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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NOS. 5769-5770 OF 2015 (Arising Out of SLP (C) Nos.30942-30943 of 2014)

RAJENDRA SHANKAR SHUKLA & ORS.ETC.     …APPELLANTS Vs.

STATE OF CHHATTISGARH & ORS.ETC.       …RESPONDENTS     WITH

CIVIL APPEAL NOS. 5771-5775  OF 2015 (Arising Out of SLP (C) Nos.30049-30053 of 2014)

   J U D G M E N T

V. GOPALA GOWDA, J. Leave granted.

2. The appellants-land owners have filed the present

group  of  appeals  challenging  the  common  impugned

judgment  and  order   dated  16.6.2014  passed  by  the

Division  Bench  of  the  High  Court  of  Chhattisgarh  at

Bilaspur, in Writ Appeal Nos.379, 380, 381, 382, 389 and

393  of  2013  wherein  the  High  Court  upheld  the  order

dated 15.4.2013 passed by the learned single Judge of

the High Court of Chhattisgarh, Bilaspur, upholding the

validity of the Town Development Scheme, namely, ‘Kamal

REPORTABLE

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Vihar Township Development Scheme No. 4’ (for short ‘the

KVTDS’).

3. The facts of the case are stated hereunder:- The appellants herein are the landowners of portions

of land (with some construction thereon) situated in the

villages  Dumartarai,  Tikrapara,  Boriya  Khurd,  Deopuri

and Dunda of Raipur District in Chhattisgarh State. The

respondent No.2-Raipur Development Authority (RDA) was

established under Section 38(1) of the M.P. (C.G.) Nagar

Thatha Gram Nivesh Adhiniyam, 1973 (for short ‘the Act

of 1973’). The KVTDS was planned by the respondent No.2

-  RDA  while  discharging  its  functions  under  Section

38(2) of the Act of 1973. Though the KVTDS initially

started  as  a  small  Town  Development  Scheme,  it

subsequently  included  the  aforesaid  five  villages  in

Raipur within its Scheme.

4. As per the evidence on record produced before us,

which are the written communications between the State

Government, respondent No.2-RDA and the Director of Town

and Country Planning, the KVTDS was initially planned

and proposed for an area of 416.93 acres only. The Chief

Executive Officer of the respondent No.2-RDA had issued

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public notification declaring its intention of coming up

with  an  integrated  township  of  416.93  acres  only.

However,  a  month  after  the  publication  of  said

notification,  the  Board  of  respondent  No.2-RDA,

increased  the  area  of  the  integrated  Township  Scheme

from 416.93 acres to 2300 acres which resulted in the

inclusion of the lands of the appellants herein. At present, the said Scheme has a total project area

of 647.84 Hect., out of which the area available for

development is 610.46 Hect. While 482.29 Hect. of the

total land is private land, 128.17 Hect. is government

land. 5. According to the development plan, in the above area

of  647.84  Hect.,  further  areas  have  been  marked  for

recreational  land,  roads  and  lanes  and  other

miscellaneous infrastructure like educational, hygienic

and various public purpose amenities. The broad features

of the Scheme would show that there shall be 15 Sectors

and the estimated cost of development of infrastructure

would be Rs.1085 crores. The Government agreed to hand

over its land to the respondent No.2-RDA and the land

belonging to the private owners were to be taken over by

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the consent or by acquisition under Section 56 of the

Act of 1973.

6. The RDA planned to develop the land and hand over

about  35%  of  the  developed  plot  to  the  land  owners

without charging any contribution/incremental cost from

them  in  return  for  their  acquired  land  for  the

development of the KVTDS under Section 56 of the Act of

1973. The remaining area of their undeveloped plot would

be retained and subsequently, may go to the other land

owners  or  may  be  utilized  for  constructing  other

facilities  under  the  development  Scheme.  According  to

respondent  No.2-RDA,  15%  of  the  developed  plots  have

also  been  reserved  for  economically  weaker  sections

which come to about 32.15 Hect.

7. Out of the total 4969 private land owners, 39 land

owners did not agree to the Scheme/procedure adopted and

preferred  23  writ  petitions  on  various  grounds  which

were dismissed by the learned single Judge of the High

Court of Chhattisgarh, Bilaspur. Aggrieved by the same,

six  Writ  Appeals  were  filed  by  13  land  owners.  The

Division  Bench  of  the  High  Court  of  Chhattisgarh  at

Bilaspur, after considering the facts, circumstances and

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evidence on record of the cases, upheld the validity of

the KVTDS planned by the RDA and dismissed the appeals

on the ground that the same were devoid of merit. Hence,

the present appeals.   8. We have heard the learned senior counsel for both

the parties. On the basis of the factual circumstance

and evidence on record produced before us and also in

the light of the rival legal contentions raised by the

learned senior counsel for both the parties, we have

broadly framed the following points which require our

attention. The main legal issues which arise in this

case are :-

(1)   Whether the KVTDS provide the authority to

the Director of the respondent No.2-RDA, to

formulate Town Development Scheme and is it in

contravention to the 73rd and 74th Amendments

to the Constitution of India? (2)   Whether the Town Development Scheme in the

present  case  is  formulated  as  per  the

provision mentioned in Section 50(1) of the

Act of 1973? Whether the subsequent alteration

of land acquired, is in consonance with the

provisions of the Act?

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(3)   Whether the Town Development Scheme framed

in  the  present  case  by  the  respondent

No.2-RDA, in the absence of a zonal plan, is

legal and valid? (4)   Whether the Act of 1973 authorises the Town

Planning  and  Development  Authority  to

reconstitute the plots and change the land use

apart from public utility? (5)   Whether the proposal of the RDA to return

35% of the area of the land taken away from

the  land  owners/appellants  is  legally

permissible? (6)   While  planning  the  KVTDS,  whether  the

respondents  ensured  compliance  with  EIA

clearance  procedure  from  the  competent

authority?

Answer to Point No. 1 9. As per Part IX and Part IX-A of the Constitution, a

zonal plan has to be framed by democratic institutions

as prescribed under its provisions. On the other hand,

the  Respondent  No.  2-  RDA,  has  framed  the  Town

Development  Scheme  without  consulting  or  taking  into

account  the  views  of  the  Panchayat  and  the  District

Planning Committee which are constitutionally authorized

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to undertake the task of framing Scheme. It was argued

by  Mr.  Gopal  Subramaniam,  learned  senior  counsel  on

behalf of the appellants that the Respondent No. 2- RDA

had  assumed  the  role  of  town  planning  authority  by

proposing  and  framing  KVTDS  with  land  use  which  is

different from the one prescribed in the Raipur Master

Plan  (Revised)  2021.  In  fact,  the  proposal  made  by

Respondent No. 2- RDA defined spaces that are meant for

business Districts, public use, schools, house and parks

etc. This task taken up by the Respondent No. 2- RDA of

allocation  of  spaces  is  by  statute  vested  with  the

‘local authority’ under its power to make  zonal plans.

It was further contended by the learned senior counsel

that the Raipur Master Plan (Revised) 2021, on the basis

of  which the KVTDS claims to be implementing the Scheme

has also amended  the same without the participation of

the  District  Planning  Committee  which  is  the

constitutionally empowered body to carry out social and

economic planning for a District.

10.  The 73rd and 74th Amendments were inserted in the

Constitution  of  India  with  the  avowed  object  and

intention  of  strengthening  the  local  self-governance

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both at the village and District level. It was argued by

the learned senior counsel Mr. Gopal Subramaniam that

self-governance  was  very  much  a  part  of  the  Indian

society historically. In support of his contention, he

relied  upon  the  words  of  Sir  Charles  Metcalfe,  the

Acting Governor General of India from 1835 to 1836, on

the functioning of the village panchayats made during

the 19th century which are recorded as under:

“The  village  communities  are  little republics, having nearly everything they can want within themselves, and most independent of any foreign relations. They seem to last where  nothing  else  lasts.  Dynasty  after dynasty  tumbles  down;  revolution  succeeds after revolution; but the village community remains the same. The union of the village communities,  each  one  forming  a  separate little  state,  in  itself,  has  I  conceive, contributed more than any other cause to the preservation of the people of India, through all the revolutions and changes which they have  suffered,  and  is  in  a  high  degree conducive  to  their  enjoyment  of  a  great portion of freedom and independence”1

It is imperative to note here that the Constitution,

initially  did  not  vest  with  power  on  villages  or

communities  as  units.  It  rather  vested  power  on

individual as units of the society. It was proposed by 1  Report of the Select Committee of House of Commons. 1832 Vol. III p. 331 as

quoted in T.N. Srivastava, Local ‘Self’ Governance and the Constitution, EPW July 27, 2002 at p. 3190- 3191

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Dr. B.R. Ambedkar, Chairman of the Drafting Committee of

the  Constitution,  that  the  administration  of  India

should not be carried out at village level since they

are  ignorant  units  of  communities  immune  from  the

progress of the city and are also influenced by social

biases and prejudices. With this biases and prejudices,

it was apprehended that India, at the time during the

drafting  of  the  Constitution,  were  not  suited  to  be

ruled at village and panchayat level. On the other hand,

Dr.  Ambedkar  proposed  that  there  should  be  a  strong

Centre  governed  by  the  Rule  of  Law  for  the

administration of the country. Formal inclusion of the

panchayats in the constitutional system was deferred for

a  later  time  since  the  framers  of  the  Constitution

deemed it fit to introduce social reforms in the village

prior  to  conferring  upon  them  the  power  of

self-governance, in the light of the constraints faced

by the new republic of India. Article 40, therefore, was

inserted in the Constitution in the form of Directive

Principles  of  State  Policy  in  Part  IV  of  the

Constitution  so  as  to  move  towards  the  vision  of

introducing local governance when the time seems fit.

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Though, this was the decision taken at the time of the

drafting of the Constitution, most of the framers in the

Constituent  Assembly  reposed  their  faith  on  the

potential of village panchayats and were of the opinion

that  self-governance  at  local  level  is  the  only  way

forward  to  realize  Swaraj  for  our  country.  Shri

Ananthasayanam Ayyangar, the member of the Constituent

Assembly,  presented  his  opinion  on  village  panchayats

before the Assembly which is recorded as under:  

“But who are these republics? They have to be brought  into  existence…..Therefore,  I  would advise that in the directives, a clause must be added,  which  would  insist  upon  the  various governments  that  may  come  into  existence  in future  to  establish  village  panchayats,  give them  political  autonomy  also  economic independence in their own way to manage their own affairs.”2  

11. It  is  further  to  be  noted  that  Entry  5  in  the

list-II  to  the  VIIth  Schedule  of  the  Constitution

enables the State Legislature to make laws pertaining to

local government which also include the powers to be

vested  on  the  Municipal  corporations,  Improvement

Trusts,  Authorities,  Mining  Settlement  Authorities,

District  Boards  and  other  local  authorities  for  the

2  Constituent Assembly Debates, Vol. VII at p. 352 on November 9th, 1949

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purpose  of  village  administration  and  the  local

self-governance. The constitutional amendment in 1992-93

through  the  73rd and  74th Amendment  Act  provided  for

uniformity in the structure in terms of three-tier local

governments at the District (Zila Parishads- ZPs), Block

(Panchayat  Samitis-PS)  and  Village  levels  (Gram

Panchayats-GPs). With the constitutional amendment, the

panchayats  are  constitutionally  expected  to  move  away

from  their  traditional  role  of  simply  executing  the

programs  handed  down  to  them  by  higher  levels  of

government.  They  are  on  the  other  hand,  expected  to

implement their own programs of economic development and

social justice. The amendments further confer power upon

the States in the form of Schedule XI to enlarge the

domain  of  panchayats  and  to  include  functions  with

distributional consequences. This schedule includes key

functions  such  as  agriculture,  drinking  water,

education,  irrigation,  poverty  alleviation,  primary,

secondary  and  adult  education,  roads  and  rural

electrification and maintenance of community assets.   12. It  is  further  submitted  by  the  learned  senior

counsel, Mr. Gopal Subramaniam that as per Article 243

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G(1),  the  authority  to  prepare  plans  for  economic

development and social justice has been vested with the

Gram Panchayat. Articles 243W and 243ZF have also been

inserted to vest the local authority with the power to

prepare plans for economic development. The 12th Schedule

inserted into the Constitution specifically lists “urban

planning including town planning” as an entry on which

local authorities have full power under Article 243W of

the Constitution.    

Further,  Article  243ZD  was  inserted  into  the

Constitution  wherein  the  power  to  prepare  a  draft

development plan is vested with the District Planning

Committee (DPC). The above mentioned provision of the

Constitution is extracted hereunder:

“243ZD. (1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district  and  to  prepare  a  draft  development plan for the district as a whole.  

(2) The Legislature of a State may, by law, make provision with respect to— (a) the composition of the District Planning Committees;  (b)  the  manner  in  which  the  seats  in  such Committees shall be filled: Provided that not less than four-fifths of the total number of members of such Committee shall be elected by, and from amongst, the elected members of the

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Panchayat  at  the  district  level  and  of  the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district; (c) the functions relating to district planning which may be assigned to such Committees; (d) the manner in which the Chairpersons of such Committees shall be chosen.

(3) Every District Planning Committee shall, in preparing the draft development plan,—  (a)  have  regard  to—  (i)  matters  of  common interest  between  the  Panchayats  and  the Municipalities  including  spatial  planning, sharing of water and other physical and natural resources,  the  integrated  development  of infrastructure and environmental conservation; (ii) the extent and type of available resources whether financial or otherwise; (b) consult such institutions and organisations as the Governor may, by order, specify.   (4) The Chairperson of every District Planning Committee shall forward the development plan, as  recommended  by  such  Committee,  to  the Government of the State.”

Also, under Article 243 ZF, any law inconsistent with

the provisions of the Constitution will be held void.

Article 243 ZF reads as under:

“243  ZF.  Continuance  of  existing  laws  and municipalities.-  Notwithstanding  anything  in this Part, any provision of any law relating to Municipalities in force in a State immediately before  the  commencement  of  the  Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed  by  a  competent  Legislature  or  other competent authority or until the expiration of one  year  from  such  commencement,  whichever  is

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earlier: Provided  that  all  the  Municipalities  existing immediately  before  the  commencement  shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative  Council,  by  each  House  of  the Legislative of that State.”   

Similar provision exists for the Gram Panchayats under

Article 243 N of the Constitution.

 13. In the present case, the District Planning Committee

(DPC)  has  been  constituted  under  Section  3  of  the

Chhattisgarh Zila Yojna Samiti Act, 1995 (for short ‘the

Act of 1995’) with an intention to democratize the town

planning  process  to  give  effect  to  the  legislative

intendment. Section 7 of the Act of 1995 provides for

functions  of  the  DPC  as  has  been  prescribed  by  the

Constitution.  The  Constitution  under  Article  243ZD

directs setting up of a DPC to consolidate the plans

prepared  by  Panchayats  and  Municipalities  in  the

Districts and to prepare a draft development plan for

district as a whole and the Director of every DPC shall

forward  such  development  plans  as  recommended  by  the

Committee to the government of the State.  

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14. After  the  insertion  of  part  IX-A  in  the

Constitution, development plan for a District can only

be  drawn  by  the  democratically  elected  representative

body  i.e.  DPC,  by  taking  into  account  the  factors

mentioned in Clause (3)(a) (i), (ii) of Article 243ZD.

As  per  Clause  (4)  of  Article  243ZD,  the  Chairman  of

other  DPC  shall  forward  the  development  plan  as

recommended by the committee to the Government of the

State.

15. To  support  his  contention  further,  the  learned

senior  counsel  Mr.  Gopal  Subramaniam,  relied  upon  a

decision of the Bombay High Court in the case of Charan

v. State of Maharashtra3 wherein it was held as under:

“22. Article 243 of the Constitution of India defines  -  District,  Gram  Sabha,  Panchayat, Panchayat  Area  and  Village.  Article  243G requires legislature of State to make Law to bestow upon Panchayat powers and authority to enable them to function, as institutions of self- government. It may inter-alia provide for  preparation  of  plans  for  economic development  and  social  justice,  for implementation  of  schemes  for  economic development  and  social  justice,  as  may  be entrusted to Panchayats, including those in relation  to  matters  listed  in  Eleventh Schedule to the Constitution. Panchayat has been defined as an institution [by whatever name  called],  of  self-  government,

3  2012 (4) Bom CR 40 at para 22- 23

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constituted  under  Article  243B  for  Rural Areas.  Article  243ZD  provides  for constitution at District level in every State a  Committee,  known  as  District  Planning Committee. It's purpose is to consolidate the plans  prepared  by  the  Panchayats  and  the Municipalities in Districts and to prepare a draft  development  plan  for  district  as  a whole. Article  243P  defines  Municipalities. Definition of District in Articles 243P and 243, as also definition of Panchayat in both the Articles is, identical.  The purpose of Article 243ZD therefore, appears to have a committee  to  effectively  amalgate  together separate plans prepared by the Panchayats and Municipalities, and on its basis to prepare a draft  development  plan  for  District  as  a whole. That Article may also mean that DPC can  consolidate  these  plans  and  also  in addition,  independently  prepare  a  draft development plan for district as a whole. As per Article 243-ZD[2], the State Legislature has  to  provide  for  composition  of  DPC  and filling in of the seats. 4/5th of the total number of members of such committee need to be elected by and from amongst the elected members of the Panchayat at district level and of the municipalities in districts. The law made by the State Legislature may assign to  such  committees  function  relating  to district planning. Article 243-ZD [3] obliges the DPC to prepare a draft development plan having  regard  to  the  matters  of  common interest  between  the  Panchayats  and Municipalities,  including  spatial  planning, sharing  of  water  and  other  physical  and natural resources, integrated development of infrastructure and environment conservation. For  that  purpose,  extent  and  type  of resources needs to be looked into and such resources  may  include  finance  or  other resources. The Legislature of State has been empowered to make law requiring the DPC to discharge  functions  relating  to  district

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planning  as  may  be  assigned  to  it.  Under Sub-Article  [4]  the  Chairperson  of  every District  Planning  Committee  has  to  forward the  development  plan  recommended  by  such committee to Government of State. Obviously, it is the draft development plan referred to in earlier part. Perusal of Eleventh Schedule shows 29 entries, which include Agriculture, Land  improvement,  Animal  Husbandry,  Social Forestry,  Rural  housing,  Drinking  water, Poverty  alleviation,  Education,  Libraries, Market  and  fairs,  Health  and  Sanitation, Family welfare, Women and Child Development etc. Entry no.13 therein deals with Roads, Culverts,  Bridges,  Ferries,  Waterways  and other  means  of  communication.  Article  243W casts similar power and obligation upon the Municipalities. Schedule relevant therein is Twelfth  Schedule  and  Roads  and  Bridges  is entry no.4 in it. Article 243N specifies that any  law  relating  to  Panchayat  in  force, immediately  before  the  commencement  of  the Constitution [73rd Amendment] Act, 1992 which is inconsistent with the provision of this part IX of the Constitution, shall continue to be in force until amended or repealed by a competent legislature or until the expiration of one year from its commencement, whichever is earlier. Thus, these new provision added to  Constitution  for  strengthening  the Panchayat Raj must operate after 1 year, if State  Legislature  had  any  inconsistent  law with  provision  in  said  part  and  if  that Legislature does not bring it in consonance with  said  part  within  said  period  of  one year.

23. These Constitutional provision no where show the intention of Parliament to deprive the  Panchayats  or  Municipalities  of  their powers  or  to  dilute  their  function  as institutions  of  self-government.  On  the contrary,  subject  to  provision  of

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Constitution,  the  Legislature  of  State  has been permitted to confer necessary powers and authority upon these bodies to enable them to function  effectively.  Article  243ZD  which makes  a  provision  for  DPC,  is  one  such provision.  It  requires  the  Legislature  to make a law and stipulates that purpose of DPC is to consolidate the plan prepared by the Panchayats  and  Municipalities  in  Districts and to prepare a draft development plan for District as a whole. The provision noted by us above show relevance of matters of common interest, as specified in Article 243 ZD [3] [a]  for  said  purpose. A  Panchayat  or Municipality can function only in area over which it has jurisdiction. Schemes prepared by  it,  therefore  may  not  have  any  extra territorial application though possibility of its such impact or extending its benefit to outsiders  cannot  be  ruled  out.  The  water reservoir  or  other  physical/natural resources,  in  jurisdiction  of  such institution of local self government can be conveniently exploited for larger area of two or  more  Panchayats  or  then  Panchayats  and municipalities  at  same  cost  or  by  saving public  revenue.  To  facilitate  such exploitation, the Parliament has thought it fit to create a District Planning Committee [DPC]  which  can  consolidate  the  otherwise separate plans prepared by the Panchayats and Municipalities  and  prepare  a  draft development  plan  for  entire  District  as  a whole.  It is, therefore, obvious that when such consolidation of development plans which are otherwise separate, becomes necessary or is found essential in larger public interest, DPC has been constituted to undertake that exercise. It has been given power to prepare a draft development plan for district as a whole  also.  Thus  idea  seems  to  be  maximum utilization of resources at minimum costs by larger  number  of  people  spread  over  under different local bodies in a district. Article

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243ZD does not confer any executable status on such plans and the same need to be sent to Government of the State. Thus, if development is restricted to area of only one authority and  has  no  extraterritorial  potential,  the right of concerned local authority to proceed with it, is normally not prejudiced in any way.”

(emphasis supplied by this Court)

As has been mentioned supra, the Respondent No.2-RDA was

constituted under Section 38 of the Act of 1973. The

Town Development Scheme framed by Respondent No. 2-RDA,

however, has to be read in the light of Section 50(4)

which provides for the approval of the Town Development

Scheme by appropriate authority which reads as under:

“(4)  The  Town  and  Country  Development Authority shall consider all the objections and suggestions as may be received within the period  specified  in  the  notice  under  sub section  (3)  and  shall,  after  giving  a reasonable  opportunity  to  such  persons affected  thereby  as  are  desirous  of  being heard, or after considering the report of the committee constituted under Sub section (5) approve the draft scheme shall be deemed to have lapsed.]”

Further,  an  amendment  was  made  for  the  State  of

Chhattisgarh  only,  with  respect  to  constitution  of

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committee for evaluating reconstitution of plots for the

purpose of the Town Development Scheme. The amendment

came into force w.e.f. 6.9.2010 which reads as under:

“[(5)  Where  the  town  development  scheme relates to reconstitution of plots, the Town and  Country  Development  Authority  shall, notwithstanding  anything  contained  in  Sub- section  (4),  constitute  a  committee consisting of the Chief Executive Officer of the said Authority and to other members of whom  one  shall  be  representative  of  the District  Collector,  not  below  the  rank  of Deputy Collector and the other shall be an officer  of  the  Town  and  Country  Planning Department  not  below  the  rank  of  Deputy Director nominated by the Director of Town & Country Planning for the purpose of hearing objection and suggestions received under sub- section (3).]”

(emphasis supplied by the Court)

Therefore,  in  the  light  of  the  provisions  mentioned

above  if  read  in  harmonious  construction,  the  Chief

Executive  Officer  of  Respondent  No.  2-RDA  is  not

permitted to unilaterally prepare a development scheme

resulting  reconstitution  of  land  without  taking  into

consideration  the  opinion  and  suggestions  of  the

democratically  elected  bodies  such  as  the  District

Planning Committee and Officer of the Town and Country

Planning Department, as mentioned in the Act of 1973.

However, in the present case, as per the evidence on

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record put before us, the Chief Executive Officer of

Respondent No. 2- RDA, formulated the Town Development

Scheme  without  taking  the  opinion  of  the  local

committees which are constitutionally authorized to make

suggestions  in  the  matter  of  Town  Development  Scheme

under the amended provisions of Section 50(5) of the Act

of 1973.

    In addition to this, it has been contended by the

learned senior counsel on behalf of the appellants that

the  present  master  plan,  of  which  the  development

authority wants to implement, has been prepared by the

Chief Executive Officer without regard to the District

Planning  Committee’s  power  under  the  constitutional

provisions  which  provisions  are  incorporated  in  the

State Act. Therefore, it has been argued by the learned

senior counsel that the revised master plan itself is

opposed to the constitutional and statutory provisions

and  therefore,  it  is  a  nullity  in  the  eyes  of  law.

Following the same, the KVTDS framed and purported in

compliance with the Raipur Master Plan (Revised) 2021,

is also nullity in the eyes of law.

   16. The above said argument is raised by the learned

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senior counsel on behalf of the appellants drawing our

attention  to  the  case  of  Chairman,  Indore  Vikas

Pradhikaran  v.  Pure  Industrial  Coke  &  Chemicals  Ltd.4

which will be discussed in the appropriate place of this

judgment. It was held in that case that both development

plan  and  master  plan  are  one  and  the  same  thing

described by different names in different states. It has

been admitted by the Respondent No. 2- RDA that they

have prepared the Master Plan (Revised) 2021. We are of

the opinion that the Master Plan so prepared is in clear

contravention  of  Section  14  of  the  Act  of  1973  read

along with Section 17 of the same Act. Section 17 of the

Act  mandates  the  requirement  of  taking  into

consideration  the  Annual  Development  Plan  of  the

District prepared under the Madhya Pradesh Zila Yojana

Samiti Adhiniyam 1995. However, in the case in hand,

there is no evidence to show that the Respondent No. 2-

RDA  had  taken  into  consideration  any  report  prepared

under  the  Act  of  1995.  On  the  other  hand,  there  is

correspondence on record to prove that the Respondent

No.  2-  RDA,  on  its  own,  without  taking  into

consideration any report, revised the Master Plan 2021 4  (2007) 8 SCC 705

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to suit it to the requirement of the KVTDS. Therefore,

we are of the opinion that the Master Plan (Revised)

2021 requires reconsideration and should be prepared in

accordance with the legal procedure.

17. Next, it is relevant for us to examine Entry 5 of

List  II  of  the  Seventh  Schedule  to  the  Constitution

which empowers the local government to elect members to

municipal  corporations,  improvement  trusts,  District

boards,  Mining  settlement  authorities  and  other  local

authorities for the purpose of local self-government or

village administration. Also, under Entries 1 and 3 of

Twelfth Schedule, Urban planning includes town planning

and  planning  for  economic  and  social  development

respectively. In the light of the above entries, it is

contended by the learned senior counsel on behalf of the

appellants, Mr. Gopal Subramaniam and Mr. Huzefa Ahmadi

that the Act of 1973 in the present case has been read

by  the  respondents  without  taking  into  account  the

subsequent amendments made to the Act in adherence to

the  constitutional  amendment  provision.  As  a

consequence, the power vested on the Director of the

Planning  Authority  has  been  read  by  the  respondent

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No.2-RDA in isolation to the subsequent amendments made

in the Act thereby violating the present constitutional

scheme of self governance.

18.  It was further argued by the learned senior counsel

on behalf of the appellants that under Article 243 N and

Article  243  ZF,  the  Act  of  1973  was  required  to  be

amended to make it adherent to the provisions of 73rd and

74th Constitutional  amendments.  The  learned  senior

counsel  further  argued  that  disobedience  to  the

constitutional mandate amounts to breaking down of the

federal  polity  leading  to  constitutional  impasse.  The

amended provisions of the Act of 1973 clearly provides

for a role of local authorities in the planning process.

The same cannot be abrogated. It is also contended that

the  role  and  functions  of  the  District  Planning

Committee were notified once Chhattisgarh was notified

out of Madhya Pradesh. This was further supplemented by

the  District  Planning  Committee.  Therefore,  in  the

presence of a notified District Planning Committee, it

was argued by the learned senior counsel, that planning

for districts as a conglomeration of panchayats cannot

be done by Respondent No. 2-RDA.

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19. We  are  in  agreement  with  the  legal  contentions

raised by the learned senior counsel on behalf of the

appellants.  Once  the  Constitution  provides  for

democratically elected bodies for local self-government,

a  nominated  body  like  Respondent  No.  2-  RDA  cannot

assume  the  role  of  an  elected  body  and  consequently

usurp  the  power  of  the  local  authority  in  framing

development schemes and subsequently altering the size

and use of land in the KVTDS.

20.  On the other hand, it was argued by Mrs. Pinky

Anand and Mr. Prashant Desai, the learned senior counsel

on  behalf  of  the  respondents  that  most  of  the

submissions made by the learned senior counsel of the

appellants, were not raised before the courts below and

have been raised for the first time before this Court on

the ground of violation of the 73rd and 74th amendment of

the Constitution. Further, it was argued that there has

been  full  compliance  of  73rd and  74th Constitutional

Amendment and the committee as contemplated by the said

amendment, is also responsible for the modification or

revision of the development plan under Section 23 read

with Sections 14 to 18 of the Act of 1973.

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21.  We are not able to agree with the contention of the

respondent that a ground raised before this Court for

the first time is not maintainable because it has been

raised before us for the first time and has not been

raised before the courts below. Though the said legal

plea is raised for the first time in these proceedings,

the learned senior counsel on behalf of the appellants

placed reliance upon the judgment of the Privy Council

In Connecticut Fire Insurance Co. v. Kavanagh5  wherein,

Lord Watson has observed as under:

“when a question of law is raised for the first time in a court of last resort, upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is not only competent but expedient, in the interests of justice, to entertain the plea.”

The aforesaid views of the Court of Appeal have been

relied upon by this Court in  Gurcharan Singh  v. Kamla

Singh6. The  above  mentioned  aspect  of  Article  243ZD,

although is being raised before this Court for the first

time,  we  are  of  the  view  that  the  same  is  based  on

admitted facts.  The legal submission made on behalf of

the appellants under Article 243ZD of the Constitution 5  [(1892) A.C. 473, 480 (Privy Council) 6  (1976) 2 SCC 152

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has to be accepted by this Court in view of the similar

view that a new ground raising a pure question of law

can be raised at any stage before this Court as laid

down by this Court in V.L.S. Finance Limited v. Union of

India & Ors.7, which reads thus :-

“7.  Mr  Shankaranarayanan  has  taken  an extreme stand before this Court and contends that  the  Company  Law  Board  has  no jurisdiction  to  compound  an  offence punishable under Section 211(7) of the Act as the punishment provided is imprisonment also.  Mr  Bhushan,  however,  submits  that imprisonment is not a mandatory punishment under Section 211(7) of the Act and, hence, the Company Law Board has the authority to compound the same. He also points out that this  submission  was  not  at  all  advanced before the Company Law Board and, therefore, the appellant cannot be permitted to raise this question for the first time before this Court.  We  are  not  in  agreement  with  Mr Bhushan  in  regard  to  his  plea  that  this question cannot be gone into by this Court at the first instance. In our opinion, in a case in which the facts pleaded give rise to a pure question of law going to the root of the matter, this Court possesses discretion to  go  into  that.  The  position  would  have been  different  had  the  appellant  for  the first  time  prayed  before  this  Court  for adjudication on an issue of fact and then to apply the law and hold that the Company Law Board  had  no  jurisdiction  to  compound  the offence.”

Further, this Court in  Greater Mohali Area Development

7  (2013) 6 SCC 278

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Authority & Ors. v. Manju Jain & Ors.8 held as under :-

“26. Respondent  1  raised  the  plea  of non-receipt of the letter of allotment first time before the High Court. Even if it is assumed  that  it  is  correct,  the  question does arise as to whether such a new plea on facts  could  be  agitated  before  the  writ court. It is settled legal proposition that pure question of law can be raised at any time of the proceedings but a question of fact  which  requires  investigation  and inquiry, and for which no factual foundation has been laid by a party before the court or tribunal  below,  cannot  be  allowed  to  be agitated in the writ petition. If the writ court  for  some  compelling  circumstances desires to entertain a new factual plea the court  must  give  due  opportunity  to  the opposite  party  to  controvert  the  same  and adduce  the  evidence  to  substantiate  its pleadings. Thus, it is not permissible for the  High  Court  to  consider  a  new  case  on facts  or  mixed  question  of  fact  and  law which was not the case of the parties before the court or tribunal below. [Vide State of U.P. v. Dr. Anupam Gupta, Ram Kumar Agarwal v. Thawar Das, Vasantha Viswanathan v. V.K. Elayalwar, Anup Kumar Kundu v. Sudip Charan Chakraborty,  Tirupati  Jute  Industries  (P) Ltd. v.  State  of  W.B. and  Sanghvi Reconditioners (P) Ltd. v. Union of India.]

27. In the instant case, as the new plea on fact has been raised first time before the High  Court  it  could  not  have  been entertained, particularly in the manner the High Court has dealt with as no opportunity of controverting the same had been given to the  appellants.  More  so,  the  High  Court, instead of examining the case in the correct

8  (2010) 9 SCC 157

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perspective,  proceeded  in  haste,  which itself  amounts  to  arbitrariness.  (Vide Fuljit Kaur v. State of Punjab.)”

In National Textile Corporation Ltd. v. Naresh Kumar  

Badrikumar Jagad9, it was held as under:-

“19. There  is  no  quarrel  to  the  settled legal proposition that a new plea cannot be taken in respect of any factual controversy whatsoever, however, a new ground raising a pure legal issue for which no inquiry/proof is required can be permitted to be raised by the court at any stage of the proceedings. [See  Sanghvi  Reconditioners  (P)  Ltd. v. Union  of  India and  Greater  Mohali  Area Development Authority v. Manju Jain.]”

22.  Further, this Court has frowned upon the practice

of the Government to raise technical pleas to defeat the

rights of the citizens in Madras Port Trust v. Hymanshu

International10 wherein it was opined that it is about

time that governments and public authorities adopt the

practice of not relying upon technical pleas for the

purpose of defeating legitimate claims of citizens and

do what is fair and just to the citizens. Para 2 from

the said case reads thus :-

“2. We do not think that this is a fit case 9  (2011) 12 SCC 695 10  (1979) 4 SCC 176

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where we should proceed to determine whether the claim of the respondent was barred by Section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the court always looks  upon  with  disfavour  and  it  is unfortunate that a public authority like the Port  Trust  should,  in  all  morality  and justice,  take  up  such  a  plea  to  defeat  a just claim of the citizen. It is high time that  governments  and  public  authorities adopt  the  practice  of  not  relying  upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken  up  by  a  government  or  a  public authority, unless of course the claim is not well-founded  and  by  reason  of  delay  in filing it, the evidence for the. purpose of resisting  such  a  claim  has  become unavailable.  Here,  it  js  obvious  that  the claim  of  the  respondent  was  a  just  claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in  the  exercise  of  our  discretion  under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on Section 110 of the Madras Port Trust Act (II of 1905).”

23. We are also not inclined to accept the contention

urged by the learned senior counsel on behalf of the

respondents that the committee is authorised to modify

or alter the Development Plan under Sections 14 and 17

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read with Section 23 of the Act of 1973.

24. As has been mentioned earlier, section 14 of the Act

confers the power upon the Director of Town and Country

Planning appointed under the Act, to prepare development

plans. However, this power conferred upon the Director

has to be read along with Section 17 of the Act, which

mandates the Director to take into consideration, any

draft Five Year Plan and Annual Development Plan of a

district prepared under the Madhya Pradesh Zila Yojana

Samiti Adhiniyam, 1995. In the case in hand, there is no

evidence  to  prove  that  the  Director  had  taken  into

account any report made under the 1995 Adhiniyam. On the

other hand, the evidence on record produced before us

clearly shows that the Development Plan has been altered

to  suit  the  requisites  of  KVTDS.  This  action  by  the

Director is impermissible and unlawful. 25. Therefore, we are inclined to accept the contention

raised by the learned senior counsel on behalf of the

appellants and hold that KVTDS, having formulated solely

by  the  Respondent  No.  2-  RDA  without  taking  into

consideration  the  reports  of  the  local  authority,

violates the Act of 1973 as well as Part IX and IX-A of

the Constitution.

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26.  We are inclined to agree with the fact that the

Development Plan and its modification has not been made

in accordance with the constitutional mandate and the

Act  of  1973.  It  is  further  contended  by  the  learned

senior counsel on behalf of the appellants that in the

backdrop  of  the  aforesaid  Constitutional  morality  and

the fact situation of the cases in hand, the decision of

the Respondent No.2- RDA to add 1900 acres of land at

different  stages,  and  also  change  of  land  use,  is

sullied  by  bias  of  Sri  S.S.  Bajaj,  who  acted  in

different capacities in relation to the same transaction

wherein each authority was expected to apply its mind

independently of each other. The said contention by the

learned senior counsel on behalf of the appellants is

well  founded  and  the  same  must  be  accepted  by  this

Court. There is strong substance and evidence in the

submissions  of  the  learned  senior  counsel  of  the

appellants. As per the evidence produced before us, on

20.07.2009, one Sri S.S. Bajaj, served as the CEO of the

Respondent No. 2- RDA proposed addition of 1900 acres of

land in KVTDS.  About 20 days later, on 10.08.2009, the

same Mr. S.S. Bajaj was serving as Special Secretary,

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Department  of  Housing  &  Environment,  Chhattisgarh

Government,  which  is  Respondent  No.1  before  us  has

approved the said addition of 1900 acres of land to the

scheme which is a clear case of bias. This Court has on

many occasions, mentioned the bare minimum requirement

of trust and fairness by the state that should ensure

its people in running of the government. In the case of

Mohinder  Singh  Gill  v. Chief  Election  Commissioner11,

this Court held as under:  

“3.  The  moral  may  be  stated  with  telling terseness in the words of William Pitt: 'Where laws end, tyranny begins'. Embracing both these mandates and emphasizing their combined effect is the elemental law and politics or Power best expressed by Benjamin Dizreeli: I repeat...that all power is a trust-that we are accountable for its exercise-that, from the people and for the people, all springs, and all must exist."  (Vivien Grey, BK. VI. Ch. 7) Aside from these is yet another, bearings on the  play  of  natural  justice,  its  nuances, non-applications, contours, colour and content. Natural Justice is no mystic testament of judge made  juristic  but  the  pragmatic,  yet principled, requirement of fairplay in action as the norm of a civilised justice-system and minimum of good government-crystallised clearly in our jurisprudence by a catena of cases here and elsewhere….”

It has also been held by this Court that principles of

11  (1978)  1 SCC 405

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natural  justice  are  applicable  to  administrative

enquiries as well, and that no person can be a judge in

his own cause. It was held in the case of A.K Kraipak &

Ors. v. Union of India & Ors.12:

“20.The aim of the rules of natural justice is to secure justice or to put it negatively to  prevent  miscarriage  of  justice.  These rules can operate only in areas not covered by any law validly made.  In  other  words  they do not supplant the law  of  the  land  but supplement it. The concept of natural justice has  undergone  a  great  deal  of  change  in

recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case  (Nemo debet esse judex propria causa) and (2) no decision  shall  be  given  against  a  party without  affording  him  a  reasonable  hearing (audi alteram partem). Very soon there- after a third rule was envisaged and that is that quasi-  judicial  enquiries  must  be  held  in good faith, without bias  and  not arbitrarily or unreasonably. But in  the course  of  years  many  more  subsidiary  rules came to be added to the rules of  natural justice. Till very  recently  it  was  the opinion  of  the  courts  that  unless  the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to

administrative enquiries. Often times it is not  easy  to  draw  the  line  that  demarcates administrative enquiries from quasi-judicial enquiries.  Enquiries  which  were  considered

12  (1969) 2 SCC 262

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administrative  at  one  time  are  now  being considered  as  quasi-judicial  in  character. Arriving  at  a  just  decision  is  the  aim  of both  quasi-  judicial  enquiries  as  well  as administrative enquiries.”

For the above reason alone as rightly contended by the

learned senior counsel on behalf of the appellants, the

enhancement of land in the KVTDS is vitiated due to lack

of objectivity and non-application of mind.  

27. The initial intention to prepare the KVTDS of 416.93

acres  was  published  in  the  Gazette  on  05.06.2009.

Thereafter, on 14.07.2009, Sri S.S. Bajaj serving as CEO

of Respondent No. 2- RDA presided over the meeting of

the Board of Directors of the RDA wherein the decision

to  add  1900  acres  of  land  of  villages  including

Dumartarai Village to KVTDS was taken. Pursuant to the

said Board Resolution, the CEO-RDA sent a proposal dated

20.07.2009 to the State Government seeking addition of an

area of 1900 acres to the KVTDS.  It is clear from the

minutes of the Board meeting on 14.7.2009 as well as the

said proposal dated 20.7.2009 that no prior survey or

assessment of the need for addition of land to the area

of the scheme was undertaken by the RDA. 28. As rightly pointed out by the learned senior counsel

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on behalf of the appellants, a proposal for the Town

Development Scheme required to be submitted to the State

Government in accordance with the Government Order dated

18.11.1999 and it is the obligation of the Respondent

No. 1- State Government to independently consider such a

proposal and exercise its mind as to whether the same is

proper and if it raises concerns of public interest when

such inclusion of the land use is made under the Town

Development Scheme.  Independently, it is evident from

the fact that on 20th July, 2009, a proposal was sent by

the Respondent No. 2- RDA to the Respondent No. 1- State

Government and the same was approved by Sri S.S. Bajaj,

who  at  that  point  of  time  was  acting  as  Special

Secretary,  Department  of  Housing  and  Environment,

Government  of  Chhattisgarh  who  had  also  proposed  the

addition of 1900 acres to be included in the scheme when

he was acting as the CEO of the RDA. It is evident from

the  evidence  put  on  record  before  us  that  the  same

person  was  acting  in  two  different  capacities  who

proposed as well as accepted the plan of addition of

land at subsequent stage. The said proposal was accepted

within a span of 20 days only i.e. on 10.08.2009.

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29. In view of the aforesaid undisputed facts as pointed

out  by  the  learned  senior  counsel  on  behalf  of  the

appellants,  the  aforesaid  decision  taken  by  Sri  S.S.

Bajaj as Special Secretary, Department of Housing and

Environment, Government of Chhattisgarh (Respondent No.

1) in approving the proposal of RDA to include large

extent of land to the KVTDS is  vitiated action in law

as the same is tainted with bias and non-application of

mind on the part of the State Government-Respondent No.1

with regard to the proposal of the Respondent No. 2- RDA

to include large extent of land in the scheme.  The

Respondent  No.  2-  RDA  released  an  affidavit  dated

23.11.2010 on the ground of challenge by stating that:

“all decisions and actions have been taken by the  Authority  and  not  by  any  individual. Even otherwise the communications done by the officer for the answering respondent was not his  individual  communication  but  was  on behalf of the Committee as well as Board of Directors and therefore could not be said to have  in  his  individual  capacity.  Likewise, whole  corresponding  on  behalf  of  the  State Government  and  on  behalf  of  His  Excellency the Governor and in his individual capacity.”

30.  However  on  the  basis  of  the  evidence  on  record

produced before us, we are unable to concede with the

affidavits so released by Respondent No. 2- RDA since

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the evidence of bias and self-interest is evident. This

Court  in  one  occasion,  in  the  case  of  The  State  of

Punjab and Anr. v. Gurdial Singh and Ors.13 opined with

respect to mala fide in jurisprudence of power, as under

:-

“9. The question, then, is what is mala fides in the jurisprudence of power? Legal malice is gibberish unless juristic clarity keeps it separate from the popular concept of personal vice.  Pithily  put,  bad  faith  which invalidates the exercise of power sometimes called colourable exercise or fraud on power and oftentimes overlaps motives, passions and satisfactions  is  the  attainment  of  ends beyond the sanctioned purposes" of power by simulation  or  pretension  of  gaining  a legitimate goal. If the use of the power is for the fulfilment of a legitimate object the actuation or catalysation by malice is not legicidal. The action is bad where the true object is to reach an end different from the one for which the power is entrusted, goaded by  extraneous  considerations,  good  or  bad, but irrelevant to the entrustment. When the custodian  of  power  is  influenced  in  its exercise by considerations outside those for promotion of which the power is vested the court calls it a colourable exercise and is undeceived by illusion. In a broad, blurred sense, Benjamin Disraeli was not off the mark even in Law when he stated: "I repeat that all power is a trust that we are accountable for its exercise that, from the people, and for  the  people,  all  springs,  and  all  must exist".Fraud on power voids the order if it is  not  exercised  bona  fide  for  the  end designed. Fraud in this context is not equal

13  AIR 1980 SC 319

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to moral turpitude and embraces all cases in which the action impugned is to effect some object which is beyond the purpose and intent of the power, whether this be malices-laden or even benign. If the purpose is corrupt the resultant  act  is  bad.  If  considerations, foreign  to  the  scope  of  the  power  or extraneous to the statute, enter the verdict or impel the action mala fides or fraud on power,  vitiates  the  acquisition  or  other official act.”  

In the case in hand, we are convinced that the action

taken  by  Respondent  No.  2-  RDA  as  mentioned  in  the

affidavit issued by it, meets different ends than the

reason for which power had been assigned to it. It is

contended by the learned senior counsel on behalf of the

appellants that there was no “Committee” in place. We

are  in  agreement  with  this  contention  raised  by  the

learned senior counsel. As per the Order issued by the

Revenue  Branch  of  Respondent  No.  2-  RDA,  the  said

Committee which was to review the scheme under Section

50(5) of the Act of 1973, was constituted only on or

about 30.11.2009 but the decision to further extend the

land size into the Town Development Scheme can be traced

as early as 14.7.2009 with the report of Board Meeting

No. 03/09.

31.  Apart  from  the  said  contravention  made  by  the

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Respondent No. 2- RDA, its proposal to have township of

2300  acres  of  land  was  examined  by  a  Committee

constituted  under  Section  50(5)  of  the  Act  of  1973,

which prepared its report dated 8.6.2010.  The same was

accepted by Shri S.S. Bajaj, Chairman of Respondent No.

2-RDA  in  the  Board  meeting  held  on  21.6.2010  and

22.6.2010. Therefore, the entire exercise made by RDA

under Section 50 (5) of the Act has been rendered otiose

and an empty formality in the light of the decisions of

this Court mentioned supra and in view of the aforesaid

undisputed facts in relation to the action taken by the

Respondent  No.  1-State  Government,  to  give  permission

only  after  applying  its  mind  independently  on  the

materials submitted by the Respondent No. 2-RDA which is

not  done  by  the  State  Government  and  therefore,  the

power exercised by the State Government in sanctioning

the  proposed  scheme  of  Respondent  No.  2-  RDA  has

rendered otiose. It is a well established principle in

the Indian jurisprudence that no one can be a judge in

his own case. The fact has been established by various

decisions of this Court. It was held in the case of M/s.

J. Mohapatra and Co. and Anr. v. State of Orissa & Anr.14 14  AIR 1984 SC 1572

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as under:

“12. There is, however, an exception to the above rule that no men shall be a judge in his  own  cause,  namely,  the  doctrine  of necessity. An adjudicator, who is subject to disqualification  on  the  ground  of  bias  or interest  in  the  matter  which  ha  has  to decide,  may  be  required  to  adjudicate  if there is no other person who is competent or authorized  to  adjudicate  or  if  a  quorum cannot be formed without him or if no other competent  tribunal  can  be  constituted.  In such cases the principle of natural justice would  have  to  give  way  to  necessity  for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney-General for Saskatchewan 53 TLR 464, the Judges of the Court of Appeal were held competent to decide the question whether Judges of the Court of Appeal, of the Court of King's Bench and of the District Courts of the Province of Saskatchewan were subject to taxation under the Income-tax Act, 1932, of Saskatchewan on the ground that they were  bound  to  act  ex  necessitate.  The doctrine  of  necessity  applies  not  only  to judicial matters but also to quasi-judicial and administrative matters. The High Court, however, wrongly applied this doctrine to the author-members  of  the  Assessment Sub-Committee.  It  is  true,  the  members  of this  Sub-Committee  were  appointed  by  a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education  Department  of  the  Government  of Orissa, and the Director, Higher Education, etc. There was, however, nothing to prevent those  whose  books  were  submitted  for selection from pointing out this fact to the State Government so that it could amend its Resolution  by  appointing  a  substitute  or

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substitutes, as the case may be. There was equally nothing to prevent such nonofficial author-members  from  resigning  from  the committee on the ground of their interest in the matter.”

 Therefore, in the light of the reasons mentioned by us

above, we are of the considered view that there is total

lack of application of mind by the Respondent No. 1-

State Government in not taking into consideration all

the relevant aspects while declaring the KVTDS as well

as the finance Scheme proposed by the Respondent No. 2-

RDA.  The Respondent No. 1- State Government could not

have sanctioned the aforesaid Scheme as the same is in

contravention to the procedure laid down comprehensively

in Section 50 of the Act of 1973.  The initial approval

of the Scheme was on 25.1.2008 and approval to add 1900

acres of land to KVTDS dated 10.08.2009 was granted by

the State Government without any application of mind and

objective  consideration  by  the  Respondent  No.  1-State

Government which fact is expressly clear as the said

proposed  scheme  was  neither  in  accordance  with  the

Development Plan nor did any Zonal Plan which existed at

the material point of time.  Therefore, for the reasons

mentioned by us, we answer this point in favour of the

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appellants.

Answer to Point No. 2 32. It is contended by the learned senior counsel on

behalf  of  the  appellants  that  the  Town  Development

Scheme  KVTDS  prepared  in  the  case  in  hand,  is  in

contravention to the provisions laid down in Section 50

of the Act. Section 50(1) of the Act of 1973 reads thus:

“Preparation of Town Development Schemes-  (1) The Town and Country Development Authority

may,  at any time, declare its intention to prepare a Town Development Scheme: [Provided that no such declaration of intent shall be made without the prior approval of the State Government]. ………”

Reliance has been placed upon the phrase “at any time”

in  Section  50(1)  of  the  Act  of  1973  by  the  learned

senior counsel on behalf of the appellants contending

that  it  is  not  a  source  of  arbitrary  and  unbridled

power/discretion to exercise its power arbitrarily but

requires  study,  survey  and  assessment  of

need/requirement of plots for the residents of the area

before the intention of the RDA can be declared by the

Town and Country Development Authority.

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33.  In  this  regard,  the  learned  senior  counsel  on

behalf of the appellants have rightly placed reliance

upon the judgment of this Court in the case of Chairman,

Indore Vikas Pradhikaran (supra), wherein it was held as under:  

“80. Section 50(1) of the Act provide for declaration  of  this  intention  to  prepare town development scheme “at any time”. The words “at any time” do not confer upon any statutory authority an unfettered discretion to  frame  the  town  development  scheme whenever it so pleases. The words “at any time” are not charter for the exercise of an arbitrary decision as and when a scheme has to be framed. The words “at any time” have no  exemption  from  all  forms  of  limitation for  unexplained  and  undue  delay.  Such  an interpretation would not only result in the destruction  of  citizens’  rights  but  would also go contrary to the entire context in which  the  power  has  been  given  to  the authority.

81. The  words  “at  any  time”  have  to  be interpreted in the context in which they are used. Since a town development scheme in the context of the Act is intended to implement the  development  plan,  the  declaration  of intention to prepare a scheme can only be in the  context  of  a  development  plan.  The starting  point  of  the  declaration  of  the intention has to be upon the notification of development plan and the outer limit for the authority  to  frame  such  a  scheme  upon lapsing of the plan. That is the plausible interpretation  of  the  words  “at  any  time” used in Section 50(1) of the Act. (See State of H.P. v. Rajkumar Brijender Singh.”

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The phrase “at any time” under Section 50(1) of the Act

is  not  a  charter  for  the  exercise  of  an  arbitrary

decision as and when a scheme has to be framed.  The

words ‘At any time” have no exemption from all forms of

limitation for unexplained and undue delay.  Such an

interpretation would not only result in destruction of

citizens rights but would also go contrary to the entire

context in which the power has been conferred upon the

authority.

34. Also, a proviso added to Section 50(1) of the Act in

the year 2012 states that a Development Authority can

declare  its  intention  of  preparing  Town  Development

Scheme  only  with  the  prior  approval  of  the  State

Government.

35. Section  49  of  the  Act  of  1973  provides  for  the

matters  for  which  a  Town  Development  Scheme  can  be

prepared. Section 49 of the Act reads thus:

“49.  Town  Development  Scheme-  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

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degenerated into a slum; (iii) acquisition and development of land for public purposes such as housing development, development  of  shopping  centres,  cultural centres, administrative centres; (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  and other facilities; (vi) acquisition of land and its development for the purpose of laying out or remodelling of road and street patterns; (vii) acquisition and development of land for playgrounds,  parks,  recreation  centres  and stadia; (viii)  re-construction  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 prior approval of the State Government.”

Section 50(1) of the Act of 1973 vests the jurisdiction

on the Town and Country Development Authority to declare

its intention for preparing a Town Development Scheme,

which in this case is the Respondent No. 2-RDA. Section

49  provides  that  a  Town  Development  Scheme  can  be

proposed  for  the  purpose  of  town  expansion,  for

rebuilding and regenerating areas which have degenerated

into  slums,  acquire  and  development  land  for  public,

commercial  and  industrial  purpose  and  also  for  other

work which would bring about environmental improvement

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which shall also be taken up with the prior approval of

the State Government.  It may be noted that Respondent

No. 2- RDA has not put any document on record, either

before  the  High  Court  or  this  Court  which  shows  any

assessment of “need” or “requirement” for town expansion

conducted  by  it  prior  to  proposing  the  KVTDS.  Even

though  KVTDS  has  allegedly  been  introduced  for  a

population of 16,000 per 40 Hect.  of land there is no

document /survey report on record to show how the said

figure was arrived at by the RDA.  The requirement of

such  assessment  was  all  the  more  necessary  because

already  a  new  capital  called  ‘Naya  Raipur’  has  been

built near Raipur.

36.  Further, frequent changes in the extent of land

acquired  for  the  KVTDS  by  the  RDA  is  a  very  strong

indicator of the fact that there is no rationale behind

the proposal of the said Scheme. The Respondent No.2-

RDA had proposed the area of KVTDS to be 900 acres on

31.7.2006,  1100  acres  on  14.11.2006,  394  acres  on

3.6.2008 and eventually 2300 acres on 20.7.2009, without

assigning  reasons  for  coming  to  such  conclusions  in

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expanding the area to the scheme. In view of the above,

there is clear non-application of mind on the part of

the  State  Government  behind  the  increase  in  the

sanctioned area of KVTDS from 416.93 acres of land to

2300  acres  of  land.   In  fact,  in  the  letter  dated

27.8.2008  to  the  Joint  Director,  Town  and  Country

Planning Authority, it has been specifically noted that

physical survey of the area must be carried out.  It is

contended by the learned senior counsel on behalf of the

appellants  that  even  the  letter  dated  20.7.2009

addressed by Respondent No. 2- RDA to the Respondent No.

1- State Government admits that survey  of the area is

being carried out in respect of previous 416.93 acres of

land.  In the instant case, the proposal to have KVTDS

as well as sanction for the same by the Respondent No.

1- State Government, is not preceded by a survey of the

area, which renders the exercise of its power of ex post

facto survey into an empty formality which action of it

is wholly unsustainable in law.

37. Further, the purpose of the KVTDS as has been cited

by the Respondent No. 2- RDA, is only with the purpose

of  curbing  illegal  plotting  which  can  be  served  by

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regulating  development  work  by  exercise  of  statutory

power vested in the Respondent No. 2- RDA under the Act

of 1973. On the pretext of regulating development or

stopping illegal construction/ plotting, the Respondent

No.2- RDA cannot take away the land of the appellants in

exercise of the power of eminent domain by the State

Government. The Town Development Scheme envisaged under

Section 49 of the Act is for the purpose of acquisition,

development and sale or leasing of land for the purpose

of town expansion. Under Section 49 (i) and (ii) of the

Act, the Respondent No. 2- RDA has power only to provide

for housing and not for plotting. Reconstruction of plot

under Section 49 clause (viii) of the Act, is confined

only  for  the  limited  purpose  of  buildings,  roads,

drains,  sewage,  sewage  lines  and  other  similar

amenities.  Reliance  was  also  placed  by  the  learned

senior  counsel  on  behalf  of  the  appellants,  on  the

decision of this Court in the case of Bondu Ramaswamy v. Bangalore Development Authority15 to show that this Court

had  already  expressed  its  concern  about  the

lackadaisical manner in which the land is acquired by

the  State  Government  in  favour  of  the  Bangalore 15  (2010) 7 SCC 129

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Development  Authority  for  housing  scheme  in  the

metropolitan  area  without  conducting  proper  enquiry

about the need of the residents of the area and plights

of the land owners. It was held in the case as under :  “150. Frequent complaints and grievances in regard  to  the  following  five  areas,  with reference  to  the  prevailing  system  of acquisitions  governed  by  Land  Acquisition Act, 1894, requires the urgent attention of the  state  governments  and  development authorities: (i) absence of proper or adequate survey and planning before embarking upon acquisition; (ii)  indiscriminate  use  of  emergency provisions in Section 17 of the LA Act; (iii) notification of areas far larger than what is actually required, for acquisition, and  then  making  arbitrary  deletions  and withdrawals from the acquisitions; (iv)  offer  of  very  low  amount  as compensation by Land Acquisition Collectors, necessitating references to court in almost all cases; (v)  inordinate  delay  in  payment  of compensation; and (vi) absence of any rehabilitatory measures. While  the  plight  of  project  oustees  and landlosers  affected  by  acquisition  for industries  has  been  frequently  highlighted in  the  media,  there  has  been  very  little effort to draw attention to the plight of farmers  affected  by  frequent  acquisitions for urban development.”

XXX           XXX            XXX

156. When BDA prepares a development scheme it is required to conduct an initial survey about the availability and suitability of

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the lands to be acquired. While acquiring 16 villages at a stretch, if in respect of any of the villages, about 30% area of the village is not included in the notification under  Section  4(1)  though  available  for acquisition, and out of the remaining 70% area  which  is  notified,  more  than  half (that is, about 40% of the village area) is deleted when final notification is issued, and  the  acquisition  is  only  of  30%  area which  is  non-contiguous,  it  means  that there was no proper survey or application of  mind  when  formulating  the  development scheme  or  that  the  deletions  were  for extraneous or arbitrary reasons.

157. Inclusion of the land of a person in an acquisition notification, is a traumatic experience for the landowner, particularly if  he  was  eking  out  his  livelihood  from that land. If large areas are notified and then large extents are to be deleted, it breeds  corruption  and  nepotism  among officials.  It  also  creates  hostility, mutual  distrust  and  disharmony  among  the villagers,  dividing  them  on  the  lines  of “those  who  can  influence  and  get  their lands  deleted”  and  “those  who  cannot”. Touts  and  middlemen  flaunting  political connections flourish, extracting money for getting lands deleted. Why subject a large number  of  citizens  to  such  traumatic experience?  Why  not  plan  properly  before embarking upon acquisition process? In this case, out of the four villages included at the  final  stages  of  finalising  the development  scheme,  irregularities  have been  found  at  least  in  regard  to  three villages, thereby emphasising the need for proper planning and survey before embarking upon acquisition.

158. Where  arbitrary  and  unexplained

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deletions and exclusions from acquisition, of large extents of notified lands, render the  acquisitions  meaningless,  or  totally unworkable,  the  court  will  have  no alternative  but  to  quash  the  entire acquisition.  But  where  many  land  losers have accepted the acquisition and received the compensation, and where possession of considerable portions of acquired lands has already  been  taken,  and  development activities have been carried out by laying plots and even making provisional or actual allotments, those factors have to be taken note  of,  while  granting  relief.  The Division  Bench  has  made  an  effort  to protect  the  interests  of  all  parties,  on the  facts  and  circumstances,  by  issuing detailed directions. But implementation of these  directions  may  lead  to  further litigations and complications.”

Section  2  (u)  of  the  Act  of  1973  defines  a  Town

Development Scheme as a scheme formulated to implement

the  developmental  plan.  In  the  instant  case,  the

development plan is the Master Plan of Raipur planning

area. Therefore, the very definition clearly states that

unless master plan allows use of a particular area as

‘residential’, it is not open for the Respondent No.2-

RDA to propose a township or a town development scheme

whose land use is at variance with the one provided in

the development plan.  Till such time as the lands in

question is notified for residential use, the Respondent

No. 2- RDA cannot propose a Town Development scheme for

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the said land.

38. Respondent No.2- RDA is entrusted with a duty to

implement the master plan under Section 38(2) of the Act

of 1973.  The resolution dated 5.11.2009 passed by the

Respondent No. 2-RDA proposing to the State government

to get the land use changed under Section 23A of the Act

in order to implement its township project either by

itself or the CEO, on their own or in a manner that is

inconsistent with the text as well the provisions of the

Act of 1973.  In this regard, this Court has already

laid down the legal principle in the case of Bangalore

Medical Trust v. B.S. Muddappa16, which reads as under:

“49. ….. There is no Section either in the Act nor any rule was placed to demonstrate that  the  Chairman  alone,  as  such,  could exercise the power of the Authority. There is no  whisper  nor  there  is  any  record  to establish that any meeting of the Authority was held regarding alteration of the scheme. In any case the power does not vest in the State Government or the Chief Minister of the State.  The  exercise  of  power  is  further hedged  by  use  of  the  expression,  if  'it appears  to  the  Authority'.  In  legal terminology it visualises prior consideration and  objective  decision.  And  all  this  must have  resulted  in  conclusion  that  the alteration would have been improvement. Not even one was followed. The Chairman could not have acted on his own. Yet without calling any meeting of the authority or any committee

16  (1991) 4 SCC 54

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he sent the letter for converting the site. How  did  it  appear  to  him  that  it  was necessary, is mentioned in the letter dated 21st  April,  because  the  Chief  Minister desired  so.  The  purpose  of  the  Authority taking such a decision is their knowledge of local  conditions  and  what  was  better  for them. That is why participatory exercise is contemplated.  If  any  alteration  in  Scheme could be done by the Chairman and the Chief Minister then Sub-section (4) of Section 19 is rendered otiose. There is no provision in the  Act  for  alteration  in  a  scheme  by converting one site to another, except, of course if it appeared to be improvement. But even that power vested in the Authority not the Government. What should have happened was that the Authority should have applied its mind and must have come to the conclusion that  conversion  of  the  site  reserved  for public  park  into  a  private  nursing  home amounted to an improvement then only it could have exercised the power. But what happened in  fact  was  that  the  application  for allotment of the site was accepted first and the procedural requirements were attempted to be gone through later and that too by the State Govt. which was not authorised to do so. Not only that the Authority did not apply its mind and take any decision if there was any necessity to alter the Scheme but even if it is assumed that the State Govt. could have any role to play, the entire exercise instead of proceeding from below, that is, from the BDA to State Government proceeded in reverse direction, that, from the State Government to the BDA……”

  As  per  the  factual  averments  of  this  case,  the

Respondent No. 2- RDA, without any resolution of the

Board,  on  its  own  motion,  addressed  a  letter  dated

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31.7.2006 and approached the State Government for change

of land use because it had to propose the township in

Tikrapara, Devpuri and Boriakhurd villages. Thereafter,

KVTDS  was  also  proposed,  published,  finalised  and

approved before the land use was changed by the State

Government. Under the provisions of the Act of 1973, the

development plan/ Raipur Master Prevised 2021 that is

prevailing, the Respondent No. 2-  RDA as well as the

State  Government  gave  primacy  to  KVTDS  and  sought

changes  in  the  master  plan  to  suit  KVTDS.  This  is

impermissible in law.  The finding recorded by the High

Court of Chhattisgarh, Bilaspur, in its judgment in this

regard that no finality can be attached to the master

plan is an erroneous finding. Accordingly, we are of the

opinion that the Town Development Scheme which is KVTDS

in the present case, was not prepared in accordance with

Section 50 of the Act of 1973 and we hold that KVTDS is

ultra vires to the Act of 1973.

Answer to Point No. 3  39. Though we have answered point no. 2 in favour of the

appellant, we intend to mention other grounds too, which

render KVTDS as illegal. The learned senior counsel on

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behalf of the appellants contended that in the absence

of a zonal plan, a Town Development Scheme cannot be

framed  by  Respondent  No.  2-  RDA,  and  therefore,  the

acquisition proceedings of the land of the appellants

cannot be allowed to sustain.

   The town development scheme is always subservient to

the master plan as well as the zonal plan, as provided

under Section 17 of the Act of 1973, which reads as

under :-  

“Section 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 (No. 19 of 1995) in which the planning area is situated......”

Master  plan  falls  within  the  category  of  broad

development plans and is prepared by 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  development plan, or thereafter if so required by the

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State Government shall, within the next six months of such requisition, prepare a Zoning Plan”

Further, Section 21 of the Act reads thus:

Section  21:  Contents  of  zoning  plan. The zoning plan shall “enlarge” the details of the land use as indicated in the development plan....

(emphasis laid by the Court)

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.  

   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.

   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. The Respondent No. 2- RDA

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on  the  other  hand,  has  taken  the  following  stand  in

their common counter affidavit dated 23.11.2011 filed in

the writ petition proceedings:

“That, thus, earlier the Master Plan, 2021 is modified as per scheme under Section 23A or the scheme  is  modified  as  per  Master  Plan  under Section 52(1) (b) of the Act, the net results remains that there is no violation of Master Plan,  2021  and  therefore,  the  allegations  of the  petitioner  that  the  scheme  has  been formulated  and  finalised  in  violation  of  the Master Plan, 2021 is incorrect.”

Therefore, in the absence of a zonal plan in place, the

Respondent No. 2-RDA has skipped the legal mandate in

place for preparation of a Town Development Scheme.

40. The  importance  of  zonal  planning  lies  in  its

distinguished  characteristic  which  lays  down  with

sufficient particularity the use to which a particular

piece of land could be put. The object and purpose of

the  1973  Act  itself  foresees  that  zonal  plan  is

necessary  for  implementation  of  a  Town  Development

Scheme. The preamble of the Act clearly discloses that a

Town  Development  Scheme  is  at  best  a  vehicle  to

implement  the  Development  Plan  and  Zonal  Plan.  The

object and purpose of the Act reads thus:

“An Act to make provision for planning and development and use of land; to make better

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provision  for  the  preparation  of development plans and zoning plans with a view to ensuring town planning schemes are made in a proper manner and their execution is made effective to,…..”

(emphasis laid by this Court)   Therefore,  the  Object  and  Purpose  of  the  Act  also

provides that a Town Development Scheme can be prepared

in the presence of a Zonal Plan which in turn has to be

prepared for the implementation of the Development Plan.

41. In fact, Section 2(g) of the Act of 1973 defines

“development  plan”  as  including  “a  zonal  plan”.

Therefore, unless a Zonal Plan and also a development

plan is prepared, a Town Development Scheme cannot be

proposed.  The provisions of Sections 49 and 50 of the

Act of 1973 categorically provide for “Development Plan”

to mean “master plan” as well as “Zonal Plan”.

42. In the case in hand, the KVTDS has been prepared in

the  absence  of  a  Zonal  Plan.  It  is  not  possible  to

define  the  utilization  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 No. 2- RDA is not permitted to either

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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 No. 1- State Government under

Section 20 of the Act of 1973. 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.

43. 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  Mrs.  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”.

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44. The letter of Respondent No. 2-RDA dated 20.07.2009

addressed to Respondent No. 1- State Government seeking

permission  for  the  Town  Development  Scheme  in  the

enhanced  area  itself  highlights  the  importance  of

planning  at  Zonal  level  to  stop  illegal  development.

Having regard to the provisions of Sections 17, 19, 20,

21 and 49 of the Act of 1973, the relationship between

the  scope  of  Development  Plan,  Zoning  Plan  and  Town

Development Scheme can be well understood and in view of

the  aforesaid  provisions  and  the  factual  position  in

relation to the KVTDS, unless a Zoning Plan exists, it

is not possible for the Planning Authority to ascertain

as to which area is to be used for which purpose. A

development authority under Section 38(2) of the 1973

Act cannot, in the name of planning and implementing a

Town Development Scheme, usurp the power of the local

authorities  and  define  the  land  use  under  the  Town

Development Scheme and subsequently, seek changes in the

Master Plan to bring it in conformity with the KVTDS. In

support  of  this  contention,  reliance  has  been  placed

upon  by  the  learned  senior  counsel  on  behalf  of  the

appellants on the judgment of this Court in  Chairman,

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Indore  Vikas  Pradhikaran  case  mentioned  supra,  the

relevant portion of which is quoted hereunder :

“37. When a planning area is defined, the same  envisages  preparation  of  development plan and the manner in which the existing land use is to be implemented. A development plan in some statutes is also known as a master  plan.  It  lays  down  the  broad objectives  and  parameters  wherewith  the development plan is to deal with. It also lays down the geographical splitting giving rise  to  preparation  and  finalization  of zonal plans. The zonal plans contain more detailed and specific maters than the master plan or the development plan. Town planning scheme  or  lay-out  plan  contains  further details on plot-wise basis. It may provide for the manner in which each plot shall be dealt with as also the matter relating to regulations of development.

     XXX        XXX         XXX 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.        XXX        XXX         XXX 75.  The  purpose  of  declaring  the  intent under  Section  50(1)  of  the  Act  is  to implement a development plan. Section 53 of the Act freezing any other development is an incidence arising consequent to the purpose, which purpose is to implement a development plan. If the purpose of declaring such an intention  is  merely  to  bring  into  play Section  53,  and  thereby  freeze  all development, it would amount to exercise of the power of Section 50(1) for a collateral

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purpose,  i.e.,  freezing  of  development rather than implementation of a development plan. The collateral purpose also will be to indirectly get over the fact that an owner of  land  pending  finalization  of  a development plan has all attendant rights of ownership  subject  to  the  restraints  under Section 16. If the declaration of intent to formulate a town development scheme is to get over Section 16 and freeze development activities under Section 53, it would amount to  exercise  of  power  for  a  collateral purpose. 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 finalized it would have no statutory or legal force and the land use as existing prior thereto with the rights of usage of the land arising therefrom would continue. 77. To accept that it is open to the town development  authority  to  declare  an intention  to  formulate  a  town  development scheme even without a development plan and ipso facto bring into play a freeze on usage of the land under Section 53 would lead to complete  misuse  of  powers  and  arbitrary exercise  thereof  depriving  the  citizen  of his right to use the land subject to the permitted land use and laws relating to the manner of usage thereof. This would be an unlawful deprivation of the citizen's right to property which right includes within it

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the right to use the property in accordance with the law as it stands at such time. To illustrate the absurdity to which such an interpretation  could  lead  it  would  then become  open  to  the  town  development authority to notify an intent to formulate a town development scheme even in the absence of a development plan, freeze all usage of the property by a owner thereof by virtue of Section  53  of  the  Act,  and  should  no development  plan  be  finalized  within  3 years,  such  scheme  would  lapse  and  the authority  thereupon  would  merely  notify  a fresh intent to formulate a town development scheme and once again freeze the usage of the  land  for  another  three  years  and continue the same ad infinitum thereby in effect completely depriving the citizen of the right to use his property which was in a manner otherwise permitted under law as it stands. 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.         XXX        XXX         XXX 87. An area conceived of under the Act, as noticed hereinbefore, consists of both plan area and non-plan area. Development of plan area may be in phases. A master plan may be followed by a zonal plan and a zonal plan may  be  followed  by  a  town  development

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scheme.”

45. Further, the learned senior counsel on behalf of the

appellants  have  rightly  placed  reliance  upon  the

principle of Constitutional morality as explained by Dr.

B.  R.  Ambedkar  to  the  Constituent  Assembly  on  4th

November  1948.   The  relevant  portion  of  which  is

extracted hereunder:

“While  everybody  recognizes  the  necessity of the diffusion of Constitutional morality for  the  peaceful  working  of  a  democratic Constitution,  there  are  two  things interconnected  with  it  which  are  not, unfortunately, generally recognized. One is that the form of administration has a close connection  with  the  form  of  the Constitution.  The  form  of  the administration must be appropriate to and in  the  same  sense  as  the  form  of  the Constitution.  The  other  is  that  it  is perfectly  possible  to  pervert  the Constitution, without changing its form by merely  changing  the  form  of  the administration and to make it inconsistent and  opposed  to  the  spirit  of  the Constitution.”  

46.  In the light of the facts and circumstances of the

case,  the  legal  contentions  urged  before  us,  the

provisions of the Act and also in the light of the legal

principles already laid down by this Court, we are of

the opinion that Respondent No. 2- RDA could not have

formulated KVTDS-for Raipur without a Zoning Plan there

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in place. Accordingly, we answer this point in favour of

the appellants.

Answer to Point No. 4 47. Section 50 (5) of the Act of 1973, read with Section

50 (6) of the Act of 1973, provides for constitution of

a committee which shall determine the various aspects of

a Town Development Scheme such as its viability, cost

effect etc. Section 50(6) of the Act provides that a

committee  constituted  under  section  50(5)  of  the  Act

shall consider the objections and suggestions and give

hearing  to  any  person  desirous  of  being  heard.

Thereafter, the committee shall submit its report to the

Town and Country Development Authority and, is required

to submit its proposal on these aspects:

ι.   Define and demarcate areas allotted or reserved for public purpose;

ιι. Demarcate the reconstituted plots; ιιι. Evaluate value of original plots and reconstituted

plots; ιϖ. Determine  whether  the  areas  marked  for  public

purpose are wholly or partially beneficial to the residents;

ϖ.   Estimate the compensation or contribution from beneficiaries of the scheme;

ϖι. Evaluate increment in value of the reconstituted plot for calculating incremental value;

ϖιι. Evaluate  the  reduction  in  value  and  assess compensation payable therefor;

48. The committee, in the case, in hand, has recorded in

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its report only on the first four aspects and has held

the last three aspects as not applicable to the scheme

without  assigning  any  valid  reasons.   Therefore,  in

providing this report, the committee has violated the

mandatory  provision  of  providing  a  complete  report

before  acquiring  land  from  landowners  which  often

results in loss of livelihood for poor agriculturists.

This aspect of loss of livelihood has been noted by this

Court in the case of Bondu Ramaswamy mentioned supra.

49. The  learned  single  judge  of  the  High  Court  of

Chhattisgarh, Bilaspur, in his judgment, has held that

the aforesaid three aspects are not applicable in the

present case for the reason that the Respondent No. 1-

State  government  has  decided  not  to  seek  payment  of

incremental cost/contribution cost from the land-holder

on account of development of area while prescribing the

size  of  the  reconstituted  plots  for  which  respective

landholders would be entitled.

50. The said view of the learned single Judge has been

erroneously upheld by the Division Bench of the High

Court of Chhattisgarh, Bilaspur.  The said view taken by

both the learned single judge and Division Bench of the

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High Court of Chhattisgarh, Bilaspur, is contrary to the

provision of the Act of 1973, since the High Court has

not noticed in arriving at the aforementioned conclusion

that the committee was not adhering to the mandatory

provisions with regard to development scheme. Therefore,

the scheme is vitiated in law for lack of compliance

with the provisions of the Act of 1973.  The manner in

which the computation of increment in the value of the

reconstituted plot has been arrived at, is vague.

51.  The affidavit of RDA dated 23.11.2011 by way of its

reply to the writ petitions, has taken the following

stand:

“However, finally the Committee came to the conclusion that as the scheme is to be made in participation with, the general public, therefore,  neither  any  charge  would  be levied on the public under any head nor any compensation would be payable to any of the members of public on account of reduction of his plot size or value… However, while finally  making  its  recommendation  the committee on internal page No. 114 and 115 of  the  Annexure categorically  recommended that the provisions of sub-section (v) (vi) and (vii) of the Section 50 (6) would not be applicable on the scheme.”

From the above averments of the Respondent No. 2- RDA in

its affidavit by way of reply, it is evident that it has

unilaterally decided to make the mandatory provisions of

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Section 50(6) (v) (vi) and (vii) of the Act of 1973,

inapplicable to the scheme without providing any reason

for the same.  It could not have stated so, as this

aspect is no more res integra. This court has already

taken the view that the provisions of Section 50 are

mandatory in nature in the case of  Ahmedabad Municipal

Corpn. v. Ahmedabad Green Belt Khedut Mandal17, which will

be discussed at appropriate place in this judgment.

52. Further,  there  is  no  board  resolution  for  the

village Dumartarai, and in any event, Board resolution

of Respondent No. 2- RDA does not amount to intention to

declare  under  Section  50  (1)  to  develop  a  town

development  scheme  in  terms  of  the  Government  Order

dated 18.11.1999.  The Respondent No. 2- RDA, on the

other  hand,  is  required  to  seek  permission  from

Respondent  No.  1-  State  Government  to  publish  the

intention in the official gazette.  The RDA under the

aforesaid  provision  was  required  to  declare  its

intention to the public at large. 53. In the instant case, the Respondent No. 1- State

Government granted permission to Respondent No. 2- RDA

to publish its intention under Section 50(2)of the Act

17  (2014) 7 SCC 357

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of  1973,   on  25.1.2008  for  village  Dunda  alone.  It

published  its  intention  under  the  aforesaid  provision

for the villages of Dunda as well as Tikrapara pursuant

to the Board Resolution by circulations dated 12.5.2009

and 5.6.2009.  Afterwards the Respondent No. 1- State

Government  granted  permission  dated  10.8.2009  for

increasing the area of the Scheme to 2300 acres.  The

Board  of  the  RDA  issued  another  resolution  by

circulation  dated  20.8.2009  for  inclusion  of  three

villages namely Boriakhurd, Dumartarai and Devpuri.  The

Board Resolution is only for publication of the scheme

in the gazette and the same was for KVTDS Scheme No. 5

and  not  KVTDS  Scheme  No.4.  Pursuant  to  the  Board

Resolution dated 20.08.2009, a declaration of intention

was published for amended scheme on 4.9.2009. The board

resolution is merely for publication of the scheme in

the official gazette.  There is no provision under the

1973 Act to issue declaration only in so far as amended

portion  is  concerned.  Thus,  the  inclusion  of  village

Tikrapara  is  not  in  accordance  with  the  procedure

prescribed under the Act and the entire process had to

be commenced de novo.

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54. The learned senior counsel for the appellants have

rightly  pointed  out  the  procedure  of  passing  a

resolution, by placing reliance upon the provisions of

Section  289  of  the  Company’s  Act,  1956  which

specifically  allows  resolution  by  circulation  in  the

following terms:  

“289. Passing of resolutions by circulation. No resolution shall be deemed to have been duly passed by the Board or by a committee thereof by circulation, unless the resolution has been circulated in draft, together with the  necessary  papers,  if  any,  to  all  the directors,  or  to  all  the  members  of  the committee, then in India (not being less in number than the quorum fixed for a meeting of the Board or committee, as the case may be), and  to  all  other  directors  or  members  at their usual address in India, and has been approved by such of the directors as are then in India, or by a majority of such of them, as are entitled to vote on the Resolution.”

Thus, since there is no declaration of intent preceding

publication in the gazette, Board Resolutions which are

not declared to the public in the matter prescribed under

the Act of 1973, and same do not amount to declaration.

The Act does not empower the Respondent No. 2- RDA to

reconstitute plots.  Even if any authority can be read

into it, it has to be limited to public utilities.

55. The provision under Section 49 of the Act of 1973

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only allows a Town Development Scheme to make provision

for  reconstruction  of  plots  for  the  purpose  of

buildings, roads, drains, sewage lines and other similar

amenities. It may be noted that the Maharashtra Regional

and  Town  Planning  Act,  1966  and  the  Gujarat  Town

Planning  and  Urban  Development  Act,  1976  specifically

provide  for  reconstituted  plots  and  the  Acts  also

provided the procedure to be followed for the same under

the  respective  statutes.   Section  65  (1)  of  the

Maharashtra Act and Section 45 (1) of the Gujarat Act

are in pari material, which are reproduced hereunder: “Section 65 (1) of the Maharashtra Act:  In the  draft  scheme,  the  size  and  shape  of every  reconstituted  plot  shall  be determined, so far as may be, to render it suitable for building purposes, and where a plot is already built upon, to ensure that the buildings as far as possible comply with the provisions of the scheme as regards open spaces.”

Section 45 (1) of Gujarat Act: In the draft scheme referred to in Section 44, the size and shape of every plot shall be determined, so far as may be, to render it suitable for building  purposes  and  where  the  plot  is already  built  upon,  to  ensure  that  the building, as far as possible, complies with the provisions of the scheme as regards open spaces”

Further Section 49 (viii) of the Act of 1973 empowers RDA

to  make  provision  for  reconstitution,  which  reads  as

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under:

“49.  Town  Development  Scheme  –  A  town development scheme may make provision for any of the following matters:     ……….

(viii)  Re-constitution  of  plots  for the  purpose  of  buildings,  road, drains, sewage lines and other similar amenities....”

56. From a careful reading of the aforesaid conclusions,

it is evident that the board conferred power upon the

Respondent  No.  2-RDA  to  make  provision  for

reconstitution and not for reconstruction per se.  In

any  event,  such  power  to  make  provision  for

reconstitution  is  limited  to  certain  specified  public

purposes, which does not include general housing scheme.

57. There  is  conspicuous  absence  of  any  empowering

mechanism under the Act of 1973 for the above purpose

and no authority has been vested under the provision of

the Act applicable to Chhattisgarh, to adjust rights of

parties in the land. In view of the aforesaid provision,

mere prescription or the scope of the activity in the

Town Development Scheme under Section 49 of the Act will

not ipso facto confer the power upon Respondent No. 2-

RDA to alter rights of landowners in their properties.

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This unique anomaly under the Act may be contrasted with

the  Gujarat  Act  and  the  Maharashtra  Act  wherein  the

office  of  the  Town  Planning  Officer  has  been

specifically created for the said purpose.

   Further, under Section 52 of the Gujarat Act the town

planning officer carries out the task of reconstitution

of lands. The provision reads as under:

“52(1)  In  a  preliminary  scheme,  the  Town Planning Officer shall:- (i) After giving notice in the prescribed manner  and  in  the  prescribed  form  to  the persons  affected  by  the  scheme,  define  and demarcate the areas allotted to, or reserved for, any public purpose, or for the purpose of the appropriate authority and the final plots; (ii) After  giving  notice  as  aforesaid, determine in a case in which a final plot is to  be  allotted  to  persons  in  ownership  in common, the share of such persons; (iii) Provide  for  the  total  or  the  partial transfer of any right in an original plot to a final plot or provide for the transfer of any right in an original plot in accordance with the provisions of Section 81; (iv) Determine a period within which works provided in the scheme shall be completed by the appropriate authority.”

Also, Section 81 of the Gujarat Town Planning and Urban

Development Act reads as under:

“Any right in an original plot which in the opinion  of  the  Town  Planning  Officer  is capable  of  being  transferred  wholly  or  in part, without prejudice to the making of a town planning scheme, to a final plot shall be

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transferred and any right in an original plot which  in  the  opinion  of  the  Town  Planning Officer is not capable of being so transferred shall be extinguished: Provided that an agricultural lease shall not be transferred from an original plot to final plot without the consent of all the parties to such lease.”

The  Maharashtra  Act  of  1966  confer  this  right  on  an

Arbitrator appointed by the State Government. Section 72

(3) (xiii) of the Act reads as under:

“72  (3)in  accordance  with  prescribed procedure, every Arbitrator shall,- …………. (xiii)  provide  for  the  total  or  partial transfer of any right in the original plot to a final plot or provide for the execution of any right in an original plot in accordance with the provisions contained in section 101;”

58. In the light of the provisions above mentioned, it

is clear that under both the town planning legislations

for Gujarat and Maharashtra States, a specific authority

has  been  statutorily  authorized  to  alter  rights  in

property  and  to  reconstitute  plots,  whereas  no  such

authority has been so empowered under the Chhattisgarh

Town Planning Act, 1973.  Therefore, without an official

amendment to the Chhattisgarh Act and without following

the mandatory procedure, no reconstitution of land under

the Town Development Scheme can take place.

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59. To further establish this point, reliance has been

placed by the learned senior counsel on behalf of the

appellants on the following judgment of this Court in

Ahmedabad  Municipal  Corpn.  v. Ahmedabad Green  Belt Khedut Mandal (supra), wherein it was held as under :  

“27. The aforesaid provisions read conjointly give a clear picture that the scheme is just like  the  consolidation  proceedings  as  the land, belonging to various persons, covered by the scheme first be put into a pool and then  the  land  be  allocated  for  different purposes and, in such a way, after having all deductions for the purpose of either by way of  acquisition  of  land  under  the  Land Acquisition  Act,  1894  (hereinafter  referred to as “the 1894 Act”) or the land taken under the provisions of Section 40(3)(jj)(a) of the 1976 Act, the loss and profit of individual tenure-holder  is  to  be  calculated.  After assessing  the  market  value  on  the  date  of declaration  of  the  intention  to  frame  a scheme and the value of the property after making  all  these  deductions,  adjustments, improvements,  etc.  and,  therefore,  if  a person has suffered any loss, his loss is to be made good from the funds of the scheme and if a person has gained an amount equivalent to net gain, is to be recovered from him.

The case mentioned supra, further reads: “40. As we have explained hereinabove that the town planning scheme provides for pooling the entire land covered by the scheme and thereafter reshuffling and reconstituting of plots, the market value of the original plots and final plots is to be assessed and the authority has to determine as to whether a

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landowner  has  suffered  some  injury  or  has gained from such process. Reconstitution of plots is permissible as provided under the scheme of the Act as is evident from cogent reading of Sections 45(2)(a), (b), (c) and Section 52(1)(iii) in accordance with Section 81 of the 1976 Act. By reconstitution of the plots,  if  anybody  suffers  injury,  the statutory provisions provide for compensation under Section 67(b) read with Section 80 of the  1976  Act.  By  this  reconstitution  and readjustment of plots, there is no vesting of land in the local authority and therefore, the Act provides for payment of non-monetary compensation and  such  a  mode  has  been approved by the Constitution Bench of this Court  in  Shantilal Mangaldas, wherein this Court has held that  when the scheme comes into force all rights in the original plots are  extinguished,  and  simultaneously therewith  ownership  springs  in  the reconstituted  plots.  It  does  not  predicate ownership  of  the  plots  in  the  local authority, and no process—actual or notional— of  transfer  is  contemplated  in  that appropriation.  Under  clause  (a) of Section 53, vesting of land in local authority takes place  only  on  commencement  of  scheme  into force. The concept that lands vest in a local authority when the intention to make a scheme is notified, is against the plain intendment of the Act. Even steps taken by the State do not involve application of the doctrine of eminent domain.”

60. It  is  further  contended  by  the  learned  senior

counsel  on  behalf  of  the  appellants  that  apart  from

this,  the  allotment  of  reconstituted  plots  to  the

original land owners is being done in an arbitrary and

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discriminatory manner and therefore the same is wholly

unsustainable in law. It was further contended that the

Respondent  No.1-State  government  arbitrarily  excluded

and included lands in the scheme without any rational

basis or explanation for initial proposal of the Town

Development Scheme on land measuring 416.93 acres and

there  is  neither  rational  explanation  or  basis  for

subsequent  addition  of  another  1900  acres  of  land

included pursuant to RDA’s Resolution dated 20.7.2009.

Barring  one  acre  land  of  Jalaram  Cooperative  Housing

Society, which was originally included in the earlier

sanctioned area of 416.93 acres, the entire land of the

appellants  have  been  affected  by  the  enhancement  of

acquisition of area to about 2300 acres of land.   The

villages of Tikrapara and Dumartarai were not originally

included in the first phase of development in the Raipur

Master Plan (Revised) 2021. 61.  The location of the land of the appellants which is

also shown in the map/plan annexed to the Convenience

Compilation is produced by the appellants, stating that-

a)The total 22 acres of land of which about 11 acres of land is of Rajendra Shankar Shukla and family  of  Village  Dumartarai  is  an  island, separated by distance of 1.5 kms from the main

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site.   Thus, this piece of 11 acres of land is separate  from  the  rest  of  land  parcel  being developed,  and  there  is  no  reason  for  its inclusion except malice in law.

b)Land of petitioner’s Chinmay Builders and Jalaram Cooperative Housing Society of village Tikrapara is on the fringe of their existing colonies, and is therefore, sufficiently developed.   

c)Land  of  petitioner’s  Chhatri  Family  and petitioner Vijay Rajani and family is on the main orad and is sufficiently developed on account of proximity to the main road.

d)Only  a  piece  of  land  jointly  owned  by  Vijay Rajani,  Rakesh  Amrani  and  Pradeep  Prithwani admeasuring about 1 acres is in the centre of the township.

 62.  It  was  further  argued  that  draft  Scheme  was

published on 20.11.2009 which included vast tracts of

agricultural land as well as abadi areas.  However, the

final scheme published on 16.07.2010 was for 1600 acres.

It is submitted by the learned senior counsel on behalf

of the appellants that firstly the inclusion of 1900

acres  of  land  was  approved  on  10.08.2009  without

following the procedure and conducting the survey.  But

after harassing the land owners, the Respondent No. 2-

RDA excluded 700 acres of land, which were as under:

(a) Land notified for agricultural use under the Master Plan (Revised) 2021  

(b) Land carrying construction over them, and (c) Land of private colonizers whose layout

had been approved irrespective of whether construction has been carried out or not in the permission dated 25.01.2008, the

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State Government had itself directed that lands  with  trees  and  construction  will not  be  included,  and  therefore,  the question  of  having  such  a  huge  area including constructed land did not arise for its consideration.    

As a consequence of the above said exclusion, portions

of  land  belonging  to  the  appellants  in  Civil  Appeal

arising out of SLP (C) No. 30942 of 2014 measuring about

11 acres was separated from the main proposed township

by  a  distance  of  about  1.5  kms.   Between  these  two

chunks of land, there lies a densely populated area.

Apparently, there are no means to provide services to

the  separated  land  other  than  by  spending

disproportionate  costs  on  separate  infrastructural

facilities  such  as  sub-station,  sewerage  treatment

plant, water pumping station, separate water pipeline,

separate sewerage plant etc.  Therefore, it is contended

that  there  will  be  no  adverse  implication  for  the

proposed township if lands belonging to the appellants

in  the  above  mentioned  appeal  are  excluded  from  the

KVTDS.

63.  Further,  the  lands  of  other  appellants  namely,

Vijay  Rajani  and  family,  Jalaram  Cooperative  Housing

Society, Bulamal Chhatri and Chinmay Developers are also

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on the fringe of the township and as such there is no

adverse  implication  for  the  proposed  township  if  the

said land of the appellants is excluded. In support of

the  aforesaid  reasons,  the  learned  senior  counsel  on

behalf  of  the  appellants  has  rightly  placed  reliance

upon  the  following  decisions  of  this  Court  in Bondu

Ramaswamy  v. Bangalore  Development  Authority,  (supra)

wherein it was held as under:

“134.  Therefore, if a development authority having  acquired  a  large  tract  of  land withdraws  or  deletes  huge  chunks,  the development  by  the  development  authority will  resemble  haphazard  developments  by unscrupulous private developers rather than being  a  planned  and  orderly  development expected  from  a  Development  Authority. therefore  when  a  large  layout  is  being planned, the development authorities should exercise care and caution in deleting large number  of  pockets/chunks  of  land  in  the middle of the proposed layout. There is no point in proposing a planned layout but then deleting  various  portions  of  land  in  the middle merely on the ground that there is a small structure of 100 sq.ft or 200 sq.ft. which  may  be  authorized  or  unauthorized. Such  deletions  make  a  mockery  of development.  Further  such deletions/exclusions  encourage  corruption and favouritism and bring discontent among those who are not favourably treated.

135. The complaint by appellants is that in the  proposed  Arkavathi  layout,  rich  and powerful  with  "connections"  and  "money power" were able to get their lands, (even

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vacant  lands)  released,  by  showing  some imaginary structure or by putting up some unauthorised structure overnight. Though we do  not  propose  to  go  into  motives,  the concurrent  finding  by  the  learned  Single Judge and Division Bench is that there are arbitrary  unexplained  deletions.  While  we may  not  comment  on  policy,  it  is  obvious that  deletion  from  proposed  acquisition should be only in regard to areas which are already well developed in a planned manner.

136.  Sporadic  small  unauthorised constructions  in  unauthorised  colonies/ layouts, are not to be deleted as the very purpose  of  acquisition  for  planned development  is  to  avoid  such  unauthorised development. If hardship is the reason for such deletion, the appropriate course is to give preference to the land/plot owners in making allotments and help them to resettle and  not  to  continue  the  illegal  and haphazard pockets merely on the ground that some  temporary  structure  or  a  dilapidated structure  existed  therein.  A  development authority  should  either  provide  orderly development  or  should  stay  away  from development. It cannot act like unscrupulous private  developers//colonisers  attempting development of small bits of land with only profit  motive.  When  we  refer  to  private developers/colonisers by way of comparison, our  intention  is  not  to  deprecate  all private developers/colonisers. We are aware that  several  private  developers/colonisers provide  large,  well  planned  authorized developments, some of which are even better than  developments  by  development authorities.  What  is  discouraged  and deprecated  is  small  unauthorized  layouts without any basic amenities. Be that as it may.

137. What do we say about a `development',

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where with reference to the total extent of a village, one-third is not notified at all, and more than half is deleted from proposed acquisition of the remaining two-third and only the remaining about 20% to 30% area is acquired, that too not contiguously, but in different parcels and pockets. What can be done with such acquisition? Can it be used for  orderly  development?  Can  it  avoid haphazard and irregular growth? The power of deletion  and  withdrawal  unless  exercised with  responsibility  and  fairly  and reasonably,  will  play  havoc  with  orderly development,  will  add  to  haphazard  and irregular growth and create discontent among sections of society who were not fortunate to have their lands deleted.”

The above decision holds true in the present case in the

light of the fact that vast amount of tracts have been

deleted subsequently without the respondents assigning

any reason for the same. As a consequence, KVTDS has

turned into disconnected pockets of acquired land and

land deleted subsequently after acquisition.  

64.  The  functioning  of  the  Committee  under  Section

50(5) of the Act of 1973 is dissatisfactory and required

the  process  to  be  followed  afresh.   The  committee

constituted under the aforesaid Act to hear objections

of  the  desirous  parties,  was  a  mere  eye  wash.  The

committee  rejected  the  objections  submitted  by  the

appellants without providing any reasons for the same

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and not even providing any hearing opportunities to put

forth  their  objections  before  the  said  Committee.

Therefore, the recommendations of the Committee did not

carry any weight. This action of the State Government is

vitiated in law and therefore liable to be set aside. 65. It  can  be  asserted  from  the  evidence  on  record

produced before us that the Committee constituted under

Section 50(5) of the Act, heard objections of the land

owners from 25.01.2010 to 2.6.2010.  At the same time,

the Respondent No. 2- RDA proposed change of land use on

15.4.2010 and 20.5.2010 and even the lay-out plan was

also prepared and approved on 26.5.2010. This shows that

the  hearing  and  consideration  of  the  land  owner’s

objections  was  only  a  sham.  The  committee  had

pre-decided about the plan and was hearing objections of

the land owners only as a formality procedure. Clearly,

when  the  land  plan  was  prepared  and  approved  on

26.5.2010, the hearing of objections till 2.6.2010 was

immaterial. 66. The committee took decision to exclude agricultural

land  which  was  formally  taken  on  22.6.2010  after

acceptance  of  the  report  of  the  Committee  dated

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8.6.2010.  But  even  before  this,  vide  letter  dated

15.4.2010, CEO of the Respondent No. 2- RDA had made it

clear to the Respondent No. 1- State Government  that

agricultural land will be  excluded.  

The committee constituted under Section 50(5) was headed

by CEO of Respondent No. 2- RDA who himself proposed

inclusion  of  1900  acres  of  land  vide  letter  dated

20.7.2009. This affects the rights of the appellants.

For this reason also, they did not receive fair hearing

from the Committee. The recommendations of the committee

were considered by the Board of Directors of Respondent

No. 2- RDA on 21.6.2010. While the committee was hearing

the objections, there was no freezing of land use and

Respondent No. 2- RDA kept on proposing change in land

use.  This  affected  the  statutory  rights  of  the  land

owners who were entitled to fair hearing against the

acquisition of land.

67. In the case of  Raghbir Singh Sehrawat  v. State of

Haryana18, held as under:  

“40. Though  it  is  neither  possible  nor desirable  to  make  a  list  of  the  grounds  on which the landowner can persuade the Collector to  make  recommendations  against  the  proposed acquisition of land, but what is important is

18  (2012) 1 SCC 792

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that  the  Collector  should  give  a  fair opportunity  of  hearing  to  the  objector  and objectively  consider  his  plea  against  the acquisition of land. Only thereafter, he should make recommendations supported by brief reasons as to why the particular piece of land should or should not be acquired and whether or not the plea put forward by the objector merits acceptance. In other words, the recommendations made by the Collector must reflect objective application of mind to the objections filed by the landowners and other interested persons.

Further, in the case of Indore Development Authority v.  

Madan Lal19, it was held as under:  

“10. We do not think that the Development Authority  was  justified  in  following  a short  cut  in  this  case.  The  procedure followed under the Trust Act could not be sufficient  to  dispense  with  all  the requirements  of  Section  50  of  the Adhiniyam.  As  earlier  noticed  that Section  50  of  the  Adhiniyam  provides procedure for preparation and approval of scheme for development. After preparing a draft  scheme,  the  Development  Authority must  invite  objections  and  suggestions from  the  public.  There  must  be  due consideration  of  the  objections  and suggestions received in the light of the Master Plan of Indore. Indeed, the public must also have an opportunity to examine the  scheme  and  file  objections  in  the light  of  the  Master  Plan  if  the Development Authority wants to adopt the scheme. Since the scheme in question was not  an approved  scheme under  the Trust Act, the Development Authority could not have  dispensed  with  the  procedure prescribed  under  Section  50  of  the Adhiniyam.”

19  (1990) 2 SCC 334

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Therefore, in the light of the facts and circumstances

of the case and the legal principles laid down by this

Court, we are of the opinion that reconstitution of plot

for  the  purpose  of  town  development  scheme  is

permissible  for  public  purpose  only  and  that  too  by

following  the  legal  procedure  of  publication  by  the

authority in gazette about its intent to acquire land.

In the absence of the same, and also when the purpose

for reconstitution of land is not for public purpose,

such reconstitution of land is impermissible under the

Act. Therefore, we answer this point in favour of the

appellants that the respondent No.2-RDA could not have

reconstituted  plot  for  any  other  purpose  other  than

public purpose.

Answer to Point No. 5  68. It has been argued by the learned senior counsel on

behalf of the appellants that taking away land located

in prime location and giving away land anywhere as per

the discretion of Respondent No. 2- RDA, that too, to

the extent of mere 35% of the area, is constitutionally

impermissible.  Against  this  contention  raised  by  the

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learned senior counsel for the appellants, the learned

senior  counsel  for  the  the  Respondent  No.  1-  State

Government as well as the High Court of Chhattisgarh,

relied upon the decision of this Court in the case of

State of Gujarat  v. Shantilal Mangaldas and Ors.20, to

hold that taking away land and giving back 35% developed

land in return, is in accordance with the Constitution.

On  this  aspect,  we  are  inclined  to  rely  upon  the

decision  of  this  court  in  His  Holiness  Kesavananda

Bharathi  v. State  of  Kerala21 which  laid  down  the

subsequent  development  on  the  jurisprudence  of

compensation and overruled the decision of Shantilal in

the process. It was held in the case of  Kesavananda

Bharati v. State of Kerala as under:  

“584. The later decisions had continued to uphold the concept of “compensation” i.e. just equivalent of the value of the property acquired in spite of the amendments made in 1955. In  State of Gujarat v.  Shantilal  Mangaldas  and Others the  decision  in  Metal Corporation  of  India,  was  overruled which itself was virtually overruled by R.C.  Cooper v.  Union  of  India. According  to  the  Advocate-General  of Maharashtra,  if  Shantilal  Mangaldas case, had not been overruled by  R.C.

20  AIR 1969 SC 634 21  (1973) 4 SCC 225

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Cooper v.  Union of India, there would have  been  no  necessity  of  amending Article 31(2). ……………….   

1744.  In  the  Bank  Nationalisation case,  the  majority  decision  virtually overruled  the  decision  in  Gujarat v. Shantilal. The majority was of the view that  even  after  the  Fourth  Amendment ‘compensation’ meant “the equivalent in terms  of  money  of  the  property compulsorily  acquired”  according  to “relevant principles” which principles must  be  appropriate  to  the determination  or  compensation  for  the particular class of property sought to be acquired.”

Since compensation for acquisition of land need to be

reasonable and adequate in the interest of justice, we

rely  upon  the  decision  of  Kesavananda  Bharathi case

(supra) to hold that returning 35% of land in lieu of

acquisition  is  constitutionally  impermissible.  This  is

also because the ‘development’ which occurs due to the

implementation of the Town Development Scheme accrues the

benefit to  everyone.  In  the  same  way,  the  appellants

whose  land  has  been  acquired  and  proposed  to  be

developed, would have gained from the development, if at

all, as a member of the community gaining from the town

development scheme and not in his individual capacity.

When the compensation for land acquisition is determined,

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the price of the land on the date of the declaration of

intention of acquisition is taken into consideration and

not subsequent development after acquisition since the

development is not connected to acquisition. In the same

manner,  if  the  land  is  reconstituted  in  plots  for

distribution to the Economically Weaker Sections of the

community or other public purposes, the same cannot be

done by arbitrarily depriving the land owners of their

Constitutional rights guaranteed under Article 300 A of

the  Constitution  of  India.  They  are  entitled  for  the

compensation  from  the  State  Government.  The  State

Government  on  the  other  hand,  cannot  involuntarily

acquire land and impose developmental charges in the same

breath.  

69. We come to this conclusion further on the ground

that 35% figure was arrived at by Respondent No. 2- RDA

while allocating reconstituted land to the appellants,

without any valid form of calculation arrived at by the

respondents. This action of the respondents is arbitrary

also because the percentage of reconstituted land to be

returned to the land owners vary from 35% to 58% for

large plot holders and small plot holders. Also, from

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the  letter  dated  20.7.2009,  it  is  evident  that

Respondent No. 2- RDA had already taken a decision that

not more than 40% of land will be returned to the land

owners. This decision is arrived at without taking into

consideration the value of each portion of land on the

basis of their geographical locations.

70. It  is  further  submitted  by  the  learned  senior

counsel on behalf of the appellants that taking land

under “Development Contribution” to the extent of 65% is

not contemplated under Section 50(6) of the Act. Section

50(6)(vi) of the Act of 1973 reads as under:

“……(vi)evaluate  the  increment  in  the value  of  each  reconstituted  plot  and assess  the  development  contribution leviable on each plot holder: Provided  that  the  contribution  shall not exceed half the accrued increment in value.”

 71. Even under Section 40(3)(jj)(a) of the Gujarat Act,

the  maximum  permissible  contribution  of  land  by  land

owner cannot exceed 50%. Therefore, in the absence of

any reasonable procedure arrived at by the Respondents,

taking  65%  of  the  area  of  the  plot  as  development

contribution is wholly unfair and arbitrary, and is also

impermissible as per Section 50 (6)(vi) of the 1973 Act.

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We  hold  that  the  respondents  were  not  justified  in

returning only 35% of reconstituted plots and retaining

65% for different purposes mentioned by them.

Answer to Point No. 6 72. The  learned  senior  counsel  on  behalf  of  the

appellants  urged  that  the  Respondent  No.  2-  RDA’s

application  for  Environmental  Impact  Assessment

clearance  dated  17.6.2010,  was  prior  to  the  date  of

approval of KVTDS by the Board of RDA, the same being

accorded  on  22.6.2010  and  published  on  16.7.2010.

Therefore, the application of the Respondent No.2- RDA

was initially for EIA clearance for 2300 acres, whereas

the final scheme was only for 1600 acres of land. As per

the  condition  (v)  of  the  General  Condition  of  the

Environmental Clearance (EC) dated 25.1.2011, if the RDA

has changed the scope of the project, it has to take a

fresh EC. The EC was sought for considerably more than

the area for which the final scheme was notified i.e.

1600 acres.

73. As per the MoEF, EIA notification dated 14.9.2006

was  issued  by  which  Townships  and  Area  Development

Projects are put in Category–B1. The KVTDS Scheme No.-04

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falls in this category. As per general conditions of

14.9.2006 notification, projects of “B1” category will

be considered as projects of category “A” if the same

falls  in  critically  polluted  areas.  Then  the  Central

Government is the competent authority to grant clearance

to such projects.

74. Further, MoEF, issued a circular dated 25.8.2009,

which has noted that the Central Pollution Control Board

(CPCB)  had  identified  critically  polluted  areas.  The

Expert Appraisal Committee (EAC) is appraising proposal

of  EC  to  the  areas.  Thereafter  the  concerned  State

Pollution  Control  Board  will  send  its  representative

with  its  comments.  The  circular  pertained  to  the

procedure  of  grant  of  EC  to  development  projects  in

Critically Polluted Areas.

75. The  MoEF  issued  O.M.  dated  13.1.2010  listing  out

‘critically  polluted’  and  ‘severely  polluted’  areas.

Raipur falls in severely polluted area (S. No. 63 with

CEPI-65.45). Para 4.1.1 and 4.1.2 of the said O.M. puts

a  complete  prohibition  on  grant  of  environmental

clearance  to  projects  falling  in  ‘critically  polluted

areas’ for 8 months and the said moratorium was further

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extended by letter dated 31.10.2010. Para 4.2 of the

said  O.M  provides  that  the  procedure  for  grant  of

environmental  clearance  to  development  projects  in

‘severely polluted’ areas will be as per circular dated

25.8.2009,  i.e.  for  critically  polluted  areas.

Therefore, the effect of O.M. referred to supra is that

that the EC to the said projects will have to be given

by the Central Government.

76. The Respondent No. 2-RDA submitted its application

on  17.6.2010  for  EIA  approval  for  2300  acres  of

township.  On  25.1.2011,  EC  clearance/EIA  approval  was

granted by the State Level Environment Impact Assessment

Authority (SEIAA) to Respondent No.2–RDA which is not

the authority to give such clearance as per O.M dated

13.1.2010 since the same has to be granted by the MoEF.

77. The  MoEF  in  its  affidavit  filed  before  the  High

Court in Writ Petition (c) No.6040 of 2011, has stated

that  general  conditions  of  EIA  Notification  dated

14.9.2006 were made inapplicable on the projects in item

8(b) vide MoEF O.M. dated 24.5.2011. The High Court has

relied  on  the  aforesaid  affidavit  and  dismissed  the

contention  of  the  appellants  with  regard  to  the  EC

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issue, thereby it has erred in not appreciating the said

O.M. issued after SEIAA had given EC to KVTDS-04. As on

25.1.2011,  the  general  conditions  of  EIA  notification

dated 14.9.2006 were applicable to category ‘B’ projects

and Central Government was the competent authority to

grant EC to KVTDS-Scheme No. 04.

78. Even assuming that the EIA clearance granted by the

SEIAA to RDA is valid, the RDA has deviated mandatory

conditions as prescribed under the EC dated 25.1.2011.

In the EC certificate, there is a specific condition

that ‘the project proponent shall not deviate from the

land use proposals in the scheme area as provided under

the  said  master  plan’.  On  31.1.2011,  the  respondent

no.1- The State Government issued circular with regard

to change in land use from agricultural to residential

purposes.  The  land  use  in  the  concerned  khasras  was

already notified as ‘residential’ under the Master Plan.

The  notification  dated  4.3.2011  was  published  in  the

official gazette of the State  government with regard to

change of the land use of khasras from Agricultural to

Residential purposes in the villages Dunda, Devpur and

Dumartarai and also from Educational to Residential area

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in village Tikrapara.

79. As per condition (ii) in the aforesaid notification,

185 hectares of land has to be maintained. The land use

approved by the Board on 22.6.2010 only provides for

129.42 hectares of land for green zone.

80. On  25.1.2011,  condition  (v)  of  the  General

Conditions, stipulated that if the scope of a project is

changed,  fresh  permission  should  be  sought  from  the

SEIAA. Scope of KVTDS-04 was changed as hereunder:

• On  17.6.2010,  i.e.  the  date  of application for EIA, RDA sought clearance for  2300  acres/847.84  hectares  but finally  the  scheme  was  published  on 16.7.2010 for 1600 acres.

• 4.3.2011: change in land use notified on 31.1.2011 published in official gazette

• 17.8.2011: In RDA Board Meeting, layout plan was amended in view of G.O. dated 25.2.2011.

This resulted in change in scope of the project. Thus in

view of the specific condition (ii) of the Environmental

Clearance  dated  25.1.2011,  fresh  EC  should  have  been

sought and obtained by the RDA but the same has not been

obtained by it.

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81. Section  50(8)  of  the  Act  cannot  be  made

retrospectively applicable. In the absence of vesting of

land  with  the  RDA,  layout  is  not  complete  and  no

allotment can be done. The aforesaid provision of the

Act  was  inserted  by  Ordinance  dated  16.6.2010.

Therefore,  the  same  cannot  be  made  applicable

retrospectively to the Scheme as it was sanctioned by

the State Government on 25.1.2008 and 10.8.2009.   

The Scheme was finalised on 26.5.2010, by which date,

no land had been acquired by Respondent No. 2- RDA nor

any  piece  of  land  vested  in  it.  Plots  are  being

earmarked only on paper and such ‘on paper’ allotment of

plots  have  been  done  by  Respondent  No.  2-  RDA.

Therefore, we are of the opinion that due to the change

in the scope of the project, Respondent No. 2- RDA was

required  to  seek  sanction  for  the  project  from  the

Central  Government.  The  same  has  not  been  done.

Therefore, the KVTDS scheme has also failed to obtain

the  environmental  clearance  requirement  which  is  the

mandatory requirement in law for initiating any project

by the RDA. A faulty town development scheme prepared

through incompetent authorities with blatant violation

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of  legal  and  environmental  procedure  cannot  be  the

reason for deprivation of constitutional rights of the

appellants.

82. Since we answered all the points framed in these

cases  in  favour  of  the  appellants,  we  allow  these

appeals  by  setting  aside  the  impugned  judgments  and

orders  passed  by  the  High  Court  of  Chhattisgarh  at

Bilaspur  in  writ  appeals  and  writ  petitions  of  the

appellants  and  further  allow  the  prayer  of  the

appellants by quashing the acquisition of their land of

the  villages  which  were  included  subsequently  in  the

KVTDS in their respective writ petitions.   The appeals

are allowed. No costs.

    ………………………………………………J.                                    [V.GOPALA GOWDA]

   ………………………………………………J.                                    [C. NAGAPPAN]     

New Delhi,                                            July 29, 2015