Supreme Court of India
AHMEDABAD MUNICIPAL CORPORATION & ANR.versusAHMEDABAD GREEN BELT KHEDUT MANDAL & ORS.
- Citation
- 2014 INSC 382
- Decided
- 9 May 2014
- Disposal
- Disposed off
- Bench
- B S CHAUHAN
Holding
A lapse of reservation under Section 20 does not preclude re‑reservation of the land in a town‑planning scheme under Section 40(3)(jj); the scheme’s provisions, including the 15% sale, are constitutionally valid and the Land Acquisition Act, 1894 does not apply.
Summary
The Gujarat government prepared a development plan in 1987 reserving a "green belt" for public housing. After ten years the reservation lapsed under Section 20 of the Gujarat Town Planning and Urban Development Act, 1976. The Ahmedabad Urban Development Authority later framed a town‑planning scheme reserving the same land again under Section 40(3)(jj) and earmarking up to 15% of the area for sale to raise infrastructure funds. The tenure‑holders challenged the scheme, arguing that the land could not be re‑acquired after the lapse, that the sale provision was excessive, that compensation under the Act was inadequate, and that the provisions violated Articles 14, 19 and 300‑A of the Constitution. The Supreme Court held that a development plan and a town‑planning scheme are distinct instruments; the lapse of a designation under Section 20 does not bar re‑reservation under Section 40, and the scheme’s provisions, including the 15% sale, are valid and not subject to the Land Acquisition Act, 1894. Hardship of individuals cannot invalidate a clear statutory provision. The Court set aside the High Court’s judgment on these points and allowed the appeals of the municipal corporation and the State, while dismissing the separate 2014 appeal and transferred cases.
Issues considered
- The effect of a lapse of land reservation under Section 20(2) on the ability to re‑reserve the same land under Section 40(3)(jj) of the Gujarat Town Planning and Urban Development Act, 1976.
- Whether the provision allowing up to 15% of the scheme area to be sold for residential, commercial or industrial use is constitutionally valid.
- Whether compensation prescribed under Sections 82, 84 etc. of the 1976 Act is adequate or whether the Land Acquisition Act, 1894 applies.
- Whether the scheme violates Articles 14, 19(1)(f) and 300‑A of the Constitution.
- Whether the hardship of individual land‑owners can be a ground to strike down the statutory provisions.
Legislation cited
- Constitution of Indias. Article 14, s. Article 19(1)(f), s. Article 300-A
- Gujarat Town Planning and Urban Development Act, 1976s. 20(1), s. 20(2), s. 40(3)(jj), s. 45, s. 52, s. 67, s. 80, s. 82, s. 84, s. 91
- Gujarat Town Planning and Urban Development Rules, 1979
- Land Acquisition Act, 1894
Subjects
Town planning schemeRe‑acquisition of landSection 20 Gujarat ActSection 40(3)(jj) Gujarat ActCompensationConstitutional validityLand Acquisition Act 1894Development plan vs. schemePublic purposeUrban development
Judgment
• [2014] 11 S.C.R. 855
AHMEDABAD MUNICIPAL CORPORATION & ANR. A
v.
AHMEDABAD GREEN BELT KHEDUT MANDAL & ORS.
(Civil Appeal Nos.1542-44 of 2001)
MAY 9, 2014
B
[DR. 8.S. CHAUHAN, J. CHELAMESWAR AND
M.Y. EQBAL, JJ.]
Gujarat Town Planning and Urban Development Act,
1976 - ss. 40(3)(jj)(iv) and 20(2) - Re-acquisition u/s. C
40(3)(jj)(a) for Town Planning Scheme - Of the land which
was de-reserved u/s. 20(2) after its acquisition for
development plan - Permissibility of re-acquisition of such
land - Held: The development plan and Town Planning
Scheme, both are two different things - Hence, re-acquisition D
of d.e-reserved land, under Town Planning Scheme is
permissible - In such acquisition provisions of Land
Acquisition Act, would riot be applicable - Land Acquisition
Act, 1894.
Interpretation of Statutes - Individual hardship cannot be E
a ground to strike down a statutory provision by not giving
effective meaning to every word of the provision, language
whereof is unequivocal.
Disposing of the matters, the Court F
. HELD: 1.1. The High Court has recorded an
erroneous finding that if a designation lapses under
Section 20 of Gujarat Town Planning and Urban
Development Act, 1976, the land cannot be again G
reserved in a town planning scheme, and that if the land
cannot be acquired under Section 20 for want of capacity
to pay any compensation under the Land Acquisition Act
1894, it cannot be allowed to be acquired indirectly on
855 H
A
856 SUPREME COURT REPORTS [2014] 11 S.C.R.
lesser payment of compensation as provided under the
•
Act 1976. [para 39] [890-G]
I
1.2. The town planning scheme provides for pooling
the entire land covered by the scheme and thereafter re-
B shuffling an.d reconstituting of plots, the market value of
the original plots and final plots is to be assessed and
authority has to determine a·s to whether a land owner has
suffered some injury or has gained from such process. Re-
constitution of plots is permissible as provided under the
scheme of the Act as is evident from cogent reading of
C Section 45(2)(a)(b)(c) and Section 52(1)(iii) in accordance
with Section 81 of the Act 1976. By re-constitution of the
plots, if anybody suffers injury, the statutory .Provisions
provide .for compensation under Section 67(b) read with
Section 80 ofthe Act 1976. By this re-constitution and
D readjustment of plots, there is no vesting of land in the
local authority and therefore, the Act provides for payment
of non-monetary compensation. When the scheme comes
into force all rights in the original plots are extinguished,
and simultane_ously therewith ownership springs in the re-
E constituted plots. It does not predicate ownership of the
plots in. t.he local authority, and no _process - actual or
notional ~of transfer is contemplated in that appropriation.
Thus, in case a land-owner is not pr-0vided with a final plot,
amount of his loss would be payable to him as required u/
F s. 84 of 1976 Act. The provisions of Land Acquisition Act,
1894 would not be applicable. [paras 23 and 25] [881-E-H;
882-A, E-F] I
• I
State of Gujarat vs. Shanti/al Mangaldas AIR 1969 SC
G 634 - followed,
+
Maneklal Chhotalal vs. · M. G. . Makwana
1967 AIR 1373:1967 SCR 65; Prakash Amichand Shah vs.
State of Gujarat and Ors. AIR 1986 SC 468: .1985 (3) Suppl.
SCR 1025 - relied on
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL
Rustom Cavasjee Cooper vs. Union of India AIR 1970
857
A
SC 564: 1970 (3) SCR 530; P.. Vajravelu Mudaliar vs. The
Special Deputy Collector for Land Acquisition, West Madras
andAnr. AIR 1965 SC 1017: 1965 SCR 614; Union of India
vs. The Metal Corporation of India and Anr. AIR 1967 SC 637:
1967 SCR 255 -·stood overruled. B
lshwari Khetan Sugar Mills (P) Ltd. etc .etc. vs. The State
of U. P. and Ors. AIR 1980 SC 1955: 1980 (3) SCR 331;
State of West Bengal vs. Mrs. Bella Banerjee and Ors. AIR
1954 SC 170: 1954 SCR 558 - referred to.
c
1.3. Section 40(3)(jj) only regulates discretion of the
Area Development Authority (ADA) while making the draft
development plan. The land acquired under Section 20
read with Section 12 of the Act 1976 would need
infrastructural facility and the original plot which is D
acquired would require to be re-constituted as a final plot
and to make a building site. The provisions of the· Act
have to be read as a whole and therefore the provision
of Section 40(3)(jj)(a)(iv) for sale has to be read
inconsonance/conjointly with the other statutory E
provisions and not in isolation. The sale upto the extent
of 15% is from the total area covered under the scheme
and not in respect of every plot of land. In order to
generate financial resources for the development of
infrastructure, the saleable plot for residential, commercial F
and industrial use are allotted by the appropriate
authority. Similarly, while re-constituting the plots, final
plot is offered to the original owner for its beneficial use.
[para 30) [885-B-D]
K.L. Gupta and Ors. vs. The Municipal Corporation of G
Greater Bombay and Ors. AIR 1968 SC 303 1968 SCR 674
- followed.
Bhavnagar University vs. Palitana Sugar Mill Pvt. Ltd.
H,
858 SUPREME COURT REPORTS . [2014).11 S.C.R.
A and Ors. AIR 2003 SC 511: 2002 (4) Suppl. SCR 517 -
•
distinguished. ·
1.4. The development plan is prepared under Chapter
II and town planning scheme is made under Chapter V
8 of the 1976 Act. Therefore, they are.two different things.
The development plari is a macro plan for a vast area
wherein a town planning scheme is minor scheme within
the town~ Section 40(1) simply provides that in the making
of town planning scheme the authority has to have
C regard to the final development of the plan, if any. Thus,
the words "having regard to the development plan" in
Section 40 means that town planning scheme cannot
disregard or ignore the designationireservation made in
the development plan. Under. Section 20 of the Act, it is ·
provided that if an acquisition does not take place by
D agreement or under the Land Acquisition Act, 1894 in
respect of certain lands designated in the final
development plan forthe six purposes mentioned in sub-
section (2) of Section 12 within a period of 10 years from
the coming into force of the final .development plan, the .
E designation of the land under these clauses shall be
deemed to have lapsed. Therefore, the provision for
lapsing of the designation of the land does not take it out
of the purview of town planning scheme and such a
provision does not prevent the making of a provision in
· F a town planning scheme for any reservation specified in
Section 40(3). [para 29) [884-8-F]
1.5. Just because the authority's draft scheme also
provides for residential purposes, it does not .mean that
G the land would be used exclusively for residential
purpose and .it cannot have even small marketing place
or a small dispensary. [para 35) [889-H; 890-A]
Bhikhubhai Vithalbhai Patel vs. State of Gujarat and Anr.
AIR 2008 SC 1771: 2008 (4) SCR 1051 - referred to.
H
• . AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL
859
· 1.6. Hardship of an individual cannot be a ground to A
strike down a statutory provision for the reason that a
result flowing from a statutory provision is never an evil."
It is the duty of the court to give full effect to the statutory
provisions under all circumstances. Merely because a
person suffers from hardship cannot be a ground for not B
giving effective and grammatical meaning to every word
of the provisions if the language used therein is
unequivocal. [para 37] [890-C-D]
The Martin Bum Ltd. vs. The Corporation of Calcutta AIR
1966 SC 529: 1966 SCR 543; Tata Power Company Ltd. vs. C
Reliance Energy Limited and Ors. (2009) 16 SCC 659: 2009
(9) SCR 625; Rohitash Kumar and Ors. vs. Om Prakash
Sharma and Ors. AIR 2013 SC 30: 2012 (13) SCR 47 - relied
on.
D
2. In the transferred cases it is pre-mature to
challenge the resolution dated 16.5.2008 as it is a first
step to initiate the proceedings under the Act and the
Rules. As the authority is only dealing with the issues at
a draft stage and the applicants have ample opportunity E
to file their objections and are entitled to personal hearing
as required under Rule 26 clause (4), the matter can be
adjudicated before the· statutory authority. Therefore, it is
not proper to decide the cases on merits at such a
premature stage. More so, there is no reason to believe F
that the authorities would act arbitrarily and would not
take into consideration the grievance raised by the
applicants. [para 41-43] [891-D-E; 892-A, E]
Jilubhai Nanbhai Khachar etc.etc. vs. State of Gujarat and
Anr. etc. etc. AIR 1995 SC 142: 1994 (1) Suppl. SCR 807; G
Ashutosh Gupta vs. State of Rajasthan and Ors. AIR 2002 SC
1533: 2002 (2) SCR 649; Nagpur Improvement Trust and Anr.
vs. Vithal Rao and Ors. AIR 1973 SC 689: 1973 (3) SCR 39;
Chairman, Indore Vikas Pradhikaran vs. Mis. Pure Industrial
H
A
860 SUPREME. COURT REPORTS [2014] 11 s.C.R
Cock and Chem. Ltd. and Ors. AIR 2007 SC 2458: 2007 (6)
•
SCR 799; Shrirampur Municipal Council, Shrirampur vs.
Satyabhamabai Bhimaji Dawkher and Ors. (2013) 5 SCC 627:
2013 (2) SCR 664 - referred to.
. I
Case Law Reference:
B '
1994 (1) Suppl. SCR 807 referred to Para 16
2002 (2) SCR 649 referred to Para 17
1985 (3) Suppl. SCR 1025 relied on Para 18
c
1973 (3) SCR 39 referred to Para 20
2002 (4) Suppl. SCR 517 distinguished Para 21
2007 (6) SCR 799 referred to Para 21
D 2013 (2) SCR 664 referred to Para 21
. I
1967 SCR 65 rehed on Para 24
1954 SCR 558 referred to Para 27
E 1970 (3) SCR 530 stand overruled Para 27
1965 SCR 614 stand 1overruled Para 27
1967 SCR 255 stand overruled Para 27
1980 (3) SCR 331 referred to Para 27
F
1968 SCR 674 followed Para 33
AIR 1969 SC 634 followed para 34
2008 (4) SCR 1051 referred to Para 35
G 1966 SCR 543 relied on Para 37
. 2009 (9) SCR 625 relied on Para 37
2Q12 (13) SCR 47 relied on Para 37
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL
861
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. A
1542-1544 of 2001.
From the Judgment & Order dated 24.11.2000 in Special
Civil Application Nos. 1189/98, 4659/98 and 4494/98 of the
High Court of Gujarat at Ahmedabad. B
WITH
C.A. Nos. 1545-1550, 1551-1556 of 2001, 1864 of 2014.
T.C. Nos. 12-13 of 2010.
c
Huzefa Ahmadi, Shirish H. Sanjanwala, C.A. Sundaram,
· Harish N. Salve, Suresh Shelat, T.R. Andhyarujina, Shekhar
Naphade, Shamik Sanjanwala, Rohan Sharma, Mahesh
Agarwal, Abhinav Aggarwal, Abhinav Aggarwal,.EC. Agrawala,
Sanjay Kapur, Anmol Chandan, Lekha Vishwanath, Purvish D
Malkan, Prasenjit Keswani, Satyajit Saha, V.D. Khanna,
Preetesh Kapur, Hemantika Wahi, Jesal, Dhaval Nanavati,
Kaushal Pandya, Sangeeta Singh, Jayashree Wad, Ashish
Wad, Kanika Baweja, Anshuman Srivastava, J.S. Wad, Abjijat
P. Medh, Sheela Goel, Sumita Hazarika (foe Parekh & Co.), E
Haresh Raichura for the appearing parties.
The Judgment of the Court was delivered by
Dr. B.S. CHAUHAN, J. 1. Civil Appeal Nos.1542-44 of
~001 have been preferred challenging the impugned judgment F
and order dated 24.11.2000, passed in Special Civil
Application Nos.1189, 4494 and 4659 of 1998 by the High
Court of Gujarat at Ahmedabad, wherein the Writ Petition filed
by the respondents has been partly allowed holding that Section
40(3)(jj)(a) of the Gujarat Town Planning and Urban G
Development Act, 1976 (hereinafter referred to as the 'Act
1976') would be operative for the land other than the land
covered by Section 20(2) of the Act 1976, though upheld the
validity of Section 40(3)Gj) of the Act 1976.
H
862 . SUPREME COURT REPORTS [2014] 11 S.C.R. •
A Civil Appeal Nos.1545-50 of 2001 have been preferred
by the State of Gujarat against the same judgment raising the
grievance to the same extent.
Civil Appeal Nos.1551-56 of 2001 have been filed by the
8 Ahmedabad Urban Development Authority (hereinafter referred
to as 'AUDA') against the same judgment passed in same
cases. alongwith Special Civil Application Nos.4859, 5934,
7476 of 1998 and 4271 of 2000.
Civil Appeal No. 1864 of 2014 has been filed against the
C impugned judgment and order dated 9.10.2009 passed by the
High Court of Gujarat at Ahmedabad in Special Civil
. Application No.10912 of 2009, wherein the matter stood
disposed of in terms of the subject matter in appeals referred
to above. ·
D
In Transferred Case (C) Nos.12-13 'of 2010, .Writ Petition
Nos.2879 and 2880 of 2009 had been filed by the tenure
holders/ petitioners before the High Court of Gujarat and as the
same factual and legal issues are involved therein, the petitions
E stood transferred to this court.
2. As similar factual and legal issues are involved in all the
cases for convenience T.P. (C) Nos. 12-13 of 2010 and Civil
Appeal Nos. 1542-44 of 2001 are taken to be the leading
cases.
F , .
All these matters relate to the validity and issues of
interpretation of Section 40(3)(jj) of the Act 1976 and
application of certain statutory provisions of the Gujarat Town
Planning and Urban Development Rules, 1979 (hereinafter
G referred to as the 'Rules 1979'). The basic. question that has
been raised on behalf of the tenure-holders (Association of land
owners) is that whether the provisions contained in Sections
40(3)(jj) of the Act 1976 are ultra-vires of Articles 14, 19 and
300-A of the Constitution of India, 1950 (hereinafter referred
H
• AHMEDABAD MUNICIPAL CORPORATION v. ARMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
863
to as the 'Constitution') and have also challenged the action on A
the part of the Municipal Corporations (Ahmedabad and Surat)
for declaring the intention to frame town planning schemes by
issuing notifications, and further to hold that the action of the
Municipal Corporations to take away land of the tenure-holders
to the extent of 50% without paying any compensation as .ultra-. B
vires and further challenged the respective resolutions of the
State Government in this regard.
The main contention of the respondents before the High
Court was that by way of the impugned legislation, the
appellants have designed a circuitous method to acquire land C
without paying any amount of compensation. The ancillary
ground urged is that the land which was not acquired on
payment of compensation under Section 20 of the Act 1976
cannot again be acquired indirectly and without payment of
compensation by introducing the impugned legislation enabling D
Authority to prepare a town planning scheme and reserve the
land to the extent of specified percentage for public purposes
like roads, parks, play grounds, gardens and open spaces.
Further, as per Section 40(3)0j)(a)(iv) of the Act, 1976 the sale
of land by the Appropriate Authority for raising money for the E
purpose of providing infrastructural facilities is beyond
legislative competence being outside the purview of Entry 18
of List-II and Entry 20 of the concurrent list contained in 7th
Schedule to the Constitution. Moreover, compensation payable
under Section 82 of the Act, 1976 in respect of property or right F
injuriously affected by the scheme, on the basis of market value
calculated on the date of issue of intention to frame a scheme,
is not an adequate compensation. Further, it was not justified
under the town planning scheme or the urban· development to
permit acquisition of certain percentage of properties of citizens G
for its disposal in the hands of public authorities for the purpose
of raising its fund, even to be used for further development.
Under the Act 1976, Section 40(3)G) as it originally stood,
provided for reserving only 10 per cent in the town planning
scheme for providing housing accommodation to the members H
864 SUPREME COURT REPORTS
I
[2014] 11 S.C.R. •
A of the weaker sections. Therefore, the amendment by which the'·
said area has been increased from 10% to 15%· is not only
unwarranted but also illegal.
3. Facts and circumstances giving rise to these matters
B are as under:
A. In 1963, Ahmedabad Municipal Corporation (hereinafter
referred to as the 'AMC') prepared and submitted a
development plan under the Bombay Town Planning Act, 1964
(hereinafter referred to as "Bombay Acr) whereby the lands of
C the respondents known as the 'green belt' were kept for open
space and recreation. On 21.8.1965, the State Government
sanctioned the development plan which came into force on .:i
1.10.1965. '·
'
0 B. AMC prepared its revised development plan and
published it on 15.1.1976 whereby lands of the respondents
were reserved for "public housing".
C. The Bombay Act was replaced by the Act 1976 under
which AUDA was alone competent to draft development jJlan.
E
D. The State Government sanctioned the development
plan on 2.11.1987 which came into force on 3.12;1987 whereby'
the area known as 'green belt' was reserved for "public housing
for different government organizations".
F E. The AUDA prepared draft revised development plan
which was published on 29.11.1997. The land reserved for
"public housing for different government organizations" was de-
reserved and put under the category as "restricted residential
utility services and other uses zones".
G
F. The AUDA in exercise of the powers· under Section 21
of the Act 1976 came out with a draft revised development. plan
in the year 1998.
G. The respondents herein filed a Writ Petition before the
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD 865
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.)
Gujarat High Court challenging the draft revised development A
plan and for direction to the appellants herein to acquire their
lands as per the plan of 1987 within a period of 6 months failing
which the plan would lapse.
H. The Act 1976 was amended on 1.5.1999 and Section
B
40(3)(jj) was inserted. The writ petition was amended and the
vires of Sections 12 and 40(3)0i) of the Act 1976 were also
challenged.
I. The AUDA vide its resolution dated 5.5.1999 approved
the proposed revised development plan. Declarations were C
made in the year 2000 for making town planning schemes
covering "restricted residential utility services and other uses
zones".
J. The writ petition was partly allowed by the High Court o
vide impugned judgment and order dated 24.11.2000.
Hence, these appeals.
4. We have heard S/Shri C.A. Sundaram, Shirish H.
Sanjanwala, Suresh Shela!, Huzefa Ahmadi, learned senior E
counsel for the tenure-holders or association of farmers and S/
Shri Harish N. Salve, T.R. Andhyarujina, learned senior counsel
and Preetesh Kapur, learned counsel for the State and statutory
authorities.
F
5. All the submissions advanced by the counsel for the
respective parties are the same which had been agitated
before the High Court and reference thereof has already been
made. Learned counsel appearing for the tenure-holders have
submitted that the judgment of the High Court as far as the
validity of the statutory provision is concerned, does not require G
any interference whatsoever but earmarking of the land to the
extent of 50% without paying any compensation amounts to
expropriation and in all circumstances percentage fixed by the
statutory provisions is excessive.
H
A
866 SUPREME COURT REPORTS [2014] 11 S.C.R.
6. On the contrary, learned counsel appearing for the state
•
and statutory authorities have submitted that the judgments
impugned have made the scheme unworkable as one tenure
holder may get all infrastructure faciliiies while the adjacent
neighbour may not get any facility at ;all. The area which can
B be taken away by the authority for sale to the extent of 15%
relates to the total area covered by the scheme and not from
each and every plot.
7. In order to properly understand the dispute herein,
C reference has to be made to various provisions of the Act 1976.
The Preamble of the Act 1976 indicates that the purpose 01f the
legislation is.to consolidate and amend the law relating to the
making and execution of development plans and town planning
schemes in the State of Gujarat. Section 12 of the Act 1976
provides for proposals and reservations to be made in the
D development plan for the approval of the State Government.
8. Clause (x) of Section 2 of the Act 1976 defines
"development plan" while clause (xxvi) thereof defines "scheme".
E Section 9 of the Act 1976 provides that the Development
Authority shall prepare and submit the development plan to the
State Government for the whole or any part of the development
area in accordance with the provisions of this Act. Section 10
thereof requires that a copy of draft development plan is to be
kept open for public inspection.
F
Section 12 provides for the .contents of draft development
plan generally providing the mann.er in which the use of land in
the area covered by it shall be regulated and also indicating
the manner in which the development therein shall be carried
G out. In particular, it shall provide, so far as may be necessary,
·proposal for designating the use of the land for residential,
industrial, commercial, agricultural and recreational purposes;
for the reservation of land for public purposes, such as schools,
college and other educational institutions, medical and public
H health institutions; proposals for designation of areas for
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
867
zoological gardens, green belts, natural reserves and A
sanctuaries; transport and communications, such as roads,
highways, parkways, railways, waterways, canals and airport,
including their extension and development; proposals for water
supply, drainage, sewage disposal, other public utility
amenities and service including supply of electricity and gas; B
reservation of land for community facilities and services, etc.
Section 20 of the Act reads as under:
"(1) The area development authority or any other authority
for whose purpose land is designated in the final C
development plan for any purpose specified in clause (b),
clause (d), clause (f), Clause (k), clause (n) or clause (0)
of sub-section (2) of section 12, may acquire the land
either by agreement or under the provisions of the land
Acquisition Act, 1894. D
(2) If the land referred to in sub-section (1) is not acquired
by agreement within a period of ten years from the date
of the coming into force of the final development plan or if
proceedings under the Land Acquisition Act, 1894 (I of E
1894), are not commenced within such period, the owner
or any person interested in the land may serve a notice
on the authority concerned requiring it to acquire the land
and if within six months from the date of service of such
notice the land is not acquired or no steps are commenced ·
for its acquisitions, the designation of the land as F
aforesaid shall be deemed to have lapsed".
Section 40(3) 0) & 0i)(a) of the Act reads as under:
"0) the reservation of land to the extent of ten. percent; or G
such percentage as near thereto as possible of the total
area covered under the scheme for the purpose of
providing housing accommodation to the members of
socially and economically backward classes of people.
H
868 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A (jj) (a) the allotment of land from .the total area covered
under the scheme, to the extent of:'
(i) Fifteen percent for roads;
(ii) Five percent for parks, playgrounds, garden and open
B space
(iii) Five percent for social infrastructure such as schools,
dispensary, fire brigade, public utility place as earmarked
in the Draft Town Planning Scheme.
·1 . .
c (iv) FiftE*l percent for sale by appropriate Authority for
111Sidltntial, commercial or industrial use depending upon
the nature of development.
Provided that the percentage of the allotment of land
D specified in paragraphs (i) to (iii) may be altered
depending upon the nature of development and for the
re.sons to be recorded in writing; · ·
(b) the proceeds from the Sale of land referred to in para
E (iv) of sub-clause (a) shall be used for the purpose of
providing infrastructural facilities in the area covered under
the scheme. ·
(c) The land allotted for the purposes referred to in
paragraphs (ii) and (iii) of sub-clause (a) shall not be
F ' .
changed by variation of schemes for the purpose other
than public purpose." · ·
Section 48 of the Act 1976 defines the power of the State
Government to sanction draft scheme. Further, Section 48-A
G reads as under:
"(1) Where a draft scheme has been sanctioned by the
State Government under sub-section (2) of section 48,
(hereinafter in this section, referred to as 'the sanctioned
draft scheme'), all lands required by the appropriate
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
869
•
authority for the purposes specified in clause (c), (f), (g), A
or (h) of sub-section (3) of section 40 shall vest absolutely
in the appropriate authority free from all encumbrances.
(2) Nothing in sub-section (1) shall affect any right of the
owner of the land vesting in the appropriate authority under
B
that sub-section."
Section 77 of the Act 1976 deals with cost of scheme,
which also includes all sums payable as compensation for land
reserved or designated for any public purpose or for the
purposes of appropriate authority which is solely bene.ficial to c
the owners of the land or residents within the area of the
scheme and also includes portion of the sums payable as
compensation for land reserved or designated for any public
purpose. It also includes legal expenses incurred by the
appropriate authority in making and in the execution of the D.
scheme. Clause (f) thereof reads as under:
(f) any amount by which the total amount of the values of
the original plots exceeds the total amount of the values
of the plots included in the final scheme, eactf of such plots
E
being estimated at its market value at the date of the
declaration of intention to make a scheme, with all the
buildings and works thereon at the said date and without
reference to improvements contemplated in the scheme.
other than improvements due to alteration of its
boundaries. F
Clause (2) of Section 77 reads:
(2) If in any case the total amount of the. values of the plots
included in the final scheme exceeds the total amount of G
the values of the original plots, each of such plots being
estimated in the manner provided in clause (f) of sub-
section (1), then the amount of such excess shall be
deducted in arriving at the costs of the scheme as defined
in sub-section (1).
H
A
870 SUPREME COURT REPORTS . [2014] 11 S.C.R.
Section 79 of the Act 1976 provides for contribution
•
towards costs of scheme. ·
Section 82 of the Act 1976 reads ·as under:
Compensation in respect of property or right
B injuriously .affected by scheme'.
The owner of any property or right which is injuriously
affected by the making of a town planning scheme shall, if
he makes a claim before the Town Planning Officer within
c the prescribed time, be entitled to be compensated in
respect thereof by the appropriate authority or by any
person benefited or partly by the appropriate authority and
partly by such person as the Town Planning Officer may in
each case determine:
D Provided that the value of ~uch property or rights shall
be deemed to be its market value at the date of the
declaration of intention to make a scheme or the date of
the notification issued by the State Government under sub-
section (1) of section 43 without reference to
E improvements contemplated in the scheme, as the case
may be. ·
I
Section 84 thereof deals with the cases in which amount
payable to owners exceeds amount due froni him. As per the
F provisions of Section 84, if the owner of an original plot is not
provided with a plot in the preliminary scheme or if the
contribution to be levied from him under Section 79 is less than
the total amount to be deducted therefrom, the net amount of
his loss, shall be payable to him.
G Section 85 of the Act 1976 deals with the cases iri which
the value of the developed plot is less than the amount payable
by the owners. In case the amount which would be due to the
appropriate authority under the Act from the owner of a plot to
be included in the final scheme exceeds the value of such plot
H estimated on the assumption that till scheme has been
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. 8.S. CHAUHAN, J.)
871
completed, the owner of such plot has to make payment to A
authority of the amount of such excess within the prescribed
period.
Sub-Section (2) of Section 85 provides that on meeting
certain legal requirements, the plot included in the final scheme
B
"shall vest absolutely in the appropriate authority free from all
encumbrances but subject to the provisions of the Act".
9. Rule 22 of the Rules 1979 reads as:
(1) The compensation payable under section 45 shall be c
difference between the value of the property (inclusive of
structure) on the basis of the existing use and that on the
basis of permitted use both values being determined as
on the date of declaration of intention to prepare the
scheme. D
(2) In making the valuation on the basis of permitted use,
allowance shall be made for the expenses that may have
to be incurred in so converting the existing structures as
to make them suitable for permitted use.
(3) In case provision is made for continuance of the existing
use for a number of years taking into consideration the
future life of the structure the compensation payable shall
be limited to present value of the standing structure less
value of materials at the end of such period. F
(4) xx x
10. Form H attached to the Rules 1979 is a Form to be
filled by the Town Planning Officer while preparing the draft
planning scheme and it clearly makes it evident that "any G
person who is injuriously affected by the above town planning
scheme, is entitled to claim the damages in accordance with
Section 82 of the Act 1976".
11. Form K attached to the said Rules 1979 is also to be H
872 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A filled up and sent by the. Town Planning Officer while preparing
the final draft planning scheme as required under Section 52(3)
and it puts him under an obligation to determine and record as
. under:
B "(i) The compensation payable to you under Section 80
(ii) Amount payable by you under Section 80
(iii) Estimated amount of the increment under Section
78 .
c
(iv) Amount of incremental contribution under Section
79
(v) The compensation under Section 82
D (vi) Net amount of contribution
(vii) Net amount payable to you"
12. The aforesaid provisions read conjointly gives a clear
picture that the scheme. is just like the consolidation
E 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
F referred to as 'Act 1894') or the land taken under the provisions
of Section 40(3)(jj)(a) of the Act 1976, 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
G 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 .
.13. The main issue involved herein is whether after the
H 1
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
873
lapse of the period for reservation as per Section 20(2) of the A
0
Act 1976, can the said land be again acquired by resorting to
the provisions of Section 40 of the Act 1976. In the present
case, the State Government had sanctioned a development
plan on 2.11.1987 which came into force on 3.12.1987 wherein
the area known as the "green belt" was reserved for "public B
housing for different government organizations". The said area
was deemed to be de-reserved by virtue of the provisions of
Section 20 after the expiry of a period of 10 years. Despite the
respondents having served the six months' notice, the said land
was still not acquired by the government. It has been submitted c
on behalf of the respondents that having re.gard to the
provisions of Section 20 read with Section 40 of the Act 1976,
the said land could not be re-acquired/re-designated by framing
a town planning scheme. Section 48-A of the Act 1976 provides
for vesting of land in the appropriate authority. However, the
0
said section does not cover the requirement under Section
40(3)(jj)(a) of the Act. It has been further argued that the other
relevant provision is Section 107 of the Act 1976 which provides
that land needed for a town planning scheme shall be deemed
to be land needed for a public purpose within the meaning of
the Act 1894. Therefore, without invoking the provisions of the E
Act 1894, the said land could not be re-notified under Section
40 of the Act 1976. . ·
14. After considering all the submissions of the parties, the
High Court has recorded the following conclusions: F
(I) The contention that prescribing of various percentage
under Section 40(3)(jj)(a) of the Act 1976 amounts to excessive
legislation is rejected. The unamended clause (jj) of Section 40
provided for allotment of 10% of the land in the scheme or such G
percentage as near thereto as possible for the purpose of sale
for residential, commercial and industrial use. The present
provision as exists today has now specified various percentage
of the land to be set aside for specific purpose, i.e. 15% for
roads, 5% for parks, playgrounds etc., 5% for social
H
874 SUPREME COURT REPORTS [2014) 11 S.C.R.
A infrastructure and 15% for sale for woviding infrastructural
facilities. There has only been an increase of 5% in the
percentage of land that could be sold 'of by the appropriate
authority as compared to an increase of 30% as contended by
the respondents. The current provision now only specifies
B specific percentage of the land to be set aside for the specified
purpose which was already provided for in the Act 1976 and
there is no further reservation that is provided.
(II) Entry 18 of List II of the Constitution provides for
C legislative competence with respect to land i.e. rights in or over
the land including land improvement. Entry 20 of Concurrent List
of the Constitution deals with economic and social planning.
Therefore, the State Legislature was well within its competence
to specify the percentage of areas to be demarcated/used for
the specified purpose. Further, a mere increase of percentage
D of land to be demarcated for a specific purpose can in no way .
said to be an excessive legislation. Section 91 of the Act 1976
provides for establishment of funds· for utilization by the
appropriate authority in order to meet expenditures for the
development of land, administration of the Act and such other
E purpose as the State Government may direct. With the increase
in cost of construction, the requisite funds for development.
would naturally increase and therefore, there does not seem to
be any impediment in prescribing a higher percentage of land
that is to be sold for such purposes.
F 'I
(Ill) The respondents' claim to the benefit under Article 300-
A of the Constitution which provides for a constitutional right to
property is also stood rejected. Eac_h and every claim to
property cannot be termed as a right to property and any
G legislation prescribing a reasonable restriction over the same
is a valid exception to the said Article .
.
(IV). Even the contention of the respondents that the
compensation prescribed under Section 82 of the Act 1976
was inadequate stands rejected.
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD . 875
GREEN BELT KHEDUT MANDAL [DR. S.S. CHAUHAN, J.)
15. The aforesaid findings have been challenged by the A
State/statutory authorities as well as by the Association of land
owners to the extent the findings have been recorded against
them.
16. It is in this backdrop that we have to test the B
submissions advanced on behalf of the parties in the light of
law declared by this Court earlier on the issues involved herein.
In Jilubhai Nanbhai Khachar etc.etc. v. State of Gujarat
& Anr., etc.etc., AIR 1995 SC 142, this Court held:
c
• ... Though Articles 31 and 19(1)(f) of the
Constitution accorded to 'property' the status as a
fundamentaJ right, there emerged conflict between the
animation of the Founding Fathers and the judicial
interpretation on the word 'compensation' when private o
property was expropriated to subserve ·common good or
to prevent common detriment.. ... Concomitantly
legislature has power to acquire the property of private
person exercising the power of eminent domain by a law
for public purpose. The law may fix an amount or which E
may be determined in accordance with such principles as
may be laid therein and given in such manner as may
be specified in such law. However, such law shall not be
questioned on the grounds that the amount so· fixed or
amount determined is not adequate. The amount fixed
must not be illusory. The principles laid to determine the F
amount must be relevant to the determination of the
amount..... We are conscious that Parliament omitted
Article 31 (2) a/together. However when the State exercises
its power of eminent domain and acquires the property
of private person or deprives him of his property for public G
purpose, concomitantly fixation of the amount or its
determination be must in accordance with such principles
as laid therein and the amount given in such manner as
may be specified in such a law ..... "
H
A
876 . SUPREME COURT REPORTS [2014] 11 $.C.R. •
17. In Ashutosh Gupta v. State 'of Rajasthan & Ors.,
AIR 2002 SC 1533, this Court held:
"There must be proper pleadings and averments in the
substantive petition before the question of denial of equal
B protection of infringement of fundamental right can be
decided. There is always a presumption in favour of the
constitutionality of enactment and.the burden is upon him
who attacks it to ·show that there has been a clear
transgression of the constitutional principles. The
presumption of constitutionality stems from the wide
c power of classification which the legislature must, of
necessity possess in making laws operating differently
as regards "different groups of persons in order to give
effect to policies. It must be presumed that the legislature
. understands and correctly appreciates the need of its own
D people, that its laws are directed to problems made
manifest by experience."
18. In Prakash Amichand Shah v. State of Gujarat &
Ors., AIR 1986 SC 468, this Court relied upon the judgment of
E this Court in Zandu Pharmaceutical Works Ltd. v. G.J.
Desai, Civil Appeal No. 1034 of 1967 decided on August 28,
1969 dealing with the very provisions of the Act, wherein this
Court had observed :
"When the Town Planning Scheme comes into
F operation the land needed by a local a_uthority vests by
virtue of Section 53(a) and that vesting for purposes of
the guarantee under Article 31(2) is deemed compulsory
acquisition for a public purpose. To lands which are
subject to the scheme, the provisions of Sections 53 and
G 67 apply, and the compensation is determined only in
the manner prescribed by the Act. There are therefore
two separate provisions one for acquisition by the
State Government, and the tother in which the
·statutory vesting of land operates as acquisition for
1-1 the purpose of town planning by the local authority.
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. 8.$. CHAUHAN, J.]
877
The State Government can acquire the land under the A
Land Acquisition Act, and the loca/authority only
under the Bombay Town Planning Act. There is no
option to the local authority to resort to one or the
other of the alternative methods which result in
acquisition. Hence the provisions of Sections 53 and 67 B
are not invalid on the ground that they deny equal
protection of the laws or equality before the laws .•
(Emphasis added)
19. In Prakash Amichand Shah (Supra) this Court held: C
• ..... All his functions are parts of the social and
economic planning undertaken and executed for the ·
benefit of the community at large and they cannot be
done in isolation. When such functions happen to be
integral parts of a single plan which in this case happens D
to be an urban development plan, they have to be viewed
in their totality and not as individual acts directed against
a single person or a few persons. It is quite possible that
when statutory provisions are made for that purpose, there
would be some difference between their impact on rights E
of individuals at one stage and their impact at another
stage. As we have seen in this very Act there are three
types of taking over of lands - first under Section. 11,
secondly under Section 53 and thirdly under Section 84
of the Act, each being a part of a single scheme but each F
one having a specific object and public purpose to be
achieved. While as regards the determination of
compensation it may be possible to apply the provisions
of the Land Acquisition Act, 1894 with some modification
as provided in the Schedule to the Act in the case of . G
lands acquired either under Section 11 or under Section
84 of the Act, in the case ofJands which are needed for
the local authority under the Town Pla.nning Scheme
which authorises allotment of reconstituted plots to
persons from whom original plots are taken, it is H .
878 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A difficult to apply the provisions of the Land
Acquisition Act, 1894. The provisions of Section 32 and
the other financial provisions of the Act provide for the
determination of the cost of the scheme, the development
charges to be levied and contribution to be made by the
B local authority etc. It is only after all that exercise is d.one
the money will be paid to or demanded from the owners
of the original plots depending on the circumstances
governing each case. If in the above cantext the Act has
made special provisions under Sections 67 to 71 of
c the Act for determining compensation payable to the
owners of 'Original plots who do not get the
reconstituted plots it cannot be said that there has
been any violation of Article 14 of the Constitution. It
is seen that even there the market value of the land
taken is not lost sight of. The effect of the provisions in
D
Sections 67 to 71 of the Act has been explained by this
Court in Manekla/ Chhotalal v. M.G. Makwana, AIR
1967 SC 1373, and in State of Gujarat v. Shanti/al
Manga/das, AIR 1969 SC 634. ' .
E Thus it is seen that all the arguments based on .
Article 14 and Article 31 (2) of the Constitution against the·
Act were repelled by the Constitution Bench in the
Shanti/al Mangaldas (supra). With great respect, we·
approve of the decision of the court in this case ....... We
F do not therefore find any substance in the contention that
the Act violated Article 31 (2) of the Constitution as it
stood at the time when the Act was enacted or at any time
.
thereafter." (Emphasis added)
G 20. This Court in the said case also explained the decision
ofthis Court in Nagpur Improvement Trust & Anr. v. Vithal
Rao & Ors., AIR 1973 SC 689, wherein the High Court had
held that as the acquisition was by the State, in all cases where
the property was required to be acquired for the purposes of
a scheme framed by the Trust and such being the position, it
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
was not open to the State to acquire any property under the
879
A
provisions of the Act 1894 as amended by the Improvement
Trust Act without paying compensation on the same
parameters and the solatium also. It was, therefore, held by the
High Court that the paras 10(2) and 10(3) insofar as they added
a new clause 3(a) to Section 23 and a proviso to sub-section B
(2) of Section 23 of the Act 1894 were ultra vires as violating
the guarantee of Article 14 of the Constitution.
This Court further held:
" ..... The development and planning carried out under the C
Act is primarily for the benefit of public. The local authority
is under an obligation to function according to the Act.
The local authority has to bear a part of the expenses of
development. If is in one sense a package deal. The
proceedings relating to the scheme are not like D
acquisition proceedings under the Land Acquisition Act,
1894. Nor are the provisions of the Land Acquisition Act,
1894 made applicable either without or with modifications
as in the case of the Nagpur Improvement Trust Act,
1936. We do not understand the decision in Nagpur · E
Improvement Trust case (supra) as laying down
generally that wherever land is taken away by the
government under a separate statute compensation
should be paid under the Land Acquisition Act, 1894 only
and if there is any difference between the compensation F
payable under the Land Acquisition Act, 1894 and the
compensation payable under the statute concerned the
acquisition under the statute would be discriminatory ..... "
21. In Bhavnagar University v. Palitana Sugar Mill Pvt.
Ltd. & Ors., AIR 2003 SC 511, this Court held: G
"37. The words "so far as may be" indicate the
intention of the Legislature to the effect that by providing
revision of final development plan from time to time and
at least once in ten years, only the procedure or H
880 SUPREME COURT REPORTS [2014] 11 S.C.R. •
A preparation thereof as provided therein, is required to be
followed. Such procedural requirements must be followed .
so far as it is reasonably possible. Section 21 of the Act,
in our opinion, does not and cannot mean that the
substantial right conferred upon the owner of the land or
B the person interested therein shall be taken away. It is not
and cannot be the intention of the Legislature that which
is given by one hand should be taken away by the other.
38. Section 21 does not envisage that despite the
c fact that in terms of sub-section (2) of S. 20, the
designation of land shall lapse, the same, only because
a draft revised plan is made, would automatically give
rise to revival thereof. Section 20 does not manifest a
legislative intent to curtail or take away the right acquired·
by a land owner under S. 22 of getting the land
D
defreeied. In the event the submission of the learned
Solicitor General is accepted the same would completely
render the provisions of S. 20(2) otiose and redundant.
39. Sub-section (1) of S. 20, as noticed
E hereinbefore, provides for an enabling provision in terms
whereof the State become entitled to acquire the land
either by agreement or taking recourse to the provisions
of the Land Acquisition Act. If by reason of a revised plan,
any other area is sought to be brought within the purview
F of the development plan, evidently in relation thereto the
State will be entitled to exercise its jurisdiction under sub-
section (1) of S. 20 but it will bear repetition to state that
the same would not confer any other or further power upon
the State to get the duration of designation of land, which
G has been lapsed, extended. What is contemplated under
S. 21 is to meet the changed situation and contingencies
which might not have been contemplated while preparing
the first final development plan. The power of the State
enumerated under sub-section (1) of S. 20 does not
become ipso facto applicable in the event of issuance
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
Qf a revised plan as the said provision has been
881
A
specifically mentioned therein so that the State may use
the same power in a changed situation."
(See also: Chairman, Indore Vikas Pradhikaran v. Mis.
Pure Industrial Cock & Chem. Ltd. & Ors., AIR 2007 SC
B
2458; and Shrirampur Municipal Council, Shrirampur v.
Satyabhamabai Bhimaji Dawkher & Ors., (2013) 5 SCC
627)
22. In view of the provisions of the Act 1976 and particularly
Section 40 (3)(jj)(a)(iv), the question does arise as to whether C
selling of land provided therein maximum to the extent of 15%
is illegal; and whether on lapsing of designation under the
development plan under Section 20, can there be any fresh
reservation/designation under the town planning scheme for the
same land which is designated and whether such land if D
acquired, can only be acquired independently under the Act
1894.
23. As we have explained hereinabove that the town
planning scheme provides for pooling the entire land covered E
by the scheme and thereafter re-shuffling and reconstituting of
plots, the market value of the oriQinal plots and final plots is to
be assessed and authority has to determine as to whether a
land owner has suffered some injury or has gained from such
process. Re-constitution of plots is permissible as provided
under the scheme of the Act as fa evident from cogent reading F
of Section 45(2)(a)(b)(c) and Section 52(1 )(iii) in accordance
with Section 81 of the Act 1976. By re-constitution of the plots,
if anybody suffers injury, the statutory provisions provide for
compensation under Section 67(b) read with Section 80 of the
Act 1976. By this re-constitution and readjustment of plots, there G
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 (supra), wherein this Court
· has held that when the scheme comes into force all rights H
882 SUPREME COURT REPORTS (2014] 11 S.C.R. •
A in the original plots are extinguished, and simultaneously
therewith ownership springs in the re-constituted 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
B land in local authority takes place only ori 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
c domain.
24. In Maneklal Chhotalal (supra), re-adjustment of plots
has been approved by this Court observing as under:
"Even if, an original plot owner is allotted smaller extent
D of land in the final plot and has to pay certain amount as
contribution, having regard to the scheme and its objects,
this is inevitable and is not deprivation."
25. Thus, it is evident that in case a land owner is not
E provided with a final plot, amount of his loss would be payable
to him as required under Section 84 of the Act 1976. (It is
agreed by learned counsel for the" parties that there is not a
single instance herein where the.land owner is deprived of his
land completely and has not been given a re-constituted plot).
However, it is suggested by learned counsel for the State that
F in such an event, such tenure hol.der would be entitled for
market value of the land to be determined under the Act 1976
and the provisions of the Act 1894 woulc;l-not be applicable in
view of the judgment of this Court in Prakash Amichand Shah
(supra). Be that as it may, as there is no such instance where
G the land owner is deprived completely of his land and does not
get reconstituted plots, we do not want to proceed further with
an academic question.
26. In Shantilal Mangaldas (supra), this Court held:
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR B.S. CHAUHAN, J.]
"The provisions relating to payment of compensation and
883
A
recovery of contributions are vital to the successful
implementation of the scheme. The owner of the re-
constituted plot who gets the benefit of the scheme must
make contribution towards the expenses of the scheme;
the owner who loses his property must similarly be 8
compensated. n
The aforesaid judgment is still a good law on this aspect.
27. In view of the commencement of the 44th Amendment
of the Constitution w.e.f. 20.6.1979, whereby Articles 31(2) and C
19(1)(g) have been deleted, we do not propose to go into the
enquiry and consider the judgments in State of West Bengal
v. Mrs. 13ella Banerjee & Ors., AIR 1954 SC 170; and
Rustom Cavasjee Cooper v. Union of India, AIR 1970 SC
564. More so, the judgments in P. Vajravelu Mudaliar v. The D
Special Deputy Collector for Land Acquisitiqn, West
Madras & Anr.,AIR 1965 SC 1017; and Union of India v.
The Metal Corporation of India & Anr., AIR 1967 SC 637,
have been over-ruled by this Court in subsequent judgment.
(See: lshwari Khetan Sugar Mills (P) Ltd. etc.etc. v. The E
State ofU.P. & Ors., AIR 1980 SC 1955).
Thus, there is no fundamental right to hold property. But
the right to compensation on compulsory acquisition is still
available under the second proviso to Article 31A subject to the
limitation as specified therein. However, we need not elaborate F
. the same as the said averment is not argued before us.
28. Article 300-A of the Constitution though creates a
human right being a constitutional provision, but is not a
fundamental right. Article 300-A provides that no person can G
be deprived of his property except by authority of law. The Town
Planning Act is definitely an authority of law bywhich a person
is deprived of his property if we assume that the town planning
scheme deprives a person of his property, though it is not so
in view of the judgments of this Court in Shantilal Mangaldas H
884 SUPREME COURT REPORTS [2014) 11 S.C.R. •
A (supra) and Prakash Amichand Shah (supra).
· 29. So far as the question that upon lapsing of designation
under the development plan under Section 20 there cannot be
any reservation/designation under a town planning scheme for
the same land, is to be understood reading the provisions of
8
the Act 1976 cogently. The development plan is prepared under
Chapter II and town planning scheme is made under Chapter
V. Thereto.re, they are two different things. The development
plan is a macro plan for a vast area wherein a town planning
scheme is minor scheme within the town. Section 40(1) simply
c provides that in the making of town planning scheme the
authority has to have regard to the final development of the plan,
if any. Thus, the words "having regard to the developmentplan"
in Section 40 means that town P!anning scheme cannot
disregard or ignore .the designation/reservation made in the
D development plan.
Under Section 20 of the Act, it is provided that if an
acquisition does not take place by agreement or under the Act
1894, in respect of certain lands' designated in the final
E development plan for the six purposes mentioned in sub-
section (2) of Section 12 within a period of 10 years from the
coming into force of the final development plan, the designation
·of the. land under these clauses shall be dee.med to have
lapsed. Therefore, the provision for lapsing of the designation
F of the land does not take it out of the purview of town planning
scheme and such a provision does not prevent the making of
a provision in a town. planning scheme for any reservation ·
specified in Section 40(3). If the judgment of the High Court on
this issue is approved, the town planning scheme would be
impermissible. Thus, even after the lapse of designation of the
G land under Section 20, a town planning scheme will have to
include. the land for roads, open spaces, gardens under Section
40(3)(e), reservation of land for accommodation to members
of socially and economically backward classes of people under
Clause 40(3)0) but not for items mentioned in Section
H
• AHMEDABAD MUNICIPAL CORPORATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR B.S. CHAUHAN, J.]
885
40(3)Gj)(a) would lead to absurdity. A
30. Section 40(3)Qj) only regulates discretion of the Area
Development Authority (ADA) while making the draft
· development plan. The land acquired under Section 20 read
with Section 12 of the Act 1976 would need infrastructural
facility and the original plot which is acquired would require to B
be re-constituted as a final plot and to make a building site.
The settled legal proposition in respect of interpretation of
statute is that the provisions of the Act have to be read as a
whole and therefore the provision of Section 40(3)(jj)(a)(iv) for
sale has to be read inconsonance/conjointly with the other C
statutory provisions and not in isolation. The sale upto the extent
of 15% is from the total area covered under the scheme and
not in respect of every plot of land, In order to generate financial
resources for the development of infrastructure, the saleable
plot for residential, commercial and industrial use are allotted D
by the appropriate authority. Similarly, while re-constituting the
plots, final plot is offered to the original owner for its beneficial
use.
31. The High Court has committed an effor interpreting the E
provisions under challenge as it failed to appreciate that the
provisions of the Town Planning Scheme in Chapter-V, no
where indicate that the lands under Section 20 cannot be
subj~ct matter of the Town Planning Scheme. The interpretation
given by the High Court tantamounts to rewriting the provisions F
of the Act 1976 as the High Court has held that the land under
Section 20 cannot be the subject of Section 40(3)(jj). Section
40(3)(jj)(a) only illustrates and provides the guidance to the
authority.
32. So far as the observation made by this Court in G
Bhavnagar University (supra) is concerned, the court held
that the land which has been de-reserved under Section 20. ·
cannot be subject matter of revised development plan under
Section 20(1). However,.the issue involved in that case was in
respect of applicability of Section 40 while framing the scheme, H
886 SUPREME COURT REPORTS [2014] 11 S.C.R.
.,
A and this court had not dealt with the provisions of the scheme
under Chapter-V of the Act.
i
33. A Constitution Bench of this Court in K.L. Gupta &
Ors. v. The Municipal Corporation cit Greater Bombay &
Ors., AIR 1968 SC 303 had examined the validity of the
B provisions of Sections 9, 10, 11, 12 and 13 of the Bombay Town
Planning Act, 1954 (hereinafter referred to as the 'Act 1954')
and held as under:
"With regard to the complaint that the period of ten
c years fixed under s. 11 (3) of the Act was too long, and
an unreasonable. restriction on the rights of a land owner
to deal with his land as he pleased, it is enough to say
. that in view of the immensity of the task of the local
authorities to find funds for the acquisition of lands for
D public purp.oses, a period of ten years was not too
long.
.. .. .. .. .. .... No one can be heard to say that local authority
after making up its mind to acquire land for a public
purpose must do so within as short a period of time as
E possible. It would not be reasonable to place such· a
restriction on the power of the local authority which is out
to create better living conditions for millions of people in
a vast. area. The finances of a local authority ar~ not
unlimited nor have they the power to execute all schemes
F of proper utilisation of land set apart for public purposes
as expeditiously as one would like. They can only do this
by proceeding with their scheme gradually, by improving
portions of the area at a time, obtaining money from
persons whose lands had been improved and
G augmenting the same with their own resources so as to
be able to take up the improvement work with regard to
another area marked out for development. The period of
ten years fixed at first cannot therefore be taken to be the
ultimate length of time within w_hich they had to· complete
H their work. The legislature fixed upon this period as being
'
• AHMEDABAD MUNICIPAL CORPORATION v.AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
887
a reasonable one in the circumstances obtaining at the A
time when the statute was enacted. We cannot further
overlook the fact that modifications to the final
development plan were not beyond the range of
possibility. We cannot therefore hold that the limit of time
fixed under s. 4 read with s. 11 (3) forms anunreasonable 8
restriction on the rights of a person to hold his property.·
(Emphasis added)
...
34. In Shantilal Mangaldas (supra), a Constitution Bench
of this Court examined the scheme under the Act 1954 which
was applicable earlier to the State of Gujarat wherein with C
respect of the land situated therein, the Borough Municipality
of Ahmedabad declared its intention of making a town planning
scheme vide resolution dated 18.4.1927 under the Bombay
Town Planning Act, 1915, wherein the High Court of Gujarat had
allowed the writ petition filed by the tenure-holders. This Court D
reversed the said judgment observing as under:
·22. The following principles emerge from an
analysis of Clauses (2) and (2A): compulsory acquisition
or requisition may be made for a public purpose alone, E
and must be made by authority of law. Law which
deprives a person of property but does not transfer
ownership of the property or right to possession of
the property to the State or a corporation owned or
controlled by the State is not a law for compulsory
acquisition or requisition. The law, under the authority F
of which property is compulsorily acquired or
requisitioned, must either fix the amount of compensation
.or specify the principles on which, and the manner in
which, the compensation is to be determined and given.
If these conditions are fulfilled the validity of the law G
cannot be questioned on the plea that it does not provide
adequate compensation to the owner................
The first contention urged by Mr. Bindra cannot,
therefore, be accepted.......... H
SUPREME COURT REPORTS [2014] 11 S.C.R.
The principal argument which found favour with the
•
A
High Court in holding Section 53 ultra. vires is that when
a.plot is reconstituted and out of that plot a smaller area
is given to the owner and the remaining area is utilised
.·for public purpose, the area so utilised vests in the local
B authority for a public purpose, and since the Act does
not provide for giving compensation which is a just
equivalent of the land expropriated at the date of
extinction of Interest, the guaranteed right under
Article 31(2) is Infringed•••••••••... : ...
c There ls no vesting of the original plots in the
local authority nor transfer of the rights of the local
authority in the reconstituted plots. A part or even the.
whole· plot belonging to an owner may go to form a
reconstituted plot which may be allotted to another person,
D or may be appropriated to public purposes under the
scheme. The source of tlie power to appropriate the whole
or a part of the original plot in forming a reconstituted plot
·is statutory. It does not predicate ownership of the plot in
the local authority, and no process- actual or notional-of
E · transfer is contemplated in that appropriation. The lands
covered by the scheme are subjected by the Act to the
· power of the local authority to readjust titles, but no
reconstituted plot vests at any stage in the local authority
unless it is needed for a purpose of the authority. Even
F · Under Clause (a) of Section 53 the vesting in a local
authority of land required by it is on the coming into force
of the scheme. The concept that lands vest in the local
authority when the intention to make a scheme is notified
is against the plain intendment of the Act,.: ...... : ..... .
- . -.
G The question that falls then to be considered is
whether the scheme of the Act which provides for
adjustment ofihe market value of/and at the date of
the declaration of intention of making a sche.me
against market value of the land which goes to form
H
. .'I'
AHMEDABAD MUNICIPAL CORPORATION v.AHMEDABAD - 889
GREEN BELT KHEDUT MANDAL [DR B.S. CHAUHAN, J.]
. the reconstituted plot, if any, specifies a principle for A
determination of compensation to be given within the
meaning of Article 31(2) .............
~On the' second branch of the argument it was urged
that a provision for giving the value of land, not on the 8
. date of extinction of interest of the owner, but on the
footing of the value prevailing at the date of the
declaration of the intention to make a scheme, is not a
·provision for payment of compensation .............. .
... ... ... ... ... The method of. determining C
· · compensation in resp~ct of lands which are subject to the
_town-planning schemes is prescribed in the Town
Planning Act. There is no option under that Act to acquire
the land either under the Land Acquisition Act or under
· the Town Planning Act. Once the draft town-planning D
scheme is sanctioned, the land becomes subject to
the provisions of the Town Planning Act, and the final
town-planning scheme being sanctioned, by statutory
operation the title of the various owners is readjusted
and the lands needed for a public purpose vest in the E
local authority. Land required for any of the purposes
of a town-planning scheme cannot be acquired
otherwise than under the Act, for it is settled rule of
·· interpretation 'or statutes that when power is given under
: · a statute to do a certain thing in a certain way the thing F
. must be done in that way or not at all .................. •
(Emphasis added) ·
· :; 35. Thus, we do not find any force in the submissions made ·
on behalf of the tenure-holders for the simple reason that after
the judgment in Bhikhubhai Vithalbhai Patel v. State of G
Gujarat & Anr., AIR 2008 SC 1771, it was not permissible for
· the statutory authorities to bring any scheme whatsoever for the ·
reason that as per that judgment also, land could be used for
residential purposes and the authority's draft scheme also ...
provides for residential purposes~That does not mean that it H
890 SUPREME COURT REPORTS [2014] 11 S.C.R. ••
A would be used exclusively for residential purpose and it cannot
have even small marketing place or a small dispensary.
36. Section 40 of the Act 1976 contains the words "regard
being had" and thus it suggests that while the condition
B specified therein are to be taken into consideration they are
only a guide and not fetters upon the exercise of power.
•
37. It is a settled legal proposition that hardship of an
individual cannot be a ground to strike down a sta~utory
provision for the reason that a result flowing from a statutory
C provision is never an evil. It is the duty 9f the court to give full
effect to the statutory provisions under all circumstances. Merely
because a person suffers from hardship cannot be a ground
for not giving effective and grammatical meaning to every word
of the provisions if the language used therein is unequivocal.
o (See: The Martin Burn Ltd. v. The Corporation of Calcutta,
AIR 1966 SC 529; Tata Power Company Ltd. v. Reliance
Energy Limited & Ors., (2009) 16 SCC 659; and Rohitash
Kumar & Ors. v. Om Prakash Sharma & Ors., AIR 2013 SC
30).
E 38. The interpretation given by the High Court runs contrary
.to the intention under the scheme and may frustrate the scheme
itself as in the pockets left out in the scheme the basic
amenities may not be available. The result would be that a
portion of the land would be left without infrastructural facility
F while the adjacent area belonging to, neighbours would be
provided infrastructural facility.
39. In view thereof, we are of the considered opinion that
the High Court has recorded an erroneous finding that if a
designation lapses under Section 20, the land cannot be again
G reserved in a town planning scheme, and further if the land
cannot be acquired under Section 20 for want of capacity to·
pay any compensation under the Act 1894, it cannot be allowed
to be acquired indirectly ori lesser payment of compensation
as provided under the Act 1976. Thus, t~e judgment of the High
H Court to that extent is not sustainable in the eyes of law.
• . AHMEDABAD MUNICIPAL CORPoRATION v. AHMEDABAD
GREEN BELT KHEDUT MANDAL [DR. B.S. CHAUHAN, J.]
891
40. In the transferred cases, the resolution dated 16.5.2008 A
providing the extent of taking over the land to 50% has been
challenged on the ground that in other similar schemes in
Vadodara, the maximum land taken by the State/Authority had
been only upto 30%. Therefore, the deduction to the extent of
50% of the total land of a tenure-holder is illegal acquisition or B
amounts to expropriation and not acquisition. It is further.
submitted by Shri Huzefa Ahmadi, learned senior counsel
appearing for .the petitioners in transferred cases that in case
of non-agricultural land, the deduction may be upto 20% and
for agricultural land it may be upto 30%. Shri Ahmadi has placed C
a very heavy reliance on a chart filed by him showing that in
other similar cases, a very lesser are~ had been deducted by .
the State/Authority and in the instant case 15% area had been·
proposed for sale without drawing the balance sheet. In such
a fact-situation, the cases have to be allowed.
D
41. On the contrary, Shri Preetesh Kapur appearing for the
respondents has submitted that it is pre-mature to challenge
the resolution dated 16.5.2008 as it is a first step to initiate the
proceedings under the Act and the Rules. The draft scheme
issued under Section 48 of the Act 1976 empowers the State E
Government to sanction a draft scheme aria clause (3) thereof
provides that if the State Government sanctions the scheme, a
notification shall be issued stating at what place and time the
draft scheme shall be open for the inspection of the public after
which the procedure prescribed under Sections 50 and 51
would be followed. At that stage Rule 26 which provides that F
for the purpose of preparing the preliminary scheme and final
scheme, the Town Planning Officer shall give notice in Forin 'H'
of the date on which he will commence his duties and shall state
the time as provided in Rule 37 within which the owner of any
property or right which is injuriously affected by the making of G
a scheme would be entitled under Section 82 to make a claim
before him. Such notice should be published in the official
gazette also and the law further requires the filing of the
objections and the personal hearing to such person who would
be adversely affected. H
A
892 SUPREME COURT REPORTS [2014] 11 S.C.R.
42. In the instant Transferred Case, as the authority is only
•
dealing with the issues at a draft stage and the applicants have
ample opportunity to file their objections and are entitled to
personal hearing as required under Rule 26 clause (4), the
matter can be adjudicated before the statutory authority.
B Therefore, in view of the above, we are of the considered
opinion that the apprehensions raised by the applicants at this
stage are pre-mature. Admittedly, the applicants have filed their
objections raising their grievance and they had also been given
the personal hearing by the statutory authorities on all
c permissible, facfual and legal grounds. The learned counsel .
. appearing for the State/Authorities has submitted that in case
the applicants are not satisfied and make fresh objections
within 30 days from today, they would be provided a fresh
opportunity of hearing. However, it is too early to anticipate as
D what order would be passed on their objections. In case, they
are aggrieved by the order passed after hearing their
objections, they have a statutory right to approach the
appropriate forum challenging the same.
43. In view of the above, we do not think it proper to decide
E a
the cases on merits at such premature "stage. More so, there
is no reason to believe that the authorities would act arbitrarily
and would not take into consideration the grievance raised by
the applicants.
F 44. In view of the above, Civil Appeal Nos.1542-44 of2001,
1545-50 of 2001 and 1551-56 of 2001 are allowed: The
. judgment impugned therein are set aside to the extent
hereinabove. Civil Appeal No.1864 of 2014 and Transferred
Case (C) Nos.12-13 of 2010 are dismissed. However, it is
G clarified that any observation made herein in the transferred
cases would not adversely affect either of the parties. No order
as to costs.
Kalpana K. Tripathy Matters disposed of.
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