Supreme Court of India
PRAKASH AMICHAND SHAHversusSTATE OF GUJARAT
- Citation
- 1981 INSC 126
- Decided
- 24 July 1981
- Disposal
- Dismissed
- Bench
- A C GUPTA
Holding
The Town Planning Officer's determination of compensation is not appealable under the Bombay Town Planning Act, 1954.
Summary
The Surat Municipal Corporation declared its intention to make a town planning scheme under the Bombay Town Planning Act, 1954, which included land leased by Prakash Amichand Shah. The Town Planning Officer awarded compensation for the loss of Shah's lease, which Shah contested as inadequate and appealed to the Board of Appeal. The Board dismissed the appeal as non‑maintainable, a decision upheld by the Gujarat High Court. The Supreme Court examined whether the Officer's determination of compensation fell within any of the appealable clauses of section 32(1) – specifically clauses (viii) and (xiii) – and interpreted the meaning of “injurious affection” under section 69. It held that the increment under clause (viii) relates only to the difference in value of the final plot, not the original plot, and that land acquired for the scheme is not “injuriously affected” within the meaning of section 69. Consequently, the compensation decision was not appealable, and the High Court’s order was affirmed.
Issues considered
- The decision of the Town Planning Officer on compensation – whether it is appealable under clause (viii) of section 32(1) of the Bombay Town Planning Act, 1954
- Whether the decision is appealable under clause (xiii) of section 32(1) concerning compensation for property "injuriously affected" under section 69
- The interpretation of "injurious affection" in the context of land acquired for a town planning scheme
- The applicability of section 71 for owners not allotted a reconstituted plot
Legislation cited
- Bombay Town Planning Act, 1954s. 32, s. 33, s. 34, s. 53, s. 64, s. 65, s. 66, s. 67, s. 68, s. 69, s. 71
- Gujarat Municipalities Act, 1973
- Land Acquisition Act, 1894s. 23
Subjects
Town planning schemeCompensationAppealabilityInjurious affectionIncrementReconstituted plotBombay Town Planning ActLand Acquisition ActConstitutional validity
Judgment
81 A
y
PRAKASH AMICHAND SHAH
v.
STATE OF GUJARAT
8
July 24, 1981
[A.C. GUPTA AND A.P. SEN, JJ.]
Bombay Town Planning Act, 1954-Sections 32, 33, 34, 65 and 69-Scope of.
Words and phrases-" injurious affection"-Meaning of. c
The Bombay Town Plan·ning Act, 1954 (which was made applicable to the
State of Gujarat) provides for the compulsory acquisition of land and payment of
compensation for the Jand so acquired for the development or re-development
or improvement of the entire area within the jurisdiction of a local authority
such as a municipal corporation or a municipality. The To\\'Il Planning Scheme
prepared under the Act may make provision for laying out new streets or roads, D
allotment or reservation of land for roads, open spaces and such other matters
not inconsistent with the objects of the Act. Before proceeding to acquire any
land for town planning purposes, a local authority, by resolution, must decJare
its intention to make a town planning scheme and publish it in the manner
prescribed. The draft scheme may contain proposals such as to form a re~
constituted plot by the alteration of the boundaries of an original plot, to
form a reconstituted plot by the transfer, wholly or partly, of the adjoining E
land, to allot a plot to any owner dispossessed of a land in furtherance of the
scheme. Any person affected by the scheme may communicate to the local
authority concerned any objection relating to such scheme. The scheme is then
forwarded to the State Government for the requisite sanction.
The scheme of the Act envisages the appointment of a Town Planning F
Officer and constitution of a Board of Appeal. It is the duty of the Town
Planning Officer to draw up a final scheme in accordance with the draft scheme.
When the final scheme comes into force all lands required by the local authority
shall vest absolutely in that authority free from all encumbranc('s and a11 rights
in the original plots which have been reconstituted shall determine and the
reconstituted plots shall become subject to the rights settled by the Town
Planning Officer. G
Seclion 64 (I) enumerates the sums payable or spent and the expenses
incurred by the local authority which are to be included in the costs of a town
planning scheme.
Under section 65 increment means the amount by which at the date of the
declaration of intention to make a scheme the market value of a final plot cal- H
culated on the basis as if the improvement contemplated in the scheme had
stood completed on that date. Provision is made in section 67 to make adjust-
82 SUPREME COURT REPORTS [1982] ! s.c.R.
A ment between the rights to compensation for loss of land suffered by the owner
and the liability to make contribution to the finance of the scheme. Compensa~
tion payable to any owner for loss of lands has to be determined on the basis of
the market value of the land at the date on which the declaration of intention to
make a scheme was made. Section 69 contemplates that the owner of any
property or right which is injuriously affected by the n1aking of a town planning
scheme shall be entitled to obtain con1pensation from the local authority or from
B any person bona fide or partly from such person as the Town Planning Officer
may in each case determine.
Section 32 enumerates duties of the Town Planning Officer and section 33
provides that except in matters arising out of cluses (v}, (vi), (vii), (ix), (x) and
(xiii) of section 32 (1) every decision of the Town Planning Officer shall be final
and conclusive and binding on all persons. An appeal from the decision of the
c Town Planning Officer under the six clauses mentioned in section 33 lies to the
Board of Appeal.
The Surat Municipal Corporation declared its intention to make a town
planning scheme under section 22 of the Bombay Town Planning Act, 1954.
The draft scheme published included an area of 1.37 lac square meters of which
the appellant was the lessee.
I)
Dissatisfied with the compensation awarded to him by the Town Planning
Officer the apportionment of the compensation between the lessor and lessee and
the propriety of reserving such a large area of land for the scheme the appe1Jant
preferred an appeal under section 34 read with section 32 (1) of the Act to the
Board of Appeal. The Board rejected the appeal as being not maintainable on
the ground that the Act did not provide an appeal from a decision of the Town
]~ Planning Officer on matters dealt with by him in the impugned order.
Agreeing with the Board of Appeal the High Court dismissed the appellant's
writ petition.
In the appeal to this court it was contended on behalf of the appellant
that the Town Planning Officer's decision was appealablc under clause (viii) or
F clause (xiii) of section 32(1) because he has a duty to calculate the increment to
accrue in respect of each plot included in the final scheme in accordance
with the provision of section 65.
•
Di~missing the appeal,
HELD : The High Court was right in holding that the decision of the
G Town Planning Officer determining the amount of compensation in the appel-
lant's case was not appealable. [ 96 F ]
The decision of the Town Planning Officer is final and conclusive in all
matters referred to in the various clauses of section 32 (I) except those men-
tioned in clauses (v), (vii), (viii), (ix), (x) and (xiii). [ 94 E]
H
The increment referred to in section 65 is the difference in the nlarket value
of the same final plot with the improvements and \Vithout the improvements on
PRAKASH AMICHAND V. GUJARAT 83
the date of the declaration of intention to make a scheme. The value of the A
original plot does not arise for consideration under clause (viii). Form B referred
to in clause (v) of rule 17 of the Bombay Town Planning Rules, 1955 makes it
clear that the increment is the difference in value of the same final plot in its
developed and on-developed condition. This form keeps the valuation of the
original plot distinct from that of the final plot. The appellant's case cannot
fall under clause (viii) of section 32. [94 G-99 BJ
B
What is contemplated by section 69 is that the property or right which is
injuriously affected by the making of a town planning scheme is a property or
right other than that acquired for the purposes of the scheme. The property
or right affected remains with the owner who is entitled to compensation for
such injurious affection. When under the Act a plot of land is taken for the
purposes of a town planning scheme it cannot be said that that land itself is
injuriously affected. [95 C-E] C
There is no compelling reason for restructuring clause (xiii) suggested by
the appellant. Taking acquisition of land to mean ·'injurious affection" of
the land acquired would be inconsistent with the entire scheme of the Act.
[95 F]
In determining the amount of compensation awarded for lctnd acquired
under the Land Acquisition Act, that Act requires the Court to take into con-
D
sideration the damage sustained by the "person interested" by reason of the
acquisition injuriously affecting his other property." A "person interested"
means a person claiming an interest in compensation to be made on account of
the acquisition of land under the Land Acquisition Act and the damage is for
injurious affection of some property other than the land acquired. There is
nothing in the Acl to suggest that the generally accepted meaning of the expres-
sions "injurious affection" used in the Land Acquisition Act should be construed E
differently in this Act. [95 G-96 B]
The owner of an original plot who is not provided with a plot in the
final scheme gets his right to compensation from section 71. The principle for
determining the compensation is the same whether an owner of land is given a
reconstituted plot or not. Compensation is payable on the basis of the market
value of the plot at the date of declaration of the intention to make a scheme. F
Jn the appellant's case it would be the value of the original plot and not the
final plot. In determining the difference under section 32 ( 1) (iii) the Town
Planning Officer has to find out the market value of each of the original plots at
the dale of the declaration of intention to make a scheme. The Act contains
necessary provisions for estimating the compensation payable to an owner of
land who has not been given a reconstituted plot. (96 C-E]
G
CivlL APPELLATE JURISDICTION : Civil Appeal No. 1224 of
1977.
Appeal by special leave from the judgment and order dated the
3rd September, 1976 of the Gujarat High Court in Special Civil H
Appln. No. 1501of1974
84 SUPREME COURT REPORTS [1982] l S.C.R,
A F S. Nariman, Dr. Y.S. Chitale, K.S. Nanavatl, C.R. Gandhi,
P.H. Parekh and Miss Vineeta Caprihan for the Appellant.
Soli J. Sorabjee, G.N. Desai and M.N. Shrojj· for Respondent
No. 1
B G.N. Desai, Prashant G. Desai and S.C. Patel for Respondent
No. 2.
S.K. Dholakia and R.C. Bhatia for Intervener-Surat Municipality.
The Judgment of the Court was delivered by
....
I''
GUPTA J. On June 26, 1965 the Surat Municipal Corporation,
then called Surat Borough Municipality, declared its intention to
make a town planning scheme under section 22 of the Bombay Town
Planning Act, 1954 (hereinafter referred as the Act). This was
])
Town Planning Scheme Surat No. 8 (Umarwada). On July 4, 1967
a draft scheme was published which included among other lands an
area admeasuring 1,37,961 sq. meters of which appellant as Karla
of a Hindu undivided family was the lessee. On May 10, 1968
Government of Gujarat granted sanction to the draft scheme.
Before the Town Planning Officer the appellant claimed compensa-
tion for deprivation of his right in the land at Rs. 50 per sq. yd .
.E
By his order made on November 4, 1971 the Town Planning Offi-
cer awarded compensation to the appellant at the rate of Rs. 2.40 p.
per sq. mt.; the total compensation awarded was Rs. 3,31,455.
Not satisfied with the decision of the Town Planning Officer
the appellant preferred an appeal. Section 34 read with section
F
32(1) of the Act provides an appeal from the decision of the Town
Planning Officer on certain specified matters to a Board of Appeal.
-
Before the Board of Appeal the appellant reduced his claim to
Rs. 9.50 p. per sq. mt. The appellant's grievance was that the
compensation awarded was inadequate and further that the apportion-
ment of compensation between the lessor and the lessee was not
proper. He also questioned the propriety of reserving such a large
G
area of land for the scheme. The Board of Appeal held that the
appeal was not maintainable as the Act did not provide an appeal
from a decision of the Town Planning Officer on matters dealt with
by him in his order dated .November 4, 1971. The appellant then
H challenged the order of the Board of Appeal before the Gujarat
High Court by filing a writ petition in which certain provisions of
the Act were also challenged as unconstitutional and it was claimed
PRAKASH AMICHAND v. GUJARAT (Gupta, J.) 85
that the town planning scheme was consequently invalid. The A
Gujarat High Court dismissed the writ petition agreeing with the
Board of Appeal that the appeal was incompetent. The constitutional
questions raised in the writ petition could not be decided as
Emergency was then in force in the country and rights conferred
by Articles 14,19 and 31 of the Constitution on which the appellant's
contentions were based remained suspended at the time. The High B
Court also relied on the decision of this Court in State of Gujarat v.
Shri Shanti/a/ Mango/dos(') which had upheld the validity of the
Act.
- The appeal before us is by special leave. Mr. Nariman for
the appellant submitted that in case we held that the appeal preferred
c
by his client before the Board of Appeal was maintainable he would
not press the grounds questioning the constitutional validity of the
Act at this stage and the matter should then go back to the Board
of Appeal for a decision on the adequacy of the Compensation; if
however we found that the Board of Appeal was right in holding
D
that the appeal was not maintainable, he would then urge the grounds
challenging the validity of the Act.
The question is whether the order of the Town Planning
Officer determining the amount of compensation payable to the
appellant falls within any of the appealable clauses of section 32(1). E
To be able to answer the question it will be necessary to examine
the various clauses of section 32(1) and also certain other provisions
of the Act. The scheme of the Act has been analysed by this Court
in State of Gujarat v. Shanti/al Mangaldas (supra) and earlier in
- Mweklal Chhottalal and others v. M.G. Makwana and others; (') we
will not attempt another comprehensive survey of all the provisions
of the Act but refer to those of them which have some bearing on
F
• the question that falls to be decided. Mr. Nariman drew our notice
to the decision of this Court in State of K"rnataka v. Shri Ranganatha
Reddy (3) where Untwalia, J, speaking for the court said at page 652
of the report that in Rustom Cavasjie Cooper v. Union of lndia, (')
this Court apparently seeking to explain Shanti/a/' s case had "in G
substance" overruled the decision. Even if Shanti!a/'s case was
(I) [1969] 3 SCR 34!.
(2) (1967] 3 SCR 65. H
(3) (1968] 1 SCR 641.
(4) [I 970) 3 SCR 530.
86 SUPREME COURT REPORTS (1982] 1 S.C.R.
A overruled, that was on another point and the analysis of the scheme
of the Act made in Shanti/a/ cannot he questioned.
The long title of the Act states that it is an "Act to consolidate
and amend the law for the making and execution of town planning
schemes". The Act has been made applicable to the State of
B Gujarat. It is an Act providing for compulsory acquisition of land
and payment of compensation for the land taken. Some of the
terms and expressions defined in section 2 of the Act are relevant.
Section 2 (2) defines "development Plan" as meaning a plan for the
development or redevelopment or improvement of the entire area
within the jurisdiction of a local authority prepared under section 3.
c Section 3 requires every local authority to carry out a survey of the
area within its jurisdiction and prepare and publish a development
plan and submit it to the State Government for sanction. Sub·
section (4) of section 2 defines local authority as a municipal corpora-
tion constituted under the Bombay Provincial Municipal Corporation
Act, 1949 or a municipality constituted or deemed to be constituted
D under the Gujarat Municipalities Act, 1973. Section 2 (9) defines
"reconstituted plot" as a plot which is in any way altered by the
making of a town planning scheme. Chapter III of the Act provides
for the making of town planning schemes. Sub-section (2) of
section 18 which occurs in this chapter states that a town planning
scheme may make provisions for any of the matters specified in
E clauses (a) to (k) of the sub-section. These matters include laying
out of land, reclamation of unhealthy areas, laying out new streets
of roads, construction and removal of buildings, bridges and other
structures, providing for drainage, lighting and water supply, allot-
ment or reservation of land for roads, open spaces, schools, markets
F
and public purposes of all kinds. Clause (1) says that apart from
the matters specified, the town planning scheme may provide for
"such other matter not inconsistent with the objects of this Act as
-
may be prescribed''.
Chapter IV which contains section 21 to section 30 bear_s the
heading "Declaration of Intention to Make a Scheme and Making
G of a Draft Scheme". Under section 22 a local authority may by
resolution declare its intention to make a town planning scheme and
is required to publish the scheme in the prescribed manner and
despatch a copy thereof to the State Government. Section 23 {l)
provides that following the declaration of intention to make a
H scheme, the local authority shall make a draft scheme for the area
PRAKASH AMJCHAND v. GUJARAT (Gupta, J.) 87
in respect of which the declaration has been made and publish it in A
the prescribed manner. Section 25 mentions the particulars that a
draft scheme shall contain; they include among other things,-the
area, ownership and tenure of each original plot; the extent to which
it is proposed to alter the boundaries of original plots; and an
estimate of the nett cost of the scheme to be borne by the local
authority. Sub-section (I) of section 26 says that in the draft scheme B
the size and shape of every reconstituted plot shall be determined;
as far as possible, to render it suitable for building purposes and
where the plot is already built upon, to ensure that the building
complies with the provisions of the scheme as regards open spaces.
- For the purpose of sub-section {!) the draft scheme may contain
proposals which are enumerated in clauses (a) to (e) of sub-section
(2) of the section. We may here refer to clauses (a), (b} and {d):
c
"(a) to form a reconstituted plot by the alteration of the
boundaries of an origi'1al plot;
(b) to form a reconstituted plot by the transfer wholly or D
partly of the adjoining lands;
(c)
{d} to allot a plot to any owner dispossessed of land in
furtherance of the scheme. E
(e)
Under section 27, within one month from the date of publication
of the draft scheme, any person affected by such scheme may com·
municate in writing to the local authority any obj~ction relating to
such scheme which the local authority has to consider. Section F
28 (I) requires the local authority to submit the draft scheme toge-
ther with the objections to the State Government and at the same
time apply for its sanction. Under sub-section (2) the State Govern-
ment may within six months from the date of the submission of the
draft scheme either sanction such scheme with or without modifica-
tions and subject to such conditions as it may think fit to impose or G
refuse to give sanction.
Chapter V which includes section 31 to section 43 provides for
the appointment of the Town Planning Officer and constitution of
H
the Board of Appeal. Within one month from the date on which
the sanction of the State Government to the draft scheme is
88 SUPREME COURT REPORTS [1982] 1 S.C.R.
A published, the State Government is required under section 31 (I) to
appoint a Town Planning Officer. The duties of the Town Planning
Officer are enumerated in section 32 (1). The provisions of sections
32, 33 and 34 have a direct bearing on the question of appealability
of the Town Planning Officer's decision, but we think it would be
more helpful for appreciating the contentions raised on behalf of the
B appellant if we referred to certain other provisions of the Act before
turning to the aforesaid section in Chapter V. We need only mention
here that drawing up the final scheme in accordance with the draft
scheme is one of the duties of the Town Planning Officer who is
required to forward the final scheme to the State Government for
sanction. In Chapter VI section 53 is the only relevant provision.
c Section 53 lays down :
"On the day on which the final scheme comes into
-
force:-
(a) all lands required by the local authority shall, unless
D it is otherwise determined in such scheme, vest absolu-
tely in the local authority free from all encumbrances;
(b) all rights in the original plots which have been re-
constituted shall determine and the reconstitued plots
shall become subject to the rights settled by the Town
Planning Officer'.
E ,
Chapter VIII deals with "Finance". It contains, inter alia, provisions
specifying the principles on which compensation for the land taken
is to be determined. This chapter includes section 64 to section 78.
Section 64 (I) enumerates in clauses (a) to (f) the sums payable or
spent and the expenses incurred by the local authority which are to
F be included in the costs of a town planning seheme. Clause (d)
mentions the sums payable as compensation for land reserved or
designated for any public purpose or purposes of the local authority.
Clause (f) of section 64 (1) reads as follows:
G "any amount by which the total of the values of the
original plots exceeds the total of the values of the plots
included in the final scheme, each of such plots 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 that date and without references to
H
improvements contemplated in the scheme other than
improvements due to the alteration of its boundaries."
PRAKASH AMICHAND V. GUJARAT (Gupta, J.) 89
Sub-section (2) of section 64 provides: · A
"if in any case the total of the values of the plots
included in the final scheme exceeds the total of the values
of the original plots, each of such plots being estimated in
the manner provided in clause (f} of sub-section (I), then
the amount of such excess shall be deducted in arriving at B
the costs of the scheme as defined in sub-section (l)."
Section 65 explains the meaning of increment for the purposes of
the Act as follows :
- "For the purposes of this Act the increments shall be
deemed to be the amount by which at the date of the decla-
ration of intention to make a scheme the market value of
c
a plot included in the final scheme estimated on the assump-
tion that the scheme has been completed would exceed at
the same date the market value of the same plot estimated
without reference to improvements contemplated in the D
scheme:
Provided that in estimating snch values the value of
buildings or other works erected or in the course of erection
on such plot shall not be taken into consideration."
E
Section 66 (1) states that the costs of the scheme shall be met wholly
or in part by a contribution to be levied by the local authority on
each plot in the final scheme calculated in proportion to the incre-
ment which is estimated to accrue in respect of such plot by the
Town Planning Officer. Under sub-section (2) of section 66 the
- "owner of each plot included in the final scheme shall be primarily
liable for the payment of the contribution leviable in respect of such
F
plot". Under section 67 the amount by which the total value of the
plots in the final scheme with all the buildings and works thereon
allotted to a person falls short of or exceeds the total value of the
original plots with all the buildings and works thereon of such person
shall be deducted from or added to, as the case may be, the contri· G
butions leviable from such person, each of such plots being estimated
at its market value at the date of the declaration of intention to
make a scheme without reference to improvements contemplated in
the scheme other than improvements due to the alteration of its
boundaries. As Shah J., speaking for the Court in State of Gujarat H
v. Shanti/al Mangaldas and others observed: "(Section 67) is intended
to make adjustments between the right to compensation for loss of
SUPREME COURT REPORTS [1982] J S.C.R.
A land suffered by the owner, and the liability to make contribution
to the finances of the scheme". Section 69 deals with the compensa-
tion payable in respect of any property or right which is injuriously
affected by the making of a town planning scheme. The section says:
"The owner of any property or right which is
B injuriously affected by the making of a town planning
scheme shall, if he makes a claim before the Town Planning
Officer within the prescribed time, be entitled to obtain
compensation in respect thereof from the local authority or
from any person benefited or partly from the local authority
c and partly from such person as the Town Planning Officer
may in each case determine. -
Provided that the value of such property or right shall
be held to be its market value at the date of the declaration
of intention to make a scheme or the date of a notification
under sub-section (I) of section 24 without reference to
D improvements contemplated in the scheme".
Section 71 deals with the case of an owner of land who is not given
a plot in the final scheme and also provides for a case where the
amount payable to an owner exceeds the amount due from him.
Section 71 is as follows:
E
"If the owner of an original plot is not provided with
a plot in the final scheme or if the contribution to be levied
from him under section 66 is less than the total amount to
be deducted therefrom under any of the provisions of this
F
Act, the net amount of his loss shall be payable to him by
the local authority in cash or in such other way as may be
agreed upon by the parties".
-
The appellant in the present case was not provided with a plot in
the final scheme. Section 87 in Chapter TX empowers the State
Government to make rules consistent with the provisions of the Act
G to provide for all matters not specifically indicated therein.
The effect of the final scheme coming into force has been
summarized by Shah J., in Shanti/a/' s case; we may quote here the
following extract from page 349 of the report:
H
"On the coming into force of the scheme all lands
which are required by the local authority, unless otherwise
PRAKASH AMICHAND v. GUJARAT (Gupta, J.) 91
determined in the scheme, by the operation of s. 53 (a) A
vest absolutely therein free from all encumbrances. The
result is that there is a complete shuffling up of plots of
land, roads, means of communication, and rearrangement
thereof. The original plots are re-constituted, their shapes
are altered, portions out of plots are separated, lands
belonging to two or more owners are combined into a single B
plot, new roads are laid out, old roads are diverted or
closed up, and lands originally belonging to private owners
are used for public purposes i.e. for providing open spaces,
green belts dairies etc. In this process the whole or parts
of a land of one person, may go to make a reconstituied
c
- plot, and the plot so reconstructed may be allotted to
another person and the lands needed for public purposes
may be earmarked for those purposes.
The re-arrangement of titles in the various plots and
reservation of lands for public purposes require financial
adjustments to be made. The owner who is deprived of D
his land has to be compensated, and the owner who obtains
a re-constituted plot in surroundings which are conducive
to better sanitary living conditions has to contribute towards
the expenses of the scheme. This is because on the making
of a town planning scheme the value of the plot rises and
a part of the benefit which arises out of the unearned rise E
in prices is directed to be contributed towards financing of
the scheme which enables the residents in that area to more
amenities, better facilities and healthier living conditions ...
Under the Act the compensation payable to an owner for loss
of land has to be determined on the basis of the market value of F
the land at the date on which the declaration of intention to make a
scheme was made. On the question whether the Act specifies a
principle of compensation, it is observed in Shanti/a/' s case at page
357 of the report :
"It is true that under the Act the market value of the G
land at the date of declaration of intention to make a scheme
determines the amount to be adjusted, and that is the
guiding rule in respect of all lands covered by the scheme.
The High Court was, in our judgment, right in holding that
enactment of a rule determining payment or adjustment of H
price of land of which the owner was deprived by the
92 SUPREME COURT REPORTS [1982] I S.C.R.
A scheme estimated on the market value on the date of
declaration of the intention to make a scheme amounted
to specification of a princip:e of compensation within the
meaning of Art, 31 (2). Specification of principles means
laying down general guiding rules applicable to all persons
_or transactions governed thereby. Under t]le Land Acquisi-
B tion Act compensation is determined on the basis of
"market value" of the land on the date of the notifica-
tion under s.4 (I) of that Act. That is a specification of
principle. Compensation determined on the basis of market
value prevailing on a date anterior to the date of extinc-
tion of interest is still determined on a principle specified.
c Whether an owner of land is given a reconstituted plot
or not, the rule for determining what is to be given as
-
recompense remains the same. It is a principle applicable
to all cases in which by virtue of the operation of the Town
Planning Act a person is deprived of his land whether in
whole or in part".
D
We may now turn to sections 32, 33 and 34 occuring in chapter
V. It may be recalled that the appellant's land was taken for pur-
poses of the scheme but he was not given a reconstituted plot.
Section 32 (I) which enumerates the duties of the Town Planning
Officer is set out below:
E
"32 (I) In accordance with the prescribed procedure
the Town Planning Officer shall
(i) after notice given by him in the prescribed manner,
define and demarcate the areas allotted to, or reserved,
F for a public purpose or purpose of the local authority
and the reconstituted plots;
(ii) after notice given by him in the prescribed manner,
determine, in the case in which a reconstituted plot is
to be allotted to persons in ownership in common, the
G shares of such persons;
(iii) fix the difference between the total of values of the
original plots and the total of the values of the plots
included in the final scheme, in accordance with the
H provisions contained in clause (f) of sub-section (I) of
section 64;
PRAKASH AMICHAND v. GUJARAT (Gupta, J.) 93
(iv) determine whether the areas used, allotted or reserved A
for a public purpose of the local authority are beneficial
wholly or partly to the owners or residents 'Vithin the
area of the scheme;
(v) estimate the portion of the sums payable as compensa-
tion on each plot used, allotted or reserved for a public B
purpose or purpose of the local authority which is
beneficial partly to the owners or residents within the
area of the scheme and partly to the general public,
which shall be included in tbe costs of the scheme;
- (vi) calculate the contribution to be levied on each plot
used, allotted or reserved for a public purpose or pur-
pose of the local authority which is beneficial partly
c
to the owners or residents within the area of the scheme
and partly to the general public;
(vii) determine the amount of exemption, if any, from the
D
payment of the contribution that may be granted in
respect of plots exclusively occupied for the religious
or charitable purposes;
(viii) estimate the increment to accrue in respect of each
plot included in the final scheme in accordance with
the provisions contained in section 65; E
(ix) calculate the proportion in which the increment of the
plots included in the final scheme shall be liable to
contribution to the costs of the scheme in accordance
with the provi&ions contained in section 66;
F
(x) calculate the contribution to be levied on each plot
included in the tinal scheme;
(xi) determine the amount to be deducted from, or
added to, as the case may be, the contribution leviable
from a person in accordance with the provisions G
contained in section 67;
(xii) provide for the total or partial transfer of any right in
an original plot to a reconstituted plot or provide for
the extinction of any right in an original plot in
accordance with the provisions contained in section 68· H
•
94 SUPREME COURT REPORTS [1982] I S.C.R.
A (xiii) estimate in reference to claims made before him, after
the notice given by him in the prescribed manner, the
compensation to be paid to the owner of any property '
or right injuriously affected by the making of a town-
planning scheme in accordance with the provisions
contained in section 69;
B
(xiv) draw in the prescribed form the final scheme in accor-
dance with the draft scheme:"
There is a proviso to section 32 (I) which is not relevant for the
purpose of this appeal.
c ....
Section 33 says:
"Except in matters arising out of clauses (v), (vi), (vii),
(ix), (x) and (xiii) of sub-section (I) of section 32, every
decision of the Town Planning Officer shall be final and
D conclusive and binding on all persons."
Section 34 provides an appeal to a Board of Appeal from any
decision of the Town Planning Officer under clauses (v), (vi) (viii),
(ix), (x) and (xiii). Thus the decision of the Town Planning Officer
E is final and conclusive in all matters referred to in the various
clauses of section 32 (1) except those mentioned in (v), (vi), (viii),
(ix), (x) and (xiii). It was claimed on behalf of the appellant that
the Town Planning Officer's decision in the appellant's case was
appealable either under clause (viii) or clause (xiii) of section 32 (!).
The Town Planning Officer has a duty under clause (viii) to calculate
F the increment to accrue in respect of each plot included in the final
scheme (which we will refer to hereinafter as the final plot for
brevity's sake) in accordance with the provisions of section 65.
Under section 65 increment means the amount by which at the date
of the declaration of the intention to make a scheme, the market
value of a final plot calculated on the basis as if the improvements
G contemplated in the scheme had stood completed on that date exceeds
the market value of the same plot when taken into account without
the improvements. The increment is thus the difference in the market
value of the same final plot with the improvements and without the
improvements on the aforesaid date. The value of the original plot
H does not arise for consideration under clause (viii). Rule 17 of the
Bombay Town Planning Rules, 1955 sets out the particulars that a
draft scheme shall contain in addition to the particulars specified in
PRAKASH AMICHAND v. GUJARAT (Gupta, J.) 95
section 25 of the Act. Clause (v) of rule 17 mentions a "redistribu- A
f tion and valuation statement in Form 'B' showing the estimated
amounts to be paid to, or by, each of the owners included in the
scheme''. Form B makes it clear that the increment is the difference
in value of the same final plot in its developed and undeveloped
conditions; Form B keeps the valuation of the original plot distinct
from that of the final plot. The appellant's case therefore cannot B
fall under clause (viii).
Does the case fall under clause (xiii)? Under clause (xiii) the
Town Planning Officer is required to estimate the compensation to
- be paid to the owner of any property or right injuriously affected by
the making of a town planning scheme in accordance with the
provisions of section 69. Section 69 states that the owner of any
c
property or right which is injuriously affected by the making of a
town planning scheme shall be entitled to obtain compensation from
the local authority or from any person benefited or partly from the
local authority and partly from such person as the Town Planning
Officer may in each case determine. It seems obvious that the D
property or right which is injuriously affected by the making of a
town planning scheme is a property or right other than that acquired
for the purposes of the scheme. The property or right affected
remains with the owner who is entitled to compensation for such
injurious affection. When under the Act a plot of land is taken for
the purposes of a town planning scheme, it cannot be suggested that
E
that land itself is injuriously affected;scuh a view is unsupportable both
as a matter of language and having regard to the scheme of the Act.
On behalf of the appellant it was urged that clause (xiii) would cover
the case of the appellant if only we read a few words in that clause
and that we should do so to avoid injustice being done to the
F
appellant and the owners of land similarly situated. That we are
afraid is not possible. We find no compelling reason for restructuring
that clause, and taking acquisition of land to mean 'injurious affec-
tion' of the land acquired would be inconsistent with the entire
scheme of the Act. We may refer to clause 'fourthly' of section 23
(1) of the land Acquisition Act, 1894 which requires the court to take
G
into consideration in determining the amount of compensation to be
awarded for land acquired under that Act, the damage sustained by
the "person interested" "by reason of the acquisition injuriously
affecting his other property''. The expression "person interested"
as defined in section 3 of the Land Acquisition Act means all persons
H
claiming an interest in compensation to , be made on account of the
acquisition of land under that Act. It is made clear in clause
96 SUPREME COURT REPORTS [1982] 1 S.C.R.
A 'fourthly' that the damage is for injurious affection of some property
other than the land acquired. The sense in which the expression
'injurious affection' is used in section 23 (I} of the Land Acquisition
Act is the generally accepted meaning of that expression and we find
nothing in the Act concerned in this case that suggests that it should
be construed differently.
B
It was then argued that if neither clause (viii) nor clause (xiii)
was applicable, then there was no clause in section 32 (I) of the Act
that covers the appellant's case. The contention is not correct. The
owner of an original plot who is not provided with a plot in the
final scheme gets his right to compensation from section 71 of the
c Act which says that the net amount of loss shall be payable to him
by "the local authority in cash or in such other way as may be
agreed upon by the parties".~ The principle for determining the
-
compensation is the same whether an owner of land is given a
reconstituted plot or not; compensation is payable on the basis of
the market value of the plot at the date of declaration of the inten-
D tion to make a scheme. In the appellant's case it would be the value
of the original plot and not the final plot. In determining the
difference between the total of the values of the original plots and
the total of the values of the plots included in the final scheme, the
Town Planning Officer under section 32 (1) (iii) has to find out the
market value of each of the original plots at the date of the declara-
E tion of intention to make a scheme as provided in section 64 (I) (f).
Thus the Act contains the necessary provisions for estimating the
compensation payable to an owner of land who has not been given
a reconstituted plot.
We therefore hold that the High Court was right in finding
that the decision of the Town Planning Officer determining the
F amount of compensation in the appellant's case was not appealable.
In the view we take, Mr. Nariman should be allowed to urge the
grounds concerning the constitutional validity of the Act. This case
may now be placed before a Constitution Bench for hearing. An
application has been filed on behalf of the appellant for leave to
urge additional grounds; this application may also be considered by
G the Constitution Bench that will hear this appeal.
P.B.R. Appeal dismissed.
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