Challenges to the Kamal Vihar town development scheme failed. The court upheld preparation without a zoning plan, plot reconstitution, land pooling, master-plan modifications and State-level environmental clearance. It declined an unpleaded constitutional challenge to the amendment and dismissed the appeals.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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HIGH COURT OF CHHATTISGARILBILASPUR
Coram: Hon'ble Shri Sunil Kumar Sinha & Hon'ble Shri Inder Singh Uboweja, T T.
Writ Appeal No. 379 of 2013
Bulamal Chhata'i
Vs.
State of Chhattisgarh & Others
&
(Connected W.A. Nos. 380; 381; 382; 389 & 393 of 2013)
IUDGMENT
For consideration
Sd/Sunil Kumar Sinha Judge
Hon'ble ShriTustice Inder Singh Uboweja
Sd/-
Inder Singh Vboweja Judge
Post for Judgment: / ('/06/2014
8d/Sunil Kumar Sinha Judge
MiL^
HIGH COURT OF CHHATTISGARH, BILASPUR
Corain: Hon'ble Shri Stuiil Kuinar Sinha & Hon ble Shri Inder Singh Uboweja, T T.
Writ Appeal No. 379 of 2013
APPELLANT
Bulamal Chhatii, aged about 88 years, S/o Late Shri Rochaldas Chhata-i, R/o Shri Ram Chowk, Tikrapara, Tahsil & District Raipur (C.G.)
Versus
RESPONDENTS State of Chhattisgarh Through: Principal Secretary, Department of Housing and Environment Mantralaya, D.K.S. Bhawan Raipur (C.G.) Raipur Development Authority Through its Chief Executive Officer, Raipur (C.G.) Du'ector, Town & . Country Planrung, State of Chhattisgarh, Raipur (C.G.) Union of India Through: Ministry of Enviromnent and Forest Paryavarctn Bhavan, C.G.O., Complex Lodhi Road New Delhi110 003
Writ Appeal No. 380 of 2013
WANos. 379:380: 381:382: 389 & 393 of 2013
Smt. Sarda Devi Chhafa-i, aged about 60 years, W/o Ramesh Kumar Chhatri, R/o Shri Ram Chowk, Tikrapara, Tahsil & District, Raipur (C.G.) Bulamal Chhatri, Aged about 88 years,S/oLateShriRochaldas Chhata-i, R/o Shri Ram Chowk, Tikrapara, Tahsil & Distarict Raipur (C.G.)
Versus
RESPONDENTS
State of Chhattisgarh , Through: Prindpal Secretary, ^>-' Department of Housing and Envirorunent Mantralaya, D.K.S. Bhawan Raipirr (C.G.) Raipur Development Authority Through its Chief Executive Officer, Raipur (C.G.) Director, Town & Country Planning, State of Chhattisgarh, Raipur (C.G.) Union of India Through: Minisfay of Envu'onment and Forest Paryavaran Bhavan, C.G.O., Complex Lodhi Road New Delhi110 003
Writ Appeal No. 381 of 2013
APPELLANT
Hemant Chhatri, aged about 34 years/ S/o Shri Laxaman Das Chhatri, R/o Shri Ram Chowk/ Tikrapara, Tahsil & Disto-ict Raipur (C.G.)
Versus
W.A. Nos. 379:380:381: 382: 389 & 393 of 2013
RESPONDENTS
| StateofChhattisgarh Through: F>rincipal Secretary, |
|---|
| Department of Housing and |
| Environment Mantralaya, D.K.S. BhawanRaipur(C.G.) |
| Raipiir Development Authority |
| Through its Chief Executive |
| Officer,Raipur(C.G.) |
| Director, Town & Coiuitry |
| Planning, State of Chhatdsgarh, Raipur(C.G.) |
| UnionofIndia Through: Ministry of |
| Envirorunent and Forest |
| Paryavaran Bhavan, C.G.O., |
| ComplexLodhiRoad Ne\yDeUu- 110003 No.382of2013 |
| Chminay Builders Private |
| Limited, Through- Du'ector, |
| Chinmay Davara, S/o Shri |
| Prakash Davara, A/a 28 years, |
| R/o 8, Puspak Apartment, |
| Chhota Para, P.S. Raipur, District |
| Raipur(C.G.) |
| Jalaram Cooperative Housing |
| Society Limited, Through: |
| President Narendra Davara, S/o |
| Shri Maganlal Davara, Aged |
| about 55 years, Raipiir, P.S. |
| Raipiir(C.G.) |
Writ Appeal No. 382 of 2013
APPELLANTS
Versus
RESPONDENTS
State of Qihattisgarh
| Through: | Housing and |
|---|---|
| Enviromnent | Department, |
| Mantralaya, | D.K.S. Bhawan |
| Raipur(C.G.) |
WA.Nos. 379;_380: 381:382:389 & 393 of 2013
| The Secretary, Law and |
|---|
| Legislative Affaus Department, |
| Mantralaya, D.K.S. Bhawan, Raipiir(C.G.) |
| Raipiir Development Authority, |
| Shastri Chowk, Raipur, Through |
| itsChairinan,Raipiir(C.G.) |
| The Town and Country |
| Development Authority, Raipiu- |
| (C.G.) Through its Chairman, Raipur(C.G.) |
| Shashikant Mu'ani S/o Late Shri |
| Jamnadas Mu-ani, A/a 54 years, |
| R/oShankerNiwas,NearChowk TowerRaipur(C.G.) |
Writ Appeal No. 389 of 2013
APPELLANTS
Versus
W.A. Nos. 379: 380:381: 382:389 & 393 of 2013
f
| RESPONDENTS | StateofChhattisgarh | |
|---|---|---|
| Through: The |
Secretary, | |
| Department of Hou Environment Mantral |
sing and aya, D.K.S. |
|
| Bhawan, Post & Kotwali,Raipur(C.G.) |
P.S. City |
|
| Raipur Development Through The CNef Officer,Post&RS.Rai |
Authority Executive pur (C.G.) |
|
| Du'ector, Town & Planning, State of Ch Post&P.S.Raipur (C.G |
Countay hattisgarh, .) |
And
Writ Appeal No. 393 of 2013
| APPELLANTS | Rajendra Shankar Shtikla, Son of late Shri Ramavtar Shukla, Aged |
|---|---|
| about 68 years, R/o 23/56, |
|
| Malviya Road, Post & P.S. City Kotwali,Raipiir (C.G.) |
|
| Ravi Shankar Shukla, Son of late Shri Chandradutt Shukla, Aged |
|
| about 58 years, R/o 23/56 |
|
| Malviya Road, Post & P.S. City Kotwali,Raipiu-(C.G.) |
|
| Dr. RanjanaPandey,Wifeof Shri | |
| Vivek Pandey, Aged about 43 years, R/o Tirupati Apartments, |
|
| Pachpedi Naka, Post & P.S. PachpediNaka,Raipur (C.G.) |
Versus
| RESPONDENTS | State of Chh | attisgarh, Through |
|---|---|---|
| The Prin |
cipal Secretary, |
|
| Department | of Housing and |
|
| Envu-onment, | Govenunent of |
|
| Chhattisgarh, | Manti-alaya, D.K.S. | |
| Bhawan, Post | & P.S. Gol Bazar, | |
| Raipur(C.G.) |
W.A. Nos. 379:380;381; 382; 389 & 393 of 2013
t
WRtT APPEALS UNDER SECTION 2(11 OF THE CHHATTISGARH HIGH COURT fAPPEAL TO DrviSION BENCH) ACT, 2006
^.
W.A. Nos. 379:380:381: 382:389 & 393 of 2013
Appearance:
Mr. N.K. Vyas, Advocate for the appellants in W.A. Nos. 379/2013; 380/2013 & 381/2013
Mr. Sankalp Kochar, Advocate for the appellants in W.A. No. 382/2013.
Mr. Variui Sharma, Advocate for the appellants in W.A. No. 389/2013.
Mr. B.P. Sharma and Mr. Rohit Shukla, Advocates for the appeUants in W.A. No.393/2013.
Mr. Prashant Desai, Senior Advocate with Mr. Rutul Desai, Advocate for the State.
Ms. Pinki Anand, Senior Advocate with Mr. Rajesh Ranjan and Mr. Sumesh Bajaj, Advocates for Raipitr Development Authority.
Mr. Vivek Shrivastava and Mr. H.S. Ahluwalia, Advocates for the Union of India.
Mr. H.B. Agrawal, Senior Advocate with Ms. Meera Jaiswal, Mr. Pankaj Agrawal, Ms. Preeti Yadav & Ms. Iturani Mukherjee, Advocates for Raipur Mtmidpal Corporation.
TUDGMENT (15.06.2014)
Following judgment of the Coiut was delivered by SUNIL KUMAR SINHA, T.
(1) These appeals are directed against a common judgment dated 15.04.2013 passed in a batch of writ petitions namely- W.P.(C) No. 6280 of 2010 and other connected matters, in all 23 writ petitions, including the writ petitions filed by the appellants herein. By the impugned judgment, all fhe writ pedtions, filed by the appellants and other petitioners, challenging fhe validity of Kamal Vihar Town Development Scheme No. 4 (Scheme/TDS) on various grounds, have been dismissed by the Writ Courfc
W.A. Nos. 379:380; 381; 382; 389 & 393 of 2013
(2)
The facts, briefly stated, are as under:-
2.1 Raipiir Development Authority (RDA) has been duly estabUshed u/S 38 (1) of the M.P. (C.G.) Nagar Thafha Gram Nivesh Adhiniyam, 1973 (Adhiniyam/Adhiiuyam 1973/Act, 1973). The above Town Development Scheme (TDS) has been plaimed by the RDA discharging its functions iinder Subsection (2) of Section 38. It covers five villages nainely- Dunda, Boriya Khurd, Tikrapara, Deopuri and Dumartarai.
2.2. The said scheme has a total project area of 647.84 Hect, out of which the area available for development is 610.46 Hect, in which 482.29 Hect. is private land and 128.17 Hect. is govermnent land. The position of the land(s) m question would be clear from fhe following table which we mark as Table-I:
TabIe-I
PARTICULARS OF TDS-4 (KAMAL VIHAR)
| S.No. | PARTICULARS | AREA | |
|---|---|---|---|
| 1 | TotalProjectArea | 647.84Hect. | |
| 2 | LandAreaAvaUableforDevelopinen | t | 610.46Hect. |
| 3 | TotalPrivateLand | 482.29Hect. | |
| 4 | TotalGovemmentLand | 128.17Hect. | |
| 5 | No.ofLandOwners | 4969 | 482.29Hect. |
| 6 | LANDCONFIRMATION | 4302 | 440.51Hect |
| 7 | AGRBEMENT FOR LAND ISSUED FROMPLANNINGSECTION |
3904 | 398.77Hect. |
| 8 | MONEYCONFIRMATION | 29 | 1.42Hect. |
| 9 | MoneyReceivedagainstland | 4 | 0.148Hect. |
| 10 | CLAAWARD | 543 | 28.17Hect. |
| 11 | CLA(Awardawaited) | 95 . |
16.71Hect. |
| 12 | LAND TRANSFERRED TO RDA (ThroughAgreements) |
2553 | 167.52Hecfc |
| 13 | LAND UNDER LITIGATION W fflGHCOURTINAPPEALS |
6 | 12.52Hect. |
A , __/
W.A. Nos. 379;380;381; 382: 389 & 393 of 2013
^
2.3 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 mfrastructure like, educational, hygienic and various public purpose amenities which would be clear from the following table which we mark as Table-II:
Table-II
Area Analysis of TDS-4 (Kamal Vihar)
| S.No. | FARTICULARS | AREA |
|---|---|---|
| 1. | TotalavailableSchemeAreaunderTDS-4 | 647.84Hect. |
| 2. | AreaunderRecreationallanduse (a) CityPark (b) RegionalPark (c) WaterBodies |
25.43Hect. 103.9(8Hect. 0.83Hect. |
| 3. | AreaunderRoads (a) RDP2021road (b) TDS4roads[i/Croadovercanal] (c) TDS4intemalsectorroads |
54.12Hect. 19.50Hect. 94.61Hect. |
| 4. | Misc. (a) Communityopenspaces (b) Graveyard/cremationgroiinds (c) ApprovedLayout&Existingconstruction (d) BusStand |
38.52Hect. 3.27Hect. 37.38Hect. 0.32Hect. 377.96 |
| 5. | NetareaavaUableforaUotment[647.84-377.96] Hect. (a) Residential (b) AreareservedforEWS (c) Commercial (i) CBD (ii) CommercialBelts (ui) SectorLevel/LocalShoppingcenfcre (e) PSP (f) SectorLevel (i) Health (ii) Schools (g) Composite |
269.88Hect. 188.91Hecfc 32.15Hect. 8.02Hect 2.31Hect. 5.83Hect. 16.81Hect. 2.40Hect 5.75Hect. 7.70Hect. |
| 6. | TotalAreaavailableforaUotment (a) Area'aUottedtolandholders (b)LandPoolforInfrastruchireDevelopinent- (c)AreareservedforEWS__ |
269.88Hect. 178.38Hect. 59.35Hect. 32.15Hect. |
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W.A. Nos. 379:380;381: 382:389 & 393 of 2013
2.4 The broad features of the Scheme wotdd show that there shall be 15 Sectors and the estimated cost of development of infrastructure would be Rs.1085 crores. The Govemment has agreed to hand over its land to the RDA and the land belonging to the private owners are to be taken over by the consent or by acquisition u/S 56 of the Act. The RDA has planned to retum the developed reconstituted plots to the private land owners and it shall not charge any contribution cost/incremental cost from thent with a view to not saddle with any financial burden on the land holders.
2.5 The various ainenities proposed to be given in the development are foiir lane mam roads of 75 plan meters/45mts/30mts width; two lane roads of 24 mts/18 mts; with other mfrastructiu'e, including sti-eet light, service duct, underground drainage, green area, foot-path, cycle track, water supply, sewerage fa-eatment plant, central business district and 30 meters wide coiiunercial tract/abuttmg ring road etc.
2.6 The RDA has planned to give about 35% area of developed plot to the land owners and the remaining area of their undeveloped plot woiild be retained which may go to the other land owners or which may be utilized for the above fadlities under the Development Scheme.
2.7 According to the RDA^15% of the developed plots have also been reserv^d for Economically Weaker Section (EWS) which comes about 32.15 Hect.
..-f
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W.A. Nos. 379:380:381: 382:389 & 393 of 2013
2.8 Out o£ total 4969 private land owners, 39 land owners did not agree to the Scheme/procedure adopted and preferred above 23 writ petitions on various groiuids which were dismissed, thereafter/ these sbc Writ Appeals have been filed by fhe 13 land owners.
(3)
We have heard counsel for the parties.
(4) Leamed counsel for the appellants have firstly contended that there was no zoning plan, therefore, in absence of zoning plan, preparation of town development scheme (TDS) would stand vitiated.
(5) To appredate the said argmnent, we shall have to look into the broad features of Adhiniyam 1973. The very piupose of Adhiniyam 1973 is to make provision for planning and development and use of land; to make better provision for the preparation of development plans and zoning plans with a view to ensuring town planningschemesare made in a propermanner and their execution is made effective; to constitute Town and Coiintry Planning Aufhority for implementation of town and countiy proper development plan; to make provision for the compulsory acquisition of land required for the purpose of the development plans; and to make legal provisions for connected inddental matters. CHAPTER ffl of Adhiniyam deals with regional planning
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W.A. Nos. 379: 380:381: 382: 389 & 393 of 2013
and makes provision for establishment of regions/ survey of the area concemed, preparation of regional plans etc. Section 2 (q) defines regipnal plan which means a plan for the region prepared under this Act, and approved by the State Govemment. CHAFTER IV of Adhiniyam deals with planning area and development plan with a provision of publicadon of draft developnient plan under Section 18 after its preparation under various other provisions of CE1APTER TV. We may note that under the said process a Committee consdtuted under Section 17-A has to consider and suggest modifications and alterations in the draft development plan and to hear the objections after publication of the draft development plan iinder Section 18. It is after this stage/ the sanction of development plan has to be taken from fhe State Govemment under Secdon 19, which may either approve the development plan or may approve it with such modifications as it may consider necessary or may even retum it to modify the same or to prepare a fresh plan in accordance with such directions as it may deem appropriate. The development plan shall come into operation from fhe date of publication of notice under sub-section (4) of Section 19 and from such date it shall be binding on aU development authorities constituted under fhe Adhiniyam and all local authorities functioning within the planning
area. -.
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W.A. Nos. 379; 380; 381: 382; 389 & 393 of 2013
A
(6) It is after this stage, comes the stage of preparation of zoning plan which has been defined in CHAFTER V. Whether preparation of a zoning plan is condition precedent for preparation of a town development scheme (TDS) imder Section 50 of the Adhiniyam would be clear from the provisions of Sections 20 & 21. Section 20 of Adhiniyam deals with preparation of Zoning plans and provides that the local Authority may on its own motion at any tiine after the publication of the development plan, or fhereafter if so required by the State Govermnent shall, within sb( months of such requisition, prepare a Zoning Plan. What would be the contents of zoning plan have been described in Section 21 (1). The use of word 'may in Section 20 makes it clear that it would be on the local authority in all its wisdom to think about preparation of a zoning plan and thus the intention of legislature is that the above provision^so far as local authority is concemed is not mandatory for it, however, if the reqiiu'ement is felt by the State Govemment, the local authority shall be bound by it to prepare a zoning plan because in second Umb of Section 20 word 'shaU' has been used opposing the word 'may' in the first limb. We are fortified in oiir views by the plain rule of interpretation that the use of word 'may' at one place and 'shall at another place in the same section may strengfhen the inference that these words have been used in their primary sense and that 'shall should be construed as mandatory. That apart, 'may is held in all
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W.A. Nos. 379:380; 381: 382; 389 & 393 of 2013
soiindness of construction to confer a power but the word ''shall' is held to make that power, or the exerdse of that power compulsory. (Vide: Principles ofStatutory Interpretation by Justice G.P. Singh, Sixth Edition 1996 p. 261}.
(7) In Section 20, firstly word 'may' has been used so far as discretion of the local aufhority is concemed, thus if the local ;, authority would be of opinion that a zonal plan should be prepared, it may do so and it is not a mandatory requirement, but if it is felt by l_ the State Govermnent that a zoning plan is necessary and directioiis are issued, a zoning plan has to be prepared and no further discretion would lie with any authority because the second part of Section 20 uses the word 'shall'.
(8) It also does not appear to be mandatory for the local authority because Section 21 makes an indication that the zoning plan shall enlarge the details of land use as indicated in the development plan and shall fiu-ther mdicate the land liable to acquisition for public purpose etc., defme in detail and provide for areas reserved for agriculture, public and semi public open spaces, parks, playground, gardens, recreational areas, green-belts and nature reserves; allocate in detail areas or zones for residential, commercial, indiistrial, agriculha-al and other piu-poses; define and provide fhe road and streets and indicate about the other infrastructure and amenities
^:u:?^"y,
15
W.A. Nos. 379;380;381; 382: 389 & 393 of2Q13
^
proposed under the development plan. That is to say that if in the opmion of the local authority or the Govermnent it is felt that the development plan requires furfher clarification on the details of land use etay it may be directed to be done under the zoning plan. This makes it clear that it would depend on the facts and circumstances of each case as to whether the preparation of a zoning plan is essential or not and if it is essential, it has to be prepared which would contain the above details. We are fortified in oiu view by the decision in Sanwi^ndhi^faKWftnanSia.McanSanstha^laryadit -Vs- State of M.P. cmd Others, AIR 1991 Madhya Pradesh, p.72. Thus it is clear that preparation of a zoning plan is not a mandatory condition for preparation of a town development scheme under Section 50 of the Adhiniyam 1973.
It was next contended that there is no scientific basis for (9) giving 35% developed plot and the decision is arbitrary. It was also contended that the said action is in contravention of Section 50 (6) (vi) of fhe Adhiniyam.
(10) The objection relating to 35% developed plot was dealt with by the Committee constituted imder sub-section (5). In Chapter IV of fhe report dated 8.6.2010 (Annexure-R-3/2), the Committee has discussed about the shape of the reconstituted plots. We find in the
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W.A. Nos. 379: 380; 381: 382; 389 & 393 of 2013
report that for this piupose, the provisions of Chhattisgarh Bhumi Vikas Niyam, 1984 and National Building Code of India, 2005 were considered. This scheme is a self finance scheme and the Govemment has decided not to take any monetary charge for the mfrastructure development which includes various facilities which we have mentioned earlier. The contents of Table-II (supra) would show that out of 647.84 Hect, the land available for allotment is only 269.88 Hect. That is to say that 377.96 Hect. have been proposed for mfrastructure development which includes. city park, regional park, water bodies, various roads, conununity open spaces, graveyard/cremation ground, bus-stand etc. Apart from that 10% has been kept in developmental pool and 15% has been kept reserved for EWS. Therefore/ developed land available for allotment appears to be about 35% of the total land area. The committee has also quoted the provisions of Avas Niti, 1995 which talks about givmg option to the land owners for takmg 20% developed land of their original land area or their land inay be acquired iinder the Land Acquisition Act, 1894. It was held that this process may be applicable for all developmental agencies. In the instant case 35% developed plots are not being given to all the land owners iiniformly. Reconstituted plots which are being given are m between 35% to^8% on the imiform slab based on original land area and no one has been given less than 35%. The recommendation of the
17
W.A. Nos. 379:380:381: 382:389 & 393 of 2013
committee would show that it has considered almost all the objectioiis regarding developed plot area and its shape and size. Thus, the 35% arrived at is not baseless and is based on the policy of the State and otherstatutory provisions of National Building Code of India, 2005 and Chhattisgarh Land Development Rules 1984. We may further note that this Court does not sit as an Appellate Authority over the dedsion of the expert committee. Unless the decision is shown to be malafide or contrary to any law or utterly perverse, it has to be taken as correct (Vide: Greater Kailash Part II WelfareAssn^gnd others -Vs- DLF Universal Ltd andothersAT.OOTl
6SCCM8).
(11) It was argued that after deducting 35% from the original plot area, the area lost by the land owner would be 65%, therefore, the contribution exceed 50% which is in violation of Section 50 (6) (vi) of the Adhiniyam. The above provisions/ we quote, says to evaluate the increinent in value of each reconstituted plot and assess the development contribution leviable on the plot holder. On analysis of classified percentage of the developed plots, we find that 15% plots are reserved for EWS. This cannot be said to be coming tmder development contribution because the said plots or the monetary value thereof are not being retained by the RDA. What is not to exceed more than 50% is the development contribution leviable on
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W.A. Nos. 379:380:381: 382:389 & 393 of 2013
^
the plot holder. Thus if we add tfus 15% to the 35%, in general maimer it would come to 50% of the total origtnal land area and in this way fhe argument relating to exceeding 50% towards developmental contribution must fail. Making allotment for EWS is a public purpose and the town plaiming authority is not prohibited m law from providing the plots to the persons belonging to the said Section (Vide: Kiritbhai Nandvadan Bhatt and Ors. -VsAhmedabad Municipal Corporation and Ors., 1996 (1) G.L.H. 905}. f It was argued fhat the RDA cannot serye the public piirpose by snatching plots of the land holders without authority of law. The submission appears to be attracdve in general sense, but in the mstant scheme the situation is different. Here the planning is not only on the contribution of the lands by private land holders.in this plamiing (Scheme)128.17Hect.of govemmentlandhasalsobeen added and the lands of the private land holders and the goverrunent land have been brought mto hotchpotch within the fore-comers of the Adhiniyam and then only fhe arrangement for EWS has been made. It appears to be quite reasoiiable. Thus it cannot be said that the developmental contribution of fhe private land holder has exceeded more that 50% and there is violation of Section 50 (6) (vi) of the Adhiniyn.
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W.A. Nos. 379:380;381: 382; 389 & 393 of 2013
A..
(12) It was next contended by counsel for the appellants that the master plan has been changed; jurisdiction under Section 23-A has been wrongly exercised; it is contrary to Section 23-A; the development plan comes first and fhereafter the scheme has to be frained; therefore, the entire scheme vitiates. Reliance was placed on Chairman, Indore Vikas PradHkaran —Vs-Pure Industrial Coke & ChemicalLtd. and Others, (2007) 8 SCC 705.
(13) To appreciate the argument, we shall firstly look into some important dates. Initially master plan 2011 was enforced and the resolution was passed by fhe RDA on 21.3.2006 for a residential scheme in village Dimda. Thereafter memo of land use in villages Dunda, Boriya Khurd and Tikrapara was sent on 8.5.2006. On 31.7.2006 RDA wrote a letter to the Special Secretaiy, Urban and Housmg Department requestmg for permission of publication u/S 50 for mtegrated township scheme for villages Dunda, Tikrapara, Boriya Khurd and Deopuri with a request to change the land use u/S 23-A. On 18.5.2007, Director, Town and Country Planning replied to the letter dated 3.5.2007 giving permission for publication u/S 50. On 25.1.2008, the Goverrunent granted permission to RDA for publication of the revised scheme u/S 50 which was a proposal for 416.93 acres. Thereafter the revised master plah (2021) got sanctioned and published on 7.4.2008. Then various correspondence
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W.A. Nos. 379: 380:381:382: 389 & 393 of 2013
for grantmg permission to publish declaration of intention u/S 50(1) were made and ultunately on 5.6.2009 notification was published in the official gazette regarding the intention to prepare town development scheme for 416.93 acres. Thereafter on 14.7.2009 RDA passed a resolution for changing the earlier proposal of 416.93 acres and mcreased it for an area of 2300 acres in villages Dunda, Tikrapara, Boriya Khiird, Diimar Tarai and Deopuri. Official correspondence were made between RDA and the State Govemment and then it was granted on 10.8.2009 and thereafter a notification u/S 50 (2) for amerided scheme was published in the official gazette on 4.9.2009. Thus, it is not a case m which the scheme was published prior to publication of the master plan. The dates mentioned by us would show that the master plan was published first and thereafter the scheme was published.
(14) Section 13 (1) of the Adhiniyam provides that the State Govemment may, by notification, constitute planning areas for the purposes of the Adhiniyam and define the limits thereof. Planning area, as per Section 2 (o) therefore, has to be declared by exercising powers u/S 13. Then after completion of formalities, a draft development plan has to be prepared and uldmately after sanction the draft development plan has to be published which shall come into operation from the date of its publication u/S 19 (5) (4) and
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W.A. Nos. 379:380;381: 382:389 & 393 of 2013
from date of publication it shaU be binding on all development authorities constituted iinder the Adhiniyam and all local authorities functioning within the planning area. The development is a continuous phenomena. It can never be stopped. Therefore, finality has not been attached to a development plan by the Legislature in all its wisdoin and Section 19 (5) (4) only talks about its binding nature. It is for all these reasoiis, the Legislature has provided Sections 23 & 23-A so that any need felt after finalization of the development which would also include the plan, inclusion/extension of planning area may be fulfilled. Thus Section 23 & 23-A are enabling Sections by which the development plan or zonal plan can be reviewed and modified. Thus, it cannot be accepted that the development plan/master plan cannot be changed.
(15) The case of Indore Vikas Pradhikaran, cited by the counsel for the appellants, is distinguishable on facts. In the said case tvvo villages were not coming within the planning area, but the town development scheme was made, therefore, it was held that the concemed authority has no power to make such scheme m respect of two villages. That apart/ it was observed that there cannot be town development scheme without a final development plan. In cage on hand, there was a final development plan before the
22
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A
declaradon of initiation of scheme by RDA. The dates would clearly show that on this account the scheme does not vitiate.
(16) Argumg the above points, attack was also made on certam modifications m the scheme which took place after 14.7.2010. These modifications were in relation to change of land iiser u/S 23-A. Three iniportant changes in land user in the master plan 2021 were proposed by the RDA. First was where the major part of land at one placewas goinginresidentialandtheminor partwas gomgin agricultural. Here it was sought that fhe ininor part of agricultural be added to the major part of residential. Second was where fhe major part of the land at one place was going in agriculhiral and minor part was going in residential. Here it was proposed fhat the minor residential part be also placed in major agricultural part. Third was change of land user of the area reserved for educational purpose by makmg change in location and addmg said area for residential purpose. It was argued by State coimsel and coiinsel for RDA that this was proposed to make plan workable so that the land of one species of agricultural or residential come at one place. So far as permissibility to do it imder the law is concenied, as we have ah-eady held, there was no difficiilty. The question relates to its genymenecessityand publicwelfare.Accordingtothe scheme of Sections 23 & 23-A, primarily, these factors for judging would be m
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W.A. Nos. 379;380;381; 382; 389 & 393 of 2013
domain of concemed authority or State Govemment as has been provided under these Sections. We are guided by language of both the Sections which clearly convey that all this was permissibie for urgent public purpose. Explanation to Section 23-A makes it clear that for the purpose of this section 'public purpose' includes creation, development and maintenance of human settlements or any part thereof. The Explanation is inclusive, therefore, it has to be taken in a broad sense keeping in mind the iminediate necessity which would be beneficial to the people at large and making the scheme workable in public interest. If the lands of one spedes are kept in one place making area embarked enlarged, it cannot be said as i.inreasonable. Its a matter of common knowledge that many times, agricultural work in a small piece of land which is siuroiinded by large residential locality is not fruitful. Likewise a small of land for residential surroimded by piece purpose agricultural land may not be suitable for the residents who would always like to be among the community. That apart, we must mention that so far as the present appellants are concemed, none of them has a land coming withm the area wherein the above modificatioiis were sought by the RDA. Moreover the modificatiom sought were hardly affecting 8% of the total land area of the town development scheme which would be further mmimizedbecause some part of proposal was ultimately not sanctioned.
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(17) It was also argued that there was no urgent public purpose. Section 54 of fhe Adhiniyam provides fhat if the Town and Countay Development Authority fails to conunence implefflentation of the Town Development Scheme within a period of frivo years or complete its implementation wifhtn a period of five years from the date of notification of the final scheme under section 50, it shall, on expiration of the said period of two years or five years, as the case may be, lapse. Therefore, the respective iinpleinentations have been restncted within fhe specified period and a town development scheme has to be completed inscheduled time frame. We have ah-eady held that change in said land user was for public purpose. Therefore, invocation of jiirisdiction u/S 23-A was exercised for the piirpose of compledon of the scheme within specified time period and save it from lapsing and the need was an iirgent public need. Moreover, no fruithil piirpose would be served in reimtting the matter to the irddal stage because in absence of any legal impediment it would a mere formality and woiild adversely affect the interest of public at large whose lands have akeady been takpn and who would be waitmg for the developed plots because a delay is also likely to be caused in adopting such process. We are of the view that for the foregoing reasons, the argument advanced by the coimsel for the appeUants cannot be accepted.
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(18) It was next contended that there was violation of procedure as stated u/S 23-A (2). Two points were raised in this regard. First, nodces were not published contmuously for two days in the local newspapers; and second, modified plan was not published along with notices tn the newspapers and at conspicuous place, thereby violating the mandatory provisions.
(19) It is an admitted position that fhe notice of draft modification planwas publishedintwodailynewspaperson5.11.2010and 7.11.2010. Leamed counsel for the appellants have contended that there was a gap of one day in publication of the notices, therefore, it cannot be held as fhe said notices were published continuously for two days as contained in Section 23-A (2). They have relied on Bhopal Citizens' Fomm -Vs- State of M.P. and Others, 2011 (1) M.P.L.J. 51. Leamed State counsel has argued, and it is also factually correct, that 6.11.2010 was holiday on accoiint of Dipawali Festival and the two newspapers in which the notices were published, were not published on 6.11.2010. In Bhopal Citizens' (supra), it was held that the prpvisions of Section 23-A as amended by the Amending Act, 2005, are intra vires and it was also held that manner of reqiiirement of publication of notice contained in Section 23-A (2) is mandatory in nature. There is no dispute about the above legal
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W.A. Nos. 379:380:381: 382: 389 & 393 of 2013
Jk
position. However, in the said case, as we find from Para-28, the context was that the publication was made only once and there was no second publication at all. But, in case on hand, the publication was made on two days and so far as requirement of publication on two days in two daily newspapers is concemed, there is no violation. The question is whefher fhe publication on 5.11.2010 and 7.11.2010 when the newspapers were not published on 6.11.2010 on the eve of Dipawali, would be held as continuous pubUcation or not? The leamed single Judge has dealt with dus groiuid tn Para-23 of fhe impugned judgment, and referring to the decision of S.E. and Stamping WorksLimited-Vs- The Workmen, AIR 1963 SC 1914, has held that it shall be treated that the notification was published on two continuous days. We have carefiilly examined the reasons for holding like that and we find it to be correct and logical. The words used like continuously for tvvo days in sub-section (2), if given plain meaning in the facts and circumstances of the case, woiild mean that two days of continuous dates of publication of the newspapers. If the newspapers were not published on the second day and the third day's publication was in continuation of the fast day's publication, it would be treated that the notice was published on two continuous days and argiiment advanced by coiinsel for the
appellants must fail.
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W.A. Nos. 379:380:381: 382; 389 & 393 of 2013
(20) For the next argument we note fhat in the newspaper, khasra numbers, village name and the proposed modifications were mentioned and it was also mentioned fhat the draft development planisopen formspection andanyaggrieved personcan inspect it in the Office of Collector, Raipur; Joint Director, Town and Countiy Planning, Regional Office, Raipiir; Chief Executive Officer, RDA and Cominissioner, Municipal Corporation, Raipiu-. It was also clearly mentioned in the notice about submission of Objections etc. For ready reference, we quote the relevant portion of the concemed notification:-
ynfl'd^K? ^ ^qqTcT ^ 7TPT cCT 311^11^'HI'; (^T. l^? ^TR) IT^ ^R', ^t - 15406 yCTTl'd^ld ?IRFT SITcim ^cf TTqbRUT 1?FqpT
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W.A. Nos. 379:380:381: 382:389 & 393 of 2013
It is thus clear that fhe modified plan was made available for inspection of public at large at conspicuous places as per Section 23-A (2).
It was next contended that the notification date 4.3.2011 was in (21) violation of Article 166 of the Consdtudon as it was not duly authenticated by Govemor. Leamed counsel for the State has contended that fhe practice prevailing srnce the erstwhile State of Madhya Pradesh is that if there are more than one notification published on the same day, they are printed in continuation and after the last notification it is mentioned fhat they were issued in the name of and by order of Govemor and signature of the concemed Secretary is appended. Various notifications were shown to us which were published in the above fashion in the concemed Gazette. It appears to be a long past practice prevailing in the State. In Iftikhar Ahmed Son ofDpst Mohammad-Vs- State ofMadhya Pradesh and Others, AIR 1961 MP 140 , it was held that whsn several notifications appeared together in the Gazette under the signature of the Under Secretary at the end of the series, there is no illegality and there is proper authentication of all such notifications. Moreover, the memo issued for publicadon woiild show that it was issued by the order and on the name of the Govemor. Thus
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W.A. Nos. 379: 380:381:382:389 & 393 of 201 3
argument relatmg to improper authentication of the notification fails and the same is rejected.
(22) Leamed counsel for the appellants have next contended that the lands of private owners are being taken without payment of compensation and without valid transfer of title.
(23) Leamed counsel for the respondents have opposed these arguments and have referred to the provisions of Sections 49 & 56 of the Adhiniyam. The State counsel has also referred to the decision of State of Guwrat -Vs- Shantilal Mangaldas and Others, AIR 1969 SC 634.
(24) Section 49 of the Adhiniyam provides that a town development scheme may make provision for any of fhe following matters:-
(i) acquisition, development and sale or leasing of land for the purpose of town expansion;
(ii) acquisition, relaying out of, rebuilding, or relocating areas which have been badly laid out or which has developed or degenerated into a slum;
(iii) acquisition and development of land for public purposes such as housing development, development of shopping centres, cultural centres, administrative centres;
(iv) acqmsition and development of areas for commercial and industrial piirposes;
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W.A. Nos. 379:380:381: 382: 389 & 393 of 2013
(v) undertaking of such building or construction work as may be necessaiy to housing, shopping, provide coiiunercial or other facilities;
(vi) acquisition of land and its development for the purpose of laymg out or remodelmg of road and street pattems;
(vii) acquisition and development of land for playgrounds, parks,recreation centres and stadia; ^ of for the of / (viii) reconstrucdon plots purpose buildings, roads, drains, sewage Imes and other similar amenities;
(bc) any other work of a natiire such as would bring about environmental improvements which may be taken up by the authority with the prior approval of the State Govemment.
(25) Section 56 of the Adhiniyam gives power to the Town and . Coiintry Development Authority for acquisidon of land. It provides that after fhe date of the publication of the final town development scheme imder section 50, but not later than tfaree years therefrom, the said Authority may proceed to acqiiire by agreement the land reqiiired for the unplementation of the scheme. It further provides that if fhe said Authority fails to make acquisition in the above manner, the State Govenunent may proceed to acquire such land under the provisions of the Land Acquisition Act/1894 and on the payment of compensadon awarded under that Act and any other charges incurred by the State Govemment in connection with the
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W.A. Nos. 379; 380:381: 382:389& 393 of 2013
acquisition, the land shall vest in the Town and Country Development Authority subject to such terms and conditions as may be prescribed. Thus, there are two modes of acquisition as per the statute. One by agreement and other by general law of acquisition under the Act, 1894. So far as compensation is concemed, it would be mandatory if fhe acquisition is under the generallawthat isundertheAct1894andinsuchcasethelandin question shall vest in the Town and Countiy Development Authority making it to be clear case of vesting under the law< So far as acquisition by agreement is concemed, there is neither vesting nor transfer of title, therefore, the Adhiniyam does not provide for a compeiisation in such cases. In the instant case, the developed plots have been proposed to be given to the land holders and who are not agreeable to it, have been given option to take monetary value.
(26) In Shantilal (supra), it was observed with reference to Bombay Town PIanning Act that in making a Town Planning Scheme the lands of all persons covered by the scheme are treated as if they are put in a pool. The Town PIanning Officer then proceeds to reconstitute the plots for residential buildings and to reserve lands for public puurposes. Reconstituted plots are allotted to the landholders. The reconstituted plots having regard to the exigencies of the scheme need not be of the same dimensions as the original land.
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Their shape and size may be altered and even the site of the reconstituted plot allotted to an owner may be shifted. The Town PIanning Officer may lay out new roads, divert or close existing roads/ reserve lands for recreation groiuids, schools, markets, green belts and sunilar public purposes, and provide for drainage, lighting, water-supply, filling up or reclainadon of low-lying, swamp or unhealfhy areas or leveling up of land so that the total' }1 / area induded m the scheme may conduce to the health and weUbeing of the residents. Since the Town Plarming Scheme is intended to improve the sanitary conditions prevaiUng in a locality, the owners of plots are required to maintain land open around thetr buildings. The object of the scheme being to provide auienities for the benefit of the residents generally, the area in the occupation of the individual holders of land is generaUy reduced, for they have to conta-ibute out of theu' plots, areas which are requued for maintaining the services beneficial to fhe community. It was further observed that in fhis process the whole or part of a land of one person, may go to make a reconstituted plot, and the plot so reconstituted may be allotted to another person and the lands needed for public piu-poses may be earinarked for those purposes. It was further held, in light of Section 53 of the Bombay Act, that it does.not provide that the reconstituted plot is transferred or is to be deemed to be taransferred from the local authority to the owner of
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the original plot. In terms Section 53 provides for statutory readjustment of the rights of fhe owners of the original plots of land. There is no vesttng of fhe original plots in the local authority, nor transfer of the rights of the local authority in the reconstituted plots.
(27) On the above analogy, as we have said in case of acquisition by agreeinent, there is no question of transfer of the title nor there is vesting of the land in the RDA. It is a simple re-adjustment of the rights of the owners of the original plots of land, which is not prohibitedunderany provision.Whenthe source of such acquisition is clearly provided u/S 56, there cannot be a challenge on this account particularly by persons (appellants herein) whose lands have not been acquired in the above manner. We have been told by respondent's counsel that all the private land owners except the above 13 appeUants have agreed for acquisition by agreement and land acquisition proceedings under the Act 1894 have been initiated against the appellants. It was also stated by them that now Hemant Chhatai (appeUant in W.A. No. 381 of 2013) has also entered into an agreement with the RDA. In light of the above facts and cu-cuinstances, we find no force m the said arguments and the same has to be rejected.
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W.A. Nos. 379: 380:381: 382: 389 & 393 of 2013
(28) Leamed counsel for the appellants have next contended that the RDA has not taken development permission u/S 28 of the Adhiniyam, therefore, the entire development scheme vitiates. Reliance was placed on Secdons 27 & 28.
(29) The argument is totally misconceived. Section 27 talks about the development undertaken on behalf of Union or State ^- / Govenunent. It provides that when the Union Govemment or the State Govemment intends to carry out developinent of any land for the pirrpose of its departments or offices or authorities, the officerin-charge thereof shall inform in writing to the Du'ector the intention of the Govemment to do so, giving full particulars thereof, accomparued by such documents and plans as may be prescribed adeast thirty days before imdertaking such development. Likewise Secdon 28 provides for Development by Local Authority or by any authority constituted imder the Adhiniyam, 1973. According to this Section, where a Local Authority or any aufhority specially consdtuted iinder this Adhmiyam intends to carry out development on any land for the purpose of that authority, the procedure applicable to the Union or State Govemment under secdon 27 shall, mutatis mutandis, apply in respect fo such authority. Thus, these provisions talk about the development of land for the purpose of concemed siuthorides/departments/officers thereof. In the instant
^l"'
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case, though RDA is an authority for the purpose of Section 28, but the development scheme has not been prepared for the purpose of the RDA. Therefore, the provisions of these Sections would not apply to the present scheme/acquisition. In the instant case, the provisions of Sections 49 & 50 would be applicable which are self contained in all respects giving a dear mode of acquisition for public purpose and any town development scheme prepared u/Ss 49 & 50 would not be subject to the permission referred to in Sections 27 & 28 because the nature of scheme and acquisition under these two sections are quite different than that reflected in Sections 27 & 28.
(30) It was next contended by tfre counsel for ttie appellants that ainendment brought in Secdon 50 enacting a new sub-section i.e. 50 (8) without assent of the President is illegal and incompetent, therefore, fhe amending provisions are ultra vu'es and actions taken under the said provisions vitiate.
(31) The said argument was vehemently opposed by the counsel for the respondents on the ground that the amending provisions were not challenged in any writ petition; the said argument was never raised before the smgle Bench; even there are no averments in the memo of appeals relating to vires of Section 50 (8), therefore, the
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W.A. Nos. 379:380:381; 382; 389 & 393 of 2013
said argument carmot be entertained and the validity of the
amending provisions cannot be examined in these appeals.
(32) State Govemment vide C.G. Act No. 22 of 2010 brought amendment and made followmg provisions with effect from 6.9.2010:-
50 (8) (i) Where a town development scheme has come into operadon, all lands required by the Town & Country Development Authority for the purposes specified m following clauses:-
(a) Layout of new streets or roads, construction, diversion, extension, alteration, improvement and closing up of stireets and roads and discontinuance of cominunications, etc.; (b) Drainage, inclusive of sewerage, surface or sub-soil drainage and sewage disposal; (c) Lightmg; (d) Watersupply;
shall vest absolutely in the Town and Country Development Authority free from all encumbrances.
(ii) Nothing in sub-section (i) shall affect any right of the owner of the land vesting in the appropriate authority under that sub-section.2
(33) The vires of the above amendment was not challenged by fhe appellants in their writ petitions. No relief relating to such I declaration was claimed by them. There is no pleadmg m the writ
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W.A. Nos. 379; 380; 381; 382: 389 & 393 of2013
petitions challenging the coiistitutional validity of the said Act on any ground. Even there is no averment in fhe memo of appeals. It is for the first time the arguments have been advanced by the counsel for the appellants raising singular contention that the assent of President was not taken for the Amending Act and the Amending Act was brought with the assent of the Govemor.
(34) Let us firstfy remember the basic principles that the presumption is always in favour of the Gonstitutionality, of an enactment, and the burden is upon person who challenges the constitutionality to show that there has been a clear transgression of the constitutional principles. Thus the burden of proving all the facts which are requisite for the constitutional validity is upon the person who challenges the constitutionality f^ide: Chiranjit Lal Chowdhuri -Vs- Union of India, AIR 1951 SC 41; Cf. Rao Shiv Bahadur Singh -Vs- State ofU.P., AIR 1953 SC 394 and Ramarao - VsAll India Backward ^lass Bank^ Employees Welfare Association, AIR 2004 SC 1459). Where the constitutional validity of a provision is not under chaUenge, the Court will have to proceed on the basis that the same is intra vires and interpret the same as such (Vide: MolarMal -Vs- Kav Iron Works (P) Ltd., (2000) 4 SCC
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W.A. Nos. 379: 380:381; 382: 389 & 393 of 2013
(35) Pressing the above argument by counsel for the appellants attracts the doctrine to collateral challenge. In a collateral challenge the exercise is not the invalidation of a decision, but only to ascertain whether the dedsion exists in law at all and rely upon incidents and effect of its "non-existence". Doctrine of collateral challenge will not apply to a decision which is valid ex-hypothesi and ^ which has some presumptive existence, validity and effect m law. 7 Such a decision can be mvalidated by the right person in ,right proceedings brought at the right time. It is only a niillity stemming from lack of inherent jiirisdiction or a proceeding that wears the brand of invalidity on its forehead that might afford a defence even against enforcement (Vide: Pankaj Bhargava and Another -VsMohinder Nath and Anofher. (1991) 1 SCC 556). Here the matter relates to existence of an Act which is exfacie valid imless declared invalid in a proper proceeding on proper foundation laid down by the concemed party and the same principle would apply. We are of the opinion that no law wMch is valid exfacie carrying presumption of its correctness and validity can be invalidated in an incidental proceeding tn light of the Docta-me of collateral challenge. That apart, there are resta-ictions on the appellate jiuisdiction when pleadings etc. have never been raised. Thus, we do not wish to express our views on the above argument on merit and we decline
^
39
W.A. Nos. 379;380:381: 382; 389 & 393 of 2013
"L'
to entertam the said argument raised for the fkst time in these intra court appeals without any foundation for fhe same.
It was next contended that Enviromnental Clearance was not (36) obtamed from the appropriate Authority. It was contended that looking to the area of the project; Envirorunental Clearance was required from the Central Govemment.
(37) Mr. Desai has contended that it was a project falling under Category B-l project; therefore, Environmental Clearance was required from the State Level Environment Impact Assessnient Authority (SLEIAA), which was duly obtained.
(38) A perusal of the record would show that Envu-onmental Clearance was obtained from SLEIAA vide its order dated 25.01.2011. The notification issued by fhe Ministry of Enviroranent and Forest (MOEF) dated 14.09.2006, which is not disputed by both the parties, two categories of projects were formed namelyCategory 'A and Category B . For Category A project, clearance has to be obtained from the Central Govemment, whereas, for Category 'B' project, it has to be obtained from the SLEIAA. In classification, the mstant project is covered under Clause VDl (b) of the notification as it covers an area of more than 50 hectares for
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W.A. Nos. 379: 380:381: 382; 389 & 393 of 2013
Township and is a Category B-l project. Thus, it cannot be said that Envu'onmental Clearance was not obt^med from the appropriate Authority or it was a case in which, En^ironmental Qearance from the Central Govermnent was reqiiired. ^toreover, we find that the Central Govemment, in its retum filed in one of the Writ Petidons 1 (WP(C) No.6040/2011), has stated on oa|fh that the project has been >-> duly cleared by appropriate Authority. , In view of the above facts / I situadon and particularly in the ligh^: of the nodfication dated 14.09.2006 as also in the light of categoripal admission of the Central i Govermnent, it cannot be held that proppr Enviromnental CIearance 1 was not obtained from the concemed Authority.
(39) It was also contended in Writ Appeal No.393/2013 that the land of the appellants, which is situated at a distance of 1.5 km from ' the remaining area of the project, has been included with malafide intention. This point has been dealt with by the writ Court vide para 48 of the judgment. The writ Coiirt has mentioned factual aspects in fhis paragraph, including that the appellants' land is connected with the Scheme area through the Highway. It has been observed by the writ Court that the cliister of land in question, which is covered imder Sector 14-B and 15-C of the sanctioned lay-out plan of the Scheme, belongs to as many as 19 land owners. Thus, it was not a
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W.A. Nos. 379; 380:381: 382:389 & 393_of2013
case that only the land of the appellants, situated at a distance of 1.5 km, has been singled out for inclusion in the Scheme.
(40) That apart, we also note that even in the draft scheme, the said area was shown and no objection was filed to the effect that this area was included in the draft scheme malafidely or intentionally as it is now contended by the appellants.
(41) In Babulal Badriprasad Verma Vs. Surat Municipal Corporation (2008) 12 SCC 401, it was held that if no objection was raised before the Committee m respect of the draft scheme, the petitioners are estopped from raising such contenUons before fhe writ Court. It is on fhese grounds, the writ Coiirt has not entertained the said objecUon. We have carefully gone through the contents of the record. Since no such objection was raised by the appellants before the appropriate Authority, they would be estopped from challenging the inclusion of their land on the grounds of malafide, which fhey have raised for the fast tune before the writ Court and the writ Court has rightly refused to entertain their groimds.
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(42) Leamed counsel for the appellants have also contended that the RDA was not competent to sale the developed plots, which they have kept in 'land pool'.
(43) The contention of the respondents is that 10% developed plots, which have been reserved as'land pool', have to be sold because the •f Committee has taken a decision not to recover the ainoiunt of / incremental development contribution. Their argument was that the Authority can only generate the amount from sale of the land, which are kept m land pool, for the piu-pose of providmg infrastructural facilities. We note from the Scheme that no development cost is being incurred from the land owners and the same is being bome by the Aufhority. The infrastructiu-al facilities, which are being provided, are roads, drainage, water supply, electa'icity, recreation centres, Bus stand and ahnost all other amenities, which are reqiured for a well-developed residential area.
(44) The question is whether the RDA was competent to do so and if it can do so, whether fhe quantum of 'land pool' is reasonable?
(45) Secdon 49 (supra) provides that a town development scheme may make provision for various matters included fherein. Clause (i)ofSection49clearly providesfhattheSchememaymake
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provisions for acquisition, development and sale or leasing of land for the piupose of town expansion. Clause (iii) further provides for acquisition and development of land for public piirposes such as housing development, development of shopping centres, ciiltural centres and admirustrative centres. Likewise, Clause (viii) provides for reconstruction of plots for the purpose of buildings, roads, drains/ sewage lines and other similar amenities. A conjoint reading of these Clauses of Section 49 and various other Clauses, would show that there is noting in the Act which may prohibit an Authority to sale or lease out the land which may include a developed land under the land development scheme. On the contrary, the provisions appear to be enabling. Thus, there can be hardly any doubt in saying that the Authority has jiirisdiction to sale the developed land.
(46) So far as reasonableness of 10% is concemed, we may note from the Scheme that there are provisions for city park, regional park, water bodies, wide roads and lanes, intemal sector roads, commiinity open spaces, graveyard/cremation grounds, Bus stand, health centres, Schools and coinmerdal-belts. (See: Table-H supra). If no incremental development contribution is being taken from the land owners and the Authority has decided to keep only 10% of developed land in land to meet the infrastruch.tral pool
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Doctrine of collateral challenge - No law which is valid ex facie carrying presumption of its comrectness and validity can be invalidated in an incidental proceeding without laying down any foundation.
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3 issues framed by the court
Was a zoning plan mandatory before preparation of the town development scheme?
Were the reconstituted-plot allotments, EWS reservation and sale of pooled developed land permissible under the Adhiniyam?
Did the master-plan modifications and their publication comply with Section 23-A?
Colour shows how this judgement treated each authority
Sanwi^ndhi^faKWftnanSia.McanSanstha^laryadit -Vs- State of M.P. cmd Others, AIR 1991 Madhya Pradesh, p.72.Relied on¶134
Greater Kailash Part II WelfareAssn^gnd others -Vs- DLF Universal Ltd andothersAT.OOTlRelied on¶142
Kiritbhai Nandvadan Bhatt and Ors. -VsAhmedabad Municipal Corporation and Ors.Relied on¶148
Kiritbhai Nandvadan Bhatt and Ors. -VsAhmedabad Municipal Corporation and Ors., 1996 (1) G.L.H. 905
Chairman, Indore Vikas PradHkaran —Vs-Pure Industrial Coke & ChemicalLtd. and OthersDistinguished¶162
Chairman, Indore Vikas PradHkaran —Vs-Pure Industrial Coke & ChemicalLtd. and Others, (2007) 8 SCC 705. · Who else cites this
Bhopal Citizens' Fomm -Vs- State of M.P. and OthersDistinguished¶181
Bhopal Citizens' Fomm -Vs- State of M.P. and Others, 2011 (1) M.P.L.J. 51.
S.E. and Stamping WorksLimited -Vs- The WorkmenRelied on¶181
S.E. and Stamping WorksLimited<sup>-Vs-</sup> The Workmen, AIR 1963 SC 1914 · Who else cites this
Iftikhar Ahmed Son ofDpst Mohammad -Vs- State ofMadhya Pradesh and OthersApplied¶191
Iftikhar Ahmed Son ofDpst Mohammad<sup>-Vs-</sup> State ofMadhya Pradesh and Others, AIR 1961 MP 140 · Who else cites this
State of Guwrat -Vs- Shantilal Mangaldas and OthersApplied¶220
State of Guwrat -Vs- Shantilal Mangaldas and Others, AIR 1969 SC 634. · Who else cites this
Chiranjit Lal Chowdhuri -Vs- Union of IndiaRelied on¶244
Chiranjit Lal Chowdhuri -Vs- Union of India, AIR 1951 SC 41 · Who else cites this
Rao Shiv Bahadur Singh -Vs- State ofU.P.Relied on¶244
Rao Shiv Bahadur Singh -Vs- State ofU.P., AIR 1953 SC 394 · Who else cites this
Ramarao - VsAll India Backward ^lass Bank^ Employees Welfare AssociationRelied on¶244
Ramarao - VsAll India Backward ^lass Bank^ Employees Welfare Association, AIR 2004 SC 1459 · Who else cites this
MolarMal -Vs- Kav Iron Works (P) Ltd.Relied on¶244
MolarMal -Vs- Kav Iron Works (P) Ltd., (2000) 4 SCC · Who else cites this
Pankaj Bhargava and Another -VsMohinder Nath and AnofherApplied¶247
Pankaj Bhargava and Another -VsMohinder Nath and Anofher. (1991) 1 SCC 556 · Who else cites this
Babulal Badriprasad Verma Vs. Surat Municipal CorporationApplied¶264
Babulal Badriprasad Verma Vs. Surat Municipal Corporation (2008) 12 SCC 401 · Who else cites this
9 provisions across 2 enactments
Bulamal Chhatii
State of Chhattisgarh
Raipur Development Authority
Director, Town & Country Planning, State of Chhattisgarh
Union of India
Sunil Kumar Sinha
Inder Singh Uboweja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
