to enforce the provisions of Development Plan, 2005 notified in the

year 1995 in which the width of the corridor has been so provided.

45. Gauged  in  the  aforesaid  perspective  various  provisions  and  in  particular

restrictive provisions contained in the Act of 1973, restrictions put on the user of

the land by the owner on erection, re-erection under the Act of 1956 etc.,  it  is

apparent  that  the  power  conferred  under  section  305  has  to  be  exercised  with

respect to regular line of a public street, either existing or as determined for future,

when  hearing has  already  been afforded while  laying down regular  line  under

section 18/19 of the Act of 1973 and the power is conferred by notice to remove

the building under section 305 of the Act of 1956 which includes all the powers

and steps which are  necessary for  removal of  such building.  The vesting takes

place, as soon as the building is removed or notice is served for the building to be

set back, land is deemed to be part of the street and shall vest in the Corporation.

Thus, by deeming fiction vesting takes place, as such there was no necessity of

specific provision for taking over of the possession that is implicit in the deeming

part and vesting of the property by legal fiction.

Page 47

47

In re : Section 78/79 of the Act of 1956 and Section 56 of the Act of 1973 :

46. It was also submitted that when the provisions of the statute are plain and

unambiguous, court shall not interpret the same in a different manner only because

harsh consequences arise therefrom and the authority should be asked to acquire

the land as per the provisions contained in section 79 of the Act of 1956. Section

305 is required to be harmoniously construed along with other provisions within

the constitutional limitations.  Reliance has been placed on a decision of this Court

in Nasiruddin v. Sita  Ram Agarwal (2003) 2 SCC 577.

47. It was also submitted on behalf of the appellants that when under section 56

of  the  Act  of  1973  land  has  been  acquired  for  town  development  scheme  by

development authorities, the power cannot be treated to be with the Corporation to

vest the property in the public street without its acquisition under the provisions of

section 305 of the Act of 1956 without acquisition under section 79 thereof. It is

necessary to notice the provisions contained in sections 78 and 79 of the Act of

1956 and section 56 of the Act of 1973. The provisions contained in sections 78

and 79 of the Act of 1956 are extracted  hereunder :

“78. Acquisition of immovable property or easement by agreement.-  (1) Whenever it is provided by this Act that the Commissioner may acquire or whenever it is necessary or expedient for any purpose of this Act that the Commissioner shall  acquire, any

Page 48

48

immovable  property,  such  property  may  be  acquired  by  the Commissioner on behalf of the Corporation by agreement on such terms and at such rates or prices, or at rates or prices not exceeding  such  maxima,  as  shall  be  approved  by  the Mayor-in-Council  either  generally  for  any  class  of  cases  or specially in particular case.  (2)  Whenever,  under  any  provision  of  this  Act  the Commissioner is authorized to agree to pay the whole or any portion of the expenses of acquiring any immovable property, he shall do so on such terms, and at such rates or prices, or at rates or prices not exceeding such maxima, as shall have been approved by the Mayor-in-Council:       Provided  that  no  agreement  for  the  acquisition  of  any immovable  property  under  sub-section  (1)  or  (2)  at  a  price exceeding  one  thousand  rupees  shall  be  valid  until  such agreement has been approved by the Corporation.  (3)  The  Commissioner  may,  on  behalf  of  the  Corporation acquire by agreement any easement affecting any immovable property vested in the Corporation and the provisions of  sub –sections (1) and (2) shall apply to such acquisition.  

79. Procedure when immovable property or easement can not be acquired by agreement.-  (1) Whenever the Commissioner is unable under Section 78 to acquire by agreement any immovable property or any easement affecting any immovable property or whenever any immovable property  or  any  easement  affecting  any  immovable  property vested in the Corporation is required for the purposes of this Act, the Government may in its discretion upon the application of  the  Commissioner  made  with  the  approval  of  the Mayor-in-Council order proceedings to be taken for acquiring the same on behalf of the Corporation as if  such property or easement  were  land  needed  for  a  public  purpose  within  the meaning of the Land Acquisition Act, 1894.  (2)  The  amount  of  the  compensation  awarded  and  all  other charges  incurred  in  the  acquisition  of  any  such  property  or easement shall,  subject to all  other provisions of this Act,  be forthwith  paid  by  the  Commissioner  and  thereupon  the  said property or easement shall vest in the Corporation.

Page 49

49

(3)  When  any  land  is  required  for  a  new  street  or  for  the widening or improving of an existing street, the Commissioner may proceed to acquire, in addition to the land to be occupied by the street, the land necessary for the sites of the building to be erected on both sides of the streets, and such land shall be deemed to be required for the purposes of this Act.”

Section 56 of the Act of 1973 is extracted hereunder :

“56. Acquisition of land for Town and Country Development Authority.-  The Town and Country Development Authority may at any time after the date of publication of the final town development scheme under  Section  50 but  not  later  than  three  years  therefrom, proceed  to  acquire  by  agreement  the  land  required  for  the implementation of the scheme and, on its failure so to acquire, the State  Government  may,  at  the  request  of  the  Town  and  Country Development  Authority  proceed  to  acquire  such  land  under  the provisions of the Land Acquisition Act, 1894 (No. 1 of 1894) and on the payment of compensation awarded under that Act and any other charges  incurred  by  the  State  Government  in  connection  with  the acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed.

Provided that the said agreement may contain such conditions and executed in such manner as may be prescribed.”

48. In  order  to  understand  the  procedure  of  compensation  prescribed  under

section 305, we have to take note of the provisions contained in sections 306 and

387 of the Act of 1956 also. The provisions are extracted hereunder :

“306.  Compensation.- (1)  No  compensation  shall  be claimable by an owner for any damage which he may sustain in consequence of the prohibition of the erection of any building.  

    (2) The Corporation shall make reasonable compensation to the  owner  for  damage  or  loss  which  he  may  sustain  in consequence of the prohibition of the re-erection of any building or  part  of  a  building  except  in  so  far  as  the  prohibition  is necessary under any rule or byelaw :

Page 50

50

     Provided that the Corporation shall make full compensation to the owner for any damage he may sustain in consequence of his  building  or  any  part  thereof  being  set  back  unless  for  a period of three years or more immediately preceding such notice the building has by reason of its being in a ruinous or dangerous condition become unfit for human habitation or unless an order of prohibition issued under section 286 has been and still is in force in respect of such building.  

    (3) The Corporation shall make reasonable compensation to the  owner  for  any  damage  or  loss  which  he  may  sustain consequence of the inclusion of his land in a public street but in assessing such compensation, regard shall be had to the benefits accruing  to  that  owner  from  the  development  of  the  land belonging to him and affected by such street.”

387.  Arbitration  in  cases  of  compensation,  etc.- (1)  If  an agreement is not arrived at with respect to any compensation or damages which are by this Act directed to be paid, the amount and  if  necessary  the  apportionment  of  the  same  shall  be ascertained and determined by a Panchayat of three persons of whom one shall  be appointed by the Corporation,  one by the party, to or from whom such compensation or damages may be payable or recoverable, and one, who shall be Sarpanch, shall be selected by the members already appointed as above.       (2) If either party or both parties fail to appoint members within one month from the date of either party receiving written notice from the other of claim to such compensation or damages, or if  the members fail  to select a Sarpanch, such members as may be necessary to constitute the Panchayat shall be appointed, at the instance of either party, by the District Court.       (3) In the event of the Panchayat not giving a decision within one month or such other longer period as may be agreed to by both the parties from the date of the selection of the Sarpanch or of the appointment by the District  Court of such members as may be necessary to constitute the Panchayat, the matter shall, on  application  by  either  party  be  determined  by  the  District Court  which  shall,  in  cases,  in  which  the  compensation  is

Page 51

51

claimed in respect of land, follow as far as may be the procedure provided by the Land Acquisition Act, 1894, for proceedings in matters referred for the determination of the Court :

    Provided that-  (a)  no  application  to  the  Collector  for  a  reference  shall  be necessary, and (b) the court shall  have full power to give and apportion the costs of all proceedings in manner it thinks fit.  

  (4) In any case where the compensation is claimed in respect of land and the Panchayat has given a decision, either party, if dissatisfied with the decision, may within a month of the date thereof  apply  to  the  District  Court  and  the  matter  shall  be determined  by  the  District  Court  in  accordance  with  the provisions of sub-section (3).

  (5) In any case where the compensation is claimed in respect of any land or building, the Corporation may after the award has been made by the Panchayat or the District Court, as the case  may  be,  take  possession  of  the  land  or  building  after paying  the  amount  of  the  compensation  determined  by  the Panchayat  or  the  District  Court  to  the  party  to  whom  such compensation, may be payable. If such party refuses to accept such  compensation,  or  if  there  is  no  person  competent  to alienate the land or building, or if there is any dispute as to the title  to  the  compensation  or  as  to  the  appointment  of  it,  the Corporation shall deposit the amount of the compensation in the District Court, and take possession of such property.”

49. We have  extracted  the  definitions  of  ‘private  street’,  ‘public  street’  and

‘street’ as defined in sections 5(45), 5(49) and 5(55) of the Act of 1956. Private

street means a street which is not a public street. Public street means any street

over which the public have a right of way or which have been leveled,  paved,

metalled,  asphatled,  channeled,  sewered  or  repaired  out  of  municipal  or  other

Page 52

52

public funds or which under the provisions of the Act, becomes a public street as

provided in section 330 and which includes the roadway over any public bridge or

causeway, footway attached to any such street, public bridge or causeway; and the

drains  attached  thereto.  Street  means  any road,  footway, square,  court  alley  or

passage, accessible whether permanently or temporarily to the public. Public street

and private street are separately defined – though the public street may also include

any street  provided in  section 5(49)  but  every street  is  not  a  public  street  and

private street is a street which is not a public street. Any street may be declared to

be public street under the provisions of section 330. In the exigencies as provided

in sub-section (1) thereof and Commissioner may also after inviting objections,

declare a street or part of the same to be public street, and an appeal is provided

against the decision. Under Section 305 the power is conferred on the Municipal

Corporation to remove building or any part of the building beyond the regular line

of  a  “public  street”;  whereas  the provisions  contained in  section  79(3)  is  with

respect to a new street or for widening or improving an existing street. There is

difference when there is  a public street  line,  the special  provision contained in

section  305  is  attracted.  The  recourse  to  the  provisions  of  acquisition  under

sections 78 and 79 is clearly ousted by the special provision contained in Section

305 of the Act of 1956. Being a special provision with respect to maintaining a

regular line of a public street which has been carved out by the Legislature under

Page 53

53

section 305 of the Act of 1956, would prevail upon the general provisions with

respect to acquisition of land as provided in sections 78 and 79 thereof.      

50. In “The Principles of Statutory Interpretation” by G.P. Singh, 13th Edn. 2012,

Chapter 2 in which it has been laid down that inconsistency and repugnancy to be

avoided and provisions should be harmoniously construed, the author has observed

thus :

“It has already been seen that a statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute.   Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between a section and other parts of the stature.   It is the duty of the courts to avoid “a head on clash” between two sections of the same Act and, “whenever  it  is  possible  to  do  so,  to  construe   provisions  which appear to conflict so that they harmonise”.  It should not be lightly assumed that “Parliament had given with one hand what it took away with the other”.  The provisions of one section of a statute cannot be used to  defeat  those of  another  “unless it  is  impossible   to  effect reconciliation  between  them”.  The  same  rule  applies  in  regard  to sub-sections of a section.  In the words of  GAJENDRAGADKAR, J.:  “The sub-sections must be read as parts of an integral whole and as being interdependent; an attempt should be made in construing them to reconcile them if it is reasonably possible  to do so, and to avoid  repugnancy”.   As  stated  by  VENKATARAMA AIYAR,  J.  : “The rule of construction is well settled that when there are in an enactment  two  provisions  which  cannot  be  reconciled  with  each other, they should be so interpreted that, if possible, effect should be given to  both.   This  is  what  is  known as  the  rule  of  harmonious construction”.  That,  effect  should  be  given  to  both,  is  the  very essence  of  the  rule.   Thus a  construction  that  reduces  one  of  the provisions to a “useless lumber” or “dead letter” is not harmonious construction.  To harmonise is not to destroy.  A familiar approach in all such cases is to find out which of the two apparently conflicting provisions  is  more  general  and  which  is  more  specific  and  to

Page 54

54

construe the more general one as to exclude the more specific. [South India  Corporation  (P)  Ltd.  v.  Secretary,  Board  of  Revenue, Trivandrum, AIR 1964 SC 207, p. 215 : 1964 (4) SCR 280; Weverly Jute Mills Co. Ltd. v. Raymon & Co. (India) (Pvt.) Ltd, AIR 1963 SC 90 p.95: (1963)  3 SCR 209; J.K. Cotton Spinning & Weaving Mills v. State of U.P., AIR 1961 SC 1170 p.1194: (1962) 1 SCJ 417: (1961) 3 SCR 185; Paradip Port Trust v. Their Workmen, AIR 1977 SC 36, p.44:  1977  SCC  (L&S)  253;  U.P.  State  Electricity  Board  v. Harishanker, AIR 1979 SC 65; (1978) 4 SCC 16: 1978 SCC (Lab) 481; Life Insurance Corporation of India v. D.J. Bahadur, AIR 1980 SC 2181, pp.2202, 2208; State of U.P. v. Renusagar Power Co., AIR 1988  SC  1737,  p.1751:  1988  (4)  SCC  59;  State  of  Rajasthan  v. Gopikishan, supra, p.1756. See further Life Insurance Corporation of India v. S.V. Oak, AIR 1965 SC 975, p.980: 1965 (1) SCR 403 (Compulsive provision will control a discretionary provision].  The question as to the relative nature of the provisions general or special has to be determined with reference to the area and extent of their application  either  generally  or  specially  in  particular  situations. [Collector of Central Excise Jaipur v. Raghuvar (India) Ltd. JT 2000 (7)  SC  99,  p.111;  (2000)  5  SCC  299:  AIR  2000  SC  2027]   The principle  is  expressed  in  the  maxims  Generalia  specialibus   non derogant,  [General  things  do  not  derogate  from  special  things. Osborn’s  Law  Dictionary]  and  Generalibus  specialia  derogant [Special  things  derogate  from  general  things.  Osborn’s  Law Dictionary].  If a special provision is made on a certain matter, that matter is excluded from the  general provision.[Venkateshwar Rao v. Govt. of Andhra Pradesh, AIR 1966 SC 828: (1966) 2 SCR 172; CIT, Patiala  v. Shahzada  Nand  & Sons,  AIR  1966  SC 1342,  p.  1347: (1966) 3 SCR 379; State of Gujarat v. Patel Ramajibhai Danabhai, AIR 1979 SC 1098, p.1103;  1979 (3)  SCC 347; State  of  Bihar v. Yogendra  Singh,  AIR  1982  SC  882,  p.886:  (1982)  1  SCC  664; Maharashtra  State  Board  of  Secondary  and  Higher  Secondary Education v. Paritosh Bhupesh Kumar Sheth, (1984) 4 SCC 27, p.47: AIR 1984 SC 1543; State of Rajasthan v. Gopikishan, supra, p.1756]. Apart from resolving conflict between two provisions in the Act, the principle  can  also  be  used  for  resolving  a  conflict  between  a provision in the Act and a rule made under the Act.  Further, these principles have also been applied in resolving a conflict between two different Acts and two provisions in the Constitution added by two different Constitution Amendment Acts.  and in the construction of

Page 55

55

statutory rules and statutory orders.  But the principle, that a special provision on a matter excludes the application of a general provision on that matter, has not been applied when the two provisions deal with  remedies,  for  validity  of  plural  remedies  cannot  be  doubted. Even if the two remedies happen to be inconsistent, they continue for the person concerned to choose from, until he elects one of them.”                                                                               (emphasis supplied)

It  is  apparent  that  the  maxims  Generalia  specialibus  non  derogant and

Generalibus specialia  derogant have to be applied in  particular  situations.  If  a

particular provision is made on a certain matter, that matter is excluded from the

general provision. Author has referred to the law as laid down by this Court, inter

alia, in  Venkateshwar Rao v. Government of Andhra Pradesh AIR 1966 SC 828;

C.I.T. Patiala v. Shahzada Nand & Sons AIR 1966 SC 1342;  State of Gujarat v.

Patel Ramajibhai Danabhai (1979) 3 SCC 347; State of Bihar v. Yogendra Singh

(1982)  1  SCC  664;  and  Maharashtra  State  Board  of  Secondary  and  Higher

Secondary Education v. Paritosh Bhupesh Kumar Sheth (1984) 4 SCC 27.

51. Even assuming that  public  street  is  also  a  street,  considering the special

provisions contained in section 305, recourse can be had to the provision without

having adverting to the procedure prescribed under sections 78 and 79 of the Act

and the compensation in the case of action is taken under section 305 is provided

under proviso to section 305 and section 306 read with section 387 to which the

provisions  of  the  Land  Acquisition  Act,  1894  have  been  made  applicable  for

determination.   Section  387  provides  for  procedure  in  case  compensation

Page 56

56

determined under section 306 is not acceptable,  dissatisfied claimants can have

resort  to  section  387  which  require  determination  of  dispute  by

Panchayat/arbitration, and in case arbitration fails, parties can approach the District

Court which shall follow the procedure provided in Land Acquisition Act, 1894.

The provision of section 387 is very wide and covers all the cases in which an

agreement is not arrived at with respect to compensation or damages which are

under  the  Act  directed  to  be  paid.  Section  387 would  cover  the  provisions  of

compensation payable under sections 305 and 306 of the Act of 1956. Sections 305

and 306 use the expression ‘reasonable compensation has to be paid’ which would

mean, reasonable on the principle acceptable in accordance with law. It cannot be

fanciful or arbitrary one as suggested by the appellants.

52. The submission raised by the appellants that for acquisition of land, sections

78 and 79 should be resorted to for the purposes mentioned in section 305 cannot

be accepted for  yet  another reason,  if  the provision as to public street  is  made

dependent upon the acquisition of land, the very purpose behind the provisions of

section 305 would be frustrated as well as the public interest, there is already a

regular line of public street fixed under development plan and is binding under

section 19(5) and section 25 of the Act of 1973. Various rights of ownership which

ordinarily vest in an owner, are restricted by the regional plan, development plan or

the  town development  scheme,  as  the  case  may be.  User  of  the  owner’s land,

Page 57

57

property cannot be in derogation to any of  them. Development  plan is binding

upon the Corporation and local authorities and all concerned including the owners.

Though they can transfer the property but subject to such restrictions which the

property will carry with it. If the land falls in a regular line of public street, no

construction can be raised, no projection can be made by owner whereas it can be

removed or set back, as the case may be. In case acquisition is resorted to under

sections 78 and 79, public street can never be widened and the entire purpose of

preparation of  Development Plan shall stand defeated.

53. What  can  be  achieved  by  procedural  safeguards  in  case  the  property  is

acquired under the provisions of the Land Acquisition Act, 1894 or the Act of 2013

by way of holding inquiry, such exercise has already been taken care of  while

preparing regional plan, development plan or the town improvement scheme. The

widening of the public street cannot brook any delay. The provisions contained in

section  387(5)  which  empower  the  Corporation  to  take  possession  after

determination  of  compensation  by  arbitration  or  by  District  Court,  would  be

applicable only to the acquisition resorted to under sections 78 and 79, particularly

under the provisions of section 79 and not to a case which is covered by the special

provisions contained in section 305 where the vesting is deemed to be by operation

of law as soon as there is deemed vesting, the area shall vest in the Corporation and

it shall be deemed to be a part of public street. Thus the provision of section 387(5)

Page 58

58

is not attracted when it is deemed to be part of the public street on vesting in the

Corporation. The process under section 305 read with sections 306 and 387 is just,

fair  and  reasonable.  The  FAR  is  offered  by  the  Corporation  as  well  as

compensation and if  it  is not acceptable,  recourse can be had to the provisions

contained in section 387 of the Act of 1956. It is not for this Court to adjudicate

upon the issue in which case FAR would be suitable as part of compensation and

what  would  be  the  impact  of  conversion  of  FAR  into  TDR  i.e.  Transferable

Development Right. Compensation in monetary terms is claimable under sections

305, 306 and 387. Thus, when recourse to section 305 is made by the Corporation,

it is not necessary to make acquisition under section 78 or 79 of the Act of 1956.

54. Provision of section 56 of the Act of 1973 has also been pressed into service

to contend that the authorities under the Act of 1973 are also required to acquire

the land by agreement or under the provisions of the Land Acquisition Act for

carrying out the purpose of development plan as such, this Court should record a

conclusion  that  the  provisions  of  section  78/79  of  the  Act  of  1956  should  be

resorted to. Reliance has been placed on  Afjal Imam v. State of  Bihar & Ors.

(2011) 5 SCC 729 wherein this Court has considered the basic rule of harmonious

construction, when cross reference of relevant provisions should be made and in

order  to  reconcile  two  apparently  inconsistent  provisions,  one  can  be  read  as

Page 59

59

“subject to” the other and if necessary reading down of the provisions has to be

made.   

We do not find any substance in the submission as for building line with

respect to public street, a specific provision is contained in section 305 which will

prevail over the general provisions as held by us. Thus the submission is rejected.

55. It was also submitted that when the law requires a thing to be done in a

particular manner, that thing can be done in that manner only and other modes of

doing  it  are  excluded.  For  this  reliance  has  been  placed  on  the  decisions  in

Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors. (2003) 2 SCC 111

on the following passage :   

“40. The statutory interdict of use and enjoyment of the property must  be  strictly  construed.  It  is  well  settled  that  when  a  statutory authority is required to do a thing in a particular manner, the same must  be  done  in  that  manner  or  not  at  all.  The  State  and  other authorities while acting under the said Act are only creature of statute. They must act within the four corners thereof.”

56. This Court’s decision in Laxmi Devi v. State of Bihar & Ors. (2015) 10 SCC

241 has been relied in which it has been laid down thus :

“16. The  salient  concomitants  of  Section  17(1)  deserve enumeration.

16.1. Firstly, the section is attracted even though an award has not been  made  which,  it  appears  to  us,  clearly  indicates  that  the completion of this exercise has not been obliterated or dispensed with but  has  been  merely  deferred.  An  unambiguous  and  unequivocal statement  could  have  been  made  excluding  the  requirement  of publishing an award.

Page 60

60

16.2. Secondly, it is available only on the expiration of fifteen days from the issuance of Section 9 notice. This hiatus of fifteen days must be honoured as its  purpose appears to be to enable the affected or aggrieved parties to seek appropriate remedy before they are divested of the possession and the title over their land. The Government shall perforce have to invite and then consider objections preferred under Section  5-A,  which  procedure,  as  painstakingly  and  steadfastly observed by this Court, constitutes the constitutional right to property of every citizen; inasmuch as Section 17(4) enables the obliteration of this valuable right, this Court has repeatedly restated that valid and pressing reasons  must  be present  to  justify  the  invocation  of  these provisions by the Government.

16.3. Thirdly,  possession  of  the  land  can  be  taken only  if  it  is needed for public purpose, which term stands defined in the preceding Section  3(f).  A conjoint  reading  of  Sections  17  and  3(f)  makes  it apparent to us that urgency provisions cannot be pressed into service or resorted to if the acquisition of land is for companies; however, we must be quick to add that this question does not arise before us.

16.4. Fourthly,  possession  of  such  lands  would  vest  in  the Government only when the foregoing factors have been formally and strictly  complied  with.  This  section  enables  the  curtailment  of  a citizen’s constitutional right to property and can be resorted to only if the provisions and preconditions are punctiliously and meticulously adhered to, lest the vesting be struck down and set aside by the court in its writ jurisdiction, on the application of  Taylor v.  Taylor  (1875) LR  1  Ch  D  426 and  several  judgments  of  this  Court  which  has followed this decision (supra).”

There is no dispute with the aforesaid propositions but in the instant cases

the specific procedure prescribed for widening of the public street to remove the

projection  in  the  regular  line  of  public  street  has  been  adopted  which  is  a

wholesome procedure. Thus there is no violation of law as the prescribed mode is

being followed.

In re : Development Plan and Town Planning Scheme :

Page 61

61

57. It  was  also  submitted  that  there  is  difference  between  acquisition  and

reservation. A development plan merely creates a restriction on user of the property

and the land does not vest in the State or the development authority on publication

of the master plan/development plan. Reliance has been placed on the decision of

this Court in Girnar Traders (3) v. State of Maharashtra & Ors. (2011) 3 SCC 1.

Reference has been made to para 155 and the same is extracted hereunder:

“155. The  Court  has  to  keep  in  mind  the  clearly  stated  legal distinction  between  reservation  and  designation  on  one  hand  and acquisition on the other. These  are  well-defined terms used by the legislature  in  both  the  enactments  and  they  do  not  admit  of  any synonymity  or  interchangeability. The reservation under  the MRTP Act necessarily may not mean and include acquisition. The acquisition under the Land Acquisition Act may not necessarily mean and include reservation.  They are well-explained concepts within the legislative scheme of the respective Acts. It may not be necessary at all for an appropriate authority to always acquire the entire or part of the land included in the planned development, while there may be cases where the  land  is  acquired  for  the  purpose  of  completing  planned development. With this distinction in mind, let us, again, refer to some of the relevant provisions of both the enactments.”

The aforesaid submission is too tenuous to be accepted. There is restriction

put  on  the  ownership  rights  and  in  the  area  no  construction  can  be  raised

derogatory to the development plan/master plan. When the property vests is clearly

culled  out  in  section  305,  however  the  property  is  held  by  owner  once  a

development plan is prepared, subject to that use and it is not necessary to acquire

the land as already discussed by us for the purposes mentioned under section 305.

Section 305 is otherwise also a reasonable method of acquisition of the property

Page 62

62

and it  follows a  detailed procedure for  preparation of  development plan/master

plan  or  a  town  improvement  scheme,  as  the  case  may  be,  which  involves

adjudicatory  process  and  once  action  is  taken  under  section  305,  reasonable

compensation follows, special procedure as prescribed, is a complete Code in itself

and even if a person is not satisfied, he can claim adjudication under section 387

where the procedure of the Land Acquisition Act, 1894  is applicable.

58. It was submitted in Bhopal Municipality matters that in the absence of a

scheme having been framed under section 50 of the Act of 1973, the provisions of

section 305 of the Act of 1956 could not be invoked, prior statutory exercise under

section 291 thereof is necessary which has also not been done. Attention has also

been drawn to paragraphs 5.17, 5.18 and 5.19 of W.P. No.5682 of 2016. In para

5.17 it has been pleaded that if it is held that any existing street will be treated as

building line by the Commissioner, Municipal Corporation or for that matter that

the building line determined by the Commissioner shall be the final building line

for the purpose of section 305 then on that ground also section 305 would become

arbitrary,  discriminatory  and  violative  of  Article  14  of  the  Constitution.  It  is

reiterated in para 5.17 that there has to be the building line determined only after

following  the  procedure  and  rigors  of  section  291.  Again  in  para  5.18

non-compliance with the provisions of section 291 has been pleaded. In para 5.19

it has been pleaded that until the Corporation undertakes a statutory exercise of

Page 63

63

acquisition as mandated under the Act of 2013, they are not legally entitled to take

physical possession of the land. In our considered opinion the pleadings in paras

5.16, 5.17, 5.18 and 5.19 do not at all amount on fact or on legal aspect that there

was no scheme under the provisions of sections 49 and 50 framed by the Bhopal

Development Authority under the Act of 1973. Thus the respondent-Corporation

was not required to reply in the matter of Bhopal what has not been averred by the

appellants with respect to framing of the scheme under sections 49 and 50 in the

aforesaid writ petitions.   

59. The interpretation suggested upon section 292, as to the expression scheme

under section 291 of the Act of 1956 or only to a scheme under section 49/50 of the

Act of 1973 cannot be accepted. We have also discussed the provisions of the Act

of 1973 and the provisions of section 292 of the Act of 1956. Under the Act of

1973, there is a regional plan, development plan or town development scheme they

have to be understood included in expresssion ‘scheme’ under the provisions of

section 292.  

60. On merits also, submission based upon sections 49 and 50 of the Act of 1973

is  found  to  be  untenable.    Development  plan  itself  is  binding  and  has  to  be

implemented by the Corporation not only under the provisions of section 292 but

also under the provisions of section 66(1)(y) of the Act of 1956 which mandates a

duty upon the Corporation for fulfilling any obligation imposed by the Act or under

Page 64

64

any other law for the time being in force. Provision of section 66(1) is extracted

hereunder :

“66.  Matters to be provided for by Corporation.-  (1)  The Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters, namely:-  xxx xxx xxx  (y) fulfilling any obligation imposed by this Act or any other law for the time being in force;”

Thus Corporation while taking action, is simply carrying out the mandate of

sections 19(5), 25 and other provisions of the Act of 1973. Framing of the scheme

under  section  291 as  already held,  is  precluded  by virtue  of  the  provisions  of

section 292, in view of the existence of development plan which is final as to width

of road or town development scheme, as the case may be.  

61. It  was  also  submitted  that  Town  Planning  and  Municipal  Institutes  are

regulating and restricting the use of private property under the aforesaid Acts. They

are “expropriatory legislation”. Thus they are liable to be construed strictly as laid

down  in  Chairman,  Indore  Vikas  Pradhikaran  v.  Pure  Industrial  Coke  &

Chemicals  Ltd.  &  Ors. (2007)  8  SCC  705.  In  the  said  case  the  decision  in

Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai & Ors. (2005) 7 SCC

627 has been referred to, wherein this Court has considered the question and laid

down thus :

Page 65

65

“59. In  Hindustan  Petroleum  Corpn.  Ltd. v.  Darius  Shapur Chenai  (2005)  7  SCC  627 construing  Section  5-A  of  the  Land Acquisition Act, this Court observed: (SCC pp. 634-35, para 6-7)

“6. It is not in dispute that Section 5-A of the Act confers a valuable right in favour of a person whose lands are sought to be  acquired.  Having  regard  to  the  provisions  contained  in Article 300-A of the Constitution, the State in exercise of its power  of  ‘eminent  domain’  may  interfere  with  the  right  of property of a person by acquiring the same but the same must be for a public purpose and reasonable compensation therefor must be paid.

7. Indisputably, the definition of public purpose is of wide amplitude and takes within its sweep the acquisition of land for a corporation owned or controlled by the State, as envisaged under sub-clause (iv) of Clause (f) of Section 3 of the Act. But the  same  would  not  mean  that  the  State  is  the  sole  judge therefor and no judicial review shall lie. (See Jilubhai Nanbhai Khachar v. State of Gujarat (1995) supp (1) SCC 596)”

It was further stated: (SCC p. 640, para 29) “29. The Act is an expropriatory legislation. This Court in

State  of  M.P. v.  Vishnu  Prasad  Sharma  AIR 1966  SC 1593 observed that in such a case the provisions of the statute should be strictly construed as it deprives a person of his land without consent. [See also Khub Chand v. State of Rajasthan AIR 1967 SC 1074 and  CCE v.  Orient Fabrics (P) Ltd.  (2004) 1 SCC 597] There  cannot,  therefore,  be  any  doubt  that  in  a  case  of  this

nature due application of mind on the part of the statutory authority was imperative.”

In  State of Rajasthan v.  Basant Nahata  (2005) 12 SCC 77 it was opined: (SCC p. 102, para 59)

“In absence of any substantive provisions contained in a parliamentary or  legislative  act,  he  cannot  be refrained from dealing with his property in any manner he likes. Such statutory interdict  would  be  opposed  to  one’s  right  of  property  as envisaged under Article 300-A of the Constitution.”

Page 66

66

In  State of U.P. v.  Manohar  (2005) 2 SCC 126 a Constitution Bench of this Court held: (SCC p. 129, paras 7-8)

“7.  Ours  is  a  constitutional  democracy  and  the  rights available  to  the  citizens  are  declared  by  the  Constitution. Although  Article  19(1)(f)  was  deleted  by  the  Forty-fourth Amendment to the Constitution, Article 300-A has been placed in the Constitution, which reads as follows:

‘300-A. Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.’ 8. This is a case where we find utter lack of legal authority

for deprivation of the respondent’s property by the appellants who are State authorities.” In Jilubhai Nanbhai Khachar v. State of Gujarat (supra) the law

is stated in the following terms: (SCC p. 622, para 34) “34.  The  right  of  eminent  domain  is  the  right  of  the

sovereign State, through its regular agencies, to reassert, either temporarily or permanently, its dominion over any portion of the  soil  of  the  State  including  private  property  without  its owner’s  consent  on  account  of  public  exigency  and  for  the public good. Eminent domain is the highest and most exact idea of property remaining in the Government, or in the aggregate body of the people in their sovereign capacity. It gives the right to resume possession of the property in the manner directed by the Constitution and the laws of the State, whenever the public interest  requires  it.  The  term  ‘expropriation’  is  practically synonymous with the term ‘eminent domain’.” It was further observed: (SCC p. 627, para 48)

“48.  The word ‘property’ used in Article 300-A must be understood  in  the  context  in  which  the  sovereign  power  of eminent  domain  is  exercised  by  the  State  and  property expropriated.  No abstract  principles could be laid.  Each case must be considered in the light of its own facts and setting. The phrase ‘deprivation of the property of a person’ must equally be considered in the fact situation of a case. Deprivation connotes different concepts. Article 300-A gets attracted to an acquisition or  taking  possession  of  private  property,  by  necessary implication  for  public  purpose,  in  accordance  with  the  law made by Parliament or a State Legislature, a rule or a statutory

Page 67

67

order having force of law. It is inherent in every sovereign State by  exercising  its  power  of  eminent  domain  to  expropriate private  property  without  owner’s consent.  Prima  facie,  State would be the  judge to  decide whether  a  purpose is  a  public purpose.  But it  is  not  the sole judge. This will  be subject  to judicial  review and  it  is  the  duty  of  the  court  to  determine whether a particular purpose is a public purpose or not. Public interest has always been considered to be an essential ingredient of public purpose. But every public purpose does not fall under Article  300-A  nor  every  exercise  of  eminent  domain  an acquisition or taking possession under Article 300-A. Generally speaking preservation of public health or prevention of damage to life and property are considered to be public purposes. Yet deprivation of property for any such purpose would not amount to acquisition or possession taken under Article 300-A. It would be by exercise of the police power of the State. In other words, Article 300-A only limits the powers of the State that no person shall be deprived of his property save by authority of law. There has  to  be  no  deprivation  without  any  sanction  of  law. Deprivation  by  any  other  mode  is  not  acquisition  or  taking possession under Article 300-A. In other words, if there is no law, there is no deprivation. Acquisition of mines, minerals and quarries is deprivation under Article 300-A.” Rajendra Babu, J. (as the learned Chief Justice then was) in Sri

Krishnapur  Mutt v.  N.  Vijayendra  Shetty  (1992)  3  Kar  LJ  326 observed: (Kar LJ p. 329, para 8)

“8. The restrictions imposed in the planning law though in public interest should be strictly interpreted because they make an inroad into the  rights  of  a  private  person to  carry on his business by construction of a suitable building for the purpose and incidentally may affect his fundamental right if too widely interpreted.”

We have  applied  the  rule  of  strict  construction  and  found  the  action  is

permissible  under  the  provisions  of  section  305  as  the  Corporation  has

implemented the provisions of  development  plan,  it  is  bound to implement the

Page 68

68

development  plan  prepared  after  following  the  exhaustive  procedure  consistent

with the principles of natural justice, and is in the larger public interest.

62. Learned counsel has also referred to the decision of this Court in Chairman,

Indore Vikas Pradhikaran (supra)  wherein a  question arose with respect  to  the

declaration  made  under  section  50(2)  of  the  Act  on  the  ground  that  unless  a

development  plan  for  an  area  is  published  and  comes  into  operation,  a  draft

development  scheme cannot  be published by the Development  Authority  under

section 50(2) of the Act of 1973. This Court observed that the area in question with

respect  to  which  the  scheme  had  been  framed under  section  50  had  not  been

properly included in the area of operation of the development authority under the

Act  of  1973 as such the action taken by way of its  intention to frame a town

planning scheme or otherwise was wholly illegal, without jurisdiction and a nullity.

This Court also held that a draft development plan which has not attained finality

cannot be held to be determinative of the rights and obligations of the parties and

can  never  be  implemented and end  use  of  the  land is  not  frozen until  a  final

sanction plan comes into force. This Court also held that the power to freeze the

land use under section 50(1) read with section 53 of the Act of 1973 can only be

validly exercised for  implementing a final  sanctioned development plan.  In the

instant cases it is not in dispute that there is a final sanctioned development plan

for Bhopal as well as for Indore and pursuant thereto action has been taken under

Page 69

69

section  305.  In  Indore  the  town  development  scheme  exists  and  for  Bhopal,

absence  of  town development  scheme under  sections  49  and  50  has  not  been

pleaded  by the  appellants.  This  Court  in  Chairman,  Indore Vikas  Pradhikaran

(supra) has laid down thus :

“33. The Act envisages the following steps which are required to be complied with: (a) Constitution of a planning area by notification under Section 13. (b) Compliance with the detailed procedure set out under Sections 14 to 19, leading to sanction of the development plan under Section 19. The said procedure envisages compliance with principles of natural justice. (c)  Section  38  provides  for  establishment  of  a  town  and  country development  authority,  by  notification  “for  such  areas  as  may  be specified in the notification”. Under sub-section (2) thereof, duties of implementation of the development plan and preparation of the town development  scheme  have  been  cast  on  the  town  and  country development authority. (d) The town development scheme is to be prepared upon following the  procedure  set  out  under  Section  50.  The  said  scheme  can  be prepared  only  when  there  exists  a  development  plan,  prepared  in accordance with the procedure prescribed under the Act as envisaged under Sections 14 to 19 and after notification under Section 38(1). In this regard, reference may also be made to Section 2(u) of the Act, which  describes  a  town  development  scheme  to  mean  a  scheme prepared  for  implementation  of  the  provisions  of  the  development plan.

41. When a draft development plan is prepared, the same is subject to grant of approval and/or modification thereof. We will deal with the matter in some detail a little later but at this stage, we may notice that end use of the land is not frozen until a final sanction plan comes into being. A town planning scheme, as would appear from its definition contained in Section 2(4) of the Act, is prepared only for the purpose of implementation of a development plan. Yet again, we would deal with the question as to whether the same would bring within its sweep

Page 70

70

the  draft  development  plan  or  only  final  development  plan  a  little later, but it may be noticed that once a valid town planning scheme comes into force, indisputably, there may be freezing of land use as also  freezing  of  development  and,  thus,  a  total  embargo  is  placed except  in  such  cases  where  the  Director  had  granted  permission. Section 53 of the Act, however, in the event a valid town planning scheme is made, places a total embargo both on land use as also the development. Even the Director is denuded of its power to issue any further  permission.  Existing  land  use,  draft  development  plan  and final  development  plan  envisage  two-stage  exercise.  In  drafting  or finalising a zonal plan, a similar exercise is undertaken. In making a town  development  scheme,  however,  the  process  undertaken  is  a three-stage one inasmuch as an intention therefor is declared which entails serious consequences and, as noticed hereinbefore, by reason thereof,  a  total  embargo  is  imposed  both  on  land  use  as  also  the development. For the said purpose, a time-limit within which a draft town planning scheme has to be finalised is provided but the same can be subject  to modification by the State  which ordinarily should be with a view to deal with the same in line with the final development plan.

72. Land use, development plan and zonal plan provided for the plan at macro-level whereas the town planning scheme is at a micro-level and,  thus,  would  be  subject  to  development  plan.  It  is,  therefore, difficult  to comprehend that broad based macro-level planning may not at all be in place when a town planning scheme is prepared.

73. Once a final plan comes into force, steps inter alia are taken for acquisition of the property. Section 34 of the Act takes care of such a contingency.  The  town  development  scheme,  as  envisaged  under Section  49  of  the  Act,  specifically  does  it.  Out  of  nine  clauses contained in Section 49, six relate to acquisition of land for different purposes. Clauses (v), (viii) and (ix) only refer to undertaking of such buildings  or  construction  of  work  by  the  authority  itself, reconstructions  for  the  purpose  of  buildings,  roads,  drains,  sewage lines and the similar amenities and any other work of a nature such as would bring about environmental improvements.

Page 71

71

76. A bare perusal of Sections 17 and 49 would show that it is the development plan which determines the manner of usage of the land and the town development scheme enumerates the manner in which such proposed usage can be implemented. It would follow that until the  usage  is  determined  through  a  development  plan,  the  stage  of manner of implementation of such proposed usage cannot be brought about. It would also therefore follow that what is contemplated is the final development plan and not a draft development plan, since until the development plan is finalised it would have no statutory or legal force and the land use as existing prior thereto with the rights of usage of the land arising therefrom would continue.

78. The  essence  of  planning  in  the  Act  is  the  existence  of  a development plan. It is a development plan, which under Section 17 will  indicate  the  areas  and  zones,  the  users,  the  open  spaces,  the institutions  and  offices,  the  special  purposes,  etc.  Town  planning would be based on the contents of the development plan. It is only when  the  development  plan  is  in  existence,  can  a  town  planning scheme be framed. In fact, unless it is known as to what the contents of  a  possible  town  planning  scheme  would  be,  or  alternatively, whether  in  terms of  the development  plan such a  scheme at  all  is required, the intention to frame the scheme cannot be notified.”

This Court has emphasized that it is the development plan which determines

the manner of usage of the land at the micro level. This Court has also emphasized

that development plan to be implemented should be final development plan. The

very scheme of the Act postulates that in case development plan has been prepared,

may require for such development plan micro planning wherever it is necessary

and there may be certain areas where no micro planning is contemplated in view of

the specific provisions contained in the development plan such as width of the road

etc. which has been determined finally. Once the final development plan does not

require micro exercise and is in force, it is not open to the development authority to

Page 72

72

redo that exercise under section 49/50 while preparing the scheme at micro level as

it is not authorized to alter/modify  the said provision of the development plan as it

has no power to alter or modify the width of the road or building line as fixed in

the development plan and is bound to carry out the same. For such matters which

do not require micro-planning, it would not be necessary to undertake exercise of

section 49 read with section 50, publish a draft plan, under section 50(3) invite

objections and suggestions and to decide the same issue of development plan once

over again which is final, conclusive and binding and requires no further  planning.

If any modification of development plan is permitted, it would defeat the mandate

of sections 19(5) and  25 of the Act of 1973, and in case the authorities cannot alter

the width of the road or modify development plan, it would be a futile exercise and

exercise in futility is not envisaged by law. The decision of this Court in  Indore

Vikas  Pradhikaran (supra)  reinforces  and  buttresses  our  conclusion that  it  is  a

development plan which has to prevail.

63. The appellants have also placed reliance on  Rajendra Shankar Shukla &

Ors. v. State of Chhattisgarh  & Ors. (2015) 10 SCC 400 to contend that the Act of

1973  provides  for  arrangement,  the  development  plan  is  an  umbrella  which

encompasses  within its  fold a  zonal  plan  which is  implemented through Town

Development Scheme. This Court has laid down thus :

“65. As per the factual averments of this case, Respondent 2 RDA,  without  any  resolution  of  the  Board,  on  its  own  motion,

Page 73

73

addressed  a  Letter  dated  31-7-2006  and  approached  the  State Government  for  change of  land use  because  it  had to  propose  the township in Tikrapara, Devpuri and Boriakhurd Villages. Thereafter, KVTDS was also proposed, published, finalised and approved before the  land  use  was  changed  by  the  State  Government.  Under  the provisions of the 1973 Act, the development plan/Raipur Master Plan (Revised) 2021 that is prevailing, Respondent 2 RDA as well as the State Government gave primacy to KVTDS and sought changes in the master plan to suit KVTDS. This is impermissible in law. The finding recorded by the High Court of Chhattisgarh, Bilaspur, in its judgment in this regard that no finality can be attached to the master plan is an erroneous finding. Accordingly, we are of the opinion that the town development scheme which is KVTDS in the present case, was not prepared in accordance with Section 50 of the 1973 Act and we hold that KVTDS is ultra vires the 1973 Act.

         Answer to Point (iii) 66. Though  we  have  answered  Point  (ii)  in  favour  of  the

appellant,  we  intend  to  mention  other  grounds  too,  which  render KVTDS  as  illegal.  The  learned  Senior  Counsel  on  behalf  of  the appellants  contended  that  in  the  absence  of  a  zonal  plan,  a  town development scheme cannot be framed by Respondent 2 RDA, and therefore,  the acquisition proceedings of  the land of  the appellants cannot be allowed to sustain.

67. The town development scheme is always subservient to the master plan as well as the zonal plan, as provided under Section 17 of the 1973 Act, which reads as under:

“17. Contents  of  development  plan.—A  development plan  shall  take  into  account  any  draft  five  year  and  annual development  plan  of  the  district  prepared under  the  Madhya Pradesh Zila Yojana Samiti Adhiniyam, 1995 (19 of 1995) in which the planning area is situated….” 68. Master plan falls within the category of broad development

plans  and  is  prepared  only  after  taking  into  account  the  Annual Development Reports prepared by constitutionally elected bodies of local panchayats and municipalities, etc. A zonal plan is mandated to be  prepared  only  after  the  publication  of  the  development  plan. Section 20 of the Act reads thus:

“20. Preparation  of  zonal  plans.—The  local  authority may on its own motion at any time after the publication of the

Page 74

74

development  plan,  or  thereafter  if  so  required  by  the  State Government  shall,  within  the  next  six  months  of  such requisition, prepare a zoning plan.”

Further, Section 21 of the Act reads thus: “21. Contents  of  zoning plan.—The zoning plan  shall

enlarge  the  details  of  the  land  use  as  indicated  in  the development plan….”

(emphasis supplied) Thus, it is evident from the language of Sections 20 and 21 of the Act, that  a  zonal  plan  can  be  prepared  only  in  adherence  to  the development plan which in the present case is the Raipur Master Plan of 2021.

69. Next,  Section  49  of  the  Act  which  provides  for  the provisions for which a town development scheme can be prepared, has  to  be  read  along  with  Section  21  of  the  Act,  which  clearly mentions  that  the  land  required  for  acquisition  by  the  Town  and Country Development Authority for the purpose of any development scheme has to be laid down in the zonal plan.

70. Therefore,  a combined reading of Sections 17, 21 and 49 lays down that the development plan is the umbrella under which a zonal plan is made for the city. The zonal plan in turn allocates the land which could be acquired for town development schemes.

74. In  the  case  in  hand,  KVTDS  has  been  prepared  in  the absence of a zonal plan. It is not possible to define the utilisation of land  under  the  town  development  scheme  unless  the  zonal  plan formulated  by  the  local  authority  describes  with  sufficient particularity the details for which the broadly indicated use of land in the development plan may be put. Respondent 2 RDA is not permitted to either usurp or bypass the power vested with the local authorities for preparing town development scheme in the absence of zoning plan merely  on  the  ground  that  the  local  authority  did  not  exercise  its constitutional  power  in  preparing  the  zonal  plan  following  the direction of Respondent 1 State Government under Section 20 of the 1973 Act. A mere glance at the master plan would clearly go to show that it does not set out the detailed land use with sufficient particulars. Therefore, the framing of a zonal plan by local authority in laying out a detailed plan of land use with sufficient particulars is a sine qua non under the provisions of the Act.

Page 75

75

75. The legal contention urged on behalf of the respondents that a  town  development  scheme  can  be  framed  pursuant  to  the development plan without there being a zonal plan, is not sustainable. The learned Senior Counsel, Ms Pinky Anand and Mr Prashant Desai on behalf of the respondents relied upon the Act pari materia for the State of Gujarat where the Town Planning Act does not contemplate a zonal plan, and which contemplates “DP-TP”.       

There is no dispute with the law laid down by this Court and town planning

scheme has to be subservient to development plan/zonal plan. Development plan

which does not require micro planning is binding and can be implemented.   

In re : Vires of sections 305 and 306 of the Act of 1956 :

64. It was submitted that exercising the power for acquiring land by following

the  procedure  under  sections  305  and  306  suffers  from arbitrariness  and  thus

violative of  Articles 14 and 19 of  the Constitution of  India.  Reliance has been

placed on the decision in Suraj Mall Mohta & Co. v. A.V. Visvanatha Sastri & Anr.

AIR 1954 SC 545. In the said case the provision of section 5(4) of the Taxation on

Income (Investigation Commission) Act, 1947 was struck down on the ground of

being violative of Article 14. Submission advanced was that it gave arbitrary power

to the Commission to pick and choose and the clause was highly discriminatory in

character inasmuch as any evasion whether substantial or insignificant came within

its ambit as well as within the purview of section 34 of the Indian Income Tax Act.

This Court has observed that it is open to the State to make the classification to

determine who should be regarded as a class for the purpose of legislation and in

Page 76

76

relation  to  a  law  enacted  on  a  particular  subject  but  the  classification  to  be

permissible must be based on some real and substantial distinction bearing a just

and reasonable relation to the objects sought to be attained and it cannot be made

arbitrarily  and  without  any  substantial  basis.  In  our  opinion,  the  provision  of

section 305 when it deals with the public streets and removal of building falling in

regular  line  is  a  wholesome  one  and  being  a  special  provision,  based  on

classification made for the purpose of section 305 as to public street cannot be said

to  be  suffering  from  vice  or  discrimination  and  violative  of  Article  14.  The

procedure under section 305 of the Act of 1956 cannot be said to be onerous or

harsh and it cannot be tested on the anvil of provisions of section 78/78 of the Act

of 1956 or section 56 of the Act of  1973.  

65. Reliance has also been placed on the decision in Nagpur Improvement Trust

& Anr. v. Vithal Rao & Ors. (1973) 1 SCC 500. To contend on the strength of the

averment  made  in  amendment  application  filed  before  the  High Court  in  W.P.

No.5682/2016 that another agency is acquiring the land within 1 km. periphery of

the site of the BRTS corridor by following the procedure under the provisions of

the Act  of  2013.  Thus the appellants  are  being discriminated.  Para 5.22 of  the

amendment application, Annexure P-17 of SLP [C] Nos.14493-96/2016, has been

relied on by the learned counsel. What has been stated is extracted hereunder from

the aforesaid pleadings :

Page 77

77

“5.22 That  from the above,  therefore the public  notice dated 22.04.2016 (received on 24.04.2016) by the petitioners is also bad in law and deserves to be quashed by this  Hon’ble Court. It is further stated on affidavit that within a 1 kilometer periphery  of  the  lands  of  the  petitioner,  the  Capital  Project Administration (CPA) is constructing a coordination link road from the area  Bawariakala, E-8 extension to Hoshangabad Road, which area is also falling within the municipal limits of Bhopal Municipal Corporation. There the land owners would be entitled to compensation as per the new regime under the newly enacted Right To Fair Compensation And Land Acquisition Act 2013. However in the case of the petitioners, they would be grossly prejudiced,  as there is no indication as to how much compensation they would receive u/s  305,  306 of  the Act  of 1956.  Therefore  the  regime  of  Act  of  1956  is  completely discriminatory in nature.”

   From the aforesaid pleadings it cannot be made out that the other area where

acquisition is made, is a case of public street under sections 305 and 306, it relates

to construction of link road by the Capital Project Administration where acquisition

will be required. It is not pleaded in the aforesaid paragraph that the other area is

falling in the regular line of public street as per development plan, in the absence

of such pleadings, it is not open to the appellant to raise the plea of discrimination

at all. Even otherwise we have found provisions of section 305/306 to be fair, just

and reasonable and merely because for other places some other procedure has been

resorted  to,  cannot  be  a  ground  to  urge  discrimination.  Hence,  the  submission

based upon the dictum of this Court in Nagpur Improvement Trust (supra) has no

legs to stand.

Page 78

78

66. Reliance has also been placed on the decision in  P. Vajravelu Mudaliar v.

The  Special  Deputy  Collector, West  Madras AIR  1965  SC  1017.  In  the  said

decision this Court came to the conclusion that on a comparative study of Land

Acquisition Act, 1894 and Land Acquisition (Madras Amendment) Act, it was clear

that if it becomes clear that if a land is acquired for a housing scheme under the

Amending Act, the claimant gets a lesser value than he would get for the same land

or  a  similar  land if  it  is  acquired  for  a  public  purpose  like  hospital  under  the

Principal Act. The classification thus sought to be made by the Land Acquisition

(Madras  Amendment)  Act  between persons whose  lands  are  acquired  for  other

public purposes has no reasonable relation to the object sought to be achieved.

Thus this Court has held that under the Amending Act, discrimination cannot be

sustained on the principle of reasonable classification. The ratio has no application

to the instant cases as the classification is found to be quite appropriate. Apart from

that  after  the  abolition  of  ‘the  right  to  property’  as  a  fundamental  right,  the

provisions are quite consistent with section 300A and reasonable compensation is

paid under sections 305 and 306 which if not acceptable, the remedy of arbitration

and  approaching  the  District  Court  under  section  387  is  available  to  seek  the

compensation which has to be on the basis of procedure prescribed in the Land

Acquisition Act. No such impermissible classification is made in the instant case as

made by the Madras Amendment Act which was struck down by this Court.

Page 79

79

67. It was further submitted that sections 305 and 306 of the Act of 1956 fail to

provide  any  rational,  reasonable,  relevant  principle  for  determination  of

compensation for deprivation of property of the landowner and therefore violative

of Articles 14, 19, 21 and 300-A of the Constitution of India and they are liable to

be struck down. Reliance has been placed on a Constitution Bench decision of this

Court in  K.T. Plantation Pvt. Ltd. & Anr. v. State of Karnataka (2011) 9 SCC 1.

This Court has considered the various questions and interpreted the provisions of

Articles 300-A, 14, 19, 21, 30(1-A) and other provisions and laid down the judicial

scope of interference of a statute depriving a person of his property. It has been laid

down  that  though  right  to  compensation  is  inbuilt  in  Article  300A  of  the

Constitution of India, the obligation to pay compensation would depend upon the

terms  of  the  statute  and  the  legislative  policy.  Statute  providing  for  no

compensation, nil compensation or illusory compensation must be just,  fair and

reasonable  in  terms  of  Articles  14,  19(1)(g),  21,  26(b),  30(1-A)  and  other

provisions of the Constitution. This Court also considered distinction between no

compensation and nil compensation and pointed out onus to establish validity of

law in such cases lies on the State. Court cannot however based merely on its own

opinion, strike down such a law or statutory provision. It was further held that the

right to compensation cannot be read into Schedule VII List III, Entry 42 which is

not ambiguous at all. The statutes depriving a person of his property are subject to

Page 80

80

judicial review by constitutional courts on the grounds laid down by this Court. It

was held that the concerned Karnataka State Act having received the Presidential

assent under Article 31-A was immune from challenge under Articles 14 and 19.

This  Court  also  laid  down that  when the  validity  of  acquisition  of  property is

questioned, grounds for challenge to a statute enacted to acquire property but the

statute is not protected by Articles 31-A, 31-B and 31-C of the Constitution of

India,  after  deletion  of  Article  19(1)(f),  such  statutes  can  be  challenged  for

violation of Article 14, violation of basic structure of Constitution, violation of

Rule of Law which amounts to violation of basic structure or for lack of legislative

competence. This Court has also laid down that when validity of acquisition of

property is under a statute which is guarded by protective umbrella of Articles

31A, 31B and 31C, such statutes can still be challenged under Article 32 or 226 for

violation of rule of law if the violation is of serious nature which undermines basic

structure of the Constitution, violation of the basic structure of the Constitution or

for lack of legislative  competence. In I.R. Coelho (Dead) by LRs. V. State of T.N.

(2007) 2 SCC 1, this Court laid down that statutes protected by Articles 31A, 31B

and 31C would be as part of basic structure though not Article 14 or Article 19

simpliciter.  In  K.T. Plantation  (P)  Ltd.  (supra),  this  Court  has  considered  the

question thus :

“189. Requirement  of  public  purpose,  for  deprivation  of  a person of his property under Article 300-A, is a precondition, but no

Page 81

81

compensation or nil compensation or its illusiveness has to be justified by the State on judicially justiciable standards. Measures designed to achieve greater social justice, may call for lesser compensation and such  a  limitation  by  itself  will  not  make  legislation  invalid  or unconstitutional  or  confiscatory. In  other  words,  the  right  to  claim compensation or the obligation to pay, though not expressly included in Article 300-A, it can be inferred in that article and it is for the State to justify its stand on justifiable grounds which may depend upon the legislative policy, object and purpose of the statute and host of other factors.

190. Article 300-A would be equally violated if the provisions of law authorising deprivation of  property have not been complied with.  While  enacting  Article  300-A Parliament  has  only  borrowed Article  31(1)  (the  “Rule  of  Law”  doctrine)  and  not  Article  31(2) (which had embodied the doctrine of eminent domain). Article 300-A enables the State to put restrictions on the right to property by  law. That law has to be reasonable. It must comply with other provisions of the Constitution. The limitation or restriction should not be arbitrary or excessive or what is beyond what is required in public interest. The limitation or restriction must not be disproportionate to the situation or excessive.

191. The legislation providing for deprivation of property under Article 300-A must be “just,  fair  and reasonable” as  understood in terms of  Articles  14,  19(1)(g),  26(b),  301,  etc.  Thus  in  each case, courts  will  have  to  examine  the  scheme  of  the  impugned  Act,  its object,  purpose  as  also  the  question  whether  payment  of  nil compensation or  nominal  compensation  would make the  impugned law unjust, unfair or unreasonable in terms of other provisions of the Constitution as indicated above.

193. Right  to  property  no  more  remains  an  overarching guarantee in our Constitution, then is it the law, that such a legislation enacted under the authority of  law as provided in Article 300-A is immune from challenge before a constitutional court for violation of Articles 14, 21 or the overarching principle of the rule of law, a basic feature  of  our  Constitution,  especially  when  such  a  right  is  not specifically incorporated in Article 300-A, unlike Article 30(1-A) and the second proviso to Article 31-A(1).

194*. Article 31-A was inserted by the First Amendment Act, 1951 to protect the zamindari abolition laws and also the other types

Page 82

82

of  social,  welfare  and  regulatory  legislations  affecting  private property.  The  right  to  challenge  laws  enacted  in  respect  of subject-matter  enumerated  under  Article  31-A(1)(a)  to  (g)  on  the ground of violation of Article 14 was also constitutionally excluded.

198. Article 300-A, unlike Articles 31-A(1) and 31-C, has not made the legislation depriving a person of his property immune from challenge on the ground of violation of Article 14 or Article 21 of the Constitution of India, but let us first examine whether Article 21 as such is available to challenge a statute providing for no or illusory compensation and, hence, expropriatory.

200. The  question  of  applicability  of  Article  21  to  the  laws protected under Article 31-C also came up for consideration before this Court in  State of Maharashtra v.  Basantibai Mohanlal Khetan (1986) 2 SCC 516, wherein this Court held that Article 21 essentially deals with personal liberty and has little to do with the right to own property as such. Of course, the Court in that case was not concerned with the question whether the deprivation of property would lead to deprivation of life or liberty or livelihood, but was dealing with a case, where land was acquired for improving living conditions of a large number of  people.  The Court  held that  the land ceiling laws,  laws providing  for  acquisition  of  land  for  providing  housing accommodation, laws imposing ceiling on urban property, etc. cannot be struck down by invoking Article 21 of the Constitution.”

It is apparent from the aforesaid dictum that Article 300A enables the State

to put  restrictions on the right  by law but the same should not  be arbitrary or

excessive  or  beyond  what  is  required  in  public  interest.  The  imposition  of

restriction  must  not  be  disproportionate  to  a  situation  or  statute.  Legislation

providing for deprivation of property under Article 300A must be just,  fair and

reasonable. Thus, it cannot be said that illusory compensation is provided under

section 306 read with section 387. The decision renders  no help to  the cause

Page 83

83

espoused on behalf of the appellants and on a closer scrutiny, rather counters it.

Based on the aforesaid principles we find no malady in the provisions in question

which may be required to be cured.

68. Reliance has also been placed on the decision of this Court in Rajiv Sarin &

Anr. v. State of Uttarakhand & Ors. (2011) 8 SCC 708 in which this Court has laid

down that adequacy of compensation cannot be questioned before a court of law

but at the same time compensation cannot be illusory and that there cannot be a

situation of  no compensation to a  person who is  deprived of  his property. The

Court held that awarding no compensation attracts the vice of illegal deprivation of

property.  This  Court  has  laid  down  that  when  the  State  exercises  power  of

acquisition of private property it can take possession of the private property for

public purpose. It does not require payment of market value or indemnification to

the  owner  of  the  property  expropriated.  Payment  of  market  value  in  lieu  of

acquired property is not  a condition precedent or  sine qua non for  acquisition.

Adequacy of compensation cannot be questioned in a court of law but at the same

time compensation cannot be illusory. In  Rajiv Sarin (supra), this Court has laid

down thus :

“78. When the State  exercises the power  of  acquisition of  a private property thereby depriving the private person of the property, provision is generally made in the statute to pay compensation to be fixed or determined according to the criteria laid down in the statute itself.  It  must  be understood in this  context  that  the acquisition of property by the State in furtherance of the directive principles of State

Page 84

84

policy  is  to  distribute  the  material  resources  of  the  community including acquisition  and taking possession of  private  property  for public  purpose.  It  does  not  require  payment  of  market  value  or indemnification to the owner of the property expropriated. Payment of market value in lieu of acquired property is not a condition precedent or sine qua non for acquisition. It must be clearly understood that the acquisition and payment of amount are part of the same scheme and they cannot be separated. It is true that the adequacy of compensation cannot  be  questioned  in  a  court  of  law, but  at  the  same  time  the compensation cannot be illusory.

82. A distinction and difference has been drawn between the concept of “no compensation” and the concept of “nil compensation”. As  mandated  by  Article  300-A,  a  person  can  be  deprived  of  his property but in a just, fair and reasonable manner. In an appropriate case the court may find “nil compensation” also justified and fair if it is found that the State has undertaken to take over the liability and also  has  assured to  compensate  in  a  just  and fair  manner. But  the situation would be totally different if it is a case of “no compensation” at all.”

Instant is not a case of no compensation. It cannot be said to be a case of

illusory compensation. In distinction to these terms the phrase used in sections 305

and  306  is  ‘reasonable  compensation’.  This  Court  has  laid  down  in  Rajendra

Shankar Shukla (supra) itself that the Land Acquisition Act envisages payment of

just and reasonable compensation and qualifies the test of Article 300A.

69. Reliance has also been placed on Rustom Cavasjee Cooper v. Union of India

(1970) 1 SCC 248 to contend that the law must specifically either fix the amount of

compensation payable or must lay down the principle/s regarding the same. The

Legislature cannot be treated as conclusive and its objective can always be tested

Page 85

85

on such principle. The principal must award to the owner the equivalent of the

property he is deprived for with its existing advantages and potentialities, including

its benefit in the present as well as in future.  The money value on the date of

expropriation of  property must  be considered while  judging the validity  of  the

concerned enactment. The relevant provisions contained in sections 305, 306 and

387 of the Act of 1956 cannot be said to be violative of the aforesaid principles laid

down by this Court in the said decision as the amount of compensation payable has

been specified and the principles regarding the same have been fairly culled out.  

70. The provisions  of  the  Act  of  1956 cannot  be said to  be  violative of  the

principles  or  dictum laid  down by this  Court  in  the  aforesaid  decisions  rather

qualify to  them and cannot  be said to  be violative of  Articles  14 and 19.  The

provisions of sections 305 and 306 cannot be read in isolation. It has to be read

with wholesome provision of section 387 and what is contemplated under section

387 has to be taken to be the principle of reasonable compensation even in sections

305 and 306. Monetary value has to be worked out and it can be balanced with

FAR  in  appropriate  cases  which  is  quite  reasonable  method  of  arriving  at

compensation as discussed hereafter.  

71. It  was submitted by the respondents  that  with respect  to the principle of

determination of compensation, a Constitution Bench of this Court has considered

more or less similar provision contained in sections 212 and 216 of the Bombay

Page 86

86

Provincial  Municipal  Corporation Act,  1949.  It  was  found to have qualified to

section 299 of the Government of India Act in Municipal Corporation of the City

of Ahmedabad & Ors. v. State of Gujarat & Ors. (1972) 1 SCC 802. The question

of payment of compensation for acquiring the land lying within line of public street

came  up  for  consideration.  A question  arose  whether  Corporation  is  liable  to

provide compensation. First proviso to section 216(1) which provided for increase

or  decrease  in  value  in  the  case  of  set-back  and  adjustment  of  compensation

accordingly. Question also came up for consideration whether principle of willing

seller and willing buyer is applicable in such a situation, and what is the meaning

of full indemnity in accordance with the norms, and to what extent such provisions

are  justiciable  ?  Section  210 of  the  said  Act  contains  a  similar  provision with

respect to removal of project in the regular line of a public street.  For the loss

caused to the owner provision was made for compensation under section 216 of the

Bombay Provincial Municipal Corporation Act, 1949, same is extracted hereunder:

“7. For the loss thus caused to the owner by the action of the Commissioner,  provision  was  made  for  payment  of compensation under Section 216 which is as follows:

“216.(1) Compensation shall be paid by the Commissioner to the owner of any building or land required for a public street under Sections 211, 212, 213 or 214 for any loss which such owner may sustain in consequence of his building or land being so  acquired  and for  any expense  incurred  by such owner  in consequence of the order made by the Commissioner:

Provided that —

Page 87

87

(i) any increase or decrease in the value of the remainder of the property of which the building or land so acquired formed part likely to accrue from the set-back to the regular line of the street  shall  be  taken  into  consideration  and  allowed  for  in determining the amount of such compensation;

(ii) if any such increase in value exceeds the amount of loss sustained  or  expenses  incurred  by  the  said  owner,  the Commissioner may recover from such owner half the amount of such excess as a betterment charge.”

Other provisions of sections 389, 390 and 391 of the Bombay Provincial

Municipal  Corporation  Act,  1949  also  came  up  for  consideration  which  are

contained in para 8 of the report,  same are extracted hereunder :

“8. Chapter XXIV of the Act deals with the subject of compensation generally. Section 389(1) provides as follows:

“389. (1) In the exercise of the powers under the following provisions  of  this  Act  by  the  Commissioner  or  any  other municipal officer or servant or any other person authorised by or under this Act to execute any work, as little damage as can be  shall  be  done  and  compensation  assessed  in  the  manner prescribed by or under this Act shall be paid to any person who sustains damage in consequence of the exercise of such powers, namely,.…

(f) acquiring any building or land required for a public street — under Section 216.”

Section 390 is as follows: “Subject to the provisions of this Act, the Commissioner or

such other officer as may be authorised by him in this behalf shall, after holding such inquiry as he thinks fit, determine the amount of compensation to be paid under Section 389.” This determination, however, is not final because two appeals are provided. Under Section 391 it is provided as under:

“Any person aggrieved by the decision of the Commissioner or other officer under Section 390 may within a period of one month, appeal to the Judge in accordance with the provisions of Chapter XXVI.”

Page 88

88

“The Judge” means under Section 2, clause (29) the Judge of the Court of Small Causes in the City of Ahmedabad. Section 411 provides for a second appeal to the District Court. It says “An appeal shall lie to the District Court (aa) from a decision of the Judge in an appeal under Section 391 against an assessment of compensation under clause (f) of sub-section (1) of Section 389”.  As regards  the  procedure to  be  followed in respect  of these appeals, provision is made in Section 434 sub-section (1) whereof  is  “Save  as  expressly  provided  by  this  Chapter (Chapter XXVI) the provisions of the Code of Civil Procedure, 1908, relating to appeals from original decrees shall  apply to appeals to the Judge from the orders of the Commissioner and relating to appeals from appellate decrees shall apply to appeals to the District Court”.

This Court on due consideration of the aforesaid provisions has held that the

Commissioner  is  required to  determine the compensation  first,  thereafter  if  the

owner is satisfied he can approach the Court of Small Causes or the District Judge.

The  provisions  of  section  212  were  questioned  on  the  ground  that  they  were

violative of section 299 of the Government of India Act, 1935. This Court has laid

down that sections 216 and 389 provide for indemnification for the loss caused to

be made to the owner of the property or other interests affected by the exercise of

power under section 212. This Court has laid down thus :

“13. We are in agreement with the view of the High Court that the Corporations Act does provide for the payment of compensation for the property acquired. We have only to refer to Section 216 and Section 389 of the Act for this purpose. Section 216(1) clearly lays down that  compensation shall  be paid by the Commissioner to the owner of any building or land required for public street under Sections 211, 212, 213 and 214 for any loss which such owner may sustain in consequence of his building or land being so acquired, and for any expense incurred by such owner in consequence of the order made by

Page 89

89

the Commissioner. Then Section 389(1) provides that compensation assessed in the manner prescribed by or under the Act shall be paid to any person who sustains damage in consequence of the exercise of such power, namely, “(f) acquiring any building or land required for a public street under Section 216”. The two sections read together make it clear that full indemnification in terms of money for the loss caused is to be made to the owner of the property or other interests affected by reason of the exercise of power under Section 212. Under the latter section what is acquired for the purposes of the street is the land of the owner  which  falls  within  the  regular  line  of  the  street.  Several provisions are made in Chapter XIV for the widening of streets within the limits of the Corporation. With the enormous increase in traffic in the more congested parts of a growing City, Municipal authorities are constantly under pressure to widen the streets and one of the several methods prescribed in Chapter XIV is contained in Section 212. The regular line of the street as prescribed under Section 210 often passes through  the  properties  of  owners  abutting  on  the  streets  and  it  is impossible to widen the streets unless parts of lands belonging to the owners are acquired. Sometimes a building or a structure or part of it stands on such land and unless that portion of the building which falls within the line is removed the acquisition of the land for the purpose of the street is not possible. Therefore, in the first instance the section requires that the Commissioner shall issue a show-cause notice why the building or a part of the building which falls within the line of street  should  not  be  pulled  down  with  a  view to  release  the  land underneath for the purposes of the street. If after hearing the owner the Commissioner is of the opinion that the building or part thereof should be pulled down, he must obtain the approval of the Standing Committee and then serve a notice on the owner to pull  down the offending building or  part  of  building within a  certain time.  If  the owner cooperates, he will himself remove the offending structure and release the land underneath it for being absorbed in the street. If he does not, the Commissioner is empowered to pull down the offending structure at the cost of the owner. Then sub-section (4) of Section 212 provides  that  the  Commissioner  shall  at  once  take  possession  on behalf of the Corporation of the portion of the land within the said line (line of the public street) theretofore occupied by the said building, and such land shall  thenceforward be deemed a part  of  the public street  and shall  vest  as  such in  the Corporation.  The provisions of Section 212, therefore, clearly declare that what is acquired under that

Page 90

90

section  is  the  land  lying  within  the  line  of  the  public  street.  The technical question as to whether there is acquisition of the building when the owner himself does not pull down the offending part of the structure but the Commissioner does it at the owner’s expense is not necessary for the disposal of the question whether the Act provides for the payment of compensation. Since every kind of loss is required to be  compensated  as  a  consequence  of  the  order  passed  by  the Commissioner under Section 216 of the Act, the question whether the Act need have provided for compensation as on the acquisition of the building or a part of the building which is pulled down under Section 212, does not survive. The owner has to be compensated for every deprivation or loss and, therefore, prima facie it must be held that the Corporations Act provides for the payment of compensation for the property acquired.

14. It was, however, argued that the two provisos to sub-section (1)  of  Section  216 when  given effect  to  may  not  only  nullify  the direction given in sub-section (1) for payment of compensation but also in certain contingencies compel the owner to pay the Corporation something out of his own pocket. When sub-section (1) provides for payment of compensation for the loss suffered it provides for adequate indemnification  or  compensation.  When  such  compensation  is reduced  in  the  contingencies  visualized  in  the  two  provisos  the compensation, it was submitted, may turn out to be illusory and the provision  for  the  payment  of  compensation  an  empty  assurance. Proviso (1) prescribes that “any increase or decrease in the value of the  remainder  of  the  property  of  which  the  building  or  land  so acquired formed part likely to accrue from the set-back to the regular line of the street shall be taken into consideration and allowed for in determining the amount of such compensation”. Proviso (ii) states that “if any such increase in the value exceeds the amount of loss sustained or  expenses  incurred  by  the  said  owner,  the  Commissioner  may recover  from  such  owner  half  the  amount  of  such  excess  as  a betterment charge”. Proviso (i) implies that the compensation payable under sub-section (1)  is  liable to be increased or  reduced after  the set-back. It envisages that by reason of the set-back or the widening of the street the property which still remained with the owner is likely, on  account  of  the  new situation,  either  to  increase  or  decrease  in value. If that happens, that is to be taken into consideration and the amount  determined  under  sub-section  (1)  will  have  to  be  adjusted

Page 91

91

accordingly.  The  High  Court  is  of  the  view  that  proviso  (1)  is unobjectionable  as  it  is  a  principle  governing the  determination  of compensation  and  can  be  rightly  employed  in  determining  the compensation for  the property acquired.  The High Court,  however, was not inclined to hold that proviso (ii) lays down any principle for determination of compensation payable for the property acquired. It held, nevertheless, that the proviso was severable from the main part of the section and did not affect the provisions of sub-section (1) for payment of  compensation.  It  is  obvious that  it  is  only in very rare contingencies  that  proviso  (ii)  may  become  operative.  But  in considering  the  question  as  to  whether  the  Act  provides  for compensation for acquisition or not, there can be little doubt that it does so in sub-section (1) of Section 216. That it may in some rare contingencies  be  very  much  reduced  after  taking  into  account  the value of the benefit conferred on the owner by reason of the widening of  the  street  is  no  adequate  reason  to  hold  that  the  Act  does  not provide for payment of compensation. As a matter of fact in an actual enquiry for determining the amount of compensation to be paid the authority  charged  with  the  duty  will  have  to  assess,  in  the  first instance, the value of the total loss or deprivation actually suffered. The provisos may in some rare contingencies go to reduce the amount so determined. Proviso (ii) envisages a situation where the widening of the street has so much benefited the owner that the value of the benefit even exceeds the actual loss suffered by him. In such a case instead of getting any compensation for the loss the owner might have to pay out of his own pocket. As to whether proviso (ii) prescribes any principle for determination of compensation or not is not relevant for our present purpose. Both the provisos come into play only after the compensation for loss is determined under sub-section (1) of Section 216 and since that sub-section declares that full compensation must be paid  for  the  loss  or  deprivation  suffered  by  the  owner  it  will  be incorrect to say that the Act does not make provision for the payment of  compensation  for  the  property  acquired.  We have,  therefore,  no hesitation in agreeing with the High Court that the Corporations Act provides for the payment of compensation for the property acquired under Section 212.

15. The next question is whether the Act specifies the principles on which and the manner in which compensation is to be determined. The  High  Court  has  been  of  the  view  that  neither  principles  for

Page 92

92

determination of  compensation nor the manner of  its  determination has been specified and that is the ground on which it has held that the provisions of Section 212 are unconstitutional. We are unable to agree with  that  view.  What  is  meant  by  specification  of  principles  for determining  compensation?  In  State  of  Gujarat v.  Shri  Shantilal Mangaldas and Ors.  (1969) 1 SCC 509, this Court observed:

“Specification of principles means laying down general guiding rules applicable to all persons or transactions governed thereby.  Under  the  Land  Acquisition  Act  compensation  is determined on the basis of ‘market-value’ of the land on the date of the notification under Section 4(1) of that Act. That is a specification of principle.”

         At a later stage the Court again observed at p. 362: “Rules  enunciated  by  the  courts  for  determining

compensation  for  compulsory  acquisition  under  the  Land Acquisition  Act  vary  according  to  the  nature  of  the  land acquired. For properties which are not marketable commodities, such as lands, buildings and incorporeal rights, valuation has to be  made  on  the  application  of  different  rules.  Principle  of capitalisation  of  not  rent  at  the  current  market  rate  on guilt-edged securities,  principle  of  reinstatement,  principle  of determination of original value less depreciation, determination of  break-up  value  in  certain  types  of  property  which  have out-grown their utility, and a host of other so-called principles are  employed for  determination of  compensation  payable for acquisition of lands, houses, incorporeal rights, etc.”

The Land Acquisition Act makes market-value at a certain date the basis for the determination of compensation. But there is no one sure way of applying the principle.  As is  well  known when set-back is imposed by the line of the street, the land actually acquired by the Corporation may be in some cases a few square yards or even a few square inches. Then again the land acquired may be of no significant use to anybody except to the Corporation as a part of the street. The land acquired may be wedge-shaped, sometimes irregular in contour and often shapeless. If the principle of a willing seller and a willing buyer is applied there can possibly be no market at all for the property acquired. It is not suggested that in every case of acquisition of land for the street this principle will break down. But having regard to the fact that in the course of widening the street the Corporation may have

Page 93

93

to acquire very irregular, shapeless and small pieces of land for the purposes of the street, a host of principles may have to be employed to determine  the  compensation.  We  asked  learned  counsel  for  the respondents  what  one  general  principle  of  determination  of compensation in such cases could have been appropriately specified. We did not get any satisfactory reply. It appears to us that this very difficulty in specifying any known rule of compensation is responsible for the wording of Section 216 and Section 389 of the Act which, in our opinion, gets over the difficulty by providing full indemnification for the loss or deprivation suffered by the owner of the building or other interests in the property. We have referred to the provisions with regard  to  appeals.  The  first  appeal  lies  to  the  Judge  of  the  Small Causes  Courts  and  a  second  appeal  to  the  District  Judge.  The involvement  of  civil  courts  in  finally  determining  compensation imports  judicial  norms.  Since  full  indemnification  in  accordance with .judicial norms is the goal set by the Act it is implicit in such a provision that the rules for determination of compensation shall  be appropriate to the property acquired and such as will achieve the goal of full  indemnity against loss. In other words, the Act provides for compensation to be determined in accordance with judicial principles by the employment of appropriate methods of valuation so that the person who is deprived of property is fully indemnified against the loss. This, by itself, in our opinion, is a specification of a principle for the determination of compensation.

16. As regards the manner of determination of compensation, it is provided in Section 390 of the Corporations Act. Under that section the Commissioner or such other officer as may be authorised by him shall hold such enquiry as he thinks fit and determine the amount of compensation  to  be  paid.  Either  the  Commissioner  or  an  Officer authorised  by  him  has  to  hold  an  appropriate  enquiry  before determining the amount of compensation. Since, as already seen, there is an appeal from such determination to the Judge of the Small Causes Court under Section 391 and a second appeal to the District  Court under Section 411 it is clear that the enquiry must be made on broad judicial lines. Any arbitrary determination is bound to be set aside in appeal because the Judges in appeal will be chiefly concerned to see whether  the  enquiry  is  made  in  accordance  with  normal  judicial procedures for evaluating the loss by the application of methods of valuation appropriate to the particular acquisition before them. Since no limitations are placed on the powers of the Appellate Judges in

Page 94

94

determining the loss in a just and appropriate manner, it is expected that the Commissioner or his authorised officer, who holds the enquiry in the first instance, will be guided by principles which meet with the approval  of the Appellate authorities.  In our opinion,  therefore,  the manner of the determination of compensation is also specified by the Act.

17. It  is  conceded before us that  if  this  Court  holds that  the Corporations Act has provided for the payment of compensation and also  specified  the  principle  on  which  and  the  manner  in  which compensation is to be determined, it would not be possible to say that the Act is either in violation of the provisions of Section 299 of the Government of India Act, 1935 or Article 31 of the Constitution.”

Thus with respect  to  the compensation,  considering more or  less  similar

provisions,  a  Constitution  Bench of  this  Court  has  clearly laid down that  as  a

matter of fact actual compensation has to be determined in the first instance, the

value of the total loss or deprivation actually suffered. It has to be balanced with

the  other  relevant  aspects  for  compensation.  The  Act  provides  for  payment  of

compensation. The view of the High Court that the principle for determination of

compensation has not been specified under section 212 was also not agreed to by

this Court. This Court has also held that the Land Acquisition Act makes market

value at a certain date the basis for determination of compensation. But there is no

one sure way of applying the principle. As is well known when set back is imposed

by the line of the street, the land actually acquired by the Corporation may be in

some cases a few square yards or even a few square inches. Then again the land

acquired may be of no significant use to anybody except for the Corporation as a

part of the street. The land acquired may be of different shapes, irregular in contour

Page 95

95

and often shapeless. If the principle of willing buyer and willing seller is applied

there can possibly be no market at all for the property acquired. This Court opined

that the owner gets full indemnification for the loss or deprivation suffered to the

building or other interests in the property. Involvement of  civil courts in finally

determining compensation imports judicial norms. There is no limitation on the

power of the appellate Judge. Thus this Court held that the provisions contained in

sections 212, 216 and 389 were not violative of the provisions of section 299 of the

Government of India Act, 1935 or Article 31 of the Constitution. The case was

remanded by this Court to the High Court for examining infringement of Articles

14 and 19 after laying down the aforesaid propositions. We have on merits found

no violation of Articles 14 and 19 also in the instant cases.

72. It  was  also  submitted  that  the  provisions  of  sections  305  and  306  are

required  to  be  read  down by  incorporating  the  requirement  of  computation  of

compensation in the light of the principles laid down under the Act of 2013 while

correlating it with the provisions of section 387 of the Act of 1956. In view of the

aforesaid dictum of this Court in  Municipal Corporation of City of Ahmedabad

(supra),  we  find  no  scope  to  entertain  the  submission  and  the  reliance  by  the

appellants on Yogendra Kumar Jaiswal v. State of Bihar & Ors. (2016) 3 SCC 183

is of no avail.

Page 96

96

73. We find the principles laid down in sections 305, 306 and 387 are quite

reasonable. Reasonable compensation is payable by the Corporation for building or

part thereof excluding the land under proviso to section 305(1) and compensation

for inclusion of land in public street is payable under section 306(3) of the Act. We

do not find any ground so as to read down the provisions. We refrain to comment

upon the submission with respect to the granting additional FAR is not acceptable

to some appellants, as it is not the stage of dealing with compensation how the total

indemnification is to be made, whether FAR is acceptable to the appellants or not,

cannot be decided at this stage. It need not be decided at this stage whether they

have a right to leave the FAR and claim monetary compensation alone which is to

be  adjudged  by  the  concerned  authorities  within  the  pale  of  the  provisions

contained in sections 305, 306 read with section 387 of the Act of 1956. How the

compensation is to be worked out at the appropriate stage, is the outcome of the

authorities concerned and the job of the arbitrator/District Court, as the case may

be. The appellants are at liberty to raise the question with respect to the adequacy

of compensation and how the provision of section 387 has to be interpreted and

what would be the just compensation at the appropriate stage of determination of

compensation.  

74. Reliance has been placed on Laxmi Devi v. State of Bihar & Ors. (supra) and

Rajendra Shankar Shukla & Ors. v. State of Chhattisgarh  & Ors. (supra). The

Page 97

97

decision in  Laxmi Devi (supra)  is  based on the specific  provision contained in

section 10A of the Land Acquisition Act which requires compensation to be paid in

a case where emergency clause has been invoked. Collector is required to tender

payment of 80% of compensation before taking possession of the land. The said

provision is not at all attracted to the Act of 1956. As compensation is offered after

vesting,  is  quite  reasonable  procedure  as  envisaged  by  Article  300A  of  the

Constitution of  India,  at  which point  of  time it  is  offered would not  make the

provision confiscatory or repugnant. The compensation under section 305 or 306

read with section 387 is on the happening of certain exigency, and various factors

are  taken into consideration for  determination of  compensation is  a  quite  valid

procedure.  The Corporation cannot  be  compelled as  per  the special  scheme of

sections 305, 306 and 387 to offer the compensation before removal and vesting.

Reliance  on  the  decision  in  K.N.  Palsikar (supra)  so  as  to  contend  that  the

possession should be taken after payment of compensation is totally misplaced.

This Court has simply narrated in para 11 what was held by the High Court and the

points which were decided were capsualised by this Court in para 12 of the report.

The aforesaid question was neither raised nor decided by this Court. This Court has

not laid down any such proposition in K.N. Palsikar (supra), as canvassed.

75. Reliance  has  also  been  placed  on  a  decision  of  this  Court  in  Bhusawal

Municipal Council v. Nivrutti Ramchandra Phalak & Ors. (2015) 14 SCC 327 in

Page 98

98

which this Court has considered right to property under Article 300-A and held that

such  right  is  a  human  right  and  delayed  payment  of  compensation  leads  to

alienation of section of society against the system, further public purpose that is

setting up of school, is no justification for delaying/denying compensation in the

garb of undertaking developmental projects, without paying the compensation to

the concerned landowner as per the statutory provisions. It was also submitted that

the time period was not prescribed within which compensation was to be paid. In

our opinion, the appellants have questioned the very notice, initiation of action and

when no time limit is fixed for payment of compensation, it goes without saying

that it has to be awarded within a ‘reasonable time’. Law envisages speedy action

without  unreasonable  delay  and  that  is  what  is  expected  of  the  concerned

authorities, in respect of the obligation imposed on them to be discharged. Due to

this,  the provision cannot be struck down as arbitrary nor it  can be said to be

confiscatory in nature. We expect that the concerned Corporations would do well

while offering the compensation to the appellants as expeditiously as possible that

is sufficient to take care of their unfounded fear.

76. In the case of Bhuwan Bhandari v. Indore Municipal Corporation (SLP (C)

No.31541/2011) it was submitted that building is a heritage building and there is

bar on any kind of construction. The boundary wall has been demolished by the

Corporation and possession has been taken of that part without compensation. The

Page 99

99

fact has been denied by the respondents that the building has been declared as

heritage  one.  It  was  also  pointed  out  that  the  Corporation  for  the  purpose  of

widening of the road required removal of part of the boundary wall which is quite

external to the main building and is falling within the set back. It is clear that the

main building is not being demolished. The submission is thus untenable.

77. In view of the aforesaid discussion, the appeals being devoid of merits are

hereby dismissed. Parties to bear their respective costs as incurred.

………………………..J. (Jagdish Singh Khehar)

New Delhi; ……………………..J. November 29, 2016. (Arun Mishra)