YOGENDRA PAL AND OTHERSversusMUNICIPALITY, BHATINDA AND ANR.

                   YOGENDRA PAL AND OTHERS                                           A
                                v.
                 MUNICIPALITY, BHATINDA AND ANR.

                                   JULY 15, 1994

                (P.B. SAWANT AND DR. AS. ANAND, JJ.]                                 B

        Municipalitie>-Punjab Municipal Act, 19 ll-Section 192( J)(cr
Ha1yana Municipal Act, 1973-Section 203(l)(Crconstitutiona/ity of-Con-
stinition of India, 1951>-Arts. 14, 31 (2), 366( JO), 372 read with Art. 19 (i)(j)
&Art. 31.                      -                                                     C
      Municipalities--Punjab Municipal Act, J9ll-Sections 192(J)(C) and
 161}-Scope of-Conrrast of the provisions--'Transfer' euphemism for acquisi-
tion-No provision for paymelll of compe11satio11 if upto 25% of holding
transferred-Compensation if holding over 25%, but llpto 35% trans-
ferred-No guidelines for amoulll or the time of compensation.                        D.
     Co11stillltion of India, 195!>-Art. 19( J)(f) and Art. 31(2)-Effect of Art.
31(5rSaving of "existi11g /aw"--lmpugned provisions as "existing
Law"-Cltal/enge fails.

         Co11stitution of l11dia, 1951>-Arts. 136 & 32--Court's power to mould       E
relief

       In 1969, the State Government of Punjab declared an area as "un-
built" under Sec. 3(18)(b) of Punjab Municipal Act, 1911. Later a part of
that land belonging to the writ petitioner was transferred to the Municipal
Committee for a Town Planning scheme u/s 192(1)(c) without payment of                F
compensation. The said statutes which gave the Municipal Committee
power of acquisition only provided that the total land transferred could not
exc~ed 35% of the landowner's holding and the land transferred without
payment could not exceed 25% of the landowner's land. The writ petition
which challenged the provision was dismissed on account of laches and a              G
precedent.

      In this court, the petitioner questioned the validity of the transfer of
land without payment of compensation and the constitutionality of Sec.
192(l)(c) and similarly other petitioners challenged validity of Sec.
203(1)(c) of the Haryana Municipal Act.                                        H
                                     693
                          SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A           The appellant contended that compulsory transfer to the Committee
    for the To"n Planniog Scheme "ithout pa)ment of compensation was ultra
    i·ircs Art. 19(1)(1) r/w Art. 31 and the Committee's unbridled discretion in
    transferring land of some and not touching land of others violated Art. 14
    of the Constitution,

B          The respondent's position was that the law being 'existing law' was
    saved by Art. 31(5). Also, the transfer which was effected for framing of the
    Town Planning Scheme did not divest the ownership or possessory rights
    of the land owner and that as the market value of the remaining land of the
    landowner increased with the development they were not entitled to any
C   additional compensation.

          Dismissing the appeals and the writ petition, this Court
                                                                                      ....
          HELD : I.I. The Municipal Committee had been given authority to
    transfer the land.from the land-owner to itself, either by paying compensa-
D   lion or without, depending upon its discretion. No guidelif!es had been
    provided as to when compensation was or was not to be paid to the land-
    owner. If the land transferred from the landowner was less than 25% of his
    holding, no obligation had been placed to pay any compensation. Further,
    the Municipal Committee had been given discretion to pay compensation
    without laying down the principles therefore, if the land acquired was above
E   25% of the,landowner's holding. Thus, the provisions of section 192(1)(c)
    of the Punjab Municipal Act, 1911 and section 203(1)(c) of the Haryana
    Municipal Act 1973 were violative of Article 14 of the Constitution and void
    with effect from the date of the judgment. [703-B, D-E; 707-G]

          1.2. The expression "for public purposes including use as public
F streets by owners of land" did not mean that the land would be transferred
    to the Municipal Committee only for such public purpose which could be
    made use of by owners of the land from whom the land was transferred.
    Utility to members of public in general was envisaged. If the transferor
    landowne,rs also benefited by such purpose as a member of the public it
G   made no difference to the position in law that he was not the exclusive
    beneficiary of such purpose. [704-A-C-D]

          1.3. There is no provision in the Act to suggest that inspite of the land
    being used for public purpose, the possession, ownership or occupation of
    the trnnsferred land remaiued with the landowner and that he could deal
H   with or dispose of the same as desired. It was obvious that the use of the
                       YOGENDRAv. MUNICIPALITY                            695

word 'transferred' was an euphemism for acquisition. [704-E-F; 706-F]            A
      1.4. Even if the transfer increased the value of the remaining land, at
the same time it contributed to the increase in the value of land of all other
landowners and similarly benefited them. There "'as no for the land owner
whose land was "transferred" to alone pay for the increase in value of his
remaining land. ()nly the remaining land of the transferor lando\\-ner           B
benefited by such increase in value, if any, but the whole or the land in
possession of the other landowners also benefited by the accretion in value.
Thus on both accounts there was a clear violation of Article 14 of the
Constitution. In cases where the landowner was unable to dispose the
property the accretion in value may be a burden as various taxes were
calculated on the market value of the property. [707-B-C]
                                                                                 c
      1.5. It was found to be problematic and speculative as to whether the
appreciation in value would be equivalent to or more than the value ofland
transferred assuming the take over for the public purpose increased the
value of the remaining land. [707-D-E]                                           D
         Om Frakash v. Municipality of Bhatinda, AIR (1980) P&H, 254, Over-
                                                                                     i
ruled.

    Ajit Singh v. State of Funjab, AIR (1967) SC 856 and Prakash
Amichand Shah v. State of Gujarat, [1986) 1 SCC 581, distinguished.              E
       1.6 Under Section 169, the land was to be acquired by payment of
compensation for the whole of it and if within 25 years of such acquisition
it was not required for use as a public street it was to be restored to the
original landowner subject to his paying for improvements. However, under
Section 192(1)(c), no compensation was payable to the landowner when the         F
land "transferred" was below 25% of the total land of the landowner and the
rate of compensation it was above 25% was in the discretion of the
Municipal Committee. When the land was so transferred for use as public
street under Section 192(1)(c). the land was to be remain forever with the
Municipal Committee and there was no provision for its restoration to the        G
landowner. Thus, there was a distinct inconsistency between the two sec-
tions. [706-A-D)

       2. The so called transfer, which was nothing but acquisition, was
effected prior to 20.06.79. Being without payment of compensation, it was
hit by Art. 31 (2) of the Constitution as it stood prior to 20.06.79 which H
        696                   SUPREME COURT REPORTS          [1994j SUPP. 1 S.C.R.

A       barred compulsory a�illi$iuon/requisition save for a public purpose and
        save by authority of Ii\;! on payment of compensation. However, Article
        31(5) saved the provisions of any 'existing laws' from the operation of Art.
        31(2). Since both statutes were 'existing laws' they did not violate Article
        31(2). [710·B·C; E]

B             3. The provisions of Section 192(1) (c) of the Punjab Municipal Act,
        1911 and of Sec. 203 (l)(c) of the Haryana Municipal Act 1973 were violative
        of Art. 14 of the Constitution and void prospectively. The Court could
        mould the relief to meet the exigencies of the circumstances and also make
        the law laid down by it prospective in operation, as it would create total
C       chaos and an unmanageable situation for the Municipal Committee if the
        said provisions of the respective statutes and the land acquisitions made
    ·   thereunder were declared void with retrospective effect. [712-F·H; 713-B]

              I.C. Go/ak Nath & Ors. v. State of Punjab & Anr., [1967] 2 SCR 762,
        relied on.
D
              CIVIL APPELLATE/ORIGINAL JU RISDIC TION : Civil Appeal
        No. 818 of 1986 Etc. Etc.

             From the Judgment and Order dated 12.4.1985 of the Punjab &
        Haryana High Court in C.W.P. No. 53 of 1979.
E
              Mrs. S. Bagga for the Appellant.

              H.N. Salve, AK. Mahajan, Ms. M. Moolchandani and Mahabir Singh
        for the Appellants in C.A. No. 814-16/86.

F             M.S. Gujaral, Anand V. Palli, Atul Sharma Mrs. Rakhi Palli, J.D.
        Jain, G.K. Bansal and Ms. Indu Malhotra for the Respondents.

              The Judgment of the Court was delivered by

        SAWANT, J, This is a group of appeals and a writ petition. Although
G the facts differ, they raise a common question of law, viz., whether the
  provisions of Section 192(1)(c) of the Punjab Municipal Act, 1911 and the
  corresponding provisions of Section 203(1)(c) of the Haryana Municipal
  Act, 1973 for compulsory transfer of the land to the Municipal Committees·
  without payment of compensation, are valid.

H             2. For the purpose of this common judgment, we propose to narrate
               YOGENDRAv. MUNICIPALITY [SAWANT,J.]                        697

 the facts in Civil Appeal No. 818 of 1986. That appeal is directed against A
 the decision dated 12th April, 1985 of the Division Bench of the Punjab &
 Haryana High Court in a group of five writ petitions.

       3. On 17th November, 1969, the State Government, under Section 3
 (18)(b) of the Punjab Municipal Act, 1911 (hereinafter refe~red to as the
 'Act') declared an area admeasuring 22.23 acres as unbuil( The said area        B
 was discribed in the Notification as pocket No. 6. Thereafter, on 11th May,
 1976, the State Government under Section 192(3) of the Act sanctioned a
 Town Pfanning Scheme drawn up by the Municipal Committee under
 Section 192(1) of the Act. Under the said Scheme the said area of 22.23
 acres was transferred to the Municipal Committee in terms of the
 provisions of Section 192[1](c) of the Act. The said area included land         C
 admeasuring 11279 sq. yards owned by the writ petitioners before the High
 Court. Since no compensation was paid for the land, the writ petitioners
 challenged the transfer of the land as illegal, it being without payment of
 compensation. The petitioners also assailed the vires of Section 192[1](c)
 of the Act. The challenge to the transfer of the land was also on other         D
 grounds with which we are not concerned here. The High Court dismissed
 the writ petitions on the ground, among others, that the vires was no longer
 open to challenge since it was upheld by the High Court in Om Prakash v.
 Municipality of Bhatinda and Anr., AIR ( 1980) P &H 25 ~. The Court also
 held that the writ petitions suffered from !aches and hence rejected the
 challenge to the validity of the Scheme on that account. Again, we are not      E
 concerned here with the other grounds on which the writ petitions were
 dismissed.

        Admittedly, the challenge to the vires of Section 192[1](c) has been
  repelled by the High Court in other connected matters also, on the ground
· that the issue had been foreclosed by the aforesaid decision of the High       F
  Court in Om Prakash v. Municipality of Bhatinda. We are, therefore,
  concerned with the challenge to the constitutional validity of Section
  192[1](c) of the Act.

        In Om Prakash v. Bhatinda Municipality (supra) the validity of the
 provisions of section 192 (1) (c) of the Punjab Municipal Act, 1911 directly    G
 fell for consideration there. The validity was challenged on the ground that
 the provision violated Articles 14, 19 (1)(1) and 31 of the Constitution. The
 violation of Article 14 was alleged on the ground that the provisions
 conferred unlimited, unguided and arbitrary powers on the authorities to
 transfer the land of some persons and not to touch the land of other            H
    698                   SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.

A persons falling under the Scheme and that the provision provided a scope
    for pick and choose. It was also contended on this score that even the
    purposes for which the provisions had to be made in the Scheme are not
    specified and hence the arbitrariness was writ large on the face of it. This
    challenge was negative by the High Court on the ground that the Legisla-
    ture had made the provisions for the administration of municipalities and
B   the duties of the municipal committees have been elaborately enumerated
    under the various heads in the Act itself, and Section 192 (1) (c) specifically
    mentioned that the land shall be transferred to the municipal committees
    for public purposes including a public street. The Act also made provision
    for a public notice of the purpose for which the Town Planning Scheme
C   was to be prepared. The second ground of attack based on the alleged
    violatio.1 of Article 14 was that the land could be acquired under the Land
    Acquisition Act, 1894, the Punjab Town Improvement Act, 1922 and also
    under Section 192(1)(c) of the Act. If the land is acquired under the former
     two statutes, the land-owner was entitled to the compensation at the market
D    rate whereas if the land was acquired under the provision of Section
     192(1)(c) of the Act, he was deprived of compensation to the extent of 25
     per cent of his holdings. Repelling these contentions, the High Court held
     that the Town Planning Scheme was to be made for the development of
     the unbuilt area which was ultimately to the advantage of the land owners
     whose land fell within that area and it would appreciate to a great extent
E    the value of the remaining land of the land owners. Further, there was,
     according to the Court, no acquisition of the land by the municipal com-
     mittee and the land owners were not divested of the ownership or of
     possession of the land aud there was also no discrimination between the
     owners of land whose lands were so transferred to the municipal committee
F    and other land owners.

          As regards the challenge to the provisions of Section 192[i](c) on thb
   ground of their violating Article 19[1](g) read with Article 31, the High
    Court held that the area of the respondent-Municipal Committee in that
G . case, viz., Bhatinda Municipality was earlier within the territorial jurisdic-
    tion of Patiala State which merged in PEPSU on 22nd May, 1949 by
    PEPSU Municipal Ordinance No. 2006 B.K. After the PEPSU merged with
    the State of punjab in 1956, the provisions of the Act were applied to the
    whole of the area of the erstwhile PEPSU by Act No.5 of 1959. Thus,
    according to the High Court, even before the enforcement of the Indian
H constitution on 26th January, l950 the prnvisions of the Punjab Municipal
              YOGENDRA v. MUNICIPALITY [SAWANT, J.)                        699

Act, 1911 were applicable to the territories which fell within the jurisdiction   A
of the Muncipal Committee, Bhatinda and hence the provisions of Section
192[1J(c) being the "existing law" were saved by Article 31[5] of the Con-
stitution and were not hit by Article 31[2] thereof as they stood then.

        4. The contention of the appellants/petitioner is that the provision
for compulsory transfer of the land to the Municipal Committee for the
                                                                              B
purpose of the Town Planning Scheme without payment of compensation
is ultra vires Articles 19(1) (!)read with Article 31 of the Constitution as
the Articles stood then, since the transfer was prior to June 20, 1979 from
which date the said Articles stood deleted by the Constitution (Forty
Fourth) Amendment Act, 1978. As against this, the contention of the
respondent-Municipal Committee and of the State Government is that the
                                                                                  c
section in question provides for a Town Planning Scheme for unbuilt areas.
The land is taken for a limited purpose of development and for the benefit
of the proprietor whose land is being developed and made legally capable
of being built upon. The object of the Scheme is not to deprive any land
owner of his land but to frame the Town Planning Scheme for his benefit. D
There is no divesting of any right or title of the owner of the land nor is
the owner deprived of his possessory rights over the land. Both the owner-
ship and possession of the land remain with the land owner. There is thus
no acquisition of the land and hence there is no question of payment of
any compensation to the land owner. The right of the land-owner is
restricted to use the land only for the purpose of the Scheme and no E
further. It is, further, contended that the Municipal Committee under the
Scheme provides certain facilities to the land-owner by of way of streets,
parks etc. and develops the land for and on behalf of the land owner and
for the benefit of the better use of the land which remains with him. In fact
the land owners are also benefited in monetary terms because the value of
the land which remains with them appreciates with the development of the F
facilities of roads, parks etc.

       5. In order to appreciate the rival contentions, .i,!/is necessary to
understand the relevant provisions of the Act. Section 3 (13) (a) of the Act
define "street" to mean "any road, footway squ_aj',e, court, alley or passage,    G
accessible whether permanently or temporarily to the public and whether
a thoroughfare or not; and shall include every vacant space notwitlistanding
that it may be private property and partly or wholly obstructed by any gates,
post, chain or other barrier, if heuses, shops or other buildings about
thereon, and if it is used by any person as a means of access to or from
any public place or thoroughfare, whether such persons be occupiers of            H
    700                  SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A   such buildings or not, but shall not include any part of such space which
    the occupier of any such building has a right at all hours to prevent all
    other persons from using as aforesaid". Section 3(13)(b) defines Public
    Street as any street- (i) heretofore levelled, paved, metalled, channelled,
    sewered, or repaired out of municipal or other public funds, unless before
    such work was carried out, there was an agreement with the proprietor
B   that the street should not thereby become a public street, or unless such
    work was done without the implied or express consent of the proprietor;
    or (ii) wJiich under the provisions of section 171, is declared by the
    committee to be, or under any other provision of the Act becomes, a public
    street."

C        Section 3 (17) of the Act defines "public place" to mean" a space
    which is open to the use or enjoyment of the public whether or not private
    property and whether or not vested in the committee."

          Sub-section 18 (a) of Section 3 defines "built area" to mean "that
    portion of a municipality of which the greater part has been developed as
D   a business tr residential area" and sub-section 18 (b) defines "unbuilt area"
    as "an area within the municipal limits which is declared to be such at a
    special meeting o{ the committee by a resolution confirmed by the State
    Government or which is notified as such by the State Government".

E         Section 56 (1) (f) and (g), among other things, define "property
    vested in committee" as follows :

            "(f) all land or other property transferred to the committee by the
            Gove_rnment of acquired by gift, purchase or otherwise for local
            public purposes;
F
            (g) all public streets, not being land owned by Government and the
            pavements, stones and other materials thereof, and also trees
            growing on and erections, materials, implements ·and things
            provided for such streets."

G                                                          (Emphasis supplied)

          Section 56 (2) then states as follows :

             "(2) Where any immovable property is transferred otherwise than
             by the sale by the State Government to a municipal committee for
H            public purposes it shall be deemed to be a condition of such
             YOGF.NDRA 1·. MUN!Cll'ALITY [SAWANT. J.]                     701

        transfer, unless specially provided to the contrary, that should the     A
        property be at any time resumed by government~ the compensation
        payable therefore shall, notwithstanding anything tc the contrary
        in the Land Acquisition Act, 1894, in no case e_xceed the amount
        if any paid to the Government for the transfer, together with the
        cost or the present value~ \vhichc\·cr shall he less, or any buildings
        erected or other \Vorks executed on the land by the municipal            B
        committee."

                                                            (Emphasis ours)

      Section 169 which deals with the powers of the Municipal Committee
in connection with the streets, in claoscs (t) and (g) thereof declares as       c
follows :

        "(!) subject to the provisions of any rule prescribing the conditions
        on which property may be acquired by the committee may acquire
        any land, along with the building thereon, which it deems necessary      D
        for the purpose of any scheme of work undertaken or projected
        in exercise of the powers conferred under the preceding clause.
        and

        (g) subject to the provisions of any rule prescribing the conditions
        on which property vesting in the committee may be transferred,           E
        may lease, sell or otherwise dispose of any property acquired by
        the committee under clause (f); or any land vesting in arid used
        by the committee for a public street and no longer required there
        for, and in so doing may impose conditions regulating the removal
        and construction of building upon it and the other uses to which
        such land may be put :
                                                                                 F

           Provided that land owned by proprietors other than the
        Government shall becon1e the absolute prope1ty of the contniittee
        after it has continuously vested in the committee for use as a public
        street for a period of twenty-five years; but that the possession of     G
        such land that ceases to be required for use as a public street
        before the expiry of twenty-five years from the time that it became
        vested in the cornmittee shall be transferred to the proprietor
        thereof, 011 payment by him of reasonable compensation to the
        committee for improvements of such land, a1rd subject to such
        restrictions as the committee may impose a~ the future use of such       H
    702                  SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A           land, and that should the proprietor be unable or unwilling to pay
            the amount of ~uch compensation the committee may, subject to
            such conditions as it may deem fit sell the land, and shall pay to
            the owner the proceeds, if any, over and above the amount of such
            compensation which shall be paid Into the municipal fund, or may
            dispose of it in such manner as it may deem fit."
B
                                                          (Emphasis supplied)

          Section 192 then provides for building scheme. Its relevant provisions
    read as follows :

c           "192, Building scheme. - (1) The committee may, and if so required
            by the Deputy Commissioner shall, within six months of the dale
            of such requisition, draw up a building scheme for built areas, and
            a town planning scheme for unbuilt areas, which may among other
            things provide for the following matters, namely :
D           (a) the restriction of the erection or re-erection of huildings, or
            any class of buildings in the whole or any part of the municipality,
            and of the use to which they may be put :

            (b) the prescription of a building line on either side or both sides
            of any street existing or proposed; and
E
            (e) the amount of land in such unbuilt area which shall be trans-
            ferred to the committee for public purposes including use as public
            streets by owners of land either on payment of compensation or
            otherwise, provided that the total amount so transferred shall not
            exceed thirty-five per cent, and the amount transferred without
F
            payment shall not exceed twenty-five per cent, of any one owner's
            land within such unbuilt area."

                                                           (Emphasis supplied)

G         6. The contentions advanced on behalf of the respondents that there
    is only a transfer of the land from the land 0 owner to the Municipal
    Committee and there is no acquisition of the same and that the transferred
    land does not vest in the Municipal Committee and that the possession
    remains with the land-owner, are contrary both to the factual and legal
    pmition. Section J.92 of the Act gives powers to the Municipal Committee
H   to draw up a building scheme for built area and a Town Planning Scheme
               YOGENDRA i·. MUNICIPALITY [SA WANT. J.]                     703

for unbuilt area. We are not here concerned \Vith the huilding scheme for         A
t.hc huilt area. We are concerned with the town planning scheme for the
unbuilt area. The provisions of Section J92(l)(c) envisage that the
Municipal Committee prepares a To\Vn Planning scheme for the unbuilt
area. The Scheme may, an1ong other things, providl.'. for the extent of land
 in such unbuilt area which shall be transferred to the Commitlce for "puhlic
 purposes including use as public street" by O\Vncrs of land. The transfer nf     B
 the land undl:r the said provis,ion is further to be either on payment of
 compensation or otherwise. This means that the Municipal Committee is
 given authnrity to transfer the land from the land-owner to itself either by
 pa}ing cun1p1:ns<1tion or without any compensation depending upon its
 discretion, since there is no gui<lclinc providc<l by the said provision a~ to
 when compensation is or is not to be pai<l to the land-o\vner. There is,
                                                                                  c
 however, a restriction contained in the said provision both on the maximum
 amount of land that may be so transferred from a land-owner as well as
 the maximum amount of the land which may be transferred without pay-
 ment of compensation. The proviso says that the total amount of land that
 may be transferred from any one owner shall not exceed 35 per cent of his        D
 land and the land that may be transferred from him without payment uf
 compensation shall not exceed 25 per cent of his land. It will thus be
 obvious that, in the first instance, if the land transferred from the land-
 owner is less then 25 per cent of his holding, there is no obligation to pay
 any compensation. Secondly, there is on guideline given in the Act as to
 v. hcn the compensation is to be paid or denied to the land-owner. The very
 1                                                                                E
 fact, however, that the said provision provides for compensation - whether
 dL'cretionary or obligatory - depending upon the amount of land trans-
 ferred from the land owner, shows that the Legislature was aware of the
 fact that by such transfer, the land-owner will stand deprived of his rights
 and interests in it Otherwise, even the said provision for payment of
 compensation is without any purpose. Further, there is no provision in the       F
Act which si10ws that the possession of the land is to remain with the
 land-owner even after it is transferred to the committee. On the contrary,
the provision envisages the transfer of the land for public purposes includ-
ing for use as public street "by owners of the land". The expre.'5ion "poblic
purpose" has not been defined in the Act. However, the expressions "public        G
street" and "public place" have been defined and we have reproduced the
'aid definitions earlier. It cannot be denied that the expression "public
purpose" is of a wide import and any purpose of public utility, of welfare
of the public and in public interest which the Municipal Committee under
the hi\V c:Jn cater to, \Vould be covered by the said expression. In \Vil!
include pub~ic streets, parks and gardens, drainage, lanes an<l byt:-lanc.::...   H
    704                   SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A  public buildings etc. The expression "for public purposes including use as
   public streets by owners of land" cannot be construed to mean that the land
   would be transferred to the Municipal Committee only for such public
   purpose or purposes which can be made use of by the owners of the land
   from whom the land is transferred. The word "including" only suggests that
   the public purpose for which the land is transferred may be of relevance
B also to the owners of the land whose land is so transferred. ll is not
   necessary that in all cases it should be so. Secondly, the use of the said
   expression suggests that the purposes concerned cannot be of benefit only
   and exclusively to the transferor land-owner. If that were so, the expres-
   sions "public purpose" and"public street" used in the said provision would
C be erroneous. What is more, no land could be transferred compulsorily for
   such private purpose. On the other hand, the use of the said expressions
   clearly shows that the purpose for which the land is to be transferred to
  ·the Municipal Committee is of utility to members of the public in general.
   The fact that the transferor land-owner is also benefited by such purpose
   as a member cif the public makes no difference to the position in law that
D neither he is the exclusive beneficiary of such purpose nor is the purpose
   meant for his benefit alone. On the other hand, the definitions of expres-
   sions, "public street" and "public place" show that the public purpose
   intended to be served by the transfer of the land is and has to be of use
   and benefit to the general public.

E         7. The contention that the expression used in the said provision being
   transfcrredn and not 11 acquired 11 would show that the rights and intert!sts
    11



  of the land-owner in the land in question are not extinguished and he
  continues to remain the owner thereof, the transfer being only for a limited
  purpose, has only to be stated to be rejected. As pointed out above, them
  is no provision in the Act to suggest that in spite of the land being used
F for a public purpose, the possession, ownership or occupation, of the
  transferred land remains with t.he land-owner and that he can deal with or
  dispose of the same as he desires. In fact, the provision shows that he can
  exercise his rights over the land so transferred only as a member of the
  public and no longer as the owner of the land. His rights viz-a-vis the
G transferred land are on par with those of the other members of the public.
  It is also not correct to say that the purpose is limited. We have been unable
  to understand the expression "limited" in the present context. It is not
  suggested that the purpose for which the land is taken is of a limited
  duration and that the land would be restored to the land-owner after the
  purpose is over. In fact, even for such use of the land for a limited period,
H the land-owners will have to be compensated suitably.
             YOGENDRA v. MUNICIPALITY [SAWANT,J.]                      705

        We may in this connection contrast the provisions of Section 192(1) · A
(c) with those of Section 169. The said section gives the Municipal Com-
mittee powers in connection with laying and making public streets and
constructing tunnels and other works subsidiary thereto. Clause (I) of the
said section provides for acquisition of any iand along with the building
thereon for that purpose. The proviso to clause (g) of the said section
provides that the land so acquiretl shall become the absolute property of B
the Municipal Committee after it has continuously vested in it for use as a
public street for a period of 25 years and that if the land so acquired is not
needed for use as a public street before the expiry of 25 years from the
time that it became vested in the Municipal Committee, it shall be trans-
ferred back to the proprietor of the land on payment by him of reasonable C
compensation to the Municipal Committee for improvement made on such
land and subject to such restrictions as the Municipal Committee may
impose on the future use of such land. If the proprietor is unable or
unwilling to pay the amount of such compensation, the Municipal Commit-
tee is authorised to sell the land subject to such conditions as it may deem
fit and has to pay to the owner the proceeds, if any, over and above the D
amount of such compensation. Thus, the provisions of Section 169 which
give powers to the Municipal Committee for la~ing public streets show
firstly that the Municipal Committee has to acquire the land for the
purpose by paying compensation to the land owner. Secondly, if such
acquired land continues to be with the Municipal Committee for use as a
public street for a period of 25 years or more, it becomes the absolute E
property of the Municipal Committee in the sense that is no obligation on
the Municipal Committee for restoring its possession to the original owner
of the land even if the land ceases to be used for the purpose thereafter.
However if such land ceases to be required for use as a public street before
the expiry of 25 years from the time that it was acquired there is an
obligation on the Municipal Committee to transfer the same to its original
                                                                               F
owner albeit on payment by him of reasonable compensation to the Com-
mittee for improvement made on such land and subject also to his using
the said land in accordance with the restrictions that the Municipal Com-
mittee may impose. If the original land-ov.ner is unable or unwilling to pay
the amount of compensation, the Municipal Committee is given power to G
sell it. However, in that case, it has to pay to the original land-owner the
proceeds of such sale, if any, which are over and above such compensation.
These provisions of section 169 show that there is a distinct inconsistency
between them and the provisions of Section 192(l)(c). Whereas under
section 169, the land is to be acquired only for making or laying public
streets, under Section 192(1)(c), the land may be "transferred" for any H
    706                   SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A   public purpose including for use as a public street. Further, under Section
    169, the land is to be acquired by payment of compensation for the whole
    of it and, as pointed out above, if within 25 years of such acquisition it is
    not required for use as a public street it is to be restored to the original
    land-owner subject to his agreeing to pay the compensation for the im-
    provement made thereon and accepting the restrictions as may be imposed
B   by the Municipal Committee for its future use. What is more, if he is unable
    or unwilling to take the land back on the said terms, and the Municipal
    Committee sells such a land to others, he is entitled to receive the excess
    sale proceeds, if any. However, under Section 192(1)(c), no compensation
    is payable to the land-owner when the land "transferred" even though for
    use as public street is below 25 per cent of the total land of the land-owner
c   and the rate at which the compensation shall be paid when it is above 25
    per cent, is in the discretion of the Municipal Committee. What is more,
    when the land is so transferred for use as public street under Section
    192(1)(e), the land remains for ever with the Municipal Committee and
    there is no provision for its restoration to the land-owner even if it is not
    required or ceases to be required for use as public street within 25 yee.rs
D
    of such transfer.

           8. The contention that the expression used under Section 192 (l)(c)
    is rrtransferred 11 as against "acquired 11 and, therefore, the landowner does
      not lose his rights or ownership and that the possession continues to be
E     with the land-owner has also no merit. In the absence of any provision in
      the Act which suggests that the landowner continues to be the owner of
      the land or that the land remains in his possession in spite of the transfer
    . and that he is entitled to deal with or disposed of the same as he desires,
      it is obvious that the use of the word 'transferred is a euphemism for
                                               1           11



      "acquisition". We have also emphasised above the fact that if the land was
F     not to vest in the Municipal Committee there was no need for the Legis-
      lature to provide for payment of compensation even when the land so
      "transferred" exceeds 25 per cent of the total holding of the land-owner.
     We arc, therefore, more than satisfied that when the land is 11 transferred"
     under Section 192(1)(c) of the Act, the transfer is nothing short of acquisi-
     tion divesting the land-owner of all his rights as owner of the land.
G
            9. The next contention is that the transfer of the land is also for the
     benefit of the transferor land-owner and in fact the balance of the land
     which remains with him appreciates in value to an extent which more than
     sufficiently compensates him for the loss of the land. Hence there is no
H    need to pay him separate compensation for the extent of land npto 25 per
              YOGENDRAI'. MUNICIPALITY [SAWANT,J.]                      707

  cent transferred to the Municipal Committee. The contention suffers from A
  several fallacies. Jn the first instance, as the provisions of the section
  themselves point out, the land is to be transferred for a public purpose
  including for use as public street. The purpose of the transfer itself suggests
  that the transferor land-owner is not exclusively to be benefited by the
  public purpose. He enjoys the benefit, if any, along with the other members
  of the public. There is no reason why, therefore, he should alone for the B
  said benefit in terms of his land. Secondly, the public purpose which is
 served by the Municipal Committee, assuming it increases the value of the
 remaining land, also contributes to the increase in the value of the land of
 all other land-owner.<, which lands are similarly benefited by the said public
 purpose. There is, therefore, no reason why the land- owner whose land is
 "transferred" for the purpose alone should pay for the increase in the value c
 of his remaining land in terms of the transferred land. In fac~ whereas it
 is only the remaining land of the transferor land-owner which is benefited
 by such increase in value, if any the whole of the land in the possession of
 the other land-owners is benefited by the accretion in value. Thus, on both
 accounts, there is a clear violation of Article 14 of the Constitution to make D
 only the transferor land-owner suffer for the public purpose. What is
 further, it is problematic and is in the realm of speculation as to whether
 the appreciation of the value of the remaining property of the transferor
 land-owner will always be equivalent to or more than the value of the land
 transferred to the Municipal Committee, that the public purpose for which
 the land is taken over contributes to the increase in the value of the E
 remaining property. Lastly, and this is assuming equally important, in many
 cases the accretion to the value of the remaining property may merely be
 on paper and be a poor consolation to the transferor land-owner if he
 cannot or is unable for one reason or the other to sell or otherwise dispose
of the said property. On the other hand, in such cases, the accretion in
value may prove a burden if the property tax, wealth tax, estate duty etc. F
are calculated on the basis of the market value of the property. The
so-called increase in the value of the property may thus prove a liability to
those who cannot dispose of their property. Looked at from any angle, the
argument that the transferor land-owner is benefited because his remaining
property appreciates in value and, therefore, he need not be paid separate
compensation for the land which is transferred, is untenable in law. We G
thus find that the provisions of Section 192 (l)(c) are violative of Article
14 of the Constitution.


       10. The reliance placed on behalf of the respondent on the decisions
of this Court in Ajit Singh v. State of Punjab and Anr., AIR (1967) SC 856    H
    708                  SUPREME COURT REPORTS (1994J SUPP.1 S.C.R.

A and Prakash Amichand Shah v./ State of Gujarat and others, (1986] 1 SCC
    581, is obviously misplaced.

           lnAjit Singh'.1· case (supra), the facts were that some land was owned
    by the Gram Panchayat which was used for common purposes. In a
    consolidation scheme of the village under the provisions of the East Punjab
8   Holdings (Consolidation and Prevention of Fragmentation) Act, 1948,
    some further area was reserved for common purposes after applying cut
    on all the right holders on pro rata basis. The appellant contended that as
    he was a small land-holder holding land within the ceiling limit and some
    land under his personal cultivation had also been taken under the con-
c   solidation scheme without payment of compensation as required under
    second to Article 31-A (1) of the Constitution, the acquisition was illegal
    and confiscatory. The Majority held that under the consolidation scheme,
    all the proprietors of land were to enjoy benefits derived from use of land
    for common purposes and the Panchayat as such was not to enjoy any
D   benefit. Thus, the beneficiary of the modification of rights was no the State
    and hence, there was not acquisition by the State within the meaning of the
    said provision of the Constitution.

           In Prakash Amichand Shah case (supra), the land was acquired for
    a town planning scheme under Scheme 53 of the Bombay Town Planning
E   Act, 1954. The Court held that the acquisition was not violative of Article
    14 of the Constitution on the ground of deprivation of a more favourable
    procedure under the Land Acquisition Act from the point of 'iew of the
    procedure safeguards and from the point of view of the quantum of
    compensation payable. Th•• Act in question was not bad for not extending
    to such acquisition the procedure of the Land Acquisition Act, The Court
F   pointed out that there were two separate provisions, one for acquisition of
    land by the State Government under the Land Acquisition Act and the
    other for acquisition for the purpose of Town Planning Scheme by the local
    authorities under the Bombay Town Planning Act. There was no option to
    the local authority to resort to one or the other of the alternative methods
G   resulting in acquisition. The Court further pointed out that while as regards
    the determination of compensation, it was possible to apply the provisions
    of the land Acquisition Act, with some modifications as provided in the
    schedule to the Bombay Town Planning Act, in the case of land acquired
    either under Section 11 or 84 of that Act, in the case of the lands which
    were needed for the local authority under the town planning scheme which
H   authorised allotment of reconstituted plots to persons from whom original
                 YOGENDRAv. MUNICIPALITY[SAWANT,J.]                     709

    plots were taken, it was difficult to apply the provisions of the Land A
    Acquisition Act. Section 32 and the other financial provisions of that Act
    provide for determination of the cost of the scheme, the development
    charges to be levied and contribution to be made by the local authority etc.
    It was only after that exercise was done that the money was to be paid to
    or demanded from the owners of the original plots depending on the
    circumstances governing each case. It is in that context that the Act had B
    also made special provisions under Sections 67 to 71 for determining

.   compensation payable to the owners of original plots, who did not get the
    reconstituted plots. In the circumstaoces, it could not be said that there
    had been any violation of Article 14. The Court also held that the
                                                                              c
    provisions of the act for giving the value of land on the basis of the value
    prevailing at the date of the declaration of the intention to make a scheme
    instead of on the date of extinction of interest of the owner could not be
    assailed on the ground of not being a provision for payment of compensa-
    tion as stated in Article 31(2) of the Constitution. The Act was also not
    discriminatory merely on the ground of denial of the solatium of 15 per
    cent (which is now increased to 30 per cent). The proceedings relating to D
    the scheme were not like acquisition proceedings under the Land Acquisi-
    tion Act. The Court also held that it could not be said that as a rule the
    State should always pay solatium. The interests of the public are equally
    important.

          It would thus be apparent from the facts of this case that the E
    acquisition was not without payment of compensation and that the amount
    of compensation was to be determined after ascertaining the cost of
    preparing the scheme, the benefit to be derived by the proprietor of the
    land under the scheme etc. Since the acquisition under the Town Planning
    Scheme was for a particular purpose, the Act could separately provide for F
    payment of compensation for such acquisition and that it was not necessary
    that the payment of compensation should have been under the Land
    Acquisition Act. This was, therefore, not a case acquisition of land without
    payment of compensation. It is also interesting in this connection to
    remember that under the Bombay Town planning Act, 1954 there is an
    elaborate procedure prescribed for determination of the compensation to G
    be paid to those land- holders whose land is acquired for the purpose of
    the scheme, for allotment of alternative plots to them, for levy of better-
    ment charges on all the land holders whose lands are benefited by the
    scheme etc. There is no su\:h provision under the present Act. On the
    contrary, under the provisions of Section 192 (l)(c), the Municipal Com- H
    710                   SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A mittee which prepares the Town Planning Scheme is given a naked power
    of acquiring the land without payment of compensation if the land acquired
    is upto 25 per cent of the holding of the land-owner and of payment of
    compensation according to the discretion of the Municipal Committee
    without laying down the principles for payment of compensation if the land
    acquired is above 25 per cent of the holding.
B
           11. In the present case the so-called transfer which as held above was
    nothing but acquisition, was effected prior to 20. 6.1979. Being without
    payment of compensation, it was hit by Article 31 (2) of the Constitution
    as it stood prior to 20.6.1976. The Article provided that no property shall
C   be compulsorily acquired or requisitioned save for a public purpose and
    save by authority of a law which provided for acquisition or requisitioning
    of the property for an amount which may be fixed by such law or which
    may be determined in accordance with such principles and given in such          ·-
    manner as may be specified in such law. As has been discussed above,
D   Section 192(1)(c) of the Act provides for acquisition of the land without
    providing for payment of compensation upto 25 per cent of the land of the
    land-owner and also without providing for either the amount or the prin-
    ciples of fixation of such amount for the remaining 10 per cent of the land.
    Section 192 (l)(c), therefore, clearly violated the provisions of the said
    Article.
E
          However, sub-clause (5) of Article 31 of the Constitution saves the
  . provisions of any existing law from the operation of sub-clause (2) thereof.
    The expression "existing Law" has been defined by sub-clause (10) of
    Article 366 to mean any law, ordinance, order, bye-law, rule or regulation
F passed or made before the commencement of the Constitution by any
    Legislature, authority or person having power to make such law, ordinance,
    order, bye-law, rule or regulation. The laws which were in existence prior
    to the commencement of the Constitution were continued by virtue of the
    provisions of Article 372 of tf.c Constitution subject to such adaptations
    and modifications as may be necessary or expedient to be made by the
G President. Explanation (1) to Article 372 clarifies that the expression "law
    in force" would include a law passed or made by the legislature or other
    competent authority in the territory of India before the commencement of
    the Constitution notwithstanding that it or parts of it may not be then in
    operation either at all or in particular areas .. Since the Punjab Municipal
H Act, 1911 passed by the then legislature was the existing law within the
              YOGENDRAv. MUNICJPAUTY[SAWANT.J.J                           711

meaning of Article 366(10) and was also the "law in force" before the            A
commencement of the Constitution, the provi;ions thereof would not vio-
late Article 31 (2) of the Constitution. Hence, the attack against the
provisions of Section 192 (1) (c) of the Punjab Municipal Act, 1911 and
against the corresponding provisions of Section 203 (1) (c) of the Haryana
Municipal Act, 1973 on the ground of their violation of Article 19(1) (f)
                                                                                 B
read with Article 31 as they stood then, must fail. It is no disputed that the
Haryana State was formed w.e.f. l.11.1966 with part of the territories which
earlier formed part of the State of Punjab and which were governed by the
Punjab Municipal Act, 1991.

      12. We may now state in brief the facts in each case before us.            C

CA.365611987 & W.P. 569 of 1987

       The appellant and the petitioner-Society (hereinafter referred to as
the 'petitioner') is an owner in possession of the land measuring 2420 sq. D
yards situated within the revenue limits of village Bohar. The petitioner had
constructed pucca foundations around the disputed land since long and
wanted to raise boundary walls over those foundations. The respondent-
Rohtak Municipal Committee, Haryana, however, restrained the petitioner
from doing so and also intended to dispossess the petitioner from the land
by force without following the due process of law. The petitioner filed a E
suit before the sub-Judge, Rohtak claiming that the Municipal Committee
had no right, title or interest over the land and for restraining it from
interfering with the peaceful possession of the petitioner of the land. The
Municipal Committee resisted the suit on the ground that the suit property
being situated in the municipal area of the Rohtak city, was not agricultural
land and that Town Planning Scheme No. 9 (Supplementary) had been F
framed on 31st May, 1977 in the said area and the land was required for
park and a park had actually been laid out on the land and was bounded
by barbed wires. Thus, according to the Municipal Committee, the land
was reserved for the benefit of the public and for the welfare and comfort
of the inhabitants of the locality. The suit was dismissed and the firs appeal G
filed by the petitioner was also dismissed by the Additional District Judge,
Rohtak. The second appeal was reject by the High Court in limine. The
petitioner has, therefore, filed this appeal and has-also filed the writ
petition separately challenging the vires of Section 203 (l)(c) of the
Haryana Municipal Act, 1973. The writ petition was admitted and is on
board along with the present appeal. We are dismissing the writ petition, H
    712                  SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A since it is not maintainable. The appellant has already filed the present
    appeal and has challenged the decision of the High Court, which decision
    rests on the validity of Section 203(1)(c) of the Haryana Municipal Act of
    1973.

    CA. 2535 of 1981
B
           The appellant is an exclusive owner of a plot measuring 300 sq. yards
    comprised in Khasra No. 6165/2049 situated at Bhatinda. The respondent·
    Bhatinda Municipal Committee framed a Town Planning Scheme known
    as Town Planning Scheme of Area No. 2 Part III under Section 192(1) of
C   the Punjab Municipal Act, 1911 and the Government sanctioned the same
    on 1/2nd March, 1977. By virtue of the said scheme, 66 per cent of the land
    of the appellant was transferred to the Municipal Committee for park and
    road. The appellant filed a writ petition before the High Court challenging
    the scheme and vires of Section 192 (l)(c) of the Act on the ground of the
    violation of Articles 19 and 31 of the Constitution. The High Court by a
D   decision dated 23.3.1980 dismissed the petition both on the ground of delay
    as well as on the ground that the issue was concluded in Om Prakash v.
    Municipality Bhatinda and Another, AIR (1980) P. & H 254.

    CA. NOS. 814-816 OF 1986

E         In these appeals the appellants are the owners of lands parts of which
    were transferred under the Town Planning Scheme to the respondent·
    Bhatinda Municipal Committee. The Scheme was prepared by the
    Municipal Committee and sanctioned by the Government on 11.5.1976.
    The lands are transferred under the Scheme variously for streets, green
    parks, pavements parking and open space etc. under Section 192(1)(c) of
F   the Act.

        13. As held above, the provisions of Section 192 (l)(c) of the Punjab
  Municipal Act, 1911 and of Section 203 (l)(c) of the Haryana Municipal
  Act, 1973 are violative of Article 14 of the Constitution. Hence the acquisi·
G tions of the appellants' land under the respective provisions were bad in
  law. The question still remains as to what relief the appellants can be
  granted. It is now well-settled by the decisions of this Court beginning with
  J.C. Go/ak Nath & Ors. v. Stlite of Punjab & Anr., [1967] 2 SCR 762 that
  the Court can mould the relief to meet the exigencies of the circumstances
  and also make the law down by it prospective in operation. We are
H informed that till date the Municipal Committees in both ,Punjab and
              YOGENDRAI'. MUN!ClPALITYISAWANT.J.J                           713

Haryana States have similarly acquired lands for their respective town             A
planning schemes and in many cases the schemes have also been com-
pleted. It is only some of the land-owners who had approached the courts
and the decisions of the courts have become final in many of those cases.
It would not, therefore, be in the public interest to unsettle the settled state
of affairs. It would create total chaos and an unmanageable situation for
the Municipal Committees if the said prm·isions of the respective statutes         B
and the land acquisitions made thereunder are declared void with
retrospective effect. We, therefore, propose to declare that the concerned
provisions of the two enactments would be void from the date of this
decision.

      14. This judgment will not prevent the respondent-State Govern-              c
ments from suitably amending Section 192(1){c) of the Punjab Municipal
Act and Section 203 {l)(c) of the Haryana Municipal Act as the case may
be, and making appropriate provisions in the statutes on the lines of the
enactments prevailing in other States for making the town planning scheme
such as the Bombay Town Planning Act, 1954..                                       D
      15. Hence, while we hold that the provisions of Section 192(l){c) of
the Punjab Municipal Act, 1911 and of Section 203 {l)(c) of the Haryana
Municipal Act, 1973 being violative of Article 14 of the Constitution are
void with effect from the date of this judgment and set aside the impugned
decision of the High Court, we for the reasons already stated, in the              E
peculiar facts of these cases, dismiss the appeals and the writ petition.

      In the facts and circumstances, ho\vever, we direct that the respon-
dent-Municipal Committee in C.A. No. 818 of 1986 shall make an ex-gratia
payment of Rs. 30,000 to the appellants therein and the respondent··
Municipal Committees in each of the C.A. Nos. 814-16 of 1986, 2535 of              F
1981 and C.A. 3656of 1987 shall make an ex-gratia payment of Rs. 5,000,
to the appellants in the respective appeals.

A.G.                                              Appeal and W.P. dismissed.